The "Alexander"
| Jurisdiction | England & Wales |
| Judgment Date | 09 March 1842 |
| Date | 09 March 1842 |
| Court | High Court of Admiralty |
English Reports Citation: 166 E.R. 580
HIGH COURT OF ADMIRALTY
S C 1Notes of Cas. 185, 5 Jur 1066 See further, p. 346 post Explained, The ""Ella A. Clark," 1872, Br. & Lush 36 Not followed, The "Two Ellens," 1871, L R 3 Ad. & Ecc 355, affirmed 1872, L R 4 P. C. 161. Observations adopted The "Riga," 1872, L. R. 3 Ad & Ecc 519; The "Pieve Supeneur." 1874, L. R. 5 P. C. 492; The "Rio Tinto." 1884, 9 A C. 360 Applid, The "Heinrich Bjorn," 1885, 11 A. C. 284.
the "alexander"-(Larsen) November 24, 1841.-Construction of the Act 4. 3 & 4 Viet. c. 65, s 6, as to the power of the Court to entertain a suit under the provisions of the Act, for necessaries furnished to a foreign vessel in 1835, prior to the passing of the statute Protest against the jurisdiction of the Court overruled. [SCI Notes of Gas. 185, 5 Jur 1066 See further, p. 346 post Explained, The " Ella A. Clark" 1863, Br. & Lush 36 Not followed, The " Two Ellens," 1871, L R 3 Ad. & Ecc 355, affirmed 1872, L R 4 P. C. 161. Observations adopted, The " Riga," 1872, L. R. 3 Ad & Ecc 519 ; The" Pieve Supeneur" 1874, L. R. 5 P. C 492 ; The " R^o Tinto." 1884, 9 A C. 360 Applied, The " Hemnch Bjorn," 1885, 11 A. C. 284.] In this ease an action was entered against the " Alexander," a Norwegian ship, upon the 22d of July 1840, under the stat. 3 & 4 Viet. c. 65, s. 6, (a) for the recovery of the sum of £46, 13s , the price of an anchor and cable furnished to the vessel by Mitchelson & Co., of London, in the month of July 1835 An appearance was given for the owners under protest, and the jurisdiction of the Court to entertain the suit was denied upon the ground that the cause of action originated prior to the passing of the statute, and that the act in question was prospective and was not intended to have a retrospective operation. In support of the protest, Jenner, for the owners, submitted That the rule of law for construing acts of Parliament, in relation to the time of their coming into operation, had been, correctly laid down by Lord Coke, in his second Institute, p. 292, in the following words, " nova constitutio futuns formam [289] imponere debet non prcEtentis ; " and the same principle was also to be found in Blackstone to the following effect . " There is still a more unreasonable method than this, which is called making laws ex post facto, when after an action (indifferent in itself) has been committed, the Legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law ; " and the learned commentator then goes on to say, "' all laws should be therefore made to commence in futuro, and be notified before their commencement " That the appkcation of a different principle in the present instance would be attended with manifest hardship and injustice, not only to the immediate parties in the suit, but to a large class of interests that might be seriously affected and prejudiced if the construction which the material men now endeavoured to put upon the 6th section of the Act should be adopted by the Court. In the case of mortgagees and purchasers bonafide advancing money upon a vessel without notice of lien, subsequent to the time when necessaries may have been (a) " And be it enacted, that the High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time when the services were rendered or damage received, or necessaries furnished, in respect of which such claim is made." 1W ROB 290 THE "ALEXANDER*' 581 furnished, but antecedent to the passing of the statute in question, what would be the consequence ? Prior to the passing of the Act, material men not in actual possession had no hen whatever upon the ship, and could not proceed against her in specie Is the bona Jide mortgagee or purchaser then, who has advanced his money upon the security of the vessel in reliance upon the ancient law, to be turned round upon by the new Act, and saddled with claims upon the vessel, which, as far as he is con-[290]-cerned, are entirely new claims, and had no legal existence at the time when the mortgage or the purchase was made ? Per Cunam.