The petition of the plaintiff in this cause set forth that the Norwegian barque Napoleon, of the burden of 740 tons, while riding at anchor in Flushing Roads, in the month of January of this year, was run into by the British steam-ship Halley, and thereby suffered considerable damage. In the 11th article of the answer the defendants, the owners of the Halley, stated that "by the Belgian or Dutch laws, which prevail in and over the river Scheldt, and to which the said river is subject, from the place where the river pilot came on board the Halley, and thence up to and beyond the place of the aforesaid collision, it was compulsory on the said steamer to take on board and to be navigated under the directions NEW SERIES, 37.-ADMIRALTY.

and in charge of a pilot, duly appointed or licensed according to the said laws; and that it was by virtue of such laws that the Halley was compelled to take on board and to be given in charge, and until the time of the said collision as aforesaid to remain in charge of, and did take on board, and was given in charge, and up to the time of the said collision remained in charge of the said river pilot, who was duly appointed or licensed according to the said laws, and whom the defendants or their agents did not select, and had no power of selecting;" and that the collision was caused by the negligence, default, or want of skill of such pilot. To this defence the owners of the Napoleon replied as follows: That "by the Belgian or Dutch laws in force at the time and place of the said collision, the owners of a ship which has done damage to another ship by collision are liable to pay and to make good to the owners of such lastly-mentioned ship all losses occasioned to them by reason of such collision, notwithstanding that the 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

B

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 compulsory on such lastly-mentioned ship to be navigated under the direction and in charge of such pilot; and that the defendants, the owners of the Halley, are by virtue of the said laws liable to pay and make good to the plaintiffs all losses occasioned to them by the said collision, even if the statements contained in the 11th article of the said answer be true."

Mr. Brett and Mr. V. Lushington, on behalf of the defendants, moved the Court to reject the reply. This case must be decided according to the lex fori. The plaintiffs, who have commenced the proceedings, have thereby elected the tribunal before which the case is to be tried, and cannot complain if the law of that tribunal is administered. It is contrary to the common law of this country that a master is responsible for the acts of a servant whom he is bound to employ; and as to the compulsion, the Belgian and English law correspond. The present question relates to the remedy, and not to the right of the party suing, and the cases shew that in such instances the lex fori, and not the lex loci commissi delicti, should prevail.

Mr. Manisty and Mr. E. C. Clarkson appeared on behalf of the plaintiffs.-The plaintiffs have suffered an injury from the acts of those on board the defendants' vessel, and it is for the defendants to shew that they are not responsible. The rule as to exemption from the consequences of compulsory pilotage is one arising from the construction of English statutes, and in its effects occasions so much hardship to an innocent sufferer that it should not be extended by implication. This Court, which administers the law of nations, will apply to the present case the general maritime law, which would compel the wrongdoer to make complete restitution. The present question relates to the right of the plaintiffs to indemnity, and not to the remedy, i. e. the mode in which that right is to be enforced; and this contention is fully borne out by the reported cases. The defendants

themselves if they invoke the Belgian law must be bound by it altogether, and cannot ignore the fact that by Belgian law it is also provided that though the owners of vessels are bound to employ a pilot, they must nevertheless be responsible for his acts.

The cases cited are fully referred to in the judgment.

SIR R. PHILLIMORE.-One of the funetions, and not the least important, of the High Court of Admiralty is to administer international justice in maritime suits between foreigners who resort to its jurisdiction, or, as in the present instance, between the foreigner and the British subject. The prize jurisdiction of this Court administers the jus inter gentes, or public international law, and what is called the instance jurisdiction administers the jus gentium, or private international law. The rules of pleading, and the general mode of investigating and trying the merits of such cases when they come before it, are therefore simple, free from technicality, and calculated to do substantial justice. In this Court, as Sir J. Nicholl observes in The Girolamo (1), "the law maritime according to the law of nations is to be administered"; and again he says (p. 189), it "is governed by the rules" (he is not speaking of the Prize Court) "of international law." To the same effect is The Zollverein (2), where Dr. Lushington, in the case of a collision between a British and foreign vessel, says, "The case must be decided by the law maritime, by those rules of navigation which usually prevail among nations navigating the seas where the collision takes place." And in The Golubchick (3) he says, "Upon general principles, I apprehend that this Court, administering, as it does, a part of the maritime law of the world, would have a right to interpose in cases of the present description." If, therefore, this collision had taken place upon the high seas, it must, upon general principles, have been adjudicated according to the Lex Maris.

