that can relieve him from making good the mischief which he has done." And he said that this was the case though the ship has been demised by the owner to another who has the appointment of the master and crew (d). The case anticipated by Dr. Lushington in The Ticonderoga recently came before Sir R. Phillimore, and was decided in accordance with the opinion of Dr. Lushington expressed in The Ticonderoga. In The Lemington (e) the vessel was chartered by her owners to a person upon terms by which the charterer had the scle and absolute management of her, and the appointment of her The charterer was to pay all expenses connected with the ship, and her owners were to receive one-fifth of her gross earnings. It was held by Sir R. Phillimore that the ship was liable in proceedings in rem. In this case Sir R. Phillimore said: crew. : "A vessel placed by its real owners wholly in the control of charterers or hirers, and employed by the latter for the lawful purposes of the hiring, is held by the charterers as pro hac vice owners. Damage wrongfully done by the res while in possession of the charterers is therefore damage done by the owners or their servants, although those owners may be only temporary. Vessels suffering damage from a chartered ship are entitled, primâ facie, to a maritime lien upon that ship, and look to the res as a security for the restitution. I cannot see how the owners of the res can take away that security by having temporarily transferred the possession to third parties. A maritime lien attaches to a ship for damage done through the negligence of those in charge of her, in whosesoever possession she may be, if that damage is inflicted by her whilst in the course of her ordinary and lawful employment, authorised by her owners. Whether the (d) The Ticonderoga, Swab. Ad. 215. The liability of the ship as opposed to that of the owner is strongly marked in French law; see infra, p. 77. (e) 2 Asp. Mar. Law Cas. 475. damage is done through the default of the servants of the actual owners, or of the servants of the chartered owners, the res is equally responsible, provided that the servant making default is not acting unlawfully or out of the scope of his authority" (ƒ). In a recent case it was held that a iug, towing a ship in charge of a compulsory pilot, was liable for a collision between the tow and a third ship caused entirely by the tug acting in obedience to the orders of the pilot, and without negligence on her own part or on the part of the ship in tow (g). It has not been expressly decided whether the lien for damage attaches in cases where the Admiralty Court has jurisdiction only under the recent statutes, 3 & 4 Vict. c. 65 and 24 Vict. c. 10. If the collision occurs within the body of a county, or if one ship is injured by the negligence of those in charge of another ship, without actually being in contact with the latter (h), the wrongdoing ship may be sued in Admiralty in rem, and there are strong grounds for holding that in these, as in other cases of damage, the lien attaches (i). But it is not in (f) See also The Emily, ubi sup., p. 31, where a barge, worked by the hirer's servants, was held subject to arrest; Cf. also The Phebe, Ware, 263. The charterer of a ship in the situation of The Lemington, supra, p. 34, is held to be entitled to owner's salvage reward: The Scout, L. R. 3 A. & E. 512; but the actual owner is entitled to owner's salvage, where, notwithstanding the charter, the ship remains in his, or his agent's, possession: The Collier, L. R. 1 A. & E. 83; The Waterloo, 2 Dods. Adm. 433. In France it seems that a ship in the position of The Lemington is liable to the sufferer by collision as guarantie speciale:" Manuel de Droit Commercial, par P. Bravard Veyrières, 7th ed., par Ch. Demangeat, p. 343. In America the ship is liable by Act of Congress of 3rd March, 1851; and the charterer who " mans, (g) The Mary, 41 L. T. N. S. 351. In this case the tug was in fact guilty of contributory negligence; so that the statement of the law as to her liability for the fault of the compulsory pilot was not necessary for the decision of the case. (h) As in The Industrie, L. R. 3 A. & E. 303; The Energy, ibid. 48. (i) The Two Ellens, L. R. 4 P. C. 161, 167. In America it has been held that a ship may recover in Common law action may be supplemented by action in rem, and vice versa. every case in which the ship may be sued in rem that the lien attaches (k); and there are cases in which the Admiralty Court has statutory jurisdiction, as in the case of damage by a ship to a pier (1), and certain collisions within a county (m), in which it does not appear to have been expressly decided whether the lien attaches (n). Where proceedings have been taken in rem in Admiralty, and the amount realised by the sale of the ship is not sufficient to recompense the sufferer, he may bring his action at law for the residue of his loss (o); and, vice versa, an action may be brought in rem for damages which, owing to the defendant's insolvency, were not recovered at law (p). If the owner of the ship arrested appears and defends the action, he may be compelled to pay costs (q), beyond the value of the ship and freight, or the amount of his bail bond. Whether an