CASES DECIDED IN THE HIGH COURT OF ADMIRALTY OF ENGLAND, AND ON APPEAL TO THE PRIVY COUNCIL. (a) THE CLARA, ATKINS, Master. Collision-Priority of Claims where several Parties are suing, and the Proceeds are insufficient. Nature of proceedings in a cause of damage; liability of shipowners limited by statute. Of two plaintiffs in a cause of damage, the one obtaining the first decree is entitled to priority of payment from proceeds of the ship in Court; if the Plaintiff in a second suit is apprehensive that the value of the ship and freight will not satisfy the whole claim for damage, he must apply to the Court before any decree is pronounced. THIS HIS was a question arising out of two separate suits brought against the Clara for damage caused by collision; the first, by the owners of the ship Eliza; the second, by the owners of the cargo on board that vessel. On behalf of the owners of the ship the proceedings were as follows:-On 30th September, 1854, F. Clarkson entered an action on behalf of the owners of the Eliza in the sum of 2,000l. On 4th October Ring appeared to the action for the owners of the Clara, and extracted commission to take bail. On 12th October Ring returned commission with bail; both proctors agreed the value of the Clara at 1,2501., and a supersedeas was decreed. On 4th November Clarkson brought in his libel; on 14th November the libel was admitted, and witnesses were produced by Clarkson on the 13th, 14th and 18th December. (a) The appeal is to her Majesty, and is by her referred to the Judicial S. Committee of the Privy Council, who B 1855. Nov. 20. 1855. Νου. 20. The suit was regularly prosecuted, and on the 3rd May, 1855, the judge pronounced for the damage proceeded for, condemned Ring's party and his bail therein, and in costs, and referred the same as usual. On 13th June Ring alleged that he had paid to the credit of the Registrar's Account at the Bank of England 1,2837. 14s., being the agreed amount of the value of the Clara, and interest thereon. On behalf of the owners of the cargo the proceedings were as follows:-Lawrie entered an action in the sum of 1,6007. on 13th December, 1854; Ring appeared also to this action for the Clara, and on 27th December returned commission executed with bail, and alleged the value of the Clara as above. On 23rd January, 1855, Lawrie prayed, and the judge at his petition, with consent of Ring, decreed that the judgment to be given in this suit should be of the same tenor and effect, so far as respects the interests of their respective parties, as the judgment to be given in the action brought by the owners of the Eliza against the Clara. On 3rd May the judge, on motion of counsel, referring to the minute of Court of 23rd January, pronounced for the damage proceeded for, and condemned Ring's party and his bail therein, and in costs, and referred the same to the Registrar and merchants as usual. On 12th July the judge confirmed the Registrar's Report in both suits; and Clarkson then prayed that the whole of his party's claim should be paid in full out of the fund brought in by Ring, and remaining in the registry; this was objected to by Lawrie on behalf of owners of cargo, who prayed the judge to direct the proceeds to be paid pro ratâ to Lawrie's and Clarkson's parties. It appeared that Clarkson's claim, as allowed by the Registrar, was 755l., that of Lawrie was 1,3447., while the agreed value of the vessel condemned in the damage was only 1,2501.; thus it was of considerable importance, not only for this case, but as a question of principle, whether the claimants in equal degree were to be paid rateably, or whether the course of the proceedings entitled the owners of the ship to a priority of pay ment. The Advocate of the Admiralty and Swabey, for the owners of the cargo, urged that the time at which Lawrie's action was entered, the minute of Court of 23rd January and the decrees of 3rd May, which in law must be considered as contempo⚫raneous, distinguished the present case from that of the Saracen (a), (a) 4 Notes of Cases, 498, and 2 W. Rob. 451. and entitled Lawrie's party to a rateable payment of the sum in the Registry. Addams and Twiss, for the owners of the Eliza, contended that Clarkson was in possession of a prior decree, and, under the authority of the Saracen, was entitled to priority of payment to the full amount of his claim. 1855. Νου. 20. Dec. 4. from collision. DR. LUSHINGTON now delivered judgment, and said :-Before Judgment. stating the circumstances of this particular case, I think it may be convenient to make some observations of a general nature as Nature of suits to these causes of collision-or damage, as they are sometimes for damage called,—though, in so doing, I must necessarily repeat to some extent what I have said in the case of the Saracen. We all know that the owners of ships and cargoes damaged by collision had formerly various means of obtaining redress for any injuries they might have received. Any person whose property had been Action at destroyed or damaged might bring an action at common law common law. against the owners of the ship in fault. Every person damnified might bring an action, and in each action the Plaintiff might recover to the full amount of the damage received. In the Admiralty Court there were two modes of proceeding, In the Adby arrest of the person, or arrest of the ship. The proceeding in personam ; by arrest of the person has now for many years been obsolete; I cannot exactly say how long, but I think there was a precedent in 1780; the amount of damage done was the only limit to the amount that might be recovered. The proceeding by arrest of the ship-or in rem, as it is called-was the most sure, for to in rem. the extent of the value of the ship the Plaintiff would be sure miralty, freed of all bailed. of any amount of damage decreed. If the ship remained in the Ship sold by custody of the Court, and was sold by its decree to pay the decree of Court damage, of course the ship was not liable to a second detention; demands. she was sold by the Court free of all demands; but if bailed, I Quære, if know of no reason why she might not at that time have been arrested again at the suit of another claimant, nor why another claimant might not have proceeded, either at common law or in this Court, against the person. Thus things remained till the Liability statute passed (a) limiting the liability of the owners of the ship limited by doing damage to the value of the ship and freight; the legislature acting upon the principle that unlimited liability was prejudicial to the maritime interests of this country. The shipowner, however, could not take the benefit of this statute (a) The 53 Geo. 3, c. 159. This statute was repealed by 17 & 18 Vict. c. 104; but similar provisions in regard to the limitation of shipowners' liability are enacted by the 9th part of statute. 