rules for navi Foreign municipal regulations as to ships' lights, and Foreign local rules to be observed in navigating foreign waters, may, as gating foreign evidence of negligence, be material in determining, in the waters. courts of this country, the liability for a collision in such waters; although foreign municipal law is not binding on our Courts. in case of between Actions for collision are said to be communis juris; and Jurisdiction the Admiralty Court has never refused to entertain an collision action because the owners of both ships are foreigners, or abroad, or because the collision did not occur within British jurisdic- foreign ships. tion (). A British subject injured by a foreign ship abroad may cause her to be arrested wherever she is found within British jurisdiction (m). The ancient jurisdiction of the Admiralty extended over all waters where the tide ebbs and flows; and although the Admiralty Court was for many years restrained by prohibition from exercising its jurisdiction in cases of collision occurring within the body of a county, by a recent statute its jurisdiction over such waters has been restored. Under the same Act the Admiralty Court has jurisdiction in all cases of collision, whether the collision occurs within the ebb and flow of the tide or not, and whether in British or foreign waters, or on the high seas (n). In the case of a collision in foreign waters between foreign ships, if it is clear that an action is pending in a foreign court in respect of the same matter, the Admiralty Court will stay its proceedings (o). In a case of wilful damage by the master of one foreign ship to another (1) The Johann Friedrich, 1 W. Rob. 35; In re Smith, 1 P. D. 300; The Greifswald, Swab. Ad. 430; The Vivar, 2 P. D. 29; and see per Story, J., in The Invincible, 2 Gall. 29. (m) 17 & 18 Vict. c. 104, s. 527. Lush. 539; The Courier, ibid. 541; (0) The Mali Ivo, ubi supra; The Liability of owners resident abroad. Criminal liability where the ship or the offender foreign ship in foreign waters, the Court refused to entertain the action (p). The common law courts have jurisdiction, whether the ships are British or foreign, and whether the collision occurs in foreign waters, or elsewhere. "The right of all persons, whether British subjects or aliens, to sue in the English courts for damages in respect of torts committed in foreign countries, has long since been established; and, as is observed in the note to Mostyn v. Fabrigas (q), 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 erroneous (r).” Unless the writ can be served within the jurisdiction, owners resident abroad cannot be sued personally for a collision occurring on the high seas below low-water mark of the shores of the United Kingdom (8). But their ship is liable in proceedings in rem, and in some cases may be detained if found within three miles of the United Kingdom, so as to compel the owner to abide the event of any action for damage caused by her (t). But the ship cannot be detained in respect of personal injury received in a collision for which she was in fault (u). In the case of a collision caused by the criminal fault of a foreigner, or where the collision occurs abroad, if it is sought to punish the offender in this country, questions of (p) The Ida, Lush. 6. This case was decided before 24 Vict. c. 10, came into operation. In America the Admiralty jurisdiction of the U.S. Courts extends to inland waters. (q) 1 Smith's Leading Cases, 8th ed. 652. (r) Per Selwyn, L.J., in The Halley, L. R. 2 P. C. 193, 202, 203. (3) Harris v. Owners of The Franconia, 2 C. P. D. 173; Re Smith, 1 P. D. 300; The Vivar, 2 P. D. 29. (t) 17 & 18 Vict. c. 104, s. 527. As to an action in rem, see The Bilboa, Lush. 149. In America any property of the owners of the ship sued which is found within the jurisdiction of the Court may be seized; 2 Parsons on Ship. (ed. 1869), 390. (u) Harris v. Owners of The Franconia, 2 C. P. D. 173; and see supra, P. 64. the collision occurs abroad. difficulty arise as to his liability to the criminal law of is foreign, or England, and the jurisdiction of our courts (x). The liability and jurisdiction depend upon (1) the offender's nationality; (2) the flag of the ship on board