Ad m.]
session fees charged by the high bailiff in respect 1 of the County Court arrest mill not be allowed by the High Court upon taxation of plaintiff’s costs.
Th is was an ob je ction to th e re g is tra r’s ta x a tio n o f costs in a cause o f necessaries, in s titu te d against th e ship Bio Lima.
The cause was originally instituted in the County Court of Northumberland, under the County Courts Adm iralty Jurisdiction Act 1868, sect. 3, and a warrant of arrest was issued out of that court. Previous to the institution of this cause, two other causes, one of mortgage and the other of possession, had been instituted in the High Court of Adm iralty, and in these two causes the ship was arrested by the deputy of the marshal of the High Court, on the 10th March 1873. On the same day, but at a later hour, the ship was also arrested by the high bailiff of the County Court in the cause of necessaries. A t the time of this arrest, the warrant of the H igh Court was affixed to the mast of the ship, and the marshal’s deputy gave notice to the man in possession, on behalf of the high bailiff, that the ship was already under the arrest of the H igh Court. The high bailiff, however, remained in possession u ntil the 22nd A p ril 1873. On the 21st A p ril 1873, an ap
plication was made by the plaintiffs to the High Court to transfer the cause of necessaries from the County Court to the High Court, and in support of the application an affidavit, made by the plain
t if f ’s solicitor, was filed, stating that at the time of the institution of the suit other suits had already been instituted in the High Court, and that the H igh Court had in those suits arrested the ship.
On this application, the cause of necessaries was transferred to the High Court, and according to the practice of the H igh Court, was again there instituted hy prcecipe. On the 22ud A p ril the ship was released by the high bailiff of the County Court, and the plaintiffs filed in the registry of the H igh Court a caveat against the release of the ship, which continued under arrest in the other suits above mentioned. Appearances were duly entered in this suit for certain owners of the ship.
On the 29th A p ril the plaintiffs applied to the court to order the arrest of the ship in the cause of necessaries; but this the judge refused to do, holding that a caveat was sufficient so long as the arrests in the other suits held good; (see The Bio Lima, 28 L T. Rep. N. S. 775; ante, p.
34) On the 3rd May the plaintiffs withdrew the caveat against the release, the cause on neces
saries having been settled for an agreed sum and taxed costs. The plaintiffs’ costs were accord
ingly taxed, by the registrar, and in the b ill of costs, among the outport charges, there appeared an item, “ Paid high bailiff’s bill for arrest, pos
session, and maintenance, 16i. 13s. 6A.” This charge covered the period from the arrest of the ship on the 10th March to the release on the 22nd A p ril. This was disallowed by the registrar, on the ground that at the time the warrant was served the ship was already under the arrest of and in possession of the H igh Court, and that, it being the practice of the marshal only to charge one set of possession fees, some arrangement pro
ducing the same result ought to have been made.
The defendants had in the firs t instance ob
jected to the double possession, and the following letter was written to the high bailiff of the Northumberland County Court by the defendants’
solicitor :—
6, Copthall-court, London, E.C.
March 20, 1873.
Rio Lima.
Sir,—I am informed by the marshal of the Court of admiralty that a person has been put on board this steamer at the instance of a suitor in your County Court.
The vessel is under arrest in three suits instituted in the Admiralty Court, and the expense incurred in keeping the man above referred to on board w ill not be allowed as an item in the account sales upon the sale of this vessel. I will undertake that before the vessel is re
leased due notice shall be given to yon, so that if it is considered advisable so to do, possession may be taken by the plaintiffs in your cou rt; but if, notwithstanding this, the man is continued on board, the additional ex
pense occasioned by his remaining there will have to be borne by those who instruct him.—Yours truly,
T o the H ig h B a iliff. Ro w l a n d Mi l l e r.
The plaintiffs’ solicitors replied as follows :—
Newcastle-on-Tyne, March 21, 1873.
Rio Lima.
