master of the ship at the time of the loss, all the defendants are in that action entitled to the benefit of the limitation given by the statute. By the law of England, the damage to be recovered in an action brought against several persons must be one and the same sum-judgment cannot be given against one defendant for a sum differing from that for which it is given against another.

The Acts do not extend to lighters and gabbets (g).

The fishing stores of a ship employed in the usual manner in the Greenland fishery belonging to the owners of the ship are to be valued as a part of the ship and her appurtenances under these statutes, although they are not usually so estimated in policies of insurance, but made the subject of a separate assurance (h).

* So also the chronometer of a whaler (i).

It has been decided by the Court of Admiralty (k) and by the Court of Queen's Bench, that the unsuccessful party in an action or cause of damage will be liable for the costs of recovering compensation, although the value of the ship and freight should be insufficient to * defray them ().

6. All these statutes are now repealed (m), and it has been in substantial re-enactment of their provisions upon this subject provided (n), that no owner of any sea-going ship or share therein shall be answerable in damages to an extent beyond the value of his ship and the freight (including the value of the carriage of his own goods, ship's hire, beginning in the case of a ship hired for time to be earned within six months of such loss or damage, and passage money) due, or to grow due, in respect of such ship during the voyage which, at the time of the happening of any of the events following, is in prosecution, or contracted for, where, without his actual fault or privity, any damage or loss is caused to any goods, merchandise, or other things whatsoever, on board such ship; or any loss or damage is, by reason of any improper navigation of such ship, caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat.

And it is further, in limitation of the liability of shipowners under the recent Act of Parliament "for compensating the families of persons killed by accidents" (o), by the same statute enacted, "That no owner of such ship or share therein shall be answerable in damages to an extent beyond the value above-mentioned, where, without his actual fault or privity, any loss of life or personal injury is caused to any person carried in such ship, or any loss of life or personal injury is, by reason of any improper navigation of such ship, caused to any person carried in any other ship or boat" (p).

And that in no case where any such liability is incurred in respect of loss of life or personal injury to any passenger, shall the value of

(g) Hunter & Co. v. M'Gowan and Others, 1 Bligh, 573.

(h) Gale v. Laurie and Others, 5 B. & C. 156; 1 Hagg. Ad. Rep. 109.

(i) Langton v. Horton, by Vice-Chan

cel or Wigram, 6 Jurist, 910.

(k) The Dundee, 1 Hagg. 109. The Volant,

1 W. Rob. 389. The John Dunn, 6 Rob. 159.

(1) Ex parte Rayne, 1 Gale & Dav. 374;

1 Q. B. 982.

(m) 17 & 18 Vict. c. 120.

(n) 17 & 18 Vict. c. 104, s. 504.

(0) 9 & 10 Vict. c. 93.

(P) Sec. 504.

any such ship and the freight thereof, be taken to be less than fifteen pounds per registered ton (q).

It was felt on the one hand that to exempt shipowners entirely from liability under Lord Campbell's Act, or from liability beyond the value of ship and freight, would be an encouragement for unscrupulous persons to employ worn-out and inadequately manned vessels in the conveyance of passengers and emigrants; and, on the other, that to subject shipowners guilty of no fault or default to unlimited liability for such calamities, might induce men of property and character to withdraw their fortunes from so great a hazard.

7. To prevent as much as possible of both these evils, and to ensure to persons often of small ability sustaining personal injury, or injury from loss of life, an effectual recourse (the best of all protections) against those, to the improper navigation of whose ships it may be imputable, the new Act empowers the Board of Trade, in all cases of alleged liability in respect of loss of life or personal injury, by warrant sealed with its seal, or signed by one of its secretaries, to require the sheriff to summon a jury, for the purpose of ascertaining "the number, names, and descriptions of all persons killed or injured by reason of any wrongful act, neglect, or default" (r).

At such inquiry the sheriff is to preside, the Board of Trade to be the plaintiff, and the ship-owner, by whom such liability is alleged to have been incurred, the defendant. Either party may require the question to be tried by a special jury; and in England and Ireland, if the Board of Trade requires it, or the defendant requires and the Board of Trade assents to it, the sheriff shall appoint as assessor a barrister of competent knowledge and standing. The costs, to be taxed by a Master of the Superior Courts as between attorney and client in England, and by the Auditor of the Court of Session, as between agent and client in Scotland, are to be borne by the party losing the verdict, and, if the Board of Trade should lose it, they are to be paid out of the Mercantile Marine Fund (8).

