Application of British

local regula

tions to foreign ships. Application to British ships of

foreign local regulations.

Application to foreign ships of rules

as to presumption of fault con

No question as to the rule of the road, or as to the law applicable to the particular case, such as arose in the cases. decided under former Acts, can now be raised. All maritime nations having adopted the Regulations, and the courts of this country being required by the municipal law to apply the Regulations to the ships of all nations that have adopted them, the rule of the road is the same for all ships, and is recognized alike by international, municipal, and maritime law (s).

Foreign ships, equally with British ships, are bound to know and observe local Regulations for preventing collisions in force in various rivers and harbours of this country (t).

Foreign municipal regulations as to ships' lights, and rules to be observed in navigating foreign waters, though they have not in the courts of this country the force of law, may, as evidence of negligence, be of importance in determining the liability for a collision in such waters. The effect of special regulations made by the Government of this or a foreign country for its ships of war and for ships under convoy is expressly saved by the Regulations (u).

The law by which the owners of a ship that has been in collision are, upon proof of certain circumstances as to infringement of the Regulations, or as to not assisting the other ship, made liable for the collision, without proof of tained in the actual negligence upon the part of their ship, has been considered in a former chapter (x). There seems to be no

British

statute.

(s) The exceptions with regard to fishing vessels' lights created by the Regulations of 1884 (as to which see infra, p. 385), are probably temporary, it being, doubtless, intended to obtain the adherence of foreign nations to one Code. In one case a Portuguese Court placed a construction upon one of the Regulations, which was directly opposite to that borne by the English version. This was clearly an error of the Portuguese

Court, and has been corrected; see infra, p. 345.

(t) 25 & 26 Vict. c. 63, ss. 32, 57; see The Fyenoord, Swab. Ad. 374; The Seine, ibid. 411, as to the law on this subject under the M. S. Act, 1854; and see The Michelimo and The Dacca, Mitch. Mar. Reg. 1877, as to the application to British ships of local Regulations abroad. (u) Art. 26, infra, p. 527. (x) Supra, pp. 38, 65.

doubt that these enactments apply to foreign ships (y). In various cases the rule as to infringement of the Regulations has been assumed to apply to a British and foreign ship in collision in British waters and also on the high seas (). The wording of the enactment as to not standing by to assist favours the contention that that part of the section which relates to presumption of fault applies to foreign as well as British ships. Both sections, moreover, would probably be held to be rules of evidence, or otherwise applicable to foreign ships as lex fori (a).

Defence of
"compulsory
pilotage

foreign ships.

The defence of compulsory pilotage is available for a foreign as well as for a British ship (b). The statutory available for exemption of owners from liability for damage done by a ship when in charge of a compulsory pilot probably applies to foreign ships (e); and, independently of the statute, foreign as well as British owners are not liable for the acts of a person placed in charge of their ship by the state (d).

Compulsory pilotage abroad.

Statutory limitation of liability applies to

foreign ships.

The employment of a pilot may, by statute, be made compulsory on a foreign ship visiting this country, even where she is beyond three miles from the shores of the United Kingdom (e).

The owners of a British ship, which had been in collision with a foreign ship in the Scheldt, were sued by the foreign ship in this country. The British ship alleged that the collision was caused entirely by the negligence of the pilot, whom, by the Belgian law in force in the Scheldt, she was compelled to take. By the Belgian law owners are liable for the acts of a compulsory pilot. It was held by the Privy Council (reversing the decision of Court below) that the Belgian law, which imposed a liability upon owners to which they were not subject, either by the law of this country or by any principle of justice, had no application, and that the British owners were not liable (ƒ).

In a former chapter it has been stated that the common law right of a sufferer by collision to obtain from the wrong-doer a full recompense has, from time to time, been

(b) As to compulsory pilotage generally, see Ch. X.

(c) As did the former Pilotage Act, 6 Geo. 4, c. 125, s. 55; see The Christiana, 2 Hag. 183.

(d) 17 & 18 Vict. c. 104, s. 388; The Maria, 1 W. Rob. 95, 106. In The Girolamo, 3 Hag. Ad. 169, and other cases under 6 Geo. 4, c. 125, it was held that the statutory exemption of owners from liability for the fault of a compulsory pilot did not apply so as to exempt the owners of a foreign ship in proceed

ings in rem. In The Vernon, 1 W. Rob. 316, Dr. Lushington appears to have considered that the statutory exemption of owners was lex fori.

(e) The Annapolis and The Johanna Stoll, Lush. 295; but see 41 & 42 Vict. c. 73.

