20%., shall be instituted against the ship, or master or owner, in any court of admiralty or court of record, unless, so far as relates to the remedy against the ship, the owner shall be bankrupt or insolvent or the ship be under arrest or sold, or so far as relates to the remedies against the person, unless a magistrate, acting under the authority of the Act, shall refer the same to be adjudged by a court of record, or unless neither the owner nor master reside at or near the port or the place where the service terminates, or where any seaman shall have been discharged." The reason of this provision is obvious, namely, that where difficulty occurs to prevent the seaman or the master from pursuing the statutory remedy or proceeding, then the common law right of action shall not be taken away. This alteration makes the remainder of the 16th section consistent and intelligible. Then the question still remains, how the words "no suit or proceeding for the recovery of wages are to be understood. Are they to be read "no suit by any person," that is, "by any seaman or representative," or "no suit by any seaman personally," leaving the personal representative at liberty to proceed in some other way? If we read the words "no suit shall be instituted" in the ordinary sense, neither executors or others could sue for wages of 20%., or less, in any case, save in the cases excepted at the close of the 16th section; and therefore, as it could never have been the intention of the legislature that the injustice should be committed of forfeiting altogether the wages due to the seaman by his death, in the non-excepted cases, we must modify and alter the language of one of the clauses, so as to avoid this consequence. We may do this, either by reading the 15th section as not confining the summary remedy to the seaman personally, but giving it to his personal representatives also, in which case the justice would have had jurisdiction: or we must read the 16th section as prohibiting any suit instituted by the seaman personally, in which case the personal representa 1849. HOLLING WORTH v. PALMER. 1849. HOLLING WORTH v. PALMER. tive might sue; and, in this case, the enactments of the 15th section would be perfectly reasonable in their ordinary grammatical sense. Looking at the previous enactments in the former statutes, and considering that the object of the 15th section, which gives the summary remedy, was to avoid the personal inconvenience to seamen, and bearing in mind that the prohibition to sue, in the 16th section, is substituted for the 16th section of the 5 & 6 Will. 4, c. 19, which was enacted for the purpose of preventing actions by the same parties, who could have proceeded before a magistrate, by depriving them of costs in those actions, we have come to the conclusion, although not without hesitation, that the more reasonable course is to modify the language of the 16th section, and that the prohibition to institute suits is to be limited to the seaman personally, and, consequently, that the remedy of the 15th section must be confined to seamen personally, and that the administrator has no right to apply to the justices. We therefore think the plaintiff entitled to recover on the second ground, that the magistrate had no jurisdiction. Such being our opinion, no decision is necessary with respect to the question, whether, under the circumstances of the case, the seaman did or did not acquire a title to the wages at all. The notice of action was clearly sufficient; and the verdict being for the plaintiff, that verdict will stand. Verdict for the plaintiff to stand. 1849. THE MASTER PILOTS and SEAMEN of NEWCASTLE-UPON- DEBT-T EBT.-The first count of the declaration was for money claimed to be due for primage from the defendant, as owner. The second count was for money due for primage July 6. A charter of James 2 granted to the mas seamen of New ter pilots and castle-uponTyne certain generally. The defendant pleaded "never indebted;" upon which dues, to be paid plea issue was joined. At the trial, before Cresswell, J., at the Summer Assizes 1848, at Newcastle, the following facts appeared:The plaintiffs sought to recover 127. 10s., alleged to be due to them for primage, on a quantity of lead, whereof they alleged the defendant to be owner, and which had been brought in a ship from beyond the seas into the Tyne and there landed. The plaintiffs claimed the duty as prescriptively payable to the Crown, and by a charter of James 2, which was made on the 1st of July in the 1st year of that king's reign, granted and confirmed to the master pilots and seamen of Newcastle-upon-Tyne and their successors. By that charter, the Crown "granted and confirmed to the master pilots and seamen of Newcastle-upon-Tyne, and their successors, that all persons being owners of any goods, which should at any time thereafter be brought in any ship from beyond the seas into the river of Tyne, should from time