ouverture à l'action civile; and that this law did not apply aux engagemens, obligations, et emprunts contractés par le capitaine dans le cercle de ses fonctions. To amend this, was published the law of the 14th of June, 1841, enabling the owner to acquire, by abandonment of the ship and freight, a complete discharge non seulement de la responsibilité civile des faits et délits du capitaine, mais encore de tous les engagemens contractuels relatifs au navire et à l'expédition. The same law expressly refuses to one, who is both captain and owner, or part-owner, the privilege of abandonment, and discharge thereby from further liability; but then his liability is in the proportion merely of his share in the ship. By the law of this country, the privilege of limited responsibility is restricted to the owners of sea-going British ships. No owner of any such ship, or share therein, is liable to any extent whatever for loss or damage happening without his fault or privity, 1. Of or to any goods, merchandise, or other things whatsoever, taken in, or put on board, any such ship, by reason of any fire happening on board such ship ; 2. Of or to any gold, silver, diamonds, watches, jewels, or precious stones, taken in, or put on board, any such ship by reason of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper thereof has, at the time of shipping the same, inserted in his bills of lading, or otherwise declared in writing to the master or owner of such ship, the true nature and value of such articles.' 11 Boulay-Paty, Droit Marit. 270; Arrêt du Mars, 1818, par la Cour Royale de Rouen, cited by Pailliet, Man. de Droit, in his commentary on art. 216, Co. de Com. 23 Pardess, Droit Com. no. 663. 17 & 18 Vict. c. 104, § 106, 503, 504, 506, that it is limited to British ship, see post, p. 113. Under the operative words in the 26 Geo. 3, c. 86, § 2, which were shipped, taken in, or put on board, such vessel," it was held that goods destroyed by fire while on board a lighter not belonging to the owners of the ship, for the purpose of being con- 5 17 & 18 Vict. c. 104, § 503. But Under Merchant Owners of what Ships not liable, and when. When liable. To what extent. This right is individual. But where all or any of the following events occur without his actual fault or privity, that is to say, 1. Where any loss of life or personal injury is caused to any person being carried in such ship; 2. Where any damage or loss is caused to any goods, merchandise, or other things whatsoever, on board any such ship; 3. Where any loss of life or personal injury is, by reason of the improper navigation of such sea-going ship as aforesaid, caused to any person carried in any other ship or boat; 4. Where any loss or damage is, by reason of any such improper navigation of such sea-going ship as aforesaid, caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat ; In these cases, no owner of any such ship, or share therein, is answerable in damages to an extent beyond the value of his ship, and the freight due, or to grow due, in respect of such ship during the voyage, which at the time of the happening of any such events as aforesaid is in prosecution or contracted for, subject to the following proviso (that is to say), that in no case where any such liability as aforesaid is incurred in respect of loss of life or personal injury to any passenger, shall the value of any such ship, and the freight thereof be taken to be less than fifteen pounds per registered ton.' The privilege accorded by these sections of the statute, is the right of the individual owner, who is therefore not deprived of it in consequence of any loss or damage happening through the fault or with the privity of his co-owner; but the latter, although his liability remains as at common law, is not a description of a box as "one box Gibbs v. Potter, 10 M. & W. 70, Lord 2 Wilson v. Dickson, 2 B. & Ald. 2; the terms of the previous statute being in the plural number, occasioned some difficulty on this point, ibid. 13; The Triune, Wardell, 3 Hagg. Ad. 114. personally amenable to the jurisdiction of the Court of Admiralty.' The term "ship" standing alone in these sections, as it did in the operative section of the previous act,2 was construed by the Court of King's Bench,' as including "whatever is on board a ship for the object of the voyage and adventure on which she is engaged, belonging to the owners, whether the object be warfare, the conveyance of passengers or goods, or the fishery." Therefore the fishing stores on board a Greenland whaler,' and a chronometer on board any vessel,' have been severally held to be part of the ship, the value of which is the fund to cover the loss and injury sustained. This value is now decided to be the price the ship would have sold for, not at the commencement of the voyage, but immediately before the occurrence of the accident, in her then condition, but irrespective of the circumstances in which the vessel may have been at the time." Peculiar circumstances, however, will require the application of a different principle in estimating the value in particular cases. In a case before Vice-Chancellor Wood, it appeared that the African Steam Ship Co. had purchased the vessel there in question, in December, 1852, for 12,8971., and that she was totally lost on the 25th October, 1854, while carrying the mails to Fernando Po, being at the time insured for 10,000l. She was variously valued for the purposes of the suit, by some as high as 6,000l., by others as low as 4,000l., and by one valuer, appointed by both parties, Mr. Bailey, at 5,9007. The Vice-Chancellor said, "This is, I believe, the first case that has occurred upon the construction of the 504th section of the Merchant Shipping Act of 1854. The natural meaning of the words 'value of the ship' seems to be that which the ship would sell for. It would be opening too large a field of inquiry, if we were to adopt the particular value which the owner would put upon a ship used or wanted for a particular The Hope, Hepburn, 1 W. Rob. Ad. 154; The Volant, Merchant, 1 id. 355, 390; over-ruling, on this point, The Triune, Wardell, 3 Hagg. Ad. 114. 