The Hagen

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date05 Mar 1908

Court of Appeal

Lord Alverstone, C.J., Farwell and Kennedy, L.JJ.

The Hagen

The ChristiansborgDID=ASPM 53 L. T. Rep. 612 5 Asp. Mar. Law Cas. 491 (1885) 10 P. Div. 141

The Duc d' AumaleDID=ASPMELR 87 L. T. Rep. 674 9 Asp. Mar. Law Cas. 359 (1903) P. 18

The MannheimDID=ASPMELR 75 L. T. Rep. 424 8 Asp. Mar. Law Cas. 210 (1896) (1897) P. 13

Société Genérale de paris v Dreyfus Brothers 29 Ch. Div. 239

Peruvian Guano Company v. Bockwoldt 23 Ch. Div. 225

Order XI., r. 1 (g). (Rules of the Supreme Court, SI 1897/792)

Collision in foreign waters — Negligence on foreign vessel causing collision between two British vessels — Lis alibi pendens

66 MARITIME LAW CASES. CT. OF APP.] THE HAGEN. [CT. OF APP. Supreme Court of Judicature COURT OF APPEAL March 4 and 5,1908. (Before Lord ALVEBSTONB, 0. J., FARWELL and KEENEDY, L.JJ.) THE HAGEN. (a) Collision in foreign waters - Negligence on foreign vessel canning collision between two. British vessels - Lie alibi pendens - Service of notice of writ out of jurisdiction - Order XI., ??. I (g). A British steamship proceeding down the Elbe collided with another British and a German ship. The Hamburg agent of the British vessel coming down river exchanged letters of guarantee in lieu of bail with the owners of the German steamship, and the German ship subsequently sued the guarantors of the British ship in Germany'. The owners of ??British vessel coming deem stream ?? ?? proceedings in thin country in ?? ?? ?? other British vessel, ?? by summons for leave to serve ?? of the jurisdiction on the ?? steamship. Leave was Held,'??leave to serve notice of the ?? jurisdiction should not have been granted, and should be set aside, as under the circumstances it was not right to force the owners of the German steamship to appear to proceedings in this country when they nod taken proceedings promptly in their own country. Per Farweu, L.J. -. The -court should only exercise the power to grant such leave with caution, and, in eases of doubt, the doubt should be resolved in favour of the foreigner. Appeal, from a decision of Bargrave Deane, J. refusing to set aside an ex par??. order made by Parker, J. giving leave to serve notice of service of a writ out of the jurisdiction. The plaintiffs respondents on the appeal were the Great Central Railway Company, the owners of the City of Bradford, the defendants were the owners of the steamship Hartley and the Denteohe-Australisohe ??. of the steamship Hagen, who carried on business at Hamburg an were the appellants. On the 27th Sept. 1907 the steamship City of Bradford bound down the river Elbe collided with the steamship Hartley bound up the river. The steamship Hagen was following the Hartley up the river, and the Hartley after colliding with the City of Bradford came into collision with the Hagen. Both collisions were alleged by the owners of the City of Bradford to hard been caused by the negligence of the Hagen. On the 30th Sept 1907 the agent of the Great Central Bail .ray at Hamburg and the owners of the Hagen exchanged letters of guarantee in lieu of bail to meet any damage which the respective vessels might have sustained. The owners of the City of Bradford had given their agent no authority to do this, and did not know it had been done. On the 30th Sept the owners of the Hartley isaned a writ to rem against the City of Bradford the owners of which entered an appeaxanoe. On the 2nd Cot the owners of the City of Bradford issued a writ in person against the owners of the Hartley; on the same day the owners of the Hartley entered an appearance in the action, and Parker, ?? sitting as Vacation judge, gave leave to serve notice of the writ on the owners of the Hagen. On the 2nd of legal proceedings were instituted m Hamburg by the owners of the Hagen against the Hartiey. On the 16th Nov. the owners of the City of Bradford pursuant to leave granted by Parker, J. served the owners of the Hagen in Germany with notioe of the writ in the action in personam, and on the 26th Nov. the owners of the Hagen appeared under protest On the 6tb Dec. the owners of the Hagen instituted proceedings against the guarantors of the City of Bradford. On the 27th Jan. 1908 the owners of the Hagen moved the court to set aside the order obtained by the Great Central Railway Company giving leave to serve notice of the writ in the action in personam out of the jurisdiction. Laingt K.C. and A. Pritchard appeared for the appellants, the owners of the Hagen, in support of the motion. H. M. Robertson (with him A. Simon) appeared for the respondents, the owners of the City of Bradford. D. Stephens held a watching brief for the owners of the Hartley. Order XL, r. 1 (g) under which the order was made by Parker, J. is as follows: service out of the ?? of a Trit of summons or notice of a writ of summons may be allowed by the court or a judge whenever. . . . (5) Any person oat of the jarlsdiotlon is a necessary or proper pasty to an lotion properly brought against some other person duly served with in the ?? On the 3rd Feb. judgment was delivered by Bargrave Deane, J. dismissing the motion to Bet aside the order made by the Vacation judge, Bitting in Admiralty, that service of notice of the writ in the action in personam should be made out of the jurisdiction - namely, in Germany. The owners of the Ragen appealed. The appeal was heard on the 4th and 5th March 190%. Laing, K.C. and A. Pritchard for the appellants the owners of the Hagen. - -The application to Parker, J. to serve the owners of the Hagen in Germany with noUoe of the writ was made ex parts. The owners of the ?? object to fighting the case in the English courts; they are not plaintiffs, and therefore are not under the jurisdiction of the court Had the action against the Hagen bean ??rem there is no doubt the proceedings must have been stayed on application: The ChrutioKtborg, 83 L. T. Rep. 612; 5 Asp. Mar. Law CM. ttl (188.1) ; 10 P. Div. 141. So the plaintiffs have iaraed a writ to personam, and the mutter therefore becomes one for the discretion of the court. Parker, J. was not told that the guarantees in lieu of bail had been exchanged in Germany, and that there were proceedings going on in Germany which were MARITIME LAW CASES. 67 CT. OF APP.] THE HAGEN. [CT. OF APP. practically the equivalent of proceeding in this country. He had not the fall materials before him on which to exercise bit discretion. When as soon as possible after the collision bail was asked for and arrest threatened, and these cross letters of guarantee exchanged, which take the place of auretfea in lieu of bail the action here become unnecessary. If the judge had been told that the owners of the City of Bradford had selected to fcske proceedings in Germany b would hare stayed these proceeding. [?? Hartley baa sued the owners of the City of Bradford in ren, bet the latter hare not counter-claimed in that action; they have taken no proceedinq in ram.') Once bail or it equivalent ia given the ahip ought not to be arrested in another country; she has purchased her freedom. The Chruliantborg (upi sub.); The Mannheim, 75 L. T. Rep. 434; 8 lap. Max. Law Gas. 210 (1896) ? (1807) P. 18. [Lord ALVERSTONS C.J. - Were these guarantees by letter as good as bail P] Yes, in The Ohruttantborg (uip sup.) Baggallay, L.J. said: " I am unable to see the distinction, in...

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