Davidsson v Hill
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1901 |
| Date | 19 June 1901 |
| Court | King's Bench Division |
King's Bench Division
Kennedy and Phillimore, JJ.
Davidsson v. Hill and Others
Chartered Mercantile Bank of India v. Netherlands India Steam Navigation CompanyDID=ASPMELR 48 L. T. Rep. 546 5 Asp. Mar. Law Cas. 65 10 Q. B. Div. 521
The LeonDID=ASPM 44 L. T. Rep. 613 4 Asp. Mar. Law Cas. 404 6 P. Div. 148
The Wild RangerENR 7 L. T. Rep. 725 1 Mar. Law Cas. O. S. 275 Lush. 553
The ZollvereinENR 27 L. T. Rep. O. S. 160 Swab. 96
Adam v. British and Foreign Steamship Company LimitedDID=ASPMELR 79 L. T. Rep. 31 8 Asp. Mar. Law Cas. 420 (1898) 2 Q. B. 430
Jefferys v. Boosey 23 L. T. Rep. O. S. 275 4 H. L. Cas. 815
Colquhoun v. HeddonELR 62 L. T. Rep. 853 25 Q. B. Div. 129
Routledge v. Low 18 L. T. Rep., at p. 878 L. Rep. 3 H. L., at p. 119
Cope v. DohertyENR 31 L. T. Rep. O. S. 307 2 De G. & J. 614
The Vera CruzDID=ASPMELR 52 L. T. Rep. 474 5 Asp. Mar. Law Cas. 386 10 App. Cas. 59
Read v. Great Eastern Railway Company 18 L. T. Rep. 822 L. Rep. 3 Q. B. 555
Griffiths v. Earl of DudleyELR 47 L. T. Rep. 10 9 Q. B. Div. 357
Ex parte Gordon 14 Otto, 515
The Explorer 23 L. T. Rep. 604 3 Mar. Law Cas. O. S. 507 L. Rep. 3 A. & E. 289
The BerninaDID=ASPM 56 L. T. Rep., at p. 259 6 Asp. Mar. Law Cas., at p. 76
The RuckersENR 4 C. Rob. 73
The Belfast 7 Wallace, 624
The Zeta 69 L. T. Rep. 630 7 Asp. Mar. Law. Cas. 369 (1893) A. C. 468
The ThetaDID=ASPMELR 71 L. T. Rep. 25 7 Asp. Mar. Law Cas. 480 (1894) P. 280
The SarahENR Lush. 549
Rug v. Keyn 2 Ex. Div. 63 13 Cox C. C. 403
The MilfordENR 31 L. T. Rep. O. S. 42 Swab. 362
Fatal Accidents Acts 1846 and 1864 (9 & 10 Vict. c. 93, s. 1; 27 & 28 Vict. c. 95, s. 1)
Negligence — Injury causing death — Alien
Adam v. British and Foreign Steamship Company Limited (79 L. T. Rep. 31; 8 Asp. Mar. Law Cas. 420; (1898) 2 Q. B. 430) dissented from and not followed.
MARITIME LAW CASES. 223 K.B. DIV.] DAVIDSSON V. HILL AND OTHERS. [K.B. DIV. May 16 and June 19,1901. (Before Kennedy and PHILLIMORE, JJ.) Davidsson v. Hill and others, (a) Negligence-Injury causing death-Alien-Death of alien on foreign ship by collision on high seas -Negligence of British ship-Bight of representative of alien to maintain action against English shipowner-Fatal Accidents Acts 1846 and 1864 (9 & 10 Vict. c. 93, s. 1; 27 & 28 Vici. c. 95, s. 1). The provisions of the Fatal Accidents Acts 1846 and 1864 extend to a case where the person in respect of whose death damages are sought to be recovered in an English court against the owner of a British ship was an alien, and was at the time of the negligent act which caused his death on board a foreign ship on the high seas; and therefore a foreigner, the widow of a foreign seaman killed on the high seas while on board a foreign ship by a collision with a British ship caused by the negligent navigation of the British ship, can maintain an action in England under these Acts against the English shipowner for the negligence of his servants in causing the death. Adam v. British and Foreign Steamship Company Limited (79 L. T. Rep. 31; 8 Asp. Mar. Law Cas. 420; (1898) 2 Q. B. 430) dissented from and not followed. Argument of a question of law in an action on the following statement of facts:- 1. Between 2 a.m. and 3 a.m. on the 11th Aug. 1900 a collision occurred on the high seas between the defendants' steamship Exeter City and the Norwegian barque Batata. Shortly after the collision and in consequence thereof the Batata sank, and Johan Davidsson, a Norwegian subject employed as sailmaker on board the Batata, and another man, also a Norwegian subject, were drowned. 2. The collision and the consequent drowning of Johan Davidsson were solely caused by the negligent navigation of the Exeter. City by the defendants' servants. 