C.P. Div.]

the loading, and no new liability being created by the bill of lading.(a)

DEMURRER to reply.

This action was brought to recover 247. 15s. 3d., a balance of freight due for the carriage of a cargo of coal from Cardiff to Rouen. The defendants were charterers and also consignees of cargo. The statement of defence alleged that the liability of the charterer had, under the charterparty, ceased when the ship sailed.

The material part of the charter-party set out in the statement of defence was as follows:

Freight to be paid at the rate of 8s. per ton of 20 wt. as weighed out at port of discharge, payable as follows: One-third (if required) in cash on signing shippers' bills of lading, less 2 per cent. for all charges, and the remaining in cash at current rates of exchange, less 2 per cent. discount on the completion of right delivery of the

cargo.

Burnyeat, Brown and Co.'s liability to cease when the ship is loaded, and advance of freight with demurrage at Cardiff paid. The captain to sign shipper's bills of lading for the cargo within twenty-four hours after the ship is loaded, &c. Ship to have lien on cargo for freight, &c.

The statement of defence then alleged that the vessel was duly loaded in accordance with the charter-party, and that all advance, freight. and demurrage, &c., had been duly paid at Cardiff, and that all conditions had been fulfilled necessary to entitle the defendants to be freed from their liabilities under the charter-party.

To this defence the plaintiff replied, admitting the charter-party as set out, and the due performance of the various stipulations thereof by the defendants, but alleging liability to pay the freight claimed under the bill of lading signed by the master under the charter-party, and which, so far as material, was as follows:

Shipped in good order and well conditioned by J. B. Ferrier, in and upon the good ship called The German Emperor s.8., whereof is master for the present voyage Dixon. 1093 tons... coal.. which are to be delivered unto order or to assigns, he or they paying freight for the same and other conditions, as per charter-party, &c.

To this reply the defendant demurred.

Wood Hill, for the demurrer.-When there is a difference between the charter-party and the bill of lading, it is the former which is to stand-Wegener v. Smith (15 C. B. 285). There an indorsee of a bill of lading was held liable to pay the demurrage by the terms of the charter-party, the bill of lading making the goods deliverable to order "against payment of the agreed freight, and other conditions of the charter-party," one of which was that demurrage (if any), should be paid. Here the charterer's liability ceased with the sailing of the ship. When there is a charter-party, and a subsequent

(a) If this decision were to be carried to its logical conclusion, uo charterer under such a charter party, who held bills of lading and was consignee of the cargo he shipped, would be liable for freight, and the only means a master would have of enforcing payment would be by keeping the cargo until he had received payment. It does not seem to have been suggested by or to the court that the existence of the right of lien under the charter-party and the bill of lading, the act of the master in delivering without enforcing his lien, and the acceptance of delivery by the consignees, taken together created an implied contract by the consignees to pay the freight on their getting the cargo. The fact of their being also charterers could scarcely affect their liability under such an implied contract, which arose at a subsequent period.-ED.

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bill of lading in pursuance of that charter-party, the rights of the parties are governed by the charter-party, and not by the bill of lading. Take the case of a ship chartered at a fixed rate, and the charterer afterwards finds that he cannot fill his ship at that rate, but gives bills of lading at a lower rate, there the bills of lading do not form a new contract between the charterer and ship

owner.

Maclachlan on Shipping, p. 480;

Faith v. East India Company, 4 B. & Ald. 630;
McLean v. Fleming, ante, vol. 1, p. 160; L. Rep. 2
H. L. (Sc.) 128.

Lanyon, for the plaintiff.-My contention is that there are here two coutracts, one between the shipowner and the charterer, and the other between the ship owner and the consignor. The charterparty says the defendants' liability is to cease with the loading of the ship; the bills of lading say it is to continue until the freight is paid, for the cargo is to be delivered to them, their order or assigns. And it has been held that, where the charter-party stipulates that the charterer's liability is to cease upon the loading of the ship, but the lien is to remain, the charterer is discharged but the consignee continues liable.