Dear Sir,—Your letter to the high bailiff of the County Court of Newcastle has been handed to us, as the plain
tiffs’ solicitors in the County Court. W e find there are five arrestments against the ship and cargo, of which ours is only the third, and under such circumstances _we cannot accede to your request and withdraw possession.
—Yours truly, In g l b d e w & Da g g e t t. Rowland M iller, Esq.
To this taxation the plaintiffs objected, and gave notice of motion to review.
Phillimore, for the plaintiffs, in support of the motion.—The County Court was bound to arrest and to hold. Having no knowledge that there were suits already instituted in the High Court, the plaintiffs were bound to institute in the County Court, on account of the amount of our claim. We were entitled to institute a cause in rem., under the County Courts Adm iralty Jurisdiction A ct 1869 (32 & 33 Viet. o. 51), and without doing so we had no means of preserving our lien for necessaries.
The object of the arrest is for the purpose of keep
ing the property within the jurisdiction of the co urt: (see Williams and Bruco A dm iralty Prac
tice, supp., p. 26, rule 15.) This shows that the arrest must be continued. The arrest is not for the purpose of ousting the marshal, but in order to hold concurrently. I f the marshal found the sheriff in possession of a ship, he would not w ith
draw, but would also enter into possession. Where there are several claims against a ship, those en
titled to priority of decree are entitled to priority of payment out of the proceeds; hence, if the ship were released, no decree could he got against her, and the plaintiff would allow the other creditors to take priority. Moreover, the bailiff was entitled to hold the ship u ntil the payment of his own fees :
The North American, Swab. 466; _
County Court Admiralty Jurisdiction R ules; Rule 20, Williams & Bruce Adm. & Pr. supp., p. 27.
We could not have compelled the bailiff to w ith draw without payment of his fees , nor was he entitled to do so without a formal release, which only takes place on abandonment of suit, or on a decree of the court against the plaintiff. In either case the bailiff would have his fees; but we could not be expected to abandon, having a good claim.
The Rules do not seem to have contemplated that the ship m ight be under the arrest of several person« at one time in different courts, but the plaintiffs ought not to suffer for that. The fee3 have been paid to the bailiff, and i f we had not transferred to this court, the bailiff would have been paid everything by the County Court.
Clarkson, for the defendants, contra.—The ship ought not to be in the possession of two persons
M A R IT IM E LA W CASES.
145Ad m.] The River. We a k Commissioners v. Adamson and others. at one time. The plaintiffs were not bound to go
to the County Court. I t has often been held that when a ship is under arrest in the H igh Coart, any person having a cause of action, however small, may sue in that court— in fact, ought to sue here to prevent confusion. Suppose this court ordered the ship to be brought round to London in charge of the marshal, would he have to bring the high bailiff of the County Court with him out of jurisdiction of the County Court? This clearly shows that there can only be one valid possession, and that the arrest of this court supersedes that of the County Court. The plaintiffs must have known that the ship was under arrest by the marshal, and ought at once to have transferred the causo here. The taxation is a matter in the discre
tion of the registrar, and this discretion has for the above reasons been rig h tly exercised.
Phillimore, in reply.—The ship was arrested on both suits on the same day, and we had no means of knowing of her previous arrest t i l l we took possession. We are at least entitled to possession fees for one day. Cur. adv. vult.
Nov. 19.—Sir R . Ph il l im o r e.—This is an ob
jection to the disallowance of one item in the tax
ation of the plaintiffs’ cost by the registrar. That item consists of the high bailiff's charges for possession of the vessel Bio Lima during forty- tour days, from March 10th to A p ril 22 nd, under a warrant issued from the County Court of N orth
umberland ; the amount disallowed is 16f. 13s. 6d.
