Cory Brothers & Company v "Mecca" (Owners of Turkish Steamship). The "Mecca."
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 1894 |
| Date | 18 December 1894 |
| Court | Court of Appeal |
Admiralty - Jurisdiction - Necessaries - Foreign Ship - Foreign Port - High Seas - Action in rem -
The plaintiffs supplied coals at Alexandria, Port Said, and Algiers to a steamship belonging to Jeddah in Asiatic Turkey, and also, at Port Said, advanced her canal dues.
To recover payment, the plaintiffs, on the arrival of the vessel in this country, commenced an action in rem for necessaries, and arrested her.
On motion by the owners of the vessel to set aside the writ for want of jurisdiction, Bruce, J., granted the application:—
Held, by the Court of Appeal (Lord Halsbury, Lindley and A. L. Smith, L.JJ.), reversing the decision of Bruce, J., that, under the words of s. 5 of the Admiralty Court Act, 1861 (24 Vict. c. 10), “any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs,” the Court had jurisdiction.
Semble, that in respect of the necessaries supplied at Alexandria and Algiers, the Court also had jurisdiction under s. 6 of the Admiralty Court Act, 1840 (3 & 4 Vict. c. 65), those places being “upon the high seas” within the meaning of that section.
APPEAL, by plaintiffs, against an order of Bruce, J., setting aside, for want of jurisdiction, a writ in rem, in an action for necessaries, supplied to a foreign ship in foreign ports.
The plaintiffs were Cory Brothers & Company, Limited, coal merchants, carrying on business in London, at Alexandria, and at Port Said, and Antonio Legembre, their agent, a coal merchant, at Algiers.
In March, 1894, the first-named plaintiffs supplied coals at Alexandria and Port Said to, and at the latter place advanced the canal dues for, the steamship Mecca, registered under Turkish law at Jeddah in Asiatic Turkey, where her owners, the Hamadieh Steamship Company, carried on business. In August the second-named plaintiff supplied coals to the same steamship at Algiers. In respect of the coals supplied at Alexandria the master on March 6 drew a bill of exchange upon Constanti A. Theodoridi of Constantinople, who held a power of attorney from the owners of the Mecca, for 176l. 5s., in favour of Cory Brothers, which bill was accepted, but not paid. In respect of the coals supplied at Port Said, and the canal dues advanced, the master on March 10 drew a bill on his owners for 194l. 8s. in favour of Cory Brothers, which was accepted, but not paid. In respect of the coals supplied at Algiers, the master, on August 28, drew a bill on his owners for 101l. 4s. 6d. in favour of Antonio Legembre; but this bill was not accepted. The three bills together amounted, with notarial charges and interest, to 483l. 1s. 2d.
According to an affidavit read by the plaintiffs, by leave of the Court of Appeal, it appeared that, at Alexandria, the coaling was done by lighters in the roadstead inside the breakwater. At Port Said the vessel, whilst coaling by lighters, lay in the Ismail Basin, directly in line with the entrance to the canal of which it is practically a part. There are no locks outside where the vessel lay, the level is the same as the sea level, and there is practically no tide. At Algiers the coaling was done by lighters in the roadstead inside the breakwater.
On October 4 the plaintiffs commenced an action in the Queen's Bench Division claiming 483l. 1s. 2d. against the master as the drawer of the three bills, and, on October 8, they commenced the Admiralty proceedings in rem, and arrested the vessel then lying in Mostyn Deeps, the writ claiming 800l. for necessaries and coals supplied to the Turkish steamship Mecca, and for Suez Canal dues, and the statement of claim set out the facts with regard to the supply of the coals and the giving of the bills by the master, and alleged that the coals were supplied and the advance made upon the credit of the steamship as well as upon the credit of her master.
On October 25 an order was made in the Queen's Bench Division that, on payment into Court of 400l., the master should be at liberty to defend that action.
On November 5 the defendants, the owners of the Mecca, moved, in the Admiralty Division, to set aside the writ in rem on the ground that the Court had no jurisdiction, or, in the alternative, to stay proceedings pending the trial of the action in the Queen's Bench Division.
Bruce, J., in making an order setting aside the writ and all subsequent proceedings with costs, said: “So long ago as the case of The IndiaF1, Dr. Lushington certainly intimated an opinion that the statute of the 3 & 4 Vict.F2 did not apply to give this Court jurisdiction in a case where necessaries were furnished to a foreign ship at a foreign port, and, from that time to this, I am not aware that the authority of the dictum of Dr. Lushington, even if it were not more than a dictum, has ever been questioned, or that there has been any case during all the years, since that case was decided, where this Court has ever entertained a suit for necessaries furnished to a foreign ship in a foreign port.
