and therefore, I am of opinion that the defendant is entitled to judgment, and the decision of Cleasby, B., ought to be affirmed.

Judgment affirmed. Solicitors for plaintiffs, Parker and Clarke. Solicitors for defendant, Waltons, Bubb, and Walton.

May 2 and June 2, 1877.

(Before JAMES, BAGGALLAY, BRAMWELL, and BRETT, L.JJ.)

THE FRANCONIA.

ON APPEAL FOR THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION (ADMIRALTY). Collision-Lord Campbell's Act-Admiralty Court Act 1861-Action in rem-Jurisdiction. On appeal from the decision of the Probate, Divorce, and Admiralty Division (Admiralty) refusing a motion to set aside so much of a writ of summons in rem as claimed compensation for the loss sustained by the plaintiff, in consequence of the death of a person of whom she was administratrix, and who, whilst serving on board a British ship, had lost his life through a collision between his vessel and a foreign ship on the high seas, caused by the negligence of those on board the foreign ship.

Held, per James and Baggallay, L.JJ. (approving the decision of the court below), that the judge of the Admiralty Division has jurisdiction to entertain a suit in rem under Lord Campbell's Act (9 & 10 Vict. c. 93).

Per Bramwell and Brett, L.JJ. (disapproving the decision of the court below) that the jurisdiction given by the Admiralty Court Act 1861, s. 7 does not include claims under Lord Campbell's Act. The court being equally divided the decision of the court below remains, and the appeal is dismissed with costs.

THIS was an appeal from the Probate, Divorce, and Admiralty Division (Admiralty) in which, following the opinion of the Judicial Committee of the Privy Council in The Beta (L. Rep. 2 P. C. 447; 20 L. T. Rep. N. S. 988), the learned judge decided that he had jurisdiction to try a cause instituted in rem against a foreign vessel by the representatives of a person on board a British ship killed by a collision on the high seas occasioned by the negligence of those on board the foreign vessel, and refused a motion to set aside so much of a writ of summons in rem as claimed damages for loss of life. The arguments and judgments in the court below will be found fully reported ante, p. 415. On the 2nd May 1877 the appeal came on for argument.

Benjamin, Q.C. and Cohen, QC. (with them Phillimore) for the appellants, defendants below.— This is an action under the special statute, usually called Lord Campbell's Act (9 & 10 Vict. c. 93), that Act gave no jurisdiction to the Admiralty Court in such a case and certainly none to extend its peculiar jurisdiction in rem. The statute can only apply to British subjects, and to those within the jurisdiction of the Crown of Great Britain at the time the cause of action arose, and therefore owing an allegiance permanent or temporary to its laws. It has already been decided that in this case those on board the Franconia were not within the jurisdiction: (Reg. v. Keyn, L. Rep. 2 Ex. Div. 63;

[CT. OF APP.

L. Rep. 2 Q. B. D. 90.) The Court of Admiralty had jurisdiction over a cause of damage to property the result of a collision on the high seas even between two foreign vessels in the event of the res coming within the territorial limits of Great Britain; but that was in consequence of the consent of nations that courts of admiralty should exercise such jurisdiction, but such consent has never been given to extend the operation of a British municipal law to foreign vessels. Suppose both vessels had been foreign and one had after the collision come into a British port it could be said in such a case that Lord Campbell's Act applied. [BRAMWELL, L.J.-You say it would be as if two carriages had come into collision through negligence in France, and someone had been killed and the owner of the carriage causing to death had subsequently come into England, and was proceeded against under Lord Campbell's Act.] But apart altogether from the question of the nationality of the ships there is no jurisdiction to proceed in rem under Lord Campbell's Act. The case in which the Privy Council has held that the Court of Admiralty had jurisdiction was one of personal damage (The Beta, L. Rep. 2 P. C. 447; 20 L. T. Rep. N. S. 988), and the claim was for the injuria done to the plaintiff and not for the damnum suffered by his estate. The Common Law Courts have always held that the Court of Admiralty had no jurisdiction in rem in any case of personal damage, and have prohibited it from proceeding in such cases: (Smith v. Brown, L. Rep. 6 Q. B. 729; 24 L. T. Rep. N. S. 808; 1 Asp. Mar. Law Cas. 56; James v. London and South-Western Railway Company, L. Rep. 7 Ex. 195; 26 L. T. Rep. N. S. 187; 1 Asp. Mar. Law Cas. 228.) But there is no conflict of opinion between the Judicial Committee and the Common Law Courts, when the question was one of damage to the estate of the deceased under this Act, as no such case has come before the Privy Council. The Ruckers (4 Rob. 76) is not in point. That was a purely personal cause of damage arising on board a British ship on the high seas, and therefore within the admiralty jurisdiction, and was not a cause in rem at all. The only cases in which the Court of Admiralty ever exercised the jurisdiction (The Guldface, L. Rep. 2 Ad. & Ecc. 325; 19 L. T. Rep. N. S. 748; 3 Mar. Law Cas. O. S. 201; The Explorer, L. Rep. 3 Ad. & Ecc. 357; 23 L. T. Rep. N. S. 405: 3 Mar. Law Cas. O. S. 507) were before the prohibition of the Queen's Bench in Smith v. Brown (ubi sup.) and in the Explorer (ubi sup.) when the question was raised in the Privy Council the claim was withdrawn. The Courts of Common Law have also held that statutes giving admiralty jurisdiction, as e.g., to the County Courts over claims for damage to cargo, and granting an appeal to the Court of Admiralty do not, for want of express words extend the jurisdiction of the Court of Admiralty to matters over which, before the passing of those statutes (31 & 32 Vict. c. 71; 32 & 33 Vict. c. 51) it would not have had jurisdiction: (Simpson v. Blues, L. Rep. 7 C. P. 290; 26 L. T. Rep. N. S. 647; 1 Asp. Mar. Law Cas. 360; Gunestead v. Price, L. Rep. 10 Ex. 65; 32 L. T. Rep. N. S. 499; 2 Asp. Mar. Law Cas. 545.) To hold the defendants liable in the case is to say that a municipal law is extended without express words to a foreigner in his own country, that is on board of a foreign ship on the high seas. By the civil law, which is the law administered by the

