34 EXCHEQUER COURT REPORTS. [VOL. VIL • 1901 TORONTO ADMIRALTY DISTRICT. Jan. 23. THE ROCHESTER & PITTSBURG COAL AND IRON COMPANY...... IPLAINTIFFS ; AGAINST THE SHIP " THE GARDEN CITY." (THOMAS NIHAN—REGISTERED OWNER.) Action for necessaries—Meaning of word owner'—' Domicile.' An action in rem for necessaries will not lie against a ship if supplied to a charterer, who also engages the crew, in a port other than her home port, if it is shown at the time the writ issued an owner • or part owner was domiciled in Canada. The Admiralty Act of 1861, sec. 5 (Imp.) enacts : "That the High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales." By the Colonial Courts of Admiralty Act, 1890, and the Canada Admiralty Act, 1891, the Admiralty Act of 1861 (Imp.) is brought into force in Canada. Held, That the word owner' used in sec. 5 of the Admiralty Act of 1861, means `registered owner' or a person entitled to be registered as owner, and not a pro h1Ec vice owner. The word `Canada' is to be read in the place of `England and Wales.' The word ` domicile' must be understood in the ordinary legal sense. Semble, That wherever a maritime lien is created in favour of any one against the ship, it is not essential to further establish personal liability against the owner. THIS was a motion made by the owner of the ship to set aside the Writ of Summons and all proceedings herein, on the ground of want of jurisdiction, this being an action for necessaries, and an owner of the ship resident in the Province of Ontario.
VOL VII.] EXCHEQUER COURT REPORTS. 35 The motion came on for argument on the 6th day of 1901 July, 1900. T H. T. Wright, for owner of ship, cited the follow- R TEB & - TRx & ing cases in support of motion : Dean v. Hogg (1) ; PITTBBURa CROL AND Fletcher v. Braddick { ~ 2 ~ Cox v. Reid 3 ( ~ ; ~ Harder V. IRON Co. Brolherstone (4) ; The Aneroid (5) ; Lucas v. Nockells (6) ; TELE V . EIIP The Pacific (7) ; The Two Ellens (8) ; The Druid (9). THE GAR- DEN CITY. T. Mulvey for plaintiffs: Argument The only point in question on the pending motion is orcounael. the interpretation of sec. 5 of 25 Vict, c. 10 (Imp.), worded as follows : "The High Court of Admiralty shall have jurisdiction for any claims for necessaries supplied to any ship elsewhere than in. the port to which the ship belongs, unless it is shown to the satisfaction of the court that :at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Pales." The defendant contends that the words ` any owner ,or part owner of the ship' relate to the immediately preceding words ' at the time of institution of the cause,' and the interpretation to be placed on the section is that irrespective of the ownership of the ship -at the time the necessaries are purchased, that if any • owner is resident within the jurisdiction at the time the action is commenced the court has no jurisdiction. On the other hand the plaintiff contends that the words` any owner or part owner of the ship' refer to the owner at the time the necessaries were purchased and if no owner orr part owner was resident within ,jurisdiction at the time the action was instituted, then -.the court has jurisdiction. { 1) 10 Bing. 345. : (5) 2 P. D. 189. (2) 2 B. & P. (N. R) 182. (6) 4 Bing. 729. (3) 1 C. & P. 602. (7) Br. & Lush 243. (4) 4 Campb. 254. (8) L. R. 4 P. C. 161. (9) 1 Wm. Rob.. 391. 332
36 EXCHEQUER COURT REPORTS. [VOL. VIL 1901 It is not contended by the plaintiff here that they T have a maritime lien upon the vessel. They claim ROCHES- mere y l a rig ~ ht in rem under sec. 35 of . the .Act of 1861. TER & PITTSBURG First : In support of the plaintiff's contention that C L IR AN Co. t he words ' owner or part owner of the ship ' relate to ° .the ownership at the time the necessaries were sup THE SHIP THE GAR- plied, it is submitted that this interpretation must be , DEN CITY, placed upon the section, otherwise one of the most o A Y r C g o u u m nsel n t. impoorrttant objects of the section would be frustrated. - At common law no action can be maintained except under contract or one made through their agents. authorized for that purpose. The master is, of course,. such an agent, and if the master orders, the owners are liable. If the vessel should be sold there would be no claim against the purchaser because it is assumed, that the master who made the purchase was not the master employed by the owner at the time the necessaries were supplied. In this case there can be no claim against Nihau, because under the charterparty it is expressly provided that the master was not his. servant but the servant of the charterer. The object of the section is to give a right in rem where on account of the bankruptcy or absence from the jurisdiction of the owner no effective remedy can be given at common. law. In support of this contention the following-cases are submitted : The Ella A. Clark (1) ; The Pacific (2). In the case last cited, Dr. Lushington, in short (considering 25 Viet. c. 10, s. 5) says that the remedy against the ship is given only when a personal action against the owner would be fruitless, and not even then where the supply is to be assumed to have been made on his personal credit. The next point for consideration is the meaning of the phrase ' owner or part owner' where it appears in. (1) B. & Lush 32. (2) B. & Lush. 243.
