Crawford v Spooner
| Jurisdiction | UK Non-devolved |
| Judgment Date | 15 December 1846 |
| Date | 15 December 1846 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 582
ON APPEAL FROM THE SUPREME COURT AT BOMBAY.
Mews' Dig. tit. Shipping, A.; III. Registration, 1. Under M.S. Acts, b. Foreign Owners-Foreign Ships. S.C. 4 Moo. Ind. App. 179. On point (i.) as to what is a British ship, cf. s. 1 of Merchant Shipping Act, 1894 (57 and 58 Vict., c. 60); (ii.) as to inability of Court to supply casus omissus (6 Moo. P.C. 9), cf. Mersey Docks, etc., Board v. Henderson, 1888, 13 A.C. 602; Green v. Wood, 1845, 7 Q.B. at p. 185; Whiteley v. Chappell, 1868, L.R. 4 Q.B. 147; Pinkerton v. Easton, 1873, L.R. 16 Eq. 490, 492; Scott v. Legg, 1877, 10 Q.B.D. 238. 3 and 4 Vict. c. 56, was repealed as to all H.M.'s dominions by S.L.R. (No. 2) Act, 1890; Act X. of 1841 was amended by Act XI. Of 1850; Act V. of 1883; and Act VII. of 1891.
REPORTS OF CASES heard and determined by the Judicial Committee and the Lords of the Priyy Council, 1846-49. By edmund F. moore, Barrister-at-Law. Vol. VI. ON APPEAL FROM THE SUPREME COURT AT BOMBAY. ROBERT WIGRAM CRAWFORD,-Appellant; RICHARD SPOONER,- Respondent* [Deo. 11 and 15, 1846]. A ship built in a foreign port in India in 1817, within the limits of the Company's Charter, by foreigners, and which sailed under foreign flags, until 1838, when it was then and thereafter owned by, and belonged to, British subjects, resident at Bombay, is entitled, under the Proclamation of the Governor-General in Council, and the Act of the Legislative Council of India, No. X. of 1841, (passed in pursuance of the powers, granted by the Statute, 3 and 4 Viet., c. 56,) to be registered at Bombay, as a British ship, for the purposes of trade, within the limits of the Company's Charter. This was an action on the case brought by the Appellant, (the owner, to the extent of eight sixty-fourth parts, of a vessel, called the General Wood,) against the Respondent, the registering officer of ships, at the port of Bombay, appointed under the Act of the Legislative Council, No. X. of 1841, for refusal to register the ship, at that port. To the declaration, the Respondent pleaded, that the ship was not, on the llth of September, 1844 (the day named in the declaration, when the refusal was made), or before, had not been, or was then, entitled to the privileges of, or to [2] be registered as, a British ship; and thereupon issue was joined. It was afterwards agreed between the parties that the following special case should be stated for the opinion of the Court. " In the year 1816, a ship was laid down, and in 1817, was completed and built, at Damaan, a Portuguese settlement in India, within the limits of the Company's Charter (as those limits are defined by the 3 and 4 Viet., c. 56), for and as the property of one Manoel Pereira, a Portuguese subject, and resident at Macao, who continued to own the ship, and navigate her, under the flag of Portugal, until the year 1824, when he gold and assigned the ship to one John Hudson, British subject, a master mariner, resident at Calcutta. " John Hudson owned the ship, and navigated her under the British flag, until 1826, when he sold and transferred her to Francis Mendez, Portuguesie, a merchant of Calcutta, who, in 1827, transferred her to Antonio Pereira, also a merchant of Calcutta. The vessel was shortly afterwards transferred to subjects of Portugal, at Macao, and, in 1832, was transferred by them to John Burd, a master mariner, resident at Singapore, but a subject of Denmark. * Present: Members of the Judicial Committee,-Lord Brougham, Lord Lang-dale, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh. Privy Councillors,-Assessors,-Sir E. H. East, Bart., and Sir E. Rya,n, Knt. 582 CRAWFORD V. SPOONER [1846] VI MOORE, 3 " In 1833, John Burd had the vessel registered as a Danish ship at Altona, and, in 1838, he sold and transferred her to Mr. Henderson, a British subject and merchant, then resident at Bombay, by whom the ship was, in 1838, sold and transferred to Messrs. Jar dine, Matheson and Co., British subjects, and merchants of Canton, in China, by whom the ship was, in the same year, re-transferred to John Burd. "In 1841, John Burd sold and transferred the ship back to Messrs. Jardine, Matheson and. Co., who, in the present year, sold and transferred the ship to Sir [3] Jamsetjee Jeejeebhoy, Sons and Co., British subjects and merchants, resident and carrying on