Ad m.] Th e Ho l a b. [ Ad m.
by virtue of the 6th section of 41 Geo. 3, c. lxxxvi. [H is Lordship read i t."1 There are two m atters to state in connection w ith th a t section. The firs t is th a t the Vadso was a foreign ship—she was a Norwegian steamship—
and the second is th a t it has been proved th a t the p ort of B lyth , in which this accident happened, was a t the tim e of th is collision “ one o f the creeks or members o f the p ort of Newcastle,” w ith in the meaning o f the section to which I have referred.
The p la in tiffs, on the other hand, assert th a t pilotage is no longer compulsory in the p ort of B ly th , by reason o f a change in the regulations affecting the port, which they contend has had the effect of abolishing compulsory pilotage in th a t port. The question, I th in k, would perhaps have been more accurately disposed of by me i f I were to reserve my judgm ent and express i t more closely and clearly, b ut a t the same tim e I have formed a definite view about the point, and I do not th in k I should serve any useful purpose by considering the m atter fu rth e r. I propose to deal w ith i t a t once. The point made by the defendants may be shortly stated to be this, th a t there was o rig in a lly by the A c t of 1801 com
pulsory pilotage established over the Tyne and various creeks or members belonging to the p ort of Newcastle, and th a t nothing has since taken place to repeal or vary the section to which I have referred, so fa r as compulsory pilotage in B ly th is concerned, since the A ct was passed. The case fo r the p la in tiffs seems to be this, th a t what has since taken place is sufficient to repeal the section in question, so fa r as i t relates to compul
sory pilotage, and th a t now, therefore, pilotage is no longer compulsory. The point which is made on the p a rt of the p la in tiffs is th a t by virtue of sect. 333 of the M erchant Shipping A ct 1854, repeated by another section in the A c t of 1894, there has been a new code relating to p ilo t
age established which has the effect of repealing sect. 6 and m aking pilotage no longer compul
sory. There appears to be no doubt about this, th a t o rig in a lly the p ort of B ly th formed part of the port o f Newcastle so fa r as th is m atter of pilotage
’ was concerned, and th a t from tim e to tim e in late years the A c t of 1801 and the ju risd ictio n of the T rin ity House at Neweastle-on-Tyne has been affected by taking out o f th a t A ct various ports, among others Newcastle itse lf, and constituting fresh authorities fo r the purpose of dealing w ith pilotage w ith in the various ports. B u t th a t has not been done w ith regard to B lyth . B ly th remains as i t was under the A ct of 1801, unless i t has been affected in the way the p la in tiffs contend by the bye-laws made in 1883, pursuant to the 333rd section of the M erchant Shipping A ct. There is another section which has been considered—namely, sect. 332, which gives power to pilotage authorities to make and extend exemptions from compulsory pilotage. I t is to be noticed th a t the 333rd section, under which the bye-laws of 1833 were made, does not deal w ith the question o f compulsory pilotage at a ll, but deals, among other things, w ith the power to a lter and reduce the rates o f pilotage.
1 th in k i t is clear, when those bye-laws are con
sidered, th a t there is nothing whatever in them which purports to deal w ith the rights conferred under sect. 332, although there is to a certain extent a change in the rates, fo r whereas under the A c t of 1801 there was a difference between
Von. IX ., N. S.
the rates on B ritis h and foreign ships, a ll are put upon the same footing by the bye-laws of 1883.
Taking the m atter, therefore, as it stands as affecting the p ort o f B ly th , there is nothing but the A ct of 1801 and these bye-laws, and I can find nothing in these bye-laws which in any way modifies the obligation to employ a p ilo t imposed upon a foreign vessel by the A ct o f 1801.
B u t M r. Laing, fo r the p la in tiffs, says th a t i f the case is decided upon the same lines as the case of The Johannes S ve rd ru p (u b i sup.), i t follows th a t compulsory pilotage has been abolished so fa r as the port of B ly th is concerned. Now, the case of The Johannes S verd rup (u b i sup.) was a case of a vessel in the p ort o f Newcastle, and th a t p o rt—or, to use precise terms, the Tyne—has been taken out o f the operation of the A ct of 1801 by reason o f a provisional order embodied in an A ct of P arlia
ment o f 1865, which contains a complete code of regulations respecting pilotage in the rive r Tyne.
