ships as well as to British ships, its object being to give to owners of goods a practicable remedy for breach of contract, where formerly in the great majority of cases there was no available process in consequence of the shipowner being out of the jurisdiction (i). duty or contract. As the right to sue is confined to the owner or consignee or assignee of the bill of lading of goods, the breach of duty or contract must, it is submitted, be in relation to the goods and connected with damage to them (k). It is a breach of Breach of duty within the words of the section for the master, at the same time that he claims a lien on the cargo for the amount of freight and general average, to withhold such particulars within his knowledge as are necessary for the computation of the amount of freight and general average (1). It has also been held to be a breach of duty for the master to refuse to deliver goods to a vendor who has a right to stop the goods in transitu and asserts such right (m). In order to sustain a claim for breach of contract, privity of contract must be established between the plaintiff and the owner of the ship or his agent (n). But the court will entertain a claim for damage to cargo arising from a breach of the contract con -: (i) See The Ironsides, Lush. 458. In this case Dr. Lushington observed :"Many foreign ships came into this country and did not deliver the goods according to the bills of lading. The owners and consignees of cargo then suffered great loss, and had no prac ticable remedy; for though the shipowner, if in England, might have been used for breach of contract, in the very great majority of cases that remedy was wholly unavailable. It appears, too, that in some cases, if not nearly in all, the owner of a British ship carrying cargo to a foreign country was liable to have his ship there seized for any breach of his contract as carrier. remedy the grievance I have mentioned, and to establish a reciprocity with foreign merchants, this 6th section was inserted in the statute." In The Don To Francisco, Lush. 468, a suit was insti (k) "I entertain very great doubt (1) The Norway, Br. & L. 226. (m) Tigress, Br. & L. 38. In the case of The Santa Anna, 32 L. J. Ad. 198, an omission by the master to enter certain particulars in his protest was held, under the circumstances of the case, not to constitute a breach of duty within the meaning of the statute. (n) The Norway, Br. & L. 226; but owner of ship. tained in a bill of lading signed by the master, although at the time of the shipment of the cargo the vessel had been chartered by the owner to another, but not so as to give up possession of the vessel, if it is not proved that at the time of shipment the shipper had notice of the charter, for under such circumstances the master is to be considered as the agent of the owner (o). The holder of a bill of lading has no right to sue in respect of breaches of the terms of a charterparty to which he is no party, and which are not incorporated in the bill of lading (p). Domicile of The Court cannot proceed in the suit if it is shown to the satisfaction of the Court that any owner or part owner of the ship proceeded against is domiciled in England or Wales. It would seem that by the word owner is meant the owner at the time of the damage done, and that the word domiciled is to be understood in its strict legal sense (q). As the remedy given by the statute depends upon the domicile of the owner see a passage in the judgment, at page (0) The St. Cloud, Br. & L. 4. See (p) The Norway, Br. & L. 226. In a bill of lading, where freight is made "payable as per charter-party," these words incorporate into the bill of lading the clauses of the charter-party which relate to the amount of freight, but only for the purpose of computing the amount of freight, not for the purpose of transferring to the holder of the bill of lading the benefit of covenants found in the same clauses of the charter-party, but not affecting the amount of freight. Ib. (9) See The Ella A. Clark, Br. & L. 32, where the owner of the ship, at the time of the institution of the suit, was then domiciled in England, but the person who was the owner at the time of the accruing of the causes of action was domiciled abroad: the Court entertained the suit. And see The Pacific, Br. & L. 243. These cases are decisions on the 5th section of the Admiralty Court Act, 1861, but the reasons on which the judgments proceed seem to be applicable to the section now under consideration. As to the meaning of the word owners, see The Spirit of the Ocean, Br. & L. 336; aud see post, p. 112, n. (l). of the ship at the time of the institution