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ATTORNEY-GENERAL OF CANADA v. ATTORNEY-GENERAL OF ONTARIO.

lands in payment of the annuities. They will accordingly humbly advise her Majesty that the judgment of the Supreme Court of Canada ought to be affirmed, and both appeals dismissed. Seeing that the substantial question involved in these appeals is that of contract liability for a pecuniary obligation, they are of opinion that the rule, followed by them in some really international questions between Canadian Governments, ought not to apply here. The appellants must therefore pay to the respondent his costs of these appeals.

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The Bold Buccleugh (7 Moore P.C. 267) approved.

In order, however, to give rise to a maritime lien, the ship against which the lien is claimed must be the instrument of mischief, and some act of navigation of the ship itself must either mediately or immediately be the cause of the damage.

Appeal from a judgment of the Second Division of the Court of Session in Scot

land (the Lord Justice Clerk (Macdonald),

*Coram, The Lord Chancellor (Lord Halsbury), Lord Watson, Lord Herschell, Lord Morris, and Lord Shand.

Lords Young, Rutherfurd Clark, and
Trayner) reversing a decree of the
Sheriff Substitute of Lanarkshire.

The case is reported 22 Rettie, 607; 32 Sc. L. R. 520.

The facts are thus stated in Lord Watson's judgment:

The steamship Dunlossit was sold under a warrant issuing from the Sheriff Court of Lanarkshire, at the instance of Samuel McKnight, a mortgagee, now deceased, whose executors have been made respondents in this appeal. The price of the vessel having been paid into Court, a competition arose between the mortgagee and the present appellant, who holds a decree for damages against the registered owners of the Dunlossit, in respect of which he claims a preferable lien attaching to the proceeds of her judicial sale as a surrogatum for the ship. The findings of the decree upon which the appellant's claim is founded shew that during a night in November, 1893, three vessels were moored alongside of an open quay at Port Askaig, in the Sound of Islay, where there is no harbour. The Dunlossit was in the centre of the tier, the steamship Easdale, belonging to the appellant, being outside of her, and moored to the quay by cables passing over the deck of the Dunlossit. There was a gale of exceptional violence during the night which made the position of the vessels very insecure. In the morning the crew of the Dunlossit, which was in serious peril of damage from contact with the vessels between which she lay, and the possibility of another vessel moored in front of her coming in collision with

her, got up steam, and, after notice of their intention, cut the mooring ropes of the Easdale and stood out to sea. The Easdale was short-handed owing to the defection of two of her crew, and, being unable to get up steam, was driven ashore and damaged. The master of the Dunship against present and possible damage. lossit acted solely for the protection of his

The First Division of the Court (reversing the decision of the sheriff-substitute) held that the cutting of the Easdale's ropes by the crew of the Dunlossit was a wrongful act, for which her owners were responsible. That decree is final, and I have no right to express, and am not to

CURRIE v. MCKNIGHT, H.L.

be understood as expressing, any opinion with regard to its merits. The sheriffsubstitute in the present suit sustained the appellant's claim, being of opinion that in the sense of law the proceedings of the Dunlossit crew constituted an act of the ship which was sufficient to create a maritime lien for the damage thereby occasioned to the Easdale. His decision was reversed on appeal by the Second Division of the Court of Session, who dismissed the claim. Three of the learned Judges held that, according to the law of Scotland, no lien attaches to a ship for damage wrongfully done by her to another vessel, whether by collision or otherwise. Lord Rutherfurd Clark abstained from

expressing any opinion on that point, which did not appear to him to arise for decision. All the learned Judges held that, assuming the same right of lien to exist in Scotland as in England, the injuries suffered by the Easdale were not due to the fault of the Dunlossit as a ship.

July 27, 28.-Joseph Walton, Q.C., and A. S. D. Thompson (of the Scottish Bar), for the appellant. The maritime law of Scotland is identical with that of England -per Lord President Inglis (then Lord Justice Clerk) in Boettcher v. Carron Co. [1861] Maritime lien, therefore, which is derived from the civil law, applies in Scotland wherever it would apply in England. The lien being the foundation of a proceeding in rem attaches at once to the ship-The Bold Buccleugh (Harmer v. Bell) [1851],2 per Sir John Jervis, approving of The Aline [1839].3 The damage done was sufficient, according to The Aline,3 to give

a maritime lien. In The Aline 3 it was expressly stated by Dr. Lushington that the lien takes precedence over a mortgage or bottomry bond (at p. 118).