1855. Dec. 4. Practice of Admiralty where several Owners of vessel damaged generally in a position to first. unless he followed the course pointed out by the statute. Thus, if A. B., the owner of a ship damaged, brought his action at common law, or here, he could only recover to the extent of the value of the ship; but if C. D., the owner of the cargo or part of the cargo, also brought an action, he, too, unless stopped by an order of the Court, or by the shipowner resorting to Chancery, would recover to the amount of the value of the ship and freight, and so it might go on toties quoties. If the suit were brought here by arresting the ship, the first Plaintiff, supposing no bail to have been given, would be entitled, of course, to have the vessel sold to pay him what was deemed to be due, and in such case the ship could not be arrested again; but I cannot say that, if the ship were bailed, another Plaintiff might not also have arrested her. No such case has however, as far as I am aware, occurred. In this state of things what was the practice in this court? When I say the practice, I do not mean to say practice plaintiffs suing. in virtue of any rules, for I know of none; but I mean what was usually done. The owner of the ship damaged was almost universally the first to commence proceedings where the action bring their suit was not on behalf of the cargo as well as the ship; and this was naturally so, because the owner of the ship had the control over his master and crew, and would have more accurate knowledge of the circumstances attending the collision-in short, the best means of maintaining his action. When the owner or owners of the cargo subsequently commenced any action, it was usual for the owners of the ship proceeded against to consent that such subsequent action should abide the fate of the first. Where the ship proceeded against was of sufficient value to satisfy all demands, no difficulty could occur. When, however, the ship proceeded against was not of sufficient value to answer all demands, some difficulty might arise. First, if the ship had been bailed to answer the first action, that bail could not be responsible to the Plaintiffs in the subsequent action. The same or different persons, as the case might be, might have given bail to the subsequent action. If the ship remained in the custody of the Court, it or its proceeds would of course be liable to all just demands. The question whether the bail to the subsequent action would be liable, notwithstanding the full amount of the value of the ship had been paid by the bail to the first action, has not, to my knowledge, ever been mooted. In the Saracen I thought it necessary to allude to the possible occurrence of such a question. When the ship itself remained in the custody of the Court, and several actions were brought before a decree was pronounced in any one of them, the Court—though I do not remember that it was ever The bail to first action not responsible to plaintiff in second. 1855. Dec. 4. anxious to called upon to pronounce a formal decision-was always, so far as it had power, inclined to assist a proportionate distribution of the proceeds, and for obvious reasons:-first, because the owners Court always of the cargo lost or damaged were almost by necessity invariably assist a proporthe Plaintiffs in the subsequent action, not having the same means tionate distri bution, before of knowing the facts as the owners of the ship; secondly, pronouncing because, if the proceeds of the ship were all paid out to satisfy its decree. the first action, this Court could afford no remedy to the Plaintiffs in subsequent actions; and, thirdly, if the ship proceeded against was a foreign vessel, the Plaintiffs in a subsequent action might be said to have no practicable remedy at all. In almost all cases, if not all, such course was acquiesced in. The whole effect of the statute already adverted to, I think, has not been fully understood in these Courts; at which I am not surprised, as it has never been the subject of any distinct discussion or adjudication. It was indeed well known that no one Plaintiff could recover more than the value of the ship and freight; but the condition of a second Plaintiff-whether without the intervension of a Court of Equity he would or would not be barred from succeeding in a second action, where the ship was bailed-was left in doubt and uncertainty. With respect to the case of the Saracen, I adhere to all I have said, as reported in the "Notes of Cases." It is time that I should approach the facts of this case, and determine whether they fall within the Facts of principle of the decision in the Saracen, or whether any just present case. distinction can be discovered. On the 30th of September, 1854, Mr. Clarkson entered an action on behalf of the owners of the ship damaged. On the 4th of October Mr. Ring appeared for the owners of the ship proceeded against, and gave bail to the amount of 1,250. The cause went on in the ordinary way, and was heard on the 3rd of May, when judgment was given for Mr. Clarkson's parties. On the 13th of June Mr. Ring brought in 1,2831. 14s., being the agreed amount of the value of the shipagreed, I presume, by Mr. Clarkson and Mr. Ring, on behalf of their respective parties. On the 12th July the Registrar's Report was confirmed. Mr. Clarkson then prayed that his claim should be paid in full out of the proceeds in the Registry. To this prayer Mr. Lawrie, on behalf of the South-Eastern Railway Company, owners of part of the cargo, objected, and his objections were heard by act on petition; and it is on the facts disclosed therein that I have to decide whether Mr. Clarkson is entitled to be paid. in full out of the proceeds, in exclusion of Mr. Lawrie's parties. I must now see what was done by Mr. Lawrie on behalf of the South-Eastern Company. On the 13th of December, 1854, Mr. Lawrie entered an action for 1,6007. This was after the |