26 L. T. Rep. N. S. 697), and by the Court of Exchequer, and on appeal by the Exchequer Chamber in the case of James v. London and SouthWestern Railway Company (1 Asp. Mar. Law Cas. 228; L. Rep. 7 Ex. 187, 287; 26 L. T. Rep. N. S. 187; 27 L. Î. Rep. N. S. 382). But in neither of the last two cases did the question turn upon the construction of this section.

I am unable to concur in the construction of the Admiralty Jurisdiction Act which has been so adopted by the Queen's Bench, and apparently concurred in by the other courts to which I have just referred. It appears to me that the view taken by the Court of Admiralty and the Judicial Committee is the more correct. The words of the 7th section are perfectly general; taken by themselves they would appear to confer a jurisdiction upon the Court of Admiralty to entertain all claims in respect of damage done by a ship, whatever may be the nature of the damage, whether to person or to property. There is nothing in the context of the section to suggest that the word "damage" should be limited in its meaning, and the statute, being remedial of a grievance, should receive a liberal rather than a narrow construction. This principle was acted upon by Dr. Lushington in the case of The Bahia (Bro. & Lush. 61), and by the Judicial Committee in the case of The Pieve Superiore (L. Rep. 5 P. C. 482; 29 L. T. Rep. Ñ. S. 702; 30 L. T. Rep. N. S. 887; 43 L. J. 1, 20, Adm.) We have only to look at the sections of the Act which follow the 7th to see that it was the intention of the Legislature to give to the Court of Admiralty a jurisdiction to enable it to do complete justice in the cases which might come under its consideration. The 13th section in particular confers a jurisdiction under which, in many cases, it would be necessary that the Court of Admiralty should assess the amount of damages in respect of loss of life or personal injury, and the nature of the jurisdiction conferred by this section (to which I shall have occasion to refer again presently) appears to me to negative any construction of the Act which would limit the jurisdiction thereby conferred to the subject matters that were previously under its cognisance-a view of the case which has been suggested in the course of the argument. It is further to be observed, that if the 7th section is to receive the limited construction which has been suggested, it is difficult to understand why it was introduced into the Act, seeing that in such a case the extension of jurisdiction would have been of a very trifling character, as the Court of Admiralty already had undoubted jurisdiction in respect of damage to property occasioned by collision.

It has, however, been urged, on the part of the appellant, that, notwithstanding the general terms in which the 7th section is expressed, the word "damage" ought, for reasons which will be presently mentioned, to be limited in construction to damage done to property, or, at any rate, that it ought not to be construed so as to include loss of life. As similar arguments found favour with the Court of Queen's Bench in the case of Smith v. Brown (ubi sup.), and as two of my colleagues think that our decision in the present appeal ought to be in favour of the appellant, I proceed to express my opinion upon the point so pressed upon us; and I do it with more diffidence, differing as my opinion does from the opinion of those for

[CT. OF APP.

whose knowledge and experience I entertain the most profound respect, and in differing from whom I cannot but entertain doubt as to the correctness of my own conclusions.