The claim of the petitioner in this case is founded, according to the Norman lan

(1) 3 Hagg. 177.

(2) Swa. 99. (3) 1 W. Rob. 147.

guage of our common law, upon a tort committed by the defendant; according to the language of jurisprudence, familiar to this Court, upon an obligatio ex maleficio, or as it is more generally, though perhaps less accurately, termed, an obligatio ex delicto, incurred by the defendant. "Res sic habet," Donellus says, "ut omne delictum est maleficium, ita non ex quovis delicto nascatur obligatio sed solum ex maleficio"-Donellus, 1. xv. c. 23. In the case before me this tort was committed, or this obligatio was incurred, in the territory of a foreign state. I think it expedient, therefore, to dwell for a moment on the peculiar character of this obligatio, with the reasoning upon which my judgment is in some measure connected.

According to the Roman law, which on this subject has been generally adopted by continental Europe, the facts which give rise to a legal obligation are said to be four-contractus, quasi contractus, maleficium, quasi maleficium. The two former create an obligation with the consent of the obliged person (obligatus); the two latter without his consent. It is with the third alone with which we are at present concerned, namely, obligatio ex maleficio, or delicto, for it is not necessary to consider the distinction between this and the obligatio ex quasi delicto.

"Delictum," Donellus says, with his usual accuracy and perspicuity, "id est factum id, quo nocetur alteri, jure ita coercetur, ut sarciat alteri quod abstulit. Ex tali culpa" (that is maleficio)-1. xii. c. 11. Grotius says, Obligatio naturaliter oritur, si damnum datum est, nempe ut id resarciatur"-De Jure Belli et Pacis, L. ii. c. xvii. s. 1. This is, in truth, the language of natural justice. The form of remedy under the Roman law was supplied by the Lex Aquilia. The passage in the Digest upon this very subject of collision at sea contains (as so many other passages in that repertory of jurisprudence do) the written equity which the reason of the thing requires : "Si navis tua impacta in meam scapham, damnum mihi dedit, quæsitum est, quæ actio mihi competeret? Et ait Proculus, si in potestate nautarum fuit, ne id acciderit, et culpa eorum factum sit, lege Aquilia cum nautis agendum: quia parvi refert, navem immittendo, aut serraculum ad navem ducendo,

an tua manu damnum dederis; quia omnibus his modis per te damno adficior: sed si fune rupto, aut, cum a nullo regeretur navis incurrisset, cum domino agendum non esse" Dig. 1. ix. tit. ii. 29, 2. According to the principles of natural justice, the wrong-doer to this Norwegian vessel is bound to replace her owner in the position in which he was before the wrong was done; the owner is entitled to what civilians call a restitutio in integrum.

I gladly avail myself of Dr. Lushington's language in this matter, in a case in which he distinguishes (speaking of the duty of the Registrar and merchants, as referees of the High Court of Admiralty) between cases of collision and cases of insurance. "One," he says-The Gazelle (4), "of the principal and most important objections to the report under consideration is this, that the registrar and merchants, in fixing the amount to be paid for repairs, and the supply of new articles in lieu of those which have been damaged or destroyed, have deducted one-third from the full amount which such repairs and new articles would cost. This deduction, it is said, has been made in consideration of new materials being substituted for old, and is justified upon the principle of a rule which is alleged to be invariably adopted in cases of insurance. The first question, then, which I have to consider is, the applicability of the rule in question to a case of the present description; and this question, it is obvious, involves a principle of considerable importance, not only as regards the decision in this particular case, but as establishing a rule for assessing the damages in all other similar cases. Now, in my apprehension, a material distinction exists between cases of insurance and cases of damage by collision, and for the following reasons." And then the learned Judge explains the nature of an insurance contract; and he continues, "With regard to cases of collision, it is to be observed that they stand upon a totally different footing. The claim of the suffering party who has sustained the damage arises not ex contractu, but ex delicto of the party by whom the damage has been done; and the measure of the indemnification is not

