Cope v Doherty
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1858 |
| Date | 12 June 1858 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1127
BEFORE THE LORDS JUSTICES.
S. C. 4 K.& J. 367; 27 L. J. Ch. 600; 4 Jur. (N. S.), 699; 6 W. R. 695. See R. v. Keyn, 1876, 2 Ex. D. 139.
[614] cope v. doherty. Before the Lords Justices. May 22, 24, June 12, 1858. [S. C. 4 K. & J. 367 ; 27 L. J. Ch. 600 ; 4 Jur. (N. S.), 699 ; 6 W. E. 695. See R. v. Keyn, 1876, 2 Ex. D. 139.] The 504th and 514th sections of the Merchant Shipping Act, 1854, limiting the damages to be recovered in case of collision by reference to the value of the vessel 1128 COPE V. DOHERTY 2DEG.&J. 615. doing the injury and her freight, do not apply to a collision on the high seas between foreign ships, of which the owners are foreigners. General words in an Act do not always extend to every case which falls literally within them. This was an appeal from the decision of the Vice-Chancellor Wood, allowing a general demurrer. The case below is reported in the fourth volume of Messrs. Kay and Johnson's Reports (page 367). The bill contained statements to the following effect:- 1. On the 28th day of April 1857, a collision took place between the American ship " Tuscarora," of which the Plaintiffs were owners, and an American ship called "Andrew Foster." Shortly after the collision, the "Andrew Foster" foundered and was lost with her cargo. 2. In respect of the loss of the said ship, the Plaintiffs are answerable in damages to the extent and in manner mentioned in Part ix. of " The Merchant Shipping Act, 1854" (that is to say), to the extent of the value of the "Tuscarora" and the freight due or to grow due in respect of her then voyage. Such value, however, is insufficient to answer all the claims made, or which may be made, against the Plaintiffs in respect of the loss of the said ship "Andrew Foster." 3. On the 9th of May 1857 an action was commenced against the " Tuscarora " and her freight in the Court of Admiralty by some of the Defendants or consignees of cargo laden on board the "Andrew Foster;" and by the decree, which was affirmed by the Privy Council on appeal, the Plaintiffs were condemned in the damages consequent on the collision and in costs. Other judgments had been similarly obtained by others of the Defendants, and the " Tuscarora" had been arrested by process of the Admiralty Court, and was still under arrest and liable to be sold. [615] The bill prayed that the value of the ship "Tuscarora," and the freight due and to grow due in respect of her voyage, at the time of the collision, might be ascertained, the Plaintiffs being willing to pay into Court such sum as, upon the result of such inquiry, was properly payable by them. That the sum so paid into Court might be distributed rateably among the several claimants in respect of the loss of the "Andrew Foster." That the claims of all parties who should not come in and establish their claims within such reasonable time as aforesaid might be excluded, and that the Defendants might be restrained from further proceedings in the Admiralty Court, or, if not wholly restrained as aforesaid, then that they might be restrained as aforesaid, except so far as, in the opinion of the Court, they ought not to be so restrained. the solicitor-general, Mr. Amphlett and Mr. Charles Hall, in support of the appeal. The provisions of Part ix. of the Act are applicable to the case, for they are not limited to the ships of any nation, and do not contravene any general law of nations, the general maritime law not being in all cases, as is contended on the other side, one of unlimited liability. The case falls literally within the 504th and 514th sections,(l) which extend expressly to all " sea-[616]-going" ships. Unless, therefore, some controlling context can be found in the Act, clearly shewing, that its words are not to be interpreted according to their ordinary meaning, the demurrer cannot succeed. Now the interpretation clause defines the word " ship " as including every description of vessel used in navigation, not propelled by oars. And the context of the Act, so far from opposing the natural and defined meaning of the words comes in aid of it, for there are many pro-[617]-visions in the Act which must necessarily extend to foreign ships, and shew, therefore, that the word " ship " is not restricted to British vessels. Thus, the provisions in the fourth part of the Act, as to signals, and ships meeting and passing, must apply to ships of all nations. So the provisions in the fifth part, as to compulsory pilotage, and of the eighth part, as to wrecks and salvage, must be construed as extending to foreign ships. In all these, and many other clauses, the word " ship" must necessarily include a foreign ship. Why is it in the section as to collision to receive a different construction 1 When any of the clauses are restricted to British ships, the restriction is expressed. Thus, in the 5th section, specifying the different heads into which the Act is divided, the third part is described as relating to British ships, their ownership, measurement and registry; but the ninth part is described as relating to "liability of shipowners," 3DEG.