Ex. CH.] TOBIN . HARFORD. [Ex. CH. residue. Suppose she had started with the residue and landed none at Kinsembo, if I understand Mr. Mellish's concession right, the plt. would have been entitled to recover the whole amount. She would then have had on board her destined and intended cargo, and having put none of it out it would have been a cargo lost within the meaning of the policy and the assured have a right to recover the 80007. Does it not seem strange that, because besides what she takes out something more is landed at this place, they cannot recover the 80007. Suppose she had taken something on board at Kinsembo; suppose she had filled up with a variety of goods of small value, or had taken some on board, would she not have had her destined cargo on board? I suppose it is admitted that she would. It seems to me to be a little strange that taking out these few comparatively worthless goods at Kinsembo should make her have her cargo on board. Putting this construction on the policy and on the words of the body of it, as I have mentioned before, no one can say that it is an insurance of the goods that are on board. All these circumstances would have made me think-of course I cannot think so now, after the unanimous judgment of the Court of C. P. and of my learned brethren here-but all these considera tions would have made me think but for that, that this word "cargo was simply identical with the goods; and consequently that the true construction of the policy would have been in conformity with what Mr. Bovill contended. It is not denied to a certain extent that the agreement between these two parties meant, "We cannot tell from time to time what may be on board, therefore we will take it, from time to time, the goods that are on board are worth 8000l." That is the conclusion which I should have come to. Then, with respect to the authorities, I think they are in favour of Mr. Bovill's contention. I do not wish to go through them at any length. There is the case in East, of Shawe v. Felton, about the slaves who consumed the provisions. It is said there, that if the assured does not lose it in meal he loses it in malt; that if the slaves had gone to the bottom the parties would have had the benefit of the stores that had been taken out. But the court do not put it upon such a ground as that. Suppose it had happened that the slaves had been saved and the ship had gone to the bottom? [Bovill.-They were saved.] Mr. Mellish distinguished it upon that ground; then that ground fails him. The reasoning of the court there is very much to my mind in confirmation of Mr. Bovill's contention. In Forbes v. Aspinall, the case about the freight, there the court expressly say, that because the intended cargo is not on board, the whole of the freight is not the subject of the loss: they must take such a proportion as the cargo put on board bore to the intended cargo. I think that also is in Mr. Bovill's favour, because here the whole of the intended cargo was on board. Then a similar remark applies to the case of Carstairs v. Rickman. I think, if I had been left to myself, upon the authorities I should have decided this case in favour of Mr. Bovill. It is said, supposed that the parties have entered into an agreement to bring about that state of things, and therefore it is not altogether a fallacious argument. On the other hand people ought to construe documents not only in relation to extreme impossibilities, but also with reference to what is likely to happen, that although it might happen that there might be a couple of guns on board of the vessel when she went to the bottom, and the man would be a gainer by that transaction, yet that was not a matter that was very likely to occur. She would probably always have on board a substantial cargo, as in this particular case. At one place she might put out goods to a considerable amount, at another place she might take in probably what was worthless, but the probability is that she would always have on board a substantial and valuable cargo. But inasmuch as we have not delegated to us the power to make agreements for parties, but merely to construe the agreement for them, I think the best thing we can do is to consider what construction these parties have put on the agreement. I do not see that there is anything unreasonable in that. Then what construction ought it to receive? It is a policy on "ship and goods," and, manifestly, but for the statement of value, it is a policy upon whatever goods are on board at the time, because she is at liberty to put some out and take some in, and put them out again, and so forth. Therefore, it would be a policy on whatever goods are on board at the time, the ship being valued at 2000, and the cargo valued at 8000l. It seems a strange thing that it is so, making every allowance as I do for the unmethodical way in which the policy is drawn, that the body of the policy is on whatever goods are on board from time to time-that the introduction of the word "cargo," which I sincerely believe means no more than goods in the meaning of the parties, means that it is not to be a valued policy upon the goods, but that it is to be a valued policy on a sort of entity, or thing, which is called a cargo, and that you are afterwards to find what proportion the actual goods on board bore to the cargo. Then