III. Of the Limitation of the Liability of Ship- Owners, and of their Liability for Repairs, &c.

No owner or part owner of any sea-going ship is liable, to any extent whatever, for damage to the cargo by fire; or for loss or damage to gold, silver, diamonds, watches, jewels, or precious stones by robbery or embezzlement, unless the true nature and value of the articles is, at the time of shipment, inserted in the bills of lading, or otherwise declared in writing to the master or owner (1).

No owner of any sea-going ship, or share therein, is answerable in damages beyond the value of the ship (m) and freight, due or accruing for the following events, occurring without his actual fault or privity-1. Loss of life or personal injury to any person carried in such ship. 2. Damage or loss to goods, merchandize or other things on board. 3. Loss of life or personal injury, caused by improper navigation of the ship, to any person in any other ship or boat. 4. Loss or damage, caused by improper navigation of the ship, to any other ship or boat, or to any goods, merchandize or things on board any other ship or boat; provided that the value of the ship and freight is in no case of loss of life or personal injury, to be taken to be less than 157. a ton (n). The liability, however, for loss of life, personal injury, or loss of or damage to goods, will be the same on each distinct occasion as if no other loss, injury or damage had arisen (o).

In cases of loss of life or personal injury, the Board of Trade is empowered to institute proceedings before a jury, presided over by the sheriff, in which the damages are to be assessed at 301. for each death or injury, subject to any compromise the Board of Trade may make (p). But any person dissatisfied with the amount may, on repayment of the statutory damages, sue on his own account, subject to liability to pay costs to the defendant, as between attorney and client, in the event of his failing to recover double the amount of the statutory damages (q). No action, however, can be maintained for loss of life or personal injury occasioned by an accident, until the Board of Trade inquiry has been concluded, or the Board of Trade has refused to institute proceedings (r).

(2) 17 & 18 Vict. c. 104, s. 503. See Morewood v. Pollock, 1 E. & B. 743; Williams v. African Steam Ship Company, 1 H. & N. 300; Bourne v. Gatliff, 11 Cl. & F. 45; 8 Scott, N. R. 604; 7 M. & G. 850; Gibbs v. Potter, 10 M. & W. 72.

(m) i. e., in ordinary cases the price she would have fetched immediately before the loss. African Steam Ship Company v. Swanzy, 25 L. J., Chan. 870.

(n) 17 & 18 Vict. c. 104, s. 504. As to the way in which the freight is to be estimated, see sect. 505, and see Leycester v. Logan, 3 K. & J. 441; 26 L. J., Chan.

306; Hill v. Audus, 1 K. & J. 263; 24 L. J., Chan. 229; Brown v. Wilkinson, 15 M. & W. 391; Atkinson v. Stephens, 7 Exch. 567; Wilson v. Dickson, 2 B. & A. 2; Cannan v. Meaburn, 1 Bingh. 465; Exp. Rayne, 1 Q. B. 982; Gale v. Laurie, 5 B. & C. 156.

(o) 17 & 18 Vict. c. 104, s. 506. (p) Ibid. ss. 507, 508, 509. (q) Ibid. s. 511. (1) Ibid. s. 512. As to the apportionment of damages between several claimants, and against several part owners, &c., see sects. 513, 514, 515.

Upon a general order for repairs given by the captain, the party executing them has the security of the ship, of the captain, and of the owners; but in an action against parties as owners, the question is, who are so for this purpose? the persons registered are not necessarily so; the Register Acts were not passed for this purpose; and the question of ownership, as it regards the liability for repairs, must be considered as it would have been before those acts were passed (s).

