United Africa Co Ltd v Owners of MV Tolten

 

United Africa Co Ltd v Owners of MV Tolten

The Tolten

SHIPPING: ADMINISTRATION OF JUSTICE; Courts

PROBATE, DIVORCE AND ADMIRALTY DIVISION

BUCKNILL LJ, SITTING AS A JUDGE OF THE PROBATE, DIVORCE AND ADMIRALTY DIVISION

27 NOVEMBER, 3 DECEMBER 1945

Admiralty – Jurisdiction – Action in rem – Damage by British ship to pier in Nigerian harbour – Admiralty jurisdiction in rem exercisable over British and

foreign ships for damage in any waters – Admiralty Court Act, 1840 (c 65), s 6 – Admiralty Court Act, 1861 (c 10), ss 7, 35 – Supreme Court of Judicature

(Consolidation) Act, 1925 (c 49), s 22(1) (a) (iv).

The UA Co brought an action in rem in the High Court against the owners of the British motor vessel Tolten for damage caused to their pier and wharf through

the negligent navigation of the Tolten. The shipowners contended that the High Court had no jurisdiction to hear the case since the wharf in question was

situated in the harbour of Lagos, Nigeria. On behalf of the UA Co, it was contended that the High Court had jurisdiction in the matter because the Supreme

Court of Judicature (Consolidation) Act, 1925, s 22(1)(a)(iv) gave the High Court Admiralty jurisdiction over “any claim for damage done by a ship”:—

Held – (i) The Judicature Acts did not extend the Admiralty jurisdiction of the High Court, but merely transferred to the High Court the jurisdiction formerly

exercised by the High Court of Admiralty.

(ii) the Admiralty Court Act, 1861, s 7, gave the High Court of Admiralty jurisdiction “over any claim for damage done by any ship.” Those words must

be given the widest possible interpretation and could not be limited to exclude a case of this kind, notwithstanding that the proceedings were for damage to

immovable property in a foreign country.

Notes

The jurisdiction over “damage done by a ship” given to the Admiralty Court by the Admiralty Court Act, 1861, s 7, and transferred to the High Court by the

Judicature Acts is held to override the common law rule that the English courts cannot exercise jurisdiction over cases of trespass to foreign immovables. The

point was left open in the Mary Moxham, but it is here decided that the jurisdiction given is quite general, and that any other view would unduly fetter the

court and lead in certain circumstances, to absurd results.

As to the Jurisdiction of the High Court over Claims for Damage Done by any Ship, see Halsbury, Hailsham Edn, Vol 1, pp 94–98, paras 120–126; and

for Cases, see Digest, Vol 1, pp 139–142, Nos 467–502.

Cases referred to in judgment

The M Moxham (1876), 1 PD 107, 11 Digest 346, 333, 46 LJP 17, 34 LT 559, revsg (1875) 1 PD 43.

British South Africa Co v Companhia de Mocambique [1893] AC 602, 11 Digest 346, 334, 63 LJQB 70, 69 LT 604.

Bow, McLachlan & Co v Ship Camosun [1909] AC 597, 40 Digest 380, 116, 79 LJPC 17, 101 LT 167.

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Preliminary Issue

Preliminary Issue of law in an action in rem against the owners of the British motor vessel Tolten. The action was transferred to the High Court from

Liverpool District Registry. The plaintiff’s claim was for damage caused to their pier and wharf through the negligent navigation of the Tolten. The

defendants took the objection that the High Court had no jurisdiction in the matter since the wharf in question was in the harbour of Lagos, Nigeria. The facts

are fully set out in the judgment.

Owen Bateson KC for the plaintiffs.

Patrick Devlin KC for the defendants.

Cur adv vult

3 December 1945. The following judgment was delivered.

BUCKNILL LJ. In this case the United Africa Co Ltd, have issued a writ in rem against the owners of the motor vessel Tolten, a British ship registered at the

port of Newport. The amended indorsement on the writ is for damage caused to the plaintiffs’ pier and wharf by the defendants’ motor vessel Tolten through

the negligence of the defendants, their servants or agents. In the statement of claim the plaintiffs allege, inter alia, that they are the owners and occupiers of a

wharf known as Bulk Oil Wharf, situated at Apapa, in the harbour of Lagos, Nigeria, and they allege damage to the wharf through the negligent 􀂭 79􀀉

navigation of the Tolten. The defence specifically denies that the plaintiffs are the owners and occupiers of the wharf in question and objects that, on the facts

set out in the statement of claim, this court has no jurisdiction to adjudicate thereon. By order of the registrar, the question of jurisdiction has been argued

before me as a preliminary point of law.

