COUNSEL: Brett, Q.C., and Cohen, in support of the motion.

Manisty, Q.C., and Clarkson, for the plaintiffs.

 

SOLICITORS: Proctors for plaintiffs: Clarkson, Son, & Cooper.

Attorneys for defendants: Field & Co.

 

JUDGE: Sir Robert Phillimore

 

DATE: 1867 Nov. 26.

 

 

Collision between a British and a Foreign Vessel in Foreign Waters- Compulsory Pilotage – Pleading.

 

The plaintiffs, owners of a foreign vessel, claimed damages for a collision between their vessel and an English ship in Belgian waters. The defendants, the owners of the English ship, pleaded that, by the Belgian laws, pilotage was compulsory in the place where the collision occurred:–

 

Held, that the plaintiff were entitled to plead in reply, that, by the same laws, the owner of the wrong-doing vessel, although compelled to take a pilot on board, continued liable for the damages.

 

The expediency of the law of compulsory pilotage, so far as it exempts the owner of the wrong-doing vessel from all liability, considered and questioned.

 

THIS case came before the Court on a motion by the defendants to strike out the 3rd article of the plaintiffs’ reply.

 

The petition of the plaintiffs set forth that the Norwegian barque Napoleon, of the burthen of 740 tons, while riding at anchor in Flushing Roads in the month of January last, was run into by the British steam-ship Halley, and thereby suffered considerable damage.

 

The defendants, the owners of the Halley, pleaded, in the 11th article of their answer, “that by the Belgian and Dutch laws which prevail in and over the river Scheldt, and to which the said river is subject, from the place where the river pilot came on board the Halley, and thence up to and beyond the place of the collision, it was compulsory on the steamer to take on board and to be navigated under the directions and in charge of a pilot, duly appointed or licensed according to the said laws, and it was by virtue of such laws that the Halley was compelled to take on board and to be given in charge, and, until the time of the collision as aforesaid, to remain in charge of, and did take on board, and was given in charge, and up to the time of the said collision remained in charge of the said river pilot, who was duly appointed or licensed according to the said laws, and whom the defendants or their agents did not select, and had no power of selecting.”

 

The 3rd article of the reply was as follows:- “By the Belgian or Dutch laws in force at the time and place of the said collision, the owners of a ship which has done damage to another [*4] ship by collision are liable to pay and make good to the owners of such lastly mentioned ship all losses occasioned to them by reason of such collision, notwithstanding that the ship which has done such damage was, at the time of the doing thereof, being navigated under the direction and in charge of a pilot duly appointed or licensed according to the said laws, and notwithstanding that such damage was solely occasioned by the negligence, default, or want of skill of such pilot, without any contributory negligence on the part of the master or crew of such lastly mentioned ship, and notwithstanding that it was, at the time and place of the collision, by the said laws compulsory on such lastly mentioned ship to be navigated under the direction and in charge of such pilot; and the defendants, the owners of the Halley, are, by virtue of the said laws, liable to pay and make good to the plaintiffs all losses occasioned to them by the said collision, even if the statement contained in the 11th article of the answer be true.”

 

Nov. 5. Brett, Q.C., and Cohen, in support of the motion. The English law, which ought alone to govern this case, is clear. First, selection is a necessary condition to constitute the relation of master and servant; a person cannot be answerable for a tort by another unless he has employed him: Reedie v. London and North Western Railway Company (1); but a compulsory pilot, who has a right to take command of the ship, is not the servant of the shipowner: he cannot control the pilot in the mode of performing the work: in such cases, therefore, he is not liable. An English court will take notice of foreign law only in cases of contract, and will interpret the contract according to the lex loci, in order to effectuate the intention of the parties.

 

[THE COURT referred to the Milford. (2)]

 

But in cases of tort, the remedy must be that of the Forum: The Maria (3); The Vernon(4); The Annapolis.(5) There is no authority to shew that there is a remedy here for a tort abroad which is not a tort here: Savigny, System des R. R., vol. 8, s. 374.

 

(1) 4 Ex. at p. 255.

 

(2) Swab. 362.

 

(3) 1 Wm. Rob. 95.

 

(4) 1 Wm. Rob. 316.

 

(5) Lush. 295. [*5]

 

The Belgian law was not violated in Belgium by the defendants: the only violation was their refusal to pay the damages; and that took place here. This case must, therefore, be governed by the general maritime law of this country: The Hamburg (1); the plaintiffs’ remedy can only be in accordance with the lex fori, and the 3rd article of the reply ought to be struck out.

 

[THE COURT. You invoke the Belgian law to shew that pilotage was compulsory, but you say that the other side may not invoke it to carry the case further.]

 

Manisty, Q.C., and Clarkson, for the plaintiffs. The same law which directs the compulsory employment of a pilot, also says that the owner shall remain liable for the damages: we must take the whole law. The lex loci governs the right; the lex fori the procedure; Cammell v. Sewell (2); Mostyn v. Fabrigas.(3) The English law applies only to torts committed in England; cases on the high seas must be governed by maritime law. In this case the shipowner took the pilot on certain terms, one of which was to continue liable for the acts of the pilot: if this action had been brought in Belgium, no question would have arisen. It is submitted that this Court ought to administer the same remedy as in the country where the wrong was done.