avowedly there is not only considerable difficulty in applying that when you come to construe this instrument; but it is an impossibility, because it certainly was conceded by Mr. Mellish that it does not mean a full cargo. If she took an incomplete cargo- | that is a word I ought not to use, because it may give rise to a mistake; but, if she took a partial or not a full cargo out with her, and was totally lost, it is conceded, as I understand, that the 8000l. would be recovered. So if lost on her final voyage home with not a full cargo, the 8000l. would have been recovered. Therefore, the word "cargo" here does not mean a full cargo. Then what does it mean; what other meaning shall I say can be given to it? I wish to do the parties justice, but I have some difficulty in doing so. It is said it is an intended cargo, or a destined cargo, or the cargo which it was right she should have at the time, and not an incomplete cargo. Why so? It possibly may be that if they got to a port and a quantity of cargo was there, and she had got some on board, but was afterwards blown out to sea and lost before she had got the residue, for aught I know you might then say there was not; the intended cargo in that sense was not lost. Therefore, you must apply the expression here used to such a case as that. Sup- am at a loss to understand the meaning of the posing that is so, why, in this particular case, had Court of C. P. confessedly acknowledging that this she not got on board her cargo? She had got on being a valid policy, must be left out of consideration. board everything that it was intended she should In what way they may suppose the 80007. is to be have there; she was not in a state of incomplete-paid I am at a loss to understand. However, I must ness in any sense; she had got on board all that of course concur with the judgment of the court. she was intended to have. She goes out with a great quantity of goods and lands some of them at this place, Kinsembo, and then she is lost with the if a construction were put on those words adverse to him, that would have made nonsense of the policy, because confessedly it cannot now be said that this is a valued policy. It is not a valued policy in reference to the matter that has happened. I BLACKBURN, J.-I would say a very few words, agreeing, as I do, with the majority of this court, [ADM. ADMIRALTY COURT. May 31 and June 14, 1864. (Before the Right Hon. Dr. LuSHINGTON.) Master-Appointment of Wages—Disbursements- that the Court of C. P. were right in their was decided in the court below. There comes a decision, and right also in what I understand further matter, had other produce been partially to be their reasons. With regard to the real point put on board, which would come, to my mind, to a to be decided, in my mind the fact that this is a question to be decided, and it might be a troublevalued policy is a mere accident, and has nothing to some one, whether that which was partially put on do with the question. think, if this was an open board was the whole of what was intended to be policy, the question of whether it was a total or a substituted, or only a part of it; and that would be partial loss is independent in this case, as, in my a very difficult question, not of law, but of fact. mind, it ought to be in every case, of the question When the question arises it will be time enough to whether the policy is valued or not valued. The consider it. But the court below had it evidently question in all cases is, what is the subject-matter present to their mind. They expressly point to that, that is covered by the insurance? Let us see by saying that it was sufficient to ascertain the whether the whole of the subject-matter is lost, in datum of what was the full cargo put on board. So it which case it would be a total loss; or whether only would be in this case if some other produce had a part is lost, in which case it would be a partial loss, been put on board, and the ship was lost. That the amount of which would depend on the propor- would be a puzzling question. I hardly know how tion which the part that was lost bore to the subject to get at this datum except by a compromise or matter of the insurance. Then, if that is a valued agreement between the parties. That does not policy, the value being admitted, the sum when re- affect the present case. It seems to me to be clear duced to figures is proved. If it be an open policy enough that what was lost was 43 per cent. of the you must prove the value of the whole subject- cargo and no more. That being so, I think the matter. Then it would come to the same result decision of the court below was perfectly right, for after it is proved, and it being a valued policy only the reasons I have stated. I think that a difficulty dispenses with the proof. However, in my mind may arise hereafter, but it will be a difficulty as to the question comes to be, what is the subject-matter the facts, which does not arise in the present case. of insurance in this policy? The policy itself is Judgment affirmed. made up, as every policy ought to be, of a printed form originally intended for an ordinary voyage policy altered to meet this peculiar African trade, and further altered into a time policy for six months. They get the old form of policy, and then some manuscript is left untouched and