66 into the port of Harwich to refit. She was there arrested, by the usual warrant for that purpose, on the part of Andrew Laurie, Thomas Gilchrist, Thomas Hill, John Wilson, Robert Marshall and others, trading under the firm of the Berwick Old Shipping Company, as owners of the ship" Princess Charlotte," in a cause of damage civil and maritime. The action was entered in the sum of £9000, against the ship, her tackle, apparel and furniture. Independently of these sailing stores, which are necessary for the general purposes of navigation, the "Dundee " had on board boats, fishing-tackle, such as harpoons, lines, and rockets, casks and various other implements, commonly termed fishing stores; and a question being raised as to the liability of the owner of the "Dundee " (for the loss that had been incurred by the owners of the Princess Charlotte ") beyond the value of " the ship, her tackle, apparel and furniture," it was agreed, that separate valuations should be made, and the point [110] reserved as to the quantum of liability, until it was ascertained whether the Dundee" was in fault. The ship, her tackle, &c. &c., were valued at £2685 and her fishing stores at £2236, and bail was given in the sum of £9000, being the full extent of the action, warrant and arrest, but with the express condition, that it was without prejudice to the question of the owner's liability beyond the appraised value of the "ship, her tackle, apparel and furniture." On the 4th December 1821, the Judge of the High Court of Admiralty, assisted by two of the elder brethren of the Trinity House, decided, that the Dundee was the wrongdoer, and condemned her owner and the bail in the amount of damage, and in the costs sustained by the owners of the "Princess Charlotte"; and referred the accounts and vouchers to the registrar and merchants to assess the amount of damage, and to report accordingly. The registrar reported the amount of damage at £4544, 12s. 6d. An objection was taken to this report in order to ascertain the extent of the owner's liability under the 53 Geo. III, c. 159,-" to limit the responsibility of shipowners," and also under the instruments upon which the action was commenced. The circumstances, on both sides, were set forth in an act on petition. For the owner of the "Dundee," Adams and Jenner.-The Court has decided that the "Dundee" was the wrong-doer; not owing to any particular wilfulness of misconduct on her part, but owing to another vessel coming between the " Dundee and the smack that was unfortunately lost. An action was entered in the usual way, against the ship, her tackle, apparel and furniture, and the warrant was extracted in the same form. Bail [111] was afterwards given to the full amount of the action, but with an express reservation as to the liability of the fishing stores. The fishing stores have been appraised at the sum of £2236; but the whole of the value of the ship, her tackle, apparel and furniture, was estimated at £2685-as to this latter sum, there is no dispute; but we deny our liability beyond it, and the registrar's report exceeds the value of the ship and her sailing stores, but does not amount to the aggregate value of the ship and her fishing stores. We do not object to any particular items of this report, but our objection is general, on the ground that our liability does not extend to the loss sustained by the owners of the Princess Charlotte," but is confined to the value of the "Dundee," her tackle, apparel and furniture. 66 The nature of the action-the warrant and actual arrest are the first things to be regarded; and it so happens that the language in all the instruments is the same: it describes this proceeding as "against the ship, her tackle, apparel and furniture." The certificate of the due execution of the warrant is to the same effect. It will not then be contended, we presume, that fishing stores can be reached under those terms. Bail, it is true, has been given; but it must be taken to be only co-extensive with the action itself; it will not go beyond the value of the thing to be released. The object of giving bail was to effect the release of that to which the action itself had been limited, viz., "the ship, her tackle, apparel and furniture." But an extended construction of liability is set up in this case; and it is alleged, that there exists an agreement, voluntarily made by our own agents, which [112] carries the liability of the owner of the " Dundee " further than the warrant of arrest limited, as this was, in its form and description, to the ship, her tackle, apparel and furniture. What is the history of this agreement? Mr. Gale, the owner of the "Dundee, employs two gentlemen to attend at Harwich upon the release of his ship; the person, in whose custody she was, refused to give her up, without an undertaking in writing for bail to the action and arrest, according to the value of the "Dundee " as she then lay in harbour. They consent to give it, in order that the fishing-season might not be lost. The agreement recites, that an action was entered against the 'Dundee,' her tackle, apparel and furniture," and then undertakes that "bail shall be put in and perfected in this cause to the amount of the value of the said ship and appurtenances." Upon this last word much of the argument must necessarily turn. But can it be said, that considering where it is found, the term can embrace more than was expressed by the preceding phrase in the heading? It is the adoption of one single word to comprehend the ship, tackle, apparel and furniture. It is a short mode of expression to prevent repetition. What inducement could these gentlemen have to extend the owner's liability beyond the amount itself of the ship, her tackle, &c. &c.? Why should they have gone beyond the actual action? Certainly, a person may engage to give a larger gratuity than what the law requires; but that has not been done here. They adopted a word strictly confined to the language used in the heading of the agreement; such was their