Reported by T . W . Sa u n d e r s and J. Sh o r t t, E s q rs ., Barristers-at-Law.
May 2 and 30, and July 6, 1871.
Sm it h a n d o ther s v. Br o w n a n d o t h e r s. Damage—Loss of L ife and personal in ju ry —Prohi
bition to Adm iralty Court—24 Viet. c. 10 (The Adm iralty Court Act 1861), s. 7—Jurisdiction of Adm iralty Court to 'entertain suit under I-tord Campbell9s Act (9 8f 10 Viet. c. 93).
The 24 Viet. c. 10, s. 7, enacts that “ The High Court of Adm iralty shall have jurisdiction over any claim fo r damage done by any ship 99 Held (upon demurrer to a declaration in prohibition)
per Cockburn, C. J. and Hannen, J. (Blackburn, /., dubitante), that the word “ damage 99 does not includefoss of life and personal inju ry, and that therefore the above section confers no jurisdiction upon the High Court of Admiralty, to entertain a suit under Lord Campbell9s Act (9 & 10 Viet. c. 93) fo r damages resulting from negligence in the management of a vessel which has caused personal in ju ry and death, (a)
De c l a r a t io n.
Thomas Eustace Smith, George Luckley, and James Southern, complain of Jane Brown, M ary Ann Hodgson, and (fourteen others named), the plaintiffs in a certain suit in the High Court of Admiralty of England hereinafter mentioned, which said last-mentioned persons are here
inafter called the said plaintiffs in the said s u it; for that the said Thomas Eustace Smith,George Luckley,and James Southern, were, at and before the time of the collision hereinafter mentioned, the owners of a certain steam vessel called the Black* Swan, and the said steam vessel, on the 6th Jan. then last past, came into collision on the high seas w ith a certain other screw steam vessel called the St. Bede, and by reason of the said collision the St.
Bede sank and her master and several of her crew were drowned. And the said plaintiffs in the said suit, who are respectively the wives, parents, and children of the said master of the St. Bede and of those of the crew of the St. Bede who were drowned as aforesaid in the said col
lision, and afterwards, to w it, on the 8th March then last past, by their solicitors acting for them in that behalf, instituted in the High Court of Admiralty of England a suit against the said steam vessel Black Swan, herein
after called the said suit to recover damages for the inju ry resulting to the said plaintiffs in the said suit respectively, from the death of the said master, and the death of those of the crew of the St. Bede who were drowned as aforesaid, and the praecipe to institute the said suit, which was duly filed in the registry of the said High Court of Admiralty [praecipe set out] ; and upon the institution of said suit the said T . E.
Smith, G. Luckley, and J. Southern were, in order to pre
vent the arrest of then steam vessel Black Swan, com
pelled to enter an appearance in the said suit, and were compelled to give bail in the said suit for the sum of 5000£., and they entered an appearance and gave bail accor
dingly ; and afterwards, to wit on the 23rd A p ril now last past, the said plaintiffs in the said suit filed their petition in the said suit, which said petition is as follows :—
“ In the High Court of Admiralty of England.
“ No. 5289. The Black Swan.
“ H illy e r and Fenwick, solicitors for the plaintiff, in a cause of damage instituted on behalf of Jane Brown, the widow of W illiam Brown, deceased, late master of the steamer St. Bede, of 8, Garden-street, N orth Shields, in the county of Northumberland, W illiam Brown, James Liddell Brown, John Gray Brown, and Anne H a rrie tt
(a) I t does not appear from the judgments of the judges in this case that, supposing the Admiralty Court to have jurisdiction in cases of loss of life and personal injury as above, on which point there are conflicting decisions, that there is anything in Lord Campbell’s Act itself to prevent the court from exercising such jurisdiction.
(See also the George and Richard, 24 L. T . Rep. N. S.
717; ante p. 50.)—Ed.
