[JUDICIAL COMMITTEE]

AND

THE "HALLEY."

ON APPEAL FROM THE HIGH COURT OF ADMIRALTY.

Shipping - Collision between a British and Foreign Vessel in Foreign Waters - Compulsory Pilotage - Tort committed in Foreign State - Damages - Suit in English Admiralty Court - Conflict of Law - Belgian Law - Lex Fori - Merchant Shipping Act, 1854.

In cases arising upon contracts entered into in a Foreign country, the Courts of England inquire into and act upon the law of Foreign countries where, by express reference, or by necessary implication, the Foreign law is incorporated with the contract, and proof and consideration of the Foreign law becomes necessary to the construction of the contract itself. But in admitting the proof of Foreign law as part of the circumstances attending the execution of the contract, or as one of the facts of the existence of a tort, an English Court applies and enforces its own law so far as it is applicable to the case established, but will not enforce a Foreign Municipal law, and give a remedy in the shape of damages, in respect of an act which by the English law imposes no liability on the person from whom the damage was claimed.

Thus in a cause of collision promoted by the owners of a Norwegian Barque, against a British Steamer, in the High Court of Admiralty in England, for damage done in Belgian waters, alleged to have been occasioned by the negligent and improper navigation of the steam-vessel, the owners of the Steamship pleaded, that the vessel was in charge of a Pilot whom they were compelled by the Belgian law to employ. The owners of the Barque replied, that by the Belgian law it is provided that the owners of a Ship which has done damage to another by collision are liable for the damage notwithstanding the vessel was in charge of a compulsory Pilot, and although the damage was occasioned by his negligence or want of skill. The owners of the Steamer to this plea objected, that even if the article pleaded were true, they would not be liable in the Court of Admiralty in England. The Court of Admiralty admitted the plea of the Belgian law:-

Held, by the Judicial Committee, reversing the decision of the Court of Admiralty, that the claim being founded on a tort committed in the territory

of a Foreign State, the party claiming reparation in a British Court as not entitled to the benefit of the Foreign law against the admitted provisions of the Statute Law of England, and the practice of the High Court of Admiralty in respect of compulsory pilotage, by which no such liability as provided by the Belgian law existed, as it is contrary to principle and authority to hold that an English Court will enforce a Foreign Municipal law, and give a remedy in the shape of damage, in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed.

The case of Smith v. Condry (1) observed upon.

A CAUSE of damage promoted by the Respondents, the owners of the Norwegian Barque Napoleon, against a British Steamship, the Halley, for the recovery of damages by reason of a collision which took place between the Napoleon and the Halley, on the 20th of December, 1866, in Flushing Roads, in Belgian territory.

The Appellants, the owners of the Halley, by the eleventh article of their answer to the Respondents' petition, averred that, by the Belgian law which prevailed at the time and place of the collision, the Halley was compulsorily in charge of a duly appointed Pilot, whom the Appellants did not select and had no power of selecting; and by the twelfth and thirteenth articles they further alleged, that all the Pilot's orders were duly obeyed and complied with, and that if the collision was not the result of inevitable accident, it was exclusively occasioned by the negligence of the Pilot.

The Respondents, in their reply to the Appellants' answer, pleaded, by the third article, as follows:- "By the Belgian or Dutch laws in force at the time and place of the collision, the owners of a Ship which has done damage to another 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

(1) 1 Howard's Rep. (U. S.) 28.

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 statements contained in the eleventh article of the said answer be true."

The Appellants moved the Court to strike out this third article on the ground that, though the article be true, they were not liable in the Court of Admiralty in England, when the Judge (Sir Robert Phillimore), on the 26th of November, 1867, gave judgment in which he held(1), that the Respondents were entitled to plead that the law of Belgium, within whose territorial waters their vessel received damage from the vessel of the Appellants, rendered them, although compelled to take a Pilot on board, liable to make reparation for the wrong she had done, and rejected the Appellants' motion(2).

From this judgment the present appeal was brought.