VOL. VII.] EXCHEQUER COURT REPORTS. • 37 the section. It is submitted that this is a case of locatio 1901 navis, It is true that the owner under the charter- THE party had the right to select and appoint the captain TE TE T R I ~t : - and chief' engineer. See clause 2 of charterparty. ITTSBURG But by clause 5 it was provided that notwithstanding IRONL n the right of the owner to appoint the captain and chief THES HIP engineer, they, with the crew, were to. be under T HE t AR-the order and control solely.of the charterer and not DEN CITY. deemed the employees or servants of the owner. Lord A rgument o f Conneel, Tenterden in the 5th ed. of Abbott on Shipping, laid down the following rules for ascertaining in whose possession a vessel may properly•be said to be. They are ' " 1. That although by the language of the charter-party it may be expressed that the owner or master lets the ship to freight, this phrase does not necessarily import that the possession of the ship is given up to and taken by the charterer. " 2. That it must depend on the terms of the instru- ment taken altogether, and • " 3. Upon the purpose and objects of it. (1) • These rules are laid down in considering claims of the owner for a lien for freight. There is no lien where the possession of the ship passed to the charterer. Hutton v. Bragg (.2) was .decided upon consideration of the nature of a lien,. as being a right to detain, something of which the party claiming the right has already the possession ; and as the entire ship was left to freight, • the merchant charterer {who became bankrupt) was considered to be the owner pro tempore and the goods on board to be in his possession, not in the possession of the owner who had let out the ship. This case was considered in Dean v. Hogg (3), and the above rules 2 and 3 are the proper means of ascertain- (1) See Abbott on Shipping, 13th (2) 7 Taunt.. 14. -. ed. p. 246. _ (3) ..10 Bing. 345.
38 EXCHEQUER COURT REPORTS. (VOL. VIP.. 1901 ing the law. (See also Belcher y. Capper (1) ; Trinity T~ House y. Clark (2) ; Saville y. Campion (8). ROCHES- TER & The charterparty in the latter case expressly gives PITTSBURG the full control of the vessel to the charterer, and it is COAL AN IRON Co. submitted that this case so far as the possession is con- y. THE cerned is on all fours. Baumwoll Manufactur v. Fur- SHIP THE GAR- ness (4) ; The Tasmania (5). DEN CITY. Referring to the case, cited on behalf of the defend- of ant, of Dean v. Hogg (6), it is submitted that this case is not in point. The owner's captain was not the owner's servant here. The captain was expressly declared to be the servant of the charterer. Fletcher v. Braddick (7). 77ze Tasmania (8) is a more recent and more satisfactory authority upon the questions raised in this case. Cox v. Reid (9) ; and Harder y. Brothersione (10) raises questions of contract which are not raised in this motion, and add no light whatever to the discussion of the subject in hand. The Aneroid (11). It is not contended that the plaintiff has a maritime lien. They have a right in rem under sec. 35 of the Act of 1861. As to Lucas v. Nockells (12), this case creates no difficulty. In Baumwoll Manufactur v. Furness (18), Lord Hers-chell, says as follows : " The person who has the absolute right of the ship, who is the registered owner, the owner, (to borrow an expression from real property law) in fee simple, may properly be spoken of, no doubt, as the owner, but, at the same time, he may have so dealt with the vessel as to have given all (1) 11 L. J. C. P. (N. S.) 274. (7) 2 B. & P. (N.R.) 182. (2) 4 M. & S. 288. (8) 13 P. D. 110. (3) 2 B. & Ald. 503. (9) 1 C. & P. 602. (4) [1893] A. C. 8. (10) 4 Camp. 254. (5) 13 P. D. 110. (11) 2 P. D. 189. (6) 10 Bing. 345. (12) 4 Bing. 729. (13) [1893] A. C. at p. 17.
