Goodwin Johnson v. The Ship (Scow) A.T. & B. No. 28

. .

APPELLANT; *Nov. 17, 1S AN

AND

*June 21 THE SHIP (SCOW) AT & B No. 28

THE SHIP (SCOW) ESM No. X

DEFENDANTS. THE SHIP (SCOW) MARPOLE II

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA BRITISH COLUMBIA ADMIRALTY DISTRICT

Shipping-Action in rem-Tug and tow-Liability of res where negligence that of charterer-Where negligence that of an independent contractor. In a day of rough weather three unmanned scows, possessing neither motive nor steering power, drifted into and damaged the appellant's booming ground in Vancouver Harbour. In an action in rem, brought against each of the respondent vessels, it was established that the scow AT & B No. 28 was under a charter which placed her in the charterer's sole control but no evidence was given as to how she had drifted into the booming ground.

The scow ESM No. X had been unmoored by the crew of a tug, an independent contractor, who was employed to tow her elsewhere but abandoned her to pick up other scows that had gone adrift whereupon she drifted into the booming ground.

The action brought against the Marpole II was taken in error as the damage alleged to have been done by her was done by the Marpole XI, a scow belonging to the same owners. Held: 1. There was a prima facie case of negligence against the charterers of the AT & B No. 28 which was unanswered and, since negligence in the navigation of a ship for which the charterer is liable subjects the ship itself to a maritime lien for the damages caused thereby, she was therefore liable.

The Bold Buccleugh 7 Moo. P.C. 267 approved in Currie v. McKnight [18971 A.C. 97, applied.

Per: The Chief Justice and Locke JJ.: If the claim was in nuisance, it would fail since the nuisance, if any, resulted from the act of an independent contractor and there was no evidence upon which it could be found that the owner had become aware of it or should have become aware of it and thereafter failed to abate it. Sedleigh Denfleld v. O'Callaghan [19401 A.C. 880 at 904 applied.

Judgment of Smith J., District Judge in Admiralty [19521 Ex. C.R. 226, varied.

Rinfret C.J. and Rand, Locke, Cartwright and Fauteux JJ. 87579-2

APPEAL by the plaintiff from the judgment of Smith J., District Judge in Admiralty of the Exchequer Court of Canada (1), dismissing proceedings in rem taken by the plaintiff to enforce a maritime lien against each of the respondent vessels.

:- J.:-It is clear that the action against The Scow Marpole II fails since the evidence shows that she was not at the place in question at the time the damage complained of was occasioned.

The E S M No. X is a flat deck lumber scow owned by Canadian Forest Products Limited and had been towed to the pool by a tug of the Gulf of Georgia Towing Co. Ltd. prior to December 2. On that date, the tug "Goblin" owned by the latter company went to the scow mooring grounds about 8 o'clock with instructions to tow the scow to a new location. On arrival, Ludgate, a member of the crew of the tug, boarded the scow and let go the lines by which she was tied to another scow moored there. Before a tow line from the tug was made fast, those in charge of the tug seeing some other scows which were breaking adrift, or were adrift, went to attempt to pick them up, and while it was so engaged the scow drifted into the booming grounds of the plaintiff, causing considerable damage before it could be removed. While I think the evidence is not entirely clear on the point, I think this scow was only in the booming ground on one occasion that morning. It was shown that the Gulf of Georgia Towing Co. Ltd. was employed by the owners of this scow to tow their lumber barges from their mill to the harbour, for which they were paid by the trip, the manner in which the tow was carried out being decided upon by the tug company. Different considerations affect the claim against the Scow AT & B No. 28. This, like the other scows, had neither motive power, steering power or crew.

It was owned by James Aitken, Jr. and for a number of years had been chartered on a bare boat charter basis to the Vancouver Towing Boat Co. Ltd. and was entirely under the control and direction of that company. The charter was not produced but it was referred to by the trial Judge as a charter by demise.

According to Ludgate, when the Goblin arrived at the et mooring grounds shortly after 8 o'clock, an "AT & B" scow was adrift in the plaintiff's booming grounds, and I think it is clear that this was the scow in question. No evidence was given as to how the scow broke loose, or indeed to show that she had been moored on the mooring grounds. The plaintiff's case against this scow must, therefore, be put upon the footing that the fact that she was adrift within the mooring ground unattended raises a prima facie case of -negligence or nuisance against the scow, since the proceedings taken are in rem only.

The learned trial Judge dismissed the action against the E S M No. X on the ground that, as it was shown that the cause of her going adrift was the negligence of the Gulf of Georgia Towing Co. Ltd., an independent contractor under whose control she was -at the time she broke loose, there was no liability in proceedings in rem. Unless there is some distinction to be made between a case such as this, where the tug had not actually commenced the tow, and the case of a dumb barge such as this, cast adrift during the course of a tow or striking some vessel owing to negligent navigation on the part of those in charge of the tug, the appeal in respect of this scow should fail, in my opinion.

The cases to which we have been referred do not directly decide the question to be determined. In Union Steamship Co. v. The Aracan (1), the American, a screw steamship was towing the S.S. Syria in the English Channel and, while so doing, came into collision with the Aracan, a sailing ship.

Damages were claimed against both of the steam vessels and the American was found wholly to blame. The claim that the Syria was also liable for the loss, which succeeded in the High Court of Admiralty, failed before the Judicial Committee.

For the Aracan, reliance was placed upon a portion of the judgment of the House of Lords in The Cleadon (1), where upon the facts of that case Lord Chelmsford has said that the Cleadon being in tow of -the tug it was admitted that she and the tug must be considered to.be one ship, the motive power being in the tug and the governing power in the Cleadon, the ship that was being towed. As to this, however, Sir Robert P. Collier, delivering the judgment of the Court, said that in the case before them the governing power was wholly with the American, the movements of that vessel not being under the direction or control of the Syria, and that the reasoning upon which the decision in the Cleadon was based was therefore inapplicable.

