Page images

The statutes by which the responsibility of the owners is taken away when the vessel is under the conduct of a licensed pilot,1 and limited, in all cases, to the value of the ship and freight, apply to damage by collision; and foreign as well as British ships are deemed to be under the protection of the former, though it may be doubted whether they could claim the benefit of the latter enactment.4



There seems to be no reason why the cargo on board the wrong-doing vessel should contribute to make good the damage; if the rule were so, the effect would only be a circuity of action, but as regards cargo damaged by the collision, although it has been laid down by an authority no less eminent than Valin, that it has no claim to share in the amount of compensation, yet it cannot be doubted that in this country the right of the freighter to amends

then and in such case it shall be lawful for such judge to cause such foreign ship or vessel, being in any harbour, port, or river, or creek, to be arrested and detained until the master, or owner, or consignee of such ship or vessel, shall undertake to appear and be defendant, in any action which shall be brought for such loss or damage, and give sufficient security, by bail, or otherwise, for all costs and damages if recovered as shall be directed and ordered, by such judge, if it shall, upon the trial of such action or suit, appear that such loss or damage shall have arisen from such negligence or misconduct as aforesaid, and in such action or suit, the person giving security shall be made defendant, and shall be stated to be the owner of the foreign ship or vessel doing such damage, and it shall not be necessary in any such action or suit to give any other evidence of the liability of such person to such action or suit than the production of the order of the judge made in relation to such security."

16 Geo. IV. c. 125, s. 55; 7 Taunt. 258.

255 Geo. III. c. 159.-It has been held however, (in the last case decided by Lord Stowell, The Dundee, 2 Hag. 137,) that the limitation extends only to the original claim, and that not only the costs, but in case of unreasonable delay interest also upon the costs, may be recovered beyond.

3 The Christiana, 2 Hag, 183.

The preamble of the statute seems to limit it to British vessels.

5 Because if the freighter were compelled to pay, he would clearly have a right to recover it back from the owner of the vessel in which his goods were embarked, subject of course to the limitation of the responsibility. Generally speaking, that statute would bring the various interests concerned into a Court of Equity, which would be enabled to adjust the several rights in that suit.

62 Valin, 167-169.

from the wrong-doer would be upheld, and, by consequence, that in cases where the loss was apportioned between the two vessels, his title to participate would also be acknowledged.1

2. As between the owner and freighter of the suffering vessel, it is clear that if the injury were the result of accident, it is a peril of the sea within the exception of the contract, and must fall where it lights,2 and that if it arose from the misconduct of the master of the vessel in which the cargo is embarked, the freighter is entitled to indemnification from the owner; it seems also, that if the fault, though it exists, cannot be specifically attached upon either party, the loss will in that case likewise be regarded, so far as the relation of the owner and freighter is concerned, as a peril of the sea,3 and that where there is proved fault on the part of both, the freighter, unless satisfaction be made to him in the apportionment of the damage out of the aggregate value brought into hotchpot, might, on principle, sue the owner for compensation.

1 This would seem to follow, from the judgment in Le Neve's case before referred to, where the cargo lost by the collision was taken into account in the valuation.

2 Buller v. Fisher, 3 Esp. N. P. C.

3 This, however, is to be received as the conjecture of the writer merely. The question would be whether it was incumbent on the complainant to show that it was not a peril of the sea, or on the defendant to bring it within the exception of his contract by showing that it was a peril of the sea. If the owner is to be considered as an insurer, or as having absolutely engaged to deliver safely, save in the excepted cases, the burden is on him to purge himself of fault;-if the presumption of law, in this case as generally, is, that there is no fault unless proved, then the burden is on the freighter.-Ergo quære.



1. Treatise on the Magistracy of England, and the Origin and Expenditure of County Rates, illustrating the Present defective Management of County Financial Affairs, the irresponsibility of Justices of the Peace, the existing inefficiency of Parish Constables, and the want of a County Police. By Edward Mullins, Solicitor.

2. A Bill to establish Councils for the better Management of County Rates in England and Wales, prepared and brought in by Mr. Hume and Mr. Alston.