(f) The Halley, L. R. 2 P. C. 193; in the Court below, ibid. 2 A. & E. 3; see also The Guy Mannering, 7 P. D. 52, 132; The Augusta, 6 Asp. M. C. 58, 161.

considerably modified by British statutes. Until the passing of 25 & 26 Vict. c. 63, the Act now in force, there was frequently great difficulty, in cases where one or both the ships in collision were foreign, in determining whether the municipal law limiting owners' liability was, or was not, applicable (g). At the present day no such difficulty can arise. Whether the ships are both British, or both foreign, or one British and one foreign, and whether the collision occurs in British waters or on the high seas, the limit of owners' liability is the same, namely, that fixed by 25 & 26 Vict. c. 63.

In The Amalia (h) it was held that the liability of the owners of a British ship in collision with a foreign ship on the high seas (in the Mediterranean) is limited by the Act of 1862. It was contended that the Legislature had no power to alter the rights of foreigners in the case of a collision on the high seas, or to limit the amount of the damages to which by the maritime law they were entitled. It was, however, held by the Privy Council (affirming the decision of Dr. Lushington) that there is no breach of international law in such legislation; and it was said by Lord Chelmsford, in the course of the judgment, and the decision in the case went upon the principle that the owners of a foreign ship in a similar case would be entitled to the benefit of the Act, by which in all cases the liability of the owners of a foreign ship is limited in the same way,

(9) The provisions of the M. S. Act, 1854, did not, in terms, apply to foreigners. Under this Act it was held that the liability of the owners of a British ship in collision with a foreigner, within three miles of the shores of the United Kingdom, was limited: General Iron Screw Collier Co. v. Schurmanns, 1 J. & H. 180; but see The Saxonia, Lush. 410, where this case was questioned; that the liability of the owners of two foreign ships in collision on the high seas, beyond that distancefrom the United King

dom, was unlimited: Cope v. Doherty, 4 K. & J. 367; on app. 2 De G. & J. 614; and that the liability of the owners of a foreign ship in collision with a British ship, beyond the three mile limit, was unlimited: The Wild Ranger, Lush. 553; even although the foreign ship's liability by the municipal law of her own state were the same as that of the British ship by British law: The Wild Ranger, ubi

supra.

(h) Br. & Lush. 151; 1 Moo. P. C. C. N. S. 471.

Rule as to division of

loss applies to foreign ships.

Arrest of ship of a foreign sovereign.

and to the same extent, as that of owners of a British ship (i).

The rule as to division of loss where both ships are in fault for a collision appears to have been applied as part of the law maritime to all collisions, whether in British or foreign waters or on the high seas, and whether the ships were both British, or both foreign, or one British and one foreign. And the statute 36 & 37 Vict. c. 66, extending its operation to the courts other than those having Admiralty jurisdiction, appears to have an equally wide operation (k).

And the rule has been applied in a case of collision between two ships belonging to the same owners, as between a foreign cargo-owner suing the British owners of a ship sailing under a foreign flag for loss of cargo in a collision caused by the fault both of the carrying ship and of the other ship (1).

It is a principle of international law that a sovereign prince or state cannot be sued in a foreign Court. And it seems that this principle applies in the case of proceedings in rem against the public ship of a foreign sovereign (m). But it has been said by Sir R. Phillimore that if a ship of a foreign sovereign engages in trade she is liable to arrest, and the sovereign must be taken to have waived the privilege of immunity from arrest which attaches to a public ship of a foreign state (n). It has also been held

(i) It seems that the law limiting owners' liability is not lex fori. Such was the opinion of Wood, V.-C., in Cope v. Doherty, 4 K. & J. 367, 384; and in The General Iron Screw Collier Co. v. Schurmanns, 1 J. & H. 180, 197. In The Amalia the Privy Council expressed no opinion upon the point, but Dr. Lushington (Lush. p. 153) was of the same opinion as Wood, V.-C., in the cases above mentioned; Cf. also per Lord Stowell in The Carl Johan, mentioned in The Girolamo,

3 Hag. Ad. 169, 186; see sup. p. 218.

(k) See supra, p. 134.

(1) Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521.

(m) The Constitution, 4 P. D. 39. See, however, The Charkieh, L. R. 4 A. & E. 59; ib. 8 Q. B. 197.

(n) The Charkich, supra; but the dictum was not necessary to the decision of the case; and see the observations of the Court of Appeal upon this case, 5 P. D. 217; The Swift, 1 Dods. Adm. 320, 339.