unaltered, and it is not very surprising that the document should be a little difficult to construe. Thus much appears clear enough, that this is a policy partly on the ship, with which we are not now concerned, and partly on the cargo. I think to my mind it is immaterial whether it said on cargo or goods; goods, I think, would mean cargo; cargo would mean goods. I do not think there is any great diffi-4 culty in them. It is the goods which on such a voyage would be all that are to be carried by the vessel as her cargo, and if it had been the word "goods" it would have meant that. The fact appears to be this, that this ship sailed on this time policy from Liverpool, and that it attached on this cargo which she had on board. The nature of the adventure on which she was bound to the coast of Africa was, that the cargo taken on board at Liverpool was intended to be substituted and exchanged by barter for cargo the produce of the coast of Africa. They have words in the body of the policy intended to meet that state of things, and which no doubt were framed in those terms when originally the natives were in the habit of carrying on the barter from their canoes alongside the ship, and as you parted with the European goods which they wanted to receive you obtained from the natives the produce of their country in exchange. The effect of that is, to say that if it had not been for the policy that would have applied to the goods put on board when the ship sailed, and is to continue to attach to what is substituted for it. There is the leave to barter, exchange and trade for goods, property and so on, and a variety of other words, the meaning of which is to say that this policy on the cargo that went out is to be also on the cargo that came in the place of it afterwards. In this case it appears that the cargo that went out from Liverpool to Africa arrived on the coast of Africa, and that 57 per cent. was safely landed, and the ship was lost with the other 43 per cent. on board. Nothing being substituted for the 57 per cent. which was left, it seems very clear that, as nothing had been put on board to take the place of that which was safely landed, the portion on which the risk had originally attached was only 43 per cent., and that in this case 43 per cent., and 43 per cent. only, was lost. That is in effect what master appointed by a person fraudulently in possession of the ship, has, nevertheless, if innocent of the fraud, a claim against the ship for his wages and dis bursements actually made by him on behalf of the ship. But he has no claim for ship's disbursements, for which he has only rendered himself liable, and which he has not actually paid. The Chieftain, 8 L. T. Rep. N. S. 120, followed. This case came before the court upon a motion to direct the answer to be amended in a claim for wages brought on behalf of James Smith, the late master of the Edwin, against the said vessel, her tackle, apparel, and furniture, and against Matthew Isaac Wilson, of Liverpool, shipowner, intervening. The petition for the plt. set forth that, in Sept. 1863, the Edwin, belonging to the port of Liverpool, was lying there under the sole control and management of Jacob Michael, of London, shipowner, as owner thereof, the said Jacob Michael having then, as the plt. was informed, recently purchased her from Edwin Holford, her former owner, who subse quently, in the same month, and at the request of Michael, executed a bill of sale according to the provisions of the Merchant Shipping Act 1854, thereby transferring to John William Michael, his son, the entirety of the ship, for the valuable considerations therein expressed to have been paid to Mr. Holford; that while the ship was so lying in Liverpool, Jacob Michael appointed the plt. as master, with wages at 157. per month, for a voyage from Liverpool to Quebec, and thence to some port in the United Kingdom, and accordingly, 4th Sept., Smith took command as master; that the ship was laden with a general cargo at Liverpool, under Michael's superintendence, and sailed on her voyage for Quebec, which she reached about the 2nd Nov.; that at Quebec, the master having, by order of J. Michael, discharged the cargo shipped at on the Liverpool, took in a cargo of wood goods, and sailed from thence to Queenstown (Ireland), where he called for orders; and that, shortly after his arrival there with the ship, a person from the office of Messrs. James Scott and Co. came alongside the vessel, and claimed to take the control thereof on behalf of M. I. Wilson, as her then owner; that the master thereupon communicated the alleged claim to Jacob Michael, who informed him that Wilson had no interest in the ship, and instructed him not to allow any person to take possession of her unless by force of some legal process; that the master then left Queenstown for Hull, where he arrived in Feb. 1864, and then engaged several hands to assist his crew in discharging the cargo there; that on the 7th of that month he was forcibly dispossessed of the ship by eighty men, acting in pursuance of an alleged power of attorney from M. I. Wilson, and that 767. 