The "Milan."
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 1861 |
| Date | 10 December 1861 |
| Court | High Court of Admiralty |
English Reports Citation: 167 E.R. 167
HIGH COURT OF ADMIRALITY
S. C. 31 L. J. (Adm.) 105; 5 L. T. 590, 1 Mar. L. C. (Crockford) 185. Not applied, The "City of Manchester," 1880, 5 P. D. 221 Adopted, Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Company, 1883, 10 Q B. D 537. Followed, The "Vera Cruz," 1884, 9 P D 96 Considered, The "Bernina," 1887, 12 P. D. 58; affirmed, 13 A C 1. Approved, The "Karo," 1887, 13 P. D 24. Distinguished, The
"Englishman" and The "Australia," [1894] P. 239. Questioned, The "Frankland," [1901] P. 161 Referred to, The "Circe," [1906] P. 1; Astral Shippimg Co. v. The "Tongariro," 1910, 103 L T. 359 Considered, The "Drumlanrig," [1911] A C. 16. Explained and distinguished, The "Devonshire," [1912] A C 634 Referred to, The "Umona," [1914] P. 141
[388] in the high coubt of admiralty. the " milan." December 10, 1861 -Collision-Owner of cargo suing-Both ships to blame-Admiralty rule-17 & 18 Viet c 104, s 298.-The 298th section of the Merchant Shipping Act, 1854, which enacts, that in certain cases of collision the owner of a ship shall not be entitled to recover, does not apply to the owner of cargo suing The negligent navigation of a carrying vessel is not in law the negligence of the owner of the cargo carried, if he is not the owner of the ship , but the rule in the Admiralty Court, that the plamtift in a cause of collision recovers half damages where both ships are to blame, applies to the case of owner of cargo suing alone. Thorogood v. Bryan (8 C. B. 129) not followed. In a cause of collision brought against vessel B by the owners of cargo laden on board yessel A, the Court found both vessels to blame, and vessel A for a breach of the rule imposed by section 296 of the Merchant Shipping Act. Held, that the plaintiffs should recover one-half of their damages. [S. C. 31 L. J. (Adm.) 105; 5 L. T. 590 , 1 Mar. L. C. (Crockford) 185. Not applied, The " Criy of Manchester," 1880, 5 P. D. 221 Adopted, Chartered Mercantile Baitik of India, v. Netherlands India Steam Navigation Company, 1883, 10 Q B. D 537. Followed, The " Vera Cruz," 1884, 9 P D 96 Considered, The " Bermna" 1887, 12 P. D. 58; affirmed, 13 A C 1. Approved, The " Raw" 1887, 13 P. D 24. Distinguished, The "Englishman ' and The "Australia," [1894] P. 239. Questioned, The " FranUand," [1901] P. 161 Referred to, The " Circe," [1906] P. 1 ; Astral Shipping Co. v. The " Tongar-iro," 1910, 103 L T. 359 Considered, The "Drumlanriff," [1911] A C. 16. Explained and distinguished, The "Devonshire" [1912] A C 634 Referred to, The " Umona," [1914J P. 141 ] Collision. This was a cause instituted by British subjects, owners of part of the eargo laden on board the British brig " Lindisfarne," which was sunk by a collision with the British steamer " Milan " On the 28th of November, the cause was heard before the Court, assisted by Trinity Masters, and upon their advice the 168 the "milan" lush. 389. Court held that both vessels were to blame, the " Milan " for proceeding at an undue rate of speed, the " Lindisfarne " for non-observance of the rule of port helm prescribed by the 296th section of the Merchant Shipping Act, 1854 (b) On a subsequent day, the right of the plaintiffs upon this [388] state of facts was argued The following sections of the '' Merchant Shipping Act, 1854," were referred to in the argument and judgment - " S 298 If in any case of collision it appears to the Court before which the case is tned, that such collision was occasioned by the non-observance of any rule for the exhibition of lights or the use of fog signals issued in pursuance of the powers hereinbefore contained, or of the foregoing rule as to the passing of steam and sailing ships, or of the foregoing rule as to a steamship keeping to that side of a narrow channel which lies on the starboard side, the owner of the ship by which such rule has been infringed shall not be entitled to recover any recompense whatever for any damage sustained by such ship in such collision, unless it is shewn to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary " '' S 299 In case any damage to person or property arises from the non-observance by any ship of any of the said rules, such damage shall be deemed to have been occasioned by the wilful default of the peison in charge of the deck of such ship at the time, unless it is shewn to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary Edward James, Q C , Milward and Lushington for the