CHAPTER IX. PROPERTY LIABLE FOR COLLISION DAMAGE; AND LIMITATION OF LIABILITY. THERE are two limitations to the amount of damages recoverable in the Court of Admiralty; the first, resulting from the nature of the procedure in that Court, which is for the most part a procedure in rem; the second, resulting from the operation of statutes passed for the protection of ship owners. liable to 1. Proceedings in the Court of Admiralty are Property usually commenced by an arrest of the ship, and a arrest. seizure of the freight. The ship, if not bailed, will be sold by a decree of the Court; and the proceeds of it, together with the amount of freight thus appropriated, constitute the fund out of which compensation is to be made for the injury done. Thus, in cases where the owner of the ship in fault is bankrupt, or resident out of British jurisdiction, the amount of compensation is necessarily limited by the amount of the fund available for that purpose. In the first place, the ship, with all her tackle The ship. and appurtenances, is liable to Admiralty arrest. The freight. Sails and rigging which have been detached from the ship, and sent ashore for safe custody or for the purpose of being repaired, are likewise liable to arrest (a). A sailmaker with whom sails have been left to be repaired, though he has a lien on them as against the shipowner, has no right to retain them against an Admiralty warrant (b). It appears that the fishing tackle of a whaler is to be treated as part of the "appurtenances" of the ship (c). Secondly, the amount of freight due to the shipowner at the port of destination is liable for collision damages (d). If any portion of the freight has been paid in advance, under the terms of a charterparty by which such advance constitutes an absolute prepayment, transferring the risk of the voyage to that extent from the shipowner to the charterer, in that case it is only the balance remaining due which can be arrested (e). Supposing that a vessel has been chartered, and then sublet by the charterer at a higher rate of freight, it may be a question whether the larger amount is liable to seizure, or only the amount belonging to the (a) Alexander, 1 Dods. 252. (b) Harmonie, 1 W. Rob. 177. (d) If, however, between the date of the collision and the arrest of the ship, the ship has been sold, then, although the right of the claimant follows the ship, so that he may take her from the purchaser, he cannot make the purchaser responsible for the amount of the freight which has never come into his hands (Mellona, 3 W. Rob. 25). (e) Leo, 1 Lush. 446, shipowner. Since it is the shipowner, and not the charterer, who is liable for collision damage, it would seem on general principles that the power of seizure, whereby a species of pledge is taken to secure that liability, ought to be confined to that portion of the freight which belongs to the shipowner. On the other hand, it has been decided that, where the bill of lading freight exceeds the charter rates, the larger amount is liable to Admiralty seizure under a bottomry bond (a). The liability under a bottomry bond, however, stands on a somewhat different ground from the liability for collision damage. A shipmaster has power to raise money on bottomry on the security of property not belonging to the shipowner he may pledge the cargo; he may therefore pledge the chartered freight; and, when he has expressly pledged the freight, it is reasonable to suppose that that expression is to be read as meaning the entire freight. It does not follow that the freight belonging to the charterer is liable to seizure for the debt of the shipowner (b). not to be Although for several purposes, as for example in Crew's wages the case of a bottomry bond, the seamen have a deducted preferential claim upon the proceeds of the ship freight. from the (a) Eliza, 3 Hagg. 87. (b) Freight does not become liable for collision damage until it has been earned, that is, until the termination of the adventure. Thus, where a foreign ship, bound with cargo from Havana to Hamburg, was arrested in a collision suit in Plymouth, where she had put in, it was held that the cargo could not be arrested in respect of freight, as no freight was at that point due (Flora, 11 Mitch. 240). and the freight in respect of the wages due to them, it appears that, at all events if the owner of the ship is a foreigner and not bankrupt, they have no such right as against the claimant for collision damage. In the case of the Linda Flor, where a foreign ship had been arrested and sold for damages in a collision suit, and the proceeds with the freight were insufficient to satisfy the demand, the claim of the crew, to have their wages first paid out of such proceeds, was rejected. The grounds assigned were, that, as the crew had a right of personal action against the shipowner for their wages in addition to their right of lien, whereas the claimant of collision damage had no such personal remedy against the foreign shipowner, less hardship would result from taking away the benefit of the lien from the former than from the latter. These," said Dr. Lushington, "constitute the grounds of my decision. It is, however, not to be forgotten that, in all these cases of damage, or nearly all, the cause of the damage is the misconduct of some of the persons composing the crew. This is not the case of a bankrupt owner; it will be time enough to consider such a case when it arises" (a). It may be doubted whether the same rule applies when the owner of the ship is domiciled in Great Britain; since in that case the reason which in the (a) Linda Flor, 4 Jurist, N. S. 172. See also, to the same effect, Benares. 7 Notes of Cases, suppl. 1.; Duna, 5 L. T. N. S. 217. Linda Flor was assigned as the principal ground of the decision is not applicable; the claimant for collision damage having the right, should the proceeds prove insufficient, to recover the deficiency by a suit at common law (a). by Act of II. The second limitation to the liability of a Limitations shipowner for collision damage is that imposed by Parliament. Act of Parliament. "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 to them” (b), the English Legislature has from time to time imposed an arbitrary limit to the amount for which an English shipowner shall be made liable, even personally, for damages resulting from the negligence of his servants. That limit, until recently, was fixed at the value of the ship and amount of freight (c). (a) Triune, 3 Hagg. 114. (b) Carl Johan, cited 1 Hagg. 113. (c) The law of England is, to this extent, assimilated to the sea laws of most European countries, which, speaking generally, limit the responsibility of a shipowner for all debts not springing out of his own personal engagement to the value of his ship and the freight. There is, however, one important difference. The English law, as interpreted by the judges, limits the owner's liability to the value of the ship immediately before the collision, that is, in her undamaged state; whereas, the general continental rule is, that the owner may discharge himself from personal liability by abandoning |