The "Wild Ranger."
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1863 |
| Date | 23 June 1863 |
| Court | High Court of Admiralty |
English Reports Citation: 167 E.R. 249
HIGH COURT OF ADMIRALTY
S. C. 32 L. L. (Adm) 49; 9 Jur (N. S) 134, 7 L T. 725, 11 W R 255: 1 Mar. L. C. (Crockford) 275 Followed, The "Leon," 1881, 6 P D 149 Referred to, Davidson v. Hill, [1901] 2 K B 606.
[553] the " wild eanger." December 2, 1862.-Collision on high seas between a British skip and a foreign ship-Limited liability under 17 & 18 Viet c. 104, s. 504; 24 Viet. c. 10, s. 13-Reciprocity-Security for costs.-The owners of a foreign ship found to blame for a collision on the high seas with a British ship 250 THE " WILD RANGER " LUSH 664. are not entitled to limited liability under the 504tb section of the Merchant Shipping Act, 1854 The ancient maritime law renders the owner of a ship, by the negligent navigation of which damage has been done to another vessel on the high seas, liable to the full extent of the damage done . and the right under this law of a British plaintiff against the owner of an American ship for damage done on the high seas is not abridged by any joint operation of a British statute limiting the liability of British shipowners, and an American statute according a right of limited liability to shipowners generally Cope v. Doherty (4 K. & J. 367 , 2 De G. & J 614, followed) Observations in " Carl Jokan" (3 Hagg 187, dissented from). A foreign shipowner resident out of the jurisdiction, who has been condemned as a defendant in a cause of damage, will be required to give security for costs on filing a petition praying for a declaration of limited liability [S C. 32 L. J. (Adm ) 49; 9 Jur (N. S ) 134, 7 L T. 725 , 11 W R 255: 1 Mar. L C. (Crockford) 275 Followed, The " Leon," 1881, 6 P D 149 Referred to, Davids-son v. Hill, [1901] 2KB 606.] This ease arose out of a petition filed on behalf of Paul Sears, the managing owner of the American ship " Wild Ranger,"' for a declaration of limited liability according to the Merchant Shipping Act, 1854 The petition pleaded - " 1. That the said ship ' Wild Ranger " is an American vessel belonging to the said Paul Sears (the managing owner) and others, all of Boston, in the state of Massachusetts, in the United States of America " 2 That on the 3rd day of January 1862 a collision took place between the said ship 'Wild Ranger ' and the British ship ' Coleroon,' on the high seas, about 30 miles S.S W of the Scilly Isles, whereby both vessels sustained considerable damage. "' 3 That on the llth day of January 1862 a cause of damage was instituted on behalf of the owners of the ' Coleroon,' against the ' Wild Ranger ' and her freight, in the sum of £3500 "4. That on the 14th day ot January 1862 bad was given on behalf of the owner of the ' Wild Ranger ' to answer the said action, and the ' Wild Ranger,' which had been arrested in the said action, was thereupon released " 5. That on the 18th day of January 1862 an action was [554] entered against the ' Wild Ranger ' and her freight in the sum of £9000, on behalf of the owners of the cargo laden on board the ' Coleroon ' at the time of the said collision, and the ' Wild Ranger ' was thereupon again arrested, and still remains under arrest in the said action " 6. That no freight was earned by the ' Wild Ranger ' during the voyage which was in prosecution at the time of the said collision " 7. That the said sums ot £3500 and £9000 together far exceed the value of the ' Wild Ranger ' "8. That the Right Honorable the Judge of this Court, by his judgment pronounced on the 27th day of February 1862, held that the ' Wild Ranger ' was solely to blame for the said collision " 9. That by section 504 of the Merchant Shipping Act, 1854, the owners of the ' Wild Ranger ' are not answerable in damages to the plaintiffs in the above-mentioned actions to an extent beyond the value of their said ship the ' Wild Ranger.' " The petition then prayed the Judge to dismiss the bail, and to pronounce that the owners of the " Wild Ranger " were not liable in law for the damages sustained by the said plaintiffs in consequence of the said collision, to an extent beyond the value of their said ship the " Wild Ranger " . and further, that a rateable distribution, of the proceeds of the " Wild Ranger " should be made among the said plaintiffs. This petition was filed in both actions The owners of the " Coleroon " and the owners of the cargo severally pleaded by way of answer, that the owners of the " Wild Ranger '' were not entitled to a limitation of liability by the 504th section of the Merchant Shipping Act The owners of the '' Wild Ranger' then amended their petition by adding the following paragraphs :- " By section 3 of the statute, chapter 43, passed by the Congress of the United LUSH. 565. THE "WILD RANGER5' 251 States of America, in the year 1851, it was enacted as follows, to wit:-' That the liability of the owner or