The Lord Advocate (Graham Murray, Q.C.) and Sir W. Phillimore, for the respondent. The Aline3 and The Bold Buccleugh 2 were cases of collision, and have no application where the damage was not done by one vessel to the other. this were an English case there would be no maritime lien. Maritime lien is not

(1) 23 Ct. of Sess. Cas. (2nd series), 322.
(2) 7 Moore P.C. 267, 285.
(3) 1 Wm. Rob. 111.

If

part of the general maritime law, but an English invention. English invention. The Bold Buccleugh 2 was wrongly decided. The observations relied on of Dr. Lushington were merely obiter, and not good law. In Scotland there is no action or remedy in rem, and therefore no maritime lien. The Scottish law exclusively applies, and not the general maritime law-see per Willes, J., in Lloyd v. Guibert [1865].4

Joseph Walton, Q.C., in reply.

The House took time for consideration..

Nov. 16. THE LORD CHANCELLOR (LORD HALSBURY).-This is a claim to establish a maritime lien against the ship Dunlossit, by reason of damage sustained

by another vessel, under circumstances which it is necessary to state, briefly, in order to see whether the claim is sustainable. The crew of the Dunlossit, in order to enable that ship to go to sea, cut the cables of another vessel, the Easdale. This proceeding on the part of the crew I will assume, for this purpose, to have been an unlawful act, and subjecting those responsible for the acts of the crew of the Dunlossit to a liability for the damage suffered by the Easdale. But there seems to me to be no connection between the damage to the Easdale and any act or thing done by the crew of the Dunlossit.

That the act done was done in order to enable the Dunlossit to start, or was done by the crew of the Dunlossit, does not make it an act of the Dunlossit; and the phrase that it must be the fault of the ship itself is not a mere figurative expression, but it imports, in my opinion, that the ship against which a maritime lien for damage is claimed is the instrument of mischief, and that in order to establish the liability of the ship itself to the maritime lien claimed, some act of navigation of the ship itself should either mediately or immediately be the cause of the damage. I am therefore of opinion that it would be impossible in an English Court of Admiralty to maintain that the injury suffered by the Easdale gave rise to a maritime lien, any more than if the master of the Dunlossit had unlawfully taken away some of the Easdale's property.

(4) 35 L. J. Q.B. 74; L. R. 1 Q.B. 115.

CURRIE v. MCKNIGHT, H.L.

Having arrived at this conclusion, I am not certain that to discuss the other matters involved in this appeal is not outside any question properly arising here. If the judgment had been the other way it would have been necessary to discuss whether the law which prevails in England prevails also in Scotland. I cannot doubt that in such cases it is the law of Great Britain that prevails, and that Scottish Admiralty Courts and English Admiralty Courts administer the same law. The Admiralty law, as we know it, differs from the common law of England, and the common law of Scotland differs from the common law of England. But the reason is obvious-the laws of England and Scotland were derived from different sources in respect of those two branches of the law. The Admiralty laws were derived both by Scotland and England from the same source; and, as it is said by no mean authority that the Admiralty law was derived from the laws of Oleron, supplemented by the civil law, it would be strange, and also in the highest degree inconvenient, if a different maritime law prevailed in two different parts of the same island. I only wish to add that I think the case of The Bold Buccleugh,2 in the Privy Council, was well decided. Its authority, I think, has never been shaken; and I should be sorry to see, at this distance of time, anything done which would weaken its authority. I am therefore of opinion that this appeal should be dismissed with costs, and I move your Lordships accordingly.

LORD WATSON, after stating the facts as above, proceeded: Both these grounds of judgment involve considerations, not of municipal, but of maritime law. Had they been confined to the second point I should have seen no reason to differ. But the first point is one of considerable importance to the shipping community. I am unable to concur in the views which were expressed with regard to it by the majority of the Second Division of the Court of Session.

