COUNSEL: J. A. Hamilton, K.C., and H. Stokes, for the plaintiff

Balloch (Laing, K.C., with him), for the defendants.

 

SOLICITORS: For plaintiff: Stokes & Stokes.

For defendants: Ince, Colt & Ince.

 

JUDGES: Kennedy and Phillimore JJ.

 

DATES: 1901 May 16; June 19.

 

 

Compensation for Death – Alien – Negligence of British Subject – Cause of Action arising on High Seas – Fatal Accidents Acts, 1846 and 1864 (9 & 10 Vict. c. 93; 27 & 28 Vict. c. 95).

 

The Fatal Accidents Acts, 1846 and 1864, apply as well for the benefit of the representatives of a deceased foreigner as for those of a British subject, at all events as against an English wrong-doer.

 

A collision occurred upon the high seas between a British and a foreign ship owing to the negligence of those in charge of the former. As a result of the collision a foreign seaman on board the foreign ship was drowned:-

 

Held, that the personal representative of the deceased seaman had a right of action by the said Acts against the owners of the British ship.

 

Adam v. British and Foreign Steamship Co., [1898] 2 Q. B. 430, dissented from.

 

ARGUMENT of a point of law upon an agreed statement of facts.

 

1. Between 2 and 3 A.M. on August 11, 1900, a collision occurred on the high seas between the defendants’ steamship Exeter City, which is a British ship, and the Norwegian barque Ratata. Shortly after the said collision and in consequence thereof the Ratata sank, and Johann Davidsson, a Norwegian subject, employed as sailmaker on board the Ratata, was drowned.

 

2. The said collision And the consequent drowning of the said Johann Davidsson were solely caused by the negligent navigation of the Exeter City by the defendants’ servants.

 

3. The plaintiff, Josefina Davidsson, is the lawful widow of the said Johann Davidsson, deceased, and brings this action under the provisions of the statutes 9 & 10 Vict. c. 93, and 27 & 28 Vict. c. 95, on behalf of herself and the six children lawfully begotten of herself and the said Johann Davidsson, deceased, to recover compensation for his death.

 

There is no executor or administrator of the said Johann Davidsson, deceased.

 

The question to be decided by the Court is whether upon the facts stated above the plaintiff is entitled to recover damages in this action. [*607]

 

J. A. Hamilton, K.C., and H. Stokes, for the plaintiff. The benefit of the Fatal Accidents Acts, 1846 and 1864, extends to the representatives of a deceased alien as well as to those of a British subject. The decision of Darling J. to the contrary in Adam v. British and Foreign steamship Co. (1) cannot be supported. If the deceased Johann Davidsson had been merely injured and not killed, he could clearly have maintained an action in this country; therefore the case is exactly within the language of s. 1 of the Act of 1846. The object of the legislation was that the wrong-doer should not escape liability by killing his victim. In a variety of cases in which actions have been brought under the Fatal Accidents Act it has been assumed that the Act applied to foreigners, and equally so whether they happened to be plaintiffs or defendants. In The Guldfaxe (2) Sir R. Phillimore held that the Admiralty Court had jurisdiction to entertain a suit in rem under that Act against a foreign ship. The question of the defendant ship being a foreign ship was not discussed, the only question being as to the power of the Admiralty Court as distinguished from a Court of Common Law to entertain such an action at all. It was assumed that the action would have lain in personam in the common law courts. The Explorer (3) was the converse case, the deceased person being the foreigner. There the point that the Act did not confer any right of action in respect of the death of foreigners caused upon the high seas was expressly taken, and decided against the defendants. In Harris v. Owners of Franconia (4) the action was brought in the common law court under the same Act by the administratrix of one Sullivan, deceased, whose death resulted from a collision on the high seas caused by the negligence of those in charge of the Franconia,which was a German ship. An attempt was made to get an order for service of the writ out of the jurisdiction, and failed because the case was not provided for by the rules of Court. But there could have been no foundation for the argument as to service out of the jurisdiction had it not been conceded that if the foreign owners had been within the jurisdiction they could

 

(1) [1898] 2 Q. B. 430.

 

(2) (1868) L. R. 2 A. & E. 325.

 

(3) (1870) L. R. 3 A. & E. 289.

