« PreviousContinue »
Crowns, under which Her Majesty the Queen had agreed with the King of the Belgians to place the Belgian mail packets in the category of public ships of war. Both of these questions the learned Judge admitted to be questions of great moment, which deserved to be treated separately, although they could not be kept quite distinct, and he decided to consider in the first place the general question of the immunity of the Belgian steamship from the civil process of the Admiralty Court, as being the property of the Crown of Belgium, carrying the royal pennon, and officered by commissioned officers of the Royal Belgian Navy. We do not propose to follow the learned Judge through his argument on this part of the case, for our object is not to criticise in a controversial spirit his particular decision of the case of Le Parlement Belge, but to deal from a juristical point of view with a great principle involved in his decision, which goes to the root of the jurisdiction of the Admiralty Court, and incidentally involves a breach of public faith towards a friendly Nation. This observation applies to the second part of the learned Judge's argument, which deals with the privilege, secured by Treaty to the Belgian mail-packets, of being considered and treated in all British ports as vessels of war.
It may be convenient at the outset of our observations to consider the language of the Convention between the two Crowns of February 17th, 1876, of which the Sixth Article provides as follows:
“The packets employed for the conveyance of the correspondence between Ostend and Dover shall be steamboats of sufficient power and size for the service, in which they are to be employed. They shall be vessels belonging to the Government, or freighted by order of the Government.
“ These vessels shall be considered and treated in the port of Dover, and in all other British ports at which they may accidentally touch, as vessels of war, and be there entitled to all the honours and privileges, which the interest and importance of the service in which they are employed demand.
They shall be exempted in those ports, as well on their entrance as on their departure, from all tonnage, navigation and port dues, excepting, however, the vessels freighted by order of the Government, which must pay such dues in those ports, where they are levied on behalf of corporations, private companies, or private individuals.
" They shall not be diverted from their especial duty-that is to say, the conveyance of the mails—by any authority whatever, or be liable to seizure, detention, embargo, or arrêt de prince.”
It deserves to be observed, by the way, that this Convention between the two Crowns is stated in the Preamble to be intended to form a sequel to the General Postal Treaty concluded at Berne, in Switzerland, on the gth of October, 1874. It thus forms indirectly part of a great European arrangement, to which the Crown of Great Britain is a party; and the arrest of the Belgian steampacket under civil process from the High Court of Admiralty of England, if the Court should decree such a warrant to issue, would not merely involve a breach of faith on the part of the British Crown towards a friendly Government, but would lay the axe to the root of a great International Compact in a manner, which would be pessimi exempli to the other States, which are parties to that Compact.
We will now proceed to consider the argument of the learned Judge in its bearings on the provisions of the Postal Convention. “ The collision," he said, and we quote as before from the Shipping and Mercantile Gazette, "took place on this occasion in Dover harbour, that is, within the body of an English county, and therefore previously to the year 1840 the Admiralty Court would have had no jurisdiction in the matter, but by the joint operation of the Statutes 3 & 4 Vict., ch. 65, and 24 Vict., ch. 10, that 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 open seas. It follows thereupon that the plaintiffs in this suit 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 learned Judge then proceeded to consider whether the Belgian mail packet was entitled, under the general rule of international comity, to be exempted from the jurisdiction of the Admiralty Court as a public ship of war, and he decided this question in the negative, having in evidence before him that the Belgian mail packet was habitually employed in conveying passengers and their baggage, and a certain class of goods, between Dover and Ostend. This consideration, however, would not affect any Treaty-right of the Belgian mail packets, seeing that by Article X. of the Postal Convention it is provided as follows :
“ The mail packets shall be at liberty to take on board or land at Dover, as well as at other British ports where they may be obliged to put in, any passengers, of whatever nation they may be, with their wearing apparel and luggage, and also with their horses and carriages, on condition that the captains of the said packets shall conform to the regulations of the United Kingdom concerning the arrival and departure of travellers. They shall be prohibited from conveying goods or merchandise on freight with the exception, however, of postal packets and small parcels, the weight of which shall be limited by mutual agreement between the two offices."
