Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEIIORY OF JUDGE DOUGLASS BOARDMAN FIRST OEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS ^2£--XJ i^r» < .^^ C « l 2i l L 0n,ver,lt y Library KD 1815.3.P96 1887 v.2 Pri, ?lMS,'.,.BteJ of admiralty and mari 3 1924 022 453 371 (JtfrnHl IGaro ^rljaoi Kthranj Cornell University Library The original of this 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/cu31924022453371 PEITCHAEDS' DIGEST OP ^ktralig mtir fpritirae f ak THIRD ZEZDITIOHST. Vol. II. W ^£f PRITCHARDS' DIGEST OF gimiraltir and limiting late, THIRD EDITION BY JAMES C. HAMEN, OF THE INNER TEMPLE, R ARRIS TER-AT-I ATT, AND W. TARN PRITCHARD, ■author of \%t jFirst CBUftian. usTCLTJiDiisra- cases oisr Qbmgt, (Ramaj* t& (800b*, anir ggfcrine Jftimrcnce BY J. P. ASPINALL and GOEDON SMITH, BARHISTEIIS-AT-LAW, AND W. BENNING PEITCHAED, SOLICITOR. WITH ifrrte 0! fa-ea an jfmtcjr mrtr oi jw Jrrmp: §Jafo By ALGEENON JONES, F?-«»cA Advocate, AND OTHER FOREIGN JURISTS. Vol. II. LONDON: BUTTEBWORTHS, 7, FLEET STEEET, Safo fufclisfrm to i\t iwww'a mart ocellmt ^sjisfg;, DUBLIN: HODGES, FIGGIS & CO., GRAFTON STREET. CALCUTTA : THACKER, SPINK & CO. MELBOURNE : G. ROBERTSON & CO. . MANCHESTER : MEREDITH, RAY & LITTLER. EDINBURGH: T. & T. CLARK; BELL & BRADFUTE. 1887 LONDON : FEINTED BY C. F. EOWOKTH, GREAT NEW STREET, FETTEE LANE, B.C. ( 1129 ) MORTGAGE. 1. Generally .p. 1129 3. Jurisdiction of Admiralty Divi- sion 1132 3. Jurisdiction of Admiralty Court before the Judicature Acts 1132 4. Registration. 1. Generally 1133 2. Elsewhere than at the Some Port. (a) Certificate of Mortgage 1134 3. Transfer 1136 4. Transmission 1137 5. Discharge ... 1137 6. Effeet of Non-registration. See tit. " Owners," Pt. I. e. 4. 7. Equitable Claims unregistered 1138 5. Sale of Ship 1139 6. User of Ship 1140 7. Bankrupt Mortgagors 1141 8. Bankrupt mortgagees .p. 1143 9. Priority. 1. Mortgages inter se 1143 2. Other Liens 1144 10. Liability 1145 11. Bight to Freight. See tit. "Goods, Carriage of—," Pt. VIII.o. 2, p. 597. 12. Mortgagors and Mortgagees as Parties to Actions. See tit. "Practice." 13. Accounts. See tit. " Reoistear and Merchants." 14. Assignment by Mortgage of Freight. See tit. " Goods, Car- riageof— ,"Pt.VII.c.584; Pt.VIII. pp. 597 and 600 ; Pt. X. o. 4, p. 611. 15. French Law .1147 1. Generally.* 1. A registered ship or any share there- in may be made a security for a loan or other valuable consideration; and the mortgage creating such security shall be in Form I. in the schedule, or as near thereto as circumstances permit. See the M. S. Act, 1854 (c. 104), s. 66. 2. A mortgagee shall not by reason of his mortgage be deemed to be the owner of a ship or any share therein, nor shall the mortgagor be deemed to have ceased to be owner of such mortgaged ship or share, except in so far as may be neces- sary for making such ship or share avail- able as a security for the mortgage debt. Ibid. s. 70. 3. Under sect. 69 of the M. S. Act, 1854 (c. 104), the only effect of an omission to register a mortgage of a ship is to post- pone the mortgagee's claim to that of a subsequent mortgagee or transferee whose mortgage or transfer is registered before it. Therefore the non-registration of the mortgage affords no answer to the claim of the first mortgagee to freight earned by the ship as against a purchaser of the cargo, without notice of the mort- gagee's title. Keith v. Burrows, 1 C. P. D. 722 ; (overruled, 2 C. P. D. 163 ; 2 App. Cas. 636, on other grounds). 4. Under the 66th section of the M. S. Act, 1854, and the 3rd section of the M. S. Act Amendment Act, 1862, the court will look behind the register to the real character of transactions between co-owners, and treat as a mortgage that which is on the face of it an absolute transfer, if it should appear that such was the intention of the parties. The In- nisfallen, 1 A. & E. 72 ; 35 L. J. Adm. 110; 2 Asp. 470. 5. Semble, the Court would in some cases recognize an agreement by which a person might be for some purposes an absolute owner, and for others a mort- * (1) As to the legal history of the right to mortgage ships, see Maude & Pollock, 4th ed. 54, n. ; and Maclachlan on Merchant Ship- ping, 3rd ed. pp. 41—52. (2) Foreigners are allowed to be mort- gagees of a ship. See Instructions to Eegis- trars. (3) A bond bad as a bottomry bond maybe good as a mortgage of the vessel, but if the laws of the state where it is made require a p. mortgage to be put on record and the mort- gaged property to be passed to the mort- gagee, these provisions must be complied with, or such a bond is bad as a mortgage. Greely Y.Smith, 3W. &M.236. [American.] (4) Where a tender of the debt was made to the mortgagee, in pursuance of an agree- ment, it was held that interest should not be cast on the debt after the tender. McNiel v. Call, 19 N. H. 403. [American.] 4 D \ \) 1130 MORTGAGE. 1. Generally. gagee, if such an agreement -were clearly proved and definite. The Innisfallen, 1 A. & E. 72; 35 L. J. Adm. 110; 2 Asp. 470. 6. Under the 70th section of the M. S. Act, 1854, a mortgagee not in possession cannot maintain an action of restraint. Ibid. 7. A hill of sale of a ship, though in form absolute, may operate at law only as a mortgage. Gardner v. C'azenove, 1 H. & N. 423 ; 26 L. J. Exch. 17. See also Whitfield v. Parfitt, 4 De Gex & Sm. 240 ; 17 L. T. 161 ; Myers v. Willis, 17 C. B. 77 ; Langton v. Barton, 5 Beav. 9. 8. Evidence as to the meaning of the expression " legal mortgage," --when ap- plied with reference to ships, whether implying " a first mortgage," or " a re- gistered mortgage executed with all legal formalities" considered. Thompson v. Clerk, Q. B. Nov. 7, 1862 ; 1 Asp. 256. 9. Under the circumstances, held, upon the construction of certain instruments, that, taken together, they did not operate as a mortgage, hut as an absolute sale, to which was attached a conditional right of repurchase, to be exercised on the hap- pening of a given event. Shaw v. Jeffery, 13 Moore, P. 0. 0. 432. 10. A bottomry bondholder is under no obligation to communicate the exist- ence of the bond to the mortgagees of the ship, and is not affected by the owner concealing it from them. The Helgoland, Swabey, 491. 11. A mortgagee cannot set up as a defence to a bottomry bond the laches of the bondholder enforcing it, unless the mortgagee's position has been thereby prejudiced. Ibid. 12. A bottomry bond when due must be enforced within a reasonable time, and a voluntary agreement by the holder and the owner of the ship to postpone pay- ment destroys the lien on the ship as against a mortgagee. The Royal Arch, Swabey, 282. 13. The title of mortgagees is, in ques- tions of bottomry and similar cases, equi- valent to that of the owners. The Mary Ann, 10 Jur. 255; L. E. 1 Adm. & Ecc. 10. See also The Feronia, 2 ibid. 65 ; 37 L. J". Adm, 60 ; 3 Asp. 54 ; and No. 21. 14. A mortgagee is not entitled to ar- rest a vessel for the purpose of enforcing . bail for her safe return to this country. Motion on behalf of a mortgagee for such purpose rejected. The Highlander, 2 W. Eob. 109. 15. A master, who was also co-mort- gagee, brought an action for his wages in the Admiralty Court under the pro- visions of 7 & 8 Vict. c. 112 (repealed by M. S. Eepeal Act, 1854 (c. 120), s. 4); the original owner being a bankrupt, the other mortgagee, who was in possession of the vessel, was allowed to appear in the action, and, besides the wages, the whole accounts between the mortgagees were investigated and settled. The West- moreland, 4 Notes of Cases, 172; The Repulse, 5 Rid. 348. 16. A master was not debarred from suing for his wages under the 7 & 8 Vict, c. 112 (repealed by the M. S. Eepeal Act, 1854 (c. 120), s. 4), upon the ground that he was a co-mortgagee of the vessel at the time. The Repulse, 2 "W. Eob. 40. 17. Semble, in the Court of Admiralty, prior to the Judicature Acts, in cases of account between master, also mortgagee, and his co-mortgagee, a question of un- liquidated damages could not be investi- gated by the registrar and merchants, but must be assessed by a jury. Ibid. 5 Notes of Cases, 362. 18. In an action against ship and freight by a master for his wages, the mortgagee in possession, on appearing to the action and giving bail in the amount of the ac- tion, is entitled to a release of the ship, notwithstanding that the master has be- come liable in respect of bills of exchange drawn by him upon the charterers for ship's use, and that the charterers have become bankrupt. The Ringdove, Swa- bey, 310. But see No. 19, and tit. Masters, c. 7, s. 3, p. 1126. 19. In his accounts against the mort- gagee, the master is entitled to security for the amount for which he is personally liable in respect of necessaries. The Lime- rich, 34 L. T. 708. 20. The mortgagee having & prima facie right to the freight is not required to bring it into court, as in the case of an ordinary holder of freight. The Ring- dove, Swabey, 310. " 21. A master's claim for wages and disbursements, whenever earned or made takes priority over the claims of the mort' gagees. The Hope, 28 L. T. Adm 287 • see also tit. Liens, p. 831. ' _ 22. Where the owner of a ship, w hi c T, is mortgaged, charters her before the mortgagee takes possession, the mort gagee cannot interfere to prevent the execution of the charter-party unless it will materially injure or impair the value of his security, and if the vessel be ar rested in an action of mortgage by the MORTGAGE. 1. Generally. 1131 mortgagee, the court 'will release her on the application of the charterer, unless such injury is shown by the mortgagee. The Fanehon, 4 Asp. N.S. 272. 23. Where shares in a ship are mort- gaged, possession being retained by the mortgagors, and the managing owner, duly appointed by all the co-owners, including the mortgagors, charters the ship for a foreign voyage, and she loads and is about to prooeed on the voyage, the mortgagee, even though he takes possession of his shares before the sailing of the ship but after the making of the charter-party, cannot arrest the ship or demand bail in an action brought by him to oompel payment of his mortgage debt, provided the performance of the charter- party is not prejudicial to the seourity ; and the court will, upon the application of the co-owners, release a ship so ar- rested, and will condemn the mortgagee arresting in costs. The Maxima, 4 Asp. N.8. 21. 24. A mortgagee, though entitled to intervene in an aotion by material men, is not entitled to the release of the vessel on merely giving bail for the payment of the claim of the material men in case such claim should be found to take priority of the mortgage. The Acacia, 4 Asp. 226. [Iiusu.] 25. A. sold shares in a vessel to B., and then mortgaged the vessel to 0. for an amount exceeding the value of the vessel. 0. had no notice of B.'s purchase and duly registered the mortgage. B. then registered his purchase, and insti- tuted a suit in rem claiming an account and sale against his co-owner A. C. in- tervened and claimed a release of the vessel : held, that he was entitled thereto, and to costs from the time B. became aware of his claim. The Eastern Belle, 3 Asp. N.S. 19. 26. Application of the mortgagee of a vessel, to be allowed to bid as a purchaser on the sale of the vessel and part of the cargo under the decree of the court, granted. The Wilsons, 1 W. Rob. 173. 27. Ship mortgaged, and subsequently sent to obtain a oargo of guano. Held, that the expenses of outfit, and of the voyage, had priority over the claim of the mortgagee. Alexander v. Simms, 18 Beav. 80. 28. In the absence of any special agree- ment the mortgagee of the ship has not as such a right to any portion of the cargo. Ibid. 29. A ship was mortgaged for payment of a sum, with interest at £10 per cent., in six months ; the principal not having been paid at that time, held, that interest continued payable at the same rate. Mor- gan v. Jones, 8 Exch. 621 ; 22 L. J. Exch. 232. See Price v. Great Western Rail- way Company, 16 M. & W. 244. 30. A mortgagor of a ship, who re- mains in the ostensible ownership, has an implied authority to confer a right of lien for repairs necessary to keep her sea- worthy. Williams v. Allsup, 10 C. B. N.S. 417; 30 L. J. C. P. 353. See for facts, No. 125. 31. Notwithstanding an undertaking as to damages the Court of Chancery is exceedingly guarded in granting injunc- tions in cases affecting the property in ships. De Mattos v. Gibson, 1 Johns. & H. 83 ; 3 L. T. N.S. 121 ; 30 L. J. Ch. 145 ; 7 Jur. 282. 32. A man may give a valid security on merchandise at sea belonging to him, although at the time he is ignorant of the particulars of which it consists. Ex parte Kelsall, De Gex, Oases in Bank- ruptcy, 352. 33. A power of sale is not essential to a mortgage. Dickinson v. Kitchen, 8 El. & Bl. 789. 34. A mortgage made while the ship is at sea of cargo to be after acquired is valid. Langton v. llorton, 1 Hare, 549. 35. It is not necessary to send notice of a mortgage to the master if possession be taken on the earliest opportunity. Felthamv. Clark, 1 De Or. & Sm. 307. See for facts, No. 148. 36. Mortgages and other securities in contravention of 5 Geo. 4, c. 113 (the Act for the Abolition of the Slave Trade) are void. See sect. 39. 37. In August, 1874, a shipbuilder having overdrawn his account with his bankers offered to give them a security over a ship which he was then building. This offer was declined in the first in- stance, with the intimation, however, that circumstances might arise which might render it desirable for the. bank to have the security offered, whereupon he pro- mised that whenever he was required to give it he would do so. Two months later his account being still largely over- drawn, the bankers requested him to give them the promised security. Ac- cordingly he deposited with them the builder's certificate of the ship, which was still unfinished, and the following day they put a man in possession. At the same time, in consideration of £770 4d2 1132 MORTGAGE.. 3. Jurisdiction of Admiralty Court, fyc. then advanced to him, he assigned to the hankers a trade deht of £2,384 : 2*. %d. as a further security for the general balance of his account. Two days after- wards he filed a petition for liquidation. Held, that the transaction between him and Ms bankers was neither a fraudulent preference nor an act of bankruptcy. Winter, Ex parte, Softley, In re, L. E. 20 Eq. 746 ; 44 L. J. Bank. 107 ; 33 L. T. 62 ; 24 W. E. 68. 38. Held, also, that the deposit of the builder's certificate was a good equit- able mortgage of all his property and interest in the ship, and that, although unfinished, it did not require registra- tion under the Bills of Sale Act, 1854. Ibid. 39. Whether a ship not yet finished, and therefore incapable of registration under the M. S. Acts, is properly called a ship or not, it is a thing capable of as- signment by certificate in the usual way. Ibid. 40. For cases as to what property passes under a mortgage, see tit. Ownebs, Pt. I. c. 8, s. 6. 2. Jurisdiction of Admiralty- Division. 41. See tit. Jubisdiction, Pt. I. c. 6, p. 638. 42. The arrest necessary to found the jurisdiction of the Admiralty Division of the High Court over claims by mortga- gees of foreign ships under 3 & 4 Vict, c. 65, must be in a cause over which the court has jurisdiction : a mere de facto arrest is not sufficient. The Evangelixtria, 46 L. J. Adm. 1 ; 3 Asp. N.S. 264 ; 35 L. T. 410; 25 W. E. 255. 43. The Admiralty Division has juris- diction independently of the Judicature Acts to, and will, on the intervention of the representative of a foreign state or by consent of the parties, entertain a cause of possession or mortgage of a foreign ship belonging to such state, so far as to ascertain the true position of the claimants and the nature of their title, and will, where it is for the advantage of all parties, order a sale of the ship. Ibid. 3. Jurisdiction of Admiralty Court before the Judica- ture Acts.* 44. Whenever any vessel was under arrest of the High Court of Admiralty, or the proceeds of any vessel were in the registry of that court, that court had juris- diction to take cognizance of and decide all claims of any person in respect of any mortgage of such vessel. 3 & 4 Vict, c. 65, s. 3 ; and see No. 52, infra. 45. This section was not intended to confer on the Court of Admiralty a juris- diction (with respect to the claims of mortgagees) different from what it before exercised, but to be remedial in enabling the court to exercise its ordinary jurisdic- tion for the benefit of the suitors, to the full extent which justice required. The Fortitude, 2 W. Eob. 217; 8 Jur. 24; 2 Notes of Cases, 515. 46. The 3 & 4 Vict. c. 65, s. 3, does not extend to all questions arising out of a deed of mortgage, but is confined to the ship itself being mortgaged. A ves- sel only, and not the freight, having been arrested in a suit for wages, the mortga- gees of 48-64ths of the ship obtained a warrant, purporting to arrest the ship and freight. An appearance, under pro- test to the jurisdiction of the court, as far as regards the freight, having been given for the master, the owner of the remaining shares of the ship, the protest sustained. Ibid. 47. The mortgagees of 48-64ths of a ship claimed the balance of proceeds thereof in the registry. The claim was opposed by material men (over whose claims the court, in the then state of the law, had no jurisdiction). The court directed the proceeds to be paid to the mortgagees on the production of their deed, with costs out of the proceeds. The payment of the proceeds as decreed was subsequently opposed by a party alleging himself to be the sole owner and imputing misconduct- to the mortga- gees. The court, without hearing coun- sel, stated that it could not enter into the * (5) For the jurisdiction of the High 182 ; The Portsea, 2 Hagg. 84 ; The Exmouth, Court of Admiralty in cases of mortgage 2 Hagg. 88, n.; The Dewthorpe, 2 W. Eob. before 3 & 4 Vict. c. 65, see The Neptune, 3 83. Hagg. 132; The Fruit Preserver, 2 Hagg, MORTGAGE. 4. Registration. 1133 question of the conduct of the mortgagees, and directed the proceeds to be paid out to them as before decreed. The New Eagle, 10 Jur. 623 ; 4 Notes of Cases, 462. 48. Every registered mortgagee has power absolutely to dispose of the ship or share in respect of which he is regis- tered, and to give receipts for the pur- chase-money ; but if there are more per- sons than one registered as mortgagees of the same ship or share, no subsequent mortgagee, except under the order of some court capable di taking cognizance of such matters can sell the ship or share without the concurrence of every prior mortgagee. See the M. S. Act, 1854 (c. 104), s. 71. 49. In an action for an account brought by a second against the first mortgagee of a vessel, held, that the first mortga- gee who had sold the vessel under the 71st section of the M. S. Act, 1854, was not an express trustee of any part of the proceeds for the second mortgagee, so as to prevent the Statute of Limitations enuring. Banner v. Berridge, 18 Ch. D. 254 ; 50 L. J. Ch. D. 630 ; 4 Asp. 420. 50. Held, further, that though the first mortgagee might- be a constructive trus- tee of any surplus proceeds, evidence eould not be given to show a surplus after six years from the time of the first mortgagee receiving the proceeds without acknowledgment of a surplus. Ibid. 51. Held, however, that the statute would be avoided — (1) by an acknowledg- ment that there was a pending account which would imply a promise to pay; (2) by an express promise to pay any- thing found due. Ibid. 52. The Court of Admiralty had juris- diction over any claim in respect of any duly registered mortgage, whether the ship or the proceeds thereof were under arrest of the court or not. See the Ad- miralty Court Act, 1861 (c. 10), s. 11. 53. "Where an action had been brought to enforce a mortgage under the Ad- miralty Court Act, 1861, and the ship had been arrested, the court would, where no prejudice to third parties could arise, en- force the equities against the mortgagees, under the M. S. Act Amendment Act, 1862. The Catheart, 2 Asp. p. 500. 4. Registration. 1. Generally.* 54. A registered ship or any share therein may be made a security for a loan or other valuable consideration, and the mortgage creating such security shall be in the Form I. in the schedule, or as near thereto as circumstances permit. See the M. S. Act, 1854 (c. 104), s. 66. 55. On the production of such instru- ment the registrar of the port where the ship is registered shall record it in the register book. Ibid. 56. Every such mortgage shall be re- corded by the registrar in the order of time in which it is produced to him for that purpose ; and the registrar shall, by memorandum under his hand, notify on the mortgage that it has been recorded by him, and the date- and hour of such record. Ibid. s. 67. 57. No registered mortgage of any ship or of any share therein shall be affected by any act of bankruptcy committed by the mortgagor after the date of the re- cord of such mortgage, notwithstanding the mortgagor at the time of his becom- ing bankrupt may have in his possession and disposition, and be reputed owner of such ship or share; and such mortgage * (6) When a- registered ship or share therein was mortgaged under previous acts (before 8 & 9 Vict. c. 89), the instrument of mortgage was in the form of an absolute bill of sale, indorsed with a conditional defeas- ance, and took effect, inter partes, from the time it was registered, but depended, for priority over other incumbrances, upon the order in which it appeared, if at all, on the certificate of registry. Under the existing statute a special form of instrument is appro- priated to this purpose. This instrument, when duly executed by the registered oWner, passes the property to the mortgagee, in the meantime as against the mortgagor, and - ■when registered as against third parties. See Maclachlan on Merchant Shipping, 3rd ed. p. 39. (7) As to the duties of English consuls in respect of mortgages under certificates of mortgage, see Instructions to Consuls from the Board of Trade, anno 1856, p. 16. (8) In the state of the law prior to the Merchant Shipping Act, 1854, it was doubted whether a distinction did not exist between mortgages for the security of an antecedent debt and other mortgages. See Douglas v. Russell, 4 Sim. 524 ; 1 Myl. & K. 468 ; Lester V. Payne, 11 Sim. 348, 2nd ed. p. 58. (9) Qucere, whether a mortgage of a ship executed exclusively for the benefit of parties interested under a prior mortgage, and con-' fined wholly to the proceeds of sale to arise under the prior mortgage, would require registration ? Parr v. Applebee, 7 De G. Mi & G. 591 et seq. MORTGAGE. 4. Registration. 1134 shall be preferred to any right, claim or interest of the assignees of such bank- rupt to such ship or share. See the M. S. Act, 1854 (c. 104), s. 72. 58. A claimant of a ship, as against an execution creditor, proved a previous mortgage of the ship to him by the owner for a loan, with a proviso in the mortgage postponing until a date subsequently to the seizure of the ship the power of sale vested in the mortgagee by the M. S. Act, 1854 (c. 104), s. 71, and that such mort- gage was duly rocorded in the register book, but there was no indorsement on the certificate of registry, according to the requirements of 4 Geo. 4, c. 41, ss. 35, 43, and of 3 & 4 Will. 4, c. 55, ss. 34, 42, since repealed. Held, that the mort- gage was not invalid, either as a fraud against creditors, or as not being in ac- cordance with the M. 8. Act, 1854, on the ground of the postponement of the power of sale. Dickinson v. Kitchen, 8 El. & Bl. 789. 59. A mortgagee claimed under a spe- cial contract which did not contemplate a sale by him until two months had elapsed after a demand of payment. Held, that in such a case the circumstance of the mortgagee being registered as ab- solute owner is not conclusive as to the rights of the parties. European and Australian Royal Mail Company v. Royal Mail Steam Packet Company, 4 Kay & J. 676 ; 5 Jur. N.S. 310. 60. A vessel registered by the owner as The City of Brunettes was registered by the mortgagee as The City of Brussels. The identity being established, held that the misdescription did not affect the va- lidity of the registration by the mort- gagee. Bell v. Bank of London, 3 H. & ? T. 730; 28 L. J. Exch. 116. 61. Held, under 8 & 9 Yict. c. 89, s. 34, and 8 & 9 Vict. c. 88, ss. 13, 14 (since repealed, but containing provisions simi- lar to those of the 19th section of the M. 8. Act, 1854), that a boat under fif- teen tons burthen maybe transferred with- out bill of sale, even though it had been registered, the registration being unne- cessary. Benyon v. Cresswell, 12 Q. B. 899 ; 12 Jur. 1086 ; 18 L. J. Q. B. 1. 62. The mortgagee of a vessel duly sold the vessel under a power of sale contained in the mortgage deed. By f mistake a discharge of the ™£™1 ^ J gage was indorsed on the mortgage deed and registered. On the vendor o, .the vessel subsequently presenting 'his bill at sale for registration, registration was re- fused, on the ground that the property m Se vessel had passed to the mortgagor^ The mortgagee and the vendee oi tne vessel havlnf instituted a suit praying that the vendee might be pronounced the sole owner of the vessel, ^rf, that the court had jurisdiction under the 3 44 Viet. c. 65, ss. 3 and 4, and the 1 1th sec- tion of the Admiralty Court Act, 1861, to entertain the suit, and decree made in the terms of the prayer. The Rose, 4 A. & E. 6; 42 L. J. Adm. 11 ; 1 Asp. N.S. 567. 63. A mortgagee of a ship, with notice of a prior equitable mortgage, registered his mortgage. Held, that the prior mort- gagee was postponed to him. Coombs r. Mansfield, 3 Drew. 193. _ 63a. The defendant executed m bpam a mortgage of the M., a Spanish vessel, of which he was master. The mortgage was not registered under the Merchant Shipping Aets. The vessel having come to Queenstown, the transferee of the mortgage commenced an action in the Chancery Division, Ireland, for an ac- count of foreclosure and sale, and an in- junction to restrain the defendant from removing the M. out of the jurisdiction, and duly served the defendant with a copy of the writ. The court granted an interlocutory injunction until the hearing. Clavering v. Aguire, L. B-. 5 Ch. D. 97. [Ieish.] 64. As to how far equitable claims unregistered will now be enforced, see tit. Owners, Pt. I. c. 4. 2. Elsewhere than at the Home Port. (a) Certificate of Mortgage.* 65. Any registered owner, if desirous of disposing, by way of mortgage of the ship or share in respect of which he is registered, at any place out of the country or possession in which her port of re- gistry is situate, may apply to the regis- trar, who shall thereupon enable him to do so by granting a certificate of mort- gage. See the M. S. Act, 1854 (c. 104) s. 76. " * (10) As to the regulations to be observed by the registrar in respect of certificates at the port of Shanghai, constituted by the order a port of registry, see the China and Japan Maritime Order in Council, 6th Aug 1874. 5 ' (11) And as to consular fees for registra- tion, see Order in Council, 1st May, 1885. MORTGAGE. 4. Registration. 1135 66. Previously to any certificate of mortgage being granted, the applicant must state to the registrar, to be by hi™ entered in the register book : — (1) The names of the persons by whom the power mentioned in such cer- tificate is to be exercised, and the maximum amount of charge to be created, if it is intended to fix any such maximum : (2) The specific place or places where the power is to be exercised, or, if no place be specified, then that it may be exercised anywhere, subject to the provisions thereinafter con- tained : (3) The limit of time within which such power may be exercised. Ibid. s. 77. 67. No certificate of mortgage shall be granted so as to authorize any mortgage to be made at any place within the United Kingdom if the port of registry of the ship be situate in the United Kingdom, or at any place within the same British possession if the port of registry is situate within a British possession, or by any person not named in the certificate. Ibid. s. 78. 68. Certificates of mortgage shall be in the form marked M. in the schedule, and contain a statement of the several par- ticulars directed to be entered in the re- gister book, and also an enumeration of any registered mortgages, or certificates of mortgage affecting the ship or shares in respect of which the certificates are given. Ibid. s. 79. 69. Powers of certificates of mortgage shall be exercised in conformity with the directions contained therein. Ibid. s. 80, sub-s. 1. 70. A record of every mortgage made thereunder shall be endorsed thereon by a registrar or British consular officer. Ibid, sub-s. 2. ' 71. No mortgage bond fide made there- under shall be impeached by reason of the person by whom the power was given dying before the making of such mort- gage. Ibid, sub-s. 3. 72. "Whenever the certificate contains a specification of the place or places at which, and a limit of time not exceeding twelve months within which, the power is to be exercised, no mortgage bond fide made to a mortgagee without notice shall be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given. Ibid, sub-s. 4. 73. Every mortgage which is so regis- tered on the certificate shall have priority over all mortgages of the same ship or share created subsequently to the date of the entry of the certificate in the register book; and if there be more mortgages than one so endorsed, the respective mort- gagees claiming thereunder shall, not- withstanding any express or constructive notice, be entitled one before the other according to the date at which a record of each instrument is endorsed on the certificate, and not according to the date of the instrument creating the mortgage. Ibid, sub-s. 5. 74. Subject to the foregoing rules every mortgagee whose mortgage is registered on the certificate shall have the same rights and powers, and be subject to the same liabilities, as he would have had and been subject to if his mortgage had been registered in the register book in- stead of on the certificate. Ibid, sub-s. 6. 75. The discharge of any mortgage so registered on the certificate may be en- dorsed thereon by any registrar or British consular officer, upon the production of such evidence as is hereby required to be produced to the registrar on the entry of the discharge of a mortgage in the re- gister book ; and upon such indorsement being made the estate, if any, which passed to the mortgagee, shall vest in the same person in whom it would, having regard to intervening acts and circum- stances, if any, have vested, if no such mortgage had been made. Ibid, sub-s. 7. 76. Upon the delivery of any certificate of mortgage to the registrar by whom it was granted he shall, after recording in the register book, so as to preserve its priority, any unsatisfied mortgage regis- tered thereon, cancel such certificate, and enter the fact of such cancellation in the register book; and every certificate so cancelled shall be void. Ibid, sub-s. 8. 77. Upon proof at anytime to the satis- faction of the commissioners of customs that any certificate of mortgage is lost, or so obliterated as to be useless, and that the powers thereby given have never been exercised, or if exercised, upon proof of the several matters done thereunder, the registrar may, with the sanction of the commissioners, either issue a new certifi- cate or direct such entries to be made in the register book, or such other matter to be done as might have been made or done if no such loss or obliteration had taken place. Ibid. s. 82. 78. The registered owner for the time being of any ship or share therein, in 1136 MORTGAGE. 4. Registration. respect of which a certificate of mortgage has been granted, specifying the place or places where the power thereby given is to be" exercised, may, by an instrument under his hand in form 0. in the schedule, or as near thereto as circumstances per- mit, authorize the registrar by whom such certificate was granted to give notice to the registrar or consular officer, registrars or consular officers, at such place or places, that such certificate is revoked, and notice shall be given accordingly, and all registrars or consular officers re- ceiving such notice shall record the same, and exhibit the same to all persons apply- ing to them for the purpose of effecting or obtaining a mortgage under the certi- ficate, and after such notice has been so recorded the certificate shall, so far as concerns any mortgage to be thereafter made at such place, be deemed to be re- voked and of no effect, and every regis- trar or consular officer recording any such notice 1 shall thereupon state to the regis- trar by whom the certificate was granted whether any previous exercise of the power to which such certificate refers has taken place. See the M. 8. Act, 1854 (c. 104), s. 83. 79. By the 81st section of the M. S. Act, 1854 (which contains, with reference to a sale abroad, the same directions as the 80th section with reference to mort- gages abroad), it having been enacted that "the power" shall be exercised in conformity with the directions contained in the certificate, it follows that any at- tempt to exercise the power in a manner not in conformity with the directions con- tained in the certificate would be ultra vires, and pass no interest. Orr v. Dick- enson, 1 Johnson, 9; 5 Jur. N.8. 672; 28 L. J. Ch. 516. See also Ex parte Matthews, 2 Yes. 272; Thompson v. Smith, 1 Mad. 395. 80. 0., the registered owner of a ship registered at Prince Edward Island, exe- cuted in compliance with the provisions of the M. S. Act, 1854, a certificate of sale authorizing the defendant M., at Liver- pool, to sell the ship for not less than £1,300. On receipt of the certificate, and before the arrival of the ship, M. sold her to the defendant D. for £900. The registrar at Liverpool having refused to register the bill of sale as not correspond- ing with the power mentioned in the cer- tificate, the sum of £900 was struck out of the bill of sale, and the sum of £1,300 substituted. The plaintiff, O., subse- quently revoked the certificate, but the defendant D. nevertheless, afterwards, caused the biU of sale to be registered. Held, that the power had not been duly executed, that therefore D. had acquired no legal title to the ship, that therefore the registry was void, and, the ship hav- ing been sold by arrangement pending suit, that the plaintiff was entitled to the proceeds of the sale. Orr v. Dickenson, supra. 81. Shipbuilders in America mortgaged a ship, and then, with the consent of the mortgagee, sent her to England for sale. The mortgage was duly registered in America, but by agreement with the mortgagee was not indorsed on the cer- tificate of registry, and the purchaser had no notice of such mortgage. Held, by the Court of Appeal, that the right to the ship acquired under American law must be recognized, but that the pur- chase, having taken place in this country, must be governed by English law. Held, further, that in this case the mortgagee had so acted as to suppress the mortgage, and to make the shipbuilders his agents for sale, and that his legal title must be postponed to that of the purchaser. Hooper v. Gumm, McLellan v. Gumm, 2 Asp. 258, 481 ; 13 L. T. N.S. 187 ; L. E. 2 Oh. 282; 36 L. J. Ch. 605. 3. Transfer. 84. A registered mortgage of any ship or share in a ship may be transferred to any person. The transfer shall be in form K. in the schedule. On the pro- duction of such instrument the registrar shall enter in the register book the name of the transferee as mortgagee of the ship or shares therein mentioned, and shall, by memorandum under his hand, record on the transfer that the same has been re- corded by him, and the day and hour of such record. See the M. S. Act, 1854 (c. 104), s. 73. 85. The plaintiffs were the registered transferees" of a mortgage on the defen- dant's vessel, expressed to be given as security for payment of a sum of money on a given day. At the time of such transfer, and on a subsequent occasion other arrangements were made postponing the date of payment. Subsequent to the date expressed in the mortgage, but before the money became due under the above- mentioned arrangements, the plaintiffs instituted a suit under the 11th section of the Admiralty Court Act, 1861, and ar- rested the vessel. Held, that the court under the 3rd section of the M. g Act MORTGAGE. 4. Registration. 1137 Amendment Act, 1862, must take into account the equities subsisting between the parties, and that the registered trans- fer must be read in connection with the subsequent agreements, and be modified thereby ; that accordingly no default had been made by the owner, and the plain- tiffs were not entitled to arrest the vessel, which must be released, and the plaintiffs condemned in costs and damages. The Cathcart, L. E. 1 A. & E. 314 ; 2 Asp. 500. 86. A British ship was transferred by the registered owner in England to the plaintiffs by mortgage duly registered. The ship sailed to N. 0. in L. By the law of that state transfers of chattels, without delivery of possession, are not recognized. The defendants (who were British subjects, with a branch firm at N. 0., and were aware of the mortgage) commenced actions against the owner for moneys due, and obtained a writ of at- tachment, under which the ship was seized. The mortgagees intervened, and gave bonds to the defendants, who there- upon released the ship. To a bill pray- ing that defendants might be restrained from taking proceedings on the bonds, a demurrer was allowed. Liverpool Marine Credit Company v. Hunter, 2 Asp. 508 ; L. E. 4 Eq. 62. 87. HeU, prior to the M. S. Act Amend- ment Act, 1862 (c. 63), s. 3 (see No. 96), that a contract to assign by way of equitable mortgage the mortgagor's in- terest in a ship, if not made in the form prescribed by the M. S. Act, 1854 (c. 104), was not valid, the M. S. Act, 1854, not giving the court power to en- force against the owner of a ship the same equities it could enforce against the owner of any other property. The Liver- pool Borough Bank v. Turner, 1 Asp. 21 ; 1 J. & H. 159 ; 29 L. J. Ch. 287 ; 7 Jur. N.S. 150 ; 2 De G. E. & J. 502 ; 3 L. T. N.S. 84 ; 6 Jur. N.S. 84 ; 29 L. T. 827. 88. As to the mortgagee's power of sale of the ship, see cap. 5. 4. Transmission. 89. If the interest of any mortgagee in any ship or share becomes transmitted in consequence of death, bankruptcy or in- solvency, or of the marriage of any female mortgagee, or by any-lawful means other than by a transfer according to the pro- visions of this act, such transmission shall be authenticated by a declaration of the person to whom such interest has been transmitted, made in the form L. in the Schedule, and containing a statement de- scribing the manner in which, and the party to whom, such property has been transmitted ; and such declaration shall be made and subscribed, if the declarant resides at or within five miles of the custom-house of the port of registry, in the presence of the registrar, but if be- yond that distance, in the presence of any registrar, or justice of the peace, and shall be accompanied by such evidence as is herein required to authenticate a corre- sponding transmission of property from one registered owner to another. See the M. S. Act, 1854 (e, 104), s. 74. 90. The registrar, upon the receipt of such declaration, and the production of such evidence, shall enter the name of the person entitled under such transmission in the register book as mortgagee of such ship or share. Ibid. s. 75. 5. Discharge. 9 1 . Whenever any registered* mortgage has been discharged, the registrar shall, on the production of the mortgage deed, with a receipt for the mortgage money in- dorsed thereon, duly signed and attested, make an entry in the register book to the effect that such mortgage has been dis- charged ; and upon such entry being made the estate, if any, which passed to the mortgagee, shall vest in the same person or persons in whom the same would, having regard to intervening acts and circumstances, if any, have vested if no such mortgage had ever been made. See the M.S. Act, 1854 (c. 104), s. 68. 92. There is no provision in the M. S. Acts which authorizes the registrar to erase entries of mortgages on their being discharged ; but an entry to this effect may be made under sect. 68 of the Act of 1854. Chasteauneuf v. Capeyron, 7 App. Oas. 127. 93. The discharge of any mortgage so registered on the certificate (elsewhere than at the home port) may be indorsed? thereon by any registrar or British con- sular officer, upon the production of such evidence as is thereby required to be pro- duced to the registrar on the entry of the discharge of a mortgage in the register book ; and upon such indorsement being made the estate, if any, which passed to the mortgagee, shall vest in the same person or persons in whom the same would, having regard to intervening acts and circumstanoes, if any, have vested if 1138 MORTGAGE. 4. Registration. no such mortgage had been made. See the M. S. Act, 1854 (c. 104), s. 80, div. (7). 94. A mortgage of a vessel was made to G., who transferred it to B., and the mortgage and transfer were duly regis- tered. Subsequently G. paid off B., and B. endorsed on the mortgage a receipt "in discharge of the within written security," and the registrar at the request nf B., with the consent of G., entered the discharge of the mortgage. Afterwards it being explained to the registrar that a re-transfer had been intended he made a marginal note that the receipt was signed in error, a re-transfer being intended. Held, that whatever might be the equities between G. and the mortgagor, the original mortgage was at an end under sect. 68 of the M. S. Act, 1854, when the entry of discharge was made, and was not revived by the marginal note. Bell v. Blyth, L. E. 6 Eq. 201 ; L. E. 4 Ch. 136 ; 37 L. J. Ch. 526 ; 38 L. J. Ch. App. 178 ; 3 Asp. 182. 95. Where an entry on the register has been made by mistake, the proper course is to apply to the Admiralty Divi- sion of the High Court for an order to rectify the mistake. The Rose, L. E. 4 A. & E. 6. 6. Effect of Non-registration. 96. See tit. Owners, Pt. I. c. 4. 7. Equitable Claims unregistered.* 97. The expression " beneficial interest" whenever used in the second part of the principal act (the M. S. Act, 1854), in- cludes interests arising under contracts and other equitable interests, and the intention of that act is declared to be that, without prejudice to the provisions contained in the said act for preventing notice of trusts from being entered in the register book, or received by the registrar, and without prejudice to the powers of disposition, and of giving receipts, con- ferred by the said act on registered owners and 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 per- sonal property. See the M. S. Act Amendment Act, 1862 (c. 63), s. 3. 98. The law as to the effect of a trans- fer of a ship which is in form absolute, but is in reality only intended as a secu- rity for an advance, is not altered by the M. S. Act, 1854, and the provisions of s. 66 of that act do not prevent the owner who has executed a bill of sale absolute in its terms from showing, as before, that it was intended to operate as a security only. The M. S. Act Amendment Act, 1862 (c. 63), s. 3, is a statutory declaration that this is the true interpretation of the act. Ward v. Bed, 32 L. J. C. P. 113. 99. Held, prior to the amending act, that an equitable title of a mortgagee would not prevail against the legal title of registered owners. McLartyv. Middle- ton, 1 Asp. 114. 100. A registered mortgagee of a ship deposited with a creditor the instrument of mortgage thereof, and subsequently became bankrupt. Held, that such de- posit took the ship out of the order and disposition of the bankrupt, and consti- tuted the creditor an equitable mortgagee of the ship. Lacon v. Liffen, 32 L. J. Ch, JiO. 101. A., the guardian of an infant the registered owner of a vessel, procured advances from F. for the repair of the vessel Subsequently A. mortgaged the vessel to P. m a manner that amounted to a sale. P. at the time had notice that A. was acting as guardian of the infant. In a suit instituted by the infant for an account held, that A. hadno power under the M. S. Act, 1854 (c. 1041 8 qq tT=lii or mortgage the ship onl'ehaK he ^v o^ an r that F - was not entitled to any other hen upon the vessel than the S?T° r pTr yre P airs - MichaeT*. f2?l62 R7%95;38L - J -^29; Pt!i 2 -c S 4. eNO ' 8L Seealso ^^ or vessel, or any share thereof. Sbr »i? sect. 3 of the Bills of Sale Act, 1881 S0 MORTGAGE. 9. Priority. 1143 to him. In August, 1856, L. assigned the equity of redemption in the ship to the plaintiff, and on the 2nd September he became bankrupt. On the 4th Sept. the plaintiff sent to G. to take possession of the ship, tendering to M. £900, being the amount he thought due to him. The ship, which had previously been adver- tised for sale, was sold by M. to the de- fendants, who were registered as owners. Some of the bills drawn by A. on L. and remitted to M. were dishonoured, but the amounts credited to M. by A. remained undiminished and undisturbed. Upon the plaintiff filing a bill to have the sale of the ship set aside, and for an account, held, that as M. had consented to substitute for the remittance a credit in the general monthly account, and as the bills remitted were not in respect of those particular items, but indiscriminately for collection, he had no right to select any particular item of credit, and attribute the dishonoured bill to that item, so as to prejudice third parties. M'Larty v. Middleton, 9 W. E. 861 ; 4 L. T. N.S. 852. 139. Held, that M. was not justified in selling the ship on the 1 9th September, as nothing was due to him at that time beyond the £900; he was, therefore, liable to pay the plaintiff the value of the ship beyond that sum. Ibid. 140. Mortgages of ships having been deposited with bankers in security of an overdrawn account ten-, days before the mortgagors were adjudged bankrupts, held that the bankers had a lien on the proceeds of the ships. As by the M. S. Act no valid assignment could be made without the production of the mortgages, they were not in the order and disposi- tion of the bankrupt. Bill of sale exe- cuted as a security for the debt eight days before bankruptcy held invalid, being an act of bankruptcy, upon the authority of Bittlestone v. Cooke, 6 Ell. & B. 307; Hutton v. Crutwell, 1 Ell. & Bl. 15, dis- tinguished ; Lacon v. Liffen, 1 Asp. 262. 141. By the law of Jersey the hypo- thec of moveables, unattended with pos- session, is not recognized, and registration of a debt is material only as it affects im- moveable property. Successive mortgages were made to two different persons for advances to build a ship. The instru- ments were registered on the same day, the mortgagor having become bankrupt. Held, that (after the claim of the ship- wrights) the mortgagee's claims ranked together as liens on the vessel, and not according to date. Hayley v. Bartlett, 1 Asp. 90. See also No. 151, infra. 8. Bankrupt Mortgagees. 142. A registered mortgagee of a ship deposited with a creditor the instrument of mortgage thereof, and subsequently became bankrupt. Held, that such de- posit took the ship out of the order and disposition of the bankrupt, and consti- tuted the creditor equitable mortgagee of the ship. Lacon v. Liffen, V.-C. S. Af- firmed on appeal by the Lord Chancellor, 32 L. J. Oh. 25; 11 W. B. 135; 7 L. T. N.S. 411. 9. Priority. 1. Mortgages inter se.* 143. If there is more than one mort- gage registered of the same ship or share, the mortgagees shall, notwithstanding any express or constructive notice, be en- titled in priority according to the date at which each instrument is recorded in the register books, and not according to the date of the instrument. See M. S. Act, 1854 (o; 104), s. 69. 144. Whenever the certificate for mort- gages elsewhere than at the home port contains a specification of the place at which, and a limit of time not exceeding twelve months within which, the power is to be exercised, no mortgage bond fide made to a mortgagee without notice shall be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given. Ibid. s. 80, sub-s. (4). 145. Every mortgage which is duly registered on the certificate shall have priority over all mortgages of the same ship or share created subsequently to the date of the entry of the certificate in the registry book ; and if there be more mortgages than one so endorsed, the re- spective mortgagees claiming thereunder shall, notwithstanding any express or constructive notice, be entitled according to the date at which a record of each mortgage is endorsed on the certificate, and not according to the date of the * (15) As to the priority of mortgages under the system of registry adopted before the present act, see Ex parte Jones, 2 Tyr. 671 ; S. 0. 2 0. & J. 513; Maude & Pollock, 4th ed. p. 57. 1144 MORTGAGE. 9. Priority. mortgage. See M. S. Act, 1854 (e. 104), s. 80, sub-s. (5). 146. Subject to the foregoing rules every mortgagee whose mortgage is re- gistered on the certificate shall have the same rights and, powers, and he subject to the same liabilities, as he would have had and been subject to if his mortgage had been registered in the register book instead of on the certificate. Ibid, sub-s. (6). 147. No registered mortgage of any ship or share shall be affected by any act of bankruptcy committed by the mort- gagor after the date of the record of such mortgage, notwithstanding such mortga- gor at the time of his becoming bankrupt may have in his possession and disposi- tion, and be reputed owner of, such ship or share ; and such mortgage shall be preferred to any right or interest "in such ship, or share, which may belong to the assignees of such bankrupt. Ibid. s. 72. 148. The owner of a vessel made a mortgage of it and of the cargo in London to A., whilst the vessel was on a whaling voyage to the South Seas, subject to two prior mortgages thereof, and the third mortgagee forthwith gave notice of his mortgage to the prior incumbrancers. The master of the vessel afterwards put- ting into Sydney transhipped the oil taken on the voyage to another vessel consigned to consignees in London, who honoured his bill of exchange on them upon having a lien on the consignment. The mort- gagor induced B. to advance him £1,000 on a mortgage of the cargo so transhipped and consigned without notice of any other charge thereon, except the lien of the consignee. B. gave notice of his mort- gage to the consignee. A., as soon as he knew of the consignment (but subsequent to B.'s notice), gave notice to the con- signee of the mortgage to him ; and after such notice the consignee, after satisfying his own lien, paid over the balance of the proceeds of the oil to B. Held, that A. having done all he could towards possession, was entitled to priority over B. Feltham v. Clark, 1 De G. & Sm. 307. 149. Eegistered first mortgagees of a ship, with power of sale, took from the mortgagor, by an unregistered document, a declaration that the mortgage should be a security, not only for the mortgage debt, but for such sums as might, for the time being, be due from the mortgagor. Sub- sequently another incumbrancer took a registered mortgage, expressed to be sub- ject to the first mortgage, but not referring to the unregistered charge, of which, however, the last mortgagee did not deny having had notice when he took his security : Held, that the unregistered document was not merely a further charge but a new security, and that the 8 & 9 Vict. c. 89, s. 34 (since repealed), excluded it from priority over the last mortgage. Parr v. Applebee, 7 De G. M. & G. 585. 150. A mortgagee of a ship, with notice of a prior unregistered equitable mort- gage, registered. Held, that the prior mortgagee was postponed to him. Coombs v. Mansfield, 3 Drew. 193. 151. On the 15th July, A., owner of an unfinished ship, mortgaged it to B. On the 5th August, A. registered, on the 6th B. registered. Held, that A.'s assignees could not maintain trover for the Ship. Bell v. The Bank of London, 3 H. & N. 730; 28 L. J. Exch. 116. 152. Although the M. S. Act, 1854, contains no provision negativing the validity. of a mortgage made otherwise than according to the terms of the act, the whole scope of the act is to that effect, and an equitable mortgage is still invalid. Liverpool Borough Bank v. Tur- ner, 1 Johns. & H. 159; 1 Asp. 21 ; 29 L. J. Oh. 287 ; 7 Jur. N.S. 150 ; 2 Do G. P. & J. 502; 3 L. T. N.S. 84; 6 Jur. N.S. 84 ; 29 L. T. 827. 153. See also No. 94, p. 1138. 2. Other Liens. _ 154. Held, that the equity of redemp- tion in a vessel mortgaged under the 8 & 9 Viet. c. 89 (since repealed), was not saleable, and therefore, where the mort- gagee was in possession before the seizure of the vessel by the sheriff at the suit of a creditor, that the verdict in an inter- pleader issue had been rightly entered £? * m ° rt g a S ee against the creditor. Wood v. Heed, 40 Legal Observer, C. B. 155. A., owner of forty-eight shares in a ship, gave a power of attorney to B. the other part owner, empowering him to sell A's Bha f 8 ^ Th r ^ ^edu^dex tne command of B A. afterwards mortgaged hisshares in the ship wieil at sea f g t ^ plaintiffs, who had no notice of the po^r of attorney, and the mortgage J, * tered on the register. SulseVSy B sold the ship abroad to C„ who had™ notice of the mortgage by A. The shir/ was registered de novo abroad, and airivM in London. The plaintiffs took possession MORTGAGE. 10. Liability. 1145 of the ship. The defendants afterwards also took possession. Held, that the plaintiffs (the mortgagees) had the better title to A.'s shares. Cato v. Irving, 16 Jur. 161 ; 18 L. T. 345; 5 De G. & Sm. 210; 21 L.J. Oh. 675. 156. A. was owner of seven-eighths of a ship, and B. was owner of the other one-eighth. A. mortgaged his share. A. an 4 •?• . sen * out *^ e sfl ip f° r a cargo at their joint risk in the same proportions as they had in the ship. The ship brought home a cargo, and then the mortgagee took possession and claimed to be entitled to seven-eighths of the cargo, without making any deduction for the expenses of the outfit and voyage. A. had assigned all his property to a trustee for the benefit of his creditors. Held (affirming a decree of the Master of the Bolls), that the expenses of the voyage were to be paid out of the proceeds of the cargo before any division took place, and that B., the joint owner, was entitled to one-eighth of the residue of the proceeds, the remaining seven-eighths of the resi- due being payable to the trustee of A., to whom he had assigned his property, there being no contract between A. and his mortgagee respecting the cargo. Alexander v. Simms, 18 Beav. 80 ; 23 L. J. Ch. 721. 157. An instrument under seal executed by the master (who was also owner) for the repayment of money borrowed for re- pairing the vessel, and thereby stipulat- ing that the vessel should be and remain a security by way of bottomry for the re- payment thereof, and that as well his executors, _&c, as the said vessel, should be bound in the penal sum of so much, operates as a mortgage of the vessel, so that the party takes possession, after which his right is not defeasible by a subsequent execution at the suit of an- other creditor. Ladbroke v. Crichett, 2 T. E. 649. _ 158. Assignee of freight for a par- ticular voyage, held entitled to preference over the mortgagee of ship and freight generally, who had not taken possession. Brown v. Tanner, 2 Asp. 381 ; L. E. 2 Eq. 806. 159. Mortgagees having commenced an action against a vessel, material men with a possessory lien intervened, and the ves- sel was sold. The claim of the material men exceeded the amount of the proceeds. Held, that the mortgagees were entitled to their costs up to date of sale out of such proceeds. The Sherbro, 5 Asp. 88. 160. See also, as to the priority of mort- gages over other liens, tit. Liens, p. 822 et seq. 10. Liability.* 161. A mortgagee shall not by reason of his mortgage be deemed to be the owner of a ship or any share therein, nor shall the mortgagor be deemed to have ceased to be owner of such mortgaged ship or share, except in so far as may be necessary for making such ship or share available as a security for the mortgage debt. See the Merchant Shipping Act, 1854 (c. 104), s. 70. See also No. 97. 162. The Act 6 Geo. 4, c. 110, s. 45 (providing that no mortgagee should be deemed owner, &c, substantially re- enacted by the Merchant Shipping Act, 1854, s. 70) was intended for the protec- tion of the mortgagee, and not in restric- tion of his rights. Dean v. McGlire, 4 Bing. 45, cited with approval in Euro- pean, Sfc. Co. v. Royal Mail, Sfc. Co., 4 K. & J. 685 ; 5 Jur. N.S. 310. See also The Fruit Preserver, 2 Hagg. 182. * (16) In the case of a transfer by way of mortgage under the law (8 & 9 Vict. c. 89, since repealed), prior to the M. S. Act, 1854, the collector and comptroller were required to state on the entry in the book of registry, and also on the certificate of registry, that such transfer was made only as a security for the payment of debts, or by way of mort- gage, and in that case the mortgagee would not be deemed the owner (s. 45), nor would his rights be affected by any act of bank- ruptcy on the part of the mortgagor (s. 46). £17) A mortgagee who is in possession of a ship, and holds himself out as absolute owner, is liable for repairs. Tucker v. Buffington, 15 Mass. 477 ; Miles v. Spinola, 6 Hill. 218 ; 4 Hill- 177. [American.] (18) Aliter, if he is out of possession. M'IntyreY. Scott, 8 Johns. 159; Phillips v. Zedley, 1 Wash. O. C. 226. [American.] (19) Unless the repairs were made on his credit or by special contract with him. Ring V. Franklin, 2 Hall, 1 ; Birkbeck v. Tucker, ibid. 121 ; Tucker v. Buffington, 15 Mass. 477 ; Star v. Knox, 2 Conn. 215. [Ameri- can.] (20) A mortgagee of a ship in possession is liable to the master for his wages, if the voyage be performed for the benefit of the mortgagee. Champlin v. Butler, 18 Johns. 169. [American.] (21) See also, as to the liability of mort- gagees, 3 Kent's Commentaries, 134—136. 4e 1146 MORTGAGE. 10. Liability, 163. The 8 & 9 Vict. c. 89, s. 45 (now repealed, but -which contained provisions similar to those of the 70th section of the M. S. Act, 1854), does not apply to the case of a mortgagee in possession. Woods v. Read, 15 L. T. 90. 1 64. When the transfer is not expressed to he by way of mortgage, the protection which the Ship Eegistry Act intended to afford the mortgagee against the creditors of a bankrupt shipowner is not obtained, and the vendee, appearing on the registry to be owner, may be subject to all the liabilities which belong to him in that character. Langton v. Horlon, 5 Beav. 19. 165. Semble, the owner of a vessel abroad may lawfully hypothecate, or authorize the hypothecation of his vessel, for charges relating to the outward cargo ; and if he do so before bankruptcy, and before the mortgagees of the ship have taken possession, the assignees and mort- gagees would be bound. The Edmond, 1 Lushington, .58 ; 2 L. T. N.S. 195 ; 29 L. J. Adm. 76. See further as to bot- tomry, tit. Bottomry, p. 100. 166. In a cause of necessaries the trans- feree of a mortgage, though in possession of a ship when the necessaries are sup- plied, is not liable for them unless the master in ordering them was acting as his agent. The Troubadour, 2 Asp. 475. 167. A subsequent mortgagee" is liable for repairs previously done to the mort- gaged vessel. The institution of a suit as a cause of necessaries does not estop the plaintiff from pleading and proving subsequently that his claim is in respect of repairs; but the title of the cause must be amended. The Skipwith, 2 Asp. 20. 168. A mortgagee of four sixty-fourth shares of a vessel condemned in the costs, but not damages occasioned by a wrong- ful arrest of the vessel. The Egerateia, 38 L. J. Adm. 40 ; 3 Asp. 241. 169. Funds were advanced by the pur- suers in a foreign port to the attorney and agent of mortgagees in possession, to be disbursed for the service of the vessel. Tn an action against the mortgagees for the advances and disbursements, held, that they were liable to the pursuers for. the funds so supplied, although it was not proved that the whole advances had been actually applied for the servioe of the vessel. Havilland vi Thoriiion", 3rd Series; vol. 3, p. 313. [Scotch:] . no.,Semble, mortgagees are constituted mortgagees inppssession>and as such are liable as owners, if the voyage was for their behoof, and if they selected and ap- pointed the master. Ibid. 171. Mortgagees of a ship are not, as owners, liable for her repairs. The re- ceipt of money, the proceeds of the sale of shares in a ship by mortgagees, does not deprive them of their character of mortgagees. Harries v. Handy and others, 3 Ir. Jur. Exch. 290. 172. A mere mortgagee of a ship, who does not take possession, is not liable for supplies for the use of the ship previous to a re-transfer. Twentyman v. Hart, 1 Stark. 366 ; Irving v Richardson, 2 B. & Ad. 193 ; 1 M. & Rob. 153 ; Chinnery v. Blackburne, 1 H. Bl. 117, n. Nor for wages and disbursements of the master. Jackson v. Vernon, ibid. 114; Annett v. Carstairs, 3 Camp. 354. 173. Unless a contract, express or im- plied, can be proved against him. See Castle v. Duke, 5 0. & P. 359 ; Baker v. Buckle, 7 Moore, 349. 174. Until a mortgagee takes posses- sion he is protected from all the statutory consequences of being on the register ; but when he does take possession and make use of the vessel for the purpose of rendering his security available, he is an owner within the meaning of the statute, and becomes subject to the liability at- tached to that character. De Matios v. Gibson, 1 Johns. & H. 84; 3 L. T. N.S. 121; 30 L. J. Ch. 145; 7 Jur. N.S. 282. 175. The mortgagee of a ship held liable for furnishings in a home port made on the authority of the master or owner, the mortgagee having taken the possession and management of the vessel. Russell v. Baird, 1 D. 931. [Scotch.] 176. B. accepted two bills of exchange, drawn upon him by A., and the. latter executed in favour of the former a bill of sale of a ship, it being agreed between the parties that if A. neglected to provide for the bills when due, B. should be at liberty to indemnify himself by sale of the vessel. The bills were not paid by A, but by B.; who thereupon took upon himself the management of the vessel by directing the master as to subsequent freight, voyages, &c. Held, that from the time when B. took upon him such direction he was owner, and not mort- gagee. -Ex parte Howden, 2 Mont D a- v It 7 -! See-farther as r tb the effect' on the liability of the mortgagee. of his taking possession pf, the ship, caps. 5 and 6 -mf 1139—1141. ■' ' . . " uo ;Pp. MORTGAGE. 15. French Law. 1147 178. As to the mortgagee's liability for user of ship, see cap. 6, p. 1140. 11. Right to Freight. 179. The first registered mortgagee of a ship, by taking possession of her before the freight is completely earned, obtains a legal_ right to receive the freight, and to retain thereout not only what is due on his first mortgage, but also the amount of any subsequent mortgage which he may have acquired on the freight in priority to every equitable charge of which he had no notice-; and it makes no dif- ference that a subsequent incumbrancer was the first to give notice to the char- terers of his charge on the freight. Liver- pool Marine Credit Co. v. Wilson, 7 Oh. 507 ; 41 L. J. Ch. 798 • 26 L. T. 717 ; 20 W. E. 665. 180. The mortgage of a ship carries with it the right to receive the freight earned by the ship ; and although the mortgagee cannot recover back from the mortgagor freight which he has allowed the mortgagor to receive, he may at any time intercept the freight by giving notice to the mortgagor, consignee or charterer that he intends to exercise his right of property and to require the freight to be paid to him. Wilson v. Wilson, L. E. 14 Eq. 32 ; 41 L. J. Oh. 423 ; 26 L. T. 348 ; 20 "W. E. 436. 181. A mortgagee of a ship does not, ordinarily speaking, obtain by the mort- gage alone, a transfer by way of contract or assignment of the right to freight. The mortgagor remains' the dominies of the ship with regard to everything re- lating to its employment or non-employ- ment, or to any rate of freight to , be earned by its employment, until the mort- gagee takes possession. The mortgagee, on taking possession, becomes the owner, and it is by virtue of that ownership and not by virtue of any antecedent contract or right that he is entitled to receive the freight, which by contract or otherwise is lawfully payable. Keith v. Burrows, 9 App. Cas. 636 ; 46 L. J. C. P. 801 ; 37 L. T. 291 ; 25 "W. E. 831. 182. "Where an entire ship is in mort- gage, in order to defeat the right of the mortgagor to receive the freight, the mortgagee must take possession of her before the completion of the voyage ; but where the mortgagor of certain shares is ship's , husband, if the mortgagee join with the owners of the other shares in the ship in the appointment of a new ship's husband before the completion of the voyage, the mortgagor loses all right as ship's husband to receive the freight. Beynon v. Godden, O. A. 3 Ex. D. 263 ; 39 L.T,82; 26 W. E. 672. 183. The plaintiff, or first mortgagee of a British ship and her freight under a mortgage executed in England, com- menced an action against the owners and second mortgagees, claiming an account. Finding that the freight was in the hands of a firm of foreign merchants, who claimed to retain it on account of a debt due from the second mortgagee, the plain- tiff obtained leave to join the foreign merchants as defendants, on the ground that the plaintiff's claim was based upon an English contract. McStephensv. Car- negie, 4 Asp. 215. See further as to the right to freight, tit. Goods, Carriage of — , Pt. VII. p. 467. 12. Mortgagors and Mortgagees as Parties to Actions. See tit. Practice. 13. Accounts. See tit. Eegtstrar and Merchants. 14. Assignment by Mortgage of Freight. See tit. Goods, Carriage oe — , Pt. VIII. c. 2, and c. 3, s. 2, pp. 597 — 601 ; and ibid. No. 162, p. 486. 15. French Law.* * (22) By a law of 10th Dec. 1874, French ships are made subject to mortgage (hypo- theque), it adds a fresh paragraph to Art. 191, and amends Art. 233 of the Code of Commerce. See also as to mortgage by French law, tit. Bottomry, notes 169, 238, 248, 282, pp. 151—159. ,; (23) The French courts will adjudicate upon a mortgage of a foreign ship made in- con- formity with the law of the ship's flag. BarbaresSos v. Nicholatdes & Co., Cas. Cir. 25th Nov. 1879; Grenoble, 11th May, 1881; Journ. de Droit Inter. Prive, 1880, p. 580 ; ibid. 1881, p. 428. (24) The Freflch'courts will not recognize an unregistered sale (or semble, mortgage) of a ship, or shares in a ship, as against creditors of the apparent owner. L. L. 1878, II. 101. 4e2 ( 1148 ) NECESSARIES, REPAIRS AND SUPPLIES. 1. Generally P-H*8 2. As affecting Cargo .-.1151 3. Jurisdiction. 1. Of the Admiralty Branch of the Pro* bate, Divorce and Admiralty Division of the Sigh Court of Justice 1152 2. Of the Sigh Court of Admiralty before the Judicature Acts. (a) Generally .... 1152 (b) As to Necessaries. (aa) Under 3 # 4 Vict. e. 65 . . 1154 (bb) Under the Admiralty Court Act, 1861 1155 3. Of County Courts having Admiralty Jurisdiction 1156 4. Of the City of London Court 1156 3. Jurisdiction — continued. 5. Of the Liverpool Court of Passage.. p.1156 6. Of Vice-Admiralty Courts H5 6 4. Necessaries. 1. Generally 1156 2. Meaning of the Term. (a) Generally l \°? (b) Money 1161 3. Claims by Agents H 63 4. Claims by Part Owners 1165 5. Lien. 1. Generally ■ H 6 " 2. Transfer H 68 3. Discharge I' 69 4. Priority 1170 1. Generally.* 1. Those are commonly called material men whose trade it is to build, repair, or equip ships, or to furnish them with tackle and provision necessary in any kind. The Neptune, 3 Hagg. 142. 2. By the law of England the master of a ship has no power to hind the ship or owner, except within special limits for repairs and supplies becoming necessary from the exigencies of the voyage.f This is an essential principle of bottomry. The * (1) As to the personal responsibility of owners, charterers and mortgagees, for re- pairs and supplies ordered by the master, see Abb. Sb. 12th ed. p. 20 et seq.; Maclacblan on Merchant Shipping, 3rd ed. p. 105 ; Maude and Pollock on ditto, 4th ed. pp. 55 — 63; and the Mercantile Law Amendment Act, 1856 (c. 97), s.'8. t (2) The decisions of the United States courts fully support this view, and even go further, for it has been held in more than one case that the person who supplies goods or money cannot recover against the shin, and consequently not against the owners, if it appears that the master had no necessity to pledge the ship's credit by reason of his having funds in hand to supply the ship's wants ; there is a duty on the material man to make inquiries as to the master's authority before making advances. Thomas v. Osborn, 19 Wallace, U. S. Sup. Gt. Rep. 22 ; Pratt v. Bead, ibid. 359 ; The Eledona, 2 Benedict, If. S. Dist. Ct. 2nd Dist. Rep. 31 ; Gager v. Bdbcock, 48 N. T. Eep. 154. [American.] - (3) The general rule of law to be deduced from the various American cases seems to be that even in a foreign port a master cannot pledge his owner's credit if the owner him- self, or bis agent, be present. See Parsons on Shipping, vol. 2, pp. 8, 9, 10 and 17, and. the cases there cited. (4) The general rule never seems to have been really disputed. Several cases have been decided which have been distinguished on the ground that the owner has ratified the master's authority. See Provost v. Pat- chin, 9 N. T. Bep. 235, and the cases there cited. (5) The master of a ship has authority, in a foreign port, to procure all supplies and repairs reasonably fit and proper for the Safety of the ship and the due performance of the voyage. The Ship Fortitude, 3 Sumner, 228. [American.] (6) Material men have a lien for repairs to a ship in a foreign port, whenever those re- pairs are apparently reasonable and proper, although not absolutely necessary. Ibid. (7) All that is required on their part is good faith, and reasonable ground for action. Ibid. (8) A master acting with reasonable dili- gence, discretion and skill, upon the advice of competent persons at a foreign port, in making repairs, will be protected!, even though a more judicious course might pos- sibly have been adopted in the judgment of other more skilful persons. Ibid (9) The plaintiffs should exhibit an account of the items of expenses for repairs, supplies &c, that the court may judge whether thev were necessary for effectuating the objects of the voyage. The Bridgewater, Olcott, Adm 35. [American.] NECESSARIES, REPAIRS AND SUPPLIES. 1149 Boddihgtons, 2 Hagg. 425. See also tit. Bottomry, cap. 6 ; and as to the master's authority generally to contract for his owners, tit. Masters, c. 5, p. 1120, and tit. Owners, Pt. II. 3. In law both the owner and the (10) The authority of the master to procure supplies and repairs to his ship when in a foreign port is not confined to such supplies and repairs as are absolutely or indispensably necessary, but includes all such as are rea- sonably fit and proper for the ship and the voyage. The Ship Fortitude, 3 Sumner, 228. [AMERICAN.] (11) A master may charge the owner for the necessary supplies for the usual employ- ment of the vessel, but not for superfluities or luxuries. Pratt v. Tunno, 2 Brevard, 449. [American.] (12) Prima facie the supplies of material men to a foreign ship are to be deemed to be furnished on the credit of the ship and the owners. The Brig Nestor, 1 Sumner, 75. [American.] . (13) Workmen and material men having a lien on a vessel may enforce it before the vessel is finished or sold. Davies v. A New Brig, Gilpin, 473 ; Harper v. The New Brig, ibid. 536; Read v. The Hull of a New Brig, 1 Story, 244. [American.] (14) A suit against the owners of a ship for supplies furnished to the master in a foreign port cannot be maintained without proof that the supplies were necessary. Whitten v. Tisdale, 43 Maine, 451. [American.] (15) The owner of a vessel is liable for necessary supplies furnished by order of the master, and if he seeks to escape such lia- bility he must show by satisfactory proof that the credit was given to others ; he may show that credit was given to the master alone for such supplies, or that there was a special promise taken from him and relied on, and thus exempt himself from liability. Abbott v. Baltimore and Rappahannock Steam Packet Co., 1 Maryland Oh. Decis. 552. [American.] (16) A painter was in the habit of paint- ing the ships built by a builder, and kept a general account against him. Held, that he trusted the builder, and had no lien for the painting of one particular vessel. Scott v. Propeller Plymouth, 6 McLean, 463. [Ameri- can.] (17)_ Work done upon a vessel in the dry dock, in scraping her bottom preparatory to coppering her, is not of a maritime character, and compensation for such labour cannot be recovered in a Court of Admiralty. Bradley v. Bolles, 1 Abb. Adm. 569. [American.] (18) There is no remedy in a Court of Admiralty, either in rem or in personam, for the breach of an executory contract for per- sonal services to be rendered to a vessel in port, in loading or unloading her cargo. Cox v. Murray, ibid. 340. [American.] (19) Neither costs of advertising a vessel for sea, nor portage, nor commissions for procuring freight, wages of stevedores or lightermen, are liens on the ship, suable in rem. The Joseph Cunard, Olcott, Adm. 120. [American.] (20) A person employed to visit a vessel at anchor from time to time, to see to her safety, ventilate her, try her pumps, and the like, cannot maintain a suit in Admiralty to re- cover his compensation for such services. Qurney v. Crockett, ibid. 490. [American.] (21) But if, in the course of such employ- ment, a necessity arises that such keeper should get the ship under way, and navigate her from one anchorage to another, this is a maritime service for which he may recover in a Court of Admiralty. Ibid. (21a) A person who lends money to be em- ployed in the repairs of a vessel, or*to furnish her with supplies, has the same privilege against the vessel that material men have. He is considered as giving credit both to the ship and to the owners. The ship is hypo- thecated to him for his security, and he may maintain in the Admiralty Court either a libel in rem against the vessel, or a libel in, personam against the owners. See Davis v. Child, Daveis, 71. [American.] (215) Whether this principle be supposed to have been borrowed from the Roman law, or to have had an independent origin in the commercial usages of the middle ages, it appears to be equally unquestionable in one case as in the other. Ibid. (21c) As to claims and proceedings by material men in the American courts, see 2 Parsons on Maritime Law, 548 ; 1 Conk- ling's Adm. Prac. (2nd ed.) 73; Dunlap's Adm. Prac. (2nd ed.) 70; and for forms of libel and answer on such a claim, see ibid. pp. 503—507. [American.] (22) Where the master of a vessel, in a port of a state to which she does not belong, had taken her on shares, agreeing to victual and man her, he was held to have no right, as between himself and his owner, to obtain provisions upon the credit of his owners. Webb v. Pierce, Sprague, 192. [American.] (23) But third persons ignorant of any special agreement had a right to trust to the apparent authority of the master; and if they did so in good faith, the owner would be bound personally for necessary supplies and provisions. Ibid. (24) Provisions and groceries furnished for the use of a steamboat create a lien on the boat under statute 1833, though the boat was let by charterparty, and the articles were furnished the lessee for use on the boat. But some one, if not all of the owners, must be made a party to the proceedings. Oreenlaw v. Potter, 5 Sneed. (Term.) 390. [Ame- rican.] (25) The lien given by statute on ships at- taches from service in the suit, not from the 1150 NECESSARIES, REPAIRS AND SUPPLIES. master may be responsible", not jointly, but separately, to the material man, who may bring his action against either of them. The Alexander, 1 W. Bob. 357. 4. "When goods are furnished for the use and benefit of a foreign ship the pre- sumption is that the ship is liable, and to rebut this presumption it must be dis- tinctly proved that credit was given to the individual only. The Perla, Swabey, 354 ; 4 Jur. N.S. 742. 5. Where no special contract as to the article purchased is proved, the purchaser takes at his own risk. The Flecha, 1 Spinks' Eccl. & Adm. Bep. 444. 6. The master of a Belgian passenger vessel employed an engineer in London to supply his vessel with a new screw pro- peller, which did not produce the in- creased speed in the vessel, nor the de- creased consumption of fuel represented by the plaintiff. Held, that in the ab- sence <5f a special contract the ship was liable. Ibid. 7. It is contrary to all principle that a master could legally execute a bottomry bond on one vessel for debts arising from supplies and necessaries furnished to other ships. The Osmanli, 3 W. Bob. 212. . 8. A ship cannot be made liable to arrest for a general balance of account by merely appropriating the receipts and payments in such a manner as to show a balance for which the ship would be liable. The West Friesland, Swabey, 454; S. 0. on appeal, ibid. 456 ; 13 Moore, P. 0. C. 186 ; 5 Jur. N.S. 658 ; 8 W. B. 423; 2 L. T. N.S. 613; and see, as to the appropriation of payments, Devaynes v. Noble ( Clayton's case), Tudor's Leading Cases in Maritime Law, p. 1. 9. In the case of a sale of a ship abroad by the master, held, that the purchasers, if they had acquired no legal title by the purchase, had no claim or lien in respect of the moneys laid out by them in the repairs. Bidgway v. Roberts, 4 Hare, 106. 10. When a ship is arrested for a spe- cific demand, the amount cannot be re- ferred to the registrar, unless it appears that something in any event is due. The West Friesland, 5 Jur. N.S. 658 ; Swa- bey, 454; S. 0. on appeal, ibid. 456; 13 Moore, P. 0. 0. 186 ; 8 W. B. 423 ; 2 L. T.N.S. 613. 11. A claim for advances pronounced against with costs upon the ground that the demand was fictitious and fraudulent, and the result of a conspiracy between the master and the party pretending to have made the advances. The Helena Sophia, 3 W. Bob. 277 ; 7 Notes of Oases, 492. 12. A shipwright is not entitled to be paid for the use of his dock' while he de- tains a ship under a Hen against the will of the owner. Somes v. British Empire Shipping Company, 31 L. T. 196; 4 Jur. N,S. 893 ; 27 L, J. Q. B. 397 ; El. Bl. & El. 353 ; affirmed by House of Lords, 6 Jur. N.S. 761; 8 W. B. 707; 30 L. J. Q. B. 229. 13.' The Act of 7 Geo. 1, c. 21, s. 2, making void all contracts with reference to ships in the service of foreigners trading to the East Indies after being re- pealed by implication Csee The India, 33 L. J. Adm. 193; 2 Asp. 193; 12 L. T. N.S.) was expressly repealed by the Stat. Law Eev. Act, 1867, c. 59. 14. In relation to the rights and reme- dies of persons having claims for repairs done, or supplies furnished to or for ships, every port within the United King- dom of Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, ALder- ney and Sark, and the islands adjacent to any of them, being part of the domi- nions of her Majesty, shall be deemed a home port. See the Mercantile Law Amendment Act, 1856 (c. 97), s. 8. 14a. The 8th sect, of the Mercantile Law Amendment Act, 1856, is to be construed as a remedial enactment, in- tended to enlarge and not restrict the rights and remedies therein referred to. The Isabella, 2 Asp. 416. [Ie;sh.] 15. A mortgagee in possession is not time when the debt was incurred. Fisher v. White, 8 Cal. 418. [American.] (26) A party claiming a lien on a vessel for the value of materials furnished by him towards the building of the vessel, on the request of the person building the vessel, must prove that the materials were actually incorporated into the vessel. The mere fact that the materials were ordered and actually delivered at the yard where the vessel was building is not enough to cause the lien to attach. Hiscox v. Harleck, 2 Bosw fN" V \ 506. [American.] ^ •' (27) The Admiralty has jurisdiction to en- force against the ship the hen of a shipwright having the ship still in his custody. Dunlan's American Admiralty Practice (2nd ed.), 70 (28) The lien of material men attache's also to the freight as. well as the ship. Brink- water v. The Freight and Cargo of the Snartnn Ware, 149. [American]. p wn ' NECESSARIES, REPAIRS AND SUPPLIES. 1151 liable for necessaries supplied to the ship unless the master in ordering the- neces- saries is acting as the agent of such mortgagee. An allegation that the de- fendant was in possession of the vessel at the date of the supplies, and was per- sonally liable for them, is not a good reply to an answer of the defendant claiming to be a mortgagee prior to the date of the supply. The Troubadour, L. E. 1 A. & E. 302 ; 2 Asp. 475. See also tit. Mortgage, pp. 1145, 1146. 16. Bill for payment of necessaries, drawn by the master while abroad upon the owner, and dishonoured. Subsequent sale by the owner. Semble, the vessel cannot be arrested in respect of the claim for necessaries. Castrique v. Imrie, 8 0. B. N.S. 1. 17. A ship, after an absence of four years and a-half engaged in the transport service, arrived at the port of P., where she received orders from the Transport Board to proceed to D., upon which the master borrowed money to pay seamen's wages (P. being a port of discharge), and to pay for articles supplied for the ship's use there. In an action against the owner for the money so advanced, the plaintiff was nonsuited, but, finally, the Court of Exchequer set aside the nonsuit, and ordered a verdict to be entered for the plaintiff, but for such sum as should, on a reference, be found due for the seamen's wages, it appearing that the seamen re- fused to proceed on the further voyage without being paid their wages to P. Robinson v. Lyall, 7 Price, 592. 18. A claim by a person having paid wages to the ship's crew at the request of the master on account of the ship, is in the nature of a wages claim, and en- titled to the same priority. The William F. Safford, 2 L. T. N.S. 301 ; 29 L. J. Adm. 110; 1 Lushington, 69. 19. The registered owner of a ship handed her over to his sons to enable them to get a living, he retaining the bare ownership, but not receiving any of the earnings nor interfering with the management. Held, that he- was not liable for repairs to the ship not ordered by him. Fuller v. Grand, Mitch. Mar. Eeg. April 1, 1865. 20.- An advance of freight to enable a master to pay his ship's disbursements, does not give the charterer a claim against the ship, which will take precedence of "a claim of a mortgagee ; nor does an ad- vance for a similar purpose made by an insurance company. The Turlianis, 32 L. T.Adm. 841. 21. In his accounts against the mort- gagee, the master is entitled to security for the amount for which he is personally liable in respect of necessaries. The Limerick, 1 P. D. 292, 411. 21a. But held, by the Court of Appeal, that the master was not entitled to have re- tained in court the amount of the penalty under a bond which he had given for payment of damages arising from a col- lision by his default, although by giving such bond he had obtained the release of the vessel. Ibid. 2. As affecting Cargo.* 22. If the master of a ship orders re- pairs for such ship, or borrows money on a bottomry bond in order to execute the repairs, he is the agent alone of the owner of the ship and not of the owners of cargo, in ordering such repairs and borrowing money. Benson v. Duncan, 14 Jur. 218. 23. A ship being in need of repairs, part of the cargo was sold, and three bot- tomry bonds were granted by the master. Held, that a claim made by the consig- nees of that part of the cargo which was sold to be repaid out of the funds in court could not be sustained. The Con- stancia, 10 Jur. 845 ; 4 Notes of Cases, 677. 24. Cargo was sold at I. to pay the expense of repairs there to a foreign ship bound from L. to S. On the vessel's re- turn to L., the shippers arrested her. Held, that they were not entitled to do so, nor to be considered in the light of mate- rial men, but must seek their remedy from the foreign shipowner abroad. The Bravo, June 27th, 1853. ' 25. As to the right of the owners of cargo sold to deduct such amounts from the freight in their hands, see tit. Goods, Carriage of — , p. 588. * (29) If the owner of the cargo is on board of a vessel at the time of a disaster requiring that money shall be obtained by the master to enable the vessel to prosecute the voyage, he is bound to advance funds ; and if he does so, he is entitled to satisfactory security, and an extra and adequate com- pensation for the advance. Rosa v. The Ship Active, 2 Wash. C. C. 226. [American.] 1152 NECESSARIES, REPAIRS AND SUPPLIES. 3. Jurisdiction.* 1. Of the Admiralty Branch of the Pro- bate, Divorce and Admiralty Division of the High Court of Justice. 26. For provisions transferring to the Admiralty branch of the Probate, Divorce and Admiralty Division of the High Court of Justice the jurisdiction of the High * (30) The Court of Admiralty had, as will be seen from this chapter, no jurisdiction since the time of Charles II. in regard to ne- cessaries, repairs or supplies, until the pass- ing of 3 & 4 Vict. c. 65, which gave it juris- diction over foreign ships only, and in respect of necessaries only, and those furnished only on the high seas or in British ports. This jurisdiction was subsequently extended under the Admiralty Court Act, 1861, s. 5,- to any British ship elsewhere than in the port to which she belonged when no part owner was domiciled in England or "Wales. By the 4th section of this last act, however, jurisdiction was given to the court over other matters than necessaries, i. e., over any claim for the build- ing, equipping, or repairing of any ship, which, or the proceeds of which, were under arrest of the court at the time the action was brought, so that this last kind of action ex- tended to all claims for repairs or supplies to ships, but Could only be brought when the court already had the ship under arrest or had sold the ship and was holding the pro- ceeds. Vide supra, Nos. 27, 39, 50, and 58. The Admiralty Division now has the same jurisdiction as the Court of Admiralty bad as above. t (31) Before the Admiralty Court Act, 1861 (c. 10), material men had not, according to the common law of England, which was binding on the Admiralty Court, any ben upon an English ship in specie in respect of such repairs or supplies, though in most of the continental countries governed by the civil law such a ben was recognized. The Neptune, 3 Hagg. 136, 139 ; The Vrow Mina, 1 Dodson, 235 ; The*Alexander, ibid. 280 ; The Zodiac, 1 Hagg. 325 ; The Vibilia, 1 W. Bob. 6. (31«) In England the same law was for a long time recognized in its maritime courts, until after a long contest it was finally over- . thrown by the courts of common law and the House of Lords in the reign of Charles H. See 1 Eol. Abr. 533 ; Cro. Oar. 296, 1 Hagg. 320, 325 ; The Pacific, 2 Asp. 22, and cap. 5, p. 1166, Nos. 189 and 190. The practice, however, of the Court of Admiralty, of pay- ing material men out of proceeds of sale of a ship continued until the decision of the Judicial Committee of the Privy Council affirmed such a practice to be illegal. See The Neptune, 3 Knapp, P. 0. Eep. 94, and The New Eagle, 10 Jur. 623; 4 Notes of Cases, 426; overruling ibid. 3 Hagg. 129 ; The John, 3 C. Eob. 288; and TheMaitland, 2 Hagg. 254. Court of Admiralty, see tit. Jurisdiction,. p. 638. 2. Of the High Court of Admiralty before the Judicature Acts.\ (a) Generally. 27. The High Court of Admiralty shall have jurisdiction over any claim for the (32) As to the jurisdiction of the Irish Court of Admiralty under this head, see tit. Jurisdiction, Pt. I. c. 24, p. 684. (33) Qui in navem extruendam vel in- struendam credidit vel etiam emeudam pri- vilegium habet. Dig. Hb. 42, 5, 26. Quod quis navis fabricandse vel emendse vel armandse vel instruendse causa, vel quoquo modo crediderit vel ob navem venditam petat, habet privilegium post fiscum. Dig. Kb. 42, 5, 34. (34) The material man who suppHes a foreign ship with necessaries has, by the general maritime law, on the specific ship a Hen, which may be enforced in Admiralty by a proceeding in rem. The Brig Nestor, 1 Sumner, 73 ; The General Smith, 4 "Wbeaton, 443 ; Gardner v. The Ship New Jersey, 1 Peters, 223 ,- Johnson v. The Schooner McDo- nough, Gilpin, 101 ; Ex parte Lewis, &c, 2 Gall. 483 ; 1 Oonkbng's Adm. Prac. (2nd ed.), p. 302. [American.] (35) He also has the personal security of the owners and master, unless the master takes care by express terms to confine the credit to the ship and owners. Ibid. (36) Every ship is considered foreign when she does not belong to the same state where the repairs or necessaries are furnished. Peyrouxy. Howard, 7 Peters, S. 0. Eep. 351. [American.] _ (37) 'When repairs or necessaries are fur- nished in the port or state to which the ship belongs, no ben on the ship is implied unless it is recognized by the local or municipal law of that state, in which case it may be en- forced in Admiralty. Ibid. (38) Workmen, and material men, and persons building a vessel, or furnishing it with repairs or necessaries, in a port or state to which she belongs, have no implied ben on the vessel, and cannot enforce one by suit in rem in the Admiralty unless such ben be given by a state law. Davis v. Brig, Gilpin 479; Peyroux v. Howard, 7 Pet. 324- The General Smith 4: Wheat. 438 ; Phillips Y . The Scattergood, Gilpin, 1 ; Boon v. The Hmnrt Crabbe, 426 ; Tree v. The Indiana, ilid^' Harper v. A New Brig, Gilpin, 536; The Ca- luto, Daveis, 29 ; Davis v. Child, ibid 71 • Bark Ohusan, 2 Story, 455 ; Perkins v JW 42 Maine, 141. [American.] ' - (39) As to ships of other states as well as foreign ships, a ben exists by maritime law f for materials furnished. Sarchet v. The Sfo nn ffavis, Crabbe, 185; Tree v. The Indiana, NECESSARIES, REPAIRS AND SUPPLIES. 1153 building, equipping, or repairing of any ship if at the time of the institution of the cause the ship, or the proceeds thereof, are under arrest of the court. The Admi- ralty Court Act, 1861 (c. 10), s. 4. 28. 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. Ibid. s. 35., 29. In the interpretation and for the purposes of this act (if not inconsistent with the context or subject) the following terms shall have the respective meanings hereinafter assigned to them ; that is to say, " ship" shall include any description of vessel used in navigation not propelled by oars. Ibid. s. 2. 30. The Court of Admiralty has no jurisdiction under 3 & 4 Vict. c. 65, nor under the Admiralty Court Act, 1861 (c. 10), to entertain a claim for repairs done in a foreign port. The India, 9 Jur. N.S. 418; 2 N. E. 42; 32 L. J. Adm. 185. 31. Sects. 4 and 5 apply only to British ships. Ibid. 32. The Court of Admiralty has no jurisdiction under the 4th section of the Admiralty Court Act, 1861, to adjudicate upon a mate's claim for wages paid by him to the crew, nor for necessary dis- bursements in foreign parts. The Vic- toria, 37 L. J". Adm. 12. 33. An action for necessaries against a Spanish barque in which the claim was for £110, was instituted in the Admiralty Court. On motion by the plaintiffs for leave to proceed, so as to free themselves from liability for costs, on the plea that it was necessary to institute the action in the higher court in order to arrest without delay, the court held that it had no power to grant the application after the suit had been instituted, but intimated that the plaintiffs should make an application to the court at the hearing of the cause for a certificate for costs. The Lloreta, 40 L. J. Adm. 50 ; 20 L. T. 447 ; 1 Asp. N.S. 19. 34. A material man has not by supply- ing necessaries a maritime lien, but only a statutory lien, against the ship. {The Skipwith, 10 L. T. N.S. 43, not followed.) The Pacific, 2 Asp. 21 ; The Two Ellens, L. E. 3 A. & E. 345 ; L. E. 4 P. C. 161 ; and see tit. Liens, p. 826, No. 153. 35. To obtain that lien he must have arrested the ship. The Pacific, supra. 36. In the months of November and December, 1861, and January and Feb- ruary, 1862, the plaintiffs furnished a vessel with necessaries. On the 12th December the defendants became mort- gagees of the vessel, and duly registered the mortgage. On the 4th February, 1862, the plaintiff arrested the vessel in a suit in respect of the necessaries. Held, that the plaintiff's claim in the Admi- ralty Court accrued at the date of the ibid. 479 ; Davis v. A New Brig, Gilpin, 536 ; The Calisto, Daveis, 29 ; Davis v. Child, ibid. 71 ; Bark Chusan, 2 Story, 455; Laner. Brig President, 4 Wash. 0. 0. 453 ; The St. Jago de Cuba, 4 Wheat. 409; North v. Brig Eagle, Bee, 78. [American.] (40) The statute of Maine conferred on mechanics and material men such a lien on domestic vessels as the general Admiralty law had previously allowed to them on foreign vessels. The Young Mechanic, 2 Curtis, C. 0. 404. [American.] (41) The local law of Maine does not give to material men a lien on one vessel for the price of materials furnished for it and another vessel, though both are of the same size and model, hut only in such case for what was used in the vessel proceeded against. The Kiersage, ibid. 421. [American.] (42) The courts of the United States have not jurisdiction in Admiralty to enforce hens for labour and materials furnished in con- structing vessels. People's Ferry Company of Boston v. Beers, 20 How. (XJ. S.) 393. [American.] . (43) A Court of Admiralty has no jurisdic- tion to admit against principals, owners of a vessel, a libel filed by their agent, alleging an expenditure of money by him on or about the vessel, and praying for an account and payment of the money due to him. Mintwin v. Maynard, 17 How. (U. S.) 477. [Ame- rican.] (44) The court has no jurisdiction over a claim for repairs made on a canal boat not built for use, nor used, in tide wate#, though the repairs were made where the tide ebbed and flowed. Boon v. The Hornet, Crabbe, 426. [American.] (45) Although the givingof credit for ma- terials furnished to a foreign vessel may so far discharge the hen as to exclude the material man from bringing a suit in rem to enforce.it, or from his being a privileged creditor, still he is entitled, upon petition, to be paid out of remnants and surplus remain-- ing in the registry. Lane v. Brig President, 4 Wash. C. 0. 453- (American); but see as to proceedings against remnants and surplus proceeds, 2 Parsons on Maritime Law, 548. [American.] (46) The Hen of material men attaches to the freight as well as to the ship. Drink- water v. Freight and Cargo of the Spartan,. Ware, 149. [Amebioan.] 1154 NECESSARIES, REPAIRS AND SUPPLIES. arrest of the vessel, and must therefor he postponed to that of the mortgagee. The Pacific, 2 Asp. 21. 36a. A foreign vessel was in an English port, and the owner, heing temporarily in England and in want of funds for the pur- chase of necessaries, made an agreement with the plaintiffs, hy which, in conside- ration of their advancing him hy cash or acceptance £600 for necessaries supplied to the vessel, he undertook to return the amount with interest and charges, on the vessel's return from her voyage, and authorized the plaintiffs to cover the amount so advanced hy insurance on ship, &c, at owner's cost. The owner subsequently became bankrupt, and his assignees sold the vessel to N. and others. In an action in rem for such necessaries, brought after the sale of the ship, held, by the Court of Appeal, that this agree- ment was not a bottomry bond ; and that the plaintiffs had no lien on the ship for the necessaries so supplied ; for that before 3 & 4 Vict. c. 65, s. 6, English law gave no maritime lien on a foreign ship for necessaries supplied to her, that that section did not give any maritime hen, but only a right to seize the ship on the institution of an action, and there being no lien, and the ship having changed owners since the supply of the neces- saries, the plaintiffs were not entitled to recover against the vessel. The Ella A. Clark, Br. & L. 32, overruled ; The Two Miens, L. E. 4 P. 0. 161, explained; The Heinrich Bjorn, 10 P. D. 44 ; 52 L. T. N.S. 560. 37. The powers of material men to en- force their lien differ under the English and Irish Admiralty Court Acts. Hamil- ton v. Harland, 41 L. T. 741 [IeishQ. The Acacia, 4 Asp. 254. 38. See, as to powers of Commissioners of Admiralty to institute actions as to naval stores, &c, the Admiralty Suits Act, 1868, c. 78. (b) As to Necessaries. (aa) Under 3 $• 4 Vict. c. 65. 39. The High Court of Admiralty has jurisdiction to decide all claims and de- mands whatsoever .... for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county or upon the high seas at the time when the .... necessaries were furnished, in respect of which such claim is made. 3 & 4 Vict. c. 65, s. 6. 40. Before this act foreign _ ships could not be subjected to actions in rem under any circumstances for necessaries supplied. It therefore happened that great inconvenience, and sometimes dan- ger, to ships took place, by the want of anchors, cables, or provisions. It was to remedy those evils that the statute was passed — to remove, on the one hand, the pressure of immediate want, and on the other, to give the British merchant or broker his remedy for such advances. The Comtesse de Fregeville,- 1 Lushington, 332; 4 L. T. N.S. 714; The Ocean, 2 W. Bob. 371 ; The Wataga, Swabey, 166. 41. One of the reasons for the juris- diction conferred on the Court of Admi- ralty as to necessaries by 3 & 4 Vict. c. 65, s. 6, is, that the law of this country might in that respect be assimilated to the gene- ral law of the maritime states of Europe, which gives a hen to persons who furnish necessaries to a vessel in port, or on the high seas. The Flecha, 1 Spinks' Eccl. & Adm. Eep. 441. 42. The 3 & 4 Vict. c. 65, s. 6, is re- medial, and is therefore to be construed liberally. The Alexander, 1 "W. Eob. 296 ; 1 Notes of Cases, 188; The -Wataga, Swabey, 167. 43. The 3 & 4 Vict. e. 65, which re- vives the ancient jurisdiction of the court with regard to necessaries supplied to a foreign ship, was never intended to alter the law, but merely to give a new remedy, rendered necessary in the peculiar oases of foreign ships, and confined to that necessity. The Alexander, 1 W. Eob. 360 ; 6 Jur. 241 ; 1 Notes of Cases, 380. 44. The master of a foreign vessel lying in the port of Q., being without funds or credit, by means of a bill of exchange drawn upon a firm of ship- brokers in L., procured the advance of a sum of money for necessaries for the ship. Th .e hiU of exchange was accepted. and paid, but the acceptors; not having re- ceived the amount of the bill from the shipowners, instituted an action against the ship for the amount of the bill. Held that the court had jurisdiction to enter- tain the ^ action . (The Wataga, Swabey, 165, and The Onm, Lushinsrton 154 followed.) The Anna, 1 P. D 253 ' 45. The3&4Jict c.65 s.6, applies to foreign ships in colonial as -well ks in British ports. The Wataga, Swabev 16fi- 28 L T. 192; 5W.E. 155; TheOnni 1 Lushington, 154 ; The Anna, 1 V T» (0. A.) 258 ; 46 L. J. P. D. & A is . * Asp. N.S. 237. ' * 46. Semite, Simon's Bay is on the high NECESSARIES, REPAIRS AND SUPPLIES. 1155 seas within the meaning of the 3 & 4 Tict. o. 65, s. 6. The Wataga, Swabey, 168. 47. Claimants for necessaries have not the same rights of suit in the Admiralty Court as those possessed of a maritime lien. See The Heinrich Bjorn, supra, No. 36a, overruling The Ella A. Clark, otherwise Golden Age, 8 L. T. N.S. 119 ; and The SMpwith, 10 L. T. N.S. 43. 48. Moneys for necessaries had been advanced partly when the ship was lying in a foreign port, and partly when she was in a port in England. The court ordered payment of both sums out of the proceeds of the ship, the suit being un- defended and the owners not opposing the motion. Semble, otherwise the court would have had considerable difficulty in making the order. The Afina Van Linge, Swabey, 514 ; 1 L. T. N.S. 339. 49. The right to sue under 3 & 4 Vict. o. 65, s. 6, for necessaries supplied to a foreign ship, is not affected by the Admi- ralty Court Act, 1861, s. 5 (semble, as to the jurisdiction of the court). The Ella A. Clark, otherwise The Golden Age, 8 L. T. N.S. 119. As to the relative pri- ority of such claims, see tit. Liens, p. 826, and ibid, in Addenda. 50. The Court of Admiralty has no jurisdiction under 3 & 4 Vict. c. 65, to entertain a claim for necessaries supplied in a foreign port. The India, 9 Jur. N.S. 418; 2N. E. 42. 51. A vessel built and registered at New Brunswick in Nova Scotia, held not to be a foreign vessel within the meaning of 3 & 4 Vict. c. 65, s. 6, and therefore that the Court of Admiralty had no juris- diction under this, act over a claim in re- spect of necessaries supplied to her. The Ocean Queen, 1 W. Hob. 457 ; 1 Notes of Cases, 271. 52. Necessaries were supplied to a foreign ship prior to the passing of 3 & 4 Vict. c. 65. Subsequently proceedings were taken against her under the 6th section of that act. ■ Held, that the court had jurisdiction to entertain the claim. The Alexander, 1 W. Eob. 288 ; 1 Notes of Cases, 188; 5 Jur. 1067. See also tit. Jurisdiction. 53. This act (3 & 4 Vict. c. 65) confers on the court a jurisdiction as to neces- saries supplied to a foreign ship, to be employed in every lawful mode which the court has the power to exercise for en- forcing payment, viz. by proceedings in rem or in personam. Ibid. 54. The jurisdiction conferred on the Court of Admiralty by the 3 & 4 Vict. c_. 65, s. 6, is not affeoted by the fact that the necessaries were furnished on personal credit. Ibid. 55. Money advanced to discharge a debt incurred for necessaries . does not found a claim for necessaries under 3 & 4 Vict. c. 65, s. 6. The N. E. Gosfabrick, Swabey, 345 ; 31 L. T. 345 : 6 W. E. 871; Beldon v. Campbell, 17 L. T. 257; Frost v. Oliver, 1 E. & B. 301 ; 2 L. J. Q. B. 353. 56. A foreign ship having been arrested at the suit of a bondholder, money was advanced to the master to enable him to pay seamen's wages. Held, upon an un- opposed motion, that such money was recoverable against the ship as neces- saries under 3 & 4 Vict. c. 65. The Henry Reed, 32 L. T. 166 ; 7 W. E. Adm. 180. 57. But quaere, if the motion had been opposed. Ibid. (bb) Under the Admiralty Court Act, 1861. 58. The High Court of Admiralty has jurisdiction over any claim for necessa- ries supplied to any ship elsewhere 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 institu- tion of the cause any owner or part ownen of the ship is domiciled in England or Wales. The Admiralty Court Act, 1861 (c. 10), s. 5 ; see The Masonic, 5 L. T. N.S. 460. 59. But if in any such cause the plaintiff do not recover £20, he shall not be entitled to any costs, charges, or expenses incurred by him therein, un- less the judge shall certify that the cause was a fit one to be tried in the said court. Ibid. 60. 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. Ibid. s. 35. 61. Sects. 4 and 5 apply only to British ships. The India, supra, No. 50. 62. In the interpretation, and for the purposes of this act (if not inconsistent with the context or subject) the following terms shall have the respective meanings hereinafter assigned to them ; that is to say, "ship" shall include any. description of vessel used in navigation not propelled by oars. The Admiralty Court Act, 1861 (c. 10), s. 2. 63. In order to oust the jurisdiction of the Court of Admiralty over a claim for necessaries, the objection that the owner of the ship is domiciled in England or "Wales must be taken before judgment 1155 NECESSARIES, REPAIRS AND SUPPLIES. pronounced." Ex parte Michael, L. E. 7 Q, B. 658. 64. "Where it is not so taken prohibi- tion will not he granted. The Admiralty Court Act, 1861 (c. 10), s. 65. 65. In an Admiralty cause, instituted in the Court of Passage to recover a claim for necessaries supplied to a vessel in the Port of ■ Liverpool, the defendants in their answer alleged that at the time the necessaries were supplied the vessel he- longed to the Port of Liverpool, and that at the time of the institution of the suit a part owner of the vessel was domi- ciled in England or Wales. These allega- tions were Objected to hy the plaintiffs as irrelevant, and the assessor of the Court of Passage ordered them to he struck out. On appeal to the Court of Admi- ralty the decision of the assessor was re- versed, on the ground that the County Courts Admiralty Jurisdiction Act, 1868, does not confer upon the Court of Passage a more extensive jurisdiction as to any claim for necessaries, than that exercised hy the Court of Admiralty. The Dowse, L.E. 3 A. &E. 135. 66. The 5th section of the Admiralty Court Act, 1861, applies to British and Colonial ships exclusively. The Ella A. Clark, 9 Jur. N.S. 312 ; 8 L.T. N.S. 119; 1 N. E. 525. 67. jSemble, the words " owner " or '.'part owner," domiciled in England or "Wales (in the Admiralty Court Act, 1861, s. 5), refer to owner at the time when the necessaries were furnished, and not to owner at the time of the institution of the cause. Ibid. 68. The term "domiciled" in the Ad- miralty Court Act, 1861, s. 5, is used in the ordinary legal sense, and if the owner of a ship is only temporarily absent from this country, an action for necessaries cannot be maintained against his ship. ■The Pacific, 10 L. T. N.S. 541 ; 10 Jur. N.S. 111.6; 33L.J.Adm.l20;B. &L.243. 69. The jurisdiction conferred on the High Court of Admiralty by sect. 5 of the Admiralty Court Act, 1861 "over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs," does create a statutory but not a maritime hen. The Two Ellens, L. E. 3 A. & E. 345 ; L. E. 4 P. C. 161 ; The Pacific, 2 Asp. 21 ; The Heinrich Bjorn, supra, No. 36a; and see tit. Liens, p. 826 ; and ibid, in Addenda. 3. Of County Courts having Admiralty Jurisdiction. 70. See tit. Jurisdiction, p. 680. 4. Of the City of London Court. 71. See tit. Jurisdiction, p. 681. 5. Of the Liverpool Court of Passage. 72. See tit. Jurisdiction, p. 681. 6. Of Vice- Admiralty Courts. 73. Sub-sect. 10 of sect. 10 of the Vice- Admiralty Court Act, 1863, 'does not con- fer on Yice-Admiralty Courts any juris- diction to enforce claims for necessaries by way of maritime hen, and Vice- Admiralty Courts have no such jurisdic- tion. The Rio Tinto, 9 App. Cas. 356 ; 53 L. J. P. C. 54 ; 5 Asp. 224. 73a. Material men supplying necessa- ries to a British ship in a possession in which a Vice-Admiralty Court is esta- blished, do not acquire a maritime lien., Ibid. 9 App. Cas. 356 ; 5 Asp. 224. 73fl. See tit. Jurisdiction, p. 688. 4. Necessaries, 1. Generally^ 74. The principle upon which the owner of a ship is made responsible for * (47) The master's power to borrow money for the use of the ship, and make the owner liable, is now grounded on reasonable, and not on absolute, necessity. Edwards v. Havell, C. P. Nov. 4, 1854 ; 2 0. L. E. 1343 ; 2 W. E. 0. P. 12; Abbott on Shipping, 12th ed. p. 103. (48) Meld, .by a majority of the judges, that if a seaman, in consideration of an adt vance note, is supplied with clothes on ac- count and receives the balance in cash, the advance note may be enforced against the shipowner by the person so obtaining it. McKane v. Joynson, C. P. May 22, 1858 ; W. E. 658; and see 0. B. N.S. 218. ■ (49) Advances made at B. by an agent to the master of a vessel owned at S. verdict against shipowner for amount claimed Cresswell, J. in directing the jury, said that, as regarded borrowing money in such a case for the use of the vessel, the onlv question was whether the circumstances were such as to constitute him the agent of £?_ ° wner m ° rder *» Procure the adfances. Williamson v. Page, Northern Circuit Liver pool, Aug. 27, 1844; see 1 Oar. & K 581 " Harrison's Digest, 3381; Shee's Tenterdeni (50) Held, that advances made to a master for necessary repairs of a ship could not he recovered from a party in whose favour a bill of sale had been executed in considera tion of money lent to the shipowner but which bill of sale, although entered in the NECESSARIES, REPAIRS AND SUPPLIES. 115? necessaries furnished to him by order of the master is this, that in the employment of the ship the master is the agent of the owner, and his character and situation furnish a presumption that he has autho- rity from the owner to take all measures that may be necessary for rendering the employment of the vessel efficient and beneficial to his employer. The Alexander, 1 W. Eob. 356; 6 Jur. 241 ; 1 Notes of Cases, 380. 75. The court would not make the pwners of a foreign ship liable for the supply of any articles for which, under similar circumstances, if resident here, they would not be responsible in a court of common law. Ibid. 1 W. Eob. 360 ; The Sophie, ibid. 369. 76. In all cases in which the owners of a ship are sought to be made liable in contract for necessaries supplied on the order of the master, or in tort for the negligence of the crew, the question of lia- bility does not depend on the title to the ship. The real question is, whether the owners who are sought to be charged were the employers of the master who made the contract, or the masters of the persons who were guilty of the negli- gence. Per the majority of the court in Hibbs v. Ross, L. E. .1 Q. B. 534 ; 35 L. J. Q. B. 193 ; 2 Asp. 397 ; 7 B. & S. 655. 77. A further question sometimes arises whether the owners may not have clothed the master with apparent authority so as to be precluded from disputing his autho- rity. Ibid. 78. The liability of an owner to pay for repairs and equipments ordered by the master, depends not upon the ground of ownership but upon the ground of a contract made with the vendor by a per- son who was the owner's agent, for the purpose of ordering such repairs and equipments. No contract of a master can bind the owner, unless such authority has been actually given to him, or unless the owner has by word or deed held out the master as his master, and thereby in- duced the vendor to supply the articles upon the credit of the owner. The Great Eastern, L. E. 2 A. & E. 88 ; 3 Asp. 58. 79. A vessel was chartered by the owners to one D. By the terms of the charter-party the master, officers and crew were to be appointed by the owners (subject to the approval of the charterer), to be under the control of the owners, and to be dismissed by them. An action was brought against the owners for neces- saries supplied to the ship by the master's orders. Held, that the owners were liable, on the ground that they had held out the master to third parties as their agent for the ship. Ibid. 80. In order to constitute a demand against the owners it is necessary that the supplies furnished by the master's orders should be reasonably fit and proper for the occasion. The Alexander, 1 W. Eob. 363 ; 6 Jur. 241 ; 1 Notes of Cases, 380 ; and Abb. Sh., 12th ed. p. 92, therein cited. 81. In a claim for necessaries the onus of proof rests with the material man. The principle of law in casting this onus on him is founded on great and important principles of justice. Ibid. 82. It is not sufficient to aver that the goods supplied were necessary. They must be necessary at the time and under the then existing circumstances, in the sense the law requires. Ibid.; The Sophie, 1 W. Eob. 369 ; 1 Notes of Cases, 393 ; The Helena Sophia, 3 "W. Eob. 270; 7 Notes of Cases, 492. See also Carey v. White, 1 Bro. Par. Cases, 284. 83. The rule is to inquire what a pru- dent owner would do if he were present. Webster v. Seekamp, 4 B. & Aid. 354 ; The Alexander, 1 W. Eob. 361 ; 6 Jur. 241 ; 1 Notes of Cases, 380. 84. In an action against a shipowner for goods supplied and money lent to the master at a foreign port, the onus is on the plaintiff to prove that the goods and money supplied were necessaries. Mack- intosh v. Mitcheson, 4 Exch. 175 ; 18 L. J. Exch. 385 ; Carey v. White, 1 Bro. Par. Cases, 284; Eocher v. Busher, 1 Stark. 27. 85. "Where, on a claim by- material men, it appears that they had agreed to look to the agent of the owners of the ship for payment, they have no claim on the vessel. The Isabella, 2 Asp. 416. 86. In an action for necessaries where registry as an absolute one, was understood to have been granted merely as collateral se- curity for the loan, a memorandum to that effect having been signed. Myers v. Willis, 17 0. B. 85: affirmed 18 0. B. 886. (51) The court must look to see what was the intention of parties when they executed the bill of sale, and it was clearly not in- tended that the defendant -should become absolute owner, that he should have a vessel worth several thousand pounds in considera- tion of £1,000, and take upon himself lia- bility for the acts of the master. Formerly the registration of ownership was conclusive of liability, but it is now settled that con- tracts in such cases must depend upon the ordinary law of principal and agent. Ibid. 1158 NECESSARIES, REPAIRS AND SUPPLIES. the defendants denied liability on the ground that the sum sued for -was in re- spect of matters covered by a contract to repair the vessel, the court, before judgment, directed an inquiry, under Ord. xxxiii., as to what sum, if any, was due. The Sully, 48 L. J. P. D. 56. 87. The defenders, as agents for a Colonial Navigation Company, ordered a vessel in Scotland, and advanced con- siderable sums on her account. The de- fenders appointed the master, with in- structions to take her to New Zealand, and there receive the instructions of the company. The vessel was originally registered in the name of the defenders, but before sailing was transferred to that of S. to secure advances. During the voyage the master, to pay for necessary repairs, granted bills on the defenders. Subsequently the vessel was again trans- ferred into the name of the defenders, and by them sold on their own account. In an action by the holder of the bills against the defenders, held, that the defenders, at the date of the repairs, were employers of the master and responsible for his legal contractions for the ship, and were, therefore, liable for the amount of the bills. Miller v. Potter, Cases in the Court of Session, 4th Series, Yol. 3, p. 105. [Scotch.] 88. The plaintiffs supplied necessaries to a vessel in a foreign port, in igno- rance that agents for the ship were at the port with funds; they had, however, the means of knowing, and the master was aware of it. Held, that they could not recover against the shipowners . Gunn v. Roberts, L. E. 9 0. P. 331 ; 43 L. J. C. P. 233 ; 2 Asp. N.S. 250 ; 30 L. T. 424 ; 22 W. E. 652. 89. A master obtained clothes for his crew from the plaintiff, and gave them an undertaking in his own name for the price. The seamen were paid their wages less the deductions for clothes, and the master, in his account of disbursements, took. credit for the sums against the men's names for the clothes. In an action against the owners for the price of the clothes, plaintiff nonsuited. Curran v. Wood, 2 Asp. 441. ' . SO. In a claim for necessaries, the de- fenders assoilzied, the pursuers having failed to prove that the supplies were necessaries. Drain 8f Co. v. Scott, Cases in the Court of Session, 3rd Series, Vol. 3, p. 114. [Scotch.] 91. A creditor claimed to prove against the estate , of an arranging trader in re- spect of necessaries supplied to a vessel alleged to be the trader's property. Held, that the claim could not be sustained, as at the time when the neeessaries_ were supplied the trader had no beneficial in- terest in the vessel. He Ah arranging Trader, L. E. 1 Eq. 216 ; 2 Asp. 520. [Ieish.] , 92. The master of a ship has authority to bind the owner as to all repairs that are necessary for the purpose of bringing the ship to the port of destination, but in all cases where practicable he must first communicate with the owner. Beldon v. Campbell, 17 L. T. 257 ; 6 Exch. 886. 93. A shipowner is not only liable for necessary repairs done to a ship by the master's order, but for such as are fit and proper for the vessel on her voyage, and such, as a prudent owner, if present him- self, would order. Webster v. Seekamp] 4 B. & A. 352. 94. In an action against the registered owner of a vessel for necessary repairs ordered by the master, it must be proved that the master acted as the owner's master, or with his knowledge. Pearson v. Nell, 2 Asp. 213. 95. "Whether or not the owner is liable in an action for necessary repairs ordered by the master is a question of contract, not of ownership. If the repairs were done on the master's credit alone, the owner is not liable. Ibid. 96. The declaration stated an agree- ment by defendants to repair plaintiff's ship for a reasonable price to be charged by them to plaintiff, and upon comple- tion to re-deliver the ship to the plain- tiff upon payment of such price so to be charged. Averments, that the repairs were completed, and plaintiff was ready and willing to pay defendants such price as aforesaid, whereof defendants had notice. Breach, that defendants did not charge a reasonable price, but demanded an exorbitant sum as the price of the repairs, and gave notice to plaintiff that they would not re-deliver the ship until payment thereof, and detained the ship after she was completed until payment of the exorbitant sum. Plea, no tender of a reasonable price, or of any sum in respect thereof. Eeplication, waiver • of the tender. Held, on demurrer that the declaration was good and the plea bad, for by the terms of the agreement, as stated in the declaration the_ defendants were bound to deliver their bill of reasonable charges, and plaintiff was relieved from the necessity of making a tender. Held, also, that the replication was good, and not a departure NECESSARIES, REPAIRS AND SUPPLIES. 1159 from substance. Watson v. Pearson, 1 Asp. 335. 97. Quart, might it not hare been otherwise in the case of an implied con- tract only? Ibid, 98. The master of a vessel waiting in a river, wind-bound, at a place two days' post from the owner, may borrow money on the credit of the owner, in order to procure provisions necessary for keeping the vessel well found, so as to be able to take advantage of. the first fair wind. Edwards v. Havill, 22 L. T. 87 ; 14 0. B. 107; 17 Jur. 1103. 99. The master ordered provisions for the ship, but sailed without paying for them, though having money from the owners for the purpose. The owners held liable. Speerman v. Degrave Galhoay, 2 Vern. 643. 100. The master has authority to pro- vide necessaries. If, therefore, a per- son trusts him for things not necessaries, he trusts him for that which it is not within the scope of his authority to pro- vide, and has, consequently, no right to call on his principal for payment. Carey v. White, 1 Bro. Pari. Cases, 284. 101. Sailors injured in weighing anchor were taken ashore by the master, who engaged the plaintiff to supply them with board, lodging, and medicines, and then proceeded on his voyage with fresh hands. Held, that such supplies were not neces- sary fpr the due prosecution of the voy- age, and that therefore the owner was not liable. Organ v. Brodie, 10 Exch. 449; 24 L. J. Exch. 70. 2. Meaning of the Term.* (a) Generally. 102. The term " necessaries " is not to receive the same liberal construction as is given to supplies furnished in cases of bottomry. ' The Comtesse de Frkgeville, 4 L. T. N.S. 714; 1 Lushihgton, 332; 1 Asp. 106. 103. The term " necessaries" does not include things required for the voyage as contra-distinguished from necessaries for the ship. Ibid. 104. In this respect there is a distinc- tion between the ship and the voyage, and " necessaries " mean repairs primarily in- dispensable, such as anchors, cables, sails. Provisions also may be included. Ibid. 105. The statute 3 & 4 Yict. c. 65, s. 6, does not apply to ordinary mercan- tile accounts between owner and agent. Ibid. 106. The term "necessaries," where used in the statutes giving the Admiralty Court jurisdiction over such claims, has the same meaning as is given to it by the Common Law Courts, and signifies what- ever the owner of a vessel as a prudent man, if present under circumstances in which his agent in his absence is called upon to act, would have ordered. The Riga, 3 L. E. Adm. 516; 41 L. J. Adm. 39 ; 26 L. T. 202 ; 20 W. E. 927. 107. Premiums paid by a shipbroker at the owner's request to procure insur- ance on freight are necessaries. Ibid. 108. Charges paid by a shipbroker at the owner's request for entering, report- ing, and piloting a ship, and for tonnage and light dues, and for noting protest, are within the term. Ibid. 109. Advances at the owner's request for travelling expenses of the master, and goods supplied for the ship's use, are necessaries. Ibid. 110. Brokerage charges made by a ship's broker for acting as ship's agent, and for negotiating a charter-party, may be necessaries within the meaning of the statutes, but must be proved to come within the definition. Ibid. 111. Premiums for insurance are not necessaries within the meaning of 3 & 4 Vict. c. 65, s. 6. The Heinrich Bjorn, 8 P. D. 151 ; 52 L. J. P. D. 83 ; 5 Asp. 145. 112. The technical meaning of the term * (52) These cases were determined under sect. 6 of S & 4 Yict. c. 65, and not under the 4th section of the Admiralty Court Act, 1861, which relates to the building, equipping or repairing of any ship, and is not limited to necessaries only. (53) The owner is responsible only for necessaries furnished for his ship, and it is for a jury to decide what are necessaries. Burquiny. Flinn,lM.'Goi&, 316. [American.] (54) A barge may be necessary to a steamer, and as such its hire to the boat will be regarded as a material furnished for the equipment of the boat. Gleim y. Steam- boat Belmont, 11 Miss. 112. [American.] (55) Neither costs of advertising a vessel for sea, portage nor commissions for pro- curing freight, wages of stevedores or lightermen, are liens on the ship, suable in rem. The Joseph Cunard, Olcott, Adm. 120. [American.] (56) In supplying coals to a steamer at the order of the master, who was also sole owner, held, that to confer a maritime hen it must be proved that a supply of coals was necessary to the vessel at the time. The Sultana, 19 Howard, 359; The Barque Laura, ibid. 22. [American.] 1160 NECESSARIES, REPAIRS AND SUPPLIES. " necessaries " strictly applies to anchors, cables, rigging, and matters of that de- scription. The Sophie, 1 W. Bob. 368 ; 1 Notes of Cases, 393. 113. The term "necessaries" includes necessary work and labour. Ship ar- rested by stevedore, and claim sustained by Admiraly Court. The Waban, May 24, 1855. 114. It is absolutely necessary, except when the order is given by the owner, to prove not only that the articles supplied were necessaries, but that they were ac- tually wanting for the service of the ship at the time when they were supplied. The Sophie, 1 W. Bob. 369 ; 1 Notes of Cases, 393 ; The Helena Sophia, 3 W. Bob. 270 ; 7 Notes of Cases, 492; Mackintosh v. Mitcheson, 4 Exch. 175; 18 L. T. 385; The Alexander, 1 W. Bob. 361 ; 6 Jur. 241 ; 1 Notes of Cases, 380 ; The Ocean, 2 W. Bob. 368 ; 4 Notes of Cases, 31. 115. The court will not put a restricted meaning on the term necessaries in 3 & 4 Vict. c. 65, s. 6, so as to confine it to things absolutely and unconditionally necessary for a ship in order to put to sea. The Perla, Swabey, 354 ; 4 Jur. N.S. 742. 116. Semble, whatever is necessary in a passenger steamer to put the machinery in perfect working order is a necessary within the meaning of that act. The Flecha, 1 Spinks' Eccl. & Adm.Eep. 441. 117. A new screw propeller for a pas- senger steamer is a necessary within the meaning of that act. Ibid. 118. In one sense an anchor and cable are necessary, for a ship cannot in safety sail without them ; but it does not there- fore follow that at all times, or at any particular time, a new anchor and cable, or several, are necessary for the use of the ship. The Alexander, 1 W. Bob. 361 ; 6 Jur. 241 ; 1 Notes of Cases, 380 ; 1 W. B. 360. 119. It is not sufficient to aver that they were necessaries, they must be neces- sary at the time and under the then existing circumstances. Ibid. 120. In the case of an anchor and cable supplied to a vessel a less degree of evidence might suffice to prove the existence of a necessity than would be required in the case of a loan of money. Ibid. 121. The rule for estimating what are " necessaries " is, to inquire what a pru- dent owner would have ordered if he had been present. Webster v. Seekamp, 4 B. & Aid. 354 ; The Alexander, 1 W. Bob. 346. 122. An anchor and chain cable were supplied to a foreign ship, and she was arrested in an action for necessaries. The plaintiff failed in proving that the anchor and cable were necessary under the cir- cumstances, and it was proved the ship was furnished with proper anchors and cables, and that the articles supplied were never used. Plaintiff held not entitled to recover against the ship. Ibid. 366. 123. Articles supplied for the equip- ment of a vessel building in a foreign port are not necessaries within the mean- ing of the 3 & 4 Vict. c. 69. The Ocean, 2 W. Bob. 368; 4 Notes of Cases, 31. 124. Coals supplied at intervals to a foreign steamer for several voyages held to be necessaries, and the amount due for the same to be recoverable under 3 & 4 Vict. c. 65, s. 6. The Twentje, other- wise The West Friesland, Swabey, 454 ; 5 Jur. N.S. 658 ; ibid, on appeal, Swabey, q 456 ; 8 W. E. 423 ; 13 Moore, P. C. C. 186 ; 2 L. T. N.S. 613 ; The Comtesse de Frigeville, 1 Lushington, 333 ; 4 L. T. N.S. 714; 1 Asp. 106. 125. Butcher's meat is a necessary, within the meaning of 3 & 4 Vict. c. 65, s. 6. The N. R. Gosfabrick, Swabey, 345 ; 31 L. T. 345. 126. A claim for money advanced to a master to pay averages, dismissed with costs, such advances not being " neces- saries" within the meaning of the 6th section of the 3 & 4 Vict. c. 65. The Aaltje Willelmina, L. B. 1 A. & E. 107. 127. Copper sheathing is a necessary. The Perla, Swabey, 353; 4 Jur. N.S. 472. See also Webster v. Seekamp, 4 B. 6 Aid. 352 ; and The Turliani, 2 Asp. N.S. 603. * 128. The guarantee of a party to bring home a medical man who sails in charge of emigrants is binding, and the expense of his return passage will be allowed as a set-off in a suit for materials instituted by him. The Thorny Close, 5 Jur. 251. [Irish.] 129. The expenses of an agent coming to London to assist the master in his de- fence of a damage suit are not necessa- ries. The Bonne Amelie, L. B. 1 A. & E 19 ; 35 L. J. Adm. 115 ; 2 Asp. 32. 130. But the French owners having executed an act of abandonment of the vessel, the court decreed payment of those expenses out of the proceeds of the sale of the vessel. Ibid. NECESSARIES, REPAIRS AND SUPPLIES. 1161 (b) Money.* 131. The meaning of the term "neces- saries" may be enlarged so as to include money expended on necessaries, but in such a case satisfactory proof must be adduced that the necessaries were want- ing, and that the money was bond fide advanced for the purpose of procuring them. The Sophie, 1 W. Eob. 368 ; 1 Notes of Oases, 398; The Masonic, 1 Asp. 169. 132. In an action for necessaries, part of which consisted of money supplied to the master, who was also part owner, proof required that the money was ap- plied in the purchase of necessaries. Ibid. 133. A party advancing money to pro- cure necessaries, held, entitled to the same rights as a claimant in respect of necessaries supplied by him. Ibid. ; see also The Masonic, 5 L. T. N.8. 460 ; The Afina Van Linge, Swabey, 515. 134. Money advanced for purchase of butcher's meat for the crew comes within the description of necessaries. The Bonne Amelie, L. E. 1 A. & B. 19 ; 35 L. J. Adm. 115; 2 Asp. 321. 135. The defendant, master and sole owner, borrowed money to enable him to procure the release of his vessel, which was detained by the shipwright under his possessory lien for certain necessary re- pairs executed upon her. Held, that the amount of the loan could be recovered in a suit for necessaries. The Albert Crosby, L. E. 3 A. & E. 37. 136. Sums of money paid for insurance on freight, for harbour dues, and for travelling expenses of master, held, re- coverable as necessaries. The Riga, L. E. 3 A. & E. 516 ; 41 L. J. Adm. 39 ; 1 Asp. N.S. 246; but as to the insurance see The Heinrich Bjorn, 8 P. D. 151 ; 52 L. J. P. D. 83 ; 5 Asp. 145. 137. A vessel was chartered for a voy- age to two named ports to be consigned to charterer's agents. On arrival at the first port it was arranged between the master and the agents that the vessel should not proceed to the second port, but the cargo should be forwarded in other vessels. The agents disbursed sums for this purpose, and the master drew on the owners in favour of the agents for the sums disbursed. The owners refusing to accept, held, that the agents had no au- thority to allow the deviation; that the master had no authority to allow it, as necessity was not proved ; and that there- fore the owners were not liable for the expenses incurred. Strickland v. Neilson, Cases in the Court of Session, 3rd Series, Vol. 7, 400. [Scotch.] 138. A claim for re-exchange does not lie against a drawee of a bill for refusal to accept. But, qutsre, where a master as agent for the shipowners draws on them in a foreign port for necessary dis- bursements, and the owners refuse to accept, does a claim for re-exchange then lie against them qua drawers ? Ibid. 139. A charterparty made in Great Britain provided that £1,000 should be advanced at Calcutta on account of freight. £800 was advanced at Calcutta by the charterers' agents, to whom the cargo was consigned and delivered, and the master drew a bill for that amount on the charterers in favour of the agents. This bill was indorsed to the pursuers, who, on the nonpayment of the bill, brought an action against the shipowners, alleging that the advance of £800 was a necessary advance to the ship made on the bill, without which it would not have been made. Held, that the advance was not made on the bill, but was made under the terms of the charterparty, and that the shipowners were not liable. North Western Bank v. Bjornstrom, Ibid. Vol. 4, 24. [Scotch.] 140. Qucere, if necessary advances are made to a master in a foreign port upon a bill drawn by him on strangers, and the person making such advances in- dorses the bill away, will the indorsee have a right of action against the ship- owner ? Ibid. * (57) A person who lends money to be emploved in the repairs of a vessel, or to furnish her with supplies, has the same pri- vilege against the vessel that material men have. See Davis y. Child, Daveis, 71. [Ame- rican.] (58) The plaintiff must show that it was necessary to borrow the money, and must prove the actual application of it. Bogle v. Atty, Gow, 50. [American.] (59) The Admiralty Court has jurisdiction where the master of a vessel borrows money to repair damages done to it on the high seas. The Rainbow, Bee, 116. [American.] (60) The relation between the master of a vessel and his owners is not such that they thereby become liable as acceptors of a bill of exchange drawn on them by him in a foreign port, for supplies furnished to the vessel. Bowen v. Stoddard, 10 Met. 375. [American.] 4 F 1162 NECESSARIES, REPAIRS AND SUPPLIES. 141. Semble, if persons furnish, neces- saries or make disbursements for a vessel in a foreign port, on condition that they he repaid before the departure of the vessel, and third parties supply the mas- ter with funds to mate such repayment, and take a bill drawn by the master on the owners in their favour to secure their advance, such third parties have a right of action against the owners for the money so advanced. Drain 8f Co. v. Scott, Cases in the Court of Session, 3rd Series, Yol. 3, 114. [Scotch.] 142. Where funds have been advanced in a foreign port to the attorney and agent of the owners, to be disbursed for the service of the vessel, the owners will be liable, although it may not be proved that the whole advances were actually applied for the service of the vessel. Havilland v. Thomson, Ibid. Vol. 3, 313. [Scotch.] 143. The master of a ship has autho- rity to borrow money, but only in a case where a ready-money payment is abso- lutely necessary, as for port or light dues, &c. ; and in all cases where practicable he must first communicate with the owner, and in no case can he bind the owner for money lent for the purpose of paying a debt already incurred. Beldon v. Camp- bell, 17 L. T. 257 ; 6 Exch. 886. 144. The master hired a steam tug to tow his vessel into port, and after the services were completed borrowed money to pay for the towage. Held, that the owner was not liable to repay the sum so borrowed. Ibid. . 145. Money advanced to discharge a debt incurred for necessaries does not found a claim for necessaries under 3 & 4 Vict. c. 65, s, 6. The N. H. Gosfabrick, Swabey, 345 ; 31 L. T. 345 ; 6 W. E. 871. 146. A claim in respect of money ad- vanced to the master to procure his release from gaol, where he had been imprisoned for a debt incurred for necessaries sup- plied to the ship : held, not recoverable as necessaries. ' Semble, the master is not necessary to the ship. Ibid. 344. . - 147. It appeared by the pleadings that a Monte- Videan vessel, on her arrival at Malaga, was placed by the master, accord- ing to the law of Monte- Video, under the control of his consul, who appointed as consignee P., who furnished necessary disbursements under an agreement with the consul and master that the amount thereof was to be repaid to P. before the ship was allowed to sail, and, by the law of Malaga, P. had a maritime lien against the ship for such disbursements. The master obtained from H. funds to pay off P. Held, that such payment by H. did not found, a claim as for necessaries or supplies within the meaning of 3 & 4 Vict. c. 65, s. 6, nor the Admiralty Court Act, 1861, s. 4. The India, 32 L. J. P. D. &A. 185; 2N. E. 42. 148. Disbursements on account of wages made to crew while in a foreign port, money to pay which, inter alia, was raised on bottomry, disallowed on reference of account of such bond to registrar and merchants. Objection to such report overruled, on the ground that it was a premature payment that might never be- come due, and, if so paid, might (as in this case it did) fall on the owners of cargo, who were not properly liable for it. The Cognac, 2 Hagg. 393. 148a. The master of a vessel has power, incidental to his appointment, to borrow money, but only in cases where ready money is absolutely necessary, that is to say, where certain payments must be made in the course of the voyage, such as the payment of port dues, or lights, or any dues which require immediate cash settlement. The Hemisphere Borealis, 5 Jur. N.S. 377. [Irish.] 149. The master of a vessel has no authority to borrow money after work has been done for the purpose of paying the debt due for it, unless a very strong case of necessity exists which may justify him in doing so. Ibid. 150. A claim in respect of money ad- vanced to the master to pay averages, held, not recoverable as necessaries under 3 & 4 Vict. c. 65, s. 6. The Aaltje Willel- mina, L. E. 1 A. & E. 107. 151. A firm in "England, having ac- cepted and paid a bill of exchange drawn on them by the master abroad to procure necessaries, may sue the ship in the Ad- miralty Court as for necessaries. The Onni, 3 L. T. N.S. 447; 1 Lushington, 154. 152. Money advanced to the master of a foreign vessel on bills upon the owner, and afterwards covered by an assignment of freight, held not recoverable under 3 & 4 Vict. c. 65, s. 6. The Armadillo, 1 Notes of Cases, 75. 153. Moneys obtained by means of a bill of exchange to procure necessaries, are necessaries within 3 & 4 Vict. c. 65 s. 6. The Anna, 45 L. J. Adm. 98 ; affirmed on appeal, 1 P. D. 253 ; 46 L J. P. D. 15 ; 34 L. T. 895. 154. An advance of money to pay a bottomry bond, for which the ship was NECESSARIES, REPAIRS AND SUPPLIES. 1163 arrested, such advance being made under a contract to pay off claims outstanding on the ship, and outfit her for a new voyage, in consideration of receiving brokerage and the prepaid freight for the new voyage, is not within 3 & 4 Vict. c. 65, and cannot he recovered in the Admiralty Court. The Onni, 1 Lushing- ton, 154. 155. A foreign ship having been ar- rested at the suit of a bondholder, money was advanced to the master to enable him to pay seamen's wages. Held, upon an unopposed motion, that such money was recoverable against the ship as neces- saries under 3 & 4 Vict. c. 65. But qucere, if the motion had been opposed. The Henry Reed, 32 L. T. 166 ; 7 "W. E. Adm. 180. 156. Owners are personally responsible for money advanced, though without their authority, to the master abroad in the course of a foreign voyage ; but the lender, to entitle him to recover, must prove the actual existence of the necessity for such advances. Carey v. White, 1 Bro. Par. Oases, 284 ; Rocher v. Busher, 1 Stark. 27; Evans v. Williams, Abb. Sh. (12th ed.), 93. 157. A loan to the master of money constitutes a debt for which an action lies against the owner. The Salacia, 32 L. J. Adm. 43. 158. The money must be advanced to the master expressly for the use of the ship, otherwise, although expended for that purpose, the owner will not be re- sponsible for it to the lender. Thacker v. Moates, 1 M. & Eob. 79. 159. The money so supplied to a mas- ter must not be understood to be an indefinite supply of cash, which the mas- ter may dissipate, but only such as is warranted by the exigency of the case, as for the payment of duties or other necessary purposes. Rocher v. Busher, 1 Stark. 27; Boyce v. Attorney- General, Abb. Sh. (12th ed.), 96; Robinson v. Lyall, 7 Price, 592. 160. It is not sufficient to prove the advance of a much larger sum than was necessary for the use of the ship and an application of part of that sum to such uses, and that the residue was placed to the private account of the master. Pal- mer v. Gooch, 2 Stark. 428. 161. A less degree of evidence might suffice to prove the existence of a neces- sity in the case of the supply of an anchor and cable than would be required in the case of a loan of money. Webster v. See- kamp, 4 B. & Aid. 354 ; The Alexander, 1 W. Eob. 361 ; 6 Jur. 241 ; 1 Notes of Oases, 380. 162. A part owner of a vessel is liable for money lent to the master in order to pay harbour dues. Snowdon v. Chad- wick, 15 L. T. 92. 163. A charter-party contained a clause " that sufficient money should be ad- vanced to the master for disbursements, not exceeding £200." The party to whom it was addressed having advanced to the master, when abroad, a larger sum for the use of the ship, held, that he was entitled to recover the full amount against the owners. Vaughan v. Filzhugh, 3 Jur. 1002. 164. Disbursements for victualling the crew, to discharge which, inter alia, money was raised on bottomry, allowed, on re- ference of accounts to the registrar and merchants, and confirmed by the court. The Cognac, 2 Hagg. 385. 164a. The insurance of a ship is not a necessary within 3 & 4 Vict. c. 65, s. 3. A foreign vessel was in an English port, and the plaintiffs made advances for neces- saries to the owner, who was temporarily in England, he undertaking to return the advances with interest on the return of the vessel from her voyage. The plain- tiffs were authorized to cover the amount advanced by insurance on ship, &c, out and home at owner's costs. In an action in rem for the advances, held, by the Court of Appeal, that this agreement was not equivalent to a bottomry bond ; that 3 & 4 Vict. c. 65, s. 6, did not give a maritime lien for necessaries, but only a right to seize the ship on the institution of an action, and that, therefore, the plaintiffs could not recover against the vessel. Judgment below (8 P. D. 151 ; 52 L. J. P. 83 ; 49 L. T. 405 ; 32 W. E. 279 ; 5 Asp. 145) reversed. The Ella A. Clark, Br. & L. 32 ; The Heinrich Bjorn, 10 P. D. 44. 3. Claims by Agents.* 165. It might be a question whether au _ * (61) A Court of Admiralty has no juris- diction over a claim against the owners of a vessel made by their agent for money paid by him for or about the vessel, and praying for an account and payment of the money due to him. Mintwin v. Maynard, 17 How. (U.S.) 477. [American.] (62) A special agent of the charterer of a 4 f 2 1164 Necessaries, repairs and supplies. agent accepting an agency, on condition of Being repaid his advances out of the freight and average apportionments, could proceed against the ship for disbursements and advances. The Helena Sophia^ 3 W. Bob. 272 ; 7 Notes of Cases, 492. 166. If it be proved that there was an agent of the ship ready to make all neces- sary 'payments on the personal credit of the owners, and to repay whatever might have been previpusly disbursed, it is doubtful whether an action, under the act of parliament, could be maintained against the ship on account of advances made for her service, and on the credit of the vessel. Ibid. 167. An agreement between the agent of a ship and a broker, whereby, on cer- tain terms, the latter undertook thoroughly to refit the ship, held, not to affect a third party who had supplied necessaries to the ship without any knowledge of this agree-' ment. The Perla, 4 Jur. N.S. 741; Swabey, 353. 168. The agent, also part owner, may recover against the ship for necessaries supplied. The Twentje, otherwise The West Friesland, 8 W. E. 423 ; Swabey, 454, 456; 5 Jur. N.S. 658; 13 Moore, P.O. 0. 186; 2L. T. N.S. 613. 169. A ship cannot be made liable to arrest for a general balance of account merely by appropriating the receipts and payments in such a manner as to show a balance due for necessaries. Ibid. 170. An agent appropriating in his accounts with his principal, sums received to the payment of specific items, is estopped from disputing the payment Of those items. Ibid. 171. The agents of a foreign vessel re- ceived freights payable in London, and out of the proceeds paid expenses incurred there, and from time to time made out accounts, in which they placed the sums so paid and received respectively to the debit and credit of each successive voyage. Coals had, on six occasions, been supplied to the ship upon orders given by the agents, and they debited each voyage with the price of the coals so supplied. In the result of the six accounts for coals £l:4s. 6d. was due to the agents. In taking an account of all the agents' deal- ings with the ship there appeared to be a balance in their favour of £195 : 8*. Id. Held, on appeal, that in order to obtain a charge on the ship, the agents were not entitled to select from the accounts the items which consisted of charges for coals, and to attribute the balance specifically to those items. Ibid. See also, as to the appropriation of payments, Devaynes v. Noble, Tudor's Leading Cases in Mari- time Law, p. 1. 172. The 3 & 4 Vict. c. 65, s. 6, looks to an immediate necessity, not to the liquidation of a mercantile account, where credit is given by the agent in the ordi- nary course of business. Therefore where the agents and brokers of a French ship received the freights and paid the dock dues, pilotage, and clearance charges, to- gether with £186: 3s. for coals supplied to enable the vessel to leave London, and the balance of their account amounted to £81 : 15s. 6d., held, that they were not entitled, in respect of the balance, to arrest the ship in a suit for necessaries. The Comtesse de Fregeville, 4 L. T. N.S. 713 ; 1 Lushington, 329 ; 1 Asp. 106. 173. An advance of money to pay a bottomry bond, for which the ship is arrested, such advance being made under a contract to pay off claims outstanding on the ship, and outfit her for a new voyage, in consideration of receiving brokerage and the prepaid freight for the new voyage, cannot be recovered in the Admiralty Court under 3 & 4 Vict. c. 65, s. 6. The Onni, 3 L. T. N.S. 447; 1 Lushington, 154. 174. A charter-party contained a clause "that sufficient money should be ad- vanced to the master for disbursements, not exceeding £200." The party to whom it was addressed having advanced to the master, when abroad, a larger sum for the use of the ship, held, that he was entitled to recover the full amount against the owners. Vauqhan v. Fitzhuqh, 3 Jur. 1002. ^ 175. The following persons shall be liable to pay light dues for any ship in respect of which light dues are payable ; (that is to say,) the owner or master, or such consignees or agents thereof as have paid or made themselves liable to pay any other charge on account of such ship in the port of her arrival or discharge, and in default of payment such light dues may be recovered in the same man-- ship cannot charge expenses, advances or liabilities incurred for the ship by him i n that capacity, against the owners or the ship, on any implied obligation of the owners to tan. The Joseph Cunard, Olcott, Adm. 120. [American.] NECESSARIES, REPAIRS AND SUPPLIES. 1165 ner as penalties of the like amount may be recovered by virtue of the principal act. The Merchant Shipping Act Amend- ment Act, 1862 (c. 63), s. 45. 176. Every consignee and agent (not being the owner or master) hereby made liable for the payment of light dues in respect of any ship may, out of any monies in his hands received on account of such ship, or belonging to the owner thereof, retain the amount of all dues so paid by him, together with any reason- able expenses he may have incurred by reason of such payment or liability. Ibid. s. 44. 177. Cargo having been sold, and the proceeds paid into court, the court ordered that out of such proceeds pro ratd freight should be paid to the shipowners. On an application by the ship agents, held, that they were entitled to be paid out of such pro raid freight their charges for neces- saries. The Soblomstein, L. E. 1 A. & E. 293 ; 36 L. J. Adm. 5. 178. The master has a possessory lien on the cargo for its share of general ave- rage expenses, but a ship agent has no such lien upon ship, freight or cargo, nor a right of action in rem against any of them. Ibid. 2 Asp. 436. 179. Although the agent of a foreign ship who pays money for necessaries, or incurs liability for them, can sue the ship, he cannot sue the ship to recover the balance of an account. The Underwriter, 1 Asp. N.S. 127. 180. Quaere, although the fact of an agent being also a part owner, does not prevent his recovering against the ship for necessaries supplied, can he so re- cover when he is concerned in the parti- cular voyage for which the necessaries have been supplied ? Ibid. 181. It was stipulated by charter- party that cash for disbursements not exceeding £250 should be advanced by charterers' agents out of freight. The agents who had no funds of the char- terers in hand, refused to advance the money until the master en gaged to reim- burse them at the port of discharge out of freight earned. Held (Lord Cowan dissenting), that the agents having no funds were not, under the circumstances, bound to advance the money, that there- fore it was not advanced under the charter-party, but under the agreement entered into with the master, which agreement was not ultra vires, and that the owners and master were liable to the charterers' agents for the sum advanced. Benn v. Porret, Cases in the Court of Ses- sion, 3rd Series, Vol. 6, 577. [Scotch.] 182. A ship's agent was appointed by the master on his arrival at Bristol. He had no previous knowledge of either master or owner, but made no inquiries as to how he was to be repaid his ad- vances for necessaries. He allowed the vessel to be placed in the hands of a shipwright to be repaired, and when her value was by this means increased, caused her to be arrested. Held, that he was not entitled to be paid his claim in pri- ority to the shipwright. The Panthea, 25 L. T. Adm. 983. 183. As to advances by agents on bot- tomry, see tit. Bottomry, p. 133. 4. Claims by Part Owners. 184. An agent, also part owner, may recover against the ship for necessaries supplied. The West Friesland, Swabey, 456; 5 Jur. N.S. 658; 13 Moore, P. C. C. 186 ; 2 L. T. N.S. 613 ; 8 W. E. 423. 185. One of several co-owners of a ship, who acts as ship's husband, is only en- titled to charge the cost price of supplies to the ship furnished by him in the course of his business. Ritchie v. Cowper, 28 Beav. 344. 186. A part owner, W., was registered as managing owner, without the know- ledge of C, another part owner. "W., without the knowledge or consent of C., obtained from the plaintiff necessaries for a voyage not authorized by C. Held, that C. was not liable for such neces- saries. Frazer v. Cuthbertson, 6 Q. B. D. 93 ; 50 L. J. C. L. 277. 187. A co-partner in the ship may sue the ship for such advances made by him, but not if he is interested in the par- ticular voyage for which the ship is sup- plied. Ibid. The Underwriter, 1 Asp. N.S. 127 ; 25 L. T. N.S. 279. 188. See, as to accounts between part owners, tit. Owners, Pt. VIII. c. 5. 5. Lieu. 1. Generally.* 189. The general maritime law of Eu- rope does not require a bond of hypothe- * (63) The material man who supplies a foreign ship with necessaries has, by the _general maritime law, a lien on the specific ship, which may be enforced in Admiralty by a proceeding in rem, and he also has the per- sonal security of the owners and master, 1166 NECESSARIES, REPAIRS AND SUPPLIES. cation to give a maritime lien on the ship for advances. But hy the law of this country, since the reign of Charles II., such an instrument is absolutely neces- sary for such purpose. The Vrow Mina, 1 Dodson, 235 ; The Alexander, ibid. 280 ; The Zodiac, 1 Hagg. 325 ; The Vibilia, 1 "W. Eob. 6 ; Watkinson v. Bernardiston, 2 P. "Wms. 367; The Neptune, 3 Knapp, P. 0. 0. 94 ; Ex parte Shank, 1 Atkins, 234; Justin v. Ballam, Salk. 34; The "Maitland, 3 Hagg. 254 ; Life of Sir Leo- line Jenkins, Vol. 1, p. 76. '•/ 190. Similarly as to ordinary repairs, Buxton v. Snee, 1 Vesey, 154 ; Hoare v. Clement, 2 Show. 338; Abb. Sh. 143; Cradock's ease, 2 Brownlow, 37 ; Leigh v. Burleigh, Ow. 122; Wilkins v. Carmi- chael, 3 Dougl. 101 ; Smith v. Plummer, 1 B. & A. 575 ; Wood v. Hamilton, de- cided in Dom. Proc. June 15, 1789 ; Built v. Mitchell, 4 Camp. 146 ; and Wood v. Meir's Crs., Jan. 31, 1810; 1 BeU, 527, n. 3 ; 2 ibid. 98, n. 1. [Scotch.] 191. A statutory lien, however, is now given in respect of such claims. See the Admiralty Court Act, 1861 (c. 10), ss. 4 and 5, and 3 & 4 Yict. c. 65, s. 6. 192. The Admiralty Court Act, 1861, s. 5, does not create a maritime lien for necessaries at the time the necessaries are supplied, and a ship does not become chargeable with a debt for necessaries until a suit is actually instituted. Johnson v. Black ; The Two Ellens, 41 L. J. P. C. 33; 40 L.J. Adm. 11; L. E. 4 P. C. 161; L. E. 3 A. & E. 345 ; 1 Asp. N.S. 208 ; 8 Moo. P. C. N.S. 398 ; and see Nos. 35, 36, and 36a, pp. 1153, 1154. 193. No maritime lien attaches to a British ship in respect of coals or other necessaries supplied to it in a possession in which a Vice-Admiralty Court is esta- blished. Laws v. Smith, or The Rio Tinto, 9 App. Cas. 356; 50 L. T. 461; 5 Asp. 224. 194. Vice-Admiralty Courts have not (apart from the statute) more than the ordinary Admiralty jurisdiction, *. e., as it existed before 3 & 4 Vict. c. 65, enlarged it. The Vice-Admiralty Act, 1863 (c. 24), s. 10, does not create a maritime lien with respect to necessaries supplied within the possession. Ibid. 195. A material man who _ supplies stores and materials for the equipment of a British ship has no maritime lien there- on, and cannot therefore enforce his claim against the ship in the hands of a subsequent purchaser, even though such purchaser had notice at the time of the purchase that the claim was still un- paid. The Aneroid, 2 P. D. 189 ; 47 L. J. Adm. 15 ; 36 L. T. 448. 196. Claimants for necessaries have the same rights of suit in the Admiralty Court as those possessed of a maritime Hen. The Ella A. Clark, otherwise Golden Age, 8 L. T. N.S. 119; Br. & L. 32 ; overruling The Gustaf, 6 ibid. 660 ; The Alexander, 1 W. Eob. 294. 196a. But now held (overruling The unless the master takes care by express terms to confine the credit to the ship and owners. The Brig Nestor, 1 Sumner, 73 ; The Ge- neral Smith, 4 "Wheaton, 443. [Amebican.] (64) A right to proceed in rem may exist, although there may be no maritime hen upon the res against which the claim is made. There is no maritime hen for necessaries sup- plied to a ship in her home port, and yet, by the United States rules of practice for Courts of Admiralty, the material men may pro- ceed in rem against the ship. Wolf v. The Scow Selt, 2 Asp. N.S. 107. [American.] (65) Semble, that the hen of material men for neeessaries supplied to a ship in her home port — that is, their right to be paid out of the res — attaches only on the seizure of the ship under Admiralty process. Ibid. (66) Shipwrights have a hen on ships for repairs if actual possession be retained, and the money for the repairs be due, but the debt must be due before the lien can be claimed, and a usage to give credit is equiva- lent to an express contract. In the case, however, of an agreement to put the ship in thorough repair, the shipwright is not pre- vented from claiming for the work partly done. Where the possession is parted with the lien is lost, though the mere giving up the ship's register would not be a delivery of possession. Cross on Liens, p. 311 et seq. (67) A wharfinger has a hen on a vessel for wharfage, but if a vessel is under arrest on legal process, and in custody of the law, he cannot enforce his hen by a detention of the vessel, he must apply to the court for its allowance, and it will be ordered to be paid in concurrence with other hens standing in the same rank of privilege. The Phebe, "Ware, 354 ; 1 Conkhng's Adm. Prac. 2nd ed. p. 304. [American.] (67a) Semble, a wharfinger's hen is to be regarded as a common law lien, depending on possession, and not as an Admiralty hen, conferred by the maritime law, and existing independently of possession, though likened to a material man's hen. See 1 Conkhng's Adm. Prac. 2nd ed. pp. 79, 305 ; Ex parte Lewis, 1269 17. Report 1269 18. Order for Release or Detention 1270 19. Costs 1270 20. Service of Documents 1270 21. Computation of Time 1270 22. Fees 1270 23. Deposit of Papers at Wreck Commis- sioners Office, London 1270 3. Appeal to Scientific Referees 1270 4. Unsafe Ships (Foreign) overladen or improperly laden. 1. Power of Detention. (a) Generally 1270 (b) Notice to Consul 1271 2. Survey 1271 3. Order for Detention or Release , 1271 4. Appeal. (a) Generally 1271 (b) Assessors 1271 5. Sendins^jjpBriw^MfeK-fhips to • ea '.. .7>?w.^, 1271 6. Unseaworthiness or insuflicien*vv„_ Accommodation of Ship. 1. When charged by Seamen in Dfftnce. (a) Generally L1J ^ i ^00^. 1272 Vnd Order .... 1272 S Compensation 1273 iu On Investigations by Naval Courts . . 1273 7. 'Implied Obligation of Seawortbi- f ness in Contracts with Sea- men 1273 8. Service of Documents. See Pt. II. p. 1253. Part IV.-PASSENGER SHIPS. 1. Generally 1273 2. The Ship ^75 3. The Voyage 12 7 6 4. India, Asia and Africa 1276 5. China. 1. Generally .,,.,., 1276 2. Forfeitures J277 6. The Colonies. 1. Australasia, J270 2. Canada ......,,,,,,,,,,,,,, 107a OWNERS. 1175 8. The Colonies — continued. 3. Colonial Voyages. (a) Generally p. 1278 (b) Exemptions . . 1 278 (o) Proclamation as to Requirements. (aa) Generally 1279 (bb) Enforcement. . 1279 (oo) Proof of Proclamations . . 1279 4. Colonial Certificates 1279 6. Application of Penalties 1279 7. Orders in Council 1279 8. Abstracts of Acts and Orders in Council. 1. Generally 1280 2. Copies to Masters 1280 3. Production and posting up by Masters 1280 9. Bond to the Crown. 1. Generally 1280 2. Certificate of Execution 1280 3. Transmission 1281 4. Limitation of Actions on — 1281 10. Surveyor-General 1281 11. Emigration Officers. 1. Generally 1281 2. Inspection by — 1281 3. Certificate of Clearance. (a) Before Clearance 1281 (b) After, touching at or putting back to the United Kingdom damaged or otherwise 1282 4. Appeal from refusal of Certificate . . 1282 12. Shipwright and Engineer Sur- veyors. 1. Appointment 2. Powers 3. Duties 4. Remuneration 5. Surveys 6. Declarations of Result of Survey. (a) Shipicright' s Surveyor (b) Engineer's Surveyor (o) Appeal from — (d) Costs of Appeal (e) Transmission 13 Surveys for Seaworthiness be- fore Clearance. 1. Generally 2. Appeal and Survey anew 14. Board of Trade Certificates. 1. Generally , 2. Transmission and Notice of Trans- mission 3. Production of— 4. Posting up of— , 5. Cancellation or Revocation 6. Re-issue or Re-grant after Cancella- tion 1282 1282 1282 1282 1283 1283 1283 1284 1284 1284 1285 1286 1286 1288 1288 1288 1289 1289 14. Board of Trade Certificates— contd. 7. Expiration p. 1289 8. Fees 1289 9. On Foreign Survey 1289 15. Consular Officers 1290 16. Passenger Brokers. 1. Bond , 1290 2. Licence. (a) In England 1290 (b) In Scotland 1291 (o) Forfeiture 1291 3. Agents 1291 17. Emigration Runners 1291 18. Construction of Decks and Beams 1291 19. Light and Ventilation 1291 20. Safety Valves 1292 21. Fire-Engine and Apparatus .... 1292 22. Anchors and Cables 1293 S3. Chronometers and Compasses . . 1293 24. Hospital and Fittings 1294 25. Privies 1295 26. Ship's Boats, Bafts and Life- buoys 1295 27. Signals of Distress and Lights . 1295 28. Crew. 1. Sufficiency 1295 2. Appeal from Emigration Officer's De- cision 1296 3. Medical Inspection 1296 29. Cooks and Cooking Apparatus . 1296 30. Stewards 1296 31. Cargo. 1. Horses, Cattle and Dangerous or In- jurious Goods 1297 2. Stowage. (a) Interference with Passenger Ac- commodation 1298 (b) Storage of Water 1298 32. Interpreters 1298 33. Medical Man 1298 34. Medical Stores. 1. Generally 1299 2. Inspection 1299 35. Provisions and Water. 1. Generally 1300 2. Lime Juice , 1304 3. Soft Bread 1304 36. Computation of Lengths of Voyages 1304 1176 OWNERS. 37. Passengers' Lists. 1. Outward-bound Ships. (a) Generally p. 1304 (b) Delivery 1305 (c) Production 1305 2. Homeward-bound Ships. (a) Generally 1305 (b) Delivery 1305 38. Trustees of Bocks or Basins. 1. (a) Generally 1305 (b) Enforcement 1305 39. Regulations for Order, Health and Cleanliness 1305 40. Regulations for preventing Spread of Disease 1306 41. Quarantine 1306 42. Passengers. 1. Generally 1306 2. Number 1307 3. False Representations to — 1309 4. Contract Ticket. (a) Generally 1309 (b) Production to Emigration Officer 1310 6. On what Decks to be carried 1310 6. Shelter for Deck-carried Passengers . . 1311 7. Berths. (a) Construction and Arrangement . . 1311 (b) Separation of Sexes 1311 (o) Removal 1311 (d) Bight to— 1312 8. Sick or unfit Persons 1312 9. Medical Inspection 1313 10. Delay in Sailing , 1313 ■11. Relanding for purifying Ship 1314 12. Landing of— at Port contracted for . . 1314 13. Maintenance on Board for Forty-eight hours after arrival at Port of Desti- nation 1314 14. Forwarding of — to their Destination. (a) Generally 1314 Co) Ship wrecked or unfit to proceed 1315 • (o) Ship damaged and putting into intermediate Port 1316 15. Molestation of— 1316 16. Misconduct of—. (&) Generally 1316 (b) Attempting to enter or refusing to leave Steamer 1316 (o) Non-payment or short Payment of Fare 1316 (d) Non-production of Ticket 1317 (e) Refusing Name or giving false Name 1317 (f) Apprehension and Trial 1317 43. Misconduct generally , . 1317 44. Misconduct of Persons on Board 1317 45. Stowaways P- 1318 43. Sale of Spirits 1319 47. Insurance of Passage-money . . 1319 48. Registration of Births and Deaths 49. Forms, &c 50. Service of Documents 1319 1319 1320 51. Forfeitures. 1. Generally ." 1320 2. Sailing without Clearance. (a) From Port of Departure' 1320 lb) After putting in damaged .... 1320 3. Sailing without Bond to the Crown . . 1320 4. Seizure and Proceedings thereon 1320 52. Passage or Subsistence Monies, Damages or Compensation. 1. Who may sue 1320 2. How and before whom recoverable ... . 1321 53. Penalties. 1. Who may sue , 1321 2. Before whom recoverable. (a) In England 1321 (b) In Scotland 1321 (a) Generally 1321 (b) Service 1321 4. Warrant without Summons 1321 5. Proceedings by Default. (a) Generally 1321 (b) Warrant 1322 (a) Generally 1322 (b) Adjournment , 1322 7 '. Proof of Exemption 1322 8. Proof of Officer's Authority 1322 9. Witnesses 1322 10. Conviction or Adjudication 1322 11. Order. (a) Generally 1322 (b) Service of— * 1322 (o) Enforcement of — 1322 12. Want of form in Proceedings 1322 13. Defector Variance in Proceedings ... . 1322 14. Limitation of Actions 1323 15. Application. (a) Generally 1323 (b) As Compensation 1323 16. Forms ,' 1323 54. Actions against Officers. 1. Limitation 1323 2. Tender of Amends 1323 3. Pleadings and Proofs 1323 4. Costa. See tit. " Costs," p. 416. 55. Pilotage 1323 OWNERS. 1177 Part V -DECK AND GRAIN CARGOES, AND DANGEROUS GOODS. 1. Seek Cargoes. 1. Generally .' p. 1323 2. During Winter 1324 3. Exemptions „ , 1324 4. Additions to registered Tonnage. See s. 1, p. 1324. 5. Detention of overladen or improperly- laden Ships. See Pt. III. p. 1258. 2. Grain Cargoes in British Ships generally. 1 . Interpretation of Terms 1325 2. Obligation of proper Precautions .... 1325 3. Authority of Inspectors 1325 4. Prosecution of Offenders and recovery of Penalties 1325 5. Exemptions 1325 3. Grain Cargoes in British Ships from particular Forts. 1. Generally 1325 2. On what Decks to lie carried in Sulk.. 1325 3.. Proportion to be carried in Sags. (a) Generally 1325 (b) Exceptions. faa) Oats or Cotton- Seed 1325 (bb) Sailing Ships under 400 Tons, and not in Atlantic Trade 1326 (co) Ships laden in Mediter- ranean and Slack Sea Ports, and specially fitted 1326 (dd) Ships carrying only half a Grain Cargo, and specially stowed 1326 4. longitudinal Sulk-head or sufficient Shifting Soards .... '. . . . 1326 6. Stowing, Trimming and Securing ... . 1326 6. Effect of Breach of Regulations 1326 7. Exemption of Ships loaded under Soard . fif Trade Mules. (a) Generally 1326 (b) Soard of Trade Sales 1 326 8. Notices at loading and Delivery Ports. (a) At loading Port 1328 (b) At Delivery Port. . .faa) . Generally 1328 (bb) Transmission to Soard of Trade 1329 ' ' (o) Effect of breach or false State- ■ ment 1329 .(d) Exemptions by Soard of Trade. (aa) Generally 1329 (bb) Soardof Trade Notices. . 1329 9. Authority of Inspectors 1329 10. Interpretation of Terms. Seep. 1325. 11. Prosecution of Offenders and Recovery of Penalties. Seep. 1254. P. 4. Explosive Substances and Dan- gerous Goods. 1. Generally , p. 1329 2. Marking and Notice. (a) Generally 1333 (b) Throwing Overboard 1333 3. False Description 1333 4. Refusal to carry 1333 5. Forfeiture. (a) Generally 1333 (b) Jurisdiction 1334 6. In Passenger Ships. See Pfc. IV. p. 1297. 7. In the Thames 1334 8. In the Mersey 1334 5. Service of Documents, p. 1253. See Pt. II. Part VI -EXEMPTIONS FROM AND LIMITATION OF LIABILITY OF SHIPOWNERS. 1. Exemptions. 1. Fire 1334 2. Robbery or Embezzlement of Gold, Sil- ver or Jewels 1335 3. Barratry. See tit. "Maeine In- stjeanoe," p. 1038. 4. Acts of Harbour Masters. SeePt. II. p. 1233. 5. Compulsory Pilotage. See Pt. VII. p. 1349. 2. Limitation under M. S. Acts. 1. Generally 1336 2. The Crown 1339 3. 'Foreign Ships 1339 4. 'As affected by Sail: 1339 5. Soard of Trade Inquiries 1339 6. Actions of ter Board of Trade Inquiries 1341 7. Notice to Soard of Trade before Action 1341 8. Board of Trade Inquiry after Action brought 1342 9. Pi oceedings for limiting Liability. fa) Generally 1342 (b) Admission of Liability 1345 (0) Calculation of Tonnage 1&45 (d) Costs. See tit. "Costs," p. 403. 10. Owner in Fault oi- privy to Damage,. 1316 11. .Interest and Costs. Seetit. "Costs," p. 403. 12. Owner of British Ship not recognized as British 1347 13. Accounting for Damages between Part • ■ Owners 1347 14. Practice 1347 3. Limitation under repealed Sta- tutes. 1. Generally 1347 2. ValueofShip 1347 3. Freight 1348 4. Interest and Costs. Seetit. "Costs," p. 403. 5. Owner in Fault or privy to Damage . . 1318 •' ' 4G 1178 OWNERS. Part VII.-COMPULSORY PILOTAGE. 1. Liability by Common Law p. 1349 3. Liability by Statute. 1. Before the M. S. Acts 2. Since the M, S. Acts , 1350 1350 1353 3. Crown Ships 4. Ships one or both Foreign. 1, Generally , 1354 2. In the Mersey. See c. 26, p. 1384. 5. Ships carrying Passengers 1355 6. Pilotage Certificates. 1. Generally 1356 2. By Board of Trade 1356 S. By Pilotage Authorities in general* . . 1356 4. By Trinity Souse, London 1357 5. By Trinity Souse, Sull 1357 7. Board of Trade. 1, Generally 1357 2. Exemptions 1357 8- Pilotage Authorities in general. 1, Bowers and Jurisdiction 1357 2, Compulsion 1357 3, Exemption. (a.) Generally 1358 (b) Vessels under 60 tons 1358 9. Trinity House, London District. 1. Generally 1359 2. Compulsion 1359 3. Exemption. ' (a) Generally 1360 (b) Ships trading to Norway, §c. . . 1361 (0) Ships trading to Boulogne or North of Europe 1361 (d) Constant Traders inwards from Forts north of Boulogne .... 1362 (e) Ships trading between Great Britain and Torts north and east of Brest 1362 (f)' Ships in Coasting Trade 1362 (g) Ships navigating between Ports of the United Kingdom in Ballast 1363 (h) Ships navigating between Ports of the United Kingdom and the Channel Islands 1363 (i) Ships passing through Pilotage districts 1363 (j) Ships within their own Ports . . 1364 (k) Irish Traders in Thames and Medway 1365 (1) Colliers 1365 (m) Ships with Stone from the Chan- nel Islands 1365 (n) Ships not exceeding 60 tons bur- then 1365 (o) Ships carrying Provisions 1365 (p) Masters and Mates Part-owners residing at Dover, §e 1366 (q) Removal of Ships in Port 1366 10. Trinity House Outport Districts, 1. Generally P- 2. Compulsion ... • 3. Exemptions 4 . Aberdovey • 5. Beaumaris 6. Bridgwater • 7. Bridport 8. Caernarvon 9. Carlisle 10. Colchester 11. Cowes 12. Dartmouth 13. Exeter 14. Falmouth ■ Flcetwood-on- Wyre and Barrow .... Fowey Sarwich 15. 16. 17. 18. 19. Ipswich 20. Isle of Wight . . 21. lowestoft 22. Maldon 23. MUford 24 Neath 25. Newhaven .... 26. Padstow 27. Penzance 28. Plymouth 29. Poole 30. Portmadoo .... 31. Portsmouth .... 32. Bye 33. St. Ives, Sayle 34. Scilly 35. Shoreham 36. Southampton .. 37. Teignmouth 38. Wells 39. Weymouth .... 40. Woodbridge .... 41. Yarmouth .... 11. 12 Trinity House, English Channel District Trinity House, Hull. 1 . Generally , 2. Compulsion 3. Exemption 4. Port of Gainsborough 6. PortofGoolel 6. The Sumber 7. Port of Spalding , . , , 8. Port of Wisbech 9. East Coast Pilotage District .,...,., 10. Exemption ..,,,. 13. Trinity House, Newcastle-upon- Tyne 14. Port of Arundel . .„ 15. Port of Berwick-upon-Tweed . . 1366 1367 1367 1368 1368 1368 1368 1368 1368 1369 1369 1369 1369 1369 1369 1369 1369 1369 1369 1369 1370 1370 1370 1370 1370 1370 1370 1370 1370 1371 1371 1371 1371 1371 1371 1371 1371 1371 1371 1372 1372 137a 1372 1372 1373 1374 1374 1374 1374 1374 1374 1373 1375 1376 1376 OWNERS. 1179 Port of Boston , p. 1377 Port of Bristol. 1. Generally 1377 2. Compulsion 1378 3. Exemption 1378 Ports of Cardiff, Gloucester and Newport (including Penarth) 1379 Port of Chester 1379 Port of Clay or Blakeney (Nor- folk) 1379 Port of Douglas, Isle of Man . . 13S0 Port of Hartlepool 1380 Port of Eastings 1380 Port of King's Lynn. 1. Generally 1380 2. Compulsion 1380 Hon 1381 16. 17. 18. 19. 20. SI. 28. 23. 24. 25. Port of Lancaster. 1. Generally 1381 2. Compulsion 1381 3. Exemption 1381 26. Port of Liverpool. 1. Generally 1381 2. Compulsion. (a) Generally 1382 (b) Ships one or both Foreign .... 1384 3. Exemption 1384 27. Port of Llanelly. 1. Generally 1385 2. Compulsion 1385 3. Exemption 1385 28. Penarth Harbour 1385 29. Port of Porthcawl 1385 30. Port of Southwold 1386 31. Port of Sunderland 1386 82. Port of Swansea. 1. Generally 1386 2. Compulsion 1387 3. Exemption 1387 33. TheTyne 1387 34. The Tees 1387 35. Scotch Forts. 1. Aberdeen. (a) Genially 1388 (b) Compulsion 1383 (c) Exemption 1388 2. Arbroath or Aberbrothwick. la) Generally 1388 (b) Compulsion 1388 3. Ayr. (a) Generally 1388 (b) Compulsion 1388 (o) Exemption 1388 3a. Burntisland 1388 10. 11. 35. Scotch Ports — continued. 4. The Clyde p. 1389 5. Dingwall Sarbour 1389 Dundee 1389 Fraserburgh 1390 Girvan Harbour 1390 Glasgow. (a) Generally 1390 (b) Exemption 1390 Greenock. (a) Generally 1390 (b) Exemption 1391 Irvine 1391 12. Kirkaldy 1391 13. Zeith Trinity Souse. (a) Generally ■ 1391 (b) Compulsion and Exemption ... . 1392 14. Zeith Sarbour and Docks. (a) Generally 1392 (b) Exemption 1392 15. Lossiemouth 1392 16. Macduff 1392 17. Peterhead 1392 18. Sosehearty 1393 19. Sandhavcn 1393 20. Wick 1393 86. Irish Ports. 1. Ardglass Harbour 1393 2. Ballina 1393 3. Belfast. fa) Generally 1393 (b) Compulsion 1394 (o) Exemption 1394 3a. Carlingford Bar 1394 4. Coleraine 1394 6. Cork 1394 6.- Drogheda.. . , 1395 7. Dublin. (a) Generally 1395 (b) Compulsion 1 395 (c) Exemption 1396 8. Dundalk 13S6 9. Galway. (a) Generally 1396 (b) Compulsion 1396 (c) Exemption 1396 Zimerick 1396 Zondondcrry . (a) Generally 1396 (b) Compulsion and Exemption .... 1396 12. New Boss 1396 13. Newry 1397 13s. Fortrush 1397 14. Sligo 1397 15. Tralee 1397 16. Waterford. (a) Generally 1397 (b) Compulsion 1397 (o) Exemption 1397 17. Westport 1397 18. Wexford. (a) Generally 1398 (b) Compulsion 1398 4 G2 10. 11. 1180 OWNERS. 87. Foreign Ports. 1. Bilbao and Santander in Spain . . p. 1398 '•L.Colombo ... * 398 3. Biver Kooghly, Calcutta 1398 4. St. Peter, Port Guernsey 1398 5. South Australia 1398 6. Canada 1398 7. The Bahamas I 398 38. Pilot in Charge. 1. Generally 1398 2. Burthen of Proof. See tit. " Evi- dence," p. 450. 3. Master and Crew generally 1402 4. Obedience to Pilot's Orders 1403 5. Interference with Pilot 1403 6. Loolc-out im 7. Speed. ■ (a) Generally 1405 "(b) Stopping and Reversing of En- . . . . • gines ,..,;■' 140" 8. Steering ... 1405 9. ■ Actions between Tugs and Tows .... 1406 10. Actions- between Tug or Tow, and . thirdShip i* 09 . . 11, Ship anchoring and weighing Anchor, (a) Generally • (b) In the Mersey 12. Sufficiency of Ship and Equipment. (a) Generally 1411 "t#)"frm ''■''" Part VIII.— PART-OWNERS. 1. Generally 2. 1412 1415 I. Actions of Possession. 1.' Generally 2 Between Foreigners. See Pt. p. 1182. 3. Jurisdiction of the Admiralty Division. See tit. "JuEJBDiciiON," rt. 1. p. 638. 4. Jurisdiction of the Admiralty Court before the Judicature Acts 1417 5 Bight to displace Master. See tit. " ' ■ - "p. 1118. 1409 1411 1412 3. Actions of Restraint. 1. Generally 1418 2. Employment and Earnings 1419 4. Actions for Accounts .' 1420 5. Sale by Court 1423 6. Managing Owner or Ship's Hus- band. 1. Generally , ., ^1424 2. Remuneration 1426 7. Assignees of Bankrupt Owners. 1426 Part Is— TITLE AND REGISTRATION, 1. Title generally.* 1. As against, a wrongdoer, the owner of a Bhip is primd facie owner of the goods on board. Branckerr. Molyneux, 3 Scott, N. R-332; 3I.&G. 84. 2. Possession of n ship, under a trans- fer void for non-compliance with the Re- gister Acts, is a sufficient title in trover against a stranger for parts of the" ship wrecked." Sutton v.' Buck, 2 Taunt. 302. 3. .Until the title is impeached it is not necessary in the first instance to examine the title of a person in actual bond fide possession and ownership of a vessel. _ A party proceeding to disturb possession must succeed by the strength of his own title. ■ The John, 2 Hagg. 308. 4. The receipt from the underwriter of payments as- for a total loss on capture, in which, however, restitution had been afterwards obtained upon terms, held, not to preolude the assured from suing and endeavouring to obtain restitution on a subsequent capture of the same vessel. Robertson v. Hamilton (1811), 14 East, 522. 5. Certain- • shipbuilders in America built several ships, mortgaged them there,, sent them to England for sale, sold them there; andpaid the mortgagees in America. The mortgages were duly registered in America; but notice of the mortgage having been indorsed on the certificate of registry in one case, and having impeded the sale, it was agreed that no such notice should be endorsed in future. Another ship was accordingly sent over and sold ; the shipbuilders received the purchase-money and failed, leaving the mortgagee unpaid. Held, that the rights to the ship acquired under American law must be recognized; but that the pur- chase having taken place in this country must be governed by English law : that a ship is not an ordinary chattel, which passes by delivery, and that there ia no market overt for ships : that the pur- chaser- of a foreign ship is bound to make * (1) A ship built in the United States for alien residents abroad becomes their pro- perty without any documentary title. It passes like any other chattel. The Active, Olcott, Adm. 280. [American.] OWNERS. Part I. Title and Registration. 1181 inquiries as to title : that in this case the mortgagee had so acted as to suppress the mortgage, and to make the ship- builders his agents for sale, and that he could not maintain his claim against the purchaser. Hooper v. Oumm, McLellan v. Oumm, L. E. 2 Ch. 282; overruling V.-C. W., 13 L. T. N.S. 187. 6. Semble, the court would in some cases recognize an agreement by which a person might be for some purposes an absolute owner, and for others a mort- gagee, if such an agreement were clearly- proved and definite. The Innisfallen, L. E. 1 A. & E. 72. See also Nos. 202, 202a, infra. 2. Jurisdiction. 1. Admiralty Branch of P., D. and A. Division. (a) Generally. 7. See tit. Jurisdiction, Pt. I. c. 1, p. 638. 2. High Court of Admiralty before Judi- cature Acts.* (a) Generally. 8. The Court of Admiralty had (prior to its abolition by the Judicature Acts) jurisdiction to decide all questions as to the title to or ownership of any ship or "Vessel, or the proceeds thereof remaining in the registry, arising in any cause of Eossession, salvage, damage, wages, or ottomry. See 3 & 4 Tict. c. 65, s. 4. 9. By 3 & 4 Vict. c. 65, s. 4, the Court of Admiralty had ample authority and jurisdiction to determine which of the parties litigant is entitled not only to the possession of a ship, but to the full right of property in her. The Segredo, other- wise Eliza Cornish, 1 Spinks' Eccl. & Adm. Eep. 42. 10. In all cases of bottomry, salvage, and wages, the Court of Admiralty pos- sessed an undoubted power to decree a sale of the vessel proceeded against, un- less the demand of- the successful suitor were satisfied. The jurisdiction of the court therein was confirmed by the muni- cipal law of this country, and by the general principles of the maritime law, and the title conferred by the court in the exercise of this authority was a valid title against the whole world, and was so recognized by the courts of this and of all other countries. The Tremont, 1 W. Eob. 164. 11. The mortgagee of a vessel duly sold the vessel under a power of sale contained in the mortgage deed. By mistake a discharge of the original mort- gage was indorsed on the mortgage deed and registered. On the vendee of the vessel subsequently presenting for regis- tration his bill of sale, registration thereof was refused, on the ground that the pro- perty in the vessel had passed to the mortgagor. The mortgagee, the vendee of the vessel, instituted a suit praying that the vendee might be pronounced the sole owner of the vessel. Held, that the court had jurisdiction under The 3 & 4 Vict. c. 65, ss. 3 and 4, and sect. 11 of the Admiralty Court Act, 1861, to enter- tain the suit, and decree made in the terms of the prayer. The Rose, L. E. 4 A. & E. 6; 42 L. J. Adm. 11; 1 Asp. N.S. 567. 12. The Court of Admiralty has re- fused to entertain a cause of possession impeaching the sentence of a foreign Court of Admiralty. The Martin of Norfolk, 4 C. Eob. 293. 13. The Court of Admiralty has juris- diction to entertain an action by the majority of shipowners against an indi- vidual owner, to restore possession of the ship's register, in order that the vessel * £2)_It_was anciently held to be within the jurisdiction of the High Court of Admi- ralty to examine and pronounce for the title of ships on questions of ownership. It was not till some time after the Eestoration that the court was informed by other courts that the jurisdiction belonged exclusively to them. After that time the court was very cautious not to interfere at all in questions of disputed title, until its jurisdiction was restored to it by 3 & 4 Vict. c. 65, and subsequent statutes. The Aurora, 3 0. Eob. 133 ; The Warrior, 2 Bods. 289. (3) Though it entertained jurisdiction in causes of possession when the title was not disputed, or where a mere cobweb title was set up. The Warrior, 2 Dods. 288; The Guardian, 3 C. Eob. 93 ; The Fruit Preserver, 2 Hagg. 181. See also In re Blanchard, 2 B. & C. 244 ; Baxter v. Blanchard, 3 D. & E. 177 ; The Sisters, 4 C. Eob. 275; The Pitt, 1 Hagg. 243 ; The John, 2 Hagg. 305. (4) See the subject of the ancient juris-: diction of the English Courts of Admiralty elaborately considered by Mr. Justice Story in Be Lovio v. Boit, 2 Gallison, 464. [Ame? EICAN.] 1182 OWNERS. Part I. Title and Registration. may sail on her voyage. Anon., 2 Chit. 359 ; 3 D. & E. 178, n. See also p. 1212. 14. As to the jurisdiction of the court in reference to forfeiture of ships for con- cealment of British character, illegal as- sumption of British character, unqualified ownership, false declaration of qualifica- tion, and use of improper certificate, see Pt. II. c. 18, p. 1172. 15. As to the jurisdiction of the court as between part-owners, see Pt. VIII. p. 1180. 16. As to the jurisdiction of this and other courts to issue an order prohibit- ing the dealing with any ship or share, see cap. 3, s. 25, p. 1205. 17. As to the jurisdiction of the court — To decree sale of a ship or share in case of an unqualified owner becoming enti- tled, see cap. 3, s. 26, p. 1205. To decree, in cases of damage, a sale of the vessel and distribution of the proceeds among the several claimants, see Pt. II. p. 1218. To transfer possession of the ship to the major interest, ibid. p. 1415. To take bail for the safe return of the ship on the application of minor interests, ibid. p. 1418. Over mortgages of ships, see tit. Mortgage, p. 1129. (b) Foreigners.* 18. The Court of Admiralty had power to inquire into title in cases in which British subjects laid claim to a ship coming to this country in the possession and as the property of foreigners. The Experimento, 2 Dodson, 38, 42. 19. When foreigners were alone con- cerned, it was with the greatest reluctance that the court entertained causes of pos- session, as being questions not properly belonging to the Jus gentium, but depend- ing on the municipal regulations of dif- ferent countries with which the court could be but imperfectly acquainted. The See Reuter, 1 Dodson, 23 ; The Mar- tin of Norfolk, 4 C. Bob. 297. 20. It was the practice of the court not to entertain causes of possession between foreigners unless the cases were referred to its decision by the consent of parties, or by the intervention of the representa- tive of the foreign state devolving the jurisdiction of his own country on the court. The See Reuter, 1 Dodson, 24. 21. In a cause of possession between foreigners, an official decree, duly authen- ticated, of the authorities of their country, decreeing possession of the ship to be given up by the master, one of the parties m the suit, to the agent of the principal owners, the other party, held sufficient to authorize the court to interfere, and possession ordered in furtherance of such decree, on bail being given to answer the master's interest. Ibid. 22. The Court of Admiralty, would not interfere in the disputes of foreigners, particularly in a case of possession, with- out the consent of both parties, and an application for that purpose from the foreign minister ; and even then it did so with reluctance, and merely to prevent further inconvenience and loss by resort to the decisions of other courts in other countries. The Martin of Norfolk, 4 C. Bob. 297. 23. In a cause of possession between foreigners, entertained at the request of the parties and of the consul of their country, the court declined to investigate a decision of a foreign Court of Admi- ralty, under which the present possessor claimed, and dismissed the parties. Ibid. 293. But see The Evangelistria, 46 L. J. Adm. 1 ; 35 L. T. 410 ; 25 W. E. 255 ; 3 Asp. 264, and Nos. 45 and 46 in tit. Mortgage, p. 1132. 23a. The plaintiff, a foreigner, pur- chased of the defendant one fourth share" of a ship. At the time of the purchase she was a British ship, but the defendant, a foreigner, subsequently procured a re- gister for her as a foreign ship. In a suit by the plaintiff for possession, the court, upon the foreign consul refusing to interfere, declined to entertain the suit, which was dismissed with costs, but not damages. The Agincourt, 2 P. D. 239 ; 47 L. J. Adm. 37. See also The Cosmopolite, 3 C. Eob. 533 ; The Thomas, 1 ibid. 322 ; The Fanny and Elmira, Ed- wards, 117, 120; The Countess of Lauder- dale, 4 C. Eob. 283 ; The Victoria, Ed- wards, 97 ; Dalgleish v. Hodgson, 5 M. & P. 407 ; 7 Bing. 495 ; Simpson v. Fogo, 1 Johns. & H. 18 ; 6 Jur. N.S. 949 ; 29 L. J. Ch. 657 ; 8 W. E. 407 ; Elias v. Black, 18 Court of Session Cases, 1225. [Scotch.] * (5) A proprietary suit will be entertained in case of a claim by British subjects, as the owners of a vessel found in England in the hands of foreigners. Dunlap's Adm. Prao. (2nd ed.) 47. [American.] OWNERS. Fart I. Title and Registration. 1183 24. The Court of Admiralty would not, even with the consent of the parties and of the accredited agent resident here of the country to which they belonged, en- tertain a cause of possession of a foreign ship between foreigners, as not being a case arising on the jus gentium, the muni- cipal regulations of different countries having modified and altered the general rule under the old civil law. Such a suit dismissed accordingly. The Johan and Siegmund, Edwards, 242. 25. Motion founded on an ex parte affi- davit of the owners for an order against an agent to bring in the ship's papers belonging to a foreign vessel rejected, the case not being an original cause of possession, in which the court would have the power to make an order for the pro- duction of the ship's papers as incidental to the cause. The Lusitano, 1 ~W. Eob. 166. 26. In a court of the law of nations (»'. e., a Prize Court), the 26 Geo. 3, c. 60, requiring the name of every owner to appear in the ship's register, and the established rule confining the claims of third parties, if British subjects, to regis- tered owners, held binding on British subjects only, and not to bar foreigners from preferring a claim against a bond fide owner whose name was not inserted in the ship's register. The Nostra Signora de los Dolores, 1 Dodson, 296. 27. A party actively and directly con- cerned in the purchase and outfit of the vessel, in the appointment of the master, and in the subsequent management of the vessel, whose name, however, was not in- serted in the ship's register, bill of sale, or letters of marque, held to have been a bond fide owner, and responsible as such to a foreigner. The representative of such owner accordingly held responsible for costs and damages decreed to the foreigner. Ibid. 28. The government formed during a revolution in Sicily, but not recognized in this country, seized upon the king's treasure, and remitted part of it to per- sons in this country, to purchase steam ships, and they applied the remittance accordingly. Held, that the king, who had re-established his authority, was en- titled to sue for one of the ships, which remained in the port of London, and that the persons who made the remittance were not necessary parties to the suit. Two Sicilies {King) v. Willcox, 1 Sim. N.S. 332; 14 Jur. 163; 19 L. J. Ch. 202. (c) As affected by Courts of Chancery. 29. Two part owners of a vessel having been appointed ship's husbands, and the other part owners wishing to dismiss them, the ship's husbands denied the right of the others so to do, and possessed themselves of some of the machinery of the ship, which was at an engineer's for repairs. The other part owners filed a bill, and moved for an injunction to re- strain the ship's husbands from inter- fering by detention of the machinery, and for a receiver of the machinery. On it appearing that a decree of possession could not be obtained in the Court of Admiralty by reason of the plaintiffs being in possession of the hull, or, at all events, could not be obtained in time to enable the vessel to fulfil her engage- ment; held, that the Court of Chancery had jurisdiction, upon motion, to appoint a receiver of the machinery, and to direct possession of it to be delivered to him. Brenan v Preston, 2 De G. M. & G. 813. 30. A vessel, the property of a bank- rupt, had been purchased by a person, who paid his deposit. By an agreement he was to pay over the residue on a cer- tain day to P., the solicitor to the as- signees of the bankrupt. On that day the greater portion of the money was paid over to P., and the vessel was de- livered to the purchaser ; but the bill of sale not being handed over to him, a small portion of the purchase-money was, at his request,, left unpaid. The vessel having been arrested in the Admiralty Court by the assignees, who refused to recognize the transaction ; held, upon bill filed and motion by the purchaser for in- junction and specific performance, that it was a proper case for the interference of the Court of Chancery. Hughes v. Morris, 14 L. T. 306. 31. Upon motion for decree, held, that the Court of Chancery could not interfere to put the purchaser into possession of the ship. Bill dismissed without costs. Ibid.; 9 Hare, 636 ; 16 Jur. 603 ; 26 L. J. Ch. 761 ; 2 De G. M. & G. 349. See The Virtue, 1 Spinks' Eccl. & Adm. Eep. 77. 32. A person applying under the 65th section of the Merchant Shipping Act, 1854, for an order prohibiting any deal- ing with a vessel, stands in the position of a plaintiff in a suit for specific per- formance, and must show that he is ready to carry out his part of the contract. Re Ship Isis, Ex parte Baker, 3 Asp. N.S. 52. 33. The petitioner agreed to purchase a barge from A., and had paid some in- 1184 OWNERS. Part I. Title and Registration. stalments of the purchase-money, when A. gave him notice that he had sold the barge to another person, to whom it must be given up. Order made to prohibit A. from dealing with the barge until a given day, upon the terms of the petitioner paying into court the instalments due, and giving security for the completion of the contract. Re Ship Isis, Ex parte Baker, 3 Asp. N.S. 52. 34. The plaintiff, an English subject, entered into an agreement abroad with the defendant, a foreigner, for the pur- chase of a ship. The defendant being out of the jurisdiction, but the ship being within it, and substituted service having been made on the master, the court de- creed specific performance, and restrained the removal of the vessel from England. Hart v. Herwig, L. E. 8 Oh. 860; 42 L. J. Oh. App. 457 ; 1 Asp. N.S. 572 ; 2 ib. 63. 35. As to the jurisdiction of Courts of Equity, in reference to unregistered titles, see cap. 4, p. 1207. 36. To take bail for the safe return of the ship on the application of part owners, see Pt. VIII. p. 1418. 37. As to bottomry, see tit. Bottomry, p. 105. 3. Vice-Admiralty Courts. 38i The matters in respect of which Vice-Admiralty Courts shall have juris- diction, are as follows .... (9) claims between the owners of any ship regis- tered in the possession in which the court is established, touching the owner- ship, possession, employment, or earn- ings of such ship. Vice- Admiralty Court Act, 1863 (c. 24), s. 10. * (6) The registration of British ships ap- pears to have been first introduced into this country by the Navigation Act, 12 Car. 2, c. 18. £7) The following were the Eegistry Acts prior to the M. S. Act, 1854 :— 7 & 8 Will. 3 c. 22 ; 26 Geo. 3, c. 60; 27 Geo. 3, c. 19; 34 Geo. 3, c. 68 ; 4 Geo. 4, c. 41 ; 6 Geo. 4 o. 110 ; 7 Geo. 4, c. 48 ; 3 & 4 Will. 4, c. 55 ; 8 & 9 Vict. c. 89 ; 12 & 13 Vict. c. 29; 16 & 17 Vict. c. 131. They are all now repealed. (8) As to the registration of ships belong- ing to British subjects -within the jurisdiction of her Majesty in China and Japan, see the China and Japan Maritime Order in Council 1874, in 2 Maude. & Pollock (4th ed. by Pollock & Brace), 89. (9) As to the registration of United States vessels, mode of measurement, and the record 39. Vice-Admiralty Courts abroad had prior to this act only the ordinary juris- diction exercised by the Court of Admi- ralty before the passing of the 3 & 4 Vict, c. 65. The Australia, Swabey, 480 ; 13 Moore, P. C. C. 132 ; The John, 2 Hagg. 305. 40. Proceeds of a ship and cargo sold abroad and transmitted from a Vice- Admiralty Court to the registry of the High Court of Admiralty, decreed on motion to be paid out to the respective consignees of the cargo, on the consent of the purchaser of the cargo. The Lady Banks, 1 Hagg. 306. "41. As to the jurisdiction of Vice- Admiralty Courts generally, see tit. JuKISDICTION, p. 686. 3. Registration of British Vessels. 1 . Generally.* 42. The ownership, measurement, and registry of British vessels are regulated by Part II. of the M. 8. Act, 1854 (c. 104), ss. 17 — 108; the M. S. Act Amendment Act, 1855 (c. 91), ss. 9—15; ibid. 1862 (c. 63), ss. 3 and 4; the M. S. Act, 1867 (c. 124), s. 9 ; the M. S. (Colonial), Act, 1869 (c. 1 1) ; the M. S. Act, 1871 (c. 110), ss. 5 and 6; ibid. 1872 (c. 73), ss. 3 and 4; ibid. 1873 (c. 85), ss. 3—6; and ibid. 1876 (c. 80), ss. 25—28, and 36—44. 43. The second part of the M. S. Act, 1854, applies to the whole of her Majesty's dominions. See the act, s. 17. But it does not affect 3 & 4 Vict. c. 56, which relates to East India ships. Ibid. s. 108 ; nor does it affect her Majesty's ships. Ibid. s. 4. of bills of sale, mortgages, &c, see Eevised statutes of U, S. ss. 4131— 4196. (10) As to granting clearances and entry of clearance of vessels, form of manifest, &o„ Ibid. ss. 4197—4218. (11) As to tonnage duties, Ibid. ss. 4219 —4227. (12) As to discriminating duties, Ibid. ss. 4228—4232. «.^i9 -F 01 P rovisio ns as to the inspection of the boilers of steamers, licences of officers, &c, and carriage of merchandize, Ibid. ss. 4399—4500. (14) For provisions as to the appointment and. duties of shipping commissioners, Ibid. ss. 4o01— 4508. .(15) As to the fees of shipping commis- sioners, Ibid. ss. 4592—4595. OWNERS. Part I. Title and Registration. 1185 44. As to the construction of the fol- lowing terms of the act, " her Majesty's dominions," " British dominions," "Bri- tish possession," "the United Kingdom," " Consular officer," and " Ship," see Ibid. s. 2. 45. Every application for the registry of a ship shall in the case of individuals be made by the person requiring to be registered as owner, or one or more of (heni). of his or their duly- authorized agent, and in the' case of bodies corporate by their duly- authorized agent ; the authority of such agent, of individuals, to be testified by writing under the hands of the appointors, and of a body corporate under its corporate seal. Ibid. s. 35. 46. Before registry, the ship shall be surveyed by a person duly appointed ; and such surveyor shall -grant a certifi- cate in the. form marked A. in the schedule; the certificate shall be delivered to the registrar before registry. Ibid. s. 36. 47. The following rules shall be ob- served with respect to entries in the re- gister book : — (1) The property in a ship shall be di- vided into sixty-four shares. See M. 8. Act, 1854, s. 37. (2) Subject to the provisions with re- spect to joint owners or owners by transmission, not more than sixty- four individuals shall be entitled to be registered at the same time as owners of any one ship ; but this rule shall not affect the beneficial title of any number of persons or of any com- pany represented by or claiming under or through any registered owner or joint owner. See the M. S. Act Amendment Act, 1880 (c. 18), s. 2, repealing sub-s. 2 of s. 37 of the M. S. Act, 1854. (3) No person shall be -entitled to be re- gistered as owner of any fractional part of a share in a ship ; but any number of persons, not exceeding five, may be registered as joint owners of a ship or of a share there- in. See M. S. Act, 1854, s. 37. (4) Joint owners shall be considered as constituting one person only as re- gards the last rule, and shall not be entitled to dispose in severalty of any interest in any ship or in any share therein in respect of which they are registered. Ibid- (5) A body corporate may be registered as owner by its corporate name. Rid. 48. As soon as the requisites to the due registry of a ship have been complied with, the registrar shall enter in the register book the following particulars :- (1) the name of the ship and of the port to which she belongs ; (2) the details as to her tonnage, build, and description comprised in the certificate hereinbefore directed to be given by the surveyor; (3) the several particulars as to her origin stated in the declaration or declarations of ownership; (4) the names and de- scriptions of her registered owner or owners, and if there is more than one such owner, the proportions in which they are interested in such ship. Ibid. s. 42. 49. Of the documents required to be Eroduced to the registrar, he retains in is possession the surveyor's and builder's certificates, the copy of the condemnation, and all declarations of ownership. Ibid. s. 61. 50. Shares in ships registered under the M. S. Act, 1854, are deemed to be included in the word " stock," as defined by the Trustee Act, 1850, which is appli- cable to such shares accordingly. See the M. S. Act Amendment Act, 1855 (c. 91), s. 10. 51. No notice of any trust, express, implied, or constructive, shall be entered in the register book, or receivable by the registrar; and, subject to any rights and powers appearing by the register book to be vested in any other party, the regis- tered owner of any ship or share therein shall have power absolutely to dispose in manner therein mentioned of such ship or share, and to give effectual receipts for any money paid or advanced by way of consideration. See M. S. Act, 1854, s. 43. 52. A vessel registered by the owner as The City of Bruxelles, was registered by the mortgagee as The City of Brussels. The identity being established, held, that the misdescription did not affect the validity of the registration by the mort- gagee. Bell v. Bank of London, 3 H. & N. 730; 28 L. J. Exch. 116. 53. The Court of Chancery cannot en- tertain the question whether a ship was properly registered, but must take the registration as conclusive. Coombs v. Mansfield, 3 Drew. 193; 1 Jur. N.S. 270. 54. Any document required by this act to be executed in the presence of or" to be attested by any witness or witnesses, may be proved by the evidence of any person able to bear witness to the requi- site facts, without calling any one of the 1186 OWNERS. Part I. Title and Registration. attesting witnesses. See M. S. Act, 1854, s. 526. 55. A ship built to be sold to a fo- reigner, and delivered at a foreign port, was assigned by the builder to the plain- tiff for valuable consideration, under an agreement not in the form of a M. S. Act bill of sale. The assignment was not re- gistered, either under the M. S. Act, 1854, or the Bills of Sale Act, 1854. At the time of the assignment the ship had been completely built and tried. Held, that the ship was not a British ship within the meaning of the M. S. Act, 1854, and that an assignment of her need not be by bill of sale, nor registered under that statute. Held, also, that an assignment of her fell within the proviso in the Bills of Sale Act, 1854, s. 7, which exempts assignments of a ship from the operation of that statute. Union Bank of London v. Lenanton, 3 0. P. D. 243. 56. A vessel being launched must be registered as a British ship at the time of such launch, in order to enjoy the privi- leges of a British ship in an action of damage by collision arising therefrom. The Andalusian, 3 P. D. 182. 56a. Section 2 of the M. S. Act, 1854, does not limit the meaning of the word "ship," but enlarges it. The Mac, 7 P. D. (0. A.) 126 ; 51 L. J. P. D. 81 ; 4 Asp. 555 ; Ex parte Ferguson, L. E. 6 Q. B. 280. 565. A hopper barge used for dredg- . ing, with no means of propulsion within itself, held, to be a "ship" within the meaning of the M. S. Act, 1854. The Mac, supra. 56c. A fishing coble of ten tons burden and decked forward only, but which went twenty or thirty miles to sea almost en- tirely with sails, although she was capable of being propelled by oars, held, to be a " ship" within the meaning of the M. S. Acts, 1854 and 1862. Ex parte Ferguson, supra. 57. Semble, where a ship is owned by an English limited company, which, for the purpose of carrying on business in a foreign country, is registered in that country as a foreign company, and the ship is also registered there, the ship is nevertheless a British ship, and although not having a British registry, is subject * (16) For various forms relating to the ownership, registry, sale, and mortgage of British ships, issued, by the Commissioners of Customs and approved of by the Board of to all the liabilities of a British ship. Chartered Mercantile Bank of India, Sfc. v. Netherlands India Steam Navigation Co. Limited, 9 Q. B. D. 118 ; 10 Q.B.D. 521 ; 4 Asp. 523 ; 5 Asp. 65 ; 46 L. T. N.S. 530 ; 48 L. T. N.8. 546. 58. An Order in Council purporting to be made in pursuance of sect. 60 of the M. S. Act, 1862, is valid, notwithstanding that it recites that the British rules as to measurement have been adopted .... "with the exception of a slight difference in the mode of estimating the allowance of engine-room." The Franconia, 3 P. D. (0. A.) 164; 4 Asp. 1. 59. As to evidence of registers and certificates of registry, see tit. Evidence, c. 16, s. 12, p. 440, and ibid, in Addenda. 2. Forms.* 60. For provisions requiring the Com- missioners of Customs to cause the several forms required by the second part of this act, and contained in the schedule there- to, to be supplied to all registrars for distribution to the persons requiring the same, free or at such prices as they may direct, and with the consent of the Board of Trade to make alterations therein after public notice ; and to give instructions as to anything to be done in pursuance of this part of the act ; see M. S. Act, 1854 (c. 104), s. 96. 61. If any bill of sale, mortgage, or other instrument for the disposal or trans- fer of any ship or share or interest therein is made in any form or contains particu- lars other than the form and particulars prescribed in pursuance of the M. S. Act, 1854, no registrar can be required to re- cord the same without the direction of the Commissioners of Customs. Ibid. 1855 (c. 91), s. 11. 3. Fees.f (a) Generally. 62. For provisions as to the application of the fees taken under the second part of this act (»'. e., as to British ships, their ownership, measurement, and registry), see Ibid. 1854 (c. 104), s. 95. See cap. 6 C°) Of Surveyors, Trade see 2 Maude & Pollock (4th ed. by In * % 5 ruce }' pp ' cct =lxxii-ccclxxxviii. t (16a) For the fees to be charged under Pt. It of the Act of 1854, seethe scheduk to OWNERS. Parti. Title and Registration. 1187 4. Under Indian Registry Acts. 63. The acts relating to the registry of Indian ships are the 3 & 4 Vict. c. 56, repealed as to ss. 1 to 7 by Statute Law Eevision Act, 1874, No. 2, and the Indian Act, No. X. of 1841 ; Act XL of 1850 ; and Act IV. of 1875, s. 30. 64. Nothing in the M. S. Act, 1854, is to repeal or affect the act of 3 & 4 Vict, c. 56, regulating the trade of ships built and trading within the limits of the East India Company's charter. See M. S. Act, 1854, s. 108. 65. No ships shall be deemed British after the passing of the act, unless regis- tered in accordance therewith, and a certificate of registry granted, and on the back of such certificate shall be specified the names of the owners and the amount of shares held by them. See Indian Act X. of 1841, s. 1. 66. The ports at which such registra- tion shall be made shall be the ports of Cal- cutta, Madras, Bombay, Singapore, and such ports as the local governments shall declare to be registering ports within the act. Ibid. s. 2. 67. Rangoon and Akyab have been declared under this section. See Calcutta Gazette for 1854, p. 848; for 1856, p. 1549. 67a. So Kyook Phyoo, Bassien, Tavoy and Mergin. See Gazette of India, Feb. 11, 1871, Pt.I. p. 75. 68. But ships, not built at any of such ports, shall be allowed one voyage thereto for the purpose of being registered. In- dian Act of 1841, s. 2. 69. A book of registry is to be kept, and a declaration made before registra- tion. Ibid. ss. 4 and 5. 70. And a measurement of the vessel made upon inspection before registration. Ibid. s. 7. 71. For the rules of measurement, Ibid. ss. 8, 9 and 10. 72. For the rules of measurement of laden vessels, Ibid. s. 1 1 . 73. The amount of the registered ton- nage is to be cut on the main beam of the vessel. Ibid. s. 12. 74. Sect. 15 prescribes penalties for the fraudulent use of the certificate of regis- try. A change of master, whenever such occurs, shall be indorsed on the certifi- cate. Ibid. s. 16. 75. As to painting the name of the ship on the stern, Ibid. s. 17. 76. A certificate of the builder is to be produced to the registrar before he grants a certificate of registration. Ibid. s. 18. 77. Sect. 19 provides for the loss of the certificate, or its being mislaid. Sect. 20 provides for the recovery of the certifi- cate when unlawfully detained by any person contrary to the purpose for which, it was granted ; *. e. the navigation of the ship. Upon any alteration in the ship, she is to be registered de novo. Ibid. s. 21 . 78. The oath or declaration of the registrar is to be admitted as evidence. Ibid. s. 22. 79. For provisions for the acquisition of a British registry by ships owned by a native prince or state, or any subject of a native prince or state, when commanded by British officers, Ibid. s. 24. As to measurement for the purpose of ascer- taining port dues, see Act XII. of 1875, ss. 50, 51, 61. See also 4 Geo. 4, c. 50. 80. A ship built in a foreign port in India in 1817, within the limits of the company's charter, by foreigners, and which sailed under foreign flags until 1838, when it was owned by, and had ever since belonged to, British subjects resident at Bombay, held, entitled under acts done in pursuance of the powers granted by 3 & 4 Vict. c. 56, to be regis- tered at Bombay as a British ship, for the purposes of trade, within the limits of the charter. Crawford v. Spooner, 6 Moore, P. C. C. 1. 5. In British Possessions.* 81. As to the powers given to the legislative authority of any British pos- session, by act or ordinance, confirmed by her Majesty in Council, to repeal any provisions of this act relating to ships registered in such possession, see the M. S. Act, 1854, s. 547. 82. Canada is to be deemed a British the act. Pt. I. containing the tables of fees (2 Maude &Pollock (4th ed. by Pollock & Bruce), p. 160), amended pursuant to the act by the scale of fees sanctioned by the Board of Trade, for which see 2 Maude & Pollock, pp. 391, 393, and pp. 484—486. * (166) For provisions appointing the port of Shanghai, in China, a port of registry, and regulating the registration of British ships thereat, see the China and Japan Order in Council of 6 Aug. 1874, in 2 Maude & Pollock on Merchant Shipping, 4th ed. by Pollock & Bruce, p. 88. (16c) For the same appointing the master- attendant at Singapore, and the harbour- masters of Penang and Malacca, registrars of British ships in the Straits Settlements, see Order in Council of 9 July, 1869. 1188 OWNERS. Part I. Title and Registration. possession ■within the meaning of the M. 8. Act, 1854, and of the acts amend- ing the same. See the Merchant Ship- ping Colonial Act, 1869 (c. 11), s. 6. ' 83. It shall be lawful for her Majesty, by Order in Council, from time to time to declare, with respect to British posses- sions mentioned in the order, the descrip- tion of persons who are to be registrars of British ships in that possession, and to revoke any order so made. See' Hid. s. 6. 83a. See also as to terminable certificates of registry in British possessions, The Co- lonial Shipping Act, 1868 (c. 129), s. 1. 6. Measurement. (a) Generally.* 84. The duties imposed upon the Com- missioners of Customs with respect to the *(17) See, for an examination of the existing law and for suggested improvements therein, the Beport of the Eoyal Commission on Ton- nage, Sess. Papers, Ho. Co. 1881, No. 1188. (17a) The following deductions or al- lowances are to be made in measuring tonnage : (a) Any closed-in space or spaces solely appropriated to or fitted with machinery, and the wheel-house for sheltering the man or men at the wheel, if not larger than required for such purposes. See Board of Trade Instructions to Measur- ing Surveyors under the M. S. Acts, M. 16845—1883, s. 3, p. 6. (b) Any erection on the upper-decks of vessels fitted for the shelter of deck passengers on short voyages to protect them from the weather. This exception, however, is only permissible by special directions from the Board of Trade. (c) The cook-house and condenser space, if of no greater extent than is required for the cOok, and for the engineer when employed in condensing water. (d) Water-closets or privies to a reason- able extent for the ofiicers and crew, and an additional one in the case of passen- ger ships for every 50 persons : not more than 12, however, in all to be allowed. (f) Crew spaces. • (g) In the case of steam vessels the space occupied, and occupied solely by the pro- pelling power— the gross tonnage of the hold having been previously ascer- tained. Ibid. s. 4, p.- 7. (18) See further as to mode of measuring engine-room, Ibid. ss. 5 — 7, pp. 8, 9. - (19) The circumstances under which Eules I. and II. for determining tonnage are to be respectively applied are as follows : All ships requiring measurement, whether for the purpose of registry or for payment of dues, or for any purpose whatever, are to be measured by Bule I. except under the follow- ing circumstances — (a) New ships requiring registry under circumstances rendering the application of Rule I. inapplicable, maybe measured by Eule n. But the measuring sur- veyors are in all such cases to obtain direct authority from the Board of Trade. (b) Foreign ships having cargo on board, or whose holds are so lumbered with stores, dunnage, or ballast, or so fitted with bulkheads or cabins as to prevent the required measurements being taken, may be measured under Eule II. (c) Ships whose tonnage is already regis- tered according to any former act, but whose owners desire to have them re- measured under the Act of 1854, may, if the holds are so obstructed by bulk-? heads or cabins or other features as to render Eule I. inapplicable, be measured by Eule II., if the owners so desire. Ships measured by Eule II. may at any subsequent period be measured by Eule I. on the application of the owner and payment of the proper feesv . See Board of Trade In- structions to Measuring Surveyors under the M. S. Acts, M. 16845—1883, s. 2, p. 5. (20) For practical directions to the sur- veyors to be observed in the operation of measuring under Eule I., see Ibid. ss. 7 — 22, pp. 9—23. (21) And under Eule H. see Ibid. ss. 23 — 24, pp. 24—26; calculation under Eule II. and for table of, see Ibid: ss. 27 — 29.. (22) As to International tonnage: By Orders in Council ships of the undermen- tioned countries having certificates of registry or other national papers, dated on and after the dates following, are no longer required to be remeasured in any port or place in her Majesty's dominions, but are deemed to be of the tonnage denoted in such certificates of registry or other national papers : — Countries. Date of adoption of British Rules, United States Denmark Austria-Hungary Germany* France Italy* Spain* Sweden Netherlands* ..... Norway* Greece* Russia* Finland Hayti 1st Jan., 1865 1st Oct., 1867 1st Sept., 1871 1st Jan., 1873 1st June, 1878 1st July, 1873 2nd Dec, 1874 1st April, 1875 1st Jan., 1876 1st April, 1876 1st July, 1878 20th Deo., 1879 1st June, 1877 26th Jan., 1882 Date of Order in Council. ( 80th July, 1868. I 19th March, 1883. ( 29th Feb., 1868. \ 30th Dec, 1878. 1 29th April, 1883. 19th Aug., 1871. 26th June, 1873. Bth May, 1873. ( 30th Sept., 1873. ) 14th Feb., 1883. 17th March, 1875. j 17th March, 1875. I 18th Aug., 1882. 26th Oct., 1876. 17th May, 1876. 14th Aug., 1879. 20th Nov., 1880. 20th Nov., 1880. 3rd May, 1882. * The amount of deduction for propelling power being different in these countries in re- speot of steamers, option is granted to the mas- ters of steamships of such countries whereby- OWNERS. Part I. Title and Registration. 1189 measurement of ships, by sects. 23, 27, 28 and 29 of the M. S. Act, 1854, are transferred to the Board of Trade by the M. 8. Act, 1872 (c. 73), s. 3. 85. The Board of Trade may make modifications and alterations from time to time in the rules for measurement of tonnage. See M. 8. Act, 1854 (c. 104), s. 29, as amended by M. 8. Act, 1872 (c. 73), s. 3. 86. In the rules for measurement of tonnage, the tonnage deck is to be taken to be the upper deck in ships which have less than three decks, and to be the second deck from below in other ships. All measurements are taken in feet and fractions of feet, fractions of feet being expressed in decimals. See the M. 8. Act, 1854 (c. 104), s. 20. 87. The tonnage of every ship to be registered, with the exceptions mentioned in the next section ; and the tonnage of every ship to which such rule can be applied, whether about to be registered or not, is to be ascertained according to the measurements, deductions and divi- sions in rule 1 and the table therein set forth as to transverse areas, computation from areas, poop and other closed-in space, and cases of two or more decks. Ibid. s. 21. 88. For provisions for the measurement of ships having two or more decks, Ibid. s. 21, sub-s. 5. 89. As to the measurement, under rule 2, of ships which require to be measured for any purpose other than registry, and have cargo on board ; and of ships which require to be measured for registry and cannot be measured under rule 1, Ibid. s. 22. 90. As to the measurement, under rule 2, by length, breadth and girth, and the mode of measurement thereunder of poop and other closed-in spaces on upper deck, Ibid, sub-ss. 1 and 2. 91. For provisions as to the measure- ment of a Dreak, poop or other perma- nent closed-in space on the upper deck available for cargo or stores, or for the berthing or accommodation of passengers under rules 1 and 2, Ibid. s. 21, sub-s. 4 ; and s. 22, sub-s. 2. 92. For the mode of measurement to ascertain the tonnage of open ships, Ibid. s. 24. 93, In every steamer or ship requiring engine-room an allowance is to be made for the space occupied by the propelling power, and the amount so allowed de r ducted from the gross tonnage of the ship, and the remainder is to be deemed her registered tonnage. For the mode of estimating and measuring the allow- ance of such space generally, and of the shaft trunk of screw steamers, and when there are separate compartments, see the M. S. Act, 1854 (c. 104), s. 23, as amended by M. 8. Act, 1872 (c. 73), s. 3. 94.' For the calculation of the deduction from tonnage of the space necessary for the proper working of the boilers and machinery in paddle and screw steamers, and the mode of measurement thereof generally, and when the space is un- usually large or small, Ibid. 95. For the measurement of steamers in which the engines and boilers are fitted in a separate compartment, and for the measurement of the shaft trunks of screw steamers, Ibid. s. 23, sub-ss. 2 and 3. 96. If any alteration is made in the length or capacity of the space allowed for the propelling power, or any cabins are fitted up in such space, the ship is to be deemed a ship not registered until re- measured. Ibid. s. 23, sub-S. 4. 97. If in any ship in which this space is, measured any goods or stores are stowed or carried, penalty against master and owner not exceeding £100. Ibid. s. 23, sub-s. 5. 98. When the tonnage of a ship has been ascertained, and registered in ac- cordance with this act, the same is thence- forth to be deemed her tonnage, and to be repeated in every subsequent registry, unless any alteration is made in the form or capacity of the ship, or unless it is dis- covered that the tonnage has been erro- neously computed, in either of which cases she must be re-measured. Ibid. s. 26. 99. Semble, it is immaterial, if the provisions of sect. 9 of the M. S. Act, 1867, are complied with, whether the space in question is In "a break or poop, or any other permanent closed-in space on the upper deck available for the such masters may elect to have the engine-room re-measured under the rules of allowance for engine-room relating to British ships, and de- duction made accordingly. A copy of the certi- ficate of tonnage furnished to the master in such cases is to be sent to the principal surveyor for tonnage, with a note thereon of the measurement of engine-room and the amount of deduction under the foreign rules. See Board of Trade Instructions to Measuring Surveyors under the M. S. Acts, M. 16845—1883, s. 34, p. 37. 1190 OWNERS. Part I. Title and Registration. berthing of the crew" (see sect. 21 (4) M. S. Act, 1854 (c. 104) ), or is a portion of the space between the spar deck and tonnage deck (see sect. 21 (5) of the same Act, 1854). The Franconia, 3 P. D. (C. A.> 164; 4 Asp. 1. 100. A "spar deck" within the meaning of sub-div. 5 of sect. 21 of 17 & 18 Vict. c. 104, is a continuous deck from stem to stern, fastened down and water-tight, and making the space beneath fit for the stowage of cargo like a hold. Per Cairns, C, Leith, Hull fy Hamburg Steam Packet Co. v. Lord Advocate, Court of Sess. Cas. 3rd Series, vol. 2, p. 597. [Scotch.] 101 . Over the main deck of a ship there was a covering or awning, open at the sides, and unfit for the carriage of cargo, passengers or crew. Held (affirming the decision appealed from), that tonnage was not chargeable thereon as a third deck. Lord Advocate v. The Clyde Steam Navigation Co., 2 H. L. 409. [Scotch.] 102. Per Lord O'Hagan : The mea- surement of the ship's tonnage should be in accordance with her carrying capacity. Ibid. (b) Allowance for Crew Spaces. (aa) Generally.* 103. So much of the third part of this act aa relates to the provisions, health, * (23) As the M. S. Act, 1867, s. 9, makes no mention of the one-twentieth reduction referred to in sub-s. 4 of s. 21 of the M. S. Act, 1854, hut directs a deduction from the registered tonnage for crew spaces, meeting the requirements of s. 9, this restriction of the M. S. Act, 1854, no longer applies. -See Board of Trade Instructions, 1884, aB to survey of passenger accommodation, crew spaces, &c, par. 32. (24) Provided that the surveyor certifies that the provisions of the latter act in regard to such places are complied with. Ibid. (25) For the practical instructions to sur- veyors as to the measurement of crew spaces, on board merchant ships under M. S. Act, 1867, the meaning of the expressions "ship " and "seamen," " entire contents," "height" and " floor area of crew spaces," the deduc- tion thereof from the tonnage, see Ibid. pars. 30, 31, 43, 49, 52, 54—56, 64, and 66. (26) All crew spaces situated above the upper deck of vessels measured under the Act of 1854, and registered before the Act of 1867 came into operation, were (to the extent of one-twentieth of the vessel's remaining tonnage) excluded from the registered ton- nage, and surveyors will, therefore, not now give the certificate headed " Surveys 61," and accommodation of seamen applies to all ships registered in any of her Ma- jesty's dominions abroad, when out of the jurisdiction of their respective go- vernments, and to their owners, masters, and crews. See M. S. Act, 1854 (c. 104), s. 109. 103a. For provisions as to themeasur- ment for tonnage under rules 1 and 2 of a break, a poop, or other permanent closed-in space on the upper deck, avail- able for cargo or stores, or further berthing or accommodation of passen- gers or crew, and providing that nothing shall be added for a closed-in space solely appropriated to the berthing of the crew, unless such space exceeds one-twentieth of the tonnage of the ship ascertained as therein mentioned, and then only the ex- cess beyond that proportion, Ibid. s. 21, sub-s. 4 ; and s. 22, sub-s. 2. But see M. S. Act, 1867 (c. 124), s. 9. 104. Every place in any ship occupied by seamen or apprentices, and appro- priated to their use, shall have for every seaman or apprentice a space of not less than seventy-two cubic feet, and twelve superficial feet, measured on the deck or floor. M. S. Act, 1867 (c. 124), s. 9, sub-s. 1. 104a. A vessel had a covering or deck above the tonnage or main deck. In this covering were two gaps made right across the vessel 13 and 8 feet broad respec- authorizing an allowance to be granted for such spaces, which have been already allowed. In order to prevent such allowances from being obtained, instructions have been given to the Kegistrar of Shipping that, before any deduction on account of crew space situate above the upper deck is made from the ves- sel's tonnage, such crew spaces are to be measured by the surveyor, and included in or added to the existing tonnage. Ibid. par. 64. (27) As to the mode of calculation of the tonnage allowance on account of crew spaces and of the amount of deduction, see Ibid. pars. 66 and 67. (28) As to the rules for computing the superficial area of the deck or floor, the ex- clusion from "crew space" of spaces not available for the proper accommodation of the crew who are to occupy them, the rule for computing the cubic capacity, the al- lowance of spaces for petty officers, ap- prentices, firemen and coal trimmers' berths, see Ibid. pars. 54—58. (29) As to the allowance as crew space of parts used by master and officers, and the proper apportioning of the same, see Ibid. pars. 43 f . and g. and 57. OWNERS. Part I. Title and Registration. 1191 tively. These gaps-were able to be enclosed by planks and side doors, which, however, were not water-tight. Held (affirming the judgment of the Court of Session), that the vessel had not a permanent closed-in space on the upper deck avail- able for cargo or sfores, or for the berth- ing or accommodation of passengers or crew within the meaning of sub-division 4 of that section. Lord Advocate v. Clyde Steam Navigation Co., Court of Sess. Cas. 3rd Series, vol. 2, 440 ; 4th Series, vol. 2, 23 ; 2 L. E. H. L. (Sc.) 409 ; 2 Asp. N.S. 502; 32 L. T. 287. 1045. A space between the main deck and an upper deck, which latter deck extended from the forecastle to the bridge, was partly closed in aft by a round house, on either side of which, however, there were open passages, and through these passages the water could always flow. Water-ports, mooring-bits, scuppers, and a pump, were all within this space. Held, that this space was not a "permanent closed-in space" within the meaning «of sub-division 4 of sect. 21ofl7&18 Vict. c. 104. Leith, Hull and Hamburg Steam Packet Co. v. Lord Advocate, Court of Sess. Cas. 3rd Series, vol. 2, p. 597. [Scotch.] (bb) In British Possessions Abroad. 105. The governor of any British pos- session abroad may from time to time appoint fit and proper persons to be sur- veyors, who shall have and exercise with- in such possession all the powers with respect to the inspection of crew spaces conferred upon the Board of Trade sur- veyors in the United Kingdom, by sect. 9 of the M. S. Act, 1867. See the Colonial Shipping Act, 1868 (c. 129), s. 3. •(cc) Foreign Ships.* (dd) Construction and Lighting. 106. Every such place shall be such as to make space available for the proper accommodation of the men, securely constructed, properly lighted, ventilated, protected from weather and sea, and as far as practicable properly shut off and protected from effluvium of cargo or bilge water. Ibid. s. 9, sub-s. 2. And see Board of Trade Instructions as to Survey of Passenger Accommodation, Crew, Space, Lights, &c. 1884, pp. 31—35, pars. 45— 52. (ee) Free from Cargo. 106a. Every such place shall be kept free from stores or goods of any kind, not being the personal property of the crew in use during the voyage. See M. S. Act, 1867 (c. 124), s. 9, sub-s. 6. 1066. If any such place is not kept free from goods and stores, the master shall be deemed to be in fault, and shall, for every such failure, pay to each seaman lodged there one shilling a day for each day after complaint made to him by any two or more of the seamen. Ibid. sub-s. 8, and Board of Trade Instructions as to Survey of Passenger Accommoda- tion, Lights, &c. 1884, par. 24. (ff) Galleys.] (gg) Privies.% 107. No crew space shall be deemed such as to authorize a deduction from * (29a) When surveyors are called in to inspect the crew space of foreign ships, they proceed in the same manner as with British ships. See Board of Trade Instructions as to Survey of Passenger Accommodation, Crew Spaces, Lights, &c. 1884, par. 44. t (296) Galleys, wherever situated are not deducted as crew space, but if the crew space and galley are contiguous, the bulkhead must he doubled, with felt between the doubling and the bulkhead. Ibid. par. 43 (g). t (30) If the owner of a ship wishes to claim a deduction from the registered ton- nage of his ship, on account of any places provided for the berthing and accommoda- tion of seamen and apprentices, and solely appropriated to their use, he must, besides proving that the provisions of the act as to cubic and superficial space, fitting, lighting, and ventilating, therein referred to, are com- plied with, provide one or more permanently fixed privy or privies for the use of the crew, of such construction as may be approved by the surveyor. Ibid. par. 37, and par. 41. See as to the proper construction and num- ber of privies, Ibid. par. 52. (30a) Deductions for crew space are not to be allowed in the case of vessels having an iron deck over this space, unless a wooden deck is laid on top of it, or unless the under- side of- the deck over the sleeping berths in the forecastle or crew space is sheathed or ceiled with wood. In the case of vessels in which deductions for crew space have already been allowed, the crew space must be in- spected as opportunity arises, and the deduc- tion disallowed if this instruction be not complied with. Ibid. par. 37a. 1192 OWNERS. Part I. Title and Registration. registered tonnage, unless there are one or more properly-constructed privies for the use of the crew, of such numher and of such construction as may he approved by the surveyor. See M. S. Act, 1867, 8. 9, sub-s. 3. (hh) Marking.* 108. No such deduction from tonnage shall be authorized unless there is per- manently cut in a beam, and cut -in or painted on or over the doorway or hatch- way of every such place, the number of men it is constructed to accommodate. Ibid. s. 9, sub-s, 5. (ii) Inspection.^ 109. Every such place occupied by seamen shall, whenever the ship is regis- * (31) He must also, to entitle him to the allowance, have the number of seamen the place is certified to accommodate cut in a team, and cut in or painted on or over the doorway or hatchway „of the place. See Board of Trade Instructions, &c, 1883, par. 37. (32) In .case of deck-house with cased beams, the cutting may be on the beam easing instead of the beam itself. Ibid. par. 68. (33) It is left to the owner's option whether the crew spaces certified for shall be cut in or painted on or over the door or hatchway leading thereto, but it must be always cut in the beam in the inside of such space. Ibid. t (34) Whenever a ship, not being em- ployed exclusively in fishing on the coasts of the United Kingdom, a pleasure yacht, or a barge employed upon a river, is to be regis- tered or re-registered in the United King- dom, the crew spaces must be inspected, and if the inspection is in all respects satisfactory, the surveyor will grant a certificate autho- rizing the proper deduction for crew space, and the ship will be registered with that deduction. Ibid. par. 43. (34a) Even though an owner does not desire to claim any deduction from the re- gistered tonnage of his ship on account of crew spaces, the crew spaces must neverthe- less be of the size and construction required by the 9th section of the M. S. Act, 1867. Ibid. par. 33. (346) The M. S. Act, 1867, is not, how- ever, an enactment intended to regulate or interfere with the manning of merchant ships ; therefore it is not for the surveyor to say how many men ought to be accommo- dated on board any particular ship or any particular classes of ships. That is a matter to be arranged entirely between the owner as an employer, and the crew as the persons he employs to navigate and work his ship. Ibid. par. 39. (34c) On the one hand it is incumbent on the shipowner to man his ship properly, and on the other it is left to any seaman to refuse to engage to serve on board a ship if he thinks that the number of hands proposed to be engaged by the owner or master to form the crew is not sufficient for the ship or ser- vice. The proper complement to form the crew, and therefore the proper amount of accommodation to be provided for the crew are matters that must rest between, and be settled by, the owner and his servants. With these points the Legislature has not interfered and the surveyors have nothing to do, and no surveyor should give any opinion thereon. Ibid. par. 40. (34d) If the inspection is not satisfactory, the surveyor will not give his certificate that the provisions of the M. S. Act, 1867, have been complied with in that respect, but the ship can be registered without any allowance on account of crew space, provided the sur- veyor gives bis certificate that he has in- spected the crew spaces; but whether the allowance is or is not certified for and granted, the provisions of the act as regards crew spaces must be complied with (except pars. 3 and 5 of sect. 9, as to privies and marking, when the deductions are not al- lowed for), and the owners and master are liable to penalties for default. Ibid. par. 43. (34e) After inspection of crew spaces, whether expenses have been incurred or not, the proper form, stating in what respects the act has not been complied with, must be forwarded by the surveyor to the Board of Trade immediately on its receipt from the Superintendent of the Mercantile Marine Office. Ibid. par. 60. (34/) If the owner does not claim any de- duction from the registered tonnage of his ship on account of crew spaces, pars. 3 and 5 of sect. 9 of the Act of 1867, as to privies and marking need not be complied with, and the surveyor, after the usual inspection, fills up Div. A. of the form "Surveys 70," and sends it to the owners. On this form being returned to the surveyor by the Superinten- dent of the Mercantile Marine Office, the surveyor issues his certificate in the form headed "Surveys 62," which is sent to the Collector of Customs and Registrar of Shipping in the same manner as the certifi- cate of compliance, headed "Surveys 61," is sent. The report made to the Board of Trade in form " Surveys 70 " will show in what respect the act has not been complied with, and the Board of Trade will then insti- tute such proceedings for the recovery of penalties as they may think fit. Ibid. par. 65. (35) The surveyor records his measure- ment and calculations on the inspection OWNERS. Part I. Title and Registration. 1193 inspected by one of the surveyors ap- pointed by the Board of Trade, who shall, if satisfied therewith, give the collector of customs a certificate to that effect, and thereupon such space shall be deducted from the register tonnage. Ibid. s. 9, sub-s. 4. (kk) Liabilities of Owner or Master in fault. 110. If in any other respect the pro- visions of this section are not observed with respect to any such place occupied by seamen, the owner shall be deemed to be in fault. Penalty for every breach not exceeding £20. Ibid. s. 9, sub-s. 9. (c) Disallowance of Crew Spaces.* 111. Upon any complaint concerning any such place occupied by seamen, one of the Board of Trade surveyors may in- spect such place, and if he finds that any of these provisions are not complied with, he reports the same to the collector of customs at the port where the ship is registered ; and thereupon the registered tonnage shall be altered, and the deduc- tion in respect of space disallowed until it ' is certified by such or some other Board of Trade surveyor that the provisions of the act in respect of such place are fully complied with. Ibid. s. 9, sub-s. 7. (d) Tonnage Rules and Dues. Ilia. The Board of Trade may make such modifications or alterations as may form headed " Surveys 64," retaining his own note of measurement and calculations, he forwards a summary of these on the form headed " Surveys 63," to the Principal Sur- veyor of Tonnage, 13, Downing Street, Lon- don. Ibid, par. 59. (36) The memorandum forms of inspection headed "Surveys 64," and other survey forms, may be obtained from the Superin- tendent of the Mercantile Marine Office of a port. Ibid. par. 69. (37) All the forms headed "Surveys 63" are sent to the office of the Principal Sur- veyor of Tonnage for the calculations to be checked, and in order that any practical question as to construction, fitting, ventila- tion, &c, may be attended to. A copy of these documents is kept in the office-book, and any information the Principal Surveyor of Tonnage requires is immediately supplied to him by the surveyor. Ibid. par. 60. (38) In case of a difference between the surveyor and the owner, agent, master or builder, the surveyor forwards to one of the assistant secretaries of the Board of Trade a statement of the facts, and takes the direc- tions of the Board thereon. Ibid. par. 41. (39) After the surveyor has inspected the crew space, and made a note of any defects or additions requiring to be remedied or made, he sends a list of the same to the owner, agent, master or builder, on the form headed "Surveys 70." On receiving back this form in the regular manner, he again inspects the vessel, and if all defects are made good proceeds to measure the space according to the rules. Ibid. par. 53. (40) When the surveyor is satisfied that the crew spaces are in all respects such as are required by the M. S. Act, 1867, s. 9, including proper privies and the cutting in the beam, and the cutting or painting on or over the doorway of the number of men who can be accommodated in such crewspaces.he gives to the collector of customs at the port where the p. vessel is registered a certificate to that effect, and thereupon the aggregate tonnage of such spaces, being the quotient obtained by divid- ing the total entire capacity by 100, as de- ducted by the registrar from the registered tonnage. Ibid. par. 63. (41) The tonnage allowance on account of crew space is returned by the surveyor to the collector of customs on a form headed " Surveys 61." Ibid. par. 66. (42) Grew spaces inspected for the purpose of registry or re-registry need not be reported to the Board of Trade on the form headed " Surveys 63." Ibid. par. 60. (43) Surveyors are to send into the appli- cants for crew space inspection of any vessel a report after each survey, stating their re- quirements, and giving their expenses in detail, on the proper form. Ibid. par. 42. (44) The duty of surveying the crew space under the M. S. Act, 1867, s. 9, is to be ful- filled, if necessary, in equal proportion by all the surveyors in the port or district quali- fied for the duty, unless special directions are given to the contrary. Ibid. par. 29. (45) Surveyors cannot be required to enter any crow space for the purpose of in- spection unless it is in a sufficiently clean and clear state. Ibid. (46) As to the fees and expenses to be charged for surveys of crew spaces, see Pt. I. c. 3, s. 3, p. 1186. * (47) tTpon such complaint one of the surveyors appointed under Part TV. of the principal act is required to make the re- quired inspection, and report to the collector of customs of the port. See Board of Trade Instructions, &c, 1883, par. 36. (48) It will then be for the collector to take such steps as are required of him by this section. Ibid. (49) The form of the report used by the surveyor in this case is headed " Surveys 62." Ibid. 4h 1194 OWNERS. Part I. Title and Registration. from time to time become necessary in the tonnage rules prescribed by this act in order to the more accurate and uniform application thereof, and the effectual car- rying out of the principle of the measure- ment therein adopted. See the M. S. Act, 1854 (e. 104), s. 29, as amended by the M. S. Act, 1872 (c. 73), s. 3. 112. Sect. 29 of the M. S. Act, 1854, and s. 3 of the M. S. Act, 1872, enabled the Board of Trade, with the sanction of the Treasury, to make alterations in the "tonnage rules" prescribed in the act. Held, that they could not, under this sec- tion, abolish the distinctions between dif- ferent classes of vessels or the allowances directed to be made to each class in esti- mating the registered tonnage under the 23rd section, but only to alter the mode of measuring. The City of Dublin Steam Packet Co. v. Thompson, L. E. 1 C. P. (Exch.) 355 ; 34 L. J. 0. P. 316 ; 35 ibid. (Exch.) 198; 2 Asp. 247; ibid. (Exch.) 412; 19 C. B. N.S. 553; H. & E. 369; 12 L. T. N.S. 849. 113. Any body corporate or persons having power to levy tonnage rates on ships may, with the consent of the Board of Trade, levy such rates on the regis- tered tonnage as determined by the M. S. Acts, notwithstanding any local act pro- viding a different system of measurement. See M. S. Act Amendment Act, 1862 (c. 63), s. 4. 114. As to the tonnage dues to be paid by ships carrying deck cargo in any uncovered space upon deck, or in any covered space not included in the cubical contents forming the ship's re- gistered tonnage, see M. S. Act, 1876 (c. 80), s. 23. 115. As to the abolition of exemption of ships from paying dues when engaged in certain local trades, see the Shipping Dues Exemption Act, 1 867 (c. 15), amended by the Shipping Dues Exemption Act Amendment Act, 1869 (c. 52). (e) Deck Cargoes. 116. If any ship, British or foreign, other than home trade ships as defined by the M. S. Act, 1854, carries timber, Stores, or other goods as deck cargo, i, e. in any uncovered space upon deck, or in any covered space not included in the cubical contents forming the ship's regis- tered tonnage, all dues payable on the ship's tonnage shall be payable as if there were added to the ship's registered tonnage the tonnage of the space occupied by such goods at the time at which such dues become payable. See M. S. Act, 1876 (c. 80), s. 23. 117. The space so occupied shall be deemed to be the space limited by the area occupied by the goods and by straight lines inclosing a rectangular space suffi- cient to include the goods. Ibid. 118. The tonnage of such space shall be ascertained by the officer in manner directed by the M. S. Act, 1854, 's. 21, sub-s. 4, and shall be entered by him in the ship's official log-book and in a me- morandum he ehall deliver to the master, who shall, when the dues are demanded, produce the memorandum as if it were the certificate of registry, or, if a foreign ship, the document equivalent thereto. Penalty for default against the master the same as for non-production of certifi- cate of registry (^e. £100, see M. S. Act, 1854 (c. 104), s. 50) or analogous docu- ment. Ibid. 119. These provisions as to deck cargo do not apply to any ship whilst engaged in the coasting trade of any British pos- session. Ibid. s. 44. 119a. As to deck cargoes generally, see this tit. Pt. V. c.l. 7. 120. The owner of any ship which is measured under Eule II. in sect. 22 of the M. S. Act, 1854, may at any time afterwards apply to the Board of Trade to have the ship re-measured under Eule I. of that act. See the M. S. Act Amend- ment Act, 1855 (c. 91), s. 14, as amended by the M. S. Act, 1872 (c. 73), s. 3. See also note 19, p. 1188. 121. Eor provisions for the re-measure- ment of ships registered before this act came into operation, and for re-measure- ment subsequently to that time of steamers of which the engine-room compartment has been extended, see M. S. Act, 1854 (c. 104), ss. 27 and 28, as amended by M. S. Act, 1872 (c. 73), s. 3; and see No. 112. 122. When the tonnage of a ship has been duly ascertained and registered, if any alteration is made in the form or capacity of the ship, or it is discovered that the tonnage has been erroneously computed, the ship must be re-measured, and her tonnage determined and regis- tered as before. See M. S. Act, 1854 (c. 104), s. 26. OWNERS. Part I. Title and Registration. 1195 8. Naming and Marking.* (a) Generally. 123. A British ship shall not be de- scribed by any other name than that by which she is registered. Penalty for breach not exceeding £100; and any principal officer of customs may detain the ship until the provisions of this section are complied with. See the M. S. Act, 1871 (c. 110), s. 6. 124. As to the marking before regis- try, according to directions of the Board of Trade, of every British ship's name on her stern and both bows, her port of re- gistry on her stern, and her official number, and number denoting her registered ton- nage on her main beam, and as to the size and colour of the letters, see Ibid. 1873 (c. 85), s. 3. 125. These maris are to be perma- nently continued unless altered as pro- vided by the M. S. Acts. Penalty for breach against owner or master not ex- ceeding £100 ; and any officer of customs on receipt of a certificate that the ship is inaccurately marked, may detain her until properly marked. Ibid. (b) Changes.^ 126. No change shall be made in the name of a British ship without the pre- vious permission of the Board of Trade under seal or under the hand of one of its- secretaries or assistant-secretaries. Application for such change is to be made in writing'to the Board. If the Board entertains the application it will require such notice thereof to be published as it may think fit. On such permission being granted, the ship's name shall forthwith be altered in the register book, in the certificate of registry, and on her bows and stern. If it is shown to the satisfac- tion of the Board that the name of any ship has been changed without such per- mission, it shall direct her name to be altered into the name she bore before such change, and the name shall be altered in the register book, certificate of registry, and on her bows and stern accordingly. Penalty for change of name without per- mission, not exceeding £100; and any principal officer of customs may detain the ship until the provisions of this sec- tion are complied with. Ibid. 1871 (c. 110), s. 6. 127. When a ship having once been registered has ceased to be so registered, no person shall apply to register, and no registrar shall register, such ship except by the name by which she was previously registered, unless by permission of the Board of Trade, to be granted as therein mentioned. Penalty for breach (unless from ignorance) not exceeding £100; and any principal officer of customs may detain the ship until the provisions of this section are complied with. Ibid. (c) Foreign Ship becoming British. 128. When a foreign ship which has not previously been registered as a British ship becomes a British ship, no person shall apply to register, and no registrar shall register, such ship except by the name she bore as a foreign ship just be- fore becoming a British ship, unless by permission of the Board of Trade.* Penalty for breach not exceeding £100. Ibid. 1873 (c. 85), s. 5. (d) Exemptions. 129. The Board of Trade may exempt any class of ships from the requirements of sect. 3. Ibid. 1873 (c. 80), s. 3. 130. No fishing vessel duly registered, lettered and numbered, pursuant to the Sea Fisheries Act, 1868, is required to have her name and port of registry marked under this section. Ibid. 1 31. As to yachts, barges, pilot vessels, and others exempt from the requirements of having their names marked on their bows, and the scale of feet on the stem and stern posts, see Board of Trade Instructions as to marking of ships, 2 Maude & PoU. (4th ed. by Pollock & Bruce), p. cccxx. 9. Dec7c and Load Lines.% (a) Generally. 132. Every British ship (except ships * (50) As to the fees and expenses to be charged in respect of inspection prior to marking, see c. 3, s. 3, p. 1186. t (50a) As to the fees and expenses to be charged in respect of survey for change of name, see c. 3, s. 3, p. 1186. % (51) See the report, anno 1885, of the Load Line Committee, under the presidency of Sir E. J. Eeed, with sets of tables annexed, de- fining the free board, and showing the system of loading recommended for flush deck, open deck, and awning deck steamers, and for sailing vessels. They are based upon the tables of Lloyds' Eegister Committee. See further reference thereto in this title, part and chapter, in Addenda. 4h2 119© OWNERS. Part I. Title and Registration. under eighty tons register employed solely in the coasting trade, ships employed solely in fishing, and pleasure yachts) is to be marked with lines of the length, breadth, and colour herein indicated, painted longitudinally amidships, and indicating the position of each deck above water. The upper edge of each of these lines is to be level with the upper side of the deck plank next the waterway at the place of marking. See M. S. Act, 1876 (c. 80), s. 25. 133. The owner of every such ship before entering her outwards from any port in the United Kingdom is to mark upon each of her sides amidships, or as near thereto as practicable, in white or yellow on a dark ground, or in black on a light ground, a circular disc twelve inches in diameter, with a horizontal line eighteen inches in length drawn through its centre. Ibid. s. 26, sub-s. 1. 134. The centre of this disc must indi- cate the maximum load line in salt water to which the owner intends to load the ship for that voyage. Ibid, sub-s. 2. . 135. He must also, upon so entering "her, insert in the form of entry to the collector or principal officer of customs a statement in writing of the distance in feet and inches between the centre of this disc and the upper edge of each of the lines indicating the position of the ship's decks above that centre. Ibid. sub-s. 3. 136. In default of his delivering this statement, any officer of customs may refuse to enter the ship outwards. Ibid. sub-s; 4. 137. The master of the ship is to enter a copy of this statement in the agreement with the crew before it is signed by any of the crew, and no superintendent of any mercantile marine office is to proceed with the engagement of the crew until this entry is made. Ibid, sub-s. 5. 138. The master is also to enter a copy of this statement in the official log-book. Ibid, sub-s. 6. 139. All entries made in the official log in the manner directed by the Act of 1854 (c. 104), ss. 280—284, are to be re- ceived as evidence subject to all just ex- ceptions. Ibid. 1854 (c. 104), s. 285. 140. The ship is to be kept so marked until her return to a port of discharge in the United Kingdom. Ibid. 1876 (c. 80), S. 25, sub-s. 7. 141. Penalty for neglecting to have ship marked, as required by this act, or to keep her so marked, against owner or master, not exceeding £10Q; V>^. s. 28. . " 142. Penalty, if' any one of these marks is inaccurate and likely to mislead, against owner, not exceeding £100. Ibid. ' 143. The provisions of this act do not apply to any vessel employed exclusively in going from place to place in any river or inland water of which the whole or part is in any British possession. Ibid. s. 44. (b) Ships in Coasting Trade. 144. The owner of every British ship employed in the coasting trade on the coasts of the United Kingdom (except ships under eighty tons register em- ployed solely in that trade) must, before she proceeds to sea from any port, mark upon her the circular disc, in the posi- tion and of the size and colour required for other ships (vide supra, Nos. 133, 134). See M. S. Act, 18*76 (c. 80), s. 27, sub- s. 1. 145. The owner must also, once in every twelve months, before the ship proceeds to sea, send to the collector or principal officer of customs of her port of registry a statement in writing of the distance in feet and inches between the centre of the disc and the upper edge of each of the lines indicating the position of the ship's decks above that centre. Ibid, sub-s. 3. 146. The owner must also, before the ship proceeds to sea after any renewal or alteration of the disc, send this officer notice in writing of such renewal or alteration, together with the statement in writing of the distance between the centre of the disc and the upper edge of each of the deck-lines. Ibid, sub-s. 4. 147. Penalty for default in sending this statement, or notice of alteration or re- newal, against the owner, not exceeding £100. Ibid, sub-s. 5. 148. When a ship has been marked as by this section required, she shall be kept so marked until notice is given oi an alteration. Ibid, sub-s. 6. 149. Penalty against master or owner for default, not exceeding £ 1 00. Ibid. s. 28. 149a. Penalty against master or owner for allowing the ship to be so loaded as to submerge, in salt water, the centre of the disc, and against any person who conceals, alters, or obliterates, or suffers any person under his control to do so, any of the marks, except to escape capture by an enemy, not exceeding £100. Ibid. 150. Penalty, if any one of the marks OWNERS. Part I. Title and Registration. 1197 required is inaccurate, and likely to mis- lead, against owner, not exceeding £100. Ibid. 10. Draught of Water.* 151. The Board of Trade may, in cases in which they think it expedient, direct any person appointed by them for the purpose, to record in such manner and with such particulars as the Board may direct, the draught of water of any sea- going ship as shown on the scale on her stem and stern post, upon leaving any dock, wharf or harbour, for sea; and such person shall thereupon keep such record, and from time to time forward it or a copy to the Board, and such record or copy produced out of the custody of the Board shall be admissible in evidence of the draught of water of the ship at the time specified. See the M. 8. Act, 1871 (c. 110), s. 5. 152. The master of every British sea- going ship, on proceeding to sea, shall record her draught of water in the official log, and produce the same to any prin- cipal officer of customs when required. Penalty for breach not exceeding £20. Ibid. 153. As to the marking on the stern post, and each side of the stem, of every British ship before registry, of a scale of feet denoting her draught of water ; and as to the cutting in, painting and colouring of such letters or figures according to the directions of the Board of Trade, see the M. 8. Act, 1873 (c. 85), s. 3. Penalty for inaccuracy of scale against owner, not exceeding £100. Ibid. 154. These marks are to be perma- nently continued, unless altered, as pro- vided by the M. 8. Act. Penalty for breach against owner or master not ex- ceeding £100 ; and any officer of customs on receipt of a certificate that the ship is inaccurately marked may detain her until properly marked. See M. S. Act, 1873 (c. 85), s. 3. 154a. Penalty against master or other person interested in a ship who makes or is privy to the making of any fraudu- lent alteration in such marks, not exceed- ing £500. Ibid. 1854 (c. 104), s. 359. 155. This record shall also specify the extent of the clear side in feet and inches, the term "clear side" meaning the height from the water to the upper side of the plank of the deck from which the. depth of hold, as stated in the register, is mea- sured, and the measurement of the clear side is to be taken at the lowest part of the side. Ibid. 1873 (c. 85), s. 4. 156. The master of any sea-going ship is to permit the inspection and measure- ments required for such record. Penalty for breach not exceeding £5. Ibid. 157. The Board of Trade may exempt any class of ships from the requirements of sect. 3. Ibid. s. 3. 11. Registrars. 158. The persons required to register British ships as registrars for the pur- poses of this act, at any port or place in the United Kingdom or Isle of Man approved by the Commissioners of Cus- toms for the registry of ships, are the collector, comptroller, or other principal officer of customs there. See the M. S. Act, 1854 (c. 104), s. 30. 15§. As to the registrars of British, vessels abroad, see Ibid. ss. 30, 31. 160. Every registrar keeps a book called "The Register Book," and enters therein the particulars required to be registered. It may be inspected by any person on payment of a fee not exceeding one shilling. See Ibid. ss. 32 and 92. 161. As to the person authorized to fix the fee, see Ibid. s. 92, andM. S. Act, 1872 (c. 73), s. 4. 162. As to the responsibilities of regis- trars, see M. S. Act, 1854 (c. 104), s. 93. 163. Periodical returns are to be made * (52) The duties of an officer appointed to record the draught of water extend only to sea-going ships. The officer does not record the draught of water of steamers in ballast or carrying passengers, and not cargo, but he records the draught of all other sea-going steamers. As regards sailing ships, he re- cords the draught of water of those wholly or partially laden with coal, iron or metallic ores ; and as regards any other sea-going ships he uses his discretion, and is guided by circumstances. The record is made on the spot in a pocket hook. See Board of Trade Instructions to officers in recording the draught of water of ships, headed Draught of "Water Circulars, M. 6144 (1879), p. 1. (53) As to the measurement for clearside, see Circular, No. 623, May,- 1873 ; and Board of Trade Instructions, &c, Ibid. p. 2. (54) No ship on the point of sailing is to be detained to obtain the depth of hold for recording the draught of water. Ibid. p. 4. 1198 OWNERS. Part I. Title and Registration. by every registrar in the United King- dom and elsewhere to the Begistrar- General of Shipping and Seamen in Lon- don of all registries, transfers, transmis- sions, mortgages, and other dealings with ships, and of such other particulars as may he directed by him. See the M. S. Act, 1854 (c. 104), s. 94, as amended by the M. S. Act, 1872 (c. 73), s. 4. 164. For provisions enabling her Ma- jesty by Order in Council to declare with respect to British possessions mentioned in the order the description of persons who are to be registrars of British ships in that possession, see the Merchant Ship- ping Colonial Act, 1869 (c. 11), s. 6. 12. Surveyors. See cap. 6, p. 1208. 13. Evidence of Ownership. 165. No person shall be entitled to be registered as owner of a ship or any share therein until he has made a declaration in the form marked B. in the schedule. See M. S. Act, 1854 (c. 104), s. 38. 166. The declaration shall be made and subscribed in the presence of the registrar if the declarant reside within five miles of the custom house of the port of registry, but if beyond that distance, in the presence of any registrar or of any justice of the peace. Ibid. • 167. No body corporate shall be en- titled to be registered as owner of a ship or share therein until the secretary or duly appointed public officer thereof has made in the presence of the registrar of the port of registry a declaration in the form marked C. in the schedule. Ibid s. 39. 168. Upon the first registry of a ship there shall, in addition to the declaration of ownership, be produced the following evidence : — (1.) In the case of a British- built ship, a certificate (which the builder is required to grant under his hand) con- taining a true account of the proper de- nomination and of the tonnage of such ship as estimated by him, and of the time when, and place where, such ship was built, together with the name of the party (if any) on whose account he has built the same; and, if any sale or sales have taken place, the bill or bills of sale under which the ship or share therein has be- come vested in the party requiring to be registered as owner. (2.) In the case of a foreign-built ship, the same evidence as in the case of a British-built ship, unless the person requiring to be registered as owner, or, in the case of a body corporate, the duly appointed officer, declares that the time or place of her building is un- known, or that the builder's certificate cannot be procured, in which case there shall be required only the bill or bills of sale under which the ship or share therein became vested in the party requiring to be registered as owner thereof. (3.) In the case of a ship condemned by any com- petent court, an official copy of the con- demnation of such ship. Penalty for false statement against builder not ex- ceeding £100. Ibid. ss. 40 and 41. 169. "Whenever, under the second part of this act, any person is required to make a declaration on behalf of himself, or of any body corporate, or any evidence is required to be produced to the regis- trar, and it is shown that such person is unable to make the declaration, or that such evidence cannot be produced, the registrar may, with the sanction of the Commissioners of Customs, and subject to such terms as they may think fit, dispense with such declaration or evidence. Ibid. s. 97. 170. If any person interested in any ship or share therein is, by reason of in- fancy, lunacy, or other inability, incapable of making any declaration or doing any- thing required, in respect of registry, then his guardian or committee, if any, or if none, any person appointed by any court or judge possessing jurisdiction in respect of the property of incapable persons, upon the petition of any person on his behalf, or of any other person interested therein, may make a declaration as nearly corre- sponding thereto as circumstances permit, and do such thing in the name and on behalf of such incapable person. Ibid. S. 33 . 171. False statements in the evidence produced on the registry of a British vessel are made a misdemeanor, and instruments not in the required form may be refused registration by the registrar. See the M. S. Amendment Act, 1855 (c 91), s. 9. _ 172. All instruments used in carrying into effect the second part of this act {i.e. as to the ownership, measurement and registry of British ships), if not already exempted from stamp duty, and all instruments used by or under the direction of the Board of Trade in carry- ing such part of this act into effect, are exempt from stamp duty. See the M S Act, 1854 (c. 104), s. 9. OWNERS. Part I. Title and Registration. 1199 14. Managing Owner or Ship's Husband's Name and Address. 173. The name and address of the managing owner of every British ship registered in the United Kingdom shall be registered at the custom house of the ship's port of registry. "When there is no managing owner there shall be so registered the name of the ship's hus- band or other person to whom the management of the ship is entrusted for the owner. Any person whose name is so registered shall, for the purposes of the M. 8. Acts, 1854 to 1876, be under the same obligations, and subject to the same liabilities, as if he were the manag- ing owner. See M. S. Act, 1876 (c. 80), s. 36. 174. Penalty for breach against the owner, or if more than one against each owner in proportion to his interest, not exceeding in the whole £100 each time the ship leaves any port in the United Kingdom. Ibid. 175. The provisions of this act do not apply to any vessel employed exclusively in going from place to place in any river or inland water of which the whole or part is in any British possession. Ibid. s. 44. 15. Who may be Owners. 176. No ship shall be deemed to be a British ship unless she belongs wholly to owners of the following description : — (1.) Natural-born British subjects; but no natural-born subject who has taken the oath of allegiance to any foreign sovereign shall be entitled to be such owner unless he has, subsequently there- to, taken the oath of allegiance to her Majesty,* and is and continues to be, while such owner, resident in her Ma- jesty's dominions, or a member of a British factory, or partner in a house carrying on business in her Majesty's dominions. (2.) Persons made denizens by letters of denization, or naturalized by any act of the imperial legislature, or any act or ordinance of any British pos- session; but such persons are to continue to be while such owners resident in her Ma- jesty's dominions, or members of a British factory, or house of business in her Ma- jesty's dominions, and must have taken the oath of allegiance to her Majesty subsequently to their being so made denizens or naturalized. (3.) Bodies cor- porate established under, subject to the laws of, and having their principal place of business in, the United Kingdom, or some British possession. See M. S. Act, 1854 (c. 104), s. 18. 177. The rules with respect to entries in the register book are as follows (see Ibid. s. 37) : — The property in a ship shall be divided into sixty-four shares : sub-s. 1 . Subject to the provisions with respect to j oint owner s or owners by transmission con- tained in the act, not more than sixty-four individuals shall be entitled to be registered at the same time as owners of any one ship ; but this rule shall not affect the beneficial title of any number of persons of any company represented by or claim- ing under or through any registered owner or joint owner : sub-s. 2, as amended by M. S. Act, 1854, Amendment Act, 1880, c. 18, s. 2. No person shall be entitled to be registered as owner of any frac- tional part of a share in a ship ; but any number of persons not exceeding five may be registered as joint owners of a ship, or of a share or shares therein : sub-s. 3. Joint owners shall be considered as con- stituting one person only as regards the foregoing rule relating to the number of persons entitled to be registered as owners, and shall not be entitled to dispose in severalty of any interest in any ship, or in any share or shares therein in respect of which they are registered : sub-s. 4. A body corporate may be registered as owner by its corporate name : sub-s. 5. 16. Of what Vessels. 178. Every British ship must be regis- tered, except ships not exceeding fifteen tons burden, employed solely on the rivers or coasts of the United Kingdom, or of some British possession, within which the managing owners are resident, and ships not exceeding thirty tons burden, and not having a whole or fixed deck, and em- ployed solely in fishing or trading coast- wise on the shores of Newfoundland or parts adjacent, or in the gulf of St. Law- rence, or on the coasts of Canada, Nova Scotia or New Brunswick, bordering on * (54a) This provision is not to be affected by anything contained in the Promissory Oaths Aot, 1868 (c. 72), except that the form of the oath of allegiance as prescribed by that Act shall be substituted for the form of the oath of allegiance contained in the M. S. Act, 1854. See the Promissory Oaths Act, 1868 (c. 72), s. 14, sub-s. 8. 1200 OWNERS. Part I. Title and Registration. such gulf. "No ship hereby required to be registered can, unless registered, be recognized as a British, ship. See M. S. Act, 1854 (c. 104), s. 19. 179. See Nos. 55, 56a, 565, 56c, and 57, p. 1186. 17. Port of Registry. (a) Generally. 180. The port or place at which any British ship is registered for the time being is her port of registry, or the port to which she belongs. See M. S. Act, 1854 (c. 104), e. 33. (b) Change of—. 181. The registry of any ship may be transferred from one port to another on the application of all parties on the register interested as owners or mort- gagees. Such application is to be by declaration in writing made, if the party resides at or within five miles of the custom house of the port from which the ship is to be transferred, in the presence of the registrar of such port, but if beyond that distance in the presence of any registrar or justice of the peace. On such application, and on the delivery to him of the certificate of registry, the registrar of the port at which the ship is already registered transmits to the regis- trar of the port at which she is intended to be registered notice of the application, a true copy of all particulars relating to the ship, and the names of all the parties appearing by his book to be interested as owners or mortgagees ; and this regis- trar then enters all such particulars and names in his book of registry, and grants a fresh certificate of registry, and thence- forth the ship is to be considered as registered there, and the name of such port is to be substituted on her stern in Ueu of the name of the previous port. This transfer of registry does not in any way affect the rights of the persons inte- rested as owners or mortgagees therein. Ibid. ss. 89—91. 18. Foreign Ports of Registry. 182. For provisions enabling her Ma- jesty by order in council to declare certain foreign ports to be foreign ports of registry, and the persons who are to be registrars of British ships there, and to make regulations for the registry of British ships there. See the M. S. Act, 1873 (c. 85), s. 29. 19. Alteration of Ship. 183. "Whenever any registered ship is so altered as not to correspond with the particulars in the register book, then, if such alteration is made at a port where there is a registrar, that registrar, but if made elsewhere, the registrar of the first port having a registrar at which the ship arrives after her alteration, shall, on application made to him, and on receipt of a certificate from the proper surveyor specifying the nature of such alteration, either retain the old certificate of registry and grant a new one with a description of the ship as altered, or indorse and sign on the old certificate a memorandum of such alteration ; . and if he is the regis- trar of the port of registry of the ship, enter in his register book the particulars of the alteration, and the fact of such new certificate having been granted, or indorse- ment made on the old certificate ; but if not such registrar forthwith reports such par- ticulars and facts with the old certificate when a new one has been granted, to the registrar of 'the port of registry of the ship, who shall retain the old certificate, and enter such particulars and facts in his register book accordingly. See the M. S. Act, 1854 "(c. 104), s. 84. 184. The registrar to whom such appli- cation is made may, instead of register- ing such alteration, require the ship to be registered anew, but if he is not the registrar of her port of registry, he shall grant a provisional certificate, or make the provisional indorsement of the alte- ration as before directed in cases where no registry anew is required, adding to such certificate or indorsement a state- ment that the same is made provisionally, and reporting accordingly to the regis- trar of the port of registry of the ship. Ibid. s. 85. 185. Every such provisional certificate, or certificate provisionally indorsed, shall, within ten days after the first subsequent arrival of the ship at her port of discharge in the United Kingdom, if registered there, or at her port of discharge in the British possession within which her port of registry is situate, be delivered up to the registrar thereof, who shall thereupon cause such ship to be registered anew as on the first registry of a ship. Ibid. s. 86. 186. On failure of such registry anew, or registry of alteration of any ship so altered, such ship shall be deemed not duly registered, and shall no longer be recognized as a British ship. Ibid. s. 87. OWNERS. Part I. Title and Registration. 1201 As to disabilities of non-recognized British ship, see Pt. II. c. 19, p. 1244. 20. Bill of Sale* 187. A registered ship or any share therein, when disposed of to persons qualified to he owners of British ships, shall be transferred by bill of sale, which shall be according to the form marked E in the schedule, or as near thereto as circumstances permit, and shall be exe- cuted in the presence of and attested by one or more witnesses. See the M. S. Act, 1854 (c. 104), s. 55. 188. A mere literal deviation from the prescribed form will not render it void. Taylor v. Kinloch, 1 Stark. N. P. C. 175. Nor a mere clerical error. Rolleston v. Smith, 4 T. E. 161. 189. No individual shall be entitled to be registered as such transferee until he has made a declaration in the form marked P in the schedule, and no body corporate until its secretary or other duly appointed public officer has made a de- claration in the form marked G in the schedule. See M. S. Act, 1854 (c. 104), s. 56. 190. Every such bill of sale, when duly executed, shall be produced to the regis- trar of the port at which the ship is re- gistered, with the declaration required to be made by the transferee; and the registrar shall thereupon enter in the register book the name of the transferee as owner, and indorse on the bill of sale the fact of such entry having been made, with the date and hour thereof ; and all bills of sale shall be entered in the regis- ter book in the order of their production to the registrar. Ibid. s. 57. 191. Shares in a vessel were trans- ferred for value by a bill of sale which was never registered. The transferee from time to time received his share of the profits. Held, that the transferee's title was not affected by the subsequent bankruptcy of the transferor while still registered as owner. Watson v. Duncan, Cases in Court of Session, 4th series, vol. 6, p. 1247. [Scotch.] 192. The registration of an assignment of an agreement for the purchase of a ship is not required under the Bills of Sale Act, 1854, c. 36. Swainston v. Clay (C. A.) 1 Asp. 343 ; 8 L. T. N.8. 563 ; 9 Jur. N.S. 401 ; 32 L. J. 338, 503 ; 4 Giff. 187. 193. The court is entitled to look be- hind a registered bill of sale, although absolute in its terms, and to have regard to all the concomitant circumstances in order to determine the real nature of the transaction. The Jane, 3 Asp. 527. [Ibish.] See also The Innisf alien, L. E. 1 A. &E. 72; 35 L. J. Adm. 110; 2 Asp. 470 ; and M. S. Act Amendment Act, 1862 (c. 63), s. 3. 194. A transfer of a vessel by a bill of sale, under the M. S. Act, 1854, s. 55, to a bond fide purchaser for value, vests the property in such vessel in the transferee from the time of its execution, although, until registration of the transfer the transferee cannot transfer the vessel to a purchaser from himself. Stapleton v. Haymen, 2 H. & C. 918 ; 10 Jur. N.S. 497; 33 L. J. Exch. 170; 12 W. E. 317; 9L. T. N.S. 655. 195. When a bill of sale of a ship has been executed in the form prescribed by sect. 55 of theM. S. Act, 1854 (c. 104), the provisions of sect. 66 do not prevent the owners from showing that the transfer, though absolute in its terms, was in- tended as a security only. Ward v. Beck, 13 C. B. N.S. 668; 9 Jur. N.S. 912; 32 L. J. C. P. 113. 196. The M. S. Act Amendment Act, 1862 (c. 63), s. 3, is a declaratory enact- ment that this is the true interpretation. Ibid. 197. An infant son of the bankrupt having been registered as owner of a ship, the conveyance under which the infant claimed from his father was sub- sequently set aside as fraudulent, but his name still continued on the register. Held, that the ship was properly ar- rested as the property of the father. Bell v. Gow, 1 Macph. 183; 35 Jur. 157. [Scotch.] 198. A ship registered under the M. S. Act, 1854, was dismantled and used for several years as a coal hulk. Her owners then sold her as a coal hulk under a written agreement, and delivery was made to the purchasers. Held, that she had ceased to be a ship within the mean- ing of the act, and was transferable otherwise than by bill of sale under the 55th section of the act. The European and Australian Royal Mail Co. Limited v. The Peninsular and Oriental Steam Navigation Co., 2 Asp. 351. 199. Per Martin, B. — At any rate the original owners who had sold her as a * (55) No stamp thereon- is required. See M. S. Act, 1854, c. 104, s. 9. 1202 OWNERS. Part I. Title and Registration. " coal hulk " were estopped from denying that she was one. The European and Australian Royal Mail Co. Limited v. The Peninsular and Oriental Steam Na- vigation Co., 2 Asp. 351. 200. A vessel built by a British sub- ject for a foreign purchaser, to be de- livered to such purchaser at a foreign port, was, when completed, assigned by the builder for valuable consideration to the plaintiff. The assignment was not registered under the Bills of Sale Act, 1854 (c. 36), nor under the M. S. Act, 1854 (c. 104), s. 57, nor was the vessel registered as a British ship under sect. 19 of the latter statute. Held, by the Court of Appeal, affirming the decision of Pol- lock, B., (1) that the assignment did not require registration under the Bills of Sale Act, 1854 ; (2) that the ship was not a British ship within the meaning of the M. S. Act, 1854, and that an assignment of her need not be by bill of sale under the 55th section, and did not require re- gistration under the 57th section of that statute. The Union Bank of London v. Lenanton, L. E. 3 0. P. D. (0. A.) 243 ; 47 L. J. C. L. (0. A.) 409 ; 3 Asp. N.S. 600. 201 . Held, perBramwellandBrett, L. JJ., that a vessel which has not been registered under sect. 19 of the M. S. Act, 1854, can be validly assigned, although such assign- ment is not by bill of sale under the act. Ibid. 202. A ship that has been duly sold by public auction to a bond fide and innocent purchaser cannot subsequently be pro- ceeded against and condemned to the Crown on account of former piratical acts. The Telegrapho or Restauracion, L. E. 3 P. C. 673; 40 L. J. Adm. P. C. 18 ; 8 Moore P. C. N.S. 43 ; 1 Asp. N.S. 63. 202a. The court cannot look behind a ship's register for the purpose of dispos- sessing an innocent purchaser for value, whose name is on the register, and who purchased from a person who was on the register as owner. The Horlock, 2 P. D. 243 ; 47 L. J. P. D. 5. • 21. Transfers. 203. Tho delivery of a vessel by a vendor to a purchaser means, that the purchaser is to have the control of the vessel, but not necessarily that he is to be put into the manual possession of it. To complete the delivery he must be able to direct where the vessel shall go, what it shall do, what performances it shall be required to undertake; in fact, to have exactly the same power over it as exists with respect to any other chattel which is sold and delivered to a purchaser. Burke v. Rogerson, 13 L. T. N.S. 415 ; 2 Asp. 266, 375. 204. The duty to register a transfer of ownership rests with the vendee. The Spirit of the Ocean, 34 L.J. Adm. 74; 12 L. T. N.S. 239. 22. Agreement to transfer Ship. 205. An agreement in writing to trans- fer a ship does not require to be regis- tered under the M. S. Act, 1854 (c. 104), s. 55, nor need the special description of the ship sold, required by that section to be inserted in a bill of sale transferring the ship, be contained in such an agree- ment. Batihyany v. Bouch, 50 L. J. Q. B 421 ; 44 L. T. 177 ; 29 W. E. 665 — Grove, J. 206. The plaintiff agreed in writing with the defendant to sell, and the de- fendant agreed to purchase, a yacht belonging to the plaintiff for the sum of £2,600, whereof the plaintiff was the registered owner, on condition that the defendant should be at liberty to rescind the said agreement should the yacht prove unsound. The defendant refused to carry out his part of the agreement, and the plaintiff brought an action against the defendant for specific performance, or in the alternative £2,600, and for damages for breach of agreement. The defendant pleaded that the agreement, if any was made, was not a bill of sale, nor was it registered, nor did it contain a sufficient description of the yacht, as required by the M. S. Act, 1854. The plaintiff de- murred. Held, that sect. 55 of the M. S. Act, 1854, applies to the actual instru- ment by which the ship is to be trans- ferred, and not to an agreement to trans- fer. Ibid. 23. Certificates of Sale. 207. Any registered owner desirous of selling his ship or share at any place not being her port of registry, may obtain from th.6 registrar a certificate of sale. See the M. S. Act, 1854 (c. 104), s. 76. 208. Previously to any such certificate being granted, the applicant must state to the registrar, to be entered in the register book, the names of the persons by whom the power mentioned in such OWXERS. Part I. Title and Registration. 1203 certificate is to be exercised, and the minimum price if it is intended to fix a minimum ; the place or places where the power is to be exercised, or that it may- he exercised anywhere, subject to the other provisions of the act, and the limit of time within which the power may be exercised. Ibid. s. 77. 209. No certificate of sale is to be granted to authorize a sale in the Uni- ted Kingdom if the port of registry "of the ship is situate there, nor at any place in the same British possession if the port of registry is situate there, nor by any person not named in the certificate. Ibid. s. 78. • 210. Certificates of sale are to be in the form marked N. in the schedule. Ibid. s. 79. 211. No such certificate shall be granted except for the sale of an entire ship. Ibid. s. 81. 212. The power shall be exercised in conformity with the directions contained in the certificate. Ibid. 213. No sale bond fide made to a pur- chaser for valuable consideration shall be impeached by reason of the person by whom the power was given dying before the making of such sale. Ibid. 214. Whenever the certificate contains a specification of the place or places at which, and a limit of time not exceeding twelve months within which, the power is to be exercised, no sale bond fide made to a purchaser for valuable consideration without notice shall be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given. Ibid. 215. Any transfer made to a person qualified to be the owner of British ships shall be by bill of sale in the form men- tioned in the act, or as near thereto as circumstances permit. Ibid. 216. If the ship is sold to a party qualified to hold British ships, the ship shall be registered anew; but notice of all mortgages enumerated on the certifi- cate of sale shall be entered in the register book. Ibid. 217. Previously to such registry anew there shall be produced to the registrar required to make the same the bill of sale by which the ship is transferred, the cer- tificate of sale, and the certificate of registry. Ibid. 218. Such registrar shall retain the certificates of sale and registry, and after having indorsed on both an entry of the fact of sale, shall forward them to the registrar of the ship's port of registry, who shall make a memorandum of the sale in his register book, and the registry of the ship in such book shall be con- sidered as closed, except as far as relates to any unsatisfied mortgages or existing certificates of mortgage entered therein. Ibid. 219. On such registry anew the de- scription of the ship contained in her original certificate of registry may be transferred to the new register hook, without her being re-surveyed, and the declaration to be made by the purchaser shall be the same as would be required to be made by an ordinary transferee. Ibid. 220. If the ship is sold to a party not qualified to be the owner of a British ship, the bill of sale, certificate of sale, and certificate of registry shall be pro- duced to some registrar or consular officer, who, after having indorsed thereon the fact of such ship having been sold to persons not qualified to be owners of British ships, shall forward them to the registrar of the ship's port of registry, who shall thereupon make a memorandum of the sale in his registry book, and the registry of the ship in such book shall be considered as closed, except so far as relates to any unsatisfied mortgages or existing certificates of mortgage entered therein. Ibid. 221. If upon a sale being made to an unqualified person, default is made in the production of the certificates, such person shall be considered as having acquired no title to, or interest in, the ship. Pe- nalty against the persons who obtained the certificate and exercised the power not exceeding £100. Ibid. 222. If no sale is made in conformity with the certificate of sale, such certificate shall be delivered to and cancelled by the registrar who granted it, the fact of cancellation being entered in the register book. Ibid. 223. Upon proof at any time to the satis- faction of the Commissioners of Customs that any certificate of mortgage or sale is lost, or so obliterated as to be useless, and has never been used, or if used, upon proof of the matters done thereunder, the registrar may, with the sanction of the Commissioners, issue a new certificate, or direct such entries to be made in the register book, or do such other act as he might have done if no such loss or ob- literation had taken place. Ibid. s. 82. 224. The registered owner of any ship 1204 OWNERS. Part I. Title and Registration. or share, in respect of which a certificate of sale has been granted, specifying the place where the power is to be exercised, may, by an instrument under his hand in the Form 0. in the schedule, or as near thereto as circumstances permit, autho- rize the registrar who granted such certi- ficate, to give notice to the registrar or consular officer, at such place, that such certificate is revoked, and notice shall be given accordingly, and all registrars or consular officers receiving such notice shall record the same, and exhibit the same to all persons applying for a trans- fer under such certificate ; and after such notice has been so recorded such certifi- cate shall, as to any sale at such place, • be revoked ; and the registrar or consular officer recording such notice shall state to the registrar who granted the certificate whether any previous exercise of the power to which such certificate refers has taken place. See the M. S. Act, 1854 (c. 104), s. 83. 24. Transmission by Death, Bankruptcy, or Marriage. 224a. If the property in any ship, or share therein, becomes transmitted in consequence of the death, bankruptcy, or insolvency of any registered owner, or of the marriage of any female registered owner, or by any lawful means other than by a transfer according to the pro- visions of this act, such transmission shall be authenticated by a declaration of the person to whom such property has been transmitted, made in the form marked H. in the schedule. See the M. S. Act, 1854 (c. 104), s. 58. 2246. If such transmission has taken place by the bankruptcy or insolvency of the owner, the declaration shall be ac- companied by evidence receivable in courts of justice of the title of parties claiming under the bankruptcy or in- solvency ; if by the marriage of a female owner, by a copy of the register of the marriage or other legal evidence of the celebration thereof, and by proof of identity ; and if by any testamentary in- strument or by intestacy, then in Eng- land, "Wales, and Ireland, by probate of the will or letters of administration or an official extract therefrom, and in Scot- land or any British possession by the will or any copy thereof, being evidence by the laws of Scotland or of such possession, or by letters of administration or any copy thereof, or by such other document as may, by the laws of Scotland or of such possession be receivable in the Courts of Judicature thereof, as proof of the per- son entitled upon an intestacy. Ibid. s. 59. 225. The registrar upon the receipt of such declaration, so accompanied, enters the name of the person or persons entitled under such transmission in the register book as owner or owners of the ship or share, but such persons, if more than one, shall be considered as one person only as regards the number of persons entitled to be registered as owners. Ibid. s. 60. 226. The words, "by any lawful means other than by a transfer according to the provisions of this act," in sect. 58 of the- M. S. Act, 1854, comprehend only trans- missions of the same nature as those pre- viously enumerated, viz., transmissions by operation of law unconnected with any direct act of the party to whom the pro- perty is transmitted. Chasteauneuf v. Capeyron, L. E. 7 App. C. 127. 227. Held, on appeal from the Mauri- tius, that a sale by licitation of a British ship without a bill of sale, did not create such an interest in the purchasers as to entitle them to be registered as owners. Ibid. 25. Order prohibiting dealing with Ship or Share. 228. In England or Ireland the High Court of Admiralty and the Court of Chancery, in Scotland the Court of Ses- sion, in any British possession any court possessing the principal civil jurisdiction there, may, without prejudice to its other powers, upon the summary application of any interested person, either ex parte or upon service of notice on any other person, as the court may direct, issue an order pro- hibiting, for a time to be therein named, any dealing with such ship or share ; and such court may make or refuse such order, and annex thereto any terms, and dis- charge such order with or without costs, and act in the premises as justice requires ; and every registrar, without being made a party to the proceedings, upon being served with such order, or an official copy thereof, shall obey the same. See M. S. Act, 1854 (c. 104), s. 65, as amended by the Admiralty Court Act, 1861 (c. 10), S. 1 Z. 229. The Court of Probate, as a divi- sion of the High Court of Justice, has vested in it the jurisdiction exercised by the High Court of Chancery, and there- OWNERS. Part I. Title and Registration. 1205 fore may, under the 65th sect, of the M. S. Act, 1854, c. 104, direct an order to issue prohibiting the dealing in any share of a ship for a time, and on conditions to he named therein, and the Registrar of Shipping on being served with such order, or an official copy thereof, must obey the same. Nicholas v. Dracachi, 1 P. D. 72. 230. The expression "any interested person" in the above section refers only to a person possessing that kind of inte- rest which may be affected by proceed- ings under sections 62, 63 and 64 of that act. Sect. 65 is limited by the sections last mentioned. Roy v. Hamiltons, Cases in the Court of Session, 3rd Series, vol. 5, p. 573. [Scotch.] 231. The section is inapplicable to the case of a personal creditor seeking to pre- vent his debtor, a British shipowner, from dealing with a ship, or share of a ship, out of the jurisdiction, belonging to the debtor. Ibid. 232. Applications under the 65th sec- tion of the M. S. Act, 1854, to prohibit any dealing with a ship, can only be made in cases occurring under the 62nd, 63rd and 64thsections (diss. LqrdShand). M'Phail v. Hamilton, Cases in the Court of Session, 4th series, vol. 5, p. 1017. [Scotch.] 233. A part owner cannot apply under the 65th section to restrain his co-owners from dealing with his joint interest. Ibid. 234. This section does not deprive the Court of Chancery of its ordinary juris- diction to protect property during litiga- tion. Orr v. Dickinson, 1 Johnson, 1 ; 5 Jur. N.S. 672 ; 28 L. J. Ch. 516. 26. Non-qualified Owner becoming entitled. Order of Sale. 235. Whenever any property in a ship or share becomes vested by transmission on the death of any owner, or marriage of any female owner, in any person not qua- lified to be the owner of British ships, it shall be lawful, if such ship is registered in England or Ireland for the Court of Chancery, and if in Scotland for the Court of Session, or if in any British pos- session for any court possessing the prin- cipal civil jurisdiction there, upon an application on behalf of such unqualified person, to order a sale of the property so transmitted, aud direct the proceeds, after deducting expenses, to be paid to the per- son entitled under such transmission or otherwise as the court may direct. It is in the discretion of the court to make such order, to annex thereto any terms, and to require any evidence it may think fit. See the M. S. Act, 1854 (c. 104), s. 62. 236. The High Court of Admiralty shall have the same powers over any British ship or any share therein as are conferred upon the High Court of Chan- cery in England by ss. 62—66 of the M. S. Act, 1854. See the Admiralty Court Act, 1861 (c. 10), s. 12. 237. Every such order for sale shall contain a declaration vesting the right to transfer the ship or share in some person or persons named by the court, and such nominee shall be entitled to transfer such ship or share as if he were the registered owner. Every registrar shall obey the requisition of such nominee as to any transfer to the same extent as if he were the registered owner. See the M. S. Act, 1851 (c. 104), s. 63. 238. Every such application shall be made within four weeks after the occur- rence of the event on which such trans- mission has taken place, or within such further time as the court may allow, not exceeding one year, and in the event of no such application being made within such period, or of such court refusing to accede thereto, the ship or share shall be forfeited, as in cases of interests acquired by unqualified owners in ships using a British flag and assuming the British character. Ibid. s. 64. 27. Of Sea-Fishing Boats under Con- vention with France* 239. Subject to any exemptions allowed by Order in Council, every British sea-- * (56) For provisions empowering any British consul m France to take any state- ment on oath from any British subject charged with any offence against the Articles o£ the Convention of the 2nd August, 1839, between this country and France, as to the .fisheries between the two countries, and ren- dering the same admissible in evidence, see 18 & 19 Vict. c. 101, e. 5. (57) For provisions for taking the offend- ing fishing boat into the nearest port; for detaining her there for a period not exceed- ing four days ; for obtaining there evidence on both sides as to the alleged breach ; for transmitting the depositions, minutes of proceedings and other documents relating thereto, duly authenticated, to the consular agent in the port where the trial is to take 1206 OWNERS. Part I. Title and Registration. fishing boat shall, as required by Articles four, five, six, seven and eight of the Convention, be lettered and numbered and have, official papers, and shall for that purpose be entered or registered in a register for sea-fishing boats. See the Sea Fisheries Act, 1868 (c. 45), s. 22. 240. A British sea-fishing boat which is required to be, but is not, entered or regis- tered in pursuance of this act, shall not be entitled to any of the privileges of a British sea-fiShing boat, but all obliga- tions and penalties as to such boat, the punishment of offences committed on board her, or by any persons belonging to her, and the jurisdiction of officers and courts, shall be the same as if such boat ■were so entered or registered. Ibid. 241. If any British sea-fishing boat required to be, but not, entered or regis- tered in pursuance of this act, is used as a sea-fishing boat in the seas to which this act applies, penalty against the owner and master not exceeding twenty pounds ; and any sea-fishery officer may seize and detain such boat and prevent it from going to sea and from sea-fishing until entered or registered, and may, if it is at sea, take it back to the nearest or most convenient British port. Ibid. 242. The 207th section of the Customs Consolidation Act, 1853, shall not apply to any British sea-fishing boat entered or registered in pursuance of this act. Ibid. s. 25. 243. Subject to any exemptions allowed by Order in Council, the master of every sea-fishing boat within the exclusive fishery limits of the British Islands, and of every British sea-fishing boat outside those limits, shall have on board, if it is a British sea-fishing boat required by this act to be entered or registered, the certificate of registry or official papers issued to the boat in pursuance of any act relating to the registry of British, ships, or of this act, and if it is not British, then official papers evidencing the nation- ality of such boat. Ibid. s. 26. 244. Penalty against the master, un- less reasonable cause shown (proof of which shall lie on him), with his boat and crew, not exceeding £20, and he may be taken by any sea-fishery officer into the nearest or most convenient port. If such penalty is not paid, and the boat is not British, such boat maybe detained in port not exceeding three months from the date of the sentence. Ibid. 245. No fishing vessel duly registered, lettered and numbered, under the Sea Fisheries Act, 1868, is required to have her name and port of registry marked under this section. See M. S. Act, 1873, s. 3. 246. See for Orders in Council under the Sea Fisheries Act, 1868, 2 Maude & Poll. 4th ed. by Poll. & Bruce, pp. 97, 103, 104, 190; Orders dated respectively the 18th June, 1869 ; the 23rd Oct. 1877 ; the 7th Oct. 1869 ; the 26th Feb. 1880. 247. For further regulations as to let- tering, see Order in Council, Feb. 26, 1880. 248. For regulations for lettering, num- bering, and registering of British sea- fishing boats under Pt. II. of Sea Fishe- ries Act, 1868 (c. 45), see Order in Council of Oct. 23rd, 1877. 249. For additional regulations thereon for lettering, numbering, and registering of British sea-fishing boats under Sea Fish- eries Act, see Order in Council of May 3, 1882. 250. See further as to the conventions with France and Sea Fishery Acts, Pt. II. c. 14, p. 1238. 4. Effect of Registration. 1. .Generally. 251. The registry of a ship is conclu- sive as to its being in a fit state to be registered, although there may be evi- dence to show that the ship was not completed at the time of the registry. Coombes v. Mansfield, 3 Drew. 193. 252. No notice of any trust, express or implied, shall be entered in the register book, and subject to any rights appear- ing by the register book to be vested in any other party, the registered owner of place ; for the communication thereof to the collector of customs or minister of marine, and for his proceeding, if necessary, with the trial, see 6 & 7 Vict. c. 79, ss. 11, 12 ; and. Arts. 65 — 69 of the Convention. (58) The 6 & 7 Vict. c. 79, is repealed by the Sea Fisheries Act, 1868 (c. 45) (see s. 71 and the second schedule thereto), but is re- vived by the Fisheries (Oysters, Crabs and Lobsters) Act, 1877 (c. 42), s. 15, until the day when the Convention of the 11th Nov. 1867, set out in the schedule to the Sea Fishe- ries Act, 1868, comes into operation. The Convention has not yet (July, 1885), come into operation. (58a) For provisions of the United States for the regulation of fisheries, see Eevised Statutes of United States, ss. 4291—4398. OWNERS. Part I. Title and Registration. 1207 any ship or share therein shall have power absolutely to dispose thereof. See the M. S. Act, 1854 (c. 104), s. 43. 253. Semble, that the 43rd section of the M. S. Act, 1854, was enacted to obviate the question how far purchasers fixed with notice that the registered owner was a trustee as executor, or for a firm or corporation, would he affected by that fact. Liverpool Borough Bank v. Turner, 1 Johns. & H. 171 ; 3 L. T. N.S. 84, 494; 2 De G. F. & J. 502; 7 Jur. N.S. 150 ; 30 L. J. Ch. 379 ; 8W.E. 292. 254. Shares in ships registered under the M. S. Act, 1854, shall be deemed included in the word " stock," as defined by the Trustee Act, 1850, and the provi- sions of that act are applicable to such shares. See the M. S. Act Amendment Act, 1855 (c. 91), s. 10. 255. As to the effect of the registered title as concluding the vendor and vendee, as well as third persons, both at law and in equity, under the M. S. Act, 1 854, and prior acts before the M. S. Act Amend- ment Act, 1862, s. 3, see Liverpool Borough Bank v. Turner, 1 Johns. & H. 159, 165, 171 ; 2 De G. P. & J. 502 ; 3 L. T. N.S. 84, 494; 7 Jur. N.S. 150; 30 L. J. Ch. 379 ; 8 W. E. 292 ; Wilson v. Heather, 5 Taunt. 642 ; Bland v. Graves, 1 Madd. (notis) 399 ; Ex parte Bulteel, 2 Cox, 243 ; Boyson v. Gibson, 4 C. B. 121 ; Langton v. Horton, 5 Beav. 1 9 ; Ex parte Yallop, 15 Ves. 60; Curtis v. Perry, 6 Ves. 739; Mestaerv. Gillespie, 11 Ves. 621 ; Thomp- son v. Drake, 1 Mad. 39 ; Ex parte Hough- ton, 17 Ves. 253; Hibbert v. Rolleslon, 3 T. E. 406 ; 3 Bro. C. C. 571 ; Camden v. Anderson, 5 T. E. 709 ; 'Cato v. Irving, 5 De G. & S. 210 ; Follett v. Delany, 2 ibid. 235 ; 12 Jur. 549; 17 L. J. Ch. 254 ; 22 ibid. 554 ; Brewster v. Clarke, 2 Mer. 75 ; Dixon y. Ewart, 3 Mer. 222; McCalmont v. Rankin, 2 De G. M. &G. 403; The New Draper, 4 C. Eob. 291 ; Speldt v. Lechmere, 13 Ves. jun. 589; Thompson v. Leake, 1 Madd. 39, 44 ; Moss v. Char- nock, 2 East, 399 ; McLarty v. Middleton, 9 W. E. 861 ; 4 L. T. N.S. 852 ; Barker v. Chapman, 1 Madd. 400 {notis) ; Morton v. Black, 5 D. 411 ; Ordr. Barton, July 3, 1846 ; 8 D. 1011; 18 Jur. 505 ; Mc Arthurs v. McBrair and Johnstone's Tr., June 20, 1844; 6 D. 1174; 16 Jur. 513; Duffus v. Mackay, 19 Court of Sess. Cas. 430 [Scotch]. Thompson v. Smith, 1 Madd. 395 ; Ex parte Matthews, 2 Ves. 272. 256. And in regard to contracts of sale under the repealed 8 & -9 Vict. c. 89, see Hughes v. Morris, 2 De G. M. & G. 349 ; 19 L. T. 210 ; 9 Hare, 636 ; 21 L. J. Ch. 761 ; Duncan v. Tindall, 17 Jur. 347 ; 22 L. J. Ch. 554; 8 Hare, 1; 14 Jur. 475; 19 L. J. Ch. 215; 13 C. B. 258; 22 L. J. C. P. 137; The New Draper, 4 C. Eob. 291 ; Biddell v. Leader, 1 B. & C. 327 ; 2 D. & E. 499; Kain v. Old, 2 B. & C. 627 ; 4 D. & E. 52 ; Cole v. Perkin, 12 East, 471. 257. But see contra (even prior to the M. S. Act Amendment Act, 1862 (c. 63), s. 3, and by courts of common law as well as equity), Holderness v. Lam- port, 29 Beav. 129; 7 Jur. N.S. 564; 30 L. J. Ch. 489 ; 9 "W. E. 327 ; Orr v. Dickinson, 1 Johns. & H. 1 ; 5 Jur. N.S. 672; 28 L. J. Ch. 516; The Australia, Swabey, 483 ; 13 Moore P. C. C. 132 ; 7 W. E. 718; Carlyle v. Macalpine Trus- tees, 3rd Series, vol. 2, p. 882 [Scotch] ; Bell v. Bank of London, 3 H. & N. 730 ; 28 L. J. Exch. 116; Reid v. Fairbanks, 13 C. B. 692 ; 21 L. T. 166 ; 17 Jur. 918 ; 22 L. J. C. P. 206 ; European, Sfc. Co. v. Royal Mail, $c. Co., 4 K. & J. 686 ; Gardner v. Cazenove, 1 H. & N. 423 ; The Virtue, 1 Spinks' Eccl. and Adm. Eep. 78 ; 17 Jur. 843; Armstrong v. Armstrong, 21 Beav. 78 ; 1 Jur. N.S. 859 ; 24 L. J. Ch. 659. 257a. And where fraud was used to prevent the provisions of the Eegistra- tion Act being complied with, see Mestaer v. GiUespie, 11 Ves. 628; Coombes v. Mansfield, 3 Drewry, 200; 1 Jur. N.S. 270 ; 24 L. J. Ch. 513 ; Prouting v. Ham- mond, 8 Taunt. 688. 258. As to the effect of the amending act in the case of an innocent purchaser for value, see The Horlock, 2 P. D. 248 ; 47 L. J. P. D. 5. 259. And in cases of claims by foreign- ers in the Prize Court, see The Nostra Senora de los Dolores, 1 Dodson, 296. 260. As to the effect of non-registration of mortgage, see tit. Mortgage, c. 4, s. 7, p. 1138. 2. Equities. 261. Without prejudice to the provi- sions for preventing notice of trusts from being entered in the register book, to the powers of disposition, and giving receipts, conferred by the act on registered owners and mortgagees, and to the provisions contained in the act for excluding un- qualified persons, equities may be en- forced 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 1208 OWNERS. Part I. Title and Registration. other personal property, see the M. S. Act Amendment Act, 1862 (c. 63), s. 3, and Wardr. Beck, 32 L. J. 0. P. 113. . 262. A person who had paid a deposit for purchase of a share, but was not a registered owner, was held to be an owner within the meaning of sect. 1 47 of the M.S. Act, 1854 (c. 104). Hughes v. Sutherland, L. E. 7 Q. B. D. 160; 50 L. J. Q. B. 567; and in reference to unregistered mort- gages, see tit. Mortgage, c. 4, p. 1138. See also c 8, s. 4, p. 1216. 3. Beneficial Interests. 263. The expression " beneficial in- terests," whenever used in the second part of the M. S. Act, 1 854, includes interests arising under contract and other equitable interests. See the M. S. Act Amendment Act, 1862 (c. 63), s. 3. 264. The "beneficial interests" con- templated by the 38th section of the M. S. Act, 1854, are the equitable rights pro- vided for by sects. 62, 63 and 64 of the same act, which enable an unqualified owner entitled by transmission to apply to the Court of Admiralty and other courts therein mentioned for an order of sale of the ship. The Liverpool Borough Bank v. Turner, 1 Johns. & H. 172; 3 L. T. N.S. 84, 494 ; 6 Jur. N.S. 935 ; 29 L. J. Ch. 827 ; 8 W. E. 730 ; 2 De G. P. & J. 502. See also Ex parte Yallop, 15 Ves. 60. 265. The words " by any lawful means other than a transfer according to the provisions of this act" in the M. S. .Act, 1854, s. 58, do not apply to a con- tract for the sale of a ship, and therefore do not furnish a sufficient argument that the legislature intended to permit any transfers others than such as are in ac- cordance with the provisions of that act. Ibid. 1 Johns. & H. 174 ; Liverpool Bo- rough Bank v. Turner, supra. 6. Registration anew. 266. "When a ship has ceased to be regis- tered as a British ship by reason of her having been wrecked or abandoned, or for any reason other than capture by the enemy or transfer to a person not qualified to own a British ship, such ship is not to be re-registered till she has been duly surveyed by the Board of Trade sur- veyors, and certified to be seaworthy. See the M. S. Act, 1873 (c. 85), s. 6. 267. If, upon any change of ownership in any ship, the owners desire to have her registered anew, the registrar of her port of registry, on such requisites to re- gistry, as he thinks material, being com- plied with, may make such registry anew, and grant a certificate thereof. See the M. S. Act, 1854 (c. 104), s. 88. 268. When a ship, once registered, has ceased to be so registered, no person, un- less ignorant of such previous registry, proof of which shall lie on him, shall apply to the registrar to register ; and no registrar shall register such ship except by the name by which she was previously registered, unless with the permission of the Board of Trade. Penalty for breach not exceeding £100 ; and any principal officer of customs may detain the ship until the provisions of this section are complied with. See the M. S. Act, 1871 (c. 110), s. 6. 269. When a registered ship is so- altered as not to correspond with the entry in the register book, on failure to register such alterations or register the ship anew, as may be required, the ship is deemed not duly registered, and no longer recognized as a British ship. Rid. s. 87. 270. When a ship is sold by a certifi- cate of sale to a party qualified to hold British ships, the ship shall be registered anew ; but notice of all mortgages on the certificate of sale shall be entered in the register book. Previously to such registry anew there shall be produced to the regis- trar the bill of sale by which the ship is transferred, the certificate of sale, and the certificate of registry. See M. S. Act, 1854 (c. 104), s. 81, sub-ss. 6 and 7. 271. On such registry anew the de- scription of the ship (sold by a certificate of sale) contained in her original certifi- cate of registry may be transferred to the new register book, without her being re- surveyed, and the declaration by the purchaser shall be the same as would be required to be made by an ordinary trans- feree. Ibid, sub-s. 9. _ 272. As to registration anew on altera- tion of ship, see c. 3, s. 19, p. 1200. 6. Surveyors. 1. Generally. 273. The Board of Trade, with the sanction of the Treasury, may appoint surveyors for the survey and measure- ment of ships, and make the requisite regulations for such purpose. See the M. 8. Act, 1854 (c. 104), s. 29, as amended- by the M. S. Act, 1872 (c. 73), s 3 OWNERS. Part I. Title and Registration. 1209 274. All duties as to the survey and measurement of ships under the M. S. Act, 1872, and the acts amended thereby, are to be performed by the surveyors ap- pointed under the fourth part of the M. 8. Act, 1854, in accordance with regula- tions of the Board of Trade. Ibid. (c. 73), s. 13. 275. The surveyors are to execute their duties under the direction of the Board of Trade, and the Board are to make regulations as to the surveys, the notice to be given to the surveyors when surveys are required, &c. See M. S. Act, 1854 (c. 104), s. 307. 276. As to shipwright and engineer surveyors, their appointment, powers, duties and remuneration in reference to the survey of passenger steamers, see Pt. IV. c. 12. 2. Powers. 111. The surveyors may, in the exe- cution of their duties, go on board any steamer at all reasonable times, and in- spect any part thereof, or any of the machinery, boats, equipments or articles on board, or any certificates of the master or mate under this act, not unnecessarily detaining or delaying the ship ; and, if for any reason they consider it necessary so to do, may require the ship to be taken into dock to survey her hull. Pe- nalty against any person impeding the surveyor in the execution of his duty not exceeding £5. See M. S. Act, 1854 (c. 104), s. 306. 278. 3. Impeding — . See above, No. 277. 4. Withholding Information from — . 279. Penalty not exceeding £5 against every owner, master and engineer of any ship to be surveyed, wilfully refusing or neglecting to give, on demand, to the surveyors such information and assistance, within his power, as they require for the purpose of making returns to the Board of Trade. Ibid. s. 321. 5. Fees and Expenses* 280. As to the payment by the Treasury of the salaries and expenses of all sur- veyors appointed under the M. S. Acts, 1854 to 1876, and persons employed under the Passengers Act, 1855, out of moneys provided by parliament, and the control by the Treasury over such salaries and * (59) As to the fees and expenses to be charged in respect of surveys of ships for measurement of tonnage, for inspection of crew spaces, for inspection of lights and fog signals, for inspection prior to marking, for survey for change of name, for survey of a vessel alleged to ds unseaworthy, for survey of a vessel prior to re-registry where the British registry has been previously closed, for survey of a vessel before transfer to a foreign flag, for passenger certificates, for in- spection of drawings of boilers, for surveys under the Passenger Acts, and for medical inspection of passengers and crew under the Passenger Acts, see Board of Trade Instruc- tions of October, 1879, Circular 756 0. (60) As to the travelling and personal ex- penses and overtime fees of medical inspectors and the different classes of surveyors, and the charges for tapeholders and messengers, see Ibid. p. 12. (61) Personal expenses are only to be claimed in cases where surveyors have to proceed to some place out of the limits of their port (as defined by the Customs regu- lations), and are absent for the time stated. Ibid. p. 13. (62) Whenever surveyors are called upon to perform services out of office hours, appli- cation should be made by the owners or their agents to the principal officer of the Board p. of Trade for the district, or the senior sur- veyor of the port, on the form headed " Surveys 22." The necessary fee, according to the scale, should then be paid to the super- intendent of the Mercantile Marine Office. See as to such fees, Ibid. (63) As to overtime fees of a medical in- spector, see Ibid. (64) If the usual three clear days' notice has been given of a survey or inspection, and the official arrangements have not allowed of the work being done within office hours, no overtime fee is chargeable. Ibid. p. 14. (65) Except in the case of a survey of a vessel alleged to be unseaworthy, all fees must invariably be paid to the superin- tendent of the Mercantile Marine Office be^ fore the survey and prior to proceeding with the duty in respect of which they are charged. Payments are in no case to be made to the surveyor himself. Ibid. (66) "When, upon inspection, a vessel alleged to be unseaworthy is found to be seaworthy, no fee is chargeable. Ibid. p. 10. (66a) "When a survey is made by direction of a magistrate or magistrates, in any case of alleged unseaworthiness or otherwise, under the provisions of the M. S. Act, 1871, upon the complaint of the crew of the vessel, the charge is regulated by the Board of Trade. Ibid. p. 11. 