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Office, from the government of India, it appears that John February 17. P. B. Le Patourel joined the pilot service, the Bengal pilot service, in May, 1845, and so continued up to the date of the last return, somewhere about, I think, July, 1859.

(Exhibit to the affidavit.)

"J. PARKER."

ACT No. XXII. OF 1855.

PASSED BY The Legislative Council of India. (Received the assent of the Governor-General on the 13th August, 1855.)

An Act for the Regulation of Ports and Port-dues. "XIIth. In every port subject to this Act, to which the provisions of this section shall be specially extended by any order of the local government, it shall be unlawful to move any vessel of the burthen of 200 tons or upwards without having a pilot, harbour-master, or assistant of the master attendant or harbourmaster on board; or to move a vessel of any burthen less than 200 tons and exceeding 100 tons without having on board a pilot, harbour-master, or assistant of the master attendant or harbour-master, unless authority in writing so to do has been obtained from the conservator or some officer empowered by such conservator to give such authority; and if any vessel shall, except in a case of urgent necessity, be removed contrary to the provisions of this section, the master of such vessel shall be liable to a penalty not exceeding two hundred rupees for every such offence, unless the master of the vessel shall, upon application to the proper officer, be unable to procure a pilot, harbour-master, or assistant of the master attendant or harbour-master to go on board the said vessel."

Deane, Q C., and Twiss, Q.C., for the Peerless. The Indian Act and the order extending the Act to the locus in quo of the collision are admitted on the pleadings. From those enactments there follows an exemption to the owners for the act of a pilot employed by them in obedience to the law.

The Queen's Advocate, Spinks and Hannen for the Jason. 1. Neither the Indian Act nor the order extending the Act are proved. It is not sufficient to produce the foreign statutes; foreign law must be proved by a testis peritus; Earl Nelson v. Lord Bridport (a); Taylor on Evidence (b); and Mr. Parker, who is only a clerk in the marine and transport department in the India House, is not a testis peritus.-[DR. LUSHINGTON: In

(a) 8 Beav. 527.

(b) Pages 1149, 1150 (3rd ed.)

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the Privy Council we look at the Code Napoléon and the Indian Regulations every day.]-That is only because the Court there February 17. is a Court of Appeal.-[DR. LUSHINGTON: Has not the Admiralty Court primary jurisdiction over these waters; and am I not, therefore, bound to take notice of the law?]-It is submitted not, these being colonial waters. The copy of the Indian Act, produced by Mr. Parker, is not enough; he states it to be one of many copies officially forwarded from India to the India House; but it bears no place or printer's name; nothing to mark it as being a correct copy of the original. Even copies of British statutes, to be admissible in evidence, must purport to be printed. by the Queen's printers. The 8 & 9 Vict. c. 113, s. 3, and 14 & 15 Vict. c. 99, s. 7, which provide for the proof of the foreign and colonial Acts, require examined copies or copies authenticated by the foreign or colonial seal. India may not be a colony, but the inference is obvious, that the proof of an Indian Act must be as complete in formalities as the proof of a colonial Act. The proof of the order of the Lieutenant-Governor of Bengal, extending the Act, is still more palpably insufficient. Mr. Parker produces no official or any other copy, and the only evidence of its existence is, that Mr. Parker says he knows it does exist from a letter, which he does not even say that he has seen, or even that he has seen any copy of it; and neither the letter nor any copy of the letter is produced. 2. There is no proof that the locus in quo of the collision was subject to the Act. Even assuming the order extending the Act to be proved, it is not shown to be a valid order. The Act only speaks of ports being made subject to the Act. What right had the Lieutenant-Governor or even the Governor-General to declare the navigable river and channels leading to a port subject to the Act? Nor is there any proof that Cowcolly Roads form part of the navigable river and channels leading to the port of Calcutta ; and certainly they are not part of the port itself, for the Peerless expressly pleads having left the port the day before. 3. Admitting the employment of the pilot to have been compulsory, there is no exemption to the owners. The Act expresses no exemption, and the exemption must be expressly given as it is by the English statute. The plaintiffs no doubt rely on what they call the general principle, that a person is not responsible for the act of another whom he is compelled by law to employ, as suggested in the Protector (a). whether any such principle exists. the Second (b), Lord Stowell held

(a) 1 W. R. 54.

But it may be doubted In the case of the Neptune that the owners of a vessel

(b) 1 Dodson, 467.

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were liable for the act of an authorized pilot; and although the February 17. decision was erroneous, as pronounced in ignorance of the statute of 52 Geo. III. c. 39, which expressly gave exemption, it is direct authority, as was observed in the case of the Eden (a), that there was no exemption for the act of an authorized pilot independent of the statute. The Girolamo (b) is to the same effect. But even if it were otherwise the principle does not apply unless the entire power of selection is taken away, and the obligation of law is to employ the particular person actually employed. Martin v. Temperley (c), in which all the cases are reviewed, expressly decides that where there is a power of selecting from a class, although the class is specified and limited by the law, the responsibility of the employer continues. Here the power of selection remained. The master of the Peerless might have employed any licensed pilot he chose, or any assistant of the harbour-master. 4. There is no adequate proof that the person in charge was a pilot. The mere assertion of the master will not do, and the document relating to the official inquiry was not made evidence by its production to the witness on cross-examination.

February 17. Judgment.

