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CASES

SELECTED PROM THOSK

HEARD AND DETERMINED IN THE

VICE-ADMIRALTY COURT

FOR

LOWER CANADA.

RELATING CHIEFLY TO THE

OR INVOLVING

OF FREQUENT OCCURRENCE IN THE TRADE AND NAVIGATION
OF THE RIVER AND GULF OF ST. LAWRENCE.

FREOGDEO BV

THE RULES AND REGULATIONS ESTABLISHED UNDER THE
AUTHORITY OF THE IMPERIAL PARLIAMENT.

WITH

AN APPENDIX

CONTAINING THE ORIGINAL COMMISSION CONSTITUTING THE COURT,
AND OTHER DOCUMENTS RELATING TO THE SAME.

EDITED BY

GEORGE OKILL STUART, ESQ., Q.C

LONDON:
V. & R. STEVENS, AND G. S.^^^^^f^'^^'""'

Jfi, BELL YARD, LINCOLN'S /^N.
ILaiu Boohsrllcrs anti ^tibltsl
1858.

LO'.DON :
BIIADBVBT AND EVAKS, PU1NTKK8, WIllTErRIARS.

A-

PREFACPl

Shortly after the Treaty of Paris of the 10th of
February, 1763, by which Canada was ceded by the
Crown of France to, that of Great Britain, His
Majesty King George the Third issued a Commission
under the Great Seal of the High Court of Admiralty
of England, establishing a Court of Vice-Admiralty
for the province of Quebec (now called the province
of Canada), to have jurisdiction therein according to
the civil and maritime laws, and ancient customs of
His Majesty's High Court of Admiralty ; and this
Court, as will appear by the documents in the
Appendix, has been continued by repeated Commis-
sions down to the present time, so far as Lower
Canada is concerned.

The records of the Court up to the time of the
passing of the Imperial Act, 2 Will. 4, c. 51, to regu-
late the practice in the Vice-Admiralty Courts, and
to obviate doubts as to their jurisdiction, afford little

vi rUEFACE.

information as to the extent and nature of the cases
brought before it, or of the principles of jurisprudence
established by thein. Many important revenue cases
were decided by the Court, in the time of Mr. Kerr,
of which it is to be regretted that no reports exist.
Two interesting judgments of that gentleman Avill be
found in the Appendix.

Since the Court was established the trade by the
St. Lawrence has increased from an average yearly
tonnage of 5496 tons to that of 018,920 tons ; and
its growing importance, and the belief that this must
render the jurisprudence and practice of the Court
an object of interest, as well to the profession as to
those engaged in the commerce and navigation of the
river and gulf, has been the motive Avhich has led vo
the publication of the present volume.

London,

8th March, 1858,

TABLE OF CASES REPORTED.

Agnes— Taylor
Phcobe— Raltray
John and Mary— Marshall
Newham— Robson
Clansman— Scott .
Friends— Duncan

Friends— Duncan .

Cumberland— Tickle .

Sarah — Sinclair

Sarah — Sinclair .

Sarah— Sinclair

Venus — Butters .

Papineau— Maxwell

Sophia — Easton .

Adventure — Peverley

Adventure— Peverley .

Royal William— Fennel .

Friends — Duncan

Friends— Duncan .

Lockwoods — Lawton .
Atlantic — Hardenbrook
Recovery— Simkin
Tweed — Robertson
Isabella— Miller .
Lydia — IJrunton
Brunswick— TuUy
London — Dodson ,
Nelson Village — Power
Scotia — Risk .
Toronto— CoUinson
Silleiy — Hunter
Factor — Price
General Hewitt— Sellers
Maiy and Dorothy— Teasdalc

. Mariner's Wages

. Jurisdiction

. Table of Fees

. Practice .

. Practice

. Attachment

. Practice
. Collision .
. Attachment .
. Mariner's Wages
. Personal Damage;.
. Mariner's Wages
. Mariner's Wages .
. Evidence ,
. Practice
. Pilotage .
. Salvage
Jurisdiction
Personal Damage .
Mariner's Wages
Mariner's Wages
Mariner's Wages

Mariner's Wages .

Attachment

Mariner's Contract

Table of J^ees

Collision .

Mariner's Contract

Personal Damage

Salvage

Mariner's Wages

Mariner's Wages .

Possession .

I'AOK

. 53

. 59
. 04
. 70
71
. 72
. 73
. 75
. 86
. 87
. 89
, 92
94
96
99
101
107
112
118
123
125
128
132
134
136
139
140
150
160
170
132
183
186
187

via

TAHLK OI' CASKS.

Lord John Rusacll — Young
Delta — Murray .
Romulus — Gallender
Aid— Nuthall .
Josepha — Molntyre
Lady Aylmer — Nadeau
Captain Ross — Morton .
Sophia — Weatherall .
Mary Campbell — Simons
Leonidas — Arnold
Miramichi —Grieve
Dahlia — Orossard
Dumfriesshire — Gowan .
Lady Seaton — Talbot .
Dromobair — Pyne .
Independence — McCappine
Robert and Anne — Richmond
Jane — Custanoe .
Lady Seaton — Spencer .
John Munn — Richardson
Mary Jane — Trescowthick
Hercyna — O'Brien
Bytown — Humphrey
Isabella — Dixon .
Crescent — Tate
Rowland Hill— Ryan .
Sarah Ann — Hocker
Roslin Castle — Saddler
Glenoaim — Crawford
Niagara — Taylor
Elizabeth — Nowell .
New York Packet — Marshead
Electric — Molton .
Inga — Eilertsen .
John Counter — Miller .
Mary Bannatyne — Ferguson
Vai'una — Davies
Thetis — Watkinson .
Camillus— Baird .
Coldstream — Hall

Collision
Attachment
Jurisdiction .
Practice .
Practice
Jurisdiction
Mariner's Wages
Mariner's Wages
Collision
Collision .
Collision
Collision .
Practice
Practice .
Practice
Praotioe
Salvage

Wreck- Wages .
Mariner's Contract
Collision .
Material Men
Maritime Lien
Collision
Wreck-Wages
Collision
Collision .
Collision
Collision
Collision
Collision
Collision
Collision ,
Salvage
Collision
Collision
Collision .
Mariner's Contract
Costs

Jurisdiction .
Personal Damage

I'AOK

190
207
208
210
212
213
216
219
222
226
237
242
245
247
247
247
253
256
260
265
267
274
278
281
289
289
294
303
303
, 308
308
325
330
. 335
344
350
357
, 363
, 383
, 386

EULES AND KEGIJLATIONS

Made in Pursuance of an Act of Parliament passed in the
Second Year of the Reign of His Majesty, King William
the Fourth, touching the Practice to be obfierved in Suits
and Proceedings in the several Courts of Vice-Admiralty
abroad, and established by the King's Order in Council.

Whereas by an Act passed in the Second Year of His
present Majesty King William IV., entitled " An Act to
regulate the Practice and the Fees in the Vice-Admiralty
Courts abroad," &c., His Majesty is empowered to make
such Bules, Eegulations, and Fees, and to alter them
from time to time, as may be found expedient, in the
Vice- Admiralty Courts abroad ; and whereas, by an Order
in Coimcil of the 23rd of June, 1832, His Majesty has
been pleased to authorize us to carry into effect the fol-
lowing Rules, Regulations, and Tables of Fees, to be
taken and received by the respective Officers of the said
Courts, We send you herewith a Book containing Copy
of the aforesaid Act, Order in Council, Table of Fees,
and the Regulations of Practice to be observed in the
Vice- Admiralty Court under your jurisdiction; and hereby
desire and direct, that the Judge, Officers, and Frac-

RIILKS AND IlEOULATIONB.

titioners in the said Court be governed by the same
nccovdiiigly.

J. R. G. CfllAHAM,

T. M. Haudy,

G. H. L. Dundas,

S. John Brooke Petciikli-,

G. Bauuingxon,

H. Labouciiere.

To the Vice-Admiral, and the respective
Officers and Practitioners of the Vice-
Admiralty Court of Quebec,

By Command of their Lordships,

John Barrow.

His Majesty
empowered to
make regula-
tions and es-
tablish fees in
the Vice-Admi-
ralty Courts
abroad.

ANNO SECUNDO GULIELMI IV. REGIS.

CAP. LI.

An Act to regulate the Practice and the Fees in the Vice-
Admiralty Courts abroad, and to obviate Doubts as to their
Jurisdiction. — 23d June, 1833.

Whereas it is expedient that provision should be made
for the regulation of the practice to be observed in the
suits and proceedings in the Courts of Vice-Admiralty in
His Majesty's possessions abroad, and for the establish-
ment of fees to be allowed and taken in the said Court?
by the respective judges, officers, and practitioners therein :
Be it therefore enacted by the King's most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
that it shall be lawful for His Majesty, with the advice of

RULES AND IIF.OIJLATIONS.

Ilia Privy Council, from time to time to make nnd ordain
such rules and regulations as shall be deemed expedient
touching the practice to be observed in suits and pro-
ceedings in the several Courts of Vice-Admiralty at
present or hereafter to be established in any of His
Majesty's possessions abroad ; and likewise from time to
time to make, ordain, and establish tables of fees to be
taken or received by the judges, officers, and practitioners
in the said Courts, for all acts to be done therein ; and
also from time to time, as shall be found expedient, to
alter any such rules, regulations, and fees, and to make
any new regulations and table or tablfs of fees ; and that
all such rules, regulations, and fees, after the same shall
have been so made and establi. ..jd or altered, from time
to time, be entered or enrolled in t> ^ pablic books or
records of the eaid Courts, so far as such practice
and fees shall relate or apply to each of such Courts
respectively.

II. And be it further enacted, that a copy of every
table of fees so to be from time to time made and esla-
blished or altered, shall be laid before the House of Com-
mons within three calendar months next after the making
and establishment or alteration thereof respectively, if
Parliament shall be then sitting, and if not, then within
one calendar month next after the subsequent meeting of
Parliament. .

III. And be it further enacted, that the several fees so
to be established, and no other, shall, from and after the
making and establishment thereof, and the entry and
enrolment thereof as aforesaid, be deemed and taken to
be the lawful fees of the several judges, officers, ministers,
and practitioners of the said respective Courts ; and such
fees only shall and may be demanded, received and taken
accordingly. .

IV. And to the intent that all such regulations and
fees may be promulgated and publicly made known, be it

B 2

Ec;?ulation8
and fuc's to bo
enrolled in the
respective
Cuui la.

Tlie tables of
fees to be laid
before the
House of Com-
inons.

Fees 80 esta-
blished to be
the only lawful
fees.

Copies of the
regulations &
tables of fees
to be hung up
in each Court.

RULES AND REGULATIONS.

Appeal to the
High Court of
Admiralty in
cases of costs.

Vice-Admi-
ralty Courts to
have jurisdic-
tion in certain
maritime
causes.

B *

further enacted, that the judge and registrar of every
such Cou.t shall cause to he kept constantly hung up and
preserved in some conspicuous part of every such Court,
and in the office of the registrar, a copy of the tahle of
fees so to be from time to time ordained and established
m such Courts respectively, so that the said table may be
seen and read by all persons having any business in any
such Court and office respectively ; and that the books or
records containing the entries of the said regulations and
tables of fees, as the same shall be in force, shall be at all
seasonable times open to the inspection of the practitioners
and suitors in every such Court.

V. And be it further ena^^ted, that in all cases in
which proceedings may be had in any of the said Vice-
Admiralty Courts, if any person shall feel himself aggrieved
by the charges made by any of the officers or practitioners
therein, and the allowance thereof by such Vice-Admiralty
Court, by reason that such charges are not warranted by
the tables herein-before mentioned, it shall be lawful for
such person or his agent, under the regulations to be
established in pursuance of the powers given by this Act,
by summary application to the High Court of Admiralty
to have the said charges taxed by the authority thereof.

VI. And whereas in certain cases doubts may arise
as to the jurisdiction of Vice-Admiralty Courts in His
Majesty's possessions abroad, with respect to suits for
seamen's wages, pilotage, bottomry, damage to a ship by
collision, contempt in breach of the regulations and in-
structions relating to His Majesty's service at sea, salvage,
and droits of Admiralty ; be it therefore enacted, that in
all cases where a ship or vessel, or the master thereof,
shall come within the local limits of any Vice-Admii'alty
Court, it shall be lawful for any person to commence pro-
ceedings in any of the suits herein-before mentioned in
such Vice-Admiralty Court, notwithstanding the cause of
action may have arisen out of the local limits of such

RULES AND REGULATIONS.

Court, and to carry on the same in the same manner as if
the cause of action had arisen within the said limits.

;;

ACT 3 & 4 WILLIAM IV.
CAP. XLI.

An Act for the Better Administration of Justice in His
Majesty's Privy Council

II. And be it further enacted, that from and after the
first day of June, 1833, all appeals or applications in
prize suits, and in all other suits or proceedings in the
Courts of Admiralty, or Vice-Admiralty Courts, or any
other Court in the plantations in America, and other His
Majesty's dominions or elsewhere abroad, which may
now, by virtue of any law, statute, commission or usage,
be made to the High Court of Admiralty in England, or
to the Lords Commissioners in prize cases, shall be made
to His Majesty in Council, and not to the said High
Court of Admiralty in England, or to such Commissioners
as aforesaid; and such appeals shall be made in the same
manner and form, and within such time wherein such
appeals might, if tLis Act had not been passed, have been
made to the said High Court of Admiralty, or to the
Lords Commissioners in prize cases respectively; and
that all laws or statutes now in force with respect to any
such appeals or applications shall apply to any appeals to
be made in pursuance of this Act to His Majesty in
Council.

fT"

mmi

RULES AN1» REGULATIONS.

AX THE COURT OF ST. JAMES'S, THE 27Tn DAY OF JUNE,
1832, PRESENT THE KING'S MOST EXCELLENT
MAJESTY IN COUNCIL.

Whereas, there was this day read at the Board a
Memorial from the Right Honourable the Lords Com-
missioners of the Admiralty, dated the 19th instant, in
the words following, viz. :

" Whereas by an Act passed in the second year of
Your Majesty's reign for the regulation of the practice
to be observed in the Suits and Proceedings in the Courts
of Vice-Admiralty in your Majesty's Possessions abroad,
and for the establishment of Fees to be allowed and taken
in the said Courts by the respective Judges, Ofl&cers, and
Practitioners therein, it is enacted that it shall be lawful
for Your Majesty, with the advice of Your Privy Council,
from time to time to make and ordain such Rules and
Regulations as shall be deemed expedient, touching the
practice to be observed in Suits and Proceedings in the
several Courts of Vice-Admiralty, at present or hereafter
to be established in any of Your Majesty's Possessions
abroad ; and likewise, from time to time, to make, ordain,
and establish Tables of Fees to be taken or received by
the Judges, Officers, and Practitioners in the said Courts,
for all acts to be done therein ; and also, from time to
time as shall be found expedient, to alter any such Rules,
Regulations, and Fees, and to make any new Regulations,
and Table or Tables of Fees ; and that all such Rules,
Regulations, and Fees, after the same shall have been
so made and established or altered, shall, from time to
time, be entered or enrolled in the ])ublic Books or
Records of tlie said Courts, so fur as such Practice and

RULES AND REGULATIONS.

Fees shall relate or apply to each of such Courts respec-
tively.

" And whereas among other provisions of the said Act
it is ordained, with respect to doubts that may arise as
to the jurisdiction of Vice-Admiralty Courts in His
Majesty's Possessions abroad, or to Suits for Seamen's
Wages, Pilotage, Bottomry, Damage to a Ship by colli-
sion. Contempt in breach of the Regulations and Instruc-
tions relating to His Majesty's Service at sea, Salvage
and Droits of Admiralty, that in all cases where a Ship
or Vessel, or the Master thereof shall come within the
local limits of any Vice-Admiralty Court, it shall be
lawful for any person to commence proceedings in any
of the suits before-mentioned in such Vice-Admiralty
Coiu:t, and to carry on the same in the same manner as
if the cause of action had arisen within the said limits.

" And whereas we deem it of great importance that
one uniform system of practice should prevail in all the
Vice-Admiralty Courts in Your Majesty's Colonies, we
would most humbly submit to Your Majesty that Your
Majesty will be pleased by Your Order in Couhw^i to
authorize us to carry into effect the said Rules and
Regulations touching the practice in Suits and Proceed-
ings in the said Courts, as laid down in a Report of
certain Referees appointed by the Lords Commissioners
of Your Majesty's Treasury, and approved by the Judge
and other competent Law Authorities of the High Court
of Admiralty of England ; and also that the Tables of
Fees proposed and approved Ly the said Authorities may
be established by Your Majesty's Order in Council, as
the only Fees to be taken and received by the Judges,
Registrars, Marshals, Advocates, and Proctors of the
Vice-Admiralty Courts of the respective Colonies, as
laid down by the Referees, and approved by the Law
Authorities above-mentioned.

" And further, that we be authorized to carry into

RULES AND REGULATIONS.

execution all other provisions contained and set forth
in the Act of Parliament aforesaid."

His Majesty having taken the said memorial into
consideration, was pleased, by and with the advice of His
Privy Council, to approve of what is therein proposed ;
and the Eight Honourable the Lords Commissioners of
the Admiralty are to give the necessary directions therein
accordingly.

W. L. Bathurst.

■ f

RULES AND REGULATIONS.

RULES AND REGULATIONS

TO BB OBSERVED IN THE BBTERAL

COURTS OF VICE-ADMIRALTY.

§ 1. As to the holding of Courts.— § 2. Surrogates. — § 3. Registrar
and Marshal to be sworn.— § 4. Registry Office.— § 6. Registrar's
Duties. — § 6. Marshal's Duties.— § 7. Proceedings by Action. —
§ 8. Execution of Warrants.— § 9. Appearance and Bail. — § 10.
Proceeding by Default.— § 11. Contested Suits.— § 12. Proceedings
by Plea and Proof.— § 13. Examination of Witnesses.— § 14. Pro-
ceeding by Act on Petition. — § 15. Suits for Mariner's Wages.

§ 16. Suits for Pilotage.— § 17. Suits for Bottomry.— § 18. Causes
of Damage by Collision.— § 19. Suits for Salvage.— § 20. Causes of
Possession, — § 21. Action to obtain Security for the safe Return of
a Vessel.— § 22. Derelict Cases.— Sections 23, 24, 25, and 26,
relating to Pirates, have been omitted.— § 27. Prosecutions for
breach of the Revenue or Navigation Laws.- § 28. General
Rules to be observed in Practice.— § 29. Tender.— § 30. Refer-

ences.- § 31. Taxation of Costs.- § 32. Incidental Monitions.

§ 33. Commissions.— § 34. Acts on Petition.— § 35. Appeals.—
§ 36. Regulations as to the Sittings of the Court.— § 37. As to
the Return and Service of Warrants, Monitions, and other
Instruments.— § 38. Interlocutory Decree.— § 39. Monitions.—
§ 40. Proxies.- 5 41. Other General Rules.

§1. As to the holding of Courts.

Courts are to be regularly held at short intervals by
adjournment from day to day ; but the Judge is autho-
rized to sit on any intermediate day as hereinafter pro-
vided, in case the despatch of business, or other necessity
shall require. The practice which has prevailed in
many of the Vice-Admiralty Courts of presenting a
petition to the Judge to appoint a day for holding a
Court is from henceforth to cease.

The Judge is to be at convenient times accessible at

RULES AND REGULATIONS.

his chambers, that he may be, if necessary, consulted
by the Registrar on any incidental matter, or for the
purpose of hearing a motion by council, or directing the
sale of perishable goods, or doing any other act which
the emergency of a case may render requisite to be
done.

§ 2. Surrogates.

The admitted advocates of each Court are to be
appointed Surrogates, to do, in the absence of the Judge,
ordinary, or common form acts (but none other), such as
the administering an oath to a witness, decreeing a moni-
tion, taking bail, and tlie like ; but in those Courts in
which the advocate is allo»ved to act as proctor also, no
judicial act of any kind is to be sped by a practitioner
in any cause in which he may be pr iessionally retained
or interested.

When an advocate is to be admitted a Surrogate, he is
to attend with the Registrar before the Judge, and, on
being sworn faithfully to execute his ofl&ce, is to be
admitted. The Registrar is then to make an entry of
such admission in the Minute or Assignation Book, and
attest the same.

§ 3. Registrar ami Marshal to he sworn.

The persons to be appointed to execute the several
offices of Registrar and Marshal are to be sworn faith-
fully to perform their respective duties.

§ 4. Registry Office.

The Registry of the Court is to be accessible to suitors
at convenient hours in the day throughout the year ; and
a person of competent skill and knowledge is to be in
regular attendance there, for all requisite purposes.

RULES AND REGULATIONS.

§ 5. Registrar's Duties.

The duty of the Registrar is to attend all sittings of
the Court, and also before the Judge, or Surrogate in
chambers, and to make minutes of every act of Court or
decree, and to enter the same in an Assignation Book,
to be kept for the purpose, which is to form a record of
the proceedings of the Court ; he is to file, or take the
custody of all pleas, depositions, documents, exhibits,
and papers brought into Court, recording the receipt
thereof in the Assignation Book, briefly stating the
papers so received, and the date of their receipt. He is
to take the depositions of all witnesses examined upon
pleas and interrogatories. If from illness, or any other
suflficient cause, he should be unable to perform this duty,
he may, with the consent of the Judge, appoint some
other competent person to act for him on those occasions.
He is to make, or procure to be made, translations of
such documents in foreign languages brought into Court
as may be required by the Judge, or by the proctor of
either party. He is to make and to attest copies of all
records, documents, and papers that may be requisite.
He is to draw all bail-bonds, or recognizances, and to be
present at and attest the execution thereof before the
Judge or Surrogate. He is to prepare, sign, and seal
all warrants, commissions, and instruments issuing under
the seal of the Court. He is also to collect from the
practitioners, and receive for the Judge's use, the fees
payable to him. He is to have the custody of all monies
paid into Court, and to remit them when required, by
bills of exchange or other valid securities, to England.
He is prohibited from acting either as advocate or
proctor in any suit, matter, or proceeding in the Court
of which he is a Registrar,

RULES AND REOULATIONS.

§ 6. Marshal's Duties.

The Marshal is to attend the Judge in Court on all
court-days. He is to enquire and report as to the suffi-
ciency of persons proposed for bail. He is to execute
all such warrants, decrees, monitions, and other instru-
ments as shall be issued from the Court, and be directed
to him ; and he is to make due returns thereof.

In cases where, in order to avoid expense, it may be
deemed requisite to employ others than the Marshal to
execute the process at any great distance from the Court,
the instrument is to be addressed as follows : —

" To all and singular Mayors, Justices of the Peace,
Bailiffs, Constables, Officers, and Ministers of Justice,
or literate persons whomsoever, and more especially to
the Collector and Comptroller of our Customs at the port

of ;" or in some similar form, if more appropriate

to the existing authorities in the colony.

And on those occasions either the Collector or Comp-
troller of the Customs is to be preferred, unless they are
parties to, or interested in, the suit.

And with the same view of avoiding expense, it is
expedient that other duties which properly belong to the
office of Marshal, and which require to be performed at
a distance from the Court, be executed by others; in
which cases, commissions are to be addressed specially
to any competent persons, by name, resident near the
place where such duties are to be performed.

§ 7. Proceedings by Action.

These are to commence with an entry by a proctor,
in a book to be kept in the Begistry for that purpose,
called the Action Book, of the action in a given sum
sufficient to cover the demand and the probable amount
of costs ; but this sum is on no account to be excessive.

■I

RULES AND REaULATIONS.

Before any warrant is issued, the party applying for the
same is to exhibit to the Registrar an affidavit, setting
forth the nature of the demand, that application for pay-
ment has been made without effect to the parties con-
cerned, and that the aid and process of the Court are
required for the enforcement thereof. Upon the leaving
of this affidavit in the Registry, a warrant, spec:fyirg the
amount of the action, may issue to arrest the property
proceeded against, or the person in cases where personal
arrest is lawful ; but personal arrest is never to be
resorted to when the ends of justice can be other. vise
obtained. The proctor, having obtained the warrant
from the Registrar, is to make a copy of it, and then
deliver the warrant and copy to the Marshal, with instruc-
tions for the execution of the process. If the instrument
is to be served on a ship, cargo, and freight at different
places, as many different copies thereof as are requisite,
must be made by the proctor for that purpose. Every
copy is to be examined with the original by the Marshal,
or the person serving the instrument.

§ 8. Execution of Warrants.

When a ship is, or a ship and cargo are, to be arrested,
the warrant is to be affixed on the mainmast or some con-
spicuous part of the vessel for a short time, and a collated
copy of it left on board ; and when goods only are to be
arrested (either for the purpose of proceeding against
such goods or the freight due thereon), the warrant is to
be affixed for a short time on part of the goods, and a
collated copy thereof left thereon, or with any person in
whose actual custody the goods may be.

In cases of personal arrest the warrant under the seal
of the Court must be shown to the party before he is
taken into custody.

A certificate of the service of every warrant executed

UULES AND ItEGlXATIONS.

by the Marshal is to be endorsed thereon, and signed by
him, in which he is to set forth the time when, and the
mode by which the service was effected.

When a warrant is served by any other person than
the Marshal, there must be, in addition to a similar cer-
tificate of the person serving it, his affidavit in the
verification thereof.

The warrant having been served is to be delivered back
to the proctor, to be by him returned into the Registry at
the time when it purports to be returnable ; and the
Registrar is then to attend with the proctor before a
Judge or Surrogate, and enter a minute in the Assigna-
tion Book, that the warrant has been returned duly served
and executed.

§ 9. Appearance and Bail.

After the entry of an action, and before the issue of a
warrant, the defendant may voluntarily appear and give
bail, and thus avoid the expense consequent on the issue
of process.

An appearance alone, without any bail, may be sufficient
for the purpose of contesting a suit, but in cases of the
arrest of property or of the person, either the demand
must be satisfied, or competent bail given before the
property or person is released from the arrest.

In order to avoid unnecessary detention when the
arrest is to take place at a distance from the Court, a
commission for taking bail is to accompany the warrant,
as an authority to the party serving the warrant to release
the individual or the property on sufficient bail being
given.

§ 10. Proceeding by Default

In the case of property ariested, and no party appear-
ing after the return of the warrant, the cause may proceed
by default, or pcmam contumacice. To this end, on the

RULES AND BEaULATIONS.

day the warrant is returned, the parties cited and not
appearing, are, at the petition of the proctor, to be
pronounced by the Judge or Surrogate to be in default,
and an entry to tliat effect is to be added by the Registrar
to the minute on the return of the warrant in the Assig-
nation Book.

At the expiration of two months from the return of the
warrant, if no appear^^nce be given, the parties cited are
again to be pronounced in default, and the promoter is to
be entitled to a decree pronouncing for the amount of his
demand, and giving him a lien on the property ; which
decree is to be drawn by the proctor, who, after it has
been perused and settled by the Registrar, is to make a
fair copy of it for the Court.

An affidavit in verification of all the facts mentioned in
the decree is to be made by the party proceeding, which
affidavit is to be drawn by the proctor, and submitted to
the Registrar.

The proctor is then to prepare a short case detailing
the proceedings, which, with a copy of the affidavit, he is
to deliver to counsel as instructions to move the Court
to sign the decree, of which, when signed by the Judge,
the Registrar is to make a minute in the Assignation
Book.

On the same Court day, or on any subsequent
adjourned Court day, if an affidavit of two persons is
exhibited, stating that the property proceeded against is
perishable and likely to deteriorate in value, the Judge is
to direct a decree of appraisement and sale to issue, of
which the Registrar is also to make an entry. This
decree is then to be delivered by the Registrar to the
proctor, and by the latter to the Marshal, with instruc-
tions for its execution. The Marshal is thereupon to
select a broker, or other person conversant with the value
of the property, and to administer an oath to him justly
and faithfully to inventorize and appraise the ship, her

RULES AND REOITLATIONS.

tackle, appnrel, and furniture, or the goods, as the case
may be. An inventory and appraisement arc then to be
made, and the Marshal is to cause the property to bo
publicly advertised by printed bills or otherwise, and,
after sufficient public notice of the intended sale, to be
sold by auction. The sale being completed, the Marshal
is to return the decree (with his certificate as to the
execution thereof) into Court, or before the Judge or
Surrogate in Chambers, and to bring in at the same
time the inventory and appraisement, with a more ex-
tended return of the Marshal and appraiser, signed by
them, setting forth the particulars and the value of the
ship or goods as appraised ; and he is also to bring the
account of sales and proceeds into the Registry within the
time specified in the decree.

If the property be of considerable value, two brokers or
appraisers may be employed, provided there is sufficient
reason for the same. The property is never to be sold
under the appraised value, unless by special order of the
Court; and if the appraised value cannot be obtained
after an attempt to sell, the Marshal is to exhibit an
affidavit of at least t\ o persons, stating that the property
had been duly advertised and put up at public auction,
when only a certain sum was bid for the same. And if
the Judge be then satisfied that all has been done as
properly and fairly as if the owner himself had been
selling his own property, he is to direct the same to be
sold at a reduced price, but not for less than a sum which
he in his discretion is to fix. A minute of such order is
to be entered by the Registrar in the Assignation Book,
and the property is then to be offered again to sale by
public auction.

When the proceeds are brought into the Registry, the
Registrar may pay out of Court to the party proceeding,
on his application for that purpose, the amount of the
debt pronounced for, together with the costs of the suit.

RULES AND KEO'JLATIONS.

t]ie Haiuc being first duly taxed and allowed by the
Judpe.

When a decree pronouncing for the interest of a party '
proceeding by default has been signed by the Judge, if
any other party should olso proceed against the property,
he will be entitled, on motion of counsel, to have his
interest pronounced for by an interlocutory decree, after
the warrant has been returned two months, and a second
default has been incurred in his particular suit. On this
occasion a similar affidavit must be exhibited to that
required on obtaining the decree for the interest of the
party who had originally proceeded by default.

The balance of proceeds, if any remain in the Registry
after satisfying the amount pronounced for and costs,
may, on production of the ship's register, or other satis-
fiictory evidence of ownership, be paid out to the owner.
But if his application be made within a year and a day
from the return of the warrant, he is to give bail to
answer latent demands.

The sufficiency of sureties is to be reported upon by
the Marshal, and the bail must be given in the manner
hereinafter mentioned respecting bail to answer an action
in a contested suit.

In a case proceeding by default or in poenam, the owners
of the property are to be allowed to contest the suit at
any time before the expiration of a year and a day from
the return of the warrant ; but if they neglect to appear
until they have been pronounced in default, they must,
on appearing, pay contumacy fees, viz. all the costs occa-
sioned by such their neglect, including the charges for
keeping possession beyond the time specified in the
warrant for its return, which costs are to be taxed by the
Court.

RULES AND REGULATIONS.

§ 11. Contested Suits.

In contested suits the property remains in the custody
of the Court, but if the release thereof be a material
object to the owner, or to the party defendant, it may be
delivered to him on sufficient bail by two persons severally
in the amount for which the action has been entered.
Causes of possession, however, are not bailable unless by
the special direction of the Judge. Bail to answer aii
action, and all bail bonds or recognizances are to be
given in the following manner :

The proctor who is to produce the sureties is to furnish
the Marshal and also the adverse proctor with the parti-
culars in writing, of the names of the proposed bail, their
address and occupation ; and the Marshal, having made
due enquiry as to their sufficiency, is to deliver his
report thereon to the proctor propo::ing the bail, who is
then to instruct the Registrar to prepare the bail-bond.
The Registrar, the two proctors, and their sureties, are
then to attend the Judge or Surrogate, and, upon tLe
recognizances being duly entered into, the property is to
be released upon an instrument to be drawn by the
Marshal and issued immediately after bail has been
given. This form is to be dispensed with when the bail
is taken by commissioi).

It is competent to the adverse proctor to object to the
proposed sureties, in which case the Judge is imme-
diately to decide on the validity of the objections. If the
adverse proctor do not attend at the production of the
sureties, the bail may be taken ex jMrte upon an affidavit,
to be prepared by the proctor producing them, that he
has given twenty-four hours' notice in writing of tlieir
names, address, and occupaiion («), which affidavit is to
be left in the Registry.

(fl) See Supplementary Rules, of 2nd March, 1848.

I i

RULES AND IlEGULATIONS.

Should a party appear under protest, either objecting
to the jurisdiction of the Court or on any other ground
on which he means to contend that he is not liable to
answer the action, his appearance must be entered by the
Registrar in the Assignation Book as given under protest,
and the party so appearing is to be assigned to deliver his
act on protest to the adverse proctor within a limited
time. The same course of proceeding is to be pursued
on the act on protest as in cases of acts on petition (here-
after stated) up to the time of the hearing, when the
Judge is either to pronounce for the protest and dismiss
the suit, or overrule the protest and assign the party to
appear absolutely, and the cause is then to proceed as if
no appearance on protest had been given.

In contested suits the facts may be established either
by libel or plea, and the examination of witnesses thereon
styled " Plea and Proof ; " or by an "Act on Petition,"
supported by affidavits, to which may be annexed exhibits
or other documents to be verified in the affidavits.

§ 12. Proceedings by Plea and Proof.

When an appearance has been entered, the defendant
is entitled to an assignation on the plaintiff to exhibit a
libel w'thin a time to be limited by the Judge.

The libel or plea is to be drawn by the plaintiff's
proctor and settled by counsel, and then a fair copy,
signed by counsel, is to be made for the Court, and
brought in pursuant to the assignation ; a copy is also
to be delivered to the adverse proctor, and each proctor
is entitled to make copies for the use of his counsel at
the hearing.

There may be annexed to the libel or plea, documents
or exhibits pleaded or referred to therein, of which copies
are to be made in like manner, the originals being brought
into Court. And upon the libel or plea being brought

c 1

RULES AND REOULATIONS.

I: II

in, the Judge is to assign to liear, on admission thereof,
on the next court-da)', or at a time to be named by him.
The defendant's proctor may then lay the libel or plea
before counsel for his advice, if the same be opposable,
and if it be deemed by him not suflBcient in law (sup-
posing it be true) to warrant the plaintiff's prayer, the
admission of it may be opposed ; whereby if the plaintiff
has no legal cause of action, the suit may be stopped in
limine, it being the duty of the Judge to reject all pleas,
which, if assumed to be true, will not justify him in pro-
nouncing a decree for the party giving in such plea. Or
if the plea contains matter unnecessary or irrelevant to
the cause of action, or is drawn in too diffuse or argumen-
tative a mannei*, the admission thereof may be opposed.
Upon these objections coming on to be debated, the Judge
will order the plea to be admitted, reformed, or altogether
rejected as he shall see cause. If ordered to be reformed,
the Judge will in his discretion direct the objection-
able matter to be expunged and other points modified.
If ordered to be rejected, such rejection puts an end to
the suit.

On the libel being debated, a case on each side is to
be prepared by the respective proctors, and delivered to
counsel with copies of the libel and of the exhibits, if
any, which copies, however, must afterwards serve for
the use of the counsel at the final hearing.

Pleas, the admissibility of which is not objected to, are
admitted to proof of course.

Pleas or allegations given in a subsequent stage of a
cause, may be admitted, reformed, or rejected in a similar
manner.

On the libel being adittmed, the proctor giving in the
same is to be assigned to prove its contents by evidence
within a time to be limited by the Judge, and the party
giving in the plea is entitled, if he desires it, to the per-
sonal answers in writing of the adverse party. In that

nULES AND REGULATIONS.

case a decree for answers is to be extracted from the
Registry and served on the i)arty, by shewing liim the
original under seal, and leaving with him a copy thereof.
The answers are to be drawn by the proctor for the
party required to give in the same, who must answer
specifically to all the facts or allegations in the plea which
are within his own knowledge, by either admitting or
denying the same ; and as to all matters, he must answer
to his belief or disbelief.

No extraneous or irrelevant matter is to be introduced,
but the party may set forth any matter necessary to ex-
plain his answer. If any facts are introduced which are
capable of proof by witnesses, they must be established
by evidence regularly taken on a plea. The answers are
to be settled by counsel, and then the party attended by
his proctor is to be sworn to the truth thereof before the
Judge or Surrogate m the presence of the Registrar, who
is to make and sign an attestation at the foot thereof.
The Registrar is then to file them and make a minute in
the Assignation Book, of their having been sworn and
brought into Court. The adverse proctor may im-
mediately inspect them without waiting for publication,
and may have an office copy of them. And if they be
insufficient, redundant, or contain matter not pertinent,
may be objected to in the same manner as a libel or plea.

If after the return of a decree personally served, the
party does not give in his answer within the time
assigned, the Judge may decree an attachment against
him for his contumacy ; but notwithstanding this mea-
sure, the proctor for the plaintiff may proceed with the
production of his witnesses and take other requisite
steps in the cause.

§ 13. Examination of Witnesses.
The name of the witness and a designation of the

RULES AND REGULATIONS.

I ; .

specific articles of the libel or plea on which he is to be
examined, must be delivered to the adverse proctor and
to the Registrar or Examiner, whereupon the proctor
giving in the plea is to attend the witness and produce
him before the Judge or Surrogate, in Court or chambers,
when the witness is to be immediately sworn in the
presence of the Registrar. Due notice of his intended
production must be given to the adverse proctor, who
may attend if he think fit. On the witness being so
sworn, the Registrar is to make an entry thereof in the
Assignation Book.

The deposition in chief is not to be taken upon written
interrogatories, but by relevant questions put viva voce by
the Registrar or Examiner, and arising out of the cir-
cumstances pleaded, but not so put as to lead the witness.
If there are several pleas, witnesses are to be examined
on each plea. The witness must not be dismissed until
the lapse of twenty-four hours from the time of his px'o-
duction, so that the adverse proctor may have an op-
portunity to cross-examine him by interrogatories in
writing if he think fit ; and this time may be extended
on reasonable cause to be shewn by the proctor through
the Registrar to the Judge. Such interrogatories are to
be drawn by the adverse proctor, and, when pi'acticable,
settled by counsel. They are then to be copied for and
signed by counsel, and delivered to the Registrar, with
instructions as to the particular interrogatoi'ies to be
administered to each witness. When the witness has
been examined in chief, and also upon interrogatories,
if any are to be administered, the depositions in chief,
and also the answers to tlie interrogatories (if any,) are
to be read over to or by the witness and signed by
him, and he is then to attend with the Registrar before
the Judge or Surrogate in chambers, and make a decla-
ration that he knows tlie contents of his deposition, and
that the same are true in virtue of the oath by him taken

RULES AND REGULATIONS.

on his being produced ; and an attestation thereof is to
be made at the foot of the deposition by the Registrar or
Examiner.

The evidence of the witnesses is in all cases to be
kept closely sealed, and the contents thereof are not to
be divulged until publication shall have been passed ;
after which, but not sooner, the proctor administering
the interrogatories, if any are administered, is to deliver
a copy thereof to the proctor producing the witness.

In the event of any witness refusing to attend to be
examined, his necessary expenses having been tendered
to him (but not otherwise,) a compulsory or subpoena, to
be prepared by the Registrar, may be extracted, and
served on the person so refusing to attend, by shewing
to him the original instrument under seal, and leaving
with him a collated copy thereof, and if he do not appear
to this process, an attachment may issue against him for
his contempt.

The witnesses for the plaintiff being all examined, his
proctor may on the first court- day afterwards pray pub-
lication of the evidence, which is to be decreed to take
place at a time to be fixed by the Judge ; and at the expi-
ration of that time it is imperative on the opposite party
to plead if he intends to do so at all ; for this purpose,
he is to attend before the Registrar or Surrogate, and
declare in a minute of Court that he intends to offer an
allegation or counter-plea, and the same must be brought
into Court within a reasonable time, to be assigned by
the Judge. In that case, publication of the evidence
must be stayed until the allegation be disposed of,
either by being admitted or rejected by the Court, or
by the party abandoning the intention of giving it in. If
admitted, publication must be stayed until the whole
evidence in the cause be taken. In the event of no
allegation or counter-plea being given, or, if given, being
rejected by the Court, or withdrawn by the party, publica-

it*' f .■

RULES AND REGULATIONS.

tion of the evidence is to take place ; and thereupon the de-
positions may be inspected on each side, and copies thereof
furnished to the parties at the request of their proctors,
who may make copies thereof for their respective counsel.

After the evidence has been inspected, neither party
can claim as a matter of right to give any further plea or
allegation in the principal cause ; but if the Judge shall
be satisfied by affidavit that there is any matter important
to the issue, which could not have been pleaded before
by reason that knowledge thereof had not come to the
party prior to, or that the fact had occurred after the
publication, the Judge in his discretion may allow such
matter to be pleaded.

Allegations exceptive to the testimony of witnesses,
may be given after publication in cases only where the
matter on which they are founded, arises out of the
evidence of the witness or witnesses excepted to, and
where the contradiction, if proved, would tend materially
to destroy his or their credit ; but no allegation exceptive
to the testimony of witnesses is to be admitted, if the
facts it contains either have been or could have been
pleaded before publication. After publication, no allega-
tion, pleading generally that the witness is not worthy to
be believed on his oath, is to be received. Any such
allegation, when offered, must precede publication, and
must plead generally that the witness is of bad character
and reputation, and not to be believed on his oath with-
out imputing to him any specific charges.

When several pleas are given in a cause, witnesses are
to be examined on each plea ; and all other steps are to
be pursued in the same manner as directed in respect of
the plaintiff's libel.

It is the duty of the proctors to take especial care that
the libel and defensive allegation contain all the facts
material to the decision of the cause, so that several pleas
may not unnecessarily be given.

RULES AND IIKOULATIONS.

When publication shall have taken place on all pleas,
the cause is to be set down to be heard at a time to be
appointed by the Judge. Counsel are to be furnished
with copies of all material papers, viz. pleas, exhibits, and
depositions of witnesses, but not of waiTants, decrees, or
other formal instruments, unless from circumstances, the
contents of such instruments may be material to the
discussion of the cause. A case for hearing on eaclx side is
to be prepared by the respective proctors, briefly stating
the proceedings which have taken place, and calling the
attention of counsel to the decree which each party may
pray the Judge to pronounce. The evidence is not to
be abstracted, nor are documents of which counsel are
fui'nished with copies to be more than merely described in
the case. All lengthened details are to be avoided, but
the attention of counsel is to be directed to the principal
points. A reasonable fee is to be paid to counsel on the
hearing; and if the case takes more than one day in
argument, a moderate additional or refreshing fee is to be
given for each subsequent day. Definitive sentences in ,
writing are only requisite in derelict and piratical cases.
In other causes the judgment may be given by inter-
locutory decree, and entered by the Registrar in the
Assignation Book.

If it become necessary to enforce a judgment, a moni-
tion is to be taken out against the party principal and his
bail, and served in the manner befox*e directed in regard
to instruments requiring personal service. Upon the
return into Court of the monition, with a certificate of its
due service indorsed thereon, and the tenor thereof not
being obeyed, the Judge, upon motion of counsel, may
decree an attachment against the person of the party
monished for his contempt ; directing either the attach-
ment to issue immediately, or to be suspended for a
reasonable time, as circumstances may in his judgment
require. This attachment is to be extracted from the

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RULES AND REGULATIONS.

Eegistry. The previous service of a monition may not
alwaj's be necessary. Where the disobedience is manifest
upon the face of the proceedings, and it is clear that the
order of the Court must be known to the party, an attach-
ment may be decreed without a previous monition ; but in
cases where sureties are to be attached, a previous moni-
tion is indispensable. Upon compliance with the order
for disobedience of which the attachment issued, and
upon payment of the costs of the attachment, the Marshal,
or other person executing it, is to release the party
cei tifying to the Judge fully what has been done ; but
in cases of doubt he may resort to the Judge for direc-
tions previous to the release.

§ 14. Proceeding by Act on Petition.

In case bail has been given to the action, a minute
is to be made in the Assignation Book by the Registrar,
assigning the proctor for the party proceeding to deliver
his act on petition to the adverse proctor by a time to be
fixed by the Judge. Tlie proctor is then to set forth the
facts of his case in a plain narrative manner, without argu-
ment, and concluding with his prayer. This, having been
settled by counsel (for which purpose he is to be furnished
with a copy), is to be copied fair for the Court, and then
delivered to the adverse proctor that he may reply
thereto, and with the reply, it must be returned to the
proctor of the party proceeding, that he may make a
rejoinder thereto if necessary. The reply and rejoinder
must also be settled by counsel in the same manner
as the act.

The facts alleged in the act on petition are to be
supported by affidavits ; and any necessary exhibits, or
documents annexed thereto, are to be verified in such
affidavits, which are to be confined to the material aver-
ments, and are not to be settled by counsel.

RULES AND RKGULATIONS.

Should any delay occur in the delivery of the act from
one proctor to the other, either of them may allege the same,
in the presence of the Registrar, hefore the Judge, who is
to direct the act to he returned hy a time to be specified ;
and if it be not returned by that time, or good cause
shewn for the delay, the Judge is to assign to hear the
act on petition ex jjarte, that no unnecessary postpone-
ment may take place, for which purpose a copy of the
act, instead of the original, together with the affidavits on
behalf of the party, must be brought in by the proctor
applying to have the cause so heard.

When the article is concluded, it is to be signed by
both proctors who are to attend before the Judge or
Surrogate, in the presence of the Registrar, to bring
in the same, together with the original affidavits and
exhibits. No further alFidavits or documents are to
be afterwards received, unless by leave of the Judge
obtained on special applicatiim. The Judge is then to
appoint the cause for hearing, and thereupon one copy
of the affidavits and exhibits is to be made for each of
the counsel, and one for the adverse proctor, to be
delivered to him when the originals are brought in. The
adverse proctor is also to make copies for his own
counsel. The same rules, as to the preparing the case
for hearing, delivering copies of pajiers, fees to counsel,
and the same proceedings for enforcing obedience to the
decree, are to be observed as in a cause conducted by
plea and proof.

§ 15. Suits for Munmrii' Wages.

The same regulations as to the arrest of a ship, the
subsequent proceeding by default or in poenatn, and the
rules for conducting a cause by plea and proof, are to be
applicable to the suit of a mariner for his wages, which is
called a cause of subtraction of wages, in which the
mariner may proceed against the ship, freight, and

RULES AND REGULATIONS.

master, or the ship and freight, or the owner or the
master alone ; and any number of mariners, not exceeding
six, may proceed jointly in one action.

When an appearance is given, the proctor for the party
proceeding is entitled to an assignation on the dtifendant
to bring into Court the mariner's contract and ship's
books ; and he is not compelled to file his libel until they
are so brought in. r

The libel, if in common form and pleading no special
matter, should state the hiring, rate of wages, performance
of service, and the refusal of payment ; and should have
annexed to it a schedule, stating the whole amount of
waces, witli the sum received on account, and the balance
claimed to be due. This plea is termed a summary
petition, and should not be settled by counsel.

§ IG. Suits for Pilotage.

Suits for the recovery of pilotage, where no party
appears to defend the action, may be conducted by
default or in pcenam. When contested, the proceeding
will be by plea and proof ; the libel or plea, as in suits
for wages, if containing no special matter, is also called a
summary petition, and need not be settled by counsel.

§ 17. Suits of Bottomry.

'J'hese suits may likewise be conducted by default or in
pwnam, and ships may be sold, in virtue of a decree of
the Court, for the payment of bottomry bonds without
any appearance having been given to defend the action.

When the validity of the bond is contested, the cause
generally proceeds by act on petition and affidavits, but
the party promoting the cause may, if he thinks proper,
proceed by plea and proof: and it is competent to
defendant, on his appearance, to require the cause to be

nULES AND REGULATIONS.

conducted in that manner, for whicli purpose he must
pray the Judge to assign the promoter to bring in a libel.

Before the warrant is extracted from the Registry, the
original bond must be exhibited to the Registrar in addi-
tion to the usual affidavit.

§ 18. Causes of Damage by Collision.

These causes may also be prosecuted by default or in
pcenam. When defended, the suit is conducted by plea
and proof, and differs in no respect from that mode of
proceeding already detailed.

Suits of Damage by Beating or Assault on the High Seas.

In these cases the suit is by plea and proof, and the
warrant is necessarily against the person.

Prosecutions for contempt in breach of the Maritime Law, and
of the Regulations and Instrw^tions Relating to His Majesty's
Service at Sea.

These prosecutions can only be instituted on complaint
by an officer in His Majesty's Navy, and under the direc-
tions of the Lord High Admiral, or the Commissioners
for executing the office of Lord High Admiral of the
United Kingdom, or of some one of the Admirals or
Commanders in Chief of the naval squadrons abroad, and
are to be conducted in the following manner : —

An affidavit of two persons is to be exhibited by the
proctor for the Crown, stating the name and description
of the party intended to be proceeded against, and detail-
ing the particulars of the offence committed, which
affidavit, with a short case, is to be delivered to the
advocate for the Crown to move the Judge to decree the
warrant of arrest, who, in making the decree, is to specify
the amount of the bail to be given as he shall consider
sufficient to ensure the personal appearance of the party

RULES AND RrotTLATIONB.

I' 'I

prosecuted when judgment slmll be pronounced. This
amount is to be stated in tlio Action Book and on tlie face
of the waiTant. Tlie jMnrshal is then to execute the
warrant by the arrest of the person of the offender, who
is to be liberated on giving sufficient bail, which is to be
taken in the usual manner.

On the appearance being given, the proctor for the
Crown is to be assigned to exhibit articles pleading Ihe
offence within a short time to be specified by the Judge.

These articles are to be prepared by the proctor for
the Crown, and may be settled by counsel, and the cause
is then to proceed like other suits, by plea and proof,
with the following exceptions :

1st. On the articles or plea being admitted to proof,
the defendant must be assigned to declare in act of Court,
within a reasonable time, generally whether he denies the
facts pleaded, which is termed giving a negative issue, or
whether he confesses them, which is termed giving an
affirmative issue.

Sndly. In case of an affirmative issue, the judgment of
the Court may be immediately pronounced, on which
occasion the defendant is to be allowed to exhibit affidavits
in mitigp*ion of punishment, but not to deny the offence
charged.

3rdly. Extended personal answers in writing to the
different positions or averments of the articles cannot be
required from the defendant.

4thly. Where a m pc.tive issue is given, the defendant
may be at liberty io oli'er a defensive plea.

After the evidence is taken, if the Judge shall decide
that the charge is established, he will proceed to give
sentence, imposing the fines due by law on the defendant
and condemning him in the costs. In very aggravated
cases, the defendant may also be imprisoned for a limited
time. Affidavits in mitigation may be offered and are to
be received when the offence has been proved by evidence.

RULKS AND REOITLATIONS.

a I

§ 19. Suits for Salvage.

The ordinary course of proceeding is by act on petition,
but in cases where no appearance is given these suits
may be prosecuted by default or in pamm. The property
must on J' > account be released from arrest until a value
shall be agreed upon between the parties and alleged in
minute of Court, which is to be entered by the Registi'ar
in the Assignation Book.

If the value cannot be agreed upon, a decree of appraise-
ment must be extracted by the proctor for the salvors,
and executed and returned into Court before the property
is released. This constat of tlie value is necessary both
for regulating the amount of bail to be taken, and for
guiding the Judge, at the final hearing, in fixing a proper
remuneration for the services of the salvors, with reference
to the value of the property saved.

§ 20. Causes of Possession.

These causes are to commence by the entry of an action
at the suit of the owners or owner of a majority of interest
in the ship, and a warrant is to be issued to obtain pos-
session thereof from any party who may withhold the
same. No amount of action need be inserted in the
Action Book, or on the face of the warrant.

An affidavit of the party proceeding is to be prepared
by the proctor, and laid before counsel, with a short case
stating the circumstances, in order to move for the war-
rant, which can be obtained only on motion of counsel.
The affidavit need not previously, as in other cases, be
left in the Registry. On this occasion, the Judge or
Surrogate is to be attended by the proctor, counsel, and
Registrar ; anJ the Judge, on reading the affidavit, if it
be satisfactory, will, on motion of counsel, decree the
warrant citing all persons in general to appear and answer

RULES AND REOUL/^VIONS.

to tlie party proceeding in a cause of possession. The
warrant having been served on the ship is to be returned
into the Registry, and if no appearance be given within a
month from such return, the Judge, if satisfied that the
party proceeding lias a majority of the legal interest, is,
on the affidavit originally brought in or on further proofs,
if necessary, being exhibited on motion of counsel on the
next regularly adjourned court-day, by interlocutory
decree to order possession of the ship to be delivered to
the party proceeding, or if necessary assign a further
limited time for entering an appearance, and on any sub-
sequent regulai'ly adjourned court-day in like manner
pronounce his decree, which is issued by the Registrar
from the Registry.

Should any party appear to contest the right of posses-
sion, the cause is to proceed by act on petition and affida-
vits, the ship remaining in the custody of the Court until
the final hearing, because the object of the suit, which is
to obtain actual possession of the property, cannot other-
wise be secured.

Upon an interlocutory decree being pronounced in
favour of either party, a decree of possiession is to be
issued accordingly.

During the dependence of the suit on proof by affidavit
being exhibited that the ship's register is in the posses-
sion of any person whomsoever, a monition may be issued
requiring him to bring it in, or shew cause why it should
not be brought into the Registry to abide the event of the
suit. Or, after the hearing, should the ship's register
remain in the possession of any person, the Judge may,
on proof thereof, issue a monition directing him to deliver
up the same to the party in whose favour the decree has
been made.

Causes of possession may also be conducted by plea
and proof at the option of either party.

nULES AND UEGUI-ATIONS.

§ 21. Action to obtain Seen ritt/ for the safe Return of a

Vessel.

Actions of this description occur when a part owner is
dissatisfied with the management of his co-owners, and
requires the ship to be restrained from proceeding on a
voyage until bail shall be given for her safe return to the
port to which she belongs.

An affidavit of the party is first to be made setting
forth the number of shares of which he is the legal owner,
that he is dissatisfied with the management of the ship,
and is desirous of obtaining bail for her safe return to
the port to which she belongs, to the amount of the value
of his shares, which value is to be stated in the affidavit.
And upon this affidavit, which need not previously be left
in the Registry, the Judge or Surrogate in chambers is to
be moved by counsel to issue the warrant of arrest.

The action should be entered in the amount of the
value of the shares of the party proceeding, and in a
further moderate sum to cover the costs ; and on bail
being given, the vessel is to be released and allowed to
proceed on her voyage.

In case of the parties differing as to the value of the
vessel, she must be appraised under the autl >riiy of the
Court; and the actual value of the shares of the party
proceeding at the period of giving bail, whether the ship
be appraised or not, is the amotmt to be recovered in case
the bond shall ultimately be pronounced to be forfeited.

The costs of the arrest are to be borne by the party
proceeding ; and the costs of giving bail by the defendant,
unless the Judge shall see cause to order otherwise.

In the event of the loss of the vessel before her return
to the port to which she belongs (until which time the
bail bond remains in force), the party principal and liis
sureties may be called on by monition to shew cause wliy
they should not bring in the amount of their recognizances,

1^1

RULES AND REGULATIONS.

in order to abide the judgment of the Court. To obtain
this monition an affidavit must be exhibited, showing that
the bond has become forfeited, and it must be moved for
by counsel before the Judge or Surrogate. The monition
when obtained requires personal service.

Should an appearance be given and the suit be con-
tested, the proctor of the party proceeding is to be
assigned to deliver an act on petition to the adverse
proctor, and the cause is then to take the same course as
other cases conducted by act on petition.

1)', i,

§ 23. Derelict Cases.

In cases of derelict the action is to be entered and the
warrant extracted by the proctor for the Admiralty, with-
out any amount of action being stated in the Action Book
or on the warrant, and no affidavit is necessary to obtain
the warrant, which, when issued, is to be served by affix-
ing it for a short time on the ship or goods found derelict,
and by leaving thereon affixed a true copy thereof. The
warrant is then to be returned by the proctor into the
Registry.

After the lapse of three months from the return of the
warrant (the property remaining in the custody of the
Court), the Judge, on the next regularly adjourned court-
day, at the petition of the proctor, and on his allegation
in Court that the warrant has been returned upwards of
three months, and that no appearance has been given, is
to decree a monition to issue, calling upon all persons to
appear and shew cause why the property should not be
condemned, at the expiration of a year and a day from
the return of the warrant, as droits and perquisites of His
Majesty in his office of Admiralty. The monition is to
be made returnable at' three months after its date, and is
to be served by affixing the original for a short time either
on the Court-House or on the Exchange, or place of com-

RULES AND REGULATIONS.

mon resort of merchants, or as the usage of the colony or
settlement may be, and by leaving thereon affixed a true
copy thereof. The object of this general service is to
give the utmost publicity, so that the contents of the
monition may be most likely to reach the knowledge of
all parties interested. After this service, the monition is
to be returned into the Registry, with a certificate of
service indorsed thereon.

If the property be in a perishable condition, and the
Judge be satisfied by affidavit at any period after the
arrest that it would be for the benefit of all parties inter-
ested therein that the same should be forthwith sold, it
may be appraised and sold under the direction and
authority of the Court, and the proceeds paid into the
Registry.

At the expiration of a year and a day from the return
of the warrant, if no claim or appearance be given for
the owners, the Judge, on the next regularly adjourned
court-day, is to proceed to condemn by sentence the
property as droits and perquisites of His Majesty in his
office of Admiralty. The sentence is to be prepared bj'
the proctor, who is to make a fair copy thereof, for the
Judge's signature, which is to be signed in Court in
presence of the Registrar, and a certificate is to be added
by the Registrar on the sentence, and a minute made
in the Assignation Book of the same having been so
signed.

The owners of property proceeded against as derelict,
may appear at any time before the termination of the
cause, and claim the same without being liable to any
fees of contumacy incurred prior to their appearance.
The claim with an affidavit in verification thereof, is to
be drawn by the proctor, and should set forth the name,
residence, and occupation of the owner, the title of the
party to, and the identity of, the ship or goods claimed.
Documents or exhibits in support of the affidavit may

D 2

RULES AND REGULATIONS.

be annexed thereto. When the chiim and affidavit have
been settled by counsel, the proctor is to attend his
party before the Judge or Surrogate, to be sworn to the
same in the presence of the Registrar, and the Judge
will then assign to hear on admission thereof on the
next court-day, or at any other time to be by him fixed,
of which notice is to be given to the parties. A copy of
the affidavit and claim is to be given to the proctor for
the Crown, and if the counsel for the Crown be satisfied
that the party claiming is entitled to restitution of the
property, he is to consent to the same being restored,
which on motion of counsel before the Judge may be
immediately done on payment of the salvage, and the
expenses on behalf of the Crown. The instrument of
restitution is to be prepared by the Registrar, and ex-
tracted from the Registry by the proctor for the claimant.
The interests of salvors are always to be protected,
and to this end, if restitution be consented to, and if
salvage has not been previously paid, bail to our Sove-
reign Lord the King, in his office of Admiralty, in a sum
sufficient to answer salvage, must be given by two persons
on behalf of the owners before the instrument of restitu-
tion is to be issued.

If the title to the property is contested, the cause must
come on to be heard in Court ; a case and papers being
delivered to counsel as in other contested causes.

§ 37. Proscmtiom for breach of the Revenue or Navigation

Laws.

An affidavit is to be made by the seizer, detailing the
grounds of the seizure and the circumstances attending
the same, to which, in the case of a vessel being seized,
is to be annexed all original papers that have been
delivered up at the time of seizure, and which must be
verified in the affidavit. Or if the ship's papers have

KULKS AND REGULATIONS.

been concealed, thrown overboai'd, or destroyed, the fiict
of such concealment or destruction should be stated in
the affidavit.

The affidavit is to be exhibited to the Judge or Surro-
gate, who is to decree a monition to issue, returnable
fourteen days after service, citing by name the owners,
or persons implicated (if known) in special, and all others
in general, to appear and shew cause why the forfeiture
should not be decreed, and the penalties due by law
pronounced for: but where the j^arties are not known
the monition must only cite all persons in general.

When the monition specifies the names of the parties
cited, it must be personally served on them like other
instruments requiring personal service, and must also,
like other monitions where the names of parties are not
mentioned, be served on the Exchange or Court-house,
or other public place, as before directed respecting
instruments requiring service against all persons in
general.

The monition having been served and no appearance
being given, the Judge is to proceed by inteidocutory
decree to condemn the property : but such condemnation
is not to take place on any other than a regularly ad-
journed court-day, and not until the expiration of four-
teen days from the return of the monition, and if it has
been personally served, the Judge may, without requiring
any further evidence than the affidavit to lead the moni-
tion, pronounce for the penalties due by law.

If a personal service of the monition cannot be eifected
by reason that the persons named therein have purposely
absented themselves to avoid the service, the Judge may
pronounce a similar decree ; but if he has reason to
believe that the persons named in the monition are bond
fide ignorant thereof, he is to reserve his judgment so far
as relates to the penalties sued for, and also as to the
property, should any doubt arise upon the evidence.

•■ II

KULES AND REGULATIONS.

Ill the case of a monition citing all persons in general,
and not describing any person by name, no penalties can
be pronounced for, but if the persons by whom the offence
was committed shall afterwards be discovered, a subse-
quent monition may be issued in the same suit against
him or them for recovery of the penalties.

In order to move for the interlocutory decree, a case,
with a copy of the affidavit, must be delivered to counsel.

A claim may be given on behalf of the owners at any
time before the interlocutory decree, and the claimant
may, if he think fit, require the seizer to file an informa-
tion or libel, to which the claimant may give in a respon-
irr'^ plea or allegation, and the case will then proceed by
pita and proof in the manner before mentioned.

To the claim must be annexed an affidavit, containing
:^^e u ., i^, descriptions, and residence of the owners, and
a detail ot all the circumstanccB on which the claimant
means to rely as the grounds of his defence.

The claim and affidavit are to be prepared and given
in as directed in derelict cases ; but in compliance with
the Act of 6 Geo, 4, c. 114, s. 62, security must be given
on behalf of the claimant in the sum of 60/. sterling, to
answer costs before any claim can be received.

Upon a claim being filed, the Judge, with the consent
of the Collector and Comptroller of the Customs, may
order the delivery of the property to the claimant on his
giving bond, with two sufficient sureties, to answer double
the value of the same, as provided by the 58th section
of the said Act.

The Court, on the application of the officer of the
Customs, or parties interested, may, at any time before
condemnation, direct the property to be sold, if it shall
satisfactorily appear by affidavit that a sale will be bene-
ficial to all parties interested.

When a claim is given, and no libel prayed, the Court
may proceed to adjudge the case upon the facts and

RULES AND REGUIiATIONS.

circumstances stated in the affidavits on both sides : but
if it shall appear to the Judge that the case is not suffi-
ciently proved by such evidence, he may direct an infor-
mation or libel to be filed by the seizer, and give leave
to the claimant to file a responsive allegation : in which
case Avitnesses are to be examined on both sides,
and the cause will proceed as in plea and proof
cases. After condemnation, the sale must take place
according to the provisions of the 56th section of the
said Act.

In order to remedy complaints which have been made
of the burthensome law charges in the Colonies, on pro-
ceedings" in revenue cases of small value, it is directed,
that any number of seizures, not exceeding in the aggre-
gate value 300Z., and not individually exceeding the sum
of lOOl., may be included in one monition, and that
different seizing officers may proceed conjointly in the
same prosecution, — care being taken that the monition,
and also the libel where that proceeding is required, be
drawn conformably with the several circumstances, and
that the different seizures be described in separate arti-
cles or counts of the libel or information. And to obviate
any possible delay in the proceedings of the seizing
officer, any claimant is to be at liberty to take out a
monition against the seizer, returnable three days after
service thereof, requiring him immediately to proceed to
the adjudication of the property seized. For this pur-
pose, and also to enable the seizer to determine whether
to proceed separately as to one seizure, or to wait for the
chance of including other seizures in the same process,
by a consideration of the expenses of warehousing and
custody of the seizure, the s'eizer is, without delay, in all
cases where the probable amount of the seizure does not
exceed in value lOOZ. to report the facts to the Registrar
of the Court.

In cases where it shall be deemed necessary to proceed

*♦

RUIiES AND KEGULATIONS.

immediately without waiting for other seizures, and the
vahie is under lOOl., the several charges of the proceed-
ing and adjudication are to be reduced 251. per cent,
upon the u.sual charges ; and if the property sepa-
rately proceeded against does not exceed the value
of 50/., one half of the usual fees only are to be
charged.

§ 28. Gemn'fil Utiles to be observed in Practice.
Subdiictioii of an Action.

If a party proceeding, determine to abandon his suit,
or has compromised the same, he may at any period be
allowed to subduct the action ; to which end, the in-octor
who has extracted the warrant is to sign a short entry to
that ett'ect in the Action Book, and the property, if any
have been arrested, is to be immediately released.

§ 29. Tender.

Whenever a tender is made on behalf of a defendant
to pay a certain sum of money, the sum tendered must
be brought into the Eegistry, and an undertaking given
for payment of the costs incurred up to that time ; this
must be done before the Judge or Surrogate, in the
presence of the Registrar and the adverse proctor, and a
minute thereof is to be entered in the Assignation Book,
and the proctor for the plaintiff is to be assigned to
declare whether he will accept the tender or not, within
a time to be limited by the Judge.

If the tender be refused, and the Court shall ulti-
mately consider the same to have been sufficient, the
plaintiff, in general cases, is to be subject to all the costs
incurred subsequent to the refusal, but under special
circumstances, where the enforcement of this rule may
be attended with injustice or hardship, the Court may

i [

iaiM:S AND UEGULATIONS.

exercise its discretion by forbearing to condemn him in
costs.

^ 30. References.

In cases where a reference of the subject in litigation
may be expedient, the Judge, either for his own satisfac-
tion or at the instance of either of the pai'ties, may refer
any accounts or demands, or any matter incidental
thereto, to the Registrar, directing him to take to his
assistance one or two merchants, and to investigate and
report on the matter. The merchants to be selected by
the Registrar and approved by the Judge.

The reference being ordered, the Registrar is forthwith
to make an appointment with the proctors of the parties
and with the assistant merchant or merchants, and all
necessary documents being produced, the Registrar and
merchants are to hear the matters in dispute discussed
by the proctors and the i^arties principal, or their agents.
The Registrar is afterwards to draw up the i-esult of the
investigation, and of their joint deliberation thereon, in
a written report, to be brought into Court, and a minute
to that effect is to be thereupon made in the Assignation
Book.

The Judge is to direct the report to be confirmed,
unless objected to by either party by the succeeding
adjourned Court-day, or within a time to be limited by
him. The report may be confirmed at the prayer of
either of the proctors, and either may object to the report
wholly or in part ; but the party objectuig must so
declare in act of Court, and is to be assigned by the
Judge to deliver in an act on petition, setting forth his
objections to tlie adverse proctor, within a time to be
limited. And the subsequent proceedings are then to be
conducted as on all other acts on petition.

UULES AND UEOULATIONS.

¥\

§ 31. Taxation of Costs.

The proctor of the party who has obtained a decree or
order condemning another party in the costs, is to furnish
the adverse proctor and the Registrar each with a copy
of his bill, and to attend the Registrar to procure an
appointment to tax the same, of which notice is to be given
to the adverse proctor, that he may be present thereat ;
and if he shall decline, or neglect to attend, the taxation
may proceed in his absence upon an affidavit being
exhibited to and filed with the Registrar, shewing that a
copy of the bill had been furnished, and that twenty-four
hours' previous notice of the appointment had been given
to him.

If the amount of the costs ascertained by the Regis-
trar be not forthwith paid, the Registrar is to report the
amount to the Court, when, if no objection be made, the
Judge is to sign the bill, which completes the taxation,
and a minute thereof is to be entered in the Assignation
Book.

If the adverse proctor be dissatisfied with the amount
proposed to be allowed, he is, on the same being reported
and before the bill is signed by the Judge, so to declare
in Court ; and in that case the Judge is to assign him to
deliver an act on petition in objection to the taxation
within a short time to be specified, and subsequently
the same course is to be pursued as in other acts on
petition.

When the Judge has signed the bill, whether as
originally reported by the Registrar, or with any sub-
sequent alteration, he is to decree a monition for payment
thereof : and if the costs be not immediately paid, such
monition may be extracted and served as usual, and may
be followed up by attachment if necessary.

! I

I
i I

nULKS AND IIKOULATIONS.