The registered owner of a ship is not liable for repairs, unless actually done upon his credit, as "it is perfectly well settled now, that the liability to pay for supplies to a ship depends on the contract to pay for them, and not on the ownership of the ship" (t). The register, however, has been decided to be no evidence of ownership, so as to fix the party whose name appears thereon, for contracts entered into on behalf of the ship by the master (u), for the case "depends on contract; and the question is, with whom was the contract made: and that depends on another question, now very well understood, viz. whether the master was the agent of the party sought to be fixed with liability in respect of a contract made by him" (x). So, also, the fact of a man's being registered part owner of a ship, does not give his co-owner or the broker's authority to pledge his credit for necessary repairs (y). So, also, the fact of the master being registered as such, is not sufficient to charge the registered owner, unless he has sanctioned the master's appearing to be his master acting for him, and the work was done on the faith of the master being his master (z). In Jennings v. Griffiths (a), Lord Tenterden held that legal ownership is primâ facie evidence of liability, which may be rebutted by proof of the beneficial interest having been parted with, and of the legal owners having ceased to interfere with the management of the ship. As where A., the managing owner of a ship, mortgaged his share to B., who procured the transfer to be duly indorsed on the certificate of registry, but A. continued in the management as before, and gave orders for repairs and stores, and B. did not take possession or interfere in the concerns of the ship; it was held, that B. was not liable for such repairs and stores so ordered by A. (b). So where a steam-vessel was let by charter-party for twelve months, the registered owners engaging to keep the engine in repair, but the charterer binding himself to do all other repairs, to pay all wages

(s) Per Littledale, J., in Reeve v. Davis, 1 A. & E. 315, 316.

(t) Judgment in Mitcheson v. Oliver, 5 E. & B. 443.

(u) Myers v. Willis, 17 C. B. 77; 18 C. B. 886; Mackenzie v. Pooley, 11 Exch. 638.

(x) Per Jervis, C. J., ibid. 17 C. B. 103. (y) Brodie v. Howard, 17 C. B. 109; Hackwood v. Lyall, 17 C. B. 124. See

Preston v. Samplin, 2 H. & N. 363.

(z) Frost v. Oliver, 2 E. & B. 301; Mitcheson v. Oliver, 5 E. & B. 419. (a) 1 Ry. & M. 42.

(b) Briggs v. Wilkinson, 7 B. & C. 30; Jennings v. Griffiths and Briggs v. Wilkinson were recognized in Curling v. Robertson, 8 Scott's N. R. 12; 7 M. & G. 336. See Holmes v. Preston, 2 H. & N. 684.

and charges of navigating, &c., and to indemnify the owners against all debts, costs, damages, expenses, &c. incurred in respect of the charter-party and employment of the vessel. The owners were to appoint the engineers. The charterer, who acted as captain, had repairs done to the vessel by persons unacquainted with the contract it was held, that no action lay, in respect of those repairs, against the registered owners (c). So a party who takes a share in a ship, under a conveyance, void for want of conformity with the provisions of the Registry Acts, is not (d) liable for articles furnished to the ship, unless credit be given to him individually, or he holds himself out as owner.

The master of a ship has authority by law to pledge the credit of his owner, resident in England, not only for necessaries but also for money advanced to the master in an English port where the owner has no agent, if such advance of money was necessary for the prosecution of the voyage (e); but the case must be one where the necessity is pressing, and the master and owner cannot communicate without very great prejudice and delay (f); and whether it was so or not is a question for the jury (g): but the owner of a ship is not liable for money advanced to the master, although it has been properly expended by the master for the purpose of the ship, unless the money was borrowed by the master expressly for that purpose (h). And where money is lent and goods supplied to the master at a foreign port, the onus is on the plaintiff to prove that they were necessaries (i).

(c) Reeve v. Davis, 1 A. & E. 312; 3 Nev. & M. 873, recognizing Briggs v. Wilkinson.

(d) Harrington v. Fry, 2 Bingh. 179.

(e) Organ v. Brodie, 10 Exch. 449; Arthur v. Barton, 6 M. & W. 138, recognized in Weston v. Wright, 7 M. & W. 396. See ante, p. 1037.

(f) Per Patteson, J., in Johns v. Simons, 2 Q. B. 425; but see Edwards v. Havill, 14 C. B. 107.

(g) Arthur v. Barton, ubi sup.

(h) Thacker v. Moates, 1 M. & Rob. 79; Beldon v. Campbell, 6 Exch. 886. (i) Mackintosh v. Mitcheson, 4 Exch. 175.

VOL. 11.

0 0

1253

1261

1266

II. Of the Action for Slander, and in what Cases it may

..

be maintained, III. Of the Declaration, and herein of the Nature and Office of the Innuendo,..

