Battling with waves and lawyers

by Unknown

The following authorities were also referred to during argument:—Bell v. Bank of London, 28 L.J. Ex. 116; Union Bank of London v. Lenanton, 3 C. P. D. 243.

Williams, J.—This is an application for a new trial. The Court has already delivered judgment upon a point which we need not further refer to, ordering that a new trial should take place upon the ground there dealt with. But now Mr. Schutt, counsel for the defendants, says that there is an objection which would be a fatal objection to the plaintiff’s case, that it is an objection which could not possibly be got over, and that the Court ought not to send a case for a new trial when the trial would be futile. The Court saw the force of that contention of Mr. Schutt, and so we have heard arguments on that point. Now, that point was this—that this action was an action brought under sect. 109 of our Marine Act, 1890, and that that section only applies to the case of a British ship, and that therefore the plaintiff, before he could bring his action upon the implied contract created by sect. 103, must show that the Alert, the ship in question, was a British ship. So far Mr. Schutt’s contention appears to be correct, because sect. 98 of the same Act says, “The provisions contained in this part of this Act”—i. e., the part dealing with the safety of ships and prevention of accidents, in which sect. 103 is included—“shall (except where it is otherwise specially provided) apply to all British ships registered or being at any place within Victoria, and to no others.” Therefore it is perfectly clear, so far, that sect. 103 only applies to British ships. Well then, Mr. Schutt further contended that a ship could not be a British ship unless it was owned by British subjects, and unless it was registered in the manner provided by the Merchant Shipping Act, 1854, 17 and 18 Vict., c. 104. Now, there is no doubt that those provisions of the Merchant Shipping Act, 1854, as to registration, and as to what constitutes a British ship, apply to this colony, because sect. 17 says, “The second part of this Act shall apply to the whole of Her Majesty’s dominions.” Now it is upon that point that Mr. Schutt seems to have based his contention—namely, that to constitute the Alert a British ship, it must be proved not only that she belongs to British subjects, but that she was registered as required by the Merchant Shipping Act, 1854. He certainly argued the point very ably, and displayed great ingenuity in his argument, but, unfortunately, I cannot agree with him on that point. Sect. 18 of the same Act provides that “no ship shall be deemed to be a British ship, unless she belongs wholly to owners of the following description, that is to say,” and then the subsections proceed to give the description of the persons to whom she may belong—viz., natural-born British subjects, persons made denizens by letters of denization, or naturalised by or pursuant to any Act of the Imperial Legislature, or by or pursuant to any Act or Ordinance of the proper Legislative authority in any British possession, and bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession. Well, that section, if it stood alone, says that a ship shall not be a British ship unless it belongs to owners of a certain description, and if so, it would follow by implication that she was a British ship. Sect. 19 then goes on to say, “Every British ship must be registered in manner hereinafter mentioned,” with certain exceptions. It assumes there that the ship is a British ship. It is not “every ship claiming to be a British ship,” or “seeking to be a British ship,” but it is “every British ship must be registered in the manner hereinafter mentioned, except”—and then it goes on to provide for the exceptions to registration, and then having done that, it goes on to say “and no ship hereby required to be registered shall, unless registered, be recognised as a British ship.” It is upon those words that Mr. Schutt so strongly relies. Now, I desire to draw attention to the marked difference of language. Sect. 18 says, “no ship shall be deemed to be a British ship, unless she belongs wholly to owners” of a certain description, while sect. 19 has “no ship required to be registered shall, unless registered, be recognised as a British ship,” and then it goes on to say in that section, “and no officer of customs shall grant a clearance or transire to any ship hereby required to be registered for the purpose of enabling her to proceed to sea as a British ship, unless the master of such ship, upon being required so to do, produces to him such certificate of registry as is hereinafter mentioned; and if such ship attempts to proceed to sea as a British ship without a clearance or transire, such officer may detain such ship until such certificate is produced to him.” I think, in the first place, that sect. 19 recognises the fact that a ship may be a British ship without registration; but then it says if you are a British ship you must also be registered, and, if not, certain consequences will follow, some of which are enumerated, one being that she shall not be recognised as a British ship. What is the meaning of “shall not be recognised” is given by sect. 106, which says “whenever”—apparently equivalent to “wherever”—“it is declared by this Act that a ship belonging to any person or body corporate qualified according to this Act to be owners of British ships shall not be recognised as a British ship, such ship shall not be entitled to any benefits, privileges, advantages, or protection, usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character; but, so far as regards the payment of dues, the liability to pains and penalties, and the punishment of offences committed on board such ship or by any persons belonging to her, such ship shall be dealt with in the same manner in all respects as if she were a recognised British ship.” Well now, I think—I am taking an extreme case that the ship has never been registered at all, I am not giving my judgment on the view that she was registered and then partially altered, I am taking a bald case of a ship not being registered at all—that the effect of the consequences is pointed out by sect. 106. These are the consequences: namely, that she shall not be entitled to any benefits, privileges, advantages, or protection, usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character, and that because she has not been registered she loses those advantages, and though she loses them there shall be still attached to her all the pains and penalties and punishments for offences as a recognised British ship. I see that is the view taken by a learned writer on shipping—MacLachlan on Merchant Shipping (4th ed.), at p. 96—and it appears to me, though it was not necessary for his judgment, that Brett, L.J., in the Chartered Mercantile Bank of India, London and China v. The Netherlands India Steam Navigation Co., Ltd., 10 Q. B. D. 521, takes exactly the same view. It is true that he speaks of a contract outside of the statute, but he is speaking of the statute. He said that it was contended that the ship was not a British ship, and was a Dutch ship because registered in Holland; but he says he does not think the contention has any foundation at all. If the ship is owned by a British subject, that makes it a British ship, and the flying of a flag and the registration, wherever made, are not material. The question is, who is she owned by? The fact that she is not registered deprives her of advantages, and leaves her open to pains and penalties. On that ground alone I am prepared to overrule this point, because this ship, the Alert, was owned by British subjects, and that being so, I feel tolerably clear that she was a British ship, and a British ship within the meaning of sect. 103. I think it absolutely immaterial whether she was registered or not. That is the main ground for my judgment.

