Pt. VII. 497-499.

Sale of goods by warehouse

men.

[1862, ss. 73, 74.]

Application of proceeds of sale.

[1862, s. 75.]

Warehouse

man's rent

497.-(1.) If the lien is not discharged, and no deposit is made as aforesaid, the wharfinger or warehouseman may, and, if required by the shipowner, shall, at the expiration of ninety days from the time when the goods were placed in his custody, or, if the goods are of a perishable nature, at such earlier period as in his discretion he thinks fit, sell by public auction, either for home use or for exportation, the goods or so much thereof as may be necessary to satisfy the charges hereinafter mentioned.

(2.) Before making the sale the wharfinger or warehouseman shall give notice thereof by advertisement in two local newspapers circulating in the neighbourhood, or in one daily newspaper published in London, and in one local newspaper, and also, if the address of the owner of the goods has been stated on the manifest of the cargo, or on any of the documents which have come into the possession of the wharfinger or warehouseman, or is otherwise known to him, send notice of the sale to the owner of the goods by post.

(3.) The title of a bonâ fide purchaser of the goods shall not be invalidated by reason of the omission to send the notice required by this section, nor shall any such purchaser be bound to inquire whether the notice has been sent.

498. The proceeds of sale shall be applied by the wharfinger or warehouseman as follows, and in the following order:

(i.) First, if the goods are sold for home use, in payment of
any customs or excise duties owing in respect thereof;
then

(ii.) In payment of the expenses of the sale; then
(iii.) In payment of the charges of the wharfinger or ware-
houseman and the shipowner according to such priority
as may be determined by the terms of the agreement
(if any) in that behalf between them; or, if there is
no such agreement:-

(a.) in payment of the rent, rates, and other charges due to the wharfinger or warehouseman in respect of the said goods; and then

(b.) in payment of the amount claimed by the shipowner as due for freight or other charges in respect of the said goods;

and the surplus, if any, shall be paid to the owner of the goods.

499. Whenever any goods are placed in the custody of a wharfinger or warehouseman, under the authority of this Part and expenses. of this Act, the wharfinger or warehouseman shall be entitled to rent in respect of the same, and shall also have power, at the expense of the owner of the goods, to do all such reasonable acts as in the judgment of the wharfinger or warehouseman are

[1862, s. 76.]

necessary for the proper custody and preservation of the goods, and shall have a lien on the goods for the rent and expenses (a).

(a) The lien created by this section is distinct from that of the shipowner for freight and other charges. The Energie, supra (s. 493), per cur. L. R. 6 P. C. at P. 316.

Pt. VII.

500-501.

men's protection.

500. Nothing in this Part of this Act shall compel any Warehousewharfinger or warehouseman to take charge of any goods which he would not have been liable to take charge of if this Act had [1862, s. 77.] not been passed; nor shall he be bound to see to the validity of any lien claimed by any shipowner under this Part of this Act.

local Acts.

[1862, s. 78.]

501. Nothing in this Part of this Act shall take away or Saving for abridge any powers given by any local Act to any harbour powers under authority, body corporate, or persons, whereby they are enabled to expedite the discharge of ships or the landing or delivery of goods; nor shall anything in this Part of this Act take away or diminish any rights or remedies given to any shipowner or wharfinger or warehouseman by any local Act.

Pt. VIII. 502.

PART VIII.-LIABILITY OF SHIPOWNERS.

HISTORY OF LEGISLATION.-The principle of limitation of shipowners' liability was unknown to the common law; it was introduced by 7 Geo. 2, c. 15 (amended by 26 Geo. 3, c. 86), in the cases specified in s. 502 of the present Act, and was applied by 53 Geo. 3, c. 159, to damage by collision. By these statutes the owner's liability was limited to the value of the ship and freight.

