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Colonial Cases

Francis, Times and Co. v. Carr, 1899

[Sultan's Court, jurisdiction]

Francis, Times and Co. v. Carr

High Court of Justice
Grantham J., June 1899
Source: The Times, 19 June 1899

 

HIGH COURT OF JUSTICE.

QUEEN'S BENCH DIVISION.

Before MR. JUSTICE GRANTHAM.

FRANCIS, TIMES, AND CO. v. CARR.

This action arose out of the seizure of arms by her Majesty's ship Lapwing in the Persian Gulf.  The case has been reported in The Times of June, 6, 7, 8, and 9.  In reply to his Lordship's questions the jury found that the goods were for Muscat only, and not for Persia or India; that a reasonable man  would have believed them to be for Persian or Indian ports; that the plaintiffs shipped the goods bona fide and in the ordinary course of business; that the trade was carried on witrh the knowledge of her Majesty's Government; that the words "Muscat-optional" were added to the port marks before the ship left London; that they were added with the bona fide intention that the goods should be landed at Muscat if desirable; that the plaintiffs were bound by the act of the ship's agents in altering the marks at Port Said, and that there was no evidence that the plaintiffs were notified of the proceedings of the Sultan's Court at Muscat.  His Lordship said that this was a verdict for the plaintiffs for the amount of the value of the goods, on the finding that they were not intended for Persian ports.  Judgment was reserved, pending the consideration of certain questions of law, and these questions came up for argument this morning.

Mr. Joseph Walton, Q.C., and Mr. F. W. Hollams were for the plaintiffs; the Solicitor-General (Sir R. Fimlay, Q.C.) and Mr. R. B. D. Acland for the defendant.

The SOLICITOR-GENERAL submitted that the defendant was entitled to judgment.  In order to maintain an action in the Courts of this country for a tort committed abroad, the act must be wrongful by the law of the country where it was committed and also by the law of this country.  It was established that the act complained of in this case was not wrongful by the law of the country where it was committed.  He cited "Philips v. Eyre" (L.R. 4 Q.B., 225, and 6 Q.B., 1) and "Blad's case" (3 Swanston, 603). The territory of a country included the territorial waters - "Reg. v. Lesley" (29 L.J., M.C., 97).  The Sultan of Muscat had directed the seizure to be legal and in accordance with the law of Muscat, and therefore the act was not a tort according to the law of that country.  An Oriental State like Muscat was not to be treated like the territory of a savage tribe.  He cited Dicey on "The Conflict of Laws," 1896 edition, pp. 659 and 725.  The Sultan was a ruler recognized by European law, his independence being guaranteed by France and England.

(The JUDGE. - The plaintiffs were not represented at the inquiry before the Sultan.)

That was not the defendants fault.  Why did not the plaintiff's representative at Muscat come forward and claim the goods, which were lying three months before the inquiry took place?  The plaintiffs and their agent knew what was going on, and they could not say that the judgment was contrary to natural justice.  He cited "Cornish v. Abington" (4 H. and N., 549). This case did not exactly apply, but it illustrated his submission that the plaintiff's knowledge precluded them from saying that the judgment was bad.  The procedure could hardly be said in this country to be contrary to natural justice, as it was very like that under the Customs''  Laws Consolidation Act, 1876, sect. 207.  He cited Dicey's "Conflict of Laws" (1896 edition, p. 409).On the question of notice he quoted "Reynolds v. Fenton (16 L.J., C. P., 15) and "Bank of Australasia v. Harding" (19 L.J.,, C.P., at p. 354). The clause in the treaty between Great Britain and Muscat, providing that the hearing of civil questions arising between British subjects and other Europeans should be reserved to the Consular Court, had noting to do with this case, as these goods had been seized and it was necessary to inquire whether the seizure was legal.  Notice was not really wanted, as the judgment was a judgment in rem.

Mr. WALTON, for the plaintiffs, said that the decree of the Sultan was not, and did not purport to be, a law at all.  It was an ordinary judgment and did not give an indemnity to any one against the consequences of doing something which at the time it was done was illegal.  It was a mere decision on questions of fact and now law making.  It was not binding on the plaintiffs. It was not a judgment in rem. Such a judgment conferred a title.  Here there was no question as to the property in the goods.  The question was as to the right to seize.  The Sultan's Court had no jurisdiction.  Common justice required that the parties condemned should have an opportunity of being heard (Story on "The Conflict of Laws," 8th edition, p. 815).  The fact that the plaintiffs had an agent in Muscat could not give the Sultan jurisdiction.  But, even if he had jurisdiction, they had no notice of the proceedings.  There was no evidence that they or their agent knew anything about them.  The Sultan could not make laws binding on foreigners within three miles of his shores.  It was a startling proposition that the goods of British subjects passing within three miles of a foreign shore were liable to be taken from them by a law of that foreign State.  There was, in fact, no such law-making power, "Reg. v. Keyn" (2 Ex. D., 63).

The SOLICITOR-GENERAL, in reply, referred to "Reg. v. Lesley" (ubi supra). This was not a passing ship.  It was making for the port of Muscat.  He referred to Hall's "International Law" (pp. 158-160).  The real conversion took place on land in the port of Muscat.

His Lordship said that he would deliver judgment on Monday.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School