T hat provisional order was made by virtue of sect. 39 of 25 & 26 Y ic t. c. 63, which enabled the Board of Trade, by provisional order, to, amongst other things, transfer pilotage ju risd ictio n and constitute new pilotage authorities, and to exempt from compulsory pilotage in any d is tric t, and so on. In 1865 there is to be found an A ct of Par
liam ent giving effect to a provisional order affect
ing the Tyne, which constitutes a body of com
missioners fo r the Tyne, defines the pilotage d istrict, transfers to the commissioners the ju ris diction vested in the T rin ity House of Newcastle- on-Tyne, and provides fo r pilotage dues, and under sect. 16 provides th a t “ N othing in th is order shall extend to oblige the master or owner o f any vessel to employ . . . a p ilo t i f he is not desirous so to do.” I t was held in the case of The Johannes S ve rd ru p (u b i sup.) th a t th a t pro
visional order contained a complete code of regu
lations respecting pilotage in the rive r Tyne, and th a t its provisions superseded those o f 41 Geo. 3, c. lx x x v i.; and that, therefore, under sect. 16 of the schedule pilotage was n ot compulsory in the case of either B ritis h or foreign vessels in the Tyne.
I t seems to me th a t th a t case has no application to the m atter before me, because i t is dealing w ith the effect of an A ct o f Parliam ent confirm ing a provisional order, and is concerned solely w ith the effect and result of th a t provisional order and the A ct confirm ing it. The present case appears to me to be entirely and to ta lly different, because there is no provisional order, and no A ct of Parliam ent varying the effect of the A ct of 1801.
There is only a set o f bye-laws made by the pilotage a uth ority s till existing as fa r as the port o f B ly th is concerned—the T rin ity House of New- castle-on-Tyne; and those bye-laws are made, and really only made, by reason of sect. 333 of the M erchant Shipping A ct of 1854, now continued by the later A c t of 1894. The only other points which I th in k i t necessary to refer to are these:
I t is said th a t by the terms o f the bye-laws of 1883 themselves there has been an abolition of compulsory pilofage, and M r. Laing relied upon the la tte r p art of the 13th clause, which says th a t
“ the pilotage dues shall be paid to the sub- commissioners or to the p ilo t perform ing such pilotage w ith in five days after the performance thereof.” He argued th a t as the pilotage dues are only to be paid to the sub-commissioners
“ a fte r ” the p ilo t has performed the pilotage duties they cannot possibly be paid where the
U
Th e Ru b y. [ Ad m. Ad m.]
p ilo t has not performed the duty, and th a t th a t im plies th a t the dues cannot be com pulsorily imposed. The language is nothing more than a repetition of what is to be found in the la tte r p a rt o f sect. 7 of the A ct of 1801, and i t is impos
sible to construe th a t section as taking away the compulsion imposed by sect. 6, merely because it speaks of the pilotage dues being paid w ith in five days after the pilotage duties have been per
formed. Moreover i t appears to me on the evidence which has been given th a t there is nothing to show th a t there has been any custom or usage w ith regard to the m atter. I t has been said th a t there are cases in which foreign ships have not been asked to pay after coming in or going out of port. T hat does not, to my mind, affect the legal question whether i t is compulsory in law or not, and the conclusion to which I have come on the reading of these Acts of Parliam ent, and the orders and bye-laws, is th a t there is nothing to be found which in ar y way abolishes the compulsion imposed by sect, 6 of the A ct of 1801, though there is a reduction of the rates in accordance w ith the powers conferred by the M erchant Shipping Acts. F or these reasons 1 m ust hold th a t the pilotage in th is case was com
pulsory by law, and th a t the defendants are exonerated from responsibility.
Judgm ent f o r the defendants.
