Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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The Board of Trade is not, nor is any
peraon acting under them, liable, in re-
spect of any act or matter done or
omitted to be done, in the distribution
of such damages.

If the amount paid to the Paymaster-
General is insuflicient to meet the de-
mands upon it, the several claims there-
on must be proportionally abated.

After the completion of the inquiry,
if any person injured estimates the da-
mages payable to him, or if the executor
or administrator of any deceased person
estimates the damages payable in re-
spect of his death, at a greater sum than
the statutory amount, orthan the amount
accepted by the Board in cases of com-
promise, he may, upon repaying or ob-
uining the repayment by the Board of
Trade to the owners of the amount paid
by them in respect of such injury or
death, bring an action for the recovery
of damages, in the same manner as if
DO power of instituting an inquiry had
been given to the Board of Trade. But
the damages recoverable are to be pay-
able only out of the residue, if any,
of the aggregate amount for which the
owners are liable, after deducting all
sums paid to the Paymaster-General in
manner aforesaid; and if the damages
recovered in the action do not exceed
double the statutory amount, all the
costs of the action roust be paid by the
plaintiff, such costs being taxed in Eng-
land and Ireland as betweei: attorney
and client, and in Scotland as between
agent and client.

In cases of loss of life or personal in-
jory of the class mentionea above, no
person is entitled to bring an action or
institute any suit or other legal pro-
ceeding in the United Kingdom, until
the completion of the inquiry instituted
by the Board of Trade, or until the
Board of Trade has refused to institute
tbe same. The Board of Trade is to be

deemed to have refused to institute an
inquiry, if it omit to proceed for a month
after notice has been served on it by
any person of his desire to bring an ac-
tion or institute any legal proceeding.

If the Board of Trade, after having
refused to institute an inquiry, after-
wards determines to institute one, the
damages and costs recovered are to be
paid rateably with and not in priority to
the costs and damages recovered in any
other action or legal proceeding.

In cases wTiere any liability has been
or is alleged to have been incurred by
any owner in respect of loss of life, per-
sonal injury or loss of or damage to
ships, boats or goods, and several claims
are made or apprehended in respect
thereof, the Court of Chancery in Eng-
land, the Court of Session in Scotland
and any competent Court in any British
possession, may (subject to the right of
the Board of Trade to recover damages
in the United Kingdom in respect of
loss of life or personal injury) en-
tertain proceedings at the suit of any
owner for the purpose of determining
the amount of liability (subject as afore-
said), and for the distribution of the
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 such proceed-
ing 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 with-
in a certain time, and as to requiring
security from the owner, and as to pay-
ment of costs, as the Court may think

All sums of money paid for or on ac-
count of any loss or damage in respect
of which the liability of the owners of
any ship is limited by the ninth part of
the statute, and all costs incurred in re-
lation thereto, may be brought into ac-
count among part owners of the ship in
the same manner as money disbursed
for the use of it. See M. S. Act, 1854,

(m) lb, 8. 516.


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The powers given by sect. 514 of the Merchant Shipping
Act, 1854, to the Court of Chancery, enable that Court to
determine the amount of a shipowner's liability, and to dis-
tribute that amount among the several claimants, but do not
authorize it to decide the question of liability or non-liability.
A shipowner, therefore, who seeks the assistance of the Court
will not be relieved if he denies his liability altogether (n).

By sect 516, where a judgment had been obtained in an
action commenced in the Admiralty Court, condemning the
owners of a ship in damages and costs in respect of the loss
of a vessel run down by her, and the ship was arrested by pro-
cess of the Admiralty Court, and liable to be sold, it was held,
upon a bill filed by the owners for the purpose of having their
liability ascertained and of staying the proceedings in the Ad-
miralty Court, that the action was still such a suit pending as
the Court had jurisdiction to stop (o).

Part IX. of the Merchant Shipping Act, 1854, which contains
the provisions as to the liability of shipowners, applies only to
British ships, except when foreign ships are expressly men-
tioned {p).

These limitations of the owner's responsibility rest, in Eng-
land, upon the authority of the statute law onlyCy), for the
common law, like the civil law in this respect, held them to be
responsible in all these cases. By the general law, however, of
the maritime nations of continental Europe, the liability of
owners for the wrongful acts of the master is limited to the
value of the ship and freight, and they may discharge themselves
by abandoning them to the creditor (r).