10s. or thereabouts, being the balance of wages earned by him as master of the ship on the said voyage, is now due, and he has been unable to obtain payment of it, or any part of it, from either J. Michael or M. I. Wilson, or any other person on their behalf; that in Nov. 1863, at Quebec, he made certain necessary disbursements on account of the ship, including insurances of the freight to be earned on the homeZward voyage, the said disbursements amounting altogether to 4801, in payment of which he drew a bill on Jacob Michael, who refused to accept it, and he (the master) has been sued for, and is advised that he is now personally liable to pay the same; and that he also made divers necessary disbursements on the ship's account at Queenstown, and at the Isles of Scilly, and at Deal, on his voyage from Queenstown to Hull. The answer on behalf of Matthew Isaac Wilson pleaded that in the month of Sept. 1863 one Edwin Holford was the true and registered owner of the Edwin, then lying at Liverpool; that in that month Jacob Michael, by fraud, obtained possession of the ship from Holford; that the fraud consisted, among other things, in the said Jacob Michael giving, as purchase-money for the ship, certain bills drawn by and in the name of John Wilson on and accepted by W. N. De Mattos, the payment whereof would become due in Jan. and Feb. 1864, and was further guaranteed by Jacob Michael, he well knowing that neither himself, nor John Wilson, nor De Mattos, would be able to pay the said bills at maturity; that the said bills were all dishonoured at maturity, and neither J. Michael, nor I. Wilson, nor De Mattos are able to pay the same, and Holford has received no money whatever for the ship; that the bill of sale was never registered, and was, by reason of the fraud, wholly void in law, and the possession of the ship by J. Michael was without the authority of the true owner, and wholly illegal; that in September Jacob Michael, being so illegally possessed of the ship, hired Smith to act as master, and that, on or about the 12th of that month, she sailed from Liverpool for Quebec; that whilst there the deft.'s house there acted as agents for the ship, and a cargo of timber on ship's account was there purchased, by order of Jacob Michael, of: the deft.'s house, under an arrangement between the deft. and Jacob Michael that payment for the said timber should be made by certain acceptances of De Mattos; that the ship sailed with a cargo of timber from Quebec about the 27th Nov. 1863, and that about the 7th Dee. De Mattos stopped payment, and the fraud of Jacob Michael was then, or shortly afterwards, discovered; that Holford was then under large liabilities to the deft., and on being pressed by the deft. for security, he, in the firm belief that the possession of the ship and the bill of sale had been fraudulently obtained from him by Jacob Michael, on the 11th or 12th [ADM. | Dec., executed a bill of sale of the ship to the deft., which was duly registered on the 12th Dec. 1863; that the deft. thus became the true and lawful owner of the ship, and the said Holford has since failed; that, before the arrival of the ship, Jacob Michael, J. W. Michael, and one Thomas Early Smith, obtained an injunction from the High Court of Chancery to prevent the deft. taking possession of her and the cargo, but that injunction was afterwards dissolved; and upon the arrival of the ship at Queenstown, the deft., as he lawfully might, endeavoured to take possession of the ship, but was prevented by the act of the master; and, on her arrival at Hull, he, on the 7th Feb. in this year, lawfully took possession of her and the cargo, and thereupon discharged the present plt.; and in the last article of the answer it was contended that neither the deft. nor the ship could be made liable in law either for the wages of the plt. or the disbursements (if any) made by him on ship's account, or in respect of any bill of exchange drawn by the plt. on Jacob Michael, and by him dishonoured. Tristram appeared in objection to the answer. V. Lushington in support. Dr. LUSHINGTON.-The question for the consideration of the court is, whether, assuming, as I must, all these facts to be true, the claim of the master to his wages is barred? The argument necessarily assumes that Michael, being in fraudulent possession of the ship, could not by any contract of his bind the ship or make the real owner responsible; and it goes the whole length of contending that the master, appointed by a fraudulent possessor, could not recover wages or disbursements. It is not alleged that the master was party to this fraud, and, of course, I must conclude that he was perfectly innocent of it. Now, can it be true, as a legal position, that a master so appointed could neither lawfully hire seamen or execute a bottomry bond, or do any other act necessary for the navigation of the vessel? I cannot assent to the truth of that proposition. No authority has been cited which appears to me to apply to this case; and, independent of authority, it appears to me that great injustice would arise from the maintenance of such a proposition. I cannot conceive anything more unjust than to subject a master utterly ignorant of the fraud to a forfeiture of his wages; and when the argument is pressed, as it has been, to a similar extent with regard to the seamen, it almost amounts to an absurdity. I shall not decide that by virtue of contract the master can recover his wages, but I shall refer to the immemorial custom of the Court of Admiralty, to look to