1855

Dec. 20.

Not proved.

Costs under 17 & 18 Vict. c. 104, s. 460.

Court will not certify in ordinary cases;

with gross misconduct. They may not have shown the greatest skill and ability under the circumstances, but they carried the vessel to a port of safety as rapidly as they could. I am of opinion that the services were valuable, and that they are not detracted from by anything that appears in the case. Then we come to the quantum. Looking at the number of persons engaged, and the time occupied, I am of opinion that 1507. will be an ample reward. This brings me to the question of costs. I am forced to look at the Act of Parliament, and I am reluctant to raise a question which may hereafter require considerable deliberation. I mean in this case to give costs to the salvors. If the act does not apply to this case, costs will follow as a matter of course; but if the circumstances bring the case within the meaning of the act, I have enough to justify me in certifying that it is a special case, and for the following reasons:-if the case were a simple one, having reference merely to the quantum to be assessed, to the time the service occupied, the dangers incurred, and so forth, I would not certify in a case of that kind, for I am compelled to carry out the Act of Parliament, and it is my duty to do so with perfect candour; I will never certify where I think the case ought not to have been brought here, and where there is not some difficulty. But in all cases of agreements, which are matters of difficulty for justices to decide; in all cases where there are where there are charges, as on the present occasion, for not charges of mis- going to the Mobile, as to the mode in which the Fenix was conduct, &c. navigated, and as to whether the salvors were not guilty of misconduct or neglect, I think it is but fit that the Court should certify, because it must have been the intention of the legislature that in some cases it should certify, and there are none where there are more difficulties than in these. In this case, then, I give 1501., and, if needful, I am ready to certify that it is a proper case for costs.

but will certify

in cases of

difficulty,

agreements, or

Deacon, proctor for the salvors.

Rothery for the Fenix.

THE CALEDONIA, M'DoWALL, Master.

Claim for Master's Wages under Sect. 191 of Merchant Shipping Act, 1854-Former State of the Law - Course of Proceeding under the present Statute.

The master must bring his claim for the whole amount of wages due, and cannot, in the first instance, go into any account between himself and the owners. The owners may either pay the wages claimed, or go into the whole account between themselves and the master. The mortgagees in possession can be in no better position than the owners-but 501. paid by them on account of wages since the vessel came into their possession was held not to open up the whole account incurred between the master and owners.

THIS

HIS was a cause of subtraction of wages, promoted by James McDowall, late master of the ship Caledonia, against the said ship and freight, and also against Alexander Macfarlane and David Forsyth, the mortgagees in possession of the said ship. In April, 1854, McDowall was hired by Archibald Galbreath and Co. to command the Caledonia on a voyage to Melbourne, &c., and back to a port in Great Britain, at the wages of 2001. per annum, and a commission of 24 per cent. on the net profits of the voyages. The vessel proceeded on the voyage, and returned to the port of London, under McDowall's command, about the 25th July, 1855; on the 3rd August she was taken possession of by Messrs. Macfarlane and Forsyth, as the mortgagees, and McDowall was suspended or discharged from the command. Being unable to obtain payment, McDowall entered an action in the Admiralty Court, in the sum of 1000l., and arrested the ship and freight. An appearance was given for the mortgagees in possession, and the vessel was bailed. The action was entered at 1000l. in order to cover advances made by the master on account of the ship and bills of exchange drawn by him on his owners, Galbreath and Co., for which he had now become liable. The master's claim for wages and for the balance of account with the owners was set out in a summary petition, which on the 14th November the Judge directed to be reformed by omitting everything except what related to the wages. Sect. 191 of the Merchant Shipping Act, 1854, under which the master is entitled to sue for his wages, provides, that "every master of a ship shall, so far as the case permits, have the same rights, liens and remedies for the recovery of his wages which by this Act, or by any law or custom, any seaman not being a master has for the recovery of his wages; and if in any proceeding in any Court of Admiralty or Vice-Admiralty touching the claim of a master to

S.

C

1855.

Dec. 20.

1855.

Dec. 20.

Judgment.

for wages.

Under 7 & 8 Vict. c. 112, s. 16,

wages, any right of set-off or counter-claim is set up, it shall be lawful for such court to enter into and adjudicate upon all questions, and to settle all accounts then arising or outstanding and unsettled between the parties to the proceeding, and to direct payment of any balance which is found to be due."

The amount claimed for wages and commission in the amended petition was 3167. The mortgagees admitted certain wages to be due, declared they had no intention of setting up any right of set-off or counterclaim, but tendered the sum of 1507. in full satisfaction of all such wages, together with such costs as are due by law. They stated that 57. had been paid to the master on account of wages, by the owners, previous to the voyage, and that certain other sums had been received by his wife from the same owners during his absence, and that 501. had been paid to him on account of wages, since the vessel had been in possession of the mortgagees, by their agents; they also disputed the amount of profit on the voyage, on which he claimed 2 per cent, as part of his wages.