Counsel were unable to cite any Admiralty action in rem which is a direct authority on the point. Counsel for the defendants in support of the objection,

relied mainly on The Mary Moxham, in which the facts were similar to the facts in this case, except that there the pier was in Spain and not in Nigeria. The

defence by the owners of the steamship in that case to the action, which was in rem, alleged in substance that the court had no jurisdiction; “that the pier

formed part of the land of Spain, and that by the law of Spain the master and mariners were alone answerable for the damage caused by the negligent

navigation of the ship.” The plaintiffs moved the court to strike out that part of the defence which alleged that the court had no jurisdiction and that by the law

of Spain only the master and mariners of the ship were liable for the damage. At the hearing of the objection before Sir Robert Phillimore, it appeared that the

Mary Moxham had been arrested in Spain in respect of the damage to the pier and, in order to procure her release, the defendants agreed with the plaintiffs that

the liability of the defendants should be determined by proceedings in the English courts; in face of this agreement, the defendants did not pursue the point that

there was no jurisdiction. There was argument by counsel on behalf of the plaintiffs in support of the jurisdiction of the court, and then Sir Robert Phillimore

said (1 PD 43, at pp 45, 46):

‘The inclination of my mind, subject to any argument on the point I might have heard from the counsel of the defendants is, that the court has

jurisdiction over the case. In these circumstances I shall treat the case not as coming before me by consent, but as one within the ordinary jurisdiction I

possess to entertain suits arising out of collisions in foreign waters where no circumstance by which such jurisdiction might be ousted has been brought

to my notice.’

The court then heard argument as to whether the law of Spain or English law applied on the question of liability of the owners of the ship for the damage to the

pier. Sir Robert Phillimore decided that the Spanish law was not applicable to the case and that “the damage … must be taken to have been inflicted” by a

British ship “within the ebb and flow of the tide upon a pier in the territory of Spain.”

The case went to the Court of Appeal, but the question of jurisdiction was not argued there, the only question for appeal being whether the law of Spain

applied on the question of the liability of the owners of the ship. James LJ, however, said (1 PD 107, at p 109):

‘… it is a very novel action, and very grave difficulties indeed might have arisen as to the jurisdiction of this court to entertain any action or

proceedings whatever with respect to injury done to foreign soil.’

Mellish LJ said (1 PD 107, at p 112):

‘Whether the rule as to wrongful acts to real or immovable property in a foreign country does not go still further and prevent an action being brought

at all is a question which it is not necessary to determine in this case, because, having regard to the consent of the parties and the agreement that has

been entered into, no such objection to the jurisdiction could be taken in this case.’

The House of Lords in British South Africa Co v Companhia de Mocambique finally decided that the Supreme Court of Judicature has no jurisdiction to

entertain an action in personam “to recover damages for a trespass to land situate abroad.” In the course of the argument counsel who supported the

proposition which the House of Lords subsequently affirmed, cited The Mary Moxham as a case which showed that actions affecting real property are strictly

local in their character and cannot be tried here when they affect foreign countries. Lord Herschell LC, in his speech, quoted the passage in the judgment of

James LJ, to which I have already referred, and then immediately went on to say ([1893] AC 602, at p 622):

‘The distinction between matters which are transitory or personal and those which are local in their nature, and the refusal to exercise jurisdiction as

regards the latter where they occur outside territorial limits, is not confined to the jurisprudence of this country.’

􀂭 80􀀉

I presume, therefore, that Lord Herschell LC considered that James LJ was right when he said that there were very grave difficulties as to the jurisdiction of

the court in The Mary Moxham. This dictum of James LJ and the contrary dictum of Sir Robert Phillimore are the only authorities cited to me which directly

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Preamble

bear upon the point.

In Williams and Bruce on Admiralty Practice, 3rd Edn, (1902) it is stated at p 74:

‘Damage done by a ship to a pier or breakwater has been held to fall within the Admiralty Court Act, 1861, s. 7.’