Solicitors fo r the p la in tiffs, Ince, Colt, and Ince agents fo r W. C h arlto n, B lyth .
Solicitors fo r the defendants, Stokes and Stokes.
M onday, Nov. 5, 1900.
(Before Ba r n e s, J.) Th e Ru b y, (a)
M ortgage— A c t o f ba nkru ptcy before mortgage— M e rc h a n t S h ip p in g A c t 1894, s. 36—B a n k ru p tc y A c t 1883, ss. 43, 44, 49.
W here a mortgage is granted on a ship a fte r the m ortgagor has com m itted an act o f bankruptcy, in respect o f w hich he is subsequently a d ju d i
cated a b a n k ru p t, the m ortgage is protected by sect. 49 o f the B a n k ru p tc y A c t i f the mortgagee had no notice o f the act o f ba nkru ptcy a t the date o f the m ortgage, n o tw ith s ta n d in g the fa c t th a t the ship rem ains in the possession o f the m ortgagor u p to the date o f the receiving order.
Lyon v. W eldon (1824) 2 B in g . 334) follow ed.
Th is was a motion on behalf of a mortgagee of a B ritis h ship fo r an order th a t he was entitled to have paid out of court to him the sum of 221/, 17s. 8c/., being the proceeds of the sale of the steamship R uby.
The case is reported on other grounds in 78 L . T. Rep. 235 and 267; 8 Asp. M ar. Law Cas.
389 and 421; (1898) P. 52 and 59.
On the 1st Sept. 1897 the owner o f the steam
ship R u by mortgaged her to the p la in tiff, and on the 2nd Sept, the mortgage was duly registered.
S hortly afterwards an action in rem was com
menced in the Bow County C ourt against the owner of the R u b y by the owners of a s k iff fo r damage by a collision, and on the 3rd Sept, the p la in tiffs obtained judgm ent fo r 21/. 17s. 10d.
debt and costs. ___ ____________
(a) Reported by Bu t l e r As p in a l l, Esq., Q.C., and Sutton Tim m is, Esq., Barrister-at-Law.
The owner of the R uby having made default in payment a w arrant of execution was issued, and the vessel was seized by the high b a iliff o f the Bow County Court.
The vessel was duly appraised and sold fo r 380/. on the 28th Oct., but the reg istra r of shipping at Newhaven refused to register the b ill o f sale except subject to the p la in tiff’s o ut
standing mortgage.
On the 23rd Nov. a receiving order was made against the mortgagor, the o rigin al owner, and the mortgagee exercised his power o f sale under the mortgage.
The mortgagee having intervened in the collision action, in Jan. 1898 proceedings were taken before the President (S ir F. Jeune) (78 L . T. Rep. 267 ; 8 Asp. Mar. Law Cas. 389; (1898) P. 52), wbo u lti
mately set aside the sale by the mortgagee, upheld the sale by the b a iliff, and ordered the proceeds to be brought into the H igh Court.
The mortgagee pow claimed the balance of the fund in court as against the trustee in bankruptcy of the mortgagor. The act of bankruptcy on which the receiving order was made was com
m itted on the 7th J uly, and it was proved th a t at the date of the mortgage the mortgagee had no notice of any act of bankruptcy comm itted by the owner of the R uby.
B y sect. 36 of the M erchant Shipping A ct 1894 (57 & 58 Y ic t. c. 60) :
A re gistere d m o rtg a g e o f a Bhip o r share sh a ll n o t be affected b y an y a c t o f b a n k ru p tc y c o m m itte d by th e m o rtg a g o r a fte r th e date o f th e re co rd o f th e m ortgage, n o tw ith s ta n d in g th a t th e m o rtg a g o r a t th e commence
m e n t o f h is b a n k ru p tc y h a d th e ship o r share in h is possession, ord e r, o r d is p o s itio n , o r was re p u te d ow ner th e re o f, and th e m o rtga ge s h a ll be p re fe rre d to any rig h t, cla im , o r in te re s t th e re in o f th e o th e r c re d ito rs o f th e b a n k ru p t o r a n y tru s te e o r assignee on th e ir b e half.