4 i 1210 OWNERS. Part I. Title and Registration. expenses heretofore vested in the Board of Trade, see M. S. Act, 1876 (c. 80), s. 39. 281. For the fees to be paid in.respect of measurement, survey and inspection of merchant vessels, and of lights and fog signals, see the M. S. Act, 1873 (c. 85), s. 30, and Schedule 3 thereto. 282. The costs, if any, of the survey of a ship (in consequence of a charge made by seamen in defence that the ship is unseaworthy, or that her accommodation is insufficient) shall be determined by the Board of Trade, according to the scale of fees to be fixed by them, and shall be paid, in the first instance, out of the Mer- cantile Marine Fund. See M. S. Act, 1871 (c. 110), s. 7. 283. If the charge is not proved the costs of the survey shall be paid by the person in consequence of" whose allegation the survey wa3 made, and may be deducted out of the wages due or to become due to him, and paid over to the Board of Trade. If the charge is proved, the costs of the survey shall be paid to the Board of Trade by the master or owner. Ibid. 284. The Board of Trade are to mate regulations as to the amount and pay- ment of the surveyor's travelling or other expenses, and the persons by whom, and the conditions under which, such payment shall be made. See M. S. Act, 1854 (c. 104), s. 307. 285. Against every surveyor who de- mands from the owner or master of any ship surveyed by him, under this act, any remuneration other than as directed by the Board of Trade, a penalty not ex- ceeding £50. Ibid. s. 308. 286. For provisions that no surveyor or person employed under the authority of the Passengers Act, 1855, shall receive any fee or remuneration in respect of his duties, otherwise than by direction of the Board of Trade, and penalty for breach not exceeding £50, see M. S. Act, 1872 (c. 73), s. 15. 287. All fees payable in respect of the survey and measurement of- ships under the M. S. Acts, 1854 to 1876, and in re- spect of any services performed by any person employed under the authority of the Passengers Act, 1855, are payable to the superintendent of a mercantile marine office, according to the directions of the Board of Trade, and carried to the Con- solidated Fund, s. 39. See M. S. Act, 1876, 7. Certificate of Registry. 1. Generally.* 288. Upon the completion of the regis- try of any ship the registrar is to grant a certificate of registry in the form marked D. in the schedule. See M. S. Act, 1854 (c. 104), s. 44. 289. The copy or transcript of the re- gister of any British ship, kept by the registrar-general of shipping and seamen, has the same effect to all intents and pur- poses as the original register. See the M. S. Act Amendment Act, 1855 (c. 91), s. 15, as amended by the M. S. Act, 1872 (c. 73), s. 4. 290. The register, flag and pass of a vessel carry with them a presumption that they are true and correct, and the owner is not at liberty to aver against them. The Laura, 2 Asp. M. C. 225 ; 3 Moore, P. O. N.S. 181 ; 12 L. T. N.S. 685; and No. 304a. 29 1 . A certified copy of a ship's register was put in evidence in a criminal trial to prove that the ship, which sailed under the British flag, was British. Held, by the Court for Crown Cases Reserved that the register was primd facie evidence that the ship was British, but that this pre- sumption was rebutted by the negative proof that the owner was alien born, and that it could not be presumed without evidence that letters of denizenship or naturalization had been granted to the owner. Reg. v. Bjornsen, 34 L. J. M. 0. 180; 2 Asp. 210; 1 L. & C. 545. 292. A register is not a document re- quired by the law of nations, as expressive of a ship's national character. Le Chemi- nant v. Pearson, 4 Taunt. 367. 293. Although it was the intention of the legislature, in passing the Registry Acts, to form a public record of the pro- perty in British ships, yet it is a clear proposition that persons who are merely named as owners in the ship's register are not liable as such, for these docu- ments are not recognized as conclusive evidence of ownership, unless shown to have been made by the concurrence of, or recognized by, the owners. Cooper v. South, 4 Taunt. 802; 2 ibid. 5, 302; 14 * (67) It is now no longer necessary, for any purpose of title, to indorse upon the certi- ficate of registry the particulars of the trans- fer by bill of sale. OWNERS. Part I. Title and Registration. 1211 East, 226; 2 Camp. 176; 3 ibid. 456; 2 Park on Ins. 861. 2. New Certificate. 294. The registrar may, with the sanc- tion of the . Commissioners of Customs, upon the delivery to him of the former certificate of registry, grant a new certi- ficate in its stead. See M. 8. Act, 1854 (c. 104), s. 47. 3. Alteration of Ship. 295. See c. 3, s. 19, p. 1200. 4. Indorsement of Change of Owners. 296. "Whenever a change takes place in the registered ownership of any ship, if it occurs at a time when the ship is at her port of registry, the master shall forthwith deliver the certificate of regis- try to the registrar, who shall indorse thereon a memorandum of such change ; hut if it occurs during the absence of the ship from her port of registry, then upon her first return thereto the master shall deliver the certificate to the registrar, who shall indorse thereon a like memo- randum of the change; or if she pre- viously arrives at any port where there is a British registrar, such registrar shall, upon being advised by the registrar of her port of registry of the change, indorse a like memorandum thereof on the certi- ficate of registry, and may for that pur- pose require the certificate to be delivered to him, so that the ship be not thereby detained. Penalty for breach against master not exceeding £100. See the M. S. Act, 1854 (c. 104), s. 45. 5. Indorsement of Change of Master. 297. "Whenever the master of any British registered ship is changed, if the change is made in consequence of the sentence of any Naval Court, the pre- siding officer of such court, but if the change takes place from any other cause, the registrar, or, if no registrar, the British consular officer resident at the port, shall indorse and sign on the certifi- cate of registry a memorandum of such change, and forthwith report the change of master to the Registrar-General of Shipping and Seamen in London; and the officers of customs at any port situate within her Majesty's dominions may re- fuse to admit any person to do any act at such port as master of any British ship, unless his name is inserted in or indorsed upon the certificate of registry as the last appointed master. See M. S. Act, 1854 (c. 104), s. 46, as amended by the M. S. Act, 1872 (c. 73), s. 4. 6. Provisional Certificates or Passes. (a) Generally. 298. In the event of the certificate of registry of any ship being mislaid or destroyed, if such event occurs at any port in the United Kingdom, the ship being registered there, or at any port in any British possession, the ship being registered there, then the registrar of her port of registry shall grant a new certifi- cate of registry in lieu of the original; but if such event occurs elsewhere, the master or other person having knowledge of the circumstances shall make a decla- ration before the registrar of any port having a British registrar at which such ship is at the time or first arrives after such mislaying or destruction ; and such declaration shall state the facts of the case, and the names and descriptions of the registered owners of such ship, to the best of the declarant's knowledge and belief ; and the registrar shall thereupon grant a provisional certificate as near to the form appointed by this act as circum- stances permit, and shall insert therein a statement of the circumstances under which such provisional certificate is granted. See M. S. Act, 1854(c. 104), s.48. 299. Every such provisional certificate shall, within ten days after the first sub- sequent arrival of the ship at her port of discharge in the "United Kingdom, if registered there, or if registered else- where, at her port of discharge in the British possession within which her port" of registry is situate, be delivered up to the registrar thereof, who shall thereupon ^ grant a new one, as near to the form ap- pointed by this act as circumstances per- mit. Penalty for breach against master not exceeding £50. Ibid. s. 49. 300. If any ship becomes the property of persons qualified to be owners of" British ships at any foreign port, the British consular officer resident there may grant the master a provisional cer- tificate, stating — The name of the ship ; The time and place of her purchase, and the names of her purchasers ; The name of her master ; 4 i2 1212 OWNERS. Part I. Title and Registration. The best particulars as to her tonnage, build and description, that he is able to obtain. And he shall forward a copy of such cer- tificate, at the first convenient opportu- nity, to the Eegistrar-General of Shipping and Seamen in London; the certificate so granted shall possess the same force as a certificate of registry until the expiration of six months, or until such earlier time as the ship arrives at some port where there is a British registrar, but shall then be void. See the M. S. Act, 1854 (c. 104), s. 54, as amended by the M. S. Act, 1872 (c. 73), s. 4. 301. In cases where it appears to the Commissioners of Customs, or to the governor or other person administering the government of any British posses- sion, that by reason of special circum- stances it would be desirable that per- mission should be granted to any British ship to pass, without being previously registered from one port in her Majesty's dominions to another, they may grant a pass, which shall for the time and within the limits therein mentioned have the same effect as a certificate of registry. See the M. S. Act, 1854 (c. 104), s. 98. (b) In British Possessions. 302. The governor or officer adminis- tering the government of any British possession may, with the approval of one of her Majesty's Secretaries of State, make regulations providing that on an application for registration under the M. S. Act, 1854, in that possession, of any ship not exceeding sixty tons burden, the registrar may grant, in lieu of a cer- tificate of registry, as required by that act, a certificate of registry terminable at * (68) The earlier acts, now repealed, con- taining similar provisions, are 34 Geo. 3, c 68 ; 6 Gteo. 4, c. 110 ; 3 & 4 Will. 4, c. 55 ; and 8 & 9 Vict. c. 89. The following are cases under these acts : — 1. The 34 Geo, 3, c. 68, s. 18, which con- tained a similar clause to that of the M. S. Act, 1854(e. 104),s.50,butinwhichtheexpres- Bion used is " shall wilfully detain," held, not to authorize a conviction of a master who did not comply with the requisition of the owner (though the sole owner) to deliver up such certificate to him, though expressed to be for the purpose of procuring the necessary in- dorsement to be made on it at the custom- house upon the transfer of the ship to him. Rex v. Pisstey, 13 East, 91. the end of six months or a longer period. All such certificates shall be in such form and on such conditions as the regulations prescribe. See the Colonial Shipping Act, 1868 (c. 129), s. 1. 303. This act is to be read as one act with the M. S. Act, 1854, and the acts amending it. Ibid. s. 4. 304. Any ship to which a certificate is granted under any such regulations shall, while such certificate is in. force, and in relation to all things done or omitted during that period, be deemed a registered British ship. Ibid. s. 2. 304a. The appellant, a native of the Ionian Islands, purchased an American ship, and, upon a declaration that he was a British subject, obtained from a British consul at Cuba a provisional registry of the ship as British. The ship was after- wards seized and condemned for a breach of the Slave Trade Acts. Upon a preli- minary objection taken on appeal to the jurisdiction of the court below, on the ground of the national character of the owner of the ship and cargo, held, first, that the registry flag and pass of a ship carry with them the presumption that they are true and correct, and that the owner was estopped from proving that he was not a British subject; and, secondly, that even if he could have esta- blished that the registry was void, and the ship not entitled to claim the protec- tion of any flag or nation, yet that the ship was, by the statute 2 & 3 Vict. c. 73, liable to be adjudicated upon by a Vice- Admiralty Court for a violation of the Slave Trade Acts. The Laura, 3 Moo. P. C. C. N.S. 181. 7. Custody* 305. The certificate of registry is to 2. Under 6 Geo. 4, c. 110, s. 27, and 3 & 4 Will. 4, c. 55, s. 27, a conviction for detain- ing the certificate of a ship's registry was bad, unless it stated the purpose for which the certificate was wanted, and that the per- son who demanded it was the proper officer. Rex v. Walsh, 1 A. & E. 481 : 3 N. & M. 632. 3. A. commissioned B. to sell a ship for him, and having deposited her register with him for that purpose, became bankrupt. Held, that B. had a lien on the register against the assignees of A. for the amount of his demand against A., consisting partly of charges incurred on the ship's account, and partly of other charges, and that this was not such a transfer of the property as to- OWNERS. Part I. Title and Registration. 1213 be used only for the lawful navigation of the ship, and is not subject to deten- tion by reason of any title, lien, charge, or interest which any owner, mortgagee, or other person may claim to have in the ship, and if any person refuses on request to deliver up the certificate when under his control to the person entitled to the custody thereof, or to any registrar, officer of the customs, or other person entitled to require such delivery, any justice or court capable of taking cog- nizance of such matter may cause the person so refusing to appear before him ; and unless it is proved that there was reasonable cause for such refusal, the offender shall incur a penalty not exceed- ing £100 ; but if it appears that the cer- tificate is lost, the party complained of shall be discharged, and the justice or court shall certify that the certificate of registry is lost. See the M. 8. Act, 1854 (c. 104), s. 50. 306. If the person charged with such detainer or refusal is proved to have ab- sconded, so that the warrant or process cannot be served upon him, or if he per- sists in his refusal, the justice or court is to certify the fact, and the same proceed- ings may then be taken as in the case of a certificate of registry mislaid or de- stroyed, or as near thereto as circum- stances permit. Ibid. s. 5 1 . 307. For provisions, on the sale of a ship abroad under a certificate of sale, for the certificate of registry to be de- livered to the registrar registering such sale, and forwarded by him to the regis- trar of the former port of registry of the ship (penalty for default not exceeding £100), Ibid. s. 81. 308. For provisions, if any registered ship is taken as prize, burnt, broken up, or lost, or ceases to be a British ship, for notice thereof to be given by the owner to the registrar at her port of registry, and the certificate of registry, unless lost or destroyed, to be given up by the master to the registrar at the first port at which he arrives (penalty not exceeding £100 for default by master and owner), Ibid. s. 53. 309. For provisions for delivery up of the certificate of registry to the registrar of either port on change of port of registry, see Ibid. s. 88, and the M. S. Act Amend- ment Act, 1855 (c. 91), s. 12. 310. Under sect. 50 of the M. S. Act, 1854, a pledge by a master and sole owner of a ship of the certificate of registry, though for a good and sufficient conside- ration, is illegal and void ; and therefore an action will lie by the master and sole owner against the person detaining it after a demand made upon him to return it for the purposes of navigation. Wiley V. Crawford, 1 El. B. & S. 253, 265 ; 6 Jur. N.S. 296 ; 7 Ibid. 943 ; 2 L. T. N.S. 297 ; 4 Ibid. 653 ; 8 1.E. 662 ; 9 Ibid. 741 ; 1 Asp. 101 ; 29 L. 1. Q. B. 244 ; 30 Ibid. 319; 6 Jur. N.S. 1290; 7 Ibid. 943. 311. The Court of Admiralty will grant a monition, at the suit of an owner hav- ing the majority of interest, to show cause why the ship's register should not be de- livered to him. The Frances, 2 Dodson, 422. See also Anon. 2 Chit. 359 ; 3 D. & E. 178, n. 312. Motion, at the suit of a bottomry bondholder for an order against A. (the purchaser of the ship under a sale from the original owner since her arrival in port, and which sale was asserted to be a collusive one to defraud the bondholder), to deliver up the ship's register, granted. A. made a return that he had deposited the register with B. Order to the same effect decreed against B., who thereupon delivered up the register. The Barbara, 4 C. Eob. 2. 313. An American vessel having been sold under a decree of the court in a cause of bottomry, motion for an order against the American consul to bring in the ship's register, which had been de- livered to him by the master subsequently to the arrest of the ship, rejected as un- necessary to perfect the purchaser's title. The Tremont, 1 W. Eob. 163. 314. The owner of a ship consigned her bring the case within the meaning of the Eegister Acts. Mestaer v. Atkins, 1 Marsh. 76; 5 Taunt. 381. 4. "Where the certificate of a ship's register has been deposited as a security for advances for the use of the ship, held, that this gives the holder a sufficient lien to defeat an action of trover for the certificate. Bowen v. Fox, 10 B. & 0. 41; 5 M. & E. 5; 4 Car. & P. 452, 5. Where a factor for the owner of a ship at an English port had, by a request to the master, obtained the certificate of registry for the alleged purpose of paying the tonnage duties at the custom-house, held, that he had no lien on the certificate so obtained for the general balance due to him in respect of the ship. Burn v. Brown, 2 Stark. 272, 1214 OWNERS. Part I. Title and Registration. to persons abroad, who hypothecated her, and directed the master to sign a bot- tomry bond. On her arrival in London he, by their direction, delivered the re- gister to the defendant (the agent of the consignees), who gave it to their solicitor to institute proceedings in the Court of Admiralty on the •bottomry bond. The Ship was sold by order of that court, and the register decreed to be given up to the purchaser. The owner became bankrupt, and his assignees brought an action of trover for the register. Held, that they could not recover, as they might have ap- peared in the Admiralty Court and pre- vented the sale of the vessel, and as the delivery of the register to the purchaser under the decree of that court was not a conversion. Hassack v. Masson, 4 Moore, 361. 315. After a ship had arrived at the port of discharge, but before it was dis- charged, the owner demanded the certi- ficate of registry from the master, intend- ing to dismiss • him, but not communicat- ing that intention to him. Held, that the master was not liable to be convicted, under sect. 50 of the M. S. Act, 1854, for refusing to deliver up the certificate. Arlle v. Henzell, 8 El. & Bl. 828 ; 4 Jur. N.S. 306; 27 L. J. M. C. 110. _ 316. A vendor of a ship, with a cove- nant for title, retains, after the sale (in order that he may fulfil his contract, and defend himself against an action brought upon his covenant), such an interest in the certificate of registry as enables him to sustain a suit for its delivery against a party unlawfully detaining it. Gibson v. Ingo, 6 Hare, 112. 317. A master has no lien on the certi- ficate of registry, either for his wages or for moneys disbursed by him for the use of the ship, nor have shipbrokers any lien on the certificate of registry for ad- vances made by them to the owner for the use of the ship. Ibid. 318. A master, who was also part owner, having been dismissed by the managing owner, refused to surrender the certificate of registry and other papers and keys of the vessel. On security being given for any damages that might accrue from the order, the court ordered the master to deliver up to his co-owners the register and other articles. The St. Olaf, 3 Asp. N.S. 268. 319. A master, whether co-owner or not, has no lien on the ship's papers, in case of wrongful dismissal by the manag- ing owner. Ibid. 8. Use of improper Certificate. See Pt. II. c. 18, s. 9, p. 1244. 9. Evidence. 319a. As to evidence of certificates of registry, see tit. Evidence, c. 16, s. 12, p. 440, and ibid, in Addenda. 8. Sale of Ship. 1. Generally.* 320. A bill of sale is the proper title to which the maritime courts of all countries look. It is the universal instrument of transfer of ships in the usage of all mari- time countries, and in no degree a pecu- liar title deed or conveyance known only to the law of England. It is what the maritime law expects, what the Court of Admiralty would in its ordinary practice always require, and what the legislature has made absolutely necessary by statute. The Sisters, 5 C. Eob. 155. 321. A bill of sale of a ship, though in form absolute, may operate at law only as a mortgage. Gardner v. Cazenove, 1 H. & N. 423 ; 26 L. J. Exch. 17. 322. The bill of sale entirely divests the title of the vendor. Immediately on the execution of the bill of sale, the vendee becomes entitled to all the benefits of ownership, and he takes with them all the concurrent liabilities. The Spirit of the Ocean, 34 L. J. Adm. 74; 12 L. T. N.S. 239. 323. To complete the delivery of a vessel to a purchaser, he must have the control of the vessel given him, but he need not be put into the manual posses- sion of it ; though he must be able to * (69) See also Instructions to Consuls, 1856, pp. 134 et seq. (70) As to the validity of the purchase of a ship from pirates bond fide, and in ignorance of her piratical character, and of the pur- chase of ship or goods generally from such parties, see Introduction to Oodolphin's Adm. Jur. (71) Courts of Admiralty have no juris- diction to entertain a libel for a speoific per- formance of an executory contract of sale. The S. O. Ives, 1 Newb. Adm. 205. [Ameri- can.] OWNERS. Part I. Title and Registration. 1215 direct where the vessel shall go, what it shall do, what performances it shall be required to undertake, in fact, to have exactly the same control over it as exists with respect to any other chattel which is sold and delivered to a purchaser. Burke v. Rogerson, 2 Asp. 266. And see this case on appeal, 2 Asp. 375. 324. A defendant in execution, being a registered proprietor of shares in a ship, a/ fa. was delivered to the sheriff; and the solicitor for the creditor, by the direc- tion of the sheriff, procured the certificate of registry from the ship, and delivered it to the sheriff, who retained it. The sheriff was registered at the custom house, under the M. S. Act, as the owner of the shares, which were afterwards sold by him and transferred to the purchaser by a bill of sale, which was also registered. Held, that the seizure was effectual, although the sheriff did not go on board the ship, and that the property in the shares was regularly transferred by the bill of sale. Harley v. Harley, 11 Ir. Ch. Eep. 451. 325. Proceeds of a cargo sold abroad and transmitted from a Vice-Admiralty Court to the registry of the High Court of Admiralty, decreed on motion to be paid out to the respective consignees of the cargo, on the consent of the purchaser of the cargo. The Lady Banks, 1 Hagg. 306. 326. On the 7th November, a foreigner purchased a British vessel, receiving pos- session thereof, and paying a deposit. It was stipulated that the balance was to be paid on receipt of transfer. On the 11th November, the vessel was detained by the Board of Trade, under the 12th section of the M. S. Act, 1873 (c. 85). On the 20th November, the balance of the purchase- money was paid, and a bill of sale (dated the 8th November) was delivered. On the 5th December, the British register was closed. Held, that the transfer was not completed until the 20th November, and that the vessel was a British ship at the date of its detention on the 11th November. Granfelt v. Lord Advocate, Cases in the Court of Session, 4th Series, vol. 1, p. 782. [Scotch.] 327. Whatever equitable rights may be raised between an owner and a pur- chaser, there is nothing but an actual transfer by bill of sale, entered on the register, which can effect a change in the nationality of a ship. — Per Lord Aril- millan. Ibid. 328. An order of detention, under sect. 12 of the M. S. Act, 1873, does not pre- vent a British vessel being transferable by sale to a foreign purchaser, it only prevents the closing of the British register effecting the release of the ship. — Per Lord President Inglis. Ibid. 329. A stranded ship was sold by auc- tion, certain conditions of sale being an- nexed to the catalogue. A purchaser bought under these conditions, but sub- sequently signed a memorandum incon- sistent with them. A deposit was ac- cepted by the auctioneers in accordance with the conditions which were read from the catalogue in the auction room. , A dispute having arisen, the auctioneers again put the vessel up for sale under the memorandum. It was held that, upon a libel properly framed, the plaintiff owner would have been entitled to recover the price of the vessel, less the deposit ; but that, on the other hand, the defendant would be entitled to recover damages in an action of tort founded on the retaking of possession and resale of the vessel. The Judicial Committee directed a non- suit to be entered. Paget v. Cowasjee Eduljee. L. E. 1 P. C. 127. See also Nos. 202, 202a, and 215, pp. 1202, 1203. 2. From Builder.* 330. An unfinished ship becomes by assignment, and continues afterwards to be when perfected, although at the as- signor's expense, the property of the assignee, and no further act is necessary to secure him against the assignor's credi- tors if the assignor and builder is the same person, but if he is not, then notice of the assignment to the builder is indis- pensable. Holderness v. Rankin, 29 L. J. Ch. 753. 331. For cases in which property passes * (72) As to contracts for the building of a ship, and when the property vests in. the purchaser, see Maclachlan on Merchant Ship- ping, 3rd ed. p. 2 et seq. (73) As to the right of the builder's as- signees on his bankruptcy to a ship in course of building, Ibid. (74) The ownership of a vessel remains in the builder until completion and delivery, although she is built under a contract, and paid for in instalments, as the work pro- gresses. Low v. Austin, 20 N. Y. (6 Smith), 181. [America^.] 1216 OWNERS. Part I. Title and Registration. to employer on failure to complete by shipbuilder, see Baker v. Gray, 17 C. B. 462; 2 Jur. N.S. 400; 25 L. J. 0. P. 161 ; Wood v. Bell (in error), 6 El. & Bl. 355 ; 2 Jur. N.S. 664 ; 25 L. J. Q. B. 321. 332. Assignment by bill of sale of a snip while building, including all mate- rials then provided, or to be provided and made as a security for past and future advances. Held, that a subsequent trans- fer of the ship by the shipbuilder to third parties was a conversion, and that these parties were liable to the holder of the first assignment for the value of the ship when completed, less the cost they had incurred in completing it. Beid v. Fair- banks, 13 O.B. 692; 17 Jur. 918; 22 L. J. 0. P. 206 ; 21 L. T. 166. 332a. A contract for building a ship, provided that in the event of cesser of work, delay in delivery, bankruptcy or insolvency of the builder, the buyer might complete and employ such materials be- longing to the builder as should be then on his premises. Held, that so far as this clause applied to the bankruptcy of the builder, it was void as against the trustee in bankruptcy. Ex parte Barter, Ex parte Black, In re Walker, 26 Ch. D. (C. A.) 510 ; 53 L. J. Ch. 802. 3. Defective Title. 333. The general rule is that whoever purchases under an illegal title does so at his own peril, and must take the conse- quences both in purchase and in his own subsequent expenditure upon it of his in- attention to his own security. The Per- severance, 2 C. Eob. 239. 334. When a person, having no title to a ship, procures it to be registered in his name, the court will compel him to re- transfer it to the rightful owner, and account for the earnings, even though there has been no fraud, and notwith- standing the M. S. Act, 1854 (c. 104). Holderness v. Lamport, 29 Beav. 129 • 7 Jur. N.S. 564 ; 30 L. J. Ch. 489 ; 9 W. E. 327. See also Orr v. Dickinson, 1 Johns. & H. 1 ; 5 Jur. N.S. 672 ; 28 L. J. Ch. 516. 335. If a party has taken a title from the original owner and registered his ship accordingly, and has denied the title of a purchaser, alleging it to be no title at all, and has put the validity of that title in * (75) As to what is included under the term furniture of a ship, see 1 Park on Ins. issue, it is very doubtful whether It is competent to him to turn round and claim under a conveyance from that very pur- chaser whose title he has denied. The Margaret Mitchell, 4 Jur. N.S. 1194; Swabey, 385. 336. Several acts of transfer bond fide, and for valuable consideration, cure ante- cedent defects of title. The Helena, 4 C. Eob. 4. See also The Australia, 13 Moore, P. C. C. 132 ; Swabey, 480 ; The Molly, 1 Dodson, 395 ; The Horlock, 2 P. D. 243 ; 47 L. J. P. D. 5. 337. Semble, the purchaser of a foreign ship ought not to rely merely upon what the ship's papers may show, but is bound to make further inquiry into the title of the ship. Per Turner, L. J., Hooper v. Gumm and others, McLellan v. Gumm and others, L. E. 2 Ch. 282 ; 36 L. J. Ch. App. 605; 2 Asp. 481. 4. Equities. 338. On a purchase of a vessel by a person under twenty-one, the vendor be- comes a trustee in equity for the pur- chaser, until the latter, on coming of age, is enabled to make the declaration of ownership required by the M. S, Act, 1854 (c. 104), s. 38, previously to registering the vessel in his own name ; and sect. 3 of the M. S. Act Amendment Act, 1862, ex- pressly recognizes and gives effect to such equitable rights. Stapleton v. Haymen, 2 H. & C. 918; 9 L. T. N.S. 655; 10 Jur. N.S. 497; 33 L. J. Ex. 170; 12 W. E. 317. 339. The owner of a ship at sea, in possession of information that in conse- quence of her leaky condition she had put into a port for repair, sold his vessel without disclosing this information to the buyer. Held, that the sale was void, although afterwards the ship proceeded on her outward voyage safely, and was lost by being stranded on her return home. Duthie v. Carnegie, 18 P. C. 162; Brown, 408. [Scotch.] See also c. 4, s. 2, p. 1207 ; and see tit Mortgage, c. 4, s. 7, p. 1138. 5. Bill of Sale. 340. When the sale must, or need not, be by bill of sale. See c 3, s. 20, p. 1201. ' * 6. What Property passes* 341. If a shipbuilder make a rudder, 123, 126; Maolachlan on Merchant Ship- ping, 3rd ed. p. 17. OWNERS. Part I. Title and Registration. 1217 intending it to form part of a ship when completed, and the purchaser of the ship considers and treats it as the ship's rud- der, though it was never attached to the ship, and remains unfinished in the builder's possession at his bankruptcy, this is evidence for the jury that the rudder is that of the ship, and the pro- perty of the purchaser. Goss v. Quinton, 4 Scott, N. E. 471 ; 3 M. & G. 825; 12 L. J. 0. P. 173. 342. Eudder and cordage bought by the builder specifically for a ship com- plete or nearly so, though not actually attached to it at the time of delivery to the purchaser held to pass with the ship. Woods v. Russell, 5 B. & Aid. 942 ; Abb. Sh. 6. 343. A bill of sale of a whaler then absent on a fishing adventure, "together with all masts, &c, boats, oars, and ap- purtenances," held not to pass the cargo of oil, &c. acquired during the adventure. Langton v. Horton, 5 Beav. 9 ; 1 Hare, 549; 6 Jur. 357, 910. 344. A chronometer on board a ship passes by assignment of the ship, her tackle and appurtenances. Ibid. 345. It seems the chronometer does not ordinarily pass with the ship. The Veloz ovBeloz, No. 1809, 1 August, 1863. 346. A vessel was sold with all belong- ing to her on board and on shore. A chronometer, previously used in the ves- sel, but, at the date of sale, in the hands of an optician for the purposes of repair, held to pass with the vessel. Arm- strong v. M'Gregor, Cases in the Court of Session, 4th Series, vol. 2, p. 339. [Suotoh.] 347. In an action on a policy of in- surance on ship and furniture, the ship being employed in the Greenland fishery, held, that boats, rigging and stores be- longing to the ship were included; but whether or not the fishing stores were included depended on the usage of trade, which, semole, inclined to the negative. Hoskins v. Pickersgill, cited in The Dun- dee, 1 Hagg. 123 ; Marshall on Ins. (4th ed.), 568 ; 1 Park on Ins. 97. 348. Pishing stores of a vessel engaged in the Greenland fisheries, held to be " appurtenances" within the meaning of 53 Geo. 3, c. 159 (now repealed), and liable thereunder in an action for damage against the vessel, her tackle, apparel and furni- ture. The Dundee, 1 Hagg. 109. 349. The word " appurtenances " is not to be construed with reference to the abstract naked idea of a ship ; but regard must be had to the relation borne by the articles in question to the actual service of the ship. Some things are universally appurtenances to a ship, qud ship, be its occupation what it may : particular things may become so from their immediate and indispensable connexion with a ship in the particular occupation to which she is destined and in which she is engaged. Ibid. 350. The meaning of the word " ap- purtenances" of a ship, and what would and would not be construed to amount thereto, considered, with reference more particularly to the 53 Geo. 3, c. 159. Ibid. 122—127. 351. Whatever property of the owner may be on board a ship for the accom- plishment of the objects of the voyage and adventure in which she is engaged, constitutes part of the ship and her ap- purtenances, under 5 Geo. 3, c. 159, and is liable for damage to another ship. Gale v. Laurie, 7 D. & E. 711 ; 5 B. & 0. 156. 352. The fittings of a packet and the guns of a privateer, held to be included under the word " appurtenances." Ibid. 353. Ballast does not pass under the term "furniture." Kinter's case, Leon. 46. 354. Permanent ballast, called " kent- ledge," does not pass under the words "tackle, apparel, stores, &c." Lane v. Neale, 2 Starkie, 105. 355. A plaintiff sought to recover for articles supplied by him in fitting out a ship for active service in time of war, beyond what would be required for clas- sification at Lloyds. Articles supplied after the completion and delivery of the (76) In the purchase of a ship, ' ' her tackle, apparel and furniture, and other instruments thereto belonging," the ship's boat is not conveyed by such words. Introduction to Godolphin's Adm. Jur. (77) A., by bill of sale, sold to B. one-half of a vessel, " together with one-half of the masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereto appertain- ing." Held, that ballast on board did not pass. Burchard v. Tapscoit, 3 Duer (N. T.), 363. [American.] (78) A bill of sale of the hull of a vessel, with all and singular her tackle, apparel and furniture, does not include a chronometer on board at the time, when no agreement of the parties or custom of merchants in relation to it is made to appear. Richardson t. Clark, 3 Shep. 44. [American.] 1218 OWNERS. Part I. Title and Registration. ship, and requiring a written order for performance, held to be " extras," al- though the order was written before the completion of the ship. Scott Russell v. The Viscount Sa da Bandeira, 1 Asp. 289. 7. By Decree of the Admiralty Division.* 356. In all cases of bottomry, salvage and wages, the Court of Admiralty pos- sessed an undoubted power to decree a sale of the vessel proceeded against, un- less the demand of the successful suitor be satisfied. The jurisdiction of the court therein held to be confirmed by the muni- cipal law of this country, and by the general principles of the maritime law, and the title conferred by the court in the exercise of this authority a valid title against the whole world, and so recog- nized by the courts of this and of all other countries. The Tremont, 1 "W. Eob. 164. 357. A vessel found at sea and brought into port as derelict, having been sold under an order of the Instance Court of Admiralty at the instance of the salvors and claimant (without fraud), held, that such sale was available againstthe Crown's right of seizure for a previous forfeiture incurred by the ship having been guilty of a forfeitable offence against the re- venue laws, although the Crown was not a party to the proceedings in the Admi- ralty Court other than by the King's procurator-general claiming the vessel as an admiralty droit, and although no de- cision of droit or no droit was awarded, and the sale took place pendente lite under an interlocutory order. Att.-Gen. v. Nor- stedt, 3 Price, 97. See also No. 202, p. 1202. 358. For the mode of proceeding in cases of sale of ship by the High Court of Admiralty, see tit. Practice, Pt. II. 8. By Decree of Foreign Court.\ 359. In the ease of the sale of a ship in a foreign port the court naturally looks for the bill of sale, it being the ordinary title by which any and every ship is sold that is sold. Segredo, otherwise Eliza Cornish, 1 Spinks' Eccl. & Adm. Eep. 44 ; 17 Jur. 738 ; see also The Sisters, 5 C. Eob. 155. 360. The authority of a Court of Admi- ralty for the sale of a damaged ship is in some parts of the world deemed conclu- sive as to the legality of the sale, but it is otherwise held by the courts possessing the controlling power in this country. The Warrior, 2 Dodson, 293.J 361. In the case of the sale of a vessel after survey, report and condemnation, by official persons abroad, held, that such a proceeding was in the nature of an inqui- sition of a sheriff for the purpose of in- formation to those having the power of selling the ship, and not conclusive on the party whose property was in question. An- drews^. Glover, Abb. Sh. (12th ed.) p. 16. 362. The sale of a vessel by a foreign Court of Admiralty for the payment of expenses held valid, and the title of a party claiming thereunder pronounced for against the former owner, but with^ out costs. The Experimento, 2 Dodson, 47. 363. The order of a foreign commercial court for the sale of a British ship within twenty-four hours of the application by the master, held not to be a judicial pro- ceeding. The Bonita, otherwise The Char- lotte, 1 Lushington, 252 ; 30 L. J. Adm. 141; 5L. T. N.S. 141. 364. A defective title by reason of an invalid sentence of condemnation may be cured by a subsequent sentence, though given after the property had passed into other hands, and when the vessel herself was no longer amenable to the jurisdic- * (79) When the proceeds of sales are brought into court in a proceeding in rem, they are not liable to make good a loss of the purchaser sustained by a defect found in the article sold, the sale by the marshal carrying with it no warranty to that effect. The Monte Allegre, 9 "Wheat. 648. [American.] t (80) It seems that, by the law of Prance, if the sale of a French ship is made by the master, under the decree of a French court, or under the authority of a French consul in a foreign country, before whom the inna- vigabiltte of the ship has been proved, all further question as to the authority for the sale is for ever quieted, even though the court or consul may have been imposed upon. 3 Pardessus Coursde Droit Com. No. 606, cited in Maclachlan on Merchant Shipping, 159. (81) For particulars as to the Admiralty jurisdiction and practice of the United States Admiralty Court, in regard to the survey and sale of vessels in cases of distress or serious injury, see Marvin on "Wreck and Salvage, 255. (82) For the form of proceeding in an ap- plication to the court for survey and sale of a vessel under such circumstances, see Ibid. 316. t (83) The American Admiralty Courts, however, claim and exercise such jurisdic- tion. See 1 Oonkling's Adm. Prac. 2nd ed. p. 312. [American.] OWNERS. Part I. Title and Registration. 1219 tion of the court, such, valid sentence being held to operate retroactively, so as to rehabilitate the former title. If, how- ever, the title be impeached before the second sentence takes place it may be vitiated. The Falcon, 6 0. Eob. 200. 365. Ship abandoned at the Mauritius by her master and afterwards sold under the authority of the Vice- Admiralty Court there. Owners of cargo brought an ac- tion against the owners of ship, and also sent an agent to the Mauritius to procure the proceeds of sale, which, however, had been previously transmitted to the High Court of Admiralty in England. Held, that the sale, though under the order of the Vice-Admiralty Court, was illegal, that a verdict against the owners of ship to the, extent of the value of ship and freight was no answer to the present action, and that the proceeds of sale at the Mauritius not having been paid when demanded, the plaintiffs were in the same situation as if no such demand had been made, and therefore entitled to recover the value of the goods from the defen- dant. Morris v. Robinson, 3 B. & C. 196. See also as to decrees of Courts of Vice- Admiralty and of foreign Courts of Ad- miralty, tit. Jurisdiction, Pt. I. c. 10, pp. 661—666. 9. Under Power of Attorney. 366. A power of attorney to sell a ship imports that the grantee of the power shall sell the ship for its full value, and he has no authority to negotiate a sale upon any other terms. The Margaret Mitchell, 4 Jur. N.S. 1193 ; Swabey, 382. 367. Semble, a power of attorney to sell a ship, given to the master (among other reasons) by way of security to cover his advances, does not, except in case of necessity, justify him in selling against his owner's consent. Ibid. 368. If the grantee of a power of at- torney to sell a ship sells fraudulently or so as to commit a breach of trust, the fraud of the attorney vitiates the title of the purchaser if the fraud was known to him or could have been known by reasonable inquiry. Ibid. 369. If an agent for the sale of ship has acted improperly or dishonestly towards his principal, the purchaser cannot be affected by such conduct if he were igno- rant of the same, and not called upon by circumstances to make inquiry. Ibid. 370. There are many circumstances which may invalidate a sale made by an attorney, though his authority to sell may not be impeachable. For instance, great inadequacy of price, collusion by the agent with the purchaser, &c. Ibid. 371. Semble, a power of attorney to sell a ship is not so revoked by a decree of the grantor's insolvency in a colonial posses- sion as to invalidate a bond fide exercise of the power before notice of insolvency. Ibid. 372. A power of attorney to sell a ship may be substantially revoked by parol, and the attorney selling thereafter is guilty of a breach of trust. Ibid. 373. The owner of a vessel gave the master a power of attorney to sell the ship. The power was given in case of the master obtaining an advantageous offer, and he had instructions not to sell for less than £10,000 to £13,000. The master had made advances to the amount of £3,000 in respect of the ship on its arrival in England, and offered to resign the ship to the agent on payment of these advances. This offer was refused. The master re- ceived a letter from the owner informing him that he was to be dismissed, that the owner was coming to England and in- tended to sell the ship. The master mean- while sold the ship for £4,000. Held, that the power of sale was substantially though not expressly revoked, that the master's own representations to the purchaser showed it to be invalid, and that there was no such necessity for sale as to invest the master with an implied authority for that purpose. Ibid. 374. A power of attorney authorizing the sale of a vessel is revoked by the death of the owner. Watson v. King, 1 Stark. 121 ; 4 Camp. 272. 375. A., owner of forty-eight shares in a ship, gave a power of attorney to B., the other part owner, empowering him to sell A.'s shares. The ship sailed under the command of B. A. afterwards mort- gaged his shares in the ship, then at sea, to the plaintiffs, who had no notice of the power of attorney, and the mortgage was entered on the register. Subsequently B. sold the ship abroad to the defendants, who had no notice of the mortgage by A. The ship was registered de novo abroad, and arrived in London. The plaintiffs took possession of the ship ; the defendants afterwards also took pos- session. Held, that the plaintiffs had the better title to A's shares. Cato v. Irving, 16 Jur. 161 ; 18 L. T. 345 ; 5 De Or. &S. 210; 21 L.J. Ch. 675. 1220 OWNERS. Part I. Title and Registration. 10. Fraud. 376. Semble, that if vendors fraudu- lently or only wilfully prevent the pur- chaser from complying with the provi- sions of the Ship Eegistry Acts, a court of equity would interfere in aid of the vendee'stitle, evenbeforetheM. S. Amend- ment Act, 1862 (c. 63), s. 3. Mestaer v. Gillespie, 11 Ves. 628. See also Speldtv. Lechmere, 13 Ves. 589 ; Coombes v. Mans- field, 3 Drewry, 200 ; 1 Jur. N.S. 270 ; 24 L. J. Ch. 518. 377. If the grantee of a power of at- torney to sell a ship sells fraudulently, or so as to co mmi t a hreach of trust, the fraud of the attorney vitiates the title of the purchaser if the fraud was known to him, or could have been known by rea- sonable inquiry. The Margaret Mitchell, 4 Jur. N.S. 1194 ; Swabey, 393. 378. If an agent for the sale of a ship has acted improperly or dishonestly to- wards his principal, the purchaser can- not be affected by such conduct if he were ignorant of the same, and not called upon by circumstances to make inquiry. Ibid. 379. B. N., sole owner and first master of the Empress, after some intermediate appointments, made his son E. N. master, who, in Australia, without authority, sold the vessel, asserting himself to be the sole owner and master, the certificate of re- gistry and indorsement bearing out on the face of it such assertion. E. N., the son, received the purchase-money, but never transmitted it to the father. Held, that the sale was effected by the fraud and forgery of the son, that the mislead- ing description of him on the certificate of registry was not proved to arise from any culpable neglect in the instructions given by the father to the Custom House, and that the sale was null and void. Pos- session decreed to E. N., the father, but without costs. The Empress, Swabey, 160; 3 Jur. N.S. 119; 28 L. T. 204; 5 W. E. 165; see also Ekins v. E. I. In- surance Co., 1 P. Wins. 395; 2 Bro. Par. Cases, 72. 380. Vendors sold a vessel "to be classed nine years A 1 at Lloyd's." The vessel was so classed, but on her first voyage was found to be, as the purchasers alleged, so unseaworthy and rotten as not to be worth repairing. In an action by the purchasers to recover the purchase- money and damages, held, that they were not entitled to issues as to the seaworthi- ness of the vessel or as to whether Lloyd's properly classed her as A 1, but that they were entitled to an issue whether the vessel had been classed A 1, owing to the fraudulent representations of the vendors as to her condition. Gourlay v. Watt, Cases in the Court of Session, 3rd Series, vol. 9, p. 107. [Scotch.] See also French v. Newgass, 3 0. P. D. (C. A.) 163 ; 47 L. J. ibid. 361 ; 3 Asp. N.S. 574. 381. Semble, a fictitious sale of a British vessel, in order that it may procure a foreign registry for the purpose of avoid- ing the inspection provided by the M. S. Act, 1873 (c. 85), is fraudulent. Hutch- inson v. Aberdeen Sea Insurance Co., Cases in the Court of Session, 4th Series, vol. 3, p. 682. [Scotch.] 382. Semble, fraud committed by the owner of a vessel would not affect an in- nocent purchaser from him. The Europa, 8 L. T. N.S. 368; 2 N. E. 194; B. & L. 89; 2 Moore, P. C. N.S. 1. 383. When an instrument has been entered into between two parties for a purpose which may be considered fraudu- lent as against a third party, it may yet be binding as between themselves. A supposed fraudulent intention as to third parties cannot be interpolated in constru- ing an instrument in reference to the rights of the contracting parties. Shato v. Jeffery, 13 Moore, P. C. C. 432. 384. Under the 43rd section of the M. S. Act, 1854, a registered purchaser, who purchases for value and without notice of fraud, shares in a vessel, from the registered owner thereof, has a good title against a former owner from whom the registered owner obtained such shares by a bill of sale executed and registered fraudulently. The Horlock, 2 P. D. 243 ; 47 L. J. P. D. & A. 5; 3 Asp. N.S. 421. 11. By Master. (a) Generally* 385. In some of the older cases it was * (84) The master cannot sell the ship abroad, or, in cases of disaster there, without the authority of his owners. Laws of Oleron, cited in Godolphin's Adm. Jur. ext. 1, 3 ; 1 Sid. 453. (85) The master of a ship may in some cases sell the ship, although it does not belong to him, as in the case of famine, &c. OWNERS. Part I. Title and Registration. 1221 held, that the master had no authority to sell any part of the ship, and that a sale by him transferred no property, but that he might hypothecate. See Johnson v. Shippen, 2 Ld. Kaym. 984 ; S. P. Elans v. East India Company, 1 P. Wms. 392 ; 2 Bro. Pari. Cases, 72. 386. The sale of a ship by the master, though made in a foreign country in a case of inevitable danger, the ship and tackle being beaten and broken, and there being no hope of saving any part of them, partly on account of the tem- pest, and partly on account of the bar- barity of the inhabitants of the country, who carried off everything cast on shore, held not to convey the property to the purchaser. Tremenhere v. Tressilian, 1 Sid. 452. 387. If a vessel, pending an insurance on freight and cargo shipped, suffers damage, the master is bound to sell or repair the ship according as a prudent ownen would have acted if wholly un- insured. Green v. The Royal Exchange Insurance Co., 6 Taunt. 66. 388. When a ship has been sold in a foreign port by the master, it is the owner's duty, if he disapproves of that act and considers his property to have been sacrificed, to act with the greatest possible promptitude in demanding that justice should be done to him. The Australia, Swabey, 486 ; 13 Moore, P. C. C. 132. 389. The legality of the sale of a ship by the master mainly depends upon his conduct, and he should therefore be ex- amined as a witness. The Bonita, 30 L. J. N.S. Adm. 153 ; 1 Lushington, 252; 5L. T. N.S. 141. 390. It is the duty of the master of a British ship, before selling her in a foreign port, to consult the British consular officer there resident. Ibid. 391. In the case of the sale of a British vessel by its master to a foreigner in a foreign port, the lex loci contractus does not apply, save in one case only where the title is derived from the decree of a competent court administering the law in its own jurisdiction, and by its decree conferring a title. Segredo, otherwise Eliza Cornish, 1 Spinks' Eccl. and Adm. Eep. 57, 58; 22 L. T. 36; 17 Jur. 738 ; but see Cammell v. Sewell, 3 H. & N. 617; 4 Jur. N.S. 978; 27 L. J. Exch. 447. See also as to decrees of foreign courts, tit. Jurisdiction, pp. 663 — 666. 392. In deciding whether the sale of a ship by its master in a foreign port to a foreigner be legal, the court must be governed, not by the law in force in the foreign port, but by the law maritime and by the law of England, so far as it is consistent with the law maritime, unless indeed the court be restrained by parti- cular statutes. Segredo, otherwise Eliza Cornish, supra. As to the law maritime generally, see tit. Jurisdiction, Pt. I. c. 8, s. 1, p. 649. 393. On the question whether the mas- ter had exercised a sound judgment in selling, evidence of his being addicted to drunkenness is admissible. Alcock v. Royal Exchange Ass. Co., 13 Q. B. 301. 394. The master, in consequence of damage sustained, and of the ship be- coming unseaworthy, and of no advances on loan or bottomry being obtainable to repair her, sold her to the plaintiffs, who repaired and sent her with a cargo to her registered port in England. The owners refusing to ratify the sale, or consent to the registry of the ship in the plaintiffs' names, put men on board to take posses- sion of her and the cargo. Held, that if the plaintiffs had acquired no legal title by the purchase they had no hen in respect of the moneys laid out by them in the repairs. Ridgway v. Roberts, 4 Hare, 106. 395. On recapture of a neutral (Ameri- can) ship from the enemy, restitution on salvage decreed to the former owner, and refused to a party claiming under an as- serted purchase from the master in Ireland, but without prejudice to the rights of such party to be prosecuted in the American Courts. The Fanny and Elmira, Edwards, 117, 120. 395a. As to the authority of the master to sell the ship, see The Gratitudine, Tudor's Leading Cases on Mercantile Law (2nd ed.), pp. 72, 77. (b) Necessity.* 396. A master has not, unless in a case of extreme necessity, authority to sell the Jehkin's Centuries, p. 165, cited in Mac- lachlan on Merchant Shipping, 3rd ed. p. 161. (86) As to the sale of a ship abroad by the master, see Ibid. pp. 159 — 169; Abb. Sh. 12th ed. 5 et sea. (87) As to early foreign ordinances thereon, see Maclachlan on Merchant Shipping, p. 160; Abb. Sh. 12th ed. p. 5. * (88) By the American law the master is justified in selling his ship abroad in cases 1222 OWNERS. Part I. Title and Registration. ship, and he is bound to try every other expedient to raise money before disposing of the ship or any part of the cargo. Un- derwood v. Robertson, 4 Camp. 138 ; Hay- man v. Moulton, 5 Bsp. 68. 397. The master has, by virtue of his employment, not merely those powers ■which are necessary for the navigation of the ship and the conduct of the adventure to a safe termination, but also a power, where such termination becomes hopeless, and no prospect remains of bringing the vessel home, to do the best for all con- cerned, and therefore to dispose of her for their benefit. It is a case of neces- sity, when nothing better can be done for the master's employers. Hunter v. Parker, 7 M. & W. 322 ; The Lord Cochrane, 2 W. Eob. 335. 398. The existence of a necessity suffi- cient to justify the master in the sale of the ship abroad depends upon the circum- stances of the case. It certainly does not arise where a ship is capable of repair, and where means exist by hypothecation or otherwise of paying for those repairs. Segredo, otherwise Eliza Cornish, 1 Spinks' Eccl. and Adm. Rep. 46, 48, 56 ; 22 L. T. 36; 17 Jur. 738; The Croxdale, 15 Jur. 232 ; The Fanny and Elmira, Edwards, 117; The Lord Cochrane, 8 Jur. 716 ; The Bonita, 1 Lushington, 252 ; 5 L. T. N.8. 141 ; 30 L. J. Adm. 145. 399. A ship, having suffered consider- able damage, put into the island of Fayal, and the master petitioned the director of the customs for an official survey. Three were made. The report was to the effect that the ship could be repaired for about £300. The master, being dissatisfied, ob- tained a private survey, which resulted in a report that the ship was unseaworthy, and should be condemned. The director of the customs then, on the petition of the master, decreed the sale of the ship by public auction, and gave official notice thereof according to the custom of the place. She was purchased by a Portu- of urgent necessity, and in such cases only. See The Sarah Ann, 13 Peters, 387 ; 13 Cur- tis, D. S. 0. 215 ; 2 Sumner, 206 ; The Triton, 5 Mason, 465 ; The Petapscot Ins. Co. v. South- gate, 5 Peters, 604 ; 9 Curtis, D. S. C. 490 ; Robinson v. The Commonwealth Ins. Co., 3 Sumner, 220 ; 3 Kent's Comm. 3rd ed. 132. [American.] (89) The master has a right to sell the ship in cases of urgent necessity, acting bona fide for the interest of all concerned. The Tilton, 5 Mason's Eep. 465. [Americas-.] (90) It is not sufficient to a valid sale by the master that he acted with good faith and in the exercise of his best discretion. There must he a moral necessity for the sale, so as to make it an urgent duty upon the master to sell for the preservation of the interest of all concerned. The Sarah Ann, 2 Sumner's Rep. 206. See also Scull v. Briddle, 2 Wash. C. C. 150. [American.] (91) The purchaser of a wrecked vessel from the master is not bound, in order to maintain his title, to furnish direct and posi- tive evidence of the honesty of the master's conduct and of the necessity of the sale, but presumptive proof of those facts is sufficient. The Lucinda Snow, 1 Abb. Adm. 305. [American.] (92) The degree of necessity which justifies the sale of a wrecked vessel by the master defined. Ibid. ; Prince v. Ocean Ins. Co., 40 Maine, 481. [American.] (93) It is well settled in this country, that the master, as such, has authority to sell a wrecked vessel, when he proceeds in good faith, exercising his best discretion for the benefit of all concerned, and this, whether the sale, is made in view of a peril then in- volving the vessel, or of one likely to ensue, from which, in the opinion of persons com- petent to judge, she cannot be rescued. The Lucinda Snow, ibid. [American.] (94) The circumstance that the master, who has sold a stranded vessel, believed at the time that he could get her off, would be pertinent to show bad faith avoiding the sale, but proof that the purchaser believed himself able to rescue the vessel can have no such effect. Ibid. (95) The master has authority to sell the ship only in case of extreme necessity ; but this necessity is not physical, but moral, amounting to a strong and vehement exigency. Peirce v. Ocean Ins. Co., 18 Pick. 83; Woods y. Clark, 24:Fxck. 35; The Schooner Tilton, 5 Mason, 465 ; Skrine v. Sloop Hope, Bee, 2 ; Scull v. Briddle, 2 Wash. C. C. 150 ; The Sarah Ann, 2 Sumner, 206 ; New Eng- land Ins. Co. v. The Brig Sarah Ann, 13 Pet. 387; Bryant v. Commonwealth Ins. Co., 6 Pick. 131; MobinsonY. Commonwealth Ins. Co., 3 Sumner, 220. [American.] (96) Where a vessel abroad is so injured that it becomes questionable whether it will not cost more to repair her than she would be worth when repaired, and the master calls a survey in good faith, there is a moral ne- cessity that he should act on the opinion of the survey, as the agent both of owners and insurers, and he will be supported, unless it. appear that the facts or inferences on which the result of the survey was based were false. The burden of proof will lie on those who impugn the master's conduct to show this falsity. Cordon v. Massachusetts Ins. Co., 2 Pick. 249. [American.] OWNERS. Part I. Title and Registration. 1223 guese merchant, who immediately re- paired her, and sent her with a cargo to Bristol, where she was arrested by the original owner in a cause of possession. Held, that the circumstances of the case did not show an urgent necessity for the sale, and that the sale was invalid. Pos- session decreed to the original owner with costs. Segredo, otherwise Eliza Cornish, supra. 400. An English-owned vessel came into collision in a foreign port within telegraphic communication of England, at which port a British consul and agent of Lloyd's resided, and the master, believing the vessel would not again be fit for sea, sold her, against the advice of the agent of Lloyd's, and without first fully communi- cating with the owner and waiting for his reply. It subsequently turned out that the vessel was but slightly injured, and was at a small expense fitted for sea. The court set aside the sale. The Bonita, 1 Lushington, 252 ; 30 L. J. Adm. 145 ; 5 L. T. N.S. 141. 401. A master has generally no autho- rity to sell his vessel. Necessity alone will justify a sale, and that necessity must arise, e.g. from some of the following circumstances : . 1st. The state and condi- tion of the vessel. 2nd. The consequences of not proceeding to sell. 3rd. "Want of facility of communication with the owners. 4th. The resources of the master, or the total absence of all resources. 5th. To some extent the power of the master to avert a sale. The Glasgoio, otherwise The Ya Macraw, 2 Jur. 1147 ; 28 L. T. 13 ; 5 W. E. 10; Swabey, 145. 402. A British vessel in a foreign port was, after proper surveys had, and after having been pronounced unseaworthy, and not worth repair, sold without autho- rity from her owner. Held, that such sale was justified by necessity, and there- fore valid. Ibid. 403. It is not enough to show that the sale of a ship by the master was bondjide for the benefit of all concerned, it must also be shown that there was an urgent necessity for its being resorted to. Ro- bertson v. Clarke, 1 Bing. 445 ; Cambridge v. Anderton, 2 B. & O. 691 ; 4 D. & E. 203 ; 1 C. & P. 213 ; E. & M. 60 ; Allen v. Sugrue, 8 B. & O. 565 ; Doyle v. Dallas, 1 M. & Eob. 48 ; Gardner v. Salvador, 1 M. & E. 116 ; Miller v. Fletcher, 1 Dougl. 231 ; Maeburn v. LecMe, Abb. Sh. (10th ed.), 8 ; 1 Bing. 243 ; Morris v. Robinson, 3 B. & O. 196; 5 D. & E. 34 ; Reid v. Darby, 10 East, 143 ; Hayman v. Moulton, 5 Esp. N. P. O. 65 ; Ireland v. Thomson, 4 0. B. 149 ; 17 L. J. C. P. 241 ; Somes v. Sugrue, 4 C. & P. 276 ; Furneaux v. Brad- ley, Park on Ins. (8th ed.), 365 ; Carman v. Maeburn, 1 Bing. 243 ; 8 Moore, 127 ; Plantamour v. Staples, 1 M. & E. 117; Robertson v. Carruthers, 2 Stark. 571 ; Mount v. Harrison, 4 Bing. 388 ; 1 M. & P. 14 ; Dommett v. Young, 1 C. & M. 465. 404. The want of repairs, and the de- gree of want, the possibility of procuring the repairs at the port where the ship lies, the expense of repairs, the expense of remaining in port, the want of funds or credit, the impracticability of commu- nicating with the owner, these and other circumstances may in combination consti- tute the necessity the law requires. The Margaret Mitchell, Swabey, 386 ; 4 Jur. N.S. 1194. 405. A ship was in a foreign port (Shanghai) and in need of repairs. The owner had no agent, and the master was not provided with any credit at that place ; the master advertised in vain for money on bottomry, and communicated with and acted upon the advice of Lloyd's agent there. The vessel, if repaired, must have been kept on the beach for many months at a great loss and expense. The master therefore bondjide sold, the vessel. Held, that the necessity was such as gave the master an implied authority to sell, and that the sale was valid. Ibid. 406. If a ship is sold in a foreign port by the master, the burthen of proof as to the necessity of such sale lies upon the purchaser from the master. The Aus- tralia, Swabey, 484 ; 13 Moore, P. C. 0. 132; 7 W. E. 718. 407. The necessity which the law con- templates, as justifying the sale of a ship in a foreign port by the master, is not an absolute impossibility of getting the vessel repaired ; but if the ship cannot be sent upon her voyage without repairs, and if the repairs cannot be done except at so great and so certain a loss that no prudent man would venture to encounter it, that constitutes a case of necessity. Ibid. 408. The first purchaser of the master is bound to prove such necessity; but whether such onus probandi attaches to a second purchaser depends on all the cir- cumstances of the case. Ibid. 409. The master of an insured ship which has been injured by perils of the seas is not justified in selling the ship in- stead, of repairing her, unless he has not the means of getting the repairs done at the place, where the vessel is obliged to 1224 OWNERS. Part I. Title and Registration. "be put in, or cannot get them done except at such an expense as would render it undoubtedly improper to repair if the ship were not insured, or has not money in his possession sufficient to pay for the repairs, and is not in a situation to raise it by loan or otherwise, except at such an extravagant rate as would prevent a pru- dent man, in the exercise of a sound and vigorous judgment, from undertaking the repairs under such circumstances. Soames v. Sugrue, 4 0. & P. 276, 284. 410. If a ship is so injured by perils of the seas that she is rendered wholly unfit for sea, and cannot be repaired except at a greater expense than the building of a new ship, the owner may recover for a total loss, though the ship in the state to which she is reduced is sold with her register. Cambridge v. Anderdon, 1 0. & P. 213 ; 2 B. & 0. 691 ; and see Irving v. Manning, 6 C. B. 391. 411. In a case of justifiable sale of ship abroad by tbe master, the person em- ployed by him to sell may lawfully pay Over the proceeds to the master, or to his order. Ireland v. Thomson, 4 0. B. 199 ; 17 L. J. 0. P. 241. 412. After three several surveys of the ship in a foreign port by competent per- sons, at two of which the surveyor for the agents attended, it was found that the expense of repairing her would be from £4,000 to £5,000. The master, having ineffectually attempted to raise money by hypothecation of the ship, and having no funds to repair her himself, sold her for £1,200. The jury found that what had been done by him was for the benefit of all concerned, and gave a verdict for the assured as for a total loss. Held, by the Court of Common Pleas, that under the circumstances the sale was justifiable. New trial refused. Reid v. Bonham, 6 Moore, 397 ; 3 B. & B. 147. 413. A ship with a cargo of timber bound from Q. to L., on her voyage down the river St. L. sprung a leak, and it became necessary for the preservation of the lives of the master and crew to run her on shore, where she took the ground on the outside of a reef of rocks, and was there fixed and exposed to the full force of the stream, and in the way of the drift ice then forming and floating down the river. One of the part owners and agent for the others resided at Q., and after two surveys, in which the surveyors stated as their opinion that it would be prudent to sell the ship and cargo, the master, under the direction of such part owner, sold the same. The ship, however, survived, was repaired by the purchasers, and after- wards brought a full cargo to L. In an action against the underwriters, held, by the Court of Common Pleas, that, under the circumstances, the master was warranted in selling the ship and cargo. Idle v. Royal Exchange Insurance Co.,- 3 Moore, 115; 3 B. & B. 151; 8 Taunt. 755 ; but semble, overruled on writ of error to the Court of. Queen's Bench, 3 B. &B. 151. 414. To constitute a valid sale at a port of distress, there must be the consent of the master (except under the most peculiar ^ circumstances), an impossibility of re- pairs, except at a ruinous cost, or an equally ruinous delay, and an inexpe- diency, arising from imminent risk, of awaiting communication with the owners. The Uhiao Vencedora, otherwise The Gipsy, 33 L. J. Adm. 195 ; 11 L. T. N.S. 351. 415. Semble, if an extreme necessity existed for the sale of a British ship at a foreign port, the British vice-consul at the port might, if the master neglected to sell, sanction the sale, which would then be valid, notwithstanding the absence of the master's Consent. Ibid. 416. The necessity which gives the master an implied authority to sell his vessel abroad must be created by, and depend upon, the particular circumstances of each case. The Victor, 13 L. T. N.S. Adm. 21 ; 2 Asp. 261. 417. A vessel was at the Cape of Good Hope, and in need of extensive repairs. The master had no credit, and the ship's agents there had a claim of £300 against her and threatened arrest. The master was unable to repair the ship even tem- porarily, so as to bring her to England ; and the necessary delay of three months to enable the master to communicate with the owner in England would have been prejudicial to the vessel; the master, therefore, sold her at the Cape. Held that, under the circumstances, an adequate necessity existed for the sale, and that therefore the transfer was valid. Ibid. 418. It is only under circumstances of stringent necessity that a master can ef- fect a sale of his vessel so as to affect the insurers; but what a prudent owner would have done under the circumstances may illustrate the question as to how far there was a stringent necessity. Cobequid Ma- rine Insurance Co. v. Barteaux, L. E. 6 P. C. 319 ; 2 Asp. N.S. 536. 419. A vessel ran on a reef close to land, about noon. A survey having been. OWNERS. Part I. Title and Registration. 1225 made, she was reported to be very seri- ously damaged, and to be in a dangerous condition; and, as recommended by the surveyors, was sold the next day. In an action by the owners against the insurers as for a total loss, it was proved that the vessel at the time of the report was prac- tically uninjured, and was got off by her purchasers a few hours after their pur- chase, by means that the master might have made available for the same pur- pose. A verdict having been returned for the owners; held, by the Privy Council (reversing the decision of the Supreme Court of Halifax, Nova Scotia), that the verdict was against the weight of evidence as to the necessity for sale. Ibid. 4 1 9a. As to sale or bottomry of cargo by master, see tit. Bottomry, Pt. I. c. 13, pp. 136 — 140, and Goods, Carriage of — , Pt. Y. c. 5, p. 553. (c) Purchasers.* 420. A person surveying a ship with a view to its sale by the master, held justi- fied under the circumstances in becoming the purchaser. The Australia, Swabey, 480, 485 ; 13 Moore, P. C. C. 132 ; 7 W. E. 718. 421. Persons should make their elec- tion either to be surveyors or purchasers, but they should not be both. By being purchasers they are in a position to avail themselves of information they have ob- tained as surveyors. Hayman v. Moulton, 5 Esp. 68. 422. A ship being in a foreign port out of repair, the master being unable to raise money for such repairs, was ordered to be sold by the Vice-Admiralty Court of the place, and was afterwards sold by the agent of the owner for a larger sum than was offered on the attempted sale by the Vice-Admiralty Court; possession refused to the former owner on the ground that the transaction was not shown to be clearly fraudulent, though the master had bought a one-third share from the purchaser. The Warrior, 2 Dodson, 298. 423. A bottomry bond originally valid is not affected by any agreement by the bondholder for the purchase of the ship. The Helgoland, Swabey, 497. 424. The plaintiff, in trover for the ship, by bidding at the sale of it under the process of a foreign court, did not give validity to such sale, the defendant not appearing to have known of, or been misled by, the fact of such bidding. Cas- trique y.Imrie, 6 Jur. N.S. 1058; 8 C. B. N.S. 1, 405; 7 Jur. N.S. 1076; 30 L. J. C. P. 177; 9 W. E. 455; 4 L. T. N.S. 143. 425. A party who repaired at a remote port, with the sanction of the owner, a vessel disabled at sea, arrested it for the price, and brought it to judicial sale. Held, that he possessed a fiduciary cha- racter, which rendered the purchase by him illegal and reducible at the instance of the owner, to whose loss and damage the jury had found the sale had been effected. Elias v. Black, 18 Court of Session Cases, 1225. [Scotch.] (d) Notice to Owners and Lloyd's Agent. 426. The distress of the vessel may be so urgent as to leave the master no alter- native but an immediate sale, and delay may be destructive of the interests of the owners, but where there is a possibility of communicating with them without such consequences, it is the first duty of the master to do so and await their reply. Any sale by the master without commu- nicating with the owners, where practic- able, would be void. The Bonita, 1 Lush- ington, 252; 30 L. J. N.S. Adm. 145; 5 L. T. N.S. 141 ; and see the cases there cited. 427. Semble, it is the duty of the master before selling his vessel to consult with Lloyd's agent, or the British consul, if there be one at or near the port where the vessel lies. Ibid. 428. An English-owned vessel came into collision in a foreign port which was within telegraphic communication of Eng- land, and at which port a British consul and agent of Lloyd's resided, and the master, believing the vessel would not again be fit for sea, sold her against the advice of Lloyd's agent, and without first fully communicating with the owner, and it subsequently turned out that the vessel was but slightly injured and was at a small expense fitted for sea. The court set aside the sale. Ibid. 429. As to notice to owners in cases of bottomry, see tit. Bottomey, p. 129. * (97) A master of a ship cannot become a purchaser at a sale of the property which is sold by his authority as agent of the owners. p. Barker v. Marine Ins. [American.] Go., 2 Mason, 369. 4k 1226 OWNERS. Part I. Title and Registration. (e) Confirmation by Owners. 430. Confirmation of a sale by an owner will not be inferred from vague expres- sions of approval, if the owner at tbe time was not aware of tbe true state of tbe facts relating to the sale. The Bonita, otherwise The Charlotte, 1 Lush. 252; 30 L. J. Adm. 145 ; 5 L. T. N.8. 141. 431. Acceptance of purchase -money generally operates as a ratification of tbe sale, but not so if tbe money was received without tbe intention of appro- priating it, or if received in ignorance of the facts relating to the sale. Ibid. 432. An owner of a ship, beingigno- rant of tbe true state of facts relating to the sale of his ship abroad by tbe master, received as proceeds of tbe sale bills of exchange at sixty days. Before the bills became due he became aware of the true circumstances, andhis ship having arrived, he arrested her. When the bills fell due he obtained payment of them, and paid the money into court. Held, that such receipt of tbe purchase-money by him did not amount to a ratification of the sale. Ibid. 433. Acquiescence by tbe owner, how- ever unauthorized the sale might have been at the commencement, amounts to a ratification by the owner. Lapraich v. Burrows {The Australia), 13 Moore, P.O. C. 132; Swabey, 480. 434. Unnecessary delay on the part of the owner, dissatisfied with tbe sale of the ship by tbe master, may import ac- quiescence in tbe sale. Ibid. See also No. 424, p. 1225; 12. Ameliorations.' 1 ' 435. The general rule is, that whoever purchases under an illegal title does so at bis own peril, and must take the conse- quences, both in tbe purchase and in his own subsequent expenditure upon it, of his inattention to his own security. The Perseverance, 2 0. Eob. 239. • 436. A prize was purchased by a neutral under a sentenoe of condemnation found to be illegal. It appearing to the court that the purchase had not been made under circumstances requiring the strict application of the rule, the purchaser was reimbursed tbe money laid out in ameHo- rations, some deduction having been made for wear and tear and the use of the vessel while in possession of the party making tbe repairs. Ibid. 437. A purchaser of a vessel which, having been condemned in a neutral port, had been restored to tbe former owner on the ground of the illegality of such con- demnation, decreed to be reimbursed for his actual amelioration of the ship, there being some circumstances in the case in- dicating a probability that tbe purchaser might have been deceived as to the legality of the title, but tbe court indicated that such an allowance would not be continued to be permitted after tbe illegality of such titles should be more generally made known. The Nostra de Conceieas, 5 0. Eob. 294. 438. On recapture of a neutral (Ameri- can) ship from the enemy, restitution on salvage decreed to the former owners, and refused to a party claiming under an as- serted purchase from the master in Ireland, but without prejudice to the rights of the purchaser to be prosecuted in the Ameri- can courts. Claim of the purchaser for amelioration refused. The Fanny and Elmira, Edwards, 117, 120. 439. Assignment by bill of sale of a ship while building, including all ma- terials then provided, or to be provided, and made as a security for past and future advances. Held, that a subsequent transfer of tbe ship by the shipbuilder to third parties was a conversion, and that these parties were liable to tbe bolder of tbe first assignment for the value of the ship when completed, less the expenses they had incurred in completing it. Reid v. Fairbanks, 13 C. B. 692; 17 Jur. 918; 22 L. J. O. P. 206 ; 21 L. T. 166. 440. Tbe master, in consequence of damage sustained, and of the ship be- coming unseaworthy, and of no advances * (98) "When the proceeds of sales are brought into court in a proceeding in rem, they are not liable to make good a loss of the purchaser sustained by a defect found in tbe article sold, the sale by the marshal carrying with it no warranty to that effect. The Monte AUegre, 9 Wheat. 648. [American.] (99) If the court should decree a sale by the master invalid, it would, where tbe trans- action was free from fraud, compel a proper allowance for tbe expenditure of the original purchasers in getting off and repairing the vessel. The Brig Sarah Ann, 2 Sumner's Eep. 206. [American.] (100) The purchaser of property in good faith from one who is not the owner is only liable for thfi fruits from judicial. demand. Dyson v. Phelps, 14 La. An. 722. '[Ameri- can.] OWNERS. Pt. II. General Responsibilities of Owners, &c. 1227 on loan or bottomry being obtainable to repair her, sold her to the plaintiffs, who repaired and sent her with a cargo to her registered port in England. The owners, refusing to ratify the sale, or consent to the registry of the ship in the plaintiffs' names, put men on board to take posses- sion of her, and the cargo. Held, that if the plaintiffs had acquired no legal title by the purchase, they had no lien in respect of the moneys laid out by them in the repairs. Ridgioay v. Roberts, 4 Hare, 106. 441. A successful suitor in a cause of damage is entitled, in case of a deficiency of proceeds, to subsequent accretions in the value of the ship arising from repairs effected at the expense of the owner. The Aline, 1 W. Eob. 111. 442. A. had contracted to buy a share of a ship in July, but did not execute a bill of sale till the 14th September. By a memorandum of agreement dated Sep- tember 30, he transferred his share, with all his liabilities as owner, to B., and he then sued B. for expenses incurred by himself with respect to the ship after the contract for the purchase of the ship in July, but before the execution of the bill of sale in September. The memorandum, it was held, showed nothing which made the defendant liable for expenses not in- curred by plaintiff as owner, therefore the action was not sustainable. Chapman v. Callis, 1 Asp. 37. 13. Proceeds of Sale.* 443. The court cannot, as regards the proceeds of property, give any relief which could not be given as against the property itself. Prouting v. Hammond, 8 Taunt. 688; M'Calmont v. Rankin, 2 De G. M. & G. 424 ; Hare, 1 ; The Liver- pool Borough Bank v. Turner, 1 Johns. & H. 159, 179; 3 L. T. N.S. 84, 494; 2 De G. F. & J. 502 ; but see Armstrong v. Armstrong, 21 Beav. 78. 14. Lapse of Time. See tit. Laches, c. 5, p. 804. 15, Elsewhere than at Home Port. See c. 3, s. 23, p. 1202. 9. Actions of Possession. Generally. 444. G., sole owner, mortgaged a ship to B., and died intestate and insolvent. B., under the power of sale, sold to "W., but by mistake endorsed upon the ori- ginal mortgage a discharge, which was recorded at the custom house. Subse- quently the registrar refused to register W.'s bill of sale, as the property in the ship appeared by the papers to be in G.'s representatives. The court ordered pos- session of the ship to be given to W. without requiring administration to G. The Rose, 42 L. J..N.S. Adm. 11 ; L. E. 4 A. & E. 6 ; 1 Asp. N.S. 567. 445. The court inclines against dis- possession, and requires the plaintiff's claim to be clearly proved. The Victoria, Swabey, 408 ; 5 Jur. N.S. 204. 446. See also as to the court's juris- diction in such actions, c. 2, ss. 1 and 2 ; and as to the court's power of sale, c. 8, s. 7, p. 1218. 447. For practice in such actions, see tit. Practice, Pt. III. See also Pt. VTJI. c. 2, tit. Owners, 10. Freight. See tit. Goods, Carriage of—, p. 467. Part II. — GENERAL AND SUNDRY RE- SPONSIBILITIES OF OWNERS AND THEIR REPRESENTATIVES. 1. Generally. 448. In all causes of action which may arise from circumstances occurring during the ownership of the persons whose ship is proceeded against, no action can be maintained against the ship where the owners are not personally liable, or where their personal liability has not been given up, as in bottomry bonds, by taking a lien on the vessel. The liability of the ship, and the responsibility of the owners in such cases, are convertible terms. The ship is not liable if the owners are not responsible, and vice versd. The Druid, 1 W. Eob. 399. 449. It is the duty of a person using a navigable river with the vessel of which he is possessed, and has the control and * (101) As to the jurisdiction of Courts of Admiralty over proceeds in the registry, see Parsons on Admiralty Law, vol. ii. p. 548. [American.] (102) The surpluses or remnants of pro- ceeds on the sale of a ship under the process of the court are a representative of the ship, and subject to claims which might be en- forced against her in rem. Bemnants in Court, Olcott, Adm. 382. [American.] 4k2 1228 OWNERS. Pt. II. General Responsibilities of Owners, &e. management, to use reasonable skill .and care to prevent mischief to others. The liability is the 'same whether the vessel be in motion or stationary, floating or aground, under water or above it. The liability may be transferred with the transfer of the possession and control to another person; yet, on the abandon- ment of such possession, control, and management, the liability may cease. White v. Crisp, 23 L. T. 300 ; 23 L. J. Exch. 317 ; 10 Exch. 312. See also Rex v. Watts, 2 Esp. N. P. C.675. 450. A vessel by her improper naviga- tion caused a second vessel to run into and damage a third vessel. Held, that the first vessel was alone responsible for the damage. The Sisters, L. E. 1 P. D. (0. A.) 117 ; 45 L. J. P. D. & A. 23 ; ibid. (O. A.) 39 ; 3 Asp. N.S. (0. A.) 122. See also The Thames, 44 L. J. Adm. 23 ; 2 Asp. N.S. 513 ; The Annapolis and Golden Light, 5 L. T. N.S. 692 ; The Hibernia, 4 Jur." N."S. 1244 ; Seccombe v. Wood, 2 M. & E. 290; The Venus, 11 July, 1855. See also tit. Collision, Pt. IV. c. 3, p. 234. 451. The representative of an owner is responsible (to the extent of the property inherited from him) for the acts of the owner. The' Nostra Signora de los Do- lores, 1 Eodson, 296. 452. In a court of the law of nations the 26 Geo. 3, c. 60, requiring the name of every owner to appear in the ship's register, and the rule confining the claims of third parties, if British subjects, to registered owners, held, not to bar fo- reigners from preferring a claim against a bond fide owner whose name was not inserted in the ship's register. Ibid. 453. A party actively and directly con- cerned in the purchase and outfit of the vessel, in the appointment of the master, and in the subsequent management of the vessel, whose name, however, was not in- serted in the ship's register, bill of sale, or letters of marque, held to have been a bond fide owner, and responsible as such to a foreigner. The representative of such owner accordingly held responsible for costs and damages decreed to the foreigner. Ibid. , 454. Semble, owners are not deprived of the benefit of compulsory pilotage be- cause, after a collision, their vessel did not render the assistance required by sect. 33 of the M. S. Act Amendment Act, 1862 (c. 63). The Queen, The Lord John Rus- sell, L. E. 2 A. & E. 354 ; 38 L. J. N.S. Adm. 39 ; 3 Asp. 242. See also tit. Col- lision, Pt, I. c. 5, s. 2, p. 188. 455. The master of a steam-tug, who had contracted to tow a fishing smack out of the harbour of G. Y. to sea on the terms that his owners should not be liable for damage arising from negligence or default of themselves or their servants, after the towage had been in part per- formed took in tow, in addition to the smack, six other vessels, and in conse- quence was unable to keep the fishing smack in her course, so that she went aground and was lost. By having more than six vessels in tow at once, the mas- ter of the tug disobeyed a regulation made by the harbour master of G. T. under statutory authority. Held, that the loss of the smack was occasioned by the negligence of the master of the tug, but that the owners were protected from liability by the terms of the towage con- tract. The United Service, 9 P. D. 3 ; 53 L. J. P. 1 ; 47 L. T. 701 ; 32 W. E. 565 ; 5 Asp.. 170, C. A. 456. The defendants' vesselbeing driven upon a sea-wall became a wreck, and could not be removed otherwise than by breaking her up. Valuable property was on board, which would have been lost if she had been immediately broken up. The defendants removed the property with reasonable speed, and then broke up the vessel. During the period which elapsed between the time when she could have been first broken up and the time she was broken up, in fact, damage was done by the vessel to the sea-wall on which she.lay. Held, that the defendants, assuming them not to have been guilty of any negligence, although remaining in possession, were onlybound to use reason^ able care and diligence in preventing the ship from damaging the sea-wall, and were entitled to remove the property on board before breaking her up, and that having done so with reasonable speed they were not liable. Bailiffs of RoM- ney Marsh v. Corporation of the Trinity House, 5 Ex. 204; L. E. 7 Ex. Ch. 247; 39 L. J. Ex. 163 ; 41 ibid. Ex. Ch. 106 ; 3 Asp. 396. 456a. The defendants' vessel, owing to the negligence of their servants, struck on a sand-bank, and becoming from that cause unmanageable, was driven by the wind and tide upon a sea-wall of the plaintiffs, which it damaged. Held, that the defendants were liable for the damage so caused. Ibid. 4565. See also the case of The Rhosina, 10 P. D. 24, given in Addenda. 457. As to owner's liability for the OWNERS. Pt. II. General Responsibilities of Owners, &c. 1229 result of latent and patent defects in their vessels, see tit. Collision, Pt. III. cc. 2 and 3, pp. 200—203, and ibid, in Addenda. 457a, As to owner's liability for acts of stevedore, see Murray v. Currie, L. E. 6 C. P. 24 ; 40 L. J. C. P. 26 ; 23 L. T. 557; 19 W. E. 104; and Burns v. Poul- som or Poulson, L. E. 8 C. P. 563 ; 42 L. J. C. P. 302 ; 29 L. T. 329 ; 22 W. E. 20. See also tit. Goods, Carriage of — , pp. 499, 550, 563. 2. M. S. Acts. 1. Generally.* 458. The M. S. Act, 1854 (c. 104), is divided into eleven parts : — Part I. — The Board of Trade and its gene- ral functions (sects. 1 — 16). No pre- cise application stated. Part II. — British ships, their ownership, measurement and registry (sects. 17 —108). To the whole of H. M.'s dominions (see sect. 17). Part III. — Masters and seamen (sects. 109 — 290.) Applies (unless the context otherwise requires), So much as relates to lists of crews to Eegistrar-General of Shipping and Seamen — To all fishing vessels belonging to the United Kingdom ; To all ships belonging to the Trinity House, to the Commission- ers of Northern Lighthouses, or to the port of Dublin corporation ; To all pleasure yachts ; and To owners, masters and crews of such ships : So much as relates to lists of crews, and to wages and effects of de- ceased seamen and apprentices — ■ To all sea-going British ships, wherever registered, whose crews are discharged in, or whose final port of destination is, the United Kingdom, and to their owners, masters and crews : * (103) The principal acts relating to mer- chant shipping prior to the year 1854 are re- pealed by the M. 8. Repeal Act, 1854 (c. 120), on the M. S. Act, 1854, coming into force. (104) The M. S. Act, 1854 (c. 104), is ex- tended and amended by the following acts viz. :— The M. S. Eepeal Act, 1854 (c. 120; the M. S. Act Amendment Act, 1855 (c. 91 the M. S. Act Amendment Act, 1862 (c. 63 the M. S. Act, 1867 (c. 124) ; the Colonial Shipping Act, 1868 (c. 129); the M. S. (Colo- nial) Act, 1869 (c. 11); the M. S. Act, 1871 (c. 110); the M. S. Act, 1872 (c. 73): the M. S. Act, 1873 (c. 85) ; the M. S. Act, 1876 (c. 80); the Shipping Casualties In- vestigation Act, 1879 (c. 72) ; the Merchant Seamen (Payment of Wages and Eating) Act, 1880 (c. 16) ; the M. S. Act, 1854, Amend- ment Act, 1880 (c. 18); the M. S. (Fees and Expenses) Act, 1880 (c. 22); the M. S. (Car- riage of Grain) Act, 1S80 (c. 43) ; the M. S. (Expenses) Act, 1882 (c. 55); theM. S. (Co- lonial Inquiries) Act, 1882 (c. 76) ; and the M. S. (Fishing Boats) Act, 1883 (c. 41). (105) For an account of the origin and progress of the navigation laws of England from King Richard 2nd to Queen Victoria, see Pritchard's Admiralty Digest, 2nd ed. p. 424, n. (106) The original jurisdiction of the High Court of Admiralty in most cases of breaches of the navigation laws was apparently taken away by the 74th section of the 6 Geo. 4, c. 108, re-enacted in succeeding statutes, and in the Customs Consolidation Act, 1853 (c. 107), s. 263. Its appellate jurisdiction thereon from Vice-Admiralty Courts was taken away by the 3 & 4 Will. 4, c. 41, transferring appeals from those courts to the Privy Council direct. . (106a) As to the course of procedure for recovering penalties, enforcing forfeitures, and punishing offenders under the Customs Acts, see 39 & 40 Vict. c. 36, ss. 218—274. (107) For the old cases determined in the High Court of Admiralty under the revenue and navigation laws, see The Betty Cathcart, 1 C. Eob. 220; The Jeune Voyageur, 5 ibid. 1 ; The Recovery, 6 ibid. 341 ; The Eleanor, Edwards, 135 ; The Adams, ibid. 310 ; The Friendship, 1 Dodson, 373 ; The Mary, ibid. 72 ; The Reward, 2 ibid. 271 ; The Swift, 1 ibid. 339. (107a). For cases under the old law as to the forfeiture of ship and cargo by reason of the ship not having been manned by a due proportion of subjects of the Crown, see The Beaver, 1 Dodson, 158 ; The George the Third, ibid. 311 ; The Generous, 2 ibid. 327, 335 ; The Pelican, ibid. 194 ; Le Louis, ibid. 253 ; The Hercules, ibid. 363 ; Wilkins v. Despard (1792), 5 T. E. 112. (108) For cases of forfeiture under the old law by reason of illegal importation or ex- portation of goods, see The Eleanor, 1 Ed- wards, 135; The Beaver, X Dodson, 152; The Vixen, ibid. 136; The Matchless, 1 Hagg. 102? The Eliza Ann, ibid. 257 ; The Reward, 2 Dodson, 265; King v. Whittaher, 1 Hagg. 145 ; Campbell v. Lines, 4 B. & Aid. 426 ; Att.-Gen. v. Wilson, 3 Price, 431 ; The Swift, 1 Dodson, 344 ; The Adelaide, 2 Hagg. 233 ; Williams v. Manhill, 1 Moore, 168; 7 Taunt. 468 ; The Adams, Edwards, 298 ; The Mary; 1 Dodson, 72; The Sarah, ibid. 78; The Friendship, ibid. 373 ; The Paisley, Edwards, App. E. ; The Tortola, 1 Dodson, 124 ; The Generous, ibid. 323 ; The Wasser Hundt, ibid. 271, n.; The Union, 1 Hagg. 37; Wolfr. ClaggeU, 3 Esp. 257 ; The Julia, 1 Dodson, 170, n. 1230 OWNERS. Pt. II. General Responsibilities of Owners, &c. So much as relates to shipping and discharge of seamen in United Kingdom — To all sea-going British ships, ■wherever registered, and their owners, masters and crews : So much as relates to seamen volun- teering into royal navy — To all sea-going British ships, wherever registered, and to their owners, masters and crews : So much as relates to rights and re- medies as to wages ; to the ship- ping and discharge of seamen in foreign ports; to leaving seamen abroad; to the relief of seamen in distress in foreign ports ; to the provisions, health, and accommo- dation of seamen ; to the power of seamen to make complaints ; to the protection of seamen from im- position; to discipline; to naval courts on the high seas and abroad ; and to crimes committed abroad — To all ships registered in H.M.'s dominions abroad, when such ships are out of the jurisdiction of their respective governments, and to owners, masters and crews of such ships : The whole of this part — To all sea-going ships registered in the United Kingdom (except those exclusively employed in fish- ing on its coasts, and those be- longing to the Trinity House, the Commissioners of Northern Light- houses, or the port of Dublin corporation, and except pleasure yachts), and also to all ships re- gistered in any British possession and employed in trading between United Kingdom and any place not in the possession in which such ships are registered, and to owners, masters and crews of such ships, wherever they may be (see sect. 109). Part IV. — Safety and prevention of acci- dents (sects. 291—329). To all British ships, and to all foreign steamers carrying passengers be- tween places in the United King- dom (see sect. 291). Part V.— Pilotage (sects. 330—388). To the United Kingdom only (see sect. 330). Part VI.— Lighthouses (sects. 389—416). No precise applications stated. Part VII.— Mercantile marine fund (sects. 417—431). No precise application stated. Part VIII. — Wrecks and casualties (sects. 432 — 501). No precise applications stated. Part IX. — Liability of shipowners (sects. 502—516). To the whole of H. M.'s dominions (see sect. 502). Part X. — Legal procedure (sects. 517 — 543). To the whole of H. M.'s do- minions, except as therein excepted (see sect. 517). Part XI. — Miscellaneous matters (sects. 544 — 548). No precise application stated. 459. Every officer of the Board of Trade, every commissioned officer of any of her Majesty's ships on full pay, every British consular officer, the Eegistrar- General of Shipping and Seamen and his assistant, every chief officer of customs in her Majesty's dominions, and every superintendent of a mercantile marine office, may, in cases where he has reason to suspect that the provisions of this act or the laws as to merchant seamen and navigation are not complied with, require the owner, master, or any of the crew of any British ship to produce any official log-books or other documents relating to such crew or any member thereof in their respective possession or control, and the master to produce a list of all persons on board, and take copies of all or part of such official log-books or documents, and summon the master to give any expla- nation concerning such ship or her crew, or the official log-books or documents. (Penalty for breach not exceeding £20.) See M. S. Act, 1854 (c. 104), s. 13. 2. Application of their Provisions to Foreign Ships. 460. Whenever it has been made to appear to her Majesty that the govern- ment of any foreign state is desirous that any of the provisions of the M. S. Acts, 1854 to 1876, or of any act hereafter to be passed amending the same, shall apply to the ships of such state, her Majesty may by Order in Council apply such pro- visions to the ships of such state, and to the owners, masters, seamen, and appren- tices thereof, as if such ships were British ships. See M. S. Act, 1876 (c. 80), s. 37. 461. Where her Majesty has power to make an Order in Council under the M. S. Act, 1854, or any act amending the same, such Order in Council may be re- voked, altered or added to by Order in Council. Ibid. s. 38. 462. Every such Order in Council is to be published in the Gazette, and laid be- OWNERS. Pt. II. General Responsibilities of Owners, &c. 1231 fore Parliament. Upon such publication, the Order takes effect as if enacted by Parliament. Ibid. 463. No foreign ship proceeding in ballast or with, cargo or passengers be- tween any ports of the United Kingdom, the Channel Islands or Isle of Man, nor any goods carried therein, is while so employed subject to any higher or other rate of dues than British ships so em- ployed. See Customs Laws Consolidation Act, 1876 (c. 36), s. 141* 464. Every foreign ship proceeding in ballast, or with cargo or passengers be- tween any ports of the United Kingdom, the Channel Islands, or Isle of Man, is subject, as to stores for the use of the crew, and in all other respects, to the same regulations as British ships. Ibid. 465. As to the jurisdiction of British courts over ships belonging to foreign governments, see tit. Jurisdiction, c. 13, p. 671. 3. Application of Laws of India and Colonies to British Ships throughout the Empire. 466. If the governor- general of India in council, or the legislative authorities in any British possession abroad, by ap- propriate legal means, apply or adapt any of the provisions in the third part of this act to any British ships registered at, trading with, or being within their re- spective jurisdictions, and to the- owners, masters, mates, and crews thereof, such provisions when so applied, and so long as they remain in force, shall in respect of the ships and persons to which they are applied be enforced, and penalties and punishments for the breach thereof recovered and inflicted throughout her Majesty's dominions, as if such provi- sions had been hereby so adopted, and applied. See M. S. Act, 1854 (c. 104), s. 288. 467. Every act, ordinance, or other form of law to be passed by the governor- general of India in council, or other legislative authority, in pursuance of this act, shall require the same sanction or other formalities, and be subject to the same conditions as are required in order to the validity of any other act, ordi- nance, or other form of law passed by such legislative authorities. Ibid. s. 289. 468. See also tit. Jurisdiction, Pt. II. c. 13, p. 704; and as to Indian and Colo- nial legislation, ibid. pp. 691 — 775, and ibid, in Addenda. 4. Conflict of Laws. 469. If in any matter relating to any ship or to any person belonging to any ship there appears to be a conflict of laws, then, if there is in the third part of this act (as to masters and seamen) any pro- vision on the subject which is hereby ex- pressly made to extend to such ship, the case shall be governed by such provision, and if there is no such provision the case shall be governed by the law of the place in which such ship is registered. See M. S. Act, 1854 (c. 104), s. 290. 5. Acts of Master. t 470. The court will hold owners re- sponsible for the acts of their masters within the scope of the authority com- * (109) Various exemptions from local dues on snips and goods are abolished by the Ship- ping Dues Exemption Act, 1867 (c. 15). (109a) If a receiver of dues proves to the satisfaction of the Board of Trade that it would be beneficial to the trade of the port that dues already exempted should be abo- lished, the Board may order accordingly, under certain limitations. Ibid. s. 10. (109J) The Shipping Dues Exemption Act, 1867 (c. 15), is amended by 33 & 34 Vict. c. 50, as to the compensations to be paid under the former act. t (110) As to the responsibility of the owners for the acts of the master, see Abb. Ship. 12th ed. p. 83 et seq. ; Maclachlan on Merchant Shipping, 3rd ed. p. 130 eteeq.; 2 Maude & Pollock on Merchant Shipping (4th ed. by Pollock & Bruce), p. 154 et aeq. (111) By the common law the owners are responsible for all the obligations of the master, whether arising ex contractu or ex delicto, within the scope of his authority as master. Stinson v. Wyman, DaYeis, 172. [American.] (112) The master of a vessel has no power to bind the owners beyond the authority given to him by them, and the extent of their authority must be limited to their express or implied instructions, or to the law of the country in which the ship belongs, and in which they reside. Popey, Nickerson, 3 Story, 465. [AMERICAN.] 1232 OWNERS. Pt. II. General Responsibilities of Owners, &c. mitted to them, viz. for all errors of judgment, &c. The Vibilia, 1 W. Bob. 15. 471. The act of the master hinds the owner with respect to the conduct of the ship as much as if it were committed by the owner himself. The Vrouw Judith, 1 0. Eoh. 151 ; The Columbia, Ibid. 156. 472. Owners are responsible for damage generally when occasioned by the negli- gence or unskilfulness of the master in performing a lawful service, but not when occasioned by an illegal act maliciously or wilfully done without the privity or ap- probation of the owners. In a suit pre- ferred against the owners of a steam-tug in respect of damage occasioned by the wilful and illegal acts of the master thereof in their employ, held, that the owners were not responsible, those acts not being within the scope of the master's ordinary duties, nor directed or subse- quently sanctioned by his owners. The Druid, 1 W. Bob. 391. 473. If before a suit is commenced a master, being cognizant of an injury done by his servant, negotiates for the compen- sation of that injury by the payment of a sum of money out of court, quare, would he be so far concluded by such negotia- tion that he could not avail himself of any legal defence to the action ? Ibid. 474. The master of a Danish schooner, lying alongside the quay at the port of Ibraila in the Danube, got on board an English barque lying outside him, and, in order to get the schooner out, wilfully cut the barque adrift, whereby she swung to the stream and capsized a. barge, into which the barque had discharged some of her cargo. Held, inter alia, that the mas- ter was acting out of the scope of his duty, that the Danish schooner proceeded against had nothing to do with the damage, and that her owners were there- fore not liable. The Ida, 1 Lushington, 6 ; 1 L. T. N.S. 417. 475. Civilly the owners are responsible for every deviation from that line of con- duct which it becomes a master to per- form not simply and alone in the naviga- tion of the vessel, but in the care of his own seamen and of those who may be thrown overboard by accident, and for the performance of every other office of humanity. The St. Lawrence, 14 Jur. 534. 476. The master is the agent of the owner of the vessel, and can bind him by his contract or his misconduct ; but he is not the agent of the owners of the cargo unless expressly so constituted by them. The Mercurius, 1 C. Bob. 82. 477. The incidental powers of a master are restricted to those which belong to the usual employment of the ship ; if its or- dinary employment has been to carry cargo on the sole account of the owner, he has no authority to let the ship on freight ; or if its ordinary employment has been to take goods on freight as a common carrier he will not be presumed to have authority to let the ship on a charter-party for a special agreement. The Thomas Worthington, 3 W. Bob. 135. 478. "Whenever a master is on shore and a ship is left in charge of the mate, or anyone else, the latter stands in the same position with respect to the law, and in all other respects, as if he had been the master himself. The Northampton, 1 Spinks' Eccl. and Adm. Bep. 157. 479. A master in the royal.navy placed, for the purpose of bringing it to England, in charge of a vessel retaken from pirates, is invested with all the authority of an ordinary master, but no more. The Se- gredo, otherwise Eli%a Cornish, Ibid. 49. • 480. If the master of a vessel exceeds his authority as agent for the owner by signing a charter-party to pay a commis- sion to a ship broker, the owner is not liable to the ship broker, and a suit to recover the amount of commission claimed will be dismissed with costs. The Phwnix, 5 Jur. N.S. 77. [Irish.] •481. In all cases in which the owners of a ship are sought to be made liable, either in contract for necessaries supplied on the order of the master, or in cases of collision for the negligence of the crew, or (as in the case before the court) in a case of injury to the person, from the negligence of the ship keeper, the ques- tion of liability does not depend on the title to the ship. The real question is; whether the owners who are sought to be charged were the employers of the master who made the contract, or the masters of the persons who were guilty of the negli- gence. Per the majority of the court in Hibbs v. Ross, L. B. 1 Q. B. 534 ; 35 L. J. Q. B. 193 ; 2 Asp. 397 ; 7 B. & S. 655. 482. In cases of contract, a further question sometimes arises,' as to whether' , the owner may not have clothed the mas^ ter with apparent authority, so as to be precluded from disputing his authority, but in cases of tort the question can only be, whether he in fact employed those actually guilty of negligence. Ibid. 483. The owner of a vessel agreed with OWNERS. Pt.II. General Responsibilities of Owners, &c. 1233 the master that he should take the vessel wherever he chose, on condition that he (the owner) should have a third of the net profits. The owner registered him- self as managing owner. Held, that the owner was liable to third parties for the negligent management of the vessel by the master. Steel y. Lester, 3 0. P. D. 121 ; 47 L. J. C. L. 43 ; 3 Asp. N.8. 537. 484. The master's contracts cannot bind the owner, unless authority to bind the owner has been actually given to him or unless the owner has, by word or deed, held out the master as his master. The Great Eastern, L. E. 2 A. & E. 88. 485. The liability of the owner of a vessel to pay for repairs and equipments ordered by the master depends, not upon the ground of ownership of the vessel, but upon the ground of a contract made with the vendor by a person who was the owner's agent for the purpose of ordering such necessaries. Ibid. Bee also tit. Ne- CESSAEIES, EEPAIES AND SUPPLIES, p. 1148. 486. The steamer T., while on a voyage from M. to L. fell in with the S. disabled. The master of the T. agreed to tow the 8. to port for an agreed sum. In endeavour- ing to do so, the T. negligently came into collision with the S. and sunk her. The policy of insurance upon the T. and her bills of lading provided that she might assist and tow vessels in all situations; but the master of the T. had never re- ceived any instructions from the owners as to performing salvage services. Held, that the master of the T. was acting within the scope of his authority in en- deavouring to tow the S. to port, and that the owners of the T. were liable for the damage caused by his negligence while so doing. Semble, even if there had been no such clause in the policy of in- surance or bills of lading, the master would nevertheless have been acting within his authority in rendering salvage services to the S. The Thetis, L. E. 2 A. & E. 365. 487. The master of a ship whose anchor had got foul of a submarine cable, caused the cable to be cut, although by the ex- ercise of ordinary nautical skill the an- chor might have been freed from the cable. Held, that the owners of the cable were entitled to recover from the ship- owners for the damage. The Clara Kil- lam, L. E. 3 A. & E. 161. 488. Owners are not liable for an abuse by the master of the powers conferred on him by the M. S. Act, 1854 (c. 104), s. 246, of apprehending deserters without a warrant. O'Neil v. Rankin, Cases in the Court of Session, 3rd Series, vol. 11, p. 538. [Scotch.] 489. As to the general responsibility of the owners for the acts of the master, see tit. Masters, pp. 1120 and 1122. 490. As to their responsibility for the performance of his duties to the cargo, see tit. Goods, Caeeiage of — , p. 465. 490a. As to collision, see tit. Colli- sion, p. 188. 6. Acts of Harbour and Dock Masters.* 491. If any harbour master or any of his assistants without reasonable cause or in an unreasonable or unfair manner exercises any of the powers or authori- ties vested in the harbour master by this or the special act, the person so offend- ing shall for every such offence be liable to a penalty not exceeding £5. See the Harbours, Docks and Piers Clauses Act 1847 (c. 27), s. 54. 492. The harbour master may give directions for all or any of the following purposes, that is to say : For regulating the time at which, and the manner in which, any vessel shall enter into, go out of, or lie in or at the harbour, dock or pier, and within the prescribed limits, if any, and its position mooring or unmoor- ing, placing and removing whilst therein. For regulating the position in which any vessel shall take in or discharge its cargo, or any part thereof, or shall take in or land its passengers, or shall take in or deliver ballast within, or on the harbour, dock or pier. For regulating the manner in which any vessel entering the harbour or dock shall be dismantled as well for the safety of such vessel as for prevent- ing injury to other vessels, and to the harbour, dock, or pier, and the moorings thereof. For removing unserviceable vessels and other obstructions from the harbour, dock or pier, and keeping the same clear. For regulating the quantity of ballast or dead weight in tne hold which each vessel in or at the harbour, dock or pier shall have during the delivery of her cargo, or after having discharged * (113) The principal General Pier and cc. 19, 69, 81; 29 & 30 Vict. c. 30; 38 & 39 Harbour Acts are— 10 & 11 Vict. c. 27; 24 Vict. c. 89, and 45 & 46 Vict. c. 62. & 25 Vict. cc. 45, 47, 80; 25 & 26 Vict. 1234 OWNERS. Pt. II. General Responsibilities of Owners, &e. parliament to be berthed in a harbour under the directions and control of the harbour master, who had authority to re- gulate their position, mooring, and plac- ing whilst therein, and damage was occa- sioned to a vessel by the alleged negli- gence of the harbour master, who, having fixed the place where the vessel was to be beached, gave an order, on the vessel nearing the spot selected, to let go the anchor, on which the vessel immediately settled and was damaged. In an action by the owners of the vessel against the harbour commissioners (whose servant the harbour master was), held (affirm- ing the decision of the President of the P. D. & A. Division), that the order was, under the circumstances, a negli- gent order; that the harbour master in so ordering was acting in the capacity of and within the scope of his authority as harbour master, and that therefore the Harbour Commissioners were liable, and this, although the ship was at the time, in order to reach the place of beaching so selected, passing through waters out- side the limits of the authority of the Harbour Commissioners, and the damage occurred outside such limits. Edwards v. The Falmouth Harbour Commissioners, 79 L. T. (0. A.) 135. 494e. In a proceeding under the Crown Suits Act, 1861, it appeared that a har- bour was under the management of the Executive Government of the Colony, which appointed the harbour officials and received rates for the use of staiths and wharves, but no harbour dues. Held, that such executive government was liable for negligence in permitting an obstruc- tion to remain in the harbour by which the plaintiffs' ship was injured. The Queen v. Williams, 53 L. J. P. C. 64. 494/. The owners of a vessel damag- ing the New Brighton Pier are not pre- cluded by the terms of the New Brighton Pier Act, 1864, from setting up the de- fence of compulsory pilotage. The Clan Gordon, 7 P. 1). 190; 4 Asp. 513. 495. The harbour master has power to enter any vessel in harbour burning lights or fires contrary to the provisions of the act or any special act, or any bye- law under such act, and to extinguish them. See the Harbours, Docks and Piers Clauses Acts, 1847 (c. 27), s. 72. 496. The owner of any vessel or float of timber doing damage to the harbour, dock or pier, or the quays or works con- nected therewith, and the master of any such vessel, shall be responsible for such the same. See the Harbours, Docks and Piers Clauses Act, 1847 (c. 27), s. 52. 493. The harbour master may remove any wreck or other obstruction to the harbour, dock or pier or their approaches, and the expenses of removal shall be paid by the owner of the wreck or obstruc- tion, and the harbour master may detain and, on non-payment on demand of such expense, sell such wreck or obstruction. Ibid. s. 56. 494. A vessel, without any negligence on the part of the owner, N, became a wreck and obstructed a harbour. The harbour master removed it pursuant to the 56th section of the Harbours Act, 1847, and brought an action to recover the costs of such removal against N. N. joined E. as a defendant, with whom the vessel had been insured, and who had paid as on a total loss. No no- tice of abandonment was given to E. Held, by the Court of Appeal, affirming the decision of the Queen's Bench Divi- sion, that N. was liable under the sta- tute, and that he was not entitled to recover over against E. Eglinton v. Nor- man, 46 L. J. (0. A.) 557 ; 3 Asp. N.S. 471. See also tit. Wreck. 494 a. Quaere, are the powers conferred by section 4 of the Eemoval of "Wrecks Act, 1877, on conservancy authorities for the removal of vessels sunk, &c, permis- sive or obligatory? The Douglas, 7 P. D. (C.A.)151; 51L.J. (P.D.)89; 5 Asp. 15. 494S. Semble, per Kay, J., such powers are permissive, and not obligatory. Dor- mont v. The Furness Railway Company, 11 Q. B. D. 496 ; 52 L. J. Q. B. D. 331 ; 5 Asp. 127. 494c. A local act vested B. harbour in the defendants, and gave them jurisdic- tion over P. harbour and P. channel (which also led to B. harbour), for the purpose of maintaining, improving, regu- lating and buoying the said harbour and channel, and a subsequent local act gave the defendants one half of certain light duties leviable upon ships entering or leaving P. harbour and channel to be applied by the defendants in maintain- ing, buoying, lighting, regulating and improving P. harbour and channel. A vessel was sunk in P. channel, and the defendants partially removed the wreck, but left the part unremoved insufficiently buoyed. The plaintiff's vessel having struck on the wreck, held, that the de- fendants were liable for the damage occa- sioned. Ibid. 494d. Vessels were required by act of OWNERS. Pt. II. General Responsibilities of Owners, &c. 1235 damage, whether caused by such, vessel itself or by any person on board. Ibid. s. 74. 496«. As to the manner in which such damages are to be recovered, Ibid. s. 75. 497. If the owner is compelled to pay for damage wilfully done under s. 74, by his servants, he may recover it from them. Ibid. s. 76. 498. The principal powers and duties of the Lords Commissioners of the Ad- miralty over harbours and navigation are transferred to the Board of Trade, by the Harbours Transfer Act, 1862 (c. 69). See also tit. Trade, Boahd of — . 499. Provisional orders may be made by the Board of Trade, empowering the undertakers (among other things) to make and alter bye-laws for the management of their works, subject to approval as therein mentioned. See the General Pier and Harbour Act, 1861 (c. 45), s. 15. 500. The undertaking authorized by any provisional order is subject to the provisions of the M. S. Act, 1854, and of every general act relating to harbours or dues on shipping, or on goods carried in ships, now or hereafter in force. See the General Pier and Harbour Act, 1861, Amendment Act (c. 19), s. 21. 501. By 10 & 11 Vict. c. 27, s. 83, the undertakers authorized by any special act to construct a dock may from time to time make such bye-laws as they shall think fit for (amongst other purposes), regulating the shipping, unshipping, and removing of all goods within the limits of the dock, and for regulating the duties and conduct of all persons, as well the servants of the undertakers as others, employed in the dock. A dock company, who were the undertakers under a special act, made bye-laws that no lumpers should be allowed to work on board any vessel in the dock but such as were authorized by the company, unless permission in writing had been previously obtained from the superintendent of the dock, and that servants of the company only should be allowed to work within the dock pre- mises, whether on ship, lighter or shore. Held, that the bye-laws were in excess of the power conferred upon the dock com- pany by sect. 83, and were therefore in- valid. Dick v. Badart, 10 Q. B. D. 387 ; 5 Asp. 49. 602. For powers and regulations of har- bour trustees, and harbour and dock mas- ters, and Queen's harbour masters, see tit. Collision, Pt. VIII. cc. 2, 3, pp. 277, 281—286. 502a. As to their powers in particular localities, Ibid. 5025. As to their powers in reference to dangerous goods, see Pt. V. 502c. As to their powers in reference to removal of wreck, see tit. Wreck, Pt. IX. pp.293— 313. See also Addenda. 7. Acts of Pilots. See Pt. VII. c. 36, and tit. Collision, Pt. I. c. 6, p. 189. 8. Crown Ships. See tit. Jurisdiction, Pt. I. c. 13, pp. 668—671. 9. Chartered Ships. See tit. Collision, Pt. I. c. 3, p. 186. 10. Steam Tugs. 503. As to the responsibilities of steam tugs in reference to damage by collision, see No. 455, p. 1228; and when a pilot is in charge, Pt. VII. c. 36, ss. 9, 10, and tit. Collision, Pt. IV. c. 8, p. 231. 11. Sea-going Fishing Ships. 1. Generally. 504. Eegistered sea-going ships ex- clusively employed in fishing on the coasts of the United Kingdom are exempt from the following clauses of the M. S. Act, 1854, viz. :— Sect. 136. As to being required to have certificated masters and mates. Sect. 145. As to the production of the apprentices before the Superintendents of Mercantile Marine Offices before each voyage, with the indentures, and the en- tering of the apprentices' names on the agreement with the crew. Sect. 147. As to the penalties for sup- plying seamen without a licence, for em- ploying unlicensed persons to engage seamen, and for receiving seamen ille- gally supplied. Sect. 157. As to the penalty for ship- ping seamen without such an agreement. Sect. 158. As to the reporting of changes in the crew. Sects. 161, 162. As to the production of agreements with the men, and of the certificates of the master and mates. Sect. 170. As to the discharge and payment of wages before a superinten- dent of a mercantile marine office in the United Kingdom. Sect. 256. As to the entry of fines in 1236 OWNERS. £t. II. General Responsibilities of Owners, &c. the official log book, and the deduction and payment thereof. Sect. 279. As to the deposit of agree- ments, indentures and assignments on arrival at a foreign port with the consul or officer of customs there. Sects. 280 — 287. As to the keeping of official log hooks, the entries to he made therein, the signatures thereto, the penal- ties for irregular keeping thereof, the reception thereof in evidence, and the delivery up or transmission of such logs, see M. S. Act Amendment Act, 1862 (c. 63), s. 13. 505. In all other respects the third part of the M. S. Act, 1854, applies to such vessels. Ibid. 506. Sects. 141, 142—144, 149, 163, 164, 166, 167, 171—174, 243 and 269 of the M. S. Act, 1854 (e. 104); part, of sect. 1 3 of the M. S. Act Amendment Act, 1 862 (c. 63) ; sect. 8 of the M. S. Act; 1873 (c. 85); and sect. 9 and part of sect. 10 of the M. S. (Payment of Wages and Eat- ing) Act, 1880 (c. 16), are repealed by the M. S. (Fishing Boats) Act, 1883 (c. 41). 506a. For provisions as to fishing boats and the sea-fishing service, including in- dentures of apprenticeship, agreements with seamen, their wages and discharge, discipline, certificates to skippers and second hands, and for the protection and punishment of seamen engaged in fishing, see the M. S. (Fishing Boats) Act, 1883 (c. 41). 507. For the convention made between Great Britain, Germany, Belgium, Den- mark, France and the Netherlands re- lating to fisheries in the North Sea, see the Sea Fisheries Act, 1883 (c. 22). 507a. For provisions confirming that convention making fishery regulations, defining fishery limits, giving powers to British and foreign sea-fishery officers, and imposing compensations for damage by offences, Ibid. 508. See, for decree of the Emperor of the French, relative to herring and mack- erel fishery, of September 24, 1884, 14 Hertslet's Treaties, p. 330. 508a. See, for ordinance of the King of Denmark relative to foreigners fishing near Iceland, of February 12, 1872, Ibid. p. 257. 509 See, for Danish law, notifying the Icelandic Ordinance of the 12th of Feb- ruary, 1872, relative to fishing boats, of December 17, 1875, Ibid. p. 268. 510. See, for notice to British fishermen fishing off the coast of Jutland or other possessions of the Danish Crown, of April, 1874, Ibid. p. 267. 511. See, for act of the legislature of Newfoundland to carry into effect the provisions of the Treaty of Washington as far as they relate to that colony, Ibid. p. 1232. 512. And for act of the legislature of Newfoundland to amend the law relating to the coast fisheries, Ibid. p. 1233.* * (114) The following is a list of the treaties, conventions, or regulations with reference to fishing vessels, concluded or agreed to by Great Britain with foreign States, up to April, 1879:— Country. Austria Belgium France Sandwich Islands Spain .... Sweden . . United States Treaty. Treaty — Navigation . . . . Convention — Coast Fishery . . Protocol — Fishery Limits . . Treaty — Newfoundland Fishery Treaty — Fishery, &c. . . ... Treaty — Newfoundland Fishery Convention — Coast Fisheries . Eegulations— Channel Fishery. Declaration — „ Fishermen Convention — Newfoundland Fishery Convention — Coast Fisheries . Treaty — Whalers Treaty — Newfoundland Fishery i) » ,, Treaty — Herrings SI 9) Treaty — Newfoundland Fishery Treaty — Fisheries, &c. , . . Sate. Hertslet's Treaties. 30 April, 186S . Vol. xn. p- 1109 22 March, 1852 . » ix. 156 23 July, 1862 . „ XI. 73 11 April 1713 . I. 237 10 Feb. 1763 . I- 239 3 Sept. 1783 . I- 241 23 April, 1814 . I- 247 30 Mar, 1814 . I- 249 2 Aug. 1839 . v. 86 24 May, 1843 . VI. 415 23 June, 1843 . VI. >> 447 14 Jan. 1847 . X. 749 11 Nov. 1867 . „ XII. 1125 10 July, 1851 . ,, IX. 687 2-13 July, 1713. II. 203 10 Feb. 1763 . II. 23a PSiS l 166 * n. j) 316 17 July, 1656 . H. 323 20 Oct. 1818 . . n. 392 8 May, 1871 . „ XIII. Si 970 OWNERS. Pt. II. General Responsibilities of Owners, &c. 1237 2. Lights. 513. Open boats and fishing vessels of less than twenty tons registered tonnage, when under way, and when not having their nets, trawls, dredges or lines in the water, shall not he obliged to carry the coloured side lights, but every such boat or vessel shall in lieu thereof have ready at hand a lantern with a green glass on one side and a red glass on the other side, and on approaching to, or being approached by, another vessel such lan- tern shall be exhibited in sufficient time to prevent collision, so that the green light shall not be seen on the port side nor the red light on the starboard side. International Steering and Sailing Eules, Art. 10, under Order in Council of 10th Aug. 1884. 514. The following portion of this ar- ticle applies only to fishing vessels and boats when in the sea oft' the coast of Europe, lying N. of Cape Finisterre : — (a) All fishing vessels and fishing boats of twenty tons registered tonnage or upwards, when under way, and when not required by the follow- ing regulations in this article to carry and show the lights therein named, shall carry and show the same lights as other vessels under way. (b) All vessels when engaged in fishing with drift nets shall exhibit two white lights from any part of the vessel where they can best be seen. Such lights shall be placed so that the vertical distance between them shall not be less than six feet and not more than ten feet, and so that the horizontal distance between them, measured in a straight line with the keel of the vessel, shall not be less than five feet and not more than ten feet. The lower of these two lights shall be the more forward, and both of them shall be of such a character, and con- tained in lanterns of such construc- tion, as to show all round the ho- rizon on a dark night -with a clear atmosphere for a distance of not less than three miles. (c) A vessel employed in line fishing with her lines out shall carry the same lights as a vessel when en- gaged in fishing with drift nets. (d) If a vessel when fishing becomes stationary in consequence of her gear getting fast to a rock or other obstruction, she shall show the light and make the fog sig- nal for a vessel at anchor. (e) Pishing boats and open boats may at any time use a flare-up in addi- tion to the lights which they are by this article required to carry and show. All flare-up lights, when exhibited by a vessel trawl- ing, dredging or fishing with any kind of drag net, shall be shown at the after part of the vessel, ex- cepting that if the vessel is hang- ing by her stern to her trawl, dredge or drag net they shall be exhibited from her bow. (f ) Every fishing vessel and every open boat, when at anchor between sun- set and sunrise, shall exhibit a white light visible all round the horizon at a distance of at leaEt one mile. (g) In fog, mist or falling snow, a drift net vessel attached to her nets, and a vessel when trawling, dredging or fishing with any kind of drag net, and a vessel employed in line fishing with her lines out, shall at intervals of not more than two minutes make a blast with her fog-horn and ring her bell alter- nately. (h) A ship which is being overtaken by another shall show from her stern to such last-mentioned ship a white light or a flare-up light. International Steering and Sailing Eules, under Order in Council of 11th August, 1884, Art. 11 * 515. A smack with her trawl down had a globular white light exhibited from her weather crosstree partially hidden from overtaking vessels by her sails, and did not exhibit any other white light or flare- up to an overtaking steamer. Held, that this was an infringement of Art. 11 of Eules of 1879. The Pacific, 9 P. D. 124. For the rules, see 4 P. D. 244. t * (114a) These rules came into force 1st September, 1884. t (1146) Where trawlers and other sailing vessels whose gross registered tonnage does not exceed eighty tons cannot with safety and convenience of working carry their side lights on stanchions they may be carried in the rigging, provided the surveyors are satis- fied that they are so fitted as to show the lights for the distance and in the direction required by the regulations. This is not to be allowed in the case of steamers. Board 1238 OWNERS. Pt. II. General Responsibilities of Owners, &c. 516. For the international regulations in regard to lights and fog signals gene- rally, see tit. Collision, Pt. V. pp. 240 — 251, and Ibid, in Addenda. 12. Sea-going Ships of General Lighthouse Boards. 517. Sea-going ships belonging to any of the three Lighthouse Boards are like registered sea-going fishing ships ex- empted from the operation of certain sec- tions of the Merchant Shipping Act, 1854, though otherwise subject to that act. See M. S. Act Amendment Act, 1862, s. 13. 13. Sea-going Pleasure Yachts. 518. Sea-going ships, being pleasure yachts, are similarly exempted. Ibid. 14. British and French Fishing Vessels under the Sea Fish- eries Acts. 1 . Generally* 519. For the provisions of the Conven- tion of 2nd August, 1839, between Great Britain and France, concerning the sea fisheries between the British Islands and France, and the act of parliament con- firming the same, see 6 & 7 Yict. c. 79, and the Convention thereto annexed. 520. As to the confirmation of the rules of 23rd June, 1843, made in pursu- ance of that Convention, see the Schedule to the Sea Fisheries Act, 1868 (c 45), Art.41. 521. For the provisions of the Conven- tion of 11th November, 1867, between England and France, concerning the same sea fisheries, and the act of parliament confirming the same, and amending the laws relating to British sea fisheries gene- rally, see the Sea Fisheries Act, 1868 (c. 45), s. 6, and the Convention thereto annexed; and 2 Maude & Pollock on Merc. Ship. 4th ed. by Pollock & Bruce, p. cclxxix. and notes thereto. 522. The Convention of the 2nd August, 1839, and rules of 23rd June, 1843, are to continue in force until the Convention of 1 lth November, 1867, comes into opera- tion. See Art. 41 of that Convention annexed to the Sea Fisheries Act, 1868, c. 45. The Convention of 11th November; 1867, has not yet come into operation, and no act of parliament has been passed in pursuance of Art. 39 thereof. 523. Although the act of 6 & 7 Vict. c. 79, is repealed, by the Sea Fisheries Act, 1868, c. 45, sched. 2, it has been temporarily revived, see the Fisheries (Oyster, Crab and Lobster) Act, 1877 (c. 42), s. 15, which enacts that notwith- standing anything in the Sea Fisheries Act, 1868, the 6 & 7 Vict. c. 79, so far as regards French fishermen and French sea-fishing boats, shall be in force as if it had not been repealed, and shall continue in force until the day when the Conven- tion of 11th November, 1867, shall come into operation. 524. See for various other acts re- lating to British sea fisheries generally, repealed by the Sea Fisheries Act, 1868, Ibid. Sched. 2. 525. The term " sea-fishing boat " in- cludes every vessel of whatever size, and in whatever way propelled, which is used by any person in sea-fishing, or in carry- ing on the business of a sea-fisherman. Ibid. s. 5. 526. See as to the interpretation of terms in this act, Ibid. 527. Her Majesty may from time to time make and alter regulations for carrying this act into effect, and impose penalties for breach not exceeding £10. Ibid. s. 7. 528. As to British officers of the navy and coast guard, consular officers, and officers of customs, and French officers of the navy, and other French officers duly of Trade Instructions as to the Survey of Passenger Accommodation, Crew, Spaces, Lights and Fog Signals, 1884, § 82 a, p. 51. * (115) The Sea Fisheries Act, 1868 (c. 45), came into operation on 1st February, 1869, but the convention referred to therein has not yet come into operation ; and the Con- vention of 2nd Aug. 1839, the Rules of 23rd June, 1843, made under it, and the act of 6 & 7 Vict. o. 79, confirming them, are tem- porarily revived (see No. 523 in the text), but semile only as far as regards French fishermen and French sea-fishing boats. In other respects that act stands repealed, and the Sea Fisheries Act, 1868 (c. 45), is in force. (115a) But queer e, are not the provisions of the Act of 1868 binding on British sub- jects ?• See sect. 5 of that act, and note to 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. cclxxix. (116) For the French notification of 26th January, 1869, respecting the delay in carry- ing into effect the Fishery Convention of November 11, 1867, see 14 Hertslet, p. 1200. OWNERS. Pt. II. General Responsibilities of Owners, &c. 1239 appointed, authorized to enforce the pro- visions of this act, the powers of such officers, the enactments for their protec- tion, and the penalties for disobeying or obstructing them, Ibid. ss. 8, 9, 10 and 11. 529. For the Convention with France and other powers relating to the fisheries in the North Sea, see the Sea Fisheries Aot, 1883 (c. 22). 530. All fishing boats, all rigging gear or other appurtenances of fishing boats, all nets, buoys, floats, or other fishing implements whatsoever, found or picked up at sea, shall, as soon as possible, be delivered to the receiver of wreck if the article saved be taken into the United Kingdom, and to the commissary of marine if the article saved be taken into France. The receiver of wreck or the commissary of marine, as the case may be, shall restore the articles saved to the owners thereof, or to their representa- tives. These functionaries shall fix the amount which the owners shall pay to the salvors. See the Convention in the 1st Sched. to the act, Art. 22. 531. No boat shall anchor between sunset and sunrise on grounds where drift-net fishing is actually going on. This prohibition shall not apply to an- chorings which may take place in con- sequence of accidents, or any other com- pulsory circumstances. The Sea Fisheries Act, 1868 (c. 45), s. 13, and 1st Sched. Art. 12. See also pp. 1205, 1206. 2. Lights. 532. Vessels fishing with drift nets shall carry on one of their masts two lights, one over the other, 3 feet (1 metre, French) apart. These lights shall be kept up during all the time their nets shall be in the sea between sunset and sunrise. See the Convention in 1st Sched. Art. 13. 533. The act of 6 & 7 Vict. c. 79, con- tains similar provisions. See same, re- citing Art. 53 of the Convention of 2nd August, 1839. Penalty for breach, see Art. 73. 534. Subject to the exceptions or ad- ditions mentioned in the two preceding articles, the fishing boats of the two countries shall conform to the general rules respecting lights which have been adopted by the two countries. See the Sea Fisheries Act, 1868 (c. 45), 1st Sched. Art. 14. 535. Arts. 13 and 14 of the first sche- dule to this act shall, as to all sea-fishing boats within the exclusive fishery limits of the British Islands, and as to British sea-fishing boats outside of these limits, have the same force as if they were regu- lations respecting.lights within the mean- ing of the acts relating to merchant ship- ping, with this addition, that any sea- fishery officer shall have the same powers of enforcing such regulations as are given to any officer by such acts, and any in- fringement of the regulations contained in Arts. 13 and 14 shall be deemed an offence within the meaning of the portion of this act which gives power to sea- fishery officers. Ibid. s. 20. 536. It is forbidden to all boats to anchor between sunset and sunrise on grounds where herring or mackerel drift net fishing is going on. This prohibition does not apply to anchorages which may take place in consequence of accidents, or any other compulsory circumstances, but in such case the master of the boat thus obliged to anchor shall hoist, so that they shall be seen from a distance, two lights placed horizontally, about three feet (one metre, French) apart, and shall keep these lights up all the time the boat shall remain at anchor. See 6 & 7 Vict. c. 79, reciting Art. 52 of Convention of 2nd August, 1839. Penalty for breach, see Art. 73. 537. As to the lights to be carried by fishing vessels generally when at anchor, see c. 11, s. 2. 538. As to lights mentioned in Art. 10 of the Eules of 1879, see 4 P. D. 246. 539. All fishermen are forbidden, ex- cept in cases of absolute necessity, to show lights under any other circumstances than those mentioned in the present regu- lations. See 6 & 7 Vict. c. 79, reciting Art. 54 of Convention of 2nd August, 1839. Penalty for breach, see Art. 73. 3. Trawling. 540. Trawl boats shall not commence fishing at a less distance than three miles from any boat fishing with drift nets. If trawl boats have already shot their nets they must not come nearer to boats fish- ing with drift nets than the distance above mentioned. The Sea Fisheries Act, 1868 (c. 45), s. 13, and 1st Sched Art. 15. 541. As to the lights to be carried by vessels trawling, see c. 11, s. 2. 1240 OWNERS. Pt. II. General Responsibilities of Owners, &c. 4. Drift-net Fishing.* 542. No boat fishing with, drift nets shall shoot its nets so- near to any other hoat which has already shot its nets on the fishing ground as to interfere with its operations. The Sea Fisheries Act, 1868 (c. 45), s. 13, and 1st Sched. Art. 16. 543. No decked hoat fishing with drift nets shall shoot its nets at a less distance than a quarter of a mile from any un- decked boat which is already engaged in fishing. Ibid. Art. 17. 544. Nets shall not be set or anchored in any place where drift-net fishing is actually going on. Ibid. Art. 19. 545. If the spot where fishing is going on should be so near to the fishery limits of one of the two countries that the boats of the other country would, by observing the regulations prescribed by Arts. 15, 16 and 17 preceding, be prevented from taking part in the fishery, such boats shall be at liberty to shoot their nets at a less distance than that so prescribed; but in such case the fishermen shall be responsible for any damage or losses which may be caused by the drifting of their boats. Ibid. Art. 18. 546. No one shall make fast or hold on his boat to the nets, buoys, floats, or any part of the fishing tackle belonging to another boat. Ibid. Art. 20. 546a. No person shall hook or lift up the nets, lines, or other fishing imple- ments belonging to another person. Ibid. 547. When nets of different boats get foul of each other, the master of one boat shall not cut the nets of another boat ex- cept by mutual consent, and unless it be found impossible to clear them by other means. Ibid. Art. 21. 548. As to the lights to be carried by vessels drift-net fishing, see cap. 11, s. 2, p. 1237. 549. As to the distance from each other at which decked and undecked herring boats shall shoot their nets, see 6 & 7 Vict. c. 79, Arts. 29 to 33. Penalty for breach, see Art. 73. 550. Boats going to fish for mackerel with drift nets are required, when they shall arrive on the fishing ground, to lower * (117) The Act of 6 & 7 Yict., though re- pealed, being temporarily revived, as ex- plained, supra, No. 523, it is expedient to refer to some of its leading provisions, which are as follows : — (118) In all cases where the breach of any of the articles, rules or bye-laws, by any- French subject, within the limits of fishery ex- clusively reserved to British subjects, or by British subjects whether or not within those limits, shall have caused any loss or damage, any magistrate or justice of the peace may take evidence, award compensation to the injured party, and enforce payment thereof, like a penalty for any ofience against the articles may be enforced. See 6 & 7 Vict. c. 79, s. 14. (119) The words "British vessel" mean every fishing vessel or fishing boat, being Irish or British, or belonging to Guernsey, Jersey, Sark, Alderney, or Man, or island thereunto belonging; and the words "British port" mean any port of Great Britain or Ireland, or of any of the said islands. Ibid. s. 18. (120) For provisions as to the trial and judgment in a summary manner, and at as little expense as possible, of all differences between fishing vessels, before a British magistrate or French tribunal, as directed by the act, and the fines which may be im- posed, see Ibid. ss. 11, 12, and Arts. 69 to 73. (121) For provisions as to arbitration be- tween fishing vessels on complaint of breaches of the regulations, and as to circumstances likely to cause damage, by the commanders of cruisers, consular agents, collectors of customs, or commissaries of marine of both countries, see Ibid. Arts. 63 to 69, and 98. (122) For provisions for taking the offend- ing fishing boat into the nearest port, for detaining her there for a period not exceed- ing four days, for obtaining there evidence on both sides as to the alleged breach, for transmitting the depositions, minutes of proceedings, and other documents relating thereto, duly authenticated, to the consular agent in the port where the trial is to take place, for the communication thereof to the collector of customs, or minister of marine, and for his proceeding, if necessary, with the trial, see Ibid. Arts. 65 to 69. S23) For provisions empowering anyBri- consul in France to take any statement on oath from any British subject charged with any offence against the Articles of the Convention of the 2nd August, 1839, between this country and France, as to the fisheries between the two countries, and rendering the same admissible in evidence, see 18 & 19 Vict. c. 101, s. 5. (124) As to the limits of the fishery dis-. tricts to be observed by the subjects of either nation, see 6 & 7 Vict. c. 79, reciting the Convention, Arts. 1 to 5, 34, and 76 to 88. (125) As to the distance trawl boats shall keep from boats fishing with drift nets, see Ibid. Arts. 24, 25, 26 ; and drift-net boats from each other, see Ibid. Art. 40. Penalty for breach, see Art. 73. OWNERS. Pt.II. General Responsibilities of Owners, &c. 1241 all sails, to show that they have taken their berths. Ibid. Art. 39. Penalty for breach, ibid. 551. Fishermen using bratt nets, tram- mels, and other set or anchored nets, shall place buoys on such nets, in order that vessels sailing in those places may avoid them. Ibid. Art. 43. Penalty for breach, ibid. 552. Such bratt nets, trammels, or other set or anchored nets, shall not, except in unavoidable cases, remain more than twenty-four hours in the sea without being taken up. Ibid. Art. 44. Penalty for breach, ibid. 553. It is forbidden to set or anchor nets or any other fishing implement, in any place where herring or mackerel drift net fishing is going on. Ibid. Art. 57, and see Art. 35. Penalty for breach, ibid. 554. For the purpose of distinguishing by day drift net fishing boats from trawl boats, both shall carry at the masthead vanes, which shall be at least eight inches (twenty centimetres, French) in height, and two feet (sixty-one centimetres) in length. See 6 & 7 Vict. c. 79 (reciting the convention concerning the fisheries between this country and France), Art. 50. 554a. The colours of these vanes shall be, for — British trawl boats, red. French trawl boats, blue. British drift boats, white and red. French drift boats, white and blue. Ibid. 5545. The vanes of drift boats are to be divided vertically into two equal parts, of which the white is to be nearest to the mast. Penalty for breach, ibid. 555. No other fishing boats are to carry vanes similar to those mentioned in the preceding article. Ibid. Art. 51. Penalty for breach, ibid. 556. See for other portions of the 6 & 7 Vict. c. 79, revived by the Fisheries (Oyster, Crab and Lobster) Act, 1877 (c. 42), s. 15, 2 Maude & Poll. (4th ed. by Pollock & Bruce), pp. 354 — 366, where they are set out.* 15. For Cargo. 557. As to the shipowners' responsi- bilities in reference to damage to cargo, see tit. Goods, Carriage of — , Pt. VI. p. 588 et seq. 16. Of Cargo. 558. A cargo of blubber became af- fected by decomposition owing to the unusual duration of the voyage through stress of weather. The master then put into an intermediate port, where the owner of the cargo resided, who however refused to give any directions as to its treatment or otherwise. The master then, acting under advice, treated the cargo and carried it to its destination. The treatment to which the cargo was sub- jected was necessary to its transport, and it benefited by it. Held, that the owner of the cargo was liable for the expenses incurred by the master in treating the cargo, and for demurrage while the cargo was being so treated. Garriock v. Walker, Cases in the Court of Session, 4th series, vol. 1, p. 100. [Scotch.] 559. Per Lord Benholme. It was only the necessity of operating on the cargo to render it capable of transport, and not the fact that it had been increased in value that made its owner liable. Ibid. * (126) For provisions empowering the Board of Trade to make bye-laws for the more effectual performance of the convention between this country and France, concern- ing the fisheries between those countries, and the publication and proof of such bye-laws, see 6 & 7 Vict. c. 79, ss. 4, 5, 7. (127) No such bye-laws have been made, but only certain directions issued by H. M. Commissioners of Customs as to the mark- ing and numbering of fishing vessels, as to which, see Order of Feb. 17, 1844, of H. M. Commissioners of Customs, London, No. 14, 1844. (128) The terms "boats" and "vessels" in the convention are to be considered as synony- mous. Ibid. p. (129) British and French fishermen fishing in any portion of the seas lying between the coasts of Great Britain and France are sub- ject to the provisions in the act and regula- tions. See Letter of Board of Trade of April 29, 1846, No. 59, 1846. (130) See for an act of the Government of Canada to amend the act respecting fish- ing by foreign vessels (May 12, 1870), 13 Hertslet, p. 1165. (131) And for an act of the Government of Canada further to amend the act respect- ing fishing by foreign vessels. Ibid. p. 1220. (131a) See for Consolidated Statutes of Newfoundland, so far as they relate to coast fisheries (1872), ibid, p. 1229. 4l 1242 OWNERS. Pt. II. General Responsibilities of Owners, &c. 560. As to "bottomry of cargo, see tit. Bottomry, p. 136. 561. As to average, in reference to cargo, see tit. Average, p. 60. 562. As to the rights and responsi- bilities of owners of ship and. owners of cargo, in reference to damage to cargo, see tit. Goods, Carriage of — , pp. 558 et seq. 563. As to carriage of deck cargo, see this tit. Pt. V. c 1. 564. As to the addition of the space occupied by deck cargo to the registered tonnage for the calculation of tonnage dues, see Pt. I. c. 3, s. 6, suh-div. (e), p. 1194. 17. British Coasting Trade. 1. Of the United Kingdom. 565. The coasting trade of the United Kingdom opened to foreign ships. See 17 & 18 Vict. c. 5, the Harbours and Passing Tolls Act, 1861 (c. 47), s. 10, and the Customs Laws Consolidation Act, 1876 (c. 36), s. 141. 566. For the regulations for the en- gagement and discharge of seamen in home-trade ships ; and as to the employ- ment of certificated masters and mates, see tit. Seamen. 567. "Home-trade ship" includes every ship employed in trading within the United Kingdom, the islands of Guern- sey, Jersey, Sark, Alderney, and Man, and the continent of Europe between the river Elbe and Brest inclusive. See M. S. Act, 1854 (c.104), s. 2. 568. " Home-trade passenger ship " means every home-trade ship employed in carrying passengers. Ibid. 2. Of British Possessions* 569. As to the regulation of the coast- ing trade of British possessions by the legislatures thereof, subject to certain conditions, see the M. S. (Colonial) Act, 1869 (c. ll), ss. 4, 5. 570. "British possession" means any colony, plantation, island, territory or set- tlement within her Majesty's dominions, and not within the " United Kingdom." See M. S. Act, 1854 (c. 104), s. 2. 571. Canada is a British possession within the meaning of the M. S. Act, 1854, and the acts amending the same. See the M. S. (Colonial) Act, 1869 (c. 11), s. 7. 18. Forfeitures. 1 . Generally. 572. Offences under s. 103 of the M. S. Act, 1854, punishable with forfeiture, vest the property in the vessel in the Crown immediately upon the commission of any of such offences ; and a bond fide pur- chaser for value, without notice, who be- comes such after the commission of the offence, but before seizure, is not pro- tected. The Annandale, 2 P. D. 179, 218; 46 L. J. P. D. & A. 68 ; 47 ibid. (C. A.) 3 ; 3 Asp. N.S. 383, 489. 573. As to the forfeiture of steamers under the Passenger Acts and under the Chinese Passenger Act, see this tit. Pt. IV. cc. 5 and 51. 2. Jurisdiction of Courts of Admiralty. (a) Generally. 574. Any ship which has, either wholly or as to any share therein, become sub- ject to forfeiture, for use of a certificate of registry not legally granted, for assuming or concealing British character, or by reason of false declaration as to qualifi- *(132) The coasting trade of the United Kingdom was opened to foreign ships by 17 Vict. c. 5. For the recent acts thereon, and as to customs, see the Customs Consoli- dation Act, 1876 (c. 36), s. 140, and the Cus- toms and Inland Revenue Act, 1876 (c. 21), s. 9. As to the old navigation laws and cases thereon, see 1 Pritchard's Admiralty Digest, 2nd ed. p. 420. (133) For the Order in Council authorizing the conveyance of goods and passengers in other than British ships in the coasting trade of St. Lucia, June 29, 1865, see 13 Hertslet, p. 1079. (133a) The coasting and carrying trade between one port and another in the Indian dominions of each of the high contracting parties shall be open to the vessels of the other without any restriction except such as is or may be imposed upon national vessels, g^reatyof Commerce and Extradition between reat Britain and Portugal, with reference to their Indian Possessions, signed at Lisbon, Dec. 26, 1878.) 14 ibid. p. 1121. (1336) Foreign vessels may continue freely to carry on the coasting trade between the ports of the empire in which there may be a custom-house or a customs' revenue depart- ment. (Regulation for putting in execution the Law of the 25th August, 1873, Art. XL s. 5, Bio de Janeiro, April 11, 1874.) Art. X. ibid. p. 211. (133c) See for Danish law throwing open the Danish coasting trade, and the coasting trade of Iceland and the Faroe Islands to foreign vessels (April 14 and 17, 1868), ibid. p. 1022. OWNERS. Pt. II. General Responsibilities of Owners, &e. 1243 cation, or of unqualified persons becoming entitled, may be brought for adjudication before - the High Court of Admiralty in England or Ireland, or any court having Admiralty jurisdiction in her Majesty's dominions ; and such court may make such order in the case as it may think fit. See M. 8. Act, 1854 (c. 104), ss. 52, 103. , 575. As to the forfeiture of ships, boats, &c. for breach of customs regula- tions, see the Customs Laws Consolidation Act, 1876 (c. 36), s. 202 ; as to the course of procedure for recovering penalties, en- forcing forfeitures, and punishing offend- ers under the Customs Acts, Ibid. ss. 218 — 274 ; and as to the application of penalties in the Channel Islands, Ibid. s. 160 ; and see the Customs Consolidation Act, 1853 (c. 107), s. 183, so far as not repealed by the former act. (b) To award Share to Seizor. 576. The court in which a ship or share is proceeded against, for forfeiture, for using a certificate of registry not legally granted, for assuming or concealing a British character, or by reason of false declaration as to qualification, or of un- qualified person becoming entitled, may award to the seizor such portion of the proceeds of sale of the forfeited ship or share as it may think right.- Ibid. ss. 52, 103. 3. Seizors. (a) Who may be — . 577. Any commissioned officer on full pay in the military or naval service of her Majesty, any British officer of cus- toms, or British consular officer, may seize and detain any ship which has, either wholly or as to any share therein, become subject to forfeiture as therein mentioned, and bring her for adjudica- tion before the courts therein mentioned. Ibid. 4. Costs and Damages.* 578. No such officer shall be respon- sible in respect of any such seizure or detention, notwithstanding the ship is not brought in for adjudication, or is declared not liable to forfeiture, if it is shown to the satisfaction of the court that there were reasonable grounds for seizure or detention ; but if no such grounds are shown, the court may award costs and damages to any party aggrieved, and make such other order as it thinks just. Ibid. s. 104. 579. Undoubtedly there may be cases in which there is either mala fides, or that crassa negligentia, which implies malice, which would justify a Court of Admiralty in giving damages, as in an action brought at common law damages may be obtained. Xenos v. Aldersley, 12 Moo. P. C. C. 359. 580. The criterion in Xenos v. Al- dersley, supra, applied in considering whether there was probable cause for the seizure of goods for breach of cus- toms ordinances. The real question in that case, following the principle laid down with regard to actions of this description, comes to this, Is there, or is there not, reason to say that the action was so unwarrantably brought, or brought with so little colour, or so little foundation, that it rather implies malice on the part of the plaintiff, or that gross negligence, which is equivalent to it? Wilson v. The Queen, L. E. 1 P. C. 405. 580a. In 4he Court of Admiralty the proceedings are more convenient, because, in the action in. which the main question is disposed of, damages may be awarded. Ibid. 581. An officer of one of H.M.'s ships seizing and detaining a ship under the bond fide belief that there is reasonable cause for suspecting that an offence under the Pacific Islanders Protection Act, 1875 (c. 51), has been committed by that ship is not liable in damages even where the ship is not in fact employed in the com- mission of any such offence, as where she has taken labourers on board before the act came into operation. Burns v. Nowell, 4 Asp. 323. 581a. See also tit. Costs, c. 20, s. 12, p. 372. * (134) Probable cause in all eases of seizure has a fixed and well-known meaning, and imports oircumstances which warrant suspi- cion, though not sufficient to justify con- demnation. Locke v. United States, 7 Cranch, 339; The George, 1 Mason, 24. [Amebican.] Stuart's Vice-Adm. Eep. 115. [Loweb Ca t NADA.] (135) As to what would and would not amount to probable cause of seizure in the American Courts, see Dunlap's Adm. Prac. 2nd ed. 266. 4l2 1^44 OWNERS. Pt.Il General ResponsibiUties of Owners, &C* 5. Assumption of British, Character. (a) Generally. 582. If any person uses the British flag and assumes the British national character on hoard any ship owned in whole or in part by any persons not entitled by law to own British ships, for the purpose of making such ship appear to be a British ship, the ship shall be forfeited to her Majesty, unless such assumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in exercise of some belligerent right. See M. S. Act, 1854 (c. 104), s. 103, sub-s. 1. (b) Evidence. 583. In any proceeding for enforcing forfeiture for use of the British flag and assumption of the British national cha- racter against a vessel as not entitled to do so, the burden of proving a title to do so lies upon the owners so acting. Ibid. s. 103. 6, Concealment of British Character. 584. If the master or owner of any British ship does or permits to be done any thing, or carries or permits to be carried any documents, with intent to conceal the British character of such ship from any person entitled by British law to inquire into the same, or to assume a foreign character, or with intent to de- ceive any such person, such ship shall be forfeited to her Majesty ; and the master, if he is privy to the commission of the offence, is guilty of a misdemeanour. Ibid, sub-s. 2. 585. A British subject, to prevent the seizure of his vessel as unseaworthy, falsely represented to the collector of customs at the port of registry that he had sold her to foreigners, and so procured the closing of the registry, and sailed her under a foreign certificate. Held, that the vessel was liable to forfeiture under the 103rd section of the M. S. Act, 1854. The Sceptre, 3 Asp. N.8. 269. See also No. 573. 7. Unqualified Person entitled. ; 586. If any unqualified person, except in the case of such transmitted interests as therein mentioned, acquires as owner any interest, legal or beneficial, in a ship using a British flag and assuming the British character, such interest shall be forfeited to her Majesty. . See M. S. Act, 1854 (c. 104), s. 103, sub-s. 3. 587. For provisions for forfeiture of ship or share belonging to unqualified owner, if application for a sale thereof is not made within the time therein limited, to the proper court therein mentioned, or if the application is refused by the court, see Ibid. s. 64 ; and Pt. I. c. 3, s. 26, p. 1205. 8. False Declaration of Qualification. 588. If any person, on behalf of him- self or any other person or body of per- sons, wilfully makes a false declaration touching his or their qualification to own British ships or shares therein, he is guilty of a misdemeanour ; and the ship or share in respect of which such declara- tion is made, if not forfeited under a foregoing provision, shall, to the extent of the interest therein of the declarant, and, unless it is shown that he had no authority to make the same for the par- ties interested, be forfeited to her Majesty. See M. S. Act, 1854 (c. 104), s. 103, sub-s. 4. 9. Use of Illegal Certificate of Registry* 589. If the master or owner of any ship attempts to use for her navigation a certificate of registry not legally granted, he shall be guilty of a misdemeanour, and any commissioned officer on full pay in the military or naval service of her Ma- jesty, any British officer of customs, or any British consular officer, may seize and detain her, and bring her for adjudi- cation before the High Court of Admi-- ralty in England or Ireland or any court having Admiralty jurisdiction in her Ma- jesty's dominions ; and if such court is of opinion that such use or attempt at use has taken place, it shall pronounce the ship, her tackle, apparel, and furniture, forfeited to her Majesty, and may award such portion of the proceeds of sale of such ship as- it may think just to the officer so bringing her in for adjudication. Ibid. s. 52. 19. Non-recognized British Ship. 590. Whenever it is declared by this act that a ship belonging to any person or body corporate qualified according to thiS act to be owners of British ships shall not OWNERS. Pt. II. General Responsibilities of Owners, &c. .1245 be recognized as a British, ship, such ship shall not be entitled to any benefits or protection enjoyed by British ships, nor to use the British flag or assume the British national character ; but, as regards pay- ment of dues, liability to pains and penal- ties, and punishment of offences on board her, shall be dealt with as if she were a recognized British ship. Ibid. s. 106. 591. The provisions contained in the ninth part of the M. S. Act, 1854, for the limitation of liability of owners are not • to extend to any British ship not being a recognized British ship within the mean- ing of the act. Ibid. s. 516. 592. If any alteration is made in the length or capacity of the space allowed for the propelling power, or any cabins are fitted up in such space, the ship is to be deemed a ship not registered until re- measured. Ibid. s. 23, sub-s. 4. 593. "Whenever any registered ship is so altered as not to correspond with the particulars in the register-book, such al- terations must be registered, or the ship registered anew, and, in default, the ship is to be deemed not duly registered and not to be recognized as a British ship. Ibid. ss. 84—87. 20. Non-registered Owner. 594. Whenever any person is benefi- cially interested, otherwise than by mort- gage, in any ship or share registered in the name of another person as owner, both such persons shall be subject to all pecuniary penalties imposed by this or by any other act on owners of ships or shares therein, and proceedings may be taken for the enforcement of any such penalties against both or either of them, with or without joining the other. Ibid. s. 100. 21. Colours. 1. Generally, 595. The colours which may be worn by merchant ships are the red ensign and the union jack, with a white border. Ibid. s. 105. 2. Improper. (a) Generally.* 596. If any other colours, or those usually worn by her Majesty's ships, or resembling them, or the pendant carried by her Majesty's ships, are hoisted on board any British merchant ship or boat without warrant from her Majesty or the Admiralty, penalty against the master, or owner if on board, and every person hoisting or assisting in hoisting the same, not exceeding £500. Ibid. (b) Seizors. 597. Any officer on full pay in the Queen's military or naval service, any British officer of customs, or any British consular officer, may board any such ship or boat, and take away such jack, colours, or pendant. Ibid. (c) Forfeiture. 598. The jack, colours, or pendant so seized are forfeited to her Majesty. Ibid. * (136) Cases of wearing illegal colours were formerly within the jurisdiction of the Court of Admiralty, but they were not of frequent occurrence. It generally happened that when a complaint was made against the master of a vessel for wearing illegal colours, the complaint was forwarded* to the Lords of the Admiralty, who sent instructions to their proctor to proceed against him. This generally produced a memorial to the Lords of the Admiralty, and where fair grounds were stated as an excuse or in palliation of the offence, the penalty was not sued for, but in other cases which called for punishment they were proceeded with and the penalty exacted. See Evidence of Sir Herbert Jenner before the Select Committee of the House of Commons on Admiralty Courts (August 15, 1833), p. 35. (137) For the cases in the Court of Admi- ralty thereon, see The Minerva, 3 C. Rob. 34; The King in his Office of Admiralty v. Miller, 1 Hagg. 197 ; The King v. Benson, 3 Hagg. 96 ; The Queen in her Office of Admiralty v. Ewen, 2 Jur. N.S. 454. (138) The provisions in 8 & 9 Vict. c. 87, s. 10, as to the mode of procedure in the Admiralty Court and elsewhere against per- sons for hoisting illegal colours, are repealed by the M. S. Repeal Act, 1854 _(c. 120). and are not re-enacted in sect. 105 of the M. S. Act, 1854, or elsewhere. It would seem, therefore, that in default of express provi- sion the Admiralty Court had no longer any jurisdiction in this matter, but that the course of procedure to enforce the penalty must be by penal action in the Court of Queen's Bench by her Majesty's Attorney- General, ex officio. 1246 OWNERS. Pt. II. General Responsibilities of Owners, &c. 22. Lights and Fog Signals. 1. Generally. 599. The acts relating to the manufac- turing, keeping, and carrying of gun- powder, nitro-glyeerine, and other explo- sive substances include fog signals,lvEere these are of an explosive nature, are the Explosives Act, 1875 (c. 17), s. 3, and the Explosive Substances Act, 1883 (e. 3), s. 8. See as to dangerous goods, Pt. V. • 600. As to the lights and fog signals to be used by ships under weigh or at anchor, see tit. Collision, Pts. V. and VI., p. 178. 2. Inspection and Certificate.* 601. The surveyors under the third part of the M. S. Act, 1854, or such other per- sons as the Board of Trade may appoint, may inspect any ships for the purpose of seeing they are properly provided with lights and fog signals, and shall for that purpose have the powers given to inspec- tors by sect. 14 of the M. S. Act, 1854. If any such officer finds any ship is not so provided, he shall give the master or owner notice in writing, pointing out the deficiency, and what is, in his opinion, re- quisite in order to remedy it. Every notice so given shall be communicated as directed by the Board of Trade to the collector or collectors of customs at any port from which such ship may seek to clear or at which her transire is to be obtained ; and no collector to whom such communication is made shall clear such ship outwards, grant her a transire, or allow her to pro- ceed to sea, without a certificate under the hand of one of such officers that the ship is properly provided with lights and fog signals. See M. S. Act Amendment Act, 1862 (c. 63), s. 30. 602. When the survey of a ship is made for the purpose of a declaration or certi- ficate under this act, the person appointed to make the survey shall, if so required by the owner, be accompanied on the survey by some person appointed by the owner, and if the two persons agree, there shall be no appeal to the Court of Survey. See M. S. Act, 1876 (c. 80), s. 14. 3. Appeal from Refusal of Certificate. 603. If a shipowner feels aggrieved by the refusal of the above required certifi- cate as to lights and fog signals, he may appeal in the prescribed manner to the Court of Survey for the port or district where the ship then is. Ibid. 604. On such appeal the judge shall report on the question raised by the appeal to the Board of Trade, which, when satis- fied that the requirements of the report and the other provisions of the enactments have been complied with, may give or direct a surveyor or person duly appointed, to give the required certificate. Ibid. 605. Subject as therein mentioned the provisions of this act as to the Court of Survey and appeals thereto apply to the Court of Survey when acting under this section. Ibid. 606. As to Courts of Survey and the procedure therein, see Pt. III. e. 2, p. 1265. 4. Costs of Appeal.] See tit. Costs, c. 30, s. 6, p. 398. * (139) As to the fees and expenses to be charged in respect of the inspection of lights and fog signals, see note 59, p. 1209. (140) For form of surveyor of Board of Trade's certificate of inspection of lights and fog signals, see 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. cccclii. t (141) As to the inspection by Board of Trade officers of lights and fog signals gene r rally, see Board of Trade Instructions as to survey of passenger accommodation, lights, &c, 1884, pp. 41—53, pars. 70—90. (142) Outdoor officers of customs are au- thorized to report to surveyors any cases of infringements of the rules which may come under their notice, and surveyors are autho- rized to take every opportunity of inspecting the lights of vessels within their districts, especially where they have reason to believe the regulations are wholly or partially evaded. The surveyors always inspect lights and fog signals whenever called upon to inspect crew spaces or otherwise. Ibid. par. 71. (143) On surveying lights and fog signals, the surveyor requires from the master the last certificate of inspection, and compares the entries therein with the description and position of the lanthorns and screens on board, and, if^he finds any variation, is au- thorized and required to withdraw the cer- tificate ; but when the regulations have been complied with, he makes an indorsement to that effect on the certificate, and returns it to the master or owner. A new certificate is not to be issued in such a case. Ibid. (144) A surveyor, on surveying lanthorns for the first time, impresses part of the lant- horn with a mark fixed by the Board of Trade, and the description of the mark is inserted in the certificate. He takes care, however, not to impair the efficiency of the lanthorn in impressing the mark. Ibid. par. 72. OWNERS. Pt. II. General Responsibilitiesjrf Owners, &c. 1247 23. Signals of Distress. 607. The following are signals of dis- tress, whether used together or sepa- rately : — In the daytime — 1 . A gun fired at intervals of about a minute. 2. The international code signal of dis- tress indicated by N C. 3. The distant signal, consisting of a square flag having either above or below it a ball, or anything resem- bling a ball. At night — 1. A gun fired at intervals of about a minute. 2. Flames on the ship (as from a burning tar barrel, oil barrel, &c). 3. Eockets or shells, of any colour or description, fired one at a time, at short intervals. See M. S. Act, 1873 (c. 85), s. 18, and first sche- dule. 608. Any master who uses or causes or permits to be used any of these signals of distress, except in case of distress, is liable to pay compensation for any labour, risk or loss in consequence thereof, and such compensation may, without prejudice to any other remedy, be recovered like sal- vage. Ibid. (145) When the lights or fog signals are not fitted and provided in accordance with the regulations, the inspecting surveyor fills up a form specifying the additions or altera- tions required, and gives or sends it .by post to the owner, master or agent. A report on the proper form is then to De sent at once to the collector of oustoms, who will either refuse to grant the vessel a clearance, or to Eermit her to proceed to sea until he receives :om the surveyor a report on the proper form that the regulations have been complied with. Ibid. par. 73. (146) A surveyor exercises his discretion in cases involving the detention of a ship under such circumstances, and in some cases abstains from detaining her, as, for instance, when the ship is not about to leave the United Kingdom, and when she is Bupplied with lights, but there is a question as to their complying with the regulations with respect to fittings, power, condition, &c, and when there is no reason to apprehend delay or the good faith of the owner or master in carrying the regulations into effect; but he should forward a notice to the owner, master, or agent. Ibid. pars. 73, 74. (147) If a ship leaves one port for another port in the United Kingdom before the sur- veyor is satisfied that the requirements have been complied with, he communicates with the port or district to which the ship is pro- ceeding. Ibid. par. 74. (148) When the required alterations have been made and are satisfactory to the sur- veyor, he fills up and sends to the owner or master a notification thereof on the proper form, specifying his fees and expenses ; and when these have been paid the surveyor sends to the collector a certificate thereof on the proper form and a certificate of inspection to the owner, master, or agent, and a copy thereof to the Board of Trade. This certifi- cate is also entered in the office light book with the surveyor's rotation number for fight certificates. The rotation number is also entered on the original certificate and on the copy sent to the Board of Trade. Ibid. par. 75. (149) Surveyors are not required to grant the usual declaration unless the lights will, in all conditions of the ship and her sails, be clearly seen in the direction and for the dis- tance required. 1 bid. par. 83. (150) Surveyors are not to advise owners how to arrange or modify sails, &c, inter- fering with the fights, but are to decline giving declarations if the regulations are not complied with. The surveyor, if he thinks it necessary, sees the sails set, and always goes aloft to the masthead to inspect the lights from there, or gets a colleague to do so in his presence. Ibid. (151) If the master or owner neglects or refuses to alter the position of the lanthorns, or to cut away the required portions of the lower courses as the- surveyor directs, the surveyor reports the fact to the collector of customs, in order that he may stop the ship ; and the collector refuses a clearance until he receives a report from the surveyor to the effect that these requirements have been complied with. Ibid. par. 84. (152) If after a ship has been passed by the surveyor as carrying proper lights, pro- perly constructed, the master fixes them in such a position that they are or may be obscured by the square-sail, and are not visible, as required by the regulations, he is guilty of a misdemeanour under s. 27 of the M. S. Act, 1872. Ibid. par. 85. S53) Surveyors are entitled to inspect the ts, &c. of foreign ships within British jurisdiction; and when a surveyor has rea- son to believe that the lights of a foreign ship are imperfect or the screen is improperly placed, he inspects them, and points out to the master or agent, if on board the vessel, where they are not in accordance with the regulations, and reports to the Board of Trade to ihe same effect. Ibid. par. 90. See also par. 78 as to the construction and range of lights. 1248 OWNERS. Pt. II. General Responsibilities of Owners, &c 24. Signals for Pilots. 609. The following are the signals which may he used together or separately by ships wanting a pilot : — In the daytime — 1. To he hoisted at the fore, the jack or other national colour usually worn by merchant ships, having round it a white border, one-fifth of the breadth of the flag ; or 2. The international code pilotage signal indicated by PT. At night — 1. The pyrotechnic or blue light every fifteen minutes ; or 2. A bright white light, flashed or shown at short intervals just above the bulwarks, for about a minute at a time. See M. S. Act, 1873 (c. 85), s. 19, and second schedule. 610. Penalty against any master who uses, causes or permits to be used, any of these signals for any other purpose than that of summoning a pilot, or any other signal for a pilot, not exceeding £20. Ibid. s. 19. 25. Private Signals.* 611. Any shipowner desirous of using, for purposes of a private code, any rockets, lights, or other similar signals, may regis- ter them with the Board of Trade, which shall give public notice of the signals so registered ; but the Board may refuse to register any signals which in their opinion cannot easily be distinguished from signals of distress or signals for pilots. Ibid. s. 21. 26. Other Signals. 612. Her Majesty may, from time to time, by Order in Council, repeal or alter the rules as to signals in the schedules to this act, or make new rules. Ibid. s. 20. 27. Ship's Boats, Rafts and Buoys.f 613. (1) No decked ship (except ships used solely as steam tugs and ships en- gaged in the whale fishery) shall proceed to sea from any place in the United King- dom unless provided, according to her tonnage and class, with boats duly .sup- plied with all requisites for use, and not fewer in number nor less in their cubic contents than those specified in table S. in the schedule : (2) no ship carrying more than ten passengers shall proceed to sea from any place in the United. King- dom unless, in addition to the above, she is provided with a lifeboat furnished with all requisites for use, or unless one of her boats is - rendered buoyant after the man- ner of a lifeboat, and unless she is also provided with two life-buoys : such boats and life-buoys shall be kept so as to be at all times fit and ready for use. See M. S. Act, 1854 (c. 104), s. 292. 614. Penalty for breach or for loss or injury thereto through the wilful fault or negligence of the owner or master ; or, if the master wilfully neglects to replace or repair them on the first opportunity j against owner appearing to be in fault, not exceeding £100, and against the mas- ter appearing to be in fault, not ex- ceeding £50. Ibid. ss. 292, 293. 615. Officers of customs are not to grant a clearance or transire unless the ship is so provided ; and if the ship attempts to go to sea without, the officer may detain her until she is so provided. Ibid. s. 294. 616. Sections 292 to 294 apply to all British ships and to all foreign steam ships carrying passengers between places in the United Kingdom. Ibid. s. 291. 617. In the case of any ship surveyed under thefourthpart of theM. S. Act, 1854, the Board of Trade may, at the request of the owners, authorize a reduction in the number and dimensions of her boats, and the substitution for them of rafts or other appliances for saving life, so that they are sufficient for the number of persons on board. The provisions of sect. 293 of the principal act are extended to such rafts and appliances. See M. S. Act, 1 873 (c. 85), s. 15. 618. As to such appliances on board "passenger ships," see this tit. Pt. IY. cap. 26, p. 1295. 28. Steamers' Safety Valves. 619. If any person places an undue weight on the safety valve of any steam * (153a) See, for list of private signals, 2 Maude & Pollock (4th ed* by Pollock -& Bruce), p, cccclxi, Form No. 50. t (1536) As to the Eegulations of the Board of Trade with reference to boats and life- buoys, see Instructions as to the survey of the hulls, equipment and machinery of steamships carrying passengers, 1884, pars. OWNERS. Pt. II. General Responsibilities of Owners, &c. 1249 ship, penalty not exceeding £100, in ad- dition to any other liability. See M 8 Act, 1854 (c. 104), s. 302 * 29. Fire-hose to Steamers. 620. Every seagoing steam ship (un- less used solely as a steam tug) shall be provided with a hose for extinguishing fire, and capable of being connected with the engines. Penalty for default against the owner appearing in fault not exceed- ing £100, and against the master appear- ing in fault, not exceeding £50. Ibid. s. 301, sub-s. 3. 30. Official Logs. 621. See tit. Evidence, pp. 434 — 437; and for their form, see 2 Maude & Pol- lock (4th ed. by Pollock & Bruce), p. ccccxlii. 31. Duty to declare National Character of Ship. 622. No officer, of customs shall grant a clearance or transire for any ship until the master has declared to him the name of the nation to which she belongs, and such officer shall thereupon inscribe such name on the clearance or transire ; if the ship attempts to proceed to sea without such clearance or transire, the officer may detain her until such declaration is made. SeeM. S. Act, 1854 (c. 104), s. 102. 33. Duty to assist colliding Ship. 623. See tit. Collision, Pt. I. c. 5, p. 188. 33. Effect of Breach of Regula- tions for preventing Colli- sions. 623a. See tit. Collision, Pt. IV. c. 2, s. 5, p. 215. 34. Wrecks and Removal of Wrecks. 624. As to wrecks and removal of wrecks, see tit. Weeck. 35. Deposit of Documents on arrival at Foreign Port. 1 . Generally. 625. — (1.) Whenever any ship in what- ever part of her Majesty's dominions she is registered (except ships whose business for the time being is to carry passengers), arrives at any foreign port where there is a British consular officer, or at any port in any British possession abroad, and remains thereat for forty-eight hours the master shall, within forty-eight hours of the ship's arrival, deliver to such con- sular officer, or to the chief officer of customs (as the case may be), the agree- ment with the crew, and all indentures and assignments of apprenticeships ; or in the case of a ship belonging to a British possession, such of the documents as such -ship is provided with : (2.) Such officer shall keep such documents during the ship's stay in such port, and, in cases where any indorsements upon the agree- ment are hereby required, shall duly make the same, -and return the documents to the master a reasonable time before his departure, with a certificate indorsed on the agreement, stating when the same were delivered and returned : (3.) If it appears that the required forms have been neglected, or that the existing laws have been transgressed, such officer shall make an indorsement to that effect on the agreement, and forthwith transmit a copy of such indorsement, with the fullest information he can collect regarding such neglect or transgression, to the Eegistrar- general of Shipping and Seamen. Penalty against any master for default not exceed- ing £20 ; and in the prosecution it lies on the master to produce the certificate, or prove that he duly obtained it, or that it was impracticable for him so to do. See M. S. Act, 1854 (c. 104), s. 279. 2. Exemptions. 626. All registered seagoing ships ex- clusively employed in fishing on the coasts of the United Kingdom are exempted from the operation of the M. S. Act, 1854 (c. 104), s. 279, as to the deposit of agreements, indentures, and assignments on arrival at a foreign port with the consul * (153c) As to the Eegulations of the Board of Trade in reference to safety valves, see Board of Trade Instructions as to the survey of the hulls, equipment, and machi- nery of steamships carrying passengers, 1884, ss. 31, 58, 66, 67, 77—83, 92. 1250 OWNERS. Pt. II. General Responsibilities of Owners, &c or officer of customs there. See M. S. Act Amendment Act, 1862 (c. 63), s. 13. 627. Seagoing ships belonging to any of the three General Lighthouse Boards are similarly exempted. Ibid. 628. Seagoing ships being pleasure yachts are similarly exempted. Ibid. 36. Lists of Crew, Mar- riages, &c. 1. Foreign-going Ships. 629. Every master of every foreign- going ship of which the crew is discharged in the United Kingdom, in whatever part of her Majesty's dominions it is regis- tered, and of every home-trade ship, shall make out and sign a list in a form sanc- tioned by the Board of Trade, contain- ing:— (1.) The number and date of the ship's register and her registered ton- nage : (2.) The length and general nature of the voyage or employment : (3.) The christian names, surnames, ages, and places of birth of all the crew, including the master and apprentices ; their qualities on board, their last ships or other employments, and the dates and places of their joining the ship : .(4.) The names of any members of the •crew who have died or otherwise ceased to belong to the ship, with the times, places, causes, and cir- cumstances thereof : (5.) The names of any members of the crew who have been maimed or hurt, with the times, places, causes, and circumstances thereof : (6.) The wages due to any of the crew who have died, and the times of their respective deaths :■ (7.) The clothes and other effects be- longing to any of the crew who have died, with a statement of the manner in which they have been dealt with, and the money for which any of them have been sold : (8.) Every marriage which takes place on board, with the date thereof, and the names and ages of the parties. See M. S. Act, 1854 (c. 104), s. 273, as amended by the Births and Deaths Ee- gistration Act, 1874 (c. 88), s.' 37. 630. In the case of foreign-going ships, the master shall, within forty-eight hours after the ship's arrival at her port of destination in the United Kingdom, o: upon the discharge of the crew, which ever first happens, deliver to the super intendent of a mercantile marine offict before whom the crew is discharged sue! list : penalty for default not exceeding five pounds; such superintendent shall thereupon give to the master a certificate of such delivery; no officer of customs shall clear inwards any foreign-going ship without the production of such certificate, and any such officer may detain the ship until the same is produced. See M. S. Act, 1854 (c. 104), s. 274. 2. Home-trade- Ships. 631. The master or owner of every home- trade ship shall, within twenty-one days after the 30th of June and 31st of Decem- ber in every year, transmit or deliver to the superintendentofamercantilemarineoffice in the United Kingdom such list for the preceding half-year : penalty for default not exceeding £5 ; and such superin- tendent shall give to the master or owner a certificate of such transmission or de- livery; and no officer of customs shall grant a clearance or transire for any home- trade ship without the production of such certificate, and any such officer may detain any such ship until the same is produced. Ibid. s. 275. 632. So much of the third part of this act as relates to the delivery or transmis- sion of lists of crews to the Eegistrar- general of Seamen shall apply to all fishing vessels belonging to the United Kingdom, whether employed exclusively on the coasts of the United Kingdom or not ; to all ships belonging to the Trinity House, or the commissioners of northern light- houses constituted as hereinafter men- tioned, or the port of Dublin corporation; and to all pleasure yachts, and to the owners, masters, and crews of such ships. So much of the third part of this act as relates to the delivery and transmission of lists of crews, shall apply to all seagoing British ships, wherever registered, of which the crews are discharged, or whose final port of destination is in the United Kingdom, and to the owners, masters, and crews of such ships. Ibid. s. 109. 3. Ships ceasing to be Foreign-going or Home-trade Ships. 633. If any ship ceases by reason of transfer of ownership or change of employ- ment to fall within the definition of a foreign-going or of a home-trade ship, OWNERS. Pt. II. General Responsibilities of Owners, &c. 1251 the master or owner thereof shall, if such ship is then in the United Kingdom, -within one month, and if she is elsewhere within six months, deliver or transmit to the superintendent of a mercantile marine office at the port to which the ship has belonged, such list, duly made out to the time at which she ceased to be a foreign- going or home-trade ship, penalty for de- fault not exceeding £10 ; and if any ship is lost or abandoned, the master or owner thereof shall, if practicable, and, as soon as possible, deliver or transmit to the superintendent of the mercantile marine office at the port to which the ship be- longed such list, duly made out to the time of such loss or abandonment, penalty for default not exceeding £10. Ibid. s. 276. 37. Lists of Changes in Crew. 634. The master of every foreign-going ship of which the crew has been engaged before a superintendent of a mercantile marine office shall before leaving the United Kingdom sign and send to the nearest superintendent a statement on a Board of Trade form of every change in his crew before leaving the United King- dom, penalty for default not exceeding £5 ; such statement shall be admissible in evidence, subject to all just exceptions. See M. S. Act, 1854 (c. 104), s. 158, as amended by M. S. Act Amendment Act, 1862 (c. 63), s. 15. 38. Registration of Births and Deaths. 635. The general provisions of this act do not apply to the registration of births and deaths on board a vessel at sea. See the Births and Deaths Registration Act, 1874 (c. 88), s. 37. 636. The captain or master or other person in charge of a British ship shall as soon as may be after the birth of a child or death of a person on board, record in his log book, or otherwise, the fact of such birth or death, and the particulars required by this act, or such of them as may be known to him, and shall (unless a Queen's ship), upon her arrival at any port of the United Kingdon, or, as the Board of Trade may direct, deliver or send as that Board may direct, a return of such record to the Eegistrar-General of Ship^ ping and Seamen. Ibid, sub-s. 1 . 637. Where a ship which is not a British ship carries passengers to or from any port of the United Kingdom as her port of destination or departure, the pro- visions of this section apply to the master or other person in charge like a British ship. Ibid, sub-s. 2. 638. Where the return is directed by the Board of Trade (whether the ship is British or foreign) to be delivered upon the arrival of the ship or the discharge of the crew, or otherwise, at any place out of the United Kingdom, that Board may direct the return to be delivered, if within British dominions, to the superintendent of a mercantile marine office, or collector of customs there, and if in a foreign place to the principal British consular officer there, and such functionary shall promptly send the same to the Eegistrar- General of Shipping and Seamen. Ibid, sub-s. 3. 638a. For provisions when it appears from the return that the father of the child so born, or, if a bastard, the mother, or that the person dead was a Scotch or Irish British subject, for the Eegistrar- General of Shipping and Seamen to send a certified copy of so much of the return to the Eegistrar-General of Births and Deaths in Scotland or Ireland accord- ingly. Ibid, sub-s. 4. 639. For provisions for the Eegistrar- General of Shipping and Seamen sending to the Eegistrar-General of Births and Deaths in England a certified copy of every other such return, or that part of it which is not so sent to the Eegistrar- General of Births and Deaths in Scotland and Ireland. Ibid, sub-s. 5. 639a. The captain or other person in charge of a Queen's ship shall, upon her arrival in any port of the United King- dom, or at such times and in such manner as the Commissioners of the Admiralty may direct, send a return of the facts recorded in pursuance of this section to the Eegistrar-General of Births and Deaths, to whom, if a merchant ship, the copy re- turn would be sent by the Eegistrar-Gene- ral of Shipping and Seamen. Ibid, sub-s. 6. 640. For provisions as to every Eegis- trar-General of Births and Deaths re- ceiving any return or copy, recording the same in the Marine Eegister Book, and as to such book being deemed a cer- tified copy of a register book within the meaning of the Eegistration of Births and Deaths Acts. Ibid, sub-s. 7. 641. Penalty for breach against every captain, master, or person in charge not exceeding £5, recoverable like a penalty under the M. S. Act, 1854. Ibid, sub-s. 8. 1252 OWNERS. Pt. II. General Responsibilities of Owners, &c 642. This section extends to all places and persons in British, jurisdiction. See the Births and Deaths Registration Act, 1874 (c. 88), s. 37, suh-s. 8. 642a. Terms in this section have the same meaning as in the M. S. Act, 1854. Ibid. 643. The particulars to he registered by the captain of a ship concerning a "birth or death at sea, are, for a birth — Date of birth . Name and sex of child . Name, surname, and rank, profession, or occupation of father. Name, surname, and maiden surname of mother. Nationality and last place of ahode of father and mother. And for a death — ■ Date of death . Name and sur- name . Sex . Age . Rank, profession, or occupation . Nationa- lity, and last place of abode . Cause of death . See the Fourth Schedule to the Births and Deaths Registration Act, 1874. 39. Notice of Loss of Ship. 644. If any registered ship is actually or constructively lost, taken by the enemy, burnt or broken up, or by reason of a transfer to unqualified persons or other- wise, ceases to be a British ship, every person who at that time owns such ship or any share therein shall, immediately upon knowledge of any such occurrence, if no notice thereof has already been given to the registrar at her port of registry, give such notice to him, and he shall make an entry thereof in his register book ; and, except in cases where the cer- tificate of registry is lost or destroyed, the master of every such ship shall imme- diately, if such event occurs in port, but if elsewhere, then within ten days after his arrival in port, deliver the certificate of registry to the registrar, or, if there be no registrar, to the British consular officer at such port, and such registrar if he is not himself the registrar of her port of registry, or such British consular offi- cer, shall forthwith forward the certificate so delivered to him to the registrar of the port of registry of the ship. Penalty for breach against owner and master, not ex- ceeding £100. See the M. S. Act, 1854 (c. 104), s. 53. 40. Notice of Ship having ceased to be British. 645. In case of a ship, by reason of her transfer to an unqualified person or otherwise, ceasing to be British, the lik notifications of the fact and delivery up o the certificate of registry are to be mad under the like penalty to the same au thority by every person who at that tim< owned the ship or any share therein im- mediately on his obtaining knowledge oJ the occurrence. Ibid. 41. Notice of apprehended Loss of Ship. 646. If the managing owner, or, if none such, the ship's husband of any British ship has reason to apprehend it has been lost, he shall, as soon as conve- niently may be, send to the Board of Trade notice in writing of such loss and of the probable occasion thereof, stating the name of the ship, her official number (if any), and the port to which she be- longs. Penalty for breach, not exceeding £50. Ibid. 1873 (c. 85), s. 22. 42. Notice of Ship having caused or sustained Injury or Loss of Life. 647. Whenever any steamship has sus- tained or caused any loss of life or serious injury to any person, or has received any material damage affecting her seaworthi- ness or her efficiency in hull or machi- nery, the owner or master shall, within twenty-four hours afterwards, or as soon thereafter as possible, send to the Board of Trade, by letter signed by such owner or master, a report of such accident or damage, and of the probable occasion thereof, stating the name of the ship, the port to which she belongs, and the place where she is. Penalty against the owner or master neglecting so to do, not exceed- ing £50. Ibid. 1854 (c. 104), s. 326. 43. Notice of Explosives having caused Loss of Life or Per- sonal Injury. 648. When there occurs any accident, causing loss of life or personal injury in the carriage by any ship or boat of any explosive, the owner or master thereof, and the owner of the explosive, must forthwith cause notice of such accident, and of loss of life or personal injury to be sent to the Secretary of State. See the Explosives Act, 1875 (c. 17), s. 63. OWNERS. Ft. II. General Responsibilities of Owners, &c. 1253 44. Proof of Execution of Documents. 649. Any document required by this act to be executed in the presence of or to be attested by any witness or witnesses, may be proved by the evidence of any person who is able to bear witness to the requisite facts, without calling the attest- ing witness or witnesses or any of them. See the M. S. Act, 1854 (c. 104), s. 526. 45. Service of Documents. 650. Service of any summons or other matter in any legal proceeding under this act shall be good service, if made per- sonally on the person to be served, or at his last place of abode, or if made by leaving such summons for him on board any ship to which he may belong, with the person being or appearing to be in command or charge of such ship. Ibid. s. 522. 651. Any document required, for the purpose of this act, to be served on the master, shall be served, where there is no master, and the ship is in the United Kingdom, on the managing owner, or if none, on some agent of the owner re- siding in the United Kingdom, or where he is not known or cannot be found, by affixing a copy to the ship's mast. See the M. S. Act, 1876 (c. 80), s. 35. 652. Any such document may be served by delivering a copy personally to the per- son to be served, or leaving the same at his last place of abode, or in the case of a master by leaving it for him on board the ship with the person appearing to be in charge. Ibid. 652a. Penalty for obstructing service on the master not exceeding ten pounds, and if the owner or master is privy to it he is guilty of a misdemeanor. Ibid. 653. This act is to be construed as one with the M. S. Act, 1854, and the acts amending the same. Ibid. s. 2. 46. Sea Apprentices. 654. As to the execution of indentures of sea apprentices generally and in dupli- cate ; as to the duty, in the United King- dom, of the master of the apprentice, within seven days after execution of the indentures, to transmit them to the Eegis- trar-general of Shipping and Seamen, or some superintendent, who is to record one part and endorse on the other that it has been recorded, and re-deliver it to the master ; as to the duty of the master of every foreign-going ship, before carry- ing any apprentice to sea from any place in the United Kingdom, to produce the apprentice, his indenture, and the assign- ments thereof, if any, to the superin- tendent before whom the crew is engaged; and the dates of the indenture and as- signments, and where registered, and the name of the apprentice are to be en- tered on the shipping agreement, penalty for breach not exceeding £5 ; as to the duty of the master of the apprentice whenever the indenture is assigned or cancelled, or the apprentice deserts or dies, to give notice thereof within seven days afterwards if it happens in the United Kingdom, or, if elsewhere, so soon afterwards as circumstances permit, to the registrar or some superintendent, to be recorded; and as to the penalty for breach not exceeding £10; and, gene- rally, as to sea apprentices, see tit. Sea- men, Pt. I. 47. Anchors. See Pt. IV. c. 22. 48. Dealers in Marine Stores.* 655. Por the regulations to be observed under penalties by persons dealing in anchors, cables, sails, old iron or other marine stores, and providing that they shall keep books, and enter therein an ac- count of all such marine stores, and when, where and from whom purchased or re- ceived ; a description of the vendor and his business ana place of abode; that they shall not purchase marine stores from any person under the age of six^ teen ; and that they shall not cut up any cable or similar article, exceeding five fathoms in length, or unlay it into twine or paper stuff, without obtaining a per- mit and publishing notice thereof, and providing the mode of proceeding for obtaining such a permit from a justice of the peace having jurisdiction where the dealer resides, and the publication thereof in the newspapers, see M. S. Act, 1854 (c. 104), 88. 480—482. * (154) As to prosecutions of marine store dealers, see Stone's Justices Manual, 21st ed. by Kennett, 1882, p. 520. 1254 OWNERS. Pt. II. General Responsibilities of Owners, &c. 49. Powers of enforcing Pay- ment of Orders. 656. When any court, justice or magis- trate lias power to order payment of any seamen's wages, penalties, or other sums of money, if the party directed to pay is the master or owner, and it is not paid as prescribed in the order, the functionary making the order may, in addition to any other powers of compelling payment, di- rect the amount unpaid to be levied, by distress or poinding and sale of the ship, her tackle, furniture and apparel. M. S. Act, 1854 (c. 104), s. 523. 50. Detention of Ship. 1. Generally. 657. As to the detention of foreign- going ships proceeding to sea without producing agreements and certificates of masters, mates and engineers, see tit. Trade, Board of — . 658. As to the detention of home- trade ships under similar circumstances, ibid. 659. As to the detention, of British ships when medical inspector certifies provisions deficient, and the ship pro- ceeds to sea without the deficiency being made good, see tit. Seamen. 660. As to the detention of ship on master's refusal to declare her national character, see this Part, c. 31, p. 1249. 661. As to the detention of ship not proceeding with proper boats, rafts and life-buoys, see this Part, c. 27, p. 1248. 662. As to the detention of home-trade ■ and foreign-going ships proceeding to sea without delivering lists of crew, with marriages, deaths, &c. on board, see c. 36, ss. 1 and 2, p. 1250. 663. As to the detention by the Board of Trade of unsafe or unseaworthy ships, see Pfc. III. c. 1, p. 1258. 2. Who may detain. 664. When under the M. S. Acts, 1854 to 1876, or any of them, a ship is au- thorized or ordered, to be detained, any commissioned officer on full pay in the naval or military service of her Majesty, or any officer of the Board of Trade or Customs, or any British consular officer may detain the ship. SeeM. S. Act,1876 (c. 80), s. 34. 3. Escape. 665. If the ship after such detention, or after service on the master of any no- tice of or order for such detention, pro- ceeds to sea before it is released by com- petent authority : penalty against the master, the owner, and any person send- ing the ship to sea, if privy to the offence, not exceeding £100. Ibid. 4. Carrying off of Officers. 666. Penalty when a ship takes to sea on board thereof and in the execution of his duty any officer authorized to detain her, or any surveyor or officer of the Board of Trade or Customs, against the owner and master, besides all expenses of and inci- dental to the officer being so taken to sea, not exceeding £100, or ten pounds a day until the officer returns, or until such time as would enable him to return. Ibid. 51. Persons improperly board- ing Ship. 667. Penalty against every person who, not being in her Majesty's service, and duly authorized by law, goes on board any ship before her actual arrival in dock or at the place of her discharge, without the permission of the master, not exceed- ing £20 ; and the master or person in charge may take any such person into custody, and deliver him up forthwith to any peace officer, to be taken before a justice, or, in Scotland, the sheriff of the county. See M. S. Act, 1854 (c. 104), s. 237. 53. Persons injuring Steamer or molesting Crew. 668. Penalty for injuring steamer or molesting crew not exceeding £20. Ibid. 1862 (c. 63), s. 36. 53. Prosecution of Offenders under M. S. Acts, 1854 and 1876. 1. Generally.* 669. As to the punishment of offences and recovery of penalties before justices * (155) Although justices of the peace ex- . ercising summary jurisdiction are the sole judges of the weight of- the evidence given - before them, and no other Queen's court will examine whether or not they have formed the right conclusion from it, yet other courts OWNERS. Pt. II. General Responsibilities of Owners, &e. 1255 under this act, seeM. S.Act. 1854 (c. 104), b. 518 ; and notes in 2 Maude & Pollock (4th. ed. by Poll. & Bruce), p. cliii. 669a. A stipendiary magistrate has the same power as two justices of the peace under this act. See M. S. Act, 1854 (c. 104), s. 519. 670. The tenth part of this act (ss. 517 — 543), relating to legal procedure under the act, where no particular country is mentioned, applies to the whole British dominions. Ibid. s. 517. 671. All criminal proceedings under the Seamen's Fund "Winding-up Act, 1851, the Pilotage Law Amendment Act, 1853, the Merchant Shipping Law Amend- ment Act, 1853, or this act, are to be car- ried on like similar proceedings under the M. S.Act, 1854; and all rules of law, prac- tice, and evidence applicable to such pro- ceedings apply to criminal proceedings under this act. See the M. S. Repeal Act, 1854 (c. 120), s. 15. 672. For the purpose of punishment, jurisdiction, and legal proceedings, an offence under this act is an offence under the M. S. Act, 1854. See M. S. Act, 1 876 (c. 80), s. 40. 673. See further as to jurisdiction over offences, tit. Seamen, Pt. V. 674. For provisions as to the trial of offences committed on the sea within a certain distance of the coasts of her Ma- jesty's dominions, defining the jurisdic- tion of the Admiralty of England and Ireland for that purpose, and directing modes of, and restrictions, on, procedure, see The Territorial "Waters Jurisdiction Act, 1878 (c. 73). 2. In Scotland. 675. As to the prosecution in Scotland by indictment, criminal letters or criminal libel, for every offence described in this act as a felony or misdemeanour and the punishment thereof ; and as to the .pro- cedure there on all other prosecutions, complaints, actions, or proceedings in a summary way before the sheriff or two justices, with powers of making arrest- ments, compelling the attendance of wit- nesses, and of adjournment; as to the requirements that the proceedings shall be vivd voce and the sentence in writing ; as to the powers of imprisonment in de- fault of payment, of proceeding by default and giving sentence after citation served, of warrant to apprehend in default of ap- pearance, and of backing sentences or decrees ; and as to provisions that orders shall be final and not quashed for want of form, and that the general rules in sec- tions 518 to 529 shall as far as applicable extend to Scotland, see M. S. Act, 1854 (c. 104), ss. 530—543. 676. In the application of this act to Scotland, the provisions as to a prosecution not being instituted except by or with the consent of the Board of Trade do not apply; and as to the analogous legal func- tionaries there, Ibid. 1876 (c. 80), s. 41. 3. In Ireland. 677. As to the application of this act to Ireland, and the analogous legal func- tionaries there, Ibid. s. 42. 4. In the Isle of Man. 678. As to the application of this act to the Isle of Man, and the analogous legal functionaries there, Ibid. 5. In British Possessions. 679. All offences under this act shall in any British possession be punishable in any court or by any justice or magistrate in which, or by whom, offences of a like character are at the time ordinarily punish- able. Ibid. 1854 (c. 104), s. 518, sub-s. 5. 6. As dependent on Locality. (a) Generally. 680. For the purpose of jurisdiction under this act, every offence shall be deemed to have been committed, and every cause of complaint to have arisen, in the place where it was committed or arose, or where the offender or person complained against may be. Ibid. s. 520. (b) Ships off the Coasts. 681. In all cases where any district within which any court, justice, or magis- trate has jurisdiction under this or any other act, or at common law, is situate on the coast of any sea, or abutting on or may and ought to examine whether the pre- mises stated by the justices are such as will, in point of law, warrant the conclusion. The Scotia, Stuart's Vice-Adm. Rep. 160. [Lower Canada.] (155a) As to criminal proceedings gene- rally, in reference to merchant shipping, see Stone's Justices Manual, 21st ed. by Ken- nett, 1882, p. 521. 1256 OWNERS. Pt. II. General Responsibilities of Owners, &c. projecting Into any bay, channel, lake, river, or other navigable water, every such functionary shall have jurisdiction over any ship or boat being on or lying or passing off such coast, or in or near such bay, channel, lake, river, or navigable water, and over all persons on board such ship or boat, or belonging thereto, as if such ship, boat, or persons were within the limits of his original jurisdiction. See M. S. Act, 1854 (c. 104), "s. 521. 7. Forgery of Documents. 682. Any person forging, or procuring, or assisting, to forge, or fraudulently alter documents required by the second part of this act, is guilty of felony. Ibid. s. 101. 8. Misdemeanours. 683. As to the punishment of misde- meanours under this act in all places in her Majesty's dominions, except Scotland, Ibid. s. 518, and 7 Geo. 4, c. 64. 9. Offences punishable by Imprisonment under Six Months, or Penalty under £100. 684. In all places in, her Majesty's dominions, except Scotland, every offence by this act made punishable by imprison- ment for any period not exceeding six months, with or without hard labour, or by any penalty not exceeding £100, shall in England and Ireland be prosecuted summarily before any two or more jus- tices, as to England in the manner di- rected by 11 & 12 Vict. c. 43, and as to Ireland as directed by 14 & 15 Vict. c. 93, or by any act or acts passed for like pur- poses. SeeM. S. Act, 1854 (c. 104), s. 518, sub-s. 3, except proceedings under the direction of the Board of Trade. See M. S. Act Amendment Act, 1862 (c. 63), s. 65. 685. Eor provisions that any offence declared by this act to be a misdemeanour may in all places in her Majesty's do- minions, except Scotland, be punished by imprisonment not exceeding six months, or penalty not exceeding £100. See M. S. Act, 1854 (c. 104), s. 518, sub-s. 2. 10. Appeal from Summary Convictions in Sums above £5, or Imprisonment above One Month. 686. In all cases of summary convic- tions in England, where the sum adjudged to be paid exceeds £5, or the period of imprisonment one month, any person aggrieved may appeal to the next court of general or quarter sessions holden not less than twelve days after such convic- tion; but such person must give to the complainant notice in writing of such ap- peal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at least before such sessions, and either remain in custody until the sessions, or enter into a recogni- zance, with two sufficient sureties, to ap- pear at the sessions, try such appeal, abide judgment, and pay costs ; and after such notice and recognizance he shall be libe- rated, if in custody ; and the court shall hear and determine the appeal, and make such order therein and as to costs as to it shall seem meet. Ibid. s. 518. 11. Stipendiary Magistrates. 687. Any stipendiary magistrate shall have full power to do alone whatever two justices of the peace are by this act au- thorized to do. Ibid. s. 519. 688. The harbour master for the time being of Holyhead may be granted H.M.'s commission, and in that case shall have, within the limits of his jurisdiction as harbour master, all the powers of a sti- pendiary magistrate. See the M. S. Act, 1867 (c. 124), s. 12. 12. Application of Penalties. 689. Any court, justice, or magistrate imposing any penalty under this act, for which no specific application is herein provided, may, if he thinks fit, direct the whole or part thereof to be applied in compensating any person for any wrong or damage he may have sustained by the act or default for which the penalty is imposed, or to be applied in or towards payment of the expenses of the proceed* ings; and, subject thereto, all penalties recovered in the United Kingdom shall be paid into her Majesty's exchequer as the Treasury may direct, and form part of the consolidated fund, and all penalties recovered in any British possession shall be paid over into the public treasury. See the M. S. Act, 1854 (c. 104), s. 524. 13. Limitation of Time for Proceedings. 690. No conviction for any offence shall' be made under this act in any summary proceeding instituted in the United King- dom, unless such proceeding is commenced within six months after the offence ; or if both or either of the parties are during OWNERS. Pt. II. General Responsibilities of Owners, &c. 1257 stlch time out of the United Kingdom, unless the same is commenced within two months after they both first arrive or are at one time within the same. No convic- tion for any offence shall he made under this act in any proceeding instituted in any British possession, unless such pro- ceeding is commenced within a similar time. No order for the payment of money shall be made under this act in any sum- mary proceeding instituted in the United Kingdom, unless such proceeding is com- menced within six months after the cause of complaint arises ; or, if both or either of the parties are during such time out of the United Kingdom, unless the same is commenced within six months after they both first arrive or are at one time within the same. No order for the payment of money shall be made under this act in any summary proceeding instituted in any British possession, unless such proceeding is commenced within a similar time. And no other provision for limiting the time within which summary proceedings may be instituted shall affect any summary proceeding under this act. Ibid. s. 525. 54. Mode of apprehending Offen- ders on Passenger Ships. 691. It shall be lawful for the master or other officer of any duly-surveyed pas- senger ship, and for all persons called by him to his assistance, to detain any per- son who has committed an offence against any one of the provisions of the two last preceding sections of this act (imposing penalties on drunken or disorderly pas- sengers, on persons molesting passengers or crew, forcing their way into the ship and refusing to quit on being ordered, inflicting injury on the ship, and for avoiding payment of fares) whose name and address are unknown to such officer, and to convey such offender before some justice without any warrant or other au- thority. See M. S. Act Amendment Act, 1862 (c. 63), s. 37. 66. As to Surveyors, their Sala- ries, Expenses and Fees. See Pt. I. c. 6, p. 1208. 66. For Costs and Damages. See tit. Costs, c. 20, p. 369. p. 67. As to Investigations into Shipping Casualties. See tit. Shipping Casualties Investi- gations. 58. As to Lighthouses. See tit. Trade, Board op — . 69. As to Registrar -General of Shipping and Seamen. tit. Trade, Board of — . 60. As to the Employment of Certificated Masters, Mates and Engineers. See tit. Seamen. 61. As to Seamen generally. As to seamen generally, their engage- ment, protection and discharge, see tit. Seamen. 62. As to Wages of Seamen. See tit. "Wages. 63. For Bottomry. See tit. Bottomry, p. 100. 64. For Damage to Cargo. See tit. Goods, Carriage op — , Pt. VI. p. 467. 65. For Damage by Collision. See tit. Collision, p. 176. 66. For Laches, See tit. Laches, p. 800. 67. As to Mortgages. See tit. Mortgage, p. 1129. 68. For Necessaries, Repairs and Supplies. See tit. Necessaries, Eepairs and Supplies, p. 1148. 4 M 1258 OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 69. For Salvage. See tit. Saxyage. 70. As to the Measure of Damages. See tit. Kegistbar and Merchants. 71. As to Barratry. See tit. Marine Insurance, p. 1038. Part III. UNSAFE AND UNSEAWORTHY SHIPS. 1. Unsafe Ships (British). 1. Detention for Survey. (a) Generally.* 692. When a British ship, in any port of the United Kingdom, is, by reason of the defective condition of her hull, equip- ments, or machinery, or hy reason of overloading or improper loading, unfit to proceed to sea without serious danger to human life, having regard to the nature of the service for which she is intended, such ship (hereinafter referred to as "un- safe "), may be detained for survey. See M. S. Act, 1876 (c. 80), s. 6. 693. As to who may detain, see Pt. II. c. 50, p. 1254 ; and as to the overloading or improper loading of deck and grain cargoes, see Pt. V. (b) On Complaint of Seamen. 694. The Board of Trade, or its de- taining officer, on the complaint of one- fourth (being not less than three seamen) of any British ship, that the ship is un- safe, if the complaint is made in suffi- cient time before sailing, and provided that the Board is satisfied that the com- plaint is not frivolous or vexatious, shall take proper steps for ascertaining whe- ther the ship ought to be detained under this act, and shall not require security for costs from such seamen complaining. See M. S. Act, 1876 (c. 80), s. 11. See also c. 6, p. 1272. (c) Exemptions. 695. These provisions do not apply to any vessel employed exclusively ingoing from place to place in any river or inland water of which the whole or part is in any British possession. Ibid. s. 44. (d) By Board of Trade.\ 696. The Board of Trade, if they have reason to believe on complaint, or other- wise, that a British ship is unsafe, may order her detention for survey. Ibid. s. 6, sub-s. 1. (e) By Detaining Officer of Board of Trade.% 697. Any detaining officer appointed * (156) The powers given to the Board of Trade and their detaining officers under the M. S. Act, 1876, in regard to detaining un- safe ships, do not extend to ships which are not about to proceed to sea, so that any in- terference with such ships is not justified hy the act. See Board of Trade Circular, Sept. 1879, Consecutive Off. No. 153, p. 2. t (157) When the application is made by one of the public, and direct to the Board of Trade, the mode of procedure is as follows : — An "information" or complaint on a Board of Trade form, headed Surveys 82, which can be obtained free of charge at any Mercantile Marine Office, and at the office of any of the Board's surveyors, is to be sent by the complainant to an assistant-secretary of the Marine Department of the Board of Trade, S.W., containing particulars under five heads, viz. : A., as to the ship ; B., as to her usual employment; O, as to the cargo ; D., as to the grounds on which the ship is deemed to be unsafe, i. e. of overloading, improper loading, bad stowage, deck cargo, defects in hull, insufficiency of or defects in equipment, or defects in machinery or boilers ; and E., as to her equipments ; concluding with a general outline of defects, &c, ren- dering the ship unsafe. It is not necessary that all these particulars should be filled up ; but it is better to give as much of the infor- mation required as is practicable, and suffi- cient information should always be given to enable the Board of Trade to identify and findtheship. Ibid. p. 2, and Form Surveys82. (158) The information should conclude with a statement of the opinion of the complainant that the ship "is unfit to proceed to sea without serious danger to human life, having regard to the service for which she is in- tended," and that the facts are reported in order that she may be provisionally detained for survey. The information must be dated, and signed by the complainant, whose signa- ture must be attested by a witness, whose signature is to be appended. Ibid. (158a) The full name and address by post of the complainant and witness must be added. Ibid. ; and Form Surveys 82. J (159) The application for detention of a OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 1259 by the Board of Trade has the same power as the Board of Trade of provision- ally ordering the detention of a ship for survey. Ibid, sub-s. 9. 2. Detaining Officers. 698. The Board of Trade, with the consent of the Treasury, may from time to time appoint detaining officers. Ibid. sub-s. 8. 699. Any detaining officer so appointed has the same power as the Board of Trade under this section of provisionally ordering the detention of a ship for sur- vey, and of appointing a person or per- sons to survey her ; and if he thinks that a ship so detained by him is not unsafe he may order her to be released. Ibid. sub-s. 9. 700. A detaining officer shall forthwith report to the Board of Trade any order made by him for the detention or release of a ship. Ibid, sub-s. 10. 701. A detaining officer shall have for the purpose of his duties under this act the same powers as an inspector ap- pointed by the Board of Trade under the M. S. Act, 1854. Ibid. s. 12, sub-s. 1. 702. The provisions of the M. S. Act, 1854, with respect to persons wilfully impeding an inspector, or disobeying his orders, apply to persons so impeding any officer having, under this act, the powers of an inspector or surveyor. Ibid, sub- s.5. 703. As to the powers of such in- spectors, see tit. Seamen, Pt. IV. 3. Provisional Order of Detention.* 704. An order for the provisional de- tention of the ship, and any order vary- ship as unsafe under this act may be made to the Board of Trade direct, or to one of the Board's detaining officers, and by a Board of Trade officer, or one of the public. A Board of Trade detaining officer may also make the order of his own accord. See Board of Trade Instructions to Detaining Officers, Sept. 1876, Cons. Off. No. 78, p. 2. (160] When the "information" or com- jilaint is made by ono of the public to a de- taining officer of the Board of Trade, it must bo on form headed Surveys 82a, which may also be obtained free of charge at any Mer- cantile Marine Office, and at the offices of any of the Board's surveyors. The contents of this form are similar to those in Form Surveys 82, except that it is to be addressed to the detaining officer of the district. Ibid. (161) Forms 82 and 82A should always bo used as required when practicable ; but the Board of Trade and a detaining officer will not ignore complaints made by letter, and containing the name and address of the writer. Ibid. p. 3. (162) When the information or complaint is made by a Board of Trade officer, or an officer of the customs, or coastguard, or a receiver of wreck, to the detaining officer, the application is on form Surveys 82a; but the signature of the complainant need not bo witnessed. Ibid. p. 2. (162a) In case information is sent straight to the Board of Trade, without going through the officer, the Form 82 is used instead of the Form 82a. (163) When, from circumstances coming under the observation of the detaining officer himself, he orders the provisional detention of a ship, he also fills up form headed Sur- veys 82a as far as practicable, and sends it to the Board of Trade with the report herein- after referred to. Ibid. p. 2, par. 5. * (164) When the " information " is trans- mitted by the complainant direct to the assistant-secretary of the Board of Trade under form Surveys 82, and the Board of Trade orders provisionaljdetention for survey under sect. 6 of M. S. Act, 1876, of a ship in the United Kingdom, it does so according to a form headed Surveys 83. This document states wliere the ship is lying, and where she is to be surveyed. It also contains a form of telegram which it directs to be sent to the collector of customs at the port, in- forming him that the order has been made, and instructing him to detain the ship ac- cordingly, and to cause the telegram to be produced on board as his authority for doing so. This form is dated and signed by order of the Board by one of the assistant secre- taries. Ibid. (165) ne °f the assistant-secretaries of the Board then despatches to an officer of customs, or of the Board of Trade in that locality, a document headed Surveys 84, notifying to the officer that an order for pro- visional detention has been made, instruct- ing him to detain the ship accordingly ; to serve at once the notification or statement accompanying it, and which is in the form headed Surveys 85, of the grounds of the detention ; to forward to the principal officer of the Board of Trade for that district the instructions also accompanying it, and which are in the form headed Surveys 86 ; and to report to the Board at once. Ibid. (166) The notification or statement headed Surveys 85 above referred to is a notice from one of the assistant-secretaries of the Board directed to the master of the ship, informing him that an order for the provisional deten- tion of the ship has been made, and of the grounds of her detention, and that a surveyor of the Board has been instructed to survey 4m2 1260 OWNERS. Pt. III. Unsafe and Unseaworthy Ships* ing same, shall be served as soon as may be on the master. See M. 8. Act, 1876 (c. 80), s. 12, sub-s. 2. 705. The plaintiff was the owner of a British ship named the L., which was at the British port of 8., and was intended to be employed in the foreign cattle trade. Certain surveyors of the Board of Trade reported, in doubtful terms, that owing to her unusual proportions the L. was an unsafe ship. The Board of Trade there- upon ordered the L. to be provisionally detained. A court of survey was held as to the condition of the TJ., and the mem- bers thereof reported that the L. was not unsafe, and that she ought not to have been detained. The L. was accordingly released. The plaintiff then brought an action against the secretary of the Board of Trade, to recover compensation for the loss to him by reason of the provisional detention. At the trial it was admitted that the L. was a safe ship. The judge, in substance, directed the jury to con- sider whether it was reasonable in the Board of Trade to detain the L. for sur- her ; that the survey will commence within forty-eight hours, unless the principal officer of the Board therein named hears from him (the master of the ship) within that time ; that if he, the master, wishes to avail him- self of the provisions of sect. 6, sub-sect. 5, of the M. S. Act, 1876, as to selecting an asses- sor to assist in the survey, he, the master, should inform the principal officer therein named of the Board of Trade of the name of the assessor selected, and that a copy of the surveyor's report and of the further order of the Board will be sent to him, the master, on the completion of the survey, and warning him, the master, against coating the ship with tar or any substance until the survey has been completed. See Board of, Trade Instructions to Detaining Officers, Sept. 1876, Cons. Off. No. 78, p. 2, par. 5. (167) If the detaining officer orders the ship to be provisionally detained, he makes, signs, and dates the report at the foot of the "information" to the effect that he has issued an order accordingly and sent it to the collector of customs in the locality to be served on the parties, and forwards the "in- formation" and report to an assistant-secre- tary of the Marine Department of the Board of Trade. Ibid. ; and see Form 82a. (168) If the officer does not order provi- sional detention he forwards the information to the assistant-secretary with a separate letter giving his reasons for not interfering. Ibid. (169) Every order by a detaining officer for provisional detention of a ship is made on form headed Surveys 84a, and the officer keeps a correct duplicate of it. Ibid. p. 3, and see Form 84a, Cons. Off. No. 78, September, 1876. (170) This order he sends to the principal officer of customs of the port. It notifies that the detaining officer, having reason to believe the ship to be unsafe, thereby orders her to be provisionally detained for the pur- pose of survey, and requests the officer to take the necessary steps for detaining her forthwith, taking care that the accompany- ing notice, headed Surveys 85a, and con- taining a written statement of the grounds for the ship's detention, is served at once ; • and it further requires him to return this form 84a, after filling in at the back of it a notification that the form Surveys 85a has been duly served according to the re- quirements of sect. 35 of M. S. Act, 1876, and stating therein how and on whom it was so served. Ibid. See Forms 84a and 85a. (170a) If in any case with a view to save time the officer thinks it advisable to depart from this rule, and does not send the order for detention to the customs officer to be served, he may send forms 84a and 85a to one of his own staff, or to any officer of coast guard for the purpose. But he should in- form the collector of customs in due course. He should then, immediately on completing form 85a, fill up the report on form 84b, and send it to the Board of Trade. Ibid. p. 3. (1706) The form Surveys 85a, above re- ferred to, is the notice referred to in form 84a from the officer having authority to de- tain the ship, to the master of the ship, inti- mating that he (the officer) has ordered the ship named, and lying as therein mentioned, to be provisionally detained on the grounds therein mentioned, and has given instruc- tions for her survey, that the survey will commence within forty-eight hours, unless he (the officer) hears from him (the master^ within that time, and that if he (the master) wishes to avail himself of the provisions of s. 6, sub-s. 5 of M. S. Act, 1876, he (the master) should communicate with him (the officer), and inform him (the officer) of the name of the assessor selected to accompany the appointed surveyor, and that a copy of the surveyor's report and of the further order to be made thereon by the Board of Trade will be sent to him (the master) on the com- pletion of the survey, and warning the master against coating the ship with tar or any sub- stance until the survey is completed. This notice is served by the collector of customs, or his officer, in accordance with s. 35 of M. S. Act, 1876. Ibid. p. 3. (170c) The Board of Trade have also powers of provisional detention ; and where they exer- cise those powers they instruct the officer as to the steps they require to be taken in each case. Where the Board of Trade order pro- visional detention they use forms very similar to those above mentioned. Ibid. OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 1261 vey without a direct affirmation by their surveyors that in their opinion she was unsafe. Held a misdirection : for the proper question to he left to the jury was whether the facts with regard to the L., as she lay at S., which would have been apparent to a person of ordinary skill in examining her and inquiring about her, would have given him reasonable and . probable cause to suspect her safety, and to detain her for survey and inquiry. Thompson v. Farrer, 8 Q. B. D. 372 ; 51 L. J. Q. B. 534; 47 L. T. 117; 4 Asp. 562—0. A. 706. A man was tried and convicted under the M. 8. Act, 1871 (o. 110), s.ll, for sending a ship to sea in an unseaworthy state, upon an indictment which did not aver either that he knew of her being unseaworthy, or that he had not used reasonable means to make her seaworthy. Held, first, that the indictment need not aver that the accused knew the ship to be in an unseaworthy state. Held, secondly, that the indictment need not contain averments negativing the use of reasonable means to make and keep the ship seaworthy. Reg. v. Freeman, 9 W. E. 0. L. 527—0. 0. E. 707. As to service of order, see Pt. II. c. 45, p. 1253. 4. Notice of Grounds of Detention. 708. When a ship has been so provi- sionally detained there shall be forthwith served on the master a written statement of the grounds of her detention. See M. S. Act, 1876 (c. 80), s. 6, sub-s. 2. 709. As to the service of such notice, see this tit. Pt. II. c. 45, p. 1253. 5. Security for Costs. 710. See tit. Costs, c. 19, p. 366. 6. Surveyors. 711. The Board of Trade may appoint competent persons to survey unsafe ships, and report thereon to the Board. See M. S. Act, 1876 (c. 80), s. 6, sub-s. 2. 712. Any detaining officer appointed by the Board of Trade may appoint a person or persons to survey any unsafe ship. Ibid, sub-s. 9. 713. The provisions of the M. S. Act, 1854, with respect to persons wilfully impeding an inspector, or disobeying his orders, apply to persons so impeding any officer having under this act the powers of a surveyor. Ibid. s. 12, sub-s. 5. 714. As to the powers of such inspec- tors, see tit. Seamen, Pt. IV. 7. Survey. (a) Generally* 715. Any person authorized to make the survey may go on board and inspect * (171) The instructions headed Surveys 86, above referred to, as accompanying the noti- fication headed Surveys 85, are instructions directed to the principal officer of the Board of Trade for the district in which the ship is lying, informing him that the Board of Trade has ordered the ship to be provisionally de- tained for survey, and directing him, unless he heai-s from the owner, agent or master within forty T eight hours after the receipt of these instructions, to the effect that he (the master) wishes to avail himself of the provi- sions of s. 6, sub-s. 5 of the M. S. Act, 1876, to proceed with the survey ; and if there is any delay or difficulty in doing so to report to the Board from day to day, so long as the delay is caused or the difficulty exists, and further directing him, when the survey has been made, to forward a report of the result to the Board on the form headed Surveys 87, and also to forward at the same time a state- ment containing the particulars and the amount of expenses incurred by him, and further directing him or the surveyor or surveyors appointed to make the survey to communicate, before acting, with the collector of customs at the port therein named, to whom the instructions have been sent. The principal officer, on the receipt of this docu- ment, reports to the assistant-secretary of the Board that he has duly noted and will act upon such instructions. The form of this report to the Board is on the back of these instructions. Ibid. (172) The Board of Trade find it necessary in some cases to appoint one of the members of their consultative staff to make the survey. In such cases they send full information to the local officer, so that facilities for such survey may be afforded. Ibid. p. 5, par. 24. (173) A list of assessors appointed under s. 6, sub-s. 5 of the M. S. Act, 1876, can be obtained from the superintendent of any Mercantile Marine Office, or from any of the Board of Trade surveyors. See Surveys 85. (174) When the detaining officer makes the order for provisional detention, he, at the same time that he issues his order headed Surveys 84a for that purpose, reports to the assistant- secretary of the Marine Depart- ment of the Board of Trade in a form headed Surveys 84b, the name, port of registry, and official number of the ship detained, where and within what port (if any) she is lying, 1262 OWNERS. Pt. III. Unsafe and Unseaworthy Ships. every part of the ship, machinery, equip- ments, and cargo, and may require the unloading or removal of any cargo, ballast, or tackle. See M. S. Act, 1876 (c. 80), s. 12, sub-s. 4. (b) With Assessor. 716. The owner or master, before the person appointed to survey the ship makes the survey, may require that he shall be accompanied by such person as the owner or master may select out of the list of assessors for the court of survey. Ibid. s. 6, sub-s. o. (c) Second Survey.* (d) Surveyors' Fees.f 717. All fees payable in respect of the survey of ships under the M. S. Acts, 1854 to 1876, are to be paid to the superintendent of a mercantile marine office, according to the directions of the Board of Trade, and carried to the Con- solidated Fund. Ibid. s. 39. that he has made provisional detention, and adding the grounds on which he has done so, and making a reference to former papers in the case (if any), and stating that he has on that day given directions to the collector of the port where the ship is lying for the detention of the ship for survey. See Board of Trade Instructions to Detaining Officers, Sept. 1876, Cons. Off. No. 78, p. 2, par. 24. (175) The detaining officer on ordering provisional detention selects from among his staff a competent person, or in grave cases two persons, to mate the survey (Ibid. p. 3, par. 10), and ascertains at once if the owner intends to appoint a surveyor or assessor. Ibid. par. 11. (176) He also sees that the surveyor or surveyors, with or without a person ap- pointed by the owner, as the case may be, proceeds with the survey as quickly as pos- sible. Ibid. par. 12. . (177) A detaining officer, in lieu of ap- pointing a surveyor or surveyors, may him- self, at his own discretion, survey the ship if he thinks proper, when from the nature of the case and his special qualifications he is competent to do so. Ibid. p. 6. par. 27. (178) In cases in which the detaining offi- cer thinks it desirable that assistance should be obtained from the Board in making the survey of a ship he may have ordered to be provisionally detained, he at once applies to the Board for assistance, stating the nature of the questions or difficulties involved. The engineer-in-chief or his assistant, or the principal surveyor of iron and wooden ships or his assistants, or such other persons as the case may require, will be instructed to take charge of the survey. Ibid. par. 25. (179) Detaining officers should never hesi- tate to apply for assistance from London in any case likely to involve any important question as to principle in regard to the strength or construction of the hull, ma- chinery and boilers of ships. Ibid. par. 26. 179a. Tools are not to be used nor the spars or hull of a wooden ship examined previous to detention in any way defaced. Board of Trade Instructions to Surveyors, Dec. 187.9,. Consecutive Office No. 159. 179 J. Upon the detention of a wooden ship the following rules are to be observed in her examination : — the condition of the vessel generally, any irregularity in the shear or other signs of straining, started planks, wasted or slack bolts, started treenails, or bad caulking, are to be noted: the instru- ments to be used in making these and other examinations are a five-eighth auger, a small hooker, a spike gimlet, or a three-eighth auger. The instrument called a pricker is not to be used, either in examining hull or spars. Ibid. * (180) If the Board of Trade are not satis- fied with the first survey, a further order may be issued for detention for further survey. Ibid . and see form Surveys 87b. (181) Any recommendations or suggestions as to preparations for further survey or other matters which the Board's officers may have to make are not made on this form, but are written on a separate sheet. Ibid. (182) If all the parts of the ship have not been seen at the first survey, and the Board of Trade has issued an order for detention for further survey, this form is to be subse- quently supplemented by a fresh copy of this form fully filled up, that is to say, a further supplemental report on this form is made and forwarded by the Board of Trade surveyors, with their report of the further survey. Ibid. 182a. When a further survey is ordered, and it is required to open out the vessel to ascertain what repairs are necessary for her intended service, shipwrights should be em- ployed, to be engaged, if possible, by the owner or master. Ibid. t (183) When, upon inspection, a vessel alleged to be unseaworthy is found to be sea- worthy, no fee is chargeable. See Board of Trade Instructions of October, 1879, Circular 756 C. p. 10. (184) See further as to the fees and ex- penses to be charged in respect of survey of a vessel alleged to be unsafe or unseaworthy, the travelling and personal expenses and overtime of the different classes of surveyors, charges for tapeholders and messengers, and that no fees are to be paid to the surveyor himself, Ibid. pp. 10—12, 13, 14; and this title, Pt. I. c. 6, p. 1208. OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 1263 8. Report.* 718. The surveyor reports the result of his survey to the Board of Trade. See M. 8. Act, 1876 (c. 80), s. 6, suh-ss. 2, 3. 710. When the surveyor and the as- sessor selected by the owner or master from the list of assessors for the court of survey to accompany the surveyor agree in their report, the Board of Trade shall cause the ship to he detained or released accordingly. When they differ, the Board of Trade may act as if the re- quisition had not been made, but the owner and master are entitled to an ap- peal to a court of survey. Ibid, sub-s. 5. See, as to such appeal, c. 2, infra. 9. Release.\ 720. The Board of Trade on receiving the report may order the ship to be re- leased. Ibid, sub-s. 3. * (185) The surveyors' report of their survey of the ship is in the form headed Sur- veys 87. It contains particulars as to the ship, her port of registry, official number and rig, gross and net registered tonnage, when and where she was built, whether of hard or soft wood, and where then lying, and the names and addresses of the manag- ing owners and master. It specifies whether the ship was surveyed by one or two sur- veyors of the board only, or whether he or they were accompanied on the survey by an assessor under sect. 6, sub-sect. 5 of M. S. Act, 1876, and if so mentions that assessor's name, and whether the assessor does or does not agree with the Board of Trade sur- veyors' report. The report then sets out that the ship has been surveyed, and that the sur- veyors are or are not, as the case may be, of opinion, having regard to the nature of the service for which she is intended, that she is unsafe, and if unsafe, that she is so by reason of the defects therein mentioned. The report is signed by both surveyors who surveyed the ship, i. e., by the surveyors appointed by the Board or the Board's principal officer for the district, as the case may be, and the assessor chosen by or on behalf of the owner, if he concurs in their report. If the assessor chosen by or on behalf of the owner does not concur in the report, he should fill up, date, and sign a separate report in the form headed Sur- veys 87a. See Board of Trade Instructions to Detaining Officers, Sept. 1876, Consecutive Office No. 78. (186) Besides the report already alluded to of the Board of Trade surveyor or surveyors, a further report, headed " Surveys 87b, Notes of General Information from Surveyor," and marked " confidential," is made at the same time by the Board of Trade surveyor or sur- veyors. This confidential survey states the name, port of registry, official number and rig, gross and net registered tonnage of the ship, when, where, and how built, and where then lying, the names and addresses of her managing owner and master, the condition of the ship and her equipments outboard, on deck, and below the deck, and detailing the condition of the various parts under those heads, and closing with a summary, stating what defect or defects collectively in their or his opinion render the ship unfit to proceed to sea without serious danger to human life, and reporting accordingly. The report is dated and signed by the surveyors or sur- veyor. Ibid. (187) The reports both of the Board of Trade surveyor or surveyors and of the as- sessor are sent to the Board of Trade when the Board detains the ship and orders the survey, and to the Board's detaining officer when he detains the ship and orders the survey. Ibid. p. 4, pars. 14, 15. (188) If the surveyor or surveyors, as the case may be, report that the ship is unsafe and requires repairs, the detaining officer, in forwarding the report or reports to the Board of Trade, adds his own observations and re- commendations, and his previous order for the provisional detention of the ship con- tinues in force. This, or the officer's release of the ship, or the surveyors' report that she is not unsafe, constitutes his last independent action in the matter, future stages of the case being conducted by the Board of Trade, which communicates with the parties and sends such instructions to the detaining officer by minute or letter, as circumstances appear to the Board to require. See Ibid. p. 4, pars. 13 to 16. (189) Whenever a ship is detained for sur- vey on account of unseaworthiness, there ac- companies the report headed Surveys 87 a memorandum on a printed form issued for that purpose, and dated and signed by the principal officer of the Board of Trade, order- ing the survey, and directed to the assistant- secretary, giving information under the fol- lowing heads :— 1. What led to the detention of the ship ? 2. Had there been any attempt at the time to send or take her to sea 't 3. Had she been cleared outwards or inwards ? 4. Had she any, and if so what, cargo on board? 5. Were her crew engaged, and if so, were they on board, and had they signed articles ? 6. What was the nature of the contemplated voyage ? 7. The names of any of her crew who can speak to her unseaworthiness. 8. Had she recently been repaired, and if so, when ? See the form in Ibid. f (190) If the surveyor or surveyors, as the ease may be, report that the ship is not un- safe, the detaining officer at once orders her release, and sends the reports and papers to the assistant-secretary of the Board of Trade, 1264 OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 721. The Board of Trade may at any time, if satisfied that a ship detained under this act is not unsafe, order her to be released upon or without any condi- tions. M. S. Act, 1876 (c. 80), s. 6, sub-s.7. 722. Any detaining officer appointed by the Board may also, if he thinks that a ship detained by him is not unsafe, order her to be released. Ibid, sub-s. 9. 723. When a ship has been detained under this act she shall not be released by reason of her British register being subsequently closed. Ibid. s. 12, sub-s. 3. 724. On the 7th November a foreigner purchased a British vessel, receiving pos- session thereof and paying a deposit. It was stipulated that the balance was to be paid on receipt of transfer. On the 11th November the vessel was detained by the Board of Trade under the 12th section of the M. S. Act, 1873 (c. 85). On the 20th November the balance of the purchase-money was paid, and a bill of sale (dated the 8th November) was delivered. On the 5th December the British register was closed. Held, that the transfer was not completed until the 20th November, and that the vessel was a British ship at the date of its de- tention on the 11th November. Granfelt v. Lord Advocate, Oases in Court of Ses- sion, 4th series, vol. 1, p. 782. [Scotch.] 725. Whatever equitable rights may be raised between an owner and a pur- chaser, there is nothing but an actual transfer by bill of sale entered on the register which can effect a change in the nationality of a ship. Per Lord Ard- millan, Ibid. 726. An order of detention under sect.. 12 of the M. 8. Act, 1873 (c. 85), does not prevent a British vessel being transfer-' able by sale to a foreign purchaser; it only prevents the closing of the British register effecting the release of the ship. Per the Lord President Inglis, Ibid. 10. Final Order for Detention* 727. The Board of Trade on receiving the report may, if in their opinion the ship is unsafe, order her to be finally detained, absolutely, or until so repaired, altered, unloaded, or reloaded, as the Board may think necessary for the pro- tection of human life, and may vary or add to any such order. See M. S. Act, 1876 (c. 80), s. 6, sub-s. 3. stating that he has done so, and his grounds for having done so. See Board of Trade In- structions to Detaining Officers, Sept. 1876, Cons. Off. No. 78, p. 4, par. 14, and Form 84b. (191) When the ship has been provisionally detained by an order of the Board of Trade, the Board in like cases makes a similar order of release. Ibid. (192) The detaining officer, however, can- not order the release of a ship which has been provisionally detained under an order of the Board of Trade. Ibid. p. 5, par. 22. (193) The collector of customs has no power to release a ship detained for survey, even if sold to foreigners. See note on form Survey 85. * (194) "When the surveyor or surveyors report that the ship is unsafe, one of the assistant-secretaries of the Board of Trade, on the receipt of such report, addresses a communication to the master of the ship in the form headed Surveys 88 (report of survey to be served on master), enclosing a copy of the report of the survey on the ship, stating that in the surveyor's opinion the ship is unsafe, and intimating that if he de- sires to appeal, under s. 6, sub-s. 4 of the M. S. Act, 1876, to a court of survey consti- tuted by that act, the appeal must be made within seven days after the service upon him of the accompanying report, and that unless he appeals within that time the Board of Trade will make a final order for the deten- tion of the ship ; and further informing him that if he does not intend to appeal, but wishes to make the ship seaworthy, and to give every facility for further survey, he will save time and expense by replying at once to that effect, and intimating that any further communication on the subject should be addressed to the Assistant-Secretary, Marine Department, Board of Trade, Whitehall Gar- dens, S.W. See Ibid, and form Surveys 88. (195) If the Board of Trade decides that the ship shall be " finally detained abso- lutely," or " finally detained until the per- formance of certain conditions," it makes an order accordingly in the form headed Sur- veys 89. If the ship is ordered to be detained until the performance of certain conditions, the conditions are specified in this order. This order is signed by one of the assistant- secretaries of the Board. The Board has power to vary or add to this order. Ibid, and Form 89. (196) The Board's detaining officer can never make a final order for the detention of any ship, whether he has provisionally de- tained her or not. Ibid. p. 5, par. 22. (196a) The stages of the case subsequent to detention are conducted by the Board of Trade, who communicate with the parties and the officer, by minute or letter, as the circumstances require. Ibid. p. 4, par. 16. OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 1265 728. An order for the final detention, of a ship, and any order varying the Bame, shall he served as soon as may he on the master. Ibid, sub-s. 2. 729. As to the service of such order, see this tit. Pt. II. c. 45, p. 1253. 11. Costs and Compensation. Taxation. 730. See tit. Costs, c. 27, s. 11, p. 383. 12. Costs and Compensation against Owners. Generally. 731. See tit. Costs, c. 20, s. 13, p. 372. 13. Costs and Compensation against Board of Trade. (a) Generally. 732. See tit. Costs, c. 20, s. 13 (c), p. 372. (b) In Ireland. 733. See tit. Costs, c. 20, s. 13 (h), p. 372. 2. Courts of Survey (References or Appeals to—), 1. Generally. 734. When a ship has been pro- visionally detained, the Board of Trade may at any time refer the matter to the court of survey for the port or district where the ship is detained. See M. S. Act, 1876 (a. 80), s. 6, sub-s. 6. 735. Before the order for final deten- tion is made a copy of the report is to be served upon the master, and within seven days after service the owner or master may appeal to the court of survey for the port or district where the ship is detained. Ibid, sub-s. 4. • 736. As to the mode of service, see this tit. Pt. II. c. 45, p. 1253. 737. As to the right of appeal from the report of a surveyor accompanied by an assessor, Ibid. s. 5, and No. 719. 738. For provisions enabling the Lord Chancellor from time to time (with the consent of the Treasury as to fees) to make, revoke, or alter general rules as to courts of survey, and the summoning of and procedure before the court, the re- quiring on an appeal security for costs and damages, the amount, and application of fees, and the publication of the rules, Ibid. s. 9. 739. The rules made under this act re- lating to the court of survey shall be pub- lished as such rules direct. Ibid. ss. 7 and 9. 74t). In the construction of these rules, words importing the singular number shall include the plural, and words im- porting the plural number shall include the singular number. R. C. S. 1876, No. 3. 741. These rules are published by her Majesty's stationery office through its agents, and a copy is kept at the office of the registrar of every court of survey and at every custom house and mercantile marine office in the United Kingdom, and may be perused thereat by the master or owner of any ship provisionally detained under the M. S. Act, 1876, and by any one deputed by him. Ibid. No. 5. 742. As to appeals to courts of survey from refusal of declarations on survey of passenger ships, see Pt. IV. c. 12, s. 6 (c), p. 1284; from refusal of certificate of clearance for emigrant ships, ibid. c. 11, S. 4, p. 1282 ; from refusal of certificate as to lights and fog signals, see Pt. II. c. 22, s. 3, p. 1246 ; from detention of unsafe ships (foreign) overladen or im- properly laden, see c. 4, p. 1271. As to costs, see tit. Costs, c. 20, ss. 11 and 13, pp. 372, 373 ; and c. 42, p. 415. 2. Courts and Judges. 743. Where a ship has been provi- sionally detained, the Board of Trade may at any time refer the matter to the court of survey for the port or district where the ship is detained. See M. S. Act, 1876 (c. 80), s. 6, sub-s. 6. 744. The judge shall be the person summoned for the case in accordance with the rules under this act out of a list, approved for the port or district by a Secretary of State, of wreck commis- sioners, police magistrates, judges of county courts, and other fit persons ; or in any special ease a wreck commissioner appointed by the Board of Trade. Ibid. s. 7. 745. The courts of survey, with the districts assigned to each, and the per- sons authorized to act as judges and registrars thereof, and which have been approved by one of her Majesty's prin- cipal Secretaries of State, as set forth in Appendix A., shall be the courts of sur- vey, and the districts, judges, and regis- trars of such courts, for the purposes of 1266 OWNERS. Pt. III. Unsafe and Unseaworthy Ships. the M. S. Acta, 1854 to 1876. E. 0. S. 1876, No. 4. See these rules, and list of courts of survey, their judges and regis- trars, set out in 2 Maude & Poll. (4th ed. by Poll. & Bruce), pp. cecclxxi — cccclxxx. 746. The following is a list of the courts of survey in England with the* dis- tricts assigned to each, and the persons authorized to act as judges thereof. See Appendix A. to E. 0. S. Sept. 1876. Berwick, Belford, Alnwick, Morpeth — the judges of the county courts in Cir- cuits 1 and 2 ; the recorder of Berwick. North Shields, Newcastle, Gateshead, South Shields, Sunderland, Seaham Har- bour — the judges of the county courts in Circuits 1 and 2 ; the stipendiary magis- trate at South Shields ; the recorders of Durham and Newcastle. Hartlepool, Stockton — the judges of the county courts in Circuits 2 and 15; the stipendiary magistrate at Middlesbrough ; the re- corder of Hartlepool. Stokesley, Whitby, Scarborough, Bridlington, Beverley, He- don, Hull — the judge of the county court in Circuit 16 ; the stipendiary magistrate at Hull ; the recorders of Hull and Scar- borough. Goole — the j udges of the county eourts in Circuits 16 and 18. Barton-on- Humber, Great Grimsby, Louth, Spilsby, Boston — the judge of the county courts in Circuit 17. Spalding, Holbeach, Wis- beach — the judge of the county courts in Circuits 17, 32, and 35. King's Lynn, Little "Walsingham, Holt, North Walsham — the judge of the county courts in Circuit 32 ; the recorder of King's Lynn. Yar- mouth, Lowestoff — the judge of the county courts in Circuits 32 and 33; the recorders of Oxford, Norwich and Yarmouth. Hales- worth, Framlingham, Woodbridge — the judge of the county courts in Circuit 33 ; the recorders of Aldborough and Oxford. Ipswich, Harwich — the judge of the county courts in Circuits 33 and 38 ; the recorder of Ipswich. Colchester,- Maldon, Eochford — the judge of the county courts in Circuit 38 ; the recorders of Colchester and Maldon. London — the magistrates of the metropolitan police courts. Eo- chester, Sheerness, Sittingbourne, Pavers- ham — the judge of the county courts in Circuit 48 ; the stipendiary magistrate at Sheerness ; the recorders of Paversham and Eochester. Canterbury, Margate, Eamsgate, Sandwich, Deal, Dover, Folke- stone, Hythe, Eomney — the judges of the county courts in Circuits 48 and 49 ; the judge of Admiralty Court of the Cinque Ports ; the recorders of Canterbury, Deal, Dover, Folkestone, Hythe, Margate, Sand- wich, and Tenter den. Eye, Hastings — the judge of the county eourts in Circuit 50 ; the judge of the Admiralty Court of the Cinque Ports ; the recorder of Eye. Lewes, Brighton, Worthing — the judges of the county courts in Circuits 50 and 51; the stipendiary magistrate at Brighton ; the recorders of Brighton and Seaford. Arundel, Chichester, Portsmouth — the judge of the county courts in Circuits 50 and 51 ; the recorders of Chichester, Portsmouth, and Winchester. South- ampton, Newport (Isle of Wight), Christ- church, Poole, Wareham — the judges of the county courts in Circuits 51 and 55 ; the recorders of Poole, South- ampton, Wareham, and Winchester. Weymouth, Bridport — the judge of the county courts in Circuit 55. Axminster, Honiton, Exeter, Newton Abbott — the judge of the county courts in Circuits 57 and 58 ; the recorder of Exeter. Totnes, Kingsbridge — the judge of the county courts in Circuit 58 ; the recorder of Dart- mouth. East Stonehouse, Liskeard— the judges of the county courts in Circuits 58 and 59 ; the recorders of Devonport, Ply- mouth, and Tiverton. Saint Austell, Truro, Palmouth, Helston, Penzance, Eedruth, Bodmin, Camelford, Holsworthy — the judge of the county courts in Cir- cuit 59 ; the recorders of Falmouth, Hel- ston, and Penzance. Bideford, Barn- staple, Williton — the judge of the county courts in Circuit 57 ; the recorders of Barnstaple and Bideford. Bridge- water, Weston-super-Mare, Wells, Bris- tol — the judges of the county courts in Circuits 54 and 57; the recorders of Bristol and Wells. Thornbury, Dursley — the judges of the county courts in Cir- cuits 53 and 54. Gloucester, Newnham, Clepstow — the judges of the county courts in Circuits 24 and 54 ; the re- corder of Gloucester. Newport (Mon- mouth), Cardiff, Bridgend, Neath, Swan- sea — the judges of the county courts in Circuits 24, 30, and 31 ; the stipendiary magistrates at Cardiff and Swansea. Llanelly, Carmarthen, Narbeth, Pem- broke, Haverfordwest, Cardigan, Aher- ayron — the judge of the county courts in Circuit 31 ; the recorder of Carmar- then. Aberystwith, Machynlleth, Dol- gelly, Portmadoc, Pwllheli— the judge of the county courts in Circuit 28. Car- narvon, Llangefni, Bangor, Conway, St. Asaph, Holywell, Chester— the judge of the county courts in Circuit 29; the recorder of Chester. Euncorn, Bir- kenhead, Liverpool — the judges of the OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 1267 county courts in Circuits 6 and 7 ; the stipendiary magistrate at Liverpool ; the stipendiary magistrate at Birkenhead ; judge of Court of Passage ; the recorder of Liverpool. Ormskirk — the judges of the county court in Circuit 6. Preston, Kirkham, Paulton-le-Iylde, Lancaster — the judge of the county courts in Circuit 4 ; the recorder of Preston. Ulverston, Whitehaven, Cockermouth, Wigton, Car- lisle — the judge of the county courts in Circuit 3 ; the recorder of Carlisle. Ibid. 747. For lists of courts of survey in Scotland and Ireland, see lists 2 and 3. Ibid. 748. The district of the court of survey for London includes the City of London, and the districts of all the Metropolitan county courts, the districts of the county court of Kent holden at' Gravesend, Dartford, Greenwich and Woolwich, the districts of the county court of Essex holden at Brentwood and Bomford, and the district of the county court of Surrey holden at Wandsworth. The dis- trict of any other court of survey in Eng- land is the district of the county court of the place at which the court of survey is held. Ibid. 749. The wreck commissioner is judge of every court of survey in the United Kingdom, and the other judges are those described in the second column, Ibid. 750. A court of survey for a port or district shall consist of a judge sitting with two assessors. See M. S. Act, 1876 (c. 80), s. 7. 751. The courts are held at the places whose names they bear, or at any place within their respective districts, and may, by the permission of the judge, be ad- journed to any place out of those districts. See App. A. to E. C. S., September, 1876. 752. As to the powers for payment by the Treasury of salaries to the judges of courts of survey, assessors, registrars, and other officers appointed by M. S. Act, 1876, see M. S. Act, 1876 (c. 80), s. 39. 3. Assessors. 753. A court of survey for a port or district shall consist of a judge sitting with two assessors. Ibid. s. 7. 754. The assessors shall be persons of nautical engineering or other special skill and experience ; one shall be appointed by the Board of Trade, and the other sum- moned according to the rules under this act by the registrar, out of a list of persons periodically nominated by the local marine board of the port, or, if there is no such board, by a body of local shipowners or merchants approved by a secretary of state, or, if there is no such list, shall be appointed by the judge. If a secretary of state thinks fit, on the recommenda- tion of the government of any British possession or foreign state, to add any persons to such list, they shall, until other- wise directed by the secretary of state, be so added, and if there is no such list they shall form such list. Ibid. 4. Registrars. 755. The county court registrar or such other fit person as a secretary of state may from time to time appoint shall be the registrar of the court, and shall, on receiving notice of an appeal or a refer- ence from the Board of Trade, immediately summon the court in the prescribed man- ner to meet forthwith. See M. S. Act, 1876 (c. 80), s. 7. 756. The name of the registrar and his office shall be published in the prescribed manner. Ibid. 757. The registrar of the court of sur- vey for London is Mr. William Edward Stanley Thomson, and his office is at Eoom, No. 725, the Eoyal Courts of Jus- tice, Strand, in the county of Middlesex. See Appendix A. to E. C. S. Sept. 1876. 758. The registrar of any other court of survey in England is the registrar of the county court of the place at which the court of survey is held, and his office is the office of the registrar of that county court. Ibid. 759. The registrar of a court of survey in Scotland is the sheriff clerk of the county in which the court is held, and his office is the office of the sheriff clerk. Ibid. 760. The registrar of a court of survey in Ireland is the clerk of the peace, registrar, or other person discharging the duties of registrar of the court of the chairman of the county in which the court is held, and his office is the office of such clerk of the peace, registrar, or other person. Ibid. 761. A notice shall be put up in some conspicuous place in every custom house and mercantile marine office in the United Kingdom, containing the name of the registrar of the court of survey for that district, and the name of the street or place in which such registrar's office is situated. E, C, S, 1876, No. 6. 1268 OWNERS. Pt. III. Unsafe and Unseaworthy Ships. 5. Notice of Appeal. 762. Where the owner or master of a ship, hereinafter called the appellant, de- sires to appeal to a court of survey, he shall file at the office of the registrar of the court of survey for the London dis- trict, or for the district in which the ship is, hereinafter called the court, a notice in the form No. 1 in Appendix B. E. C. S. 1876, No. 7. 6. Transmission of Notice. 768. Immediately upon the filing of the notice of appeal, the registrar shall communicate the fact, by telegraph and letter, to the Board of Trade, who shall thereupon inform him whether the Board intends to have the appeal heard by a wreck commissioner, and, if so, on what day. Ibid. No. 8. 7. Arrangements for Hearing. 764. If the Board of Trade inform him they do not intend the appeal to be heard by a wreck commissioner, the registrar forthwith ascertains which of the other judges of the court will hear the appeal, and on what day. Ibid. No. 9. 765. The court shall, if practicable, be summoned to hear the appeal on a day not later than fourteen days from the filing of the notice of appeal. Ibid.' No. 16. 766. As soon as the registrar has ascer- tained by whom the appeal will be heard, he summons the court in the form No. 2 in Appendix B. And at the same time sends notice thereof to the Board of Trade and to the appellant, in the form No. 3 in Appendix B. Ibid. No. 13. 767. If the survey has been made on the complaint of the complainant, the Board of Trade sends him notice of the time and place appointed for the hearing. Ibid. No. 14. 8. Selection of Assessors. 768. On ascertaining when the hearing will take place, the registrar shall, if there is a list of assessors for the court, select therefrom the person who is, in his opinion, the best qualified to act as assessor on the appeal ; or if there is no such list, he will take the instructions of the judge as to the assessor to be ap- pointed. Ibid. No. 10. 769. The Board of Trade shall appoint the other assessor, and shall forthwith send the name and address of such assessor to the registrar. . Ibid. No. 11. 770. If the ship is a foreign ship, the registrar shall give notice to the consular officer for the state to which the ship belongs, residing at or nearest to the place where the ship is detained, that, at the request of the appellant, some com.' petent person may be selected by the consular officer to act as assessor. Ibid. No. 12 ; and as to the proceedings on provisional detention, see Nos. 807, 812, infra. 9. Parties. 771. The Board of Trade and the ap- pellant shall be parties to the proceed- ings. Ibid. No. 17. 772. Any other person, on entering an appearance, may, by permission of the judge, be made a party to the proceed- ings. Ibid. No. 18. 10. Survey. 773. The judge and each assessor may survey the ship, and shall have for the purposes of this act all the powers of an inspector appointed by the Board of Trade under the Merchant Shipping Act, 1854 (c. 104), ss. 15, 16. See M. S. Act, 1876 (c. 80), s. 8, sub-s. 2, 774. The judge may appoint any com- petent person or persons to survey the ship and report thereon to the court. Ibid, sub-s. 3 ; and as to survey of foreign ship, see No. 808, infra. T15. The owner and master of the ship, and any person appointed by either of them, or by the Board of Trade, may attend the survey. Ibid, sub-s. 5. 776. The provisions of the Merchant Shipping Act, 1854, as to persons wilfully impeding an inspector, or disobeying his orders, apply to persons so impeding any judge or assessor under this act. Ibid. s. 12, sub-s. 5. 777. As to such powers, see the M. S. Act, 1854 (c. 104), ss. 15, 16, and tit. Seamen, Pt. IV. 11. Evidence. (a) Report of Survey. 778. Previous to the hearing the Board of Trade shall forward to the registrar, to be produced as evidence at the hearing, an official copy of the report of the sur- veyor. E. O. S. 1876, No. 15. (b) Affidavits. 779. Affidavits may, by permission of the judge, be used at the hearing, when; OWNERS. Pt. III. Unsafe and TJnseaworthy Ships. 1269 sworn in the United Kingdom, before any judge or registrar of a court of sur- vey, or before a person authorized to administer oaths in the Supreme Court of Judicature, or before a commissioner empowered to take or receive affidavits, or before a justice of the peace for the county or place where they are sworn or made : in any place in the British do- minions out of the United Kingdom, before any court, judge, or justice of the peace, or any person authorized to ad- minister oaths there in any court : in any place out of the British dominions, before a British minister, consul, vice- consul, or notary public, or before a judge or magistrate, his signature being au- thenticated by the official seal of the court to which such judge or magistrate is attached. Ibid. No. 22. (c) Notice to produce. 780. Either party may give to the other a notice in writing to produce such docu- ments (saving all just exceptions) . as re- late to any matters in difference, and which are in the possession or control of such other party ; and if such notice be not complied with, secondary evidence of the contents of the documents may be given by or on behalf of the party who gave such notice. Ibid. No. 19. 780a. See as to suchnotices generally, tit. Evidence, c. 8, p. 427, and tit. Practice, pt. rr. (d) Notice to admit. 781. Either party may give to the other party a. notice in writing to admit any documents (saving all just excep- tions) ; and in case of neglect or refusal to admit after such notice, the party so neglecting or refusing shall be liable for all the costs of proving such documents, whatever the result may be, unless the court is of opinion that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the officer by whom the costs are taxed, a saving of expense. Ibid. No. 20. 781a. See as to such notices generally, tit. Evidence, c. 9, ss. 1, 2, p. 429, and tit. Practice, Pt. II. 12. Subpoenas. 782. The wreck commissioner shall have power to issue subpoenas as nearly as may be in the form used in the High Court of Justice, and such subpoenas shall have effect, and may be served in any part of the United Kingdom. E. C. S. 1876, No. 21. 782a. As to subpoenas generally," see tit. Pbactice, Pt. II. 13. Place of Hearing. 783. Appeals are heard before the Courts of Survey at the places appointed by their respective judges. 14. Hearing. 784. Causes shall be heard in open court. See M. S. Act, 1876 (c. 80), s. 8, sub-s. 1. 785. At the hearing, the Board of Trade shall first call their witnesses, and having done so shall state in writing what order they require the court to make. E. 0. S. 1876, No. 23. 786. The complainant, if he has ap- peared, shall then call his witnesses, and, having done so, shall state in writing what order he requires the court to make. Ibid. No. 24. 787. The appellant shall then call his witnesses, and, having done so, shall state in writing what order he requires the court to make. Ibid. No. 25. 788. After the appellant has examined all his witnesses, the Board of Trade and the complainant may, on' cause shown to the satisfaction of the judge, call further witnesses in reply. Ibid. No. 26. 789. After all the witnesses have been examined, the court shall first hear the appellant, then the complainant, if any, and afterwards the Board of Trade. Ibid. No. 27. 15. Adjournment. 790. The judge may adjourn the court from time to time and from place to place, as may be most convenient. Ibid. No. 28. 16. Judgment. 791. The judge may deliver the deci- sion of the court either vivd voce or in writing; and, if in writing, it may be sent or delivered to the respective parties, and it shall not be necessary to hold a court merely for the purpose of giving the decision. Ibid. No. 29. 17. Report. 792. The judge shall report to the. Board of Trade in the form No. 5 in Appendix B. Ibid. No. 31. 1270 OWNERS. Pt. III. Unsafe and TJnseaworthy Ships. 793. The judge shall send to the Board of Trade the prescribed report, and each assessor shall either sign the report, or report to the Board of Trade the reasons for his dissent. See M. S. Act, 1876 (c. 80), s. 8, sub-s. 6. 18. Order for "Release or Detention. 794. The judge shall have the same power as the Board of Trade to order the ship to he released or finally de- tained, hut unless one of the assessors concurs in an order for the detention of the ship, the ship shall he released. Ibid, sub-s. 4. 795. As soon as possible after the court has come to its decision, the judge shall issue an order for the release or de- tention (either finally or on conditions) of the vessel in the form No. 4 in Appen- dix B. E. C. S. 1876, No. 30. 19. Costs. 795a. Subject to the order of the judge of the Court of Survey, the costs of ap- peal follow the event. See M. S. Act, 1876 (c. 80), s. 14, and tit. Costs, c. 42, p. 415. 20. Service of Documents. 796. Any notice, summons, or other document issuing out of the court may be served by post. E. S.C. 1876, No. 36. 797. The service of any notice, sum- mons, or other document may be proved by the oath or affidavit of the person by whom it was served. Ibid. No. 37. 798. As to the service of documents under the M. S. Acts, 1854 and 1876, see p. 1253. 21. Computation of Time. 799. In computing the number of days within which any act is to be done, the same shall be reckoned exclusive of the first day and inclusive of the last day, unless the last day shall happen to fall on a Sunday, Christmas Day, or Good Friday, or on a day appointed for a public fast or thanksgiving, in which case the time shall be reckoned exclusive of that day also. Ibid. No. 34. 800. The days between Thursday next before and the Wednesday next after Easter Day and Christmas Day, and the . three following days, shall not be reckoned or included in the computation. Ibid. No. 35. 22. Fees. 801. The fees, a table whereof is in Appendix C, shall be demanded and taken in any proceedings before a court of survey. Ibid. No. 38. 801a. And shall be taken in stamps. Ibid. 11th January, 1877, No. 1. 23. Deposit of Papers at Wreck Commis- sioners Office, London. 802. Immediately on the termination of an appeal before a court of survey elsewhere than in London, the registrar of the court shall forward to the registry of the court of survey for London, The Wreck Commissioners Office, Eoyal Courts of Justice, Strand, for deposit therein all the papers stamped and unstamped be- longing to the appeal. Ibid. No. 2. 3. Appeal to Scientific Referees. 803. If the Board of Trade are of opinion that an appeal under this act involves a question of construction, de- sign, scientific difficulty or important principle, they may refer the matter to such one or more out of a list of scientific referees approved by a secretary of state, as may appear to possess the special qualifications necessary, and may be selected by agreement between the Board of Trade and the appellant, or in default of agreement by the secretary of state, and thereupon the appeal shall be deter- mined by the referee or referees, instead of by the court of survey. See M. S. Act, 1876 (c. 80), s. 15. 804. The Board of Trade, if the appel- lant in any appeal so requires and gives security to the satisfaction of the Board to pay the costs of and incidental to the reference, shall refer that appeal to a referee or referees so selected. Ibid. 804a. The referee or referees shall have the same powers as a judge of the court of survey. Ibid. 4. Unsafe Ships (Foreign) Over- laden or improperly Laden. 1. Power of Detention. (a) Generally.*? 805. When a foreign ship has taken on board all or any part of her cargo at * (197) The power of a Board of Trade 6.0- taming officer to detain a foreign ship under this section is confined to cases of overload- ing, or improper loading, when all or any OWNERS. Pt. III. Unsafe and TJnseaworthy Ships. 1271 Trade shall cause the ship to he detained or released accordingly, hut if they differ, the Board of Trade may act as if the re- quisition for such person to accompany the surveyor had not heen made. Ibid, a port in the United "Kingdom, and is, whilst there, unsafe hy reason of over- loading or improper loading, the provi- sions of this act as to detention of ships apply to that foreign ship as if she ■were a British ship. Ibid. s. 13. 806. These provisions do not apply to any vessel employed exclusively in going from place to place in any river or inland •water of which the whole or part is in any British possession. Ibid. s. 44. 806a. As to which provisions, see c. 1, p. 1258. (h) Notice to Consul.* 807. A copy of the order for the provi- sional detention of the ship shall be forth- with served on the consular officer for the state to which the shiphelongs at or nearest to the place where the ship is detained. " Consular officer " means any consul- general, vice-consul, consular agent, or other officer recognized by a secretary of state as a consular officer of a foreign state. Ibid. s. 13. 2. Survey.\ 808. When the ship has been provi- sionally detained, the consular officer, on request of the owner or master of the ship, may require that the person ap- pointed hy the Board of Trade to survey the ship shall be accompanied hy such other person as the consular officer may select as in the case of detention of a foreign ship. Ibid, sub-s. 2, see No. 770. 3. Order for Detention or Release.% 809. When the ship has heen surveyed hy a surveyor, accompanied by a person selected by the consul, if the surveyor and- such person agree, the Board of 4. Appeal. (a) Generally. 810. When the ship has heen surveyed by a surveyor, accompanied by a person selected hy the consul, and such surveyor and person differ, the owner and master shall have the appeal to the court of sur- vey touching the report of the surveyor provided by this act. Ibid. 811. As to such appeal to the court of survey, vide c. 1, No. 719, c. 2, No. 762. (b) Assessors. 812. When the owner or master ap- peals to the court of survey, the consular officer, at his request may appoint any competent person assessor in such case in lieu of the assessor who, if the ship were a British ship, would be appointed other- wise than by the Board of Trade. Ibid. s. 13, sub-s. 3. 812a. See as to assessors in courts of survey in cases of British ships, c. 1, s. 7 (b), p. 1262. 6. Sending TJnseaworthy Ships to Sea. . 813. Every person who sends, attempts to send, or is a party to sending, any British ship to sea in such unsea worthy state that the life of any person is likely to be endangered, is made guilty of a misdemeanor, unless he proves that he part of the cargo is taken on board at a port in the United Kingdom, and is, whilst at that port, unsafe by reason of overloading or of improper loading. See Board of Trade In- structions to Detaining Officers, September, 1876, Cons. Off. No. 78, p. 4, par. 17. _ (198) The Board of Trade has, and exer- cises, similar powers of detention of foreign ships, and in exercising those powers uses forms very similar to those used by the de- taining officer. Ibid. p. 5, par. 23. * (199) The detaining officer so detaining a foreign ship uses the same forms as in the case of British ships, but, in addition thereto, he serveB on the nearest consular officer of the state to which the ship belongs a copy of his order for her provisional detention. This copy is made on form Surveys 82a, the first part of which he fills in for the pur- pose, enclosing it in a letter to the consular officer. Ibid. p. 4, par. 18. f (200) The detaining officer makes . the best arrangements he can to facilitate the survey of the ship, and if the surveyor or surveyors he appoints, and the person (if any) appointed by the consular officer, agree that . she is not unsafe, the detaining officer imme- diately orders her release. Ibid. p. 5, par. 19. J (201) If, however, the surveyor or sur- veyors appointed by the detaining officer re r port to him that the ship is unsafe, his order of .provisional detention remains in force, and he at once reports the facts, with full par- ticulars, to the Board of Trade for instruc- tions from the Board. Ibid. p. 5, par. 20. 1272 OWNERS. Pt. III. Unsafe and Unseaworthy Ships. used all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in such unseaworthy state was, under the circumstances, reason- able and justifiable ; and every master of a British ship who knowingly takes the same to sea in such unseaworthy state is made guilty of -a misdemeanor, unless he proves that her going to sea in such state was, under the circumstances, reasonable and justifiable. Any of such parties, for the purpose of giving such proof, may give evidence like any other witness. A prosecution under this section shall not be instituted except by or with the con- sent of the Board of Trade, or of the governor of the British possession in which such prosecution takes place. A misdemeanor under this section is not punishable upon summary conviction. See M. S. Act, .1876 (c. 80), s. 4. 814. The provisions of this act do not apply to any vessel employed exclusively in going from place to place in any river or inland water of which the whole or part is in any British possession. Ibid. S. 44. 814a. As to the form of the indictment under this act, see No. 706, p. 1261. 815. By s. 12 of the M. 8. Act, 1873 (c. 85), it is enacted that where the Board of Trade have received a complaint or have reason to believe that any British ship is, by reason of the defective condition of her hull, &c, or by reason of overloading, &c, unfit to proceed to sea without serious danger to human life, they may appoint some competent person or persons to survey her and to report to them, and may, if they think fit, order her to be detained for survey ; and thereupon any officer of customs may detain such ship until her release be ordered either by the Board or by any court to which an appeal is given under s. 14 of the act ; and upon receipt of the report of the surveyor the Board may, if in their opinion the ship cannot proceed to sea without serious danger to human life, make such further order as they may think requisite as to the detention of the ship or as to her re- lease, either absolutely or upon the per- formance of such conditions with respect to repairs, &c, as the Board may impose. Held, that neither the original informa- tion or complaint nor the report of the surveyor need state in terms that the " vessel cannot proceed to sea without serious danger to human life " : it is enough if«|he facts reported to the Board are such as ought reasonably to satisfy them that the condition of the ship is such that she is unfit to proceed to sea without serious danger to human life. Lewis v. Gray, 1 C. P. D. 452. 816. As to survey of passenger steamers for seaworthiness before clearance, see this tit. Pt. IV. c. 13, p. 1285. 6. Unseaworthiness or insuf- ficient Accommodation of Ship. 1 . When charged by Seamen in Defence. (a) Generally. 817. Whenever in any proceeding against any seaman or apprentice for desertion, or neglecting or refusing to join or to proceed to sea, or for being absent from or quitting his ship with- out leave, it is alleged by one-fourth of the seamen, or, if the seamen exceed twenty, by not less than five, that the ship is for any reason not fit to proceed to sea, or that her accommodation is in- sufficient, the court having cognizance of the case shall satisfy itself as to the truth thereof, and receive the evidence of the persons making that complaint, and may summon other witnesses, and if satisfied that the allegation is groundless proceed to adjudicate. SeeM. S. Act, 1871 (c. 110), s. 7. 818. No seaman or apprentice charged with desertion, or quitting his ship with- out leave, shall have any such right of complaint unless previously to quitting his ship he complained to the master of the circumstances so alleged in justifica- tion. Ibid. (b) Survey Report and Order.* 819. The court after hearing the wit- nesses shall, if not satisfied that the alle- gation is groundless, cause the ship to be surveyed. Ibid. * (202) When a ship is, under the provi- sions of this act, directed by a magistrate to be surveyed, the surveyor's report of the result of the survey is made to the assistant- secretary of the Board of Trade in the form headed Surveys 81. See Board of Trade In- structions to Detaining Officers, September, 1876, Cons. Off. No. 78. OWNERS. Pt. IV. Passenger Ships. 1273 820. The court shall require any of the surveyors appointed by the Board of Trade, under the M. S. Act, 1854, or any person appointed for the purpose by that Board, or, under special circumstances, any other impartial surveyor appointed by the court, and having no interest in the ship, freight or cargo, to survey the ship, and answer questions concerning her from the court. Such person shall survey the ship, and make his report in writing to the court, including answers to such questions. The court shall cause such report to be communicated to the parties, and unless proved erroneous the court shall determine the questions before it in accordance therewith. Ibid. 821. For the purposes of such survey, a surveyor shall have all the powers of an inspector appointed by the Board of Trade, under the M. 8. Act, 1854. Ibid. 822. As to the powers of such inspec- tors, see M. S. Act, 1854 (c. 104), ss. 15, 16, and tit. Seamen. p. 373 (c) Costs and Compensation. tit. Costs, c. 20, s. 13, sub-s. (d), 2. On Investigations by Naval Courts. 823. As to the power of any naval court when any ship is the subject of an investigation before it, to order a survey and proceed therein as if directed by a com- petent court in the course of proceedings against a seaman or apprentice for de- sertion or a kindred offence, see M. S. Act, 1871 (c. 110), s. 8; and Wreck In- quiries, by Murton, anno 1884, p. 163. 824. As to the powers of naval courts to direct surveys to ascertain the sea- worthiness or sufficient accommodation of ships in other investigations before them, and as to naval courts generally, see tit. Jurisdiction, Pt. TJ. c. 2, p. 690; and Murton's Wreck Inquiries, pp. 158 — 179. 824a. As to costs in naval courts, see tit. Costs, c. 44, p. 415. 7. Implied Obligation of Sea- worthiness in Contracts with Seamen. 825. In every contract of service, ex- press or implied, between the owner of a ship and the master or any seaman, and in every instrument of marine apprentice- ship, there shall be implied, notwithstand- ing any agreement to the contrary, an obligation on the owner, that he, the master, and the agent charged with the loading, preparing, or sending her to sea, shall use all reasonable means to insure the seaworthiness of the ship for the voy- age at the time when it commences, and during the same ; but nothing shall sub- ject the owner to any liability by reason of the ship being sent to sea in an un- seaworthy state where, owing to special circumstances, the so sending her is rea- sonable and justifiable. See M. S. Act, 1876 (c. 80), s. 5. 826. When a seaman signs ship's articles of agreement, there is an implied warranty that the ship is seaworthy. Turner v. Owen, 3 F. & P. 176— Cock- burn, C. J. 827. As to similar implied obligation in other contracts, see tit. Goods, Cab- mage of— , Pt. II. c. 13, p. 491, and The Glen/ruin, 10 P. D. 103, in Ibid, in Addenda. 8. Service of Documents. 828. See Pt. II. c. 45, p. 1253. Part IV.-PASSENGER SHIPS, 1. Generally.* 829. In citing this act it is sufficient to use the expression " The Passengers * (203) The Passengers Acts now in force are— The Passengers Act, 1855 (c. 119), the Passengers Act Amendment Act, 1863 (c. 51), and the Passengers Act Amendment Act, 1870 (c. 95). There are also various provisions relating to passenger ships in the M. S. Act, 1854, the M. S. Act Amendment Act, 1862, the M. S. Acts, 1872 and 1876, and the Stat. Law Revision Act, 1875 (c. 66). (204) The former Passengers Acts, now re- pealed, are— 43 Geo. 3, c. 56; 5 & 6 Will. 4, c. 55 ; 5 & 6 Vict. c. 107 ; 8 & 9 Vict. c. 14 ; p. 10 & 11 Vict. c. 103; 11 & 12 Vict. c. 6; the Passengers Act, 1849 (c. 33) ; 14 & 15 Vict, c. 1 ; and the Passengers Act, 1852 (c. 44). (205) The Passengers Acts are to be carried into execution in the United Kingdom by the Board of Trade and by emigration officers under the direction of the Board, and in their absence, or at ports where there are no officers, by the chief officer of customs. These officers are exempt from liability for their official acts. Board of Trade Mem. on Pass. Act, 1880, p. 3, No. 1. 4n 1274 OWNERS. Pt. IV. Passenger Ships, Act, 1855." See the PassengersAet, 1855 (c. 119), s. 2. 830. In any process for enforcing the remedies or penalties under the act, it is sufficient to refer by number to the sec- tion under -which the proceeding is taken. Ibid. 831. The schedules to this act are part; of the act. Penalty for breach of direct- tions therein not exceeding ten pounds. See Passengers Act, 1855 (c. 119), s. 103. 832. The Passengers Acts, 1855, 1863, and 1870, are to be construed together. Ibid. 1863 (c. 51), s. 18; ibid. 1870 (c. 95)> s. 1. 833. The term " master " in the Pas- sengers Act, 1855, signifies the person borne on the ship's articles as master, or in charge, or command of the ship (other than the pilot). See the act, s. 3. 834. In the absence of any agreement to the contrary, the owner is the party ultimately responsible, as between him- self and other persons made liable for any default in complying with the require- ments of this act ; and if any such person pays moneys made payable to or on behalf of any such passengers, he is entitled, in the absence of such agreement, to re- cover from the owner the amount so paid, with costs of suit. Ibid. 1855 (c. 119), s. 65. 835. The Board of Trade may, if satis- fied that the food, space accommodation, or other particulars provided in an emi- grant ship for any class of passengers, is superior to the requirements, in those re- spects, of the Passengers Acts, exempt such ship from any of the requirements of those acts with respect thereto upon (206) Appendix 26 contains a list of the ports in the United Kingdom at which there are custom-house officers. Those with aster- isks prefixed are also stations for emigration officers. Board of Trade Mem. on Pass. Act, 1880, p. 3, No. 1. (207) It is to be borne in mind that British passenger ships, except where specially ex- empted therefrom, are, in addition to their liabilities as "passenger ships," under the same responsibilities as British ships gene- rally. As to such responsibilities generally, see this tit. Pt. II. and tit. Seamen. (208) The act is in force not only in the United Kingdom, but also in the Channel Islands. It extends partially to all the colo- nies ; it applies equally to foreign and to British vessels. But the rules prescribed by the Order in Council of the 7th of January, 1864, passed in virtue of the 59th section of the Act of 1855, or to be prescribed by any other Order hereafter to be passed for pro- moting health, cleanliness, and order on board [see cap. 40], are not applicable to ships proceeding to foreign countries, but are bind- ing only on ' ' passenger ships " proceeding to the British colonies. Board of Trade Mem. on Pass. Act, 1880, p. 7, No. 7. (208a) In order, however, to place masters of foreign ships bound to the British colonies on the same footing as British masters, the former are required to give bond to the Crown (sect. 63) to submit themselves in like manner as British subjects to the jurisdiction of the colonial tribunals in case of any viola- tion of the law, and where neither the owner nor charterer reside in the United Kingdom, the bond is to be increased from £2,000 to £5,000, and the obligors are made liable to repay any expenses incurred by the Crown in rescuing, and forwarding to their destina- tion, shipwrecked passengers (sect. 17 of Act of 1863). Ibid. No. 8. (209) Eor the various forms under the Pas- sengers Acts relating to passenger ships, see 2 Maude & Poll. (4th ed. by Poll. & Bruce), pp. ccccxv — ccccxxxiv. (210) An abstract of the last Congressional Act of the United States, relating to pas- sengers, passed in 1855, is in the Appendix, No. 27, to Board of Trade Mem. on Pass. Act, 1880, p. 5, n. (211) Besides this general Congressional. Passengers Act of 1855, which extends over the whole Union, each seaboard state has a local law applicable to the immigration into its own ports. One important provision in these local laws, as regards passengers, is that the owner or consignee of any ship bringing in any lunatic, idiot, deaf, dumb, blind, maimed, or infirm persons, or any one above the age of sixty, or any widow or woman without her husband and with a child or children, or any person likely from any cause to become a public charge, must give a bond of indemnity with two sureties that such persons will not become burthen- some to the state within a certain period. See Board of Trade Mem. on Pass, Act, 1880, p. 5, n. (212) In the state of New York this hond is for 500 dollars for each such impotent person, and is in force for five years. But if the owner or consignee has given a bond of indemnity in the sum of 300 dollars for each passenger landed, able as well as im- potent, and has not commuted it (as he has the option of doing by an immediate pay- ment of 1J dollars for each person), then the 500 dollars bond is not required in respect of the impotent passengers. (Act passed 11 July, 1851, cap. 1523, s. 4.) Practically, however, the commutation money is paid on all the passengers, and the 500 dollars bond is given in respect of those who are deemed likely to become chargeable. Ibid. (213) The Supreme Court of the United States have decided that these local enact- ments are illegal. Ibid. OWNERS. Pt. IV. Passenger Ships. 1275 such conditions as it may think fit. See M. 8. Act, 1876 (c. 80), s. 20. 836. As to the meaning of the follow- ing terms in the Passengers Act, 1855 : — "Her Majesty"— "United Kingdom" — " North America "— " West Indies "— ' ' governor " — " statute adult " — " pas- sage " — "passengers " — " cabin passen- gers " — " upper passenger deck " — "lower passenger deck" — and " emi- grant runner " — see the act, c. 119, s. 3. 837. Words of one number import numbers, and one gender all genders. See the act, s. 3. 838. Under sects. 3 and 71 of the Pas- sengers Act, 1855 (c. 119), a sailing-ship is not a passenger ship because she car- ries more than thirty passengers, or more than one statute adult passenger to every fifty tons, if that number or proportion is not made up without reckoning cabin passengers. Ellis v. Pearce, 1 E. B. & E. 431. 839. And where persons are cabin pas- sengers in all respects, except that of having received contract tickets in the form in Schedule K., which, in its terms, applies to passenger ships only, such per- sons, for the purpose of estimating the number or proportion, are to be reckoned as cabin passengers ; and unless, without, including them, the number or propor- tion is not made up, the ship is not a passenger ship. Ibid. 2. The Ship* 840. The fourth part of this act applies to all British ships and to all foreign steamships carrying passengers between places in the United Kingdom. The pro- visions with respect to the certificates of the masters and mates thereof to which British steamships are subject apply also to such foreign steamships. See the M. S. Act, 1854 (c. 104), s. 291. 841. As to surveys and certificates under this act, the expression "passenger steamer" includes every British steam- * (214) A marked distinction is made be- tween " passenger ships" and ships not car- rying a sufficient number of passengers to bring them within that definition, and which may be called " short ships." To the former, all the provisions of the act apply ; to the latter only six clauses, viz. 10, 16, 17, 48, 49, and 56, which respectively require that facilities of inspection shall bo afforded to the emigra- tion officers ; that lists of passengers, however few, and including cabin passengers (Act of 186a), shall be delivered to the custom-house officers; that passage-money shall bo re- turned, with compensation, if passages are not provided according to contract; that subsistence money shall be paid to passen- gers in case of delay in sailing; and that passongers shall not be landed at the wrong place. Ibid. p. 7, No. 6. (215) Vessels carrying not more than fifty passengers in all, or if sailing vessels not more than one statute adult to every thirty- three tons, or if steamers not more than one to every twenty tons registered tonnage, are partially exempt, and vessels of war, trans- ports, whether in the royal or East Indian service, and vessels trading in the Mediter- ranean, are wholly exempt from the operation of the act. Ibid. p. 8. (216) So it has been held are vessels en- gaged_ in the Newfoundland and Labrador fisheries, although they have on board per- sons not borne on the ship's articles as seamen, provided such persons are for the purposes of the fishery ; the case being ana- logous to that of the indentured labourers of the Hudson's Bay Company, who are not to be deemed passengers in the company's ships under the 3rd section of the Act of 1855. Ibid. p. 8, No. 9. (217) The exemption which mail steamers' enjoyed under the Act of 1855 has been taken away by the Act of 1863, the 4th section of which brings them within the provisions of the law "in like manner as any passenger ship not carrying a mail." Ibid. p. 8, No. 10. (218) The spirit and main object of the Passengers Acts contemplate the protection of those passengers only who aro taken out of the United Kingdom, and not of those who merely touch at British ports on their way from one foreign port to another. Ibid. p. 8, No. 11. (219) Foreign passenger ships, therefore, bound for foreign ports, which put into ports of the United Kingdom in transitu, or to land passengers (although they may sub- sequently be re-embarked), or to embark foreign passengers who come here to join the ship, or to take in bond fide first-class cabin passengers, or cargo, do not come within the scope of the law. But if any British subjects or persons resident in the United Kingdom, other than first-class cabin passengers, be embarked in a number suffi- cient with the foreign passengers already on board to bring the ship within the definition of a "passenger ship," the law becomes ap^ plicable in all its provisions and as regards all the passengers, and the allotment of a separate compartment and a separate dietary exclusively for the use of the British pas- sengers would not affect the case, as the health and comfort of the British passengers can only be sufficiently secured, in the pur- view of the law, by ensuring the health and comfort of their fellow passengers. Ibid. p. 8, No. 12. 4n2 1276 OWNERS. Pt. IV. Passenger Ships. ship carrying passengers to, from or be- tween any places in the United Kingdom, excepting steam bridges. See the M. S. Act, 1854 (c. 104), s. 303. 842. Tor the purposes of thePassengers Acts, 1855 and 1863, the term "passen- ger ship" signifies every description of sea-going vessel, British or foreign, carrying, upon any, voyage to which the Passengers Act, 1855, extends, more than fifty passengers, or morp passengers than in the proportion of one statute adult to every thirty-three tons registered, if pro- pelled by sails, or to every twenty tons, if propelled by steam. See Passengers Act, 1863 (c. 51), s. 3. ■ 843. Every steam vessel, whether British, foreign, or colonial, and whether carrying a mail or otherwise, carrying passengers other than cabin passengers in sufficient number to bring her within the definition of a passenger ship, is sub- ject to the provisions of the Passengers Act, 1 855, and of this act. Ibid. s. 4, as amended by the Stat. LawBev. Act, 1875 (c. 66). . . . . 844. This act does not extend to any of her Majesty's ships of war, nor to ships in the service of the Lords Com- missioners of the Admiralty, nor of the East India Company. Ibid. 1855 (c. 119), s. 4, as amended by the Passengers Act, 1863 (c. 51), s. 4. 845. As to exemption from the pro- visions of the act in cases of ships ap- proved by the Board of Trade, see M. S. Act, 1876 (c. 80), s. 20. 846. Any steamship may carry not ex- ceeding twelve passengers although not surveyed by the Board of Trade as a passenger steamer, nor carrying a Board of Trade certificate, as provided by the M. S. Act, 1854, as to passenger steamers. Ibid. s. 16. 847. "Ship" signifies any description of seagoing vessel, whether British or foreign. See the Passengers Act, 1855 (c. 119), s. 3. 3. The Voyage * 848. This act extends to every " pas-- senger ship" proceeding on any voyage, from the United Kingdom to any place out of Europe, and not in the Mediter- ranean Sea, and on every colonial voyage as therein described, and as to ss. 101 and 102 (imposing penalties on the mas- ter for having more passengers than the prescribed number, and for not issuing to his passengers proper provisions and water), to every ship bringing passengers into the United Kingdom from any place out of Europe not in the Mediterranean Sea. Ibid. s. 4, as amended by the Pas- sengers Act, 1863 (c. 51), s. 4. 4. India, Asia, and Africa. 849. This act does not apply to any of the territories of the East India Com- pany. See the Passengers Act, 1855 (c. 119), s. 99. 850. For provisions empowering the Governor-General of India in Council by act to adopt this act for India, and to make rules respecting food, passengers, medical practitioners, space for passen- gers; and to declare in what manner penalties may be sued for and recovered, and enabling the Indian Act to be en- forced in the colonies in like manner as this act, Ibid.f 851. The Passengers Act, 1855, does not affect the act of 16 & 17 Vict. c. 84, as to the passages of natives of Asia or Africa, and passages between Ceylon and parts of India. Ibid', s. 15. 5. China. 1. Generally. 852. The term " Chinese passenger ship " includes every ship carrying from any port in Hong Kong, and every Bri- tish ship carrying from any port in China, * (220) Vessels going through the Suez Canal, if carrying sufficient passengers to bring them under the act, must conform to the law. Board of Trade- Mem. on Pass. Act, 1880, p. 8, n. (221) Vessels bound to ports out of Europe, but intending to call at a port in Europe, if they start with a sufficient number of pas- sengers on board to bring them within the act must comply with all the requirements of the act, although a portion of the passen- gers are to be landed at a port in Europe. Ibid. p. 9, No. 13. (222) British ships embarking foreign pas- sengers at a British port must clear under the Passengers Acts. Ibid. p. 9, n. t (223) The following Acts, No. 2 of 1860 and Act No. 8 of 1876 (the Native Passenger Ships Act, 1876), have been passed by the Governor-General in pursuance of this power. See 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. ccix. OWNERS. Pt. IV. Passenger Ships. 1277 or within 100 miles of the coast thereof, more than twenty passengers being na- tives of Asia. See the Chinese Passen- gers Act, 1855 (c. 104), s. 1. 853. It shall be lawful for the legis- lature of Hong Kong, by any ordinances by it enacted, to make regulations re- specting Chinese passenger ships. Ibid. s. 2. 854. It shall be lawful for the governor of Hong Kong, for the purposes of the act, to declare by proclamation what shall be the duration of the voyage, and alter the scale of dietary and medicine con- tained in the schedule to the act. Ibid. s. 3. 855: No Chinese passenger ship shall clear out or proceed to sea on a voyage of more than seven days' duration without an emigration officer's certificate and copy of the regulations so made. Ibid. s. 4. 856. Nor until he shall have given a bond in the sum of £1,000, in the forms contained in Schedule C. to the act, to the crown. Ibid. s. 4. 857. A commander of any of her Majesty's ships of war, or any emigration officer, custom house officer, or British consul, may search any Chinese passenger ship (being a British ship or within Bri- tish jurisdiction) for the production of the above papers. Ibid. s. 6. 2. Forfeitures. 858. If any Chinese passenger ship clears out, or proceeds to sea on any voyage exceeding seven days in duration, without her emigration papers or with fraudulently altered papers she shall, if a British ship, or if, not being a British ship, the offence is committed and the ship is seized in British dominions, or in the territories of the East India Company, be forfeited to her Majesty. Ibid. s. 8. 859. Any commissioned officer on full pay, in the British military or naval ser- vice, or any British officer of customs, or consul, may seize and detain any such ship, and bring her for adjudication before the High Court of Admiralty in England or Ireland, or any court having Admiralty jurisdiction in British do- minions, and such court may make such order as it thinks fit, and may award a portion of the proceeds of the sale of the ship to the officer bringing her in for adjudication, or to any persons da- maged by the act or default which has rendered the ship liable to forfeiture. Ibid. s. 10. 860. No such officer shall be respon- sible to any person in respect of the seizure or detention of any such ship, notwithstanding the ship is not brought in for adjudication, or, if so brought in, is declared not liable to forfeiture, if it is shown to the satisfaction of the judge or court that there are reasonable grounds for such seizure or detention ; but if no such grounds are shown costs and damages may be awarded to any party aggrieved. Ibid. s. 11. 861. Penalty against every person who commits, or abets in committing, any act or default by which any Chinese pas- senger ship may become liable to for- feiture not exceeding £100. Ibid. s. 9. 862. The court may impose a penalty in lieu of condemnation of the ship, and apply the same like the proceeds of sale of the ship, if condemned, might have been applied. Ibid. s. 12. 863. Any court, justice, or magistrate imposing any penalty under this act, for which no specific application is herein provided, may, if it or he thinks fit, direct the whole or any part thereof to be applied in compensating any person for any wrong or damage which he may have sustained by the act or default in respect of which such penalty is imposed, or in or towards payment of the expenses of the proceedings ; and, subject to such directions or specific application as afore- said, all penalties recovered in the United Kingdom shall be paid into the receipt of her Majesty's exchequer in such manner as the Treasury may direct. Ibid. s. 14. 864. In any legal proceeding under this act, or in respect of the bond therein required, any document purporting to be the written declaration' of any British consul, or commander of any British ship of war, or to be a copy of the pro- ceedings of any court, shall, without any proof of signature, be received in evi- dence, if it shall appear that such copy or declaration, if produced in the United- Kingdom, was officially transmitted to one of the secretaries of state, or if pro- duced in any colony was officially trans- mitted to the governor. But no person making such written declaration shall be capable of receiving a share of any penalty or forfeiture procured by such written declaration. Ibid. s. 15. 865. As to forfeiture of passenger steamers generally, see Pt. IV. c. 51, p. 1320. 866. As to forfeitures generally, see Pt. n. c. 18, p. 1242, 1278 OWNERS. Pt. IV. Passenger Ships. . The Colonies. 1. Australasia.* 867. For provisions enabling governors of Australasian colonies by proclamation to regulate the number of passengers, and on what decks they may be carried in ships plying between Australasian ports, and under what penalties. See 24 & 25 Vict. c. 52, s. 1. 868. The rules prescribed by such pro- clamations, are to apply as to such inter- colonial voyages in lieu of those on the same subject in the Passengers Act, 1855. Ibid. s. 2. 869. Such rules in such proclamations may be enforced in all British possessions as if part of the Passengers Act, 1855, or of any act incorporated with it. Ibid. s. 3. 870. A copy of any such proclamation purporting to be under the hand of the governor, and public seal of the colony, shall be received as good evidence in all the Queen's dominions. Ibid. 871. Australasia includes Australia proper, New Zealand, Tasmania, parts of New Guinea, and the islands. Ibid. s. 4. 87 la. As to Passenger Acts in force in South Australia, see tit. Jurisdiction, Pt. II. c. 33, No. 11765, p. 744; in Vic- toria, Ibid. c. 34, No. 1185e, p. 746; in West Australia, Ibid. c. 35, No. 1195e, p. 749 ; in New Zealand, Ibid. c. 38, No. 1244, p. 753. 2. Canada.f 872. In the construction of the M. S. Act, 1854, and of the acts amending the same, Canada is deemed one British pos- session,. See the M. S. (Colonial) Act, 1869 (c. 11), s. 7. 3. Colonial Voyages. (a) Generally. 873. For the purposes of this act, the term "colonial voyage" signifies any * (224) Several of our own colonies in North America and Australia have passed Passenger Acts chiefly affecting points to be attended to after the arrival of the ship. Board of Trade Mem. on Pass. Act, 1880, p. 6, n. (224a) There is no tax on emigrants arriving in the Australian colonies. In Canada and Victoria bonds of indemnity are required in respeot of each passenger likely, from bodily or mental infirmity, to become permanently a charge on the colony. In Canada the bond is for 300 dollars, and for three years; in Victoria it is for £100 for five years. Ibid. voyage from any place within any of the British possessions (except those of the East India Company and the island of Hong Kong) to any place whatever, where the distance exceeds 400 miles, or the duration of the voyage exceeds three days. See the Passengers Act, 1855 (c. 119), s. 95. (b) Exemptions. 874. The provisions in this act as to passenger steamers and emigrant ships do not apply to any vessel employed ex- clusively in going from place to place in any river or inland water of which the whole or part is in any British possession. See M. S. Act, 1876 (e. 80), s. 44. 875. This act applies to all ships car- rying passengers on any such colonial voyage, except as to such parts of the act as relate — 1 . To passage brokers and their licences. 2. To passengers' contract tickets. 3. To emigrant runners. 4. To the giving bond to her Majesty. 5. To the keeping on board a copy of this act. 6. To Orders in Council regulating emigration from the United Kingdom, or prescribing rules for promoting health, cleanliness, order and ventilation. See the Passengers Act, 1855 (c. 119), s. 96. 