Castrique v Imrie

DURING the year 1853, and up to the 30th of November, 1854, John George Claus, a British subject, was the registered owner of the ship Ann Martin, registered at Liverpool. In December, 1853, the ship sailed from Liverpool on a voyage to Melbourne, and was to sail thence to Madras, under the command of one William Benson. At Melbourne the ship was supplied by Messrs. Levien & Stenetz with what were admitted to be necessaries, and, in payment for them, Benson drew a bill on Claus for the sum of £601 16s. 6d. This bill did not arrive in England until Claus's bankruptcy, and was never accepted, and when at maturity was dishonoured. On the 30th of November, 1854 (the ship being then in due prosecution of its voyage), Claus, executed, in England, a mortgage of the ship with a power of sale, in favour of one Thomas Harrison, in part payment of a bill for £4000, which mortgage was duly registered at Liverpool, on the 2nd of December, 1854. On the 2nd of February, 1855, Harrison executed a bill of sale of the ship to Richard Emley, who, on the very next day, registered himself as owner. On the 9th of April, 1855, Emley executed a bill of sale of the ship to Louis Castrique, who did not at that time take any steps to register himself as owner. On the 4th of May, 1855, the ship, according to instructions received by the master while he was at Melbourne, went to Havre. On the 10th of May, 1855, while the ship was at Havre, Claus became bankrupt. The bill for £601 16s. 6d. had, in the meantime, been indorsed to Messrs. Trotteux & Co., of Havre, French subjects, and they, whilst the ship was still in that port, commenced in the Court of the Tribunal of Commerce there, a suit against Benson on the bill. Benson was cited and appeared, but did not defend the suit; but allowed judgment to be taken against him, and on the 15th of May, 1855, the judgment was formally recorded. This judgment recited that “the bill in question was drawn by Benson, in his capacity of captain of the vessel Ann Martin, in payment for necessaries supplied to that vessel; and that there is occasion to grant his prayer to be protected from personal arrest.” It went on thus: “The Tribunal condemns Benson in his quality of captain of the vessel Ann Martin, and by privilege on that vessel^F1, to pay to the Plaintiffs the sum of £601 16s. 6d., the amount of the bill,” &c., with interest and costs. No summons in the suit had been served on Claus, Harrison, Emley, or Castrique, nor had they, nor, by the law of France, was it deemed necessary that they should have, any such summons, or any opportunity of appearing in the suit. The ship was, under this judgment, seized in the port of Havre, and detained in the custody of the Court. The ship, however, could not be sold till this judgment of the Tribunal of Commerce had been ratified by the Civil Tribunal of the same district; and the persons appearing by the ship's papers to be the owners of the ship were entitled to appear and be heard before the Civil Tribunal. Claus, and his official assignee Bird, as well as Benson, the master, accordingly received notice to appear; they did not appear, and the judgment of the Tribunal of Commerce was, on the 15th of August, 1855, confirmed, and a sale of the ship ordered. Notice of this final judgment was served upon Bird, the official assignee of Claus, but he never appeared, in person or otherwise, before the Tribunal. After the delivery of this final judgment, Castrique (who had, though not formally, been made aware of these proceedings), upon the 22nd of September, 1855, commenced a suit in the Civil Tribunal of Havre, in the nature of a suit to replevy the ship; the facts were then fully proved, and evidence of the law of England on the subject was given to the Civil Tribunal.

The Civil Tribunal, on the 19th of April, 1856, gave judgment against Castrique^F2. Castrique appealed against this judgment to the Court of Appeal at Rouen, and, in addition to the other documents, furnished the Court with an opinion of Mr. Attorney-General Cockburn^F3. The Appeal Court, however, on the 3rd of March, 1857, gave a judgment in these terms:— “Adopting the reasons which had guided the previous judges, we confirm the judgment of the Civil Tribunal of Havre, and condemn the Appellant in the penalty [damages] and costs.” Castrique effected a registry in his own name as owner on the 13th of April, 1857. The sale took place on the 29th of May, 1857; he attended it, but did not lodge any formal protest against it. The Defendants became the purchasers, and obtained, in the first instance, a provisional certificate of registry from the British consul at Havre; and afterwards, at Liverpool, registered themselves, on the 15th of July, 1857, as owners.

When the vessel arrived in this country, Castrique formally demanded possession of it, and then brought an action in the Court of Common Pleas to recover it, on the ground that the sale in France was illegal and void as against his earlier title.

On the argument of the special case, the Judges of Common Pleas (Justices Williams, Willes, Byles, and Keating), were of opinion that Castrique was entitled to recover^F4. The Court of Exchequer Chamber, Lord Chief Justice Cockburn, Justices Wightman, Blackburn, and Hill, and Barons Martin, Bramwell, and Channell, reversed that judgment^F5. The case was then brought up to this House on Error.

The Judges were summoned, and Mr. Baron Bramwell, Mr. Justice Blackburn, Mr. Justice Keating, Mr. Justice Mellor, Mr. Baron Cleasby, and Mr. Justice Brett, attended.