^ 32. Incidental Monitions.

In any cause, however commenced, monitions may
incidentally become necessary, which are to be made
returnable at a period to be fixed by the Judge ; and if the
tenor of the monition be not complied with, the Judge,
on prooi that it has been duly served, may enforce
obedience thereto by attachment.

§ 33. Commissions.

Commissions to take bail, to take the answers of
parties to a libel or allegation, to take the oaths of parties
or others to affidavits, to examine witnesses, and the like,
may, under the authority, and at the discretion of the
Judge, issue in cases where the parties re«.ide at so great
a distance that the transaction of the business by com-
mission will be attended with less expense than their
personal appearance before the Court.

Commissions may also issue for the unlivery of a
cargo, for the appraisement or sale of a ship or cargo, or
for the appraisement and sale of a ship and cargo in
cases when, by reason of the distance, the Marshal cannot
be conveniently employed for the purpose without great
expense.

All commissions are to be directed to respectable
merchants, or professional men named by the proctors ;
and when they can agree thereto, one Commissioner will
be sufficient, otherwise a Commissioner is to l» nomi-
nated by each party.

§ 34. Acts on Petition.

In cases where any incidental matter may become the
subject of dispute, and either of the parties shall desire
it, or if the Judge shall deem it necessary for his own

UULES AND UKOUIiATIONS.

|. i

HatiHl'uction to hiivo tho facts further elucidated, he may
direct the circuiustancca to be set forth iii uii act on
petition.

§ 35. Appatln.

All appeals from decrees of the Vice-Admiralty Courts
arc to be asserted by a party in the suit within fifteen
days after the date of the decree, which is to be done by
the proctor declaring the same in Court; and a minute
thereof is to be entered in the Assignation r)Ook. And
the party must also give bail within fifteen days from the
assertion of the appeal in the sum of 100/. sterling to
answer the costs of such appeal.

In all cases, however, in which an appeal is asserted,
except respecting slaves, the Judge may proceed to carry
his sentence into execution, provided the party in whose
favour the decree has been made give bail to ab' he
event of the appeal, by two sureties in the amoun ..e

value of the property or subject in dispute, together with
the further sum of 100/. sterling to answer costs, in the
event of the same being awarded by the superior Court.

The party appealing, having complied with these regu-
lations, is then to cause the Judge and Registrar to be
served with an inhibition from the High Court of
Admiralty, restraining them from further proceeding in
tho cause, and also with a monition to transmit the
process.

This process will consist of a fair copy of the ju'oceed-
ings under the seal of the Vice-Admiralty Court, to be
made and signed by the Registrar, at the expense of the
party ordering the same, which is to be transmitted to
the superior Court pursuant to the monition.

The proceeds, if in Court, or in the hands of any indi-
vidual, must, on a special monition for that purpose being
served, be remitted to the Registrar of the High Court of
Admiralty or Court of Appeal.

nUr.RS AND UF.OUr.ATIOXS.

ir>

§ no. Reg II fat ions m to the SittingH off/ic Court.

Before the rising of the Court, the Judge is always to
adjourn the same to a day to be by him fixed at his dis-
cretion, and proclamation thereof is thereupon to be made
in open Court by the Marslial or officer of the Court.
It is, however, competent to the Judge, notwithstanding
such adjournment. ^ ibsequently to appoint an inter-
mediate day or lays, u- may appear to him to be neces-
sary, for the expediting any particular cause or causes
before the Court.

Forty-eight hours' notice of such intermediate court-
days must always be published in the Gazette or public
newspaper of the colony by the Registrar, at the expense
of the party at whose instance r for whose benefit the
Court is to be so called, which expense is to be paid by
the proctor.

Care is always to be taken that on such intermediate
court-days, no assignation be sped, or order made, pre-
cluding the right, or to the manifest injury of any absent
party, when it shall appear that he cannot have received
sufficient notice of the sitting of the Court ; and absent
parties are always to be entitled to the favourable con-
sideration of the Judge, if on the next succeeding regu-
larly adjourned court-day cause shall be shown why an
assignation made on any intermediate court-day had not
been complied with.

In like manner, when an assignation has been made
for an act to be done by a limited time, shall not have
been duly complied with, and an intermediate court-day
shall be subsequently held, parties who cannot by pos-
sibility have been cogiiizant of such intermediate Court,
and who may have very conclusive reasons to allege why
they have been unable to comply with such assignation,
are not to be prejudiced by the enforcement of the same
on such intermediate court-day.

RULES AND REGULATIONS.

§ 37. Ag to the Return and Service of Warrants^
Monitions, and other Instruments.

In general cases, warrants, monitions, and other instru-
ments are to be made returnable, and parties cited to
appear at the Registry, either on a certain day mentioned,
or at the expiration of a certain number of days after
service, to be specified in the instrument, and between
any two hours of the day most usually appropriated to
public business.

Monitions to pay costs or a sum of money, or to do any
specific act within a certain number of days, are to be
returnable at the expiration of the usual hours of business
at the Registry, on the furthest or last day assigned to
tiie party to do the act.

If no appearance be given thereto, the Registrar is im-
mediately on the expiration of the time specified to
attend before the Judge or Surrogate in Court or Cham-
bers, with the proctor who is to return the instrument ;
and the proceedings are subsequently to be continued
according to the requisites of the cause. The day'of such
return is the period from which is to be reckoned, for all
future purposes, the contumacy or default of the party
cited and not appearing.

Instruments against all persons in general, and which
are served only on the ship or goods, or on the Exchange,
or principal resort of merchants, or on the Court-house,
can only be further proceeded on in pcenam on the
regularly adjourned court-days. But an instrument
which has been personally seiTed and duly returned, may
be followed up by all further proceedings, even to attach-
ment, without more regard to the regularly adjourned
court-days than would be necessary respecting any other
incident in the proceedings, because in such cases the
party who has been served must always be aware of the

RULES AND REGULATIONS.

liabilities to which he is exposed by his own laches, or
contempt.

If an instrument be served on a ship, or goods laden
on board a ship, when the master is on board, and the
action be one to which he ought to appear and become a
defendant, such service may, for the purpose of future
proceedings, be considered equivalent to a personal ser-
vice on him.

Wherever any monition or other instrument is served
by any other person than the Marshal, the certificate of
the service thereof must be verified by an affidavit of the
person serving the same.

All warrants, monitions, and other instruments requir-
ing ulterior proceeding in pcenam, in case of no appear-
ance or of non-obedience, must be duly retui-ned at the
time specified for their return ; and if not then duly
returned, no further proceedings can be had thereon.

§ 38. Interlocutory Decree.

The interlocutory decree, which must always be moved
by counsel, is the final act of adjudication in the principal
cause of action in any suit. But in some few instances a
suit may be terminated without it, viz : —

Where a libel is rejected.

Where a defendant is dismissed because the promoter
does not bring in his libel.

Where a protest is pronounced for, and the party
appearing under protest is dismissed.

Where an action is subducted.

If sureties apply to be dismisbv i from their recogni-
zances, it must be done by interlocutory decree ; but if
they are dismissed by the interlocutory decree in the
principal cause, no further decree of that kind is neces-
sary for their dismissal.

The fees due to the Judge and officers on an inter-

' i\

•f

"m iiwjflipqtisj^iiipiuii^iguMii

I !

■: 1

RULES AND UEGULATIONS.

locutory decree, are chargeable to all parties who receive
benefit under the same ; thus, in a case of derelict, the
fees are chargeable to the claimant who obtains restitution
of the property, and to the salvors to whom salvage may
be awarded.

No decree is to be made, nor act of Court to be sped
by the Judge or Surrogate, without the presence of the
Registrar, by whom a minute or record thereof must be
made and attested, except only in case of the Registrar's
unavoidable absence, on which occasion the Judge or
Surrogate may assume an actuary to attest joro hac vice the
act to be done. Any practitioner of the Court, provided
he be not concerned in the suit in which the act is to be
done, may perform this part of the Registrar's duty,
attesting by his signature the entry of the act in the
Assignation Book.

§ 39. Monitions.

If a monition be not decreed at the time an interlocutory
decree is made, it may, at the petition of the proctor on
either side, be decreed on any court-day afterwards.

No monition to pay costs can be extracted until after
such costs shall have been regularly taxed by the Court.

§ 40. Proxies.

Although proxies are not usually exhibited in maritime
suits, yet they may sometimes be required in order to
prevent proctors from proceeding in causes on instructions
from parties not being themselves entitled to intervene,
or not having a legal personce standi to prosecute a cause.

nULES AND REGULATIONS.

§41. Other General Rules.

Upon the execution of commissions to take bail, the
sureties must always justify their sufficiency before the
Commissioners, by being sworn to an affidavit, to be
drawn by the Registrar and annexed to the commission ;
and when bail is not taken by commission, and the Court
orders the sureties to justify, a similar affidavit must be
made.

When a cargo has been delivered to the consignee,
and he has not paid the freight, or when freight has been
paid, and is in the possession of the owner of the ship,
master, broker, or any other person, such freight may be
arrested by sei'vice of a warrant, upon the consignee or
the person in whose hands the freight remains.

The same course is to be pursued when, under similar
circumstances, a monition is to be served to bring the
freight into the Registry.

All commissions of unlivery, of appraisement, and of
appraisement and sale, are to be extracted by the proctor
for the plaintiff or promoter in tlie cause.

In those Courts in which it may be necessary that the
same individual should act as advocate and proctor, ho
may elect in which of the two capacities his fee, in those
instances where the duties are necessarily exercised
together, shall be charged, and the practitioner is in no
instance to be allowed to receive fees for the same busi-
ness in both capacities, nor to take a fee as counsel where
the act of a proctor only is necessary. The same rule
will apply to the fee specified in the table for a consul-
tation in any intermediate stage of the proceeding, should
a "necessity arise to resort to counsel for advice;" but
an advocate's fee for consultation is nut to be charged on
any occasion where a reference to counsel would not have
been necessary. Tlie practitioner in such cases is only
to be entitled to the fee for consultation as a proctor.

RULES AND REGULATIONS.

If the practitioner charges the advocate's fee for motion
necessarily made by counsel before the Judge in the
progress of the cause, he is not to charge or be allowed
the proctor's fee for attending such motion, and where he
charges the advocate's fee " for the hearing," he is not also
to charge or be allowed the proctor's fee " for attending
informations on the final hearing ;" nor is he in any case,
when acting as counsel in the cause, to charge the
proctor's fee for attendance to fee counsel.

In the case of the charges for drawing, and the fee for
settling any plea, affidavit, interrogatories, answers, and
the like, the practitioner acting in both capacities is not
to be entitled to the full fee for drawing, and to charge
a copy to settle, and also a fee for settling the same ; but
may be allowed, instead thereof, to charge such fee as the
table prescribes for the advocate on settling, and also a
moiety of the charges allowed by the table to the proctor
for drawing and copying.

It being provided by the .Ith section of the Act, under
the authority of which these regulations are established,
that persons feeling themselves aggrieved by the allow-
ance of any charges made by any officers or practitioners
in the said Vice-Admiralty Courts, as not warranted by
the estabUshed tables of fees, maj' have such charges
re-taxed by the authority of the High Court of Admiralty
of England, upon summary application thereto.

It is requisite when such appUcations are intended to
be made to that Court, that a set of the copies of all
papers previously made out and used in the proceedings
upon which the charges objected to have arisen, or so
many of them as may be necessary to explain or support
the disputed charges, be transmitted to England ; or if
Buch copies cannot be transmitted without incurring an
expense disproportionate to the object, it will be sufficient,
as a substitute for the same, that an affidavit be made
stating summarily the nature of the proceedings and the

RULES AND REGULATIONS.

decree in the cause, a description of the different papers
and the number of folios contained in each of them, and
such facts or circumstances as will explain the nature of
the cause and the charges objected to ; which affidavit is
to be filed in the Registry of the Vice -Admiralty Court,
to give the officer or practitioner whose barges may be
objected to, an opportunity of replying thereto, which he
should do within a period not exceeding fourteen days,
to be limited by the Judge, who is then to order the
costs already taxed to be referred for revision to the
High Court of Admiralty, with copies of the affidavits.
But, previous to any such order of reference being made,
the party complaining must pay to the adverse proctor
such part of the allowed charges as is not objected to,
and must bring the remainder into the Registry of the
Vice-Admiralty Court, to abide the decision of the High
Court of Admiralty.

Note. — The forcgoimi Rules and Rcgulatiom touehiug the
practice and 'pi'ocecduiga in the xereml Courts of Vice-Adini-
ra/tg Abroad, are extracted from a Report addressed to the
Lords Commissioners of His Majcstg's Treasury, drawn up
and signed by

James Farquhab,
h. b. swabey,
William Rothery,
and perused and approved by

Herbert Jenner,
John Dodson,

STEniKN LuSiriNGTON,

And the whole, together with the Talde of Fees for the respec-
tive Colonies {regulated and approved by the same persons,)
were sulmiitted to and approved fty the Right Honorable Sir
CiiBisToiniEB Robinson, Judge of the High Court of
Admiralty.

B 2

RULPJS AND REGULATIONS.

SUPPLEMENTARY RULES

! i

Established by the Queen's Order in Coimcil, dated at the
Court at Buckingham Palace, the second day of March,

1848.

The rules and regulations established by the King's
Order in Council of the 27th June, 1832, are not to be
construed to have set aside the former practice of the
Courts of Vice-Admiralty, of allowing the defendant to
require from the promoter to libel with sureties, unless
the promoter should be admitted by the Court to his
juratory caution.

From the shortness of the season of the navigation at
the port of Quebec, and the danger* " ^ risk to ships
towards the close of the navigation ii- tne autumn, from
even so short as twenty-four hours' notice of bail, to
answer an action, the period of notice of bail as provided
by the 11th section of the above rules and regulations,
shall not be required where the parties who are pro-
posed as the bail make oath that they are respectively
worth more than the amount for which they are proposed
as bail or security, over and above the amount of all their
just debts.

J. DODSON,

Joseph Phillimore.
Wm. Rothery.
H. B, Swabey.

CASES IN THE VICE-ADMIRALTY COURT
FOR LOWER CANADA.

Tuesday, ISth October, 1836.

AGNES— TAYLOR.

Defence grounded on a res judicata must be specially pleaded ; so
also must misconduct, with proper specification of the acts thereof.
Court may exercise a legal discretion as to costs. Costs refused in
this case.

This was a cause of subtraction of wages brought by
tlie mate of the vessel. The facts of the case are fully
adverted to in the following opinion of the Court.

Judgment. — Ho7i. Henri/ Black.

The present suit is brought by the promoter, as mate
of the schooner Agnes, for a balance of wages, amounting
to llOl. currency, calculated from the 5th June, 1834, to
the 4th April, 183C, at 51. per month, deducting il. for
which the promoter gives credit as received in advance.
A day having been assigned to the promoter to prove the
contents of his libel, several witnesses were produced by
him, and examined. Publication of the promoter's evi-
dence was ordered by consent, without a responsive
allegation being asserted on the part of the owners, who
appear and defend the suit. From the evidence so taken
on the part of the promoter, is established the fact of the
service of the promoter, as mate on board of this vessel,

A0N».

CASKS IN' THK VICE-AD:«IRALTY COURT

AoNBs. from the 5th of June to the 18th of October, 1834, on a
voyage from Quebec to the West Indies, and thence down
to the promoter's leaving the vessel on the last mentioned
day at Malbay, in the District of Gaspe, on her return
voyage to Quebec, the further prosecution of that voyage
having been at Malbay abandoned by the owners. The
only evidence of the rate of the promoter's wages, is to
be found in the evidence of Mr. Le Moine, who says he
believes that by the ship's articles the promoter was
rated at ll. per month. The voyage to Quebec appears
to have been abandoned on the arrival of the vessel at
Malbay. She appears to have been chartered by the
owners on a voyage to Jersey, and to have taken on
board part of her cargo, but did not proceed on this last
voyage in consequence of the refusal of the collector to
grant a permit. The owners file a protest, to show that
the vessel had been wrecked at Malbay, to which protest
the cross interrogatories of the owners apply.

The averments in the libel concerning the termination
of the voyage at IMalbay, and the cause of the promoter's
leaving the vessel there, are by no means as clear and
explicit as might have been desired, and I do not hesitate
to say that if tlie case stood now upon the admission of
the libel, I should have stopped the suit in limine, or
ordered the libel to be reformed. But my predecessor
having admitted this libel, I feel myself bound to give it
the largest construction, so as to admit evidence of the
circumstances which prevented the vessel from coming to
Quebec, and which may be considered as having deter-
mined the promoter's contract. The chartering of the
vessel at Malbay, for a new voyage soon after her arrival
there, — the absence of any plea of desertion, — tlie length
of time which has elapsed since the arrival of the vessel
at Malbay, — the production of the protest by the owners,
— and the breaking bulk at Malbay, and landing of the
cargo, or a portion of it, — establish beyond controversy

I'OR LOWER CANADA.

■>i)

that the voyage homeward ended at Malbay, and that the
promoter was, therefore, justifiable in leaving the shi^^^
there.

The claim of the promoter for wages from the time of
his leaving the vessel down to the day of bringing this
suit, is clearly not admissible. Under no circumstances
could he claim more than compensation for the injury
which he has sustained by his discharge : which com-
pensation the Admiralty would in the proper case award
in the shape of wages (o). There is, however, a total
absence of evidence of the promoter's having suffered any
damage by his discharge. We do not know how long he was
kept out of employ, when he arrived at Quebec, nor how
he has been employed in the intermediate time. Without
information as to these facts, it is impossible for the
Court to assess and award to him damages. If damage
has really been suffered by this party in consequence of
his discharge, evidence ought to have been offered thereof,
and this Court cannot and ought not to supply it.

Then, as to the claim of the promoter for wages during
the period of his actual service on board the vessel, that
is, from the 5th June to the 18th October, 1834. This
claim is resisted on the following grounds : — 1. The in-
sufficiency of the libel. 2. That the matter in contro-
versy has been tried and determined, and the claim of the
promoter rejected by a court of competent jurisdiction at
Gaspe. 3. Gross and continued misconduct on the part
of the promoter, during the time he was on board the
ship, as detailed in the testimony of Mr. Le Moine. The
first head of objection is already disposed of. On the
second head, it is to be observed that the owners have not
pleaded the judgment rendered in the Court at Gaspe as

Aqmes.

(a) Abbott on Shipping, Part v, ,
Ch. ii., 8. 1, Story's Ed. 734 ; the
Beaver, 3 Rob. 92 ; the Exeter, 2
Kob. 261 ; Emerson v, Uowland,

1 Mason, R. 45; Parry ». The
Peggy, 2 Browne's Adin. App.533;
Puthier, Louagc des Matelots, No.
205.

CASES IN THK VIC'E-ADMIUALTY COUKT

AoKKs. a refi judicata. The plea of res judicata stands upon the
same footing as the plea of prescription. Neither operates
an extinguishment of the action ipno jure, but may by
exception. The defendant not pleading the one or the
other waives it (/>). Such is the rule of law, and that rule
is consonant with equity and justice. If the exception
rci judicatte had been pleaded, the promoter might have
seen fit not further to have prosecuted his suit ; or might
have replied, setting forth grounds of nullity in the i)ro-
ceedings and judgment; or that there was no such record:
whereas, in the absence of such plea, and without notice
of this ground of defence, he might be taken by surprise,
and debarred of his just defence to the plea. Again, there
is no averment in the proceedings to which this evidence
applies, cither as affirming or controverting it, I do not,
tlierefore, think myself at liberty to enter into the con-
sideration of the nature and validity of the proceedings at
law in Gaspu. A like objection exists as to the remaining
ground, the owners not having pleaded misconduct on the
part of the promoter. He has had no opportunity, nor
has he been called upon, to controvert the accusation
of misconduct (c). If misconduct had existed, the owners
not setting it up as a defence, it must be taken that it
was pardoned (d). Besides, nothing is better established
than that where misconduct on the part of the mariner is
set up as a defence to a claim of wages, not oidy must it
be pleaded, but the pleading containing such cefence

{b) Dig. Lib. 44. Tit. 2, De ex-
ceptione rei judicata) ; 2 Browne's
Civ. & Adm. Law, 3G2 ; Vinnius,
Comment. lust. Just. L. 4, T. 13,
s. 5; Toullier, Droit Civil. Tom.
10, Liv. 3, Tit. 3, Cli. 6, sec. 3,
art. 1 er. No. 74 ; Goubeau, Traite
des Exceptions, p. 414.

2 Rob. 261.

{(l) Miller v. Brant, 2 Camp.
590 ; Laws of Wisbuy, Art. 25 ;
Laws of Oleron, Art. 13. See also
cases cited in Abbott on Shipping,
Fart II., Ch. 4, s. 3. In a suit
for wages, service and good con-
duct are to be presumed till
disproved. The Malta, 2 Hagg.
166.

Foil I.DWEH CANADA.

must furnish a specification of the acts of misconduct
with a proper degree of certainty (e).

The services having been thus established, and no
legitimate ground of defence shewn, 1 must award the
promoter's wages during the period of that service.
There is some difficulty as to the rate and quantum of
wages. Tlie promoter claims ol. a month ; Mr. Le Moine
says, tliat to the best of his belief the sum in tlie articles
was 4^ a month, and the credit for 4Z. given in the
promoter's account, would induce one to believe that this
last was the true sum, as when advances are made to
mariners at the inception of a voyage, tlie advance is
usually of one month. The ship's articles are not pro-
duced by the owners, although they have been called
upon to produce the ship's papers. The balance of wages
claimed by the promoter at Gaspe, was 15i. 5s., and
I feel myself authorised to look at the record, merely as
shewing what the promoter then str.ted his own claim at. ■
Now, taking it as we must do, that the only sum received
by him was 4l., the rate of wages could not have been bl.
I shall therefore award him wages at the rate of 4f. per
month, for the period of his actual service.

The only remaining question is as to costs. I must
disclaim any discretionary power as to the awarding or
refusing of costs, if by the term discretion is understood
any thing depending upon arbitrary will, and not upon
the proper legal construction of the statute as applied to
particular cases, to carry into effect the intention of the
legislature. I understand that discretion which the Judge
of the Admiralty is called upon here to exercise to be the
discretion which Sir Joseph Jekyll describes in referring
to the discretion which com*ts of equity are said to
exercise (/). " Though proceedings in equity are said

Aqnks.

(e) The Exeter, 2 Rob. 263 ; first Circuit, p. 384.
Macomber v. Thompson, 1 Sum- (/) Cowper v. Cowper, 2 Ptere
ner's Kep. C. (1 U. S. for the Williams, ILports, p. 753.

TASKS IN TIIK VICE-ADMIKALTY COURT

AuNsa

to be Hccnmlem diHcreiioncm boni viri ; yet when it is asked,
Vir hoiiKfi eat quifi ? the answer is, Qui coimdta patnim,
qui letjcH jHraque scrrnt {g). And as it is said in Rook's case,
5, Hep. !>!) b., that discretion is a science, not to act
arbitrarily according to men's wills and private affections :
so the discretion which is to be executed here, is to be
governed by the rules of law and equity, which are not to
oppose, but each in its turn to be subservient to the
other ; this discretion in some cases follows the law
implicitly, in others assists it, and advances the remedy ;
in others again, it relieves against the abuse, or allays
the rigor of it; but in no case does it contradict, or
overturn the grounds or principles thereof, as has been
sometimes iguorantly imputed to this Court. This is a
discretionary power, which neither this nor any other
Court, not even the highest, acting in a judicial capacity,
is by the constitution entrusted with." Now, in the
• exercise of the discretion thus described, I do not feel
that I can award costs to the promoter. It does appear
to me that the promoter might have had as effectual a
remedy for the recovery of his wages by complaint to a
Justice of the Peace under the provision of the Stat.
T) & G W. 4. c. 19, 8. 15, as he could have here. The
motives which rendered necessary the establishment of
this summary tribunal for the trial of seamen's suits,
apply with multiplied force to ships lying at the out ports,
remote from the actual seat of this Court. I shall,
therefore, certify accordingly {k).

Davidson, for promoter.

Aylwin, contra.

{y) Hor. Epist. 1. 16, v. 41.

(A) See the case of The Brig William, 2 W. i. 231.

ion LOWF.U CANAI»A.

Saturday, H-ind Octohir, 183(5.

PHCEBE— llALTIlAY.

The court has no jurisdiction in cases of suits for pilotage, where
there has been a previous judgment of the Trinity House, upon the
same cause of demand.

Judgment. — Hon. Henri/ Black.

This is a case of the fii'st impression. The libel sets
forth a contract between the promoter, a pilot, and the
former master of the ship Phoebe, attached in this suit, for
the piloting of this vessel from Quebec to Bic in the
month of November, 1835. It further sets forth that
after the making of this conti-act, the promoter had gone
on board and entered into the service of the ship, but
that the master, without good or sufficient cause, dis-
missed him from the same and employed another pilot,
whereby the promoter was prevented from piloting other
ships, and became entitled to the sum of 20i. currency,
being the amount of pilotage justly due for the piloting
of a ship of the description of this vessel from Quebec
to Bic. The libel then proceeds to allege the institution
of a suit in the Trinity House at Quebec by the pro-
moter against such former master of the Phoebe, for a
breach of this contract, and the recovery in the Trinity
House, on the 17th of the same month of November, of
judgment for the sum of lOi. currency and costs (a). This
is followed by an allegation that since the arrival of the
vessel in the present season, Mr. Dean the consignee of
the vessel for and on behalf of the owners, had promised
to pay this sum of lOZ.

(a) As to the jurisdiction of the Trinity House, see Provl. Stat. 4d,
Geo. 3, c. 12, 8. 18.

I'lriEOb'.

CASES IN THE VICE -ADMIRALTY COURT

"■('..

ril:

, ■ < ■ -

riiffiBK. The case has been argued upon the motion on the part

of the promoter for the admission of this libel, and the
question is, whether the Court can entertain a suit in rem
against a ship for services rendered to her by a promoter,
as pilot, that promoter having previous to the institution
of the sint in this Court, taken pi'oceedings before the
Trinity House for his pilotage, and having recovered
judgment there for the same.

The jurisdiction of this Court in cases of pilotage is
undoubted {b), and if the promoter had stopped at the
end of the first article of his libel, the suit must have
proceeded, leaving the defendant to plead the recovery
in the Trinity House if he should see fit. But it appear-
ing upon the face of the libel that such recovery has
been had, the Court is called upon to determine whether
the promoter is entitled to proceed in this Court and
obtain a judgment therein anew upon the subject-matter
of the judgment of the Trinity House or upon that judg-
ment itself. I think the suit cannot be maintained.
First : Not upon the original consideration of the pilot-
age; that original consideration is merged in the
judgment of the Trinity House (c). A Court of com-
petent jurisdiction having decided the facts set wth in
this libel, which were directly in issue before the Trinity
House, the party is ^stopped from trying those facts
again (d). The ruL of law is nemo debet bis vexari pro
eadciH causa. In this case the Siime allegations are made,
and if the cause proceeded the same facts will be i'l issue
as were in issue in the cause before the Trinity House (e).

{h) 2 Will. 4, c. 51, s. 6; the Blackham's case, 1 Salk. 290;

Nelson, 6 Rob. 227.

(rf) HuUcr's Ni>i Prius, 244 ;

Rex V, Oruudou, Co»vp. 315 ; i
Saund. 98; Com. Dig. "Ac-
tion," (I).

(e) Putt r. Royston, 2 Show.
211.

FOR LOWER CANADA.

To allow two several suits for the same cause of action in
two several Courts, would lead to a worse than useless
multiplication of law suits, would be highly vexatious to
parties, and would subject Courts to discredit from con-
trariety of co-existing decisions of equal authority in
separate tribunals upon the same matters (/). " Opposite
judgments would indeed be inextricable, as being flatly
inconsistent ; one of the Courts, for example, ordering a
thing to be done, and the other Court discharging it to
be done." Litispendence on these grounds is held a
good plea to an action (</), The party L j,d his option to
proceed for his pilotage either before the Trinity House,
or before the Admiralty. He has made his option
of the former, and by that he must abide as well in
respect of the execution of the judgment, as in the
obtaining of it.

Next as to the ground of action set forth in the second
article of the libel founded upon the judgment in the
Trinity House. If it be true that the original cause of
action is merged in the judgment, and of this I appre-
hend there can be little doubt, then the inquiry conies
simply to be, whether the Court of Admiralty can enter-
tain an action founded upon the judgment of a particular
Court, having concurrent juriisdiction with it, as to the
subject-matter of such judgment ; and whether such judg-
ment can be made the foundation of proceedings in rem,
in the Admii-alty. No trace is, I believe, to be found of
a suit founded upon the judgment of a domestic tribunal
being brought or maintained in the Admiralty. If such
a suit could be entertained, it must be founded on the
judgment itself as a title or a security for money, which
having none of the characters of a maiitime contract,
could not be tried or enforced in the Admiralty. In the

FlIUCBE.

t
II

i^i'.r.

(/) Harg. Law Tracts, 447 ;
6 Rep. 9.

( g) Sparry's case, 5 Rep. 61 .

''l?Wft^»H^'^W!^"» J"? -w*.?

A^^qr/»ii9fMLJi];^J||(IUff|tlPfiryJ!t^^i|iU fKi> , ■- 'VW^W •

CASES IN THE VICE -ADMIRALTY COURT

Ph(ebb. case of the Picimento, (h) execution was gi'anted in the
High Court of Admiralty, to enforce the judgment
of a Vice -Admiralty Court, which had been abolished
previously to the final execution of its sentence. But
here the promoter can still obtain from the Trinity
House, every remedy by way of execution, that he could
at any time have had from that Court. If a judgment of
the Trinity House could found proceedings in rem in the
Admiralty, this Court would become subordinate and
ancillary to the Trinity House, for the purpose of carry-
ing into effect the judgments of that Court, which cannot
be. The law in giving jurisdiction to the Trinity House,
settled also the nature of the execution by which the
judgment of that Court was to be enforced: and the
party in making his option in that Court, made option at
the same time of the remedy by execution to be had
there. If the proceeding here could be maintained, the
promoter would have the remedy by execution in the
Trinity House ; and that by attachment in the first in-
stance, and execution afterwards of the ship cmnulatke :
which remedies by execution might proceed concurrently
in different forms, and against different subjects, out of
two different Courts, altogether independent of each
other, which might lead to great oppression and incon-
venience {i).

Lastly. The promoter sets forth a promise on the part
of the consignee of the ship to pay the amount of this
judgment. Now, this is a personal promise by one not
capable of binding the ship, made upon land for the
payment of a debt of a third person. If this promise
could be made the subject of any action, it could only
have been of a personal action in the common law
courts. But I presume that this last allegation is not set

(A) 4 Rob. 360.

(»■) See La Madonna della Lettera, 2 Hagg. 289.

FOR LOWER CANADA.

forth as a substantive ground of action , but as a fact in
corroboration of the previously alleged causes of action.
The iibel is therefore rejected.

For Promoter, Ayhcin.

Gairdner, contra.

0.3

FlIOBni!.

In Moses v. Macferlan (2 Burr. 1005), Lord Mansfield said, " the
merits of a judgment can never be over-haled by an original suit,
either at law or in equity. Till the judgment is set aside or reversed,
it is conclusive, as to the subject matter of it, to all intents and pur-
poses."

CASES IN THE VICE-ADMIRATiTY COURT

John and
Makv.

Weilimihin, 2Mh October, 1830.

JOHN AND MARY— ^Iaushall.

Since the passing of the Act of the Imperial Parliameut, 2 Will. 4,
e. 51, the establishment of foes, in the Vice Admiralty Court here, is
exclusively in the king in council ; and the table of fees established
under this statute having been revoked, without making another,
it is not competent to the Court to award a quantum meruit to its
officers.

Soon after the promulgation in Lower Canada, of the
order in council of the 27th June, 183'2, framed under
the Act of the Imperial Parliament, 2 Will. 4, c. 51,
considerable difficulty was manifested at the table of fees
established by it in the Vice -Admiralty Court at Quebec.
After a careful inquiry into the grounds of this discontent,
Lord Glenelg, the Secretary of State for the Colonial
Department, recommended to the Lords Commissioners
of the Treasury, the revocation of that order, in so far as
related to the establishment of a table of fees in the Vice-
Admiralty Court at Quebec. This was effected by an
order in council, dated the 20th of November, 1835,
which was proclaimed in Lower Canada, on the 4th of
February, 1830. It had been Lord Glenelg's under-
standing that the revocation of the order of the 27th of
June, 1832, would revive the system previously existing.
It appeared, however, that the acting Judge of the Vice-
Admiralty Court took a different view of the case, and on
the revocation of the order of the 27th of June, 1832,
established a scale of fees for the officers of the Court, on
a principle of equitable remuneration for services per-
formed. This arrangement continued in force until
the 21st of September, 1830, when on the appointment

i I

FOR LOWER CANADA.

■',

of another judge, it was abandoned ; and from that time
no regular remuneration existed for the ofacers. The
question in this case was, whether the table of fees estab-
lished by the order in council of the 27th June, 1833,
having been revoked and annulled by the order in council
of the 20th of November, 1835, without substituting any
new table of fees in lieu o^ the one so annulled, the Court
could allow what might be considered reasonable fees for
services performed by the officers. The opinion of the
Court, after hearing counsel, was as follows :

Judgment. — Hon. Henry Black.

The case now before the Court, inconsiderable as is the
amount to which it relates, involves a question of very
great magnitude, being whether the table of fees to be
allowed to the officers of the Court of Vice -Admiralty in
Lower Canada, established under the authority of the
Act of the Imperial Parliament, to regulate the practice
and the fees of the Vice-Admiralty Courts abroad, and
to obviate doubts as to their jurisdiction (o), having been
revoked and annulled by an order of the King in Council
of the 20th of November, 1835, without substituting any
new table of fees in the place of that so annulled, under
this Act, it is competent to the Court to allow what may
be considered reasonable fees by the Court, for the labour
and attendance of the officers thereof. Since the revoca-
tion of this table of fees, and during the present season,
my predecessor has allowed fees to the officers of the
Court for their labour and attendance as a quantum meruit,
pro opcre ct lahore. I should have been glad to find that
the Court had the power to make an allowance of this
nature to its officers, for it would certainly be a great
liardsliip that they should be obliged to give their time,
skill, and labour without being entitled to demand a com-
pensation tlierefor; but after the most careful and

John and
Mart.

(a) 2 Will. 4, c. 51.

0(5

CASKS IN TlIK VICE-\DM1RAI,TV COURT

jojin and
Mary.

i !

lE :

i ^

anxious investigation of the subject that I liave been able
to make, I am led to the conclusion that the Court has
not the power to sanction such allowance {b). By the
ancient law of England, none having any office concerning
the administration of justice could take any fee or reward
for the doing of his office but of the King (c) ; and the
general rule is that they cannot take any more for doing
their office than has been allowed to them by Act of Par-
liament or by immemorial usage. This principle relative
to fees is but a consequence of the more general rule,
Nullum tallagium rel auxilium, per nos vel per hmredes
nostras, in regno nostro, ponafiir sen levetur, sine volnntate et
assensii, archicpiscoporum, episcoportim, comitmn, barommi,
militum, hurgensium et aliorum liberorum eommunium de
regno nostro {d), and is so considered by my Lord Coke, who
says that within this Act are new offices erected with new
fees, or old offices with new fees, for that is a tallage put
upon the subject, which cannot be done without the
common assent by Act of Parliament (e). It is, however,
said by Hmvkins that it cannot be intended to be the
meaning of the statute to restrain the courts of justice,
in whose integrity the law always reposes the highest
confidence, from allowing reasonable fees for the labour
and attendance of their officers ; for, the chief danger of
oppression, he adds, is from officers being left at their
liberty to set their own rates on their labour, and make
their own demands ; but there cannot be so much fear of
these abuses while they are restrained to kno\vn and
stated fees, settled by the discretion of the Courts, which
will not suffer them to be exceeded without the highest
resentment (/). Without here examining minutely this

(6) See the Sentence of Dr.
Croke in the case of the Hiram,
Stewart's Vice •• \dmitalty Rep.
687.

2 lust. 176, 208, 209.

(rf) St. 34 Ed. I.

(e) 2 Inst. 533.

(/) Hawkins's Pleas of the
Crown, B. 1, ch. 68, s. 3.

FOR LOWER CANADA.

autl' jrity from Hawkins, I may say that if there had been
:iO statutory provision whatever relating to fees in the ■
Vice-Admiralty Court here, I should have considered
whether I might have allowed reasonable fees to the
officers in the nature of a quantum meruit. But, since the
passing of the before -mentioned statute, I do not conceive
that such power belongs to any of the Vice-Admiralty
Courts. The power of establishing tables of fees seems to
me to be wholly and exclusively vested in the King in
Council. By the first section it is provided that it shall
be lawful for His Majesty, with the advice of His Privy
Council, from time to time, to make, ordain, and estab-
lish tables of fees to be taken and received by the
judges, officers, and practitioners in the said Courts, for
all acts to be done therein ; and also from time to time,
as shall be found expedient, to alter any such fees, and
to make any new table or tables of fees ; and by the third
section, " that the several fees so to be established, and
no other, shall from and after the making and establish-
ment thereof, and the entry and enrolment thereof, as
aforesaid, be deemed and taken to be the lawful fees of
the several judges, officers, ministers, and practitioners
of the said respective Courts, and such fees only shall and
may be demanded, received and taken accordingly." It
is to be observed that in the year 1809, the Provincial
Ordinance, 20 Geo. 3, c. 3, regulating the fees of the
Courts generally, and amongst them of the Court of Vice-
Admiri^Hy, having long expired, the then judge of the
Court of Vice-Admiralty established of his own authority
a table of fees regulating as well his own fees as those of
the officers of the Court. The legality of this table
having been questioned, and complaints made of the fees
established therein as unreasonably large, the sto+ute in
question was passed, whereby the intention of the
Imperial Ijegislature appears to have been to prevent the
recurrence of similar inconveniences, by vesting the

r 2

John and
Mauy.

CASES IN THE VICE -ADMIRALTY COURT

John and
Mary.

I *

power of regulating the fees in His Majesty, with the
advice of His Privy Council. The object of the statute
would, it seems to me, be entirely frustrated, if this Court
were to intermeddle by giving a quantum meruit to the
officers of the Court for particular services rendered by
them in their offices. Fees settled as a quantum meruit
by the Court are as much fees as those established by
statute, and fall, therefore, within the above prohibition.
All fees of office, properly so called, are presumed to have
a legitimate foundation in some act of a competent
authority, originally assigning a fair quantum meruit for
the particular service (g). Where the fee is established
by or under the authority of an Act of Parliament, the
statute is conclusive as to the quantum meruit. Where
settled by the authority of the Court, the subject is not
concluded thereby, but may try the reasonableness of the
sum claimed as a quantum meruit before a court of com-
petent jurisdiction (h), and obtain the verdict of a jury
thereon, when, and when alone, they become established
fees (i). If then this Court were to assign what it might
consider a reasonable quantum meruit to the promoter
here, as and for costs of contumacy to be paid to his
proctor, and to the officers of the Court for their services
in this cause, the amount of these costs would be fees,
not established under the authority of the foregoing Act,
and would fall directly within the prohibition contained
in the third section of that Act ; and if the Court could
exercise such a power in this particular case, it would be
called upon to exercise a like power in respect of every
service performed by the several officers of this Court in
the ordinary discharge of their several duties. Out of
which would grow a table of the usual fees of the Court,

( jf) See opinion of Lord Stowell
in the case of the Rendsherg, 6
Rob. 145.

(A) Viner, Abr. Fees, E. 4, 5,

and by Holt, C. J., 12 Mod. 609.
(t) Gifford's case, 1 Salk. 333,
Hardr. 351.

FOR LOWER <!ANAI)A.

01)

not virtually distinguishable from a table of fees to be
taken and received by the officers and practitioners of the
Court for all acts to be done therein, established by tlie
authority of the Court, tino flatu, which would be, in tlie
view I take of the subject, an usurpation of a power
which the Imperial Legislature has vested in His
Majesty, to be exercised with the advice of His Privy
Council ; and^might, besides, have the effect of introducing
anew all those inconveniences which it was the object of
this provision of the statute to remedy. In coming to
this conclusion, the feelings which it would otherwise
produce are mitigated by the consideration that the
officers of the Court have a claim for relief upon the
justice of His Majesty's government, which cannot fail to
receive every proper attention {k).

{k) Salaries were accordingly
assigned to the officers, to be com-
puted from the 2lBt of September,
1836.

The question as to the effect of
the order in council, of the 20th
November, 1835, on the system
ur.der which the officers of the
Court were remunerated, was af-
terwards submitted by the Secre-
tary of State for the Colonial
Department to the law officers of

the Crown in England (now Lord
Chief Justice and Lord High
Chancellor), whose opinion, given
17 May, 1837, was as follows:

" We are of opinion that the
Judge of the Vice- Admiralty
Court is not invested with au-
thority to establish such a table
of fees.

"J. Camphell,

" II. M. ROLFK."

JuHN AND

Mary.

' 1

1 \l

A-

CASKS IN Till'; VU;i;-Al>MIUAI.TY COUKT

k'' ':

' i

■ '.'

Thnndmj, 27t/i October, 1836.
NEWHAM— RoBsoN. '

Nkwiiah. Practice. The Court will require the lihel to be produced at a short

day, if the late period of the season, or other cause renders it neces-
sary.

Per Curiam.

This case turns entirely upon a question of practice,
but a question involving important consequences, and to
which I have accordingly given my particular attention.
It is of the last degi'ee of consequence, that in seamen's
suits the least delay should be incurred that is consistent
with the due and proper examination and adjudication of
them (rt). The rules and regulations made by His Majesty
in Council for the guidance of this Court (i), seem to me
consistent with all proper expedition in the conduct of
seamen's suits. Under these regulations, the action
having commenced by an entry in the Action Book (c), it
is competent for the master voluntarily to appear, with or
without bail, the vessel in the last case remaining under
arrest (r?). The appearance entered, the defendant is
entitled to an assignation on the plaintiff to exhibit a
libel within a time to be limited by the Judge (e). In the

(a) All admiralty suits in the
British courts are summary
causes, and justice is adminis-
tered levato veto. Gierke's Prax.
Tit. 19 ; 2 Bro. Civ. & Ad. Law,
413.

Ubicunque litis causa conveni-
untur, non diu detinendi sunt,
nee longum litis sufflamcn per-
mittendum, sed quam brevi potest
temporis spatio, causa maturanda
ob uavigandi necessitatem, cujus

periculum est in mora. Caesar, L.
1, Bel. Gal., Res maritimo) celerem
et inatahilem motum hahent. Loc-
cenius, Ins. Marit. Lib. 3. ch. 10,
8. 2.

(6) 27 June, 1832.

(</) Ibid. § 9.

(e) Ibid, § 12. See also Ough-
ton's Ordo Judiciorum, Tit. 54,
s. 2 ; Clerke, Praxis Supremie
Curia) Admiralitatis, Tit. 11.

FOR LOWER CANADA.

exercise of a legal discretion, and considering the season
of the year, the Court in this case, on the Soth instant,
assigned the following day at eleven o'clock, for the
plaintiff to exhibit his libel The simplicity of seamen's
suits generally, appears to the Court to be such as to
render the time allotted sufficient ; all that is required in
the libel being to state the hiring, rate of wages, per-
formance of the service, determination of the contract,
and the refusal of payment (/). If the plaintiff, how-
ever, had any grounds to claim an extension of this time,
and had made an application supported by affidavit,
tb,e Court might have extended the time(i/). In the
absence of such special ground, the Court cannot do
otherwise than dismiss the defendant from this cause (A).

Nkwiiam.

(/) Rules and liegulatiouH,
§ 15.

{y) Oughtun'sOrdoJudioiorum,
Tit. 65, s. 2.

(/*) Ibid. Tit. 56, s. 2; Browne's
Civ. and Adm. Law, 410; RultH
and llegulations, § 38.

I M;«f

CLANSMAN,— ScoTT.
Per Curiam.

This case being in the same situation as the last, the
same judgment must be entered. '

CASES IN TUli VICE-ADMIUALTY COVlil

Wednemlay, Zml November, 1830.
FRIENDS— Duncan.

FniENDS. An attachment awarded against a maHter for taking uut ul' tlio

jurisdiction of the Court his vessel, wh'ch had been regularly
attaolied.

Per Curiam.

The master appears to have taken the vessel out of the
jurisdiction of the Com-t, after she had been regularly
attached on the 3rd of July last, which is a direct con-
tempt against the authority of the Court {a). In a case
like the present one, if the Court had not the power of
vindicating its authority, its process would become
nugatory, and its jurisdiction annihilated. The party
is therefore endtled to a monition on the master to
shew cause why an attachment should not issue for a
contempt {b).

III

m. ill
I
1

(a) Eigden v. Hedges, 1 Lord
llaymond's Reports, p. 446 ; 1 C.
Rub. 332 ; Enoch Stanwood's case,
Stewart's Nova Scotia V. A. Rep.

{b) Oughton, Ordo Judioiorum
— De contemptu. Tit. xxx. ;
Tom. 1, p. 67; Gierke, Praxis
Supremse Curioo Admiralitatis,
Tit. 68, in fine.

FOU LOWliU CANADA,

FRIENDS— Duncan.

Practice. On return of a warrant, first default made, but no
prayer for a second default at the expiration of the two months from
the return of the warrant : proceeding discontinued thereby.

Ter Curiam.

Upon the return of the warrant in this suit on the flth
of July last, the parties cited not appearing, an entry of
the first default was made. It would have been competent
to the promoter, at the expiration of two months from the
return of the warrant, to have had the parties again pro-
nounced in default (ffl), but the promoter does not appear
to have prayed for a second default, at the time and in
the manner prescribed by the regulations. If the Court
could now grant a second default, it might do so for any
indefinite period of time after the entry of the first default.
It is true that it is said the master removed the ship out
of the jurisdiction of the Court between the first default
and the expiration of the two months, but this did not
prevent the promoter from obtaining a second default;
and it may be that the law gives a special remedy against
the ship in consequence of the rescue (ft). This, how-
ever, is not before the Court upon the present applica-
tion ; the sole question is, whether in the ordinary course
of the practice of the Court, it is competent to the pro-
moter to obtain the second default at any time he sees fit
beyond the period of the two months fixed by the rules

Frienus,

'. V.'. ■« H

(a) Kules and Regulations,
§ 10.

(6) If a ship be arrested by
process out of the Admiralty
Court, for a matter arising within
their jurisdiction, though she bo

rescued at land, the conusance of
the rescue belongs to the Admi-
ralty, otherwise not. Per Holt,
Chief Juslico, 1 Lord llaymoudV
Rep. 440.

CASES IN THi; VICE-AUMIKAI,Ty (JOURT

Frirnds. and regulations. Under the old practice the certificate
of the execution of the warrant was regularly continued to
four successive defaults, vith certain intervals between (c) :
by the new rules and regulations two of these are dis-
pensed with, and the continuance is operated by the rules
and regulations without a formal rule to that effect. It
is, however, not less a continuance, and the party can
only be cited, as it appears to me, on the day to which
the cause is continued: non constat that he was not in
attendance on that day, and not being cited he would
have a right to consider the promoter did not intend to
proceed to a pnmum decretum. I cannot, therefore, pro-
nounce the parties cited in default.

! n

II >ii

FOR LOWER CANADA.

Tuesday, 8th Nov. 1836.
CUMBEKLAND— Tickle.

Collision. — Owners of vessels are not exempted from their legal
responsibility, notwithstanding that their vessel was under the care
and management of a pilot.

Vessel giving a foul berth to another vessel, liable in damages for
collision done to the vessel to which such foul berth was given by her,
although the immediate cause of the collision was a vis major, and
no unskilfuluess or miscouduct was imputable to the offending vessel
after giving such foul berth.

This was a case of collision brought by the owners of
the brig Cornwallis against the brig Cumberland. The
libel pleaded that on the 5th of October last, tlie Corn-
wallis, a brig of 331 tons, arrived at tlie quarantine
station at Grosse Isle, with a very heavy gale blowing
from the eastward, and brought up at about half after
ten in the forenoon, and cast her small bower anchor,
and afterwards let go her best bower anchor; that the
brig Cumberland ai rived at the same quarantine ground
between the hours of eleven and twelve of the same
day, and let go her anchor right a head, and to the wind-
ward of the Cornwallis there being at tiie time much
more than sufficient sea room on either side of the Corn-
wallis, for the anchoring of the Cumberland without danger
to either vessel : that about ten minutes afterwards the
Cumberland let go her second anchor, which brought her
very near to the Cornwallis, tlie wind continuing to blow
from the eastward, and ga»-e a foul berth to the Cornwallis ;
that on the same day tli»' Cumberland drove upon the
Cornwallis, her anchor stock catching fast hold of the
chain cable of the suiaU bower anchor of the Cornwallis
slipped up to her bows, came into collision with the

CUMBKRLAND.

Ir'i

H-)

! ' ftitfi

CASES IN THE VICE-ADMIRALTY COURT

Cumberland.

Mi 31

11 ^^

Oornwallis, and passed her, was brought up by the anchor
stock catching as above, and by the sudden jerk broke
the large bower anchor chain cable of the Cornwallis, and
did various other injuries to the Cornwallis specified in
the libel; which collision and injury it was alleged pro-
ceeded from the inattention or want of skill of the per-
sons on board of the Cumberland.

On the part of the owners of the Cumberland it was
pleaded in their responsive plea, that she anchored at the
quarantine station ' ♦ Grosse Isle on the 5th of October, at
about eleven in the afternoon, letting go the starboard
bower anchor, and veering about forty fathoms chain,
and then let go the larboard bower anchor veering out
thirty fathoms, and paying out at the same time thirty
fathoms more of the starboard anchor, then riding with
the anchors down, the gale increasing in violence, shortly
after sent down the top-gallant yards ; that the Cumber-
land thus rode out that flood, the following ebb, and a
part of the next flood till about half past ten of the clock
in the afternoon, the gale then blowing a perfect hurri-
cane, the starboard chain cnole broke, and the strain then
coming entirely on the larboard bower anchor, drew the
fluke of that anchor straight, thereby rendering it useless,
when the Cumberland was driven foul of the Cornwallis,
and driving before the wind and tide, the stock or
straightened fluke of the Cumbfrland's auclior came in
contact with the Cornwallis's chain and slipped up to the
bows of the Cornwallis. This was followed by an allega-
tion that the collision did not occur through the inatten-
tion, neglect, or want of skill ox thv commander and crew
of the Cumberland, but on the contrary, that the cjin-
mauder and crew thereof used every •.'X.=:rtion in their
power to prevent the said collision, and to protect the
Jornwallis against all damage and loss.

The case was argued by Mr. Okill Stuart i'ov the
Cornwallis, and Mr. Duval, K. C.^ fur Uie Cumberland.

FOR LOWER CANADA.

Judgment. — Hon. Henry Black.

The facts do not appear to admit of doubt; indeed
there is no essential difference between the material factj
as stated by the parties in their several pleadings or by
their witnesses. The Cornwallis being anchored at Grosse
Isle, the Cumberland arrived at that station with a strong
easterly wind and a flood tide, and anchored to the wind-
ward of the Cornwallis, at a distance of between sixty and
seventy fathoms. These vessels rode out the remainder
of the flood tide, the following ebb tide, and a portion of
the next flood tide, the wind continuing to blo^y from
the eastward, and increasing in violence. At the end of
about ten hours from the anchoring of the Cumberland,
at about half aftei ten in the night, the starboard chain
cable of the Cumb ^rland broke, and the whole stress of
the ship coming upon the larboard anchor, straightened
the fluke of it, and the Cumberland drove foul of the
Cornwallis. The Cumberland driving before the wind and
tide, the stock or fluke of her anchor hooked the Corn-
wallis's chain cable, ran up to the bows of the Corn-
wallis, and the collision complained of then took place.
In cases of collision, the collision and damage may
arise from the fault or misconduct of the vessel suf-
fering from the collision : or the accident may have
happened from unavoidable circumstances, without fault
on the part of either vessel ; or both parties may be to
blame, as where there has been a want of skill or due
diligence on both sides : or the loss and damage may be
owing to the fault or misconduct of the vessel charged
as the wrong doer. In the two first cases no action lie"*
for the damage arising from the collision. la the third
case the law apportions the loss between the parties as
having been occasioned by the fault of both of them.
In the present case, the question is whether there was
fault or misconduct on the part of the Cuml)erland, and

CUHBEnLAND.

ft" ;

78 CASES IN THE VICE -ADMIRALTY COURT

CcMBKRLAND. ^^^^ qucstioii 8661118 to depend upon whether, according
" ~' ' to the rules and practice of navigation, the master of the
Cumberland was justified, under all the circumstances, in
bringing the Cumberland to anchor at the place and in
the manner which he did, respect being had to the situa-
tion and anchorage occupied by the Cornwallis when the
Cumberland was brought to anchor. If there were mis-
conduct or want of proper care and prudence in the
master of the Cumberland in anchoring that vessel in
the place he did, and her being so moored caused the
accident, then the Cumberland is answerable in damages
for the collision, although it may have proceeded imme-
diately from the irresistible violence of the wind and
waves. For, if liic collision be preceded by a fault, which
is its principal or indirect cause, the offending vessel
cannot claim exemptioi. from liability on the gi'ound of
the damage proceeding from inevitable accident, the rule
being quando culpa j^rcecessit casum tunc cams fortuitus non
excusat. But, if on the other hand there was no want of
proper nautical skill and discretion in so anchoring this
vessel, the collision must be considered as having arisen
from a m major, for which the Cumberland is not
answerable. To enable the Court to come to a decision
upon the case, it is necessary that a correct opinion
should be formed upon the following questions, which
are of a nautical character: — 1. Whether, previous to
and at the time of the occurrence of the accident, the
Cumberland was properly moored and anchored, relation
being had to the situation of the Cornwallis, and the state
of the wind and tide, at the time when the Cumberland was
so moored and anchored ? 2. "Whether the accident arose
from unavoidable circumstances, without fault being attri-
butable to either of the ships or their masters, or whether
it proceeded from the fault of either of the said ships or
their masters, and if so, from which of them ? Availing
myself of the power which this Court has to refer to some

FOB LOWER CANADA. 7*1

gentleman conversant in nautical affairs, I have obtained Cumberland.
the assistance of a captain in the Royal Navy, now
engaged in an important public service here, upon whose
judgment and opinion I shall feel it my duty to rely.

Captain Bayfield (a), who had examined the evidence
and heard the arguments and observations of the counsel
in the cause, then delivered the following written opinion :
— Having deliberately weighed all the circumstances
bearing upon tliis case as set forth in the evidence on
either side, the following is my conscientious opinion
thereon, and the grounds upon which it has been formed :
— 1. In answer to the first question submitted to me,
or as having relation to it, I must remark, that since the
Cumberland's anchors did not drag by reason of the
badness of the anchoring ground, but, on the contrary, one
cable parted and the other anchor became straightened,
whilst the Cornwallis's single anchor and chain cable
subsequently bore the strain of the vessels, there is
strong reason to infer that the cables and anchors of the
Cumberland were not sufl&cient, but they might have
been imperfect unknown to the master or owners, since
it does not appear in evidence that they were less than
the established size for vessels of her tonnage. I am of
opinion that the Cumberland did not give the Cornwallis
what is technically termed " a foul berth/' since it
appears upon evidence that she was so anchored as to
allow sufl&cient room for the vessels to swing clear of
each other. But, on the other hand, I am of opinion,
and I believe it to be a generally received opinion among
seamen, that it is imprudent and improper to anchor
directly a-head or directly astern of another vessel, in the
direction of the tides or prevailing winds, unless at such
or so great a distance as would allow time for either
vessel to take measures to avoid collision in the event of

i ';iT

I ,' i

(a) Now Rear Admiral Rayileld.

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CASES IN THE VICE-ADMIRALTY COURT

CuMBEBtAND. eitliGr driving from their anchors. It is, moreover, the
usual practice not to anchor near to and directly in
another vessel's hawse, that is, directly a-head and in the
direction of the wind and tide, as the Cumberland did
in relation to the Cornwallis, and in books which treat on
seamanship it is mentioned as a thing to be avoided, not
only to prevent accidents from driving in bad weather,
but also in order that either vessel may be able to get
under weigh without risk of collision with the other.
Now, at Grosse Isle, there are no winds which, could
endanger a vessel excepting those which blow directly up
or directly down the river, in or very nearly in the
direction of the tides, and these are well known to be
prevailing winds. I therefore consider that it would have
been wrong to anchor the Cumberland in the position which
she occupied in relation to the Cornv/allis at any time;
but under the circumstances in which the Cumberland
anchored, at or nea...' the commencement of an easterly
gale, in the month of October, I conceive it to have been
highly incautious and imprudent in the pilot of that
vessel to have anchored her in the position which he did
previously to the collision ; and in so far as there was not
due precaution and prudence exercised by the pilot,
I conceive that the Cumberland was not properly moored
and anchored. 3. In answer to the second question,
That the Cumberland was anchored directly a-head of
the Cornwallis in the direction of a strong wind and
flood tide, and so near as not to allow of time for any
measure to be taken to avoid collision in the event of
her driving or parting from her anchors, either on lier
own ))art or that of the Cornwallis, is, I think, fully
substantiated by the evidence. That she was anchored,
as alleged, directly a-head, and in the direction of the
wind and tide, is moreover proved by the circumstance of
her anchor hooking the chain cable which the Cornwallis
was riding by. I do not, therefore, think that the accident

FOR LOWER CANADA.

§$■

arose from unavoidable circumstances, since a common Cumberland.
degree of prudent precaution, on the part of the pilot of
the Cumberland, would have prevented its occurrence.
The master of the Cumberland appears in evidence to
have admitted that it was improper to have anchored
where he did, and to have told the pilot to anchor further
out. How far the master of the Cumberland is legally
answerable for the acts of the pilot, or whether he be
answerable at all, it is not for me to decide, but as it is
generally considered that the pilot has the sole charge
of the vessel, and that the master cannot take the charge
out of his hands without risking the insurance, I am of
opinion that the fault is imputable to the pilot of the
Cumberland alone.

The Court. — Captain Bayfield exempts the master
from blame, and attributes the fault which gave occasion
to the damage to the pilot ; but, so far as the present suit
is concerned, it is immaterial whether the fault be with
the master or with the pilot. It is settled law that when
collision takes place in consequence of the fault of the
pilot, the ship doing the wrong is not the less answerable
for the collision. I esteem myself particularly fortunate
in having had such assistance upon the present occasion,
and adopting the opinion of Captain Bayfield, I decree in
favour of the Cornwallis, and assess the damages at
63/. 12s. 9rf.

Note. — Upon Captain Bayfield's making his report, and
it being read in the presence of the counsel, the Court
observed to Mr. Duval, the counsel for the Cumberland,
that it appeared from Captain Bayfield that the damage
had arisen, not from the fault of the master, bv c from that
of the pilot, and asked him whether he wished to be
heard upon that point. The counsel for the Cornwallis
(Mr. Stuart), referring to the case of the Neptune the

'I 1

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CASES IN THE VICE-ADMlRAI-TY COURT

I' I

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M' OP

Cumberland . Second (rtf), the counsel for the Cumberland said that he
acquiesced in the law of that case, and admitted that the
ship was answerable for the act of the pilot, upon which
judgment was given accordingly. The case of the
Neptune the Second occurred shortly after the passing
of the Statute 52 Geo. 3, c. 89, and the judgment
of Lord Stowell appears to have been founded upon
the ancient law, as it originally stood unaltered by any
legislative enactment. The G Geo. 4, c. 125, repealing
the statute 62 Geo. 3, c. 39, — which was also a con-
solidating Act, and contained some general provisions, —
exempts the owners from all liability for loss or damage
arising from the neglect, default, incompetency, or
incapacity of the pilot. The words of the Act 6 Geo. 4,
c. 125, s. 55, are these : " No owner or master of
any ship or vessel shall be answerable for any loss or
damage which shall happen to any person or persons
whomsoever from, or by reason or means of, any neglect,
default, incompetency, or incapacity of any licensed pilot
acting in the charge of any such ship or vessel, under or
in pursuance of any of the provisions of this Act." It
makes it obligatory upon the master in all cases to take
a pilot, and subjects him to a certain penalty in default
of doing so. The provincial statute 45 Geo. 3, c. 12,
s. 13, provides "that if the master of any ship or vessel
coming to the harbour of Quebec, not having on board a
branch pilot, shall refuse to receive on board and employ
any branch pilot who shrll offer to go on board and serve
as such, in the river St. Lawrence, the master of such
vessel shall pay to such branch pilot, who shall have so
offered himself, half pilotage to the harbour of Quebec,
from the place at which such pilot shall have so offered."
This is the only clause in the provincial statute, relating
to the duty of the master as to receiving a pilot, and it

(a) 1 Dods. Adm. Rep. 467.

FOR LOWER CANADA,

contains no clause similar to that of the 55th section of
the English Pilotage Act, 6 Geo. 4, c. 125, or of the
30th sect, of the repealed Act, 52 Geo. 3, c. 30. In
the case of Fletcher v. Braddick (ft), it was decided that if
a ship be chartered to the Commissioners of the Navy, as
an armed vessel, and an injury be done to another vessel
by the misconduct of the persons on board of the former,
while a commander of the navy and a King's pilot are on
board, an action for the injury may be sustained against
the owners of the chartered ship. If the circumstance of
there being a pilot on board had been a good defence, it
would not have been overlooked there. The next case in
the order of time, after the case of the Neptune the
Second, was that of Carruthers f . Sydebotham (c). The
decision in this case, which was for the plaintiff against
the underwriters, appears to proceed upon two principles ;
1st, that the master being obliged to take the pilot under
a penalty, the acts done by the pilot were to be considered
as the acts of the pilot himself, and not of the master ;
and 2ndly, that the act of the pilot could not prejudice
the assured, as the Pilot Act obliges all vessels, under a
penalty, to take the first pilot who presents himself and
his license {d), and such pilots are said to have the charge
of ships while in the river (e), and as it was specially pro-
vided by the 52 Geo. 3, c. 39, s. 30, " that no otvner or tnastcr
of any ship shall be ansiverable for any loss, nor he prevented
from recovering upon any contract of insurance by reason of
any neglect, default, 8fc., of any pilot taken on board under
any of the provisions of that Act." The controversy was
between the insurers and the insured upon a personal
contract, and the question was whether the act producing
the damage was an act of the assxired by his servant, or a
peril of the sea. There was privity of contract between

CtJMBBRtANr.

(6) 2 N. R. 182 E. ; 46 Geo. 3.
(r) 4 M. & S. 77, E. ; 55 Geo. 3.

{d) 37 Geo. 3, c. 71, s. 24, 37.
(e) Sect. 36,

I i

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CASES IN THE VICE -ADMIRALTY COURT

!•■(

Cumberland, the parties, here it was tort between entire strangers, and
the question was whether the loss should be incurred by
the ship absolutely without blame, or by the ship pro-
ducing the damage by the fault of its pilot. The provincial
statute imposes no penalty upon the master for not taking
a pilot ; it merely subjects him to half pilotage dues. In
the case of the Neptune the Second, as well as in the case
before the Court, the proceeding was in rem. The case
of The Attorney General v. Case (/) turned principally
upon the question whether the 30th section of 52 Geo. 3,
c. 39, extended to and embraced acts of pilots done under
the Liverpool Local Act. Lord Chief Baron Thompson,
in pronouncing the judgment of the Court, says expressly,
" there were several cases quoted in which the masters
and owners have been held liable, though in point of fact
there had been a pilot on board ; but those were cases
prior to the 53 Geo. 3." It is to be observed, that the
Liverpool Pilotage Act, which came under the considera-
tion of the Court, in the last-mentioned case, contains a
clause similar to the above clause in the provincial Act ;
and upon the construction of the clause in the Liverpool
Local Act, Lord Chief Baron Thompson says, " in short,
this Act imposes no penalty on the master, even for going
to sea without a pilot, but only renders him liable to pay
the wages which the pilot would have been entitled to, if
he had thought fit to accept his services : now there is a
penal clause in the 52 Geo. 3, &c." The judgment in
that case was for the Crown. The case of Bennet v.
Moita ig), which was an action against the master, turned
entirely upon the construction to be given to the aforesaid
30th section of the general Pilotage Act ; and the case of
Kitchie v. Bowsfield (h) turned also upon the construction
of the same clause, in an action against the master.
Several of the foregoing actions are actions on the case.

(/) 3 Price 302 ; 5" Geo. 3.
iff) 7 Taunt. 258 H ; 37 Geo. 3.

(A) 7 Taunt. 309; 57 Geo. 3.

Cll

roR LOWKH CANADA.

the gist of which is negligence or misconduct in the de- p"""""*^"";
fendant or his servants within the scope of their duty.
The authority of the case of the Neptune the Second, has
been questioned only with reference to the 30th section
of the 52 Geo. 3, which is not noticed by Lord Stowell.
The liability of the master can only arise from his own
act or default, that of the ship seems to arise from the act
of the ship, without reference to the person or persons in
the ship from whose fault it may proceed. The principles
which regulate the action upon the case do not seem to
apply to a proceeding in rem. It is laid down in Browne {i)
that proceedings in rem take place " in actions for collision,
where there is no pretence for making the owner answer-
able or demanding reparation, as against him beyond the
value of the ship " (k). That the English cases are based
upon the special provision of the English Pilotage Acts,
is stated by Bell (/), one of the most profound writers on
commercial law, who, at the same time that he refers to
those cases, refers to the case of the Neptune the Second,
as settled law. On referring to American authorities we
find that it was decided by the Supreme Court of Penn-
sylvania in Bussy v. Donaldson (m) that the owner of
a ship doing damage to another is liable, though the ship
was in the charge of a pilot. Chancellor Kent, in his
Commentaries recognizes the same principle (n), and such
is plainly the opinion of another distinguished jurist, in
his notes to Lord Tenterden's Treatise on Shipping (o).

(t) Civ. & Adm. Law, ii. 397.

{k) For against the master,
according to Bynkershoek there
is remedy in solidum, and be-
yond the value of the ship.

(/) Bell's Com. 58.3.

(m) 4 Dallas, 206.

(n) Vol. 3, p. 135.

(o) Mr. Justice Story's edition
of the work, Part II., ch. vii., s. 8,
in notes.

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CASES IN THE VICE-ADMIRALTY COURT

Tuesday, Sth November, 1836.

SAEAH — Sinclair.

Sarah. Application for an attachment for contempt for resisting the pro-

' cess of the Court rejected ; the statement of the officer being oontro-

Terted by the affidavits of two other persons present at the arrest.

Per Curiam.

Tr this case the motion for an attachment for contempt
uf^csirst Daniel Sinclair, the master of the Sarah, is
fciuriJed upon the affidavit of John Tolland, who was
eiorloyed by the marshal of the Court to execute the
w^sirant of personal attachment against him, and who
swears that upon his going on board the Sarah to execute
the warrant on the Sth instant, Sinclair violently assaulted
him, threatened to shoot him, and struck him, using
various opprobrious terms towards him and towards this
Court, and refusing to obey the tenor of the warrant.
The charge contained in this affidavit is of a grave cha-
racter, and would, if supported, have called for adequate
punishment {a). The Court is bound to support its
officers in tho discharge of their duty, and will not fail
upon all proper occasions to do so. But here the facts
set forth in the affidavit of Tolland are directly contra-
dicted in the affidavit of Sinclair, corroborated by the
affidavits of the mate, and of the carpenter of the ship.
The rule for an attachment must therefore be discharged.

(«) Gierke, Prax. Cur. Adm. Tit.- 68, in tine.

FOR LOWER CANADA.

Tuesday, Sth November, 1836.

SARAH — SiNCLAiu.

Steward displaced and puiiAshed without cause is not bound to
serve as cook, and may recover his wages.

Demand for watch, &c., taken by the master from the seaman's
chest may be joined to the demand for wages.

Judgment. — Hon. Henri/ Black.

