CHAP. VI. case of embezzlements committed by other persons. The legislature proceeded in a later statute to give the same protection in the case of all losses otherwise produced." "Anciently the owners were, under the general law, civilly answerable for the total loss occasioned by the negligence or unskilfulness of the persons they employed; but the avowed purpose of the relaxation of this rule of law was, to protect the interests of those engaged in the mercantile shipping of the state, and to remove the terrors which would otherwise discourage people from embarking in the maritime commerce of a country, in consequence of the indefinite responsibility which the ancient rule attached upon them. It was a measure evidently of policy, and established by countries for the encouragement of their own maritime interests. By that statute, 53 Geo. 3. c. 159., the responsibility of ship-owners in an action for damage by collision is limited to the value of the vessel doing the damage, and to the freight due or to grow due for the then voyage; and it was decided in the Richmond †, that such responsibility was not extended by the owner's having given bail unconditionally in a sum plus the real value, to answer the action. But as it frequently happens that the master of the vessel doing the damage is as well the part-owner, it becomes necessary that we should observe what is the authority of the Admiralty against him, and how far he may be made liable in a proceeding in the Admiralty Court against the ship; it will be seen, in the course of this inquiry, that the persons suffering by the damage may proceed in Admiralty against * By Lord Stowell in the Carl Johan, where it was held that the privilege as to owner's liability applied only to British ships, but did not extend to foreign ships or to foreign owners. See 1 Haggard's Admiralty Reports, 103. † 3 Haggard's Admiralty Reports, 431. the ship, or they may proceed against the owners per- CHAP. VI. sonally, or the master personally. The question which The Volant. is at present under consideration is, as to how far (if at all) the Admiralty Court can engraft such personal proceeding upon an action in rem. A recent case in the Admiralty Court on this subject should be mentioned here, as incidentally it affects the jurisdiction of the Court; and as therein are embodied the previous decisions on the subject, the whole will be better brought to the notice of the reader (it is conceived) by an abridgment of that case. * The vessel was arrested by process issuing from the Admiralty Court in a cause of damage by collision; an appearance was entered for the owners, and bail was given in the amount of the value of the wrong doing ship. The Court, assisted by Trinity Masters, was of opinion, that the damage was caused by the neglect of the Volant (the vessel proceeded against), but made no decree a question being raised with respect to the liability of the owners of the damaging vessel to make good the damage beyond the amount of the value of the ship, such value being insufficient to cover the amount of the damage, the Court was therefore prayed to decree also against the master of the Volant, who was a part-owner of, and as well commanding, the vessel doing the damage in support of this application was cited the case of the Triune †, decided by Sir J. Nicholl, and contra was cited the Hope. ‡ In the former case the vessel had been arrested and no bail given, but an appearance was entered on behalf of the master, the principal owner. The Court pronounced against the vessel arrested, and condemned the master, the vessel, and freight in the damage and in the * The Volant, 1 W. Robinson's Admiralty Reports, 383. † 3 Haggard's Admiralty Reports, 114. 1 W. Robinson's Admiralty Reports, 158. CHAP. VI. The Volant. costs The ship was sold, and the proceeds were insufficient to cover the amount of the damage in the extent of 4007. A monition was then decreed against the master for that sum, and he was subsequently attached and imprisoned. This case was contrasted with the case of the Hope; by reason that here an appearance was entered by the master, the principal owner, only. And again, no bail was given, and Sir J. Nicholl inquired whether there was any precedent for the application for the attachment; and when the attachment was decreed, no reasons were given and no case cited. In the more recent case decided by the present learned Judge of the Admiralty, an appearance was given for three part-owners resident in Scotland. The damage was between 13007. and 14007.: bail was given in 15007. and the value of the Hope was 8107. The master and part-owner was on board at the time, and the collision arose from his own fault and misconduct. The Triune was not referred to, but the Court was of opinion, upon the general principles upon which the proceedings of the Court of Admiralty are conducted, that it was incompetent for the Court to engraft a personal action against the master as part-owner upon a proceeding in rem, to make him responsible for the