CHAPTER XII. PRACTICE. Service of writ out of the jurisdiction. Address of writ. By whom to be served. NEITHER in the Admiralty (a) nor in the Queen's Bench Division (b) 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 (c), 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 (d). A writ addressed to a foreign corporation without any further description than the style of the corporation, will be set aside (e). In an action in rem, the writ of summons was served in the manner provided by Ord. IX. r. 12. No appearance 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 (f). (a) In re Smith, 1 P. D. 300; The Vivar, 2 P. D. 29; The Helenslea, 7 P. D. 57. (b) Harris v. Owners of the Franconia, 2 C. P. D. 173. Ord. XI. r. 1, sub-s. (c). (d) The Helenslea, ubi supra. (e) The W. A. Scholten, 13 P. D. 8. (f) The Solis, 10 P. D. 62. Ord. XIX. r. 28, of the Rules of the Supreme Court, 1883, is as follows: acts. "In actions in any Division for damage by collision (g) Preliminary between vessels, unless the Court or a judge shall otherwise order, the solicitor for the plaintiff shall, within seven days after the commencement of the action, and the solicitor for the defendant shall, within seven days after appearance and before any pleading is delivered, file with the registrar, master, or other proper officer, as the case may be, a document, to be called a preliminary act, which shall be sealed up, and shall not be opened until ordered by the Court or a judge, and which shall contain a statement of the following particulars:: (a) The names of the vessels which came into collision, and the names of their masters; (b) The time of the collision; (c) The place of the collision; (d) The direction and force of the wind; (e) The state of the weather; (f) The state and force of the tide; (g) The course and speed of the vessel when the other was first seen; (h) The lights (if any) carried by her; (i) The distance and bearing of the other vessel when first seen (h); (k) The lights (if any) of the other vessel which were first seen; (1) Whether any lights of the other vessel, other than those first seen, came into view before the collision; (m) What measures were taken, and when, to avoid the collision; (n) The parts of each vessel which first came into contact. The Court or a judge may order the preliminary act to be opened, and the evidence to be taken thereon without its being necessary to deliver any pleadings; but in such case, (g) Under the former practice preliminary acts were required in "all cases of damage." Ad. Ct. Rules, 1859, rr. 62—64. (h) In The Godiva, 11 P. D. 20, this was insufficiently stated. Object of preliminary acts. if either party intends to rely on the defence of compulsory pilotage, he may do so, and shall give notice thereof in writing to the other party within two days from the opening of the preliminary act." 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 (k). 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 (1). 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 Dr. Lushington in The Vortigern (p). "Preliminary acts 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 (g) or at (r) the hearing to depart from or amend (q) his preliminary act. (k) Webster v. Manchester, Sheffield, and Lincolnshire Rail. Co., W. N. 1884, p. 1. (1) Armstrong v. Gaselee, 22 Q. B. D. 250. (m) Secretary of State for India v. Hewett, 6 Asp. M. C. 384. There had been an action in Admiralty between the barge and the ship. This is the case referred to by Huddleston, B., in Armstrong v. (n) The John Boyne, 3 Asp. M. L. C. 341. (0) Per Wills, J., in Armstrong v. Gaselee, 22 Q. B. D. 250, 253. (p) Sw. 518. (9) The Miranda, 7 P. D. 185. (r) The Frankland, L. R. 3 A. & E. 511; The Vortigern, Sw. 518. secundum It was a rule of the Admiralty Court, and the rule is Proof must be still enforced by the Admiralty Division, that a plaintiff allegata. in framing his statement of claim must state the circumstances of the collision, so far as they are known to him (s), with sufficient clearness and accuracy to enable his adversary to know the case which he has to meet (t). Where the plaintiff's allegations have been such as to mislead the defendant upon essential points, it was, before the Judicature Act, and doubtless would still be, held that the plaintiff is not entitled to recover. The particular acts of negligence which caused the collision must be stated in specific terms. If the plaintiff alleges that the collision was caused by the starboarding of the helm of the defendant ship, and the proof be that the helm was never starboarded, the plaintiff would probably fail to recover, although it is proved that his adversary's ship was in fact alone to blame (u). But the rule that proof must be secundum allegata is enforced only so far as the allegata are material (x); 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. If any of the Regulations for Preventing Collisions at Sea Infringement of Regulahave 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 alleged. 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 are. (s) As to when they are not known, see The Schwalbe, Sw. 521; The England, 5 Not. of Ca. 174. (t) The whole subject is exhaustively dealt with in Williams & Bruce, Admiralty Practice, 2nd ed. pp. 338 seq., and see Ord. XIX. r. 4. (u) 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 Lap- (x) The Alice and Rosita, L. R. (y) The Ebenezer, 2 W. Rob. 206, 211; The Bothnia, Lush. 52, 54. (z) 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 Ca. 364, 370, where under special Defence. Judgment at it can be pleaded in Admiralty. 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 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, and it would seem to be necessary, for the defendant to plead it (g). Prior to the Judicature Acts it was held that a verdict law: whether 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 circumstances the defendant ship (a) The Amalia, Br. & L. 311, (b) The Aurora and The Robert Ingram, Lush. 327, 329. (c) For the old practice, see The Virgil, 2 W. Rob. 204; The Iron master, 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 Ca. 170, 174. (g) For the old practice, see The Canadian, 1 W. Rob. 343; The Northampton, 1 Sp. E. & A. 155, n. ; The Alhambra, Br. & L. 286; The European, Williams and Bruce, 2nd ed. 352, note (t). |