TMI Blog1860 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, and the second by special contract. On the 20th of September, 1857, whilst the Indian mutiny was raging in full force, and every exertion of the Indian Government and its officers was being made to face the difficulties in which they were placed, Her Majesty's ship Belleisle, with troops on board, destined for Calcutta, arrived at the mouth of the river Hooghly ; and on the 19th of that month, the Captain of the Underwriter, having understood that she wanted steam, went on board The Belleisle and entered into a negotiation with the Captain of that ship as to the terms upon which she should be taken in tow. The Captain of the Underwriter required at first ₹ 3,000, and then ₹ 2,500, and produced a contract ready prepared, for the Captain of The Belleisle to sign. This, however, he refused to agree to; when The Underwriter left The Belleisle, and carried on shore a telegram from the Captain of The Belleisle to Mr. Beadon, the Secretary to the Government of India, asking to be allowed to employ The Underwriter, but without stating the terms demanded by her Captain. Beadon replied to this communication, authorising Captain Rodd of The Belleisle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in form, an action on the case, and pleaded, in substance, the facts above stated, charging the Appellant with wrongfully and injuriously issuing the order in question. It did not contain any averment of malice ; but damages were claimed for the alleged non-employment of The Underwriter during the period the order was in force. The Appellant pleaded not guilty, and other pleas not material to mention. The cause came on for trial in the Supreme Court at Calcutta on the 3rd of March, 1858, before Sir James W. Colvile, Chief Justice, and Sir Charles M. Jackson, Puisne Judge; when the above facts were in substance proved, all malice on the part of the Appellant being negative. Evidence was given that, during the period the order was in force, The Underwriter had not been engaged in towing vessels in the course of her ordinary business, but on the occasion of the refusal to tow The Belleisle, she afterwards took in tow a private ship drawing nine inches less water than that ship for ₹ 1,600. At the close of the Respondents' case, the Appellant's Counsel applied for a nonsuit on the ground that no cause of action was disclosed ; the Court found a verdict for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and control over all the officers of the Bengal pilot service employed by the East India Company on the said river, for the purpose of piloting vessels thereon to and from the port of Calcutta. Thirdly, that the officers of the Bengal pilot service are the only pilots who upon the river exercise the trade and calling of pilots, and take pilotage charge of inward and outward bound ships; and that, in consequence of the perils of the navigation of the said river, no ship can with safety proceed inwards or outwards thereon, or be duly navigated, except the same be in charge of a competent pilot. It then alleges that the Defendant, contriving and intending to injure the Plaintiffs, and to prevent them from continuing to employ their vessel in the manner before mentioned, and to deprive them of the profits resulting therefrom, wrongfully and injuriously issued and published a certain order, addressed to the officers of the Bengal pilot service, whereby the Defendant, as such Superintendent of marine, strictly prohibited them from allowing the said steam-vessel The 'Underwriter' to take any ship in tow of which they, the officers of the Bengal pilot service, should hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'concatenated with it as cause and effect;' or in other words, may be too remote to be the subject of an action. Now if we turn to the definition of a tort in Broom's Comms., so often cited at the bar, we find that, if not founded on the violation of some special duty, public or private, it may be founded simply on the invasion of a legal right; and the fallacy in some of the arguments used for the Defendant, consisted in the erroneous statement, or in the absence of a clear perception, of the right which the Plaintiffs say the Defendant has invaded. That right is not the right to have a pilot, but the right to employ their vessels in towage; in other words, the right of exercising their lawful trade or calling without undue hindrance or obstruction from others, and surely it cannot be contended that this is not one of the rights which the common law recognizes and protects ! The contest between the House of Commons and the Crown, in the times of the Tudors and the Stuarts, which resulted in the Statute of Monopolies, and all the learned arguments in the great case of the Monopolies, in the reign of Charles the Second (10 State Trials' 312), assume the existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of preventing The 'Underwriter's employment, issued an order forbidding the pilots from allowing that steamer to take any vessel in tow of which they should have charge ; that the order was obeyed and remained in force a certain time, during which the Plaintiffs were, by reason of the order, prevented from employing their steamer as a tug, and so hindered in their trade. It may be said that it is not the pilot but the Master whose business it is to engage towage, and, therefore, that the employment of the Plaintiffs' vessel was not prevented by an order addressed to the pilot. But if this objection arise in arrest of judgment, the fair intendment from the third statement in the inducement is, we think, that the order being operative upon, and obeyed by, the pilot, was necessarily operative upon the Master, because he, though not under a legal obligation to take a pilot, could not safely navigate his vessel without one, and could not get a pilot other than one of the Bengal service. Therefore, upon the plaint, we must assume that the Defendant, intending to injure the Plaintiffs in their trade, and having a power over the pilots of the port which he could effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the Defendant in one of those cases may well have libelled the actress, and the Defendant in the other may well have beaten the actor, without intending to injure the manager ; and, therefore, though some doubt has been thrown on their authority by Lumley v. Gye, those cases may be good law, and yet not govern this case. For it is difficult to conceive a more necessary connection, as cause and effect, than that which here exists between the damage done to the Plaintiffs and the Defendant's act. The order, moreover, is insensible, if it is supposed to have been issued with any intention but that of causing the damage ; the damage followed upon it, and there is no other assignable cause which will account for that damage. Then it is urged that the intervention of the pilot between Captain Rogers and the Master of the ship, and of both pilot and Master between Captain Rogers and the Plaintiffs, makes the damage too remote. But we are not dealing with a case like that of Ward v. Weeks (7, Bingh. 