United Kingdom House of Lords Decisions

I am therefore of opinion that the “Bear” has not a third deck, commonly called a spar-deck, within the meaning of sub-division 5 of section 21, so that the tonnage of the space between it and the tonnage-deck should be ascertained under that sub-division.

It was then contended that the register tonnage should be increased under sub-division 4 of the same section.

It appears to me that the condescendence of the appellant and his pleas in law are confined to the case advanced under the 5th sub-division, to which I have already referred. But, even if this were not so, the argument under the 4th sub-division does not appear to me to be capable of being supported. The part of the deck underneath the moveable covering which I have described cannot in any sense be called a “permanent closed-in space on the upper-deck, available for cargo.” It is the whole of the deck underneath the covering, and there is no enclosure or separation of one part of the deck cutting it off from the rest of the deck; nor is it a “space available for cargo” in the sense in which cargo is used for the purpose of measurement. The cargo underneath the covering would be deck cargo merely. Neither is it “space available for the berthing or accommodation of passengers or crew;” nor is it suggested that it has ever been used for that purpose.

On the whole, I am of opinion that this appeal fails, and I submit to your Lordships that it ought to be dismissed with costs.

Lord Hatherley—My Lords, I entirely concur in the decision to which your Lordships have been asked to come by my noble and learned friend on the woolsack, and it is not necessary for me to add one word to what has been said by him. The onus of proof, which in all ordinary cases rests upon the pursuer, rests one may say in a very peculiar manner in this particular instance upon the pursuer, because he seeks to alter a survey made upon a previous occasion by an official surveyor, which only requires to be revised in respect of certain alterations which had been made in the ship, of which the particular matter in question does not form part. Therefore, to decide upon the present occasion against the respondents would be in effect, as it seems to me, not only to disregard Mr Mumford's report, but to disregard the view entertained by the surveyor who originally surveyed the ship, and who certainly did not then think of including these erections as coming within either the 4th or the 5th sub-sections of the 21st clause of the Merchant Shipping Act.

Lord O'Hagan—My Lords, I am of the same opinion. I have not been at all affected by the considerations of public policy and the possible results of our decision, one way or the other, which have been pressed upon us, mainly by the Attorney-General. Such considerations may sometimes, but very rarely, be regarded as throwing light on the terms of a statute when they are obscure, and assisting towards an understanding of the intention of its framers. But here we have no difficult question of construction, there is no controversy as to facts, and we have nothing to do but to apply to those facts the plain words of the statute, and carry them into effect, whatever may be the consequences either to the revenue or to the mercantile community.

The report of Mr Mumford seems to me to conclude the case on both its branches. He is the sole witness; an expert named by the Court, and appealed to for his judgment for both parties. The Crown, at least, cannot object to his competency and correctness, for they have insisted that by his evidence alone the matter should be determined, and if it is to be relied on, the “Bear” is not a three-decked ship, according to the contention of the appellant. In her original certificate of registry she was described as a two-decked ship, and rightly so described, if Mr Mumford is warranted in saying that her awning-deck is not a continuous deck,—is not that which is commonly called a spar-deck,—and does not therefore constitute a third deck within the meaning of the statute. And he makes this still more clear when he states that the “Bear” cannot, without becoming unseaworthy, be loaded as a three-decked ship can and ought to be loaded. And if she cannot, it would seem that the measurement of her tonnage should, in fairness as well as in accordance with the terms of the statute, be proportioned to her carrying capacity, and that she should be dealt with as a two-decked vessel.

On the second point I should have been disposed to hold the Crown precluded from making it at all by the state of the pleadings, but it was considered by the learned Judges of the Courts below, and declared to be untenable. I concur in that opinion. I was struck by an observation of the Attorney General with reference to the danger of allowing shipowners to escape their proper liabilities by leaving portions of their vessels in an imperfect state, so as to keep them unreached by the exact description of the statute, and yet to make them available for profit on occasion. I am not prepared to say that such a danger may not arise, and that such an evasion ought not, if possible, to be prevented. But in this case I do not find any proof of a purpose of that kind. The respondents deny it; and the sole witness, Mr Mumford, does not allege it. Upon his testimony, it seems impossible to hold that there is in the place to which the question has reference a space “permanently closed in,” and suitable for the reception of “cargo or stores,” or the berthing or accommodation of human beings. This is made clear by the report, which describes the place as in a condition wholly unfitting it for the reception of perishable goods, or the safe and reasonably comfortable lodgment of passengers or sailors. By that report the Crown has elected to stand, excluding all access to other evidence and means of information; and, according to its findings I think that the judgment of the Court of Session was perfectly correct, and ought to be affirmed.