Lords Sitting of 5 June 1857

MINUTES.
Took the Oaths.—Several Lords.
The Lord Cowley, having been created Earl Cowley—Was (in the usual Manner) introduced.
Sat First in Parliament.—The Duke of Portland, after the Death of his Father.
PUBLIC BILLS.—1a Roman Catholic Charities; Princess Royal's Annuity; Ministers' Money (Ireland).
2a Hereford Cathedral Restoration.
3a Probates and Letters of Administration.

MERCHANT SHIPPING ACT.

  PETITION. QUESTION.
  THE EARL OF ALBEMARLE presented petitions, from Merchants, Shipowners, and others connected with the ports of Bristol and from Southampton, for the amendment of the Merchant Shipping
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  Act. The petitioners were not unfriendly to the principle of the Act. They considered it desirable that the laws relating to the mercantile marine should be consolidated into one Act, and that proper precautions should be taken to secure a right description of vessels, and a proper description of persons to command them; what they contended for was, that there were clauses in the Act which rendered it nugatory in these respects. They complained of the cumbrousness of the Act, which consisted of 548 clauses, many of them so prolix and complex that no seaman could be expected to understand them. Then, on the subject of limitation of liability, which was contained in the ninth part, they stated that the 504th clause declared that no shipowner should be liable for any damage done to property or life beyond the value of the ship and the value of the freight, and that in no instance was that value to be taken at less than £15 per registered ton; while by the 510th clause, in case of life or injury to the person, the liability was limited to £30 in each case; but this limitation was rendered a nullity by the 511th clause, which provided that parties not satisfied with the statutory award might have recourse to an action in a court of law; so that the shipowner was liable to two several actions for every passenger who might be lost or injured. The petitioners admitted the principle that the shipowners should be liable to penalties proportioned to their responsibility, but they objected to the unlimited responsibility laid down in the Act. Foreign ships were generally exempt from the liability to which British merchant ships were exposed, and especially the American mercantile marine, which was our greatest competitor. The total tonnage of British shipping was nearly 4,000,000 tons, and the American tonnage was about the same, but being free from liabilities to which English ships were exposed, it was natural to find the former increasing more rapidly than the latter. These provisions acted as a premium in the employment of American shipping in preference to British. In consequence of the liability not being defined, it was difficult for shipowners to insure, and therefore the Act tended to deter men of capital from entering into the passenger trade, which was left chiefly in the hands of speculators. Thus, the very clauses which were intended to protect the interests of emigrants were found to operate to their disadvantage.