3. Report of the Commissioners for Inquiring into County Rates, &c. 1836.

OFFICIAL documents inform us that the money levied in 1833 for Poor Rate and County Rate amounted to 8,606,501l., or more than eight millions and a half yearly; one part, and the larger part of that annual charge, has since that period undergone a rigid scrutiny, and a thorough revision, the financial results of which are undoubted, and upon the general consequences of which we will not presume to hazard an opinion, because the question of good or evil is now in the very course of trial, and a parallel question can scarcely, if at all, be involved in the economy of county rates. Unfit, indeed, should we be to approach the discussion of any topic of national or even of local interest, if, in weighing it, we placed only gold and silver in the scale, and decided according to the preponderance of mere metal. Public justice and social happiness, upon which necessarily depends individual comfort, are important ends for the attainment of which money is but one instrument; and any expenditure of the latter which should be absolutely required in order to attain and enjoy the former, would readily be allowed and approved by the public. But though no sum would be too great for the purchase, we should not on that account be content to give any price that may be demanded for them, without inquiring

whether the real thing cannot be had for less. As in the ordinary affairs of trade, so even in political economy, the most expensive article is not always the most genuine. On the contrary, if we apply to a dealer, who from particularly favourable circumstances enjoys a monopoly, or who has a name in the trade because his grandfather, or predecessor in the same line, sold an excellent thing of the kind a century ago, we should probably pay more for it than if we patronized another whose increasing custom depended on the good opinion of a discerning public. In any branch of shop-keeping, or in any department of the executive, implicit confidence in and undue favour to any one creates indifference, neglect, bad work, and high prices.

We have ventured to intrude these truisms because we would not have it thought that we are willing to sacrifice the public good to any plan of economical improvement, or that in examining, adapting, and endeavouring to perfect the machinery, we could for a moment lose sight of the object for the accomplishment of which that machinery exists.

The object of the county rate, and the purposes to which it is applicable, are the following:


Gaols, Houses of Correction, and Lunatic Asylum;
Prisoners in Gaols, &c. ;


Examination of Weights and Measures;


and various other smaller items of expenditure.

These are purposes of the first public importance, which must be accomplished in the most efficient manner possible, whatever the expense may be, because they are essential to the security and enjoyment of life and property; but we should not on this account be frightened away from an inquiry into the system of management, and the mode of expenditure, provided only that we keep the main object steadily in view, with a determination not only to arrive at it, but to reach it by the most convenient and secure route we can dis


If on the one hand we resolve not to sacrifice one iota of

the public weal for the sake of a paltry saving, we will not, on the other hand, flinch from the rigid excision of every petty interest which may clog the management, whilst it mars also the economy, of the whole system.

What then is the county rate? by whom is it paid, and by whom spent? It is a poundage rate or assessment upon, and paid by, the occupiers of visible property within the county; it is spent according to the order of the magistrates of the county; and its expenditure is at the close of each year finally and conclusively audited by the same magistrates. Thus the right of discretionary expenditure is vested in parties not identical with or representative of those who pay the money, the same parties are final auditors of their own expenditure, and they are freed from any responsibility whatsoever as to the exercise of their discretion. This is an anomaly in our social and administrative system. Whether in the appropriation of parochial charges or of national taxes, neither the local officer nor the public minister has ever arrogated to himself so absolute a power, or so perfect an immunity from controul. The overseer is recommended to the magistrates out of the body of the rate-payers, and at the close of his year he not only submits the accounts of the poor-rate to the audit and allowance of the magistrates, but the prevalent sense of fair and due responsibility has also induced the custom very generally throughout the country, for overseers to lay their accounts before a general meeting of rate-payers for examination and approval before they are presented for the allowance of the magistrates. There is the same account rendered of the outlay of other parochial assessments. All the rights and liberties of Englishmen hinge upon the principle of the responsibility of the king's ministers to the representatives of the people, or tax-payers, for the expenditure of the national taxes: and that implicit confidence which we will not, under any circumstances, place in any persons whatsoever, however respectable, or however exalted their character, we have hitherto been content to repose in the county magistrates with regard to the disposal of the county rates. It is, we repeat, an anomaly, and an anomaly should never exist if it can be avoided. Now we think no

« ՆախորդըՇարունակել »