With whom the command rests where vessel in tow took the ground, and the following vessel ran into her (0). Where two or more ships are in tow of the same tug, and no agreement has been come to between them and the more than one tug as to which ship is to have the command, it has not vessel is in tow. Admiralty jurisdiction in case of negligent towage. been decided with whom the command rests (p). But it has been held in such a case that one of the ships in tow could not recover against the tug for damage caused by being under way in a thick fog when they ought all to have brought up. It was assumed by the Court that it was the duty of the ship in tow to give the order to bring up (q). Where two vessels were in tow of the same tug, without objection on the part of that one of them which was nearest the tug, and this vessel took the ground and was run into by the other astern, it was held that she could not recover against the vessel that ran into her (→). In a Canadian case (s) a sailing ship in tow with her sail set, was held in fault for a collision with an overtaking and passing steamship, against which she was driven by another ship in tow of the same tug striking her on her quarter. The tug can be sued in rem for damage to the ship in tow received in a collision caused by negligent towage, whether such damage is sustained by the tow in a collision with a third ship or with the tug (t). And the tug may be sued in Admiralty for damages which the tow has been compelled to pay to a third ship for a collision caused by the fault of the tug (u). (0) See Harris v. Anderson, 14 C. B. N. S. 499. (p) The Gipsy King, 5 Not. of Cas. 282. (q) Smith v. St. Lawrence Tow Boat Co., L. R. 5 C. P. 308. (r) Harris v. Anderson, 14 C. B. N. S. 499. (s) The Farewell, 8 Quebec L. R. 87. (t) The Nightwatch, Lush. 542; The Julia, ib. 224. (u) The Energy, L. R. 3 A. & E. 48. It seems that the Admiralty Court has jurisdiction in a claim for damage caused by negligent towage, whether such damage is received in a collision or not: see sup. pp. 27, note (u), 85. The Admiralty jurisdiction of the United States Courts includes all claims arising out of towage contracts: 2 Parsons on Ship. (ed. 1869), 176, 188; The Webb, 14 Wall. 406. Attempts have been made to try the question between Third party tug and tow, as to the ultimate liability for collision with procedure. a third ship by means of the third party procedure under the Judicature Act. The existing rules do not enable a third party to be brought in for such a purpose (...). (r) See Ord. XVI. r. 48; infra, p. 319. CHAPTER IX. ships; collision in foreign waters. FOREIGN SHIPS-FOREIGN LAW-FOREIGN JUDGMENTS. Law applic- IN collision cases where one or both the ships are foreign, able to foreign questions frequently arise as to the law applicable to the case, and particularly as to the application of British statutes to foreign ships. The general rule is that municipal laws are binding upon the subjects of the state by which they are enacted everywhere, but upon foreigners only when they are within its jurisdiction (a). The principle which governs questions of jurisdiction and remedies has been thus stated: "In regard to the merits and rights involved in actions, the law of the place where they originated is to govern. . . . but the forms of remedies, and the order of judicial proceedings, are to be according to the law of the place where the action is instituted, without any regard to the domicil of the parties, the origin of the right, or the country of the act " (b). Before the passing of 25 & 26 Vict. c. 63, foreign laws, and the general maritime law, touching the steps to be taken to avoid collision, and the extent of the shipowner's liability, differed from the law of this country, and questions of difficulty arose in the case of collisions where one or both ships were foreign as to the law applicable to the case. By the Act above mentioned it is provided, with (a) As to the limits of British jurisdiction, see The Saxonia and The Eclipse, Lush. 410; The Annapolis and The Johanna Stoll, Lush. 295; Regina v. Keyn, The Franconia, 2 Ex. D. 63: of Admiralty jurisdiction, infra, p. 209. (b) Story's Conflict of Laws, Ch. 14, § 558, 7th ed. p. 702; and see Donn v. Lippman, 5 Cl. & Fin. 1. So a foreigner in