which the offence was committed; and (3) the place of collision. In the case of a person killed or injured on board one ship in a collision caused by the fault of a person on board another, the offence, if intentional, would probably be held to have been committed on board the latter; if not intentional, as where it consists in negligence, on board the former (y). The criminal liability for reckless or negligent navigation seems to be as follows. If the ship is British, the offender is liable whether a British subject or a foreigner, and wherever the collision occurs (z). If it occurs in the United Kingdom, or in British territory or waters, he is liable, whether a British subject or a foreigner, and whether the ship is British or foreign (a); if he is a British subject, and probably also if he is a foreigner (b) and the ship British, or if within three months of the offence he has been employed on board a British ship, he is liable wherever the collision occurs (c); if he is a British subject, and the ship British, he is liable if the collision occurs in a foreign port or harbour (d); if he is a foreigner, and the ship British, he is liable if the collision occurs on the high seas; if he is a British subject, and the ship British or foreign, and also, perhaps, if he is foreigner, and the ship British, he is liable if the collision occurs out of, and the (x) As to criminal negligence causing collision, see supra, p. 45. (y) See the judgment of Cockburn, C.J., in Reg. v. Keyn, 2 Ex. D. 63, 232, seq. But see also the judgments of Denman, J., and Lord Coleridge, C.J., ibid. pp. 101, 158. (z) Reg. v. Sattler, D. & B. C. C. 525; Reg. v. Anderson, L. R. 1 C. C. R. 161. As to what is sufficient evidence of the ship being British, (a) Cunningham's Case, Bell's (b) See Reg. v. Anderson, ubi (c) 17 & 18 Vict c. 104, s. 267. injured person dies within, England or Ireland (e); if he is a British subject, and the ship a foreign ship to which he does not belong, he is liable if the collision occurs elsewhere than in the Queen's dominions (f); and, lastly, if he is a foreigner and the ship foreign, he is liable if the collision occurs within three miles of low-water mark on the shores of the United Kingdom (g). (e) 24 & 25 Vict. c. 100, s. 10. This Act does not apply to foreigners on board foreign ships; see Reg. v. Lewis, 1 D. & B. C. C. 182, decided upon 9 Geo. IV. c. 31; and per Cockburn, C.J., in Reg. v. Keyn, 2 (f) 30 & 31 Vict. c. 124, s. 11. 101 CHAPTER V. COMPULSORY PILOTAGE. Owners liable for the negli A PILOT, whether licensed or not, whom the owners are not compelled or required by any penalty or direction of gence of a law to employ, is their servant; and they are answerable pilot employed for a collision caused by his fault or negligence (a). voluntarily. master. The master is not responsible for the acts of a pilot But not the properly placed in charge, either civilly in damages (b) or at a Board of Trade inquiry in respect of his certificate (c). Nor is he liable in such a case for penalties imposed by law for improper navigation of the ship (d). liable for the In some waters the law requires a ship to be navigated Owners not by a qualified or licensed pilot; and not to take a pilot is negligence of a statutory offence punishable by a penalty. A pilot taken a pilot placed in charge by under these circumstances is called a "compulsory " pilot. the law. He is not the owners' servant, and they are not responsible (a) The Maria, 1 W. Rob. 95, 108; The Eden, 2 W. Rob. 442; and see the cases cited below. Under 6 Geo. IV. c. 125, and former Pilot Acts, it was held that where the pilot was employed in pursuance of the Acts, but without compulsion, the statutory exemption of owners from liability applied: Lucey v. Ingram, 6 M. & W. 302; The Fama, 2 W. Rob. 184. Under the Act now in force there is no exemption except where the employment of the pilot is compulsory. (b) See 3 Kent's Comm. § 176. In The Portsmouth, 6 C. Rob. 317, note, the non-liability of those in charge (c) See The Vesta and The City of (d) Oakley v. Speedy, 40 L. T. N.S. 881. As to the relative positions of the pilot and captain on board a Queen's ship, and in foreign ships, see below, p. 110, note (u). |