Finding that the Full Court decision was against them, Messrs. Huddart, Parker & Co.’s lawyers changed their tactics. With the object of quashing the whole proceedings, they raised the point that the Alert was not a British ship within the meaning of the Merchant Shipping Act. This point was fully recognised on March 24, 1897, before the same Supreme Court Judges who decided the appeal case. Mr. Schutt (barrister) appeared for Huddart, Parker & Co., and Mr. W. H. Williams (barrister) appeared for Ponting. As the matter debated is of great importance to all concerned in shipping interests, it has been deemed advisable to adhere to the authentic verbatim reports of the proceedings as given in the Herald newspaper, March 24, 1897, and the Argus Law Reports of May 11th, 1897, hereto annexed:—
“What is a British Ship?
Schutt for the respondents.—The plaintiff brings his action under sect. 103 of the Marine Act 1890. That section comes within Part VI. of the Act, and therefore has to be read with sect. 98, which says that the provision of that Part “shall apply to all British ships registered or being at any place within Victoria and to no others.” Thus, although sect. 103 only uses the word “ship,” it can only apply to a “British ship.” The Imperial Act, 39 and 40 Vict., c. 80, sect. 5, corresponds to our sect. 103; but this question could not arise in England, because there is no equivalent to sect. 98 in the Imperial legislation. We have, however, to refer to the Imperial legislation to find out what is a “British ship”; and we find that, by sects. 18 and 19 of the Merchant Shipping Act 1854, 17 & 18 Vict., c. 104, which two sections it is submitted are to be read together, a British ship must be owned by a British owner, and must be registered. By sect. 17 of the same Act, Part II. of the Act, under which sects. 18 and 19 are, is to apply to the whole of the British dominions. Again, if any alteration of the ship be made, re-registration is required by sect. 84 et seq., which, if not done by sect. 87, the ship shall not be deemed duly registered, and shall no longer be recognised as a British ship. In this case the Alert, when originally registered, had three masts. The number of her masts was subsequently altered, but she was never re-registered; she is, therefore, not now a British ship, and the plaintiff has no cause of action. [W. H. Williams referred to Chartered Mercantile Bank of India, London and China v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521; 52 L. J. Q. B. 220, per Brett, L. J., as to the meaning of “British ship.”] That case is distinguishable, the question there being whether a certain rule of the Admiralty Court as to the equal liability of the two ships should apply, and, accordingly, whether Dutch or English law was applicable. The ships were there held to be English because owned by English owners, although registered in Holland. The question was not whether they were British ships within the meaning of the Merchant Shipping Acts. He referred also to Leary v. Lloyd, 3 E. & E. 178; R. v. Clark, 5 V. L. R (L.) 440; 17 and 18 Vict., c. 104, sects. 106, 547.
W. H. Williams for the appellant.—Our local Parliament has put its own meaning on the words “British ship” in sect. 98. The Marine Act 1890 says nothing about recognition or non-recognition, according to whether a ship is registered or not. A British ship means a ship owned by British people. Registration has nothing to do with the British character of the ship. The case in 10 Q. B. D., and Lord Esher’s observations there, are exactly in point here. In addition, it does not lie in the mouth of the defendants to now take advantage of their own wrong. They have continued to sail in and out of port for years, and in their answers to interrogatories they admit that their ship was a British ship, and that they were the registered owners. To allow the defendants to raise this point now would be against public policy. The alteration to the Alert had, according to the Act, to be made under the supervision of the Marine Board. Yearly certificates have been granted by that Board to her for the last sixteen years, and during that time she has been continuously travelling under the British flag. Her owners thus are estopped from saying she is not a British ship. In addition, the alteration effected was not a very material one; it did not alter her identity.
Mr. Schutt argued in support of the view that the vessel was not registered as a British Ship.
Mr. Justice Holroyd: Suppose, on the consideration of this statute of ours, your view is correct, can you possibly take advantage of it? You, as owners, have for years enjoyed all the privileges possessed by the owners of a duly registered British ship, and you have availed yourselves of them over and over again. You have sailed from port to port, and obtained your clearance papers in that character. Can you now turn round and say that the vessel was not duly registered?
Mr. Schutt: It seems to me that you are assuming that there was evidence that we did enjoy those privileges, whereas there is not the slightest evidence that we ever did fly the British flag.
Mr. Justice Holroyd: You got your clearance papers from port to port.
Mr. Schutt: There is no evidence that we did get them.
Mr. Justice Holroyd: How did she get out?