 

Brett, Q.C., in reply, referred to The Amalia (4), as an authority for applying the lex fori to this case.

 

It is fully commented on in the judgment.

 

Cur. adv. vult.

 

 

Nov. 26.SIR ROBERT PHILLIMORE. In this case the owner of a Norwegian vessel has brought an action against the owner of an English vessel for damage done to the Norwegian ship in the territory of Belgium.

 

One of the functions, and not the least important, of the High Court of Admiralty is to administer international justice in maritime suits between foreigners who resort to its jurisdiction, or, as in the present instance, between the foreigner and the British subject. The prize jurisdiction of this Court administers the jus inter gentes, or public international law, and what is called the

 

(1) Brow. & Lush. 253.

 

(2) 5 H. & N. 728.

 

(3) 1 Sm. L. C. 6th ed. 623.

 

(4) Brow. & Lush, 151. [*6]

 

instance jurisdiction administers the jus gentium, or private international law. In order to attain this end, the rules of pleading and the general mode of investigating and trying the merits of such cases when they come before it, are simple, free from technicality, and calculated to do substantial justice. In this Court as Sir J. Nicholl observes in the Girolamo (1), “the law maritime according to the law of nations is to be administered;” and again he says (2) it “is governed by the rules” (he is not speaking of the prize Court) “of international law.” To the same effect in the Zollverein (3), Dr. Lushington, in the case of a collision between a British and foreign vessel, says: “The case must be decided by the law maritime, by those rules of navigation which usually prevail among nations ‘navigating the seas where the collision takes place.” And in the Golubchick (4), he says: “Upon general principle I apprehend, that this Court, administering, as it does, a part of the maritime law of the world, would have a right to interpose in cases of the present description.” If, therefore, this collision had taken place upon the high seas it must, upon general principles, have been adjudicated according to the “lex maris.”

 

[His lordship then stated the pleadings as above set out, and continued]:-

 

The claim of the petitioner in this case is founded, according to the Norman language of our common law, upon a tort committed by the defendant; according to the language of jurisprudence, familiar to this Court, upon an obligatio ex maleficio, or as it is more generally, though perhaps less accurately, termed, an obligatio ex delicto, incurred by the defendant. “Res sic habet,” Donellus says, “ut quemadmodum non omne delictum est maleficium, ita non ex quovis delicto nascatur obligatio sed solum ex maleficio.” (Donellus lib. xv. c. 24, s. 3.) In the case before me this tort was committed, or this obligatio was incurred, in the territory of a foreign state. I think it expedient therefore, to dwell for a moment on the peculiar character of this obligatio, with the reasoning upon which my judgment is in some measure connected.

 

According to the Roman law, which on this subject has been

 

(1) 3 Hagg. Adm. at p. 177.

 

(2) 3 Hagg. Adm. at p. 189.

 

(3) Swab. at p. 99.

 

(4) 1 Wm. Rob. at p. 147. [*7]

 

generally adopted by continental Europe, the facts which give rise to a legal obligation are said to be four – contractus, quasi contractus, maleficium, quasi maleficium. The two former create an obligation with the consent of the obliged person (obligatus); the two latter without his consent. It is with the third alone with which we are at present concerned; namely, obligatio ex maleficio, or delicto, for it is not necessary to consider the distinction between this and the obligatio ex quasi delicto.

 

Delictum (Donellus says, with his usual accuracy and perspicuity), “id est factum id, quo nocetur alteri, jure ita coercetur, ut sarciat alteri quod abstulit.” (Donellus, lib. xii. c. 5, s. 12) “Ex tali culpä” (that is maleficio) Grotius says, “obligatio naturaliter oritur, si damnum datum est, nempe ut id resarciatur.” (De Jure Belli et Pacis, lib. ii. c. xvii. sec. 1) This is in truth the language of natural justice. The form of remedy under the Roman law was supplied by the Lex Aquilia. The passage in the Digest upon this very subject of collision at sea contains (as so many other passages in that repertory of jurisprudence do) the written equity which the reason of the thing requires. “Si navis tua impacta in meam scapham, damnum mihi dedit, qu3Ú4situm est, qu3Ú4 actio mihi competerit? Et ait Proculus, si in potestate nautarum fuit, ne id acciderit, et culpä eorum factum sit, lege Aquilia cum nautis agendum: quia parvi refert, navem immittendo, aut servaculum ad navem ducendo, an tuä manu damnum dederis; quia omnibus his modis per te damno adficior: sed si fune rupto, aut, cum a nullo regeretur navis incurrisset, cum domino agendum non esse,” (Dig. Lib. ix. Tit. ii. 29, 2). According to the principles of natural justice, the wrong-doer to this Norwegian vessel is bound to replace her owner in the position in which he was before the wrong was done; the owner is entitled to what civilians call a restitutio in integrum.