876. If the prescribed duration of the colonial voyage is less than three weeks,- then, in addition to the matters above excepted, the act does not apply to the construction or thickness of the decks; the berths and berthing ; the height be- tween decks ; privies ; hospitals ; light and ventilation ; manning ; passengers' stewards ; passengers' cooks and cooking apparatus; and the surgeon and medicine chest ; nor to the maintenance of passen- gers for forty-eight hours after arrival ; and, in the case of such colonial voyages, the prescribed duration of which is less than three weeks, the requirements of this act as to the issue of provisions, ex- cept as to the issue of water, do not apply t (225) By the Canadian Immigration Act, 1872, a capitation tax of two dollars in respect of each passenger is levied on the master of the ship in any of the following cases:- (1) If the vessel has not been cleared under the Im- perial Passenger Act. (2) If she does, not carry a surgeon. (3) If proper measures for the preservation of the health of the passen- gers and crews have not been observed on the voyage. Board of Trade Mem. on Pass. Act, 1880, jp. 6, n. (225a) Bonds of indemnity for emigrants are not required in the other British colonies. Ibid. 1 OWNERS. Pt. IV. Passenger Ships. 1279 to any passenger who has contracted to furnish his own provisions. Ibid. (c) Proclamation as to Requirements. (aa) Generally. 877. The governor of each of her Ma- jesty's possessions abroad, by proclama- tion for that purpose, may declare what shall be deemed for the purposes of this act the length of the voyage of any ship carrying passengers from such possession to any other place, and may prescribe the scale of diet for passengers during the voyage, and declare what medicines, medical comforts, medical instruments, and other matters shall be deemed neces- sary for the medical treatment of the pas- sengers during such colonial voyage. See M. 8. Act, 1876 (c. 80), s. 97. 878. The governors of any crown pos- sessions may authorize persons to make the like survey and examination of pas- senger ships sailing from such possessions as are required to be made by two or more competent surveyors in respect of pas- senger ships sailing from the United Kingdom, and may also authorize any competent person to act as medical prac- titioner on board any passenger ship pro- ceeding on a colonial voyage. Ibid. b. 98. (bb) Enforcement. 879. The provisions and requirements of every such proclamation shall be en- forced in all her Majesty's dominions as if incorporated in this act. Ibid. s. 97. (cc) Proof of Proclamations. 880. A copy of any such proclamation, purporting to be under the hand of the governor and public seal of such colony, shall, in any part of her Majesty's domi- nions, be received as sufficient evidence of the issuing and contents thereof, unless it is proved not to be genuine. Ibid. 4. Colonial Certificates. 881. When the legislature of any British possession provides for the survey of and grant of certificates for passenger steamers, and the Board of Trade reports to her Majesty that they are satisfied those colonial certificates are equally effi- cient with those granted in the United Kingdom, her Majesty may, by Order in Council, declare that those colonial cer- tificates are of the same force as if granted in the United Kingdom, and that any of the provisions of the M. S. Acts relating to such certificates, with or without modifications, apply to the colonial certi- ficates ; and may impose conditions, make regulations with respect to those colonial certificates, and impose penalties not ex- ceeding £50 for breach thereof. See M. S. Act, 1876 (c. 80), s. 17. 5. Application of Penalties. 882. As to the application of penalties under this act, when recovered in the colonies, see No. 689, p. 1256. 7. Orders in. Council. 883. Her Majesty, by Order in Council, may prescribe rules and regulations as to passenger ships proceeding from the United Kingdom to any place in her Majesty's possessions abroad. 884. Also for preserving order, health, and cleanliness ; also for ventilation (see c. 19, p. 1291); also for the use of an apparatus for distilling water, and defin- ing in such case the quantity of water to be carried. for passengers (see c. 35, p. 1300). 885. Also for prohibiting emigration from any ports affected with disease, for reducing the number of passengers to be carried, and also for requiring duly- qualified medical practitioners to be car- ried (see c. 33, p. 1298). See the Pas- sengers Act, 1855 (c. 119), s. 59 ; and see such Orders in Council in 2 Maude & Pollock (4th ed. by Pollock & Bruce), pp. 60—64. 886. Any such Order in Council may be altered or revoked. Any copy of such Order in Council in the London Gazette, or purporting to be printed by the Queen's printer, is to be received in all legal pro- ceedings as sufficient evidence of the making and contents thereof. See Pas- sengers Act, 1855 (c. 119), s. 59; and the Documentary Evidence Act, 1858 (c. 37), s. 2. 887. In every " passenger ship " pro- ceeding from the United Kingdom to any place in her Majesty's possessions abroad, the medical practitioner on board, aided by the master, or, in the absence of such medical practitioner, the master may exact obedience to all rules and regula- tions prescribed by any such Order in Council. Penalty against any person 1280 OWNERS. Pt. IV. Passenger Ships. neglecting or refusing to obey, or ob- structing the medical practitioner or master in the execution of such duty, or offending against any of the provisions of this act, or guilty of riotous_ or in- subordinate conduct, not exceeding £2, besides imprisonment not exceeding one month, at the discretion of the justices adjudicating on the complaint. See Pas- sengers Act, 1855 (c. 119), s. 60. 8. Abstracts of Acts and Orders in Council. I. Generally. 888. The Board of Trade are to pre- pare abstracts of this act and of Orders in Council made under it. Ibid. s. 61, as amended by M. S. Act, 1872 (e. 73), s. 5. 2. Copies to Masters. 889. Pour copies of such abstracts, with a copy of this act, are, on demand, to be supplied by the principal officer of cus- toms at the port of clearance to the master of every "passenger ship" pro- ceeding from the United Kingdom to any phjce in her Majesty's possessions abroad. See Passengers Act, 1855 (c. 119), s. 61. 3. Production and posting up by Masters. - 890. The master shall, on request made to him, produce a copy of this act to any passenger on board for his perusal, and, further, shall post, previous to the em- barkation of the passengers, and shall keep posted so long as any passenger shall be entitled to remain in the ship, in at least two conspicuous places between the decks on which passengers may be carried, copies of such abstracts. Penalty for breach against master, not exceeding 40*. a day during any part of which by his act or default such abstracts shall fail to be so posted. Ibid. 891. Penalty against any person dis- placing or defacing such abstracts so posted, not exceeding 40s. Ibid. 9. Bond to the Crown * 1. Generally. 892. Before any "passenger ship" shall clear out or proceed to sea, the master and owner or charterer, or, in his absence, or if the master be owner or charterer, one other person, approved by the chief officer of customs at the port of clearance, shall enter into a bond, in £2,000, to the crown, in the form in Schedule (0.). The bond is not liable to stamp duty, and is to be executed in duplicate. Ibid. s. 63. 893. In the case of a passenger ship, of which neither owners nor charterers reside in the United Kingdom, the bond to the crown shall be for £5,000, with an additional condition that the obligors shall, subject as therein contained, pay, as a crown debt, all expenses incurred under this act and the Passengers Act, 1855, in rescuing, maintaining, and for- warding to their destination any of the passengers who, without their own neglect or default, are not conveyed to their in- tended destination by or on behalf of the owner, charterer or master. Ibid. 1863 (c. 51), s. 17. 894. As to the forfeiture of any pas- senger ship clearing out or proceeding to sea without the master having joined in executing the required bond, see No. 1179, p. 1320. 895. If any "passenger ship" is in- tended to call at any intermediate port or place during the voyage, for the pur- pose of taking in water, an engagement to that effect must be insertedin the bond. See the Passengers Act, 1855 (c. 119), s. 34. 2. Certificate of Execution. 896. The chief officer of customs at the port of clearance of any "passenger ship" bound to any of her Majesty's possessions abroad, is to certify on one part of the bond that it has been duly executed by the master and the other obligor. Ibid. s. 64. 897. Such certificate shall, in any co- lonial court of judicature in which the bond may be put in suit, be conclusive * (226) If a vessel takes in passengers at two different ports, although she will require to be cleared under the act at each port, yet no second bond to the crown will be requi- site. Board of Trade Mem. on Pass. Act, 1880, p. 52, No. 108. (226a) As to the supervising inspectors appointed in America pursuant to Act of Congress, and the rules passed by them for the survey and inspection of American ships in American ports, see Eules of Supervising Inspectors, New York, circa anno 1876. [American.] OWNERS. Pt. IV. Passenger Ships. 1281 evidence of the due execution of the bond, and it is not necessary to prove the officer's handwriting, nor that he was chief officer of customs at the port of clearance at the time. Ibid. 3. Transmission. 898. The officer so certifying is to trans- mit that part of the bond to the colonial secretary of the colony to which the ship is bound. Ibid. "4. Limitation of Actions on — . 899. No such bond shall be put in suit in any of her Majesty's possessions abroad after three months from the ship's arrival there, nor in the United Kingdom after twelve months from the return of the ship and master there. Ibid. 10. Surveyor-General. 900. The Board of Trade may appoint a surveyor-general for the United King- dom, and fix his remuneration. See M. S. Act, 1854 (c. 104), s. 305. 11. Emigration Officers. 1. Generally. 901. In the United Kingdom the Board of Trade, and in British possessions the respective governors thereof, may appoint emigration officers and assistant emigra- tion officers for carrying this act into execution. See the Passengers Act, 1855 (c. 119), s. 8, as amended by M.S. Act, 1872 (c. 73), s. 5. 902. All powers and duties exercised by an emigration officer may be exercised by his assistant, or at a port where there is hone such, or in their absence, by the chief officer of customs at such port. Ibid. s. 9. 903. Neither emigration officers nor their estates or effects are liable for pay- ment of moneys, costs, or otherwise, in respect of any contract made by any of them, nor in respect of any proceedings taken against any of them, nor for any act or matter done by any of them in their official capacity. Ibid. s. 7. 904. An emigration officer, appointed under 15 & 16 Vict. c. 44, was justified in refusing to certify that the requirements of the statute had been complied with, if he, acting bond fide, deemed that the quantity of cargo on board a passenger ship was such as to endanger the safety of the ship, although none of the articles expressly prohibited by s. 26 were on board, and although his objection was not to any specific article on board, but solely because the ship was too deep in the water ; and if an action was brought against him for refusing his certificate under such circumstances, he was by s. 81 entitled to have the verdict entered for him. Steel v. Schomberg, 3 C. L. E. 302 ; 4 Ell. & Bl. 620 ; 24 L. J. Q. B. 87 ; 1 Jur. N.S. 679. 2. Inspection by — . 905. The master of every passenger ship or ship intended for carrying pas- sengers on any voyage to which this act extends, shall afford to the emigration officer at any port or place in her Ma- jesty's dominions, and, in the case of British ships, to her Majesty's consular officer at any foreign port or place at which such ship shall be or arrive, every facility for inspecting her, communicating with her passengers, and ascertaining that the provisions of this act, so far as applicable, have been complied with. Penalty for breach against the master, not exceeding £50. See the Passengers Act, 1855 (c. 119), s. 10. 3. Certificate of Clearance. (a) Before Clearance.* 906. No passenger ship shall clear out or proceed to sea until the master has * (227) The emigration officer is to certify that all the requirements of tlie act, so far as is practicable before sailing, have been carried out ; that the ship is seaworthy and in safe trim, and in all respects fit for her intended voyage, and that the passengers and Crew are in a fit state to proceed. Board of Trade Mem. on Pass. Act, 1880, p. 53, No. 110. • (227a) It will be the duty of the emigration officer, when the clearing certificate is applied for, to muster the passengers to see that no more are on board than the law allows, — to have them inspected by the medical officer, — to ascertain whether any of them have any unsatisfied claims as to detention money or otherwise, — to see that the master and first and second mates possess certificates, either of competency or service, — to muster and in- spect the crew, and to see that the ship is in all respects in a fit state to proceed to sea. Until he has satisfied himself on these points, he is not to grant his certificate ; and he will make known bis instructions in this respect 1 282 OWNERS. Pt. IV. Passenger Ships. obtained from the emigration officer at the port of clearance a certificate of clear- ance, that the requirements of this act have been duly complied with, that the ship is in all respects fit for her voyage, and that her passengers and crew are in a fit state to proceed, nor until the master has joined in executing the required bond to the Crown. See the Passengers Act, 1855 (c. 119), s. 11. " 907. As" to forfeiture of the ship for breach, see No. 1179, p. 1320. (b) After touching at or putting bach to the United Kingdom damaged or otherwise. 908. If any passenger ship after clear- ance is detained in port more than seven days, or touches at any place in the United Kingdom, she shall not put to sea again until she has taken on board, at the expense of the owner, charterer, or master, a further supply of pure water and wholesome provisions, medical com- forts and stores, to make up the prescribed quantities, nor until any damage she may have sustained has been effectually re- paired, nor until the master has obtained from the emigration officer or his assist- ant, or, in his absence, from the officer of customs there, a certificate to the same effect as the certificate for clearance. Penalty for breach against the master not exceeding £100 nor less than £50 ; and if the master shall not within twelve hours thereafter report, in writing, his arrival, the cause of his putting back, the con- dition of his ship, stores and provisions, to the emigration officer, or officer of customs at the port, and produce master's list of passengers, not exceeding £20 nor less than £2. See the Passengers Act, 1855 (c. 119), s. 50; and as to forfeiture of the ship for breach, see No. 1179, p. 1320. 4. Appeal from Refusal of Certificate. *909. If the emigration officer refuses to grant such certificate, the owner or char- terer may appeal in writing to the Board of Trade, which shall appoint any two other emigration officers, or two compe- tent persons, at the expense of the appel- lant, to examine into the matter ; and. if the persons so appointed grant a certifi- cate to the purport before required, the certificate shall have the same effect as if granted by the emigration officer of the port of clearance. See the Passengers Act, 1855 (c. 119), s. 11. 12. Shipwright and Engineer Surveyors. 1. Appointment. 910. The Board of Trade may appoint shipwrights' surveyors and engineers' sur- veyors for the purposes of this act at the ports or places it thinks proper. Sea M. S. Act, 1854 (c. 104), s. 305. 2. Powers. 911. The surveyors may, in the execu- tion of their duties, go on board any steamer at all reasonable times, and in- spect any part thereof, or any of the ma- chinery, boats, equipments, or articles on board, or any certificates of the master or mate, under this act, not unnecessarily detaining or delaying the ship; and if for any reason they consider it necessary so to do, may require the ship to be taken into dock to survey her hull. Penalty against any person impeding the surveyor in the execution of his duty, not exceeding £5. Ibid. s. 306. 3. Duties. 912. The surveyors are to execute their duties under the direction of the Board of Trade, and the Board are to make regu- lations as to the surveys, and the notice to be given to the surveyors when sur- veys are required. Ibid. s. 307. 4. Remuneration. 913. The Board of Trade are to make regulations as to the amount and payment of the surveyor's travelling or other ex- penses, and the persons by whom and the conditions under which such payment shall be made. Ibid. 914. Prom every surveyor who demands from the owner or master of any ship sur- veyed by him under this act any remune- ration other than as directed by the Board of Trade, penalty not exceeding £50. Ibid. s. 308. 915. For provisions that no surveyor or person employed under the authority of as widely as possible, in order that the mas- ters and charterers of ships may be warned that their vessels will not be cleared until they are in a complete state. Any delay which may accrue from the neglect on their part of this warning will not be chargeable on the emigration 1 officer. A form of clearing certificate is annexed. Board of Trade Mem. on Pass. Act, 1880, p. 53, No. 110. OWNERS. Pt. IV. Passenger Ships. 1283 the Passengers Act, 1855, shall receive any fee or remuneration in respect of his duties otherwise than by direction of the Board of Trade, penalty for breach not exceeding £50, see the M. S. Act, 1872 (c. 73), s. 15. 916. All fees payable in respect of any services performed by any person em- ployed under the authority of the Pas- sengers Act, 1855, are payable to the superintendent of a mercantile marine office, according to the directions of the Board of Trade, and carried to the con- solidated fund. Ibid. 1876 (c. 80), s. 39. 917. As to the fees and expenses to be charged for surveys of ships, for pas- sengers' certificates, for surveys under the Passengers Acts, and for medical inspec- tion of passengers and crew under those acts, see Pt. I. c. 6, s. 5, p. 1205. 918. See also tables, sanctioned by Board of Trade, set out in 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. cccclxxxiv. 5. Surveys.* 919. The owner of every passenger steamer shall cause her to be surveyed at the times directed by one of the duly-ap- pointed shipwright surveyors and engineer surveyors, such shipwright surveyor be- ing, in the case of iron steamers, a person in the judgment of the Board of Trade properly qualified. See M. S. Act, 1854 (o. 104), s. 309. 920. In reference to surveys of passen- ger steam ships under this act, the word "passengers" includes anypersons carried in a steamer other than the master, crew, and the owner, his family and servants. Ibid. s. 303. 92 1 . When the survey of a ship is made for the purpose of a declaration or certifi- cate under the above enactment, the person appointed to make the survey shall, if so required by the owner, be accompanied on the survey by some person appointed by the owner, and if the two persons agree, there shall be no appeal to the court of survey. Ibid. 1876 (c. 80), s. 14. 922. Every passenger steamer shall be surveyed once at the least in every year in the manner mentioned in the fourth part of the M. S. Act, 1854. Ibid. 1872 (c. 73), s. 8, repealing the provisions of s. 304 of the former act requiring such steamers to be surveyed every six months. 6. Declarations of Result of Survey . (a) Shipwright's Surveyor. 923. The shipwright's surveyor shall, if satisfied with the result of his sur- vey, give the owner a declaration on a Board of Trade form containing state- ments — (1) that the hull of the ship is sufficient for the service intended, and in good condition : (2) that the boats, life buoys, lights, signals, compasses, and shelter for deck passengers, and the cer- tificates of the master, mates or mate, are such and in such condition as required by the acts : (3) the time (if less than six months) for which the hull and equip- ments will be sufficient : (4) the limits (if any) beyond which, as regards the hull and equipments, the ship is in the sur- veyor's judgment not fit to ply : (5) the number of passengers which the ship is in the judgment of the surveyor fit to carry, distinguishing, if necessary, be- tween the respective numbers to be car- ried on the deck and in the cabins, and in different parts of the deck and cabins ; such numbers to be subject to such con- ditions and variations, according to the time of year, the nature of the voyage, the cargo carried, or other circumstances, as the case requires. See M. S. Act, 1854 (c. 104), s. 309; and Board of Trade Instructions as to Passenger Ships, 1884, p. 1. 924. The forging or fraudulent alter- ing of any declaration as to any pas- senger steamer is a misdemeanour. See M. S. Act, 1854 (c. 104), s. 320. (b) Engineer's Surveyor. 925. The engineer's surveyor, if satis- fied with the result of his survey, shall give the owner a declaration on a Board of Trade form containing statements — * (228) If the surveyor requires any defects remedied, or any alterations or additions made, he gives to the owner, agent, master or builder, from whom he received the appli- cation, a written statement on a form headed Surveys 70, setting forth the nature and ex- tent of his requirements, and will not certify the number of passengers to be carried until such alterations are made. When they are made, he sends another report on the form Surveys 70, stating the numbers to be cut in the beam and cut in or painted over the entrance to each place. See Board of Trade Instructions as to Survey of Passenger Ac- commodation, Crew Spaces, 1884, p. 38, par. 61. 1284 OWNERS. Pt. IV. Passenger Ships. (1) that the machinery of the ship is sufficient for the service intended, and in good condition : (2) the time (if less than six months) for which such machinery will be sufficient : (3) that the safety valves and fire hose are such and in such condition as are required : (4) the limits of the weight to he placed on the safety valves : (5) the limits (if any) beyond which, 'as regards the machinery, the ship is in the surveyor's judgment not fit to ply. See the M. S. Act, 1854 (c._ 104), s. 309 ; and Board of Trade Instructions, 1884, p. 1. 926. The declaration by the engineer's surveyor shall, in the case of a ship by this act required to have a certificated engineer, contain, in addition, a state- ment that the certificate or certificates of the engineer or engineers are such and in such condition as is required by this act. See the M. 8. Act Amendment' Act, 1862 (c. 63), s. 12. 927. The forging or fraudulent alter- ing of any declaration as to any passenger steamer is a misdemeanour. See M. S. Act, 1854 (c. 104), s. 320. (c) Appeal from — . 928. If a shipowner feels aggrieved by the declaration of a shipwright surveyor or engineer surveyor respecting a pas- senger steamer, or his refusal to give the declaration ; or the refusal of a certificate of clearance for an emigrant ship, he may appeal in the prescribed manner to the court of survey for the port or district where the ship then is. Ibid. 1876 (c. 80), s. 14. 929. But when the owner appoints a surveyor, who agrees with the Board of Trade surveyor in his report, no appeal lies. Ibid. 930. On the appeal the judge shall report on the question raised by the appeal to the Board of Trade, which, when satisfied that the requirements of the report and the other provisions of the en- actments have been complied with, may — (1) in the case of a passenger steamer give their certificate under s. 312 of the M. S. Act, 1854; and (2) in the case of an emigrant ship give, or direct the emi- gration or other officer to give, a certi- ficate of clearance ; and (3) in the ease of a refusal of a certificate as to lights or fog signals, give or direct a surveyor or person appointed by them to give a certi- ficate under s. 30 of the M. S. Act Amend- ment Act, 1862 (c. 63). Ibid. 931. Subject as therein mentioned, the provisions of this act with respect to the court of survey and appeals thereto, apply to the court of survey when acting under this section. Ibid. 932. As to the courts of survey and the procedure therein, see Pt. III. c. 2, p. 1265. (d) Costs of Appeal. 933. Subject to any order made by the judge of the court of survey, the costs of and incident to the appeal follow the event. See M. S. Act, 1876 (c. 80), s. 14. (e) Transmission. 934. In all cases where it is possible the half-yearly surveys shall be made in the months of April and October, and the declarations shall be transmitted on or before the 30th of April and the 31st of October; but if the owner of any pas- senger steamer is unable to have her sur- veyed in April or October, by reason of her being absent from the United King- dom during the whole period, or of her being under construction or repair, or laid up in dock, or other reason satisfac- tory to the Board of Trade, then he shall have the same so surveyed as soon after as possible, and shall transmit such de- clarations to the Board within fourteen days after receipt, with a statement of the reasons which prevented the survey at the time prescribed. In case of delay in transmitting the declarations, penalty for default not exceeding 10*. a day. See M. S. Act, 1854 (c. 104), s. 311, as amended by M. S. Act Amendment Act, 1862 (c. 63), s. 34, below, and M. S. Act, 1872 (c. 73), s. 8. 935. It is not necessary for such sur- veys to be made in April and October ; but no declaration shall be given by any such surveyor for a period exceeding six months, and no certificate by the Board of Trade shall remain in force more than six months. See M. S. Act Amendment Act, 1862 (e. 63), s. 34. 936. Every passenger steamer shall be surveyed once at the least in every year in the manner mentioned in the fourth part of the M. S.Act, 1854. See M. S. Act, 1872 (c. 73), s. 8, repealing the pro- vision in sect. 304 of the former act, re- quiring such steamer to be surveyed every six months. 937. The owner shall transmit the de- clarations of the shipwright surveyor, and engineer surveyor, to the Board of Trade within fourteen days after receipt. Penalty OWNERS. f»t. IV. Passenger Ships. 1285 for default not exceeding 10*. per day to be paid upon, the delivery of the certi- ficate therein mentioned in addition to the fee for the same, and to be applied like such fees. See M. 8. Act, 1 854 (c. 104), s. 310. 13. Survey for Seaworthiness before Clearance. 1 . Generally.* 938. No passenger ship shall clear out or proceed to sea unless surveyed, under * (229) This survey has reference to sea- worthiness as regards the hull, machinery, and equipment of the ship, and not> as re- gards tlie quantity, quality, or stowage of the cargo, which is left exclusively to the decision of the emigration officer himself. Board of Trade Mem. on Pass. Act, 1880, p. 16, No. 32. (230) The survey should extend in all cases to the masts, yards, pumps, and ma- chinery, as well as to the hull of the vessel, and to her boats, ground tackle, and equip- ments. Ibid. No. 34. (231) The survey must be made before any part of the cargo is taken on board, except so much as may be necessary for ballasting the ship, and any portion of such cargo or any ballast on board must be shifted if re- quired by the emigration officer or surveyors. Ibid. p. 17, No. 35. (232) Vessels, therefore, intending to take cargo at one port and to proceed to another to embark passengers should be surveyed at the port of lading, and the certificate of such survey, signed by the surveyors and the emigration officer of that port, must be pro- duced to the emigration officer at the port of embarkation ; but the production of such certificate will not exempt the vessel from a second survey at the latter port, nor from the necessity of unloading for the performance of such survey, should the emigration officer at that port consider that such second survey is necessary. Ibid. p. 18, No. 36. (233) Such second survey should not, however, be required unnecessarily or vexa- tiously, as it will of course entail expense on the shipowner. But, before dispensing with a second survey, it will be the duty of the emigration officer to satisfy himself that the vessel has suffered no damage or injury Bince the date of the first survey. Ibid. (234) As regards iron passenger ships, not being steamers, one of the surveyors should be a person properly qualified to sur- vey iron ships. Ibid. No. 37. (235) His certificate should state — (1) that the hull and water-tight partitions, if any, of the ship are sufficient for the intended ser- vice, and are in good condition ; (2) that the compasses are in good order and properly adjusted, or that the deviation from local attraction has been properly ascertained ; (3) the time, if less than six months, for which the hull and equipments will be suf- ficient; and (4) the limits, if any, beyond which, as regards the hull and equipments, the ship is, in the surveyor's judgment, not fit to ply. Ibid. (236) As British passenger steamers, whether wooden or iron, were, prior to 1872, required to be surveyed under the M, S. Acts of 1854 and 1862, twice at least in each year by competent officers appointed by the Board of Trade, it is undesirable to put the owners to the expense of a double survey by two sets of government officers where it can be avoided. If, therefore, the emigration officer shall be satisfied that there are no grounds for doubting the seaworthiness of a British steamer which has obtained a passenger cer- tificate from the Board of Trade, he will be at liberty to accept that certificate as suffi- cient on all matters included in it, if dated within six months preceding the clearance of the ship, and he will accept it if the steamer has not left port since the survey was made. Ibid. No. 38. (237) The following is the machinery which must be surveyed in passenger ships, viz. : the engines and boilers used for pro- pelling the vessel and all machinery con- nected therewith ; the boilers of donkey en- gines are to be surveyed with the boilers and machinery of the vessel, when they are in any way connected with them. Boilers and machinery used for loading or unloading the vessel, or used exclusively for purposes unconnected with the motive power of the vessel, do not come within the machinery to be surveyed under the M. S. Act, 1854. See Board of Trade Instructions as to Survey of Hull and Machinery of Passenger Ships, 1884, par. 84, p. 49. (238) Before granting declarations for any period exceeding six months, surveyors in examining machinery should (1) have the upper brasses of all bearings taken off ; (2) the shaft turned round and carefully exa- mined; (3) the cylinder covers and junk rings lifted for examination of the piston and cylinders ; (4) the slide covers or bonnets re- moved for the examination of the slides, and, if necessary, the slides taken out ; (5) the air and circulating pump covers lifted for exami- nation of the pump bucket and wells; (6) the covers of all feed and bilge pump valves re- moved for the examination of the valves; (7) all discharge valves and sea-cocks taken out for examination ; (8) the propeller shaft to be drawn when necessary, and it and the screw examined and properly replaced ; (9) bridges and fire bars removed for a thorough examination of the boilers and furnaces ; (10) all cocks and valves on the boilers taken out and examined. It will rest with the owners whether or not they will have a cer- tificate for any period exceeding six months ; but if they do so determine, the above in- structions are to be complied with before a, 1286 OWNERS. Pt. IV. Passenger Ships. the direction of the emigration officer at the port of clearance, hut at the expense of the owner or charterer, by two or more competent surveyors appointed by the .Board of Trade for each port at which there is an emigration officer, and for other ports hy the Commissioners of Cus- toms, nor unless it is reported by such surveyors that she is in their opinion sea- worthy, and fit for her voyage. The sur- vey shall be made before any part of the cargo is taken on board, except what is necessary for ballast, and such portion shall be shifted, if required. See the Pas- sengers Act, 1855 (c. 119), B. 19, as amended by the M. 8. Act, 1872 (c. 73), s. 5. 939. Penalty for breach against owner, charterer, or master, not exceeding £100 nor less than £5. Ibid. 2. Appeal and Survey anew. 940. In case any passenger ship shall be reported by the surveyors not to be seaworthy, or not fit for her voyage, the owner or charterer, may in writing re- quire the emigration officer, or in his absence the chief officer of customs, to appoint three other competent surveyors, of whom two at least shall be shipwrights, to survey her, at the expense of the owner or charterer ; and if they, by an unani- mous report under their hands (but not otherwise), declare her seaworthy, and fit for her voyage, she shall be deemed sea- worthy for the voyage. See the Passen- gers Act, 1855 (c. 119), s. 19. 14. Board of Trade Certificates. 1. Generally.* 941. Upon the receipt of such declara- tions (». e., those mentioned in No. 937), the Board of Trade shall, if satisfied declaration is granted. The above instruc- tions are to apply at least once a year to the survey of all passenger steamers, with, the exception named in the next paragraph, whatever the period for which these declara- tions are given ; and to carry out the whole as above, it must be done when the vessel is in dry dock. After the examination of the parts as above, the machinery must he tried under steam at full pressure. See Board of Trade Instructions as to Survey of Hull and Machinery of Passenger Ships, 1884, par. 85, p. 50. (238a) In cases in which steamers are sur- veyed under the Passengers Acts at the com- mencement of every voyage and in which they are absent for periods of less than six months at a time, the above instructions (in pars. 84 and 85) do not apply to every sur- vey, the usual examination each voyage is sufficient. One complete survey at least, as indicated above, should, however, be made each year. Foreign-going ships are not to have a declaration given them for less than three months, nor home-trade ships for less than one month, unless limited by docking time, with permission of Board of Trade. Ibid. par. 86, p. 50. * (239) See Order in Council of October 28th, 1879, providing that certificates granted by legislature of Bombay for passenger steamers, &c. shall be equally efficient with certificates granted in the United Kingdom. (239a) Passenger certificates for steamships' are sent in duplicate to the Mercantile Ma^ fine Office mentioned on the back of the declaration, and the master, owner, or agent will be duly advised of the transmission. They will be under the following separate forms : — 1 . For foreign- going steamers or those plying beyond the limits of the home trade (Form 1, Sea-going Steamers). 2. For home-trade passenger steamers or those plying at sea within the limits of the home trade (Form 2, Sea-going Steamers). 3. For steamers plying along the coast du- ring daylight, and within defined limits (Form 3, Excursion Steamers). 4. For steamers plying in waters which are partially smooth (Form 4, Biver Steam- ers). 5. For steamers plying in smooth water (Form 5, Biver and Lake Steamers). See Board of Trade Instructions as to pas- senger accommodation, &c, crew spaces, lights, and fog-signals, 1884, p. 7, No. 1. _ (240) In the case of foreign-going ships which carry more than one mate, the master and first and second mates must have appro- priate certificates, but persons acting as mates of a lower grade are not required to have certificates. Ibid. p. 8, No. 5. (241) All certificates of competency granted to masters and mates of foreign-going ships entitle the holders to go to sea in correspond- ing grades, or in any lower grade, in home- trade passenger ships ; but certificates of service for foreign-going ships do not entitle the holders to go to sea as masters or mates in home-trade passenger ships. Ibid. (242) Certificates for home-trade passenger ships do not entitle the holders to go to sea as masters or mates of foreign-going ships. Ibid. (242a) The details of the officers' certificates are to be taken from the certificates them- selves at every survey. Ibid. p. 9, No. 6. (243) The superintendent of the Mercantile OWNERS. Pt. IV. Passenger Ships. 1287 that the provisions of the act have been complied with, cause a certificate in dupli- cate to be issued that the law as to the survey and declarations has been complied with. Such certificate shall state the limits (if any) beyond which, according to the declaration of the surveyor, such ship is not fit to ply, and the number of pas- sengers which, according to the declara- tion of the shipwright surveyor, such ship is fit to carry, distinguishing (if necessary) between the numbers to be carried on deck, in the cabins, and in different parts of the deck and cabins, subject to such conditions and variations according to the time of year, the nature of the voyage, the cargo carried, and other circumstances, as the case requires. See M. S. Act, 1854 (c. 104), s. 312. 942. As to certificates of passenger steamers under this act, the word ' ' passen- gers " includes any persons carried in a steamer other than the master, crew, and the owner, his family and servants. Ibid. s. 303. 943. The forging or fraudulent altering of any certificate as to any passenger steamer is a misdemeanour. Ibid. s. 320. Marine Office delivers the certificate to the owner, agent, or master, on his applying for same, and paying the expenses, if any. If the certificate is not taken up within four- teen days the fact is reported by the superin- tendent to the Board of Trade. See Board of Trade Instructions for Survey of Passen- ger Accommodation, 1884, p. 7, No. 2. (244) The survey of steamers for pas- senger certificates, other than Steam, 1 (foreign-going) or Steam 2 (home-trade), must he made in the district for which the certificate is required and in which the vessel is intended to ply, and a survey for such certificates made out of the district is not sufficient for dispensing with another survey when the vessel arrives within the district, but this does not apply to surveys of vessels in dry dock, or inspected during construc- tion, and the like. Ibid. p. 17, No. 22. (245) As to. the measurement of passenger accommodation of seagoing steamers making short voyages, in which the time occupied in leaving one port and arriving at the next does not exceed ten hours, see Ibid. p. 16, No. 20. (246) Excursion steamers are to have all the equipments and requirements of home- trade steamers, and are to be of such a sub- stantial character as to be capable of sus- taining bad weather in the event of being caught in it. Ibid. p. 23, No. 24. (247) Declarations for excursion steamers carrying passengers are to be given on form headed Surveys 3. Ibid. p. 24, No. 24. (248) Declarations for steamers carrying passengers and plying within limits parts of which only are smooth water, are to be given on form headed Surveys 4. Ibid. No. 26. (249) Declarations for steamers conveying passengers and plying exclusively in smooth water limits are to be given on form Sur- veys 5. Ibid. p. 25, No. 26. (250) As to the gear, lifeboat, life-buoys and safety-valves with which river steamers are to be provided, see Ibid. p. 24, No. 25, and p. 25, No. 26. (251) The upper weather deck and the upper surface of the poop, forecastle and spar deck, being exposed to the weather, are never to be included in the measurements for passengers in foreign- going steamers; nor are poop, round-house or deck-house to be measured for passengers, unless they form part of the permanent structure of the vessel, but they should in all cases be railed round at the top to prevent children from falling overboard. Ibid. p. 9, No. 7. (252) No reduction in boat accommodation is allowed until the owner has previously, by special application, obtained the sanction of the Board of Trade. See form Surveys 18 ; and Board of Trade Instructions as to Pas- senger Accommodation, &c, 1884, p. 10, No. 9. (253) As to the plying limits for excursion and river certificates, see Ibid. p. 17, No. 23, and the table annexed thereto. (254) In cases in which the passenger ac- commodation in foreign-going steamers is under a different act from the Passengers Act, 1855, the surveyor is guided by the act in question regarding the number of passengers to be carried and the boat capacity. If one act allows more than another, the smaller allowance is that to b.e followed. Ibid. p. 10, No. 9. (255) Declarations for foreign - going steamers carrying passengers are to be given on form headed Surveys \. Ibid. No. 8. (256) As to the mode of measurement of foreign-going steamers carrying passengers, and not coming within the operation of the Passengers Act, "1855, see Ibid. p. 9, No. 7. (257) As regards the passenger certificates of steamers when the passenger accommoda- tion is increased whilst the certificate is in force, and the owners wish the number of passengers such increased space will accom- modate inserted in their certificate before the- next survey, the vessel should be remeasured and a fresh declaration issued, see Board of Trade Instructions, as to fees and expenses of surveys, of October, 1879, Circular 756c, p. 4. (258) If passenger accommodation is known to have been decreased while a certificate is in force, the fact will be reported to the Board of Trade by any officer, when the cer- tificate in force ■will be cancelled ; and if the owners wish the ship to carry passengers again, she must be remeasured and a fresh declaration issued. Ibid. 1288 OWNERS. Pt. IV. Passenger ShipS. 944. When, a passenger certificate has been granted to any steamer by the Board pf Trade under the M. S. Act, 1854, it is not requisite to her employment under the Passengers Acts that she shall be again surveyed, and so long as a steam- ship is an emigrant or passenger ship ■within the meaning of the Passengers Acts, and the provisions of those acts as to survey of her hull, machinery, and equipments have been complied with, she is not' subject to the provisions of the M. S. Act, 1854, as to survey of and cer- tificate for passenger steamers, or to the enactments amending the same. See the M. S. Act, 1876 (c. 80), s. 18. 945. In an action on a marine policy, a plea that the ship was sent by the owners with passengers on board on the voyage on which she was lost, without the owners having done what was neces- sary to enable them to receive, and with- out having received, a passenger's cer- tificate from the Board of Trade, all which the owner well knew, is good. Dudgeon v. Pembroke, L. E. 9 ft. B. 581 ; 43 L. J. Q. B. 220; 31 L. T. 31 ; 22 "W. B. 914. 946. As to the accommodation for pas- sengers in home-trade seagoing steamers, see Board of Trade Instructions as to Survey of Passenger Accommodation, 1884, pp. 10—16, Nos. 10—21. 947. As to the particulars to be shown in the marking of such ships, Ibid. pp. 1 3 — 15, Nos. 17— 19 * 948. As to the mode of determining the number of passengers to be carried on deck, on the quarter-deck, poop, &c, and the number of passengers to be carried below the deck, Ibid. 2. Transmission and Notice of Trans- mission. 949. The Board of Trade shall trans- mit such duplicate certificate (i. e., that mentioned in No. 941) to the mercantile marine superintendent or other public officer at such port as the owner may * (259) As to the measurement of deck shelter and deck space for passenger accom- modation in home-trade passenger steamers, see Board of Trade Instructions as to Survey of Passenger Accommodation, &c, 1884, pp. 11 and 12, Nos. 14, 15, and 16. (260) For the table of limits to be inserted in the declarations of surveyors of home- trade passenger ships, see Ibid. pp. 18 to 23. (261) The application for survey of home- trade passenger steamers should be in the form headed Surveys 6a. Each section or mention for the purpose, or at the port where the owner or his agent resides, or where the ship was surveyed and is lying, and shall cause notice of such transmission to be given by post or otherwise to the master, or owner, or his agent; and such superintendent or officer shall deliver such duplicate certificate to the owner, master, or agent on his apply- ing and paying the fees and other sums (if any) payable. In proving the due issue and transmission to the owner, agent, or master of such certificate, it shall be sufficient to show that it has been duly received by such superinten- dent or officer, and that due notice of the transmission thereof to such officer has been given to such owner, master, or agent. See M. S. Act, 1854 (c. 104), s. 313. 950. No passenger steamer is to pro- ceed to sea or upon any voyage or ex- cursion with any passengers, unless the owner has received the Board of Trade certificate applicable to the voyage or excursion. Ibid. s. 318. 3. Production of- — . 951. No officer of customs shall grant any clearance or transire for any passen- ger steamer, unless upon the production of the Board of Trade certificate. Ibid. 952. If any passenger steamer attempts to ply or go to sea without such produc- tion of her Board of Trade certificate, any such officer may detain her until it is produced. Ibid. 4. Posting up of- — . 953. The owner or master of every passenger steamer shall forthwith on the transmission of any certificate to him or his agent, cause one of the duplicates so transmitted to be put up in some con- spicuous part of the ship, so as to be visible to all persons on board, to be kept there so long as such certificate remains in force and such ship is in use. Penalty part of the ship intended for passengers, whether on deck or below, is to be described shortly in that application, and the number and class of passengers each section or part is intended to accommodate when free from cattle, animals, cargo, or other incumbrance, is to be stated. Ibid. p. 10, No. 11. (261a) Whenever emigration surveys or surveys for passenger certificates are made, the surveyor carefully looks to the efficiency of the fog-horns. Ibid. p. 52, No. 87. OWNERS. Pt. IV. Passenger Ships. 1289 for default against the owner or master not exceeding £10. Ibid. s. 317. 954. Penalty for breach if the steamer plies or goes to sea with any passengers on board, against the owner not exceed- ing £100, and against the master not exceeding £20. Ibid. s. 318. 5. Cancellation or Revocation. 955. The Board of Trade may revoke and cancel such certificates in any caBe in which it has reason to believe — (1) That the declarations of the sufficiency and good condition of the hull, equipments and machinery of any passenger steamer, or either of them, have been fraudulently or erroneously made ; or, (2) That such certificate has otherwise been issued upon false or erroneous information; or, (3) That since the making of such declarations the hull, equipments or machinery of such ship have sustained any injury, or are otherwise insufficient. Ibid. s. 316. 6. Re-issue or Re-grant after Cancellation. 956. "When the Board has cancelled or revoked a certificate it may require the owner to have the hull, equipments or machinery again surveyed, and to trans- mit a further declaration or declarations of the sufficiency thereof, before re-issuing any certificate or granting a fresh one. Ibid. 7. Expiration.* 957. No certificate shall be in force for the purposes of the fourth part of this act beyond the date fixed by the Board of Trade, nor after notice by the Board of Trade to the owner, agent or master that the Board has cancelled or revoked it. But if any passenger steamer is ab- sent from the United Kingdom when her certificate expires, no penalty shall be incurred for 'the want of a certificate until she first begins to ply with passen- gers after her return. Ibid. s. 315. 958. The Board of Trade may require any certificate which has expired, or been revoked or cancelled, to be delivered up as it directs. Penalty against any owner or master who, without reasonable cause, neglects or refuses to comply with such requirement, not exceeding £10. Ibid. 959. Every passenger steamer is to be surveyed once at least in every year. Ibid. 1872 (c. 73), s. 8. 8. Fees. 960. The owner of every passenger steamer shall pay for every certificate so granted by the Board of Trade such fees as such Board directs, not exceeding those in Table T. in the schedule. See M. S. Act, 1854 (c. 104), s. 314. 961. The fees to be charged for certifi- cates in respect of survey shall not exceed for a yearly certificate twice the amount in Table T. Ibid. 1872 (c. 73), s. 8. 9. On Foreign Surveys. 962. When a foreign ship is a passenger steamer or emigrant ship under the M. S. Acts or the Passengers Acts, and the Board of Trade are satisfied with the foreign certificate of survey attested by a British consular officer at that port, and that the requirements of the acts have been sub- stantially complied with, the Board may dispense with any further survey as to the requirements so complied with, and give or direct to be given a certificate having the same effect as if given upon survey under these acts. But her Maj esty may, by Order in Council, direct this sec- tion shall not apply to a survey at any foreign port at which corresponding pro- visions are not extended to British ships. Rid. 1876 (c. 80), s. 19. * (262) In any case in which the surveyor has reason to believe that the hull, machinery, boilers or equipments are not fit for so long a time as the owner has applied for, he is to grant his certificate for such shorter period as he may deem expedient, informing the owners, if necessary, of his reasons for so doing. Unless it is the docking time only that limits his declaration, or the latest date for which an excursion certificate can be granted in accordance with the regulations, he is not to grant a certificate for a home- trade, excursion, river, or smooth-water steamer for a shorter period than one month, nor for a foreign-going steamer for less than a period of three months, without the written p. authority of the Board of Trade. In such cases, and also in cases in which the surveyor refuses the certificate altogether, he is to give a statement in writing of the repairs he con- siders necessary to enable him to grant a certificate for the time asked. By this para- graph the surveyor is to understand that a foreign-going steamer that is not fit for a declaration for three months is not to be deemed by him as fit for a certificate at all. The same rule is to apply to other steamers that are not fit for a month's certificate. Board of Trade Instructions as to Survey of Hull, Equipments and Machinery of Passen- ger Steamships, 1884, par. 7, p. 4. 4 o 1290 OWNERS. Pt. IV. Passenger Ships. 15. Consular Officer. 963. The master of every British pas- senger ship, or ship intended for or car- rying passengers under this act, must afford to her Majesty's consular officer at any foreign port every facility for in- specting the ship, communicating with the passengers, and ascertaining that the provisions of this act have been duly com- plied with. Penalty for breach against master not exceeding £50. See the Pas- sengers Act, 1855 (c. 119), s. 10. 964. The term " consular officer " in- cludes her Majesty's consul-general, con- sul, and vice-consul. Ibid. 16. Passenger Brokers. 1. Bond* 965. No person shall directly or in- directly act as a passage broker in respect of passages from the United Kingdom to any place out of Europe, and not in the Mediterranean Sea, in any passenger ship, or otherwise, unless he shall, with two sureties approved by the nearest emigra- tion officer, have previously entered into a bond in£l, 000 in theform in Schedule (D). The bond is to be renewed on each occa- sion of obtaining his licence, and to be in duplicate, and to be deposited as therein mentioned. Ibid. s. 66. 966. The bond is exempt from stamp duty, but must be renewed annually with, the licence. Ibid. Schedule (D). 967. Each member of a firm acting as a passage broker must give a separate bond with sureties. Ibid. 968. Such bond is not required of any sworn broker of the city of London. Ibid. s. 66. 969. The Board of Trade, persons con- tracting with them or acting under their authority, and any person acting as agent of any passage broker under an appoint- ment in the form in Schedule (I), are ex- cepted. Ibid. 970. The emigration officer may accept the bond of a guarantee society, approved by the Board of Trade, in lieu of the bond of two securities. Ibid. 2. Licence. (a) In England.] 971. No person shall act as such passage broker unless he has obtained a licence for the purpose, then in force. Penalty for breach not exceeding £50 nor less than £20. See the Passengers Act, 1855 (c. 119), s. 66. 972. As to the mode of obtaining an annual licence as passage broker from the justices in petty sessions for the district; the grant thereof in the form in Schedule (E) and the notice thereof in the form in Schedule (E), to be transmitted to the Board of Trade, Ibid. s. 67, as amended by M. S. Act, 1872 (c. 73), s. 5. 973. Each member of a firm acting as a passage broker must have a separate licence. See the Passengers Act, 1855 (c. 119), Schedule (E). 974. Fourteen clear days' notice of the intention to apply for such a licence must be given by post to the Board of Trade in London, in the form in Schedule (G). Ibid. s. 67, as amended by M. S. Act, 1872 (c. 73), s. 5. * (263) As to brokers of the City of Lon- don, see the London Brokers Belief Act, 1870, c. 60. . (564) It. devolves on the emigration officer stationed nearest to the place of business of the passage broker, to satisfy himself as to the solvency and sufficiency of the sureties to the bond. He will, therefore, when their names are submitted to him, call on the broker to furnish also the names and ad- dresses of at least two respectable references for each surety, of whom the usual inquiries can be made. The present law authorizes the_ acceptance of the bond of any guarantee society which may have been approved by the Lords of the Treasury, in Leu of the bonds of two ordinary sureties. Board of Trade Mem. on Pass. Act, 1880, p. 57. No. 116. * (265) The sum for which passage brokers are to give bond to the crown is £1,000 ; but they are allowed the privilege of appointing any number of persons to act as their agents, without the necessity of such agents taking out licences or entering into bonds, the pas- sage brokers being held responsible for their acts and defaults. Ibid. p. 58, No. 119. (266) There is, therefore, no reason for allowing a clerk in the office of a passage broker to act in the matter of passages for his principal, unless be holds the required appointment, and the wording of the 69th section of the Act of 1855 forbids it under a penalty not exceeding £50, nor less than £20. Ibid. p. 58, No. 120. t (267) All licences, whenever granted, expire on the 31st January in each year. The licence, as well as the bond to the Crown, must be renewed annually. The Hcence en- ables the passage broker to act throughout the United Kingdom. Ibid. p. 57, No. 115. OWNERS. Pt. IV. Passenger Ships. 1291 (b) In Scotland. _ 975. As to the appKcation for such licence in Scotland, see the Passengers Act, 1855 (c. 119), s. 67. (c) Forfeiture. 976. Any justices of the peace adjudi- cating on any offence against this act, or on any breach or non-performance of its requirements, may order the licence to be forfeited; and shall forthwith cause notice of such forfeiture, in the form in Schedule (H), to be transmitted by post to the Board of Trade in London. See the Passengers Act, 1855 (c. 119), s. 67, as amended by M. S. Act, 1872 (c. 73), s. 5. 3. Agents.* 977. Passage brokers' agents must be appointed in the form prescribed in Sche- dule I. See Passengers Act, 1855 (c. 119), s. 66. 978. The acts and defaults of any per- son acting as agent of any passage broker are, for the purposes of this act, deemed the acts and defaults of such passage broker. Ibid. 979. No passage broker shall employ as his agent any person not holding from him the appointment of agent as therein mentioned. Ibid. s. 69. 980. Every person holding such ap- pointment shall produce the same, on the demand of any emigration officer, or of any person treating for a passage under this act. Penalty for breach not exceeding £50 nor less than £20. Ibid. 981. Every passage broker shall keep exhibited in a conspicuous place in his office, a list of every person acting as his agent or emigrant runner, and shall on or before the fifth of every month, trans- mit a true copy of such list, signed by him, to the nearest emigration officer, and report within twenty-four hours every discharge or fresh engagement. Penalty for non-compliance not exceeding £5 nor less than £2. Ibid. s. 81. 17. Emigration Runner s.f 982. As to the mode of licensing and registering emigrant runners by the jus- tices of the peace at petty sessions, and supplying them with a badge, Ibid. ss. 76, 77 and 79. 983. For penalties against persons act- ing as emigrant runners without being licensed and registered, or omitting to wear their badge, or persons employing as emigrant runner a person not licensed and registered, or other misconduct of emigrant runners, or persons represent- ing them, Ibid. ss. 75, 78. 984. No emigrant runner is entitled to any fee or reward for his services from any passage broker, unless acting under his written authority. Ibid. s. 80. 984a. Penalty not exceeding £5 for taking or demanding from any person about to emigrate any fee or reward in reference to his passage. Ibid. 985. For form of emigrant runners', annual licence, Ibid. Sched. (M). 18. Construction of Decks and Beams. 986. For provisions as to the construc- tion of beams and decks on board pas- senger ships, and penalty for non-compli- ance against owner, charterer, or master, not exceeding £50, nor less than £5, see the Passengers Act, 1855 (c. 119), s. 20. 19. Light and Ventilation.J 987. No passenger Bhip shall clear out or proceed to sea without such provision • (268) The act does not, in express terms, limit the duration of the agent's appoint- ment, but as the licence of his principal is made to expire at a fixed date, the authority of such licence would naturally expire at the same time. Ibid. p. 58, No. 122. t (269) The emigration officer will take care that that portion of the 81st sect, of the Act of 1855 is duly observed which requires that passage brokers at or near his station shall keep conspicuously exhibited in their ©nice a correct list of the names and addresses of the persons authorized in writing to act as their agents or runners, and also that they furnish him with a true copy of such list on or before the 5th of each month. Ibid. p. 59, No. 124. (269a) If the list includes runners residing at other ports, the names and addresses of such runners should at once be forwarded to the emigration officer at such ports. In cases of suspicion, the emigration officer will re- quire tlie production of the licence, or in case of agents, of their written authority to act. Ibid. t (270) Care should be taken that the means provided for ventilation are sufficient to allow of a good supply of air in the event 4o2 1292 OWNERS. Pt. IV, Passenger Ships. for light and air to the' passenger decks as the emigration officer at the port of clearance may require ; nor, if there are one hundred passengers on hoard, with- out adequate ventilating apparatus ap- proved l>y him; the passengers shall have the unimpeded use of the whole of each hatchway situated over the space appropriated to their use, and there shall he erected over the same such a booby- hatch or other substantial covering as the emigration officer shall judge to afford the greatest amount of light and air, and protection from wet, as the case will admit. Penalty for breach against owner, char- terer, or master, or any of them, not ex- ceeding £50, nor less than £20. See the Passengers Act, 1855 (c. 119), s. 26. 988. Her Majesty, by Order in Council, may prescribe rules and regulations as to passenger ships proceeding from the United Kingdom to any place in her Majesty's possessions abroad for securing their ventilation. Ibid. s. 59. 989. As to such Orders in Council generally, the alteration and proof thereof, see c. 7, p. 1279. SO. Safety-valves.* 990. Every steamer of which a survey is required shall be provided with a safety- valve upon each boiler, so constructed as. to he out of the control of the engineer when the steam is up, and, if such valve is in addition to the ordinary valve, it shall he so constructed as to have an area not less, and a pressure not greater, than the area of, and pressure on, that valve. Penalty for default against the owner appearing in fault not exceeding £100, and against the master appearing in fault not exceeding £50. See M. S. Act, 1854 (c. 104), s. 301, sub-s. 1. 991 . Penalty against any person placing an undue weight on the safety-valve of any steamer, surveyed as therein men- tioned, increasing such weight beyond the limits fixed by the engineer surveyor, not exceeding £100 in addition to other liability. Ibid. s. 302. 21. Fire Engine and Apparatus.! 992. Por provisions as to the descrip- tion and power of the fire engine and appa- of the hatches being closed in bad weather. Places ventilated by hatches only, or in which provision is not made for a sufficient supply of air and light under all circumstances, should not be measured for passengers. See Board of Trade Instructions as to Passenger Accommodation, &c, 1884, p. 9, No. 7. (271) The emigration officer will therefore pay particular attention to the supply of light and ventilation between decks, and see that the law is efficiently carried out. Board of Trade Mem. on Pass. Act, 1880, p. 26, No. 56. (272) At some of the ports this duty is performed by the medical inspectors under the supervision of the emigration officer. Ibid. p. 27, n. (273) It is very advisable that the hold, especially when the cargo consists of coal or grain, should also be ventilated in suoh a manner as not to open into or affect in any way the passenger compartments. Ibid. p. 26, No. 56. (274) The plan for light and ventilation usually adopted in Liverpool at present is as follows: — For ships going through the tropics a shaft is required with skylight through the top-gallant forecastle, another of a large size through the house, and generally three shafts between the mainmast and the stern post. In addition to these shafts, ventilating tubes with bonnet heads are placed forward and aft, varying in size from 12 to 20 inches dia- meter, according to the size of the ship. Side lights are not always insisted on. Por ships crossing the Atlantio or going to Canada, two tubes forward and aft and through the house are generally found sufficient. The large American ships in the passenger trade have many hatchways covered with sky- lights, also ladder-ways through the houses on deck, so that shafting is not required, two tubes forward and two aft generally being sufficient. Ibid. No. 56. (275) Where there are as many as 100 sta- tute adults on board, a proper ventilating apparatus, to be approved by the emigration officer and fitted to his satisfaction, must be insisted on, in addition to the ordinary means of ventilation supplied by the ship. The commissioners do not prescribe any particular kind of apparatus, as improvements are con- stantly in progress ; but for the present they are not aware of any mode which combines economy, simplicity and efficiency in an equal degree to that of iron air funnels inserted into the deck with revolving heads. Ibid s p. 28, No. 56. (276) Over each of the passengers' hatch- ways there must be such a booby hatch or other substantial covering as shall, in the opinion of the emigration officer, afford the greatest amount of light and air, and of pro- tection from the wet, as the case will admit. Ibid. p. 28, No. 57. . * (277) For instructions to surveyors as to. the area, weighting, position, &c, of safety- valves, see Board of Trade Instructions as to the Survey of Hull, Equipment and Ma- chinery of Passenger Ships, 1884, pars. 81, 58, 66—68, 77—83, 92. t (278) .The officer has the power of re» OWNERS. Pt. IV. Passenger Ships. 1293 ratus for extinguishing fire to be carried on board every "passenger ship," and penalty for breach against the master not exceed- ing £50 nor less than £5 sterling, see the Passengers Act, 1855 (c. 119), s. 27. 22. Anchors and Cables.* to be carried by " passenger ships," and penalty for breach against the master not exceeding £50 nor less than £5. Ibid, 23. Chronometers and Com- passes, f 993. For provisions as to anchors and 994. For provisions as to the chrono- cables, their weight, size and materials | meters and compasses to be carried on quiring, if he thinks fit, that, in addition to a fire-engine, some other apparatus for ex- tinguishing fire shall be carried. Board of Trade Mem." on Pass. Act, 1880, p. 32, No. 64. ^ (279) The commissioners are not at present aware of anything more suitable than a pro- per supply of fire-buckets with long lanyards. In order to assist their officers in the exercise of the discretion vested in them on this point, and to promote a uniform practice at the various outports, the commissioners have pre- pared a scale (placed in Appendix No. 19), showing the dimensions and power of the fire- engines and number of buckets which should be required. Ibid. (280) See Appendix, No. 21, for suggestions to masters of emigrant ships respecting boats and fire at sea. Ibid. No. 65. (281) It is advisable that the donkey engine for pumping water through the condenser be so fitted that it can be made available in case of emergency for extinguishing fire in any part of the ship ; a leather hose, with suit- able bends and conductors, is to be supplied for this purpose. See Board of Trade In- structions as to Survey of Hull, Machinery, &c. of Passenger Ships, 1884, par. 92, p. 56. (282) It shall be the duty of the master or of the mate, or officer next in command, once at least in each week to call all hands to quarters and exercise them in the discipline and use of the pumps and all other apparatus for the safety of life on board of such vessel, and to see that all the equipments required by law are in complete working order for immediate use ; and the fact of the exercise of the crew as herein contemplated, shall be entered upon the steamer's log-book, stating the day of the month and hour when so ex- ercised ; and any neglect or omission on the part of the officer in command of such steamer to strictly enforce this rule shall be deemed cause for the revocation of the licence of such officer. See Begulations of Supervising In- spectors, r. 57, circa anno 1876. [America.] * (283) Every "passenger ship" should carry not less than three bower anchors of such weight, and with cables of such length, size, and material as in the judgment of the emigration officer shall be sufficient for the ship and voyage. In no case should the anchor, cable, or hawser be less than or in- ferior to the requirement for classification at Lloyd's. Board of Trade Mem. on Pass. Act, 1880, p. 31, No. 60. (284) There should be a proper locker set apart for the chain cables, and the emigra- tion officer should see that the ends of the cables are securely clinched before the ship proceeds to sea. This last is a very important point. Ibid. (285) Surveyors must be careful to see that each steamer they survey is provided with chain cables and anchors duly certified under the Chain Cable Acts. When the stream and kedge anchors exceed 168 lbs. in weight they also must be tested in accordance with the act. The surveyors should, upon each occasion, require the production of the test certificates of all the chain cables and an- chors. They must also see that the chain cables and anchors on board are sufficient for service and in good condition. The cables must be removed from the chaia lockers at least once in twelve months, cleaned if necessary, and the pins knocked out of the shackles. The shackle-pins should also be secured by small pins of hard wood. The spare anchors should not be stowed below, but kept where they will be ready if required. Proper hawsers and warps must also be supplied. See Board of Trade Instructions as to Survey of Hull Equip- ments, &c. of Passenger Ships, 1884, par. 48, p. 21. t (286) Every "passenger Bhip" must carry, if proceeding to any place south of the Equator, at least two chronometers ; and if to the north of the Equator, one chrono- meter ; and whatever be the destination, at least three steering and one azimuth com- pass. Board of Trade Mem. on Pass. Act, 1880, No. 60. (287) As the employment of iron ships is now common in the passenger trade, the ad- justment of the compasses in such ships has become a matter of primary importance. The emigration officer, therefore, should take particular pains to see that the ship has been effectively swung and her com- passes correctly adjusted and properly ar- ranged before he grants his clearing certifi- cate. Ibid. p. 31, No. 62. (288) In the Appendix is placed an extract of a recent report made by Captain Evans, the superintendent of compasses attached to the Admiralty, on the arrangement of the 1294 OWNERS. Pt. IV. Passenger Ships. ■board " passenger ships," and penalty for breach against master not exceeding £50, nor less than £5, see the Passengers Act, 1855 (c. 119), s. 27. 995. Every seagoing steamer employed to carry passengers shall have her com- passes properly adjusted from time to time ; such adjustment, in the case of ships surveyed, to be made to the satis- faction of the shipwright surveyor, and according to regulations of the Board of Trade. Penalty for default against the owner appearing in fault not exceeding £100, and against the master appearing in fault, not exceeding £50. See the M. S. Act, 1854 (c. 104), s. 301, sub-s. 2. 24. Hospital and Fittings.* 996. For provisions as to the space in every " passenger ship," to be used ex- compasses in an iron ship chartered for the transport service and their bearing on her safe navigation. Board of Trade Mem. on Pass. Act, 1880, p. 31, No. 62. (289) As to the Instructions of the Board of Trade in reference to the adjustment of compasses on passenger ships and the pro- duction of an adjuster, or, in the case of a wooden ship, the furnishing of a table of errors, see Board of Trade Instructions as to Survey of Hull, Equipments, and Machinery of Passenger Ships, 1884, pars. 36, 37, 38, p. 17. (290) The act is silent as to charts. The emigration officer should, however, see that the vessel is provided with proper and accu- rate charts, otherwise she could hardly be said to be " in all respects fit for her intended voyage." Board of Trade Mem. on Pass. Act, J880, p. 31, No. 61. (291) But he could not legally insist on any particular description of charts, as, for example, the Admiralty charts, unless he is satisfied that they are the only correct charts to be had, and that those with which the ship is provided are not sufficient to ensure her safety. Ibid. * (292) In every "passenger ship'' there must, to the satisfaction of the emigration officer, be a sufficient space divided off for one or more hospitals, and properly fitted with bed places, bedding utensils, &c. for the ex- clusive use of the sick passengers. Ibid. p. 23, No. 52. (293) Whenever the emigration officer has a voice in the matter, it would, on sanitary grounds, be advisable that the hospitals, or at least one of them, should be placed in a poop or deck-house if practicable, rather than on the upper passenger deck. Ibid. (294) To assist the judgment of the emi- gration officer in deciding upon the supply of beds to be shipped for hospital use, a scale is placed in the Appendix. The space must not -be less than at the rate of 18 clear superficial feet for every fifty passengers (not statute adults). The hospitals can be placed only on the upper passenger deck, or in the poop, or any deck-house which shall be pro- perly built and secured to the satisfaction of the emigration officer. Where a vessel takes passengers on more than one deck, the' owner or charterer may choose whether the hospitals should be placed on the upper passenger deck, or in the poop or deck-house, or divided between them, unless the poop or deck-house, from the number of cabin and other passengers carried therein, should be- come an upper passenger deck under the terms of the 3rd section of the Act of 1855, when the hospitals must be placed in the poop or deck-house, and not elsewhere. Ibid. (295) The United States law prohibits more than two tiers of berths, and requires the berths to be 6 feet long by 2 feet wide, and the bottom berth to be not less than 9 inches from the deck. Only a single pas- senger is to be placed in each berth, but double berths may be constructed and occu- pied by two women, or by a husband and wife, or a woman and two children under eight, or by a man and two of his own chil- dren under eight, or by two men, members of the same family. Ibid. p. 23, n. (296) The space occupied by the hospitals is not to be deducted from the superficial contents of the deck, which regulate the total number of passengers to be carried thereon. Ibid. p. 24, No. 53. (297) There arises, therefore, at first sight some doubt as to the way in which the pas- sengers displaced by the hospitals should be distributed between the deck on which the hospitals are constructed and the other pas- senger deck. The question is not free from legal difficulty; but after considering the several sections which bear upon it, and the whole spirit of the act, the commissioners are of opinion that the proper course is the following:— (1) to calculate the whole num- ber of passengers which the ship is legally capable of carrying; (2) to calculate the number which each deck would be capable of carrying, after deducting the space which it is proposed to reserve in each for hospitals ; and (3) to distribute the whole legal comple- ment of passengers between the different decks in proportion to the number which each deok, taken by itself and exclusive of the room actually occupied as hospitals, would be capable of carrying. Ibid. (298) This is also the American law, but it restricts the hospital to 100 superficial feet. Ibid. p. 24, n. OWNERS. Pt. IV. Passenger Ships. 1295 olusively as a hospital for the passengers, and as to the fittings and furniture thereof to the satisfaction of the emigration offi- cer, and penalty for breach against the owner, charterer, or master not exceeding £50, nor less than £5, Ibid. s. 24. 25. Privies * 997. For provisions as to the construc- tion of privies in "passenger ships" to the satisfaction of the emigration officer at the port of clearance, and the main- tenance thereof in a serviceable and cleanly condition throughout the voyage, and until after forty-eight hours from the arrival of the ship at the port of final discharge, unless all the passengers sooner quit the ship; and penalty for breach against the master not exceeding £50 nor less than £5, Ibid. a. 25. 26. Ship's Boats, Bafts, and Life Buoys.f 998. For provisions as to the boats and life buoys, and the number thereof to be carried and kept in order by every "passenger ship" according to her ton- nage, one being a long boat and one a life boat, and penalty for breach against the master not exceeding £50 nor less than £5, Ibid. s. 27. 27. Signals of Distress and Lights.} 999. Every seagoing passenger steamer and emigrant ship must be provided to the satisfaction of the Board of Trade with means for making the signals of distress at night specified in the M. S. Act, 1873, or in any rules substituted therefor, including means of making on the ship flames inextinguishable in water, or such other means as the Board of Trade may previously approve; and with a proper supply of lights inextinguishable in water and fitted for attachment to life buoys. See M. S. Act, 1876 (c. 80), s. 21. 1000. Penalty for breach against owner not exceeding £100, and against master not exceeding £50. Ibid. 1001. As to such signals, seePt.TI.c.23, p. 1247. 1002. For provisions as to adequate means to be approved by the emigratipn officer at the port of clearance of making signals by night and in fogs,- to be carried by every "passenger ship," and penalty for breach against the master not exceed- ing £50 nor less than £5, see the Pas- sengers Act, 1855 (c. 119), s. 27. 28. Crew. 1. Sufficiency. \\ 1003. For provision for the carrying * (299) See for regulations of "Board of Trade in reference to water-closets in home- trade passenger ships, Board of Trade In- structions as to Survey of Passenger Accom- modation, &c, 1884, par. 12, p. 11. (300) The act under this head requires that where there are as many as fifty female pas- sengers, two at least of the required privies must be water-closets, placed under the poop or elsewhere on the upper deck, to the satis- faction of the emigration officer, for the exclu- sive use of the women and young children. If any water-closets are placed in the be- tween decks, there must be an interval between them and the nearest berths of at least nine inches, and these would not super- sede the necessity of having water-closets under the poop or on the upper deck. Board of Trade Mem. on Pass. Act, 1880, p. 26, No. 54. (301) While the act distinguishes between privies and water-closets, it abstains from specifying any particular description of closet, leaving that point to be settled be- tween the master and the emigration officer. Hid. No. 55. (302) Any closet fitted with water would meet the words of the act ; but a control is ■ lodged in the hands of the emigration officer by the proviso that the privies and water- closets are to be fitted to his satisfaction. Ibid. (303) It will be his duty, therefore, to see that the water-closets are so fitted as to be serviceable and safe both for the passengers and the ship, but he need not insist on valves and pipes for this purpose, if satisfactory provision can, in his opinion, be made for it m any other way. Ibid. (304) The American law requires one safe and convenient privy for every 100 pas- sengers. Ibid. p. 26, n. f (305) For the regulations given to the Board of Trade surveyors as to the boats and life buoys to be carried on passenger ships, see Board of Trade Instructions as to Survey of Hull, Equipments, &c. of Passenger Ships, 1884, pars. 23—34, pp. 11—17. X (306) See, for Board of Trade instruc- tions, in respect of statutory distress signals, their examination, guns and rocket appa- tus, Ibid. pars. 49—54, p. 22. || (307) This section requires generally that passenger ships shall be manned with "an efficient crew ; " but it does not prescribe any ratio of men to tonnage. Board of Trade Mem. on Pass. Act, 1880, p. 32, No. 66. 1296 OWNERS. Pt. IV. Passenger Ships. of an efficient crew on board every "pas- senger ship" to the satisfaction of the emigration officer, and that the men are not to be changed without his consent, and penalty for breach against the master not exceeding £50, see the Passengers Act, 1855 (c. 119), s. 28. 1004. As to survey of crew spaces by surveyors of Board of Trade, see Pt. I. c. 36, p. 1190. 2. Appeal from Emigration Officer's Decision. 1005. If the emigration officer con- siders the crew inefficient, the owner or charterer may appeal in writing to the Board of Trade, which shall, at the ex- pense of the appellant, appoint two other emigration officers or competent persons to examine into the matter, and the una- nimous opinion of the persons so ap- pointed, expressed under their hands, shall be conclusive. See the Passengers Act, 1855 (c. 119), s. 28. 3. Medical Inspection. 1006. See as to medical inspection of stores for the crew, c. 42, s. 9, p. 1313. 29. Cooks and Cooking Apparatus.* 1007. As to the cook or cooks and the cooking apparatus and fuel for the same to be carried on board " passenger ships" to the satisfaction of the emigration offi- cer, and penalty for breach against the master not exceeding £50 nor less than £5, see the Passengers Act, 1855 (c. 119), s. 39. 30. Stewards. 1008. For provisions for every "pas- senger ship " with 100 passengers carry- ing a steward, who is to be approved by (308) The emigration officer must on this point be influenced by the usage of the port at which he is stationed ; but he must bear in mind that a sufficient crew for a passenger ship includes efficient crews for all the boats, and also that a cargo ship may very well be navigated with a less crew than would be safe if the same ship full of passengers had to carry sail with the hatches open. Board of Trade Mem. on Pass. Act, 1880, p. 33, No. 66. (309) To assist the judgment of the emi- gration officer and promote a uniform prac- tice, the commissioners have, after consulting their most experienced naval officers, pre- pared the crew scale placed in the Appendix No. 20, as applicable to sailing vessels. Ibid. (310) This scale requires 4 men for each 100 tons of the ship's registered tonnage, for all vessels of 500 tons and under ; 3 men for each additional 100 tons between 500 and 1,000 tons; 2£ men for each additional 100 tons between 1,000 and 1,500 tons; and 2 men for every 100 tons over 1,500 tons. Two- thirds of the seamen are to be A.B.'s, and two boys under 18 are to count as one ordi- nary seaman ; but not more than two boys for each 500 tons are to be carried. In the computation of the crew the captain, officers, carpenter, ship's cook, and steward are to be included. Ibid. (311) It sometimes occurs that sailors are engaged for an Australian voyage at. a nomi- nal rate of wages, e.g., Is. a month, their object being to get a free passage out. In these cases the emigration officer would not be justified in objecting to them on the ground of the bargain they had made with the owner, if he had no reason to doubt that they were engaged- in good faith, and were to work the ship on the voyage. He would, •. however, be justified in objecting to them if he had reason to conclude that the insertion of their names in the ship's articles was colourable — that they were not really sea- men — that they were not to proceed on the voyage — or, if they proceeded, that they were not to work the ship. Ibid. (312) By the 136th section of the Merchant Shipping Act, 1854, Part 3 (c. 104)— which, however, applies only to British ships — no foreign-going ship shall go to sea unless the master and the first and second mates, or only mate,, as the case may be, have obtained and possess valid certificates, either "of competency" or "of service," appropriate to their several stations in the ship, or of a higher grade. Ibid. p. 34, No. 66. (313) The penalty for an infraction of this enactment is a sum not exceeding £50 on the master or mate, and on the person em- ploying them. The act does not fix the number of mates to be carried in a ship. The emigration officer could not, therefore, object to clear a ship carrying only one mate, unless he considers, from the circumstances of the case, that an additional officer of that class is indispensable to her safety. In short, he must in every case satisfy himself, before he clears the ship, that the crew on board is efficient, both in numbers and in character, and that the master and first and second mates, if more than one is carried, possess certificates either "of competency" or "of service." Ibid. * (314) It will be important to see that the cooking apparatus is adequate for the number of passengers intended to be taken, that it is firmly secured in its place, that its housing is properly protected from fire by a sufficient metal- lining, and that there is a supply of fuel for the voyage. Ibid. pp. 42, 43, No. 87. OWNERS. Pt. IV. Passenger Ships. 1297 the emigration officer, and not to assist in navigating the ship, and penaltyfor breach against the master not exceeding £50 nor less than £5, Ibid. s. 38. 31. Cargo. 1. Horses, Cattle, and Dangerous or In- jurious Goods.* 1009. No " passenger ship " shall clear out or proceed to sea if there shall he on board as cargo, horses, cattle, gunpowder, vitriol, lucifer matches, guano, or green hides, nor if there shall be on board any article as cargo or ballast, which by reason of its nature, quantity or mode of stowage shall, singly or collectively, be deemed by the emigration officer at the port of clearance likely to endanger the health or lives of the passengers or the safety of the ship. Penalty for breach against owner, charterer or master not exceeding £300 nor less than £5. Ibid. s. 29. 1010. As to the conditions under which horses, dogs, pigs, goats and cattle may be carried in passenger ships, see the Passengers Act Amendment Act, 1863 (c. 51), s. 8. 1011. One of the secretaries of state may by order under his hand, according to the conditions and directions therein specified, authorize the carriage as cargo in any passenger ship of naval and mili- tary stores for the public service. Ibid. 1870 (c. 95), s. 3. 1012. As to the delivery of the order to and by the master, and the penalty for breach being the same as that for carry- ing such articles or cattle without such order, see Ibid. * (315) As to the prohibition of the con- veyance of gunpowder, &c. see the Explosive Substances Act, 1875 (c. 17), s. 42, and the M. S. Act, 1873 (c. 85), ss. 23—28; 2 P. & B. 4th ed. p. 186. (316) The mate of every passenger steamer shall also carefully examine all packages of freight delivered on board for shipment, with a view to detect and prevent any combustible or dangerous articles being delivered on board without his knowledge. Eegulations of Supervising Inspectors, rule 58, circa anno 1876. [American.] (317) As to foreign-going steamers, when cargo or stores are carried in the space mea- sured for passengers, one passenger is to be deducted for every 12 superficial feet of deck space so occupied. See Instructions as to Survey of Passenger Accommodation, &c. 1884, p. 10, No. 8. (318) As to the arrangements to be made when cattle are carried, see Ibid. p. 11, No. 13; p. 23, No. 24; p. 24, No. 25; p. 25, No. 26. (319) The Act of 1855 altogether prohibited horses and cattle as cargo in passenger ships. But as a rigid application of this rule to pas- senger ships carrying but comparatively few passengers was found seriously to interfere with the exportation of animals needed for the improvement of stock in the colonies, the Act of 1863 has so far relaxed the prohibition as to allow horned cattle, deer, horses, asses, dogs, sheep, and female goats (but not male goats or pigs) to be taken as cargo in num- bers proportioned (within narrow limits) to the tonnage of the vessel, provided the pas- sengers on board do not exceed the propor- tion of fifteen to each 100 tons register, and that for their use and exercise at least 10 superficial feet per statute adult be kept clear on the weather deck. Board of Trade Mem. on Pass. Act, 1880, p. 35, No. 69. (320) Besides gunpowder, vitriol, lucifer matches, guano and green hides, which are absolutely prohibited, there is a general pro- hibition against taking as cargo or ballast any article or number of articles which, by reason of their nature or quantity or mode of stowage, shall either singly or collectively be deemed by the emigration officer likely to endanger the health or lives of the passen- gers or the safety of the ship. Ibid. (321) It is on this latter part of the clause that questions frequently arise, such as whether salted hides, packed or unpacked salt, iron in an unusual quantity, coal, &c, come within the meaning of the prohibition. The determination of these and similar ques- tions rests with the emigration officer. Ibid. pp. 35, 36, No. 69. (322) In the appeals that have been made to the commissioners on this part of the law, they have declined to sanction the shipment of salted hides unless packed in tight casks, or flour of sulphur ; but they have not ob- jected to salt in moderate quantities, and properly packed; nor to the description of coal or of patent fuel, such as Warlich's, Wylam's, and the national patent steam fuel, which on chemical analysis have been found not liable to spontaneous combustion. Ibid, p. 36, No. 69. (323) "With regard to iron, they have in- structed their officers not to allow the ship- ment of such a quantity (taken in ordinary cases at two-thirds the registered or British tonnage) as would be likely from its weight to strain or endanger the ship; and, as much must depend on the manner of its stowago, they have further directed them to watch the stowage of ships carrying iron, so as to ascertain that it is properly distributed fore and aft, and raised by chequering or other- wise. Ibid. 1298 OWNERS. Ft. IV. Passenger Ships. 2. Stowage. (a) Interference with Passenger Accommo- dation.* 1013. In every "passenger ship" no part of the cargo, passengers' luggage, provisions, water or stores, whether for the use of passengers or crew, shall be carried on the upper deck or on the "passenger decks," unless in the opinion of the emigration officer it shall be so placed as not to impede light or ventila- tion, nor interfere with the comfort of the passengers, nor unless stowed to his satisfaction, and the space occupied there- by, or in bis 'opinion unavailable for the accommodation of the passengers, shall (unless occupied by passengers' luggage) be deducted in calculating the space by which, under the provisions of tbis act, the number of passengers is regulated. Penalty for breach' against owner, char- terer, or master, not exceeding £300 nor less than £5. See the Passengers Act, 1855 (c. 119), s. 29. (b) Storage of Water. 1014. As to the tanks or casks in which water is to be carried being approved by the emigration officer, and being of a re- quisite strength, &c, see Ibid. s. 33, and the specifications of water casks sanc- tioned by the Board of Trade, set out in 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. cccexxx. *32. Interpreters. 1015. In every foreign "passenger ship" in which half of the passengers are British subjects, unless the master and officers or not less than three of them understand and speak English, there shall be carried, according to the number of passengers, one or two per- sons who understand and speak the lan- guage of the master and crew and the English language, and they shall act as interpreters, and be employed exclu- sively in attendance on the passengers, and no such ship shall clear out or pro- ceed to sea without having such inter- preter or interpreters on board. Penalty for breach against the master, not ex- ceeding £50 nor less than £5. Ibid, s. 40. 33. Medical Man.f 1016. Every passenger ship shall carry a duly qualified medical practitioner, rated * (324) As a general rule, no part of the cargo, passengers' luggage, -provisions, water or stores should be carried on the upper or passengers' decks. Board of Trade Mem. on Pass. Act, 1880, p.- 36, No. 70. (325) But as the stowage of very heavy cargo, such as iron, at the bottom of the ship, makes her laboursome, and in some cases unseaworthy, the law permits the stowage of a portion of the cargo on deck, with the con- sent of the emigration officer, provided that it be stowed to his satisfaction, and so as not to impede light or ventilation, or inter- fere with the comfort of the passengers. Ibid. (326) The room occupied by any cargo on the passengers' decks is to be deducted from the space by which the number of passengers is regulated. Ibid. (327) See also instructions to surveyors as to carriage of coal in passenger ships. Ibid. p. 36, n. t (328) The Order in Council of August 9th, 1866, orders every passenger ship carry- ing more than fifty passengers to carry a duly-qualified medical practitioner. See same in 12 Hertslet, p. 1100. (329) The only definition given of the term "duly qualified," is, that the medical man shall be authorized by law to practise in some part of her Majesty's dominions (or in the case of a foreign ship, in the country to which the ship may belong), as a physician, surgeon or apothecary. Any difficulty, how- ever, as regards medical practitioners in the United Kingdom may be considered as re- moved by the Medical Act of 1858, o. 90, (amended in minor points by the 22 Vict. o. 21, and 23 Vict. c. 7.) By that act (s. 15) all persons possessing the qualifications specified in Schedule A. to the act, are entitled to be registered by one of the three branch medical councils for England, Scotland and Ireland respectively, and unless so registered they cannot recover at law their charges (s. 32), nor hold any appointment in the military or naval service, or in emigrant or other vessels, nor in any hospital, parish, union, friendly society or other publio- establishment, body or institution (s. 36). See Board , of Trade Mem. on Pass. Act, 1880, pp. 43, 44, No. 90. (330) The emigration officers, therefore, will be guided by the Medical Act as regards British practitioners, and require them to produce in proof of their qualifications either a copy of the " Medical Register" contain- ing the name of the candidate, or a certifi- cate under the hand of the registrar of the general council, or of any branch council, that he is duly registered. Ibid. p. 44, No. 90. (331) Medical men authorized to practise in the colonies may, however, without being registered, take charge of passenger ships OWNERS. Pt. IV. Passenger Ships. 1299 on the ship's articles when the duration of the voyage, as therein computed, exceeds eighty days for sailing ships and forty-five days for steamers and the num- ber of passengers exceeds fifty, or when the number of persons on board (includ- ing cabin passengers, officers, and crew) exceeds 300. Penalty for breach against the master not exceeding £100 nor less than £20. See the Passengers Act, 1855 (c. 119), s. 41. 1017. As to the proper qualifications of such a medical man, the notification of his name to, and his approval by, the emigration officer at the port of clearance, and the requirement that he shall be pro- vided with proper surgical instruments to the satisfaction of such officer, Ibid. s. 42. 1018. Penalty against any unqualified person attempting to proceed as medical practitioner, and against all persons aid- ing therein, not exceeding £100 nor less than £10. Ibid. 1019. For provisions enabling governors of colonies to appoint medical practitioners to passenger ships on colonial voyages, Ibid. s. 98. 1020. Every foreign-going ship having 100 persons or upwards on board shall .carry on board as part of her complement some person duly authorized to practise as physician, surgeon, or apothecary. Penalty for default against owner for every voyage, not exceeding £100. See M. S. Act, 1854 (c. 104), s. 230. 1021. Her Maj esty, by Order in Council, may prescribe rules and regulations as to passenger ships proceeding from the United Kingdom to any place in her Majesty's possessions abroad, for re- quiring duly-qualified medical practi- tioners to be carried in passenger ships in cases where they would not be required to be carried under the provisions of this act. See Passengers Act, 1855 (c. 119), s. 59. 1022. As to such Orders in Council generally and the alteration and proof thereof, see this Part, c. 7, p. 1279. 1023. In every passenger ship pro- ceeding from the United Kingdom to any place in her Majesty's possessions abroad, the medical practitioner on board, aided by the master, or, in the absence of such medical practitioner, the master, may exact obedience to all rules and regulations prescribed by any such Order in Council. See Passengers Act, 1855 (c. 119), s. 60. 1024. Penalty against any person neg- lecting or refusing to obey, or obstruct- ing the medical practitioner or master in the execution of such duty, not exceeding £2, besides imprisonment not exceeding one month, at the discretion of the jus- tices adjudicating on the complaint. Ibid. 34. Medical Stores. 1. Generally. 1025. For provisions for the supply by the owner or charterer of every "pas- senger ship," for the use of the pas- sengers, of medicines, medical comforts, instruments, and other things proper for diseases and accidents incident to sea voyages, and for the medical treatment of the passengers, including an adequate supply of a disinfecting fluid or agent, and printed or written directions for use, in the judgment of the emigration officer at the port of clearance good and sufficient for the voyage, and properly packed and placed under charge of the medical prac- titioner, when there is one on board, to be used at his discretion, and penalty for breach against the master not exceeding £50, nor less than £5, see Ibid. s. 43. 1026. As to the taking on board of further medical stores and comforts to make up the prescribed quantities on the ship putting back to or touching at any port or place in the United Kingdom, see Ibid. s. 50. 1026a. As to lime juice, see c. 35, s. 2, p. 1034. 2. Inspection.* 1027. As to the medical inspection of such medicines, medical comforts, and from the United Kingdom, which they could not have done under the Act of 1852; and when the majority of the passengers in the ship, or as many as 300 of them, are foreigners, any medical man may be carried (whatever his professional qualification), pro- vided only that he is approved by the emi- gration officer. Ibid. No. 91. * (332) The emigration officer is constituted the judge of the sufficiency, both as regards quality and quantity, of uie medicines and medical comforts for passenger ships. Ibid. p. 45, No. 94. (333) With a view to a uniform practice in this matter at the several ports, the commis- sioners [Board of Trade] have, with profes- 1300 OWNERS. Pt. IV. Passenger Ships. other articles, by some medical practi- tioner appointed by the emigration officer at the port of clearance, and his certificate to the officer that the ship contains a sufficient supply thereof, and of disinfect- ing agents, instruments, and other things requisite for the medical treatment of the passengers, see the Passengers Act, 1855 (c. 119), s. .44:* 1028. Penalty in case of any passenger ship clearing out or proceeding to sea without complying with all such require- ments, against the master not exceeding £100, nor less than £5. Ibid. 1029. If the emigration officer shall be unable to obtain the attendance of a medical practitioner, the master may clear out and proceed to sea, on receiving from the officer written permission for the purpose. Ibid. 1030. Any local marine board may, on the requirement of the Board of Trade, appoint and remove a medical inspector of ships for the port, and fix his remu- neration, subject- to the control of the Board of Trade ; and at ports where there are no local marine boards the Board of Trade may appoint and remove such in- spectors, and fix their remuneration ; such inspectors are to inspect the medicines, medical stores, sugar, vinegar, lime, lemon juice, or other articles, required to be kept on board any such ships; and such in- spection, if at places where there are local marine boards, shall be made under their direction, and in any special cases under the direction of the Board of Trade, and if made at places where there are no local marine boards, shall be made under the direction of the Board of Trade. See the M. S. Act, 1854 (c. 104), s. 226. 1031. Such medical inspectors shall for the purposes of such inspection have the same powers as the inspectors appointed by the Board of Trade under the first part' of this act (for such powers see ss. 14 and 15 of the act, and tit. Seamen); but every such inspector, if required by timely notice in writing from the master, owner, or consignee, shall make his inspection three days at least before the ship pro- ceeds to sea, and if the result of the in- spection is satisfactory shall not again make inspection before the commencement of the voyage, unless he has reason to suspect that some of the articles inspected have been subsequently removed, injured, or destroyed. Ibid. 1032. Whenever any such medical in- spector is of opinion that in any ship here- by required to carry them such articles or any of them are deficient in quantity or quality, or placed in improper vessels, he shall signify the same in writing to the chief officer of customs of the port, and to the master, owner, or consignee, and the master of such ship, before pro- ceeding to sea, shall produce to such- chief officer of customs a certificate under the hand- of such or some other medical in- spector, that such deficiency has been supplied or remedied, or that such im- proper vessels have been replaced by proper vessels ; and such chief officer of customs shall not grant a clearance for such ship without the production of such certificate, and if such ship attempts to go to sea without a clearance, he may detain her until such certificate is produced; penalty against the owner, master, or. consignee, if such ship proceeds to sea without the production of such certificate, not exceeding £20. See the M. S. Act, 1854 (e. 104), s. 226. 1033. For provisions enabling governors of colonies by proclamation to declare what shall be deemed for the purpose of this act the scale of medicines, and medi- cal comforts, and enabling such proclama- tions to be received as evidence, see the Passengers Act, 1855 (c. 119), s. 97. 35. Provisions and Water. 1. Generally. + 1034. There was in an agreement under seal for the use of cabins and accommo- sional assistance, prepared and placed in the Appendix, for the use of the emigration officers, two scales of medicines, medical stores, and instruments, one applicable to Australian and other distant voyages, and the other to North American voyages. See Board of Trade Mem. on Pass. Act, 1880, p. 45, No. 94. * (334) But to assist him in this part of his duty, the law requires (sect. 44 of Act of 1 855) that the mediGal examiner of passengers shall inspect the medicines, medical comforts, &c. and certify to the emigration officer that they are sufficient for the voyage. "Without this certificate the emigration officer should not grant his clearing certificate. Ibid. t (335) By notice in London Gazette of 29th April, 1856, another dietary scale, in- stead of Scale B in the 35th section of the Passengers Act, 1855, was authorized. See the scale set out in 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. cxcii. See also sect. 20 of the M. S. Act, 1876, giving power to the Board of Trade -to modify requirements-as to OWNERS. Pt. IV. Passenger Ships. 1301 dation for passengers in a ship, a covenant on the part of the captain to permit and suffer the hirer to stow away the haggage of the passengers in a part of the hold. food, &c. Board of Trade Mem. on Pass. Act, 1880, p. 37, n. (336) The present scale of provisions, though diminishing the quantity of oatmeal formerly required, includes meat, and makes a difference between voyages to North Ame- rica and those to more distant destinations, the latter containing more flour and the ad- ditional articles of preserved meat, suet, raisins, and butter. Ibid. pp. 37 and 38, No. 74. (337) It is necessary that the emigration officer should, in the case of each ship, in-. form himself what scale is intended to be used on the voyage. Ibid. p. 39, No. 75. (338) This can readily be done by an in- spection of the contract ticket issued to the passengers. He will then ascertain that the provisions laid in are of the proper kind and qualities. Ibid. (339) A careful survey of the water and provisions in an emigrant ship is one of the most important of the emigration officer's duties. He will therefore give his special attention to this point ; and as attempts have occasionally been made to pass inferior ar- ticles by overlaying them with a small por- tion unobjectionable in quality, he will always select indiscriminately a certain pro- portion of the packages of each sort of pro- visions, and have all their contents thoroughly exposed to view. For this purpose one in ten at least of the packages of articles which do not spoil by opening should be selected ; but while in ordinary cases this mode of exami- nation will suffice, yet if there is any reason to suspect an attempt to evade the law, a strict general search should be made with a view of detecting the fraud. Ibid. No. 76. (340) Should the emigration officer dis- cover any provisions or stores which are not of good and wholesome quality, or which are not in a sweet or good condition, he will at once reject, mark, and have them landed, and such provisions cannot afterwards be re- shipped either in the same or any other ' ' pas-: senger ship" under a penalty not exceeding £100. Ibid. No. 77. (341) The emigration officer having ascer- tained the quality of the passengers' provi- sions, will next satisfy himself as to their quantity, with reference to the length of the voyage, and the issues prescribed in sect. 35. Ibid. No. 78. (342) The Act of 1855 does not alter the length of the different voyages prescribed by the Act of 1852. Ibid. p. 37, No. 71. (343) An error has crept into the rule regu-r lating the length of voyage to North America, which, however, affects only vessels clearing out on the 16th or 17th day of January. The first limb of the rule declares the length of the voyage to be seventy days for sailing vessels and forty days for steamers that clear out between the 15th day of January and the 14th day of October, both days inclusive ; whilst the second limb declares eighty and forty-five days respectively as the length of the voyage if the vessel clears between the 15th day of October and the 17th (it ought to be the loth) day of January, both days inclusive, thus overlapping by two days in January the rule in the first limb. Should it happen that a vessel clears out on the 16th or 17th of January, the commissioners con-' sider that the law would be satisfied if she be provisioned for the shorter and not the longer period. The emigration officer will guide himself accordingly whenever the case arises. Ibid. No. 72. (344) The declared length of voyage to North America for certain passenger steamers has, by notice in the London Gazette, dated 7th June, 1864, been reduced from forty and forty-five days to thirty-two and thirty- seven days respectively. See Appendix (0) to Passengers Acts, Ibid. p. 37, n. (345) The emigration officer will bear in mind that what the passengers themselves may bring is not to be reckoned, but is irre- spective of what the owner, charterer, or master is bound to provide. Ibid. p. 39, No. 78. (346) The exact mode of ascertaining the quantity of provisions must depend very much on the facilities for counting and weighing packages afforded by each port. Ibid. pp. 39, 40, No. 78. (347) At some of the ports this duty is performed by the medical inspectors. Ibid. p. 39, n. (348) The commissioners do not, therefore, lay down any precise rule on this point, but leave each officer to adopt the course which he may consider most effectual, Ibid. p. 40, No. 78. (349) He will, moreover, see that there is an ample supply of wholesome food for vic- tualling the crew, and all other persons on board besides the ordinary passengers. Ibid. (350) A scale of provisions for the crew must, however, by the 149th section of the M. S. Act, 1854, be inserted in the ship's articles, the form of which is to be sanctioned by the Board of Trade. Ibid. (351) The emigration officer will enforce the requisite issues, before two o'clock on the day of embarkation, to such passengers as may then be on board, and he will warn masters that they will render themselves liable to heavy penalties, and entail on their sureties in the bond to the crown, a forfeiture of the bond, if the issues are not in like manner continued daily throughout the voy- age, and if the articles which require cooking are issued in an uncooked state. Ibid. No. 79. (352) There is no offence against the act 1302 OWNERS. Pt. IV. Passenger Ships. Held, that this, in connexion ■with, a covenant to promote the comfort and con- venience of the hirer and his passengers, fairly imported that there should be some demand or request by the hirer for the clearing of the space agreed on. Corbin V. Leader, 6 0. & P. 32. 1035. A covenant to keep up a supply of the necessary and usual quantity of water is not broken by a deficiency for a short time occasioned by the unusual length of the voyage. Ibid. 1036. In an action against a captain for not furnishing good and fresh provi- sions to a passenger on a voyage, the jury must be satisfied that there was a real grievance sustained by the plaintiff, and there is no right of action unless he has really been a sufferer ; for it is not because a man does not get such a good dinner as he might have had that he is therefore to have a right of action against the captain who does not provide all that he ought. Young v. Fewson, 8 0. & P. 55. which will be more rigorously prosecuted whenever it can be proved. Board of Trade Mem. on Pass. Act, 1880, p. 40, No. 79. (353) The officer will cause a printed notice to this effect to be kept posted up in places where it would be likely to meet the atten- tion of parties concerned in the passenger trade. Ibid. (354) A form of such notice is given in the Appendix. Ibid. (355) In the case of ships not laying in water for the full voyage, but touching at an intermediate port to fill up, the emigration officer is empowered by sect. 34 to declare the length of voyage to and from the intermediate ports. Ibid. p. 37, No. 73. (356) By Order in Council, dated 28th June, 1875, "passenger" vessels may clear with only half the quantity of water required by the Passengers Acts, provided they carry an efficient distilling apparatus. See Appendix 39. At some of the ports the inspection of water is made by the medical inspectors. Ibid. p. 40, n. _ (357) The emigration officer will be par- ticular to see that when water casks are used, they are properly charred inside, are sweet, tight, and. of sufficient strength, and that they are not of greater capacity than 300 gallons. Ibid. pp. 40, 41, No. 80. (358) The law requires that the staves should not be of fir, pine, or soft wood, but is silent as regards the heads. Ibid. p. 41 , No. 80. (359) The emigration officer will be at liberty, therefore, to pass casks of which the staves are made of hard wood, and the heads of yellow pine, pitch pine, or oak ; if of pine, the sap-wood should be taken off, and oak cantles be used. Ibid. (360) A scale for casks is placed in the Ap- pendix for the guidance of the emigration officers. Ibid. No. 81. (361) The mode of examining the water- casks, which should be followed when prac- ticable, is to have the casks ranged on the wharf, and filled with fresh water ; and after they have been inspected and marked by the emigration officer, to have them emptied and stowed away in the vessel and refilled. The commissioners are aware that this method is not practicable at all ports, and the emigra- tion officer must be left to adopt the best means that the circumstances at his station will allow for ensuring an efficient test as to the sweetness, tightness, and strength of the casks. Cases of fraud have been alleged where, after the water -casks have been passed, some of them have been withdrawn. The emigration officer will, therefore, take measures for assuring himself that all the casks he may have passed are duly shipped and filled with the proper quantity of good water. Ibid. No. 82. (362) Nothing can be more important for the health and comfort of emigrants than that the water should be pure, sweet, and likely to keep well. It will be incumbent, therefore, on the emigration officer to pay particular attention to this point, and to in- sist on the supply being obtained from the best sources within reach. When it can be obtained only from a tidal river, it should not be taken before the last quarter ebb, and should, where means exist for the purpose, be filtered before it is filled in. Ibid. No. 83. (363) The water required for cooking the provisions of the passengers is not to be de- ducted from the daily issue to them of three quarts per statute adult. To provide, how- ever, for cooking purposes, the 31st section enacts " that an additional supply of water shall be shipped after the rate of at least ten gallons for every day of the prescribed length of voyage, for every 100 statute adults on board;" and the emigration officer should see that this additional quantity is accordingly supplied. Ibid. p. 42, No. 84. (364) Besides the water for the passengers and for cooking purposes, the law requires an additional quantity to be shipped for the crew and (under the expression " all other persons on board") cabin passengers. But it does not define, as in the case of ordinary passages, what that quantity should be. It, however, expressly requires that the ' ' supply" should be " ample." The emigration officer must therefore ascertain that an "ample supply " of pure water is shipped for the use of the crew and all other persons on board, as well as for the ordinary passengers, and in determining the quantity he must be guided by the usage of the port and his own judgment. Ibid. No. 85. OWNERS. Pt. IV. Passenger Ships. 1303 1037. For enactments as to the quantity and quality of provisions and water on board "passenger ships," and that those for the crew shall not be inferior in quality to those for the passengers, and for the stowage thereof ; and penalty if a clearance is obtained for any " passenger ship " not so provided, against the owner, charterer, or master not exceeding £300, see the Passengers Act, 1855 (c. 119), s. 31, and the M. 8. Act, 1876 (c. 80), s. 20. 1038. As to the stowage of provisions and water, see c. 31, s. 2, p. 1298. 1039. Her Majesty, by Order in Coun- cil, may prescribe rules and regulations as to passenger ships proceeding from the United Kingdom to any place in her Majesty's possessions abroad. See the Passengers Act, 1855 (c. 119), s. 59. 1040. As to such Orders in Council generally, and the alteration and proof thereof, see this Part, c. 7, p. 1279. 1041. For permitting the use on board of an apparatus for distilling water, and for defining in such case the quantity of fresh water to be carried for the pas- sengers, see the Passengers Act, 1855 (c. 119), s. 59, and Order in Council of 28th June, 1875, set out in 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 64. 1042. Every foreign shipcarrying goods or passengers between ports of the United Kingdom, or between ports of Guernsey, Jersey, Alderney, Sark, or Man, or any of them and the United Kingdom, is subject, as to stores and otherwise, to the same laws, rules, and regulations to which British ships so employed are sub- ject. See 17 Vict. c. 5, s. 2 ; the Customs Consolidation Act, 1876 (c. 36), s. 141. 1043. For enactments as to " passenger ships" enabling the emigration officer to reject and mark as bad any provi- sions, stores, or water not of a good and wholesome quality, and to direct the same to be landed, and against re-ship- ping the same in that or any other pas- senger ship, and penaltyfor breach against, owner, charterer, or master, or person re- shipping them not exceeding £100, see the Passengers Act, 1855 (c. 119), s. 32. 1044. For provisions as to the carriage of water in passenger ships in proper tanks or casks approved by the emigra- tion officer, and penalty for breach against owner, charterer, or master, not exceed-, ing £50, Ibid. s. 33. 1045. For provisions as to passenger ships intended to touch at intermediate ports to fill up water, as to the engage- ment to that effect to be inserted in the bond to the crown in such cases, as to the emigration officer's certificate of approval thereof, to be obtained, carried, and de- livered up as therein mentioned, and as to the supply of water to be taken on board at the port of clearance in such circumstances, Ibid. s. 34. 1046. For enactments as to the dietary scales of provisions and water for pas- senger ships exclusive of the water for cooking, according to the length of the voyage, and as to the substitutions of some of such articles for others at the option of the master, provided the sub- stituted articles are set forth in the con- tract tickets of the passengers, and penalty for breach against the master not exceed- ing £50, Ibid. s. 35. 1047. For similar provisions under similar penalty against the master as to passengers coming in passenger ships into the United Kingdom from any place out of Europe, Ibid. s. 102. 1048. For provisions on board pas- senger ships as to messes, the arrange- ment thereof, and the time of issuing provisions to head messmen, and the issue in a cooked state of those requiring tobe cooked, andpenaltyfor breach against master not exceeding £50, Ibid. s. 36. 1049. For enactments enabling the Board of Trade by notice in the London Gazette to authorize the issue of provi- sions in any passenger ship, according to any other dietary scale containing an equivalent amount of nutriment ; and for the issue of provisions to passengers according to either scale set forth in the contract tickets of the passengers, Ibid. s. 37, as amended by the M. S. Act, 1872 (c. 73), s. 5, and note 335, supra. 1050. For provisions as to passenger ships, in case of detention after clearance, or putting back into any port in the United Kingdom, taking on board such further supply of provisions, water, and medical stores as are necessary to make up the prescribed quantities, see the Passengers Act, 1855 (c. 119), s. 50. 1051. As to complaints by seamen of British ships of bad or deficient provisions or water, the proceedings thereon, and the penalty for the same, see tit. Seamen, Pt. IV. 1052. As to prohibition of the reduc- tion in the allowance to any seaman of the provisions stipulated for, except by way of punishment, and under the con- ditions prescribed and the compensation for the same, Ibid. 130* OWNERS. Pt. IV. Passenger Ships. 1053. For provisions enabling gover- nors of colonies by proclamation to de- clare what shall be deemed for the pur- pose of this act the scale of diet, and enabling such proclamations to be re- ceived as evidence, see the Passengers Act, 1855 (c. 119), s. 97. 2. Lime Juice. 1054. As to the quantity of lime juice to be issued on board " passenger ships " according to the length of the voyage and the locality, and during portions of the voyage, at the discretion of the medical practitioner, or, in his absence, of the master, see the Passengers Act, 1855 (c. 119), s. 35, andilbid. 1863 (c. 51), s. 9. 1055. For regulations as to the pro- viding of lime juice or such other anti- scorbutics as her Majesty may, by Order in Council, from time to time direct, for the certificate of the Board of Trade that it has been obtained from a proper source, for its mode of carriage, and for the times at which the master is to serve out such lime juice or anti-scorbutics, see the M. S. Act, 1867 (c. 124), s. 4. 3. Soft Bread. 1056. As to the issue onboard "pas- senger ships" in addition to the substitu- tions in the dietary scales therein specified of soft bread, baked at the option of the master, in lieu of other articles and in cer- tain proportions, see the Passengers Act, 1855 (c. 119), s. 35, and Ibid. 1863 (c. 51), s. 10. 36. Computation of Lengths of Voyages. 1057. Por the scales for computation of the lengths of voyages for the purposes of this act, of " passenger ships " proceed- ing from the United Kingdom to the places therein mentioned, see the Pas- sengers Act, 1855 (c. 119), s. 30; see also notes 342—344, p. 1301. 1058. Por provisions enabling the Board of Trade to fix different scales of length of voyage, seePassengers Act, 1855 (c. 119), s. 30, as amended by M. 8. Act, 1872 (c. 73), s. 5. 1059. Por provisions enabling governors of colonies by proclamation to declare what shall be deemed for the purpose of this act the length of time for voyages, and enabling such proclamations to be received as evidence, see the Passengers Act, 1855 (c. 119), s. 97. 37. Passengers Lists. 1. Outward-bound Ships. - (a) Generally.* 1060. The master of every ship, whether a " passenger ship " or otherwise, carry- ing passengers on any voyage to which this act extends, shall, before demanding a clearance, sign two lists, in the form in Schedule (B), setting forth the name and other particulars of the ship, and of every passenger on board, including cabin passengers, and specifying whether such cabin passengers are under or over twelve years, and at what place the passengers and cabin passengers are to be landed. These lists, when countersigned by the emigration officer, where there is one at the port, shall be delivered by the master to the officer of the customs from whom a clearance of the ship is demanded, who shall thereupon countersign and re- turn to the master one of such lists, to be called " the master's list." See Passen- gers Act, 1855 (c. 119), s. 16, as amended by the Passengers Act, 1863 (c. 51), s. 6. 1061. Penalty for breach against mas- ter not exceeding £100 nor less tban £5. See Passengers Act, 1855 (e. 119), s. 16. 1062. If after such lists have been signed and delivered any additional pas- senger is taken on board, the master shall, according to the same form, add to "the master's list " the names and other particulars of every such additional pas- senger or cabin passenger, and sign a separate list, made out according to the same form, containing the names and other particulars of every such additional pas- senger, and Buch last-mentioned list, when countersigned by the emigration officer, where there is one at the port, shall, with " the master's list" to which such addi- tion shall have been made, be delivered to the chief officer of customs, and there- upon such officer shall countersign "the master's list," and return the same to the master, and retain the separate list, and * (365) The lists furnished to the officers of customs must include cabin passengers, who are entitled to a return of half their passage money if prevented by an emigra- tion officer from undertaking their voyage on account of sickness. See Board of Trade Mem. on Passenger Act, 1880, p. 5, No. 3. 1 OWNERS. Pt. IV. Passenger Ships. 1305 so on in like manner whenever any addi- tional passenger is taken on board. If no officer of customs shall be stationed at the place where such additional passenger is taken on board, the lists shall be deli- vered to the officer of customs at the next Elace at which the vessel shall touch, to e so dealt with: when any additional passengers are taken on board the master shall obtain a fresh certificate from the emigration officer of the port that all the requirements of this act have been com- plied with before the ship shall proceed to sea. Penalty for breach of any of these requirements against the master not exceeding £50 nor less than £5. Ibid. s. 17. (b) Delivery. 1063. See Nos. 1060—1062. (c) Production. 1064. For provisions requiring the master of any "passenger ship " on put- ting into or touching at any port or place in the United Kingdom to produce to the emigration officer or officer of customs there, his " master's list " of passengers, and penalty for breach against master not exceeding £20 nor [less than £2, see Passengers Act, 1855 (c. 119), s. 50. 2. Homeward-bound Ships. (a) Generally. 1065. The master of every ship bring- ing passengers into the United Kingdom from any place out of Europe, and not within the Mediterranean Sea, shall, within twenty-four hours after arrival, deliver to the emigration officer or his assistant, or in their absence to the chief officer of customs at the port of arrival, a correct list, signed by the master, and specifying the names, ages, and callings of all the passengers embarked, and the ports at which they embarked, and show- ing which, if any, died, and the supposed cause of death, and which, if any, were born on the voyage. Penalty for breach against the master not exceeding £50. Ibid. s. 100. (b) Delivery. See No. 1065. 38. Trustees of Docks or Basins. 1. Byelaws. (a) Generally. 1066. Trustees or others charged with the management of any docks or basins in the United Kingdom from which "pas- senger ships" are despatched, may make and alter byelaws for prescribing the docks, basins, or other places at which emigrants shall be landed and embarked, and the mode thereof, for licensing por- ters to carry their luggage and otherwise to attend upon them, for the storing and safe custody of their luggage, for admit- ting persons to, and excluding persons from, such docks or basins. Ibid. s. 82. 1067. No such byelaws take effect until approved by one of the secretaries of state, and published in the London Ga- zette, which is to be conclusive evidence thereof. Ibid. 1067a. Por provisions for passenger steamers to have their scuttles, hatch- ways, and other openings properly closed, or sufficiently railed, and the paddle-box fenders properly secured, see the Tyne Bye-laws, sanctioned 9th May, 1868,cl.41. 10675. For provisions in regard to the embarkation and disembarkation of pas- sengers, ibid. els. 43 — 47. (b) Enforcement. 1068. Such trustees may, in such bye- laws, attach a penalty not exceeding £5 for any breach thereof, to be recovered as other penalties under this act, except that instead of an emigration officer the trustees or others may recover the same. See the Passengers Act, 1855 (c. 119), s. 82. 1069. Such trustees, by their officers or servants, or by any police officer, may arrest and detain any person charged with the breach of any such byelaw until brought before a justice of the peace, who is hereby authorized to adjudicate on the offence in a summary way. Ibid. 39. Regulations for Order, Health and Cleanliness. 1070. Her Majesty, by Order in Coun- cil, may prescribe rules and regulations for passenger ships proceeding from the United Kingdom to any place in her Ma- jesty's possessions abroad, for preserving order, health, and cleanliness. And as to the proof of such Orders in Council, see the Passengers Act, 1855 (c. 119), s. 59. 4p 1306 OWNERS. Pt. IV. Passenger Ships. 1071. As to such Orders in Council generally, and the alteration and proof thereof, see this Part, c. 7, p. 1279. 40. Regulations for preventing Spread of Disease. 1072. For provisions for preserving order, promqting health and securing health and ventilation on board passen- ger ships, and revoking the Order in Council of February 25, 1836, see Order in Council of January 7, 1864, in 13 Hertslet, p. 1065. 1073. For provisions prohibiting emi- gration from any port or ports at anytime when choleraic or any epidemic disease may be generally prevalent in the United Kingdom or any part thereof, see Pas- sengers Act, 1855 (c. 119), s. 59. 1074. Her Majesty, by Order in Coun- cil, may prescribe rules and regulations as io -passenger ships proceeding from the United Kingdom to any place in her Majesty's possessions abroad. Ibid. s. 50. 1075. As to such Orders in Council generally, and the alteration and proof thereof, see this Part, c. 7, p. 1279. 41. Quarantine.* 1076. The several laws relating to the performance of quarantine are repealed, and other provisions made in lieu thereof. See 6 Geo. 4, c. 78, and 2 Maude & Pol- lock (4th ed. by Pollock & Bruce), p. 87, note. 1077. As to the performance of quaran- tine by all vessels coming from the Medi- terranean, or West Coast of Barbary on the Atlantic Ocean with or without clean bills of health, see Order in Council of 19th July, 1825, in 2 Maude & Pollock, ibid. p. 84. 1078. From the 1st February, 1877, no person on board any ship coming to any port in the United Kingdom, the Channel * (366) The only quarantine establishment now maintained in England is at the Mother- bank, and vessels other than Queen's ships perform quarantine when so necessary in such -places as may be directed by the Privy Council. See 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 85, note. t (367) The words "passenger" and "per- t Islands, or the Isle of Man, from Cuba or any port or place between longitude 35 and 60 degrees west of Greenwich, and between 4 and 40 degrees south latitude, shall quit such vessel before its state of health shall be ascertained on examina- tion by the proper officer of customs, and permission given by him to land. See Order in Council of 29th January, 1877, 2 Maude & Pollock, ibid. p. 87. ' 1079. The signal to be hoisted by vessels having cholera on board is a yellow flag. See Order in Council of 15th March, 1832, in 2 Maude & Pollock, ibid. 1080. As to the temporary performance of quarantine by vessels coming from the Black Sea, Baltic, or Sea of Marmora, see Order in Council of 22nd March, 1879, in 2 Maude & Pollock, ibid. 1 8 1 . For provisions constituting Kings- town Harbour, in the Bay of Dublin, a quarantine station in lieu of Poolbeg, see Order in Council of 19th April, 1837. 1082. For regulations for carrying into effect the Act of 6 Geo. 4, c. 77, appoint- ing quarantine stations for England, Scotland, and Ireland, see Order in Coun- cil of 19th July, 1825. 1083. For provisions as to the perform- ance of quarantine at Milf ord Haven, and the restrictions imposed for that purpose, see Order in Council of 30th September, 1825. 1084. For provisions altering the qua- rantine stations in Scotland (as established by Order in Council of 19th July, 1825), see Ibid. 1085. For provisions altering the qua- rantine stations in Ireland (as established by Order in Council of 19th July, 1825), see Order in Council of 1st September, 1826. 42. Passengers. 1 . Generally. f 1086. Nothing in this act shall take away or abridge any right of action which may accrue to any passenger in sons " are used throughout the act in their ordinary significations of individuals, as contradistinguished from "statute adults." Board of Trade Mem. on Pass. Act, 1880, p. 7, No. 5. (368) The acts do not apply to "cabin pas- sages,' or " cabin passengers," unless they are expressly named, as the latter are, in OWNERS. Pt. IV. Passenger Ships. 1307 any ship, or other person, in respect of the breach or non-performance of any contract made between or on behalf of any such passenger or person, and the master, charterer, or owner of any such ship, his agent, or passage broker. See the Passengers Act, 1855 (c. 119), s. 58. 1087. In this act " statute adult" sig- nifies a person of the age of twelve years or upwards, or two persons between the ages of one and twelve. " Passengers" include all passengers except cabin pas- sengers, and except labourers under in- denture to the Hudson's Bay Company, and their families conveyed in ships be- longing to or chartered by that company. " Passage" includes all passages except 1 cabin passages. Ibid. s. 3. ( 1088. No persons shall be deemed "cabin passengers" unless the spaces allotted to their exclusive use are in the proportion of at least thirty-six clear superficial feet to each statute adult, nor unless they are messed throughout the voyage at the same table with the master or chief officer, and their fare is in the proportion of at least 30s. for every week of the length of the voyage as computed under this act for sailing vessels pro- ceeding from the United Kingdom to any place south of the Equator, and of 20*. for such vessels proceeding to any place north of the Equator, nor unless they are furnished with a duly-signed contract ticket in the form in Schedule (K). Ibid. 1089. Words of one number or gender import both numbers and all genders. Ibid. 2. Number.* 1090. Eor the rules for determining the number of passengers to be carried in sects. 3, 13, 41, 52, 53, 54, 71, 72, 73 and 74 of the Act of 1855, and in sects. 4, 6, 11 and 15 of the Act of 1863 ; or are included under the general term "persons," as they are in sects. 27, 31, 45, 58 and 62 of the Act of 1855. Ibid. p. 9, No. 14. (369) Cabin passengers are also brought under the operation of the 16th and 17th sects, of that act by the 6th and 11th sects. of the Act of 1863, and are, in strictness, subject to a muster by the emigration officer, to verify that they are in reality cabin pas- sengers, though it will not be desirable to insist unnecessarily or vexatiously on this liability. Ibid. (370) Except for the purposes of sect. 3 of the Act of 1855 (the definition clause), cabin passengers are to be counted as individuals, and not as statute adults. Ibid. p. 10, No. 15. (371) To constitute a cabin passenger four requisites must be combined — 1st, that each statute adult be allowed a space of not less than thirty-six clear square feet (not in the berthing place alone), for his exclusive use ; 2nd, that he be messed at the table with the master or the first officer ; 3rd, that the fare contracted to be paid be not less than at the rate of 30s. for each week of the prescribed length of the voyage for sailing, vessels bound to places south of the Equator, and 20urisdiction of the conservators. Ibid. par. 49. (442) Appendix (A) to the Circular No. 100 contains the order of the secretary of state made under the Explosives Act, 1875. The order contains instructions as to the mode of packing the various classes of explosives enumerated in the Order in Council of 5th Aug. 1875. (443) Surveyors, before granting clearances for emigrant ships or declarations for pas- senger steamers, should, in all cases, see that a separate, detached and completely-enclosed receptacle is provided for each of the follow- ing descriptions of explosives: — (1) Gun- powder and cannon cartridges made with gunpowder ; (2) rockets ; (3) rocket signals ; (4) blue lights ; (5) Holmes' lights. These separate receptacles should not be made merely by divisions or partitions in a cup- board or locker or chest, but must be sepa- rate magazines exclusively appropriated to the keeping of the explosives. They should,, where possible, be kept, in a house on deck. No article of an explosive or inflammable character shall be carried in any room or place in which any receptacle containing explosives is deposited. The attention of masters of vessels should be called to this instruction. See Board of Trade Instruc- tions to Surveyors, Stowage of Signals of Distress, Dec. 1884, M. 18,055—1884. * (444) It has been ruled by the Board of Trade that bleaching powder comes within the definition of dangerous goods, under s. 23 of the M. S. Act, 1873. Note to Board of Trade Instructions to Principal Officers, Cir- cular No. 100—867—36, dated Feb. 1877. 1334 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. ralty jurisdiction may declare the goods, and the package containing them, for- feited, and when forfeited' they shall he disposed of as the court directs. See M. S. Act, 1873 (c. 85), s, 27". (h) Jurisdiction. 1309. See No. 1308, supra. 1310. The court may exercise these powers notwithstanding the owner has not committed any offence under the pro- visions of this act, and is not before the court, and has not notice of the proceed- ings, and notwithstanding there is no evidence to show to whom the goods "belong. The court may, in its discretion, require such notice as it may direct to be given to the owner or shipper of the goods before the same are forfeited. Ibid. 6. In Passenger Ships. 1311. See Pt. IV. c. 31, p. 1297. 7. In the Thames. 1312. As to the bye-laws for the regu- lation of the carriage of explosive sub- stances on the river Thames and its tri- butaries, made under the authority of the Explosives Act, 1875(c. 17), seethe Thames Conservancy Bye-laws of the 24th January and 20th November, 1876, sanctioned by the Board of Trade 26th January and 22nd November, 1876. See for these Bye-laws, 2 Maude & Poll. (4th ed. by Poll. & Bruce), pp. ccccliv — cccclx, and the Bye-laws of the 22nd October, 1880, and 7th November, 1881. 8. In the Mersey. 1313. Eor provisions in regard to gun- * (445) It would seem that this exemption is confined to British ships, the provisions of the M. S. Act Amendment Act, 1862 (c. 63), ss. 54 — 64, not being applicable thereto. (446) The former statutes on this head are 7 Geo. 2, c. 15; 26 Geo. 3, c. 86; 53 Geo. 3, c. 159. They are repealed by the M. S. Eepeal Act, 1854 (p. 120). (447) See also the exemption from respon- sibility in case of fire usually inserted in bills of lading. (448) The immunity from loss by fire does not protect against losses arising from a fire on board a lighter engaged in transporting cargo from a vessel, which would itself be within the Btatute. Mayne on Damages (4th ed.), p. 291. (449) The 26 Geo. 3, c. 86, s. 2 (now re- pealed), which exempted shipowners from powder and other dangerous goods in the Mersey, see the Mersey Dock Acts Con- solidation Act, 1858, c. 92, (L. & P.) sects. 215 to 220, and the Bye-laws made there- under. 1314. For provisions as to the convey- ance, loading, and unloading of explosive substances, see bye-laws of the Mersey Docks and Harbour Board made under the Explosives Act, 1875, c. 17, and ap- proved by the Board of Trade 12th and 26th July, 1877, and 10th May, 1878. 1315. For provisions as to petroleum made under the Petroleum Act, 1871, see bye-laws of the Mersey Docks and Har- bour Board, approved by the Board of Trade the 19th June, 1878, and resolu- tions of the Mersey Board of the 3rd October, 1878. 5. Service of Documents. 1316. See Pt. TJ. Nos. 650—653, p. 1253. Part VI -EXEMPTIONS FROM AND LIMITATION OF LIABILITY OF SHIPOWNERS. 1. Exemptions. 1. Fire* 1317. No owner of any seagoing ship or share therein shall be liable to make good any loss or damage happening with- out his actual fault or privity to any goods, merchandise, or other things on board any ship, by reason of fire happening on liability for loss or damage to goods on board ship by fire, did not apply to goods on board a lighter employed in carrying goods from, the shore to be loaded on board ship. More- wood v. Polloh, 1 El. & Bl. 743; 17 Jur. 881; 22 L. J. Q. B. 250 ; 21 L. T. 87. See also Hunter v. McGowan, 1 Bligh, 573. (450) When a loss by embezzlement, col- lision, or otherwise is suffered by several freighters, and the value of the vessel and freight is not sufficient to satisfy all claims, a general average contribution is to be made. See Eevised Statutes of TJ. S. s. 4284. [Ameeicak.] (451) It is a sufficient compliance with this provision if the owner transfers his in- terest to a trustee appointed by a compe* tent court for the benefit of the claimants Ibid. s. 4285. - OWNERS. Pt. VI. Exemptions, &c. of Shipowners. 1335 board. See M. S. Act, 1854 (c. 104), s. 503. 1318. A carrier by sea under a bill of lading of goods " to be delivered in the like good order, &c, at the port of, &c., unto A. or his assigns, on paying for the goods, freight, and charges, as per margin, with primage and average accustomed," is not entitled, immediately on the arrival of the vessel, and without notice to the owner, to land the goods. Bourne v. Gatliff (in error), 11 CI. & Fin. 45; 8 Scott, N. E. 604 ; 7 M. & G. 850. 1319. If he should land them, and they should be destroyed by fire, he will be answerable to 1he owner for the loss. Ibid. 1320. Carriers for hire of goods in Scotland are liable for losses from acci- dental fire. See Mercantile Law Amend- ment Act (Scotland), 1856 (c. 60), s. 17. 2. Robbery or Embezzlement of Gold, Silver or Jewels. 1321. No owner of any seagoing ship or share therein shall be liable to make good any loss or damage happening with- out his actual fault or privity to any gold, silver, diamonds, watches, jewels, or pre- cious stones on board any such ship, by reason of any robbery, embezzlement, making away with or secreting of them, unless the owner or shipper has, at the time of shipping them, inserted in his bills of lading or otherwise declared in writing to the master or owner of the ship the true nature and value of such articles. See M. S. Act, 1854 (c. 104), s. 503. 1322. The exceptions "act of God, Queen's enemies, pirates, robbers, fire, accidents from machinery, boilers and steam, the dangers of the seas, roads and rivers, of what nature and kind soever excepted," do not include, where the carriage is partly by land and partly by sea, theft. De Rothschild v. Royal Mail Steam Packet Co., 21 L. J. Exch. 273 ; 7 Exch. 734. 1323. The word "robbers" implies vio- lence, and "dangers of roads means danger caused directly by the bad con- dition of roads. Ibid. 1324. The word "thieves," when amongst the excepted perils of a bill of lading, applies, as in policies of insurance, to thieves outside the vessel, and not to passengers or the crew. Taylor v. Liver- pool and Great Western Rail. Co., L. E. 9 Q. B. 546 : 43 L. J. Q. B. 205 ; 2 Asp. N.S. 275. 1325. "Where goods have been stolen on board it lies upon the shipowner to prove that the loss comes within the exception. Ibid. 1326. A bill of lading contained the exception "the shipowner is not to be liable for any damage to any goods capable of being covered by insurance." Held, that the word damage did not apply to the entire abstraction of the goods. Ibid. 1327. The master of a general ship, on board of which goods have been laden in the Thames for a foreign port, is liable for the loss of the goods occasioned by a forcible robbery while the ship is lying in the river. Barclay v. Y' Gana, 3 Dougl. 389. 1328. Eobbery by strangers in concert with one of the crew, held within the pro- visions of 7 Geo. 2, c. 15, now repealed. Sutton v. Mitchell, 1 T. E. 18. 1329. The "nature and value" held (under the Merchant Shipping Act, 1854) not sufficiently declared by the descrip- tion, "one box containing about 244 ounces of gold dust." Williams v. The African Steam Ship Co., 1 H. & N. 300 ; 2 Jur. N.S. 693 ; 26 L. J. 69. 1330. Nor (under 26 Geo. 3, c. 86, now repealed) by the description "1338 hard dollars." Gibbs v. Potter, 10 M. & W. 70. 1331. Quare, would the 26 Geo. 3, c. 86, apply to a shipment at a foreign port not made for a port of this country? Ibid. 1332. As to what is sufficient notice of special terms limiting the common law liability of carriers, see Stevenson v. Hen- derson, Casae in the Court of Session, 4th series, vol. 1, p. 215 ; ibid. vol. 2 (H. L.), p. 71. [Scotch.] 3. Barratry. 1333. See tit. Marine Insurance, p. 1038. 4. Acts of Harbour Masters. 1334. As to exemptions from liability in respect of acts of harbour masters under their local acts and generally, see tit. Owners, Pt. n. c. 6, p. 1233. 5. Compulsory Pilotage. 1335. As to exemptions from liability for acts of pilot taken by compulsion of law, see Ibid. Pt. VII. p. 1349. 1336 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. 2. Limitation under Merchant Shipping Acts. 1. Generally.* 1336. The ninth part of this act (as to the liability of shipowners) applies to the whole of her Majesty's dominions. See the M. S. Act, 1854 (c. 104), s. 502. 1337. The owners of any ship, whether British or foreign, shall not, in 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 personal 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 any 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 what- soever on board any other ship or boat; be answerable in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, merchandise, or other things, to an aggregate amount exceed- ing 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 addi- tion loss of life or personal injury or not, to an aggregate amount exceeding eight pounds for each ton of the ship's ton- nage ; such tonnage to be the registered tonnage in the case of sailing ships, and in the case of steam ships the gross ton- nage without deduction on account of engine room, M. S. Act Amendment Act, 1862 (c. 63), s. 54/f * (452) At common law (independently of statute law) owners are answerable for damage occasioned by the negligence of the master or crew in the course of their lawful employment, to the full extent of the injury sustained in ship, goods or person ; and if the injured person die by the accident, his family and relations are entitled by statute (9 & 10 Vict. c. 93) to maintain an action for the loss suffered by them in consequence. Maclachlan on Merchant Shipping, 3rd ed. p. 117. (453) In cases of collision the ancient general maritime law enacted a full compen- sation out of all the property of the owners of the guilty ship, upon the dommon prin- ciple, applying to persons undertaking the conveyance of goods, that they were answer- able for the conduct of the persons whom they employed, and of whom the other par- ties, who suffered damage, knew nothing, and over whom they had no control. The Dundee, 1 Hagg. 109; The Girolamo, 3 Hagg. 186 ; The Clara, 2 Jur. N.S. 46 ; Swabey, 1 ; 26 L. T. 165 ; The Wild Banger, 7 L. T. N.S. 725 ; 32 L. J. Adm. 56 ; 1 N. E. 32 ; U W. E. 255. (454) But Holland first introduced a limi- tation of the responsibility of owners to the value of the property of their own which they placed at hazard. England followed in suc- cessive statutes, and by the 53 Geo. 3, c. 159, subjected the ship, tackle, apparel and furni- ture, and its appurtenances and freight, to contribution in cases of collision. The Dundee, lHagg. 109. (45oJ As to similar provisions of European codes tor the limitation of owners' responsi- bility to the value of the ship, or their shares therein, see The Consolato del Mare, the Hanseatic, French, Rotterdam and Ham- burgh Ordinances, cited in Maclachlan on Merchant Shipping, 3rd ed. p. 118. (456) By these ordinances, the surrender of ship and freight enures to the relief of the owner from all liabilities in respect thereof. The French law of 14th June, 1841, is par- ticularly explicit in this respect. IMd. pp. 119, 120. (457) By the American Act of 3rd March, 1851 (c. 43), ss. 3 and 4 of 9 Statutes at Large, 635, the liability of the shipowner for loss 'of damage occasioned by collision, &c, "with- out the privity or knowledge of suoh owner," is limited to " the amount or value of the in- terest of such owner in such ship or vessel, and her freight then pending." The lan- guage of this act, and of the English Act of 53 Geo. 3, c. 159, seems to be essentially equivalent in import. 1 Oonkling's Adm. Prac. (2nd ed.) pp. 245, 372. [AMERICAN.] (458) By the general maritime law of Europe the liability of the owners for the master's obligations ex delicto is limited to the amount of their interest in the ship and cargo, and by abandoning these they are discharged from all personal responsibility. Stinson v. Wyman, Daveis, 172. [American 1 .] (459) By the laws of Spain and of Massa- chusetts, the liability of the owners for the acts of the master is limited to the value of the vessel and her freight. Pope v. Mckerson, 3 Story, 465. [AMERICAN.] t (460) The description " seagoing " of the ships to which the statutory limitation ap- plied in s. 504 of the M. S. Act, 1854, is OWNERS. Pt. VL Exemptions, Ac. of Shipowners. 1337 1338. Insurances effected against any or all of the events enumerated in the last section, and occurring without such actual fault or privity as therein men- tioned, are not invalid by reason of the nature of the risk. Ibid. s. 55. 1339. If any of the events mentioned in sub-ss. 1, 2, 3 and 4 of s. 54 of the M. S. Act Amendment Act, 1862 (for which see No. 1337, supra), should occur in relation to any passenger ferry steamer of the cor- poration whilst plying to or from "Wood- side and Liverpool during fog, such event shall for the purposes of that section or any other statutory modification thereof for the time being in force, so far only as regards the plying of any such pas- senger ferry steamers during fog be deemed to have occurred without the actual fault or privity of the corporation. See the Birkenhead Corporation Act, 1881 (c. cliii.), s. 231. 1340. If defendants in an action of col- lision desire to claim limitation of liability they must claim it by their pleadings. Walberg v. Young, 45 L. J. 0. L. 783 ; 4 Asp. 27, n ; 24 W. E. 847. 1341. A railway company, carrying passengers and goods partly by railway and partly by their own ships, is entitled to the limitation of liability of shipowners imposed by the M. S. Acts. A railway company, known to be also shipowners, contracted to carry passengers from L. to G. The passengers and goods were taken by rail from L. to S., and were there put on board a ship which belonged to the company. The ship, on her way to GK came into collision with another ship, and sank with several of the passengers and all the goods. Actions were brought against the company by surviving pas- sengers for loss of luggage and delay, by shippers of goods for loss of goods, and by the administrators of lost passengers for damages. Held, on appeal, that as to all the damages, except those as to delay, the liability of the company was, by the M. 8. Acts, limited to the amount of £15 a ton on the tonnage of the ship ; that the amount so payable should be distributed by the Court of Chancery, and that all the actions against the railway company (except those for delay), should be re- strained. L. Sf S. W. R. Co. v. James, L. E. 8 Eq. 241 ; 42 L. J. Ch. App. 337 ; 1 Asp. N.S. 526. 1 342. The limit of liability of the owner "in respect of loss of life or personal in- jury caused by the improper navigation of his ship to persons carried in another ship," extends to the crew of such other ship as well as to other persons carried therein. Gldholm v. Barker, L. E. 2 Eq. 598 ; 1 Ch. 223 ; 1 1 Jur. N.S. 434 ; 43 L. J. Ch. 533 ; 13 W. E. 671 ; 12 L. T. N.S. 317. 1343. Where the owner of a vessel, which has wrongfully occasioned the loss of some of the crew of another vessel, in- stitutes proceedings for limiting his lia- bility, the damages sustained by the families of the deceased seamen are to be ascertained as if the liability were un- limited ; and, if they exceed the statutory liability, then the whole amount of that liability is to be distributed rateably among them. Ibid. 1344. The statutory limit of £30 as the amount of damages payable in re- spect of each family by sect. 510 of the Act of 1854, applies only to damages assessed under inquiries instituted by the Board of Trade. Ibid. ' 1345. Actions at law were brought under Lord Campbell's Act, 1846 (c. 'J 3), against shipowners to obtain compensa- tion for the deaths of certain seamen in a collision. The shipowners filed a bill praying an injunction to restrain the ac- tions and a direction that the amount of their liability might be ascertained. It was contended on behalf of the shipowners that, under the M. S. Acts, 1854 and 1862, they were not liable to any action, or that their liability was limited to £8 per ton. Held, that the actions must be allowed to omitted in s. 54 of the M. S. Act Amendment Act, 1862. The latter act will, therefore, apply to river vessels as well as to seagoing vessels. (461) The benefit of the American Act of 1851 extends to foreigners. Levinson v. Oceanic Steam Nav. Co., 17 Alb. L. J. 285. [American.] (46 lo) Parties to obtain such limitation must take the proceedings provided for by that act for having the amount of their lia- bility determined, or must transfer their in- terest in the vessel and freight, so long as there is anything left to transfer, as required by the act. Dyer v. The National Steamship Co., 4 Asp. 26. [American-.] (462) As to the limitation of liability of the owner for loss by collision or otherwise, to the value of his interest in such vessel and her freight then pending, see Revised Stat. of U. S. s. 4283. [American.] (463) A charterer who mans, victuals, and navigates a vessel at his own expense, is to be deemed the owner for purposes of limiting liability. Ibid. 4286. 4b 1338 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. proceed, and that the liability of the ship- owners was limited to £15 per ton. Gla- holm v. Barker, L. E. 2 Eq. 598 ; 1 Ch. 223 ; 11 Jur. N.S. 434 ; 34 L. J. Ch. 533 ; 13 W. E. 671 ; 12 L. T. N.S. 317 ; 2 Asp. 200 ; Ibid, on appeal, 298 ; 34 Beav. 305. 1 346. The owner of every seagoing ship or share therein is liable in respect of every such loss of life, personal injury, loss or damage to goods on distinct occa- sions to the same extent as if no other loss, injury, or damage had arisen. See the M. S. Act, 1854 (c. 104), s. 506. 1347. The ship E. came into collision with the ship W. D. and then with the A. which was about to take the W. D. in tow. Held, one collision, and that the owners of the E. were not liable beyond £8 per ton of her tonnage. The Rajah, 41 L. J. Adm. 97 ; L. E. 3 A. & B. 539 ; 1 Asp. N.S. 403. 1348. A collision occurred between the vessels E. and G-., through the improper navigation of the Gk The E. was severely damaged by the collision, and shortly afterwards her fore and mainmasts went by the board. The wind also in- creased, and the next day she was driven on shore and several of the crew were lost. Held, in an action for limi- tation of liability by the owners of the G., that the loss of life was the natural and proximate consequence of the colli- sion, and that the owners of the Q-. were liable to the extent of £15 for each ton of the vessel's tonnage. The George and Richard, L. E. 3 A. & E. 466; 1 Asp. N.S. 50. 1349. The words "improper naviga- tion " in the M. S. Act Amendment Act, 1862 (c. 63), s. 54, sub-s. 4, are not to be restricted to the negligent navigation of a vessel by her master and crew, for the statute includes all damage wrongfully done by a ship to another whilst it is being navigated, where the wrongful act is due to the negligence of a person for whom the owner is responsible. Therefore, where a vessel, owing to the negligence of a person on shore in overlooking the ma- chinery, steered so badly that she came into collision with another vessel, held, that her owners were entitled to bring an action for limitation of liability. De- cision affirmed on appeal. The Warh- worth, 9 P. D. 145. 1350. If by reason of the improper navigation of a tug, whilst towing another vessel, damage is done to such other vessel, the owners of the tug are entitled to claim a limitation of their liability, although such damage occurred through a breach of the towing contract. Wah berg v. Young, 45 L. J. C. L. 783; 4 Asp. 127, n. 1351. If the damage resulted from a mere breach of the towing contract, the owners of the tug would not be entitled to claim a limitation of liability. Per Brett, L. J. Ibid. 1352. "Where a tug is employed to tow a ship which is in charge of a pilot by compulsion of law, the exemption from liability given to the owners of the ship for damage arising in consequence of obedience to the pilot's orders by s. 388 of the M. S. Act, 1854 (c. 104), does not extend to the owners of the tug for damage done by the tug, whether from acting in obedience to the pilot's orders or in the absence of any orders. {The Tieonderoga, followed). The Mary, 4 Asp. 183. 1353. The payment of £8 per ton by way of limitation of liability prevents the shipowner from being answerable in damages for a greater amount, but it does not put him into the position of an innocent person. The Ettrick, 6 P. D. 127; 40 L. T. 399; affirming, 50 L. J. P. D..65 ; 44 L. T. 817 ; sub nom. Prehn v. Bailey, 4 Asp. 428 ; Ibid. 465. 1354. The owner of a ship sunk by a collision in the Thames admitted it to be his fault and paid into court £8 per ton to limit his liability. The Thames Con- servancy, having powers under the Ee- moval of Wrecks Act, 1877 (c. 16), and the Thames Conservancy Acts, raised the ship and delivered the ship and cargo to the owner, he undertaking to pay the expenses of raising. Part of the cargo was wool, which was damaged by being sunk. Held, that the shipowner was bound to deliver the wool to the owner of it without claiming from him by way of contribution to salvage any part of the expenses of raising the ship and cargo. Ibid. 1355. A vessel arrested in a cause of damage by collision was released on pay- ment into court of the amount to which, the liability of her owners was limited by statute, and a sum to cover interest and costs. Subsequently her owners insti- tuted a cause of limitation of liability, and moved the court to order that the sum paid in be transferred to the credit of the limitation of liability suit. Held, that it was unnecessary to make such an order. The Sisters, 1 P. D. 281. OWNERS. Pt. VI. Exemptions, &e. of Shipowners. 1339 1356. In any proceeding under the 506th section of the M. S. Act, 1854, against the owner of any ship or share therein in respect of loss of life, the master's list or the duplicate list of pas- sengers delivered to the proper officer of customs under the 16th section of "the Passengers Act, 1855," shall, in the ab- sence of proof to the contrary, be sufficient proof that the persons in respect of whose death any such proceeding is instituted were passengers on board at the time of their deaths. See M. 8. Act Amendment Act, 1862 (c. 63), s. 56. 1356a. As to the limitation of liability under repealed statutes, see c. 3, s. 1, p. 1347. 2. The Crown* 3. Foreign Ships. .f 1357. The limitation of liability granted to British ships by the M. S. Act, 1854 (c. 104), is extended to foreign ships. See M. S. Act Amendment Act, 1862 (c. 63), s. 54. 1358. The benefit of limited liability conferred by the 54th section of the M. S. Act Amendment Act, 1862, can be claimed by any vessel, whether British or foreign, and whether the place of the collision is within or without British jurisdiction. The Amalia, 2 N. E. 462 ; 1 Moore, P. C. 0. N.S. 471 ; 1 Lush. 191 ; Br. & L. P.O. 151 ; 1 Asp. 259 ; 8 L. T. N.S. 805 ; 32 L. J. N.S. Adm. 191 ; 12 W. E. 24 ; 9 Jur. N.S. 1111. See also The Albert, 3 N. E. 217. 1359. The cases suggested in Cope v. Doherty, 4 K. & J. 381, and General Iron Screw Collier Company v. Schurmanns, 1 J. & H. 180, are expressly provided for by this act. Ibid. 1360. As to the calculation of tonnage of foreign ships, see s. 9, p. 1345 ; and Pt. I. c. 3, p. 1188. 1361. As to proceedings for limiting liability of foreign ships, sees. 9, p. 1342. 4. As affected by Bail. 1362. Semble, in cases of collision when the ship is bailed any number of actions may be commenced and prose- cuted in the Court of Admiralty, unless recourse is had to the foregoing provisions for limiting liability. The Clara, Swa- bey, 7; 2 Jur. N.S. 46; 26 L. T. 165. See also The Cumberland, 6 Ir. Jur. N.S. 325 ; 5 L. T. N.S. 496 ; The Tuscarora, 6th Peb. 1858 ; The Wild Ranger, 7 L. T. N.S. 725. 1363. The statutory limitation to the liability of shipowners is not affected by their giving bail in a larger sum than they are liable for under the statute. The Richmond, 3 Hagg. 431 ; The Mel- lona, 3 "W. Eob. 23 ; 6 Notes of Cases, 72 ; The Ditchesse de Brabant, Swabey, 264. 5. Board of Trade Enquiries.% 1364. Whenever any such liability is alleged to have been incurred in respect of loss of life or personal injury, the Board * (464) In an action in which the Lords of the Admiralty sued a shipowner for negli- gence by his servants in the navigation of the ship, whereby the ship and government stores on board were sunk and lost, and judgment was given for the plaintiff, a ques- tion was raised whether the government was bound by the clauses of the M. S. Act Amend- ment Act, 1862, as to the limitation of damage to £ 8 per ton, and the point was reserved. On this point coming on to be argued, the attorney-general stated that their lordships had, after consideration, come to the conclu- sion that it would not be fitting, as they were constantly entering into contracts with ship- owners, that they, as against a party who had enterod into a contract with them, should raise the question whether the crown was bound by the act referred to, which applied to contracts between subjects, and therefore they were content to take a verdict to the extent of £8 per ton in accordance with the act. A verdict was accordingly, by consent, entered for the crown against the shipowner. The Lords of the Admiralty v. Temperley, 21 Jan. 1881. t (465) The repealed statutes were held not to apply to foreign ships ; but these have now the same benefit of limited liability as British ships. See Nos. 1357—1360, supra. (466) For the old cases hereon under the repealed statutes, see The Dundee, 1 Hagg. 113; The Girolamo, 3 Hagg. 187; The Carl Johann, cited therein, ibid.; The Wild Banger, 7 L. T. N.S. 725; 32 L. J. Adm. 56; 1 N. E. 32 ; 9 Jur. N.S. 134 ; 11 W. E. 255 ; General Iron Screw Collier Co. v. Schurmanns, 4 L. T. N.S. 138 ; 29 L. J. Ch. 883 ; 1 Johns. & H. 180 ; 6 Jur. N.S. 883 ; 8W.S. 732 ; Cope v. Doherty, 4 Kay & J. 367 ; 31 L. T. 173, 307 ; 4 Jur. N.S. 451, 699 ; 27 L. J. Ch. 600 ; 2 De G. & J. 614. X (467) It is believed that these sections (507 — 511) have seldom or never been acted upon. See 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. cxlix. note. 4r2 1340 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. of Trade may, after giving not less than three days' notice, hy post or otherwise, to the party to he made defendant or de- fender, by warrant under seal of the Board or signed hy one of its secretaries or assistant-secretaries, require the sheriff having jurisdiction over any place in the United Kingdom to summon a jury at a time and place to he specified in the war- rant for determining the number, names, and descriptions of all persons so killed or injured; and on the receipt of the ■warrant the sheriff shall summon a jury of twenty-four indifferent persons, duly qualified to act as common jurymen in the superior courts, to meet at such time and place. See M. S. Act, 1854 (c. 104), s. 507. 1365. If either party to the inquiry desire such question to be tried before a special jury, it shall be so tried, provided that notice of such desire, if coming from the other party, is given to the Board of Trade before it has issued its warrant to the sheriff ; and for that purpose the Board of Trade shall, by its warrant to the sheriff, require him to nominate a special jury for such trial ; and thereupon the sheriff shall, as soon as conveniently may be after the receipt by him of such, warrant, summon both the parties to ap- pear before him by themselves or their attornies or agents at some convenient time and place appointed by him for the purpose of nominating a special jury; and at the time and place so appointed the sheriff shall proceed to nominate ahd strike a special jury in the manner in which such juries are required by the laws for the time being in force to be nominated or struck by the proper officers of the superior courts; and the sheriff shall appoint a day, and shall on the day so appointed proceed to reduce the special jury to the number of twenty, in the manner used by the proper officers of the superior courts. Ibid. s. 508. 1366. The sheriff shall preside at the inquiry, and the Board of Trade shall be deemed in England and Ireland to be the plaintiff, and in Scotland the pursuer, hereinafter called plaintiff, with power to appoint any agent to act on his behalf, and shall have all such rights and privi- leges as the plaintiff is entitled to in actions at law ; and the owner or owners of the ship or ships by whom such lia- bility is alleged to have been incurred shall be deemed in England and Ireland to be the defendant, and in Scotland the defender, hereinafter called defendant. Ibid. s. 509. 1367. Not less than ten days' notice of the time and place of the inquiry shall be served by the Board of Trade on the de- fendant. Ibid. 1368. Service on the master of any ship shall be deemed good service on the owner thereof, and the master shall, in respect of the proceedings on such in- quiry, be deemed the agent and repre- sentative of the owner, with power to appear for him on such inquiry, and to do all things he might himself have done. Ibid. 1369. If the defendant does not appear on the inquiry, it shall be proceeded with as if he had appeared, on due proof of service of notice on him in pursuance of this act. Ibid. 1370. The empannelling of the jury and the summoning and attendance of witnesses shall be conducted and en- forced in England and Ireland as pro- vided by the Lands Clauses Consolida- tion Act, 1845 (c. 18), in cases of disputed compensation as to land, and in Scot- land as provided by the Lands Clauses Consolidation (Scotland) Act, 1845 (c. 16), in like cases, or as near thereto as cir- cumstances permit ; and all provisions in those acts having reference to cases where any question of disputed compen- sation requires to be determined by the verdict of a jury shall, with the requisite alterations, be considered as incorporated with this act, and to have reference to cases where the question of the liability of any owner in respect of any such acci- dent is required to be determined by the verdict of a jury. Ibid. 1371. In England and Ireland the sheriff shall, if the Board of Trade bo requires, or if the defendant so requires and the Board of Trade consents thereto, appoint as assessor a barrister-at-law of competent knowledge and standing. Ibid. 1372. The costs incurred by all parties in and incidental to any such inquiry shall in England and Ireland be taxed by the master of one of the superior courts of common law as between attor- ney and client, and in Scotland by the auditor of the Court of Session as between agent and client ; and shall, if the verdict in any inquiry is in favour of the plain- tiff, be paid by the defendant, but if in favour of the defendant, be paid by the Board of Trade out of the Mercantile Marine Fund. Ibid. 1373. The payment of all damages and costs in any such inquiry shall, upon ap- plication to such superior court by the OWNERS. Pt. VI. Exemptions, &c. of Shipowners. 1341 party entitled thereto, be enforced by rule or order of such court or judge, or otherwise as he thinks fit. Ibid. 1374. The Board of Trade may make any compromise as to the damages in re- spect of personal injury, or of the death of any person ; and any damages received in pursuance of such compromise shall, so far as they extend, be applied in the same manner, and be subject to the same rules, as if they were damages recovered on an inquiry instituted by the Board of Trade. Ibid. 1375. In any such inquiry the damages payable in each case of death or in- jury shall be assessed at £30. Ibid. s. 510. 1376. The damages found due on any such inquiry shall be the first charge on the aggregate amount for which the owner is liable, and shall be paid there- out in priority to all other claims. Ibid. 1377. All such damages shall be paid to her Majesty's paymaster-general, and be distributed by him in such manner as the Board of Trade directs. Ibid. 1378. In directing such distribution the Board of Trade may first deduct and retain any costs incidental thereto ; and shall then, as regards sums paid in respect of injuries, direct payment to each person injured, of such compensa- tion, not exceeding the statutory amount, as the Board thinks fit. Ibid. 1379. As regards sums paid in re- spect of deaths, the Board of Trade shall direct payment thereof for the benefit of the husband, wife, parent and child of the deceased, or any of them, in such shares, upon such evidence, and in such manner as the Board thinks fit. Ibid. 1380. The Board of Trade shall refund to the owner any surplus remaining under its control after such distribution, and the sum so refunded shall form part of the residue hereinafter mentioned. Ibid. 1381. The Board of Trade shall not, nor shall any person acting under it, be liable to any action, account or demand for or in respect of any act or matter done, or omitted to be done, in the dis- tribution of such damages. Ibid. 1382. If the amount paid to her Ma- jesty's paymaster-general is insufficient to meet the demands upon it, the several claims thereon shall abate proportionally. Ibid. See also No. 1344, p. 1337. 6. Actions after Board of Trade In- quiries. 1383. After the completion of such inquiry, if any person injured, or the ex- ecutor or administrator of any deceased person estimates the damages at a greater sum than such statutory amount — i. e., £30 — or in case of a compromise made by the Board of Trade, at a greater sum than the amount accepted by the Board as compensation for such injury or death, such person shall, on repaying or obtain- ing the repayment by the Board of Trade to the owner of the amount paid by him to the Board of Trade in respect of such injury or death, be at liberty to bring an action for the recovery of damages in the same manner as if no power of instituting an inquiry had hereinbefore been given to the Board of Trade, but any damages recoverable by such person shall be pay- able only out of the residue, if any, of the aggregate amount for which the owner is liable, after deducting all sums paid to her Majesty's paymaster-general ; and if the damages recovered in such action do not exceed double the statutory amount, such person shall pay to the defendant in such action all the costs thereof, to be taxed in England and Ireland as between attorney and client, and in Scotland as between agent and client. See M. S. Act, 1854 (c. 104), s. 511. 7. Notice to Board of Trade before Action. 1384. In cases where loss of life or personal injury has occurred by any acci- dent in respect of which the owner of any such ship is or is alleged to be liable in damages, no person shall be entitled to bring any action, or other legal proceed- ing in the United Kingdom, until the completion of the inquiry (if any) insti- tuted by the Board of Trade, or until the Board of Trade has refused to institute the same ; and the Board of Trade shall, for the purpose of entitling any person to bring an action or institute a suit or other legal proceeding, be deemed to have re- fused to institute such inquiry whenever notice has been served on it by any per- son of his desire to bring such action or other legal proceeding, and no inquiry is instituted by the Board of Trade in re- spect of the subject-matter of such in- tended action or proceeding for one month after service of such notice. Ibid. s. 512. 1342 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. 8. Board of Trade Inquiry after Action brought. 1385. "Whenever the Board of Trade, having so refused to institute any in- quiry, afterwards determines to institute the same, the damages and costs (if any) recovered on such inquiry shall be pay- able rateably with and not in priority to the costs and damages recovered in any other action or legal proceeding. See M. S. Act, 1854 (c. 104), s. 513. 9. Proceedings for limiting Liability. (a) Generally. 1386. In cases where any liability i3 alleged to have been incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats, or goods, and several claims are made or apprehended in respect of such liability, then, subject to the right before given to the Board of Trade of recovering damages in the United Kingdom in re- spect of loss of life or personal injury, in England or Ireland the High Court of Chancery, in Scotland the Court of Ses- sion, and in any British possession any competent court, may entertain proceed- ings at the suit of any owner for the pur- pose of determining the amount of such liability, and for the distribution of such amount rateably amongst the several claimants, with power for any such court to stop all actions and suits pending in any other court in relation to the same subject-matter; and any proceeding en- tertained by such Court of Chancery or Court of Session, or other competent court, may be conducted in such manner and subject to such regulations as to making any persons interested parties to the same, and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner, and as to payment of costs, as the court thinks just. Ibid. s. 514. 1387. The superior courts or any judge thereof may, upon summary application, by rule or order, exercise the like juris- diction. See the Common Law Procedure Act, 1860 (c. 126), s. 35. 1388. When any ship or the proceeds thereof are under arrest of the High Court of Admiralty, that court has the same powers. See the Admiralty Court Act, 1861 (c. 10), s. 13. 1389. Prior to the Judicature Acts cross actions of damage from collision between the ships M. and N, were insti- tuted in the Admiralty Court, and actions at law were commenced against the owners of the N. in respect of damage to goods on board the N. Subsequently an action of limitation of liability was instituted by the owners of -the N. in the Court of Admiralty. Held, that as the court had jurisdiction in the original cause, it had jurisdiction to en- tertain the cause of limitation of liability, and to order all actions pending in any other court to be stopped. The Nor- mandy, L. E. 3 A. & B. 152 ; 39 L. J. Adm. 48 ; 3 Asp. 519. 1390. But held, by the Exchequer Chamber, affirming the judgment of the Court of Exchequer, that the Admiralty Court had no jurisdiction to entertain the suit, inasmuch as neither "the ship" nor "the proceeds thereof" were at the time under arrest. James v. The London and South Western Railway Co., L. E. 7 Ex. 187; L. E. 7 Ex. (Ex. Ch.) 287* 1391. A cause of damage having been instituted against the N., the owners of the N. prevented the arrest of their vessel by giving bail, and instituted a suit for limitation of liability under the 54th sec- tion of the M. S. Act Amendment Act, 1862. Held, that the court had jurisdic- tion under the 13th section of the Admi- ralty Court Act, 1861, to entertain the suit, although the vessel was not actually under arrest of the Court of Admiralty. The Northumbria, L. E. 3 A. & E. 24 ; 39 L. J. Adm. 24 ; 3 Asp. 316. 1392. Prior to the Judicature Acts, the defendants in an action in the Court of Exchequer for damage to cargo by col- lision instituted proceedings in the Admi- ralty Court for a limitation of liability, and obtained an order from the Court of Admiralty staying, amongst other actions, the one in the Exchequer. The Court of Exchequer, however, upon an application by the defendants, refused to stay such action (1) because it was not obliged to stay it under s. 226 of the Common Law Procedure Act, 1852, inasmuch as the Admiralty Court was not a superior court within the meaning of that section ; (2) because there was no reason to induce the court to exercise its discretionary power at common law of staying proceed- ings. Milburn v. The London and South Western Railway Co., L. E. 6 Ex. 4; 40 L. J. Ex. 1 ; 3 Asp. 491* 1393. Although an action in rem against a foreign ship under Lord Campbell's Act (c. 93), s. 2, is not OWNERS. Pt. VI. Exemptions, &c. of Shipowners. 1343 within the jurisdiction of the Admiralty Court Act, 1861 (c. 10), s. 7,. and there- fore the Admiralty Division has not juris- diction over such an action. ( The Fran- conia, 2 P. D. 163, dissented from.) Per Brett, M. P., the Chancery and Admiralty Divisions may entertain such a claim in an action for limitation of liability under their general statutory jurisdiction as to limitation of liability. The Vera Cruz, 9 P. D. 96. 1394. In a suit of limitation of liability instituted on behalf of the owners of a brig -which had negligently run down a bark, thereby causing loss of life of those on board the bark, an appearance was entered on behalf of a child of one of the drowned men en ventre sa mire. The court reserved leave to the child, if born within due time, to prefer its claim for damages sustained by the loss of its father. The George and Richard, 3 Adm. & Ecc. 466. 1395. The statutory provisions limiting liability held applicable, notwithstanding that the adverse claimant had obtained a definitive judgment of the Court of Admiralty condemning the ship. Ley- cester v. Logan, 3 K. & J. 446 ; 26 L. J. Ch. 306 ; The General Iron Screw Steam Company v. Schurmanns, 1 Johns. & H. 180; 4L. T. N.S. 138. 1396. The utmost to which the claimant in such a case is entitled under such a judgment, in respect of the loss he has sustained, is to share rateably with the other claimants in the value of the ship and freight. Leycester v. Logan, supra. 1397. A court of equity has no control over the ship itself, and cannot prevent the party who has obtained such a judg- ment from proceeding to a sale of the ship, and retaining out of the proceeds such costs as he may be entitled to retain under the order of the Admiralty Court. Ibid. 1398. Subject to this, however, the shipowner is entitled to an injunction, under the 51 4th section, restraining the party who has obtained such a judgment from proceeding further in the Court of Admiralty. Ibid. 1399. Inasmuch as the ship was under the sentence of the Admiralty Court, and therefore neither under the control of the plaintiff nor of the Court of Chancery, held, that the plaintiff could not be in- terfered with in his right to sell the ship, but that the Court would interfere by injunction to prevent him from realizing more than his proper share, together with his costs, having regard to apportionment between himself and the other defend- ants. Ibid. 1400. A jury having awarded to the owner of a damaged vessel the statutory amount of £8 per ton of the vessel pro- ceeded against, the defenders applied for a new trial on the ground that they still remained liable to claims from cargo owners. Held, that their remedy was under the M. S. Act, 1854 (c. 104), s. 514, and not by new trial. Flensburg Steam Shipping Company v. Seligman, Cases in the Court of Session, 3rd series, vol. 9, 1011. [Scotch.] 1401. In a cause of damage the de- fendants admitted liability in respect of damage to property and loss of life, but no claim had been asserted in respect of loss of life. On motion by the defen- dants the court ordered all proceedings against the ship to be 6tayed upon the defendants paying £8 per ton into court, and giving bail for the rest up to £15 per ton. The Clutha, 45 L. J. P. D. 108 ; 3 Asp. N.S. 225. 1402. A steamer ran into and sank another vessel belonging to the same owner. The sunken vessel was aban- doned to the underwriters. The owner admitted his liability, and petitioned to have it limited. He also lodged — (1) a claim for loss of freight or cargo in the sunken vessel ; and (2) a claim for cer- tain expenses for the crew of the sunken vessel. Held, that neither claim could be made under the 54th section of the M. S. Act Amendment Act, 1862 (c. 63). Btirrel v. Simpson $■ Co., Cases in the Court of Session, 4th series, vol. 4, 177. [Scotch.] 1403. Sect. 9 of the M. S. Act, 1867 r c. 124 (»". e. as to deduction from regis- tered tonnage of spaces allotted to crew), applies to foreign ships seeking to limit the extent of their liability in an English court. The Franconia, 3 P. D. (C. A.) 164 ; 4 Asp. 1. 1404. "Where owners of cargo have recovered judgment in a collision action brought by them, and the owners of the ship carrying the cargo subsequently bring an action against the same ship to recover damages in respect of the same collision, and the damages in both actions * (468) Since the Judicature Acts, the Admiralty Division being a branch of the High Court, and therefore a superior court, the jurisdiction of the Admiralty Division is re- cognized as the same in this respect as that of the Queen's Bench and Chancery Divisions. 1344 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. ■would exceed the value of the defendants' ship at £8 per ton, and the damage in the cargo action alone would not exceed that amount, the court will not stay pro- ceedings in the cargo's action until after judgment in the ship's action, on the ground that without such stay the de- fendants have to institute a limitation of liability action, which would he unneces- sary if the defendants obtained judgment in the ship's action. The Alne Holme (No. 2), 47 L. T. 309 ; 4 Asp. 593. 1405. A" shipowner paid under an award a sum of money in respect of damage caused to another vessel by collision. Subsequently the owners of cargo on board the damaged vessel having claimed in respect of damage thereto, the shipowner petitioned to have his liability limited under s. 54 of the M. S. Act Amendment Act, 1862 (c. 63). This liability having been ascertained, held, that the amount to which the owners of cargo were entitled must be ascertained by ranking their claim, and the satisfied claim of the owners of the damaged vessel pari passu against the limited amount. Rankine v. Raschen, Ibid. Cases in the Court of Session, 4th series, vol. 4, 725. [Scotch.] 1405a. The Bell and the B. came into collision, in consequence of which the B. sank. The owners of the B. brought an action against the Bell in respect of the collision, and the Bell counter-claimed against the B. At the trial a verdict was taken by consent, dismissing both the claim and counter-claim. The owners of the cargo of the B. subsequently brought an action against the Bell and obtained judgment in their favour. The owners of the Bell then brought an ac- tion for limitation of liability, and paid into court the amount of their statutory liability. A summons was then taken out by the owners of the B. against the owners of the Bell, and an order made by consent (the owners of the cargo of the B. not being parties thereto) setting aside the judgment, dismissing the claim and counter-claim. The owners of the B. then appeared in the limitation action and claimed damages for the loss of the B. out of the fund in court, the owners of the cargo of the B. objecting thereto. The registrar, in his report, disallowed the claim of the owners of the B. against the fund. On motion by the owners of the cargo of the B., opposed by the owners of the B., the court confirmed the report, refusing to allow the owners of the B. to participate in the fund, and holding that the order setting aside the judgment was void. The Bellcaim, 11th August, 1885. Decision affirmed on appeal, 6th Novem- ber, 1885. 1406. In an action in the Admiralty Division for damage by collision in which both ships were injured, and held to blame, and were accordingly condemned to pay a moiety of each other's damage, and one of the parties applied to limit his liability under the act, no set-off is allowed between the two amounts for which they are liable in damages, until the limitation of liability imposed by the statute has been applied. Under the judgment in such an action the moiety of damages to the V. was £14,000, ana that to the S. was £2,000. The owners of the S. then brought an action in the Chancery Division for limitation of their liability, and paid into court £5,212, the aggregate amount of £8 a ton on her registered tonnage. Held (Brett, L. J., dissenting), overruling the judgment of the Master of the Kolls, that the owners of the V. must prove for £14,000 against the fund in court, and must pay the £2,000 in full to the owners of the S. Chapman v. Royal Netherlands Steam Navigation Co., 4 P. D. 157 — C.A. But semble, in effect overruled by The Khedive, infra. 1406a. Held, also, by Jessel, M. E., that the owners of the V., and the owners of the cargo, or the underwriters in their place, and the master and crew of the same ship, must prove pari passu against the fund in court in respect of the moiety of their respective losses. Ibid. 1407. The ships V. and K having come into collision, the owners of the V. brought an action in rem in the Admi- ralty Division against the owners of the K., who counterclaimed, and both ships were held to blame ; the owners of the K. brought an action in the Admiralty Division to limit their liability under the M. S. Act Amendment Act, 1862 (c. 63), s. 54, and paid the amount of their liabi- lity into court. The damage to the V. was greater than that to the K., and the fund in court was not sufficient to satisfy all the claims for which the owners of the K. were answerable in damages. Held (Lord Bramwell doubting), that the own- ers of the V. were entitled to prove against the fund for a moiety of their damage, less a moiety of the damage sustained by the K., and to be paid in respect of the balance due to them after such deduction pari passu with the other claimants, out of such fund. The Khedive, 7 App. Oas. OWNERS. Pt. VI. Exemptions, &c. of Shipowners. 1345 795 ; 52 L. J. P. 1 ; 47 L. T. 198 ; over- ruling the judgment of the court below in 4 P. D. 157. 1408. Where freight is pledged by an instrument in the nature of a bottomry bond, and the ship is totally lost, whilst the freight is at risk, by a collision with another ship which admits and limits her liability under the M. 8. Acts, paying the amount of her liability into court, the holders of the bottomry bond. are entitled to rank against the fund paid into court for the freight so pledged to them. The Empusa, 4 Asp. 185. 1409. Semble, the bondholders are en- titled to recover out of the fund in court applicable to the payment of damages for loss of freight the same proportion of the sum secured by the bond as the total sum apportioned in respect of loss of freight bears to the whole freight of the ship lost. Ibid. 1410. Sect. 54 of the M. 8. Act Amend- ment Act, 1862, limiting liability, does not apply to a case where two ships are to blame for a collision, and the owners of one are relieved from liability on the ground of compulsory pilotage ; but as both ships are to blame, the owners of the ship, so relieved from liability, are only entitled to be paid by the owners of the other ship a moiety of the damage caused to their ship. The Hector (No. 2), 8 P. D. 218 ; 52 L. J. P. 51 ; 48 L. T. 890 ; 31 W. E. 881—0. A. See also No. 1342, p. 1337. (b) Admission of Liability. 1411. It is not necessary for the owner of a vessel arrested in the High Court of Admiralty on account of a collision, to admit his vessel to have been to blame for the collision, in order to found an ap- plication to the court under s. 13 of the Admiralty Court Act, 1861, and s. 54 of the Merchant Shipping Act Amendment Act, 1862, to determine the amount of his liability, and to protect him from a multi- plicity of suits. {Hill v. Audus, 1 Kay & Johns. 263, not followed.) The Amalia, 2 N. E. 462 ; 8 L. T. N.S. 806 ; 32 L. J. N.S. Adm. 191. 1412. Prior to the Judicature Acts held that the power given to the Court of Chancery was simply to determine the amount of the shipowner's liability, and to distribute that amount among the several claimants, and not to decide the question of liability or non-liability. Hill v. Audus, 1 Kay & Johns. 263 ; 3 Eq. Eep. 422 ; 24 L. J. Ch. 229. 1413. A shipowner, therefore, seeking to have the amount of his liability deter- mined by the court, and to have an in- junction to restrain proceedings in the other courts, would not be relieved if he denied his liability altogether. Ibid. 1414. Defendants in a collision suit having instituted a suit for limitation of liability, the court ordered the release of the vessel on payment into court in such last suit of the amount limited, together with a sum for interest and costs, with- out requiring an admission of liability. The Sisters, 2 Asp. N.S. 589. See also Miller v. Powell, Cases in the Court of Session, 4th series, vol. 2, 976. [Scotch.] See also No. 1404, p. 1343. (c) Calculation of Tonnage. 1415. The limitation as to tonnage is to be the registered tonnage in the case of sailing ships, and the gross tonnage without deduction on account of engine- room in the case of steamships. See M. S. Act Amend. Act, 1862 (c. 63), s. 54. 1416. In the case of any foreign ship which has been or can be measured ac- cording to British law, the tonnage as ascertained by such measurement shall, for the purposes of this section, be deemed to be the tonnage of such ship. In the case of any foreign ship which cannot be so measured, the surveyor-general of ton- nage in the United Kingdom, and the chief measuring officer in any British possession abroad, shall, on directions from the court hearing the case, with such evidence of the dimensions of the ship as it may be practicable to furnish, give a certificate stating his opinion as to the tonnage of the ship if measured according to British law, and the tonnage in such certificate shall be deemed to be the tonnage of the ship. Ibid. 1416a. By the expression "gross ton- nage" of steamers in sect. 54 of the above act is meant the gross registered tonnage at the time of the collision, as appearing from the official register of the ship at that time ; and this is not affected by the fact that the vessel was afterwards raised and re-registered at a larger tonnage. The Dione, 4th February, 1884. 1417. "Where the space appropriated on board a steamer to the berthing of the crew did not exceed one-twentieth of the remaining tonnage of the steamer, held, that in estimating the " gross ton- nage " of such steamer for the purpose of limiting liability under sect. 54 of the M. S. Act Amendment Act, 1862 (c. 63), 1346 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. the berthage space must be deducted. Burrel v. Simpson fy Co., 4th series, vol. 4, p. 177. [Scotch.] ' 1418. But the 21st section of sub-sect. 4 of the M. S. Act, 1854, only enables such space to be deducted when it is on the upper deck, and not when it is be- tween the spar deck and the tonnage deck. The Franconia, 3 P. D. (0. A.) 164; 4 Asp. 1. 1419. The English certificate of regis- try showing the tonnage is not conclusive evidence of such tonnage, and conse- quently the Order in Council of the 26th June, 1873, made under sect. 60 of the M. S. Act, 1862, directing that German steamships measured after the 1st Jan., 1873, should be deemed to be of the tonnage denoted in their registers in the same manner and to the same extent as and to which the tonnage denoted in the certificate of registry of British ships, is deemed to be the tonnage of such ships, does not make the registers of such Ger- man steamships conclusive evidence of their tonnage. Ibid. 1420. The space appropriated to the crew cannot in the case of a foreign, any more than of a British, vessel, be deducted from the registered tonnage under the M. S. Act, 1867 (c. 124), s. 9, unless the conditions imposed by that section have been complied with. Ibid. 1421. The tonnage on which a limita- tion of liability is to be calculated is that taken from the certificate of registry in force at the time of the collision, and no deduction in respect of crew space, under the provisions of the M. S. Act, 1867 (c. 124), s. 9, can be made unless such deduction appears on such certificate. The John Melntyre, 6 P. D. 200 ; sub nom. The John Ormsion, 50 L. J. P. D. 76. 1421a. See also No. 1403, p. 1343; and as to measurement of tonnage, Pt. I. p. 1188. (d) Costs. See tit. Costs, c. 34, p. 403. 10. Owner in fault or privy to Damage. 1422. The ninth part of this act does not lessen or take away any liability to which any master or seaman, being also owner or part owner of the ship to which he belongs, is subject in his capacity of master or seaman. See the M. S. Act, 1854 (c. 104), s. 516. 1422a. The ancient law of unlimited liability in cases of damage is still bind- ing upon the Court of Admiralty,, except where modified by statute. The Wild Ranger, 32 L. J. Adm. 49 ; and see notes (452), (453), p. 1336. 1423. The owners of a Bhip who are entitled to the privilege of limited lia- bility, are not necessarily those whose names appear upon the ship's register. The master, also part owner of a ship, sold his shares, but before the transfer had been registered, the ship, through the master's default, came into collision with and damaged another vessel. Held, that the master was not an owner so as to affect the privilege of limited liability. Part owners are not partners, and there- fore, semble, the error or misconduct of one part owner would not forfeit the right of his co-owners to limited liability. The Spirit of the Ocean, Br. & L. 336 ; 2 Asp. 192. 1423a. In an action by shipowners to limit their liability in respect of a colli- sion with their vessel, and where it ap- peared that the master, who was on board at the time of the collision was a part owner, and the collision occurred with- out the negligence or privity of the re- mainder of the owners, they have a right to have their liability limited, with a reservation of any right of action there may be against the master personally in respect of his negligence. The Crieket, The Endeavour, 48 L. T. 585 ; 5 Asp. 53. 1424. In a cause of limitation of lia- bility under the 54th section of the Mer- chant Shipping Act Amendment Act, 1862, arising out of a collision, the plain- tiffs alleged that the collision occurred without their fault or privity. It was proved that the master, who was also part owner of the vessel sued, was on board at the time of the collision, but not on deck, the vessel being then in charge of the second mate and a coasting pilot. Held, that under these circumstances there was no obligation upon the master to be on deck; that the fact of his being part owner was no reason for charging the other owners with blame ; and the fact of his being on board at the time of the collision was not in itself sufficient to show that it occurred " with his fault or privity." The Obey, L. E. 1 A. & E. 103. 1425. A steamer got stranded in the Clyde so as to obstruct a considerable portion of the fairway, the owner, who was not a seafaring man, went to the vessel to arrange about getting her light- ened. At night the master failed to exhibit lights, whereby a vessel ran into OWNERS. Pt. VI. Exemptions, &c. of Shipowners. 1347 the steamer and sustained damage. Held, that the collision did not occur with the " actual fault or privity" of the owner. Kidston v. M' 'Arthur, 4th series, vol. 5, 936. [Scotch.] 1426. As to cases under repealed sta- tutes containing like provision where the owner was in fault or privy to the da- mage, see c. 3, p. 1348. 11. Interest and Costs. See tit. Costs, c. 34, p. 403. 12. Owner of British Ship not recognized as British. 1427. The ninth part of this act does not extend to any British ship not being a recognized British ship within the meaning of this act. See the M. 8. Act, 1854 (c. 104), s. 516. 1428. A newly-built ship exceeding fifteen tons burden, on being launched, ran into and damaged a passing ship. The owners of the damaged ship there- upon instituted an action in the Admi- ralty Court against the newly-built vessel to recover for the damage done to their ship, and the court pronounced the vessel proceeded against solely to blame for the collision. Afterwards an action for limi- tation of liability was instituted by the owner of the newly-built vessel, a natural- born English subject, who therein claimed a declaration that he was entitled to a limitation of liability in respect of damage occasioned by the collision. At the hearing of the action it appeared that the newly-built vessel, though re- gistered as a British ship at the time of the institution of the action was not so registered at the time of the collision. Held, that as the vessel was not a recog- nized British ship when the collision occurred, her owner was not entitled to have his liability limited. The Andalu- sian, 3 P. D. 183; 47 L. J. Adm. 165. 13. Accounting for Damages between Part Owners. 1429. All sums of money paid for or on account of any loss or damage in re- spect whereof the liability of the owners of any ship is limited by the ninth part of this act, and all costs incurred in rela- tion thereto may be brought into account among part owners of the same ship, like money disbursed for the use thereof. See M. S. Act, 1854 (c. 104), s. 515. 14. Practice. See tit. Practice, Pt. III. c. 10. 3. Limitation under repealed Statutes. 1 . Generally.* 1430. The liability of a shipowner for damage done by the collision of his ship with another vessel was limited by 53 Geo. 3, c. 159, s. 1, to the value of his ship at the time of, that is immediately before, the collision. He was not there- fore exempted from liability where, by the same collision, his own ship instantly foundered. Brown v. Wilkinson, 15 M. & W. 391 ; 15 L. J. Exch. 34 ; Dobree v. Schroeder, 6 Sim. 291 ; 2 My. & Cr. 489 ; Wilson v. Dickson, 2 B. & A. 2; The Mary Caroline, 3 W. Bob. 101 ; 6 Notes of Cases, 539 ; 12 Jur. 945. 1431. The same construction put upon sect. 504 of the M. S. Act, 1854. African Steamship Co. v. Swanzy, 2 K. & J . 660 ; 25 L. J. Ch. 870 ; Leycester v. Logan, 4 K. & J. 725. 1432. The 53 Geo. 3, c. 159 (which first afforded such limited liability) never applied to foreign vessels. The Wild Ran- ger, 7 L. T. N.S. 752 ; 32 L. J. Adm. 49 ; 1 Lushington. See also Cope v. Doherty, 4 Kay & J. 367 ; 4 Jur. N.S. 451 ; 2 De Gex & J. 614 ; 27 L. J. Ch. 600. 1433. The provisions of the M. S. Act, 1854, c. 104, limiting liability, apply to a case of damage done by a British ship to a foreign vessel, when such da- mage occurs within three miles of the coast of this country. General Iron Screw Collier Company v. Schurmanns, 1 Johns. & H. 180 ; 6 Jur. N.S. 883 ; 8 W. E. 732 ; 29 L. J. Ch. 880. 2. Value of Ship.] 1434. The V. came in collision with * (469) Under the repealed statutes of 7 Geo. 2, c. 15 ; 26 Geo. 3, c. 86 ; 53 Geo. 3, c. 159 ; and ss. 504 and 505 of the M. S. Act, 1854, the responsibility of shipowners was limited to the value of ship and freight. (470) The repealed acts limiting the re- sponsibility of shipowners were held not to extend to lighters and gabbets. See Hunter & Go. v. M'Oowan and others, 1 Bligh, 573 ; Morewood v. Pollok, 1 El. & Bl. 743 ; 21 L. T. 87; 17 Jur. 881 ; 22 L. J. Q. B. 250. t (471) For other cases under repealed sta- tutes, see Potts v. Pollock, March 15, 1837 ; 15 S. 879. [Scotch.] 1348 OWNERS. Pt. VI. Exemptions, &c. of Shipowners. the E., which was lost; a passenger on board the E. being drowned. An action was entered in the Admiralty Court in the sum of £1,500 by the owners of the E. The ship was appraised by the officers of the Court at £450. Held, under the M. S. Act, 1854 (c. 104), s. 504, now re- pealed, that notwithstanding there had been loss of life, the value of the E. must be assessed at the sum named in the ap- praisement. Nixon v. Roberts, 1 Johns. & H. 739 ; 7 Jur. N.S. 820 ; 30 L. J. Ch. 844 ; 9 W. E. 890 ; 4 L. T. N.S. 679. 1435. When claimants of both kinds appear, the owners of property damaged are entitled to have the compensation for loss of life and personal injury mar- shalled, so as to throw it primarily on the excess (if any) of the value at £15 per ton over the actual value of the ship. Ibid. 1436. But when all demands in respect of personal injury or loss of life have been settled, and the only claimants against the ship are the owners of pro- perty, which has been damaged, the ship is not to be estimated at more than her actual value, notwithstanding the fact that loss of life or personal injury has occurred. Ibid. 1437. The 53 Geo. 3, c. 159, s. 1 (con- taining similar provisions to those of the M. S. Act, 1854 (c. 104), s. 504) is to be construed as if the words " with all her appurtenances" had been inserted after " ship or vessel." Gale v. Laurie, 7 D. & E. 711 ; 5 B. & C. 156 ; The Dundee, 1 Hagg. 109. 1438. As to the meaning of the term "appurtenances," see Pt. I. p. 1216. 1439. The ship of the defendants, who were foreigners, remained under arrest and was subsequently sold in satisfac- tion of the plaintiffs' claim for damage, to discharge which the gross proceeds were insufficient. Held, that as against the plaintiffs' claim the expenses of sale and possession fees formed a proper de- duction from the gross proceeds, and that the defendants could not be called upon to repay them. The Europa, 9 L. T. N.S. 781. 1440. A ship had run down another, and was sold in the damage action in the Admiralty. Held, in proceedings under the M. S. Act, 1854, in the Court of Chancery, that her owners were account- able for the gross proceeds of the sale, without deduction in respect of disburse- ments and fees retained by the Admiralty. Leycester v. Logan, 4 Kay & J. 725. 1441. Eor further cases under repealed statutes as to the value of the ship doing the damage, see Dobree v. Schroeder, 6 Sim. 291 ; 2 Mylne & C. 489 ; African Steamship Co. v. Sicanzy, 2 K. & J. 660 ; 25 L. J. Ch. 870 ; Leicester v. Logan, 4 Kay & J. 725. 3. Freight. 1442. For cases as to the calculation of freight liable for loss or damage under the repealed statutes, see ' Cannan and others v. Meaburn, 1 Bing. 465 ; The Be- nares, 14 Jur. 580 ; 7 Notes of Cases, Supp. li. ; The Triune, 3 Hagg. -114; The Linda Flor, 4 Jur. N.S. 172; Wilson v. Dickson, 2 B. & Aid. 2 ; The Leo, 6 L. T. N.S. 58 ; 31 L. J. Adm. 78. 1443. It is every-day practice to require the owners of a vessel which has committed damage to bring in the amount of freight she has earned in the course of the voyage in which she was engaged when the damage was done. This is on the prin- ciple that the owners are responsible to the amount of the property in their pos- session. The Mellona, 3 "W. Eob. 25 ; 12 Jur. 271 ; The Jersey Tar, 8 (Ikish) Jur. 317. 1444. The owners of cargo on board a vessel proceeded against are liable only for the net freight for which they would be liable to the shipowner. The Leo, 31 L. J. Adm. 78 ; 6 L. T. N.S. 58. 1445. "When a vessel which has com- mitted damage has changed owners be- tween the cause of action and the arrest, it is difficult to mate the person to whom the property in the ship has passed re- sponsible, beyond the value of the ship, for the amount of freight which the former owner may have received, who may have gone to a distant part of the world. In such a case the court would be very cau- tious in enforcing the bringing in of the freight, and on proof that there had been a change of owners declined to do so. The Mellona, 3 W. Eob. 25, 26 ; 12 Jur. 271. 4. Interest and Costs. See tit. Costs, c. 34, p. 403. 5. Owner in fault or privy to Damage. 1446. The 53 Geo. 3, c. 159, limiting the responsibility of shipowners to the value of their vessel, does not affect the case of a master, also part owner, having OWNERS. Pt. VII. Compulsory Pilotage. 1349 charge of the vessel, and occasioning a collision. The Triune, 8 Hagg. 114. 1447. In a cause of collision in which, an appearance had been given for the master and principal owner of the vessel proceeded against, motion ex parte before the hearing, founded on affidavit of the insufficiency of ship and freight to cover the alleged damage, for warrant of arrest against the master, rejected. A further motion for a monition against him to pay the surplus reported by registrar and merchants to be due for damage and costs, made after the damage had been pronounced for, also rejected, the ship, which was in possession of the court, not having been sold. A subsequent motion for such a monition, after sale of the ship and the amount of the deficiency had been thereby ascertained, granted, and the monition not having been obeyed an attachment decreed and issued, under which he was imprisoned. Ibid. 115, 117. 1448. In a cause of collision in which the damaging vessel had been arrested and an appearance given for the master, who was also a part owner, and the damage was pronounced for, application to condemn the master, as such part owner, in the excess of damage beyond the proceeds of the ship, under the 53 Geo. 3, c. 159, rejected, the court holding that it was not competent to it to engraft a personal action against the master as part owner upon a proceeding in rem. The Hope, 1 W. Eob. 154. 1449. To render a master, being also a part owner and guilty of neglect, re- sponsible beyond the value of the ship and freight, he must be sued as master in the first instance. The proceeding must be by charging him with being the cause of the damage by his misconduct ; and that cannot be done, directly or in- directly, in another suit. In an action of collision in which the damage had been pronounced for, motion to condemn a part owner, who was on board and in com- mand of the damaging vessel at the time of the collision, in the excess of the da- mage beyond the proceeds of the ship, rejected. The Volant, 1 W. Eob. 385, 390. 1450. In an action on the case against several defendants as shipowners, one of whom was also the master by whose fault the loss had arisen, held,- that the true construction of the 53 Geo. 3, c. 159, s. 1, founded on 7 Geo. 2, c. 15, was that if a sole owner be sued, and the fault or pri- vity be in him, he would be excluded from the protection of the statute; but that where several owners are sued, there must be the fault or privity in each so to exclude them. Wilson v. Dickson, 2 B. & A. 2. 1451. There had been improper treat- ment and a wrongful sale of cargo at an intermediate port. The shipowners re- ceived the proceeds, and retained them with a view to deduct freight. Held, that they were privy to the sale, having adopted the acts of the master, and were therefore liable beyond the value of ship and freight. Heydorn v. Bibby, Court of Exchequer, 1st March, 1855. 1451a. For cases under the M. S. Act Amendment Act, 1862, now in force, see p. 1346. Part VII.— COMPULSORY PILOTAGE. 1. Liability by Common Law. 1452. The common law of the Admi- ralty, before any statute law on the sub- ject, was that the taking on board of a pilot (but not by compulsion of law), though he was duly authorized to act as a pilot, did not exempt the owners from responsibility for his acts. The Eden, 10 Jur. 297 ; 4 Notes of Oases, 460 ; The Neptune the Second, 1 Dodson, 467. 1453. Upon general principles, a party compellable to take a pilot is not respon- sible for his acts. The Maria, 1 W. Eob. 102; The Protector, ibid. 54; The Agri- cola, 2 W. Eob. 19; The Gipsey King, 5 Notes of Cases, 287 ; The Christiana, 7 Moore, P. CO. 171, overruling The Nep- tune the Second, 1 Dodson, 467 ; The Transit, 1838, 1 Monthly Law Mag. Notes of Cases, 582 ; The Girolamo, 3 Hagg. 169; Bennett v. Moita, 7 Taunt. 258; Fletcher v. Br addick, 2 N. E. 182; Bowcher v. Noidstrom, 1 Taunt. 568 ; The Attorney-General v. Case, Exch. 3 Price, 302 ; Carruthers v. Sidebottom, Q. B. 4 Maule & Sel. 77 ; Mackintosh v. Slade, 6 B. & C. 657. 1454. Apart from the M. S. Act, 1854, the owner of a ship is not responsible for damage done by his ship when such damage is occasioned solely by default of a licensed pilot employed by com- pulsion of law. The Annapolis and Jo- hanna Stoll, 4 L. T. N.S. 423 ; 1 Lush. 311; 30 L. J. Adm. 201. 1350 OWNERS. Pt. VII. Compulsory Pilotage. 1455. In a case of loss sustained in the navigation of a prize, held that the taking a pilot released the captor from responsi- bility for the navigation of the vessel, unless it could he shown that the loss arose from want of obedience in the crew to the orders of the pilot, or from any cause assignable to the want of that con- trol which the captor is bound to exercise over the crew. Demand for damage pro- nounced against accordingly. The Ports- mouth, note to William Hastie, 6 C. Eob. 317. 2. Liability by Statute. 1. Before the M. S. Acts* 1456. Before the General Pilot Act, 1812 (c. 39), a master was not discharged from his responsibility for the acts of his crew, although done under the direction of a pilot, who, by the regulations of a statute, superseded the master for the time in the government of his ship. Bowcher v. Noidstrom, 1 Taunt. 568 ; but see Aldrich v. Simmons, 1 Stark. 210. 1457. Owners are not responsible for the acts of a pilot taken on board by compulsion of law. The Eden, 10 Jur. 296 ; 4 Notes of Oases, 460. 1458. Nor where they are expressly absolved from the responsibility by statute. Ibid. 1459. But in all other cases they are responsible for the acts of the pilot. Ibid. 1460. In a cause of collision the mis- chief was found to have arisen from the fault of a duly-licensed pilot in charge of the vessel doing the damage. The pilot had been in the permanent employment of the owners, and engaged in navigating the ship for many years. Held, that the owners were exonerated from responsi- bility under 6 Geo. 4, c. 125. The Bata- vier, 10 Jur. 19; 4 Notes of Cases, 456; 2 W. Eob. 407. 1461. A pilot appointed under the Cork Pilot Act was solely to blame for the col- lision. Held, that the owners were re- sponsible, the employment of the pilot not being compulsory by that act, and the 6 Geo. 4, c. 125, not extending to the local act. The Eden, 2 W. Eob. 442 ; 10 Jur. 296 ; 4 Notes of Cases, 460. 1462. Owners were, under 6 Geo. 4, c. 125, exempt from responsibility for damage arising from the default of the pilot, whether the pilot was taken on board in obedience to the compulsory enactment of the statute, or under certain other clauses thereof. The Duke of Sussex, 1 W. Eob. 273 ; The Christiana, 2 Hagg. 188; The Protector, 1 W. Eob. 45; Lucey v. Ingram, 6 M. & W. 302. 2. Since the M. S. Acts. 1463. The fifth part of this act relating to pilotage applies to the United Kingdom only. See the M. S. Act, 1854 (c. 104), s. 330.f 1464. In the construction of this act " the United Kingdom" means Great Britain and Ireland. " The Trinity House" means the Corporation of the Trinity House of Deptford Strond. " Pi- lotage authority" includes all bodies and persons authorized to license pilots, to fix rates of pilotage, or to exercise jurisdiction in respect of pilotage. " Pilot" means any person not belonging to a ship who has the conduct thereof. " Qualified pilot" means any person duly licensed by any pilotage authority to conduct ships to which he does not belong. Ibid. s. 2. 1465. No owner or master of any ship shall be answerable to any person what- ever for any loss or damage occasioned by the fault or incapacity of any quali- fied pilot acting in charge of such ship, within any district where the employ- ment of such pilot is compulsory by law. Ibid. s. 388. 1466. The 388th section of the M. S. Act must, as it takes away a remedy from persons who have received an in- jury, be construed strictly. The General de Caen, Swabey, 10. 1467. The exoneration conferred on shipowners by the 388th section of the M. S. Act, 1854, is more limited than that which was conferred by the 55th * (472) Owners having voluntarily taken a pilot (under the provisions of 6 Geo. 4, c. 125), held absolved from responsibility, the accident having been entirely caused by the misconduct of the pilot alone, and having occurred within the waters for which he was licensed. The Fama, 2 W. Eob. 184; and Lucey v. Ingram, therein cited. t (473) This is in effect an extension be- yond former statutes, the General Pilotage Act (6 Geo. 4, c. 125), having been held to apply to England only. The Eden, 2 W. Eob. 443, 448. OWNERS. Pt. VII. Compulsory Pilotage. 1351 section of the 6 Geo. 4, c. 125. The Lion, L. E. 2 P. C. 525 ; 38 L. J. Adm. 51 ; 3 Asp. 266 ; 6 Moore, P. C. N.8. 163. 1468. If a master who is not under any compulsion to take a pilot does take a pilot (even assuming that such pilot is bound to act), this does not exonerate the owners from responsibility for the errors committed by such pilot. Ibid. 1469. The construction of the 388th section of the M. 8. Act, 1854, held not to be affected by the case of Lucey v. Ingram (6 M. & W. 302), decided on the 55th section of the 6 Geo. 4, o. 125. Ibid* 1470. The enjoining by statute the taking a pilot, and enacting in case of refusal payment notwithstanding of pilot- age dues, held to amount to a compulsion to take a pilot. The Maria, 1 W. Eob. 102. But if a pilot be taken merely in pursuance of the provisions of an act of parliament, quare, how far is the liability of the owners on general principle thereby discharged? The Agricola, 2 ~W. Eob. 19 ; 7 Jur. 157. 1471. The learned judge of the Admi- ralty Court must in the case of The Maria be understood as assuming that the master was bound to take the first licensed pilot who offered himself . Martin v. Temperley, 4 Q. B. 298 ; 3 G. & D. 497 ; 7 Jur. 15 ; 12 L. J. Q. B. 122— Denman, C. J. 1472. If there be a power of selection, the servant hired is the servant of the person hiring. Ibid. ; but see No. 1460, p. 1350. 1473. The fact that the master has the power of selecting a pilot from a particu- lar qualified class is not sufficient to render the owner responsible for the acts of the pilot. The Hibernian, L. E. 4 P. C. 511 ; 42 L. J. Adm. 8 ; 9 Moore, P. 0. N.S. 340; 1 Asp. N.8. P. 0. 491. Semble, overruling Martin v. Temperley, supra. 1474. "Where a ship is under the com- pulsory charge of a licensed pilot, the owners are not responsible for damage occasioned by his fault or incapacity, although they must meet and rebut any relevant allegation of negligence on their own part. Per Lord Chelmsford, under the M. S. Act, 1854, where the shipowners have proved fault on the part of the pilot sufficient to cause and in fact causing the calamity, they must be held to have satis- fied the condition on which their exemp- tion from liability depends ; and they are not to be called upon to adduce proof of a negative character to exclude the mere possibility of contributory fault. But if in the course of the evidence certain acts or omissions on the part of the crew come out, it will then be incumbent on the owners to show satisfactorily that these acts or omissions in no degree con- tributed to the damage. Per Lord Sel- borne, when it is proved that a qualified pilot was acting in charge of the ship, that such charge was compulsory, and that it was the pilot's fault or incapacity which caused the damage, the burden of proving the defenders' contribution to the loss is cast upon the pursuers. The de- fenders are not obliged to travel into the indefinite region of negatives, or to anti- cipate by denial that for which no foun- dation is laid, to call upon them to deal with it. They are, however, bound to rebut evidence actually brought against them of contributory negligence. Clyde Navigation Co. v. Barclay, L. E. 1 App. Cas. 790. 1475. When the employment of a pilot is within the provision of s. 1 39 of the Mersey Docks Consolidation Act, 1858 (c. xcii), such employment is compulsory. The object of the master when the vessel left dock was to get to sea as soon as he could, and he arranged with the pilot that the vessel should anchor in the Mersey for * (474) Held, that the words "wanting a pilot," in the 72nd section of 6 Geo. 4, c. 125, were not to be confined to such vessels as were by the provisions of the act bound to take a pilot, but were to be construed as applying to any vessel, the master or owner of which thought fit to require one, and that inasmuch as under the 72nd section the pilot could not lawfully refuse to go on board and take charge of any vessel wanting a pilot when required by the owner to do so, he must be considered, when so required and em- ployed, as acting under some of the provi- sions of the act, and not as the private ser- vant of the owner. Lucey v. Ingram, 6 Mee. & W. 302. (475) The 388th section of the Merchant Shipping Act, 1854, having given immunity to owners for the acts of pilots when taken compulsorily, and the 353rd section having defined the compulsion to mean, besides such as is especially declared in that act, also such as existed immediately previous, it is still necessary to regard the antecedent state of the law for the compulsions and exemptions then existing, and among others to notice those enacted in the 6 Geo. 4, c. 125, not- withstanding the repeal of that act generally by the Merchant Shipping Bepeal Act, 1854 (c. 120). 1352 OWNERS. Pt. VII. Compulsory Pilotage. the night, but should go so far on the way as would enable her to cross the bar on the next morning's tide. Held, that the ship was proceeding to sea within the meaning of sect. 139 at the time she left the dock, and that the anchoring was not a discontinuance of her progress to the sea, but an act proper and reasonable to be done in the course of it. (The doctrine laid down in The Christiana, 7 Moo. P. C. 0. 171, and The Lochlibo, ibid. 430, con- cerning the relative duties of pilot and crew recognized and approved.) Wood v. Smith, L. E. 5 P. 0. 451. 1476. In a case of collision occasioned by a vessel under compulsory pilotage, where no contributory negligence on the part of the master and crew is proved, the pilot in charge is solely responsible, and the owners are exempt from the conse- quences of his neglect or default. The Calabar, L. E. 2 P. 0. 238 ; see also The Ocean Wave, 3 ibid. 205. 1477. The 388th section of the M. S. Act, 1854 (c. 104), does not require that the pilot should be compulsorily employed where the accident happened, but only that he should have been compulsorily employed within the district where it happened. The General Steam Naviga- tion Co. v. British Colonial Steamship Co., Limited, L. E. 3 Ex. 330, and 4 ibid. (Ex. Ch.) 238 ; 27 L. J. Ex. 194 ; 38 ibid. (Ex. Ch.) 97 ; 3 Asp. 168 and 237. 1478. A collision happened between Yantlett Creek and Gravesend through the fault of a pilot taken on board the defendant's vessel, coming up channel at Dungeness. The vessel belonged to the port of London, and was exempt from compulsory pilotage within such port. The court found that for pilotage purposes the port of London ended at Gravesend, and not at Yantlett Creek. But held, affirming the judgment of the court below, that even assuming that the port of Lon- don extended to Yantlett Creek, the effect of sects. 333, 378, and Schedule U. of the M. S. Act, 1854 (c. 104), was such as to prevent the relation of master and servant existing between the owners of the de- fendant's vessel and the pilot, during any portion of the transit from Dungeness to Gravesend, and that sect. 388 was not in- consistent with this, and that, therefore, the defendant's vessel was not liable. Ibid. 1479. Sect. 96 of the Thames Con- servancy Act, 1857, enacting that the owner of every vessel navigating the Thames shall be answerable for damages done by such vessel, "or by any of the boatmen or other persons belonging to or employed in or about the same, by any means whatsoever," to the' property of the conservators, does not apply where the damage is occasioned through the fault of a pilot compulsorily employed. The Conservators of the River Thames v. Hall, L. E. 3 C. P. 415; 3 Asp. 73. 1480. The power to license pilots does not, per se, render the pilotage compul- sory. The Killarney, 6 L. T. N.S. 908; 1 Lushington, 427. 1481. A Erench vessel coming up the Thames took on board a pilot, and, as none of her crew understood English, a waterman to take the wheel. The water- man put her helm up instead of luffing as the pilot ordered, whereby a barge was run into and damaged. The French owner claimed exemption under the 388th section of the M. 8. Act. Held, that the pilot was not answerable for the water- man's incapacity or fault, and that the owners were liable. General de Caen, Swabey, 9. 1482. Semble, owners are not deprived of the benefit of compulsory pilotage by the fact that, after a collision, their vessel did not render the assistance required by sect. 33 of the M. S. Act Amendment Act, 1862 (c. 63). The Queen, The Lord John Russell, L. E. 2 A. & E. 354 ; 38 L. J. Adm. 39 ; 3 Asp. 242. 1483. The Canadian Statutes (27 & 28 Vict. c. 58, s. 10, and 27 & 28 Vict. c. 13, s. 14) are to be read and construed to- gether as being in pari materid % consti- tuting a compulsory pilotage, and ex- onerating the owner from liability for damage occasioned by his vessel when in charge of a pilot by compulsion of law. The Hibernian, L. E. 4 P. C. 511 ; 42 L. J. Adm. 8 ; 9 Moo. P. C. N.S. 340 ; 1 Asp. N.S. 491. 1484. No owner of any vessel, in charge of a duly-licensed pilot taken by compulsion of law, is answerable to the undertakers of the harbours and piers, within the act, for any damage done by such vessel to the harbour, dock, pier, or the quays or works connected therewith, when such damage has been caused solely by such pilot. See the General Pier and Harbour Act, 1847 (c. 27), s. 74; and see also Pt. II. c. 6, p. 1233* * (476) The master being an intermediate agent is not liable to his owner for the wrong- ful acts of the pilot, and the better opinion appears to be that he would not be liable to OWNERS. Part VII. Compulsory Pilotage. 1353 1485. Tho General Pilot Act (52 Geo. 3, o. 39), now repealed, did not confine the exemption to loss or damage happening to the piloted ship and cargo, but extended to damage done by that ship to others. Ritchie v. Bomfield, 7 Taunt. 309. 3. Crown Ships * 1486. This act, except as therein spe- cially provided, does not apply to ships belonging to her Majesty. See M. S. Act, 1854 (c. 104), s. 4. a stranger. Seo 1 Maude & Pollock (4th ed. by Pollock & Bruce), p. 281, and the cases therein referred to. (477) The compulsion to take a pilot has generally been considered to consist in the ability to a penalty for refusal to employ a duly-qualified pilot in a district for which he is duly licensed. The penalty, therefore, in such cases would seem to be the gist of the compulsion. It may, however, bo questioned whether this be not too rigid a statement of the law, and whether if an act of parliament provided that duly- qualified pilots should be licensed for a district, and, without prescrib- ing a penalty in case of refusal, directed that owners of vessels should employ them, the direction by statute would not of itself amount to a legal compulsion sufficient to oxempt an owner from responsibility for the acta of a pilot so employed. See The Maria, 1 W. Eob. 102; The Fama, 2 "W. Eob. 184; The Agricola, 2 Ibid. 19 ; The Bake of Sussex, 1 Ibid. 273 ; The George, 4 Notes of Cases, 161. Sed contra The Killarney, Lushington, 427. (478) In America a collision was caused solely by the negligent conduct of the pilot in chargo, taken by compulsion of law, but the owners were notwithstanding condemned in the damages caused by the collision. (Supreme Court of the United States.) The China, 7 Wallace, p. 61. See also a report thereof in Appendix to Eeport of Select Committee on Pilotage Bill (Parliamentary Return 343 of 1870, p. 521). See also The Carolus, 2 Curtis, C. 0. 269; The Hallock, 1 Sprague, 539 ; Yates v. Brown, 8 Pickering, 23 ; Williamson v. Price, 4 Martin, N.S. 399 ; Flanigan v. Washington Insurance Co., 7 Barr. 31 ; Dennisonv. Seymour, 9 Wendell, 1; Smith v. Condrey, 1 Howard, 28 ; The Lotty, Olcott, Adm. 329 ; The Creole, 2 Wallace, i'un. 511; The Rescue, 2 Sprague, 16; 3 Cent's Commentaries, p. 135; Beeves v. The Constitution, Gilpin, 579. [American.] _ (479) The principle appears to be that the pilot is substituted in the place of the master, and the master ceases therefore to be liable as master, but the owners remain answerable for the conduct of the new temporary master, the pilot, in the same way and to the same extent that, so far as the navigation of the ship was concerned, the owners were liable for the conduct of the master himself. Bussy v. Donaldson, 4 Dallas, 206. [American.] (480) The Pennsylvania Pilot Act of 29th March, 1803, which obliges vessels going out p. of or coming into the port of Philadelphia to receive a pilot under a "penalty" and "for- feiture" of half pilotage which the act makes a lien upon the ship, and recoverable in the Admiralty, not being, as is decided, compul- sory but optional, the master of the ship need not take a pilot if he prefers to pay the penalty or forfeiture. Smith v. The Creole and The Sampson, 2 Wallace, jun. 485. [American.] (481) Hence, there being a direct privity between the pilot and the ship, the latter is liable in Admiralty for damage caused by his acts. Ibid. (482) See the policy of the law in this re- spect vindicated, and all the authorities on the subject reviewed. Ibid.; and Stuart's Vice- Adm. Eep. (Lower Canada), p. 199. (483) Prior to the Canadian Statutes (27 & 28 Vict. c. 58, s. 10, and Ibid. c. 13, s. 14), held, in the Vice -Admiralty Court of Lower Canada, that the owners were liable notwith- standing pilot in charge. The Cumberland, ibid. 85; The Lord John Russell, ibid. 190. (484) But held, that the master is not answerable to the owners or other persons for the acts of the pilot. The Sophia, ibid. 97 ; Molloy, B. 2, c. 9, 1 & 2 ; 3 Kent's Com. 135 ; Snell v. Rich, 1 Johns. 305. [Ameri- can.] (485) Under the old Pilot Acts, held, that an action could not be maintained against the master of a vessel for running down a ship in the river Thames while, in pursu- ance of the Pilot Act, he had a pilot on board, no positive default in the master being proved. Bennet v. Moita (1815), 7 Taunt. 258 ; 1 Moore, 4 ; Holt, 359 ; S. P. Ritchie v. Bousfield (1816), 7 Taunt. 309 ; and see Coatts v. Herbert, 3 Stark. 12; and Fletcher v. Braddick, 2 N. E. 182 ; Start v. Clements, N. P. 107. (486) The 6 Geo. 4, c. 125, is repealed by the M. S. Eepeal Act, 1854 (c. 120), but see note (475). » (487) The provisions of the old Pilot Acts, now repealed, were held to apply to the Crown as well as to the subject. See Att.-Oen. v. Case, 3 Price, 302. (488) But by 6 Geo. 4, c. 125, s. 86, now also repealed, but in force up to the time of the M. S. Act, 1854 (c. 104), coming into operation, it was enacted that nothing therein contained should extend to any ships or ves- sels belonging to his Majesty, his heirs and successors, as to their being compelled to take pilots on board. See 6 Geo. 4, c 125, s. 86. 4 s 1354 OWNERS. Part VII. Compulsory Pilotage. 4. Ships one or both Foreign. 1 . Generally. 1487. The British legislature has no authority over foreign vessels on the high seas out of British jurisdiction, but may impose any conditions on foreign yessels entering a British port, and con- sequently an obligation on foreign ships inward bound to take a pilot at a con- venient station beyond three miles from the British shore. The Annapolis and Johanna Stoll, 1 Lush. 295 ; 30 L. J. Adm. 201 ; 1 Asp. 69 ; 4 L. T. N.S. 417. 1488. A statute, imposing in general terms on all inward-bound vessels the obligation to take a pilot at a convenient stationbeyond three miles from the British shore, is binding on foreign vessels, such construction being justified on grounds of public policy. Ibid. 1 Lush. 295. 1489. National jurisdiction in pilotage matters, by custom land general policy, extends beyond the three miles limit. Ibid. 306. 1490. The British legislature may ap- point a pilot station more than three miles from the British shore, for vessels inward bound to a British port, and an enactment general in terms, requiring inward-bound vessels there to take pilots, is binding on foreign vessels entering the port. Ibid. 1491. Many sections of Part V. of the M. S. Act, 1854, apply to foreigners in British waters. Ibid. 311. 1492. Held, that the 388th section of the M. S. Act, 1854 (c. 104), applies to foreign vessels sued for damage done in British waters. Ibid. 1493. The provisions of the 6 Geo. 4, c. 125, now repealed, exempting owners from responsibility for damage arising from the default of a duly-licensed pilot, extended to cases where the damage was done by a British ship to the property of foreigners as well as to cases entirely be- tween British subjects, on the general principle of- international law, that the party seeking a remedy must take it ac- cording to the law of the country in which it is to be enforced. The Vernon, 1 ~W Bob. 317, 319. 1494. Held, that the above provisions of 6 Geo. 4, c. 125, were applicable to foreign ships. The Atlas, 5 Notes ,of Cases, 54 ; The Eolides,, 3 Hagg. 367 ; The Vernon, 1 W. Eob. 317; The Chris- tiana, 2 Hagg. 188; The Maria, 1 "VV. Eob. 95 ; The Protector, ibid. 45 ; over- ruling The Girolamo, 3 Hagg. 169; and The Carolus, note to The Gladiator, ibid. 343. 1495. A foreign ship, without a British register, was not exempted from com- pulsory pilotage by the 59th section of 6 Geo. 4, c. 125. The Hanna, L. E. 1 A. & E. 283 ; 36 L. J. Adm. 1 ; 2 Asp. 434. 1496. A collision took place in foreign,'' waters .between an English and a foreign ship, and it appeared from the pleadings that, by Belgian or Dutch law, pilotage was compulsory, but that by that law the owner was not relieved from his respon- sibility by having given the sole charge of the vessel to a duly-licensed pilot. Held (overruling the decision of the Court of Admiralty in L. E. 2 A. & E. 3 ; 2 Asp. 556), that the defendant (the English ship) was not liable for the damage. The Halley, L. E. 2 P. C. 193. 1497. No foreign ship, whether in bal- last or with cargo or passengers, navf- gating between any port of the United Kingdom or the Channel Islands or Isle of Man, is subject to any other rule for the employment of pilots or other restric- tion than British ships so employed. ' See the Customs Laws Consolidation Act, 1876 (e. 36), s. 141. 1497a. Charges for compulsory pilot- age on foreign vessels are not differential dues within the meaning of the Harbour and Passing Tolls Act, 1861. The Vesta, 7 P. D. 240; 51 L. J. P. D. 25; 4 Asp. 515. 1498. Por powers enabling her Majesty in Council to authorize vessels belonging to countries having treaties of reciprocity with the United Kingdom to be piloted in certain cases without having a licensed pilot on board, see 3 & 4 Vict.- c. 68 ; and for similar powers enabling the crown, with the advice of the Privy Council, to permit vessels not exceeding sixty tons and not having British registers, to be navigated without pilots on the same terms as British ships of like burthen, see 6 Geo. 4, c. 125, s. 60. 1499. By laws of April 14th, 1865, and April 17th, 1868, the coasting trade of Denmark, Iceland, and the Faro Islands, is thrown open to foreign vessels under conditions of reciprocity. See same in 14 Hertslet, p. 1022. 2. In the Mersey. c. 26, s. 2, p. 1384. " OWNERS. Part VII. Compulsory Pilotage. 1355 6. Ships carrying Passengers. 1500. The master of every ship carry- ing passengers between places in the United Kingdom, Guernsey, Jersey, Sark, Alderney, and Man, when navi- gating upon any waters within the limits of any pilotage district, or any part thereof, must, unless he or his mate has a pilotage certificate for such district, employ a qualified pilot. Penalty for breach not exceeding £100. See the M. S. Act, 1854 (c. 104), s. 354. 1501. Held, that this section applied to a steamer carrying passengers within the limits of the port of Dublin. The Dublin Port and Harbour Board v. Shannon, L. E. 7 0. P. 116. [Irish.] 1502. Subject to any alteration to be made by any pilotage authority, all exemptions from compulsory pilotage existing at the time when this act came into operation continue in force. See the M. S. Act, 1854 (o. 104), s. 353. 1503. The 354th section -of the M. S. Act, 1854 (c. 104), making pilotage com- pulsory upon certain vessels, is not to be restricted by .the provision of the 353rd section, that all existing exemptions from compulsory pilotage should continue in force. The Temora, 1 Lushington, 17 ; 1 L. T. N.S. 418. 1504. A vessel carrying passengers and trading between London and Belfast is under the 354th section of the M. S. Act, 1854 (c. 104), compellable to take a pilot. Ibid. 1505. To constitute a passenger within the meaning of the 354th or 379th. sec- tions of the M. S. Act, 1854 (c. 104), the payment of a fare is necessary. The Lion, L. E. 2 A. & E. 102 ; 2 P. O. 325 ; 37 L. J. Adm. 39 ; 38 L. J. P. 0. Adm. 51 ; 3 Asp. 133 ; and P. 0. 266 : 6 Moore, P. C. O. N.S. 163. 1506. The wife and father-in-law of the master were, by invitation from the master, without the privity of the owners, on board a vessel usually carrying passen- gers, but not on a passage voyage at the time. They had neither paid, nor .agreed to pay, any fare before a collision took place, but their passage-money was paid by the master, as sworn to by him, after the collision, although no receipt was produced. Held, that such persons were not passengers within the meaning of the 354th or 379th sections of the M. S. Act, 1854, c. 104. Ibid. 1507. A vessel having on board a man who did not pay anything for his passage, but messed with the captain and performed some work on board, held, under the 379th section of the M. S. Act, 1854 (c. 104), exempt from compulsory pilotage. The Hanna, L. E. 1 A. & E. 283; 36 L. J. Adm. 1 ; 2 Asp. 434. 1508. The following ships, when not carrying passengers, are exempted from compulsory pilotage in the Trinity House, London and outport districts : — Ships employed in the coasting trade of the United Kingdom. See M. S. Act, 1854 (c. 104), s. 379; and Bye-law of the Tri- nity House, Deptford Strond, confirmed by Order in Council of 16th July, 1857.* 1509. Also ships of not more than 60 tons burden. Ibid. 1510. Also ships trading to Boulogne, or to any place in Europe north of Bou- logne. Ibid. 1511. Also ships from Guernsey, Jer- sey, Alderney, Sark or Man, which are wholly laden with stone, being the pro- duce of those islands. Ibid. 1512. Also ships navigating within the limits of the port to which they belong. Ibid. 1513. Also ships passing through the limits of any pilotage district on their voyage between two places, both situate out of such limits, and not being bound to any place within such limits nor an- choring therein. Ibid. 1514. All ships mentioned in the above 379th section are exempted from compul- sory pilotage, as well when carrying pas- sengers as when not carrying passengers, if the master or mate of any such ship has a proper pilotage certificate. See Bye-law of Trinity House, confirmed by Order in Council of 16th July, 1857, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 72. 1515. This Order in Council can only extend, it cannot abridge, an exemption. The Earl of Auckland, 1 Lushington, 164, 387; 30 L. J. Adm. 121; 3 L. T. N.S. 786 ; 5 Ibid. 558 ; 10 W. E. 124; 1 Asp. 27, 177. 1516. And so far as it restricts any previously-existing exemption it is ultra vires. Ibid. * (489) The result of the construction put by the decided cases upon the two statutes is to render the words " when not carrying passengers " contained in the 379th section of the M. S. Act, 1854, of no effect. Possibly the cases may some day be reconsidered by an appellate tribunal. 1 Maude & Pollock (4th ed. by Pollock & Bruce), p. 279. 4s2 1356 OWNERS. Part VII. Compulsory Pilotage: 1517. And the Order in Council, being based on a construction of the law held erroneous by the Court of Queen's Bench, imposes no new pilotage obligation, and adds no new exemption from compulsory pilotage. The Earl of Auckland, 1 Lush- ington, 164, 387 ; 30 L. J. Adm. 121 ; 3 L. T. N.S. 786 ; 5 Ibid. 558 ; 10 W. E. 124; 1 Asp. 27, 177. 1518. A British ship trading between Boulogne and the Baltic, whether carrying passengers or»not, is not bound to employ a licensed pilot in the Thames. Ibid. ; Reg. v. Stanton, 8 E. & B. 445 ; 4 Jur. N.S. 10, 332; 27 L.J. M. C. 105. As to foreign ships, see The Vesta, in Nos. 1589— 1591, p. 1362. 1519. In the 379th section of the M. S. Act, 1854 (c. 104), the description "ships trading to any place in Europe north of Boulogne," extends to vessels coming from a place north of Boulogne to the port of London. A vessel not carrying passengers on a voyage from Cronstadt to London, is exempted from compulsory pilotage in the river Thames. The Wesley, . Lushingfcon, 268. 1520. The master of a vessel belonging to the port of London and bound up the Thames, on a voyage from Australia to London with passengers on board, is required by law to employ a licensed pilot within the limits of the port of London. The Hankow, 4 P. D. 197; 4 Asp. 97. 1521. A certain number of persons, freemen of the Watermen's Company, are licensed by the Corporation (of the Trinity House, London), as pilots to pilot home- trade passenger steamers and no others up and down the Thames, between Lon- don Bridge and Gravesend. They are designated " Watermen Pilots for home- trade passenger ships." See Bye-Laws of the Corporation of Trinity House. Ap- proved by Order in Council of May 1, 1855, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 69. 1521a. For exemption when master or mate has a pilotage certificate, see c. 6 ; and when passing through pilotage dis- tricts, see e. 9, p. 1363. 6. Pilotage Certificates. 1 . Generally.* 1522. A master possessing a proper pilotage certificate, enabling him to do so, may pilot his ship without employing a licensed pilot. See M. S. Act, 1 854 (c. 104), ss. 353—355. 1523. A master of a steam vessel trad- ing between Hull and Botterdam passed an examination as to his qualification to pilot such vessel into and out of the port of Goole. On the next day, he having then sailed for Botterdam, a certificate, enabling him to pilot his vessel into and out of the port, was completed, sealed, and dated, but remained in the office of the Commissioners until after the collision. Held, that such certificate had not heen granted^ and was not possessed by the master so as to exempt his ship from compulsory pilotage. The Killarney, 30 L. J. Adm. 41 ; 5 L. T. N.S. 21 ; 1 Lush- ington, 202. 1523a. Semble, when the master or mate of a vessel is duly licensed under the 5th part of the M. S. Act, 1854, so as to ren- der it unnecessary for him to take a pilot on board, the employment of such pilot does not bring his owners within the im- munity of the 388th section. Ibid. 1524. A pilotage certificate issued to a master under sect. 355, describing the ship as the property of a person who was not the owner either at the time of the granting of the certificate, or at the time of a collision subsequently occurring, is invalid at the time of that collision. The Earl of Auckland, supra, No. 1515. 2. By Board of Trade. 1525. As to the grant of pilotage certi- ficates by the Board of Trade to any master or mate of any ship carrying passengers between any places in the United Kingdom or Channel Islands, see M. S. Act, 1854 (c. 104), ss. 342, 355, and tit. Pilots. 3. By Pilotage Authorities in General. 1526. As to the grant of pilotage certi- ficates by pilotage authorities generally, see M. S. Act, 1854 (c. 104), ss. 340, 341,. and tit. Pilots. * (490) Whenever a master desires to act as pilot, and furnishes the necessary evidence of his ability, the looal inspectors for the district where the licence is issued shall en- dorse the route on the master's certificate ; and, in like .manner, when a first-class pilot desires to aot as mate, if the inspectors are satisfied of his ability, they shall endorse the fact on the pilot's certificate. See Kegola- tions of Supervising Inspectors, circa anno" 1876, rule 53. [American.] (491) But a mate's licence cannot be endorsed as first pilot. Ibid. OWNERS. Part VII. Compulsory Pilotage. 1357 4. By Trinity House, London. 1527. Ab to the conditions upon which pilotage certificates are granted by the Trinity House, London, to masters and mates of ships, and the duties which holding such certificates entail, see Tri- nity House Bye-laws, confirmed by Order in Council of 1st May, 1855, in 2 Maude & Pollock (4th ed. by Poll. & Bruce), p. 71. 1528. Any master or mate who holds a pilotage certificate, granted by the Trinity House, London, under the M. S. Act, 1854 (c. 104), is qualified to pilot any other ship or ships belonging to the same owner or owners, within the limits described in such certificate, without being compelled to employ a pilot, but under the conditions that the ship which he is so qualified to pilot is of no greater draught of water than the ship in respect of which his certificate was granted, and that the name and description of every such ship is added to his certificate. See Ibid. No. 6, in Ibid. p. 72. 1529. All ships employed in the coast- ing trade of the United Kingdom : or of not more than sixty tons burthen: or trading to Boulogne or to any place in Europe north of Boulogne : or from Guernsey, Jersey, Alderney, Sark, or Man, which are wholly laden with stone, being the produce of those islands : or navigating within the limits of the port to which they belong : or passing through the limits of any pilotage district 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, are, even when carry- ing passengers, exempted from compul- sory pilotage if the master or his mate has a pilotage certificate, enabling him to pilot the ship within the district. Ibid. No. 7, in Ibid. p. 73. 5. By Trinity House, Hull. 1530. No certificate granted by the Corporation of the Trinity House, Hull, will authorize the person therein named to pilot any other ship than the ship or ships therein specified, and of which he may be actually master or mate at the time*. See Bye-laws of the Trinity House, Hull, No. 9, confirmed by Order in Council of July 31, 1858. 7. Board of Trade. 1. Generally. 1531. As to the powers of the Board of Trade by provisional order to create, transfer and re-arrange pilotage authori- ties, see tit. Pilots, c. 5, s. 1. 2. Exemptions. 1532. The Board of Trade has power by provisional order to constitute a pilot- age authority and fix its limits in any place in the United Kingdom where there is no such authority, but there is to be no compulsory pilotage in such new dis- trict. See M. S. Act Amendment Act, 1862 (c. 63), s. 39, sub-s. 3. 1533. The Board of Trade has the like power to exempt the masters and owners of all ships or classes of ships from being obliged to employ or pay pilots in any pilotage district or part thereof, and to annex any conditions to such exemptions. Ibid, sub-s. 4. 8. Pilotage Authorities in General. 1. Powers and Jurisdiction. 1534. As to the powers and jurisdiction of pilotage authorities in general, see tit. Pilots, c. 5. 1535. Every qualified pilot on his ap- pointment receives a licence, which must be duly registered, and he is not entitled to act as such until his licence is so regis- tered; and any qualified pilot acting beyond the limits in his licence is to be considered as an unqualified pilot. See the M. S. Act, 1854 (c. 104), s. 349. 2. Compulsion. 1536. Subject to alteration by any pilotage authority, the employment of pilots shall continue to be compulsory in all districts in which the same was by law compulsory immediately before this act. Ibid. s. 353. 1537. Penalty against every master of any unexempted ship navigating within any such district, after a qualified pilot has offered or made a signal to take charge, piloting such ship without a proper pilot- age certificate, or continuing to employ an unqualified person to do so, double pilot- age. Ibid. 1538. The exemptions from compulsory pilotage given by 6 Geo. 4, c. 125, and semble, therefore previous compulsions, are continued by sect. 353 of the M. S. Act, 1854, and qualify sects. 376—379 of that act. The Earl of Auckland, 1 Lush- 1358 OWNERS. Part VII. Compulsory Pilotage. ington, 164 ; 30 L. J. Adm. 121 ; 3 L. T. N.S. 786 ; 10 W. E. 124 ; Beg. v. Stanton, 8B.&B. 445 ; 4 Jur. N.S. 10, 332 ; 27 L. J. M. 0. 105. 3. Exemption. (a) Generally. 1539. Subject to alteration by any pilotage authority, all exemptions from * compulsory pilotage existing before this act, are to continue in force. See M. S. Act, 1854 (c. 104), s. 353. 1540. As to new districts, the Board of Trade has power by provisional order to constitute a pilotage authority and to fix the limits of its district in any place in the United Kingdom where there is no such authority ; so, however, that in the new pilotage district so constituted there shall be no compulsory pilotage, and no restriction on the part of duly-qualified persons to obtain licences as pilots. See M. S. Act, 1862 (c. 63), s. 39, sub-s. 3, and The Stettin, 6 L. T. N.S. 613; 31 L. J. Adm. 208. 1541. The exemptions from compulsory pilotage given by 6 Geo. 4, c. 125, are continued by sect. 353 of the M. S. Act, 1854, and qualify sects. 376 — 379 of that act. The Earl of Auckland, 1 Lush- ington, 164 ; 30 L. J. Adm. 121 ; 3 L. T. N.S. 786 ; 10 W. E. 124 ; Reg. v. Stanton, 8 E. & B. 445 ; 4 Jur. N.S. 10, 332; 27 L. J. M. O. 105 ; The Stettin, 6 L. T. N.S. 613; 31 L. J. Adm. 208; The Moselle, 2 Asp. N.S. 586. 1542. As to the exemptions from com- pulsory pilotage in the London and Out- port districts, see Nos. 1574 — 1642, pp. 1361—1366. 1543. The effect of sect. 353 of the M. S. Act, 1854, is not to take away any of the express exemptions of sect. 379 of that act. Hadqraft v. Hewith, L. E. 10 Q. B. 350; 44 L. J. M. O. 140; 2 Asp. N.S. 573. ' 1544. Every pilotage authority .has power by bye-law, approved by Order in Council, to exempt the masters of any ships, or classes of ships, from being com- pelled to employ qualified pilots, to an- nex any conditions thereto, and to revise and extend any exemptions now existing on such conditions as may appear desirable. See the M. S. Act, 1854 (c. 104), s. 332. 1545. As to the powers of the Board of Trade to grant exemptions, see Nos. 1532, 1533, supra. 1546. As to the grant of pilotage cer- tificates enabling the masters or mates of certain ships to pilot them in lieu of their being compelled to take a licensed pilot, see c. 6, p. 1356. 1547. Compulsory pilotage is not a " charge " upon vessels under the 2nd section of the Convention of Commerce and Navigation between Great Britain and Sweden, dated 18th of March, 1826 (for which see 3 Hertslet's Commercial Treaties, p. 433). The Hanna, L. E. 1 A. & E. 283 ; 36 L. J. Adm. 1 ; 2 Asp. 434. (b) Vessels under Sixty Tons. 1 548. Eor provisions exempting British vessels under sixty tons from compulsory pilotage, see p. 1365. 1549. As regards the ports of Kingston- upon-Hull and Newcastle-upon-Tyne, and the ports and places respectively mem- bers thereof, and all other ports and places in respect of which the power vested in her Majesty by virtue of 4 Geo. 4, c. 77, is still subsisting, all vessels belonging to Erance, Sardinia, Portugal and Texas, bound from or to ports of the countries to which they re- spectively belong, or if in ballast any other places, and being of less than sixty tons burthen, are exempted from compul- sory pilotage in all cases where British vessels of less burthen than sixty tons are so exempted. See Order in Council of 13th December, 1843, in 2 Maude & Pol- lock (4th ed. by Pollock & Bruce), p. 67. 1550. As regards all other ports and places in the United Kingdom, vessels belonging to Sweden and Norway, Eussia, Denmark, Hanover, Prussia, the Free Hanseatic cities of Bremen, Liibeck, Hamburgh and Erankfort, the Nether- lands, Greece, the United States, Mexico, Columbia, Venezuela, Brazil, Bolivia, Peru, the united provinces of Bio de la Plata and Uruguay, being of less than sixty tons burthen, entering or clearing out of any such ports and places, are exempted from compulsory pilotage upon the same terms and conditions as British vessels, not exceeding the like burthen, under 6 Geo. 4, c. 125. Ibid. 1551. For similar provisions as to ships belongingtoAustria,Mecklenburg-Schwe- rin, Mecklenburg- Strelitz, ana Olden- burgh, irrespective of the places from or to which they are bound, see Order in Council of 3rd September, 1844, gazetted 14th September. 1551a. For similar provisions as to the Two Sicilies, see Order in Council of 8th August, 1845, OWNERS. Part VII. Compulsory Pilotage. 1359 9. Trinity House London District. 1. Generally.* 1552. See as to the powers and autho- rity of the Trinity House, London, gene- rally, and within the London District, tit. Pilots, e. 6. 1552a. The Cinque Ports district and the pilotage authority thereof have heen included in and transferred to the Trinity House, London. See M. S. Act, 1854 (c. 104), s. 370, and 16 & 17 Vict. c. 129. 1553. Eochester is included in this dis- trict. See Parliamentary Returns as to Pilotage, Sessions Paper, No. 325 of 1882, p. 230 ; and for rates and regulations of pilots between Eochester and the Nore, Ibid. p. 186. 1553er. Maldon forms part of this dis- trict ; and as to its limits, Ibid. p. 219, and Trinity House Regulations of July, 1874. 1554. The Trinity House London Dis- trict comprises the waters of the Thames and Medway as high as London Bridge and Eochester Bridge respectively, and also the seas and channels leading thereto or therefrom as far as Orfordness to the north and Dungeness to the south. See M. S. Act, 1854 (c. 104), s. 370. 2. Compulsion. 1555. Subject to alteration by the Trinity House, and to the exemptions in this act, the pilotage districts of the Trinity House within which the employ- ment of pilots is compulsory are the Lon- don, Outport and English Channel Dis- tricts (as therein defined). The master of every ship navigating within any part of such districts, who, after a qualified pilot has offered to take charge, or has made a signal for that purpose, either himself pilots such ship without possessing a pilotage certificate, or employs an un- qualified person to pilot her, shall (in addition to the penalty of double pilot- age), if the Trinity House certify under their seal that the prosecutor may pro- ceed for the recovery of such additional penalty, incur an additional penalty not exceeding £5 for every fifty tons burden of such ship. Ibid. s. 376. 1556. Subject to alteration by the Trinity House every master of any ship coming from the westward, and bound to any place in the Thames and Medway (unless exempted), shall, on the arrival of such ship ofE Dungeness, and thence- forth until she has passed the south buoy of the Brake, or a line to be drawn from Sandown Castle to that buoy, or until a qualified pilot has come on board, display and keep flying the usual signal for a pilot. If any qualified pilot is within hail, the master shall give charge of his ship to such pilot. Penalty for breach not exceeding double pilotage. Ibid. s. 378. 1557. Every pilot who shall have taken charge of any ship from the Thames to the Downs or elsewhere, shall, without additional compensation, wait on board for three complete days while such ship may be detained at Gravesend or else- where by any casualty, nor shall he at the end of three complete days be at liberty to quit such ship, or receive addi- tional compensation, if she shall be fur- ther detained by winds, weather, or tides. See Bye-Law, No. 6, of Trinity House, Deptford Strond, confirmed by the King's Bench, 16th April, 1826, pursuant to 6 Geo. 4, c. 125, s. 11. 1558. Should the ship be detained be- yond three complete days on any other account, except winds, weather, or tides, the pilot shall nevertheless (if required) remain in charge if a compensation of six shillings per day is offered to him by the master or owner. Ibid. 1559. When a vessel comes to anchor the duty of the pilot is at an end, but if he continues on board she is still under his charge. The Christiana, 7 Moore, P. C. C. 170; 7 Notes of Cases, 6; ibid. Supp. xliv. 1560. Pilot might have left the ship when she anchored in the Downs, but he did not. Held still in charge. Ibid. 1561. See also Nos. 1839—1842, p. 1383. 1562. Semble, the limits of the port of London vary for different purposes. The General Steam Navigation Co. v. The British and Colonial Steam Navigation Co., Limited, L. E. 4 Ex. (Ex. Ch.) 238 ; 38 L. J. ib. 97 ; 3 Asp. 237. 1562a. Eor customs purposes it may extend to a line drawn from the Naze to the North Poreland. Ibid. 1563. For conservancy purposes it may • (492) See aa to the legal status of the London District of the Trinity House, 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 110; and Orders in Council in Ibid; pp. 68—81. 1360 OWNERS. Part VII. Compulsory Pilotage. extend from Staines Bridge to Tantlett Creek. The General Steam, Navigation Co. v. The British and Colonial Steam Navi- gation Co., Limited, L. E. 4 Ex. (Ex. Ch.) 238 ; 38 L. J. ib. 97 ; 3 Asp. 237. 1564. The limits of a port may also from time to time vary, and increase with, the increase of population and of buildings. Ibid. 1565. Eor pilotage purposes the port of London extends down the river to Graves- end and no further. Ibid. 4 Exch. 238. 1566. But even assuming that the port of London extends for pilotage purposes to Yantlett Creek, and that therefore a vessel belonging to the port of London would be exempt from compulsory pilot- age above Tantlett Creek, yet the effect of sects. 378, 333 and Schedule U. of the M. S. Act, 1854 (c. 104), is such as to prevent the relation of master and servant existing between the owners of such vessel and a pilot taken on board off Dungeness, during any portion of the transit from Dungeness to Gravesend. Ibid. L. B. 3 Exch. 330; 37 L.J. Ex. 194; 3 Asp. 168. 1567. Held, also, that the exemption con- tained in sect. 388 of the M. S. Act, 1854 (c. 104), does not require that the pilot should be compulsorily employed where the accident happens, but only that he should have been compulsorily employed within the district where it happens. Ibid. 4 Exch. 238. 1568. The effect of 6 Geo. 4, c. 125, s. 59, and the 353rd section of the M. S. Act, 1854 (c. 104), is that pilotage is com- pulsory upon a vessel belonging to the port of London in the river Thames above Gravesend, inasmuch as the Trinity House charter makes provision for the appoint- ment of pilots in those ports. ( The Kil- larney, Lush. 427 ; 30 L. J. Adm. 41 followed; and The Stettin, Br. & L. 199, 202 ; 31 L. J. Adm. 208 doubted.) The Hankow, 4 P. D. 197 ; 48 L. J. P. D. 29 ; 4 Asp. 97. 1569. The 354th section of the M. S. Act, 1854 (c. 104), making pilotage com- pulsory upon certain vessels, is not to be restricted by the provision of the 353rd section, that all existing exemptions from pilotage should continue in force. An Irish trader (as described by 6 Geo. 4, c. 125, s. 159) therefore carrying pas- sengers is compelled to employ a licensed pilot in the river Thames, (li. v. Stanton, 8E. &B.445, distinguished.) TheTemora, Lush. 17. 1570. The 374th section of the M. S. Act, 1854 (c. 104), provides 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 hold- ing such licence, be renewed on the 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 by them for that purpose." Held, that a pilot's licence renewed by indorsement made on the 22nd of January operated as a renewal from the 31st Janu- ary, and was therefore effective on the 6th May following. The Beta, Br. & Lush. 328. 1571. 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 a cargo shipped at Liverpool and deliverable at London, is not a " ship employed in the coasting trade of the U. K. " within the meaning of the 379th section of the M. S. Act, 1854 (c. 104), and is compellable by the 376th section to take a pilot in the London district of the Trinity House. The Lloyd's or Sea Queen, Br. & Lush.^ 359 ; 2 N. E. 497 ; 9 L. T. N.S. 236 ; 32 L J. N.S. Adm. 97. 1572. A duly-qualified pilot being in- trusted with the navigation of a foreign vessel, the owner is exonerated under stat. 6 Geo. 4, c. 125, s. 55, which applies equally to foreign ships as to British ships. Foreign owner and bail dismissed. The Christiana, 2 Hagg. 183. 1573. As to compulsion in regard to ships carrying passengers and what con- stitutes a passenger, see c. 5, p. 1355. 3. Exemption. (a) Generally. 1574. The master of any collier, or of any ship or vessel trading to Norway, or to the Oattegat or Baltic, or round the North Cape, or into the "White Sea, on their inward or outward voyages, or of any constant trader inwards, from the ports between Boulogne inclusive and the Baltic, all such ships and vessels having British registers, and coming up either by the North Channel (or South Channel, see No. 1582, infra), or of any Irish trader using the navigation of the rivers Thames and Medway, or of any ship or vessel employed in the regular coast- ing trade of the kingdom, or of any ship or vessel wholly laden with stone from Guernsey, Jersey, Alderney, Sark, or Man, and being the production thereof, OWNERS. Part VII. Compulsory Pilotage. 1361 or of any ship or vessel not exceeding the burthen of sixty tons, and having a British register, except as hereinafter provided, or of any other vessel what- ever, whilst the same is within the limits of the port or place to which she belongs, the same not being a port or place in relation to which particular provision hath heretofore been made by any act of parliament, or charter for the appoint- ment of pilots, may, without being sub- ject to any of the penalties in this act, pilot his own vessel so long as he shall pilot the same without the aid of any other person than the ordinary crew. of the vessel. See 6 Geo. 4, c. 125, s. 59.* 1575. Subject to any alteration to be made by any pilotage authority, in pur- suance of the powers given by sects. 332 — 336, all exemptions from compulsory pilotage existing when this act came into operation continue in force. The M. S. Act, 1854 (c. 104), s. 353. 1576. The exemptions from compul- sory pilotage given by 6 Geo. 4, c. 1 25, s. 59 (supplemented by Order in Council, 18th February, 1854), are maintained by sect. 353 of the M. S. Act, 1854 (c. 104), and qualify sects. 376, 379 of that act. (R. v. Stanton, 8 E. & B. 445, followed.) The Earl of Auckland, supra, No. 1515; The Hankow, supra, No. 1520. 1577. By sect. 353 of the M.S. Act, 1854 (c. 104), all exemptions from compulsory pilotage which existed at the time when that act came into operation continue in force. The Stettin, 6 L. T. N.S. 613 ; 31 L. J. Adm. 208 ; B. & L. P. 0. 199. 1578. A foreign ship not having a British register is not exempted from compulsory pilotage by the 59th section of the 6 Geo. 4, c. 125. The Hanna, L. E. 1 A. & E. 283 ; 36 L. J. Adm. 1 ; 2 Asp. 434. 1579. The following ships, " when not carrying passengers,"* are exempted from compulsory pilotage in the London Dis- trict, and in the Trinity House Outport Districts : ( 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 Bou- logne ; (4) Ships from Guernsey, Jersey, Alderney, Sark, or Man, which are wholly laden with stone, being the produce of those islands; (5) Ships navigating within the limits of the port to which they be- long ; (6) Ships passing through the limits of any pilotage district on their voyages between two places, both situate out of such limits, and not being bound to any place within such limits, nor an- choring therein. See the M. S. Act, 1854 (c. 104), s. 379; and Bye-Law of the Trinity House, Deptford Strond, con- firmed by Order in Council, 16th July, 1857. 1580. As to exemptions in regard to ships carrying passengers, and what con- stitutes a passenger, see c. 5, p. 1355. (b) Ships trading to Norway, fyc. 1581. The master of any vessel trading to Norway, or to the Cattegat, or Baltic, or round the North Cape, or into the White Sea, on their inward or outward voyages, all such ships and vessels having British registers, and coming up by the North Channel (or South Channel, see No. 1582, infra), may, without being subject to penalties, pilot his own ship, so long as he does so without the aid of any other person than his ordinary crew. 6 Geo. 4, c. 125, s. 59. 1582. Ships trading to Norway, or to the Cattegat or Baltic, or round the North Cape, or into the White Sea, when coming up by the South Channels, are similarly exempted from compulsory pilotage. See Regulations of Trinity House, confirmed by Order in Council of Feb. 18, 1854, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 68. 1583. The exemptions contained in the Order in Council of Feb. 18, 1854, do not apply to a vessel coming up by the North Channel. The Hanna, L. E. 1 A. & E. 283 ; 36 L. J. Adm. 1 ; 2 Asp. 434. 1584. A person to whom the master, without the owner's consent, gives a pas- sage gratuitously, and who messes with him, but who, having had some experi- ence at sea undertakes in return to help in the working of the ship, is neither a passenger nor a seaman. Ibid. (c) Ships trading to Boulogne or North of Europe. 1585. Ships trading to Boulogne or to any place in Europe north of Boulogne, are, when not carrying passengers, ex- empted from compulsory pilotage in the Trinity House, London, and outport dis- * (492a) See these exemptions referred to separately, infra. 1362 OWNERS. Part VII. Compulsory Pilotage. tricts. See M. S. Act, 1854 (c. 104), s. 379. 1586. The Order in Council of 16th July, 1857 (purporting to approve a bye-law of the Trinity House, purporting to restrict the exemptions then existing within the London District), being based on a con- struction of the law held erroneous by the Court of Queen's Bench, imposes no new pilotage obligation, and adds no new exemption from compulsory pilotage. The Earl of Auckland, 1 Lushington, 164, 387 ; 30 L. J. Adm. 121 ; 3 L. T. N.S. 786 ; 5 ibid. 558 ; 10 W. E. 124 ; 1 Asp. 27,. 177. 1587. A British ship, trading between Boulogne and the Baltic, and carrying passengers, is not bound to employ a licensed pilot in the river Thames. Ibid. 1588. Under the 332nd section of the M. S. Act a pilotage authority, with the consent of her Majesty in Council, has no authority to create a new penal obligation to employ a licensed pilot, but only au- thority to create or extend an exemption from compulsory pilotage with or without condition. Ibid. 1589. The exemptions from compulsory pilotage created by the Order in Council of the 18th February, 1854, for vessels navigating the Thames, apply only to British ships. The Vesta, 7 P. D. 240 ; 51 L. J. P. D. 25; 4 Asp. 515. 1590. Sects. 353 and 376 of the M. S. Act, 1854 (c. 104), render foreign vessels trading with cargo and passengers from the port of London to ports between Boulogne and the Baltic subject to com- pulsory pilotage on their outward passage between London and Grravesend, unless their masters or mates have certificates from the London Trinity House ; and the operation of these sections, so fa'r as such vessels are concerned, is not affected either by the Order in Council of Feb- ruary 18, 1854, or by provisions con- tained in the Harbour and. Passing Tolls Act, 1861. Ibid. 1591. Charges for compulsory pilotage on such foreign vessels are not differential dues within the meaning of the Harbours and Passing Tolls Act, 1861, and are not abolished by that act. Ibid. (d) Constant Traders inwards from Port} North of Boulogne. 1592. The master of any constant trader inwards, from the ports between Bou-- logne inclusive and the Baltic, all such vessels having British registers, and com- ing up either by the North Channel, or South Channel (see No. 1593, infra), may pilot his own vessel so long as he navi? gates her without the aid of any other person than his ordinary crew. See 6 Geo. 4, c. 125, s. 59. 1593. The masters of vessels trading to ports between Boulogne inclusive, on their outward passages, and when coming up by the South Channels are similarly ex- empted from compulsory pilotage. See Regulations of Trinity House, confirmed by Order in Council of 18th Feb. 1854, in 2 Maude & Pollock (2nd ed. by Pollocks Bruce), p. 68.* 1594. A vessel, not carrying passengers^ on a voyage from Cronstadt to London, is exempted from compulsory pilotage in the Thames. The Wesley, 1 Lushington, 268. (e) Ships trading between Great Britain and Ports North and East of Brest. 1595. All ships trading within the Trinity House, London, or Outport Dis- tricts, between the port of Brest, in Erance, or any port or place in Europe north and east of Brest, and any port or place in Great Britain, when not carrying pas- sengers, are exempted from compulsory pilotage within such districts. See Bye- law of Trinity House, London, approved by Order in Council of 21st December, 1871, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 78. (f) Ships in Coasting Trade. 1596. The master of any vessel em- ployed in the regular coasting trade of the kingdom may pilot his own vessel so long as he navigates her without the assistance of any other person than his ordinary crew. See 6 Geo. 4, c. 125, s. 59. 1597. As to the continuance of this * (493) As to the construction put on these words, see The Earl of Auckland, No. 1576. ■ (494) A vessel trading to and from London and Belfast, and proceeding down the Thames on her voyage to Belfast, and not laden with corn, grain, meal, flour, bread, or biscuits, held, not within sect. 2 of 52 Geo. 3, c. 29 (now repealed), which exempted from the obligation of taking a pilot all coasting- ves- sels and all Irish traders using the naviga- tion of the Thames as coasters. Davison v. McKibben, 3 Brod. & Bing. 112. OWNERS. Part VII. Compulsory Pilotage. 1363 exemption, notwithstanding the act is repealed, see Nos. 1575 — 1579, supra. 1598. Ships employed in the coasting trade of the United "Kingdom, when not carrying passengers, are exempted from compulsory pilotage in the Trinity House, London, and Outport Districts. See M. S. Act, 1854 (c. 104), s. 379. 1599. The reason why coasting vessels are exempted from the obligation of tak- ing a pilot is, that from their frequent egress and ingress to the particular port, their masters must he presumed to be perfectly acquainted with the locality. The Agricola, 2"W. Eob. 10; 7 Jur. 157. 1600. As to such exemptions in regard to vessels in the coasting trade running in and out of Liverpool, see No. 1847, p. 1384. 1601. A vessel ordinarily occupied in the foreign trade going from Liverpool to London in order to sail from London on such foreign trade, without passen- gers, 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 M. S. Act, and is compellable to take a pilot. The John Mowlem v. The Lloyd's or Sea Queen, 2 N. E. 497; 9 L. T. N.S. 236; 32 L. J. N.S. Adm. 97. See also No. 1497, p. 1354; and No. 1777, p. 1378. (g) Ships navigating between Ports of the United Kingdom in Ballast. 1602. All ships navigating in ballast from any port or place to any other port or place both in the United Kingdom are, when not carrying passengers, exempt from compulsory pilotage within the pilotage jurisdiction of the Trinity House, London. See Bye-law of the Trinity House, approved by Order in Council, July 25, 1861,* in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 73. (h) Ships navigating between Ports of the United Kingdom and the Channel Islands. 1603. All ships trading within the Trinity House, London, or Outport Dis- tricts, or either of them, between any port or place in Great Britain, and the Islands of Guernsey, Jersey, Alderney, Sark, or Man, when not carrying pas- sengers, shall be exempted from compul- sory pilotage within such districts. See Bye-law of Trinity House, London, ap- proved by Order in Council of 21st De- cember, 1871, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 78. (i) Ships passing through Pilotage Dis- tricts.^ 1604. Ships passing through the limits of any pilotage district 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, are, when not carrying passen- gers, exempted from compulsory pilotage * (495) This bye-law in effect supersedes a bye-law of 21st Nov. 1855, of the same corporation, granting to vessels coming from foreign ports in ballast to the United King- dom exemption, under certain limitations, from compulsory pilotage. ' f (496) The Trinity House, London, con- strues the 41st section of the M. S. Act Amendment Act, 1862 (c. 63), as follows : — 1st. That a ship passing through the limits of a pilotage district, on a voyage between two places, both situate out of such district, may enter into a port within such district, and remain there for a time, and sail again to her destination, without being liable to compulsory pilotage, provided she does not load or discharge within the district. 2ndly. That a ship, in the circumstances before men- tioned, does not incur liability to compulsory pilotage by reason of her entering a port within the district to repair or to receive orders (not being bound to such port for orders), or for any temporary purpose, other than loading or discharging. 3rdly. That a ship bound to a port within a pilotage dis- trict for orders, her ultimate destination being indefinite, is not exempt from com- pulsory pilotage, although the place from which she has come may be without the dis- trict, and the port to which she may be ultimately directed may be also out of the district, such ship having in fact at the moment of her calling for orders no port of final destination, and therefore no actual destination beyond the limits of the pilotage district. 4thly. That a ship discharging her cargo at a port within a pilotage district to which she is not bound, and reloading the same cargo under casual circumstances (such as having shifted her cargo at sea, or re- quiring repairs), is not exempted from com- pulsory pilotage, the terms. " loading or dis- charging " used in the 41st section of the act appearing to counsel to signify loading or discharging under any circumstances, or for any purpose. 1364 OWNERS. PartVII. Compulsory Pilotage. in the London District, and in the Trinity- House Outport Districts. See the M. S. Act, 1854 (c. 104), s. 379. 1605. The masters and owners of ships passing through the limits of any pilot- age district in the United Kingdom on their voyages between two places both situate out of such districts, are exempted from any obligation to employ a pilot, or to pay pilotage rates, within such dis- trict; unless such ships are loading or discharging at any place within or above such district on the same river or its tributaries. See the M. S. Act Amend- ment Act, 1862 (c. 63), s. 41. 1606. The masters of vessels passing through the limits of any pilotage dis- trict on their voyage from one port to another, and not bound to any port or place within such limits, nor anchoring therein, are similarly exempted from com- pulsory pilotage. See Regulations of Trinity House, confirmed by Order in Council of 18th Feb. 1854, in 2 Maude & Pollock (4th ed. by Poll. & Bruce), p. 68. 1607. The word "loading," in the M. S. Act Amendment Act, 1862 (c. 63), s. 41, is not confined to taking on board cargo, but also includes taking on board coals for the purpose of the voyage. Therefore where a steamer anchored in Dartmouth Harbour, and took on board twenty tons of coal for the purposes of the voyage, and was bound from a place out of the outport district to a destination also out of it ; held, that she was not exempt from the obligation to employ a pilot. The Winston, 8 P. D. 176 ; 52 L. J. P. D. 72 ; 53 Ibid. 69 ; 9 P. D. C. A. 85; 5 Asp. 143. (j) Ships within their own forts. 1608. The master of any vessel, whilst the same is within the limits of the port or place to which she belongs, the same not being a port or place as to which par- ticular provision has been made for pilots, may pilot his own vessel so long as he navigates her without the aid of any other person than his ordinary crew. See 6 Geo. 4, c. 125, s. 59. 1609. As to the continuance of this exemption notwithstanding this act is re- pealed, see No. 1576, supra. 1610. The provisions of the Pilotage Act, 1825 (c. .125), as to compulsory pilotage and exemptions therefrom, are preserved by the M. S. Act, 1854 (c. 104), s. 353 ; The Hankow, 4 Asp. 97. 1611. A vessel within the limits of her own port at a place where, previous to the passing of the Pilotage Act, 1825, there were provisions in force for the appointment of pilots, is not exempt from compulsory pilotage. Ibid. 1612. The provisions of the Trinity House charter granted by James II., arid of the acts of parliament relating to the pilotage of the rivers Thames and Med- way, and the approaches thereto, are "particular provisions" relating to the port of London, within the meaning of sect. 59 of the 6 Geo. 4, c. 125, so far as that port is contained in the pilotage district. Ibid. 1613. Ships navigating within the limits of the port to which they belong, when not carrying passengers, are ex- empted from compulsory pilotage in the Trinity House, London, and Outport Dis- tricts. See the M. S. Act, 1854 (o, 104), s. 379. 1614. Held, overruling the decision in the court below (see 6 L. T. 613), that the words "navigating within" in the 379th section of the M. S. Act, 1854 (c. 104), mean "being within," and that therefore a vessel belonging to the port of London and coming from a foreign port is exempt from compulsory pilotage in the Thames. The Stettin, B. & L. P. O. 199 ; 31 L. J. Adm. 208 ; 6 L. T. N.S. 613. 1615. A steam vessel belonging to the port of London on a voyage from Bordeaux to London, whilst off the Regent's Canal in the river Thames, came into collision with a brig at anchor, solely by the fault of the pilot of the steamer. Held, that the collision having taken place when the steamer was within the limits of the port to which she belonged, her owners were at such time not compelled to take a pilot, and were therefore answerable for his misconduct. Ibid. 1616. Semble, that but for 6 Geo. 4, c. 125, s. 59, the taking of the pilot would, notwithstanding the M. S. Act, 1854 (c. 104), s. 379, have been under the cir- cumstances compulsory upon the owners. 1617. By 6 Geo. 4, c. 125, s. 59, vessels within the limits of the port to which they belong, the same not being a port or place in relation to which par- ticular provision hath heretofore been made by any act of parliament, or by any charter or charters for the employment of pilots, are exempted from compulsory pilotage. The Killamey, 6 L. T. N.S. 908 ; 1 Lushington, 427. 1618. Held, that the 6 Geo. 3, c. 39, OWNERS. Part VII. Compulsory Pilotage. 1365 having before this enactment made par- ticular provision for the employment of pilots by the masters of inward-bound vessels f romKingston-upon-Hull to G-oole, the exemption is inapplicable to such a vessel. Ibid. 1619. A ship belonging to the port of London, and bound to London from Aus- tralia with passengers, is obliged to em- ploy a pilot by compulsion of law, under the provisions of sect. 59 of the Pilotage Act, 1825 (c. 125), when within the limits of the port of London, by reason of there being at that time "particular provisions " for the appointment of pilots for the rivers Thames and Medway below bridge. ( The Stettin, Br. & Lush. 199; 6 L. T. N.8. 613 ; 1 Asp. 229, not followed. The Kil- larney, Lush. 427 ; 6 L. T. N.S. 908 ; 1 Asp. 238, approved.) The Hankow, 4 P. D. 197 ; 4 Asp. 97. (k) Irish Traders in Thames and Medway. 1620. The master of any Irish trader navigating the Thames and Medway may pilot his own ship so long as he navigates her without the aid of any one but his ordinary crew. See 6 Geo. 4, c. 125, s. 59, and note (494) supra. 1621. As to the continuance of this exemption, notwithstanding the act is repealed, see Nos. 1575 — 1579, p. 1361. (1) Colliers. 1622. The master of any collier may, without being subject to any penalties, pilot his own ship so long as he pilots her without the assistance of any person than the ordinary crew of the ship. See 6 Geo. 4, c. 125, s. 59. 1623. As to the continuance of this exemption, notwithstanding the act is repealed, see Nos. 1575 — 1579, p. 1361. (m) Ships with Stone from the Channel Islands. 1624. The master of any ship or vessel wholly laden with stone from Guernsey, Jersey, Alderney, Sark, or Man, and being the production thereof, may pilot his own vessel so long as he navigates her without the aid of any other person than his ordinary- crew. See 6 Geo. 4, c. 125, s. 59. 1625. As to the continuance of this I exemption, notwithstanding the act is re- pealed, see Nos. 1575—1579, p. 1361. 1626. Ships from Guernsey, Jersey, Alderney, Sark, or Man, wholly laden with stone, the produce of those islands, are, when not carrying passengers,* ex- empted from compulsory pilotage in the Trinity House London Outport Districts. See 6 Geo. 4, c. 125, s. 379. 1627. See also as to the exemption of ships trading between the United King- dom and the Channel Islands,' No. 1603, p. 1363. (n) Ships not exceeding Sixty Tons Burthen. 1628. Ships of not more than sixty tons burthen, when not carrying passen- gers,! shall be exempted from compulsory pilotage in the London District, and in the Trinity House Outport Districts. See the M. S. Act, 1854 (c. 104), s. 379. 1629. The master of any vessel not exceeding the burthen of sixty tons, and having a British register, may pilot his own vessel so long as he navigates her without the aid of any other person than his ordinary crew. See 6 Geo. 4, c. 125, s. 59. 1630. His Majesty may, by any Order in Council, authorize vessels not exceed- ing the burthen of sixty tons, and not having a British register, to be piloted without having a duly-licensed pilot on board upon the same conditions as are by this act imposed on British vessels not exceeding the like burthen. Ibid. s. 60. 1631. As to the continuance of these exemptions, notwithstanding the act of 6 Geo. 4, c. 125, is repealed, see Nos. 1575— 1579, p. 1361. (o) Ships carrying Provisions. 1632. The Trinity House of Deptford Strond may make regulations as to the piloting of ships not having British regis- ters bringing fish, corn, or other provi- sions into the port of London, and which ought to be piloted by their licensed pilots. For the exemption of such ships from any regulations as to pilotage, see 6 Geo. 4, c. 125, s. 51. 1633. As to the continuance of this exemption, notwithstanding the act is re- pealed, see Nos. 1575—1579, p. 1361. * (497) See as to the construction put on these words, c. 5, p. 1355. t (498) See as to the construction put on these words, ibid. 1366 OWNERS. Part VII. Compulsory Pilotage. (p) Masters and Males Part-oioners residing at Dover, Sj'c. 1634. Nothing in this act extends to subject to any penalty the master or mate of any ship being the owner or part- owner thereof, and residing at Dover, Deal, or the Isle of Thanet, for piloting his own ship from any of the places therein mentioned up or down the Thames or Medway, or into or out of any port or place within the jurisdiction of the Cinque Ports. See 6 Geo. 4, c. 125, s. 62. 1635. As to the continuance of this exemption, notwithstanding the act is repealed, seeNos. 1575—1579, p. 1361. 1636. Held, that the above exemption was limited to vessels navigated from Dover, Deal, or the Isle of Thanet. Peake v. Screech, 7 Q. B. 603 ; 9 Jur. 797 ; 14 L. J. Q. B. 133; S. P. Williams v. New- ton, 14 M. & W. 747 ; 15 L. J. Exch. 11. 1637. The 2nd section of the 6 Geo. 4, c. 125, enacts that all vessels sailing as well up and down or upon the rivers Thames or Medway between Orfordness and London Bridge to the Downs, &c. (except as thereinafter provided) shall be piloted hy pilots licensed by the Trinity House. The 58th section im- poses penalties on masters acting as pilots after a licensed pilot has oflered to take charge of the vessel. Sec- tion 62 provides that "nothing in that act contained shall extend or he construed to extend to subject to any penalty the master or mate of any ship or vessel, being the owner or part- owner of such ship or vessel, and residing at Dover, Deal, or the Isle of Thanet, for conducting or piloting such his own ship or vessel from any of the places aforesaid up and down the rivers Thames or Med- way, or into or out of any port or place within the jurisdiction of the Cinque Ports." Held, that the "places afore- said " in this section mean Dover, Deal, and the Isle of Thanet; that therefore the clause exempts from penalties such masters only as navigate their vessels from Dover, Deal, or the Isle of Thanet ; and consequently that the penalties in sect. 58 were recoverable from a master piloting his own vessel on a foreign voyage commencing in the port of Lon- don, although he was a part-owner and resident in the Isle of Thanet. Williams v. Newton, 14 M. & W. 747. (q) Removal of Ships in Port. 1639. When any vessel has been brought into any port in England by any duly- licensed pilot, the master or other person in command thereof, or if in ballast, any person appointed by the owner, master, or owner's agent, may afterwards remove the vessel in such port for the purpose of her entering or leaving any dock, or changing her moorings. See 6 Geo. 4, c. 125, s. 63. 1640. As to the continuance of this exemption, notwithstanding the act is repealed, see Nos. 1575—1579, p. 1361. 1641. Prior to the collision the vessel had, on completing a voyage from India, been brought by a licensed pilot into the St. Katharine's Dock, and having there discharged her cargo, "was at the time of such collision in the course of removal, for the purpose of going out of that dock to a dry dock in the port of London to be repaired,, and was not at such time otherwise navigating or passing upon the Thames. Held, that the circumstance brought the case within the exception in the 63rd section of 6 Geo. 4, c. 125. Lucey v. Ingram, 6 M. & "W". 302. 1642. As to its being unnecessary to employ a licensed pilot to change a ship's moorings, see Rex v. Lambe, 5 T. E. 76 ; Rex v. Neale, 8 T. E. 241. 10. Trinity House Outport Districts. 1. Generally. 1643. The Trinity House Outport Dis- tricts comprise any pilotage district for the appointment of pilots within which no particular provision is made by any act of parliament or charter. See M. S. Act, 1854 (c. 104), s. 370. 1644.* An act of parliament adopting * (499) On the case of Hadgraft v. Hewith (2 Asp. N.8. 573), the learned editor makes the following note: — "It would appear to follow, from this decision, that wherever the appointment of pilots is by the Trinity House, all exemptions and compulsions ex- isting before the M. S. Act, 1854, are con- tinued, and that the existence of an act of parliament or charter under which the Tri- nity House appoint, is not a 'particular provision' within the meaning of the M. S. ' Act, 1854, or the 6 Geo. 4, c. 125, s. 59, so as to continue the exemption or compulsion." OWNERS. Part VII. Compulsory Pilotage. 1367 the general provisions of 6 Geo. 4, c. 125, s. 5, for the appointment of pilots is not a " particular provision " within the meaning of the M. B. Act, 1854 (c. 104), s. 370. Hadgraft v. Hewith, L. E. 10 Q. B. 350; 44 L. J. M. 0. 140: 2 Asp. N.S. 573. 1645. The Ipswich Dock Act, 1852 (c. cxvi), does not therefore prevent the Ipswich District from being a Trinity Outport District. Ibid. 1646. The Trinity House Outport Dis- tricts include the ports of Aberdovey, Beaumaris, Bridgwater, Bridport, Caer- narvon, Carlisle, Colchester, Cowes, Dart- mouth, Exeter, Falmouth, Fleetwood-on- Wyre and Barrow, Fowey, Harwich, Holyhead, Ipswich, Isle of Wight, Lowes- toft, Milford, Neath, Newhaven, Pad- stow, Penzance, Plymouth, Poole, Port- madoc, Portsmouth, Eye, St. Ives(Hayle), Scilly, Shoreham, Southampton, Teign- mouth, Wells, Weymouth, Woodbridge, Yarmouth. Ibid. s. 371 ; and 2 Maude & Pollock on Merc. Sh. (4th ed. by Pollock & Bruce), pp. 111—116. 1647. As to the legal status of the Trinity House Outport Districts, see 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. Ill; and for bye-laws, regulations and rates, see Parliamentary Eeturns as to Pilotage, No. 325 of 1882, pp. 1 86 — 244 ; and for regulations and rates of pilotage for exempted ships be- tween the Nore and Eochester, Ibid. p.186. 2. Compulsion. 1648. Subject to alteration by the Trinity House, and to exemptions in this act, the pilotage districts of the Trinity House within which the employment of pilots is compulsory are the London and Outport Districts, as therein be- fore defined. The master of every ship navigating within any part of such dis- tricts, who, after a qualified pilot has of- fered to take charge of such ship, or signal- led for that purpose, either pilots such ship without a pilotage certificate, or employs an unqualified person to pilot her, shall, in addition to the penalty of double pilot- age, if the Trinity House certify under their common seal that the prosecutor may proceed for the recovery of such addi- tional penalty, incur an additional penalty, not exceeding £5 for every fifty tons bur- den of such ship. See theM. S. Act, 1854 (c. 104), s. 376. 1649. Pilotage is compulsory in the Falmouth district. The Juno, 1 P. D. 135; 45 L. J.P.D. &A. 105; 3 Asp. N.S. 217. 3. Exemptions. 1650. The following ships, when not carrying passengers, are exempted from compulsory pilotage in the London Dis- trict, and in the Trinity House Outport Districts: — (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 Bou- logne ; (4) ships from Guernsey, Jersey, Alderney, Sark, or Man, which are wholly laden with stone, being the product of those islands ; (5) ships navigating with- in the limits of the port to which they belong ; (6) ships passing through the limits of any pilotage district on their voyages between two places, both situate out of such limits,, and not being bound to any place within such limits, nor an- choring therein. See the M. S. Act, 1854 (c. 104), s. 379; and Bye-Law* of the Trinity House, London, confirmed by Order in Council, 16th July, 1857.f 1651. The masters and owners of ves- sels passing through the limits of any pilotage district in the United Kingdom on their voyages between two places, both situate out of such districts, shall be exempted from any obligation to em- ploy a pilot within such district, or to pay pilotage rates when not employing a pilot within such district. Provided that the exemption contained in this sec- tion shall not apply to ships loading or discharging at any place within such district, or at any place situate above such district on the same river or its tributaries. See the M. S. Act, 1862 (c. 63), s. 41. 1652. All ships navigating in ballast between any ports or places in the United Kingdom, when not carrying passengers, * (500) This bye-law in effect supersedes a bye-law of 21st Nov. 1856, of the same cor- poration, granting to vessels coming from foreign ports in ballast to the United King- dom exemption from compulsory pilotage under certain limitations. t (501) See as to these separately, Nos. 1574—1579, pp. 1361—1366. 1368 OWNERS. Part VII. Compulsory PUotage. are exempt from compulsory pilotage ■within the pilotage jurisdiction of the London Trinity House. See their Bye- law, confirmed by Order in Council, July 25, 1861. 1654. All ships trading from any port or place in Great Britain, within the London District or any of the Trinity House Outport Districts to the port of Brest, in France, or any port or place in Europe north and east of Brest, or to the islands of Guernsey, Jersey, Alderney, Sark or Man, or from Brest or any port or place in Europe north and east of Brest, or from the islands of Guernsey, Jersey, Alderney, Sark or Man to any port or place in Great Britain within either of the said districts, when not carrying passengers, shall be exempted from compulsory pilotage within such districts. See Order in Council of the 21st December, 1871; 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 78. 1655. No master of a vessel is compel- lable to take a pilot within the Beaumaris District when not coming in or going out of port. See Parliamentary Return as to Pilotage, No. 516 of 1855, p. 23. 1656. No master of a vessel is compel- lable to take a pilot for Mount's Bay and Penzance within the Penzance District until he comes within a line drawn from St. Clement's Isle to Trewavas Head. Ibid. p. 61. 1657. Pilotage is not compulsory for vessels proceeding to Tor Bay, but should the master of any vessel choose to employ a pilot to the anchorage therein, the pilot- age shall be two-thirds less than that chargeable to vessels proceeding to the harbour of Brixham and Torquay. Ibid. No. 276 of 1874, p. 16. 1658. See as to exemptions in the Lon- don District applicable to these districts also, Nos. 1574—1642, pp. 1361—1366. 4. Aberdovey. 1659. Definition of limits : from two miles beyond the outside of the bar, off the entrance of the river Dovey, up the river to Aberdovey, and vice versd. See Parliamentary Return as to Pilotage, No. 325 of 1882, p. 195 ; and No. 264 of 1863 ; and see Trinity House Regulations of November, 1862. 5. Beaumaris. 1660. Definition of limits: from Port Dinorwic or Moel-y-Don through the Swellies to a line drawn from Great Orme's Head to Point Linas, and vice versd r and into and out of all ports and places within those places. See P. R. No. 325 of _ 1882, p. 196; No. 206 of 1870; and Trinity House Regulations of December, 1869. See also No. 1655, supra. 6. Bridgwater. 1661. The corporation of Bristol and the pilotage authorities of Cardiff, New- port, and Gloucester having agreed that the limits of the Trinity House Outport District for the port of Bridgwater should be altered and extended, the limits of the Trinity House Outport District for the port of Bridgwater are all such parts of the Bristol Channel and adjacent rivers and creeks as lie on the south side of, and are comprised within an imaginary straight line drawn from Anchor Head on the east to Watchet on the west, both in Somersetshire. See Bye-laws of these Pilotage Authorities, approved by Order in Council of 17th May, 1867, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 82 ; Trinity House Regulations of April, 1875; P. R. No. 325 of 1882, p. 197; and No. 1766 and note (527), p. 1377. 1662. Sub-commissioners of pilotage are appointed for the port of Bridgwater by the Trinity House under 8 & 9 Viet., c. lxxxix. ss. 70 — 76. 7. Bridport. 1663. Definition of limits : from sea into the harbour of Bridport, and from the harbour to sea. P. R. No. 325 of 1882, p. 199 ; and see Pilotage Commis- sion, 1870; P. R. No. 276 of 1875 ; and Trinity House Regulations of July, 1874. 8. Caernarvon. . 1664. Definition of limits: from the outwardmost buoy on the Bar of Caer- narvon, into and out of Caernarvon har- bour, and in the Menai Strait to Port Dinorwic, or Moel-y-Don, and vice versd, and into and out of all ports and places within those limits. See P. R. No. 325 of 1882, p. 199; Pilotage Commission, 1870 ; P. R. No. 276 of 1875 ; and Trinity . House Regulations" of July, 1874. 9. Carlisle. 1665. Definition of HmitiTpiinthe Eng- lish Channel of the Solway ]^ijji be- tween the anchorage ground off the OWNERS. Part VII. Compulsory Pilotage. 1369 bour of Maryport and the entrance of Port Silloth and Annan Water Foot from the said Frith* P. E. No. 325 of 1882, p. 201. 10. Colchester. 1666. Definition of limits : from a line drawn from the Naze Tower to the buoy of the Gunneet up the Colne river to Colchester and vice versd.] Ibid. 11. Cowes. 1667. This is now comprised in the Isle of Wight district. See Nos. 1681, 1682, infra. 12. Dartmouth. 1668. Definition of limits : from Bob's Nose to the Bolt Head and vice versd, and into and out of all ports and places within those limits.J P. E. No. 325 of 1882, p. 202. 1669. See also No. 1657, supra. 13. Exeter. 1670. Definition of limits : from Lyme to Bob's Nose, and vice versd, and to and from, and into and out of, all ports and places within those limits. § Ibid. p. 204. 14. Falmouth. 1671. Definition of limits: from the Dodmanto the Lizard and vice versd, and to and from, and into and out of, all ports and places within those limits. Ibid. p. 207. 1672. Pilotage is compulsory within this district. See The Juno, No. 1649, p. 1367. 15. Fleetwood-on-Wyre and Barrow. 1673. Definition of limits : from sea (that is, Morecambe Bay Light Ship) into and out of the harbour of Fleetwood- bn-Wyre, and along the coast from Form- by Point to Havering Point of Dudden.|| P. E. No. 325 of 1882, p. 208. 1674. No pilot shall lay a vessel aground in the harbour of Barrow, with- out a written order from the officer in charge of such vessel. Ibid. p. 209, reg. 9. 16. Fowey. 1675. Definition of limits : from Looe (inclusive) to the Dodman, and into and out of all ports and places within those limits. Ibid. p. 210. 17. Harwich. 1676. Definition of limits : to and from the Wallet, Hoseley Bay, or the Sunk Light, into and out of Harwich harbour, and up the river Stour to Manningtree, and vice versd, and to and from all ports and places within those limits. Ibid. p. 211. 18. Holyhead. 1677. Definition of limits : to and from the anchorages at Great Orme's Head, along the coast of the Isle of Anglesea and Wales, as far as Bardsey Island, and to and from, and into and out of, all ports and places within those limits, except the bar and harbour of Caernarvon, and the Swellies.^f Ibid. p. 212. 19. Ipswich. 1678. Definition of limits : from Ips- wich quays to Harwich harbour, and vice versd. Ibid. p. 213. 1679. See also as to this district, 1 Vict. c. lxxiv, ss. 121 — 130, and for regu- lations for conducting the pilot service, 1680. See also No. 1645, p. 1367. 20. Isle of Wight. 1681. Definition of limits: from the Owers, within and without the Isle of Wight to Peverell, and vice versd, and to and from, and into and out of, all ports and places within those limits, excepting those within the Poole and Southampton Districts. The pilots for Cowes and Ports- mouth may supersede London or Cinque Ports pilots licensed for the Isle of Wight> arriving near the channels leading to the * (502) The sum of 5s. per day is to be allowed the pilot for every day he may be detained on board. P. E. No. 325 of 1882, p. 201. t (503) London pilots are to be paid from Orfordness to Eastness 6«. per foot of the draft of the vessel piloted. Ibid. % (504) The pilotage to Torbay is not com puisory. Ibid. p. 203. p. § (505) A pilot taken on board off the Bill of Portland or the Start is to receive addi- tional remuneration beyond the pilotage from Bob's Nose to Lyme. Ibid. p. 205. || (506) A pilot employed whilst at anchor is to be paid 7s. 6d. per day. Ibid. ^[ (507) Pilot detained on board in conse- quence of quarantine, &c. is to receive Is. 6d. per day. Ibid. 4 T 1370 OWNERS. Part VII. Compulsory Pilotage. Isle of Wight ports and harbours ; but no master of a vessel is compelled to take an Isle of Wight pilot until at St. Helen's, if piloted thereto by a London or Cinque Ports pilot. See P. E. No. 325 of 1882, p. 215. 1682. See, for rates for shifting berths in Portsmouth or Cowes Harbours, ibid. 21. Lowestoft. 1683. Definition of limits: from, in, to and out of the harbour. Ibid. p. 218. See also as to this district, the Rules and Regulations of November, 1862, P. R. No. 264 of 1863, p. 30; and Trinity House Regulations of July, 1878. 22. Maldon. 1683a. Definition of limits : from aline drawn from the Naze Tower to the buoy of the Gunfleet up the Blackwater River to Maldon, and vice versd. See Trinity House Regulations, July, 1874. 1683J. See for rates of pilotage, ibid. 23. Milford. 1684. Definition of limits : from Caldy Island along the coast of St. David's Head, and from thence to Cardigan Island, and vice versd, and to and from, and into and out of, all ports and places within those limits. See P. R. No. 325 of 1882, p. 220; and Trinity House Regulations of November, 1862. 24. Neath. 1685. Definition of limits: from the outside of Neath Bar into the port and harbour of Neath, and vice versd. See P. R. No. 325 of 1882, p. 222. See also as to this district, 6 & 7 Vict. c. lxxi, ss. 182 — 187; and Trinity House Regu- lations of July, 1874. 1686. Save as by this act provided the provisions of 47 Geo. 3, sess. 2, c. xxxiii. * (508) Question as to whether pilotage was of the same nature.as in the other Trinity House districts for vessels in ballasts raised in The Ardeer, Adm. Div. 1877, but not de- cided, see p. 1377. t (509) The coast pilotage within the New- haven district is optional (Trinity House Regulations, Apr! 1879). Ships taken charge of in distress are to pay according to circum- stances, to be settled by the sub-commis- sioners of the port. % (510) Claims by pilots for services ren- dered in distress are not to be made without shall not be altered, c. lxxi. s. 187.* See 6 & 7 Vict. 25. Nevohaven.\ 1687. Definition of limits : from Dun- geness westward to Brighthelmstone (in- clusive), and from Brighthelmstone (in- clusive) to Dungeness ; and to and from, and into and out of, all ports and places within those limits. See P. R. No. 325 of 1882, p. 223. 26. Padstow.% 1688. Definition of limits : between the Mouls eastward of Pentyre Point and the Quays westward of Trevose Head. Ibid. p. 224. 27. Penzance. § 1689. Definition of limits : from the Lizard to Cape Cornwall, and vice versd, and to and from, and into and out of, all ports and places within those limits. Ibid. p. 225. See also No. 1656, p. 1368. 28. Plymouth. 1690. Definition of limits : to the west- ward to Looe, and eastward to the Start; and to and from, and into and out of, all ports and places within those limits. See P. R. No. 325 of 1882, p. 227. 1691. Rate for lay-days 7s. 6d. a day. Ibid. \1 692. All ships drawing less than eight feet are to pay the same amount of pilot- age as if they were of that draft. Ibid. 1693. Ships returning by distress of weather, contrary winds, or accident into ports in the Plymouth district pay half pilotage. Ibid. 29. Poole. 1694. Definition of limits: from Christ- church (inclusive) to St. Alban's Head, and vice versd, and to and from, and into the previous sanction of the sub-commis- sioners of the port ; and vessels piloted from, Padstow to sea, and returning in consequence of distress of weather, contrary winds, or ac- cident within thirty-six hours into harbour are to pay half pilotage only. P. R. No. 325 of 1882, p. 225. § (oil) No master of a vessel is compelled to take a pilot for Mount Bay and Penzance within this district until he comes within a line drawn from St. Clement's Isle to Tre- waves Head. Ibid. p. 226. OWNERS. Part VII. Compulsory Pilotage. 1371 and out of, all ports and places within those limits. Ibid. p. 228 ; and see Trinity House Regulations of Nov. 1862. 30. Portmadoc. 1695. Definition of limits : from sea into the harbour of Portmadoc, and from the harbour to sea. See P. E. No. 325 of 1882, p. 228. 31. Portsmouth. 1696. This is now comprised in the Isle of Wight district. See Nos. 1681, 1682, supra. There are no recent Parliamen- tary Eeturns as to this port. 32. Rye. 1697. Definition of limits : into and out of the port and harbour of Eye, and along the coast, between Dungeness and Beachey Head, and to and from all an- chorages and places within those limits. See P. E. No. 325 of 1882, p. 230. 1698. Ships taken charge of in distress are to pay according to circumstances to be settled by the commissioners.* Ibid. 33. St. Ives, Hayle. 1699. Limits of pilotage district : from Cape Cornwall to Trevose Head, and vice versd ; and to and from, and into and out of, all ports and places within those limits.f Ibid. p. 231. 34. Scilly. 1700. Definition of limits : to and from, and into and out of, all ports and places in and about the Islands of Scilly.J Ibid. p. 232. 35. Shoreham. 1701. Definition of limits: fromBright- helmstone (exclusive) westward to the Owers, and from the Owers eastward to Brighthelmstone (exclusive), and to and from, and into and out of, all ports and places within those limits.§ Ibid. p. 234. 1702. The rates are chargeable both inwards and outwards ; but vessels in- ward bound not boarded until within the bar at the entrance of the harbour are to be charged only one-fourth the usual rates. Ships going into Shoreham and unloading near the harbour's mouth are to be subject to half pilotage only ; but if such ships are afterwards removed by pilots to any dock or wharf near the town for the purpose of taking in a cargo, the full pilotage is to be due. Ibid. 36. Southampton. 1703. Definition of limits : from a line drawn from Lepe Buoy to Lee Point to all ports and places within the Southamp- ton Water, and from all ports and places within the Southampton Water to sea.|| Ibid. p. 235. See also Trinity House Ee- gulations of April, 1875. 37. Teignmouth. 1704. Definition of limits : from Lyme to Bob's Nose, and vice versd, and into and out of all ports and places within those limits, excepting the harbour of Exmouth.^ See P. E. No. 325 of 1882, p. 236 ; and Trinity House Eegulations of November, 1862. 38. Wells. 1705. Definition of limits : from Burn- ham Overy (exclusive) westward, to Mor- ston Sluice (exclusive) eastward, and vice versd, and into and out of the harbour of Wells. Ibid. p. 237, and Ibid. 39. Weymouth. 1706. Definition of limits : from St. Al- ban's Head to Lyme, and vice versd, and to and from, and into and out of, all ports and places within those limits.** Ibid. p. 238, and Ibid. 1st May, 1863. * (512) Wind-bound vessels entering the port are subject to two-thirds only of the pilotage rates. Ibid. p. 230. t (513) Pilots detained on board vessels under any circumstances are to be paid 6s. per day of twenty-four hours. 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 116. X (514) A pilot remaining on board at the master's request is to receive 10s. 6d. for every twenty-four hours or any part thereof. P. E. No. 325 of 1882, p, 232. § (515) See notes to Newhaven, s. 25, supra. The rates for this district are for harbour pilotage only. Ibid. p. 234. || (516) Lay-days 7s. 6d. per day, not in- cluding the days of coming in or going out. Ibid. p. 235. f (517) See notes to Exeter, s. 13, supra. The pilots are to moor vessels to the satisfaction of the harbour master as well as of the master or owner. Ibid. p. 236. ** (518) The pilot of any vessel shall, if re- quired by the owner or master, provide a boat with four men to attend her from the roads to the quays, or from the quays to the roads, for which service each man is to be paid 4«. per tide, the owner of the boat to be paid the same as a man. Ibid. p. 239. 4x2 1372 OWNERS. Part VII. C Compulsory Pilotage. 40. Woodbridge. 1707. Definition of limits: from sea over the Bar into Bawdsey Haven, and up the haven, and the river Deben, to Woodbridge, and vice versd. See P. B. No. 325 of 1882, p. 239 ; and Trinity House Eegulations of November, 1862. 41 . Yarmouth. 1708. Definition of limits : from Yar- mouth to and from the Dudgeon Light Vessel, and from Yarmouth to and from Orfordness; thence across the Kentish Knock to and from the Downs, and into and out of the several harbours and road- steads within those limits. Ibid. p. 240, and Ibid. June, 1 873. 11. Trinity House English Channel District. 1709. The Trinity House English Channel District,- comprises the seas be- tween Dungeness and the Isle of Wight. See the M. S. Act, 1854 (c. 104), s. 370. 1710. Subject to alteration by the Trinity House, and to exemptions in this act, the pilotage districts of the Trinity House within which the employment of pilots is compulsory are the London and Outport Districts as thereinbefore de- fined * Ibid. s. 376. 1711. See also the Outport Districts, Isle of Wight, s. 20, p. 1369 ; Newhaven, s. 25, p. 1370; and Shoreham, s. 35, p. 1371. 12. Trinity House, Hull. 1 . Generally. 1712. The Trinity House of Kingston- upon-Hull is required to license pilots for conducting vessels into and out of the port of Great Grimsby and upon any part of the river Humber below the port of Kingston-upon-Hull, and so far out at sea as to bring the North Ness of Dim- Kngton, on the coast of Holderness, to bear or be seen clear of the land to the southward of it, so as to pass clear of the New Land, and also so far along the coast to the northward as the North Ness * (519) It seems, therefore, that pilotage is not compulsory in the English Channel dis- trict. (520) The pilotage is voluntary except for home-trade ships carrying passengers (see The Temora, Lush. 17; No. 1503, p. 1355; The General Steam Navigation Co. v. The of Dimlington and to the southward' as the headland called Donna Nook. See the Hull Pilot Act (2 & 3 Will. 4, c. cv.), s. 89. 1713. The Trinity House of Kingston- upon-Hull is the authority to license Humber pilots : but pilotage commis- sioners are appointed for the port of Kingston-upon-Hull and the Humber, Ibid. s. 22. 1714. The Trinity House of Kingston- upon-Hull is the pilotage authority to license pilots for the port of Grimsby. See 12 & 13 Viet. c. lxxxi. s. 251. 1715. Por the general bye-laws made by the Trinity House of Kingston-upon- Hull for the port and all its members, see P. E. No. 325 of 1882, pp. 36—37. 1716. And see for rates of pilotage charged in this port and its members, ibid. pp. 44 — 58. See also tit. Pilots, c. 7. 2. Compulsion. 1717. Every master of any ship out- ward bound from the port of Kingston- upon-Hull, required by this act to take a pilot, must apply at the pilot office, whereupon the commodore of pilots must appoint a pilot to take charge of the ship ; and any master of any such ship, or of any ship outward bound required to take a pilot, who himself acts as pilot, or employs as a pilot any unlicensed person within the limits for which pilots are licensed under this act, or being in- ward bound himself acts as pilot, or employs as a pilot within those limits any unlicensed person, after any Humber pilot has offered to take charge, or made a signal for that purpose ; penalty, double pilotage, and £5 for every fifty tons bur- then of the ship if the commissioners proceed for the further penalty. See 2 & 3 Will. 4, c. cv. s. 34. 1718. Por provisions requiring masters - of vessels inward bound and liable to pilotage on cpming within pilot limits, to display a signal for pilot, and facilitate his coming on board (penalty for default, double pilotage). Ibid. s. 36. 