VOL. VII.] EXCHEQUER COURT REPORTS. 39 right of ownership for a. limited time to some other 1901 person who may equally be spoken of as the owner. T Similarly under real property law, the lessee as well as. Roo T H ER E & s - the lessor has the right to maintain an action for PITTSBURG COAL AND tree P a ss. IRON CO. As to The Pacific (1) and The Two Ellens (2), these V. THE SHIP cases merely decide that a claim for necessaries does THE GAR-not give a maritime lien, audit is not contended here DEN CITY. that they do. Reeve v. Davis (3). The charterer in g ;. this case was also the master. Littledale, J. said : "The rule is that 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 passed." This case is considered in Abbott on Shipping (4) as a case of locatio navis. As to The Druid (5) this case does not give a complete statement of the law. as decided. in subsequent cases. It is considered, and this point is developed, in The Tasmania (6). See also Colvin v. Newberry (7). H. J. Wright, in reply : The words of the statute 24 Viet. chap. 10, (Imp.) sec. 5, (on which the defendant relies) are so explicit that no room whatever is left for argument as to their meaning. My learned friend has failed to cite any cases bearing on that section, while he tries to dismiss (1) B. & Lush. 243. (5) 1. Win. Rob. 391. (2) L. R. 4 P. C. 161. (6) 13 P. D. 110. (3) 1 A. & E. at p. 315. (7) 7 Bing. 190 ; 33 Rev. Reporta (4) P. 59, 13 ed 437.
40 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 the cases cited on behalf of the defendant by the THE broad contention that they do not apply, giving no ROCH E sufficient reason for such contention. I submit that T ER PITTSBURG the point resolves itself into the meaning of the word IRAN AND IRON CO, owner ~ ' and mylearned friend is seeking to give it v. a meaning which it cannot possibly bear within the THE SHIP THE GAR- contemplation of the statute, otherwise the words of DEN CITY . the statute would have been extended. The word ArguMent ` ofCouner. . owner' means either the ` registered owner' or the ` real owner.' Thomas Nihan, owner of The Garden City is both. The charterer, who, it is contended on behalf of the plaintiffs, was some sort of an. owner, is not and never was either registered or beneficial owner, and it would, I submit, be extending the meaning beyond all precedence to hold that the charterer was included in the w t,rd ' owner ' within the meaning of the statute. Apart altogether from this it is expressly contrary to the terms of the charterparty agreement for the charterer to render the boat in any way liable for the coal supplied ; and I ask that the plaintiffs' action be dismissed with costs as being without the jurisdiction of this court. MCDOUGALL, L. J. now (January 23rd, 1901) delivered judgment : This is an action in rem brought by the plaintiffs to recover the price of certain coal supplied. to The Garden City, at Buffalo, in June and August, 1896. The Garden City is a British ship, and during the summer of 1896 was chartered to one William P. Goodenough, of Buffalo, to ply between Buffalo and Crystal Beach, or Victoria, in. Canada ; the charterer to pay $5,000 for the season, and also to pay all expenses or outlay of every kind, including the wages of the crew, master and engineer, during the period of the charter. The charterer was to appoint and employ
'VOL. VII.] EXCHEQUER COURT. REPORTS. 41 the crew, except the master and. engineer,. who 'were 1901 to be appointed by the owner but paid by the char- T" terer, in other words the vessel, with all her appoint- RooHEB- TER& meats, was handed over at the beginning of the season PITTSBURG -to the charterer, and was to be redelivered by him to IRON Co. the owner, at Port Dalhousie, at its conclusion, free THE S HIP from any liens, charges, or claims whatsoever incurred. THE GAR- during the period unless the same had been- incurred DEN CITY. by the owner. It was also expressly stipulated that ôr the master and engineer, though appointed. • by the anagnans. 