 

I gladly avail myself of Dr. Lushington’s language in this matter in a case in which he distinguishes (speaking of the duty of the Registrar and merchants, as referees of the High Court of Admiralty) between cases of collision and cases of insurance. “One,” he says, (the Gazelle) (1), “of the principal and most important objections to the report under consideration is this, that the Registrar and merchants, in fixing the amount to be paid for repairs, and the

 

(1) 2 Wm. Rob. at p. 280. [*8]

 

supply of new articles in lieu of those which have been damaged or destroyed, have deducted one-third from the full amount which such repairs and new articles would cost. This deduction, it is said, has been made in consideration of new materials being substituted for old, and is justified upon the principle of a rule which is alleged to be invariably adopted in cases of insurance. The first question then which I have to consider is the applicability of the rule in question to a case of the present description; and this question, it is obvious, involves a principle of considerable importance, not only as regards the decision in this particular case, but as establishing a rule for assessing the damages in all other similar cases. Now, in my apprehension, a material distinction exists between cases of insurance and cases of damage by collision, and for the following reasons.” And then the learned judge explains the nature of an insurance contract, and he continues: “With regard to cases of collision, it is to be observed that they stand upon a totally different footing. The claim of the suffering party who has sustained the damage arises not ex contractu, but ex delicto of the party by whom the damage has been done; and the measure of the indemnification is not limited by the terms of any contract, but is co-extensive with the amount of the damage. The right against the wrong-doer is for a restitutio in integrum, and this restitution he is bound to make without calling upon the party injured to assist him in any way whatever. If the settlement of the indemnification be attended with any difficulty (and in those cases difficulties must and will frequently occur), the party in fault must bear the inconvenience. He has no right to fix this inconvenience upon the injured party, and if that party derives incidentally a greater benefit than mere indemnification, it arises only from the impossibility of otherwise effecting such indemnification, without exposing him to some loss or burthen which the law will not place upon him.”

 

Again in the case of the Amalia (1), the same learned judge says: “The principle of limited liability” (and in this case it is contended that the liability of the British owner is taken away altogether) “is that full indemnity, the natural rights of justice, shall be abridged for political reasons.” This is a

 

(1) Brow. & Lush. at p. 152. [*9]

 

subject to which I must again advert in another part of my judgment. At present it is enough to say that the dictates of natural justice appear to be in favour of the petition of the Norwegian vessel in this case, which prays this Court to cause the British vessel, the wrong-doer, to make that reparation for wrong done by her which the lex loci commissi delicti, had the suit been brought in a Belgian court, would have enforced.

 

It is, however, contended on behalf of the British vessel that this Court cannot apply this law to this case; that it must, partially at least (the importance of this qualification will be presently seen), disregard the law of the place in which the wrong was done, and apply that of the place in which the action for redress is brought; that, in other words, the lex fori, and not the lex loci commissi delicti, governs this case. If this be so, the foreign owner will obtain, practically speaking, no compensation for the wrong done to his vessel by the British ship, the owner of which will practically escape altogether unscathed. It is not, therefore, too much to say that the arguments and the precedents which are brought forward in favour of such a result must be narrowly examined and carefully scanned. It certainly may be that the hands of the Court are tied by municipal law, and prevented from administering the relief which, upon general grounds, it must desire to administer to the petitioner in this case. I now proceed to examine the reasoning and authorities which have been advanced in support of this proposition.

 

The contention on the part of the British owner is, that the le fori must govern this case, not because that law is made binding on the Court, as in the case of the Amalia (1), by a British statute, but because it is made binding on the Court by an established principle of law, which is to be collected from judicial decisions and the dicta of accredited writers. It is contended, then, that this question belongs to the domain of the lex fori, inasmuch as it is a question relating to the remedy, and not to the right, of the party suing. It becomes important to see what authority, in principle or precedent, there is for this proposition. It is well settled by decisions of the tribunals of this country that all which relates to the form of the remedy, and the mode of enforcing it, all

 

(1) Brow. & Lush. 151. [*10]

 

that relates to the conduct of the suit in court, the rules of evidence, and to procedure, shall be governed by the lex fori. Indeed, it is a well-established rule of international comity, as old, certainly, as the time of Bartolus, that “de his qu3Ú4 pertinent ad litis ordinationem inspicitur locus judicii.” But to the further proposition, namely, that the nature and character of the remedy itself – for instance, the measure of civil damages for a breach of contract, or for the non-fulfilment of any legal obligation – is to be regulated by that law, I cannot assent. I am not aware of any direct authority for it; certainly it cannot, in my opinion, be maintained upon principle; and so far as the analogy of the obligation arising from contract applies to this case of obligatio ex delicto, the judicial precedents which I have been able to find are adverse to this proposition.

