1858. July 1. ever the interpretation of the statute, the Fyenoord was justified in following the custom of the river in proceeding rather to the south of mid-channel for the purpose of taking up the Customhouse officers. Deane, Q.C., and Vernon Lushington for the Samson. The 297th section applies to foreign steamships, and is not limited by the 291st. The terms of the 291st section are affirmative only, and where the Act intends to exclude it uses excluding words, as in sects. 4, 215. The 191st section, which belongs to Part III. of the Act, where there is an application clause of limited affirmation like the present, has been held to include the case of a foreign master (Milford) (a). If the 297th section can admit of our interpretation, public policy clearly requires that it should prevail. Many examples from other statutes may be found, in which general words include foreigners. Thus the owners of foreign vessels within the jurisdiction have always been held intitled to the exemption for acts of a licensed pilot given by 6 Geo. 4, c. 125, s. 53; and foreign authors, publishing in this country, are intitled to benefit of copyright under 8 Anne, c. 19; Jefferys v. Boosie (b). The observation of Wood, V. C., in Cope v. Doherty, as to the extent of the application of Part IV. of the Act, was an obiter dictum; the true ground of that decision was that the foreign vessel at the time of the act done was on the high seas out of the jurisdiction of English law; but here the collision took place in the Thames. The doctrine of reciprocity alluded to in that judgment is really in our favour; it amounts to this, that one law should govern both parties in similar circumstances (c). But even if the limited construction of sect. 297 must prevail, the Court will presume the statute to have been generally obeyed by British steamships, and this being a British river will thence infer that a customary course of navigation for all steamships has been established, which the foreign steamship was bound to know and obey. This conclusion is not unjust to the foreigner, who is benefited by a consistent rule of navigation being observed, and is necessary for the security of life and property on the river. The custom relied upon by the other side is not sufficiently proved, and is bad in law, being contrary to public policy. Addams, Q.C., in reply. The Right Hon. Sir C. CRESSWELL:-Their Lordships have considered the case presented to the Court below, the judgment. there given and the arguments adduced before themselves, and do not find any difficulty in coming to a conclusion on the matter. 1858. July 1. may not be foreign steamship, but the Court will pre The first question is as to the conduct of the Fyenoord. It has been contended on behalf of the Respondents, that the Fyenoord was bound by the statute to keep towards the north shore. We think it unnecessary to give any opinion upon that Section 297 point, because, even supposing that the statute does not apply binding on a to foreign vessels, we must presume that a customary course of navigation has emanated from the statute, and that this was known to those on board of the Fyenoord. That course bound her to the north side of the river, but she left that and came across to the south side, partly for her own convenience, partly for that of the Custom-house officers. In so doing she acted at her own risk if any ill consequences ensued. We are, therefore, of opinion that the Fyenoord was to blame. proper course sume a cus tomary course of navigation to have ema nated from the statute, which was bound to the foreigner observe. officers, will navigation of the river. blame. 1 was therefore, to At The Samson to blame also for Now as to those on board the Samson, we have as little doubt Custom-house that they were also in fault. It appears that they had been taking in coal on the "blind" side of the hulk, and had thereby been hindered from seeing what was going on in the fairway. We do not think that the coal-sacks, said to have been piled up on the hulk's deck, were so high as to have hindered them seeing if proper The Fyenoord, precautions had been taken. Afterwards, as the Samson clearing the coal-hulk, she saw the Fyenoord coming up. first she attempted to go astern; then, after apparently calculating the risk of backing on the Magnet, and of clearing the bows of the Fyenoord, her master put on all steam and rushed across the track of the Fyenoord. It is said she would still have been safe if the Fyenoord had not made a false move in porting; The Fyenoord was justified in but their Lordships think that porting at the time she did was porting to rethe proper thing. Knowing that she was too far to the south- cover her proward she ported in order to get back to the northward. If the river. master of the Samson had abided by his first intention and stayed where he was, we think the collision would not have occurred. As the fault of each conduced to the loss sustained the damage must be divided. The Appellants to have their costs of appeal. Clarkson, proctor for the Fyenoord. Rothery for the Samson. want of a vigilant look-out. per side of the Damage to be Appellants to divided. have their costs of appeal. 1858. July 6. In the Privy Council. Present-The Right Hon. T. PEMBERTON LEIGH. The Right Hon. Sir CRESSWELL CRESSWELL. THE EVANGELISMOS. Collision-False Arrest-Costs and Damages. A plaintiff in a cause of collision failing to prove the identity of the ship proceeded against, is not liable for damages occasioned by the arrest of the defendant's ship, unless the arrest was made mala fide or with crassa negligentia. THIS HIS was an action of collision brought by the owners of the British brig Hind against the Greek brig Evangelismos. The Evangelismos was arrested on the 20th of October, 1857, and not being bailed continued under arrest. On the 1st of March, 1858, the learned Judge of the High Court of Admiralty pronounced that it was not sufficiently proved that the Evangelismos was the vessel which came into collision with the Hind, and dismissed the action with costs. Application was thereupon made in chambers to the learned Judge