how much it costs to repair, and the cost of repairing includes dry docking; but if, for another reason, the owner of the damaged vessel is already about to repair the ship, and has already to incur dock dues, it does not add one particle to the dock expenses, in claiming against the wrongdoer, that the owner aforesaid has done the repairs caused by the wrongdoer while the owner was doing something which he is already obliged to do in order to repair the ship. Of course, the wrongdoer has to be made responsible for all actual repairs necessitated by his wrongdoing; but it seems to me that the cost of the dock dues is not an additional expense which falls upon the second wrongdoer. There is a further case upon this point, which I do not think touches the present ques. tion, and that is the case of Ruabon Steamship Company (81 L. T. Rep. 585; 9 Asp. Mar. Law Cas. 2; (1900) A. C. 6), in which The Vancouver was referred to and commented on, but it has, to my mind, very little bearing on the present case. I think, therefore, that the registrar was right in this case, and that the defendants, the owners of the Haversham Grange are not liable for any portion of the expenses which are in dispute in the present matter, and therefore the motion which seeks to have the items, which have been disallowed, allowed, and the report reversed, fails, and, in my opinion, the motion must be dismissed.

From that decision the owners of the Maureen appealed.

It is,

June 26-Laing, K.C. and Dawson Miller for the appellants, the owners of the Maureen.The principles laid down in the case of The Vancouver (ubi sup.) govern this case, and the expenses incurred in docking the vessel ought to be borne equally by the wrongdoers. They cannot be in a better position than the underwriter who was bound to indemnify the owners against a loss under the policy in that case. The owners of the Maureen are entitled to be indemnified by the wrongdoer at once, and so the cost of each set of damage should be calculated separately. however, only reasonable that, if both sets of damage are repaired together, the claims against each wrongdoer should be reduced proportionately if a saving of cost has been effected. Lord Brampton in his judgment in the case of The Ruabon (ubi sup.) says that "where two operations are essentially necessary to be performed upon the hull of the ship in order to put her into condition to send her to sea, and "neither of such operations could be performed unless the ship were dry docked," and it is deemed expedient to do both operations at the same time, the cost of dry docking and the dock dues must be shared in proportion, "having regard to the period of joint or separate use of it." The case of The Acanthus (85 L. T. Rep. 696; 9 Asp. Mar. Law Cas. 276; (1902) P. 17) has no application to this case, for in that case, although the owners derived a benefit from the dry docking, the wrongdoers were not entitled to any contribution from them in respect of it. With regard to the demurrage claim, the same principle is applied; to repair the damage caused by the Haversham Grange would have taken six days, but, as the other repairs were going on at the same time, the owners of the Haversham Grange are only

[CT. OF APP.

charged with three days. [ROMER, L.J.-I do not see how you can say this vessel was detained by the collision with the Haversham Grange; the first collision would have caused her detention for twenty-two days, and. in fact, she was detained for that length of time.] The owners need not have done both repairs at the same time.

Maurice Hill (Aspinall, K.C. with him) for the respondents, the owners of the Haversham Grange. -First, with regard to the demurrage. [COLLINS, M.R.-You need not argue the demurrage point; you may confine yourself to the dock dues.] As to the dock dues, the Maureen, after her collision with the Caravellas, was bound to go into dry dock. The cost of the repairs rendered necessary by that collision being 1300l., and the cost of the repairs rendered necessary by the collision with the Haversham Grange being 1907., the repairs necessitated by the Caravellas damage would take much longer to do. Lord Brampton, in his judgment in the case of The Ruabon (ubi sup.), says he did not find "anything in The Vancouver case which would justify such division of dock dues, unless in such cases as I have mentioned," and the cases he had mentioned are those quoted by counsel for the appellants, but they are not cases which are analogous to this one. The cases of The Vancouver (ubi sup.) and The Ruabon (ubi sup) have no bearing on cases of damage by a tortfeasor. The only thing for which a tortfeasor is liable is the consequence of the wrong done by him; he is liable for the damage which results from the wrong done At the time the Haversham Grange collided with the Maureen all these docking expenses would have been incurred, and would have had to have been met by the owners of the Caravellas. How can it be said that they are in part a consequence of the wrong done by the Haversham Grange? The only question decided in The Vancouver case was that a particular average loss sustained by the shipowner exceeded 3 per cent. within the meaning of the warranty contained in a policy of assurance underwritten by the insurers. That was pointed out by Lord Macnaghten in his judgment in the case of The Ruabon (ubi sup.). There is no principle of law which requires a person to contribute to an outlay because he has derived a benefit from it, and The Vancouver case did not decide that such a person should be made to contribute.