excess of damage beyond the proceeds of the ship; it was clearly the opinion of the Court that it did not possess such a jurisdiction. There being this difference of opinion entertained in these two cases, the circumstances of which were generally similar, the present learned Judge considered the question perfectly open, and decided the question without being concluded by either of the above-mentioned cases, and gave his opinion on the general authorities and principles, of which it is necessary to mention the following: By the ancient maritime law, The The In these cases the proceeding may be against the owner, the master, or the ship itself, the owners of a vessel doing damage were bound to CHAP. VI. make good the loss to the owners of the other vessel, The Volant. although it might exceed the value of their own vessel and the freight. For the purpose of enforcing this obligation, the owners of the damaged vessel might resort either to the courts of common law, or to the Court of Admiralty; and if they preferred the latter, they had their choice of three modes of proceeding, viz. against the owners, or against the master personally, or by a proceeding in rem against the ship itself. Court of Admiralty has jurisdiction over the whole subject-matter of damage on the high seas, and the arrest of a vessel is only one mode of proceeding. damage confers no lien upon the ship, but an arrest offers the greatest security for obtaining substantial justice, in furnishing a security for prompt and immediate payment. There may be cases in which it would be almost necessary to proceed in this Court, and in which there could be no other effectual remedy, although the ship could not be arrested; for instance, a foreign ship doing damage, where it would be impracticable to bring an action at law; the crew might be dispersed, and the expense of producing them as witnesses too onerous to be borne; or in case of the ship doing the damage being lost or sunk immediately after the collision, there is no reason why an action should not be maintained in the Admiralty Court, although the ship may not be arrested. The jurisdiction of the Admiralty Court does not depend upon the existence of the ship, but upon the origin of the question to be decided, and the locality. But if the proceeding be by arrest of the vessel, it is clear that if no appearance be given to the warrant arresting the ship, there can be no proceedings against the owners; the Court cannot know who are the owners, and cannot exercise any power over persons not personally cited to appear. "Where there is an them. If the proceeding be against the ship, and no appearance be given for owners, there can be no proceeding against The Volant. If in the same for them, and bail be given, they cannot be made further responsible. CHAP. VI. appearance to the action and bail given, as to the bail, the decree cannot be extended beyond what they, who are strangers to the cause, have voluntarily made themcase an appear. selves responsible for; but in a case where the owner ance be given has appeared, the question is, to what extent he has appeared to the process against the ship." The process decrees the ship to be seized, and cites all persons having, or pretending to have, any right, title, or interest therein, to appear in, &c. on, &c., there to answer in a cause civil and maritime. The owners are cited to their right, title, and interest in the vessel, and no further. If it were possible to demand bail beyond the value of the ship, or if the process went to make them responsible beyond such value, there is no reason why bail should not be commensurate with the damage, when the amount is not restricted by the statute. But if bail could not be demanded beyond the value of the ship, how can the owners in that proceeding be made further responsible? the warrant of arrest is confined to the ship: it goes no further. It was held, therefore, that there was no personal liability beyond the value of the ship, by reason that the original process obviously would not justify any such proceeding, and the appearance given by the individual could no more justify it, for he had appeared only to protect his interest in the ship; that to render a master part-owner, guilty of neglect, responsible beyond the value of ship and freight, he must be sued as master, and charged as the cause of the damage in the first instance; but, that that cannot be done, directly or indirectly, in another suit.* And thus to render a master part-owner guilty of neglect, responsible beyond the value of the ship, he must be sued as such in the first instance. an *The case of Wilson v. Dixon, reported in 2 Barn. & Adol., was particularly cited in this judgment. That was action against several defendants as ship-owners for damage sustained by the loss of goods taken on board their ship; and the question was, whether, under the 53 Geo. 3. c. 159. above mentioned, the carriers were liable beyond the value of the ship and freight, by reason that the master was part-owner, and the |