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the liability of a shipowner upon contracts entered into by the master as his agent having always been, as it is at the

present day, unlimited. Analogy of More than one writer (k) has pointed out the analogy noxal action

between the law which limits shipowners' liability to the deditio. value of ship and the noxal action—noxæ deditioof the

Roman law. The law of deodand has also been thought to be founded on the same idea—that which personifies the inanimate object (1) which does the injury and identifies it with the actual wrong-doer. In the face of the express provisions of the Code of Oleron and other sources of English maritime law, which require the wrong-doer to make full compensation to the sufferer in a collision, there is difficulty in accepting this view as to the origin of

limited liability Connection The principle of unlimited liability, which seems to have limitation of been adopted from the civil law into the medieval codes, liability and

was to some extent modified by the rule of division of loss division of loss.

in the case of inevitable accident. And in some of the later codes there are traces of the rule of division of loss being extended to cases of collision by negligence (m). We have seen in a former chapter that the rule as to division of loss was probably applied somewhat loosely, and without much discrimination as to whether the collision was due to negligence or not. In this way losses by collision were doubtless distributed, and the shipowner's liability was in a sense limited; but the recognition of the principle of limitation of liability to the value of ship and

freight belongs to a later date. Connection

In the case of damage done by a ship belonging to between limited foreigners resident abroad, and where service of a writ of liability and

summons cannot be effected, the damages recoverable are, arrest of the ship.

(k) See Bynkershoek, Quæst. Jur. (m) See Droit Maritime de la Priv. 1. 4, c. 20; Holmes on the Suède, 3 Pardess. 129, 173, 174 ; Common Law, p. 30.

Dantzic Sea Laws, Art. 51, 4 Twiss' (1) See above, pp. 75 seq., as to Black Book, 349. personification of the ship.

in practice, limited to the value of the ship and freight, the res arrested by the Admiralty Court. The statutory limit of liability is doubtless connected with this fact; but the arrest of the ship was adopted, in the first instance, in order to compel her owners to appear, and not because their liability was limited to the value of the ship (n).

The history of the singular legislation in this country History of which prevents the sufferer in a collision between ships


legislation from recovering damages beyond a sum fixed by reference upon the to the size of the instrument with which the damage is subject. done, is as follows: Until the year 1734, by the common law of England and by the maritime law as administered in the Admiralty Court of this country, the liability of shipowners for damages by collision was, as has been stated above (0), unlimited. In that year an Act, 7 Geo. II. 7 Geo. II. c. 15, was passed limiting shipowners' liability for loss of cargo by theft of master or crew to the value of the ship and freight (). This Act was passed in consequence of the decision in Boucher v. Lawson (m), by which the shipowners were held liable for loss of a cargo of bullion taken on board in Portugal and afterwards stolen by the master. The fact that Holland, and other maritime nations of Europe, had previously passed similar laws

c. 15.

(») The Bold Buccleugh, 7 Moo. P. C. C. 267, 283; and supra, p. 80. The dictum of Parke, B., to the contrary in Brown v. Wilkinson, 15 M. & W. 391, is probably incorrect.

() See supra, p. 161, note (a).

(p) Sutton v. Mitchell, 1 Ï. R. 18, is a decision under this Act, that the owners were not liable beyond the statutory limit for a robbery of cargo in which one of the crew was concerned.

() Cas. temp. Hardw. 86; see per Buller, J., Yates v. Hall, 1 T. R. 75, 78. Boucher v. Lawson is clearly the case referred to in the petition of shipowners set out in the Journals of the House of Commons, Sess. 1733, p. 277. The

petitioners, after referring to the
decision, complain that they, “when
they became owners of ships, did
not apprehend themselves exposed
to such hazard, or liable as owners
to any greater loss than that of the
ships and freight ; and of the in-
supportable and unreasonable hard-
ships to which our laws in this case
subject them; and to which no
owners of ships are exposed in other
trading nations ;
sent to the House “that, unless
some provision be made for their
relief, trade and navigation will be
greatly discouraged, since owners
of ships find themselves, without
any fault on their part, exposed to
ruin," &c. &c. &c.

and they repre

c. 86.

c. 159.

for the protection and encouragement of their shipping,

appears to have influenced the Legislature in passing the 26 Geo. III. measure (r). By 26 Geo. III. c. 86, the relief afforded by

the previous Act was extended to cases of theft by persons other than the crew, and to cases of loss by fire (s). Limi

tation of liability in case of collision was first created by 53 Geo. III. 53 Geo. III. c. 159. This Act, after reciting that it was

expedient to encourage the owning of British ships (1), 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 appur

tenances which were to be included in the valuation (-). 17 & 18 Vict.