211), in which A. used slanderous words to B., which B. repeated to C., and thereby caused the damage to the Plaintiff; and, it was, therefore, held, that the Plaintiff could not sue A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was not evidence to support that finding. The other material statements in the inducements were not traversed, and we must, therefore, take it to be admitted, on the pleadings, that there were no pilots but those of the Bengal pilot service, and that no ship can be safely navigated in the Hooghly without a pilot. On this record, therefore, we have not to consider whether the existence of five or six licensed pilots would in any degree affect the right to maintain the action ; and the admission seems also to exclude the hypothesis that the Plaintiffs were not hindered in their trade, because Masters of vessels might have taken their tug and gone up or down the river without a pilot. The question remains, whether the Plaintiffs have proved all they were bound to prove under the plea of not guilty. They have proved that the Defendant issued the order in question ; that he issued it with the avowed object of punishing the Plaintiffs for their refusal to comply with certain conditions which he had no right to impose upon them. They have proved its continuance for a certain time. They have put in the final orders of Government on this proceeding, which prove that, in issuing the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to work during its period of enforced idleness. We continue to think that the evidence given of the refusal to unmoor The 'Daniel Webster,' though objected to at the time, was properly received; but we must observe, that the proper mode of persevering in the objection would have been by moving for a new trial, on the ground of the improper reception of evidence, and that the point is not regularly raised by this rule. It may, however, be open to the Defendant to insist, in arrest of judgment, that the Special damage is not alleged with sufficient particularity ; that, as in a certain well-known class of action for slander, the names of the persons who would, but for the order, have employed the Plaintiff's steamer, ought to have been stated. But we would observe, that the question here is, not whether customers who have been wont regularly to deal at a particular shop, and whose names are necessarily known to the person who keeps that shop, have been driven from that shop ; we have to deal with the case of a steamer plying for hire in a port to which ships from all quarters of the world resort, many of them for the first time. Again : the notorious existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. W. Field for the Petitioner, cited Spooner v. Juddoo 4 Moore's Ind. App. Cases, 257. 8. [11th July, 1859 Present: Members of the Judicial Committee,--The Right Hon. Lord Kings-down, the Bight Hon. Thomas Erskine, the Right Hon. Dr. Lushington, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir Lawrence Peel.] Their Lordships gave leave to appeal on security being given to the amount of 100, for costs. 9. The appeal now came on for hearing. 10. This is a case of first impression, arising from a prohibition issued by a public servant in the proper discharge of his duty, and without malice, to the officers of the Bengal pilot service employed by the Government on the river Hooghly, not to use the Respondent's steam-tug ; or, in other words, not to deal with the Respondents in their trade or calling of steam-tug owners; and the first question is, whether the action is, in the circumstances, maintainable. To sustain such an action, there must have been either a violation by the Appellant of a legal right, or a wrongful act done by him in violation of a legal right or private duty, productive of damage to the Respondents. We contend there is neither of these re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The case of the Taylors, c., of Ipswich 11 Co. Rep. 53. and The case of the Monopolies 11 Co. Rep. 146. only assume the right of the subject to be protected in the exercise of his lawful trade, which we don't deny ; but that is very different from an assumed right to be employed in such trade. Langridge v. Levy 2 Mee. Wels. 519, and 4 Mee. Wels. 337. was a case of false representations and fraud. In Winterbottom v. Wright 10 Mee. Wels. 115., Baron Alderson, referring to that case, refused to cary the principle of that decision further. So in Howard v. Shepherd 11 East's Rep. 571. The cases of Carrington v. Taylor 9 Com. Ben. Rep. 297, 322., and Keeble v. Hickeringill 11 East's Rep. 574. are, we submit, misapplied by the Judges in the Court below. In those cases there was a disturbance of the enjoyment of a legal right; there is no legal right at all here. In Sutton v. Clarfe 6 Taunt 29., also cited in the Court below, it was held that if a person in the exercise of a public function without emolument which he is compellable to execute, acts without malice, and according to the best of his skill and diligence, and upon the best information he can obtain, does a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciently averred. Now, the great principle of law is, that every man must be considered to contemplate the probable consequences of his own act, Townsend v. Walker 9 East, 296, Ferguson v. The Earl of Kinnoull 9 Clk. Fin. 251, or the act of his agent. Jarmain v. Hooper 6 Man. Gr. 827, Bowles v. Senior 15 Law J. Q. B. 231, Childers v. Wooller 29 Law J. Q. B. 129. The damage here was immediate, and, therefore, actionable; it is not, as in the case of a slander, Vicars v. Wileocks 2 Smith's L. C. 300; 8 East, 1, too remote. In Parkhurst v. Foster 1 Ld. Raym. 480, Lord Holt says, If a man does an unlawful act, he shall be answerable for the consequences of it, especially where the act is done with intent that consequential damage shall be done. 