&J. 618. COPE V. DOHERTY 1129 without the addition of the word " British." So in the commencement of the fourth part, it is enacted, that this part shall apply to all British ships, and all foreign steamships carrying passengers between places in the United Kingdom. If the ninth part had been intended only to apply to British ships the saving clause at the end of it, excluding from its operation "any British ship not being a recognized British ship within the meaning of the Act," would not have been so framed. It was contended, in support of the demurrer, that it would be an interference with the lights of foreign countries for the British Legislature to provide laws for foreign vessels, but it is a well-recognized principle of international law, that the country whose tribunal is resorted to has authority to determine the extent of relief which it will afford for an injury. The quantum of damages is essentially a matter to be determined by the lexfmi, and a restriction on the amount of damages to be re-[618]-covered is no more an infringement of the law of nations, than the limitation of time for recovering arrears of interest; Don v. Lippman (5 Cl. & Fin. 1); "The Vernon " (1 W. Rob. Adm. Rep. 316). Another argument in support of the demurrer was, that the reference to registered tonnage shewed that British ships were alone meant, but this is a fallacious argument, and would prove too much, for it would withdraw from the operation of the Act vessels which are, beyond dispute, intended to be within it, for instance, Newfoundland vessels, which are by the 19th section exempt from the registration, if of not more than thirty tons burden. The reference to the registry only applies to such vessels as are registered, and as to which, therefore, there is this easy mode of determining their tonnage. In other cases, the tonnage must be differently ascertained. The term " registered ton " is a technical expression to denote a particular measurement, and not one excluding vessels whose tonnage is not actually registered. They also referred to Le Boux v. Brown (12 Com. B. 801), "The Zollverein" (2 Jur. N. S. 429) British Linen Company v. Drummond (10 B. & C. 903), De la Vega- v. Vianna (1 B. & Ad. 284), Lopez v. Burslem (4 Moore, P. C. 300). Mr. James and Mr. Gift'ard, in support of the demurrer. We dispute the proposition that the general law maritime is not one of unlimited liability. In the case of The Dundee (1 Hagg. 109), the contrary was laid down by Lord Stowell. The very Act of Parliament now under construction, as well as the preceding Acts, are framed upon the supposition, that the general law is one of unlimited liability, and the limitation of liability pro-[619]-vided by this Act is not universal in any view of the case. It is expressly restricted to sea-going ships. River ships would therefore remain liable to pay damages to the full extent of the injury. The 504th section itself provides for cases in which the amount of liability may exceed the value of the ship and freight. For according to that section a collision, to be protected by it, must take place without the actual fault or privity of the owners. If, therefore, the collision was owing to the ship not being sufficiently found with anchors or other fittings, the liability would be unlimited. So, also, if a British ship is unregistered, the 504th section would not apply, and the liability would then be unlimited. The provision is therefore an exceptional one, and not such as any one nation has authority to impose upon another. It is a qualification and restriction of the general law of nations, and not a mere law of procedure, so as to be within the province of the lex fori as was the case in Don v. Lippman (5 Cl. & F. 1), or Le Roux v. Brown (12 Com. B. 801). Moreover, Acts of Parliament are not to be construed as applying to foreigners, unless they are clearly so expressed; Jefferys v. Boosey (4 H. of L. Cas. 815). The provisions in the Act as to pilotage are expressly restricted to the United Kingdom, and are consequently clearly within the province of municipal law. There is, therefore, no contravention of the law of nations in applying them to foreigners as well as to our own subjects. The fact is, that the general scope of the Act contemplates British ships only, but that in particular cases, such as that of salvage, rules, which are part of general law of and are applicable to all countries, are made to extend to ships of other nations. When a foreign ship is intended to be included, as in section 527, it is mentioned, and section 291, which has been relied upon on [620] behalf of the Plaintiffs is at least equally consistent with the Defendants' interpretation, and the reference to the register of the determination of the tonnage, and the assessment of damages with reference to it, shews that the...
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