 

(4) (1877) 2 C. P. D. 173. [*608]

 

have been sued. In Seward v. Vera Cruz (1), where the action was brought in the Admiralty Court under the Fatal Accidents Act against a foreign ship, it was held by the House of Lords that the action would not lie; but the Lords proceeded, not upon the ground that the Act did not apply to foreigners, but upon the ground that the injury to the family of the deceased person killed in a collision at sea could not be said to be “damage done by any ship” within the meaning of s. 7 of the Admiralty Court Act, 1861. They there assumed that but for the difficulty of service of the writ an action could be brought against the owners of a foreign ship in the common law courts.

 

Balloch (Laing, K.C., with him), for the defendants. The decision in Adam v. British and Foreign Steamship Co. (2), upon which the defendants rely, is correct. The question is whether the language of the Fatal Accidents Act shews a clear intention to confer a new right of action upon foreigners resident out of the jurisdiction. The general principle is that Parliament does not legislate for persons over whom it has no control, either in the way of imposing burdens on them or of conferring benefits, and in the absence of a plain expression of such intention cannot be held to have done so. One class of enactments in reference to which this question has been considered consists of those which have limited the liability of shipowners in cases of damage caused by collision. The language of the Merchant Shipping Act, 1854, in the section relating to that subject, is in terms perfectly general, applying to “any seagoing ship.” But it was held in Cope v. Doherty (3) that it did not apply to the case of a collision between two foreign ships upon the high seas, on the ground that prim‰ facie English legislation does not affect the rights or liabilities of foreigners. In General Iron Screw Collier Co. v. Schurmanns (4) it was no doubt held that where a British ship damaged a foreign ship by a collision within the three-mile limit from the shore of the United Kingdom the section did apply; but that decision went upon the ground that the cause of action

 

(1) (1884) 10 App. Cas. 59.

 

(2) [1898] 2 Q. B. 430.

 

(3) (1858) 4 K. & J. 367; 2 De G. & J. 614.

 

(4) (1860) 1 J. & H. 180. [*609]

 

arose within the territorial jurisdiction. And in The Wild Ranger (1) it was held that the owners of a foreign ship found to blame for a collision on the high seas were not entitled to limit their liability under the Act of 1854. It was in view of these decisions that the amending Act of 1862 was passed applying the provision in question to “the owners of any ship, whether British or foreign.” A second class of enactments consists of those altering the laws of navigation with regard to the rule of the road, &c. These enactments have been held to apply only to British ships, and not even to them when meeting a foreign ship: The Zollverein (2); The Saxonia. (3)

 

There is nothing in the language of the Fatal Accidents Acts to extend its provisions to foreigners resident abroad. The Act of 1846 provides that the action shall be brought in the name of the executor or administrator, which suggests that the right of action is limited to the case of British subjects. There is no express provision to meet the case of a foreigner.

 

Hamilton, K.C., in reply. The terms “executor” and “administrator” in the Act represent a relation which is common to all civilised countries, although the terms themselves are no doubt English terms of art. The Fatal Accidents Act is primarily an imposition of a liability upon British subjects, though the consequence may be to enlarge the rights of foreigners.

 

Cur. adv. vult.

 

June 19. KENNEDY J. In this case I am of opinion that the plaintiff is entitled to our judgment. If the deceased seaman, who came to his death through the negligence of the defendants’ servants, had been a British subject, no doubt in my view could have arisen as to the right of the widow to maintain such an action as the present. The action is an action in tort. The defendants, whose servants occasioned the death, are British subjects, and were at the time navigating a British ship, the property of the defendants. Their negligence, and the consequent death of the seaman by drowning, which

 

(1) (1862) Lush. 553.

 

(2) (1856) Swabey, 96.

 

(3) (1862) Lush. 410. [*610]

 

gave rise to the claim, both took place upon the high seas, which, to quote the language of Lord Esher, then Brett L.J., in Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co. (1), is “the common ground of all countries,” and therefore the well-known rule in the case of actions of tort “with regard to the exclusive jurisdiction of a foreign country does not apply.”

 

Does it make any difference that the deceased was not a British subject, but a Norwegian subject? The contention put forward on behalf of the defendants is that the foreign nationality makes all the difference.