the service done, and hold that, as the claim of the seamen is founded upon that service, and the summary petition in such cases always alleged service performed as the ground of the claim against the ship, so, by statute, the master has the same remedy as the seamen. The claim of the master therefore depends upon the service performed, wholly independent of contract, and the performance of the service, without fraud, constitutes a lien against the ship. For these reasons I shall direct so much of this answer as goes to the extent of alleging a forfeiture of wages to be expunged. With regard to disbursements, I must follow the same opinion which I expressed in the Chieftain (supra). By the 10th section of the Admiralty Court Act 1861, the court has jurisdiction to give a remedy for "disbursements" made by a master on account of the ship; but with regard to the liability of a master beyond that, however hard my decision may be, or with whatever severity it may operate upon him, I have no jurisdiction to give a remedy. With respect therefore to those averments in the last article of the answer which ADM.] H. M. S. THE TOPAZE. deny the plt.'s right to recover for his wages and disbursements actually made by him, the answer must be amended, but the rest of the averments in that article must remain, viz., those which assert that the deft. is not liable for bills of exchange drawn by the plt. and subsequently dishonoured, for money for the ship's use. June 11 and 14, 1864. | [ADM. helm to pass under the stern of the Promise without going over the Winter Rock, and thereby endangering the safety of Her Majesty's said ship; the said Commander Aylen thereupon starboarded the Topaze's helm, keeping as close as possible to the Asia Shoal; that the Promise improperly ported her helm, which brought her jibboom in contact with the Topaze's starboard quarter davits; that in order to prevent obstruction to Her Majesty's ships of war when coming into or going out of harbour at Devonport, it is customary for all Her Majesty's ships in the Hamoaze and Sound to have the pilot jack displayed at the foretop-gallant masthead whenever a ship of war belonging to Her Majesty is ships-proceeding to enter into or go out of harbour, in order to notify such fact to all merchant ships and private ships moving, and thereby to warn them to leave the Deep Water Channel open for the navigation of Her Majesty's ship of war, and such custom (Before Dr. LUSHINGTON and TRINITY MASTERS.) H. M. S. THE TOPAZE. Collision-New sailing regulations - H. M. Notice of particular customs. Neither the sailing regulations issued in pursuance of the Merchant Shipping Act 1854, nor those published under the authority of the Merchant Shipping Act 1862, are applicable to Her Majesty's vessels. Questions of navigation as between ships belonging to Her Majesty and those of private persons must be tried by the general rules of the sea. The powers, if any, of the Lords of the Admiralty under sailing regulations, must, to have any effect whatever, 54 Geo. 3. c. 159, s. 2, to vary by notice the general be exercised in strict conformity with the Act. was well known to the master of the Promise and The witnesses on both sides were examined rird 66 "Admiralty Superintendent. "Devonport, 30th July 1860." The following is the clause of the Act of Parlia ment under which the notice was given. 54 Geo. 3, c. 159, s. 2: This was an action of damage and was brought by the owners of the three-masted brigantine "Notice. The Lords Commissioners of the AdmiPromise 180 tons, from Newcastle (coal laden), forralty have directed, in order to prevent the harbour Devonport, against the Hon. J. W. Spencer, cap- channels at Devonport from being obstructed by tain of H. M. S. Topaze, 2659 tons burden, which vessels in motion when ships of war are entering or had arrived from the Pacific, and was about 1 proceeding out of the harbour, that the union jack p.m. on the 19th Dec. last, in Plymouth Sound, be hoisted on board any vessel moving as heretofore, proceeding for Devonport-harbour. The brigan- and in future the pilot jack will be displayed at the tine stated the wind as N.W., the steamer as same time at the foretop-gallant masthead of all Her N.N.W., and the weather was represented as fine Majesty's ships in commission in the Hamoaze and and clear, and it was almost slack water. The Sound whenever a vessel is proceeding into or out Promise alleged, that she was proceeding under all of the harbour. And their Lordships have also plain sail, close-hauled on the starboard tack, directed me to cause a notice of this arrangement to heading W. by S., and making about one knot, when be promulgated at the Custom-house of this port, the steamer was seen bearing about S. by E., distant &c., to warn any merchant vessel moving at that half a mile, whereupon the brigantine kept her time to be careful on the approach of a ship of war, course till the steamer approached, rendering a and that they steer as close to the shore as prac collision imminent, when her helm was put hard ticable, so as to keep the Deep Water Channel for the a-port, and the steamer with her starboard side, navigation of Her Majesty's ships. Which is hereby between the main and mizen rigging, struck the signified to all whom it may concern. jibboom of the Promise and carried it