Service of writ out of the jurisdiction. Address of writ. By whom to be served. CHAPTER XII. PRACTICE (a). NEITHER in the Admiralty (b) nor in the Queen's Bench Division (c) can a personal action for damages, in respect of a collision occurring below low-water mark of the United Kingdom, be brought against a person not domiciled or ordinarily resident within the jurisdiction (d) unless the writ of summons be served within the jurisdiction. In such a case, service of the writ out of the jurisdiction will not be ordered. A writ addressed to a person resident abroad, and intended to be served upon his coming within the jurisdiction, will not be set aside merely because it describes him as having an English address (e). A writ addressed to a foreign corporation without any further description than the style of the corporation will be set aside (ƒ); and a writ served upon the clerk of a firm who in this country act as agents of a foreign corporation, will be set aside (g). In an action in rem the writ of summons was served in the manner provided by Ord. IX. r. 12. No appearance (a) The present chapter is an epitome of practice cases which have arisen in collision actions. For further information upon Admiralty practice generally, the reader is referred to Williams & Bruce, Admiralty Practice, 2nd ed.; Roscoe's Admiralty Law and Practice, 2nd ed. (to be published shortly); Raikes & Kilburn, Admiralty Jurisdiction of the County Courts. (b) In re Smith, 1 P. D. 300; The Vivar, 2 P. D. 29; The Helenslea, 7 P. D. 57. (c) Harris v. Owners of the Franconia, 2 C. P. D. 173. (d) Ord. XI. r. 1, sub-s. (c). (e) The Helenslea, ubi supra. (f) The W. A. Scholten, 13 P. D. 8. (g) The Princesse Clémentine, (1897) P. 18. was entered, and the action came on for judgment by default under Ord. XIII. rr. 12, 13. The writ had been served by the solicitor's clerk, who made the affidavit of service. It was held that the service was valid, and that service by the marshal or his substitute was not necessary (h). act. The enactment, R. S. C., Ord. XIX. r. 28, requires Preliminary preliminary acts to be filed in actions for collision between vessels (i). Each party is required in his preliminary act to state the material facts upon which he founds his case. This enactment applies to actions for loss of life by collision under Lord Campbell's Act; in such an action preliminary acts must be filed (). But no preliminary act is required in an action by the owner of a ship in tow against the owner of her tug for negligent towage, whereby a collision was caused between the tow and a third ship (/). Though in the absence of evidence that it was impossible to file a preliminary act, it was held necessary in an action by the owner of cargo on board a barge against a ship with which the barge was in collision (m). In an action by the owners of cargo against the carrying ship for damage to cargo by collision caused by the fault of the carrying ship, no preliminary act is necessary (n). It has been said that it will be required in an action by the owner of a ship in tow against the owner of the tug for negligent towage whereby a collision occurs between tug and tow (0). The object of the preliminary act was explained by Object of Dr. Lushington in The Vortigern (p). "Preliminary acts preliminary acts. Proof must be secundum allegata. were instituted for two reasons-to get a statement from the parties of the circumstances recenti facto, and to prevent the defendant from shaping his case to meet facts put forward by the plaintiff." Consequently, the Court will not allow a party before (2) or at (7) the hearing to depart from or amend (1) his preliminary act. The information required by the Order must be given fully, any concealment will be viewed by the Court with suspicion (s). The It was a rule of the Admiralty Court that a plaintiff in framing his statement of claim must state the circumstances of the collision, so far as they are known to him (t), with sufficient clearness and accuracy to enable his adversary to know the case which he has to meet (u). Where the plaintiff's allegations have been such as to mislead the defendant upon essential points, it was, before the Judicature Act, held that the plaintiff could not recover. particular acts of negligence which caused the collision must be stated in specific terms. Where the plaintiff alleged that the collision was caused by the starboarding of the helm of the defendant ship, and the fact was that the helm was never starboarded, the plaintiff failed to recover, although it was proved that his adversary's ship was in fact alone to blame (v). But the rule that proof must be secundum allegata is enforced only so far as the allegata are material (), in other words, so far as the non-observance of the rule has made it impossible for the defendant to meet the case brought against him; and since the Judicature Acts the rules as to strictness of pleading have been considerably relaxed. (a) The Miranda, 7 P. D. 