On the present occasion we believe that no question of any forfeiture of treaty-privilege was raised against the Belgian mail-packet on the ground of her carrying goods or merchandise in contravention of the Treaty. The judgment of the Court proceeded upon pure considerations of Municipal Law, namely, that the Court was bound to exercise its jurisdiction under certain provisions of the Statute Law of the Realm, and that, as a right of action against the Belgian mail-packet had been given to the plaintiffs by the authority of Parliament, their right, as British subjects, could not be affected by any Treaty between Her Majesty the Queen and the King of the Belgians, unless that Treaty had received the sanction of the British Legislature. So much stress does the learned Judge seem to have laid upon
the circumstance that the plaintiffs on this occasion were British subjects, that we should hesitate to infer that he would hold himself bound to regulate his administration of the Law Maritime, in the case of foreign plaintiffs, by similar considerations of Constitutional Law.
Upon the view, however, which we have ventured to form of the beneficial character of the recent Statute Law of the Realm, we should feel constrained to contend that a foreign subject, under analogous circumstances, would be as much entitled as a British subject to the aid of the civil process of the English Admiralty Court against the Belgian mail-packet. The Admiralty jurisdiction is an international jurisdiction in its origin. It is true that the exercise of the process of the Admiralty Court 'may be controlled by the Municipal Law of the territory, within which it holds its sittings, and it is probable that in no country, where the Admiral has been allowed to set up his tribunal, has his jurisdiction been more jealously restricted by the Statute Law of the Realm, than in England. We do not find, however, in the Statutes cited on this occasion by the learned Judge, anything which applies to the case of a British subject to the exclusion of a foreign subject. They appear to be enabling Statutes of a general character, which have by implication, and in one instance in terms, repealed certain Statutes of the Realm of England, which were passed expressly for the purpose of restraining the Admiralty Court from exercising its jurisdiction, according to the Law Maritime, in any case where a collision between sea-going vessels, of whatever nationality, had happened in tidal waters, if those waters were within the limits of an English county.
It will occur at once to a foreign jurist, who may be conversant with the fact that the High Court of Admiralty of England has been accustomed to exercise its jurisdiction, according to the Law Maritime, over foreign vessels, which have come into collision with British vessels in Chinese or Turkish waters, or in the tidal rivers of Germany and
France-such, for instance, as the Elbe and the Garonne, —to ask himself the question, how, in the case of a collision happening between a British vessel and a foreign vessel in Dover harbour, it can be necessary for the Judge of the High Court of Admiralty to cite an Act of the British Parliament as giving him jurisdiction in such a case, when the proceedings are founded on the same Law Maritime, which is administered by the Court without any authority of an Act of Parliament in the case of a collision happening in the tidal waters of a foreign State? The answer to this question is somewhat far to seek, and it requires for its clear solution an intimate knowledge both of the Statute Law of the Realm of England and of the internecine war long waged between the English Common Law Courts, holding their sittings in Westminster Hall, and the High Court of Admiralty, which was constrained for a long time to hold its sittings on the sea shore, between high-water mark and low-water mark, or upon some quay, washed on either side by the tidal waters of the River Thames, and separated by such waters from the main land. Further, it may almost seem incredible to a foreign jurist that, down to the year 1840, if the Judge of the High Court of Admiralty of England had ventured to permit a warrant of arrest to issue from his Registry against any foreign ship, which had come into collision with a British vessel in the tidal waters of the River Thames, he would have been liable to a prohibition from the Court of King's Bench, and the British subject, who should have presumed to arrest the foreign ship in virtue of such a warrant, would have been liable to an action on the case on the part of the owner of the foreign ship, and would have been mulcted in double damages by the Courts in Westminster Hall. Under restraints of this kind, imposed by the Statute Law, Lord Stowell and Dr. Lushington had their hands fettered from granting any redress to British owners of ships in cases of collision happening within the body of an English county.