1719. An unlicensed pilot, after a duly- licensed pilot had offered his services, London and Edinburgh Steam Co., 2 Ex. Div. 467) ; and not having on board a master or mate with a pilotage certificate, nor ex- empted under the M. S. Act, 1862 (c. 63), s. 41, for which see No. 1605, p. 1364. See 2 Maude & Poll. (4th ed. by Poll. & Bruce), pp. 110, 111. OWNERS. Part VII. Compulsory "Pilotage. 1373 took charge in the river Ouse of the A., bound from Goole to Hamburgh. Held, in a qui lam action for penalties against the unlicensed pilot, under the charters of the Trinity House, Hull, of 23 Eliz., and 13 Car. 2, and 6 Geo. 4, c. 125, that the Trinity House, Hull, had authority under those charters to license pilots from Goole, and that the defendant was pro- perly convicted. Beilby v. Baper, 3 B. & A. 284. 1720. Held, that by 52 Geo. 3, c. 39 ; 6 Geo. 4, c. 125; 2 & 3 Will. 4, c. cv, s. 52, and the M. 8. Act, 1854, together, pilotage is compulsory upon masters of inward-bound vessels from Kingston- upon-Hull to Goole, provided that neither such master nor mate possesses a pilotage certificate. The Killarney, 6 L. T. N.8. 908 ; 1 Lushington, 427. 1721. By 6 Geo. 4, c. 125, s. 59, vessels within the limits of the port to which they belong, the same not being a port or place in relation to which particular provision hath heretofore been made by any act of parliament, or by any charter or charters for the employment of pilots, are exempted from compulsory pilotage. Ibid. 1722. Held, that the 6 Geo. 3, c. 39, having before this enactment made parti- cular provision for the employment of pilots by the masters of inward-bound vessels from Kingston-upon- Hull to Goole, the exemption is inapplicable to such a varqaI I bid 1723. Under sect. 22 of 2 & 3 Will. 4, c. cv, pilotage is not compulsory where a vessel is being towed from one dock to another, both being within the port of Kingston-upon-Hull. The Maria, L. E. 1 A. & E. 358 ; 2 Asp. 528. 1 724. A collision occurred in the Hum- ber Dock, Hull, between a fly-boat and a Danish schooner bound for the Princes Dock. The schooner was in charge of a licensed Humber pilot, who had taken the charge of her at the Island pier from another licensed pilot, who had brought her in from sea. One sum was paid for the whole pilotage service. Held, that on the construction of the Hull Pilot Act, 1833 (c. cv), pilotage was compulsory, and that the change of pilots did not deter- mine the compulsory pilotage. The Big- borgs Minde, 8 P. D. 132; 52 L. J. P. D. 74 ; 5 Asp. 123. 3. Exemption. 1725. Nothing in this act obliges the master or person in command of any ship employed in the coasting trade of Great Britain or Ireland, whether laden or in ballast, or of any ship or vessel of less than six feet draught of water, and the property of British subjects; or of any ship putting into the Humber for shelter, or for obtaining stores or provisions only, to employ a pilot, nor to prevent any owner, master, mate, or other person belonging to any ship inward bound from piloting her into and up the Humber in case no Humber pilot shall be ready, and offer to pilot her, nor to prevent any person from assisting any ship in distress. See 2 & 3 Will. 4, c. cv, s. 24. 1726. Ships not exceeding sixty tons burden are exempt from pilotage between the port of Goole and Hull Roads, and this exemption is extended to ships not exceeding 150 tons register, and to ships not exceeding ten feet draught of water. See Bye-Law of Trinity House, Hull, approved by Order in Council of 20 Nov. 1873, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 83. See also Order in Council, 3 Sept. 1845, exempting small foreign vessels. 1727. Upon the construction of 2 & 3 Will. 4, c. cv, held, that pilotage of inward- bound vessels from Kingston-upon-Hull to Goole is not rendered compulsory by that act. Semlle, the charters granted by Queen Elizabeth and Charles 2nd to the Corporation of Kingston-upon-Hull do not apply to inward-bound vessels from that place to Goole, so as to render compulsory the pilotage of such vessels. The case of Beilby v. Baper (3 B. & A. 284) is applicable only to such vessels when outward-bound. But held, that by 52 Geo. 3, c. 39 ; 6 Geo. 4, c. 125 ; 2 & 3 Will. 4, c. cv, s. 52 ; and the M. S. Act, 1854, together, pilotage is compulsory upon masters of inward-bound vessels from Kingston-upon-Hull to Goole, "pro- vided that neither such master nor mate possesses a pilotage certificate. The Killarney, 1 Asp. 238. 1728. By 6 Geo. 4, c. 125, s. 59, vessels within the limits of the port to which they belong, the same not being a port or place in relation to which particular provision hath heretofore been made by any act of parliament, or by any charter or charters for the employment of pilots, are ex- empted from compulsory pilotage. Held, that the 6 Geo. 3, c. 39, having before the enactment made particular provision for the employment of pilots by the mas- ters of inward-bound vessels from King- ston-upon-Hull to Goole, the exemption 1374 OWNERS. Part VII. Compulsory Pilotage. is inapplicable to such, a vessel. The power to license pilots does not per se render the pilotage compulsory. The Killarney, 1 Asp. 328. 1729. The employment of a Humber pilot is not compulsory upon a vessel ■which is being towed from one dock to another in the port of Hull, as a vessel is not, in such circumstances, either passing " into or out of" the port of Hull within the terms of sect. 22 of the Hull Pilot Act, or "bound to or from the port" within the terms of sect. 89 of the act. The Maria, L. E. 1 Adm. & E. 358. See also No. 1549, p. 1358. 4. Port of Gainsborough. 1730. For the General Bye-laws of the Trinity House, Hull, applying to this port, see P. E. No. 325 of 1882, pp. 36— 37 ; and for rates, ibid. p. 54. 1731. For provisions as to the appoint- ment by the Trinity House of Kingston- upon-Hull of sub-commissioners of pilot- age for this port, and for the byeJaws issued by the Trinity House for the guid- ance of such sub-commissioners, ibid.; and. 6 Geo. 4, c. 125, s. 6; and. the M. S. Act, 1854 (c. 104), s. 387. 5. Port of Goole. 1732. The pilots shall take charge of ships and vessels inwards from Hull Eoads, and outwards from the port of Goole to Hull Eoads. P. E. No. 325 of 1882, p. 72, Bye-law 3. 1733. See for the bye-laws of the Trinity House, Hull, for this port, ibid. pp. 31, 32. 1734. For provisions as to the appoint- ment by the Trinity House of Kingston- upon-Hull of sub -commissioners of pilot- age for this port, and for the bye-laws issue'd by the Trinity House . for the guidance of such sub-commissioners, ibid. ; and 2 & 3 Will. 4, c. cv, s. 52 ; and the M. 8. Act, 1854 (c. 104), s. 387. 1735. Goole was first constituted a port in the year 1828. See The Hull Dock Co. v. Brown, 2 B. & Ad. 52. 1736. Held, that the description of the port of Hull, in the charters of 23 Eliz. and 13 Oar. 2, includes the port of Goole. Beilby v. Roper, 3 B. & Ad. 286. 6. The Humber. 1737. For the bye-laws as to pilotage in the Eiver Humber, see P, E. No. 325 of 1882, pp. 30, 31, 7. Port of Spalding . 1738. The pilots shall take charge of vessels inwards from the Welland Setway at sea to Spalding High Bridge, and out- wards from that high bridge to the Setway ; and each ship or vessel shall be brought up from the Setway, if re- quired by the pilots, in their regular turns. Ibid. p. 35, Bye-law 3. 1739. For the bye-laws of the Trinity House, Hull, for this port, ibid. pp. 34, 35. 1740. For provisions as to the appoint- ment by the Trinity House of Kingston- upon-Hull of sub-commissioners of pilot- age for this port, and for the bye-laws issued by the Trinity House for the guidance of such sub-commissioners, ibid. ; and 6 Geo. 4, c. 125, s. 6 ; and the M. S. Act, 1854 (c. 104), s. 387. 8. Port of Wisbech. 1741. The pilots shall take charge of vessels into and out of the port and har- bour of Wisbech and the waters thereof, andfrom the town of Wisbech through the Cross Keys Bridge to the lower roads at sea outwards, and from the said lower roads at sea through the Cross Keys Bridge to the town of Wisbech inwards, and from and to all intermediate places between the said town and the said lower roads ; and each ship or vessel shall be J brought up from the Eye or from the said~- lower roads, if required by the pilots, in regular turns. See P. E. No. 325 of 1882, p. 33. 1742. See for the bye-laws of the Trinity House, Hull, for this port, ibid. pp. 33, 34. ~ 1 1743. For provisions as to the appoint- ment by the Trinity House of Kingston- upon-Hull of sub-commissioners of pilot- age for this port, and for their bye-laws for the guidance of such sub-commis- sioners, ibid. ; and 6 Geo. 4, c. 125, s. 6 ; and the M. S. Act, 1854 (c. 104), s. 387. 9. East Coast Pilotage District. 1744. The charters of the Trinity House of Kingston-upon-Hull give that corporation power to license pilots to conduct ships and vessels " from the Humber to cross the seas." The licences held by some of the younger brethren of the Trinity House of Kingston-upo% Hull enable their holders to act as pilots from the Humber north to Flamborough ; Head, &c, up to Leith Eoads ; east to tike OWNERS. Part VII. Compulsory Pilotage. 1375 Naze of Norway, through the Cattegat, the Sound and Baltic to Stockholm, Cron- stadt, Dantzic, Eiga, to the Elbe and Heligoland; and south through Yarmouth Eoads into the Downs, and through Yar- mouth Eoads and the Swin and up to the Nore. See P. E. No. 269 of 1877; for rates, see P. E. No. 325 of 1882, p. 46. 10. Exemption. 1744a. Pilotage is voluntary outside the Humber district. Ibid. 13. Trinity House, Newcastle- upon-Tyne.* 1. Generally. 1745. The Corporation of the Trinity House of Newcastle-upon-Tyne are au- thorized to licence pilots for the port. See 41 Geo. 3, c. lxxxvi. Foreign ships are obliged to employ a licensed pilot there, but British ships are not obliged to do so. Ibid. s. 6.f 1746. The pilotage jurisdiction of the Trinity House of Newcastle-on-Tyne for- merly extended over the Eiver Tyne, and into and out the port of Newcastle-on- Tyne, and the 6reeks and members be- longing thereto. The Hartlepool Pilot- age Order, 1864, the Tyne Pilotage Order, 1865, and the Sunderland Pilotage Order, 1865, have, however, transferred the pilotage jurisdiction, of the Trinity House of Newcastle over the several ports and areas mentioned in such orders respec- tively to Pilotage Commissioners ap- pointed under their provisions; and the Trinity House of Newcastle-upon-Tyne consequently now only retains pilotage jurisdiction over such ports and places within its ancient jurisdiction as are not comprehended in the operation of such orders. See Hartlepool Pilotage Order Confirmation Act, 1864 (c. 58), s. 11 ; Sunderland Order Confirmation Act, 1865 (c. 59), s. 9 ; Tyne Pilotage Order Con- firmation Act, 1865 (c. 44), s. 11; and the Tyne Pilotage Amendment Act, 1867 (c. 78) ; and 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 1 1 8. The transfer took place in January, 1883. See P. E. No 325 of 1882, p. 82. 1747. The bye-laws made by the cor- poration of the. Trinity House of New- castle-on-Tyne for the regulation of the sea and river pilots of the ports within their jurisdiction, namely, Whitby, Seaham Harbour, Blyth, Amble, Aln- mouth, North Sunderland, and Holy Island, approved. See Order in Council of 9th February, 1883, gazetted 14th February. For the bye-laws, see the Schedule to that Order in Council. 1747a. The bye-laws are the same as those made by the Tyne Pilotage Com- missioners for the Tyne. See P. E. No. 325 of 1882, p. 82. 2. Compulsion. 1748. The owners or masters of any foreign ships coming into or departing from the port of Newcastle, or any of the creeks or members thereto, are required to receive and employ in the piloting of their ships pilots licensed by the New- castle Trinity House. ; and if they neglect or refuse to do so, they are nevertheless bound to pay pilotage. See 41 Geo. 3, c. lxxxvi, s. 6.f 1749. All differential dues cease on and after the first day of January, 1862. See the Harbours and Passing Tolls, &c. Act, 1861 (c. 47), s. 10. 1750. The expression "differential dues" includes any dues, rates, or taxes levied on foreign ships, or on goods car- ried in foreign ships, which are not levied in like circumstances on British ships, or on goods' carried in British ships ; and also any excess of dues, rates, or taxes levied on foreign ships, or on goods car- ried in foreign ships, over those levied under like circumstances on British ships, * (521) The members of the port of New- castle-on-Tyne are Middleborough and the Tees, Blyth, Seaham, Holy Island, "Whitby, Warkworth, Amble, Alnmouth, and North Sunderland. See 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 118. t (522) Held, that the provisions of sect. 6 of the local act (41 Geo. 3, o. lxxxvi) relat- ing to pilotage remain in force, and are un- affected by any of the general acts of parlia- ment, viz. the 6 Geo. 4, c. 125, ss. 58, 59, 89; the M. S. Act, 1854 (c. 104), ss. 332, 353, 388; the Harbour and Passing Tolls Act, 1861 (c. 47), ss. 2, 10 ; the M. S. Act, 1862 (c. 63), s. 39 ; Huskisson's Act, 4 Geo. 4 (c. lxxvii), s. 5; the Tyne Pilotage Order Confirmation Act, 1865 (c. 44), or by the Convention be- tween this country and Sweden and Norway of March, 1826. The Johan Sverdrup, New- castle-upon-Tyne County Court, L. T. of 31st Oct. 1885, p. 441. 1376 OWNERS. Part VII. Compulsory Pilotage. or goods carried in British ships, excepting such duties as the Commissioners of Cus- toms may he empowered to levy for the use of her Majesty under any act of par- liament, in the events therein mentioned. See the Harhours and Passing Tolls, &c. Act, 1861 (c. 47), s. 1. But see The Vesta, Nos. 1589—1591, p. 1362. 1751. The master of a vessel having on board a licensed pilot, appointed by the Trinity House of Newcastle-upon- Tyne, under the local act, 41 Geo. 3, c. lxxxvi, s. 6, held, not entitled to the protection of the 55th section of the Ge- neral Pilot Act, 6 Geo. 4, c. 125. Dodds v. Embleton, 9 D. & E. 27. 1752: Prior to the Harbours and Pass- ing Tolls, &c. Act, 1861, the owners of a foreign vessel which while proceeding up the river Tyne with a duly-licensed pilot on board, under the provisions of the Newcastle Pilot Act (41 Geo. 3, c. lxxxvi), came into collision with another vessel, held, but without costs, not respon- sible for damage in consequence of that collision, the collision being held to be occasioned by the default of the pilot, and the employment of him to be com- pulsory on the owners. The Maria, 1 W. Eob. 95. 3. Exemption. 1753. The owners or masters of British ships or other vessels coming into or de- parting from the port of Newcastle, or any of the creeks or members thereof, are not obliged to employ a pilot if not aminded to do so. Se*e 41 Geo. 3, c. lxxxvi, s.6* 1753a. Section 58 of 6 Geo. 4, c. 125, the effect of which is preserved by the M. S. Act, 1854 (c. 104), s. 353, does not make it compulsory on the owners or masters of British vessels to employ pilots while navigating the Tyne. And their exemption under the local act of 41 Geo. 3, c. lxxxvi, s. 6, remains in force, and the owner is not protected by s. 38 of the M. 8. Act, 1854 (c. 104). {Dodds v. Embleton, 9 D. & E. 27, affirmed.) The Tyne Improvement Commissioners v. The General Steam Navigation Company, L.E. 2 Q. B. (Ex. Ch.) 65; 36 L. J. Q. B. (Ex. Ch.) 22; 2 Asp. 431 ; 8 B. & S. 66. 14. Port of Arundel. 1 . Generally. 1754. See 6 Geo. 2, c. 12; 33 Geo. 3, c. 100 ; and 6 Geo. 4, c. clxx ; and Bye- Laws. See Parliamentary Eeturns as to Pilotage, No. 516 of 1855, p. 84; No. 174 of 1858, p. 70; No. 243 of 1861, p. 63; and No. 269 of 1877 ; also Bye-laws and Eegulations of 6th October, 1864, set out in P. E. No. 325 of 1882, p. 1. 1755. The master of any vessel of thirty tons register or upwards, whether in- ward or outward bound into the har- bour of Littlehampton, must employ a pilot, unless her master or mate holds a pilotage certificate. Penalty, £5. See P. E. as to Pilotage, No. 269 of 1877. 2. Compulsion and Exemption. 1755a. The pilotage for this port is com- pulsory, except for vessels under 30 tons burthen. Ibid. No. 325 of 1882, p. l.f 15. Port of Berwick-upon- Tweed. 1. Generally. 1756. See 48 Geo. 3, c. 104, repealed; 57 Geo. 3, c. lxx, s. 45 ; 25 Vict. c. xxxi, ss. 46 — 65 ; and Bye-laws. See P. E. No. 325 of 1882, p. 2 ; and Eegulations of January, 1833. 1757. Definition of limits: — from -the sea at the mouth of the river Tweed up the river on both sides thereof, partly in the parochial chapelry of Tweed- mouth, partly in the borough of Berwick- upon-Tweed, and partly in the county of Northumberland, up to the mouth of the river "Whittader where that river flows into the Tweed, and also from the east end of the existing pier, two miles in a straight line in every direction along the coast and into the sea. See P. E. No. 325 of 1882, p. 2. 2. Compulsion and Exemption. 1757a. Pilotage within this district is not compulsory except for home-trade passenger ships not exempted under the * (523) It seems, therefore, that pilotage is not compulsory for British vessels through- out any part of the distriot of the Trinity House of Newcastle-upon-Tyne. P. E. No. 264 of 1863, p. 68 ; but that pilotage there is compulsory on foreign vessels. t (524) Former bye-laws as to this port are repealed by bye-laws of 1st Jan. 1853. OWNERS. Part VII. Compulsory Pilotage. 137? M. 8. Act, 1854 (o. 104), s. 354. See P. E. No. 264 of 1863, p. 12 ; ibid. No. 408 of 1867. 16. Port of Boston. 1 . Generally. 1758. See 16 Geo. 3, c. 23 ; and 32 Geo. 3, c. 79, ss. 9 and 10 ; 5 Yict. sees. 2, c. lx. ; Trinity House Begulations of 5th September, 1856; and Bye-laws. See also P. E. No. 516 of 1855, p. 88 ; No. 264 of 1877 ; No. 266 of 1878 ; No. 268 of 1879; and No. 325 of 1882. 1759. Definition of limits: — So much of the river "Witham as runs from the grand sluice in Boston towards and into a certain place called the Scalp, and also the roads and all and singular the deeps commonly called the Norman Deeps, and also all manner of places and parts and watercourses and the streams of the washes near and in the parts of Holland extending to the haven or place called Wainfieet Haven, and to a certain place called Pullye Heads, and to another place or sand called the Knock, and to another place called the Dog's Head-in- the-Pot, and to the uttermost limits of the flow- ing and ebbing of those waters, and every of them, and adjoining to the sea and floods and streams of the borders and confines of the county of Norfolk. See P. E. No. 325 of 1882, p. 4 ; and Orders, Eules, and Bye-laws therein set out. 2. Compulsion and Exemption. 1759a. Pilotage is compulsory in this port on all vessels or barges conducted or piloted into and out of the port other than barges not exceeding the burthen of thirty chaldrons of coals, and vessels or barges in distress. See 16 Geo. 3, c. 23, s. 7* 17. Port of Bristol. 1 . Generally. 1760. See 47 Geo. 3, c. xxxiii. ; 6- Geo. 4, c. 125, ss. 59—61, 62; and the Bristol Dock Act, 1848 (c. xliii.).f 1760s. Definition of limits : — the limits of the port of Bristol are defined by the "Wharfage Act of 1st August, 1807 (c. xxxiii.), to be the east of Lundy Island ; and by the Justices of the Com- mon Pleas Division, in the case of Hall v. Cardiff Pilotage Board, 18th November, 1879, that is defined to be " eastward of the meridional line from N. to S. through Lundy," which line is 4 - 40 W. longitude. See P. E. No. 325 of 1882, p. 6, and Bye-laws and Bates therein. 1761. The jurisdiction of the corpora- tion of Bristol is extended to the appoint- ment of pilots for conducting ships into, out of, and upon the whole of the Bristol Channel, and the several ports, harbours, and creeks belonging to and running from the same. See 47 Geo. 3, c. xxxiii. s. 1. 1762. The corporation of Bristol ap- points, and licences and controls pilots within the port of Bristol. See the Bristol Dock Act, 1848 (c. xliii.), s. 66. 1763. Por powers to the corporation to make and alter bye-laws to enforce the execution of the provisions of the act of 47 Geo. 3, c. xxxiii. see ibid. ss. 18 and 20. Por similar powers as to the Bristol Dock Act, 1848 (c. xliii.), see ibid. ss. 13 and 67. 1764. A separate system of pilotage is established in the Bristol Channel in con- nection with the ports of Cardiff, New- port, and Gloucester, with boards for each of such ports, each of such boards being a "pilotage authority" within the mean- ing of the M. S. Act, 1854. See the Bristol Channel Pilotage Act, 1861 (c. ccxxxvi.) s. 17. 1765. A separate system of pilotage is. similarly established for Penarth Har- bour. Ibid. s. 18, and 19 & 20 Vict. c. cxxii. s. 72. 1766. The ports of Bridgwater and Neath, in the Bristol Channel, are not within the pilotage jurisdiction of the corporation of Bristol, but are included in the Outport District of the Trinity House, London. See, as to Bridgwater, 24 Yict. c. ccxxxvi. s. 1 1 ; 8 & 9 Yict. c. lxxxix. s. 76 ; and No. 1661, p. 1368 ; as to Neath, 6 & 7 Yict. c. lxxi. s. 187; andNos. 1681, 1682, p. 1370; and as to Swansea, 17 & 18 Vict. c. cxxvi. s. 162 ; and c. 31, p. 1386. * (525) For the bye-laws of 1st Jan. 1853, see Parliamentary Return as to Pilotage, No, 516 of 1855. t (526) See also, as to this port, Parliamen- tary Return, No. 408 of 1867, and No. 325 of 1882, p. 6. (527) As to the concurrent power of the Trinity House, London, to license pilots for the Bridgwater district, see Order in Council of 17th May, 1867, in 2 Maude & Pollock (4th ed. by PoUock & Bruce), p. 82. 1378 OWNERS. Part VII. Compulsory Pilotage. 1 767. AH Bristol Channel pilots licensed before July, 1861, to pilot vessels in that channel are authorized to pilot the like vessels within the same limits, i.e. as before the passing of this act, in the ports of Cardiff, Gloucester and Newport, with- out license from, any of their boards. See the Bristol Channel Pilotage Act, 1861 (c. ccxxxvi.) s. 24. 1768. The Bristol Channel pilots, with respect to their pilotage of all ships bound to or from the ports of Newport, Cardiff, and Gloucester, are subject to the government and regulations of the board of the port to or from which any such vessel is bound, and to all bye-laws and regulations issued by it, and to the penal- ties annexed to the breach thereof, like pilots licensed by such board. Ibid. s. 25. 1769. Pilots licensed before July, 1861, for the several ports of Cardiff, Newport and Gloucester continue pilots for the ports for which they are licensed. Ibid. s. 26. 1770. For provisions requiring the pilotage authorities of Cardiff, Newport and Gloucester, by supplemental licence to authorize any such thentofore Bristol Channel pilots to pilot any vessels within the ports under the control of those boards on their applying within a certain period, and passing the necessary exami- nation, see ibid. s. 24. 1771. For similar provisions as to the thentofore pilots of Cardiff, Newport or Gloucester, to act as pilots in those ports, see ibid. s. 26. See also as to Penarth Harbour, c. 28, p. 1385. 2. Compulsion. 1772. All vessels navigating the Bristol Channel to the eastward of Lundy Island, except coasting vessels and Irish traders^ must be piloted by pilots duly licensed by the corporation of the city of Bristol, by warrant under their corporate seal. Penalty for default, double pilotage, and £5 per ton on the vessel's burthen. See 47 Geo. 3, sess. 2, c. xxxiii. s. 9. 1773. Any licensed pilot may supersede any unlicensed pilot in the charge of any ship within the limits before mentioned ; and every master within those limits, who continues any person not licensed after a licensed pilot has offered to take charge, incurs a penalty not exceeding £10. Ibid. s. 14. 1774. If any person having charge or pilotage of any vessel within the port of Bristol, not being a pilot licensed by the corporation of Bristol, does not, upon the approach of any licensed pilot, shorten sail for and take on board such pilot, and resign to him the charge of such vessel, penalty, not exceeding £10. See 11 & 12 Yict. c. xliii. s. 66. 1775. Pilotage is also compulsory (sub- ject to the exemption in the next section) on all vessels navigating up and down the Bristol Channel to the E. of Lundy Island, in all cases where the provisions of 47 Geo. 3, sess. 2, c. xxxiii. as modified by the following acts and any other similar acts, still apply : 25 & 26 Yict. c. ccxxxvi. ss. 4, 31 (see ports of Cardiff, Gloucester, and Newport, c. 18, infra)', 6.& 7 Yict. c. lxxi. s. 187 (see Neath Trinity Outport District, c. 10, s. 23, p. 1370); 8 & 9 Yict. c. lxxxix. s. 76 (see Bridgwater Trinity Outport District, c. 10, s. 6, p. 1368); 17 & 18 Yict. c. cxxvi. s. 162 (see Swansea Pilotage District, c. 31, p. 1386); 19 & 20 Yict. c. cxxii. s. 72 (see port of Cardiff, c. 18, infra). 1776. Pilotage is payable by all vessels using the port, but those under 80 tons burthen pay a moiety only of the rates chargeable to those of 80 tons burthen, unless a pilot be required, when full rates are chargeable. See P. B. as to Pilotage, No. 408 of 1867, pp. 72, 73. 3. Exemption.* 1777. Nothing in this act extends to subject to any penalty any owner or mas- ter of any coasting vessel or Irish trader using the navigation of the Bristol Chan- nel, or the rivers Severn or Avon, up- wards or downwards, nor any owner or master of any other ship who employs any person or acts himself as pilot of his ship when a licensed pilot cannot be pro- cured. See 47 Geo. 3, sess. 2, c. xxxiii. s. 10. 1777a. Foreign vessels in the coasting trade are subject to the same rates as British vessels. See the Customs Con- solidation Act, 1876 (c. 36), s. 141. * (528) It would seem that pilotage in this district is not compulsory as regards vessels under 80 tons, See P, B. No. 516 of 1853, p. 96. (529) But they must pay a moiety of the rates chargeable to vessels of 80 tons even if no pilot be employed. Ibid. No. 408 of 1867, p. 72. OWNERS. Part VII. Compulsory Pilotage. 1379 18. Ports of Cardiff, Gloucester, and Newport, including Pe- narth.* 1 . Generally. 1778. Definition of limits: The port of Cardiff and that portion of the Bristol Channel which, lies E. of Lundy Island up to and including King Eoad, and the river Bhymney to Ehymney Bridge. See P. E. No. 325 of 1882, p. 10. 1779. That portion of the Bristol Channel which lies E. of Lundy Island, including the river Severn to the city of Gloucester, and the river Wye to Chep- stow Bridge. Ibid. p. 16. 1780. That portion of the Bristol Channel which lies to the E. of Lundy Island up to and including King Eoad and the river Usk, as far as Caerleon Bridge. Ibid. p. 86. 1781. For bye-laws, rates, and regula- tions of these ports, see as to Cardiff, P. E. No. 325 of 1882, p. 10, and No. 222 of 1884, p. 5; as to Gloucester, P. E. No. 325 of 1882, p. 16; and as to New- port, Ibid. p. 86 ; and as to all of them, P. E. No. 276 of 1875, pp. 43, 67 and 72. 1782. A separate system of pilotage is established in the Bristol Channel for the ports of Cardiff, Newport, and Gloucester, with boards for each of such ports, each of such boards being a " pilotage autho- ■ rity " within the meaning of the M. S. Act, 1854 (c. 104). See the Bristol Channel Pilotage Act, 1861 (c. ccxxxvi.). 2. Exemption. 1783. It is not obligatory on the master of any vessel bound to or from any of the ports of Cardiff, Newport, or Gloucester, other than a ship carrying passengers, to employ a pilot, so long as such vessel is navigated by the master or any officer thereof. Ibid. s. 31. 1784. No person, except the master of the vessel, shall act as pilot in navigating any vessel upon the canal who has not received a licence to do so from the di- rectors of the company, and no master of any vessel shall employ any person, other than a pilot licensed by the directors of the company, to navigate or direct the movements of any vessel upon the canal. See Bye-laws of the Gloucester and Berkeley Canal Co., confirmed 27 January, 1871, No. 23. 1785. Masters of vessels are not com- pelled to employ a pilot on the canal ; but if any person be employed in that capacity it must be one of the licensed pilots. The company will not be responsible for any damage done to or by any vessel whilst in the charge of a licensed pilot. Ibid. 1785a. The 10*. 6d. per day to which a licensed pilot taken without his consent to sea, or beyond the limits of his pilot- age district in any ship, is entitled by the M. S. Act, 1854 (c. 104), s, 357, are not "pilotage dues" for which the ship brokers are liable under s. 363. Morteo v. Julian, 4 C. P. D. 216. 19. Port of Chester. 1786. Definition of limits of pilotage district : Prom Great Orme's Head to Chester. See P. E. No. 325 of 1882, p. 15 ; and for bye-laws, rules, and regu- lations, Ibid. No. 222 of 1884, p. 9; and as to the constitution of the port the Point of Ayr Lighthouse Act, 16 Geo. 3, c. 61. 1787. Pilotage is made compulsory on all inward-bound vessels boarded to the West of Chester Bar, except coasting vessels, Irish vessels, and vessels in dis- tress. See 16 Geo. 3, c. 61, s. 44. As to outward-bound vessels, Ibid. ss. 24, 37 ; the M. S. Act, 1854 (c. 104), ss. 354, 362 ; the Customs Consolidation Act, 1876 (c. 36), s. 141 ; and 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 122. SO. Port of Clay, or Blakeney (Nor#>lk). 1788. Definition of limits: Prom har- bour to sea, see P. E. No. 325 of 1882, p. 3. 1788a. For constitution, bye-laws, and regulations, see 57 Geo. 3, c. lxx. ss. 25, 45—50; and P. E. No. 266 of 1878 and' No. 325 of 1882. 17885. The pilotage in this port is com- pulsory except for exempted ships. An ex- emption is made in favour of ships under fifty tons, or in distress. See 53 Geo. 3, c. lxx. s. 46 ; and 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 120. * (530) Penarth is now included in the Cardiff pilotage district, and two of the members of the Cardiff Pilotage Board are now appointed by the Penarth Harbour Dock and Eailway Co. P. E. No. 276 of 1875; 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 121, note ; and see c. 28, p. 1385. 1380 OWNERS. Part VII. Compulsory Pilotage. 21. Port of Douglas, Isle of Man.* 1789. For the constitution of this port, see 54 Geo. 3, c. 143; and the Isle of Man Harbour Act, 1872 (c. 23), s. 12. 1790. For the bye-laws as to pilotage for this port, see P. E. as to pilotage, No. 408 of 1867, p. 79. 1791. Pilotage is not compulsory in this port. Ibid. 22. Port of Hartlepool. 1792. Definition of limits : The Bay of Hartlepool inside an imaginary line drawn from Black Hall Eocks, about three miles north of Hartlepool, to a point about two miles south of the river Tees. See P. E. No. 325 of 1882, p. 25. 1793. Separate pilotage commissioners are constituted for this port. See the Hartlepool Pilotage Order, 1864 (c. 58), Sched. 1794. Nothing in this order obliges the owner or master of any vessel to employ any pilot in piloting such vessel within the Hartlepool pilotage district, if he is not desirous so to do. Ibid. s. 16.f 1795. See, also, as to the bye-laws and regulations of this port, P. E. No. 269 of 1877, and No. 325 of 1882. See also No. 1746, p. 1375. 23. Port of Hastings. 1796. Hastings is one of the Cinque Ports, which are a pilotage authority and a local authority, within the mean- ing of the M. 8. Act, 1854 (c. 104), with all the powers by tiaat act conferred on pilotage authorities and on local autho- rities. See Provisional Order of the Board of Trade as to the Hastings Pier and Harbour Company, cited in the Pier and Harbour Orders Confirmation Act, 1862 (c. 51), s. 26. 1797. As to the limits of this harbour, see the Hastings Harbour (Alexandra Pier) Order, 1866 (s. 31). 1798. All pilotage in this port is volun- tary. See the M. S. Act Amendment Act, 186"2 (c. 63), s. 39. 24. Fort of King's Lynn. 1. Generally. 1799. Definition of limits : Into and out of the port of King's Lynn, or be- tween St. Edmund's Ness, otherwise Gore End, and a certain place called Staple "Ware, being the utmost bounds southwards of the jurisdiction of the mayor, aldermen and burgesses of King's Lynn. In practice the pilots conduct be- tween Lynn Harbour southwards and the Bell Buoy in Lynn Lower Eoads north- wards. See P. E. No. 325 of 1882, p. 20. 1800. For constitution, bye-laws and regulations, see 13 Geo. 3, c. 30 ; 4 & 5 Vict. c. xlvii ; Bye-Laws of 4th Feb. 1831 ; and P. E. No. 516 of 1855, p. 138 ; No. 204 of 1874, p. 12 ; No. 325 of 1882, p. 20 ; and No. 222 of 1884, p. 17. 2. Compulsion. 1801. The pilotage is compulsory for all vessels above thirty tons, builder's measurement, lighters or barges in bal- last, and vessels or barges in distress. See 13 Geo. 3, c. 30 ; 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 122. 1802. All vessels shall be piloted as far down as the Bell Buoy. See P. E. No. 243 of 1865, p. 62.| 1803. Inward-bound vessels must, if practicable, be boarded by pilots at the Bell Buoy. Ibid. p. 13. 1804. Semble, therefore inward pilotage commences and outward pilotage ceases at the Bell Buoy. Ibid. * (531) So much of any general act for the time being in force as relates to pilotage shall extend to the Isle of Man. See the Isle of Man Harbour Act, 1872 (c. 23), b. 12. (532) The pilotage, therefore, on the Har- bour Commissioners exercising their powers under the above act, c. 23, s. 12, will apparently become compulsory for home- trade ships carrying passengers, and not having a certificated master or mate. See M. 8. Act, 1854 (c. 104), s. 354; and 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 122. ' t (533) There has been no decision as to the construction of this provision with the 41 Geo. 3, c. lxxxvi. s. 6, and the 39 & 40 Vict. c. 36, s. 141, or with the M. S. Act, 1854 (o. 104), s. 354. See 2 Maude & Poll. (4th ed. by Poll. & Bruce), p. 119; and note (d) thereto. X (534) This provision, however, is not re- ■ peated in terms in the later bye-laws, but No. 23 provides that pilots appointed to pilot vessels down the channel shall not, unless by permission of the masters, leave them before arriving at the Bell Buoy. See P. E. as to Pilotage, No.-204 of 1874, p. 12. OWNERS. Part VII. Compulsory Pilotage. 1381 3. Exemption. 1805. The pilotage is optional for in- ward-bound vessels having arrived "with- out a pilot" within the Marsh Cut Bants. Note to 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 122. 1806. All vessels, whether inward or outward bound, to or from Lynn, are exempt from the payment of pilotage if unable to procure a pilot, and if any vessel arrives within the Marsh Cut Banks without a pilot, the employment of a pilot is optional. See P. E. No. 204 of 1874, p. 13. 1807. See also such exemptions as are applicable in Nos. 1574—1642, pp. 1361 —1366. 26. Port of Lancaster. 1. Generally, 1808. Definition of limits: Inwards — within imaginary lines from Morecambe Bay Light vessel to Formby Point and Haverrigg Point respectively. Outwards — Glasson Dock to No. 1 Buoy or Danger Patch Buoy as required by masters of vessels. See P. R. No. 325 of 1882, p. 59 ; and for Bye-Laws and Eegulations, Ibid. 1809. For the constitution, bye-laws and regulations of the port, see 47 Geo. 3, c. xxxvii; Bye-Laws of 24th Jan. 1809; and P. E. No. 516 of 1855, p. 142; No. 408 of 1865, p. 86; No. 266 of 1878; and No. 325 of 1882, p. 59. 2. Compulsion. 1810. Pilotage is compulsory on ves- sels sailing into, out of, or within, the port of Lancaster or the Eiver Lune. Penalty, full pilotage. See P. E. No. 408 of 1865, p. 86. 3. Exemption. 1811. Yessels in ballast and coasting vessels under 100 tons burthen are ex- empt. Ibid. See also such exemptions as are applicable in c. 9, Nos. 1574 — 1642, pp. 1361—1366 ; and M. S. Act Amend- ment Act, 1862 (c. 63), s. 41, in c. 9, p. 1363. 26. Port of Liverpool. 1 . Generally* 1812. Definition of limits of pilotage district : Compulsory inward pilotage ex- tends from the Middle Mouse on the coast of Anglesey to the Eiver Mersey; and compulsory outward pilotage from the Mersey to the Fairway buoys of the sea channels of the Mersey. See P. R. No. 325 of 1882, p. 61. 1813. For provisions as to pilotage in relation to the Liverpool and Birkenhead Docks, and the port and harbour of Liverpool, see the Mersey Docks Acts Consolidation Act, 1858 (c. xcii), Pt. YI. ss. 118—164. 1814. As to the terms master, owner, pilot, and vessel, Ibid. s. 3. 1815. Every pilot taking charge of any vessel must, if so required by the master, pilot such vessel, if sailing out of the port of Liverpool, through the Queen's Channel, so far to the westward as the Formby north-west buoy, or Fairway buoy of the Queen's Channel ; and if sailing through the Eock Channel, so far to the westward as the north-west buoy of Hoyle. Ibid. s. 127. 1816. If the master of any vessel re- quires the attendance of a pilot on board during her riding at anchor, or being at Hoylake, or in the Mersey, the pilot so employed is to be paid five shillings, and no more, for every day or portion of a day he so attends ; but the pilot who shall have the charge of any vessel shall be paid for every day of his attendance whilst in the river. No such charge shall be made for the day on which the vessel, being outward bound, leaves the Mersey to commence her voyage, or being inward bound, enters the Mersey. Ibid. s. 138. 1817. If any vessel is in want of and unable to obtain a pilot, the pilot on board any other vessel going into or coming out of the port of Liverpool, may lead the way for, and conduct the vessel into or out of the port, and the master of any vessel so piloted shall pay the same rates of pilotage as if the pilot had ac- tually been on board his own vessel. Ibid. s. 126. 1818. The Mersey Docks Act, 1881 (c. xlix), makes further provision as to * (535) The following acts of Parliament relate to pilotage of the port of Liverpool : — 37 Geo. 3, c. 78 ; 5 Geo. 4, c. lxxiii ; The Mer- sey Docks and Harbour Act, 1857 (c. clxii) ; The Mersey Docks Acts Consolidation Act, 1858 (c. xcii) ; the Mersey Docks Act, 1864 (c. ccxiii) ; and the Mersey Docks Act, 1881 (c. xlix). 1382 OWNERS. Part VII. Compulsory Pilotage. the pilotage service of the port of Liver- pool, and for controlling the working, &c. of pilots and pilot vessels and boats. 1819. The pilot in charge of any inward- bound vessel must cause the same (if need be) to be properly moored at anchor in the Mersey, and pilot her into some one of the wet docks within the port of Liver- pool, whether belonging to the Board or not, without making any additional charge for so doing, unless his attendance is re- quired on board the vessel while at anchor in the river Mersey and before going into dock, in which case he is entitled to five shillings per day for such attendance. See the Mersey Docks Acts Consolidation Act, 1858 (c. xcii), s. 128; P. E. No. 325 of 1882, p. 69 ; and Bye-law 128. 1820. The 138th section of the Mersey Docks Acts Consolidation Act, 1858 (e. xcii.), which provides in certain cases of extra attendance for additional remunera- tion to pilots, does not relate only to pilots who are voluntarily engaged, but a pilot who is compulsorily engaged under the 139th section of the act, may, by the ship's detention in the river, become entitled to extra remuneration under the 138th sec- tion. The City of Cambridge, L. B. 5 P. C. 451; L. E. 4 A. & E. 161; 43 L. J. Adm. 11; Ibid. P. C. 72; 2 Asp. N.S. 193, 239. 1821. Semble, the channel near the Bell buoy, outside the Queen's Channel lead- ing into the port of Liverpool, is not a nar- row channel within the meaning of the 297th section of theM. S. Act, 1854(c. 104), repealed by M. S. Act, 1862 (c. 63), s. 2, but re-enacted in the Sea Collision Eules of 1879, for which see tit. Collision, Pt. VIII. p. 273 ; and in the Mersey Channels Act, 37 & 38 Vict. c. 52, s. 1. The Meander and The Florence Nightin- gale, 1 Moore, P. C. C. N.8. 63. 1822. The bye-laws and regulations now regulating pilotage in this port are those contained in P. E. No. 325 of 1882, p. 61, and those contained in No. 207 of 1883, p. 34. The latter came into force on the 1st of June, 1882, and repeal all previous bye-laws made under the autho- rity of the Mersey Docks Acts Consolida- tion Acts, 1858. 2. Compulsion. (a) Generally. 1823. The provisions of the M. S. Act, 1854 (c. 104), s. 353, are extended to the Liverpool Pilotage District, but without prejudice to the exemption conferred by the Mersey Docks Acts Consolidation Act, 1858 (c. xcii), s. 130, on inward-bound coasting vessels under the burden of 100 tons. See the Mersey Docks Act, 1864 (c. cexiii), s. 7. 1824. If the master of any vessel, out- ward bound and not being a coasting vessel in ballast, nor under the burthen of 100 tons, proceeds to sea and refuses to employ a pilot ; penalty full pilotage and expenses. See the Mersey Docks Acts Consolidation Act, 1858 (c. xcii), s. 139. 1825. If the master of any inward- bound vessel, other than a coasting vessel in ballast or under the burthen of 100 tons, refuses to employ a pilot who has offered his services ; penalty full pilotage. Ibid. s. 130. 1826. The master of every inward-bound vessel liable to pilotage must, on coming within the pilot stations fixed by the bye- laws, display and keep flying the usual signal for a pilot to come on board ; pe- nalty for default not exceeding £5. Ibid, s. 129. 1827. And if any pilot comes within a reasonable distance of such vessel, the master must render all necessary assist- ance (so far as consistent with the safety of such vessel), to enable such pilot to come on board. Ibid. 1828. The compulsion to employ a pilot is till the completion of the voyage, or so long as the pilot is bound to' perform ser- vices. The Annapolis and Johanna Stoll, 30 L. J. Adm. 201; 4 L. T. N.S. 423; 1 Lushington, 295 ; 1 Asp. 69. 1829. A foreign vessel inward bound for Liverpool is required by 21 & 22 Vict, c. xcii. ss. 129, 130, to make a signal for a licensed pilot on coming to the usual pilot station, and to employ the first pilot offering his services. Ibid. 1830. Aninward-bonndvesselconducted by a pilot into the port of Liverpool, and anchoring in the Mersey, is required by 21 & 22 Vict, c.xcii. s. 128, to employ the pilot in removing from the river into dock. Ibid. 1831. A foreign vessel, bound for Liver- pool, took a pilot off Point Lynas, was brought to anchor in the Mersey and there lay two or three days, waiting for want of water to dock. She was then conducted by the same pilot into dock. In proceeding towards the dock, a col- lision was occasioned by the pilot's default. Held, that the pilotage was compulsory, and that the vessel was therefore not liable for the damage. Ibid. 1832. The pilot had been taken on OWNERS. Part VII. Compulsory Pilotage. 1383 board to pilot the vessel to the Queen's Docks at Liverpool, and the ship having arrived in the Mersey too late by reason of the tide to enter the Queen's Docks, she -was anchored off the Albert Docks till next tide. She then proceeded to the Queen's Docks, and on her way the colli- sion occurred. Held, that she was bound to have a pilot on board, and that the en- gagement with him did not terminate on the ship's anchoring off the Albert Dock. The Montreal, 17 Jur. 538; 1 Spinks' Eccl. & Adm. Eep. 154. 1833. In the 128th section of the Mersey Docks Acts Consolidation Act, 1858 (c. xcii.), the words "unless," &c. do not restrict the meaning of the 129th and 130th sections, so as to render it less compulsory upon the owner to employ a pilot to dock the ship, or upon the pilot to perform such service. The Annapolis and Johanna Stoll, 4 L. T. N.S. 423 ; 1 Lushington, 295 ; 30 L. J. Adm. 201. 1834. By the Liverpool Act, 37 Geo. 3, c. 78, s. 24 (since repealed), the master of a vessel inward bound was liable to pay pilotage if he refused to take a pilot. Held, that such a vessel was, upon general principles, and under that act, and the 55th section of the General Pilot Act, 6 Geo. 4, c. 125, compellable to take a pilot, and that her owners were therefore not responsible for his acts. Carruthers v. Sidebottom, 4 Maule & Selwyn, 77. 1835. See the apparent contradiction between this case and The Att-Gen. v. Chase, explained in The Maria, 1 ~W. Eob. 102. 1836. A vessel sailed from Calcutta and arrived in London, where she discharged her cargo, and thence proceeded in ballast to Liverpool. Held, that the original voy- age was not so completed by her arrival and delivery of cargo in London as to admit of the voyage from London to Liverpool being considered as a coasting voyage within the meaning of the Liver- pool Pilot Act (5 Geo. 4, c. lxxiii), s. 25; that, therefore, under that act the master of such a ship, though in ballast, was com- pellable to take a pilot on entering the port of Liverpool; and that the owners were, therefore, exempted from respon- sibility for a collision occasioned by the default of the pilot only. The Agricola, 2W. Eob. 10; 7 Jur. 157. 1837. A vessel ordinarily occupied in the foreign trade- going from Liverpool to London in order to sail from London on such foreign trade, without 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 M. S. Act, and is compellable to take a pilot. The John Mowlem v. The Lloyd 's or Sea Queen, 2 N. E. 497 ; 9 L. T. N.S. 236 ; 32 L. J. Adm. 97. 1838. A vessel, in order that she might be ready to cross the bar of the Mersey on the morning tide, was brought out of dock over-night in charge of a pilot, and was anchored in the river. During the night she drifted, and came into collision with another vessel. Held, by the Privy Council, affirming the decision of the Court of Admiralty, that the vessel was "pro- ceeding to sea" within the meaning of sect. 139 of the Mersey Docks Acts Con- solidation Act, 1858 (c. xcii), and that, therefore, the employment of the pilot at the time of the collision was compulsory by law. The City of Cambridge, No. 1820, supra. 1839. A barque came out of dock into the Mersey with a pilot on board, and anchored ready to be towed to sea the next morning. "While the barque was still at anchor, an accident happened to her mainyard, which would have taken two days to repair. The tug was accord- ingly sent away. A collision having occurred shortly afterwards, held, that the barque was not proceeding to sea within the meaning of the Mersey Docks Consolidation Act, 1858 (c. xcii), s. 139, and was not under compulsory pilotage. The Cachapool, 7 P. D. 217; 4 Asp. 502. 1840. An inward-bound vessel in charge of a pilot coming to anchor in the Mersey, and remaining at anchor several days, does not continue during that time to be in charge of a pilot by compulsion of law. The Woburn Abbey, 38 L. J. Adm. 28 ; 3 Asp. 240. 1841. The "W. A., an inward-bound vessel in charge of a pilot, came to anchor in the Mersey, and gave the B. T. a foul berth. The master of the W. A. knew that his vessel was im- properly anchored, and after several days the vessels, in swinging to' the tide, came into collision. . Held, that the W. A. was not, at the "time of the collision, in charge of a pilot by compulsion of law. Ibid. 1842. A pilot was compulsorily em- ployed to take a vessel into dock. Owing to the- -weather the vessel was anchored- outside the dock in the Mersey. While she was so anchored a collision took place. Held, that the pilot was, at the time, in 1384 OWNERS. Part VII. Compulsory Pilotage. charge by compulsion of law. The Prince- ton, 3 P. D. 90 ; 3 Asp. N.S. 562 ; 47 L. J. P. D. & A. 33. See also No. 1475, p. 1351, and No. 1812, supra. (b) Ships, one or both Foreign. 1843. Objection that the 129th and 130th sections of the Mersey Docks Acts Consolidation Act, 1858 (c. xcii), do not apply to a foreign ship so as to render the taking of a pilot off Point Lynas com- pulsory upon her owners, overruled. The Annapolis and Johanna Stoll, 4 L. T. N.S. 421 ; 30 L. J. Adm. 201 ; 1 Lushington, 295. 1844. A foreign vessel inward bound for Liverpool is required by the Mersey Docks Acts ConsolidationAct, 1858(c. xcii), ss. 129, 130, to make a signal for a licensed pilot on coming to the usual pilot station, and to employ the first pilot offering his services. Ibid. 1845. Every vessel, whether British or foreign, lying in the Mersey inward bound, is required by the Mersey Docks Acts Consolidation Act, 1858 (c. xcii), s. 128, to employ a pilot in removing from the river into dock. Ibid. 1 846. A foreign vessel bound for Liver- pool took a pilot off Point Lynas, was brought to anchor in the Mersey, and there lay two or three days waiting, for want of water, to dock. She was then conducted by the same pilot into dock. In proceed- • ing towards the dock a collision was occa- sioned solely by the pilot's default. Held, that the ship and her owners were not liable for the damage. Ibid. 3. Exemption. 1 847. The master of any coasting vessel in ballast, or under the burthen of 100 tons, may pilot his vessel into or out of the port of Liverpool. See the Mersey Docks Acts Consolidation Act, 1858(c. xcii), s. 141. 1848. See as to the exemption of ves- sels in distress, 21 & 22 Vict, c. xiii; and also the exemptions contained in M. S. Act, 1854 (c. 104), ss. 353, 354, 362 ; the M. S. Act Amendment Act, 1862 (c. 63), s. 41, and 39 & 40 Vict. c. 63, s. 141, in c. 9, Nos. 1574—1642, pp. 1361— 1366. 1849. Such of the exemptions from compulsory pilotage under 6 Geo. 4, c. 125, as may be applicable, together with such other exemptions, if any, as existed before the 10 th August, 1854 (and for which see c. 9, s. 3, p. 1360), are also in force within this district. See the Mersey Docks Act, 1864 (c. ccxiii), s. 7. 1850. The Liverpool Pilot Act, 5 Geo. 4 (c. lxxiii), s. 35 (now repealed), enacted, that in case the master of any ship out- ward bound should proceed to sea, and refuse to employ a licensed pilot, such master should pay the pilot, who first offered his services, and was so refused, the same pilotage as if the pilot had been employed in piloting the vessel out of the port, and all expenses incurred in the recovery of the same. A ship left the Liverpool Docks with a pilot on the 2nd December. On the 3rd the plaintiff was engaged to raise an anchor of the ship, lost in the river, and in doing so, by some mismanagement of those on board, the plaintiff's boat alongside was sunk. At the time of the accident the ship was at anchor in the Mersey; was in the service of the Post-office, and. was under contract to sail on the following day, but the master was not on board, and the riggers were engaged in com- pleting her rigging. Held (assuming that under the act an outward-bound vessel, when proceeding to sea, is bound to take a pilot), that under the circum- stances this ship was not at the time proceeding to sea. Rodrigues v. Melhuish, 10 Exch. 110; 24 L. J. Exch. 26; 23 L. T. 177. 1851. By the 31st and 34th sections of the Liverpool Act (37 Geo. 3, c. 78, since repealed), it was provided that any vessel, whilst lying at anchor in the Mersey, might require a pilot to remain on board on payment of five shillings a day for his services. Held, that the so taking a pilot was optional, and that the owners were therefore responsible for his acts. Att.- Gen. v. Case, 3 Price, 302* 1851a. See also such exemptions as are applicable in c. 9, s. 3, Nos. 1574—1642, pp. 1361—1366. See also Nos. 1839, 1840 and 1841, * (536) See the apparent contradiction between this case and Carruthers v. Sidebottom, explained in The Maria, 1 W. Bob. 102. OWNERS. Part VII. Compulsory Pilotage. 1385 27. Port of Llanelly. 1. Generally. 1852. Definition of limits of pilotage district : All vessels bound in over Burry Bar shall hoist a pilot signal immediately they pass a line drawn from the Helwick Lightship to Oaldy Light. P. E. No. 325 of 1882, p. 78 ; Bye-Law 3. 1853. As to the constitution, &c. of this port, see the Burry Navigation and Llanelly Harbour Act, 1858 (c. lxxii.) ; 27 & 28 Yict. c. cciii.; and 41 & 42 Vict, c. lxxxiii. 1854. Por the bye-laws regulating pilotage in this port, see P. P. No. 516 of 1855, p. 160 ; No. 244 of 1859, p. 82 ; No. 287 of 1860, p. 81 ; No. 243 of 1861,p. 76 ; No. 408 of 1867 ; and No. 325 of 1882. 1855. Pilots must remain in charge until the vessels are properly moored. Ibid. Bye-Law 23. 2. Compulsion. 1856. (1) All vessels with cargoes, and all vessels above 40 tons .register in bal- last, bound over the bar of Burry in- wards; and (2) all vessels of 30 tons register and upwards in ballast, shall employ the first licensed pilot that offers. Ibid. No. 325 of 1882, p. 78 ; Bye-Law 1. 1857. Vessels requiring assistance in moving within the port must employ a licensed pilot, if one offers his services. Ibid. Bye-Law 5. 3. Exemption. 1858. Vessels in ballast under 50 tons register, being inward bound, and vessels with cargoes under 30 tons, or in ballast under 50 tons, are exempt. Ibid. Bye- Law 1 ; and P. E. No. 408 of 1867, p. 98. 1859. Any master unable to procure a pilot to take his vessel out is entitled to repayment of the outward pilotage paid in advance. Ibid. Bye-Law 7. 1860. See also such exemptions as are applicable in c. 9, s. 3, Nos. 1574—1642, pp. 1361—1366; and the M. S. Act Amendment Act, 1862 (c. 63), s. 41, No. 1605, p. 1364. 28. Penarth Harbour.* 1 . Generally. 1861. The harbour means that part of the river Ely (lying between a point 46 chains or thereabouts below Cogan Pill and a point 144 chains or thereabouts above the Pill, measured in both cases along the centre of the river) which is by this act authorized to be improved for the purpose of a tidal harbour. The limits of this act mean the harbour, and that portion of the river which lies be- tween Cardiff Eoads and the harbour, and also the entrance thereto. See the Ely Tidal Harbour and Eailway Act, 1 856 (c. cxxii.), s. 2, repealed by the Bristol Channel Pilotage Act, 1861 (c. ccxxxvi.), s. 21. 1862. The Penarth Harbour Company is, as a pilotage board, amalgamated with the Cardiff Pilotage Board, and the dis- trict of Penarth Harbour is therefore in- cluded by that act in the port of Cardiff. See the Bristol Channel Pilotage Act, 1861 (c. ccxxxvi.), ss. 3, 5, and 21, and note 530, p. 1379. 2. Exemption. 1863. Pilotage is not compulsory within the districts created by this act, and which include the port of Cardiff, and therefore, notwithstanding sect. 9 of 47 Geo. 3, c. xxxiii. pilotage is not compul- sory in the district of Penarth Harbour. See the British Channel Pilotage Act, 1881 (c. ccxxxvi.), s. 31 ; and c. 18, p. 1379. 29. Port of Porthcawl.f 1864. The limits of the Porthcawl pilotage district seawards are the Sker * (537) No returns are furnished, nor in- formation given as to bye-laws and regu- lations by this pilotage authority under the provisions of the M. S. Act, 1854 (c. 104), s. 337. t (538) The bye-laws contain no express provisions for compulsory pilotage. See P. E. No. 268 of 1879, p. 44. (538a) But a saving clause to one of the bye-laws declares that "nothing therein contained shall affect the provisions of 47 p. Geo. 3, c. 33, which relate to the exemption from compulsory pilotage of coasting vessels and Irish traders." Ibid. (539) The local act (6 Geo. 4, c. civ. s. 106) gives power to the harbour authority to fix the rates to be charged for pilotage, and to licence pilots for the port, and to make bye- laws enforcing paymentof them. But nothing f urther is contained in the act as to the nature of the pilotage. • 4u 1386 OWNERS. Part VII. Compulsory Pilotage. and Nash Points and inside sands to the harbour. See P. E. No. 325 of 1882, p. 90. 1865. See for the bye-laws regulat- ing pilotage in this district, Ibid. ; and No. 268 of 1879, p. 44. 1866. See also for constitution and bye- laws of this port, 6 Geo. 4, c. civ. ; 18 Vict. c. 1.; and Bye-laws of 27th Peb. 1857, approved by Order in Council of 6th May, 1857 ; also Order in Council, 27th Nov. 1878 ; P. E. No. 174 of 1858, p. 88 ; No. 268 of 1879 ; and No. 325 of 1882. 30. Port of Southwold. 1. Generally. 1866a. Definition of limits of pilotage district: In and put of Southwold Har- bour ; and for constitution and bye-laws of this port, see 11 Geo. 4 & 1 Will. 4, c. xlviii. ss. 63 — 68 ; and for rates, P. E. No. 204 of 1874, Appendix ; and No. 222 of 1884, p. 54. 2. Compulsion and Exemption. 1866 J. The pilotage is compulsory for all vessels above forty tons register ton- nage (see the act, s. 64), subject to such exemptions as are applicable in Nos. 1574— 1642, pp. 1361— 1366; and 39&40 Viet. c. 36, s. 141. See 2 Maude & Poll. (4th ed. by PoU. & Bruce), p. 124. 31. Port of Sunderland. 1. Generally. 1867. Separate pilotage commissioners are constituted for the port of Sunder- land. See the Sunderland Pilotage Order Confirmation Act, 1865 (c. 59). 1868. The pilotage district of the port for the purposes of this order extends from the promontory or point called Souter Point, about two miles on the north side, to Eyhope Dene, about two miles on the south side of the harbour of Sunderland. Hid. s. 8. 1869. Por the bye-laws regulating pilotage in this district, see P. E. No. 260 of 1872, pp. 21 et seq. ; No. 276 of 1875 and No. 325 of 1882, p. 92 (repeal- ing previous bye-laws). See also Orders in Council, 29th June, 1871 ; 26th June, 1873; 20th Oct. 1874; and c. 13, p. 1375. 1870. See also Order in Council of June 29th, 1882, approving Bye-laws of Sun- derland Pilotage Commissioners. 1871. 2. Exemption. Nothing in this act obliges the owner or master of any vessel to employ any pilot in piloting such vessel into or out of the port, if he is not desirous so to do, or to pay any pilotage dues when not employing a pilot. See the Sunderland Pilotage Order Confirmation Act, 1865 (c. 59), s. 14* 32. Port of Swansea. 1. Generally.^ 1872. Definition of limits: — Swansea harbour and so much of the Bristol Channel as is included within the fol- lowing limits, viz.: "north of the line of the Nash Lights in one," and east of an imaginary Hne running north and south of a point four miles west of Hel- wick Light, near Worms Head. P. E. No. 325 of 1882, p. 98. 1873. As to the constitution and bye- laws of this port, see the Swansea Har- bour Act, 1854 (c. cxxvi.) ss. 154 — 162, 166, 175; Bye-laws of Swansea Harhour Trustees ; P. E. No. 5, Sess. 2 of 1857, p. 89 ; No. 288 of 1860, p. 83 ; No. 243 of 1861, p. 81 ; No. 416 of 1864, p. 73; No. 178 of 1871 ; No. 325 of 1882, p. 98; and No. 222 of 1884, p. 57. 1874. The Swansea Harbour Trustees are the pilotage authority for this port under the provisions of the Swansea Har- bour Act, 1854 (c. cxxvi.) 1875. Por the regulations as to pilotage made by this authority, see P. E. as to Pilotage, No. 178 of 1871, p. 27 ; No. 325 of 1882, p. 98 ; and No. 222 of 1884, p. 57. * (540) There has been no decision as to the construction of this provision with 41 Geo. 3, c. Ixxxvi. s. 6, and 39 & 40 Vict. c. 36, s. 141, or the M. S. Act, 1854 (c. 104), s. 354. See 2 Maude & PoU. (4th ed. by ~ " & Bruce), p. 119. by PoU. , f (541) Por bye-laws providing for and regulating the granting of pUotage certifi- cates for this district to masters and mates, see P. E. as to PUotage, No. 178 of 1871, p. 29. OWNERS. Part VII. Compulsory Pilotage. 1387 2. Compulsion, 1876. Pilotage is compulsory for all vessels exceeding sixty tons register, in- ward or outward bound. See P. E. No. 222 of 1884, p. 57, Bye-law 3. 1877. Masters requiring to move their vessels within the limits of the port (ex- cept from one part of the float to another) must employ a pilot. P. P. No. 325 of 1882, p. 98, Bye-law 21. 3. Exemption.* 1878. Vessels in ballast inward bound, not exceeding 100 tons burthen, are ex- empt, subject to the provisions of the M. 8. Act, 1854 (c. 104). P. E. No. 222 of 1884, p. 97, note to Bye-law 3. 33. The Tyne. 1. Generally. 1879. Separate pilotage commissioners are constituted for the pilotage district of the Tyne (exercising the jurisdiction therein formerly possessed by the Trinity House of Newcastle-upon-Tyne). See the Tyne Pilotage Order Confirmation Act, 1865 (c. 44); and the Tyne Pilotage Amendment Act, 1867 (c. 78). 1880. The pilotage district of the Tyne, for the purposes of the above order, in- cludes the whole Eiver Tyne, and extends seaward over a radius of seven miles. Ibid. s. 10. 1881. For the bye-laws and rates regu- lating pilotage in this district, see P. E. No. 325 of 1882, p. 102 (rescinding all previous bye-laws as from the 1st Oct. 1880). 1882. From and after 1st Oct. 1880, the distinction between sea and river pilots is abolished. Ibid. Bye-law 3. 1883. Thenceforth there shall be only one class of pilots, who may conduct ships of any tonnage. Ibid. 1884. Penalty against any pilot for breach of any of the bye-laws not ex- ceeding £5. Ibid. Bye-law 23. 1885. For bye-laws as to apprentice- ship and examination of pilots, see Ibid. Bye-laws 9 — 14. See also c. 13, p. 1375. 2. Exemption. 1886. Nothing in this act extends to oblige the owner or master of any vessel to employ any pilot in piloting his vessel into or out of the district, or within any part thereof, if he is not desirous so to do, or to pay any pilotage dues when not employing a pilot. Ibid. s. 16.f 34. The Tees. 1 . Generally. 1887. The Tees Pilotage Commissioners are incorporated by the Tees Pilotage Order, 1881, as a pilotage authority. See the Tees Pilotage Order, 1881, confirmed by the Tees Pilotage Order Confirmation Act, 1882 (c. 1); and P. E. No. 207 of 1883, p. 53. 1888. The pilotage district of the Tees includes the whole of the river Tees, and the ports of Stockton and Middlesborough, and extends from the southernmost end of the village of Seaton Carew to Hunt- cliffe, in Yorkshire. See s. 9 of the Order in the Schedule to the Act. 1889. All the bye-laws and rules pre- viously in force within the district are repealed. See Bye-laws of 26th June, 1882, approved by Order in Council of December 16th, 1882. 1890. There shall be two classes of pilots, viz., first and second class. First- class pilots may conduct vessels of any tonnage ; second-class pilots may only (except in cases of necessity) conduct vessels not exceeding 400 tons register. Ibid. Bye-law 3. 1891. Every pilot shall, within three years from the passing of the bye-laws, qualify himself to pilot vessels up to Stockton Bridge. Ibid. 1891a. For the rates of pilotage to be taken by both classes of pilots, see ibid. p. 56. 2. Exemption. 1892. Pilotage in the Tees is not com- pulsory. See the Tees Pilotage Order, 1881, supra, s. 15. •(542) See also such exemptions as are applicable in c. 9, s. 3, Nos. 1574—1642, pp. 1361—1366. t (543) There has been no decision as to the construction of this provision with 41 Geo. 3, c. 86, s. 6, and 39 & 40 Vict. c. 36, s. 141, or the M. S. Act, 1854 (c. 104), s. 354. See 2 Maude & Pollock (4th ed. by Pollock & Bruce, p. 119.) 4 V 2 1388 OWNERS. Part VII. Compulsory Pilotage. 35. Scotch Ports. 1. Aberdeen. (a) Generally. , 1893. Limits of pilotage district: — The harbour of Aberdeen and so far as not within the limits thereof as therein- before defined, the rivers Dee and Don upon both sides thereof, the coast between these rivers, and the coast south from the mouth of the river Dee to the extremity of the city's precincts or boundary on the Torry or south side of the river Dee : pro- vided that on the river Dee being diverted, as authorized by the Aberdeen Harbour Act, 1868 (c. exxxviii.), this enactment shall extend and apply to the river so di- verted. See P. E. No. 325 of 1882, p. 111. 18941 For the constitution, bye-laws, and rates of this port, see 31 & 32 Vict. c. cxxxvii. ss. 153—143 ; and P. E. No. 325 of 1882, p. Ill, and No. 222 of 1884, p. 65. (b) Compulsion. 1895. All inward-bound vessels must employ the first pilot who offers his ser- vices. Penalty, full pilotage. See P. E. No. 325 of 1882, p. Ill ; Bye-law 17. 1896. The pilot who first offers himself to a vessel in want of a pilot is entitled to the pilotage dues whether his services be accepted or not, unless another ar- rangement has been entered into with the sanction of the captain pilot. Ibid. (c) Exemption. 1897. Semble, pilotage is optional for outward-bound vessels. Ibid. 2. Arbroath or Aberbrothwick. (a) Generally. 1898. Limits of district: — The pilots are licensed for the harbour only. Ibid. p. 109. 1899. For constitution, regulations and rates of this port, see 2 & 3 Vict. c. xvi. s. 67 ; 27 & 28 Vict. c. xxxiii. ; and P. E. No. 325 of 1882, p. 109. 1900. For provisions relieving vessels which from stress of weather have entered this port without a pilot, but have received . a pilot in the fairway, from warping or pilot's charges other than the pilotage ■ dues. Ibid. p. 32 ; Eule 7. 1901. A pilot so received on board any such vessel must remain on board until she is safely moored. Ibid. (b) Compulsion. 1902. Pilotage is levied on all vessels using the harbour whether inward or outward bound. Ibid. p. 109 ; Eule 1. 1902a. Limits of district : The harbour of Ayr and the bed and channel of the river Ayr, and from the harbour to the bay of Ayr. See 18 & 19 Vict. c. cxix. s. 13. 3. Ayr. (a) Generally. 1903. For the constitution, bye-laws, and rates of this port, see 18 & 19 Vict, c. cxix. ss. 47, 48, 51, 82 ; 36 Vict. c. h. ; and P. E. No. 189 of 1880, p. 53; No. 325 of 1882, p. 115. 1904. For provisions as to the granting and renewal of pilotage certificates to masters of vessels, see P. E. No. 189 of 1880, p. 53. 1905. Pilots not engaged in navigating vessels over the bar must assist in moving vessels and in transporting them from one berth to another. Ibid. No. 325 of 1882, p. 115; Bye-law 46. (b) Compulsion. 1906. All vessels of forty tons burthen or upwards must pay pilotage, if pilot- age assistance has been duly offered, whether the pilots be employed or not. Ibid. No. 189 of 1880, p. 53. (c) Exemption. 1907. Vessels under forty tons register are exempt. Ibid. 1908. Vessels whose masters have ob- tained and held pilotage certificates in accordance with the regulations are also exempt. Ibid. 3a. Port of Burntisland. 1909. The limits of the district are de- fined as including the harbour and ex- tending to a distance of one mile and a half W. of the harbour, and to the island of Inchkeith E. thereof, and for a dis- tance from the land of one mile N. of those limits. The Burntisland Harbour Act, 1881 (c. clix.), s. 82. 1910. The Burntisland Harbour Com- missioners are incorporated as a pilotage authority by the Burntisland Harbour Act, 1881 (c. clix.). See P. E. No. 222 of 1884, p. 67. 1910a. No shipmaster or other person OWNERS. Part VII. Compulsory Pilotage. 1389 shall be bound to employ a pilot, either inwards or outwards. Ibid. Regulation 2. 1911. No harbour pilot already licensed shall ( unless he holds a Leith Trinity House Firth pilot's licence) proceed in search of ressels or go on board thereof at any place beyond one mile and a half "W. of the harbour, and to the island of Inch- keith E. thereof, and for a distance from the land of one mile 8. of those limits ; and no Firth pilot shall be entitled to go on board any vessel within those limits unless for the purpose of pilotage in the Firth and at full Firth pilotage fees. Ibid. Regulation 7. 1912. See for qualifications for pilots, Ibid. Supplementary Bye-Laws. 1913. See also Order in Council of 3rd Nov. 1882, approving bye-laws relating to pilotage in the harbour of Burntisland. 4. The Clyde {including Glasgow and Greenock). (a) Generally. 1914. Limits of pilotage district: The harbour of Glasgow includes, for the pur- poses of the Clyde Navigation Acts, the channel or waterway, docks, and works of the river Clyde to the east of the river Kelvin and to the west of Huncheson- town Bridge ; and the river Clyde in- cludes for the same purposes the channel of the river as far down as to a straight line drawn from the east end of Newark Castle on the south shore of the river to the mouth of Cardross Burn on the north shore of the river. See the Clyde Navi- gation Consolidation Act, 1858 (c. cxlix.), ss. 74, 75. 1915. See for provisions generally as to pilots in the Clyde, ibid. ss. 128 to 144. 1916. The principal acts regulating the navigation of the Clyde are the Clyde Navigation Consolidation Act, 1858 (c. cxlix.); the Clyde Navigation (Glas- gow Harbour Tramways) Act, 1864 (c. ccxlviii.) ; the Clyde Navigation Amendment Act, 1868 (c. cxxiv.) ; the Clyde Navigation (Stobcross Dock) Act, 1870 (c. liv.), with which are incorporated the Lands Clauses Consolidation (Scot- land) Act, 1845 (c. 19); the Eailway Clauses Act, 1863 (c. 92) ; and the Har- bours, Docks and Piers Clauses Act, 1847 (c. 27). 1917. By the bye-laws of the Clyde Pilot Board, all steam vessels must be supplied with a captain or sailing master, who shall be an experienced seaman ; and must also be manned with a sufficient number of able-bodied and experienced seamen for the safe navigation of the vessel. Held, that even if this bye-law applied to a vessel on her trial trip, and still in the ship-builder's hands, it was sufficiently complied with by the vessel being in charge of a licensed pilot who was assisted by a sufficient crew to bbey his orders. Clyde Navigation Co. v. Bar- clay, L. E. 1 App. Cas. H. L. 790 ; Cases in the Court of Session, 4th series, vol. 2, H. L. 842; 4th series, vol. 3, H. L. 44 ; 3 Asp. N.S. 390. (b) Compulsion and Exemption. 1917a. It is unlawful for any person to navigate without a pilot, licensed by the existing pilotage authorities, any vessel exceeding sixty tons burden in any part of the River Clyde as defined by this Act. Penalty for breach, not exceeding £5. The Clyde Navigation Consolidation Act, 1858 (c. cxlix.), s. 136. 191 7 J. See further as to Glasgow and Greenock, ss. 9 and 10, infra. 5. Dingwall Harbour. 1918. As to the pilotage authority of this harbour and the limits of the har- bour, see the Dingwall Harbour Order, 1867 (c. 33). The harbour is under the same rules and management as Leith, for which see ss. 13 and 14, infra. 6. Dundee. (a) Generally. 1919. Definition of limits : Six miles outside of the Fairway Buoy at the en- trance of the River Tay, up the river as far as Invergowrie on the north, and Bal- merinoch on the south side of the Tay. See P. R. No. 325 of 1882, p. 117. 1920. For statutory provisions regard- ing pilotage in the river and harbour, and constituting the trustees of the harbour the pilotage authority, see the Dundee Harbour Act, 1843 (c. lxxxiii.), ss. 125 — 148 ; and 38 & 39 Vict. c. cl. ss. 102— 126. 1921. The master of any vessel who signals or asks for a pilot, must accept the services of the first who, being duly qualified, offers himself. Penalty, not exceeding £10. See P. R. No. 325 of 1882, p. 117 ; Reg. 7. 1922. Pilots are required upon a signal from any vessel coming into or going out the River Tay to proceed at once to take 1390 OWNERS. Part VII. Compulsory Pilotage. charge of such vessel, if outward bound, from the place of mooring in dock or elsewhere within the precincts of the har- bour until one mile east of the Fairway Buoy, or (if required by the master) to any distance not exceeding six miles to the east of the said buoy ; or, if inward bound, until the vessel arrives at Dundee or Carolina Eoads, or is moored in the harbour, as may be directed by the mas- ter, subject to the directions of the har- bour-master. Penalty for breach, not exceeding £5, nor under £2 for each offence. See P. E. No. 325 of 1882, p. 117; Peg. 7. 1923. The master of any vessel outward or inward bound who, being unable to obtain the services of a duly-licensed pilot, has placed his vessel under the charge of an unlicensed person, shall, upon being boarded by any qualified pilot in any part of the River Tay below the docks of Dundee, surrender the charge of his vessel to such pilot. Pen- alty, full pilotage. Ibid. p. 118; Peg. 16. 1924. Pilots must attend vessels in the roadstead if required to do so by the masters. Ibid. Peg. 7. 1925. Penalty against any master or owner of a vessel who agrees to pilotage at a less rate than those authorized, not less than £5 nor more than £10, and balance of authorized pilotage. Peg. 17. Ibid. (b) Compulsion and Exemption. 1925a. Pilotage appears to be compul- sory. See P. E. No. 325 of 1882, pp. 117—119. 7. Fraserburgh. (a) Generally. 1926. Limits : Prom Cairnborg Point, about two and a quarter miles south-east of the harbour, to Pitullie Point, about two miles west from the harbour and two miles seaward. Ibid. p. 122. 1927. For constitution, regulations, rates, &c. of this port, see the Fraser- burgh Harbour Acts, 2 & 3 Vict. c. lxv. ; 20 & 21 Vict. c. xxxii. ; and 41 Vict. c. cii. 'BS. 42—120; and P. P. No. 325 of 1882, p. 117. 1928. The pilot who first offers him- self to a vessel in want of a pilot is entitled to the dues of pilotage, whether his services be accepted or not. See P. E No. 325 of 1882, p. 123; Eeg. 13. 1929. Pilots must remain in charge of vessels employing them until they are safely moored. Ibid. Eeg. 8. (b) Compulsion. 1930. The master of every inward- bound vessel must employ the first duly- qualified pilot who offers his services. Penalty, full pilotage and costs of re- covering the same. Ibid. 1931. Semble, all vessels pay pilot mas- ter's fees. Qucere, does this amount to compulsory pilotage on outward-bound vessels? Ibid. Eegs. 13 and 19. (c) Exemption. 1932. Qucere, is pilotage optional for outward-bound vessels ? Ibid. 8. Girvan Harbour. 1933. As to the pilotage authority of this harbour, and the limits of the har- bour, see the Harbour of Girvan Improve- ment Order, 1865, confirmed by the Pier and Harbour Orders Confirmation Act, 1865 (No. 3), c. 76. 9. Glasgow. (a) Generally. 1934. Limits of pilotage district — be- tween Glasgow and Greenock. P. E. No. 325 of 1882, p. 125. 1935. The pilots who are licensed by the Clyde Pilot Board consist of two classes, viz., river pilots licensed to pilot vessels between Glasgow and Greenock, and deep-sea pilots licensed to pilot ves- sels between Greenock and the Island of Little Cumbrae, including vessels pro- ceeding outwards from Port Glasgow or inwards to Port Glasgow. Ibid. Bye- law 1. 1936. See for regulations and rates of pilotage in this port, Ibid. No. 408 of 1867, pp. 126—128; No. 189 of 1880, p. 58 ; No. 325 of 1882, p. 125. See as to the Clyde, s. 4, supra. (b) Exemption. 1937. Pilotage is not compulsory in this port. Ibid. No. 189 of 1880, p. 58. 10. Greenock. (a) Generally. 1938. Limits of pilotage district— be- tween Greenock and the Island of Little Cumbrae, including vessels proceeding outwards from and inwards to port OWNERS. Part VII. Compulsory Pilotage. 1391 Glasgow. See P. R. No. 325 of 1882, p. 129. 1938a. The bye-laws and rates are the same as those in force at the port of Glasgow. Ibid. See as to the Clyde, s. 4, supra. (b) Exemption. 1939. Pilotage is not compulsory in this port. Ibid. No. 189 of 1880, p. 58. 11. Irvine. (a) Generally. 1940. Limits of pilotage district — from harbour to two miles from bar at entrance of harbour. Ibid. p. 130. 1941. As to the pilotage authority of this harbour, see the Irvine Harbour Im- provement Order, 1867, confirmed by the Pier and Harbour Orders Confirmation Act, 1867, No. 2 (c. 73) ; and see 36 & 37 Vict. o. cxxiv. s. 47. 1942. Pilotage inward is not complete until the vessel is safely moored. See P. R. No. 325 of 1882, p. 130. 1943. See for regulations, bye-laws and rates of this port, ibid. (b) Compulsion. 1944. Pilotage is compulsory on all vessels of 25 tons register or upwards. Penalty, full pilotage. Ibid. No. 408 of 1867, p. 131.* (c) Exemption. 1945. Vessels under twenty -five tons register are exempt. Ibid. 12. Kirkcaldy. (a) Generally. 1946. The limits of the district are : — From harbour to roadstead. See 12 & 13 Vict. c. xxx. ; 39 & 40 Vict. c. clxxix. ss. 64—71 ; and P. E. No. 516 of 1855, pp. 201, 202 ; and No. 325 of 1882, p. 131. 1947. See for the constitution, regula- tions and rates of this port, Ibid. (b) Compulsion and Exemption. ■ 1948. No vessel employed in the coast- ing trade shall be obliged to employ a pilot; and no vessel under sixty tons burden shall be obliged to pay pilotage, unless she employs a pilot; and the masters or commanders of ships belong- ing to the port of Kirkcaldy shall not be liable to pay any fees for pilots or pilotage, except where they make a signal for a pilot, or employ one to navigate their ships or vessels {semble pilotage is com- pulsory on other vessels). Ibid. Reg. 6. 13. Leith Trinity House. (a) Generally. 1949. Definition of limits: The Firth of Forth from Fife Ness on the N. of St. Abbs' Head. On the S. the corporation also have power to license pilots "for seas and firths and along the coasts and islands of the Northern and German Oceans." See P. R. No. 325 of 1882, p. 132. 1950. The jurisdiction of the Trinity House of Leith under their charter of incorporation of the 27th of July, 1797, and under 1 Geo. 4, c. xxxvii.,f and 5 Geo. 4, c. xxxix., does not extend to the district between Orfordness and the mouth of the Thames, which district is subject to the jurisdiction of the London Trinity House. Hossach v. Gray, The Ship Oscar, 34 L. J. M. C. 209 ; 2 Asp. 229 ; 6 Best & S. 598. 1950a. The jurisdiction of the Trinity House of Leith is confined to the coasts of Scotland. Ibid. 1951. For the bye-laws issued by this Trinity House, see P. R. No. 325 of 1882, p. 132. 1952. The Commissioners for the Har- bour and Docks of Leith having made a bye-law to the effect that no person shall in future be licensed, nor after being licensed shall continue to act as harbour pilot, unless he holds a Firth of Forth licence (excepting masters or mates li- censed for their own vessels), it is enacted (as arranged with the commissioners) that the limits of the harbour pilots shall be extended from a line to be drawn from Granton to Burntisland on the W., and from Pettycur to Portobello on the E., beyond which the harbour pilots are not to proceed in quest of vessels, nor go on board with a view to harbour pilotage. Ibid. Bye-law 10. 1953. Firth of Forth pilots in charge of vessels are only to continue in charge when within the limits of Leith Harbour, * (544) This regulation, however, is not repeated in the bye-laws for this port printed at p. 62 of the P. E. No. 232 of 1873, nor in those of 1882. t (544a) The act 1 Geo. 4, c. xxxvii. is de- clared to be a public act, and notice is to be taken of it without its being specially pleaded. See the act, s. 69. 1392 OWNERS. Part VII. Compulsory Pilotage. in case a harbour pilot should not b forthcoming. See P. E. No. 325 of 1882, p. 132; Bye-law 11. (b) Compulsion and Exemption. 1954. The rates, charges, and prices, therein enumerated, may and shall be lawfully demanded, exacted, and received by every pilot licensed by the Trinity House. {Qucere, is pilotage compulsory under this bye-law?) Ibid. Bye-law 15. 1954a. Pilotage is compulsory except for Queen's ships. See 1 Geo. 4, c. xxxvii. ss. 34, 35, 44. 14. Leith Harbour and Docks. (a) Generally. 1955. Definition of limits : The limits of the port and harbour of Leith ex- tend from a point at a bridge beyond or E. of Seafield ToU Bar; on the E. of Leith to Wardie Brow or Brae, to the W. of Newhaven and halfway across the Eirth of Eorth. See 38 & 39 Vict. c. clx. ss. 7 and 74, but these limits have been extended for pilotage purposes (see Bye- law 10 of Leith Trinity House, supra). See P. E. No. 325 of 1882, p. 138. 1956. No person shall in future be licensed, nor after being licensed continue to act as a harbour pilot, unless he holds a Eirth of Eorth pilot's licence (excepting masters and mates of vessels licensed for their own vessels only). Ibid. Bye- law 4. 1957. Eor constitution, bye-laws, and rates of this port, see Order in Council, 28th July, 1856; Ibid. 30th July, 1860; 38 & 39 Vict. c. clx. ss. 69—71 ; and P. E. No. 325 of 1882, p. 138. (b) Exemption. 1958. There is no compulsory pilotage. See P. E. No. 325 of 1882, p. 138 ; Bye- law 2. 15. Lossiemouth. 1959. Limits of pilotage district: To and from the harbour. See P. E. No. 222 of 1884, p. 81. 1960. An. inward and outward pilotage rate of Sd. per ton appears to be levied on all vessels. Ibid. 1961. There are no bye-laws, orders, or regulations beyond the provisions of the local act, for which see 19 & 20 Vict. c. lxxiii. ss. 57, 58, 16. Port of Macduff. (a) Generally. 1962. Limits of district: There is no dis- trict, any work that is done beyond a rea- sonable distance is a matter of agreement between the pilots and shipmaster. Vessels often pick up pilots at the fishery grounds 10 or 12 miles from the harbour, and are piloted in from there without any extra charge. P. E. No. 325 of 1882, p. 141. 1963. Pilotage appears to be levied on all vessels inward or outward bound. Eor the rates, see Ibid. 1964. There are no bye-laws for this port. Ibid. 1965. Eor the constitution of the port, see 10 & 11 Vict. c. cxxvii., and for rates, see Schedule D. to the act. (b) Compulsion and Exemption. 1965a. The pilotage is compulsory, but vessels under twenty tons are exempt. Ibid. s. 13. 17. Port of Peterhead. (a) Generally. 1966. No additional allowance (be- yond those specified in the bye-laws) shall be made to a pilot taking charge within the limits defined by the following bearings : — if a vessel making signals for a pilot, viz. within a line passing through the eastern extremities of the rock of Dunbuy and the promontory of Buchan- ness, and projected northwards until it intersects a line projecting eastwards, passing through the southern extremity of Mormond Hill and the farmhouse of Kinloch. P. E. No. 325 of 1882, p. 142, Bye-law 12. 1967. Eor constitution, bye-laws and rates of this port, see 36 & 37 Vict.' c. clvii. ss. 67 — 74 ; 39 & 40 Vict. c. clxxiv; and P. E. No. 325 of 1882, p. 142. (b) Compulsion. 1968. Pilotage is compulsory upon all vessels either entering or leaving this port. Penalty £5 and full pilotage. See P. E. No. 325 of 1882, p. 142. Bye- law 8. (c) Exemption. 1969. Masters of vessels are exempt from availing themselves of the services of any pilots who, being required so to do, fail to produce the badges, licences or copies of the regulations with which they are furnished. Ibid. Bye-law 19. OWNERS. Part VII. Compulsory Pilotage. 1393 18. Rosehearty. (a) Generally. 1970. Definition of limits: The port extends 2£ miles from the harbour, within a line projected northwards from the spire of the parish church of Fraserburgh, passing through the position of the Kinnaird Head Light- house till it meets a line projected east- wards from Troup's Dovecot, passing through the position of the Tamhead or the seaward extremity of the old pier of Kosehearty. See P. E. No. 325 of 1882, p. 144, and No. 222 of 1884, p. 85, Bye-law 12. 1971. There appears to be a rate of 3%d. per registered ton for every vessel piloted into and out of the harbour with a boat and four men. Ibid. 1972. As to the constitution of this port, see Provisional Order of the Board of Trade relating to Eosehearty, con- firmed by the Pier and Harbour Orders Confirmation Act, 1863, c. 104. 19. Sandhaven. (a) Generally. 1973. The port of Sandhaven is incor- E orated as a pilotage authority. See the andhaven Harbour Order, 1873, c. lxiii. 1974. Pilots for landing passengers shall be entitled to be paid, if they are taken on board within the limits of the port, for one passenger 6*., and for each additional passenger in the same boat 2*. 6d., and if not as maybe agreed upon. No. 14 of Bye-laws, gazetted 27th March, 1877. 1975. Pilots shall remain in charge till vessel is duly moored. Ibid. Bye-law 6. (b) Compulsion and Exemption. 1976. Pilotage appears to be compul- sory. See P. E. No. 222 of 1884, p. 85. 1977. But tug steamers duly licensed while employed only in towing vessels into and out of the harbour are exempt. Ibid. 20. Wick. 1978. Definition of limits: "Within a line drawn from the North Head to the South Head of Wick Bay. P. E. No. 325 of 1882, p. 145. 1979. See, as to the constitution of the port, 25 & 26 Vict. c. clxxx. ss. 22—24. 1980. A pilotage rate of 4c?. per regis- tered ton is levied on all vessels above twenty tons entering or leaving the har- bour. Ibid. 1981. In the event of any vessel carry- ing a pilot outside the limits and landing him on any part of the coast, his travel- ling expenses shall be paid. Ibid. 1982. Vessels which have sailed from the harbour and put back by stress of weather, or from any other cause, with- out having accomplished their voyage, are not liable to additional pilot rates. Ibid. 36. Irish Ports. 1. Ardglass Harbour. 1983. As to the pilotage authority of Ardglass Harbour, see the Ardglass Har- bour Order, 1866 (c. 58). See also 39 & 40 Vict. c. ccxxxvi. 2. Ballina. 1984. Limits of pilotage district : Out- side — Kilcammin Head, Enniscrone and Pollacheeny; inside — from quay to bar. See P. E. No. 325 of 1882, p. 147. 1985. See, as to constitution of the port, 23 & 24 Vict. c. clxv. ss. 39—44. 1985a. There are no bye-laws as to pilotage for this port. See P. E. No. 189 of 18«0, p. 70. 1986. For every ship or vessel coming into or departing from the Eiver Moy and harbour of Ballina, from any port or ports other than a port in the United Kingdom or the British colonies, a sum not exceed- ing the sum of 3*. per foot of admeasure- ment for each entry or departure, at the discretion of the Harbour Commissioners, is payable for pilotage. Ibid. No. 325 of 1882, p. 147. 1987. And for every ship or vessel from any port or ports in Great Britain or Ireland or the British colonies, a sum not exceeding the sum of 2*. per foot of ad- measurement, at the discretion of the Commissioners. Ibid. 3. Belfast. (a) Generally. 1988. Limits of pilotage district : From Larne Harbour, County Antrim, to Bally- halbert Bay, County Down. See P. E. No. 325 of 1882, p. 148. 1989. See for constitution, regulations and rates of this port, ibid, and 10 & 11 Vict. c. lii. 1990. A pilot when on board a vessel is not permitted to take the helm, which must be in charge of one of the crew, to 1394 OWNERS. Part VII. Compulsory Pilotage. ■whom he shall give his orders. See P. R. No. 325 of 1882, p. 148, Reg. 3. 1991. Vessels of a greater draft of ■water than 16 feet are not to be brought into the mouth of a dock, without the previous consent of the harbour master in charge. Ibid. Reg. 12. 1992. It is the duty of the pilot, mas- ter, and everyone on board a pilot boat or at the lighthouse, to prevent any breach of the Revenue laws. Ibid. Reg. 14. 1993. Pilots employed by outward- bound vessels must not leave them until they are in a safe part of the Whitehouse Roads; but •when they are required to take such vessels below Carrickfergus from the "Whitehaven Roads, such vessels are to pay an additional rate. Ibid. Reg. 23. 1994. For bye-laws giving the regula- tions to prevent collisions to be observed by pilots who are navigating steamers in this port, ibid. Reg. 8. (b) Compulsion. 1995. Pilotage is compulsory in the port and harbour of Belfast under the provisions of the Belfast Harbour Act (10 & 11 Vict. c. Hi). The Be Brus, L. R. 1 Eq. 72 ; The Arbutus, 2 Asp. 136. [Ieish.] 1996. Every vessel, whether inward or outward bound, must employ the first pilot who, being duly qualified, offers his services in accordance with the bye-laws. See P. R No. 325 of 1882, pp. 150, 151. (c) Exemption. 1997. Masters of inward-bound vessels are exempt from accepting the services of pilots who are not supplied from the pilot smack, one of the pilot boats, or the lighthouse at Holywood Bank. See P. R. No. 325 of 1882, p. 148, Reg. 1. 3a. Carlingford Bar. 1998. Limits of pilotage district : The bar of Carlingford Lough to "Warrenpoint Roads. Ibid. p. 173. 1998o. The Harbour of Carlingford Lough Improvement Commissioners are constituted the pilotage authority of this port. See the Harbour of Carlingford Lough Improvement Order, s. 23, con- firmed by the Pier and Harbour Orders Confirmation Act, 1864 (c. 93). 1999. A pilot, when in charge, is not permitted to take the helm, but must give nis orders to one of the crew. See P. R. No, 325 of J882, p. 173, Bye-law 4. 2000. Pilots are not permitted to anchor vessels in their charge either in the Cut on the Bar, or between the Frazer Buoy to the south and the "Watson Buoy to the north, except under circumstances of great emergency. Penalty not exceeding £5. Ibid. Bye-law 5. 2001. Pilots, when in charge, are not to quit vessels till the service is complete. Penalty not 'exceeding 40s. Ibid. Bye- law 6. 2002. It is the duty of pilots to prevent any breach of the Revenue laws. Ibid. Bye-law 7. 2003. As to pilotage rates, see P. E. No. 222 of 1884, p. 90. 4. Coleraine. 2004. Limits of pilotage district: The River Bann, from the Salmon Leap ahove the town of Coleraine to an imaginary boundary line at sea, running through a point northward of the mouth of the river, and distant 500 yards from low- water mark at mouth of river. P. E. No. 325 of 1882, p. 153. 2005. The Coleraine Harbour Trustees are constituted a pilotage authority. See the River Bann Navigation Act, 1879 (c. clxxv.), s. 83 ; and P. R. No. 222 of 1884, p. 90. 2006. No new bye-laws as to pilotage for this port have as yet been issued by this authority, the bye-laws adopted being those of the Coleraine Town Commission, acting as a harbour authority under the River Bann Navigation Act, 1 863 (cap. a), which has been repealed by sect. 7 of the above-named act. See P. R. No. 222 of 1884, p. 90. 2007. No printed return exists. Owing to the expense incurred by vessels enter- ing the port, the Harbour Commissioners exempt from pilotage rates all vessels towed into the river. The Harbour Com- missioners have agreed with a tug-owner that he shall receive all the towage paid by sailing vessels which are supplied with pilots without charge. They are 1*. per register ton in and out if in ballast; 1*. 2d. in and out if in cargo. Ibid. 2008. Steamers are charged the ordi- nary pilot rate, viz. : Is. 6rf. per foot in- wards, and 9d. per foot outwards. Ibid. 5. Cork. (a) Generally. _ 2009. Limits of pilotage district : The river, harbour, and port of Cork, the S. OWNERS. Part VII. Compulsory Pilotage. 1395 or seaward boundary of -which, is a straight line extending from Poor Head on the E. to Cork Head on the W. See P.E. No. 325 of 1882, p. 154. 2010. As to the constitution, bye-laws, and rates of this port, Ibid. ; and see 1 Geo. 4, c. lii. 2011. Pilots before leaving a vessel are to moor her, in accordance with the bye-laws. Ibid. Bye-law 5. 2012. No pilots are allowed to go as coasting pilots. Ibid. Bye-law 8. 2013. When any vessel or lighter in charge of a pilot does or receives any damage, the pilot shall not continue to act as a pilot, but shall deposit his licence with the commissioners until the case is investigated. Ibid. Bye-law 12. (b) Exemption. 2014. Pilotage is not compulsory in this port. Ibid. p. 154. 2015. Semble, the General Pilot Act (c. 125) is confined to England, and was never intended to apply to Ireland at all. Owners of a damaging vessel running into another vessel in Cork Harbour con- demned in the damage, the pilot in charge not being taken under compulsion. The Eden, 2 W. Eob. 442. 6. Drogheda. (a) Generally. 2016. Limits of pilotage district : Prom that part of the open sea between Ologher Head and the Skerries to quays of Drog- heda, and from quays to bay. See P. E. No. 325 of 1882, p. 156. 2017. See for constitution, bye-laws and rates of this port, ibid, and 5 Vict. sess. 2, c. lvi. ss. 200 — 205. 2018. H no pilot offers his services to the master of a vessel before such vessel shall arrive between Clogher Head and the Skerries, or whilst the vessel lies between those points, such vessel having had for at least fifteen minutes previous the usual signal or flag for a pilot flying, then it shall be competent for such master to appoint as pilot thereof any person whom he deems qualified. Ibid. (b) Compulsion. 2019. Pilotage is compulsory upon all sailing vessels, whether inward or out- ward bound. Penalty, full pilotage. Ibid. (c) Exemption. 2020. Steamships are exempt from pilotage. Ibid. 7. Dublin. (a) Generally. 2021 . The limits of the Dublin pilotage district are : On the north, an imaginary straight line drawn from a point on the coast of Ireland, between Balbriggan and Skerries, in the same latitude as the Eock-a-bill Lighthouse^, and through Bock-a-bill Lighthouse to a point at sea three leagues distant from the nearest land on that part of the Irish coast. On the south, an imaginary straight line drawn from a point on the east coast of Ireland, situated in the same latitude as South Arklow lightship, and through the lightship on the south end of the Arklow Bank, and thence to a point at sea three leagues distant from the nearest land on that part of the Irish coast. On the east, by an imaginary line drawn from the seaward extremity of the northern boun- dary line of a point at sea three leagues eastward of the headland called the Nose of Howth, thence to a point at sea three leagues eastward of the headland called Wicklow Head, and thence until it joins the seaward extremity of the southern boundary line. See P. E. No. 325 of 1882, p. 158. 2022. See for the constitution, bye-laws and rates of this port, ibid. p. 158 ; and the Dublin Port and Docks Act, 1869 (cap. c.) ss. 20—39. 2023. Pilots in charge of vessels must keep a good look-out, and must not take the helm. They must give directions as to the navigation, and must observe the International Eegulations for Preventing Collisions. They must also see that the lead is kept going. P. E. No. 325 of 1882, Bye-law 3. 2024. Pilots in charge of inward-bound vessels other than coasters, must take soundings before berthing to ensure an even keel in case of grounding, and must remain in charge until the vessels are safely moored. Ibid. p. 72. Bye-law 4. 2025. Pilots must report to the pilot superintendent any accidents occurring to vessels under their charge. Ibid. Bye- law 5. (b) Compulsion. 2026. Vessels entering or leaving the port of Dublin or harbour of Kingstown must employ licensed pilots within the Dublin Pilotage District. Ibid. No. 292 of 1876, p. 74. 2027. Atthe portof Dublin the pilotage is compulsory — per the Lord Chancellor. The Meteor, 9 Eq. 573. [Irish.] 1396 OWNERS. Part VII. Compulsory Pilotage. 2028. A steam-tug, carrying passengers between Kingstown Harbour and the North. Wall, Dublin (both of which places are, under the provisions of the Dublin Port and Docks Act, 1869, cap. c, within the limits of the port of Dublin), is within the meaning of sect. 354 of the M. S. Act, 1854 (c. 104), and obliged to carry a pilot. Dublin Port and Bocks Board v. Shannon, 7 C. L. 117. [Ieish.] (c) Exemption.* 2029. Vessels in ballast and coasting vessels not exceeding fifty tons burden, or being laden with fish in bulk or pota- toes, are exempt. See P. E. No. 292 of 1876, p. 74. 8. Dundalk. 2030. Definition of limits : Prom an imaginary line drawn straight from sea- ward end of Dunany Point to seaward end of Cooley Point, to Dundalk Quays (for inward pilots). Quay to Bar or Light- house (for outward pilots). Ibid. No. 325 of 1882, p. 163. 2031. See for constitution, bye-laws, and rates, ibid, and 18 & 19 Vict. (c. clxxxix), ss. 89 — 99. 2032. Vessels in ballast taking a tug- boat out, pay no pilotage. See P. E. No. 408 of 1867, p. 151. 9. Galway. (a) Generally. 2033. Limits of pilotage district : Divided into two districts. The outer extends from a line from Gulin Head in the county of Galway to the west point of the Arran Islands in that county, and from thence to Hags Head in the county of Clare and to the roadstead of Galway in the county of the town of Galway. The inner ex- tends from the roadstead to the docks and quays. See P. E. No. 325 of 1882, p. 165. 2034. See for constitution, bye-laws, and rates, ibid, and 16 & 17 Vict. c. ccvii. ss. 62—73 ; 23 & 24 Vict. c. ccii. ss. 53, 54. (b) Compulsion. 2035. Pilotage is compulsory for vessels proceeding from Galway roadstead to dock, and vice versd. P. E. No. 178 of 1871, p. 66. (c) Exemption. 2036. Vessels proceeding from Arran Island to Galway roadstead, or vice versd, are exempt. Ibid. 10. Limerick.\ (a) Generally. 2037. Definition of limits : From quays and docks of Limerick to Loop Head and Kerry Head at the mouth of the river Shannon. See P. E. No. 325 of 1882, p. 167. 2038. See for constitution, bye-laws, and rates, ibid, and 4 Geo. 4, c. xciv. ss. 72, 73; 10 & 11 Vict. c. cxcviii. (b) Exemption. 2039. Pilotage does not appear to be compulsory. See P. E. No. 266 of 1878, p. 82. 11. Londonderry. (a) Generally. 2040. Definition of limits : From one mile outside or seaward of the north- east buoy on the Tuns Bank to bridge at Londonderry. See P. E. No. 325 of 1882, p. 169. 2041. See for constitution, bye-laws, and rates, ibid, and 19 & 20 Vict. c. lxvii. ss. 57, 58. 2042. Pilots are not to be paid by the commissioners, till they produce a certifi- cate signed by the master of the vessel of which they have been in charge to the effect that they have done their duty. P. E. Ibid. (b) Compulsion and Exemption. 2043. Pilotage appears to be compul- sory on all vessels except vessels of forty tons register and under, when sailing in ballast. Ibid. 12. New Ross. (a) Generally. 2044. Definition of limits : From the junction of the river Barrow with the river Suir, to the entrance of the canal * (545) The term "coasting vessel" or t (546) Pilots at this port are not incor- " coaster " means a vessel trading from any porated, but merely licensed by the Harbour part of the United Kingdom and coming \ Commissioners, who have no knowledge of into the port. See P, B. as to Pilotage, : their "receipts. Ibid. No. 325 of 1882. No. 292 of 1876, p. 74. OWNERS. Part VII. Compulsory Pilotage. 1397 at St. Mullins, on the river Barrow, and to the Lock Quay of Inistioge, on the river Suir. Ibid. p. 171. 2045. For constitution, bye-laws, and rates, Ibid, and 24 & 25 Vict. c. cxl. bb. 59 — 65; 37 & 38 Vict. c. cxvi. ; and see s. 16, infra. (b) Compulsion. 2046. All vessels bound to this- port must take pilots of the Port of Water- ford from the entrance of that harbour to the junction of the rivers Suir and Barrow, where this port commences. See P. E. No. 408 of 1867, p. 154. 13. Newry. (a) Generally. 2047. Definition of limits: From Lough Carlingf ord to the entrance of the Newry Canal, or, in strictness, the river of Newry. See P. E. No. 325 of 1882, p. 174. 2048. See for constitution, bye-laws, and rates, Ibid. ; see also 10 Geo. 4, c. cxxvi. ss. 67 — 74; and Order in Council of 16th May, 1878. (b) Exemption. 2049. Pilotage is not compulsory in this port. P. E. No. 325 of 1882, p. 174. 13a. Portrush. 2050. A vessel is to be considered piloted to Portrush when safely moored within the harbour, and to be considered piloted out when safely at sea. See P. E. No. 222 of 1884, p. 100. 14. Sliyo. 2051. Definition of limits : From Wheaton Eock to Quays. Ibid. No. 325 of 1882, p. 176. 2052. See for constitution, bye-laws and rates, Ibid. No. 222 of 1884, p. 101, and 40 Vict. c. xxxv. ss. 86—106. 2053. In case of steamers or other vessels refusing pilots inward, the men so offering and refused shall immediately report the case to the pilot master, and by letter to the secretary, that day. See P. E. No. 222 of 1884, p. 101, Bye-law 20. 15. Tralee. 2054. No returns are furnished for this port. Ibid. p. 103. 2055. For constitution, see 9 Geo. 4, c. xcviii. ss. 70 — 75. 2056. Pilotage appears to be optional. See P. E. No. 266 of 1878, p. 89. 16. Waterford. (a) Generally. 2057. Definition of limits : On the E., an imaginary straight line drawn from a point on the coast of Ireland, at or near the headland called Cross- furnoge Point, in the county of Wex- ford, to a point at sea, three leagues S. of Crossfurnoge Point. On the W., an imaginary straight line drawn from a point on the coast of Ireland, at or near the headland called Great Newtown Head, in the county of Waterford, to a point at sea one league S. of Great New- town Head. On the S., an imaginary straight line drawn from the seaward extremity of such eastern boundary line to the seaward extremity of such western boundary line. On the N., an imaginary line drawn from Granagh Castle to Bil- berry Eock, about one mile above Water- ford Bridge. See P. E. No. 325 of 1882, p. 178. 2058. For constitution, bye-laws, and rates of this port, see the Waterford Har- bour Act, 9 & 10 Vict. c. ccxcii. ; and P. E. No. 178 of 1871, p. 71 ; and No. 325 of 1882, p. 178. (b) Compulsion. 2059. Pilotage is compulsory in this port. ' See the Waterford Harbour Act, 1846 (c. ccxcii.). (c) Exemption. 2060. Although pilotage is compulsory in the port of Waterford under the Water- ford Harbour Act, 9 & 10 Vict. c. ccxcii. it is not necessary to employ a pilot to remove a vessel from one berth to another within the port, and if while a vessel is being so moored a collision occurs, her owners cannot as a defence set up com- pulsory pilotage. The Victoria, T. E. 1 Eq. 336. [Irish.] 2061. Coasting vessels not exceeding twenty tons register are exempt. See P. E. No. 178 of 1869, p. 99. 17. Westport. 2062. Definition of limits : From Har- bour to Inishgort lighthouse. See P. E. No. 325 of 1882, p. 180. 2063. As to constitution, see 16 & 17 Vict. c. clxxxv. bs. 24 — 28. 2064. There are no bye-laws as to 1398 OWNERS. Part VII. Compulsory Pilotage. pilotage, which appears to be optional. See P. E. No. 189 of 1880, p. 84 ; and No. 222 of 1884, p. 105. 18. Wexford. (a) Generally. 2065. Definition of limits: The har- bour extends to and comprehends the area lying within an imaginary line drawn straight from Blackwater Head to the N. end of the Long Bank, and thence along the western edge of that bank to the southern end thereof, and thence straight to Greenore Point.' See P. E. No. 325 of 1882, p. 181. 2066. See as to constitution, bye-laws, and rates, the Wexford Harbour Act," 1874 (c. xl.), ss. 72—85 ; Order in Council, 26th Oct. 1875; and P. E. No. 325 of 1882, p. 181, and No. 222 of 1884, p. 106. (b) Compulsion. 2067. Pilotage is levied on all vessels entering or leaving this port. Ibid. No. 325 of 1882, p. 182. 37. Foreign Ports.* 1 . Bilbao and Santander in Spain. 2068. Pilotage is compulsory in the port of Santander, in Spain, for vessels exceeding 50 tons. See Eoyal Order of 17th March, 1855. 2069. Also in the port of Bilbao. 2. Colombo. 2070. All vessels above 200 tons bur- then, arriving within this port, and vessels taking pilots, shall pay pilotage at the rate of fifteen shillings inwards and outwards. See Governor's Order of 6th January, 1866. 2071. Pilots detained on board longer than forty-eight hours are entitled to claim eight shillings for every day's de- tention after that time. Ibid. 3. River Hooghly, Calcutta. 2072. A collision took place in the Cowcolly Eoads, one of the channels in the Hooghly river, near Calcutta. By an act of the Indian Legislature, it is made compulsory upon the master to take a pilot on board in every port sub- ject to the provisions of that act. Held, that the Cowcolly Eoads, the place of the collision, was not a port within the mean- ing of the act, and that the owners were therefore responsible for the damage, though the fault of the pilot only. The Peerless, 1 Lushington, 30, 103; 13Moore, P. C. C. 484; 30 L. J. Adm. 89. 4. St. Peter Port, Guernsey. 2073. Steamers held not bound to take a pilot in entering the harbour of Saint Peter Port (Sir W. Collings dissenting). Hughes-?. Manger, Eoyal Court, Guernsey; Guernsey Star, 6 L. T. N.S. 915. 5. Australia. 2074. After 1st December, 1884, the employment of a pilot at Port Pirie, and Port Augusta, will not be compulsory, and Port Adelaide will be the only port in South Australia where pilotage is com- pulsory. See Nautical Magazine for January, 1885, p. 96. 6. Canada. 2075. In Canadian waters the Canadian Act, 27 & 28 Vict. c. 58, s. 9, exonerates the owner and master, as in England, from liability for damage inflicted on another vessel, while employing a pilot compulsorily. The Hibernian, L. E. 4 P. C. 511; 1 Asp. N.S. 491. 2076. Pilotage is compulsory between Quebec and Montreal for all vessels over 125 tons. Ibid. ; see also 27 & 28 Vict.- c. 58, s. 9. 7. The Bahamas. 2077. For provisions as to pilotage in the Bahamas, see the Bahamas Acts, 33 Vict. c. 16 ; 43 Vict. c. 6 ; Prov. Act, 45 Vict. c. 7 ; and Prov. Acts, 26 Vict. c. 10 ; 27 Vict. c. 26 ; and 29 Vict. c. 12. 38. Pilot in charge. 1. Generally. ,f 2078. When a statute inflicts.a penalty for not doing an act, the penalty implies * (547) In the United States, where there is any choice as to the particular pilot em- ployed, owners remainliable. Smithy. Gondry, 1 How. 28 ; Parsons on Shipping, 117, note ; The China, 7 Wallace, 53, 67, Law Times, May 14, 1881. [American.] t (547a) The fact of one of a class of pilots appointed by government being compulsorily employed does not free the shipowner and master from liability for damage sustained by a passenger and his luggage through the fault of the pilot, though the pilot may be OWNERS. Part VII. Compulsory Pilotage. 1399 that there is a legal compulsion to do the act, and this principle is not affected by the fact that the penalty has a particular destination. Bedpath v. Allen, The Hi- bernian, L. E. 4 P. C. 511 ; 42 L. J. Adm. 8. 2079. To exempt the shipowner, the pilot must he solely to blame. The Mobile, Swabey,. 69, 128; 10 Moore, P. 0. 0. 471 ; 4 W. E. 708 ; The Minna, L. E. 2 A. & E. 97 ; The Diana, 1 W. Eob. 135 ; 10 Jur. 135; The Protector, 1 W. Eob. 45 ; The Massachusetts, ibid. 373 ; The Manchester, 8 Monthly Law Mag. (Notes of Cases), 183; The Ripon, 6 ibid. 248; The Fama, 2 W. Eob. 184 ; Stuart v. Isemonger {The Diana), 4 Moore, P. C. 0. 11; 6 Jur. 157; The Atlas, 5 Notes of Cases, 52 ; The Christiana, 7 Moore, P. C. C. 171 ; The Lochlibo, 7 Moore, P. C. C. 427 ; 14 Jur. 1074 ; The Admiral Boxer, Swabey, 195 ; The Schwalbe, 4 L. T. N.8. 162; 1 Lushington, 239; 14 Moore, P. 0^0. 241 ; The Netherlands Steamboat Co. v. Styles {The Batavier), 9 ibid. 286; Catts v. Herbert, 3 Stark. 12 ; Rodriguez v. Melhuish, 10 Exch. 110 ; 24 L. J. Exch. 26 ; Bennett v. Moita, 7 Taunt. 258 ; Bow- cher v. Noidstrom, 1 Taunt. 568. 2080. The pilot had left the deck for a few minutes, having given directions to the mate for the sailing of the vessel in his absence. The mate negligently brought the vessel into a critical position with regard to another vessel. The pilot then returned, and improperly hard-a-ported. The Privy Council found that both the mate and the pilot were to blame for the collision, and held that the owners were liable. 10 Moore, P. C. C. 471 ; The Mobile, Swabey, 71, 128. 2081. Semble, owners are not deprived of the benefit of compulsory pilotage by the fact that after a collision their vessel did not render the assistance required by sect. 33, now repealed, of the M. S. Act Amendment Act, 1862 (c. 63). The Queen, The Lord John Russell, L. E. 2 A. & E. 354 ; 38 L. T. N.S. Adm. 39 ; 3 Asp. 242. 2082. By Art. 4 of the Eegulations for the navigation of the Suez Canal, certain vessels must take a company's pilot, whose duty it is to assist the master, but the responsibility as regards the manage- ment of the ship is to devolve solely on the master. In an action of collision, held that the company's pilot is not placed in charge of the vessel so as to raise the defence of compulsory pilotage. The Guy Mannering, 7 P. D. 52; ibid. 0. A. 132 ; 51 L. J. P. D. 17 ; ibid. C. A. 57 ; 4 Asp. 485 ; ibid. C. A. 553* made a defendant. Sherloch v. Ailing, 15 Alb. Law Jour. 78. [American.] (6476) The learned editor of the Maritime Law Oases, in reference to the American law, observes : — Although the decisions of Ameri- can courts have been adverse to the English doctrine that compulsory pilotage exempts even without express statutory exemptions, from liability for the acts of a pilot, yet they have held that where an English statute renders pilotage compulsory, and an Ameri- can ship takes a pilot on board under that statute in English waters, she is entitled in a suit brought in an American court to the exemption given by English law. Smith v. Coultry, 17 Peters' (U. S. Supreme Court) Eep. 20 ; 1 Howard's, Ibid. 28. See also Camp v. The Ship Marcellus, 1 Clifford's U. S. Circuit Court (1st Circuit) Eep. 481 ; and The Alabama, 1 Benedict, District Court (S. Dist. of N. T.) Eep. 477. (548) In Germany (Art. 740), the owners are relieved when the fault is that of the pilot. (548a) In Portugal (Art. 1583), though the liability of the captain, and through him of the ship, is not removed, yet he has a remedy over against the pilot and the board who appoints him. _ (5486) In France a captain remains^ respon- sible for the manoeuvres of his ship, even when he has a pilot on board by compulsion of law. D. P. 1875, III. 97. * (549) As to the relative duties and obli- gations of captains and pilots in the Suez anal — Art. 1. If the employment of the Silot is voluntary, the captain's responsibi- ty. to third parties remains intact. 2. If the employment is compulsory, and the cap- tain is bound to give up the conduct and command of his ship to him, the responsibi- lity of the captain and owner is suspended, and that of the person who has imposed the pilot substituted (say his remedy over against the pilot himself). 3. If the employment of the pilot is compulsory, but only as an expert counsellor, the captain who has not been ousted from his command preserves his liability towards third parties. But the pilot-coun- sellor and the person who has compelled his employment, are responsible to the captain for erroneous direction as to the route, and faulty intelligence as to the condition of any places given by the pilot. The person who has compelled the employment of the pilot is responsible to third parties for the bad judg- ment (mauvais avis) of the pilot in respect of his local knowledge, whilst in this case the pilot is not responsible to third parties. In short, as to third parties, the full responsi- bility of the captain in command avers that of the pilot-counsellor, whilst he who ap- 1400 OWNERS. Part VII. Compulsory Pilotage. 2083. A British steamer in Belgian waters, and by Belgian law compulsorily in charge of a pilot, damaged a Nor- wegian barque. The owners of the Steamer claimed exemption from liability for the collision on the plea of compul- sory pilotage. By Belgian law the com- pulsory employment of a pilot does not exempt owners from liability for damage caused solely by his negligence or want of skill. Held, by the Judicial Committee (reversing the decision of the Admiralty Court) that the case was ruled by the provisions of English statute law and by the practice of the Admiralty Court, under which the owners of the steamer were exempt from liability. The Halley, L. E. 2 A. & E. 3 ; 2 P. C. 193. , 2084. Semble, the owners of a vessel proceeded against in a cause of collision, and decreed solely to blame, having been dismissed from the suit by reason of the vessel being in charge of a compulsory pilot and having neither appealed from the decree nor adhered to the appeal brought by the owners of the vessel in- jured (the plaintiffs in the court below), cannot, in such circumstances, raise the question whether their vessel was free from blame, or whether both vessels were equally in fault, but are confined to the points raised by the appeal, whether the pilot was solely to blame, or whether there was not contributory negligence on the part of the master and crew of the vessel causing the damage. The Calabar, L. E. 2 P. C. 238. 2085. A general enactment in a later statute does not repeal a particular enactment in an earlier statute, unless the intention to do so is manifest, or the implication irresistible. Sect. 388 of the M. S. Act, 1854 (c.104), enacts that, no owner or master of any ship shall be answerable for any 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. Sect. 96 of the Thames Conservancy Act, 1857 (c. cxlvii.), enacts that the owner of every vessel navigating the Thames shall be answerable for " all trespasses, damages, spoil, or mischief that shall be done by such vessel, or by any of the boatmen or other persons be- longing to or employed in or about the same, by any means whatsoever, to. any of the property or effects of the conser T vators," &c. ; and that the owner of every such vessel shall, for every such trespass, &c, upon conviction before a justice, pay such compensation as shall be fixed by him not exceeding £20, besides costs; but that, in case the damage shall exceed £20, the owner may be . sued. Sect. 97 provides that the boatmen or other persons so offending shall *e answerable for and shall repay all such damages, &c, to his master or owner. Held, that the owner of a vessel navi- gating the Thames is not responsible for damage done by her to property belong- ing to the conservators through the fault of a pilot compulsorily in charge of her ; for that, though the words of sect. 96 of the Thames Conservancy Act are general, they are not to be read as including pilots, and do not by implication repeal the provisions as to pilotage in the Mer- chant Shipping Act, 1854. Conservators of the River Thames v. Hall, L. E. 3 0. P. 415. 2086. As to owners of vessels or floats of timber not being responsible to the points the pilot gives reason to believe that he will give, and undertakes to give, skilful and faithful pilots, an engagement which he makes with all ships navigating his waters, not only with respect to their own pilots, but also with respect to the pilots of all the other vessels so navigating. But in the meanwhile this is a presumption against the captain, and he is bound . to prove rigorously against the person appointing the pilot that the collision was caused by default of right information on the pilot's part. Art. 4 of the Eegulations nowhere says that the pilot is to take the place of the master. Arts. 8, 9, sects. 8 and 11 (2) do not alter the position of the pilot as stated in Art. 4, because the first does not compel obedience to the pilot, and the two latter only do so when they are considered as based on his special and local knowledge. Hence it results that the master is respon- sible — 1. For all grounding and other ac- cidents resulting from the conducting and manoeuvring of his ship, which are dis- tinguished by Art. 10, sect. 2, from a ground-, ing caused by an erroneous direction given by the pilot. 2. That the responsibility for the manoeuvring, of the ship remains entirely with the master ; and that the company, as manager of the Canal, and by its regulations, is now the less unable to diminish its respon- sibility in respect to the pilots, and to fur- nish every security for the navigation, which depends not less on the proper information of the pilots than on the preservation in good condition of the Canal itself. Philippe v. C. & Canal de Suez, J. de D. I. P. 1878, p. 168. See also The Qvy Mannering, No. 1153, p. 326. OWNERS. Part VII. Compulsory Pilotage. 1401 undertakers for any damage done thereby to harbours, docks, piers, or works when caused by the fault of a pilot taken by compulsion of law, see the Harbours, Docks, and Piers Clauses Act, 1847 (c.27), s. 74, and as to actions by dock pro- prietors, tit. Collision, Pt. VIII. p. 282. 2087. As to the liabilities of owners having pilots, taken by compulsion of law, in charge of their vessels, in reference to the authority of harbour and dock masters, see tit. Collision, p. 284, Nos. 849,851,852,853. 2088. The damage done by a collision not being attributable to the master and crew of the vessel doing the damage, held, that whether the collision was the result of accident, or the fault of the pilot, the suit against the owners of such vessel must be dismissed with costs. The Castor, 6 L. T. N.8. 106. 2089. Although the pilot has charge of the ship the owners are responsible to third persons for the sufficiency of the ship and her equipments, the competency of the master and crew, and their obedi- ence to the orders of the pilot in every- thing that concerns his duty. The Chris- tiana, 7 Moore, P. C. C. 171. 2090. If a vessel in charge of a pilot is out of ordinary trim, so that she is carried by force of the tide more than a ship in ordinary safe trim would have been, and this helped to bring about the collision, the owners are responsible for the damage, the trim of the ship being within the pro- vince of the master. The Argo, Swabey, 462. 2091. But if she is in ordinary Bafe trim, then, although she might be in han- dier trim, and although the trim of the ship in part contributed to the collision, they are not responsible. Ibid. 2092. The catching of the cable on the windlass in running out, held not to be a fault on the part of the master and crew, so as to render the owners liable, the collision being in other respects attribut- able to the pilot. The Peerless, 1 L. T. N.S. 125; 1 Lushington, 30; 2 L. T. N.S. 25 ; 13 Moore, P. C. C. 484. 2093. QucBre, whether knowledge of a duly-licensed pilot taken by compulsion of law as to the state of a dock is to be considered knowledge which affects the shipowners. Thompson and others v. North Eastern Railway .Co., I Asp. 17, 207; 6L. T. N.S. 127; 2 B. & S. 106; and, in error, 119. 2094. The pilot in charge of a ship is solely responsible for getting the ship under weigh in improper circumstances, e. g. without employing her steam-tug, which was in attendance. The Peerless, supra, No. 2092. 2095. It is a want of due caution to move, by means of a steam-tug, a ship from one dock to another at night-time. The Borussia, Swabey, 94. 2096. Under such circumstances, a pilot on board the ship being towed has no such charge or control over her movements as to exculpate the owners. Ibid. 2097. A ship towed by a steam-tug, and in charge of a pilot taken on board com- pulsorily, came into collision with another ship at anchor ; the damage which ensued was in great part caused by the anchor of the tow, which was hanging over her bow, and was alleged to have been improperly catted. Held, that the owners were ex- onerated, first, because the primary cause of the collision was the improper steering or towing of the ship, which it was the duty of the pilot to attend to ; secondly, that even if the improper catting of the anchor could be considered a cause of damage, it was the duty of the pilot to attend to the hanging of the anchor. The Oipsey King, 11 Jur. 357; 5 Notes of Cases, 203 ; Silky. Brown, 9 Car. & P. 601. 2098. See also as to the relative duties of crew and pilot, ss. 3, 4, and 5, infra. 2099. A collision occurred in the day- time between the steamer W. C. at anchor below Dartmouth, at the mouth of the Dart, and -the steamer W. coming down the river. The collision was principally owing to error in judgment of the pilot. The master had shortly previously left the deck on ship's business, and the pilot was alone on the bridge. The W. was steered from the bridge, and the engine- room telegraph was on the bridge. Held, that the master was to blame for leaving the bridge without putting any officer in his place to assist the pilot ; but whether his neglect in this respect did or did not ' contribute to the casualty so as to make the owners responsible for the collision, the court considered it was not re- quired to decide. "Wreck Commissioner and Assessors, No. 1534, 18th October, 1882. 2100. A French vessel coming up the Thames took on board a pilot, and, as none of her crew understood English, a water- man to take the wheel. The waterman put her helm up instead of luffing as the pilot ordered, whereby a barge was run into and damaged. The French owner claimed exemption under the 388th section 4 x 1402 OWNERS. Part VII. Compulsory Pilotage. of the M. S. Act, 1854. Held, that the pilot was not answerable for the waterman's incapacity or fault, and that the owners were liable. General de Caen, Swabey, 9. 2101. See the same rule applied to hohlers appointed hy a pilotage autho- rity in Holman v. Irvine Harbour Trustees, 4 Court of Sess. Cases, 4th series, p. 406 (Scotch), and tit. Collision, No. 844, p. 284. ' 2102. Salvors having brought the vessel salved into pilotage waters, gave up charge of her to a duly-licensed pilot who boarded her, and by whose negligence the ship sus- tained damage. Held, that the salvors rightly gave up charge to the pilot, and ought not to suffer in their claim of sal- vage on account of the pilot's negligence. The Bomarsund, Swabey, 77. 2. Burthen of Proof . 2103. See tit. Evidence, c. 19, s. 8, p. 450. 3. Master and Crew generally.* 2104. Although the pilot has charge of the ship the owners are responsible to third persons for the competency of the master and crew. The Christiana, 7 Moore, P. C. C. 171 ; 7 Notes of Cases, 6, and Supp. xiv. 2105. Although the directions of the pilot may be imperative as to the course the vessel is to pursue, the management of the ship itself is still under the control of the master. It is his duty to secure the safe conduct of his vessel by issuing the necessary orders, and that of the crew to carry those orders into execution, and for the due performance of their relative duties the master and crew are still re- spectively responsible, and through them the owners. The Diana, 10 Jur. 135. 2106. When there is a local usage as to navigation depending on local circum- stances it is the exclusive duty of the pilot to take care that such usage is complied with. Ibid. 2107. A vessel is only under the direc- tion of the pilot for the purpose of navi- gation. In a case of collision the master is the proper party to give directions for the cutting away a lanyard, where such a course may be necessary to prevent fur- ther damage. He is not to wait for the pilot's directions, which would tend to create great confusion and delay. The Massachusetts, 10 Jur. 373. 2108. In a cause of collision, blame is not imputable to a vessel as being insuffi- ciently manned, unless it can be shown that in consequence of the deficiency of hands on board her she was not under sufficient control. The Hope, 1 W. Eob. 156. 2109. Semble, though the ship was in charge of a pilot, the master would be to blame for allowing her to proceed in port in a fog. The Girolamo, 3 Hagg. 169 ; but see The Lochlibo, 3 W. Eob. 320, No. 2195, infra. 2110. The A. and J. S. came into col- lision in the river Mersey, and the steam- tug towing the A. was compelled to cut adrift and leave her. The A. and J. S. then drifted up the river, and after some time cleared each other, when the J. 8. brought up, and the A. continued drifting until she came into collision with the G. L. While the A. was drifting she had let go her starboard anchor and the chain of the port anchor, the port anchor itself having been broken in the first collision. A.'s steam-tug had also thrown a line on board, which was not attended to. Held, that the master and crew were to blame for not having veered out more cable to the star- board anchor, for not having bent on a hawser to the line thrown from the steam- tug, and for not having squared the fore- yard and set sail upon it, and that the neglect in these respects occasioned the second collision. The owners of the A. held responsible accordingly for the da- mage to the Gr. L. The Annapolis and Golden Light, 5 L. T. N.S. Adm. 692. 2111. See also Nos. 2092—2098, supra. * (550) The pilot is an officer of the ship when on board in the exercise of his duty, but when the captain is on board he is mas- ter, and the orders of the pilot are considered the master's. The United States v. Forbes, Crabbe, 558. [American.] And see note 547, p. . (551) If the collision was caused by the negligence or fault of the pilot, and the owners had the means of knowing that he was careless and reckless, they are respon- sible for the injury. Cook v. Par ton, 24 Ala. 21. [American.] (552} For provisions of the American law rendering the master and owners liable for accidents when the ship is allowed to pro- ceed through darkness or fog, after the pilot has reported it unsafe to dp. so, see Act of Congress, Aug. 30, 1852; and 1 Conkling's U. S. Adm. Prac. 413. [American.] OWNERS. Part VII. Compulsory Pilotage. 2112. Semite, where a collision is brought about solely through- the default of a pilot, by compulsion of law, in charge of the wrong-doing vessel, a failure on the part of her master to render assist- ance will not deprive the owners of exemption from liability in respect of the compulsory employment of a pilot. The Queen, The Lord John Russell, L. E. 2 A. & E. 354. 2113. In order to entitle the owner of a ship having, by compulsion of law, a pilot on board, to the benefit of the ex- emption contained in the M. 8. Act, 1854 (c. 104), s. 388, from liability for damage by default of the pilot, it is not enough to prove that there was fault or negli- gence on the pilot's part, but the owner must show that there was no default on the part of the master and crew which might have in any degree been conducive to the damage. The Zona, L. E. 1 P. 0. 426. 2114. See also Nos. 2088—2091, p. 1401, and No. 2115, infra. 4. Obedience to Pilot's Orders. 2115. When a collision is caused by a vessel in charge of a licensed pilot, the owners, in order to exonerate themselves from liability, must prove not merely that the crew were under the pilot's orders at the time, but that the order which caused the damage was actually given by the pilot, the onus probandi being on them. The Schwalbe, 4 L. T. N.S. 160 ; and see No. 2113, supra. 2116. Although the pilot has charge of the ship the owners are responsible to third persons for the obedience of the master and crew to the orders of the pilot in everything that concerns his duty. The Christiana, 7 Moore, P. C. C. 171. 2117. Imperfect obedience is disobedi- ence. The Christina, 6 Moore, P. C. C. 380. 2118. If the orders of the pilot are dis- obeyed, or the duties which belong to the master and crew are not properly per- formed, and an accident under these cir- cumstances occurs, the owners remain liable. The Lochlibo, 7 Moore, P. C. 0. 429 ; 14 Jur. 1074 ; 3 W. Eob. 317 ; The Diana, 10 Jur. 135 ; 4 Moore, P. C. 0. 11. 2119. A hail from any of the crew on the look-out to alter the helm, if such advice be adopted by the pilot as in his judgment a proper measure, will exone- rate the owners ; otherwise if the advice be adopted by the pilot unthinkingly and 1403 The on the mere report of the look-out. Lochlibo, 7 Moore, P. O. O. 427. 2120. As a general rule it is the mas- ter's duty to repeat, if necessary, the pilot's orders, and for any manoeuvre so carried out the pilot remains solely re- sponsible. The Admiral Boxer, Swabey, 193. 2121. See also s. 3, supra, and s. 5, infra. 5. Interference with Pilot. 2122. Under ordinary circumstances the orders of the pilot are to be obeyed. If from sudden illness or intoxication he becomes incompetent to command, the supreme authority would revert to the master during the period of the pilot's incapacity. The Christiana, 7 Moore, P. O. O. 172; 7 Notes of Cases, Supp. xiv. 2123. It would be a most dangerous doctrine to hold, except under extraordi- nary circumstances, that the master could be justified in interfering with the pilot in his proper vocation. The Maria, 1 ~W. Eob. 110; The Admiral Boxer, Swabey, 196; The Argo, ibid. 464. 2124. But it is his duty to look after the pilot, and in the case of the pilot's palpable incompetency, intoxication, or loss of faculties, to interpose his autho- rity for the preservation of the property of his employers. The Duke of Manches- ter, 2 W. Eob. 480 ; 4 Notes of Cases, 582 ; 10 Jur. 865. 2125. In cases of obvious danger the master is bound to interfere in the management of the vessel, although a licensed pilot be in charge of her. The Girolamo, 3 Hagg. 169, 176. 2126. Held, that it would be the duty of the master of a steamer navigating the Thames with a licensed pilot on board when a thick fog came on to insist on an- choring, and to overrule the pilot on this head if necessary. Ibid. ; and see the observations of Dr. Lushington on this decision in The North American and The Wild Rose; 2, Asp. 320. 2127. There maybe cases in which the master of a ship is justified in interfering with the pilot in charge, but they are very rare. If the pilot is intoxicated, or is steering a course to the certain destruc- tion of the vessel, the master ought to interfere, but only in urgent cases. The Peerless, 1 L. T. N.S. 125 ; 1 Lushington, 30 ; 2 L. T. N.S. 25 ; 13 Moore, P. C. C. 484. 2128. Considering the duties imposed on pilots, their experience and local know- 4x2 1404 OWNERS. Part VII. Compulsory Pilotage. ledge, it would be most dangerous to sanction the interference of the master in any way in the performance of those duties. The Lochlibo, 3 W. Eob. 321 ; 14 Jur. 1074 ; 7 Moo. P. 0. C. 427. 2129. If the pilot was utterly incompe- tent to the proper discharge of his duties, it would clearly he incumbent upon the master to interfere for the protection of the lives and property on board his ves- sel. Ibid. 3 W. Eob. 321. 2130. Interference with the pilot, as distinguished from suggestion, is the doing of that which the pilot alone ought to have done. Ibid. 2131. It would be very dangerous to hold that there can be any divided autho- rity in the ship between the master and the pilot with reference to the same sub- ject. Ibid. 7 Moo. P. 0. 0. 430. 2132. To consult the pilot or suggest the propriety of his adopting or not adopting any particular measure, would not amount to illegal interference with him. Ibid. 3 W. Eob. 321. 2133. There may be circumstances in which the measures to be adopted are so obvious, that though the pilot ought to have ordered them and did not do so, his neglect will be no excuse for the .master and crew omitting to adopt them. The Diana, 4 Moo. P. 0. 0. 11 ; The Christiana, 7 Moo. P. 0. C. 160 ; The Lochlibo, Ibid. 430. 2134. Owners held (reversing the deci- sion of the court below) not responsible for the collision, on the ground that the collision was caused by the starboarding of the helm, which act was ordered by the pilot, and not, as suggested, by the master. The Lochlibo, 7 Moo. P. C. 0. 430. 2135. The doctrine laid down in The Christiana (2122, supra) and The Lochlibo (2128, supra) concerning the relative duties of pilot and crew recognized and approved. The City of Cambridge, L. E. 5 P. C. 451 ; 43 L. J. Adm. P. C. 11 ; 2 Asp. N.S. P. C. 239. _ 2136. A vessel is only under the direc- tion of the pilot for the purpose of navi- gation. In a case of collision the master is the proper party to give directions for the cutting away a lanyard, where such a course may be necessary to prevent further damage. He is not to wait for the pilot's directions, which would tend to create great confusion and delay. The Massachusetts, 10 Jur. 373. 2137.- In criminal proceedings against a master of a vessel who has a compul- sory pilot on board, such master is not bound to prove that at the time of the act or omission, the subject of such pro- ceedings, he was not interfering with the navigation of his vessel, and he cannot be convicted unless it is shown against him that he was so interfering. Oakley v. Speedy, 4 Asp. 134. 2138. The E. in charge of a tug was dropping stern foremost up the Humber with the tide, and was eventually brought athwart the tide to go into dock. The E. was exhibiting, in addition to the masthead and side lights, a white light from the main peak showing astern, and placed there by order of the pilot, who was by compulsion of law in charge of the E. The rules for the navigation of the river Humber made by Order in Council in pursuance of the M. 8. Act Amendment Act, 1862 (c. 63), s. 32, in- corporate the regulations for preventing collisions at sea. The E. coming down the Humber came into collision with the E. At the hearing of an action between them it was admitted that the E. was to blame. Held, that the E. was also to blame, for that, as the Humber rules were within the purview of the M. S. Act, 1873 (c. 85), s. 17 (as to which see tit. Collision, Pt. IV. c. 2, s. 3, p. 215), there had been, by the exhibition of a stern light, a breach of a statutory regu- lation, viz., of Art. 2, which it was im- possible to say might not have contributed to the collision, and there were no circum- stances to make a departure from the regu- lation necessary. Held, also, that the fact of the light having been exhibited by order of the pilot, did not exempt the owner of the E. from liability, as the master should not have permitted an infringement 'of the regulations. The Ripon, 10 P. D. 65. See also ss. 3 and 4, supra. 6. Look-out. 2139. A hail from any of the crew on the look-out to alter the helm, if such advice be adopted by the pilot as in his judgment a proper measure, will exone- rate the owners ; otherwise if the advice be adopted by the pilot unthinkingly, and on the mere report of the look-out. The Lochlibo, 14 Jur. 1074 ; 3 W. Eob. 819; 7 Moo. P. C. C. 427. 2140. The owners, not the pilot, are responsible for the insufficiency of the. look-out. The Batavier, 1 Spinks' Ecd. and Adm. Eep. 378; 10 Jur. 19; Nether- lands Steamboat Co. v. Styles, 9 Moore, OWNERS. Part VII. Compulsory Pilotage. 1405 P. C. 0. 286; Stuart v. Isemonger {The Diana), 4 ibid. 11; 1 W. Eob. 136; 6 Jur. 157 ; The Lochlibo, 2 W. Eob. 319 ; 14 Jur. 1074 ; 7 Moore, P. C. 0. 430. The lona, L. E. 1 P. 0. 426 ; 4 Moore, P. C. N.S. 336 ; 2 Asp. 479 ; The Velasquez, L. E. 1 P. C. 494; 36 L. J. Adm. 19; 4 Moore, P. 0. N.S. 426 ; 2 Asp. 544. 2141. A steam-vessel was sighted by a barque three miles off. The two vessels continued their course until near toge- ther, when the steamer starboarded her helm. The barque, to avoid a collision, ported her helm, but a collision ensued. The barque was not seen by those on board the steamer until the vessels were about three-quarters of a mile apart. Held, that the steamer was alone to blame, and that her owners had not sub- stantiated their defence of compulsory pilotage, as had the barque been reported to the pilot earlier, it might reasonably be inferred that he would have avoided, the collision. The Velasquez, L. E. 1 P. C. 494 ; 36 L. J. Adm. 19 ; 2 Asp. 544 ; 4 Moore, P. C. C. N.S. 426. 2142. Owners held liable for collision with a barge, as sufficient notice of the approach of the barge had not been given to the pilot. The Minna, L. E. 2 A. & E. 97. See also The Queen, The Lord John Russell, L. E. 2 A. & E. 354 ; 38 L. J. Adm. 39 ; 3 Asp. 242. 2143. A steamer in charge of a pilot by compulsion of law, came into collision with a sailing barge off Blackwall Point. The pilot did not see the barge, nor was it reported to him until it was too late to avoid the collision, but both the pilot and a man on the look-out forward might have seen the barge much earlier. Held, that there was neglect of duty on the part of the look-out man; that this neglect of duty conduced to the collision, and that it was such default on the part of the crew of the steamer as to disentitle the owners to set up the defence of com- pulsory pilotage. The Iona, L. E. 1 P. 0. 426; 4 ibid. N.S. 336; 2 Asp. 479; 4 Moore, P. 0. C. N.S. 336. 2144. As to the duties generally in re- gard to the look-out, see tit. Collision, Pt. IV. c. 5, p. 219. See also No. 2145, infra. 7. Speed. (a) Generally. _ 2145. A steamer in charge of a duly- licensed pilot, proceeding up the river caused such a swell that a barge laden with coals was thereby sunk. Held, that the owners of the steamer were to blame for a bad look-out, and that the pilot was to blame for not stopping the speed of the steamer. The Batavier, 1 Spinks' Eccl. and Adm. Eep. 378 ; 10 Jur. 1 9 ; 9 Moore, P. 0. C. 286. 2146. A barge was moored in the Thames in a place where she was parti- cularly exposed to the action of the wind and tide. A steamer passing by her in charge of a pilot and navigated at a proper rate of speed, caused a swell, and the barge sank. Held, that the sinking of the barge was occasioned partly from the exposed locality in which she was moored, and partly from the swell of the steamer. Action by the barge against the steamer dismissed with costs. The Duke of Cornwall, April 16, 1862. 2147. The L. sailed, through the Downs at a time and with a speed which made it hardly possible that she should pass without danger to other vessels. Held (affirming the judgment of the court be- low), that such sailing was improper ; but that her so sailing was exclusively the fault of the pilot. The Lochlibo, 7 Moore, P. C. 0. 429. 2148. It is the duty of a pilot, in giving directions for the navigation of a vessel to determine the rate of speed at which she should proceed. The Calabar, L. E. 2 P. C. 238 ; 3 Asp. 195 ; 5 Moore, P. 0. 0. N.S. 291. 2149. See also No. 2161, infra. 2150. As to the duties generally in re- gard to speed, see tit. Collision, Pt. IV. c. 7, p. 222. (b) Stopping and reversing of Engines. 2151. A brig moored in the Thames was in midday run into by a steamer having a duly-licensed pilot on board, who ordered the engines to be stopped and reversed. Held, that the engines were not reversed so promptly as they might have been, and as the evidence of the engineers was not produced that the pilot was not solely and exclusively to blame, the owners therefore were not exonerated. The Ripon, 6 Notes of Case 3, 245. 2152. As to the duty generally of stopping and reversing engines on risk of collision, see tit. Collision, Pt. IV. c. 7, ss. 4 and 5, p. 230. 8. Steering. 2153. When there is a local usage as to navigation depending on local cir- cumstances it is the exclusive duty of the 1406 OWNERS. Part VII. Compulsory Pilotage. pilot to take care that that usage is com- plied with ; hut where the mode of sailing is such as every master, according to the ordinary course of navigation, ought to adopt in every open roadstead where many vessels are lying and in Mowing weather, it is as much the master's as the pilot's duty to see that the proper course is taken. If, however, the pilot gives express orders to the contrary, the owners might be excused from responsibility for the consequences of the pilot's orders. The Christiana, 7 Moore, P. C. 0. 173; 7 Notes of Oases, Supp. xiv. 2154. The pilot has the sole direction of a vessel in those respects where his local knowledge is presumably required; the direction, the course, and the manoeuvres of the vessel when sailing, belong to him. Ibid. 172. 2155. A collision having been occa- sioned by the improper sailing and steer- ing of a vessel, the exclusive act of the pilot, the owners of tbe vessel were held (reversing the judgment of the court below) entitled to exemption. The Loch- libo, 3 W. Bob. 318; 14 Jur. 1074; 7 Moore, P. 0. 0. 435. 2156. It is the duty of the pilot to de- cide whether and when to shorten sail. Ibid. 2157.' Primd facie it would be pre- sumed that the pilot gives all the direc- tions for altering the helm, and that if erroneous he alone is responsible for them. Ibid. 2158. The steering and amount of sail to be carried are matters to be regulated by the pilot. The Julia, 14 Moore, P. C. 0. 233. 2159. A steamer in charge of a pilot was navigated on her wrong side of the channel. Held, that the pilot was solely responsible for her navigation in that respect. The Argo, Swabey, 464. 2160. A steamer in charge of a pilot proceeding down the Thames on her port side of the river, came into collision with a barge. In an action for damage against the pilot, held, that it was his duty to have kept the steamer on the starboard side, but within the fair-way, and when he saw risk of collision to have ported her helm, and therefore it was properly left to the jury to say whether, at the time of the collision, the steamer was so on the starboard side, and, whatever her position, whether the collision was caused by the negligence of the pilot or not. Smith v. Voss, 29 L. T. 97 ; 2 H. & N. 97 ; 26 L. J. Exch. 233. 2161. The defendants in a cause of collision pleaded compulsory pilotage, and proved that the pilot had ordered the helm to be put to port, and that this order had been obeyed. Held, that the court could not assume that the vessel did not obey the helm from the fact of her being covered with barnacles, but that it was for the plaintiffs to prove by substantive evidence that she did not obey the helm. The Livia, 1 Asp. N.8. 204. 2162. As to the duties generally as to steering, see tit. Collision, Pt. "VII. c. 1, p. 254. 9. Actions between Tugs and Tows.* 2163. A ship in charge of a pilot, and also in tow, is to be considered, under * (553) By analogy to the common law re- lation in which a pilot stands to the owners, and to the master and crew of the ship in his charge, it would seem that the master and crew of the tug are agents of the owners of the ship, and that for damage done to a stranger solely through the fault or incapacity of the crew of the tug, both parties are answerable, and that if the master and crew of the ship have, through fault or incapacity on their part, contributed to the .damage, there is no right of action between the ship and the tug to recover over. It would seem also that the same analogy to, the case of a pilot would place the master and crew of the ship under the orders of the tug in all things proper to the due and safe fulfilment of the contract, subject only to analogous exceptions as to the right of the master of the ship, under extraordinary circumstances, to interfere and refuse to execute the orders from the tug, and this opinion appears to be justified by the presumed local knowledge and experi- ence of those who have been by the contract entrusted with the command of the moving power, and the selection of the course. Mac- lachlan on Merchant Shipping (3rd ed.), p. 287. (554) When a pilot is taken on hoard a ship which is being towed by a steam-tug, the pilot's control of the conduct of the ship extends also to that of the tug which has her in tow ; and without exempting the master and crew of either vessel from the duty of exercising diligence, care, and s kill in the working of their own vessel, such exercise must he in strict subordination to the orders of the pilot, subject to exceptions under ex- traordinary circumstances. Ibid. p. 288. (555) The absolute rights and liabilities of eaoh of the three parties are not changed, the legal relation of either pair of them is not OWNERS. Part VII. Compulsory Pilotage. 1407 ordinary circumstances, as still in the charge of the pilot. If the course pur- sued by the tug is in conformity with the directions of the pilot, or not against his directions, and a collision takes place, the pilot is responsible, and not the owners nor the tug, which ought to obey the pilot. If, however, the tug disregards the directions of the pilot, then the owners of the tow would be responsible, as for the acts of their servant, and the owners of the tug might be responsible over to them in another form of action. The Gipsey King, 5 Notes of Oases, 288. 2164. The general rule is that a steam- tug engaged in towing or performing salvage services is bound to obey the directions of the pilot on board the vessel salved. The Minnehaha, 1 Lushington, 353; 15 Moore, P. C. 0. 162. 2165. Steam-tugs employed in an ordi- nary towage service, are bound to be sub- servient to the orders of the pilot on board the vessel in tow. The Christina, 3 W. Bob. 27 ; 6 Moore, P. 0. 0. 371 ; 6 Notes of Cases, 4. 2166. The master of the tug must im- plicitly obey the orders of the pilot, except in the case of wilful misconduct or gross mismanagement on his part. Ibid. 2167. Imperfect obedience is disobedi- ence. Ibid., 6 Moore, P. C. 0. 380. 2168. Held, that although the pilot might not have exercised a sound discre- tion in the orders he gave, there was no sufficient justification for the master of the steam-tug refusing to carry those orders into effect. Ibid. 2169. Queere, whether prior to the Judi- cature Acts, notwithstanding such mis- conduct, the tug could recover towage from the owners of. the vessel under the contract, and leave the vessel towed to a cross action for the damage. Ibid. 2170. A ship with a duly-licensed pilot on board was in tow of a tug. The tug having become detached, the master of the tow against the advice of and un- known to his pilot ordered the tug to be re-attached, and in consequence a colli- sion occurred between tug and tow. Held, that the tow was responsible for the damage. The Julia, 14 Moore, P. C. 0. 210; 1 Lushington, 233. 2171. A pilot on board of a ship being moved by means of a steam-tug from one dock to another at night-time, has no such charge or control over her movements as to exculpate the owners. The Boi-ussia, Swabey, 94 ; 27 L. T. 72. 2172. The A. and J. S. came into colli- sion in the river Mersey, for which the pilot of the A. was solely to blame. The steam-tug towing the A. was compelled to cut adrift and leave her. The A. and J. 8. then drifted up the river, and after some time cleared each other, when the J. 8. brought up, and the A. continued drifting until she came into collision with the Gh L. While the A. was drifting she had let go her starboard anchor and the chain of the port anchor, the port anchor itself having been broken in the first collision. A.'s steam-tug had also thrown a line on board, which was not attended to. Held, that the master and crew were to blame for not having veered out more cable to the starboard anchor, for not having bent on a hawser to the line thrown from the steam-tug, and for not having squared the foreyard, and set sail upon it, and that the neglect in these respects occasioned the collision. The owners of the A. accordingly held respon- sible for the damage to the G. L. The Annapolis and Golden Light, 5 L. T. N.S. 692. 2173. A tug is not relieved from the altered by their co-relation when it becomes triple. The tug is the agent of the ship in tow, and liable over to her owners for any damage due to fault in it alone. The pilot is at common law the agent of the same owners, when appointed by them, and liable oyer in like manner for the consequences of his own fault, inclusive of immediate damage by the tug when that is the result of his orders. Ibid. p. 289. (556) In respect of tug and of pilot at common law the owners of the ship in tow are primarily liable to third persons suffering damage by the acts of either. Ibid. (557) Any disobedience of tug or ship in tow disentitles the owners of the latter to the statutory protection. Ibid, p, 290. (558) If the damage done by a ship in tow while a qualified pilot is compulsorily on board is, at least partly, due to the fault of those in the tug, the owners of the ship in tow are in the first instance liable, with a right to recover over in case their own mas- ter and crew are clear of blame. Ibid. (559) A steamboat was hired for the pur- pose of towing a vessel, to which she was fastened, and both were under the direction of a licensed pilot. The owner of the steam- boat held not entitled to damages on account of injury sustained in the course of the navi- gation, and not caused by undue negligence of the pilot. Beeves v. The Constitution, Oil- pin, 579. [American.] 1408 OWNERS. Part VII. Compulsory Pilotage. responsibility of watching the course or- dered by the pilot on board the tow. The Duke of Manchester, 2 W. Eob. 470 ; 4 Notes of Oases, 582. 2174. If the master of the tug sees that the course pursued by the pilot will lead the tow into danger, it is his duty to make the circumstance known to the master of the tow. Ibid. 2175. A sailing vessel, under charge of a pilot, grounded upon the Goodwin Sands. On» being got off she was taken in tow by a steamer, and whilst so in tow and in charge, no warning being given by the steamer, got upon the Sandwich Flats, which the steamer might have pre- vented by ordinary care and skill. Held, that the steamer was guilty of gross negligence and disregard of duty, and her claim for salvage pronounced against with costs. Ibid. • 2176. "Where the master of a coasting vessel hired a steam-tug bond fide for the purpose of towing his vessel up the river, held, that although the employing such power necessarily devolved the selection of the course and management of the ship, yet the object being solely the em- ployment of the moving power, the party so employed was not within the meaning of the 6 Geo. 4, c. 125, s. 70, as a pilot, and that he could not be deemed to have the charge or conduct of the vessel. Beilby v. Scott, 7 M. & W. 93. 2178. Where a vessel is under the charge of a licensed pilot, compulsorily taken and in tow of a steam tug, the tug is bound to obey the orders of the pilot of the tow. Spaight v. Tedcastle, 6 App. Cas. 217; 44 L. T. 589; 29 W. E. 761; 4 Asp. 406. ' 2179. The E., while under compulsory pilotage, employed the T. to tow her. The pilot, though he did not direct it, allowed the T. to tow the E. dangerously near a bank. . The tug then ported, and would have cleared the bank, but, mis- understanding the pilot's signals, impro- perly starboarded, and ran the E. on to the bank. The starboarding was the immediate cause of the accident ; but in an action against the tug, it was alleged that the pilot had been guilty of contri- butory negligence in not casting off the tow rope when the danger was imminent. Held, by the House of Lords, that the negligence of the pilot in allowing the vessel to get near the bank was, under the circumstances, immaterial. Ibid. 2180. Held, further, that the pilot's not adopting at the last the doubtful manoeuvre of casting off the tow rope did not amount to contributory negligence, and that the tug was alone in fault. Ibid. 2181. Queer e, would contributory negli- gence on the part of the pilot, who was taken by compulsion of law, have affected the owners of the E. ? Ibid. 2182. Great injustice might be done if in applying the doctrine of contributory negligence to a case of this kind, the maxim causa proximo, non remota speetatur were lost sight of. Ibid. 2183. To constitute contributory negli- gence, it must be shown that the injured party, or those with whom he is identified, might, by proper care exerted subse- quently to the negligence of the party committing the injury, have avoided the consequence of such party's negligence — per Lord Blackburn. Ibid. 2183a. The Julia (14 Moore, P. 0. C. 210) commented on and approved. Ibid. 2184. Queer e, whether in an action be- tween tug and tow, owners of the tow are answerable for the contributory negli- gence of their pilot employed by compul- sion of law. Ibid. 2185. WThere a collision is caused by a tug executing a wrong manoeuvre, the fact that the person in charge of the ship was a pilot employed by compulsion of law, and gave no orders, does not relieve the owners of. the ship in tow from lia- bility. The Sinquasi, 4 Asp. 383. 2186. A steam- tug employed in towing a barque attempted to cross the bows of the M., and a collision ensued between the M. and the barque. The owners of the M. having recovered damages against the barque, the owners of the barque in- stituted a suit to recover from the tug the amount of the damage done both to the M. and to the barque. Held, that the steam-tug was to blame, but that the pilot in charge of the barque by compul- sion of law was also to blame, as he might have avoided the collision had he ordered the tug to cast off the tow rope. Action dismissed without costs. The Energy, L. E.3A.& E. 48 ; 39 L. J. Adm. 25 ; 3 Asp. 503. 2187. The pilot in charge of a ship in tow is not bound to direct every move- ment of the towing vessel, but may allow the tug a discretion as to the way in which to tow past other vessels, without by such conduct delegating his authority to the master of the tug. The Sinquasi, 4 Asp. 383. See also next section. OWNERS. Part VII. Compulsory Pilotage. 1409 2187a. As to the duties generally be- tween steamers and ships in tow, see tit. Collision, Pt. IV. c. 8, p. 231. 10. Actions between Tug or Tow and Third Ship.* 2188. A steam-tug employed in towing a vessel, held not responsible for damage occasioned by the vessel in tow coming in contact with another vessel, the vessel in tow having had a licensed pilot on board at the time, under whose orders the steam-tug acted, and there having been no default on the part of the steam- tug. The Duke of Sussex, 1 W. Eob. 270. 2189. "Where a tug, whilst towing a vessel, which is under compulsory pilot- age, comes into collision with another vessel, the tug is not entitled to set up the defence of compulsory pilotage. {Ibid. distinguished.) TheMary, 5 P. D. 14; 48 L. J. P. D. 66; 4 Asp. 183. 2190. Because, semble, there is no obli- gation upon the tug to obey the orders of the pilot. Ibid. 2191. A vessel in charge of a duly- licensed pilot, the last of three in tow of a steamer, came in collision with a vessel at anchor. The collision was owing to the swinging of the string of vessels out of the straight line, which was owing to the improper steering of the last vessel, and was the fault of the pilot alone. Held, that the owners were exonerated. The Gipsy King, 5 Notes of Cases, 282 ; 11 Jur. 357. 2192. The S. was being towed while under compulsory pilotage in the Thames. The pilot gave such orders as he consi- dered necessary, but left the tug to alter her course to clear craft, so long as she seemed to be going right. The tug im- properly, and without any order from the pilot, ported, and the S. thereby came into collision with a pier. Held, that the pilot was not bound to direct every move- ment of the helm of the tug, and that the S. was liable. The Sinquasi, 5 P. D. 241 ; 50 L. J. P. D. 5 ; 4 Asp. 383. 2193. A steam-tug employed in towing a barque attempted to cross the bows of the M., and a collision ensued between the M. and the barque. The owners of the M. having recovered damages against the barque, the owners of the barque in- stituted a suit to recover from the tug the amount of the damage done, both to the M. and to the barque. Held, that the steam-tug was to blame, but that the pilot in charge of the barque by compul- sion of law might have avoided the colli- sion had he ordered the tug to cast off the tow-rope, and that, therefore, the suit must be dismissed, but without costs. The Energy, L. E. 3 A. & E. 48 ; 39 L. J. Adm. 25 ; 3 Asp. 503. 2194. In a cause of damage by collision occasioned by a vessel while being towed, and while in charge of a pilot by compul- sion of law, no blame attaching to the crew, held, that the owners were pro- tected from liability. The Ocean Wave, L. E. 3 P. C. 205 ; 3 Asp. 482 ; 6 Moore, P. C. N.8. 492. 11. Ship anchoring and weighing Anchor. (a) Generally, f 2195. It is the duty of the pilot, and not that of the master, to determine where, and whether or not, the ship shall be brought up. The Lochlibo, 3 W. Eob. 310 ; 14 Jur. 1074 ; 7 Moore, P. C. C. 430; but see The Girolamo, 3 Hagg. 169, No. 2109, supra. 2196. When a vessel is in charge of a pilot the master is not bound to interfere with him in the exercise of his discretion whether he should bring the vessel up, or run her through a crowded roadstead at night in a tempestuous season of the year. Ibid. 2197. The time and manner of dropping the anchor are exclusively within the pro- vince of the pilot. Ibid. 2198. In the case of a vessel taking up her berth in dock, the time and manner of dropping the anchor is exclusively within the province of the pilot. The Agricola, 2 "W. Eob. 10. * (560) See notes 553—558, pp. 1406—1407. (561) Where a steam-tug with a ship in tow, both vessels being in charge of a pilot appointed by the owners of the ship, negligently caused the ship to collide with another vessel, it was held that the tug was liable. The Resale, 2 Sprague, 16. [Ameri- can.] t (562) The authority of a licensed pilot in securing a vessel in her berth is not para- mount to that of her master; the latter is deemed in full command, and the acts of the pilot are regarded as done with the direction or approval of the master. The Lotty, Olcott, Adm. 329. [American.] 1410 OWNERS. Part VII. Compulsory Pilotage. 2199. It is the sole duty of the pilot to select the proper anchorage place, and mode of anchoring and preparing to an- chor. The Christiana, 7 Moore, P. 0. 0. ' 161, 172; 7 Notes of Cases, 6; Ibid. Supp. xli. 2200. When a vessel comes to anchor the duty of the pilot is at an end, but if he continues on board she is still under his charge. Ibid. 2201. A ship, having a licensed pilot on board, ■whilst at anchor in the Downs in bad 'weather, was run into by another vessel and made to start from her anchor- age, and was driven into a vessel at anchor. Held (affirming the judgment of the court below), that her owners were responsible for the damage, because, 1 st, the ship, notwithstanding the bad weather, and a large number of vessels lying wind- bound in the Downs, had neglected to send down her topgallant and main royal yards, -and her short fore and mizen top- gallant masts ; and because, 2ndly, she did not set her staysail and jib, so as to drag her anchor off shore. Held, further, that though the latter was the fault of the pilot alone, the former was the joint fault of the pilot and master, that step being one which every master, according to the ordinary course of navigation, ought to have taken in blowing weather in every open roadstead where many ves- sels were lying. Ibid. 2202. Had the pilot given express orders to the contrary, semble, the owners might have been exempted from responsibility. Ibid. 2203. The pilot in charge of a ship is solely responsible for getting the ship under weigh in improper circumstances, e.g. without employing her steam-tug, which was in attendance. The Peerless, 1 L. T. N.S. 125 ; 1 Lushington, 30 ; 2 L. T. N.S. 25 ; 13 Moore, P. C. C. 484. 2204. The catching of the cable on the windlass in running out held not to be a fault on the part of the master and crew, so as to render the owners liable, the collision being, in other respects, attri- butable to the pilot. Ibid. 2205. It is the pilot's duty to see that the anchor is properly catted, and to take ' care that everything is properly done to bring the vessel to anchor in the port to which he is conducting her. The Gipsey King, 2 W. Eob. 538 ; 5 Notes of Oases, 292; 11 Jur. 357. 2206. The manner in which a ship should be brought into a roadstead is entirely wjthjn |he province of the pilot in charge, by whose judgment the master of the ship must be guided. Collision in consequence of the pilot's error in this respect. Held, that the owners were not responsible. The George, 9 Jur. 670 ; 4 Notes of Cases, 161. 2207. The pilot held solely responsible for a foul berth. The Northampton, 1 Spinks' Eccl. & Adm. Eep. 152, 160. 2208. A vessel dragging her anchor and coming into collision with another, held to blame for not letting go another anchor. Held, also, that this "was the fault of the pilot alone, and that the owners were therefore not liable. Ibid. 2209. The C. held liable for a collision caused by the neglect of her crew in not having the anchor clear and ready to let go, in consequence of which, when the pilot ordered it to be dropped, it got foul of the head-rails. The Centurion, Oct. 27, 1854. 2210. If the collision is partly the fault of the pilot (in not coming to an anchor in sufficient time), and partly the fault of the owners (the weight of the anchors being defective), the owners will be held respon- sible. The Massachusetts, 1 W. Eob. 371. 2211. A vessel, whilst under the com- mand of a duly-licensed pilot, and doing everything which was right and incum- bent upon her to do, came into collision with another vessel, solely from her anchors not holding, the weight of the anchors being defective. Held, that the owners were responsible for the damage. Ibid. 2212. A foreign ship was moored in Falmouth harbour, and a British ship, having a licensed pilot on board, in anchoring near ran foul of her and caused damage. Held, that some blame being imputable to the pilot, and there not being sufficient evidence to fix any blame on the crew of the British ship, her owners were exonerated and the suit dismissed accordingly, but without costs. The Atlas, 5 Notes of Cases, 52. 2213. A collision occurred owing to a vessel dragging her anchor. Held, that it was the duty of the pilot in charge to have seen that the vessel was dragging and to have ordered a second anchor to be dropped. The Princeton, 3 P. D. 90; 47 L. J. P. D. & A. 33; 3 Asp. N.S. 562. 2214. As to the duties generally in re- gard to vessels anchoring and weighing anchor, and as to vessels anchored or moored, see tit. Collision, Pt. YHI. cc. 4, 5, 6, pp. 287—291. OWNERS. Part VII. Compulsory Pilotage. 1411 2215. As to the duties generally in regard to vessels mooring or docking, Ibid. p. 288. (b) In the Mersey. 2216. Every pilot and apprentice shall execute and obey all orders given by the Board or the superintendent of pilotage, the master or the acting shoremaster, for the time being on shore, of the boat to which he is attached, and shall also obey all orders given by the water bailiff, harbour masters or dock and pierhead masters, relative to the docking, towing, transporting, or removing of vessels under their charge. Bye-law No. 1, of the Mer- sey Docks and Harbour Board; P. E. No. 325 of 1882, p. 61. 2217. He (the pilot) shall duly keep the lead going when in charge of any ship or vessel while under weigh. Ibid. Bye-law 9. 221 8. A pilot in charge of a vessel shall not leave her until she is safely anchored in the river, and then only with the written permission of the officer in com- mand, or on being relieved by a qualified pilot by order of the acting shoremaster of such boat for the time being on shore. Ibid. Bye-law 10. 2219. So far as the same can be done consistently with the safe and proper an- chorage of vessels, pilots shall avoid anchoring vessels in the fairway between the Liverpool and Woodside Stages within the following limits, viz. : Northern limit — an imaginary line drawn from No. 4 Bridge of Princes Landing Stage to the entrance of Morpeth Dock ; Southern limit — an imaginary line drawn from Manchester Basin to the first graving dock S. of the "Woodside Landing Stage. Ibid. Bye-law 11. 2220. If a pilot does anchor a vessel within such limits he shall send to the superintendent of pilotage a written re- port of his reasons for so doing. Ibid. 222 1 . When leaving the dock in charge of a vessel, the pilot shall see that the cables are bent and that the anchors are got over the bows and ready for letting go immediately after clearing the pier- head. Ibid. p. 62, Bye-law 25. 2222. A screw steamship, in charge of a pilot, having been brought up by her port anchor in the Mersey with an im- properly short length of cable, parted the cable about 12 o'clock at night. Although her fires were banked and her steam was up at the time she was allowed to drift down the river for a mile and a half, when she came into collision with a vessel at anchor. Held, that the pilot in charge of the steamship was solely to blame for the collision. The City of Cambridge, L. E. 5 P. C. 451 ; L. E. 4 A. & E. 161 ; 43 L. J. Adm. 11 ; ibid. P. C. 72 ; 2 Asp. N.S. 193; ibid. 239. 12. Sufficiency of Ship and Equipment. (a) Generally. 2223. Although the pilot has charge of the ship the owners are responsible to third persons for the sufficiency of the ship and her equipments. The Chris- tiana, 7 Moore, P. 0. C. 171 ; 7 Notes of Cases, 6 ; and ibid. Supp. xli. 2224. In a cause of collision blame is not imputable to a vessel as being insuffi- ciently manned, unless it can be shown that in consequence of the deficiency of hands on board her she was not under sufficient control. The Hope, 1 W. Eob. 156. 2225. All vessels are more or less un- wieldy, and it is the duty of a pilot on board an unwieldy vessel, so to handle her as to prevent collision as far as prac- ticable. The Presto, Nov. 17, 1853. 2226. The catching of the cable on the windlass in running out held not to be a fault on the part of the master and crew, so as to render the owners liable, the collision being, in other respects, attri- butable to the pilot. The Peerless, 1 L. T. N.S. 125; 1 Lushington, 30; 2 L. T. N.S. 25 ; 13 Moore, P. C. C. 484. 2227. A vessel, whilst under the com- mand of a duly-licensed pilot, and doing everything which was right and incum- bent upon her to do, came into collision with another vessel, solely from her anchor not holding, the weight of the anchor being defective. Held, that the owners were responsible. The Massa- chusetts, 1 "W. Eob. 371. 2228. Held to be a want of caution to move by means of a steam-tug a ship from one dock to another at night-time. Under such circumstances a pilot on board a ship being towed has no such charge or control over her movements as to exculpate the owners. The Borussia, Swabey, 94. 2229. It is the duty of a pilot going down a river to make allowance for the effect of the tide, and if he does so, and a collision occurs from an inherent defect in the ship, occasioning her not answer- ing her helm with the same facility as an ordinary ship, no blame will attach to the pilot, and the owners will be liable 1412 OWNERS. Part VIII. Part Owners. for the damage. Held, that the owners were responsible by reason of such a de- fect. The Peru, July 16, 1857. 2230. The position in which the anchor is placed is a matter under the control of the pilot. The Rigborgs Minde, 8 P. D. C. A. 132; 52 L. J. P. D. 74; 5 Asp. 123. 2231. A master, if he knows of any- thing whatever in the state of his vessel or her crew which would, or might, injuriously affect her behaviour at a moment of emergency, must disclose it to the pilot, or he will be prevented from establishing the defence of compulsory pilotage. Per Christian, L. J., in the Court of Appeal in Chancery. The Me- teor, I. E. 9 Eq. 567. [Irish.] 2232. The master informed the. pilot that his vessel was drawing twelve feet of water aft and nine forward, whereas, in fact, it was drawing fourteen feet of water aft and nine forward. Held, by the Court of Appeal in Chancery, that there was contributory negligence on the part of the master, and that the owners had failed to prove their defence of com- pulsory pilotage. Ibid. (b) Trim. 2233. If a vessel in charge of a pilot is out of ordinary trim, so that she is carried by force of the tide more than a ship in ordinary safe trim would have been, and this helped to bring about the collision, the owners are responsible for the damage, the trim of the ship being within the province of the master. The Argo, Swa- bey, 462. " ' , 2234. But if she is in ordinary safe trim, then, although she might be in handier trim, and although the trim of the ship in part contributed to the col- lision, they are not responsible. Ibid. Part VIII -PART OWNERS. 1. Generally. 2235. As to the division of the property in a ship into sixty-four shares, and the provision that not more than sixty-four individuals shall be entitled to be regis- tered as owners of any one ship; as to no person being entitled to be registered as owner of a fractional part of a share in a ship ; as to the registration of joint owners of a ship or share ; and as to a body corporate being registered as owner by its corporate name, see Pt. I. p. 1185, No. 47. 2236. As to shares in ships being deemed stock under the Trustee Act, 1850, Ibid. No. 50. 2237. As to no notice of any trust being entered in the register-book, or receivable by the registrar, and as to each regis- tered owner's power of disposal of his share, Ibid. No. 51. 2238. As to who may be owners, and of what vessels, and as to evidence of ownership, Ibid. Nos. 165 — 178, p. 1198. 2239. As to beneficial interests in ships, Ibid. No. 47, p. 1185; and Nos. 261—265, pp. 1207, 1208 * 2240. As to persons beneficially inte- rested in any ships or shares, but not registered as owners, see No. 594, p. 1245. 2241. As to the forfeiture of interests of unqualified persons, Ibid. Nos. 586, 587, p. 1244. 2242. All sums of money paid for or on account of any loss or damage in re- spect whereof the liability of the owners of any ship is limited by the ninth part of this act, and all costs incurred in rela- tion thereto, may be brought into account among part owners of the same ship in the same manner as money disbursed for the use thereof. See M. S. Act, 1854 (c. 104), s. 515. 2243. A part owner of a ship is not necessarily a partner. Helme v. Smith, 7 Bing. 709 ; 5 M. & P. 744. See Ex parte Harrison, 2 Eose, 76 ; Ex parte Young, 2 V. & B. 242 ; Green v. Briggs, 6 Hare, 402, overruling the dictum of Lord Hardwicke in Doddington v. Hallett, 1 Vesey, sen. 496. 2244. The owners of a ship are not interested in it as joint-tenants, but as tenants in common. Ex parte Harrison, 2 Eose, 76 ; Ex parte Young, 2 Ves. & B. 242. 2245. Part owners are tenants in com- mon of a ship, but jointly interested in her use and employment ; and the law as to the earnings of a ship, whether as * (563) See the observations on section 3 of the M. S. Act Amendment Act, 1862, c. 63, in Maclachlan's Supplement, p. 3 (anno 1 862), to his treatise on the law of shipping. For the law prior to this act, see notes to Pt. I. c. 4, pp. 1206, 1207. OWNERS. Part VIII. Part Owners. 1413 freight, cargo, or otherwise, follows the general law of partnership. Green v. Briggs, 6 Hare, 395, 632 ; 12 Jur. 326 ; 17 L. J. Chanc. 323. 2246. One who is interested in the freight alone, held liable to contribute his proportion of the expenses incurred by the ship in earning the freight. Lind- say v. Gibbs, 22 Beav. 522 ; 2 Jur. N.S. 1039. 2247. A purchaser of shares in a ship is entitled to share in the ship's earnings only after deduction of the expenses in- curred in making those earnings. Green v. Briggs, supra ; Lindsay v. Gibbs, supra. 2248. The possession of one owner is the possession of all. Ex parte Machel, 1 Eose, 447 ; 2 V. & B. 216. 2249. Held, prior to the M. S. Act Amendment Act, 1862 (c. 63), s. 3, that one shipowner could not bind another un- less the names of both appeared together as owners in the same registry, Lord Eldon being of opinion, under the cir- cumstances, that the two persons were not co-owners. Campbell v. Stein, 6 Dow. 135. And see No. 2264. 2250. One part owner cannot recover damages against another by an action at law on a charge of wilfully and deceit- fully sending the ship to foreign parts, where she was lost. Graves v. Sawcer, Sir T. Eaym. 15 ; 1 Keb. 38 ; 1 Lev. 29. 2251. One part owner cannot have re- dress in equity against another for the loss of a ship sent to sea without his assent. Strelley v. Winson, 1 Vern. 297 ; Skin. 230. 2252. If a ship be chartered for the purpose of trade and warfare, and after- wards be sent on a voyage of discovery against the consent of the owners, whereby the ship is lost, the owners may sue for the value of their property. Aliter, if one of the owners consent to the voyage. Lewin v. The East India Co., Peake, 318. 2253. A vessel belonging to a number of part owners was forcibly taken by the minority out of the possession of the ma- jority, and sent by the former upon foreign voyages, on one of which it was ultimately lost. Held, that trover could not be maintained. One tenant in common of a chattel, cannot maintain trover for it against his co-tenants while the right of recaption remains; but when that right has been put an end to by the act of the co-tenant, an action of trover lies. Knight v. Coates, 1 L. E. Exch. 53. [Irish.] 2254. A part owner of a ship is entitled to sue for recovery of his share of the damage occasioned by her having been destroyed. Lawson v. Leith and New- castle Packet Co., 13 D. 175; 23 Jur. 51. [Scotch.] 2255. If part owners of a ship are con- nected together so as to be considered partners, a payment made by one will revive a joint debt as against the other, and will prevent the operation of the Statute of Limitations, though the pay- ment is made for the express purpose of so reviving the debt. Griffiths v. Hicks, 15 L. T. 349. 2256. The objection that a partner cannot sue his co-partners is a technical objection, and in a case in which the proceedings are in rem, the rule does not apply that the rest of the partners cannot recover as against the ship, partly owned by one of them. The West Friesland, otherwise Twentje, 5 Jur. N.S. 659. 2257. A partner may arrest the ship (the property of himself and co-partner) in a suit for necessaries. Ibid. 2258. Covenant by the master of a vessel with the several part owners and their several executors, administrators, and assigns, to pay certain moneys to them in such proportions as were set against their several names. Held, a several covenant, that each covenantee must therefore sue separately, and not all jointly. Servante v. James, 10 B. & 0. 411: 2259. No question arises as to the jurisdiction of the court in enforcing the rights of some against the other part owners of a ship with regard to the management of the ship, and the posses- sion of the certificate of registry, when those rights are regulated by an agree- ment entered into between all the owners of the ship. Darby v. Baines, 9 Hare, 369; 21 L. J. Chanc. 801. 2260. Semble, the master, though the original hypothecator of the ship and a part owner, is not precluded by the practice of the Court of Admiralty from joining his co-owners in impugning the bond. Soares v. Rahn {The Prince of Saxe Cobourg), 3 Moore, P. C. C. 1. 2261 . Eestitution had passed, in solidum, of three-fourths of the property claimed, to an American house of trade. Afterwards, on petition, it appeared that one of the partners was an English merchant, and a bankrupt. His assignees prayed a sever- ance of his particular share, to be paid to them as his representatives, for the benefit of his creditors. The court refused it, as no part of the duty of the Prize Court of 1414 OWNERS. Part VIII. Part Owners. Admiralty, saying, the petitioners must resort to some other authority to make the discrimination between this American partnership stock, for the purpose of sub- jecting a particular share to a British bankruptcy. The Jefferson, 1 0. Bob. 325. 2262. The ship and the several portions of cargo having been each specifically claimed as the property of various indi- viduals, the Prize Court refused to enter- tain a subsequent claim of another party for ship and cargo. The Little William, 1 Acton, 148. 2263. A. and B. were joint owners of a ship ; A. working the ship, defraying all the expenses, and taking the uncontrolled management of her, and paying himself by taking two-thirds of the gross earnings; B. taking the remaining one-third as his portion. Held, that A. was a hirer of the share of B., and not the servant or agent of B., so as to render B. liable in any action for damages caused by the negli- gence of A. Bernard v. Aaron, 9 Jur. N.S. 470. 2264. A managing owner of a vessel has power to bind his co-owner as his agent, to release the vessel from an arrest in the Admiralty Court in a suit for collision, by procuring bail for damages and costs in such suit. Barker v. Highley, 32 L. J. C. P. 270 ; 11 W. E. 968 ; 9 L. T. N.S. 228. 2264a. Where, therefore, such manag- ing owner has obtained the release of the vessel by procuring such bail, and the suit in the Admiralty Court has terminated against the vessel, the bail is entitled to recover from the other owner the amount which such bail has had to pay under the bail-bond. Ibid. 2265. For provisions that a surety or co-debtor discharging his liability shall be entitled to an assignment of all the securities held by the creditor, and to all his rights and remedies against the debtor or co-surety, co-contractor, or co-debtor, see the Mercantile Law Amendment Act, 1856 (c. 97), s. 5. 2266. For provisions protecting the rights of persons acquiring title to goods before they have been seized or attached under a writ against the vendor, see ibid. s. 1. 2267. A part owner acting as master may be guilty of barratry as against his co-owners. Jones v. Nicholson, 10 Ex. 28 ; 23 L. J. Ex. 330. 2268'. The plaintiffs repaired a vessel upon the order of the ship's husband, and the cost of such repairs was apportioned amongst the co-owners according to their shares. One of the co-owners paid, through the ship's husband, his proportion by a bill, which was dishonoured at maturity. Held, that the remaining co-owners were bound by the mode of payment adopted, that they were not in the position of sure- ties, and. that they were liable for the amount of the bill. Mould v. Andrews'. 35 L. T. N.S. 813. 2269. "Where a vessel is at a home port and the owners are easily accessible, a managing part owner cannot without spe- cific authority bind the other part owners for unusual and structural alterations in the vessel. Steele v. Dixon, Cases in the Court of Session, 4th series, vol. 3, p. 1003. [Scotch.] 2270. The other part owners are liable in respect of their shares as well as the master, also a part owner, for short de- livery of cargo. The Emilien Marie, 44 L. J. N.S. Adm. 9. 2271. In a suit for limitation of liability where it appeared that the master, who was on board, at the time of the collision, was a part owner, the court limited the liability of the remainder of the owners without prejudice to any right of action against the master in respect of his negli- gence. The Cricket; The Endeavour, 5 Asp. 53. 2272. The agents of a foreign ship in a British port who have paid for neces- saries supplied to her, or who have ren- dered themselves liable to pay for such necessaries, may sue the ship for such advances as were made on the ship's account, but not for the balance of a general account against her owners. A co-owner in a ship may sue the ship for such advances made by .him, but semble, not if the co-owner is interested in the particular voyage for which the ship is supplied.* ( The West Friedland, Swabey, 455, followed). The Underwriter, 1 Asp. N.S. 127. * (564) As to the rights and remedies inter ae of partners generally, see Tudor's Leading Oases in Mercantile and Maritime Law, 3rd ed. pp. 464—590. (565) As to the rights and liabilities of part owners, inter se, see 1 Maude & Pollock on Merchant Shipping (4thed.),pp. 101—108. (566) As to the joinder and non-joinder of part owners in actions by and against them, see Maclachlan on Merchant Shipping (3rd OWNERS. Part VIII. Part Owners. 1415 2. Possession. 1 . Generally.* 2273. The court inclines against dispos- session, and requires the plaintiff's claim to be clearly proved. The Victoria, 8wa- bey, 408 ; 5 Jur. N.8. 204. 2274. The party holding the bill of sale has the legal title, and is entitled to the possession against the asserted equitable interest in others. Sentence accordingly in a cause of possession. The Sisters, 5 0. Eob. 155. 2275. In a cause of possession, held, that the interest of a shareholder who had died since the commencement of the pro- ceedings, and whose personal representa- tive had not given the practitioner any authority to proceed in the cause, is to be deducted from the estimate of the quantum of interest claiming a transfer of possession. Ibid. 2276. In a cause of possession the court will not, at the hearing, listen to the suggestion that certain of the owners had not authorized the proceedings taken on their behalf, the defendant's remedy being to call for a proxy in an early stage of the cause. The New Draper, 4 0. Rob. 290. As to proxies, see tit. Practice, Pt. II. c. 10. 2277. In causes of possession it is to be presumed that all those shareholders who do not apply are satisfied that the posses- sion of the vessel should not be altered. The Valiant, 1 W. Eob. 67. ed.), p. 124 ; and 1 Maude & Pollock on Merchant Shipping (4th ed.), by Pollock & Bruoe, pp. 109, 110. (567) If one tenant in common deprives the other of possession of the common chattel, and carries it away, no action lies against him, but if he destroys it he is liable to be sued by his companion. Maclachlan on Merchant Shipping (3rd ed.), p. 100 ; and 1 Maude & Pollock on ditto, p. 101 (4th ed.). (568) The owners, whatever be their mutual relation in respect of the ship as property, become, by the joint employment of her, partners in respect of the adventure, and the adjustment of their mutual claims and dis- putes in connection therewith is a question of partnership that can seldom be dealt with at common law. Maclachlan on Merchant Shipping (3rd ed.), p. 103. (569) Por the specific cases in which an ac- tion will he, see Ibid. (3rd ed.), pp. 103, 104. (570) In respect of the obligations incurred by the owners upon contracts with strangers, it is clear if they hold the ship as partners that all are jointly liable on the contract of each made in the name and for the purposes of the partnership. Ibid. p. 107. (571) If they are part owners and not partners, as is much more commonly the case, the law is that they are severally liable, each upon his own contract, made by himself, or by a duly-authorized agent on his behalf. Between partners the relation of principal and agent is implied by law; be- tween part owners it remains to be proved in fact. Ibid. (572) Part owners are not liable on con- tracts for the ship made by the master, merely because they are owners, or appear on the register as such, or hold themselves out as owners, and are in possession of the ship at the time of the contract, or because the con- tract is made by the registered master, acting as master with the privity and consent of the owners, and making the contract with their privity, and the goods and work are supplied and done on the credit of the owners, being fit, proper, and necessary for the ship under the circumstances existing at the time of the contract, unless the master is also held out by the defendants as their master of the par- ticular ship acting on their behalf in the con- duct, management, and direction of the vessel, and in ordering the goods and repairs. Ibid. p. 111. (573) "When part owners are liable to third parties their liability is not limited by the extent of their separate shares. 1 Maude & Pollock on Merchant Shipping (4th ed.), ! p. 95. (574) The American law is the same. See French v. Price, 24 Pick. 13; Williams v. Sheppard, 1 Green, 76; Milbum v. Guyther, 8 Gill. 92. [American.] * (575) The majority of owners in amount of interest have a right to the general control of the vessel, to direct repairs, supplies, &c. Bevens v. Lewis, 2 Paine, C. C. 202. [Ameri- can.] (576) A part owner may sustain a petitory suit against a merely fraudulent possessor, without joining the other part owners ; and if they do not appear, or object, and the libel- ; lant establishes his title, the court will decree the possession to him. The Friendship, 2 Curtis, 0. O. 426. [American.] (577) In America Courts of Admiralty have no jurisdiction to try questions of equitable title, and can only give possession to the owner of the legal title. The W. D. Bice, 20 L. E. 501 ; Kellum v. Emerson, 2 Curtis, C. C. 79. See also Bogart v. The John Jay, 17 How. 399; Kynoch v. The S. ft Ives, 1 Newb. Adm. 205 ; The Toronto, 12 L. E. 5. [American.] (578) A Court of Admiralty cannot hold an equitable title sufficient to justify its in- terposition against a legal title to obtain possession, though it may consider such title as sufficient to prevent any interference with an existing possession under it. The 8. G. Ives, 1 Newb. Adm. 205. [American.] 1416 OWNERS. Part VIII. Part Owners. 2278. In a cause of possession promoted by the original owner against a purchaser under a sale by the master abroad, pos- session decreed (on motion, and semble, by consent) to the original owner, on giving bail to answer the other party's interest, and to cover freight, &c, while in his possession. Application of the purchaser to release the ship to him on bail, refused. The Partridge, 1 Hagg. 81. 2279. In consequence of the representa- tions which have been made in numerous instances of the damages sustained by ships arrested in causes of possession lying for a length of time in harbour, the court has recently been induced to release them on bail. The Peggy, 4 C. Eob. 306. 2280. Ship released on bail in this case. Ibid. 2281. In a cause of possession bail is taken as a substitute for the substance of the ship, but does not include a stipula- tion for any earnings that may be made. Application for bail to cover intermediate earnings refused. Ibid. 2282. In a cause of possession brought by the owner of 43 sixty-fourth shares against the master, owning the remaining shares, held, that the latter was not en- titled to retain possession of the vessel upon an offer of security to the amount of his co-owner's interest. The Kent, 1 Lushington, 495.* 2283. Possession of a ship, time having been allowed for an appearance by the defendant, decreed to the plaintiffs, on affidavits and motion ex parte. The Lagan, otherwise Mimax, 3 Hagg. 418. 2284. In a cause of possession, motion in proceedings by default, to decree pos- session to the executor of a moiety owner, refused ; but a monition against the parties having the remaining interest, to appear and show cause, granted. The Egyptienne, 1 Hagg. 346, n. 2285. In the Prize Court of Admiralty restitution had passed in solidum of three- fourths of the property claimed to an American house of trade. Afterwards it appeared that one of the parties was an English merchant and a bankrupt. His assignees prayed a severance of his par- ticular share to be paid to them as his representatives for the benefit of his cre- ditors; application refused. The Jefferson, 1 C. Eob. 325. 2286. The ship and the several portions of cargo having been each specifically claimed as the property of various indi- viduals, the Prize Court refused to enter- tain a subsequent claim of another for the ship and cargo. The Little William, 1 Acton, 148. 2287. It -was agreed among the pur- chasers of a ship that two of them should be the ship's husbands, and not be re- moved except on certain specified grounds. In May, they obtained a charter-party for her, and privately stipulated for a weekly payment in addition to the sum payable by the terms of the charter-party. In con- sequence of this, upon the other owners obtaining full information of their deal- ings, notice was given to the ship's hus- bands of their dismissal in the following October. The ship's husbands denied the right to dismiss them, and possessed them- selves of the machinery of the ship, which was then being repaired ; held, on its ap- pearing that a decree for possession could not be obtained in the Admiralty Court in time to enable the vessel to fulfil her engagement, that the Court of Chancery had power to appoint a receiver of the machinery and direct the possession of it to be delivered to him. Brenan v. Preston, 2 De Gex, M. & G. 813. 2288. The plaintiff alleged that by bill of sale duly registered the defendant, as sole owner of the vessel, transferred for valuable consideration a moiety of his interest to T. W., who, by a subsequent bill of sale duly registered, transferred that moiety to the plaintiff for value. The defendant denied that he had at any time signed any such bill of sale to T. "W., and alleged that if any such bill of sale had been registered, it was registered fraudulently. The execution and regis- tration of the bills of sale were proved, and the court directed the question whether the fraud alleged could affect the rights of the plaintiff to be raised on demurrer. The plaintiff thereupon de- murred to so much of the defence as alleged fraud. Demurrer sustained on the ground that the legal ownership in the" moiety of the vessel having passed to * (579) According to the present practice the court will not, in a cause of possession, release the ship on bail, except when both parties consent to that course. (580) In the American courts it is the practice, though not of very ancient date, to release the ship on bail in causes of posses- sion. Dunlap's Adm. Prac. (2nded.), 165; The Alligator, 1 Gall. 145. [American.] (581) Bail in such cases is given for the value of ship, and her intermediate earnings. Hid. OWNERS. Part VIII. Part Owners. 1417 the plaintiff for valuable consideration by execution and registration of a bill of sale •without notice of fraud, the plaintiff had thereby acquired a title thereto against the defendant. The Horlock, 2 P. D. 243 ; 36 L. T. 622. 2289. The United States Government having instituted a cause of possession, the defendant pleaded that the late Government of the Confederate States, through whom the plaintiff claimed, having contracted to purchase the vessel fraudulently dispossessed him of it with- out paying the purchase-money, and prayed that possession might not be de- creed to the United States Government until it had satisfied his lien for unpaid purchase-money. On motion by the plain- tiff to reject the plea, held, that the plea was good, and that if substantiated the court would grant the prayer. The Beatrice, otherwise The Rappahannock, 36 L. J. Adm. 9. 2290. As to displacing the master at the suit of the owners or major owners, see tit. Masters, c. 3, p. 1118. 2291. As to practice in actions of pos- session, see tit. Peactice, Pt. III. c. 1462. 2. Between Foreigners. 22n. SeePt. I. p. 1182. 3. Jurisdiction of the Admiralty Division. See tit. Jurisdiction, Pt. I. p. 638. 4. Jurisdiction of the High Court of Ad- miralty before the Judicature Acts.* 2293. The Court of Admiralty (prior to its abolition by the Judicature Acts), had jurisdiction to decide all questions as to the title to or ownership of any ship or vessel, or the proceeds thereof remain- ing in the registry, arising in any cause of possession instituted in the court. See 3 & 4 Vict. c. 65, s. 4. 2294. The Court of Admiralty had jurisdiction to decide all questions aris- ing between co-owners, or any of them, touching the ownership or possession, employment and earnings of any ship registered at any port in England or Wales, or any share thereof, and might settle all accounts outstanding and un- settled between the parties in relation thereto, and might direct the said ship or any share thereof to be sold, and might make such order in the premises as to it should seem fit. See the Admiralty Court Act, 1861 (c. 10), s. 8. 2295. This section held to be retro- spective. The Idas, Br. &Lush. 65 ; 2 N. E. 45. 2296. In a cause of possession when the Court of Admiralty was applied to at the instance of a legal owner it would not enforce his claim in disregard of equitable rights. A. was legal owner of thirty-six shares of a vessel, the master B. was legal owner of the other twenty- eight shares, and equitable owner as to four of A.'s shares, so that their bene- ficial interests were equal. Held, that A. had not such a title to the ship as entitled him to the aid of the court to take the possession out of the hands of the master. The Victoria, Swabey, 408 ; 5 Jur. N.S. 204 ; 7 W. E. 330. 2297. In a cause instituted between co-owners under sect. 8 of the Admiralty Court Act, 1861, an order granted against a dock company to bring in freight de- tained by them under a stop order of the defendants. The Meggie, L. E. 1 A. & B. 77. 2298. The mortgagee of a vessel duly sold the vessel under a power of sale contained in the mortgage deed. By mistake a discharge of the original mort- gage was indorsed on the mortgage deed and registered. On the vendee of the vessel subsequently presenting his bill of sale for registration, registration was re- fused, on the ground that the property in the vessel had passed to the mortgagor. The mortgagee and the vendee of the vessel having instituted a suit praying that the vendee might be pronounced the sole owner of the vessel, held, that the court had jurisdiction under the 3 & 4 Vict. c. 65, ss. 3 and 4, and the 11th section of the Admiralty Court Act, 1861, to entertain the suit, and order made in terms of the prayer. The Rose, L. E. 4 A. & E. 6 ; 42 L. J. Adm. 11 ; 1 Asp. 567. 2299. For cases as to the court's juris- diction as to possession before 3 & 4 Vict. c. 65, see The Elizabeth and Jane, 1 "W. Eob. 278 ; The Egyptienne, 1 Hagg. 346 ; The John of London, 1 Hagg. 342 ; The Valiant, 1 "W. Eob. 67. * (582) As to the full jurisdiction of Ameri- can Admiralty Courts over causes of posses- p. sion and title, see The Tilton, 5 Mason, 465 ; Wordy. Peck, 18 Howard, 267. [American.] 4 v 1418 OWNERS. Part VIII. Part Owners. 2300. See further, as to the jurisdic- tion of the Court of Admiralty as to title and change of possession of a ship, Pt. I. pp. 1 1 80—1 182 ; as to prohibition of deal- ing with a ship or share, ibid. p. 1204; and as to sale on non-qualified owner becoming entitled, ibid. p. 1205. 5. Right to displace Master. 2301. See tit. Masters, c. 3, p. 1118. 3. Actions of Restraint.* 1 . Generally. 2302. Where there are several part owners of a ship, the minority may arrest the ship in the Admiralty Court, and compel a security to be given by the others before they shall be permitted to navigate out of port. Ouston v. Hebden, 1 Wils. 101. 2303. The court has authority to arrest a ship upon the application of a part owner who dissents from her intended employment, to compel the other part owners to give security to him, to the value of his share, for her safe re- turn, and to enforce »the same on the vessel being lost. The Apollo, 1 Hagg. 306, 311; the Margaret, 2 Hagg. 278; King v. Perry, 3 Salk. 23 ; More v. Row- botham, 6 Mod. 162; Dimmockx. Chand- ler, 2 Stra. 890 ; Blachet v. Ansley, 1 Ld. Eaym. 235 ; Lambert v. Acretree, ibid. 223; Ouston v. Hebden, 1 Wils. 101; Degrave v. Hedges, 2 Ld. Eaym. 1285 ; (overruling Justice v. -Brown, Hardres, 473 ; and Knight v. Berry, Eep. temp. Holt, 647; 1 Show. 13; Comb. 109; Carth. 26). 2304. The Court of Admiralty is open all the year round to applications by part owners to restrain the sailing of ships without their consent, until security be given to the amount of their respective shares. Haly v. Goodson, 2 Mer. 77; 2 Dod. 420. 2305. A mortgagee not in possession of a share of a ship is not entitled to arrest a vessel for the purpose of enf ore ing bail for her safe return to this country. Motion on behalf of a mortgagee for such purpose rejected. The Highlander, 2 W. Eob. 109. 2306. If a British merchant embark his property in shares of a foreign vessel, he becomes, as regards her government and management, subject to the law of the foreign state to which she belongs. The Graff Arthur Bumstorff, 2 Spinks' Eccl. and Adm. Eep. 30. 2307. The court has no power, at the suit of a British part owner of a. foreign ship, to arrest her until bail is given for her safe return to her own port abroad. Ibid. 2308. Application, at the instance of British part owners, for warrant to arrest a foreign vessel until she gave bail for her return, refused, it not being shown that such was the law of the country to which she belonged. Ibid. 2309. Security having been decreed and given by part owners to another part owner * (583) The ordinances upon this subject of the several commercial nations of conti- nental Europe are different, and all of them differ from the law of England, which pos- sesses this important advantage over them, that while, in common with them, it autho- rizes the majority in value to employ the ship "upon any probable design," it takes care a,t the same time to secure the interest of the dissentient minority from being lost in the employment of which they disapprove, by exacting security for her safe return. See Conkhng's American Adm. Prac. (2nd ed.), 321, 322 ; Maclachlan on Merchant Shimrins (3rd ed.), p. 99. ** 6 (584) By the major part is meant value, not number. 2 Brown, Civil and Adm. Law (2nd ed.), 131. (585) The law of America is the same in these respects as that of England, except that when the minority are in favour of employing' the ship it has been held that their opinion ought to prevail. The Steamboat New Or- leans v. The Phcelus, 11 Peters, 175; 12 Curteis, D. S. 0. 391. See Conkling's Adm. Prac. (2nd ed.), 323; Dunlap's Adm. Prac. (2nd ed.), 82 ; Parsons on Admiralty Law, vol. ii. p. 555 ; Stedman v. Feidler, 20 N. "¥■ (6 Smith), 437 ; Willings v. Blight, 2 Pet. Adm. 288 ; Steamboat Orleans v. Phcelus, 11 Pet. 175. [Amebican.] (586) Part owners to the extent of an equality of interest may similarly arrest the ship and compel security for her safe return. Introduction to Godolphin's Adm. Jur. ; and MoUoy, Book 2, ch. 1, s. 2, p. 308 (9th ed.). (587) The owner of one-eighth of a vessel, and known to be such by the other owners, omitted, without fraudulent intent, to com- ply with the requisitions of the revenue laws, and the other owners projected a voyage of which he disapproved, and prayed for the usual security. Ordered that the other owners should give security to double the value of his share for the return of the vessel. Fox v. The Lodemia, Crabbe, 271. [Amekican.] OWNERS. Part VIII. Part Owners. 1419 for the safe return of the ship from a voy- age of which he disapproved, the vessel having been lost thereon, and the amount of bail, in consequence, brought into court, application of the major part owners for a reference to the registrar and merchants to inquire and report as to losses, demur- rage, &c, incurred by them in conse- quence of certain alleged vexatious pro- ceedings in Chancery, which had been taken by the part owner, and had delayed the vessel ; and that such amount might be deducted from the amount of bail brought in and paid over to them, re- fused, with costs, on the ground that the proceedings were not vexatious, nor such as to subject the party to the claim set up. The Apollo, 1 Hagg. 306. 2310. The court has jurisdiction to arrest a vessel in an action of restraint at the suit of a part owner holding a minority of shares, notwithstanding that the vessel is about to proceed on a voyage approved of by a majority of the part owners, and is being employed under a charter entered into by the ship's hus- band, appointed to act on behalf of all the owners. The Talca, 5 P. D. 169; 4 Asp. N.8. 226. 2311. It is not a bar to the claim that the manager or ship's husband who ar- ranged the employment of the ship was appointed with their acquiescence if they give reasonable notice of their objection to the employment of the ship. Ibid. 2312. Bill by one part owner against the master and other part owners, prayed an account of past earnings of the ship. Held, that the plaintiff's right to that relief was no ground for granting an in- junction to restrain the sailing of the ship until bail had been given for her safe return. Ibid. 2313. As to the jurisdiction on this head of courts of equity prior to the Judi- cature Acts, see Castelli v. Cook, 7 Hare, 89 ; 13 Jur. 675 ; Haly v. Goodson, 2 Mer. 77 ; 2 Dodson, 420 ; In re Blanshard, 2 B. & 0. 244 ; Christie v. Craig, 2 Mer. 137. 2314. As to practice and bail in such actions, see tit. Peaotice, pp. 1456, 1462. 2. Employment and Earnings.' 11 ' 2315. Security having been given in the Court of Admiralty by the majority of the owners of a ship for the share of an owner dissenting from the proposed voyage, and the ship having earned freight on that voyage, held (after refer- ence to Sir Leoline Jenkins, who certified the Law Marine and course of the Ad- miralty so to be), that the dissentient part owner was not entitled to any share of the freight earned on that voyage. Anon. (32 Car. 2), 2 Chan. Cases, 36 ; 6 Yin. Abr. 514; Boy on v. Sandforth, Carth. 63 ; Wynne's Life of Jenkins, vol. 2, p. 792. 2316. A part owner of a ship, which had been let to the East India Company for a voyage to India, after the other part owner had expended a large sum in re- pairing and fitting her out for the voyage, arrested the ship by process out of the Admiralty Court, and compelled the other part owner to give security for his share. The ship afterwards sailed to India and * (588) The ownersof the minority of shares who have obtained bail for the safe return of the ship from a voyage of which they disap- prove, cannot derive the slightest advantage from the employment of the ship, and are not entitled to any compensation for her dimi- nished value occasioned by the natural wear and tear of the voyage. The dissentients bear no portion of the expenses of the outfit, and are not entitled to share in the profits of the undertaking, but the ship sails wholly at the charge and risk, and for the profit of, the other owners. See Maclachlan on Merchant Shipping (3rd ed.), p. 99; and Conkling's Amer. Adm. Prac. (2nd ed.), pp. 321, 322. (589) On the refusal of one part owner of a vessel to_ give bond to dissolve an attach- ment on his share, the other part owners gave such bond, and took possession of the vessel, and agreed with the master to sail her on shares. Held, that the first part owner could not maintain an action against the master for any portion of the subsequent earnings of the vessel, especially while the suit in which the attachment was made was still pending. Taylor v. Richard, 3 Gray (Mass.) 326. [American.] (590) The owner of a minor part of a ves- sel having refused to consent to a proposed voyage, his share was appraised, and a bond given to him by the other owners, condi- tioned that, at the end of the voyage, which was to the West Indies and back, they would restore him his share in the vessel unim- paired, or, if she should be lost, would pay him the appraised value. Instead of return- ing her directly from the West Indies, they employed her several months in trade from thence to southern ports and back, and thence home. Held, that the obligee might main- tain an action on the bond for the detention of the vessel. Rodick v. Hinckley, 8 Greene, 274. [American.] (591) Held, also, that the rate for which she might have been chartered was a reasonable rule for the estimation of damages. Ibid. 4 y2 1420 OWNERS. Part VIII. Part Owners. returned home. Held, that the part owner who had taken the security was not en- titled to any share of the profits of the voyage, but was bound to pay his pro- portion of the repairs and outfit, he hav- ing been cognizant of the negotiations for the voyage, and having assented to the outfit prior to his arrest of the vessel. Davis v. Johnston, 4 Sim. 539. 2317. "Where one part owner of a ship freighted her expressly against the con- sent of the other, and the ship and cargo were lost, held, that the loss fell wholly on the partner who freighted. Horn v. Gilpin, Amb. 255. 2317a. A vessel chartered for a foreign voyage was arrested in execution of a decree obtained against a part owner for a debt, not the debt of the vessel. A bill for special loosing of arrestments having been presented by the other owners, held, that the vessel be allowed to proceed on her voyage, upon caution being found by the owners to make the vessel forthcoming to abide the result of the diligence by placing her within the jurisdiction of the court on her return in as good a condi- . tion as at the date of the arrestment ; or otherwise, that they should pay the value of the interest validly attached by the arrestment ; their rights and interests, and pleas in the matter, being reserved generally to all parties. Malcolm v. • Cook, 16 Court of Session Oases, 262. [Scotch.] 4. Actions for Accounts. 2318. The Court of Admiralty, prior to its abolition by the Judicature Acts, had jurisdiction to decide all questions arising between the co-owners, or any of them, touching the ownership, possession, em- ployment, and earnings of any ship re- gistered at any port in England or Wales, or any share thereof. See the Admiralty Court Act, 1861 (c. 10), s. 8* 2319. It might settle all accounts out- standing and unsettled between the par- ties in relation thereto. Ibid. 2320. It might direct the ship or any share thereof to be sold. Ibid. 2321 . And it might make such order in the premises as to it shall seem fit. Ibid. 2322. By the 8th section of the Admi- ralty Court Act, 1861 (c. 10), the Admiralty Court had jurisdiction, on a petition being filed by a part owner of a British ship, alleging that his co-owner, the ship's hus- band, had rendered false accounts, to order an account to' be taken of the earn- ings and disbursements of the ship and of moneys received upon insurances of ship and freight. The Idas, Br. & Lush. 65 ; 2 N. E. 45. 2323. Under the 8th section of the Ad- miralty Court Act, 1861 (c. 10), the court had jurisdiction over matters that had occurred between co-owners in relation to the employment of the ship, notwith- standing that the plaintiff might have parted with his shares in the ship prior to the institution of the suit. The Lady of the Lake, L. E. 3 A. & E. 29 ; 39 L. J. Adm. 40; 3 Asp. 317. 2324. The court will appoint a receiver in a co-ownership suit where circum- stances exist which, in the opinion of the court, render such a course just and con- venient. The Ampthill, 5 P. D. 224. 2325. All sums of money paid in respect of any loss or damage, as to which the liability of the owners of any ship is limited by the ninth part of this act, and all costs incurred in relation thereto, may be brought into account among part owners of the ship as money disbursed for the use thereof. See the M. S. Act, 1854 (c. 104), s. 515. 2326. A part owner of a vessel, shortly after her return from a voyage, sold his shares in the vessel and her appurte- nances to his co-owner, who was also ship's husband. Prior to the sale the ship's husband had made certain dis- bursements for stores for the next voyage. Held, that the ship's husband could not make the disbursements a charge against the vendor in the account between them of the profits of the previous voyage, but must bear them himself. Robertson v. Dennistoun, Court of Sessions Cases, 3rd series, vol. 3, p. 829. [Scotch.] * (392) To give the court jurisdiction under this act, the ship concerned must be one re- gistered in England or Wales, the parties to the suit must be co-owners, and the ques- tions between them such as touch owner- ship, possession, employment, or earnings, the power of settling accounts and of sale being subordinate and simply adminicular to the principal questions. Maclachlan on Merc. Shipping, Supplement to 3rd ed. p. 60. (593) To settle accounts means to discharge them by payment, see the M. S. Act, 1854 (c. 104), s. 191. To assume that it means here to take the accounts, and then to insti- tute a suit for that purpose principally, would be a construction of the language contrary to usage, and an assignment of equity jurisdic- tion to this court in its largest sense ; a con- struction not justified by the terms employed, and quite contrary to the caution manifested throughout the act against unnecessarily creating concurrent jurisdictions. Ibid. OWNERS. Part VIII. Part Owners. 1421 2327. A ship's husband, part owner, in his account of earnings and disburse- ments, must allow his co-owners the benefit of a deduction allowed by the broker on the commission for the charter- party. Ibid. 2327a. When a co-owner acts as ship's agent (not managing owner) for a coast- ing steamer at one or* her ports of call, ho cannot in a co-ownership action for the settlement of ship's accounts recover amounts due to him as agent. The Eider, 4 Asp. 104. 2328. In an action by one co-owner of a ship against the other co-owners under the Admiralty Court Act, 1861, for a settlement of accounts between the co- owners, the plaintiff is entitled to a settle- ment of such accounts only as have been or ought to have been rendered to the co-owners prior to the date of the writ in the action, and cannot recover any sum due upon accounts, which in the due course of the ship's business could not be rendered to the co-owners until after such date. Ibid. 2329. The plaintiff was owner of eight shares, and the defendant was owner of twenty-eight shares of the schooner Albion. The plaintiff having filed his petition under the provisions of the Ad- miralty Court Act, 1861, an ex parte motion on behalf of the plaintiff, and upon the consent of James Willshire, owner of eight shares, and Elizabeth Hellier, who claimed to be equally en- titled to four shares of the schooner, was made for an account of the earnings of the vessel since November, 1853, and for a sale. The court (the defendant having had notice of the motion and not having appeared) granted the application. The Albion, 1 Asp. 206. 2330. Ship lost; suit by one against the other part owner in the High Court of Admiralty for account. Account ordered to be taken of the earnings and disburse- ments of the ship, and of moneys received upon insurances of ship and freight. The Idas, Br. & Lush. 65 ; 2 N. E. 45. 2331. A vessel was chartered for twelve months, and during the currency of the charter the charterers made default in certain payments, and the charter lapsed. The vessel was re-chartered by a voyage charter from K. to E. During the per- formance of this voyage the defendant purchased a share in the vessel. Held, on objection to the registrar's report in a co-ownership action, that the defendant was not liable to bear any of the losses occasioned by the time charter. The Meredith, 10 P. D. 69. 2332. All the part owners must be made parties to a bill filed for an account of the profits of the ship. Moffat v. Far- quharson, 2 Brown, C. C. 338 ; Collyer on Partnership, 683. 2333. Before a voyage it is the duty of each owner to contribute his share of capital for the expenses of the outfit. A ship's husband (part owner) may therefore at once sue his co-owners for their shares of these expenses, and need not wait till the accounts are stated. Helme v. Smith, 7 Bing. 715. 2334. Construction of an agreement entered into by the part owners of a ship, with regard to the management of the ship and allowances for brokerage and commission. Ibid. See also Ouston v. Ogle, 13 East, 538. 2335. Part owners being jointly inte- rested in the use and employment of the ship, the law as to earnings follows the law in partnership cases. Green v. Briggs, 6 Hare, 402; 12 Jur. 326; 17 L. J. Ch. 323. 2336. Freight is not in this respect dis- tinguished from other earnings. Ibid. 2337. The gross earnings of a ship are liable as between co-owners, and before division amongst them, to the expenses incurred in the fittings up, outfit, and repairs of the vessel, necessarily made to enable her to proceed on the voyage in which the earnings have been gained. Ibid. 2338. Semble, for this purpose the re- pairs need not have been exhausted by the voyage. Ibid. 2339. Before division of profits among the part owners, a part owner of a ship has a right to require the gross freight to be applied in payment of the expenses of repairs to the hull of the ship, when such repairs were done with a view to the par- ticular adventure in which the earnings were made and without which that ad- venture could not have been undertaken. Ibid. ; 6 Hare, 395. 2340. It would seem that the circum- stance that the repairs are not exhausted in the adventure does not create any ex- ception to the rule. Ibid. 2341. As between mortgagee of a ship and owners, held, that before any division of profits the proceeds of the cargo must be applied in payment of the expenses of the outfit of the ship and of the voyage. Alexanders. Simms, 18 Beav. 80 ; 23 L. J. Ch. 721. 1422 OWNERS. Part VIII. Part Owners. 2342. As to the mortgagor's right to the gross profits of a voyage without deducting the expenses, held, that the rights between a mortgagor and mort- gagee of a ship are distinct from the rights between the mortgagee and the other part owners. Alexander v. Simms, 18 Bear. 81. 2343. A mortgagor cannot give a mort- gagee higher rights against the part owners than he, the mortgagor, himself had. Ibid. 2344. Nor can the mortgagee by taking possession acquire any such right. Ibid. 82. 2345. Part owners are not partners. Ex parte Young, 2 V. & B. 242 ; Ex parte Harrison, 2 Rose, 76. 2346. The share of one therefore is not liable for debts constituting a lien on the share of the others. Ibid. 2347. One part owner has upon the profits of another part owner a claim for the latter's share of the disbursements. Holderness v. Shackles, 8 B. & 0. 612. 2348. The separation of the share and the placing of it in casks marked by his name, held, not under the circumstances to operate to divest his co-owners of such claim. Ibid. 2349. A ship was abandoned to the un- derwriters by the assured, and was after- wards liberated, and earned freight, and returned home. Held, that the charges of provisions, wages, &c, before the abandonment, were charges on the owner. Thompson v. Bower oft, 4 East, 34, 52. 2350. And that those, after abandon- ment, were charges on the underwriter. Ibid. 2351. A ship owner has no power to insure the interests of his co-owners, un- less they specially direct him so to do. French v. Blackhouse, 5 Burr. 2728, 2730. 2352. A direction to insure given by one part owner only would not bind the rest. Ibid. 2353. As between -the owners of a ship and the assignee of the freight the pay- ment of wages and the expense of insuring the ship are proper deductions to be made from gross freight. Lindsay v. Gibbs, 4 Jur. N.S. 776 ; 28 L. J. Oh. 692. 2354. A ship having been arrested in the Court of Admiralty, the plaintiff, at the request of P., the owner of 62-64ths, entered into a bond for her release. This took place in the absence of the defend- ant, who was owner of the remaining two 64ths. Judgment was given against P., who became insolvent, and the plaintiff therefore had to pay the amount for which he was bourifi. Held, that he was entitled to recover the sum he had so paid from the defendant. Barker v. Highley, 2 N. E. 489. 2355. An account of the profits of a voyage settled by the major part of the owners shall conclude the rest. Bobinson v. Thompson, 1 Vern. 465. 2356. Accounts certified by one of the partners, held, under the circumstances, to be binding on the executors of the de- ceased partner. Semble, an authority to a member of a dissolved partnership to wind up the concern, close the books, and collect the debts, authorizes the party to state and settle the accounts. Luckie v. Forsyth, 3 J. & L. 388. 2357. An account current stated by one partner while temporarily in Scotland, held to be binding on another who was partner in the firm at the time the account was stated but who was then in India. Fergusson v. Fyffe, 8 CI. & F. 121. 2358. Managing owners of a privateer having neglected to render accounts and delayed the distribution of proceeds, charged with interest on the balances, and condemned in the costs of a suit for an account. Pearse v. Green, 1 J. &W. 135. 2359. As to the part owners who dis- approve of the voyage, and exact bail for the ship's safe return, being disentitled to any share of the profits, see cap. 3, s. 2, p. 14.19. 2360. For the principles which regulate a court of equity in opening stated and settled accounts, see McKellar v. Wallace, 8 Moore, P. 0. C. 378. 2361. As to the limitation of actions on merchants' accounts to suits commenced within six years, see the Mercantile Law Amendment Act, 1856 (c. 97), s. 9. 2362. As to laches, see tit. Laches, p. 800. 2362a. As to accounts of managing owners or ship's husband, see p. 1424.* * (594) The outfit of the ship, and all other expenses requisite to carry her through the voyage, being in the nature of capital in the adventure, of which each owner is bound to advance his proportion, the amount may be recovered in an action against him by the ship's husband without waiting the end of the adventure ; and when it has terminated, he is entitled to deduct from the gross earn- ings of the ship all expenses necessarily in- OWNERS. Part VIII. Part Owner s. 1423 23625. As to practice in such actions, see tit. Practice, p. 1463. 6. Sale by Court.* 2363. The Court of Admiralty has jurisdiction to decide all questions aris- ing between the co-owners, or any of them, touching the ownership, possession, employment, and earnings of any ship registered at any port in England or Wales, and may direct the ship or any share thereof to be sold, and make such order in the premises as to it shall seem fit. See the Admiralty Court Act, 1861 (c. 10), s. 8. 2364. This section is retrospective. See The Idas, Br. &Lush. 65; 2 K. E. 45. 2365. Motion on behalf of the owner of 16-64th shares for decree of sale of ship under sect. 8 of Admiralty Court Act, 1861 (c. 10), granted, notice of application having been given to the owners of the other shares, and no appearance having been given for them. The Albion, 6 L. T. N.S. 164. 2366. In a suit instituted by part owners for a sale, the defendants, the co- owners of the vessel, claimed damages alleged to have been occasioned by the plaintiffs negligently refusing to sell the vessel when desired to do so by the de- fendants, whereby the value of the vessel was depreciated. Held, that the court had jurisdiction under the 8th section of the Admiralty Court Act, 1861 (c. 10), to entertain the defendants' claim. The Ceylon, 3 Asp. 96. 2367. Under the 8th section of the Admiralty Court Act, 1861 (c. 10), the court has a discretionary power to direct the sale of a vessel, though opposed by a majority of the owners. The Nelly Schneider, 3 P. D. 152; 4 Asp. 54. 2368. The court granted an injunction ex parte, restraining the defendant in an action of co-ownership from dealing, and curred for it on the same adventure before distributing the profits among tho owners. Maclachlan on Merchant Shipping (3rd ed.), p. 104. (595) An insurance effected on the ship, or the ship and freight, as it is no part neces- sarily of the joint adventure, cannot be charged upon the joint proceeds without the common consent of the owners. Ibid. p. 105. (596) A prior settlement of accounts by the majority of the owners is binding on the others, and in the absence of fraud or gross error a suit by one owner to re-open the ac- counts after such a settlement will not be entertained. Ibid. p. 104, and the cases there cited. nAs to the functions, appointment, imuneraton of ship and insurance brokers, ibid. (3rd ed.), pp. 187—193. (598) One part owner of a vessel and cargo has no hen on the shares of another for ad- vances made on a voyage, or for a general balance of accounts. Braden v. Gardner, 4 Pick. 456 ; Patton v. The Randolph, 457 ; see Johnson v. The M'Donough, Gilpin, 101. [ American. ] (599) On the refusal of one part owner of a vessel to give bond to dissolve an attach- ment on his share, the other part owners gave such bond, and took possession of the vessel, and agreed with the master to sail her on shares. Held, that the first part owner oould not maintain an action against the master for any portion of the subsequent earnings of the vessel, especially while the suit in which the attachment was made was still pending. Taylor v. Richard, 3 Gray (Mass.) 326. [America^.] * (600) As to the court's jurisdiction as to sale prior to the Admiralty Court Act, 1861, see The Margaret, 2 Hagg. 275 ; Ouston v. Hebden, 1 Wils. 101. (601) For the laws of Scotland, France, Hamburgh, Rotterdam, and the Hanse Towns, as to the cases in which a dissentient part owner's shares may be sold or forfeited, see Maclachlan on Merchant Shipping (3rd ed.), pp. 98, 99. (602) By an action of Sett, the law of Scotland enables any part owner to fix the price at which his own shares might be pur- chased by the others, or theirs by him. The commissioners for assimilating the mercan- tile law of England and Scotland had the point (viz., the difference between the law of England and Scotland as to the sale of a dissentient owner's share) under serious con- sideration, but were obliged to report with- out being able to recommend an alteration. Ibid. p. 98. (603) Sale of ship decreed at the instance of the owner of a moiety. Skinner v. The Sloop Hope, Bee, 2. [American.] (604) Moiety owners were divided in opinion as to the voyage to be undertaken. Sale of vessel decreed, overruling decision of the court below. Davis v. The Brig Seneca, 18 American Jur. 486. [American.] (605) The ordinance of Louis XIV. as to sale of a ship under such circumstances held part of the general maritime law. Ibid. (606) See the opinion of Mr. Justice Story in favour of the Admiralty jurisdiction to decree a sale of the vessel when her owners disputed as to her employment, in Story on Partnership, ss. 435—439. [American.] 1424 OWNERS. Part VIII. Part Owners. the registrar from registering any deal- ing, in the shares of the ship, the subject of the action. The Horlock, 2 P. D. 243 ; 36 L. T. 622. 2369. The court will not exercise the power of sale conferred on it by the Admiralty Court Act, 1861 (c. 10), s. 8, by ordering the sale of a ship, unless a part owner — whether he be the owner of a minority or majority of shares — makes out a very strong case. Continued and embittered disagreements between two part owners held not to constitute suffi- cient reason for. the interference of the court. The Marion, 10 P. D. 4. 2370. As to sale of ship abroad by the master, see tit. Owners, Pt. I. p. 1220. As to sale on non-qualified owner be- coming entitled, ibid. p. 1205. 2371. As to registration on sale gene- rally, ibid. e. 3, p. 1184; and as to sale of ship generally, and certificates of sale, ibid. e. 8, pp. 1214—1227. 2372. As to sale of ship by the court for damage, salvage, costs, &c, see tit. Practice, p. 1461. 6. Managing Owner or Ship's Husband.* 1. Generally. 2373. The name and address of the managing owner for the time being of * (607) The ship's husband is either apart owner or a stranger, and may be appointed by writing or parol. His duties are to see to the proper outfit of the vessel, to have a proper master, mate, and crew, to see to the fur- nishing of provisions and stores, and to the regularity of all the clearances from the cus- tom house, to settle the contracts, to enter into proper charter-parties, or engage the vessel for general freight, to settle for freight, to preserve proper certificates and documents in case of future disputes with insurers and freighters, and to keep regular books of the ship. But without special powers he cannot borrow money generally for the use of the ship, though he may settle accounts, and grant bills for them, which will form debts against the concern. Collyer on Part- nership (2nd ed.), B. 5, ch. 4, s. 4 ; and see Maclachlan on Merchant Shipping (3rd ed.), p. 182 et seq. (608) The ship's husband is the accredited agent of the owners, and they are bound by all contracts made on their behalf within the scope of his authority for the purposes of the ship, in connection with her employment, if they are proper and necessary for her at the time ; but repairs, it seems, are not improper if necessary to make the ship seaworthy and fit for the voyage, merely because they are too substantial to be exhausted by the in- tended voyage. He has no implied autho- rity, however, to bind them by a contract of insurance on the ship, for he is the agent of the part owners, not as proprietors, in which respect they are divided and several, but as joint adventurers in her employment, and partners in the traffic for profit or loss. Mac- lachlan on Merchant Shipping (3rd ed.1. p. 185. ' (609) A ship's husband is prima facie the agent of all the owners for the management of the ship, with the requisite authority for that purpose, and any defence in derogation of such implied authority, either that the agent was not to deal on credit, or only to pledge his own name, must, it seems, be proved by the owners as being known to the creditor. Ibid. p. 113. (610) See further as to the function, au- thority, and duties *of ship's husband or managing owner, Ibid. pp. 182, 186. (611) As to the appointment and remune- ration of ship's husband, see Maude & Pol- lock on Merchant Shipping (4th ed.), p. 106. (612) The managing owner of a vessel re- presents the interest of all, and has the same power which the major part in interest have, with respect to the change of employment, and the preparation and outfit of the vessel in a manner suited to the profitable employ- ment in the business to which he is destined. Hall v. King, 10 Shep. 461. [American.] (613) The ship's husband or managing owner may bind the other owners for the outfit, care, and employment of the vessel, but he has no power to purchase a cargo on their credit without authority from them. Hewitt v. Buck, 5 Ibid. 147. [American.] (614) The ship's husband, in the absence of all special agreement, is presumed to have authority to do everything necessary to be done for the employment of the vessel, and has authority to make repairs and bind the vessel for the same; but as between the owners, he cannot subject them to expenses when forbidden so to do, and such expenses may be charged to his own share. Sevens v. Lewis, 2 Paine, 0. 0. 202. [American.] (614a) In France, the managing owners (armateurs) are responsible to their co- owners for negligence in the discharge of their functions, and even a ratification of the acts of the managing owner by his co- owners, whilst ignorant of the nature of his conduct, is no bar to then- claim ; but in estimating the loss they have sustained, it will be taken into account whether or not they have imprudently embarked in a specu- lation under the direction of a person well known to be inexperienced. D. L. 1879, H. 125. OWXERS. Part VIII. Part Owners. 1425 every British skip, registered at any port or place in the United Kingdom, shall he registered at the custom house of the ship's port of registry. "Where there is not a managing owner, there shall be so registered the name of the ship's hus- hand or other person to whom the man- agement of the ship is entrusted hy or on behalf of the owner ; and any person whose name is so registered shall, for the purpose of the M. 8. Acts, 1854 to 1876, be under the same obligations, and sub- ject to the same liabilities, as if he were the managing owner. Penalty for breach against the owner, or if more than one owner, against each owner in proportion to his interest in the ship, £100 each time the ship leaves any port in the United Kingdom. The M. S. Act, 1876 (c. 80), s. 36. 2374. A managing owner registered pursuant to the M. 8. Act, 1876 (c. 80), s. 36, is no more and no less than a man- aging owner before the act. He binds the owners, whose agent he is, hut not the other owners. Frazer v. Cuthbertson, 6 Q. B. D. 93 ; 50 L. J. C. L. 277. . 2375. Before a voyage it is the duty of each owner to contribute his share of capital for the expenses of the outfit. A ship's husband (part owner) may there- fore at once sue his co-owners for their share of these expenses, and need not wait till the accounts are stated. Helme v. Smith, 7 Bing. 709, 715. 2376. Agreement between ship's hus- band (part owner) and each and every of the others that a full account should be made of the ship's earnings on the voy- age, and the nett profits divided. Held, that for not making out the accounts and dividing the profits within a reasonable time after the ship's return an action lies against the ship's husband, though it he not averred in the declaration that the charges were or could have been ascer- tained before suit brought, for that is matter of defence. Owston v. Ogle, 13 East, 538. 2377. An express authority is necessary from a part owner of a ship to the ship's husband to order works not necessary as repairs, such as lengthening a ship ; but such authority once given cannot be re- voked after it has been acted upon, and it is for the part owner when sued for contribution to prove that it was revoked before the works were commenced, or a contract for them entered into. Chappell v. Bray, 30 L. J. Exch. 24. 2878. In an action against one of the owners for work done to one of his vessels by order of the ship's husband (himself a part owner as to some of them) such owner will be liable, unless it be 6hown that the dealing was that the person who directed the work to be done should be looked to exclusively. Thompson v. Fin- den, 4 O. & P. 158 ; hut see next case. 2379. Necessaries were supplied to a ship on the order of A., the ship's hus- band (himself a part owner), by whom alone the ship was managed. The de- fendant, a co-owner, knew that A. was the ship's husband, and had received a share of the profits. Held, to be evidence against the defendant in an action for necessaries, notwithstanding that the plaintiff had accepted in payment the brokers' hills, and the brokers having become bankrupt, had proved against their estate for the amount. Whitwell v. Perrin, 4 C. B. N.8. 412. 2380. H. agreed with his co-owners that they should be ship's husbands, and that for £900 they should have the earn- ings of the vessel for six months. Eepairs being necessary during this period, held, that the co-owners had power to pledge H.'s credit for the repairs. Preston v. Tamplin, 2 H. & N. 363, 684. 2381. Ship's husband kept at his banker's a separate account as to the ship's disbursements and profits. Held that the other part owners could not sue the bankers in respect of sums carried to that separate account. Sims v. Brittain, 4 B. & Ad. 375 ; Ex parte Gribble, 3 D. & Ch. 339. 2382. A ship's husband, although he has authority to enter into a charterparty, has no authority to cancel the same and to pay the charterers a sum for the can- cellation, although such compromise is for the benefit of the owners. Thomas v. Lewis, 4 Ex. D. 18 ; 48 L. J. 0. L. 7. 2383. A part owner of a vessel, shortly after her return from a voyage, sold his shares in the vessel and her appurte- nances to his co-owner, who was also ship's husband. Prior to the sale, the ship's husband had made certain dis- bursements for stores for the next voyage. Held, that the ship's husband could. 'not make these disbursements a charge against the vendor in the account between them of the profits of the previous voyage, hut must bear them himself. Robertson v. De«m"s. 1354; as to ships carrying passengers, p. 1355; in pilotage authorities districts generally, p. 1357 ; in the Trinity House, London District, p. 1359 ; in the Outports District of the same Trinity House, p. 1 366 ; in the Trinity House, Hull District, p. 1372 ; in the Trinity House, Newcastle-upon-Tyne District, p. 1375 ; in various other ports in England, p. 1376; in Scotch ports, p. 1388 ; and in Irish ports, p. 1393. 10. Pilotage Dues. Generally* 64. Subject to alteration by the Trinity House, there shall continue to be paid to all Trinity House pilots, in respect of their pilotage services, such dues as were immediately before the time when this act came into operation payable to them in respect thereof. See M. S. Act, 1854 (c. 104), s. 380. 65. For provisions enabling the Trinity House, London, by bye-law approved hy Order in Council to fix and alter rates of pilotage to be received by their pilots, but not to exceed those specified in Table (M). to this act, Ibid. s. 333, sub-s. 5. 66. For the rates of pilotage to he taken by the pilots of the Trinity House, London, for the London and English Channel districts, see their Bye-law and Schedule, approved by Order in Council of 1st November, 1862, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 74 ; and Parliamentary Returns, Nob. 325 of 1882, p. 186 ; and 222 of 1884, p. 17. * (30) For provisions enabling the Trinity House, London, to establish and alter rates of pilotage for their districts, to be regulated as therein mentioned, and for giving notice of the establishment or alteration thereof, see 6 Geo. 4, o. 125, s. 8. PILOTS. 6. Trinity House, Hull. 1439 11. Pilotage Dues on Foreign Ships. (a) Generally. 67. Subject to alteration by the Trinity House, there shall be paid in respect of all foreign ships trading to and from the port of London, and not exempted from pilotage, the following pilotage dues : as to ships inwards, the full amount of dues for the distance piloted, and as to ships outwards, the full amount of dues for the distance required by law. See M. S. Act, 1854 (c. 104), s. 381. 68. No foreign ship, whether in ballast or with cargo, or passengers, navigating between any port of the United King- dom or the Channel Islands, or Isle of Man, is subject to any other rate of pilot- age dues than British ships so employed. See the Customs Laws Consolidation Act, 1876 (c. 36), s. 141. (b) Interpreter 's Fees. 69. As to the rates to be charged for an interpreter to a pilot taking charge of a foreign vessel, see 2 Maude & Pollock (4th ed. by PoUock & Bruce), p. 77. (c) Persons liable. 70. Payment of pilotage dues on foreign ships trading to and from the port of Lon- don, shall be made to the collector of cus- toms in the port of London by one or more of the following persons : the master or other person in charge of the ship, or the consignees or agents thereof who have paid or made themselves liable to pay any other charge for the ship in the port of London. See M. S. Act,1854 (c. 104), s. 381, and similar provisions in 6 Geo. 4, c. 125, s. 44. (d) Receipt for Payment. 71. Subject to alteration by the Trinity House, the collector of customs shall, on receiving pilotage dues in respect of foreign ships, give to the person paying them a receipt in writing. See M. S. Act, 1854 (c. 104), s. 382. (e) Refusal of Clearance or Transire until Payment. 72. No officer of customs in the port of London shall grant a clearance or transire for any such foreign ship with- out production of such receipt. Ibid. (f) Power of Detention until Payment. 73. If any such ship attempts to go to sea without such clearance or transire, any such officer may detain her until the receipt is produced. Ibid. (g) Recovery. 74. Such pilotage may be recovered like other pilotage dues recoverable under this act. Ibid. 381. (h) Payment over to Trinity House. 75. Subject to alteration by the Trinity House, the collector shall pay over to the Trinity House the pilotage dues received by him in respect of any foreign ship. Ibid. s. 383. (i) Application of Payment by Trinity House. 76. Subject to alteration by the Trinity House it is to apply the pilotage dues re- ceived in respect of any foreign ship in paying the pilot who had charge of such ship such dues for such service as if the ship had been British, after deducting the poundage due to the Trinity House; and in paying to any unlicensed person who, in the absence of a licensed pilot had charge, such amount as it may think proper, not exceeding the amount so payable to a licensed pilot ; and to pay the residue to the Trinity House Pilot Pund. Ibid. 6. Trinity House, Hull. 1. Generally* 77. The Society of the Trinity House of Hull was established by letters patent of Henry VIII. of 7th November, 1541. By charter of 23 Elizabeth, 1st February, 1581, its rights, privileges, and posses- sions acquired under the letters patent of Henry VIII. were confirmed, and the society were empowered to make rules and regulations for the safe guiding and conducting of vessels in the port of Kingston-upon-Hull; to enforce penal- ties for the infringement of its regula- tions ; to examine and licence pilots to conduct vessels sailing and navigating into and out of the port of Kingston- upon-Hull and the limits and liberties • (31) The following acts of Parliament relate to the Trinity House, Hull :— 6 Geo. 3, c. 39; 52 Geo. 3, c. 39 ; 6 Geo. 4, c. 125; 2 & 3 Will. 4, c. 105 ; 12 & 13 Vict. c. 81 ; The M. S. Act, 1854 (c. 104), Pt. V. 1440 PILOTS. 6. Trinity House, Hull thereof, and into and out of and upon the Humber, and from the Humber out to sea, and between Plamborough Head, northward, and Winterton Ness, south- ward, and into and out of the several ports, creeks, harbours and places situate between those headlands ; to prevent un- licensed persons from taking charge of vessels, and to punish such as might do so. By charters of 7 Charles I. and of Charles II. these rights and privileges were further confirmed and extended ; and they are also ratified, confirmed and extended by 2 & 3 Will. 4, c. cv. ; and the M. S. Act, 1854 (c. 104), s. 387. 77a. The jurisdiction as to pilotage of the Trinity House of Kingston-upon- Hull, includes the port of Hull, river Humber, and New Holland, the ports of Gainsborough, Goole, Grimsby, Spalding, and Wisbech, and the East Coast, with the North and Baltic Seas, and the Catte- gat. See P. E. as to Pilotage, No. 264 of 1863. 78. Pull powers are granted to the warden, elder brothers and assistants of the Trinity House of Hull, to prevent any mariner of the port of Hull, or the limits thereof therein specified, from taking charge as master or pilot of any ship to cross the seas, or pass from Hum- ber beyond Plamborough Head north- ward, or Winterton Ness southward, other than duly-licensed pilots of that Trinity House, and to punish by fine or imprison- ment persons offending in. that respect. See the charters of 23 Eliz. and 13 Car. 2, to the Trinity House of Kingston- upon-Hull, cited in The Killarney, 1 Lush. 436. 79. The limits and liberties of the port of Kingston-upon-Hull are " all havens, creeks and other places where our cus- tomer of Hull, by virtue of his office, hath any authority to take any custom by the name of primage, as in times hereto- fore." Ibid. 80. The guild or brotherhood of mas- ters and pilots, seamen of the Trinity House in Kingston-upon-Hull, commonly called " The Corporation of the Trinity House in Kingston-upon-Hull," have, by usage for a long period of years and by virtue of letters patent or charters granted to them by the crown, been empowered to appoint pilots to conduct ships navi- gating into and out of the port of King- ston-upon-Hull, and the limits and liber- ties thereof, and into and out of and upon the river Humber, and from that river out to sea, and between Plamborough Head northward and Winterton southward, and into and out of the seve- ral ports, creeks, harbours and places situate between those two headlands or places. See 2 & 3 Will. 4, c. cv. s. 22. 81. The Trinity House in Kingston- upon-Hull are authorized to license pilots for conducting ships into and out of the port of Kingston-upon-Hull, and of the port of Great Grimsby in the county of Lincoln, and upon any part of the river Humber below the port of Kingston- upon-Hull, and so far out at sea as to bring the North Ness of Dimlington on the coast of Holderness to bear or be seen a sufficient distance clear or open of the land to the southward thereof, so as to pass clear of the New Sand, and also so far along the coast to the northward thereof as the North Ness of Dimlington, and to the southward thereof as headland on the coast of Lincolnshire, known as Donna Nook, and the pilots so licensed are for the purposes of this act called "Humber pilots," and all ships so sailing, navigating and passing, except as there- inafter provided, are to be piloted within those limits by such pilots and no others. Ibid. s. 89. 82. Por provisions when no pilot can be taken on board for a pilot in another vessel or pilot boat leading the way being paid pilotage as if on board, see Ibid. ss. 37, 38. 83. Every such Humber pilot taking charge of any ship about to sail out of the port, or from any of the roadsteads of the Humber, is hereby required to take charge of such ship at her moorings in any of the wet docks, or basins, or else- where in the port, or in any of the road- steads where the ship may then be, and to pilot her so far out to sea as to bring the North Ness of Dimlington tq bear a sufficient distance clear of the land to the southward thereof, so as to pass clear of the New Sand ; and whenever the pilot is required by the master of the ship, whether outward or inward bound, to attend the ship at anchor in any of the roadsteads in the Humber for any pur- pose, the pilot must attend accordingly, and for such services the pilot is to be paid as therein mentioned. Ibid. s. 40. 84. Every such pilot employed to pilot any ship into the port of Kingston-upon- Hull, is required to take her to such place or delivery in the haven or old harbour, or any of the wet docks of the port, as the master shall require, or so near thereto as he can safely get, and PILOTS. 7. Trinity House, Newcastle-upon-Tyne. 1441 there moor her in some proper situation, ■without any other payment than that directed for piloting the ship into the port. Ibid. s. 41. 85. If the attendance of the pilot is required to take care of the ship from such first mooring, and to conduct her higher up the haven or old harbour, or into any of the wet docks or other place of delivery, the pilot who has brought the ship to such mooring, or some other of the said Humber pilots to be by the commodore of pilots appointed for that purpose, on the application of the master, must attend and be paid for unmooring and removing the ship or vessel to such her place of delivery such pilotage as is therein mentioned. Ibid. 86. The corporation of the Trinity House of the port of Hull is to continue to appoint not more than seven nor less than three sub-commissioners, for exa- mining pilots in all districts in which it has been used to make such appointments, and may, with the consent of her Majesty in Council, appointlike sub-commissioners for any other district within its jurisdic- tion ; but no pilotage district under the authority of any sub-commissioners ap- pointed by this corporation is to be ex- tended, except with such consent ; and no such sub-commissioners are pilotage au- thorities within the meaning of this act. See M. S. Act, 1854 (c. 104), s. 387, and similar provisions in 6 Geo. 4, c. 125, s. 6 ; and 2 & 3 Will. 4, c. cv. ss. 52, 53. 87. For provisions for the Trinity House, Hull, on the certificate of such commissioners, to license such persons as pilots, see 2 & 3 "Will. 4, c. 105, ss. 52, 53. 88. For provisions enabling the com- missioners appointed under the act to make and alter bye-laws for the regula- tion of pilots, &c, Ibid. ss. 65 — 68. 89. For provisions defining for the purposes of the act the entrance of the River Humber, and the words " pilots," and "inward bound" and "outward bound," and the port of Kingston- upon- Hull, Ibid. s. 89. 90. For provisions as to vessels at Hull carrying ballast for hire being registered, measured, inspected, &c, Ibid. ss. 57 — 64. 91 . See further as to the Trinity House, Hull, and its members, and the exemp- tions from pilotage there in force, tit. Owners, Pt. VII. c. 12, p. 1372. 92. For the bye-laws of the Trinity House, Hull, from 1854 to 1863, see Par- liamentary Returns, No. 516 of 1855, p. 107; No. 244 of 1859, p. 44; and No. 325 of 1882, pp. 36, 37. 2. Pilotage where compulsory. 93. With what ships and under what circumstances pilotage is compulsory or optional within this district, see tit. Ownees, Pt. VII. p. 1372. 3. Pilotage Certificates. 94. For bye-laws and regulations re- lating to the granting of pilotage certifi- cates to masters and mates of vessels in this port and its members — Goole, Wis- bech, Spalding, and generally. See P. E. No. 325 of 1882, pp. 30—37. 4. Pilotage Dues. 95. As to the rates of pilotage of steam vessels and vessels towed by steam vessels in charge of pilots within the district of the Trinity House, Hull, see bye-law of that pilotage authority, approved by Order in Council of 20th November, 1 873, in 2 Maudo & Pollock (4th ed. by Pollock & Bruce), p. 83. 96. For provisions as to the payment of pilotage inwards, and as to the pay- ment beforehand of pilotage outwards, see 2 & 3 Will. 4, c. 105, s. 45. 97. For provisions as to pilotage pay- able to pilots detained on board ships per- forming quarantine, Ibid. s. 42. 7. Trinity House, Newcastle- upon-Tyne.* Generally. 98. The jurisdiction of this Trinity House is now transferred to the Pilotage * (32) The master, pilots, and seamen of the Trinity House of Newcastle-upon-Tyne, have been for a long series of years a ■corporation, and by long usage, and by virtue of various letters patent granted to them by the Crown, have possessed and en- joyed various powers, privileges, and fran- chises, and particularly the power of licens- ing pilots for conducting ships up and down the river Tyne, and into and out of the port of Newcastle, and the creeks and members belonging thereto, and of erecting and main- taining lights, buoys, and beacons in that port and river. See 41 Geo. 3, c. 86, s. 24. 1442 PILOTS. 9. Other Pilotage Authorities. Commissioners of the Tyne. See further thereon, tit. Owners, Pt. VII. c. 13, p. 1375. 99. The former pilotage jurisdiction of the Trinity House of Newcastle-upon- Tyne over the ports of Hartlepool, Sun- derland, and the Tyne, is transferred to separate Pilotage Commissioners for such ports. Ibid. 99a. See as to the port of Hartlepool, ibid. p. 1380; the port of Sunderland, ibid. 1386 ; and the Tyne, ibid. p. 1387. 8. Mersey Docks and Harbour Board. 100. All pilots shall ohey the hye-laws of the Board. See P. E. No. 325 of 1882, p. .61. 101. Every pilot shall use his utmost care and diligence to conduct the vessels under his charge safely and without damage or injury to others. Ibid. 102. Pilots in charge of vessels at anchor in the river or channel shall cause white lights to be constantly exhibited at night, one on the forestay, and the other at the gaff end, to be not less than eight feet above the upper toprail of the bulwarks so long as at anchor in pilot water. Ibid. 103. All pilots shall obey, all orders and directions that may be given to them by the water-bailiff, harbour, dock and . pier-head masters, relative to the docking, towing, transporting or removing vessels under their charge. Ibid. 104. Every pilot shall duly keep the lead going when in charge of any ship or vessel while under way. Ibid. 105. He shall not leave his vessel until she is safely anchored in the river, nor then leave her without a written permis- sion from the officer in command or on being relieved by a qualified pilot by order of the master of the boat. Ibid. 106. He shall not lay any vessel aground without a written order from the owner or commander. Ibid. 107. "When received on board a pilot boat from an outward-bound ship, or otherwise, he shall submit to the autho- rity and direction of the master while he remains on board such boat in all respects as if he were one of her crew. Ibid. 108. During the night the boat on turn for boarding shall exhibit lights in ac- cordance with Art. 8 of the M. S. Act Amendment Act, 1862 (c. 63). Ibid. 109. Eor provisions in regard to pilot- age certificates to be granted to masters and mates of ships within the port of Liverpool, see Ibid. 110. Eor Mersey Bye-laws as to pilots, and pilot boats and pilotage annuity fund, see Ibid. 111. Every pilot shall report to the Superintendent of Pilotage, within twenty- four hours after leaving the vessel, all accidents which may have happened to or been caused by the vessel while in his charge. See Regulations of 20th July, 1882, as to pilots and apprentices in pur- suance of Bye-laws of the Mersey Docks and Harbour Board, No. 8. 112. See for the limits of this port and for further provisions as to pilotage thereon, tit. Owners, Pt. VII. c. 26, pp. 1381—1384. 9. Other Pilotage Authorities. 113. Eor the several other pilotage authorities, their powers, jurisdiction, limits, and rates of pilotage, see tit. Ownees, Pt. VII. for England! and "Wales, pp. 1376—1387; for Scotland, pp. 1388—1393; and for Ireland, pp. 1393 —1398. (33) These powers and authorities of the Trinity House of Newcastle-upon-Tyne were ratified and extended by 41 Geo. 3, c. 86, and were further ratified by the Merchant Shipping Act, 1854 (c. 104), ss. 331—333, 387. (34) The jurisdiction of the Trinity House of Newcastle-upon-Tyne formerly included the ports of Shields, North Sunderland, Sea- ham, West Hartlepool, Stockton, Whitby, Blyth, W^rkworth, Middlesbro', Almnouth, Hartley, Camboise Harbour, and Seaton Sluice, and the North Sea, East Coast, and Holy Island. See P. E. No. 264 of 1863, p. 63. (35) Its jurisdiction as to Holy Island confirmed. See 41 Geo. 3, c. 86, s. 24. (36) As to the appointment by the Trinity House, Newcastle-upon-Tyne, of Bub-com- missioners and their authority, see Merchant Shipping Act, 1854 (c. 104), s. 387. PILOTS. 10. Pilotage Certificates. 1443 10. Pilotage Certificates. 1. By Pilotage Authorities generally. 114. The master or mate of any ship may apply to any pilotage authority to be examined as to his capacity to. pilot the ship of which he is master or mate, or any one or more ships belonging to the same owner, within any part of the district of such pilotage authority ; and if found competent a pilotage certificate is to be granted to him, enabling him to pilot the ship or ships therein specified, of which he is acting as master or mate at the time, but no other, within the limits therein described, without incur- ring any penalties for the non-employ- ment of a qualified pilot. See M. S. Act, 1854 (c. 104),.s. 340. 114a. A pilotage certificate so granted is only in force for a year unless renewed, which it may be from time to time by indorsement under the hand of the secretary or other proper officer of the pilotage authority by which it was granted. Ibid. s. 341 ; see also tit. Owners, Pt. VII. p. 1356. 115. A master possessing a proper pilotage certificate, enabling him to do so, may pilot his ship without employing a licensed pilot. See M. S. Act, 1854 (c. 104), ss. 353—355. 115a. Semite, when the master or mate of a vessel is duly licensed under the 5th part of the M. S. Act, 1854, so as to ren- der it unnecessary for him to take a pilot on board, the employment of such pilot does not bring his owners within the im- munity of the 388th section. Ibid. 116. A master of a steam vessel trad- ing between Hull and Eotterdam passed an examination as to his qualification to pilot such vessel into and out of the port of Goole. On the next day, he having then sailed for Eotterdam, a certificate, enabling him to pilot his vessel into and out of the port, was completed, sealed, and dated, but remained in the office of the Commissioners until after the collision. Held, that such certificate had not been granted, and was not possessed by the master so as to exempt his ship from compulsory pilotage. The Killarney, 30 L. J. Adm. 41 ; 5 L. T. N.S. 21 ; 1 Lush- ington, 202. 116a. A misdescription of the owner- ship of a vessel will invalidate a pilotage certificate granted under sect. 355 of the M. S. Act, 1854 (c. 104). The Earl of Auckland, supra. 117. A pilotage certificate issued to a master under sect. 355, describing the ship as the property of a person who was not the owner either at the time of the granting of the certificate, or at the time of a collision subsequently occurring, is invalid at the time of that collision. Ibid. 2. By Board of Trade. (a) Generally. 118. If upon complaint it appears to the Board of Trade that any such pilotage authority has without reasonable cause refused or neglected to examine any master or mate, and to grant him a pilotage certificate, or that the examina- tion has been improperly conducted, or improper terms imposed, or that the certificate has been improperly with- drawn, the Board may appoint persons to examine such master or mate, and if found competent, grant him a certificate, upon such terms as such Board may think fit. It shall be in force for one year, and may be renewed from year to year. See M. S. Act, 1854 (c. 104), s. 342. (b) As to Passenger Ships. 119. The Board of Trade may, on proof or after examination as therein mentioned, grant a pilotage certificate to any master or mate of any ship carrying passengers between any places in the United Kingdom or Channel Islands, or endorse on his certificate of competency or service a certificate authorizing him to pilot any ship or ships belonging to the same owner, and of a draught of water not greater than that specified in the certificate, within the limits of any pilot- age district. The certificate remains in force for such time as the Board of Trade directs, and enables the master or mate therein named to conduct the ship or ships therein specified within the limits therein described. Ibid. s. 355. 119a. Under sect. 355 the Board of Trade can only issue certificates to mas- ters or mates for ships described in sect. 354, i.e. passenger ships navigating be- tween ports in the United Kingdom and the Channel Islands. Ibid. ; The Earl of Auckland, 1 Lushington, 164 ; 30 L. J. Adm. 121; 3 L. T. N.S. 786. 120. The master of every ship carry- ing passengers between ports in the United Kingdom or the Channel Islands, navigating within any district for which 1444 PILOTS. 12. Signals for- pilots are licensed, or any part thereof, is compelled to employ a pilot within any such district unless he or his mate has a pilotage certificate for such district. See M. 8. Act, 1854 (c. 104), s. 354. 3. By Trinity House, London. 121. As to the conditions upon which pilotage certificates are granted by the Trinity House, London, to masters and mates of ships, and the duties which holding such certificates entails, see Tri- nity House Bye-laws, confirmed t>y Order in Council of 1st May, 1855, in 2 Maude & PoUock (4th ed. by Poll. & Bruce), p. 71. Alia. Any master or mate who holds a pilotage certificate, granted by the Trinity House, London, under the M. S. Act, 1'854 (c. 104), is qualified to pilot any other ship or ships belonging to the same owner or owners, within the limits described in such certificate, without being compelled to employ a pilot, but under the conditions that the ship which he is so qualified to pilot is of no greater draught of water than the ship in respect of which his certificate was granted, and that the name and description of every such ship is added to his certificate. Ibid. No. 6, in Ibid. p. 72. 4. By Trinity House, Hull. 122. No certificate granted by the Corporation of the Trinity House, Hull, will authorize the person therein named to pilot any other ship than the ship or ships therein specified, and of which he may be actually master or mate at the time. See Bye-laws of the Trinity House, Hull, No. 9, confirmed by Order in Council of July 31, 1858. 5. Withdrawal. 123. If at any time it appears to the Board of Trade, or to any pilotage autho- rity, that any master or mate to whom a pilotage certificate has been granted by such Board or authority has been guilty of misconduct, or has shown himself in- competent to pilot his ship, such Board or authority (as the case may be) may with- draw his certificate. See M. S. Act, 1854 (c. 104), s. 344. 6. Fees. 124. As to the fees payable on the grant and renewal of such pilotage certi- ficates, Ibid. s. 343. 11. Pilot Ships and Boats. 1 . Generally. 125. All boats and ships regularly em- ployed in the pilotage service of any dis- trict are to be approved and licensed by the pilotage authority of such district, who may, at their discretion, appoint and remove the masters thereof. See M. S. Act, 1854 (c. 104), s. 345. 2. Flags and other Characteristics. 126. As to the distinguishing flags, lettering, and other characteristics of every such pilot boat or ship, and the duty of the master thereof to attend thereto ; penalty for default not exceed- ing £20. Ibid. s. 346. 126a. Whenever any qualified pilot is carried off in a boat or ship not in the pilotage service, he shall exhibit a flag of the above description, to show that there is a qualified pilot on board; penalty, for breach without reasonable cause, not exceeding £50. Ibid. s. 347. 127. If any such boat or ship, not hav- ing a licensed pilot on board, displays such a flag ; penalty against the owner or master not exceeding £50. Ibid. s. 348. 127a. Any pilot, master, or person in charge of any ship coming to any port in the United Kingdom, the Channel Islands, or Isle of Man from or touching at any place abroad where he has reason to apprehend that yellow fever or other highly-infectious distemper prevails, must on arrival hoist and continue the proper signal until the proper officer has given permission to haul it down. Penalty for breach, not exceeding £100, recoverable by information and summons before a stipendiary master or two justices, and in default of payment, imprisonment, not exceeding six months. See the Customs Laws Consolidation Act, 1876 (c. 36), s. 234. IS. Signals for—. 128. The signals for a pilot are to. be those specified in the second schedule to this act. See the M. S. Act, 1873 (c. 85), s. 19, and tit. Owners, Pt. II. p. 1248. 128a. Penalty against any master of a vessel who uses, or permits any person under his authority to use, any of such signals for any other purpose than that of summoning a pilot, or any other signal for a pilot, not exceeding £20. Ibid. PILOTS. 14. Qualified—. 1445 13. Draught of Water. 1 . False Declaration. 129. If any master, on being requested by any qualified pilot in charge to de- clare her draught of water, refuses to do so, or makes, or is privy to the making of, a false declaration to such pilot as to such draught ; penalty, not exceeding double pilotage. See M. 8. Act, 1854 (c. 104), s. 359. 130. Whenever a difference arises be- tween the master and the qualified pilot of any ship trading to or from the port of London as to her draught of water, the Trinity House shall upon application by either party, made, in case of a ship inward-bound, within twelve hours after her arrival or before she begins to dis- charge her cargo, and in the case of a ship outward-bound before she quits her moorings, appoint some proper officer who shall measure the ship, and settle the difference accordingly; and there shall be paid to the officer measuring such ship, by the party against whom he de- cides, one guinea if the ship is below, and half a guinea if above, the entrance of the London Docks at Wapping. Ibid. s. 384. 1 30a. As to the recording of the draught of water on ships generally, see tit. Owners, Pt. I. p. 1197. 2. Fraudulent Alteration of Maries. 1 30b. If any master or person interested in a ship makes, or is privy to the making of, any fraudulent alteration in the marks on the stern or stem post of such ship, denoting her draught of water, penalty not exceeding £500. See M. S. Act, 1854 (c. 104), s. 359. 14. Qualified—. 1 . Generally. 131. " Qualified pilot," in this act, means any person duly licensed by any pilotage authority to conduct ships to which he does not belong. Ibid. s. 2. 132. Any qualified pilot acting beyond the limits for which he is qualified by his licence is to be considered as an unquali- fied pilot. Ibid. s. 349. 2. Licences. (a) Generally. 132a. Every qualified pilot on his ap- pointment is to receive a licence specify- ing therein his name, place of abode and description, and the limits within which he is qualified to act. The licence must be duly registered, and he is not qualified to act until it is so registered. Ibid. 133. The Board of Trade by provisional order has power in cases where pilotage is not compulsory, and there is no re- striction on the power of duly-qualified persons to obtain licences as pilots, to enable any pilotage authority to license pilots for any part of the district for which no such licences exist. See M. S. Act Amendment Act, 1862 (c. 63), s. 39, sub-s. 5. 1 34. It has also power by provisional order to give facilities for enabling duly- qualified persons, after proper examina- tion, to obtain licences as pilots. Ibid. sub-s. 8. (b) Documents with — . 135. Every qualified pilot, upon re- ceiving his licence, is to be furnished with a copy of such part of this act as relates to pilotage, and a copy of the rates, bye-laws, and regulations esta- blished within the district for which he is licensed. See M. S. Act, 1854 (c. 104), s. 350. (c) Registration. 136. The principal officer of customs at or nearest to which any qualified pilot resides is to register the licence ; and the pilot must not act as such until his licence is so registered. Ibid. s. 349. (d) Production. 137. Every qualified pilot while so acting is to be provided with his licence, and to produce it to every person by whom he is employed, or to whom he tenders his services as pilot ; penalty for breach not exceeding £10, and liability to sus- pension or dismissal. Ibid. s. 357. (e) Delivery up. 138. Every qualified pilot when re- quired must produce and deliver up his licence to the pilotage authority who ap- pointed him. On his death the person in possession of his licence must without delay transmit it to that pilotage autho- rity. Penalty for breach not exceeding £10. Ibid. s. 352. 138a. The pilot cannot aver as an ex- cuse for his non-delivery up of his licence that the pilotage authority has acted capriciously or in an arbitrary manner. Henry v. Newcastle Trinity House Board, 8 E. & B. 723. 1446 PILOTS. 15. Employment of Qualified — . 15. Employment of Qualified—. 1. Generally. 139. No qualified pilot is entitled to act as such until his licence is registered. See M. S. Act, 1854 (c. 104), s. 349. 2. Pilotage where compulsory. 140. With what ships and under what circumstances the taking of a pilot is compulsory or optional ; see tit. Owners, pp. 1178, 1179. 3. By Possessors of Pilotage Certificates. 141. Under the 12 & 13 Vict. c. 88, held, that if a master or mate possessing a pilotage certificate employed any pilot to assist him, it must he a duly-licensed, and n»t an unlicensed, pilot. Beilby v. Scott, 7 M. &W. 101. 4. Right to supersede Unqualified — .* 142. A qualified pilot may supersede an unqualified pilot-. See M. 8. Act, 1854 (c. 104), s. 360; 1 4 2a. Suhj ect to alteration by any pilot-i age authority, penalty double pilotage against every master of any ship who, though not compellable to take a pilot, employs an unqualified pilot to pilot him within any pilotage district after a quali- fied pilot has offered or made a signal to take charge. Ibid. s. 353. 143. Penalty against an unqualified pilot assuming or continuing in the charge of any ship after a qualified pilot has offered to take charge of her not exceed- ing £50. Ibid. b. 361. 143a. Against the master of every ship compellable to take a licensed pilot in any partof the Trinity House, London, andout- port districts who, after a qualified pilot has offered to take charge or made a signal for that purpose, pilots such ship without a proper pilotage certificate, or employs or continues to employ an unqualified person to pilot her, penalty for breach, double pilotage ; and, in addition, if the Trinity House certify in writing under their common seal that the prosecutor is to be at liberty to proceed for it, an addi- tional penalty not exceeding £5 for every fifty tons burthen of such ship. Ibid. B. 376. 144. Subject to alteration by the Tri- nity House, every master of any ship coming from the westward, and bound to any place in the rivers Thames and Med- way (unless having a qualified pilot or ex- empted from compulsory pilotage), must, on the arrival of the ship off Dungeness, and thenceforth until she has passed the south buoy of the brake, or a line to be drawn from Sandown Castle to the buoy, display and keep flying the usual signal for a pilot ; and if any qualified pilot is within hail, or is approaching and within half a mile, and has the proper distin- guishing flag flying in his boat, such master shall, by heaving to or shortening sail, or other practicable means, facilitate such pilot getting on board, and give him charge of his ship ; or if there are two or more pilots offering at the same time, to such one of them as may, according to the regulations, be entitled to take such charge. Penalty for breach not exceed- ing double pilotage, to be paid to the Trinity House, and carried to the Trinity House Pilot Pund. Ibid. s. 378, and similar provisions in 6 Geo. 4, c. 125, s. 19. 145. Any licensed pilot within the limits of his licence, and qualification, may supersede any unlicensed pilot, or pilot not licensed within such limits, or acting beyond his qualification ; penalty against every person continuing in charge without being so duly licensed, after any duly-licensed and qualified pilot has offered to take charge, not exceeding £50, nor less than £20. See 6 Geo. 4, c. 125, s. 70. 146. Under this 70th section, too, it was held, that the prohibition did not pre- clude the master from applying to his vessel any moving power he might select. Thus, he was entitled to use another vessel, or boats, or a steam-tug for this purpose, and if this could not be done without necessarily devolving upon those who applied the power the selection of the course, and a certain portion or in- deed all the charge and conduct of the vessel in that course, still, if the bond fide object of the employment was the motive power, the person so employed was not a pilot, and was not within the meaning of the act. See 1 Maude & PoUock (4th ed. by Pollock & Bruce), p. 259, n. ; and Beilby v. Scott, 1 P. & B. 259 ; 7 M. &W. 93, therein cited. 147. Against every master of any ship * (37) See an interesting note on these sections and on analogous sections in prior acts as opposed to the decisions in The Kil- larney and The Hankow, in 1 Maude & Pol- lock (4th ed. by Pollock & Bruce), p. 259, note. PILOTS. '16. Remuneration of Qualified — . 1447 who acts as a pilot, or employs any un- licensed pilot, or any licensed pilot acting out of the limits for which he is qualified, or beyond the extent of his qualification, after any licensed and qualified pilot has offered to take charge, or made a signal for that purpose ; penalty, double pilot- age, and an additional penalty of five pounds for every fifty tons burthen of the ship, if the Trinity House, London, certifies in writing that the prosecutor is at liberty to recover such additional penalty. See 6 Geo. 4, c. 125, s. 58. Semble, still in force, see The Kittarney, 1 Lush. 426. 148. Held, under this 58th section, that the master of a ship who navigated her himself, though liable to double the amount of pilotage, was not liable to the penalty imposed by s. 70 of the same act. Beilby v. Shepherd, 3 Exch. 40. 149. Held, also, that the master was not liable for refusing to employ a pilot unless he produced his licence, even though the licence was not asked for. Hammond v. Blake, 10 B. & 0. 424. See, also, as to cases thereon decided under earlier sta- tutes, Usher v. Lyon, 2 Price, 118 ; Peake v. Carrington, 2 B. & B. 399 ; 5 B. Moore, 176 ; Reg. v. Chaney, 6 Dowl. 281 ; and Chaney v. Payne, 1 Q. B. 712. 150. As to the mode of reckoning the pilotage penalty under a similar provi- sion in sect. 11 of 52 Geo. 3, c. 59, see Mackie v. London, 6 Taunt. 256. 5. Pilot in Charge. Respective Duties of Pilot, Master, and Crew. 151. See tit. Owners, Pt. VLT. pp. 1398 —1411. 6. Detention in the Thames. 152. Every pilot in charge of any ship from the Thames to the Downs or else- where, must, without additional compen- sation, wait on board for three complete days while such ship may be detained at Gravesend or elsewhere, by any casualty, nor shall he at the end of those days quit the ship, or receive additional compensa- tion, if she is further detained by weather, but if the ship is longer detained there on any other account, the pilot must still (if required) remain in charge, if a com- pensation of six shillings per day is offered to him. See Bye-law, No. 6, of Trinity House, confirmed by the Chief Justice of the King's Bench, 16th -April, 1826, pursuant to 6 Geo. 4, c. 125, s. 11. 152a. As to the charges for a pilot's detention in the Thames during quaran- tine, see No. 166, infra. 16. Remuneration of Qualified—. 1 . Generally. 153. Pilots held not entitled, under 52 Geo. 3, c. 39, now repealed, to charge as lay days the days on which they enter and on which they leave a place of quarantine. The Bee, 2 Dodson, 498. 154. The docking of a ship is to be considered as equivalent to bringing her to ordinary moorings. The Adah, 2 Hagg. 330. 155. Claim of a pilot for an extra charge for taking a ship, which arrived before the West India Docks, her place of destination, too late, owing to the state of the tide, to be docked that day, into dock on the following day, pronounced against, on the ground that those ser- vices were included in the duty of pilots as set forth in the act of 6 Geo. 4, c. 125, and that the remuneration for such ser- vices was also included in the table of charges annexed to the act, the duty of docking, admitted under the act to attach on the day of a ship's arrival, being held to extend to the next working tide after her arrival. See M. S. Act, 1854 (c. 104), s. 326. 156. Held, that the tables A. and B., fixing the rates of remuneration to pilots, in the 6 Geo. 4, c. 125, now repealed, were to be considered together, and the allowances in one to be held as permitted in the other. Ibid. s. 328. 2. When leading Ships. 157. If any boat or ship with a quali- fied pilot on board leads any ship without such a pilot, and which, from particular cir- cumstances, cannot be boarded, the. pilot so leading is entitled to the full pilotage for the distance run as if actually on board such ship. Ibid. s. 356. 3. When superseding Unqualified — . 158. "When a qualified pilot supersedes an unqualified pilot, the master may pay the unqualified pilot a proportionate sum for his services, and deduct the same from the charge of the qualified pilot. In case of dispute the pilotage authority by whom the qualified pilot is licensed shall determine the sums to which each party is entitled. Ibid. s. 360. 1448 PILOTS. 16. Remuneration of Qualified- 4. When taken beyond Limits. 159. No pilot, except under circum- stances of unavoidable necessity, shall without his consent be taken to sea or beyond the limits for which he is licensed in any ship whatever. See M. S. Act, 1854 (c. 104), s. 357. 159a. Every pilot so taken is entitled, above his pilotage, to 10s. 6d. a day, in- clusive of the day on -which such ship passes the limit to which he was engaged to pilot her, and of the day of his being returned in the ship to the place where he was taken on board, or of such day as will allow him, if discharged from the ship, time to return thereto ; and in such latter case he is entitled to his reasonable travelling expenses. Ibid. 160. The money due for detention to a pilot carried to sea, under M. S. Act, 1854 (c. 104), s. 357, is not a pilotage due within s. 363, so as to make the amount recoverable by the pilot from the ship's broker under that section. Morteo v. Julian, 4 0. P. D. 216 ; 48 L. J. M. 0. 126; 4 Asp. 166. 5. Beyond Legal Rate. 161. Any qualified pilot demanding or receiving, and any master offering or paying him any other rate in respect of pilotage services, whether greater or less, than the rate demandable by law ; penalty not exceeding £10. See M. S. Act, 1854 (c. 104), s. 358. 162. But the Trinity House may by bye-law, with the sanction of her Majesty in Council, repeal or relax these provi- sions within the whole or any part of their district, so as to allow any pilot or class of pilots under their jurisdiction to receive, and any master to pay, a less rate. See ibid., as amended by M. S. Act, 1872 (c. 73), s. 9. 163. Licensed pilots for the Thames between Gravesend and London Bridge may, without incurring any penalty, take within those limits pilotage dues less than the legal rate from any ship exempted from compulsory pilotage, and no master incurs any penalty for paying any such lower rate, notwithstanding the 358th section of the M. S. Act, 1854 (c. 104). See Bye-law of the Trinity House, approved by Order in Council of 5th Feb. 1873, in 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 78. 164. No pilot licensed for exempted ships for the district between the Nore and Eochester incurs any penalty for taking within those limits pilotage from any exempted ship at a rate less than the legal rate, and no master of any such ship incurs any penalty for paying such lower pilotage. Ibid. 6th Sept. 1880, in Ibid. p. 190. 164a. It is a settled doctrine of the Ad- miralty Court, that no pilot is bound to go on board a vessel in distress, to render pilot service for mere pilotage reward. His refusal, under such circumstances, would subject him to no censure; and if he did 1;ake charge of a vessel so circum- stanced, he would be entitled to a salvage remuneration. The Frederick, 1 W. Bob. 17. See also tit. Salvage. 6. Detention in the Thames. (a) Generally. 165. As to the remuneration of a pilot detained in the Thames, see No. 152, supra. (b) During Quarantine. 166. The master or person command- ing any ship bound to the Thames, and repairing to the place appointed for quarantine, is to pay the full charges of pilotage up to Stangate Creek, or the place so appointed, and the pilot in charge is entitled to a further sum of 8s. a day for the days he is obliged to remain in quarantine. See 6 Geo. 4, c. 125, s. 41. Semble, revived by sect. 331 of M. S. Act, 1854 (c. 104). 7. Pilotage Rates and Dues. (a) Generally.* 167. The Board of Trade has power by provisional order in cases where pilot- * (38) As to the rates of pilotage now in force, see The Merchant Shipping Act, 1854 (c. 104), ss. 333 (5), 380, 381, and Sched. W. thereto, and 2 Maude & Pollock (4th ed. by Pollock & Bruce), p. 190. (38a) See also for the rates of pilotage in force, the returns of the different pilotage au- thorities to the Board of Trade, pursuant to s. 337 of the M. S. Act, 1854 (o. 104), in Par- liamentary Eeturns as to Pilotage, No. 516 of the year 1855, No. 354 of 1856, No. 5, Sess. 2, of 1857, No. 174 of 1858, No. 244 of 1859, No. 287 of 1860, No. 243 of 1861, No. 270 of 1862, No. 264 of 1863, No. 408 of 1867, No. 178 of 1871, No. 260 of 1872, No. 204 of 1874, No. 276 of 1875, No. 292 of 1876, No. 269 of PILOTS. 17. Responsibility of Qualified- 1449 age is not compulsory, and there is no restriction on the power of duly-qualified persons to obtain licences to enable any pilotage authority to fix pilotage rates for any part of the district for -which no such rates exist, and to enable that pilot- age authority to raise all or any of the pilotage rates in force in that district, or any part thereof. See M. S. Act Amend- ment Act, 1862 (c. 63), s. 39, sub-ss. 5 and 6. (b) Persons liable. 168. The owner or master of any ship obtaining the services of a qualified pilot, or such consignees or agents thereof as have paid or made themselves liable to pay any other charge on account of such ship in the port of her arrival or dis- charge as to pilotage inwards, and in the port from which she clears out as to pilotage outwards, are liable to pay pilot- age dues under this act ; but such reco- very shall not take place until a previous demand in writing, and seven days after- wards. See M. S. Act, 1854 (c. 104), s. 363. 169. Every consignee and agent (not being the owner or master) hereby made liable for the payment of pilotage dues in respect of any ship may, out of monies in his hands received on account of such ship, or belonging to the owner, retain the amount of all dues so paid by him, with reasonable expenses incurred by reason of such payment or liability. Ibid. s. 364. 170. The master's agreement for pilot- age services, not affected by collusion or fraud, would be as binding on the owner as if made in his own person. The Nel- son, 6 C. Eob. 227. 171. The report by the master of the ship to the owner that certain additional charges were due to the pilot (such charges not being allowable under the table of remuneration for pilot services annexed to the 6 Geo. 4, c. 125), held not to bar or conclude the owner from object- ing to such charges. The Adah, 2 Hagg. 332. 172. The 10*. 6d. a day to which a pilot is entitled by sect. 357 of the M. S. Act, 1854, if he is taken without his con- sent to sea or beyond the limits for which he is licensed, are not pilotage dues for which the shipbrokers are liable under sect. 363. Morteo v. Julian, 4 0. P. D. 216 ; 48 L. J. M. C. 126 ; 4 Asp. 166. (c) Recovery.* 173. Pilotage dues may be recovered like penalties of the like amount under this act ; such recovery shall not take place until a previous demand has been made in writing, and seven days after- wards. See M. S. Act, 1854 (c. 104), s. 363. 174. A pilot cannot sue for his wages earned in navigating a vessel into an enemy's port. It is tantamount to a trading with the enemy. The Benjamin Franklin, 6 C. Eob. 350. 175. The Board of Trade has power, by provisional order, in cases where the pilotage is not compulsory, and there is no restriction on the number of pilots, or on the power of duly-qualified persons to obtain licences as pilots, to give additional facilities for the recovery of pilotage rates. See M. S. Act Amendment Act, 1862 (c. 63), s. 39, sub-s. 7. 17. Responsibility of Qualified—. 1 . Generally. 176. If any qualified pilot commits any of the following offences: — (1) Keeps oris interested in keeping any public-house or place of public entertainment, or sells or is interested in selling any wine, spirituous liquors, tobacco, or tea ; (2) Commits any fraud or other offence against the reve- nues of customs or excise, or the laws re- lating thereto ; (8) Is directly or indirectly concerned in any corrupt practices relating 1877, No. 266 of 1878, No. 279 of 1881, No. 325 of 1882, No. 207 of 1883, No. 222 of 1884. (386) As to the different pilotage authorities and the pilotage returns applicable thereto, see tit. Owners, Pt. VII. pp. 1178, 1179. (38c) For powers to lower, modify, and raise those rates, see the Merchant Shipping Act Amendment Act, 1862 (c. 63), s. 39, the M. S. Act, 1872 (c. 73), and the annual P. Pilotage Eeturns to Parliament. * (39) To constitute pilotage a lien on the ship the contract must have been made by some person in the employment of the owner, duly authorized to make the contract, suet as the master or quasi-master. But mere wrongdoers or mutineers have no authority to bind the ship. The Anne, 1 Mason, 50b. [AMEKICAN.] 5 A 1450 PILOTS. 17. Responsibility of Qualified^-. to ships, their tackle, furniture, cargoes, crews or passengers, or to persons in dis- tress at sea or Tby shipwreck, or to their monies, goods or chattels ; (4) Lends his licence ; (5) Acts as pilot whilst sus- pended; (6) Acts as pilot when in a state of intoxication; (7) Employs or causes to be employed on hoard any ship of which he has the charge any boat, anchor, cable, or other store, matter or thing beyond what is necessary for the service of such, ship, with the intent to enhance the expenses of pilotage for his own gain or for the gain of another; (8) Eefuses or wilfully delays, when not prevented by illness or other reasonable cause, to take charge of any ship within the limits of his licence upon the signal for a pilot being made by such ship, or upon being required to do so by the master, owner, agent or consignee, or by any officer of the pilotage authority by whom such pilots is licensed, or by any principal officer of customs ; (9) Unneces- sarily cuts or slips or causes to be cut or slipped any cable belonging to any ship ; (10) Eefuses, on the request of the master, to conduct the ship in his charge into any port or place into which he is qualified to conduct the same, except on reasonable ground of danger to the ship ; (11) Quits the ship of which he has the charge, without the consent of the master, before the service for which he was hired has been performed ; penalty for breach (in addition to any liability for damages at the suit of tlie person aggrieved) not exceeding £100, and he is liable to sus- pension or dismissal. See M. 8. Act, 1854 (c. 104), s. 365. 177. Penalty for breach against every person who procures, abets or connives at the commission of any such offence (in addition to any liability for damages at the suit of the person aggrieved) not ex- ceeding £100, and, if a qualified pilot, he is liable to suspension or dismissal. Ibid. 178. If a pilot, under known circum- stances of danger, acts with reasonable care and prudence, he is not liable for damage that occurs notwithstanding. See Thompson v. The North Eastern Railway Co., 30 L. J. Q. B. 67 ; 6 L: T. N.8. 127. 179. It is an act of misconduct, and one which the court will take measures to punish, for a pilot to refuse to make an affidavit for a party to a salvage suit. The Prince of Wales, 6 Notes of Cases, 43* 2. False Representations affecting Safely of Ship. 180. If any person, by wilful misre- presentation of circumstances upon which the safety of a ship may depend, obtains or endeavours to obtain the charge of such ship, and every other person pro- curing, abetting, or conniving at the commission of such offence : penalty against him (in addition to any liabilities for damages at the suit of the party aggrieved), not exceeding £100; if the offender is a qualified pilot, he is also liable to suspension or dismissal. See M. 8. Act, 1854 (c. 104), s. 367. 3. Causing Damage to Ship or Person. 181. If any pilot in charge by wilful breach, or neglect of duty, or drunken- ness, does any act tending to the imme- diate loss, destruction, or serious damage of a ship of which he is in charge, or tending immediately to endanger the life or limb of any person on board ; or if any pilot by wilful breach of duty, or drunkenness, refuses or omits to do any lawful act, proper and requisite, to be done by him for preserving such ship * (40) At this time, affidavits were the usual mode of proof in salvage actions in the Court of Admiralty. (41) If a pilot undertakes the conduct of a vessel to bring her to St. Malo, or any other port, and fail of his duty therein, so as the vessel miscarry by reason of his ignorance in what he undertook, and the merchants sus- tain damage thereby, he shall be obliged to make full satisfaction for the same if he hath wherewithal, and if not, lose his head. Laws of Oleron, ch. 23. (42) For provisions that pilots quitting their ships in the Thames or Medway, with- out the consent of the officer in charge, before arrival at the place to which they are bound, are to forfeit their pilotago and im- posing penalty for breach, see 6 Geo. 4, c. 125, s. 42. (43) In France, a law of August, 1790, and a decree of December, 1806, which con- demned a pilot guilty of having lost a Bhtp by negligence or ignorance to three years at the galleys has not been repealed, but as the punishment of the galleys has been abolished, and in this particular case no alternative enacted, the fault of the pilot does not at the present time give rise to criminal proceedings. D. P. 1875, 1. 178. PILOTS. 19. Employment of Unqualified — . 1451 from loss, destruction, or serious damage, or for preserving any person belonging to or on board sucb snip from danger to life or limb, the pilot so offending shall for such offence be deemed guilty of a misdemeanour, and if a qualified pilot shall also be liable to suspension and dis- missal by the authority by which he is licensed. Ibid. s. 366. 4. To produce Copy, Rates, Bye-laivs, 8fc. 182. Every qualified pilot must, when required, produce to the master of any ship, or other person employing him, the copies furnished him on receiving his licence, of such part of this act as relate? to pilotage, and of the rates, bye-laws, and regulations established within the district for which he is licensed ; penalty for breach not exceeding £5. Ibid. s. 350. 5. Bond to Trinity House. 182a. Subject to alteration by the Trinity House, every Trinity House pilot on his appointment shall execute a bond for £100 conditioned for the due observ- ance on his part of the regulations and bye-laws of the Trinity House. Such bond is to be free from stamp duty, and from any other charge except the expense of preparing it. Ibid. s. 372. 6. Limitation. 1825. No qualified pilot who has exe- cuted the bond required to be given by him to the Trinity House, London, in £100 is liable for neglect or want of skill beyond its penalty, and the amount of pilotage payable to him in respect of the voyage on which he is engaged. Ibid. s. 373. 7. Collision. 182c. As to the respective duties of a pilot and the crew in order to avoid collision, see tit. Owners, Pt. Vil. pp. 1398—1411. 8. To report Loss of Anchors or Chains. 183. When anchors or cables are lost from any vessel, the pilot in charge is at once to report the occurrence in writing to the secretary of the Trinity House, London, specifying the place and time of the occurrence, the state of the weather, the direction of the wind, time of tide, quantity of cable riding by, whether the cable was slipped or parted, and the quantity lost; see Regulations of the Trinity House, London, of November, 1853, and July, 1862. 9. To report Collisions. 184. Where a ship in charge of a Trinity House, London, pilot comes into collision with another vessel he is to report the circumstances in writing to the Trinity House in the form prescribed. See the Regulations of that House of 28th October, 1853; see also No. Ill, p. 1442. 10. To report a touching of the Ground. 185. For similar directions when a vessel in his charge touches the ground, see Ibid. 18. Unqualified—. Generally. 186. Any qualified pilot acting beyond the limits of his licence is to be considered as an unqualified pilot. See M. S. Act, 1854 (c. 104), s. 349. 19. Employment of Unquali- fied—. 1. Generally. 187. An unqualified pilot may, in any pilotage district, without subjecting him- self or his employer to any penalty, take charge of a ship as pilot (1) when no qualified pilot has offered to take charge of her, or made a signal for that purpose; (2) when a ship is in distress, or in cir- cumstances making it necessary for the master to avail himself of the best assist- ance which can be found at the time ; or, (3) for the purpose of changing the moor- ings of any ship in port or of taking her into or out of any dock, in cases where such acts can be done by an unqualified pilot without infringing the regulations of the port, or the orders the harbour master is legally empowered to give. Ibid. s. 362. 2. Prevention. 188. The Board of Trade has power, by provisional order, in cases where the pilotage is not compulsory and there is no restriction on the number of pilots, or on the power of duly-qualified persons to obtain licences as pilots, to give addi- tional facilities for the prevention of the 5 a2 1452 PILOTS. 22. Recovery of Penalties. employment of unqualified pilots. See M. S. Act Amendment Act, 1862 (c. 63), s. 39, sub-s. 7. 3. By Possessors of Pilotage Certificates. See c. 15, p. 1446. 4. Supercession by qualified Pilots. See c. 16, p. 1447. SO. Remuneration of Unquali- fied—. 1 . Generally. 189. The act 3 Geo. 1, c. 13, fixing rates of pilotage, was limited to the par- ticular society of pilots, viz. Trinity pilots, therein described, who had the benefit of a monopoly under the provisions of that act, and the restrictions thereof were held to be taken as corresponding with the privileges conferred. Other pilots, therefore, engaged in the same naviga- tion only casually, when the privileged pilots were out of the way, held to be at liberty to make special agreements for higher compensation. Such an agree- ment pronounced for. The Nelson, 6 0, Eob. 227. 2. When superseded by Qualified — . See No. 158, p. 1447. 21. Responsibility of Unquali- fied—. Improper Use of Licence. 190. An unqualified pilot using a licence which he is not entitled to use for the purpose of making himself appear to be a qualified pilot ; penalty not exceed- ing £50. See M. S. Act, 1854 (c. 104), s. 361 ; see alsoNos. 177, 180, 181, supra. 22. Recovery of Penalties. 191. As to the mode of recovering the penalties, referred to in this title, see tit. Ownees, Pt. II. pp. 1254 and 1321. ( 1453 ) PRACTICE. PAET I. — COUBTS, JtTDOES, OfFICEES AND OFFICES. II. — In the Hiqh Couet. III. — In Paeticulab Actions. ■ IV. — In Infebiob Cotjbts. Part l.-COURTS, JUDGES, OFFICERS AND OFFICES, 1. Courts and Judges. 1. Generally p. 1465 2. Sittings. (a) Generally 1465 (b) In Vacation 1465 2. Trinity Masters 1466 8. Counsel. 1. Generally 1468 2. Employment of — (a) Generally 1469 (b) Number 1469 3. Eight to begin and Reply. See Pt. II. p. 1640. 4. Fees. See tit. " Costs," p. 384. 4. Officers. 1. Generally 1469 2. Registrar and Assistant Registrar . . 1470 3. District Registrars 1471 4. Examiners 1471 6. Marshal 1472 6. Commissioners to administer Oaths . . 1472 7. Court Shorthand Writers 1473 8. Solicitors. (a) Generally 1473 (b) Disclosure by — 1474 (o) Agreements. SeePt.II. p.1572. {A) Change of. See tit. " Costs, " p. 376. (e) Lien for Costs. Ibid., p. 374, and tit. " Lien," p. 820. (f) Costs of and against Solicitors. See tit. "Costs," pp. 342 and 376. 5. Offices. 1. Hours of Attendance and Holidays .. 1474 2. Central Office. (a) Generally 1474 (b) Filing of Documents 1475 (o) Office Copies 1475 (d) Registry of Admiralty Division. See next chapter. 6. Registry of Admiralty Division. 1. Generally 1476 2. Filing of Documents 1476 6. Registry of Admiralty Division— con t. 3. Minutes and Minute Rook p. 1476 4. Caveats. (a) Generally 1476 (b) Against Warrant. (aa) Generally 1477 (bb) Appearance 1477 (cc) Proceedings in Default of Appearance 1477 (n) Against Release. (aa) Generally 1477 (bb) Responsibility for — .... 1478 (d) Against Payment out of Moneys in Court 1478 (e) Withdrawal 1478 7. Court Fees, Percentages and Stamps 1478 8. Funds in Court 1478 9. Payment into Court. 1. Generally 1470 2. By Defendant 1481 3. By Plaintiff 1482 4. Tender before Action 1482 5. Freight 1482 6. To satisfy Lien 1482 1. Costs. See tit. " Costs," p. 347. 10. Payment out of Court. 1. Generally 1483 2. In Actions of Bottomry I486 3. In Actions of Collision I486 4. In Actions of Salvage I486 5. In Actions of Wages 1486 6. Costs. See tit. " Costs," p. 347. Part II -IN THE HIGH COURT, 1. Generally. 1. Since the Judicature Act, 1873 1486 2. Time 1488 3. Effect of Non-compliance with Rules....;.. 1488 4. Actions. 1. Generally 1*89 2. Precedence 1489 1454 PRACTICE. Pt. II. 4. Actions— i 3 (a) Generally . . p. 1489 (b) Collision Actions 1489 (o) Damage to Cargo Actions 1490 (d) Personal Injury Actions 1490 (e) Salvage Actions 1490 (f) Wages Actions 1490 4. In rem. (a) Generally 1490 (b) Bottomry Actions 1491 (o) Collision Actions , 1491 (d) Damage to Cargo Actions .... 1491 (e) Salvage Actions 1491 (f) Wages Actions 1491 6. In personam and In rem 1491 6. Commencement 1491 7. Amount 1492 8. Counter-claim or Set-off 1492 9. Amendment. (a) Generally 1494 (b) Plaintiffs 1494 10. Cross Action 1494 11. Second Action 1495 12. Joinder of Causes of Action 1496 13. Conduct of Action 1497 14. Transfer. See e. 15, p. 1536. 15. Consolidation. See c. 17, p. 1543. 16. Discontinuance. See o. 28, p. 1578. 17. Dismissal. See o. 29, p. 1579. 18. Abatement and Revival. See c. 30, p. 1580. 19. Estoppel. See o. 31, p. 1581. 6. Precedence of Actions 1497 6. Parties. 1. Generally 1498 2. Prior Petens 1498 3. Plaintiffs 1498 4. Defendants 1498 5. Joinder of— 1499 6. Third Parties. (a) Generally 1500 (b) Interveners before the Judicature Acts and Pules 1500 (c) On Marriage, Death, Bank- ruptcy, $a 1501 (d) In Salvage Actions. See s. 24, p. 1507. 7. British and Foreign Government Ships 1501 8. Corporations and Companies 1502 9. Co-partners 1502 10. Several with one Interest 1502 11. Trustees, Executors and Adminis- trators 1502 12. Assignees 1502 13. Charterers 1503 14. Mortgagees 1503 15. Underwriters , 1504 16. Minors, lunatics and Married Women 1505 17. Sureties , 1506 18. Paupers 150g 19. Foreigners , _ 1505 20. Deceased without Representative .... 1506 21. In Bottomry Actions , , 1506 6. Parties — continued. 22. In Collision Actions p. 1506 23. In Marine Insurance Actions. See tit. " Mabotb Insueanoe," p. 1100. 24. In Salvage Actions , 1507 25. In Wages Actions 1507 7. Paupers 1507 8. Writs of Summons. 1. Generally ,, , 1508 2. In personam , , , , 1509 3. In rem 1510 4. Indorsement. (al Generally 1510 (b) Special 1510 (e) Debt or Liquidated Demand .... 1510 (d) Name and Address of Plaintiff and his Solicitor 1510 5. Out of Jurisdiction. (a) Generally 1611 (b) Third Parties 1511 6. From District Registry. {&) Generally 1511 (b) Indorsement of Name and Ad- dress of Plaintiff and his Soli- citor 1512 7. Amendment , . 1512 8. Concurrent. (a) Generally 1512 (b) Within and without the Jurisdic- tion 1512 9. Renewed — 1513 10. Dost— 1513 11. Service 1513 12. Motion to set aside Service. (a) Generally ,..., 1513 (b) Previous Practice 1513 13. Costs of Improper Forms. See tit. " Costb," p. 347. 0. Proceedings other than by Writ. 1 . Generally ,...., 1514 2. Against Third Parties 1515 10. Disclosure by Solicitors and Plaintiffs 1515 11. Warrants of Arrest. 1. Generally . , 1515 2. Affidavit to lead — (a) Generally 1517 (b) In Actions of Bottomry 1517 (e) In Actions of Possession 1617 (d) In Actions of Restraint 1517 (e) In Actions for Distribution of Salvage 1517 (f ) In Actions of Wages 1517 3. After Caveat Warrant 1518 4. Mode of obtaining — 1518 5. Property liable. (a) Generally 1518 (b) Personal Baggage 1518 ' Cargo 1519 Freight. (aa) Generally 1519 (bb) In Collision Actions .... 1519 (oc) In Wages Actions 1519 PRACTICE. Pt. II. 1455 11. Warrants of Arrest— continued.' 6. As against Sheriff p. 1520 7. Service 1520 8. Filing after Service 1520 9. Priority over other Liens 1520 10. Removal of arrested Property 1520 11. Rescue 1621 12. Amendment 1522 13. Re-arrest , 1522 14. In Bottomry Actions , 1523 16. In Collision Actions .... 1523 16. In Salvage Actions 1524 17. Costs and Damages for Improper Arrest. See tit. " Costs," p. 369. 12. Service. 1. Generally , 1624 2. On what Days 1524 3. Time of Bay 1524 4. Within what Period 1524 6. Writ of Summons. (a) Generally 1524 T>) On Partners 1625 0) On Corporations or Societies,, , , 1526 d) On Husband, Wife, Infants and Lunatics , 1525 (el On Third Parties 1625 (i ) Solicitors undertaking to accept.. 1625 Substituted Service 1525 Out of Jurisdiction 1525 In Scotland or Ireland 1526 i') Endorsement of Service , 1526 , :) Affidavit of Service 1526 6. Writ of Summons in rem. (a) Generally , , 1527 (b) Affidavit of Service 1627 10) On Ship, Cargo and Freight . . 1627 fa) Against Proceeds in Registry . , 1527 (e) Amended Writs 1527 (f) Solicitors undertaking to accept 1527 Service and give Sail 1627 7. Warrants. (a) Generally 1527 (b) Releases 1529 8. Originating Summons 1529 9. Orders and Judgments 1529 10. Attachments 1629 11. Subpoenas. (a) Generally 1630 (b) In Scotland or Ireland 1530 (0) Within what Time 1530 (d) Affidavit of Service 1630 12. Of other Documents requiring Personal Service. {a.) Generally 4 1530 (b) Substituted Service 1530 13. Of Documents not requiring Personal Service. (a) Generally 1530 lb) Third Parties 1530 (0) Appearance by Solicitor after Personal Appearance 1631 14. Petitions 1531 15. Summonses. (a) Generally 1531 (b) Affidavit of Service 1531 16. Pleadings 1531 12. Service — continued. 17. Notices. (a) Generally p. 1531 (b) Of Pail 1532 fc) Of Trial 1532 (d) From the Supreme Court 1532 (e) Under the M. S. Acts, 1854 and 1876. See tit. "Owkees," Pt. II. p. 1253. 18. Amended Documents 1532 19. Affidavits 1532 13. Appearance. 1. Generally 2. In Central Office 3. In District Registry 4. Notice of — , 5. Under Protest 6. Out of Time 7. Third Parties or Interveners 8. Effect of Non-appearance. (a) Generally , (b) After Undertaking (0) After Entry of Caveat Warrant . (d) Third Parties (e) In Actions of Account 14. Prior Petens 1532 1533 1534 1534 1534 1534 1534 1535 1535 1535 1535 1535 1536 15. Transfer of Actions. 1. Generally , 1536 2. From London to District Registry ,,, , 1537 3. From District Registry to London ... . 1537 4. From another Division to Admiralty Division 1538 6. From Admiralty Division to another Division 1638 6. From High Court to County Court . . 1638 7. From Admiralty County Courts to Admiralty Division ...... . ■ 1540 8. From Admiralty County Courts to other County Courts 1540 9. From Admiralty County Courts to Cinque Ports Court of Admiralty . . 1540 10. From County Court to Sigh Court ,. 1541 11. Retransfer 1541 12. Precedence 1541 16. Restrictions on Actions in Superior Courts. 1. Generally 1541 2. Costs and Damages. See tit. "Costs," p. 371. 3. Leave to proceed in Admiralty Division. (a) Generally 1541 (b) Costs 1543 4. Rescinding of Leave 1543 5. Certificate for Costs. (a) Of Aetionsin Admiralty Division. See tit. "Costs," p. 350. (b) Of Actions under Admiralty Court Act, 1861, c. 10. See tit. "Costs," p. 354. (c) Of Salvage Actions under M. S. Acts. See tit. "Costs," pp. 352, 353. 1456 practice. Tt. ir: 17. Consolidation of Actions. 1. Generally P- 1543 2. In Bottomry Actions 15*3 3. In Collision Actions 1543 4. In Marine Insurance Actions 1544 6. In Salvage Actions. (a) Generally 15*4 (b) One Party dissenting 1544 6. In Wages Actions 1544 "7: Costs. See tit. " CosiS," p. 349. 18. Proceedings in Consolidated Actions. 1. Generally 1544 2. Order of Reference 1544 3. Severance of Consolidation 1544 19. Bail. 1. Generally 1545 2. Justification. (a) Generally 1546 (b) Cross-examination 1547 3. By more than two Sureties 1547 4. Before whom taken 1547 6. Before a Commissioner to administer Oaths 1547 (a) Notice of Bail and Affidavit of " • Service . . <. 1547 (b) Filing of Bail Bond, Notice and Affidavits 1547 6. By Commission 1548 7. In the Registry of. the Admiralty Division 1548 8. To Counter-claims, or in Cross Actions 1548 9. Freight 1549 10. Security for Costs 1549 11. Sufficiency 1549 12. Objections to— 1549 13. Excessive . v 1560 14. Reduction 1550 15. Amendment 1550 16. Ameliorations 1550 17. Rights and Liabilities 1550 18. Discharge , , 1552 19. Commission paid to Sureties 1553 20. By Mortgagee 1554 21. In Actions of Bottomry 1554 22. In Actions of Collision 1554 23. In Actions of Possession 1654 24. In Actions of Restraint 1555 25. In Actions of Salvage. (a) Generally , 1555 (b) Before Receivers of Wreck .... 1555 26. By Plaintiff m Wages Actions 1655 27. Under the Foreign Enlistment Act . . 1656 28. To answer latent Demands , 1556 20. Release. 1. Generally 1556 2. Freight and Cargo 1557 3. Mode of obtaining — 1557 4. Possession Fees 1558 5. Obedience to — 1558 6. Caveat Release ., , ,., 1668 20. Release— continued. 7. Mortgagee's right to — p. 1569 8. In Actions of. Possession 1559 9. In Actions of Salvage , 1559 21. Proceedings by and against Third Parties 1560 22. Proceedings by Default. 1. Generally 1561 2. Old Practice 1562 3. Against Infants and Persons of un- sound Mind 1562 4. For want of Statement of Claim or Defence ~. .' 1662 5. For want of Reply or Subsequent Pleading 1563 6. For want of Delivery of Pleading in' Issues ...., 1563 7. Setting aside of Judgment 1563 8., In rem. (a) Generally 1563 (b) After Caveat Warrant and Non- appearance. See Pt. I. p. 1477 (0) Pleadings and Proofs 1664 (d) Notice of Trial 1564 (e) Printing 1664 (f ) Hearing , 1564 fg) Old Practice 1664 (h) Sale 1565 (i) Iri District Registries 1665 (j) In Actions of Bottomry 1566 (k) In Actions of Mortgage 1566 (1) In Actions of Co-owners. (aa) Order of Sale 1566 (m) In Actions of Possession ; 1666 9. Costs. See tit. " Costs," p. 360. 23. Proceedings in District Regis- tries. 1. Generally , 1666 2. District Registrars , 1567 3. Offices 1567 4. Forms , 1567 5; Warrants and Cavtat Warrants .... 1568 6. Amendment of Writs 1568 7. Appearances. See 0. 13, s. 3, p. 1534. 8. As dependent on Appearance 1668 9. Removal to London ; 1568 10'. Removal from London 1568 111 By Default 1538 12. Application to District Registrar..... 1568 13. Appeal or Reference from District - Registrar to Judge 1568 14. Filing of JJtcuments 1569 15. Entries of Judgments , 1569 16. References. See c. 40, p. 1658. 17. Writs of Execution 1559 18. Taxation of Costs. See tit. ".Costs," p. 382. 19; Funds' in Court 1569 20. Fees and Stamps ; ; 1669 24. Interlocutory Proceedings. 1. Generally 1569 2. Amendment ....,..,,..... I66 9 PRACTICE. Pt. IP. 1457 24. Interlocutory Proceedings — continued. 3, Particular) of Demand p. 1570 4. Security for Costs 1570 6. Inquiries 1571 6. Accounts under Directions. (a) Generally 1571 (b) The Account 1571 (c) The Surcharge 1671 (d) Proceedings in ease of Delay .. 1571 7. Solicitor's Agreements 1572 (a) Generally 1572 (b) Entry for Argument 1573 ■ (o) Agreement for Payment of Money . and Costs 1573 Id.) Signatures and Filing 1673 '(e) Printing 1573 ' \t)' Copies for Judges ... 1573 • ■ (g) Rearing 1573 9. Motions. (a) Generally 1573 (b) Notice of— 1574 10. Summons for Directions 1574 11. Summons 1575 12. Judgment under Ord. XIV. 1675 13: Costs. See tit. "Costs," p. 347. 25. Summons. 1. Generally 1575 2. Powers of Registrar 1576 3. Forms 1576 4. Originating Summons. See c. 9, p. 1514. 5. For Directions. See o. 24, p. 1574. 6. Service. See o. 12, s. 15, p. 1531. 7. Alteration 1576 8. Proofs 1576 9. Searing 1576 10. Adjournment of Hearing 1576 11. Hearing in Default of Attendance .. 1576 12. Re-hearing of, after Order by Default 1676 13. Appeal from Judge in Chambers .... 1577 14. Costs 1677 26. Subpoenas. See o. 35, p. 1630. 27. Notices or Praecipes. 1. Generally 1577 2. Service 1578 3. Of Action 1678 28. Discontinuance. 1. Generally 1678 2, Costs 1579 29. Dismissal 1679 30. Abatement and Revival. 1. Generally 1680 2. Pleading 1681 8. In Bottomry Actions 1681 4. In Wages Actions ,..,,.... 1681 fi. Costs. See tit. " Costs," p. 350. 31. Estoppel. 1. Generally p. 1581 2. Lis alibi Pendens 1582 3. Res Judicata 1582 .4. Injunction and Prohibition. • (a) Generally ..' 1582 (b) To Inferior Courts and Officers .. 1582 5. Stay of Proceedings. (a) Generally 1582 (b) For want of Disclosure by Plain- tiff's Solicitors 1583 6. Delay. (a) Generally 1583 (b) Twelvemonth's Lapse 1583 7. By want of Pleading 1583 8. After Discontinuance without Payment of Costs 1683 Effect of Discontinuance on Counter- claim 1584 After Submission to Arbitration .... 1684 In Salvage Actions 1584 In Wages Actions 1585 9. 10. 11. 12. 32. Tender. 1. Generally 1586 2. In Collision Actions 1587 3. In Salvage Actions 1587 4. In Wages Actions 1588 5. Costs 1589 33. Preliminary Acts. 1. Generally 1589 2. Amendment 1589 3. Evidence. See tit. "Evtdemoe," p. 453. 34. Pleadings. 1. Generally 2. Variance from Proofs 3. Signature by Counsel 4. Statement of Claim 6. Particulars of Demand. See c. 24, p. 1670. 6. Statement of Defence and Counter-claim. (a) 'Statement of Defence (b) Counter-claim 7. Reply and Subsequent Pleadings .... 8. Third Parties 9 . Joinder of Issue and Close of Pleadings 10. Under Rules and Orders of 1859. (a) Generally (b) Petition (o) Answer (d) Subsequent Pleadings (e) Double Pleading (f ) Charges not pleaded (g) Variance from Proofs (h) Short of Proofs 11. Pules prior to 1869 12. Admissions by — . (a) Generally (b) Confession of Defence 13. Proceedings by Default. (a) Generally (b) Filing 14. Proceedings in lieu of Demurrer .... 1690 1592 1592 1592 1593 1595 1595 1596 1596 1597 1597 1597 1598 1598 1599 1600 1601 1602 1602 1602 1602 1602 1602 1458 PRACTICE. Pt. II. 84. Pleadings— continued. 15. Proceedings to set aside- Service of Writ. (a) Generally p. 1603 (b) Previous Practice , 1603 16. Amendment. (a) Generally 1603 (b) Mode 1604 (c) Time 1604 (d) Statement of Claim. 1 604 (e) Counter -claim or Set-off 1604 (f) Pleadings in Answer 1 604 (g) Objection to 1604 (h) Prior to Judicature Acts and Rules 1605 17. Issues. (a) Generally 1605 (b) Third Parties 1605 (o) Joinder of — 1605 18. Special Case. See o. 24, p. 1572. 19. Questions of 'Fact agreed to be decided .. 1605 20. Cross Actions 1605 21. Interpleaders. See o. 43, p. 1667. 22. In Bottomry Actions. (a) Before the Judicature Acts and Mules 1605 23. In Collision Actions. (a) Generally 1606 (b) Before the Judicature Acts and Pules. (aa) Generally 1607 (bb) By Plaintiffs 1607 (oo) By Defendants 1610 24. In Damage to Cargo Actions. (a) Generally 1612 (b) Before the Judicature Acts and' Pules 1612 25. In Marine Insurance Actions. See tit. " Mabine Insubancb," p. 1102. 26. In Actions for Necessaries, Repairs and Supplies. (a) Before the Judicature Acts and Pules 1612 27. In limitation of liability Actions ., 1613 28. In Possession Actions. (a) Before the Judicature Acts and Pules 1614 29. In Salvage Actions. (a) Generally 1614 (b) Before the Judicature Acts and Pules 1614 30. In Wages Actions. (a) Generally 1614 (b) Before the Judicature Acts and Pules 1615 31. Delivery. See o. 12, p. 1531. 32. Printing. See o. 37, p. 1632. 33. Costs. See tit. "Costs,"" p. 348. 35. Proofs. 1. View. See tit. "Evidence," p. 424. 2. Foreign Law. Ibid. p. 423. 3. Declaration of Agent 1616 4. Beyond Pleadings. See o. 34, p. 1601. 5. Variance from Pleadings. Ibid. pp. 1592, 1600. 6. Answers. See tit. " Evidence," p. 429. 7. In Cross Actions. See s. 20, p. 1605. 8. In Actions by Default in rem 1616 35. Proofs — continued. 9. Evidence in Particular Actions. See tit. " Evidence," pp. 443—462. 10. Evidence after Trial. See s. 30, p. 1626. 11. Jkterragatories p. 1616 12. Documentary Evidence 1617 13. Discovery , , 1617 14. Production 1617 15. Enforcing Production of Documents before Trial. See tit. "Evidence," p. 426. 16. Inspection 1617 17. Notices to admit 1618 18. Notices to produce 1618 19. Notice to admit Pacts 1618 20. Admissions 1618 21. Admission of Facts . 1618 22. Admissions in Pleadings. See o. 34, p. 1602. 