1888 THE and hurt him. After this the plaintiff began work, and while at work the rope broke where it was spliced, and in ENRIQUE. Consequence the plaintiff was thrown violently from the steamer to the scow, a distance of seven or eight feet, and was quite seriously injured. He was laid up and unable to work for a length of time. The steamer was arrested on a claim for personal injury in the sum of $1,000. The Court, however, held that the plaintiff could not recover; that there was no jurisdiction; that the Vice Admiralty Courts Act, 1863, did not apply; and the action was accordingly dismissed with costs. Daniel Mullin, for the plaintiff, cited The Teddington (1); The Sylph (2); The Beta (3); The Virgil (4); The Sarah (5); The Friends (6); The Toronto (7); The Chase (8); 24 Vict. c. 10; 26 Vict. c. 10; Coote. Ad. Prac. 13. F. E. Barker, Q. C., for the vessel and owners, contended that the action should be dismissed for the following reasons: (1) There was no evidence of negligence, and without negligence on the part of ship or crew no action will lie. (2) The plaintiff was not in ship's employ, but in employ of Callaghan, in no way connected with ship. He was either Callaghan's or Busby's servant, and engaged by them in loading the coal. There was no duty in any way arising from the ship to the plaintiff. (3) The plaintiff was guilty of contributory negligence, or the same thing; he, with full knowledge of the danger, if there was any, undertook the work and placed himself in a position of danger, and cannot recover. Volenti non fit injuria. (4) Callaghan, the plaintiff's employer and principal, selected and used the rope with full knowledge of its defects, if it had any, and gave full notice of same to plaintiff, after a chain had been offered and refused by Callaghan, as he preferred a rope. (5) The Court has no jurisdiction for a personal injury of this kind. (6) If the Court has jurisdiction under the Act cited, it is only in cases where the injury would be a damage (1) Ante, p. 45. (2) L. R. 2 A. & E. 24. (4) 7 Jur. 1174. (5) 1 Stuart, 89. (6) Ibid, 118. (7) Ibid, 170. (8) Young's Ad. Dec. 117. done by the ship herself. He cited Welfare v. London & Brighton, &c., Ry. Co. (1); Senior v. Ward (2); Smith v. Brown (3); The Vera Cruz (4). Mullin, in reply, contended that the ship supplied the rope and derrick, and that when the defect in the rope was pointed out to the mate, he insisted it was safe, and the ship was therefore liable for the injury. The contract between the ship and Busby was that, while the latter had to put the coal on board, the ship had to provide the hoisting gear. In this view it was therefore immaterial whether plaintiff was in employ of ship or not. It was the duty of the ship to furnish safe and proper appliances. The Vera Cruz was not applicable to this case, but the cases he had already cited were in point. The plaintiff had lost two months' time, and should be allowed at least $2.50 per day, and further damage for his bodily injury and medical attendance. The following judgment was now (June 15, 1888) delivered by WATTERS, J. This was an action in rem brought by the plaintiff to recover damages for personal injuries sustained by him on board the steamer Enrique, in August, 1887, whilst tending the fall for hoisting coal tubs on board the ship from a scow alongside. The steamer was anchored in the stream in this harbor, and was at the time being supplied with coal, which was unloaded from the scow. The plaintiff was employed on the deck of the ship tending the hoisting rope which lifted the coal tubs from the scow to the ship's deck, where he would dump the coal into wheelbarrows. This hoisting rope broke near the steam hoisting winch on deck whilst hoisting a tub of coal, and the rope caught the plaintiff and pulled him over the rail down into the scow, whereby he sustained bodily injury. The steam hoisting winch, rope and gear had been furnished by the steamer. The suit was brought under the Vice-Admiralty Act of 1863, sec. 10, which provides that the Vice-Admiralty Court (1) L. R. 4 Q. B. 693. (2) 1 E. & E. 384. (3) L. R. 6 Q. B. 729. (4) 9 P. D. 88. 1888 THE ENRIQUE. 1888 shall have jurisdiction over claims for "damage done by any THE ship." Upon the opening, and again at the close of the ENRIQUE. case, it was urged by Dr. Barker, for defendant, that this Court had no jurisdiction over a claim for a personal injury of this kind; that the jurisdiction only extends to claims for damage done by the ship itself. Other grounds were also urged against the plaintiff's right to recover, viz.: That plaintiff was not in the employ of the ship; that no negligence was imputable to the ship or her officers to render the ship liable; and further, that plaintiff had continued at the work of hoisting with full knowledge of the danger, and that he thereby took the risk upon himself. Since hearing the arguments in this suit I have seen two cases bearing immediately upon the question of the Court's jurisdiction as raised in this case. First, the case of The Robert Pow (1), the cause was entered as a cause of damage on behalf of the owners of the Ilma against the steam tug Robert Pow. The petition alleged that the Ilma had engaged the Robert Pow to tow her, and that, in disobedience of the pilot's orders, the master of the tug so towed the Ilma that she took ground and received damage, and prayed the Court to pronounce for such damage. It was objected that the Court had not jurisdiction; that the case was no cause of