1856.

supplied to the said ship, together with his costs. And at the November 28. further petition of Clarkson, and with the consent of Burchett, decreed the said vessel to be appraised and sold. The vessel was sold, and after payment of the marshal's disbursements and fees there remained a sum of 1,6597. 11s. 9d as the net proceeds of the ship. Nicholson, proctor, appeared for Messrs. Pattison, the mortgagees, objected to the payment of Mr. Seabright's claim out of the proceeds, and prayed the Court to decree the net proceeds remaining in the Registry, to be paid out to his parties in part satisfaction of their mortgage bond and interest. An act on petition was gone into on the question; and on the 28th of November, 1856, the case came on for hearing.

December 6. Judgment.

Does the Act

of 3 & 4 Vict.

c. 65, s. 6, extend to neces

saries supplied

to a foreign ship in the

colonies ?

Object of the

6th section of

the statute was

remedial.

Addams for Mr. Seabright.

Jenner and Spinks for Messrs. Pattison, who contended that the 6th section of 3 & 4 Vict. c. 65, was not intended to apply to the case of necessaries supplied to a foreign ship in a port at a distance from England, though a British possession, any more than to similar supplies in foreign ports,—against which latter construction the Court itself had decided in the case of the Ocean (a).

DR. LUSHINGTON gave judgment:-This is an action for necessaries. It is not denied that they were, in fact, supplied to the vessel at the Cape of Good Hope. The only question which has been argued, and which I have to decide, is, whether the jurisdiction of the Court, under sect. 6 of 3 & 4 Vict. c. 65, extends to the colonies. The law was settled by the Judicial Committee of the Privy Council in the case of the Neptune, 3 Knapp's Cas. P. C. 94, till it was unsettled by the Act of Parliament, that a merchant or trader supplying necessaries had no right even against the proceeds of a vessel sold in another suit in the Admiralty Court; they certainly had not a lien on the ship itself. Before considering the 6th section itself of the statute, it may be worth while, at the risk of repeating what I said in the Ocean, to inquire what evils the legislature desired to remedy. It frequently happened that a foreign vessel in distress on the high seas surrounding the coast of this country, or driven into a port, found great inconvenience and difficulty, owing to want of credit on the part of the master, and to want of communication with her owner, in getting necessary repairs and supplies; or, on the other hand, the English merchant who was

(a) 2 W. Rob. 368; 9 Jur. 381.

1856. December 6.

induced to provide such supplies frequently found himself without means of obtaining payment. It is clear that the evil would be the same whether the necessaries were required in a colonial port or in England; the probable intention of the legislature was, to provide a remedy equivalent to the mischief; but we all know sometimes that quod voluit non fecit. The 6th section is in these words: "Be it enacted, that the High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to, or damage received by, any ship or seagoing vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or seagoing vessel, and to enforce the payment thereof, whether such ship or vessel may have been in the body of a county or upon the high seas at the time when the services were rendered or damage received, or necessaries furnished, in respect of which such claim is made." Now the four subjects-salvage, damage, towage and necessaries to all of which the words "in the body of a county or on the high seas" apply, are in themselves distinct, and stand in very different relative positions. The Court, prior to the statute, had jurisdiction over salvage and damage, but under limitation as to locality; it had not over simple towage, which was only then coming into use, nor as to foreign ships for necessaries; as to salvage and damage when they took place on the high seas only, but not when they occurred within the body of a county; but it has never been contended that the Court could not take cognizance of salvage at Port Louis for instance, which is certainly not in the body of a county, and neither more nor less on the high seas than Simon's Bay. Why should the words receive a narrower construction when applied to necessaries? Necessaries supplied in colonial ports require the remedies given by the statute just as much as those supplied in England; and if there was a doubt about the words used, the Court would be inclined to construe a remedial statute liberally. My own observations in the Ocean were much relied on in argument it liberally. against this construction. If the Court were satisfied that the Case of the opinion there expressed were erroneous, it would have no hesitation in retracing its steps. But all such decisions and observations must be read according to the subject-matter which gave rise to them. In that case an English merchant supplied some of the fittings of a new vessel building in a foreign port, and the question was, whether that gave him a perpetual lien on the vessel for their cost-not whether the statute extends to British ports, including colonies, for the supply of necessaries to a foreign. vessel for the prosecution of a voyage. This claim must be maintained; but I am by no means clear, even if I am mistaken

The Court

would therefore interpret

Ocean.

1856.

on the point of colonial ports, that it could not be supported December 6. under the narrower interpretation; and whether if this ship were at Simon's Bay when the necessaries were supplied, the term "high seas" would not apply to it.

F. Clarkson, proctor for Seabright.

Nicholson for Messrs. Pattison.

THE LEGATUS, BEAZLEY, Master. Collision-Salvage-Liability to Costs of Salvage Suit, as part of the Damage sustained.

The vessels C. and L. came into collision, in consequence of which certain salvage services were rendered to the C. The salvors brought a suit and recovered 501. The L. was condemned in a suit for damage brought by the C., and on reference to the Registrar and Merchants as to the amount, they struck out the costs of the salvage suit incurred by the C., because her owners had made no tender to the salvors. On objection to their report, held that such costs are, by the practice of the Court, a proper item in the amount to be recovered in a suit for damage, and that there is no general principle laid down in Tindall v. Bell (which had been relied upon) to induce the Court to depart from its usual practice.

