In 1942, the Brabo suffered a collision off the entrance to the River Tyne, UK, and was towed into the harbour without consultation with its owners due to the war. It sank in deep water just inside the piers. The Brabo was a small Belgian steamship then under charter to the British Government. The local harbour authority, the Tyne Improvement Commissioners (the plaintiffs), incurred expenditure in exercise of its statutory powers of clearing the obstruction caused by the wreck of the Brabo and its cargo.

In 1946, the plaintiffs sued Armement Anversois SA (the first defendants), the Minister of Supply (the second defendant) and the British Iron & Steel Corp Ltd (the third defendants). The plaintiffs claimed wreck removal expenses of around GBP 250,000 under s 42 of the plaintiffs' Private Act of 1890. The first defendants were registered in Belgium and resident there. They owned the Brabo, which carried cargo owned by the second and third defendants, who were both within UK jurisdiction.

An attempt to serve a writ within jurisdiction on the first defendants was set aside by Pilcher J (Tyne Improvement Comrs v Armement Anversois SA (1946) 79 Ll L Rep 373), who subsequently granted leave to serve abroad under RSC O 11 r 1(g). The first defendants were unsuccessful in setting aside that ex parte order: Tyne Improvement Comrs v Armement Anversois SA (1947) 80 Ll L Rep 190. Pilcher J held that the first defendants were a 'necessary or proper party' within the meaning of O 11 r 1(g), as co-defendants to the plaintiffs' action, and that that action was 'properly brought' against the second and third defendants within the meaning of that rule. The first defendants appealed.

Held: Appeal allowed.

The test for O 11 r 1(g) is whether the person sought to be served abroad is a necessary or a proper party to an action properly brought against a person duly served within jurisdiction.

The first defendant would have been a 'proper' party: Massey v Heynes & Co and Schenker & Co (1888) 21 QBD 330 (CA) 338. Given that the plaintiffs' claims against ship and cargo interests arose out of the same set of circumstances, the shipowners and cargo owners would have been properly joined as co-defendants under O 16 r 4.

The phrase 'properly brought' inures to the protection 'of the person out of the jurisdiction whom it is proposed to serve with process': John Russell & Co Ltd v Cayzer, Irvine & Co Ltd [1916] 2 AC 298 (HL) (John Russell) 304. See also The Hagen [1908] P 189 (CA) 201. If the plaintiffs' claim were based upon allegations of fact which would, if established, entitle them to succeed in the action, the action ought to be treated as properly brought. But when all relevant facts are undisputed, and on the correct view of the law those facts do not entitle the plaintiffs to succeed in their action, then the action is not 'properly brought', and service out of the jurisdiction upon another defendant cannot be allowed.

The plaintiffs' action was not properly brought. The plaintiffs could not succeed against the second and third defendants due to Crown privilege. Legislation did not deprive the Crown or its agents of such privilege: see s 42 of the plaintiffs' Act of 1890; Pearson v Assessment Committee of the Holborn Union [1893] 1 QB 389 (Div Ct); section 3(1) of the plaintiffs' Act of 1934 incorporating s 99 of the Harbours, Docks, and Piers Clauses Act 1847; Ministry of Supply Act 1939. Both defendants were agents of the Crown in respect of cargo which were Crown property: Ministry of Supply Act 1939 ss 2(1)(a), 2(3), 19, and Sch pt 2; War Department Stores Act 1867 s 20. Legislation did not turn the second defendant into a statutory 'owner' that enabled the plaintiffs to recover wreck removal expenses from the 'owner'. Minister of Supply v British Thomson-Houston Co Ltd [1943] KB 478 (CA) (British Thomson-Houston) was considered. The second defendant was no more liable to a claim under the statute upon which the plaintiffs sue than he would be for a claim in salvage. Salvors of Crown property cannot claim salvage: AR Kennedy, Kennedy on the Law of Civil Salvage (3rd edn, Stevens and Sons 1936) 77; Young v SS Scotia [1903] AC 501 (PC) 504.

