which could be the foundation of the complaint contained in the first count, For anything that appeared the defendant might have been ignorant of any defects in the ship, and the plaintiff himself might have examined the ship, and become perfectly aware of her condition before engaging himself as a seaman on the voyage in question. Even if both parties were aware of the un. geaworthiness, it might have been the intention that the plaintiff, undergoing greater hardships and labour in such a vessel, should be remunerated by higher wages. If the doctrine contended for was correct, the defendant, though free from any blame, would be liable to an action at the suit of every seamnan on board in Cuse a butt happened to start while the vessel was going out of Plymouth Sound. There was no instance of such an action being brought, there was no decision authorising the doctrine now contended for, nor had any principle been urged upon which such an action could be maintained. The only authorities cited were certain dicta of the learned judges in the case of Gibson v. Small,” but it was not the intention of those judges to lay down the law that in all these cootracts there was an implied warranty that the ship was seaworthy, as in the case of a policy of insurance, or that such an action as the present could be maintained. That case therefore was no authority. The authorities were rather the other way, for, if the principle involved in “Seymour v. Maddox” and “ Priestley v. Fowler” were applied to the present case, it would show that the action could not be maintained.

Mr. Justice COLERIDGE and Mr. Justice WIGHTMAN expressed themselves to the same effect.

Judgment for the defendant.


(Before the MASTER of the Rolls.)

ALEXANDER V. SIMMS AND ANOTHER. This suit was instituted for the purpose of establishing the rights of the parties, relative to their respective shares in a ship which had been chrtered to Patagonia for guano, and the cargo of which was to be delivered in Liverpool. The plaintiff, it appeared, had one eighth share in the ship, and the defendant Simms owning the remaining seven-eighths, had become insolvent, and executed a deed of assignment in favour of his creditors, previously to which, however, he had mortgaged his shares in the vessel to a gentleman of the name of Taylor. The cargo had been sold under an arrangement to abide the decision in the suit. The plaintiff Alexander not having been a party to the negotiation relative to the last voyage of the ship to Patagonia, Taylor claimed, as mortgagee of Simms, seven-eighths of the gross profits on the cargo, whereas the plaintiff contended he was only entitled to that amount of the net profits, and ought to be held liable, in common with himself, to bear his proportion of the expenses attendant on the undertaking.

The Master of the Rolls decided that Taylor, as mortgagee of Simms, was only entitled to the share that Simms could have claimed, and being therefore liable, in common with the plaintiff, to contribute towards the expenses of the voyage, he could only claim his proportion of the net, and not of the gross profits of the same.

Mr. Roupell, Mr. R. Palmer, Mr. Follett, Mr. Rogers, Mr. Prior, Mr. Bevir, and Mr. Jones appeared in the case.

COURT OF QUEEN'S BENCH, WESTMINSTER, JAx. 12, 1854. (Sittings ir Banco, before. Lord CAMPBELL, and Justices Coleridge, WIGHTMAN,

and ERLE).


Sir F. THESIger moved for a rule, calling upon the plaintiff's to show cause why the verdict which had been given in their favour should not be set aside and a new trial granted, upon the ground that the verdict was against the

[ocr errors]

evidence. The action was brought by the owners of a collier brig named the Harewood to recover damages from the General Steam Navigation Company for the loss of the Harewood, which it was alleged was sunk at the mouth of the river Thames on the night of the 4th of October last, in consequence of the negligence of the defendants servants while navigating one of their steamers named the Trident. The two vessels came into collision on the night in question near the Mouse Light and about seven miles below the Nore, and the consequence was that the Harewood, after striking the Trident upon the starboard bow, sank almost immediately. The master and one out of the seven seamen on board the collier were saved and taken on board the Trident. The learned counsel now contended, upon an examination of the evidence, that the verdict ought to have been the other way.

Lord CAMPBELL.--You may take a rule.
Rule nisi granted.