Laing, K.C. in reply.-A tortfeasor cannot be in any better position than an underwriter. They both have to indemnify the injured party against the loss sustained. The only question here is what is the cost of repairing the damage caused by the Haversham Grange. Even if the owners of the Maureen were not going to repair the vessel at all they could recover that, for it is the measure of the loss sustained.

COLLINS, M.R-This is an appeal from a decision of the President upon a question of whether or not one of two tortfeasors-I call them tortfeasors because some stress has been laid in the argument on the fact that they are tortfeasors-who caused the damage to a par ticular ship by coming into collision with it is entitled to say that the damage for which he is liable must be measured by excluding altogether the cost to which the injured vessel was put in going into dry dock, inasmuch as it would have had to have gone into dry dock to repair the

damage already inflicted by the earlier collision with the other tortfeasor. That is the point. This steamer was coming up the Thames, and a ship called the Caravellas came into collision with it and did very considerable damage. Afterwards, as it proceeded further on its course, another vessel, called the Haversham Grange, came into collision with it also, striking the other side of it, apparently, and did damage, but nothing like so great damage as had been done by the Caravellas. The vessel had to be put into dry dock, and the repairs rendered necessary by both collisions were effected when the ship was put into dry dock, and the shipowner claims that, in assessing his damage against the Haversham Grange, which was the second ship which came into collision with his vessel, he is entitled to include in his measure of damage against the second ship a proper proportion of the cost of putting the ship into dock, and, I presume, of taking it out. On the other hand, the owners of the Haversham Grange contend that they cannot be charged with any part of the cost of putting the ship into dock, because, when the Haversham Grange came into collision with the Maureen, she was already a damaged ship, and they say they are not liable for any of that damage. They say she was a damaged vessel, and a vessel in that damaged condition would have been bound to go into dry dock whether their vessel had collided with her or not. Therefore they begin the discussion after they have taken into consideration all the damages caused by the first collision which have to be paid by the owners of the first wrongdoing ship. They say they did no damage until after that, and therefore they are not liable for anything until that has been paid by the first wrongdoer who caused the taking of the ship into dry dock to be necessary. The question is whether that is a right contention or not. The learned President, following the decision of the learned registrar, has adopted the view that no part of the putting of the ship into dry dock ought to be claimed against the owners of the second wrongdoing ship, the Haversham Grange.

On considering the whole matter, I have come to the conclusion that the principles of The Vancouver (ubi sup.), decided in the House of Lords, which is the leading case on the matter, and which is reported under the name of Marine Insurance Company v. China Transpacific Steamship Company (ubi sup.), Cover this case. It seems to me, by the well-known practice of the Admiralty Court, what we have got to ascertain in this case is this, What ought to be taken as the cost of repairing the damage done by a wrongdoer? No doubt, as counsel for the Haversham Grange has pointed out, a tort has been committed, and the tortfeasor is responsible to the extent of the damage done. Whether the ship is repaired or not is not at all material, but practically, in ascertaining what the amount of the damage is, the standard adopted is the cost of effecting the repairs rendered necessary by the action of the wrongdoer. Now, in this particular case the ship was put into the dock for the purpose of effecting the repairs, and the right of the shipowner was to recover against each of the tortfeasors all the costs attributable to the wrong committed by him, and therefore, as against each of them, it seems to me the only thing to be ascertained was,

[CT. OF APP.

