Richard Garth, C.J.
1. This is an appeal from a judgment of Mr. Justice Norris in a cause depending on the Original Side of this Court in its vice-admiralty jurisdiction.
2. It was a suit in rem, promoted by the master of the British ship 'Nevada' against the 'Mary Stuart' for damages sustained by the 'Nevada' under these circumstances.
3. The 'Mary Stuart' is a steam tug belonging to the Port of Calcutta, of which Captain Thomas was the master.
4. She was hired on the occasion in question to tow the 'Nevada' down the river; and it was alleged by the promovent that in consequence of the negligence of the master of the 'Mary Stuart,' and of his wilful disobedience of orders, which he was bound to obey, the 'Nevada' ran foul of a vessel, called the ' Savoir Faire,' and considerable damage was caused to both vessels.
5. The 'Savoir Faire' took proceedings against the 'Nevada' for the damages which she sustained in the collision; and this suit was brought against the 'Mary Stuart' to recover those damages, as well as compensation for the injury which the 'Nevada' herself had sustained.
6. The answer made by Mr. Sutherland, who was the owner of the 'Mary Stuart,' was two-fold:
1st.--That the master of the tug had been guilty of no negligence; and
2ndly.--That the tug was protected by Clause 22 of the Contract of Towage, which had been entered into by the owners of the tug with the 'Nevada's' agents.
7. That clause was part of a general form of contract which was used by the proprietors of the 'Mary Stuart' in all cases when their tugs were employed, and it was in these words:
The proprietors are not to be responsible, under any circumstances, for any loss or damage which may be sustained or occasioned by any vessel whilst it is in tow of any of their tugs, whether the same shall have happened through the act or default of the master of the tug, or any engineer, or other servants, or otherwise, or through the incompetence or want of skill or care of the pilot in charge of the vessel.
8. The trial took place before the learned Judge and two nautical assessors; and as to the first question they decided that the collision took place through the improper conduct of the master of the tug in wilfully disobeying the orders of the pilot on board the 'Nevada,' which orders he was bound to obey. And with regard to the other question arising upon the 22nd Clause of the Contract of Towage the learned Judge decided:
1st.--that the misconduct of the master was a default within the meaning of the clause; but
2ndly.--that as this was a proceeding in rem, and not against the proprietors, the clause was no answer to the suit.
9. The Court therefore pronounced in favour of the 'Nevada,' and it was referred to the Registrar to ascertain the amount of damages.
10. From this judgment the impugnant has appealed upon the second point only; and it has been contended by Mr. Sale on his behalf, that, as the proprietors would be the sufferers, if the tug were held responsible, the clause in question was intended to, and did in point of law operate to, protect them.
11. Having heard this point fully argued, and having taken some time to consider my judgment, I had at first arrived at a conclusion in favour of the respondent.
12. It seemed to me that the towage contract, which consists of certain regulations, prepared by the owners of several tugs in the Port of Calcutta, is of a very one-sided character.
13. I think that it should be read most strongly against the owners of the tug; and that, as regards the protective clause, with which we are dealing, its meaning and effect ought not to be extended beyond what its language strictly warrants.
14. Having regard to the circumstances which occurred in this case, the owners of the 'Nevada,' in the absence of any agreement to the contrary, would have had three remedies:
1st.--They might have sued the master of the tug;
2ndly.--They might have sued the proprietors of the tug; and
3rdly.--They might have taken the course which they did, and sued the tug itself in a maritime Court.
15. That being so, it seemed to me that, according to the strict language of the clause in question, the proprietors were protected against one only of these suits.
16. The clause would clearly have been no answer to a suit against the master; and I was unable to see why it should afford any answer to a suit against the ship, unless the liability of the proprietors, and the liability of the ship, meant substantially the same thing.
17. There are undoubtedly many cases of collision, where the ship would be liable, and the owners would not; as, for instance, where a ship is chartered out and out, so that not only the possession of the vessel, but the appointment of the master and crew is vested in the charterers. No action: could then be brought against the owners for damage caused through the improper management of the ship, although a suit might be brought against the charterers, or proceedings in rem might be taken against the ship. See Scott v. Scott 2 Stark 438 and the Ticonderoga Swab. 215.