Kish v. Cory, ante, vol. 2, p. 543; 32 L. T. Rep.
N. S. 670; L. Rep. 10 2. B. 559;

46

French v. Gerber, L. Rep. 1 C. P. D. 737. (See post.) The words or other conditions," mean performing all other conditions," that is, the charterer is to perform all conditions against himself. Gray v. Carr, ante, vol. 1, p. 115; 25 L. T. Rep. N. S. 215; L. Rep. 6 Q. B. 522, 555; McLean v Fleming, ante, vol. 1, p. 160. Wood Hill, in reply.

Cur. adv. vult.

Feb. 14, 1826.-DENMAN J.-The plaintiff contended that the bill of lading was a different contract from that contained in the charterparty, that it imposed upon the defendants a did the charter-party, greater liability than and that from the liability upon it they are not absolved by the charter-party. Having looked at all the cases cited by the counsel on both sides, it appears to me that none of them bear exactly upon the present case. They all turned upon the liability of a charterer in respect of dead freight, and therefore throw little light upon the present case.

Here, the charter-party does not say that the charterer's, but Burnyeat, Brown, and Co's., liability is to cease. Those words are stronger to

release the defendants than the words used in the former cases, here the very names of the persons to be released are made use of.

I do not, however, decide upon that ground; but upon the effect of the two documents taken together. The bill of lading refers to the charterparty in these words, "paying freight for the same and other conditions as per charter-party." Reference must, therefore, be had to the charterparty for all conditions as to payment of freight, &c. The charter-party tells us when there is to be a cesser of liability of the defendants, when the cargo is loaded and the advances of freight paid and the bills of lading are ready to be signed, and provides for everything being ready for a settlement of freight on the landing of the cargo. The meaning of all these conditions is to prevent the liability of the defendants continuing after the loading is complete and all advance freight and demurrage have been paid. All these things were

done, and all other conditions precedent were performed by the defendants, and I am therefore of opinion that the demurrer is good.

As to the cases cited, French v. Gerber (L. Rep. 1 C. P. D. 737; and see post) appears to me to be the nearest to this; and there it was held that documents of this sort must be construed according to their plain meaning. The dicta in former cases as to the charterer's liability under the bill of lading and charter-party, are shaken by the recent case of Sanguinetti v. Pacific Steam Navigation Company (ante. p. 300; 46 L. J. 105, Q.B.; 35 L. T. Rep. N. S. 658). The two documents are to be read together, and the conditions as per charter-party" refers to the conditions as to payment of freight, one of which is the cesser of liability of the defendants. Hence the defendants are entitled to judgment ou the demurrer.

66

Demurrer allowed.

Solicitors for the plaintiff, Oliver and Botterell. Solicitors for the defendants, Ingledew, Ince, and Greening.

ADMIRALTY DIVISION.

Reported by JAMES P. ASPINALL and F. W. RAIKES, Esqrs., Barristers-at-Law.

Nov. 25 and 28, 1876.

THE CYNTHIA.

Damage-Collision entering dock-Dock-master's authority-Negligence of person in charge of ship-The Harbours, Docks, and Piers Clauses Act 1874 (10 Vict. c. 27), ss. 52, 53, 63—The London and St. Katharine's Dock Act 1864 (27 & 28 Vict. c. clxxviii.) s. 122-The St. Katharine's Dock Act 1825 (6 Geo. 4 c. cv.) ss. 100, 101.

When a vessel enters docks with the permission and under the general directions of the dockmaster, and within the space over which his authority by statute extends, those on board of her are bound to use diligence and care to carry out the directions of the dockmaster in such a manner as to avoid doing damage to other vessels. THIS was a cause of damage instituted in the City of London Court, by the owner of the skiff Emily, against the Mersey Steamship Company (Limited), the owners of the steamship Cynthia, for injuries sustained by the Emily, through the alleged negligence of those on board the Cynthia, whilst the latter vessel was going from the river into the St. Katharine's Dock on the 25th Nov. 1875. The case was heard by Mr. Commissioner Kerr on the 20th April 1876, when, after the examination of the witnesses, and the dock master, in cross.examination, having stated that if a rope had been made fast to a buoy to ease the vessel in it would have been of no use, and he would have ordered it to be let go, the learned judge gave judgment for the defendants with costs, on the ground that the dock company were liable for the damages, and not the owners of the Cynthia, that vessel being at the time and place of the accident within the district over which the authority of the dockmaster extends: but finding that the skiff was lying in a proper place, that neither the dockmaster nor the pilot knew that she was lying there, but that they might have known it if they had looked, that had they been aware of it they could and would have given

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orders, which would have avoided the collision. From this judgment the owner of the Emily appealed, and on the 25th Nov. 1876 the appeal came on for hearing.