13. Secondly, the damage was done to the legal right of the Respondents to prosecute a lawful trade, namely, the hire and use of their steam-tug; and this is prima facie actionable. He that hinders another in his trade or livelihood is liable to an action, else slander affecting a man's trade would not be actionable. Keeble v. Hickeringill 11 East. 575-6. And, though no action may lie for a public nuisance, yet if a private injur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , prepared by Sir John T. Coleridge, was now delivered by 18. The Right Hon. Dr. Lushington (30th July, 1860):- 19. This was an appeal from the Supreme Court of Calcutta. The Respondents were the Plaintiffs in that Court, and their plaint recited that they, before the committing of the grievances complained of, had been, and then were, he owners of a steam-tug called The Underwriter employed for hire in towing ships to and from the port of Calcutta, and in the receipt of large profits from such employment; and that the Defendant was an officer in the public service of the East India Company, having the name and style of the Superintendent of marine, and that, as such, he was invested with the chief authority and control over all the officers of the Bengal pilot service employed by the Company on the Hooghly river for the purpose of piloting vessels thereon to and from the said port; and that the said officers of the Bengal pilot service were the only pilots who, upon the said river, exercise the calling of pilots, and take pilotage charge of inward and outward bound ships; and that in consequence of the perils of the navigation, no ship can with safety proceed inwards or ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake her up. At this time a Bengal pilot was in charge of her. Fox declined to take her on the terms of the Government certificate, and asked a much larger sum, first ₹ 3,000, and finally ₹ 2,500. The Captain, not choosing to incur the responsibility of agreeing to this demand, telegraphed once and again to Beadon, the Secretary to the Government of India, stating, on the second occasion, the demand, that his pilot required a powerful tug, and asked what amount he might offer. On the receipt of this second application, Mr. Beadon communicated to the Defendant, with a letter stating what had passed, and concluding with these words:-- What had better be done? The Defendant immediately went to Beadon, and gave him his opinion that the charge was exorbitant; that it was Beadon's duty to take steps to prevent such charges being made for ships coming in with troops ; that the rate of charge might, otherwise increase from day to day with the increasing necessities of the Government; and added, that if he left the matter to him, he would proceed to The Bankshall (the place of rendezvous for the Bengal pilots) and direct one of the officers to see the owners of the tug, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edient to the maintenance of the action: an imprisonment of the person, a battery, a trespass on land, are instances, and only instances, in which the act may be quite innocent, even laudable, as to the intention of the doer, and yet, if any damage, even in legal contemplation, be the consequence, an action will lie. 22. But the foundation of every action of tort, apart from the question of malice, is an act wrongful, and which may be qualified legally as an injury. This position is not contravened in the very able and learned judgment of the Court below; indeed, it is assumed as the principle of decision, and the wrongful, act relief on is stated to be, the invasion of the right of the Plaintiffs to employ their vessels in towage ; in other words, the right of exercising their lawful trade or calling, without undue hindrance or obstruction from others. No doubt an act which, prima facie, would appear to be innocent and rightful, may become tortuous if it invades the right of a third person. A familiar instance is, the erection on one's own land of anything which obstructs the light of a neighbour's house : prima facie, it is lawful to erect what one pleases on one' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to refuse to sell. 24. But the prohibition certainly goes beyond this: it forbids the officers of the pilot service from allowing The Underwriter to take any ship in tow of which they have pilotage charge ; and the question is, whether this difference in extent makes it, as against the Plaintiffs, wrongful. Their Lordships are of opinion that it does not. For the interests of the community, and without any legal obligation, the Government has organized a body of pilots; it does not appear that any law forbids the employment of a pilot who is not of that body, and, indeed, it was proved that there were other pilots exercising their calling in the port of Calcutta on whom the Government prohibition would have had no effect. The Government certainly, as any other master, may lawfully restrict its own servants as to those whom they shall employ under them, or co-operate with in performing the services for the due performance of which they are enrolled and taken into its service. Supposing it had been believed, that The Underwriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been lawfully forbidden to employ her until these object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships have given the full consideration it deserves, though they cannot accede to all the conclusions of that judgment. The appeal has been very ably argued at the Bar ; but their Lordships have not thought it necessary to review and distinguish the many cases cited, either in the judgment of the Court below or in the argument. It seems to them that when the legal principles to which they have adverted are applied to the facts of this case, its decision turns on a very plain and elementary point: it is essential to an action in tort that the act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however, directly, do him harm in his interests, is not enough. Cases are of daily occurrence in which the lawful exercise of a right operates to the detriment of another, necessarily and directly without being actionable. The present case appears to their Lordships to be no more, and they will, therefore, humbly advise Her Majesty that the judgment of the Court below ought to be reversed, and that the costs of the appeal should be borne by the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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