France suing for a collision is subject to the disabilities (fin de non recevoir) of the Code de Commerce, Arts. 435, 436; Abordage Nautique, Caumont, §§ 82, 83. reference to the rule of the road and the extent of shipowners' liability, that in the courts of this country foreign ships shall be judged by the British law. There are, however, several points upon which the decisions above referred to (c) are material, and as to which there is some doubt whether British or foreign law is to prevail. As stated above, the general rule-where the matter is not expressly provided for by statute-is, that as to rights and merits the law of the place of collision (lex loci), and as to remedies and procedure the law of the tribunal (lex fori), is to prevail. The form in which the question may arise at the present day is indicated below. Courts where of Admiralty both the ships are foreign. Actions for collision are said to be communis juris, and Jurisdiction the Admiralty Court never refused to entertain an action merely because both ships were foreign (d), or their owners not British subjects (e), or because the collision occurred in foreign waters (f). Admiralty The ancient jurisdiction of the Admiralty extended over Limits of all waters where the tide ebbs and flows and where great jurisdiction. ships are accustomed to go (g); but after the enactment of 13 Ric. II. st. 1, c. 5, and 15 Ric. II. c. 3, and until the modern statutes enlarging the jurisdiction of the Admiralty Court (h), the Court was liable to be restrained by prohibition from exercising its jurisdiction if the collision occurred in this country within the body of a county (i). (c) See infra, pp. 215, 216, as to these cases. (d) The Johann Friederich, 1 W. Rob. 35; The Charkieh, L. R. 4 A. & E. 120; and see The Evangelistria, 25 W. R. 255 (ownership of a foreign vessel); In re Smith, 1 P. D. 300; The Griefswald, Swab. 430; The Vivar, 2 P. D. 29; and per Story, J., The Invincible, 2 Gall. 29; The Anna Johnson, 2 Stuart's V. Ad. Rep. (Canada), 43. (e) In The Courier, Lush. 541, neither of the ships were owned by British subjects, and the collision was in foreign waters. M. (f) In The Diana, Lush. 539, decided since 24 Vict. c. 10, the ships were owned by British subjects, and the collision was in foreign inland waters. (g) See per Blackburn, J., Reg. v. Anderson, L. R. 1 C. C. R. 161; Reg. v. Carr, 10 Q. B. D. 76. (h) 3 & 4 Vict. c. 65; 24 Vict. c. 10. (i) Martin v. Green, 1 Keb. 730; Violet v. Blague, Cro. Jac. 514; Velthasen v. Ormsley, 3 T. R. 315. In Dorrington's Case, Moore, 916 (13 Jac. 1), a prohibition went in the case of a collision at Redriffe in Р Jurisdiction at common collision is abroad. Where not prohibited the Admiralty Court appears to have exercised the jurisdiction even where the collision was in the body of a county, at least where the ship sued was foreign, and the plaintiff would otherwise be without a remedy (j). At the present day there is no doubt that the Admiralty Division has jurisdiction, and will exercise it, 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 (k). The liability of a foreign ship that has injured property of a British subject in any part of the world to be detained until satisfaction is made to the sufferer, is referred to below (1). occurred in a dock It has been held (m) that a County Court has Admiralty jurisdiction in respect of damages by a collision which connected with a tidal river (the Thames) by a lock. And it seems that the Admiralty Division of the High Court also has jurisdiction in such a case (n). Dr. Lushington exercised the jurisdiction in the case of a collision in foreign inland waters-the Great North of Holland Canal (o). The common law courts have jurisdiction, whether the law when 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, the Thames. The Public Opinion, (j) Fairless v. Thorsen, The Good 648. (k) The Diana, Lush. 539 (collision in the Great North of Holland Canal); The Courier, Lush. 541; The Mali Ivo, L. R. 2 A. & E. 356; as to colonial waters, see The Peerless, Lush. 30; as to a collision in a London dock, see Reg. v. Judge of City of London Court, 10 Q. B. D. 609. (1) Infra, p. 211. (m) Reg. v. Judge of City of London Court, 8 Q. B. D. 609. (n) Under 24 Vict. c. 10, s. 7. (0) The Diana, Lush. 539. |