to condemn the owners of the Hind in all damages occasioned by the arrest; but he refused the application, upon the ground that the arrest had not been made malâ fide. From this part of the decree the owner of the Evangelismos appealed. Addams, Q.C., and Twiss, Q.C., for the Appellant. The arrest was without probable cause, and thereby the Appellant, a foreigner, has sustained great damages. The power of arrest is very open to abuse, and requires to be restrained by penalties against it being maliciously or even rashly exercised. It is the practice of the Admiralty Court to give damages in the case of a false arrest. The Orion (a), a cause of collision; Glas (a) The following is a report of this case as extracted from the Registrar's book:-The Orion was arrested at the suit of the owners of the Waterloo in a cause of damage. In a few days it was discovered that the Orion was not the right ship, and the action was thereupon subducted, and the ship released, having been under arrest six days. The Court condemned the owners of the Waterloo in costs and damages, caused by the illegal arrest of the Orion, and referred the amount to the Registrar and merchants. gow (a), a cause of possession, and Nautilus (b), a cause of salvage. So at common law, an action lies against the sheriff for a seizure of the wrong goods; Jarmain v. Hooper (c). [Their Lordships declined to consider prize cases of costs and damages, as being subject to very different considerations.] Deane, Q.C., and V. Lushington for the Respondents. The facts show that the arrest was bonâ fide, and not malicious. Proceedings in the Admiralty Court being in rem, the arrest was the necessary foundation of the action; and, by putting the law in motion under a mistake but bonâ fide, no wrong is committed for which damages can be recovered; executio juris non habet injuriam. The proper penalty for such a mistake is costs, in which the plaintiffs have been condemned; and no authority in the Admiralty Court can be produced for giving damages for an improper arrest unless malice is proved. In the Glasgow and the Nautilus, where damages were given, malice was proved and formed the foundation of the judgments. The facts of the Orion are not fully stated, and the motion of the defendants for damages does not appear to have been opposed. The Court of Admiralty does not even always give costs against an unsuccessful plaintiff: thus in causes of collision by inevitable accident, Ebenezer (d), Itinerant (e); or where the defendant establishes a defence under the Pilot Act, Agricola (ƒ); or in causes of salvage, where the tender, though sufficient, is not so large as to make the refusal malâ fide, William (g), Princess Alice (h); or where the point raised and decided against the plaintiff is novel and a proper point for discussion, Maitland (i), Harriot (k), Auckland (l). All authority is in favour of the Respondents. Bentham, speaking of the law of costs, says, "Litigation, though eventually it prove groundless,-litigation, like any other course of conduct of which mischief is the result, is not, therefore, blameable; and where it is blameable, there is a wide difference whether it is accompanied by temerity only, or with consciousness of its own injustice. The countenance shown to the parties by the law ought to be governed, and governed uniformly and proportionally, by these important differences" (m). In common law, where the plaintiff brings his (a) Ante, p. 145. (b) Ante, p. 105. (c) 7 Scott, N. R. 663. Lord (g) 2 W. R. 521. (i) 2 Hagg. 253. (m) Vol. 2, p. 579. 1858. July 6. 1858. July 6. action bonâ fide and fails, the defendant has no redress except costs (a). In Mitchell v. Jenkins (b), Parke, J., says as follows: "I have always understood, since the case of Johnstone v. Sutton, which was decided long before I was in the profession, that no point of law was more clearly settled than that in every action for a malicious prosecution or arrest, the plaintiff must prove what is averred in the declaration, viz., that the prosecution or arrest was malicious and without reasonable or probable cause if there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable; but when there is no reasonable or probable cause, it is for the jury to infer malice from the facts proved." So in Waterer v. Freeman (c), it is said, "But now to the main point, we hold, that if a man bring an action upon a false surmise in a proper Court, he cannot bring an action and charge him with it as a fault directly, and ex diametro, as if the suit itself were a wrongful act, for executio juris non habet injuriam. And as all by nature is good (so Saint Paul saith) the law is good if a man use it lawfully; so the abuse of law is the fault." And the same rule appears in Bird v. Line (d). In De Medina v. Grove (e), the Court held that proof of malice was necessary in an action for issuing a fi. fa. indorsed to the full amount of the judgment debt, when part had been satisfied by payment. In Davies v. Jenkins (ƒ), Rolfe, B., considering the case of a person being wrongfully sued and having execution levied upon him, his name being identical with the real debtor of the plaintiff, observed, "The defendant so wrongfully sued would have had a good defence to the action, and have recovered his costs. If it be asked what further remedy he would have had for the inconvenience and trouble he has been put to, the answer is, that in point of law, if the proceedings have been adopted purely through mistake, though injury may have resulted to him, it is damnum absque injuria, and no action would lie. Every defendant against whom an action is unnecessarily brought experiences some injury or inconvenience beyond what the costs will compensate him for." The action of trespass against the sheriff is allowed on grounds of public policy, as a security against the abuse or careless exercise of his great powers. Lastly, the damages here sought to be recovered were caused by the Appellants' own laches in not bailing their ship. Addams, Q.C., in reply. (a) Co. Litt. 161 A., & Hargrave's (c) Hob. 266. (d) Comyn's R. 190. note. (b) 5 B. & A. 594. (f) 11 M. & W. 755. |