Whether the ship may be liable where the owner is not. the main object of arresting a vessel in a cause of damage is to cause an appearance on the part of her owners to answer for damage to the plaintiff's ship; and that the process of the Court can be enforced against a ship without reference to the question whether her owners at the time of her arrest were or were not her owners when the collision occurred. Proceedings against the ship in Admiralty provide the sufferer by collision with a remedy in many cases where he would otherwise be without redress; as where the owners of the wrong-doing ship are resident abroad, or for other reasons cannot be sued personally. always concurrent (a). But The question has arisen in several cases whether the ship may be liable in proceedings in rem where the collision is not caused by the fault of the owner or his agents, and where, consequently, he could not be made liable at law. In some recent cases the liability of the ship and the responsibility of the owners have been spoken of by the Privy Council as if they were for the acts of the master (propositus, magister), though not always for the acts of the crew. Where the exercitor and the general owner (dominus) were not the same, the latter was free from liability: 3 Kent's Comm. 161, note. Bynkershoek contends that the exercitor was not liable in the exercitoria actio for damage to another ship by the fault of the master: ei autem mandatum non est aliorum naves obruere; quod si fecisset, ipse (magister), quod dedit, luat, non magister. But see contra Voet ad Paudect. 14, 1, 7: quod si obliquerat (magister) si quidem in ipso officio cui erat propositus, dum forte datá operâ, vel culpâ atque imprudentia manifesta in navigium alienum impegit suum... exercitor ex quasi delicto teneri debebit; and see Huberi Prælect., jur. civ., 14, 1, 8, to the same effect. By some authorities it is stated generally that the owner was liable for the obligations of the master arising ex delicto: 3 Kent's Comm. 161, note; and per Ware, J., in The Rebecca, Ware's Rep. 188; and The Phebe, ibid. 263, 268. For injury to cargo or passengers on board his own ship the owner or exercitor was liable under the edict. de nautis, &c., D. 4, 9; where there were several owners, each to the extent of his share only: D. 4, 9, 7, 5. In the exercitoria actio owners were liable in solido for the acts of the master; but if they contracted in their own names (per se exerceut), only in proportion to their respective shares in the ship: D. 14, 1, 4. By the Aquilian law the owners were not liable for the negligence of the master or crew, the only remedy being against the actual wrong-doer: Bynkershoek, Observ. jur. Rom. 1. iv., c. 16; D. 9, 2, 29, 4. () The Diana, Stuart v. Isemonger, 4 Moo. P. C. C. 11, 19; The Amalia, 1 Moo. P. C. C. N. S. 471, 484; The Halley, L. R. 2 P. C. 193; The Orient, 3 P. C. 696, 703; The M. Moxham, 1 P. D. 107. this is not always the case. There are several decisions of Where a yacht was placed by her owners in the hands of an agent for sale, and whilst in his possession, and owing to his negligence in not striking her top gear she drove from her moorings and injured another ship, it was held that the yacht was liable. The proceedings being in rem, Dr. Lushington said that the common law doctrine as to the non-liability of her owner for the negligence of an independent contractor had no application (c). charter. Where a vessel was chartered to the French Govern- Ships under ment, and whilst in tow of a steam-ship, which the charterers ordered her to employ, by the fault of the steam-ship, went foul of a third vessel, Dr. Lushington held that, the proceedings being in rem, the maritime lien for damage attached, notwithstanding any prior contract between the owner and a third party. "It is impossible," he said, "that because a person has entered into a voluntary contract by which he is finally led into mischief, that (b) Besides the cases mentioned below, it was so held in The Neptune the Second, 1 Dods. Ad. 467; and The Girolamo, 3 Hag. Ad. 169, where the vessel was condemned for the fault of a compulsory pilot. These decisions were, however, not followed in subsequent cases : see The Protector, 1 W. Rob. 45; The Maria, ibid. 95. In The Druid, 1 W. Rob. 391, Dr. Lushington said that the liability of the ship, and the responsibility of the owners, were convertible terms. In the case of one who charters or hires a vessel, and works her with his own crew, this dictum must be taken to refer to the charterer, in his character of pro hac vice owner, and not to the actual owner. In America it has been held that the liability of the ship arises without regard to the ownership see The China, 7 Wall. 53; The R. B. Forbes, 1 Sprague, 328; and The Cumberland, Stuart's Vice. Ad. Rep., Lower Canada, (c) The Ruby Queen, Lush. 266; D that can relieve him from making good the mischief which he has done." And he said that this was the case though the ship has been demised by the owner to another who has the appointment of the master and crew (d). The case anticipated by Dr. Lushington in The Ticonderoga recently came before Sir R. Phillimore, and was decided in accordance with the opinion of Dr. Lushington expressed in The Ticonderoga. In The Lemington (e) the vessel was chartered by her owners to a person upon terms by which the charterer had the sole and absolute management of her, and the appointment of her The charterer was to pay all expenses connected with the ship, and her