The Board of Trade may make any compromise it thinks fit, as to the damages, which are in each case of death or injury to be assessed at 301., and be the first charge on the aggregate amount for which the owner is liable, and be paid thereout, in priority to all other claims, to Her Majesty's paymaster-general, to be distributed and dealt with by him in such manner as the Board of Trade directs (p).

The Board, in directing the distribution, may, in the first place, deduct and retain any costs incidental thereto; in the next place, it shall direct payment of compensation, not exceeding in any case the statutory amount to each person injured; and as regards the sums paid in respect of deaths, payment thereof, for the benefit of the husband, wife, parent and child of the deceased, or any of them, in such shares, upon such evidence, and in such manner as it thinks fit (g).

Should the amount paid to the paymaster-general be insufficient to meet the demands upon it, the several claims thereon are to abate proportionally (r).

If after the completion of the inquiry any person estimates the damages payable to him in respect of personal injury, or of any death, at a greater sum than the statutory amount or compromise made by the board, he will, on repaying or obtaining repayment by the Board of Trade to the shipowner of such amount or compromise be at liberty to bring an action against him for damages, which shall be payable out of the residue only of the aggregate amount for which the owner is liable, after deducting all sums paid to the paymaster-general; and if the damages recovered by such person do not exceed double the statutory amount, he shall pay to the defendant all the costs of the action as between attorney and client in England and Ireland, and in Scotland as between agent and client (s).

In cases where several claims are made or apprehended against an owner for loss of life, personal injury, or loss or damage to ships, boats, or goods, the Court of Chancery and the High Court of Admiralty, whenever any ship or proceeds thereof are under its arrest (1), in England and Ireland, and the Court of Session in Scotland, and any competent court in a British possession, are empowered to entertain proceedings at the suit of such owner for the purpose of determining the amount of his liabilities (u), and for the distribution rateably of such amount, and to stop all actions and suits pending in any other court in relation to the same subject-matter.

The jurisdiction of the Court of Chancery under this section is simply to determine the amount of the shipowner's liability, and distribute that amount among the several claimants; not to decide the question of liability or non-liability.

It has been held that a shipowner who applies to a court of equity

(p) Sect. 509.

(q) Sect. 510. (r) Ibid.

(8) Sect. 511.

(t) 24 Vict. c. 10, s. 13. For the juris

diction and practice of the court before this
statute, see The Suracen, 2 W. Rob. 451;
the same on appeal, 11 Jurist, 255; 6 Moore,
P. C. 56. The Clara, Swab. 6.
(u) Sect. 514.

under this section must, in order to obtain its assistance, admit that he has incurred some liability (v).

A judgment in a cause of collision having been obtained in the Court of Admiralty against a ship, the value of which was insufficient to pay all the claims upon it of the persons interested in the ship and cargo which had been lost, the plaintiff in Admiralty was allowed to sell the ship, but ordered to pay the proceeds into court for equal distribution under the Act (w).

All sums of money paid for or on account of any loss or damage, in respect of which the liability of owners is limited by Part IX. of 17 & 18 Vict. c. 104, and all costs incurred in relation thereto, may be brought into account amongst part-owners of the same ship in the same manner as money disbursed for the use thereof (x).

8. Liability of Master and Seaman in those capacities.

And it is enacted, that nothing in the ninth part of the Act (relating to the liability of shipowners) shall be construed to extend to any British ship, not being a recognised British ship within the meaning of the Act, or to take away the liability to which any master or seaman, being also owner or part-owner of the ship to which he belongs, is subject in his capacity as master or seaman.

It is also enacted, that the owner of every sea-going ship or share therein shall be liable in respect of every such loss of life, personal injury, loss of or damage to goods, arising on distinct occasions, to the same extent as if no other loss, injury, or damage had arisen (y).

(v) Hill v. Audus, 24 L. J. Ch. 229.
(w) Leycester v. Logan, 26 L. J. Ch. 306.

(x) Sect. 515.
(y) Sect. 516.

CHAPTER VIII.

OF THE GENERAL DUTIES OF THE MERCHANT; AND HEREIN,

SECT. 1. How he is bound to use the Ship, p. 359.

2. Compensation to be made by him for not supplying Cargo, p. 360. 3. Of Primage and Average, p. 360.

1. How he is bound to use the Ship.

THE general duties of the merchant (those only excepted which relate to the payment of freight and of gross average, and which will form the subject of distinct chapters) are comprised in a very narrow compass. The hirer of anything must use it in a lawful manner, and according to the purpose for which it was let. The merchant must lade no prohibited or uncustomed goods, by which the ship may be subject to a detention or forfeiture (a); nor any goods which he knows, and the master does not know, and has not reasonably the means of knowing, to be of a dangerous nature, or of a nature, if not carefully stowed, to be injurious to other goods; without giving notice of their nature to the master, so that he may exercise his option of accepting or refusing them, and if accepted, stow them where they will not endanger the rest of the cargo (b).

In general, even in the case of affreightment by charter-party, the command of the ship is reserved to the owners or the master appointed by them, and therefore the merchant has not the power or opportunity of detaining the ship beyond the stipulated time, or employing it in any other than the stipulated service; but by the charterparties under which ships were formerly let to the East India Company, the command and disposal of the ship were reserved to the company, and the master, although appointed by the owners, was bound to obey the orders of the company at home, and of their factors and servants abroad; and it was always stipulated, that nothing should be paid by the company for freight or demurrage, unless the ship returned home in safety (c). Yet, in a case where the company detained a ship so long in India that she became unfit for the voyage home, and was disposed of there, so that, by reason of the particular stipulations, the owners could sustain no action at law upon the contract, a court of equity ordered the company to make a proper allowance for the actual and probable earnings and the value of the ship (d). So where a ship,

(a) Roccus, not. 85. Dig. 19, 2, 61, 1. French Ordinance, liv. 3, tit. 3, Fret, art. 9.

