53 Geo. III. c. 159.

the previous Act was extended to cases of theft by persons other than the crew, and to cases of loss by fire (s). Limitation of liability in case of collision was first created by 53 Geo. III. c. 159. This Act, after reciting that it was expedient to encourage the owning of British ships (†), fixed the limit of shipowners' liability for damage to other ships and to cargo on board either of two ships in collision at the value of the ship sued and the freight she was earning or under contract to earn. The Act was confined to sea-going British ships, and under it questions arose as to the amount of the shipowners' liability when freight had been paid before the collision (u), or never earned (x), as to the time at which the ship's value was to be taken for the purpose of the Act (y), and as to the ship's appurtenances which were to be included in the valuation (≈). The preamble shows that limitation of liability was founded upon considerations of policy and not of justice. "The principle of limited liability is that full indemnity, the natural right of justice, shall be abridged for political reasons" (a). As to the justice of the Acts limiting liability opinions have differed widely (b); and it is possible

(s) Hunter v. McGowan, 1 Bligh, N. S. 573, was a decision that this Act did not apply to inland craft, such as a Clyde gabbert.

(t) There does not appear to have been any considerable discussion in Parliament upon the principle of either this or the subsequent Acts limiting shipowners' liability. See Commons Journals, vol. 68, p. 670; 133 Hansard's Parl. Deb. pp. 574 seq. Upon the Act of 1862 there was some discussion of details, but little was said as to the principle or policy of the Act: Hansard, vol. 165, p. 1932; vol. 166, pp. 2217 seq., vol. 167, pp. 735, 750; vol. 168, pp. 1 seq.

(u) Wilson v. Dickson, 2 B. & Ald. 2.

(x) Cannan v. Meaburn, 1 Bing. 465.

(y) Brown v. Wilkinson, 15 M. &

W. 391.

(z) The Dundee, 1 Hag. Ad. 120; Gale v. Laurie, 5 B. & Č. 156; The Triune, 3 Hag. Ad. 114, infra. p. 188, were decisions under this Act.

(a) Per Dr. Lushington, The Amalia, Moo. P. C. C. N. S. 471, 473.

(b) "An Act sufficiently tyrannical as it is," per Brett, L.J. The Ettrick, 6 P. D. 127, 136. Similar opinions are expressed in The Northumbria, L. R. 3 A. & E. 6, 13; Chapman v. Royal Netherlands Steamship Co., 4 P. D. 157, 184; The Andalusian, 3 P. D. 182, 190; and per Dr. Lushington, supra. A different view was taken by Mellish, L.J., in London & S. W. Rail. Co. v. James, L. R. 8 Ch. 241, 252; and by Butt, J., in The Warkworth, 9 P. D. 20, 21.

that the construction of the Acts has not been unaffected by these opinions (c); but there is no reason why they should be construed otherwise than according to the fair and natural meaning of their words (d).

505.

By 17 & 18 Vict. c. 104, ss. 504, 505, the same limit 17 & 18 Vict. was fixed for damages recoverable for loss of life or perc. 104, ss. 504, sonal injury, with a provision that in such cases the value of the ship should be taken at not less than 157. per ton (e); and the statutory limitation was extended to foreign as well as British ships. Under all these Acts the value of the ship and freight at or immediately before the collision had to be ascertained, a fruitful source of litigation and expense.

c. 63, s. 54.

To obviate this (f), and also in order that bad and inferior ships should not have an advantage, in case of collision, over good and valuable ships (g), 25 & 26 Vict. 25 & 26 Vict. c. 63 was passed. That Act (sect. 54) struck a rough average value for all ships at 157. or 87. per ton, the valuation to be at the higher or lower rate according as the collision was accompanied by loss of life or personal injury or not. In 1894 it was repealed, but in substance re-enacted, by 57 & 58 Vict. c. 60, s. 503, as follows:

(1.) The owners of a ship, British or foreign, shall not, 57 & 58 Vict. where all or any of the following events take place without c. 60, s. 503. their actual fault or privity; (that is to say),

(a) Where any loss of life or personal injury is caused
to any person being carried in the ship;

(c) See per Abbott, C.J., Gale v. Laurie, 5 B. & C. 156, 163; per Brett, L.J., 4 P. D. 184; 6 P. D. 136; per Dr. Lushington, The Benares, 14 Jur. 581.

