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not recognised as such within the Merchant Shipping Act of 1854,' or to any master or seaman, although a part-owner also of the ship to which he belongs, for the purpose of lessening or taking away any liability to which he is subject in the capacity of master or seaman.*
Lmal Peooekd- The several part-owners of a ship make in law but one „' owner: and in case of any injury done to their ship by the
By owners on * 0 J 1 J
wrongs. wrong or negligence of a stranger, they ought regularly to join
in one action at law for the recovery of damages, which are afterwards to be divided among themselves according to their respective interests; otherwise the party, who had committed the wrong, might be unnecessarily harassed with the expense of several suits to obtain the same end as could be equally well gained in one. But this rule of law is made for the ease of the wrong-doer. If, therefore, he does not plead the nonjoinder in abatement, or give notice to the plaintiff that he objects to the non-joinder of certain other part-owners with him in the action, and the amendment is not made before, or at the trial of the action, according to the statute,5 the single part-owner will recover damages for the injury proportionate to his share in the ship, whether the nature of his interest is made to appear upon evidence at the trial, or is originally stated by liimself in the allegation of his cause of complaint.4 And if afterwards another part-owner sues for his own interest, the defendant can no longer avail himself of the objection, because the party to the first suit has no longer any matter of complaint.5 In case of the death of any part-owner after an injury received, the right of action survives in general to the surviving part-owners, who must afterwards pay to the personal representatives of the deceased the value of his share.
In case, however, of an action for the freight of goods By owners ou conveyed in a general ship, all the part-owners ought to join, or if they do not, the defendant may avail himself of the objection by evidence at the trial, and without plea in abatement; according to the general rule of law, and the distinction between contracts and wrongs;1 unless perhaps some one have received his own share, or have released his claim to it. An additional reason for the joinder of all the part-owners as plaintiffs in the suit in this case, is that all of them are partners with respect to the joint adventure of the ship: and upon this consideration, Lord Eldon, in a case of bankruptcy, wherein it appeared that the owners of a ship, upon a settlement of accounts with the master, who had become a bankrupt, were indebted to him, and that, on the other hand, he also was indebted to some of them severally upon separate and distinct concerns, refused to allow the latter to set off their respective demands against the claim of his assignees for their shares of the general debt.3 And settlement of a claim of demurrage in a foreign port with one part-owner will sustain a plea of accord and satisfaction to an action by the owners on the same demand.'
If part-owners enable their co-owner to deal with their property as his own, they have no right of action against third persons in respect of transactions with him concerning it,' unless it can be shown that the dealings were with him as the agent of his co-owners.'
On the other hand, in an action against the part-owners Against owners, upon any contract relating to the ship, if all are not sued, although regularly such action should be brought against all jointly, the defendants can only avail themselves of the objection by plea in abatement;6 and if they omit to plead such a plea, the plaintiff will recover his whole demand, and
1 1 Wms. Saund. 291 k, note 2. 3 Alexanders Dowie, 1 H. & N. 152.
There is a loose note in 3 Kecble, 444, 4 Sims v. Brittain, 4 B. & Ad. 375;
Stanley r. Aylea, of a dictum of Chief Hatsall v. Griffith, 2 Cr. & M. 679;
Justice Hale at Nisi Prius, to the con- Sims v. Bond, 6 B. & Ad. 389.
rrary of what is here advanced in the 6 Sims v. Bond, supra.
t' st; but the reporter adds, that the 6 See 1 "Wms. Saund. 291 b, note 4,
uuse went off to a reference. Pasuiore v. Bonsfiekl, 1 Stark. 2AG.
s Ex parte Christie, 10 Ves. jun. 105.
the defendants must afterwards call upon the others for contribution.' Where the action is founded on matter ex quasi contractu, and the declaration alleges a breach of duty, and not a breach of promise, it has been much questioned, whether one part-owner who is sued alone, can avail himself of this plea, and also whether, if the action be brought against more persons than appear at the trial to be part-owners, the plaintiff can sustain his suit against those who appear to be so, or must fail altogether. The Court of King's Bench decided, that such a plea is not admissible,11 and the Court of Common Pleas, that it is;' so that at first sight the cases seem to be conflicting. Perhaps the principle is this:—"Where the action is maintainable for the tort simply, without reference to any contract made between the parties, no advantage can be taken of the omission of some defendants, or of the joinder of too many; but where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by showing such contract, there, although the plaintiff shapes his case in tort, he shall yet be liable to a plea in abatement if he omit any defendant,4 or to a nonsuit, if he join too many/ and the judge at the trial refuse to allow an amendment.5 After verdict against one of several defendants in an action of this description, on motion to enter a nonsuit, the Court held that the declaration might and therefore must, after verdict, be read as a declaration not on contract but in case for a tort, and that one of several defendants miglit be found guilty upon it.6 As joiot-con- ^ a tradesman, who has repaired a ship, take from some of
tractors. the part-owners sums equivalent to their shares, they still
remain responsible for the residue of the debt, if it is not paid by the others, unless at the time of the payment the tradesman specially agree to discharge them from all further demand.