18. And as a proof that the responsibility of the owners is a different thing from the responsibility of the ship, it has been held that a verdict in a Court of common law is no bar to proceedings against the ship in a maritime Court for the same collision; or, on the other hand, that a judgment in rem, and an actual sale of the ship in the Court of Admiralty, is no bar to an action against the owner in a Court of common law. See Nelson v. Couch 15 C.B.N.S. 99 and The Bold Buccleugh 7 Moo. P.C.C. 267.
19. I had, (sic) therefore, as I had come to the conclusion that the view taken by the learned Judge in the Court below was right, and as my learned brother and myself differed in opinion, we considered it would have been necessary that the case should be heard by a third Judge.
20. Mr. Justice Pigot, however, has been kind enough to refer me to a case lately decided in England, which appears to solve the difficulty, and has satisfied me that my first impression was wrong.
21. It is a case of The Parlement Beige L.R. 5 P.D. 197 in the Court of Admiralty in England.
22. The question there was, whether a ship belonging to the Belgian Government could be proceeded against for a collision in the English Court of Admiralty.
23. It was admitted that the Belgian Government, who were the owners of the ship, could not be sued, in an English Court; but it was concluded that, notwithstanding this, the ship itself was liable to proceedings in rem.
24. Sir Robert Phillimore in the Court of Admiralty held that the ship was liable. But on appeal to the Lords Justices his judgment was reversed. Their Lordships were of opinion that although in every case of a proceeding in rem, the suit is directly against the ship itself, still the owner of the ship must always be considered as indirectly impleaded. The owner, according to the rules of the Admiralty, has always notice to appear to show cause why the ship should not be liable; and their Lordships observe that, unless the owner were thus impleaded, and had an opportunity of protecting his property from the Court's decree, a judgment in rem would be contrary to natural justice.
25. Lord Justice Brett, who delivered the judgment of the Court, proceeds to say:
In a claim made in respect of a collision, the property is not treated as the delinquent per se. Though the ship has been in collision, and has caused injury by reason of the negligence or want of skill of those in charge of her, yet she cannot be made the means of compensation, if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to show that the liability to compensate must be fixed, not merely on the property, but also on the owner through the property. If so, the owner is at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the Court. It is no answer to say that if the property be sold after the maritime lien has accrued the property, may be seized and sold as against the new; owner. This is a severe law, probably arising from the difficulty of otherwise enforcing any remedy in favour of an insured suitor. But the property cannot be sold as against the new owner, if it could not have been sold as against the owner at the time when the lien accrued. This doctrine of the Courts of Admiralty goes only to this extent, that the innocent purchaser takes the property subject to the inchoate maritime lien, which attached to it as against him who was the owner at the time the lien attached. The new owner has the same public notice of the suit, and the same opportunity and right of appearance as the former owner would have had. He is impleaded in the same way as the former owner would have been.
26. It seems to me that the point thus decided by the Lords Justices is precisely the same as that which we have to determine here. It was admitted in that case, as it is here, that the owners were not personally liable to be sued for the collision, and the question was whether, the owners not being liable, the ship could be made liable. Their Lordships decided that question in the negative, and I am bound to say that, irrespective of the high authority of the Lords Justices, and especially of Lord Justice Brett, who, on such a subject, is probably the best authority we have, the extract, which I have just read from his Lordship's judgment, appears to me quite unanswerable.
27. I think, therefore, that the judgment of the Court below should be reversed, that this suit should be dismissed, and that the 'Mary Stuart' should be released from arrest.
28. Having regard however to the circumstances of the case, and to the question of fact in the Court below having been found entirely in favour of the 'Nevada,' I think that the owners of the 'Mary Stuart' ought not to be allowed any costs.
29. It is clear that this serious injury, which has been done both to the 'Nevada' and the 'Savoir Faire' is entirely due to gross disobedience of orders on the part of the master of the 'Mary Stuart.' It is also clear that if the 'Savoir Faire' had sued the 'Mary Stuart' instead of the 'Nevada,' the owners of the 'Mary Stuart' would have had no defence to that suit, because the owners of the 'Savoir Faire' were no parties to the contract, which alone has protected the 'Mary Stuart' as against the 'Nevada'; and lastly, it is clear, that, in consequence of the course which has been taken, the 'Nevada' will have to pay for the whole damage to both ships, which has been caused entirely by the fault of the 'Mary Stuart.'
