1. This is an application to amend the proceedings by adding the steam-ship 'Zuari' as an additional defendant, The defendants upon the record are her owners. I have already intimated my opinion that I ought to allow the amendment if I have power to do so. Should judgment be recovered by the plaintiffs, and should they fail to obtain satisfaction from the defendants personally, they would be entitled to take proceedings in rem against the ship to enforce their maritime lien-The 'Orient' L.R. 3 P.C., 696. Concurrent proceedings in rem and in personam could also be adopted by the plaintiffs: see The Mali Ivo L.R., 2 Ad. & E. 356 where the earlier authorities are referred to; but, if such proceedings were taken in different Courts, the Court, in which the later proceedings were taken, would have jurisdiction in its discretion to stay them until the termination of the earlier proceedings-The Peshawar 8 P. D p. 32. If the proceedings were taken in the same Court I presume that discretion would, as a rule, be exercised by amalgamating the two actions.
2. The foregoing remarks are made without reference to the provisions of the Civil Procedure Code. If without hardship upon the defendants the two proceedings can be included in the same action, it is obviously for the benefit of all parties that it should be done, rather than that the plaintiffs should be left to adopt separate proceedings. The plaintiffs did not, in the first instance, make the defendants' ship a defendant, (if I may use the expression), as she was then submerged in the harbour, which may be accepted as a fair reason for the course they have adopted. She has since been raised. The only suggested hardship occasioned to the defendants, which would not equally have been occasioned to them had the plaint been framed in the first instance in the manner now proposed, is that instructions for the drafting of a written statement have been prepared for counsel. It seems unlikely that these will require, except perhaps in the heading, any modification if the proposed amendment be allowed. At any rate, the matter is too puerile to stand in the way of the Court making the order asked for, if for other reasons it be expedient to make it. It was argued that the plaintiff had deliberately elected his remedy, and that having done so, he should not be allowed to change his mind. The above quoted authorities show that the question of election does not arise, as the remedies in rem and in personam are cumulative.
3. The main argument of the solicitor for the defendants was, however, based upon a passage in Coote's Admiralty Practice (2nd ed.), p. 23; where citing The Hope 1 W. R 154; see p. 158 and The Volant 1W R. 383 it is laid down that it is not competent for the Court to engraft proceedings in personam upon proceedings in rem. In those cases after judgment the proceeds of the vessel had proved insufficient to meet the damages awarded, and it was sought to supplement them by means of a motion against the master personally who had entered an appearance, and the Court held that the initial proceedings regulated the relief which it was competent for the Court to afford; and that the master's entering an appearance did not enlarge the scope of the proceedings in rem already adopted. A contrary decision had. been arrived at in the case of The Triune 3 Hag., p. 114. The later decisions, however, afford no ground for the contention that at an early stage and in a proper case the initial proceedings cannot be amended so as to bring them into the form which they would have assumed in the first instance, but for the ship not being, or not being supposed to be, amenable to the process of the Court.
4. The objection, that the claim against the ship and the claim against the owners of the ship are of such a distinct nature and enforceable by such different processes that the one cannot be engrafted upon the other, applies equally to commencing a composite suit in which such claims are united, and to adding the one claim to the other by amendment after the suit has been initiated. In principle, I am unable to see any reason why they should not be united. It is much the same as suing upon the covenant in a mortgage, and to enforce a lien upon the mortgaged property in the same suit, though in form the mortgaged property is not made, as it were, a defendant.
5. Is such a proceeding allowable according to the practice and procedure of the High Court? I am not aware that it could have been resorted to in the Court of Admiralty in England prior to the Judicature Acts. No case has been brought to my notice in which this has been done; and Mr. Inverarity, who argued the case for the plaintiff, stated that, on looking through the forms adopted by that Court and the headings of a large number of cases reported from it, he could find no instance in which a ship and its owners or masters have been jointly sued. The practice in the High Court of Bombay has been different, at any rate of late years, and it is usual here to make the ship and her owners defendants in cases of damage arising out of a collision: see The Augusta 10 Bom. H.C. R 110. In the cross suit brought by the defendants in the present case against the plaintiffs' vessel the plaintiffs, as her owners, have been made defendants jointly with their vessel, and that course is within my experience the usual one adopted. The question is, can it be sustained? If it can, principle and convenience alike, I think, demand its retention.
6. The rules regulating Admiralty practice provide that a suit shall be commenced by a plaint according to the provisions of the Code of Civil Procedure. They were framed when the Code of 1859 was in force, and when the power of the Court to regulate its procedure was more extended than it is at present. The rules subsequent to the one above referred to, provide for the taking out of a warrant of arrest when the suit is rem, and make no special provision when the suit is in personam; but Rule 54 directs that proceedings not provided for by the rules shall be regulated by the rules and practice of the High Court in suits brought in it in the exercise of its ordinary original civil jurisdiction. Though these rules do not apparently contemplate a suit in rem and in person am being combined, they do not expressly or by necessary implication forbid it. The Code of Civil Procedure of 1882 applies to proceedings on the Admiralty side of the High Court; Section 645 A shows that this is so.
7. Section 28 provides that 'all persons may be joined as defendants against whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative.' If the section applies in cases where a vessel is defendant, the question before me is solved. 'Person' includes any company or association or body of individuals, whether incorporated or not: see Act I of 1868, Section 2. Can it be held to apply to a vessel? I think it can. Section 48 provides that every suit shall be instituted by presenting a plaint. By Section 50 the plaint must contain (c) the name and description of the defendant. Unless a vessel be included in the term 'defendant' it follows that no suit in which relief is sought against a vessel can be instituted under the Code. I conclude, therefore, that the expression 'defendant' used in Section 28, includes a vessel, which for this purpose is invested with a persona, and I shall allow the amendment asked for. Adding a new defendant does not alter the cause of action, and the objection founded on Section 53 is without foundation. The plaintiffs must bear their own costs of, and incidental to, the actual amendment and to the obtaining of an order for that purpose. The costs incurred by both parties in arguing the question of the power of the Court to amend, must be made costs in the cause.