From the earliest times the Courts of Scotland exercising jurisdiction in Admiralty causes have disregarded the municipal rules of Scottish law, and have in

variably professed to administer the law and customs of the sea generally prevailing among maritime States. In later times, with the growth of British shipping, the Admiralty law of England has gradually acquired predominance, and resort has seldom been had to the laws of other States for the guidance of the Courts. Mr. Bell, who wrote more than sixty years ago, states (2 Comm., 5th ed., p. 500) that the decisions which were at that time of the greatest authority in Scotch maritime Courts were those of the High Court of Admiralty of England. His statement is fully borne out by the authorities, to three of which I think it sufficient to refer.

In 1788, the Court of Session, in a case relating to lien for furnishings made to a ship (Wood v. Hamilton ), ordered the opinion of English counsel to be taken to ascertain the practice of England in such cases, and thereafter gave judgment in accordance with that opinion, although it was contrary to previous decisions of their own Court; and their judgment was affirmed by this House." In the well-known case of Hay v. Le Neve the Court of Session followed what they understood to bo the rule of the English Admiralty Court; and in moving the reversal of their judgment, Lord Gifford, who delivered the opinion of the House, said, "We are here on the law of the Admiralty of England." In Boettcher v. Carron Co.1 the identity of the maritime law of Scotland with that of England was distinctly proclaimed by the late Lord President Inglis, then Lord Justice Clerk, who was certainly not disposed to accept English law in any case where it differed from the law of Scotland. After referring to various causes which had contributed to produce that identity, his Lordship observed: "It would be very surprising if, at the present day, ships enjoying the privileges, and subject to the conditions of British registry, should sail from the ports of the United Kingdom, under the same flag, and subject to the same statutory regulations in all respects, and yet that in cases of collision, the legal rights of the parties might vary, according as the case (5) Morr. Dict. 6, 269. (6) 3 Paton, 148. (7) 2 Shaw, 395.

CURRIE v. MCKNIGHT, H.L. might be tried in one British Admiralty Court or another."

It does not appear to me to be doubtful that if the Dunlossit had been so negligently navigated as to run into and sink the Easdale she would, in absence of contributory fault by the Easdale, have been subject to a lien for the damage occasioned to the latter vessel in any English port, whereas, according to the law laid down in this case, no such lien would have attached to her in a Scottish harbour. That such a conflict should be possible is inconsistent with the views expressed by the late Lord President in Boettcher v. Carron Co.,1 and also with the maritime code which ought to prevail in both countries, which in my opinion is neither English nor Scottish, but British law. That there may be conflicting decisions by the Courts of the two countries is possibly unavoidable, seeing that different conclusions may be arrived at even by Courts of the same country, administering the same law. I do not mean to suggest that a Scottish Admiralty Court is less free to examine the merits of an English authority than an English Court is to estimate the value of a Scottish decision, and to accept or reject it, according to its own view of the law maritime. But it does not follow that the law either is or ought to be different in the two countries. This House has now become the ultimate forum in all maritime causes arising in the United Kingdom, and, as your Lordships are in my opinion bound to apply one and the same law to the decision of all such cases, your judgments upon a proper maritime question, whether given in an English or in a Scottish appeal, must be of equal authority in all the Admiralty Courts of the kingdom. The Bold Buccleugh,2 which was decided by the Judicial Committee of the Privy Council affirming the judgment of Dr. Lushington, is the earliest English authority which distinctly establishes the doctrine that, in a case of actual collision between two ships, if one of them only is to blame, she must bear a maritime lien for the amount of the damage sustained by the other, which has priority not only to the interest of her owner, but of her mortgagees. The principle of that decision has been adopted in the American Courts; and in

the Admiralty Court of England it has for nearly forty years been followed in a variety of cases in which lien for damage done by the ship has been preferred to claims for salvage and seamen's wages, and upon bottomry bonds.

In my opinion, the substantial question which your Lordships have to determine in this case is whether The Bold Buccleugh 2 was decided according to the maritime law of Britain. If it was, the rule which it lays down must apply to all maritime causes of a similar kind arising in the Courts of Scotland. It is unquestionably within the authority of this House to reconsider, and, if necessary, to overrule the judgment of the Judicial Committee in The Bold Buccleugh, but it is no less clear that the opinion of the eminent Judges who took part in the decision of that case ought not to be disregarded without good cause shewn. To my mind, their reasoning is satisfactory, and the result at which they arrived appears to me to be not only consistent with the principles of general maritime law, but to rest upon plain considerations of commercial expediency. The great increase which has taken place in the number of sea-going ships, propelled by steam power at high rates of speed, has multiplied to such an extent the risk and occurrence of collisions that it has become highly expedient, if not necessary, to interpret the rules of maritime liability in the manner best fitted to secure careful and prudent navigation. And, in my opinion, it is a reasonable and salutary rule that when a ship is so carelessly navigated as to occasion injury to other vessels which are free from blame the owners of the injured craft should have a remedy against the corpus of the offending ship, and should not be restricted to a personal claim against her owners, who may have no substantial interest in her, and may be without the means of making due compensation.

