ships, but both refused to touch the question of pilotage, on the ground apparently that it had nothing to do with loss of life at sea. Yet it can scarcely be doubted that a law which enables the larger and swifter and therefore more dangerous class of vessels to run down others with impunity tends to reckless navigation and loss of life. The fact is that this matter of compulsory pilotage is so little understood by the public, so complicated and technical in its details, that no one likes to grapple with it. Pilots moreover and pilots' friends have votes, and the Government that undertakes the abolition of compulsory pilotage will bring a hornets' nest about its ears. These considerations have greater weight at the present day than they ever had before, and make the task of attacking the pilots' monopoly a dangerous one. Free trade moreover is just now under a cloud, and free pilotage has a ring of free trade about it that makes politicians more shy than ever of touching it. But this much should at all events be insisted upon, that compulsory pilotage be not extended. It seems doubtful whether even this will be conceded, for this year a Bill has been brought in of which the object is to compel foreign steamships carrying passengers between ports in the United Kingdom to employ pilots. It is to be hoped that the Government will give no sanction to this retrograde proposal. It is a pilots' Bill, and nothing else; the suggestion, of which some hints have appeared in the newspapers, that by allowing foreigners to navigate their own vessels in our harbours we are enabling them to acquire knowledge which will be used against us in time of war, is a mere blind and will not bear a moment's consideration.

Since therefore compulsory pilotage seems likely to remain the law of the land for some time to come, it may be worth while to examine the doctrine of the Courts which prevents the sufferer by collision caused by the fault of a compulsory pilot from recovering damages from the wrong-doing ship or her owners. This doctrine rests upon the assumption that the pilot is not the agent of the shipowners, that the law which obliges the shipowner under a penalty to employ the pilot takes the ship out of the owner's charge and places her in the charge of the pilot. In the words of Dr. Lushington (The Peerless, Lush. 45), ' Where a person is compulsorily put on board a vessel, and the owner's authority is superseded by legislative enactment, it would be a violation of all justice

1 Since these pages were in type this Bill has been withdrawn upon the Government promising to appoint a Committee to enquire into the whole subject of pilotage. But it is an ominous fact that the Trinity House has recently refused to grant pilotage certificates to the masters of foreign steamships, and that a mandamus to compel it to grant such certificates was refused by a Divisional Court in the presence of the Law Officers.

to hold such an owner responsible' for the negligence of the pilot. Now from beginning to end of the Merchant Shipping Acts now in force there is no such enactment as Dr. Lushington suggests. There is a section (sect. 388) of the Act of 1854 which relieves the owner from liability for damage caused by a compulsory pilot 'when acting in charge of' his ship; but it is a strong thing to say that these words by implication supersede the master's authority on board his ship and place the pilot in charge. Surely if the Legislature had intended to make it illegal for a master or the owner himself to navigate his ship when a pilot is on board, it would have said so in express terms. But neither has the Merchant Shipping Act done this in terms, nor in practice has the Act been applied in this way. It would be a surprise to shipowners to learn that the right and the duty of a pilot is to take the command of the ship out of the hands of the owner or of the master to whom the owner has entrusted it. On board well-regulated ships and with the best class of shipowners the practice is for the captain to retain the command under all circumstances, and the idea of his being under the orders of a pilot would not for a moment be tolerated. The decisions of the Law Courts and the terms of the Merchant Shipping Acts relieving owners from liability for damage caused by the pilot have no doubt introduced some confusion into the matter, and masters are unwilling to interfere with the pilot for fear of making their owners liable for damage which they see will be the result of carrying out the pilot's orders. But as a matter of discipline on board ship there cannot be a doubt that the owner if he sails his vessel himself, or his master if he does not, has the right to give any order to the helm he thinks fit, notwithstanding the presence on board of a pilot, whether compulsory or not. The question has arisen in some recent cases where French, Suez Canal, or Danube pilots have been taken on board under compulsion by the foreign law of paying the pilotage charges, whether the shipowner is liable for collisions caused by the negligence of these 'compulsory' pilots; in every case it has been decided that the shipowner is liable. These cases show that there is no rule of English maritime law which requires the master of a ship to give over the charge of his ship to a pilot properly taken on board; and it is difficult to see why, if the pilot is the agent of the shipowner in these cases, he should not be equally his agent where the compulsion is by English law. A theory was started by Dr. Lushington, that upon grounds of public policy and as part of the common law of the sea it is necessary that where a pilot is on board he should have command of the navigation of the ship. There must, it was said, be no double command, no divided respon