The statutes on which the argument as to the control of the dockmaster turned were the Harbours, Docks, and Piers Clauses Act 1847 (10 Vict. c. 27.)

Sect. 2. The expression "The Special Act," used in this Act, shall be construed to mean any Act which shall be hereafter passed authorising the construction or improving of an harbour, dock, or pier, and with which this Act shall be incorporated. and the expression "the prescribed limits," used with reference to the harbour, dock, or pier, shall mean the distance measured from the harbour, dock, or pier, or other local limits (if any) beyond the harbour, dock, or pier, within which the powers of the harbour master, dock master, or pier inaster, for the regulation of the harbour, dock, or pier, shall by the special Act be authorised to be exercised. The expression "the harbour master," shall mean, with reference to any such dock, the dockmaster. Sect. 52. The harbour master may give directions for all or any of the following purposes (that is to say): "For regulating the time at which and the manner in which any vessel shall enter into, go out of, or lie in or at the harbour, dock, or pier, and within the prescribed limits (if any), and its position, mooring, or unmooring, placing, and removing, whilst therein: For regulating the position in which any vessels shall take in or discharge its cargo or any part thereof, or shall take in or land its passengers, or shall take in or deliver ballast within or on the harbour, dock, or pier: &c., &c.

Sect. 53. The master of every vessel within the harbour or dock, or at or near the pier, or within the prescribed limits (if any), shall regulate such vessel according to the directions of the harbour master, made in conformity with this and the special Act; and any master of a vessel who, after notice of any such direction by the harbour master served upon him, shall not forthwith regulate such vessel according to such direction, shall be liable to a penalty of not exceeding 201.

Sect. 63. As soon as the harbour or dock shall be so far completed as to admit vessels to enter therein, no vessel, except with the permission of the harbour master, shall lie or be moored in the entrance of the harbour or dock, or within the prescribed limits, and if the master of any vessel either place it or suffer it to remain in the entrance of the harbour or dock, or within the prescribed limits, without such permission, and do not, on being required so to do by the harbour master, forthwith proceed to remove such vessel, he shall be liable to a penalty not exceeding 51., and a further sum of 208. for every hour that such vessel shall remain within the limits aforesaid, after a reasonable time for removing the same has expired after such requisition.

The London and St. Katharine's Dock Act 1864 (27 & 28 Vict. clxxviii.

Sect. 3. Incorporates The Harbour, Dock, and Piers Clanses Act 1847 (10 Vict. c. 27), except certain sections. Sect. 10. Repeals, inter alia, The St. Katharine's Dock Act 1825 (6 Geo. 4, c. cv.)

Sect. 11. Saves, inter alia, certain sections of the St. Katharine's Dock Act 1825 (6 Geo. 4, c. cv.), set out in Sch. 4, part 2, from the general repeal of sect. 10.

Sect. 122. No ship or vessel shall lie at any of the buoys, or make fast to any of the dolphins, mooring posts or mooring craft of the amalgamated company in the river Thames, save only such as are intended to go into, or which within one hour last past came ont of, the docks, basins, locks, or cuts, except with the special permission of one of the dockmasters of the amalgamated company; and every master, pilot, or other person having the charge or command of any ship or vessel lying or moored, or having made fast to any of the buoys, dolphins, or mooring posts or craft, shall remove therefrom the ship or vessel under his command within one hour after being required so to do by the dockmaster or his assistants, or failing therein shall for every such offence forfeit not exceeding 20s. for every hour the ship or vessel remains at any of the buoys, dolphins, or mooring posts, or craft after the requisition.