 

Mr. Justice Washington, in a judgment delivered in the District Court of Pennsylvania, observes (Peter’s Circuit Court Reports, 230): “The rate of damages to be recovered for a breach of contract, is a part of the right to which the injured party is entitled, and it is totally distinct from the remedy provided for enforcing it. In the former case, the lex loci, where the contract was made or broken, is to prevail; in the latter, the lex loci of the forum, where the remedy is provided.” The same learned judge, in an earlier and very singular case, Courtois v. Carpentier (1), laid down the same principle. It was an action in the Pennsylvanian Court, on a note payable in sugar, and given in Guadaloupe, where a particular custom prevails in relation to the payment of such notes in sugar. Mr. Justice Washington said: “The laws of the country where this contract was made must govern. These notes were payable in Guadaloupe, in sugar, at a valuation. The defendant having sued here, cannot complain, if his situation is not made worse than it would have been in Guadaloupe. But as, according to our forms of proceeding (and as to them the laws of our country must govern), a judgment cannot be rendered for sugar, the value in money must be given, which, in effect, is the precise sum stated in the note.” Mr. Justice Story refers to these and to other American, as well as some English, cases, in the following paragraph (Story’s Conflict of Laws, s. 307): “Analogous to the rule

 

(1) 1 Washington’s Rep. 377. [*11]

 

respecting interest would seem to be the rule of damages in cases of contract, where damages are to be recovered for a breach thereof ex morä, or where the right to damages arises ex delicto, from some wrong or injury done to personal property. Thus, if a ship should be illegally or tortiously converted in the East Indies by a party, the interest there will be allowed by way of damages in a suit against him. So the rate of damages on a dishonoured bill of exchange will be according to the lex loci contractus of the particular party. So, if a bill of exchange be made in one state and endorsed in another state, and again endorsed by a second endorser in a third state, the rate of damages upon the dishonour of the bill will be against each party according to the law of the place where his own contract had its origin, either by making or by endorsing the bill. So, if a note made in a foreign country is for the payment of a certain sum in sugar, and by the custom of that place the like notes are payable in sugar at a valuation, the law of the place is to govern in assessing the damages for a breach thereof.”

 

In the case of the Zollverein (1) Dr. Lushington observed: “The principle which governs all these questions of jurisdiction and remedies is admirably stated by Mr. Justice Story (Conflict of Laws, s. 558), ‘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” (it is important to observe these words) “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.’” And in another part of his judgment (1) he says: “Generally, when a collision takes place between a British and foreign vessel on the high seas, what law shall a Court of Admiralty follow? As regards the foreign ship, for her owner cannot be supposed to know or to be bound by the municipal law of the country, the case must be decided by the law maritime, by those rules of navigation which usually prevail among nations navigating the seas where the collision takes place; if the foreigner comes before the tribunals of this country, the remedy and form of proceeding must be according to the lex fori.” It is to be observed

 

(1) Swab. at p. 98. [*12]

 

here that the learned judge is reported as having used the expressions “the remedy and form of proceeding must be according to the lex fori,” but I think that if these words be correctly reported, there must be an unintentional error in the language of the learned judge, who must have meant to say “the form of remedy and of proceeding,” an alteration which brings these words and the judgment in harmony with the previous citation from Story, on which, indeed, it was mainly founded.

 

I must not, however, pass by two judgments of my immediate predecessor in this chair, to which I drew the attention of counsel, because they may be fairly cited by the defendants as favourable to the position for which they contend. They are, in fact, the converse of the present case. In them the judge decided that the lex fori, where more favourable to the foreign suitor than the lex loci contractus, should be administered. In the case of the Milford (1) the question as to the application of s. 191 of the Merchant Shipping Act, 1854, to the suit of a foreign master against the freight for wages arose, and the Court observed as follows (2): “There are no negative words which tend to shew that the Court should not apply s. 191 to foreign masters and seamen. As there are no such words, is it consistent with justice that the Court should hold its hand in all these matters, and say that as to foreign masters it will impose a restriction not found in the statute? I think I am bound to apply the remedy given by the statute.” In the case of the Jonathan Goodhue (3), Dr. Lushington remarked: “When this case was first brought before the Court, it was said that the American law would exclude the master from the benefit of the statute, – that it was a legal incident of the contract that the master should have no lien on either ship or freight for wages or advances. But pending that question, the Court decided in the case of the Milford (1), that the remedy must follow the lex fori, and that a foreign master was entitled to the same remedy against ship and freight as a British master. I adhere to that judgment, though I repeat what I then said, that it was a case of great doubt and difficulty.”

 

I must say that the reasoning of the learned judge which led to the decisions in these cases was never satisfactory to my mind,

 

(1) Swab. 362.

 

(2) Swab. at p. 367.

 

(3) Swab, at p. 526. [*13]

 

and I am glad to learn that in a more recent case mentioned to me by Mr. Clarkson, the learned judge expressed himself willing to reconsider the principle of these decisions. It is to be observed also that they rested in great measure upon the construction of a British statute, and in the present case we have no statute to consider.