[ Q . B . Liddell Brown, children of the deceased, and others the^
relatives of the chief officer and crew of the said steamer St. Bede, against the Black Swan steamship, her tackle*
apparel, and furniture, and against Thomas Eustace Smith, George Luckley, and James Southern, the owners of the said Black Swan steamship, the defendants in this cause, say as follows :—First, at about 5 a m., on the 7th Jan. 1870, the screw Bteam vessel St. Bede, of 532 tons register or thereabouts, manned by a crew of nineteen hands all told, whilst on a voyage from Shields to Huelba, in Spain, with a cargo of pig iron and coke, was off Flamborough Head on the coast of Yorkshire; secondly, the wind at- such a time was about south south west, blowing half a- gale ; the weather was .dark and the tide was flood, and there was a very heavy sea ; the St. Bede was steering about south by east half east, proceeding under steam alone at the rate of about three knots an hour, with her proper regulation masthead and side lights duly exhi
bited and burning brightly ; thirdly, at such time the masthead and green lights of a steam vessel, which proved to be the above-named vessel, Black Swan, were seen at the distance of two or three miles or thereabouts from, and bearing about two points and a half on the port bow of the St. Bede ; the helm of the St. Bede was ported a litt le ; the Black Swan, with her green light open crossed on the starboard bow of the St. Bede whei>
she was seen to be porting her helm, and she shortly afterwards ran against and with her stem struck the St. Bede abaft the fore rigging, and cut her nearly in two, and caused her to founder almost immediately, and her master and all her crew, with the exception of one man named James Dunning, were drowned ; the said James Dunning, after being in the water for about an hour or upwards, was picked up by a smack and saved ; fourthly, shortly before the said collision the helm of the St. Bede was starboarded by mistake of the man at the wheel, bub immediately afterwards, and just before the said collision, her helm was ported; fifthly, the Black Swan, made default in not keeping out of the way of the St. Bede as she ought to have done; sixthly, the Black Swan ported her helm at an improper time ; seventhly, the Black Swan, which was under both steam and sail, and was proceeding at a rapid speed, did not comply with the provisions of art. 16 of the regulations for preventing collisions at sea; eighthly, the said colli
sion, and the loss of the lives of the master and others of the crew of the St. Bede, were occasioned by all or some or any one of the matters set forth in articles 5, 6, and 7 of this petition ; ninthly, the said collision was not in any way occasioned by any negligent or improper naviga
tion on the part of the St. Bede; tenthly, the plaintiffs respectively are the wives, parents, and children of the master and those of the crew of the St. Bede, who were drowned as aforesaid, as defined by the statute 9 & 1G Yict. c. 93. There is not any executor or administrator of the said master or of any of the said crew. And the said Hillyer and Fenwick pray the right honourable the judge to pronounce for the damage proceeded for, and to con
demn the defendants and their bail therein and in costs, and to refer it to the registrar, assisted by merchants, to ascertain the amount of such damage, and that further and otherwise right and justice may be administered to the plaintiffs in the premises. And together with the said petition, particulars were filed [particulars here set out of the persons for whom and on whose behalf the suit was instituted, and of the nature of the claim.] And Ehortly after the filing of the said petition and parti
culars, the said T . E . Smith, George Luckley, and James Southern, by their counsel, prayed the Right Honourable Sir Robert Joseph Phillimore, knight Doctor of Civil Laws, Lieutenant Judge and Presi
dent of the said High Court of Admiralty, to reject the said petition, because the cognizance of the same appertained not to the said High Court of Admi
ralty of England. Yet the said lieutenant judge, and president of the said court not weighing the laws of this realm of England, to the great contempt of our Lady the Queen, and to the manifest injury of the said T . E . Smith, G. Luckley, and J. Southern, refused to reject the said petition, and ordered the said T . E. Smith, G. Luck
ley, and J. Southern to answer to the same. And the said T. E . Smith, G. Luckley, and J. Southern further say that the said plaintiffs in the said suit were not, nor was aDy or one of them on board the said steam vessel St. Bede at the time of the said collision, and that the said plaintiffs in the said suit had not, nor had any one Sm i t h a n d o t h e r s v. Br o w n a n d o t h e r s.
M A E IT IM E LA W CASES. 57
Sm it h a n d othersv. Bro w n a n d o t h e r s. [Q.B.
Q.B.]
of them, any share or interest in the said steam vessel St.