What was the cost to the ship for repairing the particular wrong done by the particular wrong. doer? The result of the two wrongs together is, of course, that the ship went into dock and the whole mischief was repaired. A calculation had to be made to ascertain what the total cost of all the mischief was, and to apportion between the two delinquents the particular part of the cost attributable to the wrong caused by each of them; and it seems to me, upon the principle of The Vancouver (ubi sup.), so far as there was a common factor in the case, and to the extent of the time occupied in the common process of repairing the mischief done by each of them, that that must be apportioned between the two ships. The principle in The Vancouver case was laid down chiefly in the judgment of Lord Herschell, and in attempting to summarise it myself in the case of Ruabon Steamship Company v. London Assurance (77 L. T. Rep. 402; 8 Asp. Mar. Law Cas. 369; (1897) 2 Q. B. 456), and, subject to a qualification which has been introduced by the Ruabon case, I think it does express the principle, I say: "I think the principle of that case is that, where repairs in respect of damage for which underwriters are liable have been executed simultaneously with repairs as to which the owner is uninsured, and an expense has been incurred which would have been necessary for either purpose alone, such expense is not to be wholly attributed to one set of repairs alone, but forms a factor in the cost of each, and must therefore be divided between them in some proportion which prima facie would be equally. The problem really is to find the cost at which each set of repairs has been executed. Each has been executed at a less cost because there is a common factor in the expenses which has enured to the benefit of both, and, in stating an account of the cost of each, the person carrying out the repairs would be bound to debit each set with a proportion of the common items. This is a perfectly simple and intelligible principle, and applies to this case." I adhere to that, subject to this qualification, which has been introduced by the case of Ruabon Steamship Company v. London Assurance Company (ubi sup.), that the repairs must have been such as in the circumstances the owners of the ship had no alternative but to have executed. It does not apply to a case where he avails himself of the convenient opportunity of doing the repairs, the ship being in dock; but it does apply to a case in which he could not avoid going into dock to do either repairs, and where all repairs were in fact done. I find this statement of principle in the judgment of Lord Brampton in the case of The Ruabon (ubi sup.). He says, referring to the case of The Vancouver (ubi sup.): "Since the decision of The Vancouver case, by which, of course, we are bound, and which to me seems to be founded on good sense, it is not, in my opinion, open to question that where two operations are essentially necessary to be performed upon the hull of the ship in order to render her in a condition to justify a prudent owner in sending her again to sea, and one of such operations being to effect repairs for the cost of which under writers are responsible, the other to clean and scrape the ship necessitated by wear and tear, the cost of which must be borne by the owners themselves, and neither of such operations could be performed unless the ship were dry docked, and

both of which operations the owners and underwriters, or owners acting for themselves and also for the underwriters, deem it expedient should be performed at one and the same time, or that one should immediately follow the other without any substantial interval under one continuous dry docking, in such cases the cost of docking and all dock dues during the period the vessel is in dock must be shared in proportion, having regard to the period of joint or separate actual use of it." Now, in that case there is no doubt whatever that the two operations described by Lord Brampton were essentially necessary, because both sets of repairs were essentially necessary; and, therefore, that case primâ facie seems to me to come directly within the principles of The Vancouver. The argument here is twofold. It is said that in The Vancouver case you are dealing with questions between an uninsured owner as to one part of the repairs and an underwriter who was bound to indemnify as to the other part of the repairs, and that therefore that case is distinguishable from this one, where the parties concerned are both tortfeasors. At one time I thought it was suggested that there was some difficulty arising by reason of the rule that there could be no contribution between two tortfeasors; but the learned registrar himself repudiated any suggestion of difficulty on that ground, and he has pointed out to us that, though it was pressed upon the learned judge, the learned judge has not adopted it.

Therefore we must look to some other fact or principle to take this case out of the principles which, as I have explained, support the decision in The Vancouver case. It is said that a tortfeasor is, after all, in a different position, and in a better position, than an underwriter; that he is not in the position of an underwriter and bound to indemnify, but that, although bound to indemnify inasmuch as he is a tortfeasor, and bound to make good the damage caused, yet he is in a better position than an underwriter whose contract is to indemnify. I fail to realise that position, and I think if one once arrives at this, that the measure of his liability is the cost of repairing the damage which be has done, then it becomes simply a question of arithmetic, and the principle laid down in The Vancouver case obliges me to say that you must not treat the fact that the first set of repairs had to be done as excluding the obligation to pay for his part of the common costs incident to both sets of repairs when the second set is done. It seems to me that the plaintiffs are not excluded from considering that one of the parties, or both of them, are tortfeasors, because the common factor, in the two cases is that these two parties, I do not care whether by virtue of a contract, or by virtue of a wrong, when the repairs are done, are obliged to make them good. That is the result of being put in the position of a person who is bound to indemnify the plaintiff for the wrong he has done. When once you have decided the cost at which the repairs were done, and find out what part of those costs each of the wrongdoers ought to pay, it seems to me the principles laid down in the case of The Vancouver oblige you to treat the two common factors in that process as costs which must be divided in their proper proportion. For these reasons I think that the learned judge VOL. X., N. S.