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  Another point of which the petitioners complained was the construction of the tribunals which tried cases under the Act. The objections were that such a court was arbitrary, not recognized by the law of the land, and, inasmuch as its decision was not final, the effect was to prejudge the case. The court consisted of two magistrates, aided by a nautical assessor, who in nineteen cases out of twenty was a post captain in the Royal marine. The petitioners objected to justices of the peace as being totally unacquainted with nautical matters, and to naval officers on account of the antagonism which prevailed, or was supposed to prevail, between the Royal and the mercantile marine. In some countries abroad similar courts existed, but were composed in a different manner, there being two officers of the mercantile marine and one officer of the Royal Navy—an arrangement which was found to work well and satisfactory to all parties, they therefore suggested some such constitution for the courts of this country. Having stated the objections which were entertained by the petitioners, he would ask the noble Lord at the head of the Board of Trade the Questions of which he had given notice—whether they intend to introduce any measure to meet the requirements of the shipowners; and, if not, in what other way they mean to grant relief.
  LORD STANLEY OF ALDERLEYsaid, he had listened to the noble Earl with much attention, and, as far as he could understand, the grievances complained of were, first, that the present Act, being a consolidation of all the laws on the subject, was a very large and extended Act, containing 548 clauses. That was not very surprising, considering that the consolidation comprised not less than 120 or 130 Acts of Parliament relating to merchant shipping. He believed there never was a consolidation of laws made with greater ability, or that had met with more general approbation. At the same time he must say that the Act, though lengthy, was not obscure; for it had been so arranged under distinct heads, that a person wishing to know what the law was, might at once obtain any information he required. The chief objection of the shipowners, however, appeared to be their liability for loss of life under what was called Lord Campbell's Act. They had little reason for so doing, for that Act merely gave to the relatives of the deceased the same
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  power of recovering damages which, by the common law of the land, the deceased, if he had been alive, would have been able to recover for any injury which he might have sustained by the negligence or misconduct of any person engaged in carrying him from one place to another. By the law previously existing the shipowner was liable to the value of ship and freight for any injury done to property by collision, and by the law which was now complained of, to the same extent only was he liable, in case of loss of life from wilful negligence on his part. In the Merchant Shipping Act two modifications had been introduced. The one case was when a number of poor people went out in a vessel, when, as it might be extremely difficult for them to institute a separate suit for each particular person, it was provided that the Board of Trade should make a claim on the part of all the parties for any misconduct on the part of the master, or for any damage sustained by his negligence. And when such claim was established, the Act limited the maximum amount to £30 for each person; and the total amount which could be so claimed against a shipowner was limited to the full value of the ship and of her freight. By that limitation the shipowner was placed in a better situation than railway companies or any other persons whatever. So far, therefore, from the shipowner having any right to complain of the Act, he thought railway companies had a right to complain that they were not placed on the same footing as shipowners. In regard to the complaints of the constitution of the Naval Boards, it was difficult to constitute any other courts equally available and competent to discharge the duties of such inquiries, which, on the whole, were satisfactorily performed. Those courts were of two descriptions—the local Marine Boards, composed of the principal merchants of the different ports; and the other Boards of two ordinary or stipendiary magistrates, assisted by a nautical assessor, to give them such professional information as they required, to enable them to come to an accurate decision. In all ordinary cases, such as drunkenness, they had invariably been tried before the local Marine Boards. In the case of wrecks the matter was submitted to the magistrates, assisted by the nautical assessor. In the more grave cases that officer had been sent from the Board of Trade. When the decision was given,

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  it was referred to the Board of Trade, and either confirmed or mitigated, as the circumstances of the case appeared to demand. He believed these courts were as competent to fulfil their duties as any court could be. They were similar in construction to the Admiralty Court, which also required professional assistance from the elder Brethren of the Trinity House. He did not believe there was any ground for an alteration of the law. In all the cases tried, both of wrecks and of cancelling certificates, no one case had been yet brought before the attention of the Board of Trade, as showing that injustice had been done, or that any of the reports of those courts had not been founded fairly on the evidence brought before them. He was not, therefore, prepared, as at present advised, to introduce any alteration in the law.
  THE EARL OF HARDWICKEsaid, that the statement just made by the noble Lord the President of the Board of Trade, left no hope that, as far as the Government were concerned, any inquiry would be made into the operation of the Merchant Shipping Act. That an inquiry would be made he was perfectly confident, believing that their Lordships, in the absence of action on the part of the Government, would think it right to appoint a Select Committee on the subject, as was the prayer of one of the petitions. After going through the details of the Act, he was convinced that some of the demands of the petitioners could not reasonably be refused, while there were various points not mentioned in their complaint which ought to be investigated. Both the merchant service and the public were of opinion that the existing Act ought to be reconsidered and revised, without party prejudice on one side or the other. The former had no objection to be placed under any law which would extend to the latter security for their persons or property in their conveyance from port to port. But, as stated in the petitions, they complained of various provisions in the Shipping Act which bore hard upon them without benefiting the public. The first point which struck him in the objections of the petitioners was, that respecting the court before which offences, whereby danger to life and property in ships were incurred, were to be tried. The petitioners complained, not so much of the tribunal itself, as of the mode in which the proceedings were conducted. He could not conceive anything more reasonable
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  than their request for a court of appeal, and he thought that such a tribunal of ultimate resort could be found in the Admiralty Court as would give every satisfaction to the merchant service. He denied entirely that the merchant service objected to the naval assessor, but they required a court composed of practical seamen who understood all the details of the question, and were competent to determine the cases brought before the tribunal. It was very natural that if they found the Judge unacquainted with the technical points of the mercantile service they should object to the court. They also complained of the system of inspection. The Act of Parliament empowered the Board of Trade to inspect the engines and boilers of the steam vessels to ensure the safety of the ship, and they exercised a power of passing or rejecting them. He did not object to that, because he thought it highly necessary that some such power should be vested in a department of the Government. There were many things that could not be carried out in detail by an Act of Parliament, and therefore it was highly proper that some competent person should be appointed to look into those details. But then, again, he thought there ought to be some appeal from the decision of an inspector, who was guided by certain rules and regulations laid down in his instructions which sometimes operated both to prevent a new design and inflict injustice upon the manufacturer. As an instance of this, he might mention the fact that one manufacturer had made a boiler intended to bear a pressure of 12 lb. upon the square inch, and had tested it to 50 lb.; but on examination by the Government inspector it was rejected, because it was not fitted with certain stays in the inside as prescribed by the regulation, the real object of the maker being to dispense with them for the purpose of giving greater facilities for cleaning, which was most important. They could easily understand the irritation of a man who had his boiler rejected when it was at least four times as strong as it need be, and when he had effected an improvement in its construction. He thought that in such cases there should be some court of appeal, in which the improvements might be shown and the boilers passed, although condemned by the inspector in consequence of not fulfilling certain verbal and, in their case, unnecessary regulations. The present system certainly afforded facilities for jobbing—not that he would