The plaintiffs argued that the second and third defendants might waive immunity. This was rejected for being contrary to John Russell. Even if a claim could accrue against the second and third defendants, the word 'owner' in s 42 of the plaintiffs' Act of 1890 carried no statutory extension of its meaning. The broad but artificial meaning given to the words 'owner in relation to goods' by s 3 of the plaintiffs' Act of 1890 was only for the collection of 'harbour rates'. It did not apply to claims under s 42 against the owners of wrecked vessels or their cargoes. Whether the third defendant was the consignee of some cargo was irrelevant. The position might be different had the plaintiffs' claim against the second defendant based upon contract.

The Court would be careful before allowing the writ to be served on the first defendant. This might cause an entirely innocent shipowner to bear tremendous financial liability. This joint judgment of the Court was affirmed on further appeal: Tyne Improvement Comrs v Armement Anversois SA (The Brabo) [1949] AC 216 (HL).

In a separate rider to the judgment, Scott LJ commented on British legislation about wreck removal. The sinking of the Brabo in the plaintiffs' harbour was not caused by any tortious act of its owners towards the plaintiffs. Since the shipowners were not guilty of any tort towards the plaintiffs, likewise for the cargo owners. The plaintiffs did nothing wrong: it was their duty to clear the port of obstructions, they had to meet an unexpected and tremendous expense; and if they cannot recover it from any third party that means a great hardship for them. Parliament should reconsider statutory liability for wreck removal. Such expenditure might be borne by the Government instead.

Limitation of shipowners' liability should also be considered. The basic rule on the Continent making the value of the ship at the end of the voyage the limit of its owner's liability; whereas the UK in the middle of last century converted that measure into a sterling limit per ton of registered tonnage, based on the then average value of ships. On the Continent the cost of wreck removal, when recoverable from the owner of the ship, has always been treated as one of the marine liabilities of the voyage and as such has been brought within the Continental system of limitation of shipowners' liability. In the UK that has never been the case. The right of recovery was only obtained from Parliament by the harbour authorities gradually, and the shipowners were never given the right to limit that liability. Under the Continental system if there was a total loss before the end of the voyage its owner's liabilities were at an end.

In 1926, as the result of the efforts of the Comité Maritime International (the unofficial international body which prepared the draft Conventions on Collisions and Salvage which were passed into law by the UK Parliament in 1911), an international Convention upon the limitation of shipowners' liability was passed at Brussels. Its object was to bring about worldwide uniformity in the law of the sea relating to limitation of shipowners' liability. That Convention included wreck removal as one of the heads of liability to be limited. The UK Government was then prepared to ratify the Convention subject only to two exceptions: one was about damage to the property of docks and harbour authorities (for which Parliament had in 1906 granted a certain limitation); and the other was a reservation of the right to exclude liability for wreck removal altogether, or alternatively only to ratify on condition of reciprocity on that head. On the other hand, Belgium, in 1929, passed the whole Convention into law, thus including limitation for wreck removal; and under the Convention the limit of liability was still the value of the ship at the end of the voyage, although the British limit of GBP 8 per ton was added as a maximum with another GBP 8 in case of life claims. Thus, under Belgian law the first defendants would not be liable for wreck removal expenses, if it had sunk in a Belgian port, or if the present proceedings were taken in Belgium.

The Comité Maritime International is holding a conference in September 1947, to reconsider the Limitation Convention with a view to its legislative adoption together with two other Conventions already passed by Diplomatic Conferences, ratified by many countries and passed into law by some - one on maritime mortgages and liens - the latter subject affecting the Limitation Convention, and the other on the present immunity of State-owned ships from legal proceedings. It will be helpful to the attainment of uniformity in maritime law if the conference then has the benefit of the views of those interests in the UK.

Bucknill LJ agreed with Scott LJ in thinking that the statute which imposes an unlimited liability on the innocent owner of a sunken ship (ie an owner who is blameless for the sinking of the ship) to repay the cost of raising it, deserves legislative reconsideration. International unification of law as to the liability of a shipowner for the cost of raising its ship is desirable. Efforts should be made to arrange agreement about that among all maritime countries.

Wrottesley LJ thought that it was desirable that the law relating to wreck removal expenses be uniform in all countries with shipping interests.