 

Now, in considering how this stands it is, I think, not irrelevant to point out that, if the deceased had been only damaged by the negligence of the defendants’ servants and not drowned, he could have prosecuted an action for the negligence in the High Court of Justice, if it be assumed, as it properly must be in order to test the right, that the presence of the defendants in this country, and therefore within the jurisdiction, had prevented any technical difficulty arising as to the service of the proceedings upon them. He could equally have maintained his action if, the circumstances being otherwise the same, the defendants, instead of being British subjects, had been foreigners: see the judgment of Brett L.J. in Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co. (1), and the judgment of Sir Robert Phillimore in The Leon (2), citing the earlier decisions of Dr. Lushington in The Wild Ranger (3) and The Zollverein. (4) If this be so, it would seem to be rather a strange thing that the foreign nationality of the sufferer by another’s negligence, which in no way prejudices his right of action here if he is only hurt and not killed, should form, the circumstances being otherwise identical, an absolute bar to any relief of the sufferer’s family under these Acts. The Acts are Acts the express object of which is to create a liability to an action for damages at the suit of relatives who suffer from the death of the deceased person, wherever the act, neglect, or default

 

(1) (1883) 10 Q. B. D. 521, at p. 537.

 

(2) (1881) 6 P. D. 148.

 

(3) Lush. 553.

 

(4) Swabey, 96. [*611]

 

which causes the death is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof. It is contended, however, by the defendants that such is the law, and the ground upon which it is based is that the Fatal Accidents Acts of 1846 and 1864 must be understood as applicable only to British subjects, and to those persons, whatever be their nationality, who are actually within the territorial jurisdiction of the British Crown. The deceased man, Johann Davidsson, was a Norwegian subject, and, as I understand the statement of counsel, had his home with his family in Norway. The defendants properly rely upon a recent decision of Darling J. in Adam v. British and Foreign Steamship Co. (1), and there is no doubt that we cannot decide in favour of the plaintiff in the present case without disagreeing with Darling J. in regard to that judgment. It becomes, therefore, my duty respectfully to consider the ground upon which it is based, and to explain why I myself differ from his conclusion. The circumstances there were substantially identical with those of this case. The learned judge in his judgment agrees that there can be no doubt that, had the deceased been an English subject, the action would have lain, notwithstanding that the negligence and death had occurred upon the high seas. He decided against the plaintiff on the ground, as he states (2), that “it is a principle of our law that Acts of Parliament do not apply to aliens, at least if they be not even temporarily resident in this country, unless the language of the statute expressly refer to them.” In a later passage of his judgment (3) the proposition is stated in a somewhat modified form: “The intention of the Legislature is to be collected from the statute, and I see no implied, and certainly no express, intention to give to foreigners out of the jurisdiction a right of action which even British subjects had not until the passing of 9 & 10 Vict. c. 93.” In support of the proposition thus laid down, Darling J. cites passages from the judgments of Dr. Lushington in The Zollverein (4), of Jervis C.J. in Jefferys

 

(1) [1898] 2 Q. B. 430.

 

(2) [1898] 2 Q. B. 430, at p. 432.

 

(3) [1898] 2 Q. B. 430, at p. 434.

 

(4) Swabey, 96. [*612]

 

v. Boosey (1), and of Lord Esher in Colquhoun v. Heddon. (2) I venture to think that it is very important, in order to judge rightly of the applicability of these expressions of judicial opinions to other cases, to pay careful attention to the kind of case which in each instance gave occasion for the utterance of them. Before proceeding in this direction I will only mention in passing that in Routledge v. Low (3) Lord Westbury expressed his dissent from the reasoning in Jefferys v. Boosey (1), the sum of which he states to be “the conclusion that a British statute must be considered as legislation for British subjects only, unless there are special grounds for inferring that the statute was intended to have a wider operation,” and that Lord Brougham in his judgment in Jefferys v. Boosey (1) states the law in more guarded terms than those quoted from the judgment of the Chief Justice in expressing his opinion in the House of Lords: “Generally,” he says, “we must assume that the Legislature confines its enactments to its own subjects over whom it has authority, and to whom it owes a duty in return for their obedience. Nothing is more clear than that it may also extend its provisions to foreigners in certain cases, and may without express words make it appear that such is the intendment of those provisions. But the presumption is rather against the extension, and the proof of it is rather upon those who would maintain that such is the meaning of the enactments.” If we now look at the cases in which the judicial dicta in question have been uttered, we find in my opinion that in each of them the statutory enactment under consideration was one which related to matter of a special and exceptional kind. In Jefferys v. Boosey (1) the Act under consideration was the 8 Anne, c. 19, creating the peculiar and special property in literary productions called copyright. In Colquhoun v. Heddon (4) the statute was an Income Tax Act, and the particular question was the construction of the words “in or with any insurance company existing on the 1st November,

 

(1) (1854) 4 H. L. C. 815.

