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Colonial Cases

The Craiglands, 1881

The Craiglands


Mowat J, 2 June 1881

Source: North China Herald, 3 June 1881

2nd June.


Before R.A. MOWAT, Esq.

Re Barque Chinaman.

  Mr. WAINWRIGHT appeared for the owners of the Craiglands.

  Mr. DUMMOND appeared for the representatives of the Chinaman.

  This was a motion on behalf of the defendants in this suit against the s.s. Craiglands, arising out of the sinking of the barque Chinaman by that vessel, that all further proceedings should be stayed, and that the plaintiffs should be required as condition of obtaining payment of the damages awarded to them to claim payment in an action for limitation of liability which had been instituted in England in the Admiralty Division of the High Court of Justice on behalf of the owners of the Craiglands.  The application was supported by an affidavit by Mr. Wainewright, the solicitor of the defendants, in which he deposed that he had been informed by Messrs. Pritchard & Sons, the owners' solicitors in England, that an action for limitation of liability had been commenced and was pending, and that they had telegraphed him that on the 3rd of May an injunction had been granted by the High Court of Justice staying all other actions in regard to the collision, and that the order for such injunction was despatched from London to Shanghai by the mail of the 15th May.

  In supporting the application, Mr. Wainewright pointed out that two points were involved; first, whether the High Court of Justice could restrain proceedings here, and second, whether a telegraph was sufficient for the Court to act upon.  Upon the first point he referred the Court to Section 514 of the Merchant Shipping Act of 1854, and sections of subsequent Acts extending its provisions.  On the second head the learned Counsel referred to re Bryant, L.R. 4 Ch. D., 98.

 His LORDSHIP thought that as at present advised, he thought that at any rate the motion should not be disposed of till the arrival of the mail by which the order for the injunction was stated to be coming.

  Mr. DRUMMOND, in consequence of his Lordship's intimation, after a few remarks with a view to contend that a telegram was not a sufficient evidence of an order having been made proceeded to  argue that in any case the payment of the costs should not be suspended.  In support of this contention, he read several passages from Pritchard's Digest.

  His LORDSHIP decided that the case should stand over till after the arrival of the mail of the 13th May, due here about the 21st inst., and the point as to the payment of costs he would take into consideration.


Source: North China Herald, 10 June 1881



Shanghai, 8th June.

Before R. A., MOWAT, Esq., Acting Chief Justice.


Re The Craiglands.

  Mr. WAINEWRIGHT for the defendants.

  Mr. DRUMOND for the plaintiffs.

  This was an application by the defendants that all further proceedings in this suit be stayed by order of the Court, and that the plaintiffs be required as the condition of their obtaining payment of an part of the damages awarded them in the suit to claim payment of the same in the action for limitation of liability instituted in the High Court of Justice on behalf of the owners of the steamship Craiglands, the defendant hereby offering and undertaking to pay all reasonable and proper costs occasioned to the plaintiffs by such procedure, and that the bail already given in the suit stand as security to the plaintiffs until the further order of the Court.  The application was heard on the 2nd instant, and judgment was delivered today.

  His LORDSHIP said: I intimated at the hearing of the application that I was disposed to postpone its consideration until after the receipt here of the injunction referred to in the affidavit filed in support of the application.  I was asked, however, by the Counsel for the plaintiffs to exempt from any order that I might make the question of their costs in the suit which they had successfully instituted here, on the ground that even if at the hearing I should grant the application staying further proceedings here generally, the right to take proceedings for the recovery of their costs should be saved to them, inasmuch as in  suits for limitation of liability the plaintiffs in such suits have to pay, in addition to the amount of the statutory limit, the costs of the plaintiffs in the earlier (damage) suits.  No case was stated on the points, and I accordingly took time to refer to the authorities.