30. I consider, therefore, that each party should pay his own costs on scale 2, and that if any costs have been paid in the Court below, they should be repaid.
31. The question raised in this appeal is, whether the 22nd Clause in the towage contract, exempting the owners from liability, Is a defence in the present action. That clause provided that the owners should 'not be responsible under any circumstances for any loss or damage which may be sustained or occasioned by any vessel while it is in tow of any of their tugs, whether the same shall have happened through the act or default of the master of the tug or any engineer or other servants or otherwise, or through the incompetence or want of skill or care of the pilot in charge of the vessel.'
32. The present action is brought in respect of injuries sustained and occasioned by the 'Nevada' in a collision between her and the 'Savoir Faire,' which collision is found to have resulted from the misconduct of the master of the 'Mary Stuart.' The owners of the 'Nevada' now seek damages in an action in rem against the 'Mary Stuart,' in respect of the injuries occasioned to the 'Nevada' and of the damages which have been recovered from them by the owners of the 'Savoir Faire.'
33. I concur in thinking that both the injuries sustained by the 'Nevada' and the damages which have been recovered from her owners by the owners of the 'Savoir Faire' fall within the loss or damage against responsibility, for which the clause protected the owners of the 'Mary Stuart;' and that the conduct of the master was an act or default within the meaning of the clause. Consequently I think the owners are protected from personal liability. But I am unable to agree in the view of the original Court that, though the clause secured the owners of the 'Mary Stuart' against personal liability, it is hot a defence in an action brought in rem against 'Mary Stuart.' The clause is one, no doubt, which ought to be construed strictly, and in case of its meaning being doubtful, rather against, than in favour of, the person whom it relieves of responsibility; but its strict legal effect must be sought. Can it then, by any reasonable rule of construction, be contended that, when the owners of the 'Mary Stuart' had put an end to their own liability, as between themselves and the owners of the 'Nevada,' in respect of damage resulting from the misconduct of the master of the tug, the intention of the parties, or the meaning of the words in which they expressed that intention, was, that the owners of the 'Nevada' should still be entitled to proceed against their tug in respect of these same damages? Such a construction seems to me in direct opposition to the clear meaning of the words employed. I think that when the owners of the tug stipulated that they should not be responsible under any circumstances 'for loss, damage, etc.,' they must be held to have intended as between themselves and the other parties to the contract, to include not only the damages recoverable in a common law action, but the damages recoverable in an Admiralty suit by sale of their ship. It is true that there is not, since the decision of the Bold Buccleuch 7 Moo. P.C.C. 267, any question that by the maritime law there attaches upon a wrong doing vessel and her freight, a maritime lien to the full extent of the damage done; and that this lien relates back to the time of the damage and travels with the ship into whosoever hands she may come--1 M. and P. on Shipping, 619, 4th edition. But I do not see that this doctrine conflicts with the view that the parties to a contract may entirely put an end to the ordinary responsibility of the owners of a ship for any damage she may cause, and, by putting an end to that ordinary responsibility, destroy the lien by which that responsibility is enforced.
34. The language of Dr. Lushington in The Druid Bob. Adm. Rep. 391 seems to place beyond doubt the dependence of the right to proceed in rem, on the existing personal liability of the owners, and his dictum that the liability of the ship and the responsibility of the owners are convertible terms Seems to be applicable to the present case. The observations of the Judges in Nelson v. Couch 15 C.B.N.S. 99 seems to me to favour this view. The Judges there treated the right of proceeding in rem as a lien with a right of sale, and accordingly held, that if the sale was insufficient to satisfy the lien, the plaintiff might proceed in personam, for the residue: Byles, J., comparing it to the case in which a man having a debt secured by a pledge or mortgage necessarily resorts to legal proceedings to make the pledge available, and having failed to realize the whole of his debt by the sale, sues in a Common Law Court for the balance. In the present case, if we consider that the contract did not operate to exclude the action in rem, we must hold that the lien still exists, although, by the terms of the contract between the owners of the tug and the owners of the 'Nevada,' no liability could arise to the former on account of any damage done by the tug. The case to which the Chief Justice has just referred (The Parlement Beige) seems to show that this view would not be correct.