COUNSEL: Kennedy, Q.C., in support of the application

Barnes, Q.C., and F. Laing, for the owners of the Duke of Buccleuch

Finlay, Q.C., and Stubbs, for the respondents

 

SOLICITORS: For the appellants, the owners of the Duke of Buccleuch: Gellatly & Warton.

For the respondents, the owners of the cargo in the Vandalia: Thomas Cooper & Co.

 

JUDGES: Jeune, J.

Lord Esher, M.R., Fry and Lopes, L.JJ.

 

DATES: 1892 March 29.

1892 April 4, 5.

 

 

Admiralty – Practice – Parties – Adding or Substituting a Plaintiff after Decree – Rules of Supreme Court, Order XVI., rr. 2, 11, 12 – Finality of Judgment.

 

By Order XVI., r. 2, of the rules of the Supreme Court: “Where an action has been commenced in the name of the wrong person as plaintiff … the Court or a judge may, if satisfied that it has been so commenced through a bon‰ fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted … as plaintiff upon such terms as may be just.” By r. 11: “… The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the names of any parties improperly joined … as plaintiffs … be struck out, and that the names of any parties whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff … without his own consent in writing …”

 

In an action in personam for damage by collision, the name of the agent, instead of that of the owner of the cargo on board the plaintiffs’ vessel, was, by a bon‰ fide mistake, inserted in the writ as a co-plaintiff.

 

The case was carried up to the House of Lords, with the result that the defendants’ vessel was found alone to blame, and a decree made in favour of the plaintiffs. The mistake was then discovered, and, to enable the claim of the cargo-owner for damages to be assessed by the registrar and merchants, [*202] Jeune, J., made an order that, on payment of the costs of the application, the name of the owner of the cargo should be substituted for that of the agent as a plaintiff:–

 

Held, by the Court of Appeal, that a decree in an Admiralty action, fixing the liability, but leaving the damages to be assessed, is not final, and therefore there was power under Order XVI., rr. 2, 11, to make the order, which was affirmed, with the variation that the written consent of the cargo-owner to be added as a plaintiff must be obtained within a limited period.

 

APPEAL by defendants, the owners of the Duke of Buccleuch, from an order of Jeune, J., dated March 29, 1892, substituting, after trial of an action of damage by collision, the name of a plaintiff as cargo-owner.

 

The action arose out of a collision which took place on March 7, 1889, in the English Channel, between the sailing ship Vandalia, belonging to some of the plaintiffs, and the steamship Duke of Buccleuch, belonging to the defendants.

 

The Vandalia at the time of the collision was carrying to London, consigned to order, a cargo of 2796 barrels of petroleum, shipped by Meissner Ackerman & Co. of New York, under a charterparty dated January 25, 1889, made between them and the agents of the owners of the Vandalia, and bills of lading dated February 1 and 2, 1889.

 

The question was whether, in an Admiralty action in personam, after judgment in the Admiralty Division, Court of Appeal, and House of Lords, Meissner Ackerman & Co. could, under Order XVI., rr. 2, 11(1), of the Rules of the Supreme Court, be added as plaintiffs or their name substituted for that of their agent.

 

(1) Order XVI., r. 2: “Where an action has been commenced in the name of the wrong person as plaintiff … the Court or a judge may, if satisfied that it has been so commenced through a bon‰ fide mistake, and that it is necessary for the determination of the real matter is dispute so to do, order any other person to be substituted … as plaintiff upon such terms as may be just.”

 

Rule 11: “… The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the names of any parties improperly joined … as plaintiffs … be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff … without his own consent in writing …” [*203]

 

The facts, so far as material, were shortly that:–

 

On March 12, 1889, a writ of summons in personam was issued in the Admiralty Division, entitled “Between George F. Smith and Others, plaintiffs, and the Eastern Steamship Company, Limited, defendants,” and it was indorsed with the following claim: “The plaintiffs, as owners of the ship or vessel Vandalia, of the port of St. John’s, New Brunswick, the owners of her cargo and her master and crew, claim compensation against the Eastern Steamship Company, Limited, the owners of the steamship Duke of Buccleuch, for the loss of the said vessel Vandalia, her cargo and crew’s effects, occasioned by a collision which took place in the English Channel in the month of March, 1889.” The writ was stated to be “issued by Thomas Cooper & Co., of No. 21, Leadenhall Street, in the City of London, solicitors for the said plaintiffs, who reside at New Brunswick and other places.”