23. Copies of Documents 1618 24. Admission of Proofs from other Actions 1619 25. Witnesses. (a) Generally. See tit. "Evi- dence," p. 420. (b) Competency. Ibid. p. 421. (c) Nautical Experts. Ibid. (d) Depositions not to be found. Ibid. p. 422. (e) Examination of Witnesses in one part of S.M.'s Dominions in Proceedings in another part. Ibid. (f) Examinations, of Witnesses in S.M.'s Dominions in Proceed- ings in Foreign Courts. Ibid. (g) Contradicting. Ibid. p. 421. (h) Convictions for Felony or Misde- meanours. Ibid. p. 422. (i) Compelling Attendance of—. (aa) By Order. See s. 28, p. 1624. (bb) By Subpoena. See s. 32, p. 1630. (k) Costs of, or against — . See tit. "Costs," p. 416. 26. Examination of Witnesses before Trial 1620 27. Examination of Witnesses in Court be- fore Trial 1620 28. Examination of Witnesses out of Court before Trial. (a) Generally 1620 (b) By Commission 1621 (c) By Examiners, §c. (aa) Generally 1622 (bb) Supply of Writ and Plead- ings to Examiner ...... 1623 (cc) In Shorthand 1623 (dd) By Narration in the First Person 1623 (ee) By Interpretation 1624 fff) Objections to Questions.... 1624 (gg) Objections by Witness ... . 1624 (hh) Orders enforcing Obedience of Witness 1624 (ii) Transmission of Depositions 1625 (kk) Examiner's Report 1625 (11) Examiner's Fees 1625 (mm) Before the Judicature Act 1626 PRACTICE. Pt. II. 1450 85. Proofs — continued. 29. Examination of Witnesses at Trial. See o. 38, p. 1637. 30. ExaminationofWitnessesafterTrialj). 1626 31. Affidavits. i(a) Generally 1626 (b) Preparation 1626 (o) Scandalous or Irrelevant Matter. 1627 (d) Interlineations and Alterations . 1627 (e) Swearing. aa) Generally 1627 bb) Exhibits 1627 oo) Jurats 1627 dd) Illiterate or Blind Persons 1628 ee) Oaths. See s. 33, p. 1631. (i) Cross-examination 1628 (g) Filing— 1628 (h) Stamps 1628 (i) Proof by— . (aa) Generally 1628 (bb) In Default Actions 1629 (j) Trial by— . (aa) Generally 1629 (bb) Time of Delivery 1629 (oc) Terms of Admission of Affi- davits at Trial. See o. 38, p. 1641. (k) Use of Original. (aa) Generally 1629 (bb) In Chambers 1629 (oo) Use of Office Copies 1629 (1) Copies. See s. 23, p. 1618. 32. Subpoenas. (a) Generally 1630 (b) Praecipe 1630 (o) Forms 1630 (d) Period in Force 1630 (e) Amendment 1630 li) Service. See o. 12, p. 1530. (g) For Examination of Witnesses before Trial 1630 (h) In Interpleader Issues 1630 33. Oaths. fa,) Generally 1631 (b) Affirmations and Declarations . , 1631 (o) Out of England 1631 (d) Mouse of Lords 1632 (e) Privy Council 1632 (f) Court of Appeal 1632 36. View 1632 37. Printing. 1. Generally 1632 2. Paper, Type, and Margin 1633 3. Of what Documents. (a) Genet-ally i .... 1633 (b) By whom 1633 (ol Office Copies 1633 (d) Copies and Price 1633 (e) Credit of Copies to Client 1633 if) Numbering and Marking of Folios 1633 (g) Note of Filing 1634 (h) Expenses 1634 38. Trial. 1. Generally 1634 2. Directions for — . (a) Third Parties 1634 3. Appointment of— 1634 4. Notice of—. (a) Generally 1634 (b) By Affidavit 1635 38. Trial — continued. 5. Entry for — p. 1635 6. Place of— 1636 7. Admission of Evidence taken before Trial 1636 8. With or without Jury 1636 9. With Assessor: (a) Generally 1637 (b) Trinity Masters 1637 10. When one Party does not appear .... 1637 11. Examination of Witnesses in Court. (a) Generally 1637 (b) Evidence taken down by Short- hand Writer 1637 (o) Disallowance of Irrelevant and Vexatious Questions 1638 (d) Use of Answers to Interroga- tories 1638 12. Notes of Commencement and Termina- tion 1638 13. Special Case 1638 14. Questions of Law 1639 15. Issues. (a) Generally 1639 (b) Third Parties 1639 16. Questions of Facts agreed to be decided 1639 17. By Referees. See o. 41, p. 1658. 18. Counsel. (a,) Generally 1640 (bj In Consolidated Actions , 1640 (c) Eight to begin and Reply. (aa) Generally 1640 (bb) In Bottomry Actions .... 1640 (oo) In Collision Actions 1640 (dd) In Salvage Actions 1641 (ee) In the Privy Council. See tit. " Appeals," p. 29. .. 19. By Affidavit. (a) Generally 1641 20. Of Cross Actions 1641 21. Postponement or Adjournment. (a) Generally 1641 (b) Before Trial commenced ] 641 (o) After Trial commenced 1642 22. Evidence in Proceedings after Trial. See o. 35, p. 1626. 23. New Trial or Re-hearing 1642 24. Costs. See tit. "Costs," p. 342. 89. Judgments and Orders. [Judgments.] 1. Generally. 1642 2. Motion for — . (a) Generally 1643 (b) Notice of— 1643 3. Entry of—. (a) Generally 1643 fb) Date of 1644 (o) For want of Statement of Claim or Defence 1644 (d) In Actions in rem by Default . . 1644 (e) In Actions for Accounts 1644 (f) In Actions under Directions .... 1644 (g) Third Parties not appearing . . 1644 4. On Counter-claim or Set-off 1644 5. On Confession of Defence ■ , 1644 6. By Consent 1644 1460 PRACTICE. Pt. II. 39. Judgments and Orders— continued. [Jotoments] — continued. 7. Third Parties p. 1644 8. In Proceedings by Default 1644 9. In Actions in- rem- without Pleadings in Defence 1644 10. Obtained by Prior Petens — effect of — . 1645 11. On Foreign Judgments. See tit. "Ju- EtSDICTIOlfj" p. 661. 12. Enforcement of—. , (a) Generally 1645 (b) Against Corporations 1645 13. Alteration of— 1645 14. Rescinding of — 1646 15. Dismissing Action. See c. 29, p. 1579. 16. On Issues. See o. 38, p. 1639. 17. On Admissions of Evidence 1646 18. On Admissions of Fact 1646 19. On Condition 1646 20: In Proceedings in District Registries . 1646 21 . For Injunction or Receiver 1646 22. For Payment of Money or Delivery or Transfer of Property 1646 23. For Inquiries or Accounts. See o. 24, p. 1571. 24. Rules Nisi and Orders to show Cause . 1647 25. Enforcement of— 1647 [Obdeeb.] 26. Generally 1647 27. Date 1647 28.' Note of— 1647 29. On Petition 1647 30. Solicitor's Agreements 1647 31. Malting Submissions or Awards Rules of Court 1647 32. Charging Stocks or Shares and Stop Orders 1647 33. Payment of Money under lien 1647 34. Order of Execution on Conditional Order taking effect. See o. 43, p. 1660. 35. For Inspection, Interim Preservation, Custody, and Sale of Property .... 1648 36. Mandamus, Injunction, or Receiver . . 1648 37. As to Costs only 1648 38. In Chambers. (a) Proceedings to set aside — 1648 39. Orders or Decrees of Sale. See o. 44, p. 1667. 40. Registrar's Certificate as to Deposit Security 1648 40. References. 1. Generally 1648 2. In Proceedings by Default 1650 3. On what Subjects , , , , 1650 4. Where dispensed with 1651 5. Claim and Proofs. "(a) Generally 1651 '"'(b) In Actions of Bottomry 1652 (o) In Actions of Damage to Cargo . 1662 (d) In Actions of Damage by Colli- sion 1652 ..(e) In Actions of Masters' Accounts, 1662 40. References— continued. 6. Interrogatories p. 1663 7. Counter-claim ; 1663 8. Counter-proofs , . , 1653 9. Further Proofs 1663 10: Notice of Hearing 1653 11. Searing 1663 12. Adjournment , 1664 13. Special Case 1654 14. Report 1655 15. Filing of Report . . 1655 16. Costs and Damages 1655 17. Costs 1665 18. Objections to Report. (a) Generally ' 1656 fb) Notice of Objection 1656 (o) Petition in Objection 1650 Id.) Pleadings and Proof 1666 (e) Further Evidence. (aa) Generally 1666 (bb) Applications to admit ... . 1657 (f) Burthen of Proof 1657 (g) Second Reference 1657 (h) Costs. See tit. "Costs," p. 362. 19. Measure of Damages. Seetit. "Re- gistrar and Merchants," p. 1715. 20. Awards of Registrar and Merchants . 1658 21 . Official or Special Referees 1658 22. District Registrars 1658 41. Official Referees 1658 42. Arbitrations. 1. Generally 1659 2. Forms 1659 43. Writs of Execution. 1. Generally 1659 2. Order of Execution on Conditional Or- der taking Effect 1660 3. For or against Third Parties 1660 4. Against Corporations . 1660 6. Against a Firm 1660 6. Liability of Ship. (a) For Orders against Owner or Master ' 1660 7. When issuable 16 61 8. Applications for Leave to issue. (a) In Special Cases 1661 9. Separate Writs. (a) For Money and Costs 1661 10. Stayof— 1661 11. Forms 1661 12. Date and Teste 1661 13. Endorsement 1661 14. Taking out. ' . (a) Generally 66 j (b) Notice or Praecipe ■ ■ • 10M 15. Levy - IMS! al Generally 6 b) Interest »» (o) Poundage Fees and Expenses.... w» 16. Mow long m Force 166! 17. Renewal ' •• 1662 18. Notice to Sheriff to return— .....•• 1668 PRACTICE. Pt. III. 1461 43. "Writs of Execution — continued. 19. Discovery in aid p. 1663 20. Enforcing Obedience to Acts ordered to be done 1663 21. In Actions of Possession 1663 22. On Finding of Issues. See u. 38, p. 1639. 23. Fieri Facias. (a) Generally ; 1663 24. Attachment. (a) Generally 1664 (b) Application for — 1664 (e) Forms 1664 (d) In the Court of Admiralty. (aa) Generally 1664 (bb) Against Bail 1665 (cc) Discharge 1 665 25. Attachment of Debts ... 1666 26. Orders of Commitment. (a) Under Debtors Act 1666 27. Sequestration 1666 28. Mandamus, Injunction, or Receiver . . 1666 29. Delivery 1666 30. Charging Orders, Distringas and Stop Orders 1666 SI. Interpleaders , 1667 44. Appraisement and Sale. 1. Generally 1667 2. Commission of—. (a) Generally 1668 (b) Execution of — 1668 3. When Biddings below Appraised Value 1670 4. Leave to bid 1670 5. Payment of Proceeds into Court 1670 6. Atcount Sales. (a) Generally 1670 (b) Taxation 1670 7. Appraisement. (a) Generally 1671 (b) By Receiver of Wreck 1672 (c) Commission of — 1673 (d) Costs of such Commissions in Sal- vage Actions. See tit. " Costs, ' ' p. 411. 8.' Sale. (a) Generally 1673 (b) Perishable Property. (aa) Generally 1673 (bb) By Receiver of Wreck 1674 (cc) Property of Small Value . . 1674 (c) In Actions between Co-owners. See tit. " Owiraus," Pt. VIII. p. 1423. (d) Ships or Shares of Unqualified Owners. Ibid. p. 1204. (e) ByForeignCourls. Ibid. p. 1218. (f) By Receiver of Wreck 1674 (gf) By Owners and their Agents. See tit. " Owsebb," Pt. I. p. 1214. (h) By Certificates of Sale. Ibid. p. 1202. ft) By Masters Abroad. Ibid. p. 1220. (j) Ameliorations 1674 9. Commission of Unlivery 1674 10. Commission of Removal 1674 45. Laches. See tit. "Laches," p. 800. 48. Priority of Liens. See tit. " Liens," p. 807. 47. Costs and Damages p. 1674 48. Security for Costs. See tit. " Costs," p. 363. 49. Taxation of Costs. Ibid. p. 378. 50. Costs. Ibid. p. 343. 51. On Appeal. 1. To the Souse of lords. See tit. "Ap- peals," pp. 18-24. 2. To the Privy Council. Ibid. pp. 24— 51. 3. To the Court of Appeal. Ibid. pp. 51-55. 4. To the Probate, Divorce and Admiralty Division. See tit. " Shipping Casualties Investioations." 5. To the Admiralty Branch of Ditto. See tit. " Appbais," pp. 56-59. 6. From British Consular Courts Abroad. See tit. " JuBisaionoN," pp. 773- 776. 7. Appeal no stay 1675 8. Application for stay 1675 9. Costs. See tit. " Costs," p. 390. Part lil. — IN PARTICULAR ACTIONS. 1. Bottomry Actions. 1. Generally 1675 2. In rem. See Pt. II. p. 1491. 3. Parties 1675 4. Arrest. (a) Generally 1676 (b) Affidavit to lead. See Pt. II. p. 1517. (c) Before Bond due 1676 a. Consolidation. See Pt. II. p. 1543. 6. Bail. Ibid. p. 1554. 7. Proceedings in rem by Default. Ibid. p. 1566. 8. Abatement and Revival. Ibid. p. 1581. 9. Liens. (a) Payment of prior Claim under Order of Court 1677 (b) Priority 1677 10. Prior Petens. See Pt. II. p. 1536. 11. Pleadings. Ibid. p. 1605. 12. Evidence. See tit. " Evidence," p. 443. 13. Hearing. (a) Right to begin. See Pt. II. p. 1640. (b) Production of Original Bond . . 1677 14. Judgments 1677 15. References 1678 16. Payment 1678 17. Laches. See tit. " Laches," p. 802. 18. Costs. See tit. " Costs," p. 398. 2. Collision Actions. 1. Generally 1678 2. In personam, SeePt. II. p. 1489. 1462 PRACTICE. Pt. III. 2. Collision Actions— continued. 3. In rem. (a) Generally. See Pt. II. p. 1491. (b) Ship, Freight, and Cargo.... p. 1678 (o) British and Foreign Government Vessels. See tit. "Jubisdic- tion," p. 668. 4. Cross Actions and Comiter-elaims. See Pt. II. p. 1492. 5." Amendment and Consolidation of Actions. Ibid. pp. 1494, 1543. 6. Parties. (a) Generally 1679 7. Proceedings against Foreign Vessels wider M. S. Act, 1854. See Pt. II. p. 1523. 8. Proceedings against Master and Part Owner without Limit of Liability . . 1679 9. Bail. See Pt. II. p. 1554. 10. Tender. Ibid. p. 1587. 11. Preliminary Acts. Ibid. p. 1589. 12. Pleadings. Ibid. p. 1606. 13. Evidence. See tit. "Evidence," p. 447. 14. Trial. (a) Bight to begin. See Pt. II. p. 1640. 15. Judgments 1680 16. Beferences 1680 17. Payment out of Court. See Pt. I. p. 1486. 18. Payment from Funds in Court in an- other Action 1680 19. Measure of Damages. See tit. " Re- GISTBAK AND MERCHANTS," p. 1715. 20. Subsequent Salvage Action ,, 1680 21. Laches. See tit. "Laches," p. 803. 22. Costs. See tit. " Costs," p. 400. 3. Damage to Cargo Actions. 1. Generally 1680 2. In personam. See Pt. II. p. 1490. 3. In rem. Ibid. p. 1491. 4. Particulars of Demand. Ibid. p. 1570. 5. Preliminary Acts. Ibid. p. 1589. 6. Pleadings. Ibid. p. 1612. 7. Proofs 1681 8. Beferences. See Pt. II. p. 1652. 9. Measure of Damages. See tit. " Re- GISTRAE AND MeBCHANTS," p. 1715. 10. Priority of Liens 1681 11. Costs. See tit. " Costs," p. 400. 4. Actions for Loss of . Life or Personal Injury. 1. Generally . . , 1681 2. In relation to Board of Trade En- ■ guiries .1681 3. .Limitation of Liability 1682 5. Actions of Marine Insurance ... . 1682 6. Actions of Removal of Master , . 1682 7. Actions of Master's Accounts .... 1682 8. Actions of Mortgage . , i m i ■ • . p. 9. Actions for Necessaries, Repairs and Supplies. 1. Generally ,.,, 1682 2. Transfer 1683 3. Pleadings. See Pt. II. p. 1612. 4. Evidence. See tit. " Evidence," p. 456. 5. Costs. See tit. " Costs," p. 405. 10. Actions of Limitation of Lia- bility of Owners. 1. Generally , 1683 2. Stay of other Actions. See tit. "Owebs," Pt. VI. pp. 1342, 1343. 3. Bail 1684 4. Security for Costs. See tit. "Costs," p. 365. 5. Pleadings. See Pt. II. p. 1613. 6. Evidence 1685 7. Interest. See tit. " Costs," p. 403. 8. Costs. Ibid. 11. Actions of Possession. 1. Generally 1685 2. By Foreigners. (a) Generally. See tit. "Owmebs," Pt. VIII. p. 1182. (b) Notice to Consul. Ibid. 3. Arrest. (a} Generally. See Pt. II. p. 1517. (b) Affidavit to lead Warrant. Ibid. 4. Bail. Ibid. p. 1554. 5. Belease. Ibid. 1559. 6. Security for Costs. See tit. " Costs," p. 365. 7. Proceedings by Default. See Pt. II. p. 1566. 8. Pleadings. Ibid. p. 1614. 9. Evidence. See tit. " Evidence," p. 457. 10. Writs of Execution. See Pt. II. p. 1663. 11. Laches. See tit. "Laches," p. 804. 12. Costs. See tit. "Costs," p. 406. 12. Actions of Restraint. 1. Generally,, , 1686 2. Warrants of Arrest. (a) Affidavit to lead — . See Pt. II. p. 1517. 3. Bail. Ibid. p. 1555. 13. Actions between Part-Owners. 1. Generally 1686 14. Actions of Pilotage 1687 15. In Actions of Salvage. 1. Generally ;.. 1688 2. By Officers and Crews of H.M.'s Ships Abroad 1688 3. In personam 1689 4. In rem. (a) Generally. See Pt. II. p. 1491. (b) Ship 1689 c) Freight 1689 (d) Cargo 1689 PRACTICE. Pt. III. 1463 15. In Actions of Salvage — continued. 5. Initiation of Action , p. 1689 6. Amount of Action 1689 7. Separate Actions 1689 8. Parties. (a) Generally 1690 (b) Ships' Agents of Officers and Crews of lI.H.'s Ships. See s. 9, p. 1691. (o) Third Parties. See Pt. II. p. 1507. (d) Owners of Cargo subsequently 10, 11. 12. 13. 14, 15. 16. 17 18. 19. 20. 21. 22. 23. 21. 25. 26. 27. 1691 (e) After Collision Action 1691 Claims by H.M.'s Ships, Officers and Crews. (a) No Claim for Loss or Damage,, 1691 (b) Consent of Lords of Admiralty to Proceedings 1691 (a) Ship's Agents 1691 Agreement to abide Adjudication and pay Salvage 1691 Restrictions on Proceedings in Superior Court 1691 Leave to proceed in Superior Court. See Pt. II. p. 1541. Detention before Warrant. (a) By Receiver of Wreck 1691 Sail. (a) Generally 1691 (b) Before Receiver of Wreck 1692 Value of Property salved. fa) Generally 1692 (b) Proof of— before Release. See Pt. II. p. 1669. Valuation of Property salved. (a) By Agreement , 1692 (b) By Appraisement 1692 (aa) Generally. See Pt. II. p. 1671. (bb) By Receiver of Wreck. Ibid. p. 1672. Release 1692 Estoppel. See Pt. II. p. 1584. Tender. Ibid. p. 1587. Pleadings 1692 Proofs. (a) Losses and Damages to Salving Property 1693 (b) Protests. See tit.- "Evidence," pp. 438, 461. (o) After Admission of Statement of Claim 1693 Trial. fa) Generally 1693 (b) Right to begin. See Pt. II. p. 1641. (c) Consolidated Actions 1693 (d) Rival Salvors 1693 Writs*of Execution 1693 Payment out of Court. See Pt. I. p. 1486. Apportionment of Salvage .. ,,, 1693 Appeal. Seetit. "Appeais," p. 51. Costs 1694 16. Actions of Distribution of Sal- vage. 1. Generally p. 1694 2. Costs 1694 17. Claims of Officers and Crews of H.M.'s Ships for Distribu- tion of Salvage 1694 18. In Wages Actions. 1695 2. By Foreigners. (a) Generally 1696 (b) Notice to Consul. See tit. "Wages," c. 2. 3. By Masters. (a) Generally 1696 (b) Accounts 1696 4. Agreements. (a) Generally. See tit. " Seamen." (b) Powers of Court to annul. Ibid. 5. Gradation of Wages on Promotion . . 1697 6. Recovery of Wages of Seamen entering the Navy 1697 7. Recovery of Expenses of Seamen left Abroad 1697 8. Recovery of Wages and Expenses of Distressed Seamen left Abroad .... 1697 9. Recovery of Expenses of Seamen's Illness or Injury 1697 10. Recovery of Wages of Deceased Seamen. See tit. " Seamen," Pt. VI. 11. Compensation for Ill-usage , 1697 12. Compensation for Improper Discharge 1698 13. Compensation for Bad or Short Pro- visions 1698 14. Waiver of Rights to Wages 1698 15. Deductions or Forfeitures 1698 16. Who may sue 1698 17. Who may defend 1698 18. Parties liable. (a) Owners 1699 (b) Masters 1699 (e) Other Parties 1699 19. Property liable. (a) Generally 1699 (b) Ship 1699 (c) Freight 1700 (d) Cargo 1700 20. Commencement of Right of Action ,, 1700 21. Warrant. See Pt. II. p. 1524. 22. Consolidation 1700 23. Bail. See Pt. II. p. 1565. 24. Proceedings by Default 1700 25. Abatement and Revival. See Pt. II. p. 1581. 26. Estoppel. Ibid. p. 1585. 27. Tender. Ibid. p. 1588. 28. Pleadings. Ibid. p. 1614. 29. Proofs 1700 30. Writs of Execution 1701 31. Payments into and out of Court. See Pt. I. pp. 1479, 1486. 32. Payment. a) Generally. See tit. " Wages." b) To Consul of Foreign Seamen . . 1701 c) Up to Judgment 1701 1464 PRACTICE. Pt. IV. 18. In "Wages Actions— continued. 33. Repayment P- 17°1 34. Double Pay 1 7° 1 35. liens: See tit. " Wages." 36. Priority of Wages over other liens . . 1702 37: laches. See tit. "Laches," p. 805. ; 38.- -Costs.- See tit. "Costs," p. 412. 39. Security for Costs 1702 19. Claims in respect of Volunteers into the Navy '.. 1702 Part IV -INFERIOR COURTS. 1. The Court of Admiralty of the • Cinque Ports. 1., Generally 1703 2. Jurisdiction. (a) Generally 1703 (b) Concurrent Jurisdiction of Ad- miralty Division 1703 3. Practitioners 1703 4. Pleadings, Proofs and Printing 1703 5. Fees 1703 6. Appeals as to Salvage from Cinque ' Ports Commissioners 1703 2. Commissioners of Cinque Ports . . 1703 3. Admiralty County Courts. 1. Generally 1704 2. list of 1705 3. Assessors 1705 4. Jurisdiction. (a) Generally 1705 (b) Concurrent Jurisdiction of Ad- miralty Division in Salvage Ac- tions in certain Cases 1706 5. Commencement of Proceedings. {a) In which Court 1706 6. Restrictions on Proceedings in Superior Courts. • then a copy of the writ of summons in the action. Ord. XVI. r. 48, No. 170. 352. To be entitled to indemnity within the meaning of this rule there must be a contract to indemnify. Speller v. Bristol Steam Navigation, Co., 13 Q. B. D. (C. A.) 96. 353. An application by the defendant in an action for leave to serve a third- party notice under Ord. XVI. r. 18 (now r. 48, No. 170), ought to be made on • notice to the plaintiff, and not ex parte. Wye Valley Rail. Co. v. Hawes, 16 Ch. D. 489. 354. Where the defendant by his de- fence sets up any counter-claim which raises questions between himself and the plaintiff along with any other person not a party to the action, this person shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same rules as are therein contained with respect to the service of a writ of summons, and every defence so served shall be indorsed in the Form No. 2 in Appendix B., or to the like effect. See Ord. XXI. r. 12, No. 245. 355. As to the appearance of such third party,, see c. 13, p. 1534. 356. The court or a judge may require any person to be made a party to any action or proceeding. See Ord. XVI. r. 39, No. 161. 357. The position of the defendant in the original action is the same whether a third party is cited or not. (0. A.) The CartsTmrn, 4 Asp. 202. 358. In an action for damage by colli- sion, brought by the owners of a vessel at anchor against a vessel in tow of a tug, the owners of the tug were made third parties under Ord. XVI. r. 18 (now r. 48, No. 170), as the defendants claimed to be indemnified by the owners of the tug against the plaintiffs' claim, on the ground that the improper navigation, if any, was that of the tug. The Bianca, 8 P. D. 91 ; 5 Asp. 60; The Cartsburn, 5 P. D. 35 ; 49 L. J. P. D. 14 ; 28 W. E. 378. 359. As to the joinder of parties, see s. 5, supra. 360. As to the joinder of plaintiffs, see s. 3, supra. 361. As to the joinder of defendants, see s. 4, supra. 362. As to the appearance of third parties, and the effect of their non-ap- pearance, see c. 13, s. 7, p. 1534. 363. As to further proceedings by and against third parties, see c. 21, p. 1560. (b) Interveners before the Judicature Acts and Sules.f 364. An interest to establish a persona standi in judicio is not an absolute right to a given sum of money ; but if a person may be injured by a decree in a suit, he has a right to be heard as against the de- cree ; although it may eventually turn out that he can derive no pecuniary benefit from the result of the suit itself. The Dowthorpe, 2 W. Bob. 77. 365. The practice of the court has been liberal in allowing parties to intervene * (136) As to third parties to actions, see Wilson's Judicature Acts and Rules (4th ed.), pp. 233 et seq. ; and Archbold's Practice (14th ed. by Ohitty), vol. 1, p. 416. t (137) Any person claiming an interest in a vessel libelled for a forfeiture may inter- vene, and make himself a party to the cause, and contest the forfeiture so far as the decree would be conclusive on his rights. The Mary Anne, Ware, 104. [American.] (138) As a general principle in American Admiralty cases in rem, any person having an interest in the thing may intervene pro interesse suo, and defend his own interest. Conkling's Adm. Prac. 2nd ed. p. 68. [Ame- rican.] PRACTICE. Pt. II. In the High Court. Cap. 6. 1501 ■who can show any interest whatever in -the result of a suit. The Two Ellens, L. E. 3 A. & E. 345 ; 40 L. J. Adm. 11 ; 1 Asp. N.S. 40 ; The Repulse, 5 Notes of Cases, 351. 366. Question, of compulsory pilotage in a cause of damage arising out of a collision on the river Ouse within the pilotage jurisdiction of the Trinity House of Kingston-upon-Hull. Application on behalf of the corporation of the Hull Trinity House for leave to intervene in the cause refused, the court observing that there was no precedent for it, and that it would not make one except under pressing necessity, being very reluctant to multiply parties to a suit on account of the additional expense, and that it was probable that the interests of the corpora- tion being similar to those of the defen- dant, they would be duly cared for by him. The Killarney, 1 Lushington, 435. 367. In a case of seizure for alleged traffic in slaves, the shippers of the cargo and a party claiming the cargo not cited admitted by the appellate court to inter- vene in the appeal promoted by the owners of the vessel against the sentence of condemnation. The Newport, 11 Moore, P. C. C. 516. 368. Bond on ship, freight, and cargo, ship and freight insufficient to pay it. Action by seamen against ship and freight for wages. The owners of the cargo were allowed to appear and defend, be- cause they had an interest in the admi- nistration of the fund. The Union, 3 L. T. N.S. 280; 30 L. J. Adm. 17; 1 Lushington, 128. 369. Semble, in a cause of mortgage the assignee in bankruptcy of the registered owners of the vessel mayintervene without first obtaining leave. The Heart of Oak, 39 L. J. Adm. 15 ; 3 Asp. 317. 370. An unregistered transferee of a mortgage of a ship might intervene in a suit against the ship for necessaries. The Two Ellens, 40 L. J. Adm. 11 ; L. E. 3 A. & E. 345. 371. Cause of necessaries brought by A. against a ship which, after the supply of necessaries, was sold by her then owner D. to Y. Application by D. to be allowed to appear in the suit instead of Y., who had appeared, Y. consenting, but A. ob- jecting, refused, but D. allowed to appear and give bail, Y. remaining a party to the suit. The Princess Charlotte, No. 969, December 17, 1861. 372. Where a vessel had been found to blame in a cause of collision, her owners were allowed to intervene in a salvage suit instituted against the injured vessel, and the court gave them the con- duct of the defence on their furnishing bail in lieu of that furnished by the vessel proceeded against. The Diana, 2 Asp. N.S. 366. (c) On Marriage, Death, Bankruptcy, $c. 373. In case of the marriage, death or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the court or a judge may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, personal repre- sentative, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter pre- scribed, and on such terms as the court or judge shall think just, and shall make such order for the disposal of the cause or matter as maybe just. Ord. XVII. r. 2, No. 179. 374. Where by reason of marriage, death, or bankruptcy, or any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be car- ried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the court or a judge, upon an allegation of such change or transmission of interest or lia- bility, or of such person interested having come into existence. Ibid. r. 4, No. 181. 374a. As to service of such order, see c. 12, p. 1529. (d) In Salvage Actions. See s. 24, p. 1507. 7. British and Foreign Government Ships. 375. Held, that aforeign sovereign was entitled to sue for ships purchased with money taken from him during a revolu- tion, and remaining in the port of L. ; and that the persons making the remit- tance were not necessary parties to the 1502 PRACTICE. Pt. II. In the High Court. Cap. 6. suit. King of the Two Sicilies v. Willcox, 1 Sim. N.S. 333. See also tit. Jubisdiction, Pt. I. p. 668. As to costs of, and against the Crown, see tit. Costs, c. 21, p. 373. 8. Corporations and Companies.* 9. Co-partners.\ 376. Any two or more persons claim- ing or being liable as co-partners may sue or be sued in the name of the respec- tive firms, if any, of which such persons were co-partners at the time of the accru- ing of the cause of action; and any party to an action may in such case apply by summons to a judge for a statement of the names of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct. Provided that, in the case of a co-partnership which has been dissolved, to the knowledge of the plaintiff, before the commencement of the action, the writ of summons shall be served upon every person sought to be made liable. Ord. XVI. r. 14, No. 136. 377. Any person carrying on business in the name of a firm apparently consist- ing of more than one person may be sued in the name of such firm. Ibid. r. 15, No. 137. 378. The objection that a partner can- not sue his co-partners is a technical ob- jection, and in a oase in which the pro- ceedings are in rem, the rule does not apply that the rest of the partners cannot recover as against the ship, partly owned by one of them. The West Friesland, Swabey, 454 ; 5 Jur. N.S. 659. 379. A partner may arrest the ship (the property of himself and co-partner) in a suit for necessaries. Ibid. Swabey, 495 ; 5 Jur. N.S. 658. 10. Several with one Interest. 380. "Where there are numerous per- sons having the same interest in one cause or matter, one or more of such per- sons may sue or be sued, or may be authorized by the court or a judge to de- fend in such cause or matter, on behalf or for the benefit of all persons so inte- rested. Ord. XVI. r. 9, No. 131. 11. Trustees, Executors and Adminis- trators.^ 881. Trustees, exeoutors, and adminis- trators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representa- tives, without joining any of the persons benefioially interested in the trust or es- tate, and shall be considered as represent- ing such persons ; but the court or a judge may, at any stage of the proceedings, order any of suoh persons to be made parties either in addition to or in lie* of the previously-existing parties. Ibid. r. 8, No. 130. 12. Assignees. 382. For provisions that an assignment in writing by the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom it is payable, shall be effectual in law (subject to all equities in priority) to transfer the legal right and remedies from the date of the notice, with power to the party to pay, to call on the assignor or any one claiming under him, to inter- plead, and with power to pay the amount into the High Court of Justice, under the provisions of the acts for the relief of trustees. See the Supreme Court of Judi- cature Act, 1873 (c. 66), s. 25, sub-s. 6. 383. Semble, in a cause of mortgage the assignee in bankruptcy of the registered owner of the vessel may intervene without first obtaining leave. The Heart of Oak, 39 L. J. Adm. 15 ; 3 Asp. 817. 384. Assignees of a bankrupt ship- owner have a persona standi to appear for the benefit of the general estate, and contest the appropriation of the prooeeds of the ship, against the assignees of the freight seeking to make the ship alone liable in the first instance, and this notwithstanding the shipowner had, prior to his bankruptcy, assigned his interest in the ship to other parties not before the * (139) As to proceedings in the Queen's Bench Division by and against corporations and companies, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 1050. t (140) As to power of partners to sue and be sued, see Wilson's Judicature Acts and Rules, 4th ed. p. 225. , t (141) As to proceedings in the Queens Bench Division by and against executors or administrators, see Arohbold's Practice («"» ed. by Chitty), vol. 2, p. 1112, and Wilsons Judicature Acts and Eules, 4th ed. p. 222. PRACTICE. Pt. II. In the High Court. Cap. 6. 1503 court, as a security for money advanced. The Dowthorpe, 2 W. Kob. 73. 385. Question as to the appropria- tion of the proceeds of ship and freight in satisfaction of outstanding judgments against them for bottomry, -wages, pilot- age, &c, •where a part owner had become a bankrupt, but had previously assigned to one party his interest in the ship, and to another party his interest in the freight, of 'whom the assignees under his bank- ruptcy and the assignees of the freight were before the court, and the other part owner, who was alleged also to have be- come a bankrupt, was not before the court. The court entered into an investi- gation of the relative claims of the par- ties, and apportioned the proceeds among them accordingly, in lieu of compelling them to have recourse to a court of equity to define the relative proportions due to them. Ibid. 2 W. Bob. 73, 86. 386. Assignees are not bound to act with the same degree of liberality as the owner himself. A.s trustees for creditors, they are not at liberty to submit to de- mands which may appear at all question- able, but must take the best means in their power to render the estate of the bankrupt as beneficial as possible to the persons with the care of whose interests they are intrusted. The Alexander, 1 Dodson, 278. 387. Assignees are in no better situa- tion in opposing a bottomry bond than owners where there is no bankruptcy. The St. Catherine, 3 Hagg. 253. 388. Semble, a power of attorney to sell a ship is not so revoked by a decree of the grantor's insolvency in a colonial possession as to invalidate a bond fide exercise of the power before notice of in- solvencv. The Margaret Mitchell, Swa- bey, 382 ; 4 Jur. N.S. 1194. 389. In the Prize Court restitution had passed »» solidum of three-fourths of the property claimed to an American house of trade. Afterwards it appeared that one of the parties was an English mer- chant and a bankrupt. His assignees prayed a severance of his particular share to be paid to them as his representatives for the benefit of his creditors. Applica- tion refused. The Jefferson, 1 C. Kob. 325. 390. In a suit instituted under the 4th section of the Admiralty Court Act, 1861, for building and equipping a vessel, the defendants pleaded that the alleged causes of action became vested in a trustee for the plaintiffs' creditors under a composi- tion deed. The plaintiffs in reply alleged that they assigned the causes of action prior to the execution of the deed, and that they were suing as trustees for their assignees. Held, that they might sue as trustees, although they had, but subse- quently to the assignment, executed the composition deed. Held, also, that though the assignment of the causes of action was prior to the arrest of the vessel and the institution of the suit, it carried with it the inchoate right to proceed against the vessel. The Wasp, L. E. 1 A. & E. 367 ; 2 Asp. 552. 13. Charterers. 391. See No. 432, p. 1507. 14. Mortgagees. 392. An unregistered transferee of a registered mortgage has sufficient interest to intervene in a suit instituted against the vessel mortgaged. The Tico Ellens, L. E. 3 A. & E. 345 ; 40 L. J. Adm. 11 ; 1 Asp. N.S. 40. 392a. Mortgagees in possession of a ship are in no better position than the owners with regard to the claims of the master. The Caledonia, Swabey, 17 ; 20 Jur. 48 ; 26 L. T. 177; 4 W. E. 183. 393. The court will investigate the master's account where a mortgagee is defendant, in the same manner as if the owner were defendant. The Julindur, 1 Spinks' Eecl. and Adm. Eep. 75. 394. A master who was also co-mort- gagee, brought an action for his wages in the Admiralty Court, under 7 & 8 Vict, c. 112, the original owner being a bank- rupt. The other mortgagee, who was in possession of the vessel, was allowed to appear in that action, and besides the wages the whole accounts between the mortgagees were investigated and settled. The Repulse, 4 Notes of Cases, 172 ; 5 Ibid. 348 ; 2 W. Eob. 40. 395. A party who repaired at a remote port, with the sanction of the owners, a vessel disabled at sea, arrested it for the price, and brought it to a judicial sale. Held, that mortgagees who had sustained no actual loss had no legal title or interest to challenge the proceedings. Elias v. Black, 18 Court of Session Cases. 1225. [Scotch.] 396. A foreign agent specially autho- rized, collected the gross freight, and thereout remitted a sum larger than the 1504 PRACTICE. Pt. II. In the High Court. Cap. 6. amount of the net freight. Expenses in respect of the outward voyage, e.g. dis- charging expenses and compensation to consignees for short delivery of cargo, then became payable. The agent ad- vanced sums for these and other debts against the ship, and for repayment took a bottomry bond on ship and freight. Held, that the mortgagees, not in posses- sion of the ship when the bond was given, had no right;, to object to such items in the bond. The Edmond, 1 Lushington, 63 ; 2 L. T. N.S. 129 ; 29 L. J. Adm. 76. 397. Queer -e, whether the ship having been sold, the proceeds being insufficient to pay the mortgages thereon, and the owner being a bankrupt, a principal mortgagee has a sufficient interest to oppose a mariner's claim for wages ? The Prince George, 3 Hagg. 377, 380. 398. The title of mortgagees is, in questions of bottomry and similar eases, ■equivalent to that of the owners. The Mary Ann, 10 Jur. 255. 399. In an action against ship and freight for master's wages, the mortgagee in possession is entitled to a release of the ship upon giving bail, notwithstanding the master has become liable in respect of bills of exchange, drawn upon the charterers for the ship's use. The Ring- dove, Swabey, 310 ; but see tit. Mastees, p. 1126, Nos. 105—112. 400. A master is not debarred from suing for his wages under the 7 & 8 Yict. c. 112, upon the ground that he was a co-mortgagee of the vessel at the time. The Repulse, 2 W. Eob. 240. 401. Semble, that prior to 3 & 4 Vict. c. 65, a mortgagee, though he could not have initiated a suit in the Court of Ad- miralty, might yet have intervened for the protection of his interest. The Dow- thorpe, 2 W. Eob. 83. 401a. As to the rights of mortgagees generally, see tit. Mobtgage, p. 1129; and in reference to carriage of goods, see tit. Goods, Cabeiage of — , pp. 597 — 601. 1 5 . Underwriters. 402. An underwriter must, in a cause of damage, sue in the name of the owner. The John Bellamy, L. E. 3 A. & E. 129 • 3 Asp. 360* 403. A collision having occurred be- tween the vessels B. and E, whereby the E.'s cargo was lost, a suit was instituted against the B. by the plaintiffs, who de- scribed themselves as the owners of the cargo ex E. The B. having been held to blame, a reference to the registrar was directed. At the reference it appeared that the plaintiffs were underwriters, who had paid the shippers as on a total loss. The plaintiffs produced the bills of lading and invoices of the cargo. Held, that the defendants were entitled to evidence of a discharge from the owners of the cargo before the registrar proceeded to make his report. Ibid. 404. Queer e, is a shipper of goods act- ing within the ordinary scope of his authority as agent for the owner in in- suring such goods ? Ibid. 405. Underwriters can assert any right which the owner of the ship insured might have asserted against a wrongdoer for damages for the act which has caused the loss. But this right of action for damages they must assert, not in their own name, but in the name of the person insured ; and if the person insured he the person who has caused the damage, the underwriters are unable to recover. Simpson v. Thomson, 3 App. Cas. H. L. 279 ; 3 Asp. N.S. 567. [Scotch.] 406. A steamer ran into and sank another vessel belonging to the same owner. The owner admitted his lia- bility, and petitioned for limitation of liability. Claims having been lodged by * (142) Where, however, the owner has abandoned to the underwriter and he has ac- cepted the abandonment by payment of total loss or otherwise, it would seem that the underwriter is entitled to proceed in his own name. See tit. Maeine Insurance, p. 1086. (143) In an action by a plaintiff for injury done to his vessel by collision, it is no answer that the plaintiff has received from the under- writer the amount of his loss, as he is trustee for the underwriter for what he re- covers from the defendant. 1 Park on Ins. 331. (144) Insurers held liable under the colli- sion clause for claims in respect of loss of life and injury by collision. The Excehior Com- pany v. Smith, 2 L. T. N.S. 90. [Scotch.] (145) Underwriters cannot claim for sal- vage property in the Admiralty unless the property has been abandoned to them and accepted by them. The Henry Ewbank, i Sumner, 400. [Ameeioan.] (146) As to the rights of underwriters to intervene in causes of salvage in the Ameri- can Admiralty Courts, see Marvin on Wreck and Salvage, 63. The Ship Packet, 3 Mason, 255; The Boston, 1 Sum. 332; The Brig Ann G. Pratt, 1 Curteis, 340. [American.] PRACTICE. Pt. II. In the High Court. Cap. 6. 1505 the underwriters who had insured the lost vessel, and by the owners of cargo therein, against the fund to be distri- buted, held, by the House of Lords, re- versing the judgment of the Court of Session, that inasmuch as the under- writers could have had no claim against the shipowner, they had no claim upon the fund to be distributed. Ibid. ; 38 L. T. 1 ; sub nom. Burrel v. Simpson, Cases in the Court of Session, 4th Series, vol. 4, p. 177. [Scotch.] 407. In an action of damage by colli- sion, it was proved that the underwriters on the vessel damaged had paid to the pursuers a sum in respect of the damage, but had also executed a deed of assigna- tion to the pursuers of all their (the underwriters) rights against the de- fenders. The defenders being found in default, held, that they were liable to pay the pursuers the full amount of the damage. Morison v. Bartolomeo, Cases in the Court of Session, 3rd Series, vol. 5, p. 848. [Scotch.] ' 408. As to the rights of underwriters on abandonment to them, see tit. Marine Insurance, p. 1086; and as to their rights and liabilities in reference to collision, ibid. p. 1030, Nos. 1636—1642. 409. The result of abandonment is that all incidents to the thing abandoned pass with it. Thus, claims on account of collision pass to the underwriters, who may commence an action in the name of the assured. Yates v. Whyle, 4 Bing. N. C. 272 ; 5 Scott, 640. 410. As to the title of underwriters generally, see The Kennersley Castle, 3 Hagg. 6. 411. A ship was arrested in a cause of damage to cargo. The underwriters on the ship were willing to accept an abandon- ment, but the owners had not abandoned. The underwriters caused an appearance in the cause to be entered on behalf of the owners of the ship, who subsequently ap- peared by another proctor, and repudiated the underwriters' proceedings. The court refused to permit the underwriters to pro- ceed further in the cause on behalf of the owners. The Bahia, No. 1661, 5th May, 1863. 412. A.'s ship damaged B.'s. B., after he had received a sum of money under a policy which he had effected on his ship, brought an action against A., and re- covered damages for the injury done to his ship. Held, that the underwriter had a lien on the amount recovered for the sum paid on the policy. White v. Dobin- son, 14 Sim. 273 ; and see Randal v. Cochran, 7 Ves. sen. 98. 413. There is no independent right in underwriters to maintain in their own name, and without reference to the per- son insured, an action for damage to the thing insured. Simpson v. Thomson, 3 App. Cas. 279 * 414. As to the priority of underwriters and other's liens, see tit. Liens, p. 831. 16. Minors, Lunatics, and Married Women.] 415. Infants may sue as plaintiffs by their next friends, in the manner hereto- fore practised in the Chancery Division, and may, in like manner, defend by their guardians appointed for that purpose. Married women may sue and be sued as provided by the Married Women's Pro- perty Act, 1882 (c. 75), and Ord. XVI. r. 16, No. 138. 416. See further as to appearance of infants only by their guardians ad litem, and as to the appointment of such guardians, ibid. rr. 18, 19, Nos. 140, 141. 417. Before the name of any person shall be used in any action as next friend * (147) In a suit i» rem on a bottomry bond, underwriters to whom an abandon- ment is made which has not been accepted are not admissible as claimants. The Ship Packet, 3 Mason, 255. [American.] (148) A chose in action being now assign- able under the Judicature Act, 1873 (c. 66), s. 25, sub-s. 6, underwriters who have paid for a loss or damages by collision under the running-down clauses of a policy of marine insurance, and have had the property assigned to them in accordance with the act, may now sue in their own names the wrong-doing vessel or her owners. (149) For the American law as to abandon- ment and its effects, see 2 Parsons on Mari- time Law, 416. t (150) As to proceedings in the Queen's Bench Division by and against lunatics and persons of unsound mind, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 1141, and Wilson's Judicature Acts and Eules (4th ed.) pp. 226 et seq. (150a) As to ditto by and against infants, see Archbold, Ibid. p. 1133, and Wilson, Ibid. pp. 226 et seq. (151) As to suits by minors in the American Admiralty Courts, see Dunlap's Adm. Prac. 2nd ed. pp. 76, 97. [American.] 1506 PRACTICE. Pt. II. In the High Court. Cap. 6. of any infant, or other party, or as re- lator, such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the Central Office, or in the district registry if the cause or matter is proceeding there- in. Ord. XVI. r. 20, No. 142. 418. Where lunatics and persons of unsound mind not so found by inquisition might respectively before the passing of the principal ..act have sued as plaintiffs, or would have been liable to be sued as defendants in any action or suit, they may respectively sue as plaintiffs in any action by their committee or next friend according to the practice of the Chancery Division, and may in like manner defend any action by their committees or guar- dians appointed for that purpose. Ibid. r. 17, No. 139. 419. As to the effect in all causes or matters to which any infant or person of unsound mind, or under other disability, is a party, of consents as to the mode of taking evidence or other procedure given by the next friend, guardian, committee, or person acting for the person under disability, Ibid. r. 21, No. 143. 420. A minor sues in the Admiralty Court by his guardian. The Albert Crosby, 1 Lushmgton, 44 ; also a child en ventre sa mire. The George and Richard. L. E. 3 A. & E. 466 ; 24 L. T. N.8. 717. 17. Sureties. 421. Sureties cannot interfere with the conduct of the cause at any time except when the principal is guilty of fraud, or there is collusion between him and the adverse party, when the sureties are entitled to apply to the court, alleging such fraud or collusion. The Harriett, 1 W. Eob. 199, 203; 6 Jur. 197; 1 Notes of Cases, 327; and see c. 19, s. 17, p. 1550. 18. Paupers. See next chapter. 19. Foreigners.* 422. Semble, where the parties suing are foreigners the court will be more indul- gent in overlooking mere technical defects in. the conduct of the proceedings than in the case of a British suitor. The Anne and Jane, 2 W. Eob. 98. 423. Proceedings on an application. by foreign ambassador on behalf of the sub- jects of his country, who afterwards make a similar application for themselves, are by such intervention substantiated; and any formal objections to the proceedings, on the ground of the authority of the ambassador, removed. The Hercules, 2 Dodson, 369. 424. As to actions of possession by foreigners, see tit. Owjtees, Pt. I. p. 1182. 425. In actions of wages by foreigners, see tit. Wages. 20. Deceased without Representative. 426. Por provisions that if in any cause or matter it appears to the court that any deceased person who was interested in the matter has no legal personal repre- sentative, the court may proceed in the absence of any person representing his estate, or may appoint some person to represent his estate for the purposes of the cause or matter, on such notice as the court shall, think fit, and that any order so made shall bind the estate, see Ord. XVI. r. 46, No. 168. 21. In Bottomry Actions. 427. See Pt. in. c. 1, Nos. 2119 et seq. 22. In Collision Actions. 428. Where cargo is shipped on the shipowner's account, and money is ad- vanced to them by persons who take "as security an assignment of a policy of insurance on the freight and a bill of lading signed by the master and indorsed by him, with a receipt for a sum of money on account of freight named in the bill of lading, and the ship is run down and sunk by the negligence of another vessel, the persons advancing money as holders of the bill of lading have sufficient inte- rest in the goods and freight to entitle them to recover from the owners of the wrong-doing vessel the sum of money advanced on account of freight. The Thyatira, 5 Asp. 147. * (152) Under sect. 19 of the Common Law Procedure Act, 1852, a foreign cor- poration could not have been sued unless it had a place of business in this country ; but when an order for service out of the jurisdiction has been obtained, it may now be sued, although it has no place of business here. See Charley's Praotice and Pleading under the Judicature Acts, 3rd ed. p. 417, and the cases therein cited, PRACTICE.' Pt. II. In the High Court. Cap. 7. 1507 429. In an action for damage by colli- sion the jury found for the pursuers, and assessed the damages at £566. They also specially found that the pursuers had re- ceived from the underwriters the sum of £350 in respect of the damage sustained. On the pursuers producing a deed of assig- nation to them by the underwriters of all their rights against the defenders, held, that as the assignation enabled the defen- ders to get a good discharge from all claims against them they were liable to pay the whole £566 to the pursuers. Morison v. Bartolomeo, Cases in the Court of Session, 3rd Series, vol. 5, p. 848. [Scotch.] 430. A part owner of a ship is entitled to sue for recovery of his share of the da- mage occasioned by her having been de- stroyed. Law&on v. Leith and Newcastle Packet Co., Nov. 26, 1850; 13 D. 175; 23 Jur. 51. [Scotch.] 23. In Marine Insurance Actions. See tit. Mabjne Insueance, p. 1100. 24. In Salvage Actions. 431. Every dispute with respect to sal- vage 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. M. S. Act, 1854 (c. 104), s. 460. 431a. If a part owner of a salving vessel has an interest in the vessel salved, his co-owners, master and crew of the salving vessel may sue for salvage, the sum to which they are entitled being computed by deducting from the value of the entire service the share which would have been due to such part owner if he could have joined. The Caroline, 5 L. T. N.S. 89 ; 1 Lushington, 334. 432. The owner of a salving vessel is not an unfit person to originate a suit for salvage. The Haidee, 1 Notes of Cases, 598. 432a. A charterer of a vessel upon such terms as to constitute him pro hdc vice owner, is entitled to be plaintiff of the vessel in a salvage action and to the owner's share of the salvage award, to the exclusion of the general owner of the vessel. The Scout, L. E. 3 A. & E. 512 ; 41 L. J. Adm. 42. 433. In a suit for salvage, which had been instituted in the name of the owners and others of the asserted salving vessel, and in which suit the asserted salvors had been condemned in costs, a monition for payment of costs having been served on such owner, an application for an attachment against him for disobedience thereto, opposed by the owner, alleging that the suit had been instituted without his authority, acquiescence, or privity, rejected, and the owner dismissed. The Wilhelmine, 2 Notes of Cases, 19. 434. "Whenever any articles belonging to or forming part of any foreign ship which has been wrecked on or near the coasts of the United Kingdom, or belong- ing to or forming part of the cargo thereof, are found on or near such coasts, or are brought into any port in the United Kingdom, the consul-general of the coun- try to which such ship, or, in the case of cargo, to which the owners of such cargo may have belonged, or any consular officer of such country authorized in that behalf by any treaty or agreement with such country, shall in the absence of the owner of such ship or articles, and of the master or other agent of the owner, be deemed to be the agent of the owner, so far as relates to the custody and disposal of such articles. The M. S. Act Amend- ment Act, 1855 (c. 91), s. 19. 25. In Wages Actions.* 435. See Nos. 263—268, p. 1490, and Nos. 392—400, p. 1503. 7. Paupers.f 436. Any person may be admitted in the manner heretofore accustomed to sue *• (153) Though seamen may join in Ad- miralty in a suit for wages, a decree against one does not affect the claims of the rest. Oliver v. Alexander, 6 Pet. 143. [Ameeican.] (154) Seamen may sue jointly or severally in the Admiralty for their wages. Hook v. Moreton ( 1697), Ld. Eaym. 398. t (155) For provisions applicable to pro- ceedings by persons suing in formd pauperis in action in the Queen's Bench Divisions see 11 Hen. 7, c. 127 ; 23 Hen. 8, c. 15; 3 Steph. Comm. 8th ed: p. 590, and cases there cited. (156) As to actions in the Common Law and Chancery Divisions by paupers, see Arch- bold's Practice (14th ed. by Chitty), vol. 2, p. 1182. _ (157) As to the old practice in the eccle- siastical courts in regard to paupers, see Lovekin v. Edwards, 1 Phill. 183; Lait v. Bailey, 2 Eobertson, 153 ; 7 Notes of Cases, 390 ; Walker v. Walker, 1 Curteis, 562 ; File- wood v. Cousens, 1 Add. 286; Bind v. Davies, 4 1508 PRACTICE. Pt. II. In the High Court. Cap. 8; or defend as a pauper on proof that he is not worth £25, his wearing apparel and the subject-matter of the cause or matter only excepted. Ord. XYI. r. 22, No. 144. 437. A person desirous of suing as a pauper shall lay a case before counsel for his opinion whether or not he has reason- able grounds for proceeding. Ibid. r. 23, No. 145. 438. No person shall he permitted to sue as a pauper unless the case laid he- fore counsel for his opinion, and his opinion thereon, with an affidavit of the party, or his solicitor, that the case con- tains a full and true statement of all the material facts to the best of his know- ledge and belief, shall be produced before the court or judge or proper officer to whom the application is made, and no fee shall be payable by a pauper to his counsel or solicitor. Ibid. r. 24, No. 146. 439. A person admitted to sue or de- fend as a pauper shall not be liable to any court fee. Ibid. r. 25, No. 147. 440. "Where a person is admitted to sue or defend as a pauper the court or a judge may, if necessary, assign a counsel or solicitor, or both, to assist him, and a counsel or solicitor so assigned shall not be at liberty to refuse his assistance un- less he satisfies the court or judge that he has some good reason for refusing. Ibid. r. 26, No. 148. 441. Whilst a person sues or defends as a pauper no person shall take, or .agree to take, or seek to obtain from him any fee, profit, or reward, for the conduct of his business in the court, and any person who takes, or agrees to take, or seeks to obtain any such fee, profit, or reward shall be guilty of a contempt of court. Ibid. r. 27, No. 149." 442. If any person admitted to sue or defend as a pauper gives, or agrees to give, any such fee, profit, or reward, he shall be forthwith dispaupered, and shall not be afterwards admitted again in the same cause to sue or defend as a pauper. Ibid. r. 28, No. 150. 443. No notice of motion shall • be served or summons issued, and no peti- ' tion shall be presented, on behalf of any person admitted to sue or defend as a pauper, except for the discharge of his solicitor, unless it is signed by his i soli- citor. Ibid. r. 29, No. 151. 444. It shall be the duty of the soli- citor assigned to a person admitted to sue or defend as a pauper to take care that no notice is served, or summons issued, or petition presented, without good cause. Ibid. r. 30, No. 152. 445. Costs ordered to be paid to a person admitted to sue or defend as a pauper shall, unless the court or a judge shall otherwise direct, be taxed as in other eases. Ibid. r. 31, No. 153. 446. See, as to costs of paupers, the observations of the Master of the Bolls in Carson v. Pichersgill, 14 Q. B. D. 859. 446a. A successful plaintiff suing m formd pauperis, in an action tried before a judge and jury, is entitled, on taxation against the defendant, to costs out of pocket only, and cannot be allowed any- thing for remuneration to his solicitor, nor for fees to his counsel. Ibid. 447. The party proceeding in a cause of possession afterwards applied for and obtained leave to continue the suit in formd pauperis, which was subsequently dismissed, and the party condemned in costs, for which he was afterwards taken on an attachment for nonpayment. An application to supersede the attachment, on the ground of its enforcing the costs whilst the party was suing in formd pau- peris, rejected. The Plym, 2 "W. Bob. 345 ; 8 Jur. 990. 8. Writs of Summons. 1. Generally.* 448. Every action in the High Court shall be commenced by writ of summons. See Ord. II. r. 1, No. 3. Hagg. (Eccl.) 394 ; and see Le Mann v. Bon- sal, 1 Add. 399 ; Wagner v. Mears, 2 Hagg. (Eccl.) 531 ; Graham v. Fitzpatrich, Mil- ward's Ir. Eccl. Rep. 576 ; Lait v. Bailey, 2 Bobertson, 150; 14 Jur. 378; 7 Notes of Oases, 388 ; In the goods of Ann Jones, deceased, 1 Hagg. (Eccl.) 81 ; Earner v. Bereham, 1 Swabey & Tristram, 26. * (158) All writs are obtained from the central office only. There is no praecipe required for a writ. The practitioner or his; clerk fills up the writ in duplicate, signs the duplicate, procures a 10s. stamp to.be un- gressed on it, hands in both at the Central fflce, and receives the original writ only sealed, with the proper reference letter and number inserted therein by the official, W retains the duplicate. (159) The writ is then taken by the prac- titioner, or his clerk, to the registry «i ™ e Admiralty division, where he leaves a *off of the writ, and in lieu thereof obtains the PRACTICE. Pt. II. In the High Court. Cap. 8. 1509 449. Every writ of summons not issued out of a district registry shall be issued out of the Central Office. Ord. V. r. 2, No. 24. 450. The writ of summons shall specify the division of the High Court to which, it is intended that the action should be assigned. See Ord. II. r. 1, No. 3. 451. For forms of writs of summons, see E. 8. C. 1883, App. A. Pt. I. Nos. 1, 2, 5 and 6. 452. As to costs occasioned by the use of any forms of writs, other or more prolix than the forms prescribed, see tit. Costs, c. 9, p. 349. 453. Writs of summons shall be pre- pared by the plaintiff or his solicitor, and shall be written or printed, or partly written and partly printed, on paper of the Bame description as by these rules directed in the case of proceedings di- rected to be printed. Ord. T. r. 10, No. 32. 454. Every writ of summons shall bear date on the day on which it is issued, and shall be tested in the name of the lord chancellor, or if that office is vacant in the name of the lord chief justice of England. Ord. II. r. 8, No. 10. 455. The plaintiff or his solicitor shall, on presenting any writ of summons for sealing, leave with the officer a copy, written or printed, or partly written and partly printed, on paper of the descrip- tion aforesaid (i. e., that mentioned in Ord. LXVI. r. 3, No. 1005), of such writ and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in per- son. Ord. V. r. 12, No. 34. 456. Notice to the proper officer of the assignment of an action to any division of the court shall be sufficiently given by leaving with him the copy of the writ of summons. Ibid. r. 14, No. 36. ' 457. Copies of writs of summons should be signed with the name of the solicitor or solicitors' clerks suing them out as under : — C. D. and Co. or A. B. for C. D. and Co. The stamp is to be on the copy writ filed. See C. O. P. E. 1880—82, in Wilson's Judicature Acts and Eules, 4th ed. p. 846. 458. The officer receiving such copy shall file the same, and an entry of the filing thereof shall be made in a book to be called the cause book, which is -to be kept in the manner in which cause books are now kept, and the action shall be distinguished by the date of the year, a letter, and a number, in the manner in which causes are now distinguished in such cause books. Ord. V. r. 13, No. 35. 459. Every writ of summons shall be sealed by the proper officer, and shall thereupon be deemed to be issued. Ibid. r. 11, No. 33. 460. No original writ of summons shall be in force for more than twelve months from the day of the date thereof including such day. See Ord. VIII. r. 1, No. 45. 461. A shipowner, residing and carry- ing on business in Scotland, was described in the writ of summons for service within the jurisdiction as "of the City of Lon- don." He applied before service of the writ, and after a cross action of damage in respect of the same collision had been instituted on his behalf, that the writ should be set aside as irregular. The court refused the motion. The Hetenslea The Catalonia, 7 P. D. 57 ; 4 Asp. 594. 462. Semble, non constat, but that the writ may have been taken out for service on the defendant when he should come within the jurisdiction. See Ord. YIII. r. 1, No. 45. 2. In Personam.* 463. The writ of summons for the corn- proper folio number of the cause. This he marks on the writ, which is then complete and ready for service. (160) As to the issue of writs of summons and the proceedings thereon, whether in London or in the district registries, see Wil- son's Judicature Acts and Eules, 4th ed. pp. 173—188; Archbold's Practice of the Queen's Bench Division (14th ed. by Chitty), vol. 1, pp. 214 et seq. (161) The procedure by citation in per- sonam in commencing an action (for which see the Admiralty Court Act, 1861 (c. 10), s. 22, since repealed, and the Eules and Orders of 1859, how annulled), and the procedure by monition (for which see the Admiralty Court Act, 1854 (c. 78), s. 13), are abolished by the procedure by writ of summons under the Judicature Acts and Eules. See Ord. I. r. 1, No. 1. The procedure by monition is also now obsolete. . (162) The Court of Admiralty, before the Judicature Acts, on being applied to to issue a warrant to arrest a vessel in a cause in which the jurisdiction was uncertain, directed in lieu thereof a monition to issue against the agents and consignees, the owners being foreigners. The Governor Baffles, 2 Dodson, * (163) Writs of summons are ordinarily 1510 PRACTICE. Pt. II. In the High Court. Cap. 8. mencement of an aotion is required to be, except as therein mentioned in one of the Forms Nos. 1, 2, 3 and 4 in Appendix A., Part I. See Ord. II. r. 3, No. 5. . 3. In Rem.* 464. The writ of summons in every Admiralty action in rem shall be in one of the Forms Nos. 11 and 12 in Appen- dix A., Part I., with such variations as circumstances may require. Ibid. r. 7, No. 9. 4. Indorsement. (a) Generally. 465. The writ of summons shall be in- dorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action. Ibid. r. 1, No. 3. 466. The indorsement of claim shall be made on every writ of summons before it is issued. Ord. III. r. 1, No. 11. 467. In the indorsement it is not essen- tial to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled. Ibid. r. 2, No. 12. 468. The indorsement of claim shall be to the effect of such of the Porms in Ap- pendix A., Part III. s. 6, as shall be ap- plicable to the case, or, if none be found applicable, then such other similarly con- cise form as the nature of the case may require. Ibid. r. 3, No. 13. ' 469. If the plaintiff sues, or the defen- dant or any of the defendants is sued, in a representative capacity, the indorsement shall show, in manner appearing by such of the Porms in Appendix A., Part III. s. 7, as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defen- dant sues or is sued. Ibid. r. 4, No. 14. 470. As to costs occasioned by the use of any forms of indorsements on writs, other or more prolix than the forms pre- scribed, see tit. Costs, c. 9, p. 349. 471. In all cases in which the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be indorsed with a claim that such ac- count be taken. Ord. III. r. 8, No. 18. (b) Special.^ (c) Debt or Liquidated Demand. 472. "Wherever the plaintiff's claim is for a debt or liquidated demand only, the indorsement, besides stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs respectively, and Bhall further state, that upon payment thereof within four days after service, or in case of a writ not for service within the juris- diction, within the time allowed for ap- pearance, further proceedings will be stayed. Such statement shall be in the form in Appendix A., Part III. s. 3. The defendant may, notwithstanding such payment, have the costs taxed, and if more than one-sixth Bhall be disallowed, the plaintiff's solicitor shall pay the costs of taxation. See Ord. III. r. 7, No. 17 ; and see Wilson's Jud. Acts and Rules, 4th ed. p. 179. (d) Name and Address of Plaintiff and his Solicitor. 473. In all cases where a writ of sum- mons is issued out of the Central Office, the solicitor of a plaintiff suing by a solicitor shall indorse upon the writ and notice in lieu of service of a writ the ad- dress of the plaintiff, and also his own name or firm and place of business, and also, if his place of business shall be more than three miles from the principal entrance of the Central Hall at the Royal Courts of Justice, another proper place, to be called his address for service, which shall not be more than three miles from the principal entrance of the Central Hall at the Eoyal Courts of Justice, where writs, notices, pleadings, petitions, orders, summonses, warrants, and other docu- m personam. section. For those in rem, see next (164) For Admiralty writs in personam, Form No. 1, in App. A. to R. S. 0. 1883, is generally used with a few slight alterations. * (165) As to warrants for the arrest of the res', or ship to obtain bail, or the security of the ship pending the action, see cap. 11, p. 1515. (166) It is not necessary to the proceed- ings that a warrant should be issued, as well as a writ ; and this is so even in proceedings by default; but of course, before it becomes necessary to enforce process against the ship, it must be arrested if not already under ar- rest. t (167) As to proceedings where the writ is specially endorsed, see Ord. HI. r. 6, No. 16 ; Wilson's Judicature Acts and Eules. 4th ed. p. 178; and Archbold's Practice (l«h ed. by Chitty), vol. 1, p. 221. PRACTICE. Pt. II. In the High Court. Cap. 8. 1511 ments, proceedings, and written commu- nications may be left for him. And where any such, solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. Ord. IV. r. 1, No. 19. 474. For similar appropriate indorse- ment, where the plaintiff in person obtains the writ, Ibid. r. 2, No. 20. 5. Out of Jurisdiction.* (a) Generally. 475. A writ of summons to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be in one of the Forms Nos. 5, 6, 7 and 8 in Appendix A., Part I., with such variations as circumstances may require. Such notice shall be in one of the Forms Nos. 9 and 10 in the same Part, with such variations as circumstances may re- quire. Ord. II. r. 5, No. 7. 476. No writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the court or a judge. Ibid. r. 4, No. 6. 477. The words "within the jurisdic- tion" in Ord. XI. of E. 8. 0. 1875, now Ord. XI. of E. S. 0. 1883, mean "terri- torial jurisdiction." Therefore the Court of Admiralty will not issue a writ for service abroad in respect of a wrong done on the high seas. Re Smith, 1 P. D. 300 ; 3 Asp. N.S. 259 ; 45 L. J. P. D. 92 ; 35 L. T. 380 ; 24 W. E. 903 ; The Vivar, 2 P. D. 29 ; 35 L. T. 782 ; 25 W. E. 453. 478. A collision occurred on the high seas between an English vessel and a vessel belonging to a foreign company. An application for leave to issue a writ of summons, of which notice should be given to the company out of the jurisdic- tion, refused, as the collision had not occurred within the jurisdiction within the meaning of the before-mentioned order. He Smith, ubi supra. 478a. A collision took place at sea, about ten miles from the South Stack Lighthouse, between an American and a Spanish vessel. Both vessels sank in consequence of the collision, and the owners of the American vessel applied in the registry for leave to issue a writ for service out of the jurisdiction in an action to 'recover compensation for the loss of their vessel against a British subject resi- dent in Spain, who was alleged to be one of the owners of the Spanish vessel. The registrar having granted the necessary leave, the writ was issued and service was effected on the defendant in Spain. There- upon an appearance under protest was entered on his behalf. Afterwards, on these facts being brought before the judge of the Admiralty Court, on motion, the court ordered the action to be dismissed. Held, on appeal, that the order was right. The Vivar, ubi supra. 479. The court will not issue a writ for service abroad in respect of a wrong done below low-water mark but within three miles of the shore. Harris v. Owners of the Franconia, L. E. 2 C. P. 173 ; 46 L. J. C. P. 363 ; and see Reg. v. Kehn, 2 Exch. D. 68. 480. For form of order for service out of jurisdiction, see E. S. C. 1883, Appen- dix K. No. 20. 481. As to concurrent writs out of the jurisdiction, see No. 495, infra. 482. As to the service of a writ of summons out of the jurisdiction, see c. 12, s. 5, p. 1525. (b) Third Parties. \ 6. From District Registry. (a) Generally. 483. In any action (other than a Pro- bate action), the plaintiff wherever resi- dent may issue a writ of summons out of any district registry. Ord. V. r. 1, No. 23. 484. "When an action is commenced in a district registry, the writ, besides being distinguished by the date of the year, a letter and a number, is to be further dis- guished by the name of the district re- gistry from which it is issued. Ibid. r. 13, No. 35. • (168) As to the issue and service of writs of summons, when the defendant is out of the jurisdiction, see "Wilson's Jud. Acts and Rules, 4th ed. p. 198; and Archbold's Prac- tice (14th ed. by Chitty), vol. 1, p. 244. t (169) In an action by a first mortgagee of a ship against a second mortgagee for an account, persons resident abroad and retain- ing the freight as against a debt due to them from the second mortgagee, may be added as defendants and served with notice of the writ out of the jurisdiction under Ord. XI. r. 1, provided the contract under which the freight is due is an English contract. — V.-O. B. McStephem & Co. v. Carnegie, 4 Asp. 215. 1512 PRACTICE. Pt. II. In the High Court. Cap. 8. 485. In all cases where the defendant resides or carries on business within the district, there shall be a statement on the face of the writ that the defendant do cause an appearance to he entered at the district registry. Ord. V. r. 4, No. 26. 486. In all cases where a defendant neither resides nor carries on business within the district, there shall be a state- ment on the face of the writ that the de- fendant may cause an appearance to be entered at his option either at the district registry or at the Central Office. Ibid. r. 3, No. 25. (b) Indorsement of Name and Address of Plaintiff and his Solicitor. 487. In all cases where a writ of sum- mons is issued out of a district registry the solicitor of a plaintiff suing by a soli- citor shall indorse upon the writ, and notice in lieu of service of a writ, the address of the plaintiff, and his own name or firm and place of business, which shall, if his place of business be within the district of the registry, be an address for service, and if such place be not within the district, he shall add an address for service within the district, and, where the defendant does not reside within the district, he shall add. a further address for service, which shall not be more than three miles from the principal entrance of the Central Hall at the Eoyal Courts of Justice ; and where the solicitor issuing the writ is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. Ord. IV. r. 3, No. 21. .- 488. For similar endorsement where the plaintiff in person obtains the writ from the district registry, Ibid. 488a. As to the amendment of endorse- ment, see next section. 7. Amendment.* 489. If a writ of summons has been lost, the filed copy may, for the purpose of amendment or otherwise, be used as a duplicate, but only by leave of a practice master, and on the party giving an un-. derwriting to produce the original at the Central Office when found. See C. Prac. Eules, 1880-82, in Wilson's Jud. Acts and Eules, '4th ed. p. 847. 490. As to amendment within fourteen days, when no time is mentioned in the order to amend, Ibid. 491. As to amendment of amount of claim in writ, see c. 4, Nos. 282 — 289 p. 1492. 492. As to service of amended writ, see c. 12, p. 1527. 493. In all the divisions an amendment of a writ of summons may be made by leave of a master (on payment of fee) before service. A plaintiff can be struck out only by special leave given in the order to amend ; a defendant, by special leave, or on the written statement (to he filed) of the plaintiff's solicitors that a no- tice of discontinuance under Ord. XXIII. (now Ord. XXVI.) has been duly given, See C. 0. Prac. Eules, 1880-82, in Wilson's Jud. Acts and Eules, 4th ed. p. 846. 8. Concurrent. (a) Generally. 494. The plaintiff in any action may, at the time of, or at any time during twelve months after the issuing of the original writ of summons, issue one or more concurrent writ or writs, each con- current writ to bear teste of the same day as the original writ, and to be marked with a seal bearing the word " concur- rent," and the date of issuing the con- current writ ; and such seal shall be im- pressed upon the writ by the _ proper officer : provided always, that such con- current writ or writs shall only^ be in force for the period during which the original writ in such action shall be in force. Ord. VI. r. 1, No. 40. (b) Within and without the Jurisdiction. 495. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service, or whereof notice in lieu of service is to be given, out of the jurisdiction; and a writ for service, or whereof notice in hen of service is to be given) out of the juns- * (170) The misdescription of the resi- dence of a defendant, whereby he is alleged to be resident within the jurisdiction, whilst he is in fact resident out of the jurisdiction, is not a sufficient ground for setting aside a writ tn personam intended for service as soon as the defendant shall come within the juris' diction. The Hdenslea, The Catalonia, 7 P. *>• 57 ; 4 Asp. 594. PRACTICE. Pt. II. In the High Court. Cap. 8. 1513 diction may be issued and marked as a concurrent -writ with one for service within the jurisdiction. Ibid. r. 2, No. 41. 9. Renewed — . 496. No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date ; but if any defen- dant therein named shall not have been served therewith, the plaintiff may, be- fore the expiration of the twelve months, apply to the court or a judge for leave to renew the writ, and the court or judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such re- newal inclusive, and so from time to time during the currency of the renewed writ. And the writ shall in such case be re- newed by being marked with a seal bear- ing the date of the day, month, and year of such renewal ; such seal to be provided and kept for that purpose at the proper office, and to be impressed upon the writ by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in Form No. 18 in Ap- pendix A., Part I., with such variations as circumstances may require ; and a writ of summons so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other pur- poses, from the date of the issuing of the original writ of summons. Ord. VIII. r. 1, No. 45. 497. The production of a writ of sum- mons purporting to be marked with the seal of the court, showing the same to have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commence- ment of the action as of the first date of such renewed writ for all purposes. Ibid. r. 2, No. 46. 498. For form of order for renewal of writ, see E. 8. 0. 1883, Appendix K., No. 22. ^ * (171) This rule was probably made to provide a mode of procedure in lieu of ap- pearance under protest. Mr. Wilson appears ™ .think that appearance under protest in Admiralty actions is probably not abolished, and cites The Vivar (2 P. D. 29 ; 3 Asp. N.S. 308), where it was so held under E. S. C. 1875, but he refers to the above rule as an p. 10. Lost—. 499. Where a writ, of which the pro- duction is necessary, has been lost, the court or a judge, upon being satisfied of the loss, and of the correctness of a copy thereof, may order that such copy shall be sealed and served in lieu of the original writ. Ord. VIII. r. 3, No. 47. 500. As to amendment when required of lost writ, see No. 489, supra. 11. Service. See c. 12, ss. 5, 6, pp. 1524—1527. 12. Motion to set aside Service. (a) Generally. 501. A defendant, before appearing, shall be at liberty, without obtaining an order to enter, or entering, a conditional appearance, to serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorizing such service. Ord. XII. r. 30, No. 100 * (b) Previous Practice. 502. The practice in the Admiralty Court of entering an appearance under protest was not abolished by the Judica- ture Acts or Eules prior to those of 1883. The Vivar, 2 P. D. 29 ; 35 L. T. 782 ; 25 W. E. 453 ; 3 Asp. N.S. 808 ; The Cat- terina Chiazzare, 1 P. D. 368 ; 45 L. J. P. D. & A. 105 ; The Pieve Superiore, L. E. 5 P. 0. 482 ; 43 L. J. Adm. 20. 503. Where a defendant objected to the jurisdiction of the court in a cause in rem by a petition or protest, the old practice of the court as to proceedings under pro- test was required to be followed. The Evangelistria, 3 Asp. N.S. 264. 504. Where a party objected to the jurisdiction of the court, the proper course was to appear under protest. Where the jurisdiction was not denied, but only its application to the case in question, the proper course was a plea in bar. The Sarah Jane, 7 Jur. 659 ; The Alexander, 1 W. Eob. 293. 505. Held, that an appearance under protest, which was in the nature of a plea alternative proceeding. See Wilson's Jud. Acts and Eules, 4th ed. pp. 203, 208. (172) For the old practice as to appearances under protest, see 2 Browne's Civil and Ad- miralty Law, 2nd ed. 407. For form of peti- tion and answer, see Eoscoe's Adm. Prac. App. p. 510. 5 E 1514 PRACTICE. Pt. II. In the High Court. Cap. 9. in bar, was the proper form of raising an objection to the jurisdiction of the court. The Alexander, 1 W. Eob. 293. 505a. But that such an appearance was only to be given where there was a real question as to the jurisdiction. The Pro- tector, ibid. 62. 506. Held, that a question of jurisdic- tion should be raised by an appearance under protest. It was doubtful whether a party omitting to take the objection in the first instance could be permitted to raise it afterwards. The Helgoland, Swa- bey, 496 ; The Cargo ex Sultan, ibid. 509. 507. A question of jurisdiction ought always to be raised in the first instance, and if not, it was not properly raised before the court. The David (1840), 9 Monthly Law Mag. (Notes of Cases), 209. •508. An objection to the jurisdiction might be raised at any time pending the cause. The Mary Ann, 34 L. J. Adm. 73 ; 12 L. T. N.S. 238 ; The Empire Queen, L. E. 3 Eq. 71 ; 3 Asp. 221 ; The Lady Clermont, 3 Asp. 508. [Irish.] 509. An objection to the jurisdiction should be taken in the first instance. An absolute appearance once given could not be recalled. A vessel was arrested in a suit for wages, and a practitioner ap- peared for the owner, undertook to give bail, and at his petition a supersedeas was decreed. Held, that this was an absolute appearance, and that it was too late for the owner afterwards to appear under protest. The Blakeney, 5 Jur. N.S. 418; Swabey, 428. 510. An objection to the jurisdiction of the court might be taken at any time ; but it was more usual and convenient to do so at the commencement of proceed- ings. The Ida, 1 Lushington, 8. 511. When the court had no jurisdic- tion it would hold its hand at any stage of the proceedings whenever want of jurisdiction was shown. The Eleonore, 33 L. J. Adm. 19. 512. Objection to the jurisdiction of the court on the ground that the property salved is under £1,000, should be taken by appearance under protest. An ab- solute appearance was given, and the objection was taken in answer to the petition. The court sustained the ob- jection but refused costs. The Louisa, 9 Jur. N.S. 676. 513. Mere formal objections to juris- diction were not allowed to be taken after an absolute appearance given. The Bil- bao, 1 Lushington, 149 ; 3 L. T. N.S. 338. 514. A foreign master sued in the Ad- miralty Court a foreign owner for wages. The owners appeared under protest, on the ground that the consul's consent had not been obtained to the institution of the suit. Semble, appearance under pro- test in such a case improper, as the court possessed jurisdiction if it thought proper to exercise it. The Franz and Elite, 5 L. T. N.S. 290. 515. In a cause of collision claim of exemption from responsibility for damage on the ground of a licensed pilot being on board is matter of defence, and not of protest to the jurisdiction. The Elka Jane, 3 Hagg. 337 ; The Girolamo, ibid> 173; The Gladiator, ibid. 340; The Pro- tector, 1 "W. Eob. 62 ; The Evangelistria, 3 Asp. N.S. 264. See also The Lady Clermont, 3 Asp. 508 ; The Empire Queen, T. E. 3 Eq. 71 ; 3 Asp. 221. [Ibish.] 13. Costs of improper Forms. 516. See tit. Costs, p. 347. 9. Proceedings other than by Writ. 1 . Generally. 517. The rules in Ord. IV._ (as to the names and address of the plaintiff or his solicitor being required to appear on the writ) apply to all cases where proceedings are commenced otherwise than by writ of summons. See Ord. IV. r. 4, No. 22* 518. In the E. S. C. of 1883, the term " originating summons" means a summons by which proceedings are commenced * (173) This order appears to apply to Chancery proceedings. (See Wilson's Jud. Acts and Rules, 4th ed. p. 181.) But it might' be a convenient mode of procedure in the Admiralty Division in cases under sects. 50 and 65 of the M. S. Act, 1854 (c. 104), and sect. 12 of the Admiralty Court Act, 1861 (c. 10), as to delivery up of a ship's certi- ficate, of registry, see tit. Ownees, It 1- Nos. 305, 306, p. 1213, and Nos. 311—319. p. 1213; and as to orders prohibiting trans-- fers of ships or shares thereof, and ord *^J; sale on unqualified owner becoming «""*' ' Ibid. Nos. 228—238, p. 1204. PRACTICE. Pt. II. In the High Court. Caps. 10 &U. 1515 ■without writ. See Ord. LXXI. r. 1, No. 1041. 519. As to proceedings on originating summons in the Chancery Division, see Ord. LV. Nos. 782—786. 2. Against Third Parties. See c. 6, s. 6, p. 1500, and c. 21, p. 1560. 10. Disclosure by Solicitors and Plaintiffs* 520. Every solicitor -whose name is in- dorsed on any writ of summons shall, on demand in writing by or on behalf of any defendant served therewith, or who has appeared thereto, declare forthwith in writing , whether such writ has been issued by him or with his authority or privity ; and if it has not been so issued, all proceedings upon the writ shall be stayed, and no further proceedings taken without leave of the court or a judge. See Ord. VII. r. 1, No. 42. 521. When a writ is sued out by part- ners in the name of their firm, the plain- tiffs or their solicitors shall, on similar demand in writing of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is brought. And in the event of failure to do so all proceedings in the action may be stayed upon such terms as the court or a judge may direct. "When the names of the partners are so de- clared, the action shall proceed as if they had been named as plaintiffs in the writ. But all proceedings shall continue in the name of the firm. Ibid. r. 2, No. 43. 522. For form of order for such par- ticulars, see R. S. C. 1883, Appendix K. No. 11. 523. An objection to an action on the ground of non-production or insufficient proof of a proxy is a preliminary objec- tion to be taken on motion, andthe proper course for a court of vice-admiralty in such circumstances is to stay the proceed- ings until sufficient evidence is produced, and not to allow the cause to proceed to a hearing, and then dismiss the action on the ground of no sufficient proof of the proxy. The Euxine, 8 Moore, P. C. C. N.S. 190. 524. A practitioner of the Court of Admiralty, who appeared in a salvage action for the master, owners, and crew of a steamer, the asserted salvors, who were condemned in costs, having been ordered to set forth his client's names, brought in the register of the steamer, from which it appeared that Mr. E. was sole owner, against whom an order was thereupon made and served, on which he appeared and alleged that the original action had been instituted without his sanction or knowledge, and he was there- upon dismissed. On motion subse- quently the practitioner condemned in the costs of the original action, of the order against the owner, and of the motion. The Wilhelmine, 1 "W. .Rob. 335 ; 2 Notes of Cases, 213. See also No. 376, p. 1502. 11. Warrants of Arrest. 1. Generally. f 525. In Admiralty actions in rem a warrant for the arrest of property (in the Form No. 17 in Appendix A., Part I., with such variations as circumstances * (174) By the practice of the Ecclesiastical Courts, proxies were and still are exhibited by the proctors. (175) ^ proxy is a document in a specific form, signed by the party, and attested by two witnesses, authorizing the proctor to ap- pear and prosecute, or defend the suit, as the case may be. (176) Anciently the law appears to have been the same in the Admiralty Court. See. Clerke's Prax. Adm. 13, 15; The Whilelmine, 1 W. Rob. 337, 340; 2 Notes of Oases, 216; The ffaidee, 1 Notes of Cases, 597 ; The Dum- friesshire, Stuart's Vice -Adm. Eep. 245. [Lower Canada.] (177) But the practice fell into disuse, and it came to be held that a proctor in the Ad- miralty Court, if called upon for a proxy, satisfied the law by stating the name of the party for whom he was authorized to appear. Harvey v. The Owners of the Euxine, 41 L. J. Adm. 17 ; L. E. 4 P. 0. 8 ; 8 Moore, P. C. C. N.S. 190; 1 Asp. N.S. 155. (178) In a cause of possession instituted by a majority of the owners to dispossess the master, the court refused at the hearing to listen to a suggestion that certain of the owners had not authorized the proceedings taken on their behalf, the defendant's remedy being to call for a proxy in an early stage of the cause. The New Draper, 4 C. Bob. 290. t (179) The citation of the parties inte- rested, which was formerly embodied in the warrant, is now contained in the writ of summons. (180) The practice created by the Eules 5 E 2 1516 PRACTICE. Pt. II. In the High Court. Cap. 11. may require) may be issued at the in- stance either of the plaintiff or of the de- fendant at any time after the writ of summons has issued, hut not until the affidavit hereafter referred to has been filed. Ord. V. r. 16, No. 38. 526. The mode of initiating an action by the arrest of a ship, " her tackle, ap- parel, and furniture," is the ancient for- mula of the court, and such -words, not- withstanding the narrowness of their terms, affect all the property of every kind belonging to the owners, as far as the general law limited by statute ex- tends. The Dundee, 1 Hagg. 124. 526a. The warrant of the court will ex- tend to sails and rigging taken on shore for the purpose of safe custody as well as to the ship itself. The Alexander, 1 Dod- son, 282. 527. The arrest of a ship in a cause of wages, after the company to which the ship belonged was ordered to be wound up, held, a sequestration within the meaning of the 163rd section of the Companies Act, 1862 (c. 89), and conse- quently void. In re The Australian Direct Steam Navigation Co., Ex parte Baker, 44 L. J. Ch. 676 ; L. E. 20 Eq. 525. See also Nos. 1122 et seq., infra. 527a. Semble, in such a case the claim- ant should take out a summons in the. Chancery Division, asking that the pro- perty, subject to the lien, may be realized, or security given for the amount alleged to be due ; or, if there are other parties interested over whom the Court of Chan- cery in the winding-up action has no jurisdiction, that the claimant may have leave to proceed in the Admiralty Division against the ship, in re The Rio Grande Do Sul Steamship Co., 5 C. D. 282; 46 L. J. Ch. 277. 528. T., the master of a ship belonging to a company, drew a bill on the company for necessaries supplied to the ship.' The bill was duly accepted, but afterwards dishonoured. T. paid the bill, and claimed repayment from the mortgagees, who had taken possession of the ship. On the following day an order was* made for winding-up the company. T. then ap- plied in the winding-up for leave to take proceedings in the Admiralty Court, and obtained an order accordingly. ', The liquidator applied to discharge this order, and an order was made requiring him to pay into court £150 to meet T.'s claim, and, without prejudice to any application by T., to increase the amount, T. under- taking not to proceed further in the Ad- miralty Court. The money was paid in, and Orders of 1859, of detainers in lieu of warrants in certain cases, is now abolished. (181) If, however, the property has already been arrested in one action, a writ in rem in a second action will suffice, even in proceed- ings by default ; but the solicitor for the plaintiff in the second action should, how- ever, take care at the time of taking out the writ in rem to cause a caveat against the release of the property to be entered in the registry, otherwise the property may, on being released in the first action, escape from the jurisdiction of the court. (182) The old warrant of arrest from the Court of Admiralty, in force before the rules and orders under the Judicature Acts, was notice to all the world of the subsequent proceedings. Attorney-General v. Norstedt (1816), 3 Price, 109; The Dowthorpe, 2 W. Eob. 80. (183) It called upon all persons who had an interest to appear and show cause, and a party in possession not having appeared, and the vessel having been sold by the court, the party was held to have acquiesced in being so dispossessed. The Neptune, 3 Hagg. 132. (184) It seemed doubtful at one time whether, when cargo ceased to be water- borne, it was any longer amenable by arrest in the first instance to the jurisdiction of the Admiralty Court. See The Two Friends, 1 0. Eob. 282 ; 2 Browne's Civil and Adm. Law, 2nd ed. 48 ; Godb. 260 ; Sir L. Jen. vol. i. 82. (185) But the practice to arrest on land is now well established. (186) As to cargo stored in the London and Liverpool docks, however, provision has been made by acts of parliament, that property stored in them shall be considered to be under the same liabilities as if on board ship. For such provisions, see, as to the Thames, 9 & 10 Vict. c. cccxcix, made perpetual by i0 & U Vict. c. 200 ; as to the Mersey, the Mersey. Dock Acts Consolidation Act, 1858 (c. 92), s. 193; and the Merchant Shipping Act Amendment Act, 1862 (c. 63), s. 78. (187) For an order of the judge of the Admiralty of 11 Dec. 1714, for warrants to be sealed with the seal of the Lords' of the- Admiralty, see Marsden's Bep. p. 303. (188) As to the arrest of the defendant ne exeat regno, under sect. 6 of the Debtors Act, 1869 (c. 62), see B. S. C. Ord. LXK. Nos. 1030—1036, andWilson's Jud. Acts and' Rules, 4th ed. pp. 563—565. (189) As to warrants of arrest in the' American Admiralty Courts, see Dunlaps Adm. Prac. 2nd ed. 134. [American.] (189a) As to arrest of vessels in the French courts, see tit. Jumsdiotion in Ad- denda, Pt. IV. c. 8. PRACTICE. Pt. II. In the High Court. Cap. 11. 1517 and T. then applied to increase the amount, to cover his costs of defending an action brought against him by the holder of the bill, and his costs of the application in the winding-up. Order made for payment of the amount of the bill to T. out of the £150, and for pay- ment of the residue to the liquidator. On appeal, held, that though, if there had been no mortgagee in possession, the proper mode of enforcing T.'s lien would have been by application in the winding- up (as in In re Australian Direct Steam Navigation Co., supra), the order giving leave to proceed in the Admiralty Court was a proper order, the mortgagees not being parties to the winding-up, and that T. was entitled to all his costs in the winding-up, as costs properly incurred by a mortgagee in enforcing his security; and that the case was not within the rule that an appeal will not lie as to costs. Ibid. 529. A ship, prior to the Eules and Orders of November, 1859, was under arrest at the suit of A. ; a warrant of ar- rest was applied for at the suit of B. Held, that B. was also entitled to a war- rant. The Europa, 13 Jur. 856. 529a. For form of praecipe for warrant, see E. S. 0. 1883, App. A., Pt. I., No. 15. 2. Affidavit to lead — . (a) • Generally. 530. The affidavit to lead the warrant is to be made by the party or his agent, -and shall state the name and description of the party at whose instance the war- rant is to be issued, the nature of the claim or counter-claim, the name and nature of the property to be arrested, and -that the claim or counter-claim has not been satisfied. See Ord. V. r. 16, No. 38* 530a. The court or a judge may allow the warrant to issue, although the affi- davit may not contain all the required particulars. Ibid. r. 17, No. 39. (b) In Actions of Bottomry. 531. In an action of bottomry, the bottomry bond, and, if in a foreign lan- guage, also a notarial translation thereof, shall be produced for the inspection and perusal of the registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit ; but the judge may waive the production of the bond. Ibid.i. 16 (c), No. 38, and r. 17, No. 39. (c) In Actions of Possession. 532. In an action of possession, the affidavit shall state the national character of the vessel proceeded against; and if against a foreign vessel, that notice of the commencement of the action has been given to the consul of the state to which the vessel belongs, if there be one resi- dent in London, and a copy of the notice shall be annexed to the affidavit. Ibid. r. 16(b), No. 38. 533. For form of affidavit to lead war- rant in a cause of possession, see E. S. C. 1883, App. A., Pt. I., No. 14. (d) In Actions of Restraint. 534. See for form of affidavit to lead warrant in a cause of restraint, ibid. No. 13. 534a. As to such actions, see tit. Owners, Pt. YIII, p. 1418. (e) In Actions for Distribution of Salvage. 535. In an action of distribution of salvage the affidavit shall state the amount of salvage money awarded or agreed to be accepted, and the name, address and description of the party holding the same. See Ord. V. r. 16, No. 38.+ (f) In Actions of Wages. 536. In an action of wages the affidavit shall state the national character of the * (190) The affidavit may be made by the plaintiff, or by his solicitor, or by a clerk of the practitioner, such latter parties speak- ing from information and belief. It is de- sirable that the facts should be stated very briefly therein, so as not to disclose prema- turely the particulars of the plaintiff's case. t (190a) It would seem doubtful, notwith- standing this rule, whether a warrant can be obtained in such an action. It would cer- tainly not be issued by the registrar as of course. By the old practice, a monition is- sued against the person in possession of the amount of salvage awarded to bring in the amount and against the other parties inte- rested to see it distributed, and probably the proper course at the present time would be to issue a writ against the other parties in- terested, and to apply on affidavit for an order against the person holding the funds to bring the amount into court, 1518 PRACTICE. Pt. II. In the High Court. Cap. It vessel proceeded against, and if against a foreign vessel that notice of the com- mencement of the action has heen given to the consul of the state to which the vessel belongs, if there be one resident in London, and a copy of the notice shall be annexed to the affidavit. See Ord. V. r. 16, No. 38. 537. But the judge may waive the service of the notice. Ibid. No. 39. 3. After Caveat Warrant. 538. As to caveats against issue of ■warrants, see Pt. I. p. 1477. 539. A solicitor, commencing an action against any property in respect of which a caveat has been entered in the "Oaveat Warrant Book," shall forthwith serve a copy of the writ upon the party on whose behalf the caveat has been entered, or upon his solicitor. Ord. XXIX- r. 14, No. 335. 540. Within three days from the ser- vice of the writ or copy thereof, the party on whose behalf the caveat has been en- tered shall, if the sum in respect of which the action is commenced does not exceed the amount for which he has undertaken, give bail in such sum, or pay the same into the registry. Ibid. r. 15, No. 336. 541. After the expiration of twelve days from the filing of the notice in Eule 12 mentioned, if the party on whose be- half the caveat has been entered shall not have given bail in such sum, or paid the same into the registry, the plaintiff's solicitor may proceed with the action by default, and on filing his proofs in the registry may have the action placed on the list for hearing. Ibid. r. 1 6, No. 337 . 541a. If, when the action comes before the judge, he is satisfied that the claim is well founded, he may pronounce for the amount which appears to him to be due, and may enforce the payment thereof by- attachment against the party on whose behalf the caveat has been entered, and by the arrest of the property, if it should then be or should thereafter come within the jurisdiction of the court. Ibid. r. 17, No. 338. 542. Nothing in this order shall pre- vent a solicitor from taking out a warrant for the arrest of any property, notwith- standing the entry of a caveat in the " Caveat Warrant Book;" but the party, at whose instance any property- in respect of which a caveat is entered shall be ar- rested, shall be liable to have the warrant discharged and to be condemned in costs and damages, unless he shall show, to the satisfaction of the judge, good and suffi- cient reason for having so done. Ibid. r. 18, No. 339. 4. Mode of obtaining—?.* 5. Property liable.^ (a) Generally. 543. The warrant against the ship ex- tends to its sails and rigging, though detached from it and ashore. The Alex- ander, 1 Dodson, 282. (b) Personal Baggage.%' 544. The wearing apparel and other personal articles of passengers are privi- leged from arrest in a salvage suit. The Willem III., L. E. 3 A. & E. 487 ; 25 L. T. N.S. 386. * (191) Bespeak warrant by filing notice and blank form of warrant, with impressed stamps to the amount of 15s. on the notice. SeeB. S. C. Fees, 1884, No. 13. Forms of warrant and notice may be obtained at the Boyal Courts, Boom No. 420. (192) The warrant is prepared and sealed in the registry immediately on the notice being filed. (193) It is usual to insert, when practi- cable, m the notice and warrant, the name of the port to which the vessel proceeded against belongs, as, when the ship's name is a common one, the addition of the port serves to prevent any mistake in the identity of the vessel. t (194) Parties may have in the Court of Admiralty the same remedies against the pro- ceeds of property subject to its jurisdiction that they are entitled to against the property itself, in whose hands soever the proceeds may be found. Mutual Safety Insurance Co. v. Cargo of tlie Brig George, Oloott, Adra. 89, 157. [American.] % (195) It seems that personal baggage is not liable to arrest: If arrested, therefore, with cargo, the 'plaintiff's solicitor, on being applied to by the owner, and satisfied that the property is personal baggage and not merchandize, may direct the marshal Dy notice in writing to release it, which is done by him accordingly without any formal re- lease being applied for or obtained through the registry. The Vulture, Oct. 1860. (196) The wearing apparel of the master and seamen is excepted from the allowance of salvage. 1 Park on Ins. 327; Lex Merc. 147. PRACTICE. Pt. II. In the High Court. Cap. 11. 1519 (c) Cargo.* h±5. In no case has the court arrested cargo for the purpose of making good the damage done by the ship in which it was conveyed. It makes no difference that the vessel doing the damage happens to be foreign. The Victor, 29 L. J. Adm. 110; 2 L. T. N.8. 331 ; 1 Lush. 72. 546. But see contra, lomlinsonv. Voguel, The Eleanor, and The Wilhelmina (anno 1733), Marsden's Eep. 313. 547. Eelease to the arrest of the cargo decreed, with costs and damages incurred by the detention. Ibid.] 548. When warrants of cargo have been passed by delivery prior to arrest of cargo, dock authorities or others holding cargo cannot after arrest thereof transfer it to the parties claiming it under war- rants so purchased by them. Such pur- chasers take the cargo subject to all legal liens thereon. The Abeona, 17 June, 1859. (d) Freight. (aa) Generally.^ 549. The Oourt of Chancery appointed certain persons receivers of a freight, which," before they had obtained posses- sion, was arrested in a suit in the Court of Admiralty. On motion in the latter court, on behalf of the receivers, release decreed, but without costs. The Bloomer, 2 Asp. 147. (bb) In Collision Actions. 550. The freight due to the owners of a ship doing damage by collision is, together with the ship itself, liable to arrest in respect of the damage. The Leo, 6 L. T. N.S. 58 ; 31 L. J. Adm. 78 ; The Orpheus, L. E. 3 A. & E. 348 ; 40 L. J. Adm. 24 ; The Roecliff, L. E. 2 A. & E. 363; 3 Asp. 243; 38 L. J. Adm. 56. But only freight due or to grow due, not freight earned on a previous voyage. The Brodrene, 26 February, 1885 ; see also The Mellona, 3 W. Eob. 25. 551. A plaintiff in a cause of damage by collision may arrest the cargo in order to obtain payment of the freight due, but if no freight is actually due the cargo must be released. The Flora, L. E. 1 A. & E. 45 ; 35 L. J. Adm. 15 ; 2 Asp. 325.§ 552. A vessel under charter-party as to both her outward and homeward cargo, whilst on the outward voyage came into collision with another vessel. Held, that the freight for the homeward voyage was liable to arrest for the damage. The Orpheus, 40 L. J. Adm. 24 ; L. E. 3 A. & E. 308. See also Nos. 179—187, p. 1482. (cc) In Wages Actions. 553. By the Admiralty law the mariners may arrest the ship, and semble the freight, for their wages. Neclanham v. Foljamb and another (12 Ann.), 6 Vin. Abr. 439. 554. Seamen may arrest the freight as well as the ship for their wages, and if the latter only is in the first instance ar- rested by them, and it appears that there are bottomry claims thereon, they may afterwards apply to have the freight arrested, and the court would be bound, ex debito justitice, to grant such a motion. The Mary Ann, 9 Jur. 94. 555. A mariner has no lien for wages on the cargo as cargo; his lien is upon the ship to the last plank, and upon the freight as appurtenant thereto ; and so far as the cargo is subject to freight, he may attach it as security for the freight that may be due. ■ Qurnre, whether on the loss of a ship if any cargo were saved, it could be held to represent the freight ? The Lady Durham, 3 Hagg. 200, 201. 556. Against the cargo, qua cargo, the seaman can have no claim for his wages, but quaere, as to his claim against cargo where freight has been earned, though * (197) Proceedings against cargo, gtid cargo, can only be instituted in particular actions, and under particular circumstances, i.e. in bottomry and respondentia actions, where the cargo forms part of the property hypothecated, and in salvage actions, where it forms part of the property salved. t (198) After judgment cargo belonging to the shipowner would, of course, be liable in execution like any other part of his property. t (199) The practice of arresting freight in actions of damage by collision grew out of the limitation in the earlier statutes of the liability of owners to the value of ship and freight, and the practice still continues. § (200) It seems to be considered that the plaintiff in a collision action has a maritime lien on it, and in cases where the ship is insufficient to realize £8 per ton, and still more so in such a case where the ship is foreign-owned, greater security is by the practice given to the plaintiff towards re- covering as near £8 per ton as possible, but these reasons would not apply in cases of large steamers of a value greater than £8 per ton. 1520 PRACTICE. Pt. II. In the High Court. Cap. 11. not paid, and where the owner of the ship is the owner of the cargo, and the ship is lost but the. cargo saved. The Riby Grove, 2 Eob. 59. 6. As against Sheriff.* 557. "Where a ship was seized by Ad- miralty process and decreed to be sold, but between the seizure and the decree a writ of execution issued against the owner at the suit of another creditor, held, that the sheriff could not take the vessel, nor maintain trover against the officer of the Admiralty. Ladbroke v. Crickett, 2 T. R. 649 ; and see Buggin v. Bennett, 4 Burr. 2035 : 8. P. Blacquiere v. Haw- kins, 1 Dougl. 378. But aliter, where the sheriff was first in possession. Clarke v. The Fairfield, Marsden, Eep. 252. 558. A rule nisi for the marshal of the Admiralty or his deputy to pay over to the sheriff certain proceeds of sale of a ship sold under a decree of the High Court of Admiralty, whilst in possession of the sheriff under a fi. fa. for satis- faction of a judgment debt, discharged {semble, as improperly applied for against the officer instead, of against the court). The Flora, 1 Hagg. 300. 559. Upon the sale of a ship in a suit for wages by Admiralty process issuing after the seizure of the same vessel by the sheriff under a writ of fieri facias, held, that the claim of the sheriff to the surplus proceeds in discharge of his exe- cution was good as against the late owner of the ship. Ibid. 7. Service. See c. 12, p. 1527. 8. Filing after Service. 560. The solicitor issuing the warrant shall, within six days from the service thereof, file the same in the Admiralty registry. See Ord. IX. r. 11, No. 58. 9. Priority over other Liens. 561. As to the priority of arrest and other liens, see tit. Liens, c. 3, s. 5, p. 814. 10. Removal of arrested Property. 562. The court, on good cause being shown for it, will allow property arrested to be removed to a place of greater secu- rity, on a policy of insurance to the amount of the action to cover all loss or damage in the removal being deposited in the registry. The St. Nicholas, 18th Nov. 1859; and see The Lady Kennaway, January, 1848, and The Earl Grey, May, 1848; The Cargo ex Galem, No. 680, 30th May, 1861.f 563. "When all parties interested concur in the application, the order will be made almost as of course. The St. Nicholas, 18th Nov. 1859. 564. When the application is opposed, or the proceedings are by default, the court will grant the application for suffix cient cause. Ibid. 565. Ship arrested in Portland roads in a cause of salvage in the sum of £7,000. The owners appeared without giving bail. Motion on their behalf for a commission of removal of the ship from Portland roads to Southampton supported by affidavits that the ship was 797 tons register, was in a damaged state, that Portland roads were not a safe anchorage for a vessel of her size and in her condi- tion, that it would be necessary to unload her cargo for the repairs, that there were no docks in the neighbourhood, and that she could be docked and unloaded with facility at Southampton. The motion was opposed by the salvors, but was granted by the court on a policy of in- surance to the amount of the action, and to cover total and partial damage and loss being deposited in the registry. Ibid. 566. A commission of removal of prize having been decreed at the prayer of the actual captor without opposition, a sub- sequent motion to the court on behalf of an asserted joint-captor not to permit the commission to issue, rejected, as made on insufficient grounds, and as not having * (201) It seems that the priority of title would depend upon the priority of arrest. £202) As to an action for wages against a ship in custody of the sheriff under a fieri facias, and the liability of the ship under the same, subject to the claim of the execution creditor, see 2 Chitty's Gen. Prac. 521, and Taylor v. Garryl, 20 How. U. S. 583; Keat- ing v. Spink, 3 Ohio N.S. 105. [Ameeican.] t (203) The insurance is effected in the name of the marshal (who now executes all such commissions). The marshal may appoint a master to act for him. See Coote's Admi- ralty Practice, 16. (204) If it is necessary to unlade and warehouse a cargo arrested on hoard a vessel, the court, on good cause being shown, will decree a commission of unlivery for that purpose, directed to the marshal. Ihid. 17. PRACTICE. Pt. II. In the High Court. Cap. 11. 1521 been made at the time of the decree, the port where the prize was lying not being a convenient one, and that to which it was proposed to remove her being a convenient one. But semble, that had the proposed port of removal been unsuitable, or had the actual captor acquiesced distinctly in the bringing in of the prize to the then port, the court would not have refused such an application. The Sacra Familia, 5 0. Eob. 360. 567. As to commission of removal of arrested property, see Commission of Ap- praisement, c. 44, s. 7, infra. 568. As to the duties and responsibili- ties of parties executing a commission of removal, see The Rendsburg, 6 0. Rob. 154. 569. A breach of arrestment is not ne- cessarily a contempt of court. A master having removed a vessel with the con- sent, as he merely supposed, of the ar- rester to another place within the juris- diction, a petition to punish him as for contempt of court dismissed. Inglis v. Smith, Cases in the Court of Session, 3rd Series, vol. 4, 320. [Scotch.] See also No. 574, infra. 11. Rescue.* 570. If a ship is arrested by process out of the Court of Admiralty, for a mat- ter arising within its jurisdiction, though rescued at land, the conusance of the rescue belongs to the Admiralty. Rigden v. Hedges (1697), 1 Ld. Eaym. 446; 1 Vent. 1 ; Sti. 171 ; 6 Viner's Abr. 536. 571. And the Court of Admiralty might reseize her on land and out of its juris- diction. Ibid., and 12 Mod. 246. 572. If the officer of the court is forcibly ejected from possession of a vessel, the court will issue an attachment against the person ejecting him and all others assist- ing. The Bure, 14 Jur. 1123 ; The King in his Office of Admiralty v. Lane, Mars- den's Eep. (anno 1766), pp. 14, 85. 573. It is the duty of all parties who are in possession of a ship under the authority of the Court of Admiralty to give the earliest intimation to the court of any attempt at an infringement of its authority. The court will always hear a motion where its authority is attempted to be evaded. The Westmoreland, 4 Notes of Cases, 173. 574. Where the marshal sends by tele- gram to his substitute at an outport notice of the issue of a warrant, and such sub- stitute communicates it to the master of the ship against which it is issued, it is a contempt of court to move the ship. The Seraglio, 10 P. D. 120; 54 L. J. Adm. 76 ; 52 L. T. 865. 574a. A vessel was under arrest in the Court of Admiralty in a cause of bot- tomry, and a distress was levied by magistrates at the suit of the seamen for wages, under 7 & 8 Vict. c. 112, s. 15, by authority of which, notwithstanding notice from the officer in possession, the tackle, apparel, and furniture were sold. The court made an order against the auctioneer, to show cause why an attach- ment should not issue against him for removing the same, and he thereupon restored them. Ibid. 575. Motion for attachment against a harbour-master, for seizing and carrying off, for non-payment of harbour dues, portions of the rigging and stores of a ship under arrest, in the custody of the officer of the court, granted, and attach- ment decreed accordingly. The Harmonie, 1 W. Eob. 179 ; 6 L. T. N.S. 915. 576. Order made to show cause why an attachment should not issue for a con- tempt in taking the cargo of a derelict from a warehouse in which it had been deposited by the agents of the Admiralty. Motion on a Ship unknown, 1 C. Eob. 331. 577. A vessel was arrested at suit of a part owner, and an appearance given for the master and owner of the other moiety. Shortly afterwards, the master, with the assistance of the mate and six others, took forcible possession of the ship, and carried her to Jersey, where she was arrested for a debt due from the master, and sold to A. B. The court, on motion, decreed an at- tachment against the master and mate, and made order against A. B., who had (205) Order made against the master of al, to show cause why an attachment should not issue against him for contempt in taking his vessel, which had been arrested by the court, out of its jurisdiction. The Friends, Stuart's Vice-Adm. Eep. (Lower Canada), 72; The Delta, ibid. 207. (206) "When the infringement of the court's authority is by official persons, acting under some semblance of law, the court -will first make an order against them to show cause why an attachment should not issue, but when the infringement is of a more flagrant character an attachment will be directed to issue in the first instance. 1522 PRACTICE. Pt. II. In the High Court. Cap. 11. assisted in such illegal seizure, and five others, to show cause why they should not be attached for joining in such seizure. A new warrant of arrest against the vessel was at the same time moved for, but no order was made by the court thereon. A. B., and C. D., his son, one of the parties, moved the court to dismiss them from the effect of the order, but the ap- plication being opposed, and an attach- ment moved tor, the court decreed an attachment against A. B. as having pos- session of the vessel, but dismissed C. D., on the ground that the application should have been sooner followed up, and that he was not one of the principal offenders. The mate, after two months' imprison- ment, petitioned the court to be released, on the ground that he acted in ignorance, under the master's orders, and had a sick wife and aged mother dependent on him, and acknowledging his misconduct. His petition was not opposed, and the court decreed his discharge. The Petrel, 3 Hagg. 299. 578. A warrant was served upon an American vessel (against which there was a claim for necessaries) whilst she was within the jurisdiction of the court. The master, however, refused to surrender and sailed away. The court gave leave to the plaintifEs to file their proofs, and to set the cause down for hearing, and upon proof of the facts condemned the vessel in the claim and costs. The Lady Bles- sington, 34 L. J. Adm. 73. 12. Amendment.* 579. In the praecipe to institute a cause in rem the cause of action was improperly stated to be "a cause of da- mage to cargo," but in the affidavit to lead the warrant was properly stated to be a breach of duty and breach of con- tract on the part of the master and crew of the vessel proceeded against. The vessel was arrested and an appearance entered on behalf of the owners. On motion leave given to amend the praecipe accordingly upon payment of costs. The Princess Royal, L. E. 3 A. & E. 27 ; 39 L. J. Adm. 29.f 13. Re-arrest, 580. "When a ship has been released on bail she may be re-arrested in other actions by different -parties for damage arising out of the same collision. The Clara, Swabey, 7; 2 Jur. N.S. 46; 26 L. T. 165; The Tuscarora, 6 Feb. 1858; The William Hutt, 1 Lushington, 26; The Wild Ranger, 7 L. T. N.S. 725. 581. The court has jurisdiction to issue a second arrest in respect of the same cause of action, but it is a power which should be cautiously exercised, and gene- rally only after an application to the court itself. The Flora, L. B. 1 A. & E. 45 ; 35 L. J. Adm. 14 ; 2 Asp. 324. 582. After property arrested had teen released on bail the plaintiff re-arrested, the defendant having consented to the amount of the action being increased, the court made an order, allowing the re-arrest to stand, but cancelling the bail-bond, and directing that the value of .the ship (which had been repaired since the release) should be estimated as from the time of the first arrest. Ibid. L. E. 1 A. & E. 45. 583. The judge of a county court having dismissed a suit in rem the vessel was released. The plaintiffs having ap- pealed, held, that they were entitled to a warrant to re-arrest the vessel, but that before doing so they must give notice. The Miriam, 43 L. J. Adm. 35 ; 2 Asp. N.S. 259. 584. In cross causes of damage the judge of the county court found that one ship was not to blame, and ordered it to be released. An appeal was instituted, and on motion by the appellants it was ordered that the ship be re-arrested, and (being a foreign vessel) without notice to the owners. The Freir, The Albert, 44 L. J. Adm. 49 ; 2 Asp. N.S. 589. 585. In a cause of damage to cargo against a foreign vessel bail was given to the amount of £500, and the vessel was released. At the hearing the defendants were condemned in damages and costs, but it was found that the sum of £500 was insufficient to cover the plaintiffs costs after payment of the damages. On * (207) Amendment in a warrant will not be allowed for an error not apparent in the acts and proceedings in the suit. The error to be amended must, in order that it may be allowed, appear manifestly to be an error by the proceedings themselves, and other things done in the cause.' The Aid, Stuart's Vice- Adm. Bep. 210 (Lower Canada) ; Oughton's Ordo. Jud. tit. 59, s. 5. t (207a) This was before the institution of writs in Admiralty proceedings. (208) Warrant to arrest the ship Aid granted, and the ship Eight arrested under it. Motion to amend the warrant by sub- stituting the name Eight for Aid, refused. Ibid. PRACTICE. Pt. II. In the High Court. Cap. 11. 1523 motion, by the plaintiffs the court, Tinder the provisions contained in the 15th and 22nd sections of the Admiralty Court Act, 1861, directed the re-arrest of the vessel for the balance of costs still due. The Freedom, L. E. 3 A. & E. 495 ; 41 L. J. Adm. 1 ; 1 Asp. N.S. 136; 25 L. T. N.S. 392. 586. For the form of -warrant issued, see ibid. p. 136, n. 587. Semble, where a vessel is already under the arrest of the High Court of Admiralty it is not necessary to arrest her in suits instituted in an Admiralty county court. The Turliani, 2 Asp. N.S. 603. 588. It is a matter for the discretion of the court to order the re-arrest of a ship after bail has been given. The Southern Empire, 8 March, 1867. 589. An action of damage by collision was instituted in £20,000. The 8. E. was not arrested, but bail was given by arrangement in £7,200. The S. E. then went a long voyage, during which her owners, and one of the sureties, suspended payment, and the court on the plaintiffs' application issued a warrant, and on her return the vessel was arrested. On motion by the defendants for release of the vessel, and for a condemnation of the plaintiffs in costs and damages, supported by affidavit that since the issue of the warrant the ship had changed owners, and that one of the bail was solvent and had large means, the court ordered a release of the vessel, and condemned the plaintiffs in the costs of the arrest. Ibid. See also c. 4, p. 1494. 14. In Bottomry Actions. 590. The arrest of a ship by the holder of a bottomry bond before the bond was due, held to have been justifiable, on the ground that the ship was going to leave the kingdom. Aliter, had there been an unfounded apprehension only thereof. The Jane, 1 Dodson, 461, 464. 591. See also Pt. III. c. 1, s. 4, Nos. 2133 et seq. 15. In Collision Actions.'* 592. "Whenever any injury has in any part of the world been caused to any property belonging to her Majesty or to any of her subjects by any foreign ship, if at any time thereafter such ship is found in any port or river of the United Kingdom, or within three miles of the coast thereof, the judge of the High Court of Admiralty, upon its being shown to him by any person applying summarily that such injury was probably caused by the misconduct or want of skill of the master or mariners of such ship, may issue an order directed to any officer of customs or other officer named by such judge, requiring him to detain such ship until the owner, master, or consignee thereof has made satisfaction in respect of such injury, or has given security to be approved by the judge to abide the event of any action or other legal pro- ceeding in respect of such injury, and to pay all costs and damages that may be awarded thereon, and any officer of cus- toms, or other officer to whom such order is directed, shall detain such ship accord- ingly. See the M. S. Act, 1854 (c. 104), s. 527. 593. In any case where it appears that before any application can be made under the foregoing section such foreign ship will have departed beyond the limits therein mentioned, it shall be lawful for any commissioned officer on full pay in the military or naval service of her Ma- jesty, or any British officer of customs, or any British consular officer, to detain such ship until such time as will allow such application to be made and the re- sult thereof to be communicated to him ; and no such officer shall be liable for any costs or damages in respect of such deten- tion unless the same is proved to have been made without reasonable grounds. Ibid. s. 528.f 594. In any action, suit, or other legal proceeding in relation to such injury, the person so giving security shall be made defendant, and shall be stated to be the owner of the ship that has occasioned * (209) The remedy under this and the immediately succeeding sections of the Mer- chant Shipping Act, 1854 (c. 104), is seldom resorted to m the Admiralty, that court hav- ing inherent jurisdiction, independently of the statute, over foreign vessels in cases of damage by collision. See tit. Collision, p. 193. (209a) The powers given by sect. 528 may, however, be found useful in a case in which there is reason to fear the vessel may leave the country before formal process against her can be obtained. t (2096) It is convenient so to instruct the collector of customs, when instructions arrive too late to obtain a warrant on the same day. 1524 PRACTICE. Pt. II. In the High Court. Cap. 12. such damage, and the production of the order of the judge made in relation to such security shall be conclusive evidence of the liability of such defendant to such action or proceeding. See the M. S. Act, ' 1854 (c. 104), s. 529. 595. Por provisions authorizing any commissioned officer on full pay in the military or naval service of her Majesty, any British officer of customs, or any British consular officer, to detain, until application can be made to a competent court for its arrest, any such foreign ship, ibid. s. 528. 596. Qucere, whether in suing a foreign ship under this section the arrest and action may be according to the ordinary process of the court. The Bilbao, 1 Lush- ington, 149 ; 3 L. T. N.S. 338 ; 1 Asp. 5. 597. Damage done by a foreign vessel to a barge in the river Thames ; arrest according to ordinary process ; absolute appearance and release of vessel thereon ; petition filed; plea, that the barge was not a seagoing vessel within the meaning of 3 & 4 Vict. e. 65, s. 6, and that the court had no jurisdiction. Held, that the court had jurisdiction by sect. 527 of the M. S. Act, 1854 (c. 104), and that after absolute appearance the defendants could not object that the arrest had not strictly followed the course prescribed in that section. Ibid. 16. In Salvage Actions. 598. Salvors have a right to arrest the ship for salvage, at once, to refuse to ne- gotiate, and to have the judgment of the Court of Admiralty as to the extent of re- muneration they ought to receive. The Teutonia, 5 Notes of Oases, Supplement viii. 599. For provisions, in cases of salvage, authorizing receivers of wreck to detain the property salved until payment is made or process for its detention has been is- sued hy some competent court, or security given to the receiver's satisfaction, see M. S. Act, 1854 (c. 104), s. 468. 17. Costs and Damages for improper Arrest. 600. See tit. Costs, p. 369. 12. Service. 1. Generally. 601. An action does not become a lis pendens until after service of the writ. The Helenslea and The Catalonia, 7 P. D. 60 ; RdyY. Sherwood,'! Curteis Eccl. Hep 173, 193 ; 1 Moore, P. C. C. 353. 2. On what Days. 602. In Admiralty actions no instru- ment except a warrant shall be served on a Sunday, Good Friday, or Christmas Day. Ord. LXVII. r. 12, No. 1023. 3. Time of Day. 603. Service of pleadings, notices, sum- monses, orders, rules, and other proceed- ings, shall be effected before the hour of six in the afternoon, except on Saturdays, when it shall be effected before the hour of two in the afternoon. Ord. LXTV. r. 11, No. 971. 604. Service effected after six in the afternoon on any week-day except Satur- day shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday. Ibid. 4. Within what Period. 605. In Admiralty actions every instru- ment shall be served within twelve months from the day on which it bears date, otherwise the service thereof shall not he valid. Ord. LXVII. r. 11, No. 1022. 5. Writ of Summons. (a) Generally. 606. Held, that service of a writ of summons in rem by a solicitor or his clerk, and not by the marshal or his sub- stitute, was a valid service. The Solis, 10 P. D. 62; 54 L. J. Adm. 52; 5 Asp. 368. 607. "When service is required, the writ shall, wherever it is practicable, he served in the manner in which personal service is now made. Ord. IX, r. \ No. 49. 608. No original writ of summons shall be in force for more than twelve months from the day of its date, including that day. See Ord. VIII. r. 1, No. 45. As to the renewal thereof, see ibid, and c. 8, s. 9, p. 1513. 608a. In a second action in rem, where the ship has been sold and the proceed* paid into court, the writ in rem should pe PRACTICE. Pt. II. In the High Court. Cap. 12. 1525 served on the registrar. The Cassiopeia, 4 P. D. 188 ; 48 L. J. Adm. 39* See also No. 770, p. 1542. (b) On Partners. 609. .Where persons are sued as part- ners in the name of their firm, the writ shall he served either upon any one or more of the partners, or at the principal place within the jurisdiction of the busi- ness of the partnership upon any person having at the time of service the control or management of the partnership busi- ness there ; and, subject to these rules, such service shall be deemed good service upon the firm. Ord. IX. r. 6, No. 53. 610. Where one person carrying on business in the name of a firm apparently consisting of more than one person shall be sued in the firm's name, the writ may be served at the principal place, within the jurisdiction, of the business so carried on, upon any person having at the time of service the control or management of the business there ; and such service, if sufficient in other respects, shall be deemed good service on the person so sued. Ibid. r. 7, No. 54. (c) On Corporations or Societies.] 611. As to service of writs of sum- mons against corporations, societies, or fellowships, corporate or unincorporate, Ibid. r. 8, No. 55. (d) On Husband, Wife, Infants, and Lunatics. 612. As to service on husband and wife, when both are defendants, Ibid. r. 3, No. 50. 613. As to service on infants, Ibid. r. 4, No. 51. 614. As to service on lunatics or per- sons of unsound mind, Ibid. r. 5, No. 52. (e) On Third Parties. 615. As to the service of third-party notices like writs of summons, see Ord. XVI. r. 48, No. 170. (f) Solicitors undertaking to accept — . 616. No service of writ shall be re- quired when the defendant, by his soli- citor, undertakes in writing to accept service and enters an appearance. Ord. IX. r. 1, Nos. 48 and 57. (g) Substituted Service.]. 617. If it be made to appear to the court or a judge that the plaintiff is, from any cause, . unable to effect prompt per- sonal service of the writ of summons, the court or judge may make such order for substituted or other service, or for the substitution for service of notice, by ad^ vertisement or otherwise, as may be just. Ibid. r. 2, No. 49. 617a. Every application to the court or a judge for an order for substituted or other Bervice, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made. Ord. X. r. 1, No. 63. 618. Unless the order shall otherwise direct, a copy of the order and of the writ shall be deemed to have been served on the day following the day on which a prepaid letter containing such copy shall have been posted. See C. O. Practice Eules. 1880—1882, in Wilson's Jud. Acts and Eules, 4th ed. p. 847. 619. In an action for the specific per- formance of an agreement to sell a ship, held, that, the defendant being a foreigner out of the jurisdiction, but the ship being within the jurisdiction, substituted ser- vice on the master was sufficient. Hart v. Hcrwig, L. E. 8 Eq. 860 ; 42 L. J. Oh. App. 457 ; 1 Asp. N.S. 572 ; 2 Ibid. Ch. App. 63. 620. Eor form of order for substituted service, see E. S. C. 1883, Appendix K. No. 21. (h) Out of Jurisdiction. § 621. For provisions that service out of the jurisdiction of a writ of summons or * (210) But where the ship is under arrest, the second writ should be served on the ship like the first writ was. t (210a) As to service of writs on corpora- tions, see Wilson's Jud. Acts and Eules, 4th ed. p. 196, and Archbold's Practice (14th ed. by Chitty), p. 235. . % (211) As to what the affidavit in support of an application for substituted service should show, see 2 Archbold's Practice (14th' ed. by Chitty), p. 236. (212) See further as to substituted ser- vice of writ of summons at common law, Ibid. p. 236 et seq. § (213) The distinction created by the Com- mon Law Procedure Act, 1652 (c. 76), ss. 18, 19, now repealed, between service on a Bri- tish subject resident within the jurisdiction, 1526 PRACTICE. Pt. II. In the High Court. Cap. 12. notice of a writ of summons maybe allowed by the court or a judge where any re- lief is sought against any person domiciled or ordinarily resident within the jurisdic- tion ; or where the action is founded on any breach, or alleged breach, within the jurisdiction of any contract wherever made, which, according ' to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scot- land or Ireland ; or where any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction. See Ord. XI. r. 1, No. 64. 622. Or on other grounds not connected with Admiralty proceedings. Ibid. 623. Every application for leave to serve such writ or notice on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that, in the belief of the deponent, the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made. Ibid. r. 4, No. 67* 624. No such leave shall be granted unless it shall be made sufficiently to appear to the court or judge that the case is a proper one for service out of the jurisdiction under this order. Ibid. 625. Any order giving leave to effect such service or give such notice shall limit a time after such service or notice within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given. Ibid. r. 5, No. 68. 626. "Where the defendant is neither a British subject nor in British dominions, notice of the writ, and not the writ itself, is to be served upon him. Ibid. r. 6, No. 69. 627. Notice in lieu of service shall be given in the manner in which writs of summons are served. Ibid. r. 7, No. 70. 628. Por form of notice of writ in lieu of service to be given out of the jurisdic- tion, see E. S. C. 1883, Appendix A. Part 1, Nos. 9 and 10. 628a. As to when a writ will be allowed to be served out of the jurisdiction, see c. 8, s. 5, p. 1511. (i) In Scotland or Ireland. 629. For provisions guiding the court where leave is asked to serve a writ, under Eule, No. 64 (for which, see Nos. 621, 622, supra) in Scotland or in Ireland, see Ord. XI. r. 2, No. 65. (j) Indorsement of Service. 630. The person serving a writ of sum- mons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non- appearance, to proceed by default, and every affidavit of service of such writ shall mention the day on which such indorse- ment was made. This rule shall apply to substituted as well as other service. Ord. IX. r. 15, No. 62. 630a. It applies also to amended writs. The Cassiopeia, 4 P. D. 188; 48 L.J. Adm. 39. (k) Affidavit of Service. 631. The service of any instrument by a solicitor, his clerk or agent, shall be veri- fied by an affidavit. Ord. LXYII. r. 14, No. 1025. 632. Every affidavit of service of such writ shall mention the day on which the indorsement of service was made on the writ, and this applies to substituted as well as other service. See Ord. IX. r. 15, No. 62. 633. Affidavits of service shall state when, where, and how and by whom, such service was effected. Ord. LXYII. r. 9, No. 1020. 633a. A certificate made before a foreign notary, of service of notice of writ on a defendant out of the jurisdiction,,- and service on a foreigner resident out of the jurisdiction, is stilt in force (see Ord. XL r. 6, No. 69) ; but probably, having re- gard to the terms of this rule, service of the writ would be required in the case of a British, subject out of the jurisdiction. , (213a) As to service out of the jurisdicT tion, see "Wilson's Judicature Acts and Eules (4th ed.) pp. 199—202, and Archbold's Prac- tice (14th ed. by Ohitty), p. 236. * (214) The affidavit should be intituled in the contemplated action, and also in ™* Judicature Acts. Young v. Braseey, 1 Oh. D- 277. PRACTICE. Pt. II. In the High Court. Cap. 12. 1527 and in Germany, but without any affidavit of service, refused to be received. Ford v. Meiske, 16 Nov. 1885. 6. Writs of Summons in rem. (a) Generally. 634. In Admiralty actions in rem, ser- vice of a •writ of summons against ship, freight, or cargo on board, is to be ef- fected by nailing or affixing the original ■writ for a short time on the mainmast, or on the single mast of the vessel, and on taking off the process leaving a true copy of it nailed or fixed in its place. See Ord. IX. r. 12, No. 59. 635. The directions for serving a writ of summons in Ord. IX. r. 10 (now Ord. IX. r. 12, No. 59) must be strictly followed. It is not sufficient if served on the master even though on board the ship. The Marie Constance, 3 Asp. N.8. 505. 635a. As to service of writ after entry of caveat warrant, see Nos. 539 — 542, p. 1518. See also No. 606, supra. (b) Affidavit of Service. 636. A plaintiff in a bottomry action proceeding on default of appearance must annex the original writ to the affi- davit of service. The Eppos, 5 Asp. 180; 49 L. T. N.S. 604; 32 "W. E. 154. (c) On Ship, Cargo and Freight. 637. If the cargo has been landed or transhipped, service of the writ of sum- mons against the cargo and freight shall be effected by placing the writ or war- rant for a short time on the cargo, and, on taking off the process, by leaving a true copy upon it. See Ord. IX. r. 13, No. 60. (d) Against Proceeds in Registry. 638. After a vessel has been sold under an order of the judge of the Admiralty division, and the proceeds are in the re- gistry, no owner having appeared, the writ in an action against those proceeds, whether original or amended- subsequent to the sale, must be personally served on the registrar. The Cassiopeia, 4 P. D. (C. A.) 188 ; 48 L. J. P. D. (C. A.) 39 ; 4 Asp. 148. (e) Amended Writs. 639. In Admiralty actions in rem an amended writ should be served in the same way as the original writ; but it will be sufficient if the solicitor of the defendants accepts service ; and if the defendants have not appeared, and the vessel has been sold and the proceeds paid into court, the amended writ must be delivered to the registrar with an intimation that service is intended, and must be indorsed with the date of service. Ibid. (f) Solicitors undertaking to accept Service and give Bail. 640. In Admiralty actions in rem no service of writ or warrant shall be re- quired where the solicitor of the defen- dant agrees to accept service and to put in bail, or to pay money into court in lieu of bail. Ord. IX. r. 10, No. 57. 7. Warrants.* (a) Generally. 641. In Admiralty actions in rem the * (215] On obtaining the warrant make the required copy or copies of the warrant for service. If the ship only is arrested one copy for service will ordinarily suffice. If the ship is in dock the marshal gives notice of the arrest to the dock authorities, but they are not served with the warrant. (216) If the cargo is to be arrested for itself or for freight, and is on board the vessel, one copy only of the warrant will be required for its arrest; but if the cargo has been partially discharged further copies will be required for service on the cargo where discharged, and on the person in whose cus- tody the discharged cargo is. (217) No stamp is required on any copy of the warrant. (218) Take the warrant and copies to the marshal's office, in the Eoyal Courts of Jus- tice, Eoom No. 739, with a document called Instructions for Arrest, forms of which maybe obtained, as required, at the marshal's office. This document bears no stamp. In this document it should be stated in what port or dock the ship is lying, or in what port she may be expected, and when. (219) If the property is at an outport, and an immediate arrest is required, fill up a form annexed to the Instructions for Arrest, requesting the marshal to forward instruc- tions by telegraph to his substitute to effect immediate arrest, and undertaking to pay all charges and expenses that may be in- curred in consequence. (220) Pay the stamps for the fee on arrest, viz., £2. These stamps, -which are obtain- able at the Stamp Office of the Eoyal Courts of Justice, Eoom No. 420, should be im- 1528 PRACTICE. Pt. II. In the High Court. Cap. 12. warrant of arrest shall be served by the marshal or his substitutes, whether the property to be arrested be situate within the port of London or elsewhere within the jurisdiction of the court. Ord. IX. r. 11, No. 58. 641a. A warrant of arrest in an action in rem was issued from the City of London Court directed to the high bailiff, and others the bailiffs thereof, but was, with- out authority from the court, served by a clerk in the high bailiff's office. Held, affirming the decision of the judge of the City of London Court, that this was not a proper service of a warrant. Per Sir J. Hannen : The words " any officer " (31 & 32 Vict. c. 71, s. 23) mean any officer duly authorized by the court. Per Butt, J. : Those words mean any officer whose or- dinary duty it is to serve process, or one duly authorized so to do. The Palomares, 10 P. D. 36; 54L.J.Adm. 54; 5 Asp. 343. 642. Service of a warrant against ship, freight, or cargo on board, is to be effected by nailing or affixing the original writ or warrant for a short time on the mainmast, or on the single mast of the vessel, and on taking off the process leaving a true copy of it nailed or fixed in its place. See Ord. IX. r. 12, No. 59. 642a. If the cargo has been landed or transhipped, service of the warrant to arrest the cargo and freight shall be effected by placing the warrant for a short time on the cargo, and on taking off the process by leaving a true copy upon it. Ibid. r. 13, No. 60. 643. If the cargo be in the custody of a person who will not permit access to it, service of the warrant may be made upon the custodian. Ibid. r. 14, No. 61. ' 644. In Admiralty actions every war- rant or. other instrument required to be served by the marshal shall be left by the solicitor taking out the same with a notice in the Admiralty registry. Ord. LXVLT. r. 13, No. 1024. 645. The service of any instrument by the marshal shall be verified by his certi- ficate. Ibid. r. 14, No. 1025. 646. Por form of praecipe for service by the marshal of any instrument in rem other than a warrant, see E. S. C. 1883, App. A., Part I.; No. 16. 646a. No service of warrant shall be required where the solicitor of the de- fendant agrees to accept service and to put in bailjor to pay money into court in lieu of bail. See Ord. IX. r. 10, No. 57. 647. Where the marshal sends by tele- gram to his substitute at an outport notice of the issue of a warrant, and such sub- stitute communicates it to the master of the ship against which it is issued, it is a contempt of court to move the ship from the place where it is lying. The Seraglio, 10 P. D. 120. 647a. In a case of salvage on recapture, in which the ship and cargo had been restored to the proprietor on bail, to answer salvage, but were destroyed by fire before -the appraisement of the cargo had been completed, held, as to the ship, that the appraisement having been exe- cuted, possession was restored to the owner, and that salvage was due thereon according to the appraised value ; but as to the cargo, that the appraisement not having been completed that was in the custody of the court, and that, therefore, the loss must fall on both parties accord- ing to their several interests. The Three pressed on the form of the warrant before it is handed into the registry for sealing. (221) The impressed stamp of £2 suffices for the arrest, whether the warrant be against ship, cargo, and freight, or against one or more of such properties. See ft. S. 0. Fees, 1884, No. 92. (222) The warrant is executed, as against the ship, by affixing it temporarily to the mainmast, and leaving thereon affixed a true copy thereof ; and, as against the freight, by affixing the warrant temporarily to one of the principal bales, &c. of cargo, and leaving thereon affixed a true copy thereof. (223) The cargo is arrested m a similar manner to freight. (224) The marshal's substitutes are usually the collectors of customs at the different out- ports. (225) In the execution of Admiralty pro- cess, in rem, the officer should take and hold actual and manifest possession. The Hibernia, Sprague, 78. [Amebioan.1 (226) If he do not, he is not entitled to charge custody fees, although he may have rendered himself liable for the safe keeping of the vessel. Ibid. (227) As to the process of arrest by autho- rity of American Admiralty Courts, see 2 Parsons on American Maritime Law, p. 684. (228) The circumstance of having a war- rant to arrest a vessel will not justify the handing her over to grossly ignorant and negligent persons, and if damage result therefrom the persons who so hand the ves- sel over will be liable. Petersen v. M'Lean, Cases in. the Court of Session, 3rd Series, vol. 6, p. 218. [Scotoh.2 PRACTICE. Pt. II. In the High Court. Cap. 12. 8. Originating Summons. 1529 Friends,* 0. Bob. 268 ; but see The Hoop, Nos. 86—88, p. 1472. 648. In a case of salvage on recapture, in which the ship and cargo had been, by agreement between the re-captors and the proprietor, brought into the Thames under a joint speculation of advantage as to the most beneficial manner of disposing of it, and the cargo was there destroyed by fire : held, that the removal having taken place by agreement and for the benefit of both parties, the loss was to be borne pro ratd. The C'reighton, cited in The Three Friends, 4 0. Eob. 272. 649. The diligence of arrestment is in- applicable to a ship sailing on her voy- age ; and force must not be used to bring the vessel back to port. An arrestment ad fundandam jurisdictionem was used on a vessel lying in Glasgow Harbour. A second warrant of arrestment on depend- ence of the action was then given to the messenger-at-arms to execute; but he, finding that the vessel had sailed on her voyage, pursued her on board a steam- tug with thirty men, and overtaking her some way down the Clyde, within the jurisdiction of the Scotch courts, as she was approaching the high seas, seized her and brought her back to port, and dismantled her. Held, affirming the de- cision of the court below, that the execu- tion of the arrestment was illegal, and therefore should be recalled. Borjesson v. Carlberg (First Appeal), 3 App. Cas. 1316. 650. A ship on her voyage having been arrested by a warrant on dependence of an action, and brought back by force into harbour, the arrestment was recalled as illegally executed. Other arrestments were then usod against the vessels by parties acting in concert with the original arresters. Held, affirming the decision of the court below, that the second arrestments must also be recalled. Ibid. (Second Appeal), 1322. See also No. 603, supra. (b) Releases. 651. It is not necessary that a release should be served upon the agent of the salvors ; it may be served on board the ship. The Cumberland, 9 Jur. 191. 651a. As to caveats against release, and the responsibility for so preventing re- lease, see Pt. I. p. 1477. 652. An originating summons, where service is necessary, shall be served seven clear days before the return thereof. Ord. LIV. r. 4, No. 737. 9. Orders and Judgments. 653. An order obtained as in rule 4 mentioned {i. e., for continuing proceed- ings and adding new parties on change or transmission of interest), shall, unless the court or judge shall otherwise direct, be served upon the continuing party or parties, or their solicitors, and also upon each such new party, unless the person making the application be himself the only new party, and the order shall from the time of such service, subject never- theless to rules 6 and 7 (as to persons free from, or under, disability other than co- verture applying as therein mentioned to discharge the order), be binding on the persons served therewith, and every per- son served therewith who is not already, a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons. Ord. XVII. r. 5, No^ 182. 654. Except in the case of an order for attachment, it shall not be necessary to the regular service of an order that the original order be shown if an office copy of it be exhibited. Ord. LXYII. r. 1, No. 1012. 655. Where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any property real or personal to another, it shall not be necessary to make any de- mand thereof, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand. Ord. XLII. r. 1 , No. 579. 655a. See Nos. 660 — 66"3, infra, and No. 770, p. 1542. 10. Attachments.* See No. 654, supra; and as to attach- ments generally, and of debts, see c. 43, ss. 24, 25. (229) As to service of attachment and notice of attachment, see Wilson's Judicature Acts and Rules, 4th ed. p. 406. P. 6f 1530 PRACTICE. Pt. II. In the High Court. Cap. 12. 11. Subpoenas. (a) Generally.* 656. The service of a subpoena shall, he effected by delivering a copy of the writ, and of the indorsement thereon, and at the same time producing the original writ. Ord. XXXVII. r. 32, No. 514. 656a. As to subpoenas generally, see c. 35, s. 32. (b) In Scotland or Ireland. 657. The service in any part of Great Britain or Ireland of any writ of sub- poena ad testificandum or subpoena duces tecum, issued under seal of the High Court of Admiralty, shall be as effectual as if the same had been served in England or "Wales. The Admiralty Court Act, 1861 (c. 10), s. 21. (c) Within what Time. 658. The service of any subpoena shall be of no validity if not made within twelve, weeks after the teste of the writ. Ord.. XXXVII. r. 34, No. 516. (d) Affidavit of Service. 659. Affidavits filed for the purpose of proving the service of a subpoena upon any defendant must state when, where, and how, and by whom, such service was effected. Ibid. r. 33, No. 515. 12. Of other Documents requiring Personal Service. (a) Generally.^ 660. Where personal service of any writ, notice, pleading, order, summons, warrant, or other document, proceeding, or written communication is required by these rules or otherwise, the service shall be effected as nearly as may he in the manner prescribed for the personal ser- vice of a writ of summons. Ord. LXVII. r. 5, No. 1016. (b) Substituted Service. 661. Where personal service of any writ, notice, pleading, summons, order, warrant, or other document, proceeding, or written communication is required by these rules or otherwise, and it is made to appear to the court or a judge that prompt personal service cannot be effected, the court or judge may make such order for substituted or other service, or for the substitution of notice for service by letter, public advertisement, or otherwise, as may be just. Ibid. r. 6, No. 1017. 13. Of Documents not requiring Personal Service. (a) Generally. 662. AH writs, notices, pleadings, i orders, summonses, warrants, and other j documents, pro^eedmgj^^jiad iWl^ff communications in respect of which per- sonal service is not requisite, shall be sufficiently served if left within the pre- scribed hours at the address for service of the person to be served, as defined by Ords. IV. and XII., with any person resident at or belonging to such place. Ord. LXVII. r. 2, No. 1013. 662a. Where no appearance has bee^j entered for a party, or' where a partj^H his solicitor, as the case may 'be,"has"" omitted to give an address for' service; as required by Ords. IV. and XII., all writs, notices, pleadings, orders, summonses, warrants, and other documents, proceed- ings, and written communications in re- spect of which personal service is not requisite may be served byfding them with the proper officer. Ibid- r. 4, No. 1015. 663. As to service of notice of a pog- ment or order on an infant or person of unsound mind not so foundby inquisition in the same manner as a writ of summons, see Ord. XVI. r. 44, No. 166. (b) Third Parties. 664. Where a person who is not a party appears in any proceeding' either before the court or in chambers, service upon the solicitor in London by whom such person appears, whether such soli- citor act as principal or agent, shall be deemed good service except in n™*?! 8 requiring personal service. Ord. LXvil. r. 8, No. 1019. * (229a)' If the witnesB is served out of London, nis reasonable expenses to and from London, and in London, must be tendered birh at the same time. See as to such ex- penses, tit. Costs, p. 417. t (230) An originating summons, where Bervioe is necessary, shall be served seven clear days before the return thereof. JWwT other summons shall be seryedLtWP °%' days before the return thereof, unless in W case it shall be otherwise ordered. ■ u™ LIV. r. 4, No. 737. PRACTICE. Pt. II. In the High Court. Cap. 12. 1531 (o) Appearance by Solicitor after Per- sonal Appearance. 665. Where a party, after having sued or appeared in person, has given notice in writing to the opposite party or his solicitor, through a solicitor, that such solicitor is authorized to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, orders, warrants, and other documents, proceedings, and written communications which ought to he delivered to or served upon the party on whose behalf the notice is given shall thereafter he delivered to or served upon such solicitor. Ibid. r. 7, No. 1018. 14. Petitions. 666. The plaintiff shall, without any special leave, be at liberty to serve any petition, summons, notice of motion, or other notice, upon any defendant, who, having been duly served with a writ of summons to appear, has not appeared within the time limited for that purpose. Ord. LII. r. 8, No. 703. 666a. Unless the court or a judge gives leave to the contrary, there must be at least two clear days between the ser- vice and the day appointed for hearing a petition. Ibid. r. 17, No. 712. See also c. 8, p. 1513, and No. 1222, p. 1591. 15. Summonses. (a) Generally.* 667. Every summons, other than an originating summons, shall be served two clear days before the return thereof, unless in any case it shall be otherwise ordered. Ord. LIV. r. 4, No. 737. 667a. As to the service of summonses, notices, or other documents in Courts of Survey, see tit. Owners, Pt. HE. p. 1270. See also Nos. 664, 665, supra. (b) Affidavit of Service. 668. For form of affidavit of service of summons, see E. S. C. 1883, App. B. No. 23. 16. Pleadings. 669. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered in the manner now in use to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer. Ord. XIX. r. 10, No. 206. 669a. As to the delivery of statements of claim, statements of defence and coun- ter-claim, reply, and subsequent plead- ings, and as to the time within which they are to be delivered, see c. 34, ss. 4, 6, 7, pp. 1592, 1593, 1595. 6696. As to the filing of them when no appearance has been entered, see Ord. XIX. r. 10, No. 206. 669c. The time for delivering, amend- ing, or filing any pleading may be en- larged by consent in writing, without application to the court or a judge. Ord. LXIV. r. 8, No. 968. 6690*. No pleading shall be amended or delivered in the long vacation unless directed by the court or judge, and the time of the long vacation shall not be reckoned in the computation of the time for filing, amending, or delivering any pleading, unless otherwise directed. Ibid. r. 4, No. 964, and ibid. r. 5, No. 965. 669e. Every pleading shall be de- livered between parties, and shall be marked on the face of it with the date of the day on which it is delivered. Ord. XIX. r. 11, No. 207. 669/. As to the power of the court in Admiralty actions to appoint a day for the trial, and for that purpose to abridge the time for delivery of pleadings, and for other purposes, see Ord. LXIV. r. 9, No. 969. 17. Notices. (a) Generally.] 670. As to service of notice of applica- tion for appointment of guardian to the defendant when a minor, or of unsound mind, see Ord. XIH. r. 1, No. 101. 670a. As to filing affidavit of service, or of notice in lieu of service, as the case may be, on non-appearance to writ and applications to proceed by default, ibid. r. 2, No. 102. 671. As to service of notice on foreign consul in actions of possession, see Pt. III. c. 11, s. 2 ; and in actions of wages, ibid. c. 18, s. 2. 671a. As to the filing, with the pro- per officer, of notice served by a de- • (230a) See note (230), ante, p. 1530. t (231) As to service of notices gene- rally, see Archbold's Practice (14th ed. by Chitty), vol. 1, p. 212. 5f2 1532 PRACTICE. Pt. II. In the High Court. Cap. 13; fendant claiming to Be entitled to contri- bution, indemnity, or other remedy or relief against any person not a party to the action, see Ord. XVI. r. 48, No. 170. 6715. An affidavit of the solicitor, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to pro- duce, shall in all cases he sufficient evi- dence of the service of the notice, and of the time when it was served. Ord. XXXII. r. 8, No. 378. See also Nos. 6625, 664, 665, 666, supra, and No. 770, p. 1542. (b) Of Bail. 671c. As to the service, by the solicitor of the defendant giving bail, of a notice of bail on the adverse solicitor, see c. 19, p. 1547. (c) Of Trial. See c. 38, s. 4, Nos. 1699 et seq. (d) From the Supreme Court. 671c?. Notices sent from any office of the Supreme Court may be sent by post ; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof, and the posting thereof shall be a sufficient service. Ord. LXVII. r. 3, No. 1014. (e) Under the M. S. Acts, 1854 and 1876. See tit. Owners, Pt. II. p. 1253. 18. Amended Documents. 672. Whenever any indorsement or pleading is amended, such amended document shall be delivered to the oppo- site party within the time allowed for amending the same. Ord. XXVIII. r. 10, No. 318. 19. Affidavits, 673. "Within fourteen days after a con- sent for taking evidence by affidavit as between the parties has been given, or within such time as the parties may agree upon, or the court or a judge may allow, the plaintiff shall file his affidavits and. deliver to the defendant or his solicitor a list thereof. Ord. XXXVIII. r. 25, No. 545. 673a. The defendant, within fourteen days after delivery of such list, or within such time as the parties may agree upon, or the court or a judge may allow, shall file his affidavits and deliver to the plain- tiff or his solicitor a list thereof. Ibid. r. 26, No. 546. 6735. Within seven days after the ex- piration of the last-mentioned fourteen days, or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shaILd|- liver to the defendant or. his solicitor a list thereof." Ibid. r. 27, No. 547. 13. Appearance. , 1 . Generally.* 674. A defendant shall enter his ap- pearance to a writ of summons by de- livering to the proper officer a memoran- dum in writing dated on the day of its delivery, and containing the name of the defendant's solicitor, or stating that the defendant defends in person. He shall at the same time deliver to the officer a duplicate of the memorandum, which the officer shall seal with the official seal, showing the date on which it is sealed, and then return it to the person entering the appearance, and the duplicate memo- randum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal. Ord. XII r. 8, No. 78. _ 675. Where persons are sued as part- ners in the name of their firm, they shall appear individually in their own names ; but all subsequent proceedings shall, nevertheless, continue in the name of the firm. Ibid. r. 15, No. 85. * (231a) As to appearances to writs of summons, see Wilson's Jud. Aots and Eules, 4th ed. pp. 203—208, and Archbold's Practice (14th ed. by Ohitty), vol. 1, p. 251. (232) It is a common practice in actions in rem, and very convenient where it is desired to give bail and release the ship promptly, to appear for the owners of the ship proceeded "against without specifying the names and addresses of the owners, which can be ob» tained on summons by the adverse solicitor if he desires them. See, as to procuring same, c. 10, p. 1515. (233) In an action in rem the parties inte- rested in the ship or property proceeded against may appear to the action bytheir solicitor, and allow the ship to remain under arrest, or they may give bail to answer the action and obtain a release of the ship. PRACTICE. Pt. II. In the High Court. Cap. 13. 1533 67.5a. Where aily person carrying on business in the name of a firm apparently consisting of more than one person shall be sued in the name of the firm, he shall appear in his own name ; but all subse- quent proceedings shall, nevertheless, continue in the name of the firm. Ibid. r. 16, No. 86. 676. If two or more defendants in the same action shall appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum. Ibid. r. 17, No. 87. 676a. Where in a suit for limitation of liability an appearance was entered on behalf of a child of a man drowned in a collision en ventre sa mere, the court re- served leave to the child, if born within due time, to prefer its claim for damages sustained by the death of its father. The George and Richard, L. E. 3 A. & E. 466. 677. As to appearance as regulating whether the proceedings shall be in the district registry, see Nos. 976 — 978, infra. 677a. Por forms of entry and notice of entry of appearance, and notice of limit- ing defence, see E. 8. 0. 1883, App. A., Pt. II., Nos. 1—8. 6775. As to what parties may appear, see c. 6, p. 1498. 2. In Central Office. 678. Except in the cases otherwise provided for by these rules a defendant shall enter his appearance in London. Ord. XII. r. 1, No. 71. 679. Appearances entered in London shall be entered in the Central Office. Ibid. r. 2, No. 72. 680. In Admiralty actions notice of appearances entered shall forthwith be given by the Central Office to the Admi- ralty registry. Ibid. r. 3, No. 73 ; and see C. 0. Prac. Eules, 1880—1882, in Wilson's Jud. Acts and Eules, 4th ed. p. 847. 681. If any defendant resides or car- ries on business in the district, he must appear in the district registry, but if he does not reside or carry on business in any such registry he may appear either in the district registry or at the Central Office. See Ord. XII. rr. 4 and 5, Nos. 74 and 75. 682. Where a writ has been issued from a district registry, and the defendant enters an appearance in London, the memorandum of appearance should set forth that the action was begun in that registry, its title in that registry, and that the defendant is out of the jurisdiction of that registry. The General Birch, 33 L. T. N.8. 792. 683. A solicitor appearing for a de- fendant shall state in his memorandum of appearance his place of business, and, if the appearance is entered in the Cen- tral Office, a place, to be called his address for service, which shall not be more than three miles from the principal entrance of the Central Hall at the Eoyal Courts of Justice. Ord. XII. r. 10, No. 80. 684. A defendant appearing in person shall do the same, except that he shall give his address in lieu of the place of business required to be given by the solicitor. Ibid. r. 11, No. 81. 685. If the memorandum does not contain such address it shall not be re- ceived ; and if any such address shall be illusory or fictitious, the appearance may be set aside by the court or a judge, on the application of the plaintiff. Ibid. r. 12, No. 82. 686. Where a defendant gives an ad- dress for service at which he is not to be found, and there is no person authorized to take in or forward documents, such address is illusory, and the appearance will be set aside. A. v. B., 17th Nov. 1883. 687. A defendant in person may change his address for service (without order to change address) by leave of the master, but must forthwith give notice to the other side. See C. O. Prac. Eules, 1880 — 1882, in Wilson's Jud. Acts and Eules, 4th ed. p. 847. 688. Where any solicitor appearing for a defendant is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the prin- cipal solicitor. Ord. XII. r. 10, No. 80. 689. The memorandum of appearance shall be in the Form No. 1 in Appendix A., Part II., with such variations as cir- cumstances may require. Ibid. r. 13, No. 83. 690. Upon receipt of a memorandum of appearance, the officer shall forthwith enter the appearance in the cause book. Ibid. r. 14, No. 84. 691. In entering appearances a note should be made in the cause books "Statement of claim required" or "State- ment of claim not required." See C. O. Prac. Eules, 1880— -1882, in Wilson's Jud. Acts and Eules, 4th ed. p. 846. 692. If the defendant appears, or any 1534 PRACTICE. Pt. II. In the High Court. Cap. 13. of the defendants appear, in London the action shall proceed in London ; provided that if the court or a judge shall be satis- fied that the defendant appearing in Lon- don is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such court or judge may order that the action may proceed in the district registry, notwithstanding such appearance in London. Ord. XII. r. 7, No. 77. 3. In District Registry* 693. If any defendant to a writ issued in a district registry resides or carries on business within the district, he shall ap- pear in the district registry. Ord. XII. r. 4, No. 74. 694. If any defendant neither resides nor carries on business in the district, he may appear either in the district registry or at the Central Office. Ibid. r. 5, No. 75. 695. A defendant shall enter his ap- pearance to a writ of summons by deliver- ing to the proper officer a memorandum in writing dated on the day of its delivery, and containing the name of the defen- dant's solicitor, or stating that the de- fendant defends in person. Ibid. r. 8, No. 78. 696. He shall at the same time deliver to the officer a duplicate of the memo- randum, which the officer shall seal with the official seal, showing the date on which it is sealed, and then return it to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal. Ibid. 697. A solicitor appearing for a defen- dant shall state in his memorandum of appearance his place of business, and if the appearance is entered in a district registry, a place, to be called his address •for service, which shall be within the district.. Ibid. r. 10, No. 80. 698. A defendant appearing in person shall do the same, except that he shall give his address in lieu of the place of business required to be given by a soli- citor. Ibid. r. 11, No. 81. 699. As to the course to be adopted when no address is given, or it is illusory or fictitious, Ibid. r. 12, No. 82, and see Nos. 685, 686, supra. 700. And where any such solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. Ibid r. 10, No. 80. 4. Notice of- — . 701. A defendant shall, on the day on which he enters an appearance to a writ of summons, give notice of his appear- ance (Form No. 2 in Appendix A., Part II.) to the plaintiff's solicitor, or, if the plaintiff sues in person, to the plain- tiff himself. The notice may be given either by notice in writing served in the ordinary way at the address for service (which, in the case of a writ issued out of a district registry, must be the address for service within the district), or by prepaid letter directed to that address, and posted on the day of entering appearance in due course of post, and shall in either case be accompanied by the sealed duplicate memorandum. Ibid. r. 9, No. 79. 5. Under Protest. See c. 8, s. 12, p. 1513. 6. Out of Time. 702. A defendant may appear at any time before judgment. If he appear at any time after the time limited by the writ for appearance, he shall not, unless the court or a judge shall otherwise order, be entitled to any further time for de- livering his defence, or for any other pur- pose, than if he had appeared according to the writ. Ord. XII. r. 22, No. 92. 7. Third Parties or. Interveners. 703. In an Admiralty action in rem any person not named in the writ may inter- vene and appear as heretofore, on filing an affidavit showing that he is interested in the res under arrest, or in' the fund in the registry. Ibid. r. 24, No. 94. 704. Where a person (not a party to the action, but served with a notice at the instance of a defendant claiming to be entitled to contribution or indemnity against such third party) desires to dis- pute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, this third party must enter an appearance in the action within eight days from the service of the notice. See Ord. XVI. r. 49, No. 171. 705. Any person not a defendant! to the action, who is served with a defence PRACTICE. Pt. II. In the High Court. Cap. 13. 1535 and counter-claim set up by a defendant on raising questions between himself, the plaintiff, and such third person, must appear thereto as if he had been served with a writ of summons to appear in an action. See Ord. XXI. r. 13, No. 246. 705a. As to third parties and inter- veners generally, see c. 6, s. 6, p. 1500. 8. Effect of Non-appearance. (a) Generally* 706. As to the effect of non-appearance in due time, see No. 702, supra. (b) After Undertaking. 707. A solicitor not entering an ap- pearance or putting in bail, or paying money into court in lieu of bail in an Admiralty action in rem, in pursuance of his written undertaking so to do, shall be liable to an attachment. Ord. XII. r. 18, No. 88. (c) After Entry of Caveat Warrant. 708. As to the practice where a caveat warrant has been entered and no appear- ance has been given by the person who entered the caveat after he has been re- quired to appear, see Nos. 540 — 542, p. 1518. (d) Third Parties. 709. Where a person (not a party to the action, but served with a notice at the instance of a defendant claiming to be entitled to contribution or indemnity against such third party) makes default in appearing within the prescribed eight days, he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by con- sent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third-party notice. Provided always, that a person so served and failing to appear within the said period of eight days may apply to the court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the court or judge shall think fit. Ord. XVI. r. 49, No. 171. 710. "Where a third party makes de- fault in entering an appearance in. the action, in case the defendant giving the notice suffers judgment by default, ho shall be entitled at any time, after satis- faction of the judgment against himself, or before such satisfaction by leave of the court or a judge, to enter judgment against the third party to the extent of the contribution or indemnity claimed in the third-party notice : provided that it shall be lawful for the court or a judge to set aside or vary such judgment upon such terms as may seem just. Ibid. r. 50, No. 172. 711. "Where a third party makes de- fault in entering an appearance in the action, in case the action is tried and results in favour of the plaintiff, the judge who tries the action may, at or after the trial, enter such judgment as the nature of the case may require for the de- fendant giving the notice against the third party : provided that execution there- of be not issued without leave of the judge until after satisfaction by such defendant of the verdict or judgment against him. And if the action is finally decided in the plaintiff's favour, otherwise than by trial, the court or a judge may, on application by motion or summons, as the case may be, order such judgment as the nature of the case may require to be entered for the defendant giving the notice against the third party at any time after satis- faction by the defendant of the amount recovered by the plaintiff against him. Ibid. r. 51, No. 173. (e) In Actions of Account. 712. For provisions that where a writ of summons has been indorsed for an account under Ord. III. r. 8, or where the indorsement thereon involves taking an account, if the defendant fails to appear, or does not after appearance, by affidavit or otherwise, satisfy the court or a judge that there is some preliminary question to be tried, an order for the proper accounts, with all necessary in- quiries and directions now usual in the Chancery Division in similar cases, shall be forthwith made. See Ord. XV. r. 1 , No. 121. * (234) By the old practice the defendant neglecting to appear in due time was only admitted to appear and defend the cause on his paying the costs incurred in the proceed- ings by default in consequence of his non- appearance. These costs were technically termed contumacy costs, or contumacy fees. See 2 Browne's Civil and Admiralty Law, 405; Olerke's Praxis Cur. Adm. tit. 37, 39; and the reference to such fees in bonds to answer latent demands, in The Saracen, 6 Moore, P. C. C. 66, n. See also as to the old practice, note 343, p. 1565. 1536 PRACTICE. Pt. II. In the High Court. Cap. 15. 713, The application for such order is to be by summons, and supported by an affidavit, when necessary, filed on behalf of the plaintiff, stating concisely the -grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired. Ord. XV. r. 2, No. 122. 14. Prior Petens.* 714. A bottomry bondholder who has obtained in proceedings by default a decree for sale of the ship acquires thereby a primd facie title to be paid out of the proceeds, and in order to dispute the bond an adverse claimant must first prove his own claim. The India, 1 Lush. 185 ; 11 W. E. 42 ; 32 L. J. Adm. 185. - 714a. This rule, however, applies only as between claimants in pari conditione. The MarUand, L. E. 3 A. & E. 340; 24 L. T. 596. See also No. 800, p. 1546, and note 338, p. 1564, and tit. Liens, c. 3, p. 812. As to precedence of actions, see c 5, p. 1497. 15. Transfer of Actions. 1. Generally. \ 715. Any cause or matter may at any time, and at any stage thereof, and either with or without application from any of the parties thereto, be transferred, by such authority, and in such manner as rules of court may direct, from one divi- sion or judge of the High Court of Jus- tice to any other division or judge thereof, or may by the like authority be retained in the division in which the same was commenced, although such may not be the proper division to which the same cause or matter ought, in the first in- stance, to have been assigned. The Supreme Court of Judicature Act, 1873 (c. 66), s. 36. 716. Subject to rules of court, the Judicature Acts, 1873 and 1875, and the power of transfer.N. every person com- mencing a cause in the High Court of Justice shall assign it to one of the divi- sions. If, however, it is assigned to a wrong division, it may at any stage be transferred to the proper division, or re- tained in the division, and all proceedings and orders therein before such transfer shall be valid. Ibid. 1875 (c. 77), s. 11. 717. Causes or matters may be trans- ferred from one division to another of the High Court, or from one judge to another of the Chancery Division, by an order of the lord chancellor : provided that no transfer shall be made from or to any division without the consent of the presi- dent of the division. Ord. XLIX. r. 1, No. 649. 718. Any cause or matter may, at any stage, be transferred from one division to another by an order made by the court or any judge of the division to which the cause or matter is assigned: provided that no such transfer shall be made with- out the consent of the president of the division to which the cause or matter is proposed to be transferred. Ibid. r. 3, No. 651. 719. "When an order has been made by any judge of the Chancery Division for the winding up of any company, or for the administration of the assets of any testator or intestate, the judge in whose court such winding up or administration shall be pending shall have power, with- out any further consent, to order the transfer to such judge of any cause or matter pending in any other court or division brought or continued by or against such company, or by or against the executors or administrators of the testator or intestate whose assets are being so administered, as the case may be. Ibid. r. 5, No. 653. 720. Any cause or matter transferred from any other division to the Chancery Division shall, by the order directing the transfer, be assigned to one of the judges of that division to be named in the order. Ibid. r. 7, No. 655. 721. A particular application in any cause or matter may, by the direction of the lord chancellor, be heard and disposel of by any judge of the High Court who shall consent so to do, to whatever divi- sion or judge such cause or matter may have been assigned. Ibid. x. 4, No. 652. 722. The Court of Queen's _ Bench having refused to transfer an action, the defendant's appeal therefrom dismissed. Story v. Waddle, 4 Q. B. D. 289. * (235) Under the practice then existing,; the obtaining of a decree of sale was almost equivalent to a judgment, t (235a) As to the transfer of actions, see Archbold's Practice (14th ed. by Chitty), vol. 1, pp. 411 et sej. PRACTICE. Pt. II. In the High Court. Cap. 15. 1537 723. Per James, L. J.: "We should be repealing a great part of the Judicature Act if we were to accede to this appli- cation. At any rate we should be acting contrary to the principle that each divi- sion of the court is to determine every- thing which arises in a matter which comes before it. I think we have no jurisdiction to make this order, or if we have, we ought not to interfere with the exercise of the discretion of the Queen's Bench Division." Lords Justices Bram- well and Brett concurring. Ibid. 724. The power to transfer an action is discretionary, to be exercised on all the facts to be ascertained by affidavits, and with a view to convenience and expe- diency. Coode v. Harrison, 2 Charley's Cases (Court), 101. 724a. In the following cases a transfer was granted, apparently on considerations of expediency : — Holloway v. York, 2 Exch. D. 333 ; Humphreys v. Edwards, 45 L. J. Ch. 112 ; "W. N. 161; Doering v. Labouehere, 2 Charley's Cases (Court) 93 ; Hannen v. Hannen, ibid. 96 ; Bankart v. Haddon, ibid. 106; Holmes v. Harvey, 25 W. E. 80 ; 35 L. J. 600 ; Young v. King, 1 Charley's Cases (Chambers), 20 ; Pad- wick v. Scott, 2 ibid. 10 ; Johnson v. Moffat, ibid. 725. In the following cases a transfer of the action was refused : — Coode v. Har- rison, 2 Charley's Cases (Court), 101; Warne v. Dell, 1 ibid. (Chambers), 19. See also 2 ibid. 10; and Re Hutley, Deards v. Putt, 1 Ch. D. 11; 45 L. J. Ch. 79; 33 L. J. 237; 1 Charley's Cases (Court), 151; In re Boyd's Trusts, 1 Ch. D. 12; 1 Charley's Cases (Court), 153 ; Cannat v. Morgan, 1 Ch. D. 1 ; 45 L. J. Ch. 50 ; 33 L. J. 402 ; 24 W. E. 90 ; 1 Charley's Cases (Court), 154. 726. Held, by the Master of the Eolls, that motions for the transfer of causes from one division to another should be made on notice. Humphreys v. Edwards, 45 L. J. Ch. 112; 1 Charley's Cases (Court), 81. 2. From London to District Registry. 727. If the defendant appears, or any of the defendants appear, in London the action shall proceed in London ; provided that if the court or a judge shall be satisfied that the defendant appearing in London is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such court or judge may order that the action may proceed in the district registry notwith- standing such appearance in London. Ord. XII. r. 7, No. 77. 728. Any party to a cause or matter proceeding in London may apply to the court or a j udge for an order to remove the cause or matter from London to any district registry, and the court or judge may make an order accordingly, if satis- fied that there is sufficient reason for doing so, upon such terms, if any, as shall be just. Ord. XXXV. r. 17, No. 417. 3. From District Registry to London. 729. In an Admiralty action in rem, any person who may have duly intervened and appeared may remove an action from a district registry as of right. Ibid. r. 13, No. 413. 730. For provisions as to other actions being removed from the district registry as of right in the cases and within the times therein mentioned : i. e. ( 1 ) where the writ is specially indorsed under Ord. III. r. 6, No. 16, and the plaintiff does not with- in four days after appearance give notice of an application for an order against him under Ord. XIV. ; (2) where the writ is specially indorsed, and the plaintiff has made such application, and the defendant has obtained leave to defend ; and ( 3 ) where the writ is not specially indorsed under Ord. III. r. 6, No. 16, Ibid. 731. Any person desirous to remove an action as of right under the last preceding rule may do so by serving upon the other parties to the action, and delivering to the district registrar, a notice, signed by him- self or his solicitor, to the effect that he desires the action to be removed to London, and the action shall be removed accord- ingly : provided that if the court or a judge shall be satisfied that the defendant giving such notice is a merely formal de- fendant, or has no substantial cause to interfere in the conduct of the action, or that there is other good cause for pro- ceeding in the district registry, such court or judge may order that the action may proceed in the district registry notwith- standing such notice. Ord. XXXV. r. 14, No. 414. 732. Except in Admiralty actions in rem the notice for removal shall be accom- panied by a certificate signed by the de- fendant or his solicitor that his defence has not been delivered, and that the time for delivering the same has not expired. Ibid. r. 15, No. 415. 733. In any case not provided for by Eules 13 and 14, any party to a cause or matter proceeding in a district registry 1538 PRACTICE. Pt. II. In the High Court: Cap; 1£ may apply to the court or a judge, or to the district registrar, for an order to re- move the cause. or matter from the district registry to London, and an order may be made accordingly, for sufficient reason and on just terms. See Ord. XXXV. r. 16, No. 416. 734. Where, under the preceding rules, a cause or matter is removed from a dis- trict registry, the defendant shall, on such removal, give notice to the plaintiff of an address for service in London, as if the appearance had heen originally entered in London. Ibid. r. 18, No. 418. 735. Whenever a defendant appears in London to a writ issued out of a dis- trict registry or any proceedings are removed from the district registry to London under Eule 14 of this Order, or by order of the court or a judge, the dis- trict registrar shall transmit to the Cen- tral Office all original documents, if any, filed in the district registry, and a copy of all entries of the proceedings in the books of that registry. Ibid. r. 20, No. 420. 736. On the removal by appearance to London of an action commenced in a dis- trict registry a fresh London distinctive mark is to be given. See 0. 0. Prac. Eules, 1880—82, in Wilson's Jud. Acts and Eules, 4th ed. p. 848. 4. From another Division to Admiralty Division. 737. An application by the defendants for the transfer from a Common Law Division to the Admiralty Division of an action of negligence arising out of a col- lision in the Thames, refused ; secus, if a question of seamanship had been in- volved. . The General Steam Navigation Co., re The London and Edinburgh Ship- ping Co., 2 Charley's Cases (Chambers), 67. 737«sl The owners of the A. brought an action in the Queen's Bench Division ' against the owners of the A.'s cargo for their share of general average, includ- ing their proportion of £3,000 paid for salvage of ship and cargo. Verdict for plaintiffs; but a new trial, ordered by the House of Lords, application of the defendants to transfer the action to the Admiralty Division as more conversant with salvage actions granted, and decision affirmed on appeal. The Ocean Steamship Co. v. Anderson $ Co., 33 W. E. 536 ; see also Hawkins v. Morgan, 49 L. J. Q. B. 618. 738. The Master of the Eolls ordered the transfer of an action of salvage from the Chancery Division -to the Admiralty Division. Humphreys v. Edwards, 45 L. J. Ch. 112 ; 1 Charley's Cases (Court), 81. 739. An order for the transfer of a cause is not effectual until the sanction of the president of the division to which it is proposed to transfer it has been ob- tained. Humphreys v. Edwards, 25 L. J. Ch. 112. See also No. 762, infra. 5. From Admiralty Division to another Division. 740. An action in rem for damage to cargo brought in the Admiralty Divi- sion, the owners of the ship being British - and domiciled in England, ordered on motion of the defendants to' be trans- ferred to the Queen's Bench Division, as improperly commenced in the Admiralty Division. The Seaham, 4 Asp. 58; 48 L. J. Adm. 28. 6. From High Court to County Court.* 741. For provisions in any action of * (236) For provisions in any action of contract brought in any of the superior courts of common law, and not exceeding £50, or reduced by payment to that sum, enabling a defendant, contesting all or part of the demand, to apply to a judge at chambers for a summons to show cause why the action should not be tried in a county court, and authorizing the judge, unless good cause iB shown to the contrary, to order accordingly ; and as to the proceedings to be thereupon taken ; see the County Courts Act, 1867 (c. 142), b. 7 ; and for provisions applying this section to .all actions in the High Court of Justice in which any relief is sought, which can be given in the county court, see the Supreme Court of Judicature Act, 1873 (c. 66), s. 67. (237) But this section is limited to actions on contract in a common law court in which the claim endorsed is not more than £50. The -words "reduced by payment" mean reduced by payment before action brought, and the application can only be made by the defendant within eight days after the service of the writ. When an order is made the cause becomes for all purposes a county court cause, and the superior court has no further control over it. See Wilson's Judi- cature Acts and Eules (4th ed.), p. 71. (237a) The power given by this section is distinct from that given by the 19 & 20 PRACTICE. Pt. II. In the High Court. Cap. 15. 1539 contract brought in a superior court •when the claim indorsed on the writ does not exceed £50, or is reduced by payment, or otherwise, to £50, enabling the judge, on the application of either party, after issue joined, to order, on such terms as he shall see fit, that the cause be tried in a county court, and for the registrar, after such trial, to certify the result to the master's office of the superior court, and for judgment being given therein in accordance with such certificate, see 19 & 20 Vict. c. 108, s. 26* 742. The words county court in this act include the City of London Court. See The County Courts Act, 1867 (c. 142), s. 35. 743. Any person against whom an action of tort is brought in a superior court, may make an affidavit that the plaintiff has no visible means of paying the costs of the defendant should a ver- dict be not found for the plaintiff, and thereupon a judge of the court in which the action is brought may order that, unless the plaintiff within a time to be therein mentioned, gives security for the defendant's costs to the satisfaction of a master of the court, or satisfies the judge that he has a cause of action fit to be prosecuted in the superior court, all pro- ceedings in the action shall be stayed, or the cause remitted for trial before the county court named in the order, and thereupon the plaintiff shall lodge the original writ and the order with the registrar of such county court, who shall appoint a day for the hearing of the cause, notice whereof shall be sent by post or otherwise by the registrar to both parties or their attorneys, and the county court so named shall have all the same powers and jurisdiction with respect to the cause as if the cause had been com- menced there, and both parties had agreed by a memorandum signed by them that the county court should try the action, and the costs subsequent to the order shall be allowed according to the county court scale of costs, and those in the superior court according to the scale in use there. See the County Courts Act, 1867 (c. 142), s. 10. 743a. For provisions applying this section to all actions in the High Court of Justice, in which any relief is sought which can be given in the county court, see the Supreme Court of Judicature Act, 1873 (c. 66), s. 67.f 744. Where any action is remitted by order of the High Court of Justice to a county court, the plaintiff shall lodge with the registrar thereof the order and the writ, and also a statement of . the names and addresses of the several par- ties to the action, and their solicitors, if any, and a concise statement of the parti- culars such as would be required upon entering a plaint, signed by the plaintiff or his solicitor, and the registrar shall thereupon enter the action for trial, and give notice to the parties of the day ap- pointed for such trial, by post or other- wise, ten clear days before such day, and shall annex to the notice to the defendant a copy of the particulars. County Court Eules of 1875, Ord. XX. r. 1. 745. Upon being served with a notice of trial under the last preceding rule, a defendant may proceed in all things in the same way as if the action had been brought in the county court, and the notice so served upon him was an ordi- nary summons. Ibid. r. 2. 746. The registrar shall forthwith en- dorse on the order the date on which the same was lodged, and file. the same, and the action shall proceed in all things as if it were an ordinary action in the county court. Ibid. r. 3. 747. For form of order to try action in county court, and for security, see E. S. C. 1883, Appendix K., Nos. 44, 45. 748. As to costs in such actions, see tit. Costs, c. 15, p. 350. See also Pt. IV. C. 6. Vict. c. 108, s. 26, on the application of either party after issuo joined, to order a trial of an action on contract to take place in the county court, the action still remaining one in the superior court. Ibid, and the cases there cited. * (238) For the cases and practice in the common law divisions, under this section, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 1550, and Wilson's Judicature Acts and Eules (4th ed.) pp. 68—72. t (239) This section is limited to actions of tort. The application may be made at any time, but only by the defendant. The effect of the order is to transform the action into a county court cause. See Wilson's Judicature Acts and Eules (4th ed.) p. 72. (240) For the cases and practice in the common law divisions under this section, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 1553. 1540 PRACTICE. Pt. II. In the High Court. Cap/Iff. 7. From Admiralty County Courts to the • Admiralty Division.' 11 ' 749. The High Court of Admiralty of England, on motion by any party to an Admiralty cause pending in a county court, may, if it shall think fit, with previous notice to the other party, trans- fer the cause to the High Court of Admi- ralty, and may order security for costs, or impose such other terms as to the court may seem fit. The County Courts Admi- ralty Jurisdiction Act, 1868 (c. 71), s. 6. 750. A cause over which a county court has jurisdiction by virtue of the County Courts Admiralty Jurisdiction Amendment Act, 1869, maybe transferred to the Court of Admiralty under the 6th section of the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), although the cause be one over which the Court of Admiralty has no original jurisdiction. The Swan, L. E. 3 A. & E. 314 ; 40 L. J. Adm. 8. 751. A cause instituted for the recovery of a claim in respect of demurrage so transferred. Ibid. 752. The Court of Admiralty has no jurisdiction over a cause transferred from a county court, if the cause be one over which the county court had no j urisdiction, such as a cause of bottomry. The Elpis, L. E. 4 A. & E. 1 ; 42 L. J. Adm. 43 ; 1 Asp. N.S. 472. 753. Claimants for necessaries procured judgment in the City of London Court, and the ship was ordered to be sold. Material men who had done repairs to the ship intervened, and entered an appear- ance in the City Court, and commenced an action in the Admiralty Division. An application by the plaintiffs (in the Ad- miralty Division) for the transfer of the action for necessaries to that division was allowed without prejudice to the rights of priority (if any) possessed by the plaintiffs in the action transferred. The Tmmacolata Concezione, 8 P. D. 34 ; 4 Asp. 593. 754. H during the progress of an Ad- miralty cause in a county court it appears to the court that the subject-matter exceeds the limit in respect of amount of the Ad- miralty jurisdiction of the court, the vali- dity of any order or decree theretofore made by the court shall not be thereby affected, but (unless the parties agree, by a memorandum signed by them or by their attorneys or agents, that the court shall retain jurisdiction) the court shall by order transfer the cause to the High Court of Admiralty ; but that court may nevertheless, if the judge of that court in any case thinks fit, order that the cause shall be prosecuted in the county court in which it was commenced, and it shall be prosecuted accordingly. The County Courts Admiralty Jurisdiction Act, 1868 (c. 71), s. 7. 755. If during the progress of an Admiralty cause in a county court it shall appear to the court that the cause could be more conveniently prosecuted in some other county court, or in the High Court of Admiralty of England, the court may by order transfer it to such other county court, or to the High Court of Admiralty of England, as the case may be, and the cause shall thenceforward be so prosecuted accordingly. Ibid. s. 8. 756. Where an Admiralty- action is transferred to the High Court of Justice by order thereof, the registrar of the court, upon the service of the order of transfer, shall send by post the proceed- ings to the proper officer of such court. The County Court Eules, 1875, Ord. XXXIII. r. 19. 757. Where the vessel has been arrested or has been seized under a warrant of exe- cution, and the sale of the vessel has been ordered to be transferred to the High Court of Justice, the vessel shall be re- tained by the high bailiff until the mar- shal shall, by order of the High Court of Justice, take possession thereof. Ibid. r. 29. 8. From Admiralty County Courts to other County Courts. See No. 755, supra. 9. From Admiralty County Courts to the Cinque Forts Court of Admiralty. 758. In all cases which shall arise within the jurisdiction of the Cinque j Ports, as defined by 1 & 2 Geo. 4, c. 76, j s. 18, causes may be transferred by the county court .... to the Court of Ad- miralty of the Cinque Ports in lieu of the High Court of Admiralty. The County j Courts Admiralty Jurisdiction Act, 1868 (c. 71), s. 33. , ' 758a. As to the Court of Admiralty ot : the Cinque Ports, see Pt. TV. c. 1, Nos. 2434 et seq. * (241) As to removal of oauses from inferior courts, see Arohbold's Practice (Wf* 1 6tl ' by Ohitty), vol. 2, pp. 1555—1574. PRACTICE. Pt. II. In the High Court. Cap. 16. 1541 10. From County Court to the High Court. 759. Where in any proceeding before any inferior court having jurisdiction in equity or at law, and in equity and in Admiralty respectively, any defence or counter-claim of the defendant involves matter beyond tho jurisdiction of the court, such defence or counter-claim shall not affect the competence or the duty of the court to dispose of the whole matter in controversy so far as relates to the demand of the plaintiff and the de- fence thereto, but no relief exceeding that which the court has jurisdiction to administer shall be given to the defen- dant upon any such counter-claim. But in such case the High Court, or any division or judge thereof, may, on the application of any party to the proceed- ing, order the whole proceeding to be transferred to the High Court, or any division thereof ; and the record in such proceeding shall then be transmitted by the registrar, or proper officer, of the inferior court to the High Court, and the proceeding shall thenceforth be con- tinued in the High Court as if originally commenced there. See Judicature Act, 1873 (c. 66), s. 90; the County Courts Act, 1865 (c. 99), s. 3. 760. Where any order is made by the High Court, or any division or judge thereof, for the transfer of any proceed- ings from the county court to the High Court under the 90th section of the Supreme Court of Judicature Act, 1873, or under sect. 3 of the County Courts Act, 1865, then, subject to such order, the record in such proceeding shall be transmitted by the registrar in the fol- lowing manner : The registrar shall make and certify under his hand office copies of all entries of record in the books of the court, and shall forthwith transmit by post or otherwise such copies, together with all such documents as shall have been filed in the action, to the proper officer of the High Court. Such copies and the cost of transmission shall be paid for by the party on whose application the transfer has been made, and the registrar may require a deposit of the costs of making such copies and transmission before making or transmitting the same. The County Court Eules, 1875, Ord. XX. r. 7. 761. Where a court orders the transfer of an action to the High Court of Jus- tice or to another court, the registrar shall send by post the order, together with the proceedings, to the registrar of the High Court of Justice or to the court to which it is transferred. Ibid* Ord. XXXIH. r. 20. See also Pt. IV. c. 6, Nos. 2500 et seq. 11. Re-transfer. 762. An action in the Exchequer Divi- sion, ostensibly founded on contract, but likely to prove an action of salvage, having been transferred to the Admiralty Division by a judge at chambers, the court refused to re-transfer it to the Ex- chequer Division. Nelson v. The Singapore Steamship Co., 2 Charley's Cases (Court), 88. 12. Precedence. 763. Where a county court action is transferred to the High Court, and con- solidated with a cross-action in the High Court brought after the commencement of the county court action, the plaintiff in the transferred action will be given the conduct of the consolidated actions al- though the transfer has been made on his application. The Never Despair, 9 P. D. 34; 5 Asp. 211. See also The Cosmopolitan and The Bjorn, 9 P. D. 35, n. 1 ; 5 Asp. 212, n. (a). See also c. 5, p. 1497. 16. Restrictions on Actions in Superior Courts. 1 . Generally. 764. For the statutory provisions and cases thereon restricting the right of ac- tion in a superior court where the case was proper to be tried in the inferior court, see tit. Costs, c. 15, pp. 350 — 354. 764a. The power given to a defendant under the County Courts Act, 1867, to apply to have a case tried in a county court where the claim indorsed on the writ exceeds £50, but such claim has been reduced by payment to a sum not exceeding £50, does not apply where the payment is made after action. Osborne v. Homburg, 1 Ex. D. 48. 2. Costs and Damages. See tit. Costs, p. 371. 3. Leave to proceed in the. Admiralty Division. (a) Generally. 765. Two causes of salvage having 1542 PRACTICE. Pt. II. In the High Court. Cap. 16. been consolidated at the request of all partite, the defendants moved that the suits might be dismissed by reason of the value of the property salved being under £1,000. Held, that the consolidation of the causes amounted to an agreement within the meaning of the 9th section of the County Courts Admiralty Jurisdiction Act, 1868, that the causes should be tried in the Admiralty Court. The Herman Wedel, 39 L., J. Adm. 30. 765a. Semble, under the 9th section of the County Courts Admiralty Jurisdiction Act, the Court of Admiralty may, in its discretion, take cognizance of salvage actions when the value of the property salved is under £1,000. Ibid. 766. As to the repeal of sect. 9 of the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), by Ord. LXV. r. 1, No. 976, see Tenant v. FJlis, 6 Q. B. D. 46 ; 50 L. J. Q. B. 143. 766a. The A. ran into the I., and da- maged her to the amount of £175. The owners of the I. applied to the registrar of the City of London Court for leave to institute a suit in rem against the I. under sect. 3 of the County Courts Admiralty Jurisdiction Amendment Act, 1869. The registrar decided that the limitation im- posed on the arrest or detention of a vessel by sect. 22 of the County Courts Admiralty Jurisdiction Act, 1868, applied to proceedings under sect. 3 of the Act of 1869, and on the ground that there was no evidence that the A. was about to be removed out of the jurisdiction of the court, refused leave to institute a suit in rem in the City of London Court. Upon application to the Admiralty Court upon an affidavit which stated the foregoing facts, the court gave leave to institute a suit in the Court of Admiralty in pursuance of the provisions of sect. 9 of the Act of 1868. The Archimedes, 22 January, 1870. 767. Under the 9th section of the County Courts Admiralty, Jurisdiction Act, 1868, application may be made to the Court of Admiralty for an order to institute in that court proceedings which might have been taken in a county court, and the Court of Admiralty will, if it sees fit, make such order. The Bengal, L. E. 3 A. & E. 14 ; 3 Asp. 316. 767a. Such an application, made on the ground that a question of law might arise whether a towage contract had been superseded by a right of salvage, granted. Ibid. 768. The Z. was under arrest of the Admiralty Court in a cause of collision. Upon the application of salvors whose services had been rendered after the collision, the court granted leave to institute a cause of salvage in the High Court of Admiralty, although it was ad- mitted that the court might possibly award a less sum than £300. The 2m- gara, 5 March, 1870. 769. When an action has been already commenced in the High Court of Admi- ralty for an amount within the county court jurisdiction, the plaintiff cannot obtain an order for leave to proceed, so as to relieve him from liability for costs. The Loretta, 40 L. J. N.S. Adm. 50 ; 1 Asp. N.S. 19 ; 20 L. T. N.S. 447. 770. Leave given to proceed in the Admiralty Division in an action for damage to cargo, where there was a neces- sity for a commission abroad, though the amount claimed was within the limits of the county court jurisdiction, and the owners were domiciled in England. Ellis v. General Steam Navigation Co., 3 Asp. N.S. 581* 770a. Notice of the order should be given on service of the writ. Ibid. * (242) The learned Editor has questioned this decision, as proceeding upon the assump- tion that the county court has jurisdiction in all claims for damage to cargo, and suggested that the county court has jurisdiction in Admiralty only in cases in which the High Court of Admiralty before the Judicature Act had jurisdiction. Citing Simpson v. Blues, 1 Asp. N.S. 326 ; Ounestead v. Price, Fullmore v. Wait, 2 Asp. 543. He admits that the Privy Council in Tlie Cargo ex Argos (1 Asp. N.S. 519), decided otherwise, but suggests that the other decisions are de- cisions of courts which now form part of the High Court of Justice, and would undoubt- edly be followed in any case of prohibition to a county court. He observes that the General Steam Navigation Company, the de- fendants in this action, are a company carry- ing on husiness in London, and therefore domiciled in England within the meaning of the 6th section of the Admiralty Court. |flt, 1861. Hence the High Court of Admiralty would have had no jurisdiction to try any action against them, or any of their ships, for damage to cargo, and that consequently an Admiralty, county oourt would have no such jurisdiction. See.3 Asp. N.S. 581. But as the Oourt of Appeal has since decided, following the decision in The Cargo & PRACTICE. Pt. II. In the High Court. Cap. 17. 1543 (b) Costs. 771. The court may, notwithstanding an order under the 9th section of the County Courts Admiralty Jurisdiction Act, 1868, to take proceedings in the High Court of Admiralty, condemn the plaintiff in costs at the hearing. The John Evans, 43 L. J. Adm. 9; 2 Asp. N.S. 234. 4. Rescinding of Leave. 77 la. An order, under the 9th section of the County Courts Admiralty Jurisdiction Act, 1868, to take proceedings in the High Court of Admiralty may be made ex parte, though it is competent to the other parties to the cause to move after- wards that it be rescinded. Ibid. 5. Certificate for Costs. (a) Of Actions in Admiralty Division. See tit. Costs, c. 15, pp. 350 — 352, and Ibid, in Addenda. (b) Of Actions under Admiralty Court Act, 1861 (c. 10). See tit. Costs, p. 354. (e) Of Salvage Actions under the M. S. Acts. See tit. Costs, pp. 352, 353. 17. Consolidation of Actions. 1. Generally.* 772. Causes or matters pending in the same division may be consolidated by order of the court or a judge in the manner in use before the commencement of the principal act in the superior .courts of common law. Ord. XLIX. r. 8, No. 656. 773. The court has not power to con- solidate actions after one of them has been heard and decided. The Demetrius, L. E. 3 A. & E. 523 ; 41 L. J. Adm. 69 ; 1 Asp. N.S. 250 ; 26 L. T. 324 ; 20 W. E. 761. 774. Two actions can only be consoli- dated after each has become a lis pendens, and an action in personam does not be- come a lis pendens until after service of the writ. The Helenslea and The Cata- lonia, 7 P. D. 60 ; Ray v. Sherwood, 1 Curteis, Eccl. Eep. 173, 193; 1 Moore, P. C. C. 353. 775. As to proceedings in consolidated actions, see c. 18, infra. 776. As to costs in consolidated ac- tions, see tit. Costs, c. 11, p. 349. 777. As to severance of consolidation of actions, see c. 18, s. 3, infra. 2. In Bottomry Actions. 778. Three bottomry bonds of the same tenor having been put in suit by three separate actions, motion (not opposed) to consolidate the same, granted. The Albion, 1 Hagg. 333. 778a. Two separate bottomry bonds of different dates consolidated, semble errone- ously. Mackenzie 8f Co.v. The St. Andrew, Marsden's Eep. 129. 3. In Collision Actions. 779. For a case of consolidation of several actions of damage by collision, where all the actions arose out of the same transaction, see The Vildosala and other Ships, 4 Asp. 228. [Irish.] Argos, that a county court has jurisdiction in Admiralty in such cases (see The Alina, 5 Exch. D. 227), the reasoning now fails. * (243) An order for consolidation will be made by the registrar on summons, or if of a special nature it may be adjourned into court. (244) As to the consolidation of actions in other divisions, see Wilson's Judicature Acts and Eules (4th ed.) p. 424 ; and Arch- bold's Practice (14th ed. by Chitty), vol. 1, pp. 407 et seq. (245) For the practice of the civil- law and Court of Admiralty as to cumulating actions, particularly in causes of wages, see 4 Browne's Civil and Adm. Law (2nd ed.) 145. (246) The American Admiralty Courts are expressly empowered to direct the consolida- tion of causes of the like nature, or relative to the same question. See Act of Congress, 22nd July, 1813, c. 14, s. 3; 3 Stat, at Large, p. 19. [AMERICAir.] (247) Held, prior to the Judicature Acts and Eules, that unless parties agreed to con- solidate their causes, the court was bound to allow them to proceed separately, but it would order all the pleadings and evidence taken in the first action to be admitted in the cross action. The North American and The Tecla Carmen, 1 Lushington, 79 ; 5 Jur. N.S. 659. 1544 PRACTICE. Pt. II. In the Hign Court. Cap. 18. 4. In Marine Insurance Actions. 779a. As to consolidation of actions of marine insurance, see tit. Marine In- surance, p. 1106. 5. In Salvage Actions. (a) Generally. ■ 780. It has been the universal prac- tice of the Court of Admiralty to con- solidate actions where the decision of each action depends on precisely the same facts, and in salvage actions the court has gone further, consolidating actions where there are several sets of salvors not ren- dering precisely the same services. The William Hutt, 1 Lushington, 27; 1 L..T. N.S. 448. 781. Separate actions for salvage of life and property were entered and after- wards consolidated. The court approved of the course pursued. The Coromandel, Swabey, 208. 782. The court is displeased when two actions are brought by two sets of salvors where it can be avoided, but there may be cases in which this course is justifiable, and this was one, the salvors having opposite interests, the first set, smacks- men, being the first salvors, and the second, a steamer, claiming to have rescued the vessel. The Charles Adolphe, ibi,d. 156. 783. Separate actions had been brought by two sets of salvors, and the interest of the one set was denied by the other. The court intimated that the actions ought to have been consolidated, and ac- cordingly deducted £25 from the costs of one set of salvors. The Bartley, ibid. 198. 784. In a case of salvage of a derelict, separate actions having been entered by the actual salvors, and by the owners, master, and remainder of the crew of the salving vessel, the court awarded half costs only, expressing its regret that separate appearances had been given. The Nicolina, 2 W. Eob. 175. 785. Two actions for salvage by sepa- rate salvors, actions consolidated. The London Merchant, 3 Hagg. 395. 786. Two actions for salvage by two portions of salvors in respect of the same service, actions consolidated. The Hope, ibid. 423. (b) One Party dissenting. 787. The practice of the court has been not to force consolidation where the parties object to it. But where the plaintiffs in two actions of salvage against the same vessel, in respect of services ren- dered on the same occasion, objected to consolidate, the court, while refusing to make a consolidation order, allowed the defendants to make one tender in respect of the claims in both actions. The Jacob Landstrom, 4 P. D. 191 ; 4 Asp. 58. 788. Semble, the court has the' power of consolidating actions against the con- sent of the plaintiffs. The William Hutt, 1 Lushington, 27 ; 1 L. T. N.S. 448. 789. The consolidation of two salvage causes ordered against the consent of the defendants. The Melpomene, L. E. 4 A. & E. 129 ; 42 L. J. Adm. 45 ; 1 Asp. N.S. 515. 6. In Wages Actions. 790. Motion for consolidation of several actions for wages granted. The Adven- ture, 3 Hagg. 153. 7. Costs. See tit. Costs, p. 349. 18. Proceedings in Consolidated Actions. 1 . Generally. 791. "Where money is paid into court in two or more actions which are con- solidated, and the plaintiff proceeds to trial in one, and fails, the money paid in and the costs in all the actions shall he dealt with under this order in the same manner as in the action tried. See Ord. XXII. r. 8, No. 262. 792. As to consolidation of actions, see c. 17, p. 1543. 2. Order of Reference. 793. Where it is convenient to do bo, the court will refer to the registrar sepa- rately one of several consolidated causes. The Helen R. Cooper, L. E. 3 A. & E. 339 ; 40 L. J. Adm. 46. 3. Severance of Consolidation. 794. "Where several actions are brought against a ship in respect of one collision by different plaintiffs, and several hail bonds are given, and the actions consoli- dated by order of the court, and thfl damage is pronounced for in the usual course, the court has the power to open the order of consolidation and dissever PRACTICE. Pt. II. In the High Court. Cap. 19. 1545 the actions. The William Hutt, 1 Lush- ington, 27 ; 1 L. T. N.S. 448 * 19. Bail. 1. Generally. \ 795. Bail bonds are not mere personal securities given to individual captors, but are given in the Court of Admiralty to abide adjudication of all events at the time impending before it. Bail bonds are subject to more enlarged considera- tions in this court than at common law, where they are considered as mere per- sonal securities for the benefit of parties to whom they are given. They are here regarded as pledges for the thing itself in all points fairly in adjudication before the court. The Nied Elwyn, 1 Dodson, 53. 796. An obligation taken in the Admi- ralty to appear and sue there, is suable in that court, for it is a stipulation in the nature of bail at common law. The King v. Perry (1688), 3 Salk. 23 : 8. P. Wick v. Strutt (1694), Comb. 320; Par v. Evans (1663), T. Eaym. 78; and see 2 Ld. Eaym. 1286 ; Cro. El. 685. 797. The jurisdiction of the Court of Admiralty over bonds was confined to bonds of bottomry, and bonds taken by the court itself. The Bagnall, 3 W. Bob. 112; 12 Jur. 1008; 6 Notes of Cases, 542. 798. So that if the bond were a volun- tary transaction between the parties with- out any intervention of a receiver of wreck, it could not be enforced in that court. Ibid. 3 W. Bob. 112. 798a. In cross actions the plaintiff in the cross cause is entitled, under the Ad- miralty Court Act, 1861 (c. 10), s. 34, to a stay of proceedings in the first cause until bail has been given to answer his claim in the cross cause, though the cross cause is an action in personam. The Charkieh, 42 L. J. Adm. 70 ; 29 L. T. N.8. 404. 799. By the 14th section of 16 Geo. 3, c. 5 (made to prohibit all trade and intercourse with the then American colonies, and since repealed), it was pro- vided that where ships, &c. had been * (248) But when, according to the old practice, a cause was remitted from the Court of Appeal, with injunction "to proceed ac- cording to the tenor of former acts had and done," the court had no authority to relax an order made previously to the appeal. The William Hutt, No. 794, supra. (248a) An application to dissever consoli- dated actions, unless by consent, should be made on motion. t (249) In any cause in the High Court, of Admiralty bail may be taken to answer the judgment as well of that court as of the Court of Appeal, and the 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 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 in the Court of Appeal. See the Admiralty Court Act, 1861 (c. 10), s. 33. (250) This enactment was only applicable when the terms of the bail bond included both courts ; but now that an appeal is not a separate action, but only a rehearing of the original action, the enactment seems un- necessary. (251) For provisions that a surety or co- debtor discharging his liability shall be en- titled to an assignment of all the securities held by the creditor, and to all his rights and remedies against the debtor or co-surety, co-contractor, or co-debtor, see the Mercan- tile Law Amendmont Act, 1856 (c. 97), s. 5. p. (252) After the execution of process the defendant shall give caution or security. Godb. 260. And the caution may bind the . heirs, for by the civil law that comprehends his executors or administrators. Ibid. 261. (253) The securities taken in the Court of Admiralty in the nature of bail were stipula- tions and fidejussory cautions, and so called. 1 Browne's Civil and Admiralty Law, p. 361. (254) These stipulations had no priority over specialty debts, nor did they affect lands. Ibid. (255) As to bail at common law, see 2 Chitty's Archbold's Practice of the Court of Queen's Bench (14th ed. by Chitty), p. 1496. (256) As to bail in the American Admi- ralty Courts, see 2 Conkling's Adm. Prac. (2nd ed.) c. 4, p. 80 ; Dunlap's Adm. Prac. (2nd ed.) pp. 141—178; The Infanta, 1 Abb. Adm. 327 ; Cure v. Bullus, ibid. 555 ; Hunt v. United States, 1 Gallis. 32 ; Naylor v. Moody, 3 Black, 93; Hunt v. Bridgman, 2 Pick. 581; People v. Jansen, 7 Johns. 332; Huffman v. Hurlburt, 13 Wend. 375 ; Rey- nolds v. Ward, 5 ibid. 501 ; Bank v. Wood- ward, 5 N. Hamp. 99 ; United States v. Hillegas, 3 Wash. C. C. 70 ; Bank of Steuben- ville v. Hoge, 6 Ham. 17 ; Clippinger v. Creps, 2 Watts, 45 ; Kennebac Bank v. Tuckerman, 5 Green, 130 ; Deming v. Norton, Kirby, 397 ; Miller v. Stewart, 9 Wheat. 680; United States v. Tillotson, Paine, 305; Commissioners of Berks v. Ross, 3 Binn. 520 ; Ship Nathaniel Hooper, 3 Sumner, 543 ; Thompson v. Steam- boat J. D. Morton, 8 Ohio, U. S. 222 ; Lane v. Townsend, Ware, 286. [America^.] 1546 PRACTICE. Pt. II. In the High Court. Cap. 19. taken from the Americans, condemned as lawful prize, and the sentence appealed from, the execution of the sentence should not be suspended byreasonof the appeal, if sufficient security was given to restore the ship, or the full value thereof, in case the sentence appealed from was reversed. Held, that such security was not a strict recognizance, but operated as a stipula- tion to abide the decision of the Court of Appeals ; which court was not bound to interpret the words "full value" by any definite measure, but had a discretionary power of declaring what was the full value, and of enforcing payment thereof, accordingly. Brymer v. Atkins, 1 H. Black. 164 ; 2 Tidd's Prac. 983. 799a. In an action by a bottomry bond- holder, the interests of a mortagee and of a part owner being distinct, the court was of opinion that in such a case separate bail should be given. The Royal Arch, Swabey, 274. 800. In an action of collision against the F., a foreign vessel, she was released on bail for £300. After judgment against her, and ascertainment of damages and costs at £350, the plaintiffs obtained leave to re-arrest her for the balance. The TVs solicitors, to avoid the re-arrest, gave an undertaking for supplementary bail. Sub- sequently actions for wages and necessa- ries were instituted against the F., and judgments obtained, and she was sold, and the proceeds paid into court. Held, that the plaintiffs in the collision action were not entitled to be paid out of the pro- ceeds in court, to the prejudice of the other claimants. The Falk, 4 Asp. 592. 801. The effect of taking bail in an action is to release the ship altogether in that action. The bail represents the ship. The Kalamazoo, 15 Jur. 386. 802. A bail bond containing the names and descriptions of the sureties was merely signed by them without the addition of their descriptions and addresses. Held, sufficient. The Tamarac, 1 Lushington, 28. 803. Semble, the lien of a suitor in rem is not extinguished by the substitution of bail and the release of the vessel in an- other action. Harmer v. Bell {The Bold Buccleugh), 7 Moore, P. 0. 0. 274, 275, 279, 282 ; 14 Jur. 134 ; 19 L. T. 235 ; The Clara, Swabey, 7 ; 2 Jur. N.S. 46 ; The ' Wild Ranger, 7 L. T. N.S. .725. 804. In the Prize Court, when property is delivered on bail to the claimant, he is bound, on the one hand, by the appraised value, and cannot be called upon, on the other hand, to bring in more than the ap- praised value. The Jonge Bastiaan, 5 C. Eob. 322 ; The Betsey, Ibid. 295. So, too, he cannot be allowed expenses attending the property after it is delivered to him on bail. Ibid. 804a. As to whether a guarantee was, under certain circumstances, equivalent to bail, see The Christiansborg, 10 P.- D. 141, C. A. ; 54 L. J. Adni. 84. 805. In an action in rem for necessa- ries, the defendants obtained an injunction from Chancery, restraining the plaintiffs from prosecuting the action ' ' until further order." Held, that under such injunction the court would not order payment to the defendants of money lodged in lieu of bail. The Lion, 1 Asp. N.S. 321. [Ikish.J 806. A third mortgagee instituted a suit against a ship of which the defend- ant was first mortgagee in possession, and caused her to be arrested. The defendant, to obtain the release of the ship, paid into court £500 in lieu of bail, and then sold the ship for a sum less than his mortgage. The plaintiff, when the cause was ripe for hearing, abandoned the suit, and the £-500 was paid out to the defend- ant. Held, that the defendant was en- titled to interest at £4 per cent, per annum on the £500, for the time it remained in court. The Western Ocean, L. E. 3 A. & E. 38. 807. The proper address of a proposed surety is his business address, not his private address. The Ocean, 3 February, 1885. 807a. A ship having been arrested in the Court of Admiralty, the plaintiff, at the request of P., the owner of 62-64th, entered into a bond for her release. This took place in the absence of the defen- dant, who was owner of the remaining two 64ths. Judgment was given against P., who became insolvent, and the plain- tiff therefore had to pay the amount for which he was bound. Held, that he was entitled to recover the sum he had so paid from the defendant. Barker v. Highley, 2 N. E. 489 ; 10 Jur. N.S. 391. 808. For form of bail bond, see E. S. C. 1883, App. A., Pt. 2, No. 13. 2. Justification.^ (a) Generally* 809. In every case of bail taken in (257) There must be a separate affidavit of justification for each surety. PRACTICE. Pt. II. In the High Court. Cap. 19. 1547 Admiralty actions in rem the sureties shall justify, gee Ord. XII. r. 19, No. 89. 810. For form of affidavit of justifica- tion, see E. S. C. 1883, App. A., Pt. 2, No. 14. (b) Cross-examination. 811. A plaintiff has a right to require the attendance for cross-examination of sureties, who have justified as hail for a ship in a suit in rem ; hut he does so at his peril as to costs and damages occa- sioned by the delay of the ship under arrest pending such cross-examination. The Don Ricardo, 4 Asp. 225. See also as to objections to bail, Nos. 824—831, infra. 3. By more than Tioo Sureties.* 4. Before whom taken. 812. In Admiralty actions in rem, bail may he taken before the Admiralty re- gistrar, or before any district registrar or commissioner to administer oaths in the Supreme Court, and in every case the sureties shall justify. Ord. XII. r. 19, No. 89. 813. No commissioner shall take bail on behalf of any person for whom he or any person in partnership with him is acting as solicitor or agent. Ibid, r, 21, No. 91. 5. Before a Commissioner ta administer^. Oaths.'f (a) Notice of Bail and Affidavit of Service. 814. The solicitor for the defendant giving bail is to serve on the adverse solicitor a notice containing the names and addresses of the sureties and of the commissioner before whom the bail was taken. See Ord. XII. r. 20, No. 90. 814a. A copy of this notice verified by affidavit is to be filed with the hail bond. Ibid. (b) Filing of Bail Bond, Notice and Affi- davit^ 815. A hail bond shall not, unless by consent, be filed until after the expiration of twenty-four hours from the time when such a notice so verified shall have been served upon the adverse solicitor and filed with the bail bond. Ibid. 816. The delays required by these rules with respect to the taking of bail in * (258) When an action in a large amount has been entered the court has, on applica- tion, allowed bail to be given by as many as four or five sureties, they being separately bound in amounts equalling together the amount of the action. t (259) There were formerly three modes of proceeding in giving bail in Admiralty actions. 1. Before a standing commissioner. 2. By commission. 3. In the Admiralty registry. All these are now practically ob- solete, and the practice now is to take bail before a commissioner to administer oaths in the Supreme Court in much the same way that bail was formerly taken before a stand- ing commissioner. See as to bail by commis- sion, sect. 8, infra, and as to bail in the Admiralty registry, sect. 9, infra. (260) Bail is taken before a commissioner to administer oaths in the Supreme Court in the mode following : — Prepare bail bond and affidavits according to the forms prescribed in App. A. Pt. II. Nos. 13, 14. Procure the bond to be duly executed, and the affidavits of justification duly sworn to by the sureties before a commissioner,, and file the same twenty-four hours (or less by consent) after notice of bail so taken. t (261) No form of notice of bail is given by the B. S. C. of 1883. The notice, how- ever, should be entitled in the cause, and intimate that the solicitors for the parties 5 o 2 giving bail tender the persons whose names, addresses, and occupations in life are therein mentioned as bail on behalf of the parties giving bail in the sum in which the bail is taken to answer judgment in the action, and that the bail has been taken before the com- missioner to administer oaths in the Supreme Court therein mentioned. It is dated and signed by such solicitor, and addressed to the opposite solicitor. (261a) File in the registry bail bond, duly executed, affidavits of justification, and affi- davit of service of notice. File them with a minute, which must bear a 5«. adhesive stamp for each of the documents filed. In salvage actions affidavits of the value of the salved property must also be filed. (262) Bail in this form was heretofore taken before a standing commissioner, of whom only a few were appointed, and these are now generally commissioners to admi- nister oaths in the Supreme Court, and have as such as much authority to take bail as they had formerly as standing commissioners. (263) The practitioner is then entitled to the release. (263a) The delay of twenty-four hours may be waived by the consent of the adverse solicitor, and it usually is so in cases in which a release is urgently required. This consent where given is indorsed on the bail bond. 1548 PRACTICE. Pt. II. In the High Court. Cap. 19. Admiralty actions, may he dispensed with by consent of the solicitors in the action. Orti.LXIV. r. 10, No. 970. 6. By Commission* 7. In the Registry of the Admiralty Division.^ 8. To Counter-claims or in Cross Actions.\ 817. In Admiralty actions in rem a * (264) When bail was taken by commis- sion, a commission issued in each case from the Admiralty registry addressed earlier to commissioners to administer oaths in Admi- ralty, or to other persons duly qualified to administer oaths, and later, " to all and sin- gular commissioners to administer oaths in the Supreme Court of Judicature in England." Before one of these the bail bond was, in virtue of the commission, executed by the sureties, who were also at the same time sworn to their affidavits of justification. (264a) The commission was prepared in the registry from a praecipe for commission filed by the practitioner, and handed in with forms of commission, bail bond and affidavits of justification; and shortly afterwards the com- mission, under seal, with bail bond and affi- davits of justification annexed to it, was handed to him. (>265) The commission was executed be- fore any one of the parties to whom it was addressed. (265a) On returning the commission and papers executed,, and the affidavits of justi- fication sworn to twenty-four hours after notice of bail so taken, and with affidavit of such service the practitioner was entitled to a release. (266) This mode, involving the useless ex- pense of a commission in every case, is now considered by the officials in the registry to be .abolished, and they would not issue a commission for such purpose except by special order of the judge. It might possibly be ob- tained under special circumstances, as where no commissioner to administer oaths in the Supreme Court is resident within many miles of the place where the bail reside ; but Ord. XII. r. 19, No. 89, defines the parties who may take bail, and inf erentially therefore excludes bail being taken by commission. t (267) When bail was given in the registry the solicitor for the defendant giving bail filed in the marshal's office a praecipe for notice of bail, and thereupon received a notice of bail, a copy of which he served on the ad- verse solicitor. (268) The names and address of a referee as to the sufficiency of each of the parties proposed as bail, was required to be inserted in the praecipe for notice of bail filed in the marshal's office ; referencesto bankers, though not indispensable, were preferred, and secured an earlier report. (269) Upon receiving the praecipe for notice of bail, the marshal made inquiries of the parties given as referees and others, and if satisfied therefrom he, on the morning after receiving the notice, made his report as to the sufficiency of the bail. (270) After the expiration of twenty-four hours from the time when the notice of bail had been so served, if the marshal had re- ported on the sufficiency of the sureties, the solicitor was entitled to take up the marshal's report. . (271) The marshal's fee for the report was 10s., which was paid in stamps at the time of obtaining the report. See S. 0. Fees of 1884, No. 99. (272) Upon receiving the marshal's report the solicitor deposited the same in the re- gistry, with a praecipe for bail bond and the notice of bail. The solicitor was then in- formed at what hour the sureties might at- tend. The stamps required were on the praecipe, os. ; on the bail bond, 7s. 6d. (273) If the report was deposited in the registry before eleven o'clock in the morning, the bail bond was ready for execution the same day. If the report was not deposited until after eleven o'clock, the bail bond would ordinarily not be ready until the next day. (274) At the hour named the solicitor at- tended in the registry with the sureties, who then signed the bond before the registrar, or by his directions, before one of the clerks in the registry. (27o) When the bail bond had been exe- cuted by the sureties it was filed with a minute. No notice of filing the bail bond was required to be given to the plaintiff's' solicitor, and no notice was ordinarily given, the notice of bail previously served on him being presumed to be sufficient. The soli- citor was then entitled to the release. (276) The attendance of the sureties in the registry was productive of so much incon- venience, that this mode of taking bail has fallen into desuetude, and is never now adopted. (277) The marshal's report was formerly accepted in lieu of justification of sure- ties, but it would seem to follow, from the terms of E. S. C. of 1883, No. 89 (No. 809, supra), that in these cases also the sureties would be required to justify, so that nothing would be gained by the marshal's report. (278) There is also no provision in the E. S. 0. of 1883, for this mode of procedure, except that forms are given in App. A. , Pt. II., Nos. 10—13 thereto, for notice of bail by the marshal, for the marshal's report, for ^the praecipe for bail bond, and for the bail bond when executed in the registry, and in S. 0. Pees of 1884, the fee before mentioned for the marshal's report (see note 271) is stated. t (279) If in the principal cause security has been given by the defendant to answer judgment, and in the cross cause sw!]^ has not been given to answer PRACTICE. Pt. II. In the High Court. Cap. 19. 1549 warrant of arrest may be issued at the instance either of the plaintiff or the de- fendant. See Ord. V. r. 16, No. 38. 8 1 8 . But prior to this rule the Admiralty Court could not in an action of damage, where the defendant had counter-claimed, order the plaintiff to find hail. It could only stay the plaintiff's proceedings until he gave bail. The Alexander, 5 Asp. 89. 819. And if in an action of collision the- defendant's vessel was not arrested, and he was not required to give security, he could not, by voluntarily giving security, compel the plaintiff to give security to answer his, the defendant's, counter-claim under the Admiralty Court Act, 1861, s. 34. The Alne Holme, 4 Asp. 591. 820. But semble, the defendant counter- claiming could now require bail even though the plaintiff abandoned his action. See McGowan v. Middleton, 11 Q. B. D. 464. 9. Freight* 82 1 . When a prima facie title to freight is shown, a ship arrested for freight will be released upon bail being given in the action. "When cargo is arrested for freight it is otherwise, and the court will order the owners of cargo to pay the freight into court. The Ringdove, Swa- bey, 312. See also c. 20, p. 1557. 10. Security for Costs.] 822. See on this head, tit. Costs, c. 19, p. 363 ; as to security for costs by the counter-claimant, ibid. p. 365 ; as to se- curity for costs in various actions, ibid. pp. 365, 366 : and see same title and chapters in Addenda. 11. Sufficiency. J 823. Sureties to a bail bond must not be partners. The Corner, 3 N. E. 94 ; 12 L. T. N.S. 62 ; 33 L. J. Adm. 16. 12. Objections to — .§ 824. Objection to bail should be by affidavit, not by petition. The Corner, 10 and 11 November, 1863, No. 1927. therein, the court may, if it think fit, sus- pend the proceedings in the principal cause until security has been given to answer judg- ment in the cross cause. The Admiralty Court Act, 1861 (c. 10), s. 34. And under this act the court will order a plaintiff to give bail to a defendant counter-claiming when the plaintiff is a foreign sovereign whose ship cannot be arrester!. The New- battle, 10 P. D. 33; 54 L. J. Adm. 16; 52 L. T. 15 ; 33 W. E. 318 ; 5 Asp. 356. (280) By the 34th section of the Admiralty Court Act, 1861, when bail to answer judg- menthas been given by the defendant in the principal cause, the same party, when plaintiff in a cross cause, may obtain a similar secu- rity, notwithstanding that his opponent may be resident within the jurisdiction of the court. The Cameo, 1 Lushington, 409; 5 L. T. N.S. 773. f281) This power to stay proceedings in the principal cause until bail has been given by the defendants in the cross cause may be exercised, even though the ship of the de- fendants in the cross cause has been lost, and the defendants themselves are foreigners. The Charkieh, L. E. 4 A. & E. 120 ; 42 L. J. Adm. 70 ; 2 Asp. N.S. 121 ; 22 W. E. 63. (282) See as to cross actions, p. 1495. (283) The procedure by counter-claim has superseded cross actions. • (284) The owners of the ship may give bail for freight as well as for the ship, as both belong to them, but owners of cargo can- not do so, as the freight does not belong to them. (285) But in cases of freight pro rata itineris, they are allowed to give bail. See Coote's Adm. Prac. p. 25. t (286) Security for costs is given in the same manner and on the same form as bail, the words " so far as regards costs" being substituted for the words "with costs" in the bail bond. J (287) Eesidence out of the jurisdiction is a good ground of objection to bail. (288) Two persons trading in partnership will only be accepted as one bail. (289) On bail being filed or tendered, the adverse solicitor may enter a caveat against the release of the property, in order to admit of his communicating with his client as to the bail. (See Pt. I. c. 6, p. 1477.) If instructed to object to them, he should give notice thereof to the opposite solicitor and prosecute his objections with all dispatch. Ibid. p. 1478. (290) The proctor of the plaintiff may ob- ject to the bail, but if he neglects to do so his party is excluded from demanding more substantial security at a future pericd. Clerke's Prax. Adm. 29. On the death or insolvency, however, of either of the bail, further security may be demanded. Ibid. 31, n. And also, if being sufficient at the time of their being tendered as bail, they afterwards become lapsi facultatibus. Ibid.' 33. §(291) The party objecting may at anytime waive his objections, but if so will of course, on the application of the adverse party, be condemned in the costs attendant on such ob- jections up to the time of his waiving them, and it may be in damages as well as costs, 1550 PRACTICE. Pt. II. In the High Court. Cap. 19. 825. Semite, objections to the _ suffi- ciency of bail may be made by motion on affidavits. The Corner, 3 N. E. 94 ; 33 L. J. N.S. Adm. 16. 826. On sucb a motion the court referred the matter to the registrar to inquire sum- marily into the sufficiency of the bail, after hearing evidence thereon. Ibid. 827. Bail by two partners was taken before standing commissioners at Liver- pool, and filed on Saturday -in London. On Monday communications took place between the solicitors in Liverpool, ad- mitting the insufficiency of the bail ; a release was obtained in London on the same day. Instructions to object to the bail were sent up on Tuesday, motion for re-arrest on the ground of insufficiency of bail granted, reasonable diligence having been used in taking the objection. Ibid. 828. Semble, had the only ground for the motion been the fact of the bail having been given by two partners, the court would have held the parties estopped from taking that objection by the fact of a release having been issued. Ibid. 829. On objection to the sufficiencyof sureties, it appearing that the sureties were good and sufficient, the court re- leased the vessel, with costs and damages against the detainers from the day fol- lowing the notice of bail. Ibid. 829a. As to the cross-examination of the bail as to their sufficiency, see No. 811, p. 1547. 13. Excessive. 830. See tit. Costs, c. 38, s. 10, p. 409, Ibid, in Addenda, and No. 289, p. 1492 ; also The Earl Grey, 1 Spinks' Eccl. and Adm. Eep. 180. 830a. Plaintiff having obtained exces- sive bail, afterwards condemned in the costs of giving bail. The George Gordon, 9 P. D. 46 ; 53 L. J. Adm. 28 ; 50 L. T. 371 ; 32 W. E. 596 ; 5 Asp. 216 * 831. If the bail demanded is too large a sum, the defendants should move to re- duce it. The Melissa, 6 Jur. 104. [Ieish.] 14. Reduction. 832. An action upon various claims was entered, and bail given in the sum of £1,500. The court having, upon mo- tion, decided that it had no jurisdiction over some of the claims, the amount for which bail was necessary was reduced to £460, i. e., £260 to answer the remaining claims, and £200 for costs. The Chieftain,- 8 L. T. N.S. 120; 32 L. J. Adm. 106; 9 Jur. N.S. 388. 832a. In two actions of salvage of a derelict steamship and cargo of large value, and in each of which the action was entered in the sum of £5t),000, the court on motion for the defendants re- duced the amount of bail to be given in each action to £25,000. The Ameriqw, 22 April, 1874. 833. If it subsequently appears that the amount of bail given is beyond the proved value of the property the court will, on motion, order the amount to he reduced. See The Duehesse de Brabant, Swabey, 264; The Chieftain, 32 L. J. Adm. 106; 8 L. T. N.S. 120; The Staffordshiref~L. E. 4 P. C. 194; 41 L. J. Adm. 49. See also No. 831, supra, and No. 835, infra. 15. Amendment. 834. In a cause of damage hail had been given on behalf of The Pet-severance, of Swansea, John Tetherby, master. The vessel and bail were subsequently con- demned in damages and costs. , Applica- tion to amend the bail bond by altering the word "Swansea" to "Appledore," and ' ' John " to " George " granted. The Perseverance, 2 Browne's Oiv. and Adm. Law App. 543, 553. 16. Ameliorations. 835. A vessel arrested in a cause of col- lision had repairs effected on her, render- ing her of greater value than at the time of her arrest. Held, on motion for release, that she ought to be released on bail being given for her value at the time she was arrested. The St. Olaf, L. E. 2 A. & B. 360 ; 38 L. J. Adm. 41 ; 3 Asp. 241. See also as to ameliorations generally, tit. Ownees, Pt. I., c. 8, p. 1226. 17. Rights and Liabilities.^ 836. Sureties are no parties in the suit, in consequence of the detention of the ves- sel. (See tit. Costs, c. 20, s. 3, p. 370.) So, also, the adverse party may withdraw the bail objected to, and give other bail, or leave the ship under arrest, and will be similarly con- demned in the costs incurred by his opponent by reason of such insufficient bail, Pending the question of the sufficiency of bail the ship will remain under arrest. * (292) "Where the bail required is exces- sive, the court now usually condemns toe party requiring the excessive bail in the costs of bail. f (293) The fidejussor had the advantages PRACTICE. Pt. II. In the High Court. Cap. 19. 1551 nor can they interfere with, the conduct of the cause at any time, except -where the principal is guilty of fraud, or there is collusion between him and the adverse suitor, when the sureties are entitled to apply to the court, alleging such fraud or collusion. The Harriett, 1 W. Eob. 199, 203 ; 6 Jur. 197 ; 1 N. of C. 327. 837. For provisions entitling a surety who discharges his principal's liability to an assignment of all securities held by the creditor, and to stand in the place of the creditor and use his name in any action to obtain from the principal debtor or any co-surety indemnification for the advances made, see the Mercantile Law Amend- ment Act, 1856 (c. 97), s. 5. 838. In determining the liability of bail the court will be governed by general principles, not by accidental circumstances accompanying the case. The Harriett, 1 "W. Eob. 197; 6 Jur. 197; 1 N. of 0. 327. 839. In investigating the liability of bail the principle of law which the Court of Admiralty would take for its guid- ance was the same as that which ap- plies in cases of principal and surety; and in applying this principle the court would be governed by the same rules which prevail in the courts of law and equity, and if a court of equity would relieve, though a court of law could not, this court would consider it to be its duty to afford relief, as exercising a jurisdic- tion equitable as well as legal. Ibid. 840. Sureties are only bound to the extent of the obligation expressed in their bond, and not beyond its plain and ob- vious meaning. Ibid. 1 W. Eob. 192. 841. When bail has been given, the decree of the court cannot be extended as to the bail beyond what they, who are strangers to the cause, have voluntarily made themselves responsible for. The Volant, 1 W. Eob. 388. 842. The liability of the bail is founded on the personal responsibility of the owner, and restricted thereto. The John Dunn, 1 W. Eob. 161. 843. Claimants in subsequent actions can have no title to recover against bail in the first action, or to participate in any funds which such bail might bring into the registry in discharge of their liabili- ties as bail. The Saracen, 2 W. Eob. 457 ; 10 Jur. 398. See also The Wild Ranger, 2 N. E, 402 ; The Baldur, 4th Nov. 1853. 844. In a cause of damage the bail, having by the usual bond bound them- selves to pay what should be adjudged by the court with the expenses, cannot (on the damage being pronounced for, with an order of reference to the registrar and merchants) be called upon to pay a sum fixed by private settlement and agree- ment between the parties, though in acts of court, as the amount of the damage in lieu of the reference to the registrar and merchants ; nor can they either be called- upon for the payment of the costs in such cause, separate and distinct from an ad- judication for damages. Motion for at- tachment against the bail in both respects rejected. The Harriett, 1 W. Eob. 182 ; 6 Jur. 197 ; 1 N. of C. 327. 845. In a cause of damage the bail is only liable to the extent of the value of the ship and freight (then the extent of owner's liability), and not for the full amount of the damage done, even though, as in the present case, bail may have been given for a sum beyond the value of the ship and freight. The Duchesse de Brabant, Swabey, 264 ; 30 L. T. 22 ; 6 W. E. 329 ; The Richmond, 3 Hagg. 431 ; The Mary Caroline, 3 W. Eob. 105 ; 12 called leneficium ordinis, by which he could foroe the creditor first to sue the principal, and beneficium cedendarum actionum, that of obliging the creditor to assign to him on being paid, to enable him to sue a fellow- surety. Minors could not be sureties, nor soldiers, nor women. The surety might pay before action brought. If the surety were in peril, he might sue before term of pay- ment to be indemnified or discharged ; rf no personal security could be had the. creditor might have a juratory caution from his debtor. 1 Browne's Civil and Adm. Law, p. 362. (294) In case of default the bail and prin- cipal might be imprisoned. 1 Eol. Abr. 531 ; Godb. 193, 260 ; 2 Chitty's Gen. Prac. 536. (295) As to proceedings at law or in equity by surety against his principal for indemni- fication or exoneration, see Smith's Mercan- tile Law (9th ed.), p. 472; Smith's Leading Oases (8th ed.), vol. i. p. 164. (296) The practice of Courts of Admiralty does not admit of a surrender of the principal in exoneration of bail. Care v. Bullas, 1 Abb. Adm. 555. [American.] (297) The obligation of a surety in a stipu- lation given on release from attachment in Admiralty is limited to the sum named in the stipulation, and as surety he cannot be compelled to pay more than that amount. Brown v. Burrows, 2 Blatch. Ct. Ct. 340. 1552 PRACTICE. Pt. II. In the High Court. Cap. 19; Jur. 945 ; 6 N. of C. 539 ; The Mellona, 3 W. Bob. 16 ; 12 Jur. 271 ; 6 N. of 0. 62. 846. The owners of a vessel doing da- mage are responsible to the full extent of their statutory liability, whether it be more or less than the amount of bail taken. The Mellona, 3 W. Bob. 22; 6 Notes of Cases, 72. 847. By the expressions in The Mel- lona, " supposing bail was given to an insufficient amount, the court would raise it to the proper amount," the court did not mean that it was possible to compel the individuals giving bail to exceed the amount for which they had made them- selves voluntarily responsible, but that the court would have a right to require further security from those who owned the vessel. The Temiscouata, 2 Spinks' Eccl. and Adm. Eep. 211. 848. Queer e, is it not necessary to pro- ceed against the principal in the first instance, before proceedings can be insti- tuted against the bail ? No such neces- sity, however, can arise where the prin- cipal is a bankrupt. The Harried, 1 W. •Bob. 193. 849. In a cause of bottomry bail was given generally for the ship and freight. The bond having been declared valid as to the ship, but invalid as to the freight, held, by the Privy Coltneil, on appeal from the Admiralty Court, Ireland, that the bail was only liable to the extent of the value of the ship. The Staffordshire, L. E. 4 P. C. 194; 41 L. J. Adm. 49; 1 Asp. N.8. 101, 365. 18. Discharge.* 850. If a man become surety for an- other for a sum of money to be paid at a stipulated period, and the person to whom the money is due extends the time of payment without the knowledge or con- sent of the surety, that is, in the legal sense, a giving time, and the consequence would be that the surety would be ab- solved from responsibility. Such a prin- ciple, however, cannot be applied, to bonds given in the Court of Admiralty where no time is specified. Mere passive neglect or delay to move onward would not be such a giving time, for mere for- bearance does not exonerate the bail, at least in the Court of Admiralty. Settling the amount of damage out of court is not a giving time in the strict legal accepta- tion of the term. The Harriett, 1 W. Eob. 195 ; 6 Jur. 197 ; 1 Notes of Cases, 327. 851. Acts of the adverse party, which might by possibility have prejudiced the bail, entitle the bail to be discharged. It is not necessary to inquire whether any prejudice has actually occurred. Queer -e, if any alteration whatever is made in the contract, or the mode of executing it, is not the responsibility of the bail discharged? Ibid. 1 W. Eob. 198; 6 Jur. 197 ; 1 Notes of Cases, 327. 852. In a cause of damage, in which a decree was obtained in favour of the party suing, and a reference to the regis- trar and merchants directed, the proctor of that party having agreed the amount of damage in acts of court with the ad- verse proctor without such reference, such acts held to estop both parties from further carrying out the decree of the court as regards the reference to the registrar and merchants, and the obliga- tion of the bail being to pay what shall be adjudged by the court, and such agreement not being an adjudication by the court ; held, further, that such acts enured to a release of the responsibility of the bail, and that such responsibility could not be again revived. Motion for attachment against bail rejected, and bail dismissed. Ibid. 85.3. A surety is not released from his bond by mere lapse of time, unless where payment was to have been made within * (298) As after bail taken the res is re- leased from the lien, the sureties cannot acquit themselves of their liability by sur- rendering the res ipsa. Ooote's Eccl. and Adm. Prac. 90. (299) As to the liability of sureties, and as to their discharge by giving time, or other circumstances, see Archbold's Practice (14th ed. by Ohitty), vol. 2, pp. 1506 et seq. (300) It has not been the modern practice of the court to permitthe bail bond tobecancelled or delivered out of the registry. The decree of the court dismissing the bail js deemed sufficient completely to discharge their lia- bility. (301) In order to be discharged from ft bail bond or stipulation given in Admiralty, ) the party must establish fraud, deceit, duress, illegality of consideration, or other matter such as at law, or in equity, would avoid a common money bond, or would entitle a party to be relieved from it. Cure v. Bullut, 1 Abb. Adm. 555. [Ameeican.] (302) See also as to discharge of bail, Murphy v. Boberts, 30 Ala. 232. [Ameri- can.] PRACTICE. Pt. II. In the High Court. Cap. 19. 1553 a limited time, and the time has been extended without his consent or know- ledge. The Vreede, 1 Dodson, 7. 854. The mere passive inactivity of the person to whom a guarantee is given, his neglect to call the principal debtor to account in a reasonable time, and to enforce payment against him, does not discharge the surety; and the rule at law and in equity is the same, that there must be some positive act done by him to the prejudice of the surety, or such degree of negligence as to imply conni- vance and amount to fraud. Black v. Ottoman Bank, 8 Jur. N.S. 801 ; 10 W. E. 871 ; 6 L. T. N.S. 763. 855. To discharge a surety for the due performance of duties, there must be on the part of the obligee an act of conni- vance or gross negligence amounting to wilful shutting of the eyes to the fraud, or something approximating to it. Daw- son v. Lawes, 23 L. J. Chanc. 434. 856. A surety is bound only to the letter of his engagement ; if that engage- ment is altered in a single line, no matter whether it be altered for the benefit of the surety, or whether the alteration be innocently made, the surety has a right to say the contract is no longer that for which he engaged to be the surety, and he is entitled to be relieved from the en- gagement. Blest v. Brown, 8 Jur. N.S. 602; 10 W. E. 569; 6 L. T. N.S. 620. 857. Liabilities of sureties once can- celled cannot be revived. The Harriett, 1 W. Eob. 204; 6 Jur. 197; 1 Notes of Cases, 327. 858. Held, in 1734, that bankruptcy did not discharge a surety in the Admi- ralty. Russen Sf Co. v. Colby, cited in The Vreede, 1 Dodson, 2. 859. The payment into court of the amount awarded and costs would enure to a discharge of the bail. The North American, May 10, 1860. 860. Bail given to answer adj udication as to portion of cargo being Danish pro- perty cannot, on the cargo being after- wards condemned to the Crown in conse- quence of war with Denmark, be com- pelled to make payment at the suit of the Crown under that condemnation ; such condemnation having no connection with the question to answer which the bail was given. Bail dismissed. The Nied Elwin, 1 Dodson, 50. 861. Bail given to the actual captor to answer adjudication of property which was, from' the locality of the capture, sub- sequently condemned to the King in his office of Admiralty ; held, to be answer- able to the Admiralty. Ibid. 53. 862. Bail given to answer adjudication as to cargo captured and which had been afterwards condemned, decreed to be en- forced, on application to that effect nine years after condemnation. An attach- ment decreed against one of the sureties (the owner and the other surety haviiig become bankrupt) at the suit of the captor, he having shown the laches not to have arisen with himself, but with the agent, who, under the circumstancep, could not be rendered liable. The Vreede, Ibid. 8. 863. By the civil law, sureties are not discharged from their liability to satisfy the creditor, though the benefit of a hypothec of the debtor is lost by the laches of the creditor to enforce his de- mands. Macdonald v. Bell, 1 Moore, P. C. C. 15. 864. Motion to dismiss bail and cancel the bail bonds, in pursuance of an agreement between the litigant parties, granted. The Partridge, 1 Hagg. 82. 865. Defendants and their bail dis- missed. Subsequent motion by plaintiffs for costs. Held, that the court had no power to grant the motion after such dismissal, though the case was one in which costs would have been decreed if asked for in due time. The Countess of Levin and Melville, 5 L. T. N.S. 290. 866. Bail given to answer judgment in a cause where the appearance is under protest will not be discharged on account of a change in the indorsement on the writ of summons, which renders the pro- test of no avail. The City of Mecca (C. A.), 4 Asp. 412 ; 44 L. T. 750. 867. Where two or more sureties con- tract severally, the creditor does not break the contract with one of them by releasing the other. The contract remaining entire, the surety, in order to escape liability, must show an existing right to contribu- tion from his co-surety which has been taken away or injuriously affected by his release. Ward v. The National Bank of New Zealand, L. E. 8 App. Cas. 755. 868. As to the discharge of sureties in Equity, see Tudor's Leading Cases in Equity, 5th ed. vol. ii. pp. 992 et seq. 19. Commission paid to Sureties. 869. Commission paid for bail in a salvage action will not be allowed as part of the damages recoverable by the salved vessel in an action of damage. The 1554 PRACTICE. Pt. II. In the High Court. Cap. 19. British Commerce, 9 P. D. 128; 53" L. J. P. D. 72. Though, in certain circum- stances, they may be recovered as damages in other actions. The Numida, The Col- lingrove, 10 P. D. 158 ; 54 L. J. Adm. 78 ; 34 W. E. 156; 5 Asp. 335. 20. By Mortgagee. 870. A mortgagee, though entitled to intervene in an action by material men, is not entitled to the release of the vessel on merely giving bail for payment of the claim if held to take priority of the mort- gage. The Acacia, 4 Asp. 226. [Irish.] See also No. 806, p. 1546. 21. In Actions of Bottomry.* 871. Bottomry action against ship, cargo, and freight. The owners of cargo gave bail in £350. The proceedings were in posnam. The bond was pronounced for, the ship sold, and the proceeds of sale, and the freight, were brought into the re- gistry. The deficiency on the ship's ac- count for the bond and proctor's costs amounted to £409 : 9s. 2d., which the owners of the cargo were called upon to pay. They tendered £350, the amount of bail. Motion against them to pay the balance rejected. Held, that though the master may become ex necessitate agent of the owners of the cargo, he can render them liable only to the value of the cargo ; and any liability beyond can arise only from the owners' conduct in contesting the bond ; that the amount of their bail is the limit of their liability, as regards the bond ; that the bail might have been taken to the full value of the cargo ; and that its not having been so taken was the act of the bondholder himself, who must abide by the consequence. Nostra Senora Del Carmine, 1 Spinke' Eccl. and Adm. Eep. 303; 18 Jur. 730. 22. In Actions of Collision.] See Nog. 818—820, 835, 844—846, 862, supra. 23. In Actions of Possession. 872. In consequence of the representa- tions which have been made in numerous instances of the damages sustained by ships arrested in causes of possession lying for a length of time in harbour, the court has recently been induced to release them on bail. The Peggy, anno 1809, 4 0. Eob. 306. 872o. In actions of possession ship ordered to be released on bail in double the value of the property. The St. John Baptist, alias The Dove, anno 1698, Mars- den's Eep. p. 279; Oultony. The Richard and William, anno 1713; Alstrom v. Maartens, 1727 ; Dinwiddie v. Bravo, 1730; The- Peggy, 1802; Ibid. 280; Alstrom v. Houthuyn ; The Success, 1727; Ibid. 310; The Eaglelright, alias The Benjamin, 1730; The Dolphin, 1740; Ibid. ; so also in action of possession of cargo. Ibid. p. 307. 873. Ship released on ordinary bail in an action of possession. The Evangelistria, 46 L. J. Adm. 1 ; 25 W. E. 255.J 874. In a cause of possession, bail is taken as a substitute for the substance of the ship, but does not include a stipu- lation for any earnings that may be made. Application for bail to cover intermediate earnings refused. The Peggy, 4 0. Eob. 304. 875. In a cause of possession promoted * (303) In causes .of bottomry when the action is brought against ship, freight, and cargo, and bail to the full amount of the action is given on behalf of ship and freight, and the ship and freight are ample to meet the amount of the bond and costs, and no prior Uens on the ship appear, the cargo may be entitled to be released without bail ; as, according to the law as to bottomry, cargo cannot be called to contribute until after ship and freight are exhausted, and as in such a case the ship and freight would be sufficient to meet the demand, and bail had been given for the full amount, there could be no claim on the cargo. t (304) In actions of damage by collision bail may be given for the amount of the statutory liability of the defendant, and a sum to carry interest and oosts, but the de- fendants do not increase their liability by giving bail in a larger sum. The Duehesse de Brabant, Swabey, 264; TlieAmalia, Br. & Lush. 157 ; 8 L. T. N.S. 805. t (305) Prior to this case it was doubted whether by the modern practice bail could be substituted for the res in causes of posses- sion, though this often occasioned a great loss on the successful party, arising from the deterioration of his ship from lying up so many months, as well as the expense of pos- session fees. (306) In the American courts it is the practice, though not of very ancient date, to release the ship on bail in causes of posses- sion. Dunlap's Adm. Prac. (2nd ed.), 165 ; The Alligator, 1 Gall. 145. [AyeeicAIT.] (307) Bail in such cases is given for the value of the ship, and her intermediate earn- ings. Ibid, PRACTICE. Pt. II. In the High Court. Cap. 19. 1555 by the original owner against a purchaser under a sale hy the master abroad, pos- session decreed {semble, by consent) to the original owner, on giving bail to answer the other party's interest, and to cover freight, &c, while in his possession. Application of the purchaser to release the ship to him on bail, refused. The Partridge, 1 Hagg. 81. 876. A mortgagee was in possession of a vessel which he had offered for sale. The vessel was arrested by the owner. The court ordered a release of the vessel to the mortgagee with leave to sell on his giving bail to bring in the proceeds of sale. The Plym, cited in Coote's Adm. Prac. 24. 877. In a cause of possession brought by the owner of 43 sixty-fourth shares against the master, owning the remaining shares, held, that the latter was not en- titled to retain possession of the vessel upon an offer of security to the amount of his co-owner's interest. The Kent, 1 Lushington, 495. 24. In Actions of Restraint.* 878. The bail bond should be in the amount of the value of the shares of the dissentient owners, either as agreed be- tween the parties or appraised by the court, for the safe return of the ship to a particular port. The Robert Dickinson, 10 P. D. 15. 878a. Additions proposed by the plain- tiffs to a bond in this form rejected. Ibid. 8785. It has never been the practice to give bond in double the value. Ibid, f 879. Qutere, whether prior to The Robert Dickinson, supra, such bonds should not be framed as for the vessel's return to any, not a particular, port of this coun- try. The Margaret, 2 Hagg. 278; and see The Regalia, 5 Asp. 338 ; 51 L. T. 904, and No. 2249, infra. 879a. Prior to the practice as laid down in The Robert Dickinson, supra, if the vessel was lost, the court, before enforcing payment of the bond, would direct a refer- ence to the registrar and merchants to inquire into, and report upon, the value of the plaintiff's share in the vessel. The Pactolus, 8th Dec. 1863. 880. As to actions of restraint, i.e., by minor part owners against major part owners to obtain security for- the safe return of the vessel from a voyage of which the minor part owners disapprove, see tit. Ownehs, Pt. VIII. c. 3, p. 1418. 880a. As to the effect of the taking of such bail on the right of the minority owners to share in the profits of the voyage, Ibid. p. 1419. 25. In Actions of Salvage. (a) Generally. 881. Where a vessel had been found to blame in a cause of collision, her owners were allowed to intervene in a salvage suit instituted against the injured vessel, and the court gave them the conduct of the defence on their furnishing bail in lieu of that furnished by the vessel pro- ceeded against. The Diana, 2 Asp. N.8. 366; 31 L. T. N.S. 203. (b) Before Receivers of Wreck. 882. Por provisions authorizing re- ceivers of wreck detaining property for salvage to take security for salvage due, and in cases in England in which the salvage claim exceeds £200, for the High Court of Admiralty of England to deter- mine any question that may arise as to the amount of the security to be given or the sufficiency of the sureties, and to en- force payment of the bond or security in the same manner as if bail had been given in that court, see the M. S. Act, 1854 (c. 104), s. 468. 882a. Prior to the M. S. Act, 1854 (c. 104), a receiver of Admiralty droits, on notice from the agent of salvors, de- tained a ship, which he afterwards re- leased, taking as security a bond from two persons as sureties for the master and owners of the ship and cargo, sub- mitting themselves to the jurisdiction of the Court of Admiralty to answer such salvage as should be decreed by that court ; and unless they should do so, consenting that execution should issue against them, their heirs, executors, and administrators, goods and chattels, where- soever the same should be found. Held, that the Court of Admiralty had no juris- diction to enforce the bond. The Baqnall, 3 W. Eob. 118; 12 Jur. 1008; 6 Notes of Cases, 542. 26. By Plaintiff in Actions of Wages.% 883. A master instituted a suit in a * (308) In the affidavit to lead the warrant it is usual to set forth the value of the plain- tiff's share in the vessel. t (308a) Semble, except in actions of posses- sion. See No. 872a, supra. X (309) By the old practice the court,'in 1556 PRACTICE. Pt. II. In the High Court. Cap. 2a. cause of wages and became insolvent. Application to allow his assignee to pro- ceed in the suit without giving the usual security, he being permanently resident within the jurisdiction of the court, granted. The John Cork, 17 Jur. 306. 27. Under Provisions of the Foreign Enlistment Act. 884. Where a vessel is arrested under the provisions of the Foreign Enlistment Act, 1870, the court has power to admit her to bail with, and semble without the consent of the Crown. The Gauntlet, L. R. 3 A. & E. 319 ; 1 Asp. N.S. 45. 885. The Crown is not entitled to bail for a vessel arrested under the provisions of the Foreign Enlistment Act, 1870, to include costs. Ibid. 1 Asp. N.S. 45. 885a. Bail for a vessel arrested under the provisions of the Foreign Enlistment Act, 1870, extends to the value of the ship and her equipment. Ibid* 28. To answer latent Demands.] 886. Monition granted against the obligors in a bond for latent demands at the suit of a seaman claiming the balance, after receiving a dividend on account of his wages out of the estate of the owner of the ship. The Tecumseh, 13 Jur. 68. SO. Release. 1. Generally. $ 887. Property arrested by warrant shall only be released under the autho- rity of an instrument issued from the causes of wages, required the plaintiff to find bail in one surety to the amount of £30. (310) If, as usually happened, the seaman plaintiff was unable to comply with this regu- lation, he might, on filing an affidavit that he was unable to provide security, or to deposit £30 in the registry, be admitted to his juratory caution, i. e., to become bail himself for the amount. The Franz and Elize, 5 L. T. N.S. 290 ; and see Coote's Adm. Prac. p. 27 ; and The Edwin, 3 Hagg. 360. (311) The usual bond by the master suing for wages having become inoperative by his death, the court directed that another bond be given by the administrator of the deceased master continuing the action. The Sylphide, 10th May, 1860. (312) On a claim for a balance of wages amounting to £11 : 15s., the court intimated that the sum in dispute was so small that it was very desirable it should be settled out of court by the counsel on either side, and directed that if the action should pro- ceed, the seaman should give not merely his juratory caution, but bail to answer costs. The Edwin, 3 Hagg. 366. (313) As to the admission of parties to their juratory caution in the American Ad- miralty Courts, see Dunlap's Adm. Prac. (2nd ed.), 152, 160. [American.] (314) Now that the Court of Admiralty is a division of the Supreme Court, it is appre- hended that, unless in exceptional cases, it will allow plaintiffs in wages actions to bring their actions like other plaintiffs without any such requisition, though subject, as in other cases, to security for costs when the plaintiff is out of the jurisdiction. * (315) The bail bond in this case was conditioned that the defendants should re- store the vessel, and her equipments, or the value thereof, as if ordered by the court to do so, t (316) By the statutes of 13 Rich. 2, c. 5; 15 Rich. 2, c. 3; and 2 Hen. 4, c. 11, all now repealed, certain responsibilities at- tached to the judge and registrar personally in respect of Admiralty proceedings, (317) Therefore, and as, according to the old practice, in proceedings by default a party might come in within a year and a day from the decree, and establish a better claim to the property, it seems to have been required of a plaintiff who had obtained a decree in default proceedings, to enable him to obtain the funds in court before the ex- piration of a year and a day, to give bond to the Queen, to restore the money pro- nounced to be due to him by the court and paid out to him in case any other, person should come in for his interest therein, and establish a superior claim, and to save harm- less the judge, registrar, marshal, and all officers of the court. (318) This form of bond was commonly known as a bond to answer latent demands. (319) By the Rules and. Orders of 1859, now annulled, bail for latent demands was not to be required on payment of money out of the registry, unless the judge otherwise ordered, and now that the Admiralty Divi- sion is a branch of the Supreme Court, and possessed therefore of larger powers, the practice has been superseded altogether. (320) See also as to such bonds, The Sara- cen, 10 "Jur. 397; 2 W. Bob. 453; 4 Notes of Cases, 503; HJur. 255; 6 Moore, P. 0. 0. 75 ; The Tecumseh, 6 Notes of Cases, 668; U Jur. 68; Clerke's Prax. tit. 35; Abb. Sn. (10th ed.), 542. , t (321) By the old practice the instrument of release was called a supersedeas when the warrant was executed by the P™™?' proctor or agent, and a release when tlie warrant was executed by the marshal. PRACTICE. Pt. II. In the High Court. Cap. 20. 1557 registry, to be called a release. Ord. XXIX. r. 1, No. 322. 888. A solicitor, at whose instance any property has been arrested, may, before an appearance has been entered, obtain the release thereof by filing a notice that he withdraws the warrant. Ibid. r. 2, No. 323. 889. A solicitor may obtain the release of any property by paying into the regis- try the sum in respect of which the action has been commenced. Ibid. r. 3, No. 324. 890. A solicitor, who shall have filed a bail bond in the sum in respect of which the action has been commenced, or paid such sum into the registry, and, if the action be one of salvage, shall have also filed an affidavit as to the value of the property arrested, shall be entitled to a release for the same, unless there be a caveat against the release thereof out- standing in the " Caveat Eelease Book." Ibid. r. 6, No. 327. 891. The Court of Chancery appointed certain persons receivers of a freight, which was subsequently, but before they had obtained possession, arrested in a suit in the Court of Admiralty. Upon motion, in the latter court, on behalf of the receivers, release decreed, but with- out costs. The Bloomer, 1 1 L. T. N.8. 46. 892. Two arrestments having been laid on a foreign vessel, one to found juris- diction against the owner, the other pro- ceeding on a summons raised against him, held, that a charter-party entered into by the master on the same day when the arrestment to found jurisdiction was used, did not entitle the charterer to ob- tain a recall of the arrestment to enable the vessel to proceed on her voyage. Thorburn v. De Wolf, Dec. 18, 1847; 10 D. 310; 20 Jur. 105. [Scotch.] 893. Ship arrested in a cause of da- mage and bail given to an amount equal- ling the value of ship and freight (before the limitation of liability was altered to a percentage on the tonnage). Subse- quent actions and ship arrested therein. Motion for release without giving bail in those actions rejected. The William Hutt, 1 Lushington, 26; The Tuscarora, 6th Feb. 1858; and see The Clara, Swabey, 7; 2 Jur. N.S. 46; 26 L. T. 165; The Wild Ranger, 7 L. T. N.S. 725. 894. The ship G. having come into collision with the ship W., the owner of the ship W. caused the ship Gr. to be arrested, but, in consideration of the insurers agreeing to pay to the owners the amount of damage which the ship W. had received by the collision, her owners released the ship G. from arrest. Held, that the word damage included not only the damage to the ship itself, but consequential damage, such as loss of freight and costs in the Admiralty Court. Heard v. Holman, 11 Jur. N.S. 544; 34 L. J. C. P. 239. 2. Freight and Cargo.* 895. Cargo, arrested for freight only, may be released by filing an affidavit as to the value of the freight, and by paying the amount of the freight into the regis- try, or by satisfying the judge that it has already been paid. Ord. XXIX. r. 4, No. 325. And see The Victor, 1 Lushing- ton, 72. 896. When a primd facie title to freight is shown by the defendant, a ship arrested for freight is entitled to be released on bail. When cargo is arrested for freight the owners of the cargo as debtors of freight can only obtain a release of the cargo by paying the freight into court. The Ringdove, Swabey, 311. 897. A vessel was arrested in a cause of collision. At the time of the collision she had a cargo on board ; at the time of the arrest a portion only of such cargo remained on board. The vessel and cargo belonged to the same owner. Held, on motion for release of the cargo remaining on board, that the freight due upon the whole cargo must be paid into court be- fore the portion on board at the time of arrest could be released. The Roecliff, L. E. 2 A. & E. 363. See also Pt. I. c. 9, s. 5, p. 1482. 3. Mode of obtaining — .f 898. For form of release, see E. S. C. 1883, App. A., Pt. 2, No. 16. * (322) Cargo cannot be arrested qua cargo in aotions for damage by collision, see c. 11, s. 5, p. 1519. When cargo is arrested in actions for salvage, it can only be released on bail being given to answer the action in such proportion of the amount of action as the value of the cargo bears to the values of ship and freight. t (323) On filing in the Admiralty regis- try (after twenty-four hours' notice of bail), the bail papers, and also in salvage actions, the affidavit or affidavits of value of the Balved property, file notice for release with a fifteen shillings stamp impressed on the notice, and 1558 PRACTICE. Pt. II. In the High Court. Cap. 20; 899i The release, when obtained, shall be left with a notice in the registry by the solicitor taking out the same, who shall also at the same time pay all costs, charges and expenses attending the care and cus- tody of the property whilst under arrest ; and the property shall thereupon be re- leased. Ord. XXIX. r. 7, No. 328. 4. Possession Fees. 900. Where property has been seized by a commissioned ship-of-war, either public or private, it is de facto under the joint -locks of the King and the captor, although in the legal possession of the marshal, according to the tenor of his writ. In the case of a droit, where the King in his office of Admiralty is the cap- tor, it is under his locks alone. If an order come for the release of that property, either on bail or for restitution, it is to he released to the party claiming, at the ex- pense of the party who releases. The King's ship, the private ship-of-war, and the Admiralty, are equally bound to exe- cute such an order, which is performed in the two former cases by the agent of the captors, and in the case of the Admiralty by their officer, the marshal. The ex- pense of the release is no charge on the cargo, unless the captor's expenses are decreed as a charge on the cargo. The Rendsborg, 6 0. Eob. 174. 901. Before the present practice was established of the marshal arresting the property in all cases, it was held that when the marshal arrested he had the security of the ship for his costs of arrest, includ- ing possession or detention fees, but that when the warrant was executed by the plaintiffs agent the plaintiff was respon- sible for possession fees. The North American, Swabey, 467. 902. Claim of asserted salvors pro- nounced against but without costs. Mo- tion to condemn them in the expenses of possession of the vessel which had re- mained in the custody of the marshal during the cause, the parties not being able to agree the values, rejected. The court intimated that had the owners given in their affidavit of value, and applied for a release, and the vessel had then been detained by the asserted salvors, it would have granted the motion. The India, 1 W. Eob. 410. 902a. The court, having pronounced that it had no jurisdiction in a cause of damage to cargo, ordered, on motion, the marshal's fees of possession to be paid by the plaintiff. The Ironsides, 1 Lushing- ton, 467. See also The Kate, 10 Jur. N.8. 444 ; The Louisa, 9 Jur. N.8. 676. See further as to possession fees. See also tit. Costs, c. 50, p. 417. 5. Obedience to — . 903. The court will issue an attachment against salvors seeking to retain posses- sion of a vessel after the production to them of the release. When a release issues, instantaneous obedience must be paid to it. The Towan, 8 Jur. 222. 6. Caveat Release. 904. As to the entry of caveat release in lieu of issuing warrant in subsequent actions, or to give time for enquiries as to bail, and the consequences of unneces- sarily delaying releases thereby, see Pt. I. p. 1477. hand in at the same time a form of release, forms of which, as required, are obtainable at Boom No. 420. Deliver the release (which is prepared while the clerk waits) at the marshal's office, and instruct him to release the property by filling up and leaving at his office a prcecipe for such purpose. This prcecipe is on a printed form which may be obtained at Eoom No. 420. The prcecipe bears no stamp, but the release must have an impressed stamp of £1 thereon as the marshal's fee for. executing the release. See E. S. O. Fees, 1884, No. 94. (323a) The possession fees due to the marshal for the custody of the property must be paid at the same time by stamps impressed on the release, whether the plain- tiff or defendant files the release. (324) The marshal's charge, payable in stamps, for keeping possession of a ship, with or without cargo, or of cargo without ship, are 5s. a day, including the cost oi a, ship-keeper if required. See S. 0. iees, 1884, No. 98. . (324a) If a release be obtained by consent of the opposing party the consent must be filed. . (325) To obtain a release upon payment ot money into the registry the bank receipt tor the money must be filed. , . (326) For form, of notice or prcemp < t0 * release, see E. S. C. 18S3, App. A., Parti, No. 15. The notice should be duly head* in the cause, and intimate that the sohciwr filing.it applies for release. It must De dated and signed by the practitioner or bs clerk for him. PRACTICE. Pt. II. In the High Court. Cap. 20. 1559 7. Mortgagees Right to — . 905. A mortgagee, although entitled to intervene in a cause in rem of equipment and repairs, is not entitled to claim a re- lease of the vessel upon giving bail con- ditioned to pay the claim of the material men, in the event of its being held to have priority over the mortgage. The Acacia, 4 Asp. 226 ; 41 L.T. 564. (Adm. Ir.) 906. In an action against ship and freight for master's wages, the mortgagee in possession is entitled to a release of the ship upon giving hail, notwithstand- ing the master had become liable in re- spect of bills of exchange, drawn upon the charterers for the ship's use. The Ringdove, Swabey, 311. But see tit. Masters, Nos. 105— 108«, p. 1126. 906a. So also in an action between part owners for an account and a sale of the ship, a mortgagee holding a 'mortgage which a sale of the ship would not satisfy, is entitled, on intervening, to a release of the ship and costs. The Eastern Belle, 33 L. T. 214. 8. In Actions of Possession. See Nos. 872—877, p. 1554. 9. In Actions of Salvage. 907. In an action of salvage, the value of the property under arrest shall be agreed, or an affidavit of value filed, before the property is released, unless the court or a judge shall otherwise order. Ord. XXIX. r. 5, No. 326* 907a. The owners filed an affidavit in the Admiralty Court as to the values of the ship and cargo salved, and the salvors did not impeach those values in that court. The Judicial Committee refused to allow affidavits impeaching the values to be brought in by the salvors on the hearing of the appeal. The Endeavour, 6 Moore, P. C. C. 338 ; 6 Notes of Cases, 56. 908. In a suit for salvage of derelict cargo the court, on motion, allowed a portion of the cargo to be released on a moiety of the value, and a sum to answer costs being paid in. R. M. Mills, No. 243, July 19, 1860. 908a. Salvors are entitled to have the value of ship, freight, and cargo stated. "Where the freight is included in the cargo they have it de facto. The Char- lotte, 5 Notes of Cases, 6. 909. The values are generally conclu- sive, even though the ship was afterwards sold by decree of the court for a larger sum, The Betsey, 5 C. Eob. 296; or for a smaller sum, The Hanna, 37 L. T. N.S. 364 ; 3 Asp. N.S. 503. 909a. The values as shown by the affidavit were erroneously stated, owing to a bond fide mistake, and were on appli- cation allowed to be altered after decree made, and the salvage reduced accord- ingly. The James Armstrong, L. E. 4 A. & E. 380 ; 33 L. T. N.S. 390. 910. Part of the cargo of a ship having been salved, the salvors delivered it into the custody of the receiver of wreck. The owners thereupon, in compliance with the provisions of the M. S. Act, 1854 (c. 104), s. 468, gave bond to the receiver, who released the property, but upon the owners attempting to take possession of it the salvors forcibly prevented them, and brought a salvage action in the Court of Admiralty, in which the property was arrested. Release decreed, with costs against the salvors. The Lady Katherine Barham, 5 L. T. N.S. 693. 911. A vessel and cargo having been arrested in a suit for salvage and bail given, application of the owners to have the ship and cargo released, supported by affidavits that they were daily deterio- rating in value, and opposed by the sal- vors, who prayed a commission of ap- praisement, granted by the court under the circumstances of there being an action for damage to the ship by collision also pending at the suit of the owners, and on the condition of the owners making state- ments of the value in acts of court, and * (327) If .the plaintiffs are dissatisfied with the values, as disclosed in the affidavit filed by the defendants, they may apply for an appraisement of the property by the marshal, but they will be condemned in the costs of the appraisement, unless the appraised value largely exceeds that stated in the affi- davit. See as to such costs tit. Costs, c. 38, s. 13, p. 411. (328) As to appraisement by marshal or receiver of wreck, see c. 44, s. 7, Nos. 2079 et seq. (329) The valuation of a re-captured ship, in order to ascertain the rate of salvage, may be determined by the policy of insurance, if there be no reason to suspect she has been undervalued, and the same rule may be ob- served as to goods where there are policies upon them ; if that, however, should not be the case, the salvors have a right to insist upon proof of the real value, which may be given by the production of the merchant's invoices. 1 Park on Ins. 327 ; Beawes' Lex Merc. 147. 1560 PRACTICE. Pt. II. In the High Court. Cap. 21. undertaking to afford every facility to the salvors in another valuation, should the value be further impeached. The Glas- gow Packet, 8 Jur. 67. 912. The security to he found under the M. S. Act, 1854 (c. 104), s. 468, to satisfy the claim of the owner, master, and crew of a vessel for services rendered, along with another vessel, to a ship in distress, should be one-third of the sixth part of the value of the ship and cargo alleged to be saved. Otis v. Kidston, 24 Sess. Gas. 419. [Scotch.] SI. Proceedings by and against Third Parties. 913. The court or a judge may require any person to bo made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as he may think fit, and may make such order in any particular case as he may think just for placing the defen- dant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question. See Ord. XVI. r. 39, No. 161. 914. If a third party appears pursuant to the third-party notice, the defendant giving the notice may apply to the court or a judge for directions, and the court or j udge, upon the hearing of such applica- tion, may, if satisfied that there is a ques- tion proper to be tried as to the liability of the third party to make the contribu- tion or indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the defen- dant giving the notice, to be tried in such manner, at or after the trial of the action, as the court or judge may direct ; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party. Ibid. r. 52, No. 174. 915. The court or a judge upon the hear- ing of the application mentioned in Rule 52, No. 914, supra, may, if it shall appear desir- able to do so, give the third party liberty to defend the action, upon such terms as may be just, or to appear at the trial and take, such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered, or amendments to be made, and give such directions as. to the court or judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the third party shall be bound or made liable by the judgment in the action. Ibid. r. 53, No. 175. 916. The esurt or a judge may decide all questions of costs, as between a third party and the other parties to the action, and may order any one or more to pay the costs of any other,' or others, or give such directions as to costs as the justice of the case may require. Ibid. r. 54, No. 176. 917. "Where a, defendant claims to he entitled to contribution or indemnity against any other defendant to the action, a notice may be issued and the same procedure shall be adopted, for the deter- mination of such questions between the defendants, as would be issued and taken against such other defendant, if such last-mentioned defendant were a third party ; but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the action. Ibid. r. 55, No. 177. 918. In an action of collision brought by a vessel at anchor against a vessel being towed the defendants served a third party notice on the owners of the tug claiming indemnity. On an application for direc- tions under Ord. XVI. r. 21 (now r. 52, No. 174), the plaintiffs objected to the introduction of the third parties, and on its appearing probable that questions would arise between the defendants and the tug different from those between the plaintiffs and the defendants, and that the plaintiffs might be embarrassed, the court dismissed the third parties. The Bianca, 8 P. D. 91 ; 52 L. J. P. D. 56; 5 Asp. 60. 919. A collision took place between the vessels S. and 0., the 0. being at the .time in tow of the steam-tug D. The owners of the S. commenced an action of damage against the O, alleging that the collision was caused by the negligence ot the 0. and her tug, or one of them. The owners of the 0. obtained leave to issue a notice to D. claiming indemnity against her, and order made that the owners ot the tug be at liberty to appear and defend and abide the decision of the court. At the hearing the owners of the D. appeared, but the owners of the 0. did not. 1M court held, that the C. was alone to blame for the collision, and that her owners were not entitled to indemnity over against tfte owners of the D. The Cartsburn, 5 if- u- 35 ; 49 L. J. P. D. & A. 14 ; 28 W. E. 878. On appeal, held, that so much ot tne judgment of the court below as adjudged PRACTICE. Pt. II. In the High Court. Cap. 22. 1561 twelve days has expired, the order has no force against him, Ibid. r. 7, No. 184. See also c. 6, s. 6, p. 1500. that the owners of the 0. were not en- titled to indemnity over against the owners of the D. must be reversed. Ibid. 5 P. D. 59. 919a. Where a defendant claims to be entitled to indemnity over against a per- son not a party to the action, leave will not be given under Ord. XVI. r. 48, to serve a third party notice unless the claim is on a contract of indemnity. Speller v. The Bristol Steam Navigation Co., 5 Asp. 228. 920. For form of order to discharge or vary an application by third party, see E. 8. C. 1883, Appendix K, No. 14. 921. For provisions that, in case of the marriage, death, bankruptcy, or devolu- tion of estate by operation of law of any party to a cause or matter, the court or a judge may order the husband, personal representative, trustee, or other successor in interest of suchparty to be made a party, see Ord. XVII. r. 2, No. 179. 922. And that after any similar or other event occurring after the commencement of any cause or matter and causing a change or transmission of interest or liability, an order may be obtained for making a new party, or making a present party a party in another capacity, and for continuing the proceedings against such other parties also, Ibid. r. 4, No. 181 ; and as to the service of such an order, Ibid. v. 5, No. 182. 923. For provisions that where any person under no disability, or none but coverture, or being under any disability other than coverture, but having a guar- dian ad litem in the cause or matter, is served with such order, he may apply to the court or a judge to discharge or vary it at any time within twelve days from the service thereof, Ibid. r. 6, No. 183. 924. And that whero any such person being under any disability other than coverture, and not having a guardian ad litem in the cause or matter, is served with any such order, he may apply to the court or a judge to discharge or vary the order at any time within twelve days from the appointment of a guardian ad litem for such party, and that until such period of 22. Proceedings by Default. 1 . Generally.* 925. Where any defendant fails to ap- pear to a writ of summons, and the plaintiff is desirous of proceeding upon default of appearance under any of the following rules of this order, or under Ord. XV. r. 1, he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service, as the case may be. Ord. XIII. r. 2, No. 102. 926. For provisions, where the writ of summons is indorsed for a liquidated de- mand, and the defendant fails, or all the defendants, if more than one, fail to ap- pear, that the plaintiff may enter final judgment for any sum not exceeding the sum indorsed on the writ, with interest at the rate specified (if any), or (if no rate . be specified) at the rate of five per cent, per annum, to the date of the j udgment, and costs, Ibid. r. 3, No. 103. 927. For provisions that where the writ of summons is indorsed for a liquidated demand, and there are several defendants, some of whom do and others do not ap- pear to the writ, the plaintiff may enter final judgment against such as have not appeared, and issue execution against them without prejudice to his right to proceed against such as have appeared, Ibid. r. 4, No. 104. 928. So, also, where the writ is indorsed with a claim for detention of goods and pecuniary damages, or either of them, and as to a writ of inquiry to assess value or damages or the dispensing therewith, Ibid. rr. 5 and 6, Nos. 105—107. 929. Where judgment is entered pur- suant to any of the preceding rules of this order, it shall be lawful for the court or a judge to set aside or vary such judgment upon such terms as may be just. Ibid. r. 10, No. 110. 930. Where a defendant fails to appear * (330) As to proceedings in aefault of pleading in the Common Law Divisions, see Archbold's Practice (14th ed. by Chitty), vol. 1, p. 326. (331) As to pleadings and documents filed in default, see Central Office Practice Eules, 1880—1882, in Wilson's Jud. Acts and Eules, p. 4th ed. p. 849; but such documents in de- fault actions in Admiralty are filed in the registry of the Admiralty branch. (331a) As to costs in the Queen's Bench in cases of judgment by default, see Order of the Masters of 31st January, 1884. 5 H 1562 PRACTICE. Pt. II. In the High Court. Cap. 22. to a writ of summons issued out of a district registry, and the defendant had the option of entering an appearance either in the district registry or in the Central Office, judgment for want of ap- pearance shall not be entered by the plaintiff until after such time as a letter posted in London on the previous even- ing, in due time for delivery to the defen- dant on the following morning, ought, in due course of „post, to have reached him. Ord. XIII. r. 11, No. 111. 931. In all actions not by the rules of this order otherwise specially provided for, in case the party served with the writ, or in Admiralty actions in rem the defendant, does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, and, if the writ is not specially indorsed under Ord. III. r. 6, of a state- ment of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Ord. XV. Ibid. r. 12, No. 112. 932. When the proceedings are by de- fault the court will view a doubtful point of jurisdiction less scrutinizingly than when the point is raised by a defendant. The Ajina Van Linge, Swabey, 515. 2. Old Practice* 3. Against Infants or Persons of Unsound Mind. 933. For provisions where no appear- ance has been entered to a writ of sum- mons for a defendant who is an infant or a person of unsound mind not so found by inquisition, for the plaintiff to apply for an order that a guardian be assigned to appear and defend the action, the appli- cation to be made after summons served, and six clear days' notice after the expi- ration of the time allowed for appearance. see Ord. XIII. r. 1, No. 101. 4. For want of Statement of Claim or Defence.^ 934. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the court or a judge to dismiss the action with costs, for want of prosecution ; and on the hearing of such application the court or judge may, if no statement of claim shall have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as the court or judge shall think just. Ord. XXVII. r. 1, No. 294. 935. If the plaintiff's claim be only for a debt or liquidated demand, and the defendant does not, within the time al- lowed for that purpose, deliver a defence, the plaintiff may, at the expiration of such time, enter final judgment for the amount claimed, with costs. Ibid. r. 2, No. 295. 936. And where there are several de- fendants, and one so mates default, the plaintiff may enter final judgment, and issue execution against him without pre- judice to his right to proceed with his action against the other defendants. Ibid. r. 3, No. 296. 937. For provisions, where the plain- tiff's claim is for detention of goods and pecuniary damages, or either, and the defendant or defendants make default as mentioned in Eule 2, that the plaintiff may enter an interlocutory judgment against him or them, and that a writ of inquiry shall issue to assess the value or damages, or both, as the case may be, or for otherwise ascertaining such value or damages, Ibid. r. 4, No. 297. * (332) The old practice was to arrest the person and take bail for his appearing and answering in tbe suit, and pay what might be adjudged and the expenses. When this practice fell into disuse' proceedings in rem were so generally adopted that the reports scarcely contain any mention of proceedings in personam by default. (333) It seems, however, that when a monition issued against a party to appear, and he did not do so, he might be attached for contempt of court, or that proceedings might be prosecuted in his absence. See The North American, Swabey, 468; The Heart of Oak, 29 L. J. Adm. 78. Either course of procedure might be adopted in the Ecclesias- tical Courts, whose practice, like that of the Admiralty, was based on the civil law. (334) By the American practice, if the de- fendant makes default in appearance on the court-day on which the process against him is returnable, or on any other day assigned' by the court, the pleadings are adjudged to be taken pro confesso against him, and tne cause is proceeded with ex parte, bee ' Conkkng'SAdm. Prac. (2nd ed.), 178. [AME- KIOAN.] " . (335) As to the old practice in rem, see notes 340—360, infra. ,, • t (336) As to the proceedings under W order, see Wilson's Jud. Acts and itam 4th ed. pp. 287—292. PRACTICE. Pt. II. In the High Court. Cap. 22. 1563 938. For provisions that where in any- such action as in Rule 4 mentioned there are several defendants, if one or more so make default, the plaintiff may enter an interlocutory judgment against those so making default, and proceed with his action against the others; and for the value and amount of damages against the defendant making default being as- sessed at the same time with the trial of the action or issues therein against the other defendants, unless the court or a judge otherwise directs, Ibid. r. 5, No. 298. 939. For provisions that, where the plaintiff's claim is for a debt or liqui- dated demand, and also for detention of goods and pecuniary damages, or such damages only, and any defendant makes default as mentioned in Eule 2, the plaintiff may enter final judgment for the debt or liquidated demand, and also enter interlocutory judgment for the value of the goods and damages, or the da- mages only, and proceed as mentioned in Eules 4 and 5, Ibid. r. 6, No. 299. 940. For provisions that where the plaintiff's claim is for a debt or liqui- dated demand, the detention of goods and pecuniary damages, or for any of them, and the defendant delivers a de- fence, which purports to offer an answer to part only of the plaintiff's cause of action, the plaintiff may by leave enter judgment, final or interlocutory, as the case may be, for the part unanswered ; if the unanswered part consists of a sepa- rate cause of action, or is severable from the rest : but where there is a counter- claim, execution on such judgment shall not issue without leave, Ibid. r. 9, No. 302. 941. In all other actions than those in the preceding rules of this order men- tioned, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judg- ment, and such judgment shall be given as upon the statement of claim the court or a judge shall consider the plaintiff to be entitled to. Ibid. r. 11, No. 304. 942. For provisions that where in any such action as mentioned in Eule 11, supra, there are several defendants, and one so makes default, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or set it down against him when it is entered for trial, or set it down on motion for judgment against the other defendants, Ibid. r. 12, No. 305. 5. For want of Reply or subsequent Pleading. 943. If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expi- ration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue. Ibid. r. 13, No. 306. 6. For want of Delivery of Pleading in Issues. 944. In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the court or a judge for such judg- ment, if any, as upon the pleadings he may appear to be entitled to ; and the court or judge may order judgment to be entered accordingly, . or may make such other order as may be necessary to do complete justice between the parties. Ibid. r. 14, No. 307. 7. Setting aside of Judgment. 945. Any judgment by default, whether under this order or under any other of these rules, may be set aside by the court or a judge upon such terms as to costs or otherwise as such court may think fit. Ibid. r. 15, No. 308. 946. See as to this rule Athoood v. Chichester, 3 Q. B. D. 722, and Watt v. Earnett, 3 Q. B. D. 363. 8. In rem. (a) Generally. 947. In all actions not by the rules of this order otherwise specially provided for, in case the party served with the writ, or in Admiralty actions in rem the defendant, does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, and, if the writ is not specially indorsed under Ord. III. r. 6, of a state- ment of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Ord. XV. Ord. XIII. r. 12, No. 112. 5 h 2 1564 PRACTICE. Pt. II. In the High Court. Cap. 22. . 948. A plaintiff in an undefended bottomry action in rem must, before he can obtain judgment by default, file an affidavit of service in the registry as pro- vided by Ord. XIII. r. 2, No. 102, and annex thereto the original writ. The Eppos, 5 Asp. 180. 948a. If a defendant in an action in rem does not appear the proper course is to verify the allegations in the statement of claim by affidavit, and set the action down on motion for judgment. The Spero Expecto, 5 Asp. 197; 49 L. T. 749; 32 W. E. 524. 949. The time runs from the service of the writ of summons, and not of the warrant of arrest. The Marca, 4 Asp. 57. 949a. In an action in rem a plaintiff before moving for judgment upon default of appearance must wait the ten days allowed for delivery of defence. See Ord. XIIL r. 12, No. 112 ; and Ord. XXI. r. 6, No. 239. The Avenir, 9 P. D. 84 ; 53 L. J. P. D. 63 ; 5 Asp. 218 ; 32 W. E. 755. (b) After Caveat Warrant and Non- Appearance. See Pt. I. p. 1477. (c) Pleadings and Proofs.* 950. In default actions in rem evidence may be given by" affidavit. Ord. XXXVII. r. 2, No. 484. (d) Notice of Trial. 951. The rule as to notice of trial, and the printing of evidence when taken by affidavit, does not apply to actions in rem by default in the Admiralty Division, un- less otherwise ordered. Ord. XXXVIII. r. 30, No. 550. 951a. In default actions in rem, before the plaintiff can obtain judgment; under Ord. XIH. r. 12, No. 112, notice of trial must have been filed in the registry. The Avenir, supra. (e) Printing. See No. 951, supra. (f) Hearing.] 952. In Admiralty actions in rem, by default, if the judge is satisfied the plain- tiff's claim is well founded, he may pro- nounce for it with or without a reference, and order the property to be appraised and sold, with or without previous notice, and the proceeds paid into court, or otherwise as he thinks just. See Ord. XIII. r. 13, No. 113. See also No. 949, supra. (g) Old Practice. I * (337) In proceedings in rem by default the plaintiff's solicitor files a statement of claim in manuscript, and affidavits also in manu- script, in verification of Ms case, and moves the court by counsel for judgment, and, if need be, for an order of appraisement and sale of the property. • f (338) By the modern practice, in actions by default the registrar takes down the judg- ment as made without prejudice to other actions in which other plaintiffs may be en- titled to precedence, by reason of the nature of their claims, so that it is no longer neces- sary for plaintiffs in other actions to appear and apply that such rights may be reserved, as the plaintiff gains no advantage in this respect as prior petens. (338a) In proceedings in rem by default the order for a commission of appraisement and sale is made at the same time that judg- ment is given in favour of the claim. By the old practice the decree of sale was made before the judgment, but this rather incon- gruous course is now transposed. % (339) By the old practice when the pro- ceedings were in rem, and after service and return of the warrant, under which all per- sons in general, interested in the property proceeded against, were cited. to appear and show cause, if no person appeared, the further proceedings taken to enforce the claim were styled as by default, or inpcenam amtumacia, i. e. in pain of the contumacy of the parties interested in the property arrested, and cited by the service of warrant on the property, and making default in doing so. (340) On the court day on-which the war- rant was made specially returnable, or on the first regular court day after the period al- lowed for the service had expired, the plain- tiff's proctor returned it into court. The parties cited were then three times publicly called in court, and if no appearance were given by or for them, an order was obtained recording a default against them. (340a) No step could be taken in proceed- ings in pcenam except upon one of the regu- larly-appointed sittings of the court fortne despatch of general business. (341) Four defaults in all upon four sepa' rate court days were obtained. , . (341a) These four defaults were required in order to give parties interested in the ra, and who might be resident at a distance, time to appear. ,, A (342) On the same day that the fourth oe fault was obtained, it was competent towe plaintiff to move the court, upon the proo» PEACTICE. Pt. II. In the High Court. Cap. 22. 1565 (h) Sale. See c. 44, Nos. 2053 et seq. (i) In District Registries. See c. 23, p. 1568. filed by him, to sign a primum decretum, or first decree. The effect of the first decree was to put the plaintiff in legal possession of the res, as security for the discharge of his claim, subject to other lawful demands not brought forward, but which might be entitled to take precedence of it, and also subject to the owner's right to redeem it by appearing within a year, and paying the claim and costs. (343) The owner of the res might appear at any time in the course of the proceedings by default, but before doing so his proctor was required to pay or undertake for the pay- ment of the costs of the proceedings by de- fault incurred through his previous non- appearance, and styled contumacy fees. See 2 Browne's Civil & Adm. Law, 405 ; Gierke's Prax. Cur. Adm. tit. 37, 38, and the refer- ence to such fees in bonds to answer latent demands. The Saracen, 6 Moore, P. 0. 0. 66, n. (341) The first decree was prepared by the plaintiff's proctor, settled by the registrar, engrossod on parchment, signed by one counsel and by the judge, and filed in the registry. (345) Failing the owner's appearance, after the expiration of a year and a day, it would seem that the nude possession conferred by the first decree operated, in the Admiralty, to give the claimant a full possessory right and enjoyment over the res without any second decree, though, by the civil law, a second decree was necessary for that pur- pose. (See 2 Browne's Civil and Adm. Law, pp. 352, 403.) An application, however, could, after the year and a day, be made to the court for a sale, upon which the res would be sold, the amount due paid, and the balance retained in the registry until claimed. (346) In default of any claim for such balance it would become a droit of Admiralty, and be payable accordingly. (347) As, however, it was generally incon- venient to the claimant to wait the expira- tion of the year and a day ; and as the res was during such time lying idle and unused, and therefore deteriorating in condition, and as, according to the adage quoted by Lord Tenterden, " Ships were built to plough the seas, and not to lie by the wall," the follow- ing course of proceeding was usually adopted, and was of some antiquity : — The court de- creed, on the application of the plaintiff, a monition, called a "perishable monition," against all persons having any interest in the property to show cause why it should not be sold, and also a commission for the appraise- ment of the property. (348) The perishable monition was required to be served by the marshal on the Boyal Exchange, London, as a place where "mer- chants most do congregate." It was served there by posting it up on the Exchange, and leaving a copy affixed there. (349) After the service and return of this monition, and the return of the commission of appraisement, upon proof being furnished to the court by affidavit, that the res was de- teriorating in value by remaining unused, a commission for the sale thereof was decreed. The commission was executed by the proctor, or his agent at the outports, who acted as commissioner, and engaged an auctioneer and sold the property. The proceeds of sale, less the expenses of sale, were paid into court, and an order of the judge obtained for pay- ment of the amount found due, which was then paid to the plaintiff out of the proceeds of sale on his giving bail to return all or such part of the sum as might be necessary to answer any lawful demands which might, before the expiration of the year before mentioned, be brought forward, and found entitled to supersede his claim. This was called "Bail to answer latent demands." (350) For the cases illustrating the old practice, see The Exeter, 1 C. Bob. 173 ; The Friends, Stuart's Vice- Adm. Bep. 73. [Lower Canada.] The Conception, 2 Hagg. 175 ; The Sylvan, ibid. 155. Clerke's Prax. Adm. 72, 81 et seq. ; 2 Browne's Civil and Adm. Law (2nd ed.), 399; Coote's Adm. Prac. 102 —112. The Evangeline, 2 L. T..N.S. 138 ; 5 Jut. N.S. 108. [Irish.] Bead, v. Owen, 9 Port. 180; Dunlap's Adm. Prac. (2nd ed.) 92. [American.] (351) This practice was superseded by that established under the Bules and Orders of Nov. 1859, now annulled by E. S. C. 1883, App. O. (352) Which established the following prac- tice : After twelve days from the filing of the warrant, if an appearance had not been entered, the proctor might, on filing in the registry a praecipe, take out a notice of sale, to be advertised by him in two or more public journals, appointed by the judge. (353) These journals were The Times, The Shipping and Mercantile Gazette, and a local newspaper having the largest circulation at the place where the property was situate. (354) After six days from the advertise- ment of the notice of sale in the journals, if an appearance had not been entered, the proctor filed in the registry an affidavit to the effect that the notices had been duly ad- vertised, with copies of the journals annexed, and such proofs as might be necessary to establish the claim, and a notice of motion to have the property sold. (355) If, when the cause came before the judge, he was satisfied that the claim was well founded, he ordered the property to be appraised and sold, and the proceeds paid into the registry. (356) If there were two or more causes by 1566 PRACTICE. Pt. II. In the High Court. Cap. 23. (j) In Actions of Bottomry. 953. Bottomry on ship, freight, and . cargo. The property was arrested before the hond was due, in order to secure cargo, an affidavit having been filed that there was reasonable ground for appre- hending the cargo would shortly be dis- charged. In proceedings by default, motion for first decree directed to stand over, on the ground that, though the property was arrested before bond due, the time for taking, proceedings should be calculated from the time the bond became due. San Jose Primeiro (No. 22), 15th March, 1860. But see Pt. III. Noa. 2133—2137, p. 1677. (k) In Actions of Mortgage.* (1) In Actions of Co-oioners. (aa) Order of Sale. 954. Motion on behalf of the owner of 16 sixty-fourth shares for decree of sale of ship under sect. 8 of Admiralty Court Act, 1861, granted, notice of appli- cation having been given to the owners of the other shares, and no appearance having been given for them. The Albion, No. 910, March 27, 1862. But see tit. Owners, Pt. VIII. p. 1424. (m) In Actions of Possession.^ 955; -In causes of possession it is to be presumed that all those shareholders who do not apply are satisfied that the possession of the vessel should not be altered. The Valiant, 1 W. Eob. 67. 956. The party in possession not hav- ing appeared,' and the vessel having been sold by the court, the party was held to have acquiesced in being so dispossessed. The Neptune, 3 Hagg. 132. 957. In proceedings by default, posses- sion of a ship, time having been allowed for an appearance by the defendant, de- creed to the plaintiffs, on affidavits. The Lagan, otherwise Mimax, 3 Hagg. 418. 958. In a cause of possession, motion to decree possession to the executor of a moiety owner, refused ; but an order made against the parties having the remaining interest, to appear arid show cause. The Egyptienne, 1 Hagg. 346, n. 9. Costs. See tit. Costs, p. 350. 23. Proceedings in District Registries. 1. Generally. % 959. For provisions for the establish- ment in the country of district registries of the Supreme Court, the seals of dis- trict registries, and the powers of district registrars, see the Supreme Court of Judicature Act, 1873 (c. 66), ss. 60—62. 