M. S. A. 1854, s. 504, extended the principle to cases of loss of life and personal injury, and provided that in such cases the value of the ship should be taken at not less than 15. per ton. This section was replaced by M. S. A. 1862, s. 54, which is reproduced in s. 503 of the present Act. By the Act of 1862, limitation of liability was extended to foreiga ships in the cases under that section, but the application of M. S. A. 1854, s. 503, was not altered. See now 8. 502 of this Act and note (b) thereto. The principle has recently been further extended to the owners of British ships from the time of their launch until registration, and to the owners of harbours, docks, piers, &c. See Merchant Shipping (Liability of Shipowners) Act, 1898; Merchant Shipping (Liability of Shipowners and Others) Act, 1900; and M. S. A. 1906, ss. 69, 70, 71.

See further, for the history of the legislation on this subject, Marsden on Collisions at Sea, 5th ed., Chap. VII.; and The Amalia (1863), 1 Moo. P. C. C. (N. S.) 471; B. & L. 151; 32 L. J. Ad. 191; 9 Jur. (N. S.) 1111; 8 L. T. S05; 12 W. R. 24.

For criticisms of the policy of this enactment, and as to its construction, see The Northumbria, 39 L. J. Ad. 3; (1869), L. R. 3 A. & E. 6; The Andalusian (1878), 47 L. J. Ad. 65; 3 P. D. 182; Chapman v. Royal Netherlands S. N. Co. (1879), 48 L. J. Ch. 449; 4 P. D. 157 (C. A.); The Ettrick or Prehn v. Bailey (1881), 6 P. D. 127; 45 L. T. 399 (C. A.); The Warkworth (1884), 53 L. J. Ad. 4; 9 P. D. 20.

The obsolete provisions as to procedure before a sheriff's jury contained in M. S. A. 1854, ss. 507-513, are not re-enacted in this Act.

Limitation of shipowner's liability in certain cases of loss of, or damage to, goods.

[1854, s. 503.]

NOTE.-Sects. 502 to 509 inclusive are now extended and apply to the owners, builders, or other parties interested in any ship built at any port or place in His Majesty's dominions, from and including the launching of such ship until registration thereof, under s. 2 of this Act, provided that, in the case of claims under s. 502, the ship has not become a foreign ship. See Merchant Shipping (Liability of Shipowners) Act, 1898; and M. S. A. 1906, s. 70.

502. The owner (a) of a British sea-going ship (6), or any share therein, shall not be liable to make good to any extent whatever any loss or damage (c) happening without his actual fault or privity (d) in the following cases, namely:—

(i.) where any goods, merchandise, or other things whatsoever
taken in or put on board his ship are lost or damaged
by reason of fire (e) on board the ship (f); or
(ii) where any gold, silver, diamonds, watches, jewels, or
precious stones taken in or put on board his ship,
the true nature and value (g) of which have not at the
time of shipment been declared by the owner or shipper
thereof to the owner or master of the ship in the bills

of lading or otherwise in writing, are lost or damaged
by reason of any robbery, embezzlement, making away
with, or secreting thereof.

(a) "Owner.".
-The decisions cited in note (a) to s. 503, appear also applicable
to this section. "Owners" includes charterers by demise. See M. S. A. 1906,
8. 71. There is no statutory definition of the meaning of "demise," as applied
to a ship, but it would seem from the cases of Parish v. Crawford (1745), 2
Stra. 1251; Newbury v. Colvin (1832), 8 B. & C. 166; Manchester Trust v. Furness,
[1895] 2 Q. B. 539; 8 Asp. M. L. C. 57, and the other cases cited in Abbott's
Merchaut Shipping, 14th ed., 57-75, that a demise only takes place when the
ship and crew are handed over to the charterers so as to be absolutely under
their control. See also M. S. A. 1906, s. 71, note (a) and cases there cited.

66

(b) The word "British" has been inserted here for greater clearness. As to British ships not recognised as such, see s. 508. 'Sea-going":-see note to s. 260. S. 502 applies to any ship, whether sea-going or not, from the time of its launch until registration, provided it has not become a foreign ship. See Merchant Shipping (Liability of Shipowners) Act, 1898, s. 1, and M. S. A. 1906, s. 70. Ship"-see s. 742.