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  utter a word against the inspectors; but it was very easy for the builder, or some one acting for him, if he found that during the examination the machinery was, to use a technical phrase, "fatigued," to drop a little oil here and there without the cognizance of the inspector. He assured their Lordships that these regulations were so offensive to the merchants and shipbuilders, that in Glasgow some of the ship-builders had absolutely offered to submit their plans to the inspector before the ship was built, well knowing that it would be useless to proceed with the work unless upon such a plan as would secure the approval of that functionary. He was of opinion, that if these objections could be remedied by a short Act of Parliament, such a measure ought to be brought in by the Government; but if not, then it would be necessary for a revision of the whole of the Merchant Shipping Act by means of a Select Committee.
  LORD STANLEY OF ALDERLEYsaid, the noble Earl had entered into a great deal which did not appear on the face of the petitions, and he could only say that if he thought it would give general satisfaction he would give a favourable consideration on the part of the Government to the suggestion for giving an appeal from the court below to the naval or the Admiralty Court. The Admiralty Court might, if it was approved of, be constituted a final court of appeal on such matters. With regard to the inspectors, they were at present chosen from a class entirely unconnected with trade, for the very purpose of avoiding prejudice which might otherwise arise in the minds of others if appointed to so delicate an office. The present system of tonnage which had been adverted to had been instituted after a communication by the Government with the Admiralty, Lloyd's, and Trinity House, the highest authorities in the country upon such a subject.
  THE EARL OF ELLENBOROUGHsaid, the extent to which they would give an appeal was a matter for their most serious consideration. He confessed that generally speaking he was not favourable to instituting appeal courts in this country, his view being that they should make the original court such a one as could be fully relied on. One of the great complaints was the delay occasioned by the inspection. How much would that delay be increased by the introduction of appellate jurisdiction? It would never be forgotten that this measure, which was one of consolida-
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  tion, was only passed after a most protracted and anxious consideration by the House of Commons; it was only passed two or three years ago, and, in his opinion, it would be wrong, after so short an experience of its effects, to meddle with the measure.
  LORD CAMPBELLcalled the attention of their Lordships to the hardship inflicted upon persons possessing manorial rights by certain provisions in this Bill, which compelled persons claiming such rights to produce all their title deeds and other evidence before being allowed to touch a single thing thrown upon their estate as a waif or wreck. He happened to possess an estate in Ireland, and the other day was served by a notice from the inspector, on the part of the Crown, calling upon him to state whether he meant to claim wrecks, and if so, on what right he based his claim in opposition to the Crown. He was then told that this inquiry arose out of the Act for consolidating the laws relating to the mercantile marine. All he could say in reply was, that he obtained his estate under the Incumbered Estates Act, and upon that Act he must repose.
  LORD REDESDALEsaid, the position now assumed under the Act in question, on the part of the Crown, with respect to wreck which had drifted ashore was most unfair, inasmuch as each proprietor of land bordering on the sea was now called on to prove his title to wreck to the satisfaction of an officer of the Crown, who was, in point of fact, the claimant against him. A man might be now exercising by prescription the right to wreck cast ashore on his estate, but by this Act he ran the risk of incurring a heavy penalty by continuing to do that which he had done for years, and which had been done by his ancestors before him, under colour of that prescriptive title. Such a case of injustice was never before perpetrated by an Act of Parliament that he was aware of, and nothing short of the absolute repeal of the clauses in the Act in reference to wreck was required by the commonest principles of justice.
  LORD STANLEY OF ALDERLEYwas understood to say that it was not made compulsory on the lords of manors to produce their title deeds, and that it was only in cases where the right to wreck was not claimed by any other person that the Crown stepped in to exercise it. If a man claimed the right, he was called on to produce his title, but it was not compulsory on him to do that; and if he failed to