960. Por the list of district registries, including Liverpool, Manchester, Preston, default pending against the same property, it was not necessary to take out a notice of sale in more than one of the causes ; but if the proctor in the first cause did not, within eighteen days from the filing of the warrant in that cause, take out and advertise the notice of sale, the proctor in the second or any subsequent cause might take out and advertise the notice of sale, if he had filed in the registry a citation in rem in such second or subsequent cause. (357) Within six days from the time when the proceeds had been paid into the registry the proctor in each cause, if he had not previously done so, filed his proofs in the registry, and had the cause placed on the list for hearing. (358) Por the cases illustrating this prac* tice, see The Union (No. 36), 15th March, ■1860 ; Pierre et Marie (No. 57), March 15, 1860; The Bessy, 4 "W. E. 92. (359) Prior to B. S. 0. 1883, the Eules and Orders of 1859, in regard to proceedings by default, or where the defendant failed to de- liver a defence within the proper time, were in force in Admiralty actions in rem. The Polymede, 1 P. D. 121 ; 3 Asp. N.8. 124; 34 L. T. 367 ; The Sfactoria, 2 P. D. 3 ; 3 Asp. N.S. 271; 35 L. T. 431; 25 W. E. 62; The Maria, L. E. W. N. 1878, p. 236 ; 4 Asp, 57. But the Eules and Orders of 1859 are now annulled, see Eu S. C. 1883, App. O. (360) Certain Eules of 1871 of the then judge of the Admiralty Court (Sir E. Philli- more), as to printing in default actions in rem, were also in force down to the E. S. 0. 1883, but are also annulled by App. 0. of those rules. Ibid. * (361) A mortgagee or owner claiming the balance of proceeds of sale must prove his title by affidavit, with oflice cony annexed of the Official Eecord of Transactions at the Custom House subsequent to registry. t (362) The practice in actions of posses- sion by default under the Eules and Orders of 1859, now annulled, was as stated in notes 352 — 354, supra. J (363) As to proceedings in district'regis- tries, see Archbold's Practice, 14th ed. vol. 2, p. 1421, and Ohitty's Forms, 12th ed. p. 734. PRACTICE. Pt. II. In the High Court. Cap. 23. 1567 and Durham, see Order in Council of 12th August, 1875, in Wilson's Judica- ture Acts and Eules (4th ed.), pp. 813 — 815. 961. As to the district for each such district registry, Ibid. 962. Subject to rules of court, writs of summons for the commencement of actions in the High Court of Justice shall be is- sued by the district registrars when there- unto required ; and unless any order to the contrary shall be made by the High Court of Justice, or by any judge thereof, all such further proceedings, including proceedings for the arrest or detention of a ship, her tackle, apparel, furniture, cargo, or freight, as may and ought to be taken by the respective parties to such action in the High Court down to and in- cluding entry for trial, or (if the plaintiff is entitled to sign final judgment or to obtain an order for an account by reason of the non-appearance of the defendant) down to and including final judgment, or an order for an account, may be taken before a district registrar, and recorded in the district registry, in such manner as may be prescribed by rules of court ; and all such other proceedings in any such action as may be prescribed by rules of court shall be taken, and, if necessary, may be recorded in the same district re- gistry. See the Judicature Act, 1873 (c. 66), s. 64. 963. The court or judge of the division to which any cause or matter is assigned, may order that any books or documents may be produced, or any accounts taken or inquiries made, in the office of or by any district registrar, who shall then pro- ceed to carry all such directions into effect in the manner prescribed ; and where any such accounts or inquiries have been directed to be taken or made by any dis- trict registrar, his report in writing as to the result thereof may be acted upon by the court. Ibid. s. 66. 964. Where a cause or matter is pro- ceeding in a district registry, all proceed- ings, except where by these rules it is otherwise provided, or the court or a judge shall otherwise order, shall be taken in the district registry, down to and includ- ing the entry of final judgment ; and every final judgment and every order for an account, by reason of the default of the defendant, or by consent, shall be entered in the district registry in the proper book, in the same manner as a like judgment or order in an action proceeding in Lon- don would be entered in the Central Office. Ord. XXXV. r. 1, No. 401. 965. Where a cause or matter is pro- ceeding in a district registry, all proceed- ings relating to the following matters, namely — (a) leave to enter judgments under Ord. XVI. rr. 50 and 51 ; (b) leave to issue or renew writs of execution ; (c) examination of judgment debtors for garnishee purposes, or under Ord. XLH. r. 32; (d) garnishee orders; (e) charging orders nisi ; shall, unless the court or a judge shall otherwise order, be taken in the district registry. Ibid. r. 5, No. 405. 966. No affidavit or record of the court shall be taken out of a district registry (except upon removal of the proceedings to London) without the order of a judge or of the district registrar, and no sub- poena for the production of any such document shall be issued. Ibid. r. 22, No. 422. 967. No order made on a petition shall be passed until the original petition shall have been filed in the Central Office, or where the proceedings are taken in a dis- trict registry, in the district registry, and a note thereof made on the judgment or order by the proper officer. See Ord. LXI. r. 15, No. 908. 967a. As to the district registry of the Admiralty Division established at Liverpool,- see tit. Jurisdiction, Pt. I. p. 674. 2. District Registrars. See Pt. I. p. 1471. 3. Offices. 968. The offices of each district regis- trar of the High Court of Justice shall be open on every day and hour in the year on which the offices of the registrar of the county court of the place in which the district registry is situate are required to be kept open. Ord. LXIII. r. 7, No. 951. 969. The office of the district registry at Manchester shall not be open in any year on the five days next following Whit Monday. Ibid. r. 10, No. 954. 4. Forms. 970. The forms contained in the appen- dices shall, as far as they are applicable, be used in or for the purposes of district registries, with such variations as cir- cumstances may require. Ord. XXXV. r. 24, No. 424. 971. Por forms of writs of summons for issue from a district registry, see 15G8 PRACTICE. Pt. II. In the High Court. Cap. 23. E. S. C. 1883, App. A., Pt. 1, Nos. 3, 4, 7,8. 972. For the like in Admiralty actions in rem, Ibid. No. 12. 973. For form of notice of writ from district registry in lieu of service to be given out of the jurisdiction, Ibid. No. 10. 5. Warrants and Caveat Warrants. 974. Where an action is proceeding in a district registry, the district registrar (unless required to act under Rule 18 of this Order) shall, before issuing a warrant for the arrest of the property, ascertain by telegraph, or otherwise, from the principal registry, whether or not any caveat has been entered against the issue of a warrant for the arrest thereof. Ord. XXIX. r. 13, No. 334. 6. Amendment of Writs. 975. Writs of summons issued out of a district registry cannot be amended by order or fiat of a master, unless the action has been removed to London by appear- ance or otherwise. No writ issued out of a district registry can be amended in the Central Office, unless the duplicate filed in the district registry has been pre- viously received in the Central Office. If it becomes necessary to send to London (for amendment or otherwise) the copy writ filed in the district registry, autho- rity may be given to ■ send the copy writ to the Central Office by sealing a dupli- cate of the prtscipe for appearance, which shall be transmitted to the district regis- trar by the solicitors concerned. See 0. 0. Prac. Eules, 1880—1882, in Wilson's Jud. Acts and Eules, 4th ed. p. 848. 7. Appearance. See c. 13, s. 3, p. 1534. 8. As dependent on Appearance. 976. If a sole defendant appears, or all the. defendants appear in the district registry, or if all the defendants who appear appear in the district registry and the others mate default in appearance, then, subject to the power of removal in Ord. XXXV. rr. 13 to 16 provided, the action shall proceed in the district regis- try. Ord. XII. r. 6, No. 76. 9. Removal to London. 977. Whenever a defendant appears in London to a writ issued out of a dis- trict registry, or any proceedings are re- moved from the district registry to London, by notice under Eule 14 of this Order, or by order of the court or a judge, the district registrar shall transmit to the Central Office all original documents (if any) filed in the district registry, and a copy of all entries of the proceedings in the books of the district registry. Ord. XXXV. r. 20, No. 420. See also c. 15, s. 3, p. 1537. 10. Removal from London. 978. If the defendant appears, or any of the defendants appear, in London the action shall proceed in London ; provided that if the court or a judge shall be satis- fied that the defendant appearing in Lon- don is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such court or judge may order, that the action may proceed in the district registry, notwithstanding the appearance in London. Ord. XII. r. 7, No. 77. See also c. 15, s. 2, p. 1537. 11. By Default* 12. Application to District Registrar. 979. Every application to a district registrar shall be made in the same manner in which applications at chambers are directed to be made by these rules. Ord. XXXV. r. 7, No. 407. 13. Appeal or Reference from District Registrar to Judge. 980. If any matter appears to the dis- trict registrar proper for the decision of a judge, the registrar may refer the same to a judge, and the judge may either dispose of the matter or refer the same back to the registrar with such directions as he may think fit. Ibid. r. 8, No. 408. 981. Any person affected by any order, finding, or decision of a district registrar may appeal to a judge. Such appeal may be made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the district regis- trar had jurisdiction only by consent Such appeal shall be by way of indorse- * (304) Proceedings by default, whether in rem or in personam., may be taken in the district registry like similar proceedings an . London. PRACTICE. Pt. II. In the High Court. Cap. 24. 1569 ment on the summons by the registrar at the request of any party, or by notice in writing to attend before the judge without a fresh summons within six days after the party complaining has notice of the order, finding, or decision complained of, or such further time as may be allowed by a judge or the registrar. Ibid. r. 9, No. 409. 982. An appeal from a district registrar shall be no stay of proceedings unless so ordered by a judge or the registrar. Ibid. r. 10, No. 410. 14. Filing of Documents. 983. "Where a cause or matter is pro- ceeding in a district registry all pleadings and other documents required to be filed shall be filed in the district registry. Ibid. r. 19, No. 419. 15, Entries of Judgments. 984. Where the writ of summons issues out of a district registry, and the plaintiff is entitled to enter interlocutory judgment under any of the Eules of Ord. XIII., or where the cause or matter is proceeding in the district registry and the plaintiff is entitled to enter interlocutory judgment under any of the rules of Ord. XXVII., in either case such interlocutory judgment, and when damages shall have been as- sessed final judgment, shall be entered in the district registry, unless the court or a judge shall otherwise order. Ibid. r. 2, No. 402. 984a. "Where a cause or matter is pro- ceeding in a district registry, and the judgment or any other order therein is directed to be entered in the Central Office, the same shall be so entered, and an office copy of every such judgment or order shall be transmitted to the district registry to be filed with the proceedings in the action. Ibid. r. 3, No. 403. 16. References. See c. 40, Nos. 1954 et seq. 17. Writs of Execution. 985. "Where a cause or matter is pro- ceeding in a district registry, all writs of execution for enforcing any judgment or order therein, and all summonses under the Debtors Act, 1869, shall issue from the district registry, unless the court or a judge shall otherwise direct. Ibid. r. 4, No. 404. 18. Taxation of Costs. See tit. Costs, c. 27, s. 6, p. 382. 19. Funds in Court. 986. The Supreme Court Funds Eules, 1884, do not apply in district registries to funds in court. See E. S. C. F. E. 1884, No. 111. " 20. Fees and Stamps. 987. As to the fees in the Liverpool and Manchester District Eegistries, in- cluding those on sales in the Admiralty Division, being taken in stamps, see Order of 24th October, 1877, in "Wilson's Jud. Acts and Eules, 4th ed. p. 788. 24. Interlocutory Proceedings. 1. Generally. 988. As to caveat warrants and caveat releases, see Pt. I. c. 6, p. 1477, and as to proceedings subsequent thereto, see Pt. II. c. 11, p. 1518; as to precedence of ac- tions, see c. 5, p. 1497; as to third parties, see c. 6, s. 6, p. 1500; as to counter-claims, see c. 4, p. 1492 ; as to paupers, see c. 7, p. 1507; as to disclosure by plaintiff's solicitors, see c. 10, p. 1515 ; as to war- rants, see c. 11, p. 1515 ; as to service of documents, see c. 12, p. 1524; as to ap- pearance, see c. 13, p. 1532; as to transfer of actions, see c. 15, p. 1536; as to consoli- dation of actions, see c. 17, p. 1543; as to proceedings in such actions, see c. 18, p. 1544 ; as to bail, see c. 19, p. 1545; as to release, see c. 20, p. 1556 ; as to proceed- ings by and against third parties, see c. 2 1 , p. 1560 ; as to proceedings by default, 6ee c. 22, p. 1561 ; as to proceedings in district registry, see c. 23, p. 1566 ; as to abatement and revival, see c. 30, p. 1580 ; as to estoppel, see c. 31, p. 1581 ; as to tenders, see c. 32, p. 1586; as to pre- liminary acts, see c. 33, p. 1589 ; as to pleadings, see c. 34, p. 1590; as to proofs, see c. 35, p. 1616; as to view, see tit. Evidence, p. 424 ; as to printing, see c. 37, p. 1459 ; as to references, see c. 40, p. 1460; as to arbitrations, see c. 42, ibid. ; as to interpleaders, see c. 43, s. 32, p. 1461. 2. Amendment. 989. The court or a judge may at any time, and on such terms as to costs or otherwise as the court or judge may think just, amend any defect or error in any proceedings, and all necessary amend- ments shall be made for the purpose of determining the real question or issue raised by or de pendi ng on the proceed- ings. Ord. XXVm. r. 12, No. 320. 1570 PRACTICE. Pt. II. In the High Court. Cap. 24. 990. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or a judge on motion or summons without an ap- peal. Ord. XXVIII. r. 11, No. 319. 990«. The costs of and occasioned by any amendment made pursuant to Rules 2 and 3 of this Order shall be borne by the party mating the same, unless the court or a judge shall otherwise order. Ibid. r. 13, No. '321. 991. The plaintiff in a cause of damage moved for leave to increase the amount in which the action was entered. The defendant opposed the motion, and the court rejected it in that form, but inti- mated that if the damages should be proved to exceed the amount of the ac- tion the court would, under the powers conferred on it by the 15th section of the Admiralty Court Act, 1861 (c. 10), issue an order against the owners to pay the surplus. The Zephyr, 14 L. T. N.S. 351. See also c. 4/s. 7, p. 1492. 992. As to amendment of action, Ibid. s. 9, p. 1494. 992a. As to amendment of writ of sum- mons, see c. 8, s. 7, p. 1512. 993. As to amendment of pleadings or indorsement, see c. 34, s. 16, p. 1603. 3. Particulars of Demand* 994. The party at whose instance par- ticulars have been delivered under a judge's order shall, unless the order ■ otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the return of the summons. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time. Ord. XIX. r. 8, No. 204. 994a. Further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, may, in all cases, be ordered upon such terms as to costs and otherwise as may be just. Ibid. r. 7, No. 203. 9945. The rule as to giving particulars is the same in the Admiralty Division, as in the Queen's Bench Division, and there- fore, in an action of damage to cargo on board the defendant's vessel by reason of alleged defects in the vessel and negli- gence of the crew, the Court of Appeal ordered the plaintiff to give particulars of the defects and negligence alleged. The Rory, 7 P. D. C. A. 117 ; 51 L. J. P. D. 22; Ibid. C. A. 73; 4 Asp. 535; overruling. The Freedom, L. P. 2 A. & E. 346 ; 38 L. J. Adm. 25 ; 3 Asp. 219, 261. 995. In an action for damage to cargo the defendants pleaded that the damage was occasioned by accidents and perils by the bill of lading excepted, and by causes for which the defendants by the terms thereof were not responsible. Held, that the defendants must give particulars of the accidents, perils, and causes which occasioned the damage. The Hakon Add- stein, 43 L. J. Adm. 9. 995a. Plaintiffs in a cause of damage to cargo ordered to furnish particulars as to certain portions of their claim, in. order that the defendant might be put in a position to admit liability and pay into court. The Wetterhorn, 3 Asp. N.S. 168 ; 34 L. T. N.S. 587 ; 24 W. E. 324. 996. In a cause of damage by collision, where the plaintiff's vessel was totally lost, particulars of their claim ordered to be given. The N. P. Neilsen, 3 Asp. N.S. 169 ; 34 L. T. N.S. 588; 24 W. E. 324. 996a. For forms of orders for such par- ticulars, see E. S. C. 1883, Appendix K., Nos. 12 and 13. 4. Security for Costs.\ 997. The day on which an order for security for, costs is served, and the time thenceforward until and including the day on which such security is given, shall not be reckoned in the computation^ time allowed to plead, answer interroga- * (364a) As to particulars of demand in the Queen's Bench Division, see Archbold's Practice, 14th ed. vol. 1, pp. 380 et seq., and Chitty's Forms, 12th ed. p. 213. ■ f (365) Application for security for costs should be made on summons. Such security is, notwithstanding Ord. LXV. r. 2, No. 982, given in the Admiralty Division, like ordi- nary bail, and the bail bond is the same, ex- cept that the words "so far as reg costs," are substituted for the words "with costs " in the bail bond. (365a) As to the mode of proceeding to obtain security for costs in the Queen's Bench Division, see Wilson's Jud. Acts and Eules, 4th ed. p. 531, and Archbold's Practice (14th ed. by Chitty), vol. 1, p. 395. PRACTICE. Pt. II. In the High Court. Cap. 24. 1571 tories, or take any other proceeding in the cause or matter. Ord. LXIV. r. 6, No. 966. 998. See. also tit. Costs, o. 19, pp. 363 ■ — 369 ; and as to amount of such secu- rity, Ibid. p. 363. 999. As to security for costs on appli- cation to answer interrogatories, see tit. Costs, c. 19, p. 363 ; and ibid, in Addenda. 999a. As to dismissal of causes for delay in giving security for costs, see Nos. 1091, 1092, infra; and tit. Costs, p. 364. 5. Inquiries. 1000. The court or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries to be made, notwithstanding that it may appear that there is some special or fur- ther relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. Ord. XXXIII, r. 2, No. 381. 1001. In an action for necessaries, on motion for judgment, opposed on the. ground that the sum sued for was in respect of matters covered by a contract, and applying that an enquiry might be directed under Ord. XXXIII., order for enquiry directed accordingly ; semble to the registrar and merchants. The Sully, 48 L. J. Adm. 56. 6. Accounts under Directions. (a) Generally.* 1002. The court or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary accounts to be taken, notwithstanding that it may appear that there is some special or fur- ther relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. Ord. XXXIII. r. 2, No. 381. 1003. The court or a judge may, either by the judgment or order directing an account to be taken or by any subsequent order, give special directions with regard to the mode in -which the account is to be taken or VQUched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as primd facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such ob- jections thereto as they may be advised. Ibid. r. 3, No. 382. 1004. As to each direction being num- bered so that each distinct account and inquiry may be designated by a number, and as to the form of such judgment or order for account, Ibid. r. 7, No. 386. 1005. In taking any account directed by any judgment or order, all just allow- ances shall be made without any direction for that purpose. Ibid. r. 8, No. 387. 1006. As to the provisions of Rules 14, 15, 19, 34, 35, 36 and 37 of this Order, applying to an inquiry under a writ of inquiry, see Ord. XXXVI. r. 56, No. 480. 1007. Where damages are to be as- sessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment. Ibid.x. 58, No. 482. (b) The Account. 1008. Where any account is directed to be taken, the accounting party, unless the court or a judge shall otherwise direct, shall make out his account and verify the same by affidavit. The items on each side of the account shall be num- bered consecutively, and the account shall be referred to by the affidavit as an exhibit and be left in the judge's cham- bers, or with the official or other referee, as the case may be. Ord. XXXIII. r. 4, No. 383. 1008a. But the judge may direct the vouchers to be produced at the offices of the solicitor of the accounting party, or at any other' convenient place, and that only such items as may be contested or surcharged shall be brought before the judge in chambers. Ibid. r. 4a of 1885. (c) The Surcharge. 1009. Any party seeking to charge any accounting party beyond what he has by his account admitted to have re- ceived shall give notice thereof to the accounting party, stating, so far as he is able, the amount sought to be charged, and the particulars thereof in a short and succinct manner. Ibid. r. 5, No. 384. (d) Proceedings in Case of Delay. 1010. For provisions in the event of undue delay in the prosecution of any * (366) As to such accounts, see Wilson's Jud. Acts and Eules, 4th ed. p. 321. (366a) Accounts cannot be taken in a dis- trict registry, except in pursuance of an order under this section. Ibid. 1572 PRACTICE. Pt. II. In the High Court. Cap. 24. accounts or inquiries, or in any other -proceedings under any judgment or order, that the court or judge may require the party to explain the delay, and thereupon make such order with regard to expe- diting the proceedings or the conduct, or stay thereof, and as to costs as the cir- cumstances of the case require, see Ord. XXXIII. r. 9, No. 388. 7. Solicitors' Agreements.* 1011. Any agreement in writing be- tween the solicitors in Admiralty actions dated and signed by the solicitors of both parties, may, if the Admiralty registrar think it reasonable and such as the judge would under the circumstances allow, be filed, and shall thereupon become an order of court, and have the same effect as if such order had been made by the judge in person. Ord Lll.r. 23, No. 718. 1012. The value of ship and freight may be settled by agreement between the proctors {semble duly filed), in which case both parties are bound by their own act and consent. The Mellona, 3 W. Eob. 23 ; 6 Notes of Cases, 69. 1013. A settlement of the cause by agreement will release the bail. The Harriet, 1 W. Eob. 195 ; 6 Jur. 197 ; 1 Notes of Cases, 327. 1014. The Court of Admiralty would not take judicial cognizance of agree- ments between practitioners when such agreements did not appear in orders of courts. The Saracen, 10 Jur. 398 ; 4 Notes of Cases, 511 ; and see The Man- chester, 1 W. Eob. 94; The Mellona, 3 Eob. 25 ; 12 Jur. 274 ; 6 Notes of Cases, 72. 1015. An interview for the settlement of a claim is best conducted by the prac- titioners of the parties in person. Pre.- liminary negotiations, especially in causes of wages, are entitled to the peculiar protection of the court. There is no necessity to state at such interviews that they are without prejudice, the res gestce sufficiently indicate it. The Frederick, 1 Hagg. 220. 1016. At a meeting for amicable ar- rangement of claims, where the parties are personally produced for the purpose of agreement and to prevent litigation, a disclosure of all facts tending to a just conclusion should be made, and facts, without which a knowledge of the real justice is unattainable, should not be suppressed. Parties should attend such a meeting in a spirit of equitable adjust- ment. Ibid. 223. • 1017. A negotiation and settlement with a party for whom a proctor had appeared, without intimation to that proctor, is irregular and improper. The Haidee, 1 Notes of Cases, 599 ; see also The Araminta, Swabey, 81. 1018. In a cause of salvage a negotia- tion and settlement with certain of the salvors, unknown to their proctor, and certain offers in the nature of a tender to the others of them, in satisfaction of their claims, held to be no legal settle- ment or tender, and overruled accordingly with costs. The Haidee, 1 Notes of Cases, 600. 8. Special Case. (a) Generally,] 1019. The parties to any cause or mat- ter may concur in stating the questions of * (367) The form of agreement is as fol- lows [set out number and title of cause] : We, the undersigned, the solicitors for the plaintiffs and defendants in this cause, hereby agree that [set forth matter of agreement]. Dated this day of ,1886. (•367a) This agreement is signed by the solicitors on both sides, each describing him- self as solicitor for plaintiff or defendant. (368) It is then filed by one of the solici- tors, and an adhesive stamp of 5s. is affixed by him on the usual minute on filing it. There is no settled practice as to which solicitor should prepare and file the agreement. (368a) In causes of Salvage, agreements as to values of the salved property are usually prepared and filed by the defendant's solicitor. t (369) The application under Ord. XXXIV. r. 2, No. 190, should be by summons, to show cause why the facts should not be stated in a special case, and the applicant should have an affidavit showing that no facts are in dispute in the action. The order may be made any time after the defendant has ap- peared, and before the delivery of a state- ment of claim. See Eoscoe's Admiralty Prac- tice, 2nd ed. p. 216, and cases there cited. (369a) For an order of the judge of the Admiralty (anno 1678), for the preparation of a special case in a question of construction of statutes to be laid before the common law judges, see Rex v. Be la Vol, Marsden's Eep. p. 248. (370) As to special cases in the Queens Bench Division see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 1343. , . (371) On motion or summons, the original affidavits and documents connected with the application are sent to the judge by the re- gistry officials without any notice for that purpose by the practitioners. PRACTICE. Pt. II. In the High Court. Cap. 24. 1573 law arising therein in the form of a special case for the opinion of the court. Ord XXXIV. r. 1, No. 389. 1020. If it appear to the court or a judge that there is in any cause or matter a question of law, which it would he con- venient to have decided before any evi- dence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the court or judge may make an order accord- ingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court or judge may deem expedient, and all such further pro- ceedings as the decision of such question of law may render unnecessary may there- upon be stayed. Ibid. r. 2, No. 390. 1021. Every such special case shall be divided into paragraphs numbered con- secutively, and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions raised thereby. Ibid. r. 1, No. 389. 1021a. This order shall apply to every special case stated in a cause or matter, or in any proceeding incidental thereto. Ibid. r. 7, No. 395. 1022. For form of speoial case, see The Two Ellens, L. E. 3 A. & E. 345 ; 41 L. J. Adm. 33. 1022a. For a special case stated by the registrar on a reference, see The John Bellamy, L. E 3 A. & E. 129 ; 39 L. J. Adm. 28. (b) Entry for Argument. 1023. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the Form No 25 in Appendix G. Ord. XXXIV. r. 5, No. 393. 1024. As to the setting down and en- tering for argument of a special case where a married woman, infant, or person of unsound mind is a party, Ibid. rr. 4 and 5, Nos. 392 and 393. (c) Agreement for Payment of Money and Costs. 1 025. The parties to a special case may, if they think fit, enter into an agreement in writing, which shall not be subject to any stamp duty, that, on the judgment of the court being given in the affirmative or negative of the questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the court, or in such manner as the court may direct, shall be paid by one of the parties to the other of them, either with or with- out costs of the cause or matter ; and the judgment of the court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal. Ibid. r. 6, No. 394. (d) Signatures and Filing. 1026. Every special case shall be signed by the several parties or their counsel or solicitors, and shall be filed by the plain- tiff. Ibid. r. 3, No. 391. (e) Printing. 1 027 . Every special case shall be printed by the plaintiff. Ibid. (f ) Copies for Judges. 1 028. Three printed copies of the special case for the use of the judges shall be left therewith. Ibid, and r. 9 of 1885. (g) Hearing. 1029. Upon the argument of such case the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and docu- ments stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial. Ord. XXXIV. r. 1, No. 389. 9. Motions. (a) Generally.* 1030. Where by these rules any ap- plication is authorized to be made to the court or a judge, such application, if made to a divisional court or to a judge in court, shall be made by motion. Ord. LII. r. 1, No. 696. 1031. In general no motion is to be made without previous notice to the par- ties affected thereby. But the court or a judge, if satisfied that the delay might entail serious mischief, may make an order ex parte upon terms, and the party (14th (371a) As to motions in the Queen's Bench Division, see Archbold's Practice ed. by Ohitty), vol. 2, pp. 1378 et seq. 1574 PRACTICE. Pt. II. In the High Court. Cap. 24. affected may afterwards move to set it aside. Ord. LII. r. 3, No. 698. 1032. A party appearing and con- senting to a motion, by which he would not be prejudiced, will not be allowed his costs of doing so. The Achilles, 1 Asp. N.S. 165; 25L. T.N.S. 605; The Albion, 6 L. T. N.S. 166 * 1033. As to motions or applications for a rule nisi or order to show cause, see Ord. LII. rr. 2 and 3, Nos. 697, 698. 1033a. As to motions for transfer of actions, see c. 15, p. 1536. See also Nos. 1058, 1060, 1061, p. 1576. (b) Notice of—. 1034. In Admiralty actions notice of motion together with the affida'wts (if any) in support thereof, shall be filed in the registry three days at least before the hearing of the motion, unless leave shall be given to the contrary; and a copy of the notice of motion and of the affidavits (if any) shall be served on the adverse solicitor before the originals are filed. Ord. LII. r. 10, No. 705. 1035. Every notice of motion to set aside, remit, or enforce an award, or for attachment, shall state in general terms the grounds of the application ; and, where any such .motion is founded on evidence by affidavit, a copy of any affi- davit intended to be used shall be served with the notice of motion. Ibid. r. 4, No. 699. 1036. The plaintiff shall, without any special leave, be at liberty to serve any notice of motion or other notice or any petition or summons upon any defendant, who, having been duly served with a writ of summons to appear, has not ap- peared within the time limited for that purpose. Ibid. r. 8, No. 703. 1037. The plaintiff may, by leave of the court or a judge to be obtained ex parte, serve any notice of motion upon any defendant along with the writ of summons, .or at any time after service of the writ of summons and before the time limited for the appearance of such defen- dant. Ibid. r. 9, No. 704. See also No. 1047, infra. 10. Summons for Directions. 1038. In every cause or matter one general summons for directions may be taken out at any time by any party with respect to the following matters and pro- ceedings : particulars of claim, defence or reply, statement of special case, dis- covery (including interrogatories), com- missions and examinations of witnesses, mode of trial (including proceedings in lieu of demurrer, trial on motion for judgment, and reference), place of trial, and any other matter or proceeding in the cause or matter previous to trial. . Ord. XXX. r. 1, No. 340. 1039. Such summons for directions shall be a summons returnable in not less than four days, in the Form No. 3 in Appendix K., with such variations as circumstances may require, and shall be addressed to and served upon all such parties to the cause or matter as may be affected thereby. The applicant shall, so far as practicable, include in the summons all or as many of the above-mentioned matters and proceedings as, having re- gard to the nature of the cause or matter, can conveniently be dealt with by the order and directions of the court or judge. Upon the hearing of the summons, any party to whom the summons is addressed shall be at liberty to apply for any order or directions as to any of the above-men- tioned matters or proceedings which he may desire, and thereupon, after giving notice to such parties (if any) as the court or judge may direct, any order may be made, and all necessary directions given, as to all or any of such matters and pro- ceedings as may be just, whether applied for or not: such order shall be in the Form No. 4 in Appendix K., with such variations as circumstances may require. Ibid. r. 2, No. 341. 1040. If, upon any other application as to any of the above-mentioned matters or proceedings, it shall appear to the court or judge that the application is one that could and ought to have been included in or made upon the general summons for directions, such application shall be granted only at the costs of the party making the same. Ibid. r. 3, No. 342. 1040a. For forms of summons for directions and order thereon, see E. S. 0. 1883, App. K. Nos. 3, 4. * (372) He should communicate the fact that he consents to the opposite solicitor, and will be allowed to charge for doing so. (372a) The stamp on the summons is 15s., being 108. for the summons and os. for the order. It is an adhesive stamp. As to such summonses in the Queen's Bench Division, see Archbold's Practice, 14th ed. vol. 1. p. 335, and Chitty's Forms, 12th ed. p. 189. PRACTICE. Pt. II. In the High Court. Cap. 25. 1575 11. Summons. See next chapter. 12. Judgment under Ord. XIV. 10-11. For provisions that where the defendant appears to a writ of summons specially indorsed under Ord. III. r. 6, the plaintiff may, on affidavit verifying the cause of action and the amount claimed (if any), and stating that in his belief there is no defence to the action, apply to a judge for liberty to enter final judgment for the amount so in- dorsed, with interest (if any) and costs ; and that the judge may, unless he is satisfied that the defendants or defendant have a good defence to the action on the merits, or that the facts are sufficient to entitle them or him to defend the whole or part of the claim, make an order against all, some, or one of the defen- dants for all or part of the claim, em- powering the plaintiff to enter judgment accordingly, unconditionally, or upon terms as to security, time, or mode of trial or otherwise, and for further provi- sions thereon, see Ord. XIV. 13. Costs. See tit. Costs, c. 2, p. 347. 25. Summons. 1. Generally.* 1042. Every application at chambers not made ex parte shall be made by sum- mons. Ord. LIV. r. 1, No. 734. 1043. Every application for payment or transfer out of court made ex parte, and every other application made ex parte in which the judge or proper officer shall think fit so to require, shall be made by summons. Ibid. r. 2, No. 735. 1044. A summons shall be addressed to all the persons on whom it is to be served. Ibid. r. 10, No. 743. 1045. In every cause or matter where any party thereto makes any application at chambers, either by way of summons or otherwise, he shall be at liberty to in- clude in one and the same application all matters upon which he then desires the order or directions of the court or judge ; and upon the hearing of such application it shall be lawful for the court or judge to make any order and give any direc- tions relative to or consequential on the matter of such application as may be just; any such application may, if the judge thinks fit, be adjourned from cham- bers into court, or from court into cham- bers. Ibid. r. 9, No. 742. 1046. In all cases of applications ori- ginating in chambers, a summons shall be prepared by the applicant or his soli- citor, and shall be sealed in Admiralty actions in the Admiralty registry, and when so sealed shall be deemed to be issued. The person obtaining a sum- mons shall leave at the Admiralty regis- try a copy thereof, which shall be filed, and stamped in the manner required by law. Ibid. r. 11, No. 744. 1047. Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion. Ord. LXX. r. 3, No. 1039. 2. Potvers of Registrar. 1048. In the Admiralty Division a registrar may transact all such busi- ness and exercise all such authority and jurisdiction in respect of the same, as under the acts or these rules may be transacted or exercised by a judge at chambers, except in respect of the follow- ing proceedings and matters ; that is to say, — (a) all matters relating to criminal proceedings, or to the liberty of the sub- ject; (b) granting leave for service out of the jurisdiction of a writ, or notice of a writ of summons ; (c) the removal of actions from one division or judge to another division or judge ; (d) the settle- ment of issues, except by consent ; (e) in- spection and other orders under Ord. L. rr. 1 to 5 ; (f ) appeals from district regis- trars; (g) prohibitions; (h) injunctions and other orders under sub-s. 8 of s. 25 of the principal act; # (i) awarding of costs, other than the costs of or relating to any proceeding before the registrar, and other than any costs which by these rules, or by the order of the court or a judge, he is authorized to award ; (k) reviewing taxation of costs; (1) orders absolute for charging stocks, funds, an- nuities, or share of dividends, or annual * (373) As to summonses and orders in the Queen's Bench Division, see Archbold's Practice (14th ed. by Chitty), vol. 2, pp. 1401 et seq., and Eules 23- Nos. 758—762. -29 of Ord. LIV. 1576 PRACTICE. Pt. II. In the High Court. Cap. 25. proceeds thereof; (m) acknowledgments of married •women. See Ord. LIV. r. 12> No. 745. 3. Forms. 1049. For form of summons and order thereon (general forms), see R. S. 0. 1883, App. K. Nos. 1 and 2. 1050. For form of order for time, Ibid. No. 5. 1051. For form of order dismissing summons (generally), Ibid. No. 57. 4. Originating Summons. 1052. See c. 9, s. 1, p. 1514. 5. For Directions. 1053. As to summons for directions, see c. 24, s. 10, p. 1574. 6. Service. 1054. Seec. 12, s. 15, p. 1531. 7. Alteration. 1055. Summonses shall not be altered after they are sealed except upon appli- cation at chambers. Ord. LIV. r. 3, No. 736. 8. Proofs. 1056. AH affidavits which have been previously made and read in court upon any proceeding in a cause or matter may be used before the judge in chambers. Ord. XXXVHI. r. 21, No. 541. 1057. All accounts, copies, and papers left at chambers, shall be written upon foolscap paper, bookwise, unless the na- ture of the document renders it imprac- ticable. Ord. LXVI. r. 2, No. 1004. 9. Hearing. 1058. If on the hearing of a motion or other application the court or a judge shall be of opinion that any person to whom notice has hot been given ought to have or to have had such notice, the court or judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the court or judge may think fit to impose. Ord. LII. r. 6, No. 701. 1059. "When a summons is taken out to set aside any process or proceeding for irregularity with costs, and the summons is dismissed generally without any special direction as to costs, it is to be understood as dismissed with costs. ,Ord. LXX. r 4 No. 1040. 1060. Where any party appears upon any application or proceeding in court or at chambers in which he is not interested, or upon which, according to the practice of the court, he ought not to attend, he is not to be allowed any costs of such appearance unless the court or judge shall expressly direct such costs to be allowed. Ord. LXV. r. 27, No. 1002, sub-r. 23. 10. Adjournment of Hearing. 1061. The hearing of any motion or application may from time to time be ad- journed upon such terms, if any, as tie court or judge shall think fit. Ord. LII. r. 7, No. 702. 1062. Where matters in respect of which summonses have been issued are not disposed of upon the return of the summons, the parties shall attend from time to time without further summons, at such time or times as may be appointed for the consideration or further considera- tion of the matter. Ord. LIV. r. 8, No. 741. 1063. Any application in chambers by summons or otherwise may be adjourned from chambers into court. Ibid. r. 9, No. 742. 11. Hearing in Default of Attendance. 1064. Where any of the parties to a summons fail to attend, whether upon the return of the summons, or at any time appointed for the consideration or further consideration of the matter, the judge may proceed esc parte, if, consider- ing the nature of the case, he think it expedient so to do ; no affidavit of non- attendance shall be required or allowed, but the judge may require such evidence of service as he may think just. Ibid. r. 5, No. 738. 1065. Where a proceeding in chambers fails by reason of the non-attendance of any party, and the judge does not think it expedient to proceed ex parte, the judge may order such an amount of costs (if any) as he shall think reasonable to be paid to the party attending by the absenj' party or by his solicitor personally. Ibif r. 7, No. 740. bei i 12. Rehearing of, after Order by DefauWn 1066. Where the judge has proceeded ex parte, such proceeding shall notin any manner be reconsidered in the judges PRACTICE. Pt. II. In the High Court. Cap. 27. 1577 chambers, unless the judge shall be satisfied that the party failing to attend was not guilty of wilful delay or negli- gence ; and in such case the costs oc- casioned by his non-attendance shall be in the discretion of the judge, who may fix the same at the time, and direct them to be paid by the party or his solicitor before he shall be permitted to have such proceeding reconsidered, or make such other order as to such costs as he may think just. Ibid. r. 6, No. 739. 13. Appeal from Judge in Chambers. 1067. Every order by a judge of the High Court in chambers, except orders by consent of parties or as to costs by law left to his discretion, may be set aside or discharged on notice, by any divisional court, or by the judge in court, according to the practice of the division to which the cause or matter in which the order is made is assigned. See the Supreme Court of Judicature Act, 1873 (c. 66), s. 50. 14. Costs. 1068. As to costs of summons, see tit. Costs, c. 2, p. 347. 1068a. As to costs in connection with attendance at judges' chambers, see tit. Costs, c. 28, p. 385. 26. Subpoenas. See o. 35, p. 1630. 27. Notices or Praecipes. 1 . Generally.* 1069. All notices required by these rules shall be in writing, unless expressly authorized by the court or a judge to be given orally. Ord. LXVI. r. 1 , No. 1 003. 1069a. Every instrument under the seal of the court, and prepared in the Admiralty registry, shall be issued on a notice filed by the solicitor applying for the same, and shall bear date on the day on which it was issued. Ord. LXVII. r. 10, No. 1021. 1070. As to notice to the proper officer of the assignment of an action to a par- ticular division of the court, see Ord. V. r. 14, No. 36. Of writ of summons out of the juris- diction, see E. S. C. 1883, App. A. Nos. 9 and 10, and c. 8, p. 1511. To third parties ordered to be made parties to proceedings, thp form, par- ticulars, filing, and service thereof, see E. S. C. 1883, App. B. No. 1 ; and c. 6, p. 1500. 1071. As to notice or praecipe for war- rant, see E. S. C. 1883, App. A. Pt. I. No. 15, and note 191, p. 1518. As to praecipe f or service by the marshal of any instrument in rem other than a warrant, see E. S. C. 1883, App. A. Pt. I. No. 16. As to notice of withdrawal of warrant, see Ord. XXIX. r. 2, No. 323. Of appearance, see No. 701, p. 1534. Of removal of cause from district regis- try to London, No. 734, p. 1538. As to prmcipe for caveat warrant, see E. S..C. 1883, App. A. Pt. II. No. 18, and Pt. I. p. 1477. For caveat release, Ibid. No. 17, and Ibid. p. 1477. For caveat against payment of money out of court, see Pt. I. p. 1478. To withdraw caveat, see E. S. C. 1883, App. A. Pt. II. No. 19, and Ibid. p. 1478. As to notice of payment of money into court before delivery of defence, Ibid. App. B. No. 3; Ord. XXII. r. 4, No. 258; and Ibid. p. 1481. Of acceptance of the money paid into court in satisfaction of the claim or cause of action, see Ord. XXII. r. 7, and for form thereof, E. S. C. 1883, App. B. No. 4. As to notice of bail, see c. 19, p. 1547 ; andc. 12, p. 1531. As to praecipe for release, see E. S. C. 1883, App. A. Pt. II. No. 15. As to notice requiring statement of claim, see No. 1227, p. 1592. As to notice limiting defence, Ibid. Pt. II. No. 3. Of counterclaim, Ibid. App. B. No. 2. Of motion, Ibid. No. 18, and c. 24, p. 1574. Of intention to proceed after twelve- months' lapse, see No. 1128, p. 1583. Of cross-examination of deponents to affidavits at trial, Ibid. No. 20 ; No. 1616, p. 1628 ; and c. 35, p. 1628. To produce (general form), Ibid. No. 14; and. Ibid. p. 1618. To produce documents for inspection, see Ord. XXXI. rr. 14—17, Nos. 356— 359 ; E. S. C. 1883, App. B. No. 9 ; and c. 35, p. 1618. Assenting or objecting to inspection of * (373a) The term notice seems to have been intended to be used instead of the term r. praecipe, and is so used in the rules, but the term praecipe is retained in the forms. 5 i 1578 PRACTICE. Pt. II. In the High Court. Cap. 28. documents, see E. S. C. 1883, App. B. No. 10. To inspeckdocuments, see Ord. XXXI. r. 17, No. 359, E. S. C. 1883, App. B. No. 11, and c. 35, p. 1617. . To admit facts, see E. S. C. 1883, App. B. No. 12, and c. 35, p. 1618. Of admission of facts, Ibid. No. 13, and Ibid. p. 1618. Of trial, see c. 38, s. 4, p. 1634. Of trial in proceedings by default, c. 22, p. 1564. Of hearing of reference, see c. 40, s. 10, p. 1653. Of objection to report, Ibid. p. 1656. Of motion for judgment, see c. 33, p. 1643. As to prcecipe for writs of execution, see c. 43, p. 1662. As to notice for renewal of writ of execution, see E. S. 0. 1883, App. B. No. 21 ; and Ibid. p. 1662. For attachment and to return writ, see Ord. LII. r. 4, No. 699, and Ibid. pp. 1663, 1664. As to prcecipe for commission of ap- praisement and sale, see note 643a, p. 1668. As to notice of appeal, see tit. Appeals, p. 1. 2. Service. See c. 12, ss. 12, 13, p. 1530; s. 17, p. 1531 ; and c. 39, s. 28, p. 1647. 3. Of Action* 107.2. Where a notice of action is re- quired the notice should not be construed with extreme strictness. As to what is or is not a proper notice of action, see Union Steamship Co. of New Zealand v. Mel- bourne Harbour Commissioners, 5 Asp. 222 ; 53 L. J. P. 0. 59. 1072a. A letter merely stating that damage had been sustained for which the defendants would be held liable, is not a notice of action. Ibid. See also No. 235, p. 1488. 28. Discontinuance. f 1 . Generally. 1073. The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent ; action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge, but the court or a judge may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of com- plaint to be struck out. The court or a judge may, in like manner, and with the like discretion as to terms, upon the ap- plication of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be compe- tent to a defendant to withdraw his de- fence, or any part thereof, without such leave. Ord. XXVI. r. 1, No. 290. 1074. When a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing, signed by the parties. Ibid. r. 2, No. 291. 1075. Any defendant may enter judg- ment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned by the matter with- drawn, if the action be not wholly discon- tinued, in case such respective costs are not paid within four days after taxation. Ibid. r. 3, No. 292. 1076. If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or sub- stantially the same, cause of action, the court or a judge may, if they or he think fit, order a stay of such subsequent action, until such costs shall have been paid. Ibid. r. 4, No. 293. 1077. As to the effect on the counter- claim of notice of discontinuance of the principal action, see c. 4, s. 8, p. 1493. 1078. A letter from the plaintiff's soli- citors to the defendant's solicitors in an action in rem, stating that they were in- structed to proceed no further with the * (374) As to notice of action, see Aroh- bold's Practice (14th ed.), vol. 1, p. 206. t (374a) As to discontinuance of action, Ibid. p. 337 ; and Chitty's Porros (12th ed.). p. 192. PRACTICE. Pt. II. In the High Court. Cap. 29. 1579 action, is a sufficient notice of discontinu- ance, under Ord. XXIII. r. 1, which is similar to Ord. XXVI. r. 1, No. 290. The Pommerania, 4 P. D. 195 ; 48 L. J. P. D. 55. 1079. Semble, the owner of a ship may- be sued if an action has been brought against the master and discontinued. Priestly v. Fernie, 11 Jur. N.S. 813; 34 L. J. Exch. 173; 13 W. E. 1089; 13 L. T. N.S. 208. 1080. The owner and master stand on the same ground as any other principal and agent in respect to this question. Ibid. 1081. For form of notice of discon- tinuance, see E. 8. C. 1883, App. B. No. 19. 1082. As to the right of the defendant to prosecute his counter-claim, notwith- standing the discontinuance of the action by the plaintiff, see c. 4, p. 1493. 2. Costs. 1083. As to costs on discontinuance of action, see Ord. XXVI. rr. 1 and 4, Nob. 290—293. 1083a. For form of judgment for de- fendant's costs on discontinuance, see E. S. C. 1883, App. F. No. 14. 1084. If a plaintiff discontinue an ac- tion the defendant is entitled to his costs under Ord. XXIII. r. 1, now Ord. XXVI. r. 1, No. 290 ; and Ord. LV. r. 1, now Ord. LXV. r. 1, No. 976, does not in such a case leave the costs in the discre- tion of the court. The St. Olaf, 2 P. D. 113 ; 46 L. J. P. D. & A. 74 ; 3 Asp. N.S. 341. 1085. A second mortgagee of 32-64th shares instituted a suit under the 11th section of the Admiralty Court Act, 1861, and arrested the vessel. The mortgagee having discontinued, the court, on the application of the owner of the remaining shares (who was not mortgagor to the plaintiff), condemned the plaintiff in costs, but not in damages. The Volant, B. & L. 321. 1086. A salved vessel having been valued by the receiver of wreck under £1,000, the salvors instituted a suit in the sum of £2,500, and applied for an ap- praisement on the 18th December. On the 14th January following they formally declared that they proceeded no further in the suit. Held, that the salvors must be condemned in costs, and also in damages, from the 22nd December (by which time they might have ascertained that the valuation of the receiver was correct) to the 14th January. The Mar- garet Jane, L. E. 2 A. & E. 345 ; 38 L. J. Adm. 38 ; 3 Asp. 296. 1087. A ship was mortgaged to the defendant to secure a sum exceeding £1,400; the mortgage was duly regis- tered, and the defendant took possession of the ship and advertised her for sale. Before the sale the plaintiff, who held a mortgage on the ship, registered after that of the defendant, instituted an action against the ship to enforce his mortgage, and caused the ship to be arrested. The defendant, to obtain the release of the ship, paid £500 into court in lieu of bail. The ship was sold by the defendant, and the proceeds were insufficient to satisfy his mortgage. The plaintiff, when the cause was ripe for hearing, abandoned the action. Plaintiff condemned in costs, and interest on the £500 paid into court. The Western Ocean, L. E. 3 A. & E. 28. 1088. A salvage service took place on the high seas, and the case was heard by consent before two justices of the peace, who awarded £53. The salvors subse- quently entered an action in the High Court of Admiralty, and arrested the ves- sel. The owners tendered the £53, which, after the vessel had been for some time under arrest, was accepted, and the action discontinued. Held, that the owners were entitled to costs and damages. The Nautilus, Swabey, 105 ; see also The Gloria del Maria, ibid. 106. 29. Dismissal. 1089. If the plaintiff does not give notice of trial within the time prescribed the defendant may do so, or may apply to the court or judge to dismiss the action for want of prosecution ; and on the hear- ing of such application the court or judge may order the action to be dismissed accordingly, or make such other order, and on such terms as may seem just. See Ord. XXXVI. r. 12, No. 436. 1090. An application to dismiss for want of prosecution may be made either in chambers or to the court. Evelyn v. Evelyn, 13 Ch. D. 138. 1091. Plaintiffs were ordered to give security for costs. They neglected to do so for three months. On application of defendants, cause dismissed with costs. The Peri, No. 1387, 13th January, 1862; The Dolphin, No. 1104, 27th March, f862. 1092. Cause dismissed with costs after 5 i 2 1580 PRACTICE. Pt. II. In the High Court. Cap. 30i a similar delay of seven weeks. The Marquis of Lome, No. 1958, 18th Janu- ary, 1864. 1093. The dismissal of a suit for want of prosecution is analogous to a nonsuit. The Flecha, 1 Spinks' Ecol. and Adm. Eep. 439, n. 1094. Tender pronounced sufficient, and defendants and their bail dismissed, hut no order made as to costs. Held, that though the case was one in which the plaintiff would have been entitled to costs, the court had no power to grant them after the defendants and their bail had been dismissed. The Countess of Levin and Melville, 5 L. T. N.S. 290 ; 1 Asp. 154. 1095. For form of order to dismiss for want of prosecution, see It. S. C. 1883, App. K. No. 15. 30. Abatement and Revival. 1. Generally.* 1096. For provisions that no cause or matter shall become abated by reason of the marriage, death or bankruptcy of any of the parties, if the cause of action sur- vive or continue, nor become defective by the assignment, creation or devolution of any estate or title pendente lite ; and that, whether the cause of action survives or not, there shall be no abatement by rea- son of the death of either party between the verdict or finding of issues of fact and the judgment, but that judgment maybe entered, notwithstanding the death, see Ord. XVII. r. 1, No. 178. 1097. For provisions that in such case of marriage, death, bankruptcy, or devo- lution of estate by operation of law, the court or judge may, if necessary for the complete settlement of all the questions involved, order that the husband, per- sonal representative, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice as therein prescribed, and make such order for the disposal of the case and on suck terms as may be just, Ibid. r. 2, No. 179. 1098. For provisions that in case of an assignment, creation, or devolution of any estate or title pendente lite, the case may be continued by or against the per- son to or upon whom such estate has come or devolved, Ibid. r. 3, No. 180. 1099. For provision that where, by reason of marriage, death, bankruptcy, or any other event occurring after the commencement of a case, and causing a change or transmission of interest or lia- bility ; or by reason of any person inte- rested coming into existence, it is desir- able that any person not already a party should be made a party, or that any person already a party should he made a party in another capacity, an order that the proceedings shall be carried on be- tween the continuing parties, and such new party or parties, may be obtained ex parte on application to the court or judge, upon an allegation of such change, transmission of interest or liability, or new interest, Ibid. r. 4, No. 181. 1100. For provisions that the order so obtained shall, unless otherwise di- rected, be served on the party or par- ties, or their solicitors, and on each such new party, unless the applicant be himself the only new party, and that the order shall" from such service; but subject to the next two rules, be binding on the persons so served, and that the persons not previously parties shall be bound to enter an appearance thereto in the same time and manner as if served with a writ of summons, Ibid. r. 5, No. 182. 1101. For provisions that where any person who is under no disability other than coverture, or under disability not being coverture, but having a guardian ad litem in the cause or matter, is served with such order, he may apply to the court or judge within twelve days from service thereof to discharge or vary such order, Ibid. r. 6, No. 183. * (375) As to change of parties by death or otherwise, see Wilson's Judicature Acts and Eules, 4th ed. p. 238 ; and in actions in the Queen's Bench Division, Archbold's Practice (14th ed. by Chitty), vol, 2, pp. 1025 et seq. (376) In the American Admiralty Courts the death of a party does not necessarily abate*the suit. Actions for injuries to the person do not survive to or against the re- presentatives Of either party, but actions respecting property survive. See Dnnlaps Adm. Practice, 2nd ed. p. 97. [Amebicak.J (377) If a party to an action dies pending a suit m this court, and the cause of action survives, no disadvantage accrues therefrom to either party. A suggestion of the ». apud acta, removes the technical difficulty. Neviit v. Clarke, Olcott, Adm. 316. [ALBI- CAN.] PRACTICE. Pt. II. In the High Court. Cap. 31. 1581 1102. For provisions that where any person under disability other than cover- ture, and not having such a guardian, is so served, he may apply within twelve days from the appointment of a guardian ad litem to him to have the order dis- charged or varied, and that until such period has expired the order shall have no force against him, Ibid. r. 7, No. 184. 1103. For provisions that where the plaintiff or defendant dies and the cause of action survives, but the person entitled to proceed fails to do so, the defendant may apply by summons to compel the plaintiff to proceed within such time as may be ordered; and in default, that judgment may be entered for the de- fendant, and if the plaintiff has died exe- cution may issue as provided by Ord. XLII. r. 23, Ibid. r. 8, No. 185. 1 104. For provisions that in case of the cause becoming abated or of a change of interest as by this order provided for, the solicitor for the plaintiff shall certify the fact to the proper officer, who shall cause an entry thereof to be made in the cause book, Ibid. r. 9, No. 186. 1105. Where any cause or matter shall have been standing for one year in the cause book marked as "abated," or stand- ing over generally, such cause or matter at the expiration of the year shall be struck out of the cause book. Ibid. r. 10 No. 187. 2. Pleading. 1106. No plea or defence shall be pleaded in abatement. See Ord. XXI. r. 20, No. 253. 3. In Bottomry Actions. 1 107. A bottomry bond is a negotiable instrument, which may be transferred and put in issue by the person so acquiring it. But where such bond was put in suit originally on the part of a French mer- chant in 1792, suspended during a subse- quent war, not enforced on the recurrence of peace, and after an interval of twelve years attempted to be further prosecuted on the part of an English merchant, to whom it had been endorsed, the court would not allow it to be put in execution under the original proceedings. The Re- becca, 5 0. Eob. 102. 4. In Wages Actions. 1 108. A decree for wages, with costs to a mariner when deceased, may be renewed to his administrator. The Prince George, 3 Hagg. 382. 1109. Suit for wages by master, who died pending suit. The court allowed the suit to be carried on by the adminis- trator of the deceased master. The Sul- phide, May 10, 1860. 1110. Master instituted a cause of wages and afterwards became insolvent. The cause was allowed to be proceeded with by and in the name of the assignee. The John Cock, 17 Jur. 306. 5. Costs. See tit. Costs, p. 350. 31. Estoppel. 1. Generally* 1111. See, as to estoppel generally, The Duchess of Kingston's case, and the notes thereto in Smith's Leading Oases, 8th ed. vol. 2, p. 784. 1112. A party may be estopped by his pleading as to a matter of fact, but qumre as to a question of law. The Killarney, 1 Lushington, 431. 1113. Semble, admission by pleading extends to matters of fact, but not of law. The Peerless, 1 Lushington, 103 ; 13 Moore, P. C. C. 488 ; 30 L. J. Adm. 89 ; 3 L. T. N.S. 126. 1114. The institution of a suit as a cause of necessaries does not estop the plaintiff from afterwards pleading and proving that his claim is in respect of repairs, but the title of the cause must be amended. Leave to amend given. The SMpwith, 10 Jur. N.S. Adm. 445 ; 10 L. T. N.S. 43. 1115. An agent appropriating, in his accounts with his principal, sums re- ceived to the payment of specific items, is estopped from disputing the payment of * (f^? ) ^ ne statutory bar imposed by the M. S. Act, 1854 (c. 104), s. 298, to the re- covery of damages by vessels infringing the rules as to steering and carrying lights im- posed by that statute, has been repealed by the M. S. Act Amendment Act, 1862 (c. 63), ss. 2 and 25. Section 29 of the last act con- tained similar provisions, but was repealed by s. 33 of the M. S. Act, 1873 (c. 85). For cases under those repealed sections, see tit. Collision, p. 215, n. (378) See now as to the statutory effect of breach of the Sea Collision Bules, flt. CoL- L.ISION, Ibid. pp. 215 and 219. 1582 PRACTICE. Pt. II. In the High Court. Cap. 31. those items. The Twentje, otherwise Th West Friesland, 13 Moore, P. C. C. 186 ; Swabey, 454. 1116. Parties who had abandoned a former action instituted by them to com- pel the payment of two bottomry bonds, held, not to be at liberty, no strong grounds being shown, to bring a second action upon the same bonds. Such an action dismissed accordingly, with costs and demurrage. The Fortitude, 2 Dod- son, 58. 1 1 1 7 . In the progress of a cause through a misapprehension of the plaintiff's proc- tor in not appearing on a specific occasion, the cause was dismissed without a hear- ing on the merits. Subsequently a second suit was instituted, and the ship again arrested in respect of the same cause of action. The defendant appeared under protest questioning the legality of the second arrest. Held, that it was legal, and that the dismissal of the first suit was analogous to a nonsuit. The Flecha, 1 Spinks' Eccl. & Adm. Eep. 439. 1118. A claim by the owners of a da- maged vessel for loss sustained, estimated moderately to avoid litigation, having been rejected, and the matter afterwards re- ferred to the registrar and merchants, the owners held not bound by their original estimate, nor barred of their right to prove an actual loss greater than that estimate. The Two Sisters, 1 ibid. 99. 1119. Shipowners being under a con- tract to replace their ship immediately, if lost, insured her for £10,000, two years after which the ship was lost. Held, that they were not estopped from proving in a suit instituted by them under the M. S. Act, 1854 (c. 104), part 9, that the value of the ship at the time when she was lost did not exceed £5,900. African Steam- shit) Co. v. Swanzy, 2 K. & J. 660; 25 L. J. Ch. 870. 1120. For cases as to the effect, on the claimant's lien, of the taking of a bill of exchange, in causes of bottomry, see tit. Bottomry, p. 140 ; by material men, The N. R. Gosfabrick, Swabey, 345 ; and tit. Necessaries, Repairs and Supplies, p. 1170; salvage, The Chieftain, 4 Notes of Oases, 459 ; wages, The William Money, 2 Hagg. 136; The Simlah, 15 Jur. 865; and Cutter v. Powell, 2 Smith's Leading Cases, 8th ed. p. 1. 2. Lis alibi Pendens. See tit. Jurisdiction, Pt. I. p. 658. 3. Res Judicata. See tit. Jurisdiction, Pt. I. p. 659. 4. Injunction and Prohibition. (a) Generally. See tit. Jurisdiction, Pt. I. pp. 646 — 649. (b) To Inferior Courts and Officers. 1121. The Admiralty Division granted an injunction ex parte, restraining the defendant in an action of co-ownership, from dealing, and the registrar from registering any dealing in the shares of a ship, the subject of the action. The Horlock, 36 L. T. N.S. 622 ; 2 P D. 243 ; 47 L. J. P. D. 5 ; 3 Asp. N.S. 421. 5. Stay of Proceedings. (a) Generally.* 1 122. For provision that no cause pend- ing in the High Court or Court of Appeal shall be restrained by prohibition, or in- junction ; but every matter of equity on which an injunction might before this actjhave been obtained may be relied on by way of defence ; but that nothing in this act shall disable either court from directing a stay of proceedings ; and that any person, whether a party or not, who would have been entitled before this act to apply to restrain the prosecution • of proceedings or to enforce any judgment or order, as therein mentioned, shall be at liberty to apply by motion for a stay of proceedings, either generally or other- wise, seethe Judicature Act, 1873 (c.66), s. 24, sub-s. 5. 1122a. It would seem from the terms of this sub-sect, that matters which would formerly have been grounds for an in- * (379) This rule only applies to cases where a winding-up order or administration order has actually been made. See Wilson's Jud. Acts and Rules, 4th ed. p. 423, andNos. 527, 528, p. 1516. (379a) It is now well settled that before that time application must be made to the division in which the action is pending. Ibid, and cases there cited. 380. An action pending in one division will not be stayed by another division or j udge unless the defence is on grounds uncon- nected with the cause of action. Affirnungi Malins, V.-O., Qarbutt v. Fawcw, 1 0h,J>! 155, PRACTICE. Pt. II. In the High Court. Cap. 31. 1583 junction restraining an action, must now be raised in the action itself either by- way of defence or upon an application to stay proceedings. See Garbutt v. Fawcus, L. E. 1 Oh. D. 155. C. A. 1123. For provision that when an order has been made by the judge of any Chancery Division for the winding-up of any company, or the administration of assets of a testator or intestate, the same judge shall have power to order the transfer to his court of any cause or matter in any other court or division by or against such company, or the executors or administrators of such testator or in- testate, see Ord. XLIX. r. 5, No. 653. And see Nos. 527, 528, p. 1516. 1 123a. After a collision on the high seas between the 0. and the I., two foreign vessels. The C. was arrested in Holland by the owners of the I., but released, with their consent, on a guarantee to answer judgment in that action, and cross-proceedings were instituted there by the owners of the C. An action was subsequently commenced in this country by the owners of the I. against the 0., and the 0. arrested in respect of the same collision. The plaintiffs offered to aban- don the action in Holland. Held (dis- sentiente Brett, M. E.), that the proceed- ings in this country must be stayed and the ship released. The Christianslorg , 10 P. D. 141; 54 L. J. Adm. 84; 53 L. T. 612. 1124. Pending proceedings in a Vice- Admiralty Court by the owners of the P. against the G., an action subsequently brought in the Admiralty Division by the owners of the G., against the owners of the P., ordered to be stayed. The Peshawur, 8 P. D. 32 ; 52 L. J. Adm. 30 ; 48 L. T. 796; 5 Asp. 89; 31 W. E. 660. (b) For toant of Disclosure by Plaintiff's Solicitors. 1125. As to stay of proceedings in respect of non-disclosure by solicitor, after demand, whether a writ has been issued by him, or by his authority, see Ord. VII. r. 1, No. 42, and No. 520, p. 1515. 1125a. For provision that when a writ is sued out by partners in the name of their firm, and the plaintiffs or their soli- citors, after demand in writing by or on behalf of any defendant, fail to declare forthwith the names and places of resi- dence of all the persons constituting the firm, all proceedings in the action may be stayed upon such terms as may be directed. Ibid. r. 2, No. 43, and No. 521, p. 1515. 6. Delay. (a) Generally. 1126. The court has no authority to refuse to entertain a suit brought by a party alleging himself to be aggrieved, provided it be commenced within the period limited by law. If, however, there was unreasonable or improper delay, the court would, in all cases where the proof was not sufficiently clear, consider that such delay raised a presumption against the party guilty of it. The Mellona, 3 W. Eob. 10. See also tit. Laches, p. 800. 1127. In the case of a sale of a ship in a foreign port by the master, the owner's delay alone may not destroy his right to institute a suit, but when unnecessary delay arises, and when injury to others may arise from that delay, it may import acquiescence in the sale, and if there be acquiescence in the sale, however unau- thorized, it may have been at its com- mencement, the sale is then ratified by the act of the owner himself. The Aus- tralia, Swabey, 486; 13 Moore, P. 0. 0. 132. (b) Twelve Months' lapse. 1128. In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule. Ord. LXIV. r. 13, No. 973. 1 128a. As to motion for judgment after twelve months' lapse, see Ord. XL. r. 9, No. 567. 7. By want of Pleading. 1129. In a cause of salvage the owners appeared but did not answer the peti- tion, and a conclusion was filed by the plaintiffs. The defendant, who appeared by counsel at the hearing, and claimed to be heard in depreciation of the services, although not denying the facts in the petition, held, not entitled to be heard. The Emerald (2300), 13th December, 1864. 8. After Discontinuance without Payment of Costs. See No. 1076, p. 1578. 1584 PRACTICE. Pt. II. In the High Court. Cap. 31. 9. Effect of Discontinuance on Counter- claim. See o. 4, s. 8, p. 1493. 10. After Submission to Arbitration. 1130. A plaintiff who has submitted to arbitration is not thereby debarred from proceeding in rem in the Admiralty Court. The Sylph, L. E. 2 A. & E. 24 ; 37 L. J. Adm. 14 ; 3 Asp. 37. 11. In Salvage Actions.* 1131. Where a fair salvage agreement has been made in a bond fide manner between the masters of the salving and salved vessels, the officers and seamen of the salving vessel, although not consulted as to the agreement, ought not to bring an action of salvage. In such a case the plaintiffs condemned in the costs of the action. The Nasmyth, 10 P. D. 41. 1132. Qucere, whether the master of a salving vessel is agent for the owner to compromise a salvage claim if the owner is at hand, and gives no authority. The Elise, Swabey, 440. 1133. Semble, it would be no objection to a claim for salvage, for services ren- dered by one vessel to another, that both were, at the time of the salvage, in the service of a foreign government. The Alfen, Swabey, 189. 1134. A Queen's ship rendered salvage services, for which a bill was given by the master upon the owners, who had in the meantime sold the ship, which was lost on the homeward voyage, and the bill was refused payment. Motion for monition against the owners to show cause why salvage should not be paid, rejected. The Chieftain, 4 Notes of Cases, 459. 1135. Qucere, if a steamer has been guilty of negligence in fulfilling a con- tract to tow the A., and has thereby occa- sioned danger to the GL and the H. from which the steamer subsequently rescued them, can the owners of the G. and the H. set up the breach of contract to ■which, they were strangers, as estopping the steamer's claim to salvage ? The Anna- polis, 1 Lushington, 355 ; 5L.T. N.8. 39. See also Langridge v. Levy, 2 M. & W. 519; Winterbottom v. Wright, 10 M. & W. 109 ; Blackmore v. The Bristol and Exeter Railway Co., 8 E. & B. 1035. 1136. If a ship or cargo is not saved there can be no salvage, and if this result follows from the miscarriage or the mis- conduct of an agent employed by those who claim as salvors', however great or meritorious their exertions may have been, they are identified with their agent for this purpose, and their claim entirely fails. The Atlas, 1 Lushington, 518; 8 Jur. N.S. 753; 31 L. J. Adm. 210; 10 W. E. 850. 1137. When the service rendered by one ship to another in a distant part of the world partakes of the true description of salvage service, the claim for salvage cannot be resisted on the ground that both ships were British. The Portia, 9 Jur. 167. 1 138. A claim for salvage preferred hy a King's ship, after a delay of eight months, dismissed, the salvors being held (the salvage being very slight) to he barred by lapse of time. The Rapid, 3 Hagg. 419 ; but see The John, 8 Jur. 276. 1139. The owners, when present, are the only proper judges of the necessity for the continuance of salvors' services. Ibid. ; The Glasgow Packet, 8 Jur. 675 ; 2 W. Eob. 306. 1140. Salvors having obtruded their services after notice for their discontinu- ance, compensation refused on account of such services, but salvage awarded for the services antecedently rendered, with a sum nomine expensarum. Ibid. 1141. The defendants in a cause of sal- vage entered an absolute appearance, and filed an affidavit of value, stating that the property saved was of greater value than £1,000. The receiver of wreck subse- * (381) A settlement by the master is not binding upon the owners, unless he acted bond fide, and the settlement is such as a dis- creet owner on the spot would probably have made. Marvin on Wreck and Salvage, pp. 22, 149 ; Houseman v. Schooner North Caro- lina, 15 Peters, 45. [American.] (382) Whenever the owners or consignees reside near the place where the court sits in which the salvage suit is pending, they must appear and claim the ship or goods, each for his own interest. The master, in this case, cannot as such claim for them. Marvin on Wreck and Salvage, p. 177. [AMERICAN.] • (383) But where the owners or consignees of the cargo reside at a distance from the place where the court sits, the master is al- lowed, ex necessitate, to claim for them. /W. (384) And as he very rarely or never a the case of a general cargo shipped by a large number of persons canknow the amount of their respective interests, nor their names even, he is allowed to put in a general con- joint claim for the whole cargo as an entirety. Ibid. PRACTICE. Pt. II. In the High Court. Cap. 31. 1585 quently made an affidavit stating that the property was of less value than £1,000. Held, that the defendants had estopped themselves from objecting to the juris- diction. The Dart, 3 Asp. 327. 1142. Owners setting up an agreement in bar of a salvage claim are bound to pay into court the amount stipulated for under the agreement. The Catherine, 6 Notes of Cases, Supp. 2. 1143. Salvage services had been ren- dered to a vessel by several sets of salvors off Ramsgate. The owners of the vessel summonod a meeting of the Commissioners of Salvage for the Cinque Ports, to adju- dicate on the matter. No notice of the intended meeting was given to any of the salvors, and it was proved that it was not usual to give any such notice. At the meeting of the commissioners one set of salvors was unrepresented, but it was proved that they were aware of the meet- ing, and were at hand. The commis- sioners made an award upon the whole matter. The salvors so unrepresented refused to accept their share of the money awarded, and brought their action in the Admiralty Court. Held, that the award was no bar to the action, the plaintiffs not having been parties to the first deci- sion. The Elise, Swabey, 436. 1144. On a claim for salvage preferred by the commander, officers and crew (130 men) of a Government steamer, the use of which for the purpose had been applied for by the owners of the vessel salved, and granted by the admiral, on the stipu- lation that the owners and underwriters would be answerable for the stores ex- pended or damaged. Held, that such stipulation was no bar to their claim for reward for personal service, but only a reason for a less remuneration. The Lustre, 3 Hagg. 154. 1145. A foreign ship was driven by stress of weather into Bridlington, where W. B. undertook the management of the ship and her concerns, and subsequently sent in his accounts. These were disputed by the master, and an agreement was then made to refer them to arbitration. The master signed the agreement on the 17th March, 1848, W. B. on the 5th March; and the ship was arrested in a cause of salvage on behalf of "W. B. on the 12th March. Held, that the agreement was no bar to the action. La Purissima Conception, 13 Jur. 545 ; 7 N. of Cas. 150. 1 146. Unless all the parties negotiating are fully apprised of all the circumstances of the case, negotiation is no admission of salvage services or a negative of a defence to the claim. The Martha, Swabey, 490. See also tit. Salvage. 1147. The court will not entertain the salvage claim of parties who have been convicted for misconduct in the same transaction for which they claim the sal- vage reward. The Wear Packet, 2 Spinks' Eccl. and Adm. Rep. 256, sed contra The Louisa, No. 1507, 1 7th February, 1863. 1148. Claim for towage services ren- dered under contract. Held, that the towage was forfeited by misconduct of the plaintiffs, and subsequent damage caused by them. Quare, whether, not- withstanding such misconduct, the plain- tiffs could, prior to the Judicature Acts, recover towage under the contract, and leave the defendant to a cross action for the damage. This point not having been properly raised or discussed in the Court of Admiralty, the Court of Appeal refused to entertain it. The Christina, 6 Moore, P. C. C. 371. 1 149. As to misconduct, negligence, or want of skill of salvors as entailing for- feiture of, or deductions from, salvage, see tit. Salvage. 12. In Wages Actions. 1150. A master of a vessel is not de- barred from suing for his wages by the fact that he is a joint mortgagee of the Bhip. The Repulse, 2 W. Bob. 339. 1151. A mariner, who having been offered his wages in money, elected to take part thereof in a bill of exchange on the owner, who afterwards became a bankrupt, in consequence of which the bill was dishonoured ; held, not to be en- titled to arrest the ship for wages to the amount of such bill, on the ground that, having made his election, he must stand by the risk. The William Money, 2 Hagg. 136. 1152. A defence in a cause of wages relying on a special agreement as an estoppel by reason of want of jurisdiction should be brought forward as soon as practicable in order to avoid unnecessary expense, and where a defendant omits to adopt that course the court, although decreeing in his favour, will not give costs. 'The Shamrock, 5 Jur. N.S. 178, Adm. C. [Irish.] 1153. During the voyage a ship was wrecked, and the master gave the ma- riners an order upon the owners for the amount of their wages to the date of the wreck, acknowledging at the same time that he had hired them by the month. 1586 PRACTICE. Pt. II. In the High Court. Cap. 32. Held, that under these circumstances no action for wages could be maintained by the mariners against the master, at least without proving that they had first made a demand upon the owners. Forsboom v. Krugor, 3 Camp. 197. (Ellenborough.) See also tit. Wages. 32. Tender. 1. Generally.* 1154. With a defence setting up a tender before action, the sum of money alleged to have been tendered must be brought into court. Ord. XXII. r. 3, No. 257. 1155. A plea of tender without pay- ment into court of the amount tendered is bad. The Nasmyth, 10 P. D. 41 ; 54 L. J. P. D. 63 ; 5 Asp. 364. 1156. Gold coin is the only legal tender, and no tender of silver coin is legal beyond forty shillings. See 56 Geo. 3, c. 68, s. 11. 1157. Bank notes are a legal tender so long as the Bank of England continues to pay on demand their notes in legal coin. See 3 & 4 Will. 4, e. 98, s. 6. 1158. In making a tender it is not necessary, on the contrary it is an erro- neous course, to offer to pay costs up to the time of tender. The William Syming- ton, 10 P. D. 4 ; 5 Asp. 293 ; overruling The Hickman, The John, and The Thra- cian, infra; The Comte Nesselrood, .No. 1179, infra; and The Scotia, 4 Ir. Jur. N.S. 156. 1159. In future when a tender is made it must either include an offer to pay costs up to the time of tender, or state that the tender is made in satisfaction of the cause of action only, and specify the ground upon which the costs are not tendered, and refer the question of costs to the consideration of the court. The Hick- man, L. E. 3 A. & E. 15; 3 Asp. 298; The Thracian, 41 L. J. Adm. 71 ; L. E. 3 A. & E. 504. 1160. Tender " with such costs, if any, as are due by law." Tender pronounced for with costs up to time of tender, but each party to pay his own costs from that time. The Hickman, supra. 1161. In ordinary cases a tender to be good must be absolute, and must include a tender of costs up to the time of tender, and if conditional and refused, the party making the tender can take no benefit from it. The John, 1 Lushington, 13. 1162. As to payment into and out of court of tenders, see Pt. I. cc. 9 and 10, pp.',1482 and 1485. 1163. A receipt signed simply for the money itself is all that can be legally de- manded by a party making a tender. Any attempt to require a condition of any cha- racter or kind, such as excluding all other demands, has been held frequently by the' courts of common law to be illegal ; and although the Admiralty Court is not bound by such decisions of common law courts, it should adhere to that principle. The Albatross, Jan. 25, 1853. 1164. The acceptance of a tender, ■which is an act of court, is a "recovery in court." The John, 1 Lushington, 13. 1165. A tender to prevent litigation is no admission of the justice of the demand, but merely an offer to escape the incon- venience of litigation. The Frederick, 1 Hagg. 218. 1166. A tender not accepted in due time, held not to bind either the court or the parties tendering. The General Palmer, 2 Hagg. 180. 1 1 67. If when a tender is made it is not accepted, and'the cause proceeds to trial owing to the plaintiffs having gone to sea without having appointed a proper person with adequate authority to accept or refuse the tender, the responsibility for such a course must rest with the plaintiffs/ 1 The * (385) As to the practice in the other divi- sions as to tender, see Wilson's Judicature Acts and Rules, 4th ed. p. 272, and Arch- bold's Practice of the Queen's Bench Division, 14th ed. p. 342, and Chitty's Forms, 12th ed. p. 195. (386) A tender to an authorized agent is a tender to his principal, and a tender to one of several joint creditors is a tender to all. Smith's Mercantile Law, 9th ed. p. 538, and cases there cited. (387) Tenders are stricti juris, and nothing will be presumed in their favour. Shotwell v. Denman, Ooxe, 174. [American.] (388) In order to constitute a good tender it is essential that the offer be unconditional, and that the money or other thing to be paid be actually produced, unless the creditor dis- pense with its production, either by express declaration, or other equivalent act. BrowM v. Gilmore, 8 Greene, 107. [American.] (389) The benefit of a tender is lost by sub- sequent demand and refusal. Ease v. Brown, Kirby, 293. [American.] (390) As to what is a sufficient tender in the American Admiralty Courts, see Dun- lap's Adm. Prac, 2nded. 110. [American J PRACTICE. Pt. II. In the High Court. Cap. 32. 1587 Hopewell, 2 Spinks' Eccl. and Adm. Eep. 252. 1168. The master demanded an exces- sive sum for freight and general average as the condition of delivering the cargo, and in such a manner that it amounted to an announcement that it would he useless to offer any smaller sum. Held, that this excused any tender from the plaintiff, notwithstanding that the evidence showed that he had resolved not to tender the sum rightf oily due, and entitled him to damages for wrongful detention of cargo. The Norway, Br. & L. 409. 1168a. As to a tender in the Admiralty Division not being paid out until after the conclusion of the cause, see Nos. 203 —205, p. 1485. 2. In Collision Actions. 1169. A tender of money by way of compensation in a cause of collision, where the defendant admits his default, need not include the costs of a survey incurred previously, even although the court may consider the survey was neces- sary, and make an order for payment of the expenses attending it. The Scotia, 4 Jur. N.8. 156. [Irish.] 1170. In an action for negligence in running down a ship of the plaintiffs, alleging as special damage the having been condemned in the Admiralty Court to pay a sum of £45 for salvage and the costs of suit there, it appearing that the plaintiff had made a very insufficient tender of £20; held, that he could not recover the costs so incurred, the question in such cases for the jury being, whether the plaintiff had acted as a prudent man would reasonably have done, and if so, the costs might be recovered. Tindall v. Bell, 11 M. & W. 228; 12 L. J. Exch. 161. See Holloway v. Turner, 6 Q. B. 328 ; Loton v. Devereux, 3 B. & Ad. 343. 1171. The High Court of Admiralty, adopting the principle laid down in Tin- dall v. Bell, that it was the duty of the owner of a vessel damaged to do what a prudent man would do were he acting for himself, considered that in many such cases it would be prudent not to make a tender for salvage services rendered, and allowed (overruling the report of the registrar) the costs oif a salvage suit arising from a collision as a proper item in the amount to be recovered in the suit for damage, although no tender had been made in the salvage suit. The Legatus, Swabey, 168; 5 W. E. 154. 1172. An insurance was effected on a cargo of wheat from Odessa to Liverpool. The vessel and cargo were afterwards hypothecated by bottomry bond for repairs rendered necessary during the voyage, and ultimately the vessel was wrecked on the coast of Ireland, and towed into Cork, where the cargo was landed in a damaged state. The salvors having claimed an exorbitant sum for salvage, proceedings were instituted in the Admiralty Court, and under the order of that court the cargo was sold. Held, that it was the duty of the master to save the expense of the proceedings in the Admiralty Court by tendering what was due for salvage ; and that if the cargo was sold in consequence of his failing to do so, or to give bail, it was not a total loss for which the underwriters were liable. Rosetto v. Qurney, 11 C. B. 176; 15 Jur. 1177 ; 20 L. J. C. P. 257. 3. In Salvage Actions.* 1173. To constitute a complete tender out of court it must be made in money or bank notes, and the salvors must, at the time of the tender, be aware of the value of the propertv. The Sovereign, 29 L. J. Adm. 114; 2 L. T. N.S. 669; 6 Jur. N.S. 832 ; 1 Lushington, 85. 1174. When there are separate actions instituted in respect of services rendered to a vessel and her crew by rival salvors, and the defendant is unable to estimate the respective values of the two services, he will be allowed to make a single tender in respect Of the whole services rendered. The Jacob Landstrom, 4 Asp. 58. 1175. The Cinque Ports Commissioners having awarded a sum in a case of sal- vage, the owners of the vessel salved ap- pealed and tendered a smaller sum. On motion by the respondents that the notice of tender might be taken off the file, held, that the appellants were entitled to make the tender, although no tender was made prior to the institution of the appeal. The Annette, L. E. 4 A. & E. 9 ; 42 L. J. * ( 39 1 ) The general practice in salvage cases is to make tenders by formal acts of oourt, which are legal memoranda in the nature of pleas. The Charles, [American.] 1 Newb. Adm. 329. 1588 .PRACTICE. Pt. II. In the High Coiurt. Cap. 32. Adm. 13; 1 Asp. N.S. 577; and see The Caledonia, L. E. 4 A. & E. 11, n. 1176. In the case of a tender in pur- suance of an agreement for services, it is upon the parties who say the offer was made and the agreement accepted that the affirmative lies, and they must prove it. The William, 9 Jur. 631. 1177. In a salvage cause where salvage services have been rendered and certain damages incurred (by the salving vessel rendering assistance), a tender to stop the action, and to entitle the party making it to all the benefits of a tender in court, must include all the damages which may have been sustained. The Ocean, 1 W. Eob. 334. 1178. In a cause of salvage for services rendered in the United Kingdom, a tender under £200 "with such costs (if any) as maybe due by law," for the services ren- dered, was accepted. Held, that any obj ec- tion as to the insufficiency of the tender in respect of the costs was answered by the acceptance. The John, 1 Lushington, 11. 1 1 79.. In a cause of salvage tender of £40 "with costs up to time of tender" was refused. The court overruled the tender, and awarded £100, but refused •to certify for costs. Held, that in conse- quence thereof, and notwithstanding the form of tender, the plaintiff was not en- titled even to costs up to the time of tender. The Comte Nessplrood, 1 Lush. 454 ; 6 L. T. N.S. 57. 1180. The owners alleged the value of the ship to be £2,000, and made a tender. The salvors took out a commission of ap- praisement, under which the ship was valued at £2,800. Held, that it does not therefore follow that the tender must ex necessitate be insufficient, for the question is not what the owners deemed adequate, but what the court thinks adequate com- pensation. The Batavier, 1 Spinks' Eccl. ,&Adm. Eep. 171. 1181. A tender of remuneration is an admission of services performed and to be rewarded. The Porcupine, 1 Hagg. 378; The Portia, 9 Jur. 167; The William Ward, 8 Ir. Jur. 336. 1182. In a salvage suit the owners paid into the registry and tendered £50. The tender was pronounced for, and the sal- Yors were condemned in the sum of £50 nomine expensarum. The salvors being resident out of the jurisdiction, applica- tion by the owners for payment out to them on account of costs of the £50 ten- dered, granted. The Clifton, 3 Hagg. 124; The Johannes, 6 Notes of Oases, 290; Bore v. , 1 Ir. Jur. Exch. 271. 1183. "When a tender has been accepted by both the plaintiffs and interveners whose claims are adverse, the court will allow issue to be joined between them upon their respective allegations as to the apportionment of the amount. The Con- chita, 3 Ir. Jur. 408. 1184. In a cause of salvage a tender of £534 was made before action, and re- fused. After action a tender of £275 only was made, on the ground that the salvors, by their improper conduct sub- sequently to the service in causing a de- tention of the vessel, had occasioned a loss of £260 to the owners. Held, that assuming the truth of such misconduct, no such deduction from salvage could be made. The Hopewell, 2 Spinks' Eccl. & Adm. Eep. 249. 1185. Where a tender was refused, a Vice-Admiralty Court awarded less than the amount tendered, on the ground that the master and crew of the salving vessel had misconducted themselves in rendering the salvage services. The Scindia, 2 Asp. (Vice-Adm. Court), 232. See also Nos. .1170—1172, supra. 4. In Wages Actions. 1186. Motion by foreign seamen to take out in a wages cause the amount tendered, and proceed for wages ultra, rejected. The Annie Childs, 1 Lushing- ton, 509. 1187. The Mobile arrived at Port Philip, where some of her crew deserted. The master gave promissory notes for £40 each, besides their wages, to the remainder of the crew to work the ship so short-handed to Bombay. On the ship's arrival at Liverpool, the owners offered the sailors the amount of their wages according to the ship's articles, on condition of their signing a statutory release in full, and giving up the pro- missory notes. Some of the seamen re- fused to do this, and brought a suit for wages in the Court of Admiralty for their wages, which were then paid. Held, that such a conditional tender was in- sufficient, and made by the owners with a view of availing themselves of the formal words of the statute for the pur-, pose of eluding the claim of the sailors, which had since been decided in their favour in the Queen's Bench, and that the owners were liable for the whole costs incurred in the Admiralty Court. PRACTICE. Pt. II. In the High Court. Cap. 33. 1589 The Mobile, Swabey, 256; 3 Jur. N.8. 893. 1188. In a suit for -wages, the amount of wages, &c, was allowed to be paid into the registry, with an undertaking to pay such costs as might be decreed, the liability for costs being the question at issue between the parties. The Margaret, 3 Hagg. 239. 5. Costs. 1189. See previous sections passim, and tit. Costs, c. 16, pp. 354 — 358, and same title and chapter in Addenda. 33. Preliminary Acts. 1. Generally. 1190. In actions in any division for damage by collision between vessels, un- less the court or a judge shall otherwise order, the solicitor for the plaintiff shall, within seven days after the commencement of the action, and the solicitor for the de- fendant shall within seven days after appearance, and before any pleading is delivered, file with the registrar, master, or other proper officer, as the case may be, a document to be called a preliminary act, which shall be sealed up and shall not be opened until ordered by the court or a judge, and which shall contain a statement of the following particulars : — (a) The names of the vessels which came into col- lision and the names of their masters ; (b) the time of the collision ; (c) the place of the collision; (d) the direction and force of the wind ; (e) the state of the weather ; (f ) the state and force of the tide ; (g) the course and speed of the vessel when the other was first seen ; (h) the lights, if any, carried by her ; (i) the distance and bear- ing of the other vessel when first seen ; (k) the lights, if any, of the other vessel which were first seen ; (1) whether any lights of the other vessel, other than those first seen, came into view before the col- lision; (m) what measures were taken, and when, to avoid the collision; (n) the parts of each vessel which first came into con- tact. Ord. XIX. r. 28, No. 224. 1 1 90s. The court or a judge may order the preliminary act to be opened and the evidence to be taken thereon without its being necessary to deliver any pleadings ; but in such case, if either party intends to rely on the defence of compulsory pilotage, he may do so, and shall give notice thereof in writing to the other party, within two days from the opening of the preliminary act. Ibid. 1191. In an action for loss of life by collision between vessels, preliminary acts must be filed. Webster v. M. S. Sf L. Rail- way Co., 5 Asp. 256, n. 1192. In an action of damage to cargo brought against the vessel carrying the cargo for damage sustained through a col- lision between such vessel and another vessel the parties are not bound to file preliminary acts. The John Boyne, 3 Asp. N.8. 341 ; 36 L. T. 297 ; 25 W. K. 756. 1193. Preliminary acts were instituted to get a statement recenti facto of the cir- cumstances from the parties, and to pre- vent the defendant from shaping his case to meet the case put forward by the plaintiff. Prior to the Judicature Acts, neither party was allowed to depart from the case set up in his preliminary act. The Vortigem, Swabey, 518; 1 L. T. N.S. 507 ; H.M.8. Inflexible, Swabey, 33. 1194. The court would never, prior to the Judicature Acts, allow a party to con- tradict his own preliminary act at the hearing. The Night Watch, 16th July, 1863; The Vortigem, Swabey, 518; 1 L. T. N.S. 507. 1195. Whatever might be the evidence on either side as to the weather, neither party would be allowed to depart from the statement thereon in his preliminary act. The Great Eastern, February 4, 1864. 1196. In a cause of damage by collision, when the case is to be heard on vied voce evidence only, the preliminary acts are to be exchanged before the evidence is taken. The Ruby Queen, 1 Lushington, 266. 1 197. In a cause of damage by collision when, after petition and answer filed, the witnesses for the plaintiff are, upon special application, examined in open court, the court will order the preliminary acts to be exchanged before the witnesses are ex- amined. The Two Friends, 1 Lushington, 552. 1198. Vice - Admiralty Courts should use the form of preliminary acts in use in the Admiralty Division of the High Court of Justice. The Norma, 3 Asp. N.S. 272 ; 35 L. T. 418. 2. Amendment.* 1199. An application to amend a mis- fake in a preliminary act must be made immediately upon discovery, and must be * (392) The object of the preliminary act is to commit the parties to statements of the facts when they are fresh in their recollec- tion. At the hearing of a cause of damage 1590 PRACTICE. Pt. II. In the High Court. Cap. 34. supported by affidavit. The Vortigern, Swabey, 518 ; 1L.T. N.S. 507. 1200. Application for leave to amend a mistake in a preliminary act refused, though such application was made before the hearing, and was supported by affi- davit. The Miranda, 7 P. D. 185; 51 L. J. P. D. 56 ; 4 Asp. 595. 1200a. A similar application made at the hearing refused. The Frankland, L. E. 3 A. & E. 511 ; 41 L. J. Adm, 3 ; 25 L. T. 889 ; 20 "W. E. 592. 3. Evidence. See tit. Evidence, p. 453. 34. Pleadings. 1 . Generally.* 1201. Every pleading shall contain, and contain only, a statement in a sum- mary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be ex- pressed in figures and not in words. See Ord. XIX. r. 4, No. 200. 1202. The forms in Appendices C, D. and E., when applicable, and, where they are not applicable, forms of the like character, as near as may be, shall be used for all pleadings, and where such forms are applicable and sufficient any longer forms shall be deemed prolix, and the costs occasioned by such prolixity shall be disallowed to or borne by the party so using the same, as the case may be. Ibid. r. 5, No. 201. 1203. The forms of pleading, under Ord. XIX. r. 5, No. 201, are not under all circumstances to be rigidly complied with, but are rather to be taken as the class of pleading it is desired to intro- duce. The Ms, 8 P. D. 227; 5 Asp. 155. 1204. In all cases in which the party pleading relies on any misrepresentation} fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary be- yond such as are exemplified in the forms aforesaid (see No. 1202, supra), parti- culars (with dates and items if necessary) shall be stated in the pleading ; provided that, if the particulars be of debt, ex- penses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already de- livered or to be delivered with the plead- ing. Ord. XIX. r. 6, No. 202. 1205. In every case in which the cause of action is a stated or settled account, the same shall be alleged with parti- culars, but in every case in which a state- ment of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings. Ord. XX. r. 8, No. 232. 1206. Every pleading shall be delivered between parties, and shall be marked on the face with the date of the day on which it is delivered, the reference to the letter and number of the action, the division to which the judge (if any) to whom the action is assigned belongs, the title of the action, and the description of the pleading, and shall be indorsed with the name and place of business of the the court refused to allow a material aver- ment in the preliminary act to be amended, but admitted before the evidence was given a corresponding alteration in the answer. The Frankland, 41 L. J. N.S. Adm. 3; L. E. 3 A. & E. 511 ; 1 Asp. N.S. 207. * (393) As to the Rules and Orders of 1883 as to pleading, and the cases thereon in the other divisions, see Wilson's Judicature Acts and Eules, 4th ed. pp. 247 — 271 ; and Arch- bold's Practice (14th ed. by Chitty), vol. 1, pp. 278 et seq. (394) The rules of pleading in Admiralty are simple and free from technical require- ments. West v. Steamer Uncle Sam, 1 McAll. 0. 0. (Oal.) 505 ; The Aldebaran, Olcott, Adm. 130; The Navarro, Olcott, Adm. 127. [Ame- rican.] (395) In the American Admiralty Courts the libel is the commencement of the pro- ceedings, and is presented before any pro- cess is issued. Dunlap's Adm. Prac. 2nd ed. 193. [American.] (396) As to pleadings in the American Admiralty Courts, see 2 Conkling's Adm. Prac. 2nded. 72, 212 ; 2 Parsons on Maritime Law, pp. 676—683, 718 ; Dunlap's Adm. Prac. 2nd ed.pp. 116—131,179—192. [Amekican.]' (397) For forms of pleadings and process there, see 2 Conkling's Adm. Prac 2nd ed. 478—592; Dunlap's Adm. Prac. : 2nd ed. 405—546 ; Ibid. pp. 488—496, 502, 517-828. [American.] (398) As to pleadings in causes of salvage in the American Admiralty Courts, see Mar- vin on Wreck and Salvage, pp. 46, 70. (399) And for forms of pleadings m suet causes there, see Dunlap's Adm. TiSs: 2nd ed. pp. 529—546. - '^ PRACTICE. Pt. II. In the High Court. Cap. 34. 1591 law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been speci- fically denied (e. g., consideration for a bill of exchange, where the plaintiff sues only on the bill, and not for the conside- ration as a substantive ground of claim). Ibid. r. 25, No. 221. 1214. No technical objection shall be raised to any pleading on the ground of any alleged want of form. Ibid. r. 26, No. 222. 1215. No new assignment shall be ne- cessary or used. But everything which was formerly alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim, or by way of reply. Ord. XXIII. r. 6, No. 281. 1216. Pleadings should be so framed as to assist not only the party in his state- ment of the case, but also the court in in- vestigating the truth between the liti- gants. The Why Not, L. E. 2 A. & E. 265. 1217. In deciding whether the pleading complies with the principle of fairly dis- closing the nature of the case intended to be proved, it must be considered whether the matter charged be or be not within the knowledge of the party charged. The Freedom, L. E. 2 A. & E. 346 ; 38 L. J. Adm. 25. 1218. Where a pleading alleges general carelessness, neglect, default, bad seaman- ship, &c, the court will not go into an in- quiry of so wide a nature, or investigate any alleged neglect not expressly raised by the petition. The General Lee, Ir. E. 3 Eq. 155 ; 3 Asp. 204. [Irish.] 1219. It is not necessary to plead spe- cially any Order in Council made under the provisions of this act. See the M. S. Act Amendment Act, 1862 (c. 63), s. 64. 1220. A pleading in a suit of personal damage, pleading matters of a criminal nature, directed to be reformed by the omission of such matters, as not proper to be introduced in a civil proceeding. The Suckers, 4 C. Eob. 76. 1221. When a party conducts his own case he is bound to adhere, both in the court below as well as in that of appeal, to the established rules of pleading and practice in those courts. Tommeyv. White, 1 CI. &Ein. N.S. 161. 1222. As to petitions to the court and the service thereof, see Ord. LH. rr. 8 16, 17; Nos. 703, 711, 712; Ord. XIX. rr. 13 and 16, Nos. 209, 212 ; Ord. LXI. r. 31, No. 924 ; Ord. LII. rr. 16—19, solicitor and agent, if any, delivering the same, or the name and address of the party delivering the same if he does not act by a solicitor. Ord. XIX. r. 11, No. 207. 1207. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be dis- tinctly specified in his pleading by the plaintiff or defendant (as the case may be) ; and, subject thereto, an averment of the performance or occurrence of all con- ditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading. Ibid. r. 14, No. 210. 1208. No pleading, not being a peti- tion or summons, shall, except by way of amendment, raise any new ground of claim, or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. Ibid. r. 16, No. 212. 1209. Wherever the contents of any document are material, it shall be suffi- cient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material. Ibid. r. 21, No. 217. 1210. Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any per- son, it shall be sufficient to allege the same as a fact without setting out the cir- cumstances from which the same is to be inferred. Ibid. r. 22, No. 218. 1211. Wherever it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, be material. Ibid. r. 23, No. 219. 1212. Whenever any contract or any relation between any persons is to be im- plied from a series of letters or conversa- tions, or otherwise from a number of cir- cumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversa- tions, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative. Ibid. r. 24, No. 220. 1213. Neither party need in any plead- ing allege any matter of fact which the 1592 PRACTICE. *t. II. In the High Court. Cap. 34. Nos. 711—714 ; Nos. 1356—1360, p. 1603 ; and c. 35, p. 1531. 2. Variance from Proofs. 1223. In a cause of collision the rule that a party is only entitled to recover secundum allegata et probata, is sufficiently complied with if the party proves one material allegation of negligence, even if all the others fail — P. 0. The Hochung V. The Lapwing, 5 Asp. 39. 1224. See also for cases before the Judicature Acts and Rules, Nos. 1337 — 1345, p. 1600. 3. Signature by Counsel. 1225. The provision in Ord. XIX. r. 4, No. 200, since repealed, that the signature of counsel should not be necessary, did not import that the signature of counsel was improper. Barnard v. Hardwick, April 8, 1876; Duckett v. Jones, 33 L. T. 777. 4. Statement of Claim.* 1226. The delivery of statements of claim shall be regulated as follows : — Where the writ is specially indorsed under Ord. III. r. 6, No. 16, no further state- ment of claim shall be delivered, but the indorsement on the writ shall be deemed to be the statement of claim. Ord. XX. r. 1, No. 225_, div. (a)'. 1227. Subject to the provisions of Ord. XIII. r. 12, No. 112, as to filing a state- ment of claim when there is no appear- ance, no statement of claim need be de- livered unless the defendant at the time of entering appearance, or within eight days thereafter, gives notice in writing to the plaintiff or his solicitor that he requires a statement of claim to be de- livered. Ibid. div. (b). 1228. If no statement of claim has been delivered and the defendant gives notice requiring the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the court or a judge, deliver it within five weeks from the time of the plaintiff receiving such notice. Ibid. div. (c). 1229. The plaintiff may (except as in div. (a) mentioned) deliver a statement of claim, either with the writ of summons or notice in lieu of writ of summons, or at any time afterwards either before or after appearance, notwithstanding that the de- fendant may have appeared and not re- quired the delivery of a statement of claim : provided that in no case where a defendant has appeared shall a statement [semble of claim) be delivered more than six weeks after the appearance has been entered, unless otherwise ordered by the court or a judge. Ibid. div. (d). 1230. Where the plaintiff delivers a statement of claim without being required to do so, or the defendant unnecessarily requires such statement, the court or a judge may make such order as to the costs occasioned thereby as shall be just, if it appears that the delivery of a state- ment of claim was unnecessary or improper; Ibid. div. (e). 1231. In Admiralty actions in rem the plaintiff shall, within twelve days from the appearance of the defendant, deliver his statement of claim. Ibid. r. 3, No. 227. 1232. Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ. Ibid. r. 4, No. 228. 1233. The statement of claim must in all cases in which it is proposed that the trial should be elsewhere than in Middle- sex, show the proposed place of trial. Ibid. r. 5, No. 229. 1234. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given, as the court or a judge may think just, to the same extent as if it had been asked for. Ibid. r. 6, No. 230. 1235. Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon sepa- rate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. Ibid. r. 7, No. 231. 1236. The plaintiff shall, subject to the provisions of Order XX. (above set forth), and at such time and in such manner as therein prescribed, deliver to the defen- dant a statement of his claim, and of the relief or 1 remedy to which he claims to be entitled. The statements shall be as brief as the nature of the case will admit. See Ord. XIX. r. 2, No. 198. * (400) As to statements of claim, see Wil- Archbold's Practice (14th ed. by Ohitty)/ Son's Jud. Acts and Eules, 4th ed. p. 262 ; vol. 1, pp. 288 et seq. PRACTICE. Pt. II. In the High Court. Cap. 34. 1593 1237. The forms in Appendices C, D. and E. (of statements of claim, statement of defence and replies), when applicable, and where they are not applicable forms of the like character, as near as may be, shall be used for all pleadings, and where such forms are applicable and sufficient any longer forms shall be deemed prolix, and the costs occasioned by such prolixity shall be disallowed to or borne by the party so using the same, as the case may be. Ibid. r. 5, No. 201. 1238. For forms of statement of claim in actions of bottomry, necessaries, re- pairs, and supplies, possession, salvage, collision, see E. S. 0. 1883, App. 0., s. 5, Nos. 3 — 6 ; in actions of damage to cargo, s. 5, Nos. 4 and 5 ; in actions of damage by collision, s. 6, No. 5, and Eoscoe's Admiralty Practice (2nd ed.), App. vi., pp. 472—516. See also No. 1203, p. 1590. 1238a. As to the effect of non-delivery of statement of claim when required, see Ord. XXVII. r. 1, No. 294, and No. 934, p. 1562. 5. Particulars of Demand. See c. 24, p. 1570. 6. Statement of Defence and Counter- claim. (a) Statement of Defence.* 1239. The defendant shall, subject to the provisions of Order XXI. (as to which see infra), and at such time and in such manner as therein prescribed, deliver to the plaintiff his defence, set-off, or counter- claim, if any ; the statements shall be as brief as the nature of the case will ad- mit. See Ord. XIX. r. 2, No. 198. 1240. In actions for a debt or liquidated demand comprised in Ord. III. r. 6, classes (A.) and (B.), a defence in denial must deny such matters of fact, from which the" liability of the defendant is alleged to arise, as are disputed ; e.g., in actions for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed. See Ord. XXI. r. 3, No. 236. 1241. And a mere denial of the debt is inadmissible. Ibid. r. 1, No. 234. 1242. In every counter-claim, or where relief is claimed by the defendant in his defence, he shall state specifically the re- lief he claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given, as the court or a judge thinks fit, to the same extent as if it had been asked for. See Ord. XX. r. 6, No. 230. 1243. Where the defendant relies upon several distinct grounds of defence, set- off or counter-claim, founded upon sepa- rate and distinct facts, they shall be stated, as far as may be, separately and distinctly. Ibid. r. 7, No. 231. 1244. No denial or defence shall be necessary as to damages claimed, or their amount ; but they shall be deemed to be put in issue in all cases, unless expressly admitted. Ord. XXI. r. 4, No. 237. 1245. If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bank- ruptcy or otherwise, or in any represen- tative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically. Ibid. r. 5, No. 238. 1246. "Where a statement of claim is delivered to a defendant he shall deliver his defence within ten days from the de- livery of the statement of claim, or from the time limited for appearance, which- ever shall be last, unless such time is ex- tended by the court or a judge. Ibid. r. 6, No. 239. 1247. A defendant who has appeared in an action, and who has neither received nor required the delivery of a statement of claim, must deliver his defence (if any) at any time within ten days after his ap- pearance, unless such time is extended by the court or a judge. Ibid. r. 7, No. 240. 1248. Where leave has been given to a defendant to defend under Ord. XIV., he shall deliver his defence (if any) within such time as shall be limited by the order giving him leave to defend, or if no time is thereby limited, then within eight days after the order. Ibid. r. 8, No. 241. 1249. In every case in which a party shall plead the general issue, intending to give the special matter in evidence by virtue of an act of parliament, he shall insert in the margin of his pleading the words " by statute," together with the year of the reign in which the act of par- liament on which he relies was passed, and also the chapter and section of such act, and shall specify whether such act is * (401) As to statements of defence and counter-claim, see Wilson's Jud. Acts and Rules, 4th ed. p. 266; Archbold's Practice p. (14th ed. by Chitty), vol. 1, pp. 297 et seq. ; and Chitty's Forms (12th ed.), pp. 143, 166. 5 K 1594 PRACTICE. Pt. II. In the High Court. Cap. 34. public or otherwise; otherwise such, de- fence shall be taken not to hare been pleaded by virtue of any act of parlia- ment. Ord. XXI. r. 19, No. 252. 1250. Nothing in these rules contained shall affect the right of any defendant to plead not guilty by statute. And every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. But if the defendant so plead, he shall not plead any other defence to the same cause of action without the leave of the court or a judge. See Ord. XIX. r. 12, No. 208* 1251. Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisi- tion. Ibid. r. 13, No. 209. 1252. The defendant or plaintiff (as the case may be) must raise by his plead- ing all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or void- able in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, Statute of Limitations, release, payment, performance, facts showing il- legality either by statute or common law, or Statute of Frauds. Ibid. r. 15, No. 211. 1253. It shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim, but he must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Ibid. r. 17, No. 213. 1254. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he re- ceived that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those cir- cumstances. Ibid. r. 19, No. 215. 1255. "When a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, pro- mise, or agreement, whether with re- ference to the Statute of Frauds or other- wise. Ibid. r. 20, No. 216. 1256. Payment into court shall be sig- nified in the defence, and the claim or cause of action in satisfaction of which such payment is made shall be specified therein. Ord. XXII. r. 2, No. 256. 1257. No plea or defence shall be pleaded in abatement. Ord. XXI. r. 20, No. 253. 1258. "Where any ground of defence arises after the defendant has delivered a statement of defence, or after the time limited for his doing so has expired, the defendant may, within eight days after such ground of defence has arisen, or at any subsequent time by leave of the court or a judge, deliver a further defence setting forth the same. Ord. XXIV. r. 2, No. 283. 1259. Any ground of defence which has arisen after action brought, but before the defendant has delivered his statement of defence, and before the time limited for his doing so has expired, may he raised by the defendant in his statement of defence, either alone or together with other grounds of defence. Ibid. r. 1, No. 282. 1260. As to forms of statements of de- fence and counter-claim, and the use thereof, see No. 1237, supra. 1261 . For forms of statement of defence in actions of bottomry, necessaries, re- pairs, or supplies, possession and salvage, see E. S. 0. 1883, App. D., sect. 8, Nob. 3, 4, 5, and 6, and Eoscoe's Admiralty Practice (2nd ed.), pp. 472—516. * (402) The plea of " not guilty " by statute puts in issue not only the defence peculiar to the statute, but also the defence which may be admissible under the general issue at common law. As to the plea of "not guilty " by statute and the acts of par- liament regulating the same, see Charleys New System of Practice and Pleading under the Judicature Acts, 3rd ed. p. 603, and Wilson's Judicature Acts and Eules (4th ed.J, p. 256. PRACTICE. Pt. II. In the High Court. Cap. 34. 1595 1262. For various forms of denial in general defences, see E. S. C. 1883, App. D. ss. 4 and 5. 1262a. As to the effect of non-delivery of statement of defence, see Nos. 934 — 942, p. 1562. (b) Counter-claim. 1263. A defendant in an action may set off, or set up, by way of counter-claim against the claims of the plaintiff, any right of claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross action, so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the court or a judge may, on the application of the plaintiff before trial, if in the opinion of the court or judge such set-off or counter-claim cannot be conveniently dis- posed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof. Ord. XIX. r. 3, No. 199. 1264. Where any defendant seeks to rely upon any grounds as supporting a right of counter-claim, he shall, in his statement of defence, state specifically that he does so by way of counter-claim. Ord. XXI. r. 10, No. 243. 1265. Where a defendant by his de- fence sets up any counter-claim which raises questions between himself and the plaintiff along with any other persons,, he shall add to the title of his defence a further title similar to the title in a state- ment of claim setting forth the names of all^ the persons who, if such counter- claim Were to be enforced by cross action, would be defendants to such cross action, and shall deliver his statement of defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff. Ibid. r. 11, No. 244. 1266. As to the mode of proceeding to bring such other persons before the court, see c. 6, p. 1500, and No. 1284, infra. 1266a. A third party is not allowed to deliver a counter-claim. Street v. Gover, L. E. 2 Q. B. 498 ; 46 L. J. Q. B. 582. 1267. Where a defendant sets up a counter-claim, if the plaintiff or any other person named in manner aforesaid as party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter- claim, but in an independent action, he may at any time before reply apply to the court or a judge for an order that such counter-claim may be excluded, and the court or a judge may, on the hearing of such application, make such order as shall be just. Ibid. r. 15, No. 248. 1268. The set-off must be connected with the original cause of action. Padwick v. Scott, 2 Ch. D. 736 ; 45 L. J. Ch. 350. 1268a. As to a counter-claim in an action for limitation of liability, see The Clutha, 35 L. T. N.S. 36. 1269. For form of notice of counter- claim, see E. 8. C. 1883, App. B. No. 2. See also Nos. 1242, 1243, 1252, 1260, supra, and No. 1404, p. 1607. 7. Reply and subsequent Pleadings.* 1270. The plaintiff shall, subject to the provisions of Ord. XXIII., and at such time and in such manner as therein prescribed, deliver his reply (if any) to such defence, set-off, or counter-claim. The statements shall be as brief as the nature of the case will admit. Ord. XIX. r. 2, No. 198. 1271. As to forms of reply and the use thereof, see No. 1237, p. 1593. 1272. Any person named in a defence as a party to a counter-claim may deliver a reply within the time allowed for a defence. Ord. XXI. r. 14, No. 247. 1272a. No pleading, not a petition or summons, shall, except by way of amend- ment, raise new ground of claim or con- tain any allegation of fact inconsistent with the party's previous pleadings. See Ord. XIX. r. 16, No. 212. 1273. It shall not be sufficient for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter-claim, but he must deal speci- fically with each allegation of fact of which he does not admit the truth except damages. Ibid. r. 17, No. 213. 1274. Subject to the last rule the plain- tiff by his reply may join issue upon the defence, and each party in his pleading (if any) subsequent to reply may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every _ * (403) As to reply and subsequent plead- ings, see Wilson's Judicature Acts and Eules (4th ed.), p. 79; Archbold's Practice (14th ed. by Chitty), vol. 1, pp. 312 et seq.; and Chitty's Forms (12th ed.), p. 163. 5x2 1596 PRACTICE: Pi II. In the High Court. Cap. 34." material allegation of facts in the plead- ing upon which issue is joined, but it may except any fadts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted. See Ord. XIX. r. 18, No. 214. 1275. A plaintiff shall deliver his reply, if any, in Admiralty actions within six days, and in other actions within twenty-one days, after the defence or the last of the defences shall have been de- livered, unless the time shall be extended by the court or a judge. Ord. XXIII. r. 1, No. 276. 1276. No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the court or a judge, and then shall be pleaded only upon such terms as the court or judge shall think fit. Ibid. r. 2, No. 277. 1277. Subject to the last preceding rule, every pleading subsequent to reply shall be delivered within four days after the delivery of the previous pleading, un- less the time shall be extended by the court or a judge. Ibid. r. 3, No. 278. 1278. Where a counter-claim is pleaded, a reply thereto shall be subject to the rules applicable to statements of defence. Ibid. r. 4, No. 279. 1279. As to the insertion in the reply, of matters of new assignment, see No. 1215, p. 1591. 1280! Where any ground of defence to any set-off or counter-claim arises after reply, or after the time limited for de- livering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen, or at any subse- quent time by leave of the court or a judge, deliver a further reply setting forth the same. Ord. XXIV. r. 2, No. 283. 1281. If, after a statement of defence has been delivered, any ground of de- fence arises to any set-off or counter- claim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply. Ibid. r. 1 , No. 282. 1282. In a cause of necessaries a reply leaving it uncertain whether the person in possession of the vessel at the time of the supply was the original mortgagee or the defendant, the transferee of the mortgage, held bad. The Troubadour, L. E. 1 A. &. E. 302 ; 2 Asp. 475. 1283. For forms of reply, see E. S. 0. 1883, App. E. 8. Third Parties. 1284. Action of collision by the owners of the S. against the O, alleging negli- gence on the part of the 0. and her tug, or one of them. The owners of the 0.- served a notice on the owner of the tug, claiming indemnity, and the court ordered that the owner of the tug be bound as between him and the owners of the C, by any decision as to the cause of the col- lision. No issue was directed as between the owners of the 0. and the owner of the tug. At the hearing, the court found that the 0. was alone to blame for the- collision, and that her owners were not entitled to indemnity from the owner of the tug. , Held, by the Court of Appeal, that unless issues are directed between the defendant and a third party the court cannot make a decree deciding questions of liability between them, and therefore- that so much of the decree as declared that the owners of the C. were not entitled to indemnity must be struck out. The Cartsburn, 5 P. D. 35 ; (C. A.) 59 ; 49 L. J. P. D. 14 ; 4 Asp. 202. 9. Joinder of Issue and Close of Pleadings.- 1285. Subject to Ord. XIX. r. 17, No. 213 (as to specific denials in the reply, of grounds alleged in the statement of defence), the plaintiff by his reply may join issue upon the defence, and each party in his pleading (if any), subse- quent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every ma- terial allegation of facts in the pleading upon which issue is joined, but it may except any fact which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted. Ord. XIX. r. 18, No. 214. 1287. No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the court or a judge, and then shall be pleaded only upon such terms as the court or judge shall think fit. Ord.XXIH.r.2,No.277. 1288. As soon as any party ha9 joined issue upon the preceding pleading of the opposite party simply without adding any further or other pleading thereto, or h? 8 made default as mentioned in Ord. XXVII- r. 13, No. 306, the pleadings as between such parties shall be deemed to be closed. Ibid. r. 5, No. 280. 1289. If the plaintiff does not deliver a reply, or any party does not deliver any "subsequent pleading within the period allowed for that purpose, the pleadings, shall be deemed to be closed at the ex- piration of that period, and all the ma- PRACTICE. Pt. II. In the High Couyt. Cap. 34. 1597 terial statements of fact in the pleading last delivered shall be deemed to have beendeniedandputinissue. Ord.XXYII. r. 13, No. 306. 1290. Qucere, is joinder of issue neces- sary where the defendant in an action of salvage has admitted the allegations in the statement of claim, and paid money into court, which, however, has not been received in satisfaction by the plaintiff ? The Maria, 4 Asp. 94. 10. Under Rules and Orders q/"1859. (a) Generally.* 1291. Of the pleadings under the Rules and Orders of Nov. 1859, the present statement of claim was called the " peti- tion," and the statement of defence the " answer." 1292. The Rules and Orders of 1859 are annulled by the Rules and Orders of 1883, App. 0. (No. 22). 1293. Semble, two defences of a totally different nature, i. e." a declinatory plea, and a plea of an absolute bar, should not be pleaded together. Harmer v. Bell {The Bold Buccleugh); 7 Moore, P. 0. 0. 281. 1294. The pleadings in a cause must be so specific as to enable, if necessary, an examiner to elicit in evidence all the facts of the case. The Claus Thomesen, 1 Asp. 327 ; 8 L. T. N.S. 121 ; 9 Jur. N.8. 388; 11 W. R. 538. 1295. In a cause of damage, when the evidence is taken before an examiner of the court, the defence of inevitable acci- dent must, if it is to be relied upon, be distinctly pleaded. The E. Z., 2 Asp. 42 ; 10 L. T. 790. 1296. An allegation of fraud, if relied upon, should be distinctly pleaded. The Emilien Marie, 44 L. J. Adm. 9. 1297. The rule qui ponit fatelur must be rigidly enforced with respect to every averment within the personal knowledge of the party alleging, but must be applied less stringently, and in some instances re- jected, when the party states facts which are not within his personal knowledge, and as to which he has not the means of acquiring accurate information. Greville v. Tylee, 7 Moore, P. 0. 0. 320. (b) Petition. 1298. It is not necessary in a petition to state every fact material to a case. It is sufficient to state such facts as will, if proved, establish the plaintiff's case. The West of England, L. R. 1 A. & E. 308 ; 36 L. J. N.S. 4. 1299. Where, therefore, in a case of collision caused by a vessel drifting and driving down upon another at anchor in the same anchorage, though the relative bearing of the two vessels -previous to the collision was incorrectly pleaded and alleged by the vessel proved to be entitled to redress ; it was held, by the Judicial Committee, that the vessels not being in motion their previous relative bearing when at anchor was not a fact so mate- rial to the issue (i.e., which vessel caused the collision), as to render the actual proof of the damage of no avail, and so entitle the offending party to the benefit of the rule. Semble, in the case of a collision between two vessels originally at anchor, the bearing of one vessel with respect to the other is not such a material fact as necessary to be stated upon the issue raised between the parties. The Alice and The Rosita, 5 Moore, P. C. C. N.S. 300 ; L. R. 2 P. C. 214 ; 38 L. J. Adm. 20 ; 3 • Asp. 193 ; 19 L. T. 753 ; 17 W. R. 209. 1300. If a plaintiff in a collision suit intends to rely upon a particular act of negligence by the defendant he is bound specifically to allege that act in his plead- ings. The Marpesia, 8 Moore, P. C. C. N.S. 468. 1301. It is not sufficient that the act may be included generally in an allega- tion in the pleadings which does not clearly state such particular act, as it is likely to mislead the defendant, and pre- vent his being prepared to meet that par- ticular case. Ibid. (c) Answer. 1302. A defendant in a cause of colli- sion must not rely in his answer upon a * (404) The rules of pleading introduced by the Jud. Acts and Rules are substantially framed upon the plan of the rules of pleading in force in the Admiralty Court at the time of the passing of those acts, i. e. under the Eules and Orders of Nov. 1859. (405) For the Eules and Orders of Nov. 1859, and the forms of petition, answer, reply and conclusion therein prescrihed, see Prit- chard's Adm. Dig. 2nd ed. App. p. cclv. (406) As to the construction of the Kules and Orders of Nov. 1859, see The Claus Tho- mesen, 8 L. T. N.S. 121 ; 32 L. J. Adm. 106 ; 9 Jur. N.S. 388; The Don Francisco, 31 L.J. Adm. 14; 5 L. T. N.S. 460. 1598 PRACTICE. Pt. II. In the High Court. Cap. 34. simple negative, but must state the prin- cipal circumstances relating to the colli- sion. The Why Not, L. E. 2 A. & E. 265 ; 38 L. J. Adm. 26 ; 3 Asp. 135. 1303. In a salvage suit instituted by A. against the vessel B., A. in his peti- tion alleged that he rescued the B. (which had been abandoned by her crew) from the hands of C, who was stripping the vessel. A salvage suit having been instituted by C. against the B., the owners of the B. pleaded that for the purposes of their answer they adopted, being ignorant of the actual facts, the allega- tions in A.'s petition. On motion by 0. the court disallowed this plea. The Kathleen, L. E. 4 A. & E. 269, 272, n. ; 2 Asp. N.S. 267. 1304. In a cause of damage by colli- sion a general denial of the statements in the petition was pleaded in answer, and also a special defence that the damage complained of was the same as had already been adjudicated upon in a court of law, and that judgment thereon had been obtained and satisfied. The judge of the Admiralty Court dismissed »the action, on the ground that the damage proceeded for was occasioned by acts done by a third party on his own respon- sibility, and not as agent for the owners, the defendants, and he ordered each party to pay his own costs, on the ground that this defence had not been sufficiently raised on the pleadings, and he refused to go into the special defence. Held, by the Privy Council, that the defendants were entitled to have the judgment of the court on the special defence pleaded by them, as it was at least material in respect of costs. The Orient, L. B. 3 P. C. 696 ; 40 L. J. Adm. P. C. 29 ; 39 L. J. Adm. 8 ; 3 Asp. 321 ; 1 Asp. N.S. P. C. 108 ; 8 Moore, P. O. N.S. 74. 1305. If an averment in the pleadings is not denied in the opposite pleadings, but a conclusion is drawn from that aver- ment, it must be taken that the truth of the averment is admitted. The Peerless, 13 Moore, P. C. C. 488; 1 Lushington, 103 ; 30 L. J. Adm. 89; 3 L. T. N.S. 126. 1306. P., in his pleading, quoted cer- tain acts and regulations of an Indian governor, and pleaded that by virtue of the same he was exempt from certain responsibility. J., the opponent, pleaded that P. was not, by virtue of the said acts and regulations, exempt. Held, that the acts and regulations were admitted by the pleadings, and P. was not bound to prove them. Ibid. (d) Subsequent Pleadings. 1307. The plaintiff should in his first pleading set up his whole case, so far as the facts are within his knowledge. If further facts subsequently come to his knowledge, the court will permit him to plead them, giving the other party oppor- tunity to answer. The Bothnia, 1 Lush- ington, 53 ; 29 L. J. Adm. 65 ; 2 L. T. N.S. 160 ; The Hebe, 2 W. Eob. 146. 1308. Plaintiff's petition alleged that his vessel, while at Unchor, was run down, by the defendant's vessel. The petition did not assign any particular cause of blame. The defendant pleaded that, from the violence of the tempest and sea, his anchors were unable to hold, and that the collision was solely caused thereby (a plea of inevitable accident). Held, that the plaintiffs were entitled in their reply to allege that the collision was occasioned solely by the negligence of those on board the defendant's vessel, and the default of her ground tackle. The Bothnia, supra. 1309. In a cause of necessaries a reply leaving it uncertain whether the person in possession of the vessel at the time of the supply was the original mortgagee, or the defendant, the transferee of the mortgage, held bad. The Troubadour, L. E. 1 A. & E. 302 ; 2 Asp. 475. 1310. The whole case of either party must be stated in his first pleading, nothing must be kept back. Eeply, pleading further facts, rejected on "the ground that they should have been pleaded in the petition. The Henrietta, 19th April, 1860. 1311. See also The Anne and Jane, % W. Eob. 104; The Test, 2 Hagg. 312; The Aurora, 1 "W. Eob. 325. (e) Double Pleading.* 1312. Semble, in causes of damage by collision, inevitable accident and fault on board the plaintiff's vessel cannot both be pleaded. The Daphne, No. 1343, 27th November, 1863. 1313. It is competent to the defendant to plead that his vessel and crew are not to blame at all for the collision, that if * (407) Double pleading is not allowed in the Amerioan Admiralty Courts. See Dim- lap's American Adm. Prac. (2nd ed.) 182, PRACTICE. Pt. II. In the High Court. Cap. 34. 1599 blame is attributable to any one on board bis vessel it is to tbe licensed pilot in charge, and tbat the plaintiff's vessel and crew are to blame for the collision. The Canadian, 1 W. Eob. 345 ; The Batavier, 10 Jur. 20 ; 4 Notes of Cases, 356 ; The Admiral Boxer, Swabey, 193; The Argo, ibid. 465 ; The George, 4 Notes of Cases, 161. 1314. In a cause of collision if the owners of the damaging vessel intend to attribute the cause of damage to the wilful misconduct of their master, the facts of the case should be admitted, and the wilful acts of the master set forth. The Seine, 5 Jur. N.8. 299. (f ) Charges not pleaded.* 1315. In causes of collision it is often impossible to state in the first instance all the important facts bearing on the collision. Sometimes the collision takes place in darkness, and it cannot be known on board one ship what orders were given on board the other, what look-out was kept, &c. If these are discovered subse- quently to pleading no wrong is done in admitting evidence of them if the other party has opportunity of contradicting them. The Schwalbe, Swabey, 523. 1316. When extra-articulate evidence is pertinent to the issue, and especially when it forms part of the res gestae, the court is most reluctant to exclude it. On the other hand, if the opposite party has been surprised, and desires an oppor- tunity of meeting the extra-articulate evidence, the court will give leave to , counter-plead, and produce evidence on the counter-piea. Ibid. 1317. Evidence pertinent to the issue, objected to as extra-articulate, admitted, the other party having leave to counter- plead and produce evidence in reply. Ibid. 1318. A party cannot, at the hearing, avail himself of a rule of seamanship in order to impute misconduct to the other party in not acting up to the rule, unless such misconduct is charged in the plead- ings. The Ebenezer, 2 W. Eob. 210; 7 Jur. 1117. 1319. Semble, a defence in law not raised in the pleadings, cannot be relied on at the hearing. The Seine, Swabey, 411. 1320. When a defence is so framed that, although it puts in issue all the facts alleged on the part of the claimants, it gives no notice, or insufficient notice, of any particular point to which the evi- dence should be especially directed, the court, in judging of the effect of such evidence, will have regard to the degree of notice so given by the defendants. The Minnehaha, 9 W. E. 925. 1321. The practice of the court requires that all the essential particulars of the defence should be set forth in the plead- ings in the first instance ; and semble, the court will not sanction the attempt to sup- ply such omissions in the plea by import- ing them into the proofs. The Virgil, 2 W. Eob. 204 ; The Speed, ibid. 227 ; The Lady Anne, 15 Jur. 18; 5 Notes of Cases, 36 ; The Anne and Jane, 2 W. Eob. 104 ; The Hebe, ibid. 146. 1322. The court will not put a question to the Trinity masters as to a fact not pleaded. The Ebenezer, 2 W. Eob. 209 ; The Speed, ibid. 227. 1323. The court will reject evidence extraneous to the pleadings. The Ebenezer, 7 Jur. 1117. 1324. It is a matter of right to either party to object to extra-articulate evi- dence either at the hearing or previously. The Neptunus, Swabey, 297; 30 L. T. 219. 1325. Application to strike out extra- articulate evidence on an allegation in a collision cause before the papers were printed and put in the hands of the Trinity masters, granted. Ibid. 1326. If the Trinity masters seemed to the court to form their opinion from parts of the evidence which were inadmissible, the court would not adopt their advice, but proceed on that only which was clear evidence. The Action, 1 Spinks' Eccl. and Adm. Eep. 178. * (408) The rules of pleading in Admiralty must be strictly complied with, and the evi- dence confined to the points put in issue by the pleadings. McKinlay v. Morrish, 21 How. U. 8. 343. [Amerioait.] (409) The case as presented by the plead- ings is the only one upon which the court can be called upon to decide. Soule v. Bodocanachi, The Oregon, 1 Newb. Adm. 504. [American.] (410) A decree must be in consonance with the pleadings in the cause, and evidence out- side the allegations made by either party cannot be regarded in support of his charge or defence. The Rhode Island, Olcott, Adm. 505 ; Davis v. Leslie, 1 Abb. Adm. 123. [American.] 1600 PRACTICE. Pt. II. In the High Court. Cap. 34. 1327. Appeal remitted to the court be- low with, leave to both, parties to plead further, and give further evidence, the Trinity masters having given advice to the judge on a point not mentioned in the pleadings. The Lady Anne, 1 5 Jur. 18. 1328. A question of set-off not having been properly raised, or discussed in the Admiralty Court, the Judicial Committee, sitting as a court of appeal, refused to entertain it. The Christina, 6 Moore, P. C. C. 372. 1 329. Any particular ground of defence in opposition to a bottomry bond should be distinctly pleaded, and not raised for the first time at the hearing. The Bona- parte, 8 Moore, P. C. C. 475; 17 Jur. 285; 3 W. Eob. 298 ; 7 Notes of Cases, Supp. 55. 1330. In a cause of damage, held that the defendant's vessel was to blame for not having ported her helm and eased off her main-sheet. No such charge was contained in the plaintiff's pleadings, though a general charge of mismanage- ment was pleaded besides other charges. The court, but with doubt, pronounced for the damage. The Lady Ann, 1 Notes of Cases, 370. 1331. In a cause of damage those on board the vessel proceeded against were found to have been guilty of negligence, and therefore to blame for the collision. Objection then taken that such negli- gence was not the negligence of the de- fendants, the owners, or their servants, but of certain independent contractors to whom the vessel had been entrusted ; held to have been urged too late after an absolute appearance and pleadings not raising this objection. The Ruby Queen, 1 Lushington, 266. 1332. Defence that navigating the wrong side of the river was a wilful act of the master for which the owners were not liable, overruled because not pleaded. The Seine, Swabey, 413. 1333. In a cause of wages the court refused to regard proofs of the plaintiff's general incapacity, as that charge had not been pleaded. The Exeter, 2 0. Eob. 261. 1334. In a suit for wages, the de- fendant having rested his defence for- maliter on the ground of an asserted con- sent of the mariner, which was held not to bar him, the court will, nevertheless, take into consideration matters forming a just ground of defence, but which the defendant may have improperly over- looked. The Elizabeth, 2 Dodson, 406. 1335. In a cause of wages the owners pleaded a forfeiture, under the statute, of the wages, on the ground of desertion, but did not plead a charge of temporary desertion. The evidence established the latter, but not the former charge. The court pronounced for the full wages. The Two Sisters, 2 W. Eob. 125, 146. 1336. As to what evidence is or is not extra-articulate, see The Harvey, 2 Hagg. 83 ; The Towan, 8 Jur. 222 ; Evans v. Evans, 1 Hagg. Cons. 96, n. (Ecel.) 1336a. As to what charges should he pleaded in actions of bottomry, see s. 22, p. 1605, and in actions of collision, see s. 23, p. 1606. (g) Variance from Proofs.* 1337. A party complaining of an in- jury and suing for redress, can recover only secundum allegata et probata* The Ann and Magnet, 1 Lushington, 55; 13 Moore, P. C. C. 198 ; 3 L. T. N.S. 128; 8 W. E. 567 ; The Despatch, 1 Lushing- ton, 98; 14 Moore, P. C. C. 83; The North American, Swabey, 358 ; 12 Moore, P. C. C. 331 ; The Wakefield, 5 Jur. 69 [Irish]; The Ebenezer, 2 W. Eob. 209; 7 Jur. 1117. 1338. There is no hardship or injus- tice in adhering strictly to this rule against the complainant, for he knows * (411) Libellants must recover on the allegations in their libel ; respondents must rely exclusively on the grounds they have selected in their answer. Campbell v. Steamer Uncle Sam, 1 McAll. C. 0. (Cal.) 77. [Ame- BIOAS.] (412) The defence in the answer in a cause of collision between a schooner and a steam- boat rested on faults imputed to the schooner in holding her course across the bows of the steamer, under circumstances in which it was her duty to have gone about, and the defence set up by the proofs rested upon faults com- mitted on the part of the schooner in an at- tempt to come about abruptly, and falling ol or drifting against the steamer in the attempt. Held, that the latter defence was a deviation from the answer, and that, under the plead- ings, the claimants were not entitled to the benefit of it. The Washington Irving, 1 Abb. Adm. 336. [American.] (413) As to the practice in American Ad- miralty Courts in cases of variance of the evidence from the pleadings,, see Dunlaps Adm. Prac. (2nd ed.) 246. [American.] PRACTICE. Pt. II. In the High. Court. Cap. 34, 1601 the nature of the wrong for which he seeks a remedy, and can easily state it with precision and accuracy. But great inconvenience would follow to the opposite party unless this strictness was required, because he might constantly be exposed to the disadvantage of having prepared himself to meet one state of facts, and of finding himself suddenly and unexpect- edly confronted by a totally different one. The great object of all courts where trials of fact take place ought to be to bring the parties to a distinct agreement as to what is in contest between them, and this object would be entirely frustrated if it were competent to a party to place his right to redress on one ground, and then to abandon it at the trial for another, although the latter ground would origi- nally have given him a right to recover against the other party. The Ann and Magnet, 13 Moore, P. C. 0. 206; 1 Lush- ington, 55. 1339. The rule that a party can only recover secundum allegata et probata ap- plies only to cases where the averments alleged in the pleadings are material to the issue raised. The Alice and The Rosita, L. E. 2 P. 0. 214 ; 5 Moore, P. 0. C. N.8. 300 ; 38 L. J. Adm. 20 ; 3 Asp. 193._ 1340. in a case of collision, by drifting, between two vessels originally at anchor, the bearing of the one vessel when at anchor with respect to the other is not such a material fact as is necessary to be stated upon the issue raised between the parties, and a variance therefore in the pleadings from the proof is immaterial. Ibid. 1341. In a cause of collision the plain- tiff alleged, first, that the defendant im- properly starboarded ; and secondly, if he did not starboard, at all events he neg- lected to port as he ought to have done. Held, the court might, on the evidence, well find for the plaintiff without decid- ing whether the defendant had star- boarded or not, for the first charge, if proved, necessarily involved the second, and if not proved, the second was suffi- cient to sustain the judgment. There- fore the objection of want of certainty in pleading was untenable. The Amalia and Marie de Brabant, 2 Asp. 58; 10 L. T. N.S. 826. 1342. The rule as to proof secundum allegata does not apply so stringently to the defendant. The East Lothian, 14 Moore, P. C. C. 177; 1 Lushington, 241 ; 1 Asp. 76 ; 4 L. T. N.S. 487. 1343. An erroneous allegation of the mode in which the injury occurred may, as an answer, fail to be proved ; but the plaintiff is, nevertheless, equally bound to rely on his own case, and not on the failure of his adversary. Ibid. 1344. As a general rule, if a plaintiff's proof is at variance with his pleadings his petition will be dismissed with costs, but if the defendant has also pleaded in defence matter at variance with the facts proved the case will be dismissed, each party being left to bear his own costs. The Lioness, 10 Jur. N.S. 20. [Irish.] 1345. In a cause of damage the defen- dant in his pleadings charged that the collision was the fault of the plaintiff's vessel, and at the hearing argued the case as one of inevitable accident. Semble, the court would not have permitted this variation in the defence but for certain expressions in the defendant's pleadings from which an averment of inevitable accident might be inferred. The Eng- land, 5 Notes of Cases, 171, 174. (h) Short of Proofs* 1346. In a cause of damage by colli- sion the defendants pleaded in defence compulsory pilotage, and the plaintiffs in reply generally denied this allegation. At the hearing evidence was offered by the plaintiffs to show that the defendants' vessel was improperly trimmed, that the master was responsible for this, that he had not informed the pilot of the fact, and that this improper trimming, coupled with the fact that the pilot was ignorant of it, contributed to the accident. Held, by the Court of Appeal in Chancery (re- versing the decision of the Admiralty Court), that evidence on these points was * (414) As to what evidence was or was not extra-articulate or irrelevant to the plead- ings according to the former practice of the court, and as to striking out or admitting the same, see The Neptunus, Swabey, 295 ; 30 L.T. 219; The Schwalbe, Swabey, 521, 523; The Speed, 7 Jur. 1068 ; 2 "WV Rob. 230 ; The Adeem, 1 Spinks' Eccl. & Adm. Eep. 178 ; The Harvey, 2 Hagg. 83 ; The Towan, 8 Jur. 222. (415) For the principles and practice as to evidence in the American Admiralty Courts, see Dunlap's Adm. Prac. (2nd ed.) p. 207; 2 Oonkling'sAdm. Prac. (2nded.)p. 270; and 2 Parsons on Maritime Law, p. 719. [Ame- KIOAU.] 1602 PRACTICE. Pt. II. In the High Court. Cap. 34. admissible, though they were not alleged in the petition or the reply. The Meteor, Ir. E. 9 Eq. 567. [Irish.] 11. Rules prior to 1859.* 12. Admissions by — . (a) Generally. 1347. Any party to a cause or matter may give notiee, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. Ord. XXXH. r. 1, No. 371. (b) Confession of Defence. 1348. "Whenever any defendant, in his statement of defence, or in any further statement of defence as in the last rule mentioned, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence (which con- fession may be in the Form No. 5 in Appendix B., with such variations as circumstances may require), and may thereupon sign judgment for his costs up to the time of the pleading of such de- fence, unless the court or a judge shall either before or after the delivery of such confession, otherwise order. Ord. XXIV r. 3, No. 284. 13. In Proceedings by Default. (a) Generally. 1349. In all actions not by the rules of this Order otherwise specially provided for, in case the party served with the writ, or in Admiralty actions in rem, the defendant does not appear" within the time limited for appearance, upon the filing by the plaintiff of a proper affi- davit of service, and, if the writ is not specially indorsed under Order HE. r. 6, of a statement of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order XT. Ord. XIH. r. 12, No. 112. (b) Filing. See c. 12, p. 1531, 14. Proceedings in lieu of Demurrer.] 1350. No demurrer shall be allowed. Ord. XXV. r. 1, No. 285. * (416) As to the pleadings and rules of pleading generally, prior to the rules and orders of Nov. 1859, see The Apollo, 1 Hagg. 315 ; The Maria, 5 0. Bob. 148 ; The Minerva, 1 W. Rob. 169 ; The Actceon, 1 Spinks' Eccl. 6 Adm. Eep. 176; The Baldur, 16 Jur. 802 ; The Fame, 7 Notes of Cases, 55 ; 13 Jur. 546 ; The Bothnia, 1 Lushington, 53; 29 L. J. Adm. 65; 2 L. T. N.S. 160; The Virgil, 2 W. Eob. 204 ; The Speed, ibid. 227 ; The Lady Anne, 15 Jur. 18 ; 5 Notes of Cases 364 ; The Anne and Jane, 2 W. Eob. 104 The Hebe, ibid. 146; The Ebeneser, ibid. 209 7 Jur. 1117; The Bouen, 6 L. T. N.S. 508 Pritchard's Adm. Dig. (2nd ed.) p. 559; 2 Brown's Civil and Adm. Law (2nd ed.), p. 413 ; Life of Sir L. Jenkins, vol. i. p. 82. (417) As to pleadings of set-off or counter- claim, see The Don Francisco, 5 L. T. N.S. 460 ; 1 Lushington, 468 ; 1 Asp. 169. (418) As to pleadings by act on petition, see The Ville de varsovie, 2 Dodson, 184 ; The Minerva, 1 W. Eob. 160; The Anne and Jane, 2 Ibid. 98 ; The Hebe, ibid. 146 ; 10 Jur. 231; 4 Notes of Cases, 361 ; The Actceon, 1 Spinks' Eccl. and Adm. Eep. 176; Orders of Court of March 18, 1835 ; The Towan, 8 Jur. 221 ; The Gosfabrich, 31 L. T. 345 ; The Ebenezer, 2W. Eob. 209; 7 Jur. 1117; The Glasgow Packet, 2 W. Eob. 308 ; 3 Notes of Oases, 108 ; 8 Jur. 675 ; The Armadillo, 1 W. Eob. 257 ; The Speed, 2 ibid. 230 ; 7 Jur. 1068 ; The Carlota, 4 Jur. 237 [Ieish]; TheLiffey, ibid. N.S. 232 [Ieish] ; The Justyn, 11 W. E. 44 ; and Pritchard's Adm. Dig. (2nd ed.), p. 560. (419) As to pleadings to the character, or in impeachment of .the testimony, of wit- nesses, see The Apollo, 5 0. Eob. 286 ; The Georgiana, 1 Dodson, 399 ; The Oentwrim, 1 Hagg. 162, n. ; The Volcano, 2 W. Eob. 344; 3 Notes of Cases, 211 ; The Schwalbe, Swabey, 461, 523; The Lochlibo, 14 Jur. 792; The Thomas Fielden, 32 L. J. N.S. Adm. 63 ; and Pritchard's Adm. Dig. 2nd ed. vol. ii. p. 575. (420) As to pleading in exception to and substantiation of witnesses in the American Admiralty Courts, see Dunlap's Adm. Prac. (2nd ed.), 205. [American.] t (421) As to the practice on this head in the Queen's Bench Division, see Archbold's Practice (14th ed.), vol. 1, p. 324; and Chitty's Forms (12th ed.), p. 178 ; and as to delivery prior thereto of points for argument, see The Anna, 1 P. D. 253 ; 45 L. J. Adm. 98. (421a) By the old practice in the Court of Admiralty, pleadings were required to he ad- mitted, and questions of demurrer were raised on their admission. (422) For cases under the old practice be- fore 1859 in regard to the admission, and opposition to the admission of pleadings, see The Empress, 1 Dodson, 369 ; The Bovm,l Lush. 510 ; The Anne arid Jane, 2 W. Bob. 98; The Hebe, ibid. 146; The N. B.Qosfa- PRACTICE. Pt. II. In the High Court. Cap. 34. 1603 1351. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the court or a judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial. Ibid. r. 2, No. 286 ; and see The Horloch, 2 P. D. 243 ; 36 L. T. N.S. 622 ; The Sir Charles Napier, 5 P. D. 73 ; 49 L. J. Adm. 23. 1352. If, in the opinion of the court or a judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or judge may there- upon dismiss the action or make such other order therein as may be just. Ord. XXV. r. 3, No. 287. 1353. The court or a judge may oltfer any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case, or in case of the action or de- fence being shown by the pleadings to be frivolous or vexatious, the court or a judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just. Ibid. r. 4, No. 288. 1354. No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed, or not. Ibid. r. 5, No. 289. 15. Proceedings to set aside Service of Writ. (a) Generally. 1355. See c. 8, s. 12, p. 1513. (b) Previous Practice.* . 1356. A petition on protest was de- livered by the defendant before the plain- tiff's petition (now statement of claim). The Pieve Superiore, L. E. 5 P. 0. 482 ; L. E. 4 A. & E. 170 ; 43 L. J. Adm. 1 ; ibid. P. 0. 20; 2 Asp. N.8. 162; ibid. P. C. 319. See also The Evangeline, 5 Jur. N.S. 108; 2 L. T. N.S. 137. [Ieish.] 1357. It was required to state the facts which showed want of jurisdiction. Ibid. 1358. A defendant in a cause of salvage filed a petition on protest alleging that the vessel proceeded against was worth less than £1,000 when brought into a place of safety, and that no proceedings were taken against the cargo in the suit. Held, that the petition on protest did not disclose sufficient ground to oust the jurisdiction of the court, inasmuch as it was not stated that the value of the pro- perty saved did not exceed £1,000. The Empire Queen, Ir. E. 3 Eq. 71; 3 Asp. 221. [Ieish.] 1359. As to petitions generally, see c. 35, p. 1531 ; and No. 1222, p. 1591. 1360. See also c. 8, s. 12, p. 1513. 16. Amendment. (a) Generally.] 1361. A further and better statement of the nature of the claim or defence, or of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just. Ord. XIX. r. 7, No. 203. 1362. The court or a judge may at any stage of the proceedings order to be struck out or amended any matter in any in- dorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass, or delay the fair trial of the action ; and may in any such case order the costs of the application to be paid as between solicitor and client. Ibid. r. 27, No. 223. 1363. The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be brick, 6 W. E. 871 ; The Action, 1 Spinks' Eccl. & Adm. Rep. 176. (423) As to pleas in bar under the old practice before 1859, see Ewer v. Jones, 6 Mod. 26; 2 Ld. Eaym. 937; The Lord Hobart, 2 Dodson, 101 ; The Charlotte, 3W. Eob. 73; The Sarah Jane, 7 Jur. 659 ; The Alexandra, 1 W. Eob. 293. (424) As to demurrers or pleas in bar in the American Admiralty Courts, see 2 Conk- ling's Adm. Pr. (2nd ed.) 229. [American.] * (425) Compulsory pilotage is matter of de- fence, not of protest. The Oirolamo, 3 Hagg. 173 ; The Gladiator, ibid. 340 ; The Eliza Jane, ibid. 337 ; The Protector, 1 W. Rob. 62. f (426) As to the amendment of pleadings, see Wilson's Jud. Acts and Rules (4th ed.), p. 260; Archbold's Practice (14th ed. by Chitty), vol. 1, p. 315; and Chitty's Forms (12th ed.), pp. 170—173. 1604 PRACTICE. Pt. II. In the ffigh Court. Cap. 34. just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Ord. XXVIII. r. 1, No. 309. 1364. In all cases not provided for by the preceding rules of this order, appli- cation for leave to amend may be made by either party to the court or a judge or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just Ibid. r. 6, No. 314. 1365. As to the insertion of matter of new assignment by way of amendment of statement of claim or of reply, see No. 1215, p. 1591. 1366. No pleadings shall be amended in the long vacation, unless directed by a court or a judge. Ord. LXIV. r. 4, No. 964. 1366a. For cases of applications to amend pleadings rejected as made at the hearing, and therefore too late, see, in collision actions, TheAlhambra, B. & Lush. 286 ; in salvage actions, The Cybele, No. 1466, infra, and The Antelope, No. 1472, infra. (b) Mode. 1367. An indorsement or pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amend- ments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in' writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the document as amended. Ord. XXVIII. r. 8, No. 316. 1368. "Whenever any indorsement or pleading is amended, the same, when amended, shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in man- ner following, viz. : "Amended day of pursuant to order of dated the of ." Ibid. r. 9, No. 317. (c) Time. 1369. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, be- come ipso facto void, unless the time is extended by the court or a judge. Ibid. r. 7, No. 315. As to the previous prac- tice thereon, see The Justyn, 11 "W. E. 44. 1370. The time for amending any pleading may be enlarged by consent in writing, without application to the court or a judge. Ord. LXIV. r. 8, No. 968. (d) Statement of Claim. 1371. The plaintiff may, without any leave, amend his statement of claim, whether indorsed on the writ or not, once at any time before the expiration of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. Ord. XXVIII. r. 2? No. 310. (e) Counter-claim or Set-off. 1372. A defendant who has set up any counter-claim or set-off may, without any leave, amend such counter-claim or set- off at any time before the expiration of the time allowed him for answering the reply, and before such answer, or in case there be no reply, then at any time before the expiration of twenty-eight days from defence. Ibid. r. 3, No. 311. See also No. 1404, p. 1607. (f) Pleadings in Answer. 1373. Where any party has amended his pleading under rules 2 or 3 the oppo- site party shall plead to the amended pleading, or amend his pleading within the time he then has to plead, or within eight days from the delivery of the amend- ment, whichever shall last expire ; and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment. Ibid. r. 5, No. 313. (g) Objection to — . 1374. Where any party has amended his pleading (under Eules No. 310, as to statement of claim, or No. 311, as to counter-claim or set-off), the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the court or a judge to disallow the amendment, or any part thereof, ana PRACTICE. Pt. II In the High Court. Cap. 34. 1605 the court or judge may, if satisfied that the justice of the case requires it, dis- allow the same, or allow it subject to such terms as to costs or otherwise as may be just. Ibid. r. 4, No. 312. (h) Prior to Judicature Acts and Rules. _ 1375. In a cause of damage by colli- sion, the plaintiff pleaded that both vessels were riding at anchor, and that defendant's vessel drove from her anchor foul of plaintiff's vessel. Defendant pleaded that it was not his vessel, but E lain tiff's vessel that drove. At the earing and after examination of the plaintiff's witness, the defendant applied for leave to amend his pleadings by alleging that there was a duly-licensed pilot on board his vessel, who, if any one, was to blame for the collision. Ap- plication refused. The Ahkera, 15th June, 1864. 1376. In a salvage action against sTiip, cargo, and freight, the petition alleged that the owners had paid £300 in dis- charge of the plaintiff's claim against ship and freight. On motion by defen- dants, owners of cargo, the court directed the pleading to be amended by leaving out the amount paid to the plaintiffs. The Due Checchi, L. E. 4 A. & E. 35, n. ; 1 Asp. N.8. 294. 17. Issues. (a) Generally. 1377. For provisions that where it appears to the court or judge that the issues of fact in dispute are not suffi- ciently defined, the parties may be di- rected to prepare issues which, if the parties differ, shall be settled by the judge, see Ord. XXXIII. r. 1, No. 380. 1378. As to the powers of the court on motion for judgment to direct such issues or questions to be tried as it may think fit, see Ord. XL. r. 10, No. 568. 1379. As to issues in interpleader cases, see Ord. LVII. rr. 7, 9, 13, Nos. 856, 858, 862. (b) Third Parties. 1380. Where in a collision cause the defendant claims indemnity from a third party, who appears and defends, the court may find the original defendant solely to blame, but unless issues are directed be- tween the defendant and the third party the court cannot make a decree deciding questions of liability between them. The Cartsburn, 5 P. D. 35 (C. A.) 59 ; 4 Asp. 202; 49 L.J. Adm. 14. (c) Joinder of — . See s. 8, p. 1596. 18. Special Case. See c. 24, p. 1572. 19. Questions of Fact agreed to be decided. 1381. "When the parties to a cause or matter are agreed as to the questions of fact to be decided between them, they may, after writ issued and before judg- ment, by consent and order of the court or a judge, proceed to the trial of any such questions of fact without formal pleadings. Ord. XXXIV. r. 9, No. 397. 1382. As to the entry for trial and mode of trial of such questions of fact, see c. 38, p. 1639. 20. Cross Actions. 1383. As to the old practice as to the pleadings and evidence for the trial of cross causes, see The Admiralty Court Act, 1861 (c. 10), s. 34 ; The Tecla Carmen and North American, 1 Lushington, 79 ; 5 Jur. N.S. 659; The Vortigern, Swabey, 518; 1 L. T. N.S. 307; The Gauntlet and Lady Franklin, 17thMareh, 1854; Coote's Adm. Prac. 30; The Gabriel, 4 W. E. 91 ; The Annapolis and Johanna Stoll, 4 L. T. N.S. 418, 424 ; 1 Lushington, 313 ; and Pritchards' Adm. Digest (2nded.), vol. 2, p. 591. 21. Interpleaders. See c. 43, p. 1667. 22. In Bottomry Actions. (a) Before the Judicature Acts and Rules.* 1384. In cases of bottomry it is not necessary, as a general proposition, for the bondholder in the first instance to mention in his pleadings all the circum- stances, for he relies on the execution of * (427) For form of statement of claim in a bottomry action, see E. S. 0. 1883, App. U., s. 3, No. 3, and Eoscoe's Adm. Practice (2nd ed.), App. p. 502. (4281 For form of statement of defence, Ibid. App. D. s. 3, No. 3 ; and ibid. p. 503. 1606 PRACTICE. Pt. II. In the High Court. Cap. 34. the bond. The Mary Ann, 10 Jur. 255 ; 4 Notes of Cases, 376. 1385. A bottomry bond may be sup- ported by facts which come out inci- dentally in the evidence, but the attention of the court must be primarily directed to those points more immediately put in issue in the pleadings, and it would be most inconvenient to decide the case, not according to what is alleged and proved, but according to that which incidentally transpires in the course of the suit. The Ariadne, 1 W. Eob. 412; 6 Jur. 513; 1 Notes of Cases, 494. 1386. The existence of a local law may be properly pleaded as material evidence to support an averment that the agree- ment was to make advances on the credit of the ship and freight, and that the commissions were customary. The Laurel, 3 N. E. 48. 1387. Bottomry bond pleaded as given in February, 1852, to secure an advance of money. At the hearing it appeared that the bond was for goods furnished in the previous September under an alleged agreement. Held, that upon the plead- ings the holder could not recover. The Wakefield, 5 Jur. 69. (Court of Dele- gates.) [Irish:.] 1388. An objection to a bottomry bond, that sea risk was not stipulated for, ought to be raised on the pleadings, so that if answerable it may be answered. The Royal Arch, Swabey, 281. 1389. In opposing a bottomry bond the defence intended to be relied upon . (e. g. the want of notice of 'the necessity for or the intention to execute a bottomry bond) should be clearly stated in the pleadings. The Bonaparte, 17 Jur. 285 ; 3 W. Eob. 298 ; 21 L. T. 280 ; 7 Notes of Cases, Supp. 55 ; and S. C. on appeal, ' 8 Moore, P. C. C. 460. 1390. This point not having been dis- tinctly raised in the pleadings the cause was remitted, with liberty to supply fur- ther proof in respect of such notice. Ibid. 1391. An objection by the owners of cargo that the master should have com- municated with them before hypothe- cating their cargo, cannot prevail unless pleaded. The Ollivier, 6 L. T. N.S. 259; 31 L. J. N.S. Adm. 137 ; 1 Lushington, 484 ; Glascott v. Laing, 2 Phillips, 310. 1392. In a suit to establish the validity of a bottomry bond, a prayer in the answer that before pronouncing for the validity of the bond or otherwise the court would disallow certain charges in the accounts, was considered as without precedent. Answer directed to be amended by the omission of such prayer. The Osmanli, 3 W. Eob. 207. 1393. In a cause of bottomry, on mo- tion on behalf of the bondholder, the defendants, the assignees of the owner, ordered to bring in all proofs then in their power or possession before the bondholder filed his answer to the de- fendants' pleadings, and on the further proofs being so brought in, the bond- holder allowed further time to send out to the Mauritius before pleading. The Orelia, 3 Hagg. 77, n. 1394. The defence that a bottomry bond was given as a collateral security for bills of exchange, which it was alleged had been accepted and paid, ought to he raised on the pleadings, so as to give plaintiffs notice thereof. Leave to amend given. The Onward, 1 Asp. N.S. 542, n. 23. In Collision Actions. (a) Generally. 1395. The pleadings should be con- fined to the merits of the collision. The George Arhle, 1 Lushington, 222; The Transit, No. 1992, 16 Feb. 1864; The Clarence, 1 Spinks' Eccl. and Adm. Rep. 208. 1396. The pleadings should state accu- rately the facts and the reasons on which both parties rely. Nothing should be left to inference. The Lady Anne, 15 Jur. 18 ; 5 Notes of Cases, 364. 1397. A party cannot, at the hearing, avail himself of a rule of seamanship in order to impute misconduct to the other party in not acting up to the rule, unless such misconduct is charged in the plead- ings. The JEbenezer, 2 W. Eob. 210 ; 7 Jur. 1117; and see The Marpesia, 8 Moore, P. C. C. N.S. 468. 1398. Where it was intended to charge non-observance of the 296th (now re- pealed) section of the Merchant- Shipping Act, 1854 (c. 104), with respect to the rule of port helm, the act done or not done was required to be specifically pleaded to be in violation of the statute. The Bothnia, 1 Lushington, 52 ; 29 L. J. Adm. 65 ; 2 L. T. N.S. 160 ; The Ironmaster, 6 Jur. N.S. 782. ' 1399. It appearing from the evidence that both vessels were partly to blame, but that in the case of one of them there had been culpable delay in porting the helm on perceiving the approach of the other, held, reversing the sentence of the PRACTICE. Pt. II. In the High Court. Cap. 34. 1607 Court of Admiralty, that under the Mer- chant Shipping Act, 1854 (c. 104), as. 296, 298 (now repealed), the owners of the ves- sel so neglecting to port her helm in time could not maintain their suit in the Court of Admiralty, or recover any damages in respect of the collision ; hut the point not having been raised in the court below, no costs of appeal given. The James, 4 W. E. 353. 1400. In a cause of damage by collision the protest should be brought in, but it is unnecessary to plead the contents of it. The Mellona, 10 Jur. 994; The Speculator, 12 Jur. 546 ; The Rob Roy, 13 Jur. 756. 1401 . Objections to pleading the protest and value of the ship. Held, that the protest would be before the court in the regular course of the cause, and that the value of the ship, where not agreed upon or ascertained by appraisement, was a question for the registrar and merchants. Objections allowed. The Speculator, 12 Jur. 546. 1402. A verdict obtained at common law could not be introduced into Admi- ralty pleadings. The Clarence, 1 Spints' Eccl. and Adm. Eep. 208, 209. (b) Before the Judicature Acts and Rules. (aa) Generally.* 1403. Plaintiffs, the owners of a sailing vessel in proceedings against a steamer, need not plead that their vessel, after sighting the steamer, kept her original course. The West of England, L. E. 1 A. & E. 308 ; 36 L. J. Adm. 4. 1404. The court having found both vessels to blame, refused at such a late stage to allow the defendants to amend their statement of defence by adding a counterclaim, but left them to institute a cross action. The Leon, 6 P. D. 148 ; 50 L. J. P. D. 59. 1405. In a cause of damage by colli- sion, if the owners of the damaging vessel intend to attribute the cause of damage to the wilful misconduct of their master, the facts of the case should be admitted, and the wilful acts of the master set forth. The Seine, 5 Jur. N.S. 299. 1406. If the defendants in an action of collision desire to claim limitation of liability in such action, they must do so by their pleadings. Wahlberg v. Young, 45 L. J. C. P. 783 ; 4 Asp. 27, n. ; 24 W. E. 847. (bb) By Plaintiffs. 1407. It is a rule to be observed in all courts, that a party complaining of an in- jury, and suing for redress, can recover only secundum allegata et probata. The Ann and Magnet, 1 Lushington, 55; 13 Moore, P. C. C. 198; 3 L. T. N.S. 128; 8 W. E. 567 ; The Despatch, 1 Lushing- ton, 98; 14 Moore, P. C. C. 83; The North American, Swabey, 358 ; 12 Moore, P. C. C. 331 ; The Wakefield, 5 Irish _ * (429) The statement of claim in a colli- sion action is entitled in the cause, and avers that the plaintiffs have suffered damage by collision with the defendants' ship by the negligence and bad navigation of the defen- dants servants at a particular time and place. It then proceeds to state shortly and in separate paragraphs the name, tonnage, description of the plaintiffs' vessel, whence and whither bound, and with what cargo, the description of wind, weather and tide, about the time of the collision, the position, bearing and conduct of the defendants' vessel, manoeuvres of the plaintiffs' vessel to avoid collision, the wrongful conduct of the defendants' vessel causing the collision, and the mode of collision. It charges in separate paragraphs blame to those on board the de- fendants' vessel in respect of such bad navi- gation and such breaches of the sea or local collision rules as are considered to have been committed. It concludes with a claim for judgment against the defendants for the damages occasioned to the plaintiffs by the collision, for costs, and for a reference to the registrar and merchants to assess the da- mages. (430) The statement of defence is simi- larly entitled, and states shortly similar par- ticulars, and the defendants' account of the circumstances of the collision, averring that the defendants' master and crew ■were in no degree to blame for the collision, and charging such bad navigation and breaches of the sea or local collision rules as are considered to have been committed on board the plaintiffs' vessel. (431) If it is intended to prefer a counter- claim for damages to the defendant's vessel, the defendant, in a concluding paragraph, headed counter-claim, declares he repeats (so far as necessary) the paragraphs (stating the number of them) of the defence, avers that he has sustained damage by such col- lision, and claims judgment, costs, and a reference to the registrar and merchants to assess the damages. (431a) For forms of statement of claim and defence in such actions, see Eoscoe's Adm. Practice (2nd ed.) App. pp. 484, 485, 509. 1608 PRACTICE. *t. II. In the High Court. Cap. 34. Jur. 60; The East Lothian, 14 Moore, P. C. C. 177 ; 4 L. T. N.S. 487. 1408. Semite, slight discrepancies be- tween the pleadings and evidence will not be regarded by the court, owing to the difficulty of practitioners always clearly understanding all the points of the cause before filing their pleadings. The Traveller, 2 W. Eob. 198. 1409. In causes of damage by collision a considerable degree of elasticity is allowed in pleading, because of the diffi- culty of getting at or understanding all the facts requisite to the case. The court would not therefore stop the plaintiff's' case for ordinary errors in his pleading, but it will do so when his evidence is irreconcileable with his petition. The Haswell, No. 1673, 9th July, 1863. 1410. In causes of collision it is often impossible to state in the first instance all the important facts bearing on the collision. Sometimes the collision takes place in darkness, and it cannot be known on board one ship what orders were given on board the other, what look-out was kept, &e. If these are discovered subsequently to pleading no wrong is done in admitting evidence of them, if the other party has opportunity of con- tradicting them. The Schwalbe, Swabey, 523. 1411. A plaintiff is bound to plead facts, from which the law will infer that the collision was occasioned by the de- fault of the defendant, but not to plead the legal inference. The East Lothian, 1 Lushington, 241 ; 14 Moore, P. C. O. 177 ; 4 L. T. N.S. 488. 1412. It is sufficient for a party who complains of an injury to his vessel occa- sioned by the improper course of another vessel, to describe that course, without undertaking to attribute it to any parti- cular conduct on board the other vessel. Ibid. 1413. The plaintiff cannot recover in full if he fails to prove the case as set up in his pleading and evidence; although fault is otherwise established against the other vessel, and none proved against his vessel. The North American, Swabey, 358 ; 12 Moore, P. C. O. 331. 1414. It was pleaded that the default of the defendant's vessel took place in a particular manner. Held, that such de- fault must be proved in the manner in which it was alleged in the pleadings. The Ann and Magnet, 1 Lushington, 55 ; 13 Moore, P. 0. O. 198 ; 8 W. E. 567 ; 3 L. T. N.S. 128. 1415. It is not enough to establish by evidence that the default was committed in another manner, although the result would be the same upon the merits, as the court will confine its judgment to the issues raised upon the pleadings. Ibid. 1416. Plaintiffs in a cause of damage by collision against the Ann, charged in their pleadings that the collision was caused by the Ann having suddenly and improperly starboarded her helm. Issue having been taken on this fact, it was proved that the collision arose from the Ann not having altered her course till the last moment when a collision was inevitable, and that the Ann had not starboarded her helm at all, but ported it too late. Held, a fatal variance, and suit dismissed. Ibid. 1417. According to the plaintiffs' plead- ings their vessel, the T. C, was close- hauled on the starboard tack, and the defendant's vessel, the N. A., was on the port tack without a good look-out; and the vessels would have gone clear, hut that the N. A. starboarded, and with her starboard bow came into collision with the port bow of the T. 0. Held, by the court below, that the collision was caused * by the want of a good look-out on board * the N. A., and by the porting of her helm, and also by the starboarding of the T. C, and that both vessels were to blame. On appeal, held, that there was a want of good look-out on board the N. A., that her helm was improperly ported, that such conduct sufficiently accounted for the collision, that neither the T. 0. nor N. A. starboarded, and that the collision took place with the port, and not the starboard, bow of the N. A., but that the case was not proved as alleged in the plaintiffs' pleadings. Judg- ment therefore affirmed. The North Ame- rican, Swabey, 358 ; 12 Moore, P. 0. C. 331. 1418. Plaintiff charged that the engines of his vessel, the S., were stopped to bring the ship up, that the lights of the H. coming up behind her were then ob- served, and that the H. continued her course until about fifty yards off, when she suddenly starboarded her helm and ran into the S., and that the collision was occasioned solely by want of skill or the negligence or other misconduct of those on board the H., and especially in their not having kept out of the way of the 8. as they ought to have done. The evi- dence for the plaintiff was to the effect that the H. was to blame, either because PRACTICE. Pt. II. In the High Court. Cap. 34. 1609 she did not keep her course or did not starboard her helm, and that had she starboarded the collision -would have been avoided. Held, that the plaintiff's evi- dence was irreconcileable with the case laid in his pleading, and that the general charge of negligence was too general to include the charge as disclosed by the evidence. Judgment for the defendant on the plaintiff's own case. The Haswell, No. 1673, 9th July, 1863. Affirmed on appeal, 1 8th February, 1864. 1419. The plaintiff pleaded that the collision was caused 'solely by the A. not having carried the regulation lights. Held, that the A. was to blame as to her lights, and that the other vessel was also to blame. Held, further, that the plaintiff was not barred from recovery of a moiety of the damage by his having pleaded that the A. was solely to blame. The Aurora and The Robert Ingham, 1 Lushington, 327. 1420. Plaintiff pleaded inter alia, to the effect that half an hour previous to the collision in question, the vessel proceeded against had run foul of a barge, and that on being threatened with legal proceed- ings the owners of the vessel proceeded against had paid the 'damage. On objec- tion to this paragraph the court ordered it to be struck out. The Cosmopolitan, 1 Spinks' Eccl. and Adm. Eep. 179. 1421. Circumstances may sometimes be relied upon which are not pleaded, but they must be ciroumstances of which the party pleading was necessarily ignorant, such as where the person in charge of the other vessel was drunk, or where the pilot was below, or where there was no look-out, or where there was misconduct. The East Lothian, 1 Lushington, 244. 1422. Neither of two sailing vessels which came into collision, had observed the Admiralty regulations respecting lights, but neither had pleaded that the collision was occasioned by such non- observance on the part of the other. The court, nevertheless, held, that under the circumstances of the case, both vessels were barred of recovery by 14 & 15 Vict. c. 79, s. 28 (now repealed). The Aliwal, 1 Spinks' Eccl. and Adm. Eep. 96; 18 Jur. 296. 1423. The plaintiff alleged, first, that the defendant improperly starboarded ; and secondly, if he did not starboard, at all events he neglected to port as he ought to have done. Held, the court might, on the evidence, well find for the plaintiff without deciding whether the defendant p. had starboarded or not, for the first charge, if proved, necessarily involved the second, and if not proved, the Becond was suffi- cient to sustain judgment. Therefore the objection of want of certainty in pleading was untenable. The Amalia and Marie de Brabant, 10 L. T. N.8. 826. 1424. The defendant was found to blame for improperly porting his helm. Held, that this charge, though not specially pleaded by the plaintiff, was sufficiently to be inferred from his pleadings. The Moderation, 1 Moore, P. C. 0. N.S. 528 ; 9 L. T. N.S. 586. 1425. The plaintiffs charged the vessel proceeded against with having caused the damage by two separate collisions, where- by the damaged vessel, being at anchor, was driven on the rocks and sunk. In the pleadings the defendants admitted the fact of the first collision, but denied that a second collision had occurred as alleged by the plaintiffs. The evidence esta- blished that the first collision was of such a nature that the plaintiffs' vessel might have been driven ashore on the rocks even if no second collision had occurred, which fact was not clearly established by the evidence. Held, that the first collision being proved the plaintiffs were entitled to recover, as they had proved a fact sufficient to found a judgment in their favour, and to satisfy the rule that a plaintiff can re- cover only secundum allegata et probata, although the allegation charging the second collision was not proved. The Despatch, 14 Moore, P. C. 0. 83 ; 1 Lush- ington, 98. 1426. Special damages as rewards paid to salvors for services rendered necessary by the collision, are not to be pleaded. The George Arkle, 1 Lushington, 222. 1427. Averments in the plaintiffs' plead- ings of particulars of salvage services rendered to the damaged ship, and that £130 had been paid for salvage, directed to be struck out. Ibid. 1428. Where the plaintiffs' vessel is at anchor at the time of a collision and the defendant's vessel under weigh, the plain- tiffs need not, as in other cases, plead the specific acts of negligence which occasioned the collision. The Secret, 1 Asp. N.S. 318. [Irish.] 1429. In a collision between plaintiff's vessel at anchor, and defendant's vessel under weigh, it will be sufficient for the plaintiff to set forth the circumstances of the collision within his knowledge, and charge generally that it was owing to the mismanagement or misconduct of the do- 5 L 1610 PRACTICE. Pt. II. In the High Court. Cap. 34. fendant's vessel and crew, and the burthen of proof is primd facie on the defendant to make out a satisfactory defence. The Bothnia, 1 Lush. 54 ; 2 L. T. N.S. 160 ; 29 L. J. Adm. 65. 1430. The plaintiff should charge the defendant's vessel and crew with whatever fault or blame on their part he may con- sider occasioned or contributed to the collision. It is not, however, always in the plaintiff's power to set forth all the circumstances of the case in his first pleading, as the collision may have oc- curred at night or under other circum- stances preventing his knowing all that transpired on the occasion. Therefore, where the defendant's answer discloses circumstances enabling the plaintiff to make further charges of misconduct or default against" the defendant's vessel or crew, the plaintiff is at liberty to do so in his reply. Ibid. 1431.„Where a plaintiff's vessel was run down at anchor, and the plaintiff pleaded that fact, charging negligence generally, and the answer pleaded that the collision was not occasioned by negligence, but by the violence of the tempest and sea, Which prevented the anchors of the defendant's vessel from holding, the plaintiff may reply that the collision was occasioned by the default of the defendant's ground tackle. Ibid. 1432. Where it is pleaded by the de- fendant that his ship was in charge of a duly-licensed pilot, the plaintiff should plead that the pilot was not taken on board by compulsion of law, by reason that the ship was in ballast, and there- fore exempt from being compelled to take a pilot, if the plaintiff intends to rely on that fact in impeachment of the defence. The Agricola, 2 W. Eob. 16. 1433. Held, that the defendant's vessel was to blame for not having ported her helm and eased off her main-sheet. No such charge was contained in the plain- tiff's pleadings, though a general charge of mismanagement was pleaded besides other charges. The court, but with doubt, pronounced for the damage. The Lady Ann, 7 Notes of Cases, 370. 1434. The plaintiff may plead a certain state of facts, and charge generally that the defendant's vessel and crew were to blame for the collision. The court will not order the pleading to be amended so as to limit the general charge by the case laid, but will not permit under the general charge an entirely different case to be proved to that laid. The Great Eastern, 10th Nov. 1863. 1435. The plaintiff pleaded, first, the regulations of the Admiralty respecting the exhibition of lights, and other regu- lations respecting the courses to be fol- lowed by steamers, published by the Ad- miralty, and republished by the Trinity House at Hull ; secondly, a printed copy of such regulations as republished; thirdly, the history of the voyage in one article, at great length. Held, first, that the regulations respecting the exhibition of lights were the only binding regula- tions under the act of parliament; se- condly, the publication of those regula- tions must be shown from the Graz^iftsp as an exhibit ; thirdly, the article plead- ing the transactions must be divided for the convenience of taking evidence thereon by an examimer. The Bob Boy, 13 Jut. 615. 1436. It was pleaded to the effect that defendant admitted his liability to pay and promised to pay, and had the ship taken into his yard to be repaired. Ob- jections to these pleadings allowed with costs. The Transit, No. 1992, 16th Feb. 1 864. See also The Friendship, No. 1050, 13th May, 1861. 1437. If such matters should be mate- rial on the question of costs, the court, after judgment on the question of damage, might permit evidence thereon to be given in reference to costs. Ibid. (cc) By Defendants. 1438. A defendant is not bound to do more in his pleading than deny that the collision was occasioned by the default of his vessel or of his servants. The East Lothian, 1 Lushington, 241 ; 14 Moore, P. CO. 177 ; 4 L. T. N.S. 487. 1439. A defendant, though pleading a particular fact as the cause of the collision, is not bound to prove it, and if he fails in so doing he is not thereby concluded. Ibid. 1440. The reason of the rule laid down in the Ann and Magnet (13 Moore, P. 0. O. 198) altogether fails in its application to the defence of the vessel proceeded against. An erroneous allegation of the mode in which an injury occurred does not, if made byway of answer, narrow the issue down to the particular fact allege^ so as to entitle the complainant to recover if the proof of it fails. Ibid. 4 L. T. JN.b- 488 ; 14 Moore, P. O. O. 177. 1441. In pleading immunity by reason of thevessel's being under a dock-masters orders, it is not sufficient to state that the collision occurred in a dock, and that tfl defendant's servants were acting at t» PRACTICE. Pt. II. In the High Court. Cap. 34. 1611 time under the dock-master's orders, and were bound by law so to do, and therefore not responsible for the collision. It must be further stated that the dock was a public dock, and the act of parliament should also be referred to by reason of which it was compulsory upon the de- fendant's servants to act under the orders of the dock-master. The Bilbao, No. 298, Not. 3, 1860. 1442. A starboard-tacked vessel came in collision with a port-tacked vessel, both close-hauled. The weather was thick and foggy. The port-tacked vessel proceeded against averred in plea thick fog, and that the other vessel was to blame in not keep- ing a good look-out, giving notice of her approach, and putting her helm down. At the hearing the case was argued as one of inevitable accident. The court, though reprehending such a variation between plea and argument, held the facts to be sufficiently stated to admit of its considering both grounds of defence. The England, 5 Notes of Cases, 174. 1443. A steamer came into collision with a sailing vessel. Defence, that the sailing vessel, just previous to the col- lision, " was seen to be suddenly, and in violation of the 296th section of the Mer- chant Shipping Act, approaching the steamer on her port bow." Held, that in pleading it is necessary to state, as accu- rately as the circumstances of the case will admit, in what respect it is intended to allege that the Merchant Shipping Act has been violated, but that in the instance before the court it was sufficient to plead that the helm of the sailing vessel had not been ported in accordance with the terms of the statute. The Ironmaster, 6 Jur. N.S. 782. 1444. Averments in the defendant's pleadings of unnecessary delay in bring- ing the suit directed to be struck out. The Mellona, 3 W. Eob. 10. 1445. Those on board the vessel pro- ceeded against were found to have been guilty of negligence, and therefore to blame for the collision. Objection then taken that such negligence was not the negli- gence of the defendants, the owners, or their servants, but of certain independent contractors to whom the vessel had been entrusted ; held, to have been urged too late, the pleadings not raising this objec- tion. The Ruby Queen, 1 Lushington, 266. 1446. Defence that navigating the wrong side of the river was a wilful act of the master for which the owners were not liable, overruled because not pleaded. The Seine, Swabey, 413. 1447. Where the evidence is taken be- fore an examiner, the defence of inevit- able accident must, if it is to be relied upon, be pleaded. The E. Z., 10 L. T. N.S. 790 ; 33 L. J. Adm. 200. 1448. Objections to defendant's plead- ing, lBt, the history of the ship proceeded against for some days prior to the colli- sion ; 2nd, statements made by the mate and seamen of the ship proceeding with respect to the state of their vessel, &c. ; 3rd, the age of the ship ; 4th, variations between the accounts given in the protest and plaintiff's pleading ; and 5th, delay in instituting proceedings. Held, 1st, that the previous history of the ship was admissible, as being usual and conve- nient ; 2nd, that such only of the state- ments as formed part of the res gestce were admissible ; 3rd, that the age of the ship might be pleaded to account for the loss ; 4th, that inasmuch as the protest itself was to be brought in the statements contained in it need not be pleaded ; and 5th, that the delay appearing on the face of the proceedings, and not being accounted for, it was not necessary to allege it in the responsive pleading. The Mellona, 3 W. Eob. 10 ; 10 Jur. 993. 1449. Averment, that the A. ran into the vessel B. at sea, and caused her to founder, whereby some of the crew of the B. and a passenger on board her were drowned, and that the collision was caused by the improper navigation of the A. The legal representatives of the deceased persons were the plaintiffs. Defence, that the collision took place on the high seas, that the deceased persons were aliens, and the B. a French vessel, ordered to be struck out as irrelevant. The Explorer, L. E. 3 A. & E. 289. 1450. Defence of compulsory pilotage, Under 6 Geo. 4, c. 125, should be stated in the pleadings, but the omission to do so will not deprive the defendant of the exemption from responsibility conferred by the statute ; the act being a public act the court is bound to take notice of it without its being specially pleaded. The Canadian, 1 W. Eob. 343. 1451. A defence that the shipproceeded against was in charge of a duly-licensed pilot, taken by compulsion of law, must be pleaded specifically. The Northampton, 1 Spinks' Eccl. and Adm. Eep. 155, n. 1452. It was pleaded by the defendant that there was a duly-licensed pilot on board his vessel, but it was not pleaded 5l2 1612 PRACTICE. Pt. II. In the High Court. Cap. 34. under what act of parliament he was taken, nor whether compulsorily, nor whether he was to blame for the collision, nor that all his orders were obeyed. The court therefore refused to take cognizance of such claim of exemption. The Philo- mele, cited in 1 Spinks' Eccl. and Adm. Rep. 155, n. 1452a. In a cause of damage by colli- sion plaintiff pleaded that both vessels were riding at anchor, and that defen- dant's vessel drove from her anchor foul of plaintiff's vessel. Defendant pleaded that it was not his, but plaintiff's, ves- sel that drove. Defendant applied to be and was allowed to prove his case by affidavits. Plaintiff examined his wit- nesses vivd voce, and after he had done so defendant applied for leave to amend his pleadings by alleging that there was a duly-licensed pilot on board his vessel, who, if any, was to blame for the colli- sion. The court refused the application. The Ahhera, 15th June, 1864. 24. In Damage to Cargo Actions. (a) Generally.* 1453. In an action of damage to cargo, the petition ought generally to state, as far as practicable, the cause to which the plaintiff attributes the loss or damage. The Helene, B. & L. 415. (b) Before the Judicature Acts and Rules. _ 1454. Indorsees of a bill of lading, signed by the captain, raised an action against the shipowners for short delivery of the goods mentioned in the bill of lading. Held, that the' action was irrele- vant, as the pursuers did not allege that there was short delivery of the quantity actually shipped. M'Lean and Hope v. Munch, 3rd Series, vol. 5, p. 893. [Scotch.} 1455. In an action for damage to cargo, the defendants pleaded that the damage was occasioned by accidents and perils by the bill of lading excepted, and by causes for which the defendants by the terms thereof were not responsible. Held, that the defendants must give particulars of the accidents, perils, and causes which occasioned the damage. The Hakon Adelstein, 43 L. J. Adm. 9. 1456. The Court of Admiralty, prior, to the Judicature Acts, although influ- enced by equitable considerations, was not a court of equity, so as to allow mat- ters foreign to the issue to be introduced in order that complete justice might be done between the parties; it followed rather in its pleadings and. practice the courts of common law. The Don Fran- cisco, 1 Lushington, 468 ; 31 L. J. Adm. 14; 5L. T. N.8. 460. 1457. A plaintiff having sued in the Admiralty Court, in respect of damage done to cargo, through the default of the crew of the vessel on board of which it was conveyed, held, prior to the Judi- cature Acts, that the defendant was not entitled to plead by way of set-off that the plaintiff had illegally deducted from the freight and primage a sum greater than the amount of the damage. Ibid. 25. In Marine Insurance Actions. See tit. Marine Insurance, p. 1102. 26. In Actions for Necessaries, Repairs, and Supplies.^ (a) Before the Judicature Acts and Rules. 1458. A reply in a cause of necessaries, * (432) For form of statement of claim and statement of defence in an action of damage to cargo, see Eoscoe's Adm. Prac- tice, 2nd ed. App. pp. 489—494. (433) The plaintiff! declaring in trover for goods sold for less than their value at an in- termediate port must allege special damage to recover the difference of value at the place of delivery. Atkinson v. Stephens, 7 Exch. 567, per Parke, B. (434) The rules of pleading in Admiralty must be strictly complied with, and the evi- dence confined to the points put in issue by the pleadings. McKinlay v. Morrish, 21 How U.S. 343. [American!] (435) Thus, where the libellants put their case upon bad and careless stowage of the cargo and upon leaks in the deck of the ship, through which water passed and damaged it, and the respondents specifically deny both allegations, these two points are the only ones in issue, and testimony in re- gard to the effect of a gale upon the general seaworthiness of the ship and the like is ir- relevant. Ibid. (436) "Where, in a libel for damage to a cargo, the allegations are— 1. That the master falsely represented the ship to be tight, &c.; and 2. That the damage resulted from the negligence of the master and mariners, the libellant cannot at the trial set up a third ground of complaint, namely, that the master failed in his duty in not putting into port after a storm to refit and dry the cargo, Saule v. EodocanacM, The Oregon, l.Newb. Adm. 504. [American.] , . t (437) For form of statement of claim and statement of defence in an action tor PRACTICE. Pt. II. In the High Court. Cap. 34. 1613 leaving it doubtful whether the person in possession of the vessel at the time of the supply was the original mortgagee or the defendant, the transferee of the mort- gage, is bad. A mortgagee in posses- sion would not be liable for necessaries supplied, unless the master in ordering them acted as the agent of the mortgagee. An allegation that a defendant was in possession of the vessel at the date of the supplies, and personally liable for them, would not, therefore, be a good reply to an answer of a defendant claiming to be a mortgagee prior to the date of the sup- ply. The Troubadour, L. E. 1 A. & E. 802 ; 2 Asp. 475. 1459. The petition claimed in respect of cordage and. similar articles supplied to the A., which plaintiff contended was a French vessel. Defendants, by petition on protest, pleaded the vessel was British, and her owners domiciled in this country. The plaintiffs by their answer denied this, and averred she was the property of cer- tain American citizens. Held, that this averment was too vague, and must be amended by stating who the citizens were. The Beatrice, 22 December, 1866. 1460. In an action for necessaries it is not sufficient to allege, in general terms, that money was advanced for necessary expenses, but it must be stated what those expenses were. The Riga, L. E, 3 A. & E. 523. 27. In Limitation of Liability Actions.* necessaries, see Eoscoe's Adm. Prac, 2nd ed. . App. p. 496. (438) For form of statement of claim and statement of defence in an action for repairs and supplies, Ibid. p. 498 ; and B. S. 0. of 1883, App. C. s. 3, No. 4, and App. D. s. 3, No. 4. * (439) The statement of claim in an action of limitation of liability is entitled with the names of all the owners of the ship A. (whose liability is sought to be limited) as plaintiffs, and the other ship B. and her owners made defendants. (440) It sets forth that the plaintiffs are the owners of the ship A. ; that she is (if British) a duly-registered British ship (if a foreign ship state so) ; that she came in colli- sion on such a day with ship B., which with her cargo was damaged or lost (as the case may be) ; and persons were drowned or injured (as the case may be). (441) The actions instituted and the judg- ments thereon, and that the plaintiffs admit they were wholly or partially to blame (as the case maybe), and that further actions are expected to be commenced. (442) That the collision occurred without the actual fault or privity of the plaintiffs or any of them, and that the damages will exceed the amount of their statutory lia- bility. (443) That there is no claim for loss of life or personal injury, or setting forth the claims or actions instituted in respect thereof. (444) The gross tonnage of ship A., and the crew space to be deducted, according to theM. S. Act, 1867 (c. 124), s. 9, showingthe precise balance on which the plaintiffs lia- bility is to be estimated. (445) The amount of such liability at £8 or £15 per ton, as the case may be, on such balance of tonnage. (446) That the plaintiffs are willing to pay this sum into court with such further sum to oover interest as the court may direct. (447) That the plaintiffs claim a declaration that they are not liable beyond that amount, and that on payment into court of that amount, with interest, all further proceed- ings in the recited actions may be stayed, and that directions may be given for ascertaining the persons having claims on the fund, and the exclusion of those not claiming within a time to be limited for the purpose. (448) The statement of defence usually traverses the averments as to the collision having occurred without the fault or privity of the plaintiffs, as to the gross tonnage, and as to the amount for which the plaintiffs are liable, so as to put them on proof of those averments. (449) See also for form of statement of claim and statement of defence in an action for limitation of liability, Eoscoe's Adm. Practice, 2nd ed., App. pp. 505 — 508. (450) The judgment usually sets forth that on payment by the plaintiffs into court of the amount of their statutory liability (setting forth the same which is usually that men- tioned in the statement of claim), with in- terest at four per cent, to the date of the judgment, or if paid in afterwards to the date of payment and of costs in the several recited actions, such actions are directed to be stayed. (451) A time is limited in the judgment within which all claims are to be made. (452) All claims and accounts are referred to the registrar and merchants to examine and report upon, and plaintiffs are by the judgment condemned in the costs of all par- ties in the limitation action. (453) If there is unusual and unnecessary litigation between claimants in the limitation suit, the registrar will, on taxation, disallow these costs as against the plaintiffs. (454) Limitation of liability may be claimed by the defendant's pleadings in a collision action. Wahlberg v. Young, 45 L. J. C. L. 783 ; 4 Asp. 27 ; 24 W. B- 847. 1614 PRACTICE. Pt. II. In the High Court. Cap. 34. 28. In Possession Actions. (a) Prior to the Judicature Acts and Rules.* 1461. In a cause of possession the alle- gation of the party proceeding stated the instrument of purchase, and that he had never sold or transferred the possession. Objection thatthe manner in which thetitle was avowed was not sufficiently expressed, overruled. The Sisters, 3 C. Eob. 213. 1462. If a party intends to contend that a Bale, in itself null and void, was subse- quently ratified by the owner of the vessel, the fact of such ratification should be pleaded. The Empress, Swabey, 163 ; 3 Jur. N.S. 119. 29. In Salvage Actions. (a) Generally.^ 1463. In salvage actions a fuller form of statement of claim than that given in E. S. C. of 1883, App. 0. s. 3, No. 6, must generally be adopted. Order in this case made accordingly. The Isis, 8 P. D. 227 ; 53 L. J. P. D. 14 ; 5 Asp. 155 ; 49 L. T. N.S. 444 ; 32 W. E. 171.J 1464. Because, where the defendants admit the facts alleged in the statement of claim, the plaintiffs are not allowed to give any evidence at the hearing. Ibid. 1465. In salvage actions, the plaintiffs in their statement of claim should state fully the material facts of the service. The Hardwick, 5 Asp. 199. . 1466. The court, on the motion of the defendants, struck out paragraphs in the statement of claim which alleged that in rendering the salvage services the plain- tiffs' vessel had lost the benefit of an engagement, orders to fulfil which were not received in due time by reason of the rendering of the services. The Cybele, 3 Asp. N.S. 478 ; 37 L. T. N.S. 165. (b) Before the Judicature Acts and Rules. ] 467. In a claim for salvage arising out of unexpected dangers in the perform- ance of a towage contract the plaintiffs must prove that the ship having got into danger from no 'fault of theirs, they did all they could to prevent it, and performed services not covered by their towage con- tract. The defendants by denying the performance of salvage services will put all these matters in issue, and need not, if they contend their ship was placed in danger by negligence or error in judgment of the claimants, allege these matters. The Minnehaha, 1 LusMngton, 335, 350 ; 15 Moore, P. 0. C. 133. 1468. But under such a traverse wilful misconduct cannot be put in issue. Ibid. 1469. In every case the court will have regard to the degree of notice given by the defendants to the claimants of the objec- tions on which they intended to rely. Ibid. 9 "W. E. 925. 1470. The court refused to allow the defendants to add to their pleas an alle- gation that the salvors since the com- mencement of the suit had assaulted some of the witnesses who were going to give evidence on behalf of the owners. The Thomas Fielden, 11 W. E. 156. 1471 . Defendants; in pleading an agree- ment for salvage, must allege it was entered into by the master on behalf of himself and the other plaintiffs, the owners and crew. Buchanan v. Barr, 3rd Series, vol. 5, p. 973. [Scotch.] 1472. The defendants alleged that they had been decreed by the judge of the Court of Admiralty of the Cinque Ports to pay £240 to parties other than the plaintiffs, who had assisted in the salvage service. Objections by plaintiffs to this averment overruled. The Antelope, L. E. 4 A. & E. 33 ; 42 L. J. Adm. 42 ; 1 Asp. N.S. 513 ; The Due Checchi, L. E. 4 A. &E. 35, n.; 1 Asp. N.S. 513. 1473. "Whenever the defendants intend to rely upon sect. 460 of the M. S. Act, 1854 (c. 104), as governing the question of costs, the facts material for that pur- pose should be distinctly pleaded and proved. The Favourite, 5 L. T. N.S. 773. 30. In Wages Actions. (a) Generally.^ 1474. In an action of wages by master against shipowner, the defendant, byway * (455) For forms of statement of claim and statement of defence in a possession action, see Eoscoe's Adm. Practice, 2nd ed., App. pp. 499, 500; and E. S. 0. 1883, App. 0. s. 3, No. 5, and Ibid. App. D. s. 3, No. 5. t (456) For forms of statement of claim and statement of defence in a salvage action, Boaooe,- Ibid, pp. 472—480, 509 ; and E. S. 0. App. C. and D. No. 6. (457) For the like in a towage action, Eos- coe, Ibid. pp. 482, 483. . t (45S) Under this decision the form oi pleading prior to these rules, and setting forth full particulars of the services rendered, is still substantially adopted. . , § (459) For forms of statement of claunantt statement of defence in a wages action, seeKos- coe's Adm. Practice, 2nd ed. , App. pp. 49*, * aa " PRACTICE. Pt. II. In the High Court. Cap. 34. 1615 of set-off and counter-claim, claimed da- mages for the loss of the ship by the negligence of the plaintiff. Eeply, that the ship was insured against a total loss, and that the underwriters had paid or agreed to pay to the owners the whole amount payable by them on a total loss. Held, on demurrer, that the reply was bad, because the plaintiff had not pleaded that the money had been actually paid to the defendant, or that the counter-claim had been brought without the authority of the underwriters. The Sir Charles Napier, 5 P. D. 73. C. A. 1475. In an action by master, also part owner, for his wages and disburse- ments, the defendants (his co-owners) may allege counter-claims against him in respect of the co-ownership, and pray for a settlement of those claims. The City of Mobile, L. E. 4 A. & E. 191 ; 43 L. J. N.S. Adm. 41. (b) Before the Judicature Acts and Rules.* 1476. It is not necessary or proper for the mariner to plead ill-treatment by the master. It may be pleaded subsequently, if necessary, and responsively to a charge of drunkenness. The New Phoenix, 1 Hagg. 198. 1477. A charge of ill-treatment may be pleaded as historically accounting for a fact afterwards relied on. The Jack Park, 4 C, Eob. 312. 1478. Qucere, whether, according to the ordinary practice of the Court of Admi- ralty, alleged drunkenness of the mariner can be made available as a defence to his claim for wages, unless specifically pleaded and put in issue in the cause ? The Duchess of Kent, 1 W. Eob. 284, 285. 1479. It is not necessary to plead the entries in the log of the several acts of disobedience and mutinous conduct relied upon to work a forfeiture of wages. The John Knox, 16 Jur. 1161. 1480. The defendant having rested his defence formaliter on the ground of an asserted consent of the mariner, which was held not to bar him, the court will, nevertheless, take into consideration matters forming a just ground of de- fence, but which the defendant may have improperly overlooked. The Elizabeth, 2 Dodson, 406. 1481. The court refused to regard proofs of the plaintiff's general incapa- city, as that charge had not been pleaded. The Exeter, 2 C. Eob. 261. 1482. The owners pleaded a forfeiture, under the statute, of the wages, on the ground of desertion, but did not plead a charge of temporary desertion. The evi- dence established the latter, but not the former charge. The court pronounced for the full wages. The Two Sisters, 2 W. Eob. 125, 146. 1483. The shipping agreement having been brought in and not contradicted, it is unnecessary for the defendants to plead the execution of it. The Test, 3 Hagg. 312. 1484. A pleading in defence that the wages were earned under an agreement entered into for the purpose of breaking the blockade of the Confederate States of America, and that such agreement was contrary to law, ordered to be struck out. The Helen, 11 Jur. N.S. 1025 ; 14 W. E. 136. 31. Delivery. See c. 12, p. 1531. 32. Printing. See c. 37, p. 1632. * (460) In wages actions generally all that is required of the plaintiff in the first in- stance is to plead the hiring, rate of wages, performance of the service, determination of the contract, and refusal of payment. The Newham, Stuart's Vice- Adm. Eep.71. [Lower Canada.] See also Browne's Civ. & Adm. Law, 2nd ed. 410. (460a) An appearance having been entered, the court, in a wages action, ordered the plain- tiff to bring in his libel on the following day at eleven o'clock. The Newham, Stuart's Vice-Adm. Eep. 70. [Lower Canada.] (461) If misconduct {e.g. desertion) on the part of a mariner be set up as a defence to a claim of wages, not only must the miscon- duct be pleaded, but the pleading containing such defence must furnish a specification of the acts of misconduct with a proper degree of certainty. The Agnes, Stuart's Vice-Adm. Eep. 57. [Lower Canada.] See also Ma- comber v. Thompson, 1 Sumner's Eep. C. C. U. S. for the First Circuit, p. 384. [Ame- rican.] (461a) No facts of misbelfeviour, or other cause of forfeiture of wages, are admissible, unless the answer distinctly propounds them and puts them in issue. Orne v. Townsend, 4 Mason, 541. [American.] (462) A defence that the 189th section of the M. S. Act, 1854 (c. 104), prohibits any suit in a superior court for the recovery of wages under *50, is not good upon the plea of never indebted, but must be pleaded specially. Johnston v. Bilberry, 3 H. & C. 328. 1616 PRACTICE. Pt. II. In the High Court. Cap. 35. 33. Costs. 1485. As to costs in connection with pleadings, see tit. Costs, c. 7, p. 348. 35. Proofs. 1. View. See tit. Evidence, p. 424, and ibid, in Addenda. 2. Foreign Laic. See tit. Evidence, p. 423. 3. Declaration of Agent. 1486. In a cause of damage declara- tions made by the master, either imme- diately after the collision or in subse- quent conversations, are admissible evi- dence against the owners of the vessel, on the principle that the declarations of an agent are evidence against his principal. The Manchester, 1 "W. Eob. 62 ; The Virgil, 2 W. Eob. 202. 1487. But declarations of the mate, pilot, or seamen cannot be received, as they are not agents of the owners. The JEuropa, 14 L. T. 66 ; The Midlothian, 15 Jur. 806 ; The Lord Seaton, 2"W. Eob. 391 ; 9 Jur. 603 ; The Foyle, 1 Lushing- ton, 10. Held, however, that the chief engineer's log may be put in evidence for the purpose of contradicting the state- ments of the second engineer on his eross- examination. The Earl of Dumfries, 10 P. D. 31; 54L. J.Adm. 7; 51L.T. 906; 33 W. E. 568 ; 5 Asp. 342. 4. Beyond Pleadings. See c. 34, p. 1601. 5. Variance from Pleadings. Ibid. pp. 1592 and 1600. 6. Answers. 1488. As to the old practice of answers on oath to the pleadings, see tit. Evidence, p. 429. 7. In Cross Actions. See c. 34, p.«L605. 8. In Actions by Default in rem. 1489. In a default action in rem evidence may be given by affidavit. See Ord. XXXVII. r. 2, No. 484. 9. Evidence in particular Actions. See tit. Evidence, pp. 443 — 462. 10. Evidence after Trial. See s. 30, p. 1626. 11. Interrogatories* See tit Evidence, c. 7, p. 424, 1490. and ibid, in Addenda, c. 7. 1491. And as to security for costs in reference thereto, see tit. Costs, No. 203a, p. 363 ; and tit. Evidence, n. la, p. 42p.f 1492. In deciding upon any application for leave to exhibit interrogatories, the court or judge shall take into account any offer which may be made by the party sought to be interrogated, to deliver par- ticulars, or to make admissions, or to produce documents relating to the matter in question, or any of them. Ord. XXXT. r. 2, No. 344. 1493. It is not necessary before the hearing of a summons for leave to deliver interrogatories under this Order to serve the opposite party with a copy of the pro- posed interrogatories. Hall v. Liardet, 17th Nov. 1883. 1494. Upon an application for leave to interrogate, the judge will not decide as to the relevancy of particular interrogatories so long as their general character is not improper, and they may, by possibility, be relevant. Ibid. 1495. Interrogatories as to documents are not generally permissible after an affi- davit of documents has been filed. Robin- son v. Budgett, L. E. "W. N. 1884, p. 94. 1496. An objection to an interrogatory as to documents that an order for discovery of documents has not been obtained, is a good answer. Jacobs v. Great Western Railway Co., 9th Feb. 1884. 1497. For provisions, in any action hy or against a sheriff officially, enabling the court to order the officer actually con- cerned to make the affidavit in answer to interrogatories or to give discovery, see Ord. XXXI. r. 28, No. 370. 1498. For form of order for delivery of interrogatories, see E. S. C. 1883, App.K. No. 16. * (463) See as to interrogatories in the Queen's Bench Division, Wilson's Jud. Acts and Rules, 4th ed. p. 302 et eeq., and Arch- bold's Practice (14th ed. by Chitty), vol. 1, p. 515. •f (464) As to the mode of obtaining payment out of the deposit, see p. 1483. As however this involves an expense of more than nsut the deposit it is probable that some new order thereon will shortly be issued. For the pro- cedure where there has been no taxation, ot costs, see Ord. XXXI. r. 1 of October, 1884. PRACTICE. Pt. II. In the High Court. Cap. 35. 1617 1499. Interrogatories shall be in the form No. 6 in App. B., with such varia- tions as circumstances may require. Ord. XXXI. r. 4, No. 346. 1500. An affidavit in answer to inter- rogatories shall, unless otherwise ordered by a judge, if exceeding ten folios, he printed, and shall he in the form No. 7 in App. B., with such variations as circum- stances may require. Ibid. r. 9, No. 351. 1501. Asolicitor upon whom an order for interrogatories, discovery, or inspection, has been served, and who neglects, with- out reasonable excuse, to give notice to his client is liable to attachment. Ibid. r. 23, No. 365. 1502. As to the use of answers to inter- rogatories at trial, see c. 38, p. 1638. 12. Documentary Evidence. 1503. As to documentary evidence, in- cluding foreign documents, judgments, reports and orders of naval courts, offi- cial logs, ship's logs, light-house and coastguard logs, protests, depositions before the Eeceiver of Wreck, and ship- ping agreements, see tit. Evidence, pp. 430, 442, and Ibid, in Addenda. 13. Discovery* 1504. As to discovery of documents, see tit. Evidence, p. 426, and same cap. in Addenda. 1505. As to costs in reference thereto, see tit. Costs, pp. 386, 387. 1505a. Before moving the court for an order against the opposite party to pro- duce documents, previous application should be made to the opposite solicitor, or the applicant will be condemned in the costs of the motion. The Memphis, L. E. 3 A. & E. 23 ; 3 Asp. 317. 1506. The affidavit in support of the application for discovery of documents must formerly have stated that some one document of those required to be pro- duced is in the possession of the party against whom discovery was sought. The proceeds of The Cordelia, 2 Asp. N.S. 35; and Evans v. Lewis, L. E. 1 C. P. 656. 1507. Eor form of order for affidavit as to documents, see E. S. 0. 1883, App. K. No. 17. 1508. The affidavit, to be made by a party against whom an order of discovery mentioned in Eule 12 has been made, shall specify which, if any, of the docu- ments therein mentioned he objects to produce, and it shall be in the form No. 8 in App. B., with such variations as circumstances may require, Ord. XXXI. r. 13, No. 355. 1509. It shall not be necessary to take an office copy of an affidavit of discovery of documents, and the copy delivered by the party filing it may be used as against such party. Ord. LXV. r. 27, No. 1002, sect. 54. 1510. An affidavit of documents is con- clusive against the party seeking dis- covery, unless it can be shown either from the affidavit itself, or from the documents therein referred to, or from an admission in the pleading of the party swearing the affidavit, that other docu- ments exist in his possession or power which are material and relevant to the action. In any of these instances, but not otherwise, a further affidavit may be ordered. Jones v. The Monte Video Gas Co., 5 Q. B. D. 556. 1511. A plaintiff will not in general be allowed production from a defendant until he has delivered a statement of claim. Cashin v. Craddock, L. E. 2 Ch. D. 140. 14. Production.] 1512. As to production of documents, see tit. Evidence, c. 8, p. 426, and same chapter in Addenda; and as to costs in reference thereto, tit. Costs, c. 28, s. 7 ( (c) & (d) ), pp. 386, 387 ; and as to produc- tion of depositions made before Eeceiver of Wreck, tit. Evidence, c. 10, s. 11, p. 440, and same chapter in Addenda. 15. Enforcing Production of Documents before Trial. 1513. See tit. Evidence, p. 426. 16. Inspection.% 1514. As to inspection of documents, see tit. Evidence, c. 8, p. 426, and same * (465] See as to discovery in the Queen's Bench Division, Wilson's Jud. Acts and Eules, 4th ed., p. 308, and Archbold's Practice (14th ed. by Ohitty), vol. 1, p. 491. t (465a) As to production by order in the Queen's Bench Division, see "Wilson's Jud. Acts and Eules, 4th ed. p. 310. X (466) See as to inspection in the Queen's Bench Division, Wilson's Jud. Acts and Bules, 4th ed. p. 313, and Archbold's Practice (14th ed. by Ohitty), vol. 1, p. 505. 1618 PRACTICE. Pt. II. In the High Court. Cap. 35. cap. in Addenda ; and as to costs in refer- ence thereto, see tit. Costs, c. 28, s. 7 ( (c) and (d) ), pp. 386, 387. 1515. For form of order to produce documents for inspection, see E. S. 0. 1883, App. K. No. 18. 1516. For form of notice to inspect documents, Ibid. App. B. No. 10. 1517. The notice as to the time when documents (an order for production of which has been obtained) may be inspected must be in the form No. 10 in App. B., with such variations as circumstances may require. See Ord. XXXI. r. 17, No. 359. 17. Notices to admit.' 1 ' 1518. See tit. Evidence, p. 429; and as to costs in relation thereto, tit. Costs, p. 386. 1519. A notice to admit documents shall be in the form No. 11 in App. B., with such variations as circumstances may re- quire. Ord. XXXII. r. 3, No. 373. 18. Notices to produce.* 1520. See tit. Evidence, p. 427 ;■ and as to costs in relation thereto, tit. Costs,' p. 386. 1521. A notice to produce documents shall be in the form No. 14 in App. B., with such variations as circumstances may require. See Ord. XXXII. r. 8, No. 378. 1522. Notice to any party to produce any documents referred to in his pleading or affidavits shall be in the form No. 9 in App. B., with such variations as circum- stances may require. See Ord. XXXI. r. 16, No. 358. 19. Notice to admit Facts. 1523. See tit. EviDENCE,-p. 429 ; and as to costs in reference thereto, tit. Costs, p. 386. 1524. A notice to admit facts shall be in the form No. 12, in App. B., with such variations as circumstances may require. See Ord. XXXIII. j. 5, No.. 375. 20. Admissions.^ 1525. See tit. Evidence, p. 429 ; as to costs in reference thereto, see tit. Costs, p. 386 ; and as to admissions" in pleadings, see c. 34, p. 1602. 1526. Any party to a cause or matter may give notice in writing, that he admits the truth of the whole or any part. of the case of any other party. See Ord. XXYTT . r. 1, No. 371. 1527. In an action of salvage where the defendant admits all the facts pleaded in the statement of claim, the plaintiff will not be allowed to call evidence except by permission of the court and on special grounds. The Hardwick, 9 P. D. 32. 21. Admission of Facts. \ 1528. See tit. Evidence, p. 429; and as to costs in reference thereto, tit. Costs, p. 386. 1529. Admissions of facts shall be in the form No. 13 in App. B., with such variations as circumstances may require. See Ord. XXXIII. r. 5, No. 375. 22. Admissions in Pleadings. See c. 34, p. 1602. 23. Copies of Documents. 1530. Where anyparty is entitled to a copy of any deposition, affidavit, proceed- ing, or document filed or prepared by or on behalf of another party, which is not required to be printed, such copy shall be furnished by the party by or on whose behalf the same has been filed or pre- pared. Ord. LXVI. r. 7, No. 1009 (h). 1531. The party requiring any such copy, or his solicitor, is to make a written application to the party by whom the copy is to be furnished, or his solicitor, with an undertaking to pay the proper charges, and thereupon such copy is to be made and ready to be delivered at the expiration of twenty-four hours after the receipt of such request and undertaking, or within such other time as the court or a judge may in any case direct, and is to be furnished accordingly upon demand and payment of the proper charges. Ibid. (i). 1532. In case any party or solicitor who shall be required to furnish any such written copy as aforesaid shall either re- fuse or, for twenty-four hours from the time when the application for such copy has been made, neglect to furnish the same, the person by whom such applica- tion shall be made shall' be at liberty to procure an office copy from the office in which the original shall have been fded, and in such case no costs shall be pay- able to the solicitor so making default * (466a) See as to notices to admit and produce, Arcbbold's Practice (14th ed. by Chitty), vol. 1, p. 479. t (467) See as to admissions, Hid. p. 477. , PRACTICE. Pt. II. In the High Court. Cap. 35. 1619 in respect of the copy so applied for. Ibid. (n). 1533. As to the copies of affidavits to he furnished in the case of an ex parte application for an injunction or writ of ne exeat regno. Ibid. (j). 1534. The note at the foot of every affidavit, stating on whose behalf it is filed, shall be copied on every copy fur- nished to a party. Ibid. (k). 1534a. The name and address of the party or solicitor by whom any copy is furnished is to be indorsed thereon in like manner as upon proceedings in court, and such party or solicitor is to be answerable for the same being a true copy of the original, or of an office copy of the original, of which it purports to be a copy, as the case may be. Ibid. (1). 1535. All accounts, copies, and papers left at chambers shall be written upon foolscap paper bookwise, unless the nature of the document renders it impracticable. Ibid. r. 2, No. 1004. 1536. As to printed copies, see c. 37, p. 1633. 1537. As to printed copies of pleadings, Ibid. ; and as to the delivery thereof, see c. 12, p. 1531. 24. Admission of Proofs from other Actions.* 1538. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the court or a judge, to be obtained at the time of making any such application, and in any other case upon the party desiring to use such evidence giving two days' previous notice to the other parties of his intention to read such evidence. Ord. XXXVII. r. 3, No. 485. 1539. The court cannot, except, by con- sent, order that evidence in an action that has been heard shall be admitted as evidence in an action to be heard. The Demetrius, L. E. 3 A. & E. 523 ; 41 L. J. Adm. 69 ; 26 L. T. 324 ; 20 W. E. 761. 1540. Two actions were instituted in rem by the owners of two ships which had come into collision, and judgment was given. ' Application, that the evidence in those actions should be admitted in an action in personam by the owners of cargo on board one of these ships, refused. Ibid. 1541. In a cause of damage affidavits relative to what transpired at the trial in an action at law between the same parties in respect of damage arising out of the same collision, rejected; the court inti- mating that it could receive no evidence of such a nature as to the occurrences at the trial, and that the only authority to which it could resort, if requiring any such information, would be the notes of the judge who tried the action. The Ann and Mary, 7 Jur. 1001 ; 2 W. Eob. 196. 1542. The High Court of Admiralty may, on the application of the defendant in any cause of damage, and on his insti- tuting a cross cause for the damage sus- tained by him in respect of the same collision, direct that the principal cause and the cross cause be heard at the same time and upon the same evidence. The Admiralty Court Act, 1861 (c. 10), s. 34. ' 1543. After judgment in a cause of damage by collision, proceedings were prosecuted in a cross cause in respect of the same collision. The court ordered all the pleadings and evidence taken in the first cause to be admitted in the cross cause. The North American and the Tech, Carmen, 1 Lushington, 79 ; 5 Jur. N.8. 659. 1544. Prior to the Admiralty Court Act, 1861, the court would not order the pleadings in the principal cause to be used in the cross cause if either party objected. The London, 8th March, 1860. 1545. Cause and cross cause. Order made that the libel in each action should be taken as the defensive allegation in the cross action, and that the witnesses on each libel should be examined in the country at the same time on the same commission by separate examiners. The Gauntlet and Lady Franklin, 17th March, 1854, cited in Coote's Adm. Prac. 30. 1546. Semble, that proceedings in the Ecclesiastical Courts could not be invo- cated but when the cause was between * (468) As to the admissibility in evidence in a subsequent suit of the testimony of wit- nesses taken on oath in a previous suit in which the adverse litigant had the power of cross-examination, when the witness cannot be called in the subsequent suit, and that suit relates to the same subject or involves substantially the same questions, see Peters- dorff's Abridgment (2nd ed.) vol. 4, p. 314, and cases there cited, 1620 PRACTICE. Pt. II. In the High Court. Cap. 35. the same parties or on the same point. Application for proceedings to he in- vocated from another cause, rejected.. Dearie v. Southwell, 2 Lee, 93 (Ecel.). 1546a. As to invocation of proceedings in prize causes, see The Vriendschap, 4 C. Boh. 166; The Nied JElwin, 1 Dodson, 54. 25. Witnesses. (a) Generally. 1547. See tit. Evidence, p. 420. (h) Competency. 1548. See tit. Evidence, p. 421, and same tit. and cap. in Addenda. (c) Nautical Experts. 1549. See tit. Evidence, p. 421. (d) Depositions not to be found. 1550. See tit. Evidence, p. 422. (e) Examination of Witnesses in one part of H.M.'s Dominions in Proceedings in another part. 1551. See tit. Evidence, p. 422. (f) Examination of Witnesses in H.M.'s Dominions in Proceedings in Foreign Courts. 1552. See tit. Evidence, p. 422. (g) Contradicting — . 1553. See tit. Evidence, p. 421, and same tit. and cap', in Addenda. (h) Conviction for Felony or Mis- demeanour. 1554. See tit. Evidence, p. 422, and same tit. and cap. in Addenda. (i) Compelling Attendance of — [(aa) By Order. 1555. See s. 28, p. 1624. (hb) By Subpana. 1556. See s. 32, p. 1630. (k) Costs of, or against — . 1556a. See tit. Costs, p. 416. 26. Examination of Witnesses before Trial* 1557. A defendant in a cause is not hound to examine foreign witnesses by commission or affidavit prior to any evi- dence heing gone into in support of the plaintiff's pleadings, and the necessary expenses incidental to the detention of such witnesses will he allowed if the de- fendant succeeds in the suit. The Kark, 13 W. E. 295. 27. Examination of Witnesses in Court before Trial. 1558. The court or a judge may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath hefore the court or judge or any officer of the court, or any other person and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the court or a judge may direct. See Ord. XXXVII. r. 5, No. 487, and Ord. XXXVIII, r. 1, No. 483. 28. Examination of Witnesses out of Court before Trial.] (a) Generally. 1559. The practice of the court with respect to evidence at a trial, when ap- plied to evidence to he taken before an officer of the court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may he given in any case. Ord. XXXVII. r. 23, No. 505. 1559a. The examination shall tale place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses shall he subject to cross-exami- nation and re- examination. Ibid. r. 11> No. 493. 1560. The practice with reference to the examination, cross-examination, ana re-examination of witnesses at a trial shall extend and be applicable to en- * (469) As to examination of witnesses before trial in the Queen's Bench Division, see Archbold's Practice (14th ed. by Chitty), vol. 1, p. 533. f (469a) As to the old practice in the Court of Admiralty in regard to the examination of witnesses before trial in London, in ™* country, and by commission in this p 01 ™ 1 ? and abroad, see Pritchards' Adm. Dig- \ m ed.) pp. 578—584. PRACTICE. Pt. II. In the High Court. Cap. 35. 1621 deuce taken in any cause or matter at any stage. Ibid. r. 22, No. 504. 1561. For form of order for examina- tion of witnesses before trial, see E. 8. C. 1883, App. K. No. 35. (b) By Commission.* 1562. An order (short order) for a commission to examine witnesses is to be in tbe form No. 36 in App. K., with such variations as circumstances may require. Ord. XXXVII. r. 6, No. 488. 1563. For form of long order for ditto, see E. S. 0. 1883, App. K. No. 37. 1564. For form of praecipe for a com- mission for examination of witnesses, see E. S. C. 1888, App. G-. No. 17. 1565. The writ of commission for ex- amination of witnesses is to be in the form No. 13 in App. J., with such variations as circumstances may require. See Ord. XXXVII. r. 6, No. 488.f 1566. This form includes forms of wit- nesses', commissioners', interpreters', and clerks' oaths. See E. S. C. 1883, App. J. No. 13. 1567. For form of commission to ex- amine witnesses in the Admiralty Divi- sion, see E. S. C. 1883, App. J. No. 14.$ 1568. If in any case the court or a j udge shall so order, there shall be issued a request to examine witnesses in lieu of a commission. The Forms 1 and 2 in the Appendix hereto shall be used for such order and request respectively, with such variation as circumstances may re- quire, and may be cited as Forms 37a and 37b in Appendix K. Ord. XXXVII. r. 6, of Oct. 1884. 1568a. The defendants in a cause of damage moved the court for a commis- sion to be issued to Spain to examine witnesses there as to the law of Spain. The Court of Appeal (affirming the deci- sion of the Court of Admiralty) considered that it would be more satisfactory to have the witnesses in court, and refused to direct the issue of a commission. . The Moxham, 1 P. D. 43, 107 ; 46 L. J. P. D. (C. A.) 17; 3 Asp. N.S. 191. 1569. For provisions enabling the Court of Admiralty in any action to issue special commissions to take evidence upon oath, and for the commissioner, if need be, to make a special report to the court * (470) When it is desired to obtain a com- mission, an order of court for that purpose must be obtained. A praecipe for commis- sion must then be filed, with an adhesive stamp of fifteen shillings thereon; one pound placed on the praecipe for sealing the com- mission. The commission is prepared in the registry, and bears a £1 impressed stamp thereon. It may be obtained after a day's notice. t (471) This might be advantageously used in the Admiralty Division for the examination of witnesses out of the United Kingdom. (472) Commissions for taking evidence out of the United Kingdom are in the Admi- ralty Division generally directed to the British consul or vice-consul of the place where the commission is to be executed, or to both, so that one may act in the place of the other, but commissioners are not selected one by each side according to the practice in the Queen's Bench Division. The appoint- ment of the consul, and the holding of the commission in his office, are less likely to be considered as an infringement of the law of the foreign state forbidding the exercise of judioial powers by other than the judicial officers of the country. (473) In Germany recently the examiner of witnesses, under an order from the English Divorce Court, was arrested and put upon his trial for infringement of the German law in that respect. The rule mentioned in No. 1568, supra, has probably been framed to meet this difficulty. (474) Prior to the E. S. C. 1883, however, evidence has been taken abroad under the authority of commissions, in which exa- miners of the court and other persons have been appointed commissioners, and by exami- ners under orders of court, as in cases of examination of witnesses in this country, and the practice in both respects has received the judge's sanction. (475) It is always advisable, however, to obtain a commission, even though an exami- ner be the commissioner, as such a document is useful for the satisfaction of foreign func- tionaries to whom it may be necessary to apply for assistance indirectly in executing the commission. (476) When an examiner is not appointed commissioner, it is usual to appoint an Eng- lish solicitor or notary public, or an analogous foreign functionary well acquainted with the English language, to act as registrar, actuary or scribe to the commissioner or commission- ers, and to take down the evidence in writing under his or their direction, and prepare the proper return to the commission. % (477) This is the form ordinarily used in the Admiralty Division. (478) When, however, evidence is taken in the United Kingdom by an examiner, it is unnecessary to take out a commission for the purpose, the usual order for taking evi- dence out of court before trial sufficing for the purpose. 1622 PRACTICE. Pt. II. In the High Court. Cap. 35. touching such examination, and the con- duct or absence of any witness or other person relating thereto, see 3 & 4 Yict. c. 65, s. 8. 1570. For provisions enabling any- such co mmi ssioner to require the attend- ance of witnesses, and the' production of any documents, by writs to be issued by him in similar forms to writs of subpoena ad testificandum and of subpoena duces tecum, and providing that every person disobeying the same shall be considered as in contempt of the said Court of Ad- miralty, and punishable accordingly, Ibid. s. 9. 1571. By the practice in the Court of Admiralty the commission to examine witnesses runs jointly and severally, and if one commissioner absented himself, the other proceeded alone. The Ceres, 3 C. Bob. 128. (c) By Examiners, fyc. (aa) Generally.* 1572. For form of order for commis- sion to examine witnesses before an examiner before trial, see E. S. C. 1883 App. K. No. 35.f 1 572«.. The examination shall take place in the presence of the parties, their coun- sel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination. Ord. XXXYII. r. 11, No. 493. 1573. An examiner's office is not a public court. Re Western of Canada Oil Co., 6 Ch. D. 109 ; and see Re Cambrian Co., 51 L. J. Ch. 221. 1574. Any officer of the court, or other person directed to take the examination of any witness or person, may administer oaths. Ord. XXXVII. r. 19, No. 501. * (479) As to the examiners in the Admi- ralty Division, see Pt. I., note 27, p. 1471. (480) The solicitor whose witnesses are to be examined selects the examiner. (481) The understanding in the profession used to be that the adverse solicitor is en- titled to object to a witness being examined in London out of office hours, i. e., before 10 a.m. or after 4 (now 6) p.m. ; but the practice is frequent to examine witnesses after those hours, and at any time convenient to all parties. Concession on the part of solicitors is in such matters desirable, as, to nautical witnesses, delay is often productive of the greatest inconvenience, and the adverse solicitor may, when he has witnesses to exa- mine, be in need of similar indulgence from his opponent. (482) The examiner, before commencing the examination of a witness, administers to him the usual oath of a witness. (483) The statutory declaration may be substituted for this oath in the cases allowed by act of parliament, as to which see s. 33, p. 1631. (484) In the event of the examiner being impeded or interfered with in the examina- tion of a witness, he should make complaint thereon to the registrar in the first instance, and through him. to the judge. (485) The counsel, solicitors, and substitutes on both sides may make notes of the evidence as the examination proceeds. (486) In London the solicitor producing the witness is entitled, at the completion of his deposition in chief, to require that the witness be dismissed if the adverse solioitor or his counsel is not then prepared to cross- examine him. (487) It was not necessary in the Court of Admiralty to sue out any commission for examination of witnesses ; but any examiner of the court had the same power as commis- sioners under commissions to take evidence. See the Admiralty Court Act, 1854 (c. 78), s. 6. (488) If the solicitor on either side has witnesses to be examined who cannot from illness or age attend in London for the pur- pose, and whom he therefore desires should be examined where they are residing or stay- ing, he should apply for an order of court for that purpose. (489) If the evidence is to be taken by an examiner, an office copy of the order of court is obtained from the registry, and an appoint- ment made with the examiner and adverse solicitor as to the time and place at which the examination of witnesses is to be commenced. (490) The evidence of the witnesses is taken at an hotel or in any private room accessible to all parties interested, and selected by the solicitor producing the witnesses. (490a) The examination should be com- menced on the day named in the commission, and the execution of the commission may be proceeded with whether the adverse solicitor is present or not. (491) In cases of examination of witnesses in the country, the adverse solicitor, should he require time to collect materials for cross- examination, is entitled to object to a witness being dismissed until after the expiration of forty-eight hours from the time of his being sworn. (492) Either solicitor may object to the examination of another witness being com- menced until the examination of the previous witness has been concluded, the objecting solicitor not being the cause of the delay. t (493) In the Admiralty Division, how- ever, the depositions so taken are not filed in the Central Office but in the Admiralty Be- gistry, and the office copy of them is obtained from that registry. , (493a) The depositions so taken may be reaa at the trial without proof of the absence oi the witness. PRACTICE. Pt. II. In the High Court. Cap. 35. 1623 1574a. As to the oaths or affirmations to be administered by him, see sect. 33, p. 1631. 1575. For the rules as to the examina- tion of witnesses [semble) in the Chancery Division by the examiners of that division according to a rota, the duties of their clerks in reference thereto, and to such rota, the appointment of time and place to be given by the examiner, and the transference of the examination from one examiner to another, see R. 8. 0. of February 4, 1884, as altered by E. S. C. of Oct. 1884. (bb) Supply of Writ and Pleadings to Examiner. 1576. Where any witness or person is ordered to be examined before any officer of the court, or before any person ap- pointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the writ and pleadings, if any, or with a copy of the documents necessary to inform the per- son taking the examination of the ques- tions at issue between the parties. Ord. XXXVII. r. 10, No. 492.* (cc) In Shorthand.^ (dd) By Narration in the First Person.^ 1577. The depositions taken before an officer of the court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, not ordi- narily by question and answer, but so as to represent as nearly as may be the statement of the witness, and when com- pleted shall be read over to the witness and signed by him in the presence of the parties, or of such of them as may think fit to attend. If the witness shall refuse to sign the depositions, the examiner shall * (494) This is usually a print of the pleading for the party on whose behalf the witness is examined. If the pleading has not been printed, a MS. copy will suffice. f (495) The practice of taking down in shorthand evidence given before an examiner has been found so much more expeditious than when the evidence is transcribed by the examiner himself, that it has become the general mode adopted in the Admiralty Divi- sion in examining witnesses before trial in London and the neighbourhood. (495a) The court shorthand writers are employed in taking the evidence. See The Marietta, 25 April, 1883. (496) They are Messrs. Carruthers and Bamet, of No. 203, Strand. (496a) If, however, the examiner has a private shorthand clerk, he is at liberty to employ him. (497) The shorthand writer must, before commencing his duties in each cause, bo sworn by the examiner faithfully to take down the evidence in shorthand. (497a) The shorthand writer takes down and transcribes both question and answer exactly as expressed by counsel and the witness. (498) When an interpreter is employed, the shorthand writer takes down the answer of the interpreter in lieu of that of the witness. (498a) When the evidence is taken in shorthand, it is not read over to nor signed by the witness, nor. by the interpreter, if any. (499) The shorthand writer afterwards transcribes the evidence so taken, and certi- fies at the foot that it is a faithful transcript of the evidence. (499a) He transmits the transcript to the ex- aminer, who files it with his report or return. X (500) Whether the examiner or counsel conducts the examination-in-chief, the exa- miner takes down the witness's answer to each question put to him, and does so as nearly as possible in the witness's own words, but in a narrative form, embodying the question in the answer. (500a) The evidence-in-chief of each wit- ness, as it is taken down by the examiner, was, according to the old practice, divided and numbered similarly to the articles of the pleading on which he was examined. (501) When the examination-in- chief has been completed, the examiner reads over to the witness the answers he has taken down, and procures his signature at the end of that part of the deposition, and, according to the old practice, also at the end of each preced- ing sheet thereof. (501a) The same course is pursued on the cross-examination and re-examination. (502) In the cross-examination the exa- miner, in taking down the evidence, embodies the question in the answer. (502a) On reading over to the witness his deposition, the examiner makes such slight alterations therein as the witness may desire. If, however, the witness desires to make material alterations in his evidence, and the examiner is satisfied that he did not mis- apprehend the witness's meaning in the first instance, it is the examiner's duty to decline to permit such alterations to be made in the body of the evidence, but to put in writing at the end of the deposition-in-chief, or on cross-examination or re-examination, as the case may be, the alteration the witness desires to make therein. The witness then signs his name at the end of his deposition, and, ac- cording to the old practice, also at the end of each of the preceding sheets thereof. 1624 PRACTICE. Pt. II. In the High Court. Cap. 35. sign the same. The examiner may put down any particular question or answer if there should appear any special reason for doing so, and may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Ord. XXXVII. r. 12, No. 494. (ee) By Interpretation* (ff) Objections to Questions. . 1578. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question. Ibid. (gg) Objections by Witness. 1579. If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if, having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed at the Central Office, and thereupon the party requiring the attendance of the witness may apply to the court or a judge ex parte or on notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be. Ibid. r. 13, No. 495. 1580. If any witness shall object to any question which may be put to him before anexaminer, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and -trans- mitted by him to the Central Office to be there filed, and the validity of the objec- tion shall be decided by the court or a judge. Ibid. r. 14, No. 496. 1581. In any case under the two last preceding rules, the court or a judge shall have power to order the witness to pay any costs occasioned by his refusal or objection. Ibid. r. 15, No. 497. (hh) Orders enforcing Obedience of Witness.^ 1582. The court or a judge may, in any cause or matter at any stage of the pro- ceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order which the court or judge may think fit to be produced, provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial. Ibid. r. 7, No. 489. 1583. Any person wilfully disobeying any - order requiring his attendance for the purpose of being examined or pro- ducing any document shall be deemed guilty of contempt of court, and may be * (503) If any or all of the witnesses are unacquainted with the English language, and speak a foreign language, the solicitor whose witnesses are to be examined selects some gentleman conversant with that lan- guage to act as interpreter between the wit- ness and the examiner. (503a) The interpreter must of course be a person wholly uninterested in the cause. If otherwise, the adverse solicitor may object to his acting as interpreter. (504) The interpreter must, before com- mencing his duties, be duly sworn by the examiner as to his being well acquainted with the language he is to interpret, and faithfully to interpret the same. (504a) The adverse solicitor may, if dissatis- fied with the interpreter, require the witness to be cross-examined through the medium of an interpreter nominated by him, the adverse solicitor. (505) That interpreter must of course also be wholly disinterested in the result of the suit, or he maybe objeoted to by the solicitor producing the witness, and he must be duly sworn. (506) The cross-examination of a witness by a different interpreter is, however, an un- usual and invidious course of proceeding, rarely acted on, except under special circum- stances. (507) "When the evidence is taken by in- terpretation the interpreter should, as well as the witness, sign the deposition, describing himself as " sworn interpreter." (508) Such of the evidence as is taken by interpretation should be specified accordingly in the exa min er's return, which should state who was the interpreter, and that he was first duly sworn. t (509) Subpoenas may, when required, be obtained in the registry, to compel the attend- ance of witnesses before an examiner or com- missioner, and the costs of such subpoenas, when necessary, are generally allowed as of course. (509a) For cases under the old practice of compelling the attendance of persons who had refused to make affidavits, see The Glory, 7 Notes of Oases, 262 ; and of enforcing the attendance of witnesses for cross-examination on their affidavits, see The Besultatet, 17 Jur. 353. PRACTICE. Pt. II. In the High Court. Cap. 35. 1625 dealt with accordingly. Ibid. r. 8, No. 490. 1584. Any person required to attend for the purpose of being examined or of producing any document, shall be en- titled to the like conduct money and pay- ment for expenses and loss of time as upon attendance at a trial in court. Ibid. r. 9, No. 491. 1585. A witness subpoenaed to attend and be examined in open court did not attend on the day appointed. On the same day, on the motion of the party subpoenaing him, founded on an affidavit that the witness was wilfully absenting himself, and that the vessel on board which he was serving was about to sail, the court granted an attachment against him. The Victor, No. 1194, 1st March, 1864. (ii) Transmission of Depositions.* 1586. "When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the central office, and there filed. Ord. XXXVII. r. 16, No. 498. (kk) Examiner's Report.^ 1587. The person taking the examina- tion of a witness under these rules may, and if need be shall, make a special re- port to the court touching such examina- tion and the conduct or absence of any witness or other person thereon, and the court or a judge may direct such proceed- ings and make such order as upon the report they or he may think just. Ibid. r. 17, No. 499. (11) Examiner's Fees.% 1588. For the examiner's fees {semble) * (510) The examiner files the transcript or depositions in the Admiralty Registry, and pays the necessary stamps on filing the tran- script or depositions, as the case may be, and his report, and charges them in his account against the solicitor who employed him. For the stamps upon the transcript, or depositions when not taken in shorthand, and on the ex- aminer's report, see note 519, infra. (511) The examiner retains the custody of the original depositions until filed in the registry. t (512) The examiner's report is headed with the title of the cause, and states that on such a day and, if out of London, at such a place, in the presence of the counsel and soli- citors of the parties, he administered the usual oath of a witness to the several witnesses examined before him, stating their names, and caused them to be duly examined and cross- examined on behalf of the respective parties, and that the document marked A is the tran- script of such evidence taken down in shorts hand by the shorthand writer, to whom he states he had previously administered an oath, faithfully to take down the evidence in shorthand, and faithfully to transcribe the same. (513) If any witnesses are examined by interpretation, the examiner mentions their names and that they were examined by in- terpretation through the assistance of , the interpreter, to whom, as he therein states, he had first administered an oath that he was well acquainted with the English and (the language of the witness) languages, and faithfully to interpret. (514) Where the examiner takes down the evidence, he states that he transmits with his report the depositions of the several witnesses he has examined and cross-examined. (515) He may add any special matter oc- curring in tlje course of the proceedings. (516) Any objections taken to the pro- ceedings, or any part thereof, may, on the application of either solicitor, be also re- corded there. (517) The report is dated and signed by the examiner. (518) The examiner's report is much the same on executing a commission for the examination of witnesses, except that he there mentions place as well as time, and transmits the commission with the other papers. % (518a) The examiner's and commis- sioner's fees are : — For examining witnesses viva voce ( o 2 on a pleading, according to the < ^ length of time occupied per day I 4 4 q If the examination takes place at a greater distance than three miles from the General Post Office, London, the examiner or com- missioner will be entitled in ad- dition to his proper and reason- able expenses for travelling, board, and maintenance. For drawing and engrossing a re- turn of the witnesses examined in London - - - - 1 1 For drawing and engrossing a re- turn of the witnesses examined under a commission - - 110 The above are the fees allowed by the Rules and Orders of November, 1859, now an- nulled, but they continue to be taken and allowed. 5 si 1626 PRACTICE. Pt. II. In the High Court. Cap. 35. in the Chancery Division, see Appendix toE. 8. C. of 18 Dec. 1885. (mm) Before the Judicature Acts. 1589. In a cause of damage by collision, before appearance of defendant -witnesses were allowed to be examined on proof that the ship was about to sail for Syria. She sailed in fact, and no opportunity was given to cross-examine. The court allowed the defendant to examine his witnesses, but ordered that the cause should not be heard till the plaintiff should have submitted his witnesses for cross-examination. The Chance, Swabey, 294 ; 30 L. T. 219 ; 6 W. R. 221. 1590. Where there is reason to expect that the plaintiff's witnesses, whose evi- dence may be desirable, will not be acces- sible at a future period, their evidence may be taken, and the costs of taking them will be allowed, though the de- fendants afterwards admit the plaintiff's pleadings. The Spirit of the Age, Swabey, 209. 29. Examination of Witnesses at Trial. 1591. See c. 38, p. 1637. 30. Examination of Witnesses after Trial. 1592. Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial. Ord. XXXVII. r. 21, No. 503. 1593. The practice as to evidence at a trial, when applied to evidence to be taken before an officer of the court or other per- _ son in any cause or matter after the hear- ing or trial, shall be subject to any special directions which may be given. Ibid. r. 23, No. 505. 1594. All evidence taken at the trial may be used in any subsequent proceed- ings in the same matter. Ibid. r. 25, No. 507. 31. Affidavits. (a) Generally.*. 1595. The court or a judge-may receive any affidavit sworn for the purpose of being used in any cause or matter, not- withstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been^so received. Ord. XXXVIII. r. 14,- . No. 534. 1596. An ignorant seaman made an affidavit in a cause, and afterwards was prevailed upon by the opposite party to make another affidavit denying his former testimony. The court attached no credit whatever to his second statement. It is well known how men of this class may be practised upon. The Commerce, 3 W. Eob. 295. (b) Preparation. 1597. Affidavits shall be confined. to such facts as the witness is able of his own knowledge to prove, except on inter- locutory motions, on which statements as to his belief, with the groun ds th ereof; may be admitted, Ord. XXXvTEI. r. 3, No. 523. 1598. Every affidavit shall be intituled in the cause or matter in which it is sworn ; but in every case in which there are more than one plaintiff or defendant. The registrar also allows a fee of six shillings and eightpence to the examiner when a witness does not attend pursuant to an appointment with the examiner for his examination. Mem. of 14 February, 1S70. The examiner is also allowed a fee of one shilling and sixpence for the oath to each witness, ibid. ; and a fee of two shillings and sixpence for a certificate on each exhibit. (519) The examiner places an adhesive stamp of five shillings on the deposition of each witness or on the transcript thereof from shorthand. The stamp is placed in the mar- gin against the name of the witness at the commencement of the depositions. The examiner also places an adhesive stamp of five shillings on the return. The examiner charges for and is allowed these stamps. The examiner makes no charge for filing the depositions. No stamp is required on the minute on filing them. . As to deposit of stamps for fees and money for expenses and undertaking for fees wen required, see E. S. 0. Fees, 1884,'Sched. No. 51 - " , „ .„ * (519a) As to affidavits in the Queens Bench Division, see Archbold's' Praotice (14th ed. by Chitty), vol. 1, p. 453. . (520) For the old practice in Admiralty s» to affidavits, see The Speed, 7 Jur. 1069; ' Notes of Oases, 230; The Gauntlet, 3VJ-W<>- 95. PRACTICE. Pt. II. In the High Court. Cap. 35. 1627 it shall be sufficient to state the full name of the first plaintiff or defendant respec- tively, and that there are other plaintiffs or defendants, as the case may be ; and the costs occasioned by any unnecessary prolixity in any such title shall be dis- allowed by the taxing officer. Ibid. r. 2, No. 522. 1599. Every affidavit shall state the description and true place of abode of the deponent. Ibid. r. 8, No. 528. 1600. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every affidavit shall be written or printed book- wise. No costs shall be allowed for any affidavit or part of an affidavit substan- tially departing from this rule. Ibid. r. 7, No. 527. 1601. Any affidavit may be sworn to either in print or in manuscript, or partly in print and partly in manuscript. Ord. LXYI. r. 4, No. 1006. (c) Scandalous or Irrelevant Matter. 1602. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. Ord. XXXVIII. r. 3, No. 523. 1603. The court or a judge may order to be struck out from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client. Ibid. r. 11, No. 531. (d) Interlineations and Alterations. 1604. No affidavit having in the jurat or body thereof any interlineation, altera- tion, or erasure, shall without leave of the court or a judge be read or made use of in any matter depending in court unless the interlineation or alteration (other than by erasure) is authenticated by the ini- tials of the officer taking the affidavit, or, if taken at the Central Office, either by his initials or by the stamp of that office, nor in the case of an erasure, un- less the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and signed or initialled in the margin of the affidavit by the officer taking it. Ibid. r. 12, No. 532. 1605. The court or a judge may receive any affidavit sworn for the purpose of being used in any cause or matter, not- withstanding any defect by misdescrip- tion of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memo- randum to be made on the document that it has been so received. Ibid. r. 14, No. 534. 1 606. Every alterationin an account veri- fied by affidavit to be left at chambers shall be marked with the initials of the com- missioner or officer before whom the affi- davit is sworn, and such alterations shall not be made by erasure. Ibid. r. 22, No. 542. (e) -Swearing. (aa) Generally. 1607. No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or corre- spondent of such solicitor, or before the party himself. Ibid. r. 16, No. 536. 1608. Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn be- fore his clerk or partner. Ibid. r. 17, No. 537. , (bb) Exhibits. 1609. Accounts, extracts from parish registers, particulars of creditors' debts, and other documents referred to by affi- davit, shall not be annexed to the affi- davit, or referred to in the affidavit as annexed, but shall be referred to as ex- hibits. Ibid. r. 23, No. 543. 1610. Every certificate on an exhibit referred to in an affidavit signed by the commissioner or officer before whom the affidavit is sworn, shall be marked with the short title of the cause or matter. Ibid. r. 24, No. 544. See also No. 1606, supra. (cc) Jurats. 1611. Every commissioner to administer oaths shall express the time when and place where he takes the affidavit, or it cannot be filed without leave. Ibid. r. 5, No. 525. 1612. Where made by two or more de- ponents, the names of each must be in- serted in the jurat ; but if the affidavit of all the deponents is taken at one time by the same officer it is sufficient to state that it was sworn by both (or all) of the "above- 5m2 1628 PRACTICE. Pt. II. In the High Court. Cap. 35'. named" deponents. Or'd. XXXVIII. r. 9, No. 529. 1613. See also No. 1604, supra. (dd) Illiterate or Blind Persons. 1614. Where an affidavit is sworn by any person who appears to the officer taking the affidavit to he illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the pre- sence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the court or a judge is otherwise satisfied that the affidavit was read over to and appeared to be per- fectly understood by the deponent. Ibid. r. 13, No. 533. (ee) Oaths. See s. 33, p. 1631. (f) Cross-Examination* 1615. The court or a judge may, on the application of either party, order the at- tendance for cross-examination of the per- son making any affidavit upon any motion, petition, or summons. Ibid. r. 1, No. 521. 1616. "When evidence is taken by affi- davit, any party desiring to cross-examine a deponent who has made an affidavit for the opposite party may serve upon that party a notice in writing to produce the deponent for cross-examination at the trial, such notice to be served before the expiration of fourteen days from the time allowed for filing affidavits in reply, or within such time as the court or judge may appoint ; and unless the deponent is produced accordingly, his affidavit shall not be used unless by special leave. Ibid. r. 28, No. 548. 1617. The party receiving the notice is entitled to compel the attendance of the deponent for cross-examination like an ordinary witness. Ibid. r. 29, No. 549. 1618. As to subpoena to compel the wit- ness' attendance, see s. 32, p. 1630. (g) Filing—. 1619. Every affidavit or other proof used in Admiralty actions shall be filed in the Admiralty Begistry. Ibid. r. 10, No! 530. 1620. Every affidavit used in a cause or matter proceeding in a district registry shall be filed there. Ibid. 1621. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the court or a judge. Ibid. r. 18, No. 538. 1 622. Except by leave of the court or a judge, no order made ex parte in court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied for, and pro- duced or filed at the time of making the motion. Ibid. r. 19, No. 539. 1623. There shall be appended to every affidavit a note showing on whose behalf it is filed, and no affidavit shall be fded or used without such note, unless the court or a judge shall otherwise direct. Ibid. r. 10, No. 530; and Ord. LXTI. r. 7, No. 1009 (k). (h) Stamps. 1624. Where an original affidavit is allowed to be used, it must first he stamped with a proper filing stamp. See Ord. XXXVIII. r. 15, No. 535. 1625. The stamp on filing each affidavit is five shillings. It is an adhesive stamp. See S. C. Fees, 1884, No. 35. (i) Proof by— . (aa) Generally. 1626. The court or a judge may for sufficient reason order that any fact or facts may be proved by affidavit. Ord. XXXVII. r. 1, No. 483. 1627. Upon any motion, petition, or summons, evidence may be given by affi- davit. Ord. XXXVIII. r. 1, No. 521. 1628. Where it appears that the other party bond fide desires the production for cross-examination of a witness who can be produced, an order shall not be made authorizing the evidence of such '^tafss to be given by affidavit. Ord. XXXVII. r. 1, No. 483. 1629. See also No. 1622, supra. 1630. The court will not receive, on the mere affidavit of the defendant, facW which might be a bar to the action, bucn * (521) For the old practice under 3 & 4 Vict, c, 65, s. 7, see The Sesultatet, 17 Jur. 353; The Prince of Wales, 12 Jur. 163; 6 Notes of Cases, 39 ; The Glory, 13 Jur. 991 i 3 W. Bob. 187 ; 7 Notes of Oases, 262; i» Ripon, 6 Notes of Oases, 247. PRACTICE. Pt. II. In the High Court. Cap. 35. 1629 an affidavit rejected. The Lord Hobart, 2 Dodson, 101. (bb) In Default Actions. 1631. In default actions in rem, evi- dence may be given by affidavit. Ord. XXXVII. r. 2, No. 484. 1632. E. S. C. 1883, No. 550, that in cases of trial by affidavit the evidence stall be printed and notice of trial given, as therein mentioned, does not apply to default actions in rem. Ord. XXXVIII. r. 30, No. 550. (j) Trial by—. (aa) Generally* 1633. Subject as therein mentioned, the court or a judge may in any cause or matter, and at any time, or from time to time, order that different questions of fact arising therein may be tried by different modes of trial. Ord. XXXVI. r. 8, No. 432. 1634. No affidavit filed or made before issue joined is, without special leave, to be received at the trial, unless, within one month after issue joined, or such longer time as may be allowed by special leave, notice in writing thereof has been given to the opposite party. Ord. XXXVII. r. 24, No. 506. (bb) Time of Delivery. 1635. Within fourteen days after a consent for taking evidence by affidavit as between the parties has been given, or within such time as the parties may agree upon, or the court or a judge may allow, the plaintiff shall file his affidavits and deliver to the defendant or his solici- tor a list thereof. Ord. XXXVIII. r. 25, No. 545. 1636. The defendant, within fourteen days thereafter, or such other time as aforesaid, shall file his affidavits and deliver to the plaintiff or his solicitor a list thereof. Ibid. r. 26, No. 546. 1637. Within seven days thereafter, or such other time as aforesaid, the plain- tiff shall file his affidavits in reply, which are to be strictly confined to matters in reply, and shall deliver to the defendant or his solicitor a list thereof. Ibid. r. 27, No. 547. 1638. When the evidence under this order is taken by affidavit, such evidence shall be printed, and the notice of trial shall be given at the same time kfter the close of the evidence as in other cases is by these rules provided after the close of the pleadings: provided that other affidavits may be printed if all the parties interested consent thereto, or the court or a judge so orders; provided also, that this rule shall not apply in the Probate, Divorce, and Admiralty Division to de- fault actions in rem, or references in actions, or actions for limitation of liability, unless the court or a judge shall otherwise order. Ibid. r. 30, No. 550. (cc) Terms of Admission of Affidavits at Trial. See c. 38, p. 1641. (k) Use of Original. (aa) Generally. 1639. In cases in which by the present practice an original affidavit is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall, at the time when it is used, be delivered to and left with the proper officer in court, or in chambers, who shall send it to be filed. Ibid. r. 15, No. 535. (bb) In Chambers. 1640. All affidavits previously read in court in any proceeding may be used before the judge in chambers. Ibid. r. 21, No. 541. (cc) Use of Office Copies. 1641. An office copy of an affidavit may in all cases be used, the original affidavit having been previously filed, and the copy duly authenticated with the seal of the office. Ibid. r. 1 5, No. 535. 1642. In cases in which an original affidavit can be used, and to which Ord. XXXVIII. r. 15 applies, it is not neces- sary to take an office copy. Ord. LXV. r. 27, No. 1002, sub-r. 53. (1) Copies. See s. 23, p. 1618. * (522) For cases under the old practice as to whether the mode of taking the evidence should be by affidavit or viva voce, see The Earl Bathurst, 3 Notes of Cases, 446 ; The Baldur, 16 Jur. 802; TheSwanland, 2 Spinks' Eccl. & Adm. Eep. 107 ; Fyhr v. Fyler, ibid. 69 ; The Oliver Cromwell, March 8, 1860 : The Argo (Noa. 110 and 156), May 10, 1860 : The Glory. 3 W. Rob. 187 ; 7 Notes of Cases, 262 ; 13 Jur. 991 ; 3 & 4 Vict. c. 65, s. 7 ; and Pritchards' Adm. Digest (2nd ed.), p. 589. 1630 PRACTICE. Pt. II. In the High Court. Cap. 35. 32. Subpoenas, (a) Generally.* 1643. .Every subpoena other than a sub- poena duces tecum shall contain three names where necessary or required, but may contain any larger number of names. Ord. XXXVII. r. 29, No. 511. 1644. No more than three persons shall be included in one subpoena duces tecum, and the party suing out the same shall be at liberty to sue out a subpoena for each person if it shall be deemed necessary or desirable. Ibid. r. 30, No. 512. 1645. The party to whom such notice has been given to produce a deponent to an affidavit, in order to his being cross- examined, as mentioned in r. 28, No. 548, is entitled to compel the attendance of the deponent for cross-examination in the same way as he might compel the attend- ance of a witness to' be examined. Ord. XXXVIII. r. 29, No. 549. 1646. No subpoena for the payment of costs shall be issued. Ord. XLIII. r. 7, No. 619. (b) Praecipe. 1647. For f orm of praecipe f or subpoena, see E. S. 0. 1883, App. G., No. 21. 1648. Where it is intended to sue outa subpoena, a praecipe for that purpose, in the Form No. 21, in Appendix G., and containing the name or firm and the place of business or residence of the solicitor intending to sue out the same, and, where such solicitor is agent only, then also the name or firm and place of business or re- sidence of the principal solicitor, shall in all cases be delivered and filed at the Central Office. Ord. XXXVII. r. 26, No. 508. (c) Forms. 1649. A writ of subpoena shall be in one of the Forms 1 to 7 in Appendix J., with such variations as circumstances may re- quire. Ibid. r. 27, No. 509. (d) Period in force. 1650. Subpoenas remain in force only till the end of the sitting or assize for which they were issued. A new writ must afterwards be issued or the former writ may be (at the option of the parties) altered as to date and sitting, or assize, and re-issued as a new writ. See 0. O. Prac. Eules, 1880—82, in Wilson's Jud. Acts and Eules, 4th ed. p. 848. (e) Amendment. 1651. In the interval between the suing out and service of any subpoena the party suing out the same may correct any error in the names of parties or wit- nesses, and may have the writ re-sealed upon leaving a corrected praecipe of such snbpcena marked with the words " altered and re-sealed," and signed with the name and address of the solicitor suing out the same. Ord. XXXVII. r. 31, No. 513; and see 0. 0. Prac. Eules, 1880—82, in Wilson's Jud. Acts and Eules, 4th ed. p. 848. (f) Service. See e. 12, p. 1530. (g) For Examination of Witnesses before Trial. 1652. Where a subpoena is required for the attendance of a witness for the purpose of proceedings in chambers, such subpoena shall issue from the Cen- tral Office upon a note from the judge. Ord. XXXVII. r. 28, No. 510 * 1653. Any party in any cause car matter may by subpoena ad testifieandm or duces tecum require the attendance of any witness before an officer of the court, or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and he examined at the hearing or trial; and any party or witness having made an affidavit to be used, or which shall he used on any proceeding in the cause or matter, shall be bound on being served with such subpoena to attend before Biich officer or person for cross-examination. Ibid. r. 20, No. 502, and see Ibid. Nos. 489. 490, p. 1624. (h) In Interpleader Issues. 1654. A subpoena in an interpleader issue should be headed in the title of the original action, and in the title of the interpleader issue, and should be applied for in, and issued out of, the room nt which the writ of summons in the ori- ginal action was issued. Sea 0. 0. Prac. Eules, 1880—82, in Wilson's Jud. Acts and Eules, 4th ed. p. 848. * (523) All subpoBnas in Admiralty actions are issued from the Admiralty Eegistry, and not from the Central Office. (524) As to subpoenas in the Q»eens Bench Division, see Archbold's Pracfaoe (14th ed. by Ohitty), vol. 1, pp. 560 et iq- PRACTICE. Pt. II. In the High Court. Cap. 35- 1631 33. Oaths. (a) Generally.* 1655. Every person who, at the com- mencement of this act, is authorized to administer oaths in any court whose juris- diction is therehy transferred to the High Court of Justice, is a commissioner to administer oaths in all causes and matters in the High Court and Court of Appeal. The Supreme Court of Judicature Act, 1873 (c. 66), ss. 77, 82. 1 656. Any officer of the court, or other person directed to take the examination of any witness or person, may administer oaths. Ord. XXXVII. r. 19, No. 501. 1657. The taxing officers of the Su- preme Court, or any division thereof, shall, for the purposes of any proceedings before them, have authority to administer oaths. Ord. LXV. No. 1002, sub-r. 25. 1658. Every master and every first and second class clerk in the Filing and Record Department, have authority to take oaths and affidavits in the Supreme Court. Ord. LXI. r. 5, No. 898. 1 659. Affidavits sworn in England shall be sworn before a judge, district regis- trar, commissioner to administer oaths, or officer empowered under these rules to administer oaths." Ord. XXXVIII. r. 4, No. 524. 1660. No affidavit is sufficient if sworn before the party on whose behalf it is used, his solicitor, partner, clerk, agent, or correspondent. Ibid. r. 16, Nos. 536, 537. 1661. As to the appointment of com- missioners to administer oaths, see Pt. I. c. 4, p. 1472. 1661a. As to oaths administered to per- sons in the form they declare binding, being binding on them, see 1 & 2 Vict. c. 105. (b) Affirmations and Declarations. 1662. If any person called to give evi- dence in any court of justice objects to take an oath, or is objected to as incom- petent to take an oath, such person shall, if the judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the promise and declaration therein mentioned ; and if any person who has made the same wilfully and corruptly gives false evidence he shall be liable to be convicted for perjury. The Evidence Further Amendment Act, 1869 (c. 68), s. 4. 1663. See also as to declarations by other persons objecting to take an oath, or objected to as incompetent to take an oath, Ibid. 1870 (c. 49), s. 1. 1664. See further as to declarations and affirmations in lieu of oaths, 5 & 6 Will. 4, c. 62, and The Common Law Procedure Act, 1854 (c. 125), s. 20. (c) Out of England. 1665. All examinations, affidavits, de- clarations, and affirmations in the High Court may be sworn and taken in Scot- land, Ireland, the Channel Islands, or any -colony or place under the dominion of her Majesty in foreign parts, before any judge, court, notary public, or per- son authorized to administer oaths there, or before any of her Majesty's consuls or vice-consuls out of her dominions ; and the judges and other officers of the High Court shall take judicial notice of the seal or signature of such functionaries. Ord. XXXVIII. r. 6, No. 526. 1666. Every British ambassador, envoy, minister, charge d'affaires, or secretary of embassy or of legation, exercising his functions in any foreign country, and every British consul-general, consul, vice, acting or pro-consul, or consular agent exercising his functions in any foreign place may administer there any oath or affirmation, and do and perform every notarial act. See 6 Geo. 4, c. 87, s. 20 ; and 18 & 19 Vict. c. 42, s. 1. 1 667. Any document purporting to have affixed, impressed, or subscribed thereon or thereto the seal and signature of any British ambassador, envoy, minister, charge d'affaires, secretary of embassy or of legation, consul-general, consul, vice, acting, or pro-consul or consular agent, in testimony of any such oath, affidavit, affirmation, or act having been administered, affirmed, or done by or before him under this act, shall be ad- mitted in evidence, without proof of the seal and signature being those of the * (524a) As to the persons before whom answers, affidavits, depositions, declarations and affirmations in the Court of Admiralty might, prior to the Judicature Acts, be sworn or made, see the Admiralty Court Act, 1854 (c. 78), ss. 8, 11. (525) As to oaths, see Archbold's Practice (14th ed. by Chitty), vol. 1, p. 466. (525a) The registrar and deputy registrar of the Court of Admiralty had power to ad- minister oaths in .that court, an! to exercise the same powers as any surrogate in cham- bers. See the Admiralty Court Act, 1861 (c. 10), ss. 25, 26. 1632 PRACTICE. Pt. II. In tlie High Court. Caps. 36/37- person they purport to be, or of the official character of such person. See 18 & 19 Yict. c. 42, s. 3. 1668. The consular officer therein men- tioned may, in any proceeding under this act relating to salvage, take affidavits and receive affirmations. See the M. S. Act, 1854 (c. 104), s. 487. (d) House of Lords. 1669. Affidavits taken by officers of the High Court of Justice of England or Ireland, authorized to take oaths, or in Scotland by a justice of the peace, are received in the House of Lords. See Form of Appeal, Method of Procedure, and Standing Orders of the House, of June, 1883, p. 4, n. 1670. As to oaths administered out of the United Kingdom, see Nos. 1665 — 1668, supra. (e) Privy Council. 1671. As to the powers of the Judicial Committee of the Privy Council, and their registrar or acting registrar, to administer oaths and affirmations, see 6 & 7 Vict. c. 38, s. 2, and 16 & 17 Vict. c. 85. (f) Court of Appeal. 1672. Affidavits taken by officers of the High Court authorized to take oaths in that court are received in the Court of Appeal. 1673. As to oaths administered out of the United Kingdom, see Nos. 1665 — 1668, supra. 36. View. 1674. As to view, see tit. Evidence, c. 6, p. 424 ; Ibid, in Addenda; and Arch- bold's Practice (14th ed. by Chitty), vol. 1, p. 527. 37. Printing. 1 . Generally.* 1675. The rules of court as to printing depositions and affidavits to be used on a trial shall not apply to depositions and affidavits which have previously been used upon any proceeding without having been printed. Ord. LXVI. r. 6, No. 1008. 1676. When the evidence under this order (for trial by affidavit) is taken by affidavit the evidence shall be printed. Ord. XXXVIII. r. 30, No. 550. 1677. E. S. C. No. 550, that in cases of trial by affidavit the evidence shall be printed does not apply to Admiralty actions for limitation of liability, or in rem, by default or references.' Ibid. 1678. An indorsement or pleading may be amended by written alterations in the copy delivered, and by additions on paper to be interleaved therewith if necessary,, unless the amendments require the inser- tion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the document as amended. Ord. XXVHI. r. 8, No. 316. 1678a. In an action between B.and 0. it was agreed by the parties that the evidence taken in an action between A. and C., and printed, should be used in the first-named action. The plaintiffs paid * (526) The rules of the Court of Admi- ralty of 1859 and 1871 as to printing, are annulled by E. S. C. 1883, App. O, No. 22. (526a) Pleadings in the Admiralty Divi- sion are always printed except in proceedings by default. (527) The cost of forty printed copies is allowed on taxation between party and party. Copies of these when supplied to the adverse solicitor may be charged for at the rate of one penny per folio for one copy and one halfpenny per folio for every other copy. E. S. C. 1883, Ord. LXVI. r. 7 (c). (527a) In addition to the allowances for printing and taking printed copies a further sum of threepence per folio on the higher scale and twopence on the lower scale is allowed for copies of the following documents only: — Pleading for opposite party or for filing in default of appearance. Special case for filing. Petition of right for presentation and for treasury solicitor and service on any party. Pleading, special case, or petition, of right, for the use of a court or judge. Any affidavit to be sworn to in print. Any of above for the use of counsel in court and in country agency cases when proper as close copy. Where written copies have been made previously to printing, the above allowances are not to be made, and in no case more than once. E. S. C. 1883, App. N. (5276) On taxation between party ana party the printer's bill for pleadings or evi- dence is aUowed at the rate of one shoUmg per folio for the first twenty copies, with an extra allowance of one penny per folio lor every twenty copies beyond the first ™ e nty. The printing of diagrams and other exhibits is allowed at such sum as the taxing officer thinks reasonable. PRACTICE. Pt. II. In the High Court. Cap. 37. 1G33 the solicitors of A. for such prints, and charged the sums so paid in addition to the regular charge of threepence per folio, as though the printing had been done in the actions between B. and C. under Ord. LXVI. r. 7, No. 1009. Held, on objection to the taxation, that such charge was not improper. The Mammoth, .9 P. D. 126 ; 53 L. J. Adm. 70 ; 51 L. T. 549; 33 W. E. 172. 2. Paper, Type, and Margin. 1679. Proceedingsrequiredtohe printed shall be printed on cream wove machine drawing foolscap folio paper, 19 lbs. per •mill ream, or thereabouts, in pica type leaded, with an inner margin about three quarters of an inch wide, and an outer margin about two inohes and a half wide. Ord. LXVI. r. 3, No. 1005. 3. Of what Documents. (a) Generally. 1680. Every pleading which shall con- tain less than ten folios (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading, not being a petition or summons, shall be printed. Ord. XIX. r. 9, No. 205. 1680a. And see as to printing amended pleadings, No. 1678, supra. 1681. Where any written deposition of a witness has been filed, such deposition shall be printed, unless otherwise ordered. Ord. LXVI. r. 5, No. 1007. 1681<7. When the evidence is taken by aflidavit under Ord. XXXVIII. of E. 8. 0. of 1883, such evidence shall be printed, and other affidavits may be printed if all the parties interested con- sent thereto, or it is so ordered. Ord. XXXVIII. r. 30, No. 550. 1682. All the rules respecting the printing of pleadings and proofs in an action apply so far as they are applicable on an objection to a report of the regis- trar. See Ord. LVI. r. 12, No. 849. 1682a. Every special case shall be printed by the plaintiff, who shall file it and deliver printed copies for the use of the judges. See Ord. XXXIV. r. 3, No. 391. 1683. An affidavit in answer to inter- rogatories shall, unless otherwise ordered by a judge, if exceeding ten folios, be printed. Ord. XXXI. r. 9, No. 351. 1683a. As to printing in the House of Lords, see tit. Appeals, p. 21 ; in the Privy Council, Ibid. pp. 28, 39 ; and in the Court of Appeal, Ibid. p. 54. 1684. Where, pursuant to these rules, any pleading, notice, special case, petition of right, deposition, or aflidavit is to be printed, and where any printed or other office copy of any such document is to be taken, the following regulations shall be observed. Ord. LXVI. r. 7, No. 1009. _ 1684a. As to such rules, see the divi- sions following. (b) By whom. 1685. The party on whose behalf the deposition or affidavit is taken and filed is to print the same in the manner pro- vided by Eule 3 of this order (for which see No. 1679, supra). Ord. LXVI. r. 7, No. 1009 (a). (c) Office Copies. 1686. To enable the*party printing to print any deposition or affidavit, the offi- cer with whom it is filed shall, on demand, deliver to such party a copy written on draft paper on one side only. Ibid. (b). 1687. (Except as provided by Ord. LV. r. 48, relating to Chancery proceedings,) the party by or on whose behalf any de- position, affidavit, or certificate is filed shall leave a copy with the officer with whom the same is filed, who shall exa- mine it with the original and mark it as an office copy ; such copy shall be a copy printed as above provided where such deposition or affidavit is to be printed. Ibid. (f). (d) Copies and Price. 1688. The party printing shall, on de- mand in writing, furnish to any other party any number of printed copies, not exceeding ten, upon payment therefor at the rate of 1 d. per folio for one copy, and % d. per folio for every other copy. Ibid, (c) . 1689. The party entitled to be furnished with a print shall not be allowed any charge in respect of a written copy, unless the court or a judge shall otherwise direct. Ibid. (e). (e) Credit of Copies to Client. 1690. As between a solicitor delivering any printed copies and his client, credit shall be given by the solicitor for the whole amount payable by any other party for such printed copies. Ibid. (d). (f ) Numbering and Marking of Folios. 1691. The folios of all printed and written office copies, and copies delivered or furnished to a party, shall be numbered 1634 PRACTICE. Pt. II. In the High Court. Cap. 38. consecutively in the margin thereof, and such written copies shall be written in a neat and legible manner on the same paper as in the case of printed copies. Ord. LXVI. r. 7, No. 1009 (m). 1692. "Where this rule is not followed the costs of the printing will not be allowed — Per the President of the P. D. & A. Division. The Rose, 27th January, 1885. (g) Note of Filing. 1693. It shall be stated in a note at the foot of every affidavit filed on whose behalf it is so filed, and such note shall' be printed on every printed copy of an affidavit or set of affidavits, and copied on every office copy and copy furnished to a party. Ord. LXVI. r. 7, No. 1009 (k). (h) Expenses. 1 694. "Where, Toy any order of the court (whether of appeal or otherwise) or a judge, any pleading, evidence, or other document is ordered to be printed, the court or judge may order the expense of printing to be borne and allowed, and printed copies to be furnished by and to such parties and upon such terms as shall be thought fit. Ibid. (o). 38. Trial. 1 . Generally.* 1695. Every action and proceeding in the High Court of Justice, and all busi- ness arising out of the same, except as thereinafter provided, shall, so far as is practicable and convenient, be heard and determined by a single judge. See the Appellate Jurisdiction Act, 1876 (c. 59), s. 17. 1696. And all proceedings subsequent to the hearing or trial, and down to and including the final judgment or order, shall be had before the judge before whom the trial or hearing of the cause took place. Ibid. 2. Directions for — . (a) Third Parties. 1697. If a third party appears pursuant to the third-party notice, the defendant giving the notice may apply to the court or a judge for directions, and the court or judge, upon the hearing of such applica- tion, may, if satisfied that there is a ques- tion proper to be tried as to the liability of the third party to make the contribu- tion or indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the de- fendant giving the notice, to be tried in such manner, at or after the trial of the action, as the court or judge may direct Ord. XVI. r. 52, No. 174. 1697a. Por provisions whenever an application is made before trial for an injunction or other order, and the matter in controversy is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence, that the judge may make an order for an early trial at the assizes or elsewhere, see Ord. L. r. 11, of October, 1884. 3. Appointment of — . 1698. In Admiralty actions the court or a judge shall have power at any stage of the proceedings in any such action, upon a motion or summons by either party, for the trial to take place on an early day to be appointed by the court or a judge, to appoint that such trial shall take place on any day or within any time which the court or judge shall think fit ; and for such purpose the court or judge shall have power upon such motion or sum- mons to dispense with the giving of notice of trial, or to abridge the time or times appointed by these rules for giving such notice, for the delivery of pleadings, or for doing any other act or taking any other proceeding in the action, upon such terms (if any) as the nature of the case may require. Ord. LXIV. r. 9, No. 969. 4. Notice of — . (a) Generally.] 1699. Notice of trial may be given in any cause or matter by the plaintiff or other party in the position of plaintiff. Such notice may be given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact * (528) As to the mode of trial of actions in other divisions, see Wilson's Jud. Acts and Kules (4th ed. 1878), pp. 337—361; and Archbold's Practice (14th ed. by Chitty), vol. 1, pp. 577 — 655; andChitty's Forms, 12th ed., p. 339. (528a) As to the mode in which trials are conducted in American Admiralty Courts, see 2 Oonkling's Adm. Prac. (2nded.), p. 349; Dunlap's Ibid. 253. [American.] , t (529) As to notice of trial in the Queens Bench Division, see Archbold's Practice (Htn ed. by OMtty), vol. 1, p. 577; and Chitty s Forms, 12th ed. p. 335. PRACTICE. Pt. II. In the High Court. Cap. 38- 1635 are ready for trial. Ord. XXXVI. r. 1 1 No. 435. ' 1700. If the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as the court or a judge may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial, or may apply to the court or judge to dis- miss the action for want of prosecution ; and on the hearing of such application, the court or a judge may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the court or judge may seem just. Ibid. r. 12, No. 436. 1701. Notice of trial shall state whether it is for the trial of the cause or matter or of issues therein. It shall be in the Form No. 16 in App. B., with such variations as circumstances may require. Ibid. r. 13, No. 437. 1702. Ten days' notice of trial shall be given, unless the party to whom it is given has consented, or is under terms or has been ordered to take short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the court or a judge. Short notice of trial shall be four days' notice, unless otherwise ordered. Ibid. r. 14, No. 438. 1703. Notice of trial for London or Middlesex shall not be or operate as for any particular sittings; but shall be deemed to be for any day after the ex- piration of the notice on which the trial may come on in its order upon the list. Ibid. r. 17, No. 441. 1704. In London and Middlesex, unless within six days after notice of trial is given the trial shall be entered by one party or the other, the notice of trial shall be no longer in force. Ibid. r. 1 6, No. 440. 1705. As to notice of trial elsewhere than in London or Middlesex, Ibid. r. 18, No. 442. 1706. Notice of trial shall be given before entering the trial. Ibid. r. 15, No. 439. 1707. No notice of trial shall be coun- termanded except by consent, or by leave of the court or a judge, which leave may be given subject to such terms as to costs, or otherwise as may be just. Ibid. r. 19. No. 443. 1708. As to the power of the court in Admiralty actions to appoint a day for the trial, and for that purpose to dispense with, or abridge the time for notice of trial, and for doing other acts, see Ord. LXIV. r. 9, No. 969, in No. 1698, supra. (b) By Affidavit. 1709. When the evidence under this Order is taken by affidavit the notice of trial shall be given at the same time or times after the close of the evidence as is in other cases by these rules provided after the close of the pleadings. See Ord. XXXVIII. r. 30, No. 550. 1710. But this rule does not apply to Admiralty actions for limitation of lia- bility, nor in rem by default, nor to refer- ences. Ibid. 5. Entry for — .* 1711. If the party giving notice of trial for London or Middlesex omits to enter the trial on the day or day after giving notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under the last pre- ceding rule, within four days enter the trial. Ord. XXXVI. r. 20, No. 444. 1712. The trial may be entered not- withstanding that the pleadings are not closed, provided that notice of trial has been given. Ibid. r. 15, No. 439. 1713. If a trial be entered by both parties, it shall be tried in the order of the plaintiff's entry, and the defendant's entry shall be vacated. Ibid. r. 28, No. 452. 1714. The party entering the trial shall deliver to the proper officer two copies of the whole of the pleadings, one of which shall be for the use of the judge at the trial. Such copies shall be in print, ex- cept as to such parts (if any), of the docu- ments as are by these rules permitted to • (530) As to the lists of trials without j uries in Queen's Bench Division for London and Middlesex, see Ord. XXXVI. r. 29, No. 453. (531) As to the entry of trial at the next assizes in the district registry (if any) of the city or town where the trial is to be had, or with the associate, Ibid. r. 4, of Oct. 1884. (531a) And for provisions that where the lists in Ord. XXXVI. Part IV. mentioned have been closed for the autumn and spring assizes at Liverpool or Manchester, there shall be special sittings for the trial of cer- tain cases in the Chancery Division, Ibid. r. 3. (532) As to entries for trial in certain dis- trict registries, Ibid. r. 23, No. 447. (533) As to the lists of causes for trial at the assizes to be made by district registrars and entries therein, Ibid. rr. 24 — 27, No. 448—451. 1636 PRACTICE. Pt. II. In the High Court. Cap. 38. be -written. Ord. XXXVI. r. 30, No. 454* See also No. 1704, supra. 6. Place of- — . 1715. There shall be no local venue for the trial of any action, except where other- wise provided by statute. Every action in every division shall, unless the court or a judge otherwise orders, be tried in the County or place named on the statement of claim, or (where no statement of claim has been delivered or required) by a notice in writing to be served on the defendant, or his solicitor, within six days after appear- ance. "Where no place of trial is named, the place of trial shall, unless the court or a judge shall otherwise order, be the county of Middlesex. Ord. XXXVI. r. 1 , No. 525. 1715a. The provisions of the above -rule shall apply to every action, notwith- standing that it may have been assigned to any judge. Ibid. r. 2, of October, 1884. 7. Admission of Evidence taken before Trial. 1716. Except where by this Order otherwise provided, or directed by the court or a judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the eon- sent of the party against whom the same may be offered, unless the court or judge is satisfied that the deponent is dead, or beyond the jurisdiction of the court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the exami- nation shall, be admissible in evidence, saving all just exceptions, without proof of the signature to such certificate. Ord XXXVII. r. 18, No. 500.f 1717. No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the court or a judge be received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the court or a judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf. Hid. r. 24, No. 506. 1718. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte ap- plications by leave of the court or a judge, to be obtained at the time of making any such application, and in any other case upon the party desiring to use such evi- dence giving two days' previous notice to the other parties of his intention to read such evidence. Ibid. r. 3, No. 485. 8. With or without Jury.% 1719. In an action in the Admiralty Division trial by jury refused. The Temple Bar, 10 Nov. 1885. Decision affirmed on appeal, Ibid. 12 Nov. 1885. See also The Seaham, 4 Asp. 58. * (533a) Four prints are all that are al- lowed on taxation, but ten prints are usu- ally asked for- and left. t (534) In the Admiralty Division, however, evidence taken before trial under order of court is not taken under the above order, and is (unlike the practice in the other divi- sions) read at the hearing without any fur- ther application to the court being necessary for the purpose, and without its being neces- sary to prove that the witness has not returned from sea, and even though he may have re- turned, and it is probable he would not be allowed to be called again as a witness at the trial without special grounds being shown for such a course. • (534a) The notice of trial in the Admiralty Division is entitled in the cause, and ad- dressed to the adverse solicitor, requiring him to take notice of trial of the action (spe- cifying it), or the issues ordered to be tried in the action (as the case may be) in (stating venue), for the day of next. It is dated and signed by the solicitor, or agent of the solicitor, in the cause giving the notice.- The notice of trial bears an impressed stamp of two pounds, of which one pound is for the stamp on the judgment or decree issued to the successful party, filed in the filing- room in the Admiralty registry. \ (535) Actions in the Admiralty Division are always tried without a jury, though it would seem that anciently the judge of the Admiralty Court had power to convene a jury. See 2 Chitty's General Practice, pp. 513, 535, also note to The BucJcers, 4 C. Bob. 74, and the Admiralty Division as a branch of the Supreme Court, probably now has the same power. The court, however, has the assistance of Trinity Masters as assessors, where nautical assistance is advisable. (536) This enables the court to dispense with the allowance of scientific nautical evi- dence, and much expense is thus saved to suitors. , (537) As to the causes in the Queens Bench Division in which trials may be mo with and without a jury, soe Old. Xaavi. rr. 4—9, Nos. 428—433, as amended by r. n of Dec. 1885. PRACTICE. Pt. II. In the High Court. Cap. 38. 1637 9. With Assessors. (a) Generally. 1720. Trials with assessors shall take place in such manner and upon such terms as the court or a judge shall direct. Ord. XXXVI. r. 43, No. 467. (h) Trinity Masters. 1721. Trinity Masters. See Pt. I. c. 2, p. 1466, and tit. Evidence, p. 421. 10. Where one Party does not appear. 1722. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim, so far as the hurden of proof lies upon him. Ibid. r. 31, No. 455. 1723. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judg- ment, dismissing the action, but if he has a counter-claim then he may prove such counter-claim so far as the burden of proof lies upon him. Ibid. r. 32, No. 456. 1 724. Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the court or a judge upon such terms as may seem fit, upon an application made within six days after the trial. Ibid. r. 33. No. 457. 1 1 . Examination of Witnesses in Court. (a) Generally.* 1725. In the absence of any agree- ment in writing between the solicitors of all parties, and subject to these rules, the witnesses at the trial of any action or at any assessment of damages shall be ex- amined vivd voce and in open court ; but the court or a judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such con- ditions as the court or judge may think reasonable, or that any witness, whose at- tendance in court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a commissioner or examiner ; provided that, where it appears to the court or judge that the other party bond fide desires the production of a witness for cross-examina- tion, and that such witness can be pro- duced, an order shall not be made authorizing the evidence of such witness to be given by affidavit-! O rd - XXXVII. r. 1, No. 483. 1726. Nothing in this act or in the first schedule thereto, or in rules of court to be made under the act, except as therein mentioned, affects the mode of giving evidence by the oral examination of witnesses in trials by jury, or the ruj.es of evidence. See the Judicature Act, 1875 (c. 77), s. 20. (b) Evidence taken down by Shorthand Writer.^ * (538) Evidence on the trial of an action in the Admiralty Division is now usually given vivd voce, and taken down in shorthand by the shorthand writers appointed by the court. (539) If it is important to secure the testi- mony of witnesses about to leave the country, the court will generally entertain an appli- cation to have those witnesses on either side or both sides examined and cross-examined in court prior to the hearing ; or an order may be obtained for their evidence being taken before an examiner of the court or by com- mission. (540) As to evidence before trial, see c. 35, ss. 27, 28, pp. 1620 et seq. (541) As to oral proof by witnesses, in- cluding attendance, examination, and cross- examination of witnesses, see Roscoe's Digest of the Law of Evidence (15th ed.), pp. 143 et seq. (542) As the pleadings are sufficiently ex- plicit to indicate the respective cases of the parties, no opening by counsel precedes the examination of witnesses on either side. (543) When the witnesses are examined vivd voce the court only hears one counsel on each side, except on questions of law, on which both counsel may be heard. (544) When the hearing takes place on written proofs all the counsel engaged on each side are entitled to be heard. . f (545) As to the powers of the Court of Admiralty, prior to the Judicature Acts, to examine witnesses vivd voce, see 3 & 4 Vict. c. 65, s. 7. X (546) In the Admiralty Division, where the evidence is taken vivd voce, and there is any probability of an appeal by either party — i.e., substantially in all cases — the ques- tions and answers are taken down in short- hand by one of the authorized reporters of the court, who is first duly sworn faithfully to take down the same. One of them at- tends the sittings of the court for that pur- pose. On appeal, an order is obtained that this transcript of the evidence shall be re- ceived as authentic proof of the evidence in the cause. 1638 PRACTICE. Pt. II. In the High Court. Cap. 38- (c) Disallowance of Irrelevant and Vexa- tious Questions. 1727. The judge may in all cases dis- allow any questions put in cross-examina- tion of any party or other witness which may appear to him to be vexatious, and not relevant to any matter proper to he inquired into in the cause or matter. Ord. XXXVI. r. 38, No. 462. (d) Use of Answers to Interrogatories. 1728. Any party may, at the trial of a cause* matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer : Provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in. Ord. XXXI. r. 24, No. 366. 12. Notes of Commencement and Termi- nation. 1729. The registrar, master, or other proper officer present at any hearing* or trial, shall make a note of the times at which such hearing or trial shall com- mence and terminate respectively, on each day on which the same shall take place, for communication to the taxing officer if required. See Ord. XXXVI. r. 40, No. 464. 13. Special Case* 1730. Upon the argument of a special case the court and the parties shall be at liberty to refer to the whole contents of the documents referred to therein, and the court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial. See Ord. XXXIV. r. 1, No. 389. 1731. On a special case upon a ques- tion of law being ordered, such further proceedings as the decision of such ques- tion of law may render unnecessary may thereupon be stayed. Ibid. r. 2, No. 390. 1732. As to the printing signatures to and filing of a special case, see c. 24. p. 1573. 1733. No special case in a cause or matter to which a married woman (except as therein mentioned), infant, or person of unsound mind not so found by in- quisition, is a party, shall be set down for argument without leave of the court or judge, the application for which must he supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such married woman, infant, or person of unsound mind, are true. Ibid. r. 4, No. 392. 1734. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the form No. 25 in App. GK, and also if any married woman, infant, or person of unsound mind not so found By in- quisition, be a party to the cause or matter, producing a copy of the order giving leave to enter the same for argu- ment. Ibid. r. 5, No. 393. 1735. As to agreement by parties to a special case for payment of an agreed sum, according to the judgment of the court in the affirmative or negative on the questions of law, see c. 24, p. 1573. _ . 1736. This order applies to every special case in a cause or matter, or proceeding incidental thereto. Ibid. r. 7, No. 395. 1737. Any special case may be stated for the same purposes, and in the same manner as was provided by the act 13 & 14 Vict. c. 35, and the same shall he deemed to be a special case within the (547) As to the court shorthand writers, see Pt. I. c. 4, p. 1473.' (548) The shorthand writer's charges for attending and taking down the evidence are two guineas a day, besides his charge for the transcript, if ordered. (549) The plaintiff's solicitor is entitled, on taxation between party and party, to a fee for bespeaking the attendance of the Shorthand writer, whose charges of attend- ance are usually paid by him. (550) All witnesses, except the one under examination, those who have been examined, parties in the cause, and scientific -witnesses, such as surveyors, &c, are generally required to be kept out of court. * (551; As to proceedings by special case, see Wilson's Jud. Acts and Eules (4th ed.j, pp. 323—326. , (552) As to trials of questions of lav by special case in the Queen's Bench Dmswii. see Archbold's Practice (14th ed. by Ohitty), vol. 2, p. 1343. PRACTICE. Pt. II. In the High Court. Cap. 38. 1639 meaning of this order. Ibid. r. 8, No. 396. 1738. As to the powers of arbitrators and referees to state a special case, see the Common Law Procedure Act, 1854 (c. 125), s. 4 ; and also of referees to do so, see Ord. XXXVI. r. 52, No. 476. As to statement of special case in inter- pleader, see Ord. LVII. r. 9, No. 858. 1739. "Where the statement of defence denied specifically all the allegations in the statement of claim, and further al- leged that the defendant's liability was limited to £5 by the terms of a bill of lading, held that the question of law should be first decided, and a special case ordered. Tattersall v. National Steamship Co., 9th Feb. 1884. 1739a. See also c. 24, pp. 1572, 1573; as to special cases in the Privy Council, see tit. Appeals, p. 48. 14. Question of Law. See c. 24, No. 1020, p. 1573. 15, Issues. (a) Generally.* 1740. Por provisions that where issues or questions of fact have been ordered to be tried or determined, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined; and if he does not do so, and give notice thereof to the other parties within ten days, any defendant may do so, Ord. XL. r. 7, No. 565. 1741. Por provisions that where issues or questions of fact have been ordered to be tried or determined, and some only of them have been tried, any party who con- siders the result of the trial renders the trial of the others unnecessary, or re- quiring postponement, may apply for leave to set down a motion for judg- ment, without waiting for such trial, Hid. r. 8, No. 566. See also Nos. 1744 — 1747, infra. (b) Third Parties. 1742. Unless issues are directed and prepared between the defendant and a third party the court cannot try questions of liability between them. The Carts- burn, 5 P. D. 59 ; 4 Asp. 202. 1743. Semble, it is competent to the court to order issues between the defen- dant and a third party to be tried either at the same time as those between plain- tiff and defendant or after they have been decided. Ibid. (C. A.) 16. Questions of Facts agreed to be decided. 1744. When the parties to a cause or matter are agreed as to the questions of fact. to be decided between them, they may, after writ issued and before judg- ment, by consent and order of the court or a judge, proceed to the trial of any such questions of fact without formal pleadings ; and such questions may be stated for trial in an issue in the form No. 15, in Appendix B., with such varia- tions as circumstances may require ; and such issue may be entered for trial and tried in the same manner as any issue joined in an ordinary action, and the pro- ceedings shall be under the control and jurisdiction of the court or judge, in the same way as the proceedings in an action. Ord. XXXIV. r. 9, No. 397. 