 

(2) (1890) 25 Q. B. D. 129.

 

(3) (1868) L. R. 3 H. L. 100, at p. 119.

 

(4) 25 Q. B. D. 129. [*613]

 

1844.” In The Zollverein (1) the principal statutory provision in view was s. 296 of the Merchant Shipping Act, 1854, which imposed a duty in regard to navigation which had not been imposed by the maritime law, and could not be held in a Court of Admiralty to bind a foreign vessel, and the position is grounded upon the want of equity which there would be in a decision which allowed the foreigner to benefit by a breach of the municipal law to which he could not himself be held amenable. So again in the case of Cope v. Doherty (2), which is cited to us by the defendants’ counsel, the statutory provisions under consideration (the Merchant Shipping Act, 1854, Part IX.) were provisions of a peculiar character in so far as they placed a restriction, limiting liability, upon the general law of nations. Under that general law the owners of a ship injured by the negligent navigation of another are entitled to full damages. But to construe the provisions of the Act of Parliament which created this peculiar restriction as intended to apply to foreigners would be, as Wood V.-C. put it in his judgment, “an attempt” on the part of the British Parliament “to legislate for foreigners by taking away those rights and privileges which they enjoy by the general law which gives full compensation for damages.” And even in this case Knight Bruce L.J. in his judgment on the appeal reserved a question whether the Act might not apply if, instead of both the plaintiff’s and the defendant’s ships being foreign, one had been British: “I assume,” he says (3), “the plaintiffs” (the parties who were claiming the limitation) “would have been right if both the Tuscorora and the Andrew Fisher had been British in ownership and character, all things else being the same, nor do I say whether the plaintiffs would have been right or wrong if one only of the two ships had been of that description, or if the collision had happened in a British river or in a British port.” The law as to the limitation of liability is the same as applied to foreign ships as was afterwards dealt with by the Merchant Shipping Act, 1862 (25 & 26 Vict. c. 63).

 

It seems to me that the Fatal Accidents Acts which are

 

(1) Swabey, 96.

 

(2) 4 K. & J. 367; and on appeal, 2 De G. & J. 614.

 

(3) 2 De G. & J. at p. 621. [*614]

 

under our consideration in the present case embody legislation which is of a very different character. The basis of the claim to which they give statutory authority is negligence causing injury, and that is a wrong which I believe the law of every civilised country treats as an actionable wrong. They create, no doubt, a new cause of action (see per Lord Selborne in Seward v. Vera Cruz (1)), for previously the relatives of the deceased could not in England sue the wrong-doer. The measure of damages is not the same as in an action by the injured man, as the death is an essential constituent of the right of action. None the less, as I venture to think, is it true to say that in substance the purpose and effect of the legislation is to extend the area of reparation for a wrong which civilised nations treat as an actionable wrong. Indeed, the right of redress given is in a sense, according to the decision of Blackburn and Lush JJ. in Read v. Great Eastern Ry. Co. (2), and of the Divisional Court in Griffiths v. Earl of Dudley (3), so far identified with the right of the injured man that if death ensues after he has sued and recovered damages the relatives have no cause of action under this legislation. In Scotland (see Bell’s Principles of the Law of Scotland) and in most of the American States (see Ex parte Gordon (4)) the right of action in the relatives of the deceased person for compensation for his death by the negligence of another is recognised by the law, and I believe, though I cannot quote any authority upon the point, it is also recognised by the law of France and Germany. (5) It appears to me, under all the circumstances and looking at the subject-matter, more reasonable to hold that Parliament did intend to confer the benefit of this legislation upon foreigners as well as upon subjects, and certainly that as against an English wrong-doer the foreigner has a right to maintain his action under the statutes in question. It is not necessary to decide whether – assuming, of course, that no technical difficulty arises as to the service of proceedings – the action could be maintained in the English Courts, the death

 

(1) 10 App. Cas. 59.

 

(2) (1868) L. R. 3 Q. B. 555.

 

(3) (1882) 9 Q. B. D. 357.

 

(4) (1881) 104 Sup. Ct. U. S. 515.