This principle is reaffirmed in the judgment in the.House of Lords in S.S. Devonshire (Owners) v. Barge Leslie (Owners) (2).

These cases and The Quickstep (3), were cases of faulty navigation on the part -of those in charge of the tug during the course of the tow. Here, however, the tow had not commenced, since no line 'had been made fast to the tug when she temporarily abandoned the work for which she was employed and went to attempt to rescue the other scows. The owners of the tug are not parties to this action, the proceedings being in rem alone against the scow and nothing should be said, in their absence, to determine the question of their liability to the present appellant. However, upon the evidence before us, it would appear that it was the negligent act of those in charge of the tug which 'caused the E S M No. X to become adrift and to injure the appellant's property and, in so far as the claim may be based upon negligence, I agree with the learned trial Judge that, as the tug owners were independent contractors, the scow is not liable.

It may, however, be contended that there is some liability in the scow on a claim in nuisance.

It is undoubted that a scow of the size of the E S M No. X adrift in the Harbour of Vancouver would constitute a menace to booming grounds or other -adjacent property, and it may be contended that such nuisance was created by the failure of the owner of the scow to see that she was properly moored. As pointed out by Lord Wright in his judgment in Sedleigh Denfield v. O'Callaghan (1), negligence is not a necessary condition of a claim for nuisance. Here, 'how- GOODWIN ever, assuming the scow adrift in the harbour constituted JoNSON a nuisance, I think what was said further by him at p. 904 in the Sedleigh Denfield case applies.

He there said in part:- Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered- does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then -he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it.

The nuisance referred-to in this passage was one created by the act of a stranger, but what was said by Lord Wright is of wider application and, in my opinion, should be applied where it results from the act of an independent contractor, as in the present case, whether, as here, the action is in rem or in personam against the owner on this footing.

As to the claim against the Scow AT & B No. 28, the position taken by the respondent is that, in order to impose liability in rem for the damage caused by it when it was adrift in the booming ground, it is necessary to show that the owners were personally liable and that since there was a charter by demise in favour of the Vancouver Towing Boat Company Limited and the scow was under the control of that company no lien attached.

The question is one of great importance. It is necessary at the outset to consider the nature of the maritime lien which may attach to a ship which, through the negligent management of those in charge of it, has occasioned damage to others.

(1) [19401 A.C. 880 at 904.

In the case of Harmer v. Bell (1), which arose over damage -caused by The Bold Buccleugh and which is com- DO.

monly referred to by that name, the Judicial Committee, THE SIP on appeal from the High Court of Admiralty, stated the nature of such a lien in the following terms (pp. 284-5):- A maritime lien does not include or require possession. The word is used in Maritime Law not in the strict legal sense in which we understand it in Courts of Common Law, in which case there could be no lien where there was no possession, actual or constructive; but to express, as if by analogy, the nature of claims which neither presuppose nor originate in possession. This was well understood in the Civil Law, by which there might be a pledge with possession, and a hypothecation without possession, and by which in either case the right travelled with the thing into whosesoever possession it came.

Having its origin in this rule of the Civil Law, a maritime lien is well defined by Lord Tenterden, to mean a claim or privilege upon a thing to be carried into effect by legal process; and Mr. Justice Story (1 Sumner, 78) explains that process to be a proceeding ii rem, and adds, that wherever a lien or claim is given upon the thing, then the Admiralty enforces it by a proceeding in rem, and indeed is the only Court competent to enforce it. A maritime lien is the foundation of the proceeding in rem, a process to make perfect a right inchoate from the moment the lien attaches; and whilst it must be admitted that where such a lien exists, a proceeding in rem may be had, it will be found to be equally true, that in all cases where a proceeding in rem is the proper course, there a maritime lien exists, which gives a privilege or claim upon the thing, to be carried into effect by legal process.

This claim or privilege travels with the thing, into whosesoever possession it may come.

It is inchoate from the moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached.

This simple rule, which, in our opinion, must govern this case, and which is deduced from the Civil Law, cannot be better illustrated than by reference to the circumstances of The Aline '(1 W. Rob. 111), referred to in the argument, and decided in conformity with this rule, though apparently upon other grounds.

In that case, there was a bottomry bond before and after the collision, and the Court held, that the claim for damage in a proceeding in rem, must be preferred to the first bond-holder, but was not entitled against the second bond-holder to the increased value of the vessel by reason of repairs effected at his cost. The interest of the first bond-holder taking effect from the period when his lien attached, he was, so to speak, a part owner in interest at the date of the collision, and the ship in which he and others were interested was liable to its value at that date for the injury done, without reference to his claim. So by the collision the interest of the claimant attached, and dating from that event, the ship in which he was interested having been repaired, was put in bottomry by the master acting for all parties, and he would be bound by that transaction. (1) (1850) 7 Moo. P.C. 267.

In Currie v. McKnight (1), the decision in The Bold Buccleugh was approved and adopted.

Lord Halsbury L.C., referring to the circumstances under which the lien attaches, said in part (p. 101):- . . . the phrase that it must be the fault of the ship itself is not a mere figurative expression, but it imports, in my opinion, that the ship against which a maritime lien for damages is claimed is the instrument of mischief, and that in order to establish the liability of the ship itself to the maritime lien claimed some act of navigation of the ship itself should either mediately or immediately be the cause of the damage. Lord Watson said in part (p. 105):- The Bold Buccleugh, which was decided by the Judicial Committee of the Privy Council affirming the judgment of Dr. Lushington, is the earliest English authority which distinctly establishes the doctrine that in a case of actual collision between two ships, if one of them only is to blame, she must bear a maritime lien for the amount of the damage sustained by the other, which has priority, not only to the interest of her owner, but of her mortgagees.

