The Halley
| Jurisdiction | UK Non-devolved |
| Judgment Date | 07 June 1868 |
| Date | 07 June 1868 |
| Court | Privy Council |
English Reports Citation: 16 E.R. 514
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY.
Mews' Dig. tit. International Law, VIII. Torts; tit. Master and Servant, II. Rights and Liabilities, etc., B. Liability of Master, 2. e. 1.; tit. Shipping, A. XX. Collision, 3. Liability, b., 9. Foreign Ships-Foreign Law, 10. Compulsory Pilotage, a. Generally, XXVI. Admiralty Law and Practice, 1. High Court, etc., a. i. S.C. L.R. 2 P.C. 193; 37 L.J. Adm. 33; 18 L.T. 879; 16 W.R. 998; and below, L.R. 2 Ad. and E. 3. On point (i.) as to application of foreign law, see Phillips v. Eyre, 1870, L.R. 6 Q.B. 29; Redpath v. Allen, The Hibernian, 1872, 9 Moo. P.C. (N.S.) 348; L.R. 4 P.C. 516; The Maria Moxham, 1876, 1 P.D. 51, 111; The Augusta, 1886, 1887, 56 L.T. 61; 57 L.T. 327; see also Dicey, Conflict of Laws, 1896, pp. 661, 665, and Smith's Leading Cases, 10th ed., notes to Mostyn v. Fabrigas, p. 605. On point (ii.) as to liability of ship, see The Druid, 1842, 1 Rob. W. 391; Stuart v. Isemonger, The Diana, 1842, 4 Moo. P.C. 11, 19: Cail v. Papayanni, The Amalia, 1863, 1 Moo. P.C. (N.S.) 471, 484; The Parlement Belge, 1880, 5 P.D. 197, 198; The Utopia (1893), A.C. 499; The Castlegate (1893), A.C. 52; The Dunlossit (1897), A.C. 97; and see Marsden, Collisions at Sea, 4th ed. pp. 83 et seq. For exemption of liability when ship in charge of Compulsory Pilot, see Merchant Shipping Act, 1894 (57 and 58 Vict. c. 60), s. 633. As to appeals from High Court of Admiralty, see note to Cartwright v. Philpott, The Jeff Davis, 5 Moo. P.C. (N.S.) 32.
[262] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. THE LIVERPOOL, BRAZIL, and RIVER PLATE STEAM NAVIGATION COMPANY, LIMITED,-Appellants; HENRY BENHAM and Others,-Respondents * [June 7, 1868]. the " hallbt." In cases arising upon contracts entered into in a Foreign country, the Courts of England inquire into and act upon the law of Foreign countries where, by express reference, or by necessary implication, the Foreign law is incorporated with the contract, and proof and consideration of the Foreign law becomes necessary to the construction of the contract itself. But in admitting the proof of Foreign law as part of the circumstances attending the execution of the contract, or as one of the facts of the existence of a tort, an English Court applies and enforces its own law so far as it is applicable to the case established, but will not enforce a Foreign Municipal law, and give a remedy in the shape of damages, in respect of an act which by the English law imposes no liability on the person from whom the damage was claimed [5 Moo. P.C. (N.S.) 276, 277]. Thus in a cause of collision promoted by the owners of a Norwegian Barque, against a British Steamer, in the High Court of Admiralty in England, for damage done in Belgian waters, alleged to hare been occasioned by the negligent and improper navigation of the Steam-vessel, the owners of the Steamship pleaded, that the vessel was in charge of a Pilot, whom they were compelled by #he Belgian law to employ. The owners of the Barque replied, that by the Belgian law it is provided that the Owners of a ship which has done damage to another by collision are liable for the damage, notwithstanding the Vessel was in charge of a compulsory Pilot, and although the damage was occasioned by his negligence or want of skill. The owners of the Steamer to this plea objected, that even if the article pleaded were true, they would not be liable in the Court of Admiralty in England. The Court of Admiralty admitted the plea of the Belgian law : - Held, by the Judicial Committee, reversing the decision of the Court of Admiralty, that the claim being founded on a tort committed in the territory of a Foreign State, the party claiming reparation in a British Court was not entitled to the benefit of the Foreign law against the admitted provisions of the Statute law of England, and the practice of the High Court of Admiralty in respect of compulsory pilotage, by which no such liability, as provided by the Belgian law, existed, as it is contrary to principle and authority to hold that an English Court will enforce a Foreign Municipal law, and give a remedy in the shape of damage, in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed. The case of Smith v. Gondry (1 Howard's Rep. (U.S.), 28) observed upon [5 Moo. P.C. (N.S.) 277]. A cause of damage promoted by the Respondents, the owners of the Norwegian Barque Napoleon, against a British Steamship the Hattey, for the recovery of damages by reason of a collision which took place between the Napoleon and the Tlalley, on the 20th of December, 1866, in Flushing Roads, in Belgian territory. * Present: Sir William Erie, Lord Justice Wood, Lord Justice Selwyn, Sir James William Colvile, and Sir Edward Vaughan Williams. 514 halley (the) [1868] v moore n.s., 263 [263] The Appellants, the owners of the Hattey, by the eleventh article of their answer to the Respondents' petition, averred that, by the Belgian law which prevailed at the time and place of the collision, the Hattey was compulsorily in charge of a duly appointed Pilot, whom the Appellants did not select, and had no power of selecting; and by the twelfth and thirteenth articles they further alleged, that all the Pilot's orders were duly obeyed and complied with, and that if the collision was not the result of inevitable accident, it was exclusively occasioned by the negligence of the Pilot. The Respondents in their reply to the Appellants' answer, pleaded by the third article, as follows:-" By the Belgian or Dutch laws in force at the time and place of the collision, the Owners of a Ship which has done damage to another Ship by collision are liable to pay and make good to the owners of such lastly-mentioned Ship all losses occasioned to them by reason of such collision, notwithstanding that the [264] Ship which has done such damage was at the time of the doing thereof being navigated under the direction and in charge of a Pilot, duly appointed or licensed according to the said laws, and notwithstanding that such damage was solely occasioned by the negligence, default, or want of skill of such Pilot, without any contributory negligence on the part of the Master or Crew of such lastly-mentioned Ship; and notwithstanding that it was at the time and place of the collision by the said laws...
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