plaintiffs -The first contention of the plaintiffs is that they are not barred from recovering by section 298 of the Merchant Shipping Act That section, though not in form penal, is a disentitling enactment ; it takes away a remedy , in effect, where applicable, it imposes a penalty in this Court to the amount of half the damage suffered, which otherwise by the maritime would be recoverable , it is therefore to be strictly interpreted. The language of the section does not include owners of cargo, it only says that " the owner of the i hip shall not be entitled to recover for any damage sustained by such ship " These terms are specific and limited , and not only is cargo different from ship, but the owner of the ship is most frequently, and in this case was, a different person from the owners of the cargo. In the interpretation clause, section 2, " ship " is denned to " include every description of vessel used in navigation not propelled by oars " Ship cannot mean cargo. If owners of cargo carried in the offending ship were to be affected, they would have been expressly mentioned, as in section 504, which limits the liability of the shipowner against claims of damage by shipowner or owner of goods or passenger And if in section 298 the word " ship " is to be stretched to include cargo, there is no reason why it should [390] not be further stretched to mean " passenger " ; and thus bar the right of the passenger injured by a collision of this kind to sue at common law, or, in case of his death by the accident, the right of his representative to sue under Lord Campbell's Act Can it be considered that such waa the intention of the enactment ? Even granting the intention, it is not expressed, (mod, volmt non dixit No buch intention appears Part IV of the Act, to which section 298 belongs, and which is entitled " Safety and prevention of accidents," throughout deals with the obligations of shipowners and masters only , it makes no reference anywhere to owners of cargo, except in section 329, where, for the benefit of the shipowner, a penalty is enacted against any person sending dangerous goods on board a vessel without notice. The owner of the cargo ought not to suffer ior the breach of the rule of navigation , he is innocent, and the master, who is the guilty party, is not his servant. Section 299 enacts that " in case any damage to person or property arises by the non-observance by any ship of any of the said rules "-a field apparently wider than that covered by section 298-" such (b) A question having also arisen whether the " Lindisfarne " had exhibited proper fog signals, according to the Admiralty regulation, 24th Feb 1858, and 17 & 18 Viet c. 104, s. 295, the Trinity Masters also found that the '" Lindisfarne," which was proceeding in a fog, steering East, with the wind W.S VV , and carrying topgallant studding-sails set both sides, was, nautically speaking, '' on the starboard tack " but as they did not further find that the accident was occasioned by the want of due fog signals, or by improper fog signals, the finding as to the starboard tack became immaterial. .ml the "milan" 169 damage shall be deemed to have been occasioned," that is " occasioned in part," as in section 298, " by the wilful default of the person in charge of the deck." Before the passing of the Act the plaintiffs would have been entitled to recover at least one-half damages, Hay v. Le Neve (2 Shaw's Scotch Appeals, 395); Vaux v. Sheffer (8 Moore, P. C. 75) ; and since the Act the old Admiralty rule has been earned out except wher& superseded by the statute It has even been carried out, when it operated inequitably, as in the case of The " Aurora " and The " Robert Inyham " (ante, p. 327). There is no precedent deciding that owners of cargo are affected by section 298 In The " James " (Swab. 60 ; 10 Moore, P. C. 162), the plaintiff sued on behalf of ship and cargo, and was held barred by the statute, but the distinction between ship and cargo was not taken, and it does not appear that the plaintiff was not the owner of cargo as well as of ship. We also contend that the plaintiffs, as owners of cargo, are entitled to recover their whole loss. The defendants were wrong-doers, and the plaintiffs are innocent. The negligence of the master and crew of the " Lindisfarne " was not, \ve submit, the negligence of the plaintiffs. It is clear that the owners of cargo sued as defendants could not be responsible for the negligence of master and crew This was decided in the recent case of The " Victor "...
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