ship, springing out of the same collision, and which may be made the subject of separate actions,—e. g., the claim of the shipowner for the loss of his ship, and that of the merchant for the loss of his goods on board, that claimant who shall have obtained judgment before the other has commenced his suit is entitled to a priority over the others (a); the law favouring those who are most active in seeking its aid but if a second action has been commenced before a decree has been pronounced in the first, and if, as is customary, it has been arranged that the second action shall abide the result of the first, then the two are to be placed on the same footing; so that, if the proceeds of the ship and freight are insufficient to satisfy both, the amount realized is to be apportioned rateably between the two claimants (b).

The effect of the limitation of liability upon the position of those who have given bail in order to obtain the ship's release from an Admiralty arrest will be considered in the chapter on Procedure.

To what extent the limitation of liability is applicable to foreign ships, will be considered in the following chapter.

(a) Saracen, 2 W. Rob. 453; 6 Moore, P. C. 56.
(b) Clara, Swab. 3.

N

Principle in British waters.

seas.

CHAPTER X.

TO WHAT EXTENT FOREIGN SHIPS COME UNDER

STATUTORY RULES.

WHEREVER the liability of a shipowner in respect of collision damage is affected by the terms of an Act of Parliament, so as to be greater or less than, or in any way different from, that which would have been his liability under the common law of the sea, it becomes a question how far ships which are the property of other than British subjects can be brought within the jurisdiction of such statutory law.

The principle, now established after a series of decisions in the Admiralty Courts, is this. With respect to collisions which take place within British territory, as, in the rivers and harbours of this country, a British Act of Parliament is operative On the high upon foreign as well as British ships: with respect to collisions upon the high seas, the British Legislature has indeed power to bind foreigners, but its Acts are not binding upon them unless the intention that they shall be so is expressly declared in the Act itself. Further, wherever a foreign ship is exempted from a liability, or debarred from a right, in relation to a British ship, on the ground that

the collision has taken place out of the jurisdiction of a British statute, there is a corresponding exemption on a British ship which under similar circumstances comes into collision with a foreigner; on the ground that there would otherwise be no reciprocity, or equality of rights between the two.

It will be convenient first to set forth the decisions which have established these principles, and then, in order to define their practical bearing, to point out to what extent the legislature of this country has expressly declared an intention to bind foreign vessels coming into collision on the high seas and seeking redress in an English Court.

rules.

The first decision which it is necessary to notice As to steering is that of the Dumfries, in 1856. It was there determined that, where a collision had taken place between a British and a foreign vessel, meeting on the high seas, the provisions of the Merchant Shipping Act, with reference to the porting of the helm, --which provisions, as we have seen, were in some respects inconsistent with the common law of the sea, were to be entirely disregarded, and the merits of the collision, as regards the steering, were to be determined solely by reference to ordinary nautical rules (a).

In the case of the Borussia, in the same year, As to lights Dr. Lushington held that a foreign ship, lying at anchor in an English harbour, was not bound to exhibit lights in the manner prescribed by the

(a) Dumfries, Swab. 64. See also Williams v. Gutch, 14 Moore, P. C. C. 202; Elizabeth, 5 Mitch. 336.

Vid pp 3.4.

As to the
right of
recovery,

when both

х

Admiralty regulations issued under the authority of an Act of Parliament (a).

The Merchant Shipping Act of 1854, as has been seen, made an important modification in the comships in fault. mon sea law, which is now repealed; directing that in certain cases, where both ships were in fault, neither should recover. It was determined, in the case of the Zollverein, that this rule was not operative on a British shipowner claiming damages against a foreigner for a collision on the high seas, on the ground that the statute could not bind the foreigner, so as to preclude his recovering his halfdamage, and that there must be mutuality. Dr. Lushington, in the course of an elaborate judgment, said:"The principle which governs all these questions of jurisdiction and remedies is admirably stated in Mr. Justice Story's 'Conflict of Laws,' c. 14. In regard to the rights and merits involved in actions, the law of the place where they originated is to be followed; 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 domicile of the parties, the origin of the right, or the country of the Act.' In endeavouring to put a construction on a statute, it must be borne in mind how far the power of the British Legislature extends, for, unless the words are so clear that a contrary construction can in no way be avoided, I must presume that the

(a) Swab. 95.

legislature did not intend to go beyond this power. The laws of Great Britain affect her own subjects everywhere foreigners only when within her own jurisdiction." The learned Judge then, after giving his reasons for holding that the Merchant Shipping Act was not so framed as expressly to declare an intention to bind foreign ships, and that the question before him related not merely to the form of remedy but to the rights and merits of the dispute, went on to say, "Then comes the question, whether, in a trial of the merits of a collision, a foreigner may urge in his defence that the British vessel, though free by the law maritime, has violated her own municipal law, and so, being plaintiff, cannot recover. Reverse the position: suppose the foreigner plaintiff, and to have done his duty by the law maritime. I am clear that he must recover for the damage done. If so, it is contrary to equity to say that the British shipowner, in eadem conditione, shall not recover against the foreigner. What right can the foreigner have to put forward British statute law, to which he is not amenable so far as the merits are concerned” (a) ?

So, in Cope v. Doherty, Wood, V. C., said—“ The legislature of each separate country, by its acts, unless otherwise expressed, only attempts to regulate those rights which subsist between its own subjects. The rules of the lex fori do not apply to modify those rights. The hypothesis

(a) Zollverein, Swab. 96.