In support of the view that the word "damage," as used in the 7th section of the Admiralty Jurisdiction Act, should be limited in construction to damage to property, it is contended that not only is there no legislative sanction for the use of the word as denoting injury to the person, but that the Legislature has, in other recent Acts, in pari materia adopted the use of the word "damage" as applicable exclusively to injury to property, and that it must be assumed that the Legislature, in passing the Act in question, did not lose sight of the distinction we have recognised in its other enactments. If it were so, I should feel strongly the force of the arguments based upon them; but I do not so read the Merchant Shipping Acts of 1854 (17 & 18 Vict. c. 104), and 1862 (25 & 26 Vict. c. 63), which are the Statutes to which reference has been made. The latter Statute, it will be observed, was passed after the Admiralty Jurisdiction Act 1861. It is quite true that in the sections of the Merchant Shipping Act of 1854, which have reference to the limitation of the liability of shipowners, the expressions "loss of life" and "personal injury are used with rereference to injury to the person, whilst the word "damage" is used with reference to injury to property; but under the provisions of these sections a different scale of liability was fixed in respect of injuries to the person from that in respect of injury to property, and it was convenient (though I admit not necessary) to use different forms of expression to distinguish one kind of injury from the other; but if the 7th section of the Admiralty Jurisdiction Act was intended to apply to injury to the person as well as injury to property, there was neither necessity for using, nor any convenience in using, more than one expression to denote both kinds of injury. But this limited use of the word dainage is not observed throughout the Merchant Shipping Act 1854. In the 515th section, the words "loss or damage" are used in reference to three classes of injury, and as the word "loss" would be wholly inapplicable to personal injury not resulting in death, the word "damage in the 7th section must have reference to personal injury as well as injury to property. Again, if we turn to the 290th section of the same statute, which is the last of a series of sections enacting various rules for the prevention of accidents, we find that it commences with the words, "In case any damage to person or property arises from the non-observance of any ship of any of the said rules." Here we have a clear unquestionable use of the word " damage in the sense applicable to injury to the person as well as to property. In the 527th section we find the expression "injury to property," which is suggestive, at least, of the words "damage" and injury" being to some extent interchangeably used. And so, again, in the other Act referred to (the Merchant Shipping Act 1862), whilst, on the one hand, we find the expressions "loss of life," 'personal injury," and "damage to property used in the sections modifying the provisions of the Act of 1854 as to the liability of shipowners, we, on the other hand, find in the 20th section the expression "damage to person or property" applied to injuries occasioned by breaches of regula

66

66

CT. OF APP.1

tions therein referred to. So far, then, from there being no legislative sanction for the use of the word "damage as denoting injury to the person, and from the Legislature having adopted the use of the word as exclusively applicable to property, it appears to me that the very statutes referred to as supporting this provision afford extensive evidence to the contrary. And here I would refer to a statement made by Sir R. Phillimore in the course of his judgment in this case in the Admiralty Division, which appears to be borne out by the report of the case of The Ruckers (4 C. Rob. 73), before Lord Stowell, to the effect that an action commenced in the Court of Admiralty in respect of a personal assault committed on the high seas by the master of a ship on a passenger was, previously to the Act of 1861, always described as a cause of damage."

66

But the further argument remains to be considered, namely, that, assuming it cannot be maintained that such a limited meaning as suggested ought to be given to the word "damage," by reason of the legislative use of the word in the Merchant Shipping Acts, the meaning of the word ought not to be so extended as to include loss of life. This argument is based upon the provisions of Lord Campbell's Act (9 & 10 Vict. c. 93), and it is contended that, inasmuch as the right of action created by this Act is extended or modified by the subsequent statute (27 & 28 Vict. c. 95), where obtaining compensation for the families of persons killed by accident was confined to actions brought in the courts of common law, and that great practical inconvenience and possible injustice might arise from an exercise by the Court of Admiralty of jurisdiction in such matters, it is impossible to suppose that the Legislature intended under a general statute, such as that we are now considering, to effect so great a change in the rights and relative positions of the parties to such actions. In support of this view it has been urged that the transfer of jurisdiction to the Court of Admiralty would not only deprive the parties of the Common Law procedure and the mode of trial pointed out by the Act, but might also materially affect their relative rights, having regard to the fact that the Court of Admiralty, in dealing with claims for damage arising from collision, acts upon principles unknown to the Common Law-as, for instance, in dividing the loss where both parties are to blame. It is quite possible that some such inconveniences as those suggested might have arisen from an exercise by the Court of Admiralty of the jurisdiction in question, or may arise from an exercise of the like jurisdiction by the Admiralty Division; though, having regard to sect. 25, sub-sect. 9 of the Supreme Court of Judicature Act 1873 (36 & 37 Vict. c. 66), I much doubt whether any such conflict between the civil and the Common Law, as was suggested by Lord Blackburn, in Smith v. Brown (ubi sup.), could arise after that Act came into operation; but, however this may be, the Legislature has thought fit to enact that under certain circumstances of a similar character, at least as likely to occur similar inconveniences must be submitted to. The right of action given by Lord Campbell's Act is in certain cases modified and restricted by the sections of the Merchant Shipping Act already referred to, and the jurisdiction for assessing the amount of damages in such cases, as regards