 

(5) [See the German Civil Code, s. 823, and at p. 618 below. – F. P.] [*615]

 

occurring through negligence in a collision upon the high seas, where both parties were foreigners, or where the wrong-doers were foreigners and the sufferers English. My present opinion is that an action could be maintained, but I desire to be understood as not expressing, as it is not necessary to express, a decided opinion upon this point. Here the plaintiff seeks to enforce her claim against an English subject, and I cannot see why she should not do so. If she has not the right we should have the anomaly, as it seems to me, that if a foreigner and an Englishman serving on the same ship were both drowned on the high seas by the same collision negligently caused by an English vessel, the widow of the one could, and the widow of the other could not, obtain by suing the owners of the ship in fault in personam that reparation which our Legislature in these statutes has declared to be a just reparation. Let me add that the view which I take has the weighty authority of Sir Robert Phillimore in The Explorer (1), after argument by Mr. R. G. Williams. The decision in The Explorer (1) was, no doubt, overruled by the Court of Appeal and the House of Lords in Seward v. Vera Cruz (2); but, as I understand it, the judgment of the House of Lords is upon a different point altogether, namely, that the Court of Admiralty had no jurisdiction to entertain an action in rem for loss of life under the Fatal Accidents Act. And it will not be wholly, I think, undeserving of notice that in the case of The Bernina (3), which was litigated in 1886 and 1887 – that is, two years after the decision in Seward v. Vera Cruz (4) – and was carried up to the House of Lords, one of the two successful claimants of damages under the Fatal Accidents Act in an action in personam against the owners of the wrong-doing ship was, as I have ascertained from the Admiralty Registry, one Habiba Toeg, of Baghdad, the mother of Moses Aaron Toeg, a passenger on a ship called the Bushire, who lost his life in a collision caused by the negligence of the defendants’ servants in the course of a voyage, and who, as I presume from his name and from his mother’s

 

(1) L. R. 3 A. & E. 289.

 

(2) 9 P. D. 96; 10 App. Cas. 59.

 

(3) (1887) 12 P. D. 58; (1888) 13 App. Cas. 1.

 

(4) 10 App. Cas. 59. [*616]

 

nationality, was a foreigner. No question of her right to recover on the ground of the nationality either of herself or the deceased was raised by the defendants, and therefore the case is not in any sense a decision in favour of the right. But in a case contested as persistently as this was, it is difficult to suppose that the question would not have been raised had it been one in which the point could be rightly and successfully taken. I am of opinion that judgment must be for the plaintiff.

 

PHILLIMORE J. I agree with the judgment of my brother Kennedy. We have had to determine whether a foreigner, the widow of a foreign seaman killed on the high seas when navigating on board one of the ships of his own country, by a collision between his ship and a British ship, can maintain an action in England against the English owners of the British ship for the negligence of their servants in causing the collision and death.

 

I start with the proposition that if the man had not been killed but only injured, he during his life could have maintained an action for damages, such an action being maintainable by the lex fori and by the leg loci delicti commissi, whether the locus be regarded as English or British territory, or as the high seas over which maritime law, or maritime law as administered in this country, prevails. As regards English or British territory this is common knowledge. That such a tort would also be actionable by the law maritime as administered in this country is shewn by The Ruckers (1), and by other cases which I am about to cite. I have no doubt that other countries administer the law maritime in the same way. For some proof of it I cite the observations in the American cases of The Belfast (2); Ex parte Gordon. (3) This not being an action in rem, it is not necessary to shew that the High Court of Admiralty would, while there was such a separate court, have had jurisdiction; but I have no doubt that it would. The principle of the decision in The Zeta (4), and the reasoning of

 

(1) (1801) 4 Ch. Rob. 73.

 

(2) (1868) 7 Wallace, 624.

 

(3) 104 Sup. Ct. U. S. 515.