66

(e) The section does not exempt shipowner from contribution to general average where goods are injured by water used in extinguishing fire. Schmidt v. Royal Mail S.S. Co. (1876), 45 L. J. Q. B. 646.

(d) See s. 503, note (d), "Fault or privity."

(e) Damage by smoke and water used in putting out a fire is damage by reason of fire within the meaning of this section. The Diamond, [1906] P. 282.

(f) Where goods were destroyed by fire on board a lighter by which they were being conveyed to the ship, it was held, under similar words in 26 Geo. 3, c. 86, s. 2, that the owners were not entitled to limitation of liability. Morewood v. Pollok (1853), 1 E. & B. 743; see also note (e) to s. 503.

Williams v.

(9) A bill of lading describing the goods as "one box containing about 248 ounces of gold dust" was held not to be a sufficient declaration. African S.S. Co. (1856), 1 H. & N. 300; 26 L. J. Ex. 69; 2 Jur. N. S. 693. Semble, the word "true" qualifies "nature" only, and not "value.” Ibid. See also Gibbs v. Potter (1842), 10 M. & W. 70.

503.-(1.) The owners (a) of a ship (6), British or foreign (c), shall not, where all or any of the following occurrences take place without their actual fault or privity (d); (that is to say,) (a.) Where any loss of life or personal injury is caused to any person being carried in the ship;

(b.) Where any damage or loss is caused to any goods, merchandise, or other things whatsoever on board the ship (e);

(c.) Where any loss of life or personal injury is caused to any person carried in any other vessel (f) by reason of the improper navigation (g) of the ship;

(d.) Where any loss or damage is caused to any other vessel, or to any goods, merchandise, or other things whatsoever on board any other vessel, by reason of the improper navigation of the ship;

be liable to damages (i) beyond the following amounts (7); (that is to say,)

(i.) in respect of loss of life or personal injury, either alone or together with loss of or damage to vessels, goods, merchandise, or other things, an aggregate amount not

Pt. VIII.

503.

Pt. VIII. 503.

1854, s. 506.]

exceeding fifteen pounds for each ton of their ship's tonnage; and

(ii.) in respect of loss of, or damage to, vessels (ƒ), goods, merchandise, or other things, whether there be in addition loss of life or personal injury or not, an aggregate amount not exceeding eight pounds for each ton of their ship's tonnage.

(2.) For the purposes of this section

(a.) The tonnage of a steam ship shall be her registered tonnage with the addition of any engine room space deducted for the purpose of ascertaining that tonnage (1); and the tonnage of a sailing ship shall be her registered tonnage:

Provided that there shall not be included in such tonnage any space occupied by seamen or apprentices and appropriated to their use which is certified under the regulations scheduled to this Act with regard thereto (m).

(b.) Where a foreign ship () has been or can be measured according to British law, her tonnage, as ascertained by

that measurement shall, for the purpose of this section, be deemed to be her tonnage.

(c.) Where a foreign ship has not been and cannot be measured according to British law, the surveyor general of ships in the United Kingdom, or the chief measuring officer of any British possession abroad, shall, on receiving from or by the direction of the court hearing the case, in which the tonnage of the ship is in question, such evidence concerning the dimensions of the ship as it may be practicable to furnish, give a certificate under his hand stating what would in his opinion have been the tonnage of the ship if she had been duly measured according to British law, and the tonnage so stated in that certificate shall, for the purposes of this section, be deemed to be the tonnage of the ship.

(3.) The owner of every sea-going ship or share therein shall be liable in respect of every such loss of life, personal injury, loss of or damage to vessels, goods, merchandise, or things as aforesaid arising on distinct occasions (o) to the same extent as if no other loss, injury, or damage had arisen.

This section has been further extended by the Merchant Shipping (Liability of Shipowners and Others) Act, 1900, s. 1, to all cases.

Where (without their actual fault or privity) any loss or damage is caused to property or rights of any kind, whether on land or on water, or whether fixed or moveable, by reason of the improper navigation or management of the ship.