Sch. 4, part 2 (inter alia) (6 Geo. 4, c. cv.) St. Katharine Docks Act, 1825. Sect. 100. And be it further enacted, that as soon as the said intended dock or docks, basin, and locks are so far completed as to admit ships, vessels, or craft to enter therein, no ship, lighter, barge, craft, boat, or other vessel shall lie within one hundred yards of the entrances of the said docks unless for the purpose of coming in or going out of the said docks, so that at all times the entrances may be kept clear and without obstruction, and over such space the dock master or dockmasters shall have control so far as relates to the placing or transporting, removing or stopping ships, barges, lighters, crafts, boats, and other ves. sels, any law, statute, or usage to the contrary notwithstanding: Provided, that nothing herein contained shall extend to prevent any ship or vessel, lighter or craft from lying in the river Thames alongside of any wharf or wharfs within the said distance of one hundred yards for the purpose of loading or discharging, so nevertheless as not to impede or obstruct the entrance into or departure from the said docks, basins, locks, or cuts.

Sect 101. And for the better making and preserving a free and clear passage and entrance from the river Thames into and out of the said docks, for all ships, vessels, lighters, barges, crafts, and boats of every description, be it further enacted, that if any master or other person having the charge or command of any ship, lighter, barge, craft, boat, or vessel of any description whatsoever, shall place or permit or suffer the same to remain in the river Thames within one hundred yards of any entrance to the said docks, basins, or cuts, or any of them, except as aforesaid, and shall not immediately on being thereunto required by the said dockmaster or dock. masters remove such ship, lighter, barge, craft, boat, or other vessel, every such master and other person so offending shall for every such offence forfeit and pay any sum not exceeding 51., and also any sum not exceeding 20s. for every hour that such obstruction shall remain after such notice; and in case the master or other person having the command of such ship, lighter, barge, craft, boat, or vessel, shall not remove such ship, lighter, barge, craft, boat, or vessel immediately upon being required so to do, it shall be lawful for the said dockmaster or dockmasters and his or their assistants to remove the same.

Webster, with him W. Pillimore, for appellants. -The fact that the Cynthia was within the limits in which those on board are bound to obey the lawful commands of the dockmaster, does not relieve them from the obligation of taking ordinary and proper precautions for the safety of other vessels. The dockmaster gives an order which they are bound to obey, but the method in which they carry it out is on their own responsibility; here there was negligence in the method of carrying it out; had they got a warp out to ease the stern of the Cynthia in, the accident would not have happened. They ought to have foreseen the consequences of coming in in the way they did, and are responsible for damage arising from their negligence in so coming in: (The Belgic (ante, p. 348; 35 L. T. Rep. N. S. 929.) The case of The Bilboa (Lush. 149; 1 Mar. Law Cas. O. S. 5) is not in point; there the question was, whether the collision was occasioned solely by the fault of the dockmaster. The truo rule is that laid down by the Judicial Committee of the Privy Council with respect to the duties of the crew of a vessel in charge of a pilot employed by compulsion of law; "In order to entitle the owners to the benefit of the exemption from liability, they must prove that the damage, for which it is sought to make them liable was occasioned exclusively by the default of the pilot. It is not enough for them to prove that there was fault or negligence in the pilot-they must prove, to the satisfaction of the court which has to try the question, that there was no default whatever on the part of the officers and crew of their vessel, or any of them, which might have

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been in any degree conducive to the damage:" (The Iona, L. Rep. 1 P. C, 426, 432; 16 L. T. Rep. N. S. 158; 2 Mar. Law Cas. O. S. 479.)