view of the matter; and the adverse parties themselves [113] seem to have put the same construction upon the agreement, till they wrote to the act on petition. A modern statute, the 53 Geo. III, c. 159, is extremely applicable to the argument; and the Court itself alluded to it in the recent case of The Carl Johan.” * It then remarked, "that anciently the owners were, under the general law, civilly answerable for the total loss occasioned by the negligence or unskilfulness of the persons they employed; but the avowed purpose of the relaxation of this rule of law, was to protect the interests of those engaged in the mercantile shipping of the state, and to remove the terrors which would otherwise discourage people from embarking in the maritime commerce of a country, in consequence of the indefinite responsibility which the ancient rule attached upon them. It was a measure evidently of policy, and established by countries for the encouragement of their own maritime interests." And the Court held, in that case, that it was a law as to British ships, but not as to foreign ships, nor for foreign owners. They then adverted to the Act itself, entitled "An Act to limit the responsibility of shipowners," and recited the preamble, and the acts there enumerated, and argued upon the force of the clause, that no owners, or partowners, of ships shall be subject to answer for any damage done to other ships without their fault, further than the value of their own vessel, and the freight due or to grow due for and during the voyage which may be in prosecution, or contracted for, at the time that the loss or damage may happen." In this case, the value of [114] the responsibility is confined to the ship, as no freight was earned. The voyage was altogether most disastrous. 66 66 When the present transaction took place, the Act of the 53 Geo. III had long passed; it was familiar to all shipowners; and if the word "appurtenances " (as we contend) did not apply even before the Act, it is much less capable of receiving such a construction afterwards. The Act, it is true, uses the word in many of the subsequent sections (in the 7th, 8th, 10th, and 13th). It is, however, only used to prevent repetition, and in those parts of the Act which contain directions as to proceedings in equity; but in the enacting part, the part which is most important, and which specifically relates to the liability of owners, it is not used. In the passages in which it is to be found, it is evidently used in the same sense which it was intended to bear in the agreement, where it was adopted to prevent the too frequent recurrence of the words apparel, tackle and furniture." The first section, as far as bears upon the present question, limits the liability of the owner to the value of his ship, and to the freight due or to grow due." The second section puts a construction upon the word freight, and it embraces the carriage of goods belonging to the owner, and also the hire of the ship in case she is sailing under a contract. And it was a proper provision of the Legislature, that the price of the carriage of such goods should go to the freight; as, in owner's goods, there is nothing that can be considered as freight, in the strict sense of the word. What an incongruous construction it would be after this to say, that the actual value of the cargo, and not the mere freight [115] of it shall contribute. The goods themselves are not to be included incidentally, when their hire is provided for in direct terms. But, independently of the construction of this statute, the word "appurtenances" can, in no strict legal interpretation, * Case of a British vessel run down by a Swedish vessel, decided November 20th, 1821, MS. E. & A. VI 2* 42 THE DUNDEE 1 HAGG. 116. be said to go beyond a thing inseparably and necessarily connected with it; and they argued that 53 Geo. III, c. 159, was of large and general operation, and that it was unsafe for the Court to construe it according to a particular voyage, and the particular course of trade in which a ship happened to be engaged, so as to subject goods on board, as appurtenant to a ship, to be within the intention of the Legislature. Whatever damage, therefore, the Dundee has done, she must compensate it on the same principles of responsibility that would apply to any other British vessel : She should be viewed not as a Greenlander, but as a navigating ship, and fishing stores are not necessary for a ship's navigation. The appurtenances are only what is absolutely necessary for a navigating ship, and not for her incidental trade; they do not include the means taken on board for the success of that trade. Suppose a wine ship, or a ship in the African trade, or a vessel outward bound in search of a cargo of dyeing woods ;-the staves and casks taken out for the reception of the homeward cargo, or the articles of barter, could never be claimed as appurtenances, more especially under the restricted liability of an owner in virtue of the different legislative enactments. And there is no more necessary connection between fishing stores and a vessel in the Greenland trade, than between ships and the articles just mentioned. Again, fishing stores are always separately insured, since it has been [116] held, in the case of a Greenland ship, that they are not within a policy of insurance for ship, tackle and furniture." Hoskins v. Pickersgill.