 

On March 19, the defendants’ solicitors gave the usual undertaking to appear in due course; and on April 16 the statement of claim was delivered by T. Cooper & Co., as the plaintiffs’ solicitors. It commenced with an averment in the usual form that “The plaintiffs have suffered damage from a collision which occurred between the sailing-ship or vessel Vandalia and the screw steamship Duke of Buccleuch, belonging to the defendants,” and, after setting out the particulars of the collision, it concluded: “The plaintiffs claim damages for the injuries they have received in consequence of the said collision,” and a reference to the registrar assisted by merchants to ascertain the amount thereof.(1)

 

(1) By their defence the defendants did “not admit that the steamship Duke of Buccleuch was the vessel which collided with the Vandalia,” and after denying “all and each of the allegations in the statement of claim contained,” averred that the Duke of Buccleuchlanded her pilot at Dover at 4.45 P.M. on March 6, 1889, but had not since been heard of, having been lost with all hands.” By their counter-claim the defendants said that, “If it should be proved that the vessel with which the Vandalia came into collision was the Duke of Buccleuch, the defendants have suffered damage from the loss of the Duke of Buccleuchsolely caused by the negligent navigation of the Vandalia by the plaintiffs or their servants,” and the defendants claimed damages against the plaintiffs.

 

At the trial the learned judge intimated that the defendants could not counter-claim and, at the same time, deny identity. The defendants thereupon admitted that the Duke of Buccleuchwas the vessel in collision with the Vandalia, and amended their [*204]

 

On May 4, the action came on for hearing before Butt, J., and two of the Elder Brethren of the Trinity House as assessors, when the counsel for the defendants objected that the names and addresses of the plaintiffs had not been disclosed, and, therefore, as there was a counter-claim, the defendants would not, in the event of obtaining judgment, be able to shew against whom they had obtained it, so as to be able to enforce it, if necessary, in New Brunswick.

 

Butt, J., held, that the writ as issued was not a sufficient compliance with the rules under the Judicature Acts, as the names and addresses of all the plaintiffs should be given, or at least the names of all the owners of the vessel must be given, as the owners or master could sue as bailees of the cargo; but the action was allowed to proceed on the solicitors for the owners of the ship undertaking to supply the names of all the plaintiffs.

 

The names, description, and addresses of the owners of the ship were accordingly furnished, and as owners of cargo the following was given: “Funck, merchant, of Bishopsgate Street, London,” and the crew of the ship were described “as per articles, now residing at Wells Street, London, E.”

 

On May 27, pursuant to order, the writ was amended and ran, “Between George F. Smith (fourteen other names), owners of the ship Vandalia, Funck, owners of her cargo, and the crew of the said ship Vandalia, plaintiffs, and the Eastern Steamship Company, Limited, defendants.”

 

The trial of the action was subsequently adjourned to enable the Trinity masters to inspect the Vandalia; and on May 30, Butt, J., gave judgment pronouncing both vessels to blame, the Duke of Buccleuch for bad look-out, and the Vandalia, under s. 17 of the Merchant Shipping Act, 1873, for an infringement of art. 6 of the Regulations for Preventing Collisions at Sea by a possible obscuration of her red light by the foresail.(1) By the decree the learned judge in the usual form “condemned the owners of the steamship Duke of Buccleuch in a moiety of the counter-claim by striking out the first portion of the paragraph so as to begin with the words, “The defendants have suffered damage,” &c.

 

(1) The material parts of the judgment are set out at pp. 87 to 89 of the report of the case in the Court of Appeal, 15 P. D. 86. [*205] plaintiffs’ claim for damages, and condemned the owners of the ship Vandalia in a moiety of defendants’ counter-claim for damages,” and referred the assessment of the said damages to the registrar assisted by merchants.

 

Both plaintiffs and defendants appealed so far as the decree pronounced their respective vessels to blame.

 

The appeals came on for hearing on December 6 and 7, when the Court of Appeal varied the judgment of the Court below on the ground that the defect in the light of the Vandaliacould not possibly have contributed to the collision and that, therefore, the Vandalia was not to blame.(1) The decree “pronounced the collision in question in this action to have been occasioned solely by the fault or default of the master and crew of the steamship Duke of Buccleuch, and for plaintiffs’ claim for damages in consequence thereof. …”

 

The owners of the Duke of Buccleuch appealed to the House of Lords on the question whether the Vandalia was not also to blame, but on June 26, 1891, the decree of the Court of Appeal was affirmed, the House, consisting of four learned Lords, being equally divided.(2)

 

The owners of the Vandalia then brought into the Admiralty Registry their claim for the damages for which they sued, and were paid together with interest and costs.