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  do so, the question of the right remained to be settled by the legal tribunals of the country.
  EARL GREYsaid, his recollection entirely bore out what had been stated by the noble Earl opposite (the Earl of Hardwicke). He (Earl Grey) knew that on his own estate wreck had always been claimed by him; but he had recently received a peremptory notice that, if he continued to claim that right, he would be called on to show his title.
  THE EARL OF DERBYsaid, he had been called on in precisely the same manner to show his title, and his neighbour, the Earl of Sefton, had received a similar notice in respect of that part of his estate, situate near Liverpool. Although in his (the Earl of Derby's) case the value of the wreck was very inconsiderable, the right to the property between high and low-water mark was involved in the question.
  LORD WYNFORDstated that this question assumed additional importance when it was borne in mind that the clauses in question applied, not only to the coast, but to the shores of navigable rivers, and that in both cases the lord of a manor was liable to be called on to show his title.
  LORD BROUGHAM, adverting to what had fallen from a noble Earl (the Earl of Ellenborough), said he must protest against the notion that appeals were generally to be disfavoured. At the same time, the best course was to make their original court as perfect as possible, so as to render appeals unnecessary.
  Petition to lie on the table.

PROBATES AND LETTERS OF ADMINISTRATION BILL.

  THIRD READING.
  Order of the Day for the Third Reading read.
  EARL STANHOPEasked the noble and learned Lord on the woolsack whether he did not think that an inconvenient increase would be made to the judicial business of their Lordships by the change introduced in Committee in the 37th clause of the Bill, which would constitute the House the Court of Appeal under the measure? He would remind the noble and learned Lord that that change involved a departure from his own original proposal, that the appeal in that case should be to the Judicial Committee of the Privy Council.
  THE LORD CHANCELLORsaid that,
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  he did not think the number of appeals to the House would be greatly increased under the operation of that measure, because the appeals in those cases had hitherto arisen out of the question of the sanity or insanity of the testator, and under the Bill any question of that kind would be decided by a jury. Appeals would only be brought before their Lordships in cases of alleged misdirection by a Judge, and those cases did not constitute one in every hundred of the appeals which had hitherto been made. With regard to the change introduced into the 37th clause, he had to observe that that change would only carry into effect the view he had originally entertained upon the subject. It was only in deference to the opinion of others that he had proposed in the Bill that the appeal should lie to the Judicial Committee of the Privy Council, and not to that House; and he was very glad to find that he was enabled in Committee to carry out the conclusion at which he had in the first instance arrived.
  THE EARL OF DONOUGHMOREsaid, he must express his regret, that the noble and learned Lord should have given so decided an opinion in answer to a noble Earl (the Earl of Malmesbury) a few days ago, that it would be impracticable to grant compensation to the proctors. The noble and learned Lord said it was impossible to grant them compensation, because their offices had not been abolished; their business might, indeed, be diminished, but all great public reforms were attended with some injury to private interests. That would be a very good argument if it had not been possible to reform the court without destroying their business; but such was not the case. There was no necessity for throwing open the new court to solicitors; no great public benefit could arise from it; and the business ought to be left in the hands of gentlemen who were so well qualified to discharge it. There were several clauses in which he (the Earl of Donoughmore) would venture to suggest some alterations. Clause 43 provided that probate and administration in non-contentious matters might be taken out in the district court when the whole property did not exceed £1,500; he would suggest that the maximum should be reduced to £800. It was further provided, that a simple affidavit that the property was under £1,500 should be conclusive as to the fact. He thought some further security was necessary. As the district registrars were to be paid by fees they had an interest in increasing the