Milward, Q.C. and Bruce for respondents.The collision took place within the space over which the dock master's control by the Harbours, Docks and Piers Clauses Act (10 Vict. c. 27), s. 52. and the London and St. Katharine's Dock Act 1864 (27 & 28 Vict. c. clxxviii.), schedule 4, part 2 (6 Geo. 4, c. cv., ss. 100, 101) extends; those on board the Cynthia were, therefore, obliged to obey his orders, and did so: had they done anything he did not order, they would have been subject to a penalty: (The Bilboa, Lush. 149, 1 Mar. Law Cas. O. S. 5; The Exclsior, L. Rep. 2 A. & E. 268; 19 L. T. Rep. N. S. 87; 3 Mar. Law Cas. O. S. 151; The Broeder Trow, 17 Jur. 94.) Those on board the Cynthia could not see the Emily as they were coming into dock, and those in charge of the Emily must have been aware of the fact, and should have made their presence known. The Belgic (ante, p. 348; 35 L. T. Rep. N. S. 929) is not in point; there the dockmaster gave no order, but the master of the ship, acting on his own responsibility, accepted a suggestion which he ought to have seen would result in a collision. The damage is altogether too remote. The Cynthia could not have foreseen by any possibility that damage would result from the way she came into dock. If they had got out a warp, without the dockmasters' orders, they would have blocked the dock's entrance, and caused themselves and other vessels to lose a tide, and might have been liable for demurrage to them.

Webster, in reply, referred to Scott v. Shepherd (Smith's Lead. Cas. 6th edit. p. 417) to show that the damage was not too remote.

Cur. adv. vult. Nov. 28. 1876.-Sir R. PHILLIMORE.-This is an appeal from the City of London Cours.

A small skiff, the Emily, was lying underneath a crane on the St. Katherine's wharf in the river Thames, taking on goods, and outside of her lay a steamer called the Vigilant. Outside the Vigilant lay two barges. A steamer called the Cynthia, coming into the St. Katherine's dock, fell with her port side against the barges, drove the barges into the Vigilant, breaking her bobstay and her figure head, and also driving the Vigilant into the skiff, to which she did considerable damage. The learned judge found as a fact that the skiff was in no way to blame, and had a right to recover against the dock company, but not against the Cynthia, against whom the action was brought. In his opinion the Cynthia was bound by the statutes to which I will presently refer, strictly to obey orders of the dockmaster, and to take no measures except those which he prescribed; that those orders brought about the collision, and therefore the Cynthia was not to blame, and he dismissed her from the suit.

There are two points raised for my consideration: first, was the Cynthia guilty of negligence which caused this collision with the skiff; secondly, was she relieved from responsibility by being under the control of the dock company, whose orders she obeyed.

As to the first point, I have conferred with the Trinity Masters, and will state their opinion, in which I agree. It is to this effect. The Cynthia ought to have had a rope passed to the middle buoy, to have been used if necessary. If she was found

to be swinging on the barges, the rope would have enabled her to keep her quarter off the barges. She was dropping up with the tide, and swinging alongside of the barges. The pilot saw that he would come into collision with the barges, and pointed it out to the dockmaster. The pilot had no right to calculate on touching the barges so lightly as not to cause damage to them or to vessels on the other side of them. With respect to the position of the skiff, we think that she was not in an improper place, but in the exercise of her clear right in lying where she was. As to a contention that if a rope had been there the Cynthia could not have got in that tide, in the first place that would not justify her in doing damage to another vessel; in the second place, the Trinity Masters are of a wholly different opinion, thinking, on the contrary, that the rope would have assisted the Cynthia to go in without squeezing or damaging any other vessel.

As to the second point the 10 Vict. c. 27, s. 52, and the local Act of the London and St. Katherine Dock (27 & 28 Vict. c. clxxviii), Sch. 4. part II., are relied upon by the respondents. The latter Act extends the distance within which the harbour master's authority can be exercised to a hundred yards. The former statute provides that the harbour master may give directions for regulating the time at which, and the manner in which, any vessel shall enter into, go out of, or lie in or at the harbour, dock, or pier, and within the prescribed limits; that is to say, the harbour master's authority extends to the manner in which the vessel is to enter the dock, and her position when therein, and for a disobedience to his directions, the 53rd section imposes a penalty of 201., but the Act did not, in my judgment, intend to exempt the pilot or captain of the vessel from the duty of navigating her with proper caution, so far as other vessels are concerned; in other words, the orders of the harbour master are to be executed with care, and not negligently, as in the present case.