Constnjction It will be useful to mention here some of the cases decided
o ear ler gta- yp^ji provisions in the earlier statutes, which are analogous to
those contained in the Merchant Shipping Act, 1854. It was
held that the words of the first section of the 7 Geo. 2, c. 16,
were wide enough to limit the liability of the owners for a rob-

(fi) Hill V. Attdui, 1 K. & J. 263. Laurie, 5 B. & C. 164, per Lord Stowell

(o) LeyeesterY. Logan, 3 K. & J. 446, in The Dundee, 1 Hagg. 121. It is the

the costs of the suit must be borne by tame in America, 3 Kent's Comm. 217.
the plaintiff, so also must the costs of (r) See EmerigonContratsi la grease,

the action stopped, The African Steam c. 4, s. 11, where the early maritime

Ship Company v. Swanzy, 2 K. & J. 660. laws are cited. Boulay Paty, Cours de

(p) Cope T. Doherty, 4 K. & J. 367; Droit Commercial Maritime, volt tit 8,

2 De G. & J. 614. sec. 1, Ed. 1834; Code de Comm. art.

(q) Per Abbott, C. J., in Gale y. 216.


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bery committed by strangers in concert with one of the marmers
who shared in the spoil («), and that the 26 Geo. 3, c. 86, related ^^ Courts of
only to ships usually employed in sea Toyages, and not to small
craft, lighters and boats concerned in inland navigation (t). In
estimating the value of the ship within the meaning of these
acts, fishing stores carried on board, not as merchandize, but for
the accomplishment of the objects of the voyage, were con-
sidered to be included ; indeed, whatever was on board for the
object of the voyage and adventure, belonging to the owners,
was held to constitute a part of the ship and appurtenances
within the meaning of the statutes (u). In calculating the value
of the freight, money actually paid in advance was taken into
account (x) ; and where the completion of the voyage was pre-
vented by the tortious sale of the ship, the extent to which the
owners were held to be liable was the value of the ship at the
time of the sale, and the freight she would have earned had she
completed the voyage, not the amount which was calculated on
at its conmiencement(y). Where one of seveml owners was
also master, and a loss occurred by his misconduct, his innocent
co-owners were held to be protected, but he himself was not{z).
It was also held that the value of the ship was to be calculated
at the time of the loss (a); but that this rule was not to be con-
strued so as to exempt the owners from all liability if their ship
foundered at the time of the accident, but that they were in
such a case liable to the extent of the value immediately before
the collision (6). It may be doubted whether it was not intended
that the value should be taken at the commencement of the

(s) Suttou T. Mitchell, I T. U, IS. not use the word "appurtenances."

(t) Hunter v. McGowan, 1 BHgh, 573. The liability of the owners is limited

(») Per Abbott, C. J., in Gale v. to the value of the ** ship and freight."

Laurie, 5 B. & C. 164. In a case in Chan- (jt) mison v. Dicksoriy 2 B. & Aid. 2.

cfry, a ship** chronometer was consi. {y) Cannon v. Meaburn, 1 Bing. 465.

dered to be included in an assignment in (z) IViison v. Dickson, ubi supra ; The

which'* appendages and appurtenances" Triune, 8 Hagg. 114.

( mentioned. Langton v. Morton, 11 (a) Wilson v. Dickson, ubi supra; Do-

L. J., N. 8., Ch. 299 ; S.C,\ Hare, 549, bree v. Schroeder, 6 Sim. 291. In Dobree

where this point is not noticed. Rich- v. Schroeder^ 2 Myl. & C.489, it was held

ardtcn v. Clarke, 15 Maine (American) that the value of the ship is the price at

Rep. 44, is contra ; see also Langton v. which she can be sold, and that it is to

Horton, 5 Beav. 9, where in a hill of sale be ascertained, not by making deduc-

tlie word " appurtenances " was held tions from the cost price proportioned

not to include a cargo of oil which was to her age, but by a valuation and ap-

•cquired daring the adventure. See praisement.

alsoM/e. p. 81, notc(/). It must be (b) Brown v. Wilkinson, 15 M. & W.

obsenred, that the M. S. Act, 1854, does 891 ; The Mary Caroline, 8 W. Rob. 101.

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The protection afforded by the 26 Geo. 3, c. 86, s. 2, in cases
of fire, was held to be confined to cases in which the fire arose
on hoard the ship, and, consequently, not to extend to a casual
fire occurring on board a lighter employed by the shipowners to
convey the goods from the shore to the ship (c).