 

With respect to the application of the “lex fori” to this case, an observation of some importance arises out of the special character of the law itself. The lex fori in this instance is founded, as Lord Stowell observed in the Carl Johan (1), upon considerations of domestic policy. The English legislature has thought it expedient that only certain persons under certain restrictions shall be allowed to act as pilots in certain British waters, and that it shall be compulsory upon all masters of ships to place the navigation of their vessel while passing through these waters under the control of one of these licensed pilots. And the common law of England has ruled that in such cases the natural responsibility of the owner of the vessel for injuries done to the property or persons of others by the unskilful navigation of that vessel shall cease and be transferred to the pilot. This law holds that the responsibility of the owner for the acts of his servant is founded upon the presumption that the owner chooses his servant, and gives him orders which he is bound to obey, and that the acts of the servant, so far as the interests of third parties are concerned, must always be considered as the acts of the owner. No such presumptions, it is said, exist in the case of compulsory pilotage, in which the state forces its own servant upon the owner, and indeed to some extent reverses the usual order of things on board ship by rendering it incumbent on the master to obey the orders of the pilot. But the considerations of domestic policy which have created this peculiar law are not founded on principles of universal law or natural justice. They are considerations of British policy, which apply to British waters and territory, but not to the Flushing Roads, in which this collision took place. In the earlier part of this judgment I said that natural justice appeared to favour the admission of the plaintiffs’ reply in this case. I must here observe that it has not been argued before me that the Belgian law is contrary to

 

(1) 1 Hagg. Adm. at p. 113. [*14]

 

natural justice, and therefore one which falls under a well-known category of exception to the general rule of international private law, according to which one state accepts in cases of contract the law of another state. It has not been so argued, and in my opinion such an argument could not be successfully maintained. To say to the innocent owner of a ship which the unskilful navigation has damaged, perhaps destroyed, “You cannot recover any damages from me, because I had a pilot on board, and I obeyed his orders; you may bring your action against the pilot, from whom you cannot obtain any substantial redress;”– to say this is surely not to speak the language of natural justice. Should the innocent sufferer reply, “That, if the state chooses to compel you to employ an officer of its own, it is no reason why a third person, no party to this arrangement, should suffer a grievous wrong without redress: it may be a reason why you should have an action against the pilot, or why the state should combine with the measure for your exemption from a natural liability, some measure for the reparation of the innocent sufferer; but this is a matter with which he is not concerned. He has a right to compensation.” This would be a reply entitled to a hearing surely in any court desirous to adjudicate upon the case according to the ordinary principles of justice.

 

Lord Stowell’s mind, furnished as it was with the principles of jurisprudence, naturally rejected the argument for the immunity of the wrong-doing vessel. In the case of the Neptune the Second (1), he said: “It is acknowledged in this case that the damage was done by the ship proceeded against; but it has been set up, in the way of excuse, that she was at the time under the care of a regular pilot, and was acting in obedience to his directions; and it has been contended in the argument that the pilot alone is answerable for any damage that may have been sustained in consequence of the mismanagement of the vessel. If the position could be maintained, that the mere fact of having a pilot on board, and acting in obedience to his directions, would discharge the owners from responsibility, I am of opinion that they would stand excused in the present case; for I think it is sufficiently established in proof that the master acted throughout in conformity

 

(1) 1 Dodson, 467. [*15]

 

to the directions of the pilot. But this, I conceive” (says this great master of jurisprudence), “is not the true rule of law. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under the necessity of looking to the pilot, from whom redress is not always to be had, for compensation. The owners are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be maintained that the circumstances of having a pilot on board, and acting in conformity to his direction, can operate as a discharge of the responsibility of the owners.”

 

I will frankly say that it appears to me difficult to reconcile the claims of natural justice with the law which exempts the owner, who has a licensed pilot on board, from all liability for the injuries done, by the bad navigation of his ship, to the property of an innocent owner. Obligatio is (according to the admirable definition in the Institutes) “vinculum juris quo necessitate astringimur alicujus rei solvend3Ú4;” it is “lien de droit,” as the French say. No one acquainted with the working of this law, which exempts the wrong-doing vessel from liability in this Court, can be ignorant that it is fruitful in injustice. On the one hand, the master is tempted to abstain from all control over his vessel, lest he should afford grounds for the argument that by interference with the pilot he has deprived himself of the legal immunity which he would otherwise enjoy. On the other hand, it is obvious that great inducements may be offered to the pilot to shield the incapacity or mismanagement of the master and his officers by taking all the blame upon himself. It is true that by so doing he may subject himself to censures and punishment from the Trinity House. Certainly, in cases where the evidence clearly established very gross negligence or want of skill on his part, such would be the result; but the greater number of cases are not of this extreme description. It is impossible to doubt that an owner who, as in a recent case before me, would, but for the fact of having a licensed pilot on board, have been compelled to pay perhaps 25,000l. to the ship which he had sunk, lies under a very strong temptation to take whatever measures may be requisite for obtaining the two necessary statements of the pilot, namely: first, that he alone had [*16] the management of the vessel; and secondly, that his orders were obeyed; the two stereotyped questions necessarily and invariably, put to the pilot by those who conduct the defence of the wrong-doing vessel.