The Solicitor-General (Sir W. Baliol Brett, Q.C.), and Mr. Cohen,for the Appellants:-

The effect of the judgment of the Court below amounts to this, that in an action of tort, the tort being committed in a Foreign country in which a particular liability exists, an English Court of law will enforce that liability, and administer the Municipal law of a Foreign country in a cause of action which would not lie here. Now, that is a proposition which we maintain is wholly untenable. The law by which liability is determined in an action of tort is the lex fori: The Maria (3); The Annapolis (4); The Vernon (5); The Ida (6); The Agricola (7). No authority can be found to shew that there is a remedy here for a tort abroad which is not a tort here: Savigny, System, des RR., vol. viii. § 374. The remedy must be such as can be administered and enforced in the Court whose aid is invoked, and not the law and procedure of the Foreign country where the trespass has been committed:

(1) Law Rep. 2 Ad. & E. 3.

(2) Ibid. 23.

(3) 1 W. Rob. 95.

(4) Lush. 295.

(5) 1 W. Rob. 316.

(6) Lush. 6.

(7) 2 W. Rob. 10.

Scott v. Lord Seymour (1). An English Court of law will not entertain a cause of action arising in a Foreign country which would not lie here. Suppose that by the law of a Foreign country an insulting gesture, or defamation of an Official personage, is considered an assault, both of which are punished by fine or forfeiture, or again, until lately, by American law, in the Southern States, for harbouring a Slave; could an English Court administer here such remedy as is given by the Foreign law? It is absurd on the face of the proposition. It is true that an English Court will take notice of Foreign law in actions on contracts, the lex loci contractus, or the lex loci solutionis, being held to prevail solely with a view of carrying out the intention of the parties, and of putting a construction on the contract. But no such reason exists for applying the lex loci delicti in an action founded on tort or delict. There is no analogy between the cases. Here the English and not the Belgian law must prevail. In the case of Simpson v. Fogo (2) a British ship mortgaged in England,but remaining in possession of the Mortgagor, was attached in New Orleans by a Creditor of the Mortgagee. The Supreme Court of Louisiana refused to recognise the mortgage as being valid, as the law of Louisiana did not recognise a transfer of property in chattels without delivery of possession, but in a suit brought by the Mortgagee in England, it was held, that the judgment of the Supreme Court was examinable, and, being opposed to the principles of the law of England, could not be regarded.

A Court of Admiralty has no jurisdiction in collision cases except by Statute. It was originally an Instance Court. In cases of collision in inland waters the jurisdiction of the Court of Admiralty is only derived by the Statute, 24 Vict. c. 10, s. 7: The Malvina (3). It does not extend to Foreign waters: The Ida (4). The Respondents import the Belgian law for the damage occasioned by the Pilot, who was not their servant. They contend that by Belgian law the Appellants are liable for the Pilot's acts. The English law must govern the case. By that law a compulsory Pilot, who has a right to take command of the Ship, is not the

(1) 1 H. & C. 219.

(2) 1 H. & M. 195. See also The Liverpool Marine Credit Company v. Hunter, Law Rep. 3 Ch. 479.

(3) 1 Moor's P. C. Cases (N.S.) 357.

(4) Lush. 6.

servant of the Ship-owner; he cannot control him in the performance of his work, and, therefore, is not liable for the acts of a person he is compelled to employ. He is expressly exonerated by Statute, 17 & 18 Vict. c. 104, s. 388: The Bilbao (1); The Maria (2). The same principle is recognised by the Civil Code of New York, § 1280; Story, § 456, note; Smith v. Condry (3). The maxim "qui facit per alium, facit per se," therefore, does not apply, and any damage done by the collision by the Respondent's vessel is damnum sine injuria, the Pilot not being under the control of the Appellants. The wrongdoer was the Pilot, and as selection is a necessary condition to constitute the relation of master and servant, no person is answerable for a tort by another unless he has employed him: Reedie v. The London and North Western Railway Company (4); Brown v. Mallett (5); Laugher v. Pointer (6); Milligan v. Wedge (7); The Mersey Docks Trustees v. Gibbs (8).