A t the time this warrant was served the Bio Lima was already under arrest under two warrants from this court, and in possession of the marshal’s deputy. Both these warrants had been served at an earlier hour on the same day (the 10th of March in this year) on which the County Court warrant was served. These warrants had been issued on the 7th and 8th March; the return showed that they were served in the usual manner by affixing the warrant, and afterwards the copy to the mast of the vessel. The vessel was subsequently arrested by warrants from this court in three other Buits, namely, in a cause of possession on the 18th of March, of master's wages on the 21st of March, of co-ownership on the 29th of May. For holding possession of the vessel in all these five causes, the marshal has charged only one set of possession fees,
I am by no means prepared to say that, if fhe County Court arrest had been first in order of date, the subsequent arrest by the Superior Lourt would not have dispossessed the officer of the inferior court. But here the question is, whether it was necessary or justifiable that whilst the ship was thus in the custody of the Superior Court, a second person should have been placed, Under the County Court warrant, in possession of the ship. The practice of this court with respect to cases in which proceedings have been taken in this court and in the County Court has been fstablished for some time. In such cases I have '^variably exercised the power given me under he statutes of transferring all the proceedings to his court, thereby,I believe,saving much expense und delay to the suitors. The plaintiff ought to ave been, and must have been aware of this Practice ; and they applied on the 21st A p ril to ,, 18 court for an order to remove the suit from 6 County Court into this court. The order was granted. This course should have been taken in
he first instance.
Vol. II. , N .S .
[Q. B.
Moreover, an arrangement to avoid the ex
pense of this double possession m ight easily have been made with the custom-house officer who acts as the deputy of the marshal on these occasions. He m ight have been instructed by the plaintiffs, in the event of the vessel being released from the warrants of the H igh Court of Adm iralty, to retain her under the County Court warrant. The marshal has shown me a letter from his deputy, dated March 25th, in which is this paragraph—“ I have given notice to the party on board under the County Court A dm iralty ju ris diction process, that the vessel was before he was placed on board, and s till remains under arrest under an Adm iralty w arran t; ” and in the affi
davit sworn by the plaintiffs’ solicitor at New
castle, I find this paragraph—“ I have been in formed and verily believe that previous to the in stitution of the suit in the County Court at New
castle, that three different suits had been in s ti
tuted in this honourable court, and the said court was and s till is in possession of the said vessel.”
I am of opinion that the plaintiffs were bound to know that the vessel was in possession under the warrant of this court, and, moreover, that the fact was distinctly brought to their notice by the cor
respondence which is set out in this case a month before they applied to transfer the cause, and that the charge for possession fees for forty-four days under the County Court warrant was rig h tly dis
allowed by the registrar. I agree w ith the obser
vations that the County Court Acts were not drawn with due care or perhaps adequate knowledge of the practice of this court, but that is no reason why I should put such a construction upon them as would result in the defendant being made to pay a double set of fees to the plaintiffs for the deten
tion of his vessel in a case where no concurrent possession was necessary. I dismiss the motion with costs.
Solicitors for the plaintiffs, Ingledew, Ince, and Greening.
Solicitors for the defendants, Bowland Miller, Simpson and Culling ford.
C O U R T o r Q U E E N ’S B E N C H .
R ep o rte d b y J. Sh o b t t and M. W .McKe l l a r, Esqra., B a rria te rs -a t-L a w .
Friday, Nov. 7, 1873.
The Riv e r Wea r Commissioners v. Adamson AN D OTHERS.
Damage to sea wall by vessel—Damage the result of stress of weather— Vessel abandoned by crew at the time—Liability of owner of vessel—The H a r
bours, Docks, and Piers Clauses Acts 1847 (10 &
11 Viet. c. 27), 8. 74.
The owners of a vessel, which the crew have left owing to stress of weather, are answerable, under sect. 74 of the Harbours, Docks, and Piers Clauses Act (10 & 11 Viet,, c. 27) for damage done to a sea wall, of ter the crew have left her.
In th is case, w h ic h was tr ie d a t th e la s t D u rh a m assizes before Q uain, J., a v e rd ic t was entered fo r th e p la in tiff fo r an a m o un t to be settle d b y an a rb itra to r, leave be in g reserved to th e defendant to move to en ter a v e rd ic t, o r fo r a nonsuit.