 

(4) [1893] A. C. 468. [*617]

 

Lord Herschell, in whose judgment all previous cases are cited, the language of Bruce J. in The Theta (1), and the settled practice of the Admiralty Division to allow in proper cases such actions in rem, have concluded this question, the true key to which might have been found long ago in the language of Dr. Lushington in The Sarah. (2) I have hitherto not considered one possible lex loci, the law of the foreign ship – in this instance that of Norway. If such a tort were not actionable by the law of Norway, it would be necessary to consider which was the law applicable, whether that of the British ship on which the act of negligence was committed, or that of the foreign ship on which the act was felt, or whether, as his death was in the sea by drowning, general maritime law or maritime law as administered in the English Courts should apply. This matter underwent great discussion in Reg. v. Keyn. (3) It will be found treated of in the separate judgments of Lindley J. (4), of Denman J.(5), Brett J.A.(6), Bramwell J.A. (7), Lord Coleridge C.J.(8), and Cockburn C.J.(9) It would be necessary also to consider the case of The Leon. (10) But till it is otherwise pleaded and proved, I take the law of Norway to be the same as our own.

 

Having thus established my first proposition, that an injured man could have maintained during his life an action for damages in such a case as the present, I come to apply the Fatal Accidents Act, 1846. This statute enacts as follows: “Whensoever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” These words are wide

 

(1) [1894] P. 280.

 

(2) (1862) Lush. 549.

 

(3) (1876) 2 Ex. D. 63.

 

(4) 2 Ex. D. at p. 98.

 

(5) 2 Ex. D. at pp. 101-7.

 

(6) 2 Ex. D. at p. 148.

 

(7) 2 Ex. D. at p. 150.

 

(8) 2 Ex. D. at p. 158.

 

(9) 2 Ex. D. at pp. 232-38.

 

(10) 6 P. D. 148. [*618]

 

enough, and no one doubts that they apply to foreigners in England, or to British seamen as against British shipowners on the high seas. The lex fori is English, and, if the tort be held to be done on the British ship, so also is the lex loci. It has not been pleaded that the law of Norway differs in this respect from ours; and I leave, as before, the possible consequences of such a state of things out of consideration. If the lex loci be the law maritime, I am not sure that it must not now be held that the injury done to the relatives of a dead man by killing the bread-winner is to be deemed an actionable tort by the law maritime. The reasoning of the Supreme Court of the United States in the case of Ex parte Gordon (1), and that by the law of Scotland, and, I believe, now the law of many civilised countries, e.g., United States (see Ex parte Gordon (1)), France (see Zachariae, ed. 1878, vol. iv. p. 17), and Germany (as I am informed), this action lies, lead me to think that if at one time this tort was not actionable by the law maritime it may yet well be actionable now.

 

I have still to consider the decision and reasoning of Darling J. in Adam v. British and Foreign Steamship Co. (2) That decision is in point, and if we decide now in favour of the plaintiff we must disagree with it. It rests mainly, I think, upon the principle that Acts of Parliament are to be deemed not to apply to non-resident aliens unless the Court is compelled so to apply them. There are a number of decisions upon the construction of the Merchant Shipping Act, 1854, which set forth this principle as applicable to the construction of statutes imposing a burden upon a foreigner. Perhaps the strongest of these is Cope v. Doherty. (3) But even in this case the reservation of Knight Bruce L.J. (4) would make me pause. On the other hand, where it is a case of giving a remedy to a foreigner, the decision of Dr. Lushington in The Milford (5), and the constant practice which has followed upon that decision, is the other way. This latter position is, I think, sound. Our courts are not only open, but open equally

 

(1) 104 Sup. Ct. U. S. 515.

 

(2) [1898] 2 Q. B. 430.

 

(3) 2 De G. & J. 614.

 

(4) 2 De G. & J. at p. 621.

 

(5) (1858) Swabey, 362. [*619]

 

to foreigners as to British subjects; and foreigners who have the benefit of the English common law have also the benefit of English statutes. At any rate, where a statute brings the English law into harmony with the law of the foreigner, as in the case of The Milford (1), I think this must be so. If an Englishman on board a foreign ship, or a foreigner on board a British ship, is run down by a British ship upon the high seas, it seems almost certain that an action would lie. Are the representatives of a foreigner on board a ship of his own nationality, whose national law would probably give them at least as good a remedy as that given by the Fatal Accidents Act, to be deprived of their right to recover because they must have recourse to statute law instead of to unwritten common law? I think not. Is the law to be different for a Scottish owner of a British ship and the English owner of a British ship? And can it be that as against the owner in this case, if he were a Scotsman, the foreigner could maintain an action because the law of solatium is part of the common law of Scotland, but as against an English owner he cannot because the Fatal Accidents Act is a statutory addition to the common law of England? I think not. There must be judgment for the plaintiff.

 

Judgment for the plaintiff.

 

(1) Swabey, 362.