The principle of that decision has been adopted in the American Courts; and in the Admiralty Court of England it has for nearly forty years been followed in a variety of cases in which lien for damage done by the ship has been preferred to claims for salvage and seamen's wages, and upon bottomry bonds.

Continuing, Lord Watson, after saying that The Bold Buccleugh was, in his opinion, properly decided, said (p. 106):- And in my opinion it is a reasonable and salutary rule that when a ship is so carelessly navigated as to occasion injury to other vessels which are free from blame, the owners of the injured craft should have a remedy against the corpus of the offending ship, and should not be restricted to a personal claim against her owners, who may have no substantial interest in her and may be without the means of making due compensation.

The other point as to which the learned judges of the Second Division were unanimous relates to the limits of the shipping rule which was followed in the case of The Bold Buccleugh. I think it is of the essence of the rule that the damage in respect of which a maritime lien is admitted must be either the direct result or the natural consequence of a wrongful act or manoeuvre of the ship to which it attaches.

Such an act or manoeuvre is necessarily due to the want of skill or negligence of the persons by whom the vessel is navigated; but it is, in the language of maritime law, attributed to the ship because the ship in their negligent or unskilful hands is the instrument which causes the damage. In The Ticonderoga (2), Dr. Lushington, while not referring to the decision in The Bold Buccleugh said that, if a vessel was chartered so that the owners have divested themselves of all authority over the vessel and that vessel does damage, those injured had by the maritime law of (1) [1897] A.C. 97.

Sw.

nations a remedy against the ship itself. He said further that, so far as he was aware, there was only one exception to this, that is, where a pilot was taken on board by com- V .

pulsion, being required, by the provisions of an Act of Parliament.

In The Lemington (1), Sir R. Phillimore, after hearing a lengthy argument in which the effect of The Bold Buccleugh was fully discussed, adopted the statement of the law by Dr. Lushington in The Ticonderoga.

In The Ripon City (2), Gorell Barnes J. reviewed the authorities, including The Parlement Belge (3), The Castlegate (4) and The Utopia (5), which are those principally relied upon in support of the contention of the respondent in the present case and -distinguished them. His conclusion in the matter reads as follows (p. 244):- In my opinion, this statement expresses the true principle to be deduced from The Bold Buccleugh and Currie v. M'Knight and should be applied in determining the present question.

Upon the evidence in this case there was a prima facie case of negligence against the charterers of the Scow AT & B No. 28 which was unanswered and she is liable for such damage as she occasioned when adrift in the booming ground.

I would accordingly dismiss the appeal as to the Scows Marpole II and E S M No. X, with costs, and allow the appeal as to the Scow AT & B No. 28 and direct a reference to the proper officer of the Exchequer Court to assess the damages. The appellant should have its costs throughout in respect of the claim -against the AT & B No. 28, including the costs of the reference.

J.:-A question of importance is raised by this appeal. The action arises out of damage done to a booming ground of the appellant by three "dumb barges". These are rectangular in form without motive power, without steering power and without crew.

They are towed by tugs from place to place.

In a day of rough weather B they broke or were let loose from their moorings in Vanet couver harbour and drifting into the booming ground did the damage complained of. One of the barges was under the supervision and control of a towing company for all uses of navigation.

Another was under a charter which placed the charterers in complete charge and responsibility. In the case of the third, the barge actually arrested was not that which did any mischief; there was a mistake in reading the name and although the ownership is the same it is not seriously contended that the action in rem can be maintained.

In the other cases, the question is whether such an action lies where the owner of the scows cannot be fixed with personal liability.

As a preliminary to that question, I think it desirable to review briefly the broad principles and rules of maritime law from which the rule applicable to the circumstances must be deduced. That law, constituting the customs of the sea enforced generally by the maritime states of Europe, conceived a voyaging ship to be a venture in which all interests, ownership, bond or other liens, cargo, wages and material, under the superintendence of the master, in many cases a part owner, were committed to the risks of the voyage.

Among them was that of collision and from the earliest times damage caused by negligent navigation resulting in collision gave rise to a lien against the offending vessel that took precedence over all existing interests. The lien was enforceable in an action in rem. Through that procedure the Court of Admiralty exercised a jurisdiction which dealt with ownership in an absolute sense and by its decree bound all persons and interests, foreign or domestic. The jurisdiction was limited obviously to the value of the res before the court and in the earlier proceedings, at least, even though the owner appeared, the limit of his responsibility was that of the interest which he intervened to protect.

There was always a jurisdiction exercised in personam but its basis was an assumed disciplinary authority. Later on this jurisdiction was extended until in the Dictator (1), Sir F. Jeune held that the court could make an order against the owner based on his personal -liability for the amount of damages beyond the value of the res. The action in rem was essentially different from & that in personam even when the vessel was seized by way of collateral attachment, and a judgment in personam did not preclude an action in rem, though there could be only one satisfaction for the total damages.

That seizure to enforce the lien was not analogous to the foreign attachment followed by the courts of the City of London seems self-evident when we consider the effect of the decree in the one case and of the judgment in the other: the courts of London had no jurisdiction in rem and what they exercised their authority against were the interests in the property attached 'of the persons over whom they possessed personal jurisdiction.