185. () As to when they are not (u) The whole subject is exhaustively dealt with in Williams & Bruce, Admiralty Practice, 2nd ed. pp. 338 seq., and see Ord. XIX. r. 4. (v) It was so held before the Judicature Acts: The Ann, Lush. 55; The Marpesia, L. R. 4 P. C. 212; The North American, Sw. 358; The Haswell, Br. & L. 247. See also The Hochung and The Lapwing, 7 App. Cas. 512; and infra, p. 334. (x) The Alice and Rosita, L. R. 2 P. C. 214. of regula alleged. If any of the regulations for preventing collisions at sea Infringement have been infringed, it is the practice, and it would seem tions must be to be necessary (y), for the plaintiff to specify which they specifically are. In the absence of such an allegation in his pleadings, it is conceived that evidence of the infringement would not be admitted (z). But it is not essential that the plaintiff should prove all the allegations made in his statement of claim; if he proves the material part of the case alleged, it will be sufficient (a). An allegation that the defendant ship was alone in fault does not prevent the plaintiff from obtaining a judgment for half his loss upon proof that both ships were in fault (b). The defendant in his defence, besides traversing all the Defence.. allegations of the plaintiff he intends to deny, should state the circumstances of the collision (c). Thus, if the defence is that the plaintiff gave him a foul berth, he must so plead. Before the Judicature Acts it was held that it was not sufficient for him simply to traverse the plaintiff's statements (d). But the plaintiff must prove his case, and where he fails to do so, he will not succeed merely because the defendant has in his defence told a story of the collision which he fails to prove (e). Where the defence is "inevitable accident," it is usual in terms so to plead; but it is conceived that this is not necessary (f). If the defence is "compulsory pilot," it is the practice, (y) The Ebenezer, 2 W. Rob. 206, 211; The Bothnia, Lush. 52, 54. (z) See The New Pelton, (1891) P. 258, 263. In The Perim, Ad. Div. 10th Nov. 1886, Sir J. Hannen allowed an amendment of the statement of claim at the trial by inserting a charge of breach of the "starboard side" rule. Cp. The Lady Ann, 7 Not. of Cas. 364, 370, where under special circumstances the defendant ship was found to blame for a failure to port which was not alleged in the pleadings. (a) The Amalia, Br. & L. 311, 314. See also The Despatch, Lush. 98; The Lady Ann, 7 Not. of Cas. 248. (b) The Aurora and The Robert Ingram, Lush. 327, 329. (c) For the old practice, see The Virgil, 2 W. Rob. 204; The Ironmaster, 6 Jur. N. S. 782. (d) The Why Not, L. R. 2 A. & E. 265. (e) See The East Lothian, Lush. 241. (f) See The E. Z., 33 L. J. Ad. 200; The England, 5 Not. of Cas. 170, 174. Judgment at law whether it can be pleaded in Admiralty. Foreign judgment. and it would seem to be necessary, for the defendant to plead it (g). In an appeal (h) before the Privy Council the appellant will not be allowed to raise, for the first time, the question, not raised in the Court below or referred to in the pleadings, whether the respondent's ship was not also in fault for infringing one of the regulations. Where there is no allegation of contributory negligence, a party who pleads and, in the Court below, relies on fault in the other ship alone, cannot for the first time upon the appeal raise the point of contributory negligence. Prior to the Judicature Acts it was held that a verdict and judgment in an action at law that one of two ships, B., was in fault for the collision, and that the defendants, her owners, were liable to the plaintiffs for the amount of their loss, were no bar to subsequent proceedings in Admiralty in rem against the ship A. by the defendants in the common law action; and that the judgment at law could not be pleaded or given in evidence in the Admiralty action (i). It is difficult to reconcile this decision with the principle that a decision in the presence of the parties upon the merits is res judicata; a principle which seems to apply whether the judgment is at law or in Admiralty proceedings in rem. Where a defendant at law pleaded a decree of the Admiralty Court upon the merits in his favour, it was held that the plea was bad, because it did. not show that the Admiralty Court had jurisdiction (j). As to the effect in the Courts of this country of a (g) For the old practice, see The Canadian, 1 W. Rob. 343; The Northampton, 1 Sp. E. & A. 155, note; The Alhambra, Br. & L. 286; The European, Williams and Bruce, 2nd ed. 352, note (†). (h) The Tasmania, 15 App. Cas. 223; The Pleiades and The Jane, (1891) A. C. 259. (i) The Clarence, 1 Sp. E. & A. 206; but see per Knight-Bruce, L. J., 1 Sp. E. & A. 209, note; and see The Ann and Mary, 2 W. Rob. 189; semble, the case referred to in The Clarence. See also. The Sylph, L. R. 2 A. & E. 24; The Antilope, L. R. 4 A. & E. 33; The Due Checchi, L. R. 4 A. & E. 35, note. (j) Harris v. Willis, 15 C. B. 710. |