The Board of Trade may make any compromise it thinks fit, as to the damages, which are in each case of death or injury to be assessed at thirty pounds, and be the first charge on the aggregate amount for which the owner is liable, and be paid thereout, in priority to all other claims, to her Majesty's Paymaster-General, to be distributed and dealt with by him in such manner as the Board of Trade directs (t).

The Board, in directing the distribution, may, in the first place, deduct and retain any costs incidental thereto; in the next place, it shall direct payment of compensation, not exceeding in any case the statutory amount to each person injured; and as regards the sums. paid in respect of deaths, payment thereof, for the benefit of the husband, wife, parent and child of the deceased, or any of them, in such shares, upon such evidence, and in such manner as it thinks fit (u). Should the amount paid to the Paymaster-General be insufficient to meet the demands upon it, the several claims thereon are to abate proportionally (x).

If after the completion of the inquiry any person estimates the (2) Sec. 504. (r) Sec. 507. (s) Secs. 508, 509. (t) Sec. 509. (u) Sec. 510. (x) Ibid.

death,

damages payable to him in respect of personal injury, or of any at a greater sum than the statutory amount or compromise made by the Board, he will on repaying or obtaining repayment by the Board of Trade to the shipowner of such amount or compromise be at liberty to bring an action against him for damages, which shall be payable out of the residue only of the aggregate amount for which the owner is liable, after deducting all sums paid to the Paymaster-General; and if the damages recovered by such person do not exceed double the statutory amount, he shall pay to the defendant all the costs of the action as between attorney and client in England and Ireland, and in Scotland as between agent and client (y).

In cases where several claims are made or apprehended against an owner for loss of life, personal injury, or loss or damage to ships, boats, or goods, the Court of Chancery in England and Ireland, and the Court of Session in Scotland, and any competent Court in a British possession, are empowered to entertain proceedings at the suit of such owner for the purpose of determining the amount of his liabilities (z), and for the distribution rateably of such amount, and to stop all actions and suits pending in any other Court in relation to the same subject-matter.

The jurisdiction of the Court of Chancery under this section is simply to determine the amount of the shipowner's liability, and distribute that amount among the several claimants; not to decide the question of liability or non-liability.

It has been held that a shipowner who applies to a Court of Equity under this section must, in order to obtain its assistance, admit that he has incurred some liability (a).

All sums of money paid for or on account of any loss or damage, in respect of which the liability of owners is limited by Part IX. of 17 & 18 Vict. c. 104, and all costs incurred in relation thereto, may be brought into account amongst part-owners of the same ship in the same manner as money disbursed for the use thereof (b).

These provisions are the result of great consideration, and may probably be thought to have effected as reasonable an adjustment between the owners of sea-going ships and persons sustaining damage from personal injury or loss of life, by reason of the improper navigation of them, as the nature of the case admits.

8. And it is enacted, that nothing in the ninth part of the Act (relating to the liability of shipowners) shall be construed to extend to any British ship, not being a recognised British ship within the meaning of the Act, or to take away the liability to which any master or seaman, being also owner or part-owner of the ship to which he belongs, is subject in his capacity as master or seaman.

It is also enacted, that 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 goods, arising on distinct occasions, to the same extent as if no other loss, injury, or damage had arisen (c).

(y) Sec. 511.

(z) Sec. 514.

(a) Hill v. Audus, 3 W. R. V., C. W.

230, 24 L. J. 229, Ch.

(b) Sec. 515.

(c) Sec. 516.

CHAPTER VIII.

OF THE GENERAL DUTIES OF THE MERCHANT; AND HEREIN,

(Ss.) 1. How he is bound to use the Ship.