Since the ship and the freight were the assets to which all interests looked for recoupment, they were bound to those interests and the interests were bound to the assets. So we had and still have the lien, among 'others, for seamen's wages, of bottomry bonds, for salvage -and for collision, and their order of precedence is well established. The commercial conditions out of which these accepted customs grew are not difficult to visualize.

Ships from the most remote times have ploughed the known and the unknown seas. They were engaged in a commerce of what were then great 'distances and with peoples of foreign lands. There were no means of communication such as we now have and the risks which produced unexpected situations or emergencies were many. It can be seen to have been necessary by the nature of the ventures that the fullest authority be exercisable by the master for the benefit of the interests in his safekeeping.

This emphasized the notion -of the ship as a self-controlled agency, itself responsible for obligations bound up with its actions.

But not all the maritime nations accepted and in their courts enforced all of these customs according to their general formulation.

For instance, neither England nor the United States recognized the rule that the owner was liable only to the extent of the value of his ship and upon abandoning it discharged himself of liability; they enforced, though not at first in the Admiralty Court, in addition to the lien, the collateral personal responsibility arising from the rule of respondeat superior which the civil law had long before settled.

But the proceedings in rem in the Court of Admiralty did not differ in character or underlying basis from those of other national courts enforcing maritime law. Then again, England did not recognize the lien of the material man, nor that for the wages of the master nor for his disbursements.

These were modifications in the general maritime law made not because of any incompatibility with municipal law but because of their supposed inconsistency with the general principles of the law merchant: The Henrich Bjdrn (1), Lord Watson, at 279. In a number of instances Parliament has intervened to restore in whole or part the maritime law, as in the cases of limitation of liability and of liens for wages and disbursements of the master. But these qualifications and subsequent modifications were of rules which clustered around the general idea of a vessel and its embodiment of interests and cargo as a subject of rights, duties and liabilities.

This basic conception is, in large measure, implied in the judgment of the Judicial Committee in the Bold Buccleuch (2).

In that case there had been a collision between two vessels in the river Humber.

The offending vessel sailed before a warrant of arrest could be executed. An action in personam was commenced in Scotland and the vessel there arrested on attachment. Subsequently she was taken in England under proceedings in rem. It was held, first, that the plea of lis alibi pendens was bad since the two actions were essentially different, and secondly, that upon the damage occurring from the collision a lien arose which was good against a subsequent purchaser in good faith. The Committee, speaking through Sir John Jervis, used language which is too precise to admit of any doubt in meaning.

Dealing with the argument that the arrest of a vessel in Admiralty is only a means of compelling the appearance of the owner he said:- It is admitted that the Court of Admiralty has jurisdiction in a case of collision by a proceeding in rem against the ship itself; but it is said that the arrest of the vessel is only a means of compelling the appearance of the owners . .

. In the Johann Friederich (1 W. Rob. Dr. Lushington is reported to have said that proceedings in rem in the RadJ.

Court of Admiralty were analogous to those by foreign attachment in n

J the courts of the City of London.

For the purpose for which that a'llusion was made, viz., the liability of the property of foreigners to be arrested by process out of the Court of Admiralty and the courts of the City of London, the two proceedings may be analogous, but in other respects they are altogether different. The foreign attachment is founded upon a plaint against the principal debtor, and must be returned nihil before any step can be taken against the garnishee; the proceeding in rem, whether for wages, salvage, collision, or on bottomry, goes against the ship in the first instance.

In the former case, the proceedings are in personam, in the latter they are in rem. . . . maritime lien is the foundation of the proceeding in rem, a process to make perfect a right inchoate from the moment the lien attaches; and whilst it must be admitted that where such a lien exists, a proceeding in rem may be had, it will be found to be equally true that in all cases where a proceeding in rem is the proper course, there a maritime lien exists which gives a privilege or claim upon the thing to be carried into effect by legal process.

Speaking of the case of The Aline (1), in which there was a bottomry bond before and after the collision, and in which the court had held that the lien for damage is to be preferred to the first bondholder, he observed: The interest of the first bondholder taking effect from the period when his lien attached, he was, so to speak, a part owner in interest at the date of the collision, and the ship in which he and others were interested was liable to its value at that date for the injury done, without reference to his claim. So by the collision the interest of the claimant attached, and dating from that event, the ship in which he was interested having been repaired, was put in bottomry by the master acting for all parties, and he would be bound by that transaction.

This judgment was approved and followed by the House of Lords in Currie v. M'Knight (2).

The general statement is to be deduced -also from two judgments of Ware J. of the United States District Court. In The Brig Spartan (3), in which it was held that seamen have a lien for wages against freight, assuming that the (1) (1839) 1 Wm. Rob. 111;

(2) [18971 A.C. 97.

166 E.R. 514.

(3) (1828) Ware 130.

lien extended to the vessel, and in The Rebecca (1), in which a lien against the vessel for supplies was maintained, full references are made to the early law. Elaborating the mos conception of the total interests being responsible for the incidents of the venture, and -after observing,

TSESH In the jurisprudence of The Consulate, in addition to the direct liability of the master himself, the vessel was tacitly hypothecated for the obligations contracted by him, both ex contractu and ex delicto, but there resulted from either no personal liability on the owners.

he quotes, in The Rebecca, at p. 195, from Consulate de la Mer (Boucher's Translation) cap. 72.

In all damages which are here and shall be mentioned in the chapters of the sea, the master supports his part of what the ship pays, and each part owner his part, for the ship pays the whole.

The rule of abandonment of the ship by the owners was recognized in Sweden, Hamburg and generally throughout northern Europe, but not in England: there, under the rule of respondeat superior, the liability in personam ran parallel to the lien, although, as I have already remarked, it was not originally enforced in the Admiralty Court. The Ordonnance de la Marine provided that:- The proprietors of vessels shall be responsible for the acts of the master, but they shall be discharged by abandoning the ship and freight. to which Ware J. adds:- And this article is merely a confirmance of the pre-existing law (p. 196).