SLANDER spoken and published of a peer is termed scandalum magnatum. The 3 Edw. I. Westm. 1, c. 34, commands, "That none be so hardy to tell or publish any false news or tales, whereby discord, or occasion of discord, or slander, may grow between the king and his people, or the great men of the realm; and he that doth so, shall be taken and kept in prison, until he hath brought him into the court which was the first author of the tale" (a). And by 2 Ric. II. c. 5, "None shall devise or speak false news, lies, or other such false things of the prelates, dukes, earls, barons, and other noble and great men of the realm, and of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or the other, and other great officers of the realm; and he that doth, shall incur the pain of the stat. Westm. 1, c. 34." And by 12 Ric. II. c. 11, "When any such [person, as is described in the foregoing statutes] is taken and imprisoned, and cannot find him by whom the speech be moved, he may be punished by the advice of the council, notwithstanding the statute of Westm. 1, c. 34, and 2 Ric. II. c. 5." The foregoing statutes do not expressly give an action; yet it has been held, that the party injured may maintain an action on the 2 Ric. II. c. 5, upon the principle of law, that an action lies on a statute, which prohibits the doing an act to the prejudice of another (b). Though the dignity of viscount was not created at the time when

(a) See Sir Edw. Coke's exposition of (b) 2 Inst. 118; 10 Rep. 75, b. this statute, 2 Inst. 225.

this statute was made; yet it has been held, that such dignity is within the statute (c); and a peer of Scotland, since the union, may also take advantage of the statute (d). The form of declaration is, tam pro domino rege quam pro seipso, concluding contra formam statuti (e). The 2 Ric. II. c. 5, is a general law (f), and consequently need not be pleaded (g); but if the party undertook to recite it, and failed in a material part, it would have been fatal (h). It must appear on the face of the declaration, that the party injured was unus magnatum at the time when the words were spoken (i). Special bail was not required in this action (k), and the venue could not be changed upon the common affidavit (1). Neither could a writ of error be brought upon it in the Exchequer chamber; for it has been held, that this action is not an action on the case within the meaning of the 27 Eliz. c. 8, which gives the writ of error in Exchequer chamber in certain actions (m). There is a dictum in 2 Show. 506, that in a scand. mag. the plaintiff obtaining a verdict will not be entitled to costs. It has been held, that certain words are actionable in the case of a peer, which would not have been deemed so in the case of a common person; as in Lord Townshend v. Hughes, where the defendant said of the plaintiff, "he is an unworthy man, and acts against law and reason" (n).

II. Of the Action for Slander, and in what Cases it may be maintained.

In former times, the action for slander was very rare; the first action for words to be found in the books was in the 30th year of Edw. III. Lib. Ass. fo. 177, pl. 19; and from that time to the reign of Queen Elizabeth, these actions were few in number, and not brought on frivolous causes; during the reigns of Queen Elizabeth and King James, they began to increase, and in modern times the action has been more frequent. Actions for words should not be brought upon slight and trivial occasions; and where the words. are merely words of heat, anger, or passion, spoken suddenly or

(c) Visc. Say and Seale v. Stephens, Cro. Car. 135.

(d) Visc. Falkland v. Phipps, Comyns' R. 439. Some of the old precedents state the plaintiff to have vocem et locum in parliamento. See Vid. Entr. 74; and Bohun, 319, 320: but these words are unnecessary, and they are omitted in two precedents in Herne, 200, 201. Vid. 61, 63.

(e) Vid. Entr. 74. An action upon a statute which prohibits a thing, but does not give any penalty, must be brought tam pro rege quam pro seipso, because in such case the king is to have a fine. Waterhouse v. Bawde, Cro. Jac. 134. See the precedents cited in n. (d) supra.

(f) Doct. Plac. 339; 4 Rep. 13, a. (g) Lord Shaftesbury v. Lord Digby, 2 Mod. 98.

(h) 4 Rep. 12, b.; for instances of misrecital, what fatal, and what not, see 1 Com. Dig. 188, (B.) 3.

(i) Adm. Cro. Jac. 136.

(k) 12 Mod. 420; 2 Mod. 215, S. P. (1) Duke of Norfolk v. Alderton, Carth. 400; Duke of Richmond v. Costelow, 11 Mod. 234; 2 Salk. 668; 1 Lev. 56; 1 Bac. Abr. 36.

(m) Lord Say and Seale v. Stephens, Cro. Car. 142; Ley, 82, S. C.; Sir W. Jones, 194, S. C.

(n) 1 Mod. 232; 2 Mod. 150, S. C.