[CT. OF APP.

of the court below was wrong in adopting the view that the measure of the liability of the Haversham Grange must be ascertained in view of the fact that there was a consummated wrong which would have involved a certain cost to the owner of the ship, even if no other wrong had been committed, and that that excludes any possible liability on the part of the second wrongdoer to contribute to any part of the common expenses of the repairs. For these reasons it seems to me it resolves itself into a question of the proper way of looking at the repairs, which is the ordinary way of ascertaining the damage to be recovered from a wrongdoer, and that upon that account the common items should be divided. That disposes of the appeal so far as the expenses of going into and coming out of the dock are concerned. There is another matter which raises a question entirely independent of the principles which I have been discussing, and that is the claim for the detention of the ship. It turns out that the ship must have been, and in point of fact was, detained the whole time in dock by the repairs which had to be executed in consequence of the damage done by the first of the two ships, the Caravellas, and that in point of fact, although the repairs rendered necessary by the Haversham Grange were done simultaneously, the ship was not detained an hour longer by reason of that fact. In view of that it seems to me impossible to say that any claim for detention exists against the Haversham Grange, and that therefore, so far as that part of the case is concerned, it must be dismissed.

ROMER, L.J.-I have come to the same conclusion on both points. I will only add a few words with regard to the dock dues. In this case two injuries had been occasioned to the Maureen by two collisions-one with the Caravellas, and the other with the Haversham Grange, the Haversham Grange being the second in point of time. It was after both accidents had happened that the vessel was taken to the dry dock, and while she was in the dry dock it was used for the joint purpose of repairing the damage done by each collision. In that state of things, I think it is reasonably clear that the ship was taken into dock, and the dock was utilised for the purpose of both injuries, so that the ship that occasioned the second injury could not say that the dock had not been used to repair the damage for which she was liable. The Haversham Grange was liable for the injury caused by the second collision, and her owners used the dock for the purpose of doing the repairs rendered necessary by the injury that she had occasioned. That being so, it appears to me that you have a case of the user of a dock by two persons to repair separate injuries, each of which required docking to enable the injuries to be repaired; and it appears to me also that, that being so, and so far as the dues at entry are concerned, you ought to consider that the dues were incurred on behalf of both wrongdoers, and, so far as they were common dues used in repairing both ships, you ought to consider those dues as utilised on behalf of both. I think that was the principle clearly laid down in the case of The Vancouver (ubi sup.), as interpreted and explained by the case of The Ruabon (ubi sup.), and especially by the judgment of Lord Brampton in the latter case. It appears to me that those cases lay down the principles to be applied

Y

to these dock dues. It is said that, because the injury occasioned by the Haversham Grange was second in point of time, some special benefit thereby accrued to the owners of the Haversham Grange in respect to the costs of these dock dues. It was said that, as between the injuries occasioned by the Caravellas and the injuries occasioned by the Haversham Grange, you ought to treat the injuries caused by the Caravellas as necessitating, either on the part of the owners of the Maureen, or on the part of the owners of the Haversham Grange, a liability on the part of the owners of the Caravellas to dock and to pay the expenses of the docking and of the detention while the Maureen was in the dock, so that the owners of the Haversham Grange would have the benefit of that docking without any liability to contribute to the cost of it. In other words, that, because the injury done by the Haversham Grange was second in point of time, therefore the docking must be held to be done solely for the purpose of repairing the first injury. To my mind, that is not an accurate or proper way of looking at the matter at all. It appears to me that, both injuries having been done, it cannot be said that there is any right on the part of those who had occasioned the second injury to say that there was any obligation on the part of the persons who had occasioned the first injury to free them from any part of the obligations they otherwise would have incurred if there had been no first injury at all. To my mind it is clear, as I have said, that, where the docking was done on behalf of both, both ought to contribute in accordance with the principles laid down in the case of the Vancouver. In my opinion, the owners of the Haversham Grange should bear a share of these dock dues, and the appeal on that point should be allowed.

