pensated according to the provisions of the Act, in the same way and to the same extent as if no other loss or damage had happened during the same voyage or in the same interval (s); but this Act does not extend to any vessel, used solely in rivers or inland navigation, or to any ship or vessel not duly registered according to law (t).

This Act also contains a provision against taking away the responsibility of the master or mariner of any ship, notwithstanding he may be an owner or part-owner thereof (u). And that each individual sufferer may bring his action against the owner, although others have suffered by the same act or accident, or on the same occasion (v).

That where several persons shall have sustained loss, and the value of the vessel shall be insufficient to make full compensation to all, the owners may exhibit a bill in Equity against all parties claiming or entitled to recompense for losses arising from one and the same act or accident, or on the same occasion, in order to the ascertaining of the value of the ship, appurtenances, and freight, and for payment or distribution thereof, rateably among such claimants; that to this bill the plaintiff shall annex an affidavit, setting forth that he does not collude with any of the defendants or other persons, but that the bill is filed for the purpose only of justice, and to obtain the benefit of the provisions of the Act; that the defendants are, so far as he believes, the only parties claiming recompense for loss sustained on the same occasion; that the value of the ship, appurtenances, and freight, does not exceed a sum to be specified in such affidavit; and that the claims of the defendants exceed, in the aggregate, that value; that on filing the bill, the plaintiff shall pay into Court the value so specified, no defendant being compellable to answer until this has been done, or security given instead thereof, if so ordered by the Court: that for default in this respect, the bill shall, at the expiration of one month, stand dismissed, with costs to be paid to the defendants; and that if the bill be dismissed, after payment of the money into Court, the money so paid in shall be apportioned and distributed by the Court among the several claimants (w). That if it shall appear to the Court that the true value has not been paid in, an † order may be [† 400] made for the payment of a further sum, or the giving of

a further security (r). That the preliminary proceedings being regularly perfected, the Court shall take all such measures as shall seem just, for ascertaining the value of the ship, appurte

(s) 53 Geo. 3, c. 159, s. 3. (f) Sect. 4.

(u) Sect. 5.

(v) Sect. 6.

(20) Sect. 7.

(x) 53 Geo. 3, c. 159, s. 8.

nances, and freight, the amount of the losses or damages claimed by the defendants respectively, and whatever else may be necessary for doing justice in the suit, and for payment and distribution of the value among the several persons entitled (y). That a bill filed by one part-owner shall be binding on the rest (z); and that any sum paid on account of such damage, or of any cost incurred in relation thereto, may be brought into account among the part-owners as money disbursed for the use of the vessel.

*In the case of Thiseldon v. Gibbons, an action was brought and a verdict obtained by the proprietor of injured goods against the owner of a vessel in which the injury had occurred. The owner having filed his bill for relief in equity — an application made to the Court of Queen's Bench to restrain the plaintiff-at-law from proceeding pending the equity suit, was *refused (a).

As this statute appears in the case of registered ships, to comprise the several accidents and neglects which had been provided for by the two former statutes, and may now with regard to such ships be considered for most, if not all purposes, as containing the law upon this subject, and is of very general import, it has been thought right to print the statute at large in the Appendix.

5. The value of the ship is to be calculated at the time of the loss or damage; in calculating the value of the freight, money actually paid in advance, is to be included (b); but the value is to be the only amount that the ship would have earned if she had completed her voyage, and not the amount estimated at the commencement of the voyage, if diminished by jettison or other losses (c). If an action be brought against the several part-owners, one of whom happened to be master of the ship at the time of the loss, all the defendants are in that action entitled to the benefit of the limitation given by the statute. By the law of England, the damage to be recovered in an action brought against several persons, must [† 401] + be one and the same sum, judgment cannot be given against one defendant, for a sum differing from that for which it is given against another.

'The acts do not extend to lighters and gabbets (d).

The fishing stores of a ship employed in the usual manner in the Greenland Fishery belonging to the owners of the ship

(y) Sect. 10.

(z) Sect. 14.

(a) 8 Dowl. P. C. 419, O. S.

(b) Wilson v. Dickson and Others, 2 B.

& A. 2. The Volant, 6 Jur. 540.

(c) Cannan and Others v. Meaburn, 1 Bing. 465. And see Dobree v. Schroder, 6 Sim. 291.

(d) Hunter & Co. v. M'Gowan and Others, 1 Bligh, 573.

are to be valued as part of the ship and her appurtenances under these statutes, although they are not usually so estimated in policies of insurance, but made the subject of a separate assurance (e). (1)

* So also the chronometer of a whaler (ƒ).

It has been decided by the Court of Admiralty (g), and by the Court of Queen's Bench, that the unsuccessful party in an action or cause of damage, will be liable for the costs of recovering compensation, although the value of the ship and *freight should be insufficient to defray them (h).

(e) Gale v. Laurie and Others, 5 B. & C. 156; 1 Hagg. Ad. Rep. 109.