The judgment of the Court below proceeds on the assumption that there was a maritime lien at the time of the collision, and that the doctrine enunciated in The Bold Buccleugh (9), that damage creates a lien on the ship causing the collision, applies; but in the case of The Pacific (10) it was held that under the 5th section of the Admiralty Court Act, 1861, material men acquire no maritime lien, only a right to sue the ship. Although there may be a maritime lien, yet the owner is liable to an action for damages, which sweeps away any lien: The Amalia (11). The argument derived from the Civil law regarding the obligatio ex delicti, so strongly urged and insisted on by the learned Judge in the Court below, has, in truth, no bearing in this case. The Court of Admiralty administers the law of Nations, or the Civil law, subject to the Municipal law of England, and has no power to enforce an obligation, which is not only not recognised or allowed by the Municipal law, but is expressly provided against by Statute, 17 & 18 Vict. c. 104, s. 388. The Belgian law sought to be imported by the third plea into the case has not, in fact, been

(1) Lush. 149.

(2) 1 W. Rob. 95.

(3) 1 Howard's Rep. (U. S.) 28.

(4) 4 Exch. 255.

(5) 5 C. B. 599.

(6) 5 B. & C. 553.

(7) 12 A. & E. 737.

(8) Law Rep. 1 H. L. 115.

(9) 7 Moore's P. C. Cases, 267.

(10) 1 Br. & Lush. 243.

(11) 1 Moore's P.C. Cases (N. S.) 484.

violated by the Appellants; all have done is to refuse to pay the damages. Upon all these grounds, we submit that the Respondent's remedy can only be in accordance with the lex fori,and that the case must be decided agreeably to the general maritime law as administered here: The Hamburg (1).

Mr. Manisty, Q.C., and Mr. Clarkson, for the Respondents:-

The real question is, whether the law of England or the law of Belgium governs the case. The learned Judge of the High Court of Admiralty has decided, as we maintain rightly, that the Belgian law is alone applicable. The case, no doubt, is one of tort, or, in the language of the Civil law, "obligatio ex delicto," and we contend must be determined by the law of Belgium, and not by the procedure of the Court here. Where the cause of action arises in a Foreign country, the lex loci governs the right, the lex fori the procedure: Mostyn v. Fabrigas (2); Lammell v. Sewell (3); Huber v. Steiner (4); Castrique v. Imrie (5); Scott v. Lord Seymour (6); Rafael v. Verelst (7). The American Courts adopt the same principle: Smith v. Condry (8), where it was held that if a collision occurs in an English port, the rights of the parties are governed and are to be determined by the provisions of English Statutes then in force. If this action had been brought in Belgium,no question would have arisen, and the Court ought to administer the same remedy as is given in that country. By the Civil law the Respondents have a right to be placed in the same condition they were before the wrong was done them. In other words, they were entitled to what the Civilians call "restitutio in integrum"and to have that reparation which the lex loci commissi delicta would have enforced: Story, Conflict of Laws, c. viii. §. 307, c. 14: The Milford (9). The lex fori in this case would be insufficient, and afford no remedy at all against the wrongdoers. Here the Pilotage is compulsory, but the owners are, in opposition to English law, by Belgian law, liable for the Pilot's acts. It is rightly observed

(1) Br. & Lush. 253; S. C. appeal, 2 Moore's P.C. Cases (N. S.) 289.

(2) Cowp. 161. See 1 Smith's Lead. Cases, 523.

(3) 5 H. & N. 728.

(4) 2 Bing. N. C. 202.

(5) 8 C. B. (N. S.) 405.

(6) 32 L. J. (N. S.) (Exch.) 61.

(7) 2 W. Black. 983.

(8) 1 Howard's Rep. (U. S.) 28.