-You are assuming a difficulty which does not exist in the present case. This is a foreign ship, and the Act in question was framed with the express intention of remedying the inconvenience to which persons in the situation of the claimant in the suit were subjected before the Act passed, in being compelled to prosecute their claims against the owners in foreign Courts If you can show me that in entertaining this suit I am about to postpone a judgment creditor of the owner, you would establish a clear case of injustice , and if there was any prior equitable claim outstanding against the vessel in this case, I should be bound to notice it The jurisdiction of the Court is an equitable as well as a legal jurisdiction, and when the legislature confers upon the Court a jurisdiction to entertain suits of this description under the operation of the recent statute, it is to be presumed that the Court will exercise that jurisdiction in equity and upon equitable principles. Jenner, in continuation-The mortgagee or purchaser might still be unjustly prejudiced by the mere arrest of the vessel, and her possible detention in this country whilst the claim of the material man was under litigation Until the question was judicially brought under consideration, the Court could not know a priori whether or not there were any preferable equitable claims outstanding against the vessel which muat [291] supersede the claim of the material man Upon application being made to the Court for its assistance, the warrant of the Court would be extracted and the vessel would be arrested ; and if, as it might happen, the mortgagee or purchasers were foreigners, and had no agent or correspondent in this country to give the bail required, the vessel must be detained until the whole merits of the case had heii legally decided by the judgment of the Court Under these circumstances he submitted that a hardship and injustice would ensue if the construction now attempted to be put upon the 6th section of the Act should be upheld The rule laid down by Lord Coke and acknowledged by Mr J Blackstone was a sound and just rule, and it had been recognised in the practice of the common law in the following cases1- Gilmore v Shuter, Jones, 108 , 6 Bmgham, 258 ; Wilkinson v Mayer, Lord Raymond, 1122; Towler v Chatt&ton, 6 Bmgham; Poole v Neeld, 2 8id , Freeman v. Moyes, 3 Nev & Man. , Paddon v. Bartlett, 5 Nev & Man 388 For the material men, Addams, contra. That the words of the 6th section of the statute 3 & 4 Viet, c 65, were unambiguous upon the face of them, and that the intention and purpoit of the legislature in framing the Act was clear and obvious. The words of the 6th section \\ere : " The Court shall have jurisdiction to decide all claims and demands whatsoever for necessaries supplied to any foreign ship '' Under these terms he did not mean to contend that the Act was intended to have a retrospective effect upon the direct issue in the cause, but [292] that it should have a retrospective operation as regarding the authority of the Court to take cognisance of the subject matter Under the former state of the law, before the statute passed, material men who had parted with the possession of a vessel, had no means of recovering their demand for necessaries supplied to the vessel but by "a process of common law against the master or the owners if they could be found in this country, or by proceeding against them in a foreign Court. It was for the purpose of remedying this inconvenience, and affording greater facility and protection to the British creditors, that the statute in question was enacted. It was therefore strictly speaking a remedial statute, and as such was to be construed liberally. That the assumed hardship which might fall upon third parties, upon which so much stress has been laid in the argument m support of the protest, could not possibly occur in the present case, inasmuch as the vessel against which the suit was brought was still the property of the same owners upon whose account the necessaries now sued for were furnished, as far back as the year 1835. As regarded the assumed injustice to the immediate parties in the suit, if any consideration upon that point was to influence the decision of the question, tho 582 THK " ALEXANDER " 1 W. BOB. 293 balance strongly preponderated in favour of the material men, who had already suffered injury and injustice from the owners of the vessel in having been kept so long out of their money ; and it would be a still further aggravation of that injustice and injury if the attempt of the owners, to deprive them of the light to have then claims at length adjudicated in the Court, should sucr-ed [293] Jutfyment Dr Lushinqton The action in this case is brought under the provisions of an Act of Parliament passed, in the third and fourth years of Her present Majesty, and the object of the suit is the recovery of a debt alleged to be due for necessaries furnished to the ship, which is a foreign ship, in the year 1835. The vessel has been arrested, and the owners, \\ho aie repieseuted to ha\e been the owners when the debt was incurred, appear under protest alleging that the sixth section of the Act in question is altogether prospective, not only as to the origin of the debt itself, but also as to the remedy for recovering that debt...
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