away, doing other considerable damage. The case for the Queen's ship was, that she was making about five knots, entering the Deep Water Channel between Winter Rock and Asia Shoal, and was in charge of Commander Aylen, Queen's Harbour Master, appointed pursuant to the provisions of the 54 Geo. 3, c. 159, to bring such vessels into harbour; that whilst the steamer was so proceeding, the brigantine Promise was seen near the south side of the Winter Rock, standing to the westward, right into and across the Deep Water or Man of War Channel, heading about W. by S. and making about two knots; that the Deep Water Channel is only 240 yards in width, and there was abundance of water over every part of the sound and on the shoals for vessels of the burthen of the Promise to pass over the same; that the Promise is a Plymouth trader, and it was well known to her master and those on board her that the Topaze was standing right into the Deep Water or Man of War Channel, and that there was plenty of water over every shoal in the Sound for the Promise to pass over; that Commander Aylen, on approaching the Promise, waved her to pass astern of the Topaze, but no attention was paid thereto; on the contrary, the Promise continued her course across the Deep Water Channel; that there was not room at such time for the Topaze to port her It shall be lawful for the Lord High Admiral, or three or more of the commissioners for executing the office of lord high admiral of the United Kingdom of Great Britain and Ireland for the time being, and he and they is and are hereby authorised and empowered from time to time as occasion shall re que, to make such rules, orders and regulations, in writing under his or their respective hand or hands, or the hand of his or their secretary, as he or they shall think proper, for the preanchoring and placing of all private ships of war, transports servation of His Majesty's moorings, and for the mooring, and all other private and merchant ships and vessels, lighters, barges, boats and other craft whatsoever, in all ports, harbours, havens, roads, roadsteads, sounds, channels, creeks, bays and navigable rivers of the United Kingdom so far as the tide flows and reflows, where or near to which His Majesty now hath, or where His Majesty, his heirs, or successors, may at any time or times hereafter have any docks, dockyards, arsenals, wharfs, or moorings; and harbour masters to be appointed as hereinafter mentioned, for superintending the same for the purpose of insuring free and safe ingress, egress and regress unto, into, to and from the said ports, harbours, havens, roads, roadsteads, sounds, channels, Majesty's said docks, dockyards, arsenals, wharfs and moorcreeks, bays and navigable rivers, and to and from His ings therein; and for that purpose to order and direct such spaces along the sides of, over, against, or near such docks, dockyards, arsenals, wharfs and moorings as they shall judge necessary to be kept open and free, and to cause the same to be marked out by piles, buoys, or other sufficient marks, and to order and direct what spaces and distances shall be appropriated to and for the sole use and purpose of moorings for His Majesty's ships and vessels of war and hired armed ships or vessels in His Majesty's service; and also to specify the distances from His Majesty's docks, dockyards, arsenals, wharfs, moorings, ships and hulks, within which no private ship of war, transport, or any other private or merchant ship or vessel, lighter, barge, boat, or other craft whatever, shall be moored, anchored, or placed, and for all and every or any other the purposes aforesaid; and also from time to time to vary and alter such rules, orders and regulations as occasion shall require for the purposes aforesaid; and also from time to time to appoint proper persons, to be called the King's harbour masters, to superintend such ports, harbours, havens, roads, roadsteads, sounds, channels, creeks, bays and navigable rivers, for the purposes aforesaid, and to enforce obedience to all such rules, orders and regulations, all which said rules, orders and regulations shall, upon the making thereof, and also from time to time whenever the same shall in any manner be varied or altered, be forthwith printed and published in the London Gazette, and being also printed and put upon pasteboard shall be constantly kept hung up in some open and conspicuous part of the Custom House or other place of public resort for business in the port, harbour, or haven, for which the same shall be made, or where the same shall be directed to be in force, to the intent that the same may be seen and read, and copies or extracts taken therefrom by all persons interested therein. Deane (Clarkson with him) for the Promise.