the following events occur without their actual fault or privity (p):— (1.) Where any loss of life or personal injury is caused to For loss of any person being carried in the ship (9); (2.) Where any damage or loss is caused to any goods, mer chandize or other things whatsoever on board the ship; (3.) Where any loss of life or personal injury is by reason of the improper navigation (") of the ship caused to any person carried in any other ship or boat; life or personal injury. (4.) Where any loss or damage is by reason of any such For injury to improper navigation caused to any other ship or boat (s), goods or or to any goods, merchandize or other thing whatsoever beyond the following amounts: Where loss of life or personal injury has occurred, either alone or together with loss or damage to ships, boats, goods, merchandize or other things, the limit of the owner's liability is 157. for each ton of the ship's tonnage; and where the injury complained of is in respect of loss or damage to ships, goods, merchandize or other things, the limit is 87. for each ton (†). The tonnage upon which the extent of liability is in these cases to be calculated is, in the case of sailing ships, the registered tonnage, and in the case of steam ships, the gross tonnage, (p) The fact that the collision happened by the fault of the master, whose name was on the register as part owner of the ship, but who had parted with his shares before the collision by an unregistered bill of sale, does not defeat the right of his transferee and the other owners to have their liability limited; The Spirit of the Ocean, Br. & L. 151; see also The Obey, L. R., 1 A. & E. 102; Kidston's Executors v. M'Arthur's Executors, 5 Sess. Ca. (4th series), p. 936. (2) This limitation applies to claims under Lord Campbell's Act; Glaholm v. Barker, L. R., 2 Eq. 598; 1 Ch. 223. (r) As to the meaning of these words see Good v. The London Steam Ship-owners Association, L. R., 6 C. P. 563. (8) Damage to a vessel being towed, caused by the improper navigation of the tug, is within this section; Wahlberg v. Young, 45 L. J. 783. M.P. (t) The M. S. Act, 1862, s. 54. In construing these provisions it has been held that the damages are to be ascertained in the same way as if the liability of the owners were unlimited, and then the sum for which the owner is liable is to be applied in payment of the damages when so ascertained and distributed rateably. Glaholmv. Barker, L. R., 2 Eq. 598; 1 Ch. 223. In a case where two ships, the V. and the S., came into collision, and both were held to blame, the V. had sustained damage the half of which exceeded the statutory limit of the liability of the S., and the half of the damage sustained by the S. did not exceed the statutory limit of the liability of the V.; it was held, that the owner of the S. might claim the benefit of limited liability and yet recover the half of the damages sustained by the S. against the owner of the . without deduction. Chapman v. The Royal Netherlands Steam Co., Weekly Notes, 29th March, 1879. G ships. Ships to which pro without deduction on account of engine room (u). In the case of foreign ships which have been or can be measured according to British law, the act provides that the tonnage, as ascertained by such measurement, is to be deemed, for these purposes, the tonnage of the ship; and that in the case of other foreign ships, which have not been and cannot be measured under British law, the tonnage is to be ascertained by a certificate from the surveyor general of tonnage in the United Kingdom, or from the chief measuring officer in any British possession abroad (r). Insurances effected against any of the events enumerated in the above section, and occurring without the actual fault or privity of the shipowner, are valid (y). By sect. 506 of the Merchant Shipping Act, 1854, it is provided that the owners of every sea-going ship shall be liable in respect of every loss of life, personal injury, loss of or damage to goods as is mentioned above, which may arise on distinct occasions, to the same extent as if no other loss, injury or damage had arisen (≈). The owners are liable to pay interest beyond the amount fixed by statute (a). If the ship injured is in ballast, the interest is calculated from the date of the collision (b). The provisions of the Merchant Shipping Act, 1854, limiting tection of sta- the liability of owners, were declared by