THE

HE fishing smack Change having been in collision with the brig Legatus off the port of Lowestoft, was by the aid of salvors taken into the harbour. A suit was subsequently brought in this Court by the smack against the brig, when the latter was found to be the wrongdoer, and a reference was made to the Registrar and Merchants to ascertain the amount of damage sustained. In their report they reduced the claim made by the smack from 1847. to 1047.; and the owners of the smack now objected to the reduction of various items, more particularly to the sum of 521. 18s. 4d., the costs incurred in defending an action brought by the salvors. The owners of the brig contended before the Registrar, on the authority of Tindall and another v. Bell and another (a), that the owners of the smack ought to have made a tender to the salvors, and that having omitted so to do, they were not entitled to the costs which they had paid. The Registrar, coinciding in this view, disallowed the charge.

(a) 11 Mees. & W. 228.

Addams was heard on behalf of the smack.

Bayford and Deane for the brig.

1856. December 6.

salvage suit

DR. LUSHINGTON:-I shall direct my attention in the first Judgment. instance to the only important question which has been argued on the present occasion-namely, whether the Registrar was justified in striking out the claim for costs which were incurred in this Court in resisting a suit for salvage. That suit for salvage arose in this way. After the damage which had been done to the Change by the Legatus, the former was under the necessity, for the purpose of securing herself from further mischief, to go into a port of safety, and for that purpose took the assistance of the salvors, who brought an action and recovered 501., but were refused their costs for reasons into which it is not necessary now to enter; but the owners of the Change had to pay their own costs, amounting to 531. 18s. 4d. The question is, whether, under these circumstances, the owners not having made a tender of any sum, they have a just demand against the owners of the Legatus for the costs incurred by them in that action? With Practice of the Court uniform, regard to the practice of this Court, so far as I have any that salvage knowledge of it, it has been uniform. It has always been and costs of the custom, wherever an action for damage has been brought form part of against another vessel, and where it has been necessary to have damage. recourse to assistance in the nature of salvage, for the remuneration paid for that salvage service to form a part of the claim for damage as well as the costs incurred on both sides in the salvage suit. It may be true that there never has been a case of this sort brought before the Court, but I think that is so for a plain and obvious reason;-the practice of the Court has been such that it would have been considered a desperate attempt to disturb what had been so uniformly and so long done. It is now contended, upon a decision of the Court of Exchequer and a judgment given by Mr. Baron Parke, that the Court ought to depart from its usual course, and to affirm the judgment of the Registrar in striking out this item. I am of course inclined, as I ought to be, to pay the utmost deference to a judgment of the learned judges of that Court in a case of this description, but at the same time I should fail in my duty were I to disturb the uniform practice of this Court, unless I was quite satisfied that it had been founded in error. I could not allow myself to be carried away simply by the practice of those judges. I must be convinced that what fell from the learned judges at common law has the same application as it would to a case before this Court-of which I am not convinced in the

present instance. The principle I take to be quite clear, independent of the case of Tindall v. Bell, that, where damage is done, the party who has received the damage has a right to be recompensed for all the loss that has occurred in consequence of the damage; the indemnification shall extend to all the consequences which may result from the collision. There are limits, of course, to this proposition as to the ulterior consequences under circumstances which do not belong to this case, and into which it is not necessary to enter. The proceedings in Tindall v. Bell were different from the proceedings which take place with us, because our mode of proceeding is to determine whether the defendant is or is not liable for the damage which has been sustained, and then to ascertain the amount of that damage by a reference to the Registrar and Merchants. In Tindall v. Bell special damage was stated. In these cases, when tried at common law, the question as to the propriety of making a tender, as to the amount of the tender, whether sufficient or insufficient, goes to be decided by the jury, and the jury, with the assistance of the learned judge, are competent to determine all those points. But what would be the case if I adopted this rule? I should constitute the Registrar and Merchants the judges as to the amount of the tender, and devolve the primary duties of the Court on them. Speaking with great respect of this judgment in Tindall v. Bell, can it be contended that it is the duty of the party who has had certain salvage services rendered, in all and every case to make a tender? I apprehend there is nothing more difficult, even with the best advice that can be procured from proctor and counsel, than to determine the amount of the tender. Is a man to place himself in this predicament, that if he tenders a sum that is deemed extravagant, he is to lose the amount of that tender? I am of opinion that I do adopt the principle of Mr. Baron Parke, but I do not carry it out in the manner in which it was done in the Court of Exchequer. I say it is the duty of any owner of a ship which has been damaged, and in consequence become liable to pay salvage, to pursue the course which a prudent man acting on his own account would adopt; but I say that a prudent man in many cases acts much more wisely in taking the judgment of the Court than in making the tender. Let it be understood that I do not mean to dispute the judginent in the particular case of Tindall v. Bell, but it does not lay down a general principle which I can follow to the extent which I have been called upon to do on behalf of the party upholding the report of the Under the particular circumstances

Registrar and Merchants.

of this case I do say that the party proceeding did perfectly