-The Topaze was to blame. She is bound by Art. 15 of the new sailing regulations issued in pursuance of the Merchant Shipping Act Amendment Act 1862: (The Inflexible, Swa. 32.) Even if Her Majesty's ships are not bound by the regulations, the rule of sea applies, and the steamer should have given way. There is no valid custom requiring a vessel to keep out of the Deep Water Channel, when Her Majesty's ships are entering or leaving harbour. As to the rule, of which notice is said to have been given, the 54 Geo. 3, c. 159, s. 2, requires the signature of the Lords of the Admiralty or their secretary, but the notice is signed by neither one nor the other. Again, there was no publication in the London Gazette, as required by the Act. But, in point of fact, the section in question gives no power to issue such a rule; it has reference to mooring, &c., and not to sailing. [ADM. was utterly invalid. It was very doubtful whether there was any power given by the Act to make such a rule; and if there were, it was perfectly clear that almost everything which the Act required to make a rule issued under its authority binding had been omitted in the present instance. His Lordship, however, observed that, in holding that no such rule as the one set up existed, he by no means meant to question the propriety of some regulation to the same effect, supposing it issued in pursuance of an authority clearly given and with the prescribed formalities. Having disposed of these points, the learned Judge then went on to observe that the only rule which remained to guide the court in the decision of this case was the general rule of the sea as applicable to the facts proved in evidence. Ultimately, the Trinity Masters found that the Topaze was solely to blame for the collision-an opinion with which Dr. Lushington entirely concurred. June 8 and 14, 1864. (Before the Right Hon. Dr. LUSHINGTON). THE FUSILIER. Salvage of life-Jurisdiction-Contribution by owners of cargo. The payment of salvage is not governed by the ordinary rules which prevail in mercantile transactions on shore, but by a due consideration of the benefit received, combined with a just regard also for the general interests of commerce. It is a political as well as a commercial transaction. The words "persons belonging to such ship," in the Merchant Shipping Act 1854, include the passengers on board the ship as well as the master and crew, and therefore salvors are also entitled to remuneration for saving the lives of the passengers. Semble, that under the provisions of the Merchant Shipping Act 1854, the owners of cargo may be liable to contribute in respect of salvage of life, even though the salvors have rendered no direct benefit to the cargo. The old law as to remuneration for life salvage considered. The Queen's Advocate (the Admiralty Advocate with him) for the defts.-Capt. Aylen was duly appointed under 54 Geo. 3, c. 159, and proper instructions (supra) were given him. It is not necessary to publish those instructions in the Gazette. The This was a salvage suit brought by the steam-tug new sailing regulations published under the pro-Aid, the Ramsgate lifeboat Northumberland, and the visions of the Merchant Shipping Act Amendment luggers Champion and Lotus, and their respective Act 1862 do not apply to ships of war. Under the Merchant Shipping Act 1854, s. 4, Her Majesty's On the 3rd Dec. last it was blowing a most owners, against the ship Fusilier and her owners. ships are expressly excluded, except in certain violent gale from the north-west, and at about cases, as salvage, &c., and the Amendment Act 1862 does not alter this. 6.30 p.m. signals of distress were seen by the Even if the regulations do chief officer of the coastguard at Margate to apply to Her Majesty's ships, they are only appli- be fired from the Girdler, Tongue, and Prince's cable at sea and not in harbour. At all events, the Channel lightships. Information was telegraphed present deft. the Hon. W. S. Spencer, captain of the Topaze, is not liable; but commander Aylen, who to the harbour master at Ramsgate, who despatched was in charge of the Topaze. The Promise ought, 9 p.m., and upon rounding the North Foreland the steam-tug Aid with the lifeboat about at all events, to have altered her course when Capt. they were exposed to the violence of the gale, the Aylen waved her to do so. But she evidently had no look-out at all. At least, the notice is evidence bows being frequently under water; the lifeseas washing over the tug's funnel, and her of a custom for vessels to keep out of the Deep Water boat also experiencing great danger from the very Channel when the Queen's ships are going in or heavy seas, and although the tug's engines were out. Publication in the London Gazette is not made worked to their highest power, her utmost speed indispensable by the Act-not a condition prece- attained was only three knots per hour. After dent to the validity of the rule. unsuccessful attempts, until one a.m. of the next day to find the vessel, it was ascertained, from those on board the Prince's lightship, that there was a large ship aground on the Girdler Sand, towards which the tug and lifeboat then went, and when within half-a-mile of the vessel (which proved to be the Fusilier, from London, with a general cargo and ninety-five passengers) for Australia, the lifeboat was cast off from the tug and proceeded to the ship; two of the lifeboat's crew then boarded the ship, incurring risk in so doing, and were requested by Deane, Q.C. in reply. Dr. LUSHINGTON, in his address to the Trinity Masters, directed them that, neither the sailing regulations made in pursuance of the Merchant Shipping Act 1854, nor those in pursuance of the Merchant Shipping Act Amendment Act 1862, applied to Her Majesty's ships of war; that the custom contended for by the defts. had not been made out by the evidence, and that the rule attempted to be set up |