3. The plaintiff, Josefina Davidsson, is the lawful widow of the said Johan Davidsson, deceased, and brings this action under the provisions of 9 & 10 Vict. c. 93 and 27 & 28 Vict, c. 95 on behalf of herself and the six children lawfully begotten of herself and the said Johan Davidsson, deceased, to recover compensation for his death. There is no executor or administrator of Johan Davidsson, deceased. The question to be decided by the court was whether upon the facts stated above the plaintiff was entitled to recover damages in this action, The Fatal Accidents Act 1846 (9 & 10 Vict, c. 93) provides: Sect. 1. Whereas no action at law law is now maintain-able against a person who by his wrongful act, neglect, or default may have caused the death of another pereon, and it is oftentimes right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him: Be it therefore enacted, that whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have bean liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused coder such, circumstances aa amount in law to felony. Sect. 2. And be it enacted, that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, &c. The Fatal Accidents Act 1864 (27 & 28 Vict, c. 95) provides (in sect. 1) that where there is no executor or administrator of the person deceased, or that, there being such executor or administrator, no such action as in the previous Act mentioned shall be brought by or in the name of such executor or administrator within six calendar months after the death of the deceased, then the action may be brought by or in the name of all or any of the persons for whose benefit the action might have been brought by the executor or administrator. J. A. Hamilton, K.C. (Henry Stokes with him) for the plaintiff.-The question is whether the widow of the foreign seaman who lost his life on the high seas through the negligence of a British ship is entitled to maintain this action. A long series of cases assumed that the action could be maintained, but there is an express decision on the point by Darling, J. in Adam v. British and Foreign Steamship Company Limited (79 L. T. Rep. 31 ; 8 Asp. Mar. Law Cas. 420; (1898) 2 Q. B. 430), in which it was held that the action could not be maintained in this country. There is, however, a decision to the opposite effect by Sir Robert Phillimore in The Explorer (23 L. T. Rep. 604; 3 Mar. Law Cas. 0. S. 507; L. Rep. 3 A. & E. 289). Coming to the Act, the preamble is very general, and in sect. 1 the plain words of the Legislature provide that if the person had been only injured and not killed, and if the injured person himself could have maintained the auction in this country, then, in case of his death, the action may be maintained in this country by the widow. The words are as wide and as express as if the word " foreigner" had been used. The object of the Act was that the wrongdoer should not escape liability by killing a person instead of merely injuring him. In every case, therefore, it comes simply to this: Could the deceased person himself have maintained the action if he had been injured only and not killed ? If so, in the case of his death the action can be maintained by his personal representative. In this case the deceased if he had been merely injured could clearly have maintained an action in this country against the defendants. Generally, to maintain an action of tort the act must be actionable by the lex loci and the lex fori; but in this case, as the accident took place on the high seas, no conflict of law arises, and the case is governed by the law maritime by which all torts on the high seas are actionable, apart from death. The plain words, therefore, and the plain policy of the Act cover this case. As the plaintiff is asking the court to dissent from the judgment of Darling, J. it is necessary to go through the cases. In The Guldfaxe (19 L. T. Rep. 748; 3 Mar. Law Cas. O. S. 201; L. Rep. 2 A. & E. 325) it was held by Sir R. Phillimore, though not without doubt, that the Admiralty Court had jurisdiction to entertain a suit under this Act by the representative of (a) Reported by W. W. CRR, Esq., BARRISTER-at-Law, 224 MARITIME LAW CASES. K.B. DIV.] DAVIDSSON V. HILL...
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Cox v Ergo Versicherung AG (formerly known as Victoria)
...otherwise apply. 30 There is a body of case-law in which the Fatal Accidents Acts have been applied to accidents outside England. In Davidsson v Hill [1901] 2 KB 606, the Fatal Accidents Act 1846 was applied to the death of a foreign seaman on a foreign ship, resulting from a collision wit......