excess of damages can be so recovered is doubtful (r). But to an action in rem Admiralty the value of an anchor by the breaking of a ship's warp by improper straining is not within Admiralty jurisdiction: The Cygnus, 2 L. T. N. S. 196. (k) See The Pieve Superiore, L. R. 5 P. C. 482. (1) As in The Uhla, 3 Mar. Law Cas. O. S. 148; The Excelsior, L. R. 2 A. & E. 268; The Albert Edward, 44 L. J. Ad. 49; The Maid of the Mist, 21 W. R. 310, decided under the Court of Admiralty (Ireland) Act, 1867, s. 29. (m) See above, p. 31. (n) See The Two Ellens, L. R. 4 P. C. 161. (0) Nelson v. Couch, 15 C. B. N. S. 99; The Bold Buccleugh, 7 Moo. P. C. C. 267; The Orient, L. R. 3 P. C. 696, 702; The Pet, 20 L. T. N. S. 961. (p) The John and Mary, Swab. Ad. 471; The Bengal, ibid. 468; The Demetrius, 41 L. J. Ad. 69. (g) The John Dunn, 1 W. Rob.159; The Freedom, L. R. 3 A. & E. 495. (r) See The Kalamazoo, 15 Jur. 885; The Zephyr, 2 Mar. Law Cas. O. S. 146; The Hero, Lush. 447. proceedings in personam for the like purpose cannot be engrafted (s). law cannot be A verdict and judgment at law that one of two ships, Judgment at B., is in fault for the collision, and that her owners are pleaded in liable to the owners of the other ship, A., for their loss, is Admiralty. no bar to subsequent proceedings in rem against A. by the owners of B.; nor can they be pleaded or given in evidence in the Admiralty action (t). But a plaintiff who has been unsuccessful on the merits at law (u), or who has obtained payment of the sum for which he obtained judgment (x), cannot afterwards proceed against the ship in Admiralty for the same collision; nor would he be allowed to sue in Admiralty and at law at the same time for the same collision (y). In Admiralty a plaintiff can recover the whole of his No set off in Admiralty. loss without regard to any right of set-off to which the defendant would elsewhere be entitled (2). liable for of master or Owners are not liable for damage caused by acts of the Owners not master or crew not within the scope of their employ- wilful or ment (a); as where they wilfully drive their ship against criminal acts another (b); or cut another adrift (c). But for damage caused by non-observance by the master or crew of the Statutory Regulations for preventing collisions owners are (8) The Hope, 1 W. Rob. 154. (t) The Clarence, 1 Sp. E. & A. 206; The Friends, 4 Moo. P. C. C. 314, 321; The Velocity, L. R. 3 P. C. 44; The Calypso, Swab. Ad. 28. (u) See The Griefswald, Swab. Ad. 430, 435. (x) The Orient, L. R. 3 P. C. 696. (y) The John and Mary, Swab. Ad. 471. But if the remedy at law is insufficient, he may proceed in both actions; and an action in personam cannot be pleaded in bar of an action in rem: The Bold Buccleugh, 7 Moo. P. C. C. 267, 286; The Orient, L. R. 3 P. C. 696. An ordinary mortgagee may pursue all his remedies at once: (z) The Don Francisco, Lush. (a) Cf. 1 Parsons on Shipping (ed. (b) The Druid, 1 W. Rob. 391; crew. Collision caused by compulsory pilot or other person placed in charge by the law. Liability of part owners and joint liable, although under 25 & 26 Vict. c. 63 such nonobservance is a misdemeanour, and damage caused thereby is deemed to have been caused by the wilful default of the person in charge of the deck (d). And damages may be recovered against the owners although the negligence of their servants which caused the collision was criminal and amounted to manslaughter (e). Where a master, without any instructions from his owner as to assisting disabled ships, offered to tow a disabled ship to port, and whilst attempting to get her in tow negligently ran into her, it was held that he was acting within the scope of his employment, and the owner was held liable (ƒ). When a ship is being navigated under the orders of a person empowered by the Legislature to take charge of her, as when a compulsory pilot, dock, or harbour-master is in charge, the owner is not liable, provided there is no negligence on the part of the ship's officers or crew in carrying out the orders of the person in charge, or in performing the ordinary duties of the ship (g). In such cases it seems that the pilot or harbour-master is alone responsible. Attempts to make the harbour or pilotage authority liable for the negligence of a harbour-master or pilot, appointed or licensed by them, have been made without success (h). Part owners of a ship in fault for a collision are at law severally liable as joint wrong-doers, or joint employers of wrong-doers. the actual wrong-doer. One of them may be sued alone (i); (d) It was so held under the corresponding provisions of a former Act: The Seine, Swab. Ad. 411. Cf. Poulton v. London & S. W. Ry. Co., L. R. 2 Q. B. 534; and see Grill v. General Iron Screw Collier Co., L. R. 3 C. P. 476. (e) The Franconia, 2 P. D. 8, 163; Reg. v. Keyn, 2 Ex. D. 63. (f) The Thetis, 3 Mar. Law Cas. O. S. 357. (g) See below, Ch. V. (h) Dudman & Brown v. Dublin Port & Docks Board, Ir. Rep. 7 C. L. 518; Metcalf v. Herington, 24 L. J. N.S., Ex. 314; but see The Excelsior, L. R. 2 A. & E. 268. (i) Mitchell v. Tarbutt, 5 T. R. 649. As to the liability of part owners by the civil law, see supra, p. 31, note (z). By the maritime law of the middle ages a part owner was |