1857. December 15. Burden of who assert improper abandonment. In the High Court of Admiralty. THE LINDA, J. A. MELCHER, Master. Collision-Abandonment-Subsequent Salvage Expense. The ships L. and G. came into collision, after which the G. was abandoned by her master and crew, and was picked up by another vessel and carried to Madeira, by which a large salvage expense was incurred. G. brought an action for damage against L., in which both vessels were pronounced to be in fault. On a further question, whether the expense of salvage was to form part of the damage which would be divided between the vessels, it was held, that, under the circumstances of the case, the G. was improperly abandoned, through want of ordinary nautical skill and resolution in her master and crew; that the salvage expense incurred was chargeable to such misconduct, and would form no part of the damage arising from the collision. When a collision has taken place the burden of proof lies on those who assert that subsequent damage and expenses are not chargeable to the collision. THIS IIS was a question as to the amount of damage arising in a cause of collision, brought by the owners of the Georgina against the Linda, in which the Court had pronounced both vessels to be in fault. It appeared, that after the collision the Georgina had been abandoned by her master, and a few days afterwards picked up by another vessel and carried to Madeira; materials and a crew were sent by the owners of the salving vessel from Liverpool to Madeira, for which service a considerable salvage had been decreed. The owners of the Linda denied that they were liable for any part of this subsequent expense, which they asserted to be caused by the unnecessary and improper abandonment of the Georgina by her master and crew. DR. LUSHINGTON stated, that he should require to be satisfied that the master had wilfully abandoned his vessel when he might proof on those have saved her, or that he had abandoned her through a want of ordinary nautical skill and resolution; but that, if there were extraordinary risk of life in remaining by her, or if it turned out to be a question of want of judgment in the master as to whether it were expedient to act in this or that way, he should consider the collision to be the cause of the whole damage and expense incurred. Phillimore, A. A., and Spinks, for the owners of the Linda. Addams and Twiss for the Georgina. The Court was assisted by Captains Pixley and Close. 1857. December 15. act? Or skill and reso DR. LUSHINGTON, addressing the Trinity Masters :-Gentle- Judgment. men, this is a case of considerable importance with regard to the interests involved, but not as regards the principle applicable to what has been called consequential damage; for this, I think, I shall have no difficulty in clearly stating to you. We decided the other day that both these vessels were to blame for the collision. According to the law of this Court, the damage arising therefrom is to be divided equally between the owners of the two vessels; if there had been a cross-action, the cost of the damage received by the other vessel would also have been equally divided. At common law the rule is different. It is said, however, by the Linda, that the heavy salvage which became due from the Georgina was no necessary result of the collision, but arose from the default of the master and crew of that vessel. The question therefore for you to decide is, whether, Was the abanlooking at all the circumstances of the case, the abandonment donment of the Georgina of the Georgina was a reasonable act on the part of the master a reasonable and crew? In other words, whether the vessel was improperly or was there abandoned by the master in consequence of want of ordinary a want of ordinautical skill and resolution? I say, with reference to all the nary nautical facts in the case, because we cannot otherwise come to any fair lution? conclusion on the question of want of ordinary skill or resolution, or of what danger was incurred. I consider that the master and Crew are not crew, after collision, are not bound to incur extraordinary risk of extraordinary life by remaining on board their vessel. Their obligation to risk of life. remain by the vessel under the difficulties and risks of ordinary navigation is quite another matter. When a collision has taken place, though both vessels are to blame, yet the general inference is, that the damage accruing was caused by the collision, and the burden of proof is on those who wish to show that any part of it Burden of arose from subsequent want of skill in the crew of the damaged proof. vessel. You have heard described, Gentlemen, the condition of Facts of the the Georgina, when she was discovered by the salving vessel, a few days after her abandonment. From this you will consider whether you can infer that the master and crew could have navigated the ship with reasonable prospect of safety to some port. You will remember also, that a seaman was lost at the time of Could the the collision; on the other hand, that the weather was fine and Georgina have been navigated the season summer. I must also call your attention to what to some port occurred after the collision. It appears that the master and one able prospect of the men got on board the Linda; the mate and the rest of the of safety? bound to incur case. with reason 1857. crew remained on board the Georgina. We have heard considerDecember 15. able argument as to what occurred directly afterwards in the course of that morning. I think it perfectly true that the Linda stopped by the brig, that those on board her offered the master and crew every assistance in their power, in the way of provisions, spars, sails and rigging; and everything no doubt would have been done by them had the offer been