 

In July, 1891, in preparing the claim for loss of cargo, the solicitors acting for the underwriters on the cargo in the Vandaliaascertained that, though the petroleum was invoiced to Henry Funck & Co., no interest in the cargo had passed to them, as that firm were only holders of the bills of lading as agents for sale. The solicitors thereupon, on July 8, issued a writ in personam against the Eastern Steamship Company, Limited, claiming damages caused through a collision at sea in March, 1889, between the Duke of Buccleuch and the Vandalia. The plaintiffs were described as Meissner Ackerman & Co., of New York, and the claim was for 5425l. 13s. 8d., with interest from the date of the collision. An appearance was entered to this writ, and, on July 16, a formal consent to admit their liability for the damages

 

(1) Reported 15 P. D. 86.

 

(2) Eastern Steamship Co. v. Smith. The Duke of Buccleuch, [1891] A. C. 310. [*206]

 

was sent to the solicitors of the defendants to be signed on behalf of their clients; but, on July 29, the solicitors of the defendants wrote disputing the liability of the defendants in the action, and claiming their right to defend and go to trial. Thereupon the cargo-owner took out a summons in the original action for an order that the name of Meissner Ackerman & Co. of New York, merchants, should be added as plaintiffs or substituted for Funck, appearing in the proceedings as the owner of the cargo of the vessel Vandalia.

 

On February 24, 1892, this application was refused by the registrar with costs, and, on appeal to the judge in chambers, was adjourned into court.

 

Kennedy, Q.C., in support of the application, relied upon Order XVI., rr. 2 and 11, of the Rules of the Supreme Court, 1883, as giving the power to add or substitute a plaintiff.

 

Barnes, Q.C., and F. Laing, for the owners of the Duke of Buccleuch, referred to rule 12(1) of Order XVI., and contended that there was no power to grant the application, which was in substance to vary a decree of the Court of Appeal affirmed by the House of Lords and, therefore, now final. The rules dealt with proceedings before trial and were for the purpose of preventing persons who were parties from being defeated by the absence of some other party, but did not allow of new plaintiffs being put on the record after judgment.

 

The further arguments of counsel sufficiently appear from the judgment of Jeune, J., and all the cases cited for the plaintiffs and defendants are mentioned therein.

 

Cur. adv. vult.

 

 

1892. March 29. JEUNE, J. (after stating the nature of the action and the proceedings which had given rise to the application, continued). It seems to me clear, that if I have power to make this amendment it ought to be made. The owners of the Duke of Buccleuch have been in no way prejudiced by the name of

 

(1) Rules of the Supreme Court, 1883, Order XVI., r. 12: “Any application to add, or strike out, or substitute a plaintiff or defendant, may be made to the Court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner.” [*207]

 

Mr. Funck having been on the record instead of that of Messrs. Ackerman – they do not appear to have cared to be told his full name – and, if it were not that they desired to fight the questions at issue again, they would not be prejudiced by having to pay Messrs. Ackerman in this action instead of being made defendants in another action. But the question is, have I power to make the amendment?

 

The motion is put by Mr. Kennedy for Messrs. Ackerman & Co. on Order XVI., rr. 2 and 11. Those rules provide as follows:- [The learned judge read these rules and proceeded:-] As I have already intimated, it appears to me that this case satisfies the conditions of rule 2, in that there was a bon‰ fide mistake. I will consider presently whether it is necessary for the determination of the real matters in question that the names of the true owners of the cargo should be on the record. I will consider also whether it does not satisfy the condition of rule 11, and whether the presence of the cargo-owner before the Court is not necessary in order to make the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. But it is said, and this is the real and only point for decision, that in this case final judgment has been given by the House of Lords, and that after that, whether you look at the words “at any stage of the proceedings” in rule 11, or at the language of rule 2, “for the determination of the real matter in dispute,” it is now too late to allow the amendment asked for.