(b) Brass v. Maitland, 6 E. & B. 470; 26 L. J. Q. B. 49. Hutchinson v. Guion,

5 C. B. (N. S.) 149; 28 L. J. C. P. 63. Tarrant v. Barnes, 11 C. B. (N. S.) 553.

(c) See the clauses cited in Hotham v. East India Company, Doug. 272.

(d) Edwin and others v. East India Company, 2 Ven. 210.

hired by the company, to be employed according to the then usual terms of their charter-parties, in trade and warfare, was sent upon a service of observation and discovery, to explore the passage to the eastward of the Isle of Banca, and there struck on a rock, and was lost, and the owners brought an action against the company for thus exposing the ship to danger in a service not warranted by the charterparty without their knowledge or consent, Lord Kenyon, before whom the cause was tried, declared himself to be of opinion, that the action was proper in point of general principle, but the plaintiff's failed in their suit, because it appeared that the company's intention to employ the ship in this service was, before her departure from England, made known to the person who managed the ship on behalf of the owners, and not objected to on their part (e).

2. Compensation to be made by him for not supplying Cargo.

Some of the ancient maritime codes and more modern foreign ordinances (f) have fixed the payment to be made by the merchant who, having taken a ship to freight, declines to lade her in pursuance of his agreement, or who, before the commencement or during the course of the voyage, withdraws his goods from the ship, or, having hired a ship to go to a distant port, and engaged to furnish a cargo homeward, fails to do so, whereby the ship is forced to return empty; and have decided that in some instances the whole, in others a moiety of the sum that would have become due as freight shall be paid as compensation to the owners. But in all these cases the law of England leaves the amount of the compensation to be ascertained by a jury, if the parties cannot agree about it; and a jury will form their estimate upon a consideration of all the circumstances of the case, and of the real injury sustained by the owners, which cannot be properly settled by positive rules (g).

3. Of Primage and Average.

We have seen by a copy of the bill of lading (h), that the master undertakes to deliver the goods upon the payment of freight with primage and average accustomed.

(e) Lewin and others v. India Company, Peake's cases at Nisi Prius, p. 241. It was an action upon the case, and the plaintiffs were nonsuited; they afterwards brought another action in the Court of Common Pleas, which was tried before Lord Eldon, at the Sittings after Hilary Term, 1800, and were again nonsuited on the same ground. The terms of the charter-parties were afterwards altered, and the ships hired to be employed in trade and in warfare, and on any other service whatsoever.

(ƒ) Ordin, of the Hanse Towns, art. 11.

French Ordin. liv. 3, tit. 3, Fret, arts. 3. 6, 8, and 9, and Valin thereon. Guidon, ch. 9, art. 11. Code de Commerce, arts. 288, 291.

(g) The damages recoverable in an action for not loading pursuant to charter-party are the amount of freight which the ship would have earned if she had been loaded, minus the expense of earning that freight, and any sum the ship has actually earned elsewhere. Smith v. M'Guire, 3 H. & N. 554; 27 L. J. Ex. 465. Wilson v. Hicks, 26 L. J. Ex. 42. (h) Ch. 4 of this part, sect. 2.

The word primage denotes a small payment to the master for his care and trouble, which he is to receive to his own use, unless he has otherwise agreed with his owners (i). This payment appears to be of very ancient date, and to be variously regulated in different voyages and trades. In the "Guidon," it is called "la contribution des chausses ou pot de vin du maitre." It is sometimes called the master's hatmoney.

It has been held that primage is primarily payable to the master, and that he may maintain an action for it although the freight has been separately adjusted. If, however, by the contract between the owner and the master, the master is not to receive primage, he can maintain no action for it; and cases may also arise when a contract between the owner and shipper, which excludes primage, may be brought to the knowledge of the master, and prevent him from having any right to claim it (k).

The word average in this place denotes several petty charges, which are to be borne partly by the ship and partly by the cargo-such as the expense of towage, beaconage, &c. Some of the foreign ordinances specify the particulars that fall under this head, and the mode of distributing the charge (7), but with us they depend entirely upon usage, and an attempt to enumerate them would afford neither instruction not entertainment.

This and the preceding article of primage are often computed for a specific sum, or a certain per-centage on the freight.

(i) Scott v. Miller, 5 Scott, 15.

(k) Best v. Saunders, 1 M. & M. 208. Where the bill of lading expressed that the goods were to be delivered to the consignee, "he paying freight for the same as per charter-party, with primage and average accustomed," it was held that the master was entitled to receive primage from the consignee, although the contract between the shipowner and the agents of the consignee (there being no charter-party) was for 31. per ton freight, and did not notice primage; and although the master contracted

with the shipowner to receive a sum certain "in lieu of all cabin and other allowances." Ibid. See also Charleton v. Cotesworth, R. & Mood. 175.

(1) French Ordinance, liv. 3, tit. 7, Avaries, arts. 8, 9, and Ordin. of Stockholm, tit. Average, art. 1; 2 Magens, 277. Ordin. of Wisbuy, arts. 44, 56, 59, 60. Guidon, ch. 5, arts. 12-19; and Cleirac on the 24th art. of the laws of Oleron. But by the Code de Com., art. 406, the expense of towage, &c., is to be borne by the ship alone.