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TMI Blog1860 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ment certificate, according to a tariff, for the time employed, 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 "Underwr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter some correspondence, the Government, on the 19th of October, 1857, directed the order to be withdrawn. On the 13th of November, 1857, an action was brought by the Respondents in the Supreme Court at Calcutta against the Appellant. 4. The plaint was 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 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssel The 'Underwriter,' which had theretofore been, and then was, profitably employed by them as a steam-tug between the mouth of the river Hooghly and the port of Calcutta. Secondly, that the Defendant, as Superintendent of marine, was invested with and possessed of the chief 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, addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties are entire strangers to each other, no privity subsisting between them. Have we, then, here alleged a tort, occasioning a loss to the Plaintiffs.? The loss is clearly stated, but it may be damnum sine injuria ; or, if the tort be established, the loss may not be sufficiently '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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint ? That the Defendant, by virtue of his office, had the power to control the pilots on the Bengal pilot service ; but there were no other pilots on the river; that no ships can be safely navigated up or down the river unless it be in charge of a pilot; that the Defendant, with the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, whether the damage is the natural result of the thing done, or whether it is not capable of being attributed to some other cause. In Lumley v. Gye (2 Ell. & Bla. 1216), Erle, J., also remarks on the absence of intention in those cases to cause the damage complained of; and, assuredly, 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, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point, that absence of evidence which can entitle the Defendant to insist on a nonsuit. The issues, as to the ownership of the vessel and the authority of the Defendant over the officers of the Bengal pilot service, have been found for the Plaintiffs ; nor is it now contended that there 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 obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary principles on which men act, and by the acts of the Plaintiffs, as shown in their remonstrance and appeal to Government. We gave, therefore, what, upon the evidence of the average nett earnings of the steamer when in work, would have been its probable earnings if it had been 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 na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in the action, the amount of damages ought not to deprive him of the benefit of an appeal, and prayed that the judgment might be reversed, altered, or varied, and the verdict found for the Respondents in the action set aside, and a verdict, or a nonsuit, entered on his behalf. 7. 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 ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's fraud, the Plaintiff was entitled to recover against the Defendant as for tort. The dictum of Lord Campbell in that case, that if the wrong and consequential loss "are clearly concatenated as cause and effect," an action is maintainable, is not applicable to the circumstances of this case. 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst them, is thereby a wrong doer, and that such order was issued intentionally, authoritatively, and with the design of damaging the Respondents. The judgment, we submit, was well founded upon these grounds. 12. First, the damage was the effect of the act of the Appellant; that is quite clear, and is sufficiently 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Earl of Kinnoull 9 Clk. & Fin. 321, Saxon v. Castle 6 Ad. & Ell. 652, and with regard to the amount of damages, the special damage averred is sufficient to let in the proof of loss of trade given; there is no ground for saying they are excessive. 16. Mr. Macaulay, Q.C., in reply. 17. The Judgment of their Lordships, 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed; the other depending on the special contract between the parties. On the 20th of September, 1857, when the mutiny India was in full vigour, Her Majesty's ship "Belleisle" entered the Hooghly, bringing troops for the public service. The Captain of The "Underwriter," Fox, who was seeking employment, went on board and offered to take 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y responsible for them; in such cases the Government is morally bound to indemnify its agent, and it is hard on such agent when this obligation is not satisfied; but the right to compensation in the party-injured is paramount to this consideration. Neither in the case of damage occasioned by a wrongful act, that is, an act which the law esteems an injury, is malice a necessary ingredient 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 call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the Government, although the consequence would have been directly a total loss of employment by the Plaintiffs; for their right to exercise their calling must be understood only as co-extensive with, and not as overriding, the right of the public or of individuals to deal with them or not, at their pleasure : the right to buy or to refuse to buy is as much to be regarded as the right to sell 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, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le," and he sought advice of the Defendant, accepted the advice which was given in good faith, and could not have been withheld without breach of duty ; and if so, the character of the act cannot be changed by the change of opinion subsequently manifested, or by the censure which it was thought right to inflict upon the agent. This case was disposed of in the Court below in a very learned and elaborate judgment, to which 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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