sect. 516 not to extend tutes extend. to British ships not being recognized British ships within the meaning of that statute (c). As the limitations of the owner's liability where a fire occurs on board ship, and where gold, silver, watches, jewels and precious stones are stolen or em (u) The provisions for the deduc- (a) The M. S. Act, 1862, s. 54. () Where one ship causes damage to the proper officer of customs under s. 16 of the Passengers Act, 1855, is, in the absence of proof to the contrary, sufficient proof that the persons in respect of whose death the proceeding is instituted were passengers on board of the ship at the time of their deaths; the M. S. Act, 1862, s. 56. (a) The Northumbria, L. R., 3 A. & E. 6; Smith v. Kirby, 1 Q. B. D. 131. (b) Straker v. Hartland, 2 H. & N. 570; 34 L. J., Ch. 122. (c) See Cope v. Doherty, 4 K. & J. 357; 2 De G. & J. 614; and ante, p. 3. No ship required to be registered is to be recognized as a British ship unless registered. See the M. S. Act, 1854, s. 19. See also The Andalusian, 3 P. D. 182. bezzled, still depend upon sect. 503 of that act, the statutory protection does not extend, in those cases, to foreign ships. But we have already seen (d) that the provisions limiting the liability of shipowners, which are contained in the Merchant Shipping Act, 1862, mentioned above (e), are applicable not only to recognized British ships but also to all foreign ships. These limitations of the owner's responsibility rest, in England, upon the authority of the statute law only, for the common law, like the civil law in this respect, held the shipowner to be responsible in all these cases. By the general law, however, of the maritime nations of continental Europe, the liability of owners for the wrongful acts of the master is limited to the value of the ship and freight, and they may discharge themselves by abandoning them to the creditor (f). under Pilot We shall see in subsequent Chapters how far the responsi- Liability bility of owners is limited by the express terms of the ordinary Acts, &c. contract for carriage, and by the operation of the provisions of the Merchant Shipping Act, 1854, relating to pilots; and also what bearing the statutes to which we have referred have upon questions of collision (g). Trade in quiry. In cases of loss of life or personal injury of the class men- Board of tioned above, the Merchant Shipping Act, 1854, empowers the Board of Trade to institute an inquiry, and provides in detail for the recovery of damages before the sheriff and a jury (), and until the completion of such inquiry, or the refusal of the Board to institute it, no action can be maintained (i). It was expressly provided by the Merchant Shipping Act, 1854, that the provisions in the ninth part of the act (which refer, as is mentioned above, to the liability of shipowners) should not lessen or take away any liability to which any master (d) Ante, p. 80. (e) Per Abbott, C. J., in Gale v. Laurie, 5 B. & C. 164; per Lord Stowell, in The Dundee, 1 Hagg. 121. It is the same in America, 3 Kent's Comm. 217. (f) See Emérigon, Contrats à la Grosse, c. 4, s. 11, where the early maritime laws are cited. Boulay Paty, Cours de Droit Commercial Maritime, vol. i. tit. 3, sect. 1 (Ed. 1834); Code de Comm. art. 216. See Lloyd v. Guibert, L. R., 1 Q. B. 115. (g) See post, Chap. VI., CONTRACT OF AFFREIGHTMENT; Chap. V., PILOT; Chap. IX., COLLISION. (h) The provisions of the act in this respect will be found in ss. 507-515. See Appendix, p. cxlviii. They have seldom, if ever, been put in force. Of late years it has been the universal practice of the Board of Trade to refuse to take proceedings under these sections. () The M. S. Act, 1854, s. 512. Jurisdiction respect to or seaman, being also owner or part owner of the ship to which he belonged, was subject in his capacity of master or seaman (7); this stipulation is not repeated in the Merchant Shipping Act, 1862, which now defines, as we have seen, the liability of shipowners in cases of loss of life, personal injury, and loss or damage to goods. But as the section of the Merchant Shipping Act, 1854, which contains this provision, is not repealed by the later act, and the later act is (by sect. 1) to be construed with and as part of the earlier act, it is doubtless intended that this limitation to the protection afforded to shipowners shall apply to their liability, as defined in the Merchant