Couper v Mackenzie
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1906 |
| Date | 20 July 1906 |
| Docket Number | No. 175. |
| Court | Court of Session |
Lord Kyllachy, Lord Stormonth-Darling, Lord Low, Lord Justice-Clerk.
ShipRegisterFishing Boat RegisterCollisionLimitation of LiabilityMerchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), secs. 2, 373, 503, and 508.
The Merchant Shipping Act, 1894, Part I., sec. 2, enacts (1) that every British ship shall be registered under this Act; and (2) that a ship not registered under this Act shall not be recognised as a British ship; and Part IV., sec. 373, requires every fishing boat (not exempted by regulations made by Order in Council) to be registered in the Fishing Boat Register. Fishing boat is defined as a vessel of whatever size when employed in sea-fishing. By sec. 742 ship includes any vessel used in navigation not propelled by oars. Held that a British fishing boat registered only in the Fishing Boat Register under Part IV., and not under Part I. of the Act, was a British ship registered under this Act, within the meaning of sec. 2 of the Act, and consequently that its owner was entitled to the limitation of liability for injury caused by the fault of the vessel conferred by sec. 503 of the Act.
ExpensesShipCollisionPetition for Limitation of LiabilityMerchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), sec. 504.
The respondent in a petition for limitation of liability under sec. 504 of the Merchant Shipping Act, 1894, who unsuccessfully opposed the petition on the ground that the petitioner was not entitled to the benefit of limitation, held liable to the petitioner in expenses, in so far as caused by the respondent's contention that the petitioner was not entitled to proceed under the petition.
On 22d February 1905 the steam sea-fishing boat Pansy, of Helmsdale, came into collision with the sea-fishing boat Swift, of Burghead, with the result that the Swift was sunk, and became a total loss. The collision was due to the fault of those on board the Pansy, but without the actual fault or privity of her owner, George Couper.
Daniel Mackenzie, fisherman, Burghead, having (in his own right and as assignee of other fishermen) brought an action against Couper for decree for sums amounting in all to 1299, 18s., as damages on account of the collision, Couper presented a petition for limitation of liability under sec. 503 of the Merchant Shipping Act, 1904.
The petitioner stated:The petitioner is the registered owner of the British steam sea-fishing boat Pansy of Helmsdale, the gross tonnage of which is 7261 tons. The berthing accommodation for seamen and apprentices and appropriated to their use amounts to 1320 tons, which, being deducted, leaves a tonnage of 5941 tons. The Pansy was not registered under Part I, of the Merchant Shipping Act, 1894. She was registered under Part IV. of the Merchant Shipping Act, 1894. She was measured, and her deductions in respect of crew accommodation were ascertained with a view to registration under Part I. of said Act, but said registration under Part I. was never carried through. Her measurements were duly made by a Board of Trade surveyor, with a view to registry under Part I. of said Act, and these measurements were adopted as correct when she was registered under Part IV. of the Act, conform to certificate granted by him. The petitioner's liability for damages caused
by said collision as owner of the said British steamship is therefore limited to 8 per ton on said 5941 tons, or 475, 2s. 8d. in respect of loss or damage to vessels, goods, merchandise, or other things.
Mackenzie lodged answers in which he stated:
The register entry of the said British steam sea-fishing boat Pansy in the register of fishing boats, under Part IV. of the Merchant Shipping Act, 1894, is referred to for its items, beyond which no admission is made. The amount of the berthing accommodation for seamen and apprentices, and appropriated to their use, is not entered in said register.
Denied that the petitioner's liability for loss and damage caused by said collision is limited under section 503 of the Merchant Shipping Act, 1894, and that the petitioner is entitled to have his liability limited under the said Act. The said section applies only to the owners of ships, British or foreign, registered under said Act. The
said fishing boat Pansy was not registered as a British ship under said Act, as provided by Part I. thereof, and is therefore not entitled to recognition as a British ship, or to the benefits, privileges, advantages, or protection enjoyed by British ships, within the meaning and under the provisions of the said Act. The petitioner, as owner of the said Pansy, is therefore not entitled to limitation of liability under section 503 of the said Act, and the prayer of the petition accordingly should be refused.
The respondent further maintains that the said Pansy not having been registered under the said Act, and the measurements and deductions contained in the surveyor's certificate produced by the petitioner not having been entered in the register of British ships appointed to be kept by the said Act in terms of Part I. thereof, the said certificate is inadmissible as evidence of measurements and deductions, and is ineffectual and of no force or effect whatever, and
the petitioner is not entitled to found thereon for the purpose of making the deductions claimed.
The nature of the arguments at the hearing sufficiently appears from the opinions of Lord Kyllachy and Lord Stormonth-Darling.
At advising,
Lord Kyllachy.The question in this case is whether the petitioner's vessel, the Pansy, required to be registered under Part I. of the Act of 1894. She was undoubtedly registered as a British sea-fishing boat under Part IV. of the Act; but the respondent says that, although a British fishing boat, she is also a British ship, and as such is bound also to register under Part I. It is not disputed that, if being bound so to register under Part I., she does not do so, she is thereby debarred from recognition as a British ship; and further, that if so debarred, she is, under section 508 of the Act, expressly deprived of the limitation of liability provided by the 503d section in favour of all ships, British or foreign, the limitation which her owner seeks to make good in the present petition.
It must be acknowledged that the question thus raised is a large one. For I agree with the petitioner's counsel that it virtually applies to all sea-fishing boats, that is to say, to all sea-fishing boats not propelled by oars, whatever their tonnage. In other words, the exemption under section 3, subsection 1, does not, so far as I see, cover sea-fishing boats, even if under 15 tons burthen; while the exemption in subsection 2 of the same section applies only to a particular class of vessels fishing or trading on the shores of Newfoundland or in the Gulf of St Lawrence. Hence, the respondent's contention seems to involve, among other results, this, that all British sea-fishing boats, if they are registered only under Part IV. of the Act of 1894, are in the position of being offenders against the Act, and are thereby subject not only to the penalty of non-recognition as British ships, with all the disabilities thence arising, but also to the further penalty of being liable to detention at any port until a certificate of registrationthat is to say, a certificate of registration under Part I.is produced by the master. This is plainly involved in the provisions of section 2, subsection 3, which, if the respondents are right, so enacts in express terms. It is not a question of option to registeroption which if not exercised involves the loss of certain privileges. There is much more involved than the loss of privileges; and even as regards privileges, the loss, it will be observed, results really because being required to register, the vessel by not doing so is in default, and is thus under the Maritime Code really in a position of outlawry.
It must also be acknowledged that the question being thus large, the proposition maintained by the respondenthaving regard to the general
scheme of the Actis somewhat difficult. For not only does the Act of 1894 (differing from the previous Act of 1854, which was passed before there was any registry of fishing ships) recognise a separate registry of fishing ships, but also, by partly incorporating the provisions of the Act of 1868 (which first established that register), makes careful provision for the expansion of that register by...
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