This was one of four actions brought by different parties against the defendant, a shipowner at Liverpool, to recover various sums for work done and stores supplied to a vessel named the Progress, at the latter end of the year 1852. At the trial which took place at Guildhall, before Lord Campbell, at the sittings after last term, the plaintiff obtained a verdict.

Mr. BRAMWELL, Q.C., now moved for a rule nisi for a new trial, upon the ground that the verdict was against the weight of the evidence.

Lord CAMPBELL said, the learned counsel might take a rule, and inquired whether he (Mr. Bramwell) intended to move in the other cases?

Mr. BRAMWELL said, he had not yet had an opportunity of consulting with his client upon that subject. Subsequently, the matter was again mentioned, when it was understood rules were granted in all the cases.

Rule nisi granted.

COURT OF COMMON PLEAS, WESTMINSTER, FEB. 15, 1854. (Sittings at Nisi Prius, after Term, in London, before Lord Chief Justice JERVIS

and Common Jurics.



In this case the plaintiff and defendant are both iron merchants in the city of London, and the plaintiff brought the present action to recover 1,1451. 28. 8d., damages which he alleged he had sustained in the purcbase of a ship called the Glasgow from the defendant, the condition of which he alleged the defendant had misrepresented.

Mr. Serjeant Byles and Mr. Petersdorff appeared for the plaintiff, and Mr. Watson, Q.C., and Mr. Prentice for the defendant.

It appeared that the vessel in question was formerly the property of a Mr. Oliver, of Liverpool, of whom the defendant purchased it for 3,5001., on a representation that 1,0001. had been spent upon her in repairs, and that she had been new coppered. The defendant then chartered the vessel from London to Cardiff, and thence for a foreign voyage. Before the vessel sailed the defendant sold her to the plaintiff för 5,0001., taking payment in bills, and representing the vessel to the plaintiff as she had been represented to him by Oliver. On the arrival of the vessel at Cardiff it was discovered that she was not seaworthy, and she was obliged to be sent back to Bristol to refit. The cost of the repairs and the demurrage she incurred under the charter-party amounted to the damages the plaintiff now sought to recover.

For the defence it was contended that the representation which had been made to the plaintiff as to the condition of the vessel had been made bond fide; and that the defendant was not therefore responsible for the unsound. ness of the ship, which was not disputed.

His LORDSHIP, in summing up, left it to the jury to say whether the vessel was unsound within the defendant's knowledge when he made the representations respecting her condition to the plaintiff now complained of. If she was, they must find for the plaintiff; if not, for the defendant.

The jury found a verdict for the defendant.




This was an appeal from a decision of the Master of the Rolls, and raised this very important question, whether, where there are joint owners of a vessel in unequal shares, and one of them mortgages his share, and then the two enter into a joint venture in the same proportions as they are interested in the vessel, and the ship returns to England with a cargo, and before it is discharged the mortgagee takes possession of the vessel, he can take the same proportion of the freight as his mortgagor has in the cargo and vessel, without paying the same proportion of the expenses ? Or whether, on the other hand, the expenses are not the first charge on the produce of the freight or cargo ?

Mr. Roupell, Mr. J. P. Wilde (of the common law bar), and Mr. Bevir supported the appeal ; Mr. Bacon and Mr. Rogers were for the trustee and assignee of Mr. Simms; Mr. Follett and Mr. Gill for the defend ant, Mr. Howe; and Mr. J. V. Prior was with Mr. Roundell Palmer for the plaintiff.

Mr. Roupell was heard in reply.

