1860. July 18. The pilotage was not compulsory. also to navigable rivers or channels which are declared to be subject to the act; but it is remarkable, that in the four sections which contain the special rules to which I have adverted, in the 12th and 28th, "port" and port alone is mentioned, whereas, in the 37th and 40th sections the words are "in every port, river, or channel, subject to the act," apparently, therefore, showing that where the legislature intended that the rules should be confined to the "port," it is so expressed, and when it intended the rules to be further extended there are additional words introduced. This certainly fortifies the construction which their Lordships are disposed to adopt. If it were necessary to advert to evidence which is not upon the proceedings before their Lordships, it would strengthen very considerably the conclusion at which they have arrived, because they learn that there has been an order made defining the limits of the port of Calcutta, and also the extent of the navigable river and channels which were to be subject to the act, and especially providing that sections 12, 28, 37, and 40 of the act were to be extended to the port of Calcutta. It is quite clear, therefore, that the limits of the port of Calcutta being defined, and the limits of the navigable rivers or channels being also defined, when a provision is made that these sections are to apply to the port of Calcutta, it must mean the port of Calcutta strictly so called, that is, as defined by the rules and regulations. But, without relying upon what is not properly in evidence, it is sufficient to refer to the terms of the order of the LieutenantGovernor of Bengal as set out upon the proceedings, by which it is merely declared that the port of Calcutta and the navigable rivers and channels leading to the port are subject to Act No. XXII of 1855. That being so, it is quite clear that, the 12th section not being specially extended to the navigable river or channel, it is excepted by the express terms of the 3rd section; and that the place where the collision occurred, not being a place which was subject to the operation of the 12th section, the owners of the Peerless were not bound to take a pilot on board, and, of course, there is an end of all questions arising upon the act of the local legislature. The third question being thus determined upon the act and the rules and regulations, it is unnecessary to consider the general principles on which the right of exemption from liability may be founded, because if the parties were not compelled to take a pilot the whole foundation of this part of the argument fails, and there is no ground whatever for saying that the owners are exempt from the ordinary liability which attaches upon them for the negligence of their servants. 1860. July 18. Under these circumstances their Lordships feel no difficulty Judgment affirmed, with in saying that they will humbly recommend to her Majesty to costs. affirm the decree of the Judge of the Court below, with costs. Tebbs, proctor for the appellants. Pritchard for the respondents. In the High Court of Admiralty. THE GLENMANNA. Bottomry-Allowance of Commissions included in the Bond Practice. Where cargo is unshipped, stored, and trans-shipped at a foreign port, and a re- 1 Commissions on freight in respect of the vessels chartered to trans-ship, disallowed. Advance of money to master for alleged services in taking care of the cargo and for personal expenses, not allowed as charges on cargo. In an appeal from a report of the Registrar the Court will not allow a party to set up a case which he did not endeavour to establish at the reference. BOTTOMRY. On the 31st of March, 1859, the ship Glen manna, then on a voyage from Bombay to Liverpool with a cargo of cotton, wool, seeds and other merchandize, having sprung a leak, put into port at the Island of St. Thomas. Upon survey made, the cargo was unladen and stored; and the ship having been condemned as unseaworthy, it was finally transshipped on board four vessels and carried to its destination. The master of the Glenmanna employed Messrs. Ball & Co. at St. Thomas's July 19. 1860. July 18. The pilotage was not compulsory. also to navigable rivers or channels which are declared t If it were necessary to advert to evidence which is n the proceedings before their Lordships, it would strength considerably the conclusion at which they have arrived, I they learn that there has been an order made defining the of the port of Calcutta, and also the extent of the na river and channels which were to be subject to the act, and cially providing that sections 12, 28, 37, and 40 of the ac to be extended to the port of Calcutta. It is quite clear, therefore, that the limits of the port of cutta being defined, and the limits of the navigable rive channels being also defined, when a provision is made that t sections are to apply to the port of Calcutta, it must mean port of Calcutta strictly so called, that is, as defined by the r and regulations. But, without relying upon what is not properly in evidence, is sufficient to refer to the terms of the order of the Lieutenan Governor of Bengal as set out upon the proceedings, by which is merely declared that the port of Calcutta and the navigable rivers and channels leading to the port are subject to Act No. XXII of 1855. That being so, it is quite clear that, the 12th section not being specially extended to the navigable river or channel, it is excepted by the express terms of the 3rd section; and that the place where the collision occurred, not being a place which was subject to the operation of the 12th section, the owners of the Peerless were not bound to take a pilot on board, and, of course, there is an end of all questions arising upon the act of the local legislature. The third question being thus determined upon the act and the rules and regulations, it is unnecessary to consider the general principles on which the riol n liability In the High Conrt of m THE GLENMANNA Bottomry-Allowance of Commissions incin Where cargo is unshipped, stored, and trans-shipper :, Commission of 5 per cent. on cash advances reduced to Commissions on freight in respect of the vessels allowed. Advance of money to master for alleged services in t for personal expenses, not allowed as charges on In an appeal from a report of the Registrar the Cou up a case which he did not endeavour to establi BOTTOMRY. On the 31st of Marc manna, then on a voyage from with a cargo of cotton, wool, seeds and of sprung a leak, put into port at the Islan survey made, the cargo was unladen and ing been condemned as unseaworthy, i on board four vessels and carried to its of the anna employed Messrs. I L com and re earned in lowance of a oursements on pinion that, inere applied in 2729 dol consider 1860. July 19. to take all proper measures with respect to the cargo and make the necessary disbursements. Before the cargo left he borrowed of Messrs. Rothschild & Co., on respondentia of the cargo the sum of 10,977 dollars to defray Messrs. Ball & Co.'s claim,-"the expenses arising from the said ship's entry at the port of St. Thomas's, and the charges incurred for the landing, storage, transshipping and other incidental expenses attendant on the said ship and her cargo"; as will appear more particularly in the schedule to the Registrar's report set out below. Annexed to the bond were copies of the bills of lading. On the arrival of the cargo at Liverpool it was arrested by Messrs. Cavan & Co., of the city of London, the holders of the bond. The consignees of the cargo, Edward Lawrence & Co., of Liverpool, entered an appearance to the action, and admitted the validity of the bond, which was then referred to the Registrar and merchants to determine the amount due. The defendants brought in all the accounts of the ship at St. Thomas's, and the plaintiffs brought in the bond, and an affidavit by the master of the Glenmanna, that he had received from Messrs. Ball the sum of 500 dollars for services in attending to the cargo, reshipping the same, and for his passage home to England. On the 22nd of December the Registrar reported due on the bond the sum of 7,788 dollars 34 cents, or 1,5811. 7s. 9d., according to the following schedule annexed to the report. With interest thereon at the rate of 4 per cent. per annum from 25th July, 1859, until paid. |