The action was brought to recover damages for an inju ry done by the defendant’s vessel to the sea wall of the port of Sunderland, the property in which is vested in the plaintiffs. The defendants’
L
146 M A R IT IM E LA W CASES.
Q. B.] J O L L IF IE AN D ANOTHER V. W A L L A S E Y L O C A L B O A R D . [0 . P.
vessel, meeting w ith bad weather, made for the harbour of Sunderland, but grounded near the sea wall, and her crew were then taken off from the vessel. Some time after the crew had le ft the ves
sel, the tide rose, and the vessel was driven gradually against the sea wall, to which in ju ry was thereby done.
Hollcer, Q.C. (with him Greenhow) now moved in pursuance of the leave reserved. Sect. 74 of the Harbours, Docks, and Piers Clauses A ct 1847 (10 &
11 Vic., c. 27) enacts that “ The owner of every vessel or float of timber shall be answerable to the under
takers for any damage done by such vessel or float of timber, or by any person employed about the same, to the harbour, dock, or pier, or the quays or works connected therewith, and the master or person having charge of such vessel or float of timber, through whose w ilful act or negligence any such damage is done, shall also be liable to make good the same; and the undertakers may detain any such vessel or float of timber u n til sufficient security has been given for the amount of damage done by the same; provided always that nothing herein contained shall extend to impose any lia
b ility for any such damage upon the owner of any vessel where such vessel shall, at the time when such damage is caused, be in charge of_ a duly licensed pilot, whom such owner or master is bound by law to employ and put his vessel in charge of.
This enactment points to the case of in ju ry done by a vessel which, at the time the in ju ry is done, is under the control of some one, and not to such a case as the present, where the vessel, at the time, was abandoned by her crew. This view is confirmed by the words that “ the master or per
son having charge of such vessel or float of timber through whose w ilfu l act or negligence any such damage is done, shall also be liable to make good the same.” [ Bla c k b u r n, J.—The vessel in the present case must have been actually in charge of some one ; i t was not a derelict.] I t was practi
cally a derelict. I t cannot have been the intention of the Legislature to make the owners of a vessel liable in case of such an inevitable accident.
[ Blac kb u r n, J.—I entertain a suspicion that the Legislature never had in their contemplation such a case as the present. B u t i f your contention is correct, then the case of Bonnis y. Tovell (L. Rep.
8 Q. B. 10; 27 L . T. Rep. N. S. 482) was ill de
cided. There this court was compelled to hold that sect. 74 applies to cases of damage done to a pier bv a vessel through inevitable accident caused by stress of weather.] The present case is distinguish
able from Dennis v. Tovell in this, that the vessel here was not under the control of any one at the time the damage was done. [ Bl a c k b u r n, J. lhe vessel was clearly not a derelict; and I do not th ink that the fact of having been grounded makes a difference. I shall be very glad if a court of error can put a different construction on the 74th section from that which we have felt bound to put upon i t ; and for that purpose we w ill give the defend
ants leave to appeal if they wish to do so.]
Buie refused.
Attorneys for defendants,/ohnson and Weath erall, for Haswell, Sunderland.
C O U R T O P C O M M O N P L E A S . Beported by H, F. Po o l e y and Jo h n Bo s e, Esqrs.,
Barristers-at-Law.
Nov. 10 and 13,1873.
Jollifpe an d an o th e rv. Wallasey Local Board. Obstruction to tidal river—Negligent exercise of
statutory powers— Omission to indicate obstruc
tion by sufficient buoy—Notice of actioti.
By a local Act the defendants were authorised to construct in conformity with certain deposited plans, “ and upon the lands delineated upon the said plans,” a pier or landing stage, “ together with such oilier works and conveniences in con
By a local Act the defendants were authorised to construct in conformity with certain deposited plans, “ and upon the lands delineated upon the said plans,” a pier or landing stage, “ together with such oilier works and conveniences in con