Upon the Merchant Shipping Act, 1854, there have, as yet,
been few decisions. It has been held, under sect. 503 of that
statute, which protects shipowners from liability for loss of gold,
silver, &c. by reason of robbery, unless the " true nature and
value" of the article is inserted in the bills of lading, or other-
wise declared in writing by the shipper, that it is not sufficient
to describe a parcel of gold as so much " gold dust," without
stating its value (rf).

In Courts of In the Admiralty Courts, where the proceedings are in rent
Admiralty. ^^ mode of remedy not originally given as a measure of the
damage, but as the best security for indemnity that could be
obtained, as the owner might be beyond the reach of the law),
the liability of the owner is also modified by the operation of
these statutes : but, subject to this modification, the rights of a
person in possession of a decree of those Courts in a cause of
damage, are co-extensive with the rights of the owner himself (e).
They do not, however, override the claim of a stranger who has,
subsequently to the collision, repaired the ship on the security
of a bottomry bond (/).

In these Courts the owners of vessels damaged by colli-
sion may proceed against the owners of the ship in fault, or
against the master personally, or against the ship herself (^);
and it is important to observe that the personal liability of the
owners for the costs of recovering compensation is not removed
by the statutes, and they may become, in this way, answerable
. for more than the value of the ship and freight (A). It was
held, under the 53 Geo. 3, c. 159, that a Court of law ought not,
by reason of the pendency of a suit in equity under that statute,
to stay proceedings in an action at law against the owners to
recover damages for an injury to goods (i). We have seen that,

(c) Morewood v. Pollok, 1 E. & B. 743. (g) The Volant, 1 W. Rob. 387 ; The

{d ) Williams v. The 4frican Steam Ship Mellona, 6 Notes of Cases, 67.

Company, 1 H. & N. 300. {h) Tlie Dundee, 2 Uagg. 137; Ex

(e) rA*^/intf,l W.Rob. Ill, and see parte Rayne, I Q. B. 9^2.

past, Chap. IX., Collision. (t) Thiseldon \. Gibbons, 8 Dowl. 419.

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under the Merchant Shipping Act, 1854, the Court of Chancery
may, in certain cases, entertain proceedings at the suit of the
owners, for the purpose of determining the amount of their lia-
bility, and stop all actions and suits pending in other courts in
relation to the same subject-matter (j).

The earlier acts extended to Ireland (A) ; but did not apply to
foreign ships or owners (/).

The provisions of the Merchant Shipping Act, 1854, limiting Ships to which
the liability of owners, are expressly declared by sect. 516, not l^^^^f^
to extend to British ships, not being recognized British ships tends.
widiin the meaning of that statute (m). A British ship now
means, as we have seen, a ship belonging wholly to natural-
bom British subjects, or persons made denizens or naturalized,
or bodies corporate established under, subject to the laws of,
and having their principal place of business in, the United
Kingdom, or some British possession (ti). And, by sect. 19, no
ship required by that act to be registered is, unless registered,
to be recognized as a British ship.

We shall see in subsequent Chapters how far the responsibility Liability under
of owners is limited by the express terms of the ordinary con- ^'^^' ^^^* ^^
tracts for carriage, and by the operation of the provisions of the
Merchant Shipping Act, 1854, relating to pilots; and also what
bearing the statutes to which we have referred have upon ques-
tions of collision (o).

We proceed to consider the liability of the owners for work Liability
and repairs done, and for stores furnished to the ship. In con- ^^* necbs- *
sidering this subject, it is important to recollect that legal owner- babies.
ship by itself does not create any liability for the ship's debts.
Strictly speaking, no liability arises from the mere fact of owner- No liahility hy
ship(p). Some misapprehension on this point existed formerly, [ei^ownor-'^
but it is now settled that the question as to the liability for ship,
repairs and necessaries is to be dealt with in the same way as

(j) Ante, pp. 61, 52. (o) See post. Chap. VI., Contract

(*) 6& 7 Will. 4, c. 61. ofAffreightment; Chap, v., Pilot;

(/) The Carl Johan, cited in argument Chap. IX., Collision.

in The Dundee, 1 Hagg. 113, and in the (p) Per Bayley, J., in BriggsY. WiU

judgment In The Girolamo, 3 Hagg. 186. hinson, 7 B. fi^ C. 35. See also Holt on

(m) Ante, p. 52. Shipping, 197.

