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Defence of compulsory pilotage'

foreign ships.

evidence, or otherwise applicable to foreign ships as lex fori (m).

The defence of "compulsory pilotage" is available for a foreign as well as for a British ship (n). The statutory available for exemption of owners from liability for damage done by a ship when in charge of a compulsory pilot probably applies to foreign ships; and, independently of the statute, foreign as well as British owners are not liable for the acts of a person placed in charge of their ship by the state (o). The employment of a pilot may be made compulsory on a foreign ship by a British statute beyond three miles from the shores of the United Kingdom (p).

(m) It was held by Dr. Lushing-
ton in The Zollverein, Swab. Ad.
96, that s. 298 of 17 & 18 Vict.
c. 104 was a lex fori relating to
remedies. In that case the section

was held not to apply in the case of
a collision between a British and a
foreign ship on the high seas, so as
to prevent the British ship from
recovering against the foreigner.
The ground of the decision was that
the previous section (s. 296), contain-
ing the rule of the road, was a muni-
cipal law not applicable to foreign
ships on the high seas, and that
therefore s. 298, which depended on
s. 296, had no application to the
foreign ship. Since, therefore, the
foreigner was not prevented by s. 298
from recovering against a British ship
that to which by the maritime law
he would be entitled, it was held to
be unfair to allow the foreigner to
avail himself of a breach by the
British ship of the municipal law as
a defence. The existing Regulations
being international, it is submitted
that the decision in The Zollverein,
as to the application of s. 298 of the
Act of 1854, affords no ground for
contending that s. 17 of the Act of
1873 does not apply to foreign ships.
In The Nevada, Asp. Mar. Law
Cas. 477, however, the Vice-Admi-
ralty Court of N. S. Wales held that

s. 33 of the Act of 1862 did not apply to an American ship. In The Germania, 3 Mar. Law Cas. O. S. 140, s. 29 of 25 & 26 Vict. c. 63 was applied to a foreign ship; but in the same case on appeal (ibid. 269) Lord Romilly appears to have considered that s. 33 of that Act (as to "standing by") applied only to British ships. In The Thuringia, 1 Asp. Mar. Law Cas. 283, nothing was said as to the application of that section to a foreign ship on the high seas. As the effect of ss. 57 and 58 of the same Act, see the observations of Lord Chelmsford in The Amalia, 1 Moo. P. C. C. N. S. 471, 485.

(n) As to compulsory pilotage generally, see Ch. V.

(0) 17 & 18 Vict. c. 104, s. 388; The Maria, 1 W. Rob. 95, 106. In The Girolamo, 3 Hag. Ad. 169, and other cases under 6 Geo. IV. c. 125, it was held that the statutory exemption of owners from liability for the fault of a compulsory pilot did not apply so as to exempt of the owners of a foreign ship in proceedings in rem. In The Vernon, 1 W. Rob. 316, Dr. Lushington appears to have considered that the statutory exemption of owners was lex fori.

(p) The Annapolis and The Johanna Stoll, Lush. 295.

ship of a

It is a principle of international law that a sovereign Damage by prince or state cannot be sued in a foreign Court. And it foreign seems that this principle applies in the case of proceedings sovereign; proceedings in rem against the public ship of a foreign sovereign (q). in rem. But it has been said by Sir R. Phillimore that if a ship of a foreign sovereign engages in trade, she is liable to arrest, and the sovereign must be taken to have waived the privilege of immunity from arrest which attaches to a public ship of a foreign state (r). It has also been held that it is not in the power of the Crown, without the consent of Parliament, to exempt the trading ship of a foreign sovereign from arrest (s).

A frigate of the United States was stranded on the south coast of England, and received salvage services from an English tug. She had on board, under an Act of Congress, and for public purposes, cargo owned by American citizens. The tug-owner sought to arrest the frigate and her cargo in a claim for salvage. It was held that no warrant for arrest could issue either in respect of ship or cargo (t).

The Parlement Belge, a vessel belonging to the King of the Belgians, commanded and manned by officers and men commissioned and paid by him, was engaged in carrying mails in connection with the British Post Office, together with passengers and cargo. On her voyage from Ostend to Dover, when close to Dover pier, she ran into a British ship at anchor. Notwithstanding the fact that a convention had been entered into between Her Majesty and the King of the Belgians declaring that the mail boats, of which The Parlement Belge was one, should be deemed to be ships of war, and should not be liable to arrest, it was held by Sir R. Phillimore that she was liable to

(q) The Constitution, 4 P. D. 39. See, however, The Charkieh, L. R. 4 A. & E. 59; ibid. 8 Q. B. 197.

(r) The Charkieh, supra; but the dictum was not necessary to the

decision of the case: The Swift, 1
Dods. Adm. 320, 339.

(s) The Parlement Belge, 4 P. D.
129.

(t) The Constitution, 4 P. D. 39.

Foreign ship in collision

with British

proceedings in rem at the suit of the owner of the injured vessel (u).

