1858. July 26. Case of the Court pronounced for the bond, so far as concerned ship and freight, and the ship was sold. The proceeds of the ship, together with the freight (after deductions) lying in the Registry, amount to 2,2211. 8s. 2d. The bondholders claim 3,0407. 17s. 6d. as due to them upon the bond, and they now pray in their Act on petition that the bond may be pronounced valid as against the cargo. To this Messrs. Livingston answer, that their property was hypothecated without their consent, that they had no interest in the debt for which the money was borrowed on bottomry, and that the bond is not valid in law against the cargo. And the question which I have to decide is, whether the cargo is liable under this bond. I have never known an instance in which a bond on ship, freight and cargo, pronounced valid against ship and freight, has been held not valid against cargo; but undoubtedly a bond may be good in part and bad in part: all depends on the circumstances of the case. In the present case it is very important that the circumstances, as I have detailed them, should be well understood, for I ground my judgment upon them. I ground my judgment upon the undisputed fact, that the damage to the ship was done and the repairs executed before the charter-party and the bond given before the shipment of the goods, and upon the fact, which I consider clearly proved, that the owners of the cargo did not consent to the giving of this bond. They affirm on oath that they did not consent, and moreover the charter recites that the ship then proceeding to Rangoon was tight, staunch and strong, and every way well-fitted for the voyage. I am anxious to guard against my judgment being extended beyond the circumstances of the case, because I am aware that bonds in circumstances like the present have in fact been pronounced for. I mean in the case of vessels in the West India trade, meeting with damages on the outward voyage, where bonds have been given on ship and cargo before the cargo was actually shipped. In some of these cases the cargo was contracted for previously, in others it was only insured by the custom of the trade. But these were all undisputed cases. The point now at issue has never been distinctly raised for decision. I have now to give my judgment upon it, and I do so not without much consideration, the more so, as I am informed, that there are other cases of the like kind depending on my decision. On the present occasion the case of the Gratitudine (a) has been (a) 3 C. R. 240. cited for the bondholders. There had been many cases antece- 1858. July 26. over the cargo till it is put on board. be quite clear that where a ship is lying in her original port, and is in need of repairs in consequence of a former voyage, or in need of necessaries, no bottomry bond can be given on cargo which is not shipped; and that for the obvious reason that the master has no control over the cargo till it is on board the ship. The master is the agent of the ship for many purposes, but he is not the agent of the cargo, except so far as it is thrown upon him by direct contract or by necessity; and it is not till the cargo comes The master has on board the ship, and under his control, that he has the slightest no authority right to interfere or deal with it, directly or indirectly. It appears to me that it would be contrary to principle, and most mischievous, if a valuable cargo lying in a port in this country, having been shipped from the East Indies, was held liable for damage done to the ship before it had been put on board or contracted to be so,—a liability which the owners could not have contemplated their property would be exposed to. Dr. Twiss has said that this Court has no jurisdiction over goods pledged when on land, but I wish it to be understood that I do not decide this case on any point of jurisdiction, but because I am of opinion that the master had no authority in fact or in law to hypothecate the property. I am of opinion that this bond can- Bond as against not be supported, so far as it affects the cargo, and therefore I cargo invalid. must pronounce against that portion of it, with costs. Bowdler and Bathurst, proctors for the bondholders. Tebbs for the owners of the cargo. S. CC 1858. December 8. Judgment. Facts admitted. In the Privy Council. Present-The Right Hon. Lord KINGSDOWN. The Right Hon. Sir J. T. COLeridge. THE NORTH AMERICAN. ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. Collision-Estoppel by Pleading and Evidence-Practice— The Court will proceed secundum allegata et probata, even though entertaining some doubt whether, in so doing, it will arrive at the real truth and justice of the case. In a cause of collision, therefore, the party suing cannot recover in full if he fails to prove the case set up in his pleading and evidence, although no fault be proved against his vessel, and fault is established against the other vessel. The libel and evidence of A., a foreign vessel, close hauled on the starboard tack, alleged B. to have had no look-out, to have starboarded just before the collision, and to have struck A. with her starboard bow; B.'s want of look-out was proved, but it was proved that B. struck A. with her port bow; B.'s starboarding was not proved. Held that A. could not recover in full. Where both parties appeal from a sentence of the Court below, pronouncing both to blame, and the sentence is affirmed, no costs of the appeal given. THIS HIS was a cause of collision, on appeal from the High Court of Admiralty. Addams, Q.C., and Twiss, Q.C., for the Tecla Carmen. Wilde, Q.C., and Deane, Q.C., for the North American. In this case, on the 6th April, 1858, a suit of damage was