(4) 2 W. Rob. 280.

limited by the terms of any contract, but is co-extensive with the amount of the damage. The right against the wrong-doer is for a restitutio in integrum, and this restitution he is bound to make, without calling upon the party injured to assist him in any way whatever. If the settlement of the indemnification be attended with any difficulty (and in those cases difficulties must and will frequently occur), the party in fault must bear the inconvenience. He has no right to fix this inconvenience upon the injured party, and if that party derives incidentally a greater benefit than mere indemnification, it arises only from the impossibility of otherwise effecting such indemnification, without exposing him to some loss or burden which the law will not place upon him."

Again, in the case of The Amalia (5), the same learned Judge says, "The principle of limited liability" (and in this case it is contended that the liability of the British owner is taken away altogether) "is that full indemnity, the natural rights of justice, shall be abridged for political reasons." This is a subject to which I must again advert in another part of my judgment. At present it is enough to say that the dictates of natural justice appear to be in favour of the petition of the Norwegian vessel in this case, which prays this Court to cause the British vessel, the wrong-doer, to make that reparation for wrong done to her which the lex loci delicti commissi, had the suit been brought in a Belgian court, would have enforced.

It is, however, contended on behalf of the British vessel that this Court cannot apply such law to this case; that it must, partially at least (the importance of this qualification will be presently seen), disregard the law of the place in which the wrong was done, and apply that of the place in which the action for redress is brought; that, in other words, the lex fori, and not the lex loci delicti commissi, governs this case. If this be so, the foreign owner will obtain no compensation for the wrong done to his vessel by the British ship, the owner of which will practically escape altogether unscathed. It is not, therefore, too much to say that the arguments and the

(5) 1 Bro. & Lush. 152.

precedents which are brought forward in favour of such a result must be narrowly examined and carefully scanned. It certainly may be that the hands of the Court are tied by municipal law, and prevented from administering the relief which, upon general grounds, it must desire to administer to the petitioner in this case.

The contention on the part of the British owner is, that the lex fori must govern this case, not because that law is made binding on the Court, as in the case of The Amalia (5), by a British statute, but because it is made binding on the Court by an established principle of law, which is to be collected from judicial decisions and the dicta of accredited writers. It is contended, then, that this question belongs to the domain of the lex fori, inasmuch as it is a question relating to the remedy, and not to the right, of the party suing. It becomes important to see what authority, in principle or precedent, there is for this proposition. It is well settled by decisions of the tribunals of this country that all which relates to the form of the remedy, and the mode of enforcing it, all that relates to the conduct of the suit in court, the rules of evidence and to procedure, shall be governed by the lex fori. Indeed, it is a well-established rule of international comity, as old, certainly, as the time of Bartolus, that "de his quæ pertinent ad litis ordinationem inspicitur locus judicii." But to the further proposition, namely, that the nature and character of the remedy itself for instance, the measure of civil damages for a breach of contract, or for the non-fulfilment of any legal obligationis to be regulated by that law, I cannot assent. I am not aware of any direct authority for it; certainly it cannot, in my opinion, be maintained upon principle; and so far as the analogy of the obligation arising from contract applies to this case of obligatio ex delicto, the judicial precedents which I have been able to find are adverse to this proposition.

Mr. Justice Washington, in a judgment delivered in the District Court of Pennsylvania, observes, "The rate of damages to be recovered for a breach of contract is a part of the right to which the injured party is entitled, and it is totally distinct from the remedy provided for enforcing it.