Of the limita tion of the re sponsibility of owners by 53 Geo. 3. c. 159. Wilson v. Dickson. not duly registered. 5. The act next directs the form of proceeding in cases where the value of the ship, with all her appurtenances, and the amount of the freight, are not sufficient to make compensation to all the persons who have suffered loss. The proceedings are to be carried on by bill in equity; and the parties claiming recompence are to be entitled to rateable proportions of the value of the ship, appurtenances, and freight. Such are the principal clauses of this act; the remaining sections of which relate to the forms of proceeding only. In a late case upon this statute it has been determined by the Court of King's Bench, that the meaning of the first and fourth sections, taken conjunctively, was,-1. That in an action against several joint defendants, as ship-owners, for damage sustained by the loss of goods laden on board their ships, they were not liable in that character beyond the value of the ship and freight due, and to grow due; although the loss were occasioned by the misconduct of one of the defendants, who was both master and partowner. 2. That the value of the ship was to be calculated at the time of the loss, and not at the time of the commencement of the voyage. 3. That in calculating the value of freight due, or to grow due, the money actually paid in advance was to be included. (a) IX. Subsequent to the case of Wilson v. Dixon, another important question has arisen upon the construction of the 53 Geo.3. c. 159. There is undoubtedly some ambiguity in this act. The first section limits the responsibility of owners to the value of the ship and freight. The second section contains an exposition of what Of the meaning shall be considered freight, within the meaning of this act. The of the term ship's appurte nances, in the 53 Geo. 3. c. 159. seventh section, in addition to the terms "ship and freight," within the limits of which the responsibility of the owners is apparently confined by the previous sections, introduces, for the first time, the word "appurtenances," which is afterwards continued throughout the act, as an adjunct to the terms ship or vessel. It would seem, therefore, as if the word appurtenances had been accidentally omitted in the first section. Some difficulty has arisen upon the construction which ought to be put upon the word appur tenances, and a question is now depending in the Court of King's Bench, in an action of prohibition, whether the fishing stores of a vessel employed in the Greenland trade are to be considered as (a) Wilson v. Dickson, 2 B. and A. the judgment of Mr. Justice Bayley, p. 2. The Reader is referred to the p. 10. masterly exposition of this statute in Gale v. Lawrie. appurtenant to the ship. (a) The Court of Admiralty has decided this question in the affirmative under the following circumstances: X. In the month of March, 1820, the ship Dundee, of about Ship Dundee. 350 tons' measurement, of which the plaintiff was sole owner, was going down the River Thames on a voyage to the Greenland fisheries for catching whales, and was furnished with the usual apparatus for that purpose. On the ninth day of the same month she came in collision with the defendant's smack, the Princess Charlotte, near the Gun Fleet Sand: the smack immediately sunk; and with her cargo, &c. was wholly lost. The defendants immediately instituted a suit in the Admiralty Instance Court, against the Dundee, "her tackle, apparel, and furniture." The warrant for arresting the ship was in the same form; and the Dundee was arrested under that warrant, at Harwich, a few days afterwards. The Dundee, like all other fishing ships, whether for the Greenland or the Southern fisheries, was equipped, not only with a complete supply of all those sailing stores which are necessary for all sorts of ships for the purpose of navigation, such as sails, provisions, boats, &c.; but also with the apparatus necessary and accustomed for the fisheries, such as harpoons, lines, knives, &c. for catching whales, and casks for holding the blubber, and bringing it home to England, where it was to be melted and converted into oil. When the Dundee was arrested at Harwich, a dispute arose whether this apparatus for fishing, &c. usually called "fishing stores," came within the act of parliament of the 53 Geo. 3. c. 159., or within the action against "the ship, her tackle, apparel, and furniture ;" and, after a good deal of discussion it was agreed, that one separate valuation should be put upon the Dundee and her general sailing stores, and another upon her fishing stores; and that bail should be given in the action for the whole amount claimed, reserving the question whether the fishing stores came within the scope either of the act of parliament, or of the action in the Admiralty, it being thought unnecessary at that period to discuss that question, because the plaintiff meant to contest his liability altogether; and if he had succeeded on that head, all further discussion would have been unnecessary. Accordingly the ship and her sailing stores, and the fishing stores, were separately valued, the former at 26857, the latter at 22361.; and bail was given for 90007, the full amount of the action. The plaintiff, however, expressly reserved the question, whether he was liable in respect of the fishing (a) Gale v. Lawrie, before Abbott, Term, at Guildhall, 1823. L. C. J, Sittings after Michaelmas Ship Dundee stores, which, he contended, were not within the meaning of the Gale v. Lawrie, 53 Geo. 3. c. 159. s. 7. as appurtenances of the ship. On the 4th December, 1821, Lord Stowell decided, that the plaintiff's ship the Dundee was in fault, and was liable to pay the owners of the Princess Charlotte the amount of her value, freight, &c. The registrar reported a sum of 45441. 12s. 6d. (independent of the proctor's bill) to be due to the defendants, which sum exceeded the valuation of the Dundee with her sailing stores, (which was only 26857.) but did not amount to the aggregate value of the ship and her fishing stores, namely, 26851. and 22367., together 49211. The plaintiff objected to pay the amount of this report, upon the ground that it exceeded the amount of the value of the ship and her sailing stores, and that he was liable only to that extent, both under the act of 53 Geo. 3. c. 159. and under the warrant against the ship, her tackle, apparel, and furniture; and this point was distinctly brought before his Lordship on an action of petition. Lord Stowell, however, on the 28th of January, 1823, decided that the fishing apparatus was to be considered as appurtenances of the ship within the seventh section of the 53 Geo. 3. c. 159., and that the form of the action extended to the fishing stores and gave Lord Stowell's judgment accordingly. In delivering judgment, Lord Stowell judgment in the case of the observed, "That the question of reparation due in such cases has been differently measured in the maritime laws of different commercial countries; and of