[CT. OF APP.

injury to the person as well as injury to property, has been conferred on the Court of Chancery, and by the 13th section of the Admiralty Jurisdiction Act, the jurisdiction which, by the Merchant Shipping Act of 1854, was conferred upon the Court of Chancery has been extended to the Court of Admiralty whenever the ship, or the proceeds thereof, are under arrest. In this very case, though the ship was not arrested in this action, she had been arrested in other actions, and, as I understand the facts, it was agreed that the case should be treated and dealt with as if she were under arrest and the proceedings were in rem; but, however this may be, she might have been under arrest, and, if she had been the Admiralty Division would have been bound, under the 13th section, to entertain an action at the instance of the owners of the ship for the distribution of the amount of their liability amongst the claimants, and in such case to assess the amount of damages, payable to the plaintiffs, and to ascertain the proportions thereof payable to the different members of Jeffery's family. Every inconvenience and every injustice which has been suggested as likely or possible to occur if the present action had been brought in the Court of Admiralty, would, or might, equally arise in such an action as has been suggested. It appears to me that the arguments based upon the probability or possibility of such possible inconvenience or injustice cannot be maintained.

Upon the whole I am of opinion that the judgment of the Admiralty Court should be affirmed. BAGGALLAY, L.J. concurred with the judgment of James. L.J.

The judgment of Brett and Bramwell, L.JJ., was read by

BRAMWELL, L.J.-I will now deliver the judg. ment of my brother Brett and myself.

We are of opinion that this appeal should be allowed and that the Admiralty Division has no jurisdiction in rem in a case in which the right of action is under Lord Campbell's Act (9 & 10 Vict. c. 93). We offer no opinion as to whether it would have jurisdiction in a case of personal hurt where there was no death, and the person hurt was the plaintiff. We proceed upon the ground that the action given (by 9 & 10 Vict. c. 93) is not within the words and meaning of sect. 7 of the Admiralty Juris diction Act 1861 (24 Vict. c. 10). The Legislature, it is true, has given power to the Admiralty Court to assess and apportion the damages in such cases, under certain circumstances, under the Merchant Shipping Acts; and in such case it necessarily follows that the machinery for assessing was dispensed with. It is true that a jury can now be had in the Admiralty Court; and, as Mr. Butt pointed out, that the word "damage" in sect. 7 of 24 Vict., c. 10, includes the damage done to goods. It is also true that, under the Judicature Acts, any action in personam may, as matter of jurisdiction, be brought in the Admiralty Division as well as in any other; yet, looking to the terms of Lord Campbell's Act, and sect. 7 of the Admiralty Court Act 1861, and construing them as at the time the latter was passed, we are of opinion that sect. 7 of the latter Act gave no jurisdiction in rem, which is the question now under discussion. Lord Campbell's Act is express. says: "The jury may give such damages as they may think proportioned to the injury, &c., and the

amount shall be divided in such shares as the jury, by their verdict, shall find and direct." As to the words "the jury may give," &c., that might possibly be held to mean "jury " where there was a jury, and "court" where there was not. We do not say it could be; but, whether or no, we are of opinion that under that section it must be a jury who are to find and direct the division in shares.(a) The words are express. Suppose Lord Campbell's Act had said such actions should only be brought in a court where there was a jury, would sect. 7 of the Admiralty Court Act 1861, have repealed that? But it does say so in effect, and the argument is that it is repealed. Suppose that the relatives had assigned their right of action, would the assignees have maintained a suit in Equity ?— Would an action lie in a County Court without a jury? No; the jury is essential. But it is remarkable that no jurisdiction is given in a case of bodily hurt to a passenger, or trespass to his goods for injury done in a ship. We think there is great weight in the argument that the words of sect. 7 of the Admiralty Court Act 1861, are not apt words to include a case under Lord Campbell's Act. Such a claim as this is neither properly nor strictly speaking a claim for damages done by a ship. It is a claim for compensation for loss sustained partly by a death caused by a ship, and partly by something else which may or may not happen, as well as the death, but which must also happen in order to substantiate a claim or relief. It is a claim not proportioned to the act done. Of course, though we have thought it right to make the above remarks, we avail ourselves of the judgment and reasons in Brown v. Smith (ubi sup.), especially on account of the difficulty arising from the difference between the Admiralty and Common Law. As to contributory negligence, would the Court of Admiralty have to give up its view or grant an action when Lord Campbell's Act did not? We are of opinion that the appeal should be allowed.