owners were to receive one-fifth of her gross earnings. It was held by Sir R. Phillimore that the ship was liable in proceedings in rem. In this case crew. Sir R. Phillimore said : "A vessel placed by its real owners wholly in the control of charterers or hirers, and employed by the latter for the lawful purposes of the hiring, is held by the charterers as pro hac vice owners. Damage wrongfully done by the res while in possession of the charterers is therefore damage done by the owners or their servants, although those owners may be only temporary. Vessels suffering damage from a chartered ship are entitled, primâ facie, to a maritime lien upon that ship, and look to the res as a security for the restitution. I cannot see how the owners of the res can take away that security by having temporarily transferred the possession to third parties. A maritime lien attaches to a ship for damage done through the negligence of those in charge of her, in whosesoever possession she may be, if that damage is inflicted by her whilst in the course of her ordinary and lawful employment, authorised by her owners. Whether the (d) The Ticonderoga, Swab. Ad. 215. The liability of the ship as opposed to that of the owner is strongly marked in French law; see infra, p. 77. (e) 2 Asp. Mar. Law Cas. 475. damage is done through the default of the servants of the actual owners, or of the servants of the chartered owners, the res is equally responsible, provided that the servant making default is not acting unlawfully or out of the scope of his authority” (ƒ). In a recent case it was held that a iug, towing a ship in charge of a compulsory pilot, was liable for a collision between the tow and a third ship caused entirely by the tug acting in obedience to the orders of the pilot, and without negligence on her own part or on the part of the ship in tow (g). It has not been expressly decided whether the lien for damage attaches in cases where the Admiralty Court has jurisdiction only under the recent statutes, 3 & 4 Vict. c. 65 and 24 Vict. c. 10. If the collision occurs within the body of a county, or if one ship is injured by the negligence of those in charge of another ship, without actually being in contact with the latter (h), the wrongdoing ship may be sued in Admiralty in rem, and there are strong grounds for holding that in these, as in other cases of damage, the lien attaches (i). But it is not in (f) See also The Emily, ubi sup., p. 31, where a barge, worked by the hirer's servants, was held subject to arrest; Cf. also The Phebe, Ware, 263. The charterer of a ship in the situation of The Lemington, supra, p. 34, is held to be entitled to owner's salvage reward: The Scout, L. R. 3 A. & E. 512; but the actual owner is entitled to owner's salvage, where, notwithstanding the charter, the ship remains in his, or his agent's, possession: The Collier, L. R. 1 A. & E. 83; The Waterloo, 2 Dods. Adm. 433. In France it seems that a ship in the position of The Lemington is liable to the sufferer by collision as guarantie speciale:" Manuel de Droit Commercial, par P. Bravard Veyrières, 7th ed., par Ch. Demangeat, p. 343. In America the ship is liable by Act of Congress of 3rd March, 66 (g) The Mary, 41 L. T. N. S. 351. In this case the tug was in fact guilty of contributory negligence; so that the statement of the law as to her liability for the fault of the compulsory pilot was not necessary for the decision of the case. (h) As in The Industrie, L. R. 3 A. & E. 303; The Energy, ibid. 48. (i) The Two Ellens, L. R. 4 P. C. 161, 167. In America it has been held that a ship may recover in Common law action may be by action in and vice rem, versâ. every case in which the ship may be sued in rem that the lien attaches (k); and there are cases in which the Admiralty Court has statutory jurisdiction, as in the case of damage by a ship to a pier (1), and certain collisions. within a county (m), in which it does not appear to have been expressly decided whether the lien attaches (n). Where proceedings have been taken in rem in Admiralty, supplemented and the amount realised by the sale of the ship is not. sufficient to recompense the sufferer, he may bring his action at law for the residue of his loss (o); and, vice versa, an action may be brought in rem for damages which, owing to the defendant's insolvency, were not recovered at law (p). If the owner of the ship arrested appears and defends the action, he may be compelled to pay costs (9), beyond the value of the ship and freight, or the amount of his bail bond. Whether an excess of damages can be so recovered is doubtful (r). But to an action in rem Admiralty the value of an anchor : by the breaking of a ship's warp by improper straining is not within Admiralty jurisdiction: The Cygnus, 2 L. T. N. S. 196. (k) See The Pieve Superiore, L. R. 5 P. C. 482. (1) As in The Uhla, 3 Mar. Law Cas. O. S. 148; The Excelsior, L. R. 2 A. & E. 268; The Albert Edward, 44 L. J. Ad. 49; The Maid of the Mist, 21 W. R. 310, decided under the Court of Admiralty (Ireland) Act, 1867, s. 29. (m) See above, p. 31. (n) See The Two Ellens, L. R. 4 P. C. 161. (0) Nelson v. Couch, 15 C. B. N. S. 99; The Bold Buccleugh, 7 Moo. P. C. C. 267; The Orient, L. R. 3 P. C. 696, 702; The Pet, 20 L. T. N. S. 961. (p) The John and Mary, Swab. Ad. 471; The Bengal, ibid. 468; The Demetrius, 41 L. J. Ad. 69. (q) The John Dunn, 1 W. Rob. 159; The Freedom, L. R. 3 A. & E. 495. (r) See The Kalamazoo, 15 Jur. 885; The Zephyr, 2 Mar. Law Cas. O. S. 146; The Hero, Lush. 447. |