the same commercial country (amongst others our own) at different periods. The ancient general law exacted a full compensation out of all the property of the owners of the guilty ship, upon the common principle applying to persons undertaking the conveyance of goods, that they were answerable for the conduct of the persons whom they employed, and of whom the other parties, who suffered damage, knew nothing, and over whom they had no controul. To this rule our own country conformed; and it is not to be denied that the term compensation is not very accurately applied to any restitution that falls short of a fair and full indemnification for the injury done. But Holland having introduced a law for the protection of her navigation, that persons interested in it should not be liable beyond the value of that property of their own which they exposed to hazard, their ship, freight, apparel, and furniture, England followed in successive statutes, by which it protected owners from responsibility beyond those interests, in the case of embezzlements committed, first, by some of the crew of the ship herself; and in a succeeding statute (26 Geo. 3.) extended to the case of embezzlements committed by other persons. It proceeded in a later statute to give Dundee. MSS. Gale v. Lawrie. the same protection in the case of all losses otherwise produced. Ship Dundee. That statute, in the first enacting clause, subjects the ship, tackle, apparel, and furniture, and its freight: but in the following clauses (7th and 8th) the word appurtenances is repeated as subject to contribution. These latter clauses must be considered as explanatory of the first clause, proving that the purport of that clause, though briefly expressed in its own terms, was to embrace whatever could be fairly considered as the appurtenances of the ship. It cannot be supposed that these following clauses introduce an inoperative word totally without meaning; and they can have 53 Geo. 3. c. Object of the no meaning unless they are understood to be virtually incorporated 159. in the first clause, and to derive an operation from it. If not so, they are either totally unmeaning, or they must stand in direct contradiction to the enacting clause, if that clause confines its own intended meaning to the ship and freight only; and these other clauses carry it to other subjects. The word cannot be considered with any propriety as the intrusion of a new, distinct, and distant subject. A cargo cannot be considered as appurtenances of the ship, being that which is intended to be disposed of at the foreign port for money, or money's worth vested in a return cargo. Its - connection with the ship is merely transitory, and it bears a distinct character of its own. But those accompaniments that are essen-tial to a ship in its present occupation, not being cargo, but totally 'different from cargo, though they are not direct constituents of the ship; (if indeed they were, they would not be appurtenances; What are to be for the very nature of an appurtenance is, that it is one thing deemed appurwhich belongs to another thing;) yet if they are indispensable ship, under the instruments, without which the ship cannot execute its mission, 53 Geo. 3. c. and perform its functions; it may, in ordinary loose application, be included under the term ship, being that which may be essential to it, and as essential to it as any part of its own immediate machinery. The appurtenances here particularly charged as liable to contribute are the fishing stores, valued by the merchants at Lloyd's at 22367.; the ship being valued at 26857., and being equipped for a whaling voyage to Davis's Straits. The owners of the ship, charged with the injury, contend that these fishing stores are protected from all liability to contribute; first, by the mode in which the suit commenced by an arrest of the ship, tackle, apparel, and furniture only, without including the fishing stores. For it has been argued, that fishing stores cannot be considered as furniture, inasmuch as it has been determined, in a case quoted, that they are not entitled to be so considered. It is a case to be found in two or three reports stated concisely, but more fully in tenances of a 159. Gale v. Lawrie. Hodges v. Ship Dundee, Mr. Serjeant Marshall's book, p. 727. Hodges v. Bakingstill. The usage of trade often controls the general construction of the policy; and what shall not be protected as a part of the ship and furniture depends, in some cases, on the usage of a particular trade, as where an insurance was made on a Greenland ship; and, in an action on the policy, the question was, whether the fishing tackle was included in the insurance on ship and furniture. Lord Mansfield said, there was no doubt that boats, rigging, and stores belonging to the ship, were included; and as to the fishing stores, it must depend on the usage of trade. Contradictory evidence was given on this. The jury found for the plaintiff: but the court afterwards set aside the verdict, on the ground that the evidence of usage was principally for the defendants. In this case then it was finally decided, and upon the best authority, that, by the usage of trade, the meaning of the word furniture did not include fishing stores in the construction applied to a contract of insurance. I am not sufficiently aware whether this would govern the construction of the same word occurring in an Act of Parliament, or in the phraseology of a court, in which its meaning is perhaps more to be collected from its proper and genuine import, than from a prevailing understanding, controlling its proper meaning, in a contract between two individuals, whose words were not to be carried beyond their own intentions in the contract. But it is unnecessary for me to pursue that question further; because it is an admitted fact, that this mode of initiating a suit by arrest of ship, apparel, and furniture, is the ancient formula of the court, as leading to a full remedy affecting all the property of every kind belonging to the owners. The same formula has existed, and operated its remedy under all the variations by which the remedy has been modified. It has been no further restricted, than as the statutes restricted it. But the initiatory terms, "tackle, apparel, and furniture," founded the suit sufficiently to enable it to embrace all the objects which the statutes left subject to its operation. These restrained them only by their own particular restrictions. The same words went as far as the general law went, notwithstanding the narrowness of those terms; and they must now go as far as the general laws, limited only by that statute, extend. The cause proceeded upon this commencement; and a release of the ship from arrest took place, upon bail given in to answer for the liability of the stores as well as of the ship. I suppose it was an understood matter between the parties; because there was no application to the court, upon any complaint of the oppressiveness of the bail required, and praying the ship might be released without |