(a) C^ V. Doherty, 4 K. & J. 357.

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before the passing of the Registry Acts, and that the inquiry
always is, who made the contract? upon whose credit was the
work done? and upon these questions the statutes requiring
registration, which have been in force from time to time, have
directly no bearing (y), though indirectly their operation is fre-
quently important, as the repairs are generally done by the legal
owner. In other words, the legal owner is usually liable,
not because he is the registered owner, but because he is usually
the real contractor.

It will be found accordingly that parties have been held liable,
because the work was done on their credit, although they had
parted with their shares; and that, on the other hand, a similar
liability has attached upon persons beneficially interested, but
not entitled under any legal transfer.

These rules have been often recognized, and have been acted
upon in some important recent cases. They apply to the cases
of mortgagees and lessees of ships, who are, in fact, so far as
this question is concerned, limited or temporary owners (r).

(q) Briggsy, Wilkinson^ 7 B.&C.30;
3 Kent's Comm. 133 ; Reeve v. Davist 1
A. & E. 312 ; Jennings v. GHffithSy R, &
Moo. 43 ; Young v. Brander, 8 East, 10 ;
Westerdell v. Dale, 7 T. R. 306 ; Annett
V. Carstairs, 3 Camp. 354 ; Rennie v.
Young, 2 De G. & J. 136. So in the
analogous case of a person whose name
appears in the Stamp Office return as
a proprietor of a newspaper, he is not
therefore liable in respect of a contract
relating to it, made after bis interest has
ceased, and, in fact, with other parties.
Holcroft V. Hoggins, 2 C. B. 488. In
some cases registered ownership has
been treated as creating a prima facie
liability; Cox r.Reid, 1 C. & P. 602;
Ex parte Machell, 2 Ves. & B. 216, and
the judgments in Frost v. Oliver, 2 £.
Sc B. 301. Whether this expression be
strictly accurate may be doubted, but
it is admitted on all hands, that if there
be such a primd facie liability, it is not
conclusive, but may be rebutted by the
special circumstances of each case. In
Rick V. Coe, 2 Cowp. 639, Lord Mans-
field said, "Whoever supplies a ship
with necessaries has a treble security;
1, the person of the master ; 2, the spe-
cific ship; 3, the personal security of
the owners, whether they know of the
supply or not" It must be recollected,
however, that if this observation in-
cludes mere legal owners, the later de-
cisions establish that they are not liable,

unless the contract is shown to be made
with their express or implied authority ;
and, further, that there may be cases in
which the master, acting as agent for the
owners, incurs no personal liability ; as,
for instance, where no credit is given to
him, or there is an express stipulation
that he shall not be personally liable.
It is perfectly open to the parties to con-
tract, so as to confine the responsibility
either to the master or the owner. Hos-
kins V. Slayton, Rep. temp. Hardw. 376 ;
Farmer v. Davies, 1 T. R. i08, and see the
observations of Lord EUenborough, C J.,
in Hussey v. CUristie, 9 East, 432 ; Story
on Agency, ss. 294, 296. In the words
of an early case, " The repairer of a ship
has prima facie his election to sue the
master who employs him, or the owners,
but if he undertakes it on a special
promise from either, the other is dis-
charged." Garnham v. Bennett, 2 Str.
816. The master is liable, in the first
instance, if it does not appear that any
credit was given to the owners, per
Tindal, C. J., in Essery v. Cobb, 4 C. &
P. 358.

(r) Briggs v. Wilkinson, 7 B. & C.
30. See as to when the charterer be-
comes owner pro hac vice, the cases
cited, post. Chap. VI., Contract op
Afpreiqhthent, and Parish v. Craw-
ford, 2 Stra. 1251 ; Fallejo v. Wheeler,
Cowp. 143.

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The difficulty in practice has always been to apply these prin-
ciples to the complicated facts of particular cases.

In the decided cases the attempt has generally been either to
infer a liabiUty from mere registered ownership, or to show that
the persons personally engaged in the transaction were clothed
with some express or implied authority from the parties sought
to be charged.