The same statement is said to appear in Pardessus, Collection des Lois Maritimes, Vol. 2, p. 235 and in The Phebe (2), at p. 272 he remarks:- He (the master) was the agent or representative of the other owners, only so far as they had confided their capital to his administration. If the vessel was lost before the creditors were paid, they had no remedy except against the master.

The other part owners were discharged from all responsibility . . . The master could not, therefore, in the proper sense of the word, bind the owners, personally, at all, because they could always withdraw themselves from their personal responsibility by abandoning the ship and freight.

Further on at p. 272 he says:- It was for this reason that Emerigon, whose mind was deeply imbued with the maritime traditions of the middle ages, says that the liability of the owners to answer for the acts of the master is rather real than personal.

The legal power of the captain, says he, does not extend (1) Ware at

Ware beyond the limits of the vessel of which he is master, that is, administrator. He cannot bind the other property of the owner, unless he have JoHnSON a special power for that purpose.

and finally:- THE SHIP

Thus we find, when the principle is traced back to its source, that it AToB is by no means correct to say that the liability of the vessel is merely collateral or accessory to that of the owner.

On the contrary, in the origin of the custom the primary liability was upon the vessel, and that of the owner was not personal but merely incidental to his ownership, from which he was discharged either by the loss of the vessel or by abandoning it to the creditor.

The law -administered in the Admiralty court is the law of the sea unless municipal legislation expressly applicable, or the limitations placed upon the Court of Admiralty in the early days by the common law courts, or the general principles of the law merchant conflict with it. In Nostra Signora de los Dolores (1), where it was held that an Act of Parliament requiring the name of the owner of a vessel to appear on the register did not apply to a claim by a foreigner for wrongful seizure under letters of marque against an owner whose name did not so appear, Lord Stowell said:- But I am yet to learn that this rule of law is applicable to foreigners, who are not bound by the municipal regulations of this country. This is a question of the law of nations; and the party complainant, being a foreigner, comes to a court which has to administer that law. Similarly in the case of the Carl Johan mentioned in the judgment of Sir John Nicholl in the Girolamo (2). In a claim against the vessel for collision, she was condemned 'and the amount referred to the registrar for determination. There was an objection to the registrar's report on the ground that the amount of the damage exceeded the value of the ship -and freight contrary to 53 Geo. III, c. 159, s. 1 which provided for the limitation of damages.

On this question, Lord Stowell held:- That the new rule introduced by the 52 Geo. III was one of domestic policy and that with reference to foreign vessels, it only applied -in cases where the advantages and disadvantages of such a rule were common to them and to British vessels; that if all states adopted the same rule, there would be no difficulty, but that no such general mutuality was alleged; that if the law of Sweden adopted such a rule it would apply to both countries, but that Sweden could not claim the protection of that statute without affording a similar protection to British subjects in similar cases.

(1) (1813)

1 Dodds 290;

(2) (1834)

3 Hagg 169 at 186; E.R. 1315.

166 E.R. 368 at 375. In this background, then, the question here lends itself to a more confident determination.

In three English GOODWIN decisions it has been held that the lien arises when the damage occurs while the ship is under charter or its equi- THE SHn' valent. There is, first, The Ticonderoga (1).

In that case, decided in 1857, an American ship was under a demise charter to the government of France during the Crimean war; in course of being towed by a steamer which she was directed to employ, across the hawse of H.M.S. "Melampus", considerable damage was done the latter, and Dr. Lushington held the fact of being chartered to be no defence by the owner. In the course of the judgment he says:- We must recollect that this is a proceeding in rem. I am not aware, where there has been any proceeding in rem, and the vessel so proceeded against has been clearly guilty of damage, that any attempt has been made in this court to deprive the party complaining of the right he has by the maritime law of the world of proceeding against the property itself. . . . Let us see what cases there are in which the Court does not hold a vessel responsible for the damage done.

There is one case and one only that I am aware of, and that is where a pilot is taken on board by compulsion . . . What species of compulsion is it which is averred on behalf of this Imerican vessel that is to relieve her from the responsibility which the maritime law of the world attaches to the wrongdoer?-Entering into a stipulation with the French government. It 'is impossible to contend that because a person has entered into a voluntary contract by which he is finally led into mischief, that that can relieve him from making good the damage he has done.

In The Ruby Queen (2), the same judge held the ship liable though its control had been handed over to agents for sale who had left it improperly moored. These persons, it was contended by the defendant, were independent contractors; but that question with its consequences was not argued because the ground was not taken in the plea; and the reference to the merits is so cursory that its -authority is, at least, doubtful.

In the Lemington (3), the defendant owner pleaded a charter by demise. A motion to reject the plea was, after a most elaborate argument, allowed by Sir Robert Phillimore, who, in the course of his reasons and after quoting the foregoing passage from the Ticonderoga says:- It is true that in The Druid Dr. Lushington said, "The liability of the ship and the responsibility of the owners are convertible terms, the ship is not liable if the owners are not responsible.

And vice versa no (1) (1857) Swab. 215; 166 E.R. 1103.

(2) (1861) Lush. 266; 167 E.R. 119. (3) (1874)

2 Asp. M.L.C. 475.

responsibility can attach upon the owners if the ship is exempt and not 1-liable to be proceeded against"; in that case, however, it should be remembered that the learned judge was dealing with damage done by the ship through the act of a mere servant or agent acting not only without authority but unlawfully.