business in Bombay, and who had since sold eight sixty-fourth parts or shares in the ship, to the Plaintiff in this action, a British subject, residing at Bombay. " The shipi was navigated under Danish colours whilst owned by John Burd; but on being transferred to Mr. Henderson, a pass was granted by the Master attendant at Bombay, under the provisions of Act No. XIX. of 1838, of the Legislative Council of India, entitled, ' An Act for prescribing the rules to be observed, in order that ships or vessels belonging to ports within the territories under the Government of the East India Company, or belonging to Native Princes or States, or their subjects, might become entitled to the privileges of British ships, under a Proclamation of the Governor-General in Council, in India, made in pursuance of the Statute, 3 and 4 Viet., c. 56. The ship was navigated under British colours, and it was transferred back to John Burd, when it was again navigated under Danish colours, and on being transferred to Messrs. Jardine, Matheson and Co., a sailing letter of licence was granted to them by Sir Henry Pottiiiger, the chief superintendent of the trade of British subjects in China, under which the ship sailed with British colours. " The name of the vessel has been several times changed, and it is now the General Wood. " The survey required by section vii. of the Act of the Legislative Council of India, No. X. of 1841, has been duly made by the Government officers, and the Plaintiffs, and other part owners, have also made to the registering officer the declaration contained in section v. of the Act, and all the requisites of that Act have [4] been complied with; but the Defendant, as the Eegistrar of Shipping for the port of Bombay, refused to register her, under Act, No. X. of 1841, or to grant her a certificate of registry, for the purposes of trade, within the limits of the Company's Charter, on the following grounds:-First. That the vessel has been sold to foreigners. Second. That she has sailed under foreign flags and under foreign names. Third. That at the time of the passing of the Act X. of 1841, she was not sailing under a pass, within the meaning of the said Act. The Plaintiff, on the other hand, contends that the ship having been built within the limits of the Company's Charter, as those limits are defined by the Statute, 3 and 4 Viet., c. [56], and being exclusively owned by Her Majesty's subjects, for whom the Governor-General in Council has power to legislate, is entitled to registry at the port of Bombay, under the Act of the Legislative Council, No. X. of 1841, for the purpose of obtaining the benefit of the Proclamation of the Governor-General in Council, annexed to the said Act; and that, inasmuch as nothing is contained in the Act, excepting or tending to except, from the operation and benefit thereof, vessels which had at any time previously belonged to persons not subjects of Her Majesty, for whom the Governor-General in Council had power to legislate, the Defendant cannot lawfully refuse to register the vessel in question, under the Act and Proclamation, by reason of her having been formerly owned by subjects of a foreign state. " The question for the opinion of the Court is, whether the Plaintiff, and the other owners of the ship, are lawfully entitled to have the ship registered, under the provisions of the Act of the Legislative Council of India, No. X. of 1841, and the Proclamation annexed thereto. [5] " It is agreed that all documents referred to in this case may be referred to fully on the argument. " If the Court should decide in favour of the registry, a verdict is to be entered for the Plaintiff, with nominal damages, the Defendant undertaking to register the vessel accordingly; and if in the negative, a verdict is to be entered for the De- 583 VI MOOEE, 6 CRAWFORD V. SPOONER [1846] fendant, with costs, either party to be at liberty to appeal; and should, pending tlie appeal, the vessel be registered, and allowed to sail and trade under the register, in the event of the decision of the Appeal Court being against the Plaintiff, then the registry of the vessel shall be delivered up to be cancelled." The special case was argued on the 21st of September 1844, before the Supreme Court, consisting of the Chief Justice, Sir Henry Roper, and Sir Erskine Perry, and the Court gave an interlocutory judgment, in the nature of a verdict, in favour of the...
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