In the analogous case of exemption from liability by reason of having a pilot on board, it has been held by the Privy Council that in construing the Pilotage Acts it is not enough for the owners to prove that there was fault or negligence in the pilot, they must prove to the satisfaction of the court which has to try the question that there was no default whatever on the part of the officers and crew of their vessel, or any of them, which might have been in any degree conducive to the damage: (The Iona, 16 L. T. Rep. N. S, 158; L. Rep. 1 P. C. 432; 2 Mar. Law Cas. O. S. 479).

The authority of the Bilboa was cited by the respondents (Lush. 149; 1 Mar. Law Cas. O. S. 5), but that was a case decided on demurrer. I have looked at the papers and find that the defence was as follows: 66 And the defendants' proctor says, that before and at the time of the damage ccmplained of, those on board the Bilboa were acting under the directions given by the dockmaster of the said Victoria Docks, for the said vessel to enter the said docks, and within the aforesaid limits of the authority of the said dockmaster, and that the said damage, if occasioned by any mismanagement of the Bilboa, was solely occasioned by the default of the said dockmaster, and that the owners of the said vessel were not responsible in law for the same." It was a datum in that case that the

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damage was occasioned solely by the dockmaster, whereas in this case it appears that the damage was not caused solely by the orders of the dockmaster, but by carelessness in their execution.

I must reverse the sentence of the court below, and pronounce the Cynthia to blame for this collision. Costs for appellant.

Solicitor for the plaintiff, J. A. Farnfield. Solicitors for the respondents, Flux and Co. [NOTE.-The recent case in the House of Lords on compulsory pilotage (Clyde Navigation Company v. Barclay, L. Rep. 1 App. Cas. 790; see post), in which the judgment in The Iona (16 L. T. Rep. N. S. 158; L. Rep. 1 P. C. 426), quoted in the above judgment is commented on, was not at this time reported. The effect of that judgment is, where the defence of compulsory pilotage is set up, to throw the onus of proving contributory negli gence on the part of the shipowner on the plaintiff, instead of requiring the shipowner to prove that he acted entirely in obedience to the pilot's orders.]

Feb. 14 and 15, 1877. THE JULIA FISHER.

Collision-Counter claim-Security for costs by defendant-Practice.

A defendant in a collision cause making a counterclaim for the damage sustained by his cwn vessel, must, if he be resident out of the jurisdiction, give security for the costs, not merely of his counterclaim, but of the whole action.

If he make default in giving security for costs pursuant to order, he will have his counterclaim dismissed.

THIS was an action of collision brought on behalf of the owners of the Norwegian barque Velox against the barque Julia Fisher for the recovery of damages caused by a collision between the two vessels on 2nd Aug. 1875.

The owners of both vessels were resident abroad, out of the jurisdiction. The Julia Fisher was arrested, and her owners appeared and gave bail in the sum of 29501., which was the full value of the vessel. The owners of the Julia Fisher required the plaintiffs to give security for the costs of the action, which was given to the amount of 3001. The plaintiffs then delivered their statement of claim alleging that the collision occurred by the negligence of the Julia Fisher, and claiming damages. The owners of the Julia Fisher thereupon delivered a statement of defence and counterclaim, denying the negligence of the Julia Fisher, and alleging the negligence to be that of the Velox, and claiming damages against the Velox in respect of the collision, The owners of the Velox were then required to, and did give bail, in the sum of 500l. to answer the damage sustained by the Julia Fisher. A summons was then taken out on behalf of the plaintiffs (the owners of the Velox), calling upon the defendants (the owners of the Julia Fisher) to show canse why the defendants should not give security for costs in the sum of 3001. This summons being referred by the Registrar to the court, the judge, after hearing counsel on both sides, directed the defendants to give bail in the sum of 150l. to answer the plaintiffs' costs. The defendants then gave security in the sum of 150l. to answer judgment in the action in respect of their counterclaim, and notice was

given on 12th Feb. 1877, that such security had been given.

Feb. 14.-The action came on for hearing. Milward, Q.C. and W. G. F. Phillimore for the plaintiffs contended that as the defendants had only given security for the costs of the counterclaim, they had not complied with the order, and their counterclaim must be dismissed.