And moreover the true interpretation SHIP of the general proposition of law there laid down depends very much upon the sense in which the word "Owners" is used.

A vessel placed by its real owners wholly in the control of charterers or hirers, and employed by the latter for the lawful purposes of the hiring, is held by the charterers as pro hac vice owners . . . Vessels suffering damage from a chartered ship are entitled prima facie to a maritime lien upon that ship and look to the res as security for restitution. I canot see how the owners of the res can take away that security by having temporarily transferred the possession to third parties.

In the Tasmania (1), a tow was damaged by its tug. The latter was chartered on terms that the charterer would be liable for all damages. The contract of towage provided that the tug would not be liable for damage to the tow caused by negligence.

On these facts, Sir J. Hannen held that no lien attached. After repeating the passage from the Ticonderoga, already mentioned, he adds:- There is nothing in this judgment which leads to the conclusion that Dr. Lushington intended to retract what he had said in The Druid. It amounts only to this, that he thought that 'Whatever might be the case at common law, by the maritime law of nations, charterers to whom the government of the ship is voluntarily handed over, represent the owners so as to bind the ship in cases of collision, and the generality of his remarks must be controlled by the particular circumstances of the case before him . . . The result of the authorities cited appears to me to be this, that the maritime lien resulting from collision is not absolute. It is a prima facie liability of the ship, which may be rebutted by showing that the injury was done by the act of some one navigating the ship not deriving his authority from the owners; and that, by the maritime law, charterers, in whom the control of the ship has been vested by the owners, are deemed to have derived their authority from the owners so as to make the ship liable for the negligence of the charterers who are pro hac vice owners.

Against these authorities are dicta in three cases, the Parlement Belge (2), the Castlegate (3), and the Utopia The first decided that a public vessel belonging to the Belgian Souvereign was not subject to the jurisdiction of the English Court of Admiralty, but in the course of dealing with the contention that the owner in that case was not directly or indirectly implicated by proceedings in rem against the ship Brett L. J. said:- *

In a claim made in respect of a collision, the property is not treated as the delinquent per se. Though the ship has been in collision and has (1) (1888) 13 P.D. 110.

(3) [18931 A.C. 38 at 52. (2) (1880) 5 P.D. 197.

(4) [1893] A.C. 492 at 499. In the Castlegate the question was whether a 'lien arose el under the Merchant Shipping Act of 1889 for disbursements for which the master had no -authority to pledge the owners' credit, and it was held that it did not. In the course of his speech, Lord Watson, alluding to the argument that the case of lien for damages by collision furnished another exception to the general rule that a maritime lien must have its root in the personal liability of the owner, refers to the judgment of Dr. Lushington in the Druid and to what was said in the Parlement Belge. As has been seen, the language of Dr. Lushington in the Druid had already been explained by Sir J. Hannen in the Tasmania, and it lends itself certainly without difficulty to the interpretation there given.

In the Utopia the Judicial Committee dealt with the case of a wreck in the harbour of Gibraltar which had been taken over by the port authority but which, owing to inadequate lighting, had been the cause of damage to a ship navigating in its vicinity. It was held that neither the wreck nor the owners were liable for the collision. The control and management had been legitimately transferred by the owners to the port authority, acting within the apparent scope of its powers, and in the absence of negligence by the owners no maritime lien arose. Answering the contention that as the action was in rem the ship might be held liable without liability of the owners, Sir Frances Jeune said:and he adds a reference to the dictum in the Castlegate which I have mentioned.

But I think it clear that his observations, so far as they may be extended to the question before us, were obiter. That the entire control and management had been delivered out of the hands of the owners is assumed; the port authority was acting in its public capacity, given by law, in accordance with its regulations and in the performance of its public duty. To this scope of action the owner was a stranger: there was no & commitment of his interest to a person upon whom he could place contractual obligations: when the wreck was RadJ. handed over, a new control, not derived through him, arose. It is undoubtedly the case that in the generality of collisions the guilty persons are servants of the owner, and it is clear that the remarks of the judges whom I have quoted were addressed to that ordinary situation. The very distinction drawn by Brett L. J. in citing the case of the compulsory pilot indicates that he had not in mind the situation where the control of the vessel is by agreement entrusted to another for services from which the owner as well as the charterer is to benefit, a means of profiting from the operations of the vessel preferred by the owner to that of engaging in those operations himself. Neither the Ticonderoga nor the Lemington is mentioned in the Castlegate or the Utopia judgments, a circumstance which it is difficult to assume would have happened if the intention to dissent from them had been intended. The settled scope of the collision lien confirms this view. In the Elin (1), the lien, in the case of a foreign ship, was held to be superior to all other existing liens, as well as those of seamen's wages earned after the collision; and the statement of 30 Halsbury, 956, of the law on this point is, to the same effect.

Concluding this consideration of the English authorities, one decision remains: The Ripon City (2).

The question involved was the right to a statutory lien by the master for disbursements on account of the ship where the vessel was under a demise charter which provided that the particular supplies involved were to be furnished by the charterers. The case came before Gorell Barnes J., whose competence in matters of this nature was universally acknowledged. After a review of the cases mentioned, at p. 239 he states his view of the law in this language:appear to confer, upon the classes who now possess it, what we call a maritime lien, yet the principles of maritime law in relation thereto have possibly been developed to a large extent from the rules of the civil law: see the learned judgment of Curtis J. in The Young Mechanic, (1). So far as I can trace the origin of the modern doctrines on the subject of maritime liens, it is not so difficult to follow this development in THE cases arising out of contractual relations between the parties as it is in cases of injuries done to vessels.