1745. The court or a judge may by consent of the parties order that, upon the finding thereof in the affirmative or negative, a sum of money, fixed by the parties, or to be ascertained upon a ques- tion inserted in the issue for that purpose, shall be paid by one of the parties to the other with or without costs. Ibid. r. 10, No. 398. 1746. Upon the finding on any such issue, judgment may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless the court or a judge shall other- wise order for the purpose of giving either party an opportunity for moving to set aside the finding or for a new trial. Ibid. r. 11, No. 399. 1747. The proceedings upon such issue may be recorded at the instance of either party, and the judgment, whether re- * (553) As to the powers of the Court of Admiralty before the Judicature Acts to direct issues for trial at common law before a jury, see 3 & 4 Vict. c. 65, ss. 11—16, now re- pealed by the Civil Procedure Acts Eepeal Act, 1879 (c. 59). (554) Por case of an issue so directed and new trial refused, see The Harriot, 1 W. Bob. 429. (555) And for refusal to direct such an issue, see The Flecha, 1 Spinks' Eccl. and Adm. Eep. 440. 1640 PRACTICE. Pt. II. In the High Court. Cap. 38. corded or not, shall have the same effect as any other judgment in a contested action. Ord. XXXIV. r. 12, No. 400. 17. By Referees. See c. 41, p. 1658. 18. Counsel. (a) Generally. 1748. In a cause of salvage the defen- dants appeared, but -without pleading. They appeared by counsel at the hear- ing and claimed to be heard in deprecia- tion of the services. Held, that a party who has not pleaded cannot be heard. The Emerald (2300), 13th December, 1864. 1748a. The counsel of rival salvors may cross-examine each other's witnesses, but only as to circumstances in dispute between them. The Morocco, 1 Asp. N.S. 46 ; 24 L. T. N.S. 598. (b) In Consolidated Actions. 1749. Where the interests of the plain- tiffs in a consolidated salvage action are adverse, separate counsel will be heard on their behalf at the hearing. The Scout, L. E. 3 A. & E. 512 ; 41 L. J. Adm. 42 ; 1 Asp. N.S. 258. (c) Right to begin and Reply. (aa) Generally. 1750. As to the order of counsel being heard in eases of trial with a jury, see Ord. XXXVI. r. 36, No. 460. 1751. Where the onus probandi has been imposed upon a party it is his duty to begin. Those who claim to share in a joint capture begin to state their case, and afterwards are entitled to reply. The Banda and Kirwee Booty, 35 L. J. Adm. 11 ; 2 Asp. 323. 1752. Where the Crown appears to protest against the jurisdiction of the court being exercised against a .vessel belonging to a foreign power, it has the same right of reply as in cases where it appears on its own behalf. The Parlia- ment Beige, 4 Asp. 83. (bb) In Bottomry Actions. 1753. In a bottomry action in which the bond had been pronounced for in proceedings by default, but which was afterwards allowed to be contested by the owners, the counsel for the bondholder was called on to begin. The Orelia, 3 Hagg. 78, n. (cc) In Collision Actions.* 1754. In collision actions generally the plaintiff begins. The Otter, 2 Asp. N.S. 208. 1755. In a collision action where the plaintiffs' ship was at anchor when the collision occurred, held, that the burden of proof was upon the defendants to ac- count for the collision, and that they ought to begin. The George Arkle, 1 Asp. 154. 1756. In a cause of collision where the defendant admits that his vessel ran into a vessel at anchor, but denies that such vessel was the plaintiff's, the plaintiff must establish identity, and must there- fore begin. The Earl of Leicester, B. & L. 188. 1757. The defendants' vessel came into collision with the plaintiffs' vessel which was riding to her nets. The defendants charged the plaintiffs with not exhibiting a proper light. Held, that the plaintiffs must begin. The Bottle Imp, 42 L. J. Adm. 48; 1 Asp. N.S. 571. 1758. Where defendants in a cause of collision plead inevitable accident alone, it lies on the plaintiffs to show a primd facie case of negligence (see the Marpesia, L. E. 4 P. C. 212; 1 Asp. N.S. (P. 0.) 261), and the plaintiffs must therefore begin. The Abraham, 2 Asp. N.S. 34: overruling The Thomas Lea, infra. 1759. The defendants in their answer pleaded inevitable accident, and generally denied the allegations of the petition, but did not charge the plaintiffs with any blame. Held, that it rested with the de- fendants to show, in the first instance, that they were not responsible for the damage, and that therefore they ought to begin. The Thomas Lea, 38 L. J. Adm. 37 ; 2 Asp. 389. * (556) If the defendant calls for the plain- tiff's log and puts it in evidence, it is put in evidence by the defendant, and though the defendant calls no witness the plaintiff's counsel is entitled to reply. ^ (557) For the old practice as to the ad- mission of further pleadings and evidence after the formal close of pleadings and imto evidenoe, see Le Niemen, 1 Dodson, 10; The Fortitude, 2 Ibid. 70; The Sydney Cm, 2 Ibid. 10; The Bonaparte, 8 Moore, P. ^ 0. 460; The Speed, 7 Jur. 1069; 2f.» 230; The Julindur, 1 Spinks' Eccl. & Adm. Eep. 71. PRACTICE. Pt. II. In the High Court. Cap. 38. 1641 1760. Where the only defence pleaded in a cause of collision is that of inevitable accident the plaintiff begins. The Ben- more, L. K. 4 A. & E. 132; 43 L. J. Adm. 5 ; The Otter, L. E. 4 A. & B. 203 ; 2 Asp. N.8. 208. (dd) In Salvage Actions. 1761. In a salvage action the right to begin does not shift with the burden of proof, but is almost universally with the claimant. The Magdalen, 31 L. J. N.S. Adm. 22. 1762. Salvage services were admitted, but it was charged by the defendants that salvage reward was forfeited by the sub- sequent misconduct of the salvors. Held, that the counsel for the plaintiffs, the salvors, were nevertheless entitled to begin. Ibid. 1763. In the case of rival salvors those who first entered their action should, as a rule, begin. The Morocco, 1 Asp. N.S. 46; 24 L. T. N.S. 598. 1764. In salvage actions, where several actions have been instituted, there is no inflexible rule to entitle the plaintiffs in the action first instituted to begin. The Willem III., L. E. 3 A. & E. 487 ; 1 Asp. N.S. 129. 1765. See as to the right to begin of counsel for different sets of salvors in a consolidated cause of salvage, Ibid. 1 Asp. 132. 1766. In this case counsel for those first on the spot were first heard. Ibid. (ee) In the Privy Council. See tit. Appeals, p. 29. 19. By Affidavit. (a) Generally. 1767. No deposition filed or made be- fore issue joined is, without special leave, to be received at the trial, unless within one month after issue joined, or such longer time as may be allowed by special leave, notice in writing thereof has been given to the opposite party. See Ord. XXXVH. r. 24, No. 506. 20. Of Cross Actions. See o. 34, p. 1605, and Nos. 1542— 1545, p. 1619. 21. Postponement or Adjournment. (a) Generally. 1768. The judge may, if he think it ex- pedient for the interests of justice, post- pone or adjourn a trial for such time, and to such place, and upon such terms, if any, as he shall think fit. Ord. XXXVI. r. 34, No. 458. 1769. Where a party is brought up to attend the trial or hearing of a cause or matter by virtue of any writ of habeas corpus duly issued from the Central Office, and by reason of the pressure of other business, or from any other cause, the trial or hearing of the cause or matter in which such party is concerned is post- poned to a future day, a new writ of habeas corpus may be issued for such future day, if the court or a judge shall so direct, without payment of any fee. Ibid. r. 35, No. 459. 1770. The judge may, at or after a trial, adjourn the case for further con- sideration, or leave any party to move for judgment. Ibid. r. 39, No. 463. (b) Before Trial commenced. 1771. In a cause of bottomry, on motion on behalf of the bondholder, the assignees of the owner directed to bring in all the affidavits and proofs then in their power or possession before the bondholder should be required to file his answer to their pleadings, and on the further affida- vits and proofs being so brought in, the bondholder allowed further time to send out to the Mauritius. The Orelia, 3 Hagg. 77, n. 1772. An application to postpone the hearing of a cause until the return of a person to this country, there having been abundance of time for the person to have given his evidence before he left, refused. The Blendenhall, 1 Dodson, 417. 1773. Time having been frequently prayed by the defendant to examine, in a cause of personal damage, a witness who had afterwards been suffered to leave the country without being ex- amined, the court, it being uncertain when he would return, refused to grant any further time, and closed the case. The Enchantress, 1 Hagg. 395. 1774. The court will not, at the instance of a defendant, postpone the trial of a cause on the ground of the absence of a material and necessary witness, where the witness is a captain in the service of the defendant, and the defendant has been guilty of laches in abstaining from securing the testimony of the witness when within his power. Wright v. MGuffie, 4 C. B. N.S. 441. 1775. Motion, after publication, to permit further affidavits to be given in, 1642 PRACTICE. Pt. II. In the High Court. Cap. 39. and to allow further time to procure them, the parties being at sea, on the ground that it had been intended origin- ally to apply for time to procure these affidavits, but that the case had been closed through inadvertence granted, the court intimating, however, that it would view the affidavits introduced at such a stage of the cause with great suspicion ; and that, without reference to the result of the suit, the party would be liable to the costs of the application, should the affidavits prove unnecessary. The Speed, 7 Jur. 1069 ; 2 Notes of Oases, 230. 1776. Application to postpone the hearing of a cause, on the ground that a bill of indictment for perjury had been found against one of the principal wit- nesses, granted to the extent of a limited postponement, but a further postpone- ment refused. The Jane and Matilda, 1 Hagg. 187 ; see also Maclean v. Mac- lean, 2 Hagg. 601 ; Kenrick v. Kenrick, 4 ibid. 133 ; Panton v. Williams, 2 Ourteis, 552. (Eccl.) (c) After Trial commenced. See No. 1770, supra. 22. Evidence in Proceedings after Trial. See c. 35, p. 1626. 23. New Trial or Re-hearinff. 1777. Every motion for a new trial, or to set aside a verdict, finding, or judg- ment, shall be made (1) in every cause or matter by the Principal Act assigned to the Probate, Divorce and Admiralty Di- vision, where - there has been a trial thereof, or of any issue therein with a jury, to a Divisional Court of that Divi- sion, one of the judges of which shall (when practicable) sit on the hearing of such motion ; (2) in every other cause or matter, where there has been a trial thereof or of any issue therein with a jury, to a Divisional Court of the Queen's Bench Division; and (3) where there has been a trial without a jury, by appeal to the Court of Appeal. Ord. XXXIX. r. 1, No. 551. 1778. When the trial takes place be- fore a judge without a jury, an applica- tion for a new trial, whatever the ground, must be made to the Court of Appeal. Oastler v. Henderson, 2 Q. B. D. 575. (C. A.) 1779. As to applications to the Court of Appeal for leave to give further evi- dence in the Court of Appeal, see tit. Appeal, pp. 37 and 54. 1780. In courts of common law there may be a new trial in cases of surprise, but there can be no new trialin the Court of Admiralty. The Minnehaha, 1 Lushington, 340. 1781. The practice of the Court of Ad- miralty does not admit of new trials, owing to the wandering habits of seamen and for other reasons. The Constitution, 2 Asp. 60. 1782. On an appeal to the Judicial Com- mittee the sentence must be either affirmed or altered, and it will not be altered unlesB the Appellate Court is reasonably con- vinced that the sentence was wrong. Ibid. 1783. Semble, whete an objection is taken to the exclusion of evidence by the judge of the Admiralty Court, the proper course is to apply to the Court of Appeal for a new trial on that ground, and not to tender the evidence afresh in the Court of Appeal. The Sir Robert Peel, 4 Asp. 321. (C. A.) 1784. Semble, where the court sees clearly that, unless a re-hearing were granted, its intention declared in its judg- ment would be defeated, it is within the competency of the court to grant it. The Singapore, L. E. 1 P. C. 378. 1785. As to applications for new trials from judgments or verdicts in the Com- mon Law Division, see Ord. XXXDI. Wilson's Judicature Acts and Eules (2nd ed.), p. 272; Archbold's Practice (14th ed. by Chitty), vol. 1, p. 729 ; andChitty's Forms (12th ed.), p. 368. 1786. As to rules nisi and absolute, see Ord. LIU. rr. 2 to 6. 1787. On motion for judgment, or for a new trial, the court may give judgment accordingly, or may direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and in- quiries to be taken and made as it may think fit. Ord. XL. r. 10, No. 568. 24. Costs. See tit. Costs, p. 342. 39. Judgments and Orders. [Judgments.] 1. Generally.* 1788. In the construction of this act, * (558) As to judgments and orders in the drawing up, signing, and entry ^ ere _ .:i 6 ?! Queen's Bench and Chancery Divisions, the Central Office Practice Eules, 1880— 1BW> m PRACTICE. Pt. II. In the High Court. Cap. 39. 1643 unless there is anything in the subject or context repugnant thereto, " judgment " shall include decree, "order" shall include rule. The Supreme Court of Judicature Act, 1873 (c. 66), s. 100. 1789. Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment or order, within which the act is to he done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be indorsed a memorandum in the words or to the effect following, viz.: " If you, the with- in-named A. B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same judgment (or order)." Ord. XLI. r. 5, No. 573. 1790. The judge may, at or after a trial, direct that judgment be entered for any or either party, or adjourn the case for further consideration, or leave any party to move for judgment. No judg- ment shall be entered after a trial with- out the order of a court or judge. Ord. XXXVI. r. 39, No. 463. 1791. The court will not make a decree against the master in an action of wages against the ship only, even though the master appeared in the action and gave bail. Lee v. Rous, anno 1750, Marsden's Eep. p. 318. 1792. For forms of judgments, see E. 8. 0. 1883, App. F. 1793. As to interest on judgments, see tit'. Eegistrab and Merchants. 2. Motion for — (a) Generally.* 1794. Except where by the acts or by these rules it is provided that judgment may be obtained in any other manner, the judgment of the court shall be obtained by motion for judgment. Ord. XL. r. 1, No. 559. 1795. Where at the trial the judge or referee abstains from directing any judg- ment to be entered, the plaintiff may set down a motion for judgment. If he does not set down such a motion and give notice thereof to the other parties within ten days after the trial, any defendant may set down a motion for judgment, and give notice thereof to the other parties. Ibid. v. 2, No. 560. 1796. No motion for judgment shall, except by leave of the court or a judge, be set down after the expiration of one year from the time when the party seek- ing to set down the same first became entitled so to do. Ibid. r. 9, No. 567. (b) Notice of—. 1797. See No. 1795, supra. 3. Entry of — . (a) Generally.] 1798. Every judgment shall be entered by the proper officer in the book to be kept for the purpose. The forms of entries Wilson's Jud. Acts and Rules (4th ed.), p. 850. (559) As to judgments or orders for man- damus and prerogative mandamus, see Ord. LIII. rr. 4—15, Nos. 722—733. (560) A decree in the Court of Admiralty for damages and reference to the registrar and merchants, held, a definitive sentence. The Saracen, 6 Moore, P. C. C. 75. * (561) As to judgments, motions for, and to set aside or enter other judgments and registrations of judgments in the Queen's Bench Division, see Archbold's Practice (14th ed. by Chitty), vol. 1, pp. 755—769; Chitty's Forms (12th ed.), pp. 371—376; and Wilson's Jud. Acts and Rules (4th ed.), pp. 384—392. (562) For provisions on motions for judg- ment, or applications for a new trial, after verdict of a jury enabling the court to draw certain inferences of fact, and to direct the motion to stand over for further considera- tion, and to direct such issues or questions to he tried or determined, and such accounts and inquiries to be taken and made, as it may think fit, see Ord. XL. r. 10, No. 568. t (563) In the Admiralty Division judg- ments are not registered nor filed in the Admiralty Registry or the Central Office. (564) The registrar being the proper officer in the Admiralty Division to enter the judg- ment, no copy of the pleadings as required by this rule are given by or to him, as printed copies of the pleadings have pre- viously been filed in the registry. (565) For provisions that where under the acts or these rules, or otherwise, any judg- ment may be entered upon the filing of any affidavit or production of any document, the officei* shall examine the same, and if regu- lar and sufficient he shall enter judgment accordingly ; or similarly, he may do so where judgment may be entered pursuant to any order or certificate, or return to any writ, on the production thereof sealed with the seal of the court, or of such return, see Ord. XLI. rr. 6, 7, Nos. 574, 575. (566) As to entries of judgments in the Queen's Bench Division, Ibid. r. 8, No. 576. 5N 2 1644 PRACTICE. Pt. II. In the High Court. Cap. 39. of judgments in App. ~F. shall be used, ■with such variations as circumstances may require. Ord. XLI. r. 1, No. 569 * 1799. It is not necessary to enrol any judgment or order. Ord. LXI. r. 8, No. 901. See also Nos. 1789, 1790, supra. (b) Bate of—. 1800. Where any judgment is pro- nounced by the court or a judge in court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the court or judge shall otherwise order, and the judgment shall take effect from that date. Provided that by special leave of the court or a judge a judgment may be ante-dated or post-dated. Ord. XLI. r. 3, No. 571. 1801. In all cases not within the last preceding rule, the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date. Ibid. r. 4, No. 572. 1802. "Where in any action a set-off or counter-claim is established as a defence against the plaintiff's claim, the court or a judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may other- wise adjudge to the defendant such relief as he may be entitled to upon the merits of the case. Ord. XXI. r. 17, No. 250. (c) For want of Statement of Claim or Defence, see Nos. 934—942, p. 1562. (d) In Actions in rem by Default, see Nos. 948, 949, 952, p. 1564. (e) In Actions for Accounts, see Nos. 712, 713, p. 1535. (f) Actions under Directions, see Nos. 1001, 1002, p. 1571. (g) Third Parties not appearing, see Nos. 709—711, p. 1535. 4. On Counter-claim or Set-off. 1 803. If, when a trial is called on, the de- fendant appears, and the plaintiff does not appear, the defendant, if he has no counter- claim, shall be entitled to judgment dis- missing the action, but if he has a counter^ claim, then he may prove such counter- claim so far as the burden of proof lies upon him. Ord. XXXVI. r. 32, No. 456. 5. On Confession of Defence. 1804. For provisions that where the defendant alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence, and thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the court or a judge shall otherwise order. Ord. XXIV. r. 3, No. 284. 6. By Consent. 1805. In any cause or matter where the defendant has appeared by solicitor, no order for entering judgment shall be made by consent unless the consent of the de- fendant is given by his solicitor or agent. Ord. XLI. r. 9, No.' 577. 1806. Where the defendant has not appeared, or has appeared in person, no such order shall be made unless the de- fendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the de- fendant is a barrister, conveyancer, special pleader, or solicitor. Ibid. r. 10, No. 578. 7. Third Parties. ,1807. If a third party appears pur- suant to the third-party notice, the de- fendant giving the notice may apply for directions to the court or a judge, who may, if not satisfied there is a proper question to be tried as to the liability of the third party, order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party. Ord. XVI. r. 52, No. 174. 8. In Proceedings by Default. See Nos. 925—932, p. 1561 ; Nos. 934 —942, p. 1562 ; Nos. 944—952, p. 1563. 9. In Actions in rem without Pleadings m Defence. 1808. Ord. XXIX. r. 2 (now Ord. XXVII. r. 2, No. 295), allowing the plain- tiff when his claim was only for ft <">di * (567) As to the registry of judgments in the Queen's Bench Division, searches for and certificates as to same, see Ord. LXI. rr. 24, Nos. 915, 917. PRACTICE. Pt. II. In the High Court. Cap. 39. 1645 or liquidated demand, and the defendant had delivered no defence or demurrer, to enter final judgment, did not apply to cases where the defendant in proceedings in rem in the Admiralty Court had failed to deliver a defence within the proper time.* The Sfactoria, 2 P. D. 3 ; 3 Asp. N.8. 271. 10. Obtained by prior petens — Effect of- — . See c. 14, p. 1536. 11. On Foreign Judgments. 1809. See also tit. Jurisdiction, pp. 661 — 666, and ibid, in Addenda. 12. Enforcement of — .f (a) Generally. 1810. A judgment for the recovery hy, or payment to, any person, of money, may be enforced by any of the modes by which a judgment or decree for the pay- ment of money of any court whose juris- diction is transferred by the principal act might have been enforced at the time of the passing thereof. Ord. XLII. r. 3, No. 581. 1811. A judgment for the payment of money into court may be enforced by writ of sequestration, or in cases in which, attachment is authorized by law, by attachment. Ibid. r. 4, No. 582. 1812. A judgment for the recovery of any property other than land or money may be enforced, (a) by writ for delivery of the property; (b) by writ of attach- ment; (c) by writ of sequestration. Ibid. r. 6, No. 584. 1813. A judgment requiring any per- son to do any act other than the payment of money, or to abstain from doing any- thing, may be enforced by writ of at- tachment, or by committal. Ibid. r. 7, No. 585. 1813a. As to discovery in aid, see c. 43, s. 19, p. 1663 ; and as to enforcing obedi- "ence to acts ordered to be done, Ibid. (b) Against Corporations. 1814. As to the enforcement of judg- ments or orders against a corporation by sequestration against its property or attachment against its directors or other officers, see Ibid. r. 31, No. 609. 13. Alteration of — .\ 1815. An application to amend an error in a decree must be made with the utmost expedition. The Orient, 3 Asp. 322; 39 L. J. Adm. 10; The Monarch, 1 W. Eob. 21. 1816. On an application to alter a minute of a decree the court refused to do so as the application was not made until five months after the decree, and as the minute on the whole accurately re- corded the decree of the court. Ibid. 1817. A salvage suit having been in- stituted against ship, freight, and cargo. The value of the ship and freight and the value of the cargo were taken as stated on affidavit by the shipowner and the owner of the cargo respectively, and a certain sum was awarded, as salvage re- muneration. Subsequently the owner of the cargo discovered that he had included the value of the freight, which proved to be larger than the amount stated by the shipowner, in his valuation of the cargo, and moved the court to reduce the amount awarded as salvage. Held, that the court had power to correct the mistake and vary its decree both as to the amount of salvage and the proportions payable by the dif- ferent parties. The James Armstrong, L. E. 4 A. & E. 380 ; 3 Asp. N.S. 46. 1818. The court has power, where it has per incur iam made a decree for the payment of money out of court, to revoke • (568) Semble, E. S. C. 1883, for proceed- ings by default apply. See, as to same, 0.22, p. 1561. t (569) Application to the English Court of Admiralty to enforce a sentence of the Irish Admiralty Court refused. Pilkington v. The Orrory, anno 1679, Marsden, p. 253. % (570) As to the old practice thereon in the Admiralty Court, see The Vrouw Her- mina, 1 C. Eob. 168; The Elizabeth, 2 Acton, 57 ; The Geheimirath, Ibid. 58, n. ; The Har- mony, Ibid. 60, n., and note to The Herst- elder, 1 C. Eob. 118; The Harmony, 2 Dod- son, 78 ; The Fortitude, Ibid. 70 ; The Mo- narch, 1 "W. Eob. 21 ; The Glenburn, Bro. & Lush. 62 ; 11 W. E. 685. See also as to the practice in other courts, Cheese v. Scales, 10 Mee. & W. 488, cited in Dysart v. Dysart, 1 Eobertson, 545; 5 Notes of Cases, 261; Gallon v. Hancock, 2 Atk. 430; Souter v. Souter, Ibid. ; Dysart v. Dysart, 1 Eobertson, 545 ; 5 Notes of Cases, 261 ; Gossain v. Gossain, 8 W. E. 196. (571) As to the power of the American Admiralty Courts to review their decisions, see 1 Conkling's Adm. Prac. (2nd ed.), p. 280. [American.] 1646 PRACTICE. Pt. II. In the High Court. Cap. 39. or vary such decree, if before the money has been paid out, application is made to it for that purpose. The Marhland, L. E. 3 A. & E. 340 ; 1 Asp. N.S. 44. 1819. In a collision action, in which both vessels had been found to blame, the court, after the general hearing of the cause, but before decree, allowed the de- fendant, under special circumstances, and on payment of costs of the motion, to move "that a moiety of the damages sustained by his vessel be ascertained and deducted from the amount of damages decreed to the owners of the plaintiff's vessel." The Emily, 4 Jur. N.S. 140. [Ibish.] 14. Rescinding of — . 1820. As to applications to set aside judgments at or after trial by jury, see Ord. XL. r. 3, No. 561. 1821. Or at or after a trial without a jury, Ibid. r. 4, No. 562. 1822. As to such application being to the Court of Appeal, unless, where there has been a trial with a jury, there is also a motion for a new trial, in which case it shall be to the Divisional Court, Ibid. r. 5, No. 563. 1823. Any verdict or judgment ob- tained where one party does not appear at the trial may be set aside by the court or a judge upon such terms as may seem fit, upon an application made within six days after the trial; such application may be made either at the assizes or in Mid- dlesex. Ord. XXXVI. r. 33, No. 457. 1824. Seealso The jBeWcaiVw, tit. Owkees, p. 1344 ; and 10 P. D. 161 ; 54 L. J. P. D. 88. 15. Dismissing Action. See c. 29, p. 1579. 16. On Issues. 1825. As to judgments or orders on the finding of issues, see c. 38, p. 1639. 17. On Admissions of Evidence. 1826. No judgment or order wherein any written admissions of evidence are entered as read shall be passed, until the written admissions of evidence shall have been filed in the Central Office, or, where the proceedings are taken in a district registry, in the district registry, 'and a note thereof made on the judgment or order by the proper officer. Ord. LXI r. 15, No. 908. 18. On Admission of Facts. 1827. Any party may at any stage of a cause or matter,, where admissions of fact have been made on the pleadings, or otherwise, apply for such judgment or order as upon such admissions he may be entitled to, without waiting for the deter- mination of any other question between the parties; and such order or judgment as he may think just may be made or given thereon. Ord. XXXII. r. 6, No. 376. 19. On Condition. 1828. As to the effect of a judgment or order upon a condition not complied with, see Ord. XLII. r. 2, No. 580. 20. In Proceedings in District Registries. See Nos. 964, 965, p. 1567. 21. For Injunction or Receiver* 1829. No writ of injunction shall be issued. An injunction shall be by a judgment or order, which shall have the effect a writ of injunction previously had. Ord, L. r. 11, No. 667. 1830. For provisions as to applications for injunction, before or after judgment, to restrain, the defendant from the com- mission, repetition, or continuance of the injury, wrongful act, or breach of con- tract complained of, Ibid. r. 12, No. 668. 1830a. As to the powers of the court or judge to grant injunction or appoint a receiver and the proceedings thereon, see Ord. L. r. 6, No. 662, and Wilson's Jud. Acts and Eules, 4th ed. p. 428. 1831. As to the appointment of liqui- dators and receivers, and proceedings thereon, their accounts and liabilities, see Ord. L. rr. 16—23, Nos. 672—679. 1831a., As to the appointment of re- ceivers in actions of co-ownership, see The Ampthill, 5 P. D. 226, No. 2324, tit. Owners, p. 1420. See also c. 43, p. 1666. 22. For Payment of Money or Delivery or Transfer of Property. 1832. Where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any * (572) As to injunctions in the Queen's Bench Division, see Archbold's Practice (14th ed. by Chitty), vol. 1, p. 427, and vol. 2, p. 1277. PRACTICE. Pt. II. In the High Court. Cap. 39. 1647 property real or personal to another, it shall not he necessary to make any demand thereof, but the person so directed shall he hound to obey such judgment or order upon being duly served -with the same without demand. Ord. XLII. r. 1 , No. 579. 23. For Inquiries or Accounts. See c. 24, ss. 5, 6, p. 1571. 24. Rules Nisi and Orders to show Cause. 1833. As to the abolition thereof, see Ord. XXXIX. r. 3, No. 553. 25. Enforcement of — . 1834. As to the enforcement of judg- ments and orders generally, see c. 43, p. 1659. 1835. As to their enforcement against corporations, see No. 1814, supra. [Orders.] 26. Generally.* 1836. As to orders to enter a judgment or order nunc pro tunc, see Ord. LII. r. 15, No. 710. 1837. For forms of different orders, see B. S. 0. 1883, App. K. 27. Bate. 1838. Every order, if and when drawn up, shall be dated the day of the week, month, and year, on which the same was made, unless the court or a judge shall otherwise direct, and shall take effect accordingly. Ord. LII. r. 13, No. 708. 28. Note of— . 1839. Where an order has been made not embodying any special terms, nor including any special directions, but simply enlarging time for taking any proceeding or doing any act or giving leave — (a) for the issue of any writ other than a writ of attachment; (b) for the amendment of any writ or pleadings ; (c) for the fLHng of any document ; or (d) for any act to be done by any officer of the court other than a solicitor, it shall not be necessary to draw up such order unless the court or a judge shall other- wise direct ; but the production of a note or memorandum of such order, signed by a judge, registrar, master, chief clerk, or district registrar, shall be sufficient au- thority for such enlargement of time, issue, amendment, filing, or other act. A direction that the costs of such order shall be costs in any cause or matter shall not be deemed a special direction within the meaning of this rule. The solicitor of the person on whose application such order is made, shall forthwith give notice in writing thereof to such person (if any) as would, if this rule had not been made, have been required to be served with such order. Ibid. r. 14, No. 709. 29. On Petition. 1840. No order on a' petition shall be passed until the original petition shall have been filed, and a note thereof made on the order by the proper officer. Ord. LXI. r. 15, No. 908. 30. Solicitor's Agreements. 1841. As to the making of solicitor's agreements orders of court, see c. 24, p. 1572. 31. Making Submissions or Awards Rules of Court. 1842. No order to make a submission to arbitration or an award an order of court shall be passed until the original submission or award has been filed, and a note thereof made on the order by the proper officer. Ord. LXI. r. 15, No. 908. 32. Charging Stocks or Shares and Stop Orders. 1843. For provisions as to orders for charging stocks or shares in lieu of dis- tringas, see Ord. XLVI. Nos. 631—643; 1 & 2 Yict. c. 110, s. 1 ; "Wilson's Jud. Acts and Rules, 4th ed. p. 412; and Archbold's Practice (14th ed. by Chitty), vol. 2, pp. 919—926. 33. Payment of Money under Lien. 1844. For provision in actions to re- cover directly, or by way of counter- claim, specific property other than land, and the title is not disputed, but a lien * (573) As to orders where a mandamus, mandatory order, injunction or judgment has not been complied with, that (besides pro- ceedings for contempt) the act required to be done may be done as far as practicable by the party obtaining the order, or other person appointed by the court at the cost of the dis- obedient party, see Ord. XLII. r. 30, No. 608. 1648 PRACTICE. Pt. II. In the High Court. Cap. 40. thereon for money is set up, enabling the court or a judge to order the amount of money claimed, with interest and costs, to he paid into court, and the property claimed to he given up to the party claim- ing it, Ord. L. r. 8, No. 664. 34. Order of Execution on Conditional Order taking Effect. See c. 43, p. 1660. 35. For Inspection, Interim Preservation, Custody, and Sale of Property. 1845. See Ord. L. rr. 1—7 ; Nos. 657 — 663 ; Wilson's Jud. Acts and Eules, 4th ed. p. 426 ; and Archbold's Practice (14th ed. hy Chitty), vol. 1, p. 426. 36. Mandamus, Injunction, or Receiver. 1846. See Ord. L. rr. 6, 11, 12; and 15a of 1884 ; Nos. 662, 667, 668 ; Wilson's Jud. Acts and Eules, 4th ed. p. 662 ; Arch- hold's Practice, 14th ed. vol. 1, p. 426; and Ohitty's Porms, 12th ed. p. 246. 37. As to Costs only. 1847. No order of the High Court, or any judge thereof, by consent, or as to costs only, by law are left to the discretion of the court, is subject to appeal, except by leave. See the Supreme Court of Judicature Act, 1873 (c. 66), s. '49 ; and see tit. Appbai, p. 12. 38. In Chambers. (a) Proceedings to set aside — . 1848. Every order made by a judge of the High Court in chambers, except orders as to costs, by law left to his dis- cretion, may be set aside upon notice by any divisional court, or by the judge sitting in court, according to the course and practice of tha division ; and no ap- peal lies from any such order, to set aside or discharge which no such motion has been made, unless by special leave of the judge by whom such order was made, or of the Court of Appeal. Ibid. s. 50. 39. Orders or Decrees of Sale. See c. 44, p. 1667. 40. Registrar's Certificate as to Deposit Security. 1848a. JJ, after a case has been finally disposed of, no taxation of costs is required, the taxing officer may, by consent of the parties, or on being satisfied that any party who has lodged money therein to the " security for costs account " is en- titled to have it paid to him, give a certi- ficate thereof, which shall be acted on like an order. See Ord. XXXI. r. 1 of Oct. 1884. 40. References. 1. Generally.* 1849. Ord. LVI. applies to references * (574) The calculation of damages and all ■matters of account in actions in the Admi- ralty Division are referred by the judge to the registrar to examine and report upon. In these investigations the registrar is gene- rally assisted by two merchants, who hold •standing appointments from the judge for the purpose. After the accounts and proofs on both sides have been filed, the solici- tors on both sides attend the registrar and merchants, when the accounts are investi- gated, and witnesses on both sides are often examined in addition to the proofs filed. The registrar afterwards prepares a report to .the judge, setting forth the items of the claim made, and the items he has allowed and disallowed. (575) "Where the defendant does not desire to dispute his legal liability for the claim set up, but only its amount, the defendant's solicitor may admit his client's legal lia- bility, and nave the claim referred to the registrar and merchants to examine and re- port upon the amount thereof. (576) This is done by the solicitors on both sides entering into an agreement to that effect. (577) The following is the form of such an agreement, after setting out the title of the cause : — We, the undersigned, solicitors for the defendants, hereby admit that the de- fendants are liable for the damages caused by the collision in question in this action, and pray a reference as usual to the registrar, assisted by merchants, to assess the amount thereof; and we, the undersigned, solicitors for the plaintiffs, hereby agree to such refer- ence. It is dated and signed by the respective solicitors. (578) The minute bears a filing stamp .of 5s. ; but no stamp is placed on the agreement. (578a) In a claim involving accounts, the court will generally, as a matter of course, order a reference at the prayer of either party, unless it can be shown that the whole claim turns upon a question of law. (579) A seaman's claim for loss of effects dealt with by the registrar and merchants, although not supported by affidavit, no ob- jection being taken by the defendants. i» Black Diamond, No. 3298, Nov. 1866. E. &»■ (579a) Action in personam for collision. 1M defendants were a limited company. Defen- dants held solely to blame. They appealed* admitting they were to blame, but contending that plaintiffs were also to blame. On appU- PRACTICE. Pt. II. In the High Court. Cap. 40. 1649 by the court or a judge to the Admiralty registrar, whether alone or assisted by one or by two merchants. Ord. LVI. r. 1, No. 838. 1850. The provisions of E. 8. C. No. 550, that in cases of trial by affidavit the evidence shall be printed and notice of trial given as therein mentioned, do not apply to Admiralty references. Ord. XXXVIII. r. 30, No. 550. 1850a. In Admiralty actions in rem, upon default of appearance, if, when the action comes before him, the judge is satisfied that the plaintiff's claim is well founded, he may pronounce for the claim with or without a reference to the Ad- miralty Begistrar or to the Admiralty Registrar assisted by merchants. See Ord. XIII. r. 13, No. 113. 1851. "Where damages are to be as- sessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment. Ord. XXXVI. r. 58, No. 482. 1851a. In Admiralty proceedings, when a ship is arrested on a specific demand before a reference of accounts to the registrar and merchants can be made, it must be shown to the court that some- thing is due, although the actual amount may be the proper subject of inquiry. The practice differs from a reference by a court of equity on an unsettled account where the court directs an account to be taken, leaving it to be shown by the result on which side the balance lies. The West Friesland, otherwise Twentje, 13 Moore, P. C. C. 185 ; Swabey, 454, 459 ; 8 W. E. 423 ; 2 L. T. N.S. 613. 1852. When the legal effect of a bot- tomry bond is intended to be questioned before the registrar and merchants, it is more convenient that the reference to them should be made under the direc- tions of the court. The Cognac, 2 Hagg. 384. 1853. The registrar and merchants can never allow a demand unless it is sub- stantiated by proper vouchers or by proper evidence. The Julindur, 1 Spinks' Eccl. and Adm. Eep. 76. 1854. Although it is the usual practice of the court in collision cases to refer all questions involving the amount of da- mages to the registrar and merchants, yet when consequential damages are claimed, it is in the discretion of the court to deal, at the hearing of the action, with the question whether such damages are recoverable. The Maid of Kent, 6 P. D. 178; 50 L. J. P. D. 71 ; 4 Asp. 476. 1855. Where it is convenient to do so, the court will refer to the registrar sepa- rately one of several consolidated causes. The Helen R. Cooper, L. E. 3 A. & E. 339 ; 40 L. J. Adm. 46. 1856. A reference to the registrar as to damages will not be ordered where the court can satisfactorily dispose of the question. The Eleonore, 3 N. E. 95. 1857. A collision having occurred be- tween the vessels B. & E., whereby the E.'s cargo was lost, a suit was instituted against the B. by the plaintiffs, who described themselves as the owners of the cargo ex E. The B., being held to blame, a reference to the registrar was directed. At the reference it appeared that the plaintiffs were underwriters who had paid the shippers as on a total loss. The plaintiffs produced the bills of lading and invoices of the cargo. Held, that the defendants were entitled to evidence of a discharge from the owners of the cargo, and to better evidence of the value of the cargo before the registrar pro- ceeded to make his report. The John Bellamy, L. E. 3 A. & E. 129 ; 3 Asp. 360. 1857«. In an action of damage to cargo the court referred the assessment of damages to the registrar and merchants, with directions to bear in mind the decisions at common law in two similar cases. The St. Cloud, Br. & Lush. 18. 1858. A claim by the owners of a damaged vessel for loss sustained, esti- mated moderately to avoid litigation, having been rejected, and the matter afterwards referred to the registrar and merchants, the owners are not bound by their original estimate, nor barred of their right to prove an actual loss greater than that estimate. The Two Sisters, 1 Spinks' Eccl. and Adm. Eep. 99. 1858a. On an award of costs and da- mages to a Dutch claimant against an cation by the defendants for a stay pending the appeal, the registrar directed the reference to be proceeded with, notwithstanding the appeal. The Portugalete, 21st Feb. 1885. (580) The registrar having, pending the appeal, reported the amount of damages due to the plaintiffs, the defendants, to prevent execution issuing, gave bail to the plaintiffs in an agreed amount of the damages and costs. Ibid. (580a) As to references in the Queen's Bench Division, to ascertain amount of damages, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 1326. 1650 PRACTICE. Pt. II. In the High Court. Cap. 40. English captor, the court directed the registrar to examine and report as to the damages due, taking to his assistance for that purpose two merchants, to he named by the parties' and approved hy the court, and recommended that the Eng- lish captor should select a Dutch mer- chant, and the Dutch claimant an Eng- lish merchant, for the purpose of such reference. The Fancier Leye, Hay & Marriott, 184. 1859. Where, in an action prior to the Judicature Acts and Eules and Counterclaims, decree had heen made of hoth vessels to blame, the court would not refer the damage of hoth vessels to the registrar, but would leave the de- fendant to his cross action, notwithstand- ing that the ship of the plaintiff perished in the collision and the plaintiff resided out of the jurisdiction. The North American, Swabey, 466. 1860. As to the powers and authority of the registrar and assistant registrar, see Pt. I. p. 1470. 1860o. See also as to inquiries and accounts, c. 24, p. 1571. 2. In Proceedings by Default. 1861. In proceedings by default the judge may pronounce for the claim with or without a reference to the registrar and merchants. Ord. XIII. r. 1 3, No. 1 1 3. 3. On what Subjects. 1862. Senible, it is not competent to the court to devolve on the registrar and merchants the solution of any point of law. The Ocean, 10 Jur. 506. 1863. A decree pronouncing for the validity of a bottomry bond, though con- clusive unless appealed from, determines nothing as to the amount the bondholder is entitled to recover. That is to be as- certained by a reference to the registrar and merchants. The Catherine, 3 W. Eob. 3. 1864. In a cause of bottomry, the court, before deciding upon the validity or in- validity of the bond, referred the case to the registrar and merchants to report, on the whole accounts, whether any ' and what balance was due to the bondholder upon which a bottomry bond could be taken, and any other special matter which might occur to them. The Ocean, 10 Jur. 505 ; 4 Notes of Cases, 410 ; The Gaunt- let, 13 Jur. 414 ; The Roderick Dhu, Swa- bey, 178. 1865. The court on pronouncing for a bottomry bond will refer the accounts to the registrar and merchants to examine and report thereon. The Nelson, 1 Hagg 181 ; The Albion, ibid. 333. 1866. When the premium on a bot- tomry bond is excessive, the court, even in proceedings by default, will refer the matter to the registrar and merchants to report the proper amount to be allowed. The Huntley, 1 Lushington, 24. 1867. The rate of interest at which money may be lent on bottomry is a proper subject for reference to the regis- trar and merchants. La Ysabel, 1 Dod- son, 277 ; The Alexander, ibid. 279 ; The Lord Cochrane, 8 Jur. 716 ; 3 Notes of Cases, 172. 1868. In a bottomry transaction, if the charges for the repairs are excessive, the amount will be referred to the registrar and merchants. The Lord Cochrane, 8 Jur. 716 ; 3 Notes of Cases, 172. 1869. Objections to bills of exchange (given as collateral securities to a bot- tomry bond), as having been drawn at too high a rate of exchange, referred to the registrar and merchants. The Nelson, 1 Hagg. 179. 1870. In an action under the Admiralty Court Act, 1861, for damage to goods, before the Admiralty Court will make a decree as to the amount of damages, the amount must have been ascertained by a reference to the registrar and merchants. The St. Cloud, 8 L. T. N.S. 55. 1871. Where to a claim for damage to cargo, made in an Admiralty action, a counter-claim of general average is set up, it is not necessary that such general average should have been adjusted; but if the evidence supports the fact of a general average loss having been sus- tained, the amount thereof, together with the amount of loss sustained through damage to the cargo, will be referred to the registrar and merchants to report on. The Oquendo, 3 Asp. N.S. 558 ; 38 L. T. N.S. 151. 1872. Semble, in cases of account be- tween master also mortgagee and his co-mortgagee, a question of unliquidated damages cannot be investigated by the registrar and merchants, but must be assessed by a jury. The Repulse, 5 Notes of Cases, 362; 11 Jur. 716. 1873. When a claim for necessaries or supplies is for a large amount, and con- sists of various items, and the proceedings are by default, the court will sometimes, on making a decree in favour of the plaintiff, refer ex mero motu the accounts PRACTICE. Pt. II. In the High Court. Cap. 40. 1651 and vouchers to the registrar with or without merchants to examine and report thereon. The Revenir, 5th August, 1858. 1874. The court will refer a claim, if objected to, of agents' expenses, as a de- duction from a salvage award, to the con- sideration of the registrar and merchants. The Louisa, 2 W. Eob. 24. 1875. Eeference decreed to the regis- trar and merchants of the accounts of a party appointed agent by the master, and claiming also as salvor in that capacity. The Happy Return, 2 Hagg. 207. 1876. Loss and damage of salvors at- tending a salvage service referred to the registrar and merchants to examine and report upon. The Oscar, 2 Hagg. 261 ; The Salacia, ibid. 269 ; The Gladiator, No. 1594, 6th Nov. 1863. 1877. In a cause of wages, accounts for wages, payments on account, &c. referred to the registrar to examine and report upon. The Lady Campbell, 2 Hagg. 14, 15. 1878. In a cause of wages, brought by a mariner, an application of the owner after judgment to refer the schedule of deductions from the wages, respecting which the owners and mariner were not agreed, to the registrar, refused. The Test, 3 Hagg. 316. 1878a. Accounts of charges attending the execution of a commission of unlivery and appraisement referred to the con- sideration of the registrar and merchants as being enormous. L 'Esperance, 1 Dod- son, 50. 4. Where dispensed with. 1879. On a question of small damages, the court, though it might ascertain them more exactly by a reference to the regis- trar and merchants, will, to avoid ex- pense, refrain from ordering a reference if it can itself satisfactorily dispose of the question. £20 awarded as damages, with costs, without a reference. The Eleanore, 33 L. J. N.8. Adm. 19. 1879a. In a cause of damage in which the amount of damages claimed was £10,000, and the nett proceeds only amounted to about £800 ; motion to pay out the balance of proceeds to the proctor for the plaintiffs, duly authorized, granted without a previous reference of the claim and accounts to the registrar and mer- chants. The Viscountess Canning, 15 March, 1860. 1880. In a cause of damage in which judgment had been given for the plaintiff, he claimed £600, and the nett proceeds amounted to £300 only. Motion for pay- ment of the balance of proceeds without a reference, granted. The Zaide Celine, No. 1909, January 26, 1864. 5. Claim and Proofs.* (a) Generally. 1881. In references in Admiralty actions evidence may be given by affidavit. See Ord. XXXVII. r. 2, No. 484. 1882. Within twelve days from the day when the order for the reference is made, the solicitor for the claimant shall file the * (581) The claim, should be entitled in the cause in which it is made. A very short statement of the circumstances under which the claim is made should be inserted. Then should follow a list of the different items of claim numbered consecutively. The vouchers (bills and receipts) for each item should be brought in with the claim, and be numbered to correspond with the item to which they refer in the claim. * (582) A stamp of 5s. should be affixed to the minute on filing the claim, and a stamp of 5s. on each affidavit or other proof, such as protest, survey, &c, but no stamp is re- quired for any of the ordinary vouchers (bills or receipts). (583) It is sometimes sufficient in the first instance to file in addition to the claim the surveys (if any) and the accounts and vouch- ers, though if any items are open to excep- tion it is desirable to file at once affidavits in support of them. The counter-proofs filed on the other side will generally show what items are intended to be impugned, and fur- ther proofs in support of these should then be filed. (584) But, in general, the claimant's soli- citor, unless he intends to examine witnesses at the hearing, should file adequate proofs in support of his claim, as sometimes his oppo- nent files no counter-proofs, but besides or instead of those proofs examines witnesses at the hearing on the reference, and the claimant's solicitor, if not fully prepared to disprove or answer such evidence or objec- tions, will be driven to apply for an adjourn- ment, and if the report is against him he will not, without good cause shown, be allowed to go into further evidence in objection to the report. (585) Cargo books, portage accounts, and other books and accounts in the possession of either party are usually produced by that party on notice in writing to that effect from the opposite party. When this is not done an order for the purpose may be obtained by summons in the usual way. A stamp of 5s. must be affixed to the minute on filing each book or account, if tiled, and not produced merely. 1652 PRACTICE. Pt. II. In the High Court. Cap. 40. claim and affidavits. Ord. LVI. r. 2, No. 839. 1883. In references in Admiralty actions evidence may be given by affidavit. Ord. XXXVII. r. 2, No. 484. (b) In Actions of Bottomry.* (c) In Actions of Damage to Cargo.f .(d) In Actions of Damage by Collision.^ 1884. In estimating the value of a snip lost by collision, the best evidence is the opinion of competent persons who knew the ship shortly previous to the time it was lost. The second best evidence is the opinion of persons conversant with shipping, and the transfers thereof. Many other circumstances may be called in aid, — as the original price of the vessel, the amount of repairs done to her, the sum at which she was insured, and the like ; but these facts have a slighter bear- ing upon the case. The Ironmaster, Swabey, 443. 1885. Shipwrights or persons accus- tomed to shipbuilding, and, semble, who saw the vessel under repair, would be better judges than the merchants assist- ing the registrar of the repairs necessary in consequence of a collision. The Alfred, 7 Notes of Cases, 355 ; 3 W. Eob. 232. 1886. The owner's. books are the best evidence of the earnings of the vessel, and should be produced. The Hebe, 5 Notes of Cases, 182 ; 2 W. Eob. 523. 1887. The owner's affidavit of prime cost, unsupported by documentary proofs, is not sufficient evidence to produce legal conviction. The Clyde, Swabey, 23. 1888. In a case of total loss at sea by collision, a shipowner who has cargo of his own on board is entitled to recover in lieu of freight what would have been the enhanced value of the cargo at its desti- nation, less the expenses of earning that value, and that is the proper form of claim, and not a claim for expenses in making the ship fit for sea. The Tkyatira, No. 125, 5 Asp. 178. (e) In Actions of Masters' Accounts. 1889. The registrar and merchants can- not allow in a master's accounts items for which no vouchers are produced, or which are not substantiated by proper evidence. The affidavit of the master thereon is not * (586) In actions of bottomry the proofs to be filed are inter alia the surveys and the accounts and vouchers for the several sums making up the amount raised on bottomry. t (587) In actions of damage to cargo, when the cargo is lost, or sold in a damaged state, the proofs to be filed are inter alia the bills of lading or invoice showing the nature and quantity of the cargo shipped, the account sales when it is sold in a damaged state, affi- davits of its value at the port of consignment at the time when in ordinary course it would have arrived there, and pro forma account sales showing the disbursements that would have attended its landing, storing, sale, and delivery there. (588) When the cargo is only damaged, in- stead of the pro forma account sales, proofs should be filed of the expenses of re-coopering the casks, drying or otherwise repairing the cargo, and of superintending these repairs. % (589) In actions of damage by collision, when the ship is lost, the proofs to be filed are inter alia her register, if she were a com- paratively new vessel ; affidavits of her classi- fication at Lloyd's, if she had a good class ; affidavits of the different occasions of her having been repaired, and the amounts spent in the repairs, particularly on the last occa- sion. (590) Affidavits as to her value from per- sons experienced in shipping, and who had Been her shortly before she was lost; and affidavits of shipwrights of standing and ex- perience, setting forth the amount for which they would build a new vessel of the same class, size, and equipment. (591) Affidavits of shipwrights and others experienced in shipping, deposing to her value from the particulars contained in her register and classification at Lloyd's, are often filed for want of better proofs, but do not carry much weight with them. (592) The proofs to be filed as to the loss of freight are the charter-party, when the freight is for a lump sum, or the ship's manifest; and a freight account showing the amount of freight that would have been earned and the expenses that would have been incurred in earning it. (593) In actions of damage by collision when the vessel damaged has been repaired, the proofs to be filed are inter alia the sur- veys, the protest, the accounts, and vouchers for the repairs. As to demurrage, affidavits as to the time the vessel was under repair, that the repairs were effected with all prac- ticable expedition, and proof of the vessels average earnings, if she is a vessel of a superior class or engaged in any special (59'3a) The registrar and merchants made deductions from a bill, on the ground that articles were charged therein which had not been mentioned in the report of survey. I «« Thomas Adam, Feb. 1884. E. & M. PRACTICE. Pt. II. In the High Court. Cap. 40; 1653 sufficient. The Julindur, 1 Spinks' Eccl. and Adm. Eep. 72. 1890. As to actions on masters' accounts generally, see tit. Masters, c. 7, p. 1123. 6. Interrogatories. 1891. Either party may apply to the court for an order against the other party to answer interrogatories as well in pro- ceedings before the registrar and mer- chants as in other proceedings. The Kil- larney, No. 997, 26 Sept. 1862. 1892. On a reference to the registrar and merchants in a cause of damage by collision, certain of the plaintiffs had filed affidavits as to their private effects lost in the collision. Motion to the court by the defendants before the hearing on the reference to order those plaintiffs to an- swer interrogatories touching the matters referred to in their affidavits, granted. The Killarney, No. 997, 26 Sept. 1862. 1893. As to interrogatories generally, see c. 35, p. 1616. 7. Counter- Claim.* 1894. 8. Counter-Proofs. "Within twelve days from the day when the claim and affidavits were filed by the solicitor for the claimant, the ad- verse solicitor shall file his counter-affi- davits. Ord. LVI. r. 2, No. 839. 9. Further Proofs. 1895. Prom the filing of the counter- affidavits of the adverse solicitor six days only shall be allowed for filing any further affidavits by either solicitor, save by order of the court or a judge, or by permission of the registrar. Ibid. r. 3, No. 840. 10. Notice of Hearing.] 1896. Within three days from the ex- piration of the time allowed for filing the last affidavits, the solicitor for the claimant shall file in the registry a notice, with the stamps for the reference affixed thereto, praying to have the reference placed on the list for hearing. Ord. LVI. r. 4, No. 841. 1897. If he shall not do so, the adverse solicitor may apply to the court or a judge to have the claim dismissed with costs. Ibid. 11. Hearing. % 1898.. At the time appointed for the reference, if either solicitor be present, * (594) When a contradictory set of accounts is intended to be set up by the defendant, as in cases of masters' accounts and accounts be- tween part owners, the proper course is for the defendant's solicitor to file a counterclaim set- ting forth the items in the plaintiff's account to which the defendant objects, and any fur- ther payments or other counter-charges the defendant claims to be allowed. The issue is thus conveniently narrowed to the items in the counterclaim only, and those items only are discussed on the reference. (595) When it is probable that a counter- claim will be set up, the plaintiff should, in the first instance, confine himself to filing his claim and vouchers, reserving his proofs until he is made aware by the filing of the counterclaim what items in his accounts are disputed. (596) When the accounts are much in- volved it is desirable for the defendant, be- sides filing a counterclaim, to file, in illustra- tion of his case, an account current showing the state of accounts he contends for. (596a) As to accounts under directions, see c. 24, s. 6, p. 1571. t (597) The notice to place a reference on the list for hearing should set forth the proper style and title of the court and cause, and that the solicitor (stating his name) for the plaintiff or defendant, as the case may be, desires that the reference in that action may be placed on the list for hearing. (597a) The notice should be dated and signed by the solicitor or his clerk for him. Forms of these notices may be obtained in the registry. (598) A stamp of ten shillings must be impressed on the notice. % (598a) In addition to the proofs filed, wit- nesses may be examined at the hearing on the reference, and subpoenas to enforce their attendance may be obtained from the regis- try in the usual way. As to subpoenas, see c. 35, p. 1630. (599) Notice of the time appointed for the hearing of the reference is sent from the re- gistry to the practitioners on both sides. (600) The hearing fees are paid after the reference, and when the report is taken up. (601) The parties interested, their clerks or managers, or the master of the vessel, or others engaged in superintending the repairs or other matters the subject of the claim, may attend the reference and make state- ments thereon, not on oath, to the registrar and merchants, thongh the other side gene- rally requires them to be sworn as witnesses. (602) It is generally advisable that one of such parties on each side should attend the reference, in order to answer inquiries of the registrar and merchants on technical matters . 1654 PRACTICE. Pt. II. In the High Court. Cap. 40. the reference may be proceeded with. Ord. LVI. r. 5, No. 842. 1899. Witnesses may be produced be- fore the registrar for examination, and the evidence shall, on the application of either solicitor, but at the expense in the first instance of the party on whose be- half the application is made, be taken down by a shorthand writer or reporter appointed by the court, who shall be sworn faithfully to report the evidence. Ibid. r. 6, No. 843* - 1900. A transcript of the shorthand writer's or reporter's notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses on an objection to the registrar's report. Ibid. 1901. Counsel may attend the hearing of any reference, but the expenses at- tending the employment of counsel shall not be allowed on taxation, unless the registrar shall be of opinion that the at- tendance of counsel was necessary. Ibid. r. 7, No. 844. 1902. As to the shorthand writers of the court, see Pt. I. c. 4, p. 1473 ; and c. 35, p. 1623. 1903. In an action for damage by col- lision in which the damage was pro- nounced for and a reference ordered to the registrar and merchants, the defen- dant's solicitor declined to attend the reference, on the ground that the damages were fixed when the bail was accepted. Held, that he ought to have attended the reference and urged his objection. The Mellona, 3 "W. Eob. 16; 6 Notes of Cases, 62. 1904. The fees payable on proceedings before the registrar and merchants are, when the reference is to the registrar only, from five guineas to fifteen guineas (including examination of witnesses, if any), according to the nature and import- ance of the accounts and matters and the time occupied. If the attendance of one or more merchants is required, for each merchant the same fee as to the regis- trar. See E. 8. C. Oct. 1884, Nos. 84, 85. 1905. In cases of great intricacy or of very large amount occupying more than two full days, larger fees may be taken not exceeding five guineas additional per day to the registrar and to each merchant for every subsequent day. Ibid. No. 86. 1906. In eases where the accounts to be investigated do not exceed £500, and where the time occupied is short, fees may be taken for the registrar and each mer- chant of from one guinea to four guineas. Ibid. No. 87. 1907. The same fees are payable on a reference before a district registrar. Ibid. 12. Adjournment.] 1908. The registrar may adjourn the reference from time to time, as he may deem proper. Ord. LVI. r. 5, No. 842. 1909. The registrar will adjourn the further hearing on the reference for reasonable cause. The Kepler, 1 Lush- ington, 201. 1910. Thecourt will generally condemn in costs the party who applied for the adjournment, and failed in the proofs to supply which the adjournment was al- lowed. Ibid. 13. Special Case. 1911. The registrar may, if he thinks in which the practitioners cannot be expected to be proficient. (603) By the old practice the case of each party was conducted by his solicitor at the hearing on the reference, but the practice of employing counsel is increasing, and is in important cases favoured by the court. (603a) An affidavit, of which no copy had been served on the other side, was tendered by the defendants at a late stage of the re- ference, and after the plaintiff's witnesses had been examined. No sufficient excuse for this irregularity being given, the affidavit was rejected. The Argos, No. 5958, July, 1872. E. &M. * (604) In ordinary cases, however, the registrar will take notes of the evidence, and furnish an office copy of them to the parties should the report be objected to. (604a) Where large charges for labour were made in a shipwright's account the re- gistrar called for the production of the ship- wright's books. TheBergo^or. 1884. B.&M. t (605) If either party is taken by surprise by any objections of his opponent, of which, from the counter-proofs filed, or the absence thereof, or otherwise he had not received reasonable notice, the registrar will usually adjourn the reference to give that party the opportunity of further proof. (605a) In an action of damage, the hearing of the reference on the plaintiff's claim, which had already extended over several days, was adj ourned, in order that the defendants might send a commission abroad to obtain further evidence in support of an important objection raised by them during the hearing, although ample time had elapsed since the collision tQ enable them to be fully prepared to establish their objection. The Atalanta, No. 60a6, Aug. 1875. R. & M. PRACTICE. Pt. II. In the High Court. Cap. 40. 1655 proper, and before making his report, submit a special case for the decision of the court on any question of law. The Immaculato Concezione, 9 P. D. 37. 1912. See also The John Bellamy, L. E. 3 A. & E. 129 ; 39 L. J. Adm. 28 ; and as to special cases generally, see c. 24, p. 1572, and c. 38, s. 13, p. 1638. 14. Report.* 1913. The report of the registrar and merchants need not be special upon every particular matter. Their allowing the item to stand is sufficient, the inference therefrom being, not that they have omitted to take it into consideration, but that they consider it a proper and allow- able charge. The Ocean, 10 Jur. 506. 1914. The registrar may, if he think fit, report whether any and what part of the costs of the reference should be al- lowed, and to whom. Ord. LVI. r. 8, No. 845. 15. Filing of Report. 1915. The solicitor for the claimant shall, within six days from the time when he has received a notice from the registry that the report is ready, take up and file the same in the registry. Ibid. r. 9, No. 846. 1915a. If the solicitor for the claimant shall not take the steps prescribed in the last preceding rule, the adverse solicitor may take up and file the report, or may apply to the court or a judge to have the claim dismissed with costs. Ibid. r. 10, No. 847. 16. Costs and Damages. 1916. When a party is condemned in . costs and damages the damages will be ordered to be assessed by the registrar. The Cathcart, L. E. 1 A. & E. 314; The Don Ricardo, 5 P. D. 121 ; 49 L. J. Adm. 28; The Hazard, 29 March, 1860. 1916a. For cases of condemnation in costs and damages, see tit. Costs, p. 369. 17. Costs. 1917. As costs are in the discretion of the court, the rule in the Admiralty Court as to costs of references, that where more than a fourth is struck off a claim, each party pays his own costs, and, where more than a third, the claimant pays the other party's costs, is wrong. The' court must exercise its discretion according to the cir- cumstances of each case {The Empress Eugenie, Lush. 140, overruled). The Friedeberg, 10 P. D. 112.f 1918. Bee also No. 1914, supra, and tit. Costs, c. 17, p. 358, and same title and chapter in Addenda. 18. Objections to Report. (a) Generatty.% 1919. On objection to the report of the registrar and merchants, assessors were appointed to assist the registrar and mer- chants in the re-consideration of their re- port, the judge himself being also present in the registry. The Sir George Seymour, 1 Spinks' Eccl. and Adm. Eep. 67 ; 17 Jur. 402. 1920. On objection to a report on a question of consequential damage the judge was assisted by Trinity Masters. The Pensher, Swabey, 213. 1920a. In actions of bottomry the court will not interfere with the discre- tion of the registrar and merchants in disallowing or reducing the accounts where they deem them unnecessary or exorbitant, unless it is shown they have acted 'on an erroneous principle. The Pontida, 9 P. D. 102, 177, C A. ; 5 Asp. 330. 1921. On objections to the report, the court will not allow the party to set up a case which he did not endeavour to esta- blish at the reference. The Glenmanna, 1 Lushington, 115. 1922. On objection to the report of the registrar and merchants no objection can * (606) No stamp is now charged for the registrar's report. The usual stamps for an office copy are payable on an office copy of the report bespoken by each party when the report is taken up. (607) By the old practice, prior to the Eules and Orders of 1859, now annulled, a formal order of the court was taken confirming the report ; but by the new practice no express confirmation of the report is necessary, unless it is required to enforce it. (608) Where the report of the registrar had been confirmed by the court, it could not be reopened except under very peculiar circum- stances — res noviter ad notitiam perventa, into which the court might think it fitting to in- quire. The Catherine, 5 Notes of Cases, 402 ; The Gauntlet, 13 Jur. 414. (609) And it has been held that a report after confirmation was binding upon the court. The Gauntlet, 13 Jur. 414. t (610) The court, however, though exer- cising its discretion in each case, is still in- fluenced by similar considerations. % (610a) For forms of pleadings in objec- tion to the registrar's report, see Eoscoe's Adm. Practice, 2nd ed. App. pp. 513 — 516. 165$ PRACTICE. Pt. II. In the High Court. Cap. 40. be made before the court to an item which was not questioned before them. The Princess Helena, 30 L. J. Adm. 1 37 ; 1 Lushington, 190. 1923. The court strongly disapproves of objections to the registrar's report on small items (such as an item of £1 : 10s.) even along with larger items. Ibid. No. 68, Jan. 18, 1861. 1924. On objection to such minor items as £9: 12s. in cases of damage, the court will not enter into the minutiae of the ob- jections, nor of the reasons by which the judgment of the registrar and merchants was influenced. The Hebe., 2 "W. Bob. 533. 1925. See also No. 1914, supra. (b) Notice of Objection. 1926. A solicitor intending to object to the registrar's report shall, within six days from the filing of the report, file in the registry a notice, a copy of which shall have been previously served on the ad- verse solicitor. Ord. LVI. r. 11, No. 848. 1927. A report of the registrar and merchants does not necessarily stand con- firmed by reason of the defendants failing to take objection thereto within the time provided for in Admiralty Court Rules, 1859, r. 117, so as to absolutely entitle the plaintiffs to payment to them by the defendants of a sum of money which the court is of opinion ought not to have been allowed them in the report. The Thyatira, 5 Asp. 178. 1928. The court has power to .extend the time within which objection to the report of the registrar and merchants may be taken. Ibid. (c) Petition in Objection.* 1929. The solicitor objecting to the registrar's report shall, within twelve days from his filing in the registry the notice of objection to the report, file his petition in objection to the report. Ord LVI. r. 11, No. 848. 1930. In proceedings by a defendant in objection to the registrar's report, the prayer with which the petition concludes should not be to deduct from the sum awarded in the report the amount of the items objected to, but to reject such items. The Edmund, 15 March, 1860. (d) Pleadings and Proofs. 1931. All the rules respecting the pleadings and proofs in an action and the printing thereof, shall, so far as they are applicable, apply to the pleadings, proofs, and printing in an objection to a report of the registrar. Ord. LVI. r. 12, No. 849. 1932. A transcript of the shorthand writer's or reporter's notes of the evidence of witnesses produced before the registrar, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses on an objection to the regis- trar's report. Ibid. r. 6, No. 843. (e) Further Evidence. (aa) Qenerally.\ 1933. Fresh evidence will not be allowed unless the party seeking to introduce it can satisfy the court that by proper dili- gence and by proper application it could not have been produced in the court below. The Thuringia, 41 L. J. Adm. 20 j 1 Asp. N.S. 166 ; 20 L. T. N.8. 446. 1934. The Eules and Orders of Nov. 1859 (now annulled, see App. 0. to Eules of 1883, No. 22, but substantially re-isfroed in Ord. LVI. of 1883), have no effect on the restraining power of the judge, nor did they fetter his discretion as to the ad- missibility of fresh evidence upon an ob- * (611) Under the Eules and Orders of 1859, -which were similar to the present, held that objections to a report of the registrar and merchants could not be made by motion except by consent of both parties. The Ed- mond, 2 L. T. N.S. 521 ; 1 Lush. 211. (612) The court, in a case occurring prior to the Eules and Orders of Nov. 1859 (now repealed), consented to hear objections to the report of the registrar and merchants on motion, the amount being small. The Zodiac, 1 Hagg. 323. t (613) On objection to the registrar's re- port in a cause of damage, new evidence was, under the old practice, admissible as of course. The Ironmaster, Swabey, 442 ; The Alfred, 3 W. Eob. 232; 14 Jur. 155; 7 Notes of Oases, 352; The Sir George Seymour, 1 Spinks' Ecol; & Adm. Eep. 68, 70 ; and see The Julindur, ibid. 73 ; The Egyptian, No. 1321, March 15, 1864. (614) Although even then it was not per- mitted to parties to withhold evidence at the reference, and make a new case before the court on objection to the report. The Glen- manna, 1 Lush. 122. (615) In a cause of wages, on objection by the master to the registrar's report, the court allowed the master at the risk of costs to examine a witness orally in open court in support of his objections. The Julindur, 1 Spinks' Eccl. & Adm. Eep. 73. PRACTICE. Pt. II. In the High Court. Cap. 40. 1657 jection to a report of the registrar and merchants. The Flying Fish, 3 Moore, P. C. C. N.8. 85 ; Br. & Lush. 436 ; 34 L. J. Adm.P. C. 113; 2 Asp. 121 ; 12 L. T. N.S. 619. 1935. Upon objections to the registrar's report, the discretion possessed by the judge as to the admissibility of further evidence must always be exercised with great caution, and with a careful regard to the peculiar circumstances of each case. Ibid. ; The Thuringia, supra. (bb) Applications to admit. 1936. A motion to admit additional evi- dence on objection to the report of the registrar and merchants, by reason of surprise, should be founded upon affida- vits setting forth the names of the pro- posed witnesses and the nature of their testimony. The Thuringia, supra. (f) Burthen of Proof.* 1937. The court will not interfere with the report of the registrar and merchants unless it is fully convinced that they are in error. The Clyde, Swabey, 23. 1938: The court has not the benefit of the oral communications which take place at the reference between the registrar and merchants, and the parties concerned who are there present, — explanations which may be of great utility to ascertain the truth. It inclines, therefore, to support the report. The Sir George Seymour, 1 Spinks' Eccl. & Adm. Eep. 70 ; The Clyde, Swabey, 25. 1939. The court is extremely unwilling to disturb the reports of the registrar and merchants, made in cases of damage, on the amount of loss incurred, and of the compensation due; because, from their experience in such matters, they are fully competent to arrive at a just and proper conclusion, and most able to judge of the value of the property lost.' The Matchless, 10 Jur. 1017; The Sir George Seymour, 1 Spinks' Eccl. & Adm. Eep. 67, 70. 1940. In considering objections to the report in a cause of damage, the court is inclined to confirm the report, especially in matters within the practical knowledge of the merchants. The Alfred, 7 Notes of Cases, 354 ; 3 W. Eob. 235 ; 14 Jur. 155; The Clyde, Swabey, 25. 1941. But it is the duty of the court to form its own opinion on the evidence as to whether the items objected to have or have not been properly disallowed, and when satisfied with the evidence adduced in support of the objections to direct the report to be reformed. Ibid. 1942. It is an established principle of the Admiralty Court that those who take objections to the report of the registrar and merchants aro bound to prove their objections by clear and satisfactory evi- dence. The onus of proof rests with the objectors. The Edmond, 1 Lush. 63 ; 2 L. T. N.S. 194; 29 L. J. Adm. 77; The Clarence, 3 "W. Eob. 286 ; The Gazelle, 2 ibid. 285 ; 8 Jur. 429 ; 3 Notes of Cases, 75 ; 2 W. Eob. 285. 1 943. The court will not overrule the re- port without being perfectly satisfied that upon the evidence, which it is their duty to take into consideration, the report ought not to be maintained. The Iron- master, Swabey, 443; The Clyde, ibid. 23. 1944. In all ordinary questions, espe- cially those of a mercantile nature, and connected with the customs of merchants, the presumption is strong in favour of the report of the registrar and merchants. The Princess Helena, 30 L. J. N.S. Adm. 137; Lush. 191. 1945. On questions of commission and the like great trust is reposed by the court in the judgment of the registrar and merchants, who have greater practical knowledge than the court on these sub- jects. To induce the court to support objections to their report, the affirmative of proving that the report is wrong must be clearly substantiated by the objectors. The Glenmanna, 1 Lush. 123. (g) Second Reference. 1946. The report of the registrar and merchants was objected to on the ground of the insufficiency of evidence produced to them as to the value of the property, and a second reference prayed for the purpose of offering further evidence. A second reference allowed on payment of the costs both of the first reference and * (616) The commissioner's report of da- mages, when_ parties have been fully heard before him with their proofs, and no question of law is involved in his decision, will be P. adopted by the court, unless palpable errors or inadvertencies have been committed by him. The Narraganeett, Olcott, Adm. 246. [Ameeioan.] • 5 o 1658 PRACTICE. Pt. II. In the High Court. Cap. 41. of the application for the second. The Matchless, 10 Jur. 1017. 1947. On .objection to the report of the registrar and merchants, assessors were appointed to assist the registrar and merchants in the re-consideration of their report, the judge himself being also present in the registry. The Sir George Seymour, 17 Jur. 402. 1948. After certain objections to the re- gistrar's report had been made and con- sidered, and the report referred back to the registrar for amendment, objections to the amended report made and con- sidered, and some items allowed and some disallowed, and no order made as to costs. The City of Buenos Ayres, 25 L. T. 672. (h) Costs. 1949. As to costs of objections to report of registrar and merchants, see tit. Costs, c. 18, p. 362. 19. Measure of Damages. 1950. As to the measure of damages and their awards thereon, see tit. Regis- trar and Merchants. 20. Awards of Registrar and Merchants. 1951. As to the awards of the regis- trar and merchants on investigation of accounts in actions of bottomry, limitation of liability, master's accounts, mortgage, necessaries, repairs and supplies, posses- sion, accounts between part owners, and wages, see tit. Registrar and Merchants. 1952. As to the measure of damages awarded by the registrar and merchants in actions of damage by collision, damage to cargo, and in actions of salvage where the salving vessel has sustained damage in rendering the service, Ibid. 1953. As to the measure of costs and damages, Ibid. 2 1 . Official or Special Referees. 1954. As to the appointment of official referees, their duties and remuneration, see the Supreme Court of Judicature Act, 1873 (c. 66), ss. 83, 85. 1955. For provisions as to references to an official or special referee, the en- forcement of his report, the trial and procedure before him, and his authority in reference thereto, Ibid. ss. 56—59. 22. District Registrars. 1956. As to the reference, of accounts and inquiries, to district registrars, Ibid s. 66. 1957. As to the fees payable on references to district registrars, see R. S. C, Oct. 1884, Nos. 84—87. 1958. Where in a co-ownership action in a district registry an account is claimed "under Ord. III. r. 8, and the registrar directs and takes such account under Ord. XV. r. 1, his report is like the ordinary report in an Admiralty action, and should be objected to within the six days prescribed by Ord. LVI. r. 11. Gowan v. Sprott, 5 Asp. 288. 1959. After the registrar has taken the account and made his report it is too late to object to the original order directing the account. Ibid. 1 960. As to district registrars generally, see Pt. I. p. 1471 ; and as to proceedings generally in district registries, see Pt. II. p. 1566. 41. Official Referees.* 1961. As to the distribution of busi- ness among official referees, see Ord. XXXVI. rr. 45, 47, Nos. 469, 471. 1961a. As to their sittings, see Ord. LXin. r. 16, No. 960. 1962. As to powers of official referees to order discovery and production of documents, see Ord. XXXVI. rr. 50,-51, Nos. 474, 475. 1963. As to trial generally by official referees, see ibid. rr. 48— 50, Nos. 472 — 474 ; and Ord. XL. r. 6, No. 564. • 1964. As to the power of an official referee before the conclusion of any trial before him, or by his report to submit any questions for the decision of the court, or state facts specially, see Ord. XXXVI. r. 52, No. 476. 1965. As to referee's report, see ibid. rr. 53—55, Nos. 477—479. » 1966. Asto the fees of official referees, see Order of 24th April, 1877, in Wilson 8 Jud. Acts and Rules, 4th ed. p. 786. * (617) In the Admiralty Division the duties of official referees are discharged by the registrar and merchants of the court. See tit. Kegistrar and Merchants ; and as to their practice, c. 40, p. 1648. (617a) As to official referees, fc^$F*fc ment, powers, procedure, &c, see wuson Judicature Acts and Eules (4th ed.), pp. M —65. PRACTICE. Pt. II. In the High Court. Caps. 42, 43. 1659 42. Arbitrations. 1 . Generally.* 1967. For the principles and rules of procedure in cases of arbitration, both conpulsory and by consent, see 9 "Will. 3, c. 15; 3 & 4 Will. 4, c. 42, the Common Law Procedure Act, 1854 (c. 125), ss. 3—17 ; Archbold's Practice of the Court of Queen's Bench (14th ed. by Chitty), vol. 2, p. 1585; Wilson's Judi- cature Acts and Eules (4th ed.), pp. 340 — 345 ; and the provisions of the Common Law Procedure Act, 1854 (c. 125), therein referred to. 1968. All submissions to arbitration made orders of court shall be transmitted to and left at the Central Office to be there filed and preserved. Ord. LXI. r. 31, No. 924. 1969. No order to mate a submission to arbitration, or an award an order of the court, shall be passed until the ori- ginal submission to arbitration or award shall have been filed in the Central Office; or where the proceedings are taken in a district registry, in the district registry, and a note thereof made on the judgment or order by the proper officer. Ibid. r. 1 5, No. 908. 1970. The court has no power under the Common Law Procedure Act, 1854 (c. 125), nor under the Eules of 1883, to enforce the attendance, before an arbi- trator not being an official referee, of witnesses residing in Scotland or Ireland. Hallv. Brand, 16 November, 1883. 1971. For provisions in compulsory references to arbitration, that any party to the reference may appeal from the award upon any question of law, and that the appeal shall be to a divisional court, see Ord. LIX. r. 3, No. 886. 1972. An application to set aside an award may be made at any time before the last day of the sittings next after such award has been made and published to the parties. Ord. LXIV. r. 14, No. 974. 1973. Nothing in this order (as to trials and arbitrations) shall affect any proceedings under any of the provisions of the Common Law Procedure Acts relating to arbitration. Ord. XXXVI. r. 10, No. 434. 1974. As to the powers of the Court of Admiralty prior to the Judicature Acts in relation to arbitrations, see the Admiralty Court Act, 1861 (c. 10), s. 23. 1975. Negotiation by the owner to refer a claim of salvage to arbitration, is no conclusive admission of salvage ser- vices rendered, or negation of a defence, on the ground of the salvor's misconduct. The Martha, Swabey, 490.+ 2. Forms. \ 1976. For forms of order of reference to arbitration, see E. S. C. 1883, App. K. No. 24. 1977. For forms of orders of reference to arbitration under ss. 56 and 57 of the Judicature Act, 1873 (c. 66), Ibid. Nos. 32 and 33. 1978. For forms of orders for witnesses to attend and be examined, and produce documents before arbitrator, Ibid. Nos. 25 and 26. 43. Writs of Execution. 1. Generally. § 1979. In these rules the term " writ of execution" shall include writs of fieri •(618) No case of a submission to arbi- tration made a rule of court in an action in the Admiralty Division has as yet arisen, but it is apprehended the submission should be filed in the Central Office and not in the Admiralty Registry. t (619) As to the effect of a reference to arbitration on the jurisdiction of the Court of Admiralty prior to the Judicature Acts, see The Purissima Conception, 1 Notes of Cases, 151. \ (620) As to arbitration in the Queen's Bench Division, see Archbold's Practice (14th ed. by Chitty), vol. 2, pp. 1585—1669; and for forms of orders, agreements, and deed of reference by consent, bond of submission, re- vocation, notices, appointments, and awards, and other forms connected with arbitrations both compulsory and by consent, see Chitty's Forms of Proceedings in the Queen's Bench Division (12th ed.), pp. 827—861. § (621) As to the old practice of the Court of Admiralty in regard to monitions, see The Governor Baffles, 2 Dodson, 17; The Lusi- tano, 1 W. Bob. 166 ; The Wilhelmine, 2 Notes of Cases, 218 ; The Eliza, No. 1605, 16th Feb. 1864 ; The Wilhelmine, 2 Notes of Cases, 218 ; The Johannes Chrutoph, 2 Spinks' Eccl. & Adm. Eep. 93. (622) And in a case of misnomer, see The Perseverance, 2 Browne's Civ. & Adm. Law App. 542. (623) A monition to pay money would be decreed to issue at the same time against the party principal and his bail. (624) As to the procedure and writs of 5 O 2 1660 PRACTICE. Pt. II. In the High Court. Cap. 43. facias, capias, elegit, sequestration, and attachment, and all subsequent writs that may issue for giving effect thereto. And the term " issuing execution against any •party" shall mean the issuing of any such process against his person or pro- perty as under the preceding rules of this order shall be applicable to the case. Ord. XLIL r. 8, No. 586. 1980. Every order of the court or a judge in any cause or matter may be enforced against allpersonsbound thereby in the same manner as a judgment to the same effect. Ibid. r. 24, No. 602. 1981. Nothing in this order shall take away or curtail any right heretofore existing to enforce or give effect to any judgment or order in any manner or ■against any person or property whatso- ever. Ibid. r. 28, No. 606. 1982. Nothing in this order shall affect the order in which writs of execution may be issued. Ibid. r. 29, No. 607. 1983. No subpoena for the payment of costs shall be issued. Ord. XLIII. r. 7, .No. 619. 2. Order of Execution on Conditional Order taking Effect. 1984. "Where a judgment or order is to the effect that any party is entitled to any relief subject to or upon the fulfilment of any condition or contingency, the party so entitled may, upon the fulfilment of the condition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the court or a judge for leave to issue execution against such party. And the court or judge, if satisfied that the right to relief has arisen according to the terms of the judgment or order, may order that execution issue accordingly, or may direct that any issue t>r question necessary for the determina- tion of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried. Ord. XLII s r. 9, No. 587. 3. For or against Third Parties. 1985. Any person not being a party to a cause or matter, who obtains any order, or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to such cause or matter ; and any person not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order 1 as if he were a party to such cause or matter. Ibid. r. 26, No. 604. 4. Against Corporations. 1986. Any judgment or order against a corporation wilfully disobeyed may, by leave of the court or a judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other ofiicers thereof, or by writ of sequestration against their pro- perty. Ibid. r. 31, No. 609. 5. Against a Firm. 1987. Where a judgment or order is against a firm, execution may issue:— (a) Against any property of the partner- ship ; (b) against any person who has appeared in his own name under Ord. XII. r. 15, or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against any person who has been served, as a partner, with the writ of summons, and has failed to appear. If the party who has obtained judgment or an order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the court or a judge for leave so to do ; and the court or judge may give such leave if the lia- bility be not disputed, or if such liability be disputed, may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined. Ibid. r. 10, No. 588. • 6. Liability of Ship. (a) For Orders against Owner or Master. 1988. For provisions in cases where any court, justice, or other magistrate,- has power to order payment of any sea- man's wages, penalties, or other sums ot money, then, if the party so dirked to pay is the master or owner of a snip, w e attachment for enforcing decrees in the American Admiralty Courts, see 2 Conkling's Adm. Prac. (2nd ed.) p. 430 : Dunlap's Ibid. 135—140, 258. (624a) As to Writs of execution in the Queen's Bench Division, see Arohbolds Praotice (14th ed. by Chitty), vols. 1 aofl .', pp. 836-927 ; and Ohitty's Forms (12th ed.), pp. 389—460. PRACTICE. Pt. II. In the High Court. Cap. 43. 1661 functionary who made the order may, in addition to other powers for compel- ling payment, direct the amount unpaid to be levied by distress or poinding and sale of the ship, her tackle, furniture, and apparel, see the M. S. Act, 1854 (c. 104), s. 523. 7. When Issuable. 1989. Every person to whom any sum of money or costs shall be payable under a judgment or order shall, so soon as the amount is payable, be entitled to sue out one or more writs of fieri facias or of elegit to enforce payment thereof, but if the judgment or order is for payment within a period therein mentioned, no such writ shall be issued until after the expiration of such period. Ord. XLII. r. 17, No. 595. 1990. A party who has obtained judg- ment or an order, not being a judgment for payment of money or costs, or for the recovery of land, may issue execution in .fourteen days, unless the court or a judge shall order execution to issue at an earlier or later date with or without terms. Ibid. r. 19, No. 597. 1991. As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment or the date of the order. Ibid. r. 22, No. 600. 8. Applications for Leave to issue. (a) In Special Cases.* 1992. For provisions that: — (a) where 6ix years have elapsed since the judgment or order, or a change has taken place by death or otherwise in the parties entitled or liable to execution ; (b) where a husband is entitled or liable to execu- tion for or against a wife ; (c) where a party is entitled to execution on a judg- ment of assets in futuro ; (d) where a party is entitled to execution against any of the shareholders of a joint stock company upon a judgment recorded against the company, or their representa- tive, the court or a judge may be applied to for leave to issue execution. Ibid. r. 23, No. 601. 9. Separate Writs. (a) For Money and Costs. 1993. Upon any judgment or order for the recovery or payment of a sum of money and costs, there may be, at the election of the party entitled thereto, either one writ or separate writs of exe- cution for the recovery of the sum and for the recovery of the costs, but a second writ shall only be for costs, and shall be issued not less than eight days after the first writ. Ibid. r. 18, No. 596. 10. Stay of— . 1994. The court or a judge may, at or after judgment or order for payment of money or costs, stay execution until such time as they or he shall think fit. Ibid. r. 17, No. 595. 1995. Owners of cargo on board the M. recovered judgment against the A. for damage by collision. The M. then insti- tuted a suit against the A. in respect of the same collision. The owners of the A. applied for a stay of execution in the first action until after judgment in the second, on the ground that otherwise it would be necessary for them to commence a suit for limitation of liability, which, in the event of their succeeding in the second, would be unnecessary. Application refused. The Alne Holme (1st action), 4 Asp. 593. 1996. For provisions abolishing pro- ceedings by auditd quereld, and that any party against whom judgment has been given may apply to the court or a judge for a stay of. execution or other relief againBt the judgment, on the ground of facts having arisen too late to be pleaded, see Ord. XLII. r. 27, No. 605. 11. Forms. 1997. The forms of the various writs of execution in Appendix H. are to be used, with such variations as circumstances may require. Ibid. r. 14, No. 592. 12. Date and Teste. 1998. Every writ of summons and also (unless by any statute or by these rules it is otherwise provided), every other writ shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Lord Chancellor, or if the office of Lord Chancellor 'shall be vacant, in the name of the Lord Chief Justice of England. Ord. II. r. 8, No. 10. 13. Endorsement. 1999. Every writ of execution shall be * (625) As to proceedings for leave to issue executions after lapse of time and change of parties, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 955. 1662 PRACTICE. Pt. II. In the High Court. Cap. 43. indorsed with the name and place of abode or office of business of the solicitor actually suing out the same, and when the solicitor actually suing out the writ shall sue out the same as agent for another solicitor, the name and place of abode of such other solicitor shall also be indorsed upon the writ ; and in case no solicitor shall be employed to issue the writ, then it shall be endorsed with a memorandum expressing that the same has been sued out by the plaintiff or de- fendant in person, as the case may be, mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's or defendant's residence, if any such there be. Ord. XLII. r. 13, No. 591. 14. Talcing out. (a) Generally.* 2000. No writ of execution shall be issued without the production to the officer by whom the same should be issued of the judgment or order upon which the writ of execution is to issue, or an office copy thereof, showing the date of entry. And the officer shall be satis- fied that the proper time has elapsed to entitle the creditor to execution. Ibid. r. 11, No. 589. (b) Notice or Prcecipe. 2001 . No writ of execution shall be issued without the party issuing it, or his solicitor, filing a prcecipe for that pur- pose. The prcecipe shall contain the title of the action, the reference to the record, the date of the judgment, and of the order, if any, directing the execution to be issued, the names of the parties against whom, or of the firm against whose goods, the execution is to be issued ; and shall be signed by or on behalf of the solicitor of the party issuing it, or by the party issuing it, if he do so in person. The forms in Appendix GL shall be used, with such variations as circumstances may require. Ibid. r. 12, No. 590. 15. Levy. (a) Generally. 2002. Every writ of execution for the recovery of money shall be indorsed with a direction to the sheriff, or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered under the judgment or order, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of £4 per cent, per annum from the time when the judgment or order was entered or made, provided that in cases where there is an agreement between the parties that more than £4 per cent, interest shall be secured by the judgment or order, then the indorsement smay be accordingly to levy the amount of interest so agreed. Ibid. r. 16, No. 594. (b) Interest. See previous No. (c) Poundage Fees and Expenses. 2003. In every case of execution the party entitled to execution may levy the poundage fees, and expenses of execu-- tion, over and above the sum recovered. Ibid. r. 15, No. 593. 16. How long in Force. 2004. A writ of execution, if unexe- cuted, remains in force for one year only from its issue, unless renewed. Ibid. r. 20, No. 598. 17. Renewal. 2005. A writ of execution may, at any time before its expiration, by leave of the court or a judge, be renewed by the party issuing it for one year from the date of such renewal, and so on from time to time during, the continuance of the renewed writ, either by being marked with a seal of the court bearing the date of the day, month and year of such renewal, or by such party giving a written notice of re- newal to the sheriff, signed by the party or his solicitor, and bearing the like seal of the court ; and a writ of execution so renewed shall have effect, and be entitied to priority, according to the time of tne original delivery thereof. Ibid. _ 2006. The production of the writ, or oi the notice renewing it, duly sealed as renewed, is sufficient evidence ot its having been so renewed. Ibid. r. 1 1 No. 599. * (626) In actions in the Admiralty Divi- sion writs of attachment and fieri facias are issued from and filed in the Admiralty Eegis- try and not the Central Office. PRACTICE. Pt. II. In the High Court. Cap. 43. 1663 18. Notice to Sheriff to return* 2007. No order shall issue for the return of any writ, or to bring in the body of a person ordered to be attached or committed ; but a notice from the per- son issuing the writ or obtaining the order for attachment or committal (if not represented by a solicitor), or by his solicitor, calling upon the sheriff to re- turn _ such writ or to bring in the body within a given time, if not complied with, shall entitle such person to apply for an order for the committal of such sheriff. Ord. LII. r. 11, No. 706. 2008. "When any sheriff shall, before going out of office, arrest any defendant, and render return of cepi corpus, he may be called upon by a notice, as provided by the last preceding rule, to bring in the body within the time allowed by law, although he may be out of office before such notice is given. Ibid. r. 12, No. 707. 19. Discovery in Aid. 2009. For provisions that on a judg- ment or order for payment of money, the party entitled to enforce it may apply for an order that the debtor liable under it, or in the case of a corporation any officer thereof, may be examined, as to debts owing to him, and other property, and for the production of books or documents, see Ord. XLII. r. 32, No. 610. 2010. In case of any judgment or order other than for the recovery or payment of money, if any difficulty shall arise in or about the execution or enforcement there- of, any party interested may apply to the court or a judge, and the court or judge may make such order thereon for the at- tendance and examination of any party or otherwise as may be just. Ibid. r. 33, No. 611. 2010a. As to the costs of applications, see the above two rules, ibid. r. 34, No. 612. 20. Enforcing Obedience to Acts ordered to be done. 2011. For provisions that if a man- damus, mandatory order, injunction, or judgment for the specific performance of any contract be not complied with, the court or a judge, besides or instead of proceedings against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the court or judge, at the cost of the disobedient party, and for execution for the expenses so incurred and costs. Ibid. r. 30, No. 608. 21. In Actions of Possession. 2012. For form of writ of possession in an Admiralty action, see E. 8. C. 1883, App. H. No. 9. 22. On finding of Issues. See c. 38, p. 1639. 23. Fieri Facias. (a) Generally.^ 2013. Writs of fieri facias and of elegit shall have the same force and effect as the like writs have heretofore had, and shall be executed in the same manner in which the like writs have heretofore been executed. Ord. XLIII. r. 1, No. 613. 2014. Writs of venditioni exponas, dis- tringas nuper vice comitem, and all other writs in aid of a writ of fieri facias or of elegit, may be issued and executed in the same cases and in the same manner as heretofore. Ibid. r. 5, No. 617. See further as to writs of venditioni exponas, Ibid. r. 2, No. 614. 2015. For forms of writ of fieri facias, see E. S. C. 1883, App. H. Nos. 1 and 2. 2016. A defendant in an execution, be- ing a registered proprietor of shares in a ship, afi.fa. was delivered to the sheriff; and the solicitor for the creditor, by the direction of the sheriff, procured the cer- tificate of registry from the ship, and delivered it to the sheriff, who retained it. The sheriff was registered at the Custom House, under the M. S. Act, 1854 (c. 104), as the owner of the shares, which were afterwards sold by him and transferred to the purchaser by a bill * (627) As to sheriffs, under-sheriffs and their officers, see Archbold's Practice (14th ed. by Chitty), vol. 1, p. 31. t (628) As to writs of fieri facias in the Queen's Bench Division, Ibid. p. 836, and Chitty's Forms (12th ed.), p. 389. (629) Owing to the respectability of the bail generally taken in the Admiralty Divi- sion, no case of enforcing payment has as yet occurred there beyond in one or two cases the taking out of a writ of execution, which, however, has never been executed. In the late Oourt of Admiralty the process by attachment was found sufficient in the few cases in which it was necessary to enforce payment. See also note 635, infra. 1664 PRACTICE. Pt. II. In the High Court. Cap. 43. of sale, duly registered. Held, that the seizure was effectual, although the sheriff did not go on board the ship, and that the property in the shares was duly trans- ferred. Harleyv. Harley, 11 Chan. Eep. 451. [Irish.] 24. Attachment. (a) Generally.* 2017. A writ of " attachment shall have the same effect as a writ of attachment issued out of the Chancery Division has heretofore had. Ord. XLIV. r. 1, No. 620. 2018. For form of writ- of attachment, see E. S. C. 1883, App. H. No. 12. 2019. . If any party fails to comply with any order to answer interrogatories, or for discovery or ' inspection of docu- ments, he shall be liable to attachment. Ord. XXXI, r. 21, No. 363. 2020. A judge in chambers has juris- diction to issue a writ of attachment. Salm Kyrburg v. Posnanski, 13 Q. B. D. 218. 2021. A solicitor not entering an ap- pearance, or putting in bail, or paying money into court in lieu of bail, in an Admiralty action in rem, in pursuance of his written undertaking so to do, or neg- lecting to give his client notice of order served for interrogatories, discovery, or inspection, is liable to an attachment. See Ord. XII. r. 18, No. 88 ; and Ord. XXXI. r. 23, No. 365. 202 lo. As to attachments for the rescue or attempt at rescue of property ar- rested, see c. 11, s. 11, p. 1521. As to notice to sheriff to return writ, see Nos. 2007, 2008, supra. (b) Application for — .\ 2022. No writ of attachment shall be issued without the leave of the court or a judge, to be applied for on notice to the party against whom the attachment is to be issued. Ord. XLIV. r. 2, No. 621. As to the notice and affidavit to lead same, see Ord. LII. r. 4, No. 699. (c) Forms. 2023. For form of writ of attachment, see E. S. 0. 1883, App. H. No. 12. (d) In the Court of Admiralty. (aa) Generally.^ 2024. As to the powers of the Court of Admiralty in reference to attachment, see 3 & 4 Vict. c. 65, s. 20 ; Skin. 93 ; Sti. 129 ; and for cases thereon, see Sparks v. Martin (20 Car. 2), 1 Vent. 1. The case of the Admiralty (7 Jac. 13), Eep. 53; 6 Viner's Abr. 522 ; Hook v. Shoreton, 1 Ld. Eaym. 397; S. P. 2 ibid. 632; Green- icay v. Barker, Godb. 261. See Motion on a Ship unknown, 1 C. Eob. 331 ; The Minerva, 3 ibid. 34 ; The John of London, 1 Hagg. 342 ; The San Juan Nepomuceno, 1 ibid. 268 ; The King v. Benson, 3 ibid. 97, n. ; The Petrel, 3 ibid. 304; The Athol, 1 W. Eob. 379 ; The Wilhelmine, 1 ibid. 340. See The Victor, 1 Lushing- ton, 72; 2 L. T. N.S. 331. 2025 • The court would issue an attach- ment against salvors seeking to retain possession of a vessel after the production to them of the release of arrest. Instan- taneous obedience must be paid to the release. The Towan, 8 Jur. 222; and see The Tritonia, 4 Notes of Cases, 112. 2026. Attachment decreed against the * (630) As to writs of attachment in the Chancery Division, see Daniell's Chancery Forms and Precedents (4th ed.), pp. 393 — 404. (631) And as to attachments in the Queen's Bench Division, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 927, and Chitty's Forms (12th ed.), p. 472. t (632) The solicitor who has obtained an order for an attachment should file in the registry a praecipe (for form see E. S. G. App. G. No. 10), and deposit the following fees in impressed stamps : — £ s. d. On the praecipe . . . 15 On the form of attachment .10 and a further fee of J61 for its execution by the marshal. Forms may be obtained at Room No. 420. The attachment is prepared in the registry, and may be obtained at a day's notice, or earlier if required. (633) The attachment, when obtained, must be filed at the marshal's office, with a praecipe for its service which bears no stamp. If t™ service is to be effected at a greater distance than five miles from the offices of the marshal or his substitute, he may charge for travelling, and other expenses incurred. X (634) When the infringement of w court's authority is by official persons, acting under some semblance of law, the court win make an order against them to show cause why an attachment should not issue, but when the infringement is of a more flagrant character an attachment will be directed » issue in the first instance. PRACTICE. Pt. II. In the High Court. Cap. 43. 1665 owner of a collier, who, having appealed from, a salvage award, which was affirmed with costs, had not obeyed an order against him for their payment. The John Dunn, 3 Hagg. 168. 2027. An attachment for contempt of court decreed against a brig of war's agent residing in the Island of Granada, for non-payment into the mixed Com- mission Court at Sierra Leone of the pro- ceeds of a slave capture, as directed by an order from the Court of Admiralty. The Florida, 2 W.. Eob. 97. 2027a. Attachment against agent de- creed, but ordered to be directed*to the judge of a Vice-Admiralty Court where the party resided, with special instructions to enforce the same at a given time, and under certain circumstances only. The Harregaard, 1 Hagg. 23, n. 2028. As to attachment against parties for the rescue or attempted rescue of arrested property, see c. 11, p. 1521. 2028a. As to attachment against com- missioners of appraisement and sale for delay in mating return to commission, see No. 2071, p. 1670. (bb) Against Bail* 2029. Quaere, how far is it necessary to prosecute the principal in the first in- stance before proceedings can be insti- tuted against the bail ? When, however, the principal is a bankrupt, no such question can arise. The Harriet, 1 W. Eob. 193. 2030. Attachment against bail directed not to issue for a month. The Vreede, 1 Dodson, 8. (cc) Discharge. 2031. The judge of the Court of Admi- ralty might order the discharge of any person in custody for contempt of court, for any cause other than for non-payment of money, on such conditions as to the judge should seem just : but the order for such discharge did not purge the ori- ginal contempt. See 3 & 4 Vict. c. 65, s. 21. 2032. Attachment under which a party had been confined five years, decreed to be superseded. The Harregaard, 1 Hagg. 23, n. 2033. Motion to supersede an attach- ment for informality in the endorsement on the writ, rejected. The Plym, 2 W. Eob. 345 ; 8 Jur. 990. 2034. An attachment for non-payment of money can only be superseded by reason of irregularity in its execution. A con- tempt of this nature is excepted from the operation of s. 21 of 3 & 4 Vict. c. 65. Ibid. 2035. A party had been taken in Scot- land upon a warrant of attachment from the Court of Admiralty, backed by the Lord Ordinary there, who afterwards re- voked his original concurrence, as having been granted per incuriam, and directed the immediate liberation of the party. The court directed the attachment to be superseded, nor would it enforce a fresh attachment against the party compul- sorily, and it might be illegally brought within the jurisdiction. The Mathesis, 2 W. Eob. 296; 3 Notes of Cases, 133; 8 Jur. 582. 2036. A vessel was arrested at suit of a part owner, to give bail for her safe return ; shortly after which, the master, with the assistance of the mate and six others, took forcible possession of the ship, and carried her to Jersey, where she was arrested for a debt due from the master, and sold to A. B. The court, on motion founded on affidavit, decreed an attachment against the master and mate. The mate, after two months' imprison- ment, petitioned the court to be released, on the ground that he acted in ignorance, under the master's orders, and had a sick wife and aged mother dependent on him, and acknowledging his misconduct. His petition was not opposed by the part owner, at whose prayer he was attached, and the court decreed his discharge. The Petrel, 3 Hagg. 299. 2037. On appeal from a decree of a Vice -Admiralty Court, condemning a vessel as engaged in the slave trade, the appeal was dismissed with costs, and an attachment for non-payment of costs pur- suant to monition was decreed, under which the appellant was arrested. The respondents in the appeal were the Crown and the captor, and it was subsequently directed that the costs of the Crown be paid out of the proceeds in the registry. * (635) Under the old practice an opinion obtained that the court would attach the defendant only in the first instance, and upon his failing to pay, and not before, would attach the bail, thus giving to the latter what is called in the civil law oeneftcium ordinie. Goote's Adm. Frac. 91. 1666 PRACTICE. Pt. II. In the High Court. Cap. 43. and a moiety of the nett proceeds to the captor. The Queen's proctor, on behalf of the Crown, afterwards consented to the attachment against the appellant being superseded. Motion accordingly on be- half of the appellant, though opposed by the captor as having a vested interest in the proceeds, granted, and the attachment directed to be superseded. The Augusta, 4 Moore, P. 0. 0. 369. 25. Attachment of Debts.* 2038. For proceedings to enforce or- ders against judgment debtors, for their examination and the production of their books and documents, for orders against their debtors, and for proceedings against such garnishees, attachment of such debts, and costs of such proceedings, see Ord. XLV. rr. 1—9, Nos. 622—630. 26. Orders of Commitment^ (a) Under Debtors Act, 1869. 2039. For provisions for the imprison- ment of judgment debtors having the means to pay but who refuse to do so, see the Debtors Act, 1869 (c. 62) ; the rules made in March, 1874, in pursuance of the powers conferred by the 10th section of that Act; Ord. XLII. r. 25, No. 603; Ord. LIY. r. 19, No. 752, and Ord. LXIX. rr. 1—7, Nos. 1030—1036. 2040. As to the powers of the Lord Chancellor to direct such proceedings to be assigned to the Bankruptcy Court and registrars, and for general rules to be made to carry the Act into effect, see the Bankruptcy Act, 1883 (c. 52), ss. 45, 46, 103. 27. Sequestration.^. 2041. Where any person is by any judgment or order directed to pay money into court or to do any other act in a limited time, and after due service thereof refuses or neglects to obey, the person prosecuting such judgment or order shall, at the expiration of the time limited, be entitled, without any order for that pur- pose, to issue a writ of sequestration against the estate and effects of such dis- obedient person. Such writ of sequestra- tion shall have the same effect as a writ of sequestration in Chancery had before the commencement of the principal Act, and the proceeds thereof may be dealt with in the same manner. See Ord. XLHI. r. 6, No. 618. 204 1 a. On disobedience of order for pay- ment of costs, sequestration granted under 7 & 8 Vict. c. 69, s. 12. The Australia, Swabey, 480. 2042. No sequestration to enforce pay- ment of costs shall be issued unless by leave of the court. Ord. XLIII. r. 7, No. 619 ; and Snoio v. Bolton, 17 Ch. D. 433. 2043. For form of writ of sequestra- tion, see E. S. C. 1883, App. H. No. 13. 28. Mandamus, Injunction, or Receiver. 2044. As to the provisions of the Su- preme Court of Judicature Act, 1873, in regard to mandamus, injunctions, and appointment of receivers', see that Act, s. 25, sub-s. 8 ; and Wilson's Jud. Acts and Eules, 4th ed. pp. 29—34. 2045. As to writs of mandamus and prerogative mandamus, and the enforce- ment of mandatory orders, see Ord. LIII. rr. 1—15, Nos. 720—733; Ord. XLII. r. 30, No. 608 ; Archbold's Practice (14th ed. by Chitty), vol. 1, p. 426 ; and Chitty's Forms, 12th ed. p. 246. 2046. As to judgment or order in lieu of writ of injunction, and as to receivers, see c. 39, p. 1646. 29. Delivery. 2047. As to writs of delivery for en- forcing judgments or orders for the recovery of property other than land or money, see Ord. XLVIII. rr. 1, 2, Nos. 647, 648. 2048. For forms of writs of delivery, see E. S. C. 1883, App. H. Nos. 10, 11. 30. Charging Orders, Distringas, and Stop Orders. 2049. As to orders charging stocksor shares and distringas, see Ord. XLvI. rr. 1—13, Nos. 631—643 ; Ibid. r. 14, of Julv, 1885; Wilson's Judicature Acts and Eules (4th ed.), pp. 412-417; Arch- bold's Practice (14th ed. by^hitty), vol. 2, . * (636) As to the attachment of debts, see Wilson's Jud. Acts and Eules (4th ed.), pp. 407 — 412, and in the Queen's Bench Division, see Archbold's Practice (14th ed. by Chitty), vol. 2, p. 927, and Chitty's Forms, 12th ed. p. 461. t (637) As to such orders of commitment, see Archbold, Ibid. X (638) As to writs of sequestration, see Darnell's Chancery Forms and PrecedenW (4th ed.), p. 404; Archbold's Practice JUtt ed. by Chitty), vol. 2, p. 907 ; Chitty'sForms (12th ed.), p. 448. PRACTICE. Pt. II. In the High Court. Cap. 44. 1667 p. 919; and Chitty's Forms (12th ed.), p. 478. 31. Interpleaders.* 2050. As to the law and practice in regard to interpleaders, see 1 & 2 Will. 4, c. 58, and 23 & 24 Yict. c. 126, ss. 12— 18 ; the Admiralty Court Act, 1861 (c. 10), s. 16 ; Ord. LYEI. rr. 1—15, Nos. 850— 864 ; Wilson's Judicature Acts and Eules (4th edA pp. 481—485; and in the Queen's Bench Division, Archbold's Prac- tice (14th ed. hy Chitty), vol. 2, p. 1354. 2051. Semble, -where rival claimants are proceeding against the ship for non- delivery of goods, a bill of interpleader in Chancery on behalf of the master will not lie, and the Court of Admiralty has jurisdiction over the whole matter. Sab- licich v. Russell, L.E. 2 Eq. 441. 2052. Semble, in proceedings in rem arising out of conflicting claims to goods under separate parts of a bill of lading, the Court of Admiralty has the power, if applied to, to relieve the vessel by inter- pleader from resisting at the same time the two conflicting demands. The Argen- tina, 2 Asp. 529. 44. Appraisement and Sale. 1 . Generally.] 2053. In all eases of bottomry, sal- vage, and wages, the Court of Admiralty possesses an undoubted power to decree a sale of the vessel proceeded against, un- less the demand of the successful suitor is satisfied. The jurisdiction of the court therein is confirmed by the municipal law of this country, and by the general prin- ciples of the maritime law ; and the title conferred by the court in the exercise of this authority is a valid title against the whole world, and is so recognized by the courts of this and of all other countries. The Tremont, 1 W. Eob. 164. 2054. In an action for master's wages and disbursements, the ship being subject to other claims, the court,, there beirjg no opposition, ordered an official appraise- ment and a sale by private contract for a sum not less than the appraised value on proof of mortgagee's assent and service of notice of motion on all claimants. The Planet, 49 L. T. 204 ; 5 Asp. 144. 2055. Order made by the Judicial Com- mittee on application of the respondents in a pending appeal, for unlivery of the cargo and sale of a mortgaged ship, the unlivery and sale of which had been de- creed by the Court of Admiralty. The Jeff Davis, 5 Moore, P. C. C. N.8. 25. 2056. If a party purchases a ship at a sale directed under a decree of the Court of Admiralty, he will not be held to his purchase if it appears that he was misled by the advertisements or conditions of sale to buy a vessel unsuited for his pur- poses ; but if on investigation of all the facts, the court should be satisfied that he had full information from another re- liable quarter prior to the confirmation of the sale, it will hold him bound to com- plete his purchase. The Luna, 8 Jur. N.S. 400. [Irish.] * (639) The general principles recognized in the application of interpleader are (1) that the person applying that others may be re- quired to interplead be already defendant in an action at the suit of one of them ; (2) that the claims of both claimants be in respect of the very same matter (see Slaney v. Sidney, 14 M. & W. 800) ; (3) that the party applying claim no interest in the subject-matter (see Braddick v. Smith, 9 Bing. 84) ; (4) that the applicant be not colluding with either party (see Belcher v. Smith, Ibid. 82) ; (o) that the applicant be in possession of the matter in dispute, and thus able to obey such order as may be made in regard to it (see Ireland v. Bushell, 5 Dowl. 147) ; and (6) that the same question be raisable upon the interpleader issue as was in dispute between the original parties (see Bakery. The Bank of Australasia, 1 C. B. N.S. 515). See Charley's Practice and Pleading under the Judicature Acts (3rd ed.), p. 3oi. t (640) Ordinarily to proceedings in rem in Admiralty all the world are parties, and a sale of a vessel in such proceedings conveys a per- fect title to the purchaser. But if the owner fraudulently and collusively procure his ves- sel to be sold under the forms of law, and himself become the purchaser for the purpose of cutting off just claims against her, such sale is void as against creditors. Thompson v. Steamboat J. D. Morton, 8 Ohio, N.S. 222. [American.] (64 1J When the proceeds of sales are brought into court in a proceeding in rem they are not liable to make good a loss of the purchaser sustained by a defect found in the article sold, the sale by. the marshal carrying with it no warranty to that effect. The Monte Allegre, 9 Wheat. 648. [American.] (642) As to sale of property by the Ameri- can Admiralty Courts, see 2 Parsons' Mari- time Law, 643. [Amerjcan.] 1668 PRACTICE. Pt. II. In the High Court. Cap. 44, 2057. If application is made by the defendants for sale of the ship, proof that they are the owners must be given. The Friendship, May 3, 1860. 2058. As to the title conferred by a sale under an order or decree of the court, see tit. Owners, p. 1218. 2059. As to decrees of sale to be made by the court of a ship, or share in a ship, , when a non-qualified person becomes en- titled thereto, see tit. Owners, p. 1205. 2060. As to sale by court in disputes between part owners, Ibid. Pt. VIII. p. 1423. 2061. As to the allowance for amelio- ration, or repairs and improvements of the ship, see tit. Owners, Pt. I. p. 1226. 2062. As to sales by the court in the Chancery Division, see Ord. LI. rr. 1 — 7, Nos. 680—686, and Ibid. rr. la, 3a, and 6a, or 16, 17, and 18 of Dec. 1885. 2063. As to the priority of sale over other liens, see tit. Liens, pp. 827—829. 2. Commission of—. (a) Generally.* (b) Execution of — ,\ 2064. In Admiralty actions every com- mission for the appraisement or sale of * (643) A commission of appraisement usu- ally accompanies a commission of sale, in order to guard against the property being sold at an improper price. (643a) 'Where an order for. a commission of appraisement and sale has been made the solicitor who has obtained the order files in the registry a praecipe bearing a 1 os. impressed stamp. (For form of prsecipe, see E. /S. 0. 1883, App. G. No. 9.) He at the same time leaves a blank form of commission impressed with a £1 impressed stamp thereon, and another £1 impressed stamp for the mar- shal's fee for its execution. The forms can be obtained ready stamped at Boom No. 420. (644) In the commission of appraisement and sale is embodied, where required, a commission of unlivery or removal, or both. (645) The commission of appraisement and sale is prepared in the registry (for form, see App. H. No. 16), and may be obtained after about a day's notice, or earlier if required. The solicitor obtaining it must then lodge it at the marshal's office with a prseoipe for its service (which bears no stamp). The other fees and expenses are paid subsequently, and by the paymaster of the Supreme Court, on a judge's order obtained by the marshal. t (646) The marshal appoints the time and place of sale, and the broker who is to sell the property. (647) The marshal, by his broker, then causes to be prepared and inserted in the public newspapers the necessary advertise- ments of the property to be sold, and the time and place of sale. (648) The marshal, by his broker, also causes handbills or notices of sale to be printed and posted up, or otherwise circulated in such places as he may think advisable. (649) The marshal, by his broker, also causes to be prepared and printed and cir- culated the usual catalogues of sale, with conditions of sale annexed. (650) The following are the usual condi- tions of sale of a ship : — 1. The buyer is to take the said vessel, her tackle, apparel, and furniture, with all faults, in the condition they now he, without any allowance or abatement for weights, lengths, qualities, quantities, errors of description, or any defects or injuries whatsoever, and nei- ther the age, tonnage nor description of the vessel or stores, as expressed in the inven- tories,' are warranted. 2. The buyer is immediately to pay into the hands of E. G. M. Browne, Esquire, marshal of the said court, one-fourth part of the purchase-money (and two guineas to the auctioneer,, to bind the bargain), and the remainder thereof within fourteen days unto the said marshal, and upon payment thereof he will be put into possession of the said vessel, her tackle, apparel, and furniture, as aforementioned. But in case of non-pay- ment of the remainder of the purchase-money within such time before mentioned, the de- posit aforesaid of one-fourth part shall and is hereby declared to be forfeited, and the said vessel, her tackle, apparel and furniture may again be exposed to and sold at public or private sale, and the deficiency, if any, by such re-sale shall be made good by the de- faulter at this sale, together with the _ ex- penses attending such re-sale ; and neither the "right honourable the judge, nor the marshal, nor any other officer of the said court, nor the auctioneer, shall be sued, either at law or in equity, for the said money paid in part, and forfeited as aforesaid ; but the buyer so neglecting shall be liable for all loss, costs and damages which may arise thereby. 3. The buyer (if he requires it) may have the marshal's bill of sale for the said vessel. 4. The vessel will be at the risk of the buyer immediately after he receives an order for the delivery thereof. Lastly. The said marshal is to be the judge who is the lawful buyer of the said vessel. Not less than £5 is to be advanced at each bidding. > (650a) The following are the usual con- ditions of sale of cargo : — , The highest bidder (in due time) to De deemed the purohaser, and in case of any dispute the lot to be put up again. PRACTICE. Pt. II. In the High Court. Cap. 44. 1669 property under the order of the court shall, unless the court or a judge shall otherwise order, be executed by the marshal or his substitutes. Ord. XLI. r. 14, No. 693. 2065. It is the duty of the marshal to make the inventory in person and not by deputy. The Queen (No. 1), 3 Asp. 189. [Irish.] 2066. The marshal, or any other person The buyers to declare their names and resi- dences, and deposit ten per cent, on the computed value of each lot if required ; the remainder of or all the purchase- money, with Is. per lot for lot money, pay- able to the brokers at the time an order for delivery is given. The goods to be paid for to the brokers on or before the prompt of fourteen days, either in money, deducting six months' discount at the rate of five per cent, per annum (or the Bank of England rate on the day of sale if above five per cent, per annum), or by such acceptances as the sellers may ap- prove of, due at or within six months from the day of sale. The goods to be received as and where they lie, at the buyers' expense, with all faults and defects, and without any allowance for error in description ; the timber and logs according to the razed contents, and other goods as they may rise from the piles ; the dimensions when given being according to the dock returns, and the quality when given according to the shippers' assort- ment or designation, unless otherwise spe- cially described. Any rent incurred after four weeks to be paid by the buyers of the respective lots. When the sale shall extend over more than one day, the prompt will be reckoned, the bills drawn and the rent allowed from the second day, with the exception of mahogany and cabinet woods, for which the invoices and delivery orders will date from the day of sale. Fourteen days from the date of the issue of the delivery order will be allowed for rent and cash payment on any lot that may not be ready for delivery on or within the prompt. In default of compliance with the above con- ditions the deposit money, if any received, to be forfeited to the owners of the goods, and the purchasers liable to them for all loss and charges attendant upon a resale, either by private contract or public auc- tion. . All goods sold at this sale to be at the risk of the sellers in respect of fire, provided such goods have not been removed from the docks for thirty days from the date of the second day's sale. In the event of non- delivery by loss from fire, the contract for such portion to be void, and the deposit, if any paid, to be returned. (651) The sale generally takes place in London at Lloyd's Captains' Eooms, Eoyal Exchange. (652) The marshal attends the sale and re- ceives the deposit, and subsequently the balance of the purchase-money from the purchaser, and delivers the property over to him. (653) The marshal usually executes to the purchaser a formal bill of sale of the pro- perty. (654) The marshal also prepares, signs and annexes to the commission of sale a formal return of the proceedings taken under it. (655) For directions that in all motions for commissions and decrees of appraisement and sale the time shall be specified within which it is prayed that the commissions or decrees shall be made returnable ; that the commis- sioners and marshal shall make regular re- turns, stating the progress made in the exe- cution of the commissions or decrees, and bring in the proceeds collected and all vouchers with their returns, see Order of Court of 3rd July, 1799. (656) The following are the further fees of the marshal, appraisers and broker : — £ s. On attending, appointing and swearing appraisers 10 On delivery of the property to the pur- chaser 10 On attending the delivery of cargo, or sale, or removal of a ship or goods, per day 2 Poundage on the sale of any vessel or goods, for every £50 or fraction of £50 . " 10 See E. S. C. Oct. 1884, N03. 95—97, 101. (656a) For the appraiser, half per cent, and his travelling expenses when necessary. Ibid. (657) For the broker, one per cent, on the proceeds of sale, and 5s. for the bill of sale. Ibid. (657a) When a broker appraises a ship and subsequently sells her, he is not entitled to a per-centage fee on the appraisement, but to a commission of one per cent, on the pro- ceeds of the sale. The Black Eagle, April, 1859 ; The Falcon, May, 1859, E. & M. (658) In the case of appraisement of a sailing vessel one appraiser is usually em- ployed ; but in the case of a steamer two are employed, one for the ship, and the other for the engine department. (659) In the case of cargo, an appraiser experienced in the particular kind of cargo is employed. (660) The commission of sale, account sales, vouchers and return are filed "by the marshal in the registry, but no fees are payable • thereon. 1670 PRACTICE. Pt. II. In the High Court. Cap. 44. undertaking a commission, incurs all the responsibility belonging to a prudent and honest execution of that commission, but the responsibility is limited to the exercise of common prudence and common inte- grity, notwithstanding which, if a loss occur, the commissioner is not responsible, but only for dolus or negligentia dolo proximo,. The Rendsborg, 6 C. Eob. 155. 2067. The duties of commissioners of appraisement are, according to the terms of their appointment, to reduce into writing a full, true, and perfect inventory of the ship and cargo, and to appoint two good and lawful men, well experienced in such affairs, and swear them faithfully and justly to appraise the same according to their true values. The Princessa Zavala and La Reine Elizabeth, 2 C. Eob. 36. 2068. Commissioners of appraisement and sale are merely ministerial officers of the court, deriving all their authority therefrom, and from no other source. Ibid. 34. 2069. They are not the agents of the persons that recommend them. Ibid. 2070. Before the marshal became the sole person authorized -to execute such commission, though the court might, for its own convenience, accept the recommen- dation by the parties of commissioners, it was in no degree bound to do so. Ibid. 2071. It was at the option of the court whether it would grant any commission or not, and to whom it would grant it. Ibid . 2072. It might revoke commissioners, though approved by the party, or continue a commissioner in office, though against the approbation of the party. Ibid. 2073. They were to account to the court, and not to the persons who recommended them. Ibid. 2074. If difficulties arose in the execu- tion of their office, they ought to resort to the court, and in due time, not waiting until the business was concluded. Ibid. 2075. If the interests of the Crown wore affected, they should apply to the Crown officers of the court, and act under their directions with respect to the Crown's property. Ibid. 37. 2076. In a case of re-capture, the com mission for the appraisement and sale not having been returned for two years, attachment decreed against the commissioners, and at their expense. The Fortuna, 4 C. Eob. 78. 3. When Biddings beloio Appraised Value.* 2077. When property is ordered to be sold in proceedings which are not by de- fault, and it has been found impracticable to sell the property at the appraised value, the court, on proof thereof and on the con- sent of both parties, will direct it to be sold by private contract. The Linda Flor, 1 Sept. 1857, cited in Coote's Adm. Prao. 94. 2078. Where the bidding is much under the appraised value, the court will not always order the property to be sold at what it will fetch, but will sometimes fix upon a specific sum, and direct that the property shall not be sold for less than that amount. The Ceres, June 26, 1857. 4. Leave to bid. 2079. Application of the mortgagee of a vessel, to be. allowed to bid as a pur- chaser on the sale of the vessel and part of the cargo under the decree of the court, granted. The Wilsons, 1 W. Eob. 173. 5. Payment of Proceeds into Court. 2080. The marshal shall pay into court the gross proceeds of sale of any property sold by him. Ord. XLI. r. 15, No. 694. 6. Account Sales. (a) Generally. 2081. The marshal shall at the same time that he pays into court the gross proceeds of sale of 'any property sold by him, bring into the registry the account of sale, with vouchers in support thereof, for taxation by the Admiralty registrar. Ibid. (b) Taxation.^ 2082. Any person interested in the pro- ceeds may be heard before the Admiralty * (661) The property cannot, except by direction of the court, be sold at a less amount than the appraised value when it has been appraised. (662) If the biddings do not reaoh that value the sale must be postponed, and a motion made to the court, supported by affi- davits, for permission to sell the property at whatever amount it will fetch ; and on suffi- cient cause being shown, the court will gene- rally make the order or name a sum as the minimum amount at which the property may be sold. , ,, t (663) One pound per cent, held to be tne PRACTICE. Pt. II. In the High Court. Cap. 44. 1671 registrar on the taxation of the marshal's account of expenses, and an objection to the taxation shall be heard in the same manner as an objection to the taxation of a solicitor's bill of costs. Ibid. r. 16, No. 695. 2083. Where the marshal went bond fide to attend a sale, but arrived there after it was over, his travelling and hotel expenses were allowed. The Queen (No. 1 ), 3 Asp. 189. [Irish.] 7. Appraisement. (a) Generally.* 2084. The ordinary modes by which the value of a ship may be ascertained are twofold. The first is by appraise- ment, in which case the return of the commission, being a proceeding by the court, the appraised value, unless ob- jected to, binds both parties. A second mode is by agreement (semble, to be filed in the registry), in which case both par- ties are bound by their own act and con- sent. The Mellona, 3 W. Eob. 23 ; 6 Notes of Cases, 69. 2085. "When there is any dispute as to the value of the property itself, the proper course is to take out a commission of appraisement, but when there is no dispute as to the value, but whether cer- tain deductions may be made according to law, a commission of appraisement is unnecessary. The Charlotte, 5 Notes of Cases, 6. usual rate of brokerage on the sale of prize goods generally. The Harregaard, 1 llagg. 22. (664) Marshal's charge of half per cent, on the value of cargo for superintending the unloading and ordering appraisement thereof, disallowed by tho court, and three guineas a day allowed in lieu thereof. The Bendsborg, 6 0. Eob. 169. (664a) Accounts of charges attending the execution of a commission of unlivery and appraisement referred to the registrar and merchants to report on. L 'Espcrance, 1 Dod- son, 50. * (665) Appraisement is usually resorted to in proceedings by default and in salvage causes. (665a) In proceedings by default, the court requires for the protection of the absent owners an appraisement of the property pro- ceeded against before its sale, and will not permit, except in special cases, the property to be sold under its appraised value. The commission of appraisement is in these cases embodied in the commission of sale, together with a commission of unlivery in cases in which it is necessary to unliver the cargo for the purpose of the appraisement, as generally happens when cargo is to be appraised. (666) In salvage causes the value of the property salved being an ingredient in the consideration of the salvage to be awarded, the salvors are entitled, before the property arrested for salvage is released, to have its value correctly ascertained. This may be done by an agreement between the plaintiffs and defendants signed by the proctors and filed in the registry. (See as to such agree- ments, c. 24, p. 1572.) When the values can- not be so agreed, the defendants' solicitor files an affidavit of the values, and the plaintiffs' solicitor, if dissatisfied with that amount, takes out a commission of appraisement. (666a) The marshal selects a fit and proper person skilled in the valuation of vessels to make the required valuation, and administers to him an oath faithfully to make the appraise- ment. (667) The appraiser, after being so sworn, appraises the property, and draws up, signs, and delivers to the marshal an inventory, and appraisement thereof in writing. 667a. The marshal annexes this appraise- ment to the commission, and draws up, signs, and annexes also to the commission a return thereto, setting forth what he has done under its authority. 668. By the old practice in force until the 1st January, 1860, if the res were situate within the port of London, the commission of appraisement was directed to the marshal, but if situate at any outport it was directed to one or more special commissioners, selected by the practitioners on both sides, and latterly to commissioners to administer oaths in Ad- miralty, resident at or near the place where the res was situate. (669) "When in order to a proper appraise- ment a commission of unlivery is necessary, Buch a commission may be obtained in the same manner as a commission of appraise- ment, or it may be embodied in the commis- sion of appraisement, and this latter is, where practicable, the better course, as the registry and marshal's fees above mentioned are the same for a commission of appraisement as for a commission of unlivery and appraise- ment ; but when, a commission of unlivery is taken out separately the before-mentioned fees must be paid again thereon. (669a) On a commission of unlivery the marshal's further fees are £2 per diem during the unlivery, and the expenses of a broker should the marshal deem it necessary or ex- pedient to employ one. (670) Before the order for the execution of all commissions of unlivery, appraisement and sale by the marshal, the allowance to commissioners at the outports for an unlivery, for the purpose of appraisement, was one guinea a day for each commissioner. The Bendsborg, 6 0. Eob. 171. 1672 PRACTICE. Pt. II. In the High Court. Cap. 44. 2086. An appraisement made by order of the court is binding upon all parties. Motion by the owner to have the vessel sold, and the value determined by the sale, rejected. The R. M. Mills, 3 L. T. •N.S. 513; 1 Asp. 5. 2087. In a salvage action an appraise- ment made by the authority of the court ■will generally be conclusive as to the Value of the property salved. The Cargo ex Venus, L. E. 1 A. & E. 50 ; 12 Jur. N.S. 379; 14 W. E. 460. 2088. Semble, a valuation by the re- ceiver of wreck is superseded by a valu- ation under a commission of appraisement from the Court of Admiralty. The Minna, No. 2061, March 15th, 1864.. 2089. On appeal from an award of salvage by magistrates, an application on the part of the owners for an appraise- ment by the court, though the appraise- ment before the magistrates was not objected to at the time by them or their agents, granted, though opposed by the salvors, but without prejudice, and at the expense of the owners. The Oscar, 2 Hagg. 258. 2090. An appraisement made after a sale is a nullity. Ibid. 2091. In a cause of damage by colli- sion, held, that the value of the ship, when not agreed, or ascertained by appraise- ment, was a question for the registrar and merchants, and one which the court would not decide from evidence on the pleadings. The Speculator, 12 Jur. 546. 2092. A bottomry bond had been given upon the ship and cargo, and the value of the ship was very Bmall. The court, con- sidering there was reasonable suspicion that the cargo had been improperly hypothecated, directed a survey and ap- praisement of the vessel. The Bonaparte, 3 W. Eob. 305, 307 ; 13 Jur. 1059. 2093. A bottomry bond had been given upon the ship and cargo, and the value of the ship was small.. Held, that the original valuation of the ship when the bottomry bond was taken having been made by competent authority, the amount for which the ship was sold after she had been detained a long time, and had be- come thereby deteriorated, was no evi- dence to disprove the previous valuation. Ibid. 2094. When property, whether in the Prize or Instance Court, in a case of cap- ture or salvage is delivered on bail to the claimant, he is bound, on the one hand, by the appraised value, and cannot be called upon, on the other, hand, to bring in more than the appraised value. The Betsey, 5 C. Eob. 295 ; The Jonge Bastiaan, ibid 322. 2095. In a case of salvage on recapture, in which the ship and cargo had been re- stored to the proprietor on bail to answer salvage, but were destroyed by fire before the appraisement of the cargo had been completed, held, as to the ship, that the appraisement having been executed, pos- session was restored to the owner, and that salvage was due thereon, according to the appraised value; but as to the cargo, that the appraisement not having been completed, that was in the custody of the court, and that therefore the loss must fall on both parties, according to their several interests. The Three Friends, 4 C. Eob. 268. 2096. Valuations or appraisements in pursuance of orders of any Court of Ad- miralty, Vice-Admiralty, or of any court of appeal therefrom, are exempt from stamp duty. See 33 & 34 Viet. c. 97, Schedule. 2097. A vessel and cargo having been arrested in an action of salvage and bail given, the ship and cargo daily deterio- rating in value, an application was made by the owners to have the ship and cargo released, and by the salvors that a com- mission of appraisement should issue. Application of the owners- granted, there being an action for damage also pending at the suit of the owners, and the owners making statements of the value in acts of court, and undertaking to afford every facility to the salvors for another valua- tion should the value be further im- peached. The Glasgow Packet, 8 Jur. 67. 2098. Application for an order to stop salvors from unlading cargo at an out- port under a decree of appraisement after appearance and bail had been given, granted. The Sussex, 3 Hagg. 339. (b) By Receiver of Wreck. 2099. "Whenever any salvage question arises the receiver of wreck for the dis- trict may, upon application from either of the parties, appoint a valuer to value the property in respect of which the salvage claim is made, and shall, when the valua- tion has been returned to him, give a copy of the valuation to both parties ; and any copy of such valuation, purporting to be signed by the valuer, and to be attested by the receiver, shall be received in evi- dence in any subsequent proceeding; ana there shall be paid, in respect of such valuation, by the party applying for the PRACTICE. Pt. II. In the High Court. Cap. 44. 1673 same, such fee as the Board of Trade may direct. The M. 8. Act Amendment Act, 1862 (c. 63), s. 50. 2099a. A valuation by the receiver of wreck, under section 50 of the M. 8. Act Amendment Act, 1862, is not conclusive on the Court of Admiralty. The Minna, No. 2061, 15th March, 1864. (c) Commission of- — .* 2100. For form of commission of ap- praisement and sale, see E. 8. C. 1883, App. H. No. 16, in Wilson's Jud. Acts and Eules, 4th ed. p. 671. 2101. See Nos. 2054, 2064, supra. (d) Costs of such Commission in Salvage Actions. See tit. Costs, p. 411. 8. Sale. (a) Generally.^ 2102. A ship sold by the court is thence- forth free of all demands due anterior to her sale. The Clara, 2 Jur. N.8. 46. And see The Neptune, 3 Hagg. 132. 2102a. In an action of collision against the.G. and her freight, the G. was found solely to blame, and was ordered to be sold. On motion by the plaintiffs, the court directed the marshal to discharge the cargo and retain it as security for payment of charges and freight (if any) due from the consignees or owners, and in default of any application for delivery within fourteen days to sell sufficient cargo to pay those charges and the freight. The Gettysburg, 5 Asp. 347. &eafo>No.2053— 2078, pp.1667— 1671, and notes 640 — 657, and 660—663, Ibid. (b) Perishable Property. (aa) Generally. 2103. It shall be lawful for the court or a judge, on the application of any party, to make any order for the sale, by any person or persons named in such order, and in such manner, and on such terms as the court or judge may think desir- able, of any goods, wares, or merchandise which may be of a perishable nature or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once. Ord. L. r. 2, No. 658. 2104. In a cause of salvage the court directed that certain perishable cargo should be sold short of its destination, the proceeds to be brought into court and all questions of freight to be reserved. The Kathleen, L. E. 4 A. & E. 269 ; 43 L. J. Adm. 39; 31 L. T. N.S. 204. 2105. In a salvage action where there had been no appearance the court before decree ordered an appraisement and sale of the vessel and cargo salved, on an affi- davit that they were daily deteriorating and incurring expense. The Anna Helena, 5 Asp. 61. 2106. In an action for necessaries sup- plied to a foreign ship by D., on affi- davit of D. that the ship was rapidly de- teriorating, order made for her removal from a building yard in which she was lying and for appraisement and sale without prejudice to the lien of the owner of the yard for rent and other charges on the proceeds of sale. The Nordstjernen, Swabey, 260. 2107. On an application for the sale of perishable property, semble, the affidavits should state among other things who are the owners, and that notice of the appli- * (671) Where, as in, salvage actions, a commission of appraisement is desired to settle values, the solicitor desiring it must obtain an order for it on summons, and then proceed to obtain it in the same manner and paying the same fees on the instrument as in the case of a commission of appraisement and sale. For which, see notes 643 — 645 and 655—659, pp. 1668, 1669. (671a) The commission of appraisement is adapted in the registry from form of Com- mission of Appraisement and Sale in B. S. 0. 1883, App. H. No. 16. See as to powers to alter forms, Ord. LXI. r. 33, No. 926. (672) The stamps are impressed, and are on the praecipe 15s., on the commission £1, and a further fee of £1 for its execution by the marshal. (672a) As to commissions of unlivery and p. appraisement in prize causes, see Phillimore's Commentaries on International Law, p. 631. t (673) Sales under the authority of the court of property arrested take place in pro- ceedings by default, and sometimes in con- tested causes. (673a) As to the mode of obtaining a com- mission of sale and the fees payable thereon, and on the execution thereof, see notes 643 —657, and 660—663, pp. 1668—1670. (674) Where there are several actions against a ship ordered to be sold the plaintiff in the action entitled to precedence will generally, among rival claimants, be entitled to the conduct of the sale, unless he allows his rival to get in advance with his proceedings. (674a) And he will be allowed his costs of sale as a first charge on the proceeds. The Panthcea, 1 Asp. N.S. 133; 25 L. T. N.S. 389. 5 P 1674 PRACTICE. Pt. II. In the High Court. Caps. 45-51. cation has been given to them, or that efforts have heen made to discover the owners but without effect. The Bessy, 4 W. E. 92. 2107a. As to release of perishable pro- perty without sale, see The Glasgow Packet, No. 911, p. 1559. (bb) By Receiver of Wreck. 2108. In cases where any wreck in the custody of any receiver is under the value of £5, or is of so perishable a nature or so much damaged that it cannot, in his opinion, be advantageously kept, or if the value is not sufficient to defray the charge of warehousing, the receiver may sell the same before the expiration of the period therein mentioned, and hold the proceeds less the expenses for the same purposes and subject to the same claims as the property itself would have been liable to if unsold. M. S. Act, 1854 (c. 104), s. 453. (cc) Property of Small Value. See No. 2108, supra. (c) In Actions between Co-owners. 'See" tit. Owners, Pt. YHI.p. 1423. (d) Ships or Shares of Unqualified Owners. Ibid. p. 1204. (e) By Foreign Courts. Ibid. p. 1218. (f) By Receiver of Wreck for Salvage and Expenses. 2109. As to the powers of receivers of wreck to sell property salved in cases of non-payment of amount awarded for sal- vage, see the M. S. Act, 1854 (c. 104), s. 469, and tit. Salvage, c. 4. 2109a. As to his powers to sell claimed wreck, see tit. Wreck. (g) By Owners and their' Agents. See tit. Owners, Pt. I. p. 1214. (h) By Certificates of Sale. Ibid. p. 1202. (i) By Masters Abroad. Ibid. p. 1220. (j) Ameliorations. 2110. As to allowance by the court un- for ameliorations made in the property by reputed owners, see tit. Owners, Pt. I. p. 1226. 9. Commission of Unlivery: See notes 644, 669, pp. 1668, 1671. 10. Commission of Removal. 2110a. As to the removal of arrested property, and commissions for such re- moval, see c. 11, s. 10, p. 1520. See also note 644, p. 1668. 46. Laches. See tit. Laches, p. 800. 46. Priority of Liens. See tit. Liens, p. 807. 47. Costs and Damages. 2111. See tit. Costs, c. 20, p. 369, and ibid, in Addenda; and tit. Owners, Pt. III. p. 1265. 48. Security for Costs. See tit. Costs, c. 19, p. 363. 49. Taxation of Costs. 2112. As to taxation of costs, see tit. Costs, c. 27, p. 378 ; as to allowances^ on taxation, ibid, c 28, p. 384 ; as to review of taxation, ibid. c. 29, p. 390. 50. Costs. See tit. Costs, p. 343, and ibid, in Addenda. 61. On Appeal. 1. To the House of Lords. See tit. Appeals, pp. 18—24. 2. To the Privy Council. See tit. Appeals, pp. 24 — 51. 3. To Her Majesty's Court of Appeal. 1 See tit. Appeals, pp. 51 — 55. 4. To the Probate, Divorce and Admiralty Division. See tit. Shipping Casualties Investisa- tions. PRACTICE. Pt. III. In Particular Actions. 1675 5. To the Admiralty Branch of the Probate, Divorce and Admiralty Division. See tit. Appeals, pp. 56 — 59. 6. From British Consular Courts in Foreign Countries. See tit. Jurisdiction, pp. 773 — 776. 7. Appeal no stay. 2113. An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the court appealed from, or any judge thereof, or the Court of Appeal, may order; and no intermediate act or pro- ceeding shall he invalidated, except so far as the court appealed from may direct. Ord. Unil. r. 16, No. 880, and see tit. Appeals, p. 53. 8. Application for stay. 2114. In an Admiralty action applica- tion for stay of proceedings, pending an appeal to the House of Lords, must be made to the Court of Appeal and not to the Admiralty Division. The Khedive, 5 P. D. 1 ; 4 Asp. 182. 9. Costs. See tit. Costs, p. 390. Part III. — IN PARTICULAR ACTIONS, 1. Bottomry Actions. 1. Generally. 2115. A foreign agent specially au- thorized, collected the gross freight, and thereout remitted a sum larger man the amount of the net freight. Expenses in respect of the outward voyage, e.g. dis- charging expenses and compensation to consignees for short delivery of cargo, then became payable. The agent ad- vanced sums for these and other debts against the ship, and for repayment took a bottomry bond on ship and freight. Held, that the mortgagees, not in pos- session of the ship when the bond was given, had no right to object to the former items in the bond. The Edmond, 1 Lush. 63 ; 2 L. T. N.S. 192 ; 29 L. J. Adm. 76. 2116. As to bottomry generally, see tit. Bottomry, p. 100, and ibid, in Ad- denda, as to the jurisdiction of the Admi- ralty Division and Admiralty Court in reference thereto, ibid. pp. 104, 105. As to county courts having no jurisdiction in actions of bottomry, see tit. Jueisdiotion, p. 678. As to the law of the contract, the flag and the forum, as affecting bot- tomry, see tit. Bottomry, p. 106, and tit. Jurisdiction, pp. 652, 653. 2117. As to what are bottomry bonds, see tit. Bottomry, p. 106. As to such bonds being good in part and bad in part, ibid. p. 107. As to maritime risk being essential to such bonds, ibid. pp. 1 08 — 1 13. As to such bonds by owners, ibid. p. 114, and by masters, ibid. pp. 116 — 132. As to the necessity of notice before bottomry to owners, mortgagees or purchasers, ibid. pp. 129 — 132. As to such bonds on cargo, ibid. pp. 136 — 140, and on freight, ibid. p. 135. As to bills of exchange as colla- teral security, ibid. p. 140. As to pay- ment and priority of payment thereof, ibid. pp. 145 — 150. As to their transfer, ibid. p. 150. As to the lien for bottomry, ibid. pp. 143, 144. And as to the priority of bottomry over other liens, see tit. Liens, p. 816. 2. In rem. 2118. See c. 4, p. 1491. 3. Parties. 2119. The hypothecation of the ship by the master. does not render the owners fiersonally liable. Johnson v. Shippen 170), 1 Salk. 35; 14 Viner's Abr. 300. 2120. A bottomry bond is a negotiable instrument, which may be transferred and put in suit by the person so acquir- ing it. The Rebecca, 5 C. Eob. 102. But see Marshall v. Wilson, cited in Abb. Sh. (10th ed.), 115. 2121. The court -discountenances the sale of bottomry bonds. The Prince of Saxe Cobourg, 3 Hagg. 394. 2122. Asignees are in no better situa- tion in opposing a bottomry bond than owners where there is no bankruptcy. The St. Catherine, 3 Hagg. 253. 2123. Semble, a mortgagee whose in- terests are prejudiced by those of the bondholder, may oppose the validity of a bottomry bond. The Dunvegan Castle, 3 Hagg. 331. 2124. The title of mortgagees is in questions of bottomry and similar cases equivalent to that of the owners. The Mary Ann, 10 Jur. 255. 2125. A foreign agent especially au- thorized, collected the gross freight, and thereout remitted a sum larger than the 5 p 2 1676 PRACTICE. Ft. III. In Particular Actions. amount of the net freight. Expenses in respect of the outward voyage, e.g. dis- charging expenses and compensation to consignees for short delivery of cargo, then became payable. The agent. ad- vanced sums for these and other debts against the ship, and for repayment took a bottomry bond on ship and freight. Held, that the mortgagees, hot in posses- sion of the ship when the bond was given, •had no right to object to the former items in the bond. The Edmond, 1 Lushing- ton, 63; 2 L. T. N.S. 192; 29 L. J: Adm. 76. 2126. Semble, that the master, though the original hypothecator of the ship and a part owner, is not precluded by the practice of the Court of Admiralty from joining his co-owners in impugning the bond. Soars v. Rahn ( The Prince of Saxe Cobourg), 3 Moore, P. C. 0. 1. 2127. "When the bond is on ship, freight, and cargo, no appearance is given on behalf of the owners of the ship ; and it is uncertain whether the ship and freight will not be sufficient to satisfy the bond ; proceedings against the cargo should be suspended until the ship has been sold, and it has been ascer- tained that there is a deficiency rendering a resort to the cargo necessary. The Bonaparte, 3 W: Bob. 302. 2128. A bottomry bond was endorsed by the lender on bottomry as follows : "Pay to B. and G., or order of London, the within-named sum. Dated, Olbao, 7 July, 1845." Held, that it was im- material whether the endorsement was to be considered as a bond fide assignment of the bond to B. and G., or as a mere endorsement to them as agents of the bondholder, and that in either character they would stand in precisely the same position, be entitled to the same advan- tages, and subject to the same liabilities in law and equity, as the original bond- holder. The Catharine, 3 "W. Eob. 2. 2128a. As to parties to actions gene- rally, see Pt. II. c. 6, p. 1498. 4. Arrest. (a) Generally. 2129. A ship having been arrested in an action of wages, on motion on behalf of a bondholder for a warrant of arrest against the ship and freight, the bond in terms binding only the ship, the court directed the warrant to issue, though it would not, upon motion, determine whether the bond in such a case ex- tended to the freight. The Mary Ann, 9 Jur. 94. 2130. A warrant of arrest in a cause of bottomry having been executed on the ship and parties in possession of the freight, and no appearance having been given, the ship was sold under a decree of the court, after which an appearance was given for the owners. Motion, at the suit of a mortgagee of the ship, for an order against the parties in possession of the freight to bring in the same re- jected, the court intimating, however, that the bondholder might so apply. On application of the bondholder for pay- ment of the bond out of the proceeds of the ship sufficient for the purpose, further motion of mortgagee to suspend such decree until the freight should be brought into the registry in part dis- charge of the bond, rejected, the court holding that though the freight is part of the bondholder's security, he is not compellable to enforce it. The Percy, 3 Hagg. 402. 2131. Privileged goods not paying freight are, nevertheless, liable equally with the rest of the cargo to contribute to the payment of a bottomry bond on ship and cargo. The Gratitudine, 3 C. Eob. 278. 2132. As to 'the arrest of vessels generally, see Pt. II. c; 11, p. 1515. (b) Affidavit to lead — . SeePt. II. c. 11, p. 1517. • (c) Before Bond due, 2 1 33. The arrest of a ship by the holder of a bottomry bond before the bond was due, held to have been justifiable on the ground that the ship was going to leave the kingdom. Aliter, had there been an unfounded apprehension only thereof. The Jane, 1 Dodson, 461. 2134. The holder of a bottomry bond who arrested the vessel on her arrival before the bond was due and while the money was ready for payment, ordered to pay the costs of such arrest but not damages. The Eudora, 4 P. D. 208; 48 L. J. P. D. 32; 4 Asp. 78. 2135. Bottomry on ship, freight, and cargo. The property was arrested be- fore the bond was due, in order to secure cargo, an affidavit having been filed that there was reasonable ground for appre- hending the cargo would shortly be dis- charged. Proceedings by default directed to stand over, on the ground that, thougn PRACTICE. Ft. III. In Particular Actions. 1677 the property was arrested before bond due, no proceedings should have been taken until bond due, and therefore the time that would have elapsed under such circumstances must be allowed to elapse before such proceedings commenced. San Jose Primeiro (No. 22), 15th March, 1860. 2136. See also The Armadillo, tit. Costs, p. 399. 2137. As to when a bottomry bond becomes due, see tit. Bottomby, Pt. I. c. 6, pp. 111—113. 5. Consolidation. 2138. See Pt. II. c. 17, p. 1543. « 6. Bail. 2139. See Pt. II. c. 19, p. 1554. 7. Proceedings in rem by Default. 2140. See Pt. II. c. 22, p. 1566. 8. Abatement and Revival. 2140a. See Pt. II. c. 30, p. 1581. 9. Liens. (a) Payment of prior Claim under Order of Court. 2141. See tit. Liens, c. 2, p. 811. (b) Priority. 2142. As to priority of bottomry over other liens, Ibid. p. 816. 10. Prior petens. 2143. SeePt. II. c. 14, p. 1536. 11. Pleadings. 2144. See Pt. II. c. 34, p. 1605. 12. Evidence. 2145. See tit. Evidence, p. 443. 13. Hearing. (a) Right to begin. 2146. See Pt. II. c. 38, p. 1640. (b) Production of Original Bond. 2147. In all actions of bottomry the original bond must be produced at the hearing. The Rowena, 3 Asp. N.S. 506 ; 37 L. T. N.S. 366. 2148. In a cause of bottomry, the original bond was preserved in the re- gistry of the Court of Commerce at Malta, and a "legalized copy" entered in the minutes of the notary's acts there. An official or notarial copy was produced in court, but the court refused to make a decree without having a certificate and affidavit that no further copy has been or will be issued. The Jeune Nanette, 4 W. E. 92. 14. Judgment. 2149. A decree pronouncing for the validity of a bottomry bond is conclusive on the validity of the bond, and unless it be appealed from the bond must be con- sidered as valid. The decree determines nothing, however, with respect to the amount the bondholder is entitled to recover. That is to be ascertained by reference to the registrar and merchants. The Catherine, 3 W. Bob. 3. 2150. When the legal effect of a bot- tomry bond is intended to be questioned before the registrar and merchants, it is more convenient that the reference to them should be made under the directions of the court. The Cognac, 2 Hagg. 384. 2151. In a suit on a bottomry bond, the court, before deciding upon the va- lidity or invalidity of the bond, referred the case to the registrar and merchants, to report, on the whole accounts, whether any and what balance was due to the bondholder upon which a bottomry bond could be taken, and any other special matter which might occur to them. The Ocean, 10 Jur. 505; 4 Notes of Cases, 410 ; The Gauntlet, 13 Jur. 414. 2152. In proceedings by default in a cause of bottomry, the rate of interest being excessive, the court, ex mero motu, in making its decree, referred the matter to the registrar and merchants to report the proper rate of interest to be allowed. The Huntley, 1 Lushington, 24. 2153. On taking the ship's accounts in a cause of bottomry, it was ascertained that, save as to the agent's commission, no money was due as against the ship, and the registrar and merchants reported that the commission was so excessive, that on the balance of accounts, after re- ducing the commission to a proper amount, the owners of the ship were creditors and not debtors. Bond pronounced against, with costs. The Rhoderick Dhu, Swabey, 177 ; 5 W. E. 168 ; 28 L. T. 238. 2154. The court refused an application to rescind a decree pronouncing for the validity of a bottomry bond, founded upon an affidavit by the defendant's solicitor that there was a good defence on the merits, the decree having been pro- nounced with the consent of the de- fendants. The Glenbum, 11 W. E. 685. 1678 PRACTICE. Pt. III. In Particular Actions. 2155. As to decrees generally, see c. 33, p. 594. 2156. The court never pronounces against a bottomry "bond on account of the extent of the premium. La Ysabel, 1 Dodson, 277 ; The Alexander, ibid. 279; The Lord Cochrane, 8 Jur. 716; 3 Notes of Oases, 172. 2157. As to judgments and orders generally, see Pt. II. c. 39, p. 1642. 2158. As to allowance, and rate, of in- terest on bottomry bonds, see tit. Regis- trar and Merchants. 2159. As to prior petens, see Pt. II. c. 14, p. 1536. 15. References.* 2160. Where the validity of a bottomry bond is admitted, the registrar and mer- chants can still reduce the premium and commission if excessive. The Pontida, 9 P. D. 102 ; Ibid. C. A. 177 ; 53 L. J. P. D. 44 ; Ibid. 78 ; 5 Asp. 284, 330. 21 60s. As to references generally, see c. 40, pp. 1460 and 1652. 2161. As to costs of such references, see tit. Costs, c. 17, p. 358. 16. Payment. 2162. As to payment generally, see tit. Bottomry, Pt. I. c 18, p. 145, and No. 365, p. 146. 2162a. As to priority of payment in re- gard to ship, freight and cargo, Ibid. s. 6, p. 148. 2163. As to payment into court, see Pt. II. No. 182, p. 1482. 2163a. As to payment out of court, Ibid. p. 1486. 2164. As to priority of payment in re- gard to other claims, see tit. Liens, c. 3, p. 816. 17. Laches. See tit. Laches, p. 802. 18. Costs. See tit. Costs, p. 398. 2. Collision Actions. 1. Generally. 2165. As to collision of ships generally, see tit. Collision, p. 176. 2166. As to the jurisdiction of the Admiralty Division and the Admiralty Court thereon, Ibid. 2167. As to inevitable accident, Ibid. p. 200. 2168. As to the duties generally to avoid collision, Ibid. p. 207. 2169. As to lights, Ibid. p. 240; and in fog, mist, or snow, Ibid. p. 251. 2170. As to cases of both vessels to blame, Ibid. p. 204. 2171. As to the duty of vessels after collision to stay by and assist each other, Ibid. pp. 188, 189. 2172. If A. is solely to blame for a col- lision with B., ajid B. afterwards comes into collision with C, owing to the first collision, B. is not liable to C. The action ought to be brought against A., and it is not necessary to show that the vessel pro- ceeded against was in actual contact with the vessel proceeding. If there was joint blame for the first collision, and B. was driven in consequence against C, then B. would be responsible. The Venus, July 11, 1855. 2173. See also as to collision between three vessels, tit. Collision, p. 184. 2174. As to priority of liens for damage by collision over other liens, see tit. Liens, p. 821. 2. In personam. 2175. See Pt. II. c. 4, p. 1489. 3. In rem. (a) Generally. 2176. Ibid. p. 1491. (b) Ship, Freight, and Cargo. 2177. As to ship, see tit. Collision, p. 185. 2177a. As to freight, Ibid. p. 187, and Pt. II. Nos. 183, 187, p. 1482. 2178. As to cargo, Ibid. v. 11, p. 1519; see tit. Collision, p. 185 ; and Pt. I. No. 183, p. 1482 ; and Pt. II. p. 1519. (c) British and Foreign Government Vessels.^ See tit. Jurisdiction, Pt. I. p. 668, and Ibid, in Addenda. * (675) In actions of bottomry the proofs to be filed are, inter alia, the surveys and the accounts and vouchers for the several sums for payment of which the bond was given. t (675a) Where the colliding ship sought to be held to blame is a British Government ship, the proceedings are instituted against the commander or other officer in charge at the time of the accident, and the Lords of the Admiralty usually instruct the Treasury soli- citor to appear to the action. See notes 106, 107, p. 668, PRACTICE. Pt. HI. In Particular Actions. 1679 be recompensed to the extent of half the value of the damage done to his property. 4. Cross Actions and Counter-claims. See Pt. II. c. 4, pp. 1492—1494. 5. Amendment and Consolidation of Actions. See Pt. II. pp. 1494 and 1543. 6. Parties. (a) Generally.* 2179. Owners of vessels damaged have their choice of three modes of proceeding in the Court of Admiralty, viz. against the owners or masters personally, or against the ship itself. The Volant, 1 W. Eob. 387. 2 1 80. A cause of damage was instituted in the name of a party not the registered owner. Motion by the defendants to be dismissed, after damage pronounced for and the accounts referred, rejected, but the court stated that if after the amount of damage had been ascertained any doubt arose as to who was entitled to receive the money, it would direct the amount to be paid into the registry, and throw on the claimant the onus of establishing his ownership by competent proof. The Ilos, Swabey, 100. 2181. In the High Court of Admiralty the owners of the cargo have, equally with the damaged vessel, a distinct and separate remedy, either in rem or in personam, against the vessel doing the damage. The Milan, 1 Lushington, 388 ; 5 L. T. N.S. 590 ; 31 L. J. Adm. 105. 2182. Although a vessel has violated the provisions of the M. S. Act, 1854 (c. 104), as to the rule of port helm, and has there- by contributed to a collision, the owner of the cargo can, provided he is neither owner nor part owner of such ship, re- cover compensation from another vessel, which also contributed to the accident. But in such a case he is only entitled to Ibid. 2183. See also Pt. II. c. 6, p. 1506. 2184. See as to parties to suits gene- rally, Ibid. p. 1498 ; and as to third par- ties and proceedings by and against them, Ibid. c. 6, p. 1500, and c. 21, p. 1560. 7. Proceedings against Foreign Vessels under M. S. Act, 1854 (c. 104), *. 527.J SeePt. II. c. 11, p. 1523. 8. Against Master and Part Owner without Limit of Liability. 2185. To render a master, being also a part owner and guilty of neglect, respon- sible beyond the value of the ship and freight, he must be sued as master in the first instance. The proceeding must be by charging him with being the cause of the damage by his misconduct ; and that cannot be done, directly or indirectly, in another suit. In a cause of collision in which damage had been pro- nounced for, motion to condemn a part owner, who was on board and in com- mand of the damaging vessel at the time of the collision, in the excess of the damage beyond the proceeds of the ship, rejected. The Volant, 1 W. Eob. 385, 390; The Hope, ibid. 154; Wilson v. Dickson, 2 B. & A. 2 ; overruling The Triune, 3 Hagg. 115. 2186. See also tit. Ownees, pp. 1346, 1349. 9. Bail. See Pt. II. p. 1554. 10. Tender. Ibid. c. 32, p. 1587. * (676) Causes of damage by collision may be brought by the owners of the vessel lost or damaged, or by the owners of the cargo or part of the cargo lost or damaged, and in one cause or in separate causes. (677) These actions may subsequently be consolidated (as to the consolidation of ac- tions, see Pt. II. c. 17, p. 1543), or in each action after the first an agreement may be entered into by the solicitors on both sides that that action shall abide the result of the first action, or that the pleadings and proofs in the first action shall be considered as the pleadings and proofs in the subsequent action. See as to such agreements, Pt. II. c. 24, p. 1572. (678) The right of the Admiralty to proceed in rem is cumulative in many cases, and does not exclude the remedy in personam. A party, however, can have only one satisfaction. Brevoor v. The Fair American, 1 Pet. Adm. 87. [American.] t (679) The remedy under these sections is seldom resorted to in the Admiralty, that court having inherent jurisdiction, inde- pendently of the statute, over foreign vessels in cases of damage by collision. See tit. Collision, p. 193. It is, however, conve- nient so to apply to the Collector of Customs, in the case of a foreign ship, and where in- structions arrive too late to obtain a warrant on the same day. 1680 PRACTICE. Ft. III. In Particular Actions. 11." Preliminary Acts. See Pt. II. c. 33, p. 1589. 12. Pleadings. Ibid. c. 34, s. 23, p. 1606. 13. Evidence. See tit. Evidence, p. 447. 14. Trial. (a) Right to begin. See Pt. II. c. 38, p. 1640. 15. Judgments.* 16. References. See Pt. II. p. 1652. 2187. As to costs of references, see tit. Costs, p. 360. 17. Payment out of Court. See Pt. I. c. 10, p. 1486. 18. Payment from Funds in Court in another Action. See The Wild Ranger, p. 1479. 19. Measure of Damages, 2187a. See tit. Eegisteae and Mer- chants. 20. Subsequent Salvage Action. 2188. "Where a vessel had been found to blame in a cause of collision, her owners were allowed to intervene in a salvage suit instituted against the injured vessel, and the court gave them the conduct of the defence on their furnishing bail in lieu of that furnished by the vessel pro- ceeded against. The Diana, 2 Asp. N.S. 366. 21. Laches. See tit. Laches, p. 803. 22. Costs. See tit. Costs, p. 400. * ( 680) In causes of damage by collision in the Admiralty the amount of damages is not as at common law, investigated at the same time as the question of liability, but the latter is first disposed of, and when that has been done the question of damages is referred to the consideration of the registrar and mer- chants. As to the procedure before them see c. 40, p. 1648, 3. Damage to Cargo Actions. 1. Generally. 2189. As to the duties and responsi- bilities generally of owners and masters in reference to carriage of cargo, see tit. Goods, Carriage oe — , p. 467. 2190. Under charterparties, ibid. p. 465. Under bills of lading, ibid. p. 466. 2191. As to the jurisdiction of the Ad- miralty Division in regard to breaches of duty or contract as to cargo, ibid. p. 471. 2192. As to stoppage in transitu, ibid. p. 541. 2193. An indorsee of a bill of lading has a right to sue for damage to cargo arising from a breach of contract con- tained in the bill of lading under 18 & 19 Vict. c. Ill, and in the case of a foreign vessel to take proceedings in rem under the Admiralty Court Act, 1861 (c. 10), although at the time of the institu- tion of the action he has sold the cargo. The Marathon, 4 Asp. 75. 2193a. See also The Nepoter, p. 473, and The Felix and other cases, p. 517. 2194. Action by consignees of cargo damaged against the master, as repre- senting either the owner or charterer, held, rightly brought against the master. Denyssen v. Macfie, 3 L. T. N.S. 25. 2194a. In an action against a carrier for damage to goods, it is enough to prove the condition and value of the goods when delivered to the carrier and when received by the consignee, and if damaged in the hands of the carrier he is entitled to recover ; and the fact that the damage was partly caused by bad packing goes only to the amount of damage. Higgin- botham v. Great Northern Railway Com- pany, 2 F. & P. 796 ; 10 W. E. 358. 2195. In a cause of damage to cargo, held, that the omission by the master of certain particulars in his protest is not a breach of duty or contract on the part of the shipowner or his servants, so as to give the owner of the damaged goods a right of action, even if such omission had been made from improper motives. The Santa Anna, 32 L. J. Adm. N.S. 198. (680a) When it is not desired to dispute the liability for damages, but only the amount of damages, a decree as to the liability may be taken by consent, and the accounts referred to the registrar and merchants before whom the question of damages may be discussed. The consent should be by agreement between the solicitors on both sides. See as to such agreements, Pt. II. c. 24, s. 7, p. 1572. PRACTICE. Pt. III. In Particular Actions. 1681 2. In personam.* See Pt. II. c. 4, p. 1490. 3. In rem. Ibid. p. 1491. 4. Particulars of Demand. Ibid. p. 1570. 5. Preliminary Acts. Ibid. No. 1192, p. 1589. 6. Pleadings. Ibid. p. 1612. 7. Proofs. 2196. As to proofs generally, see Pt. II. c. 35, p. 1458. 2197. As to evidence generally, see tit. Evidence, p. 418. 2198. As to evidence in damage to cargo actions, Ibid. p. 446. 8. References. See Pt. II. c. 40, p. 1652. 9. Measure of Damages. See tit. Eegistrae and Merchants. 10. Priority of Liens. 2199. As to priority of liens for damage to cargo over other liens, see tit. Liens, p. 822. 11. Costs. See tit. Costs, c. 32, p. 400. 4. Actions for Loss of Life or Personal Injury. 1. Generally. 2200. The Admiralty Division has no jurisdiction to entertain, in the first in- stance, an action in rem under Lord Camp- bell's Act for loss of lif e.t (Overruling The Franconia, 2 P. D. It53.) The Vera Cruz, 10 App. Cas. 59 ; 9 P. D. 96 ; 5 Asp. 270, 386. 2201. But it has jurisdiction to enter- tain such an action where an action for limitation of liability has been instituted in the court — per Brett, M. E. Ibid. See also tit. Collision, Pt. I. c. 7, and Pt. II. c. 1, pp. 190, 191 ; and Ibid, in Addenda. 2202. See also TheBowersfeld,'No. 346a, p. 1499. 2202a. As to the jurisdiction of the Court of Admiralty in actions in rem for personal injury from collision, see The Sylph, L. B. 2 A. & E. 24 ; and by passen- gers or members of crew against masters for personal injuries, see tit. Seamen. 2. In relation to Board of Trade Inquiries.\ 2203. Eor provisions as to procedure by the Board of Trade in cases of loss of life or personal injury, for summoning a jury to ascertain the names, numbers and descriptions of the sufferers, for the assess- ment of the damages at £30 in each case, and as a first charge on the owners' lia- bility, and as to the payment and distri- bution thereof, see M. S. Act, 1854 (c. 104), ss. 507—510, and tit. Owners, Pt. VI. p. 1339. 2204. Por provisions that after the completion or compromise of the inquiry by the Board of Trade, if any person injured, or the legal representative of any person killed, estimates the damages awarded or compromised at a greater sum, he may bring an action for damages ; but any damages so recoverable shall be pay- able only out of the residue (if any) of the aggregate amount for which the owner is liable, after deducting all sums so paid to her Majesty's Paymaster- General ; and if the damages recovered do not ex- ceed double the statutory amount, the plaintiff shall pay the defendant's costs as between solicitor and client, see M. S. Act, 1854 (c. 104), s. 511. 2205. In cases where such loss of life or personal injury has occurred, no per- son shall be entitled to bring any action in the United Kingdom until the com- pletion of the inquiry by the Board of Trade, or it has refused to institute the same ; and it shall be deemed to have so refused when notice has been served on it by any person of his desire to bring such action, and no inquiry is instituted by the board for one month afterwards. Ibid. s. 512. * (681) Actions for damage to cargo may be in personam or in rem. See The Pieve Superiore, L. E. 5 P. C. 482. But as the action cannot be brought if any owner of the ship is domiciled in England or Wales, it follows that they must generally be brought m rem. t.(682) Semble, it has, as a branch of the High Court, original jurisdiction in personam in such actions. See The Bernina, 2nd March, 1886. X (682a) The Board of Trade have not yet availed themselves of these provisions of the act to institute any such inquiry. 1682 PRACTICE. Pt. III. In Particular Actions. . 2206. Whenever the Board of Trade having so refused to institute any inquiry afterwards determines to institute it, the damages and costs (if any) recovered on such inquiry shall be payable rateably with and not in priority to the costs and damages recovered in any other action. See M. S. Act, 1854 (c. 104), s. 513. 3. Limitation of Liability. 2207. As to the limitation of the liabi- lity of owners of ships in respect of such damages for loss of life, personal injury, or damage to property, see tit. Owners, Pt. VI. p. 1336. As to the procedure to limit such liabilities, see c. 10, infra. 5. Actions of Marine Insurance. 2208. As to practice in actions of ma- rine insurance, see tit. Marine iNStm- ance, p. 1100 ; including parties, p. 1100; pleadings, p. 1102; consolidation of ac- tions, p. 1106 ; actions for return of pre- mium, p. 1107 ; set-off, p. 1107 ; evidence, pp. 1107 — 11 14;. and costs, p. 1114. 6. Actions of Removal of Master.* 2209. See tit. Masters, p. 1118. 7. Actions of Master's Accounts. 2210. As to master's accounts gene- rally, see tit. Masters, p. 1123. 2211. As to references in such actions, see Pt. II. c. 40, p. 1652. 2212. As to costs in master's actions for wages and disbursements, see tit. Costs, p. 414. And as to their priority over other liens, see tit. Liens, p. 831. 2213. As to the importance of present- ing accounts before bringing action, Ibid. 8. Actions of Mortgage.! 2214. As to mortgage of ship gene- rally, see tit. Mortgage, p. 1129; and as to the priority of mortgages over other liens, see tit. Liens, p. 822. 2214a. As to mortgagees as parties to actions, see Pt. II. p. 1503. 2215. As to mortgagee's right to release of ship, Ibid. p. 1559. 2215a. As to his not being required to bring freight into court like an ordinary holder of freight, see The Ringdove, Swa- bey, 212. 2216. As to proceedings by default in mortgage actions, Ibid. p. 1566. 2216a. As to costs in ditto, see tit. Costs, p. 405. 9. Actions for Necessaries, Repairs, and Supplies. 1 . Generally. 2217. Those are commonly called mate- rial men whose trade it is to build, repair, or equip ships, or to furnish them with tackle and provision necessary in any kind. The Neptune,. 3 Hagg. 142. 2218. As to such actions generally, see tit. Necessaries, Eepairs, and Sup- plies, p. 1148. 2219. As to the limits of the juris- diction of the Admiralty Division in actions for necessaries, Ibid. pp. 1154 — 11564 * (683) When the master is also part owner, the proceedings should he in rem, and should be instituted as a cause of possession, and besides possession of the vessel, further relief by removal of the master may be asked for in the plaintiff's petition, or the majority of owners, on obtaining possession, may remove the master by their own authority. When the master is not a part owner, proceedings for his removal should be in personam against him. • f (684) For statutory forms of mortgage, of transfer thereof, of declarations and certificate of mortgage, and of revocation of certificate of mortgage, see M. S. Act, 1854 (c. 104), ss. 66, 73, 74, 79, 83 ; and for Board of Trade forms thereof, Pritchard's Adm. Digest, 2nd ed. App. pp. 168—179, 184 and 185. (685) When the appointment and conduct of -the master are matters of contention be- tween part owners, the proceedings should be instituted under the 8th section of the Admi- ralty Court Act, 1861 (c. 10). % (685a) It will be seen, on reference to the pages mentioned in the text, that the action for necessaries can only be brought in the Admiralty Division, under 3 & 4 Yict. c. 65, against foreign ships, and only for necessaries supplied on the high deas or in British ports; and under the Admiralty Court Act, 1861 (c. 10), against British or colonial ships when no part owner of them is domiciled in England or Wales. (686) And that the action for building, equipping or repairing vessels can only be brought in the Admiralty Division when the ship is under arrest of the court, or the pro- ceeds of sale of the ship are in the registry of the court. (686a) It is allowable and sometimes con- venient to institute the cause as a combined claim of necessaries and repairs or supplies, where the claim partakes of both characters. PRACTICE. Pt. III. In Particular Actions. 2220. As to what articles are and are not necessaries, Ibid. pp. 1156 — 1162. 2221. As to the limitation of the juris- diction of the Admiralty Division in actions for building, equipping, or re- pairing vessels, Ibid. pp. 1152 — 1154, and note 30 therein. 2222. As to the maritime lien in re- spect of the supply of necessaries, Ibid. p. 1166. 2223. As 'to the statutory lien in re- spect of building, equipping, and repair- ing, Ibid. 2224. As to the transfer and discharge of such liens, Ibid. pp. 1168, 1169, and tit. Liens, p. 811. 2225. As to the priority thereof, see tit. Liens, p. 825. 2226. As to the priority of the lien of a shipwright in possession over other liens, Ibid. p. 830. 2227. As to accounts in connexion with such claims, see tit. Begistbak and Merchants. 2228. As to laches in reference to the prosecution of such claims, see tit. Laches, p. 804. 2229. In law both the owner and the master may be responsible, not jointly, but separately, to the material man, who may bring his action against either of them. The Alexander, 1 W. Eob. 357. 2230. A partner may arrest the ship (the property of himself and co-partner) in a suit for necessaries. The West Friesland, Swabey, 495 ; 5 Jur. N.S. 658. 2231. The institution of an action as a cause of necessaries does not estop the 1683 plaintiff from afterwards pleading and proving that his claim is in respect of repairs, but the title of the cause must be amended. Leave to amend given. The Skipwith, 10 Jur. Adm. N.S. 445 ; 10 L. T. N.S. 43 ; 2 Asp. 20. 2. Transfer. 2232. A cause of necessaries was insti- tuted in a" county court, and subsequently referred to the High Court of Admiralty. The pleadings in the High Court of Admi- ralty alleged that a bottomry bond was given as security for the amount due for necessaries. Held, first, that the claim for necessaries merged in the bottomry ; secondly, that the suit having been trans- ferred as one for necessaries could not be retained as a cause of bottomry. The Elpis, L. E. 4 A. & E. 1 ; 42 L. J. Adm. 43. 3. Pleadings. See Pt. II. p. 1612. 4. Evidence. See tit. Evidence, p. 456. 5. Costs. See tit. Costs, p. 405. 10. Actions of Limitation of Liability of Owners. 1 . Generally.* 2233. As to the statutory limitation of liability of owners generally for damage * (687) The initiatory proceedings in the Admiralty Division in limitation actions are similar to those in other actions. As to the pleadings and judgment therein, and the references of the accounts to the registrar and merchants, and costs, see Pt. II. p. 1613. (688) The amount of the percentage on the registered tonnage of the vessel is paid in promptly after the judgment to stop interest, but the court will alfow bail to be given where denied. (688a) The advertisements referred to in the decree are usually inserted at intervals of not less than «, week, in the Times, the Shipping and Mercantile Gazette, and a iocal paper of good circulation. They are inserted by the plaintiff's solicitors. The form of ad- vertisement is settled by the registrar. (689) The advertisements, after reciting the institution of the action and the judg- ment thereon, proceed to give notice to all persons having any claim in respect of the loss or damage so caused to the vessel A., or to the goods, merchandize, or other thing, on board thereof, that if they do not come in and enter their claims in the said cause on or before a day therein named, they will be excluded from sharing in the sum paid into court. The advertisements are dated, and signed by the registrar. (689a) Claims should be filed (after enter- ing appearance) with the necessary proofs^ and they will be investigated by the regis- trar and merchants, as in ordinary refer- ences. The registrar's report will then be filed, and the court, on motion, will decree payment of the proper proportion of the fund due to each claimant with costs. (690) For form of decree in Chancery, on paying value of ship into court, for injunc- tion, account of claims and apportionment, see Seton on Decrees (3rd ed. by Harrison and Leach), p. 932. (690a) For the form of decree in Chancery limiting the shipowners' liability in a case of damage by collision, see The General Iron Screw Co. v. Schurmanns, 29 L. J. Ch. 883. (691) The averments in the petition, and 1684 PRACTICE. Pt. III. In Particular Actions. to goods, or loss of life, or personal in- jury, without their actual fault or privity, see tit. Owners, Pt. VI. p. 1336. 2234. As to the liability ultra of the master where part owner, and to blame for the collision, Ibid. pp. 1346, 1847, and 1349. 2235. As to the jurisdiction of the Court of Admiralty to entertain actions for limitation of liability, Ibid.* 2236. As to the calculation of the re- gistered tonnage of the vessel and the deductions therefrom for crew spaces, &c, Ibid. p. 1345, and Pt. I. pp. 1 188 and 1193. 2237. Though the damage may have been committed with the privity of one part owner, the other part owners not privy thereto may limit their liability. The Spirit of the Ocean, Br. & Lush. 336 ; 34 L. J. Adm. 74. 2237a. It is not necessary for the owner of a vessel arrested in a collision action to admit his vessel to have been to blame for the collision, in order to found an action for limitation of liability, and pro- tect him from a multiplicity of actions. (The ease in Chancery of Hill v. Andus, 1 Kay & John. 263, not followed.) The Amalia, 2 N. E. 462 ; 8 L. T. N.S. 806 ; 1 Lushington, 191 ; 32 L. J. Adm. N.8. 191 ; 9 Jur. N.S. 1111 ; 12 "W. E. 24. 2238. Held, that the owners could limit their liability under the statute in respect of damages by collision from a latent de- fect in the ship arising from negligence of a third party. The Warhworih, 9 P. D. 145 ; 5 Asp. 326. 2238a. Where the amount of a defen- dant's statutory liability has been paid into court in a collision action, with a sum to cover interest and costs, held, that it was not necessary for him to move the court to order that the sum paid in by him be transferred to the credit of the limitation action. The Sisters, 1 P. D. 281. 2239. And the court granted a decree of limitation of liability without ordering the transfer, the solicitors of the plain- tiffs in the limitation action undertaking that the costs of such action should be paid. Ibid. 2239a. Where it was proved that all claims in respect of loss of life had been settled, the court ordered that on pay- ment of £8 per ton, all claimants in ro- spect of loss of life, personal injury, or property, not appearing as directed by the decree, should be restrained from bringing any action. The Foscolino, 5 Asp. 420. 2240. E. S. C. No. 550, that in cases of trial by affidavit the evidence shall be printed, and notice of trial given, as therein mentioned, does not apply to Ad- miralty actions for limitation of liability. Ord. XXXVHI. r. 30j No. 550. 2240a. As to a counter-claim in an action for limitation of liability, see The Clutha, 35 L. T. N.S. 36. 2. Stay of other Actions. See tit. Owners, Pt. VI. pp. 1342, 1343. 3. Bail. 2241. In an action of limitation of lia- bility, a release of the ship in other actions pending decreed on bail being given in this action in a sum equivalent to £8 per ton (there having been no loss of life or personal injury), on the registered ton- nage of the vessel, and in a sum to be settled by the registrar for interest and costs. The John, No. 2213, 10th May, 1864. 2242. In a limitation action the plain- tiffs were ready to pay into court £8 per ton, but asked that in respect of loss of life and personal injury they might pay, into court or give bail for, less man the statutory amount. The court directed that the plaintiffs should first state on affidavit the names of the persons killed and injured, their condition in life, the number of those legally entitled to claim, the number of claims which had been settled, and the amounts paid in settle- ment. The Dione, 5 Asp. 347. 4. Security for Costs. See tit. Costs, p. 365. 5. Pleadings. See Pt. II. p. 1613. in particular the amount of the gross regis- tered tonnage of the vessel which did the damage, and the names and addresses of her owners, should be verified by affidavit, to be filed by the plaintiffs, notwithstanding those averments may be admitted in the answer. * (691a) Any doubt as to the jurisdiction of the Admiralty Division to entertain such actions when the ship or the prooeeds thereof are not under arrest of the court is now set at rest by that oourt having beoome a brand of the High Court, and therefore a superior court. See the Common Law Procedure Aot, 1860 (o. 126), s. 35. PRACTICE. Pt. III. In Particular Actions. 1685 6. Evidence. 2243. In any proceeding for limitation of liability under the M. 8. Acts in respect of loss of life, the master's list, or the du- plicate list of passengers delivered to the proper officer of customs under the 16th section of "The Passengers Act, 1855," in the absence of proof to the contrary, is sufficient proof that the persons in respect of whose death any such proceedings are instituted were passengers on hoard at the time of their deaths. See M. 8. Act Amendment Act, 1862 (c. 63), s. 56. 7. Interest. See tit. Costs, p. 403. 8. Costs. Ibid. p. 403. 11. Actions of Possession. 1. Generally.* 2244. As to actions of possession gene- rally, see tit. Owners, Pt. I. pp. 1180, 1181, and Pt. VIII. p. 1415. 2244a. As to the jurisdiction of the Admiralty Division and Admiralty Court in such actions, Ibid. pp. 1181, 1417. 2245. As to the ship's certificate of registry and the right to the possession thereof, see tit. Ownees, Pk I. pp. 1210 — 1214.+ 2245a. As to the sale of ship generally, see tit. Owners, p. 1214; from builder, ibid. p. 1215 ; by decree of the Admiralty Division, ibid. p. 1218; by decree of foreign court, ibid.; under power of at- torney, ibid. p. 1219; by fraud, ibid. p. 1220; by master, ibid. p. 1221 ; what property passes, ibid. p. 1217; and as to ameliorations or improvements by the purchaser whose title is defective, ibid. p. 1226. 2246. In a cause of possession, brought by the owner of the greater number of shares of a vessel, the master, owning the remaining shares, is not entitled to retain possession of the vessel upon an offer of security to the amount of his co- owner's interest. The Kent, 1 Lushington, 495. 2246a. As to proceedings to displace master when he is, and is not, part owner, see tit. Master, p. 1118. 2247. In a cause of possession, where an account was also claimed against the managing owner who failed to appear, the court directed that he should, be joined as a defendant under Ord. XVI. r. 3 (now r. 4), No. 126, so that his accounts might be inquired into. The Native Pearl, 3 Asp. N.8. 514 ; 32 L. T. N.8. 542; and see The Annandale, 2 P. D. 179, n.; 37L.T. N.8. 364. 2247a. As to proceedings by default in such actions, see Pt. II. c. 22, p. 1566. 2248. Application to change the pos- session at the petition of a moiety of the interest rejected. The Elizabeth and Jane, 1 W. Bob. 278; The Egyptienne, 1 Hagg. 346. 2248a. But where the proceedings were by default, order made against the other parties to appear and show cause against dispossession. Ibid. 2249. Possession of a ship, time having been allowed for an appearance by the purchaser, decreed in proceedings by de- fault to the plaintiffs, the former owners, on affidavits that the ship, having been abandoned by the master, was sold with- out their consent. The Lagan, otherwise The Mimax, 3 Hagg. 418. 2249a. For form of writ of possession in an Admiralty action, seeE. S. C. 1883, App. H. No. 9. 2250. Action for possession of masts and rigging brought by the owner against a person in possession of them, order made for the property being restored to the owner. Fowler v. Living, anno 1714 ; Marsden, p. 302. 2. By Foreigners. (a) Generally. See tit. Ownees, Pt. VIII. p. 1182. (b) Notice to Consul. Ibid. * (692) A part owner may sustain a peti- tory suit against a merely fraudulent pos- sessor, without joining the other part owners ; and if they do not appear or object, and the libellant establishes his title, the court will decree the possession to him. The Friendship, 2 Curtis, 0. 0. 426. [American.] (692a) A proprietary suit will be enter- tained in the case of a claim by British sub- jects, as the owners of a vessel found in England in the hands of foreigners. Dunlap's Adm. Prac. 47. [American.] t (693) In causes of possession it is usual to require in an early stage of the proceed- ings that the certificate of registry of the ship should be brought in. 1686 PRACTICE. Pt. III. In Particular Actions. 3. Arrest. (a) Generally. SeePt. II. c. 11, p. 1517. (b) Affidavit to lead Warrant. Ibid. 4. Bail. Ibid. c. 19, p. 1554. 5. Release. Ibid. c. 20, p. 1559. 6. Security for Costs. See tit. Costs, p. 365. 7. Proceedings by Default. See Pt. II. c. 22, p. 1566. 8. Pleadings. Ibid. e. 34, p. 1614. 9. Evic See tit. Evidence, p. 457. 10. Writs of Execution. See Pt. H. p. 1663. 11. Laches. See tit. Laches, p. 804. 12. Costs. See tit. Costs, p. 406. .' 12. Actions of Restraint. 1. Generally. 2251. As to actions by the minority owners against the majority to compel bail for safe return of the ship from a voyage of which the minority disapprove, see tit. Owners, Pt. VIII. p. 1418. 2251a. The Court of Admiralty is open all the year round to application by part owners to restrain the sailing of ships without their consent until security is given to the amount of their respective shares. Holy v. Goodson, 2 Mer. 77 ; 2 Dod. 420. 2252. When minority owners have in- stituted an action of restraint claiming security for the safe return of the ship to a named port within the jurisdiction, and a bond is given by the defendants for that purpose,, such bond remains in force until the ship returns to that port, and the. plaintiffs are not entitled to institute another action for further security upon the ship's return to another port within the jurisdiction ; and if such second ac- tion is instituted, it will be dismissed with costs. The Regalia, 51 L.T. 904; 5Asp.338. 2252a. Under the 70th section of the M. S. Act, 1 854 (c. 104), a mortgagee not in possession of the vessel cannot maintain an action of restraint. The Innisfallen, L. E. 1 A. & E. 72; 35 L. J. Adm. 110. 2253. In a cause of restraint, the charterer of the vessel, if he has a sub- stantial interest in the question before the court, is entitled to intervene in the action. Ibid. 2253a. Semble, when the actual loss cannot be directly proved, the Court of Admiralty will, on sufficient cause being shown,, declare the bond forfeited, and require the amount to be paid into court if the vessel does not return within a time, named in the decree. The Margaret, 2 Hagg. 279 ; and see The Anne and The Water Hen, therein cited. 2. Warrants of Arrest. (a) Affidavit to lead — . SeePt. II. c. 11, p. 1517. 3. Bail. Eor form of bond, see The Robert Dickinson, 10 P. D. 15; 5 Asp. 342; and see also Pt. II. c. 19, p. 1555. 13. Actions between Part Owners. 1. Generally.* 2254. As to actions in disputes between part owners and for accounts, see tit. Owners, Pt. VIII. p. 1420 ; and for the sale of the ship and the cases in which the court will, and will not, sell the ship, on application of part of the owners, Ibid. p. 1423 ; and as to the mode of proceeding* for sale, see Pt. II. c. 44, p. 16?3. 2254a. As to the rights, duties, and responsibilities of managing owners and ship's husbands, see tit. Owners, Pt- U- p. 1424. * (694) For forms of decree in Chancery for for sale, or of proceeds if sold, as between part account of shares in ships and earnings, and owners, see Seton on Decrees(4thed.),p•l' la, PRACTICE. Pt. III. In Particular Actions. 1687 2255. As to the taking of accounts between part owners, see tit. Registrar and Merchants. 2255a. As to evidence in such actions, see tit. Evidence, p. 457. 2256. As to proceedings by default in such actions, see Pt. II. c. 22, p. 1566. 2256a. All the part owners must be made parties to a bill filed for an account of the profits of the ship. Moffat v. Far- quharson, 2 Brown, C. C. 338 ; Collyer on Partnership, 683. 2257. Only such accounts can be in- vestigated and settled as are, or ought to have been, delivered before the issue of the writ. The Eider, 4 Asp. 104 ; 40 L. T. N.S. 463. 2257a. In an action by master and part owner for wages and accounts, the defen- dants were allowed to set up a counter- claim in respect of the co-ownership ac- counts. The City of Mobile, L. E. 4 A. & E. 191 ; 43 L. J. Adm. 41. 2258. A managing owner, who had not delivered accounts for nine years, brought an action against his co-owners for an account and payment of balance due. The registrar, in his report, having al- lowed the plaintiff certain items in re- spect of the ship, which he had not paid, and for which the defendants were being sued in the Queen's Bench Division, the court deoreed payment of the amount found due, but stayed execution until the defendants were secured against the claims in the Queen's Bench Division, . and refused to give the plaintiff the costs of the action, on the ground of the delay in delivering his accounts. The Charles Jackson, 5 Asp. 399. 14. Actions of Pilotage.* 2259. A pilot is a mariner, and as such may sue for his wages in the Court of Admiralty, unless the work is done within the body of a county. Ross v. Walker, 2 "Wils. 264. See also tit. Pilots, pp. 1430, 1431. 2259a. The act 3 Geo. 1, c. 13 (now re- pealed), fixing rates of pilotage, was limited to the particular society of pilots, viz., Trinity pilots, therein described, who had the benefit of a monopoly under the provisions of that act, and the restrictions thereof were held to be taken as corre- sponding with the privileges conferred. Other pilots, therefore, engaged in the same navigation only casually, when the privileged pilots were out of the way, held to be at liberty to make special agreements for higher compensation. Such an agreement pronounced for. The Nelson, 6 0. Eob. 227. 2260. In a cause of co-ownership, order made against a dock company to bring in freight detained by them under a stop order of the defendants. The Meggie, L. E. 1 A. & E. 77. 2260a. By the ancient maritime law, the Court of Admiralty has an equity to moderate or supersede extortionate con- tracts made under the pressure of neces- sity arising out of the situation of a ves- sel at sea. This jurisdiction might em- brace a case of extortionate contract for pilotage services. The Nelson, 6 C. Eob. 231. 2261. Themaster's agreement for pilot- age services, not affected by collusion or fraud, would be as binding on the owner as if made in his own person. Ibid. 227. 2261a. The report by the master of the ship to the owner that certain additional charges were due to the pilot (such charges not being allowable under the table of remuneration for pilot services annexed to the 6 Geo. 4, c. 125), held not to bar or conclude the owner from object- ing to such charges. The Adah, 2 Hagg. 332. 2262. The docking of a ship is to be considered as equivalent to bringing her to ordinary moorings. Ibid. 330. 2262a. As to pilotage authorities and pilots generally, see tit. Pilots, p. 1429. 2263. As to pilot ships and boats, qua- lified and unqualified pilots, and their remuneration and responsibilities, Ibid. * (695) Pilotage rates depend mainly upon Part 5 of the M. S. Act, 1854 (c. 104). Of that act, sects. 380 and 381 relate spe- cially to the rating power of the Trinity House, and these rates are embodied in the Order in Council of 1st Nov. 1862. The Trinity House outport district rates are framed by the Trinity House. See further, tit. Pilots, pp. 1438, 1439, 1441, 1448, 1449. (695a) Damage occasioned to a ship by the misconduct of a pilot in charge allowed to be set off against his claim for pilotage. The Sophia, Stuart's Vice- Adm. Eep. 96. [Lower Canada.] (696) To constitute pilotage a lien on the ship the contract must have been made by some person in the employment of the owner duly authorized to make the contract, such as the master or quasi master. But mere wrongdoers or mutineers have no authority to bind the ship. The Anne, 1 Mason, 508. [American.] 1688 PRACTICE. Pt. III. In Particular Actions, 2264. As to the priority of pilotage over other liens, see tit. Liens, p. 827. 15. In Salvage Actions. 1. Generally. 2265. As to salvage generally, see tit. Salvage, c. 1. 2266. As to the jurisdiction of the Ad- miralty Division and Admiralty Court in salvage actions generally, and where the amount in dispute is under £200, and where the value of the property salved is under £1,000, Ibid. c. 2. 2267. As to salvage of life and pay- ments thereon by Board of Trade, ibid. c. 7 ; as to salvage of wreck and payments by Board of Trade, ibid. c. 3 ; and as to the powers and duties, in connection with salvage, of the Board of Trade, ibid. c. 3 ; and of receiver of wreck, ibid. c. 4. 2268. As to salvage by officers and crews of H. M.'s ships, Ibid. c. 5. 2269. As to the consent of the Lords of the Admiralty to such parties taking proceedings being necessary before action can be brought by them, Ibid. 2270. As to salvage by officers and crews of H. M.'s ships out of the United Kingdom, the custody of the property, the statements on oath to the service to be interchanged, the bail to be given, the transmission of the documents, and the adjudication on the case, Ibid. 2271. As to the mode of proceeding in cases of salvage of British and foreign government ships, see tit. Jttrisdiction, pp. 668, 669. 2272. As to the different kinds of salvors, and first and second salvors, ibid. c. 5 ; the various kinds of salvage ser- vices, ibid. c. 6 ; the property saved, ibid. c. 8 ; the values and rate of contribution, ibid. ; the salvage of derelict property, ibid. c. 14 ; the losses and damages caused to the salvors in rendering their services, ibid. c. 6 ; and as to agreements for sal- vage, ibid. c. 10. 2272a. Owners setting up an agree- ment in bar of a salvage claim are bound to pay into court the amount stipulated for under the agreement. The Catherine, 6 Notes of Cases, Supp. 1. 2273. As to agreements to abandon lien for salvage, on the master of the ship salved agreeing to abide the deci- sion as to salvage of the Court of Admi- ralty or a Vice-Admiralty Court, and giving security to abide its decree, the statements therein, and the transmission thereof, Ibid. c. 5. 2274. As to the diminution or forfei- ture of salvage for neglect or misconduct, ibid. c. 9 ; as to salvage agreements, ibid. c. 10 ; and liens for salvage, ibid. c. 11. 2275. As to awards of salvage, ibid. c. 16 ; and tit. Salvage Awards. As to the apportionment thereof among owners, masters, and crews, see tit. Appoetion- ment of Salvage Awaeds. 2276. As to the priority of salvage and other liens, see tit. Liens, p. 830. 2277. And of towage and other hens, ibid. p. 831. 2278. As to laches in salvage actions, see tit. Laches, p. 805. 2279. As a matter of right, and espe- cially in cases of derelict, salvors are entitled to resort at once to the High Court of Admiralty to enforce their de- mands. The law entitles them to say, " We will have the judgment of the court as to the remuneration we ought to receive, and we will not negotiate." The Tritonia, 5 Notes of Cases, Supp. viii. 2280. The court is not limited to any particular demand of the salvors in a case of great merit. The Jonge Bastiaan, 5 C. Eob. 322. 2280a. An allotment of salvage having been awarded in proceedings by default, the ship salved was sold in that action under decree of- the court, but at an amount far exceeding the appraised value. Application for increase in the salvage award on that ground rejected. The • Emanuel, June, 1853. 2. By Officers and Crews of H. M.'s Ships Abroad. 2281. For provisions in cases of salvage by officers and crews of H. M.'s ships out of the United Kingdom and from seas adjoining, that the statements, bonds, and other documents required in such cases to be taken, be transmitted at the earliest opportunity by the consular officer or judge of a Vice-Admiralty Court acting in the case, with a notice of the sum he has fixed as bail to the Court of Admiralty of England, or if the salvor and the master or other person in charge agree that the bond shall be adjudicated upon by any Vice-Admiralty Court then to such court, see M. S. Act, 1854 (c. 104), s. 490. _ 2282. Such bonds when so transmitted to the High Court of Admiralty of Eng- land shall be adjudicated upon by that court. Ibid. s. 492. See also tit. Salvage, c. 5. PRACTICE. Pt. III. In Particular Actions. 1689 3. In personam.* 2283. Proceedings for salvage may be either in rem or in personam. The Hope, 3 C. Eob. 215, and notes ; The Meg Mer- rilies, 3 Hagg. 346 ; The Rapid, 3 Hagg. 419 ; and see Pt. II. c. 4, p. 1490. 2284. As to proceedings in personam against cargo, see The Peace, Nos. 2290 and 2302, infra. 2285. As to proceedings generally in personam, see Pt. II. c. 4, p. 1489. 4. In rem. (a) Generally. See Pt. II. c. 4, p. 1491. (b) Ship. 2286. 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 magistrates. The Pyrenie, 3 N. E. 250. 2287. If in a suit for salvage the ship alone has been proceeded against, the question would be what amount of salvage should be decreed with reference to the united value of the ship, freight and Cargo, and what proportion thereof the ship should defray. The Maria Jane, 14 Jur. 857. (c) Freight. 2288. Freight must have been paid or earned before salvors can require it to be brought into court, in order to salvage being awarded on it. The Aline, 1 W. Eob. 123. (d) Cargo. 2289. The real foundation of the juris- diction of the Court of Admiralty in sal- vage cases is by proceedings in rem, though there may be some .cases of special circumstances where salvors have been allowed to proceed in personam ; but generally the ship and freight are alone liable, and where they can be proceeded against the court is not disposed to re- gard salvors as having a right to follow cargo as prize goods may be followed, to abide the final adjudication. The Rapid, 3 Hagg. 422.+ 2290. A ship was arrested, after dis- charge of cargo, in a suit for salvage, and an appearance and bail were given for ship and freight. Motion on behalf of the salvors for an order against the owners of the vessel proceeded against to bring in an account of freight on oath, and to set forth when, and the names of the parties by whom, the freight had been paid, in order to the discovery of the owners of the cargo, granted. The Peace, Swabey, 85. 5. Initiation of Action. 2291. Every dispute with respect to salvage may be heard and adjudicated on the application of either the salvor or the owner of the property salved, or their respective agents. See M. S. Act, 1854 (c. 104), s. 460; and The Bessemer, 1884, B. No. 273.J 6. Amount of Action. 2292. Practitioners are not justified in entering actions and requiring bail to an amount quite disproportioned to the sal- vage service. The Earl Grey, 1 Spinks' Eccl. and Adm. Eep. 180. 2293. Por cases of condemnation of plaintiffs in costs of giving bail in such circumstances, see tit. Costs, p. 409. 2294. In an action of salvage Lord Stowell gave a larger sum than the amount in which the cause was insti- tuted, and directed a fresh action to be instituted. The Silver Bullion, 2 Spinks' Eccl. and Adm. Eep. 74. 7. Separate Actions.^ 2295. The court- is displeased when two actions are brought by two sets of salvors * (697) The rights acquired by the salvors are only in rem to be paid by the property. They have no claim in personam against the owners if they (the owners) choose to aban- don the goods. The Emblem, 'Daveis, 61. [American.] (698) But if the property is delivered by the salvors to the owners before a compensa- tion for saving it is made, the salvors may maintain a libel in personam for the salvage. Ibid. t (699) By the modern practice the court p. is less strict in allowing proceedings against owners of cargoes. See the subsequent cases in the text, Nos. 2290 and 2302. I (700) It is not unusual for owners of ves- sels salved to commence an action for the awarding of salvage, and where there are different claimants of salvage it is often more convenient to adopt such a course. § (701) Although there should be but one libel of co-salvors, if there are several sets of salvors, as the officers and crew of different vessels by whom distinct salvage services 5 Q 1690 PRACTICE. Ft. III. In Particular Actions. where it can be avoided, but there may be cases in which this course is justifiable, and this was one, the salvors having opposite interests ; the first set, smacks- men, being the first salvors, and the second, a steamer, claiming to have Tescued the vessel. The Charles Adolphe, Swabey, 156. 2296. Separate actions for salvage of life and property were entered and after- wards consolidated. The court approved of the course pursued. The Coromandel, Swabey, 208. 2297. Salvors who had saved life held to be justified in not consolidating with other salvors who had not saved life. The Morocco, 1 Asp. N.S. 46; 24 L. T. N.S. 598. 2298. Second salvors joined in an action with first salvors, which latter were held to have acted improperly, and the suit as to them was dismissed. The owners ob- jected to salvage being awarded to the second salvors, on the ground that they had embarked in a common action with the first salvors, and were concluded by the decree as against them. The court overruled the objections, and awarded salvage and costs to the second salvors. The Neptune, 1 W. Eob. 302. 2298a. A first set of salvors who, while in possession, were assisted in the service by a second set of salvors, held, neverthe- less, to have a primary interest, and therefore a right to choose their own jurisdiction (viz. whether to proceed for an award by magistrates or by a suit in the Court of Admiralty). They having elected to proceed before magistrates, the second salvors, who instituted proceedings in the Admiralty Court, held to have acted improperly in so doing, and in not inter- vening in the proceedings before the ma- gistrates as their 'proper course. Quare, if parties have equal rights, would a resort to the subordinate jurisdiction, when' ob- jected to, be proper? The Eugene, 3 Hagg. 159. 2299. Owners of a salving, vessel are entitled to receive the value of sails and stores supplied from the salving vessel, and also the amount of any other loss or expense which they may fairly have in- curred, but they are not justified in pre- ferring such a claim through a separate practitioner and counsel, and thereby putting the owners of the vessel salved to an additional and unnecessary expense. Costs allowed, but directed to be strictly taxed. The Baltimore, 2 Dodson, 138. 2300. As to consolidation of actions, see Pt. II. c. 17, p. 1544. 2300a. As to costs in connection with actions which ought to have been, and were not consolidated, see tit. Costs, pp. 349, 408. 8. Parties. (a) Generally.* 2301. 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. See the M. S. Act, 1854 (e. 104), s. 460. 2301a. Whenever any articles belonging to any foreign ship or cargo wrecked are found on or near the coasts, or are brought into any port, of the United Kingdom, the consul-general or any consular officer of the country to which the property be- longs, authorized by treaty or agreement with such country, shall, in the absence of the owner, master or other agent of the owner, be deemed agent of the owner as to the custody and disposal of such articles. See the M. S. Act Amendment Act, 1855 (c. 91), s. 19. See also Pt. II. c. 6, p. 1507. (b) Ship's Agents of Officers and Crews of her Majesty's Ships. See cap. 16, p. 1694. (c) Third Parties, See Pt. II. c. 4, p. 1507. have been rendered, it is proper that their respective claims to remuneration should be asserted in distinct suits. 1 Conkling's Adm. Prac. (2nded.) 369; The Boston and Cargo, 1 Sumner, 328; The Ship Henry Ewbank, Ibid. 400, 408. [American.] * (702) After sale of property libelled for salvage, a foreign oonsul has authority to petition the court to order the marshal to pay into its registry the proceeds in which a citi- zen or subject of his country is interested, such person being absent and having no legal representative in the United. States. Smp Adolph and Cargo, 1 Curtis, Ot. Ot. 87. [American.] . (703) Underwriters cannot claim for sal- vage property in the Admiralty unless tne property has been abandoned to them ana accepted by them. The Henry Swbanle, l Sumner, 400. [American.] . (704) See, also, as to underwriters as parties to suits generally* Pt. II. c. 6, p. 1504. PRACTICE. Pt. III. In Particular Actions. 1691 (d) Owners of Cargo subsequently pro- ceeded against. 2302. Salvage of £400 on ship, freight, and cargo, was decreed, in pursuance of an agreement made by the master. The values of ship and freight only were then known, but afterwards the owners of cargo were proceeded against and ap- peared, offering to pay their proportion of salvage. Held, that the cost of the salvage suit must be borne by the owners of ship and cargo rateably, though the latter were not before the court when the decree for salvage was made. The Peace, Swabey, 115. (e) After Collision Action. 2303. Where a vessel had been found to blame in a cause of collision, her owners were allowed to intervene in a salvage suit instituted against the injured vessel, and the court gave them the con- duct of the defence on their furnishing bail in lieu of that furnished by the ves- sel proceeded against. The Diana, 2 Asp. N.8. 366. 9. Claims by her Majesty's Ships, Officers and Crews. (a) No Claim for Loss or Damage. 2304. Where salvage services are ren- dered by any of her Majesty's ships, or by the commander or crew thereof, no claim shall be made or allowed for any loss, damage, or risk thereby caused to the ship, or to her stores, tackle, or furniture, or for the use of any of her Majesty's stores, or other articles, in effecting such services, or for any other expense or loss sustained by her Majesty by reason of such ser- vices. See M. S. Act, 1854 (c. 104), s. 484. (b) Consent of Lords of Admiralty to Proceedings. 2305. No claim on account of any sal- vage services rendered to any ship or cargo, or to the appurtenances "of any ship, by the commander or crew or part of the crew of any of her Majesty's ships, shall be finally adjudicated upon unless the consent of the Admiralty has first been obtained. Ibid. s. 485. 2305a. Such consent is to be signified by writing under the hand of the secre- tary to the Admiralty. Ibid. 2306. If any person who has origi- nated proceedings in respect of any such claim fails to prove such consent to the satisfaction of the court, his suit shall stand dismissed with costs. Ibid. 2306a. Any document purporting to give such consent, and to be signed by the secretary to the Admiralty, shall be primd facie evidence of 6uch consent having been given. Ibid. (c) Ship's Agents. 2307. For provisions authorizing the ship's agent appointed to any vessel be- longing to her Majesty to take proceed- ings on behalf of the officers and crew in causes of salvage, see the Naval Agency and Distribution Act, 1864 (c. 24), s. 12. 10. Agreement to abide Adjudication and pay Salvage. 2308. As to proceedings where other ships besides those of her Majesty are salvors, and, the salvors waiving their lien, the parties enter into a written agreement to abide the decision of the Court of Admiralty or Vice-Admiralty, and to give security to answer the sal- vage awarded ; as to the agreement bind- ing the parties and the property salved ; and as to the statements to be made on both sides, and the transmission of the agreement and documents to the court, see M. S. Act, 1854 (c. 104), s. 497, and tit. Salvage, c. 5. 11. Restrictions on Proceedings in Superior Court. See tit. Costs, pp. 352—354, andPt. II. c. 16, p. 1541, and No. 2238, p. 1694. 12. Leave to proceed in Superior Court. See Pt. II. p. 1541. 13. Detention before Warrant. (a) By Receiver of Wreck. 2309. For provisions in cases of sal- vage authorizing receivers of wreck to detain the property salved until payment is made, or process for its detention has been issued by some competent court, or security given to the receiver's satisfac- tion, Ibid. s. 468. 14. Bail. (a) Generally. 2310. See Pt. II. c. 19, p. 1555. 2310a. The Court of Admiralty has power to enforce any bond given in pursuance of this act in any Vice-Admi- ralty Court in any part of her Majesty's dominions; and all courts in Scotland, 5 q2 1692 PRACTICE. Pt. III. In Particular Actions. Ireland, and the islands of Jersey, Guern- sey, Alderney, Sark, and Man exercising Admiralty jurisdiction shall, upon appli- cation, aid and assist the Court of Admi- ralty in enforcing such bonds. See M. S. Act, 1854 (c. 104), s. 493. (b) Before Receiver of Wreck. 23 11.. A receiver of wreck, if (at any time previously to the issue of process from a competent court), security is given to his satisfaction for the amount of sal- ' vage due, may release from his custody any ship, cargo, wreck, or other property, detained by him ; and where the claim for salvage exceeds £200 in England or Ireland, the Court of Admiralty of 'Eng- land or Ireland (and in Scotland the Court of Session) may determine any ques- tion concerning the amount of the secu- rity or the sufficiency of the sureties ; and the salvor, or the owner of the property salved, or their respective agents, may institute proceedings in such respective oourts to have the questions between them adjudicated upon, and the court may en- force payment of the bond or security, as if bail had been given in the court. Ibid. s. 468. 2312. As to the enforcement of similar bail taken before the M. S. Act, 1854 (c. 104), by a receiver of Admiralty droits, see The Bagnall, 3 W. Rob. 118 ; 12 Jur. 1008 ; 6 Notes of Cases, 542. 15. Value of Property salved. (a) Generally. 2313. See tit. Salvage, c. 8. •231 3a. Where in a salvage action the defendants had given affidavits of value, which value had been accepted by the plaintiffs^ the defendants were not al- lowed to give any evidence to reduce that value. The Hanna, 3 Asp. N.S. 503. But see No. 1817, p. 1645. (b) Proof of — before Release.* See Pt. II. c. 20, p. 1559. 16. Valuation of Property salved. (a) By Agreement.] (b) By Appraisement. % (aa) Generally. SeePt. H. c. 44, p. 1671. (bb) By Receiver of WrecL§ 2314. Ibid. p. 1672. 17. Release. 2315. In a suit for salvage. of a derelict the court, on motion, allowed a portion of the cargo to be released on a moiety of the value, and a sum to answer costs being paid in. R. M. Mills, No. 243 ; July 19, 1860. 2316. As to release generally, see Pt. II. p. 1556. 18. Estoppel. Ibid. p. 1584. 19. Tender. Ibid. p. 1587. 20. Pleadings. 2317. In salvage actions the plaintiffs in their statement of claim should state fully the material facts of the service, and if such facts are admitted by the defendants, the court will not allow the plaintiffs at the hearing to amplify them by evidence except on special grounds. The Hardwich, 5 Asp. 199. See also Pt. H. c. 34, p. 1614. 21. Proofs. 2318. But they are entitled to discovery and inspection of documents, though at their own risk and cost if ultimately proved unnecessary. The Maria, 4 Asp. 94. See also No. 2320, infra. See also tit. Evidence, p. 458. * (705) The owners, before they are en- titled to a release of their property arrested in a salvage action, must file an affidavit of the values thereof. If these values are ac- cepted, the release may issue. See as to the practice thereon, Pt. II. c. 20, p. 1559. t (706) Or the values may be agreed on in a solicitor's agreement. See as to such agree- ments, Pt. II. c. 24, p. 1572. X (707) If the plaintiff is dissatisfied with the values as set forth in the owner's affi- davit of values, he may take out a commis- sion for the appraisement of the property; but he does so at the risk of costs, if the appraisement is not largely in excess of the values stated in the affidavit. See tit. Costs, p. 411. § (708) A commission of appraisement may be taken out as of course, even after a valua- tion'by the receiver of wreck. PRACTICE. Pt. III. In Particular Actions. 1693 (a) Losses and Damages to Salving Property. 2319. In a salvage action evidence of the specific injuries sustained by the salving ship and the cost of repairs thereof and of demurrage during repairs, was tendered in the Court of Admiralty, and rejected. Held, on appeal (by L.J J. Baggallay andLindley), that the judge is bound to receive such evidence, and to in- clude the loss shown in his award, except in cases where such evidence is immate- rial by reason of the property saved being too small in value to satisfy such loss, or by reason of the services being so trifling as to render it unjust that the loss sus- tained by the salvors should be borne by the owners of the salved property, or where from other circumstances it is ob- vious that the court cannot give an amount sufficient to cover the loss. But (per Brett, M. E.) that the admission of such evidence is entirely in the discretion of the judge, subject to his award being re- viewed by the_ Court of Appeal in the event of its being shown that the rejec- tion of the evidence improperly affected the amount of the award. City of Chester, 9 P. D. C. A. 182 ; 5 Asp. 311 ; 53 L. J. Adm. 90. See also The Be Bay, 8 App. Cas. 559; The Gladiator, No. 1594, 29 April, 1864; and tit. Eegistrar and Merchants, Pt. I. c. 14. (b) Protests. 2320. See tit. Evidence, pp. 438, 461, and same tit. in Addenda. (c) After Admission of Statement of Claim. 2321. See Nos. 2317, 2318, supra. 22. Trial (a) Generally. 2322. In a cause of salvage the owners appeared, but did not plead. Held, that they could not be heard by counsel at the hearing in depreciation of the ser- vices. The Emerald (2300), 13th Dec. 1864; and see Ord. XXYII. r. 11, No. 304. 2322a. As to trial generally, see Pt. II. c. 38, p. 1459. (b) Right to begin. See Pt. II. c. 38, p. 1641. (c) Consolidated Actions. 2323. Where the interests of the plain- tiffs in a consolidated salvage suit are ad- verse separate counsel will be heard on their behalf at the hearing. The Scout, L.E.3A.&E. 512; 41 L. J. Adm. 42 ; 1 Asp. N.S. 258. (d) Rival Salvors. 2324. Rival salvors allowed to cross- examine each other's witnesses on the questions upon which the salvors were at issue, but upon those only. The Morocco, 1 Asp. N.S. 46. 23. Writs of Execution. 2325. A cause of salvage was brought by the owners, master, and crew of a vessel, and the salvors were condemned in costs. On application for an order against all the salvors the court granted it against the owners only. The Wilhel- mine, 2 Notes of Cases, 218. 24. Payment out of Court. See Pt. I. c. 10, p. 1486. 25. Apportionment of Salvage.* 2326. The court will not, as a matter of course, apportion the salvage awarded, but will leave it to the salvors to divide it amongst themselves amicably. It will, however, if applied to, proceed to a distri- bution. The John Bryant, 5 Jur. 233. [Irish.] 2326a. See further as to apportionment of salvage, tit. Salvage, c. 17, and tit. Apportionment of Salvage Awards. 2327. As to the practice in actions of distribution of salvage, see c. 16, infra. 26. On Appeal. (a) From Admiralty Division to Court of Appeal. 2328. As to the practice in appeals in salvage actions from the Admiralty Di- vision to the Court of Appeal, see tit. Appeals, pp. 51^55. * (709) In salvage actions the salvage award will, on the application of any of the salvors, be apportioned by the court among them, but the application should be made at or shortly after the hearing of the cause, or any of the salvors may subsequently bring an action for the apportionment of the sal-" vage awarded. See as to such actions, c. 16, infra. 1694 PRACTICE. Pt. III. In Particular Actions. (b) From Vice-Admiralty Courts to Privy Council. 2329. As to the practice on such, appeals, see tit. Appeals, p. 51. (c) From Admiralty County Courts, Magis- trates, and others, to the Probate, Di- vorce and Admiralty Division. 2330. As to the practice on such ap- peals in salvage actions from the Admi- ralty County Courts, the Liverpool Court of Passage., Commissioners of- Cinque Ports, and Magistrates, to the Probate, Divorce and Admiralty Division, see tit. Appeals, pp. 56 — 59. 27. Costs. 2331. See tit. Costs, p. 406. 2331a. And as to costs when cargo owners were made parties after decree against ship and freight, see The Peace, No. 2302, p. 1691. 16. Actions of Distribution of Salvage. 1. Generally. 2332. As to the apportionment and dis- tribution of salvage generally, see tit. Salvage. 2333. As to particular cases of appor- tionment, see tit. Appoetiomienx of Sal- vage Awards. 2334. The 498th section of the M. S. Act, 1854 (c. 104), imposes a duty on the Court of Admiralty on application made to decree an equitable apportionment of salvage, unless barred by an equitable agreement between the parties or an equit- able tender. The Enchantress, 1 Lush- ington, 95 ; 2 L. T. N.S. 575 ; 30 L. J. Adm. 16. 2335. When an owner thinks that a proper share of the salvage award has not been paid to him, his proper course is to bring the share so paid to him into court, to pray for a monition to the master to do the same, and to apply for an order of distribution, under section 498 of the M. S. Act, 1854 (c. 104). The Princess Helena, 1 Lushington, 190 ; 30 L. J. Adm. 137 ; 4 L. T. N.S. 869. But see now Pt. II. p. 1517. 2336. Applications for apportionment should be made at the time of or shortly after the award, while the circumstances are fresh in the mind of the court. The Spirit of the Age, Swabey, 287. 2337. In an action by crew for distri- bution of salvage, the defendant's owners pleaded that after the gross amount of salvage had been determined the plain- tiffs agreed to accept a particular sum. Held, that the defence was not demurrable under the 182nd section of the M. S. Act, 1854 (c. 104), but that the court must determine at the hearing whether the agreement was an equitable one. At the hearing the court refused to disturb the agreement. The Africa, 5 P. D. 192 ; 49 L. J. P. D. 63 ; 4 Asp. 266. 2. Costs* 2338. A steamer towed into port another steamer disabled by the breaking of her crank-shaft. Both steamers he- longed to the same owners. The service consisted in towing a distance of about thirty miles without danger or risk. The salved steamer and cargo were of the value of £105,500. Fifteen of the crew of the salving .steamer brought an action for salvage in the sum of £5,000, and arrested the ship, cargo, and freight. The court expressed its disapprobation at the institution of the action in the High Court and at the arrest of the property. It awarded the salvors £1 each and con- demned them in costs. The Agamemnon, 5 Asp. 92. 17. Claims of Officers and Crews of Queen's Ships for Distri- bution of Salvage. 2339. Whenever any salvage or other award to officers and crews of her Majesty's ships shall have been paid hu.° the account of her Majesty's paymaster- general at the Bank of England, or a government accountant as therein men- tioned, the Court of Admiralty of Eng- * (710) Salvage is usually apportioned by the court on the hearing and judgment of the action for salvage, or on application to it for the purpose a few days afterwards. When a separate action is brought for apportionment or distribution of salvage, the question of costs will depend on the merits, e.g., whether the owners offered a proper distribution ui the first instance. PRACTICE. Pt. III. In Particular Actions. 1695 land, or the court -which may have awarded the salvage or monies, may direct the payment thereout of all costs, charges and expenses chargeable against it or incurred by the captor, his attorney or agent after Buch costs, charges and expenses have been allowed by the registrar of such court or his deputy. See the Naval Pay and Prize Act, 1854 (c. 19), s. 6. 2340. As to such costs, charges and expenses being taxed and allowed by the registrar of the Court of Admiralty before they are deducted therefrom, see the Naval Agency and Distribution Act, 1864 (c. 24), s. 13. 2341. The Lords of the Admiralty, or any party claiming any interest in the proceeds of any such salvage or monies may, prior to the distribution thereof, resort to the Court of Admiralty to obtain the judgment of the court in that behalf, and the judge shall proceed to hear and determine the same, and any question of joint capture arising there- on ; and such court shall have jurisdiction throughout her Majesty's dominions, and may enforce any decree or sentence of any Vice-Admiralty Court ; and all Vice- Admiralty Courts in her Majesty's- domi- nions are empowered and required to en- force within their respective jurisdictions all orders of the Court of Admiralty relating thereto. See the Naval Pay and Prize Act, 1854 (c. 19), s. 7. 2342. The judge of the Court of Admiralty may, on the application of the Lords of the Admiralty, or any person interested in any such salvage or monies, and on an affidavit that the proceeds of any such salvage or monies, distributable under the provisions of this act, or any papers or books relating thereto, are in the possession of any person, compel by process of the court, and by monition and attachment, the production thereof, and the paying and transferring of such proceeds into the naval prize account, and the answering to such interrogatories touching the same as the court may approve, and may make such order in the premises con- cerning the same, and the costs of such proceedings, as to it shall seem meet. Ibid. s. 8. 2343. For provisions for apportion- ment of the agent's percentage when the agent is charged, or more than one ship is concerned, to be settled, in cases of difference by the registrar of the Court of Admiralty, subject to an appeal to the judge, see the 'Naval Agency and Dis- tribution Act, 1864 (c. 24), s. 20. 2344. Where any question arises con- cerning the distribution of any money so distributable, or concerning any in- vestment thereof, actual or intended, the Court of Admiralty shall have exclusive jurisdiction to determine the same ; and any person claiming an interest in such money, or the Lords of the Admiralty, may apply to that court for a judgment on that question, £tad such decision shall be final.. Ibid. s. 22. 2345. Por provisions subjecting ships' agents to the authority .of the High Court of Admiralty, Ibid. s. 1 1 ; and rendering solicitors incompetent to be ships' agents, Ibid. ss. 7, 23. 2346. Por provisions for the registra- tion in the High Court of Admiralty of the appointment of every agent, see the Navy Prize Agents Act, 1863 (c. 116), s. 1 1 ; and for his removal, Ibid. ss. 8, 9. 18. In Wages Actions. 1. Generally. 2347. Mariners are the favourites of the law, and placed particularly under its protection ; The Minerva, 1 Hagg. 358 ; The Elizabeth, 2 Dodson, 407 ; The Juliana, ibid. 504 ; The Jane, Stuart's Vice-Adm. Eep. 258 [Lower Canada]; The Jupiter, 2 Hagg. 221 ; The Hoghton, 3 Hagg. 112 : especially foreign mariners, The Madonna d'Idra, 1 Dodson, 39. 2348. Questions of wages should be speedily settled. The Prince George, 3 Hagg. 377. . 2349. In an action for wages by a British subject against a foreign ship, the nationality of the vessel and not the nationality of the person suing for wages regulates the course of procedure. The Nina, L. E. 2 A. & E. 44 ; 2 P. C. 38. _ 2350. As to wages generally, see tit. Wages. As to the jurisdiction of the Admiralty Division and Admiralty Court in reference thereto, and the statutory limitation to cases over £50 and special contracts, Ibid. c. 2. As to the orders of naval courts as to wages and the conclu- siveness thereof, see tit. Jurisdiction, Pt. II. c. 2, p. 690, and ibid, same part and chapter in Addenda. As to awards by superintendents of mercantile marine offices, the proceedings thereon, and the conclusiveness thereof, see tit. Wages, c. 2. 2351. As to desertion by seamen, see tit. Seamen, Pt. V. 1696 PRACTICE. Pt. III. In Particular Actions. 2352. For provisions for the protection of seamen, see tit. Seamen, Pt. IV. 2353. For the maintenance of discipline over seamen, Ibid. Pt. V. 2. By Foreigners. (a) Generally. 2354. The Crown, on being memorial- ized by certain Greek mariners of a foreign ship sold under the authority of the Court of Admiralty, directed the king's proctor to take proceedings to recover their wages; and provided them with the means of subsistence and to re- turn to their own country. The Madonna d'Idra, 1 Dodson, 37. 2355. Where the plaintiffs are foreign sailors, and charges are made for the expenses of their return home, a certifi- cate of their consul thereon, and that they are returning at their own expense, must be produced. The Raffaeluccia, 3 Asp. N.S. 505 ; 37 L. T. N.S. 365. 2355a. See also as to wages of foreign masters and seamen generally, tit. Wages, c. 2. (b) Notice to Consul. See tit. Wages, c. 2. 3. By Masters. (a) Generally. 2358. A master of a vessel is not de- barred from suing for his wages by the fact that he is a joint mortgagee of the ship. The Repulse, 2 W. Bob. 399. 2357. The master of a vessel has the same right to sue for and recover wages due to him as an ordinary seaman, but no more, and therefore he is not entitled to recover in an action for wages until he has been discharged, or the service has been otherwise terminated. The Hemi- sphere Borealis, 5 Jur. N.S. 180. [Irish.] 2358. In a suit for his wages a master has, under the M. S. Act, 1854 (c. 104), the same rights and privileges as ordinary seamen, and is in such a suit primA facie a necessary witness, and entitled to com- * (711) In a cause of wages when the de- fendant does not deny wages to be due, but claims a set-off, the usual practice is for the defendant's solicitor, upon appearing, to give notice to the plaintiff's solicitor to the effect that he admits wages to have been earned, but will set up a counterclaim, and require the accounts to be referred to the registrar and merchants. Thereupon an agreement is usually entered into between the solicitors on both sides, that the matters of 'account rela- pensation for" board and loss of time. The Olive r Swabey, 292. 2359. Neither error nor want of sea- manship, nor improper refusal to sign a bottomry bond, can, in an action at law or in the Court of Admiralty by the master for his wages, be admitted as evidence in reduction of his claim if he continued in command of his ship. The Camilla, Swabey, 315. 2360. If in proceedings in the Court of Admiralty in any claim by the master of any ship for wages, and for disburse- ments made by him on account of the ship, the plaintiff does not recover fifty pounds, he is not entitled to any costs, charges, or expenses incurred by him therein, unless the judge certifies that the cause was a fit one to be tried in that court. See the Admiralty Court Act, 1861 (c. 10), s. 10. 2361. As to actions for master's wages, see tit. Wages, cc. 2, 3. (b) Accounts.* 2362. As to the jurisdiction of the Court of Admiralty over master's accounts and cases thereon, see M. S. Act, 1854 (c. 104), s. 191, the Admiralty Court Act, 1861 (c. 10), s. 10, and tit. Masters, pp. 1123—1128. 2362a. The master is bound to furnish accounts before bringing his action for wages and accounts, or he will be de- prived of costs. The Fleur de Lys, L. E. 1 A. & E. 39. 2363. See also as to costs, No. 2360, supra; and tit. Costs, p. 414. 2663a. As to references of such accounts to the registrar and merchants, see Pt. II. c. 40, p. 1652. 2364. As to the allowance of such accounts, see tit. Eegisteae and Mer- chants, Pt. I. c. 10. 4. Agreements. (a) Generally. 2365. As to shipping agreements, see tit. Seamen, Pt. II. tive to the plaintiff's olaim and the defendant's counterclaim be referred to the registrar and merchants, and the reference proceeds ac- cording to the practice.in other cases of refer- ence. (711a) If the plaintiff's solicitor will not' enter into such an agreement, the defendant's solicitor must apply to the judge to order a reference of the claim and counterclaim to the registrar and merchants. PRACTICE. Pt. III. In Particular Actions. 1697 (b) Powers of Court to annul — . See tit. Seamen, Pt. II. 5. Gradation of Wages on Promotion. 2366. A claim for a gradation of wages, first as mariner, afterwards as second mate, and then as chief mate, preferred by a person originally taken on board as supernumerary, and without any fixed rate of wages, pronounced for, with costs. The Porcupine, 1 Hagg. 381. See also tit. Wages, c. 13. 6. Recovery of Wages of Seamen entering the Navy. 2367. For provisions in cases of a sea- man leaving his vessel to enter the Royal Navy and being paid his wages by bill not duly paid when presented, that the accountant-general or the seaman may sue thereon and recover the amount thereon in the same manner as wages, see the M. S. Act, 1854 (c. 104), s. 215. 7. Recovery of Expenses of Seamen left Abroad. 2368. For provisions, in case of any master of any British vessel leaving abroad any seamen unable to proceed, for the delivery by the master to the functionaries therein mentioned of a cer- tificate thereon, and an account of wages, and the payment of the same by money or bill, and for the endorsement of such account on the ship's articles or agree- ment, Ibid. s. 209, and tit. Seamen, Pt. IV. 2369. For further provisions for the payment of such wages in money where practicable, and not by bill, and in cases of bill rendering the owner liable for pay- ment thereof, that it shall not be necessary in proceeding against the owner thereon to prove that the master had authority to draw the bill, and that any bill so drawn and its endorsement, if produced out of the proper custody, shall be received in evidence, see the M. S. Act Amendment Act, 1862 (c. 63), s. 19. 8. Recovery of Wages and Expenses of Distressed Seamen left Abroad. 2370. For provisions in cases of any seaman or apprentice belonging to any British ship, or of any British subject serving in any foreign vessel, being left abroad, becoming distressed, and being relieved, that the Board of Trade may sue for and recover his wages and expenses from the master, owner, or hirer, in the same manner as wages due to seamen, and as to the evidence in such cases, see the M. S. Act, 1854 (c. 104), s. 213, and the M. S. Act Amendment Act, 1862 (c. 63), s. 22. As to the extension of such provisions to foreign governments and vessels, see the M. S. Act Amend- ment Act, 1855 (c. 91), s. 16. 2371. For provisions on discharge of any seaman abroad through sale of the ship or otherwise, that a certificate of dis- charge is to be given to the seaman, and funds are to be provided sufficient to de- fray the expenses of his subsistence and passage home ; and if the master refuses or neglects to comply with these require- ments, that such expenses, if defrayed by the consular officer at that place, or any other person (unless such seaman or ap- prentice has been guilty of barratry), shall be a charge upon the ship and the owners, and may be recovered against them with costs, at the suit of the consular officer or other person defraying such ex- penses, or, in case the same has been al- lowed to the consular officer out of the public monies, as a debt due to her Ma- jesty either by ordinary process of law, or in the manner in which seamen are en- abled to recover wages ; and that such expenses, if defrayed by the seaman or apprentice, shall be recoverable as wages due to him, Ibid. s. 205. See also tit. Seamen, Pt. IV. 9. Recovery of Expenses of Seaman's Illness or Injury. 2372. For provisions in case the ex- penses to be borne by the owner in respect of the illness, injury, or hurt of any sea- man or apprentice, are paid by any con- sular officer or other person on behalf of her Majesty, that such expenses and costs shall be a charge upon the ship, and be recoverable against the master or owner in the same manner as wages due, and as to the evidence thereon, see the M. S. Act, 1854 (c. 104), s. 229. See also tit. Wages, c. 12. 10. Recovery of Wages of Deceased Seaman. 2373. As to the recovery of wages of deceased seaman, see tit. Wages, c. 19. 1 1 . Compensation for Ill-usage. 2374. For provisions that if any sea-> man on his return to the United Kingdom proves that the master or owner has been 1698 PRACTICE. Pt. III. In Particular Actions. guilty of any conduct or default which, but for this enactment, would have enti- tled the seaman to sue for wages before the termination of the voyage or engage- ment, he shall be entitled to recover in addition to his wages such compensation, not exceeding twenty pounds, as the court hearing the case thinks reasonable, see the M. S. Act, 1854 (c. 104), s. 190. See also tit. Seamen, Pt. IY. 12. Compensation for improper Discharge. 2375. For provisions that any seaman who has signed an agreement, and is afterwards discharged before the com- mencement of the voyage, or before one month's wages are earned, without fault on his part justifying such discharge and without his consent, shall be entitled to receive from the master or owner, in addition to his wages earned, compen- sation for the damage thereby caused to him, not exceeding one month's wages, and to recover such compensation as wages, see M. S. Act, 1854 (c. 104), s. 167. See also tit. Wages, c. 14. 13. Compensation for bad or short Pro- visions. 2376. For provisions that in case the seamen's stipulated allowance of provi- sions is reduced during the voyage, or is of bad quality, compensation is to be given for the same, and to be recoverable as wages, see ibid. s. 223. 2377. And as to the vessels and crews to which such enactments apply, ibid. s. 109. See also tit. Seamen, Pt. IV. 14. Waiver of Rights to Wages. 2378. For provisions that no seaman shall by any agreement forfeit his lien on the ship, or be deprived of his remedies for recovery of his wages ; and that every stipulation in any agreement inconsistent with any provision of this act, and every stipulation by which any seaman consents to abandon his right to wages on the loss of the ship shall be inoperative, see M. S. Act, 1854 (c. 104), s. 182. 2379. For provisions that no wages of any seaman or apprentice shallbe sub j ect to attachment or arrestment from any court, and that every payment of wages shall be valid, notwithstanding any previous sale or assignment thereof, or of any attachment, incumbrance, or arrestment thereon ; and that no assignment or sale of such wages made prior to their accruing shall bind the party making it ; and that no power of attorney or authority for the receipt of any such wages shall be irre- vocable, Ibid. s. 233. 2380. For provisions that, on the com- pletion before a superintendent of a mer- cantile marine office, of any discharge and settlement, the master or owner and each seaman shall, in the presence of the superintendent, sign in a form sanctioned by the Board of Trade a mutual release of all claims, and that the superintendent shall attest it ; and that such release shall operate as a settlement of all demands between the parties ; and that a copy of such release, certified by the superin- tendent, shall be receivable in evidence on any question touching such claims, and have the effect of the original, Ibid. s. 175. See also tit. "Wages, e. 15. 15. Deductions or Forfeitures. 2381. For provisions that whenever in any proceeding relating to seamen's wages it is shown that any seaman or apprentice has, in the course of the voyage, been convicted of any offence by any compe- tent tribunal, and rightfully punished therefor by imprisonment or otherwise, the court hearing the case may direct a part of the wages due to such seaman, not exceeding £3, to be applied in re- imbursing any costs properly incurred by the master in procuring such conviction and punishment, Ibid. s. 251. 2382. As to deductions from and for- feitures of wages, as to acts of misconduct entailing such penalties, and as to wages earned on illegal voyages, see tit. Wages, cc. 16, 17. 2383. As to the entry of offences in log, see tit. Evidence, pp. 434—437. 1 6. Who may sue. 2384. Infancy is no answer to a claim for wages accruing due after majority has been attained, although on a contract of hiring originally made under age. Thomas v. Waldo, 1 F. & F. 173. 2385. As to the parties who may sue in the Court of Admiralty as mariners for wages, see tit. Wages, c. 3. 17. Who may defend. 2386. The result of a suit for wages mainly affected the owners of the cargo bottomried, as the more numerous the claims on the ship the less would be avail- PRACTICE. Pt. III. In Particular Actions. 1699 able from that source towards the satis- faction of the bond, and therefore the more would he payable towards the bond by the owners of cargo. The court al- lowed them to have a persona standi, as through the bondholder, to oppose the seamen's claims. The Union, 1 Lushing- ton, 128 ; 30 L. J. Adm. 17 ; 3 L. T. N.8. 280. 2386a. See also as to parties and pro- perty liable, ss. 18 and 19, infra. 18. Parties liable. (a) Owners. 2387. Part owners may be sued in the Admiralty by the mariners of their ves- sels for their wages. Alleson v. March (1689), 2 Vent. 181 ; Rawlinson v. Pagan, anno 1693, Marsden, p. 269 ; Wheeler v. Thompson (1738), 1 Stra. 707; Ragg v. King (1729), 2 Stra. 858 ; The Jack Park, 4 0. Eob. 311; The Stephen Wright, 12 Jur. 732 ; The St. Johan, 1 Hagg. 334. See also tit, Wages, c. 6. (b) Masters. 2388. The master may be sued in the Admiralty by his mariners for their wages. Bayly v. Grant, 1 Salt. 33 ; 12 Mod. 444 ; 1 Ld. Eaym. 632 ; Holt, 48 ; Anon. 2. Show. 86 ; Hook v. Moreton, 1 Ld. Eaym. 397 ; The Jack Park, 4 C. Eob. 311 ; The Salacia, 7 L. T. N.S. 440 ; Ball v. Bright, anno 1713, Marsden, 303. 2389. And has his remedy against the owners. Buck v. Rawlinson, 1 Bro. P. C. 137. See also tit. "Wages, c. 6. (c) Other Parties* 2390. Quare, whether, the ship having been sold, the proceeds being insufficient to pay the mortgagees thereon, and the owner being a bankrupt, a principal mortgagee has a sufficient interest to op- pose a mariner's claim for wages ? The Prince George, 3 Hagg. 377, 380.f 2391. Mortgagees in possession of a ship are in no better position than the owners with regard to the claims of the master. The Caledonia, Swabey, 17 ; 20 Jur. 48 ; 26 L. T. 177 ; 4 W. E. 183. See also The Union, No. 2386, stipra; and as to mortgagee's right to defend such actions, Pt. II. p. 1503. 19. Property liable. (a) Generally. 2392. An insured ship was lost, and the insurance recovered by the assignees of the owner, who had become bankrupt. Held, that the seamen were entitled to be paid in full out of the insurance money. In re Dawson, 1 Fonb. N. E. 229; 17 L. T. 100. (b) Ship. 2393. The Court of Admiralty has no authority to restrain seamen from pro- ceeding against the ship for their wages, and to drive them to a personal action against the owners, even though the court may be satisfied that the owners are sol- vent. The Arab, 5 Jur. N.S. 417. 2393a- See also tit. Wages, c. 5. 2394. No right to wages shall be de- pendent on the earning of freight ; and every seaman and apprentice who would be entitled to recover wages if the ship in which he served had earned freight, shall, subject to all other rules of law and con- ditions applicable to the case, be entitled to claim and recover the same, notwith- standing freight has not been earned ; but in all cases of wreck or loss of the ship, proof that he has not exerted himself to the utmost to save the ship, cargo, and stores, shall bar his claim. See M. 8. Act, 1854 (c. 104), s. 183. 2395. As to proceedings against British or foreign government vessels, see tit. Jurisdiction, Pt. I. pp. 668, 669. J 2396. A master had recovered j udgment in an action at common law for his wages, which judgment remained unsatisfied in consequence of the defendant's bank- ruptcy. He had also proved his debt under the defendant's bankruptcy. Held, entitled to Sue the ship in the Admiralty Court, notwithstanding the ship had been sold. The Bengal, Swabey, 468 ; see also * (712) After an abandonment has been accepted by the underwriters, they become owners for the voyage, and are liable for the seamen's wages from the time they become owners. Hammond v. The Essex Fire and Marine Ins. Co., 4 Mason, 196. [American.] t (713) This case occurred before the court was authorized by statute to take cognizance of the claims of mortgagees. X (713a) Mariners enlisting on board a ship of war or vessel belonging to a sovereign state cannot libel against the ship for wages due. Moitez y. The South Carolina, Bee, 422. [American.] 1700 PRACTICE. Pt. III. In Particular Actions. The Tecumseh, 3 W. Eob. Ill ; 12 Jur. 985 ; 6 Notes of Cases, 533. 2397. See further, as to the mariner's lien on the ship for his wages, tit. Wages, c. 15. (c) Freight. 2398. Seamen may arrest the freight as well as the ship for their wages, and if the latter only is in the first instance arrested hy them, and it appears that there are bottomry claims thereon, they may afterwards apply to have the freight arrested, and the court would be bound, ex debito justitice, to grant such a motion. The Mary Ann, 9 Jur. 94 ; The Juliana, 2 Dodson, 510, 516. 'See also tit. Wages, c. 15. (d) Cargo. 2399. A mariner has no lien for wages on the cargo as cargo ; his lien is upon the ship to the last plank, and upon the freight as appurtenant thereto ; and so far as the cargo is. subject to freight, he may attach it as security for the freight that may be due. Qutere, whether on the loss of a ship, if any cargo were saved, it could be held to represent the freight? The Lady Durham, 3 Hagg. 200,201. 2400. Against the cargo, qua cargo, the seaman can have no claim for his wages, but qutsre, as to his claim against cargo, where freight has been earned, though not paid, and where the owner of the ship is the owner of the. cargo, and the ship is lost, but the cargo saved. The Riby Grove, 2 Eob. 59. See also tit. Wages, c. 15. 20. Commencement of Right of Action. 2401. As to the termination of the con- tract or voyage, and the discharge of the seaman, see tit. Seamen, Pt. III. 2401a. As to what shall be deemed the commencement of the earning of wages and of the right of action for wages, see tit. Wages, cc. 10, 11. 21. Warrant. SeePt. II. c. 11, p. 1524. 22. Consolidation. 2402. All or any one of the mariners of a ship may sue in the Court of Ad- miralty for their wages, and they may proceed jointly, notwithstanding their contracts are separate. Hook v. Moreton (1697), Ld. Eaym. 398. 2402a. Wages actions may be consoli- dated. The Adventure, 3 Hagg. 153. 2403. And see as to consolidation of actions generally, Pt. II. c. 17, p. 1543. 23. Bail. 2404. As to bail and juratory caution, see Pt. II. c. 19, p. 1555. 24. Proceedings by Default. 2405. Where there are funds in court from the sale of a ship in an action in which the proceedings were by default, all preliminary proceedings may, in a subsequent action of wages, be waived, and the wages due paid out of the funds in court. The Julina, 35 L. T. N.S. 410. 2406. As to proceedings by default generally, see Pt. II. c. 22, p. 1561. 25. Abatement and Revival. See c. 2, p. 1581. Ibid. Ibid. Ibid, p, 26. Estoppel. 1585. 27. 1588. Tender. 28. Pleadings. 1614. 29. Proofs. 2407. For provisions that any seaman may bring forward evidence to prove the contents of any agreement, or otherwise to support his case, without producing or giving notice to produce the agreement, or any copy thereof, see the M. S. Act, 1854 (c. 104), s. 165. 2408. An abandonment of a ship which is relied upon as operating as a dissolution of the seamen's contract must be clearly proved. The Warrior, 1 Lush- ington, 476. 2409. It is not necessary for a mariner to prove his own discharge ; the onus of proof of that is thrown on the other party. The Baltic Merchant, Edwards, 89. 2410. See further, as to the discharge generally of seamen, and the termination of the voyage, tit. Seamen, Pt. HI. ; and as to the commencement of their right to sue, tit. Wages, c. 11. 2411. In a cause of wages in which the evidence was deficient the court ordered the suppletory oath to be ad- PRACTICE. Pt. III. In Particular Actions. 1701 ministered to the plaintiff. The Josepha, Stuart's Vice-Adm. Eep. 212 [Loweb Canada] ; 2 Brown's Civil and Adm. Law (2nd ed.), 385* 2412. See also as to proofs in wages actions, and as to seamen, tit. Evidence, cc. 27, 28, pp. 461—463. 30. Writs of Execution. 2413. For provisions that in all cases where any court, justice of the peace, or other magistrate, has power to order pay- ment of any seaman s wages, penalties, or sums of money, then, if the party directed to pay the same is the master or owner of the ship, and the same is not paid as prescribed, any such functionary who made the order may, in addition to powers of compelling payment, direct the amount to he levied by distress or poind- ing and sale of the ship, her tackle, fur- niture, and apparel, see the M. S. Act, 1854 (c. 104), s. 523. 2414. See Pt. II. c. 44, p. 1460. 31. Payments into and out of Court. 2415. SeePt. I. c. 9, p. 1479, andc. 10, p. 1486. 32. Payment. (a) Generally. See also tit. Wages, c. 19. (b) To Consul of Foreign Seamen. 2416. In an action for wages by foreign seamen, if their consul intervenes and asks that payment of the wages due to them be made to him on their behalf, the court usually grants the application. The Timor, 9 L. T. N.S. 397 ; 12 W. E. 219. But see No. 2417. 2416a. "When foreign seamen sue for their wages in the Court of Admiralty, the consul of their country residing here may, if he has paid their wages and the seamen have left this country, receive the wages on behalf of the seamen without any power of attorney from them for that purpose. The Charles, No. 1847, 20th October, 1863. But see No. 2417. 2417. When a ship has been sold in a cause in which no appearance has been entered and the proceeds remain in the registry, all preliminary proceedings in a cause of wages may be waived and the money due paid out of court. The Julina, 35 L. T. N.S. 410. (c) Up to Judgment. 2418. A sailor whose claim for wages is pronounced for is entitled, under the M. S. Act, 1880 (c. 16), s. 4, to wages up to the date of the verdict. Delaroque v. S.S. Oxenholme Sf Co., 22nd December, 1883. 33. Repayment. 2419. The master who has paid the seamen their wages cannot recover them by action against the owners for such wages in the Court of Admiralty. Anon. Fort. 230; Woodward v. Bontham, 1 Ld, Eaym. 3 ; The Buna, 6 Irish Jur. N.S. 358. 2420. But he may include them in his accounts against the owners, and recover them in an action for his wages and dis- bursements. The Duna, supra. 2421. As to the transfer of such liens with the sanction of the court, see tit. Liens, p. 811. 2421a. As to their generally not being transferable without such sanction, Ibid. 34. Double Pay. 2422. For provisions that every master or owner who neglects or refuses to pay the seaman's wages in manner therein mentioned without sufficient cause, shall pay to him a sum not exceeding the amount of two days' pay for each day, not exceeding ten days, during which payment is delayed, and that such sum shall be recoverable as wages, see the M. S. Act, 1854 (c. 104), s. 187. 2422a. See also tit. Wages, c. 14. 2423. As to the master being similarly entitled, see The Princess Helena, 1 Lush- ington, 190; 30 L. T. Adm. N.S. 138. 2424. As to the cases in which the master or. seaman is, and is not, entitled to the statutory ten days' double pay for default in payment of his wages, see tit. Wages, c. 14. * (714) According to the old practice in the civil law courts, if the plaintiff had not made out his case, but had made half proof or more, the court might order the suppletory oath (which is to the effect that the contents of his pleadings are true) to he administered to him by way of further proof. See Dunlap's Adm. Prac. (2nd ed.), 247 et seq., and the subject considered there. [American.] 1702 PRACTICE. Pt. III. In Particular Actions. 35. Liens. See tit. "Wages, c. 15. 36. Priority of Wages over other Liens. 2425. As to the priority of master's wages and disbursements over other liens, see tit. Liens, p. 831. 2426. And as to the priority of sea- men's wages over other liens, Ibid. p. 832. 37. Laches. 2427. As "to laches in actions of wages, see tit. Laches, p. 805. 38. Costs. See tit. Costs, p. 412. 39. Security for Costs. See tit. Costs, p. 365, also Pt. II. p. 1555. 19. Claims in respect of Volun- teers into the Navy. 2428. For provisions that any seaman may leave his ship to enter the Eoyal Navy, and that such leaving* shall not be deemed a desertion, and that all stipula- tions as to forfeiture for so doing shall be void, and the parties inserting them being liable to penalties, see the M. S. Act, 1854 (c. 104), s. 214. 2428a.' If, in consequence of any sea- man leaving his ship without the consent of the master or owner to enter the Eoyal Navy, it becomes necessary for the safety and proper navigation of the ship to en- gage a substitute, and if the remuneration paid to such substitute or substitutes ex- ceeds that of the seaman under his agree- ment, the master or owner of the ship may apply to the registrar of the Court of Admiralty in England for a certificate authorizing the repayment of such excess ; and such application is to be in such form, and accompanied by such docu- ments, and on oath or otherwise, as the judge of the court directs. Ibid. s. 217. 2429. The registrar, upon receiving any such application, is to give notice thereof in writing, and of the sum claimed, to the secretary to the Admiralty, and proceed to examine the application, and may call upon the registrar-general of seamen to produce any papers in his pos- session relating thereto, and may call for further evidence : and if the whole of the claim appears to him to be just, he is to give a certificate accordingly. Ibid. s. 218. 2429a. If the registrar considers that such claim, or any part thereof, is not just, he is to give notice of such Ms opinion in writing to the person making the application, or his attorney or agent; and if within sixteen days from the notice such person does not leave, or cause to be left, at the office of the registrar a written notice demanding that the application shall be referred to the judge, then the registrar is finally to decide thereon, and certify accordingly. Ibid. 2430. If, however, such notice is so left, then the application stands referred to the judge in chambers, and his deoision thereon is final, and the registrar shall certify accordingly. Ibid. 2430a. The registrar and judge have in every proceeding under this act full power to administer oaths, and to exercise all the ordinary powers of the court. Ibid. 2431. The registrar or judge (as the case may be) may, if he thinks fit, allow for the costs of any proceeding under this act any sum not exceeding five pounds for each seaman so quitting his ship; and such sum shall be added to the sum allowed, and be certified by the registrar accordingly. Ibid. 2431a. Every certificate so given shall be sent by post or otherwise to the person making the application, his attorney or agent, and a copy thereof sent to the ac- countant-general of the navy, who, upon delivery to him of the original certificate, with a receipt in writing from the master or owner making the application, shall pay the amount to the applicant. Ibid. s. 219. 2432. Such certificate and receipt ab- solutely discharges the accountant-general and her Majesty from all liability in re- spect to the monies so paid, or of the application. Ibid. 2432a. So much of the third part of this act as relates to seamen volunteering into the Eoyal Navy applies to all sea-going British ships, wherever registered, and their owners, masters, and crews, wher- ever they may be. Ibid. s. 109. 2433. For provisions that every person who, in making or supporting any such application, fraudulently alters or forges, or assists or procures to be forged, or fraudulently altered, any document, or presents or makes use of any such forged or altered document, or gives, or procures to be given, any false evidence or repre- sentation, knowing the same to be false, shall be deemed guilty of a misde- meanor, Ibid. s. 220. 2433a. As to the fees payable on filing PRACTICE. Pt. IV. Inferior Courts. 1703 such claims and on the registrar's certi- ficate objecting thereto or ordering pay- ment, see S. C. Fees, 1884, p. 19, Nos. 138—140. See also No. 2367, p. 1697. Part IV.— INFERIOR COURTS, 1. The Court of Admiralty of the Cinque Ports. 1. Generally.* 2434. As to the names of the Cinque Ports and the boundaries of the Lord Warden of the Cinque Ports jurisdiction, see tit. Jurisdiction, p. 676, n. 2435. All causes in the court shall be in- stituted as prescribed by the Eules and Orders for the High Court of Admiralty in England in force for the time being, and shall be carried on by petition and answer, and in all respects to termination conformably to those rules, as far as they can be or are applicable, to the jurisdic- tion of the Admiralty of the Cinque Ports, and are not hereby varied. See Eules for the Court of Admiralty of the Cinque Ports, made June, 1875, No. 1. 2436. The interpretation clause of those rules of the High Court of Admiralty is to be read by substituting the Court of Admiralty of the Cinque Ports for the High Court of Admiralty. Ibid. No. 9. 2437. The ancient practice of the court continues in force where the Admiralty Court Eules and Orders are inoperative or inapplicable. Ibid. No. 2. 2438. The judge or his surrogate in all cases of doubt from time to time de- termines the practice of the court, on ap- plication at chambers, through the regis- trar. Ibid. No. 5. 2439. Including the direction within what time any pleadings or proofs are to be brought in or filed. Ibid. No. 6. 2440. The registrar is the examiner of the court. Ibid. No. 7. 2. Jurisdiction. (a) Generally. 2441. As to the jurisdiction of the Lord Warden of the Cinque Ports, and their boundaries, see tit. Jurisdiction, p. 676, n. (b) Concurrent Jurisdiction of Admiralty Division. 2442. As to the concurrent jurisdiction •within the Cinque Ports of the Admiralty Division and the Cinque Ports Court of Admiralty, see tit. Jurisdiction, p. 676. 3. Practitioners. 2443. All Serjeants and barristers-at- law, and all solicitors, are entitled to practise in the court. See Eules for the Court of Admiralty of the Cinque Ports, made June, 1875, No. 10. 4. Pleadings, Proofs, and Printing. 2444. The pleadings and proofs are printed, unless the judge or his surrogate otherwise orders. Ibid. No. 3. See also Nos. 2435, 2439, 2440, supra. 5. Fees. 2445. The registrar has the power to determine from time to time the fees and expenses to be paid or allowed to the Serjeant of Admiralty. Ibid. No. 8. 2446. The fees are paid in money and not in stamps. Ibid. No. 4. 6. Appeal as to Salvage from Cinque Ports Commissioners. 2447. In all cases arising within the jurisdiction of the Cinque Ports, as defined by the act 1 & 2 Geo. 4, c. 76, s. 18, certain appeals may be made to the Court of Admiralty of the Cinque Ports in lieu of the Court of Admiralty ; and the instruments of appeal are to be lodged in the registry of the Cinque Ports, and the same discretion vested in the judge of the Cinque Ports Court as is by this act vested in the judge of the Court of Admiralty. See the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), s. 33. 2448. As to the practice in the Admiralty Division on such appeals, see tit. Appeals, p. 57. 2449. As to costs of such appeals, see tit. Costs, p. 397. 2450. As to commissioners of Cinque Ports, see next chapter. 2. Commissioners of Cinque Ports. 2451. The Lord Warden of the Cinque * (715) Semble, the Eules and Orders of November, 1859, of the Court of Admiralty, though annulled as to the Admiralty Division by E. S. C. 1883, App. O., are therefore still in force. See, as to the same, Pritchards' Adm. Digest, 2nd ed. vol. 2, App. p. 233, and Eoscoe's Adm. Practice, 2nd ed. App. in., p. 389. 1704 PRACTICE. Pt. IV. Inferior Courts. Ports may nominate three or more sub- stantial persons in each of the Cinque Ports, two ancient towns and their mem- bers, to determine any differences relative to salvage between the master of any vessel and the person or persons bringing her cables and anchors ashore from any roadstead or other place within their j urisdiction. The salvage is to be awarded within the space of twenty-four hours after such difference shall be referred to them for determination. Such commis- sioners shall, immediately after their nomi- nation, proceedto elect a proper person, who shall be a notary or master extra- ordinary in Chancery, as their secretary or registrar, except as to the port of Dover, where the registrar of the Court of Admi- ralty of the Cinque Ports shall be the registrar ; and the secretary, or registrar, shall enter in a book all the proceedings of the commissioners and a copy of the awards they shall make. See 1 & 2 Geo. 4, c. 76, s. 1. 2452. The deputy warden of the Cinque Ports, and lieutenant of Dover Castle for the time being, may also appoint such commissioners. . See 9 Geo, 4, c. 37, s. 1. ' 2453. The commissioners may decide on all claims and demands whatever, by pilots, hovellers, boatmen, and other per- sons, for services of any description ren- dered to any vessel, within such jurisdic- tion, or for the saving within the juris- diction of any goods or merchandise wrecked, stranded, or cast away from any vessel, the master or owners thereof, or their agents, being present at the place where the commissioners shall be sitting. The commissioners may examine the parties or their witnesses upon oath, which oaths may be administered by the secretary or registrar. See 1 & 2 Geo. 4, c. 76, s. 2. 2454. No person appointed a commis- sioner has power to act in any other port or place than that from which his residence is not distant more than a mile. Ibid. s. 3. 2455. For provisions as to the fees to be payable to such commissioners, and the oath, to be taken by them before acting, ibid. 2456. The Lord Warden of the Cinque Ports and the lieutenant of Dover Castle, the deputy wardens of the Cinque Ports and the judge of the Court of Admiralty of the Cinque Ports, two ancient towns, and their members, and any other officer specially appointed by the lord warden, and every of them, may perform within the jurisdiction all matters contained in this act, like any magistrate or commis- sioner appointed under this act. Ibid. s. 15. 2457. Quare, whether the requisites of the stat. 1 & 2 Geo. 4, c. 76, providing that in proceedings for salvage before the commissioners of Cinque Ports a person should be present to represent the owners is a condition precedent, the non-com- pliance with which renders the judgment of the commissioners of no avail, or a con- dition subsequent, the absence of which would not render the award null and void. The David Luchie (1840), 9 Monthly Law Mag. (Notes of Cases), 211. 2458. As to appeals from Cinque Port Commissioners to the P., D. and A. Div. see tit. Appeaxs, pp. 15, 57, and Ibid, in Addenda ; and to the Court of Admiralty of the Cinque Ports, see No. 2447, supra. 2459. As to the costs of such appeals, see tit. Costs, p. 897. 3. Admiralty County Courts. 1. Generally. 2460. For provisions for the appoint- ment of Admiralty County Courts and their districts, the jurisdiction thereof, and the procedure therein, see the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), ss. 2 and 5 ; the Amendment Act of 1869 (c. 51) ; and the County Courts Act, 1875 (c. 50). 2461. As to the powers of inferior courts having Admiralty jurisdiction to grant such relief or remedy, and give such effect to every ground of defence or counterclaim, equitable or legal (subject as therein mentioned),, as fully as the High Court, see the Judicature Act, 1873 (c. 66), ss. 88—90, and tit. Juris- diction, p. 675. 2462. Admiralty causes in a county court are heard and determined in like manner as ordinary civil causes there (except as regards the assistance of nautical assessors as therein mentioned). See the County Courts Admiralty Juris- diction Act, 1868 (c. 71), s. 10. 2463. For provisions as to the appoint- ment and removal of assessors, the re- muneration of registrars, scale of costs, and power to registrars to .administer oaths and take evidence, Ibid. ss. 14 — 19. 2464. The jurisdiction conferred by this act, and by the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), may be exercised by proceedings in rem or in personam. See the County Courts Admiralty Jurisdiction Amendment Act, 1869 (c. 51), s. 3. 2465. The judge shall hear and de- PRACTICE. Pt. IV. Inferior Courts. 1705 termine Admiralty causes at the usual courts held within his jurisdiction, or at special courts to be held by him, and which he is required to hold as soon as may be, after having had notice of an Admiralty cause within the jurisdiction. See the County Courts Admiralty Juris- diction Act, 1868 (c. 71), s. 13. 2465a. As to the powefs by general orders for regulating the practice and procedure of the Admiralty jurisdiction of the county courts, the forms of processes and proceedings, the days and places of sittings for Admiralty causes, the duties of the judges and officers, and the fees to be taken, Ibid. ss. 35, 36. 2466. For the rules as to Admiralty actions in Admiralty County Courts, viz. : the sittings of the court, the institution of the action, summons, arrest, appear- ance, and release of property, transfer of action, second or cross-action, enforce- ment of orders, execution against vessel, transfer of sale, notice of defence in col- lision, tender, payment out of court, ap- praisement, records of court, copies, and assessors, see County Court Eules of 1886, pp. 154—162. 2467. As to forms of Admiralty pro- ceedings in Admiralty County Courts, viz. : Pracipe on entering plaint, precipe for permission for suit to be heard at a special place, summons, warrant, bail bond, order of release, pracipe to enter appearance, notice of hearing, order of transfer to High Court, order of transfer to county court, judgment, pracipe for and warrant of execution, order of trans- fer of sale to High Court, prcecipe for paying in money, solicitor's acceptance of service and undertaking for bail, sum- mons to assessors, order fining assessor for non-attendance, Admiralty actions book, Ibid. Nos. 317—337, pp. 362—371. 2. List of— . 2468. For a list of the Admiralty County Courts, see Order in Council of Dec. 9, 1868; ibid, of Jan. 14, 1869; March 31, 1870; May 16, 1871; May 16, 1878; and June 29, 1882. 3. Assessors. 2469. In an Admiralty cause in a county court the cause shall be heard and deter- mined like ordinary civil causes there ; except that in any Admiralty cause of salvage, towage or collision, the judge may be assisted by two nautical assessors like the judge of the Court of Admiralty is assisted by assessors. See the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), s. 10. 2470. In such causes the judge may, if he thinks fit, and shall, on request of either party, summon as general orders direct two nautical assessors, and such nautical assessors shall attend and assist accordingly. Ibid. s. 11. 2471. The registrar of each county court having- Admiralty jurisdiction shall from time to time frame a list, to be approved by the judge of the Court of Admiralty before whom the same shall be laid by the county court judge, and without whose approval it shall have no validity, of persons of nautical skill and experience residing or having places of business within the district of the county court, to act as assessors in that court, and shall cause the list to be published in the London Gazette. Ibid. s. 14. 2472. Every person named in the list so framed and approved shall attend the county court under such circumstances, and in such rotation, and subject to such regulations, and receive such fees for his attendance, as general orders direct, and for every wilful non-attendance shall be liable, at the discretion of the court, to a penalty not exceeding £5. Ibid. s. 15. 2473. In any Admiralty or maritime cause the judge may, if he think fit, or on the request of either party, be assisted by two mercantile assessors ; and all the provisions of the County Courts Admi- ralty Jurisdiction Act, 1868, with refer- ence to nautical assessors, shall apply to the appointment, approval, summoning, and remuneration of such mercantile assessors. The County Courts Admi- ralty Jurisdiction Amendment Act, 1869 (c. 51), s. 5. 2474. The judge of the county court is not bound by the opinion of his nautical assessors, but ought to give his judg- ment in accordance with his own opinion. The Aid, 6 P. D. 84 ; 50 L. J. P. D. 40 ; 4 Asp. 410, 432. 2475. See also, as to the appointment and removal of assessors, the County Court Eules, 1886, Ord. XXI. pp. 106 — 108. 4. Jurisdiction. (a) Generally. 2476. As to the jurisdiction of Admi- ralty County Courts generally, and in actions of collision, damage to ships, 5 R 1706 PRACTICE. Pt. IV. Inferior Courts. damage to cargo, use or hire of ship, necessaries, salvage, and towage, and ■wages, see tit. Jurisdiction, pp. 677 — 680 ; and as to necessaries, repairs, and supplies, that tit. p. 1156. 2477. These courts have no jurisdic- tion in actions of bottomry. The -Elpis, L. E. 4 A. & E. 1 ; 42 L. J. Adm. 43 ; 1 Asp. N.8. 472. 2478. As to prohibition to such courts, see tit. Jurisdiction, p. 680. (b) Concurrent Jurisdiction of Admiralty Division in Salvage Actions in certain 2479. The effect of the 9th section of the County Courts Admiralty Jurisdic- tion Act, 1868, is to give the Court of Admiralty jurisdiction in cases of salvage, where the amount claimed exceeds £300, although the value of the property saved does not exceed £1,000. The Empress, L. E. 3 A.. & E. 502 ; 41 L. J. Adm. 32 ; 1 Asp. N.S. 183. 5. Commencement of Proceedings. (a) In which Court. 2480. Proceedings in an Admiralty cause shall be commenced — (1) In the county court having Admiralty jurisdic- tion within the district of which the vessel- or property to which the cause relates is at the commencement of the proceedings. (2) If the foregoing rule be not applicable, then in the county court having Admiralty jurisdiction in the district of which the owner of the vessel or property to which the cause relates, or his agent in England, resides; or if such owner or agent does not reside within any such district, then in the county court having Admiralty jurisdic- tion the district whereof is nearest to the place where such owner or agent resides. (3) If for any reason the last foregoing rule is not applicable or cannot be acted on, then in such county court having Admiralty jurisdiction as general orders direct. (4) In any case in the county court or one of the county courts having Admiralty jurisdiction in which the par- ties by a memorandum, signed by them or by their attorneys or agents, agree shall have jurisdiction in the cause. The County Courts Admiralty Jurisdiction Act, 1868 (c. 71), s. 21. 6. Restrictions on Proceedings in Superior Courts. (a) Generally. 2481. Eor the restrictions by way of costs on actions in the superior court proper to be tried in an inferior court, see tit. Costs, pp. 350—354, and Pt. II. c. 16, p. 1541. (b) Costs and Damages. See tit. Costs, p. 371. 7. Transfer to or from Admiralty Division. (a) Generally. See Pt. II. c. 15, p. 1536. (b) Costs. 2482. If a cause be removed from an inferior court, having jurisdiction in the cause, the costs in the court below shall be costs in the cause. Ord. LXV. r. 3, No. 978. 8. Leave to proceed in Admiralty Division. See Pt. II. c. 16, p. 1541. 9. Arrest. 2483. In an Admiralty cause in a county court, if evidence be given to the satisfaction of the judge, or in his ab- sence the registrar of the court, that it is probable that the vessel or property to which the cause relates will be removed out of the jurisdiction of the court before the plaintiff's claim is satisfied, it shall be lawful' for the said judge, or in his absence for the registrar, to issue a war- rant for the arrest and detention of the said vessel or property, unless or until bail to the amount of the claim made in such cause, and to the reasonable costs of the plaintiff in such cause, be entered into and perfected, according to general orders, by or on behalf of the owner of the vessel or property or his agent, or other the defendant in such cause ; and, ^ except as in this section expressly pro- vided, there shall be no arrest or a et ®'3 tion of a vessel or property in an Adnu- , ralty cause in a county court otherwise - % than in execution. See the County Courts Admiralty Jurisdiction Act, 1868 (o. 71), s 22. ' 2483a. Semble, where a vessel is already under the arrest of the High Court oi Admiralty, it is not necessary to arrest her in actions instituted in an Admiralty PRACTICE. Pt. IV. Inferior Courts. 1707 County Court. The Turliani, 2 Asp. N.S. 603. 2484. A vessel under arrest of the Court of Admiralty having been arrested in an Admiralty County Court, the pos- session fees of the officer of that court ■were disallowed on taxation. The Rio Lima, L. E. 4 A. & E. 157 ; 43 L. J. Adm. 4; 2 Asp. N.S. 143. See also as to proper service of warrant, The Palomares, No. 641«, p. 1528. 10. Evidence. (a) Generally. 2485. Evidence taken in any Admiralty cause before the registrar of a county court, as the judge of a county court or general orders shall direct, shall be re- ceived as evidence in any other county court, saving all just exceptions ; and the registrar of any county court shall, for the purpose of the examination of any witnesses within the district of that court, have all and the like powers and autho- rities of an examiner of the High Court of Admiralty of England, and evidence taken by him in that capacity shall be received as evidence in the High Court of Admiralty of England, saving all just exceptions. The County Courts Admi- ralty Jurisdiction Act, 1868 (c. 71), s. 20. (b) In Shorthand. 2486. In every Admiralty cause, where there is any prospect of an appeal, notes of the evidence in the county court should be taken by some reporter duly appointed. The Busy Bee, L. E. 3 A. & E. 527. 11. Sale. 2487. For the execution of any decree or order of a county court in an Admiralty cause the court may order, and the regis- trar on such order may seal and issue, and any officer of the court may execute, process according to general orders ; pro- vided that where under such process a vessel or property would or might be sold, then, if the owner desires the sale to be conducted in the High Court of Ad- miralty instead of the county court, he shall be entitled, on security for costs being first given, and subject to other pro- visions in general orders, to obtain an order of the county court for transfer of the proceedings for sale, with or without (as the judge of the county court thinks fit) the transfer of the subsequent pro- ceedings in the cause, to the High Court of Admiralty, which court shall have jurisdiction accordingly, see the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), s. 23. 2488. A solicitor desiring that the sale of any vessel or property should be con- ducted in the High Court of Justice, may at any time after judgment give security to the amount of £10, and deliver to the registrar an application for an order for the transfer of the proceedings for sale to the said court. The County Court Eules, 1875, Ord. XXXin. r. 30. 2489. The registrar shall transmit such application to the judge for his order thereon, if the court be not sitting, and shall in any case certify on the applica- tion that the security for costs has been given. Ibid. r. 31. 12. Decrees and Orders. 2490. Such decrees and orders of county courts in Admiralty causes as general orders direct shall be registered with the registrar of county court judgments in London as general orders direct. See the County Courts Admiralty Jurisdiction Act, 1868 (c. 71), s. 24. 13. Process. 2491. The decree of the court in an Admiralty cause shall be enforced against the person summoned as defendant like decrees of the court in ordinary civil causes, except as therein otherwise pro- vided. Ibid. s. 12. 14. Costs. 2492. As to a scale of costs in proceed- ings in Admiralty County Courts being prescribed by general orders, Ibid. s. 18. 2493. As to the court fees in Admiralty actions, see the Treasury Order; as to court fees, of October, 1875, Sched. B. Pt. IV. 2493a. As to costs in Admiralty actions; see County Court Eules of 1876, Ord. XXXYI. 15. Appeals. (a) Generally. See tit. Appeals, pp. 13, 56, and ibid. in Addenda ; as to practice in such ap- peals, Ibid. p. 56, and ibid, in Addenda. (b) Evidence. Ibid. c. 14, p. 56, and ibid, in Addenda. 5 k2 1708 PRACTICE. Pt. IV. Inferior Courts. (c) Sale. See tit. Appeals, p. 56. (d) Security for Casts. See tit. Costs, p. 369. (e) Costs. Ibid. p. 397. 4. Sheriff's Court of City of London.* 2494. The City of London Court has the same jurisdiction as an Admiralty County Court. ' See the County Courts Admiralty Jurisdiction Acts, 1868 (c. 71), B. 2 ; Order in Council of 14 January, 1869; Allen v. Garbutt, 6 Q. B. D. .165 ; 50 L. J. 0. L. 141 ; and Eoscoe's Adm. Practice, 2nd ed. p. 113. 2495. As to appeals from the City of London Court to the Prohate, Divorce and Admiralty Division, and the practice on such appeals, see tit. Appeals, pp. 13, 56 6. The Liverpool Court of Pas- sage. 2496. As to. the Liverpool Court of Passage having the same jurisdiction as the Liverpool Admiralty County Court, see tit. Jukisdiction, p. 681. 2497. As to its practice, procedure and forms heing the same as those of the High Court, Ibid. 2498. As to appeals from the Liverpool Court of Passage to the P. D. & A. Div., see Ord. LIX. r. 4, No. 887, and tit. Appeals, pp. 15, 57, and Ibid, in Addenda. 2499. As to the necessity for security for costs being given before lodging the instrument of appeal, in order to the ap- peal being entertained, see The Ganges,!) P. D. 247 ; The Forest Queen, L. E. 3 A. & E. 299. 2499a. As to the jurisdiction of county courts generally and in claims for salvage, see tit. Jurisdiction, p. 682. 2499J. As to restrictions on actions in superior courts, seePt. II. p. 1541 ; as to the transfer of actions to and from superior and inferior courts, Ibid. p.. 1536 ; and as to leave to proceed in the superior court, Rid. p. 1541. 2499c. As to costs in this court, see Eules of 8th February, 1869. 6. County Courts. 1. Generally. \ 2500, For provisions relating to the general procedure and practipe in county courts, see the County Courts Act, 1846 (c. 95); 19 &-20 Vict. o. 108; 29 & 30 Vict. c. 44; 30 & 31 Vict. c. 142; and the County Courts Act, 1875 (c. 50); and for further powers to make rules of practice for county courts (extending sect. 91 of Judicature Act, 1873, see the Supreme Court of Judicature Act, 1881 (c. 68), s. 27. 2500a. For the rules and orders made under such powers, see the County Court Eules, 1886, with forms and scales of costs and fees. 2. Jurisdiction. See tit. Jurisdiction, Pt. I. -p. 682. 3. Assessors. 2501. In any action or proceeding the judge may, if he thinks fit, on the appli- cation of either party, summon to his assistance, in manner prescribed by rules of court, one or more persons of skill and experience in the matter, who may he willing to act as assessors, and their re- muneration shall be prescribed by rules of court, and shall be costs in the cause unless otherwise ordered ; but where any person is proposed. to be summoned as assessor, objection to him, either per- sonally or in respect of his qualification, may be taken by either party in manner prescribed by rules of court. See the County Courts Act, 1875 (c. 50), s. 5 ; and as to their appointment and removal, see County Court Eules, 1886, Ord. XXI. p. 106. 4. Costs in Proceedings remitted from Superior Court. See tit. Costs, p. 353. * (717) As to the boundaries of the court's Admiralty jurisdiction, see Order in Council of 14 January, 1869. (718) The practice of the court in the Ad- miralty branch of its jurisdiction is the same as in other Admiralty County Courts, t .(719) As to county courts, their juris- diction generally and concurrently with the Queen's Bench Division over cases of tort and contract embracing cases of collision, necessaries, repairs, supplies, and salvage, see tit. Jurisdiction, p. 682. PRACTICE. Pt. IV. Inferior Courts. 1709 7. Magistrates. 1. Generally. 2502. When any district within which any court or magistrate has jurisdiction, is situate on the coast of any sea, or abutting on or projecting into any "bay, channel, lake, river, or other navigable water, every such court or functionary has jurisdiction over any ship or boat being on, lying or passing off such coast, or in or near such bay, channel, lake, river, or navigable water, and over all persons on board belonging thereto, as if such ship, boat, or persons were within the limits of the original jurisdiction of such court or functionary. See the M. S. Act, 1854 (c. 104), s. 521. 2. Collision. 2503. As to the powers and jurisdiction of magistrates in respect of damage not exceeding £50, by any vessel or float of timber, to any harbour, dock, pier, quay, or works connected therewith, and in dockyard ports, and also in the Mersey, see tit. Collision, p. 199. 3. Salvage. (a) Generally.* 2504. As to the powers and jurisdic- tion of magistrates in reference to salvage disputes where the amount claimed does not exceed £200, and where the value of the property salved does not exceed £1,000, see tit. Jukisdiction, p. 682, and Ibid, in Addenda. 2505. One of her Majesty's principal secretaries of state, or in Ireland the lord lieutenant or other chief governor, may appoint a rota of justices for anyborougn or county to have jurisdiction in salvage cases. When no such rota is appointed the salvors by writing addressed to the justice's clerk may name one justice, and the owner of the property saved may name the other. If either party fails to name a justice in a reasonable time, the case may be tried by two or more justices at petty sessions. See M. S. Act Amend- ment Act, 1862 (c. 63), s. 49. 2505a. Any stipendiary magistrate and any county court judge in England, the sheriff or sheriff substitute of any county in Scotland, and in Ireland the recorder of any borough or chairman of quarter sessions, may exercise the same jurisdic- tion as is given to two justices. Ibid. 2506. One of her Majesty's secre- taries of state may determine a scale of costs to be awarded in salvage cases by such justices or court. AH* the other pro- visions of the principal act as to sum- mary proceedings in salvage cases and the prevention of unnecessary appeals thereon extend to all such proceedings, whether under the principal act, this act, or both acts. Ibid., and M. S. Act, 1854 (c. 104), s. 519. 2507. Every dispute with respect to salvage may be heard on the application of 'either the salvor or the owner of the property salved, or their respective agents. See M. S. Act, 1854 (c. 104), s. 460. 2508. When any dispute as to salvage is referred to the arbitration of two jus- tices, they may determine the same, with the assistance of a person conversant with maritime affairs as assessor, or ap- point some such person to decide as um- pire ; and such justices or their umpire shall make an award as to the salvage payable, within the following times, viz.: — the justices within forty -eight hours after such dispute has been referred to them, and the umpire within forty- eight hours after his .appointment, but with power to both justices or umpire by writing under their hands to extend the time. /Serf. s. 461. See also The Adolphe, 2 (Irish) Jur. N.8. 285. 2509. Every assessor and umpire so appointed is to be paid such sum not exceeding £5 as the Board of Trade may direct ; and all costs of such arbitration, including such payments, shall be paid by the parties as the justices or umpire may direct. See the M. S. Act, 1854 (c. 104), s. 462. 2510. The justices or umpire may call for the production of documents in the power of either party, and examine the parties or their witnesses on oath, and administer the necessary oaths. Ibid. s. 463. 2510a. As to the mode of obtaining a valuation of the salved property by a * (720) It is the duty of the magistrates or their clerk to cause a correct copy of the evi- dence to be taken down at the time it is given, in case of appeal, and it is the duty of the receiver of wreok to oall the attention of the magistrates to this requirement. See Board ol Trade Instructions to Beceivers and Officers of Customs and Coastguard, as to "Wreck and Salvage, anno 1886, p. 34. 1710 PRACTICE. Pt, IV. Inferior Courts. receiver of wreck for the purpose of such, proceedings, see Part II. c. 44, p. 1672. 2511. In an original proceeding in the Admiralty Court for salvage, in which an award has heen made by a magistrate, qumre, is not the owner, not appealing from the award, though refusing to pay the sum awarded, bound by the award ? The Hector, 3 Hagg. 93. 2511«. £60 was awarded by magis- trates. The owners did not appeal, but refused to pay, and tendered £35 10s. in lieu thereof. On an original proceeding for salvage in the Admiralty Court, £60 awarded, with costs of salvors. Ibid. 2512. £120 and expenses awarded. The owner refused to pay the amount, and the salvors instituted, an action in the Court of Admiralty. The same amount of salvage and expenses decreed, with costs. The Industry, 3 Hagg. 203. 2512a. As to the payment of the sal- vage awarded to the receiver of -wreck for distribution, see M. S. Act, 1854 (c. 104), ss. 466, 467. 2313. A first set of salvors who, while in possession, were assisted in the service by a second set of salvors, held, neverthe- less, to have a primary interest, and therefore a right to choose their own jurisdiction (viz. whether to proceed for an award by magistrates or by an action in the Court of Admiralty). They having elected to proceed before magistrates, the second salvors, who instituted proceed- ings in the Admiralty Court, held to have acted improperly in so doing, and in not intervening in the proceedings before the magistrates as their proper course. Quaere, if parties have equal rights, would a resort to the subordinate jurisdiction, when objected to, be ( proper ? The Eu- gene, 3 Hagg. 159, 160. (b) Costs and Damages. 2514. A salvage service took place on the high seas, and the case was heard by consent before two justices of the peace, who awarded £53. The salvors subse- quently entered an action in the High Court of Admiralty, and arrested the vessel. The owners tendered the £53, which, after the vessel had been for some time under arrest, was accepted. Held, that the owners were entitled to costs and damages. The Nautilus, Swa- bey, 105 ; and see also tit. Costs, p. 371. 2514a. On appeal, prior to the M. S. Act, 1854 (c. 104), from an award of a magis- trate in a suit for wages, objections to the jurisdiction of the magistrate over- ruled as urged too late. Held, that they should have been urged under protest before the magistrate. The Minerva, 1 Hagg. 58. 25146. The award of magistrates _ in cases of seamen's wages not exceeding £50 is final. See M. S. Act, 1854 (c. 104), s. 188. 4. Seamen's Wages. See tit. Wages, c. 2. 5. Wreck. See tit. Jurisdiction, p. 683, and tit. Wreck. 6. Powers for enforcing Payment. 2515. In all cases where any court, justices, ormagistrate, have power to make an order for payment of any seamen's wages, penalties, or other monies, then, if the party so directed to pay the same is the master or owner of a ship, and the same is not paid as prescribed in the order, such functionary may, in addition to his other powers of compelling pay- ment, direct the amount to be levied by distress or poinding and sale of the ship, her tackle, furniture, and apparel. See M. S. Act, 1854 (c. 104), s. 523. 2516. Service of any summons or other matter in any legal proceeding under this act shall be good service, if made per- sonally on the person to be served, or at his last place of abode, or if made by leaving such summons for him on board any ship to which he ma3' belong, with the person being or appearing to be in command or charge of sxich ship. Ibid. s. 522. • 2517. No order for the payment of money shall be made under this act in any summary _ proceeding instituted in the United Kingdom, unless such pro- ceeding is commenced within six months after the cause of complaint arises ; or, if both or either of the parties happen during such time to be out of the United Kingdom, unless the same is commenced within six months after they both first happen to arrive or to be at one time within the same. Ibid. s. 525. 2518. And no such order for payment of money shall be made in any summary proceeding instituted in any British pos- session, unless such proceeding is s -«ijm- menced within the same time with, how^ ever, a similar qualification. Ibid. \i 2519. And no provision contained in / PRACTICE. Pt. IV. Inferior Courts. 1711 any other act or ordinance for limiting the time for summary proceedings shall affect any summary proceeding under this act Ibid. 2520. A distress for seamen's wages cannot be levied while the ship is under arrest of the Court of Admiralty. The Westmoreland, 4 Notes of Cases, 173. 7. Punishment of Offenders and Recovery of Penalties. See tit. Owneks, Pt. II. p. 1254, and tit. Seamen, Pt. V. 8. Fees. 2521. As to the fees in salvage cases to assessors and umpires, to clerks of justices, to witnesses and to practitioners, seeMaude&Pollock onMerc. Ship. (4th ed. by Pollock & Bruce), vol. 2, p. ceccxxxvi. ; Eoscoe's Adm. Practice, 2nd ed. p. 387 ; and Board of Trade Instructions as to Wreck and Salvage, anno 1886, p. 35. See also Nos. 2506 and 2509, supra. 9. Appeals. 2522. As to appeals from awards of magistrates to the Probate, Divorce and Admiralty Division, see Ord. LIX. r. 4, No. 887, and tit. Appeals, p. 58, and Ibid, in Addenda. 8. Vice -Admiralty Courts. 1. Generally.' 11, 2523. As to Vice-Admiralty Courts generally, their jurisdiction and powers, see tit. Jurisdiction, pp. 686 — 689. 2523a. As to the concurrent jurisdiction with such courts of the Admiralty divi- sion or High Court of Admiralty, Ibid. p. 689. 2524. As to how far the decree of a Vice-Admiralty Court is conclusive, and as to the enforcing of the decrees of such court in the Court of Admiralty, Ibid. p. 662. 2525. As to prohibition to such courts, Ibid. p. 689. 2526. As to the power of appointment of the judges and officers of Vice-Ad- miralty Courts, Ibid. p. 686. 2527. As to the practitioners in such courts, Ibid. p. 688. 2528. Por the rules of practice now in force in Vice-Admiralty Courts, see Pules as to same established by Order in Council of Aug. 23, 1883. 2529. For forms of the different writs, warrants, pleadings, orders, decrees, and other instruments and minutes to be used in the Vice-Admiralty Courts, see Ap- pendix I. to Ibid. Nos. 1 — 71. 2530. In all cases not provided for in the Vice- Admiralty Court Eules of 1883, the practice of the Admiralty Division of the High Court is to be followed. Ibid. 207. 2531. When a proctor in a Vice-Ad- miralty Court is called upon to produce a proxy under sect. 40 of the rules and regulations (now annulled) made pursuant to 2 Will. 4, c. 51, s. 1, and Order in Council of June 27, 1 832, and produces a proxy on the face of it duly signed and sealed, the onus probandi Lies upon the party impeaching its authenticity. The Euxine, L. E. 4 P. C. 8 ; 41 L. J. Adm. P. C. 17; 1 Asp. P. C. N.S. 155. 2. Assessors. 2532. See Eules of Practice for Vice- Admiralty Courts under Order in Council of 23 August, 1883, Nos. 106, 107. 3. Registrars and Officers. 2533. The registrar of a Vice-Admiralty Court held not responsible for money transmitted to England on an appeal, it having been sent under proper precau- tions, and in the usual course of business, to be deposited in the Bank of England, and afterwards lost by the failure of the consignee. The Prima Vera, Edwards, 23. 4. Caveats.^ 2534. See Eules of Practice for Vice- Admiralty Courts under Order in Council of 23 August, 1883, Nos. 159—167. 5. Payments into and out of Court. 2535. /W.Nos. 156, 157, 158, and 171. *(721) Theregulations as to Vice-Admiralty Courts under Order in Council of 27th June, 1832 ; the 25th section of rules under Order in Council of 25th June, 1851 ; additional rules under Order in Council of 6th July, 1859; and those rules as extended to other Vice- Admiralty Courts by subsequent Orders in Council, are annulled by Eules of Practice for Vice- Admiralty Courts made under Order in Council of August, 1883; and see note to The Albion, 1 Asp. N.S. 481. t (722) These relate to caveat payments, caveat warrants, and caveat releases ; and are similar to the practice in regard thereto in the High Court. 1712 PRACTICE. Pt. IV. Inferior Courts. 6. Actions. 2536. As to actions being of two kinds, in rem and in personam ; as to actions for condemnation of property or for forfeiture being instituted in the name of the Crown ; and as to the title and numbering of actions, see Eules of Practice for Vice- Admiralty Courts under Order in Council of 23 August, 1883, Nos. 2—4. 7. Parlies. 2537. As to any number of parties in- terested being joined in the same action ; as to the power of the judge to direct persons to be made parties and give directions thereon ; and as to underwriters or insurers being deemed interested par- ties, Ibid. Nos.. 23— 25. 8. Writs of Summons and Warrants* 2538. See, as to practice and forms, Ibid. Nos. 5—18, and Nos. 28—38. 9. Appearance, Bail, and Release.^ 2539. See, as to practice and forms, Ibid. Nos. 19—22, and 39—53. 10. Consolidation of Actions. 2540. Ibid. Nos. 27, 28. 11. Interlocutory Proceedings. (a) Motions. 2541. Ibid. Nos. 74—78. (b) Special Case. 2542. Ibid. Nos. 70—73. 12. Discontinuance. 2543. Ibid. No. 148. 13. Tenders. 2544. Hid. Nos. 79, 81. 14. Preliminary Acts. 2545. Vice- Admiralty Courts should use the form of Preliminary Acts in use in the Admiralty Division of the High Court of Justice. The Norma, 3 Asp. N.S. 272 ; 35 L. J. P. C. 418. Por rules as to, and forms of, Preliminary Act, Ibid. No. 54. 15. Pleadings. 2546. Actions are to be heard without pleadings unless the judge shall other- wise order. The statement, of claim is called the petition, and the statement of defence the answer. Each pleading is to be filed, the petition within one week from the order for pleadings, and the other pleadings within one week from the filing of the previous pleadings. Sets-off or counterclaims may be pleaded, and powers of amendment are given. Ibid. Nos. 55 — 61. 16. Proofs. (a) Generally. 2547. Ibid. Nos. 82—86. (b) Examination of Witnesses in Court. 2547a. In collision cases in the Vice- Admiralty Courts witnesses should as far as possible be examined vivd voce before the court, and not upon written inter- rogatories before an officer of the court prior to the hearing. The Norma, 35 L. J. P. C. 418. (c) Examination of Witnesses before Trial.\ 2548. See Eules of Practice of 1883, Nos. 96—103. (d) Interrogatories, Discovery, and In- spection. 2549. The judge may order interroga- tories to be answered, or discovery as to documents, and notices to admit docu- ments or facts, may be filed. Ibid. Nos. 62—67. (e) Affidavits.% 2550. Ibid. Nos. 89—95. 2551 (f) Subpoenas. Ibid. Nos. 168—170. (g) Oaths. 2552. Ibid. Nos. 87, 88. 17. Printing. 2553. The judge may order the whole or part of the pleadings or written proofs . to be printed. Ibid. Nos. 104, 105. * (723) The rules on this head are very similar to those now in force in the High Court. t (724} The rules on this head are similar to those in force in the High Court ; but the judge has power to accept one' surety as suffi- cient, and one or more bonds may be filed. % (725) These rules are similar to those in the High Court, but the only parties to take the evidence are a judge, registrar or com- missioner. The judge may order the evi- dence to be taken in shorthand. i § (726) These are similar formal regula- tions to those in the High Court. PRACTICE. Pt. IV. Inferior Courts. 1713 18. Trial* 2554. Ibid. Nos. 108—117. 19. Judgments and Orders. 2555. For forms, Ibid. App. I. Nos. 52, 53, 63, 65, 68, 70. 20. References.^ 2556. Ibid, rules, Nos. 118—125. 21. Writs of Execution. 26b1. As to writs of attachment and execution, Ibid. Nos. 172 — 174. 22. Appraisement and Sale.\ 2558. Ibid. Nos. 138—147. 23. Actions of Salvage. (a) Generally. 2559. As to the jurisdiction of Vice- Admiralty Courts in actions of salvage, see tit. Jurisdiction, p. 688. (b) By H.M.'s Ships. 2560. As to no claim being allowed in respect of loss or damage to H.M.'s ships, their tackle or stores, or for the use thereof in rendering salvage services, see M. S. Act, 1854 (c. 104), s. 498, and tit. Salvage, c. 5. (c) By Officers and Crews of H.M.'s Ships Abroad. 2561. As to proceedings in Vice-Ad- miralty Courts in cases of salvage rendered by H.M.'s ships out of the United Kingdom, and for seas adjoining, see M. S. Act, 1854 (c. 104), ss. 486—497, and tit. Salvage, c. 5. 2562. As to the delivery in such cases to the judge of the Vice-Admiralty Courts by the salvors, and also by the master or officer in charge of the salved property of a statement on oath relating to the salvage service, and containing the par- ticulars therein mentioned, Ibid. 2563. As to the power of the judge if either of such statements are not de- livered to him within the time required to proceed ex parte, Ibid. 2564. As to the judge not being at liberty to require the cargo to be un- laden, Ibid. 2565. As to the bond to be thereupon executed to answer the claim for salvage, and the fixing of the amount thereof by the judge, Ibid. 2566. As to the notice of the sum so fixed being sent by the judge to the salvor and master respectively, Ibid. 2567. As to the execution of the bond before the judge, and the attestation thereof by him, Ibid. 2568. As to the right of detention of the property salved ceasing on the de- livery of the bond to the master, unless the property is owned by persons domi- ciled out of her Majesty's dominions, in which case before such right ceases the master must procure sufficient security to the satisfaction of the judge for the per- formance of the conditions of the bond, and place the bond in the custody of the judge, or, if the salvor desires it, with some other appointee of his jointly with the judge, Ibid. 2569. As to the transmission by the judge of such statements and documents to the Court of Admiralty of England, if the case is to be adjudicated upon there, or to the Vice-Admiralty Court of the place if it is to be adjudicated upon there, Ibid. 2570. As to the bond bindingthe owners of ship, freight and cargo, and their re- presentatives, for the amount of salvage adjudged, Ibid. 2571. As to the enforcement of the bond and other security, and the powers of the Vice-Admiralty Court in reference thereto, Ibid. 2572. As to the exercise of similar powers by consular officers, Ibid. (d) Agreement to abide Adjudication and pay Salvage. 2573. As to proceedings where other ships besides those of her Majesty are salvors, and, the salvors waiving their lien, the parties enter into a written agreement to abide the decision of a Vice-Admiralty Court, or the Court of" Admiralty, and to give security to answer the salvage awarded ; as to the agreement bindingthe parties and theproperty salved; _ * (727) Only one counsel is heard on each side except by permission of the court. t(728) The rules on this head are similar to those of the High Court. Notice of obj ection must he filed within two weeks, otherwise the report stands confirmed. % (729) The rules on this head are similar to those in the High Court. 1714 PRACTICE. Pt. IV. Inferior Courts. as to the statements to be made on both sides, and the transmission of the agree- ment and documents to the Vice-Admi- ralty Court, see M. S. Act, 1854 (c. 104), s. 497, and tit. Salvage, c. 5. 24. Actions of Apportionment of Salvage. 2574. As to the jurisdiction of Vice- Admiralty Courts as to apportionment of salvage, Ibid. s. 498. 