The promoter shipped as steward on board the Sarah,
whereof the defendant is master, on a voyage from
Liverpool to Quebec and back to a port of discharge in
Great Britain. Three weeks or a month after the vessel
went to sea, the master, being dissatisfied with the
manner in which the promoter discharged his duty as
steward, displaced him, and put him out of the cabin,
making him do the duty of cook and some of the duties
of an ordinary seaman. After the promoter was so
displaced the defendant inflicted punishments upon the
promoter without adequate cause, and which would have
been excessive and unwarrantable if cause for punishment
had existed. It will be the duty of the Court to examine
the evidence relating to this part of the subject more
particularly in another action now ripe for judgment in
this court, between the same parties, wherein the pro-
moter claims damages for the acts of violence which in
this suit are set forth as grounds for his discharge. The
power of the master to displace any of the officers of the
ship is undoubted, but he must be prepared to shew that
he had lawful cause for so doing. In this case there is
no evidence to shew such misconduct or neglect of duty,
or insufficient discharge of duty on the part of the pro-
moter, as to justify the defendant in displacing him.
But, even if there had been sufficient reason for his

Sauah.

Sarah.

CASES IN THE VICE -ADMIRALTY COURT

discharge from the office of steward, I do not think that
he was bound to remain with the ship after her arrival at
the first port of discharge. His contract is to serve as
steward during the voyage, and the master discharging
him from this duty, he is discharged from the ship and
entitled to his wages, unless some cause of forfeiture be
shewn, which is not set up in this cause. I shall therefore
award wages.

Then, as to the demand in the promoter's libel for his
watch, with the key and seal attached to it, bank notes
and coin, which he alleges the defendant took out of his
the promoter's trunk at sea, against his will, and refuses
to deliver up to him. It is objected that this ground of
action ought to be made the subject of a separate action,
and cannot be joined with the demand for wages. To
support this objection would be to encourage a multi-
plicity of actions, very repugnant to the simplicity which
obtains in this Court in controversies of this nature. The
demand for the seaman's chest and apparel is usually joined
with the demand for wages, and I know no reason why the
watcL or money or other effects of the seaman in his
chest, or which had ceased to be there by the act of
the master, should be distinguished from the apparel
which usually forms the sole contents of the seaman's
chest. In decreeing the wages, I shall at the same time
decree that the defendant do dehver up with the pro-
moter's chest these goods and monies, which ought not
to have been removed from it. (a)

(a) The Louisiana, 2 Peters, Ad. Rep. 268.

FOR LOWER CANADA.

SARAH — Sinclair.

Ten pounds sterling damages decreed to a steward for assaults
committed upon him by the master, without caiue.

Judgment. — Hon. Henry Black.

This is a suit for damages brought by the steward
against the master, for various assaults alleged t^
have been committed by the latter on the former, on
the high and open seas during the voyage of the
Sarah to this port. It appears that the promoter, having
shipped as steward, was, v.pon some dissatisfaction on
the part of the master with the manner in which the
promoter discharged his duty as steward, displaced from
that office, turned out of the cabin, made to act as cook
and to do duty before the mast. It was subsequent to
his being so displaced that the several assaults com-
plained of in the present suit occurred. The evidence
relating to these assaults establishes that the defendant
struck the promoter with his fists, and with instruments
not fitting to be used for purposes of correction ; that
the defendant on one occasion made the promoter, who
is not a regular seaman, go aloft for the vane, which the
service of the ship does not seem then to have required
to be done, and which moreover could not be done by
the promoter without danger to his life ; and upon his
failing to accomplish this object after a second effort the
defendant made him strip and go upon his knees and
beg his pardon. This incident occurred at night when
the ship had a lift over, and when if the promoter had
lost his hold he probably would have fallen into the sea
and been drowned. The observation made by the
defendant to the promoter when he was going up the

Sarah.

■>. I

OASES IN THE VICE-ADMIUALTY T?OURT

Sabab. shrouds must not be passed over, as it serves to shew
the temper of mind of the defendant at the time. He
asked him whether he had made his will and to whom
he had given his watch and money. It is further in
proof that, on another occasion during the voyage, the
defendant took the promoter out of the galley and made
him take off all his clothes, with the exception of his
trousers, and according to one witness tied him to the
windlass, and according to this and s " eral other wit-
nesses, took him upon the poop ana made him fast,
having his body naked, to the spanker boom on a very
cold morning, — so cold that there was suow and ice on
the deck, — the wind blowing from the north, and kept
him there about fifteen minutes: that the defendant
ordered a seaman to draw him a bucket of water, which
he emptied over the promoter's head and person, and
kept him shivering with cold some ten minutes after.
There is no evidence of the promoter's having done
any acts calling for correction ou the part of the master ;
he had at the time ceased to act as steward, but if he
had committed acts requiring (correction that correction
must have been reasonable and moderate without any
admixture of cruelty. Here the acts complained of are
acts which appear to be dictated by a malignant spirit,
the defendant availing himself of his power as master of
the ship to gratify a personal enmity towards the promoter
who was entitled to his protection. Independently of a
general course of ill-treatment which the promoter
appears to have been subjected to, the ordering him to
bring down the vane, and the exposing him, with his
body naked, on a cold morning, and throwing water over
him as above adverted to, are acts of extreme cruelty,
for which no circumstance of palliation can be offered.
In assigning the damages, consideration must, however,
be had to the means of the defendant, as well as to the
nature of the injury done by him ; and bearing in mind

FOB LOWER CANADA.

the costs to which the defendant stands liable on these
proceedings, I decree the sum of 10/. sterUng(o).

Sarah.

(a) " It is of importance that
it should be known to those tvho
have the command of ships, that,
under the colour of discipline,
they are not to inflict unnecessary,
icanton, and unlawful punishment
upon those under their control,
when distant from the shores of
their own country, friendless and
unprotected, and that rash and
improper chastisement ought not,

must not be resorted to." Per
the Recorder of London, in pass-
ing sentence of transportation for
life upon Richard Edwards and
John Woodcock, the master and
mate of a merchant vessel, tried
before the Central Criminal Court
on the 7th April, 1837.— Nautical
Magazine for May 1837, No. 6,
Vol. i.

'11

Ms,

CASES IN THE VICE-ADMIRALTY COURT

Vbrus.

Thursday IQth November, 1836.

VENUS— Butters.

It is a good defence in a suit for wages by a seaman, that he oould
neither steer, furl, nor reef.

Judgment. — Hon. Henry Black.

In this case the promoter shipped at Kingstown in
Ireland, as a seaman, at the full wages of the other
seamen engaged on board the vessel, but did not sign
the ship's articles, and having come with the ship to
Quebec, now claims the balance of his wages on the
voyage out at the rate of 3^. a month, he having received
one month's wages in advance upon being shipped. The
defence set up to this claim of wages is that he is no
seaman. It is proved by the officers of the ship that he
could neither steer, furl, nor reef, and that his services
were not worth more than 1/. a month. The promoter in
receiving one month's advance appears to have received
more than, under any circumstances, he would have been
entitled to (a). I am not called upon in this case to
determine whether a man being no seaman, shipping as
a seaman, can recover anything in the shape of wages
whatever. Such conduct has very much the appearance
of a gross fraud on the master and ship, and may en-
danger the ship and the lives of all on board. If the
individual here had been left in care of the ship's rudder,
before his ignorance had been ascertained, without the
supervision and presence of one of the officers of the
ship as afterwards was found necessary, — the loss of the
ship might have been the consequence. When the

(a) Basten i\ Butter, 7 East, 479.

FOB LOWER CAWADA.

question of the right of a person so situated to a quantum
meruit shall arise it will deserve consideration, whether
the fraud of the party does not exclude the claim for a
quantum meruit founded on equitable considerations, and
whether there are not also considerations of public policy
which are repugnant ; to any allowance whatsoever being
made to a mere landsman shipping himself as an able-
bodied seaman.

Vends.

Maguire, for promoter.
Gairdner, contra.

The George Gordon.—" Nautical Magazine for February. 1837
No. 2, Vol. i., p. 121.

CASES IN THE VICE -ADMIRALTY COURT

Saturday, 12th November, 1836.
PAPINEAU— Maxwell.

Papinkau. ^he mate of a vessel is chargeable for the value of articles lost by

■ -^ ^ his inattention and carelessness ; and the amount may be deducted

from his wages.

Judgment. — Son. Henry Black.

This was an action brought by the mate of the brig
Papineau, for wages claimed upon the termination of a
voyage from Quebec to the West Indies and back again.
There is no difference between the parties as to the
amount of wages earned, these are admitted to be
181. 138. 9d. currency. The defence set up by the master is
general misconduct, on the part of the mate, and a specific
act of negligence in shipping rum on board of this vessel
in the West Indies, whereby the head of one puncheon, of
the value of 12^. currency, was stove in, and its contents
spilled and lost. This being the only act of misconduct
set up by the defendant, the attention of the Court is
confined to it. It appears that the mate about the
2nd or 3rd of September last at the port of Kingston,
in the Island of St. Vincent, received on board the
vessel, about fourteen puncheons of rum from a drogher.
To remove these from one part of the hold of the vessel
to another there were used skids, that is, boards choked
or fixed and steadied with wedges to roll the puncheons
upon. One of these skids not being choked slipped,
and in consequence the head of one puncheon was stove
in and its contents lost. The operation was performed by
candle light, with two men not belonging to the crew,
under the superintendence of the mate. It is the gene-
ral duty of the mate to take in the cargo and deliver it,
and in the discharge of that duty, in this instance, he

i !

J'.

FOR LOWER CANADA.

was bound to see that the skids were properly fixed, and Papiheau.

is responsible for any damage arising from their being, as

they appear to have been, insufficiently steadied, and

not choked, as is usual. The loss must be made up by

some person, either the owners of the ship, the master

and crew, or the mate. The two former are entirely

exempt from blame. It does not appear that the master

or the crew participated actively or passively in this act

of negligence, and hard as it may fall upon the mate, he

being the person in fault, must indemnify the sufferers (a).

The rule of law as to the liability of the officers and crew

of a ship to shippers cannot be relaxed without infinite

mischief. I decree, therefore, that there be deducted

from his wages the 12^. value of the puncheon lost, and I

decree the balance of his wages being £G ISs. Qd. (b)

■ I

Cairns and Dickenson, for the mate.
ffuot, contra.

(a) The New Phoenix, 2 Hag-
gard, 420 ; the Belvidere, 1
Peters, Ad. Rep. p. 258.

{b) A chief mate suing for
wages in the Court of Admiralty
is bound to shew that he has
discharged the duties of that
situation with fidelity to his
employers. Amongst the most

important of these duties are a
due vigilance, care and attention
to preserve the cargo from rob-
bery; but he is not responsible
for any embezzlement that may
occur, not arising from any neg-
lect of duty. — The Duchess of
Kent, Newby, 1 W. Rob. 285.

,;'■■'.' I

^ammm

CASES IN THE VICE-ADMIRALTY COURT

Sophia.

Friday, l%th N(yv<mber, 1836.

SOPHIA— Easton.

Master admitted as a witness in a case of pilotage. Damage oooa-
sioned to the ship by the misoonduot of the pilot, may be set ofP
against his claim for pilotage.

Judgment. — Hon. Henry Black.

This is a suit for services rendered by the promoter,
who is a branch pilot, to the brig Sophia, in piloting her
from Bic to Quebec, in October, 1834. The amount
charged for the pilotage stands admitted. The defence
set up by the owners, who have intervened in the suit
against the ship, is that the promoter conducted himself
so negligently and unskilfully in bringing the vessel to,
and mooring her in the harbour of Quebec, that she went
foul of another ship, whereby the bowsprit, jib-boom,
fore-top-gallant-mast, bulwarks, and stanchions of the
Sophia were carried away, and damage suffered to an
amount exceeding the sum claimed for pilotage. The
principal witness offered on the part of the defence is
the master of the Sophia, who was master at the time
the collision took place. None of the crew who were on
board at the time are now here, and this is the fourth
voyage of the ship to Quebec since the accident happened.
The harbour-master proves the condition of the ship,
after the occurrence of the accident ; and the superin-
tendent of pilots proves that the ship was in a damaged
condition at that time, and that the master preferred a
written complaint to him against the promoter. The
questions which arise in this case are, first, whether the
master is a competent witness ; and the next, whether
the defendants can set up the collision and damage as a

(a) 2 Rob. 2()7.

(b) Edw. 235.

t •■

Mt^

FOH LOWER CANADA.

defence to the present action. The question of the com-
petency of the master as a witness in suits with seamen
came under the consideration of the High Court of Admi-
ralty in the case of the Exeter (</), and tlie case of the
Lady Ann (/>). In the former of these cases, the question
turned upon the vaUdity of a discharge of the mate by
the master, without calling the attention of the passen-
gers and crew to the circumstances attending it ; and th^
master was virtually called upon to justify himself, ana
relieve himself from the responsibility incident to the
discharge, if it were an improper one. The last of these
cases, which occurred as late as 1810, was i proeeeduig
against the owners ; the defence set up was desirtion,
not iiiilicating the master individually townnls the
owners, and Lord Stowell held the muster to be a com-
petent witness ; if this be true in the case of a seaman's
suit against the ship, it cannot be less so in the case of
a pilot. The master is not answerable, even to the
owners or to any otlier persons, for the acts of the pilot
in whom the navigation of the ship is (c). The evidence
of the master must, however, be carefully weighed. If
he be the only witness upon the present occasion, the pro-
moter has to impute it to himself, in not having brought
his action earlier ; and the delay in bringing the action,
which is altogether unexplained on his part, constitutes
a presumption against the promoter, that the demand has
no foundation in justice or equity. The complaint of
misconduct having been made in regular course to the
superintendent of pilots, and no measures taken by the
promoter to enforce his claim at that time, his inaction
has very much the appearance of an acquiescence in the
justice of the defence now set up on the part of the
owners. Taking the evidence of the master to be legal

»t

Sul'IIIA.

> "111

\\\ -I

i-M

lit

l;--t

■1 >* ■

4$, -.

. ',1

CASES IN THE VIOE-ADMIBALTY COURT

SoFiiiA. evidence in the cause (d), the misconduct complained of
^ appears to me to be sufficiently established.

Then the only remaining inquiry is, whether the
damage suffered thereby may be made a set-off against
the promoter's demand. Courts of Admiralty may, and
do entertain pleas of set-off, upon general principles of
equity, where the claim attaches to the particular mari-
time demand submitted to their cognisance by the
libel (e). The rule and practice of the Admiralty, in
this respect, seems to be the same as that which has
obtained in the continental courts, under the name of
re- convention (/). The damages in the present case
exceeding the amount claimed, I decree for the defen-
dants ig).

{d) Glassford's Principles of
Evid., 443 ; Holt on Shipping,
Vol. i., p. 464 ed. of 1820 ; The
Malta, 2 Hagg. 165.

(e) The New Phoenix, 2 Hagg.
420 ; Abbott on Shipping, Amer.
ed. of 1829, p. 473; Latham «.
West, 5 Martin's Louis Rep.
573.

(/) TouUier, Liv. 3, Tit 3,
Ch. 5. 8. 4, No. 359, Tom. 7,
p. 435.

Les domiuages et interets sent
une suite nficessairc, nor -seule-
ment de tout crime, mais encore
de toute imp6ritie, negligence,
faute meme tres-lfigeres, quelle
que soit leur nature, qui, a raison
de ce, m6rite unes6verepunition.
Argument tire des Lois, 3. s. 5,

1. 5, if. Nautse. Institution au
Droit Maritime, par Boucher,
8. 574, p. 151.

If a pilot undertake the conduct
of a vessel to bring him to St.
Malo, or any other port, and fail
of his duty therein, so as the
vessel miscarry by reason of his
ignorance in what he undertook,
and the merchants sustain la-
mage thereby, he shall be obliged
to make full satisfaction for the
same, if he hath wherewithal;
and if not, lose his head. Leg.
Oleron, Ch. 23.

{ff) Decision to same effect in
the case of the Clyde, 6 Aug.
1840, and the Canada, 12 No-
vember, 1841.

t.^.n

FOB LOWER CANADA.

Thursday, Is/ December, 1830.

ADVENTURE -Pevebley.

Probatory terms are in geceial peremptory, but may be restored Adventure.
for sufficient cause. ^ '

Per Curiam.

Upon the libel being admitted, a probatory term was
assigned on the 9th instant for the promoter to produce
witnesses, and prove the allegations in his libel on or
before the next court day, which was on the 11th. The
defendant having filed his responsive plea on the 23rd,
the Court in like manner assigned as a probatory terra to
the defendant the next court day, which was the 25th. It
now appears that the promoter examined, within the pro-
batory term assigned to him, the following witnesses, Regis
Jean, Pierre Dupuis dit St. Michel, and Joseph Savard ; and
after the expiration of his probatory term, tlie following
witnesses, Thomas Colbourn, William Peverley, and Pierre
Goudreau. As well the proctors of the parties as the
registrar of the Court appear to have been in error, in
supposing that it was competent to them to examine
witnesses after the expiration of the probatory term to
them respectively assigned. To have authorized these
examinations, it was absolutely necessary that conti-
nuances of the probatory term should have been had.
I am not authorized to grant publication of the depositions
taken subsequently to the expiration of the probatory
term : but, as the parties appear to be in error, I will
entertain a motion from either or both to be restored to
a term probatory, and will assign a new day for the
parties to prove their pleas, if a motion should be made
to that effect. In the absence of a formal consent of the
parties by their proctors, I see no other course by which

' 1 1

1 'i^
}

■■ry<

fA
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100

CASKS IN THK VIt:K-AD]\IIUAI,Ty COURT

Adventukr. the justice of this case be attained. The grounds upon
which a party may be restored to his probatory term
will be found in Oughton (a). It will there be seen that
this restitution is anything but a matter of course ; and
I wish it to be distinctly understood that if the probatory
term be restored, it is merely from the consideration that
both parties seem to have been in pari errore ; and from
the laxity of the practice which has hitherto obtained in
'his Court, their error may be considered as a venial one.
The same reason will not apply to any future case, and
I shall not feel myself at liberty to relax the strict rule
under which probatory terms are considered peremptory.

(a) Oughton'sOrdo Judicioram,
Tit. 75, Ob. Sub. lit. (t).

12. Licet Terminus Frobato-
rius, assignatus per Judicem Liti-
gantibus, dioatur esse perempto-
rius; ita ut Pars Actrix, sive
Rea, tenetur producere Testes
8U03 infra eundem : Tamen, ex
causis quibusdam. Partes liti-
gantes restituendae sunt in no-
vum Terminum Probatorium ;

13. Exempli gratia ; Si locus
judioii non sit tutus ; utpote, quia
Pestis ibidem steviebat, toto Ter-
mino Probatorio, vel pro majori
parte ejusdem, Pars non tenetur
hujusmodi locum adire, et (si
Pars voluerit) Testes non sunt
compellendi, ad comparendum in
tali non tuto loco ;

14. Si, pendente Termino Pro-
batorio, Causa fuerit (Consensu
Partium) compromissa, vel in
Arbitros rulata, et ita steterit toto
Termino Probatorio, vel pro ma-
jore parte ejusdem ;

15. Si Pars principalis, qure
Testes produceret, fuerit cor.tinuo
incaroerata, vel ita aegrota, ut
(sine periculo vitro) non potuerit

adire locum Judicii, vel Causam
prosequi ;

16. Si fuerit Kegii Negotiis
impedita, pendente hujusmodi
Termino Probatorio ; danda est
Restitutio.

17. Sunt etiam nonnulla alia
impedimenta, propter qxm conce-
denda est Restitutio ; quae lelin-
quntur boni Judicis Arbitrio.

18. Si, Impedimentis hujus-
modi allegatis, et Restitutione
petite, Pars adversa hujusmodi
Restitutioni obsteterit, et ea (vera
esse inficiando) negaverit,cogeret-
que Adversarium eadem Impedi-
menta probare ; si probaverit ;
Adversa Pars (hano Probationem
cogens) est condemnanda in ex-
pensis, ek ratione factis, et oon-
oedenda est petita Restitutio.

19. Et, e contra ; si Petens
banc R'jstitutionem defecerit, in
Probatione causarum allegata-
rum, ad obtinendum Restitutio-
nem ; deneganda est Restitutio,
et condemnanda est Pars, petens
Restitutionem in Expensis retar-
dati Proccssfls.

I'Oll liOWKH CANADA.

101

Wedtieaday, 7th December, 1836.

ADVENTURER— Peverley.

Pilots may become entitled to extra pilotage in the nature of
salvage for extraordinary services rendered by them. The jurisdic-
tion of this Court is not ousted, in relation to claims of this nature,
by the Provincial Statute, 45 Geo. 3, c. 12, s. 12.

Judgment. — Hon. Henry Black.

This is a claim of salvage set up by the promoter, who
is a branch pilot for the river St. Lawrence, for services
by h. rendered to the brig Adventurer, which was
stranded at Mille Vaches in the river St. Lawrence, on
her voyage to Quebec, about the sixth of October last.
From the depositions in the cause it appears that, soon
after the stranding of the brig, the master took the pro-
moter on board as a pilot, and promised him a remunei'a-
tion for any extra time that he might be detained there.
On going on board upon the 9th of that month, he found
the rudder unshipped, and that there were between two
and three feet of water in the hold, but the weather was
not boisterous, nor was the brig in any immediate danger.
The promoter taking charge of the brig, the rudder was
shipped, a kedge taken out astern, and the brig lightened
by throwing out a small quantity of coals and other por-
tions of her loading. The master having on the previous
day hired the schooner Louisa, she came alongside, and
continued with the brig till her arrival opposite Kamour-
aska, where her heading from the brig was completed, and
she proceeded to Quebec with the master and the pro-
moter on board, piloted by the promoter. Upon the
lightening of the brig at Mille Vaches, as already stated,

ADVENIOttElt.

ill

llj

111.

i ' ■

102 CASES IN THE VICE-ADAURALTY COURT

Advknturkr, she floated, and proceeded under charge of the promoter,
' "^ as pilot, to Cacona, where the master of the schooner
went on shore for assistance, and returned with fifteen
men, for the purpose of pumping the brig, the water
gaining on her. On Wednesday, the 12th of October,
these hands came on board, and in the afternoon the
wind began to freshen, and it came on to blow, with snow,
so that at intervals it was impossible to see the land, in
consequence of which the vessel was laid to ; but at the
instance of the master she was put before the wind by the
promoter, and brought to an anchor at the foot of the
traverse, the weather still continuing stormy, and so thick
that it was impossible to see the land. The brig having
remained about ten hours at anchor, and the wind
changing to the westward, the anchors were got up, and
the brig was by the promoter, against the wishes of the
master, run down to Kamouraska, where she was put
ashore, and lay in safety upon the muddy bank of an
island called Cow Island, at which place the schooner,
with the promoter and the master left her. Some blame
has been imputed to the promoter for taking the brig
back to Kamouraska, but the Court sees no reason to
doubt the soundness of the discretion exercised by him
on that occasion. The promoter piloted the schooner
from Kamouraska to Quebec, and afterwards returned
with the master in a steamboat, by which the brig was
towed into Quebec in safety, under the care of the pro-
moter, until she came alongside of the wharf there on the
21st of the month.

There being no question as to the facts of the case, the
sole inquiry for the Court is whether, under the foregoing
circumstances, the promoter is entitled to any extraordi-
nary remuneration for his services, and what that remune-
ration ought to be. It is a settled rule, that pilots assisting
veseels in distress, beyond what their mere duty requires,
are entitled to an additional pilotage as a compensation

rOR LOWER CANADA.

10.1

for their extra services. " It is held expedient for the
general safety of navigation, that persons ready on the
water, and fearless of danger, should, by liberal reward,
be encouraged to go out for the assistance of vessels in
distress " (a). Pilots are not in strictness entitled to
salvage, their duties are necessarily hazardous, but under
extraordinary circumstances of peril or exertion, they
become entitled to an extra pilotage, as for a service in
the nature of a salvage service (b). To the authorities
derived from English and American sources may be added
the following reasons for the rule, as assigned by Valin, in
his commentary upon the thirteenth article of the third
title and fourth book of the Marine Ordinance of Louis
XIV. " En eflfet, quoique la taxe soit faite sans distinc-
tion des saisons ni des circonstances qui peuvent allonger
ou accourcir le temps du pilotage, elle n'est jamais censee
porter sur des cas extraordinaires, tels que ceux d'une
tourmente et d'un peril manifeste. II est done naturel
alors d'accorder au lamaneur une taxe particuliere et
extraordinaire, eu dgard a son travail aussi extraordinaire,
et au danger qu'il a couru. Mais ce n'est pas a lui, a
fixer la retribution qui lui est due ; et si le maitre n'en
convient pas a I'amiable avec lui, apr^s le p^ril pass^,
c'est au juge i la regler, de I'avis de gens experts, tels que
sont des armateurs, et des capitaines de navires " (c).
The exertions and services of the promoter in this case
are clearly beyond the immediate scope of his duty as
pilot, and entitle him to remuneration in the form of
extra pilotage (d).

Adventuueii.

(«) Per Lord Stowell, apud.
1 Rob. 313, case of the Sarah.

(6) The Joseph Harvey, 1 Rob.
306; The General Palmer, 2
Hagg. 1 76 ; The Enterprise, ibid.
178 in note ; The City of Edin-
burgh, 2 Hagg. 333 ; The Pe-
ragio, Bee's Cases in the District

Court of South Carolina, p. 212 ;
1 Bell's Com. 594; Abbott on
Shipping, Story's note 161 ; 3
Kent's Com. 198.

