J. F. Cail and Others, - Appellants; George Michael Papayanni, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 21 July 1863 |
| Date | 21 July 1863 |
| Court | Privy Council |
English Reports Citation: 15 E.R. 778
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
Mews' Dig. tit. Shipping; A. XX. Collision; 7. Limitation of liability; d. f 9. Foreign Ships-Foreign Law. S.C. 32 L.J. Ad. 191; 12 W.R, 24; 2 N.R. 533; Br. and Lush. 151; 9 Jur. (N.S.) 1111; 8 L.T. 805. See Lloyd v. Guibert, 1865, L.R. 1 Q.B. 124; The Halley, 1867, 68, L.R. 2 Ad. and E. 8; L.R. 2 P.C. 203; 5 Moo. P.C. (N.S.) 262; The Northumbria, 1869, L.R. 3 Ad. and E. 11; The Normandy, 1870, L.R. 3 Ad. and E. 157; Ellis v. M'Henry, 1871, L.R. 6 C.P. 236; The Kara, 1887, 13 P.D. 29; Merchant Shipping Act, 1894 (57 and 58 Vict., c. 60), s. 503. As to Admiralty Jurisdiction of Privy Council, see note to Laird v. Brownlie, 1862, 1 Moo. P.C. (N.S.) 41.
[471] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND. J. F. CAIL and Others,-Appellants; GEORGE MICHAEL PAPAYANNI,-Respondent* [July 20, 21, 1863]. The Amalia. Collision in the Mediterranean Sea, beyond British jurisdiction, between an English and Belgian vessel, whereby the latter with her cargo was sunk. Held, that the 54th section of the 25th and 26th Viet. c. 63, with respect to limited liability applied equally to British and Foreign vessels [1 Moo. P.C. (N.S.) 484], It is not necessary that owners of a vessel and cargo preferring their claim in the Court of Admiralty to limited liability, acknowledge in the first instance, that their vessel was to blame. The appeal in this case was brought from an interlocutory decree of the High Court of Admiralty, made in a cause instituted by the Respondents, the owners of a British steam-ship, the Amalia, for the purpose of obtaining a declaration of the Court of the limitation of their liability, in respect of a collision which took place between that vessel and a Belgian steam-ship, the Marie, de Brabant, in consequence of which, the Marie de Brabant, with her cargo was sunk and lost, and several of the crew drowned. The collision in question happened on the 15th of May, 1863, in the Mediterranean Sea, and beyond the British territorial jurisdiction. On the arrival of the Amalia in Liverpool, [472] three actions were instituted in the Admiralty Court against that ship and her freight, by the Appellants the owners of the Marie de Brabant, and the owners of the cargo which had been laden on board the Marie de Brabant, for the purpose of recovering damages in respect of the collision. The Respondents, the owners of the Amalia, thereupon instituted a cross suit in the Admiralty Court, and filed a petition claiming in respect of such collision a declaration of the Court of the limited liability appointed by the 54th section of the Merchant Shipping amendment Act, 1862 (25th and 26th Viet. c. 63). The admission of this petition was demurred to on the part of the Plaintiffs and on the 4th of July, 1863, the learned Judge of the Admiralty Court (the Right Hon. Dr. Lushington) gave judgment, overruling the demurrer and admitting the * Present: Lord Chelmsford, the Lord Justice Knight Bruce, and the Lord Justice Turner. 778 GAIL V. PAPAYANNI AMALIA (THE) [1863] I MOORE N.S., 473 petition. The material part of this judgment was in these terms:-"A collision took place on the 15th of May last, in the Mediterranean Sea, between the British ship Amalia, and a Belgian ship called the Marie de Brabant. Several actions were entered against the Amalia, by the owners of the Belgian ship, and by the owners of cargo laden on board the Belgian ship. The owners of the Amalia seek to have the benefit of limited liability, under the Merchant Shipping Act amendment Act of 1862, section 54; this Court by the 13th section of the Admiralty Court Act, 1861 (24th Viet. c. 10) being authorized to exercise the same jurisdiction as the Court of Chancery in these matters. The question, therefore, is, whether by the Merchant Shipping amendment Act of 1862, the British owners of the Amalia are entitled to the benefit of limited liability, or in other words, whether when a collision takes place on the high seas [473] between a British and a Foreign ship, the British ship is by the Statute entitled to limited liability. The question depends upon the construction of the Statute and upon nothing else. Limited liability was no part of the law of England until it was established by Statute. Lord Tenterden, in the 4th part of his work, chap. VI., gives the history of limited liability. He states that by the Common law, limited liability did not exist; that the first Statute creating it was the 7th Geo. II. c. 15 ; and he refers to the subsequent Statutes, and gives some account of the creation of limited liability in Foreign States. I must say that this learning has but a remote bearing upon the question before me ; it only shows that to a certain extent the law of England has adopted the principle of limited liability, but under what circumstances, and to what extent, must depend upon the interpretation to be given to the Statute under consideration. The principle of limited liability is, that full indemnity, the natural right of justice, shall be abridged for political reasons. The cases under the law prior to 1862, are valuable as illustrations, but they are not precedents. Before, however, I come to consider the words of the Act, let me notice the objection which prwia facie may be urged against a construction giving limited liability to a British ship having been in collision with a Foreign ship on the high seas. The objection is this, that to exempt a British ship in such circumstances from full liability, the Act of Parliament is legislating against the Foreigner with respect to an act done on the high seas out of British jurisdiction; and in support of this objection are properly cited the decisions in which a British ship coming into collision with a Foreign ship has been exempted from the consequences of not having complied with the [474] Merchant Shipping Act with...
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