Solicitor for the appellants (the owners of the Maureen), C. E. Harvey.

Solicitors for the respondents (the owners of the Haversham Grange), W. A. Crump and Son.

Aug. 8 and 9, 1905.

(Before COLLINS, M.R., ROMER and
MATHEW, L.JJ.)

THE EMILIE MILLON; GULBE AND OTHERS V
OWNERS OF THE EMILIE MILLON. (a)

APPEAL FROM THE COURT OF PASSAGE AT
LIVERPOOL.

Dock-Unpaid dock dues-Statutory right of dock board to detain ship until dues paidMersey Dock Acts Consolidation Act 1858 (21 & 22 Vict. c. xcii.), s. 253.

The Mersey Docks and Harbour Board have statutory power, while any dock or harbour rates remain unpaid in respect of any vessel, to“ cause such vessel to be detained until all such rates have been paid."

A vessel in the Mersey Docks, in respect of which docks rates were unpaid, was sold under an order of an Admiralty Court in an action by the master and crew for wages. The board having refused to allow the vessel to leave the dock until the rates were paid, an order was made that the a, Reported by J. H. WILLIAMS, Esq., Barrister-at-Law.

vessel should " be delivered to the purchaser free from all claims and demands against her upon payment of the purchase money into court," and that " any right of the board to payment of their charges in priority to other claimants" should be preserved as against the fund in court. Held (allowing the appeal), that the right of the dock board to detain the vessel until all rates were paid was absolute, and that no order could be made for the delivery of the vessel from the dock until all the dock rates were paid.

APPEAL of the Mersey Docks and Harbour Board from an order made by the judge of the Court of Passage at Liverpool.

The vessel Emilie Millon in March 1905 entered the docks of the Mersey Docks and Harbour Board and became liable to pay tonnage rates.

While the vessel was in the docks, actions were brought in Admiralty in the Court of Passage at Liverpool by the master and crew in respect of wages, and by a "necessaries man," and judgments were obtained against the ship. The ship was then arrested by the marshal of the court, but remained in the dock.

An order was then made for the sale of the ship by the marshal of the Court of Passage; and the marshal effected a sale by private treaty.

Tonnage rates being unpaid in respect of the vessel, the dock board refused to allow the vessel to be removed from the docks until those rates were paid. The purchaser objected to pay the purchase money until the ship could be taken out

of the docks.

Thereupon an application was made to the judge of the Court of Passage, the dock board being made respondents and appearing under protest, and on the 31st July an order was made as follows: "That the sale of the Emilie Millon be confirmed, and that the vessel be delivered to the purchaser free from all claims and demands against her on payment of the purchase money into court, less Messrs. Kellock's charges. That the marshal's account be taxed and paid out of the money when in court. That any right of the Mersey Docks and Harbour Board to payment of their charges in priority to other claimants which they may be entitled to under their Acts of Parliament be preserved as against the fund in court."

The amount of the purchase money of the ship would be insufficient to pay all the charges and liens, and the unpaid tonnage rates.

The Mersey Dock Acts Consolidation Act 1858 (21 & 22 Vict. c. xcii.) provides :

Sect. 247. Any collector of tonnage rates may receive, by way of deposit, and on account of the rates to which any vessel may be liable, such a sum of money as shall in his opinion be sufficient to cover the amount thereof; and the production of a certificate from him that such deposit has been made shall, as an authority to the collector of customs to allow the entry of such vessel to be made, be equivalent to the production of a receipt for the payment of such rates by the collector thereof, but such vessel shall not be entitled to clearance outwards until a receipt for the full amount of all rates payable in respect of such vessel, signed by some collector of such rates, shall have been produced to the proper officer of

customs.

Sect. 253. While any dock tonnage rates or harbour rates remain unpaid in respect of any vessel liable thereto, the collector of such rates shall not receive any

further or other entry in respect of such vessel, and the board may cause such vessel to be detained until all such rates shall have been paid.

The Mersey Docks and Harbour Board appealed. The master and crew were the only respondents who appeared at the hearing of the appeal.