collision and no case of damage proper, but was a suit for breach of contract. The Court said it was obvious that the damage was occasioned by the negligence of those on board the tug, and was no doubt a breach of the contract that the towage service should be properly performed; but, on the other hand, there was no collision of any kind between the two vessels, and the question was whether the Court of Admiralty, under the seventh section of the Admiralty Act of 1861, had jurisdiction to try the case. The words of the seventh section are: "The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship." The Court said that, as to the terms "claims in the nature of damage," in the statute 3 & 4 Victoria, c. 65, or "damage," under section 7 of the Admiralty Act of 1861, the word "damage" must be taken accord (1) Br. & Lush. 99. ing to the well understood meaning of the phrase in the Admiralty Court, namely, "damage done by collision." The petition was rejected with costs. The last case on the subject is The Victoria (1), reported in January, 1887. The plaintiffs in this case were owners of cargo laden in the Victoria. The cargo had been injured by a collision between the Victoria and the Cervin, for which the Victoria was pronounced solely to blame in an action between her owners and the Cervin. The Victoria was bound from the East Indies to Havre, calling at Malta for orders. The collision took place before reaching Malta. All her cargo was discharged at Havre. Plaintiffs commenced an action in rem against the Victoria for damage to cargo, and she was arrested on the action. For the defendant it was contended there was no jurisdiction in the Court to entertain the action; that the Admiralty Act of 1861, sec. 7, applied only to damages done by a vessel to something with which it can come in contact, and not to cargo on board. Butt, J., said: "I am clearly of opinion that this is an attempt to extend the jurisdiction in rem of this Court, which is neither warranted by section 7 nor by the intention with which that section was framed. The damage, the subject of this action, is not damage' within the meaning of section 7." Action dismissed. As the words of section 6 of the Vice-Admiralty Act, under which this suit is brought, are in every respect similar to those of section 7 of the English Admiralty Act of 1861, upon which these two decisions were made, I must hold these cases as conclusive authorities against the claim of the plaintiff in the present action. Holding this view, it is useless to discuss or express any opinion upon the other questions raised in the case. I therefore pronounce for the defendant, with costs. For a citation of cases as to injury to the person, see The Teddington, ante, p. 52. Decree accordingly. It will be noted that counsel for defendants in the principal case raised substantially two ob (1) 12 P. D. 105. 1888 THE ENRIQUE. L 1888 THE jections to the plaintiff's action : (1) That the Court had no jurisENRIQUE. diction in a case of this nature, as the injury complained of was not a damage done by the ship; (2) That the plaintiff was not in the employ of the ship, but in Callaghan's employ, and there was no duty in any way arising from the ship towards the plaintiff. The learned judge decided the case upon the first ground, holding that the Court, under the circumstances of the case, had no jurisdiction, without considering the second point. The judgment is based upon the authority of The Robert Pow, Br. & Lush. 99; and The Victoria, 12 P. D. 105. The Robert Pow was decided by Dr. Lushington in 1863, and it was there held that the Court of Admiralty has not jurisdiction under 3 & 4 Vict., c. 65, sec. 6, or 24 Vict., c. 10, sec. 7, or otherwise, to entertain a claim against a steamtug for damage occasioned to the vessel towed by negligence in towing, if the damage arises not by collision, but by the vessel taking the ground. The same judge, in The Nightwatch, Lush. 542 (1862), held that where, by the improper navigation of a steam-tug towing a vessel, the vessel came into collision with another vessel, and was injured, it was damage done by the steam-tug, and that the owners of the vessel towed could proceed in the Admiralty against the tug. In Williams & Bruce (ed. 1886), p 73, note (m), the learned editors say: "It is difficult to discover the principle of the distinction in the two cases. The cases may be reconciled by supposing that the Court considered that in the one case there was evidence of actionable negligence independently of any breach of contract, and that in the other case the cause of action rested simply upon breach of contract. At the same time it is difficult to see what evidence there was of actionable negligence independently of contract in the case of The Nightwatch. Although in the judgment in The Robert Pow, Dr. Lushington seemed to attach a limited and technical meaning to the word damage used in the statutes, it is submitted that the decision must rest upon some broader principle." In view of recent decisions, The Robert Pow cannot now be looked upon as sound law. In the subsequent case of The Maggie M., post, Watters, J., declined to follow it, saying: "It does not appear to have been followed by any subsequent case." From this it is evident the learned judge subsequently considered the Vice-Admiralty Court had jurisdiction to entertain a suit for damage such as that preferred by the plaintiff in the principal case. In The Ida, Lush. 6 (1860), Dr. Lushington held that the Court "has |