2. Compensation to be made by him for not supplying Cargo.
3. Of Primage and Average.

1. THE general duties of the merchant (those only excepted which relate to the payment of freight and of gross average, and which will form the subject of distinct chapters) are comprised in a very narrow compass. The hirer of anything must use it in a lawful manner, and according to the purpose for which it was let. The merchant must lade no prohibited or uncustomed goods, by which the ship may be subjected to a detention or forfeiture (a). In general, even in the case of affreightment by charter-party, the command of the ship is reserved to the owners or the master appointed by them, and therefore the merchant has not the power or opportunity of detaining the ship beyond the stipulated time, or employing it in any other than the stipulated service; but by the charter-parties under which ships are let to the East India Company, the command and disposal of the ship are reserved to the Company, and the master, although appointed by the owners, is bound to obey the orders of the Company at home, and of their factors and servants abroad; and it is always stipulated, that nothing shall be paid by the Company for freight or demurrage, unless the ship returns home in safety (b). Yet, in a case where the Company detained a ship so long in India that she became unfit for the voyage home, and was disposed of there, so that, by reason of the particular stipulations, the owners could sustain no action at law upon the contract, a Court of Equity ordered the Company to make a proper allowance for the actual and probable earnings and the value of the ship (c). So where a ship, hired by the Company, to be employed according to the then usual terms of their charter-parties, in trade and warfare, was sent upon a service of observation and discovery, to explore the passage to the eastward of the Isle of Banca, and there struck on a rock, and was lost, and the owners brought an action against the Company for thus exposing the ship to danger in a service not warranted by the charter-party without their knowledge or consent, Lord Kenyon, before whom the cause was tried, declared himself to be of opinion, that the action was proper in point of general principle, but the plaintiffs failed in their suit, because it appeared that

(a) Roccus, not. 85. Dig. 19, 2, 61, 1. French Ordinance, liv. 3, tit. 3, Fret, art. 9. (b) See the clauses cited in Hotham v. East India Company, ante, ch. 1, s. 8, of this part, p. 199.

(c) Edwin and Others v. East India Company, 2 Vern. 210.

the Company's intention to employ the ship in this service was, before her departure from England, made known to the person who managed the ship on behalf of the owners, and not objected to on their part (d).

2. Some of the ancient maritime codes and more modern foreign ordinances (e) have fixed the payment to be made by the merchant who, having taken a ship to freight, declines to lade her in pursuance of his agreement, or who, before the commencement or during the course of the voyage, withdraws his goods from the ship, or, having hired a ship to go to a distant port, and engaged to furnish a cargo homeward, fails to do so, whereby the ship is forced to return empty; and have decided that in some instances the whole, in others a moiety of the sum that would have become due as freight shall be paid as compensation to the owners. But in all these cases the law of England leaves the amount of the compensation to be ascertained by a jury, if the parties cannot agree about it; and a jury will form their estimate upon a consideration of all the circumstances of the case, and of the real injury sustained by the owners, which cannot be properly settled by positive rules.

3. We have seen by a copy of the bill of lading (ƒ), that the master undertakes to deliver the goods upon the payment of freight with primage and average accustomed.

The word primage denotes a small payment to the master for his care and trouble, which he is to receive to his own use, unless he has otherwise agreed with his owners (g). This payment appears to be of very ancient date, and to be variously regulated in different voyages and trades. In the "Guidon," it is called "la contribution des chausses ou pot de vin du maitre." It is sometimes called the master's hat

money.

It has been held that primage is primarily payable to the master, and that he may maintain an action for it although the freight has been separately adjusted. If, however, by the contract between the owner and the master, the master is not to receive primage, he can maintain no action for it; and cases may also arise when a contract between the owner and shipper, which excludes primage, may be brought to the knowledge of the master, and prevent him from having any right to claim it (h).

(d) Lewin and Others v. India Company, Peake's cases at Nisi Prius, p. 241. It was an action upon the case, and the plaintiffs were nonsuited; they afterwards brought another action in the Court of Common Pleas, which was tried before Lord Eldon, at the Sittings after Hilary Term, 1800, and were again nonsuited on the same ground. The terms of the charter-parties were afterwards altered, and the ships hired to be employed in trade and in warfare, and on any other service whatsoever.

(e) Ordin. of the Hanse Towns, art. 11. French Ordin. liv. 3, tit. 3, Fret, arts. 3, 6, 8, and 9, and Valin thereon. Guidon, ch. 9, art. 11. Code de Commerce, arts. 288, 201. (f) Ch. 4, of this part, sec. 2.

Scott v. Miller, 5 Scott, 15.

(h) Best v. Saunders, 1 M. & M. 208. Where the bill of lading expressed that the goods were to be delivered to the consignee, "he paying freight for the same as per charter-party, with primage and average accustomed," it was held that the master was entitled to receive primage from the consignee, although the contract between the shipowner and the agents of the consignee (there being no charter-party) was for 37. per ton freight, and did not notice primage; and although the master contracted with the shipowner to receive a sum certain "in lieu of all cabin and other allowances." -Ibid. See also Charleton v. Cotesworth, R. & Mood. 175.