1855.

Dec. 4.

The Court of Admiralty has no power to give effect to the equitable provisions of the statute.

Where proceeds are insufficient, application must be made to the Court

before any decree is pronounced.

libel had been admitted, and on the same day that the witnesses
were produced. On the 23rd December Mr. Ring appeared to
this action, and gave bail to the amount of 1,6007. On the 23rd
of January, at the prayer of Mr. Lawrie, and with the consent
of Mr. Ring, it was ordered, that the decree in Mr. Lawrie's
action should be to the same effect as that in Mr. Clarkson's,
and on the 3rd May it was decreed accordingly. On the 12th
July the report of the Registrar was confirmed. It does not
appear from these proceedings that Mr. Clarkson was present,
or in any way made a consenting party to the proceedings be-
tween Mr. Lawrie and Mr. Ring. It is upon this state of facts
that I must in the first instance pronounce an opinion, and after-
wards see whether there are set forth in the act on petition any
circumstances peculiar to this case which ought to affect my ulti-
mate judgment. It is now settled by the decison of the Privy
Council in the case of the Saracen (a), that I have no power to
carry into effect the equitable provisions of the statute. If I have
any equitable jurisdiction in the matter, it must be by virtue of the
authority inherent in this Court, antecedent to and independent
of the statute. It is, however, difficult to act upon any such
assumption, for it was the Act alone which gave rise to any
equitable interference, by limiting the responsibility of the owners
of the ship doing the damage. In the case of a foreign ship, indeed,
there might always have been some necessity for enforcing an
apportionment. It is perfectly true, however, that this Court has
been anxious not only to prevent an accumulation of suits, but to
give effect to an equal apportionment, where the damage done
exceeded the value of the ship and freight. I am not aware,
however, that I have ever made a formal order to that effect,
and, more especially, not where application was made to the
Court to interfere after it had made its decree. Here, now, I
think there has been a misapprehension of what I said in the
Saracen. It has been supposed that my observations applied to
a case where the second action was brought before the decree in
the first action was pronounced, and application made to the
Court for its interference after the decree; whereas, my observa-
tions applied to application to the Court before any decree at all
was made. I am glad to think these observations have been accu-
rately reported in the "Notes of Cases." In the Saracen I stated
that if the application were made before any decree in the cause,
the Court might impose equitable conditions, as, that the party
applying should in case of failure be responsible for a propor-
tionate share of the costs. If such an offer were made, I do not
know that I could absolutely enforce compliance with it; but I
(a) 6 Moore, P. C. 56.

I

1855.

Dec. 4.

But where the

second Plaintiff

has kept him-
self free from
liability to
costs, he cannot

take the benefit

of the decree in

should be greatly inclined, if it were refused, to facilitate the proceedings in the second action where there had been no delay, so as to pronounce a decree in both actions at the same time, and in such a form that both parties might share proportionately. In the present case, however, no application was made to the Court for its interference until after the decree had been made in the first cause, so that if Mr. Clarkson's parties had failed they would have been liable to the whole expenses, and it would, think, have been contrary to all justice for the Court to give Mr. Lawrie's parties the benefit of the decree to the injury of Mr. the first suit to the injury of Clarkson's, when Mr. Lawrie has incurred no risk. It is upon the this principle that I must act on the present occasion, acknow- Plaintiff. ledging at the same time that the whole of this matter is in a very unsatisfactory state, and that difficulties may arise which I have no power to overcome. Without expressing a positive opinion, I am inclined to think that where a ship is bailed any number of actions might be commenced in this Court, and prosecuted too, unless recourse were had to the Court of Chancery. Upon the whole I must reject Mr. Lawrie's prayer, and decree Mr. Clarkson's parties to be satisfied out of the proceeds. I give

no costs.

F. Clarkson, proctor for the owner of the ship.

Smale and Lawrie for the owners of the cargo.

first

THE EARL OF EGLINTON, HUTTON, Master.

Salvage Service by her Majesty's Ships of War.

Officers and crews of queen's ships are entitled to salvage reward; though the fact that their own property is not risked in such services will be taken into consideration. A larger proportion will be given where the property salved is of great value.

HIS was a suit promoted by her Majesty's ships Penelope

THIS

and Frolic, with the permission of the Lords of the Admiralty (a), to obtain salvage reward for services rendered to the Earl of Eglinton in Simon's Bay, at the Cape of Good Hope, on the 21st of June last. The Earl of Eglinton, bound with a cargo of silk, hides, &c., from Calcutta to London, was forced by stress of weather to put into Simon's bay, where she came to anchor under the directions of the harbour master. The wind, however, shifted, and a squall coming on, the vessel

(a) See sects. 484, 485, of Merchant Shipping Act, 1854.

Dec. 6.

1855.

Dec. 6.

Judgment.

was driven on shore and struck heavily on the beach. The Penelope, with a number of men from the Frolic, succeeded in getting her off, after which she resumed her voyage and arrived safely in England. The value of the property salved was 84,500l.

The Queen's Advocate and Twiss were heard for the salvors.

Addams and Deane for the owners.