(d) Boucher, Inst, au Droit
Maritime, 2682 ; Vincens, Expo-

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104

CASES IN THE VICE -ADMIRALTY COUUT

Adventurer. In settling the quantum of remuneration in these cases
~~~ ' the Court must be guided by the particular circumstances

of each particular case. The reward must be so appor-
tioned that pilots may be encouraged to strenuous exer-
tion in cases of danger, it being, however, borne in mind
that the natural and ordinary duties of their vocation
necessarily exposes them to dangers, for the encountering
of which a liberal allowance is secured to them in the
ordinary rates of pilotage, and in an exclusive possession
of this source of emolument. No persons are more
capable of fixing the quantum of remuneration than the
Trinity Board, whose duty it is to exercise a general
superintendence over this body of men. The Legislature
has wisely vested the power in the Trinity Board, and
enabled them to execute it in a summary form, and at
little expense. " For the encouragement of pilots, who
shall distinguish themselves by their activity and readi
ness to aid and assist any ship or vessel in distress, an ..
in want of a pilot in the river St. Lawrence," it is
enacted (e) " that the master or owner of any ship or
vessel in distress, and in want of a pilot in the river St.
Lawrence, shall pay unto any pilot who shall have
exerted himself for the relief or preservation of such
ship or vessel, such sum, for extra services, as the said
master or owner and pilot may agree upon ; and in case
no such agreement shall be made by the parties aforesaid,
the Master, Deput)'^ Master and Wardens of the Trinity
House of Quebec, or any two or more of them (whereof
the said Master or Deputy Master shall be one), are
hereby empowered, upon the petition of such master,
owner or pilot, or either of them, to ascertain and declare
by an award and order, under the hands and seals of
them, or any two of them, as aforesaid, the sum which

sitioTk Raisonnee de la Legisla-
tion Commerciale, Tome 3me,

p. 107.

{»•) 45 Geo. 3, c. 12, s. 12.

FOR LOWER CANADA.

105

shall be paid by such master or owner, to such pilot for Advkstorkr.
such extra services as aforesaid, and such sum so as ' "' '
aforesaid ascertained and declared, shall be levied in
manner hereinafter directed " (/). The rule as to the
allowance of extra pilotage in cases like the present one,
which is recognised in the decisions of the English and
American Courts, is positively sanctioned by an enact-
ment in the Marine Ordinance of Louis XIV. (</). This
article, in enacting that there shall be in cases of extra-
ordinary danger or difficulty an allowance of extra pilot-
age to the pilot, vests in a summary tribunal the power
of regulating the quantum of the extra allowance to be
made to the pilot, a provision analogous to that which is
contained in the clause of our provincial statute, which
has been already adverted to. The rights of the parties,
the interest of trade, and the substantial justice of cases
of this description are all consulted and promoted by this
provision. The jurisdiction of this Court, however, is
not excluded by the statute ; and although I may regret
that this more summary proceeding has not, upon the
present occasion, been adopted, yet I am bound to give
judgment upon the claim brought before me. The
services of the promoter are clearly meritorious ones,
exceeding his ordinary duties as pilot, and entitle him to
an extra remuneration. Besides this, there was an
express agreement between him and the master, on

, (i ;:

(/) The Act containing the
above provision was repealed by
an Act passed on the 30th of May,
1849, to consolidate the laws re-
lative to the powers and duties of
the Trinity House of Quebec
(12 Vict. c. 114), the 42nd section
of which contains the following
provision : —

" And be it enacted, that any
pilot saving or endeavouring to

save a vessel in distress shall be
entitled to a remuneration to be
fixed by the Trinity House of
Quebec, if such pilot shall not
have agreed with the master or
owner of the vessel as to the com-
pensation for such service, pro-
vided he be not the pilot on board
and in charge of such vessel."
{g) Liv. 4, tit. 3, art. 13.

*^s^x

100

Advknturkr.

CASES IN THE VICE-ADMIRATiTY COURT

entering into the service of the vessel that he should
receive an extra allowance, which under the statute
was a good and valid agreement. I therefore award to
the promoter a sum equal to double the ordinary rate of
pilotage. In this sum is included any remuneration to
which the promoter might lay claim for piloting the
schooner Louisa to Quebec, considering him while on
board of the Louisa, as being there in the service of the
Adventurer (A).

(A) A pilot, while acting within
the strict line of his duty, how-
ever he may entitle himself to
extraordinary pilotage compensa-
tion for extraordinary services, as
contra-distinguished from ordi-
nary pilotage for ordinary ser-
vices, cannot be entitled to claim
salvage. In this respect he is not
distinguished from any other
oflScer, public or private, acting
within the appropriate sphere of
his duty. But a pilot, as such,
is not disabled, in virtue of his
office, from becoming a salvor.

On the contrary, whenever he
performs salvage services beyond
the line of his appropriate duties,
or under oiroumstanoes to which
those duties do not justly attach,
he stands in the same relation to
the property as any other salvor,
that is, with a title to compensa-
tion to the extent of the merit of
his services, viewed in the light
of a liberal public policy.

Hobart ». Drogan, 12 Peters's
Reports, Supreme Court of the
United States, p. 117.

\
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o:

FOB LOWER CANADA.

107

Tuesday, 2ist February, 183''.

ROYAL WILLIAM-Pennel.

In case of wreck in the river St. LaMrrence (Rimouski), tbe Court
has jurisdiction of salvage.

Under the circumstanoes of this case the service is a salvage
service, and not a mere locatio operis, though an agreement upon
land was had between the parties in relation to such service.

In settling the question of salvage, the value of the property, and
the nature of the salvage service, are both to be considered.

Salvors have a right to retain the goods saved, until the amount
of the salvage be adju'^ted and tendered to them.

Judgment. — Hon. Henry Black.

This is a claim as for salvage by the promoters on the
schooner Royal William, of the burthen of forty-five tons,
and her cargo, she having gone ashore on the 25th of
October last, between Barnab^ Island and Rimouski, in
the river St. Lawrence. The material facts are that this
schooner, laden with fish fon a voyage from St. George's
Bay, in the Island of Newfoundland, to Quebec, was
overtaken by a storm, as she was lying off the east end
of Barnab^ Island at anchor, of such violence as to part
her cables, and oblige her master to run her ashore at
Rimouski, between Barnabe Island and the main land.
The captain and crew left the ship, and went on shore,
and in consequence of a communication which took place
between him and the promoters, they went on board the
vessel, liired carters and labourers, and removed and
stored the whole of the cargo at Rimouski. In this work
they appear to have been engaged three days, and to
have slept on board the vessel. The tide ebbed and
flowed in her, and she was lying over in about ten inches
of water at low tide. At the end of the three days, the

RoYAri
William.

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108

CASES IN THK VICK-AnMIRAT,TY COURT

Royal
William.

master and crew went on board, and unrigged her, and
the rigging was carted and stored with the cargo. The
written power from the master to the promoters, which
was executed upon his first coming on shore, authorises
them to take possession of the ship ; and some of the
witnesses swear that the master had stated verbally, that
they were so authorised. The master does not seem to
have understood the French language, in which this
authority is written, and several witnesses swear that no
authority was given by him to the promoters to take
possession of the vessel. This fact, however it may have
been, does not seem material ; the only questions before
the Court, are questions upon which the fact of possession
has no bearing. These questions are :

1. Has the Court jurisdiction in cases of salvage,
occuring at the place where this vessel was wrecked.

3. Are the promoters entitled to salvage, and if so,
what ought to be the quantum thereof.

Upon the first question, it appears that whatever
doubts might have existed as to the jurisdiction of this
Court in cases of salvage occuring in the river St. Law-
rence, previous to the passing of the 2 Wm. 4, c 51,
those doubts must be considered entirely set at rest by
that statute, the sixth section of which is as follows: —
"Whereas in certain cases doubts may arise as to the
jurisdiction of the Vice- Admiralty Courts in His Ma-
jesty's possessions abroad, with respect to suits for sea-
men's wages, pilotage, bottomry, damage to a ship by
collision, contempt in breach of the regulations and
instructions relating to His Majesty's service at sea,
salvage and droits of Admiralty : be it therefore enacted,
that in all cases where a ship or vessel, or the master
thereof, shall come within the local limits of any Vice-
Admiralty Court, it shall be lawful for any person to
commence proceedings in any of the suits hereinbefore
mentioned in such Vice-Admiralty Court, notwithstanding

I'OH LOWER CANADA.

109

the cause of action may have arisen out of the local
limits of such Court, and to carry on the same in the
same manner as if tlie cause of action had arisen within
the said limits." It has been argued that this is a eon-
tract upon land, and the case has been attempted to be
assimilated to the ordinary contra 't of hiring, locatio
opcris, to land goods from a ship; bu. this view of the
case is incomplete and inaccurate. The right of the
promoters depends not merely upon a hcatio opcm ; it is
for their services in saving the cargo on board of a ship
wrecked in the river St. Lawrence, and abandoned,
which is clearly a case of salvage (a). The agreement
between the promoters and the master is incidental to
salvage in a case of wreck. In determining whether the
Court has jurisdiction or not, we must look at the nature
of the principal subject of controversy; and if it be
within the jurisdiction of the Court, it will draw along
with it all accessary matters.

We are then to look at the nature and value of the
services performed by these parties. They go on board
the ship, hire carters and labourers, superintend the
removal of the cargo, and remain, — with some personal
inconvenience, though I think without any personal risk
or danger, — on board during the night. The master and
crew had left the vessel upon her stranding, and returned
to her at the end of three days for the purpose of un-
rigging her, after her cargo had been discharged, and
then finally abandoned her.

I do not see any salvage service rendered to the ship,
which can entitle the promoters to salvage compensation
in respect to it. They appear to have gone on board
the ship for the purpose of removing the cargo, and
there is no evidence of any service having been rendered

ROYAI.

William.

i;:

\.'h

1 1

t I

(a) Happy Return, 2 Hagg.
206. See also the case mentioned
in a note, of a claim of salvage

for the unlading and housing of
goods, from a wreck brought into
Pagham Bay.

110

(ASMS IN TIIK VICK-A1>MIUAI,TY t'OirUT

KuTAL

WiLLUM.

to her after that removal, or indeed required. As to
the cargo, the promoters are clearly entitled to a salvage
compensation, and the sole question is, as to its quantum.
The claim of tlie promoters embraces two heads ; first,
for disbursements laid out by them in removing, and
putting into a place of safety the cargo; and next, a
claim of compensation for their personal services, in
directing and superintending the saving of the cargo.
There does not seem to be any doubt as to the sum to
be allowed for the disbursements. Mr. McKinnon states
that tlie costs of landing the cargo might be about 20/.,
and that he was in treaty with individuals on shore, to
land it for that sum. The total sum charged by the
promoters is 36/. 10s. Qd., of which 15/. is for the hire
of the store into which the cargo was placed, and 2i. 58.
for notarial charges, &c., leaving 18/. lis. Qd., for the
disbursements incurred by the promoters in putting the
cargo on shore, which may therefore be taken to be a
moderate and reasonable chaige. The services of the
promoters relate to the saving of the cargo ; their remain-
ing on board of the ship during the night whilst the
cargo was delivering, is evidence of their zeal and atten-
tion in the performance of this service. In settling the
question of the salvage, the value of the property and the
nature of the salvage service are both to be considered.
The parties have consented to a valuation of the property
saved at 100/. for the ship, and 264/. 5s. for the cargo,
from which last sum deducting 120/., the expense of
transport from Rimouski to Quebec, there is left the net
value of 144/. 5s. It appears that of 35/. 16s. 6d. charged
by the promoters, 15/. was paid by the claimant before
the owner of the store would allow the cargo to be
removed, reducing their account of disbursements to
20/. 16s. 6c?. I think that to this there ought to be added a
further sum of 20/., that is 10/. each, to the promoters
for their salvage services, and I accordingly decree in

FOtt LOWER CANADA.

favo ir of the promoters lor 40/. 16a. Qd. currencj'. The
expenses of the commission, amounting to D/. Ida. Qd.
are also to be paid by tlie claimant.

I am sensible that the salvors must have been put to
considerable inconvenience and expense in prosecuting
this suit, in consequence of the distance of their resi-
dence from the seat of the jurisdiction of this Court.
But it is not in my power, sitting here, to give them any
relief on this score ; indeed, the inconvenience to which
they have been subjected is due to themselves. Their
course was very plain, that of retaining the goods saved
until the salvage was adjusted and tendered to them (b).
They have thought proper to adopt another one, entailing
upon themselves expense and inconvenience, which might
have been obviated by exercising their legal right of
retention (c). '

111

(6) Hartford v, Jones, 1 Lord
Raym. 303 ; the Bleuden-hall, 1
DodsoD, K. 414.

(c) A person who by his own
labour preserves goods which the
owner, or those entrusted with
the care of them, have either
abandoned in distress at sea, or
are unable to protect and save, is
entitled by the common law of
England to retain the possession
of the goods saved until a proper
compensation is made to him for
his trouble. This compensation,
if the parties cannot agree upon
it, may by the same law be ascer-
tained by a jury, in an action
brought by the salvor against the
proprietor of the goods ; or the

proprietor may tender to the sal-
vor such sum of money as ho
thinks sufficient, and upon refusal
to deliver the goods, bring an
action against the salvor ; and if
the jury think the sum tendered
sufficient, he will recover his
goods, or their value, and the
costs of his suit. Petersdorlf 's
Abridgement, Vol. 11, p. 483,

As to the right of retention,
under the French and Civil law,
see Troplong, Des Frivil6^'es et
Hypotheques, Tome premier, No.
175, p. 256, No. 264, p. 386;
Fardessus, Cours de Droit Com-
mercial, Tome Seme, No. 955,
p. 557 ; Voet ad Pand. de Com-
pens. No. 20.

KOYAL

William.

f^:M

•'\

I'iv

wmm

tmm

112

CASES IN THE VICE-APMIRAI/I'Y t'OUHT

Saturday, 2Ath June, 18S'i

I '

;

FRIENDS— Duncan.

Friends. ^^e Admiralty jurisdiction, as to torts, depends upon locality, and

is limited to torts committed on the high seas. Torts committed in the
harbour of Quebec are not within the jurisdiction of the Admiralty.

Judgment. — Hon. Henri/ Black.

This suit is brought by the promoter, a passenger on
board the barque Friends on her voyage from Dublin
hither, against the defendant, the master, for the recovery
of damages ; and the promoter sets forth in his libel divers
injuries alleged to have been committed against him by
the defendant, as well during the voyage as at this port of
Quebec, where the vessei has latterly arrived. No objec-
tion is made to those articles in the libel which set forth
injuries alleged to have been committed on the high seas ;
the only question for the consideration of the Court now
is, as to the admission of the fourth article in the libel,
setting forth those injuries which are alleged to have been
committed in this port. The pi'omoter, in this article,
alleges that during the voyage, and before its completion,
and while the ship was " in the river St. Lawrence, off the
city of Quebec, in the port of Quebec," within the ebbing
and flowing of the tide, and within the jurisdiction of this
Court, a child of a relation of the promoter died, and that
the defendant had maliciously accused the promoter of
having murdered the said child, and published and pro-
claimed the same, and prevented the promoter from
interring it, and caused the coroner for the district of
Quebec to go on board the barque to hold aa inquest
on the said child. That on the evening of the sauie day
the defendant placed the promoter in irons, and sent him
on sliore to gaol, with circumstances of peculiar cruelty.

JM.

FOR LOWER CANADA.

It is objected that the acts here complained of being
alleged to have been committed at a place which is infra
corpm comitatus, the Court has no jurisdiction.

In all cases of jurisdiction the Court is called upon to
; .rform a delicate and important duty. As on the one
hand it is the duty of the Judge to maintain unimpaired
the jurisdiction wherewith the law has invested him, so
on the other he must be cautious not to assume authority
on matters beyond the pale of his jurisdiction. He can
have no inclinations or bias either way. The power which
he is to exercise is held by him in trust, and must be
maintained in its integrity, neither enlarged nor abridged,
within the precise limits which the law has defined. Sir
Thomas Strange has expressed with peculiar felicity the
duty of a Judge in this particular, " It is said in many
cases boni Jitdicis est ampliare jurisdictionem. If for juris-
dictmiem be read (as was always read by Lord Mansfield)
justiciam, it is a noble maxim. If an object and matter of
jurisdiction exists, it is indeed the part of a Judge, so far
as circumstances may admit, to administer an enlarged
and amplified justice, embracing the interests of all parties
and all the bearings of the case in any other sense of the
maxim. It seems to me that the strength of every juris-
diction consists mainly in a temperate admeasurement of
it by thos3 in whom it '"" vested ; and that so far from its
being the duty boni Judicis ampliare, it becomes none more
than Judges to set to others in power a different example,
instead of, by overstrained constructions, and upon fanciful
imaginations, to be outstepping the bounds set by their
commissicii. Neither are we to presume that justice will
not be done, though this Court, sustaining the plea, should
decline the office of rendering it." (a). From the peculiar

(<e) Per Sir Thomas Strange,
Chief Justice of the Supreme
Court of Judicature at Madras,
in the case of Nagapah Chittj t*.

Kachummah and Kenehpah, 9th
March, 1802. See his Not<'s of
Cases, Vol. 1, p. 136,

113

Friknds.

;[

! ■

.!■■

114 CASES IN THE VICE -ADMIRALTY COURT

FBI E KD8. nature of the class of questions to which that now under
consideration appertains, I shall feel it necessary to enter
more fully into the grounds of the conclusion to which
I have come than any difficulty in the question itself
would call for. I am of opinion that this Court has not
jurisdiction of matters of the nature of that set forth in
the fourth article of the libel. This article sets forth
a malicious accusation, assault, and false imprisonment,
committed within the harbour of Quebec, that is a
personal tort committed within the body of the county.
It has been thought that certain general terms con-
tained in the commission of the Judge, conferred upon
the Court power to take cognizance of matters happening
in ports, harbours, &c., in this px-ovince, in the same
manner as if they had happened super altitm mare.
The words of the commission referred to for the
purpose of establishing this doctrine are those granting
power to the Judge to take cognizance of and proceed
in " any matter, cause or thing, business or injury,
whatsoever, done or to be done, as well in, upon, or
by the sea or public streams, fresh waters, ports,
rivers, creeks, and places overflowed whatsoever within
the ebbing and flowing of the sea or high water-
mark, as upon any of the shores or banks adjoining
to them or either of them." The Judicial Commissions
of the Admiralty are of very high antiquity, and were
settled long before the statutory provisions and legal
decisions, whereby the jurisdiction of the Admiralty, as it
was originally exercised, was materially abridged. But
" it is universally known," says Lord Sto\ceU, " that a
great part of the powers given by the terms of that
commission are totally inoperative, and that the active
jurisdiction of the Admiralty stands in need of the
support of continued exercise and usage "(ft): and again,

{h) The Apollo, 1 Ilagg. 312.

FOR LOWER CANADA.

116

in the case of the Atlas, he says, " This Court, except
upon the suhject of prize, exercises an original juris-
diction, upon the grounds of authorised usage and
established authority. The history of the laws of this
country shows full well that such authorised usage and
established authority are the only supports to which this
Court can trust, except in respect to the subject to which
I have alluded (c)." In the commission to the Judge of
the Vice-Admiralty Court, he is enjoined to try and
determine according to the civil and maritime laws and
customs of the High Court of Admiralty of England.
Now, nothing can be more clear than that the High Court
of Admiralty could not exercise jurisdiction in the case of
a personal tort committed in a port or harbour lying ivfra
corpm comitatm. Lord Mansfield, in Lindo v. Kodney,
says, "The statutes of 13 and 15 Ric. 2, and 2 Hen. 4,
do not exclude the common law in any case, and they
confine the Admiralty by the locality of the thing done,
which is the cause of action ; it must be done upon the
high sea. If done in ports, havens, or rivers, within
the body of a county of the realm, the Admiralty is
excluded (</)." There is no authority, or case, or dictum,
to show that for a personal tort committed elsewhere than
on the high sens, the Admiralty has jurisdiction (e). And
all the elementary treatises are to the same effect. The
Courts of Admiralty in the United States of America
have held, that many of the old and established decisions
of the common law courts in England, restrictive of the
powers of the Admiralty, are encroachments upon the

Fhibnss.

! .1

{(l) Douglas, 615.

(e) Hawkeridge'soase, 12 Rep.
129 ; Moore, R. 892 ; Violet v.
Blague, Cro. Jac, 514 ; Velthasen
». Ormsley, 3 Term. Rep. 315;

Com. Dig. Tit. Admiralty, F. 2 ;
2 Browne's Law of the Admiralty,
HI ; Viner's Ab. Tit. Court of
Admiralty, E. 5 ; Caton v. Burton,
Cowp. 330.

&,':

116 CASES IN THE VICE -ADMIRALTY COUET

Friends. legitimate powers of the Admiralty ; and have, in con-
sequence, maintained a more extensive jurisdiction than
that which obtains in the British Courts of Admiralty (/).
Notwithstanding this, however, those Courts do not
appear to have ever set up a claim to jurisdiction in
respect to personal torts committed in their harbours.
Nor can I find any trace of such a claim set up in any of
the old or present British colonies. I feel, therefore,
with Sir Christopher Robinson, " that it is my duty not to
adventure beyond the known limits of my authority,
and I should only involve the parties in expense and
disappointment were I to encourage any such experi-
ment " (g).

It seems to have been supposed by the promoter's
counsel that the relation which had subsisted between
these parties, of passenger and master, might make
a difference, but I do not see that it can (A). The
action of the promoter must be either in tort or in
contract. If his right of action be looked at as growing
out of a contract, then the contract was a contract upon
land ; and the general rule is that if a contract be made
on land to be executed at sea, or be made at sea to be
executed on land, the common law has the preference, and
excludes the Admiralty {i). The cause must arise wholly
upon the sea, and not within the precincts of any county,
to give the Admiralty jurisdiction. Suits for seamen's
wapes are an exception to this rule (k). The cases where
the Admiralty has jmisdiction by reason of the subject
matter, and where the proceeding is in rem, are a class by

(/) See the learned and elabo-
rate judgment of Mr. Justice
Story upon this point in the case
of De Lovio v. Boit, 2 Gallison,
398.

(ff) Public Opinion, 2 Hagg.
403.

(A) 2 Browne's Law of the Ad-
miralty, 94.

(t) 3Blaok.Com. 106; Comyn's
Dig. Tit. Admy. F. 4 & 5.

(k) Howe V. Nappier, 4 Burr.
1950; Anonymous, 1 Yentris,
t49»

FOR LOWER CANADA.

ftemselves W and need not be adverted lo in . case like
SeVL*;r "°'"^""'' "'■ ' '-'-' '^^ '»«'«'

117

Pkiknds,

Bradlef/, for the promoter.
JBoiven, contra.

(0 Menetone v. Gibbons, 3 T. R. 267.

I i!

J* 'M

! I

,:,

118

CASES IN THE VICE-ADMIKALTY COURT

Friday, ^Mh June, 1837.

FKIENDS— Duncan.

Fmirss. •'•^® Admiralty has jurisdiction of personal torts and wrongs com-

mitted on a passenger on the high sea, hy the master of the ship.

Unless in eases of necessity, master cannot compel a passenger to
keep watch.

Judgment. — Hon. Henry Black.

This is a case of very considerable impoi*tance in point
of principle, to which the Court has felt it a duty to
bestow its best attention. The claim is for damages
arising from torts, alleged to have been committed on the
high and open seas by the master to the promoter, a
passenger on board his ship, on her voyage from Dublin
to Quebec. These torts are alleged to consist: 1. In
causing one of the two tire-places for the use of the
passengers to be thrown overboard during the voyage,
in consequence of which, and of the scarcity of fuel, the
promoter could, with great difficulty, get but one meal of
victuals dressed daily. 2. In reducing the allowance of
the promoter and his family, consisting of nine persons,
from three and a half to two gallons of water per day.
3. In obliging the promoter and his fellow -passengers
to work the vessel and to keep watch at night, in conse-
quence of there not being a sufficient number of seamen
on board. 4. In assaulting, beating, and putting in irons
the promoter, duiing the voyage, without any sufficient
reason.

The proceeding here I understand not to be in law
founded upon the contract, but upon the tort. The
sailing with passengers without having the quantity of
water prescribed by the statute, subjects the master to a
penalty ; and the infliction of this penalty does not take

FOB LOWER CANADA.

away from the passenger his right of action for the breach
of the contract, which right of action is expressly re-
served by the 17th section of the Passengers' Act (a).
But this being a contract upon land, to be executed upon
the sea, I think, as advised at present, that the remedy
of the passenger upon the contract is exclusively with
the common law courts. It does not thence follow that
the passenge/ has no remedy in the Admiralty (&). The
relation of master and passenger produces certain duties
of protection by the master, analogous to the powers
which the law vests in him over all the persons on board
his ship; any wilful violation of which duties, to the
personal injury of the passenger, entitles the latter to a
remedy in this Court, as for " a cause of damage," a plea,
or querele arising on the high seas. It is material to
bear this distinction in mind in looking at and weighing
the evidence in this cause. If this Court entertained
the present suit as an action of damages founded directly
upon the contract, it would be sufficient for the party
complaining to prove the contract, and the breach of the
contract by the master, to entitle the passenger to his
damages, without reference to the animus of the master
in the acts or defaults complained of. Looking at the
liability of the master in this Court, as arising from a
tort committed on the high seas, the animus of the master,
and all the circumstances of the alleged breach of his
duty of care and protection of the passengers, as master,
come to be material in the determination of the question
of his liabiUty as for the tort : and this brings us to the
examination of tLe facts of the case as disclosed in the
evidence.

The testimony is somewhat contradictory ; and as to
the quantity of water on board the vessel, obscure and
uncertain. The master could have no interest in sparing

119

Fbibrds.

Y ;^vt.i

(a) 6 & 6 W. 4, c. 63.

(6) The Ruckers, 4 Rob. 53, 73.

180 CASES IN THE VICE -ADMIRALTY COURT

Friknbh. the allowance of water to the passengers, nor any other
motive than that of economizing this essential requisite
for life, for the benefit of the passengers themselves.
The mate swears positively to the propriety of the dimi-
nution of the allowance of water ; and this Court will
not lightly question the judgment of the master and
officers of the vessel, in a matter wherein he is solely
responsible, and of which he, under all the circum-
stances, was the best judge. It may be that the master
has rendered himself liable to the penalty of the law, for
not having the prescribed quantity of water on board his
vessel when she sailed. It may also be, that in an action
on the contract he would be liable in damages to the
passenger. But the question in this case is, whether he
has been guilty of a tort, and personal wrong to the
passenger; and without having any opinion as to his
liability, either for the penalty or for damages by reason
of the breach of the contract, I am decidedly of opinion
that the evidence does not fix liability upon the master
as for a tort. The same considerations apply to the fact of
the throwing overboard of one of the fire-places. Where
acts are done apparently in good faith, for the safety of
the lives of the crew and passengers, — which are in
the keeping of the master, — and where there is no
appearance of any malicious or improper motive in the
master, the Court will feel it to be its duty to support
him.

The next charge is the master's compelling the pro-
moter to keep watch and work on board the ship. Al-
though in cases of necessity it may be competent to the
master to compel passengers and all others on board the
ship to labour for her preservation, yet that necessity
must be clearly made out. The evidence upon this
point is so contradictory, that I am unable to say whether
such necessity existed or not ; or whether the keeping of
watch was compulsory on the passengers, or proceeded

FOB LOWER CANADA.

1»]

from their own free will, and from their conviction of the
necessity of the measure for the safety of all on board
the ship.

As to the last remaining ground of complaint, that is,
the having assaulted the promoter and put him in irons,
and kept him there for an hour, the fact is not denied,
and the justification set up by the defendant has not
been proved. The defendant pleads " that the promoter
was frequently quarrelsome and disorderly, and bore a
bad character among his fellow-passengers. That on the
third day of May, the promoter created a great disturb-
ance in the said barque, and struck and otherwise beat
and maltreated one John Craig, a quiet, respectable man,
and a passenger on board the said barque ; and resisted
the orders of the mate, who commanded the promoter to
keep quiet and cease fighting ; and thereupon, on the
complaint of the passengers, and at their request, the
defendant caused him to be brought on deck and hand-
cuffed, and placed to the lee of the round-house, and
there kept and detained for the space of half-an-hour.
That the punishment inflicted by the defendant on
the promoter was necessarily inflicted, to prevent the
promoter in his anger from doing further mischief and
injury to his fellow-passengers ; and also for the sake of
example, and to preserve discipline on board the said
ship, and was not attended with cruelty of any kind
whatsoever." The deposition of John Craig, produced
by the defendant, and whose testimony is clear and un-
biassed, shows that the promoter had been provoked by
an act of aggression of Craig himself, and that the
retaliation, though not strictly justifiable, was natural,
and not accompanied by any act of cruelty or gross
violence. It was the duty of the marter on this occasion,
— before inflicting any punishment whatever, — to have
heard what the promoter had to say in his justification,
which he does not appear to have done. In all cases

Frixnds.

HMMHRHI

CASES IN THE VICE -ADMIRALTY COURT

which will admit of the delay proper for inquiry, due
inquiry should precede the act of punishment, and the
party charged should have the benefit of that rule of
universal justice, of being heard in his own defence. A
punishment inflicted without the allowance of such
benefit, is in itself a gross violation of justice (c), an. . in
all cases where so rigorous a measure is resorted to,
the master must be prepared to justify it. The authority
of a master at sea is necessarily summary, and often
absolute. For the time, he exercises the right of sove-
reign controul ; and obedience to his will, and even to
his caprices, becomes almost indispensable. If he
chooses to perform his duties, or to exert his office in a
harsh, intemperate, or oppressive manner, he can seldom
be resisted by physical or moral force ; and, therefore,
in a limited sense, he may be said to hold the lives and
personal welfare of all on board, in a great measure,
under his arbitrary discretion. He is, nevertheless,
responsible to the law ; and if he is guilty of gross abuse
and oppression, courts of justice ought not to be found
slow in visiting him, in the shape of damages, with an
appropriate pimishment(</). Conceiving as I do, that
the assault and putting into irons of the promoter by
the defendant, and keeping him handcuffed and exposed
to the weather for the space of from half-an-hour to an
hour, was not warranted by law and oppressive, I decree
on this head damages to the promoter, and assess the
same at 10/. sterling (e).
Bradley, for the promoter. Botcen, contra.

{d) Per Story, J., apud 3
Mason, p. 245.

(e) Magister naris habet potes-
tatem carcerandi delinquentes in
Bua nave, etiam si delinquentes,
essent olerici ad finem prsesen-

tandi eos coram judice compe-
tente illius territorii, et distriotus
looi vicinioris, ubi delictum pa-
tratum fuit, aut in portu, ubi
navis exoneratio sit destinata ad
hoc ut ipsi puniantur.

Roccus de Navibus et Naulo,
Not. 8, No. 17, 18.

FOR LOWER CANADA.

' Tuesday, llth July, 1837.

LOCKWOODS— Lawton.

A promise made by the master at an intermediate port on the
voyage, to give an additional sum over and above the stipulated
wages in the articles, is void for the want of consideration.

Judgment. — Hon. Henry Black.

This is a suit brought by three seamen, George Lawson,
Andrew Smith, and William Sweeney, to recover their
wages accrued on a voyage from Liverpool to New York,
and thence to Quebec. The voyage set forth in the ship's
articles is from the port of Liverpool to New York, and
from thence to Quebec, and any other port or ports in
British America, at the option of the master, and back to
the port of Liverpool, or any other port of discharge in
the United Kingdom. At the foot of the articles is the
following memorandum : — " The names of those men who
are opposite the sum of 2/. 15s. are to have 58. per month
more on condition of their returning with the ship to
Liverpool. June 1st, 1837, at Perth Amboy, United
States of America. William Lawton, master." The ship
being now about to proceed to a port in the United King-
dom, these three seamen claim to be discharged from the
ship, and their wages down to this time. As to the two
first, it is admitted that they signed these articles ; the
last denies having signed them, and there is no evidence
of his having done so, or of his having engaged to go the
voyage in question. All that we have is his name, and a
mark purporting to be his, and a signature purporting to
be the signature of a witness to his mark. But that wit-
ness is not produced, or any person who was present at
the time when the articles purport to have been signed by

ijia

LOOKWOODS.

'am

I''

■' [ ft

S it!

134

CASES IN THE VICE -ADMIRALTY COURT

LooKwoors. him. The fact is directly put in issue by the pleadings,
and there is no evidence direct or presumptive of the
signature. Ho is therefore entitled to his discharge, and
to his wages up to the time of his discharge, which I
award. The two others claim their wages on the ground
that the articles had been rescinded and rendered void by
the promise contained in the foregoing memorandum. I
am decidedly of opinion that there is nothing in this
gi'ound. There was no consideration for this promise,
and it was utterly invalid even as to th additional sum
of five shillings over and above the stipulated wages in
the articles (ti). Least of all can it he held that the pro-
mise of tliis additional sum should vitiate the pre-existing
engagement of these individuals. Their action must,
therefore, be dismissed (b).

(o) Harris v. Watson, Fcake's
Cases, 72. The Isabella, 2 Ch.
Hob. R. 241 ; Elsworth v. Wool-
more, 6 Esp. N. P. C. 84 ; StOk
V, Myriok, 2 Camp, 317.

{b) The plaintiff and other sea-
men had entered into articles of
agreement to serve for a v 'age
from Liverpool to Melbourne and
home. At Melbourne several of
the orew deserted, and one of the
crew was discharged by the cap-
tain. Whilst the desertion was
going on, the captain entered
into a fresh agreement with the
plaintiffs and the other remaining

seamen to raise their wages for
the remainder of the voyage.
Held, that the plaintiff never
was, under the circumstances,
released from the obligation of
the original articles, and could
not therefore maintain an action
to recover the increased wages
for the voyage home. See opinion
of Lord Campbell, C. J., in which
Sir William Wightman, Sir Wil-
liam Erie, and Sir Charles Cromp-
ton, cU concurred. Harris v.
Carter tnd others, Q, B. 24th
May, IbM ; 25 Law and Equity
R'V'/ds (Boston), 220.

FUR LOWER CANADA.

iU6

Tumluy, 18th July, 183^

ATLANTIC— Hardenbrook.

Abandoning seamen, disabled in the seryioe of the ship, without
providing for their support and cure, equivalent to wrongful
discharge.

Judgment. — Hon. Henry Black.

This is an action for subtraction of wages. The pro-
moter entered on board the barque Atlantic, as a cook, at
Liverpool, on the 0th of March last, and signed articles
on a voyage to Londonderry and Quebec, and thence back
to a port of discharge in the United Kingdom. After
the arrival of the vessel at Londonderry, he went on
shore one evening with some of the passengers and got
drunk, and returned at about half after six o'clock the
following morning, and after the mate had directed
another man to light the fires. Angiy words passed
between the mate and the promoter, and in going between
decks the promoter fell or was pushed from the stanchion,
and was so much hurt thereby that he was on the next
day sent into the hospital, where he remained some
twelve or fourteen days, and was then sent over in a
steamer to Liverpool, where he was placed in an hospital
in which sick seamen are received gratuitously. The
exact period of time that he remained at this last hospital
does not appear, but he shipped at Liverpool on the 13th
of May, for this port in the Mary, and arrived here on
the 19th of June last. On leaving the hospital at London-
derry, the master paid tLo promoter 1^. 5s. 3c?. sterling.
The wages which he was to receive in the Atlantic were
8/. sterling per month ; and he appears to have received
in the vessel wherein he sailed to this port 21. 15s. per
month.

Atlantic.

lii

■' i

■If

ti t^

136

Atlantic.

CASES IN THE VICE-ADHnHALTY COURT

The only question of fact in the case is whether the
promoter was disabled in the service of the Atlantic. If
the injury which he sustained had been produced by
drunkenness on his part, he must himself have borne the
consequences of his own misconduct (a) ; but there is no
proof of this, and I am bound to consider that the injury
was sustained in the service of the ship. Such being the
case it was the duty of the master to have provided
medicine and attendance for the promoter at London-
derry, where the accident happened until his recovery,
at the ship's expense (6). Instead of continuing to do so,
the master sent the promoter against his will, by a
steamer to Liverpool, without making provision for his
being taken care of upon his arrival there ; and being
entirely destitute he was cast upon a public charity. I
consider that this act amounted to a wrongful discharge
of the promoter. The promoter might, if he had seen fit,
waited the return of the Atlantic to Liverpool, and have
recovered from the ship, the owners, or the master,
besides the expenses which he could show that he had
been put to for his cure, the wages stipulated by him in
the ship's articles ; deducting from these wages any
wages which he might have earned between the period of
his discharge from the Atlantic and her arrival at Liver-
pool. Such settlement of account could only be made

(a) Abbott on Shipping, Fart 2,
oh. 4, s. 13, p. 146 ; Laws of
Oleron, art. 6 ; Wisbuy, art. 39 ;
Cleirao on the Laws of Oleron, ubi
supra ; Boulay — Paty ; Droit
Commercial et Maritime, Tit. 5, s.
9, Tom. 2, p. 238 ; the Neptune,
1 Peters, Adm. R. 151 ; Pothicr,
Louage des Matelots, No. 190.

(b) Abbott on Shipping, Part 2,
oh. 4, 8. 13, p. 146 ; Laws of
Oleron, art. 7 ; Laws of Wisbuy,
art 19 ; Laws of the Hanse

Towns, art. 45 ; Ordonnance de
la Marine, Liv. 3, Tit. 4, art. 1 1 ;
Valin sur I'Art. 11 de I'Ord. Tom.
1, p. 721 ; Locr6 sur I'Art. 264
du Code ; Pothier, Louage des
Matelots, No.- 189; Harden v.
Gordon, 2 Mason. 541 ; Reed v.
Canfield, 1 Sumner, 195 ; 5 & 6
Will. 4, c. 19, s. 18.

Similar provisions have been
made in favour of merchant sea-
men by 17 & 18 Vict. o. 104,
8. 228.

FOR LOWER CANADA.

with reference to the wages which the promoter might
earn from thio port to Liverpool, and it might be that
these last wages would exceed the stipulated wages in the
articles. In point of fact the present wages from Quebec
to Liverpool are move than double these stipulated wages,
but the principle remains the same, however this may be.
The seaman is entitled to the deficiency, which could
only be ascertained upon the conclusion of the voyage of
the Atlantic at Liverpool, in an action brought there by
the promoter. Bringing his action here he can only
recover from the Atlantic, — subject to a deduction of the
wages earned — the wages which have accrued down to
the termination of the voyage hither, and that voyage
appears to have terminated on the 19th day of June last.
If the case had been to be considered as belonging simply
to the class of cases of seamen being disabled in the
service of the ship, and left behind provided for by the
ship, it would have been the duty of the promoter, upon
his recovery and upon his arriving at the port where the
ship was, to have joined her and continued his service on
board : or, what is equivalent to such service, to have
tendered it and been refused, which would have amounted
to a wrongful discharge. But, as I have already said,
I consider the sending of the promoter to Liverpool, in
the manner already stated, amounted to a wrongful dis-
charge from that period, and the promoter was not bound
therefore to tender his services to the ship here. There
is no evidence of the promoter's having been individually
put to any expense for his cure. From the gross amount
of his wages will be to be deducted 1/. 5s. 8d. paid at
Londonderry, and 3/. 6s. being the sum earned by him
on board the Mary, leaving a balance of 6/. 16s. sterling,
which last sum I accordingly decree to be paid to him.

Bradley, for the promoter.
Gairdner, contra.

127

AlLAtlTIO.

i' 'J

ill

f 4 iti} ,

I' ..
it §

128

CASES IN THE VICE-ADMIEALTY COUUT

Thursday, 20th July, 1837.

RECOVERY— SiMKiN.

Reoovert. Discharge demanded on allegation of insujQicient end unwholesome

^ , provisions refused.

Judgment. — Hon. Henry Black.

The promoters in this cause claim their discharge and
wages on the ground that the vessel was not properly
supplied with wholesome provisions on the voyage hither,
whereby their health has been impaired, and they are
unable to return. That, requiring medical treatment for
eruptions brought on by the insufficiency and unwhole-
someness of the provisions, the master, instead of pro-
viding proper medical treatment for them, had on their
arrival, and on intimation being given to him by their
proctor of his intention to institute the present proceed-
ings, obtained a stay of proceedings under a promise of
settlement, and in the meantime procured their convic-
tion and commitment by a magistrate, — for being absent
without leave, — to the common gaol of this district, where
they have remained for about a week, without nourish-
ment or clothes. These allegations are contested nega-
tively by the master. It appears from the ship's articles
that these men shipped and signed articles at the port of
Youghall, in Ireland, on a voyage to Cork, thence to
St. John's New Brunswick and Quebec, and back to a
port of discharge. The evidence, as is too common upon
these occasions, is very contradictory. The promoters
have produced three seamen, who like themselves were
engaged on board this ship, signed the same articles, and
left the vessel at the same time, and under tlie same cir-
cumstances as the promoters. The master on his part

'ih

FOB LOWER CANADA.

129

has produced the cook and the mate of the vessel. If Recovkrt.
the witnesses of the promoters are to he believed the pro-
visions furnished on the voyage out were insufficient in
quantity, and bad in quality. On the other hand the
witnesses of the master declare that the provisions were
of good quality and furnished in sufficient quantity. The
mate states that the meat used on board the ship had
been salted some week or ten days before their sailing ;
and that the master and cabin passengers ate meat taken
from the same barrels as the meat of the crew, and cooked
in the same manner. It appears also, that if the meat of
the seamen was not soaked, so also was not that of the
master. Of these two contradictory statements the Court
must adopt either the one or the other as the true one.
Now, although the seamen produced by the promoters
may be competent witnesses {a), it cannot be denied that
their credibility is impaired by their being precisely in
the same situation as the promoters ; and it may be pre-
sumed that they are only waiting a favourable decision of
this suit to bring a like one against the master or ship,
and to use the promoters as witnesses for them in that
suit. But however this may be, these witnesses are
manifestly in a situation to produce a bias on their minds
in favour of one of the parties and against the other.
The mate and the cook are without interest, and the
Court feels itself bound to believe their statements not-
withstanding the adverse statements of the promoters'
witnesses. The allegations then of the promoters as to
the insufficiency and bad quality of the provisions is
proved to be without foundation. Doctor Marsden, the
medical gentleman who has been examined in the cause,
states the presence on the persons of the promoters, and
of some of the witnesses, of eruptions, which may have
.proceeded from bad or insufficient food, or from the want

i;>3

( m-

(a) Phillips on Evidence 1, p. 44, 6th ed.

130

Rboovgky.

CASES IN THE VICE-ADMIRALTY COURT

of fresh provisions and vegetables, and the use of salted
ones. It does appear that the meat had not been
steeped in water previous to its being boiled, but it had
been very recently salted, and the master and cabin
passengers used it without steeping it, so that we cannot
consider this as rendering the meat absolutely unwhole-
some. Then it is not said by the medical gentleman
that these men cannot with safety go to sea, and from
what we all know of the habits of this class of persons,
I think that the improvement of their health is not likely
to be effected by their being discharged at this port. If
the state of the health of the promoters were to be con-
sidered as a substantive ground to claim their discharge,
they should have produced the physician of the gaol, who
appears after all to have been consulted only by one of
them. Upon the evidence as it stands, I should not feel
myself warranted in setting aside the contract. The
conduct of the master in causing these men to be im-
prisoned under the circumstances which are proved in
this case, may have been, and I think was harsh. But
he had a legal right to the remedy which he used (&), and
I cannot go the length of saying that by the exercise of
this right the men came to be discharged from the
engagements formerly entered into by them, and con-
tained in the ship's articles (c). I am constrained, there-
fore, to dismiss the master from this cause, the seamen
returning to their duty (d). But I cannot close the sub-
ject without urging strongly upon the master his duty to
take every care of the health of these men on their
passage home, both as concerns their provisions and their
medical treatment. The seaman owes obedience to the
master, which may be enforced by just and moderate

(6) Prov. St. 47 Geo. 3, u. 9,

^j J — „

actione cxperitur. D. 50, 47, 155,

s. 4.

8.1.

(rf) See 5 & 6 Will. 4, c. 19,

qui jure suo utitur, et ordinaria

8. 42.

FOR LOWER CANADA.

correction : but the master on his part owes to the sea-
man, besides protection, a reasonable and discreet care
his health ; and I trust that this admonition will not

h IT 1 ""'"• '' '^ ""' "°* ^""^ -*i«fi^d ttat

health and of preventing their present symptoms of dis-
order from being aggravated, humanity as well as the
interests of the ship and of the owners require that he
men should be paid off here.

Bradley, for the promoters.

A/iem, contra. '

Reoovkry.

K 2

189

CASES IN THE VICE -ADMIRALTY COURT

Monday, Zlst July, 1837.

TWIIED— Robertson.

TwRGD. Where a seaman can safely proceed on his voyage, he is not entitled
' to his dischage by reason of a temporary illness.

Judgment. — Hon. Henry Black.

The promoter, a carpenter on board the Tweed, claims
his dischfi-rft from the ship and from the ship's articles,
and ';p '., '"n to the time of the discharge, on the
ground tx/iviu liiiring the voyage, and while in the per-
formance of his duty on board the ship, he had received
a wound in L =< ri<^ '. leg, and that he had become so ill
as to render him unable to do any further duty on board
the vessel after the twenty-second of the present month ;
and that the master had refused to procure him any
medical treatment or medicine on board, and refused to
send him to the marine hospital. This is contested
negatively, and it appears from the evidence that the
injury complained of was not sustained in the service of
the ship, but proceeded from an old malady; that the
symptoms now complained of, being a disease of the
bone of the thigh, accompanied by chronic inflammation
of the muscles and a stiffening of the knee, so that it
could not be bent, had come on spontaneously and with-
out any assignable cause ; that during the last five years
he had been better and worse at times ; and that when
he went on board the Tweed, the malady was in a quiet
state, and that he could bend his knee. The physician
by whom he was examined (Dr. Fargues), upon being
interrogated as to whether in the present condition of
the promoter's health, it was fitting and proper that he
should be taken to sea, says, that if the promoter should

FOR LOWER CANADA.

not be required to work he might be taken home in the
vessel, but that he does not appear fit for duty.

Upon these facts the sole question is, whether the
Court would be justified in ordering the discharge of the
promoter, and payment of his wages before the termina-
tion of the voyage. Mere sickness of the seaman does
not determine the contract of hiring between him and
the master. The whole of the provisions of the marine
law on this subject are exceedingly humane, and all
proceed upon the prinbiple that the connexion between
the seaman and the ship is not dissolved by illness
during the voyage. The obligation of the master to take
care of the seaman and provide for his wants during his
illness remains unimpaired ; his wages are still running
on, and it is only his labour and services, and the right to
claim them, which are suspended by his sickness. The
master ought not to leave the seaman on shore when he
sails, without this being absolutely necessary. The policy of
the marine law generally, and of the statutes of the empire
particularly (a), is against the leaving of seamen abroad.
This policy is, however, controlled by the paramount con-
sideration of humanity, and if the seaman cannot safely
be taken back, he must be left on shore. Such cases may
and do not unfrequently occur, but this does not appear
to be one of them. Being of opinion that the master
has not only a right, but is bound to take this seaman
back with him, I dismiss the present action. At the
same time it will be the duty of the master not to require
from the promoter any services that his health does not
permit of his performing. He will do well also to con-
sider how far he will consult the interest of his owners
and others concerned, in going to sea without an able-
bodied carpenter on board.

133

TWKGD.

1-f

! • '■) I

Maguire, for the promoter.
Montizambert, contra.

(rt) 5 & 6 Will. 4, c. 19, s. 41.

134

("ASKS IN THE VICE-ADMIHALTV COURT

Friday, 25ih August, 1837.

ISABELLA— Miller.

Isabella. Application for an attachment for a contempt against a magistrate,

" first seized of a seaman's suit, for haying issued a warrant, and
arrested seaman, whilst attending his proctor for the purpose of
bringing the suit, rejected.

Per Curiam.

This ^3 a motion for a rule on John Jones, Esq., one
of the Justices of the Peace for the District of Quebec,
Daniel Miller, master of the brig Isabella, and John
Walley, a constable, to show cause why an attachment
should not issue against them, on a suggestion that they
have been guilty of a contempt of this Couii; by causing
to be arrested the promoter in this cause while he was in
attendance on this Court, and in going to, staying at, and
returning therefrom, the promoter being a suitor and
under the protection of the Court. In cases of desertion
of seamen, the statute gives a summary jurisdiction to
Justices of the Peace, and impowers any one of them to
imprison the seaman upon conviction of having deseiled (a);
the Court of Admiralty exercising jurisdiction over suits
for seamen's wages, and in cases of damage on the high
seas. Now, whilst on the one hand this Court will main-
tain its authority by protecting its suitors eundo, morando,
et redeundo, it must on the other hand be careful not to
interfere with any other Judge or tribunal in the exercise
of the authority conferred upon that Judge or tribunal by
the law. In this case, not only had the warrant of the
Justice issued, but it liad been actually executed previous

(a) 47 Geo. 3, c. 9, s. 4.

FOB LOWER CANADA.

to the issuing of the warrant which went out of this Com-t

.ssumg of the warrant, and the arrest was made hefore
any ™t actually brought here. The party was nol
a end,ng the Court in a suit there pending, h„ w"
«ttend„,g h.s proctor for the purpose of bringi,!^ the suU
There rs then „„ ground for the present appUcftion. and
the Court rejects it. n , u

135

IsAnELLA,

\i ill

If If J'S

1»6

CASES IN THE VICE- ADMIRALTY COURT

Friday, ^5th August, 1837.

L YDI A — Brunton.

Ltdia. Where a second mate is raised to the rank of chief mate by the

master during the voyage, he may be reduced to his old rank by the
master for incompetency, and thereupon the original contract will
revive.

Judgment. — Hon. Henry Black.

Thift is the case of a mariner shipping as second mate
on a voyage from Sunderland to Painboeuf, thence to
Quebec, and thence back to Sunderland. In the course
of the voyage the first mate is discharged at the foreign
port of PainbcEuf, the promoter is raised to the rank of
first mate, with additional wages, and an entry is made
opposite his name in the ship's articles to the following
effect: — "Made cliief mate 4th June, at £,i 10s. per
month." The promoter proceeds to and arrives at this
port, occupying the place of first mate down to the time
of the arrival of the vessel here. He is incapable to
discharge the duties of this office, he cannot keep the
log, it is kept by the new second mate, and the promoter
dt es not understand navigation. There is no contro-
versy about these facts, they stand upon sufficient proof,
and even the admission of the promoter. The master
disrates him at this port, reduces him to his old rank of
second mate, and is about to ship a new mate. The
promoter conceives that he is not bound to serve in any
other capacity on board the ship than that of first mate,
treats his disrating as a discharge, and brings his action
in this Court for his wages. The question for the con-
sideration of the Court is whether the master is bound to
continue him in his office of first mate, or to discharge
him. I entertain no doubt that he is not bound to do

FOtt LOWER CANADA.

SO, and that he is entitled to require the services of the
promoter, in the capacity in which he was originally
engaged, down to the period of the conclusion of the
contract. The Court is not called upon to say what
would have been the respective rights of the parties,
if the promoter had been equal to the discharge of the
duties of first mate {^„ and the Court intimates no
opinion whatever upon this point, but he being unequal
to the discharge of these duties has no right to insist upon
the master's continuing to employ him in an office for
which he is confessedly inadequate, jeopardising thereby
the lives and property especially confided to the care and
discretion of the master. If the new rating were con-
sidered as an original contract, it was subordinate to the
first contract of hiring, and if it were to be considered
other than a temporary employment ex necessitate, still
the promoter impliedly covenanted for adequate skill,
spondet peritiam artis. That implied covenant in the
subordinate contract was a mutual and dependent cove-
nant ; it being not fulfilled, the original contract at all
events revived, and the articles must be enforced. I
accordingly decree that the action be dismissed, (ft)

137

Ltdia.

Bradley, for promoter.
Aylwin, contra.

(a) See opinion of Lord Stowell,
in the case of the Providence,
1 Hagg. 391.

(J) These temporary appoint-
ments, made by the master of a
vessel on an emergency, are held
at his pleasure, they must neces-
sarily be mere experiments of the
success of which he is to judge.
Assiiredly such an appointment
stands on a very different foot-
ing from that of mate, originally
shipping as such, making his

contract for the office, and for
the wages belonging to it. In
such a case Judge Peters says (1
Peters Ad. Deo. 247), " The mate
is a responsible officer in the ship,
and generally chosen with the
consent of the owners, he is under
the orders of the master in his
ordinary duty, but his contract
is not subject to arbitrary con-
trol." Even, however, in that
case, a mate may be displaced by
the master for good causes to be

188

LVDU.

CASES IN THE VICE-ADMIUALTY COURT

judged of by tlic Court, which
Hhould " be evident, stroiiff, and
legally important." In this case
there can be no question of the
right of theniaster to return him to
his lirst situation in the ship, un-
der the circumstances of an at-
tempt to elevate him, which his
own incapacity and misconduct
defeated. His pretension for

mate's wages from the time of his
appointment to the end of tho
voyage, is altogether untenable,
and must be dismissed. Per Judge
Hopkinson, in tlie case of tho
Nimrod, Gilpin's Ileports of Cases
in tho District Court of the
United States for tho Eastern
District of Pennsylvania, p. 88.

i.' \

«.,>

1 %

FOB LOWER OANAI>A.

139

Timday, 5th September, 18!)7.

BRUNSWICK— TuLLY.

Death of tho master, and Bubstit\itiun of the mate in his plaoc, does
not opui'ate as a discharge of the soamnri.

Per Cnriam,

The sole question iii this cause is whether the death
of the master during tlie voyage, and the suhstitution of
the mate in liis place shall operate a discharge of the
ship's articles. liy the maritime law, upon the death of
the master during the voyage, the mate succeeds him as
InrrcH neccsmrius (a). This rule of law enti is into the
contract, and the seamen on signing the articles virtually
sign them with the mate as master upon the occurrence
of this contingency. Independently of this implied
agreement, the contract of the seamen is not nit rely with
the master, but with the master, slnp and owners, and a
change of the master cannot therefore discharge it (/»).

UntlNSWICK.

V:\

Bradley, for promoter.
Duval, contra.

I I':

(«) Per Lord Stowell, apud 2
Uub. 237. See also Boucher,
iustitutiou au Droit Maritime,
432, 433. United States r.
Hamilton, 1 Mason, 446.

(A) The Atalanta, Bee's llep.
49 ; 2 Boulay Paty, 182.

Valin, i. 532 - Liv. 2, Tit. 7,
art. 2.

Poth., Louago des Mutuluts,
No. 176.

Pardessus, Droit Gommeroial,
iii. p. 136, No. 698.

■'^ifr

!Hj

■ M

^ -ill

140

CASES IN THE VICE -ADMIRALTY COUBT

London.

Tuesday, ^7th October, 1837.

LONDON— DoDsoN.

The order in oounoil of 20th November, 1836, passed to repeal the
table of fees established under the authority of 2 Will. 4, o. 61. —
1st. Had the effect of repealing the same. 2ndly. Did not give force
or validity to the table of fees of 1809. 3rdly. Nor did it authorise
the judge to grant fees as a quantum meruit.

By au Act passed in the second year of the reign of
His late Majesty, for the regulation of the practice to be
observed in the suits and proceedings of the Courts of
Vice-Admiralty, in His Majesty's possessions abroad, and
for the establishment of fees to be allowed and taken in
the said Courts, by the respective judges, officers, and
practitioners therein, it is enacted that it shall be lawful
for His Majesty, with the advice of His Privy Council,
from time to time to make and oiuain such rules and regu-
lations as shall be deemed expedient, touching the practice
to be observed in suits and proceedings in the several
Courts of Vice- Admiralty at present or hereafter to be
established in any of His Majesty's possessions abroad ;
and likewise from time to time to make, ordain, and
establish tables of fees to be taken or received by the
judges, officers, and practitioners in the said Courts, for
all acts to be done therein ; and also, from time to time,
as shall be found expedient, to alter any such rules^ regu-
lations, and fees, and to make any new regulations, or
table or tables of fees. In pursuance of this Act, His
Majesty, by an Order in Council, bearing date at the
Court of St. James, the 27th of June, 1833, was pleased
to approve certain rules and regulations, most humbly
submitted to Plis Majesty in a memorial from the Bight
Honourable the Lords Commissioners of the Admiralty,

FOR LOWKE CANADA. - ' ■>

dated the 19th day of ,the same month of June, touching
the practice and proceedings in the said Courts of Vice-
Admiralty, as laid down in a report of certain referees
appointed by the Lord^ Commissioners of His Majesty's
Treasury, and approved by the Judge, and other compe-
tent law authorities of the High Court of Admiralty of
England ; and His Majesty was further pleased to estab-
lish, by such Order in Council, certain tables of fees pro-
posed and approved by the said authorities, as the only
fees to be taken and received by the Judges, Registrars,
Marshals, advocates and proctors of the Vice- Admiralty
Courts of the respective Colonies, as laid down by the
referees, and approved by the law authorities above men-
tyned: which said rules and regulations and tables of
tees, went into force at this port of Quebec, on the 9th of
May, 1833. Complaints having arisen as to the opera-
tion of tlie table of fees thus established in the Vice-
Admiralty Court at Quebec, His Majesty in Council,
passed an order bearing date at the Court at Brighton,
the 20th of November, 1835, revoking and annulling so
much of the said Order in Council of the 27th of June,
1832, as relates to the establishment of a table of fees in
the Vi'je- Admiralty Court at Quebec, without then making
uiiy new table or tables of fees. Under these circum-
stances the following questions were submitted for deci-
sion in the present case : 1. Whether the Order in
Council of the 20th of November, 1835, had the effect
of repealing the table of fees established for tlie Court,
by the Order in Council of the 27th of June, 1832. 2.
Whether the Order in Council of the 20th of November,
1835, by repealing that part of the order of the 27th of
June, 1832, which related to fees, revived the tariff which
existed previously to the latter date. 3. Whether' the
Judge of this Court was invested with authority to estab-
lish a scale of fees as a quantum meruit.

The cause was argued much at length on the facts in

141

London.

CASES IN THE VICE -ADMIRALTY COURT

the act of Court, by «/. P. Bradley and Dunbar Ross, on
the part of the petitioners, and by George Okill Stuart,
on the part of tlie defendants.

Judgment. — ffon. Henri/ Black.

The act on petition before the Court brings anew
under its consideration the question of the effect of tlie
repeal of the table of fees established for this Court by
His late Majesty "William the Fourth, on the 27th day
of June, 18B2, under the authority of the Act of the Im-
perial Parliament, 2 Wm. 4, c. 51, and the right of the
officers of this Court to take and receive the fees which
were established by the order so repealed, or any other
fees. The act on petition contains three several articles
or positions. The petitioners set forth, that in a certain
suit for salvage services brought in this Court, the defen-
dants tendered and brought into Court the sum of 41/. 1«.,
currency, for these salvage services, and undertook to pay
all costs incurred in this suit up to the date of the tender
and incident thereto ; and that the necessary fees and
disbursements of the petitioners amounted to the sum of
70/. 12s., currency, as appeared by the bill of costs pre-
sented to the Eegistrar for taxation, and filed in the
cause on the 2Uth of September last ; which sum the
petitioners allege they are entitled to have and receive
from the pai'ty, defendants ; but that the Registrar of the
Court declined taxing the said bill of costs, for the
reasons assigned in his report annexed to the bill ; and
they thereupon submit to the Court the following three
several positions or articles. 1. The establishment of
the table of fees on the 27th of June, 1832, by virtue of
the powers vested in His late Majesty under the 2 Wm.
4, c. 51, and its entry and enrolment in the public books
of this Court, pursuant to the requirements of that statute.
The petitioners go on in this article to allege that since
the said entry imd enrolment, the said table of fees has

FOR LOWER CANADA.

148

not been altered, nor has any new table of fees been
made, ordained, and established, nor entered and en-
rolled : that the aforesaid order of His late Majesty in
His Privy Council of the 20th of November, 1835,
annulling, rescinding, and making void the said table
of fees is illegal, no such power, as it is said, being
granted by the said Act : in consequence whereof the
table of fees so entered and enrolled was and still is
in full force and effect, and by which the Registrar of
this Court might have taxed tlie bill of costs in question.
3. The petitioners in their second article set forth that
the said table of fees is much more equitable, although
higher in its charges than the table of fees acted
upon previous to its establishment and enrolment ; and
that the aforesaid Order of His late Majesty in His Privy
Council, of the 20th of November, 1835, was made with
the intention that the table of fees previously in force,
should again be acted upon as being less burtheusome
upon suitors. The petitioners then proceed to set forth
tliat, admitting the order to be legal, and that His late
Majesty in His Privy Council had the power to annul the
aforesaid table of fees of the 27th of June, 1833, tlien
that the table of fees previously in force, and acted upon
up to the entry and enrolment of the first-mentioned table
of fees, to wit, the table of fees established in the year
1809, by the then Judge of this Court, came into force and
effect ; and that the bill of costs in question had been
corrected as near as possible conformable to the last-men-
tioned table of fees, by which the Registrar of the Coiu't
might have taxed the same. 3. The tliird article proceeds
upon the admission that neither of the above tables of fees
is now legally in force ; and alleges that in such case this
Court has the power to award and tax a quantum meruit to
its officers for tlie services by them rendered in the causes
pending before it ; and that unless this Court exercise
such power it will amount to a total denial of justice.

London.

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il I

144

CASKS IN THE VICE -ADMIRALTY COURT

LOMDOB.

The petitioners conclude this article by the allegation
that the bill of costs in question is but a quantum meruit
for the services rendered in this cause and mentioned in
the bill; and infer from these premises that as such
quantum meruit the Registrar of the Court might have
taxed the said bill of costs. They pray in consequence
that this bill of costs may be taxed and signed by the
Judge, as justly and truly due and owing to them by the
defendants. The defendants by their reply allege that
the before-mentioned table of fees of the 37th of June,
1832, has been abrogated and set aside by competent
authority. That previous to and since the establishment
of that table, there was no table of fees legally established
for this Court, or enrolled therein ; and that no table of
fees was ever established or enrolled in the Court,
whereby the Judge of the Court in the year 1809, could
or did authorise the taking of fees. That in the
absence of a table of fees established by legal authority,
it was not competent to the Registrar, or to the Judge,
to tax costs as a quantum meruit or otherwise ; and
consequently that the Registrar had acted legally in
refusing to tax the said bill. Lastly. The defendants
plead that if there were a table of fees legally existing in
the said Court, the charge of the marshal in the bill for
custody, amounting to 32/., would be exorbitant, even if
the marshal had had the custody of the effects upon
which salvage had been claimed and allowed ; whereas it
is alleged by the defendants that, in truth and in fact,
the marshal never had the custody of the same, but that
the custody thereof was in the defendants, by whom no
charge was made or intended to be made against the
marshal or the petitioners. In support of the last article
in the defendants' reply affidavits have been put before
the Court, from which it appears that tiie articles, upon
which salvage was claimed, were in the actual custody of
the defendants or their agent, and not of the marshal,—

FOR LOWER CANADA,

145

the constructive custody, being in the marshal, — as there
had been no formal release of the attachment. In this
state the act on petition is concluded and brought in.

With respect to the last article in the defendants'
reply, the claim therein referred to depends upon the
general question of the power of the Court to award
fees. By the concurrent statement of both part js, it
appears that no expenses were incurred by the marshal
for the custody of these articles; and his claim therefore
must be for a fee of office, by reason of the custody. I
proceed then to consider the general question brought
under the consideration of the Court by the act on peti-
tion before me.

It will at once be seen that the claim of the petitioners
for the allowance of fees in this cause is presented by
them under three several aspects, and as due to them.
•1st. In virtue of the table of fees, established by His late
Majesty in Council, of the 27th of June, 1832, which the
Order of His late Majesty in Council of the 20th of Novem-
ber, 1835, rescinded, or purported to rescind. ' 2ndly. In
virtue of the table of fees which it is said was estab-
lished in 1809, by the then Judge of this Court. And
3rdly, and lastly, as a quantum meruit, to the officers of
the Court for the services by them rendered. Before
proceeding to examine the several positions of the peti-
titioners it will be proper to refer to some general prin-
ciples relating to fees by which the power of this Court,
in common with all other of Her Majesty's Courts, must
be controlled and governed. The establishment of fees
to be taken by the officers of government is really an act
of legislation, and even of taxation. For, it is declaring
that the officers shall not be obliged to dischai-ge the
duties of their respective offices, for the benefit of the
people, and for carrying on the administration of govern-
ment, unless the people will, for every act of duty in their
respective offices, pay them such a)id such stated sums

LONDOM.

f' i

CASES IN THE VICE-ADmRALTY COURT

of money. It is true that a distinction is to be made
between the fees paid to the oflBcers of government for
acts done in the administration of justice, and in the
execution of other necessary branches of civil govern-
ment ; and fees paid to them for acts done by the mere
grace and favour of the Crown, as in granting waste lands,
and other acts of mere spontaneous bounty, and not of
obligation. As to these last, the monies received under
the name of fees, are paid as incident to, and a condition
of the gratuitous grant on the part of the Crown. But
the case is different with respect to such acts as are to
be done in the administration of justice, or the execution
of other necessary branches of civil government, which
the king is bound by his office of king and his coronation
oath to administer and execute for the benefit of all his
subjects. The imposing upon his subjects the condition of
paying fees for these acts of government, would be neither
more nor less than selling them the benefits of t^^*^ 'Imi-
nistration of justice and civil government, at tV.^ . xlce he
thought proper to fix ; which would be directly contrary
to a very important clause in the famous great Charter of
England, which is expressed in these few but signi-
ficant words, nulli t'endemtia, niilli negabimtis aut differemm
rectum rel justitiam. And this rule was so strictly observed
that, by the ancient law of England, " none," says my
Lord Coke, " having any office concerning the adminis-
tration of justice, should take any fee or reward of any
subject, for the doing of his office ; to the end he might
be free and at liberty to do justice, and not to be fettered
with golden fees as fetters, to the suppression or sub-
version of truth and justice, and therefore fae statute
Westminster 1 (3 Edw. 1), prohibiting coroners from
demanding or taking anything of any man to do his
office, upon pain of great forfeiture to the king, was made
in affirmance of the common law {a). And again, by the

(a) Co. Lit. 368 ; 2 Inst. 176, 208-9.

FOB LOWER CANADA.

2()th chap, of the same statute it is provided, that no
slieriff nor other the king's officer take any reward to do
his office, but shall be paid of that which they take of
the king ; and he that so doth shall yield twice as much,
and shall be punished at the king's pleasure." It has
been remarked already, that the establishment of fees is
an act of taxation, and they fall, therefore, under the
general provision of the statute 34 Edw. 1, de tallagio
non concedemlo. The first chapter provides that "no
tallage or aid shall be taken or levied by us or our heirs
in our realm, without the good-will and assent of arch-
bishops, bishops, earls, barons, knights, burgesses, and
other freemen of the land ; " and Lord Coke, who states
that these words are plain without any sample, absolute
without any saving (ft), expressly declares in his com-
mentary upon this Act, that all new offices erected with
new fees are within the Act, for that is a tallage upon
the subject which cannot be done without common assent
by Act of Parliament (c) ; and he says elsewhere, " that
the officers concerned in the administration of justice
cannot take any more for doing their office than has been
allowed to them by Act of Parliament, or by immemorial
usage." And I presume that the immemorial usage referred
to by him is, in this instance as in so many others, consi-
dered as evidence of a statute, or other legal beginning
of the fee. These principles have, at all times, been
recognised as fundamental principles of the law and
constitution of England.

To apply these principles to the questions under
consideration, it will be necessary to look at the subject
of the fees in this Court historically. The first estab-
lishment of the Court itself took place almost imme-
diately after the cession of the country to the crown
of Great Britain; and as early as the year 1764, a

147

LoNPON,

t ,„

*^!:U

::r

(6) 5 Co. Lit. 6C3.

L 2

148

LONUOH.

CASES IN THE VICE -ADOTR ALT Y COURT

commission, bearing date the 24th of August of that year,
was issued by General James Murray, appointing James
Potts, Judge of the Court ; which commission was super-
seded by another issued in the King's name, under the
great seal of the High Court of Admiralty of England,
bearing date the 28th of April, 1768; and the office has
been continued, by a succession of commissions, down to
this day. From 1764 to 1780, there are no records in the
Registry, or documents showing what was done in that
interval of time in relation to fees. In the last-mentioned
year, the Governor and Legislative Council of the Pro-
vince of Quebec, — being then the local legislature, —
passed a temporary ordinance " for the regulation and
establishment of fees," including the fees to be taken in
the Vice-Admiralty Court; which ordinance was con-
tinued by several successive temporary ordinances, the
last of which expired on the 30th of April, 1790 {d). The
records of the Court contain no information of the fees
taken by the officers, in the interval between the expira-
tion of this continued ordinance, and the table of fees
referred to by the petitioners, as having been established
in the year 180U, under the authority of the then Judge
of this Court, and which was generally acted upon by
him down to the passing of the 2 Wm. 4, c. 51, and
the promulgation of the table of fees of the 27th of June,
1832. From this period down to the Order in Council
of the 20tli of November, 1835, this table of fees was of
course acted upon ; and ui)on the last-mentioned order
for rescinding it being received, the deputy of the then
Judge of the Court, — who discharged the duties of the
office ad interim during the absence of the Judge, —
allowed certain fees to the officers of the Court as a
quantum meruit, without reference, as I believe, to any
particular tariff or table of fees. Very soon after entering

(d) 20 Goo. 3, c. 3 ; and 27 Geo. 3, c. 7.

FOR LOWElt CANADA.

140

on the discharge of the duties of Judge of this Court, to
which I was appointed on the 31st of September, 183(t,
my attention was called to the consideration of this
subject in the case of the John and Mary, wherein, after
hearing counsel and giving the best consideration I could
to the subject, I decided that since the passing of the
2 Wm. 4, c. 51, the establishment of fees in the Vice-
Admiralty Court here was exclusively in the King in
Council ; and that the table of fees established under that
statute having been revoked without making another, it
was not competent to the Court to award a quantum meruit
to its officers (e). The subject is now anew brought under
the consideration of the Court in a more formal way,
with a view, as I presume, to obtain an adjudication there-
upon by the Queen in her Privy Council, which I shall
rejoice at, as being calculated to set the question defini-
tively at rest by so high a tribunal.

I have seen no reason to alter the opinion which I had
formed, and expressed in the case of the John and Mary,
and do not feel myself authorised to sanction the taxa-
tion of the bill in question, except as to certain expenses,
amounting to the sum of Al. currency, which indeed are
admitted by the defendants.

The first article in the petition proceeds on the ground
that the table of fees established by His late Majesty in
Council of the 27th of June, 1832, continued in force,
notwithstanding the Order in Council of the 20th of
November, 1835, rescinding the same, which it is main-
tained is illegal. The statute under which this table of
fees was established enacts, that it shall be lawful for
His Majesty, with the advice of His Privy Council, to
make, ordain, and establish tables of fees to be taken or
received by the judges, oificers, and practitioners in the
said Courts for all acts to be done therein ; and also from
time to time, as shall be found expedient, to alter any

LoNroN.

It *

'I
I

(e) See the case of the John and Mary, 26 Oct. 1836.

150 CXHKS IN THE VICE-ADAUItALTY COURT

Loudon. sucli tables of fees. The argument of the petitioners
'~ on this head, as I understand it, is that a power being
thus vested from time to time, " to alter " tables of fees
established under the authority of this Act, and to make
new ones, does not contain in it the power of rescinding
an existing table without substituting another in tlie place
of it. This argument appears to me to proceed upon the
assumption that the power conveyed by this statute is
to be governed by the same rules, and to be construed
with the same strictness, as the law applies to powers
granted by one private individual to another private
individual, in relation to private property and the dis-
posal of it. The reasons and motives of the law appli-
cable to this last class of cases, do not at all extend to
or embrace high administrative powers, vested by the
legislatui'e in the supreme executive authority of tlie
state. As to these last, the construction must be of the
most large and liberal character to give effect to the
discretionary authority delegated by the legislature ; and
it would be too much for this Court, from a nice verbal
scrutiny of the terms of the statute, to act uj^on a table
of fees as of binding force, which had been rescinded by
the same high authority which originally established it.
The establishment of this table was manifestly tentative
and experimental; the order rescinding it is obviously
predicated upon the principle that it required to be
altered fimditup^ and that a totally new table should be
substituted in its place; and there is nothing which
requires that the rescision of the one table, and the sub-
stitution of another more consonant to public convenience
and policy, should be contemporaneous acts. I have no
hesitation, therefore, in holding, that the order of His
late Majesty in Council of the 20th November, 1835, had
the effect of absolutely rescinding and anniilling the table
of fees established by the same autliority on the 27th
June, 1832.

FOR LOWER CANADA.

The second involves the inquiry, whether the repeal of
the table which had been so established by His Majesty
in Council, had the effect of reviving the antecedent
table or scale of fees of 1809, made by the Judge who
then presided over the Court. Tlie rule that the repeal
of a repealing statute has generally the effect of reviving
the original statute, does not seem to be applicable to a
case like the present one. In the case of a statute, the
original statute, the repealing statute, and the Act
repealing the repealing statute, all emanate from the
same comprehensive and uncontrolled source of power,
in the two last cases dealing with its own acts. In
this case the legislature delegates its power, as to the
establishment and regulation of the fees to be taken in
the Vice -Admiralty, absolutely to the King in Council ;
and declares that the fees established and to be estab-
lished by this authority, shall alone be demanded,
received, and talcen. It would seem by this provision,
the power vested was exclusive ; and the repealing of
any given table of fees established under the statute
could not divest, for a time even, the power so given to
His Majesty in Council, which was a continuing power.
By the repeal of a repealing statute, the latter comes to
be for the future as if it had never been ; and of natural
consequence the original statute comes into operation,
unless there be something that manifests the intention
of the legislature that the former statute shoidd continue
repealed. If the same form of reasoning be applied to
a permanent statute like the present, itself unrepealed,
conveying a permanent power of regulation, which power
once exercised has been temporarily intermitted, it will
hardly be found to hold. If, however, the Order in
Council of the 20th of November, 1835, could be consi-
dered as having the effect of reviving any pre-existing
table of fees, it could only be as to a table of fees which
had been legalb established. Now, the table of 1809

161

London.

V; ■ II '1

III

162 CASES IN THE VICE-ADMIRALTY COURT

LoHBOM. was made under the sole authority of the Judge of the
Court ; and with every possible respect for the enlightened
Judge who then sat in tliis Court (/), I have never enter-
tained any doubt that he had no authority to establish
this table ; for nothing is more certain than that " no
Court has a power to establish fees ; the Judge of a Court
may think them reasonable, but that is not binding " (g).
We are, perhaps, not justified in considering that the
Judge did attempt to exercise this power. The defen-
dants having put in issue the promulgation of this table,
I have felt it my duty to direct the Eegisters of the Court
to be searched, and Ine copy in the RegiHtry does not
ai)pear to have been signed by the Judge. Whatever,
therefore, might have been the effect of the Order in
Council of the 20th of November, 1885, in reviving a
table of fees which had been before legally established,
it cannot have the effect of giving validity to a table of
fees lilie that of l&UU, which at no time had legal
force.

The only remaining question is, whether after the
passing of the statute 2 Wm. 4, c. 61, and the establish-
ment of the table of fees of the 27th of June, 1832, and
the annulment of that table by the order of the 20th
of November, 1835, it is competent to the Judge of this
Court to award a quantum meruit, as for fees, or in lieu of
fees. All fees of office jn'operly so called are presumed
to have a legitimate foundation in some act of competent
authority, originally assigning a fair quantum meruit for
the particular service. Here the only competent autho
rity to determine the amount of this quantum meruit, sinci
the passing of the foregoing statute is His Majesty iu

(/) Hon. James Kerr ; ap-
pointed by Letters Patent under
the Great Seul of the High Court
of Admiralty of England, on the
19th uf August, 1797 ; and con-

tinued in office until October,
1834.

(jr) Gifibrd's case, 1 Balkcld,
333.

FOR LOWEU CANADA.

Council. It 18 well known that i)reviuU8 to the passinp; of
this statute, qreut conipluints hail been made of the fees
allowed by the Judge as excessive, and the object of the
statute was to prevent the future exercise of any such
power, and to vest the regulation of the fees in this high
authority. The terms of the statute are too clear to
admit of doubt. It adds to the power given to the King
in Council to regulate the fees, an express prohibition
against taking any fees not so* allowed. The words are
" that the several fees so to be established, and no other,
shall, from and after the making and establishment
thereof, and the entry and enrolment thereof as aforesaid,
be deemed and taken to be the lawful fees of tlie several
judges, officers, ministers, and practitioners of the said
respective Courts ; and such fees only shall and may be
demanded, received and taken accordingly." This pro-
vision is in conformity with the principles of the common
law already adverted to, that the subject shall not be
charged witli any fees not sanctioned by the legislature.
It is true that this general rule has, in practice, I'eceived