After mentioning the theory of Holmes J. which traces the source of lien to the ancient law of deodand, and the views expressed by Mr. Marsden that liens had sprung from a practice of arrest to compel appearance and security, which the Bold Buccleuch (supra) had rejected, and reviewing the exhaustive judgment of Sir Francis Jeune in the Dictator (supra), he proceeds to his conclusion:- The law now recognizes maritime liens in certain classes of claims, the principal being bottomry, salvage, wages, masters' wages, disbursements and liabilities, and damage. . . . It is a right acquired by one over a thing belonging to another, a jus in re aliena. It is, so to speak, a subtraction from the absolute property of the owner in the thing. This right must, therefore, in some way have been derived from the owner either directly or through the acts of persons deriving their authority from the owner.

The person who has acquired the right cannot be deprived of it by alienation of the thing by the owner. It does not follow that a right to a personal claim against the owner of the res always exists with a right against the res. The right against the res may be conferred on such terms or in such circumstances that a person acquiring that right obtains the security of the res alone, and no rights against the owner thereof personally.

A simple illustration of this is the case of bottomry.

After referring to the Ticonderoga, supra, the Lemington, supra, and the Ruby Queen, supra, he says:- Again, a mortgagee of a vessel is the owner of an interest in the vessel, and if he leaves the mortgagor in possession, his interest will become subjected to maritime liens arising in the course of the employment of the vessel, although he is not personally liable for the claims in respect of which the liens arise.

Finally, he states the principle:- The principle upon which owners have handed over the possession and control of a vessel to charterers, and upon which mortgagees and others interested in her who have allowed the owners to remain in possession are liable to have their property taken to satisfy claims in respect of matters which give rise to maritime liens, may, in my opinion, be deduced from the general principles I have above stated and thus expressed.

As maritime liens are recognized by law, persons who are allowed by those interested in a vessel to have possession of her for the purpose of using or employing her in the ordinary manner, must be (1) (1855) 2 Curt. C.C. 404.

87579-31

This presumed authority is the converse expression of the view of venture in which all interests were put at the common risks under commitment to the administration of the master.

From the beginning that has been the accepted principle in the Supreme Court of the United States. In the Barnstable (1), Brown J., delivering the opinion of the court, says at p. 467:- In the Eugene F. Moran (2), the court, speaking through Holmes J., held that where two tugs and two scows in tow of one of them were -all at fault in a collision, each was liable for an equal share of the -damage although both scows were owned by one person, on the principle that each vessel must contribute regardless of ownership. From all of this I see no reason to reject the considered judgments of such eminent Admiralty judges as Dr. Lushington and Sir Robert Phillimore. The dicta to the contrary, as in most cases of dicta, are contained in general statements employed in the determination of the other questions of law or statutory interpretation to which they are relevant but in the application of which the special instances of the general proposition are not significant. The actual decisions place the risks of the solvency of the charterer on the owner; the dicta would place them on the victims of the charterer and the owner goes free. As a consideration or principle of maritime commercial law, keeping in mind the degree to which it is in large measure a law concerned with a commerce between peoples of foreign states, I am unable to appreciate the legal propriety of a rule that would bring about such a result.

But for the conclusion at which I have arrived, I cannot see the necessity for any such conception as that of the ship's being deemed to 'be a legal person. The oldest understanding of the position of the ship, adverted to in the cases mentioned, is, in my opinion, the soundest because, certainly in the early days and to a great extent even & B today, there is present the idea of venture and risk and ta. that all of the interests in the vessel face them under the administration of the master. His absolute authority on board ship derives from that conception. So long as there is the voluntary entrustment of interests to the administrator -or person in complete control of the vessel, what that vessel -does through its fault to damage another is chargeable against those interests, and only when there is a breach in authority from the owner can they claim exemption.

There remains the third case in which the barge was unmoored and then left unattended by -a towing company acting as an independent contractor.

It is clearly established that where such a barge is in tow of 'a tug and is brought into collision, the tug alone is liable. This is the ground that the barge is a wholly passive instrument in the hands of the tug 'and that the collision is solely the act of the latter.

When the barge, negligently left unmoored, 'drifts into collision is it likewise such an act of the tug? The work of towing is an ordinary marine operation with no special risk or danger to others such as would create a continuing duty in the owner toward 'anyone who might be damaged in the course of it. That operation here included the unmooring of the barge and once it was undertaken, the liability for damage done in the course of it became that of the 'contractor only. The barge does not cease to be passive when allowed to drift, and I am unable in principle to distinguish between such a situation and that of damage done in the course of towage.

In each case the negligent direction to the barge is the work of the towing contractor. The distinction between the char-. terers and the contractor in its result may appear to be a bit unreal; but the law of the independent contractor, though it has been whittled away in a substantial degree by the conception of duty running from the owner to the victim, retains a residue of validity in the taking of ordinary measures or services which toward the person -damaged are indifferent as to the actor in them, and in relation to which the balance of policy would appear to be against extending the liability of the owner. In addition TE there is here both the special character of the "dumb" & barge which gives added weight to the general consideraa tions, and the fact that there is no such commitment of J. interest as is present in the case of the charterer.

would accordingly dismiss the appeal as to the Scows Marpole II and E S M No. X, with costs, and allow the appeal as to the Scow AT & B No. 28 and direct a reference to the proper officer of the Exchequer Court to assess the 'damages. The appellant should have its costs throughout in respect of the claim against the AT & B No. 28, including the costs of the reference.

:

J.:-On December 2, 1949, damage was done to the booming ground of the appellant in Vancouver Harbour by three dumb barges.

On November 28, 1951 the appellant took proceedings in rem in the British Columbia Admiralty Division to enforce a maritime lien against each of the respondent vessels.