(9) Swab. 367.

by the learned Judge in the Court below, that in the admission of the Foreign law, the lex loci delicto commissi to govern the case is not to be prevented by reason of its repugnance to justice or public policy. The Amalia (1), relied on by the other side, was a decision on the effect of the 54th section of the Merchant Shipping Act (25 & 26 Vict. c. 63), with respect to limited liability applying equally to British and Foreign vessels; it is not otherwise reconcilable with the previous decision in The Bold Buccleugh upon the doctrine of lien(2). The damage created a lien on the ship, to be given effect to by proceedings in the Court of Admiralty in this country. We contend, therefore, that we have a right to plead, as decided by the Court below, that the law of Belgium, within whose territorial waters the damage complained of took place from the Appellant's vessel, renders them, as owners, liable to make reparation for the wrong she has done. The Appellants knew when they took the Pilot on board they would be liable for his acts.

THE LORD JUSTICE SELWYN:-

July 2. This is an appeal from an Order by the Judge of the High Court of Admiralty, dated the 26th of November, 1867, and admitting the third article of the reply filed by the Plaintiffs in the Court below, who are the present Respondents.

The cause is a cause of damage promoted by the Respondents as owners of a Norwegian Barque called the Napoleon, against a British steam-ship called the Halley, and her owners, for the recovery of damages occasioned to the Respondents by reason of a collision which took place on the 8th of January, 1867, in Flushing Roads, between the Napoleon and the Halley.

In their petition the Respondents state that the collision was caused by the negligent and improper navigation of the Halley.

The Appellants, in their answer to that petition, state that the Halley is a Steamship belonging to the port of Liverpool, and that "by the Belgian or Dutch laws which prevail in and over the river Scheldt, and to which the said river is subject, from the place where the said river Pilot came on board the Halley, and thence up to and beyond the place of the aforesaid collision, it as compulsory on the said Steamer to take on board and be

(1) 1 Moore's P. C. Cases (N. S.) 471.

(2) 7 Moore's P. C. Cases, 267.

navigated under the direction 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 gien in charge, and until the time of the said 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 the said laws, and whom the Defendants or their Agents did not select and had no power of selecting;" and "that the collision was not caused by the negligence, default, want of skill, or improper conduct of any person on board the Halley, except the said river Pilot."

In reply to this answer, the Respondents pleaded the following, being the third article in their reply:- "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 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 statements contained in the eleventh article of the said answer be true."

The Appellants having moved the Court below to reject the third article of the reply, on the ground that, even if the third article were true, the Appellants would not be liable in the Court of Admiralty in England, the learned Judge of that Court has made the Order now under appeal, by which he has refused the motion of the Appellants, and has sustained the third article of the reply.

The claim of the Respondents is stated by the learned Judge to be founded upon a tort committed by the Defendants in the territory of a Foreign State, and we are not called upon to pronounce any opinion as to the rights which the Respondents might have obtained, either against the Appellants as the owners of the Halley, or as against that Ship, if the Respondents had instituted proceedings and obtained a judgment in the Foreign Court. For this cause is a cause for damage instituted by petition in the High Court of Admiralty in England; and it is admitted by the Counsel for the Respondents that the question before us must be decided upon the same principles as would be applicable to an action for damages for the collision in question if commenced in the Court of Queen's Bench or Common Pleas. But it is contended on their part, and has been held by the learned Judge in the Court below, that the Respondents are entitled to plead that the law of Belgium,within whose territorial jurisdiction the collision took place, renders the owners of the Halley, although compelled to take a Pilot on board, liable to make reparation for the injury which she has done.

Their Lordships agree with the learned Judge in his statement of the Common law of England, with respect to the liability of the owner of a vessel for injuries occasioned by the unskilful navigation of his vessel, while under the control of a Pilot, whom the owner was compelled to take on board, and in whose selection he had no voice; and that 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 persons are concerned, must always be considered as the acts of the Owner.

This exemption of the Owner from liability when the Ship is under the control of what has been termed a "compulsory Pilot" has also been declared by express Statutory enactments(1).

In cases like the present, when damages, are claimed for tortious collisions, a chattel, such as a ship or carriage, may be, and frequently is, figuratively spoken of as the wrongdoer; but it is obvious, that although redress may sometimes be obtained by means of the seizure and sale of the ship or carriage, the chattel

(1) Vide Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, s. 388.

itself is only the instrument by the improper use of which the injury is inflicted by the real wrongdoer.