 

Again, I cannot help thinking that the doctrine, so clearly explained by Lord Cranworth in Reedie v. London and North Western Railway (1), of the owner being responsible only for the acts of his own servant, has been somewhat strained in its application to the case of the licensed pilot. I do not quite understand why, because the state insists, on the one hand, upon all persons who exercise the office of pilot within certain districts, being duly educated for the purpose and having a certificate of their fitness, and insists, on the other hand, that the master shall within these districts take one of these persons on board to superintend the steering of his vessel, the usual relation of owner and servant is to be entirely at an end; and still less do I see why the sufferer is to be deprived of all practical redress for injuries inflicted upon him by the ship which such a pilot navigates. If compulsory pilotage be at all expedient, a question open to very considerable doubt, it seems to me more just that the master of the wrong-doing ship should be left to his action against the pilot who has badly navigated her, than that the owner of the injured ship should be placed in that predicament. I incline to the opinion that the Belgian law, as it appears in these pleadings, is more consonant with natural justice than our own on this subject. Be this, however, as it may, it has not, I repeat, been argued that the Belgian law is inadmissible here, because it is at variance with natural justice, and if such an argument had been advanced, I should have expressed my dissent from it.

 

Having regard, then, to the fact that the lex fori is founded upon special considerations of public policy applicable only to British territory, and that the admission of the foreign law, the lex loci delicti commissi, to govern this case is not prevented by reason of its repugnance to natural justice or to public policy, – if the question before me were as to the law which ought to govern the fulfilment of the obligation arising out of an ordinary contract made in Belgian territories, it could not, I think,

 

(1) 4 Ex. 244. [*17]

 

be successfully contended that I ought to apply the English law to such case.

 

To such a contract I might apply the principle of Lord Stowell’s judgment in Dalrymple v. Dalrymple (1), and adopting, with a slight alteration, his very words, say, this contract being established in an English Court must be adjudicated according to the principle of English law. But the only principle applicable to such a case by the law of England is, that the character of this obligation (Lord Stowell says the validity of Miss Gordon’s marriage rights) must be tried according to the law of the country in which it had its origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Belgium.

 

A question, however, arises as to whether because in this case the obligation to pay damages arises, not, as in a case of contract, out of the free will of the obligor, but out of the order of the law consequent upon the wrongful act of the obligor, the application of the principle ought to be different. Does it affect the principle upon which justice ought to be administered, that the obligation arises out of a delictum, and not out of a contractus? The authority of Savigny, which it was truly said would have great weight with me, is cited in favour of the application of the lex fori in such a case: (Savigny, System des R. R. viii. pp. 208, 278). The opinion of this most learned and admirable writer is that the law which prevails in the place in which a contract was intended to be fulfilled ought to be administered by the forum before which the fulfilment is sought to be enforced. He places the exceptions to this rule under two categories; it is only with the first that we are now concerned. Under this category of exceptions he ranges all cases in which the lex loci or the lex loci solutionis comes into conflict with what he calls a positive stringent law of the forum. Having laid down this principle, he proceeds to place the obligatio ex delicto under it. The passages in which he does so are perhaps the least satisfactory in his work, and this particular branch of his subject is but cursorily treated. I think, however, that under this category of a positive stringent law, he did not intend to include such a law as the English law with respect to pilots and the

 

(1) 2 Hagg. Consist. 54, 58, 59. [*18]

 

irresponsibility of masters. He is not to be understood as saying that a lex fori which is founded exclusively on local considerations should be applied to the transactions of a foreigner happening in a place to which these local considerations do not apply. But if he is to be so understood, if his proposition be unqualified and universal, it is opposed to the opinion of a great, I believe the greater, number of German jurists. Dr. Bar, the assessor to the Royal Court of Hanover, a jurist of eminence, expressing his dissent from the opinion of Savigny, lays down the contrary doctrine, and refers in a note to the opinion of many of his brother jurists, who are of the same opinion. (Bar, Das Internationale Privat und Strafrecht, Hanover, 1862, pp. 66, 317, 437, 477.) To these may be added John Voet, who says: “Ita quoque delinquens videtur tacit per delictum, velut contractum involuntarium sese obligässe ad talem p3Ú4en3Ú4 modum qualis pr3Ú4stitutus est per legem loci in quo delictum perpetravit.” (Lib. 48, t. 19, xi.)