Lord Justice Knight Bruce said that, without at all complaining of the length of time which had been occupied in the argument of the case, he could not refrain from expressing his surprise that it was found possible to extend it to the length to which it had been extended. The question divided itself into two parts, the first part being the more important one---namely, the question of the right between the appellant, Mr. Taylor, the mortgagee, and the plaintiff, Mr. Alexander; the other being the question of right between the appellant and his co-defendants. The first was the really important question, the other, on the present occasion, being comparatively immaterial. His Lordship then, after stating at length the facts of the case as before set out, and after saying he gave no opinion as to what might have been the mortgagee's rights had be entered into possession of the ship on her midway voy. age or in a foreign port, still, the ship having come completely to the end of her voyage, and having arrived at her port of destination, the claim made by the mortgagee could not be sustained. Mr. Taylor claimed seven-eighths of the cargo, for freight there was none, the goods being the property of the coowners, without paying any part of the expenses of the fitting out of the vessel, the expenses of obtaining the cargo, and other charges, which the owners had incurred. He claimed to retain seven-eighths of the cargo because he was mortgagee of seven-eighths of the ship, until such time as he should be paid a sum equal to what would be seven-eighths of the freight, if freight there were. The owner of the other one-eighth of the ship reasonably said that the mortgagee was liable for seven-eighths of the expenses, for it was a partnership adventure between Mr. Alexander and Mr. Simms, and, whatever right Mr. Taylor might have against Mr. Simms, his mortgagor, he had no right against the cargo. The contract as to the cargo was this,—that contract being either express or implied,—that the produce of the adventure, after the payment of all the expenses, should be divided between Mr. Alexander and Mr. Simms in the same proportions as they were owners of the ship. What right, then, had the mortgagee of seven-eighths of the ship to change that contract ? None. When a voyage is completed the mortgagee had no more right against the goods on board the ship than the mortgagor himself could enforce, and the mortgagor must have paid his seven-eighths of the expenses before he could have had any benefit of the goods. There were principle, pleading, reason, justice, and propriety against the case of the appellant, and his appeal must therefore be dismissed, with costs.

Lord Justice Turner was free to confess that during the very able argument he had been much embarrassed, but had ultimately come to the same conclusion as his learned brother, and agreed that the appeal must be dismissed, and dismissed with costs.


(Before Dr. LUSHINGTON.)


This was an application to the Court for the costs incurred in this suit under the following peculiar circumstances :—The assignees of Phillips and Co., of Newport, were the owners of 40 64th shares of the schooner Virtue, the remainder being held by Mr. Hughes, the captain. The shares held by the assignees were put up for sale by auction, aná Mr. Hughes, became the purchaser. He paid a deposit of 371. 108., and subsequently two sums of 2401. and 501., to Mr. Phelps, the solicitor of the assignees, which it was alleged had not been paid over by him. Mr. Hughes offered to pay the balance; but it was not accepted, and no bill of sale was made out. The assignees arrested the vessel in a cause of possession, and Mr. Hughes then filed a bill in Chancery to compel the performance of the agreement, which was dismissed on the ground that there was not sufficient proof that Phelps was solicitor to the assignees. Other proceedings took place, and the case was finally disposed of by the Lords Justices, who dismissed it because there had been no bill of sale, and the provisions of the Registration Act had not been complied with. The Fessel was under the arrest of this Court, by reason of an injunction, for upwards of three years, and, when sold under its decree, produced a net sum of 88. 3d., having been worth, as represented when the proceedings commenced, 6001. Lord Justice Knight Bruce, in dismissing the appeal, observed that it was a very hard case upor. Mr. Hughes, and only gave the sum deposited, 201.

The assignees now asked for the costs in the cause of possession. Dr. Jenner appeared for Mr. Hughes; Dr. Deane for the assignees.

The learned JUDGE said, that if the case had remained before him, and had not been taken into a court of equity, the assignees would not, under the circumstances, easily have induced him to decree them possession of the vessel. The only question that he had now to determine was as to fees, which he must pay, but the court would decree no other costs.


As to DangERS OF THE SEAS, see Part VI.