Thus, where the managing owner mortgaged his interest, and Mortgagees.
the mortgi^ee caused the transfer to be duly indorsed on the
certificate of registry, but the mortgagor continued, as before,
to manage the concerns of the ship, and the mortgagee did not
interfere or take possession, it was held, that he was not liable
for repairs and necessaries supplied under the orders of the
mortgagor («). So, on the other hand, where a legal owner Legal and
parted with the beneficial ownership, by contracting to sell his q^^^JJ^***
shares, and by taking a bill of exchange for part of the price,
and before a bill of sale had been executed, repairs were done
by the directions of the managing owner, and there was no evi-
dence to show that he had any authority from the legal owner
to order them, it was held, that the latter was not liable (0 ; and
in accordance with this principle, a person who holds himself
out as owner cannot escape from liability by setting up that the
conveyance to him was void for non-conformity with the pro-
visions of the Registry Acts ; but he is not liable unless he holds
himself out as owner, or credit is given to him individually (m).
In a case in bankruptcy (r), the rule was laid down by Lord
Eldon in these terms, "Where the repairs are executed in a
port in this country, the vessel, till parted with, is specifically
diargeable with their amount ; but the lien is lost with the pos-
session. Where the repairs are ordered by the master, he, in
the first place, incurs a personal liability, and considering him in
gaieral as the servant or agent of the owners in the employment
and management of the ship, they also become responsible for
his orders, unless they are expressly excluded by the terms of
the contract. The same observation applies where a part owner

(i) Briggs T. Wilkinson^ 7 B. & C. SO. as regarded strangers, substantially a

(/) Curling t. Robertson^ 7 M. & Gr. dormant or secret part owner, and that

336 ; Baker v. Buckle^ 7 Moore, 349. credit given to one part owner is credit

(«) Harrington v. Fry, 2 Bing. 179. given to all. See Collyer on Fart 686;

In this case the defendant was held not see also Mclver t. Humble, 16 East, 169.

to be liable. The decision has been (v) Ex parte Bland, 2 Rose, 92. See

questioned, on the ground that he was, also J'hompson v. Flnden, 4 C. & P. 158.

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gives the order, the liability attaches against them all, unless it
be expressly provided against."

Recent de- These principles receive considerable illustration from some

recent cases upon the subject. In one of these (or) the legal
owner of a ship was sued for the price of rigging supplied to
the ship subsequently to the execution by him of an invalid
executory contract for the sale of the ship. The rigging was
necessary for the ship, and had been supplied to her whilst she
was in dock in London, on the order of the acting and registered
master. The defendant was at this time the registered ovnier.
The plaintiff had, about the time of the supply of the goods (but
whether before or after was uncertain), inspected the register.
Before the goods were supplied the defendant had entered into
an agreement (which was, by reason of the Registration Acts
then in force, not binding, as it did not recite the certificate of
registration) to sell the ship to a third person to be employed as
an emigrant ship, the defendant agreeing to repair her so that
she should be approved of by the Emigration Commissioners.
The master had been appointed by the intended purchaser, and
the defendant had never seen him or desired him to order any-
thing for the ship ; but there was evidence to show that the name
of the master had been put on the register with the concurrence
of the defendant, and that whilst he was acting as master the
defendant had, concurrently with the purchaser, kept possession
of the ship, having on board of her agents who gave orders
respecting other repairs which were being done to her. It ap-
peared, also, that the dock dues had been paid by the defendant ;
that the ship, whilst in dock, had been new coppered, and had
had other rigging supplied to her at the expense of the defendant,
and that the rigging in respect of which the action was brought
ought to have been supplied by the defendant, under the agree-
ment between him and the intended purchaser; and that some
time after the supply of the rigging, the contract of purchase
not having been completed, the defendant took exclusive pos-
session of the ship, and sent her abroad under another master,
carrying with her the cordage in question. Upon these facts
the Judges differed as to whether there was any evidence that
the rigging had been supplied on the credit of the defendant, or

(«) Frott V. Oliver^ 2 E. & B. 801.

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that he had given authority to the master to pledge his credit.
Lord Campbell, C. J., and Wightman and Crompton, J J., were
of opinion that there was evidence to go to the jury of his
liability. Erie, J., was of a contrary opinion, holding that the
evidence showed, in fact, a contract by the master on behalf of
the purchaser who had appointed him, and that there was no
evidence from which it could be inferred that the master had
authority to bind the legal owner. Shortly after this case an
action was brought against the same defendant by another trades-
man for goods supplied to the same ship upon the order of the
master, under substantially similar circumstances (y). The case

Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 11 of 101)