Deane, Q.C., in reply. The law stands admitted on the pleadings; at any rate Mr. Parker is an official person sufficient to prove the law. For certain purposes a professional lawyer may be necessary, as where the law depends on a variety of judicial decisions, but not to prove the passing of a mere decree or ordinance, as here. Of the Act itself the best copy possible has been produced, and the order, it is submitted, though not proved so satisfactorily, is nevertheless sufficiently established, especially as there has been no direct denial of it. The defendant's own pleading shows the collision to have occurred in the river Hooghly, and within the district of licensed pilots for the port of Calcutta. If the pilotage is in fact compulsory, there is exemption, whether expressed or not in the statute. That point must be considered settled after the cases of the Protector (d), and the Maria (e). The doctrine of selection has never been applied to pilots.

DR. LUSHINGTON :-The Trinity Masters have advised the Court that the pilot of the Peerless alone was to blame for this collision with the Jason, and the Court concurs with their advice. The owners of the Peerless, however, must be responsible for

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February 17.

The burden

the damage, unless they can show a legal exemption from such responsibility. It has been contended, for the owners of the Peerless, that by reason of having a pilot on board by compulsion of law, and the collision arising solely from his fault, they are the defendants. relieved from that responsibility. The onus probandi lies upon them to make good this defence.

of proof is on

This collision took place in the river Hooghly. The Peerless was lying in the beginning of May in the port of Calcutta, and in the first article of her allegation it is pleaded that on the 11th May, 1858, she left the port in charge of an officer from the department of the harbour-master. The second article pleads that on that same evening she was brought to anchor, having dropped down the river Hooghly off Cooley Bazaar; that on the 12th of May, Le Patourel, a duly licensed pilot of the port of Calcutta, took charge of her. It is clearly proved that a person of that name, professing to be a pilot, did so take charge of the vessel, and continued in charge until after the collision. The sixth article pleads that by an Act of the Legislative Council at Calcutta, of the date 13th August, 1855, s. 12, it was made unlawful in every port subject to the Act, to which the provisions of the section should be especially extended by order of the local government, to move any vessel above 200 tons without a pilot, and a penalty of 200 rupees was imposed for a violation of the Act. The seventh article pleads that on the 1st of July, 1856, it was ordered by the lieutenant-governor of Bengal, that the port of Calcutta and the navigable river and channels leading to that port should be subject to the Act. The eighth article pleads exemption from responsibility by reason of the Act and Regulations pleaded, and also by the general law. The fourth article of the responsive allegation on behalf of the Jason contradicts and denies the eighth article of the allegation of the Peerless, and alleges that neither by the recited Act and Regulations, nor by the general law are the owners of the Peerless exempted. It is not denied in the pleadings that Le Patourel was a licensed pilot, nor that he was piloting the vessel within pilotage waters. That, however, is the first question I have to determine. The second Questions to question is the proof of the Bengal Act of 1855. The third, be determined. whether it is proved that the provisions of that Act extend to the

locus in quo. If these laws are proved, a fourth question would then arise, whether the owners are exempt by virtue of them, or by any general law.

What founds the jurisdiction of the Court in this case? What The Court has laws is the Court to administer? What rules of evidence is it to jurisdiction

over British

colonial waters

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observe? What notice ought the Court to take of the laws prevailFebruary 17. ing in the place where the collision occurred? These are questions

on which the main questions of the case depend, and they must be decided by reference to maritime law and practice, and to the many distinctions existing between transactions on the sea and on land. The locus in quo, the river Hooghly, is a part of the possessions of the Crown of Great Britain. The jurisdiction of the Court over a British ship, with respect to collision occurring in such a place, is, I apprehend, founded on two considerations; first, upon immemorial usage that the High Court of Admiralty has always exercised jurisdiction wherever British Courts of Vice-Admiralty have been intitled so to do; and secondly, upon the arrest of the ship, the res, within Admiralty jurisdiction. Its powers extend to acts done on the high seas, and to places within British dominion. As to foreign ships provision is made by the 527th section of the Merchant Shipping Act, 1854. My observations of course refer to collisions or matters ejusdem generis. I speak with the more confidence as to the concurrent jurisdiction of this Court with Vice-Admiralty Courts abroad, because before the establishment of the Judicial Committee this Court was the Court of Appeal from the Vice-Admiralty Courts. A practice had crept in, I know not how, of appealing occasionally from the Vice-Admiralty Courts to the Privy Council. The last was in 1819, and I well remember it because I was counsel in the cause and opposed to Sir Samuel Romilly, and the Privy Council then said that all Vice-Admiralty appeals should thenceforth go to the Admiralty Court, as the proper Court of Appeal, that ViceAdmiralty Courts were only instituted because it was inconvenient in instance causes, as was also found in prize causes, to resort to the High Court of Admiralty sitting in England. From that time Vice-Admiralty appeals were always taken to this Court, until the establishment of the Judicial Committee and the passing of the 3 & 4 Will. IV. c.

The municipal law of the colony to be followed, the

strictest proof

thereof not required.

41.

I have, therefore, no doubt of the jurisdiction of the Court, and in exercising that jurisdiction, it is the duty of the Court to carry into effect the local laws of the place where the transaction in question occurred; I should therefore pay regard to the local laws of India or Canada, as I would to those of Liverpool or Newcastle. And to ascertain those laws I do not consider that I am bound to require all the strictness of proof which a Court of common law would require in proving foreign law, and for the following reasons - First, I hold that I have local jurisdiction over the locus in quo, and that is not an immaterial distinction, for at common law the Courts have no local jurisdiction over the