Deane appeared for the master.

Twiss for the mortgagees in possession.

DR. LUSHINGTON said :-It is of importance that there should Master's claim be a clear understanding how a master's claim for wages stands. Originally the master had no right to resort to the Court of Admiralty for his wages, or for anything due to him from the owners (a); differing entirely from the seamen in this respect, his claims were considered as having no reference whatever to the ship. The first change made was by 7 & 8 Vict. c. 112, s. 16, which gave masters, in case of the bankruptcy or insolvency of the owner of the ship, the same remedies as seamen in regard to the recovery of wages due from the owner of any ship being a British subject. A difficulty occurred under this Act. It was customary for advance of wages to be made to seamen, but they never made any payment on account of the ship; whereas it is continually the case, that part of the master's wages are paid, say to his wife, during his absence on the voyage, and that he on the other hand makes considerable disbursements on behalf of the ship, and a running account is kept between him and the the Court could owners. Now this Court, under the 7 & 8 Vict., had no power not enter into such account between the owners and master; it was obliged to deduct from the wages claimed advances of wages.

any account between him

and the owners,

to go
into

any

(a) Abbott on Shipping, part 5, c. 4.

1855.

Dec. 20.

s. 191,

power to

the owners wish

decree the

paid, but could not give the master the advantage of considering any advances or payments made by him on behalf of the owners. It came to this, that the owners might gain, but could never lose, by such a proceeding. This is remedied by the 191st section of Under 17 & 18 the Merchant Shipping Act, and the law now stands thus: the Vict. c. 104, master in the first instance can only claim his wages; he, at first, has no power of opening up any running account between the owners and himself; and if the owners pay the sum so claimed for wages the master's mouth is stopped, at least in this Court. But if the owners choose to avail themselves of any advances the Court has made by them, or anything in the nature of set-off, they can adjudicate on only do so at the risk of going into the whole account between the account, if the master and themselves, and the Court has the power to direct to go into it; payment of any balance that may be found due. Now, in the otherwise will present case, the mortgagees can be in no better position than wages shown to the owners. What they are attempting is most unfair, and be due. would defeat the whole intent of the statute; they, in fact, say, We will pick out of your account with the owners just such items as suit our purpose, but will have nothing to do with the rest. This the Court will never consent to, and cannot, unless the whole account is to be gone into, take any notice of the sums so paid by the owners on account of wages, either to the master or his wife. As to the 50l. paid by the mortgagees since the conclusion of the voyage, the Court views it in a different light. The mortgagees in possession were no parties to the account between the master and the owners; they were not liable in action at common law or in suit at equity. In this proceeding against the ship their liability was for the wages alone, unless they chose to go into the general account, which the Court will not presume they intended, because they paid 507., after the conclusion of the voyage, on account of their own liability. As to the amount of commission, it must be referred to the registrar if the parties cannot agree. I pronounce for the wages, less 507. paid by the mortgagees, with costs to the present time,

Nicholl, proctor for the master,

Bathurst for the mortgagees.

1855.

Dec. 22.

Judgment.

THE JULIANA, T. CLEGHORN, Master.

Collision-Non-Exhibition of Light at Night-Lapse of Time in bringing Action.

A fishing sloop was run down at night about ten miles off the Eddystone light, and sunk; held, that she could not recover in an action for damage, for she saw the other vessel at some distance, but showed no light herself, as directed by the Admiralty regulations (a), issued in pursuance of the 295th sect. of Merchant Shipping Act; the opinion of the Court being that if she had shown a light the collision would not have taken place.

HIS was a suit promoted by the trawl sloop Fear-not

against the bark Juliana, to recover for a total loss occasioned by a collision between them, at 9 p. m. on the 24th of November, 1854, about ten miles from the Eddystone lighthouse. The sloop was proceeding to her fishing-ground close-hauled on the starboard tack, when she observed the barque, according to her account, distant about half-a-mile, steering down Channel free before the wind. The barque, according to the sloop's statement, altered her helm three times, and finally ran into her, in consequence of which she speedily sank, the crew being saved by boarding the barque. The barque, of the burthen of 246 tons, bound from London to Dominique, denied that she had so altered her helm, and attributed the accident to the sloop not exhibiting a light.

The Court was assisted by Captains Farrer and Owen.

Robinson and Bayford appeared for the sloop; Addams and Twiss for the barque.

DR. LUSHINGTON, without hearing counsel for the Juliana, or formally summing up the case to the Elder Brethren, said :-We are of opinion that it is impossible that this action can be maintained against the Juliana under the circumstances which are stated in this evidence; and, without any reference at all to the testimony of the witnesses who have been examined on the part of the Juliana, let us consider for a moment what is the evidence given and the statements made on behalf of the Fear-not, the vessel which was unfortunately destroyed. According to their State of night statement it was a clear and starlight night. Now the representations with respect to the weather made on the one side and on the other generally require to be taken with some deductions;

and weather.

(a) See App. 1.