 

It is well remarked by Savigny that in applying the principles with respect to the enforcement of the obligations which arise ex contractu to the obligations which arise ex delicto some difficulty is caused by the peculiar character of the latter obligation, inasmuch as the enforcement of it borders very closely upon the administration of criminal law. Now it is a maxim of private international law, not indeed universally recognized, but I think firmly incorporated into the jurisprudence of this country, that the Court of one state cannot be required to administer the criminal law of another. It is with the view of getting rid of any embarrassments created by this difficulty between the civil obligation and the punishment of the criminal offence, that eminent jurists have generally adopted the following distinction, which appears to me just and sound. The obligatio ex delicto may be followed by two distinct consequences – to make compensation in civil damages for the injury inflicted, and the liability to undergo a punishment, such as a penal fine or imprisonment, whether at the instance of the person injured, or by the intervention of a public officer of the state. “Eodem delicto et civilis persecutio ad p3Ú4enam privatam et judicium publicum esse possit,” J. Voet (L. 47, t. 1. ii.) says; and Donellus distinguishes between the civil action “de privato damno et pecuniâ quam inde debitam actor [*19 prosequatur,” and “quatenus de his agitur criminaliter ad pæenam et vindictam criminis. (L. xvii. c. 16. 1, Comment. de jure civili). To the same effect is the passage in the Institutes. (L. 4, t. 4.) It is with the former consequence alone of the delictum that the forum of a foreign state can be properly concerned.

 

I must now advert to the case of the Amalia (1) decided in this Court, and afterwards adjudicated upon by the Privy Council, which it is said renders it incumbent upon me to apply the lex fori to the present case. The Amalia was a cause in which the owners of a British steamship, the Amalia, petitioned this Court for the purpose of obtaining a declaration of the limitation of their liability under sect. 54 of 25 & 26 Vict. c. 63, in respect of a collision which had taken place between that vessel and a Belgian steam-vessel, the Marie de Brabant, in consequence of which the Marie de Brabant with her cargo was sunk and lost, and several of the crew drowned. The collision in question happened on the 15th of May, 1863, in the Mediterranean Sea. When this case was before this Court, Dr. Lushington observed (2): “The principle of limited liability is, that full indemnity, the natural rights of justice, shall be abridged for political reasons,” And further on (3) he observes: “I have always recognized the full force of this objection, that the British Parliament has no proper authority to legislate for foreigners out of its jurisdiction.... Now, fully recognizing the force of this primä facie objection, I do not think it is removed by the ingenious suggestion that limited liability is a part of the lex fori.” And here I may ask if the limitation of liability be not part of the lex fori, why should the exemption from all liability belong to that category? And Dr. Lushington then decided that the construction of the 54th section of the Merchant Shipping Act of 1862 (25 & 26 Vict. c. 63), which contained the words, “the owners of any ship, whether British or foreign, shall not,” &c., related equally to British and foreign vessels, and that to the latter, in a British Court, as well as the former must be applied the doctrine of limited liability. The Judicial Committee of the Privy Council upheld, not without doubt, apparently, this decision. Lord Chelmsford, who delivered the judgment of their Lordships,

 

(1) Brow. & Lush. 151.

 

(2) Brow. & Lush. at p. 152.

 

(3) Brow. & Lush. at p. 153. [*20]

 

observed (1): “The appellants say that the moment a collision occurs, there is a lien upon the vessel which is in fault, and supposing the vessel injured to be a foreign one, that the foreigner immediately acquires this lien to the extent of his damage, and cannot be deprived of it by the municipal law of this country. But suppose the foreigner, instead of proceeding in rem against the vessel, chooses to bring an action for damages in a court of law against the owners of the vessel occasioning the injury, the argument arising out of the acquired lien would be at once swept away, and the rights and liabilities of the parties be determined by the law which the Court would be bound to administer. And it may be asked what breach of international law or interference with the natural rights of foreigners is produced by the legislature saying that all suitors having recourse to our courts to obtain damages for an injury from a person not himself actually in fault, but being responsible for the acts of his servant, shall recover only to the value of the thing by which the loss or damage was occasioned, estimated in a particular manner? It is to be observed that under this view of the 54th section the foreigner will be entitled to the benefit of the act, as well as the British owner of a ship occasioning damage, and he will, therefore, not be exposed to a more extensive liability than the British subject.”

 

It is not necessary for me to make any remark upon the reasoning by which their lordships arrived at this conclusion. I may be permitted to observe, however, that the limitation of the owner’s liability to the whole value of the vessel which did the damage, stands upon a very different footing with respect to the claims of natural justice, from the total exemption of the owner from all liability whatever for the act of his vessel. However this may be, the judgment in the Amalia does not appear to me to govern this case. The res decisa in the Amalia was that the 54th section of the Merchant Shipping Act must be holden by a British court of justice to apply to a foreigner as well as a British vessel, although the collision had taken place between them upon the high seas. It was a decision upon the words of that statute, and so far it is binding upon this Court. In no other was am I able to reconcile their lordships’ judgment in this case with the principles of their

 

(1) Brow. & Lush. at p. 159. [*21]

