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HIGH COURT OF JUSTICE ADMIRALTY DIVISION *
ARREST OF FOREIGN SHIP. JURISDICTION.
The "Daring" v. "The Parlement Belge.”
(Before Sir R. J. Phillimore, February 4, 25, 26, and March 15.)
THIS was a motion on behalf of Messrs. Sandford, of Dover, the owners of the steam-tug "Daring" against the Belgian Government, the owners of the mail packet "Parlement Belge," for damages for a collision in Dover Harbour on the 14th February last year.
The case was fully argued before the Court by Mr. Webster and Dr. W. Phillimore for the plaintiffs; and the Solicitor-General, Dr. Deane, and Mr. Bowen for the Crown, when the Court reserved judgment.†
His Lordship now delivered the considered judgment of the Court, and said : "In this case questions of international and public law of the gravest importance have been raised. The Court has to acknowledge the great assistance which it has derived from the learned and able arguments of Counsel, especially the liability in a case which is, I believe, primæ impressionis, and which must be decided upon general principles of analogous law rather than any direct precedent.
"On the 16th February, 1878, the owners of the steam-tug "Daring" served a writ on board the steam-ship "Parlement Belge" against the owners of that vessel and her freight, in which they claimed the sum of 3,500l. for damage arising out of a collision which occurred between that vessel and the steam-tug "Daring" on the 14th February, 1878, off Dover. The defendants put in an appearance, and took no steps whatever. The plaintiffs have proceeded by default, and taken the usual and proper course, and, the case being ripe for judgment, the plaintiffs on the 25th January in this year gave notice on the 4th February that the Court would be moved to direct judgment, with costs, to be entered for them in respect of the damages so claimed, and that the usual order might be made of reference to the Registrar and merchants, and that a warrant should issue, the action being in rem, against the steam-ship "Parlement Belge." Having looked at the papers and pleadings, I perceived that the arrest of the ship and the judgment which were prayed might affect the prerogative of the Crown and its relations with a foreign State; I, therefore, directed that they might have an opportunity, if they thought fit, of showing cause against the prayer of the plaintiffs. The Attorney-General has appeared, and filed what is called an information and protest, which I will now read :
"Before and at the time of the alleged collision, and thenceforward till the present time, the "Parlement Belge" was one of the mail packets running between Ostend and Dover, and one of the packets mentioned in Article VI of the Convention of February 1876, hereinafter referred to. During the period hereinbefore mentioned, and at all material times, the said packets were, and are, the property of His Majesty the King of the Belgians, and in his possession, control, and employ, as reigning Sovereign of the State of Belgium, and have been, and still are, public vessels of the Government and sovereign State of Belgium, carrying his said Majesty's Royal pennon, and were, and are, being navigated and employed by and in the possession of such Government, and not otherwise. The said packets were, and are, officered by officers of the Royal Belgian Navy, holding commissions from His Majesty the King of the Belgians, and in the pay and service of his Government. The said officers are appointed by, and under the control and orders of, the Belgian Minister of Public Works. During the period hereinbefore mentioned, and at all material times, a Convention, dated the 17th February, 1876, has been, and is, in force between Her Majesty the Queen and His Majesty the King of the Belgians—to a copy of which, in the French and English languages, the defendants crave leave to refer, as if the said Convention were duly set forth at length. During the period hereinbefore mentioned, and at all material times, the "Parlement Belge" was carrying the public mails under the said Convention, between and for the Royal Post Offices of Great Britain and Belgium. The Attorney-General, under protest, says that this honourable Court has no jurisdiction to entertain this suit, and that the plaintiffs cannot prosecute the same herein.'
"I have had the advantage of an argument from the Solicitor-General on the whole case. The protest of the Attorney-General raises a question of constitutional law and a question of international law, both of great moment, and which I will endeavour to consider separately. By this protest it is in substance contended that this steam-ship, the 'Parlement Belge,' is not amenable to the process of this Court; first, on the ground that she is the property of the King of the Belgians at the time of the collision, and was controlled and employed by him; secondly, that Her Majesty the Queen, by a Convention with the King of the Belgians, has placed this packet-boat in the category of a public ship of war. I will endeavour to deal with these questions in the order in which I have stated them, though, perhaps, they cannot be kept quite distinct. It is expedient to make this preliminary observation, which is important in its bearing upon one, if not both, of the questions. The collision in this case took place in Dover Harbour, that is, within the body of a county; and, therefore, previously to the year 1840, this Court would have had no jurisdiction in the matter; but by the joint operation of the Statutes 3 and 4 Vict., cap. 65, and 24 Vict., cap. 10, this Court was given a jurisdiction both in rem and in personam in cases where the collision happened in a harbour, as well as upon the high seas. It follows, therefore, that the plaintiffs have a statutable right of action against the "Parlement Belge," unless that vessel be of that privileged class which are not amenable to a Court of law. The burden of proving that she does belong to this class lies upon the defendants, more especially as it appears from the papers before me that she was engaged in carrying on commerce, however limited in its nature, at the time of the collision.