There are other grounds which it is difficult for the defendants to get over. For the purpose of saving expense, an interrogatory was delivered to the defendants asking, “Were you at the date of the accident the registered owners of the Alert?” and the defendants on their oaths said “Yes, we were”; and in addition to that there is no doubt about the fact that for years since the alteration of her three masts to one, the Alert has been going in and out of port and enjoying every advantage as if she were a British ship; and now at a very late stage, and for the purpose of defeating an action, they say we were not. But I do not base my judgment so much on that ground as on the main ground. I think the new trial should take place.

Justice Holroyd: I concur that there should be a new trial. I do not differ, I think, in any respect from the judgment that has been delivered, although I entertained some doubt as to a portion of it, on which my brother Williams has mainly relied. I have doubted whether sects. 18 and 19 of the Merchant Shipping Act, 1854 should not be read together as containing a definition of what should be regarded as a British ship, and whether so reading those two sections, the true construction of them was not that a British ship meant a ship belonging to any of the persons described in sect. 18, and registered under the provision of sect. 19. My doubt, however, is not sufficiently strong to induce me to differ from the judgment just delivered. I think that judgment is supported by a reference to the previous Acts relating to registration, particularly the Act 8 and 9 Vict., c. 88, to which I have just directed my attention. It is called, “An Act for the Encouragement of British Shipping and Navigation,” and it speaks of the conditions which are to attach to a British registered ship, and draws clearly a distinction between a “British registered ship” and a “British ship.” I think that throws some light upon, and gives support to, the judgment of my brother Williams. But, in my opinion, it is too late for the defendants now to turn round and set up this ground at all. For years past the defendants have represented themselves as the owners of a duly registered British ship. They have, by so doing, up to this time avoided payment of the penalties prescribed by sect. 53 of the Act for not informing the registrar that the ship had ceased to be effectually registered, and, of course, they avoided it if the argument maintained by Mr. Schutt is correct. I think still it would be contrary to public policy to allow them to come now and declare that during these years they were not the owners of a duly registered British ship. There is a case which I think supports the view I am taking. It is Tabram v. Freeman, 2 Cr. & M. 451. In that case an attorney, to whom an insolvent was indebted, and who held a cognovit as a security for the debt, and who was employed by the insolvent to prepare his schedule, and acted as his attorney in procuring his discharge, agreed with the insolvent to omit the debt out of the schedule, and that the cognovit should be suspended until after the discharge, and then revived. The insolvent obtained his discharge, and the attorney two years afterwards entered up judgment on the cognovit, and issued execution. The Court, on motion, set aside the judgment and execution, and upon the ground as stated by Gurney, B., at p. 455, that “the plaintiff was the attorney employed by the insolvent, and must be held responsible for the preparation of the schedule. How can he, who prepared the schedule falsely, take advantage of it? It is an act of oppression on the debtor, and a fraud on the law, on the Act, and on the creditors.” The principle of that decision is precisely the same as the principle on which I rely in this case.

Justice A’Beckett: I wish only to add a few words to say that I think that, without the answer to the interrogatory, and without considering the conduct of the defendants, it cannot be said, on the construction of the statutes, that the Alert does not come within the meaning of sect. 103, and that her owners do not come within the liability imposed by that section; and in approaching the subject, I think we have first to consider that the Marine Act 1890 is a Victorian statute, and we have to ascertain what was the meaning of that Victorian statute in saying in sect. 98 that the provisions contained in Part VI. of the Act “shall ... apply to all British ships registered or being at any place within Victoria and to no others.” We must find a meaning for these words, and of course may refer to the English Act for the purpose of interpreting them. One thing required is that the ship shall be a British ship registered in Victoria. Primarily, those words would mean a ship of British nationality. The Alert was a British ship so far as nationality is concerned, and she was at the time of her wreck registered de facto; but Mr. Schutt says that, by reason of a defect in her registration, we are not to regard her as duly registered, and that consequently she has ceased to be a British ship. It seems to me, having regard to what Part VI. deals with—viz., “The Safety and Prevention of Accidents,” that, when a particular obligation is cast upon the owner of a registered ship, it would be an altogether unwarrantable construction of that section to read it as equivalent to “duly registered,” in such a way as to allow an owner to escape its provisions by omitting to do something which the English Act required to make a valid registration. He could not, by his own default, put himself in a position to say that he was not registered, by altering his ship after registration and neglecting to register that alteration. I think, having regard to the object of this legislation, that a registration de facto is sufficient to bring a ship within the provisions of sect. 98. If the Alert was within the section, the only question is whether her owner would be subject to the consequences of not being recognised as the owner of a British ship. What are those consequences? They are defined in sect. 106 of the Merchant Shipping Act 1854, and, as my brother Williams has pointed out, there is nothing in that section to alter the civil liability imposed on the owner by sect. 103 of the Marine Act 1890. I therefore think, on the words of the Act alone, that the defendants have no case on the point raised.

Justice Williams: This appeal will be allowed, with costs, and there will have to be a new trial before a Judge of this Court.

Appeal allowed. New trial ordered before a Judge of the Supreme Court.

FOOTNOTES:

[4] Num. xxxii. 23.