sibility, or we shall have contradictory orders given to the helm at critical moments, and untold evils will be the result. And Beawes lays it down that after a pilot is taken on board the master has no longer any command of the ship till she is safe in harbour.' We doubt whether modern shipowners would assent to this proposition. It is certain that some of the best-known lines of steamships are navigated upon the opposite principle, and that their masters are expressly instructed never to abdicate their command in favour of a pilot who perhaps has never been on board the ship before and knows nothing of her peculiarities or behaviour under steam and helm. The true and seamanlike view of the pilot's position and functions is that he is taken on board to assist the master with his local knowledge with regard to dangers, tides, and shipping likely to be met with; and this being so, the responsibility of every order to the helm should as matter of law, at any rate as regards third parties whose ships may be sunk in consequence of those orders being carried out, rest with the shipowner. It may be added, that the laws of almost all foreign countries accord with this view. Germany alone has an express enactment similar to sect. 388 of our own Merchant Shipping Act, exempting owners from liability for damage caused by a compulsory pilot (Art. 740, Allgemeines Deutsche Handelsgesetzbuch). As a set-off to this solitary peculiarity of German law may be quoted the recent Statute of the Dominion of Canada, 36 Vict. c. 54 (Canada), ss. 56, 69, which has reversed the legislation of the mother country by expressly enacting that the shipowner shall be liable for damage caused by a compulsory pilot.

The truth is that the statutory exemption of shipowners from liability for damage done by a compulsory pilot is part of the exceptional and mischievous legislation which exempts shipowners from liabilities to which the rest of the world is liable by the Common Law. It is part of the protective system applied to shipping matters which we copied from the Dutch in the days of our fierce rivalry with Holland upon the seas two hundred years ago. The Navigation Acts, compulsory pilotage, and the limitation of shipowners' liability for the negligence of their servants at sea are intimately connected with one another in point of policy. The Navigation Acts have gone, and our mercantile marine has advanced by leaps and bounds since their abolition. The law which enables a shipowner to run down and sink ships, to drown people and destroy property afloat at a cheaper rate than is permitted to other people still remains. This law and the law of compulsory pilotage, with its attendant exemption of shipowners from liability, are direct incentives to negligence and carelessness

in a business which above all others requires the constant an minute attention of those engaged in it, namely the navigation of ships at sea. In these days, when so many wild proposals are being made for legislative protection of life at sea, it would be well to consider whether the wholesome doctrine of respondeat superior might not be applied with advantage to the shipowner who under cover of compulsory pilotage permits his ship to be carelessly navigated by a pilot whom he is at liberty at any moment to supersede. If, as probably would be the case, such a change in the law were to lead to the speedier abolition of compulsory pilotage, it would be doubly beneficial.

R. G. MARSDEN.

63

REGISTRATION OF TITLE IN PRUSSIA.

(1) Report by MR. C. S. SCOTT, Secretary to H. M. Embassy at Berlin, on the Conveyance and Registration of Land Titles in Prussia. Presented to both Houses of Parliament, June, 1887.

(2) Die Preussischen Grundbuch und Hypotheken Gesetze vom 5 Mai, 1872. F. WERNER. Berlin, 1873.

(3) Commentary on the Prussian Law of 1872, in the Annuaire de la législation étrangère, by P. GIDE. Paris, 1873.

R

EGISTRATION of Title has been established in the Kingdom of Prussia ever since the year 1872, and has succeeded there quite as well as in our own Australasian Colonies. It is hoped, therefore, that the following short study will not be thought wholly unprofitable at the present juncture in England.

In some respects the Prussian experience may be even more useful to us now than the study of the Torrens system in Australasia. For, first, the statutes establishing Registration in Prussia had the advantage of being drawn by skilled lawyers, an advantage which will be apparent on the merest glance at the two bodies of legislation1. Next, the general condition of land titles, and the uses to which land is habitually put in Prussia, furnish a much nearer parallel to the case of England than the same things in Australasia: and, further, both in the detailed development of the strong points of the system, and in the speed and cheapness with which sales and mortgages are conducted, the practical results obtained in Prussia appear in some respects to be even better than those obtained in our own colonies. It is proposed in the following article to attract attention, as far as possible, to those points in the Prussian system which contain lessons for ourselves, supposing we choose to read them.

The system previously in force was Registration of Deeds 2. But the usefulness of this Deed Registry was much impaired by

The bad drafting of the Torrens Acts is the subject of incessant comment by the Australian judges, and legal authorities generally the following extract from a recent judgment by Sir James Martin, C. J. of New South Wales, is one instance among many :We have been referred to a number of sections of the Real Property Act, which, as I have said on many other occasions, is very badly drawn, and perhaps necessarily so, as it was a novel idea, originated by a man who knew nothing about law, although he may have been assisted by professional advisers; and even the most skilful lawyers will find it a difficult matter to draw such an Act with precision and clearness.'

2

Registration was not requisite for the validity of a deed, but it conferred priority, as under our own Middlesex and Yorkshire Acts.