2575. As to the powers of such courts to appoint any person to carry the appor- tionment into effect, and to compel the person in control of the salvage awarded to distribute it or bring it into court, and issue process accordingly, Ibid. 25. Other Actions. 2576. As to the jurisdiction of Vice- Admiralty Courts in other actions, see tit. Jtjbisdiction, p. 688. 26. Costs and Fees. (a) Generally. 2577. See Eules of Practice of 1883, Nos. 126, 132. 2578. For the court assessors, commis- sioners, and marshal's fees to be taken in the Vice-Admiralty Courts, Ibid. App. II.— VI. 2579. For the counsel's fees in the Vice-Admiralty Courts, Ibid. App. VIII. 2580. For the solicitors' costs in the Vice-Admiralty Courts, Ibid. App. VII. 2581. The allowance to witnesses are the same as in the High Court. Ibid. (b) Security. 2582. Ibid. No. 128. (c) Taxation. 2583. Ibid. Nos. 133—137. 27. Appeals. (a) Generally. 2584. Appeals from Vice-Admiralty Courts lie to her Majesty in Council. See the Vice- Admiralty Courts Act, 1863 (c. 24), s. 22. 2585. No appeal from a decree or order of a Vice-Admiralty Court is al- lowed, except by permission of the judge, unle"ss it has the force of a final sentence Ibid. 2586* A party desiring to appeal shall, within one month from the date of the decree or order appealed from, file a notice of appeal (a form of which is therein provided), and give bail in such amount not exceeding £300 as the judge may order to answer the costs of the appeal. See Eules of Practice of 1883, No. 150. 2587. As to such appeals including eases of collision and salvage, see tit. Appeals, p. 7. 2588. As to the practice in appeals from Admiralty Courts to the Privy Council, see tit. Appeals, pp. 30 — 43. But see No. 2586, supra. (b) From Taxation of Costs and Charges. 2589. As to appeals from taxation of costs and charges in Vice -Admiralty Courts, see tit. Appeals, p. 13. (c) Stay. 2590. Notwithstanding the filing of the notice of appeal, the judge may, before service of inhibition, proceed to carry into effect the decree appealed from if the respondent gives bail to abide the appeal and costs. See Eules of Practice of 1883, No. 15L| 2591. The appellant is to cause the registrar to be served with inhibition, citation, and monition for process £as to which, see tit. Appeals, p. 41), and on service of the inhibition and citation all proceedings are to be stayed. Ibid. Nos. 152, 153.f (d) Costs. 2592. See tit. Costs, p. 391. * (730) This is an important alteration made subsequently to tit. Appeals, pp. 32 and 33, passing through the press. Pre- viously the Vice- Admiralty Courts followed the practice in the High Court of Admiralty of England, by which it was required that an appeal apud acta or in scriptis (as to which see p, 34, n.) should be interposed within fifteen days from the decree (see pp. 32 and 33 above referred to). That is now altered by the rule in the text requiring a notice of appeal to be eiven within one month. t (731) TKe above rules, Nos. 150-153, relate to the proceedings to be taken in the Vice-Admiralty Courts in reference to appeals, and do not affect the statutory regu- lations in regard to the commencement and prosecution of the appeal in the Appellate Court (the Privy Council). As to these, see tit. Appeals, p. 33, Nos. 334, 335. ( 1715 ) REGISTRAR AND MERCHANTS. Paet I. — Accounts. Part II.— : Measube op Damaqes. Part I -ACCOUNTS. 1. Generally p. 1716 2. Interest 1716 3. In Actions of Bottomry. 1. Generally 1717 2. The Voyage 1718 3. Premium 1719 4. Interest 1720 5. Commission 1721 6. Disbursements. (a) Generally 1722 (b) Repairs 1723 (e) Wages and Victualling 1723 (d) Insurance 1724 (e) General Average 1724 (f) Costs Abroad 1724 7. Exchange 1724 4. In Actions for Freight 1724 5. In Actions for Demurrage 1724 6. In Actions of Account between Part Owners 1724 7. In Actions of Restraint 1725 8. In Actions of Limitation of Lia- bility of Owners. 1. Generally 1726 2. Interest 1726 9. In Actions of Marine Insurance. See tit. "Maeine Insurance," p. 841. 10. In Actions of Masters' Accounts. 1. Generally , 1726 2. Interest 1729 11. In Actions of Mortgage. 1. Generally , 1729 2. Interest 1730 12. In Actions for Necessaries, Re- pairs or Supplies. 1. Generally ., 1731 2. Interest 1731 13. In Actions of Possession. 1. Generally , 1731 2. Ameliorations 1732 14. In Actions of Salvage. 1. Generally , 1732 2. Losses or Damage in rendering Sal- vage Assistance , 1732 3. Interest 1734 15. In Actions of Wages p. 1734 16. Claims in respect of Volunteers into the Navy. See tit. " Peac- tice," Pt. III. c. 19, p. 1702. 17. Claims of Officers and Crews of Queen's Ships for Distribution of Salvage. Ibid. c. 17, p. 1694. 18. Practice on References and Ob- jections to Reports. Ibid. Pt. II. 0. 40, pp. 1648—1655. 19. Registrar and Assistant Regis- trar. Ibid. Pt. I. p. 1470. 20. Evidence on References. See tit. "Evidence," p. 430. 21. Costs of References. See tit. " Costs," p. 358. 22. Special Referees and Arbitra- tions. See tit. " Pbactice," Pt. II. oc. 42, 43, pp. 1658, 1659. Part II.— MEASURE OF DAMAGES. 1. Generally. 1. In Contract 1735 2. In Tort 1738 3. Remoteness of Damages 1738 2. In Actions of Damage to Cargo . . 1. Generally 1738 2. Loss of Market 1740 3. Interest 1742 8. In Actions for Damage by Colli- sion. 1. Generally 1742 2. Vessel lost 1744 3. Vessel repaired 1746 4. Expenses superintending Repairs . . 1749 5. Repairs, where justifiable 1750 6. Cargo lost 1750 7. Cargo damaged 1752 8. Interest 1752 9. Clothes lost 1752 10. Commission 1753 11. Discount 1753 12. Agency 1753 1716 REGISTRAR AND MERCHANTS. Pt. I. Accounts. 3. In Actions for Damage by Colli- sion — continued. 13. Consequential Loss. (a) Generally p. 1753 (b) Abandonment of Vessel after Collision 1 755 (c) Losses or Damages after Collision 1757 (d) Raising Vessel 1759 (e) Freight 1761 (f) Demurrage 1763 (g) Cargo. (aa) Generally 1767 (bb) Lots of Market 1767 (oc) Fish 1767 (h) Salvage 1768 (i) Towage 1769 (j) Costs of Salvage Action 1770 4. For Breaches of Charters 1770 5. For Loss of Life from Collision.. 1772 Part I.— ACCOUNTS. 1. Generally.* 1. In Admiralty proceedings, -when a ship is arrested on a specific demand before a reference of accounts to the registrar and merchants can be directed, it must be shown to the court that some- thing is due, although the actual amount may properly be the subject of inquiry. The practice differs from a reference by a court of equity on an unsettled account, where the court directs an account to be taken, leaving it to be shown by the result on which side the balance lies. The West Friesland, otherwise Twentje, 13 Moore, P. 0. C. 185 ; Swabey, 459. 2. "When the evidence on a question of damages is nicely balanced, neither the court nor the registrar and merchants are justified in dividing the loss between each party, but judgntent must be given according to the balance of evidence, bearing in mind on whose side the burthen of proof lies. The Agnes, No. 948, April 16, 1862 ; The Egyptian, No. 1321, July 15, 1864. " 2a. A claim by the owners of a damaged 6. For Personal Injuries from Colli- sion. 1. Loss of Life ■ p. 1774 2. Personal Injury . 1774 7. For Injuries while rendering Sal- vage Assistance. SeePt. I. c. 10, jp. 1732. 8. Costs and Damages. 1. Generally 1775 2. Value of Ship 1775 3. Cargo 1776 4. Freight 1776 5. Interest 1776 6. Demurrage 1776 9. French Law 1776 vessel for loss sustained, estimated mode- rately to avoid litigation, having been re- jected, and the matter afterwards referred to theregistrar and merchants, the owners held not bound by their original estimate, nor barred of their right to prove an actual loss greater than that estimate. The Two Sisters, 1 Spinks' Eccl. and Adm. Eep. 99. 3. As to the practice in regard to references to the registrar and merchants, see tit. Practice, Pt. II. c. 40, p. 1648. 2. Interest.! 4. It is not the practice of the Court of Admiralty, as it is of the Court of Chan- cery, to order the money of suitors to be put out at interest, except upon their joint application and consent. The Princessa Zavala and La Heine Elizabeth, 2 C. Bob. . 31, 49. 4a. The amount of damages having been paid by order of the eourt into the registry, the party finally adjudged to receive the same was not allowed interest from the date of such payment into court, * (1) The cases in the notes to this title, and to which the initials B,. & M. are added, are cases determined by the registrar and merchants, but not reviewed by the court. t (2) The usual rate of interest allowed is four per cent. (2a) The court on being applied to will direct money paid into the registry to be in- vested in the purchase of Exchequer bills. (3) Interest on money paid into court in lieu of bail in a cross actfon not allowed to the defendant in the cross action. The Chieftain, 30 Dec. 1854. E. & M. (3a) All acts relating to usury are repealed from the 10th of Aug. 1854. See 17 & 18 Vict. c. 90. (4) As to interest due for the non- performance or delay in the performance of a contract, and as to the law of the place of contract, or of payment as governing the rules as to interest, see 4 Phillimore's Inter- national Law, 513. (4a) Interest at the rate of 6 per cent, is in collision actions allowed in the American Admiralty Courts. Dwyer v. The National Steamship Co., 4 Asp. 28 ; The Belgenland, 13 April, 1885, Supreme Court; The Rhode Island, 2 Blatch. Circ. Ct. 113. [American.] REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1717 as he might have applied to the court to have the money invested. The North American, 1 Lushington, 79 ; 5 Jur. N.S. 659. 5. In consideration of a stay of execu- tion the amount due was ordered to be paid into court, and invested in exchequer bills, pending an appeal. The Cybele, 3 Asp. N.S. 478 ; 37 L. T. N.S. 165. 5a. On an account settled, interest form- ing part of that account, becomes prin- cipal, and bears interest as part of the principal, though ordinarily interest upon interest is not allowable. The Dundee, 2 Hagg. 143. 6. Interest on costs runs from the date of the registrar's allocatur of taxation. See Shroederv. Clough, 46 L. J. 0. P. 365 ; The Jones Brothers, 3 Asp. N.S. 478 ; 37 L. T. N.S. 164. 6a. The rate of interest allowed in New South "Wales in the absence of any special contract is 8 per cent. Gordon v. Scott, 12 Moore, P. 0. C. 1. 7. Interest upon interest decreed where the decree had been made up, but pay- ment delayed by appeal. Registrar's report thereon confirmed, deducting two months for convenience of payment, and confirmation of former report on first de- cree. The Driver, 5 0. Eob. 145. 7a. Prize agents are subject to the order of the Prize Court for interest of money detained in their hands. Interest decreed against them accordingly, and expenses. The Brig Louis, 5 0. Eob. 146. 8. See, as to interest in bottomry ac- tions, c. 3, s. 4, p. 1720 ; in actions of masters' aocounts, c. 6, s. 2, p. 1729; in actions of limitation of liability, c. 8, s. 2, p. 1726; in actions of mortgage, c. 11, s. 2, p. 1730 ; in actions of necessaries, repairs, and supplies, c. 12, s. 2, p. 1731 ; in actions of salvage, c. 14, s. 3, p. 1734; in actions of damage to cargo, p. 1742; in actions of damage by collision, Pt. II. c. 3, s. 8, p. 1752 ; and on costs and damages, ibid. c. 8, s. 5, p. 1776. 3. In Actions of Bottomry.* 1 . Generally. 9. A decree pronouncing for the vali- dity of a bottomry bond is conclusive as to the validity of the bond, and unless it is appealed from the bond must be con- sidered as valid. At the same time it determines nothing with respect to the amount of money the bondholder is en- titled to recover from the owners of the vessel. That is to be ascertained by the subsequent reference to the registrar and merchants. By this mode of proceeding the party promoting the suit obtains at once the realization of his security, whe- ther it be ship, cargo, and freight, or the value of these as represented in the bail, and the party proceeded against is no less benefited in having the real extent of his liability ascertained by persons competent to the investigation, and that at a comparatively small expense. The Catherine, 3 TV. Eob. 3. 9a. In a suit on a bottomry bond, the court, before deciding upon the validity or invalidity of the bond, referred the case to the registrar and meichants, to report, on the whole accounts, whether * f 5) The S. left England on a voyage to S. Whilst on her voyage her owner entered into a charter to the effect that, after the dis- charge of her cargo, the S. should proceed to M., and there load a return cargo, and that the charterer's agents at M. should advance to the master what money he required "for the necessary ordinary disbursements "of the ship there, with interest and cost of insurance to be deducted on settlement of freight. The vessel discharged her cargo at S., where the master, being in want of funds, raised money on bottomry of the ship and freight. Upon the S. arriving at M. it was found she re- quired extensive repairs to be done to her, including a new mast, and to pay for these disbursements the master obtained money of the charterer's agents at M. On the S. arriving in this country .with the return cargo she was proceeded against, and sold to pay prior claims, and the bondholder was held entitled, in part discharge of his bond, to the freight, less the advances at M. for necessary ordinary disbursements and in- surance, and the accounts of such advances were referred to the registrar and merchants to examine and report thereon accordingly. Held by them that the advances to be allowed must be both necessary and ordinary. The Salacia, No. 1251, Nov. 16, 1863. E. & M. (5a) Bepairs to the vessel, including a new mast, approved of by the master at the time, held to be necessary and ordinary disburse- ments within the meaning of the charter. Ibid. (6) Cash advanced to the master (about £45), provisions for the ship (about £150), and charges of hire of coolies (about £12), and of "gharries" or conveyances (about £12), held to be necessary ordinary disburse- ments within the meaning of the charter. Ibid. 1718 REGISTRAR AND MERCHANTS. Ft. I. Accounts. any and what balance was due to the bondholder upon which a bottomry bond could be taken, and any other special matter which might occur to them. The Ocean, 10 Jur. 505 ; 4 Notes of Cases, 410* 10. In questions of accounts in cases of bottomry the onus probandi lies, in the first instance, on the bondholder, and he is bound to show what. he has expended in the service of the ship. He ought to keep regular accounts, and to take regu- lar receipts. The Catherine, 3 W. Eob. 4 ; 5 Notes of Cases, 402. 10a. The court, in making a decree in favour of a bottomry bond, will carefully scrutinize all the accounts, and will re- duce any charge which appears to be unreasonable or exorbitant. The For- ttina, 4 Irish L. T. N:S. 840; 1 Asp. 123. 1 1 . A proper necessity for a bottomry bond being shown, the court will not look narrowly into the charges, or in- vestigate the accounts too rigidly, lest voyages should be defeated by ships being in want of credit in foreign ports. The Calypso, 3 Hagg. 164. lira. The court having pronounced for a bottomry bond, and referred the accounts to the registrar and merchants to examine and report, objection by the bondholder that it was not usual so to refer accounts that had not been exhibited in the cause overruled, the court observing that it was proper the accounts should be au- dited, and that it was open to the bond- holder, if affected by it, to make applica- tion to the court at a future time. The Nelson, 1 Hagg. 181. 12. When the legal effect of a bot- tomry bond is intended to be questioned before the registrar and merchants, it is more convenient that the reference to them should be made under the direc- tions of the court. The Cognac, 2 Hagg. 384. 13. A lender on bottomry is in no case liable to average losses, but is entitled to the whole sum advanced, provided ship and cargo arrive at the port of destination, Walpole v. Ewer, cited in 2 Park on Ins. 565, 898 ; unless a different rule prevails by the usage of trade in a foreign state, see Newman v. Cazalet, therein cited, and tit. Average, p. 95. 14. The value of a hypothecated vessel is her value at the moment of her arrival at her destined port, deteriorated as she may then be from the effects of the voyage, and not her increased value after a con- siderable sum of money has been expended inrepairs. The Hendrica Gazina, 15 Irish Jur. (N.S.) 81. 15. A bottomry bond is prima facie evidence of a debt, but where any im- putation is cast upon the bona fides of the transaction the burden of proof rests on the bottomry holder, and he must produce proper accounts to show the sums he claims to be actually due. The Wakefield, 5 S. C. Jur. 69. 16. Where a bottomry bond is admitted to be drawn in legal form, and entitled to payment, the parties are bound by the terms of the agreement therein, and the court will not refer the matter to the re- gistrar and merchants to make such a deduction on account of the rate of ex- change as is usually made in ordinary cases of mercantile negotiation. Appli- cation for such reference made by the owner rejected, with costs. The Jane Vilet, 2 Hagg. 92.f 17. The validity of a respondentia bond was admitted, and a reference ordered, to the registrar and merchants to decide what amount was payable under it. The registrar and merchants reduced the amount of the bond by lessening the charges in respect of certain metal and felt supplied to the ship, commissions payable to the agents, and the premium on the bond. On objection to the report, held, that it was within the jurisdiction of the registrar and merchants to reduce the amount, since tho defendants were not bound to pay more than was sufficient to pay for things actually necessary for the ship and at a reasonable rate. The Pon- tida, 9 P. D. 102, 177; 5 Asp. 330. 18. Held, also, that the premium on the bond was excessive, and had been rightly reduced, and report confirmed. Ibid. 2. The Voyage. 19. Eepairs and necessaries became necessary in consequence of an accident antecedent to a particular voyage ; but the bond given to meet these expenses was not dated until after the completion of that voyage. Held, that this objection was not fatal, and that the bond was not * (7) The court will order a reference to ascertain and report the actual constituents of a bottomry hen, the validity of which is contested. Furniss v. Brig Magoun, Olcott, Adm. 55. [American.] t (8) By the modern practice such a refer- ence would be ordered as of course. REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1719 invalidated on that account. The Mary Ann, 10 Jur. 256; 4 Notes of Cases, 390. 20. Advances which may become the subject of bottomry must be advances made for the service of the ship during the particular voyage in which she is engaged. A bottomry bond given in a foreign port for payment of advances made for the release of the vessel from arrest,' on account of debts and liabilities of the owner incurred anterior to the voyage in which the vessel was then engaged, or for debts arising from sup- plies and necessaries furnished to other ships though belonging to the same owner, would be held invalid, even though, according to the law of the country where the vessel lay at the time of bottomry, she might have been arrested and sold to discharge those former debts and liabilities. The Osmanli, 3 W. Rob. 211 ; 14 Jur. 93; 7 Notes of Cases, 322. 21. A ship arrived at Malta and was there arrested, under the warrant of a competent court in that island, for debts of the owner incurred, as well on account of the ship herself in former voyages, as for debts incurred on account of other ships engaged in the same trade, and the property of the same owner. In order to obtain her release, and to obtain coals and other necessaries, the master borrowed money on bottomry. Held, that the bond was invalid as to the money borrowed to release the ship, but valid as to the re- mainder. Ibid. 22. Charges upon the unloading of the outward cargo, i. e., damage done to cargo and short delivery of part, are not subjects of bottomry by the master (unless the owner consent thereto), oven though the outward freight was withdrawn by the owner from the disposal of the master so as not to admit of his paying such charges therefrom, though the debts were just debts, and the ship was under charter to proceed on another voyage. Semble, however, such charges would have been allowable if by the law of the port the ship could have been arrested for them. The Edmond, 1 Lushington, 57 ; 2 L. T. N.S. 194 ; 30 L. J. Adm. 128; The Prince George, 4 Moore, P. C. C. 21. 23. The rule derived from The Prince George (4 Moore, P. C. C. 21) with re- spect to items to be allowed in a bottomry bond is, that all expenses incurred in the port where the bond is given relating to the ship or crew, being expenses for which the master or owner of the ship is liable, and being necessary to enable the ship to proceed on her voyage, may be allowed, though including charges con- nected with the outward voyage. The Edmond, 1 Lushington, 211. 24. See further as to the expenses for which bottomry may be resorted to by the master in reference to the voyage, tit. Bottomey, p. 123. 3. Premium* 25. The lender on bottomry takes the risk of the vessel hypothecated effecting her voyage in safety. If she is lost on such voyage, the bond is forfeited there- by. On this account a higher rate of premium than legal interest, called mari- time interest, is allowed, as a sort of pre- tium periculi. The Atlas, 2 Hagg. 52 ; The B odding tons' , Ibid. 425. 26. Three bottomry bonds of the same tenor having been put in suit and their validity admitted, reference ordered to the registrar and merchants to examine the charges, rate of exchange and currency. The Albion, 1 Hagg. 333. 27. The high rate of premium at which money may be lent on bottomry will not affect the validity of a bottomry bond, but is a proper subject for reference to the registrar and merchants. La Ysabel, 1 Dodson, 277 ; The Alexander, Ibid. 279 ; The Nelson, 1 Hagg. 179; The Heart of Oak, 1 W. Rob. 215 ; 1 Notes of Cases, 114 ; The Lord Cochrane, 2 W. Rob. 336 ; 8 Jur. 716; 3 Notes of Cases, 172; The Huntley, 1 Lushington, 24. 28. The court has the power, and has in some few instances exercised it, of re- ducing the amount of maritime premium stipulated for under a bottomry bond ; but it will lean to support the rate of premium agreed for unless excessive. Maritime in- terest at 14 per cent, on a bond, reduced by the registrar and merchants (on refer- * (9) £30 per cent, allowed for bottomry premium from Singapore to London. The General Sale, Jan. 1854. E. & M. (10) Premium on bottomry bond given for money to pay for repairs not allowed against defendants in a cause of damage. The Hope, Nov. 13, 1854; The Diana, July, 1861. E. &M. (11) The court will moderate the premium on a bottomry bond, where the premium is extortionate. The Packet, 3 Mason, 255 ; The Virgin, 8 Pet. 538. [American.] 1720 REGISTRAR AND MERCHANTS. Pt. I. Accounts. ence to them) to 10 per cent., increased afterwards by the court to its original rate of 14 per cent. The Zodiac, 1 Hagg. 326. 29. The court has authority to reduce the premium on a bottomry bond if ex- cessive or fraudulent ; but it -will only exercise this authority on clear and in- disputable cause shown, and with great caution. £20 per cent, charged in a bottomry bond, and disallowed on refer- ence to registrar and merchants, who sub- stituted 12J per cent., allowed by the court, and registrar and merchants' report overruled accordingly. The Cognac, 2 Hagg. 386. 30. In a bottomry bond taken at Cal- cutta, blanks had been left where the rate of premium ought to have been expressed. An affidavit was given in from the notary who drew the bond, and such affidavit stated that the omissions arose from his carelessness, and that £30 per cent, was the rate agreed upon. The court pro- nounced for the bond, with such premium as the registrar should find to have been usual on such risks at the time and place the bond was taken. The Change, Swabey, 240 ; 5 W. E. 547 ; 29 L. T. 147. 31. A premium of 12£ per cent, on bills of exchange, disallowed. Objections to the report thereon, on the ground of such disallowances, overruled, but without costs. The Tartar, 1 Hagg. 14. 32. A bottomry premium of 20 per cent, on a voyage from St. Michael's, in the Azores, to the United Kingdom, was re- duced to 12£ per cent, on the ground that it was considered very extravagant for so short a passage, with the security of a cargo of considerable value. July, 1883. E. & M. Their report was confirmed by the President and afterwards by the Court of Appeal. The Pontida, 9 P. D. 102, 177; 5 Asp. 331. 33. Bottomry bond given at Shields payable at New York. Vessel was com- pelled to put into Plymouth, where the voyage was abandoned. Held, that part of the risk having been incurred the pre- mium could not be severed. Premium at the full rate pronounced for accord- ingly. The Dante, 4 Notes of Cases, 408. 34. But semble, that in the case of a ship not leaving the port in which the bond had been given, or beiDg seized there under an embargo, or of the master while, there changing her destination to abetter market, the bondholder would be simi- larly entitled to payment of his bond, but no risk having been then incurred, no maritime premium would be due. Ibid. 35. A., intending to go a voyage, entered into a bottomry bond, but the ship not going the voyage, but lying all along safe in the port of London, the court decreed the defendant should lose the premium, and accept of his principal with usual interest. Deguilder v. De- piester, 1 Vern. 263. 4. Interest.* 36. Interest is legally due on a bot- tomry bond from the time stipulated for the payment of the bond ; but when the bondholders are resident abroad and have no agent in this country, interest on the bond will not be decreed prior to the arrival of a power of attorney, authorizing the receipt of the principal. The Neiv Brunswick, 1 W. Eob. 28. 37. Interest on a bottomry bond after decree refused, the court observing that interest after judgment was not usually allowed, unless the party who was to pay occasioned unnecessary delay. The Exeter, 1 C. Eob. 173. Semble, overruled by the cases below. 38. A bottomry bond pronounced for, with 4 per cent, interest from the time it became due. The St. Catherine, 3 Hagg. 250. 39. A bottomry bond having been dis- puted and afterwards admitted, but sub- ject to a reference to the registrar and merchants as to account's, disbursements, and rate of premium, objections to their report as to which had been partially admitted and partially overruled ; interest on the bond at 4 per cent, from the time it became payable, pronounced for, with costs. The Cognac, 2 Hagg. 393. 40. The defendants in a bottomry action paid into the registry, by order of the court, a sum of money which proved larger than the amount finally pronounced to be due to the bondholder. The bondholder held, nevertheless, entitled to the full , ordinary interest upon the latter sum from the date of the bond becoming due. The Edmond, 1 Lushington, 211 ; 2 L. T: N.S. 194; 30 L. J. Adm. 128. * (12) In making up the decree, the sum lent and the bottomry mterest are to be con- sidered as the principal, and common interest upon this amount is to be added from the time the bond became due to the time of the decree. The Packet, 3 Mason's Rep. 255. [Ameeioan.] REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1721 41. The rate of interest allowed on a bottomry loan, and on the premium there- on after safe arrival, is 4 per cent, per annum ; and a master has no authority in making a bond to bind the ship-owners or the cargo-owners to the payment of in- terest beyond such amount. The D. II. Bills, 4 Asp. 20. 42. As to interest generally, seep. 1716. 43. In causes of limitation of liability of owners, see p. 1726. 44. In causes of mortgage, see p. 1730. 45. In causes of salvage, see p. 1734. 45a. In causes of damage by collision, see p. 1752. 46. On costs and damages, see p. 1776. 5. Commission.* 47. The largeness of commissions will not invalidate a bottomry bond altogether unless the bond is successfully impeached on the ground of fraud. The Laurel, B. & L. 317 ; 1 Asp. 405 ; 9 L. T. N.8. 457. 48. The custom of a foreign port as to the allowance of a charge like commission deserves attention from the court, but when the custom is established by persons having the greatest interest in making such charges, and especially by a small community, the court will not be ex- clusively guided thereby. The Glen~ manna, 1 Lushington, 123. 49. Semble, on such a question as com- mission, clear proof of the charges gene- rally allowed by the great mercantile firms in London, graduated according to the circumstances of the case and the locality, would be the best guide to the court. Ibid. 50. Two per cent, commission was charged on the value of ship and cargo, and ten per cent, interest charged on the whole bond extending to such commission, the bondholders having had the whole care and management of ship and cargo during the time the repairs to the ship were in progress, during which time a part of the cargo was unladen and re- loaded. This commission was sworn to be a usual charge in the Baltic trade, but the evidence was conflicting. On objec- tion to such commission and interest, the court, inclining to uphold the commission, held it was unnecessary for the bondholder to show the existence of such custom in all cases of bottomry, and referred the accounts to the registrar and merchants, who disallowed the commission, and sub- stituted in lieu thereof £55, as a remune- * (13) It seems that in estimating the pro- per remuneration to be allowed in bottomry accounts to the ship's agent, the registrar and merchants take into consideration the amount of the bottomry premium. The Laurel, No. 1702, Feb. 28, 1865. E. & M. (14) The disbursements were £513, and the vessel was in the agent's hands at Fayal for three months. The merchant claimed £600, but was allowed £200 in lieu of all commis- sions. (The bottomry premium was 15 per cent.) The Wansfell, July, 1858. E. & M. (15) The disbursements were about £6,000, and the vessel had been for more than five months in the hands of the agent at Havana. The merchant claimed a commission of 2J per cent., amounting to 1,811 dollars, on the value of the cargo, but was allowed 1,500 dollars, or about £300, besides a commission of 2J per cent, on the disbursements. (The bottomrv premium was 20 per cent.) The Kepler, bee. 1860. E. & M. (16) The disbursements were about £950, and the vessel remained in the hands of the agent at Copenhagen for about ten weeks. He was allowed a sum of about 200 guineas. (The bottomry premium was 8 J per cent.) The Jenny Lind, June, 1863. E. & M. (17) The disbursements amounted to about £2,500, and the vessel was in the agent's hands at the Bahamas for over two months. He claimed 5 per cent, on his disbursements, p. and 2J per cent, on the values, amounting together to £226 : 6s. 9d. He was allowed £150. (The bottomry premium was 15 per cent.) The Charles, May, 1864. E. & M. (18) A ship's disbursements amounted to £1,350, the property was in the hands of the agents at Batavia about six weeks. They charged 5 per cent, on the disbursements and 2£ per cent, on the value of the cargo, amounting together to nearly £2,800, but no bottomry premium. They were allowed 7,500 guilders, or upwards of £700, to cover all commissions and bottomry risk. The Laurel, Feb. 1865. E. & M. (19) A commission of 5 per cent, on ad- vances at Batavia, under a bottomry bond, allowed under the circumstances of the locality, the climate, and the rate of interest ruling there. Ibid. (20) The rule of the registrar and mer- chants, to allow only 2£ per cent, commis- sion on advances, relates to advances in this country, or in any port where the means of obtaining money are not exceptionally diffi- cult. Ibid. (21) It appears from the accounts on several references in causes of bottomry, that the bondholders have been satisfied with the bottomry premium, and a commission on their disbursements, without charging a commis- sion on the value of the cargo. Ibid. ; and see the cases there cited. 5s 1722 REGISTRAR AND MERCHANTS. Pt. I. Accounts. ration for care and superintendence. The Calypso, 3 Hagg. 163. 51. Five per cent, commission on the balance of account on a bottomry bond on ship and freight disallowed by the re- gistrar and merchants, and objection to such disallowance overruled by the court. The Tartar, 1 Hagg. 14. 52. On reference to the registrar and merchants of the accounts of a bottomry bond, a charge of five per cent, commission (about £230) of the British consul for managing the affairs of the ship, the master having died, disallowed, and £37 awarded as a remuneration to the consul for his services. On objection to the report, disallowance of five per cent, com- mission affirmed, but £100 instead of £37 awarded to the consul. The Zodiac, 1 Hagg. 323. 53. Commission of five per cent, on the value of the cargo charged for care thereof (it having been necessary to unlade it), depositing it in warehouses, and re-ship- ping it according to the custom of the foreign port, and certified to be correct by the court there, and which was paid, inter alia, out of money raised on bot- tomry, disallowed by the registrar and merchants, and a commission of five per cent, on the actual disbursements for the cargo substituted. Objections to such report overruled. The Cognac, 2 Hagg. 377, 392. 54. Commissions charged at St. Thomas of two per cent, on the value of cargo for storage, and of two and a half per cent, for landing and re-shipping, disallowed, though proved to be in accordance with the custom at that port, but opposed to the custom of Lloyds. In lieu thereof reasonable sums, upon the principle of quantum meruit, allowed. The Glen- manna, 1 Lushington, 115. 55. Commissions on freight in respect of the vessels chartered to tranship dis- allowed. Ibid. 56. Commission charged of five per cent, on cash advances reduced to two and a half per cent., according to the practice observed in the registry. Ibid. 57. An item of £100 (paid to the master for. his extra trouble in relation to cargo), in the accounts on a respondentia bond objected to and disallowed in registrar's report. Such disallowance confirmed by the court. Ibid. 58. Item in a bottomry bond for ship's agent's commission at four per cent, upon the entire value of the ship and cargo for his general superintendence, and also for commission upon advances, without stat- ing to what amount or at what rate of interest such advances were made, the whole amounting to £90, disallowed, and a specific sum of £50, pro opere et labore, allowed in lieu thereof, and the amount of the bond reduced accordingly. The Fortuna, 6 Irish Jur. N.S. 272 ; 4 L. T. N.S. 840; 1 Asp. 123. 59. On taking the ship's accounts in a cause of bottomry, it was ascertained that save as to the agent's commission, no money was due as against the ship, and the registrar and merchants reported that the commission was so excessive, that on the balance of accounts, after reducing the commission to a proper amount, the owners of the ship were creditors and not debtors. Bond pronounced against, with costs. The Rhoderick Dhu, Swabey, 177; 5 W. E. 168 ; 28 L. T. 238. 60. The disbursements were above £6,200, and the property had been for a very considerable time in the agent's hands, but sufficient money had been re- mitted to pay all the disbursements. The court allowed the agent, in lieu of his claim of 5 per cent, on disbursements and 5 per cent, on the value of the cargo, estimated at £54,000, a commission of 2J per cent, on the disbursements, and 1,000 dollars, or about £200, for his ser- vices. Ibid. 61. With respect to commissions for superintending the repairs of a vessel, the registrar and merchants are not bound to allow such commissions, according to what may be alleged to be the custom in any particular place, but are justified in form- ing their own opinion, giving due con- sideration to all the circumstances of the case and to local usage. Ibid. Swabey, 182; The Laurel, B. & L. 317; 1 Asp. 405 ; 9 L. T. N.S. 457 ; The Cognac, 2 Hagg. 392. 62. As to commission in causes of damage by collision, see p. 1753. 6. Disbursements. (a) Generally.* 63. Every disbursement at a foreign * (22) On the reference of accounts to the registrar and merohants in a cause of bot- tomry, certain items for landing, storing, and re-shipping the cargo were objected to. The REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1723 port necessary to enable a snip to prose- cute her voyage, made in or about the ship herself, or her crew, is a proper subject for bottomry. The Edmond, 30 L. J. Adm. 128 ; 1 Lushington, 63 ; 2 L. T. N.8. 194. 64. Such disbursements must be for charges for which the owner or master of the ship is liable ; those for which the consignee of the cargo is liable are not the subject of bottomry. Ibid. 65. The agent of a ship advanced money on a bottomry bond. The bond was ad- mitted, and on reference of the accounts it appeared that one large item was on account of re-landing damaged flour, which had accidentally heated on board the ship, and that this flour was the pro- perty of the agent. Another large item was on account of money advanced to the master, without inquiry as to the neces- sity of such advance, or seeing to the ap- plication of the money. The report of the registrar disallowing these items was confirmed. The Royal Stuart, 2 Spinks' Eccl. and Adm.Eep. 258; 1 Jur.N.S. 1116. 66. The owners are not bound to repay to the bondholder more than is sufficient to pay for things actually necessary for the ship, and at a reasonable rate, and it is for the registrar and merchants in the first instance to allow or reduce the amounts accordingly. The Pontida, 9 P. D. 102, 177; 5 Asp. 330. 67. See further as to the expenses for which bottomry may be resorted to by the master, tit. Bottomby, p. 123 ; and by owners, Ibid. p. 114. (b) Repairs. 68. If charges for repairs are excessive, and contrary to the custom of merchants, the amount will be reduced by the regis- trar and merchants. The Lord Cochrane, 8 Jur. 716 ; 3 Notes of Cases, 172. 69. A sum of £800 was paid for new masts, and allowed by the registrar and merchants. Objection thereto on the ground that they were unnecessary, sup- ported by the evidence of scientific per- sons not present on the spot, as opposed to direct testimony of surveyors, overruled by the court. The Edmond, 1 Lushington, 68 ; 2 L. T. N.S. 194 ; 30 L. J. Adm. 128. 70. It is not incumbent upon a foreign merchant advancing money on bottomry for the repairs of a vessel to consider whether the expense of the repairs neces- sary to enable the vessel to come home, would be so enormous that no repairs ought to have been done, but that the vessel should be abandoned. The Vibilia, 1 W. Eob. 10* (c) Wages and Victualling. 71. A master, under pressing necessity of ill-health, left the ship in the port of a British colony. Held, that the amount of his wages paid under such circumstances was a proper item in a bottomry bond. The owner disputing the amount of the wages is bound to show such amount to be improper. The Rajah of Cochin, Swa- bey, 473. 72. Disbursements for victualling the crew, to discharge which, inter alia, money was raised on bottomry, allowed on refer- ence of accounts to the registrar and mer- chants, and confirmed by the court. The Cognac, 2 Hagg. 385. 73. Disbursement on account of wages made to crew while in a foreign port, money to pay which, inter alia, was raised on bottomry, disallowed on reference of bondholders relied on the bond; and on proof that they handed all the bills and receipts to the master, the owners produced a bundle of receipts, and averred that they were the receipts so handed over, but that the receipts required were not among them. The master made an affidavit on behalf of the owners, but made no allusion to these items therein, and no proof was adduced that the charges were unreasonable or excessive. The regis- trar and merchants allowed the items to the bondholders. The Laurel, No. 1702, Feb. 28, 1865. (23) The registrar, in investigating items constituting the amounts secured by a bot- tomry bond, rejected the contention that he was bound to recognize that general average principles should govern him, there having been no general average, and he allowed only such items of expenditure as were incurred for the benefit of the cargo, and acting upon the principles laid down in The Olenmanna, 1 Lushington, 115, allowed a quantum meruit in lieu of the commission charged upon the " cargo. The Ymer, Nov. 1883. E. & M. * (24) It would seem, therefore, a fortiori that it is not incumbent upon him to look to the expediency of specific repairs; but see The Pontida, supra. (24a) In investigating the accounts on a bottomry bond, surveys of the repairs the ship required were produced, but the accounts showed repairs beyond the surveys. The ac- counts were signed by the master. Objec- tions to the accounts for the repairs beyond the surveys overruled. The Qlenburn, April, 1855. E. & M. 5 8 2 1724 REGISTRAR AND MERCHANTS. Pt. I. Accounts. accounts of such bond to registrar and merchants. Objection to such report overruled, on the ground that it was a premature payment that might never be- come due, and, if so paid, might (as in this case it did) fall on the owners of cargo, who were not properly liable for it. Ibid. 393. (d) Insurance.* 74. A charge" for insurance, not being properly a subject of bottomry, cannot be made so by the mere agreement of the master, though the case might be diffe- rent where the owner himself, in a foreign country, gave the bond. Boddingtons' , 2 Hagg. 426. 75. A charge for insurance (though a low rate of insurance, and in considera- tion of which the premium on the bond was unusually moderate), disallowed by the registrar and merchants as irregular and unusual, maritime interest being only allowed in consideration of maritime risk. Objection to report overruled, and report confirmed. Ibid. 422. 76. Bond given to defray expenses of insuring vessel held invalid. The Sera- fina, No. 2098, June 28, 1864. (e) General Average. 77. A debt for general average con- tribution arising in respect of an outward voyage being a personal debt only is not a sufficient foundation for a bottomry bond on the ship for the homeward voy- age. Quaere, if a lien on the ship for general average contribution, according to the law of the foreign port where the bond is given, could support such a bond. The North Star, 1 Lushington, 45. 77a. A bond given at Buenos Ayres on ship and freight for the voyage to England to pay a general average con- tribution due upon adjustment from the ship to the outward cargo, held invalid. Ibid. (f) Costs Abroad. 78. A charge in a bottomry bond for costs said to be incurred in upholding the bond in a foreign court disallowed, as costs incurred within a foreign jurisdic- tion, and such as the court had no autho- rity to deal with. The Gauntlett, 3 W. Bob. 98 ; 13 Jur. 413 ; 7 Notes of Cases, 41. 7. Exchange.^ 4. In Actions for Freights 79. As to payment of freight under charter-parties, bills of lading, and the computation thereof and deductions there- from, and the assignment thereof gene- rally, and as between rival claimants, see tit. Goods, Cakkiage oe — , Pts. VII. and YIH. pp. 467, 468. 6. In Actions for Demurrage. 80. As to the computation of demur- rage generally, and under charter-parties and bills of lading, see tit. Goods, Car- eiage of — , p. 469. 6. In Actions of Account be- tween Part Owners.§ 81. All sums of money paid for or on account of any loss or damage, in respect * (25) On a reference in a cause of bot- tomry items for insurance of cargo landed allowed, though the insurance for the voyage covered the land risk, it not being sufficiently proved that the parties were aware of such insurance. The Laurel, No. 1702, Feb. 28, 1865. E. & M. t (26) Bond was given payable in five days after the ship's arrival at B., and a bill on London was drawn at the same time for the amount loaned, and it was agreed that, if the bill should be paid, the bond should be void at the borrower's option. The borrower did not elect to pay the bill. The lender in a suit on the bond was held not entitled to the exchange between B. and London. The Hunter, Ware, 249; The Zephyr, 3 Mason, 341. [American.] X (27) As to damages arising in actions for freight, see Mayne on Damages, 4th ed. c. 10, p. 268. § (28) The sloop O. was sailed upon thirds. The last settlement of accounts between the parties took place in the beginning of 1862. The plaintiff, the owner of 16-64ths, in the spring of 1863 applied for a statement of accounts. The defendant omitted to furnish them, on the ground that the 0. was in debt. The plaintiff subsequently caused the vessel to be arrested, and objected to accounts amounting to £19 7s., his interest in which was reducible to £1 12s. 3d. Held, that the plaintiff had failed to establish his objections, and that the defendant had improperly with- held a statement of accounts, and had not kept them satisfactorily. Bach party to pay his own costs. The Oak, Dec. 17, 1864. B. &M. REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1725 whereof the liability of the owners of any ship is limited by the ninth part of this act, and all costs incurred in relation thereto, may be brought into account among part owners of the same ship in the same manner as money disbursed for the use thereof. The M. S. Act, 1854 (c. 104), s. 515. 81a. Wages for ship and insurance are proper deductions before dividing freight. Lindsay v. Gibbs, 22 Beav. 522. 82. A vessel was chartered for twelve months ; the charterers made default in payment, and the charter lapsed. The vessel was then re-chartered for another voyage, during which the defendant pur- chased a share in the vessel. Held, on objection to the report of the registrar in a co-ownership action, that the defendant was not liable to bear any of the losses occasioned by the time charter. White v. Ditchfield, The Meredith, 10 P. D. 6T9 ; 52 L. T. 520 ; 5 Asp. 400. 82a. A part-owner claimed in his ac- counts certain items in respect of materials supplied to the ship, and not repaid to him, but for which the defendant was being sued in the Queen's Bench Division. The registrar allowed the items, and the report was confirmed by the court, but payment of the amount was stayed until the defendant was sufficiently protected against the claim made against him in the action in the Queen's Bench Division. The Charles Jackson, 52 L. T. 631 ; 5 Asp. 399. 83. A co-owner cannot make a profit on goods supplied. Ritchie v. Cowper, 28 Beav. 344. 84. A part-owner acting as ship's hus- band allowed commission. Salter v. Adey, 1 Jur. N.S. 930. 84a. But a director so acting was not. Benson v. Heathom, 1 T. & C. 0. 326. 85. A part-owner, manager of a vessel, is entitled to remuneration for his services, but there is no fixed rate applicable. Ibid.; White v. Ditchfield, The Meredith, 10 P. D. 69 ; 52 L. T. N.S. 520 ; 5 Asp. 400. 85a. A managing owner may collect and distribute freight, but as to his com- mission, if any, inquiry directed. See Smith v. Lays, 3 K. & J. 105. 86. Semble, in the absence of any agreement, express or implied, a part owner or partner in ships, who acts as ship's husband, is not entitled to charge the usual commission. In a case in which no express agreement appeared, and the books showing the usual course of deal- ing were not produced at the hearing, an inquiry was directed. Miller v. Mackay, 31 Beav. 77. 87. There appearing to be no usage the court awarded the highest sum named by the defendant's witness. S. C. April 22, 1858. 7. In Actions of Restraint.* 88. After security has been given in the Court of Admiralty by the majority of (29) In the absence of any express under- standing with his co-owners, a managing owner has no right to retain for his own benefit sums allowed by underwriters off insurance premiums by way of discount for prompt payment. Such sums must be placed to the general credit. The Kate Cleather, No. 5007, Feb. 1876. E. & M. (30) Managing owners who themselves in- sured a portion of the vessel held not entitled, in the absence of a special agreement, to charge such insurance against their co- owners. Cundy v. Thomson, 1876, C. No. 356. Ibid. (31) A managing owner is not entitled to retain for his own use sums allowed as brokerage by brokers or charterers. Craven v. Gates {The Ensign), 1876, 0. No. 459. Ibid. (32) On a reference as to ships' accounts the managing owner had debited his co- owners with the proportion of the loss sus- tained by him in connection with a line of steamers running in his name. It was not proved that the vessel in question was liable under the charter which inaugurated the line of steamers. She was not named as one of the ships composing the fleet, and she had been employed in other directions when she might have been employed in the fleet. The registrar considered, therefore, that the proportion of the loss on the line was not a charge against the ship, and disallowed it accordingly. The Lord Nelson, Nov. 1883. E. &M. (32a) A managing owner having chartered a vessel to a syndicate of which he was a member, at a lower rate of freight than that which the syndicate was to receive, was, on a reference to adjust the ship's accounts, ordered to credit the ship's accounts with his proportion of the profits made by the syndi- cate. Ibid. * (33) The owner of a minor part of a vessel having refused to consent to a proposed voyage, his share was appraised, and a bond given to him by the other owners, condi- tioned that, at the end of the voyage, which was to the West Indies and back, they would restore him his share in the vessel unimpaired, or, if she should be lost, would pay him the appraised value. Instead of her returning 1726 REGISTRAR AND MERCHANTS. Pt. I. Accounts. owners of a ship for the share of an owner dissenting from the proposed voyage, the dissentient part owner is not entitled to any share of the freight earned on that voyage. Anon. (32 Car. 2), 2 Chan. Cas. 36 ; 6 Vin. Abr. 514 ; Boyon v. Sandforth, Carth. 63 ; Wynne's Life of Jenkins, vol. ii. p. 792 ; Davis v. Johnston, 4 Sim. 539 ; Horn v. Gilpin, Ami). 255. ^rm 89. See also tit. Owners, Pt. Viii. p. 1419. 8. In Actions of Limitation of Liability of Owners. 1. Generally.* 90. Por provisions limiting the respon- sibility of owners in certain cases of loss or damage without their fault or privity to an amount not exceeding £8 per ton " in cases of loss or damage only, and to £15 per ton in cases of loss or damage and loss of life or personal injury, see the M. S. Act Amendment Act, 1 862 (c. 63), s. 54 ; and tit. Owners, Pt. VI. p. 1336. 91. As to the limitation of liability of owners generally, see tit. Owners, Pt. VI. pp. 1336—1347. 92. As to the mode of procedure in such actions, see tit. Peactice, Pt. III. p. 1683. 2. Interest. 93. The owners of a ship claiming limi- tation of liability are liable to pay interest on the statutory amount from the date of the collision, semble, until payment of the money into court, or to the parties. The Northumbvia, L. E. 3 A. & E. 6 ; 39 L. J. Adm. 3 ; The Anatolia, 27th Oct. 1885. 94. Claim for damages for the loss of a cargo of maize lost in a collision whilst being carried on board the defendant's ship. Verdict was found for the plaintiff subject to a reference as to damages, which was duly had. In the damages ■interest was awarded plus the limitation of statutory liability. Objection that interest should not have been allowed plus that liability overruled. Smith v. Kirly, per Blackburn, Quain and Archi- bald, JJ., 1 Q. B. D. 131 r'S- Asp. N.S. 516, n. 94a. As to the calculation of tonnage in such actions, see tit. Owners, Pt. VI. p. 1346. 95. As to a part owner being in fault, or privy to the damage, Ibid. 96. See also, in regard to interest and costs ultra the limitation, tit. Costs, p. 403. 9. In Actions of Marine Insurance. See tit. Marine Insurance, p. 841. 10. In Actions of Master's Ac- counts.! 1. Generally. 97. The registrar and merchants can- not allow in a master's accounts items for directly from the West Indies, they employed her several months in trade from thence to southern ports and back, and thence home. Held, in an action on the bond for the deten- tion of the vessel, that the rate for which she might have been chartered was a reason- able rule for the estimate of damages. Radicle V. Hinckley, 8 Greene, 274. [AMERICAN.] * (34) The accounts taken by the chief clerk, when the action is in the Chancery Division, are taken by the registrar and merchants when the action is in the Admi- ralty Division. t (35) In proceedings bv a master under the M. S. Act, 1854 (c. 104), s. 191, an owner having refused to accept a bill drawn by the master, was charged with the costs of pro- ceedings taken against the master in conse- quence of the bill having been dishonoured, and the charge was allowed by the registrar and merchants. The Coronet, May, 1858. E. &M. (36) An extortionate claim in a foreign port for meat, amounting, with costs of suit, to £12, paid by the master under the pressure of law proceedings, and to avoid the expenses of detention of his vessel, estimated at £20 a day, held to have been paid in the exercise of a sound discretion, and the item allowed in master's accounts. The Strathallan, No. 349, 12 March, 1861. E. & M. (37) In a master's accounts, expenses of cab hire at a foreign part in the hot season, the shippers living at a considerable distance from one another and from the ship, and it being necessary to call upon them, allowed for a day or two before the vessel sailed. Ibid. (38) Items in a master's accounts for wine and beer in a foreign port, if appearing to be excessive, will be reduced. Ibid. (39) The master supplying the crew with tobacco from the ship's stores must render an account thereof to the owner, or the amount will be charged against him. The British Empire, Feb. 1859 ; The James Hay, No. 1981, 7 May, 1864. E. & M. REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1727 which no vouchers are produced, or which are not substantiated by proper evidence. The affidavit of the master thereon is not sufficient. The Julindur, 1 Spinks' Eccl. and Adm. Eep. 72. 98. A master who, being bound under (40) Interest on the sum found due to the master allowed from the commencement of his suit. The British .Empire, Feb. 1859. E.&M. (41) Interest allowed from the date of the report. The Strathallan, No. 349, 11 March, 1861; The James Hay, No. 1981, 7 May, 1864. E. & M. (42) In an action for wages by a master who was also a part-owner a counter-claim was put forward at the reference for an amount paid by the ship for short delivery of cargo. As it did not appear that any fault on the part of the master had occasioned the short delivery the registrar refused to hold him responsible therefor in his capacity of master, but as a part-owner he was debited with a contribution to the amount paid by the ship. The Flew de Lis, No. 2842, Dec. 1865. E.&M. (43) A master being in command of a fever- stricken vessel lying in a foreign port, and being himself incapacitated from duty by the fever, went ashore for medical advice, and remained there until a certain date, when, he being too ill to command the vessel, another master, who was sent from England, took charge, with the knowledge of the sick master. Subsequently the second master took the fever, the vessel still being in the same port, and thereupon requested the former master to resume com- mand. The latter, for whom a passage home had been engaged, was convalescent, but not well enough to rejoin the vessel without in- curring great risk. He therefore refused to resumo command, and returned to England, whither the vessel was afterwards brought in safety. In an action for wages instituted by him he claimed that he continued in the ship's service until after her arrival in England, and was therefore entitled to main- tenance whilst ill ashore, and to his passage home. This claim being disputed on the ground that by leaving the vessel he had discharged himself, or that, being in fair health, it was misconduct to refuse to resume command, the registrar held, that the master was not bound to resume command at the risk of his health, but that by assenting to the change of masters he had virtually dis- charged himself. The Cornelia Henrietta, No. 2881, Jan. 1866. E. & M. (44) His wages were therefore allowed until the date when the new master assumed com- mand, and, under general considerations of equity, his passage home was also allowed. Ibid. (45) But quaere, whether, under the ruling" in The Petunia, No. 101a (post), the allow- ance of the passage home would have b9en sustained by the court. Ibid. (46) The equities between owners and a sick master who has been replaced abroad elaborately considered. Ibid. (47) A master having paid a 'certain sum to surveyors as a bribe to procure a clean certificate was not allowed to charge the amount against the owner. The Ocean Belle, No. 3314, August, 1866. E. &M. (48) Although he swore that the owner suggested and approved of the payment. Ibid. (49) Semble, the registrar and merchants, in investigating a master's claim for disburse- ments, will not recognize payments for im- proper purposes, even if the owners agreed that the payments should be made. Ibid. (50) Where material men had, in the first instance, applied to the owners for payment of their accounts, held, that, notwithstanding subsequent application for payment to the master, he could not be made liable. The Feronica, No. 3649, Aug. 1867. E. & M. (51) The amount of the accounts which, although unpaid, were charged in the mas- ter's claim as impending disbursements, was therefore disallowed. Ibid. (52) A master being in a foreign port and without funds, drew upon his owner at home. The owner being embarrassed, failed to meot the bill, and the master had therefore to find funds elsewhere, and had to pay certain legal expenses occasioned by the dishonouring of the bill. These expenses were allowed by the registrar on the equitable ground that a right in a master to draw upon his owner and a promise to pay on the part of the latter are implied by the relations existing between them. The Thorwaldsen, Nos. 3308, 3330, 3628, March, 1867. E. & M. (53) A master who gives bills for moneys advanced to and disbursed by him on the ship's accounts is entitled to treat the amounts of the bills as disbursements, even though they are not matured. The Bed Rose, L. E. 2 A. & E. 8, n.; Nos. 2800, 2848, July, 1866. E. & M. (54) But where the fund out of which the master claims to be reimbursed is in court, the bills must be paid and lodged in the" registry before the amount is paid to him, Ibid. (55) A master's claim for wages and dis- bursements included certain payments made by him on account of the expenses of the directors of the company who owned the vessel, whilst he and they were travelling on business connected with her employment. The registrar held (the merchants dissenting), that these payments were proper items in the master's claim. The Victoria, No. 7268, June, 1876. E. & M. (56) A master who institutes on action for his wages and disbursements is taken to have 1728 REGISTRAR AND MERCHANTS. Pt. I. Accounts. a penalty to appear and prosecute certain of his crew in respect of matters pertain- ing to the ship, fails so to appear, is en- titled to recover the amount of the for- feited penalty from his owner if he can show that it was for the ship's benefit that the penalty was so forfeited. The James Seddon,~L. E. 1 A. & E. 62. 99. A master is entitled to recover from his owners all expenses properly in- curred in successfully defending himself from criminal charges preferred against him under circumstances arising from matters pertaining to the control of the crew or the navigation of the vessel. Ibid. 99a. If the master he a debtor on other accounts to the owner of the vessel, or have funds of the ship in his possession^ the court will only award to him the ba- lance due on a settlement of the accounts, which it will refer to the registrar and merchants for investigation. The Repulse, 9 Jur. 740; 11 Jur. 716; 5 Notes of Cases, 362. 100. As there is no provision in the Merchant Shipping Acts for payment of the expenses home of a master discharged through illness in a foreign port, held (re- versing the registrar's decision), that such expenses cannot be allowed. The Petunia, 1879, H. No. 2, June, 1880. 100a; On a reference to assess the amount of wages and disbursements due to a master who admitted having received between £50 and £100 in pre- sents, a portion of which he stated was on paying ships' bills and another por- tion in respect of his services as super- cargo, the registrar and merchants dis- allowed a sum of £30 from his claim, viewing the presents in the light of gratuities which he was not entitled to retain for his own benefit. Eeport ob- jected to, but confirmed by the court. The Peggie Bay, May, 1883. 101. In a claim for wages a master may be allowed the balance of an account for a former voyage in the same, but not in a different ship. A balance due to the master for services in another ship disallowed. The Julindur, 1 Spinks' EccL and Adm. Rep. 77. 102. In a suit by master, under 7 & 8 Vict. c. 112, he cannot be allowed to in- clude in his accounts the amount of bills of exchange (semble, for purchase of a cargo) drawn by him upon his owner, and dishonoured, the bills not having been actually paid by him, though his liability for them still attached. Ibid. 103. Liabilities incurred by a master for articles expended for the benefit of the ship are to be considered as disburse- ments. The Feronia, L. E. 2 A. & E. 65 ; 3 Asp. 54 ; 37 L. J. Adm. 60 ; The Red Rose, L. E. 2 A. & E. 80, 99 ; The Fair- port, 8 P. D. 48 ; 52 L. J. P. D. 21 ; 5 Asp. 62; The Limerick, 34 L. T. 708; Huntley v. Sanderson, 1 C. & M. 467 ; and see In re The Rio Grande do Sul Steam- ship Co., 5 Oh. D. 282 ; 46 L. J. Ch. 277; 36 L. T. 603 ; 25 W. E. 328. And when there is a fund in court that has been earned by freight, the master will receive payment therefrom upon producing vouch- ers for the actual payments by him. The Feronia and The Red Rose, supra. 104. The master had, in his accounts, .given credit for a large sum received for ship's disbursements abroad, and for which he had given a bill on the owners, with a bottomry bond as security. On proof of declarations of the owners that they should not honour the bill, and of the holders that they should not enforce the bond, but should hold the master liable under the bill, the registrar and merchants allowed the amount of the bill as a charge against the owners in the master's ac- counts . Their report was objected to by the owners, but confirmed by the court. The British Empire, 1 August, 1859. 105. A bill drawn by the master on thereby indicated that he considers his con- nection with the ship determined. The Carolina, No. 7383, April, 1876, B. & M. ; The Ernst Merck, No. 2663, Dec. 1865. E. & M. (57) A master of a ship being in want of money for the use of the ship, drew a bill upon the shippers of his cargo. The cargo was afterwards delivered on payment of the freight less the amount of the bill. In the ship's accounts the whole freight had been credited and the disbursements debited. Subsequently the acceptor of the bill failed. On a reference to settle the ship's accounts, the defendant objected to contribute towards the loss and to that por- tion of the ship's accounts being re-opened. Having regard to the fact that at the time when the voyage account was rendered the bill had not been dishonoured, and that it was drawn on account of the ship so as to render the owners liable, the registrar held, that the amount of the bill less the dividend recovered from the bankrupt was a proper charge upon the ship. The Lord Nelson, Nov. 1883. E. &M. REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1729 the owners and dishonoured by them, for which judgment had been recovered against the master, but execution not levied, is a liability from the owners to the master in respect of the ship. The Glentanner, Swabey, 415. 106. Amounts advanced by a master to seamen for slops, tobacco, &c, allowed by the registrar and merchants, and con- firmed by the court, although the seamen had deserted ; the gain to the owners by the forfeiture of the wages earned by the deserters largely exceeding such amounts. The Feronia, L. E. 2 A. & E. 65. 107. The accounts spoken of in the 191st section of the M. S. Act, 1854, mean the accounts between the master and the ship, exclusive of any private account between the master and the owners for merely extraneous purposes. The Glentanner, Swabey, 422. 108. The law will presume that the terms of a master's engagement for one voyage extend to a succeeding voyage, performed without any express or clearly implied new agreement. The Gananoque, 1 Lushington, 448. 109. The master's liability in respect of wages due to the crew and of neces- saries furnished at his order to the ship is not included in the term " disburse- ments" in the Admiralty Court Act, 1861 (c. 10), s. 10, and he cannot, therefore, under that section, sue in the Court of Admiralty in respect of such liabilities. The Chieftain, 8 L. T. N.S. 120. 109a. The plaintiff, a master mariner, bought a small share of a ship, and be- came master, on the terms of receiving £15 a month, and half cabin-passage profits. The ship went to Melbourne with cargo only, and returned home. Tho defendant, the managing owner, then chartered the ship to carry goods and emigrants to New Zealand, at a lump sum ; and if freight and passage-money should exceed that sum, the surplus to be divided between the charterers and owners ; the master to keep account of the issue of all stores, and account for surplus stores. Plaintiff expressed his general satisfaction with the charter, but no communication passed as to the terms on which the plaintiff should serve on the new voyage, except as to his gratuity from the charterers. The ship took to New Zealand emigrants and cabin pas- sengers, and plaintiff received his gra- ' tuity from the charterers. Held, that the original agreement continued, and that the master was entitled to a share of cabin-passage money profits. The Gana- noque^ supra. 110. In a suit for wages the master's claim was allowed, but various deductions being alleged to be due from him by the mortgagee in possession, the accounts were referred to the registrar and merchants. On the reference, it appeared that the master had agreed with the mortgagee in possession to advance £1,500 towards the whole sum for which the ship was mort- gaged, upon which he was to receive a certain amount of interest and to bear his proportion of loss, if any. The master, instead of £1,500, advanced a smaller sum, and the mortgage transaction was attended with loss. The registrar and merchants, considering the agreement to advance the £1,500 binding, calculated the proportion due from the master upon the £1,500, and reported in accordance with such estimates. Held, that such loss was not a matter of account, but of un- liquidated damages, the amount of which must be assessed by a jury and could not be ascertained by the registrar and mer- chants. The Repulse, 1 1 Jur. 716 ; 5 Notes of Cases, 362. 111. Costs of objection to the report •allowed to the master. Ibid. 112. A master of a ship having, in obedience to orders received from the agent of the owner, paid off a portion of the crew after his vessel was arrested by the Court of Admiralty in a collision suit, is entitled as against his owner to credit for such payments upon a settle- ment of his accounts. The Duna, 5 L. T. N.S. 217; 6 Jur. N.S. (Irish), 358. 1 12a. As to double pay, see tit. Wages, c. 19. 113. As to actions for masters' ac- counts generally, and 'the jurisdiction of the Admiralty Division thereon, see tit. Masters, p. 1123. 1 1 3a. As to the practice in such actions, see tit. Practice, p. 1682. 2. Interest.* 11. In Actions of Mortgage. 1. Generally. 114. In assessing damages due to a mortgagee (the ship being an insufficient (58) See notes (40), (41), supra. V 1730 REGISTRAR AND MERCHANTS. Pt. I. Accounts. security) for wrongfully depriving him of the vessel, the principle upon which the damages are to be measured is, that the mortgagee is entitled to have the ship delivered to him in the exact condition in which it was on the day when he claimed possession, with every expense reimbursed to him and interest in the meantime. De Mattos v. Gibson, 1 Johns. & H. 86 ; 3 L. T. N.S. 121 ; 30 L. J. Ch. 145 ; 7 Jur. N.S. 282. , 115. In estimating such damages the mortgagor is not entitled to any benefit which may have accrued during such time, owing to the increased value of the ship by reason of any rise in the current rates of freight. Ibid. 116. He is not, if he has announced no intention of using the ship, but a deter- mination to sell, entitled to be reimbursed the probable profits arising from a char- terparty, which he could otherwise have concluded. Ibid. 117. When on granting an injunction against the use of a ship by an owner, an undertaking for damages is given, the measure of damages would include the loss of profit by the detention of the ship. Ibid. 118. But when an injunction was against a mortgagee of a ship (which was an in- sufficient security) and he had declared his intention to sell, but had not sug- gested the loss of possible profit as part of the damage anticipated, held, that the measure of damages was the expense in- volved in the custody of the ship, and the deterioration which she had suffered, together with interest in the meantime. Ibid. 1 19. A ship was mortgaged for a nomi- nal sum, to secure an unascertained ba- lance, with power to sell by auction, and in ease of not being sold, the mortgagee to have the control and benefit of the ship until his claims were satisfied. A sale by private contract before balance ascer- tained, and while an investigation before arbitrators as to the amount was pending, held, an unauthorized and wrongful sale (reversing the judgment below), and an account of the value of the ship at the time of such sale ordered to be taken, and the respondent made liable to the appellant for such value. Brouard v. Dumaresque, 3 Moore, P. 0. C. 457. 120. A mortgagee who on entering into possession uses a mortgaged vessel in an adventure or speculation which turns out to be a losing one, is not only not entitled to charge the loss against the mortgagor, but must himself be charged with the value of the property at the time of his taking possession. Mar- riott v. The Anchor Reversionary Com- pany, Limited, 2 Giff. 457 ; 3 L. T. N.S. 538 ; 7 Jur. N.S. 155 ; 30 L. J. Ch. 571 ; 9 W.R. 726 ; 4 L. T. N.S. 590. 121. A mortgagor of a ship being allowed to remain in possession and to use her, placed her, on her being con- demned as unseaworthy, in the hands of a shipwright to be repaired, who, not being able to obtain his money for the repairs which he had done, retained pos- session of her, claiming a right of lien upon her. In trover brought against him by the mortgagee, held, that the mortgagee's having allowed the mort- gagor to remain in possession and use the vessel, amounted, in the absence of an express authority, to an implied one that he was to use the vessel in the ordinary way, and have repairs done when neces- sary. Williams v. Allsup, 10 C. B. N.S. 417 ; 4 L. T.N.S. 550, G. P. ; 8 Jur. N.S. 57 ,• 30 L. J. 0. P. 353. 122. Held; also, that the shipwright having such authority to repair, was en- titled to hold the ship as against the mortgagee until his debt was paid. Ibid. 123. Held, also, that the Merchant Shipping Act, 1854 (c. 104), s. 70, which enacts " that the mortgagor shall not be deemed to have ceased to be owner of the mortgaged ship, except in so far as may be necessary for making such ship available as a security for the mortgage debt," did not conflict with this view. Ibid. See also No. 110, supra. 2. Interest.* 124. A ship was mortgaged for pay- ment of a sum, with interest at £10 per cent., in six months ; the principal not having been paid at that time, held that interest continued payable at the same rate. Morgan v. Jones, 8 Exch. 621 ; 22 L. J. Exch. 232. See Price v. Great Western Rail. Co., 16 M» & W. 244. 125. A mortgage deed made no pro- vision for interest, and the mortgagee thereby agreed, upon payment of the . * (59) A tender of the debt was made to the tender, mortgagee in pursuance of an agreement, eican.] Held, that no interest was due after the i McNiel v. Call, N. H. 403. [Ame- REGISTRAR AND MERCHANTS. Pt. I. Accounts.' 1731 principal sum, to re-convey; held, that the mortgage carried no interest. Thompson v. Brew, 20 Beav. 49. 126. Mortgage action improperly insti- tuted ; defendant paid £500 into court in lieu of bail, and the plaintiff subsequently abandoned his action ; interest at £4 per cent, allowed to the defendant on the amount paid in. The Western Ocean, L. E. 3 A. & E. 38. 126a. As to interest in other actions, see the other chapters. 12. In Actions for Necessaries, Repairs or Supplies.* 1. Generally. 127. Agents and brokers in London furnished coals to a foreign steamer for several voyages made by the steamer in 1856. As agents of the ship they received the freights payable in London, and out of the proceeds furnished supplies and paid the expenses incurred by the steamer in England, making out a debit and credit account upon each voyage, which accounts they forwarded to the owners. Held, that the agents having appropriated in their accounts moneys actually received in payment of specific items, including the coals supplied on each voyage, were estopped by the accounts they had fur- nished from appropriating the receipts to a previous agency account for the ship, and from suing for the coals as neces- saries supplied and unpaid for. The Ttventfe, 13 Moore, P. C. 0. 185. And see as to the appropriation of payments, Devaynes v. Noble (Clayton's Case), Tudor's Leading Cases in Maritime Law (3rd ed.), p. 1. 127a. See also as to such actions gene- rally, tit. Necessaries, Bepairs and Supplies, p. 1148. 2. Interest. 128. In Admiralty actions, interest at the rate of 4 per cent, runs on the amount awarded from the date of entering the judgment, and such amount is a judg- ment debt within Ord. XLII. r. 14 (now r. 16, No. 594); since by s. 76 of the Jud. Act, 1873 (c. 66), the statute 1 & 2 Vict. c. 110, s. 17, applies to Admiralty actions. The Jones Brothers, 3 Asp. N.S. 478; 37 L. T. N.S. 164. 13. In Actions of Possession. 1 . Generally. \ 129. A party entitled to possession, wrongfully transferred, of a vessel, is entitled also to demurrage as compensa- tion, and virtually part of the interest in dispute, not as vindictive damages. The John, 2 Hagg. 317. 130. Fraudulent sale of a vessel by B. to C. set aside in favour of A. The par- ties having agreed that the amount of * (60) A shipwright repaired a vessel whose ownors resided in England, and detained hor in his yard until she was sold by order of the court in a mortgagee's action. The ship- wright having Drought an action against the vessel, claimed payment out of the fund in priority to the mortgagees. His claim to priority was resisted by the mortgagees on the ground that until their action was insti- tuted the shipwright had no power to enforce his claim in the Admiralty Court. The ob- jection was disallowed. The Polymede, No. 108, May, 1876. E. & M. (61) A claim for necessaries supplied to enable the ship to earn freight, which had been hypothecated to bottomry bondholders, given precedence over the bottomry debt. The Bridgewater, 1877, No. 314, April, 1879. E. & M. t (62) Where personal property is wrong- fully taken or detained by force, fraud, or process of law, the measure of damages is the value of the property at the time the owner is dispossessed, increased by the da- mages which the owner is proved to have sustained from the loss of possession. Suy- dum v. Jenkins, 3 Sandf. Sup. Ct. 614. [American.] (63) This case contains an elaborate review of the cases as to the rules of damages. Ibid. (64) In an action against the master of a vessel for breaking up the voyage and dis- posing of the vessel, the expense of bringing home the vessel from a port to which the master has wrongfully navigated her, is a legal element of damages. Brown v. Smith, 12 Cush. (Mass.) 366. [American.] (65) So are reasonable damages for break- ing up the voyage. Ibid. (66) But conjectural or possible profits of a whaling voyage cannot be taken into consi- deration in estimating the damages. Ibid. (67) Upon the sale and delivery of a ship, the vendor agreed to deliver a good title and register, within a time certain, under a penalty of 2,000 dollars. Held, that the 2,000 dollars were liquidated damages. Fish v. Fowler, 10 Cal. 512. [American.] 1732 REGISTRAR AND MERCHANTS. Pt. I. Accounts. damages should be assessed by an aver- age stater, the court suggested, and the parties assented, that the measure of damages should be the value of the ship and all her stores, &c, on the day when C. took possession of her ; and that, as a mode of ascertaining such value, the referee should consider what would have been the value of the ship if she had been completed by B. according to his contract with A., and deduct therefrom the money necessarily laid out by B. after that date, in order to complete her. Reidy. Fairbanks, 13 C. B. 692, 729; 21 L. T. 166; 17 Jur. 918; 22 L. J. C. P. 206. 131. As to value of ship in causes of damage by collision, see p. 1744 ; and in cases of costs and damages, see p. 1775. 2. Ameliorations.* 132. See tit. Owners, Pt. I. p. 1226. 14. In Actions of Salvage. 1. Generally. f 133. W. B., having acted as agent for rendering service to a foreign ship in dis- tress on the English coast, afterwards en- tered an action against the ship, &c, as a salvor. The court held that he was en- titled to sue in that character, but referred all the accounts between him and the owners to the registrar and merchants before decreeing any sum as salvage. La Purissima Concepcion, 13 Jur. 967. 134. The court will refer a claim, if objected to, of agent's expenses, as a deduction from a salvage award, to the consideration of the registrar and mer- chants. The Louisa, 2 W. Bob. 24. 135. Eeference decreed to the registrar and merchants of the accounts of a party appointed agent by the master, and claim- ing also as salvor in that capacity. The Happy Return, 2 Hagg. 207. 136. On salvage of a fishing smack, frozen up in Davis's Straits, effected by three other whaling vessels, £700 awarded in addition to the bounties given by the treasury. Such bounties, however, held to be a sufficient recompense and bar to all claim for demurrage and payment of stores, and for early sailing. The Swan, 1 W. Bob. 68. 137. In estimating the value of recap- tured property for the purpose of a sal- vage apportionment, the true rule is to take the value, not at the time of capture, but at the place of restitution, which is to be considered with reference to the moment of the arrival of the property in port. The Progress, Edwards, 222. 137a. Commission paid for bail in a salvage action will not be allowed as part of the damages recoverable by the salved vessel in an action of damage by colli- sion. The British Commerce, 9 P. D. 128 ; 53 L. J. Adm. 72 ; 5 Asp. 335 ; 51 L. T. 604 ; 33 W. B. 200. 138. The Board of Trade is entitled to a percentage of five pounds in the hun- dred on all salvage in respect of any ship, boat, or cargo, or apparel of any ship or boat, or any wreck or other property •brought into Bamsgate harbour. See the Harbours and Passing Tolls, &c. Act, 1861 (c. 47), s. 28. 139. Such percentage shall be de- ducted from the salvage, and paid to the Board of Trade, before the remainder of the salvage is paid over to the salvors, and shall be recoverable like salvage. Ibid. 140. Salvage of derelict cargo brought into Bamsgate Harbour. £ 3, 500 awarded, from which the salvors were directed to pay the damage to their boats, and 5 per cent, dues to Bamsgate Harbour. The Cargo ex Regina^o. 1024, 27 May, 1862. 141. As to claims for loss of freight generally, see p. 1724 ; and in collision actions, p. 1761. 142. As to claims for demurrage generally, see tit. Goods, Carriage oe — , p. 603; and in collision actions, p. 1763; and on costs and damages, p. 1776. 2. Losses or Damage in rendering Salvage Assistance.^ 143. Loss and damage of salvors attend- * (68) Eepairs made upon a vessel by the owner after he became the purchaser cannot be set off against her earnings before the pur- chase. Richardson v. Kimball, 28 Maine (15 Shep.) 463. [American.] t (69) As to the effect of certificates of valuation by magistrates in salvage cases, under 1 & 2 Geo. 4, c. 75 (since repealed), see The Brothers, 2 Hagg. 197. (69a) The plaintiffs, besides the expenses of repairs, demurrage, &c, claimed for loss of freight, £934. Held, that the burthen of proof of this claim rested with the plaintiffs. The Qladiator, No. 1594, April 29, 1864. E. & M. % (70) A vessel, being ignorant of her whereabouts, struck a shoal, but got off and come to anchor, and a steamer coming by gave REGISTRAR AND MERCHANTS. Pt. I. Accounts. 1733 ing a salvage service referred to the re- gistrar and merchants to examine and report upon. The Oscar, 2 Hagg. 261 ; The Salacia, Ibid. 269. See also The Watt, 2 W. Eob. 72. 143a. Where a vessel in rendering salvage services sustains damage -with- out negligence on the part of her master and crew, her owners are entitled to be re- paid by the owners of the salved vessel for such damage, and for demurrage during the repairs thereof. The Mud Hopper (No. 4), 4 Asp. 103, 136; 40 L. T. N.S. 462. 144. To entitle owners of a salving vessel to a primary lien on the property salved for compensation for losses, such losses must be actual. If speculative merely and consequential, they are only ingredients in estimating the salvage remuneration, of which they receive an allotment. The Martha, 3 Hagg. 436. 145. Whenever property of the salvor is damaged in effecting the salvage ser- vice, the damage is to be repaired, or paid for to the full extent of its actual value or at the cost price, and not at the trade profit price. The Augusta Jesse, 4 (Irish) Jur. N.S. 227. 146. The court will decline entertain- ing a claim as against the owners of the vessel salved for repairing damage done to the salving vessel, if that damage was not necessarily incurred in the salvage service, but resulted from a struggle with another vessel seeking to assist in the salvage. The Eliza, 4 (Irish) Jur. N.S. 58. 147. The Court of Admiralty cannot, in a salvage suit, allow charges for re- pairs of vessel salved, though asserted to be so mixed up with the salvage as to be inseparable. The Ranger, 2 Hagg. 42. 148. When the salvors' vessel is in- jured or lost whilst engaged in the salvage service, the presumption is that the injury or loss was caused by the necessities of the service and not by the default of the salvors, and the burthen of proof lies upon the defendants alleging that the loss was caused by the salvors' own acts. Compensation to the salving vessel awarded accordingly. The Thomas Blyth, 1 Lushington, 16. 148a. The A. S., a large and valuable steamer, rendered salvage services to the Gr., another large steamer, in Smyrna Bay, and in doing so damaged her ma- chinery, which was repaired on her return to Liverpool shortly before Christmas. The court, besides awarding salvage, pro- nounced for the damages, and for the detention and losses of the A. S. during the repair of the damages, and referred the accounts to the registrar and mer- chants to examine and report thereon. The Gladiator, No. 1594, April 29, 1864. her information of her position, and attempted to to w her to a place of safety. On the hawser, however, breaking no further attempt to tow was made, but the steamer guided the vessel out to sea, clear of all shoals, being with her about five hours. Held, that the steamer was entitled to salvage. The steamer having been thus delayed, arrived in the subsequent prosecution of her voyage, about low water, at a dangerous place, which, but for that delay, she would properly have reached at about high water, and have passed in safety, but it being low water Bhe struck a rock, and was very seriously injured. Held, that such damage was too remote. United States Dis- trict Court of Admiralty, 2 Asp. 140. [Ame- rican.] (71) The V. got aground. The M. came to her assistance, and they were lashed to - gether, the V. being much the more powerful vessel. The V. got off, but the M. ran upon a snag and made a hoie in her bottom, and was lost. The V. had been there more than a day, and had ample opportunity of know- ing the locality. Held, that the V. having failed to make the necessary investigations as to the dangers of the place, and being the chief and controlling motive power, was liable for the damages and loss of the M» The Missionary v. The Virginia, 1 Asp. N.S. 107. [American.] (71a) This case is calculated to mislead, as it would almost induce us to suppose that a salvor is not entitled to recover compensa- tion for loss of his vessel, except in case of negligence of the salved vessel. We fail to see the necessity for dividing the case on the question of evidence. It is a well-recognized practice in Courts of Admiralty to award compensation for loss and damage sustained in rendering salvage services, quite inde- pendently of any negligence on the part of the salved vessel. See The Saratoga, Lush. 318 ; Editor's note to 1 Asp. N.S. 107. (72) It is quite clear that if there was negligence on the part of the V. she was liable as in an ordinary case of damage, but where she is liable to pay for the damage in another way it is dangerous to introduce a doctrine capable of misconstruction. The question asked, as to " whose duty it was to foresee and guard against the possible conse- quences of success ? " has nothing to do with the real question of whether the vessel was injured whilst performing a salvage service, and would imply that negligence alone created liability. Ibid, See also note 251, p. 1761, \ 1734 REGISTRAR AND MERCHANTS. Ft. I. Accounts. 149. Where the property saved is ample, losses voluntarily incurred by the salvor should be transferred to the owner of the property saved, and in addi- tion the salvor should receive a compen- sation for his exertions and for the risk he runs of not receiving any compensa- tion in the event of his services proving ineffectual. The De Bay, 8 App. Cas. 559 ; 52 L. J. P. C. 57 ; 5 Asp. 156 ; 49 L. T. 414. 150. The losses should be ascertained with precision where practicable, but in that case the salvage remuneration added thereto should be fixed on a more mode- rate scale than where the losses cannot be fixed with precision. Ibid. 151. In an action of salvage of pro-, perty of large value (£179,000), the court awarded £6,000 as salvage, but refused to receive evidence of particular injuries to the salving vessel caused by the per- formance of the services, and of the costs of the repairs, and of the loss caused by detention during such repairs. ( The De Bay, 8 App. Cas. 559, considered.) The City of Chester, 9 P. D. 0. A. 182. 152. On appeal, held, per Brett, M. P., that the judge of the Admiralty Court was not bound, ex debito justifies, to admit such evidence, or to decree in terms that a specific amount should be paid to the salvors in respect of damages so caused, though he might, in his discretion, receive such evidence, and include an amount in respect of damages in his award. Decree varied by awarding £1,000 as salvage, and referring the damages and detention to the registrar and merchants, unless the appellants accepted the amount awarded by the court below. Ibid. 153. Per Baggallay and Lindley, L.JJ. : "Where salvage services have occasioned damages and losses to the salvors, and the value of the property salved is ample, the salvor should be awarded salvage, and also a sum sufficient to cover the da- mages and expenses in rendering the service, and evidence of such damages and expenses ought to be received so that they may be ascertained with precision. Ibid. 3. Interest.* 154. On an appeal from an award of salvage by Cinque Port Commissioners when the award is of long standing the court will decree interest thereon. The Hector, 3 Hagg. 95 ; The Experiment, 18 April, 1837. 155. Salvors held entitled, under the 76th sect, of the Judicature Act, 1873 (c. 66), to interest at four per cent, on the amount awarded from the date of the judgment. The Jones Brothers, 46 L. J. P. D. & A. 75. 156. Interest on the amount of loss and damage is not recoverable by salvors. The De Bay, 8 App. Cas. 559 ; 52 L. J. P. C. 57; 5 Asp. 156; 49 L. T. 414._ 156a. As to interest in other actions, see the respective chapters. 15. In Actions of Wages.t 157. Where the amount of wages due to a seaman was greatly reduced by a de- * (73) Ordinarily interest is not allowed on salvage from the date of earning to the date of the award. (73a) Interest at the rate of 4 percent, given to salvors from the time they were kept out of their money by objections, not sustained, to registrar's report. The Samuel, July 28, 1852. t (74) In a cause of wages proceeding by de- fault, but with bottomry bondholders and cargo owners intervening, the master's claim was opposed on the ground that the bond- holders were entitled to priority. The regis- trar, however, held that, as the bond was recoverable from ship, freight, and cargo, and the master's wages from ship and freight only, the assets must be marshalled, so that both claims might be paid in full. He therefore directed payment of the master's claim out of the proceeds of ship and freight, in priority to the bondholders' claim. The El Salvador (alias Maravilla), No. 6894, Dec. 1874. E. & M. (74u) By the American law certain special payments have to be made by American owners who discharge American seamen abroad, but as the English Court of Admiralty applies the general maritime law it cannot take cognizance of the municipal laws of foreign countries. The registrar and mer- chants will not, therefore, allow such pay- ments as items of wages. The Cultivator, June, 1878, B, No. 64. B. & M. (75) Claims made by the crew of a vessel for wages from the time of their vessel being run down to the time of their arrival in the United Kingdom are seldom made and never allowed. The Thyatira, July, 1882. E. & M. (76) The fact that an owner had ceased to have any interest in the proceeds of the sale of a vessel, or in opposing a master's claim for wages on the fund, will deprive his evi- dence of the weight which would generally attach to admissions made by the owner of a vessel of his liability to the master. The Sherbro, January, 1883. E. & M. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1735 preciation of the currency at the date of his claim, and it did not appear at what rate such -wages were to be calculated, the court construed the uncertain contract most strongly in favour of the seaman, and allowed him wages at the fullest rate. The Nonpareil, 33 L. J. Adm. 201. 158. A charge of crimpage referred to the registrar and merchants to report if there was any custom in the merchant service under which such a charge was usually paid as a part of wages. The Jack Park, 4 C. Bob. 314. 158a. Neither error of seamanship in a master nor neglect to communicate to a Lloyd's agent the fact of the stranding of the vessel, nor neglect to sign a bot- tomry bond, works a forfeiture of wages. The Camilla, Swabey, 312. 159. Semble, the owner's remedy, prior to the Judicature Acts, was by cross- • action in a court of common law. Ibid. 159a. A master engaged for a voyage out and home, if wrongfully discharged abroad, is entitled to wages until he can obtain other employment; and semble, until the determination of the entire voyage. Ibid. 160. As to compensation to seamen for improper discharge, see tit. Wages, c. 14. 160a. For discharge from foreign ships in this country, Ibid. 161. For being left behind abroad, Ibid. 161a. For deprivation of right to sue abroad, Ibid. 162. As to calculation of wages, Ibid. c. 17. 162a. As to compensation of ten days' double pay for delay in payment, Ibid. c. 19. 16. Claims in respect of Volun- teers into the Navy. 163. See tit. Practice, Pt. III. c. 19, p. 1702. 17. Claims of Officers and Crews of H.M. Ships for Distribu- tion of Salvage. 164. Ibid. c. 17, p. 1694. 18. Practice on References and Objections to Reports. 165. Ibid. Pt. II. c. 40, pp. 1648— 1655. 19. Registrar and Assistant Registrar. 166. Ibid. Pt. I. p. 1470. 20. Evidence on References. 167. See tit. Evidence, p. 430. 21. Costs of References. 168. See tit. Costs, p. 358. 22. Special Referees and Arbitrations, 169. See tit. Practice, Pt. II. pp. 1658, 1659. Part N.— MEASURE OF DAMAGES. 1. Generally.* 1. In Contract. (a) Generally. 170. To ascertain what are the damages payable on a breach of contract, it is to * (77) The leading case on the subject of damages arising from a breach of contract is that of Hadley v. Baocendale. That case has been supposed to lay down three rules : (1) that damages which may fairly and reasonably be considered as naturally arising from a breach of contract, according to the • usual course of things, are always recover- able; (2) that damages which would not arise in the usual course of things from a breach of contract, but arise from special circumstances peculiar to the case, are not recoverable unless such special circumstances are known at the time of contract to the person breaking the contract ; in which case (3) such damages are recoverable if the damages complained of flow naturally from the breach of the contract contemplated by the parties. See Mayne on Damages, 4th ed. pp. 10, 11, 12; and see further as to such 3rd rule, Ibid. p. 38. (78) Where personal property is wrongfvflly 1736 REGISTRAR AND MERCHANTS. Pt. II. Damages. be ascertained, what is the object of the contract contemplated by the parties. Duckworth v. Ewart, 9 L. T. N.S. 297. 171. The party who breaks a contract is liable for the natural and reasonable consequences of his breach of contract. Swan y. The Whitehaven Junction Railway Co., 20th April, 1864. (Coekburn, C. J.) 172. Where two parties have made a contract, which one of them has broken, the damages for breach should be such as may fairly and reasonably be considered as arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contem- plation of both parties, at the time they made the contract, as the probable result of the breach of it. (See Alder v. Keighley, 15 M. & W. 117.) Hadley v. Baxendale, 9Exch. 341; 23 L. J. Exch. 179, 182; 23 L. T. 69 ; 18 Jur. 358 ; 23 L. J. 179. And see Fletcher v. Tayleur, 17 C. B. 27. 173. The measure of damages for breach of a contract to repair and deliver a vessel by a stipulated day will be the net profit which the owners might have obtained by chartering the vessel, if she had been delivered at the stipulated time instead of the time when she actually was delivered. In re Trent and Humber Co., Ex parte Cambrian Steam Packet Co., L. E. 4 Eq. 112; Ibid. 6 Eq. 396; 37 L. J. Oh. 686; 38 L. J. Ch. App. 38; 3 Asp. 119. Quaere, in estimating the net profits ought the wear and tear and depreciation which the ship would under- go in earning those profits to be taken into account ? Per Cairns, L. 0. Ibid. 174. K. sued B. for breach of contract in not accepting five tons of hops con- tracted by B. to be bought and by K. to taken or detained by force, fraud, or process of law, the measure of damages is the value of the property at the time the owner is dis- possessed, increased by the damages which the owner is proved to have sustained from the loss of possession. (This case contains an elaborate review of the cases as to the rules of damages.) Suydum v. Jenkins, 3 Sand. Sup. Ot. 614. [American.] (79) The measure of damages is in general that which will compensate the plaintiff as nearly as may be for the actual injury sus- tained by the breach of contract. Robinson v. Vamell, 16 Texas, 382. [American.] (80) Where from the nature of the con- tract it is not practicable to ascertain the amount of damages sustained by a breach of it, the measure is the price agreed on. Coffee v. Meiggs, 8 Cal. 363. [American.] (81) The rule of damages in an action on a contract of sale, when the vendor neglects or refuses to deliver the personal property sold, and when nothing was paid by the pur- chaser, is the difference between the contract price and the market value of the property on the day when it should have been de- livered. Belden v. Nicolay, 4 E. D. Smith (N. T.), 14. [American.] (82) Where goods are paid for before delivery and are not delivered at the day, the measure of damages is the highest mar- ket price between the day of delivery and the institution of the suit, provided the suit is not unreasonably delayed. Cannon v. Fol- sorn, 2 Clarke (Iowa), 101. [American.] (83) Where the property converted has a fixed value the measure of damages is that value with legal interest from the time of the conversion ; where the value is fluctuating the plaintiff may recover the highest value at the time of the conversion, or at any time afterwards. Douglass v. Kraft, 9 Cal, 562. [American.] (84) In trover, the measure of damages is the value of the property at the time of the conversion. Selkirk v. Cobb, 13 Gray (Mass.), 313. [American.] (85) In detinue, as in trover, the value of the property at any time between the demand and the trial is the measure of damages. John- son v. Marshall, 34 Ala. 522. [American.] (86) To an action on a due bill to pay a certain amount of flour on a certain day,, a tender on that day of the market price of the flour at that time is a defence, that being the measure of damages. Davenport v. Wells, 1 Clarke (Iowa), 598. [American.] (87) In an action for breach of a contract to deliver goods at a particular place and within a definite time, no payment having been made, the rule of damages is well settled to be the difference between the contract price, and that which goods of a similar de- scription and quality bore at the time and place designated. Berry v. Dwinel, 44 Maine, 255. [American.] (88) If the specified goods had no market value at that time and place recourse must be had to the sales which were made nearest the time and in the nearest market to the place. Ibid. (89) A possible profit which the plaintiff might have made if the goods had been de- livered according to the agreement, cannot be considered in estimating damages. Ibid. (90) And not though he had made pay- ments in advance. Sherman v. Roberts, 1 Grant's Cases (Penn.) 261. [American.] (91) The prime cost or value of the pro- perty lost at the time of the loss with all charges, and the premium of insurance where it has been paid, constitute the true measure of damages. 1 Conkling's Adm. Prac. (2nd ed.) 460. [American.] REGISTRAR AND MERCHANTS. Pt. II. Damages. 1737 be sold and delivered. Held, that the measure of damages is the difference between the contract price and the market price at the time of the refusal to perform the contract. Boswell v. Kil- born, 8 Jur. N.S. 443; 10 W. E. 517; 6 L. T. N.S. 79, P. 0. 175. The measure of damages for breach of contract in the sale of goods is not merely the amount of the difference between the contract price and the price at which such goods could be bought at the moment when the contract was broken ; but likewise a compensation for such profit as might have been made by the purchaser had the contract been duly performed. Dunlop v. Higgins, 1 H. L. C. 381. [Scotch.] 176. Queer e, whether the plaintiff was entitled to recover for deterioration of, and damage done to, his goods while detained by the company, or for loss of profits arising from his being deprived of the use of them during that time. Davis v. North Western Railway Co., 4 H. & N. 855. 177. A. delivered goods to a railway company, to carry to B., paying the car- riage. Part of the transit was effected by another railway company, which re- fused to deliver up the goods to the con- signee without payment of an additional sum ; but (an action having been threat- ened against the contracting company) subsequently offered to deliver them up without that payment. The action was, however, brought, and subsequently the goods were given up in a damaged state. Held, that the additional sum demanded for the goods was not the measure of damage. Ibid. 178. A prize had been offered for the best plan and model of a machine for loading colliers from barges, and plans and models intended for the competition were to be sent by a certain day ; the plaintiff sent a plan and model accord- ingly by a railway, but through negli- gence it did not arrive at its destination until after the appointed day : semble, the proper measure of damages in such case is the value of the labour and mate- rials expended in making the plan and model, and not the chance of obtaining the prize, as the latter is too remote a ground for damages. Watson v. The Ambergate, Nottingham, and Boston Rail- way Co., 15 Jur. Q. B. 448. 179. In an action against a carrier for damage to goods, the fact that the damage was partly caused by bad packing goes only to the amount of damage. Higgin- botham v. Great Northern Railway Co., 2 F. & P. 796 ; 10 W. E. 358. 180. Qucere, if in the course of per- formance of a contract one party gives to the other notice of any particular con- sequences which will result from a breach of the contract, the latter would not be held responsible for the consequences of the breach of contract, though they are not such as would naturally arise, and were not in contemplation of the parties at the time of the contract. Gee v. Lanca- shire and Yorkshire Railway Co., 6 H. & N. 218. 181. In consequence of four days' delay in the delivery of cotton by the defend- ants the plaintiff's mills were at a stand- still for that period. Held, that the loss of profits and the amount of wages paid for the four days would only constitute the legal damages, if the stoppage arose entirely from the non-delivery of the cotton, but not if it arose partly from that cause and partly from the plaintiff's having no cotton to go on with. Ibid. 211. 182. The loss of profit and the amount of wages might prove to be the legal da- mages, if the jury found as a fact that the stoppage of the mill was such a con- sequence of the non-delivery as, either from express notice or the course of business in the district, might have been anticipated by the parties at the time of making the contract. Ibid. 183. The value of a cargo for the purpose of insurance is to be taken with reference to the port of shipment, not that of discharge. Tatnvaco v. Lucas, 1 El. B. & S. 185; 7 Jur. N.S. 1100; 30 L. J. Q. B. 234 ; 4 L. T. N.S. 400. 184. Defendants, warranting them- selves as agents of L. & Co., sold the plaintiff, on their behalf, certain wool. L. & Co. having repudiated the contract, the plaintiff filed a bill in chancery against them for specific performance, which was dismissed with costs. He afterwards brought an action against the defendants for their breach of warranty. Held, that the measure of damages should include the difference between the con- tract price of the wool and the value of similar quality at the time and place where the wool would have been delivered had the contract been binding, and the costs of the chancery suit taxed as be- tween attorney and client. Hughes v. Graeme, 33 L. J. Q. B. 335 ; 12 W. E. 857. 185. As to the measure of damages in 5 T 1738 REGISTRAR AND MERCHANTS. Pt. II. Damages. cases of warranty, see Randall v. Raper, E. B. & E. 84 ; Dingle v. Hare, 7 0. B. N.S. 145 ; Spark v. Heslop, 1 E. & E. 563. In cases of detinue, Williams v. Archer, 5 0. B. -318 ; and in other cases of breach of contract, Reid v. Fairbanks, 13 0. B. 692, 729 ; Chinery v. Viall, 5 H. & N. 288 ; Loder r. Kekuli, 3 C. B. N.S. 128 ; Portman v. Middleton, 4 0. B. N.S. 322 ; Smeed v. Foord, 1 E. & E. 602 ; Smith v. McGuire, 3 H. & N. 554. 2. In Tort* 186. In collision actions in the Admi- ralty Division the measure of damages is restitutio in integrum. See The Gazelle, The Ironmaster, and other cases in Nos. 207—210, p. 1742. 3. Remoteness of Damages.^ 187. The rule with regard to remoteness of damage is precisely the same, whether the damages are claimed in actions of contract, or of tort; per Brett, M. R. The Notting Hill, 9 P. D. 105 ; 53 L. J. Adm. 56; 5 Asp. 241. 188. For cases illustrating the rule that damages must not he too remote, but must be the natural and proximate consequence of the wrongful act com- plained of, see the cases cited in the notes to Vicars v. Wilcocks, 2 Smith's Leading Oases (8th ed.), p. 553. 189. See also No. 178, supra, and No. 205a, infra. 189a. As to remoteness of damage or consequential loss in actions of collision generally, see p. 1753 ; as to losses or damage after collision, Ibid. p. 1757; and as to loss of market, Ibid. p. 1767. 2. In Actions of Damage to Oargo.t 1. Generally. 190. In an action under the Admiralty * (92) As to the measure of damages in cases of tort, see Mayne on Damages, 4th ed. p. 41. t (93) Damage is said to be too remote where, although arising out of the cause of action, it does not so immediately and neces- sarily flow from it as that the offending party can be made responsible for it. Ibid. p. 44. (93a) See also notes 78, 88, and 89, supra. X (94) The measure of damages for the breach of a contract for the carriage of goods is their value at the place of delivery. Laurent v. Vaughn, 30 Vt. (1 Shaw) 90; Ingledew v, Northern Railroad Co., 7 Gray (Mass.) 86 Michigan, &c. R. M. Co. v. Caster, 13 Ind. 164 Dean v. Vaccaro, 2 Head. (Term) 488 Worthen v. Willmott, 30 Vt. (1 Shaw) 555 ; Taylor v. Collier, 26 Geo. 122 ; Davis v. New York, &c. R. R. Co., 1 Hilton (N. T. C. P.) 543. [American.] (95) Qucere, as to the rule when the place of destination is beyond the terminus of the defendants' route. Michigan, &c. R. R. Co. v. Caster, 13 Ind. 164. [American.] (96) And with interest thereon from the day when they should have been delivered. Sherman v. Wells, 28 Bart. (N. T.) 403. [American.] (97) Deducting freight and other expenses of transportation. Atkinson v. Steamboat Castle Garden, 28 Miss. (7 Jones), 124; Michi- gan, &c. R. R. Co. v. Caster, 13 Ind. 164 ; Taylor v. Collier, 26 Geo. 122 ; Davis v. New York, &c. R. R. Co., 1 Hilton, (N. T. 0. P.) 543. [American.] (98) In cases of breach of contraot of affreightment the measure of damages is, in case of loss, the value of the goods at the time and place of shipment, and in case of damage, the diminution of value by reason of the injury, with interest thereon to the time of judgment, including all proper charges, and the premium of insurance where it has been paid. 1 Conkling's Adm. Prac. (2nd ed.) 242 ; Smith v. Richardson, 3 Caines, 219. [American.] (99) In a case of breach of contract of affreightment by damage to goods, no inte- rest allowed. Dusar v. Mungatroyd, 1 Wash. 0. 0. E. 13 ; Oilpins v. Consequa, 1 Peters, C. 0. E. 86 ; Witlings v. Consequa, ibid. 172 ; Youqua v. Nixon, ibid. 221 ; Wilkinson v. Laughton, 8 Johnson, 213. Sed contra, King v. Shephard, 3 Story, 349 ; 1 Conkling's Adm. Prac. 242. [American.] (100) The vessel was wrecked and the goods stolen at an intermediate port. Held, that the measure of damages was the value of the goods at that port with interest. King v. Shephard, 3 Story, 349. [American.] (10i) Where the goods had been carried to the place of destination and there lost, held, that the measure of damages was the value at the place of destination, less freight and duties". TheCassius, 2 Story, 81. [American.] (102) Held, that the net value of the goods at the place of their destination was the mea- sure of damages. Wilkinson v. Laughton, 8 Johnson, 213 ; Amory v. McGregor, 15 John- son, 21. [American.] (103) The measure of a carrier's liability for_ property destroyed by his negligence, which has not been the subject of traffic, is the fair value of the property at or near the place of its destruction. Harris v. Panama R. R. Ca., 3 Bosw. (N. T.) 7. [American.] (104) The same measure of damages is not applicable to all cases of short delivery. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1739 Court Act, .1861, for damage to goods, before the court will make a decree tlie amount must have been ascertained by a reference to the registrar and mer- chants. The St. Cloud, Br. & Lush. 4; 8 L. T. N.S. 55 ; IN. E. 244. 191. In estimating the damages due to an assignee of a bill of lading for injury to his goods, a resale by him of the goods before delivery cannot be taken into ac- count. Ibid. 192. On reference of accounts to the registrar and merchants in a cause of damage to cargo, the court directed them to be guided in the estimate of the mea- sure of damages by the cases of Josling v. Irvine, 4 L. T. N.S. 251, and Peterson v. Ayre, 13 0. B. 353 ; The St. Cloud, Br. & Lush. 4 ; 8 L. T. N.S. 55 ; 1 N. E. 244 ; but see No. 203, infra. 193. In an action on contract, held, on motion to reduce damages, that the mea- sure of damages was the difference be- tween the contract price and the market price at the time of the breach. Josling v. Irvine, 4 L. T. N.S. 251 ; Boswell v. Kilborn, 8 Jur. N.S. 443 ; 6 L. T. N.S. 79, P. C. ; 10 W. E. 517. 194. The measure of damages in the case of a breach of contract to deliver foods at a specified time is the difference etween the contract price and the market price at the time of the breach of contract, or the price for which the vendee had sold ; but the latter cannot recover, as special damage, the loss of anticipated profits to be made by his vendees. Peter- son v. Ayre, 13 C. B. 353. 195. Where goods are delivered to a carrier to be carried from A,, to B. and are lost, the owner is entitled to recover the value of the goods at B., and that value is the price at which they can be got to, not at, B. Rice v. Baxendale, 7 H. & N. 96. 196. A vessel got aground in the course of the voyage, and part of the cargo (rice) was thereby damaged, and it became necessary to throw other parts of it overboard. The vessel subsequently put into the Mauritius for repairs, where the damaged portion was sold. Held, that in the absence of affirmative proof that the grounding was owing to the negligence of the pilot (not compulsorily taken), or to want of prudence of the master, there ought to be no deduction from the lump freight on account of non- delivery, as it must be taken to have arisen from perils of the sea. The Nor^ way, 3 Moore, P. 0. 0. N.S. 245 ; 2 Asp. 17, 56, 168; 5 N. E. 140, 147; 11 Jur. N.S. 892 ; 13 W. E. 296 ; 12 L. T. N.S. Adm. 57; 13 Ibid. 50, 1085. 197. In an action to recover damages resulting from unreasonable delay in the Whenever the deficiency has arisen from the negligence of the master or owners the mea- sure of their liability seems to be the sound value of the goods at the time and port of delivery. But if the damage and necessary disposal occur through perils of the sea, and not in consequence of any fault of the master or owners, the proprietor of the goods is entitled to what they sold for, and no more. Maclachlan on Merchant Shipping, 3rd ed., p. 439. (105) When goods shipped on freight are damaged by water, so as to be valueless and unsaleable, the- shipper is not bound to send them to auction to be sold, as a pre- requisite to his right of action. But where the goods are of value, either party has a right to require a sale by auction, and the expenses will form part of the costs. Elkin v. New York, &c. Co., 14 La. Au. 647. [Ame- rican.] (106) In a case where no invoice of the cargo existed and where a bill of lading weight was shown, the registrar and mer- chants will be guided as to the quantity of cargo by their experience in former cases. The Era, April, 1882. E. & M. (107) As to whether the goods so sold are to be paid for Bhould the vessel not reach her port of delivery, see ibid, and the authorities there cited. (108) In a cause of damage to cargo the plaintiff claimed the difference between the price at which the cargo (wheat) was sold in its damaged state and the price at which it would have sold had it arrived in good order, and the interest thereon. The defendant ob- jected that the claim should be reduced to the difference between the price at which the wheat was sold, and the price at which, prior to its arrival, the plaintiffs had sold it to a third party. Objection overruled; and in- terest allowed as claimed. The St. Cloud, April, 1865. E. & M. (109) A perishable cargo was not sold when it appeared possible that the delay necessary for repairing the vessel would cause further depreciation. The registrar allowed the dif- ference between the price the cargo would have realized if sold at the port of repair and the price it would have realized if the voyage had been uninterrupted. H. L. South, June, 1882. E. & M. (110) An average statement, if not objected to, will be received by the registrar and mer- chants as evidence, and will bo used in ad- justing cargo claims. The Upupa, May, 1882. E. & M. 5 T 2 1740 REGISTRAR AND MERCHANTS. Pt. II. Damages. carriage of goods by sea, compensation allowed for deterioration in the quality of the goods and for loss of interest on the invoice value of the goods during the period of delay. The Parana, 1 P. D. 452 ; 2 P. D. (0. A.) 1 1 8 ; 45 L. J. Adm. 108 ; 3 Asp. N.S. 220 ; Ibid. (0. A.) 399; 36 L. T. N.S. 388. 197a. The defendant, under a hill of lading, agreed to carry goods which he knew generally consisted of machinery intended for a mill to be erected in British Columbia. The defendant having failed to deliver the goods, held, that the measure of damage was the cost of re- placing the lost goods at British Columbia, and the freight and interest on the amount for the time the plaintiffs were delayed. British Columbia Saw Mill Co. v. Nettle- ship, L. E. 3 C. P. 499 ; 37 L. J. C. P. 235. 198. Held, also, that the defendant was not liable for the loss sustained through the stoppage of the mills until the machinery was replaced. Ibid. 198a. The general knowledge of the defendant that the machinery was going to be employed in the mill was not suffi- cient to render him liable for the loss sustained by the stoppage of the mills. Knowledge must be brought home to the party sought to be charged under such circumstances, so that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it. Per "Willes, J., Ibid. 199. The measure of damages for the non-delivery of goods, paid for at the time of purchase, is the difference between that price and the highest price the goods have attained up to the time of trial. Elliot v. Hughes, 3 F. & P. 387. (Byles.) 199a. The measure of damages as to goods injured by the neglect or default of the master or owners, i. e. bad stowage, the unseaworthiness of the ship, &c, and sold at an intermediate port, is the value of the goods in a sound state at the port of delivery, and at the time when in ordi- nary course they would have arrived there. Blythe v. Smith, 5 M. & Gr. 405 ; Worms v. Storey, 11 Exch. 427 ; 25 L. J. Exch. 1 ; Atkinson v. Stephens, 7 Exch. 567 ; Hallett v. Wigram, 19 L. J. C. P. 281; Alers v. Tobin, cited in Maclachlan on Merchant Shipping (3rd ed.), p. 440, n. 200. Or, at the election of the owner of the goods, the price they sold for at the intermediate port. Richardson v. Nourse, 3 B. & A. 237. 200a. Shipowners were held liable for short delivery of wheat, but there had been delay on the part of the consignees in making their claims. The wheat actually delivered had been damaged on the voyage by causes for which the ship- owners were not responsible. Held, that under the circumstances the measure of damages for the quantity undelivered must be arrived at by taking the average of the prices realized by the sale of the damaged quantity delivered. Shankland, Sfo. v. Othya ty Co., 3rd Series, vol. 3, p. 810. [Scotch.] 201. In estimating the value of a perish- able cargo, such as potatoes, the court will value it at the highest market price which the evidence proves could have been obtained, on the principle that the defendant should make good, at the high- est market price, any loss sustained. The Scotia, 4 Jur. N.S. 156. [Irish.] 201a. On a reference to the registrar and merchants in an action of damage to cargo, held, that the defendants were en- titled to better evidence of the value of the cargo than the bills of lading and invoices. The John Bellamy, L. B. 3 A. &E. 129; 3 Asp. 360. 202. As to the value of cargo in causes of damage by collision, see p. 1750. 202a. In cases of costs and damages, see p. 1776. 2. Loss of Market* 203. The difference between carriage * (111) In cases of carriage by land, a fall in the market value of goods between the date at which they should have been, and that at which they were, delivered has been held recoverable, according to the difference in the market values at those two periods, but this principle does not apply to carriage by sea. Mayne on Damages, 4th ed. pp. 14, 15. (112) The market price at the time of the breach of the contract, and not exceptional sales, is the proper criterion for the estimate of damages. Thompson v. Howes, 14 La. Au. 45. [America^.] (1 13) But in determining such value it would seem that the jury may consider the fact that the property has a market value, at a place other than that where it was destroyed, and to which it was destined, and towards which the carrier, in the course of the usual and regular communication with such place, was then taking it, in connection with the hazards REGISTRAR AND MERCHANTS. Pt. II. Damages. 1741 of goods by sea and land is obvious. In order that damages may be recovered two conclusions must be come to ; first, that it was reasonably certain the goods would not be sold until they arrived ; and, secondly, that it was reasonably certain they would be sold immediately after they arrived, and that these were known to the carriers, but the practice in regard to goods sent by sea is opposed to both these conclusions. The Parana, 2 P. D. 118, reversing the decision of the court below, and confirming the report of the registrar and merchants in 1 P. D. 452 ; 45 L. J. Adm. 108 ; 3 Asp. N.S. 220, 399. 203a. Held, by the Court of Appeal, reversing the decision of the Admiralty Court, that no damages could be recovered for loss of market. Ibid. 204 . Hops were sent to a railway station to be carried by the company to London ; during the journey the hops became wet, the consignee refused to take them in that condition, and it required seven or eight days to dry them ; in that interval, the market price had fallen. In an action against the company for not taking due care, held, that the plaintiff was entitled to recover for the damage the hops had sustained, and also for the difference in the fall of the market price, from the time when they should have been delivered to the time when they were afterwards de- livered, dried. Cottard v. South Eastern Railway Co., 7 Jur. N.S. 950 ; 30 L. J. Exch. 393 ; 9 "W. E. 697 ; 4 L. T. N.S. 410 ; 7 H. & N. 79. 204a. If goods are delivered too late by a carrier, the owner ought instantly to sell at market price and realize his loss ; and the difference between the price he ob- tains by the sale at that time, and that which he would have obtained, is the measure of damages. Simmons v. South Eastern Railway Co., 7 Jur. N.S. Exch. 849. 205. Damages allowed for loss of mar- ket through delay in delivering a cargo of barley. Gifford Sr Co. v. Dishington Sc Co., 3rd Series, vol. 9, p. 1045. [Scotch.] 205a. The measure of damages payable by railway carriers who have received goods, ordered by the plaintiff from his correspondent living at a distance, and delivered to the company directed to the plaintiff, but not delivered to the plaintiff until the season for them was past, is the difference between the exchangeable or marketable values of the goods at the time when they ought to have arrived, and that value when they actually arrived. The loss of profits which the plaintiff would have derived from making up these goods into articles of sale, and dis- and expenses attendant upon the residue of the intended voyage. Harris v. Panama R. R. Co., 3 Bosw. (N. T.) 7. [American.] (114) When goods are destroyed or mate- rially injured on board a vessel in the port where they are shipped, the damages must be ascertained by the difference between the prime cost and charges and the sales at the port of shipment, and not by the probable profits if the goods had gone safe to the port of destination. Dusar v. Mungatroyd, 1 Wash. 0. 0. 13. [American.] (115) Where delivery of the goods has been delayed, but they have not been con- verted by the carrier, the measure of da- mages is not the value of the goods, but the loss occasioned to the plaintiff by the delay in the delivery. (Wells, J., dissenting), Briggs v. New York Central Railroad Co., 28 Barb. (N. Y.) 515. [American.] (1 16) It is a settled rule that no damages are to be awarded on account of the possible or probable profits which might have accrued to the shipper if the goods had gone safe to the port of delivery. 1 Oonkling's Adm. Prac. 2nd ed. 241, 460; see also The Tribune, 3 Sumner, 144, 151. [American.] (117) A vessel, having on board a cargo of flour for transportation, capsized at her wharf before sailing, and the cargo was much damaged. The carriers might easily have communicated with the owners of the cargo, and sought instructions as to the disposal of it, but they neglected to do so, and sold the cargo upon their own authority at auction, after which the vessel sailed, and in due time arrived at the port of delivery. Held (1), that the sale of the flour under these circum- stances was an unlawful conversion hy the carrier; (2), that the owners of the cargo were entitled to recover the value of the cargo , at the port of delivery, deducting freight and charges, and adding interest on the balance ; (3), that the value of the cargo should be computed by the market price at the port of delivery at the time of the arrival of the vessel, it appearing that, except for the acci- dent, the cargo would at that time, in the ordinary course of things, have been delivered, with a privilege, however, to the owner to claim the amount realized upon the sale of the goods at auction. The Joshua Barker, 1 Abb. Adm. 215. [American.] (118) When a railroad company is sued for negligence in respect to the non- delivery of goods within a reasonable time, the measure of damages is not the decline in the price between the day when they should have been delivered and the day they were delivered. Jones v. New York, &c. R. R. Co., 29 Barb. (N. T.) 633. [American.] (119) See also notes 81, 82, 86, 87, supra. i742 REGISTRAR AND MERCHANTS. Pt. II. Damages. posing of them, cannot be taken into account. Wilson v. Lancashire and York- shire Railway Co., 9 C. B. N.S. 632 ; 7 Jur. N.S. 862 ; 30 L. J. C. P. 232 ; 9 W. E. 635 ; 3 L. T. N.S. 859. 206. In an action against a carrier for the loss of a parcel of goods, the measure of damages is, in general, the market value of the goods at the place and time at which they ought to have been de- livered. If there is no market for the sale of such goods at the place, then the jury must ascertain their value, by taking ' the price at the place of manufacture, to- gether with the cost of carriage, and allowing a reasonable sum for importer's profit. O'Hanlan v.' G. W. Rail. Co., 34 L. J. Q. B. 154; 6 B. & S. 484. 206a. The plaintiff, a manufacturer accustomed to attend agricultural shows, and make a profit out of exhibiting his goods, delivered them upon a show ground where he had been exhibiting them to the defendants, to be carried by a certain day to a show ground at another place, where he intended to exhibit them, but nothing was expressly said about his intention to do so. The goods did not arrive until after the show was over, and after the time stipulated for. The plain- tiff lost some days in going to meet, and waiting for, his goods. In an action for breach of covenant, held, the court draw- ing the inference of fact that the purpose of the plaintiff to exhibit was within the contemplation of the parties to the cove- nant, that the plaintiff was entitled to . damages, on the ground that loss of profit was a natural and probable result of the breach. Held, also, that no evidence was necessary of his prospect of making profit at the particular show in question. Simp- son v. London and N. W. Rail. Co., 1 Q. B. D. 274 ; 45 L. J. Q. B. 182. See also Nos. 174—184, 192—195, and 201, supra. 3. Interest.* See Nos. 197, 197a, supra. 3. In Actions of Damage by- Collision. 1 . Generally.] 207. In cases of damage the general principle is, that a person who is damaged by the fault of another is entitled to a full compensation for such damage and loss. The Matchless, 10 Jur. 1017. 207a. The general rule is, that a vessel doing damage to another is liable to make full compensation. The Girolamo, 3 Hagg. 186 ; The Dundee, 1 Hagg. 109 ; The Clara, Swabey, 1 ; 2 Jur. N.S. 46 ; 26 L. T. 165 ; The Wild Ranger, 1 Lush- ington, 553 ; 7 L. T. N.S. 725 ; 32 L. J. N.S. Adm. 56 ; 1 N.E. 32 ; 11 W.E. 255. 208. The party to blame is considered a wrong-doer, and the party injured is entitled to restitutio in integrum — full and complete indemnity for the losses sustained. The Ironmaster, Swabey, 443; The Clyde, Ibid. 24. 209. Oases of insurance are cases of contract, cases of damage by collision are cases of tort. The two classes of cases * (120) See notes 96, 98—100, 108, supra. t (121) In proceedings in rem in a cause of damage by collision, the plaintiff cannot ordinarily recover more damages than the amount in which the action has been entered and bail given. But see tit. Practice, p. 1492. (122) Or than the value of the ship, if left under arrest. But see Ibid. p. 1495. (123) In the Court of Admiralty, when there has been misconduct on the part of both vessels in a collision, the sum total of the joint damage is payable by the two in equal shares. See tit. Collision, p. 204. (124) But where one vessel is in charge of a pilot, taken by compulsion of law, her owners receive half, but pay nothing. See No. 221 in text. (125) Matter of a merely collateral nature cannot be given in reduction of damages. For instance, the action being as for injury caused by collision at sea, the defendant was not allowed to deduct from the amount of loss proved any money paid to the plaintiff by his insurers in respect of the same damage. This would be to make the wrong- doer pay nothing and take all the benefit of the insurance without the burthen of the premium. Mayne on Damages (4th ed.), p. 396. (126) Claim for damage by a barge fouling the stern of a steamer lying moored. It was improbable that the barge would have in- flicted the whole of the damage claimed for, but in the absence of proof that the damage had been otherwise inflicted the claim was allowed. The Dodo, Feb. 1882. E. &M. (127) Exemplary damages may be given for a wilful collision. Smyrna, &c. Steamboat Go. v. Whilldin, 4 Harring. 228 ; Ralston v. The State Rights, Crabbe, 22. [American.] (128) In"acaseof collision, if exemplary damages are claimed, evidence may be given of acts prior to the injuries complained of, but must be confined to such acts. Ralston v. The State Rights, Crabbe, 22. [AMERICAN.] (129) Allowance made for deterioration in the value of a vessel from collision. The James of Rye, March, 1854. E. & M. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1743 therefore stand upon totally different grounds. In the former the claimant re- covers pursuant to his contract, including the custom of merchants, of which he is to he presumed to he cognizant. In the latter the claim arises ex delicto, and the indemnification ought to he co-extensive with the damage — restitutio in integrum. If the settlement of the indemnification is attended with any difficulty the wrong- doer must hear the inconvenience. If the claimant derives incidentally a greater benefit than mere indemnification, that arises only from the impossibility of effect- ing indemnification without exposing him to some loss or burden which the law will not place upon him. The Gazelle, 2 W. Bob. 281 ; 8 Jur. 429 ; 3 Notes of Cases, 75. 210. An action for damage is an action to recover the loss actually suffered in consequence of the collision, and the party aggrieved is entitled to be put, as far as practicable, in the same condition as- if the wrong had not been suffered. The amount of damage may be direct, as the cost of the repairs, or consequential, as where a fishing voyage is lost, or the vessel might have been beneficially em- ployed, but in all these cases the plaintiff must allege and prcve that he has sus- tained an actual loss, and he must also offer the means of ascertaining the amount. The Clarence, 14 Jur. 557; 3 W. Bob. 283 ; 7 Notes of Cases, 579. 211. The rules and principles which guide other courts on the question of abandonment in insurance cases, do not apply to the Court of Admiralty in cases of collision. The Columbus, 3 W. Eob. 165; 13 Jur. 285; 6 Notes of Cases, 671. 212. "When the evidence on a question of damages is nicely balanced, neither the court nor the registrar and merchants are justified in dividing the loss between each party, but judgment must be given according to the balance of evidence, bearing in mind on whose side the burthen of proof lies. The Agnes, No. 948, April 16, 1862; The Egyptian, 10 L. T. N.S. 910. 213. If a vessel is strained in conse- quence of encountering tempestuous wea- ther, and owing to such straining she, in a collision, receives greater damage than she would under ordinary circumstances have suffered, the defendant is liable for the whole damage. The Egyptian, 10 L. T. N.S. 910. . 214. A successful plaintiff in a cause of damage is entitled to he reimbursed by the defendant to the extent, hut only to the full extent, of the damage oc- casioned. Ibid. 215. It was sworn that certain articles were lost or destroyed by the collision. The registrar and merchants were of opinion that the collision could not have occasioned their loss or destruction, and disallowed the item. On objection to such disallowance the court referred the item back for reconsideration, with directions that the amount should be allowed if the registrar and merchants could not come to the conclusion that such a loss by the collision was impossible. H. M. S. In- flexible, Swabey, 202 ; but see Anderson v. Hoen {The Flying Fish), No. 284, p. 1755. 216. The burden of proving the damage done lies in the first instance upon the plaintiff ; and it is then for the defendant to show that, notwithstanding prima facie evidence to the contrary, there was another and concurrent cause to which the damage may be attributed. Ibid. 217. "When a collision has taken place, the general inference is that the damage accruing was caused by the collision, and the burden of proof is on those alleging that any part of the damage arose from subsequent want of skill in the crew of the damaged vessel. The Linda, Swabey, 307 ; 30 L. T. 234 ; 4 Jur. N.S. 146 ; 6 W. E. 196; The Pensher, Swabey, 211, 215; 29 L. T. 12; but see Anderson v. Hoen, The Flying Fish, No. 284, p. 1755. 218. "When a wrong has been com- mitted, the wrongdoer must suffer from the impossibility of accurately ascertain- ing the amount of damage. Leeds {Duke) v. Amherst, 20 Beav. 239 ; The Egyptian, 10 L. T. N.S. 910. 219. Even though the injured vessel may have been, at the time of collision, in such a condition that the collision occasioned an unusual amount of damage, a wrongdoer is nevertheless responsible for all the consequences. The Egyptian, 10 L. T. N.S. 910. 220. If a portion only of the damage is clearly attributable to the wrongdoer, and that portion cannot be distinguished from the rest, the wrongdoer is respon- sible for the whole damage. Ibid. ; but see Anderson v. Hoen, The Flying Fish, No. 284, p. 1755. 221. "Where in an action of collision it is held that it was occasioned by the fault of both vessels, hut one of such vessels is exempt from liability on the ground of compulsory pilotage, the latter vessel is entitled, by the Admiralty Court rule, to recover half the damages sus- 1744 REGISTRAR AND MERCHANTS. Pt. II. Damaged. • tained by her in the collision, and is not .limited to the difference between half her damage and half the damage of the other ship. The Hector, 8 P. D. (C. A.) 218; 52 L. J. P. D. 51 ; 5 Asp. 101. 222. A claim by the owners of a damaged vessel made at a low estimate, and for the purpose of avoiding liti- gation and of obtaining prompt and immediate payment, does not bind the party after its rejection, or bar him from proving that such estimate was far below the amount of damage actually sustained. The report of the registrar and mer- chants, adopting the original estimate as conclusive evidence of the damage, sent back for further consideration. The Two Sisters, 1 Spinks' Eccl. & Adm. Eep. 102. 223. In an action for damages by collision, held, that the defendants were not entitled to deduct the amount of damage received by the plaintiff from insurers. Yates v. White, 4 Bing. N.S. 272 ; 5 Scott, 640 ; Jones v. White, 2 Jur. 363 ; 1 Arn. 85 ; and see Mason v. Sains- bury, 3 Dougl. 60. 224. As to the division of damages when both vessels are to blame for a col- lision, see tit. Collision, p. 204. 2. Vessel lost.* 225. In case of total loss, the plaintiff is entitled to the market value of the skip * (130) A t ship's sails and stores are con- sidered to be included in her value, and no separate allowance will be made for them. The Fidelia, April, 1858 ; The Tuscarora, July, 1858; The Newport, Swabey, 344. E. &M. (131) An owner claiming for a total loss is entitled to more than the mere selling value of his vessel before the collision. The Hel- vetia, No. 4072, Feb. 1869. B. & M. (132) In the assessment of damage by colli- sion, the diminished value of the vessel after being repaired is to be taken into account. Haldermanv. Beckwith, 4 McLean, 286; Bar- rett v. Williamson, ibid. 589. [American.] (133) In estimating the value of nearly new vessels, it is usual to make a deduction of 12 per cent, per annum from their cost price. (134) In dealing with claims for the loss of tug boats, the registrar remarked upon the cost of keeping a London tug in a state of efficiency, and instanced the fact that £2,448 had been, in the course of eight years, expended in the repairs of such a vessel. The Cricket, February, 1882. E. & M. (135) A vessel seriously damaged by colli- sion was treated as a constructive total loss, and sold by her owners. The propriety of this step was not questioned by the wrong-doer, but as there had been unnecessary delay in arriving at a determination to sell the vessel, the extra expenses occasioned by the delay were disallowed. The Queen of the Hast, Jan. 1882. E. & M. (136) In causes of damage by collision, when the ship is lost, the usual proofs of her value filed are inter alia her register ; if she was a comparatively new vessel, affidavits of her classification at Lloyds, if she had a good class ; affidavits of the different occa- sions of her having been repaired, and the amounts spent in the repairs, particularly on the last occasion ; affidavits as to her value from persons experienced in shipping, and who had seen her shortly before she was lost. (137) Affidavits of shipwrights of standing and experience, setting forth the amount for which they would build a new vessel of the same class, size, and equipment, are useful in proof of the value of nearly new vessels. (138) Scientific evidence of a ship's value is received when the ship is registered at Lloyds, but is not relied on when the ship is not so registered, and is of a special build for a special trade. (139) Affidavits of shipwrights and others experienced in shipping, deposing to her value from the particulars contained in her register and classification at Lloyds, are often filed for want of better proofs, but do not carry much weight with them. (140) The owners of the vessel held to blame cannot diminish the allowance of her market value by proving her actual worth to be less because of her age, imperfect build, or the state of her timbers. The New Jersey, Olcott, Adm. 444. [American.] (141) The H., a steamer two years old at the time of her loss, had been built in 1879 at a cost of £20,500. The registrar and mer- chants, recognizing the enhanced cost of labour and materials after the date of build- ing, allowed £20,000 as her value at the time of her loss. The Leon, April, 1882. E. & M. (142) £14,000 were claimed for the loss of a steamer of 577 tons net register, 901 gross, and 99 nominal horse-power, seven years old, and classed at Lloyds 90 Al. The sum of £10,000 was awarded. The Andalusia, April, 1882. E. & M. (143) A schooner, between seven and eight years of age, classed for thirteen years, had passed her half-time survey, at a nominal ex- pense, nine months before her loss. She was built in excess of Lloyds' requirements, and had originally cost £2, 280. Plaintiffs claimed £1,830, and defendants valued her at about £1,000. The registrar awarded £1,400. The Blanche, May, 1882. E. & M. (144) A vessel of 340 tons, built at New Brunswick in 1864 at a cost of £3,185, re- paired in 1879 at a cost of £600, and there- upon classed black diphthong at Lloyds, was valued by her owners in 1881 at £1,650. Th^defendants filed affidavits valuing her at REGISTRAR AND MERCHANTS. Pt. II. Damages. 1745 just prior to the collision. The Iron- master, Swabey, 443 ; The Clyde, Swabey, 23; The Columbus, 3 W. Eob. 164; 6 Notes of Oases, 671 ; 13 Jur. 285. 226. The 0. 8. was damaged by col- lision in Hobson's Bay, Victoria. Her master sold her there instead of repairing her. Her owner claimed the value of the vessel previous to the collision, less the nett proceeds of her sale. Held, that the master in selling the vessel had acted as a prudent owner, if on the spot and uninsured, would under the circumstances have done, and the claim allowed accord- ingly. The South Sea, Swa. 141. E. & M. 227. In a causo of collision, the de- fendants' vessel was sold by the court, and the proceeds were insufficient to pay the plaintiff's claim. Held, that the ex- penses of sale and possession fees formed a proper deduction from the gross pro- ceeds, and that the defendants could not, therefore, be called upon to repay them. The Europa, 9 L. T. N.S. 781. 228. In estimating the value of a ship lost by collision, the best evidence is the opinion of competent persons who knew the ship shortly previous to the time it was lost. The Ironmaster, Swabey, 443. 229. The second best evidence is the opinion of persons conversant with ship- ping, and the transfers thereof. Ibid. 230. Many other circumstances may be called in aid, — as the original price of the vessel, the amount of repairs done to her, the sum at which she was insured, and the like ; but these facts have a slighter bearing upon the case. Ibid. 231. The evidence, as to value, of men of experience who have seen the vessel is to be preferred to that of persons who have not seen her. The Clyde, Swabey, 32. 232. The owner's affidavit of prime cost, unsupported by documentary proofs, is not sufficient evidence to produce legal conviction. Ibid. 233. In a case of total loss from colli- sion, it is the duty of the court to award the full value of the ship, as she lay at the moment before the collision occurred. In doing so the court will estimate her true market value, considering her age, the several repairs she had undergone from time to time, and the amount for which she was insured, at the date of the accident. The Cumberland, 5 Jur. N.S." 399. [Irish.] 234. Claim of £2,800, as the value of the ship reduced by the registrar and merchants to £1,830. On objection to their report, the evidence for the claimant being his own affidavit of prime cost un- supported by documentary proof, and affidavits of experienced persons in his neighbourhood who had not seen the vessel ; and against the claim, affidavits of experienced persons in London who had also not seen her, the court confirmed the report withont costs. The Clyde, Swabey, 23. 235. Three shipwrights who had in- spected the vessel deposed to her value as £540. On the other side the affidavit of a shipwright was produced deposing to her value as from £750 to £800. Held, that the value of the vessel was £540. The Mellona, 3 W. Eob. 24 ; 6 Notes of Oases. 69 . 236. In valuing a ship in order to fix the limit of her liability under 53 Geo. 3, c. 150, held, that the value of the ship is the price at which she could be sold, which price must be ascertained, not by making deductions from her cost price proportioned to her age, but by a valua- tion and appraisement. Dobree v. Schroe- der, 6 Sim. 291 ; 2 Mylne & C. 489. 237. And that her value, under ordi- nary circumstances, under the M. S. Act, 1854, Pt. IX., will be taken to be what the ship would have fetched if sold im- mediately before her loss. African Steam- ship Co. v. Sioanzy, 2 K. & J. 660 ; 25 £800 or £900, but the registrar and mer- chants allowed £1,370, on the ground that she must have been a good vessel to have been reclassed so late as 1879. The Rothesay, April, 1882. E. & M. (145) A Cornish schooner of 133 tons, built in 1864, and classed Al for twelve years, passed her half-time survey in 1871 at a cost of £279. In 1876 her class was con- tinued for eight years at a cost of £496, and she passed her half-time survey in 1880 — 81, when £332 were expended upon her. She was lost in March, 1881, and a claim of £1,200 made. Defendants valued her at £650. £1,000 awarded. The Lady Muthven, April, 1882. E. & M. (146) Evidence as to the market value, in an English port, of a foreign vessel, which had been lost by collision, rejected by the registrar and merchants, who declined to adopt her estimated value in an English port. The Oyanus, January, 1884. E. & M. (147) In assessing the value of a vessel lost through collision, the registrar took into consideration the fact that her insurance had been prepaid, as the insurance was an ele- ment in the value of the ship if she had been put up for sale by auction with the benefit of such insurance. The India, Feb- ruary, 1885. E. & M. 1746 REGISTRAR AND MERCHANTS. Pt. II. Damages. L. J. Ghana 870 ; Leycester v. Logan, 4 K. & J. 725. 238. A vessel -was purchased in Dec. 1852, for £12,900. The collision occurred in October, 1854, at which time she was insured for £10,000. Valuations were brought in, some to the amount of £6,000, others to £4,000, and Mr. Bailey, a valuer appointed by both parties, valued her at £5,900. ■ Held, that the value of the vessel was £5,900. African Steamship Co. v. Sivanzy, supra. 239. As to what are appurtenances to a ship, see tit. Owners, p. 1216. 240. As to value of ship in causes of possession, see No. 130, p. 1731. 241. In cases of costs and damages, see p. 1775. 3. Vessel repaired?' 242. The owners of a ship damaged by collision are entitled to the full expenses * (148) When the value of the vessel injured is only impaired, the measure of damages will be the sum required to reinstate her to the condition she was in at the time of colli- sion ; if she is a total loss her market price or value at the time will be the criterion. The New Jersey, Olcott, Adm. 444. [Ame- rican.] (148a) The registrar and merchants will not hold themselves bound by a contract which, in their opinion, is improvident, and in such a case, having ascertained by an in- spection of the shipwright's books the actual costs of the repairs, with materials and labour, they added dock dues, an allowance for use of machinery and other general charges, and a profit of 25 per cent, on the whole. The Elephant, Feb. 1884. E. & M. (149) The value of old materials should be allowed for in the bills for repairs, or a de- duction for them will be made by the regis- trar and merchants. (150) Insurance of ship during repairs not allowed. The Elizabeth Moore, 1854. E. &M. (1 50a) The charge for caulking ought never to be more than 4s. per ton. The Hadding, June, 1859. E. & M. (151) Bottomry premium on money re- quired for repairs occasioned by collision not allowed as against defendants in a cause of damage. The Aberfoyle, June, 1861; The Diana, July, 1861 ; The Hope, Nov. 1854. E. &M. (152) Surveys should not be drawn up by the surveyor's solicitors. Charges for pre- paration thereof disallowed. The Joseph Somes, 1857 ; The Christiana, ibid.; The Al- bert, April, 1859. E. & M. (153) A vessel which had been damaged by collision was dry-docked for repairs, and certain damage previously unknown to the owner and not consequent upon the collision was thereby revealed. Although the vessel was necessarily dry-docked in order to re- pair the collision damage the registrar and merchants, being of opinion that a prudent owner cognizant of the other damage would have dry-docked his vessel for repairs irre- spective of the collision, disallowed a portion of the dock charges. r £he Minnie, No. 5783, January. 1872. E. & M. (154) It being admitted on a reference that a steamer, in consequence of touching the ground at the commencement of her voyage, would have been dry-docked at the end of her voyage, the labour and expense of dock- ing were disallowed as against a steamer which had damaged her during the voyage. The Scaham Harbour, March, 18,82. E. &M. (155) A wooden vessel which had had her false stem started over to port was placed in dry dock in order that the injured portion might be removed for the purpose of inspecting the main stem. This proceeding was objected to on the ground that the work might have been performed afloat by tilting the ship. Held, that the plaintiffs were justified in docking. The Bradley, March, 1882. E. &M. (155a) The dry docks of a port being un- available for a lengthened period, held, that the owners of a damaged vessel were wrong in detaining their vessel at such port until one of the dry docks was available, and that she ought to have been removed to a neigh- bouring port. The Elgin, May, 1884. E.&M. (156) In a somewhat similar case the ex- pense of constructing a temporary gridiron was allowed. The Levenvale, Ibid. ( 1 56a) The G. E. , in the prosecution of her voyage, ran aground in the Elbe, but got off again, and, whilst lying athwart, was run into and dam aged above the water-line. She was repaired in dry dock, but the charges for docking and undocking, scraping and paint- ing were disallowed, on the ground that they were solely necessary in consequence of the grounding. A m oiety of the dock-rent, how- ever, was allowed, as it was considered right and proper when she was in dock to keep her there for collision repairs. The Edward Ecclee, June, 1883. E. & M. (157) A dredger belonging to a dock board was placed in a dry dock belonging to the board to execute collision repairs. Claim for dock dues objected to on the ground that the board were not entitled to charge such dues on a vessel of their own. Seeing that the dredger occupied space which might have been profitably filled by other vessels paying dock dues, the registrar and merchants con- sidered that the objection could not be sus- tained. The Clarence, Nov. 1883. E. & M. (158) Where it was necessary to place a vessel on a slip to execute collision repairs, the registrar allowed the slip dues, notwithstand- ing the fact that the owners had embraced REGISTRAR AND MERCHANTS. Pt. II. Damages. 1747 of repairing her and fitting her for sea, though such repairs may make her more valuable than she was before the collision. If the charges are extravagant they must the opportunity to paint the ship's bottom, that operation not being rendered necessary by the collision. The Rieher, August, 1883. E. & M. (159) Where a vessel was repaired under a contract which contained a penalty for delay in the completion of the repairs, and the time was exceeded, the registrar allowed, as against the defendant, the difference between the penalties recovered and the full demur- rage. The Charles Howard, June, 1882. E. &M. (159a) The propeller of a steamer was da- maged by collision, but there being no spare one on board she was allowed to make several voyages, her speed, howovor, being consider- ably reduced. Meantime a new propeller was prepared, and ultimately sent to her at Swansea. On arrival it was discovered that no means existed for fixing it at that port, and it was ultimately placed in position in the Tyne. The cost of carriage from the Tyne to Swansea was disallowed, on the ground that the plaintiffs should have in- quired as to the facilities oxisting at Swansea before sending the propeller there. The Ca- duceus, June, 1883. E. & M. (160) The damages occasioned by the col- lision were only partially repaired, the vessel being thereby put in a serviceable condition, but not restored to her market value before the collision. A sum was therefore allowed (one of the merchants dissenting) as com- pensation for the damages not repaired. The Falcon, July, 1878, 0. No. 15. E. & M. (161) The registrar will assess the amount of damages sustained by a vessel which has not been permanently repaired, and will take estimates into account for this purpose. The Plover, August, 1882. E. & M. (162) If there are no reasonable means of repairing a vessel at the port to which she is brought, and she can be safely navigated to another port where the repairs would be cheaper, the expense of repairing is to be estimated according to the cost at the latter port. Hall v. Franklin Ins. Co., 9 Pick. 466. See Parker, 0. J., in Gordon v. Mass. Ins. Co., 2 Pick. 249, 261. [American.] (162a) A vessel bound to Glasgow was da- maged in the river Clyde. After discharging her cargo she was temporarily repaired and taken to Liverpool for permanent repairs. The registrar, holding that the repairs might very well have been done at Glasgow, dis- allowed the expenses of removal. Ardeer, July, 1883. E. & M. (163) The expense of towing the vessel to her place of repair, and wharfage while re- pairing, are items of damage. Fitch v. Livingston, 4 Sandf. Sup. Ct. 492. [Ame- rican.] (163a) In the assessment of damages by collision the expenses and delay of taking the injured vessel from the place of collision to her port of destination and thence to the most suitable place for repair are, amongst other things, to be allowed. Holderman v. Bechwith, 4M'Lean, 286; Barrett v. William- son, ibid. 589. [Amekican.] (164) The owners of a ship damaged by collision, and, amongst other things, re- metalled, are not entitled, in that respect, to recover against a wrong-doer more than the value of the old metal removed. The Elgin, May, 1884. E. &M. (165) The usual method of dealing with claims for re-metalling is to allow weight for weight, new for old, with a fair allowance for what might have been torn away and totally lost by collision. The County of Cardigan, June, 1885. E. & M. (166) In estimating the measure of da- mages by collision, the vessel injured having been repaired, the evidence of experts as to their opinion of the nature and extent of the injury is not admissible, though it may be where a vessel has been run down and aban- doned. Schooner Catharine v. Dickinson, 17 How. 170. [U. S'.] " (167) Under the New York statutes giving a lien upon ships and vessels for damages occasioned by collisions, and an attachment of such ships and vessels therefor, the remedy is confined to the actual damage to the vessel injured, i.e., to the amount neces- sary to repair and put her in as good condi- tion as when the accident happened. Fitch v. Livingston, 4 Sandf. Sup. Ot. 492. [Ame- eican.] (168) For mere negligence or want of skill the damages are compensatory only; — such as will restore the injured vessel to her former condition, but not for detention, loss of profits, &c. Smyrna, &c. Steamboat Co. v. Whilldin, 4 Harring. 228 ; Ralston v. The State Bights, Crabbe, 22. [American.] But see next case. (169) The general rule of damages ap- plicable to collisions which are not wilful is, that the owner of the injured vessel is to re- ceive a remuneration which will place him in the situation in which he would have been but for the collision. The Rhode Island, 1 Abb. Adm. 100; The New Jersey, Olcott, Adm. 444 ; The Blossom, ibid. 188. [Ameri- can.] (169a) In estimating the measure of da- mages by collision, the vessel injured having been repaired, the evidence of experts as to their opinion of the nature and extent of the injury is not admissible, though it may be. where a vessel has been run down and aban- doned. Schooner Catharine v. Dickinson, 17 How. (U. S.) 170. [American.] 1748 REGISTRAR AND MERCHANTS. Pt. II. Damages. be reduced, but for necessary repairs the owners have a right to be reimbursed. ThePactolus, Swabey, 173; 28 L. T. 220; 5 W. E. 167 ; The Clyde, Swabey, 23. 243. The evidence of skilful persons who saw the ship after the collision is the best proof of the repairs necessary. Ibid. 243a. A yacht belonging to the plaintiff having been sunk in a collision, and evi- dence having been given that her mar- ketable value was depreciated, held, that in addition to the claims made for repairs the plaintiff was entitled to be paid such sum as would compensate for the impaired value. The Georgiana v. The Anglican, 21 W. E. 280. 244. The rule which prevails in insur- ance cases, of deducting one-third of the cost price when new articles are supplied in lieu of old, is not applicable to cases of collision ; the claim for indemnity in the former being ex contractu, but in the lat- ter ex delicto, and therefore entitling the party to restitutio in integrum. In a cause of collision, report of registrar and merchants as to the amount of damage, objected to on the ground of such deduc- tion, referred back for alteration on the principle above stated. . The Gazelle, 2 W. Eob. 279; 8 Jur. 429; 3 Notes of Oases, 75 ; The Pactolus, Swabey, 174 ; 28 L. T. 220 ; 5 W. E. 167. 245. When a man runs down a vessel he cannot claim an abatement of one-third for old materials. It is different in in- surance cases, because there it is an understood part of the contract. Hare v. Beckington (Oresswell, J.), cited with ap- proval in The Gazelle, 2 W. Eob. 283 ; 8 Jur. 429 ; 3 Notes of Cases, 75. 246. When a ship partially damaged has been repaired by the owners, the in- surers, as between assurer and assured, are only liable to the amount of two- thirds of the cost of repair, unless cir- cumstances be shown to take the case out of that ordinary rule of deduction. Poing- destre v. Royal Exchanye Assurance Com- pany, E. & M. 378 ; Da Costa v. Newn- ham, 2 T. E. 407. 246a. The estimated cost of repairs in an action to recover on a policy of marine insurance, though rejected as a direct measure of loss", may be the measure of the difference between the ship's sound and damaged values if no other measure can be found for arriving at the loss really sustained, but if more reliable evidence of the amount of such loss exists, the estimated cost of repairs ought not to be adopted for the purpose of ar- riving, even indirectly, at the measure of the loss sustained. Pitman v. The Uni- versal Marine Insurance Co. Limited, 4 Asp. 444. 247. In estimating damages arising from a collision, an outlay merely pro- bable and discretionary had there been no collision, cannot be deducted from a charge made indispensable by the colli- sion. H. M. S. Inflexible, Swabey, 200 ; 28 L. T. 374; 5 W. E. 517. 248. In every case of collision the owners of a damaged vessel may avail themselves of the opportunity of repairs being required in respect of the collision, to do also other repairs, provided that no injury is caused thereby to the persons who pay for the repairs consequent on the collision. The Alfred, 3 W. Eob. 239 ; 7 Notes of Oases, 352. 248a. On opening up, for the purpose of repairing a ship damaged by collision, certain timber heads not affected by the collision were found to be rotten, and to require renewing before the Board of Trade surveyor would allow her to pro- ceed to sea, though but for such opening up these would not have been discovered, and she might have sailed for some years without their renewal. Held, by the Divisional Court, overruling the judgment of the County Court judge, that the ex- penses for such renewal could not be charged to the collision. The Princess, 5 Asp. 451. 249. It does not necessarily follow that surveys include all the repairs that ought to be done. The Alfred, 7 Notes of Cases, 357 ; 3 W. Eob. 232* 250. Shipwrights or persons accustomed to shipbuilding and, semble, who saw the vessel under repair, would be better judges than the merchants assisting the registrar of the repairs necessary in con- sequence of a collision. Ibid. 7 Notes of Oases, 355 ; 3 W. Eob. 232. 251. The report of the registrar and merchants reduced the amounts of ship- wrights' and blacksmiths' accounts on the ground that the repairs exceeded the damage. On objection to the report, evidence of shipwrights and others en- gaged in the repairs was given on one side * (170) But the registrar would require survey, having been rendered necessary by clear proof of repairs, not included in the the collision. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1749 to the effect that all those repairs were caused by the collision ; and on the other side, besides the protest and surveys, evidence was given by shipbuilders and others who had not seen the vessel, but had perused the protest, surveys, and bills, of the sufficiency of the amounts allowed by the report. The court dis- allowed the reductions. Ibid. 7 Notes of Cases, 352 ; 3 W. Eob. 232. 252. Expenses for repairs were incurred shortly after the collision and before judgment, and were paid, and sworn to be correct, and there was no contradictory evidence. The registrar and merchants disallowed part of those expenses, but on objection to the report the full amount was allowed by the court. The Black Prince, 1 Lushington, 576. 253. A claim of £242 was made for cordage ; the registrar and merchants allowed £186. On objection thereto positive evidence was given by the plain- tiff that all the cordage charged for was required in consequence of the collision. Opposed to this was the opinion of the registrar and merchants that the quantity was excessive, but without any explana- tion of fact, or any proof furnished by the defendant. The court referred back the items for further consideration. Ulti- mately £232 was allowed. H. M. S. Inflexible, Swabey, 203. 254. Claim of £80 for painting the whole ship averred to be necessary in con- sequence of her havingbeen shaken by the collision and requiring to be caulked all over. £60 only allowed by the registrar and merchants, and such allowance con- firmed by the court. Ibid. 200. 255. Ship was repaired at Portsmouth and afterwards proceeded to her home port, Yarmouth, where some slight further re- pairs were done. Such further repairs disallowed by the registrar and mer- chants, and the disallowance confirmed by the court. The Hebe, 5 Notes of Oases, 181 ; 3 W. Eob. 535. 256. In the accounts for the repairs of a damaged vessel large deductions were made by the registrar and merchants from the bills of the carpenter and the painter, and also from the bill for copper, on the grounds, 1st, that the charges were too high and a greater discount ought to have been allowed; and 2nd, that all the work done was not rendered necessary by the collision. On objection to their report, held, as to the first ground of reduction, that the registrar and merchants were peculiarly competent to form a correct opinion on such matters, and that the evidence had not satisfied the court they had miscarried ; but as to the 2nd ground, that the evidence established that all the work done was for repairs caused by the collision, and the report directed to be altered accordingly. The Pactolus, Swabey, 173 ; 28 L. T. 220 ; 5 W. E. 167. 257. In a case of damage to an Ameri- can vessel, queere as to the admissibility of evidence as to the general state of vessels built in America, and that they were generallyinsufficiently supplied with iron fastenings. Even if admissible, it is not to be put in competition with direct evidence as to the actual state and con- dition of the vessel and of the repairs necessary to be done in consequence of the collision. Ibid. Swabey, 176 ; Ibid. 258. The burthen of proof that the claimants for damage went into an im- proper port for repair is on those averring that misconduct. The Pensher, Swabey, 213; 29 L. T. 12. See also Nos. 212—214, p. 1743. 4. Expenses superintending Repairs.* 259. Vessel damaged, put into Ports- mouth for repair, her master on board was sick, and agents of the ship were appointed there. Her owner, who re- sided at Yarmouth, sent C, a man of experience, from Yarmouth to Ports- mouth to superintend the repairs. Charge of £33 for C.'s expenses and loss of time, disallowed by the registrar and merchants, and by the court. The Hebe, 5 Notes of Cases, 180 ; 2 W. Eob. 533. 260. Expenses of journeys of master and mate to and from Portsmouth, where the ship was repaired, and Yarmouth, where her owner resided, disallowed by * (171) Damages amounting to about £400 were repaired in the port in which the owners resided. A charge of £10 : 10s. made by the owners for agency and superintending the repairs allowed. The Polonaise, No. 1800, April 23, 1864. E. & M. (171a) The collision was between two steam- ships and occurred in Gothenburg Harbour. The expenses of a journey there undertaken on behalf of the claimants by a London ship- wright and an assistant were allowed, the step being deemed a prudent one. The Carl XV., No. 6011, July, 1872. E. & M. (172) The survey fees of a shipwright who afterwards repaired a vessel's damages were disallowed. The Neera, April, 1884. B. & M. 1750 REGISTRAR AND MERCHANTS. Pt. II. Damages. the registrar and merchants, and by the court. The Hebe, 5 Notes of Cases, 181. 5. Repairs where justifiable.* 261. Semble, in a cause of damage by collision, if the costs of repairs exceed the value of the vessel immediately before the collision, the excess will not be allowed. The Empress Eugenie, 1 Lushington, 138. See also No. 227, p. 1745. 6. Cargo lost.\ 262. Owing to a collision between the K. and the B. the cargo of coals on the K. was damaged, and had to be unladen * (173) The S.* the value of which was variously estimated at from £684 to £1,000, Suffered damage by collision, and received salvage assistance. The salvage expenses amounted to £174, and the repairs and de- murrage to £1,011. Held, that it was the owners' duty to have sold the wreck, and claimed for a total loss, instead of repairing her. The Earl of Leicester, Dec. 29, 1864. E. & M. (174) The plaintiffs vessel, laden with cargo, was sunk in a collision, and after- wards raised and repaired, and the cost of repairs exceeded the value of the ship, which might have been ascertained before the repairs were commenced. Held, that the plaintiff could not recover upon a principle of partial loss, but that the measure of da- mages was the value of the ship before the collision, with -interest from the date when the cargo would, in ordinary course, have been delivered, together with the costs of raising and of placing the ship in dock for inspection, less the value of the wreck as raised. The Empress Eugenie, 1 Lushington, 138. E. & M. (175) Unless there has been a degree of imprudence amounting almost to culpable negligence shown by an owner who has re- paired a vessel which, as events prove, should have been abandoned as a total loss, the re- gistrar and merchants will not reject his claim for the repairs effected. The Magel- lanes, No. 3815, Dec. 1867. E. & M. (176) A vessel having an inferior class was damaged by collision. For the purposes of repair she was extensively opened out, and after a very large sum had been spent upon her, it was discovered that her beams were so decayed as to render it unwise either to complete the repairs or to restore her to her damaged condition after the collision ; at which time her market value would have been considerably greater than after she had been opened out. Onreference of the claim, the defendants contended that the vessel should have been treated as a total loss immediately after the collision. The registrar and mer- chants, however, were of opinion, on the balance of evidence, that the owners had in- tended to repair the vessel so as to entitle her to a higher class than she had before the colh- sion, and that if she had been opened out only so far as was necessary to repair the actual damage, it would then have been thought prudent by an uninsured owner to restore her to her old class by effecting such repairs. They accordingly rejected the de- fendants' contention, and allowed a sum ' which, in their opinion, would have covered the cost of opening out the vessel so far as would have been necessary to effect the colli- sion repairs, and also allowed the estimated cost of such repairs. Ibid. (177) Although, upon reference of a claim for damage by collision, the figures finally arrived at proved that the vessel should have been abandoned and not repaired, the regis- trar and merchants, considering that the owners had acted bond fide and as a prudent uninsured owner might have been expected to act, allowed the repairs in principle, hut dealt strictly with the figures. The N. Mosher, No. 3274, April, 1867. E. & M. (178) A steamer, whose value at the time when she was sunk was found by the regis- trar and merchants to have been about £9,300, was raised and repaired by her owners at a cost (including demurrage) of £10,909. In reducing the claim to £8,973, the registrar and merchants did not accept the contention that she should have been treated as a constructive total loss. The Mary, March, 1882. E. & M. + (179) The value of cargo lost by collision is allowed less charges for freight and of realizing the cargo. The Tuscarora, July, 1858. E. & M. (180) Cost price of cargo and £10 per cent, profit were allowed where no objection to it was taken. The Britannia, August, 1858. E. &M. 5 (181) In estimating the value of cargo lost by collision the registrar and merchants will allow a fair profit in addition to the cost price. The Ironmaster, Sept. 1858. E. & M. (182) A cargo of coals was shipped on owner's account. The vessel having been run down and sunk, the owner claimed and had allowed to him the invoice price of the coals, plus the necessary disbursements in sending the vessel to sea, and the wages paid to the master and crew up to the date of the loss. The Thyatira, July, 1882. E. & M. (183) A third party having established a claim in respect of advanced freight, the re- port was, by agreement, referred back to the registrar, and an amended claim filed, claim- ing the estimated arrival value of the cargo at its destination, less the expenses that would have been incurred in realizing that value. Ibid. Feb. 1884. E. & M. (184) An item for insurance premium on cargo lost by collision was objected to, but as REGISTRAR AND MERCHANTS. Pt. II. Damages. 1751 at C, the port of loading. The owners of the coal desired to sell it at C, and to load a fresh cargo, but this the owners of the K. refused to do, except upon "fresh terms." These the coal owners did not ascertain, but re-shipped the coal iu the K. to its destination at Bombay, and there used it for smithy purposes,*as it was unfit for its original purposes. Against the owners of the B. the registrar allowed only the difference between the value of the damaged and sound coal at 0. Held, by the court, that the owners of the K. were entitled to insist on the original cargo being re-shipped, that the cargo owners should have inquired as to the " fresh terms," so as to be able to form a judgment as to the best way of diminish- ing the loss, and that it must be ascer- tained what increased freight would have been payable in respect of a fresh cargo before comparing the loss which resulted at Bombay with the loss which would have arisen on a sale at C, and shipping a fresh cargo. The Blenheim, 10 P. D. 167 ; 54 L J. P. D. 81. 262a. Held, further, that because the damaged coal was used for smithy pur- poses at Bombay its value was not neces- sarily that of ordinary smithy coal at Bombay. Ibid. 263. In estimating the value of a perishable cargo, such as potatoes, the court will value it at the highest market price which the evidence proves could have been obtained, on the principle that the defendant should make good, at the highest market price, any loss sustained. The Scotia, 4 Jur. N.S. 156. [Irish.] 263a. On a reference to the registrar and merchants in a cause of collision the plaintiffs, who were underwriters of cargo and had paid for a total loss, produced in support of their claim the policies of insurance, the bills of lading, the invoice and a copy of the manifest. Held, that the plaintiffs must also give evidence of a discharge from the original owners of the cargo, and some further evidence as to the value of the goods. The John Bellamy, 39 L. J. Adm. 28. 264. As to the market value of cargo at its place of delivery not being allowed, see The Parana, No. 203, p. 1741. 264a. As to the loss of cargo in causes of damage to cargo, see pp. 1738 — 1742. the plaintiffs claimed no profit on the cargo the registrar did not disturb the claim. The Aherfoyle, August, 1883. E. & M. (185) Claims for insurance, in addition to the cost of cargo lost by collision, were dis- allowed, and an allowance substituted for the trouble of shipping the goods. The Warkworih, Feb. 1885. E. & M. (186) The measure of damages for goods lost in a collision (as held in the United States) is the value of the cargo at the port of shipment, together with the expense of lading it on board, and transporting it to the place of collision, and interest at 6 per cent, per annum ; all beyond is expected earnings or profits, and the loss of them is not a proper measure of damages. (U. S. Circ. Ot. East Dist. of N. Y.) Joseph W. Dyer v. The National Steamship Co., 4 Asp. 30. [Ameri- can.] (187) Where the value at the port of ship- ment cannot be ascertained, the measure is the market value at the port of destination, less expenses which would have attended the sale, and less the estimated mercantile profit, but plus interest. Ibid. (188) A cargo of guano, shipped at the Chrncha Islands, while being taken to New York was lost by collision. The guano be- longed to the Peruvian Government, which, though it had a monopoly of the guano at the Chincha Islands, did not sell the guano there, but carried it to various parts of the world. Held, that the damages for the loss of the guano were to be ascertained by taking the market value in the port of New York, and deducting therefrom the costs and charges which would have been incurred from the time of the loss to its sale and a reasonable mercantile profit. Dyer v. The National Steamship Co., 4 Asp. 26. [American.] (189) Where cargo was lost by a collision and the owners brought suit to recover its value, held, that the damages must be com- puted by taking the price paid at the port of shipment, and adding the expense of lading it on board, and of navigating the vessel to the place of collision, and that the libellant was entitled to interest on that account from the time of the collision. The Ocean Queen, 2 Asp. 419. [American.] (190) Where a ship at Melbourne bound for New York received on freight a quantity of sovereigns, and gave a usual bill of lading therefor, but failed on her arrival to deliver them to the indorsee of the bill of lading, held, that in fixing the amount of damages, the bill of lading was to be treated, not as a contract to pay money, but to carry and de- liver goods. The Patrick Henry, 2 Asp. 566. [American.] (191) Held, also, that the value of the sovereigns was not to be fixed by a statute which fixed its computation for ordinary transactions, but by their actual value in the currency of the country. Ibid. (192) Held, further, that the clause in the bill of lading fixing the freight at so many pounds sterling was a promise to pay money, 1752 REGISTRAR AND MERCHANTS. Pt. II. Damages. 265. In cases of costs and damages, see p. 1776. 7. Cargo damaged* See No. 262, supra. 8. Interest, f 266. Held, that the party damaged and ohtaining judgment was entitled to in- terest upon the amount paid for the repairs from the date of payment, and not from the date of the decree only, and the report upon that item amended. The Hebe, 5 Notes of Cases, 176; 2f, Eob. '533. 267. In a case of total loss interest on the value of ship and amount of freight is allowed from the probable termination of the voyage. The Canada, 1 Lushington, 586. 268. In a cause of collision in rem the ship was sold by the court, and the pro- ceeds were insufficient to pay the plain- tiff's claim. Held, that the plaintiffs were entitled to interest, ultra the net proceeds and costs. The Europa, 9L. T. N.S. 781. 269. See, further, as to the allowance of interest ultra the statutory limitation of liability, tit. Costs, p. 403. 270. As to interest in causes of bot- tomry, seep. 1720. 271. In causes of mortgage, see c. 6, s. 2, p. 1730. 272. In causes of salvage, see c. 9 s. 2, p. 1734. 273. In costs and damages, seep. 1776. 9. Clothes.% 274. In estimating the value of clothes, not worn, lost by seamen in a collision, and in calculating the freight the pound sterling must be taken at its legal value. The Patrick Henry, 2 Asp. 566. [American.] (192a) The owners of a ship trading as a common carrier are liable to make good any losses sustained by the cargo through colli- sion. The Horatio Harris, No. 4214, June, 1868. E. & M. * (193) A cargo of grain having received sea damage was afterwards detained on board the vessel at an intermediate port by reason of a collision. Held, that such detention must have increased the damage which was going on at an increasing ratio the longer the ves- sel was detained, and the registrar allowed a sum representing about one-fifth of the total sea damage. The Lima, November, 1883. E. &M. (193a) When goods are destroyed or mate- rially injured on board a vessel in the port where they are shipped, the damages must be ascertained by the difference between the prime cost and charges, and the sales at the port of shipment, and not by the probable profits if the goods had gone safe to the port of destination. Dusar v. Mwngatroyd, 1 Wash. 0. 0. 13. [American.] (194) The actual damages sustained by a collision at sea are to be paid by the faulty vessel, both in respect to ship and cargo. The Narragansett, Olcott, Adm. 246. [Ame- rican.] (194a) In cases of tort the measure of damages is, in the event of loss, the value of the goods at the time and place of shipment, and in the event of damage the diminution of value by reason of the injury, with interest thereon to the time of judgment, including all proper charges, and the premium of in- surance where it has been paid. 1 Conkling's Adm. Prac. (2nd ed.), 242. [American.] (195) The vessel doing damage is not exonerated from full damages, because after the wreck a portion of the cargo was injured or lost through the efforts of a third vessel to save it. The Narragansett, supra. [American.] t (196) Interest on the value of the ship properly sold in consequence of a collision allowed from the day of collision. The South Sea, Swabey, 145. E. & M. (197) Interest on the amount of the value of a ship lost by collision allowed from the time when the cargo on board her would, but for the collision, have in ordinary course been delivered. The Empress Eugenie, 1 Lushington, 140. E. & M. _ (198) In cases of repairs the ordinary prac- tice is to allow interest from the date of pay- ment of the bills. (199) A cargo was lost by collision near its port of destination. The registrar and merchants allowed interest from the day when the cargo would in due course have been discharged, and the money due and payable. The Tuscarora, July, 1858. E. & M. (200) Interest on money paid into the re- gistry in lieu of bail in a cross action not allowed. The Chieftain, 30th Dec. 1854. E. & M. (201) Laches of parties in putting forward their claims is considered by the registrar and merchants in allowing interest. The Miranda, No. 3914, Feb. 1869; The Florence Danvers, No. 4232, April, 1869 ; The Wood Hall, No. 5819, July, 1872. E. & M. (201a) The owners are entitled to recover interest on the amount of damages from the time of the injury. Fitch v. Livingston, 4 Sandf. Sup. Ot. 492. [American.] (202) In the American Admiralty Courts interest in collision actions is allowed at the rate of 6 per cent, from the time of the collision. Dyer and others v. The National Steamship Go., 4 Asp. 28. (202a) See also notes 186, 187, 189, supra, t (203) In the Admiralty Division the prac- REGISTRAR AND MERCHANTS. Pt. II. Damages. 1753 the court will adopt the principle acted upon by insurance companies and deduct one-third from the original cost price, as the nearest possible approximation to the market value upon the day of the loss. The Cumberland, 6 Ir. Jur. N.8. 325; 1 Asp. 170; 5 L. T. N.S. 496; but see The Gazelle, 2 W. Eob. 279 ; 8 Jur. 429 ; 3 Notes of Oases, 75. 275. In a suit brought by seamen against the owners of a steamer, to re- cover the value of their clothes, &c, lost in a collision, a defence that the im- pugnants, in a case of collision by owners of the lost vessel, had been adjudged to pay a total loss, overruled. The Cum- berland, 1 Asp. 170. 10. Commission.* 276. See as to commission in causes of bottomry, p. 1721. 11. Discount.^ 277. Discount ought to be deducted if it has been, or might have been, received. H.M.S. Inflexible, Swabey,' 200 ; 5 W. E. 517; 28 L. T. 374. 278. If the charges are very high, that circumstance favours a supposition that discount has been or would, have been allowed, but is not conclusive. Ibid. 279. In such a case the proper course is to reduce the charge to a proper rate, though not on account of discount being proved or admitted. Ibid. 280. The registrar and merchants de- ducted from the bills for the repairs the discount allowed by the shipwright. The deduction approved of by the court. The Gazelle, 2 "W. Eob. 279 ; 8 Jur. 429 ; 3 Notes of Oases, 75. 12. Agency. \ See s. 4, p. 1749. 13. Consequential Loss. (a) Generally. § 281. By the law of the Court of Ad- miralty in cases of collision the owners of tice is to allow the fair value of the seamen's clothes, according to the best judgment the registrar and merchants can form thereon. They do not consider themselves bound by the values sworn to by the claimants. (203a) The claims of a crew for the loss of their effects in a vessel which they had aban- doned after a collision, but which was after- wards picked up, having meantime been plundered, disallowed, no adequate proof being given that the effects, if really lost, might not have been saved, considering the time the colliding vessel stood by. The Car- lisle Castle, Dec. 1882. E. & M. (204) In an action for damage the master claimed for loss of his effects. These included certain valuables for the recovery of which an opportunity had presented itself, but had not been taken advantage of by the master. The claim was reduced accordingly. The Evangeline, No. 2642, April, 1866. E. & M. (204a) In considering the claim of officers and seamen for their private effects, the registrar exercises a large discretion, and is not disposed to allow unless, under very special circumstances, more than from £10 to £15, according to what may have been the employment of the ship and the length of the voyage performed or contemplated. * (205) Where repairs were done in the owner's port no allowance was made for com- mission on advances. The Venezuela, May, 1858. E. & M. (206) The usual rate allowed by the regis- trar and merchants for commission on ad- vances is two and a-half per cent, upon the amount allowed by the report, t (207) Discount is deducted because in- F. terest at 4 per cent, is allowed on all pay- ments from the date of payment. (207a) When discount is allowed upon bills for repairs the amount of discount must be deducted from the claim. The Pomona, 1857. E. &M. (208) Where a bill for repairs was not paid until three months after the completion of the repairs, and then only by an acceptance, the period of which was not shown, the registrar deducted a discount of 10 per cent. The Aberfoyle, August, 1883. E. & M. (208a) Where a shipwright's account for repairs had been paid by a bill due ten months after the collision, the registrar disallowed a large amount by way of discount. The Castle- ford, August, 1884. ' See also The Harvest Queen, December, 1884. E. & M. (209) When freight is payable, less dis- count, the discount will be deducted from the gross freight. H.M.S. Pembroke, May, 1858. E. & M. (209a) It having been shown that a ship- wright was giving long credit to the plain- tiffs, the registrar and merchants deducted a discount of five per cent, when assessing the claim as against a wrong-doer. The Africa, February, 1884. E. & M. % (210) A charge of agency for superin- tending the repairs, and collecting and pay- ing the accounts, is generally allowed, graduated according to the amount of repairs and the labour and trouble in reference to the accounts. § (211) Cases of great difficulty often arise when the question is up to what time, subse- quent to the cause of action, damages may be assessed, Whether they must be limited 5 V 1754 REGISTRAR AND MERCHANTS. Pt. II. Damages. the -wrong-doing vessel are responsible, not only for the immediate damage, but for consequential damage, that is, all damage which may subsequently take by the commencement of the action, or may be calculated up to the time of verdict, or to an indefinite period afterwards. The result of these decisions seems to be, that damages arising subsequent to action brought, or even to the date of verdict, may be taken into con- sideration where they are the natural and necessary result of the act complained of, and where they do not themselves constitute a new cause of action. Mayne on Damages, 4th ed. p. 93. (212) The first, and in fact the only, inquiry is whether the damage" complained of is the natural and reasonable result of the defend- ant's act. It will assume this character if it can be shown to be such a consequence, as in the ordinary course of things would flow from the act. Otherwise the damage is said to be too remote. Ibid. 45. (213) Damage will obviously be too remote, when it is caused wholly or principally by the act of the plaintiff himself; it cannot then be regarded as the necessary result of the defendant's misconduct. Ibid. 59. (214) In general it will be found that where -damage is too remote to form the ground of an action the reason of the decision would equally exclude it from consideration, though the suit were maintainable on other grounds. Ibid. 44. (215) On the question of remoteness, of damage, and as to cases where profits would have been made but for the damage, see Ibid. p. 44 et seq., and the cases there cited and considered. (216) The question whether the registrar and merchants are not precluded under the rulings in The Columbus, 2 W. Eob. 158; The Lively, 1 Gallion, 315 ; and The Amiable Nancy, 3 "Wheaton, 346, from entertaining speculative claims for damages, such as pro- bable profit on a voyage contracted for but not in progress at the time of the collision, fully considered. The Cojosefield, No. 6973, June, 1875. E. & M. (217) Even _ where damages consequent upon tne collision would probably have been avoided, or mitigated, by special precautions on the part of the master of the injured vessel, the defendants will not be exonerated from liability unless they can prove that the master was grossly and culpably negligent. The Earl of Jersey, 1881, G. No. 9, Eo. 27, Dec. 1881. E. & M. (218) A vessel returning to port for re- pairs was deserted by some of her crew, who had received advances on sailing. The claim for such advances as against the wrong-doing vessel was disallowed. The Stag, May, 1882. E. & M. , (219) The actual damage sustained at the time and place of the injury, and not the profits which might probably have been real- ized if the collision had not incurred, consti- tutes the just measure of damages to be awarded to the injured party. 1 Oonkling's (U. S.) Adm. Prac. 384. [American.] (220) The probable profits of a voyage are not a fit mode for the ascertainment of da- mages in cases of marine torts. The Amiable Nancy, 3 Wheat. 546 ; La Ainstad de Hues, 5 Wheat. 385. [American.] (221) In estimating damages by collision, held, that remote or consequential damages growing out of the supposed loss of profits should not bo considered. Minor v. Steamer Picayune, 13 La. An. 564. [American.] (222) By the American law certain special payments have to be made by American owners who discharge American seamen abroad, but as the English Court of Admi- ralty applies the General Maritime Law it cannot take cognizance of the municipal laws of foreign countries. The Cultivator, 1878, B. No. 64, June. E. & M. (223) Semble, therefore, that such payments could not be allowed as items of damage. Ibid. (224) The voyage of a passenger steamship having been interrupted by the collision, the passage-money of certain of the passengers was returned to them, and claimed against the defendants. The entire delay occasioned to the vessel was under a fortnight. There being no legal obligation upon the owners to return the passage-money, the specific item was struck out of the claim, but certain allowances were made in lieu thereof. The Delmira, No. 3080, January, 1867. E. & M. (225) A vessel carrying emigrants, who had each paid £5 towards his passage, the balance of £10 to be paid by the Queensland Government on arrival, returned to Graves- end to repair collision damages. There some of the emigrants left her and did not join her when she again sailed. The claim for the loss of £10 per head was disallowed. The Ella, May, 1884. (226) Brokerage paid in respect of the un- completed portion of a period covered by a charter-party is a loss too remote to be treated as an item of consequential damage. The Earl of Erne, No. 4950, November, 1869. E. & M. (227) Commission charged on a contem- plated freight to be earned under another charter is also too remote. The Hermann, Nos. 5010 and 5012, May, 1870. E. & M. (228) A reward paid for the identification of a vessel which deserted the vessel she had damaged without giving her name or destination, is not an item of damage. The Hilda, No. 5018, November, 1869. B. & M. (229) There being no obligation upon the master of a foreign vessel to make a depo- sition before the receiver of wreck, the fee paid in respect thereof will not be allowed. The Charlton, No. 5578, March, 1871. E.&M. (230) The owners of a vessel sunk by col- REGISTRAR AND MERCHANTS. Pt. II. Damages. 1755 place that could be fairly attributed ex- clusively to the act of the original -wrong- doer. The Countess of Durham (1840), 9 Monthly Law Mag. (Notes of Cases), 279 ; The Betsey Caines, 2 Hagg. 30. 282. Damages for collision may be re- covered against the wrong-doing vessel, although subsequently to the collision the damaged vessel may not have taken all the proper measures for her safety. The damaged vessel is not to blame because her crew were seized with panic and did not perform their duty, if such panic can be properly attributed to the collision. The Lotus, 2 Asp. 238 ; The Lena, Ibid. 345. But see below The Flying Fish. 283. All the subsequent damage arising from a collision must be borne by the vessel causing the damage, unless any part of that subsequent damage arose from negligence or want of skill on the part of those on board the vessel damaged. The Pensher, Swabey, 213 29 L. T. 12. Affirmed on appeal, Ibid. Swabey, 215 ; The Linda, Swabey, 307 30 L. T. 234 ; 4 Jur. N.S. 146 ; 6 W. "R. 196; Anderson v. Hoen {The Flying Fish), 3 Moore, P. 0. N.S. 86 ; 2 Asp 221 ; B. & L. P. C. 436 ; 34 L. J. Adm P. 0. 113. 284. Held, in the Privy Council, over- ruling the judgment of the Court of Admiralty, that in considering whether damages to a vessel incurred subse- quently to a collision are to be paid by the wrong-doer, it is not necessary for the defendant to prove gross negligence or gross want of skill, nor is any presump- tion to be raised against the defendant because his ship was the original wrong- doer. Anderson v. Hoen (The Flying Fish), 3 Moore, P. C. N.S. 86 ; 2 Asp. P. C. 221 ; Br. & Lush. P. C. 436 ; 34 L.J. Adm. P.O. 113. 285. Ina cause of damage the defendant will not be liable for any consequential damage which the plaintiff might have averted by ordinary care, courage, and resolution. Semble, in the Court of Admiralty it lies upon the defendant to .show that such care, courage, and resolu- tion were not exercised. Semble, in the Courts of Common Law it lies upon the plaintiff to show that they were exercised. The Thuringia, 4 L. J. Adm. 44 ; 1 Asp. N.S. 283. 286. The plaintiff claiming for a con- sequential loss must show an actual loss and reasonable proof of its amount. Proof of a possible or probable loss is not sufficient. The Clarence, 3 W. Rob. 286 ; 7 Notes of Cases, 579 ; 14 Jur. 557. 287. The vessel C, which was proceed- ing in ballast to Montreal to load a cargo of grain for the United Kingdom pur- suant to charter-party, was injured by collision with another vessel, and com- pelled to put into port to repair. The repairs necessarily occupied so long a time that it was not reasonably possible for the C. to have arrived at Montreal in time to fulfil her charter before the navi- gation of the St. Lawrence was stopped by ice for the winter. In these circum- stances the owners of the 0. abandoned the charter, and it was found that they had acted prudently in so doing. Held, that the loss arising from the abandonment of the charter was a loss caused by the col- lision. The Consett, 5 P. D. 229. 288. In a suit to recover damages caused by collision, the promovents, although entitled to recover their actual losses, subject to the statutory limitations, were held not entitled to certain conse- quential damages. The Cumberland, 1 Asp. 170. 288a. Commission paid for bail in a salvage action will not be allowed as part of the damages recoverable by the salved vessel in an action of damage by collision. The British Commerce, 9 P. D. 128 ; 53 L. J. P. D. 72. Although in certain cir- cumstances they may be recovered as consequential damages in other actions. The Numida, The Collingrove, 10 P. D. 158 ; 54 L. J. Adm. 78; 5 Asp. 335 ; 34 W. E. 156. See also c. 1, p. 1738. (b) Abandonment of Vessel after Colli- sion.* 289. When a vessel is sunk at sea by collision it is not incumbent upon the lision sought to recover a sum alleged to have been paid by them to the consignees as an indemnity for loss sustained by the non- delivery of the cargo. The registrar and merchants rejected the claim. The Bulgarian, No. 6467, February, 1874. E. & M. (231) The charges of noting a protest dis- allowed on reference in a damage action, the protest being purely formal and not noted within a reasonable time after the collision. The Xanthe, No. 3266, July, 1866. E. & M. (232) Bail fees were claimed as against a wrong-doer, but were disallowed by the registrar and merchants. The Elephant, 1884. E. & M. * (233) In an action of damage the plaintiff 5 v 2 1756 REGISTRAR AND MERCHANTS. Pt. II. Damages. owner to go to any expense whatever for the purpose of raising her. The Colum- bus, 3 W. Eob. 165; 13 Jur. 285; 6 Notes of Oases, 671. 290. This principle would not apply when the vessel is not actually sunk but only partially damaged. Ibid. 291. The principle of abandonment as applied to insurance cases does not apply to cases of damage by collision. Ibid. 291a. The true rule, in a case of total loss by collision, is to calculate the value of the property destroyed at the time of the loss, and to pay it to the owners as a full indemnity. Ibid. 292. The ship 0. came into collision with the smack T., and the T. in conse- quence sunk. The owner of the C. weighed the smack and conveyed her into port. Held, that he did it at his own risk and expense, and that her owner was not bound to take her, but was entitled to recover as for a total loss. Ibid. 293. A vessel to which the blame of a collision is attributed is liable not only for the immediate damage, but for the consequential loss arising from the aban- donment of the injured vessel by her crew, under reasonable apprehension of danger. The Blenheim, 1 Spinks' Eccl. & Adm. Kep. 285. . 294. It is impossible for any court of justice to say with certainty what are the precise circumstances that would justify the abandonment of a vessel damaged by collision. If there be any reasonable prospect that the crew's lives are in danger they are justified in abandon- ing her, and the consequences must fall on the vessel occasioning the damage. Ibid. 295. The propriety of such abandon- ment is a question for the judge and not for the Trinity Masters. Ibid. 296. The master and crew of a vessel in a case of collision are not bound to incur extraordinary risk of life by staying by the vessel. The Linda, Swabey, 306 ; 6 W. E. 196; 30 L. T. 234; 4 Jur. N.8. 146. 297. The ships Q-. and L. came into collision, after which the G. was aban- doned by her master and crew, and picked up by another vessel and carried to Madeira, by which a large salvage ex- pense was incurred. In a cause of colli- sion both vessels were held to be in fault. On a further question whether the ex- pense of salvage was to form part of the damage which would be divided between the vessels, held, that under the circum- stances the G. was improperly abandoned, through want of ordinary skill aud re- solution in her master and crew, and that the salvage expense incurred was charge- able to such misconduct, and should, therefore, form no part of the damage arising from the collision. Ibid. 298. After a collision has occurred, if the vessel held not to blame for the col- lision is abandoned by her master and crew, the court will require to be satisfied that the master wilfully abandoned his vessel when he might have saved her, or that he abandoned her through a want of ordinary nautical skill and resolution, before it will oust the plaintiff's claim in respect of such abandonment. If there were extraordinary risk of life in remain- ing by her, or if it turned out to be a question of want of judgment in the master as to whether it were expedient to act in this or that way, the court will consider the collision to be the cause of the whole damage and expense incurred. Ibid. ; but see Anderson v. Hoen ( The Flying Fish), infra. 299. In consequence of a collision the plaintiff's vessel, W. E., was run on shore, and she subsequently broke up and was lost. On a claim for the loss of the vessel, opposed on the ground that the master was advised to lay out an anchor and so work the vessel off before the tide rose, and that he was guilty of gross nautical ignorance and negligence in not doing so ; held, on the balance of evidence, that there was such reasonable doubt as to the success of such measures that the owners ought not to be prejudiced by the judgment of the master thereon under. claimed for a total loss of his vessel, which, had been abandoned by her master and crew. The registrar and merchants were of opinion that a master possessing more than ordinary resolution would probably have stayed by and saved the vessel, but as it could not be said that the abandonment was unjustifiable, the claim was therefore allowed. The Pallas, Nos. 5946 and 6109, July, 1872. E, & M. (234) In a case of collision the crew of the injured vessel are not bound to remain on board, unless it is plain that they can do so with safety, and there is good reason to sup- pose the vessel can be saved. Sherman v. Fream, 30 Barb. (N. Y.) 478. [America*.] (235) If such circumstances exist, how- ever, leaving the vessel is gross negligence. Ibid. '■ REGISTRAR AND MERCHANTS. Pt. II. Damages. 1757 circumstances of great difficulty, and claim allowed. Anderson v. Hoen {The Flying Fish), Aug. 2, 1864. 300. But on appeal, held, that the vessel was not in such a state that all attempts to save her were hopeless, and that the master had been guilty of want of ordinary nautical skill and neglect of duty in exercising no judgment at all in the matter, in attempting nothing because he persuaded himself that nothing could be done, in at once abandoning her in despair and regarding all efforts to save her as hopeless, and in rejecting all offers of assistance without weighing all the measures proposed because he had hastily determined that the state of his vessel would make every effort to save her un- available. The amount of damages, therefore, directed to be limited to those to which the plaintiffs were entitled down to the time when the master first refused the assistance offered him. Ibid.; 3 Moore, P. 0. 0. N.8. 77 ; 34 L. J. Adm. P. C. 113; 2 Asp. 221; B. & L. P. C. 436. 301. Held, that it was not necessary to prove that the master of the W. E. had been guilty of gross negligence or gross want of skill ; nor was any presumption to be raised against the defendant be- cause the P. F. was the original wrongdoer, but that the proper question was whether the master of the W. E. did what a rea- sonable man would do under similar circumstances, i. e., acted with ordinary nautical skill and resolution. If it was reasonably doubtful whether any measure proposed would be successful, he would be justified in declining to run the risk. Ibid. 3 Moore, P. C. C. N.S. 113. 302. A collision occurred in the Lough of Belfast about midnight between a steamer and a brigantine ; the steamer continued her course immediately after the collision, which it was admitted occurred solely through her default. The crew of the brigantine, under what ap- peared to the court a well-grounded apprehension of danger to their lives, abandoned her, and she in consequence went ashore and became a total loss. Held, that the steamer was liable for the loss, though it was probable that if the crew of the brigantine had remained on board the loss might not have occurred. The Lindsay, L. E. 1 Eq. 259. [Irish.] 303. In a cause of damage by collision the defendants condemned in the damage, except so much of it as was the result of improper abandonment. (Affirmed by the Court of Delegates, but without costs.) The Swan, 9 Irish Jur. 278 ; 2 Asp. 133. 303a. The master and crew of a vessel injured by collision are bound to show ordinary courage and nautical skill in endeavouring to save their vessel from total loss, and the defendants will not, on a reference to the registrar and merchants to assess the damages, be held liable for any loss which might have been avoided by the exercise of such ordinary courage and skill. The Thuringia, 41 L. J. Adm. 44 ; 1 Asp. N.S. 283. 304. The T., a North German steamer, ran into the W., a British steamer, eighteen miles off the coast of Heligo- land. The crew of the "W. immediately got on board the T., but some of them returned and found the W. injured and making water. The W. was built in watertight compartments, and the water did not reach her engines or fires. The T. lay by her for an hour, when a Prench man-of-war approaching, and Prance being then at war with Germany, she hailed those on board the W., who at once abandoned her, and the T. steamed away. The W. was seen afloat by the French ship for three or four hours after- wards. The plaintiffs, the owners of the W., claimed for a total loss. Held, affirming the decision of the registrar and merchants, that the abandonment of their vessel by the plaintiffs was not justifiable, and that they were only entitled to such a sum as would have repaired the vessel and compensated them for its detention whilst being re- paired. Ibid. (c) Losses or Damages after Collision.* 305. Held, in the Privy Council, over- ruling the judgment of the Court of * (236) The S. came into collision in Tar- mouth Roads with the E. L. , which was found to blame for the collision. The S. lost her bowsprit and foremast, besides suffering other damage. She accordingly engaged the assist- ance of a tug to take her into Lowestoft. On entering the harbour the tug struck the South Pier, and the brig passed round out- side the pier head, drifted on to the beach, and sustained further damage. Held, that the owners of the E. L. were responsible for the further damage. The Earl of Leicester, 29 December, 1864. E. & M. (237) The W. W., whilst at anchor in the 1758 REGISTRAR AND MERCHANTS. Pt. II. Damages. Admiralty, that in considering -whether damages to a vessel incurred subse- quently to a collision are to he paid by the wrongdoer, it is not necessary for the defendant to prove gross negligence or gross want of sMll, nor is any presump- tion to be raised against the defendant because his ship was the original wrong- doer. Anderson v. Hoen {The Flying Fish), 3 Moore, P. C. N.S. 86 ; 2 Asp. 221 ; B. & L. P. 0. 436 ; 34 L. J. Adm. P.O. 113. 306. When a collision has taken place the burden of proof lies on those who assert that subsequent damage and ex- penses are not chargeable to the collision. The Linda, Swabey, 306 ; 30 L. T. 234 ; 4 Jur. N.S. 146; 6 W. E. 196; but see The Flying Fish, supra. 306«. A vessel was seriously damaged by collision, and subsequently became unmanageable, got on a sandbank, and was lost. Held, that her eventual loss was attributable to the effect of the colli- sion, and not to the subsequent mis- management of those on board her. Damage pronounced for accordingly. The Mellona, 3 "W. Eob. 7; 11 Jur. 783 ; 5 Notes of Cases, 450. 307. Primd facie the presumption of law is that a vessel, which has been damaged by collision and subsequently lost, was lost in consequence of the col- lision. Ibid. ; but see The Flying Fish, supra. 308. A schooner having previously en- countered severe weather, put into Gib- raltar, and, while at anchor there, was injured by a steamer. The steamer being to blame for the collision, the registrar and merchants, considering it probable that the subsequent condition of the vessel was caused partly by the previous severe weather and partly by the colli- sion, divided the damage. On appeal to the court, held, that there was primd facie proof, on behalf of the schooner, Mersey, was run into and damaged by the steamship T. In consequence of the damage the pilot considered it unsafe for the W. W. to remain in the river, and she was accord- ingly taken into the St. George's Dock Basin, where at low water she took the ground, and strained and wrinkled her metal. Before the collision she made no water, subsequently she made a very little, but after the ground- ing she made three or four inches an hour. Meld, that the grounding was a result of the collision, and that the plaintiffs were entitled to recover for the, repair of the damages caused by the grounding. The Tynwald, that all the damage was caused by the collision, and that the owners of the steamer having failed to rebut by con- clusive evidence such proof, they were responsible for all the damage. Report directed to be amended accordingly with costs. The Egyptian,_ 10 L. T. N.S. 91 ; but see The Flying Fish, supra. 309. In a cause of collision it was con- tended on behalf of the vessel to blame that the master of the other vessel had contributed to the ultimate sinking of his ship by neglecting, after the collision, to take proper measures to secure her safety. Held, that although it was possible mea- sures might have been adopted to avert total loss, yet it was not to be expected that persons under the circumstances attending the collision would be very acute in their judgment or very prompt in their action. The Lena, 2 Asp. 345. 309a. The D. came into collision with the J., rent her mainsail, and did other damage ; the J. was ultimately stranded, in consequence, as it was contended on her behalf, of her being so deprived of the use of her mainsail. In an action for damage the D. admitted she was to blame in causing the collision, and ten- dered £10 to cover the damage thereby occasioned, contending that the stranding of the vessel was occasioned, not by the damage arising from the collision, but by the want of skill of the master of the J. The Trinity Masters were of opinion that the master of the J. had not exercised such a sound judgment in the proceed- ings subsequent to the collision as a master of ordinary skill and experience should have done. The court pronounced for the damage happening immediately on the collision, but not for the conse- quential damage claimed (i. e., that occa- sioned by the vessel stranding). Senible, however, that the J. being merely a small schooner, her owners would have been entitled to the consequential damage Dec. 1864. E. & M. (238) A vessel which had been damaged by collision engaged a tug to tow her to a place of safety. During the towage she sustained fiirther damage in attempting to navigate •& dangerous channel at an unfavourable Btate of the tide, although a better channel was available, and more water could have been found by consulting the tides. It also ap- peared that the master of the vessel had directed the movements of the tug. Held, that the further damage was not consequent upon the collision. The John Olemans, No. 4792,.August, 1869. E. & M. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1750 claimed had the master exercised only- ordinary skill and experience. The Countess of Durham (1840), 9 Monthly Law Mag. (Notes of Cases), 279; The Pensher, Swabey, 214. 310. Collision with defendant's vessel held to have been the cause of plaintiff's vessel having gone on the rocks, and sus- tained further damage. The Despatch, 1 Lushington, 98. 311. After a collision, in which the hulls of the two vessels never came in contact, buttheE.'s mainboom was struck, and rail, bulwarks, and companion carried away. The E. was thirty-five years old, and 135 tons gross register, laden with 225 tons of cement, made considerably more water than before the collision, and her owners, while ignorant of the name of the other vessel, had been placed on the hard at Dover. The registrar of the county court allowed for the repairs, docking the ship, and discharging and reloading cargo, £97, which the judge, on objection to the re- port, increased to £174. On appeal to the Admiralty Division, it was contended that the greater part of the repairs were caused by the vessel being put on the hard. Held, that although all the damage was not caused by the collision, yet a consider- able amount was caused by straining consequent upon the collision ; that it was proper and prudent, under the circum- stances, to take the vessel into Dover, and place her upon the hard ; that the owners acted bond fide in doing so ; and that though some straining was caused by the vessel being placed on the hard, yet as the plaintiffs were justified in placing her there, the defendants were liable ; that, on the same ground, the unloading of the cargo was justifiable ; and that with re- gard to the caulking and other charges, such as demurrage, the judge of the court below had discriminated, allowing what he considered should be borne by the defendants, and disallowing the rest ; and it was proved that the judge was not right in the discretion he had exercised. Appeal dismissed with costs. The Co- lombo Carolina, January 26, 1886. 312. The stem of the S. struck the C. in the engine-room compartment in the after-part of the ship, cutting eight feet into her deck, and making a hole ten feet wide, which extended below the water- line. The compartment immediately filled with water, which extinguished the fires, and caused the C. to settle so much by the stern that she drew twenty-one feet aft and only three feet forward. About an hour and a-half after the collision, the 0. being still afloat, the 8. took her in tow, and proceeded in a north-westerly direction towards Sunderland. About 9 a.m., the two vessels being off Hartlepool, the C. was taken in tow by the steam-tug B., and the S. proceeded on her voyage to the southward. The E. continued to tow towards Sunderland with the assistance of two other tugs ; but about 4 p.m., when only about half a mile from the south entrance to-Sunderland Dock, the C. sud- denly sank, and became a total loss, and the captain of the C. should have beached his vessel instead of trying to take her to Sunderland, or should have waited off Hartlepool, being held by the steam-tug, until there was sufficient water for her to have crossed the bar there ; this would have been about five o'clock in the after- noon. The registrar and merchants con- sidered that though the master acted bond fide in the course he took, yet he should have asked the S. to tow her in shore, to beach her on the sands north of Whitby, and that he was not justified in attempting to proceed to Sunderland ; and that the owners of the C. were not entitled to claim as for a total loss. Held, on objection to the report, that the master of the C. had done the best for the safety of the ship, as if he had attempted to beach her in the trim she was in she would have grounded aft, while forward she would have been waterborne, and with the sea there was she would in all probability have been broken in half; that she would have been in no better position held by the tug off Hartlepool, and waiting to get over the bar, than she was towing towards Sunderland ; that the proximate cause of the loss was the col- lision, and not negligence of the master ; and that even if that, because a man in an emergency did not do the best that could be done, his owners were not to be barred from recovery. The owners of the C. were therefore allowed to claim as for a total loss. The Stanmore, 12 Nov. 1885. (d) Raising Vessel.* 313. The owners of the vessel doing the * (239) Such expenses when incurred will be allowed to the owner as part of his da- mages. • (240) Persons were engaged to right a 1760 REGISTRAR AND MERCHANTS. Pt. II. Damages/ damage, raised, at their own expense, the vessel sunk, and offered her to her owner, who claimed as for a total loss ; he refused to take her. Held, that the owner of the sunken vessel was not bound to take her, and might proceed and recover as for a total loss. The Columbus, 13 Jur. 285 ; 6 Notes of Oases, 671 ; 3 "W. Eoh. 165. 314. The vessel, after having been raised, and brought into port, was dete- riorating for want of repairs. Held, that the proper course would have been to apply to the court, stating the circum- stances, and asking for a decree of sale, and that the proceeds might be brought into the registry to abide the event of the suit. tbid. 315. For provisions empowering har- bour master to remove wreck or other obstruction to the harbour, dock, or pier, or to the approaches thereto, and to charge the owner with the expenses, . see The Harbours, Docks, and Piers Clauses Act, 1847 (c. xxvii.), s. 56. 316. For similar provisions as to wreck in the Thames, see The Thames Con- servancy Act, 1857 (c. cxlvii.), s. 86. 317. For similar provisions in the har- bour of Belfast, see The Belfast Port and Conservancy Act, 1852 (c. cxxi.), s. 17. 318. The 56th section of the Harbours Act, 1847, enables a harbour-master to remove any obstruction from a harbour, and recover the expenses of such removal from the " owner." A vessel belonging to W. was wrecked at the mouth of, and obstructed, a harbour. The harbour- master removed it, and brought an action to recover the costs of such removal against W., and also against E., with whom the vessel had been insured, and who had paid as on a total loss. No notice of abandonment was given to E. Held, by the Court of Appeal (affirming the decision of the Queen's Bench Divi- sion), that W. was liable under the statute, and that he was not entitled to recover over against E. The Earl of Eglinton v. Norman, 46 L. J. C. A. 557 ; 3 Asp. N.S. 471. 319. As to the removal of wreck in the Mersey, see the Mersey Docks Act, 1874 (c. xxx.), s. 11. 320. As to the powers of the harbour master in the Clyde for the removal of wrecks, and the recovery of the expenses thereof against the master or owner, see the Clyde Navigation Amendment Act, 1868 (c. cxxiv.), s. 33. 321. As to the removal of wreck in the Humber, see the Humber Conservancy Act (c. 130). 322. Whilst an obstruction in the Humber was being removed, a part- owner died, leaving two executors. The attempts to raise the vessel failed, and she was blown up. Held, that it was for the justices to decide whether the ex- vessel which had capsized, and having done so, negligently removed the supports, in con- sequence of which she again fell over. Held, not entitled to charge for raising her the second time. The Fronwina, April, 1858. E. & M. (241) The plaintiffs' vessel was sunk by the collision. A bond fide but unsuccessful attempt to raise her was voluntarily made by the owners. The registrar held, that as the defendants had to pay for a total loss they were not liable for the expenses of the attempt to raise. The Princess Elizabeth, -1879, 0. No. 409, May, 1880. E. & M. (242) Held (Chief Justice Taney and Jus- tices Catron and Daniel dissenting), that the plaintiffs were entitled to recover a sum suffi- cient, not only to defray the expenses of raising and repairing their vessel, without any deduction of new materials in place of old, as in cases of insurance, but to compen- sate them also for the loss of her probable earnings in the meantime. Williamson v. Barrett, 13 How. 101. [Ameeioait.] (243) A vessel, raised a few days after being sunk and treated as a total loss, was not promptly sold. The expenses occasioned by the' unnecessary delay were disallowed. The Era, April, 1882. E. & M. (244) The owners of a vessel sunk in Cork harbour by collision, were served by the harbour commissioners with notice to raise and remove the wreck. It being found use- less to attempt to raise her, the owners, at considerable expense, destroyed her by means of explosives, and claimed the cost of such operations. Claim objected to on the ground that if the owner had not acted the harbour commissioners, under 10 Vict. c. 27, s. 56 s must have destroyed the wreck free of ex- pense to the owner, there being no proof of negligence. Having regard to the decision in The Earl of Eglington v. Norman, 3 Asp. N.S. 471, and to the fact that at the trial a special decree, by consent, was taken by the owner for a moiety of his damages, less a sum in respect of the pla&tifEs' damages,- the registrar, considering that the decree amounted to an admission of negligence which would render the owner liable for the expenses of removing the wreck had the • operation been conducted by the commis- sioners, allowed the agreed percentage of such expenses to the owner. The Catalonia, ' Oct. 1882. E. & M. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1761 penses of attempting to raise the ship were properly incurred, hut that they had no power to include the executors in their order. Wilson v. Carter, 1 Asp. 287 ; L. E. 1 Ex. 177. 323. See, further, as to the removal of wreck, tit. Wreck. (e) Freight* 324. In causes of damage by collision * (245) Deduction from freight in conse- quence of cargo being landed at Lowestoft instead of London, by reason of the collision, not allowed. The Elizabeth Moore, 1854. E. &M. (246) Vessel damaged on outward voyage. Claim made for loss of homeward freight dis- allowed as being problematical. The Undine, May 22, 1857. E. & M. (247) Charges for brokerage, light dues, &c, will be deducted from the gross freight due. H. M. 8. PembroJce, May, 1858. E. & M. (248) Freight claimed, by owner on goods belonging to the master, and stowed in his cabin, not allowed. The William and Jane, Sept. 1858. E. & M. (249) In cases of total loss the freight is allowed, less deduction for harbour dues, light dues, discharging fees, &c, in fact, the net freight which would have been received by the owner if the vessel had arrived safely. The l'u8carora, July, 1858 ; The Canada, 1 Lush. 586. E. & M. (250) A deduction is made for discharging fees. The Fidelia, April, 1858. E. &M. (251) On a question of repairs of damages sustained in rendering salvage assistance, plaintiffs proved that they were large shippers of goods from L. to M. ; that the A. S., the vessel damaged, was one of a regular line of steamers trading thither; that there was a rival line ; that in the usual course of trade plaintiffs generally had a full cargo by their vessels sailing shortly before Christmas ; that on this occasion they had received about 1,000 tons of goods for transmission by the A. S. ; that a full cargo would be from 1,750 to 1,790 tons; that ordinarily large quantities of goods are received for shipment during the last two days of loading ; that when it became known the A. 8. had gone into dock for repairs all further consignments of goods to be taken by her ceased, and applications were made, and some of them acceded to, for return of goods sent ; that goods which would have gone by the A. S. probably went by the steamer of the opposition line advertised to sail when the A. S. should have sailed ; that the A. S., when she sailed, had about half a cargo only ; and that the gross outward freight onthat voyage was £1,754, but was on the next preceding voyage £2,689, the difference be- tween the two voyages being the sum claimed, the rates of freight for those voyages being the same. It was elicited that on other voyages the amount of freight had ranged between £1,150 and £2,250, but with different rates of freight ; but it was not proved what freight the A. S., or any similar vessel engaged in the same trade, had earned on voyages at the same period in preceding years. Held, that the evidence established a probable loss of freight in consequence of the detention, but no specific amount, and £500 allowed for such loss of freight accordingly. The Gla- diator, No. 1594, April 29, 1864. E. & M. (252) Damage by collision to the 0. S. in the Australian seas. A charter-party had previously to the collision been sent out from England to the master of the C. S., for the conveyance of a cargo from Moulmein to England. Claim of £3,000 for loss of charter. It was not proved that the charter-party ever reached the master, and it appeared uncer- tain whether, independently of the collision, the master could have carried out the charter- party. Claim disallowed. The South Sea, Swabey, 141. E. & M. (253) The C. was run down and totally lost in the English Channel. She was at the time on a voyage from Newcastle, and laden with a cargo of coals for Cadiz, whence she was to carry a cargo of salt to South America, pursuant to a charter-party entered into be- fore she left Newcastle. Held, that the plaintiffs were entitled to the net freight on both the coal and salt cargoes. II. M.S. Fork, Oct. 1864. E. & M. (254) The plaintiffs in an action of damage claiming for the total loss of their vessel on her outward voyage, were allowed the home- ward freight which would in all probability have been earned under the charter-party if the collision had not occurred. The Appendix, Nos. 5853, 5856, 5876, Feb. 1872. E. &M. (255) At the time of the collision the vessel was prosecuting the last of three voyages pro- vided for by the charter-party ; but whereas the previous voyages had been in strict accord- ance with the charter, the voyage in question had, under another charter entered upon b}' the parties, been slightly varied by the carriage of cargo to an intermediate port. Evidence having been adduced that the vessel had started equipped for the whole voyages out and home, the registrar held, that the legal ' inference was that she had sailed in pursu- ance of the earlier charter, and that the call at the intermediate port was in pursuance of a subsidiary and consistent charter. The claim for the homeward freight was therefore allowed. Ibid. (256) Where a cargo shipped on owner's account was lost by collision, the registrar and merchants in assessing the loss united the claim for cargo and freight, and allowed the sum realized by similar cargoes belonging to the same owner. The Eothesay, April, 1882. E. & M. 1762 REGISTRAR AND MERCHANTS. Pt. II. Damages. the gross freight is not to he allowed, hut deductions must he made therefrom for the expenses incident to the earning and receipt of freight, such as wages, pilotage, tonnage, and other dues, and lighterage and other expenses of discharge and de- livery of cargo. The Gazelle, 2 W. Eoh. 279 ; 8 Jur. 429 ; 3 Notes of Oases, 75. 325. There is a material distinction between insurance cases which are cases arising ex contractu and cases of damage hy collision which are ex delicto. Ibid. ; 2 W. Rob. 283. 326. The rule in insurance cases as to the allowance of gross freight will not therefore he followed in damage cases. Ibid. 327; In insurance cases the gross freight is allowed without any deduction for the necessary expenses of earning it. Palmer v. Blackburn, 1 Bing. 6. 328. The court will order payment of the amount of freight in the master's hands and lost in the collision. The Cumberland, 5 L. T. N.S. 496 ; 6 Irish Jur. N.S. 325. 329. As the master has, in some cir- cumstances, the duty cast upon him of acting as agent for the cargo as well as the ship, the making of a protest, and the ohtaining of the necessary official docu- ments, in a foreign port relating to the damage to hoth ship and cargo, are busi- ness directly connected with the collision. The City of Buenos Ayres, 1 Asp. N.S. 169. 330. Delay in their preparation caused hy the dilatoriness of the foreign autho- rities, and hy no default of the master, is chargeable to the collision. Ibid. 331. Quaere, whether transhipment and forwarding of cargo can be said to he business connected with the collision. Ibid. 332. The vessel 0., which was proceed- ing in ballast to Montreal to load a cargo of grain for the TJnited Kingdom, pur- suant to charter-party, was injured by collision with another vessel, and com- pelled to put into port to repair. The repairs necessarily occupied so long that it was not reasonably possible for the 0. to have arrived at Montreal in" time to fulfil her charter-party before the naviga- tion of the St. Lawrence was stopped by ice for the winter. The owners of the 0. therefore abandoned the charter, and it was found that they acted prudently in so doing. Held, that the loss arising from the abandonment of the charter was a loss caused by the collision. The Consett, 5 P. D. 229. 333. V. & Co. shipped their own coal on board their own ship, the A., from Liverpool to Valparaiso, and the master signed, a bill of lading deliverable to V. & Co., or assigns, paying freight at twenty-three shillings per ton, and in- dorsed on it a receipt for £1,000 on account of freight. An insurance was effected on advanced freight valued at £1,000, and the plaintiffs became assignees of the bill of lading and policy on mating an advance of £1,650 to Y. & Co. The difference in value between the coal at Liverpool and Valparaiso would have greatly exceeded £1,000. The A. was wholly lost through a collision with the (257) In assessing a claim for freight lost hy reason of a ship being run down, the registrar deducted the freight which had been advanced before sailing, and also the amount which would have been expended in com- pleting the voyage and earning the freight, such as coals, stores, provisions, wages, &c. The Aberfoyle, August, 1883. B. & M. (258) A steamer on her way to Middles- brough in ballast, and chartered to carry a cargo of pig-iron thence to Dantzic, and re- turn with a cargo of oak staves to London, was run down and sunk. The freight for the above two voyages was allowed less the pro- bable cost of earning it. The Breeze, March, 1884. E. & M. (259) "Whilst loading a cargo of wood at Uleaborg for Penarth Eoads for orders a vessel was further chartered to load a cargo of timber at Pensacola for the United King- dom, with liberty to carry an outward cargo to Pensacola for owners' benefit. On her passage from Uleaborg to Penarth Eoads she was m collision in the English Channel, and was towed into Oowes in a waterlogged condition, condemned and sold. Her owners claimed not only the freight for the voyage she was prosecuting, but for the Pensacola freight. The second freight was disallowed, on the ground that she had not completed her first voyage, or was at the disposal of the charterers, or directly bound for her loading port, or that any preparations had even been made for the outward voyage. The Kaikoura, August, 1885. E. & M. (260) A vessel, under charter, owing to a collision and delay in repairs, arrived at the port of loading thirty days after the time speci- fied in the charter-party, and the charterers elected to cancel the charter. The vessel after- wards obtained less profitable employment, and her owners sought to recover the differ- ence from the other vessel. Held, on the reference that the loss sustained by the can- celling of the charter-party was not occasioned by the collision. The Ballus, No. 6314, January, 1874. E. & M. See also note 192, p. 1751. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1765 T., for which the T. was alone to hlame. Held, that the plaintiffs, who were suing for the underwriters on the policy, were entitled to recover against the T. the £1,000, as aportion of the coal's enhanced value at Valparaiso, which enhanced value had been insured and transferred to the plaintiffs under the name of ad- vanced freight. The Thyatira, 8 P. D. 155 ; 52 L. J. P. D. 85 ; 5 Asp. 147, 178. 334. In another action against the T. Messrs. V. & Co. had teen awarded by the registrar and merchants the amount of disbursements made, in order to earn the so-called freight, but the judge re- ferred the matter back to the registrar to reconsider his report. Ibid. 335. The delay occasioned by the ne- cessity of repairing the plaintiff's vessel, enabled the charterers of the vessel at the time of the collision to cancel the charter- party, and the plaintiffs were obliged to enter into another charter-party at a lower freight. Held, that compensation ought to have been awarded for the difference between the freight actually earned and the freight under the cancelled charter- party, after deducting the difference be- tween the voyage to be performed under the cancelled charter and the shorter voy- age actually made, the saving of wear and tear to the vessel, and for the uncertainties and perils incident to sea voyages, and report directed to be amended accordingly. The Star of India, 1 P. D. 466 ; 45 L. J. Adtn. 102; 3 Asp.. N. 8. 261. 336. The amount payable in respect of compensation for dead freight where it is unliquidated, is such reasonable amount as the shipowner would have earned, after deducting such expenses as he would have incurred, if a full cargo had been sup- plied. McLean v. Fleming, 1 Asp. N.S. 160. 337. The vessel run down being a fish- ing smack on a voyage to receive a cargo of lobsters, and so damaged that it became necessary to hire another smack for the purpose, a reference directed to the regis- trar and merchants, to report the amount of freight paid to the vessel substituted for the smack, in order to its being allowed as consequential damages. The Yorkshireman, 2 Hagg. 30, n. 338. A charter-party stipulated for certain payments to the owners of cargo as commission and penalties in case of non-fulfilment of charter-party. These payments became due. Held, that they were, together with the costs of paying the freight into court, proper deductions from the gross freight due to the owners of the damaging vessel. The Leo, 1 Asp. 200. 339. It will not be sufficient to aver that the vessel, if she had not been detained in dock, might have earned certain probable freight. The opportunity of earning, and the loss of that opportunity, must be established. The Clarence, 3 W. Eob. 283 ; 14 Jur. 557 ; 7 Notes of Cases. 579. 340. As to freight generally, dead freight, advance freight, &c, see tit. Goods, Caeeiagb of — , Pt. VII. p. 467. 341. As to the allowance of freight in cases of costs and damages, see c. 8, p. 1776. (f) Demurrage.* 342. "When a ship has been damaged * (261) See also notes 159, 242, supra. (262) In estimating demurrage the re- gistrar and merchants will consider not only the time which was occupied in effecting the repairs, but the time in which they might with due expedition have been completed. The Bernhardina, June, 1858. E. & M. (263) The usual allowance for detention made by the registrar and merchants in cases of coasters and small vessels is 4d. per ton per day. The Christiana, April, 1857. E. & M. (264) This allowance presumes the crew to havo been justifiably detained on board. A proportionate reduction is made when the crew are not or ought not to have been retained. (264a) Some members of the crew having been unnecessarily kept by the vessel, the terms of the articles allowing of their dis- charge, the cost of such members of the crew was disallowed from the demurrage. The James Harris, Jan. 1882. E. & M. (265) During the repairs to a fishing smack her crew were kept on pay when they could have been discharged at a week's notice. The claim for demurrage after such week was reduced. The Regent, April, 1882. E. & M. (265a) Demurrage per ton is calculated upon the registered tonnage of vessels and not upon their burthen. The James, May, 1859. E. & M. (266) Steam coasting vessel damaged by collision. Held, that the officers and en- gineers might properly be retained in the ship's service during the repairs, but the seamen should have been discharged. The Venezuela, May, 1858. E. & M. (267) Wages paid during repairs to a crew hired for the voyage, allowed. The Van- guard, July, 1857. E. & M. (268) It was proved that the amount paid for insurance of the vessel — a large and valuable steamer — was from £5 to £6 a day; 1764 REGISTRAR AND MERCHANTS. Pt. II. Damages. by collision the restitutio in integrum to which, her owners are entitled, consists of the' expenses of repairs and a just compensation for the non-employment of that the owner's regular expenses for her were about the same amount, and that the estimated profits were from £15 to £20 a day. Claim for demurrage at the rate of £30 a day allowed. The Gladiator, No. 1594, April 29, 1864. E. & M. (269) A large and valuable steamer damaged in rendering salvage services was compelled to go into dock to repair damages and be painted, and claimed in consequence for nine days' detention. It was proved that the vessel was usually docked and painted every third voyage, that this occupied from two to three days, and that on this occasion it was her turn to be docked and painted, but that, for special reasons, this would, but for the damages, have been postponed until after her next voyage. Held, that the expense and loss of time in docking and painting the ves- sel on this occasion, as it must otherwise have been incurred after her next voyage, should be deducted from the claim, and six days' detention only allowed. Ibid. E. & M. (270) A vessel which had been damaged by collision and by grounding previous to the collision, was thirty-two days under re- pair. The registrar and merchants disallowed four days' demurrage as being necessitated by the damage sustained before the collision, and allowed twenty-eight days' demurrage in respect of the collision. The Eallus, No. 6314, January, 1874. E. & M. (271) Indemnity claimed by master for loss of time and earnings in consequence of loss of vessel disallowed, as interest is in- tended to cover those items. The Britannia, August, 1858. E. & M. (272) In dealing with a claim for demur- rage preferred by the owners of a vessel which had been windbound at the time of collision, the registrar and merchants refused to enter upon speculations as to the probable delay in the ship's progress, even if no col- lision had occurred. The Dovercourt, No. 3099, January, 1867. E. & M. (273) Although as a general rule demur- rage is calculated at a rate per ton on the vessel's tonnage, yet where the vessel is of a peculiar description and employed in a special manner during certain months only, the registrar and merchants will allow an equit- able sum as compensation for the loss of such special employment. The Gleaner, 1877, N. No. 328, May, 1878. E. & M. (274) Demurrage is allowed as compensa- tion for expenses actually incurred, such as crew's wages, &c, and for the temporary loss of the use of the vessel, which represents capital. The Tiryah, 1878, L. No. 267, May, 1879. E. &.M. (275) The fact that the vessel has been, for some time previous to the collision, worked at a loss will not be adopted as a guide to the allowance of demurrage. Ibid. (276) A steamship was damaged by collision at a time when, although no charter had been entered into, very profitable employment was obtainable. Before she was ready to resume trading freights had materially declined. In allowing demurrage, the registrar, con- sidering the facts fully proved, allowed a special and liberal sum for demurrage upon the ground that according to the decision in The Star of India (1 P. D. 466, and No. 335, supra) the plaintiff's claim for loss of an immediate profitable employment was not so remote as to justify him in rejecting it. The Wimbledon, 1878, Q. No. 145, Feb. 1879. E. &M. (277) Demurrage will not be allowed pend- ing the repair of damage occasioned by the collision if the vessel is necessarily under repair from other causes throughout the period for which the demurrage is claimed. The Lloyds, 1881, G. No. 401, Fo. 114, Dec. 1881. E. & M. (278) The measure of damages for a col- lision whereby a vessel is sunk includes, in addition to the expenses incurred in raising and repairing the vessel, the market value of the use of the vessel during the time neces- sary to make the repairs and fit her for use (Taney, C. J., Cathron and Daniel, T. J., dissenting). Williamson v. Barrett, 13 How. (U. S.) 101. [AMERICAN.] (279) The loss of the use of the injured vessel whilst undergoing repairs is so directly consequential to the collision as to be entitled to compensation. The Narraganseit, Olcott, Adm. 388 ; Vantine v. The Lake, 2 Wallace, jun. 52. [American.] (280) The value of the services of a vessel while she is undergoing necessary repairs for the injuries received, is to be allowed. The maritime law is less stringent in this respect than the common law. The Narragansett, 1 Blatch. Ct. Ot. 211; Olcott, Adm. 388; The Rhode Island, 1 Abb. Adm. 100 ; William- son v. Barrett, 13 How. 101; Catherine v. Dickinson, 17 How. (IT. S.) 170 ; Atcheson v. Steamboat Br. Franklin, 14 Miss. 63; Walder- man v. Beckwith, 4 McLean, 286 ; Barrett v. Wilkinson, Ibid. 589. [American.] (281) The vessel's expenses while under- going repairs allowed. Minor v. The Steamer Picayune, La. An. 564. [American.] (282) Seasonable demurrage for a period necessary to reinstate the injured vessel will be charged upon the vessel in fault. The Rhode Island, Olcott, Adm. 505. [American.] (282a) When the property is restored after a detention, demurrage is allowed for deten- tion of the ship and interest on the value of the cargo. The Appollon, 9 Wheat. 377. [American.] (283) The registrar and merchants in deal- ing with a claim for demurrage in respect of a very small vessel, took into account the fact that the cost of crew's wages, provisions, &c. would be proportionately larger than REGISTRAR AND MERCHANTS. Pt. II. Damages. 1765 the ship during the repairs, that compen- sation Deing the expenses of detention and the amount of profit lost. H. M. S. Inflexible, Swabey, 204 ; 28. L. T. 374 ; 5 W. E. 517. 343. The compensation should be reck- oned from the period when the vessel, in the ordinary course, would have been ready for sea if there had been no colli- sion up to the time when with due dili- gence the repairs ought to have been completed. Ibid. Swabey, 205 ; The Hebe, 5 Notes of Cases, 182 ; 2 W. Eob. 530. 344. The measure of damages for de- tention is not what another vessel earned, but what, according to reasonable proba- bility, all contingencies being taken into consideration, the vessel damaged would have earned. The Hebe, Ibid. 345. The owner's books are the best evidence of probable earnings, and should be produced. Ibid. 346. The custom and responsibilities of a ship engaged in the East India trade as regards the retention of Lascars and European officers to take care of them while the ship is in an English port are to be considered, and such expenses viewed as necessary, and allowed for accordingly. H.M.S. Inflexible, Swabey, 204 ; 28 L. T. 374 ; 5 W. E. 517. 347. The true measure of the length of demurrage caused by a collision is the length of time which, by reason of the collision, the vessel has been thrown out of her usual employment. The Black Prince, 1 Lush. 568 ; 5 L. T. N.S. 39. 348. The A. was one of a line of those in a bigger vessel. Eileandubh, August, 1883. E. & M. (283a) Interest at the rate of 6 per cent, per annum allowed upon the value of the vessel before the collision, for the interval after the collision, until she was repaired and fitted to resume her trips on appeal. Held, that the allowance was right in the particular case, no vessel having been hired to supply her place. The Rhode Island, 2 Blatch. Ct. Ct. 113. [American.] (284) A steamer trading between the Bristol Channel and the river Seine was damaged by collision in that river. She was taken to Middlesbrough and repaired, and then resumed her employment. Her owner's claim of fifteen days' loss of time for such removal disallowed, on the ground that the vessel could and might have been re- paired in the Bristol Channel. The Ernest, July, 1882. E. & M. (284a) A yacht was damaged by collision, and not repaired until three months after arrival in port. No demurrage or interest was allowed, the owner having shown no anxiety to refit her for sea. A sum in respect of the crew's wages during the tem- porary repairs was allowed. The Stephenson, May, 1883. E. & M. (285) Two large hopper barges had been specially constructed to work with a dredger. The dredger was disabled by a collision, and as the hoppers were rendered useless during the time the dredger was under repair, the plaintiffs (a dock board) claimed by way of demurrage interest on the cost of the three vessels. Assuming the case to have been one in which demurrage was allowable, the regis- trar and merchants were of opinion that the method of computation was not an unfair one. The Clarence, Nov. 1883. E. & M. (286) In assessing the demurrage of a tug, the registrar and merchants allowed a sum which, in their opinion, fairly represented her net earnings. The Mary Anning, Nov. 1883. E. & M. (287) A large steamer on her way to dry dock to undergo extensive structural altera- tions and repairs was damaged by collision. The registrar and merchants being of opinion that the comparatively small damages arising from the collision could have been repaired in a few days, and without interfering with the progress of the owners' repairs, disallowed the claim for demurrage. The Mammoth, Jan. 1884. E. & M. (288) A vessel while at anchor drifted upon and injured the E., also at anchor. The E. was repaired where she lay, but on proceed- ing to weigh anchor it was found that the chains of the D. were foul of her anchors, and further delay'and expense were caused before the E. could clear her anchors and sail. Demurrage in respect of this detention was objected to ; but the objection was over- ruled on the ground that the E. was not bound to lift her anchors until she was ready to sail. The Eugenie, March, 1884. E. & M. (289) A French steamer was damaged by collision, and it was contended on the re- ference that an exceptionally high rate of demurrage should be allowed, on the ground that the French Government subsidizes the owners by paying a certain sum per ton for every thousand miles run under steam. The contention was rejected, on the ground that without such subsidy it would appear the ship would not be employed at an adequate remuneration, and not that with such sub- sidy her earnings were exceptionally large. The demurrage was therefore allowed on the scale usual in the case of English steamers of a similar class. The Olencoe, May, 1885. E. & M. (290) The fact that a subsequent necessity arose for more extensive repairs does not relieve the wrong-doer from his liability for the detention of a vessel for repairs in conse- quence of a collision. The Redewater, June. 1885. E. & M. 1766 REGISTRAR AND MERCHANTS. Pt. II. Damages. steamers belonging to different owners, which toot turns for sailing at fixed in- tervals. In the ordinary course of busi- ness each vessel on returning home was a certain time idle in port. The A., in con- sequence of a collision, was obliged to undergo repairs, and lost her turn, which was taken by another steamer on the line. The A., as soon as repaired, took the next turn. Held, that the measure of demur- rage was not the length of time the A. was undergoing repairs, nor the difference between the usual time of her being in port and the actual time she was in port on this occasion, but the number of days she was detained beyond the date on which, but for the collision, she would have sailed in her regular turn. The Black Prince, 1 Lushington, 568; 5L.T.N.S.39. 349. It was proved that the value of the steamer A. was £25,000, and that she had cost six years previously £30,000, and was kept in good repair. -Demurrage allowed at the rate of £25 per diem. Ibid. 576. 349a. The M., whilst awaiting her turn to enter a dry dock, which had been en- gaged to enable her to repair damages sustained by stranding, was fouled by another vessel during a gale, her pro- peller and shaft being damaged by the collision. The same gale caused another vessel to sink just off the dry dock, which was thereby rendered inaccessible, and remained so during fifteen days, when the wreck was removed. The M., which had renewed her engagement with the dry dock, no other being available, then entered it, and in six days repaired all her damage. Of the six days, three were occupied in making good the strand- ing damage, and three in repairing the collision damage. Whilst the M. was waiting to enter .the dry dock, a spare propeller which she had on board had been got ready, and a new shaft pre- pared, all the preliminary work being completed before the dock was ready to receive her. Demurrage was claimed for eighteen days, viz., three days occupied in repairs, and the fifteen days during which the preliminary work was com- pleted. The registrar only allowed three days' demurrage, on the ground that, as her dock was blocked, she must have waited during the fifteen days, even had no collision happened. On appeal to the judge, and afterwards to the Court of Appeal, it was held that, until the neces- sary preliminary work was completed, the fact that the dock was blocked was immaterial. Further demurrage was therefore allowed. The Kepler, 1877, Q. No. 281, May, 1877. 350. With respect to the propriety of a ?■ '"' charge for loss of employment of a vessel occasioned by her detention to undergo repairs consequent on a collision, the court considered the registrar and merchants more peculiarly competent to form a proper estimate of the propriety of such charge, and accordingly refused to alter the report in that respect. The Alfred, 3 W. Eob. 243 ; 7 Notes of Oases, 579. 351. It does not follow that anything is due for the detention of a vessel whilst under repair, though under some circum- stances such a consequence will follow, as where a fishing voyage is lost, or where the vessel would have been beneficially employed. The Clarence, 3 W. Eob. 285 ; 14 Jur. 557 ; 7 Notes of Oases, 579". 352. It will not be sufficient to prove the general rate of the ship's earnings, and that if she had not been detained in dock she might have earned freight. The opportunity of earning, and the actual loss of that opportunity, must be esta- blished. Ibid. 352a. £800 allowed to a fishing brig as demurrage or compensation for loss sus- tained by the interruption of her fishings, such sum being arrived at from evidence as to the value of the takes of other ves- sels during such interruption. The Riso- luto, 8 P. D. 109; 52 L. J. P. D. 46; 5 Asp. 93. 353. Claim of a steam company for demurrage, at the rate of £20 per diem during the repairs, as being the amount at which the vessel might have been hired, not allowed by the registrar and merchants, on the ground that there was no sufficient proof that an actual loss had been sustained. Objection to their report overruled. Ibid. 354. A fishing vessel was sunk in a collision, and the full value awarded by the court, as for a total loss. Held, that nothing in the nature of demur- rage could be recovered by the owner, who was also the master, for loss of employment of his vessel or his own earnings. The Columbus, 3 W. Eob. 159 ; 13 Jur. 285 ; 6 Notes of Cases, 671. 355. Demurrage is allowed to the owners of a ship during the time she is necessarily delayed for repairs rendered requisite by the collision, for the transact- ing of business directly connected with the collision. The City of Buenos Ayres, 1 Asp. N.S. 169. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1767 355a. The rate of demurrage allowed to steam vessels of the ordinary class carry- ing cargo is 6d. per ton on the gross ton- nage, or 9d. per ton on the net tonnage -per day. This estimate is arrived at by doubling the amount of the wages of the crew and of the cost of their provisions, so as to include both expenditure and loss of trade. Ibid. 356. A ship, G., insured by a policy containing the usual collision clause, came into collision with the plaintiff's ship, "W. H. The G. was arrested in the Ad- miralty Court, and an agreement, the parties to which were the owners of the two ships and the managers of the insur- ance company, was entered into, by which the G. was to be released on the payment by her owner or the insurance company of " the amount ( of damage which the W. H. had received from the collision," and the costs of the proceedings in the Ad- miralty Court ; and in case of dispute as to the " amount of damages claimed by the plaintiffs by reason of the collision," the amount was to be settled by an arbitrator. The G. was released under the agreement, and the amount of damages was referred to an arbitrator, who awarded a certain sum for the damages, and also a separate sum for detention while the damage sus- tained was being repaired. Held, that the plaintiffs were entitled to recover for the detention, as well as for the damages received. Heard v. Holman, 11 Jur. N.8. 544 ; 13 W. B. 745 ; 12 L. T. N.S. 455. 356a. In calculating fines for demurrage under a charter-party, the smallest por- tion of a day will be considered as an entire day. The Thorny Close, 5 Jur. 251. [Ieish.1 357. See also, as to the allowance of demurrage, under Costs and Damages, c. 8, p. 1776. (g) Cargo. (aa) Generally.* (bb) Loss of Market. \ 358. By reason of a collision, the goods on board the innocent vessel did not arrive until the market price had fallen. In an action by the goods owner against the wrong-doing vessel, held, that da- mages for loss of market were too remote, and could not be recovered. Affirmed on appeal. The Notting Hill, 9 P. D. 105 ; 53 L. J. P. D. 56; 5 Asp. 241. 359. Claim of consequential damage to cargo, arising from the vessel having been run ashore in consequence of the collision, rejected, as not sufficiently proved to have been caused by the collision. The Eolides, 3 Hagg. 367. 360. The P., bound from Gallipoli to St. Petersburg, came into collision in the Channel with the' A., and was compelled to put into Newhaven to repair damages. The A. claimed compensation for the in- juries sustained, and for the consequential loss caused by her detention at Newhaven beyond the Baltic season. The court pronounced for the damage generally, and referred the claims to the registrar, and merchants, observing that before pronouncing for the consequential damage it would require it to be satisfactorily proved that every possible exertion was made by the owners of the P. to arrive at St. Petersburg, get in a cargo, and come back again. The Aline (1839), 5 Monthly Law Mag. (Notes of Cases), 302. 360a. See also, as to loss of market in actions of damage to cargo, Nos. 203 — 206, p. 1741. (cc) Fish.% 361. A fishing smack was disabled by * (291) At the time of the collision the plain- tiff's vessel was proceeding to a foreign port, where cargo had been engaged for her, and where, by reason of the collision, she arrived one month later. Under an arrangement customary in the trade the purchaser of the cargo had to pay a sum in respect of the month's delay for interest, warehouse rent and insurance. Held, that the loss was a direct consequence of the collision, and the item allowed. The Cyprian, 1878, S. No. 345, Jan. 1880. E. & M. (291a) See also notes 228, p. 1754; and 256, p. 1761. t (292) Claims for loss of market will be rejected, as they involve conjecture and are subject to many contingencies. The J&gean, No. 6009, June, 1873. E. & M. (293) Estimated profits of a voyage which could have been made while the damage done to the vessel was being repaired, allowed. The Frederick Warren, Sept. 26, 1855. E. & M. (294) In estimating the measure of da- mages in cases of collision the loss of profits by the voyage is too remote and consequen- tial. Cummins v. Spruance, 4 Harring. 315. [American.] (295) See also notes 111—119, pp. 1740, 1741. X (296) The ordinary rule as to the allow- ance of demurrage, for which see notes 261 — 290, supra, being obviously inequitable in the case of a fishing vessel, the registrar and merchants will consider her probable 1768 REGISTRAR AND MERCHANTS. Pt. II. Damages: collision from pursuing her voyage from London to Norway to receive a cargo of lobsters, in consequence whereof her owners were obliged to hire another smack for that purpose. Damages were decreed for the amount of freight paid for the 1 vessel substituted. The Yorh- vhireman, 2 Hagg. 30, n. 361a. Claim sustained for damage to smack by collision, and loss of fish caused thereby. The Konigsberg, Dec. 3, 1839. 362. The plaintiff, in an action of da- mage by collision, claimed for demurrage upon the basis of the loss of fishing dur- ing repairs, and the registrar and mer- chants estimated that loss by taking into account the average catch of similar vessels during the period of repairs. The court on objection to the registrar's report con- firmed the report with costs, the Riso- luto, 8 P. D. 109; 5 Asp. 93. 362a. See also No. 354, supra. As to -the allowance for loss of fish by salving vessels while effecting salvage, tit. Salvage, c. 14. (h) Salvage,* 363. In every case of collision between two vessels, it shall be the duty of the earnings in allowing a sum to her owners as compensation for loss of user during repairs. The Regent, 1881, 0. No. 6594, Fo, 480, April, 1882. E, & M, (297) "Where, as in the case of a fish cargo, the loss of market constitutes an im- mediate and inevitable damage, compensation for the delay occasioned by the collision will be allowed. The Blonde, 1880, H. No. 43, Nov. 1880. E. & M. (298) The plaintiffs' vessel, a fishing smack, was sunk by the collision whilst lying to her nets. The fishing season con- tinued for a few weeks longer, and a sum was accordingly claimed and allowed in re- spect of her probable earnings during such period. The J. H. Bowers, 1879, W. No. 352, Feb. 1880. E. & M. (299) In dealing with a claim for demur- rage in respect of a. fishing smack, which was sailed by the master and crew on the share principle, the ordinary rule as to de- murrage was held to be inapplicable. Her estimated probable earnings plus a sum in respect of the crew properly detained were allowed. The Regent, April, 1882. E. & M. (300) It was stated on a reference to ascer- tain the loss of a smack's fishing, that the custom was to deduct from the gross earn- ings of the vessel the commission on the sale of the fish and the crew's food, and to divide the balance into shares. The regis- trar, in addition to the above two items, deducted a further sum for the wear and tear of the nets, &c, and also an item for wages of the crew, which he considered they might and ought to have earned ashore during the repairs, The Reiher, July, 1882, E. & M. * (301) The E., having drifted athwart the bows of the Gr. which was at anchor, remained in contact for five hours, when a tug removed her. The tug claimed and, without reference to a court of law, received salvage reward from each vessel. The E. having been found to blame for the collision, the Q-. sought to include in her damages the sum she had paid to the tug. The registrar being of opinion that had the vessels remained longer m col- lision, the G. would have sustained further damage; held, on the implied authority of the H. M. Hayes, 1 Lush. 375, that the tug had rendered salvage assistance to the G. The Elizabeth, No. 3459, August, 1867. E. & M. (302) The sum paid by the G. was there- fore allowed against the E. Ibid. (303) See also The Vandych, 7 P. D. 42, in support of the registrar's view that the tug's claim against both vessels was sustainable. Ibid. (304) Semble, a bona fide agreement en- tered into with the salvors of a vessel damaged by collision will under ordinary circumstances be sustained by the registrar and merchants, and the amount stipulated for allowed against the vessel in default. The Eliza Caroline, No. 4448, April, 1869. E. & M. (305) The plaintiffs' claim in an action of damage included an amount paid for salvage assistance rendered necessary by the collision. The registrar considered the amount paid was out of all proportion to the services; but as the payment was made in good faith, and the settlement of the salvors' claim without litigation had saved costs, the item was allowed in full. The Benwell, No. 7389, Nov. 1875. E. &M. (306) An item in the plaintiff's claim was for a sum paid as salvage reward for services rendered necessary by the collision. The amount had been agreed upon and the pay- ment had been made bond fide, but the registrar considered it excessive and allowed a lesser sum which in his opinion would have covered both salvage and costs if the salvors' claim had been contested. The Malta, 1880, F. No. 723, Fo. 224, Feb. 1881. E. & M. (307) A sum of £300 paid to salvors of the plaintiffs' vessel, which had been damaged by collision, and included in the claim, re- duced to £200, the former amount being deemed extravagant remuneration for the services. The Allerton Packet, No. 5183, Aug. 1870. E. & M. (308) Damage suffered by the disabled vessel in the course of reasonable and proper efforts to save her is a consequence of the condition in which she is left by the wrong- doer, and is therefore properly chargeable. The Narragansett, \ Blatch. Ot. Ot, 211. [American.] REGISTRAR AND MERCHANTS. Pt. II. Damages. 1769 master or person in charge of each vessel, if and so far as he can do so without danger to his own vessel, crew, and pas- sengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew and passengers (if any) such assist- ance as may be practicable, and as may be necessary in order to save them from any danger caused by the collision, and also to give to the master or person in charge of the other vessel the name of his own vessel and of her port of registry, and of the port or place to which she be- longs, and also the names of the ports or places from which and to which she is bound. The Merchant Shipping Act, 1873 (c. 85), s. 16. 363a. For cases of salvage by one ves- sel of another vessel with which she has been in collision, see tit. Salvage, c. 5, s. 2. 364. It has always been the custom in the Court of Admiralty whenever a cause of damage has been brought and the plaintiff's vessel has received salvage assistance, for the salvage paid, and the costs on both sides in the salvage suit, to form part of the olaim for damage. The Legatus, Swabey, 138; 5 W.E. 154; The Betsey Caines, 2 Hagg. 30. 365. The ships Or. and L. came into collision, after which the G. was aban- doned by her master and crew, and picked up by another vessel and carried to Madeira, by which a large salvage expense was incurred. In a cause of collision both vessels were held to be in fault. On a further question whether the expense of salvage was to form part of the damage which would be divided be- tween the vessels ; held, that under the circumstances the Q-. was improperly abandoned through want of ordinary skill and resolution in her master and crew, and that the salvage expense in- curred was chargeable to such miscon- duct, and should therefore form no part of the damages arising from the collision. The Linda, Swabey, 306; 4 Jur. N.S- 146 ; 6 W. E. 196 ; 30 L. T. 234. 366. Where two vessels are in CDllision and are entangled together in a position dangerous to both, salvors, who by towing one of the vessels clear, free both vessels from danger, are entitled to recover sal- vage reward from the owners of both . vessels. A screw steamship drifted during a gale of wind across the bows of a ship at anchor in the Mersey, and with her propeller caught the anchor chains of the ship, and the two vessels were held to- gether in a position dangerous to both. A steamship went to the assistance of the ship, and held her whilst her chains were slipped and towed her clear of the steam- ship. Held, that the tug was entitled to salvage reward from the owners of the steamship. The Vandyck, 7 P. D. 42. 367. As to damages from collision while rendering salvage services, see Pt. I. c. 14, p. 1732. (i) Towage.* 368. When the collision makes the hiring of a steam-tug necessary, the cost (309) The owners of the injured vessel will be allowed salvage expenses and other charges necessarily paid by them in rescuing the vessel and cargo from perils they were placed in by the collision. Ibid. Olcott, Adm. 388. [Ameeican.] (310) Also for towage expenses in bringing the disabled vessel into port. Minor v. Steamer Picayune, 13 La. An. 564. [Ameri- can.] (311} Services of a salvage character ren- dered in saving and restoring the injured vessel and cargo will be compensated by sal- vage reward. Ibid. (312) They will not be limited to a quantum meruit for mere work and labour. Ibid. S!13) A bond fide adjustment of such claims charges between parties interested in the vessel and cargo will be accepted by the court as a proper mode of fixing the valuation of the services. Ibid. * (314) A vessel being towed from one port to another under an agreement for £87, was p. during the voyage damaged by collision. Her tug thereupon rendered salvage services to her, and recovered £200 as salvage. Held, by the registrar and merchants, that the amount to be recovered by the damaged ves- sel from the wrongdoer was the difference be- tween the two sums. The Queen of the East, January, 1882. E. & M. (315) Surveyors summoned by the master of a vessel damaged by collision recommended towage to a distant port at which to repair. The master of the wrongdoing vessel objected to this course and summoned other surveyors, who reported that the towage was unneces- sary. The event proved that the towage was unnecessary, but the registrar acting upon the advice of the merchants and waiving his own opinion, allowed the amount paid for the towage on the ground that the report of the first set of surveyors justified the expense. The Mahn Bulesliwar, No. 6453, March, 1874. E. &M. 1770 REGISTRAR AND MERCHANTS. Ft. II. Damages. of the tug must be allowed, though the vessel would probably have hired a steam- tug had there been no collision. H. M. S. . Inflexible, Swabey, 200 ; 5 "W. E. Adm. 517 ; The Venezuela, May, 1858. 369. A vessel bound for Cardiff was damaged by collision in the neighbour- hood of the Start. She was towed inside Plymouth breakwater, and having been temporarily repaired, she was towed to her destination and there permanently repaired. Having regard to the fact that these proceedings avoided the risk of having to discharge and reload cargo at an intermediate port, the costs of towage was allowed by the registrar and mer- chants, although the plaintiffs contended that the repairs could have been effected .quite as cheaply and more expeditiously at Plymouth. The Elginshire, November, 1883. The report was objected to, but confirmed by the court. (j) Costs of defending Salvage Actions. See Costs, c. 33, s. 10, p. 402. 4. For Breaches of Charters * 370. The defendants in a cause of damage by collision admitted their lia- bility. It was proved before the registrar that the delay occasioned by the necessity of repairing the plaintiff's vessel, enabled the charterers of the vessel at the time of the collision to cancel the charter-party, and the plaintiffs were obliged to. enter into another charter-party at a lower freight. Held, by the court, that .the registrar ought to have awarded compen- sation for the loss of the difference between the freight under the cancelled charter-party (after deducting for the difference between the voyage to be per- formed under the cancelled charter-party (316) In the assessment of damages by col- lision the expenses and delay of taking the injured vessel from the place of collision to her port of destination, and thence to the most suitable place for repair, are amongst other things to be allowed. Holderman v. Beckwith, 4 M'Lean, 286 ; Barrett v. William- son, ibid. 589. [American.] (317) Towage expenses for bringing the disabled vessel into port will be allowed. Minor v. Steamer Picayune, 13 La. An. 564. [American.] . (318) The expense of towing the vessel to her place of repair, and wharfage while re- pairing, are items of damage. Fitch v. Living- and the shorter voyage actually made for the saving of wear and tear to the vessel, and for the uncertainties and perils inci- dent to all sea voyages, &c.) and the freight which was actually earned. The Star of India, 1 P. D. 466 ; 45 L. J. P. D. 102; 3 Asp. N.S. 261. 370a. The vessel C, which was proceed- ing in ballast to Montreal to load a cargo of grain for the United Kingdom pur- suant to charter-party, was injured by collision with another vessel, and com- pelled to put into port to repair. The repairs necessarily occupied so long a time that it was not reasonably possible for the C. to have arrived at Montreal in time to fulfil her charter before the navi- gation of the St. Lawrence was stopped by ice for the winter. In these circum- stances the owners of the C. abandoned the charter, and it was found that they acted prudently in so doing. Held, that the loss arising from the abandonment of the charter was a loss caused by the col- lision. The Consett, 5 P. D. 229. 371. A charter-party stipulated for certain payments to the owners of cargo as commission and penalties in case of non-fulfilment of charter-party. These payments became due in a cause of damage. Held, that they were, together with the costs of paying the freight into court, proper deductions from the gross freight due to the owners of the damaging vessel. The Leo, 1 Asp. 200. 37lo. A charter-party provided that a ship should proceed to a port and load cargo from the charterers, unless the char- terers by their agent there gave notice that they abandoned the adventure, in which case the charterers were to pay the shipowners £500. The ship proceeded to the port and found no cargo and no charterers' agent, and got no notice, and then made another voyage which turned out more profitable than the chartered ston, 4 Sandf. Sup. Ct. 492. [American.] (319) The master of a barque which had been damaged by a steamer engaged a tug to tow his vessel to port. He agreed to pay £80 if his vessel were found to blame, but £200 in the event of the steamer being held in fault. At the reference (the steamer being in fault) the larger amount was claimed, but £120 disallowed. The Alfgar, March, 1882. E. & M. (319a) See also notes 162a— 163a, p. 1747. * (320) See notes 5, 6, 7, p. 1717; notes 224, 225, p. 1754 ; and notes 252—255, 257, 258—260, p. 1761. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1771 voyage. Held, that the shipowner could not recover the penalty in addition to the profit on the voyage, hut only nominal damages. Stantforth v. Lyall, 7 Bing. 169. 372. The measure of damages payable by a charterer to a shipowner for non- performance of the contract to load is the amount of freight which would have be- come payable under the charter-party less the cost of earning it, and less any freight earned during the period the ship would have been employed under the charter-party. Smith v. M'Guire, 3 H. & N. 554 ; 27 L. J. Ex. 465 ; Puller v. Staniforth, 2 Taunt. 285 ; Wil- son v. Hicks, 26 L. J. Ex. 242. 373. Where by charter-party it is agreed that the shipowner shall have a ship ready at a certain time to receive a cargo for a foreign port, and the ship- owner fails in the performance of his contract, and in consequence thereof the charterer is obliged to charter other vessels at a higher rate, and pay a higher price for his cargo, the price having risen during the delay occasioned by the shipowner's default, the charterer is entitled to recover as damages against the shipowner the loss sustained by the chartering of the other vessels and the difference in the price of the cargo, pro- vided the shipowner does not show that the cargo has by reason of the rise in price become of greater value in the foreign port. Feather stone v. Wilkinson, L. E. 8 Ex. 122 ; 42 L. J. Ex. 78 ; 28 L. J. N.S. 448; 2 Asp. N.S. 31. 374. In an action by a shipowner against a charterer for breach of con- tract in not naming a safe port to unload according to charter-party, the master's extra costs of successfully defending an action brought against ham by the con- signee for not unloading at the port named are not (the taxed costs having been re- covered from the consignees) recoverable against the charterer unless he has ex- pressly authorized the shipowner to incu* the costs on his behalf. Evans v. Bullock, 3 Asp. N.S. 552; 38 L. T. N.S. 34. 375. But in such case the shipowner is entitled to recover as damages the differ- ence between the port dues at the port named and the port dues he actually paid at the port where he discharged the cargo (if they are in excess of the former). Ibid. 375a. "Where the shipowner has in such a case recovered for demurrage in respect of the delay so occasioned he cannot re- oover for the cost of insurance from the port named to the port of actual discharge (even if he could in any event), as such insurance, being an ordinary expense of the shipowner, must be taken to be included in the demurrage recovered. Ibid. 376. A charter-party provided that a certain freight should be payable for an outward and homeward voyage, and that in the event of non-performance by the charterer through political circumstances there should be a liquidated sum payable to the shipowner. The charterer was pre- vented from discharging outward cargo or loading homeward cargo by such cir- cumstances, and the shipowner obtained other employment. Held, that the ship- owner was entitled to the liquidated sum provided by the charter-party in addition to the freight named on such other em- ployment. Bell v. Puller, 2 Taunt. 285 ; 12 East, 496, n. 376a. As to the amount of damages re- coverable against the freighter for not duly loading a cargo, where the parties have stipulated for a full and complete cargo of particular kinds of goods, to be carried respectively at specified rates of freight, see Gether v. Capper, 24 L. J. C. P. 69 ; Cockburn v. Alexander, 6 0. B. 791. 377. A vessel was chartered to P. 0. and home from M. at a fixed freight, the charterer having the option of sending a part of the outward cargo on to M., but every expense the vessel might incur in consequence was to be borne by the charterer. The charterer loaded a cargo, part for P. C. and part for M., and made out two manifests. On arriving at P. C. the custom-house authorities prohibited the discharge of any part of the cargo there, and the cargo was confiscated, and the master fined ; but eventually the government agreed to pay the master, but did not pay, a compensation for the de- tention of the ship, and she proceeded to M. Held, that the owner was not en- titled to recover from the charterer the expenses in repairing damage to the ves- sel occasioned by the delay, or the costs of proceedings against the government, such, damages not being contemplated by the charter. Sully v. Duranty, 33 L. J. Exch. 319. 378. The defendant chartered the plain- tiff's ship upon the terms that she should go to a foreign port for a cargo, and " there, in the usual and accustomed manner, load in her regular turn." The 5x2 1772 REGISTRAR AND MERCHANTS. Pt. II. Damages. ship went to the port, but owing to the defendant's default was not ready when her turn came, and was consequently detained eleven days. When her turn came round again she was ready, but the •wind coming on to blow, and the harbour being crowded, the harbour-master re- fused to allow the ship to go up to load, and she was consequently detained three days. The plaintiff having sued on the charter-party claiming damages for the detention, held, that the detention for the three days was the legal and natural con- sequence of the defendant's default in not having the ship ready for the first turn, and that the plaintiff was entitled to -damages in respect of the three days as -well as the eleven days. Jones v. Adam- son, 1 Ex. D. 60. 5. For Loss of Life from Collision.* 379. As -to the statutory limitation of •liability in respect of loss of life or per- sonal injury from collision, see tit. Owners, Pt. VI. p. 1177. 380. As to the jurisdiction of the Ad- miralty Division in personam and the limi- tation of its jurisdiction in rem in refer- ence thereto and its procedure therein, see tit. Practice, p. 1681. 380s. When damage is done by a ship both to persons and goods, the liability of the ship is to be estimated at not less than £15 per ton for the purpose of ad- justing the compensation to be paid to claimants in respect of loss of life or personal injury. Nixon v. Roberts, 1 Johns. & H. 739 ; 7 Jur. N.S. 820 ; 30 L. J. Oh. 844 ; 9 W. E. 890 ; 4 L. T. N.S. 679. 381. The liability of a shipowner in respect of loss of life to the seamen of a vessel run down by his ship is not limited to £30 for damages, payable in each case of death. Glaholm v. Barker, L. E. 2 Eq. 598; 12 Jur. N.S. 764; 35 L. J. Ch. 657 ; 14 W. E. 1006 ; 14 L. T. N.S. 880. 381a. This rule applies whether the Board of Trade does or does not institute * (321) The master of a trig was drowned by the collision. He was 44 years of age and "left a widow and five children, viz., four sons, aged respectively 17, 15, 13, and 3, and a daughter aged 5. £500 allowed. The Shep- perton, No. 5725, Aug. 1871. E. & M. (322) The master, age 49, of a schooner of .51 tons, was drowned by the collision. He •left a widow, a consumptive daughter age 22, and a son age 11. The registrar allowed to the widow £250, to the daughter £125, and to the son £75, in all £450. The Solent, 1881, E. No. 1005, Fo. 204, Nov. 1881. E. & M. (323) The second officer of an iron ship of 1 , 500 tons was drowned by the collision. He had held a second mate's certificate, was 51 years of age, his wages were £6 per month, and he left a widow and five children. £400 allowed. The Candahar, No. 7034, June, 1875. E. & M. ' (324) The master of a schooner was drowned by the collision. He was 50 years of age, and left a widow in poor health, three daughters aged 16 and 10 years and 16 months respectively, and a son aged 15. £430 aUowed. The J. E. McDonnell, No. 5886, June, 1872. E. & M. (325) The steward of an American barque of 730 tons register was drowned by the collision. He left a widow and four children aged respectively 13, 12, 11, and 8 years. £300 was awarded. H. M. S. Croco- dile, No. 4876, Nov. 1869. E. & M. (326) A ship's carpenter, aged 42, was drowned by the collision. His wages were £5 : 1 0s. per month, and he left a widow and a posthumous child. £300 allowed. The George & Richard, No. 5638, Jan. 1872. E. & M. (327) Three North Sea fishermen, earning from sixty to eighty pounds per annum, were drowned by the collision. Each left a wife and children. £300 allowed in each case. The Osborne, No. 6753, April, 1874. E. & M. (328) A North Sea fisherman, age 20, earning £80, -and another, age 17, earning £40 per annum, were drowned by the col- lision. Both were unmarried, but had con- tributed materially to the support of their parents and families. In the former case £100 was allowed, and in the latter case £75. Ibid. (329) Two ordinary seamen aged respec- tively 18 and 20, and earning respectively thirty-five and thirty shillings per month were drowned in the collision. £50 allowed to the mother of each. The George & Bichard, No. 5638, Jan. 1871. E. & M. (330) An able seaman, aged 22, was drowned by the collision. He left a widow and posthumous child, a daughter. £225 allowed. The J. E. McDonnell, No. 5926, June, 1872. E. & M. (331) Three North Sea fishermen, each upwards of 21 and likely to marry and be less able to assist their parents, were drowned by the collision. £50 allowed in each case. Ibid. (332) A young lad on his first voyage was drowned in the collision. His parents were of humble condition, and there was no proba- bility of his being able to assist them for some years. £50 allowed. The Thetford, 1880, F. No. 2044, Fo. 430, March, 1881. E. & M. (333) See also note 335, infra. REGISTRAR AND MERCHANTS. Pt. II. Damages. 1773 proceedings in respect of such loss of life. Ibid. 382. The owner's statutory liability extends to the crew of the other ship and to other persons carried by her. Ibid. 383. The E. and the G. B. came into collision. The E., which was held blame- less, was rendered helpless by the colli- sion and driven ashore by a gale of wind, and three of her crew were hilled and others injured. Held, that the G. E. was liable for the loss of life and injuries as the natural consequences of the collision. The George and Richard, 1 Asp. N.8. 50. See also Smith v. The London §• South Western Hail. Co., L. E. 6 0. P. Ex. Ch. 14. 384. The crew might have gone on board other vessels before the vessel was wrecked, but the doing so would have been attended with great risk. Held, that they were not bound to run such risk, and did not therefore contribute to their own loss or injuries. 385. The defendants were the owners of a ship which came into collision with and sunk a China clipper called the 0., of which Captain M. the master, and his wife, the father and mother of the plaintiff, a boy three years of age, suing by his guardian, lost their lives at Shanghai, through col- lision caused by negligence of the defen- dants' servants. At the time of his death Captain M. was receiving a salary of £310 a year, and being allowed to trade on his own account made about £250 per annum in addition, out of which he had saved £250 a year. He, at the time of the acci- dent, was thirty-nine, and in good health. It was proved he was a first-class seaman, and that the boy had no means except what came from his father, who had left behind him £2,903, made while captain of the ship. The jury assessed the da- mages at £1,500. Mackenzie v. Hardy and others, Secondary's Court, London, 12th May, 1882. 385a. The plaintiff was the widow of the master of a ship which came into collision with another ship, and the master, forty- five years of age, was killed in the collision. He left four children besides his widow. The jury awarded £1,000, dividing £400 thereof among the four children. Bailie v. Bucknall and Others, Liverpool Assizes, August 7, 1881. 386. The plaintiffs were the widow and six children of a navigating lieutenant in the royal navy, who had lost his life in a collision between his vessel and the de- fendants' steamer. He was forty-seven years of age, and had been thirty-three years in the service, having entered as se- cond class boy. His pay was £24 1 : 1 6*. 8d. per annum ; and there were six children, aged respectively six, seven, ten, twelve, fifteen, and eighteen. The Admiralty allowed the widow a pension of £36 during widowhood, and £5 each a year for the four younger children until they attained fifteen. The widow also had an allowance from the compassionate fund, which would now cease. Evidence having been given of the high character of the deceased, and his probable rise in his profession, the jury awarded £1,500, i. e. £600 to the widow, and £150 to each of the children. Greet v. The National Steamship Co., April 8, 1880. 387. The plaintiffs were the widow and three children of a second mate in the royal navy. The widow had a pension of £25. The jury awarded £750, i. e. £300 to the widow and £125 to each child. Montgomery v. The National Steamship Co., Ibid. 388. The plaintiffs were the widow and four children of a quartermaster in the royal navy. The jury awarded £675, i. e. £300 to the widow and the remainder to the children. Kitchen v. The National Steamship Co., Ibid. 389. The plaintiffs were the widow and child of an able seaman in the royal navy. The widow had no pension. The jury awarded £300 to the widow and £50 to the child. Howe v. The National Steam- ship Co., Jenkins v. The same, April 8, 1880. 390. The plaintiffs were the widow and child of a shipwright in the royal navy. The widow had no pension. The jury awarded £300 to the widow and £50 to the child. Fowell v. The National Steam- ship Co., April 8, 1880. 390a. The plaintiff was the widow of a man employed in loading coals on board the defendants' ship, and met his death while so employed. His earnings averaged not less than £3 per week. Besides his widow, he left seven children. The jury awarded £350, and apportioned £125 to the plaintiff and £225 among the children. Phillips v. Phillips #• Co., March 6, 1884. 391. The plaintiff was the widow of a sail maker killed in a collision. He was fifty-two years of age, and was receiving £4 : 10s. per month, and in the habit of allotting half this monthly to his wife. The jury awarded £125. Nichollv. Buck- nall and Others, Liverpool Assizes, Aug. 7, 1881. 1774 REGISTRAR AND MERCHANTS. Pi II. Damages. 6. For Personal Injuries from Collision.* 392. The Court of Admiralty has juris- diction to entertain an action, and to assess the damages in respect of personal injuries done by a ship. The Sylph, L. E. 2 A. & E. 24 ; 37 L. J. Adm. 14 ; The Guldfaxe, L. E. 2 Adm. 325; 38 L. J. Adm. 12; 19 L. T. 748 ; The Ber- nina, March 2, 1886. 393. A clause in a policy of insurance, that in case the ship shall by accident or negligence of the master and crew run down or damage any other ship, and the assured shall thereby become liable to damages by judgment of any court, the assurers shall pay a proportion thereof, does not extend to damages recovered against the shipowners for personal in- jury caused to persons on board the ship by collision. Taylor v. Dewar, 5 B. & S. 68 ; 33 L. J. Q. B. 141 ; 10 Jur. N.S. 361 ; 1.0 L. T. 267; 12 W. E. 579. 394. In an action for damages for personal injury a sum received by the plaintiff from an accidental insurance com- pany cannot be taken into account on the question of damages. Bradburne v. The Great Western Railway Co., L. E. 10 Exch. 1. 395. He does not receive that sum be- cause of the accident, but because he made a contract providing for the contin- gency of that accident ; the accident must occur to entitle him to it, but it is not the accident but the contract which is the cause of his receiving it. Ibid. 396. The plaintiff, a civil service writer for some two years, was apassenger, in Aug. 1878, on board the M., a steamer belong- ing to the defendant company, from Lon- don to Boulogne. The weather was very rough, and in one of the lurches of the vessel the plaintiff was thrown down. A number of planks, on which he had been sitting, subsequently fell upon his leg and broke it, and he was laid up for four months ; he claimed' damages in respect of the injuries he had suffered, also £20 for medical attendance , &c, and £30 for loss of salary. £ 1 50 awarded as damages. Browett (by next Friend) v. General Steam Navigation Co. Q. B. D. July 2, 1880. 397. The plaintiff was a passenger on board the steamer H. In entering the harbour of St. Heliers, Jersey, the vessel, by the negligence of the defendant's ser- vants, struck one of the pier-heads, and the plaintiff by the shock was thrown down. He alleged that the injuries then received were very serious, preventing him for months from attending to his business as a brewer. The defendants alleged the injuries were exaggerated, and the evidence showed he would Joe quite restored to health in eight or nine months. Damages, £750. Seymour v. London and South, Western Rail. Co. Q. B. D. August 6, 1880. 398. The plaintiff, who was a master lighterman and barge owner, was walk- , * (334) The mate of a French brig was in- i'ured in both legs in the collision. The right eg was amputated, and the knee joint of the left leg became rigid, and the limb was wasted, and there was a sloughing sore. £750 was awarded. The Beta, No. 4495, 11 Nov. 1'869. E. & M. ' (335) The master of a steamer of 626 tons and his wife claimed in respect of personal injury sustained by the latter through pro- longed immersion after the collision, and for the deaths of their three children, aged re- spectively 15, 13, and 10 years. £500 allowed. H. M. 8. Amazon, No. 3424, Jan. 1868. E. & M. (336) Quwre, whether any portion of this sum was allowed in respect of the loss of life. Ibid. (337) A fireman, aged nineteen, was in- jured by the collision, his life being for some time in danger, although he ultimately re- covered and enjoyed fairly good health. He was, however, permanently disabled, and had suffered great pain. £450 allowed. Haw- kins v. Morgan, 1880, H. No. 137, fo. 186; July, 1881. E. & M (338) The master of a ketch of 52 tons register was injured by the collision. He had at the time of the reference been unable to follow his employment for twelve months, and would probably be unable to resume it for another twelve months. £400 allowed. The Forest Fairy, No. 195, Oct. 1878. E. &M. (339) The master of a brigantine was in- jured by long immersion in the water in consequence of the collision. His nervous system also sustained a considerable shock. At the time of the reference, six months later, he was still ill, and would probably be unable to resume his profession for some time. £200 awarded. The Earl of Erne, No. 4950, Nov. 1869. E. & M. (339a) Two youths, sons of the master of a schooner, were injured by the collision. To the one, whose injuries had. kept him out of employ for two 1 months, by which time he had apparently quite recovered, £30 was awarded; to the other, whose injuries were more severe, his right hand being still use- less at the time of the reference, £70 was awarded. The Beverley, No. 4838, April, 1869. E. & M. REGISTRAR AND MERCHANTS. Ft. II. Damages. 1775 ing along; the edge of the quay of the tidal basin of the Victoria Docks, when the steamship S. was being hauled, stern first, out of the tidal basin. When the plaintiff was about to step over a seven- inch Manilla rope, one end of which was made fast to a mooring-post, and the other end to the S., the rope was, owing to the negligence of the defendant's servants, suddenly j erked up. It struck the plaintiff and knocked him down, so severely injur- ing his elbow that he was unable to use his arm for five months, and had not recovered the perfect use of it. The jury awarded as damages £254. Arnold v. Black, February 17, 1885. 7. For Injuries to salving Pro- perty in rendering Salvage Assistance. See Pt. I. c. 14, p. 1732. 8. Costs and Damages. 1. Generally.* 399. On a decree of restitution with costs and damages, the rule is that the party unjustly deprived of his property ought to be put as nearly as possible in the same state as before the deprivation took place. The Acteon, 2 Dodson, 51. 400. A party having a decree for costs and damages is to be protected against the expense of poundage. An express decree of costs and damages must go to everything in the way of compensa- tion. The Driver, 5 C. Eob. 146, n. 401. A vessel unjustifiably seized was ordered to be restored with costs and damages from the date of the seizure to the date of the offer of restitution ; no claim was made for the cargo till some time after the seizure, the claimant thereto having mistaken his course of proceeding. Held, that the owners of the cargo being British merchants, and therefore presumed to know the proper course, were only entitled to costs and damages from the date of their claim to the date of the offer of restitution. The Elite, 2 Spinks' Eccl. & Adm. Eep. 41. 402. On a decree of costs and damages for wrongful seizure and destruction of a vessel as engaged in the slave trade, the only losses which will be allowed are those necessarily incident to the destruc- tion of the ship, viz., the value of the ship and nett freight. Damages in con- sequence of any estimated profit which might or might not have been made had the voyage been completed cannot be allowed. The Levin Lank, 10 Moore, P. 0. 0. 224 ; Swabey, 45. 403. The owners' claim for damages, amounting to £20,000, was in great part made up of probable or possible pro- fits, which it was asserted they might have made had it not been for the deten- tion of the vessel. Held (confirming the report of the registrar and merchants), that the owners could not claim profits which, though possible, might never have been realized. Ibid. 404. As to the measure of damages in prize cases, see 3 Phill. International Law, 571, 577. 405. As to the cases in which the court will decree costs and damages, see tit. Costs, p. 369. 2. Value of Ship.\ 406. See No. 402, supra. 406a. See, as to value of ship in causes of * (340) Under a decree of restitution with costs and damages of a chartered vessel, seized, condemned, and sold as engaged in the slave trade, the shipowner is not entitled to recover for estimated profits from the em- ployment of the ship, subsequently to the chartered voyage. The Newport, Swabey, 336. E. &M. (341) See, as to the measure of damages in prize causes, the subject fully discussed by Mr. Justice Story in The Lively, 1 Qallison, 315. [American,] t (342) Under a decree of restitution with costs and damages of a vessel seized, con- demned, and sold, as engaged in the slave trade, the shipowner is entitled to recover inter alia the value of the vessel at the period of capture. Her value estimated at £7 a ton, viz. £882. The Newport, Swabey, 337. E. &M. (343) In the estimated value of a chartered vessel estimated surplus stores after the com- pletion of her charter are included. Ibid. (344) The value of a vessel engaged in the palm oil trade, on the coast of Africa, is to be taken, not at the price at which a similar vessel might have been purchased in Eng- land, but at her value on the coast of Africa. The Levin Lank, 10 Moore, P. C. C. 217 ; Swabey, 52. E. & M. (345) If the vessel and cargo are lost the true measure is their actual value with interest from the time of the trespass. If they have been restored after detention 1776 REGISTRAR AND MERCHANTS. Pt. II. Damages. damage "by collision, c. 3, p. 1744 ; and in causes of possession, Pt. I. c. 13, p. 1731. 3. Cargo* 407. See No. 403, supra. 407 a. See as to loss of market of cargo in causes of damage to cargo, c. 2, p. 1740. 408. See as to compensation for lost or damaged cargo in causes of damage by collision, c. 3, pp. 1750 — 1752, and as to consequential loss of market, &c, p. 1767. 4. Freight.] 409. See No. 402, supra. 409a. As to freight in causes of damage by collision, see c. 3, p. 1761. 5. Interest.% 410. A delay took place of between two and three years from the date of decree for costs and damages, and the bringing in of the claim. Two years' interest disallowed on the claim. The Levin Lank, 10 Moore, P. 0. 0.219; Swabey, 54. 411. Interest allowed for a ship and cargo wrongfully taken by the defendant, and this being done in the Indies, Indian interest allowed, deducting the charge of the return. Elans v. E. I. Co., 1 P. W. 395. 412. As to interest in actions of bot- tomry and other actions, see the different chapters, supra. 6. Demurrage. 413. Demurrage against captors allowed on a vessel of 180 tons, for three months and twenty days, at £330. The Corier Maritimo, 1 0. Eob. 287. 414. See as to demurrage in actions of collision, c. 3, p. 1763. 9. French. Law.§ demurrage has generally been allowed for the vessel, and interest on the value of the cargo. If they have been sold, then the gross amount of the sales with interest and, if the sale was under disadvantageous cir- cumstances or not at the place of the destina- tion of the property, sometimes an addition of ten per cent. The Appollon, 9 Wheat. 362. [American.] * (346) In trover for the capture and de- tention on the high seas of a cargo bound to A., it was held that the proper rule of da- mages was the value of the cargo at the- time and place of capture, allowing for the same the prices at A. with such additional damages as would he equal to the interest thereon, deducting a reasonable premium of insur- ance from the plase of oapture to A., such part of the cargo or of the avails thereof as had been restored going in mitigation of damages. Hallet v. Novion, The Apollon, 14 Johns. 273. [Amebic an.] (347) See also note 345, supra. t (348) Under a decree of restitution with costs and damages of a chartered vessel seized, condemned, and sold, as engaged in the slave trade, the shipowner is entitled to recover inter alia the amount of the char- tered freight less the charges which would have been incurred in earning it, and the amount of the liabilities incurred by non- performance of the charter, or the additional expenses incurred in the final performance thereof. The Newport, Swabey, 335. E. & M. (349) The contract of charter having been dissolved by agreement between the owner and charterer on the terms of repayment of the prepaid freight, and this agreement being equitable as regards all parties, held, that the freight so repaid was recoverable as part of the damages. Ibid. 343. E. & M. (350) See also notes 245—260, p. 1761. | (351) Interest on the value of the vessel at the rate of four per cent, per annum is usually allowed. The Levin Lank, 10 Moore, P. O. 0. 219 ; Swabey, 54. E. & M. (352) Under a decree of restitution with costs and damages of a chartered vessel seized, condemned, and sold, as engaged in the slave trade, interest at four„per cent, allowed upon the amount recovered from the probable date of the termination of the chartered voyage, supposing there had been no seizure, until payment. The Newport, Swabey, 344. E. & M. (353) In cases of marine tort interest is uniformly allowed upon the value of property lost. The Anna Maria, 2 Wheaton, 327; 4 Curtis, D. S. S. 122 ; The Amiable Nancy, 3 Wheaton, 546. [American.] (354) And on the diminution in value of property injured. Ibid. (355) If property ordered by the decree to be restored has been sold, and the money remains in the possession of the court, it does not carry interest, but if it is in the posses- sion of individuals it may bear interest or not as the court shall order. Himely v. Base, 5 Cranch, 313; Ballet v. Novion, TheAppoUon, 9 Wheat. 362 ; Hallet v. Novion, 14 Johns. 273 ; see also notes 345, 346, supra. [American.] (356) Unless the court decrees interest none is payable. Ibid. § (357) Under French law the damages include all loss the direct and necessary con- sequence of the collision, but not its indireot consequences. D. P. 1876—1. 477. (358) Held, that the responsibility for a collision includes not only the damages suf- fered immediately from its effect but its con- REGISTRAR AND MERCHANTS. Pt. II. Damages. 1777 sequences ; such, as damage to the vessel from voluntary stranding to save it from sinking after the collision. Aix, February 18, 1859; J. H. 1859 : 2 : 203. (359) Held, that the damages should in- clude not only the value of the vessel lost therefrom, but the cost of the attempt to salve it, if properly made, though fruitlessly, and an indemnity for the loss of the freight, and of the profit resulting from the service in ■which the vessel was employed. Aix, No- vember 22, 1860 ; J. H. 1861 : 2 : 142. See also Havre, April 7, 1869 ; J. H. 1861 : 1 : 94 ; Marseilles, June 1, 1859 ; J. H. 1860 : 2 : 96. (360) Held, that where it is uncertain on which pf two colliding vessels the fault should be laid, the damages and expenditure of both should be supported in common by both, and that there should be comprehended therein the cost of the repairs, and all the losses which have been the direct and imme- diate consequence of the collision, such as the necessary interruptions of the voyage, and the delay caused by the repairs, the costs of entering the port and of remaining there for the repairs, of discharging, warehousing and relading the cargo, and of the wages of the crew during the repairs, also the costs of a bottomry loan raised by the master for the purposes of the repairs and the continuation of the voyage if it can be accomplished with- out difficulty. Caumont, vo. Abordage, Nos. 11, 146, 151, 153. Havre, August 1, 1860 ; J. H. 1860 : 1 : 180. (361) But held, that in a case where it was not possible to determine which of the two vessels was to blame for the collision, the price of the goods lost by the sinking of one of them was not to be included in the damages. Havre, April 18, 1859; J. H. 1859 : 1 : 93. (362) Held, that a vessel delayed by a col- lision on a voyage is not entitled to claim damages, because had such collision not taken place it might have been freighted for a return voyage. Havre, April 1, 1865 ; J. H. 1865: i: 111. (363) The owners of a ship which has run down another are bound to make good not only the damages originally spoken to in the report of survey, but also any further damages subsequently discovered, especially when the report of survey has made a reservation con- cerning them. D. P. 1876—11. 24. (364) Damages include demurrage during repairs. Ibid. (365) Even if the time occupied was pro- longed by force majeure (such as war), if the war was going on at the time of the collision. Ibid. (366) Held, that the demurrage due to a vessel damaged by a collision is to be 50 centimes per day and per ton of her official tonnage. Havre, 28 June, 1866 ; J. H. 1866:1:159. But this does not apply to lighters or barges. Havre, May 16, 1865 ; J. H. 1865:131. (367) Held, that in estimating damages, the wear and tear of old materials, replaced by new, should be taken into account and allowed for accordingly. Havre, Jan. 17, and June 26, 1872; J. H. 1872 : 1 ; 94 and 206. Caumont, Ibid. No. 147. (368) But held, that the damaged party may be charged with the difference in value between old and new materials, only where his vessel has increased in value by the exchange. Eouen, July 30, 1872; J. H. 1872 : 2 : 196. (369) Held, that the party or parties re- sponsible for the collision are chargeable not only with the damage, but also with all ex- penses whatsoever which are the consequence thereof: for example, all average, salvage, demurrage, port of refuge, expenses, &c. Eouen, May 3, 1864; J. H. 1864:2:131; Nantes, Jan. 9, 1864; J. H. 1864 : 2 : 114. T[370) The damage to be made good by the party responsible is not only the material injury to the vessel run into, but also the loss of expected profit immediately resulting to the owner from that injury, such as freight or the results of fishing. The rule is, that every loss and expenditure whatever, of which the collision has been the cause, should be made good by the party to blame for the col- lision. See D. A. No. 1140 et seq.; 1829 et seq. ; Caumont, vo. Abordage Maritime, Nos. 11, 14, 16, 146, 147, 150, 153 et seq. (371) Eor the special rules concerning the distinction to be made as to cargo damaged by collision, see D. A. No. 1 141 ; Caumont, Ibid. Nos. 11, 91 et seq., 104, 105, 152—154, 157—160. (372) Held, in this case, that the profit made during the previous month might be taken as the measure of damages. Ibid. (373) Held, in, the case of a barge, that the measure of damages was the interest on the capital represented by the barge. Judgment of Tribunal of Havre of 16 May, 1865 ; J. H. 1865:1:131. (374) Held, that the party responsible for the collision is not liable for expenses not caused by the collision such as wear and tear. Eennes, May 19, 1871 ; J. H. 1873 : 2 : 82. (375) There is no privilege or preference against a vessel for damages awarded in con- sequence of a collision. Eouen, May 3, 1864; J. H. 1864:2:131. 1778 SALVAGE. SALVAGE. Pabt I. — In English Couets. II. — In Beitish Colonial Couets. III.— In Beitish Couets in Foeeign COUN- TRIES. PaetIV. — In Foeeign Couets. V. — Undeb Teeaties, &c. with Foreign PffWEBS. Part I -IN ENGLISH COURTS. 1. Generally p. 1781 2. Jurisdiction. 1 . The Admiralty Branch of the Probate, Divorce and Admiralty Division of the Sigh Court of Justice. (a) Generally. See tit. " Jurisdic- tion," Pt. 1. o. 5, p. 638. (b) Where the Salvage awarded does not exceed £200 1786 (o) Where the salved Property does not exceed £1,000 1786 (d) Within the Cinque Ports 1786 (e) Leave to proceed in the Superior Court and revocation thereof. See tit. "Peactioe," Pt. II. pp. 1541—1543. (f) Transfer of Action. Ibid. pp. 1540, 1541. (g) In cases of Salvage by Officers and Men ofS.M. Ships abroad. See p. 1809. 2.- The Sigh Court of Admiralty. (a) Generally 1787 (b) Where the Salvage awarded does not exceed £200 1788 (o) Where the salved Property does not exceed £1,000. (aa) Before the Judicature Acts and Rules 1789 (bb) Since the Judicature Acts and Pules 1789 (d) Within the Cinque Ports 1789 (e) Towage 1789 (f) To British Government Ships . . 1790 (g) To Foreign Government Ships. . 1790 (h) Foreigners and Foreign Ships . . 1790 (i) On Sea and Land 1790 (j) Life. (aa) British Ships 1791 (bb) Foreign Ships 1792 3. Courts of Common Law 1792 4. Admiralty Court of the Cinque Ports. 1793 5. Admiralty County Courts 1794 6. Commissioners of Cinque Ports. (a) Generally. See tit. "Peac- tioe," p. 1703. (b) Appeals from their Awards. See tit. Appeals, pp. 15, 57. 7. Magistrates. (a) Generally. See tit. "Peao- tice," p. 1709. (b) Appeals from their Awards, See tit. " Appeals," p. 58. 8. Vice- Admiralty Courts. (a) Generally. See tit. "Peac- tioe," p. 1713. (b) Appeals from their Awards. See tit. " Appeals," p. 30. 3. Board of Trade. 1. Generally P- 1794 2. Salvage of Life 1794 3. Salvage of Wreck 1794 4. Eamsgate Sarbour Dues 1794 4. Receivers of Wreck. 1. Generally , 1794 2. Apportionment 1797 3. Fishing Boats and Fishing Gear .... 1797 4. Property of Foreigners 1797 5. Valuations by — 1798 6. Sale of Property by— 1798 7. Fees and Books 1798 8. Serjeants of the Admiralty of the Cinque Ports 1798 5. Salvors. 1. Generally 1799 2. After Collision 1799 3. Owners of salving Vessels. (a) Generally 1801 (b) Steamers 1801 (o) Sailing Vessels 1802 4. Owners and Charterers 1802 5. Associated Vessels 1803 6. Seaworthiness 1804 7. Crew not actually engaged 1804 8. Passengers in salving Vessels 1805 9. Owners of Vessels salved 1806 10. Crew of Vessels salved 1806 11. Passengers m Vessels salved 1808 12. Officers and Crews of S.M.'s Ships. (a) Generally 1809 (b) No claim in respect of Ship's Stores, §c 1811 (o) Consent of Lords of Admiralty to Proceedings 1811 (d) Abroad 1812 13. Officers and Men of the Coastguard . . 1813 14. Officers and Men of Foreign Govern- ment Ships 181* 15. Agents 181* 16. Pilots. l&) Generally 1815 (b) Ambiguous Signal 1819 17. First and Second Salvors. (a) Generally lsi0 (b) After incomplete Assistance of firstSalvors 1824 18. Underwriters 1825 19. Women 1826 SALVAGE. 1779 6. The Services. 1. Generally p. 1825 2. Acceptance 1827 3. Success 1828 4. Bisk of Life. (a) Generally 1830 (b) From Infectious Disease 1830 5. Risk of Property 1830 6. Deviation. See c. 14, p. 1887. 7. Incomplete Assistance. See c. 6, p. 1824. 8. Information or Advice 1831 9. Sending actual Salvors 1833 10. Supplying Master or Men. (a) Generally 1834 (b) To Ships infected with Disease . . 1834 11. Losses or Damages in rendering Sal- vage Assistance. See c. 14, p. 1885. 12. After Collision. See o. 5, p. 1799. 13. Fire 1834 14. Transhipment 1835 15. Towage. (a.) Generally , 1835 (b) Subsequent Salvage ... 1838 (o) Misconduct 1842 16. Pilotage by others than Pilots 1844 17. Mutual Benefit 1844 18. Mixed {Military and Civil) 1844 19. Other Cases 1845 7. Life. 1. By British Ships 1847 2. By Foreign Ships 1849 3. Payment by Board of Trade. (a) Generally 1849 (b) Socket Apparatus, Life Boats, §c 1849 4. Awards. See o. 15, p. 1889. 5. Priority of Lien. Seeo. 11, p. 1879. 8. The Property saved. 1. Generally 1849 2. Steam Vessels with Passengers 1849 3. Fishing Boats' Gear, §c 1850 4. Personal Baggage 1850 5. Bullion 1850 6. Timber ; 1851 7. Papers 1851 8. Derelict Property 1851 9. Values. (a' Generally 1851 (b) Deductions 1852 (o) Tmnination of Services 1854 10. Sate of Contribution 1854 11. To what Port to be brought 1856 12. Right of Possession 1856 13. Appraisement ... 1856 14. Sale 1856 9. Diminution or Forfeiture. 1. Generally 1856 2. Wilful Misconduct generally 1859 3. Refusal of further Assistance 1860 0. Diminution or Forfeiture— continued. 4. Obtruding further Assistance p. 1860 6. Non-delivery, $c. of Vessel salved . . 18S1 6. Negligence or want of Skill 1861 7. Agents of Salvors 1864 8. Associated Services 1864 9. Fraud 1864 10. Embezzlement 1865 11. Other Cases 1866 10. Agreements. 1. Generally 1867 2. The Parties 1870 3. Queen 1 s Ships 1871 4. To render mutual Assistance 1871 5. Avoidance. (a) Generally 1872 (b) Fraud 1876 (c) Subsequent Circumstances 1876 6. For Abandonment, Transfer, or Ad- vance of Salvage, see o. 16, pp. 1891, 1892. 11. Lien. 1. Generally 1877 2. Priority. (a) Life 1879 (b) As against subsequent Salvors. See o. 6, p. 1820. (o) As against other Liens. See tit. "Lienb," p. 830. 12. Payment. 1. Generally 1879 2. Before the M. S. Act, 1854 1880 3. Since the M. S. Act, 1854 1880 13. Derelict. 1. Generally 1881 2. Amount awarded , 1883 14. Consequential Loss. 1. Losses or Damages in rendering Sal- vage Assistance 1885 2. Fishing Vessels 1887 3. Deviation 1887 15. Awards. 1. Generally 1888 2. Life 1889 3. Derelict 1889 4. Deviation 1889 16. Apportionment. 1. Generally 1889 2. Agreements. (a) Since the M. S. Act, 1854 .... 1891 (b) Before the M. S. Act, 1854 .... 1892 3. Officers and Crews of S.M.'s Ships.. 1893 4. Officers and Men of the Coastguard .. 1893 5. Owners of salving Vessels. (a) Generally 1894 1780 SALVAGE. 16. Apportionment— continued; 5. Owners of salving Vessels — continued. (b) Steam Vessels. (aa) Generally p. 1895 (bb) Vitiation of Insurance . . 1896 (cc) Consequential Loss .... 1897 (o) Fishing Vessels 1897 6. Owners of Cargo in salving Vessels . . 1897 7. Personal Salvors. (a) Master and Crew 1897 (b) Apprentices ■ .... 1898 (o) Passengers. See o. 5, s. 8, p. 1805. 8. Amounts . ." 1899 17. Evidence. p. 458. 18. Practice. p. 1462. 19. Costs and Damages. "Costs," p. 371. See tit. "Evidence," See tit. "Pbactice," See tit. 20. Costs. Ibid. p. 406. 21. Appeals. See tit. "Appeals," p. 12. 22. Wreck. Seetit.,"WBECK." Part II. — IN BRITISH COLONIAL COURTS. 1. Generally 1899 2. Isle of Man 1899 8. Heligoland 1899 4. Ceylon 1899 5: The Bahama Islands 1899 6. The Bermuda Islands 1900 7. Canada. 1. Generally 1900 2.' Of Life 1900 3. Receivers of Wreclc 1900 8. Jamaica. 1. Generally 1901 2. British Honduras 1901 3. The Turks and Caieas Islands 1901 9. Trinidad 1901 Part III. — IN BRITISH COURTS IN FOREIGN COUNTRIES. Generally 1901 H.M. Supreme Consular Court of Constantinople 1901 8. H.M. Supreme Coutt for China and Japan p. 1901 Part IV -IN FOREIGN COURTS. 1. Generally 1901 2. America (United States) 1901 3. Belgium 1901 4. Denmark 1902 5. France. 1. Generally 1902 2. The Services 1903 3. Derelict 1903 4. Agreements 1904 5. , Maritime Authorities 1904 6.. Tunis 1905 6. Germany. 1.. Generally 1905 2. Salvage or Assistance.. 1905 3. Sahors. (a) Crew of salved Vessel 1905 (b) After Collision 1905 (c) Misconduct 1906 4. lien 1906 5. Agreements 1906 6.' Amotart. ■ •