of the suit, it seems that it was not intended by the Legislature that a maritime lien, in the proper sense of the term, should be created for damage to cargo; for a maritime lien accrues from the From what instant of the circumstances creating it, and not from the time the date of the intervention of the Court (). And it appears, accrues. therefore, that the claim of the plaintiff in cases of damage to cargo accrues only upon the institution of the suit, and is subject to claims subsisting on the ship at the time of suit. claim In cases where a decree is pronounced in favour of the Damages plaintiff, the practice of the Court is to refer the damages to and set off. the registrar and merchants, whose duty it is to assess the damages according to the ordinary rules recognised by the courts of common law (s). The Court has no jurisdiction to entertain by way of set-off a claim by the shipowner for freight improperly deducted, there being in our Admiralty law no set-off, in the strict sense of the term, save in the exceptional case of suits for mariners' wages (t). But where there are cross claims, the Court will endeavour not to disturb any security which either party may have for his demand. without substituting an equivalent (u). (r) The Pacific, Br. & L. 246; The Troubadour, L. R. i Ad. 302; The Scio, id. 355; but see The Ella A. Clark, Br. & L. 32. (s) The St. Cloud, Br. & L. 4. (t) The Don Francisco, Lush. 408. Neither has the owner of the goods a right to deduct freight for damage to the goods see The Salacia, Lush. 578; Dakin v. Oxley, 15 C. B. N. S. 646; Meyer v. Dresser, 16 C. B. N. S. 646. (u) The Norway, Br. & L. 242. In this case the following directions were given :-"To prevent further unneces sary litigation, I will state how I think the litigant parties are circumstanced. The master has a lien on the cargo for his freight and average-an unliquidated amount. The holder of the bill of lading has the ship as security for the damage (if any) which he has sus tained. The Court will not disturb the security which either party has without Costs. The statute provides that if in any cause of damage to cargo the plaintiff do not recover twenty pounds, he shall not be entitled to any costs, unless the judge shall certify that the cause was a fit one to be tried in the Admiralty Court (x). fendants should give bail for the de- (x) Admiralty Court Act, 1851, section 6. CHAPTER VI. SALVAGE. SALVAGE is the reward (a) payable for services rendered in Definition saving property lost at sea (b), or in saving any wreck, or in of salvage. rescuing a ship or boat, or her cargo, or apparel, or the lives of the persons belonging to her from loss or danger (c). The subject of salvage falls peculiarly within the cognizance of the Court of Admiralty, for the courts of common law do not possess jurisdiction efficiently to adjudicate on salvage claims (d). Before, however, proceeding to discuss the juris (a) But the word salvage is not always used in this sense; it is sometimes employed to signify the property saved, and it is sometimes applied to designate the services rendered. On the subject of salvage generally, see Handy-Book on The Law of Salvage, by T. H. James. (b) I take it to be clear that whenever the service has been rendered in saving property on the sea or wrecked on the coast of the sea, the service is in the sense of the maritime law a salvage service. Per Mr. Justice Story, The Emulous, 1 Sumner, 210. See A Raft of Spars, 1 Abb. Adm. 291. (c) This definition embraces the present statutory provisions as to salvage contained in the 458th and succeeding sections of the Merchant Shipping Act, 1854, the 49th section of the Merchant Shipping Amendment Act, 1862, and the 9th section of the Admiralty Court Act, 1861. See post. (d) The courts of common law possess jurisdiction to entertain a claim for work and labour in and about the saving of a ship, and in that form they may entertain an action for salvage. Newman v. Walters, 3 B. & P. 612; Chitty on Pleading, vol. 2, 4th ed., p. 68, note (c). But there are many cases in which salvage services are rendered, where the action for work and labour at common law cannot be maintained. Lipson v. Harrison, 22 L. T. 83; Nicholson v. Chapman, 2 H. Bl. 251; Castellain v. Thompson, 13 C. B. N. S. 105. It does not appear that in any case the plaintiff could at law recover more than ordinary remuneration for his services. Where salvage has been paid to the master of the salving vessel, a seaman cannot maintain an action against him at common law to recover his share. Atkinson v. Woodhall, 1 H. & C. 170. It may be a question whether the jurisdiction of |