(d) See per Butt, J., The Wark worth, 9 P. D. 20.

(e) Nixon v. Roberts, 1 J. & H. 739; Leycester v. Logan, 4 K. & J. 725; Dobree v. Schroder, 6 Sim. 291; 2 M. & Cr. 489; Grainger v.

Martin, 2 B. & S. 456; African
Steamship Co. v. Swanzy, 2 K. & J.
660, are decisions under this Act.

(f) See per Lord Blackburn, 7
App. Cas. 811, 815.

(g) Hansard, Parl. Debates, vol. 165, p. 1932, Mr. Milner Gibson's speech on introducing the bill; Lindsay's History of Merchant Shipping, vol. 3, p. 408.

57 & 58 Vict. c. 60, s. 503.

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

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

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

be liable in damages beyond the following amounts; (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 exceeding fifteen pounds for each ton of their ship's tonnage; and

(ii.) In respect of loss of, or damage to, vessels, 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 steamship shall be her gross tonnage without deduction of engine room; and the tonnage of a sailing ship shall be her register 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;

(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 purposes 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 surveyorgeneral 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 upon distinct occasions to the same extent as if no other loss, injury, or damage had arisen.

measurement.

The enactments relating to tonnage measurement are Tonnage 57 & 58 Vict. c. 60, ss. 77-87. In order to understand the cases decided upon the corresponding sections of former Acts, it will be convenient to summarize these sections. Section 77 gives the rules for measuring a ship's "tonnage' for the purpose of ascertaining her "register tonnage.' Section 78 provides for the deduction, in the case of steamships, of the space occupied by the machinery from her

66

gross tonnage," in order to ascertain her "register tonnage." Section 79 provides for the deduction, in all ships, of (1) spaces used for the accommodation of master or crew; (2) spaces used for the working of capstan, helm, or anchor, for the keeping of charts, signals, and other instruments of navigation, or boatswain's stores (hereafter called navigation spaces); (3) spaces occupied by the donkey engine and boiler in certain cases; and, in case of a sailing ship, spaces used for storing of sails. None of these spaces. can be deducted, unless certain provisions as to certificates have been complied with. Section 80 makes special provision for screw steamships measured before 26th August, 1889. Section 81 provides for ships having a double bottom; the words (taken from 52 & 53 Vict. c. 43, s. 5)

that the ship's depth "shall be taken to be the upper side of the inner plating of the double bottom, and that upper side shall, for the purposes of measurement, be deemed to represent the floor timber" mentioned in the rules for measuring which are scheduled to the Act, have been the subject of a decision (h). Section 82 provides that the tonnage measured in accordance with the Act and entered on the register shall be the "tonnage" of the ship, until re-measurement. Section 83 is as to fees. Section 84 provides that, upon an Order in Council being made in that behalf, the ships of any foreign country shall, for the purposes of the Act, be taken to be of the tonnage specified in their certificates of registry; with power for her Majesty to revoke such Orders and to order re-measurement of foreign ships in certain cases. Orders in Council of the following dates were made under former Acts with respect to the ships of the countries named; and under sect. 745 of the Merchant Shipping Act, 1894, these Orders are still in force :

America, United States, 30th July, 1868, 3rd October, 1895; Austria, 19th August, 1871; Belgium, 17th October, 1884; Denmark, 29th February, 1868, 30th December, 1878, and 21st November, 1895; France, 5th May, 1873; Germany, 23rd July, 1889, and 22nd February, 1896; Greece, 14th August, 1879; Hayti, 3rd May, 1882; Italy, 30th September, 1873; Japan, 27th January, 1885; Netherlands, 3rd May, 1888; Norway, 17th May, 1876, and 2nd February, 1884; Russia, 20th November, 1880; Spain, 17th March, 1875, and 5th August, 1875; Sweden, 17th March, 1875, 3rd May, 1882, and 18th August, 1882.

Section 85 provides that dues payable on a ship's tonnage shall be paid in respect of space occupied by deck cargo; but it does not appear that the owner's liability

(h) The Zanzibar, (1892) P. 233.