a certain modification in the English Courts, but not to
the extent stated by Hawkins (h). He says broadly that
it cannot be intended to be the meaning of the statute
already referred to, 3 Edw. 1, c. 26, to restrain the courts
of justice, in whose integrity the law always reposes the
highest confidence, from allowing reasonable fees for the
labour and attendance of their officers. For the chief
danger of oppression, he adds, is from officers being left
at their liberty to set their own rates on their labour and
make their own demands ; but there cannot be so much
fear of these abuses while they are restrained to known
and stated fees, settled by the discretion of the Courts,
w''ich will not suffer them to be exceeded without the
highest resentment; and he cites in support of this dictum

{h) B. 1, oh. 68, 8. 3.

153

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(

CASES IN THE VICE-ADMIRALTY COURT

the Year Books, 21 H. 7, 17, and Coke on Littleton, 368.
The citation from Coke on Littleton has already been
referred to, but does no^ by any means warrant the posi-
tion of Hawkins ; and I do not find the citation from the
Year Books in the place referred to, nor any note of it in
the index. Besides, the position stated au it is by him,
is contradicted by Gifford's case, which is recognised as
law in all the subsequent cases. At the same time that
the power of the Court to establish fees is denied, it is
said in this last case that if on a quantum meruit a jury
think them reasonable, then they become established
fees, and the case of Veale v. Prior is cited from Hardres,
861. Again in Ballard v. Gerrard (i), Lord Holt expressly
says, that no Court has a power of settling the fees of its
officers, but thus far they may go as to judge what are
ACdSonable fees; the judge's assessing them reasonable
may be good but not conclusive evidence to a jury, and
so of the table of the usual fees of a Court not newly
erected, and after it is once found reasonable by a jury
then it may become conclusive; and cites the before-
mentioned case of Veale v. Prior. The same principle is
recognised in Johnson v. Ley {k), and in other cases. In
none of these cases had the legislature appointed a par-
ticular manner in which the fees were to be regulated
and established ; and I should therefore not feel myself
borne out by these cases, in deviating from the great
salutary principle of the common law, — affirmed, as I
understand it to be, by the stat. 2 Wm. 4, c. 51, — and
granting upon my own authority a fee as a quantum
meruit. At the same time, I rejoice that the power of
regulating the fees of this Court has been placed where
the legislature has placed it, and that the table of 1809
sliould have been superseded.

I must say that if I had been called upon to establish

(t) 12 Mod. 600.

(^) Skin. 580.

FOB LOWER CANADA.

155

a qHantum meruit, I could not have sanctioned charges
like those contained in this bill, which purport to be
predicated upon that table, and are exceedingly exorbi-
tant. The whole amount of salvage found to be due is
41?. 1«. currency. The proceedings in the cause consist
simply of an affidavit and arrest, tender of this amount,
and acceptance of it ; and the fees claimed for the proctor
of the petitioners, registrar and marshal, upon these
summary proceedings, are 701. 13«. currency. If there
had been a legally established table sanctioning such
charges, they would have been vested rights, which I
should not have touched. As it is, feeling that I he : no
power to award fees in this case, I must, — however I may
regret the inconveniences, to which the officers of the
Court are thereby subjected, — confine myself to the
allowance of the 42. charged in the bill for necessary
disbursements, and dismiss the petition as to the re-
mainder of the prayer (/)•

London.

(/) A new table of fees was
established by an Order in Coun-
cil, bearing date at the Court at

Buckingham Palace, the 2nd of
March, 1848.

■1')

!«

,, If,

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156

Nelson

ViLLAOB.

CASES IN THE VICE-ADMIRALTY COUUT

Tuesday, ^Ist October, 1837.

NELSON VILLAGE— Power.

In a cause of collision between two ships ascending the river St.
Lawrence, the Court, assisted by a captain in the Royal Navy, pro-
nounced for damages ; holding, that when vessels are crossing each
other in opposite directions, and there is doubt of their going clear,
the vessel upon the port or larboard tack is to bear up and heave
about for the vessel upon the starboard tack.

Judgment. — Hon. Henry Black.

This is a case of collision between two ships ascending
the river St. Lawrence together, and crossing each other's
path whilst tacking upon opposite points with an adverse
wind, on the night of the 13th-14th of September last.
In this, as in most cases of this description, the enquiry
distributes itself under several heads. It is either a case
in which there is plainly no fault on either side, or in
which there must have been fault which cannot be speci-
fically ascertained and assigned, or in which the fault not
only exists, but can be ascertained ; and this last head
is subdivisible into the cases in which both parties are
to blame, and those in which the party inflicting the
injury, or the suffering party, is alone in fault. These
questions must be determined by reference to the rules
of navigation, as applied to the facts disclosed in the
evidence in the cause. The opinion of the Court will be
founded chiefly on the nautical evidence, and it is with
great satisfaction that the Court can refer to a gentleman
of the experience and knowledge upon these points, of
Captain Bayfield. He has examined tlie evidence, and
being present at the hearing of the cause as assessor to
the bench, will pronounce his opinion upon the facts so
deposed.

Henry W. Bayfield, Captain, R. N., commanding

FOR LOWER CANADA.

167

naval surveying service in the river St. Lawrence, then
said — " I observe that it is established in evidence, that
the weather was clear, the wind moderate, and the vessels
mutually and plainly in sight of each other. I am there-
fore of opinion, that the exercise of a common degree of
prudence and precaution would have prevented the col-
lision, and consequently that the injury complained of
cannot be considered as the result of accident. It is a
rule universally received among seamen, and to be found
in books on seamanship, that when there is doubt, the
vessel upon the larboard tack is to bear up or heave
about for the vessel upon the starboard tack. If, there-
fore, the vessels met, as alleged by the witnesses in sup-
port of the libel, the Nelson Village was bound to bear
up and go to leeward of the Scotia, and nothing but inabi-
lity to do so could relieve *he Nelson Village from the
fault of causing the injury done to the Scotia. But it is
alleged by the sole witness on the responsive plea, that
the Nelson Village was obliged to tack on account of
being so near the Isle Bellechasse that she could pro-
ceed no further without running aground, that she was
tacked in consequence, and that when she came round,
and before she could get her sails filled with the wind on
the larboard tack, the Scotia ran foul of her. Now, if the
correctness of this statement could be admitted, it would
follow that the Scotia )ught to have tacked when she
perceived the Nelson V.'aiage in stays, or in the act of
putting about. But I cannot receive otherwise than
with great caution the evidence of this witness, who was
the prentice pilot in charge of the Nelson Village at the
time of the collision, and consequently a party implicated.
I will, therefore, briefly examine and compare his evi-
dence with that of the witnesses in support of the libel.
In the first place, two out of the four of those witnesses
allege that the collision took place near the middle of
the river, and consequently not near the Isle Bellechasse,

NeIiBON
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CASES IN THE VICE -ADMIRALTY COURT

Nelson

ViLIiAOB.

which is situated near the south shore. Secondly, all
the witnesses on the side of the libel, agree in asserting
that the helm of the Scotia was put down when she
approached near to the Nelson Village, this being borne
in mind, together with the relative situations of the vessels
just before the collision, it is difficult to conceive how the
Scotia's bowsprit could have been carried away, if tlie
Nelson Village had not felt the wind on the larboard
tack, and was, as alleged, motionless on the water. It
seems, on the contrary, much more probable, that in that
case her bowsprit would have been carried away, and that
she would have received the most damage ; for a vessel
running on board of another in such a manner, and with
sufficient force to carry away her own bowsprit and cut
water, could not have failed to inflict most serious injury
upon the other vessel so run on board of. Moreover, in
the responsive plea it is stated, that the Scotia struck
the Nelson Village on the quarter, whilst in the evidence
in support of that plea it is stated, that the bowsprit of
the Scotia went through the foresail and fore-rigging of
the Nelson Village. These two statements are contra-
dictory, they cannot both be true. But when I, in like
manner, examine the evidence on the side of the libel, I
perceive that the effect produced by the collision upon
both vessels, was such as would very probably have taken
place under the circumstances alleged in that evidence ;
for, if the Nelson Village did put her helm down instead
of up, under the circumstances alleged in the libel, her
carrying away the bowsprit and cut-water of the Scotia,
as well as her own fore-rigging, is as easily conceivable
as it is difficult to imagine under the circumstances set
forth in the responsive plea. After weighing, therefore,
deliberately the evidence on either side, and considering
the superiority of the testimony on the side of the libel,
I am of opinion, that according to the evidence adduced
on this case, the fault rests with the Nelson Village alone."

FOB LOWER CANADA.

The Court.— I adopt this opinion with perfect satis-
faction, and assess the damage at Ul. 7s. Ad., currency,
being the actual expense of the repairs, to which the'
demand of the promoter is confined. The question of
consequential damages is not before the Court. I beg
to renew the expression of my thanks for the readiness
with which Captain Bayfield has aflforded his valuable
assistance upon this, as upon a previous occasion, where-
by the Court has been relieved from the necessity of
pronouncing judgment upon a question connected with a
science with which it is but little conversant, and the
public secured in a just application of the rules of naviga-
tion to the facts of the case.

Gairdtier, for the Scotia.

Bourn and Mmtizambert, for the Nelson Village.

159

Nelson

VlIiLAOE.

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CASES IN THE VICE-ADmRALTY COURT

I ;

Friday, lOth November, 1837.

SCOTIA— Risk.

Scotia. Although Justices of the Peace exercising sununary jurisdiction be

— ' the sole judges of the weight of the evidence given before them, and

that no other of the Queen's Courts will examine whether they have
formed the right conclusion from it or not ; yet other Courts uay and
ought to examine whether the premises stated by the Justices are
such as will warrant the conclusion in point of law.

Change of the owners by the sale of the ship at a British port does
not determine a subsisting contract of seamen, and entitle them to
wages before the termination of the voyage.

Judgment. — Hon. Henry Black.

The libel sets forth a hiring of the promoter on a
voyage from the port of St. John's in the province of New
Brunswick, to the port of Greenock in Scotland, and back
to the port of St. John's or some other of the ports in
North America, and a service under this hiring since the
2Gth of May last, from St. John's to Greenock, with
a cargo which was there discharged, and a sale by
the owners of the ship, at the last-mentioned port, to a
third person ; and that such third person had hired the
old master, and divers other persons, as the crew of the
ship, and sent her to this port, where she arrived about
the 15th of September last, and discharged her cargo.
That the ship is about returning to Great Britain, from
whence it is the intention of the present owner to send
her to the East Indies. The promoter proceeds to allege
that the port of Greenock was a foreign port to the said
ship at the time of the sale thereof, and was and still is a
foreign port to the promoter, who resides at and belongs
to St. John's, New Brunswick ; and that being desirous of
proceeding thence (thither), and the master having refused

FOR LOWER CANADA.

to pay him his wages, he instituted proceedings against
the master fo: his wages, before Etienne Parent, Esquire,
one 01 Her Majesty's Justices of the Peace for the district
of Quebec, who, on the 1 7th October last, declared that
the promoter had been, was, and is discharged from the
ship, and ordered tlie master forthwith to pay him his
said wages, amounting to 17^. lOs., and costs; which
order or judgment the master has since acquiesced in,
paid, and discharged. That since the discharge of the
promoter the master has refused to pay him his wages
for ten days succeeding his discharge, by reason of which
refusal the promoter has become entitled to two days' pay
for each of the said ten days, making 2/., for which, and for
the tools, clothes and bedding of the promoter, detained
by the master on board the ship, the present action is
brought.

The defence to this action is contained in a responsive
plea, wherein the master sets forth the hiring of the
promoter at the time set forth in the libel, on an intended
voyage from the port of St. John, New Brunswick, to the
port of Greenock, thence back to a port or ports in
British America or in the United States of America, and
from thence back to a port or ports in Great Britain or
Ireland, and back to a port or ports in British America
or in the United States of America, making St. John's,
New Brunswick, the port of discharge ; and that the
promoter signed articles for this voyage, and that the
vessel is now in the prosecution of it.

The parties have filed an admission of the signing of
these articles, of the sale of the ship at Greenock to the
new owner, pending the voyage, and that the clothes, &c.,
are on board of the ship. The Justice's order for the
payment of the wages of the promoter, referred to in his
libel, is also produced, and is as follows : —

" Be it remembered that on the eleventh day of the
present month of October, which is in the year of our

161

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CASES IN THE VICE -ADMIRALTY COURT

Lord 1837, complaint on oath was made to and before
me, one of Her Majesty's Justices of the Peace for the
district of Quebec, residinp; in the city of Quebec, in the
said district (near to the place where the ship or vessel
hereinafter mentioned discharged her cargo, and where
the master of the said ship then was and now is), in a
case of seamen's wages by and on behalf of Cornelius
Dempsey, late carpenter on board the ship or vessel
called the Scotia, whereof Samuel Risk is master, against
the said Samuel Risk, complaining that there is justly
and truly due and owing to him, the said Cornelius
Dempsey, the sum of 171. 10s., or thereabouts, of lawful
Halifax currency, being a balance of wages due him for
his services as carpenter on board the said ship from the
26th day of May last past to the 10th day of October instant,
on a voyage from the port of St. John, in the province of
New Brunswick, to the port of Greenock in Scotland, and
from thence to this port of Quebec, at the rate or wages
of 61. currency per month, pursuant to an agreement
entered into by the said Cornelius Dempsey with John
Robertson, the owner of the said ship, through the agency
of the said Samuel Risk ; that the said John Robertson
has ceased to be the owner of the said ship, whereby the
contract between him and the said Cornelius Dempsey is
dissolved ; that the property and possession of the said
ship is vested in another person, between whom and the
said Cornelius Dempsey there never was, or intended to
be, any privity of contract; that the said Samuel Risk
neglects and refuses to discharge the said Cornelius
Dempsey, and to pay him his said balance of wages,
although often thereunto requested. And the said Samuel
Risk, duly summoned to appear before me at the Court-
house in the city of Quebec, on Thursday, the 12th day of
said month of October then following ; and on the said
12th day of October the said Samuel Risk appeared in
person and by attorney to answer the said complaint, and

FOR LOWER CANADA.

with the consent of the parties the hearing of the said
complaint was continued to the 14th day of the said
month of October then following; and on the said l4th
day of October, the said parties having again appeared
before me, the said parties, to wit, the said Cornelius
Dempsey and the said Samuel Kisk, were duly examined
on oath touching the said complaint, and the amount of
wages due, and the said parties heard by their respective
counsel, and with the consent of the said parties, the
said complaint was again continued for further hearing to
the 17th day of the said month of October then following.
And on the said 17th day of October the said parties were
again heard by their respective counsel on the merits of
the said complaint, and I, the said Justice, having on the
whole maturely deliberated, and it appearing unto me
that the said Cornelius Dempsey has been and is dis-
charged from the said ship or vessel Scotia, and the sum
of 17^. 10s., Halifax currency, is of right due and payable
to him for his services on board the said ship or vessel
as aforesaid, and it appearing unto me reasonable and
just, did order, award and decide, on the said 17th of
October, that the said Samuel Risk, do forthwith pay to
the said Cornelius Dempsey, the said sum of 17/. lOs.,
Halifax currency, to wit, lawful current money of the
province of Lower Canada, as and for the balance or
amount of wages due and payable to him for his services
on board the said ship or vessel as aforesaid ; and the
further sum of 1/. 17s. Qd. current money aforesaid, as
and for the costs, charges, and expenses incurred by the
said Cornelius Dempsey, in the making and hearing of
the said complaint. In witness whereof, I have hereunto
set my hand and seal at the city of Quebec, this 17th day
of October in the year of our Lord, 1837, and of Her
Majesty's Reign the first. E. Parent, J. P." (L. S.)

The first question which arises upon the issue and
evidence in this cause is, whether the Court is so far

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163

Scotia.

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104

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SOOTIA.

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CASES IN THE VICE-ADMIRALTY COURT

bound by the proceedings had before the Justice of the
Peace as to be precluded from entering into the inquiry
of tlie eifect of tlie sale of the ship upon the contract of
the promoter, and as to be under the necessity of award-
ing restitution of the clothes without entering into the
consideration of the circumstances preceding that order.
If this question be determined in the affirmative, then
there is an end of the cause ; if in the negative, then a
second question arises, and that is whether the change of
owners at Greenock had the effect of discharging the
pi'omoter from his contract.

Upon reference to the cases it might be concluded that
the fact of jurisdiction in cases of summary and limited
jurisdiction like the present is controvertible in other
courts («) ; and it is certain that the Justice cannot give
himself jurisdiction in a particular case, by finding tliat
as a fact, which is not the fact (b). If I were called upon
to assume a jurisdiction in the Justice of the Peace upon
the present occasion, not to be controverted in this court,
I should feel it necessary before adopting any conclusion,
predicated upon such jurisdiction in the Justice of the
Peace, deliberately to weigh various circumstances in the
order itself. 1st. The voyage set forth in the complaint
and order is a different voyage from that admitted by the
parties in this cause. 2ndly. The complaint expressly
negatives an actual discharge by the master, setting forth
as the cause of complaint that the master neglected and
refused to discharge the promoter, and to pay him his
wages ; and the conclusion therefore of the Justice, that
the promoter had been and was discharged from the ship,
could be understood not of an actual discharge by the
master, but of a constructive discharge by mere operation

(a) Terry I'. Huntington, Hardr.
480 ; Fullers v. Fotch, Holt. 287 ;
Carthew. 346 ; Paley on Convic-
tions, p. 337.

(i) Per Latrrence, J., Welsh v.
Nash, 8 East, 394, 403; Paley
on Convictions, p. 337.

f,:

FOB LOWElt CANADA.

166

of law, proceeding from the sale of tlie ship. 3rdly. The
order, not containing any of the examinations or evidence,
this Court has no means of knowing whether the fact of
the pendency of the voyage was befoi'e the Justice or not ;
nor any means of comparing the factp with the legal con-
clusions derived from them. Now, although Justices of
the Peace be the sole judges of the weight of the evi-
dence given before them, and the Court will not examine
whether they have formed the right conclusion from it or
not, yet by setting out the whole of the evidence, an
opportunity is afforded of ascertaining whether the pre-
mises are such as will warrant their conclusions in point
of law (c). But it does not appear to me to be necessary
to enter into these matters upon the pi-esent occasion, for
the only matter directly adjudicated upon by the Justice
is the matter of the wages. When the promoter calls
upon this Court for the interposition of its authority to
enforce another claim, to wit, the claim for the restitution
of the promoter's clothes, this Court must see with its
own eyes. In no form can it be made ancillary to the
Justice's court (d) ; still less can it be required to adopt
without examination, as legal premises on one demand,
those premises which the Justice's court may have adopted
as legal premises on another demand. This would be
true if the whole voyage had been set forth, and had been
shown to have been before the Justice at the time he gave
his order ; but from the order itself this appears other-
wise, the complaint setting forth a voyage terminating at
this port, and the admission in the present cause showing
a subsistmg voyage whereof this was only an intermediate
port. I think, therefore, the Court is bound to proceed
to the consideration of the question secondly put, and to
ascertain, according to the best lights in its power,

SOOTIA.

iri

ed., p. 166, in note.
((/) The Phoebe, 22 Oct. 1836.

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lfi6 CASES IN THE VICK-ADMIUALTV COURT

SooTu. whether the sale of the said ship at Greenock had the
effect of determining the contract of the seamen there.

In support of the position of the promoter that the sale
of the ship at Grecinock had the effect of determining the
contract, lie refers to the 148th and I4t)th capitoH of the
CoHsohtto del Mare which are referred to, but historically
only, by Browne (r), and are as follows ; " 8e patrone di
nave vendera la nare o altro, che la pofcssc fender ad alcuno,
che non ci havense parte, fiitto il salario si debbe pagaro
a I marinari, e nono lihrri, e se li murinari soiio in loco,
che non rolcHnino nucicare, il patrone, a quello che la nave
haverd vendiita e tenuto di fare le npcne a marinari imino che
sieno tornati in quel loco di dove ni partirono;" and " Se nave
navilio si rcnderd in terra d'inp'deli, il patron del navilio
debba dar navilio, e vettovaglia a' marinari insino che siano in
terra de' christiani, dove possino harere recapito." The same
code contains two other articles declaring that the change
of master shall of itself operate as a discharge of the
seamen (/). The two former of these articles which are
in the same spirit as the two latter, seem to contemplate
a change of master, — for such is the import of the term
patrone, even now in th.5 Mediterranean States {g), with
whom this body of laws originated, — and a termination
of the adventure, and a refusal to continue further with
the ship. Now, although doubts may iii older times
have been entertained as to the continuance of the con-
tract of the seaman upon a change of the master {h), yet
nothing is better settled in modern times than that the
seaman, notwithstanding the change, continues bound to
complete his original engagement, the contract itself being
considered as a contract with the ship {i). "With still less

(/) Cap. 158, 294.

[g) Institution an Droit Mari-
time, par Boucher, p. 104, s. 359.

(Ji) Consolato, cap. 168, 294.

(i) Boulay Paty, Cours de Droit
Commercial et Maritime, tome 2,
p. 182. Fothier, Du Louage des
Matelots, No. 176 ; Institution

KOn I.OWKn CANADA.

1«7

semblance of reason could it be held that a change of
owners, the master and voyage remaining the same, could
have the effect of determining the contract with the sea-
men. The liability of the original owner and of the master
to the seamen under the written articles remained unim-
paired by the sale, the security on the ship continued the
same, and there is probably superadded the additional
security of the new owner. If the rule of law were other-
wise, we should find this form of determining the con-
tract specially pointed out by the writers on maritime
law, as well English as French and American, whose
silence affords decisive proof that the principle contended
for on the part of the promoter is not sanctioned by any
legal authority. But if it were even conceded that upon
the sale it became optional with the seaman to proceed
with the ship, that option could only be declared at the
port where the sale took place, and the seaman volun-
tarily proceeding with the ship must be understood to
have waived any right to a discharge by reason of the
sale. Upon these general and obvious principles of
maritime law, it is clear that the sale at Greenock had
not the effect of determining the contract. There is a
statutory provision to be found in the late Seamen's
Act {k), having relation to the seamen belonging to ships
sold in ports out of Her Majesty's dominions, but the
provisions of this statute do not in any manner invalidate
the foregoing conclusion. It is enacted, " That when-
ever any ship whatever belonging to any subject of the
United Kingdom, except in cases of wreck or condemna-
tion, shall he sold at any port out of His Majesty's
dominions, the master in all such cases (unless the crew
in the presence of the British consul or vice-consul, or in

South.

au Droit Maritime, par Boucher,
p. 182, No. 648 ; Kuricke, p. 697,
art. 4, tit. 2. Valia, i. p. 532.

(A) 5 & 6 "Wm. 4, 0. 19, s.

17.

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CASES IN THE VICE -ADMIRALTY COURT

I :
[

j )

Scotia. case of there not being any such consul or vice-consul,
then in the presence of one or more British resident
merchants at such port, shall signify their consent in
writing to be thtre discharged) shall, and he is hereby
required, besides paying them the wages to which they
shall be entitled under tlie agreement, either to provide
them with adequate employment on board some other
British vessel homeward bound, or to furnish the means
of sending them back to the port in His Majesty's
dominions at which they were originally shipped, or to
some port in the United Kingdom, as shall be agreed
upon, by providing them with a passage home, or
depositing with the consul or vice-consul such a sum of
money as shall be by him deemed reasonably sufficient
to defray the expenses of their subsistence and passage ;
and if the master shall refuse or neglect so to do, such
expenses when defrayed shall be a charge upon the
owner whose ship shall be so sold, except in cases of
barratry, wreck, or condemnation, and may be recovered
against such owner as so much money paid and expended
on his account, together with full costs, at the suit of the
consul or other person defraying such expenses, or of
His Majesty's Attorney-General on behalf of His Majesty,
in case the same shall have been allowed to the consul
out of the public monies " (/). This section relates to
sales in ports " out of the Queen's dominions," and is in
advancement of the public policy relating to seamen,
securing theu' services to British shipping to the exclu-
sion of foreign shipping; and even then all that the
master is bound to do, is to furnish them with adequate
employment on board some other British vessel home-
ward bound, or to furnish the means of. sending them
back to the port in Her Majesty's dominions at which
they were originally siiipped, or to some port in tlie

(/) The Merchant Slipping Aoi- 1854 (17 & 18 Vict. c. 104, 8.
20i>) makes similar provision.

til

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FOB LOWER CANADA.

169

United Kingdom. I have entered the more fully into
the grounds of the present judgment, as it is of import-
ance that the rule of law upon this subject should be
distinctly known, and as I am anxious it should be
understood that there is no disposition on the part of
this Court to interfere in any form with the decisions
made by the Justices of the Peace in the execution of
powers confeiTed upon them by the Merchant Seamen's
Act, to enforce against masters of ships the payment of
the wages of their seamen.

Being of opinion that the contract of the promoter is a
subsisting contract with the ship, notwitlistanding the
sale of her, I am bound to dismiss the present suit,
which I accordingly do (m).

Scotia.

{mj 1 jrdonnancenefaitaucune
difference entre Patron et Cajai-
taiiie. Mais dans I'usage, "on
appelle capitaines ceux qui com-
luandent sur les vaisseaux da
Roi equip^s en guerre : on donne
le meme nom a ceux qui com-
mandent sur les vaisseaux des
armateurs qui obtiennent des
comDiissions pour avoir la liberie
de faire des prises sur les ennemis,
ou de les ran9onner. On nomme
aussi capitaine, celui qui com-
mande sur un vaisseau marchand
dcstin6 a un voyage de long cours;
mais ceux qui commandent sur
des barques marchaudes, ou sur
des vaisseaux marohands qui nc
font pas de long trajets, se nom-
uient, sur I'Ocean, Maitrvs ; et
sur la M6diteranue, Patrons" —

Praticien des Juge et Consuls,
p. 386.

Targa, cap. 12, n. 43, dit que
ceux qui commandent des barques
et autres batimens destines pour
le petit cabotage, sent do simples
Patrons de navigation, et qu'il y
a une extreme ditt'erenco entre
ceux-ci et les '^apitaines. Chi li
commamla, non d jiropriamente
capitano, wi« jmtron di naviga-
tionc ; e vi a diff-renza, come dal
cavallo alVasinn : che se ben tutti
son quadriqiedi, neinte di meno il
primo e destinato per cavaijUcre,
il secondo per carallari da con-
dotta ; qucllo porta la sella qucsto
il hasto,

Emerigon, ch. 7, sect. 5, Tome
Premier, p. 193.

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170

The Toronto.

CASES IN THE VICE -ADMIRALTY COURT

Tuesday, 28tli November, 1837.

THE TOEONTO.— CoLLiNsoN.

Assault and battery and opi)ressive treatment by the master of a
ship upon a cabin passenger. Charge sustained.

Judgment. — Hon. Henvy Black.

This is a cause of damage for an assault and battery,
committed by the defendant upon the promoter, John
Frederick Spurke, late an officer in the 95th regiment of
foot, upon the high and open seas, on board of the To-
ronto, whereof the defendant was master, the promoter
being a passenger on board that vessel, on the 6th of
September last. To this suit the defendant has pleaded.
1st — That on the occasion in question the promoter and
the other passengers had made use of language and
expressions intended and calculated to irritate the de-
fendant, and then said, " we are in a good ship, but she
is badly conducted ;" " we have a good ship, if we only
had a better commander." 2ndly — That at the time
mentioned in the libel, the promoter was marking the
quarter deck of the ship with chalk for the purpose of
playing a game called hop scotch; that the defendant
stated to him that the game had been complained of,
to him the defendant, by several of the other cabin pas-
sengers ; and, that as he the defendant was in authority
for the benefit of all, he would not have the ladies in the
cabin annoyed by its being played on the quarter deck,
but that if the promoter wished to play at that game, he
might do so on the main deck. That one of the passen-
gers on the quarter deck then said in a sneering and
irritating tone, " 1 suppose you will allow us to walk on
the quarter deck ;" to which the defendant replied, " thiit

FOR LOWER CANADA.

171

is a question which requires no answer ;" — ^that there-
upon the promoter said, in a tone and manner intended
to insult and irritate the defendant, " I suppose you will
permit us to go down to the cabin," to which the defen-
dant replied, " not unless you conduct yourself as a
gentleman ;" — that the promoter then said, " I have paid for
my passage and shall do as I Uke here, and what is more,
I defy you (meaning the defendant) to prevent me." In
saying these words the promoter came towards the de-
fendant, stamped on the deck, and swinging round his
arm brought his hand or fist close to the face of the de-
fendant ; — that the force with which he swung his arm
caused him to turn round on his heel, and thereupon
the defendant put his hand on his shoulder and slightly
pushed him off ; — that in giving the said push the
defendant used his left hand, which was open. 3rdly. —
That immediately afterwards some of the passengers
went below, and the defendant was standing in the com-
panion ; that the promoter rushed towards him, and
attempted with violence to put him aside; that the
defendant, being thus attacked, resisted the attempt, and
that the promoter then went below into the cabin, and
was not prevented from gaining access thereto as the
promoter alleges in his libel.

The evidence in the cause consists of the depositions
of nine witnesses, whereof six were produced on the
part of the promoter, and three on the part of the
defendant.

Of the witnesses on the part of the promoter five were
cabin passengers on board the Toronto with the pro-
moter. These were Mr. Tylden, a captain in the Royal
Engineers ; Mr. Scriven, of Leeds, in England ; Mr.
Cusack, a graduate of the University of Cambridge, ad-
mitted since his arrival here to holy orders in the Church
of p]ngland ; Mr. Thomas Moore, also a graduate of the
same University ; and Mr. William Smith Burrage, of

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The Toronto.

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CASES IN THE VICE-ADMIRALTY COURT

The Toronto.

Norfolk, in England. The sixth witness, Mr. John
Paddon, was a steerage passenger, and speaks to the
single fact of the defendant having resisted the pro-
moter's entry into the cabin. The other witnesses were
present at and give the transaction from beginning to
end. According to them they were, on the day when
the assault complained of was committed, about to engage
in a game called shuffle board ; which consists in having
a certain number of squares chalked in a parallelogram
upon the deck, numbered from one to ten, and sliding a
piece of wood into the squares from a certain distance ; —
a game which it appears had been previously played
on the same voyage, without being objected to by the
defendant. The promoter v/as in the act of chalking these
squares on the quarter-deck, when the defendant came
from the cabin, or from another part of the vessel, and,
addressing the promoter rudoly, told him that he would
have no hop scotch there, and to rub out the chalk
again ; which the promoter refused to do, saying that the
defendant might let one of his men do it. Upon which
Mr. Tylden observed, " I suppose soon we shall not be
allowed to walk the quarter-deck :" whereupon the de-
fendant said that the promoter had no right to be upon
his quarter-deck, as he was not a cabin passenger ; which
was denied by the promoter, saying that he could show
the defendant's receipt for it, and that he had a right to
go where he pleased in the ship. The promoter seems
then to have been making a turn upon the quarter-deck
— as to exercise the right which he claimed to be there, —
when the defendant seized the promoter by the collar of
his coat, and attempted to shove him off the quarter-
deck, in which he was u: juccessful. The promoter,
extricating himself, turned his back to the defendant,
and, addressing the gentlemen present, called upon them
to bear witness to the assault ; upon which, at the instance
of Mr. Tylden, the passengers, with the exception of the

FOR LOWER CANADA.

173

promoter and Mr. Scriven, retired below, to speak to-
gether upon the occurrence which had just happened.
Mr. Tylden returned to the deck, and addressing Mr.
Scriven, requested him to come down; and as Mr.
Scriven was in the act of descending the companion
stairs, the promoter came round to go down before, and
the defendant opposed his going down, saying, "you
shall not go down, Sir;" upon which the promoter
answered, " I will, Sir ;" and was in the act of descending,
when the defendant pushed him in the corner of the
companion, and seized hold of him to prevent him from
going down into the cabin ; at which moment Mr. Moor,
the mate of the ship, and Mr. Kent, — who was coming
out in the ship to take the command of her here after her
arrival, and has since done so, — came up and laid hold of
the promoter by the arms, but desisted upon the remon-
strance of Mr. Scriven ; and the promoter, then extri-
cating himself from the defendant, went into the cabin.
The defendant followed him into the cabin, insisted upon
being present, but did not subsequently renew his assault
upon the promoter ; and it is therefore not necessary to
state what occurred in the cabin, except to say, that the
passengers came to the resolution of not speaking to the
defendant during the remainder of the voyage, upon his
refusal to apologize to the promoter. The promoter,
upon being applied to respecting the nature of tlie
apology, expressed himself ready to accept any apology
which met the approbation of Lieutenant Tylden and Mr.
Cusack.

The witnesses offered on the part of the defence were
Mr. Kent, Mrs. Barnard, a lady who Avas a passenger on
board the vessel, and Mr. James Moor, the mate. The
testimony of Mr. Kent, and Mr. Moor, contains an
account of a conversation between the passengers upon
the quarter deck, immediately before the defendant's
coming up and prohibiting them from proceeding with

The Toronto.

I I '

Iff!

174

CASES IN THE VICE-ADMIRALTY COUUT

-il i

The Toronto, the game ; the defendant being at the time of this con^
versation within the hearing, but not in sight, of the
parties to it. The Toronto at this moment had not
much sail set, the crew being engaged in shifting her
sails, and bending new sails in lieu of the old ones, which
she had been down to that time carrj'ing. A vessel
passing in full sail at this time, Mr. Tylden observed to
Mr. Kent that he, Mr. Kent, would have topgallant sails
enough to use going home, as the defendant did not seem
to intend to use them on the voyage out ; to which Mr.
Scriven added that the Toronto was a good ship, but
badly commanded, according to Mr. Kent's statement ;
but according to Mr. Moor, the passengers said that
certainly the ship was a good ship, without his hearing
them speak of the master. He heai'd them say that the
sails and rigging were bad, and he understood, from the
way they spoke, that their conversation implied that the
fault was in the defendant, as he did not carry more sail.
Neither of these witnesses say that the promoter indivi-
dually took any part in this conversation. Both concur
with the witnesses for the promoter, in stating that the
defendant denied to the promoter the privileges of a cabin
passenger, and that he pushed the promoter, ordering
him off the quarter-deck ; that he afterwards attempted
to hinder the promoter from going into the cabin, by
standing in his way, and holding him by his clothes. The
conduct of the promoter, as represented by these wit-
nesses, upon his right to be on the quarter-deck being
denied by the defendant, was less temperate than it is
represented to have been by the promoter's witnesses.
Mr. Moor says, that upon Mr. Tylden's saying he sup-
posed they would not be allowed to walk the quarter-
deck, the promoter took it up, and stamping upon the
deck, and swinging liis hand within a foot or eighteen
inches of the defendant's face, said that he had paid his
passage in the ship, and would do as he thought proper.

FOR LOWER CANADA.

175

Mr. Kent makes the same statement, with this difference, Thk Toronto.
that according to him this stamping upon the deck by
the promoter, instead of occurring immediately after Mr.
Tylden's observation, occurred afterwards, and concluded
an angry conversation respecting the right of the promoter
to the privileges of a cabin passenger. The remaining
witness, Mrs. Barnard, on the part of the defence, gives a
very plain and temperate account of the transaction as it
fell under her observation. She was standing, or rather
leaning against the companion when the promoter was
chalking the game upon the deck at the request of the
other passengers. She heard no conversation at this
time between the passengers respecting the sailing of the
ship, but had often, from the time the ship had left
London, heard them say that the ship did not carry sail
enough. The first thing she saw was the defendant
coming on deck, and saying that he would not allow the
passengers to play the game that the promoter was in the
act of chalking, and that he had told them so before ; and
they replied that it was not that game that they were
about to play, but another that would make no noise.
She cannot recollect all the conversation that passed
between them, but thinks that the defendant spoke too
angrily to the promoter in the first instance, and that the
promoter resented it by speaking angrily to the defendant.
In this conversation the defendant said that the promoter
was no cabin passenger, and desired him to go on the
main deck. The promoter refused to go, seemed very
angry, and defied the defendant to send him on the main
deck. She did not see him put his hand near the defend-
ant's face, as she felt grieved at the quarrel, and turned
away. Mr. Tylden, to the best of her recollection, main-
tained that the promoter was a cabin passenger, and the
defendant insisted that he was not, and that he should
leave the quarter-deck ; and on the promoter's defying
the defendant, the latter gave to the former a slight push

I ■■

170

CASES IN THE VICE-ADMIRALTY COURT

I :; f

Tns Toronto, on the back, which (lid not hurt him. The promoter
then turned round, and called upon two of the passengers
to witness that he had been assaulted. Mr. Tylden
having then asked the passengers to go down below, and
they having gone down, the defendant went between him
and the companion door to prevent him, and said, "you
shall not go down ; " and the promoter replied, " I will."
A scuffle then ensued upon the stairs, and the witness
does not know what happened afterwards, but the pro-
moter went into the cabin.

I have been thus particular in giving the facts, as
stated by the different witnesses that I might be
enabled to show wherein all the witnesses agree, wherein
they differ, and to estimate as well the materiality of the
points of difference, as the balance of evidence on the
one side or on the other in relation to the points of
difference.

There appears to be no doubt of the promoter's having
come on board the Toronto as a cabin passenger, and
that he was entitled to all the privileges of a cabin pas-
senger. He appears to have come on board after all the
berths in the cabin were taken up, and consented to sleep
elsewhere. He paid the same price as the other cabin
passengers. His station in life excluded the idea of his
taking a passage of any other character. From the time
that he came on board, down to the occurrence of the
difficulty in question, he exercised all the rights and
privileges of a cabin passenger, as of course, and as
under the circumstances was to be expected. In the
responsive allegation of the defendant it is not surmised
that, in using the quarter-deck or the cabin, the pro-
moter usurped a right which did not belong to him as
a cabin passenger. All the witnesses agiet in the state-
ment that the defendant, upon the occasion of some
words between the parties respecting a game which the
passengers were about to play upon the quarter-deck,

VJ ' ' -

FOR LOWER CANADA.

177

denied the right of the promoter to be upon the quarter- Thr Torosto.
deck, and attempted to push him from it : also, that upon ~^ ' ^
the promoter's being about to go to the cabin, the defen-
dant in like manner attempted to obstruct the promot||^s
passage to it. That the promoter did not upon either of
these occasions use or menace any actual violence to the
defendant, but satisfied himself with maintaining posses-
sion of his right in the quarter-deck and in tlie cabin, as
a cabin passenger, against the actual violence of the
defendant.

The defence of the defendant substantially rests upon
two points ; 1st — That irritating and provoking language
had been used of him by the promoter ; and Sndly — That
the promoter in declaring his determination to maintain
his place upon the quarter-deck, came towards the defen-
dant, stamped on the deck, and swinging round his arm
brought his hand or fist close to the defendant's face, and
thereupon the defendant put his open left hand on the
shoulder of the promoter, and slightly pushed him off.

Although it seems agreed that at this day, no words
whatsoever, be they ever so provoking, can amount to an
assault, notwithstanding the many ancient opinions to the
contrary (a) ; yet if very provoking language is given,
without reasonable cause, and the party offended is
tempted to strike the other, and an action brought, the
Court would feel itself bound to consider the provocation
in assessing the damages (i). It is therefore necessary
to consider the words here set up by the defendant as a
provocation to the act of violence complained of by the
promoter. The witnesses on the part of the promoter
seem to have little or no recollection of the conversation
which immediately preceded the defendant's coming up
to the passengers on the quarter-deck, and directing

(rt) Hawkins, B. 1 , c. 62, s, 1 ;
Bacon'a Abridg. Tit. Assault aud
Battery (A).

[b) CI wilUm's edition of Bacon's
Abridsr.

iil i

178

CASES IN THE VICE-ADMIRALTY COURT

liil

Thb Toronto, them not to proceed with the game which they were
about to commence; which is not surprising, as that
conversation, as given by Mr. Kent, and Mr. Moor, on
th« part of the defence, appears to be altogether imma-
terial, relating only to the quantity of canvass on the ship,
containing nothing personally oifensive to the defendant,
and which could not have been intended to be a personal
incivility to him as he was not in sight, nor so far as they
knew in hearing. In this conversation too, such as it
was, the promoter does not appear to have been an inter-
locutor, nor does the defendant at the time appear to
have remonstrated with any of the parties concerning this
conversation, or to have demanded any explanations
respecting it. On the contrary, passing over the conver-
sation entirely, he denies the right of the promoter to
remain upon the quarter-deck, and attempts to push him
from it. This then offers neither justification nor pallia-
tion for the act of violence complained of.

Then, as to the swinging round of the arm by the
promoter. If we confine ourselves solely to the state-
ments given by Mr. Kent and Mr. Moor, I should be
bound to say that the facts, as given by them under this
head, constitute no justification or palliation to the defen-
dant. Moor states that the hand or fist of tlie promoter
came within a foot or eighteen inches of the face of the
defendant ; Kent states that it came very near the defen-
dant's face ; and both say that it was thereupon that the
defendant pushed the promoter. But it is not stated by
either of them that the promoter's attitude was one
menacing violence to the defendant, so as to support the
' plea of justification son assault demesne. To constitute
such an assault as would justify moderate and reasonable
violence in self-defence, there must be an attempt or
offer, with force and violence, to do a corporal hurt to
another ; as by striking him with or without a weapon ;
or presenting a gun at him at such a distance to which

FOn liOWEU t'ANADA.

170

the gun will carry ; or pointing a pitchfork at him, stand- Tiir TonoNxo.
ing within tlie reach of it; or by holding up one's fist
at him; or by drawing a sword and waiving it in a
menacing manner (c). But upon the statements of these
witnesses themselves, it is apparent that the acts of
violence complained of by the promoter, were done by
the defendant not under any idea of defending himself,
but to enforce his order prohibiting the promoter from
having access to the quarter-deck or to the cabin. If
then the case rested upon the depositions of these wit-
nesses alone, I should feel myself bound to give judgment
for the promoter.

The authority of the master will always be fully sup-
ported by the Courts so long as it is exercised within its
just limits. Here the conduct of the master was unjust
and oppressive in attempting to deprive the promoter of
his right to the use of the quarter-deck and cabin, and
to subject him to the humiliation of being separated from
the society of his fellow passengers, and placed in a situa-
tion generally appropriated to men of a condition inferior
to his own. When, however, I look at the evidence of
the fellow passengers of the promoter, who must have
been exempt from every improper bias, and whose educa-
tion and condition in life entitle them not only to full
credit for veracity, but also to greater accuracy of obser-
vation and a quicker sense of the proprieties of life and
conduct, I am bound in justice to the promoter, to say
there was nothing intemperate in his manner or language,
but that it was marked with a mixture of steady, well-
regulated spirit, and great moderation, which does him
much honour. When pushed by the defendant, in enforce-
ment of his unjust denial of the u°e of the quarter-deck
and of the cabin, he contents liimself with maintaining
his place, without himself resorting to violence, calling

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CASES IN THE VICE -ADMIRALTY COURT

Thb Toronto, upon two of the gentlemen present to bear witness to the
assault to which he had been subjected. Though sworn
to be not inferior in strength to any man on board the
ship, he avails himself of his strength to make his way
into the cabin, against the obstruction of the defendant,
without using any personal violence to him. When he
is asked as to the apology that might be required, he
states his readiness to receive any apology which should
meet the approbation of Mr. Tylden and Mr. Cusack,
two of his fellow passengers ; and during the remainder
of the passage does not appear to have exhibited any
marks of ill humour towards the defendant, confining
hir «■ If simply to avoiding all intercourse with him.
Ti .'- (i^f indant on his part appears to have given way to
a mom-jutary fit of ill humour, leading certainly to most
unwarr-ntable conduct, but fortunately for him not fol-
loweu oy any actual deprivation of the rights belonging
to the promoter as a cabin passenger, nor the humilia-
tion of being separated from his friends and placed in an
inferior part of the ship, from both which he appears to
have protected himself by a conduct at once manly and
temperate. With an obstinacy, which with some classes
of men proceeds from a mistaken notion of spirit, the de-
fendant refuses to make any proper apology, but does
not appear to have followed up this act with any other
acts of insult or oppression.

The case under all its circumstances does not seem to
call for exemplary damages, which I presume are not the
objects of the promoter by the present suit ; and as there
is no cruelty or continued oppressive conduct, I think
the justice of it will best be attained by condemning the
defendant to pay the promoter a sum in the name of
damages equal to the sum which the promoter paid to
the defendant for his passage, and I accordingly decree
to the promoter the sum of 20/. sterling (rf).

{d) Conduct unbecoming a gentleman, in the slrict sense of

FOR LOWER CANADA.

181

the word, will, it seems, justify
a captain of a ship in excluding
a passenger from the cuddy table,
whom he has engaged by con-
tract to provide for there ; but it
is difficult to say in what degree
want of polish would, in point of
law, warrant such exclusion ; but
it is clear that if a passenger use
threats of personal violence to-
wards the captain, the captain
may exclude him from the table,
and require him to take his
meals in his own private apart-
ment. Frendergast v. Compton,
8 C. & P. 454. (Tried before
Tindal, Ch. J., 21st Dec. 1837.)

The Admiralty entertains ju- Thb Tobonto.
risdiotion of personal torts com-
mitted by the master on a
passenger. In the case of The
Ruckers, a civil suit for damages
was brought in the Admiralty,
for an assault by the master of
the ship on a passage on the high
seas, and on full consideration
the jurisdiction was sustained.
Lord Stowell said, " Looking to
the locality of the injury, that
it was dune on the high seas, it
seems to be fit matter for redress
in this Court." 4 Chr. Robin-
son's Rep. 73.

182

CASKS IN THE VICE-ADMIRALTY COURT

Monday, Uh June, 1838.

SILLEEY— Hunter.

SiLLERY. Compensation decreed to seamen out of the proceeds of the materials

saved from the wreck by their exertions.

Per Curiam.

This is a claim by the seamen of the ship Sillery, for
salvage out of the materials saved by their exertions from
the ship, after she had been wrecked at Duck Island, off
Cape Ray, on or about the 1st of May last, on her voyage
from Liverpool to this port in ballast. The seamen were
employed eight days in removing the materials from the
wreck to the brig Pomona, which conveyed them to
Quebec. They having received in advance their wages
lip to the time of the loss of the ship, the only question
is as to the remuneration to which they may be entitled
in saving the materials. For their services, which
extended over a period of eight days, I conceive that
they are entitled to be paid at the rate of five shillings,
and accordingly decree forty shillings to each of them.

Maguire, for promoters.
Gairdner, contra.

ill

FOK LOWER CANADA.

183

HmI

Saturday, \Qth June, 1838.

FACTOR— Price.

;--n

The detention of a vessel daring the winter by stranding in the
River St. Lawrence on her voyage to Quebec, where she arrived in
the succeeding spring, does not defeat the claim of the seamen to
wages during the detention.

Judgment. — Hmi. Henry Black.

The promoter shipped as a mariner on board the
schooner Factor, on the 26th January, 1837, on a voyage
from the port of London to the port or place called Coast
Castle, in Africa, thence to the Island of Madeira, and
thence back to the port of London at the rate of wages of
1/. 5s. per month. The schooner accordingly proceeded
from London to Coast Castle and thence to the Island of
Madeira, where her cargo was discharged and another
taken in ; with the cargo thus taken in at Madeira,
instead of returning to the port of London she proceeded
on a voyage to this port. On her way up the St. Law-
rence, in the month of November last, she took the
ground at Millevaches, about 150 miles below Quebec;
and being situate in the tide-way, and immoveable, was
there exj)osed to the full force of the drift-ice, which was
then beginning to form in great masses. It being the
opinion of the master and crew that the schooner was in
imminent peril of being carried away and destroyed by
the ice, they removed to Green Island, where they passed
the winter. In the course of the winter the promoter was
sent by the master to Quebec, and put into the Marine
Hospital to be treated for a wound or sore occasioned by
his being frostbitten whilst in the service of the schooner.
Contrary to the expectations of the master and crew the

Factor.

• ■

!;,!■■

if'

184

Factor.

\?i

CASES IN THE VICE -ADMIRALTY COURT

schooner passed the winter at the place where she took
ground, and in the following spring was floated and
brought up to Quebec, by the master and the remainder
of the crew. The present suit is brought for the recovery
of wages by the promoter for the whole period of time
from his shipping in London down to the time of her
arrival at Quebec, thus including the time that the
schooner was detained in the ice at Millevaches. On the
part of the defendant it was argued by Mr. Duval, that
the voyage being defeated by a lis major, the seamen lost
their wages. Now, apart from the effect of '.he deviation
by the master in proceeding from Madt. ^a to Quebec,
instead of returning to London, we have here the case of
a temporary interruption of a voyage by a peril of the sea,
which cannot affect the title of the seamen to their wages.
This subject underwent much discussion in the case of
the crews of the British ships detained in Russia, under
the orders of the Russian Government in the year 1800.
In one of the oases arising out of this detention, which
was tried before Lord Alvanley, chief justice of the Com-
mon Pleas, a special verdict was taken, and the Judges
being equally divided in opinion, one of the Judges con-
sented to a judgment in favour of the defendant to enable
tlie plaintiff to bring his writ in error («). This judgment
was subsequently reversed in the King's Bench (b) ; and
the judgment of reversal of the King's Bench was affirmed
in the House of Lords (c), thus definitively settling the
question. In a previous case of Hadley v. Clarke (</),
Lord Kenyon says, " a temporary interruption of a voyage
by an embargo does not put an end to such a contract as
this. If this contract were put an end to, it might equally
be said that interruptions to a voyage from other causes
would also have put an end to it, eg , a ship being driven

(«) Beale v. Thompson, 3 B. & (c) 1 Dow. 299 ( 9th June,

r. 405 (23r(l May, 1803). 1813).

(b) 4 East, 546 (SthFcb. 1804). (d) 8 Term Rep. 266.

FOR LOWER CANADA.

out of her course ; and yet that was never pretended.
Instances of such interruptions frequently occur in voy-
ages from the north -west parts of this kingdom to Ire-
land ; sometimes ships are driven by the violence of the
winds to the ports in Denmark, where they have been
obliged to winter." In another case, Beystrom v. Mills (e),
Lord Eldon says, " There is no doubt that if a ship does
not perform her voyage, the sailors have no title to
wages ; the policy of the law has said so, as the means of
making it the interest of the sailors to preserve the ship ;
but it is equally certain, that if the voyage is performed,
a temporary interruption shall not defeat the claims of
the seamen." These cases sufficiently establish the
general principle, and its application to cases much less
favourable to the claim of the seamen than the present
one ; indeed. Lord Brougham, arguing as counsel for the
seamen in the case of the Russian embargo, before the
House of Lords, puts the very case now before the Court
as one where the claim of a seaman was undoubted, and
upon this point he is not contradicted. " The vessel," he
says, " might be detained for weeks and months by stress
of weather, as in the case of a ship frozen up, and the
mariners taken out and removed to a distance of some
miles, and yet the claim for wages would be good"(/).
Upon the whole I entertain no doubt that the law in this
case is with the promoter, and I accordingly decree to
him his wages from the time of his shipping himself in
Ijondon, down to the time of the arrival of the schooner
in the port of Quebec, being the whole sum demanded.

^Ml

Maguire, for the i^romoter.
Duval, Q. C, contra.

'ii

I I;
I I! I

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(«) 3 Espinasse's, N. P. C. 37.

(/) 1 Dow. 309.

' in

'4 ■■

186

9i.;l

Gkneral
Hbwitt.

CASES IN THE VICE -ADMIRALTY COURT

Wednesday, 20<A June, 1838.

GENERAL HEWITT— Sellers.

Imprisonment of a seaman by a stranger for assault, does not
entitle him to recover wages during the voyage and before its
termination.

Per Curiam.

The libel in this cause states that the promoters
entered into the service of the ship on or about the 31st
of March last, as seamen on a voyage from the port of
London to this port of Quebec, and back to the port of
London. Pending the voyage they enter into an aflfray at
Quebec, and are arrested and confined in the common
gaol, at the instance of the person with whom this affray
took place ; and during their confinement they institute a
suit for their wages accrued at the time of their imprison-
ment, which they conceive they are entitled to as being
unable to proceed on the voyage.

This is not the case of a seaman prevented from ful-
filling his engagement by any act of the masters or
owners, or by sickness or other vis major. The impedi-
ment to the fulfilment of the engagement arises from the
act of a stranger, — proceeding possibly from the fault of
the promoters themselves, but at all events the act of a
stranger, — which cannot discharge them from their en-
gagement to the ship («). If this act be a tortious act,
their remedy is by action against the stranger, but they
can derive no right from it as against the ship.

Bradley, for promoters.
McCord, contra.

(a) Comyn's Digest. Tit. Con-
dition (L. 14) ; 1 Bol. 452, 1. 40;

6 Toullier, L. 3, T. 3, c. 4. s. 609,
p. 646, in note.

FOR LOWER CANADA.

187

Saturday, Wth August, 1838.
MARY AND DOROTHY— Teasdale.

Possession of a ship awarded to the master appointed by the
owner, to the exclusion of the master named by the shippers of the 'v.
cargo.

This was a cause of possession, civil and maritime,
promoted by the owner of the ship Mary k Dorothy, to
recover possession thereof, under the circumstances
mentioned in the following judgment of the Court :

Judgment. — Hon. Henry Black.

This is the case of an attachment of a ship in a cause
of possession. The ship in question was chartered in
England from the owner, with a master and crew pro-
vided by him, to proceed to this port and receive a cargo
here, to be conveyed to England. Some differences
arose between the master, William Teasdale, and the
shippers of the cargo, under the charter party, arising
from the intemperate habits of the master; and the
shippers here obtained from him an authority in writing,
to the effect that if he should again get drunk, it would
be competent to them to remove him, and to put another
master in his place. The master having in point of fact
broken this condition, the shippers dispossessed him of
the command of the ship, putting another master in his
place ; and the present application is in the name of the
owner, for restoration of the ship to the master who had
been so displaced.

Of the jurisdiction of the Court in matters of this kind.

Mart and

DOKOTHY.

' 1

\\i

\i\

|i|

188

CASES IN THE VICE-ADMIRALTY COURT

Mart and
Dorothy.

there can be no doubt {a). The only question then is as
to the effect of the above agreement between the master
and the shippers; and in my judgment it is wholly in-
operative. The shippers of the cargo have no control
over the ship, or its navigation, unless when expressly
given to them by the owner. The owner, who is answer-
able to the shippers for the proper navigation of the ship,
exercises his own judgment in selecting or removing the
master. The shippers are strangers to the contract
between the owner and the master, and cannot, in any
way by their acts, alter or affect the rights and obligations
of these parties, without an express authority to that
effect from the owner. The master, for all the purposes
of the present application, is the agent or prwpositus of
the owner, and has rightly used his name in the pro-
ceedings which have been instituted. It may be that
the owner, if he were here, would be justified in removing
the master, by reason of his intemperance ; and indeed
that it would be highly imprudent in the owner to allow
him to retain the command of the ship ; but this does
not warrant his removal by any other person, without the
authority of the owner. The master might possess
qualities more than compensating — in the judgment of the
owner — irregularities in port, of the kind imputed to
him ; but of all this, I repeat, the owner is the sole judge.
If the Court were to reject the present application, it
must be upon one of two grounds ; either upon the
ground of the above agreement between the master and
the shippers, or, upon the ground of unfitness in the
master for the discharge of his duties as master. The

(«) The "Warrior, 2 Dod. 288 ;
The Guardian, 3 Rob. 93 ; The
Aurora, 3 Rob. 133 ; The New
Draper, 4 Rob. 287 ; The Sisters,
3 Rob. 275, and 5 Rob. 155;
The Peggy, 4 Rob. 304; The
Pai'tridge, 1 Hag. 81 ; Exparte

Blanohard, 2 Barn. & Ores. 244 ;
The Pitt, 1 Hag. 240; TheApoUo,
ib. 306 ; The John of London,
ib. 342 ; The Fanny and Elmira,
Edw. 117; The Lagan, 3 Hagg.
418 ; 3 & 4 Vict. c. 65, s. 4.

FOR LOWEU CANAPA.

189

former ground has already been disposed of, and as to
the latter, I know of no authority in the Court to sub-
stitute its judgment — upon the fitness of the master, and
upon his continuance in the office of master — for the
judgment of the owner, who has put his property into the
care of the master, and is answerable for his acts and
defaults. I shall accordingly decree possession of the
ship to the owner or his legal agent, whom I understand,
the master named by the owner to be in relation to this
ship (J).

Ayltcin and Bradley, for the owner.

McCard, contra.

Mart and

DOKOTHT.

(5) Courts exercising Admi-
ralty jurisdiction, have had
further pDwer given to them in
such matters, by "The Merchant
Shipping Act, 1864," which con-
tains the following enactment : —
"Any Court having admiralty
jurisdiction in any of Her Ma-
jesty's dominions may, upon
application by the owner of any
ship being within the jurisdiction
of such Court, or by the part
owner or consignee, or by the
agent of the owner, or by any
certificated mate, or by one third
or more of the crew of such ship,
and upon proof on oath to the

satisfaction of such Court that
the removal of the master of
such ship is necessary, remove
him accordingly ; and may also,
with the consent of the owner or
his agent, or the consignee of the
ship, or if there is no owner or
agent of the owner or consignee
of the ship within the jurisdiction
of the Court, then without such
consent, appoint a new master in
his stead ; and may also make
such order, and may require
such security in respect of costs
in the matter, as it thinks fit."
(17 & 18 Vict. 0. 104, s. 240.)

-:\

.If

leo

CASES IN THE VICR -ADMIRALTY COURT

Lord John

RUBSELL.

Saturday, 25th Augmt, 1838.
LORD JOHN RUSSELL— YouNa.

1. In case of collision arising from negligence or unskilfulness in
management of ship doing the injury, pilot having the control of the
ship is not a competent witness for such ship without a release ;
although the master is,

2. Ship held liable for collision, notwithstanding there being a
pilot on board.

3. Damages awarded in case of collision in the harbour of Quebec.

The libel alleged that on or about the 27th of May
last, the ship or vessel, the Robert Kerr, James Gourley,
master, of the burthen by admeasurement of 300 tons or
thereabouts, navigated by a crew consisting of fifteen
persons besides the master, arrived at the port of Quebec
with a cargo of salt, and came too, with one anchor, off
the city of Quebec in the port of Quebec. That at about
five o'clock in the ifternoon of the same day, she let go
the larboard anchor and twenty-five fathoms of chain or
thereabouts, and was thus moored by both her anchors.
That about nine o'clock in the evening of the same day,
— the weather being then bright and clear, and the wind
blowing fresh from the east, — the barque the Lord John
Russell, of St. John, New Brunswick, John Young, master,
was driving towards the said Robert Kerr, when John
Acheson, the carpenter of the Robert Kerr, then on watch,
called to the persons on board of the Lord John Russell,
upon her coming within hail, and received no answer;
and just about the same time the anchor of the Robert
Kerr was let go right in front, in the hawse of the said
Robert Kerr; and immediately the Lord John Russell
struck the Robert Kerr, and went right on board of her,
the Robert Kerr then being at anchor to the leeward of

FOR LOWKB CANAnA.

the Lord John Russell. That, notwithstanding that the
crew of the Robert Kerr used their utmost exertions to
separate the vessels, and veered out the cables and
dropped clear of the Lord John Russell, the Lord John
Russell immediately fell on the larboard side of the Robert
Kerr, and was held on by the said Robert Kerr until the
Lord John Russell hove up her anchor to see if the Lord
John Russell could get clear; but that the Lord John
Russell, after remaining there for some time, again let go
her anchor, which caught one of the anchors or chains of
the Robert Kerr, and caused both ships to drive and con-
tinue to do so until they got past the barque Baltic ^.Ter-
chant and brig Forrester. The collision, it was alltt'od
in the libel, occurred wholly through the inattention and
want of skill of the persons on board the T"id Joim
Russell, and not from any inattention or want of skill oi
the persoiib on board of the Robert Kerr. The lil)(lljuit,
in conclusion, specified the injuries done, and stated the
damages at 500/.

The responsive allegation given in by the owner of the
Lord John Russell pleaded that the Lord John Russell
being in ballast, bound to this port, rounded Point Levi,
on the 37th of May last at about half-past nine at night,
under a stiff breeze from the north-eastward; that all sail
was then taken in and close hauled with clue line, bunt
lines, and reef tackles, as is usual when ships are coming
to anchor; and that in about half an hour the pilot
Guillaume Lebel, ordered the anchor to be let go, which
was accordingly done, and forty-five fathoms of chain run
out. That the port of Quebec was then crowded with
vessels, and the weather rather dark ; and that none of
the vessels there, and more particularly the Robert Kerr,
showed lights of any kind, as required by the regulations
of the port. That the Lord John Russell dragged her
anchor some distance, and was at last brought up in the
hawse of the Robert Kerr ; that the boat of the Lord John

101

Lord John
IlusaRLL.

ft-

111

^ >'

> V
I

! )

■k '•'.:

-• 'i*

192

CASES IN THE VICE-ADMIKALTY COURT

Lord Jobn

KUSSBLL.

'A'

v'
h

"IS'

'i !;.

Russell, then hanging at her stern, was crushed by the
bob stay oi the Robert Kerr ; and that the pilot of the
Lord John Russell, to prevent further mischief, cried out
to the people on board of the Robert Kerr, to let out
more chain ; to which the master of the Robert Kerr gave
a rude refusal; that the Robert Kerr did not hail the
Lord John Russell first, but that, after abusing the pilot
for some time, the Robert Kerr let out about five fathoms
of chain, so as to leave the boat of the Lord John Russell
clear ; that the pilot of the Lord John Russell then called
upon the people of the Robert Kerr to let out more chain,
as it was then high tide, and as at the ebb the two vessels
must otherwise come in collision ; that the people on
board the Robert Kerr then announced that they would
not let out any more chain ; and that the Robert Kerr
might have let out, with perfect safety, twenty fathoms of
chain, and in that case the collision would have been
prevented; that upon the refusal of the master of the
Robert Kerr to let out more chain some minutes were
given him to pull down, as he was very violent and angry;
and that after this the master of the Lord John Russell
hailed him again, and asked him to concert measures to
avoid coming into collision at the turn of the tide ; upon
which the master of the Robert Kerr suggested that the
people of the Lord John Russell should take up their
anchor, and that he wouU give them a warp in the mean-
time, so that upon the jumping of the two vessels by the
turn of the tide they might swing clear ; that accordingly
when the two ships swung with the tide, the Lord John
Russell being in the weather side, rather astern of the
Robert Kerr, with the bow just about the fore rigging of
the Robert Kerr, — the anchor of the Lord John Russell
being up, and the vessel secured to the Robert Kerr by a
warp, — efforts were made by the crew of the Lord John
Russell to sheer, but to no avail ; the wind increasing
much, and the vessel being too much abeam, she would

m
y

FOR r.OWKR CANADA.

not sheer : that the ebb tide, by this time, having made
out strong, and the Robert Kerr being loaded and heavy,
and being in advance of the liord John Russell, both
vessels drove right to windward ; and while driving the
master of the Robert Kerr became for the first time a
little alarmed, and desired the master of the Lord John
Russell to let go his anchor again, in order to prevent
driving further, which was immediately complied with,
and seventy fathoms of chain veered out; that this
anchor being insufficient to stop the progress of the two
vessels, the master of the Robert Kerr desired the master
of the Lord John Russell to let go a second anchor, which
was done with sixty fathoms of chain, but to no purpose,
— as the ship still drove in an unmanageable position, —
until they drove upon the brig Forester, by which the
jib-boom of the Robert Kerr was carried away; the two
vessels then drove onwards until brought up by the
barque Baltic Merchant : that being then unmanageable,
and the wind being high, they received much damage in
their hulls, spars, and rigging, by damage-collision one
whole tide : that it was fully in the power of the master
of the Robert Kerr to have let out more chain when first
desired to do so, and that if he had done so, all damage
and loss to the said vessel would have been avoided, inas-
much as though at that time the boat hanging at the
stern of the Lord John Russell had been injured, no
injury whatever had been done to the Robert Kerr ; and
that at the same tide, and nearly at the same place, the
ship Ocean was driven by stress of weather from her
moorings and sent ashoi'e in the river St. Charles.

From the evidence it appeared that in the afternoon
and evening of the 27th of May last, the Robert Kerr was
moored with two anchors, opposite the India wharf in
the2 harbour of Quebec, and that the Lord John Russell
coming into the harbour from sea, with a flood tide and a
fresh wind from the eastward, — t^ -^ night being sufficiently

193

Lord John
Ri'ssF.r,i,.

I'M

1
! j,

I . I:-

I I

ill

Hi lii-

11! r

III

aiH

ill!

194

Lord John

RUSSKLL.

TASKS IN THK VICE-ADlSriRAI/TY rOURT

light and clear to admit of a ship heing seen at a con-
siderable distance, — let go her anchor at about half-past
nine in the evening or night, in the hawse of the Robert
KeiT, and thereby gave her a foul berth. This fact was
established by many of the witnesses in the cause, and
contradicted by none ; and to it was to be attributed the
collision, and subsequent damage to the Robert Kerr.
The occurrences which afterwards took place were sub-
stantially as set forth in the libel.

JuDGJiENT. — Hon. Henry Bfack.

1. A i)reliininary question has been raised as to the
competency of the master of the Lord John Russell and
of the pilot of that ship, as witnesses for the defence. It
appears to me that the master was a competent witness,
but that the pilot was not, without a release from the
owner (a). The pilot was substituted in the place of the
master in the navigation of the ship, and the master
ceased therefore to be liable as such ; the whole of the
liabiUty for default, negligence, or unskilfulness came to
rest upon the pilot. Roccus says, " Nuvis ctiam habet
pilotum, qui est ilk, qui navcm regit in navigando, ct plenum
scientiam, et noutiam artis navigandi habere tenetur. Eligitiir
rero pihtus a magistro navis, ct obligatur ad omne damnum,
quod contigerit ex ejus culpa, imperitia aut negUgentia in
regendo navem, et obligatus est, etiam de lemssima culpa non
exercendo exactissimam diligentiam " {h). To allow the pilot,
having the control of the navigation of the ship, with the
consequent obligations, to be examined as a witness for
the ship whereof he was pilot, would be to make him a
witness in his own cause, and for this reason he has been
considered as an incompetent witness {c). Whilst the

{a) As to the practice of ex-
amining witnesses unfler a re-
lease, tice 5 Rob. 343, in note ; 2
Ilagg. 149, in note.

(6) De navibus et Naulo, Not.

ix., Num. 20, 21, 22.

(r) Martin ??. Ilenrickson, L.
Uaym. 1007, and Salk. 287 ;
Hawkins v, Finlayson, 3 Cur. &
Pay. 319.

FOR LOWER CANADA.

195

master exercises the control of the navigation of the ship,
and before delegating his authority to the pilot, as the
liabilitj' is with him, so also is he an incompetent
witness {'I). It does not appear in this case that he
divested the pilot of his control over the ship, and I think
therefore that the master is a competent witness. The
question having been raised at the bar, the Court felt
itself called upon to determine it, although the material
facts in the case are established by evidence apart from
the testimon}' of these witnesses.

3. It has been argued that the Lord John Russell, being
under the management of a pilot on board, the owner was
discharged from all responsibility arising from the col-
lision, but the law is otherwise. This question came
under the consideration of the Court in the case of the
Cumberi d (e), and in that case the Court held that the
ship was liable for a collision arising from her being
unskilfully or negligently navigated, although under the
control of a regular pilot on board. I have seen no reason
to doubt the correctness of the conclusion which the
Court then came to. Under the general maritime law,
the power of the master, as to the navigation of the
vessel, being suspended while the pilot is in charge of the
vessel, his personal liability for the management of the
ship necessarily ceases ; but it by no means follows there-
from that the ship itself and her owners shall not be
answerable for damage done by her in consequence of the
fault of those having the charge of her, whoever they may
be. In examining the question here, it must be looked
at without reference to the English Pilot Act (/), and we
must seek for decisions and authorities as to the liability

Lord John
Russell.

■f:>a

l '3

^ 'It

t !!|

I If

■'k

!■;,,

(d) Bird v. Thompson, 1 Esp.
N. P. C. 339 ; Cuthbert o. Oost-
liug, ;{ Camp. 515 ; Green r. The
New River Company, 4 Term.
Hep. 589 ; Miller f. Falconer, 1

Camp. 251 ; Boweher t'. Noid-
strom, 1 Taunt. 568.

{e) 8th November, 1836.

(/) 6 Geo. 4, c. 125.

if*« .'I

ii'

ill

196

Lord John

KnSSELL.

CASKS IN THE VICE-ADMIRAIiTY COURT

of the offending ship, unconnected with this Act, which
relieves owners from the obligation to which, as owners,
they are by the common maritime law liable. The general
law upon this subject is stated by Lord Stowcll, in the
case of the Neptune the Second (g), the authority of which
remains unimpeached : — " It is acknowledged in this case
that the damage was done by the ship proceeded against ;
but it has been set up, in the way of excuse, that she was
at the time under the care of a regular pilot, and was
acting in obedience to his directions; and it has been
contended in the argument that the pilot alone is answer-
able for any damage that may have been sustained in
consequence of the mismanagement of the vessel. If the
position could be maintained that the mere fact of having
a pilot on board, and acting in obedience to his directions,
would discharge the owners from responsibility, I am of
opinion that they would stand excused in the present
case ; for I think it is sufficiently established in proof,
that the master acted throughout in conformity to the
directions of the pilot. But this, I conceive, is not the true
rule of law. The parties who suffer are entitled to have
their remedy against the vessel that occasioned the damage,
and are not under the necessity of looking to the pilot^
from whom redress is not always to be had for compensa-
tion. Tlie owners are responsible to the injured party for
the acts of the pilot, and they must be left to recover the
amount as wtU as they can against him. It cannot be
maintained that the circumstance of having a pilot on
board, and acting in conformity to his directions, can
operate as a discharge of the responsibility of the owners."
In questions of this nature we may also refer to the
decisions of foreign courts as authorities. In 1806, it was
decided by the Supreme Court of Pennsjdvania (A), that

I't

{ff) 1 Dodson's Rep. 467.

(//) Hussy V, Donaldson, 4
l^alliis, 206.

FOR LOWER CANADA.

the owner of a ship doing damage to another is Uable,
though the ship was in charge of her pilot. The prin-
ciple appears to be that the pilot is substituted in the
place of the master, and the master ceases therefore to be
liable as master, but the owners remain answerable for the
conduct of the new temporary master, — the pilot, — in
the same way, and to the same extent, that they were
answerable for the conduct of the master himself, so far as
the navigation of the ship is concerned. Chancellor Kent,
to whom the science of the law is so much indebted,
recognises, in his Commentaries on American law, the
principle so clearly laid down by Lord Stowell. " It may
be here observed," says Chancellor Kent, " that it is the
duty of the master engaged in a foreign trade, to put his
ship under the charge of a pilot, both in his outward and
homeward voyage, when he is within the usual limits of
the pilot's employment. The pilot when on board has
the exclusive control of the ship. He is considered
as master pro hac vice, and if any loss or injury be sus-
tained in the navigation of the vessel while under the
charge of the pilot, through his default, negligence, or
unskilfulness, the owner would be responsible to the
party injured for the act of the pilot, as being the act of
his agent. Some doubt has been thrown on the point by
a dictum of Ch. J. Mansfield in Bowcher i\ Noidstrom (t),
but the weight of authority, and the better reason is,
that the master in such a case, would not be responsible
as master, though on board, provided the crew acted in
regular obedience to the pilot" (A). Mr. Justice Story,
who has enriched the maritime jurisprudence of the
United States with so many valuable decisions, admits, in
his edition of Lord Tenterden's work on shipping, the autho-
rity of the two foregoing cases (l), and Mr. Bell, whose
work on commercial law occupies so high a place, says : —

(0 1 Taunt. Rep. 568.
(k) 3 Kent's Com. 135.

(/) Abbutt on Shipping, p. 21U,
in note.

197

Lord John
Russell.

MiH

l?R

'il

isfl

I ' y,

198

Lord John
RunaBbL.

CASES IN THE VICE-ADMIRALTY COURT

" In cases of collision, it is no defence to the owners that
the ship in fault is under the direction of the pilot, and
that the remedy lies against him. They are liable, in
the first place, and must seek their remedy against the
pilot" (m). These authorities are further confirmed by the
decision of Sir John Nicholl, in the case of the Girolamo,
in the year 1835 (h).

3. But, it has been set up on the part of the Lord
John Russell, that the injury sufiered by the Robert Kerr
arose from the fault of the people on board of that vessel ,
after the Lord John Russell had come to anchor. There
does not appear to me to be any ground for this charge
against them. When one ship is at anchor it augurs
great want of skill and attention in a harbour like that
of Quebec, for a ship under sail to be so brought-tt>
as to run foul of her(o). Besides the injury is proved
beyond a doubt to have arisen from the unskilful man-
ner in which the Lord John Russell was brought tr
anchor, and without any fault on the part of the Robert
Kerr. There has been evidence offered to show that
the damage suffered by the Robert Kerr amounted to
^508 14s. 6irf- currency, and that this sum was actually
paid for her repairs ; I shall, however, give an interlocu-
tory decree for the damage, referring the amount to the
Registrar and merchants to report thereon.

At a subsequent day the Registrar, having taken to his
assistance Thomas Froste, and William Stevenson, Esqrs.
reported the damage to be ^404 9s. 4rf. currency, and
this report was confirmed.

Duval, Q. C, and Anderson, for the Robert Kerr.
Aylu'in, contra-

(m) 1 Bell's Com. 583.

(«) Nautical Mag. for Dec,
1835, No. 46, vol. iv. \). 797, aud
3 Hagy. 169.

(o) Consolato del Mare, cap.
197; Eineriguii i. 416; the case
of tliL' Girolamo, 3 Hagg. 173.

FOn LOWER CANADA.

Note. — In April, 1853, on appeal to the Circuit Court
of the United States for the third circuit, in the case of
The Creole, a British ship bound out, and in charge of a
licensed pilot, the Court reversing the judgment of the
District Court, held that the owner was not released from
responsibility, in a case of collision, from the circumstance
of having a pilot on board. Mr. Justice Gn'er, in de-
livering the opinion of the Court in that case, thus stated
what is the American maritime law upon the subject : —

The position assumed on behalf of the ship, and by
which it is sought to cast the responsibility on the imme-
diate cause of it, — the pilot, — raises a question of vast
importance in its bearing on our bay and river navigation.
In most, if not all the ports of the United States, the
laws for licensing and regulating pilots are enacted by
the different States in which the ports are situated : and
however variant they may be in their details, they gene-
rally require a vessel entering or leaving a port, to employ
a licensed pilot. The persons licensed are seldom of
sufficient property to respond to damages for their acts of
negUgence, nor are they required to give security to a
sufficient amount to meet such responsibility. If the
colliding vessel be discharged from liability, while under
the direction of a licensed pilot, and recourse for the
injury can be had against the pilot alone, the injured
party will, in most cases, be wholly without remedy.

It is a violent presumption against the validity of this
defence, that in the numerous cases of collision daily
occurring in the United States, in many or most of which,
no doubt, the vessels have been under the control of
licensed pilots, the owners have not endeavoured to avail
themselves of it. Nor has the learned counsel for the
respondent, with all his research, brought to ray notice a
single case in the common law or admiralty courts of the
United States, where the defence has been held available.

100

Loud Jouk

HUHSELL.

',1

t !

»' IE

'i i

liS

200

Lord John
Russell.

CASES IN THE VIOE-AUMIUALTY COHllT

On the contrary, in the case of Bussy v. Donaldson (p), in
the Supreme Court of Pennsylvania, when this was set
up, it was not sustained, and Chief Justice Shippen,
speaking in 1800, of the pilot law of Pennsylvania, — an
earlier law than the one now in force, but in this par-
ticular section the same as the present one, — says, " The
legislative regulations were not intended to alter (tr
obliterate the principles of law, by which the owner of a
vessel was previously responsible for the conduct of a
pilot ; but to secure, in favour of every person (strangers
as well as residents) trading to our ports, a class of ex-
perienced, skilful, and honest mariners, to navigate their
vessels safe up the bay and river Delaware. The mere
right of choice, indeed, is one, but not the only, reason
why the law in general makes the master liable for the
acts of his servant : and in many cases where the respon-
sibility is allowed to exist, the servant may not in fact be
the choice of the master. For instance, if the captain of
a merchant vessel dies on the voyage, the mate becomes
captain, and the owner is liable for his acts, though the
owner did not hire him originally, or choose him to
succeed the captain. The reason is plain ; he is in the
actual service of the owner, placed there, as it were, by
the act of God. And so in the case under consideration,
the pilot was in the actual service of the owner of the
ship, though placed in that service by the previous act of
the legislature.

The doctrine that the owners are not liable for a
collision by their vessel when under the control of a