* This shews what the common acceptation of the term is in the usage and understanding of merchants. Neither would they pass in a conveyance. The dicta of maritime writers, which are collected by Mr. (now Lord Chief Justice) Abbott in his work on Shipping," that a ship's boat would not pass by a conveyance of a ship, her tackle, &c." go further, perhaps, than the law of this country would, because our printed forms of bills of sale mention" boats, oars and appurtenances whatsoever to the ship appertaining"; but no one can say, that upon the sale of this ship in the ordinary manner, her fishing stores would be included in the word appurtenances "; they do not appertain of necessity to the ship; they are the proper appurtenances to the cargo, and are the means and instruments of providing a cargo and sending it home. Fishing stores are not, therefore, strictly and properly appurtenances to the ship, though, without them, it might be difficult to furnish a cargo. Supposing this ship had been chartered for the voyage, these articles would not then have been furnished by the shipowners; could they, in such a case, have been made liable to contribute in compensation? They then referred to Blackstone's Commentaries for the meaning of the word appurtenant," when used in the sense of "common appurtenant," shewing, that it clearly signi-[117]-fied a thing which is absolutely inseparable from the freehold, being claimed in right of it by immemorial usage and prescription. So again, with respect to a seat or pew in a church, claimed as appurtenant to a dwelling-house. Appurtenances, therefore, both in the language of the Act of Parliament, and according to all legal understanding of the same word, must be taken to mean, not anything which is in a manner accidentally connected with another, but something so inseparable from it, that it can hardly be taken away without destroying it. Now, if you take away the masts and rigging of a ship, you destroy the thing; she is no longer a ship-she is a mere hull; but if you take away the fishing-tackle, it is not so; she is still a navigable ship. The fishing-tackle was only accidentally on board; it is not necessarily so; and the case is to be considered not qua Greenlander, but as a navigating ship. A doubt may even arise as to the jurisdiction of the Court, in regard to this fishing-tackle. The action is against a specific thing; bail is given to the action for it; the jurisdiction is in rem-what is the res?" the ship, her tackle, apparel and furniture," and their proceeds, the representative of the res. The bail, however, being given for a specific thing, it can in no way contract or extend the legal responsibility, any more than the undertaking for the bail. 66 Arnold and Lushington, contra. 66 By the general law, owners were responsible for any loss or damage occasioned by their ships, or by those who were entrusted with their management. This general liability has been limited by several Acts of Parliament. The 7 Geo. II, c. 15, provides *Park on Insurance, p. 97, 7th ed. Marshall on Insurance, p. 735, 3d ed. ‡ Vol. ii, p. 32, Coleridge's ed. that, in cases of embezzlement by the [118] master or mariners, of any goods on board, the liability of the shipowners shall be confined to the value of their ship and freight. The next Act is the 26 Geo. III, c. 86, which extends the former provision, in diminution of their liability, to acts of embezzlement done by other persons on board, without the privity of the owners, and in which the master or mariners shall not be concerned. A further relief is given by the provisions of the 53 Geo. III, c. 159, by which the preceding limitations are extended to other cases of loss. These statutes, however, being in limitation of the general law, their effect is not to be extended beyond the fair construction of the terms they adopt. The terms of the enacting clause of the 53 Geo. III are to be taken with reference to the 7th, 8th, 10th, and 13th clauses of the same Act, in which the responsibility of the shipowner is treated as limited "to the value of the ship with all her appurtenances and freight": and we contend that the word appurtenances must be taken to include all that is absolutely necessary for the particular ship that occasioned the damage, and the voyage she was at that time pursuing. We are not introducing an arbitrary interpretation of the words "ship and freight," because the interpretation is given in the subsequent sections of the Act itself, particularly in section 7, where certain proceedings are marked out in case the vessel, with all her appurtenances, and the amount of the freight, shall not be sufficient to make full compensation to all injured parties. This and the other sections referred to plainly shew, that appurtenances are included in the phraseology of the earlier sections, and declare the extent to which those terms [119] will go. The ship was solely equipped and fitted out for the Greenland fishery, and was, at the time she caused this serious damage, on a fishing voyage to Davis's Streights; her fishing-tackle was on board, and must be considered as part of her appurtenances; and when the ship was released at Harwich, an engagement was made, by persons duly authorised by the owner, that bail should be given to the amount of the value of the ship and appurtenances. The form of process that was used upon the arrest of the vessel, was that which is the only and ancient formula of the Court. The action was entered and the warrant was decreed in the ancient and recognised form, viz. against the ship, tackle, apparel and furniture, and bail is put in following the same expressions. It was under this form of process that the general responsibility of the shipowner was enforced, before any legislative interposition. These are the forms and instruments that were in existence and use under the general law; and they extended to the owner's general liability: If then they included the whole liability, they will necessarily include that which is left of the whole. The case of Hoskins v. Pickersgill, that has been cited, is not applicable; for the construction of policies of insurance is always arbitrary; and it does not appear that, in that case, the word "appurtenances was used, so that if it had been used, there is nothing to shew that fishing-lines would not have been included. In Brough v. Whitmore, 4 T.R. 206, the word "furniture" in an action on a policy of insurance upon an East India ship, and on the tackle and furniture of the ship, was held to include the stores and provisions which were for the use of the ship's [120] crew.