By sect. 43 of the Bankruptcy A ct 1883 (46 &
47 V ie t. c. 52):
T he b a n k ru p tc y o f a d e btor, w h e ther th e same take s place on th e d e b to r’ s ow n p e titio n o r upon th a t o f a c re d ito r o r c re d ito rs , s h a ll be deemed to have re la tio n b a ck to , and to commence a t, th e tim e o f th e a c t o f b a n k ru p tc y being c o m m itte d on w h ic h a re c e iv in g o rd e r is made a g a in st h im , or, i f th e b a n k ru p t is p ro ve d to have co m m itte d m ore acts o f b a n k ru p tc y th a n one, to have re la tio n back to , and to commence a t, th e tim e o f th e fir s t o f th e acts o f b a n k ru p tc y p roved to have been c o m m itte d b y th e b a n k r u p t w ith in th re e m o nths n e x t preceding th e date o f th e pre se n ta tio n o f th e b a n k ru p tc y p e t it io n ; b u t no b a n k ru p tc y p e titio n , re ce ivin g ord e r, o r a d ju d ic a tio n s h a ll be re ndered in v a lid b y reason o f a n y a c t o f b a n k ru p tc y a n te rio r to th e de b t o f th e p e titio n in g c re d ito r.
Sect. 44. T h e p ro p e rty o f th e b a n k ru p t d iv is ib le am ongst h is c re d ito rs . . . sh a ll com prise the fo llo w in g p a rtic u la rs : (i.) A l l such p ro p e rty as m ay belong to o r be vested in the b a n k ru p t a t th e com mence
m e n t of th e b a n k ru p tc y , o r m ay be acq uired by or devolve on h im before h is discharge, ( iii.) A l l goods being, a t th e com m encem ent o f th e b a n k ru p tc y , in th e possession, order, o r d isp o sitio n o f th e b a n k ru p t in his tra d e o r business, b y th e consent and pe rm ission o f the tru e ow ner, u n der such circum stances th a t he is the re p u te d ow ner th e re o f : P ro v id e d th a t th in g s in a ctio n o th e r th a n de bts due o r g ro w in g due to th e b a n k ru p t in th e course o f hie tra d e o r business s h a ll n o t be deemed goods w ith in th e m eaning o f th is section.
Sect. 49. S ubject to th e fo re g o in g p ro visio n s o f th is A c t w ith respeot to th e effect o f b a n k ru p tc y on an execution o r a tta c h m e n t, and w ith respect to th e avo id
-M A R IT I-M E
LAW CASES.
1 4 7Ad m.] Th e Sa n t ia g o. [ Ad m.
ance o f o e rta in settle m en ts and preferences, n o th in g in th is A c t Bhall in v a lid a te , in th e case o f a b a n k ru p tc y (c) A n y conveyance o r assignm ent b y th e b a n k ru p t fo r va lu a b le con sid era tion : P ro vid e d th a t b o th th e fo llo w in g c o n d itio n s are com plied w ith — nam ely (1) th e p a y m e n t, d e liv e ry , conveyance, assignm ent, c o n tra c t, d ealing, o r tra n s a c tio n , as th e case m ay be, ta ke s place before th e date o f the re c e iv in g o rd e r ; and (2) th e person (o th e r th a n th e de btor) to , b y , o r w ith w hom th e p a y m e nt, d e liv e ry , conveyance, assignm ent, c o n tra c t, deal
in g , o r tra n s a c tio n was made, executed, o r entered in to , has n o t a t th e tim e o f the pa ym e n t, d e liv e ry , convey
ance, assignm ent, c o n tra c t, dealing, o r tra n s a c tio n , n o tice o f any a v a ila b le a c t o f b a n k ru p tc y c o m m itte d b y th e b a n k ru p t before th a t tim e .
