CHAPTER VIII. ships; collision in foreign waters. FOREIGN SHIPS-FOREIGN LAW. Law applic- IN collision cases where one or both the ships are foreign, able to foreign questions frequently arise as to the law applicable to the case, and particularly as to the application of British statutes to foreign ships. The general rule is that municipal laws are binding upon the subjects of the state by which they are enacted everywhere, but upon foreigners only when they are within its jurisdiction (a). The principle which governs questions of jurisdiction and remedies has been thus stated: "In regard to the merits and rights involved in actions, the law of the place where they originated is to govern. . . . but the forms of remedies, and the order of judicial proceedings, are to be according to the law of the place where the action is instituted, without any regard to the domicil of the parties, the origin of the right, or the country of the act" (b). Before the passing of 25 & 26 Vict. c. 63, foreign laws, and the general maritime law, touching the steps to be taken to avoid collision, and the extent of the shipowners' liability, differed from the law of this country, and questions of difficulty arose in the case of collisions where one or both ships were foreign as to the law applicable to the case. By the Act above mentioned it is provided, with (a) As to the limits of British jurisdiction, see The Saxonia and The Eclipse, Lush. 410; The Annapolis and The Johanna Stoll, Lush. 295; Regina v. Keyn, The Franconia, 2 Ex. D. 63: of Admiralty jurisdiction, infra, p. 209. (b) Story's Conflict of Laws, Ch. 14, § 558, 7th ed. p. 702; and see Donn v. Lippman, 5 Cl. & Fin. 1. So a foreigner in France suing for a collision is subject to the disabilities (fin de non recevoir) of the Code de Commerce, Arts. 435, 436; Abordage Nautique, Caumont, §§ 82, 83. reference to the rule of the road and the extent of shipowners' liability, that in the courts of this country foreign ships shall be judged by the British law. There are, however, several points upon which the decisions above referred to (c) are material, and as to which there is some doubt whether British or foreign law is to prevail. As stated above, the general rule-where the question is not expressly decided by statute-is, that as to the rights and merits of the parties the law of the place of collision, and as to remedies and procedure the law of the tribunal (lex fori), is to prevail. The form in which the question may arise at the present day is indicated below. Courts where Actions for collision are said to be communis juris, and Jurisdiction the Admiralty Court has never refused to entertain an action merely because both ships were foreign (d), or their owners not British subjects (e), or because the collision occurred in foreign waters (f). The ancient jurisdiction of the Admiralty extended over Limits of all waters where the tide ebbs and flows and where great jurisdiction. Admiralty ships are accustomed to go (g); but for many years, and until the recent statutes enlarging the jurisdiction of the Admiralty Court (h), the Court was liable to be restrained by prohibition from exercising its jurisdiction in cases of collision occurring in this country within the body of a county (i). Where not prohibited the Admiralty Court appears to have exercised the jurisdiction even where the collision was in the body of a county, at least where the 1 Jurisdiction at common collision is abroad. ship sued was foreign, and the plaintiff would otherwise be without a remedy (j). At the present day there is no doubt that the Admiralty Division has jurisdiction, and will exercise it, whether the collision occurs within the ebb and flow of the tide or not, and whether in British or foreign waters or on the high seas (). The liability of a foreign ship that has injured property of a British subject in any part of the world to be detained until satisfaction is made to the sufferer, is referred to below (7). In a recent case (m) it was held that a County Court had Admiralty jurisdiction in respect of a collision which occurred in a dock connected with a tidal river (the Thames) by a lock. And it seems that the Admiralty Division of the High Court also has jurisdiction in such a case (n). Dr. Lushington exercised the jurisdiction in the case of a collision in foreign inland waters-the Great North of Holland Canal (0). The common law courts have jurisdiction, whether the law when the ships are British or foreign, and whether the collision occurs in foreign waters, or elsewhere. "The right of all persons, whether British subjects or aliens, to sue in the English courts for damages in respect of torts committed in foreign countries, has long since been established; and, as is observed in the note to Mostyn v. Fabrigas (p), there seems to be no reason why aliens should not sue in England for personal injuries done to them by other aliens abroad, when such injuries are actionable both by the law of England, and also by that of the country where they are (j) Fairless v. Thorsen, The Good Intent and