Imágenes de páginas

August, 1879; Hayti, 3rd May, 1882; Italy, 30th September, 1873; Japan, 27th January, 1885; Netherlands, 3rd May, 1888; Norway, 17th May, 1876, 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 (c).

The preamble of 53 Geo. III. c. 129, shows that the Justice of Act policy of the Acts limiting owners' liability was delibe- questioned. rately adopted by the Legislature with a view to encourage shipping (d). But the justice of the Acts has often been called in question (e); and the opinion has been expressed that, interfering as they do with the common law right of the injured person to recover full damages, they are to be construed “strictly,” that is to say, in such a way as to abridge as little as possible the common law right of the sufferer ($). But there is no valid reason why the Act should be read otherwise than according to the fair and natural meaning of its terms; and this was the view taken by Butt, J., in the most recent case (9).

This Act (25 & 26 Vict. c. 63, s. 54) applies in every It applies to case of collision, whether the ships are both British or both in all waters. foreign, or one British and one foreign ; whether the collision occurs in British or in foreign waters or on the high seas (h); and whether the action is in Admiralty or at

(c) See 52 & 53 Vict. c. 43, s. 6.

(d) Per Dr. Lushington in The Amalia, 1 Moo. P. C. C. N. S. 471, 473, “ The principle of limited liability is that full indemnity, the natural right of justice, shall be abridged for political reasons.See further as to the policy of the Act the note at the foot of this chapter.

(@) See 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; The Ettrick, 6 P. D. 127, 136, “an Act sufficiently tyrannical as it is,” per Brett, L. J. This opinion has not always been shared,

see per Mellish, L. J., 8 Ch. D. 252; per Butt, J., 9 P. D. 21.

(f) See per Abbott, C. J., in Gale v. Laurie, 5 B. & C. 156, 163, “ Their effect, however, is to take away or abridge the right of recovering damages enjoyed by the subjects of this country at the common law; and there is nothing to require a construction more favourable to the shipowner than the plain meaning of the words import ;” and per Brett, L. J., 4 P. D. 184; 6 P. D. 136; per Dr. Lushington in The Benares, 14 Jur. 581.

(9) The Warkworth, 9 P. D. 20.

() The Amalia, 1 Moo. P. C. C. N. S. 471; Br. & Lush. 151.

common law (9). Some British colonies have passed laws which differ in terms and in effect from the Imperial

Act (1.).

Tonnage measurement.

The enactments relating to tonnage measurement are 17 & 18 Vict. c. 104, ss. 20—29; 30 & 31 Vict. c. 124, 8. 9; 34 & 35 Vict. c. 110, s. 12; 52 & 53 Vict. c. 43 (i).

Questions have arisen as to whether crew spaces are to be included in the tonnage which is the measure of liability. It seems to be decided that such spaces, when not on the upper deck, must in all cases be included, unless the requirements of the Merchant Shipping Act, 1867 (30 & 31 Vict. c. 124), s. 9, have been complied with (j). As these include inspection by the Board of Trade, foreign ships can seldom deduct such spaces. It further seems that the Act of 1867 did not affect the right to deduct crew spaces on the upper deck (k), under sects. 21 (3), and 22 (2) of the Merchant Shipping Act, 1854. The provisions of those sections permitting the deduction have, however, been repealed by sect. 2 of the Merchant Shipping (Tonnage) Act, 1889 (?), subject, until Aug. 26th, 1894, to certain exceptions. And it seems that now as regards all ships within the operation of that Act (which appears to apply to foreign ships), crew spaces can only be deducted under the Act of 1867.

In the case of foreign ships, if the foreign measurement differs materially from that under the Merchant Shipping Acts, her Majesty is enabled by 52 & 53 Vict. c. 43, to revoke any Order in Council relating to the country of such ship; and the ship will be re-measured under the Merchant Shipping Acts.

(9) Chartered Mercantile Bank of India, fc.v. Netherlands Steam Navigation Co., 10 Q. B. D. 521.

(1) In St. Lucia, the limit of liability is 181. per ton. The Canadiau Act is 43 Vict. c. 29: see Georgian Bay Transportation Co. v. Fisher, 5 Tupper's Rep., Ontario, 383.

(i) 39 & 40 Vict. c. 80, s. 23, does not seem to apply to liability for collision.

6) The Franconia, 3 P. D. 164,

where Burrell v. Simpson, 4 Sess. Cas. 4th Ser. 177, was not fol. lowed.

(6) The Palermo, 10 P. D. 21.

(1) 52 & 53 Vict. c. 43. Sect. 3 of this Act directs certain deductions in measuring for the purpose of ascertaining register tonnage. In The Umbilo, (1891) P. 118, the owner of a steainship was not allowed to make these deductions in limiting his liability.

Where the ship's tonnage, as shown by her register, had been altered after the collision, and after action for limitation of liability brought, but before judgment in the damage action, it was held that the tonnage to determine the amount of the owner's liability was that shown by the register at the date of the collision (m).

The ship's register is not conclusive as to tonnage. If the tonnage is in fact different from that shown by the register, the liability of the owner is measured by the actual and not the register tonnage (n).

In the case of a steamship the tonnage, for the purpose of calculating liability, is the gross tonnage, without deduction of engine-room, master's accommodation, or navigation spaces (o).