(f) Langton v. Horton, by Vice-Chancellor Wigram, 6 Jurist, 910.

(g) The Dundee, 1 Hagg. 109; The

Volant, 6 Jurist, 540. The John Dunn, 6 Rob. 159.

(h) Ex parte Rayne, 1 Gale & Dav. p.

374.

(1) There are no corresponding statutable provisions in our law, except those made by the State Legislatures, and apply to a very small portion of the Union. ante, 394, note. >

See

OF THE GENERAL DUTIES OF THE MERCHANT; AND HEREIN,

(Ss.)1. How he is bound to use the Ship.

2. Compensation to be made by him for not supplying Cargo. 3. Of Primage and Average.

1. THE general duties of the merchant (those only excepted which relate to the payment of freight and of gross average, and which will form the subject of distinct chapters) are comprised in a very narrow compass: the hirer of any thing must use it in a lawful manner, and according to the purpose for which it is let. The merchant must lade no prohibited. or uncustomed goods, by which the ship may be subjected to detention or forfeiture (a). (1) In general, even in case of affreightment by charter-party, the command of the ship is reserved to the owners or the master appointed by them, and therefore the merchant has not the power or opportunity of detaining the ship beyond the stipulated time, or employing it in any other than the stipulated service, but by the charterparties under which ships are let to the East India Company, the command and disposal of the ship are reserved to the Company, and the master, although appointed by the owners, is bound to obey the orders of the Company at home, and of their factors and servants abroad; and it is always stipulated, that nothing shall be paid by the Company for freight or demurrage, unless the ship returns home in safety. (b). Yet, in a case where the Company detained a ship so long in India that she became unfit for the voyage home, and was dis[† 403] posed of there, so that by reason of the particular stipulations, the owners could sustain no action at law upon

(a) Roccus, not. 85; Dig. 19, 2, 61, 1; French Ordinance, liv. 3, tit. 3; Fret.

art. 9.

(b) See the clauses cited in Hotham v. East India Company, ante, chap. 1 of this part, p. 278.

(1) Upon this ground, where goods were clandestinely shipped on board of an American ship bound from New York to Scotland, which goods were prohibited from importation by the British Laws, and in consequence thereof the ship was seized, and the master was compelled to pay a large sum for her release; it was held, that the shipper was responsible to the owner in damages. Smith v. Elder, 3 John. R. 105.

the contract, a Court of Equity ordered the Company to make a proper allowance for the actual and probable earnings and the value of the ship (c). So where a ship, hired by the Company, to be employed according to the then usual terms of their charter-parties in trade and warfare, was sent upon a service of observation and discovery, to explore the passage to the eastward of the Isle of Banca, and there struck on a rock, and was lost, and the owners brought an action against the Company for thus exposing the ship to danger in a service not warranted by the charter-party without their knowledge or consent, Lord Kenyon, before whom the cause was tried, declared himself to be of opinion, that the action was proper in point of general principle, but the plaintiffs failed in their suit, because it appeared that the Company's intention to employ the ship in this service was, before her departure from England, made known to the person who managed the ship on behalf of the owners, and not objected to on their part (d).

2. Some of the ancient maritime codes and more modern foreign ordinances (e) have fixed the payment to be made by the merchant, who having taken a ship to freight, declines to lade her in pursuance of his agreement, or who, before the commencement or during the course of the voyage, withdraws his goods from the ship, or having hired a ship to go to a distant port, and engaged to furnish a cargo homeward, fails to do so, whereby the ship is forced to return empty; and have decided that in some instances the whole, in others, a moiety of the sum, that would have become due as freight, shall be paid as compensation to the owners. But in all these cases the law of England leaves the amount of the compensation to be ascertained by a jury, if the parties cannot agree about it: and a jury will form their estimate upon a consideration of all the circumstances of the case, and of the real †injury sustained by the owners, which cannot prop- [† 404] erly be settled by positive rules. (1)

(c) Edwin and Others v. East India Company, 2 Vern. 210.

(d) Lewin and Others v. India Company, Peake's Cases at Nisi Prius, p. 241. It was an action upon the case, and the plaintiff's were nonsuited; they afterwards brought another action in the Court of Common Pleas, which was tried before Lord Eldon, at the Sittings after Hilary Term, 1900, and were again nonsuited on

the same ground. The terms of the charter-parties were afterwards altered, and the ships hired to be employed in trade and in warfare, and on any other service whatsoever.

(e) Ordin. of the Hanse Towns, art. 11; French Ordin. liv. 3, tit. 3; Fret art. 3 and 6, and 8 and 9, and Valin thereon; Guidon, chap. 9, art. 11; Code de Commerce, art. 288, 291.

(1) See 3 Kent, (5th ed.) 218, 219; Giles v. The Cynthia, 1 Peters, Adm. 206. > Connected with this subject, it may not be useless to state the duty of the merchant,