MASTERS OF SHIPS. The master of a ship is the person intrusted with the care and management of it. His power and authority are so great, and the trust reposed in him is of so important a nature, that the greatest care and circumspection ought to be used by the owners in the choice and appointment of him. It appears, by the language of the ancient sea-laws and ordinances, that the master was formerly in almost every instance a part-owner of the ship, and, consequently, interested in a twofold character in the faithful discharge of his duty. At present it frequently happens that he has no property in the ship The law of some countries requires a previous examination of the person to be appointed to this important office, in order to ascertain his nautical experience and skill; in other countries he is liable to be punished as a criminal if, having undertaken the charge, he is found incompetent to the performance of it. In this country the owners are left to their own discretion, as to the skill and honesty of the master; and, although he is bound to make good any damage that may happen to the ship or cargo by his negligence or upskilfulness if he is of ability to do so, yet he cannot be punished as a criminal for mere incompetence.-Abbott.

NUMBER OF SAILORS. In the year 1853, 190,000 sailors left the ports of this kingdom, being the greatest number that ever sailed from any country in the world.- Mr. Cardwell-House of Commons, Feb. 3, 1845.


(Before Dr. LUSHINGTON.)


Dr. LUSHINGTON delivered judgment in this case. The suit, he said, was brought by three seamen for subtraction of wages; there was no substantial difference in their cases. In June, 1852, they entered into articles, while the ship was at Birkenhead, to proceed on a voyage to Geelong, and afterwards to any ports in the China or Indian seas, and back to England. The vessel arrived at Geelong on the 4th of October, and about that time the master offered the crew either to pay them off in Geelong, and ship them again at the rate of wages usual at the port at that time, or to go with him to the diggings. An agreement was at last entered into by which it was settled that the expenses should be paid on behalf of the ship; that one-third of the gold should be appropriated for the benefit of the ship, and the rest shared among them, according to a fixed scale. It was also agreed that the wages should be stopped during the absence of the crew from the ship. Nearly half the crew refused to return, and the master offered to those who did return that if they would consent to navigate the vessel to Bombay he would divide among them the money due to those who had deserted, and he paid them the amount. A serman for the run from Geelong to Bombay could not then be got for less than 401. The ship, having completed her voyage, arrived at Liverpool on the 11th of September, 1853 ; the men claimed their wages, and the owners claimed to deduct two monthg and twenty-eight days at the diggings, and also the sum of 8l. 108., the amount due to each as the propor. tion of the forfeited wages. The mariners assented to the account, with the exception of the 8l. 108. This was not a suit to recover any amount stipulated to be paid, but the question was, whether an amount actually paid in addition to wages could be the subject of deduction. So far as the evidence extended, this was a voluntary offer on the part of the master, in consideration of the crew undertaking to navigate the vessel to Bombay without additional seamen-a proceeding which manifestly entailed extraordinary labour on them, and was productive of great saving to the owners. The court, however, strongly inclined to the opinion that, if this were a contract for any reward beyond the wages stipulated for in the mariners' contract, it would, whether made compulsorily or voluntarily, be illegal. He did not wish it to be inferred that mariners, having completed the voyage outwards, were compellable to make the return voyage when the number of the crew was so small that risk of life might be incurred. If this were a contract made during the voyage, it would be void for want of consideration, according to the expression of Lord Ellenborough in “Still v. Meyrick” (2 Campbell). He (Dr. Lushington) was of opinion that the payment made by the master was illegal, and that the money might be recovered by the owners by action. If the owners could recover by action, there was no reason why the court should not allow the deduction. He certainly would not give the owners the costs. It was an extreme hardship on the mariners that they had navigated the vessel for three or four months with half the original crew, and were to receive no additional remuneration.

COURT OF QUEEN'S BENCH, WESTMINSTOR, APRIL 24, 1854. (Sittings in Banco, before Lord CAMPBELL and Justices WIGHTMAN, ERLE, and



Mr. MILLWARD moved for a rule to show cause why the nonsuit which had been entered in this case should not be set aside, and the verdict entered for the plaintiff. The plaiutiff, who was an able seaman, in the month of No. vember, 1852, shipped on board a vessel bound for Melbourne, and by his articles he was bound to go thence to China, and so back to England. The crew consisted of twenty-eight hands, in addition to twelve supernumeraries. When the vessel arrived at Melbourne the temptation of "the diggings"

« ForrigeFortsett »