Shipping Act, 1862. The powers given by sect. 514 of the Merchant Shipping of Courts with Act, 1854, to the Court of Chancery, enable that Court to deterlimitation and mine the amount of a shipowner's liability, and to distribute that amount among the several claimants, and to stop all actions relating to the same subject matter (m). distribution of amount. By the Common Law Procedure Act, 1860 (n), the Superior Courts of Common Law, and any judge thereof, may, upon summary application by rule or order, exercise such and the like jurisdiction as may be exercised by the Court of Chancery, under the provisions of the ninth part of the Merchant Shipping Act, 1854. The Admiralty Court Act, 1861, (24 Vict. c. 10, s. 13,) further provides that, whenever any ship or the proceeds thereof are under the arrest of the Admiralty Court (0), it shall have the same powers as are conferred upon the Court of Chancery by the ninth part of the Merchant Shipping Act, 1854. The Court of Chancery decided that the above-mentioned section of the Merchant Shipping Act conferred upon it power simply to determine the amount of the liability of the shipowner, and that as it had no jurisdiction to determine the question whether the shipowner was or was not liable, it would (1) The M. S. Act, 1854, s. 516. (n) The 23 & 24 Vict. c. 26, s. 35. for the limitation of their liability, and paid into the registry of the Court a sum of money in lieu of bail, the Court of Exchequer granted a prohibition, holding that the vessel or proceeds were not under arrest, because the money paid in did not represent the vessel and was not paid in to save the vessel from arrest; James v. London and South Western Railway Co., L. R., 7 Ex. 187, on appeal, 287. not grant relief unless the shipowner admitted his liability. But it was afterwards held in the Admiralty Court, that it is not requisite that the owner of a ship preferring a claim in that Court to limited liability, should begin by acknowledging that his vessel is to blame, and it is now the practice in the Admiralty Division to allow a shipowner to institute a suit for limitation of liability, without requiring him to admit his liability (p). OWNERS AS REM. There are some claims which may be enforced in Courts LIABILITY OF having admiralty jurisdiction by proceedings against the ship, DEFENDANTS her cargo, and freight, or against the ship only, or against the IN ACTIONS IN cargo only. These proceedings are commonly called proceedings in rem (q), and are commenced by process served upon the res (1), and are usually followed up by the arrest of the res. This process is considered to be notice to all persons having any interest in the res, and all such persons are therefore entitled to appear as defendants, and are concluded by the judgment of the Court, at least to the extent of their interest in the property proceeded against (s). lien. Proceedings of this nature were originally founded, and still Maritime to a great extent depend, upon a privilege called a maritime lien, which by maritime law is established in favour of certain classes of persons to have their demands against the owners of the res satisfied out of the proceeds of the res in priority to other claimants (t). Where a maritime lien attaches it travels with the property into whosoever possession it may come, and when enforced by legal process relates back to the period when it first attached (u). If enforced with reasonable diligence it will hold good against the claim of a bona fide purchaser without notice (r). (p) Hill v. Audus, 1 K. & J. 263; 24 L.J., Ch. 229; The Amalia, Br. & L. 151. The case went on appeal to the Privy Council, and the decision below was affirmed; but the objection to the decision below on the point now in question seems not to have been insisted upon on the argument of the appeal. See The Sisters, 1 P. D. 281. See also Miller v. Powell, 2 Sess. Ca. (4th series), 976. But see the judgment of Kelly, C. B., in James v. London and South Western Railway Co., L. R., 7 Ex. at page 196. (1) The Bold Buccleugh, 7 Moo. P. C. C. 167. (r) Supreme Court of Judicature Act, 1875, Schedule, Order IX. sect. 10. (8) The Eliza Cornish, 1 Spinks, 58; Castrique v. Imrie, L. R., 4 H. L. 414. (t) The Two Ellens, L. R., 4 P. C. 161; The Pieve Superiore, L. R., 5 P. C. 482. (u) The Bold Buccleugh, 7 Moo. P. C. C. 267. (x) The Nymph, Swa. 86; The Charles Amelia, L. R., 2 A. & E. 330. |