NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1947.tb00055.x
Date01 July 1947
Publication Date01 July 1947
NOTES
OF
CASES
ADMIRALTY
JURISDICTION
IN
RESPECT
OF
FOREIGN
IMMOVABLES
:
NOTE
ON
'THE
TOLTEN'
OVER half a century has passed since the decision of the House
of Lords in the case of
British South Africa Co.
v.
Companhia
de Mocambique.'
During that time practitioners and jurists
alike have accepted the view that English courts had no
jurisdiction to entertain actions relating to immovables situated
abroad. Narrowly construed, however, the
Mocambique Case
decided no more than the lack of jurisdiction of English courts
to entertain an action
in personam
for damages for trespass
to foreign land. Based as it was on principles of jurisdiction
generally-universally, one might almost say-accepted by
the courts of civilised nations ib the administration
of
the
conflict of laws, this decision has stood unchallenged and
undistinguished on broader grounds than
it
strictly claimed
until Lord Justice Bucknill was called upon recently to decide
the case
of
The Tolten.2
The
Mocambique Case
had always
been read subject to the exception of equitable jurisdiction
in personam
exemplified in
Penn
v.
Lord Baltimore
and
succeeding decisions.
The
Tolten
has now provided the
Admiralty Division with the opportunity of creating its own
exception to the general rule of jurisdiction over foreign
immovables. The ship
Tolten,
while
leaving the harbour at Lagos, collided with and caused damage
to a wharf owned and occupied by the United Africa Company,
the plaintiffs in the action. The ship having arrived at
Liverpool, the plaintiffs started an action
in rem
in the High
Court, claiming for damage caused to their wharf through
the
negligent
navigation of the
Tolten.
The defendants
objected that the High Court had no jurisdiction
to
entertain
this action for damage
to
foreign land, and this preliminary
issue of law was the only point before the court.
Bucknill, L.J., decided in favour of the plaintiffs on the
wording of the Supreme Court of Judicature (Consolidation) Act,
1925,
s.
22
(1)
(a)
(iv), which gave to the High Court Admiralty
jurisdiction over
'
Any
claim
for
damage done
by
a
ship
',
a
The facts of the case are simple.
1
[189.3]
-4.C.
602.
2
United
Africa
Co.,
Ltd.
v.
The
Owners
of
M.V.
Tolten,
[19461
1
All
E.R.
79.
3
t1750),
1
Ves.
444.
306
JULY
1947
NOTES
OF
CASES
307
jurisdiction which may be exercised
in personam
or
in
ern.^
The
1925
Act merely repeated provisions of earlier statutes
defining Admiralty jurisdiction
;
nor did the Judicature Acts,
1873-5,
interfere with the pre-existing jurisdiction of the Court
of Admiralty.6 The learned Judge gave these statutory pro-
visions the wide interpretation which their terms appeared
to
justify, despite the restrictive dicta of James and Mellish, L.JJ.,
in
The Mary Momham,'
and the general observations
o€
Herschell,
L.C.,
in the
Mocambique Case.
In this view he
was
supported by a statement
of
Williams and Bruce' that
'Damage done by
a
ship to a pier or breakwater has been
held to fall within the Admiralty Court Act,
1861,
s.
7
'.
Lord Justice Bucknill's decision may be summed up in the
concluding words of his judgment
:
'
To limit the plain words
of the statute
so
as to emclude a claim
of
this kind seems to
me to impose a fetter on the jurisdiction
of
the court to which
the court should be slow to submit, and to limit unduly the
right of the plaintifls to arrest the ship which has done the
damage
'.
Effect must be given to
unambiguous statutory provisions, irrespective of general
theories of the international basis of jurisdiction, the doubting
dicta of earlier decisions, and the possible difficulty in the
way of making
a
judgment effe~tive.~
It
was
a
very English
judgment, from which the defendants appealed.'
In the Court
of
Appeal Lord Justice Scott, in a lengthy
judgment, characterised by care and enriched by comparative
reference, dealt first with the corner-stone of the appellants'
case-the
Mocambique
rule. He accepted, subject to one
caveat
and as
a
statement of
'
our municipal rule
of
common
law jurisdiction'2
the headnote of the principle in the
Mocambique Case
that
'
The Supreme Court
of
Judicature has
no jurisdiction to entertain an action to recover damages
for
a
trespass to land situate abroad
'.
The
caveat
was directed to
the facts
of
the
Mocambique Case,
which were a trespass to for-
eign land, not an Admiralty action. This attempt of the Court
of Appeal to interpret and qualify a decision of the House
of
4
Supreme Court of Judicature (Consolidation) Act,
1925,
8.
33
(2).
5
Admiralty Court Acte,
1840
and
1861.
6
Bow,
McLachlan
d
Co.,
Ltd.
v.
Ship
Carnosum,
[1909]
A.C.
597.
'
(1876),
1
P.D.
107.
8
Admiralty Practice, 3rd ed., p.
74.
9
E.g.,
in an Bdmiralty action,
in
personam
where leave
has
been given to serve
a
defendant out
of
the jurisdiction under Order
XI,
r.
1,
R.S.C.
[1946]
2
All
E.R.
372.
The Court consisted
of
Scott,
Somemell
and
Cohen,
L.JJ.
The reasoning is clear.
2
Per
Scott,
L.J.,
at
p.
374

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