Harmer v Errington Bell and Others
| Jurisdiction | UK Non-devolved |
| Judgment Date | 10 December 1851 |
| Date | 10 December 1851 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 884
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY.
Mews' Dig. tit. Shipping; A. XX. Collison; 3. Liability, b. S.C. below 3 Rob. W. 220. On point (i.) as to martime lien (7 Moo. P. C. 283, 284, 285), see The Mary Ann, 1865, 1 Ad. and E. 72; The Charles Amelia, 1868, 2 ad. And E. 333; The Two Ellens, 1871, 3 Ad. and E. 357; The Parlement Beldge, 1880, 5 P.D. 106; Stoomvaart Maatschappy Nederland v. P. and O. Stream Navigation Co., 1882, 7 A. C. 817; The Heinrich Bjorn, 1885-86, 10 P. D. 54, 11 A. C. 284; The Tasmania, 1888, 13 P.D. 115; Currie v. M'Knight (1897), A.C. 97; (ii.) as to lis alibi pendens, see The Mali Ivo, 1869, 2 Ad. and E. 359.
VII MOORE, 267 HAEMER V. BELL - BOLD BUCCLEDGH (the) [1850-51] [267] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. DANIEL HARMER, - Appellant; WILLIAM ERRINGTON BELL and Others,- (H* m). f. 23 7, Respondents * [Dec. 16, 1850 ; May 16, and Dec. 10, 1851]. 1 ' - the "bold buccleugh." f -i~ Damage creates a lien on the ship causing the collision [7 Moo. P.C. 283]. lG33.~ *-3 1- A Scotch steamer ran down an English vessel in the Humber. An action was ty3&,T.(4t. commenced in the Court of Admiralty in England, by the owners of the 103% &,.£ò .fott- English vessel, against the owners of the steamer, and a warrant of arrest ' issued against the ship ; but, before the ship could be arrested, she had sailed for Scotland. A suit was then commenced by the owners of the English vessel against the owner of the steamer, in the Court of Session in Scotland, for the damage, and the steamer was arrested under process of that Court, but subsequently released upon, bail. Afterwards, and pending these proceedings, the steamer was sold, without notice to the purchaser of this unsatisfied claim .against her. The proceedings in the Court of Session were still pending, when the steamer having come within the jurisdiction of England, was again arrested under process of the High Court of Admiralty in England, and an action for damage commenced in that Court, for the same cause of action as was still pending in Scotland, instructions being sent to Scotland to abandon the proceedings in the Court of Session. The owner of the steamer appeared under protest in the Admiralty Court, and pleaded, "first, Us alibi pendens; and, secondly, that he was a purchaser for value without notice. Held by the Judicial Committee, overruling such protest, - First, that the plea of Us alibi pendens was bad, as the suit in Scotland was, in the first instance, in personam, the proceedings being commenced by process against the persons of the owners of the vessel, (the Defendants,) and the arrest of the steamer only collateral to secure the debt, while the proceedings in the Admiralty Court in England were, in the first instance, in rein, against the vessel, and, therefore, the two suits being in their nature different, the pendency of one suit could not be pleaded in suspension of the other [7 Moo. P.C. 286]. Secondly, that as, by the Civil law, a maritime lien does not include or require possession, but being the foundation of proceedings in rem (a process requisite only to perfect a right inchoate from the moment the lien attaches), such lien travels with the thing into whosesoever possession it may come, and when carried into effect by a proceeding in rem, relates back to the period when it first attached ; the steamer was liable for the damage committed by her, though in the hands of a purchaser without notice of the damage, or the proceedings instituted against her [7 Moo. P.C. 284, 285]. Semble : Such lien arising out of damage is not indelible, but may be lost by negligence or delay, where the right of third parties are compromised [7 Moo. P.C. 285]. Distinction between proceedings in rem, in the Admiralty Court in England and Foreign attachment in the City of London [7 Moo. P.C. 282, 283], This appeal originated in a cause of damage, civil and maritime, promoted by ò the Respondents, the o wn-[268]-ers of the barque William,, against the steam-ship, the Bold Buccleugh, by reason of a collision between these vessels. * Present at the first hearing, on the 16th of December, 1850, and 16th of May, 1851 : - Lord Lang-dale, Mr. Baron Parke, Sir Herbert Jenner Fust, and the Right Hon. Sir Edward Ryan. Present at the second hearing, on the 10th of December, 1851 :ò - The Chief Baron of the Exchequer (Sir Frederick Pollock), the Chief Justice of the Common Pleas (Sir John Jervis), the Right Hon. T. Pemberton Leigh, and the Right Hon. Sir Edward Ryan. 884 HARMER V. BELL-BOLD BUCCLEUGH (the) [1850-51] VII MOORE, 269 The Bold Buccleugh belonged to the Edinburgh and Dundee Steam Packet Company, trading between Leith and Kingston-upon-Hull, in Yorkshire, the partners of which Company were all resident in Scotland. The collision, took place in the river Humber, on the 14th of December, 1848, when the barque William was run down by the Bold Buccleugh, and totally lost. On the 19th of the same month, an action for damage was entered in the High Court of Admiralty in England, on behalf of the Respondents (who were domiciled and resided in England), the owners of the barque William,, against the Bold Buccleugh and the partners of the Edinburgh and Dundee Steam Company, and a warrant of arrest was extracted and forwarded to Hull to be executed; but the Bold Buccleugh had left that port for Leith, before the arrival of the warrant, and consequently could not be arrested. [269] The owners of the William then applied to the owners of the Bold Buccleugh to give bail to the action, which they declined to do, and the Bold Buccleugh, still continuing out of the jurisdiction of the Admiralty Court, and within the jurisdiction of the Scotch Courts, the owners of the William, on the 30th of January, 1849, commenced a suit against the owners of the Bold Buccleugh, in the Court of Session in Scotland, and the steamer was forthwith arrested in Leith harbour; but on bail being given to answer the action in that Court, she was released. By a bill of sale, dated the 26th of June, 1849, the owners of the Bold Buccleuyh sold her absolutely to the Appellant for £4800, without notice to him of any unsatisfied claim arising out of the damage done to the William, or any suit pending in regard thereto, in the Court of Session, in, Scotland; but in August following, the vessel having returned to Hull, was again arrested by virtue of a warrant, under seal of the High Court of Admiralty, and a fresh action commenced in that Court, instructions being sent to Scotland for the immediate abandonment of the suit in the Court of Session. An appearance under protest was entered by the Appellant, and an Act on Petition brought in on his behalf, disclaiming the jurisdiction of the Court of Admiralty to entertain the second suit. The Act alleged, that on the 30th of January, 1849, a suit was commenced in the Court of Session in Scotland, on behalf of the owners of the William, against the Edinburgh and Dundee Steam Navigation Company, the then owners of the Bold Buccleugh, in order to obtain compensation for the loss sustained by them in respect of the barque having been run [270] down by the Bold Buccleugh, and totally lost. That in pursuance of the writ of summons issued in the said suit, the Bold Buccleugh was arrested, but bail having been given on behalf of the owners, she was released. That this suit and also another suit instituted in the same Court, on behalf of the owners of the cargo laden on board the William, against the then owners of the Bold...
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