licensed pilot, was first introduced in England by the
Pilot Act of 52 Geo. 3, c. 39, passed in 1812. Previous
pilot laws, although they required every vessel to take on
board such a pilot under penalties, did not discharge the
owners from liability for their negligence. It appears by
the case of Bowcher v. Noidstrom {q), which was decided

(^>) 4 Dallas, 206.

{q) 1 Tauuton, 568.

FOR LOWER CANADA.

901

before Chief Justice Mamjieid in 1801), that this notion
that a licensed pilot was not considered a servant or
agent of the owner, had obtained no place in courts of
justice ; for the Chief Justice held the waster liable, on
the assumption that he represented the ship or owners ;
and the case was reversed, not because his legal position
was incorrect, to wit, that the ship or owners would have
been liable for the act of either master or pilot, as their
servant ; but because one servant was not liable for the
act of another, who was not his subordinate. The case
oi' Fletcher v. Braddick (r), though not directly in point,
seems not to recognise the same principle. In cases of
collision, the injured party has a remedy by action at
common law, not only against the owners, but the master.
And although the master of the vessel is the servant of
the owners, and they are liable for his acts in the course
of his employment, he is an exception to the general rule,
that the remedy of third persons for the servant's acts of
negligence is only against the master. As the pilot,
when on board, has the absolute and exclusive control of
the ship, the master might well defend himself against
liability for the acts of one over whom he has no control
or authority. Therefore by the maritime law the master
is not held liable for the acts of mariners, who are not
of his own choosing, and who are not acting under his
orders (s). The pilot is for the time master of the vessel,
and substituted in the place of the captain, with the same
duties and responsibilities. But it is far from being so
clear as a principle, either of maritime or common law,
that the vessel or the owners are discharged from respon-
sibility for the same reason.

Pilot laws are intended not to burthen commerce, but
for its benefit and safety.. As a general rule, masters of
vessels are not expected to be, and cannot be, acquainted
with the rocks and shoals on every coast, nor able to

Loiu) John

UUMSRLL.

;i:^l

.if

III

(/•) 5 Bos. & I'ul. 182.

(«) Molloy, B. 2, c. 3, see. 12.

i;il

202

CASKS IN THE VICK-ADMinALTY COUUT

LuRD JonN

KoSSELIi.

conduct a vessel safely into every port. Nor can the absent
owners, or their agent, the master, be supposed capable
of judging of the capacity of persons offering to serve as
pilots. They need a servant but are not in a situation to
test or judge of his qualifications, and have not therefore
the information necessary to choice. The pilot laws
kindly interfere, and do tliat for the owners which they
could not do for themselves. It selects persons of skill
and experience, and requires them to give bonds for the
faithful performance of their duties ; and if it should
happen in some particular cases, that owners may not
need the services of such pilot selected by law, it is but
just that they should contribute to the support of a system
instituted for their benefit. This compulsion which is
supposed to annul the relation of master and servant
between pilot and owners, is more imaginary than real.
It has its origin rather in minute verbal criticism of the
language of the pilot laws, than on fact. The Pennsyl-
vania pilot law, it is true " obliges " a pilot to be taken
on board, under the penalty of paying half pilotage. But,
as has often been said, there is no magic in words ; for,
after all, it amounts only to this, that vessels which do
not find it necessary to avail themselves of the services
of pilots provided for them by the law, may be piloted by
the master or other person, if they prefer it ; but in such
case they will be required to pay a small tax, equal to
half pilotage, for the benefit of the wives and children of
those whose lives are daily exposed to peril and hardship,
for the pui-pose of tendering their services, if needed.
The assessment of a tax for the support of a system so
beneficial to ship owners, where the services are declined,
is no compulsion, and calling it a penalty will not alter
the case. The vessel when under the control of a pilot,
is in the legal possession of the owners. The pilot is
their servant, acting in their employ, and receiving wages
for services rendered to them. The fact that he was

roil LOWKll CANAD.V,

ft08

selected for them by persons more cajiablo of judging of
his qualificatious, cannot alter tlie relation which he bears
to the owners. He is still their servant.

The Court of Exchequer in the case of The Attorney-
General r. Case (f), confirm what I have said, that before
the Pilot Act of 53 Geo. 3. (1812), the owner was held
liable for the act of the pilot as his servant. They
decided also, that the Liverpool Pil'^t Act was not com-
pulsory or penal, though it required tin vessel to ))ay the
pilot's wages, whether it employed him or not. In the
case before us the master may decline the services of the
pilot, by paying half his wages. I am well aware tlmt
Dr. Lushington, in the case of the Maria (u), which azose
on the Newcastle Pilot Act, has given a different construc-
tion to the Liverpool Pilot Act, because it uses the words
" oblige and require."

The English cases on the subject since 1812 cannot
be reconciled with one another, and have not been adopted
as precedents here. On the contrary the case of Bussy
V. Donaldson, from which I have quoted the opinion given
by Chief Justice Shippen, has been adopted as founded
on the sounder reasoning (j"). And in 1847, quite inde-
pendently of that precedent, and without the least refer-
ence to it, the Supreme Court of Pennsylvania again
interprets tlie statute before us in the same way as he
did the one before him, in this respect, exactly like it {y).

They say, " The legislature have wisely decided not to
com2)el the owners to employ a licensed pilot, but have
permitted them, if they please, to compound by paying
half pilotage, for the benevolent and beneficial purpose of
relieving distressed and decayed pilots, their wives and

Loud John

llUSSKLL.

lit

L. I

{t) 3 Price, 302.

(m) 1 W. Robinson, 95.

{x) Yates v. IJrown, 8 Pieker-
ing, 23 ; Williamson v. Price,
16 Martin, 399 ; 3 Kent's (Jom.,

175-6.

(//) Flanigan v. The Washing-
ton Insurance Company, 7 Barr.
31.

%'\\

■

S04

LdKn John

RUSSKLL.

CASKS IN THK VICE-ADMIKALTY COUllT

children. Tliis Act sets out an inducement to nvnil them-
selves of their services, but does not compel them to do
80. This construction of the Act is reasonable and just."

Thus far I have considered the question on the prin-
ciples peculiar to the common or ciril hw relating to master
and servant, rather than those of the maritime law. Thf
proceeding in this case is in rem, for a maritime tort.
The rights and remedies of the libellants are to be testi'd
by tie principles of that law, unaffected by any statutory
provision. A proceeding in rem in Admiralty is not a
mere attachment to compel the appearance of the owners,
as in civil law proceedings, and attachments under the
custom of London, which are not proceedings in rem, in
the Admiralty sense of the phrase. The Court of Ad-
miralty proceeds on the principle that the vessel itself is
hypothecated by the contracts, as well as the obligations
arising ex delicto of the master, and is herself liable for all
maritime liens. The owners and others interested, are
allowed to intervene pro interesse sxo ; and for convenience
of trade and commerce, are permitted to release the vessel,
by substituting their stipulation and security in its place.
But the property attached is, in all cases, treated as the
debtor, and primarily liable.

By the maritime law, the power of the master to bind
the owners by his obligations ex delicto, did not extend
beyond the tacit hypothecation of the property in his
possession. By surrendering the hypothecated vessel,
the owners escape further liability, or if they intervene,
cannot be made liable beyond her value.

These principles which prescribe the powers of the
master of a vessel, are not drawn from the doctrine of the
civil law concerning the relation of master and servant,
but had their origin in the maritime usages of the middle
ages. By these the ship was bound to the merchandise,
and the merchandise to the ship ; and both are bound for
the mariners' wages, *' even to the last nail of the ship."

FOR LOWKn CANADA.

2i)r)

l^y these the master wns iiuthoriscd to bind the vessel by
bottomry. And by these the vessel becomes hypothe-
cated for the obligations of the master arising ex (Iciicfo,
and is herself treated as the debtor or offender. Hence,
also, the vessel becomes bound to those who dealt with
the master, whether lie was appointed to act as their
agent, or the ship was let to him (jn charter party. It is
unnecessary to make an array of the various European
writers on this subject, as authority for these statements :
I refer for them to the opinion of Judge JFare, in the
cases of the Spartan, the Rebecca^ and the Phoebe (s), in
which the origin and x)rinciples of maritime law affecting
the liability of vessels for contracts of the master are
treated with the ability and research which distinguished
that Judge.

It would seem to follow from these principles, that
third persons who may be supposed to be ignorant of the
owners, have a right to treat the vessel as primarily
liable, ex delicto, for the acts of the owner, who has the
legal possession and control of her movements. The
pilot is master for the time being — as such, also, he is
legally in possession, acting for the owners, and in their
service. The law which hypothecates the vessel for
negligent or wrongful acts of her commander, does not
stop to inquire as to the mode of his apjiointment, or the
motives or degree of consent which accompanied it.

It is in accordance with these principles that the case
of the Neptune the Second (a) was decided by Sir WilUam
Scoff, in 1814, two years after the passage of the Pilot Act
of 53 Geo. 3, already referred to. It is supposed by Dr.
Lushington (b), that the learned Judge overlooked the pro-
visions of that statute ; but as a true statement of the
maritime law unaffected by statute regulations, it has

Lord Joiim
Uiissi'bi..

(s) Ware, 138, 188, 263, &c.
(«) 1 Dodson, 467.

(b) 1 W. Robinson, 49.

I . r

200

CASES IN THE VICE-ADMmAI,TY (JOUllT

Lord John

RUSSKLL.

never been impugned. In that case the pilot was wholly
in fault, and it was objected that the vessel and the
owners were not liable for the damages occasioned by the
collision. But Sir William Scott asserted the law to be
" that the parties who suffer are entitled to have their
remedy against the ressel that occasioned the damage, and are
not under the necessity of looking to the i)ilot for com-
pensation. It cannot be maintained that the circum-
stance of having a pilot on board and acting in conformity
with his directions, can operate as a discharge of the
responsibility of the owners."

I am authorised to say that the point of law now before
us, has been decided by my brother Wayne, in the dis-
trict of South Carolina, in the same way as I now
determine it.

FOB LOWKR CANADA.

207

Thursday, 20fh September, 1838.

DELTA— :Murray.

Attachment decreed for contempt in obstructing the marshal, in the
execution of the process of the Court.

Per Curiam.

In this case it is stated in the affidavits that the master
of the brig Delta had obstructed the marshal in the execu-
tion of the process of the Court, and had weighed anchor
after the vessel had been regularly attached in this cause,
with the intention of proceeding to sea, and was only pre-
vented from doing so by a naval force acting under the
authority of 'he marshal of the Court. The Court decreed
a monition to show cause why an attachment should not
issue for a contempt (a). This monition having been
regularly served, and the master not showing any cause,
it remains only to order the attachment to issue {b).

Maguire, for the promoter.
Gairdner, for the master.

Delta.

li!

(a) 1 Rob. Ad. R. p. 3?'
(h) When a vessel under arrest
for bail to the amount of a part
owner's interest, and after com-
mission to take bail, at the
instance of the master — the other
part owner — had issued, was re-
moved by the master and others,

to Jersey, the High Court of
Admiralty decreed an attachment
against the master and mate for
their contempt (and they were
imprisoned), and a monition
against others to show cause.
—The Petrel, 3 Haggard, 299.

!■ I

ii.. US

208

ROMULOH.

CASES IN THE VICE -ADMIRALTY COURT

Momlay, Q4th September, 1838.

ROMULUS— Callender.

The Court of Vice- Admiralty has no jurisdiction in a claim of pro-
perty to an anchor, &c., found in the river St. Lawrence, in the
district of Quebec.

Judgment. — Hon. Henry Black.

This is a motion for a warrant to issue out of this
Court for an anchor and chain cable, in the possession of
one Michel Levesque, and which the parties making the
motion, claim as belonging to them. This claim, as
stated in the affidavits filed with the motion, proceeds
upon the ground that on or about the 13th instant, at a
place called the Traverse, about sixty miles below Quebec,
in the river St. Lawrence, the anchor and cable in ques-
tion parted from the ship or vessel called the Romulus,
the master having previously to slipping the same caused
a buoy to be attached thereto ; that on the arrival of the
vessel at Quebec, the master dispatched a schooner for
the purpose of bringing up the anchor and cable ; that in
the intermediate time the above Michel Levesque, against
whom the process is prayed for, had picked up the anchor
and cable, brought the same to Quebec, and was now in
possession thereof : and that upon the parties who make
the present application, tendering him ten pounds for his
expenses, and demanding restitution- of the anchor and
cable, he had refused to deliver them up.

In this case, then, the controversy between the parties
relates to the property or possession of a chattel, which
the parties making the motion allege belonged to them,
and had been unlawfully taken possession of by the party

FOR LOWER CANADA.

against whom it is made, within the body of the dis-
trict («). The remedy must be at Common Law: this
Court lias no jurisdiction over it {b). Motion rejected.

Gairdner, for the owners of the Romulus.

209

Romulus,

(a) Hamilton v. Fraser, George
Okill Stuart's Lower Canada,
Hep. p. 21, 36, et seq.

(b) See Barnes's case, 2 Roll.
Rep. 157, cited in 1 East's Rep.
308. On a return to a habeas

corpus, it appeared that Barnes
was imprisoned by the Court of
Admiralty until he should pay
40/. or restore an anchor he had
taken.

310

CASES IN THE VICE-ADMIRALTY COURT

Monday, 6th November, 1838.

Aid.

■:i: !

AID, — NUTHALL.

Amendment in the warrant of attachment not allowed for an
alleged error not apparent in the acts and proceedings in the suit.

Per Curiam.

In this case an affidavit is made by the promoter
setting forth a claim of wages against the brig Aid, Wil-
liam Nuthall master, for services performed on board
that ship as a seaman, and a warrant of attachment ac-
cordingly issues for attaching her. The marshal returns
that he has attached, in virtue of that warrant, a certain
ship or vessel called the Eight, William Nuthall master,
pointed out to him as the ship or vessel mentioned in the
warrant, and therein designated by the name of the Aid.
This warrant having issued on the 27th of the last
month, having been executed on the 31st, and returned
on the 3nd of the present month, a motion is made by
Maguire for the promoter to amend the same by substi-
tuting therein the name Eight for the name Aid.

Where there is an error apparent on the record and
proceedings the Court may amend it on motion of the
party. The error to be amended must manifestly appear
to be an error by the proceedings themselves, and other
things done in the cause (a). Where this can be shown,
great facilities are allowed in rectifying errors ; but as
well in the civil law courts as in the common law courts,
there must, in cases like the present, be something in
the record to amend by (b). In the allegation given by

(o) Consett's Practice of the
Eccles. Courts, Part iii., s. 3,
p. 81 ; Oughton's Ordo Jud. Tit.

59, s. 5.

(6) Ibid. ; and Stevenson v.
Danvers, 2 B. & P. 109.

FOR LOWER CANADA.

Oiighton for such amendment, reference is specially made
to the process and proceedings in the cause showing the
error. The concluding words in the allegation are — prout
ex processu, ct ceteris actis jmlicinUhm, in hdc causa, hahitis,
ad qace me refero, liquet et apparel {c). And Gierke, in
treating of amendments, lays down the same rule. In
this ease there is nothing to justify the substitution of
the name Eight in the place of the name Aid in the war-
rant. The surmise by the party to the officer referred to
in his return is of itself no evidence of authority, and is
besides directly contrary to the affidavit upon which the
writ issued; for, the name of the ship in the warrant
corresponds with the name in the affidavit. The party,
therefore, can take nothing by his motion. The case of
the Thomas Gelston {d) has been cited at the bar in sup-
port of the present motion. But in the amendment
ordered by the Court in that case, the Court had the
admission of the party defendant in the cause that his
name was Eobert, and that he had been impleaded by the
name of John ; and, not having appeared under protest,
he could not avail himself of this irregularity for the
dismissal of the action. Upon examination of the record
in that case, it will be found that the amendment ordered
by the Court was confined to the giving of conformity to
the whole proceedings, by substituting in the place of
John and of Robert, the words, " Robert impleaded by
the name of John." No practical inconvenience could
arise from the allowance of amendments within the limits
stated by Oughton and by Clerke ; but if the liberty of
amendment were carried to the extent here asked for, it
would be competent to an individual upon an affidavit of
debt against one ship, and a warrant sued out against
that ship, to attach any ship he thought proper, and by
amending the warrant, upon his mere surmise made to

{c) Ordo Judiciorum, Tit. 59, s. 5. {d) MSS., 12th July, 1837.

p 2

Aid.

912

Ati).

JOSBPHA.

CASES IN THE VldE-APMIRAIiTY COURT

the officer, to render the attachment efficacious against
such other ship without any affidavit (e), or any warrant
against her ; a proceeding that it is impossible this Court
could lend its aid to.

{e) See Rules and Regulations of the Vice- Admiralty Courts, § 7.

Thursdmj, \Mh Norcmher, 1R38.

JOSEPHA— McIntyre.

Suppletory oath ordered in a suit for subtraction of wages.

Per Curiam. ,

In this case the evidence of the period of service as
well as of the particular articles of clothing in the pro"
moter's chests, is not sufficiently precise, and the master
of the ship has sailed from this port since the attachment
of the ship, without producing or leaving the ship's
articles. I shall, under these circumstances, order the
suppletory oath to be administered to the promoters {a).

Magnire, for the promoter.
Andcrmn, coiitra.

(rt) Bro. Civ, «& Ad. Law, 385 ;
Heineecius in Pandectas, Part iii.,
s. 28 ; Am. Vinnius, Select. .Tur.

Quuist. Lib. 1, cap. 43, p. 112;
Huber ad Pandectas, Lib. 12,
Tit. 2, 8. 12.

FOn LOWKU CANADA.

313

Tuesday, HOth November, 1838.

LADY AYLMER— Nadeau.

Gollisiou between a steam-boat and a bateau, both exclusively Ladv Aylmki
employed in the harbour of Quebec, not cognisable by this Court.

Judgment. — Hon. Henry Black.

This is a suit brought against the steam-buat Lady
Aylmer, for running foul of a bateau in the harbour of
Quebec, wherein the promoter seeks to recover the
damages arising from the alleged collision. The owners
of the steamboat have appeared under protest, and
assigned as reasons for their protest, " that the place
where the collision complained of happened, was with-
in the harbour, county, and district of Quebec, and
between a bateau, the use of which was limited to the
harbour of Quebec, and not used for sea navigation, and
a steamboat ; and that the steamboat was then used as
a tow and ferry-boat, also in the harbour of Quebec ; and
that such collision not having taken place on the high
seas and between ships or vessels navigating or intended
to be used in the navigation of the high seas, this Court
has no jurisdiction over the matter." The protest is
supported by a-lidavits uncontradicted by the promoter
which establish the fact therein set forth.

It cannot be pretended that the jurisdiction which the
Court is called upon to exercise in this case is founded
upon the locality of the act complained of, inasmuch as
that act was committed within the district of Quebec,
indeed in the harbour of Quebec {a). If then the Court

(a) The Friends, 24th June, 1837, MSS.

214

CASES IN THE VICE -ADMIRALTY COURT

Lady Ayljikr. have jurisdiction, that jurisdiction must be founded upon
the maritime nature of the subject-matter of the suit.

Collision between ships is a matter of a maritime nature,
but notwithstanding its being of such a nature, the High
Court of Admiralty of England has not entertained juris-
diction in cases where the collision took place in ports
or harbours within the body of a county (i). The Admi-
ralty was ousted of its jurisdiction merely because of the
locality where the act was done, notwithstanding the
maritime character of that act. The act here complained
of does not seem to me to be of a maritime character.
In no respect could the bateau, which is alleged to have
suffered from the collision, be considered as subject to
the jurisdiction of this Court. In certain cases of colli-
sion the statute of the Imperial Parliament, 2 Wm. 4,
c. 51, has conferred jurisdiction on the Vice- Admiralty
Courts in the possessions abroad, or confirmed them
therein notwithstanding the locality of the act complained
of. But there is nothing in the statute to give to this
Court jurisdiction in cases of collision, when, before
the passing of that statute, this Court would not by
reason of the subject of the collision have had jurisdic-
tion. By the maritime law I apprehend that an action
did not lie in the Admiralty in cases of collision in a
harbovir within the body of the county, between a ship or
vessel and a boat or bateau of the description and used
for the purposes for which this bateau was employed :
and there is nothing in the statute to extend the jurisdic-
tion of this Court to the subject-matter of this suit; for,
the statute is confined in its operation to the case of
" damage to a ship by collision." It is to be observed
also, that without the statute it would probably be found
that this Court would have no jurisdiction in cases of

(b) The Public Opinion, 2 Vict. c. 65, s. 6, passed on 7th
Hagg. p. 398. But see 3 & -1 August, 1840.

FOB LOWER CANADA.

215

collision in the harbour of Quebec (c) ; and as the Court Lapy Avi.mkr.
owes its jurisdiction to the statute, it could not be ex- '
tended beyond the case of collision between ships, even
though the collision in question in this cause, were of a
maritime nature, which I have already said I think it is
not (d). I must therefore pronounce for the protest, and
dismiss the suit.

Maguire, in support of the protest.
Ahern, contra.

'fi\i

((■) George Okill Stuart's,
Lower Canada, Rep. p. 163, in
note.

(d) See case of Raft of Timber,
2 W. Rob. 251.

21fi

CASES IN THE VICE-ADMlllAl/rV (X)UI{T

i: i

Captain Ross.

Timday, 20th November, 1838. _ ^ ,

CAPTAIN ROSS— Morton.

Seaman going into hospital for a small hurt, not received in the
performance of his duty, not entitled to wages after leaving the
ship.

Judgment. — Hon. Henry Black.

This is a suit brought for subtraction of wages under
the following circumstances. The promoter shipped as
steward on board the barque Captain Ross, Digby
Berkeley Morton master, on the 27th of April last, on a
voyage from Liverpool to Montreal, or any other ports in
British North America, and back to the port of Liverpool,
or any other port or ports in Great Britain or Ireland, at
the rate of 'Hi. 15s. sterling, per month, and received one
month's pay advance. The promoter served on board the
ship from the time of his shipping down to some days
after the arrival of the ship at Montreal, in the early part
of June last. He then complained of having a soro
small toe, and wished to go into hospital ; upon which the
master sent for a surgeon, who after examining the toe
was of opinion that amputation was the most eflfectual
means of relief ; and the next day was appointed for the
operation. The promoter, however, swerving, the opera-
tion was not performed, and he left the ship — without
notice to the master or his consent — and went into the
General Hospital at Montreal, where he appears to have
remained from the 8th of June to the 5th of July, during
which time his toe was taken off. In the meantime the
vessel sailed on her return voyage, and the promoter
afterwards came to Quebec, where he has since remained ;
and on the return of the ship to this port, in the month

FOU LOWEU CANADA.

217

i M

of October last, attached her for his wages. It appears Captain Ross.
that he had had his toe frostbitten about two years before
this, on board of some otlier vessel, and it was to this
cause he attributed his having this sore toe.

By the law of England and of the other maritime
countries of Europe and America, the whole wages are
given to the seaman, even when he has been unable to
render his service, if his inability has proceeded from any
hurt received in the performance of his duty or from
natural sickness happening to him in the course of the
voyage (a). But even in this case the seaman is not
justified in leaving the ship and going into hospital,
unless the sickness or hurt be sufficiently serious to
justify such course. In this case the hurt complained of
was not received in the performance of the promoter's duty,
but anterior to hh entering into the service of the ship ;
and did not, as appears from the evidence in the cause,
require his leaving the ship. It was his duty at least to
have given notice to the master before going to hospital.
It was his business also — if tlie case had been such as to
justify his remaining here during the period he was in
hospital, and proceeding against the ship as upon a con-
tinuing engagement down to the time of his return to the
port of shipment — to proceed to that port in another
ship, upon being in a condition to do so. In which case
the wages which he would have earned on the return
voyage would go in deduction of his claim against the
barque Captain Ross ; and it appears here that he might
have earned on such return from 4.1. to ol. per month,
being nearly double the rate of wages which he was to

;ili

(a) Abbott on Shipping (Mr.
Justice Story 'a edition of 1829),
p. 442 ; Chandler v. Grieves, 2
Hen. Black. 606, note (a) ; 2
Boulay Paty, 232 ; Poth. Loiiage
des Matelots, No. 189; Orde.

1681, Liv. iii. Tit. 4, art. 11; 1
Viilin, 721 ; Sir James Qraliara's
Act, 5 & 6 Will. 4, c. 19, s.
18; The Atlantic, 18th Jidy,
1837, ante.

218

CASKS IN THK VICK-ADMIUALTY COUK.''

Captain Ross, receive from the Captain II088. I shall therefore decree
wages only for tlie period of his actnal service, that is,
from the anth of April to the 8th of June, deducting the
advance of one month's wages.

Cannon, for the promoter.
Okill Stuart, contra.

i !

FOR LOWEIl CANADA.

319

Timchitj, \r,th April, 18'i\).

SOPHIA— Wkatiikuall.

Where a voyage is broken up by consent, and the seamen con-
tinue under new articles on another voyage, thoy cannot claim
wages under the lirst articles subsequent to the breaking up of the
voyage.

Defendant's bail is an incompetent witness.

Receipt in full is not taken as conclusive in this Court.

JuDGMKNT. — Hon. Ilciiry Black.

The brig Sophia, whereof the defendant was master,
sailed from Liverpool in the month of September last, on
a voyage to Quebec, or any other port or ports in British
America, at the option of the master, and back to the port
of Liverpool or any other port of discharge in the United
Kingdom ; and the promoter, a carpenter, with the rest
of the crew, signed articles accordingly. The vessel
having arrived at Quebec in the month of October of the
same year, and the owner being desii-ous of sending her
to Shediac in the Gulf of St. Lawrence, to convey troops
thence to Quebec, and conceiving that he was not entitled,
under the articles, to take the vessel to this port, called
the crew together and gave them the option of being dis-
charged from the articles and returning to England, or
of going to Shediac under the articles. The promoter
and two others of the crew accepted the latter option,
seven of the original crew adopted the former. The
voyage in the second articles is " from the port of Quebec
to Shediac or any port in the Gulf St. Lawrence and back
to Quebec, employed in the transport service." This
voyage was accordingly performed by the promoter, and
on the return of the vessel to Quebec, she was dismantled
and laid up for the winter, the promoter working at the

Sul'IllA.

' M

'*\S^

220 CASES IN XHK VICE -ADMIRALTY COUVT

Sophia. dismantling of her, and upon this being completed he
"~ received from the owner wages and boarding down to this
period. But the claims of the promoter goes further, and
he insists that he is entitled to wages and boarding up to
the 7th of May next, amounting to 37/. lOs. after giving
credit to the defendant for loZ. TJiis claim proceeds
upon the principle that the promoter, notwithstanding
the change in the voyage, continued to be in the service
of the ship under the original hiring. I cannot consider
that he was so. The master notifies the seamen that the
original voyage was broken up. The whole crew, and
the promoter with the rest, acquiesce in this. Un-
doubtedly they might have claimed to return to Liverpool,
or some other port in the United Kingdom, and wages
up to the time of their arrival as stipulated in the articles,
allowing in deduction what they might earn. But as at
that season of the year seamen could have no difficulty in
obtaining a higher rate of wages than the rate oi wages
stipulated by the articles at Liverpool, this claim was
fully answered by offering them their discharge, and if it
were not, it was for tliem then to have preferred their
claim against the ship. The conditions proposed by the
master, upon breaking up the original voyage appear
reasonable, and were consented to by the crew («). The
first voyage being thus determined at Quebec by consent,
the second was determined at the same port by the
articles, after which period the promoter could have no
claim as for wages. I have not adverted to the receipt
in full of all demands signed by the promoter upon
receiving wages up to the time of the laying up of the
ship in the port of Quebec ; because the only evidence
offered of its execution is derived from the testimony of
the bail of the defendant, who is of course an incompetent
witness; and at all events a receipt in full is open to

(a) The Elizabeth, 1 Dudsou, 403.

FOR LOWER CANADA. '

explanation, and upon satisfactory evidence may be re-
strained in its operation. The fact of the payment of the
money is established by other evidence, and by the
admission of the promoter himself; and, taking the
voyage to have determined under the second articles at
Quebec— which I have already said I think it must be—
the promoter has received all that he is entitled to under
the articles. But the promoter seems to conceive himself
entitled to board and wages subsequently to the determi-
nation of the voyage, on the ground that upon entering
on the new engagement, the owner promised to find him
employment during winter. There does not appear to
me to be any evidence that the master or owner made
any such agreement ; and if such an agreement had been
made, it would have been an agreement varying the
contract of wages in the ship's articles of which parol
evidence could not be introduced. Such a collateral
engagement, too, if entered into and for a legal considera-
tion, could not entitle the party to wages, but only to
damages to be recovered in a court of common law for
the breach of this convention. In this view of the sub-
ject, I decree that the promoter's suit be dismissed.

Mfigiiire, for promoter.

G. Ohill Stmn-t, for defendant.

221

.Sophia.

fill

i i'

1 iJ
' 'I

222

I i:l

Mart
Cahpkell.

CASES IN THE VICE -ADMIRALTY COUUT

Saturda;/, 2(ifh December, 1840.

MAEY CAMPBELL— Simons.

Vessels are required, of a dark night, to show their position by a
fixed light while at anchor in the harbour of Quebec ; and the want
of such light will amount to negligence, so as to bar a claim for
an injury received from other vessels running foul of them.

Master may avail himself of the wind and tide, and sail into port
by night as well as by day.

By-Laws of Trinity House not abrogated by desuetude or non-
user.

Judgment. — Hon. Henry Black.

This is a claim for damages on the part of the ship
Jamaica against the ship Mary Campbell, incurred in the
night of the first of October last, in the port of Quebec,
by running against the Jamaica through negligence or
want of skill of the persons on board of the Mary Camp-
bell. It is in proof that the collision took place between
nine and ten o'clock at night, and that the night was
dark, and at that time there was no moon above the
horizon, and the wind was fresh, and the tide strong,
running up the river ; and the Jamaica was at anchor
in the stream, and there was no light shown on board
the Jamaica. It further appears that by the by-laws and
regulations of the Trinity House, all ships or vessels, in
dark nights, at anchor in the stream opposite the town
must show a light on the bowsprit end on the flood tide,
and at the mizzen peak or ensign staff on the ebb tide.
It is also in proof by the testimony of the harbour mas-
ter and a member of the Trinity House of Quebec, nnd
of the superintendent of pilots, and also a member of
the Trinity House, that every night is considered to be a
dark night when the moon is not up ; that an extract
from the by-laws and regulations of the Trinity House is

FOR LOWKR OANAPA.

given to every captain of a ship upon his> arrival in the
harbour of Quebec, and these witnesses have no doubt
that the master of the Jamaica received one.

The above facts appear without the testimony of the
master of the Jamaica or of the pilot of the Mary Cam])-
bell, and I am of opinion that the want of a light on
board of the ship Jamaica, at the time of the colli-
sion, is fatal to the claim of the libellants for damages.
The power of the Trinity House to make the regulation
is not questioned, and the non-compliance with the by-
law or regulation in respect to the light, by the master
of the Jamaica, at the time and under the circumstances,
was a negligence that creates a bar to the claim for
damages. I consider the objection to be insurmountable,
and that this single objection renders all the questions
that might arise in the case of no consequence.

The by-law of the Trinity House I assume to be
valid and binding, and founded on competent authority ;
and the suggestion that the Aon-user has destroyed the
force and obligation of the rule is wholly groundless.
There is no such principle in the English law that a
a statute authority or direction can be repealed or lose
its efficacy by non-user (a). The mode [of abrogating or
repealing statute law by desuetude or non-user is not
only unknown to the English law, but would be perni-
cious and dangerous. The Court of King's Bench in
White V. Boot (b) promptly discarded such a doctrine.
Assuming then the existence, validity, and operation of
the Trinity House regulation of the vessels in the har-
bour of Quebec, the master of the Jamaica was bound to
take notice of it. The evidence of disinterested wit-
nesses of credit and character goes to show that the
master of the Jamaica was duly informed of the regula-
tion, and was served with a copy of it. How then can

32n

Mary
Campbell.

(rt) 2 Dwarris, 672.

(6) 2 T. R. 274.

231

Mauy
Campbell.

i(i

(;ases in the vice -admiralty court

the libellants be permitted to talk of desuetude, or to
prefer a claim of damages to their ship by a collision in
a dark night, from a ship coming into the harbour under
a fresh wind and tide, when they had neglected to give
the requisite token of their presence and position in the
harbour ?

If the regulation of the Trinity House is to be put out
of view, as if it had no legal existence (although I do
not well see how it can be done), then the case is to be
governed by the particular circumstances attending it,
and the legality and weight of the testimony.

I entertain no doubt that the master of the Jamaica,
and the pilot of the Mary Campbell, were interested wit-
nesses, inasmuch as the case resolves itself into a ques-
tion of negligence or want of due skill and care in those
persons who at the precise time had the control and
direction of the vessels ; and the master and the pilot are
equally interested in clearing themselves of fault, and
throwing it upon the otlier party (c). But this point
seems not to be important in any view, for all ma-
terial facts are in testimony by other witnesses; and
the case is not one in which their testimony may be
admitted from necessity, although they may be interested
witnesses.

The weight of evidence is decidedly in favour of the
fact that the night was quite dark at the time of the col-
lision, and the darkness of the night is a matter of fact
to be ascertained by parol proof before a Jury, or a Court
of Equity or Admiralty Jurisdiction, which can deal with
matters of fact. The superintendent of pilots (Young)
and the chief and second mate, and a carpenter on boai'd
the Mary Campbell, all prove the night to have been dark.
If so, I think that the Jamaica, independent of any Trinity
regulation, ought to have shown her position by a fixed

(t) See the caso of the Lord John Russell, 2dth August, 1838.

FOB LOWER CANADA.

225

light, in such a port as Quebec, and lying in the stream,
with a fresh wind and tide up the river (d).

I do not perceive anj'thing like negligence or want of
skill on the part of the Mary Campbell, for she had a
right to avail herself of the wind and tide, and sail into
the port by night as well as by day. She appears to me
to have been free from blame, and as I have already
observed, the want of a light raises the inference of negli-
gence on the part of the Jamaica, and that destroys the
equity of the claim to any damages in the case of such an
accident, arising from the darkness of the night; and
when we recur again to the regulation of the Trinity
House, the disregard of that regulation of law defeats the
title to damages entirely {<;).

M,\HY

Camphell.

(d) In reference to the rule
existing in some ports, requiring
lights to be hung out conspicu-
ously in dark nights, it was said
in Carsley v. White, 21 Pick.
154 (Massachusetts Reports), thaf.
there was no general and abso-
lute usage on the subject, and
that the omission of the liglit
might or might not be a fatal
negligence, according to the cir-
cumstances. But the Ch. J. of
Pennsylvania in Simpson v. Hand,
6 Whart, 324, more justly consi-
dered that the hoisting of a light
in a river or harbour at night,
amid an active commerce, was a
precaution imperiously demanded
by prudence, and he did not sec
how it could be considered other-
wise than as negligence per se.

(c) •' That all ships or vessels,
in dark nights, at anchor in the
stream opposite the town, shall
show a light at the bowsprit end
with the tide of flood, and at the
ensign staff or mizzen peak with
the tide of ebb: and in default

thereof shall incur a penalty not
less than forty shillings, and not
exceeding five pounds, to bo paid
by the master of such ship or
vessel for every such offence." —
By-laws, Ilules, and Orders of
the Trinity House, Uuebec, of
28th June, 1805. Sec. 2, art. 4.

This by-law has since been re-
pealed, and the following substi-
tuted for it :

" That the masters or persons
in charge of ships or vessels at
anchor in any part of the lliver
St. Lawrence, between Green
Island and the western limits of
the port of Quebec, shall, during
the night, cause to be placed on
board of their respective vessels,
a distinct light in the fore-rigging,
twenty feet above the deck, under
a penalty, for every neglect of
this regulation, not exceeding
ten pounds currency." — By-laws,
Orders, Rules, and Regulations
of the Trinity House of Quebec,
of 12th April, 1850. Sec. 35.

: ■ r

oop,

CASES TN TIIK VICK-AimiRAITY rOUUT

Leonidas.

f 1

Thnmday, ISf/i Febninn/, 1841.

LEONIDAS— Arnol-u.

In a cause of collision, where the loss was cliarged to be owing to
negligence, malice, or want of skill ; the Court, with the assistance
of a captain in the Royal Navy, being of opinion that the damage
was occasioned by accident, chiefly imputable to the imprudence of
the injured vessel, and not to the misconduct of the other vessel, dis-
missed the owners of the latter vessel.

Kule ' '■ ''^ation when a ship is in stays, or in the act of going
about.

JriDGMENT. — H'on. Henry Black.

This tiuit is bronr^ht by the owners of the ship Mary
Ann Hutton, to leoover *he amount of certain damages
sustained by that vessel from her being run foul of by
the ship Leonidas, on the morning of the 1st of Septem-
ber last, off Point des Monts, in the river St. Lawrence,
through the alleged negligence, malice, or want of skill
of the persons on board of the Leonidas. The libel
states that at one in the morning of the 1st of September,
the Mary Ann Hutton was on the starboard tack(rt),
standing in towards the land at Point des Monts ; that
at this time or shortly after, the main sail of the ship
was hauled up to enable her to stay with the watch then
on deck ; that while she was in stays, and was paying off
without headway on her, the watch on deck saw the
Leonidas on the lea beam of the Mary Ann Hutton,
about three or four hundred yards from her and bearing
down upon her ; that the helm of the Mary Ann Hutton
was then a-starboard, and that her mate hailed the Leo-
nidas to starboard her hehn and keep away, and that he
was answered from the Leonidas, which vessel, however,

(a) This could not be, as Captain Bayfield remarks.

lUii

FOR LOWER CANADA.

continued her course, the wind being then west north
west, and blowing a fine breeze, and the Loonidas going
seven to eight knots an liour; that the Leonidas was
repeatedly hailed from the INIary Ann Hutton, to atar-
hoard her helm {h) and keep away, but she did not, but on
the contrary kept her luif, and struck the Mary Ann
Hutton on the lee quarter, doing the damage complained
of; that the Mary Ann Hutton, before and at the time of
the collision, had a light conspicuously placed on her
fore-stay, and that when she hailed the Leonidas, the
master caused a lamp to be held up so that the people
of the Leonidas must have seen it. On the part of the
owners of the Leonidas it is alleged, in their responsive
plea, that she was off Point dcs Monts, at one in the
morning of the 1st of September last, the wind blowing
then fresh from the west south west, and not from the
west north west as alleged in the libel, and that tlie
night was dark and hazy in shore towards the ni rth of
Point des Monts ; that the Leonidas was then, and had
been for an hour, standing on the starboard tack, out
from the shore with nearly all sail set, and going about
seven and a half knots an hour ; that 'about two minutes
or less before the collision, one of the watch of the Leo-
nidas saw the Mary Ann Hutton on the lee bow of the
Leonidas, and about one hundred or one hundred and
fifty yards from her, at a great distance from the sliore,
and standing towards it, on the larboard tack, and not on
the starboard tack, or in stays as alleged in the libel ; that
about that time the watch of the Leonidas heard a voice
from the Mary Ann Hutton, calling out " put your helm
up," and that the helm of the Leonidas was put up
accordingly ; that the Leonidas had a light on her fore-
stay, but that the Mary Ann Hutton had not, though it
is falsely alleged in the libel that she had ; that at the

(A) That was to " pat it up " as the Leonidas people say also,
that they were told to do.

«^ 8

227

S-

ii , J

Leonidas,

228

Lkonidas.

OASES IN THE V1CE-APMIRAI,TY COURT

time of the collision the INIary Ann Hutton had not her
main sail hauled up, that she had her larboard tacks on
board, and was not in stays, but that her main sail was
set, all her yards the same way, that her sails were full
and that she had way on her larboard tack ; that the
Leonidas being on the starboard, and the Mary Ann
Hutton on the larboard tack, the latter was bound to
give way ; and that the collision did not occur by the
inattention, neglect, nor want of skill on the part of
those on board of the Leonidas, but by the negligence
or want of skill of those on board the Mary Ann
Hutton.

There are some contradictory statements made by the
witnesses examined in the case, as there are and indeed
must almost necessarily be in cases of this kind, and as to
circumstances occurring in the darkness of night, and
amidst inevitable confusion, and with regard to which the
feelings of the witnesses on each side are strongly excited
in favour of the views most favourable to their own
vessel ; but by a careful examination of the whole
evidence, the facts appear to have been as follows : —

At the time mentioned in the libel and answer, the two
vessels were off Point des Monts, bound upwai'ds, with
the wind rather fresh from the westward or down the
river (the exact point from which it blew is of no conse-
sequence, both beating up the river with a contrary wind).
The Leonidas had been for some time standing off the
shore on the starboard tack, and was going from seven to
eight knots an hour : — the Mary Ann Hutton had been
standing towards the shore on the larboard tack, but at
the time of the collision she was in stays, for the purpose
of getting on the starboard tack and standing off the
shore, or at any rate had not completed the evolution
long enough to have way upon her, and to be under
command. The night was dark, the distance from the
shore was such that it was not necessary to the Mary

FOR LOWER CANADA.

Ann Hutton to go about to avoid any local danger. No
particular signal was made by the Mary Ann Hutton to
show that she was in stays, or about to go into stays,
until the Leonidas was within a few hundred yards of
the Mary Ann Hutton, and could be and was hailed from
her ; and in fact neither of the vessels seems to have seen
the other until they were within this distance, which, at
the rate the Leonidas was going, she would sail in two or
three minutes. When the Leonidas was hailed from the
Mary Ann Hutton to put her helm up, she did so, and
though this manoeuvre does not seem to have been the
best that could have been adopted, yet it was adopted by
the Leonidas at the request of the people of the other
vessel, and under circumstances which made it difficult to
say what ought to be done. There was not sufficient
time for the Leonidas to pass astern of the Mary Ann
Hutton, and she struck that vessel on the quarter, doing
the damage complained of.

The general rule of navigation is, when a ship is in
stays or in the act of going about, she becomes for the
time unmanageable, and in this case it is the duty of any
ship that is near her to give her sufficient room; but
when a ship goes about very near to another and without
giving any preparatory indication from which that other
can, under the circumstances, be warned in time to make
the necessary preparations for giving room, the damage
consequent upon want of sufficient room may arise from
the fault of those in charge of the ship going about at an
improper time or place. Or, in the case of darkness, fog
or other circumstances rendering it impossible for the
ships to see each other, so distinctly as to watch each
other's evolutions, the fault may be with neither. The
law will support a claim for indemnification if it is shown
that the vessel charged is the wrong doer ; but not if the
damages arise from the fault of the vessel injured, or are
the result of a misfortune common to both vessels, with-

289

Leonidas.

2'W

CASES IN THE VICE-ADMIUAI,TY I'Ol'UI'

■ fj!'

JLkonii.as, out fault on eitlicr side. The real difficulty is not in
deti'nnining the rule, but in ascertaining the facts to
which it is to be applied. The circumstances of con-
fusion, darkness and danger, luider which such disasters
commonly happen, and the strong feelings of the wit-
nesses, all tend to place cases of collision amcnig the
most difficult which can be brought before a judicial
tribunal. It is a great relief therefore to the Court to be
assisted by a naval gentleman, whose professional expe-
rience and skill enable him to draw just conclusions from
facts and evidence, which unprofessional persons could
but imperfectly appreciate : and having proposed to
Captain Bayfield, R. N. (the assessor in this cause) the
following questions : —

1. What were the respective positions, of the two
vessels a short time before the collision ?

2. What was the relative position of the Mary Ann
Hutton when she went into stays ?

3. Was the Maiy Ann Hutton justified in going into
stays in her relative position with regard to the
Leonidas ?

4. If the Mary Ann Hutton could see the Leonidas,
and yet gave no intimation, visible and intelligible to that
vessel, of her intention of going about, was the collision
consequent upon her neglect to give such intimation ?

6. Did the Leonidas do right in putting her helm up,
when the danger of collision became apparent ?

f). Did the collision occur through the inattention, want
of skill, or malice of the persons on board the Leonidas ?

The Court has received from Captain Bayfield his
answers in writing, prefaced by some remarks explanatory
of the reasoning upon which he has come to the con-
clusions he enounces, and in the following terms : —

" It is necessary, before giving an opinion upon the
case of collision between the Mary Ann Hutton and the

roll LOWKU CANADA.

SSI

Leonidas, which has been Bubmitted to me, that I should
offer some few brief remarks, explanatory of the nautical
parts of the subject, and also of the grounds upon which
my opinion has been formed.

" In the first place, I am compelled to notice the con-
tradictory statements of the libel, in which it is affirmed
that the Mary Ann I 'tton was on her starboard tacks,
standing for the land of Point des Monts : the latter part of
the statement being impossible if the former be true, and
the wind, as alleged, from the westward. So also is it
impossible that the Leonidas could have been bearing
down upon the Mary Ann Hutton and on her lee beam
at the same time. These opposing statements render it
impossible to ascertain what tack the Mary Ann Hutton
was on at the time of the collision. Neither does the
statement that the Leonidas struck her on the lee quarter
afford any explanation, since either quarter might have
been the lee.

" I shall next consider the evidence of the promoter's
witnesses. They concur in stating that at one o'clock on
the morning of the first of September, 1840, the wind
then being moderately fresh and from the westward, the
Mary Ann Hutton was in stays from the starboard to the
larboard tack, but had not quite completed the evolution.
She had come round with her head to the northward, but
had not finished the trimming of her sails, or gathered
way through the water so as to be under command of her
helm, when the Leonidas came up on the starboard tack,
and the collision took place.

" Now, it clearly appears from this evidence, that the
Mary Ann Hutton must have hove in stays right across
the course, or dire(!tly in the way of the Leonidas, and at
an imprudently short distance ahead of her: for, that
distance could have been no more than that which the
Leonidas sailed in the few minutes which elapsed from
the commencement of the evolution of staying on board

Leonidas.

283

Leonipas.

CASKS IN TIIF, VICK-AI)MIItAT,TY COtlR'i

tlie Mary Ann Ilntton until the collision, which took
place bol'ore its completion.

" It is customary at scft, especially at night, when a
vessel is similarly situated with respect to another, ns the
Mary Ann Hiitton tlius appears to have been in relation
to the Leonidas, that is, at so short a distance ahead or
on the lee bow, that she could not stay without danger to
both vessels to make some signal, either by showing a
light over her stern or otherwise, — and waiting till an
answering light had shown that the people on board the
other vessel were on the alert and aware of their intention.
Therefore, if the Leonidas could have been seen from the
Mary Ann Hutton, and the persons in cliarge of the latter
vessel failed to give those of the Leonidas any such inti-
mation of their intention to stay, then in that case, they of
the ;Mary Ann Hutton became in great measure answer-
able for the collision and its consequences, although I
tliink not so entirely so, as to free the people of the
Leonidas from all blame, for they ought to have vigilantly
watched the motions of the Mary Ann Hutton, under
such circumstances, it being part of a seaman's duty to
be prepared for any accident, imprudence, or want of
judgment on board other vessels near him.

" But, it does not clearly appear in evidence that the
Leonidas was seen from the Mary Ann Hutton before she
commenced the evolution of staying, for although the
mate deposes that the night was rather clear, and that he
thinks he could see two miles, yet he says that it was
while his vessel was in stays that he and several others of
the crew discovered the Leonidas. Again, in his cross-
examination, he says, that he saw the Leonidas ten
minutes before the collision, which, at the rate she is
proved by those on board of her to have been sailing at
the time, indicates a distance of at least a mile, and yet
he adds that when seen by him she was distant only
about four or five hundred yards.

FOn LOWER CANADA.

" The same discrepancj', between the time stated to have
elapsed from the discovery of the Leonidus to the eoUi-
sion, and tlie distance at which she was first seen, occurs
in the evidence of all the promoter's witnesses. Those
witnesses depose, either directly or in substance, that the
night was sufficiently clear for a vessel to have been seen
at the distance of about two miles, and yet that they did
not discover the Leonidas until she was within a distance
of from two hundred to five hu'^liod yards, whence it
appears, either that the night was not so clear as they
now think it was, or that they kept no proper and suffi-
cient look-out.

" Turning now to the defendant's evidence, I find that
the witnesses on the side of the defence agree in stating,
that the night was dark, especially to the southward, or in
the direction of the Mary Ann Hutton ; that the Mary
Ann Hutton was first seen about two minutes before the
collision, that she was on the lee bow, at the distance of
about two hundred yards ; and that they lost sight of her
again in an equally short space of time after the collision.

" The master states that he did not stop to render assist-
ance, because, from the slightness of the shock to his own
vessel, he did not conceive any to be required, and because
he neither saw nor heard any indication from the Mary
Ann Hutton that she required any.

"All the witnesses for the defence declare that the Mary
Ann Hutton was not in stays, but of this I cannot consider
them to have been competent to judge, in the confusion
which they mention, and in a night so dark as they state
it to have been, for the sails of the Mary Ann Hutton may
have been as they state, all full on the larboard tack, and
yet they may not have been long enough so for the vessel
to have gathered way, so as to have become under com-
mand of her helm. I consider, therefore, that their testi-
mony on this head cannot justly be put in competition
with that of those who were on board the Mary Anne

%A^

LKONIDAfl.

Ml:

234

CASES IN THE VICE-ADMIIiALTY COURT

Leonipas. Hutton, any more than I can allow that these latter were
competent to decide whether the helm of the Leonidas
was or was not instantly put up in obedience to their call.
The evidence of the promoter and defendant respecting
the main-sail of the Mary Ann Hutton, whether it was
clewed up or at full drop, is in direct opposition, but the
fact is immaterial.

" Having thus reviewed the evidence, and fully and deli-
berately weighed all that has been adduced in support
and in defence of this action, I have come to the following
conclusions :

" 1. That it is established in evidence that a few minutes
before the collision took place, bnth vessels were standing
from the land near Point des Monts to the southward,
being both on the starboard tack with the wind fi'om the
westward, the exact point being unimportant.

" 2. That the Mary Ann Hutton hove in stays directly
in the way of the Leonidas, and so near her that there
was not time to complete the evolution of staying before
tlie collision took place.

" 3. That her staying so near to the Leonidas, and in
such a relative position in respect to her, as it appears
from the evidence she did, could only be free from the
charge of the most blamable imprudence, by the suppo-
sition of her not being able to see the Leonidas, on
account of the darkness of the night.

" 4. That if they of the Mary Ann Hutton could hr.ve
seen, or did see the Leonidas, and yet gave her no intima-
tion of their intention to heave in stays directly in her way,
they are at least as much answerable for the collision and
its consequences as the people in charge of the Leonidas.

" 5. That if the night was so dark that the vessels could
not be seen from each other, at the time when the Mary
Ann Hutton commenced the evolution of staying, and
that the Mary Ann Hutton was still in ptays, and without
headway, when the Leonidas came up, then in that case it

FOR LOWER CANADA.

wouicl appear, from the relative position of the vessels,
that the LeoniJas must have gone clear of her by luffing
to windward, which, being on the starboard tack, it was
her place to do, and which it aj)pears she was about to do
when the call from the people of the Mar}- Ann Hutton
induced her to put her helm up, an act which, although it
proved unsuccessful in avoiding the collision, can scarcely,
under the circumstances, be considered as entailing blame
upon either party. In this case, therefore, I should con-
sider the collision entirely accidental.

" 6. I am therefore of opinion, that it has not been
proved that the collision occurred ' solely through the
inattention, want of skill, or malice of the persons on
board of the Leonidas.'

" Henry W. Bayfield."

235

Leonidas.

Concurring in the views taken by Captain Bayfield, and
in the conclusions stated in his answers, I must pronounce
that the Leonidas is not liable for the consequences of the
collision, and that the owners of that vessel must conse-
quently be dismissed from this suit (o).

Gairdiicr uiid Stnarf, for the ]\Iary Ann Hutton.
Horatio S. Andenon, for the Leonidos.

(c) "Starboaud,"" Larboaed,"
"PoKT." — G. A. J., who in-
quires about the derivation of
these nautical terms, will recol-
lect that the Venetians and
Genoese were among the earliest
European navigators ; and formed
during the middle ages, and even
later, the most powerful mari-
time states. It is, therefore,
extremely probable, that the Ita-
lian language is that in which
we are to look for the origin of
most of our nautical terms of
old standing. I have long sup-

posed that the terms " star-
board," "larboard," and "port,"
had an Italian origin.

Thus we have "questo bordo,"
this side of the vessel, or the side
on which the helmsman stood ;
" fiuello bordo," that side, or the
one opposite to him ; bordo, being
" tutta quella parte del vascello,
che dai fianchi sta fuor dell'
acqua." These terms would na-
turally come to be abbreviated to
'sto bord\ 'fo bord\

Then, again, the master, when
directing the helmsman to put

236

LSONIDAS.

CASES IN THE VICE -ADMIRALTY COURT

the tiller over to the larboard
side of the vessel, or that opposite
to him, would naturally indicate
it by the word jwrtare, to carry
or push; "porta il timone,"
"port your helm," as distin-
guished from tirare, to pull.

In process of time, in order to
obviate the risk of confusion be-
tween the sounds 'sto lord', 'lo

horcP, "starboard," "larboard,"
inasmuch as porting the helm
always indicated the larboard side
of the vessel, the word port came
to express it altogether.

It is a mistake to suppose, as
Mr. Bosworth does, that the
Anglo-Saxon steorbord, is from
styran, to steer. — Notes and
Queries.

FOR LOWER CANADA.

287

Friday, 12th November, 1841.
THE MIRAMICHI— Grieve.

In a case of collision against a ship for running foul of a floating-
light vessel, the Court pronounced for damages.

In such case the presumption is gross carelessness, or want of skill,
and the burthen is cast on the ship-master and owners to repel that
presumption.

This was a claim on the part of the Trinity House of
Quebec, as the owner of the schooner Brilliant, for dam-
ages done to her by the barque Miramichi, in coming up
the river St. Lawrence.

Judgment. — Hon. Henri/ Black.

I have given the case the best examination and con-
sideration in my power, and my mind has come to the
conclusion that the owners of the barque Miramichi are
chargeable, in the character of owners, with the collision,
and are responsible for the damages sustained.

I do not perceive sufficient ground to impute fault, or
want of due care or skill, to the master or crew of the
schooner Brilliant. That vessel was strongly and safely
moored in her usual station, as a beacon or a floating-
light vessel, and every way competently equipped, and
with her lamps lighted and blazing at the time. It was
her business to remain stationary and quiet, and of all
vessels passing up or down the St. liawrence to observe
her, and to keep clear of her. She was anchored on the
south side of the channel, which at that place was one
mile wide. The barque was first seen at the distance of
a mile, coming directly towards the Light vessel, with
wind and tide in her favour, and all sails set. As she
continued her course, one of the seamen of the Brilliant

Miramichi.

238

CASKS I\ THE VICE-ADMIIIALTY COl'UT

MiRAMicTir. (Gagnon) became alarmed and rang the bell, and called
up the master and cre\.. The barque approached rapidly,
and was to the windward of the Brilliant. She appeared
to two of the crew of the Brilliant to be intending to go
to the southward of the Brilliant, but suddenly appeared
as if changing her course so as to pass to the northward
of the Brilliant ; and some of the crew of the Brilliant
called out starboard, and the word stavboai'd was repeated
from the barque. The approach was too rapid, and the
proximity too close to change the course, and the collision
took place. The master, when he came on deck and saw
the danger impending, ordered the helm to be put hard a
starboard, and he thought it was done, and that the Light-
ship sheered to the north, though not exceeding five feet.
But, on this point of sheering, he might have been mis-
taken, for Gagnon, the seaman, was the person who Avent
to put the helm a starboard, and he was endeavouring to
unlash the helm, but did not succeed before he was called
away ; and the helm was not unlashed, nor put a star-
board, nor did the Brilliant sheer at all. In this fact the
two witnesses, Gagnon and Peltier, concur.

Then, what ground was there for imputing any negli-
gence, or misconduct, or want of skill to the master or
crew of the Brilliant ? There is nothing, unless it be that
they communicated orders to the barque to put the helm
a starboard, and which was done accordingly. Had it not
been for that fatal order the witnesses on the part of the
defendants are of opinion that the barque would have
gone to the northward, and clear of the Light-vessel. It
does not appear to me from a comparison of the testi-
mony that the conclusion is well drawn. The witnesses
for the barque assume as a fact that the Brilliant sheered
across the bows of the barque, whereas those who knew
best, — the crew of the Brilliant, — declare that she did not
sheer at all ; she could not, because the helm was lashed
and consequently unmoved. Then here stands the fact

FOR LOWKR CANADA.

unshaken, that the Light-vessel remained fixed and
stationary, and the order to starboard her helm did not
produce the collision. The vessels were within two hun-
dred feet, or within one and two hundred yards of each
other when the order, starboard, was given. The collision
was too instantaneous after this order to allow it full
effect. Indeed, a witness for the defendant (James Taylc ,
says that if the barque had not put her helm a starboard
as ordered by the Brilliant, they would have run down the
Brilliant, as she sheered across the hows of the barque. Now,
she did not sheer at all, and yet, per adventure, the order
from the Brilliant saved her from being sunk. The barque
had sheered directly at or too close to the Light-vessel,
and the error was discovered too late and was fatal, and
the cry from the crew of the Brilliant was in the moment
of anxiety and extremity. The course of the barque was
not clearly defined, and it is quite uncertain whether a
collision would not have taken place if there had not been
a voice uttered or a stir made on board the Light-vessel.
Coulton, the chief mate on board of the barque, cannot
say whether the Light-ship sheered ; he only knows that
one of the vessels did sheer, and he believes, though he
cannot say with certainty, that if the barque had continued
her course, before the helm was put a starboard, and the
Light-ship had remained stationary, that she would have
passed clear of the Light-ship to the northward. Ought
the barque to have left a doubt on that point, when she
had a mile of sea room to the northward of the Light ?
So the witness (Taylor) thinhs the barque would have
passed between the Brilliant and the north shore, if the
order "starboard" had not been uttered; and another
witness (Allen) cannot say if the order to starboard the
helm had not been given, that the barque would have run
clear of the Light-ship, as it would depend upon the force
and run of the tide. The witness Scott, also believes
that in such a case the barque could have run clear, but

9^9

MlBAHIOKI.

¥\

'>' m

w . it

840

MlHAHICni.

11:

CASES IN THE VICE-ADMIIIAI.TY COUUT

cannot be positive, as he was not acquainted with the way
the current sets in. I conclude that there is no obstacle
on the part of the libellants to a claim for damages
arising from the conduct of the captain or crew of the
Brilliant.

I am of opinion that fault or blame, or want of care or
skill, or all of them are imputable to the barque, and that
the owners must answer for the damages produced by the
collision. The barque had not a regular pilot on board,
and she was within the regular pilot ground, and three
branch pilots belonging to the river navigation of the St.
Lawrence were witnesses in this case. No excuse appears,
and no reason is assigned why a licensed pilot was not
procured. It is to be presumed that such an officer would
have conducted the barque quite clear of any collision,
and he would have known the force and direction of the
strong and rapid currents of the river, and how to avoid
or control them. When a ship runs foul of a stationary
object placed as a beacon for direction and to b:^ led,
the presumption is gross carelessness or want of skiii, and
the burthen is cast on the shipmaster and owners to repel
that presumption. The stationary vessel is inert and
helpless, and the sailing ship has command of the time
and place, of the winds and the currents, and it becomes
her exclusive duty to avoid collision with the other. No
doubt, a vessel at anchor in the stream of a navigable
river, must also perform her duties. If it be in the night
she must have a light hoisted to mark her position, and
an anchor watch on deck, or she will lose her claim for
damages in a case where a vessel under full sail runs foul
of her. But in the present case the Light- vessel was in
the performance of her stationary duty, and was casting
her lights and her watchful eye to a distance around her.
The error and want of due care in the barque was in con-
tinuing to steer directly on the light of the Brilliant, and
not altering in due season her course more to the north-

FOR LOWER CANADA.

341

ward. Her fault was in approaching so near to the Light- MiBAMioni.
ship that the force of the current and the rapid motion of ' — ''
the ship, brought her into a difficulty from which she
could not extricate herself. Here was want of skill, and
care, and knowledge of the current and of its rapidity. It
was a fault in the barque to place herself in such a posi-
tion. She steered so near to, if not directly at the light,
at her own peril, and she must abide the consequence.
The case of the Neptune the Second (a) 'shows how ships
moored are protected against the intrusion of ships under
sail, and the case of the Mary Campbell (6) shows on the
other hand how the want of due attention in the stationary
ship at anchor deprives her of remedy for collision.

In the present case the object of the barque would
seem to be to steer as close as possible to the Light-vessel
and not touch her. It was a rash, unskilful, and hazar-
dous experiment ; she had no business to implicate her-
self in the neighbourhood of a floating light. There was
" ample room and verge enough " to the northward, and I
think that upon settled principles of admiralty law and of
justice she ought to indemnify the libellants for the injury
they have sustained, and I pronounce accordingly.

E. L. Montizambert, for the Trinity House.

R. H. Gairdner and A. Stuart, for the Miramichi.

(a) 1 Dodson's Ad. Rep. 467.

(6) Vice-Admiralty Court at
Quebec, 26th December, 1840.
See the case of Simpson v. Hand,

6 Warton's Pen. R. 311, as to
the want of due attention in a
stationary ship at anchor.

343

CASES IN THE VICE-ADMIRALTY COURT

Friday, December 17, 1841.

THE DAHLIA— Grossarp.

Dahlia. Collisioit. — The omission to have a light on board, in a river or

harbour at night, amounts to negligence jier ae.

Every night in the absence of a moon is a dark night in the
purview of the Trinity House regulations.

More credit is to be attached to the crew that are on the alert, than
to the crew of the vessel that is placed at rest.

The regulations of the Trinity House require a strict construction
in favour of their application.

Judgment. — Ron. Henry Black.

This is a claim for damages on the part of the brig
Xenophon against the bark Dahlia, incurred in the night
of the 19th of September last, in the port of Quebec, by
running against the Xenophon as she lay at anchor.

The evidence consists of the testimony of eight wit-
nesses on the part of the claimants, and of ten wit-
nesses on the part of the defendants. There is a good
deal of contradiction in the testimony, especially in
respect to the degree of darkness, and to the distance in
which objects might be seen at the time of the collision.
But there are facts sufficiently established by proof to
enable us to determine to whom fault, or want of due
care, is to be imputed, and upon whom the damage re-
sulting from the collision ought to fall.

The collision occurred about half after eight o'clock in
the evening of the 19th of September. The sun had
been down upwards of two hours, and the new moon had
set. There was no other than starlight in the firmament.
There was no light hoisted or shown at the time, from the
brig Xenophon, as required by the By-laws of the
Trinity House. Those regulations required that "all
ships or vessels in dark nights, at anchor in the stream

FOB LOWER CANADA.

248

opposite the town, should show a light at the bowsprit
end on the flood tide." Was it a dark night at the time
of the collision in the purview of the Trinity House
regulations ? Mr. Lambly, Harbour Master for the port
of Quebec, considers a dark night, within the meaning of
the By-laws, to be one in which there was neither moon-
light or starlight existing at the time of the collision. As
there was starlight existing at the time of the collision, the
Xenophon was not bound by the Trinity House regula-
tions tc exhibit a light, according to the construction
given to them by Mr. Livmbly. But I cannot accede to
this construction; it is too large and latitudinary, and
does not afford that security to the trade of the port
which was intended and ought to be given. Every night
in the absence of the moon is a dark night ; the word is
used in contradistinction to moonlight nights. The
rules do not look to pitchy or Egyptian darkness, but to
that degree of darkness or obscurity which hovers over
the earth in the absence of sun and moon, and which
must inevitably render hazardous and difficult the move-
ments of vessels in a narrow stream, and impelled by
" smart breezes " and rapid currents, and surrounded on
all sides by vessels at anchor, and by the glooom and in-
distinctness of adjoining precipices.

The witnesses differ exceedingly as to the degree of
the darkness, and how far objects could be distinctly seen.
I attach the more credit to the witnesses on the part of
the Dahlia on this point. The crew were all up and on
the alert and look out, and under a pressing necessity to
look sharply. On the other hand, the crew of the
Xenophon had placed the vessel at rest, and all but the
mate had retired u^om deck, and their attention and vigi-
lance were not in requisition. The master of the Dahlia
states that, if the Xenophon had shown a light, the Dahlia
would not have been brought to, at the time and pliicc
selected, and the collision would have been avoided. The

R 2

Dahi.u.

','■ 'If 1 1

344 CASES IN THE VICE-ADMIRALTY COURT

Dauua. mate asserts that the bark would have seen the light —
had one existed on board the Xenophon — before the
Dahlia rounded to under the stern of the large vessel
aliead, and the collision would have been saved. We
are therefore warranted by the testimony to conclude
that the want of a light on board the brig was one pro-
curing and substantial cause of the casualty. And what-
ever indiscretion may be imputed to the Dahlia, in
carrying so much sail and rounding to at the time and
place she did, the brig Xenophon is chargeable with a
fatal default in the case, and which I think defeats her
claim for damages.

I cannot but be of opinion that the evening was suf-
ficiently dark to require a compliance with the Trinity
House regulation, and it strikes me that the regulation
requires a pretty strict construction in favour of its force
and application, and that it would be very unsafe and con-
trary to sound policy, to leave the question of the degree of
darkness to the loose and interested, and conflicting opinions
and conjectures of the crews of the vessels in the port, so
long as we have so definite and certain a test of darkness
as that arising from the fact of a night without a moon.
The Ch. J. of Pennsylvania in the case of Simpson v.
Hand («), in which a vessel was anchored at night in the
channel of the river Delaware without a light, and for
want thereof was run into, very stringently observed that
having a light on board was an indispensable precaution,
and the omission in a river or harbour at night amid an
active navigation amounted to a negligence per se.

for these reasons, I am of opinion, that the claim on
the part of the Xenophon ought not to be sustained.

Duval and Anderson, for the Xenophon.
Gairdner and Stimrt, contra.

(a) 6 Wharton, 311.

Foil LOVVKB CANADA.

345

10th Augitsty 1842.

DUMFRIESSHIRE— GowAN.

In order to provent proctors from proceeding in causes, on instruc-
tions from parties not possessing a legal persona standi to prosecute a
cause, the Court may require the production of proxies.

DUMVRIKS-
SHIRE.

Judgment. — Hon. Henry Black.

The Honorable Charles Richard Ogden, Her Majesty's
Attorney-General for Lower Canada, being absent from
the Province, there were instituted in this court several
suits for the recovery of penalties under the Passengers
Act, 5 & 6 Wm. 4, cap. 68, the 18th section of which
directs that the proceedings shall be prosecuted as for
offences under any Act of Parliament now in force for the
prevention of smuggUng or relating to the customs, or to
trade or navigation ; and accordingly any such penalty or
forfeiture came to be recoverable according to the Act
regulating the trade of the British possessions abroad,
3 & 4 Wm. 4, c. 59, the 66th section of which provides
that no suit shall be commenced for the recovery of any
penalty or forfeiture except in the name of some superior
officer of the customs or navy or by His Majesty's Advo-
cate or Attorney General for the place where such suit
shall be commenced. The proceedings in these suits are
commenced in the name of the Attorney- General, and
signed " C. R. Ogden, Attorney- General, per F. W. Prim-
rose, Queen's Counsel, duly authorised." The defendants
having appeared and given the usual security, moved
"tiiat the Honorable F. W. Primrose do produce his

S' 11

340

CASES IN THE VICE-ADMIRALTY COUllT

DuMpniKS-

SHIRK.

ilill

proxy and the authority under which he instituted, and
prosecutes the present cause or business before the
Court." Mr. Primrose resisted the application, and the
Court having ordered the production of the proxy, and
the order not having been complied with, the Court
cannot do otherwise than maintain the motion made to
dismiss the defendants from all further observance of,
justice in these causes, and the bail given on their behalf
to answer the actions from the recognisances by them
entered into, and from all further observance of justice
therein. It is true that in the more modern practice of
the Admiralty Courts the rules respecting the production
of proxies have been relaxed for the convenience of the
practitioners ; and proctors have been permitted to appear
on behalf of parties without being called upon to exhibit
any proxy. But, the principle has never been abrogated,
and the rules established by His Majesty in his Privy
Council, on the 27th of June, 1832, expressly declare
that proxies may be required, in order to prevent proctors
from proceeding in causes on instructions from parties
not being themselves entitled to intervene, or not having
a legal persoim standi, to prosecute a cause. During the
absence of the Attorney-General the powers and duties
of the office devolved upon the Solicitor- General as stated
by Lord Ifaws/e/c? in Wilkes's Case («), and by Lord Chief
Justice Wilmot, in delivering the unanimous opinion of
the judges before the House of Lords, in the same
case (ft). The Solicitor-General's authority might readily
have been obtained by Mr. Primrose, who could then
have exercised all sucii powers as might by such autlin-
rity have been confided to him. The instructions
prosecute appear to have emanated from the emigra
agent, a party not being himself entitled to intervene, nor
having a legal jjersorm standi to pi'osecute, and the cases

(a) Wilmot's Opinions iiud
Jadguicutti, p. 321).

(i) 4 Buirow's Rep. p. 2548.

FOB LOWEU CANADA.

arc therefore within the rule above mcntioncti, which the
Court cannot do otherwise than apply.

Hon. Francis Want Primrose, Q. C, for Attorney-
General ; Jl. S. Anderson, for Defendant.

LADY SEATON— Talbot.
DROMOHAIR— Pyne.
INDEPENDENCE— M'Cappine.

Per Curiam.

These cases being in the same situation as the last, the
same judgment must be entered.

Report of the law oflBcers of the Crown on the subject
of certain appeals, asserted by the Honorable Francis
Ward Primrose, from decrees of the Vice- Admiralty Court,
Quebec.

To His Excellency The Bight Honorable Sir Charles
Bagot, G. C. B., Governor- General of British North
America, 8fc. 8fc.

May it please your Excellency.

In obedience to your Excellency's commands we have
attentively examined the proceedings in the Vice-Ad-
miralty court, in the case of the Attorney-General v.
James Gowan, master of the Dumfriesshire, together with
the correspondence between Mr. Secretary Rawson, and
the Honorable Mr. Primrose, Queen's Counsel at Quebec,
in relation to that case, as well as to the conduct of Crown
cases generally, by the Queen's Counsel in the absence of
the Attorney- General, and we have the honour to submit
f uiis our report for the consideration of your Excellency.
The suit against the master of the Dumfriesshire,

247

DuuruiKs-

248

CASES IN THE VICE-ADmRALTY COUUT

DUMFRIBS.
SHIRE.

was brought by Mr. Primrose, in the name of the then
Attorney-General, to recover a penalty for an alleged
infringement of the Passengers Act, 5 & 6 Wm. 4, c. 58,
from the instructions given to him by the chief agent for
emigi'ants, without any proxy from the Attorney-General
who was in England on leave of absence. The Court
proceedings were signed " C. R. Ogden, Attorney- General,
})er F. \V. Primrose, Queen's Counsel, duly authorised."

The master of the vessel appeared by his proctor in
the Vice-Admiralty court, entered into the usual stipula-
tion or bond, and in due course moved that " the Honor-
able F. W. Primrose do produce his proxy, and the
authority under which he instituted and prosecutes the
present cause or business before this Court."

Mr. Primrose resisted this application, but the judge
sustained it and ordered the production of a proxy, and
this order not having been complied with, the suit was
afterwards dismissed. A representation upon the subject
having been made to your Excellency by Mr. Primrose,
he was directed to assert an appeal from the judge's
decree, and in future cases to use the name of the collector
of the customs, under GCth section of the Act 3 & 4 \Vm. 4,
c. 59, and the 18th section of the Passengers Act, in order
to avoid similar objections.

Mr. Primrose has very correctly stated that the new
Passengers Act having completely altered the mode of
proceedings to be had in future, the decision of this
question (the necessity of a proxy), in so far as that Act
(5 & G Wm. 4, c. 53) is concerned, is a matter now of
indifference. With reference however to the Crown cases
generally, both in the Vice-Admiralty and other courts,
the question raised in the case of the master of the
Dumfriesshire is no doubt of great practical import mce,
as the personal attendance of Her Majesty's Attorney-
(Jeneral fur Lower Canada, in ail tlic courts, is rendered
impracticable, by the judicial organisation of these coui'ts

FOR LOWER CANADA.

into distinct and separate tribunals, possessed of equal
I)ovvers and of the same jurisdiction, which they exercise
at the same time in different and distant districts.

In examining the question we could not fail to observe
the essential difference in the practice of the Admiralty
from that in use in the other courts. The Admiralty
Courts administering the civil law of Rome, have closely
followed the procedure of the Roman system. Hence at
the outset of a suit in imitation of the old Roman stipu-
lations or bonds judicatum solvi, de judicio sisti, et de rato,
a defendant is required in the Admiralty to give bond by
which he and his sureties submit to the jurisdiction of
the Court, bind themselves to answer the action, to j-i/ide
the hearing of the cause, to satisfy the condemnation, and
to pay what is adjudged with expenses. This bond at
the present day, like the old stipulation, is given techni-
cally, not by the party but by his proctor. " The stipu-
lation de rato, as it was shortly called, or ratam rem habi-
tiirum domimim, was one required of the proctor of the
actor or plaintiff, by which he was required to give security
that the principal should ratify his acts. Digest. Lib. 46,
Tit. 8. Ratam rem haberi, et de ratihabitione. It was not
required universally, but only when it was not clear
whether the proctor was or was not authorised to act for
the principal in the matter in question. Code 3, 13, 1.
Vinnius in Inst. 4, 11, in princip.. No. 1. The reason of
the rule is obvious ; if he had authority, tlie stipulation
was unnecessary ; if he had not, the judgment would not
be binding on the plaintiff, and the defendant might be
called on to litigate the same question again ; periculum
cnim est iterum domintts de eddem re experiatur. Gaii
Instit. 4, 93, Justinian Instit. 4, 11, in principio. If
there was no question of the proctor's power to act for
the principal, as if he had been constituted proctor in
Court apud acta. Code 2, 57 ; or if a written authority
was in the defendant's hands, the stipulation was not

249

DUMFBIBS-

SHIRE.

D< >

260

CASES IN THE VICE -ADMIRALTY COURT

DUHFRIBS-
SUIBK.

required, Dig. 3, 3, 65." — American Jurist, No. 33, p. 69,
in notes.

The rules of practice settled at Doctors' Commons for
the use of the Vice-Admiralty Courts, under the statute
of the 2 Wm. 4, c. 51, pursuing the old Eoman law,
expressly require that a proxy when called for shall he
exhibited by the party.

In the case of the Dumfriesshire, had the proceedings
been actually conducted by the Attorney- General in per-
son, no proxy would have been required, as the Court
was bound to recognise the known official asserter of the
rights of the Crown, and the Queen's constituted attorney,
to represent Her Majesty in her courts of justice. The
official character of the Attorney-General is his proxy :
Mr. Primrose represented himself before the Court in
the capacity of Queen's counsel, duly authorised by the
Attorney-General, and the question arises whether the
Court was bound ex officio to recognise him in that cha-
racter, as it would have recognised his principal, the
Attorney- General. From the formula used by Mr. Prim-
rose he did not attach to his patent of Queen's counsel,
an implied authority at his own discretion to sign and act
for the Attorney-General, nor could he legally possess
any such authority ; it is, " as duly authorised by the
Attorney-General." That Mr. Primrose was not autho-
rised, he states himself that the Attorney-General was in
England ; he does not state that he had a general autho-
rity from the Attorney-General to use his name of office,
but he justifies his proceeding under instructions from
the proper government officer, " with knowledge and
sanction of government." The term proper officer, here
refers to the chief agent for emigrants, who clearly could
confer no authority to use the name of the Attorney-
General, and as to " knowledge and sanction of govern-
ment," such vague terms cannot be understood to supply
any additional authority.

FOK LOWER CANADA.

251

Under a system of practice which authorises a defendant
to call for the power or proxy of the adverse agent or
proctor, in a case where that agent professed to act upon
an authority delegated to him by another, and where the
sufficiency of that authority, if produced, might have been
questioned, the Admiralty judge required the production
of a proxy.

In reviewing the proceedings of his Court, we cannot
but acquiesce in the legality of his judgment.

On the other hand, adverting to the practice of the
Common Law Courts of Lower Canada, we find a totally
different system prevailing, under which it is an axiom
that the authority of an attorney cannot be questioned by
the opposite party. The doctrine of stipulations is wholly
unknown in these courts, and attorneys are officers acting
for their clients, and in their names, under the control of
the several tribunals. There is no rule of law by which
one attorney may not delegate to another the power of
acting, and therefore of signing acts for him, and there
is even an express rule, in the Court of Appeals which
enjoins upon attorneys residing out of the city of Quebec,
to appoint an attorney resident there as an agent for
them. We are not aware of any rule either in the practice
of the Courts in England, or in either of the sections of
this Province, by which the Attorney-General, or any
other attorney, may not delegate to a professional brother
the power of signing If -^al proceedings for him and in his
name. The argument ;i inconveniente, resulting from the
organisation of the Courts of Lower Canada, would be
easily shaken by a judicial decision founded upon some
known rule of law. But if precedents be adverted to, it
will be found that they are in favour of the practice of
conducting and signing proceedings in the name of the
Attoniey-General by other counsel. This practice has
been sustained, with reference to Mr. Primrose himself,
by Ihu Court of King's lionch at Quebec, in the cases of

DOMrRIBS-
SHIKE.

\ '

252

CASES IN THE VICE -ADMIRALTY COURT

DUMFRIKS-

SHIRB.

the Queen v. Bonner, and the Queen v. Petry, and also in