The Mary Moxham is then referred to in a footnote, with the following comment:

‘But it seems to be open to doubt whether the court can entertain an action for damage done to a pier in foreign territory except pursuant to the

agreement of the parties.’

That was written in 1901, after the British South Africa Co case was decided. I think the matter is one of considerable doubt. It is doubtful whether the

plaintiffs in the present action could sue the owners of the Tolten in personam in England in respect of damage to a pier in their occupation in Nigeria. I do

not think that they need prove a legal title to the pier. This is, however, an action in rem, and not in personam.

Counsel for the plaintiffs argued that the Supreme Court of Judicature (Consolidation) Act, 1925, s 22(1)(a)(iv), gave the High Court Admiralty

jurisdiction over: “Any claim for damage done by a ship.” The Judicature Acts did not extend the jurisdiction of the High Court, but merely transferred to the

High Court the jurisdiction formerly exercised by the High Court of Admiralty. Lord Gorell made this clear, in the Privy Council, in Bow, McLachlan & Co

Ltd v Ship Camosun. He there said ([1909] AC 597, at p 608):

‘[The Judicature Acts] amalgamated the English courts and transferred to the High Court all the jurisdiction which had been previously exercised by

the different courts, so that every judge of the High Court can exercise every kind of jurisdiction possessed by the High Court, but these changes

conferred no new Admiralty jurisdiction upon the High Court, and the expression “Admiralty jurisdiction of the High Court” does not include any

jurisdiction which could not have been exercised by the Admiralty Court before its incorporation into the High Court, or may be conferred by statute

giving new Admiralty jurisdiction. It is true that a judge of the High Court sitting in the Admiralty Division thereof may, as judge of the High Court,

exercise any jurisdiction which is now possessed by a judge thereof, but he does so by virtue of the general jurisdiction conferred upon him, and not by

virtue of any alteration in his Admiralty jurisdiction.’

I must, therefore, look back at the Admiralty Court Acts, 1840 and 1861, to see what jurisdiction the Court of Admiralty had before the Judicature Acts

were passed. The Admiralty Court Act, 1861, s 7, enacted:

‘The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship.’

By sect 35, such jurisdiction:

‘… may be exercised either by proceedings in rem or by proceedings in personam.’

The words of the statute are quite clear, and quite simple and I think that they must be given the widest possible interpretation. The Act of 1840 dealt [in Sect

6] with damage received by a ship on the high seas or “within the body of a county,” but the Act of 1861 does not limit the locality in any way; it simply

states: “The High Court of Admiralty shall have jurisdiction over any claim for damage done by” a ship. That Act has been held to apply to damage done by

a ship to a pier in British waters and to damage by collision between ships in foreign waters. To limit the jurisdiction, as suggested by the defendants, seems

to lead to this strange result: If the Tolten collided with a ship belonging to the plaintiffs moored alongside the pier and the pier was damaged as a result of the

collision, the plaintiffs could sue the Tolten here in respect of damage to their ship, but they could not include in their claim damage done to the pier as a result

of the collision.

Unless precluded by an authority binding on this court, I see no reason why a case of this kind should not be included within the plain words of the

statute. 􀂭 81􀀉 So far as any hardship is concerned—if I am entitled to consider hardship—there is no hardship on the defendants if they have to defend the

action here. They are resident in this country. On the other hand if the plaintiffs are not entitled to arrest the ship except in Nigeria, their remedy against the

ship, which has left Nigerian waters, has gone. The High Court exercising Admiralty jurisdiction may be considered as an international court in this sense,

that it exercises jurisdiction in rem over foreign and British ships alike in respect of damage done by such ships, whether the damage has been done in British

waters, or on the high seas, or in foreign waters. To limit the plain words of the statute so as to exclude a claim of this kind seems to me to impose a fetter on

the jurisdiction of the court to which the court should be slow to submit, and to limit unduly the right of the plaintiffs to arrest the ship which has done the

damage.

For these reasons I reject the plea on demurrer.

Judgment for the plaintiffs on the preliminary point, with costs. Leave to appeal granted.

Solicitors: Lightbounds, Jones & Co (for the plaintiffs); William A Crump & Son (for the defendants).

R Hendry White Esq Barrister.

[1946] 1 All ER 82