The other point, as to which the learned Judges of the Second Division were unanimous, relates to the limits of the shipping rule which was followed in the case of The Bold Buccleugh. I think it is of the essence of the rule that the damage in respect of which a maritime lien is admitted must be either the direct result or

CURRIE v. MCKNIGHT, H.L.

the natural consequence of a wrongful act or manœuvre of the ship to which it attaches. Such an act or manœuvre is necessarily due to want of skill or negligence of the persons by whom the vessel is navigated; but it is, in the language of maritime law, attributed to the ship, because the ship, in their negligent or unskilled hands, is the instrument which causes the damage. In the present case, according to the findings of fact contained in the decree of the First Division, the injuries sustained by the Easdale were not owing to any movement of the Dunlossit; they were wholly occasioned by an act of the Dunlossit's crew-not done in the course of her navigation, but for the purpose of removing an obstacle which prevented her from starting on her voyage. I am, therefore, of opinion that upon the second of these grounds the interlocutor appealed from ought to be affirmed.

LORD HERSCHELL.-The question raised by the appeal is whether the appellant is entitled to a maritime lien upon the vessel Dunlossit (or her proceeds), of which the original respondent, McKnight, was the mortgagee. In November, 1893, the vessels Dunlossit and Easdale were lying alongside one another at Port Askaig Pier, Islay. A heavy gale was raging, which the Easdale was unable or unwilling to face. The master of the Dunlossit being anxious to put to sea, and being unable to induce the master of the Easdale to let go his moorings, cut them and sent her adrift. The result was that the Easdale drifted ashore and was damaged. The owner of the Easdale, having obtained judgment against the owners of the Dunlossit for the amount of the damage thus sustained, sought by the present proceedings to maintain a maritime lien on the Dunlossit in respect of the damage done to the Easdale owing to the act of the master of the Dunlossit.

I entirely agree with the Court below in thinking that no such lien can be sustained. In the Admiralty Court in England a maritime lien has frequently been enforced in cases of collision against the vessel which was in fault; but no case could be cited which was at all similar to

the present one. In all the cases referred

to the damage had been caused either by a collision with the vessel which was to blame or by that vessel having driven the other into collision with some third vessel or other object. The doctrine was originally asserted in cases of damage by collision with the vessel which was declared subject to the lien. It has since been applied in cases in which the damage did not result from a collision with the vessel in fault, but in which, owing to the negligent navigation of that vessel, the injured ship was driven into collision with some other vessel or object. Whether the circumstances have always warranted the conclusions arrived at, it is not necessary to enquire. I express no opinion upon it; but the ground of decision was in all cases this-that the vessel on which the lien was enforced had, in maritime language, done the damage. Here the Dunlossit did no damage. It was not by reason of the negligent navigation of that vessel that the disaster occurred. It arose simply from the wrongful act of the master in cutting the Easdale adrift. I am not prepared to extend the doctrine of maritime lien to such a case. In the Court below three of the learned Judges held that the doctrine of maritime lien which exists in England in cases of collision is unknown in the law of Scotland. I entirely agree with the late Lord President Inglis that, much as the law of Scotland differs from that of England in many respects, the Admiralty law is the same in the two countries. The Courts of Scotland are, of course, not bound by the decision of an English Admiralty Court in any new case that arises. But, taking it to be. established that the Admiralty law of the two countries is the same, they would no doubt hesitate to differ from a long course of decisions by English Admiralty Courts of high authority. of high authority. I think it right to add, as the matter is of much practical importance, that, in my opinion, the doctrine of maritime lien in cases of collision is, within the limits to which I have adverted, too well established to be now questioned.

LORD MORRIS concurred.

LORD SHAND.-After what has been said by your Lordships it is unnecessary

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