Posted: 15/01/2025
This year marks the bicentennial anniversary of the founding of heritage maritime law firm Thomas Cooper in 1825. To celebrate this occasion, lawyers from Penningtons Manches Cooper will, for each month of 2025, be chronicling a different seminal case conducted by Thomas Cooper across its two centuries of English legal practice.
The first article in this series centres on a House of Lords’ judgment handed down near the close of the 19th century in Dunlossit (1897) AC 97. The Thomas Cooper partnership, then of 21 Leadenhall Street, London, had by 1897 already been in the business of maritime legal practice for some 70 years.
The year in question was the diamond jubilee of Queen Victoria and Britain had, for some half a century, been experiencing its own industrial revolution, mechanising its processes of manufacture and transportation. Thomas Edward’s Scrutton’s preface to his first edition of Scrutton on Charterparties and Bills of Lading, published a decade earlier in 1886, observes:
‘[t]he last twenty years have seen what almost amounts to a revolution in the shipping trade of Great Britain. Steamers have supplanted sailing vessels and the electric telegraph has placed the centres of commerce throughout the world in immediate communication with each other. At the beginning of this century, sailing ships made their one or two voyages a year, in a not too hurried manner, and the time of those voyages varied enormously as winds and waves might ordain. … The introduction of steam and the telegraph have changed all this.’
No longer was it necessary to grant the vessel’s master wide-sweeping authority to conduct the shipowner’s business in foreign ports once it became possible to do business direct from London. Powerful steam engines enabled voyages to be calculated with precision, and the huge capital invested therein meant that shipowners navigating their way through this new mechanised age sought to capitalise on every hour and minute that might be saved in the employment of their vessel.
In 1897, that hallowed institution, the English Commercial Court, was a mere two years’ old. And this newness was well-met, as the worth of earlier maritime judgments, concerned with ‘the ordinary authority of the master’ in faraway lands or the nuances of a bygone era of sailing ships, had rapidly faded into obsoletion.
It was at this time that Thomas Cooper had been before the House of Lords on the appeal of a wet matter from the Scottish courts, concerning a contact incident involving steamships in Scottish waters. The dispute concerned damage to SS Easdale, which was one of three vessels moored alongside an open quay in November 1893 at Port Askaig, in the Sound of Islay, where there was no harbour. SS Dunlossit was in the centre of this tier, with Easdale moored on the outside. Easdale had been moored to the quay by cables passing over the deck of Dunlossit.
A violent gale occurring at night had made the position of the vessels insecure. By the following morning, it was apparent to the crew of Dunlossit that their vessel was at serious risk of damage from contact with the vessels either side. The crew got up steam and then cut the mooring ropes of Easdale in order to stand out to sea.
The master of Easdale had been made aware of this course of action in advance, having refused to let go its moorings. Two of Easdale’s crew had defected, meaning the vessel was short-handed and purportedly unable to get up steam. It was driven ashore and damaged, resulting in a claim worth 407l 4s 6d, equivalent to around £70,000 today.
Dunlossit was arrested and judicially sold. A competition over the proceeds of sale ensued between Dunlossit’s mortgagee and the owners of Easdale. At first instance, the sheriff-substitute of Lanarkshire had held that the act of Dunlossit’s crew constituted an act of the ship which was sufficient to create a maritime lien over the proceeds of the judicial sale for the cost of the damage to Easdale.
A maritime lien is a form of charge against a ship and arises by operation of common law in respect of a few limited categories of claims, including salvage, crew wages, and for damage done by the ship. The lien immediately attaches to the vessel in rem, meaning it passes with the vessel and survives a transfer of ownership. The lien affords its holder an additional means of enforcing their claim, enabling them to proceed both in personam against the defendant and in rem against the culprit vessel. Maritime liens are privileged claims, meaning the lien holder has the highest priority in the order of creditors. If the owners of Easdale had a maritime lien, they would have priority over the proceeds of sale, to the exclusion of Dunlossit’s mortgagee.
By 1897, the concept of a maritime lien was well-established in English law but unheard of in Scottish law. The sheriff-substitute’s first-instance decision was correspondingly reversed by the Scottish Court of Session, which held that, although the cutting of Easdale’s ropes was a wrongful act, the circumstances did not give rise to a maritime lien. Members of that court opined that this English doctrine had no place at all in Scottish law.
The case was again appealed, although the Court of Session’s decision that the act of cutting Easdale’s ropes was wrongful remained final. The House of Lords’ determination was accordingly confined to whether English and Scottish admiralty law were the same, and whether a maritime lien did arise from this apparently wrongful act.
The decision of the house was unanimous. While English and Scottish law differ in various respects, the admiralty law of the two countries is the same, namely ‘British admiralty law’. The growth of British shipping had caused the admiralty law of England to predominate but recourse could be had to both English and Scottish court decisions. It would be most unsatisfactory if a collision caused by negligent navigation could give rise to a maritime lien in any English port, but no lien attached to that same vessel in a Scottish port.
However, no maritime lien did attach on the peculiar facts. As Lord Halsbury LC, still the most longstanding Lord Chancellor on record, and first editor of Halsbury’s Laws of England, made clear:
‘That it was done by the crew of Dunlossit does not make it an act of the Dunlossit; and the phrase that it must be the fault of the ship itself is not a mere figurative expression, but it imports, in my opinion, that the ship against which a maritime lien for damages is claimed is the instrument of mischief, and that in order to establish the liability of the ship itself to the maritime lien claimed some act of navigation of the ship itself should either mediately or immediately be the cause of the damage.’
One and a quarter centuries after judgment was given, we can only now speculate whether the defection of Easdale’s crew affected its master’s attitude towards Dunlossit; a matter on which their lordships never opined. Nonetheless, the facts of the decision remain conspicuous in not giving rise to a maritime lien under English law.
The leading textbook Marsden and Gault on Collisions at Sea, 15th edition, cites Dunlossit for the proposition that such a lien will only arise ‘where it can be said that in some sense the damage was done by the ship herself, and not merely by those on board her.’ The courts of other common law nations, the USA, Australia, and Canada, have taken different views in either categorically declining to follow Dunlossit or at least viewing the authority with scepticism or as raising a somewhat artificial distinction.
Controversial in some respects, but not others, Marsden further acknowledges Dunlossit as high authority that Scots admiralty law is the same as English, ‘and one may with safety infer the Northern Irish’ … ‘[a]nd, one suspects, of the law of the Channel Islands and the Isle of Man.’
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