The shipowners who are entitled to the benefit of Beneficial limited liability are beneficial owners as well as registered titled to limit owners (v). It would probably be held that charterers liability. and other persons having a temporary ownership of the vessel are not entitled to the benefit of the Act, but the point has not arisen in any reported case. The liability of the owner is not limited where he is the "Without

their (the actual wrong-doer (9); the Act applies only where the col

owners') lision occurs without the “ actual fault or privity” of the actual fault

or privity.” The meaning of these words was discussed in The

owners en


(m) The John M'Intyre, 6 P. D. 200; and see The Dione, 5 Asp. M. L. C. 347.

(n) The Recepta, 14 P. D. 131 ; The Franconia, infra.

(0) 25 & 26 Vict. c. 63, s. 54 ; 52 & 53 Vict. c. 43, s. 3; The Umbilo, supra. As to deduction of crew spaces, see p. 170, supra.

(P) The Spirit of the Ocean, Br. & L. 336. In Hughes v. Suther.

land, 7 Q. B. D. 160, a person who had contracted to buy a ship was held to be owner within sect. 147 of 17 & 18 Vict. c. 104.

(9) See 17 & 18 Vict. c. 104, s. 516. This section seems to apply to 25 & 26 Vict. c. 63, s. 54; see s. 1 of the same Act. In sect. 616 the “master” is mentioned; in sect. 54

owners” only.

Master partowner.

Warkworth (;-), the facts of which case are stated below (s). The effect of the words is to protect the shipowner, not only against the legal consequences of negligence in his servants or agents, but also from any imperfections in the ship which cause collision. An owner navigating his ship with his own hand, or, it seems, under his own orders as master, would not be entitled to the benefit of the Act.

If it is intended to make a master who is also part-owner liable beyond the statutory limit, as for a collision caused by his actual fault or privity, he must be sued as master in the first instance (t). It is not clear what constitutes fault or privity depriving an owner of the benefit of the statute. Where the master, who was also part-owner, was on board, but not on deck, at the time of the collision, and the ship was properly in charge of the mate and pilot, it was held that there was no fault or privity on the part of the master (u).

The fact of the master of the wrong-doing ship being a part-owner and personally in fault for the collision will not deprive his co-owners of the benefit of the statute (v); but he is himself liable for full damages (rc). Where the master is a part-owner, it is not necessary for the coowners, in order to obtain judgment limiting their liability, to prove that the master was not privy to the collision. They are entitled to the usual declaration limiting their liability, with a reservation of the injured person's rights against the master (x).

Under 17 & 18 Vict. c. 104, and the previous Act, 53 Geo. III. c. 159, sea-going ships only were entitled to the

Co-owners : one actually in fault.

What British
ships are en-
titled to the
benefit of
the Act.

(0) 9 P. D. 145.
(s) Page 175.
(t) The Volant, 1 W. Rob. 383.

(u) The Obey, L. R. 1 A. & E.
102. See Kidson v. McArthur, 5
Sess. Cas. 4th Ser. 936.

(v) The Spirit of the Ocean, Br. & L. 336 ; The Obey, supra; Kidson v. McArthur, supra; The Empusa, 5

P. D. 6; Wilson v. Dickson, 2 B. & Ald. 2, was a similar decision under 17 & 18 Vict. c. 104.

(w) 17 & 18 Vict. c. 104, s. 516. The Triune, 3 Hag. Ad. 114, is a decision upon the similar exception in 53 Geo. 3, c. 159.

(.1) The Cricket, 5 Asp. M. L. C. 53.

benefit of limited liability. It seems that any foreign ship Ship must be and any British ship (y), seagoing or otherwise, is entitled registered. to the benefit of the Act now in force; but if she is British, and the law requires her to be registered, she will not be entitled to the benefit of the Act unless she is registered. Craft under fifteen tons employed solely upon the coasts or in rivers of the United Kingdom or some British possession within which the managing owners are resident, and certain fishing and coasting craft on the Newfoundland and neighbouring coasts, are not required to be registered).

Where an unregistered ship was negligently launched from a builder's slip on the Mersey and damaged a vessel afloat, it was held that the liability of her owners (who were British) was not limited by the Act, and they were liable for the whole loss (a). But a ship bought by British subjects from Dutch owners, and not yet registered as British, was allowed to limit her liability as a foreign ship (6).

Section 54, sub-sect. 2, does not apply to goods transhipped Goods tranafter and in consequence of a collision caused by the fault of shipped after the carrying ship, and subsequently lost by the negligence and lost. of those on board the ship to which they were transhipped. In such a case the Act affords no protection to the ship

The Bernina, by her own fault, was in collision with The Bushire. Without the assent or knowledge of the cargo-owner, and in order to carry the cargo to its destination, the master of The Bernina transhipped his cargo from The Bernina, which had been injured in the collision, to The Brixham and Arebury. These two ships subsequently went ashore, and were lost with their cargoes by the negligence


() As to the meaning of “ship” in the Merchant Shipping Acts, see p. 326, infra.

( 17 & 18 Vict. c. 104, ss. 19, 516 ; 25 & 26 Vict. c. 63, s. 1. As to sea-fishing craft, 31 & 32 Vict. c. 45.

(a) The Andalusian, 3 P. D. 182. Cf. British Columbia Towing and Transport Co. v. Seuell, 9 Duval's Rep. (Canada), 527.

(6) The Brinio, Ad. Div., Jan. 27th, 1891; 90 L. T. 249.

« AnteriorContinuar »