upon some good consideration inducing him so to do, such as payment before the expiration of the usual credit; or release them by deed,1 which the law presumes never to be done except upon good consideration. In this respect, the law of England differs from the Civil Law, which gives an action against any one part-owner upon a contract made by the master to the full extent of the demand, but in the case of contracts made by the part-owners themselves, holds each to be chargeable only in proportion to his own share of the ship.* By the law of Holland, the several part-owners are in all cases chargeable only according to their respective interests in the ship.3
In case of loss of life, or personal injury, it is in the dis- Restraint on cretion of the Board of Trade within the United Kingdom, SSSrfiSLrf upon riving three days' notice to the owners, to have a common !ife and i-wwnal
1 ° ° injury.
jury, or, as either party may choose, and upon due notice to
but if not, then such damages in the case of each death or injury so occasioned are to be assessed at thirty pounds; and
1 Teed & another v. Baring & others, before Lord Ellenborough, C. J., at Guildhall 1808. The receipt given by one of the plaintiffs was as follows: "Received 30th May, 1804, from Messrs. B. M. k Co., one-fourth owner of the ship William, Captain James Thomson, the sum of 450?., being the amount of their proportion of the said ship's repair- lately done at Plymouth, we having settled with the other owners, respectively. John Teed & Co." Messrs. Barins; 4 Co. knew that the proportions had been adjusted, but not paid. See Fitch v. Sutton, 5 East, 230;
Hunter v. Wright, 1 East, 20.
2 Dig. 14. 1. 1. 25. and 14. 1. 2. 3. & 4. Si plures naveni exerceant, cum quolibet eoram in solidum agi potest. Si tamen plures per se navem exerceant, proportionilms exercitionis conveniuntur; neque enim inviceni sui magistri videntur.
3 Vinnius in Peckium, 155.
4 17 & 18 Vict. c. 104, § 507, 508, 509 ; the costs may be taxed, and payment thereof and of the damages enforced by rale or order of a superior court or a judge thereof, § 509.
the gross amount so assessed is the first charge upon the value of the ship and freight. There is no question of amount of damages before the jury; this is fixed by statute as the maximum charge upon the owners, and the maximum amount payable in each case; but the appropriation of the money so obtained is in the discretion of the Board, who may award less, never more, than thirty pounds in any one case, subject to the deduction of any costs incurred, according to the evidence before them, allotting, in cases of death, part thereof to the husband, wife, parent, and child of the deceased. If the gross amount obtained by the Board is insufficient to meet the demands upon it, the several claims thereon must abate proportionally; and if there is a surplus remaining after payment of such sums as the Board think fit in each case to award, it is to be repaid to the owners, to form part of the general fund to meet any other claims of loss and injury.1 When, and with It is only to the residue of the general fund provided by the ciaVman^may"011 statute, and remaining over and above such payment to the bring act:on. Board that any one may look who is dissatisfied with the statutory amount of damages, or the damages obtained by compromise; and who, after his share is repaid to the owners, proceeds by action at law on his individual claim. And, besides, if the damages recovered in such action do not amount to more than double the statutory sum, the plaintiff is liable for the costs of the action.'
No person in any case of such loss of life or personal injury is entitled to institute legal proceedings in the United Kingdom against the owners, until the inquiry instituted by the Board of Trade is completed, or the Board have declined to institute any such inquiry; but one month's delay to institute an inquiry after notice to the Board from any person of his desire to institute legal proceedings is evidence of refusal on the part of the Board, and entitles him to proceed.3 In that case, if he recover, he is not affected by the circumstance of the Board of Trade afterwards instituting an inquiry, further than t that he is paid rateably with the Board.*
Subject to such right in the Board of Trade within the
1 17 & 18 Vict. c. 104, § 509, 510. 3 Ibid. § 512.
5 Ibid. § 511. * Ibid. § 513.