The action was tried before the Honourable Mr. Justice Sydney Smith, District Judge in Admiralty, and was dismissed with costs. It is necessary to consider each claim separately. The proceedings against the respondent Marpole II were taken in error. Damage was done not by Marpole II but by Marpole XI another barge belonging to the same owners. For the reasons given by the learned trial judge I agree with his conclusion that the action against Marpole II fails.

The E S M No. X was owned by Canadian Forest Products Ltd. who had a contract with Gulf of Georgia Towing Co. Ltd. to perform towage services as required.

On the morning of December 2, 1949 the tug Goblin, owned by the last mentioned company, proceeded to a scow pool in Vancouver Harbour at which the E S M No. X was moored to tow her, pursuant to her owners' instructions, to another location. The finding of the learned trial judge that the Towing Company was acting as an independent contractor and that the relationship of master and servant did not exist between the owners of the barge and the Towing Company is fully supported by the evidence and indeed was not questioned before us. The engineer of the Goblin cast off the mooring lines of the E S M No. X and was about to make fast the tug's towing hawser when the & B Master of the tug abandoned the E S M No. X for the al. purpose of towing another scow which was loaded with ties and which he saw drifting in the harbour.

So abandoned, the E S M No. X, having no motive power and no means of steering, drifted into the appellant's booming ground with the Goblin's engineer on board.

It is clear from this brief sununary of the facts that the negligence causing the damage done by the E S M No. X was solely that of the Master of the tug and the servants of the tug's owners. The barge was thus in the position of an innocent tow which is the instrument of damage caused by the negligence of the vessel towing her. The judgment in The Quickstep (1), a decision of Sir James Hannen and Butt J., delivered by the 14tter, appears to be conclusive against the appellant. This judgment was approved in The Seacombe, The Devonshire (2), affirmed sub nom s.s. Devonshire (Owners) v. Barge Leslie (Owners) (3).

In the last mentioned case Fletcher Moulton L. J., referring to the towing of barges or other craft of like kind, said, at pages 49 and 50:- This statement was quoted with approval in this Court in The Ship Robert J. Paisley v. Canada Steamship Lines Ltd. (4) (reversed on the facts sub nom Richardson v. Robert J. Paisley) (5).

The fact that the barge E S M No. X was not actually being towed at the moment of doing the damage cannot, I think, have any effect on the question of liability. She was in the control of the tug and, in principle, I find no difference, relevant to the question of responsibility, & between towing her negligently and negligently setting her adrift in the course of carrying out the contract to tow her .

across the harbour.

I agree with the learned trial judge that the claim against the E S M No. X fails.

The AT & B No. 28 was, at all relevant times, owned by one Aitkin 'and -chartered by way of demise to Vancouver Tug Boat Co. Ltd. I agree with the learned trial judge that her owner Aitkin was not personally liable for the damage done by her. In my opinion the proper finding on the somewhat scanty evidence is that the charterer, Vancouver Tug Boat Co. Ltd., was guilty of negligence causing the damage done to the appellant's booming ground by this barge.

At a time wljen she was under the charterer's sole control she drifted unattended into the booming-ground and it has offered no explanation of this; res ipsa loquitur.

The question is whether the appellant has a maritime lien on the barge AT & B for the damage done by her when the personal liability for the negligence causing such damage rests not 'upon her owner but upon her charterer by way of demise.

I 'agree with my brothers Rand and Locke that the answer to this question should be in the affirmative and I am in general agreement with the reasons which bring them to that conclusion.

In my view the conflict between the statement of Brett L.J. in The Parlement Belge (1), quoted by my brother Rand, and which was approved by Lord Watson in The Castlegate (2) and by Sir Francis Jeune in The Utopia (3), on the one hand, 'and the statements of Dr. Lushington in The Ticonderoga (4), of Sir Robert Phillimore in The Lemington (5) and of Gorell Barnes J. in The Ripon City (6), all also quoted by my brother Rand, on the other hand. is apparent rather than real. The statements mentioned, when sought to be related to a claim for a maritime lien on a vessel causing damage, can be reconciled by reading the expression "owner" as used in such phrases as, "the liability to compensate must be fixed, not merely on the property, but also on the owner through the property", as & B including "charterer by way of demise".

To so construe it would be in accordance with the judgment of the House of Lords delivered by Lord Tenterden in Colvin v. Newberry and Benson (1) in which he speaks of "the person to whom the absolute owner has chartered the ship, and who is considered the 'owner pro tempore, during the voyage for which the ship is chartered".

It may be observed also that in Jackson (Sir John) Ltd. v. Blanche (owners) (2), the House of Lords decided -that the charterer of a ship by way of demise who has control over her and navigates her by his own Master and crew is "owner" of the ship within ss. 503 and 504 of the Merchant Shipping Act, 1894, and entitled to the limitation 'of liability to damages conferred upon "owners" by those sections. In The Utopia no question arose as to whether the charterer of a ship by way of demise is to be regarded as owner pro tempore or owner pro hac vice so that negligence in 'the navigation of such ship for which the charterer is liable will subject the ship to a maritime lien for damage caused by such negligence. I would dismiss the appeal as to Barges Marpole II and E S M No. X with costs. I would allow the appeal as to Barge AT & B No. 28 and direct a reference to the proper officer of the Exchequer Court to assess the damages. Such damages will, of course, be limited to the damage done by the AT & B No. 28 herself. The appellant will be entitled to its costs of such reference and to its costs in this Court and in the Exchequer Court in so far as the claim against the AT & B No. 28 is concerned.

Appeal dismissed as to Scow Marpole II and Scow E S M No. X and allowed as to Scow AT & B No. 28.