  I find in the books a series of decisions as the point came up under the successive Acts for the limitation of the liability of ship-owners.  One of the earliest cases is the Dundee (2 Hagg. 137) in 1827, in which Lord Stowell says, at page 143,

The claimant is entitled to remuneration for the costs to which he is driven for recovering his loss; they certainly form a part of that loss, and the Statute (53 Geo. III., c.159, which limited the shipowner's liability to the value of the ship, appurtenances, and freight) "is not guilty of that injustice which would ensue if it excluded those costs that are necessary for replacing the sufferer in a just state of compensation."

In that case bail had been given to answer damages and costs, but in the next, in 1840 (The John Dunn, reported 1 W. Rob. 159), the ship had been sold, and the proceeds distributed among the injured parties.  It was argued for the ship-owner that he could not in addition be ordered personally to pay the costs of the plaintiffs in the damages suits, but it was decided against him by Dr. Lushington, and the Court of Queen's Bench agreed in that view, for they discharged a rule for a prohibition to the Court of Admiralty in the matter. (Ex parte Rayne, 10 L.J. Q.B. 354.)  The Volant in 1842 (1 W. Rob. 383) is another case under the same Act: at page 390 Dr. Lushington says -

If the liability of owners was limited to the value of the ship itself, whatever the amount of costs, it would be their policy to litigate every case, in order to deprive persons suing them of any benefit of a decree by reason of the costs incurred obtaining it."

  The cases under the next Act on the subject, the Merchant Shipping Act of 1854, were  African Steamship Company v. Swanzy (25 L.J. Ch. 870) in 1856, where the plaintiffs in the limitation suit were held bound to pay to the defendants the costs in the previous suits in addition to the value of the offending ship; Leycester v. Logan (26 L.J. Ch. 307) in1857, where an owner of part of the cargo in the sunken ship, who had obtained judgment in the Admiralty Court, was restrained "from taking any further proceedings in the  Admiralty Court, subject to his being at liberty to sell the ship and to retain out of the proceeds such costs as he might be entitled to in the Admiralty Court," the balance of the proceeds being paid into Court for distribution among the various claimants; General Iron Screw Collier Co v., Schurmanns (29 L.J. Ch. 877 in 1860, where an injunction was granted on the terms of the plaintiffs, the owners of the ship that had been found in fault, "undertaking to pay the defendants" (the owners of the other ship and of the cargo) "such costs as have been ordered to be paid to them by the Court of Admiralty;" and Nixon v. Roberts (30 L.J. Ch. 844) in 1861, where the plaintiffs, in their bill for limitation of liability and for an injunction, undertook to pay the value of the ship together with the costs in the Admiralty Court of the owners of the lost ship.

  Under the Act at present in force (the Merchant Shipping Act Amendment Act, 1862) there have been amongst others, the following decisions:- The Spirit of the Ocean (Br. And Lush. at p. 340) in 1865, where an order was made staying proceedings on payment in to Court of the statutory limit of 8 Pounds per ton and of the costs incurred in the damages suit; The Northumbria (L.R. 3 Adm. And Ecc. 5) in 1868, in which the Counsel for the plaintiffs in the limitation suit, while disputing the liability to pay interest upon the amount of the statutory liability, admitted that the plaintiffs were liable to pay the costs of the defendants in the damages suit; London and S. W. Railway Co. v. James (L.R. 8 Ch. App. 241) in 1872, where the costs of the proceedings in Admiralty, applied for on the authority of the African Steamship Co., v. Swanzy (one of the cases already referred to), were given; and The Sisters ]L.R. 1 P.D. 281) in 1876, where the Court made a decree limiting the liability to 15 Pounds per ton and to the costs incurred in the damages suit and in the limitation suit.

  It will be seen from this review of the authorities that the costs in damage suits are in all cases superadded to the amount of the statutory limit, and it follows from Leycester v. Logan in particular that if the petition for limitation of liability by the owners of the steamer Craiglands had been filed in this Court, I would not have restrained the owners of cargo from taking proceedings to get their costs.  I therefore think that I ought not to restrain them, when the petition for limitation is filed in England.  The order that I will make on the application will accordingly be to stay all proceedings in this suit until the 27th instant, with the exception of such proceedings as the plaintiffs may be advised to take for the recovery of their taxed costs in the damage suit.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School