CO129-532-7 Anti-piracy guards- China Navigation Company v. H.M. Attorney General 19-1-1931 - 20-4-1932 — Page 13

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v. Parsons (2. Barnewall & Alderson, page 562), Morgan v. Palmer (2. Barnewall & Cresswell, page 729), and Steele V. Williams (8, Exchequer, page 625) where public officials have demanded fees not authorised by Parliament for per- forming their duty. The argument also relied on the post- war cases in which Controllers who had the duty to grant licences, affixed to them conditions of payment not author- ised in the Statutes appointing them (see the North Wilts case as to the Food Controller, 91. Law Journal, King's Bench, page 897); the case of the Shipping Controller, Brocklebank v. Rex (1925, 1. King's Bench, page 52), and also Southwark Borough Council v. Partington (3. Knight's Local Government Reports, page 505). Mr. Justice Rowlatt distinguished these cases as relating to persons who had a duty legally enforceable, whereas there was no duty legally enforceable against the Crown to afford protection, especi- ally in foreign countries. Indeed Counsel for the ship- owners agreed that the Courts could not control or review the discretion of the executive as to the method in which the Crown should afford protection, if any, but argued that if the Crown did afford protection, it must be because it was necessary, and for necessary protection no payment could be required.

I entirely agree with the view of Mr. Justice Rowlatt that there is no legal duty on the Crown to afford by its military Forces protection in foreign parts to British subjects. A missionary in self-sacrificing devotion to his religious views, goes without the consent of the Crown into savage countries inhabited by tribes who strongly ob- ject to the missionary denouncing their religion. Has the Crown any duty to follow and protect the missionary and send armed Forces to rescue him from self-imposed danger? A shipowner without the assent of the Crown trades for purposes of his own profit in neighbourhoods inefficiently policed by foreign Governments; for his profit he takes on board large numbers of foreign passengers going on the high seas, or up a navigable river to a foreign port. He is unable to control these foreign passengers or guarantee their peaceful intentions. Has the Crown a legal duty to protect the shipowner against the criminal action of the passengers whom the shipowner himself has invited aboard? It is said on the one hand that a British ship on the high seas, or on the Yangtse, is British territory, and that the Crown must protect British subjects in British terri- tory; on the other hand, that the protection asked is against anticipated danger which may never occur and which results from the act of the shipowner himself in taking evil disposed passengers on board, and to protect not against actual danger in existence.

Counsel for the shipowners used the same dilemma which Lord Justice Atkin unsuccessfully used in the Police case. He says: "If the request "(for special protection) is one which is improper, they should not comply with it. If they do comply with it, they accept it as a proper means, though possibly not the best means of performing their duty."

The majority of the House of Lords objected to being impaled on this dilemma. Lord Cave said at page 279, after reading the dilemma: "With great respect to the learned Lord Justice I am disposed to think that this reasoning rests on en ambiguous use of the word duty'. There may be services rendered by the police which, al- though not within the scope of their absolute obligations to the public, may yet fall within their powers, and in such cases public policy does not forbid their performance."

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