Bede, or in any goods or chattels laden on board thereof or belonging thereto, and that the said plaintiffs in the said suit have not nor has any one of them sustained any loss, damage, or injury, by reason of any act, neglect, or default of the said T. E. Smith, G. Luckley, and J.
Southern, or any or either of them, or any of the servants of them, or any or either of them other than the injury resulting to the said plaintiffs in the said suit respectively from the death of the said master, and from the death of those of the said crew, who were drowned as aforesaid.
And, further, that no proceedings have been instituted or entertained in the said High Court of Admiralty at the suit of the said T. E. Smith, G. Luckley, and J. Southern or any of them, or at the suit of any owner of the said steam vessel Blade Swan, for the purpose of determining the amount of the liability incurred by the owner or owners of the said steam vessel Blade Swan in respect of loss of life, personal injury, or loss of or damage to ships’
boats or goods, or for the distribution of such amount, and the said T. E . Smith, G. Luckley, and J. Southern further say that according to the law of this kingdom of England the cognizance of the said suit belongeth not to fhe said High Court of Admiralty, and that the said High Court of Admiralty hath not power or authority to entertain the prayer of the said plaintiffs in the said suit, or to refer i t to the registrar of the said court, assisted by merchants, to ascertain the amount of the damage claimed by the said plaintiffs in the said suit, nor had the registrar of the said court, assisted by mer
chants, power to ascertain the amount of such damage.
Tet the said plaintiffs in the said suit have not ceased prosecute the said suit in the said High Court of Admiralty, and still do prosecute the same there, to the great oppression of the said T . E. Smith, G. Luckley,
^nd J. Southern. Wherefore the said T . E. Smith, G.
Luckley, and J. Southern humbly imploring the assist
ance and munificence of this court, pray remedy by writ our said Lady the Queen of prohibition to the said lieutenant, judge, and president of the said High Court of Admiralty in form of law to be directed to prohibit biui that he may not further hold plea before him in any
^ise touching the premises aforesaid.”
Demurrer, th at the declaration was bad in sub
stance, wherefore the defendants prayed that the said w rit of prohibition to the said Lieutenant, Judge, and President of the H igh Court of A d m iralty of England m ight nob issue as in the said declaration is prayed.
. A ground of demurrer was that the facts stated m the declaration did nob show that the H igh Lourt of Adm iralty might not have cognizance of khe said suit of the defendants therein.
Joinder in demurrer.
9 & 10 Viet. c. 93, enacts :
°y wrongful act, neglect, or default, and the act, neglect
?r default is such as would (if death had not ensued) av© entitled the party injured to maintain an action and
©cover damages in respect thereof, then, and in every Uch case, the person who would have been liable if
©ath bad not ensued shall be liable to an action for im a g e s , notwithstanding the death of the person injured,
?d although the death shall have been caused under such ttcumstances as amount in law to felony.
Sect. 2 :
That every such action shall be for the benefit of the husband, parent, and child of the person whose _ atP ©hall have been so caused, and shall be brought by Pe m name the executor or administrator of the
^ tson deceased; and in every such action the jury may j* T© such damages as they may think proportioned to the Jury resulting from such death to the parties respec- he ^0r whom and for whose benefit such action shall in kyought; and the amount so recovered, after deduct- di^'ri C08f s not recovered from the defendant, shall be si Vlue<l amongst the before-mentioned parties, in such ates as the jury by their verdict shall find and direct.
s ^ Viet. c. 10 (The Adm iralty Court A ct 1861), ov?16 High Court of Admiralty shall have jurisdiction
r a uy claim for damage done by any ship.
Sect. 22 :
Any new w rit or other process neoessary 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.
Sect. 35 :
The jurisdiction conferred by this Act on the High Court'of Admiralty may be exercised either by proceed
ings in rem or by proceedings in personam.
