Battling with waves and lawyers : $b a genuine history of perils of the deep and an authentic record of the most important shipping case ever dealt with in the supreme courts of Australasia
History
Battling with waves and lawyers : $b a genuine history of perils of the deep and an authentic record of the most important shipping case ever dealt with in the supreme courts of Australasia
Alert (Ship : 1877-1893); Liability for marine accidents; Navigation -- Australia -- History; Shipwrecks -- Australia -- Victoria
Finding that the Full Court decision was against them, Messrs.
Huddart, Parker & Co.’s lawyers changed their tactics. With the
object of quashing the whole proceedings, they raised the point that
the _Alert_ was not a British ship within the meaning of the Merchant
Shipping Act. This point was fully recognised on March 24, 1897,
before the same Supreme Court Judges who decided the appeal case. Mr.
Schutt (barrister) appeared for Huddart, Parker & Co., and Mr. W. H.
Williams (barrister) appeared for Ponting. As the matter debated is
of great importance to all concerned in shipping interests, it has
been deemed advisable to adhere to the authentic verbatim reports of
the proceedings as given in the _Herald_ newspaper, March 24, 1897,
and the _Argus Law Reports_ of May 11th, 1897, hereto annexed:—
“WHAT IS A BRITISH SHIP?
SCHUTT for the respondents.—The plaintiff brings his action under
sect. 103 of the Marine Act 1890. That section comes within Part VI.
of the Act, and therefore has to be read with sect. 98, which says
that the provision of that Part “shall apply to all British ships
registered or being at any place within Victoria and to no others.”
Thus, although sect. 103 only uses the word “ship,” it can only apply
to a “British ship.” The Imperial Act, 39 and 40 Vict., c. 80, sect.
5, corresponds to our sect. 103; but this question could not arise in
England, because there is no equivalent to sect. 98 in the Imperial
legislation. We have, however, to refer to the Imperial legislation
to find out what is a “British ship”; and we find that, by sects. 18
and 19 of the Merchant Shipping Act 1854, 17 & 18 Vict., c. 104,
which two sections it is submitted are to be read together, a British
ship must be owned by a British owner, and must be registered. By
sect. 17 of the same Act, Part II. of the Act, under which sects. 18
and 19 are, is to apply to the whole of the British dominions. Again,
if any alteration of the ship be made, re-registration is required by
sect. 84 _et seq._, which, if not done by sect. 87, the ship shall
not be deemed duly registered, and shall no longer be recognised as a
British ship. In this case the _Alert_, when originally registered,
had three masts. The number of her masts was subsequently altered,
but she was never re-registered; she is, therefore, not now a British
ship, and the plaintiff has no cause of action. [W. H. WILLIAMS
referred to _Chartered Mercantile Bank of India, London and China_ v.
_Netherlands India Steam Navigation Co._, 10 Q. B. D. 521; 52 L. J.
Q. B. 220, per Brett, L. J., as to the meaning of “British ship.”]
That case is distinguishable, the question there being whether a
certain rule of the Admiralty Court as to the equal liability of the
two ships should apply, and, accordingly, whether Dutch or English
law was applicable. The ships were there held to be English because
owned by English owners, although registered in Holland. The question
Public-domain text, read in full here on John Shaqi.
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