E. C. Clarkson and Myburgh for the defendants contended that there was no obligation upon defendants to do more than give security for the costs of the counterclaim, and the order did not extend further. Under the old practice, before the Judicature Acts 1873 and 1875, a defendant would only have given security for the costs of his cross action, which was the same as the counterclaim, and he could not have been called upon to give security for the costs of the principal action. There is nothing in the above Acts which alters the practice.

The COURT directed that the action should proceed to hearing, but intimated that if the defendants were not prepared before judgment to give security for all the plaintiffs' costs, the counterclaim would be dismissed.

Feb. 15.-The action was further heard, and on the plaintiffs' case being ended

Clarkson, for the defendants, stated that the defendants did not propose to give security for costs other than for their counter-claim.

Sir R. PHILLIMORE-In this case-one of damage by collision-a question has been raised as to the extent to which one of the parties to the action should give security for costs.

The Julia Fisher having been arrested at the suit of the Velox, bail was given in the action, not however in the full amount claimed, but only to the extent of the value of the ship.

The owners of the Velox, the plaintiffs, being foreigners, were then called upon to give, and did give, security for costs, and subsequently, when a counter-claim was set up by the defendants, they gave further bail for the full amount of that counter-claim. By thus setting up a counterclaim, the Julia Fisher becomes as much a plaintiff as the party who originated the suit. The pleadings delivered, the evidence to be given, and the arguments of counsel, will all be common to the claim and counter-claim, and in principle it is not easy to distinguish between the costs incident to the one or the other. Under these circumstances the plaintiffs contend that as the owners of the Julia Fisher are foreigners likewise, they (the plaintiffs) are entitled to security for costs, and that the security must be for the costs of the action generally. The adverse contention, however, is that the Julia Fisher should only give security for costs occasioned by the counter-claim, not for the whole costs of the action. If this contention prevailed, it is manifest that the position of the Julia Fisher would be the better of the two, because if the Julia Fisher wins, she will have security for damages and all costs; whereas, if the Velox wins, she will have security for damages, and only a small portion of her costs. This would clearly be inconsistent with equity.

It may perhaps be said that to require security for the whole costs of the action is requiring the Julia Fisher, quâ defendant, to give security for costs; but it must be remembered that although in actions in personam security is not required of

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a defendant, in actions in rem a different practice has always prevailed.

The action is brought, and bail is given as a rule in a sum to cover damages and costs, and both damages and costs are constantly recovered from bail so given by a defendant.

After some consideration, therefore, I arrive at the conclusion that as all the issues now constitute, so to speak, one cause, the party liable to costs is liable to the costs of the whole suit, and the party liable to give security for costs is liable to give security for the whole costs of suit, subject to any special order which the court may in any particular case think proper to make.

In the present case the order already made must be adhered to.

The party being a foreigner, who has set up a counter-claim, and asked for a decree for damages in his own favour, must give security for costs generally, or his counter-claim must be struck out.

In a collision cause, although the defendant is entitled, upon admission of liability and payment into court of the amount of his liability under the Merchant Shipping Act 1862, s. 54, to a stay of proceedings as against himself, plaintiffs having separate interests may, at the defendant's cost, proceed to a reference to settle the respective amounts due to them, and may tax their costs.

THIS was an action of collision brought by the owners and the master and crew (proceeding for their personal effects), of the Mary, the owners of the cargo, against the Expert. After service of the writ, the owners of the Expert appeared, and before any pleadings were delivered applied to the court to stay all further proceedings against the defendants (except for the purpose of taxing costs) upon their admitting liability and paying into court a sum sufficient to cover the amount to which they were entitled to limit their liability under the Merchant Shipping Act 1862 (25 & 26 Vict. c. 63), s. 54, viz., 8l. per registered ton, and a sum to cover interest.

The plaintiffs had given particulars of their names and the nature of their several claims. An affidavit of the defendants in support of the application admitted liability, but alleged that the collision occurred without the actual fault or privity of the owners of the Expert, and that there was no loss of life.

J. P. Aspinall, in support of the application, stated that the defendants were willing to take the risk of other claims being made, as they believed the particulars furnished gave all the persons entitled to claim, and contended that as the course proposed would be a great saving of expense, and the plaintiffs could not recover more than the amount offered, the order should be made.