accepted. There was no offer, however, made to stay by the vessel or to take her in tow. Afterwards the master determined to abandon the brig, and it does not appear that any of her crew wished to remain on board of her. What is likely to have actuated the master in coming to such determination? No benefit could arise to himself, the owners, or crew, by the course he adopted; his interest was to bring the ship and cargo safe to port. It is said mala fides is proved by the asserted attempt to scuttle the brig; till lately, such an act would have been a capital offence, and now it is a highly penal one. If you can depend on the evidence of the witness Gladding, and the asserted confession of the master as to the attempt to scuttle, it would, I think, affect the whole merits of the case; but such a crime is not hastily to be presumed, still less likely is it that an attempt-for nothing was actually done— should be talked about and confessed. Opinion of the ters. unjustifiable. The Court and the Elder Brethren having retired for consultation, on their return, DR. LUSHINGTON said :-The Trinity Masters are of opinion that the abandonment of the ship, under the circumstances, was Abandonment unjustifiable; that a master of ordinary skill and ordinary courage ought to have attempted to salve the vessel, which most probably would have been accomplished with the means and assistance offered. Consequently, the expense incurred by the actual salvage cannot be considered as the result of the collision in this case. So far as relates to the collision, each party must pay their own costs; but the party proceeding must pay the costs occasioned by the question of the subsequent salvage expense. Clarkson and Son, proctors for the Georgina. Thomas and Capes for the Linda. 1857. December 24. THE LINDA FLOR. Collision-Damage-Wages-Priority. Where a foreign ship is condemned in damage arising from a collision, and the proceeds of the sale are not more than sufficient to meet that damage, her crew have no prior right against the ship for their wages. THIS HIS was a suit against a Portuguese ship for mariners' wages. It was opposed by a party who had obtained a decree against the vessel in a cause of damage, the proceeds being insufficient to meet all the claims. The Admiralty Advocate for the mariners. Addams, contrà, relied on the case of the Chimara, decided 1852 (a). the party having obtained a de As cree in a cause of damage is con prior to that for wages. DR. LUSHINGTON:-The facts in this case, so far as they Judgment. relate to the question at issue, are the same as the facts in the case of the Chimera; and I was then of opinion that the The claim of a mariners could not maintain their claim to the prejudice of parties who had obtained a decree in the cause of damage. the same point has been again mooted, the question for my sideration is, whether I see sufficient cause to depart from that of the seamen judgment. I adhere to my opinion as expressed in the case of the The mariner Chimera, and I do so especially for the following reasons: that the has a lien on the ship, and a mariner, besides a lien on the ship for his wages, has also a right right of action of suing the owner personally; that in the case of a foreign ship personam; doing damage and proceeded against in a foreign country, the in- but the injured jured party has no means of obtaining redress save by proceeding against the ship herself, which I apprehend is one of the most cogent reasons for all our proceedings in rem; that, in a case remedy but in where the proceeds of a ship are insufficient to compensate for the damage done, to allow the mariners to take precedence of those who have suffered damage would be to exonerate so far the owners, to whom the damage is imputed, at the expense of the injured party, -the wrong-doer at the expense of him to (a) November 25, 1852, not reported: nares, 7 Notes of Cases, Suppl., p. 1, but the Judge there referred to the Be- as laying down the rule. in party, in the case of a foreign ship, has no rem. 1857. December 24. whom wrong has been done. For, as to the mariner, what is the hardship to which he is exposed? It is true he fails in his remedy against the ship, but his right to sue the owner remains unaffected. These reasons satisfy my mind as to what my decision ought to be, and they constitute the grounds of that decision; it is, however, not to be forgotten that in all these cases of damage, or nearly all, the cause of the damage is the misconduct of some of the persons composing the crew. This is not the case of a bankrupt owner; it will be time to consider such a case when it arises. Loveday, proctor for the mariners. Rothery for the owners of the damaged vessel.. THE RINGDOVE, NUTMAN, Master. 1858. March 12. Judgment. Master's Wages-Mortgagee of the Ship in possession-Right to If a ship is arrested for ship and freight, a party shewing a primâ facie title to THIS HIS was an action by the master of the British ship Ringdove against ship and freight for his wages. The ship having been arrested, an appearance in the action was entered for Mr. George Thomas, as mortgagee of the ship in possession, and bail was tendered but refused. The Court was now moved on the part of the mortgagee to order the release of the ship upon bail being given to the amount of the action. This was opposed on the part of the master, on the ground that the mortgagee was not entitled to receive the freight; and that, where property was arrested for freight, it could only be released upon payment of the freight into Court. Deane, Q.C., for the mortgagee. Addams, Q.C., for the master. - DR. LUSHINGTON: In this case the master has brought his action for his wages against ship and freight by virtue of the Merchant Shipping Act, 1854, s. 191, as he is undoubtedly |