53 Geo. 3, c. 159, § 1. Per Abbott, C. J. Gale v. Laurie, 5 B. & C. 156, 164. 4 Ibid. Langton v. Horton, 5 Beav. 9, 20. 6 Wilson v. Dickson, 2 B. & Ald. 2; Ship,' what it includes, and at what time. Freight, what. purpose. On the other hand, the price for which a ship would sell, cannot always be adopted as a criterion of the value. It may often happen that a ship is adapted only to a particular trade which is monopolised by one company; the result of which would be, that the ship would be of no use to anyone else. In that case, it is obvious, that neither the special value nor the market value would be a test of its real value, and some other means of ascertaining it must therefore be resorted to there. But that is not the present case. There is here no suggestion that the ship, if sold, would have been useless to any one else. The amount of the insurance, though an important criterion of value, cannot, I think, be taken alone, as truly representing the value. Certainly the amount of the insurance cannot bind the plaintiffs by estoppel. If the Act had contemplated any such effect as that, I think it would have said so. In the present case, considering the price for which The Forerunner was originally purchased, and the number and length of the voyages she has performed,' I think I am bound to conclude that 10,000l. was considerably above her value. The fact of her being insured for so large a sum is very easily explained; the Company were bound by their contract immediately to replace the ship in case of loss, and they insured for such a sum as it would cost to replace her. Upon the whole, I think Mr. Bailey's is a very fair and liberal estimate, and as the legislature contemplated a liberal allowance being made, I shall adopt his estimate of the value, and order 5,900l. to be paid into Court.' "2 The freight available for the liquidation of damages, is that which was due at the time of the loss, and that which would have been due from and after that time in respect of the same voyage, if it had been completed with the cargo then on board, making no allowance in the estimate for jettison or other casual occasions of deduction. It is not the freight which was expected to be realised at the commencement of the voyage. It includes, however, all money paid in advance in the name 1 Estimated in length altogether at about 100,000 miles. 2 The African Steam Ship Co. v. Swanzy, 2 K. & J. 660; 25 L. J. (Ch.) 870, S. C. 3 Cannan v. Meaburn, 1 Bing. 435; Wilson v. Dickson, 2 B. & Ald. 2. 3 of freight to the owners of the ship.' It includes also the carriage of goods belonging to the owners of the ship, passage money, and also the hire due or to grow due under or by virtue of any contract, except only such hire, in the case of a ship hired for time, as may not begin to be earned until the expiration of six months after such loss or damage. And it extends to the gross freight earned, without deduction for wages, pilotage, towage, or hire of boats." 2 In respect of loss of life, or personal injury to any passenger, the value of the ship and freight is in no case to be taken to be less than fifteen pounds per registered ton." But if in that case or any other case of loss or injury, the ship is bailed in the Court of Admiralty for a larger sum than the proper value of the ship and freight, the suitor cannot avail himself of the surplus, notwithstanding the value of the ship and freight is insufficient to cover the actual loss and damage sustained." The owner of every sea-going ship or share therein, is liable Losses on diffein respect of every such loss of life, personal injury, loss of or rent occasions. damage to goods arising on distinct occasions to the same extent as if no other loss, injury, or damage had arisen.* The costs of suit form no part of the loss or damage to be Costs of Suit. compensated, and the owner is therefore liable for them personally, and without regard to the value of the ship and freight. A vexatious resistance to just claims would be encouraged by any other rule; but although the costs are thereby made a claim against the person, it is within the jurisdiction of the Court of Admiralty to award them." This limitation to the responsibility of the owners of British ships is strictly a provision of the municipal law, with a purely municipal policy for its object, the encouragement namely of British shipping, and is therefore not applicable to the owners of a foreign vessel, or to the owners of a British ship which is 1 Wilson e. Dickson, 2 B. & Ald. 2. 17 & 18 Vict. c. 104, § 505. The Benares, Brown, 7 Notes of Cases, Supp. 50; The Linda Flor, 4 Jur. N. S. 172; The Chimæra, cited ibid. 17 & 18 Vict. c. 104, § 504. The Richmond, West, 3 Hagg. Ad. 431; The Mary Caroline, 3 W. Rob. Ad. 101. 6 17 & 18 Vict. c. 104, § 506. 7 The Dundee, Holmes, 1 Hagg. Ad. 109; The John Dunn, Place, 1 W. Rob. 159; The Volant, Merchant, 1 W. Rob. 390. 8 Ex parte Rayne, 1 Q. B. 982. The Carl Johann, cited in The What persons not advantage. entitled to this |