I turn now to the consideration of the first question raised in the protest. I had occasion to consider most, if not all, of the authorities upon this point in the case of the 'Charkieh.' I desire to state at once that, in my opinion, a public ship of war belonging to a State at amity with Her Majesty is exempt from the jurisdiction of this Court. This proposition is maintained in the recent case of the 'Constitution,' and it has been laid down in a variety of cases adjudicated on both in our Courts and in those of the United States of North America, and it may be considered, notwithstanding certain dicta in the case of the 'Prinz Frederic,' to be firmly rooted in the jurisprudence of both these countries.
It has been contended on the part of the Crown, not that the 'Parlement Belge' is a ship of war in the general sense of that word, but that she is used, as hereinbefore stated, as a mail packet, the property of the Crown of Belgium, carrying the Royal pennon and officered by commissioned officers of the Royal Belgian Navy. On the other hand, it must be taken that she is not a public armed ship constituting a part of the military force of the nation; nor is she a vessel, so to speak, of pleasure belonging to the Crown, and on that ground, perhaps, by the comity of nations, in the class of privileged ships.
In the case of the 'Charkieh' I said :— "I am not prepared to deny that a private vessel (for instance, the yacht of the Sultan, though equipped for pleasure and not for war, would be entitled by international comity—at least, so long as it is not withdrawn by the State conceding it—as international law, to the same immunity as a ship of war, and though dicta to the contrary may be found in the writings of some jurists."
"Since that time I have not found reason to alter the opinion I then expressed. The especial duty of the 'Parlement Belge' (to follow the terms of the Treaty, to which I will presently advert) is the conveyance of the mails. But though such be the especial duty of the packet, it is by no means its sole occupation. Mr. Gregory has made an affidavit in the following words :
"That I, on the 8th February, 1879, attended at the office of the Continental Daily Parcels Express to make inquiries as to the conveyance of goods and merchandize from London to Belgium, viâ Dover, to Ostend, by the mail boats, and in reply to my inquiries I was handed the exhibit marked with the letter A, hereunto annexed. That the exhibit referred to is a sort of time and charge Table relative to the conveyance by the Government mail packets, viâ Dover, Ostend, and Calais, of samples of every description, papers, plans, books, articles for private use, luggage, and packets of all kinds up to 200 lbs. weight, between England and the Continent, via France, Belgium, &c. By a reference to paragraph 5 thereof, it appears that the said Continental Daily Parcels Express has been in existence for the last thirty years, and, further that they ship their goods to Belgium by the mail boat, viâ Ostend. I asked a gentleman in the office of the said Continental Daily Parcels Express whether there was any other means by which they could be sent to Belgium, and the reply was, "No; we can only ship by the mail boats, via Dover and Ostend." With reference to paragraph 9 of the Exhibit A, it appears there is no limit as to the size or weight of the parcels that are so shipped, the printed Tariff in the last page going up to 200 lbs., but stating, as to the rates generally, as well as to the special rates to Ostend alone, what additional charge is made for every 10 lbs. according to the Tariff'
"The 'Parlement Belge,' it would appear, is neither a public ship of war nor a private pleasure vessel belonging to the Crown of Belgium, nor is she a public ship sent by the Government on an exploring expedition, like those employed in the Arctic Expedition, all of which ships, it should be observed, belonging to England, were regularly commissioned as ships of war: she is simply a packet conveying certain mails, and carrying on a considerable commerce, officered, as I have said, by Belgian officers, and flying the Belgian pennon. Can such a vessel so employed be entitled to the privileges of a public ship of war? The analogy between the immunity of the Ambassador and a ship of war is obvious. It has been holden by high authority, both in this and other countries, that an Ambassador may lose his privilege by engaging in commerce. Indeed, Lord Campbell was of opinion, that in such a case all his goods unconnected with his diplomatic functions may be arrested to force him to appear, and may afterwards, while he continues, be taken in
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