Carver, K.C. and Leslie Scott for the appellants. The order of the learned judge was wrong. It is clear from the provisions of sect 253 of their Act that the dock board have an absolute right to detain a vessel in the dock until all unpaid tonnage rates are paid. The order which has been made deprives them of that right. The effect of the order is that the costs of sale and of the marshal will be deducted before the money is paid into court, and that the dock board will have to fight over the balance, instead of being secured by their right to detain the ship until they are paid in full. The statute does not give the dock board any lien, or any claim against the purchase money. The statute gives a general right of detention against all the world irrespective of any liens, and that right overrides all other rights.

Ross-Brown for the respondents.-This order was quite right. This statute only gives the right of detention for unpaid tonnage rates subject to any maritime lien then attached to the vessel. The master and crew had a maritime lien on this ship for wages, and obtained judgment against the ship. The right given by sect. 253 to the dock board does not override that maritime lien. That lien is a subtraction from the absolute property of the owner:

The Ripon City, 8 Asp. Mar. Law Cas. 304; 77 L. T. Rep. 98; (1897) P. 226, 242.

The right of the dock board is only against the shipowner, and must be subject to the paramount lien which is a subtraction from the property of the owner. The master and crew, having a mari. time iien on the ship for their wages, are in a better position than the shipowner with regard to the dock board, and the owner cannot deprive them of that lien by taking the ship into the dock and neglecting to pay the dues. The lien of master and crew for wages has priority over the possessory lien of a shipwright for repairs, and the position of the dock board is analogous to that of the shipwright. The order of the learned judge was, therefore, right, as the vessel cannot be effectively sold and the purchase money obtained in order pay the wages until the ship is released from the dock.

Carver, K.C. replied.

COLLINS, M.R.-It appears to be quite clear on the express wording of the two sections sects. 248 and 253 of the Mersey Dock Acts Consolidation Act 1858 (21 & 22 Vict. c. xcii.) -which have been referred to, that an express statutory right of detention in respect of rates unpaid has been conferred upon the Mersey Docks and Harbour Board as a condition of this ship going into and going out of the dock. This order seems to ignore that right, because it orders the ship to be taken out of the dock, and substitutes a charge, if any, upon the fund. There is no charge. The only protection the dock board have is to keep the vessel under their control. That right they have by statute, and

nobody can undo or annul that statutory provision in their favour. I think this order was misconceived, and must be set aside.

ROMER, L.J.—I quite agree. It is not accurate to say that the Mersey Docks and Harbour Board have a lien on the ship; it is rather a right to detain the ship and prevent its going out. That right is clearly given to the dock board, and they have nothing to do with any question or disputes as between the owners and the crew, or with any sale of the ship to any purchaser. Those are matters that concern the persons interested in the ship. That does not concern in any way the dock board. The dock board are entitled to say as against the ship, whoever is the owner, that this ship cannot be taken out, in the express words of the statute, unless the dock dues are paid. The order as framed deprives them of that right, and without their consent purports to give them an option to try and make some claim to a lien in priority. They have no lien in priority. Upon this order, if it stood, if the ship had gone out, the dock board would have been left to make a futile claim against the fund in court. The order is clearly wrong and ought to be discharged, and the matter must be remitted back to the judge with the direction to make such order as between the parties interested as he may be advised to make. So far as the dock board are concerned, no order which he can make can take away their rights without their consent.

MATHEW, LJ.-I am of the same opinion. The literal construction of the section here seems perfectly reasonable. It gives the dock board a right to detain the ship for the dock dues. The learned counsel for the respondents argued that we ought to read into both or either of these sections a proviso that the right of the dock board to detain the ship shall cease if it appears that there are maritime liens upon it which were created before she came into the dock. See what the consequences would be. Jn every case where a vessel is brought into dock or placed in dock the burden would be put upon the dock board of inquiring into the previous claims upon her, and of deciding whether the ship should come in or not. It seems to me it is incredible that the Legislature could have meant to put any such obligation upon the dock board. The literal construction of the statute is entirely in their favour, and this order, therefore, must be set aside. Appeal allowed.

Solicitors for the appellants, Rawle, Johnstone, and Co., for W. C. Thorne, Liverpool.

Solicitor for the respondents, R. J. Steinforth, Liverpool.