Seward v Owners of The Vera Cruz
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 1884 |
| Date | 28 April 1884 |
| Court | Court of Appeal |
Court of Appeal
Brett, M.R., Bowen and Fry, L.JJ.
The Vera Cruz
The FranconiaDID=ASPM 3 Asp. Mar. Law Cas. 435 36 L. T. Rep. N. S. 640 2 P. Div. 163
The BilbaoENR Lush. 149 1 Mar. Law Cas. O. S. 5 3 L. T. Rep. N. S. 338
The MalvinaENR Lush. 493 1 Mar. Law Cas. O. S. 218 6 L. T. Rep. N. S. 369
Bright v. Hutton 3 H. of L. Cas. 341
Ridsdale v. Clifton 2 P. Div. 276 34 L. T. Rep. N. S. 515
Collision Lord Campbell's Act (9 & 10 Vict. c. 93) Action in rem Foreign ship
270 MARITIME LAW CASES. Ct. of App.] The Vera Cruz. [Ct. of App. Supreme Court of Judicature. COURT OF APPEAL. April 22, 23, and 28,1884. (Before Brett, M.R., Bowen and Fry, L.JJ.) The Vera. Cruz, (a) ON APPEAL FROM THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION (ADMIRALTY). Collision - Lord Campbell's Act (9 & 10 Viet. c. 93) Action in rem - Foreign ship - Jurisdiction - Admiralty Court Act (24 Vict. c. 10), s. 7 - Limitation of liability - Appeal - Practice. The Admiralty Division of the Sigh Court of Justice has no jurisdiction to entertain an action in rem under Lord Campbell's Act, and hence the personal representatives of a deceased person hiiledby the negligence of those on board a foreign ship.ina collision between that ship and a British ship on waters within Her Majesty's dominions cannot sustain an action in rem against the owners of the foreign ship to recover damages for ihe loss of the deceased; but, semble (per Brett, M.B.), that, if in action for limitation of liability some of the claimants are the persons mentioned in Lord Campbell's Act, the Admiralty Division may entertain the claim. Although, in consequence of the Court of Appeal being equally divided in opinion, the decision of the court below stands, yet the Court of Appeal is not bound thereby on a subsequent occasion, though, semble (per Brett M.R.), it is otherwise in the case of the House of Lords, This was an action in rem brought under Lord Campbell's Act by Mary Seward, the widow and administratrix of William Soward deceased, late master of the British schooner Agnes, against the owner of the Spanish steamship Vera Cruz, to recover compensation for the pecuniary loss sustained by the plaintiff in consequence of William Seward's death, which was occasioned by a collision between the Agnes and the Veru Cruz, on waters within Her Majesty's dominions. The collision took place in the Crosby Channel, at the entrance to the Mersey, between the Crosby and Formby lightships on the 12th Aug. 1882. An action in rem had previously been brought against the Vera Cruz by the owners of the Agnes, to recover damages for the loss of the Agnes. In that action the court had found both ships to blame. The defendant in the present action appeared under protest (a), and the following petition on protest against the jurisdiction of the court was filed on his behalf: 1. The plaintiff is a British subject and is resident at or near Ulvorstone in the county of Lancaster. 2. The defendant is a subject of His Majesty the Xing of Spain and is resident within that kingdom. 3. The defendant ia the sole owner of the steamship or vessel Vera Cruz, which is a Spanish vessel belonging to the port of Bilboa, in Spain, and which is rxfc registered in the United Kingdom of Groat Britain. 4. On or about the 12th Aug. 1882, the Cera Crux was in theCrosby Channel between the Crosby and Formby lightships, on a voyage from Liverpool to ports in Spain and else\vharo,and whilst in the prosecution of the said voyage, and when at the place aforesaid, the Vera Cruz came into collision with the British vessel, the schooner Agnes, and by reason of the said collision the Agnes was sunk and her master and some of her crew and passengers were drowned, 5. The Vera Cms was in the port of Liverpool in the month of Jnly 1883. 6. On or about the 13th Jnly 1883, the Vera Cruz was arrested ia a suit in rem instituted in the Admiralty Division of this honourable court by the owners of the (schooner Agnes to recover damages sustained by the owners of the Agnes by reason of the aforesaid collision. The present action in rem was commenced by the plaintiff on the 23rd Nov. 1882, and the indorsement on the said writ is in the words and figures following: " The plain- (a) It would appear fromthi? case that the Admiralty Conrt procedure of appearance under protest is not abolished by the Boles of the Supreme Court 1883. By these rules it is enacted that " The orders and rules mentioned in Appendix O. hereto ara hereby annulled, and the following orders and rules shall stand in lieu thereof." In Appendix O. are contained the rules, orders, and regulations for the High Court of Admiralty 1859 and 18/1, by, which it was directed (infer alia) that ".If the prootor intends to object to the jurisdiction of the conrt, the appearance may be entered under protest." The result of this would at first sight anpear to be that this mode of procedure was abolished! were it not for Order LXXII., r.2. which states that, " Where so other provision is made by the Acts or these Bales, the present procedure and practice remain in force;" and on reference to the rules it will be found that no provision for appearance under protest is made. However, by Order XII., r. 30, a defendant is entitled to enter a " conditional" appearance, and then move to set asido the service of the writ upon him, a procedure similar in principle to appearance under protest. On this subject see the oases of The Pieve Superiors (vol. 2, p. 319; L. Rep. 5 P. C. 482; The Vivar (vol. 3, p. 308: L. Rep. 2 P. Div. 29), TheCity of Mecca (vol. 4, p. 412; L. Rep. 8 P. Div. 106), and The Leon XIII. (vol. 5, p. 73 L. Rep. 8 P. Div. 121). (a) Reported by J. P. Aspinall, and F. W. Raikes Esqrs., Barristers-at-Law. MARITIME LAW CASES. 271 Ct. of App.] The Vera Cruz. [Ct. of App. tiff as administratrix, with the will annexed of her lute husband William Seward, deceased, late master of the vessel Aanes, claims L1000 against the owners of the ship or Teasel Vera Crus and her freight for damages for the loss of the said William Seward's life, occasioned by a collision which took place at the month of the Mersey in the month of Aug. 1882, and the sum of 3 3s. for costs. It the amount claimed is paid to the plaintiff or her solicitor or agents within four days from the service hereof, further proceedings will be stayed." 7. Bail was given in the said first-mentioned action and the Vera Crux was thereupon released and sailed front England on or about the 17th July, 1883. 8. This honourable court has no jurisdiction to entertain the aaid cause of damages for loss of life, and by reason thereof ihe service of the said writ on the Vera Cruz is in the circumstances stated in this petition irregular and void. The defendants therefore pray this honourable court to pronounce against the jurisdiction of this honourable court and to dismiss this suit with damages and costs. The allegations in the protest, with the exception of paragraph 8, were admitted by the plaintiffs. On the petition...
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