the District Court of Quebec. We believe that it may
be said that the practice never has been shaken, and has
been and is general. With reference to the course which
obtains in England, we know that in some proceedings
under the excise laws at the instance of the Crown, the
Solicitor of the Treasury is the prosecuting ofl&cer, and
his printed name at the foot of process has been held
sufficient.

We are therefore humbly of opinion that the Attorney-
General may, in his discretion, empower the Queen's
counsel to conduct the Crown suits and prosecutions in
his name, by giving them special instructions in particular
cases, or in cases of emergency or requiring celerity and
despatch, by adopting and confirming acts done under a
general authority to defend the interests of the Crown
when liable to be prejudiced.

AU which is most respectfully submitted by your
Excellency's, &c.

L. H. Lapontaine, Attorney-General, L. C.
EoBT. Baldwin, Attorney-General, U. C.
T. C. Aylwin, Solicitor-General, L. C.
Jas. E. Small, Solicitor-General, U. C.

Kingston, IQth January, 1843.

i 1

FOR LOWER CANADA.

2Qth Attgtist, 1843.

ROBERT AND ANNE— Richmond.

Seamen while acting in the line of their strict duty, cannot entitle
themselves to salvage. But extraordinary events may occur, in
which their connexion with the ship may be dissolved de facto, or by
operation of law, or they may exceed their proper duty, in which
oases they may be permitted to claim as salvors.

Judgment. — Hon. Henri/ Black.

The ship Robert and Anne sailed on a voyage from
London to Quebec, on the 34th of April last, and in
coming up the river St. Lawrence struck on a reef at or
near Matane, about two hundred miles below Quebec.
The master believing her to be a total wreck abandoned
her, coming on shore in his boat with part of his crew,
and proceeding to Quebec by land to make the usual
protest, which he did. The chief mate and the rest of
the crew remained on board, and by their exertions the
vessel was got off, with no very great damage, and came
to Quebec («), where the crew who had signed articles for
a voyage to Quebec and back to Great Britain, instituted
proceedings in this court as salvors claiming salvage.
But, as their connexion with the vessel does not appear
to have been dissolved de facto, or by operation of law,
and as, in my opinion, they have not exceeded the duty
which devolved upon them, under their articles, to labour
in the preservation of the vessel and cargo, out of which
they were to be paid their wages, they are not entitled to
be considered as salvors, and the suit must be dismissed.

It appears to me that the seamen, including the pro-

(a) Sailed on her return voyage on the 29th August of the same
year.

353

Robert and
Annb.

" I

' 1

254

CASES IN THE VICE -ADMIRALTY COURT

bobbrt and
Anrb.

B '

I li!

moter, ought to be allowed their wages up to the termi-
nation of the voyage, and that the stranding of the ship
in the St. Lawrence, and her recovery and arrival at
Quebec by the exertions of the crew, do not present a
case entitling them to any extraordlaary extra-compensa-
tion by way of salvage, as for any hazardous and
meritorious services. The seamen did their duty and
stuck to the shijj, and got her off the rocks, and brought
her to port, and their wages justly continued until the
voyage ended. But there was nothing extraordinary in
the case, and of so perilous a nature as to entitle ihera to
compensation beyond their contract. If the ship had not
been recovered, but had perished on the rocks where she
was stranded, notwithstanding all the faithful and
strenuous efforts of the crew, and there had been property
saved, then the crew might possibly have had an equit-
able claim, which would have been felt by a Court of
Admiralty, for compensation out of the property saved,
for their particular services. But here the continuance
of their wages up to the arrival of the ship at her port of
destination is, I should apprehend, sufficient for the
occasion, and to that extent I think they ought to be
allowed, on the ground that the voyage did not end, nor
were they discharged from their contract previously. I
do not perceive the policy or the authority in the marine
law, that would allow the seamen a further reward in the
nature of salvage ; for the case does not strike me, under
the circumstances, as coming within the exception to the
ordinary principles of the maritime law on the subject of
salvage (b).

Qairdner and Stuart, for the seamen.
. Duval, for the ship.

(ft) This very important legal
question was fully and carefully
discussed before the High Court
of Admiralty of Euglaud, on the

14th May, 1852, in the rase of
the Florence (16 Jurist, 572),
wherein the crew were rewarded
as salvors. Dr. Lushington, justly

B'OR LOWER CANADA.

806

distinguished for his eminence as
an Admiralty judge, ''ommenced
his judgment in t^-ac case as fol-
lows: -I uuuoeive the question
to be this, whether when a mer-
chant ship is abandoned at sea,
sine ape revertendi aut recupe-
randi, in consequence of damage
received and the state of the ele-
ments, such abandonment taking
place hondjide and by order of the
master, for the purpose of saving
life, the contract entered into by
the mariners is by such circum-
stances entirely put an end to ;
or whether it is merely inter-
rupted, and capable by the
occurrence of any and what cir-
cumstances, of being again called
into force. I think all the cir-
cumstances I have stated are
indispensable to the just framing
of the proposition. First, the
abandonment must take place at
sea, and not upon a coast, for if
a ship be driven upon a coast and
become a wreck, and the mari-
ners escape to the shore, the con-
tract enures to this extent at
least, that if they act as salvors,
and successfully, so as to save

enough to pay their wages, they
will be entitled to them though
not to salvage; if they do not
so exert themselves, their wages
are lost. — The Neptune, 1 Hagg.
227. Secondly, the abandanmont
must be sine spe revertendi ; for
no one would contend that a
temporary abandonment, such as
frequently occurs in collisions,
from immediate fear, before the
state of the ship is known, would
vacate the contract. Thirdly,
the abandonment must be bond
fide for the purpose of saving
life. Fourthly, it must be by
order of the master, in conse-
quence of danger by reason of
damage to the ship and the state
of the elements."

In the case of the barque
Flora, Wilson (27 Oct. 1832),
Judge Kerr allowed salvage to
the chief and second mates and
carpenter, for their meritorious
services, equal to one-third of
the gross proceeds arising from
the sale of the articles saved from
the wreck. — See Nautical Maga-
zine for February 1833, Vol. 2,
No. 12, p. 87.

kudekt and
Anns.

I i

\\\

25G

CASES IN THE VICE-ADHUKALTY COURT

Tuesday, 21fi< April, 1840.

Janb.

■t '

JANE — CUSTANCE.

In cases arising out of the abrupt termination of the navigation of
the St. Lawrence by ice and a succession of stomis, in the end of
November, seamen shipped in England, on a voyage to Quebec and
back to a port of discharge in the United Kingdom, entitled to have
provision made for their subsistence during the winter, or their
transportation to an open seaport on the Atlantic, with the payment
of wages up to their arrival at such port.

The master is not at liberty to discharge the crew in a foreign
port without their consent ; and if he do, the maritime law gives the
seamen entire wages for the voyage, with the expenses of return.

Circumstances, as a aemi-naufragium, wiU vest in him an autho-
rity to do so, upon proper conditions ; as by providing and paying
for their return passage, and their wages up to the time of their
arrival at home.

It is for the Court to consider what would be most just and
reasonable ; as whether wages are to be continued till the arrival of
the seamen in England, or to the nearest open commercial port, say
Boston, or until the opening of the navigation of the St. Lawrence.

Under the peculiar circumstance of this case, wages decreed,
including the expense of board and lodging, until the opening of the
navigation of the St. Lawrence.

When receipts and discharges of claims are given by the crew of a
vessel they are not to be taken in the Admiralty as conclusive ; and
where settlements and receipts are made under undue and oppressive
influence, and without free consent, they do not bar an equitable
claim for compensation beyond what the crew have received.

Judgment — Hon. Henry Black.

The present is one of the many- cases arising out of
the abrupt termination of the navigation of the St.
Ijawrence by ice and a [succession of storms, in the end
of November last, and which proved so disastrous to
those ships which from necessity or other cause, were
detained in the port of Quebec beyond the usual time

FOn LOWER CANADA.

indicated, by the average of seasons, as the prudent
period of departure. The promoters were shipped at
Falmouth, in England, on a voyage from that port to
Quebec, and back to a port of discharge in the United
Kingdom, at £2 lOs. sterling, per month, ^he Jane sailed
from Quebec on the 28th November, on her return voyage,
but having encountered foul winds and boisterous weather
about the 1st of December, below the Brandy Ports,
she was obliged to be run ashore, in order to avoid total
shipwreck from the immense and sudden accumulation
of drift ice in the river ; she was stranded at high water
at St Andr6, on a muddy bottom, and put into a place of
safety for the winter, about 100 miles below Quebec. On
the 16th December, the master, (having returned from
Quebec,) informed the crew that the vessel had been con-
demned ; and after various overtures to the men prevailed
upon them to accept their discharge with wages up to
that period, which were paid — ten shillings currenc}' in
cash — and the balance by drafts on the agent at Quebec,
giving receipts in full of all further demands, but without
any tender of indemnity, or the means of travelling to an
open Atlantic port. They were afterwards, at the expense
of the ship, brought to Quebec, where they again signed
receipts in full of all further claims and demands. The
libel alleges a tortious discharge procured by false and
fraudulent representations ; and that no provision had
been made for their subsistence during the winter, or
their transportation to an open sea-port on the Atlantic,
with the payment of wages up to their arrival at such
port ; and claims wages up to the 1st June next, with the
cost of their board during that period. The defence rests
upon the right of the master under the circumstances to
discharge the crew, and the fact of their having executed
receipts, in full satisfaction of their claims, and releasing
the master, ship and owners from all further liability.
Two questions have been presented at the argument

957

Janr.

258

CASES IN TIIK VICK-ADMIHAI.TV COUnX

Jank. for the deliberation of the Court, and I have come to a
conclusion.

1. That the receipts and discharges of claims by the
crew of the vessel given in December last, are not a bar
to their further claim for compensation. The receipts
are good evidence of the money received, and for which
they are to be charged, but no further. It appears to me
from the testimony of Blouin the pilot, and of two of the
messmates, that the settlement and receipts were made
under undue and oi)pressive influence, and without free
consent. The information upon which the coercion was
founded was not true ; at least there is no evidence that
the vessel was regularly condemned, and for aught that
appears, the information may have been false. Mariners,
in the view of AoKkiralty law, are inopes consilii, and are
under the special protection of the Court, in like manner
as minors and weak persons are entitled to have the
guardianship of a Court of Chancery thrown over them.
They are treated as wards of the Admiralty. The obser-
vation of Lord Stowell in the case of the Juliana {a), and
of Judge Story in Harden v. Gordon (6), as well as of
Judge Ware in the case of the David Pratt (c), show in a
strong light the jealousy and vigilance, and parental care
of the Admiralty, in respect to hard dealings, under for-
bidden aspects, with the wages of seamen. I think that
in the spirit and policy of the cases, the discharges and
receipts in full, almost 1 may say extorted from the sea-
men, ought not to bar an equitable claim for compensa-
tion beyond what the promoters have received.

2. The amount of the compensation is another, and
perhaps a more unsettled question'. The decision of Lord
Stowell in the case of the Elizabeth {d), comes nearer to
the case before us than anything I have seen. It is there

(a) 2 Dodson, 504.
\b) 2 Mason, 561.

FOR LOWEH CANADA.

369

said that thongli the master he not at liherty to
discharge his crew in a foreign port without their consent
(and if he does, the maritime law gives the seamen entire
wages for the voyage with the expenses of return), j'et
that circumstances — as a semi-nnufragium — where repairs
may be doubtful or very dilatory, might vest in him an
authority to do so, upon proper conditions, as by providing
and paying for their return passage, and their wages up
to the time of their arrival at home. I think the present
case would warrant the adoption of this rule ; and yet
there is a latitudinary discretion resting in the Admiralty
Judge — and must be under the special circumstances —
and I apprehend he may consider what would be most
just and reasonable ; as, whether the wages were to be
continued to the arrival of the seamen in England, or to
the nearest open American commercial port, say Boston,
or until the opening of the navigation of the St. Lawrence.
One or the other of the alternatives, I think I must adopt,
and from a local knowledge and view of the circumstances
of this case, as they appear before me, I award wages,
including the expense of board and lodging until the
opening of the navigation of the St. Lawrence {e).

Janr.

Alleyn, for promoters.
Duval, Q. C, for respondents.

8 2

^HO

CASKS IN THK VICE-ADMinALTY COURT

8i I

Tuesday, IQth November, 1847.

LADY SEATON— Spencer.

Ladt Sbaton. General Merchant Seamen's Act (7 & 8 Viot. 0.112, b. 2). Articles
' ' not signed by the master, as required by the General Merchant Sea-
men's Act, cannot be enforced.

This was a proceeding on the part of William Hodgson,
to recover a sum of money due to him for wages earned
on a voyage from the port of London to Quebec. The
demand was objected to on the ground that he had
entered into an agieement with the master on the 1st of
September last, to proceed on a voyage from London to
Quebec and Montreal and " back to a port of discharge in •
Great Britain." It was urged, on the other hand, that
the mariner's contract was irregular, because it had not
been signed by the master as required by the Merchant
Seamen's Act. The magistrate, before whom the com-
plaint on behalf of the seaman was made under the
authority of that Act, referred the case to be adjudged by
this Court, and th3 following judgment was this day
pronounced.

Judgment. — Hon. Henry BUtck.

I am called upon in this case to enforce indirectly, — by
refusing to the promoter wages for the services rendered
by him to the ship,— his executory contract to Great
Britain, as the ultimate port of discharge in the articles
which have been produced, those articles not being signed
by the master. The law respecting the reducing to
writing in shipping articles the agreement between the
seamen and the master is but a part of the law, as well
common as statute, which relates to this important object,
and to form a right adjudication upon any branch of it, it

FOR LOWER CANADA.

201

is neceHsary to have in mind the whole scope and policy l**"^ Sbatow.
of the one and the other law upon that head. Without
touching upon this branch of law further than is necessary
for the question immediately under consideration, it is to
be observed that one of the ends and objects of that law
is to ascertain with certainty, — for the protection of a
class of persons who, from their habits of carelessness
and over-confidence, are often over-reached, — the con-
tract into which they enter, both as to the amount of
remuneration that they are to receive, the description of
the service, and the penalties to which they render them-
selves liable by any dereliction of the duties which are
imposed upon them. The ship's articles, and the signing
of them by the seamen, are therefore of importance, as
settling the terms of the contract, and rendering present
to the mind of the seaman, as a conventional obligation
upon him, — with the binding force of which he is better
acquainted than that of statutes which he does not read, —
the necessity of obedience to the master, and of the faith-
ful discharge of his duty ; adding at once a promise to
perform it, and an agreement to suifer all the penalties
which the law imposes in case of failure. To attain this
end, the legislature has prescribed a certain form of
articles ; they have conferred upon the master, upon his
observing these forms, summary and extraordinary means
of enforcing this contract, otherwise a simple contract
locati conducti ; and they have, on the other hand, sub-
jected him to pecuniary penalties for taking into the
service of the ship a Si aman without executing regular
articles. This contract stands not then upon the footing
of an ordinary contract hcati conducti. The provisions
just adverted to are provisions of a great maritime power,
in the discipline and order of whose seamen is to be found
not only the foundation of its merchant navy, but also
that of its national navy.
With an object in view of such high importance, and to

rrr

362

CASES IN THE VICE-ADMIUALTY COUKT

|l '

li Apt Skaton . use the words of the preamble of the statute, to promote
the increase of the number of such seamen, and to afford
them all due encouragement and protection, on a large,
conotani, and ready supply of whom the prosperity,
strength, and safety of the United Kingdom and of Her
Majesty's dominions do greatly depend, it is enacted,
" That it shall not be lawful for any master of any ship
of whatever tonnage or description belonging to any sub-
ject of Her Majesty, proceeding to parts beyond the seas,
or of any British registered ship of the burden of eighty
tons or upwards, employed in any of the fisheries of the
United Kingdom, or in proceeding coastwise, or other-
wise, from one part of the United Kingdom to another, to
carry to sea any seaman as one of his crew or complement
(apprentices excepted), unless the master of such ship
shall have first made and entered into an agreement in
writing with such seaman, specifying what wages such
seiunan is to be paid, the quantity of provisions he is to
receive, the capacity in which he is to act or serve, and
the nature of the voyage in which the ship is to be em-
ployed, so that such seaman may have some means of
judging of the period for which he is likely to be engaged;
and that such agreement shall be properly dated, and
shall he signed by such master in the first instance, and by
the seamen respectively at the port or place where they
shall be shipped ; and that the signature of each of the
parties thereto shall be duly attested by one witness at
the least, and that the master shall cause tlie agreement
to be read over and explained to every such seaman in
the presence of such witnesS; before sucli seaman shall
execute the same " (a). The statute confers summary
remedies in various cases for enforcing this contract
against the seamen, and subjects tho master to a penalty
of 10/. for every seaman he shall carry out to sea with-

(n) 7 & 8 Vict. c. 112, g. 2.

FOR LOWER CANADA.

263

out having entered into the agreement required by the Lady Seaton.
statute (b). The signing is not a mere sokinnitas Juris, but
it has substantially this effect, that it is evidence against
and binds the master personally, whether he goes with
the ship or not. In an action for the penalty under the
last-mentioned clause of the statute, it is apprehended that
it would be no defence to such an action for the master
to show, as the articles required by the statute, articles
which were not signed by him. The form in which
instruments of this nature are to be executed having been
directed by the statute, it is not easy to believe that in
settling this form such a condition should have been
required without consideration ; it is one of the pro-
visions taken from Sir James Graham's Act (c) not found
ill ■' previous statutes in this matter (c?); and an addi-
tional reason is here afforded that this provision is not
without an object.

The statute thus requiring ship's articles to be signed
by the master, and the articles in question in this cause
not being so signed, the master has voluntarily put
himself out of the provisions of the statute law on this
head, and it is impossible for the Court to afford liim
any aid in enforcing a contract which he has not invested
with the forms which the law requires. If the Court
were to enforce this contract it would indirectly enforce
the carrying of the promoter to sea, without the ship's
articles required by the statute, and be aiding the master
in contravening the statute. Now, it seems to be a good
general rule, that wherever a contract has for its basis
the performance or omission of some act, the doing or
omitting of which would contravene the provisions of the
statute law, the agreement is invalid, no less than it
would be where in any siuiiliir case tlie provisions of the

{h) 7 fi 8 Vict. c. 112, s. 4.
{(') 5 & (J Will. 4, c. 19, 8. 2.
{ft) 2 Geo. 2, c. 36 ; '-H O^-o. -i,

'■. 7."5 ; The Baltic Merchant,
Edwards's Rep. 87.

264

CASES IN THE VICE-ADMIRALTY COURT

Lady Seatoh. common law might be infiinged by the agreement
made (i).

The suit is for wages earned for services up to the
arrival of the ship at this port, the defence is a sub-
sisting contract, and the evidence offered of this contract
is an instrument not possessing the characters which the
law requires for such a contract. — Under these circum-
stances the Court has but one duty to perform, which is
to award the amount of the wages for the services actually
rendered to the ship. It has no power to enforce in-
directly and prospectively a contract entered into without
receiving its proper completion, by the fulfilment of the
forms and conditions which the law, from high motives of
policy and justice, has required for contracts of this
nature.

Dtinbar Boss, for seaman.

John Maguire, for ship.

(e) Lord Holt, in Bartlett v.
Vinor, Carth. 252 ; Lord Tenter-
den, in Wetherell v. Jones, 3 B.

& Adol. 226 ; and Lord Kaimes's
Principles of Equity, Book i.,
Part i., p. 63.

FOR IiOWKU CANADA.

265

1«^ Augmt, 1848.

JOHN MUNN— EicHARDSON.

If it be practicable for a vessel which is following close upon the
track of another to pursue a course which is safe, and she adopts
one which is perilous, then if mischief ensue she is answerable for all
consequences.

» Judgment. — Hon. Henri/ Black.

This was a case of racing between two of the large
passenger steamers plying on the St. Lawrence, between
Quebec and Montreal. The Lord Sydenham, on the
twenty-fourth of May last, at the usual hour advertised
for her departure, left her berth at the wharf in the
harbour of Quebec, at which she had been lying with her
head down the stream, and taking a sweep round towards
the Point Levi Shore, so as to get her head up the stream,
returned into the usual course on the north side of the
river. A few minutes after the Lord Sydenham started,
the John Munn, a swifter steamer, which had been lying
with her head up the stream, at a wharf above that from
which the Lord Sydenham started, also got under weigh
and proceeded up the river on the north side. The
superior speed of the John Munn brought her nearly up
to the Lord Sydenham at the time when that vessel was
nearly abreast of the brig Henry — then lying at anchor
to the southward of both vessels in that part of the river
known as the ballast giound — when the John Munn,
in trying to pass the Lord Sydenham, and between her
and the brig, ran into the latter, doing the damage for
which this action is brought by the owners of the brig
against the John Munn. An immense mass of evidence
has been adduced in the action, and as is usual in such
case, the statements of the witnesses are very conflicting.

JOHR MURR.

266

CASES IN THE VICK-ADMIRALTY COURT

John Mum The brig being at anchor, and no blame being imputed to
her, the contest came virtually to be, which of the two
steamers was responsible for the damage done to the bi'ig.
In a case of this kind the rule of law is, that if it be prac-
ticable for a vessel which is following close upon the
track of another, to pursue a course which is safe, and she
adopts one which is perilous, then if mischief ensue she
is answerable for all consequences (a). The Court has
the good fortune upon this occasion to be assisted by
Captain Edward Boxer, R. N. C. B., one of the most
experienced and able seamen in the British service,
whose skill and knowledge can be best appreciated by
those of his own profession (h). He has listened with
great patience and attention to the arguments of the
counsel, and has carefully examined all the evidence in
the case, and his opinion is decidedly against the conduct
of the John Munn, an opinion which the Court cannot
have a moment's doubt in adopting ; and I pronounce
accordingly.

(The amount of the damage was subsequently esta-
blished at the sum of 304/. 4s. 2(1. currency, by the
Registrar and merchants to whom the usual reference was
made (c).)

Andreiv Stuart, for the brig.

Dunbar Ross, for the John Munn.

(a) Lord EUenborough, in
Mayhew i\ Boyce, 1 Starkie's
Rep. 425.

(6) Subsequently Rear-Admi-
ral Boxer, who died at Balaclava
during the Crimean campaign.

(c) It is the duty of c ery
vessel seeing another at anchor,
whether in a proper or improper
place, and whether properly or
improperly anchored, to avoid, if

practicable and consistent with
her own safety, any collision.
The Batavier, 4 Notes of Cases,
356, and 2 W. Rob. 407.

Where a vessel at anchor is
run djown by another, the onus
lies on the latte: to prove the
collision arose from some cause
which would exempt her from
liability. Ibid.

FOR LOWKll CANADA.

2(57

Tuesday, 19^/* September, 1848.

MARY JANE— Trescowthick.

Persons furnishing supplies to ships in this country, teclinically Mary Jane.

called material men, have not a lien upon the ship for the amount of , /

their supplies ; and the Court has no jurisdiction to enforce demands
of this nature.

In this case an action was entered against the Mary
Jane, a schooner built and registered within the port of
Quebec, for the value of materials and work supplied to
her bjf John Armstrong.

The libel shortly pleaded that this person was engaged
on or about the 2'Jth of June last by Jonathan Trescow-
thick, the owner and master, to furnish all the iron work
necessary for the fitting out and rigging of the vessel, and
rendering her seaworthj', without which she could not
proceed to sea ; that he was employed on board of her in
furnishing this iron work from the 29th of June to the
9th of the present month of September, dm-ing which
time the schooner was in the harbour of Quebec, within
the District of Quebec ; and that the amount due for the
necessaries in question was 49^. That the schooner was
" a sea-going vessel," and that the owner refused to nay.

On the part of the owner the jurisdiction of the Court
to entertain the suit was denied, and upon this ground
the admission of the libel was objected to.

Judgment, — Hon. Ilcnnj Black.

The question which this case brings under the con-
sideration of the Court is, whether persons furnishing
supplies to ships in this country, — technically called
material men, — have a lien upon the ship for the amount
of those supplies ; and if so, whether the Court has juris-

!:il!

!i ! i

3 II

t r i 1
II 1

268 CASES IN THE VICE-ADMIRALTY COURT

Makt Jans, diction to enforce such lien. The word lien is used from
the want of any other word in the English language to
express the exact nature of the right claimed. When
used in relation to material men, as in the question ahove
stated, it has an import different from the ordinary im-
port. Lien, in the common acceptation of the term in
the English law, implies an actual possession in the holder
of it, of the subject upon which it is claimed. There is
no doubt that in this sense of the word ship-builders, like
other tradesmen in possession of the subject upon which
their labour has been employed, have a lien upon the
subject for the price of their labour, so long as they retain
the possession (a). But the lien here claimed is entirely
apart from the possession ; it is rather a right to proceed
against the vessel, and to be paid out of the proceeds, in
preference to all other creditors, and being strictly the
hypotJieca of moveables, allowed by the civil law, may, to
avoid confusion, be conveniently denominated hypothe-
cary lien.

The hypothec of moveables is, it is believed, unknown
in the English municipal or common law; and in the
civil and maritime law of England is confined within a
small number of cases, such as seamen's wages, and
special hypothecation. It is true that by the general
maritime law of Europe and America, an hypothecary lien
is given for repairs done and materials furnished to other
than domestic ships (fc), and in many countries for repairs
and supplies to domestic ships also (c) ; and this hypo-
thecary lien follows the ship into the hands of a hondjiile
purchaser without notice {d). There are considerations of

' ;i

(«) The Vibilia, 1 Robinson,
p. 6; The Hannome, Ibid. p.
178.

(6) The General Smith, 4
Wheat, p. 438 ; St. Jago de Cuba,
9 Wheat, p. 409.

liv. ler. de I'Ord de la Marine ;
Boulay Paty, Cours de Droit
Coml. torn. i. pp. 110, 124; Ab-
bott on Shipping, p. 149, 7th edit.
{d) Madona d'ldra, Dodson,
p. 40.

FOE LOWER CANADA.

convenience and public policy applicable as well to the
one rule as to the other. The rule of continental Europe
and of America has a strong show of equity in its favour ;
the labour and materials of the material man are incorpo-
rated with the ship, and the owner being allowed to profit
by this augmentation in the value of his ship, without
paying for it, seems to contravene the rule that nemo debet
locupletari aliena jactura. So, it would seem greatly to
facilitate navigation by enabling the master or the owner,
at all times, and in all places, to command for the pur-
poses of his voyage a credit equal to the value of the ship.
The policy of the English law seems to lie deeper. It
has been quaintly but truly said, that " ships were made
to plough the ocean, not to rot in port." The allowing of
hypothecary liens upon moveables is repugnant to com-
mercial policy, and eminently so would be the allowance
of such lien upon ships, as subjecting them to unneces-
sary detention, and diminishing the security of titles to
them. If the material man be unwilling to make repairs
to the ship at the port to which she belongs, upon the
credit of the owner, he may obtain from him a special
hypothecation of the ship, for this as for any other debt.
If the master should require repairs to be made in the
progress of his voyage in a port abroad, — and there be a
necessity of the hypothecation of the ship for the making
of such repairs, — he too may hypothecate the ship (e).
The maritime law of England then in refusing a tacit
hypothecary lien, and in allowing and enforcing a special
liypothecation of the ship, — made by the owner under any
circumstances, or by the master in the progress of the
voyage in case of necessity, — equally provides for the
ship's ploughing the ocean and for her not rotting in port.

969

Mart Jahs.

2 Peere Williams, 367 ; Benzen
V, Jefiries, 1 Lord Raym. 152 ;
Johnson v. Shippen, Salk. 35.

Ii r

870

CASES IN THE VICE-ADMinALTY COURT

'illH

ilili-

Mart Jaww. gi^t whatevei* may be the reason of tlie one or the other
rule, tlie Court is bound to enforce and caiTy into eflfect
the law as it stands.

The commissions to the Judges of the Vice -Admiralty
Courts in the British possessions abroad, empower them
to hear and determine causes " according to the civil and
maritime law of the High Court of Admiralty of England."
The terms of the commissions were settled at a very old
date, they are very general, but necessarily controlled by
the above cited words, introduced with a view to one
uniform system for the guidance of the Courts of Admiraltj'
in every part of the British possessions.

The inquiry thus narrows itself down to the question,
what in relation to material men is the civil and maritime
law of England ? Now, a long course of uniform decisions
in the English Courts, from the time of Charles the Second
down to the case of the Neptune in 1835 (/), has esta-
blished the principle that no hypothecary lien exists for
work done or materials furnished to ships in England.
Where an attempt similar to the present was made by a
person who had repaired a ship, to claim a lien on the
proceeds of her sale, Lord Ilardwicke states it as one of
the questions in the cause, whether the money arising
from the sale should be answerable to the plaintiff; and
then after laying down the rule that the ship itself would
not be liable, he proceeds to say : " If therefore the body
of the ship be not liable or hypotliecated, how can the
money arising by sale be affected or followed, the one
being consequential of the other (g) ? " In the latest case
upon this subject, — that of the Neptune, — the judicial
committee of the Privy Council, upon an appeal from the
High Court of Admiralty of England, expressly denied
that material men ever had, by the English mai'itime law,
in respect of such contracts, any lien upon the ship, or

Shank, 1 Atk.

(/) 3 Knapp's Cases in the
Privy Council, p. 94.

{g) Ex part:
234.

^...^aiMlMlil

FOR LOWER CANADA.

271

any preference over other simple contract creditors on the Mary Janf.
proceeds. The same rule ohtains in Scotland, the muni-
cipal law of which countrj' like our own, in Lower Canada,
recognises hypothecary liens. In the case of Wood v.
Hamilton, the House of Lords, on the 15th June, 1789,
upon an appeal from the Scotch Courts, affirmed a judg-
ment against this claim, although such claims had heeu
frequently allowed in the Courts of Scotland during a
period of four-score years preceding {h). Then, as to
repairs made abroad, in the course of the voyage, the
hypothecation must be express, whether made by the
owner or by the master (t). In the numerous cases in
which repairs have been made, or materials furnished by
orders of the master abroad, — and in which attempts
have been made to enforce the claim of the material man
against the ship, — the hypothecation has been express ;
and the question has generally turned upon the necessity,
which alone could authorise the master to hypothecate
the ship. No tacit hypothecation of the ship has ever
been recognised in the High Court of Admiralty (k) ; and
in the case of the Neptune, already adverted to, in which
a privilege, over the proceeds of the ship in the registry,
was asserted by the Higli Court of Admiralty, the judg-
ment was, after much consideration, reversed by the
Judicial Committee of the Privy Council.

I will shortly advert to another point that has been
pressed upon the Court in the ai'gument of the Counsel
for the promoter. It has been contended that the sixth
section of the Act 3 & 4 Vict. c. 65, confers upon the
Court an authority which it did not previously possess in
such matters. The words of this section are these : —
" The High Court of Admiralty shall have jurisdiction to
decide all claims and demands whatsoever in the nature

{h) Abbott on Shipping, p. 147,
7th edition by Shee.

(t) Justin V, Ballam, Salk. 34.

{k) See judgment of Sir Chris-
toplier Robinson, in the case of
The Maitland, 2 Haggard, p. 254.

878

CASES IN THE VICE-ADMIRALTY COURT

Mart Jani. of salvage for services rendered to or damage received by
any ship or sea-going vessel, or in the nature of towage,
or for necessaries supplied to any foreign sliip or sea-
going vessel ; and to enforce the payment thereof, whether
such ship or vessel may have been within the body of a
county, or upon the high seas, at the time when the
services were rendered, or damage received, or neces-
saries furnished, in respect of which such claim is made."
Without being disposed to narrow the interpretation of a
statute in cases where the exigence or convenience of
commerce calls for an extended latitude of construction,
I think it can scarcely admit of doubt that a vessel built
and registered in a British possession is not a foreign
sea-going vessel within the provisions of this statute. It
was so decided by the High Court of Admiralty in a case,
under the same statute, against a vessel built and regis-
tered in the Province of New Brunswick. The learned
Judge, Doctor Lushington, in delivering his judgment in
that case, said : "If the section in question were intended
to give the Court a jurisdiction with respect to necessaries
furnished to ' any sea-going vessel,' there would be no
difficulty in the case, for this vessel is clearly a sea-going
vessel. I must confess, however, I entertain a consider-
able difficulty in conceiving that the legislature ever
intended to confer upon the Court so extensive and
extraordinary a power." And again : " Looking at the
decisions of the Courts of common law upon this subject,
and at the great jealousy which has been universally
manifested against the introduction of the general mari-
time law for the purpose of enforcing demands of this
description, I cannot think that in the present case I
should be warranted in adopting such a construction of
the statute " (/).

I have not been able to ascertain what the practice may

(I) The Ocean Queen, 1 Robinson, p. 460.

FOR LOWER CANADA.

»78

have been in the Vice-Admiralty Courts in the old British Mart Jane.
Colonies, nor that which now obtains in the Vice-Ad-
miralty Courts of the other dependencies of Great Britain.
I am inclined to believe, however, that this claim of
hypothecary lien was not enforced in the Vice-Admiralty
Courts of the old Colonies. The subject has, since the
declaration of American independence, undergone much
discussion in the Courts of the United States, exercising
Admiralty jurisdiction ; and the claim has there been
maintained for repairs made and necessaries furnished to
a foreign ship, or to a ship in the port of a State to which
she does not belong. But in none of the arguments of
counsel or judgments of the Courts in those cases, is
there a trace to be found of the existence of such a prin-
ciple of jurisprudence in the pre-existing Colonial Courts
of Vice- Admiralty.

If an hypothecation of the vessel could be shewn under
the civil and maritime law and customs of the High Court
of Admiralty of England, then this Court would be bound
to enforce it ; but I am of opinion that there has been no
hypothecation whatever, and I must, therefore, reject the
present libel (m).

Charles Alleyn, for material man.
H. S. Anderson, for owner.

(m) See a learned argument of
Sir Leoline Jenkins, before the
House of Lords, on the compe-
tency of material men to sue

originally in the Admiralty ;
Life of Sir Leoline Jenkins,
Vol. 1, p. 76.

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374

CASES IN THK VICE-ADAURALTY COURT

I Si

2()fh June, 1849.

HEECYNA— O'Brien.

Heroyna. There seems to be no fixed limit to the duration of a maritime

lien , but must be enforced within an equitable period, considering
the nature of the lien and the changes of interest therein.

JuDGJiENT. — Son. Henry Black.

Ihe promoter in this case piloted the ship Hercyna,
froci 'Quebec to Bic, on the 28th of May, 1848, for which
ser^ise h^ was entitled to the sum of 16/. 2s. 6</., sought
to be recovered in this suit. On the 31st July, in the
same ycnr, he took from John Jeflfery, then owner of the
ship, 1 promissory note at three months for the above
sum. The ship having returned to the port, the pro-
moter on the sixth of October, in the same year, again
piloted her down from Quebec to a place between the
Brandy Pots and Bic Island, for which he was paid in
-"loney 16Z. 2s. M. On the 6th November, the note, given
for the first service, was protested for non-payment, and on
the 23rd of January of this year, it was returned to Jeffery,
the maker, by the promoter, who thereupon got back his
receipt for the note. On the 18th of April last, the ship
was sold by Jeffery, through his agent in Great Britain,
to John Richard Broadbent, the present owner, without
notice of the promoter's claim. The ship having again
returned to Quebec, was on the second of the present
month of June arrested on process out of this Court, for
the pilotage earned in May, 1848,- and for which the
promoter claimed a lien on the ship under the maritime
law. As between the owner, at the time of the service
rendered, and the pilot, the claim might perhaps be a
permanent lien on the vessel, but the fact of her having

FOR LOWER CANADA.

275

subsequently passed into the hands of a '. onu fide pur-
chaser, for a valuable consideration, without notice,
altogether alters the case. In respect to such a
purchaser the lien must be enforced within a reasonable
time after the debt became due and the credit expired,
and the conduct of the person claiming the lien must be
such as to make manifest as far as possible his intention
to retain and enforce his lien. What will amount to such
manifestation must depend upon the circumstances of
the case, and is not susceptible of any definite general
rule. In the present case, even admitting that the lien
either subsisted while the note was running, or that it
revived by the promoter's giving back the note, and
receiving back his receipt for it ; yet as he took no pro-
ceedings here against the owner, and did not follow the
vessel home and sue for his claim there, and allowed her
to be sold to an innocent purchaser, without making any
effort to make the lien known, and more especially as he
himself had piloted the vessel down the river on her
second voyage, after the lien accrued, and while it was
conditionally discharged, and had received in cash his
pilotage on the second occasion ; from which a third
might have fairly inferred that he had ro claim upon the
vessel; I am of opinion that as against the honA fide
purchaser, change of ownership, without notice, extin-
guished the lien, which as regarded the new owner may
be considered as stale and inequitable. One of two
innocent persons must suffer in this case, and it is more
equitable that he who could have prevented this, and did
not choose to do so, should be the sufferer, rather than
he who had no means of preventing it {a).

Herotna.

Casault and Langlois, for the pilot.
Lelievre and Augers, for the ship.

{a) Ordonnance de la Marine,
Liv. 2, Tit. 10, art. 2; Valin,

torn. 1, p. 602.

A maritime lien does not in-
T 2

MKraT-TTT

OASES IN THE VICE-ADMIRAM'Y COURT

elude or require possesnon. The
word is used in maritime law
not in the strict legal sense in
which we understand it in courts
of common law, in which case
there could be no lien where
there was no possession, actual
or constructive; but to express,
as if by analogy, the nature of
claims which neither pre-suppose
nor originate in possession. This
was well understood in the civil
law, by which there might be a
pledge with possession and an
hypothecation without possession,
and by which in either case the
right travelled with the thing
into whosesoever possession it
came.

Having its origin in this
rule of the civil law, a maritime
lien is well defined by Lord
Tenterden to mean a claim or
privilege upon a thing to be car-
ried into effect by legal process ;
and Mr. Justice Story (1 Sumner,
78) explains that process to be a
proceeding in rem, and adds, that
wherever lien or claim is given
upon the thing, then the Admi-
ralty enforces it by a proceeding
in rem, and indeed is the only
Court competent to enforce it.
A maritime lien is the foundation
of the proceeding in rem, a pro-
cess to make perfect a right
inoohate from the moment the
lien attaches; and whilst it
must be admitted that where
such a lien exists, a proceeding
in rem may be had, it will be
found to be equally true, that in
all cases where a proceeding in
rem is the proper course, there
a maritime lien exists, which
gives a privilege or claim upon

the thing to be carried into effect
by legal process. This claim or
privilege travels with the thing,
into whatever possession it may
come. It is incohate from the
moment the claim or privilege
attaches, and when carried into
effect by legal process, by a pro-
ceeding in rem, relates back to
the period when it first attached.
This simple rule, which, in our
opinion, must govern this case,
and which is deduced from the
civil law, cannot be better illus-
trated than by reference to the
circumstances of The Aline (1 W.
Rob. 1S4), referred to in the
argument, and decided in con-
formity with this rule, though
apparently upon other grounds.
In that case, there was a bot-
tomry bond before and after the
collision, and the Court held,
that the claim for damage in a
proceeding in rem must be pre-
ferred to the first bondholder,
but was not entitled against the
second bondholder to the in-
creased value of the vessel by
reason of repairs effected at his
cost. The interest of the first
bondholder taking effect from
the period when the lien at-
tached, he was, so to speak, a
part owner in interest at the date
of the collision, and the ship in
which he and others were inter-
ested was liable to its value at
that date for the injury done,
without reference to his claim.
So by the collision the interest
of the claimant attached, and
dating from that event, the ship
in which he was interested
having been repaired, was put
in bottomry by the master acting

FOE LOWER CANADA.

277

for all parties, and he would be
bound by that transaction.

This rule, which is simple and
intelligible, is, in our opinion,
applicable to all cases. It is not
becessary to say that the lien is
indelible, and may not be lost by
negligence or delay when the
rights of third parties may be
compromised ; but where reason-
able diligence is used, and the
proceedings are had in good faith,
the lien may be enforced, into

whosesoever possession the thing
may come.

Sir John Jervis, Lord Chief
Justice of the Common Fleas, in
delivering the judgment of the
Judicial Committee of the Privy
Council in Harmer v. Bell (The
Bold Buocieugh), on the 24th
April, 1862, 7 Moore's P. C. Re-
ports, 284-5.

See also opinion of Dr. Lush-
ington in The Bold Buccleugh, 3
W. Rob. 220.

Herotna.

<^mm

278

CASES IN THE VICE-ADMIRALTY COURT

Br-TowN.

iiOth March, 1850.

BY-TOWN— Humphrey.

In a cause of collision between two steam vessels, the Court, assisted
by a captain in the Royal Navy, pronounced for damages and costs,
holding that the one which crossed the course the other was to
blame.

Judgment. — Hon. Henri/ Black.

This is a case of collision. The action is brought by
the owner of the steamer John Munn, against the steamer
By-Town, for damage done to the John Munn by the
By-Town, in the night of the twenty-first of June last,
while the former was pursuing her ordinary course to
Quebec, and the latter was proceeding upwards towards
Nicolet. "When nearly abreast of the river Champlain,
the John Munn being in the usual channel and running
down the stream, the By-Town, jibout an hour after mid-
night, crossed the river taking a course in a diagonal
direction towards the north shore, and in so doing came
across the course of the John Munn, and struck her on
the starboard side doing the damage complained of,
which is considerable. Captain Boxer, R. N. C. B., who
has attended the Court as an assessor, having heai'd the
whole of the arguments of the counsel and read the
evidence, has given in writing an opinion to the following
effect.

" I am decidedly of opinion that the case is clearly
made out against the By-Town ; and in coming to this
conclusion I am particularly guided by the statements of

FOR LOWER CANADA.

279

the witnesses examined for that vessel, which in my
opinion clearly show, that if proper care had been taken
by the master of the By-Town, no collision would have
taken place. The pilot of the By-Town says, he expected
to meet the John Munn, and that when he saw her she
was about three miles off; that he then altered his course
to the southward, steering diagonally towards the John
Munn. Now, as there was no necessity for doing so, the
By-Town being evidently on the wrong side and able
with safety to keep her course straight up the river — at
least until she had passed the John Munn — or to stop
her engine when she neared that vessel, so as to allow
the John Munn to pass her — the pilot of the By-Town
would have acted with prudence if he had adopted one or
the other of these courses, and would have thereby
avoided the collision, as the John Munn was steering
straight down the river. It is also proved by one of the
seamen of the By- Town, that her pilot was asleep imme-
diately or a she rt time before the collision ; and it is
proved by the fireman of the By- Town that the engineer
was in bed and he believes asleep, when the pilot called
out " stop her." It was the duty of the master of the
By-Town in so narrow and dangerous a channel, and
while expecting to meet the John Munn, a steamer of
great speed and size, to have been at his post, and to
have seen that both the pilot and engineer were at theirs,
and ready to act as circumstances might require for the
mutual safety of the vessels, which he evidently neglected.
He might also have hauled to the northward, and could
have done so with safety before he saw the John Munn,
and the vessels would then, no doubt, have passed each
other safely on the proper sides. It is t /ident also that
the By-Town did not display the lights requirefl by the
Trinity House regulations."

With so decided an opinion from such undoubted

Bt-Towk.

I;';

I il

CASKS IN THE VICE -ADMIRALTY COURT

authority as Captain Boxer, the Court, if it entertained
any doubt, which it does not, could not hesitate in pro-
nouncing against the By-Town (a). .

Stuart and Vannovous, for the John Munn.
Holt and Irvitie, for the By-Town.

(a) An allegation exceptive to
the testimony of one of the wit-
nesses in the cause pleaded,
'* That the witness doth not he-
licTe in the being of a Ood, and
a future state of rewards and

punishments; and as professing
such principles is commonly ac-
counted and ttikcn to be b}' those
who know him." His evidence
was suppressed by consent of par-
ties, on Idth March, 1850.

I il

FOB LOWER CANADA.

281

Frklay, IWi April, 1850.

ISABELLA— Dixon.

Three of the promoters shipped on a voyage from Milford to Quebec
and back to London, the eight remaining promoters shipped at Quebec
on the return voyage ; and all had signed articles accordingly. The
ship came in ballast to Quebec, and after taking in a cargo sailed
from Quebec on the return voyage, and was wrecked in the Tliver St.
Lawrence, and abandoned by the master as a total loss. Held. 1.
That the seamen who shipped at Milford were entitled to wages for
services on the outward voyage from Milford to Quebec, and one half
the period that the vessel remained at Quebec, notwithstanding that
the outward voyage was made in ballast. 2. That the seamen who
shipped at Quebec, having abandoned, were not entitled to claim
wages. 3. In cases of wreck the claim of the seamen upon the parts
saved is a claim for salvage, and the quantum regulated by the
amount which would have been due for wages.

This was an action brought for the recovery of wages
due to three of the promoters on a voyage from Milford
to Quebec, and by the eight remaining promoters for
wages on the return voyage from Quebec to London,
interrupted by the stranding and abandonment of the
vessel in the River St. Lawrence in the month of De-
cember last, a few days after her sailing from the port of
Quebec. The vessel sailed from Milford on the 17th of
September, on a voyage to Quebec, and thence back to
London, and the seamen signed articles accordingly.
She arrived at Quebec, in ballast, about the 9th of
November, and after taking in a cargo, and remaining
at the port of Quebec about fifteen days, sailed on her
return voyage on the 24th of the same month. In con-
sequence of some misunderstanding between the master
and the crew, the vessel put back to Quebec, and sailed
again on the 5th of December. On her voyage down the

Isabella.

1
I

II :■;

!' i

282 CASES IN THE VICE- ADMIRALTY COURT

IsABBLiA. St. Lawrence she was overtaken by a storm, as she was
lying oflf Cacona, at anchor, of such violence as to part
her anchors, and obUge the master to run her ashore in
Cacona Bay, where she remained until the 14th, and then
drifted away with the ice. The vessel continued to drift
until she struck on Apple Island, in the River St. Law-
rence, at which place she was moored with a hawser chain
and a tow line, under the directions of the mate. The
master and nine of the crew had left her in the jolly boat
and pinnace, while lying in Cacona Bay, and the rest of
the hands came oflf in the long-boat from Apple Island.
The vessel broke from her moorings on the 23rd of
December, knocked her bottom out, drove up inside of
Green Island, and became a complete wreck ; and some
days after she again drifted from Green Island and
grounded on Basque Island.

The objections taken to the claim of the promoters,
were, 1st. That no wages were due on the outward voyage
from Milford to Quebec, because the vessel coming in
ballast earned no freight; 2ndly. That the vessel was
wrecked in the Eiver St. Lawrence, on her return voyage,
and abandoned by the master as a total loss.

Judgment. — Hon. Henry Black.

The claim of the seamen of wages for their services on
the outward voyage from Milford to Quebec, is not, in
my opinion, aflfected by the vessel's sailing in ballast.
The vessel arriving in safety at the port of destination of
the outward voyage, wages accrued to the seamen for the
whole period of that voyage, and one-half of the period
that the vessel remained in this j)ort {a), notwithstanding
that the outward voyage was made by the ship in ballast (i).
The act of the owners in sending the ship out without a

(«) Per Holt, C. J., apud Lord
Raym. 739.

(6) The Two Catherines, 2 Ma-
son 's Rep. 328.

FOR LOWER CANADA.

2b3

cargo, or in ballast, cannot affect the right of the seamen
to remuneration for their services, under the contract of
hiring. The services of the seamen entitled them to
their wages for that portion of the voyage which they had
completed. Quebec was to the ship a port of destination,
which in this respect is the same as a port of delivery (c).
The intermediate period between the arrival and de-
parture on her voyage homeward, is apportioned by equal
moieties, the one moiety of this time appertaining to the
outward, and the other to the homeward voyage (d). The
right of the seamen to the wages on the outward voyage
could only be divested by some act of misconduct on
their part, whereby they would, by law, incur a forfeiture
of them, and none such is alleged or appears. Two
English cases in the Common Law Courts (e) seem at
first sight to militate against the claim of the promoters ;
but upon a close examination of these cases, it will be
found that the Courts felt themselves bound, by the
express terras of the agreements, to say that there was
but one voyage ; whereas the voyage in the present case,
consisted of two parts, the outward and the homeward
voyage ; and no special agreement appears to consolidate
them(/).

Upon the second objection, it is to be observed that
the claim of the promoters is not for salvage, but for
wages, and the question arises as to the effect of the
abandonment of the ship by the master and crew, upon
the claim, on the part of the crew, for wages accruing on
the outward voyage. The storm which occasioned the
wreck, appeal's to have been a very violent one, and there

iBiBELLA.

Raym. 1247 ; 12 Mod. 409, 442 ;
1 Lord Raym. 639.

(d) Holt, C. J., 12 Mod. 108 ;
Hooper v. Perley, 1 1 Mass. llcp.
545 ; 1 Lord Ilaym, 739 ; Viner,

(e) Hernaman v. Bawden, 3
Burr. 1844 ; Appleby v. Dods, 8
East, 300.

(/) The Juliana, 2 Dodson,
504.

■«■

284
Irabella.

CASES IN TIIK VICE -ADMIRALTY COURT

is nothing to shew that all proper measures were not
taken for the safety of the vessel, when the accident
happened. I have it not in my power to form a judgment
upon this point, from the evidence in the cause, nor does
it seem necessary that I should, as it lay exclusively with
the master to leave the vessel or not, as in his judgment
seemed best. The promoters do not seem to have been
guilty of any of the acts of misconduct which the law
punishes by the forfeiture of wages ; and the abandon-
ment of the ship by the master had not, I think, the effect
of divesting the mariners of their lien upon the ship, and
whatever remained of the ship for their wages. The
decision of Mr. Justice Story, in the case of the Two
Catherines (</), goes a great way to settle the present case.
In that case, the ship sailed from Newport to Gibraltar,
discharged the cargo there, proceeded to Ivica, in ballast,
and thence with a cargo homeward to Providence. She
was wrecked in the Narragansett Bay, and by great exer-
tions of her master and crew, considerable portions of the
ship and cargo wer^ saved. The seamen claimed wages
from Gibraltar to Ivica (the wages to Gibraltar having
been paid), and from Ivica to Providence, asserting a
right to wages, and if that could not be sustained,
claiming a right to salvage equivalent to wages. The
claim was resisted by an Insurance Company, to whom
the things saved had been abandoned as for a total loss.
The distinguished jurist before whom the case was argued,
awarded the amount claimed on the voyage from Gibraltar
to Ivica, as wages, and further as salvage, the wages of
the seamen for the homeward voyage. In the case of the
Neptune (h), too, the wages awarded by Lord Stowell,
were wages which accrued on the voyage in which that
vessel was wrecked, and were ordered to be paid out of
the proceeds of the materials saved, so far as the frag-

j!,l

{g) 2 Mason's Rep. 319.

(A) 1 Haggard's Rep. 227.

FOn LOWKB CANADA.

a85

merits would form a fund, though there was no freight
earned by tlie owners. There is, however, this difference
between the two cases of the Neptune and the Two
Catherines, and the present case, that in the former two
cases, the materials of the ships were saved by the exer-
tions of the crew. In this case, nine of the crew came
off with the master in the jolly-boat and pinnace, and of
the twelve who remained with the mate, nine appear to
have refused to obey his lawful authority and orders.
The services of the remaining three, consisted only in
the mooring of the ship in as convenient a place as might
be, for safety during the winter, and in assistiuf» the mate
and people employed by him from the shore, in set uring
the ship's stores, sails and running rigging, having then
abandoned her. I do not, however, think that the differ-
ence between the two cases referred to, and the present
one, is uiaterial. As has already been said, the cliii.a is
for the wages on the outward voyage, — not for salvage, or
for wages as salvage, on the homeward voyage. Their
claim would be postponed to any claim for salvage, but is
a strict legal right, accompanied by lien, and cannot be
divested but by some act producing forfeiture. The
different nature of the claim for wages on the voyage
during which the wreck occurs, from the claim for wages
on the previous voyage, is very distinctly put by Baron
Locre («). The article of the Marine Ordinance of
Louis XIV., giving to mariners a lien on the materials
saved by them from the wreck (A), would seem at first to
confer the right only upon the seamen who actually did
save the materials. But Boulay Paty (/), after examining
and weighing the opinions of the different writers on this
head(/M), concludes with shewing that the seamen who

lOABKLLA.

(i). Esprit du Code de Com-
merce, Liv. 2, Tit. 5, art. 258,
tom. 2, p. 113.

(k) Ordonmince de la Marine,
Tit. 4, art. 3.

(/) Couis de Droit Commercial
Maritime, Tit. 5, sec. 8, torn, 2,
p. 221, et seq.

(/») Valin, Delvincourt, and
Boucher.

■II
I

S86 CASES IN THE VICE-ADMIBAI.TY COURT

Isabella. have not been concerned in saving the materials, have a
claim uptn them for wages, to be postponed, however, to
the claim of those who have assisted in saving the wreck
or materials, which latter seem to be treated as salvors.
I accordingly decree to John E. Cooke, Gilbert King, and
Henry Scowen the amount of their wages upon the
voyage from Milford to Quebec, and for one moiety of
the time that the /essel lay at Quebec, reserving to Gil-
bert King such other recourse as he may be entitled to,
out of the remains of the ship, when the proceeds come
to be distributed by the Court.

The case of the remaining promoters, Charles Scott,
John Smith, Job Swim, George Williams, Thomas Huzzy,
Evan Lewis, Thomas James, and William Williams,
stands upon an entirely different footing frond that of
their companions. Their claim is for the few days which
elapsed between the time of their shipping at Quebec,
and the stranding of the vessel and the abandonment of
her by the master and crew. Notwithstanding the great
principle, that freight is the mother of wages, and the
safety of the ship the mother of freight ; and that it
would therefore seem, that in all cases where the freight
was lost by shipwreck, the mariners could have no claim
for wages ; yet all the ancient Sea Laws (w), as well as
the Ordinance of Philip the Second of Spain, in the year
1513 (o), and the mprine Ordinance of Louis XIV. (/)),
give to the sailors wages out of the proceeds of what they
save of the materials of the ship. There were no English
decisions upon this point down to the year 1824, when in
the case of the Neptune (q), Lord Stowell allowed to the
seamen by whose exertions part of the vessel had been
saved, the payment of their wages as far as the fragments

(w) Laws of Wisbiiy, art. 1 5 ;
Lawsof Olcron, art. 3 ; and Laws
of the Hanse Towns, art. 4 4.

(o) Tit. Average, art. 12.

(^>) Liv. 3, tit. 4. ; Dos Loyers
des Matelots, art. 9.

(y) 1 Haggard's Rep. 227.

FOR LOWER CANADA.

of the materials would form a fund, although there was
no freight earned by the owners. The wages so allowed
are evidently in the nature of salvage, and a reward
therefore for the meritorious services of the seamen in
saving the wreck or fragments of the wreck. If another
rule were adopted the seamen would have no motive for
exerting themselves in saving anj' portion of the wreck,
and would be induced, upon the occurrence of a ris major
depriving them of wages, to give up all care of the ship
and cargo at once (r). The rule adopted by Lord Stowell
from the ancient maritime law of Europe, serves at once
to protect the wreck from this danger, and at the same
time by confining the salvage to the amount of the wages,
holds forth no temptation to the seamen to expose the
vessel to perils with a view of deriving from them high
salvage, it being more the interest of the seaman to receive
his wages in the ordinary tranquil course of navigation,
than as a reward for services which must be generally
laborious and perilous. But, in the case before the Court,
it is not possible for me to say, that the wreck of the ship
was saved by the exertions of these individuals with the
master and rest of the crew (s). It is quite clear that the
vessel having been wrecked in the course of the home-
ward voyage without earning freight, no wages were
due (t). The claim of these parties could only be for
wages as salvage on the wreck or fragments of the wreck
saved by their exertions ; but they having abandoned the
wreck cannot be considered as salvors, and I must there-

287

Isabella.

((•) Mongalvy& Germain, Ana-
lyse Raisonn6e du Code Je Com-
merce, torn. 1, p. 386.

(») See an elaborate opinion on
this subject by the accomplished
jurist who now presides over the
District Court of the United
States, for the Distric*^ of Maine,

Judge Ware, in the case of The
Dawn — Davies. Rep. p. 123.

{t) Unless the seaman produce
a certificate from the master, as
required by the Merchant Sea-
men's Act, 7 & 8 Vict. 0. 112, s.
17.

CASES IN THE VICE -ADMIRALTY COURT

fore dismiss their claim, but without condemning them in

costs (//).

Charles Alleyn and A. Campbell, for the promoters.
John J. C. Pentland, for the owners and master.

!l I
I

(m) Since the above decision
was given a revision of the entire
law of the mercantile marine has
been effected, and wages are no
longer to be dependent on the earn-
ing of freight. The Merchant
Shipping Act (17 & 18 Vict. c.
104) contains the following pro-
vision on this head : —

" No right to wages shall be
dependent on the earning of
freight ; and every seaman and
apprentice who would be entitled

to demand and recover any wages
if the ship in which he has served
had earned freight, shall, subject
to all other rules of law and con-
ditions applicable to the case, be
entitled to claim and recover
the same, notwithstanding that
freight has not been earned ; but
in cases of wreck or loss of the
ship, proof that he has not ex-
erted himself to the utmost to
save the ship, cargo, and stores,
shall bar his claim."— Sec. 183.

FOR LOWER CANADA.

289

Friday, ith November, 1853.
CRESCENT— Tatk.

ROWLAND HILL— Ryan.

Steamer making a short and unusual turn, and crossings the course Cbesoknt.
,of another steamer coming in the same direction, contrary to the Rowland Hill.
usual practice and custom of the river, and the rules of good seaman- '

ship, for the purpose of being earlier at her wharf, condemned in
damages for a collision.

These suits were brought, the one by the owner of the
steamboat Rowland Hill, against the steamboat Crescent,
and the other by the owner of the latter vessel against
the Rowland Hill, for collision, on the 24th of July, 1853,
when opposite the City of Quebec, on their downward
trip from Montreal.

For the Rowland Hill it was alleged, that on that day,
off Quebec, the Rowland Hill and the Crescent were
coming down the St. Lawrence, during the ebb tide, and
passing before the city of Quebec, previously to making
the usual turn in order to come up against the tide to
their respective wharves, the Rowland Hill being at that
time about a hundred yards a-head of the Crescent. That
the Rowland Hill, in order to come up to her wharf took
a wide turn towards the mouth of the River St. Charles
(where the steamboats coming to Quebec with the ebb
tide usually turn), and, pursuing the safest course to avoid
a collision with the shipping at anchor in the harbour,
crossing and turning below a ship at anchor near the
mouth of the river St. Charles, and below two other ships,
wliich anchored at some distance from each other, and
above the first-mentioned ship ; and was coming up tlie
river against the tide towards her whai'f on the city side

200

CASES IN THE VICE -ADMIRALTY COURT

Cbesoent.
Rowland Hii.i..

I':

of the St. Lawrence. That the Crescent, coining down
astern of the Eowland Hill, at the distance of about one
hundred yards — being desirous, as promoter supposed, of
coming in before the Rowland Hill — made a very short
and unusual turn, crossing above the three ships before
mentioned, far above where steamboats coming into
Quebec, during the ebb tide, usually turn, and far above
the point at which she ought to have turned — in conse-
quence of the position of the vessels then lying at anchor
in the stream — and bringing herself, by the shortness of
the turn so near tlie wharf as to be unable to bring her
stem up the river without backing out into the river.
That the captain of the Rowland Hill, after having
turned, and while coming up the river to her wharf— per-
ceiving the Crescent attempting to make the turn above
described, and fearing a collision — caused the engines of
the Rowland Hill to be eased and then stopped, but could
not cause his boat to back water without running foul of
one of the three vessels above mentioned. That when
the two steamboats came nearly opposite one of the
wharves in the harbour of Quebec, commonly known as
Gibb's wharf — the Crescent then going at her full speed
— through the mismanagement, want of skill, and negli-
gence of the persons on board and in charge of her,
owing also to the fault they committed in turning, and to
their not stopping nor moderating their speed, and also
to the mismanagement of their helm at the moment of
the approaching collision, ran foul of the Rowland Hill,
the stern of the Crescent abaft the gangway, on her star-
board side, coming into contact with the stem of the
Rowland Hill, and carrying away the same. That the
collision was occasioned by the inattention, mismanage-
ment, and want of skill of the persons on board of the
Crescent.

On the part of the Crescent it was pleaded, that at
about the hour of seven in the morning, the Crescent was

iti4

FOR LOWER CANADA.

891

on her downward trip from Montreal, the tide then being
ebb, and the Bowland Hill about one hundred yards in
front of the Crescent on the south side. That when the
Rowland Hill was in front of St. Andrew's wharf, in the
Lower Town of Quebec, she suddenly turned and crossed
in front of the Crescent ; which vessel could not within
so short a time, and coming down with the tide — the
space between the two vessels being so short — stop her
engines ; for, had she done so, she would have been cut
in two by the Rowland Hill. That the Rowland Hill
crossed the course of the Crescent, and made her sweep
to come to the wharf at Quebec on the occasion pro-
pounded, sooner than is usual for steamboats to do when
coming down to Quebec. That in consequence of so
crossing, the Rowland Hill ran stem on against the
Crescent, and came into collision with her, striking her
within about fifteen feet of her stern, doing much damage
thereto. That before coming into collision, the Rowland
Hill was hailed from the Crescent, and requested to ease
her engines, and back water, and that had she done so in
time the collision would have been avoided. That from
the time of the Rowland Hill first showing her intention
to cross the course of the Crescent to the time of the
collision — as well as from the vessels at anchor — it was
impossible for the Crescent to stop her course. That
the Crescent was preserving a direct course, and that the
collision was wholly caused by the Rowland Hill crossing
tlie course of the Crescent ; and from the carelessness,
unseamanship, and negligence of the crew of the Rowland
Hill. That by the collision damage was done to tlie
Crescent to the extent of 100/. currency ; and that the
master and crew well performed their duty ; and that the
collision was not caused by their carelessness or want of
skill.

Crkscent.
Rowland HiLi.

V 2

292

Orbsoent.
RowlahdHiIiL.

CASE8 IN THE VKJE-ADMIBALTY COURT

• '■ ; ." ■■ ■ ■ - , ■ ,; / : «

Judgment.

The Court. — The witnesses on the side of the
Crescent are, the master, mate, pilot, wheelsman, and
purser, with one person, a stevedore, who was ashore :
and the testimony of the mate and wheelsman is decidedly
against their own vessel. On the other side we have the
master, two pilots, and three passengers, not concerned
in the management of the vessel, and their evidence is
confirmed by the master of the Alliance, who saw the
occurrence from his own steam-vessel lying at Hunt's
wharf; by three persons, who saw it while standing on
Barras's wharf at Point Levi ; and three others, who saw
it from the deck of a schooner at Oliver's wharf : all six
being either persons connected with steamboats or sea-
faring men. From this evidence it appears that i\e two
steamers were coming from Montreal to Quebec, on the
morning of the 21th of July, 1852; when opposite the
city of Quebec the Rowland Hill was about 100 yards
a-head of, or lower down the river than the Crescent,
and was nearer the Point Levi side than the last-named
vessel ; the tide was ebbing, and the Rowland Hill took
the course usual on such occasions, and passed down
below the lowermost wharf at the mouth of the St. Charles,
when she turned, to stem the tide, and come to the wharf
at which she was to land her passengers. The Crescent
did not descend so low, but made a short and unusual
turn, with the intention of passing across the course of
the Rowland Hill and a-head of her, after she had turned
and was coming up against the tide, so that the Crescent
might reach her wharf before the Rowland Hill should
reach hers. The people on board of the Rowland Hill,
seeing the danger of a collision, stopped her engine, and
would probably have reversed it, bad they not been afraid
of drifting under the bow of a vessel at anchor in the

FOR LOWER CANADA.

203

vicinity : the Crescent did not stop, but kept her course Crescknt.

towards Quebec, when her starboard quarter came in ^ ."

contact with the stem of the Rowland Hill, and the
damage complained of was done. Under these circum-
stances the Court is called upon to pronounce which of
the two vessels, if either. Was in fault, and I think it can
admit of no doubt that the collision resulted from a rash
and hazardous attempt on the part of those on board of
the Crescent to cross the course of the Rowland Hill,
contrary to the usual practice and custom of the river and
to the rules of good seamanship, for the purpose of being
earliest at her wharf. Manoeuvres of this dangerous kind,
which might in a crowded port like ours result in the
most serious loss of property and of life, ought to be dis-
countenanced. At the same time I am happy to bear
testimony to the great prudence of the commanders of
the steamboats on our river, which has made such acci-
dents of rare occurrence ; and even on this occasion the
objectionable manoeuvre appears to have proceeded from
a spirit of eager competition and from miscalculation, and
not from any wilful attempt to injure the competing
vessel. The Court therefore dismisses the action of the
owner of the Crescent against the Rowland Hill, with
costs, and maintains that of the owner of the Rowland
Hill against the Crescent, also with costs ; and refers
the damages to the registrar and merchants, to ascertain
the amount in the usual manner.

Sol.-Gen. Boss, for the Rowland Hill.
Alkyn, for the Crescent.

894

CASES IN THE VICE-ADMIRALTY COURT

, 1

! I

Friday, Ith Nomnbcr, 1853,
SARAH ANN— HocKER.

Sarau Ann. Where the collision was the effect of mere accident, or that over-
riding necessity which the law designates hy the term vis major, and
without any negligence or fault in any one, the owners of the ship
injured must hear their own loss.

This was a cause of collisioD, promoted on behalf of the
owner of the William against the Sarah Ann, for damage
sustained in the harbour of Quebec, on the 11th of
October last.

The libel given in and admitted on behalf of the pro-
moter of the suit, set forth : —

That on the 11th of October last, the ship or vessel
the William, wliereof one John Till then was master, was
lying at anchor in the river St. Lawrence, opposite to the
city of Quebec, within the ebb and flow of the tide, having
on board a full cargo of provisions, with which she was
about to proceed to sea for a port in Newfoundland.
That about three o'clock in the afternoon of that day, the
ship or vessel the Sarah Ann came to anchor at flood
tide, a-head and to the eastward of the William. That
the Sarah Ann is a vessel of the burthen of about 500
tons, and had then on board a full cargo of merchandise,
and was deep in the water. That from the time when
the Sarah Ann so came to anchor to the eastward of the
WilUam, until the hour of twelve at noon on the following
day, both vessels, at the different changes of the tide,
sheered in the usual way clear of each other. That
between the said hour of twelve at noon and the hour of

FOH LOWCH CANADA.

2J)5

one in the afternoon of the last-mentioned day, it being Sauah Ann.
then the commencement of the flood tide, the William was
riding at anchor in the same plaoe where she had first
cast anchor, with two anchors out, the one with sixty,
and the other with forty-five fathoms of chain, having
lately before turned with the tide, and then riding with
her head to the eastward. That imm' diately afterwards
the Sarah Ann was seen turning with the tide, and in
doing so she broke her sheer, and began to drift towards
the William, nearly broadside on, and being unable to hold
her ground, dragged towards the William, and ran foul of
her, the larboard bow of the Sarah Ann striking the star-
board bow of the William. That while the Sarah Ann
was thus drifting and dragging towards the William, the
people of the latter vessel hailed the Sarah Ann, telling
them to keep her clear of the William, to which they
received no intelligible answer. That the William, on
observing the Sarah Ann coming upon her, put her helm
hard a starboard, causing her head to turn to port and
towards the town, as much as her two anchors and
chains would permit, in order to avoid a collision.
That the William is of the burthen by admeasurement of
159 tons or thereabouts, and was navigated by a com-
petent master and crew. That at and before the time she
was so struck by the Sarah Ann, the William was tight,
staunch, and in good condition. That at and before the
said collision, the Sarah Ann was riding with a single
anchor, with about forty fathoms of chain out in twelve
fathoms of water, and that the wind was then blowing,
and had been blowing from the previous day, from the
westward, the Sarah Ann being to leeward of the William ;
and that the collision occurred solely through the inatten-
tion and want of prudence and skill of the persons on
board of the Sarah Ann; and not by or through the
inattention or want of prudence or skill of the persons
on board of the William. That by the assistance and

1 .

![r-

206 CASES IN THK VICE-ADMHIALTY COURT

Sabau Ank. exertions of the persons on board the William, the two
' vessels were at last separated, and the Sarah Ann then

sheered clear of the William, but the Sarah Ann was so
negligently and unskilfully managed that she would again
have run foul of the William, had not the persons on
board of the Sarah Ann, at the urgent request of the
master of the William, hoisted their inain-top-mast-stay-
sail, and by this means escaped a second collision ; and
that had the Sarah Ann, when she began to drag towards
the William, adopted the like or similar means, and let
go her second anchor, no collision would have at all
occurred. That by the collision the Sarah Ann carried
away the main-sail of the William from the night-heads
to the fore -rigging, and about twenty feet of bulwark, and
also her channel guard, damaged and started her cover-
ing boards, split and damaged four stanchions, head-
rails and knees, and carried away her cat-head, block, and
fall, and she was otherwise considerably damaged.

The responsive plea or allegation, on the part of the
Sarah Ann, denied that the accident was occasioned by
the mismanagement of those on board of her : on the
contrary it was alleged : —

That about fifteen minutes after the hour of two in the
afternoon of the 11th of October last, the Sarah Ann
came to anchor opposite the city of Quebec, a-head and
to the eastward of the William, and at a sufficient dis-
tance from the William to prevent accidents, and gave to
the William a fair berth. That the Sarah Ann was a
vessel of 377 tons, and had on board a full cargo, and
was then ready for sea, merely requiring a trifling repair
to one of her masts, which had since been made. That
from the time when the Sarah Ann came to anchor to
the eastward of the W^illiam until the hour of twelve of
the following day, both vessels, at the diflferent changes
of the tide, sheered in the usual way clear of each other,

FOR LOWER CANADA.

207

and never approached each other nearer than two cahlcs' Sarah An».

length, and so sheered clear of each other three several

times. That in the afternoon of the Uth, the wind

sprang up from the south-west, and increased in violence,

until during the night of the 11th and 12th it blew quite

u gale of Avind, and several ships in the harbour were

driven from their moorings. That the William on the

11th, in the day, was riding at a single anchor, and had

been so riding at a single anchor "rom the time she first

came to anchor there, namely, for several days. That

the wind continiied unabated from the south-west during

the whole day of the 12th, so much so, that vessels left

their mooring places on their intended voyages without

any canvass set, and while the tide was running flood,

and went round Point Levi in that way. That the

William, during the night of the 11th and 12th, and the

morning of the 12th, propelled by the wind from the

south-west, dragged her moorings, and came nearer to the

Sarah Ann ; and that the persons in charge of the William,

perceiving that she was dragging her anchor, let go a second

anchor, but not until her position towai'ds the Sarah

Ann was materially changed. That from the evening of

the 11th, until the time of the collision, the wind blew

from the south-west too violently to admit of any vessel

dragging her moorings against the wind ; and in fact the

Sarah Ann did not, at or about the time of the collision,

stream to her anchor, from the violence of the wind being

stronger than the tide ; and that if the Sarah Ann had

dragged her moorings at all, it must have been during

the ebb tide, when both wind and tide were down the

river : but if she had so dragged her moorings she would

have got further away from the William, not nearer.

That during all the time, the Sarah Ann had on board

of her a competent crew to navigate her, and had such

crew at the time of the collision. That on the contrary,

the William was without a crew, and at the time of the

■'A

208

CASES IN THE VICE -ADMIRALTY COURT

Saiuii Arm.

'1 i

collision there was on board of the William only one man,
namely, the pilot. That one man alone was insufficient
to do any thing on board of the William to avoid the col-
lision ; and that if there had been a sufficient number on
board to haul in her chain, or to pay out chain, either
would have prevented the collision. That it is the cus-
tom of the port of Quebec for vessels to ride at one
anchor, and that all the vessels in sight of the William
and of the Sarah Ann, on the 11th and 12th of October,
were riding at one anchor ; and that the William was not
at any time moored to two anchors, but after drifting and
dragging her anchor she let go a second anchor, and was
riding at two anchors. That the Sarah Ann never dragged
her anchor at all, and that the bearings at the time of the
collision showed that she was at the very same place she
anchored at on the 1 Ith. That by the exertions of the
persons on board of the Sarah Ann the two vessels were
separated ; and that at that time there were on board of
the William, only the master and one or two other
persons. That when somebody on board of the William
requested the persons on board the Sarah Ann to hoist
their top-stay-sail, the persons on board of the Sarah
Ann were actually engaged in hoisting it, and that they
did not do so at the suggestion of any body on board of
the William, but of their own accord. That the collision
in question did not occur by or through the inattention
und want of prudence and skill of the persons on board of
the Sarah Ann, but solely from the William dragging her
moorings before the wind and tide ; and from there being
no competent crew in and on board of the William to
navigate her, and to take charge of her in port ; and that
the collision occurred from the William coming down
upon the Sarah Ann.

There were examined on behalf of the owner of the
William, five witnesses, viz: — John Till, the former
master, Charles Pitch, the new master, Damien Boulanger,

I' '
ill I

FOR LOWER OANAOA.

200

pilot (a), and James Ryley, and George McCullocb, Sauu a«r.
seamen.

On the other side seven witnesses were produced and
ex imined, viz : — Thomas James Hooker, the master of
the Sarah Ann, Jacques Plante, her pilot {b), Thomas
Flaven, second mate, James Coastes, Clement Leblanc,
and Joseph Gundy, seamen, and Christian Gesloff, the
carpenter of the Helen, who happened to be employed on
board the Sarah Ann, before and at the time of the
collision.

The case was argued on the 38th of October, and
remained under consideration until this day, when the
Court pronounced the following judgment : —

Judgment. — Hon. Henry Black.

The facts as gathered from the rather voluminous
depositions in this cause are as follows : — On the 1st of
October last, the William, a brig of 140 tons, came to
anchor in the harbour of Quebec, being then laden with
a full cargo and ready for sea ; and being detained in con*
sequence of a change of masters, she lay riding at single
anchor until the 11th of the same month. About three
o'clock in the afternoon of that day, it being then flood
tide, and wind fresh from the westward, the Sarah Ann,
a vessel of 377 tons, also fully laden, and ready for sea,
with the exception of getting up a new topmast, came
to anchor, about two cables' length to the eastward of
the William, and lay there also at single anchor : and it
is admitted on both sides, that in the position so taken
by her, the Sarah Ann gave the William a fair berth ;
and that the two vessels at the three next succeeding
changes of the tide swung in the usual manner clear of
each other. The wind blew hard from the south-west,

(a) (&) No allegation exoeptive
to the testimony of the pilot was
given on either side, and publi-

cation of the evidence was decreed
by consent of parties.

5'!:

300 CASES IN THE VICE-ADMIRALTY COURT

Sarah A»n. from the time the Sarah Aim came to anchor, and
~^ increased during the night between the 11th and 12th,

blowing very heavily in violent squalls. The pilot of the
William states that during that night, and between twelve
and thirteen hours before the collision, he let go a second
anchor with about forty-five fathoms of cable, the first an-
chor having sixty fathoms, and that his motive for so doing
was, " because it commenced blowing hard," or in other
words because the gale from the south-west had increased.
He states that the William did not drag her anchor, but
the pilot of the Sarah Ann, and several of the other wit-
nesses sa}' that she did, and that she approached nearer
to the vessel last-named, as she must have done if she
drifted at all; and they are equally positive that the
Sarah Ann did not drift ; indeed, it was most improbable
that she should drift upwards against the wind, and if she
had drifted downwards or to leeward, she would not have
lessened but increased her distance from the William.
At flood tide, between one and two in the afternoon of
the 12th, the Sarah Ann, in swinging round with the
tide upon her anchor, came into collision with the William,
the larboard bow of the Sarah Ann striking the starboard
bow of the William, and occasioning the damage com-
plained of. At this time there was no person on board
the William, except the Pilot, Damien Boulanger, the
former master having gone ashore with the two seamen who
composed the crew, und the new master not having gone
on board. Now, in order to support the present action,
it was necessary distinctly to prove that the collision
arose from the fault of the persons on board of the Sarah
Ann only ; or from the fault of the persons on board that
vessel, and of those on board the William, in which latter
case the Court would be called upon to apportion the
damages between the parties according to maritime law,
as administered in the Court of Admiralty. In the
former case the Sarah Ann alone would be liable for the

FOR LOWER CANADA.

301

whole ; if neither vessel, or tht> suffering vessel alone Sabah Ann.
were in fault, the loss would remain where it fell. The
view taken by the Court is, that it has not been proved
that there was any fault on the part of either vessel, but
that the collision was the effect of mere accident, or that
over-riding necessity which the law designates by the
term vis major. Both vessels were originally properly
anchored, and had room enough to swing clear ; there is,
therefore, no ground of complaint on thai head. It seems
most improbable that the Sarah Ann should drift upwards
with the tide, while the wind was in the direction and of
the strength described by the witnesses on both sides,
even if she did break her sheer in swinging; and the
master of that vessel states positively that he took bear-
ings by compass before and after the accident, and found
her position to be precisely the same ; and this statement
is corroborated by all the witnesses on that side. On the
other hand, it appears by no means improbable that the
William should, by force of the wind and ebb tide, have
