In The Robert Pow (1863) B. & L. 99 Dr. Lushington held that, when ship A so towed ship B that ship B took the ground, the resultant damage to ship B was not “damage done by any ship” within s. 7 of the Admiralty Court Act 1861 which, he said, meant damage by collision. In The Jade [1976] 1 All E.R. 920; sub nom. The Eschersheim [1976] 2 Lloyd’s Rep. 1, the House of Lords held that, when ship A beached her tow, ship B, with a view to salvage operations, damage by the sea to ship B was “damage done by a ship” within s. 1(1) (d) of the Administration of Justice Act 1956.

The latter decision is unsurprising. Firstly, s. 1(1) (d) corresponds to art. 1(1) (a) of the Brussels Convention 1952 contemplating jurisdiction for “damage caused by any ship.” Secondly, the English cases since 1863 on statutory Admiralty jurisdiction make it clear that, while ship A must still in a sense be the instrument of damage, physical contact between ship A and ship B is unnecessary. Thus in The Industrie (1871) L.R. 3 A. & E. 303 Sir Robert Phillimore ignored Counsel’s reliance on The Robert Pow, holding that s. 7 of the Act of 1861 covered damage to ship B by hitting Hartlepool town wall in an attempt to avoid ship A which had been negligently anchored without lights. He was unable to see why the absence of actual collision with ship A should make any difference. A few years later in The Sisters (1876) 1 P.D. 117 jurisdiction was not disputed when ship A caused ship B to change course and collide with ship C. The Court of Appeal found ship A to be the cause of the mischief. A limit was apparently reached in The Vera Cruz (1884) 9 P.D. 88: the Court of Appeal held that an action by a widow for damages for the loss of her husband, drowned when his ship was struck by ship A, was outside s. 7 of the Act of 1861. This case might have been entirely distinguished from the earlier ones but for the remarks of the Judges. Thus Brett, M.R., said (p. 99) that the section covered “a case in which a ship was the active cause, the damage being physically caused by the ship. I do not say that damage need be confined to damage to property, it may be damage to person, as if a man were injured by the bowsprit of a ship.”

Bowen, L.J., remarked (p. 101): “ ‘Done by a ship’ means done by those in charge of a ship, with the ship as the noxious instrument.”

In 1974 in The Jade (sub nom. The Eschersheim [1974] 3 All E.R. 307; [1974] 2 Lloyd’s Rep. 188) Brandon, J., held that the events outlined above did not amount to “damage done by any ship”; this, the salvors successfully contended, “meant only physical damage of which a ship was the immediate instrument.” This holding was reversed on appeal, but Counsel felt sufficiently confident to go to the House of Lords where, as we have seen, the Court of Appeal was upheld. Counsel must have been encouraged, not only by the observations quoted from The Vera Cruz, but by general acceptance of an analogy with the decision of the House of Lords in Currie v. M’Knight [1897] A.C. 97. In this case three ships were moored side by side at an open quay at Port Askaig. A gale arose placing them in danger. The crew of ship A, in the middle