1826.

The 53 G. 3. c. 159. s. 1. is to be construed as if the

words, "with tenances," had

all her appur

been inserted after "ship or vessel," as in sect. 7.

Whatever is on board

a ship for the object of the voyage and ad

venture on which she is engaged, belonging to the

owner, consti

tutes a part of

the ship and her appurte nances within

the meaning of the 53 G. 3.

c. 159., and the

GALE against LAURIE and Others.

THE plaintiff declared in prohibition, that by an act

of the 53 G. 3. c. 159. entitled "An act to limit the responsibility of ship owners in certain cases," it was amongst other things enacted, that no person or persons who was, were, or should be owner or owners, or part owner or owners of any ship or vessel, should be subject or liable to answer for or make good any loss or damage arising or taking place by reason of any act, neglect, matter or thing done, omitted, or occasioned without the fault or privity of such owner or owners, which might happen to any other ship or vessel, or to any goods, wares, merchandize, or other things being in or on board of any other ship or vessel, further than the value of his or their ship or vessel, and the freight due

or to grow due for and during the voyage which might owner is liable be in prosecution or contracted for at the time of the

to the extent

of the value

thereof for da

mage done to another vessel in the manner described by

that act.

happening of such loss or damage. The declaration then stated, that on the 9th of March 1820, the plaintiff was owner of a ship or vessel called the Dundee, then sailing on the high seas, bound on a certain voyage to the Greenland fisheries, with certain fishing stores on board thereof, consisting of harpoons, lances, spears, and whale lines, for the purpose of catching whales and other fish on the said voyage, and casks and cisterns for containing the oil and blubber proceeding from the said whales and other fish; and that the Dundee did then, without the fault or privity of such owner, come in collision with and sink a certain other ship or vessel called the Prin

cess

cess Charlotte, then also sailing on the high seas, bound on a certain voyage to the port of London, of which ship the defendants were the owners: that the defendants entered an action in the High Court of Admiralty, and that thereupon the Dundee, her tackle, apparel, and furniture were valued and appraised at the sum of 2685l., and the fishing stores at the sum of 22367., and that bail was given in the sum of 90007. without prejudice to and expressly reserving the question as to the liability of the plaintiff in such action beyond the sum of 2685l., being the agreed value of the Dundee, her tackle, apparel, and furniture. But that although the court of admiralty had no power or authority whatever under the statute aforesaid, or any other statute or law of this realm or otherwise, to make the fishing stores of any ship or vessel liable to answer for or make good any loss or damage arising or taking place by reason of any such neglect, matter, or thing done, omitted, or occasioned without the fault or privity of the owner or owners of such ship or vessel, which might happen to any other ship or vessel, or to any goods or merchandize or other things being in or on board of any other ship or vessel, yet the court of admiralty decreed the said fishing stores on board the Dundee as aforesaid to be liable to contribution against the form and effect of the said statute; and that the defendants had not ceased to prosecute their suit in the said court of admiralty, to the great damage of the plaintiff, and against the king's writ of prohibition to them delivered, and, therefore, the plaintiff as well, &c. brought his suit, &c. Plea, suggesting as ground for a consultation, that the said fishing stores so being on board the said ship or vessel in the declaration mentioned, called the Dundee, at the time of the happening

of

1826.

GALE

against LAURIE.

1826.

GALE against LAURIE.

of the loss or damage in the declaration mentioned, were, and are part and parcel of the said last mentioned ship or vessel, appurtenances, and freight, according to the true intent and meaning of the said act of parliament in the declaration mentioned and set forth, and that the value of the said fishing stores did form part of the value of the said ship or vessel, appurtenances, and freight, within the true intent and meaning of that act. Issue thereon. At the trial before Abbott C. J., at the London sittings, the jury found a special verdict, the material parts of which were as follows:

At the time of the passing of the said act of parliament, the fishing stores belonging to ships employed in the Greenland fisheries, consisted, and still do consist of, harpoons, lances, spears, lines, boats, and various other things for the purpose of catching whales and other fish, and preparing their blubber, and of casks for containing and bringing home to England the blubber and oil proceeding from the said whales and other fish caught upon the voyage; and the value of such casks was, and is generally, one half of the whole value of such fishing stores. In the outward voyage of the said ships the said casks were, and are carried out on board the ships ready for receiving the blubber and oil, and are used for several voyages; but in ships employed in the South Sea fisheries, (which are provided with similar fishing stores,) the staves and hoops of the casks for the purpose of containing the oil obtained or the principal part thereof, were and are carried out in packs, and were and are made up into casks in the South Seas; and the oil so obtained by such last mentioned ships, when brought home to this country, was and is sold in the said casks, the purchasers thereof purchasing and paying

for

for such last mentioned casks with such last mentioned oil. According to the usage of trade, where policies of insurance have been effected on ships, their tackle, apparel, munition and furniture, which ships are employed in the Greenland fisheries, and losses have happened to such ships and their fishing stores, such stores have not been, and are not covered by such policies, nor has a loss upon the fishing stores been paid for by the underwriters upon the ships having the same on board, and when a particular average loss has happened upon any such policy, the fishing stores on board such ships have not contributed to such particular average, but it is the practice that such fishing stores are insured in separate policies or by separate valuations, and the said usage and custom of merchants existed long before and at the time of the passing of the act of parliament. It is usual for ships employed in the Greenland fisheries, during the fishing seasons, to make intermediate voyages to the West Indies and Honduras, or the Baltic sea, or to be used in the coasting trade of this kingdom, and when such ships go such intermediate voyages, or are so employed in the coasting trade, the said fishing stores are all landed and left behind; and such ships, whilst employed in the Greenland fisheries, are in all respects fitted and equipped with tackle, apparel, boats, and stores for the ordinary purposes of navigation, and have every thing belonging to ordinary ships, and are in all respects capable of navigating the seas and performing voyages independently of and without the fishing stores. According to the usage of the herring fishery upon the east coast of this kingdom, and so northward, the owners or the masters of the ships employed in the said herring fishery have provided one share of the nets and

other

1826.

GALE

against LAURIE.

1826.

GALE against LAURIE.

other fishing stores put on board such last mentioned ships, and the crews of the said last mentioned ships have provided the remaining shares of the said nets and other fishing stores; but when such ships have been hired by merchants for the fishing season, (as has frequently been the case,) one share of the nets and fishing stores have been provided by the owners, another by the crew, and the remainder by the merchants, and the usage of the said herring fishery was the same before and at the time of passing the said act of parliament.

The case was argued at the sittings in banc before Easter term 6 G. 4. by

Campbell, for the plaintiff. Upon the facts found by the special verdict, the fishing stores cannot be considered as appurtenances to the ship, but to the cargo; they are not wanted for the purposes of navigation, but are necessary to the procuring and bringing home a cargo. Suppose the act had said that a party should be liable to the extent of the cargo and its appurtenances, it could not be contended that these stores were not to: be taken into consideration, and if they are appurtenant to the cargo, they cannot also be appurtenant to the ship. It is found by the special verdict, that such stores would not be covered by a policy upon the ship, her tackle, apparel, and furniture; and those are, properly speaking, the appurtenances of a ship. Suppose the ship were chartered, and the stores did not belong to the owner of the ship, or that the stores were the joint property of the owner of the ship and other persons, as in the herring fishery, it could not then be said that the stores passed with the ship; yet if appurtenances in one case they must be so in all. The act should, therefore,

be