The Prince Christian, Burrell's Reports, p. 130. As to Admiralty jurisdiction generally, see De Lovio v. Boit, 2 Gall. 398; The Volant, 1 Not. of Cas. 503, 509. (k) The Diana, Lush. 539, collision in the Great North of Holland Canal; The Courier, Lush. 541; The Mali Ivo, L. R. 2 A. & E. 356; as to colonial waters, see The Peerless, Lush. 30; as to a collision in a London dock, see Reg. v. Judge of City of London Court, 10 Q. B. D. 609. (1) Infra, p. 211. (m) Reg. v. Judge of City of London Court, 8 Q. B. D. 609. (n) Under 24 Vict. c. 10, s. 7. committed; and the impression which had prevailed to the contrary seems erroneous" (q). owners Neither in the Admiralty (r), nor in the Queen's Liability of Bench (s) Division, can a personal action for damages resident in respect of a collision occurring below low-water mark abroad. of the coasts of the United Kingdom be brought against a person not domiciled or ordinarily resident within the jurisdiction (t), unless the writ of summons can be served within the jurisdiction. In such a case service of the writ out of the jurisdiction will not be ordered. A writ addressed to a person resident abroad, and intended to be served upon his coming within the jurisdiction, will not be set aside merely because it describes him as having an English address (u). But a foreign ship, that has injured a British ship or Detention of property of a British subject in any part of the world, may that has foreign ship be detained, if found within three miles of the coasts of injured property of a the United Kingdom, so as to compel her owners to abide British the event of any action in the courts of this country for subject. damage caused by her (a). And it seems that in such a case she is liable in an action in rem (y). But the ship cannot under this Act be detained in respect of personal injury (≈); and it has been doubted whether she could be seized whilst passing the coasts of this country on a foreign voyage (a). The question whether an action can be maintained in Action in this any court in this country for a wrongful act to a pier or damage to (9) Per Selwyn, L.J., The Halley, L. R. 2 P. C. 193, 202, 203, and see per Brett, M.R., 10 Q. B. D. 537. (r) In re Smith, 1 P. D. 300; The Vivar, 2 P. D. 29; The Helenslea, 7 P. D. 57. (8) Harris v. Owners of the Franconia, 2 C. P. D. 173. (t) See Ord. XI. r. 1, sub-s. (c), Rules of Sup. Ct. 1883. (u) The Helenslea, ubi supra. (x) 17 & 18 Vict. c. 104, s. 527. The Christiana, 2 Hag. 183, is a decision under the similar Act, 1 & 2 Geo. 4, c. 75. In America any property of the owners of the ship sued which is found within the jurisdiction may be scized: 2 Parsons on Ship. (ed. 1869), 390. (y) The Bilbao, Lush. 149. (2) Harris v. Owners of The Franconia, 2 C. P. D. 173. (a) See per Cockburn, C.J., Reg. v. Keyn, 2 Ex. D. 63, 218. country for pier abroad. Law of negligence and of liability for negligence applicable to foreign ships. breakwater forming part of the soil of a foreign country has not been decided. It arose in The M. Moxham, but, by consent of the parties, no objection to the jurisdiction was taken. James and Mellish, L.JJ., appear to have thought that there was a grave question as to the jurisdiction (b). Before the enactment of the existing International Regulations for Preventing Collisions at Sea, the question of negligence in all cases of collision was tried by the general maritime law in other words, by those rules of seamanship, which, it was assumed, were common to seamen of all nations (c). Thus the rule that a vessel on the port tack should bear up for another on the starboard tack, was applied to all ships, whether British or foreign. And at the present day, so far as the Regulations do not extend, or where they are not applicable, the test of negligence is the same; namely, the general practice of seamen, or, as it is sometimes called, the general maritime law. Liability for The law applicable in this country to cases of collision negligence by on the high seas, where one or both ships are foreign, is general maritime law. the maritime law as administered in England, and not the law of the flags (d). By that law the shipowner is liable for the negligence of the master and crew of his ship (e). And it appears that the liability is the same whether the action is in a court having Admiralty jurisdiction or not (ƒ). The rights and duties of persons navigating vessels, whether in port or on the high seas, are the same. It is their duty so to exercise their right as to do no damage to the property of others. In a case (g) where it (b) See Foote's Priv. Internat. Law, 290 seq. (c) See The Dumfries, Swab. 63, 125. (d) The Johann Friederich, 1 W. Rob. 35; The Dundee, Hag. Ad. 120; The Leon, 6 P. D. 148; The Milan, Lush. 388; Foote's Priv. Internat. Law, pp. 308-403; and see per Lindley, L.J., Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521, 545; and supra, pp. 3, 70. (e) Per Brett, M.R., 10 Q. B. D. 537; Coke's Inst. 4th Pt. fo. 146. (f) Ibid. (g) Per Willes, J., Submarine Telegraph Co. v. Dickson, 15 C. B. N. S. 759, 779. |