 

Two arguments, but really, I think, converging to one, were presented. It was said that a plaintiff who has a cause of action cannot be substituted for one who has none, and reliance was placed on the decision in Walcott v. Lyons (1); but it will be observed that in that case the Court of Appeal would apparently have allowed the substitution if the terms they imposed had been acceded to; and in the case of Long v. Crossley (2), a plaintiff with a right was clearly substituted for a plaintiff with none. Indeed, the provisions of rule 2 making a bon‰ fide mistake a condition seem to include and almost to point to the person whose name was erroneously brought forward having no

 

(1) 29 Ch. D. 584.

 

(2) 13 Ch. D. 388. [*208]

 

right in himself. I think, however, that this argument was really put forward only in combination with the argument founded on the proposition that the addition or substitution of a party cannot be made after a final judgment.

 

No doubt such a proposition is perfectly true. The case of Attorney General v. Corporation of Birmingham (1) shews, that in the Chancery Division, after the final decree one defendant cannot be substituted for another; and the case of Keith v. Butcher (2) shews that for this purpose in the Chancery Division final decree means the actual drawing-up and entering of the final decree; and when, as in the case referred to by Mr. Barnes, Munster v. Cox (3), the question is one of adding, after final judgment, a defendant who had hitherto been no party, for the purpose of getting execution against him, the case is of course even clearer.

 

But this case is in the Admiralty Division, and what has to be considered is, what do the words “at any stage of the proceedings” in rule 11, or “determination of the matter” in rule 2, mean, when applied to proceedings for collision before that division? The question of real importance in such cases is so clearly what was the conduct of persons on board each ship, or, to put it in another way, which ship is liable to the other ship, her cargo and crew, and the personalities of the owners of the ship and cargo are generally so immaterial till it comes to payment and receipt of the damages, that often, if not usually, in practice the names of the owners of ship and cargo do not appear in the pleadings, and seldom, if ever, is any question of the ownership of ship or cargo raised at the hearing. The result is, that really the only question determined by the decree is the fixing of the liability; the amount of damages and the persons to receive them are questions left to be determined by the registrar and merchants. I think that the fact that the damage remained to be assessed rendered the decree of the judge at the hearing no final judgment. The learned counsel for the Duke of Buccleuch relied on the analogy of common law, and said, on the authority of Chapman v. Day (4), in the Queen’s Bench Division,

 

(1) 15 Ch. D. 423.

 

(2) 25 Ch. D. 750.

 

(3) 10 App. Cas. 680.

 

(4) 48 L. T. (N.S.) 907. [*209]

 

that a judgment determining the liability was a final judgment, though the damages remained to be assessed; but I think that the judges in the Court of Appeal, in reversing that judgment(1), intended to express, as they clearly held, a different view, because they followed their judgment in Phillip v. Homfray (2), a case in the Chancery Division given shortly before, and in the latter case Bowen, L.J., giving the judgment of himself and Cotton, L.J., said(3): “The claim of the plaintiffs is in substance, so far as these inquiries are concerned, an action for trespass. The inquiries, whatever the form of language in which they are directed, are an assessment of damages, and until they have been completed the action is still undetermined.” It would appear, therefore, that both in the Queen’s Bench and Chancery Divisions a judgment is not to be considered as terminating the action whilst damages remain to be assessed. But in the Admiralty Division the matter does not rest only on assessment of damages. The title of the plaintiffs remains after the decree open to question, and it appears to me that the counsel for the Duke of Buccleuch are in the dilemma that if the decree is final Mr. Funck must be regarded as owner of the cargo, or if he is not so to be regarded, the decree is not final.

 

The practice in the Admiralty Court goes far to shew that a decree at the hearing was never considered final in the sense that a person could not be introduced afterwards as a party to the suit for the purpose of getting assessed and receiving damages. In the case of The Ilos (4), where an action was brought, not by the registered owner, but a person having a bill of sale (whether taken after or before the collision does not appear), Dr. Lushington, when the matter was before the registrar and merchants, refused to dismiss the defendant on the ground of want of title in the plaintiff, ordered the reference to proceed, and added, that if there was any doubt who was entitled to receive the amount of compensation, after it had been assessed, he should direct the amount to be paid into the registry, and throw upon the party claiming it the onus of establishing his ownership.

 

(1) 49 L. T. (N.S.) 436.

 

(2) 24 Ch. D. 439.

 

(3) 24 Ch. D. 439, at p. 466.