owners of any ship or vessel for any embezzlement, loss or destruction by the masters, officers, mariners, passengers, or any other person or persons, of any property, goods or merchandise shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the [555] amount or value of the interest of such owner or owners respectively 111 such ship or vessel and her freight then pending ' " From the year 1851 up to the present time the provisions of the said statute have been in force in the state of Massachusetts, and in the other states of the Union," The plaintiffs answered, setting out the whole of the American statute (see Statutes, Minot's edition, vol ix, p 635), and alleging that notwithstanding the said statute the defendants were liable to the plaintiffs to the full amount of the damage occasioned to the plaintiffs by the collision Upon the filing of the petition, Clarkson, on behalf of the plaintiiis, owners of cargo, moved the Court to order the defendants to give security for costs -This petition is filed in pursuance of the 13th section of the Admiralty Court Act, 1861, which enacts, " Whenever any ship or vessel, or the proceeds thereof, are under arrest of the High Court ol Admiralty, the said Court shall have the same powers as are conferred upon the High Court of Chancery in England by the ninth part of the Merchant Shipping Act, 1854 " In the Court of Chancery a declaration of limited liability can only be obtained by the shipowner filing a bill as plaintiff, and if he is a foreigner he is obliged to give security for costs Such security was in fact given in the case of Cope v. Doherty (4 K & J 367), and as a matter of course. This ib the first case of the kind in this Court; and though the form of proceedings here may not compel the defendants to institute a new suit as plaintiffs, their present petition represents a fresh proceeding solely for their own benefit, and quite distinct from the original suit of the plaintiffs The defendants have virtually become plaintiffs, and being foreigners out of the jurisdiction, ought to give security for costs. Wambey, contra.-The owners of the " Wild Ranger " have not lost the character of defendants by filing this petition. A defendant resident abroad is not required to give security for costs, even as the price of compelling the plaintiff to give such security ; Baxter v Morgan (6 Taunt 379) On the 26th of March Dr. Lushington said, In the exercise of this new jurisdiction I am anxious to tread in the steps of the Court of Chancery. I understand that in one precedent, Cope v Doherty (4 K & J 367), the party applying for a declaration of limited liability, being a foreigner out of the juris-[556]-diction, was ordered to give security for costs I shall accordingly order the present defendants to give security for the plaintiffs' costs in the sum of £100 The Court, on a subsequent day, made a similar order in the action brought by the owners of the " Coleroon " ob. the 18th of November the case came on to be argued on the mam point The following is the enactment referred to in the argument - Merchant Shipping Act, 1854 (17 & 18 Viet c 104) " Part IX. '" Liability of Shipowners " 502. The ninth part of this Act shall apply to the whole of Her Majesty s dominions " 504. No owner of any sea-going ship or share therein shall in cases where all or any of the following events occur without his actual fault or privity, (that is to say)- (4) Where any loss or damage is by reason of any such improper navigation ot such sea-going ship as aforesaid caused to any other ship or boat, or to any goods, merchandise or other things whatsoever on board any other ship or boat, 252 THE " WILD BANGER " LUSH. 557. be answerable in damages to an extent beyond the value of his ship and the freight due or to grow due in respect of such ship during the voyage which at the time of the happening of any such events as aforesaid is in prosecution or contracted for, subject to the following proviso ; (that is to say) that in no case where any such liability as aforesaid is incurred in respect of loss of life or personal injury to any passenger shall the value of any such ship and the freight thereof be taken to be less than fifteen pounds per registered ton " Cleasby, Q.C., and Wanibey for the owners of the " Wild Hanger "-We contend, first, that the defendants are within the beneficial operation of the 504th section of the Merchant Shipping Act, 1854 The previous Act of 53 Geo III, c 159, giving limited liability, was by the 5th section expressly confined to ships duly registered. But here the terms used are general, " No owner of any sea-going ship shall be answerable, &c ," and [557] there is no restrictive proviso . these general terms ought therefore to be held to apply to foreign as well as to British ships , though it must be admitted it was otherwise adjudged in Cope v Doherty (4 K. & J 367). Like general...
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