 

previous decision in the case of the Bold Buccleugh. (1) Hear what Lord C.J. Jervis, delivering the opinion of lordships (2), says as to the character of the lien which binds the wrong-doing vessel from the moment that the collision has taken place: “Having its origin in this rule of the civil law, a maritime lien is well defined by Lord Tenterden to mean a claim or privilege upon a thing, to be carried into effect by legal process; and Mr. Justice Story (1 Sumner, 78) explains that process to be a proceeding in rem, and adds that wherever a lien or claim is given upon the thing, then the Admiralty enforces it by a proceeding in rem, and indeed is the only court competent to enforce it. A maritime lien is the foundation of the proceeding in rem, a process to make perfect a right inchoate from the moment the lien attaches; and whilst it must be admitted that where such a lien exists, a proceeding in rem may be had, it will be found to be equally true that in all cases where a proceeding in rem is the proper course, there a maritime lien exists, which gives a privilege or claim upon the thing, to be carried into effect by legal process. This claim or privilege travels with the thing, into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached. This simple rule, which in our opinion must govern this case, and which is deduced from the civil law, cannot be better illustrated than by reference to the circumstances of the Aline (3), referred to in the argument, and decided in conformity with this rule, though apparently upon other grounds. In that case there was a bottomry bond before and after the collision, and the Court held that the claim for damage in a proceeding in rem must be preferred to the first bondholder, but was not entitled against the second bondholder to the increased value of the vessel by reason of repairs effected at his cost. The interest of the first bondholder taking effect from the period when his lien attached, he was, so to speak, a part owner in interest at the date of the collision, and the ship in which he and others were interested was liable to its value at that date for the injury done, without reference to his claim. So by the collision the interest of the claimant attached,

 

(1) 7 Moo. P. C. 267, 284.

 

(2) 7 Moo. P. C. at p. 284.

 

(3) 1 W. Rob. 111. [*22]

 

and dating from that event, the ship in which he was interested having been repaired, was put in bottomry by the master, acting for all parties, and he could be bound by that transaction. This rule, which is simple and intelligible, is, in our opinion, applicable to all cases.” The decision in the Amalia therefore does not, in my opinion, govern the case now before me.

 

Now let me mention a judgment delivered in the Supreme Court of the United States of North America, and certainly entitled to the highest respect in this Court. In the case of Smith and others v. Condry (1), to which I was referred by Mr. Clarkson, two ships belonging to subjects of the United States in North America came into collision in the port of Liverpool. The action was brought in the circuit court for the district of Columbia, and came up by writ of error to the Supreme Court. Mr. Chief Justice Taney, in delivering the opinion of the Court, observed (p. 32) as follows: “Upon the evidence above stated, the defendant asked the Court to instruct the jury that under the statutes of Great Britain of the 37 Geo. 3, c. 78, 52 Geo. 3, c. 39, and 6 Geo. 4, c. 125, the defendant was not responsible for any damage occasioned by the default, negligence, or unskilfulness of the pilot. The Court gave this instruction, and that is the subject of the first exception. The collision having taken place in the port of Liverpool, the rights of the parties depend upon the provisions of the British statutes then in force, and if doubts exist as to their true construction, we must of course adopt that which is sanctioned by their own courts.” This decision of the Supreme Court of the United States of North America seems to go the whole length of the way which the Norwegian plaintiff desires me to travel, for it is in fact a decision that the Court before which a plaintiff sues for the enforcement of the damages growing out of an obligatio ex delicto ought to measure those damages by the law which bound the obligor and the obligee at the time when the factum obligans (as civilians speak) took place, or, in other words, when the delictum was committed.

 

Lastly, I must observe upon not the least remarkable feature in the present proceeding, namely, that the defendants are the first to invoke in their own favour the law of Belgium. They plead that

 

(1) 1 Howard, U.S. Rep. 28. [*23]

 

by that law, applicable to this case, the taking of a pilot on board was compulsory, and there their citation from the Belgian law ceases. The plaintiffs, not unnaturally, plead in their turn the other part of the Belgian law, which is to the effect that the compulsory taking on board of a pilot does not release the master from his liability under the general law for all damages occasioned by the unskilful navigation of his vessel. The defendants contend that the plaintiffs have no right to finish the citation, so to speak, which they the defendants have begun, from the Belgian law; that I must only look at that portion of it which they have selected as being in their favour, and which, as such, they are pleased to lay before me; that it is my duty not to apply either the general lex maris, mentioned at the beginning of this judgment, or the whole Belgian law, which combines the obligation to take a pilot with the continuing responsibility of the owner; but to take the former part of that law, which relates to the obligation to take a pilot, and add to it the English law, which exempts the owner from responsibility. This is the tessellated piece of jurisprudence which I am told the law requires to be applied to the case before me. I hope there is no law or legal rule in this country which would compel me to do an act of, what seems to me, such manifest injustice; as at present advised, I know of none.

 

Upon the whole, after an anxious and, I trust, careful consideration of the principles of law applicable to this case, and of the authorities and arguments which have been laid before me, I am of opinion that the plaintiffs are entitled to plead that the law of Belgium, within whose territorial waters their vessel received damage from the vessel of the defendants, renders the owner of the latter vessel, although compelled to take a pilot on board, liable to make reparation for the wrong which she has done. The question is one of grave importance, and submitted in this country for the first time unhappily to my decision. I am glad to remember that, if I have erred, my error will be corrected by the Court of Appeal, and I will readily accord to the defendants, if they desire it, the permission to appeal, which the statute requires, from this decision upon the admissibility of the plaintiffs’ plea.