 

(4) Sw. 100. [*210]

 

In The Minna (1), Sir Robert Phillimore approved and followed the case of The Ilos.(2)

 

It is said by Mr. Barnes, that in both these cases the plaintiffs on the record had, or might have had, beneficial rights; but that does not appear to me to meet the point that the Court of Admiralty considered the decree of the judge as leaving still open the question of the title of the plaintiffs as owners of ship or cargo.

 

Reliance is placed on rule 12, as shewing that no application to add or substitute a party can be made after the trial, an argument which no doubt commended itself to the mind of Field, J., in Heard v. Borgwardt (3), as supporting the decision in Attorney General v. Corporation of Birmingham (4), which he was following. But I do not think that rule militates against the view I have expressed. If the word “trial” does not include the reference to the registrar and merchants, as I think it does, then the mode of application is left unprovided for in the case where the trial within the meaning of rule 12 does not terminate every stage of the proceedings within the meaning of rule 11.

 

The proper order, I think, will be to add Messrs. Ackerman as plaintiffs, as, in this way, any rights the defendants may have against Mr. Funck will be preserved. The costs of this application must be paid by the applicants, and I think they should be paid before Messrs. Ackerman are added(5) as plaintiffs. Costs, other than the costs of this application, will be reserved.

 

On appeal,

 

Barnes, Q.C., and F. Laing, for the appellants, the owners of the Duke of Buccleuch, argued as in the Court below, and, in addition to the cases there cited, referred to the following: Onslow v. Commissioners of Inland Revenue (6); Ex parte Chinery (7); Salaman v. Warner. (8)

 

(1) Law Rep. 2 A. & E. 97.

 

(2) Sw. 100.

 

(3) W. N. (1883) 173.

 

(4) 15 Ch. D. 423.

 

(5) By the order, as drawn up, Messrs. Meissner Ackerman & Co. were substituted as plaintiffs for Mr. Funck.

 

(6) 25 Q. B. D. 465.

 

(7) 12 Q. B. D. 342.

 

(8) [1891] 1 Q. B. 734. [*211]

 

Finlay, Q.C., and Stubbs, for the respondents, the owners of the cargo in the Vandalia, were not called upon.

 

LORD ESHER, M.R. The whole question, as a matter of law, turns on Order XVI., rr. 2 and 11. The rule which applies to the case is rule 2; but it is necessary to carry into rule 2 the requisites of rule 11. It is obvious that there might be a wrong plaintiff in this matter, because, if Mr. Funck was the consignee of bills of lading, indorsed to him in order that he might act for the owner, he was agent for the owner. The real owner was still the real plaintiff, though the name of his agent was put on the record. It is said that Mr. Funck’s name was put on without his authority; but these attempts are all made by two sets of underwriters. The underwriter of the cargo was the real plaintiff. I will assume that the wrong name was put on the record. It was not fraudulent. It was not done with any motive; it was a mistake. The rule said, that if a wrong plaintiff was put on, they might put on the right one. It was within the very words of the two rules. But it is said that a judge cannot do that after the decree fixing the liability. That was an argument against the very words of the rule, which said “at any stage.” The decree fixing the liability in the Admiralty Court is not a final judgment. The proceedings are not over. If there were no other judgment to be signed, the proceedings are not over, for the matter has to be sent to the registrar and merchants. I take it that there would be, if necessary, another decree after the registrar and merchants had found what the amount would be. If there was any fuss about it, that would be drawn up in the final order, and then there would be a monition. If they have altered their practice in the Admiralty Court, and issue a fieri facias, that makes it the more strong. It is said that there was no consent in writing on the part of the right plaintiff. The appellants know that the man is the right plaintiff; but it is necessary that his consent in writing should be got. Very well, it shall be got. The order must stand, with the variation that the plaintiffs’ consent in writing is to be obtained within six weeks. The appellants will have to pay the costs of the appeal. [*212]

 

 

FRY, L.J. The words of Order XVI., rr. 2 and 11, are quite ample to justify and require the amendment. I base my decision upon the words “at any stage of the proceedings.” It has been argued that the rules do not apply after final judgment. They apply, in my opinion, as long as anything remains to be done in the case. In this case there remains the assessment of damages. In this instance the name of a person has been improperly joined as plaintiff, and the names of other persons are necessary to settle the questions at issue. It is the duty of the Court to add the names of the right plaintiffs.

 

LOPES, L.J. The case is well within the rule.

 

Order to stand with variation that plaintiffs’ consent in writing be obtained within six weeks. Appellants to pay costs of appeal.