With reference to the later statute, that of 1861F3, it has been decided by a number of cases that that statute applies only to British and colonial ships.
I think I am bound by the decision of Dr. Lushington as to the statute of 1840, and I am also bound by a long series of decisions with reference to the statute of 1861.
Counsel for the plaintiffs said that, although from the affidavit to lead the warrant it appears that the necessaries were supplied at the ports of Port Said, Alexandria, and Algiers respectively, yet he thinks that possibly he might be able to adduce some evidence to shew that Port Said was not in territorial waters.
A strong affidavit would be necessary in order to satisfy the Court that Port Said is on the high seas. But I do not think it would be a convenient course for the Court now to give leave to contradict the affidavit to lead the warrant.
I have very little doubt but that Port Said is within territorial waters; but if any question arises upon that point, and the case should go to the Court of Appeal, that Court, in its discretion, can allow affidavits to be filed to shew that Port Said is not in territorial waters.”
On appeal, Nov. 30. Bucknill, Q.C., and Gerard Ince, for the appellants (plaintiffs). The appellants, Cory Brothers, English merchants having depôts, with agents and coal-hulks, at Alexandria and Port Said, and an agent, the other plaintiff, at Algiers, are entitled to prosecute their action in rem for necessaries supplied to the Mecca in those places which, in the view of the Court of Admiralty, are, it is submitted, on the high seas. In respect of Port Said particularly it is well known, and the plaintiffs' affidavit states, that that place only exists for the purposes of the canal — that is, for coaling and doing the other business of vessels passing through. It has been built out into the sea for this special purpose, and has no other trade, and affords no shelter in the sense of a port.
With regard to the contention that these places are on the “high” or “deep” or “main” seas, it will be remembered that by the first of the two statutes passed for restricting the Court of the Admiral to the high seas, viz., 13 Rich. 2, st. 1, c. 5, it was enacted “that the admirals and their deputies shall not meddle from henceforth of anything done within the realm, but only of a thing done upon the sea.” By the second statute, viz., 15 Rich. 2, c. 3, it was declared that “the Admirals' Court shall have no manner of cognizance, power, nor jurisdiction” in respect of “things rising within the bodies of the counties.”
The result of prohibiting the Court of Admiralty from intermeddling with things done within the realm was that, as necessaries were seldom supplied upon the high seas, the jurisdiction in Admiralty could rarely be exercised until the practice grew up of allowing material men to sue for payment out of the proceeds of ships sold in suits instituted by others. This jurisdiction, so exercised, was, however, practically destroyed by the decision of the Privy Council in 1835 in The NeptuneF4, in respect of necessaries supplied in the port of London: see the observations of Dr. Lushington in 1864 in The PacificF5, where the necessaries were supplied at Southampton.
In 1840, however, came the Act now in question (3 & 4 Vict. c. 65). That Act is headed, “An Act to …. extend the jurisdiction of the High Court of Admiralty,” and the preamble states “that the jurisdiction of the High Court of Admiralty may be in certain respects advantageously extended.” It then enacts, by s. 6, “that the High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever …. for necessaries supplied to any foreign ship …. and to enforce the payment thereof, whether such ship may have been within the body of a county, or upon the high seas, at the time when the …. necessaries (were) furnished ….” In this Act the legislature had in contemplation the same idea that is to be found in the statutes of Richard II., viz., the distinction between things done in the realm and on the high seas — that is, the distinction which gave rise to the long struggle to prevent the Admiralty Court taking cognizance of contracts made in this country relating to maritime matters, and dealing with them according to the civil law, so as to encroach upon the jurisdiction of the tribunals at Westminster and interfere with the institution of trial by jury. This was particularly shewn in the efforts of the Admiralty Court to get jurisdiction by feigning that contracts really made on land were made at sea, which was put down by prohibition, though it was only in imitation of the fictitious venue introduced at common law, by which “the conusance of contracts and other...
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- Cory Brothers and Company, Ltd, v The Turkish Steamship "Mecca."
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Goring, The (Admiralty)
...the body of a county and therefore not within the jurisdiction of the Court of Admiralty." As Lord Justice Lindley put it in The "Mecca" [1895] P. 95 at 107, "The expression 'high seas', when used with reference to the jurisdiction of the Court of Admiralty, included all oceans, seas, bays,......
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R v Liverpool Justices, ex parte Molyneux
...which the court had put forward over the years. To make that good, there are only three cases to which I need refer. One is The MeccaELR [1895] P. 95, where the Court of Appeal in the judgment of Lindley L.J. dealt with the matter specifically. Lindley L.J. said, at p. 107: ‘The expression ......