Assuming, as, for the purposes of this appeal, their Lordships are bound to assume, the truth of the facts stated in the pleadings, and applying the principles of the Common law and Statute law of England to those facts, it appears that the tort for which damages are sought to be recovered in this cause was a tort occasioned solely by the negligence or unskilfulness of a person who was in no sense the servant of the Appellants, a person whom they were compelled to receive on board their Ship, in whose selection they had no voice, whom they had no power to remove or displace, and who, so far from being bound to receive or obey their orders, was entitled to supersede, and had, in fact, at the time of the collision, superseded, the authority of the Master appointed by them; and their Lordships think that the maxim, "qui facit per alium, facit per se," cannot by the law of England be applied, as against the Appellants, to an injury occasioned under such circumstances; and that the tort upon which this cause is founded is one which would not be recognised by the law of England as creating any liability in, or cause of action against, the Appellants.

It follows, therefore, that the liability of the Appellants, and the right of the Respondents to recover damages from them, as the owners of the Halley, if such liability or right exists in the present case, must be the creature of the Belgian law; and the question is, whether an English Court of Justice is bound to apply and enforce that law in a case, when, according to its own principles, no wrong has been committed by the Defendants, and no right of action against them exists.

The Counsel for the Respondents, when challenged to produce any instance in which such a course had been taken by any English Court of Justice, admitted his inability to do so, and the absence of any such precedent is the more important, since 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, in Smith's Leading Cases, vol. i. p. 656, 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 committed, and the impression which had prevailed to the contrary seems to be erroneous.

In the case of The Amalia (1), Lord Chelmsford, in delivering the opinion of the Judicial Committee, said: "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."

As Mr. Justice Story has observed in his Conflict of Laws, p. 32, "it is difficult to conceive upon what ground a claim can be rested to give to any Municipal laws an extra-territorial effect, when those laws are prejudicial to the rights of other Nations or to those of their subjects." And even in the case of a Foreign judgment, which is usually conclusive inter parties, it is observed in the same work, at § 618A, that the Courts of England may disregard such judgment inter parties if it appears on the record to be manifestly contrary to public justice, or to be based on domestic legislation not recognised in England or other Foreign countries, or is founded upon a misapprehension of what is the law of England:Simpson v. Fogo (2).

It is true that in many cases the Courts of England inquire into and act upon the law of Foreign countries, as in the case of a contract entered into in a Foreign country, where, by express reference, or by necessary implication, the Foreign law is incorporated with the contract, and proof and consideration of the Foreign law therefore become necessary to the construction of the contract itself. And as in the case of a collision on an ordinary road in a Foreign country, where the rule of the road in force at the place of collision may be a necessary ingredient in the determination of the question by whose fault or negligence the alleged tort was committed. But in these and similar cases the English Court admits the proof of the Foreign law as part of the circumstances attending the execution of the contract, or as one of the facts

(1) 1 Moore's P. C. Cases (N. S.) 484.

(2) 1 H. & M. 195.

upon which the existence of the tort, or the right to damages, may depend, and it then applies and enforces its own law so far as it is applicable to the case thus established; but it is, in their Lordships' opinion, alike contrary to principle and to authority to hold, that an English Court of Justice will enforce a Foreign Municipal law, and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed.

The case of Smith v. Condry (1), in the Supreme Court of the United States, appears at first sight to have an important bearing upon this case; but, upon an investigation of the report, it does not appear that any question as to a conflict between the English law and the American law was discussed in that case, or that the precise point now under consideration was noticed in the judgment, nor is it specifically mentioned in any of the three exceptions which were taken to the decision of the inferior Court, and there is no report of the arguments.

Their Lordships think, therefore, that that case cannot be treated as an authority sufficient to support the contention of the Respondents; and, on the whole, they think it their duty humbly to advise Her Majesty to allow this appeal, and to order that the third article of the Plaintiff's reply be rejected, and that there should be no costs of this appeal.

Solicitors for the Appellants.: Field, Roscoe, Field, & Francis.

Proctors for the Respondents: Clarkson, Son, & Cooper.

(1) 1 Howard's Rep. (U.S.) 28.