to time and as often as such goods should be so brought, pay to the said master pilots and seamen, and their successors, an ancient duty, theretofore lawfully, accustomably, and usually paid to the said mystery, brotherhood, and society, called primage, that is to say, 2d. for every tun of wine, oil, and other goods rated by the tun, (fish killed and brought in by Englishmen only excepted,) and 3d. for 66 " "by all persons being owners of any goods which should be brought in any ship from beyond the seas Tyne," in manner following, into the river "that is to say, aliens and strangers born, and other such persons who, with their ships, should arrive within the said port, and not belong to the same, before they depart with their said ships from the said port, should pay the duties aforesaid, and every free inhabitant of Newcastle, arriving with their said ships within the river Tyne, should pay the duties aforesaid with in ten days after the landing of the goods as aforesaid, upon lawful demand." The duties had always been paid by the importer:-Held, that a person who gratuitously landed, entered, and warehoused goods for the owners, who resided in London, was an owner' within the meaning of the charter, and liable to the dues. 1849. PILOTS OF NEWCASTLE v. HAMMOND. every last of flax, hemp, pitch, tar, and other goods rated THE MASTER by the last, in manner following; that is to say, aliens and strangers born, and other such persons who with their said ships should arrive within the said port and not belonging to the same, before they depart with their said ships from the said port, should pay the duties aforesaid, for and in the name of primage; and every free merchant and other inhabitant of Newcastle, arriving with their said ships within the said river of Tyne, should pay the duties aforesaid within ten days after the landing of the said goods as aforesaid, upon lawful demand by the said master pilots and seamen, which said duty called primage should be to the only use, commodity, and profit of the said master pilots and seamen, and their successors." The goods in respect of which the primage was claimed from the defendant had been brought from parts beyond. the seas, in a ship of which the defendant was not owner, into the river of Tyne, and he, as importer there, landed, entered, and warehoused them. The goods, at the respective times of their being so imported, landed, and warehoused, belonged to Messrs. Pinto & Co., merchants in London, for whom they had been so landed, entered, and warehoused by the defendant gratuitously. It was proved that the duties had always been paid by the importer. The learned Judge thought the defendant liable to pay the primage, and directed the verdict to be entered for the plaintiffs, giving the defendant leave to move to enter a nonsuit if the Court should entertain a different opinion. In Michaelmas term last, Martin obtained a rule upon the point reserved; he also moved for a rule, on the ground that the learned Judge had misdirected the jury in telling them, that, upon the facts, they might presume the immemorial existence of the right from modern usage; but the Court refused the rule upon the latter point, upon the authority of Jenkins v. Harvey (a), holding the case to fall (a) 1 Cr. M. & R. 877. precisely within the principle of that decision. A rule nisi having been granted upon the other point, Knowles and Watson shewed cause (a).-The defendant was liable to pay the primage as "owner," within the true meaning of the charter. The word "owner" is not to be taken in its strictest sense: it has no legal meaning. Littledale, J., in Lister v. Lobley (b) says, "As the words owners and proprietors' here, have no definite legal signification in themselves, we must take them to mean parties who have any interest." The defendant was the ostensible owner; and the case is not affected by the fact of his being a gratuitous bailee: Rooth v. Wilson (c). In such a case trover will lie: Nicolls v. Bastard (d). And the same rule holds good where articles are stolen. Moreover, the defendant entered these goods at the Custom-house and executed the usual bond, reciting, that "he hath in his warehouse," &c. The plaintiff's argument is fortified by the consideration, that, if the word "owner" were to be construed to mean the absolute owner, great difficulty would arise in finding out the real party to be made liable; for in many cases the owner lives at a distance. If there be any doubt as to the meaning of the word in dispute, the usage ought to be looked at. By that usage, the defendant is the person liable. The case of Vinkestone v. Ebden (e), is strongly in the plaintiff's favour. There it was held, that the master of a ship carrying coals is the importer, and that his goods are liable to a distress for non-payment of the port duties of Newcastle. Martin and Unthank, in support of the rule.-The term 1849. MASTER PILOTS OF NEWCASTLE บ. HAMMOND. |