The Dictator
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1892 |
| Date | 10 May 1892 |
| Court | Probate, Divorce and Admiralty Division |
Probate, Divorce, and Admiralty Division
Jeune, J.
The Dictator
The Five Steel BargesDID=ASPM 63 L. T. Rep. N. S. 499 15 P. Div. 142 6 Asp. Mar. Law Cas. 580
The Jonge BastianENR 5 Ch. Rob. 322
Johnson v. Skippen 2 Ld. Ray. 983
Castrique v. Imrie 4 H. of L. 431
The Ruby QueenENR Lush. 266
The Clara Swa. 3
The Heinrich BjornELRELR 10 P. D. 44 11 App. Cas. 270 6 Asp. Mar. Law. Cas. 1
The VictorENR Lush. 72
The Dundee 1 Hagg. 109
The KhediveELRDID=ASPM 47 L. T. Rep. N. S. 198 7 App. Cas. 813 4 Asp. Mar. Law Cas. 567
Brown v. WilkinsonENR 15 M. & W. 398
The VolantENR 1 W. Rob. 388
De Lovio v. Boit 2 Gallison, 461
The Triune 3 Hag. 114
The AlineENR 1 W. Rob. 111
The HopeENR 1 W. Rob. 154
The Temiscouata 2 Spks. 208
The Kalamazoo 15 Jur. N. S. 885
The Zephyr 11 L. T. Rep. N. S. 350 2 Mar. Law Cas. O. S. 146
The Bold Buccleuch 7 Moo. P. C. C. 267
The Johann FriederichENR 1 W. Rob. 35
The Parlement BelgeDID=ASPM 42 L. T. Rep. N. S. 273 5 P. Div. 218 4 Asp. Mar. Law Cas. 234
The John DunnENR 1 W. Rob. 159
The Freedom L. Rep. 3 A. & E. 495
The Wild RangerENR Br. & Lush. 87
The HeroENR Br. & Lush. 448
The FreirDID=ASPM 32 L. T. Rep. N. S. 572 2 Asp. Mar. Law Cas. 589
The MiriamDID=ASPM 2 Asp. Mar. Law Cas. 259 30 L. T. Rep. N. S. 537
The Flora L. Rep. 1 A. & E. 45 2 Mar. Law Cas. O. S. 324 14 L. T. Rep. N. S. 191
The StaffordshireUNKDID=ASPM L. Rep. 4 P. C. 211 1 Asp. Mar. Law Cas. 365 27 L. T. Rep. N. S. 46
ChristiansborgDID=ASPM 53 L. T. Rep. N. S. 612 10 P. Div. 155 5 Asp. Mar. Law Cas. 491
The Silver Bullion 2 Spks. 75
The Johannes L. Rep. 3 A. & E. 127
The Orient L. Rep. 3 C. P. 696
Salvage — Action in rem — Bail
MARITIME LAW CASES. 251 IN BANK.] THE DICTATOR. [ADM. PROBATE, DIVORCE, AND ADMIRALTY DIVISION. ADMIRALTY BUSINESS. Tuesday, May 10,1892. (Before JEUNE, J.) THE DICTATOR. (a) Salvage-Action in rem-Bail-Award in excess of claim-Writ-Personal liability of defendants. Where in a salvage action in rem claiming 5000l., in which the defendants' solicitors gave a written undertaking to appear and put in bail in an amount not exceeding 5000I., the Court awarded 7500l., and subsequently ordered the indorsement on the writ to be amended by altering the claim from 50002. to 8500l., the plaintiff's were allowed to issue execution against the. defendants person ally for the amount of the award, and were not (a) Reported by BUTLER ASPINALL, Esq., Barrister-at-Law. 252 MARITIME LAW CASES. ADM.] THE DICTATOR. [ADM. restricted to the amount named in the undertaking to put in bail. THIS was a summons by plaintiffs in a salvage action for particulars of the names and addresses of the defendants. The plaintiffs by their writ claimed 5000l for salvage services rendered to the steamship Dictator, her cargo and freight. The defendants' solicitors gave the following written undertaking: We undertake to appear for the defendants in due course, and to rove values in the usual manner and put in bail whenever required in an amount not exceeding 5000l. At the hearing of the action on the 26th Nov. 1891 the President (Sir Charles Butt) awarded the plaintiffs 7500l From this decision the defendants appealed, but the Court of Appeal upheld the award. On the 16th Dec. 1891 the writ was amended by order of the President, increasing the amount claimed from 5000l. to 8500l. The present summons was, by order of the judge, adjourned into court, when it was agreed between the parties that the application should be treated as one to determine whether execution could be issued against the defendants for more than 5000l. and costs. Rules of the Supreme Court 1883: Order XLII., r. 3. A judgment for the recovery by or payment to any person of money may be enforced by any of the modes by which a judgment or decree for the payment of money of any court whose jurisdiction is transferred by the principal Act might have been enforced at the time of the passing thereof. Rule 17. Every person to whom any sum of money or any costs shall be payable wider a judgment or order shall, so soon as the money or costs shall be payable, be entitled to sue out one or more writ or writs of fieri arias or one or more writ or writs of elegit to enforce payment thereof. Admiralty Court Act 1861 (24 vict. c. 10): Sect. 15. All decrees and orders of the High Court of Admiralty, whereby any sum of money or any costs, charges, or expenses shall be payable to any person shall have the same effect as judgments in the Superior Courts of common law, and the persons to whom any such moneys or costs, charges, or expenses shall be payable