The court being equally divided, the appeal was dismissed with costs.

Solicitors for appellants, Stokes, Saunders, and Stokes.

Solicitors for respondents, Gellatly and Warton.

SITTINGS AT LINCOLN'S INN. Reported by J. P. ASPINALL and F. W. RAIKES, Esqrs., Barristers-at-Law.

ON APPEAL FROM THE ADMIRALTY DIVISION.

Dec. 7 and 11, 1876; and April 21, 1877. (Before JAMES, L.J., BAGGALLAY and BRETT, JJ.A.) CARGO EX SCHILLER.

Salvage of life-Liability of cargo-Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) sects. 458, 459.

Where life salvage is performed, cargo, subsequently

(a) It does not seem to have been pointed out to the court that the Court of Admiralty had, and the Admiralty Division still has, the power under 3 & 4 Vict. c. 65, sect. 11, to direct a trial by jury of any issue or issues before a judge of a superior court of common law sitting in London or Middlesex, or a judge of assize, and that this power is still further extended by the Judicature Act of 1875, sect. 70, and the Supreme Court Rules, Order XXXVI., rule 29. These enactments would empower the Admiralty judge to direct an issue to be tried whether "A. was entitled to any, and, if so, what sum under Lord Campbell's Act," or some such issue.-ED.

[CT. OF APP.

salved from the same vessel as the lives, but by persons employed by the owners for the purpose and wholly distinct from the life salvors, is liable to contribute towards the reward due to the life salvors under the provisions of the Merchant Shipping Act 1854, sects. 458, 459.

THIS was an appeal from a judgment of the High Court of Justice (Admiralty Division) in a cause of salvage instituted against the cargo of the German steamship Schiller by the owners, masters, and crews of some pilot cutters and boats, to recover reward for services rendered in saving the lives of some of the passengers in that vessel. The Schiller was wrecked on the Retarrier Reef among the Scilly Islands. The plaintiffs saved only the lives, and rendered no service to the vessel or the cargo; no part of the cargo was saved at the time of the plaintiffs' services, but some time afterwards, when the owners of part of the cargo (bullion) engaged a staff of divers and workmen, and with their assistance succeeded in getting up a considerable quantity of specie. This cargo the plaintiffs now proceeded against. The court below held that the cargo was liable to pay salvage reward in respect of the services in saving life. From this judgment the defendants, the owners of the specie, appealed.

The facts, and the judgment of the court below, will be found fully reported, ante, p. 226.

Dec. 7, 1876. — Butt, Q.C. and Lodge for the appellants. Here the lives and the cargo were saved at different times and by different persons. In The Fusilier (B. & L. 341; 12 L. T. Rep. N. S. 186; 2 Mar. Law Cas. O. S. 177) it was held by the Privy Council, that where cargo and lives are saved at the same time, the cargo is liable for the salvage of life. That case is so far against the appellants, unless it can be argued that the decision is wrong and this court is not bound by it. [JAMES, L.J.-We are sitting here in the place of the Judicial Committee of the Privy Council on appeal from an Admiralty decision, and are exercising the jurisdiction formerly exercised by them. I think we must consider ourselves bound by their decisions in Admiralty matters. Good reasons may be given why we should not be so bound, and the question may be raised, but my present opinion is that we are bound.] We submit that the court is not bound by that decision; but even if it is, the present case is distinguishable. The first question is, What was the Admiralty jurisdiction to award salvage of life before the Merchant Shipping 1854 (17 & 18 Vict. c. 104)? Unless ship or cargo, or both, were saved there was no salvage reward payable for merely saving life; where life was saved together with ship and cargo, it was customary to give a larger reward than if property only had been saved. Then the Merchant Shipping Act 1854 (sects. 458, 459) deals with the question by enacting that the salvage in respect of life shall be payable by the ship from which the lives are taken; it is not payable by the cargo, but by the ship; even if these salvors had saved the cargo at the same time as the lives, they could not recover against the cargo. [BRETT, J.A.-Sect. 459, in making the salvage of life "payable by the owners of the ship or boat," seems to assume that the shipowner is to pay for the lives even though the ship is not saved.] The Legislature did not mean to fix personal liability upon any person unless the ship or cargo is saved. The intention