By 17 & 18 Vict. c. 104, ss. 504, 505, the same limit c. 104, ss. 504, 505.

was fixed for damages recoverable for loss of life or personal injury, with a provision that in such cases the value of the ship should be taken at not less than 15l. per ton (a); 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. To obviate this (6), and also in order that bad and 25 & 26 Vict.

(r) See per Lord Stowell, The Dundee, Hag. Ad. 109, 121 ; per Abbott, J., Gaie v. Laurie, 5 B. & C. 156, 163; infra, p. 169; per Lord Blackburn, 7 App. Cas. 812; and see supra, p. 163. The Commons Journals for the year 1733 contain several petitions from shipowners for relief in other matters. Another Act of the same year53 Geo. 3, c. 87—was passed for their relief. As to foreign law on the subject at the present day, see the note at the foot of this chapter, infra, p. 181.

(8) Hunter v. AcGowan, 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. & C. 156; The Triune, 3 Hag. Ad. 114, infra, p. 172, were decisions under this Act.

c. 63, s. 54. inferior ships should not have an advantage, in case of collision, over good and valuable ships (c), the existing Act, 25 & 26 Vict. c. 63, was passed. That Act (s. 54) struck a rough average value for all ships at 151. or 81. 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. It repealed (s. 2) 17 & 18 Vict. c. 104, s. 504, and enacted (s. 54) as follows:

“The owners of any ship, whether British or foreign,
shall not, in cases where all or any of the following events
occur without their actual fault or privity, that is to say:
“(1) Where any loss of life or personal injury is caused

to any person being carried in such ship;
(2) Where any damage or loss is caused to any goods,

merchandize, or other things whatsoever on board

any such ship;
" (3) Where any loss of life or personal injury is, by

reason of the improper navigation of such ship as
aforesaid, caused to any other ship or boat, or to
any goods, merchandize, or other things whatso-

ever on board any other ship or boat;
be answerable in damages in respect of loss of life or per-
sonal injury, either alone or together with loss or damage

(a) Nixon v. Roberts, 1 J. & H. 739; Leycoster v. Logan, 4 K. & J. 725; Dobree v. Schroder, 6 Sim, 291; 2 M. & Cr. 489 ; Grainger v. Jartin, 2 B. & S. 456 ; African Steamship Co. v. Swanzy, 2 K. & J. 660, are decisions under this Act.

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

(c) 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.

to ships, boats, goods, merchandize, or other things, to an aggregate amount exceeding fifteen pounds for each ton of their ship’s tonnage ; nor in respect of loss or damage to ships, goods, merchandize, or other things, whether there be in addition loss of life or personal injury or not, to an aggregate amount exceeding eight pounds for each ton of the ship's tonnage ; such tonnage to be the registered tonnage in the case of sailing-ships, and in the case of steam-ships the gross tonnage, without deduction on account of engine-room.

“In the case of any foreign ship which has been or can be measured according to British law, the tonnage as ascertained by such measurement shall, for the purposes of this section, be deemed to be the tonnage of such ship.

“In case of any foreign ship which has not been and cannot be measured under British law, the surveyorgeneral of tonnage in the United Kingdom, and the chief measuring officer in any British possession abroad, shall, on receiving from or by direction of the Court hearing the case such evidence concerning the dimensions of the ship as it may be found practicable to furnish, give a certificate under his hand, stating what would, in his opinion, have been the tonnage of such ship if she had been duly measured according to British law; and the tonnage so stated in such certificate shall, for the purposes of this

section, be deemed to be the tonnage of such ship.” Foreign ships' By a subsequent section (s. 60) the Act provides that toupage.

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. Orders in Council of the following dates have been made with respect to the ships of America, United States, 30th July, 1868; Austria, 19th August, 1871; Belgium, 17th October, 1884; Denmark, 29th February, 1868, 30th December, 1878; France, 5th May, 1873; Germany, 23rd July, 1889; Greece, 14th

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