'owner of the ship, were not to be deemed in any sense the servants of the owner. During the season, and to enable the steamer to- make her trips, - the coal in question was supplied by the plaintiffs upon either the charterer's or the master's -orders. The charterer did not pay ; and the plaintiffs' now seek to make the ship liable for the same, claim- ing the right to an action in rem under 24 Vict. chap. 10 (Imp.) sec. 5 (Admiralty Act of 1861) which enacts, " that the High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied " to any ship elsewhere than in the port to which they " ship belongs, unless it is shown:to the satisfaction of ." the court that at the. time of the institution of the " cause any owner or part owner of-the ship is-domi- " cited in England or Wales." The owner- of The Garden City is domiciled at St. Catharines, in Ontario, within the Dominion of Canada,. and was so domiciled at the institution of -the present -action, the 8th June, 1900. • A great number of cases ,. were cited upon the argument of this motion to set -aside the writ of summons and service with a view . to indicate the application of this section of the statute to the facts of this case and also as to the meaning of the word. ' owner..' It was admitted for the plaintiffs that they did not possess .a. maritime lien ; and that
42 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 any right they did possess which would enable them T to bring the present action must depend upon the RoaH _ TER ôG construction to be placed on the above-cited section of PITTSBURG the Act of 1861. It . was not seriously contended that COAL CND o . the registered owner, Mr. Nihau, was in any sense v personally liable for the claim sued for. THE SHIP THE GAR-I find that the latest decision which deals with the. DEN CITY. whole matter, the judgment referring to nearly every asons Refor case theretofore decided, is The Ripon City (1). Judgment. That case determined that the master of the vessel appointed by persons who were not the real owners of the ship, but who had been allowed by the real owners to remain in possession and to have control of the vessel for the purpose of using her in an ordinary way, in the particular case, had a maritime lien on the ship for his disbursements and for liabilities properly incurred by him on account of the ship, although the owners of the ship may not have been personally liable for the disbursements or the matters in respect to which the liabilities had been incurred. The master was held entitled to recover against the ship the amount of certain bills which he had drawn upon the persons who had the control of the ship in favour of certain foreign coal merchants who had supplied the ship with coal to enable her to pursue her voyages. By force of this determination the coal merchants. recovered their claims, for the master, obtaining judgment against the ship for the amount of the drafts drawn by him upon his employers—which drafts had been dishonoured by them, they having become bankrupt—was enabled to pay the coal merchants and thus discharge himself from his personal liability to them on the drafts. The court held that the master had acquired a maritime lien upon the ship for these liabilities, notwith- (1) [1897] P. 22&
VOL. VII.] "EXCHEQUER COURT REPORTS. standing the fact that the real owners were free from any personal liability whatever in respect of the T claims. In other words the court held that wherever a maritime lien was created in favour of any one against the property—the ship it was not necessary to further establish personal liability against the real owner. The doctrine that there must, in conjunction with the maritime lien be established the personal liability of the owner though apparently suggested in 'terra several earlier cases the learned judge after careful consideration of those cases held that the liability against the ship might be created without establishing the personal liability of the owner. City was not a chartered vessel, but a vessel in the possession of persons to whom the owners had made a provisional sale. The owners had not been paid the purchase money, and had not consequently transferred the legal title to the purchasers, but had chosen to hand the possession of the vessel over. to them to be employed by the purchasers as they might see fit in the meanwhile. Gorell Barnes, J., in his very able and elaborate judgment, points out this important limitation of a master to create a maritime lien for disbursements in the case of a charterparty, and,citing gate (1), and The Turgot (2), says : (8) " A master who with knowledge of a charterparty under which the charterers are to provide-and pay for coals, orders coals on their credit, and draws on them for the value, and had, and knew he had, no authority, expressed or 'implied, to pledge the owner's credit for the coals, has • not a maritime lien for the amount of his liability on the bills drawn for the price of the coals," and cites from Lord Watson's judgment in the House of Lords in The Castlegate the following passage : " I can find no reasons, either of equity or policy, for enabling the (1) [1893] A. C. 38. (2) 11 P. D. 21. (3) [1897] P. at p. 238. 43 1901 R T o E oH R E & e - PITTSBIIàG CO AT É tO N C THES HIP THE GAR- DEN CITY' J "en' The Ripon The Castle-
