Poll v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 16 March 1899 |
| Docket Number | No. 140. |
| Date | 16 March 1899 |
| Court | Court of Session |
Ld. Kyllachy.
ForeignAlienCrownPrerogativeAct of stateFishingTrawlingSea Fisheries Act, 1883 (46 and 47 Vict. cap. 22)Herring Fishery (Scotland) Act, 1889 (52 and 53 Vict. cap. 23) secs. 7 and 8.
Held by Lord Kyllachy, Ordinary, that where an action is raised on account of the actings of a Crown official, and Her Majesty by Her Advocate appears in process and states that the actings complained of were duly authorised by Her, proof that the actings were unauthorised is incompetent.
Held further, per Lord Kyllachy, that an alien is not entitled to question, in the Courts of this country, the administrative acts of the Crown.
The master of a German trawlera German subjectbrought a note of suspension and interdict against the Lord Advocate and also against an officer of the Royal Navy and an officer of the Scottish Fishery Board, praying for interdict against the respondents preventing him from landing certain fish at Aberdeen. The fish had been caught by trawling outside the three-mile limit, but within the area within which trawling is prohibited by the Herring Fishery (Scotland) Act, 1889, sec. 7, and the bye-law, dated 22d November 1892, made by the Fishery Board in pursuance of that section, and the officers had prevented the landing of the fish. The complainer maintained that the Act and bye-law did not apply to foreigners, and that the officers, in acting as they did, had acted ultra vires. In defence the respondents stated that the officers in acting as they did, were obeying, as they were bound to do, special orders given to them by the Secretary for Scotland on behalf of Her Majesty and Her Majesty's Government, and the respondent, Her Majesty's Advocate, was aware of and concurred in said orders being given; and pleaded, inter alia, that the note was incompetent, in respect that the act complained of was an act of state, and that no action lay in the Courts of this country, at the suit of a foreigner, either against the Crown or against the servants of the Crown in respect of such an act.
The Lord Ordinary (Kyllachy) sustained the above plea in law for the respondents, and refused the note.
Opinion (per Lord Kyllachy) that a citizen of one country has no right enforceable by action in the Courts of another country to enter the territory of that other country against the will of its Government.
Opinion further (per eund.) that there is nothing in the Sea Fisheries Act, 1883, or relative international convention, to limit the generality of sec. 9 of the Herring Fishery (Scotland) Act, 1889, which prohibits the landing in Scotland of fish caught in contravention of the Act, and that sec. 9 applies to foreigners as well as to British subjects.
On 24th April 1897 Ernst Otto Ferdinand Poll, a German subject, and master of the steam-trawler Alster, of Altona, near Hamburg, presented a note of suspension and interdict against the Lord Advocate, as representing Her Majesty, by virtue of the Act 20 and 21 Vict. cap. 44, and also against Armytage A. Lucas, R.N., commander of Her Majesty's s.s. Jackal, and William Couper, Fishery Board officer, Aberdeen, praying for interdict against the respondents and all others acting under their instructions or authority from obstructing, or otherwise in any way interfering with the complainer and those employed by him or having his authority, and preventing them landing or selling in Aberdeen or any other part of Scotland, fish caught by the method of fishing known as beam-trawling or otter-trawling in any part of the Moray Firth other than the three-mile limit or area thereof, which is within three miles of the low-water mark on the shores thereof, and as regards bays beyond the distance of three miles from a straight line drawn across the bay in the part nearest the entrance at the first point where the width does not exceed ten miles; and in particular, from obstructing and interfering with the complainer and those employed by him or having his authority, and preventing them landing and selling in Aberdeen the cargo of fish at present on board the said steam-trawler Alster.
The note was passed, interim interdict being refused, and a record was made up.
The fish referred to in the latter part of the prayer had admittedly been caught by trawling in the Moray Firth outside the three-mile limit but within the area within which trawling is forbidden by the Herring Fishery (Scotland) Act, 1889 (52 and 53 Vict. cap. 23), sec. 7, and bye-law of the Fishery Board (dated 22d November 1892) following thereon.
The complainer averred;(Stat. 3) On the complainer attempting to land the said cargo of fish at the harbour of Aberdeen on the morning of Friday the 23d April 1897, he was forcibly and illegally prevented by the respondents Commander Lucas and Mr Couper, and those acting under their authority, and upon making a second attempt to land the fish in the course of the forenoon, he was again similarly prevented. The said steam-trawler Alster is still lying in Aberdeen Harbour, and the said cargo of fish is rapidly deteriorating, and if not immediately landed will become useless, and will have to be destroyed. The said respondents Commander Lucas and Mr Couper allege that they are acting under the instructions and authority of Her Majesty's Secretary of State for Scotland, and the Lord...
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