shipkeeper. The Jarnia had a ladder over the quarter by which to descend into a boat in order to go from the ship to the quay, but the Mouldslie had not; and the plaintiff was in the habit, when he wished to go on shore, of passing over the Jarnia and going down her ladder into the boat and no objection was made to his doing so. On the night in question, when it was dark, the plaintiff was hailed from the quay, and when crossing the Jarnia to go ashore fell down one of its hatchways, in consequence of one of the hatches having been left open by Miller, the shipkeeper of the Jarnia. A certified copy of the register of the Jarnia was given in evidence, by which it appeared that the defendant was the registered owner of that ship, but there was no evidence to show that the defendant was beneficially interested in the Jarnia, or had been on board or near her, nor by whom Miller was appointed. The Dock Company have power to make regulations as to the lighting of lamps. within the docks, and The Harbours, Docks, and Piers Clauses Act, 1847, 10 & 11 Vict. c. 27. s. 71., makes it an offence for any person to have a lighted candle or lamp in any vessel within the dock except with the permission of the harbour master.

It was objected for the defendant that the certified copy of the ship's register was no evidence that the defendant was responsible for the negligence which caused the accident, and that on the evidence the plaintiff was guilty of contributory negligence. The learned Judge was of opinion that the registry of ownership, without more, was not sufficient, but left to the jury the questions as to negligence of the person in charge of the ship and contributory negligence by the plaintiff. The jury found a verdict for the plaintiff,

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damages 4507., leave being reserved to move to enter a nonsuit or a verdict for the defendant.

In the following Term,

Brett obtained a rule accordingly.

By The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104. s. 107., re-enacting stat. 14 & 15 Vict. c. 99. s. 12., Every register of any British ship may be proved in any Court of justice either by the production of the original or by an examined copy, or by a copy purporting to be certified under the hand of the registrar or other person having the charge of the original; "and every such register or copy of a register, and also every certificate of registry of any British ship, purporting to be signed by the Registrar or other proper officer, shall be received in evidence in any Court of justice &c. as prima facie proof of all the matters contained or recited in such register when the register or such copy is produced, and of all the matters contained in or indorsed on such certificate of registry, and purporting to be authenticated by the signature of a Registrar, when such certificate is produced."

The rule was argued in Hilary Term, January 13, and Easter Term, May 7.

W. Bush Cooper, for the plaintiff.-By sect. 107 of stat. 17 & 18 Vict. c. 104. the certificate of the ship's register is primâ facie proof of the ownership, and the defendant, being registered owner, is primâ facie liable for the negligence of the person in charge of the ship. In an action of tort the presumption is that the registered owner is the beneficial owner. [Blackburn J. The presumption is weaker when the ship is lying in dock than when it is being navigated.] In the case of a

hackney carriage the presumption is that the person registered in Somerset House as the proprietor is master of the driver. In all cases of chattels which cannot be carried about the person, such as ships, carriages and horses, the presumption is that the person in charge is the servant of the owner. In the present case, the ship being for sale, the shipkeeper was on board for the purpose of answering questions as well as taking care of the ship. [Blackburn J. He might be the servant of the broker who was employed to sell the ship.] It was not shewn to be the practice of brokers to send their servants to remain on board ships which they are commissioned to sell. And there was no evidence that this ship was mortgaged. [Lush J. Here the wrongful act was done by a person who had charge of the hatchway: suppose it had been left open by the stevedore.] The unloading of this ship had ceased. In Cox v. Reid (a) and Fletcher v. Reid (b) Best C. J. and Lord Gifford C. J. held that registered ownership was primâ facie evidence of liability for the repairs of a ship. In Frost v. Oliver (c) and Mitcheson v. Oliver, in error (d), where the case was left to the jury, it was not questioned that the certificate was primâ facie evidence. [Mellor J. Cox v. Reid (a) and Fletcher v. Reid (b) go farther than the later cases. Blackburn J. In Cox v. Reid there was a verdict for the defendants; therefore the direction of Best C. J. could not be reviewed.] Proof of a fact which operates in discharge of a party lies upon him; Ross v. Hunter (e), per Buller J.: the defendant therefore should have

(b) Ry. & M. 202, note (a).
(d) 5 E. & B. 419.

(a) Ry. & M. 199.

(c) 2 E. & B. 301.

(e) 4 T. R. 33. 38.

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shewn that he was not the master of the person whose negligence caused the injury to the plaintiff.

Brett, for the defendant.-In an action charging the owner with negligence, the person guilty of it must be shewn to be not only agent but servant. In an action on a contract entered into on behalf of the ship by the master, the register is no evidence of ownership of the ship; Myers v. Willis (a). In Hackwood v. Lyall (b), which was an action for repairs done to a vessel of which the defendant appeared on the register to be part owner, Cresswell J. said, p. 125, "at one time, the register was considered to be conclusive evidence of ownership, in an action for repairs or for necessaries supplied to a ship. Now it is not considered even primâ facie evidence." Jervis C. J. added, "The Register Acts are mere matter of fiscal regulation." It is consistent with the facts proved here that the defendant had no interest in the Jarnia, and that he was not the employer of the shipkeeper. It lies on the plaintiff to give more evidence than what is consistent with the defendant not being owner. [Blackburn J. If a man is shewn to be legal owner, the presumption is that he is beneficial owner. Mellor J. Suppose the owner of a house puts in a person to take care of it.] The register is the legal document for shewing who is the legal owner of the ship; but often the ship is registered in the name of a trustee, and then the legal owner is not the employer of the master of the ship. In Mitcheson v. Oliver, in error (c), Parke B. said, "In this case, on the evidence it appears that the (b) 17 C. B. 124. (c) 5 E. & B. 419. 445.

(a) 17 C. B. 77.

defendant did not, by word or deed, in any way hold
out Thomson as his master; and therefore the defect
in this part of the summing up is material, and would
influence the verdict." [Blackburn J. In Frost v.
Oliver (a) all the Judges said that the register was
primâ facie evidence, and nothing to the contrary was
said in Mitcheson v. Oliver, in error, which was in effect
an appeal from the judgment of the majority of this Court
in Frost v. Oliver: the register of ownership was treated
as one of the elements of a holding out of Thomson by
the defendant as his agent. [Mellor J. In Mitcheson v.
Oliver, in error (b), there were other facts besides the
register.] That was a case of estoppel: there was no
direct appointment of the master. [Blackburn J. If a
person takes possession of the goods of the deceased, that,
until explained, is evidence that he is executor. If a person
enters into occupation of a house the owner has a right
to treat him as tenant.] In those instances there is no
holding out. In Mitcheson v. Oliver, in error (c), Alderson B.
said, "Holding himself out' means holding himself out
in a character which he does not really bear, but which
authorises another person to trust him." In Maclachlan
on Merchant Shipping, p. 103, all the cases being collected
in notes 3 and 4, it is said, "the defendants, therefore,
are not liable, on contracts for the ship made by the
master, merely because they are owners, or appear on
the register as such: or hold themselves out as owners,
and are in possession of the ship at the time of the con-
tract
unless the master is also held out by
the defendants as their master of the particular ship,
acting on their behalf in the conduct, management, and
(b) 5 E. & B. 419.
(c) 1 Jur. N. S. 900. 906.

(a) 2 E. & B. 301.

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