shall be deemed judgment creditors, and all powers of enforcing judgments possessed by the Superior Courts of common law, or any judge thereof, with respect to matters depending in the same courts, as well against the ships and goods arrested as against the person of the judgment debtor, shall be possessed by the said Court of Admiralty with respect to matters therein depending; and all remedies at common law possessed by judgment creditors shall be in like manner possessed by persons to whom any moneys, costs, charges, or expenses are by such orders or decrees of the said Court of Admiralty directed to be paid. Sect. 32. Any new writ or other process necessary or expedient for giving effect to any of the provisions of this Act may be issued from the High Court of Admiralty in such form as the judge of the said court shall from time to time direct. Barnes, Q.C., for the plaintiffs, in support of the application.-The plaintiffs having got judgment against the defendants as well as against the res, ought to get the benefit of such judgment. The defendants by appearing submit themselves to the jurisdiction of the court. If their contention be correct, the court will be unable to give effect to its own judgment, merely because he plaintiffs instituted the proceedings in rem instead of in personam. Order XLII., rr. 3 and 17, and sects. 15 and 22 of the Admiralty Court Act 1861, give the court the necessary powers to enable it to order execution against the defendants for the whole amount of the award. Sir Walter Phillimore, for the defendants, contra.-The defendants' limit of liability is the bail, or in this ease the sum specified in the undertaking, viz., 5000l. The actions in rem, and in personam are distinct, and have different results. The writ in rem is directed to the owners and parties interested in the res. Owners by appealing in an action in rem only do so to protect their interest in the res. The judgment is against the res. If no appearance is entered by the owner, the court's jurisdiction is limited to the res. The mere fact of appearance cannot give the court any greater jurisdiction. The exception which proves the rule contended for, is the power of the court to issue a monition in personam for the payment of costs, where the damages recovered and costs exceed the amount in which the suit was instituted. The court has also, under sects. 15 and 22 of the Admiralty Court Act 1861, ordered a re-arrest of the res. But there is no authority for the present application: The Temiscouata, 2 Spke. Ec. & Ad. 208; The Freedom, L. Rep. 3 A, & E. 495; 1 Asp. Mar. Law Cas. 136; 25 L. T. Rep. N. S. 392; The Kalamazoo. 15 Jur. 885; The Christiansborg, 10 P. Div. 141; 5 Asp. Mar. Law Cas. 491; 53 L. T. Sep. N. S. 612; The Staffordshire, L. Rep. 4 P. C. 194; 1 Asp. Mar. Law Cas. 365; 27 L. T. Rep. N. S. 46. The court cannot engraft proceedings in personam upon proceedings in rem: The Hope, 1 W. Rob. 154; The Volant, 1 W. Bob. 383. The Judicature Acts and the Admiralty Court Act 1861 have only altered procedure, and not the rights of parties. Judgment can only be drawn up according to the writ, i.e., against the owners appearing to protect their interest in the res to the extent of 5000l. If the plaintiffs' contention be right, mortgagees by appearing in an action in rem to protect their interest would render themselves personally liable to the judgment of the court. The plaintiffs' remedy is to institute fresh proceedings in personam: The Orient, L. Rep. 3 P. C. 696; 1 Asp. Mar. Law Cas. 108. Barnes, Q.C. in reply.-The cases relied on by the defendants were prior to the Admiralty Court Act 1861. On the authority of The Five Steel Barges (63 L. T. Rep. N. S. 499; 15 P. Div. 142; 6 Asp. Mar. Law Cas. 580), these proceedings might have been in personam, and had they been so, there would have been no difficulty in granting the present application. The plaintiffs have a maritime lien for the value of their services, which the court has fixed at 7500l., and amended the writ in accordance with such award. The res has been re-arrested where insufficient bail has been taken: The Flora, L. Rep. 1 A. & E. 45; 2 Mar. Law Cas. O. S. 324; 14 L. T. Rep. N. S. 191; The Freedom (ubi sup.); The Johannes, L. Rep. 3 A. & E. 127; 3 Mar. Law Cas. O. S. 462; 23 L. T. Rep.N. S. 26; The Hero, Br. & L. 447; The Miriam, 2 Asp. Mar. Law Cas. N. S. 259; 30 L. T. Rep. N. S. 537. In the case of The Zephyr (11 L.T. Rep. N-S. 351; 2 Mar. Law Cas. O. S. 146) Dr. Lushing- MARITIME LAW CASES. 253 ADM.] THE DICTATOR. [ADM. ton made an order against the defendant personally to pay a balance of...
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