DR. LUSHINGTON:-This is a case in which the Court is called upon to adjudicate what is a proper reward to be given for services rendered by ships in her Majesty's service, and by her Majesty's servants employed on board them. No doubt different considerations apply to such a case, and to the more ordinary cases where the service is performed by persons at their own risk and at the risk of their property. All the facts are admitted on both sides. That the vessel was in great danger cannot be doubted. She could not let go another anchor, and the only means by which she could be rescued, except with the assistance of a steam vessel, was by unlading part of her cargo, and then, with the assistance of boats, carrying out an anchor. If the weather had become boisterous, she would have been placed in considerable peril. The time occupied in the service was nine hours only; but it has been very truly said that that was owing to the power of the vessel employed, and the effectual aid that was rendered. With regard to any serious peril to the lives of those engaged in this service, I do not know that there is any evidence on which I can rely; though there might have been times when there was risk to life. It must be remembered that, in a case of this description, the Court gives a greater reward on account of the value of the property, because it is less felt by the owners. According to a principle laid down over and over again by my predecessors, something more should be given, because on many occasions salvors perform great services, where the property is small, without adequate remuneration. I do not think I shall give too much by awarding 2,000l., and costs.

Burchett, proctor for her Majesty's ships.

Orme for the Earl of Eglinton.

THE GENERAL DE CAEN, GUICHON, Master. Collision-Compulsory Pilotage-Exemption under Sect. 388 of Merchant Shipping Act.

A French vessel coming up the Thames took on board a pilot, and, as none of her crew understood English, a waterman to take the wheel. The waterman put her helm up instead of luffing, as the pilot ordered, whereby a barge was run into and damaged; the French owner claimed exemption under the 388th section of the Merchant Shipping Act; held, that the pilot was not answerable for the waterman's incapacity or fault, and that the section of the Act, inasmuch as it deprives parties injured of a remedy they would otherwise have had, should be construed strictly.

N this case, a French vessel, the General de Caen, coming up the Thames under charge of a duly qualified pilot,

and damaged a barge lying at anchor off Gravesend. As to the fact of the collision, and that the French vessel was in fault, there was no dispute; but her owners claimed to be protected under sect. 388 of the Merchant Shipping Act, 1854, which enacts, that "No owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law." The owners of the General de Caen admitted that the pilot, under the circumstances, gave the right order, but asserted that the collision arose from that order not having been properly carried out by the man at the wheel, who was an English waterman hired to accompany the vessel up the river, as none of the crew spoke English, at the request and desire of the pilot, and ordered by the pilot to go to the wheel; that this man must be considered to be the pilot's servant, and that the pilot would be responsible for the misconduct or inefficiency of the waterman, so hired and under his orders, as if it were his own.

The owners of the barge damaged denied that the waterman was hired by the pilot, or that the pilot was in any way responsible for him, but asserted that the waterman was hired by Mr. Davis, the agent of the owner of the vessel, who was on board, and by the master.

The Court was assisted by Captains Gordon and Pitcairn.

The Advocate of the Admiralty and Bayford appeared for the owners of the General de Caen.

1855.

Dec. 8.

1855. Dec. 8.

Judgment.

17 & 18 Vict. c. 104, s. 388.

To exempt the
shipowner the
pilot must be
solely to
blame,

and must be acting in charge of the ship.

Facts of the

case.

Twiss and Swabey, contrà, were not called upon.

DR. LUSHINGTON, addressing the Elder Brethren, by whom he was assisted, said:-Gentlemen, this case has been argued with very great pains and much ingenuity, but I confess that my original impression, that this defence was wholly untenable, is not in any degree removed. This is the first time that the 388th section of the Merchant Shipping Act has come under the consideration of this Court, and you will, therefore, excuse me if I make some observations upon it. We are all aware that in former times, if damage was done by one ship to another, the owners of that ship were liable, whether there was a pilot on board or not. It is only by virtue of Acts of Parliament, which render it compulsory upon them to take a pilot on board, that owners are exempted where the blame is attributable solely to the pilot. The question is, whether the pilot is to blame for the present collision, according to the true meaning and intention of the section cited. You are aware that, if the pilot is solely to blame for this collision, the owners of the General de Caen will be exonerated, and those who received the mischief will have no means of obtaining a remedy except by proceeding against the pilot himself-a remedy that is not very often effectual. The words of the Act are, "No owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship." Therefore, what we have to determine is, whether the collision in this case was occasioned by the fault of any qualified pilot acting in charge of such ship, for incapacity on the part of the pilot is clearly not alleged. Now, gentlemen, I should be very reluctant, and I think it would be contrary to all principles of justice, to extend the meaning of this section beyond its fair construction, because, though this Act of Parliament was framed, as you perceive, for the purpose of protecting the ship owners of this country, yet you must always bear in mind that it takes away a remedy from persons who have received injury; therefore its provisions must not be extended. The fault is "acting in charge of such ship:" no other fault committed by the pilot, whatever it may be, can in any degree be comprehended in the terms of the statute; and, perhaps, that will not be an unimportant observation when I come to look at the facts of the case and comment upon them. The facts are, as set forth by the barge, that she was run down by the General de Caen. It is admitted that the barge was run down by the fault of Brown, who was at the helm, and who, contrary to the pilot's orders, put the helm up, instead of luffing,