* The custom of merchants, therefore, with regard to the construction of policies of insurance, is apparently too uncertain to assist in the right determination of this question. Judgment-Lord Stowell: The question which the Court is now called upon to lecide arises out of an unfortunate case, in which it appears that the ship" Princess Charlotte" was run down and sunk by the Greenland whaling ship the " Dundee," then bound on a fishing voyage to Davis's Streights, and totally lost and destroyed, not certainly with any purpose of such destruction, or indeed with any purpose of injury whatever, for that would have required a consideration of a very different kind, but from a want of that attention and vigilance which is due to the security of other vessels that are navigating on the same seas, and which, if so far neglected as to become, however unintentionally, the cause of damage of any extent to such other vessels, the maritime law considers as a dereliction of bounden duty, entitling the sufferer to reparation in damages. The quantum of reparation due in such cases has been differently measured in * In the United States, a policy on the ship is understood to extend to the sails, rigging, tackle, furniture, boat, and provisions.-Phillips on Insurance, Boston (U.S.), 1823. the maritime laws of different commercial countries, and of the same commercial country, amongst others our own, at different periods. The ancient general law exacted a full compensation out of all the property of the owners of the guilty ship upon the common principle applying to persons undertaking the con-[121]-veyance of goods, that they were answerable for the conduct of the persons whom they employed, and of whom the other parties who suffered damage knew nothing, and over whom they had no control. To this rule our own country conformed; and it is not to be denied that the term compensation is not very accurately applied to any restitution that falls short of a fair and full indemnification for the injury done. But Holland having introduced a law for the protection of its navigation, that persons interested in it should not be liable beyond the value of that property of their own which they exposed to hazard-their ship, freight, apparel and furniture, England followed in successive statutes, by which it protected owners from responsibility beyond those interests, first, in the case of embezzlements committed by some of the crew of the ship herself; *1 and, in a succeeding statute,† this protection was extended to the case of embezzlements committed by other persons. The Legislature proceeded, in a later statute, to give the same protection in the case of all losses otherwise produced. The latter statute, which most immediately applies to the present question, in the first enacting clause, subjects the ship, tackle, apparel and furniture, and its freight, but in the following clauses, particularly in the 7th and 8th, the word appurtenances is introduced, and is repeated as subject to contribution. Now these latter clauses must be considered as explanatory of the first clause, proving that the obligation of that clause, though briefly expressed in its own terms, was intended to embrace whatever could be fairly considered as the [122] appurtenances of the ship. It cannot be supposed that these following clauses introduce an inoperative word totally without meaning: and they can have no meaning unless they are understood to be virtually incorporated in the first clause, and to derive an operation from it. If not so, they are either totally unmeaning, or they must stand in direct contradiction to the enacting clause, if that clause confines its own intended meaning to the ship and freight only, and these other clauses carry it to other subjects. The word cannot be considered with any propriety as the intrusion of a new, distinct, and distant subject. A cargo cannot be considered as appurtenances of the ship, being that which is intended to be disposed of at the foreign port for money, or money's worth vested in a return cargo. Its connection with the ship is merely transitory, and it bears a distinct character of its own. those accompaniments that are essential to a ship in its present occupation not being cargo, but totally different from cargo, though they are not direct constituents of the ship (if indeed they were, they would not be appurtenances; for the very nature of an appurtenance is, that it is one thing which belongs to another thing); yet if they are indispensable instruments, without which the ship cannot execute its mission, and perform its functions; it may, in ordinary loose application, be included under the term ship, being that which may be essential to it, as essential to it as any part of its own immediate machinery. But The appurtenances here particularly charged as liable to contribute, are the fishing stores, valued by the merchants at Lloyd's at £2236, the ship being valued at £2685, and being equipped for a [123] whaling voyage to Davis's Streights. The owner of the ship, who is charged with the injury, contends, that these fishing stores are protected from all liability to contribute, first, by the mode in which the suit commenced by an arrest of the ship, tackle, apparel and furniture only, without including the fishing stores; for it has been argued, that fishing stores cannot be considered as furniture, inasmuch as it has been determined, on the authority of the case of Hoskins v. Pickersgill, which was quoted, that they are not entitled to be so considered. It is a case to be found in two or three works, stated concisely,*2 but more fully in Mr. Serjeant Marshall's book on Insurance.†t He observes, that the usage of trade often controls the general construction of the policy; and what *1 7 G. II, c. 15. † 26 G. III, c. 86. *2 Park on Insurance, p. 97, 7th ed. 53 G. III, c. 159. †The edition of 1823, p. 735, published by the author's son, notices fully the case of The "Dundee," as does Mr. Holt in the last edition of his work on Shipping and Navigation, p. 405. |