L a in g , Q.O. fo r the mortgagee.—Sect. 49 is relied upon. This is not a case w ith in sect. 44 (iii.) because at the commencement of the bank
ruptcy—viz., on the 7th J u ly 1897—the bank
ru p t was not the apparent owner o f the ship, b ut the real owner. Further, he could not he in possession of the ship w ith the consent of the mortgagee at the commencement of the bankruptcy since the mortgagee’s title did not accrue u n til some tim e afterwards. Com
mencement of the bankruptcy means the date on which the act of bankruptcy was com m itted :
Lyon v. Weldon(1824) 2 B in g . 334.
Sect. 36 o f the M erchant Shipping A ct 1894 has reference only to acts of bankruptcy committed after the date of the mortgage, and refers only to properly registered mortgages. The efEect of the section is to take registered mortgages out o f sub
sect. (iii.) o f sect. 44 of the B ankruptcy A ct 1883.
M u i r M ackenzie (H e rbert Reed, Q.C. w ith him ) fo r the trustee in bankruptcy.—The title of the trustee relates back to the act o f bankruptcy, and the case does not come w ith in sect. 36 of the M erchant Shipping A c t 1894. Sect. 36 only pro
tects a mortgagee where the act was comm itted a fte r the mortgage, and not, as in the present case, before i t was committed. The mortgagee, however, claims the protection of sect. 49 o f the Bankruptcy A c t 1883, and, th a t being so, i f the case of L y o n v. Weldon (u b i sup.) is good law, the case of the trustee cannot be supported. That case has never been overruled, but has been subject to some criticism in W illiam s, L .J .’s book on Bankruptcy, 7th edit., p. 211.
Ba r n e s, J .—I f you cannot distinguish th is case from the decision in L y o n v. Weldon (u b i sup.) I am bound to follow th a t authority. I th in k the money must be paid out to the m ort
gagee, and th a t there should be no costs—each p arty must bear th e ir own costs.
Solicitors fo r the mortgagee, J. A . and I I . E.
F a n fie ld .
Solicitors fo r the trustee in bankruptcy, T rin d e r and Capron.
Nov. 5 and6, 1900.
(Before Ba r n e s, J. and Tr i n i t y Ma s t e r s.) Th e Sa n t ia g o, (a)
Salvage—P ilo t— Services beyond o rd in a ry scope o f employment — M erchant S h ip p in g A c t 1894, s. 593.
Where a p ilo t in charge o f a ship engaged i n s alving another perform ed services w hich could not reasonably be considered to come w ith in the scope o f h is contract as p ilo t, he was held e n title d to receive salvage fro y n the owners o f the salved vessel.
Akerblom v. Price (44 L . T. Rep. 837 ; 4 Asp.
M a r. L a w Cas. 441; 7 Q. B . D iv . 129) follow e d.
Th is was an action o rig in a lly bi’ought by the owners, master, and crew of the steamship P o rtia fo r salvage services rendered to the steamship S antiago, her cargo and freig ht, in the N orth Sea on the 19th Oct. 1900.
The P o r tia was a steamship of 484 tons net and 773 tons gross register, and was on a voyage from Ham burg to London w ith a fu ll general cargo, manned by a crew of seventeen hands a ll told, and carrying th irty-n in e passengers.
About 7 a.m. on the 19th Oct., when about thirteen miles S.E. of Southwold ligh tship , she fe ll in w ith the S antiago, which was a t anchor w ith her engines broken down.
The S an tiag o was a Spanish steamship of 2138 gross and 1360 tons net, and at the tim e was on a voyage from Bilbao to Newcastle-on Tyne w ith a cargo o f ore, manned by a crew of th irty -s ix hands.
The agreed value of the ship was 13,0001, of her cargo 70001, and of her fre ig h t 250Z.
The weather a t the tim e was a strong E .N .E . wind w ith a heavy sea, and the hawsers were w ith some d ifficu lty made fast. Towing proceeded w ithout event, and when inside the Shipwash the P o r tia was boarded by a p ilo t, Jonas H arrington.
In coming up the East Swin the p la in tiffs ’
In coming up the East Swin the p la in tiffs ’