A foreign ship that has injured a British ship, or property of a British subject, in any part of the world, may ship out of the be detained if found within three miles of the coasts of United Kingdom liable in the United Kingdom (x). But owners resident abroad can seldom be sued personally in respect of a collision on the high seas below low-water mark of the shores of the United Kingdom (y).

rem.

bell's Act to

Application of It has been held by Sir R. Phillimore that the repreLord Camp- sentatives of foreigners killed in a collision on the high foreigners and seas on board a foreign ship can recover damages under foreign ships. Lord Campbell's Act in the Courts of this country (2); and under the same Act a foreign ship has been made liable, in proceedings in rem, for loss of life on the high seas caused by her negligent navigation (a).

Collision abroad;

application of foreign law.

The liability for damage done by a vessel depends, in some cases, upon the law of the place where the collision occurs, and of the country to which the ship belongs. If it occurs in the territorial waters of a country by the law of which an owner is not liable for the wrongful acts of his officers or crew, it seems that he would not be liable in the Courts of this country. Nor is he liable, in this country, for a collision in a foreign country, unless the negligence causing the collision is that of a person for whose acts he is responsible by the law of England. "No action can be maintained in the Courts of this country on account of a wrongful act either to a person or to personal property committed within the jurisdiction of a foreign country, unless the act is wrongful by the law of the

(u) The Parlement Belge, 4 P. D.
129; see Addenda.

(x) 17 & 18 Vict. c. 104, s. 527.
(y) Harris V. Owners of The
Franconia, 2 C. P. D. 173; and see
infra, p. 98.

(2) The Explorer, L. R. 3 A. & E.

289; and see infra, p. 98.

(a) The Guldfaxe, L. R. 2 A. & E. 325. There is, however, doubt whether it is competent to proceed in rem for damages under Lord Campbell's Act: see above, p. 64.

country where it is committed, and also by the law of this country" (b).

In The M. Moxham, an English company, possessed of a pier in Spain, instituted an action in the Admiralty Court against a British ship for negligently injuring the pier. The ship-owners, by their answer, pleaded that by the law of Spain they were not liable for the negligence of the crew in the navigation of the ship. The Court of Appeal held that, assuming the Court had jurisdiction, the law of Spain was applicable, and that the plea was good (c).

The owners of a British ship, which had been in col- Compulsory pilotage lision with a foreign ship in the Scheldt, were sued by the abroad. foreign ship in this country. The British ship alleged that the collision was caused entirely by the negligence of the pilot, whom, by the Belgian law in force in the Scheldt, she was compelled to take. By the Belgian law owners are liable for the acts of a compulsory pilot. It was held by the Privy Council (reversing the decision of Court below) that the Belgian law, which imposed a liability upon owners to which they were not subject, either by the law of this country or by any principle of justice, had no application, and that the British owners were not liable (d).

In an action in a Common Law Court by the owners of a British ship against a French subject for a collision with a French ship on the high seas, it was pleaded that the injury complained of happened out of British jurisdiction, and that it was not committed by the defendant personally, but by the master of the French ship; that the defendant was a French subject; that by the law of France he was not liable for the acts of the master; and that by the same law a French corporation, who were the proprietors

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Res judicata: effect of foreign judg.

ment.

of the ship, and the master's employers, were alone liable. The plea was held good (e).

The judgment of a competent foreign Court upon the merits of a collision, given in the presence of both parties, is a bar to an action in this country between the same parties for the same collision (f). If the parties are not the same, as where the ship-owners sue in one country and the cargo-owners in the other (g), or if the foreign tribunal had not jurisdiction (h), or if the plaintiffs in this country were not subjects of, nor resident, nor present in the foreign country, and did not as plaintiffs abroad select the foreign tribunal (i), or if the foreign judgment went by default (j), it is not a bar to an action here, and is immaterial. It has been held, in a recent case, by Sir R. Phillimore, that a foreign judgment, condemning a ship for collision, the Admiralty may be enforced against the ship by Admiralty proceedings in rem in this country. The City of Mecca, a British

Foreign judg

ment in rem enforced by

Court of this country.

steam-ship, was in collision on the high seas with a Portuguese ship. The City of Mecca was arrested in Portugal and found by the Portuguese Court to be in fault for the collision. Owing to some informality she was released from arrest by the Portuguese authorities, and came to England, the foreign judgment remaining unsatisfied. She was arrested in England by the plaintiffs in the Portuguese action; and it was held that international comity required that the English Admiralty Court should enforce the decree of the Portuguese Court (k).

(e) The General Steam Navigation Co. v. Gillou, 11 M. & W. 877, 895. (f) See Phillimore's Internat. Law, 2nd. ed. IV. 733, seq.; Westlake's Private International Law, 376.

(g) Cf. The Pennsylvania, 19 Wall. 125; The Pennsylvania, 3 Mar. Law Cas. O. S. 477. As to the effect of a foreign judgment in rem, see Castrigue v. Imrie, L. R. 4

H. L. 414.

(h) The Greifswald, Swab. Ad. 430; Havelock v. Rockwood, 8 T. R. 268.

(i) General Steam Navigation Co. v. Gillou, 11 M. & W. 877, 894.

(j) The Delta and The Erminia Foscolo, 1 P. D. 393.

(k) The City of Mecca, 5 P. D. 28. It was held that the Judicature Acts did not interfere with the ancient jurisdiction of the Court in such a case; this case is under appeal.

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