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  number of probates, and would not look narrowly into the affidavit. He suggested that, in order to check fraud, the party should make a return of the particulars of the property. The 73rd clause appeared intended to relieve the Bank of England of a portion of their present responsibility as to transfers. In all cases when stock in the public funds is to be transferred to an executor or administrator, the Bank now required the production of a London probate, but as that would be impossible, when probate would be granted in the district court, the Bill proposed to relieve the Bank of this responsibility. He thought that would be very unwise, and would suggest an Amendment to the effect that when ever any portion of the property of a testator consisted of stock in the public funds it should be necessary to take out probate in London. The 89th clause proposed to repeal the Act which restrained proctors from making an agreement to share their profits with any person; the effect of this would be that the solicitors would swallow up a great deal of the business still left to the proctors. He wished also to call attention to the position of the proctors of the Prerogative Court of York, who were much worse treated than those of the province of Canterbury. It was proposed to abolish the court of the province of York altogether, so that even on the noble and learned Lord's own admission the practitioners of that court had an irresistible claim to compensation.
  LORD WYNFORDwas understood to contend that, under existing Acts of Parliament, certain officers of these courts were not entitled to the compensation provided by the Bill.
  THE LORD CHANCELLORsaid: considering that the question before their Lordships was only that the Bill be road a third time, the Motions, or rather the observations, which had fallen from his noble Friends should rather have been made whilst the Bill was in Committee. He did not, however, complain of the course that had been taken, as his noble Friends had doubtless considered that it would be the most convenient to himself: The objections depended, first of all, on the question of compensation. His noble Friend at the table (the Earl of Donoughmore) thought that the Bill was unjust in not giving compensation to the proctors. When he said the proctors ought to receive compensation, he must do him (the Lord Chancellor) the justice to remember that all along he had wished to give compensation, where he could clearly
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  see his way to do so, to those who were really likely to suffer loss by any proposed changes. It was the duty of those who proposed such changes to endeavour to mitigate the evils resulting from professional loss as far as possible; but if every reform was to be delayed until all possible loss to the different classes affected had been adjusted, no one need undertake the task of a reformer. But how was it possible to estimate, for the purpose of compensation, the loss sustained by the members of a whole profession? It would be necessary to take an account of the profits of each individual for a certain number of years past, and to set off against that an estimated average of the profits which would be made by the same individual under the future system. When the proposal came to be worked out, it would be found to be impracticable. It would, however, be incumbent on those who administered the patronage of the proposed system to appoint to situations those who might suffer by its introduction. His noble Friend had complained that too much compensation was provided, and another noble Lord bad objected to the compensation that was proposed to be made in other cases. He (the Lord Chancellor) thought that there were certain persons, no matter whether they held sinecures or not, who were justly entitled to compensation. Whether it were correct or not, the principle was always acted upon in this country, that you could not take away from a man a source of livelihood to which he had a right without making him a compensation for it; but there were certain persons excepted out of this principle by the operation of the Acts to which his noble Friend had referred; and it was to those persons to whom he (the Lord Chancellor) wished to give compensation by the present measure. They were those who, but for those Acts, would have held offices for life, and who were clearly entitled to receive compensation. The provisions of the present Bill would also extend to those who held reversionary interests in offices, and to many who did not exercise the duties of the offices which they held in person. Another provision objected to was, that which enabled an attorney in the country to employ a proctor in London as his agent. Why should he not do so? The country attorney was in the habit of employing London agents for other business; and the arrangement was only m conformity with what he should suppose would be the general opinion of mankind. With refer-

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  ence to the sum of £1,500, the limit of value at which causes were to be tried by the district Judges, he (the Lord Chancellor) had simply adopted the recommendation of the Commission on the subject. It was necessary to draw the line somewhere, and this sum had been fixed upon after much consideration. Finally, as to the question of opening the new court to barristers and solicitors, that was the only point on which all persons had concurred. It was impossible not to allow these practitioners to come in in all cases of contentious business, whilst the ordinary business might be managed by the other members of the court. He would move that the Bill be now read a third time.
  Motion agreed to.
  Bill read 3a accordingly.
  Amendments moved, and, by leave of the House, withdrawn.
  Amendments moved and negatived.
  Amendments made.
  Bill passed, and sent to the Commons.
  House adjourned at a quarter to Eight o'clock, to Monday next at Eleven o'clock.