44 EXCHEQUER COURT REPORTS. [VOL. VIL 1901 master of a vessel who is not bound to incur liability T to relieve himself when he does choose to incur it out . RocHEs- of the property of his owners, although they may TER S, PITTSBURG derive no benefit from it, and by the terms of his COAL AND IRON Co. employment he is debarred from incurring it on their personal account." So that in this case if the master THE SHIP THE GAR- had drawn bills on the charterers for their coal bills, DEN CITY. and the same had not been paid, he could not, as such Reagan!, master, with a knowledge of the terms of his charter- ja1e"'̀ party, have created a maritime lien against The Garden City for the value of this coal, although he had ren- _ dered himself personally liable therefor by drawing bills. The word ` owner' used in the statutes of 1861, in my opinion, means ` registered owner,' or a person entitled to be registered as owner, not a pro hâc vice owner ; and the word ` domicile ' must be understood in its ordinary legal sense. Now, the statute expressly gives the court jurisdiction to entertain an action in rem for necessaries supplied a ship in any port other than her home port, but that jurisdiction is liable to be displaced if it be shown that at the time the writ issued an owner or port owner was domiciled in Canada. In collision cases, where the collision occurs between a chartered vessel and another, the maritime lien which the injured vessel may have against the chartered vessel arises only because, as G-orell Barnes, J. says in The Ripon City, "It is a right acquired by one over a thing belonging to another, a jus in re aliend. 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
`'
VOL. VII.] EXCHEQUER COURT REPORTS. 45 who has acquired the right cannot be deprived of it 1901 by alienation of the thing by the owner." (1) TH The result of his very able review of the authorities t ons- is to point out that it is only maritime liens that a ship PITTSBURG may become liable for when in the possession and IRON Co. control of charterers, because the lien-holder is entitled * TaE °S IP to treat the vessel as owned by the person in posses- THE G }dx- sion. But Other claims which may arise, such as are DEN CITY. illustrated in The Druid (2) ; The Orient (3), and The Reg nn. Ida (4), cannot be enforced against the vessel because aaa .. . . they arise out . of unlawful acts done without any authority and beyond anything which ought to be contemplated in the ordinary- use of the vessel. In cases like The Turgot (5), and The Castlegate (6), persons dealing with the charterers have been held. not to be entitled to treat the vessel as owned .by the charterers, but have dealt with them on their credit and not upon the faith of having the security of the vessel. In the present,case,,there'.being ,no maritime lien, no act of the master in • purchasing supplies. for the ship,. with a full ° knowledge of the terms of the charterparty, could bind either the vessel, or the owners, or any person except the charterers or himself personally. . The question as to whether an action in rem may be instituted against a 'vessel for necessaries supplied to her in any port other than her home port depends solely upon the fact at the time of the institution of the action. Was an owner or part owner domiciled in Canada ? If any such owner was domiciled in Canada, or in other words, within the jurisdiction of the Admiralty Court, then no action in rem for necessaries will lie. I am of opinion, therefore, (1) [1897] P., D. 242. (4) Lush. 6. (2) 1 win. Rob. 391. (5) 11 P. D. 21. (3) L. R. 3 P. C. 696. (6) [ 1t393] A. C. 38.
46 EXCHEQUER COURT REPORTS. [VOL. VII. 1901 that the plaintiffs' writ and the service thereof must THE be set aside with costs. ROCHES- TER & Judgment accordingly.* PITTSBURG COAL AND IRON CO. Solicitors for plaintiff: Thom, German 4. Pettit. TH E SHIP Solicitor for the ship : M. J. McCarron. THE GAR- DEN CITY. Reason* for Jud~mcnt. * REPORTER'S NOTE : An appeal was taken by the plaintiffs to the JUDGE OF THE EXCHEQUER COURT, who affirmed this judgment. See the report of the case on appeal, post.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.