Butt, Q.C. (with him Clarkson).—First, there are circumstances under which the Court of A d
m iralty has to do what it now assumes to do, viz., assess damages. By sect. 514 of the Merchant Shipping Act 1854 (17 & 18 Viet. c. 104), the lia b ility of the shipowner in oases of collision, and perhaps other cases, was limited to the value of the ship and freight earned. That section was, however, repealed by the Amendment Act, 1862, and a provision (sect. 54) substituted, lim iting the liability to an assumed value of the ship and freight of 81. a ton, where there is damage to ships and goods without loss of life, and to 151, per ton where both kinds of injury happen. And by sec. 514 the High Court of Chancery is em
powered to entertain proceedings at the suit of any owner for the purpose of determining the amount of the liab ility where several claims are made or apprehended. Then sect. 13 of the Adm iralty Court Act 1861 (24 Viet. c. 10), enacts that “ whenever any ship or vessel, or the proceeds thereof, are under arrest of the High Court of Adm iralty, 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 H ill v. Andus (1 K. & J. 263), Wood, V. C. re
fused to entertain a suit of this kind unless the plaintiff admitted liability. But in The Amalia (8 L. T. Rep. N. 3. 805; 1 Moo. P. C„ N. S., 471), i t was held that it is not neoessary that owners of a vessel and cargo preferring their claim in the Court of Adm iralty to limited liability should acknow
ledge in the first instance that their vessel was to blame. [ Co c k b u r n, C. J.—Here there are a dozen claimants ; each person’s loss may vary, yet each person’s pecuniary loss must be ascertained. Then the value of the ship being settled the amount to which each individual is entitled pro rata on the value of the ship must also be fixed. Moreover, the age of the deceased persons, their position in life, and all the various matters of inquiry in an action under Lord Campbell’s A ct have to be ascertained. But what machinery has the Adm i
ralty Court by which it can do all this P] No doubt it is peculiarly the function of a ju ry to make such an investigation, unless jurisdiction is expressly given to the Court of Adm iralty by the Legislature. That jurisdiction has been so given.
The Court of Adm iralty has similar functions to perform in other cases. The first proceeding is to stay all actions. Co c k b u r n, 0. J.— Suppose twelve actions brought here, could the defendant go to the Adm iralty and ask that the plaintiffs might all be enjoined not to go on ?] Sect 13 of the Adm i
ralty Court Act 1861 provides that whenever any ship or vessel, or the proceeds thereof, are under arrest of the H igh Court of Admiralty, the said court shall have the same powers as are conferred upon the H igh Court of Chancery in England by the 9th part of the Merchant Shipping A ct 1854. [Co c k b u r n, C. J.—That is where the ship is arrested, but, assume that there was no arrest,
58 M A R IT IM E LA W CASES.
Q.B.] Sm it h a n d o t he r sv. Br o w n a n d o t her s.
■could these widows be enjoined from proceeding?]
N ot in the Court of Adm iralty, but by the Court of Chancery they would be. Matters of this kind, where there is limited liability, cannot be deter
mined without some such powers as the Adm iralty Court possesses. I f these numerous widows had come into the Court of Queen’s Bench how could their claims be adjusted? [ Co c k b u r n, C. J .—
Judgment would go for the amount recovered.]
Then the first judgment obtained m ight exhaust the value of the ship and leave the subsequent ones unsatisfied. [ Bl a c k b u r n, J.—I should have thought that the rig h t course would have been to stay the actions proceeding to execution, but allow the plaintiffs to go on until then.] We rely on sect. 7 of the Adm iralty Court Act, 1861, which gives theHighCourtof Adm iralty jurisdiction over any claim for any damage done by any ship ; and on sect. 35 which enacts that the jurisdiction conferred may be exercised either by proceedings in rent or in ’personam. Questions have arisen as to whether the Court of Adm iralty can entertain a suit of damage by a seaman for injuries he has sustained. There are two cases upon that subject, first, The Sylph (17 L. T. Rep. N. S. 519 ; L. Rep.
2 Adm. 24). There a diver who while engaged in diving in the Mersey, was caught by the paddle wheel of a steamer, instituted a cause of damage against the ship. Held, that the Court had
2 Adm. 24). There a diver who while engaged in diving in the Mersey, was caught by the paddle wheel of a steamer, instituted a cause of damage against the ship. Held, that the Court had