instituted in the High Court of Admiralty by the Spanish barque Tecla Carmen against the ship North American. The Court was of opinion that both parties were to blame and had contributed to the accident. From this sentence an appeal has been brought by the Tecla Carmen, and there is a cross appeal by the North American. The collision occurred in St. George's Channel on the night of the 8th March, 1858. The North American is a large vessel of 1,330 tons, and the barque a small vessel of 285 Both were bound for Liverpool; the Tecla Carmen tons. Upon these Nor was any in ballast, the North American with a cargo of cotton. Both 1858. December 8. against the It is admitted that the North American did not in fact port Want of lookher helm till a minute or two before the collision took place. out established To justify this, it was alleged that the Spaniard had no lights North Ameriexhibited, and could not therefore be seen till she was within six can. or eight hundred feet. The Court below has held that this defence was not made out, and that the neglect of the North American to keep a good look out and to port her helm, in due time at all events, contributed to the accident. In this opinion their Lordships and the naval gentlemen by whom they are assisted entirely concur. Upon this point, therefore, the judgment must be affirmed. fault? The great question is, whether the Tecla Carmen was also in Was the Tecla fault? The fault imputed to her is, that instead of keeping her Carmen also in course she starboarded her helm, and thereby brought herself into collision with the other ship. And it is material to attend to the case in the pleadings and sworn to by the witnesses on each side, for we must proceed secundum allegata et probata, though we may entertain some doubt whether in so doing we shall arrive at the real truth and justice of the case. The Court must proceed secun dum allegata et probata. American The libel on the part of the Spanish vessel alleges that the The libel states accident took place in the following manner :-That the North that the North American was first seen by the Tecla Carmen at the distance of struck with the about a mile, and from three to four points on her port bow; that starboard bow. the Tecla Carmen held her course, and that the North American did the same till she was within such a distance of the Tecla Carmen as to make a collision inevitable; that in order to break the force of the blow the Tecla Carmen then ported her helm and luffed up into the wind, but that the North American with her starboard bow struck the Tecla Carmen on her port side abreast of her forerigging, and raked her from thence right forward, carried away her mainmast and part of her mizenmast, and in 1858. December 8. Counter allega tion, that the Tecla Carmen starboarded, and struck the can on the port bow. short reduced her to such a state of wreck that it was necessary for the crew to abandon her. The allegation on the part of the North American insists that if the two vessels had held their respective courses no collision would have taken place, but that the Tecla Carmen starboarded her helm and ran into the North North Ameri- American on her port side, the bowsprit of the Tecla Carmen passing under the bowsprit of the North American and striking the North American on her port bow near the hawse-pipe; and the Tecla Carmen being forced round by the weight and impetus of the North American, the port bow of the Tecla Carmen then came in contact with the starboard bow of the North American, and the two vessels lay for some time alongside chafing against each other. In proof of this statement the allegation refers to a model of the bows of the North American, showing the damage done to each bow, and which, it alleges, proves that the collision must have been on her port and not on her starboard side. The parties are therefore directly at variance in their pleadings as to the mode in which the collision took place. The witnesses for the Tecla Carmen follow the libel also charging the North American with starboarding. The evidence on the other side conclusive; the collision was with the port side of the North American. The master of the Tecla Carmen states the accident to have taken place in the manner stated in the libel, viz., by the starboard bow of the North American running into the port bow of the Tecla Carmen, and he alleges that the North American starboarded her helm, and thereby occasioned the collision. The boatswain gives the same account, and so do all the witnesses on the part of the Tecla Carmen, with the exception of the mate; but it is very remarkable that this witness, in his examination in chief, gives a totally different account, and one which agrees with that subsequently given by the North American. He says, "The North American hit us first with her stem and then with her port bow on our port bow a little before our forerigging. The blow led aft. When she hit us she slewed us right round, and her starboard side came alongside our port side. She broke our bowsprit and foremast, and our main and mizen-topmasts came down and stove in our port bow." The witnesses on the part of the North American all concur in stating that the collision took place in the manner stated in their allegation. And before the case closed evidence came to light which, in their Lordships' opinion, removes all doubt upon this part of the case. The master of the North American alleged that the inspection of the bows of the ship showed that the collision must have taken place on her port side, and that the violence had been such that the bowsprit of the Tecla Carmen had torn away a portion of the plank against which it struck. |