drifted nearer to the Sarah Ann, and her pilot's letting
go another anchor during the night preceding the accident
shows that he at least apprehended the probability of her
so doing; for, as it is well-known to be inconvenient to
lie in a tide-way with two anchors down, it is not likely
the pilot would have let go the second unless he felt that
the William w- dragging the first, or likely from cir-
cumstances to do so. And though the witnesses on that
side say that the William did not drag her anchor, yet
those on the other side declare positively that they saw
her drifting towards the Sarah Ann. It lay with the
William to prove fault on the part of the Sarah Ann, and
as I am of opinion that this proof has not been made, but
that the evidence goes to show that neither vessel was in
fault, the action must be dismissed. It is to be regretted
that, in a matter involving so small an amount of damages,
the complaining party should have thought proper to

(115

•I

■ ■■'?

308

CASES IN THE VICE-ADMraALTY COURT

Sarah Amm. institute proceedings of a nature to occasion heavy costs,
from which, as he has failed to make out his case, the
Court cannot relieve him.

Sol. -Gen. Ross, for the William.

Stuart and Vannovmis, for the Sarah Ann.

i I

i '!

■l'^' ;.,<-:.;>•■■

FOR LOWER CANADA.

303

Tuesday, 17th January, 1854.

ROSLIN CASTLE— Saddler.

GLENCAIRN— Crawford.

When two sailing vessels are upon opposite tacks, and to all ap- BoslinCastlb.
pearanoe will come in contact at their angle of meeting, it is usual for Glknoairn.
the ship upon the port tack to give way for that on the starboard tack. "^ -'

These were causes promoted by the owners of the ship
Glencairn against the barque Roslin Castle, and by the
owners of the Roslin Castle against the Glencairn, each
vessel proceeding against the other, for a considerable
damage by a collision which took place on the 6th
October last, while both vessels were iu the North
Atlantic Ocean, on their voyage from Great Britain to
Quebec, the jib-boom of the Glencairn going through the
foresail of the Roslin Castle, and being carried away, and
the two vessels coming together, with the port-bow of the
Glencairn to the starboard side of the Roslin Castle at
the mainchains.

The facts of this case are sufficiently noticed in the
following judgment of the Court:

Judgment. — Hon. Henry Black.

It appears that on the sixth of October now last, the
Glencairn, a ship of the burthen of 949 tons, with a cargo
consisting chiefly of eight hundred tons of iron ; and the
RosUn Cattle, a barque of 450 tons, but in ballast ; were
both on their voyage from Great Britain to Quebec, and
were in the North Atlantic Ocean, at a distance of some
fifty miles from the island of St. Peter, which is oflf the
coast of Newfoundland. In the course of that day they

r ^

.A""

304

CASES IN THE VICE-ADMIHALTY COURT

RosLiN Castle, liad been ill sight of each other, and both had been going

■^ - ' on the port tack, with the wind from the south-west, or

rather to the westward of that poin^ ; the Glencairn was
then to leeward, but was the faster ship. About eight
o'clock in the evening, the wind still blowing from the
same quarter, the Glencairn was put about on the star-
board tack, both vessels being on a wind, the Roslin
Castle continuing on the port tack, with the wind mode-
rate, and going at the rate of about six knots through the
water. The night was tolerably clear ; the witnesses for
the Glencairn saying that a ship of her size could be seen
from one to two miles off, but not saying how far off the
Roslin Castle was when first seen by them ; the Roslin
Castle's witnesses, however, say that the Glencairn was
not seen from the Roslin Castle until she was only from
half to a quarter of a mile from that vessel, on the lee
bow ; nor does there seem any reason to doubt that the
vessels saw each other about the same time. According
to the witnesses for the Glencairn, that ship had been
about thirteen minutes on the starboard tack, when the
Roslin Castle was seen from her ; but the witnesses for
the Roslin Castle say that when the Glencairn was first
seen from that vessel, the Glencairn had her head to the
eastward, that she had the appearance of a ship going to
the eastward, and that the look-out man of the Roslin
Castle announced her as a ship " running," her three
masts being open ; and they assert their belief that the
Glencairn had then just tacked. Both ships appear to
have been fully manned, and both appear to have shown
lights as soon as they saw each other. Whatsver may
have been the position of the Glencairn when first seen
by the Roslin Castle, it is asserted on both sides that she
immediately afterwards luffed up on the starboard tack,
and came as close to the wind as possible, her sails, in
fact, shaking before the colHsion. The Roslin Castle
continued her way on the port tack. In this manner the

FOR LOWER CANADA.

305

ships approached each other, the master of the Glencaim RosuNCASTtE.
hailing the Roslin Castle to bear up (that is, port her ^^^^^
helm), and pass to leeward (or on the port side) of the
Glencairn. The Roslin Castle's witnesses assert that
there was not room to do so, and that if it had been done
ihe Roslin Castle would have stj'uck the Glencairn end
on ; and that the Glencairn ought to have been kept clean
full, when she would (they say) have passed clear of the
Roslin Castle on the starboard side. The Glencairn's
witnesses, on the other hand, say that there was plenty of
room for the Roslin Castle to bear away, and pass clear.
However this may be, it is certain that both vessels kept
on their way and approached each other, the Glencaii-n
luffing till her sails shook, and the Roslin Castle, as she
neared the Glencairn, putting her helm down, and
bringing the vessel up to the wind. Under these circum-
stances the collision took place, the jib-boom of the Glen-
cairn going through the foresail of the Roslin Castle, and
being carried away, and the two vessels coming together
with the port bow of the Glencairn to the starboard side
of the Roslin Castle, about the main-chains. By the
collision considerable damage was done to both vessels,
for the amount of which each has proceeded against the
other in this case. The nautical rule which has long
been established, undoubtedly is, that if two sailing
vessels, both upon a wind, are so approaching each
other, the one on the starboard, and the other on the
port tack, as that there will be a danger of collision if
each continue her course, it is the duty of the vessel on
the port tack immediately to give way , and it is held that
the vessel on the port tack is to bear away so early and
eflfectually as to prevent all chance of a collision occur-
ring. The decision of this case must then depend upon
the question whether there was or was not any peculiar
circumstance which justified the Roslin Castle in not
observing this rule. The Court is therefore desirous of

^.TS

300

RosLiN Castlk.
Qlknoaihn.

r I

5 I

CASKS IN THE VICE-ADMIRAIiTY COURT

obtaining the assistance of a gentleman of the nautical
profession in determining the following questions :

1. "When the Roslin Castle and the Glencairn first
saw each other, was there, or was there not, sufficient
room and time for the Roslin Castle to have avoided all
risk of a collision by putting her helm up, and bearing
away ?

2. Was there anything in the position of the Glencairn
when first seen by the Roslin Castle, which justified the
latter vessel in not immediately putting her helm up and
bearing away; and if there was, was there, or was there not,
still sufficient time and room for the Roslin Castle to have
avoided all risk of a collision by putting her helm up, and
bearing away as soon as she saw that the Glencairn was
upon the starboard tack, and upon a wind ; and if the
Roslin Castle were justified in not putting her helm up,
and bearing away, was she also right in putting her helm
down, and luffing up as she neared the Glencairn ?

3. Supposing that the Roslin Castle was, under the
circumstances, justified in acting as she did, was the
Glencairn justified in not bearing away, but on the con-
trary, putting her helm down and luffing up as the Roslin
Castle neared her ?

4. Did the collision occur from any negligence or want
of skill, or any violation of any rule of navigation or of
good seamanship, on the part of either and which of the
vessels ; or was it the result of over-riding circumstances
over which neither vessel had any control, and for which
neither is responsible ?

In nnswer to these questions, Tiieutenant Ed. D.
Ashe, R.N., who liad attended at the hearing of the case,
as an assessor, delivered in a written opinion to the fol-
lowing efl"ect : —

" From what has been said on both sides, it appears
that the Glencairn was on the starboard tack, and that

FOR LOWKU CANADA.

307

the Roslin Castle was on tlie larboard tack, steeriii« a K^8"nCastlb.

_ (iLKNOAIllN.

course. Tliat the filenoairn, by keeping a close luff with
her sails lifting, showed that she intended to keep her
wind, as by all the laws of navigation she had a right to
do. On the other hand, the llosliu Castle, with a leading
wind, and the ship well under command, could have
avoided all collision by keeping away, and bringing the
Glencairn on the weather bow ; instead of which she
commits the lubberly act of endeavouring to cross the
bows of a vessel, when it was obviously her duty to pass
under the stern. And here I must remark, that in the
evidence given by the crew of the lloslin Castle, they
state that if the helm of that ship had been put up, she
would have run "end on" to the Glencairn. It is true,
there was a time when putting the helm up would have
made matters worse, but every sailor of the Roslin Castle
must have known that there was ample time in five
minutes, or even one?, to have avoided all chance of colli-
sion, by the Roslin Castle putting her helm up. It is,
therefore, my opinion, that the collision took place in
consequence of the Roslin Castle not paying attention to
the known laws of navigation."

(ii

The Court. — The opinion of Lieutenant Ashe being
that the Roslin Castle was solely to blame, the suit
brought by the owners of that vessel against the Glen-
cairn must be dismissed with costs ; and an interlocutory
decree entered up against the Roslin Castle, for the
damages sued for by owners of the Glencairn ; the amount
to be fl> jertained in the usual form, viz., by a reference to
the registrar and merchants.

Edw. Jones, for Glencairn.
Charles Allei/ii, for Roslin Castle.

:.S

308

Niagara.
Elizaskth.

CASES IN THE VICE-ADMIRALTY COURT

Friday, 2nd June, 1854.

NIAGARA— Taylor.
ELIZABETH— NowELL.

Collision — Course to be pursued by vessels in danger of colliding
— Look-out — Lights.

These cases originated in a collision which took place
on the 3rd of November last, between the ship Niagara,
while sailing down the river St. Lawrence, on her home-
ward voyage to Liverpool, and the barque Elizabeth, coming
up in tow of the steamer Providence, under the circum-
stances noticed in the following judgment of the Court.

Judgment. — Hon. Henry Black.

The Niagara, a vessel of about 422 tons burthen, laden
principally with grain and deals, sailed from Quebec on
her homeward voyage to Liverpool, in the afternoon of
Thursday, the 3rd of November last, in charge of a
regular branch pilot ; and at about the hour of a quarter
to seven on the same day had gone round Point Levi, and
was about breast of Indian Cove, the wind being then at
west by north, or west-north-west, blowing a moderate
breeze ; the tide being flood and the ship having all sails
set except the studding-sails, and being abuut mid-channel
or rather to the southward of it, and going down the river
at the rate of about three miles an hour. She had passed
two ships at anchor, the one on the starboard and the
other on the port side ; the one apparently lying on the
north side of the channel, and the other on the south
side of it. At the same time, the barque Elizabeth, a
vessel having between three and four hundred tons of
railroad iron on board, was coming up the river St. Law-
rence, on her outward voyage from England to Quebec,

FOR I.OWKR CANAPA.

ao«

in charge of a regular branch pilot, and in tow of the
steamer Providence, which was engaged to take her to
her intended wharf at Point Levi. The tow line was
about thirty fathoms in length ; she had all her sails
furled and her yards braced up, the wind being a-head,
and was going at the rate of about five miles an hour,
that is, two miles faster than the flood tide, which carried
her about three miles an hour. The moon was then
about three days old. At about a quarter to seven, the
Elizabeth, and the steamboat in tow of which shb was,
had also got abreast of Indian Cove. The night at the
time, seems from the evidence, to have been reasonably
clear, and sufficiently so for lights to be seen at a mode-
rate distance ; though there is some slight discrepancy on
this point, the witnesses from the Elizabeth and from the
steamer declaring that the night was very clear and star^
light, and that the moon had been visible early in the
evening, and that they could see both shores, and the
light on board the ships in the harbour and the lights of
the town : while the witnesses from the Niagara say that
it was clear to the westward, but hazy to the eastward,
and that the moon was clouded and not to be seen ; they
do not, however, pretend that lights could not be seen at
a reasonable distance, in fact, the look-out man of the
Niagara (Owen Evans) says that it was a pretty clear
night, and that he saw the steamer Providence about
twenty minutes before the collision, which forms the sub-
ject of the present controversy. It is sufficiently proved
that the Niagara had a light at her bowsprit end, " a
reflecting powerful light ; " that the steamer had two
ordinary lights, one on each paddle box, and a bright red
light forward ; and that the Elizabeth had a light in her
starboard fore rigging, about sixteen feet above the deck.
It appears that each of the three vessels was navigated
by a competent number of officers and men, and was
staunch, tight, and in good order.

NiAOARA.

Klizabktu.

»i

810

CASES IN THK VICE-ADM1UAI,TY COtJUT

Niagara.
Blizabeth.

Under these circumstances a collision took place be-
tween the Niagai'a and the Elizabeth ; the Niagara,
according to some of the witnesses, striking her cut-
water against the starboard bow of the Elizabeth, but
according to others, the starboard bow of each vessel
striking the starboard bow of the other. The injury
done to the Niagara is stated by her m .iter to be, the
starboard side of the top gallant forecastle started and
several stanchions broken, tlie figure-head and cut-water
broken, head rails and knees broken, windlass bits
starto<l, cat head broken, bowsprit and jib-boom carried
away, fore-top mabt and fore-yard and fore-top gallant
yard broken, sails, standing and running rigging destroyed
and broken forward, and all the gear connected with the
bowsprit, main-top gallant mast and stays carried away,
and the stock of the bower anchor broken. The injury
done to the Elizabeth is stated by her master to have
been done by the cut-water of the Niagara striking the
starboard bow of the Elizabeth, and breaking seven of
her timbers in the bow, the top -gallant rail and bulwarks,
injuring the after-part of the fore-rigging, the main-top
sail and cat-head breaking four planks, covering boards
and two paint streaks, and also destroying the ceiling
and water way, two chain plates and a great part of
the fore-rigging, the bowsprit of the Niagara having run
through it. •■ ,-

With regard to tlie circumstances which immediately
preceded and occasioned the collision, the evidence, as
usually occurs in like cases, is conflicting. Owen Evans,
the boatswain and look-out man of the Niagara, says,
"that he was on the top-gallant fore-castle of the vessel,
walking from side to side, in order that he might see in
every direction, when at about a quarter to seven, the
Niagara having just passed a vessel to the southward at
anchor, he saw two lights a-head, which he at first took
for the lights of a vessel at anchor ; he believes them to

Foil LOWKll CANAKA.

•'{11

have been a quarter of a mile off, but ahuust iminediiitely
seeing sparks, and the liglits proceeding more to the
southward, he knew it to be a steamer, and thereupon
cried out to the pilot of the Niagara, ' lights on the star-
board bow ; ' the pilot came forward, and then gave orders
to the man at the wheel to starboard the helm, which was
at once done, the ship immediately answered her helm ; "
he says that " the steamer was just in the centre of us
about half a cable's length to the southward," that the
steamer was then avoided, but that the Elizabeth kept
her helm a-port ; and the consequence was that a collision
took place, the two ships striking one another on the
starboard bow ; that the lights being between him and
the Elizabeth, which the steamer had in tow, he did not
observe the Elizabeth until about nine or ten minutes
before the collision. On being cross-examined, he says,
that he saw the steamer Providence perhaps about
twenty minutes before the collision. The statement of
the look-out-man, Evans, is substantially confirmed by
that of the master, mate, and six of the men of the
Niagara, with this material difference, that whereas Evans
admits that he saw the steamer twenty minutes before
the collision, the master says he only saw the steamer
from a minute to a minute and a half before the collision,
and that he saw the Elizabeth ten or fifteen seconds
before the collision. The mate and seamen vary as to
the time they saw the steamer, stating it at from two to
six minutes before the collision, and all agreeing that
they saw the Elizabeth about a minute after they saw the
steamer. They agree, generally, in stating that the look-
out-man reported lights on the starboard bow ; that the
pilot then went forward and immediately afterwards
ordered the helm to be put a-starboard, and that the
order was instantly obeyed, and the helm put hard-a-
starboard ; that the Niagara was then going four or five
knots and obeyed her helm directly ; that her head was

NlADAIU.
KtlXAUKTII.

11 -ii;

812

Niagara.
Glizabktu.

CASKS IN THK VICK-ADMIUAMY ('UUKT

got well off to the north in order to clear the stenmer,
and that she did clear, hut that in consequence of the
Elizabeth, — which they say was from sixty to ninety
fathoms astern of the steamer, — putting her helm a-port
instead of steering after tlie steamer, she sheered broad
off the steamer's starboard quarter, and she (the Eliza-
beth) and Niagara came into collision, each striking the
other on the starboard bow, and doing the damage com-
plained of. There is little variance among the witnesses
from the Niagara as to the position of the lights of the
steamer when first seen ; the loo'' -out-man says he saw
liio lights a-head, and the mate says, when he saw tlie
li;,'hts first they were about half a point on the star-
board bow ; the master says that the steamer when
first observed was a little on the starboard bow of the
Niagara, and appeared to be steering more to the
southward. .

On the other side, the master, mate, second mate,
carpenter, boatswain, and a seaman of the Elizabeth
agree in stating, that they saw the Niagara between three
and five minutes before the collision, that she was under
H press of sail and converging towards the steamer and
the Elizabetli ; ^hat after hailing her and receiving no
answer, the pilot ordered the helm of the Elizabeth to be
put a-port, because, he said, that she (the Niagara) was
coming across the Elizabeth's bow. That when the
Niagara was so hailed, slie was sufficiently distant from
the steamer and the EH/abatii to make her pass clear of
both, had her helm been put a-port, but that they did not
perceive that she altered her course, and that she con-
sequently ran foul of the Elizabeth, her cut-water striking
the starboard bow of that vessel. They say, that until
the helm of the Elizabeth was so put a-port, she was
steered directly in the course pursued by the steamer.
It is stated by the master of the Elizabeth, and not satis-
factorily rebutted, that the master of the Niagara after-

Foil H)WKH CANADA.

3ia

wards told )iiiii that the Elizabeth was not perceived by
the people on board the Niagara more than half-a-niinute
before the collision, owing, as he said, to the smoke of
the steamboat («). It is proved that the master of the
Elizabeth expected the Niagara might pass between the
steamer and the Eli/.abeth from the course the Niagara
steered, and ordered the ciupenter to be ready with his
axe to cut the tow-rope in case of her doing so, which
she might have done if they had ported her helm. The
carpenter says that the Niagara was steering almost
8 cross the river before the collision. The mate says that
the Niagara continued in the same course until within
about forty fathoms from the Elizabeth, when she appa-
rently put her helm a-starboard and brought her bow
more directly down the river. The mate also says
that he saw the Niagara some time before he reported
her, but did not perceive that she was pursuing a wrong
course until about three minutes before the accident
occurred.

There has been no attempt on either side to attribute
misconduct to the steamer, and the master, one of the
part-owners, and one of the hands on board her at the
time have been examined. These people state, that when
they first saw the Niagara she was about fifteen arpents
(half-a-mile) a-head, and about three arpents to the north-
ward of the steamer's course, — that the course of the
steamer was then altered a little more to the south, — that
the Elizabeth was well steered, straight after the steamer,
— that when the Niagara was about two arpents above, and
three or four arpents to the northward of the steamer, s/ie
altered her course and ran across the river, towards the
steamer, scrajnng the steamer tcith her martingale from the
wheelhouse to the stern. That when the Niagara was seen
to alter her course; the steanaer's helm was put hard

NUOARA.
EuSeAIIKTU.

1 4

'I !
,1 .

I :i

(a) The Manchester, 1 W. Rob. 65.

It ''1

314

NlAQARA.

Elizabkth.

I' i.

• t,

CASES IN THK VICE-ADJURALrY COURT

a-starboard, and that had not this been done, the Niagara
would have run the steamer down ; and that the pilot of
the Niagara cried out to the steamer's people to starboard
their helm, though not till after they had done so. That
after passing the steamer, the Niagara's head inclined a
little more to the northward from the force of the shock
(as they think), and that in less than one minute after she
cleared the steamer, the Niagara ran foul of the Eliza-
beth. That they do not know what parts of the two
vessels came in contact, — they simply heard the crash.
They say they were quite surprised to see the Niagai'a
come directly towards the steamer. That it appeared to
them that the Niagara had no watch. That on board the
Elizabeth the greatest care seemed to be taken to avoid
accidents. They say that the distance between the
steamer and the Elizabeth was about thirty fathoms. The
evidence of Charles Nolet, the pilot of the Hampden,
one of the two ships at anchor, makes no material diflfer-
ence in the case. It confirms the statement of the
steamer's people, that the Niagara struck her before she
struck the Elizabeth ; and also the statement on the part
of the Elizabeth, that the Niagara was steering across
the river, and did not alter her course. This man's
impressions are that the Niagara did not see the steamer
until too late.

Both vessels were engaged in doing what it was per-
fectly lawful for them to do, there being no rule or law
preventing vessels from entei'ing or leaving the harbour
of Quebec at any hour, or obliging them to keep any par-
ticular tracK or part of the channel in so doing. The
Niagara had the wind ' large, and as steamers are to be
considered in the light of vessels navigating with a fair
wind, the steamer and the Niagara may be considered in
this respect as on an equality. The Elizabeth was power-
less to a very great extent ; she had a head wind and no
sails set, and she was fast to the steamer, so that she

FOB LOWER CANADA.

could only sheer to a certain distance on either side of
the course in which she was towed by the steamer. No
blai.ie is attributable by either party to the steamer, and
the only question raised as to the Elizabeth's action is,
whether she exercised her power of sheering properly or
improperly ; and it may be, that in porting her helm
when the Niagara was close upon her, she did right. The
general rule is, that when two vessels are approaching
each other, both having the wind large, and are approach-
ing each other, so that if each continued in her course
there would be danger of collision, each shall port helm,
80 as to leave the other on the larboard hand in passing ;
but it is not necessary that because two vessels are
proceeding in opposite directions, there being plenty
of room, that the one vessel should cross the course
of the other, in order to pass her on the larboard. The
questions arising in these actions seem to be : —

NlAOAKA.

Elizabeth.

h 1
I'.

1. Whether from the whole tenor of the evidence, it
appears that there was a proper and efficient look-out
kept on board the Niagara ; and whether timely notice
was given by the look-out man of the proximity of the
steamer and the Elizabeth ?

2. Whether at the time when the lights of the steamer
were seen by the Niagara, the Niagara was pu suing a
direct course down the river, or was in fact standing too
much to the southward, and crossing the channel and the
course of the steamer and her tow ?

3. Whether, when the danger of colUsion was seen by
the Niagara's pilot and people, the most seamanlike and
proper means were adopted by them to avoid the danger,
and more particularly, whether it was right to put her
helm a-starboard ?

4. Whether, when the danger of collision was seen by
the people of the Elizabeth, the most seamanlike and
proper means were adopted by them to avoid the danger.

316

Niagara.
Elizabeth.

CASES IN THE VICE-ADMIRALTY COURT

and more particularly, whether it was right to put her
helm to port ?

5. And, generally, whether any rule of navigation or
of seamanship was violated by either and which of the
vessels ; or whether there was any fault, neglect of duty,
or want of proper precaution or skill on the part of those
in charge of either and of which vessel ; or, did the acci-
dent arise from circumstances over which neither vessel
had any control ; and is it, therefore, to be considered as
an unavoidable misfortune for which neither can be
blamed or held responsible ?

Upon these several points the Court will avail itself
of the long practical experience and great professional
skill of Captain Jesse Armstrong, the Harbour Master
of Quebec, and one of the Wardens of the Trinity
House ; and of Lieutenant Edward D. Ashe, of the
Royal Navy, and Superintendant of the Observatory at
Quebec.

At a subsequent sitting of the Court, Captain Arm-
strong and Lieutenant Ashe, who had heard the argu-
ments in the case as assessors, gave in the following
answers to the questions submitted for their consi-
deration : — '

" L It appears that there was a look-out-uiari for-
ward at his post, and that he took the lights of the
steamer Providence for those of a vessel at anchor, as
she, the said steamer, did nr t show the proper lights
that are required to be carried according to law. And
we consider that the pilot, or one of the officers of
the ship, should have been also forward on the look-
out.

" 3. It does not appear sufficiently clear that the
Niagara was standing to the southward, across the river,
as is stated in the evidence given by the crew of the
Elizabeth. The steamer put her helm hurd-a-starboard,

FOR LOWER CANADA.

317

and gave a broad sheer to the southward, which might
liave given the Niagara the appearance of crossing the
Elizabeth's bows.

"3 As the lights were not known to be those of a
steamer, until close under the starboard bow, the only
means that could then be adopted to avoid collision, was
by putting the helm of the Niagara a-starboard.

" 4 Whether the Elizabeth was right in putting her
helm hard-a-port, is a question that can be decided only
by those who were eye-witnesses of the collision. But it
appears to us, that had the Elizabeth put her helm hard-
a-starboard instead of port, in all probability the collision
would not have occurred.

" 5. There was no want of seamanship on either side,
but the Niagara showed a want of proper precaution in
approaching lights, even supposing them to have been on
board of a ship at anchor.

"We think proper to remark, that had the steamer
Providence taken the usual course, and put her helm a-
port on seeing the Niagara's lights, in order to pass her
on the proper side, no collision would have taken place."

The Court. — The answers appear rather to be a sum-
mary of the probable facts of the case, than a professional
opinion upon the points submitted in the questions
founded upon those facts. Thus, in the answer to the
first question, it appears doubtful whether the assessors
are of opinion that there was or was not a proper and
efficient look-out kept on board the Niagara; and the
answer is wholly silent as to whether timely notice was
given by the look-out man. In the answer to the second,
no opinion is expressed as to whether the Niagara was
or was not standing across the channel to the southward.
The answer refers only to the evidence of the crew of
the Elizabeth ; and the assessors may have overlooked
that of the pilot of the Hampden, one of the ships at

Niagara.
Elizabeth.

f\ :i

il;

318

NiAOARl.

Elizabeth.

CASES IN THE VICE -ADMIRALTY COURT

anchor ; and, therefore, certainly not affected by the sup-
posed broad sheer given to the steamer. The third
answer justifies the course pursued by the Niagara in
putting her helm a-starboard, when the steamer was close
under the starboard bow ; but does not answer the ques-
tion whether her pilot adopted the most seamanlike and
proper means to avoid a collision, as soon as the lights
of the steamer and Elizabeth were seen. In the answer
to the fourth, I doubt whether the assessors have adverted
to the fact of the Niagara's grazing the steamer from the
wheel house to the stern ; and to the evidence of the
people of the Elizabeth, that the position and course of
the Niagara were such, that the master of the Elizabeth
ordered the carpenter to be ready with his axe to cut the
tow-rope, in order to allow the Niagara to pass between
the tug and the tow. The answer to the fifth question
does not express, in a sufficiently definite manner, the
opinion of the assessors ; — whether either, and if either,
which of the vessels was so far in fault as to throw the
responsibility of the collision upon her ; or whether
neither was so in fault ; and upon this point I should
wish them to give a decided opinion. I may remark,
that if a vessel make every precaution against approach-
ing danger, it is not sufficient to subject her to damage
for injury to another by collision, that in the moment of
danger those on board such vessel did not make use of
every means that might appear proper to a cool spectator,
there must be gross negligence (b). But one must not go
too far back as regards the movements and positions of
the vessels ; the question being solely, whether from the
time there was any' reasonable probability of a collision,
proper measures were or were not adopted on either side.
I may further observe, that in these actions neither party
has imputed blame or misconduct to the steamer ; while

(b) Burns f. Stirling (1819), 2 Mtir. 96, Scotch Rep.

, ' I

FOB LOWER CANADA.

319

the answer of the assessors might be construed to throw
the blame upon her, rather than upon eitlier of the sail-
ing vessels : first, by asserting incidentally that she did
not show the proper lights ; and secondly, by stating that
if she had put her helm a-port on seeing the Niagara's
lights in order to pass her on the proper side, no collision
would have taken place. If the collision arose solely
out of the misconduct of those on board the steamer,
both the Niagara and the EUzabeth are exempt from
responsibility ; and the action on the part of each must
be dismissed, leaving them to their recourse against the
steamer. The law in such cases is, that the tow is not
responsible for an accident arising from the mistake or
misconduct of the tug(c). It appears to me, that the
evidence shows the rule of the Trinity House, as to lights
to be carried by a steamer (d) to have been substantially
complied with by the steamer. She had a red light in
the bow, and she had two ordinary or white lights, — one
on each paddle-box ; the rule requiring one white light
at the stern, sufficiently high to be seen over the paddle-
boxes, where, as in the present case, the steamer has no
mast. But upon this point. Captain Armstrong, as an
officer of the Trinity House, and a man of much expe-
rience in steamboat navigation on the river, will be able
to give a decided opinion. With respect to the opinion
expressed, that if the steamer had put her helm a-port
on first seeing the Niagara's lights, no collision would
have talien place ; the assessors will bear in mind, that
the question is not merely whether if she had so done
the collision would have been avoided, but whether she
was bound so to do by any rule of seamanship or navi-
gation, so as to throw the responsibility of the collision
upon her. Upon the points submitted for the profes-
sional opinion of the assessors, the Court can have no

NlAOARA.

Elizabeth.

(d) 50th sect, of By-laws made
12 April, 1850.

; i

a I

330

NiAOARA.

Elizabeth.

CASES IN THE VICE -ADMIRALTY COURT

desire to influence their opinion, or to express one of its
own ; all that it wishes is, that no material part should
be overlooked by the assessors, and that their opinion on
the points submitted should be as definite as in a compli-
cated case of tliis nature it is possible it should be ; and
that on each point the assessors should endeavour to say
which vessel, if either, or if any was in fault ; or that no
one was, if such be their conviction. The Court, there-
fore, directs that the questions be re-considered, and more
definitely answered.

The assessors afterwards (27th May), made the follow-
ing report : —

" 1 . The look-out man states that he saw the steamer
Providence about twenty minutes before the collision, but
I/O T>vecautions were taken by the Niagara to avoid her,
until the steamer was so close, that notwithstanding the
Niagara answered her helm quickly, she gi'azed the after-
part of the steamer with her martingale. From this, one
of two things is evident : — either the pilot or officer in
charge of the deck did not see the steamer Providence in
time to avoid her, in which case there was a want of
proper look-out ; or, if he did see her, there was great
carelessness shown in approaching so close to her when
he had plenty of room, and might have passed either
to the northward or southward of the steamer and her
tow. The evidence given by Charles Nolet, a third party
and a calm spectator of the collision, is of much impor-
tance. He says, 'and the witness believes that the
steamer was not perceived by the Niagara until too
late ; because he is certain that if she had been seen
in time by the Niagara, and had then the necessary mea-
sures been taken, the collision would have been easily
avoided.'

" 2. We believe that the Niagara was steering a little
to the south shore in order to pass the Hampden on the

FOn LOWER CANADA.

331

starboard side ; but in so doing there was nothing to
prevent her (the Niagara) keeping a briglit look-out, and
taking proper measures to avoid lights that might have
been seen a-hcad.

" 3. When the pilot appears to have seen the danger
of collision, the only thing that could be done at that
time, was putting the helm of the Niagara a-starboard.

" 4. The Elizabeth followed the rules laid down for
vessels meeting each other ; and it would have been well
for all parties if her tug had set her the example in
porting her helm in time. Be this as it may, it is pretty
clear, that if a tug tries to pass on one side of a vessel,
and her tow tries to pass on the other side, without either
cutting, slashing, or letting go the tow-rope, a collision
will inevitably take place. If it was supposed by those
on board of the Elizabeth that a collision was unavoid-
able, then they did right in porting their helm, in
order to get the shock on the strongest part of the
vessel.

" 5. There was no want of seamanship shown on
either side, but a great want of caution on the part of
the Niagara. It should be imperative on all vessels,
particularly steamers from the quickness of their motions,
that they be strictly compelled to carry their lights
according to law, which would in all cases determine
two very essential points : first, that she is a steamer ;
secondly, how she is steering, — the latter a most impor-
tant point, which generally can be easily determined when
proper lights are carried ; that is to say, a red light at
the bow, and a white light at the mast-head or flag- staff
(see the 50th Trinity House bye-law), which regulation
the steamer Providence did not comply with at the time
of the collision. It appears to us that if the steamer
Providence had been keeping a good look-out, and had
immediately put her helm a-port, which she was bound
to do on first perceiving the Niagara, no collision would

NlAQARA.

Elizabeth.

I: !fi

322

CASES IN THE VICE -ADMIRALTY COURT

Niagara.
Elizabeth.

have taken place. In conclusion, we are of opinion that
the Niagara is responsible for the damages done to the
Elizabeth."

ij'!

^ ii

The Court. — The professional gentlemen by whom I
have been assisted in this case are of opinion, and I
concur with them, that the Elizabeth is not chargeable
with any misconduct or mismanagement as regards the
circumstances which led to the collision. Even with
respect to her porting her helm when the Niagara was
close upon her, those gentlemen think that she was fully
justified, if she thought the collision inevitable, and only
wished to make it as harmless as possible. That this
was the opinion of those on board her is clear from the
evidence; their only hope then was that the Niagara
might pass between the Elizabeth and the steamer, and a
man was ready on board the Elizabeth to cut the tow-
rope if necessary. I also concur with those gentlemen
in thinking, that there was sufficient neglect or mis-
conduct on the part of the Niagara to make her liable to
the owners of the Elizabeth for the damages resulting
from the collision. There was no proper and sufficient
look-out on board the Niagara, nor were the proper
means adopted for avoiding collision after the time
when the steamer's lights were seen by the Niagara
over her starboard bow. Her having adopted the most
seamanlike and proper course when the collision was
all but inevitable, does not exempt her from respon-
sibility.

Neither in the pleadings, nor in the evidence, is there
any allegation that the fault was with the steamer. It
may be possible that if she had ported her helm at a
very early period and gone to the northward, the vessels
might have passed clear ; but there was then evidently
sufficient room for them to pass clear without her doing
so, and it is far from improbable that her doing so might

FOR LOWER CANADA.

have brought her into contact with the Niagara, as the
steamer's people assert ; and if she had done so and mis-
chief had ensued, she might have been liable ; for as
is correctly said by Chief Justice Bent, " Although there
may be a rule of the sea, yet a man who has the manage-
ment of one ship is not allowed to follow that rule to
the injury of the vessel of another, when he could avoid
the injury by pursuing a different course" (e). Although
there may be some discrepance in the evidence on this
point, yet I see nothing to justify my concluding that
there was not a suflBcient look-out on board the steamer.
As regards her lights, I incline to think that she com-
plied substantially with the Trinity House rule (/), as far
as circumstances allowed. She had the bright red light
in the bow, and a bright white light over each paddle-box.
It does not appear that she had any mast, and being
engaged in towing, it may be that she could not carry a
flag-staff at the stem without its being in the way of the
tow-rope ; and if so, she seems to have done all that
could be expected under the circumstances, towards
obeying the rule by carrying white lights on each side
sufficiently high to be seen over the paddle-boxes. In
point of fact, the Niagara's people saw these lights ; and
even supposing them to have been insufficient, the acci-
dent did not arise from such insufficiency. Unless it
appeared that the accident arose exclusively from the
misconduct of the steamer, the responsibility could not

383

Niagara.

EU7,ABRTH.

"•'1

"'1

'[3 RH

(e) Handyside v. Wilson, 3
Carrington & Payne, 538.

(/) That all steamboats, whe-
ther at anchor or under way in
the River St. Lawrence, within
the Port of Quebec, shall at night
show a bright red light in the
bow, and a bright white light at
the mast-head, and if any such
boat has no mast, the white light

shall be on the stem sufficiently
high to be seen over the paddle-
boxes ; under a penalty not ex-
ceeding ten pounds currency, to
be recoverable from the master
or other person in charge of such
steamboat, for every contraven-
tion of this regulation. — 50th
sec. of By-laws, made 1 2th April,
1850.

r 2

324

BlilZABKTII,

CASES IN TIIK VICE-\PMinAI,TY COUUT

bfi transferred to lier, so as to relieve the otlier vessels.
I am not called upon, in the present case, to do more
than pronoinice judgment as between the Elizabeth and
the Niagara ; nor will my judgment prevent the recourse
of either against the steamer, if the fault were exclu-
sively hers, — a point which is certainly not established
by evidence in the present suit. The judgment is,
therefore, in favour of the Elizabeth, and against the
Niagara.

From this judgment the owner of the Niagara asserted,
on the 14th instant, an appeal to Her Majesty in Her
Privy Council.

Alleyn, for the Elizabeth.

Stuart and Vannorous, for the Niagara.

FOR LOWER CANADA.

y::i5

Tuesday^ %\st November, 1854.

NEW YORK PACKET— Marshead.

Harbo .1 \ Master has authority to station all ships or vessels which
come to vae harbour of Quebec, or haul into any wharf within the
same, and to regulate the mooring and fastening, and shifting and
removal of such ships or vessels.

Owner of vessel contravening harbour master's order, condemned in
damages for a collision.

Vessel moored alongside of another at a wharf in the harbour of
Quebec, made responsible to the other for injuries resulting from her
proximity.

The present action was brought by the owner of the
ship Storm King, against the bark New York Packet, for
damages occasioned by a collision in the harbour of
Quebec, on the 31st of June last. The judgment given
in tlie case was as follows : —

The Court. — Hmi. Henry Black.

The rules of the Trinity House of Quebec provide
that the Harbour Master of Quebec shall station all ships
and vessels which shall come to the harbour of Quebec,
or any part thereof, or haul into any of the wharves
within the limits of the said harbour, and shall regulate
the mooring and fastening, and shifting and removal of
such ships and vessels, and shall determine how far and
in what instances it is the duty of masters and other
persons having charge of such ships or vessels, to accom-
modate each other in their respective sitv/.nons, and all
disputes which may arise touching or concerning the
premises or any or either of them. And any master or
other person having charge of any ship or vessel, who
shall refuse or neglect to obey the directions of the said

Nkw Yuhk
Fackkt.

I it

•I

n
1 1

886

CASES IN THE VICE-.iDMIKALTY COUUT

Nkw York
Tacket.

Harbour Master in the premises, or in any or either of
them, and any wharfinger or other person who resists or
opposes such Harbour Master in the execution of the
duties thereby required of him, or of any or either of
them, shall for each and every such offence incur and pay
a penalty not exceeding ten pounds currency.

This being the law of the Harbour, it appears Uittt on
the 21st June last, the barque New York Packet was
lying at Gillespie's wharf, in the harbour of Quebec, in n
berth usually and properly assigned to a line of steamers,
of which the Lady Elgin is one. In the afternoon of
that day, the Lady Elgin having arrived, and it being
necessary that the New York Packet should quit the
berth so occupied by her, in order to allow the Lady
Elgin to come into it; the master of the New York
Packet applied to the Harbour Master, Captain Arm-
strong, telling him that he knew he had no right to
retain the berth then occupied by his vessel, and -uest-
ing him to assign her a berth in the docP veen

Gillespie's wharf and St. Andrew's wharf, the next wharf
above it. The Harbour Master had also been applied to
on the same day by the agent of the Lady Elgin to have
the New York Packet removed out of the Lady Elgin's
berth. At about five o'clock the same afternoon, the
Harbour Master went to the spot, and having caused the
steamer Lord Sydenham — which then lay across the
space between the two wharves so as to shut up the dock
between them — to heave ahead, and to make an opening
for the New York Packet to enter ; the New York Packet
was then, under his directions, hauled into the dock, and
being placed in a diagonal direction with her larboard
bow resting against the side of the Bremen ship Adlar,
or Eagle, her starboard side about midships, resting
against the larboard quarter of the Marie Celina, and a
wai'p from her starboard bow, and another from her star-
board quarter being made fast to the upper and outward

FOR LOWER CANADA.

corner of Gillespie's wharf, to prevent her either swinging
or going ahead. The Harbour Master conQidoved her
safely moored for the night, and told the master so, dis-
tinctly charging him not to attempt to move his vessel
further ahead, because there was not room enough
between the two wharves for his vessel, the two others
which have been mentioned, and the Storm King, which
was lying in the Jock at Gillespie's wharf, and inside of
the Marie Celina. It was then very little after high
water. It appeav that St. Andrew's and Gillespie's
wharves are ba'ilt v/ith very considerable batter, so that
the space between thom at the bottom is less, by about
eight feet, than at the top.

After the Harbour Master's departure, the master of
the New York Packet hauled his vessel forward until she
lay between, and parallel to the Adlar and ^larie Celina,
the Storm King being inside the latter, which there was
then just room enough for him to do. He requested the
people of the Marie Celina to haul ahead, but they
declined, and in so doing were backed by the master of
the Storm King, out of which the Marie Celina was
receiving cargo, and who protested against any attempt to
move the Marie Celina, which would put him to con-
siderable inconvenience. In this position the vessels lay
with the tide ebbing out, and as the water fell in the
dock, and the space between the whai-ves, at the water
level diminished, they became tightly jammed together,
so that it was then impossible to move them ; and as the
water continued to fall, the pressure became so great that
the Marie Celina was completely crushed, and the Storm
King was suspended between the Marie Celina and the
wharf, and thrown over nearly on her beam ends : both
vessels, but more especially the Marie Celina, which was
the smaller and the weaker, receiving very great damage.

To recover the damage done to the Storm King the
present action is brought. The chief ground of defence

Nbw Yoke
Taokit.

I i

t n

328

CASES IN THE VICE -ADMIRALTY COURT

New York
Packet.

is the refusal of the Marie Celina to heave aheaa n
requested to do so by the New York Packet, and that of the
Storm King to allow her to do so. But the berths which
these vessels occupied had been assigned or confirmed
to them by the only competent authority, that is, the
Harbour Master ; who did not think proper, under the
circumstances, to direct the Marie Celina to move ahead.
Nor does it appear that the master of the New York
Packet applied to the Harbour Master to direct tlie Marie
Celina to heave ahead : on the contrary the Harbour
Master expressly directed the New York Packet to remain
in the position she then occupied for the night, warning
the master at Ihe same time of the damage which would
be incurred if he attempted to haul further in. It is in
evidence that the night was calm, that there was no
appearance of bad weather, and that tlie Harbour Master
considered the New York Packet perfectly snug till the
morning. Since, under these circumstances, the New
York Packet chose to set at naught, not merely the
opinion but the positive injunction and warning of the
Harbour Master, and thereby occasioned a very great
damage to vessels which were in nowise in fault, and
which contravened no order or rule of the harbour, it is
only right tliat the New York Packet shovJd bear the
loss, which her violation of the Harbour Master's order
brought upon innocent parties ; and, therefore, however
unfoiiunate it may be for her owner, I am of opinion
that he must be made responsible.

It is evidently necessary, for the good of all, that there
should be some officer clothed with sufficient authority to
decide promptly all questions as to the berths or positions
which vessels may occupy in a crowded harbour like that
of Quebec; and this authority the Legislature, acting
through the Trinity House, has devolved upon the
Harbour Muster. Any contravention of suoli authority
must manifestly tend to general loss and inconvenience.

FOR LOWER CANADA.

329

and often to great damage, as the contravention of which
the New York Packet was guilty in the present instance
has done. Had she suffered injury herself, or occasioned
injury to others by obeying instead of contravening the
Harbour Master's orders, she might have been blameless,
however great the damage occasioned. The order of the
Harbour Master, in such case, would have been her
defence, as it now forms the ground of her condemna-
tion (a).

From the decree of the Court the owner of the New
York Packet asserted an appeal to Her Majesty in Her
Privy Council, and gave the usual bail.

New Yoek
Packet.

Stuart and Vannovom, for Storm King.

Sol.- Gen. Boss and Edward Jones, for New York Packet.

(a) A vessel which moors along-
side of another at a wharf or
elsewhere, becomes responsible to
the other for all injuries result-
ing from her proximity, which

human skill or prevention could
have guarded against. The Lake,
2 Wallace's Reports, C. C. of
U. S. for third circuit, p. 52.

■i ir

ill
In

330

CASES IN THE VICE-ADMIRALTY COURT

Eleotrio.

Saturday, 10th March, 1855.

ELECTRIC -MoLTON.

In a case of very meritorious servioe rendered by two seamen and
two young men to a vessel in the river St. Lawrence, the Court
awarded one-sixth part of the property saved, and also their costs
and expenses.

This was a cause of salvage, promoted by Edward
Hovington and Malcolm Hovington, and by Hubert
Eraser on behalf of his minor sons Daniel Eraser and
Elzdar Eraser, for services rendered to the barque
Electric, stranded on Bed Island shoal to the eastward
of the island, on her homeward voyage in November,
1853. The circumstances of the case are fully noticed
in the following judgment.

Judgment. — Hon. Henry Black.

The Electric, John Molton, master, sailed from Quebec,
on the 17th November, 1853, on a voyage to Bideford,
a sea-port in Devonshire in England, and proceeded down
the river St. Lawrence as far as Red Island, about one
hundred and forty miles below Quebec. On the evening
of the 22nd November, she grounded on Red Island
shoal, to the eastward of the island, the weather being
at that time more than usually inclement, and the ice
forming round her and upon her, so as to prevent her
from being worked, or moving. Notwithstanding the
efforts of the master and crew, she remained fast during
the 23rd, 24th, 25th, 26th and 27th. On the last men-
tioned day the master aiid crew left the vessel, being no
longer able to endure the cold and the hardships to which
they were subjected, some of them being disabled by

FOR LOWER CANADA.

381

sickness proceeding from these causes. A pilot of the
name of Thomas Simard, who had come to their assist-
ance, and had been with them in the vessel, also landed
with them. The crew were taken to the light-house on
the island, where they remained over night. On the 28th
the vessel was carried off by the ice with the ebb tide,
and had drifted down the river some distance, when the
master and several of the crew, and this pilot, made two
or three fruitless attempts to cut their way through the
ice to the vessel. They then, under the advice of the
same pilot, left the island, and crossed over to the parish
of Green Island, on the main land, on the south side of
the St. Lawrence, the master declaring that he believed
any attempt to get to the vessel was hopeless, and think-
ing it possible that she might drift across the channel to
Green Island. At about five o'clock the same evening,
Edward Hovington and Malcolm Hovington, two seamen,
the former about twenty-four years of age, and the latter
about nineteen, who had come over from Tadousac, on
tlie north shore of the river, to Red Island, for the pur-
pose of rendering assistance to the Electric, proposed to
Daniel Eraser and Elzear Eraser, two young men, the
one nineteen, and the other about fourteen years of age,
to go off in a boat belonging to the Hovingtons, in pursuit
of the vessel, and to make an effort to go on board, and
save her if possible. They all agree, and accordingly
leave Eed Island about five o'clock in the evening, and by
great perseverance, courage, and skill, and with great
peril of their lives, they force their boat through the ice,
and succeed in getting on board in about two hours after
they had left the island, the vessel being then about
three miles below Red Island, surrounded by the ice, and
drifting with it and the tide. They find the hull of the
vessel and deck covered with ice, the sails and rigging
frozen stiff, so that it was very difficult and dangerous to
attempt to navigate her, or to do anything with her. The

Electric.

i'l

i vs

■ I

CASES IN THE VICE-ADMIRALTY COURT

wind was then strong from the south-west or down the
river the night dark, and the weather very bad, with
squalls and snow storms, and great cold ; and they remain
on board during the night. The vessel had drifted down
about eighteen miles below Red Island, or nearly opposite
the Esquamine islets, when about three o'clock in the
morning the wind first slackened, and then changed to
the north-east, with a moderate breeze, the ship neverthe-
less being always surrounded by ice. Taking advantage
of this favourable opportunity, the salvors with some diffi-
culty managed to set the sails, and direct their course up
the river. Notwithstanding the difficulty of steering the
vessel, the knowledge the Hovingtons had of the river,
enabled them to avoid several very dangerous places, and
finally to get the ship into Tadousac Bay, where they
made her fast, and then stored away on shore her sails
and rigging. The vessel was anchored, and remained
afloat all the winter, and until she was delivered to the
owner in the following spring, and proceeded on her
voyage. It appears that in saving the vessel the Hoving-
tons lost their boat, which was crushed in the ice, and
that the parties were engaged in the salvage service about
nineteen or twenty hours ; and the daring courage and
skill exerted by the Hovingtons especially, were very
great.

The only question to be determined is the amount to
wliich the salvors are entitled. The several attempts at
compromise, and conversations between the parties in-
terested, which have been referred to in the evidence,
amount in law to nothing ; and against those parts of the
evidence which- tend to decry the value of the services
rendered by the salvors, the Court is bound to take into
consideration the fact that the protest made by the
master, which would have contained a narrative of the
facts when they were fresh in his memory, has not been
produced ; and that neither the master, the mate, nor any

FOR LOWER CANADA.

333

of the crew have been examined in the case ; although it
may be fairly supposed that the protest, and the evidence
of these men would have been the best evidence by which
the Court could have been informed of the facts of the
case, and of the circumstances under which the vessel
was abandoned. According to the rules of proceeding in
Admiralty Courts, the protest in such cases ought always
to be produced ; and if it be not, th salvors are fairly
entitled to the benefit of the inference that it is withheld
because it would be too favourable to them. On this
point the remarks and reasons of the present eminent
Judge of theHighCourtof Admiralty, Doctor i?^s/««^^ow,
in the case of the Emma (a) are conclusive.

The owner has paid into Court, since the action was
brought 325/. currency, as the salvage. This sum does
not appear to the Court to be sufficient. The amount
must be governed by considerations of the danger to the
ship, value, risk of life, skill, labour, and duration of the
service. The danger to the vessel was most imminent ;
there does not appear to be any reasonable cause for
believing that if no one had gone on board after the
master, pilot, and crew had left her, — or if the sails had
not been set, or if she had not been steered and managed
with the greatest hardihood and skill, — she would ever
have been saved, or have drifted into any place where the
master and crew could have boarded her again. The
value of the ship and cargo is admitted to be 3000/.,
currency. The risk of life incurred by the salvors must
have been considerable, for fchev did what the master
and crew had deemed it too dangerous to attempt ; and
the skill and labour must have been great also, for the
salvors accomplished what the master and crew, and pilot,
had abandoned all hope of accomplishing. Such being
the case the duration of the service is almost immaterial

Blbctrio.

(a) 2 W. Robinson's Rep. tP- 316-7.

I i

CASES IN THE VICE -ADMIRALTY COURT

to the inquiry. It is the manifest interest both of owners
and insurers or underwriters of vessels to encourage every
attempt to save vessels, under circumstances like those
which distinguish this case. The navigation of the river
St. Lawrence, at the end of the month of November, is
well known to be exceedingly difficult and perilous, and
in 1853 it was more than usually so. There was no
obligation on the part of the young men to risk their lives
in the attempt to save the vessel, more especially as there
was not a living being on board, and therefore property
only, and not life, was to be saved. They were only
emboldened to risk their own lives by the hope of a liberal
recompense if their enterprise succeeded. If they had
failed they would have got nothing, and might have been
lost or maimed in the attempt. Taking this view of the
case, I think it just and right, and at the same time for
the interest of the trade, and the general encouragement
of similar eiforts, that the salvors should receive one-sixth
part of the property saved, or 500/. currency, together
with their costs and expei.- Of the 500/., I award
three-fifths to the Hovingtons, making 150/. each, and
two-fifths to the Erasers, making 100/. each. »

Sol.-Gen. Hoss and Gmithier, for salvors.
Stuart and Vannovous, for owner.

FOE LOWER CANADA.

835

Tuesday, Srd July, 1855.

THE INGA— ElLERTSEN.

Merchant Shipping Act, 17 Sf 18 Vict. c. \Qi— Steam Navigation
Act, 14 Sf 15 Vict. c. 19— Collision— Steamer and Sailing-vessel,
respective duties o/".

By the Merchant Shipping Act (17 & 18 Vict c. 104, ss. 296, 297)
and the Steam Navigation Act (14 & 15 Vict. c. 79), as well as by
the rule of the Trinity House of Quebec, where a steamer meets a
sailing-vessel 'going free, and there is danger of collision, it is the
duty of each vessel to put her helm to port, and pass to the right,
unless the circumstances are such as to render the following of the
rule impracticable or dangerous.

The circumstances of the case examined, and no sufficient excuse
being found for not following the rule, a sailing-vessel condemned
in damages and costs for putting her helm to starboard, and passing
to the left of a steam tow-boat, thereby causing collision with the
vessel in tow, the steamer and her tow coming down the channel
nearly or exactly upon a line with the course of the sailing-vessel.

This was a cause of collision promoted by the owners
of the barque Universe, in which they claimed compen-
sation for damage sustained by that vessel, in consequence
of being run into on her voyage from Montreal, on the
S8th May, 1854, by a vessel called the Inga. The facts
of the case sufficiently appear from the following opinion
of the learned Judge.

The Court. — Hon. Henry Black.

The Inga, a Norwegian vessel of about 480 tons, had
been lying in the harbour of Quebec, opposite the Lower
Town market-place, and in the afternoon of the 28th
May, 1854, got under weigh for the purpose of proceed-
ing to the ballast ground, from two to three miles up the
river. The tide was ebbing, and the wind a light breeze
from the eastward, and she went up under sail. Between

Inoa.

mmmmmm

336

CASES IN THE VICE-ADMIRALTY COURT

Inoa.

three and four in the afternoon she had nearlj' reached
the place at wliich she intended to come to anchor. She
had come up under her fore-sail, fore-top-sail, and main-
top-sail ; but having decided upon the place at which she
was to anchor her main-top-sail was taken in, and she
was proceeding under her fore-sail and fore-top-sail, the
wind still light from the east, the tide ebbing, and the
vessel having way enough to stem it, and to move past
the land at the rate of from half a knot to a knot an hour.
At the same time the steam tow boat. Lumber Merchant,
was coming down the river from Montreal to Quebec,
having the barque Universe, about 313 tons re^ster in
tow astern of her, with about 50 fathoms of tow rope.
They were going six knots through the water, or about
nine past the land with the tide. When the vessels came
in sight of each other they were about a mile and a half
or two miles apart, all three being somewhere about the
centre of the channel; the witnesses examined on the
part of the Universe saying that the Inga was a little to
the north, or on the port-hand of the line on which the
Lumber Merchant and Universe were proceeding; and
the witnesses examined on the part of the Inga affirming,
on the contrary, that the Inga was a little to the south of
that line, or in other words that the Lumber Merchant
and Universe were a little on her starboard bow. Both
parties however agree that the vessels were nearly in a
straight line. As they approached, the helm of the Inga
was put a starboard which threw her head round towards
the south. The Lumber Merchant and the Universe on
the contrary put their helms a-port, which threw their
heads also to the south, and the consequence was that
the Lumber Merchant just cleared the Inga, leaving her
on the port side ; but the Universe and the Inga came
into collision, the Inga's bow striking the port side of the
Universe about the main rigging, doing considerable
damage to both vessels. At the time of the collision the

FOR LOWER CANADA.

337

tow rope broke near the steamer's tow post. The vessels
were afterwards cleared, and to recover the damage sus-
tained by the Universe the present action is brought by
the luga.

The only questions to be decided in order to ascertain
whether the action is well or ill-founded are, whether the
Inga in putting her helm a starboard was justified by the
rules and customs of navigation, or whether she ought
rather to have kept her course or put her helm a-port ;
and whether the Lumber Merchant and Universe did
right in porting their helms.

The j;reat increase of trade in the river St. Lawrence
and in the inland navigation of the province, and more
especially in the number of steam vessels and of vessels
towed by steam vessels, renders it of great importance
that some clear and definite rule should prevail as to the
course which should be adopted by such vessels when
going in opposite directions, and so placed that if each
continue her course there would be danger of collision.
The recognised rule for sailing vessels has always been
that if both vessels have the wind fair, each vessel should
port her helm so as to pass each other on the port hand :
that if both vessels were close hauled, the one on the
starboard tack should keep her course, and the one on
the larboard tack should give way. This, as was lately
very clearly remarked by the learned and able Judge
Sprague of Boston in a judgment given by him in Sep-
tember last, in the case of the Osprey (a) is in reality the
same rule qualified by the other perfectly well understood
rule, that neither vessel is bound to port her helm, if by
so doing she would either run into direct danger or would
cease to be under command ; for, if the vessel on the
starboard tack close hauled were to port her helm, she
would be thrown into the wind and cease to be under

Inoa.

(a) 7 Law Reporter, 384.

888

CASES IN THE VTCE-APMTPALTY COnnT

ll I

Ino^. command; whereas the vessel on the larboard tack by
porting her hehn goes off from the wind, and is perfectly
under command. The old rule was also that if one vessel
had the wind large or free, and the other was close
hauled, the one being close hauled should keep her course,
and the other should port her helm and give way. The
reason being obviously that the close hauled vessel would
suffer much more inconvenience by giving way, and
falling to leeward, than the other which having the wind
free could immediately regain the line on which she had
been proceeding. The rule therefore was in substance
that vessels meeting as stated, should each port her
helm, unless one of them by so doing would either
run into danger or be put to much greater inconvenience
than the other.

When steamboats came to be generally used, their
power of proceeding in any direction without regard to
the wind, placed them always in the same condition as a
vessel proceeding with the wind free, and accordingly the
custom seems to have been so to regard them. On the
30th October, 1840, the Trinity House of London made
a regulation that " when steam vessels on different
courses must unavoidably or necessarily cross so near
that by continuing their respective courses there would
be a risk of coming in collision, each vessel shall put her
helm to port, so as always to pass on the larboard side of
each other. A steam vessel passing another in a narrow
channel, must always keep the vessel si e is passing on
the larboard hand(i)." And the preamble to this rule
recites that steam vessels "may be considered in the
light of vessels navigating with a fair wind, and should
give way to sailing vessels on a wind on either tack," and
that " it becomes only necessary to provide a rule for
their observance when meeting other steamers or sailing

(6) See the Rule, I W. Rob. 488.

FOR LOWKU CANADA.

830

vessels going large." Notwithstanding this recital the
rule does not in direct terms apply to steamers meeting
sailing vessels, and it was so held hy Doctor Liis/iiiKjfnii,
in the case of the City of London {c) decided on the 31th
April, 1845 : but the considerations in the preamble of
the rule were adopted by that learned Judge as consistent
with the common law, with sound reason, and with tlie
established rules of navigation ; and he held accordingly
that a steamer should be regarded as a vessel proceeding
with a fair wind, when meeting sailing vessels. The
rule of the Trinity House of Quebec, made on tlie same
subject, on the 12th April, 1850, was in spirit the same
as that of the Trinity House of London ; and on the 31st
March, 1854, the Trinity House of Quebec passed a
further regulation meeting the precise case omitted in the
English rule, and directing " that sailing vessels with a
fair wind, and steam vessels when meeting within the port
of Quebec, shall port their helm and draw to the star-
board, passing each other on the larboard hand." This
rule, as before observed, is only the application of the
doctrine that steamers shall be considered as vessels
having the wind fair. Between the dates of the two
Quebec rules, the English Steam Navigation Act (14 &
15 Vict. c. 79) was passed (d), and the 27th sect, provides
that " Whenever any vessel proceeding in one direction
meets a vessel proceeduig in another direction, and the
master or other person having charge of either such
vessel perceives that if both vessels continue their respec-
tive courses they will pass so near as to involve any risk
of a collision, he shall put the helm of his vessel to port,
so as to pass on the port side of the other vessel, due
regard being had to the tide and to the position of each
vessel with respect to the dangers of the channel, and as
regards sailing vessels, to the keeping of each vessel

Inoa.

(<•) 4 Notes of Cases, 40,

(d) 7th August, 1851.
9 9

340

Inqa.

CASKS TN TITR VTCE-APAnnAT.TY COTinT

under command: and the master of any steam vessel
navigating any river or narrow channel shall keep as far
as is practicable to that side of the fair- way or mid-
channel thereof which lies on the starboard side of each
vessel." This rule applies to all vessels without distinc-
tion, whether impelled by steam or by sails. Each
vessel is to port her helm ; the only exception being when
by so doing she would be brought into danger, or if a
sailing vessel the command over her will be lost. This
it is evident is only the old rule and reasoning thrown
into a general form and made applicable to all cases.
The 290th and s'OTth sections of the British Shipping
Act, which was passed on the 10th August, 1854, and
came into force on the 1st May last (17 »& 18 Vict. c. 104)
contains the following enactment on this subject : —

" Whenever any ship, whether a steam or sailing ship,
proceeding in one direction, meets another ship, whether
a steam or sailing ship, proceeding in another direction,
so that if both ships were to continue their respective
courses tliey would pass so near as to involve any risk of
a collision, the helms of both ships shall be put to port so
as to pass on the port side of each other ; and this rule
shall be obeyed by all steamships and by all sailing ships,
whether on the port or starboard tack, and whether
close-hauled or not, unless the circumstances of the case
are such as to render a departure from the rule necessary
in order to avoid immediate danger, and subject also to
the proviso that due regard shall be had to the dangers
of navigation, and, as regards sailing ships on ti ar-
board tack close hauled, to the keejii" ships under

command.

"Every steam ship, when na\ iting nny narrow
channel shall, whenever it is safe and prac icable, keep
to that side of the fair-way or mid-channel, which lies on
the starboard side of such steamship."

FOR LOWER CANADA.

341

The rules here given are in substance precisely the
same as before, though given in other language, and more
general and perhaps more definite terms. The rule is as
before, that each vessel shall port her helm, unless she
would incur danger by so doing, or the command over
her would be lost. The British and the Canadian rules
are therefore the same, and though that portion of them
which relates to the meeting of steamers and sailing
vessels does not appear to have been formally enacted in
direct words until recently ; yet, as we have seen, it has
been always recognised and adopted as reasonable and as
consistent with the long established rules of navigation.
The same rule seems to prevail in the United States,
except that as appears in the case of the Osprey, and the
cases therein referred to, our neighbours incline to give
greater extent to that portion of the old British rule
which favours the vessel which would be most incon-
venienced by porting her helm, and to hold that as a
steamer has greater command over her motions than a
sailing vessel with a fair wind, she ought to give way to
such sailing vessel ; and that the latter ought to keep her
course without porting her helm, leaving the duty of
turning aside so as to avoid the collision solely to the
steamer. I am not called upon to decide whether the
English or the American interpretation of the old rule
would be the best to adopt ; first, because the Canadian
and English rule must prevail in our waters ; and
secondly, because in the case before me the Inga did not
keep her course, but starboarded her helm. The English
rule has, however, the advantage of being more certain,
and more easily remembered ; and it does appear to me
that there must be less danger of collision, and that the
vessels can get out of each other's way in less time if both
draw to starboard, by porting their helms, than if one
stands still, and throws the whole burthen of the move-
ment upon the other. '

Inoa.

842

CASES IN THE VICE -ADMIRALTY COUUT

Inoa. I think, then, that in the present case each vessel was

bound to put her helm to port, unless there were some
peculiar circumstances in the case which made it
dangerous so to do, or rendered a deviation from the rule
necessary or justifiable. Now, it appears that both the
Inga and the steamer were perfectly under command,
each had sufficient way to make her obey her helm im-
mediately. By the evidence of the Inga's own people it
would seem that she was, if at all, very little to the star-
board side of the steamer and her tow ; so little indeed
that the master of the Inga himself admits that it was
necessary to starboard the Inga's helm in order to get
sufficiently out of the line of the steamer and her tow, to
enable them to pass safely on the starboard side. On the
other hand it is denied by the witnesses for the Universe
that the Inga was at all to the southward; and it is
certain, from what took place, that if the Inga had ported
her helm, or even perhaps if she had continued in her
course the collision would have been avoided ; for, the
Inga's people say that her helm was starboarded about
two minutes before the collision, and in two minutes she
must clearly have run more than half the length of the
Universe to the southward ; and if she had been half the
length of the Universe less to the southward than she
was at the time of the collision, it is equally clear that
she would not have struck that ship ; and if she had
ported her helm she would have gone to the northward,
and been still further out of danger : and even if the
collision would not have been avoided the Inga would
not have been in default, and would not have been
responsible for the consequences. The case is not one of
a sudden rencontre where there is no time for considera-
tion ; the vessels were undoubtedly seen by each other,
at least ten minutes before tliey met {e). Neither is it a

FOR LOWER CANADA.

313

case where there was any danger to either in obeying the
rule ; the channel was wide enough, and both could have
drawn to the starboard without risk of touching the
ground or of encountering any other damage ; and both
were in charge of pilots who were bound to know the
rules of the Trinity House and of the river. Under these
circumstances I can have no hesitation in giving effect to
a definite and easily observed rule, which appears ex-
tremely well adapted to insure safety ; and in deciding
that the collision arose from the failure of the Inga to
obey it.

Stuart and Vannovous, for Universe.
Edward Jones, for Inga.

Inqa.

Mann, tried before Sir Frederick
Pollock, Lord Chief Baron of the

Exchequer, at the Summer As-
sizes at Croydon, 1853.

\-\

344

CASES IN THE VICE -ADMIRALTY COURT

Friday, l^th July, 1855.

JOHN COUNTER— Miller.

John Cuontkr. Collision. — Liability of a steam-boat for collision between vessels
^ ' ' one of which is towed by the steam-boat.

This case involved the question of the liability of a

' steamboat towing a vessel, for damage and injuries

caused by the vessel in tow coming in collision with

another vessel. The facts will be found stated in the

following opinion of the Court.

Judgment. — Hon. Henry Black.

On the S2nd September last, the brig William Wilber-
force, was lying at anchor on the ballast ground in the
harbour of Quebec, well over to the north side of that
place, and about the middle of the channel of the River
St. Lawrence. A barque was at the same time lying at
the ballast ground about two cables' length to the north-
ward, or towards the Quebec shore, and a little lower
down the river or astern of the brig. The wind was
light from the south-west or down the river ; and the
tide was ebbing at the rate of about four miles an hour.
At about two o'clock in the afternoon the steamer John
Counter, belonging to the Wolfe Island Railroad and
Canal Company, on her way from Montreal with the
barges Onward and Utility in tow, rounded Pointe ii
Pizeau, and came in sight of the brig. From the
evidence both of the pilot and master of the steamer, and
of the people of the barges, it appears that they saw the

FOR LOWER CANADA.

346

brig and the barque when they were about two miles dis- Jo"" Countkr.
tant. The only discrepance as to the position of the
vessels is, whether when the vessels were just within
sight of each otlier, the steamer was on the port or on the
starboard side of the brig. All the witnesses, however,
agree that there was plenty of room and time for the
steamer and her tows to pass to the south of the brig or
on the port side, where there was nothing between the
brig and the south shore.

The pilot of the steamer being of opinion that he
could pass safely between the brig and the barque, and
wishing, as he says, to save a certain distance in getting
to the wharf, at which the steamer usually lay, determined,
with the consent of the master, to make the attempt, and
the steamer's helm was therefore put a starboard, which
inclined her bow to the north shore ; and she cleared
the brig by about the steamer's breadth. The barge
Onward, which was about eighty or a hundred feet astern
of her did not clear the brig, but the barge's starboard
side about midships struck the bow of the brig; the
second barge (Utility) being about fifty or sixty feet astern
with her stem struck the brig's larboard bow, the tow
rope broke, and she swung alongside the brig. At
the time of the collision the steamer and her tows were
running down the river, with steam and tide together, at
the rate of from ten to twelve knots, the barges being
ligh*. It does not appear that at the time the steamer's
helbj was put a starboard, any special direction was given
to the barges, as to how they should steer, though the
people of the steamer assert that they had been carelessly
steered all the way down from Montreal. -

From the circumstances of the collision it appears that
the ateamer really was, as is asserted by the witnesses ,
fi)r the brig, on the larboard or south side of the brig,
when her pilot tmd master deteriuiued to endeavour to
pass between the brig and the barque, and put her helm

f I
• I

■I

346

CASES IN THE VICE- ADMIRALTY COURT

John Counter, a starboard for that purpose; and that she really did,
as the same witnesses say, cross the bows of the brig. The
tide was then running strong down, and the steamer and
her tows were, of course, swept down with it. The action
of the steamer, after her helm was so put a starboard, was
to carry herself and to draw the barges to the northward,
or starboard side of tlie brig. The steamer being the
foremost was carried sufficiently far in that] direction to
pass the brig, by rather more than her own breadth, but
the Onward being eighty or a hundred feet astern had
not drawn sufficiently to the northward before the tide
had carried her down as far as the brig, and she conse-
quently struck the brig's bow with her starboard side.
The Utility being fifty or sixty feet still further astern,
would of course be carried still further down the river
before she could get on the line of the brig, and we
accordingly find that she struck the larboard side of the
brig with her stem, when the tow-rope broke, the
brig being between her and the steamer. The facts
in the evidence thus agreeing with the cii'cumstances
which must have taken place, if the steamer crossed
the brig's bow, as is asserted by the witnesses on
behalf of the brig, convinces me that this assertion
is correct, and that the steamer really was to the
southward of the brig when she determined to pass
to the northward of her {a). It would seem, therefore,
apart from other circumstances tliat the determination
was rash and hazardous, and that the steamer ought to be
responsible for any attempt to carry it into effect.

But even supposing that at the time when the brig was
first seen from the steamer, the steamer was either in a

(a) The Court will not enter
iutu the discussion as tu the pre-
cise point whetlier on the star-
bourd side ur otherwise in which
one vessel lies to the other ut the

time of being discovered. (See
opinion of Dr. Lushiugton in the
case of The Hose, Oilmore, 1 W.
Hob. 1, and in the case of The
Columbine, Nutwood, ibid. 33.)

FOR LOWER CANADA.

347

straight line with the hrig, or a very little to the north Joun Countkr.
of her, which is the utmost that the witnesses for the
steamer state ; yet, they also admit that they saw her
when she was at the distance of ihree-fom'ths of a league
or two miles ; and there is no attempt to say or to show
that there was not plenty of I'oom to pass to the south
of the hrig, and so to obey the spirit of the rule of the
Trinity House of Quebec {b), by passing the brig on the
larboard hand. Instead of doing this, the people of the
steamer preferred, for the sake of saving a trifling dis-
tance, to run the risk of passing between the brig and
the barque. They themselves assert that the barges
had been wildly steered all the way from Montreal ; and
they therefore knew that, even if great skill in steer-
ing the barges would enable them to execute the
manoeuvre with impunity, they could not depend on any
such skill being used : nor did they give any special
directions as to how the barges should be steered, but
left them to do as they had previously done. The
steamer and her tows had just rounded the Pointe a
Pizeau, and in so doing had avowedly inclined their
course as they must have done towards the south side
of the river, and the impulse of the barges was in that
direction, in which the wind also carried them. They
could not change their direction as easily as the steamer
could ; nor could tJiey know that it was the intention
of the steamer to pass on the starboai'd side of the
brig. On the contrary, they were justified in supposing
that she would pass by the clear channel ; and on the
south or port side of her, as I think, under the circum-
stances of the case, she was bound to do. If for the
sake of some expected saving of distance or trouble, she
chose to take the short and dangerous course, she must
bear the consequences resulting from it. The barges

(J) Rule of 31st March, 1854.

348

CASES IN THE VICE-ADmRALTY COURT

John Coonter. had no power to do otherwise than follow in the b. st way
they could ; and having no intimation of her intended
change of course, they could not be blamed even if, —
which does not appear, — they did not follow her so
quickly as they might have done, if they had been fore-
warned of her intention, and directed what to do.

The brig was at anchor, and therefore no blame can
be imputed to her, and she was seen far enough oflF to
allow ample time to avoid the collision, and there was
ample room to do so ; and therefore it cannot be said
that the accident was unavoidable. The collision was
the fault of those who had the power of avoiding it as
the steamer undoubtedly had : and there is no proof that
the barges or either of them had any such power. Cases
may occur in which an accident may arise from the fault
of the tow, without any error or mismanagement on the
part of the tug, and in such case the tow alone must be
answerable for consequences. Cases may also occur in
which both are in fault, and in such cases both would
be liable to the injured vessel, whatever might be their
responsibility inter se (c). The present case is not any
of these ; the manoeuvre which caused the accident was
the spontaneous action of the steamer herself, com-
pelled by no necessity of circumstances, and adopted
solely for her advantage. There was a course open to
her in which no damage could have occurred ; one which
it would have been easier and straighter for her to take
, after rounding Pointe a Pizeau ; which would have been
more consistent with the spirit of the Trinity House

(c) Opinion of Ch. J. Lemuel
Shaw, of the Supreme Court of
Massachusetts, 25th March, 1833,
in Sproul v. Hemmingway, 1
Pickering's Reports, p. 1. Opi-
nion of Judge Vetts iu the case
of the steam tug-buat Express,

26th Feb. 1846, and that of
Judge Nelson, one of the justices
of the Supreme Court of the
United States, on appeal in same
case, 12th November, 1848, 6
Law Observer, pp. 435, 401.

FOR tOW;3R CANADA.

849

rule, and the usages of navigation, antl which the John Coontek.
persons in charge of the barges would naturally expect " ^' '
that she should take. For her own benefit she chose
another and more difficult passage, and her owners must
bear the consequences of her error.

Stuart and Vannorom, for the brig.
Jones, for the steamer.

ii
'ii

350

CASES IN THE VICE-ADMIRALTY COURT

Mart
Bannattng,

Ffkhy, 2ifh August, 1855.
MARY BANNATYNE— Ferguson.

1. Where two ships, close hauled, on opposite tacks meet, and
there would bo danger of collision if each continued her course, the
one on the port tack is to give way, and the other is to hold her
course.

2. She is not to do this, if by so doing she would cause unnecessary
risk to the other.

3. Neither is the other bound to obey the rule, if by so doing she
would run into unavoidable or imminent danger ; but if there be no
such danger, the one on the starboard tack is entitled to the beneiit

of the rule.

4. The circumstances of the case examined, and no sufficient excuse
being found for not following the rule, the vessel inflicting the injury
condemned in damages and costs.

This suit was brought by the owners of the barque

St. John against the barque Mary Bannatyne, to recover

damages occasioned by a collision. The injury occurred

on the 17th of June last, in the river St. Lawrence, a

few miles below the island of Bic. The facts of the

case sufficiently appear in tlie following opinion of the

Court : —

Judgment. — Hon. Henry Black.

On the night of the 10th and morning of the 17th
June last, the barque St. John, of the burthen of 573 tons,
David Blyth, master, and the Imrque Mary Bannatyne,
of the burthen of 535 tons, James Ferguson, master, were
in the river St. Lawrence, a few miles below the island of
Bic ; both were bound to Quebec, and the wind being
adverse, they were both beating up, and close-hauled.
They had seen each other on the 16th, and for several
days before. It appears, also, that in the day-time of the
16th the two vessels crossed each other, passing within

FOn LOWER CANADA.

351

about 100 yards of each other, the St. John being then
on the port tack, and the Mary Bannatyne on the star-
board tack, the St. John giving way a little to allow the
Mary Bannatyne to pass freely: and it is in evidence
that they had seen many vessels also bound to Quebec,
and beating up the river within sight of them. They
continued beating up, and on the night of the 16th the
St. John was running on the port tack towards the north
shore until midnight, when the master came on deck, and
had the ship put about, standing towards the south shore,
on the starboard tack ; on which she continued until the
collision. The Mary Bannatyne, which had been on the
starboard tack on the night of the 10th, also tacked about
midnight, and stood towards the north shore, on the port
tack ; both vessels continuing close-hauled. The wind at
this time was a whole-sail breeze, driving the vessels
about six knots an hour, and both were under perfect
command. Both vessels appear to have had a sufficient
crew, and a sufficient number on watch, and each is
alleged by her own people to have had a light at her bow-
sprit end ; but the people of each deny that they saw any
light on board the other vessel. The people of the
St. John saw the Mary Bannatyne when at a distance of
two miles and a half or three miles off, and do not appear
to have lost sight of her up to the time of the collision.
It is proved on her part, that her master, finding that the
Mary Bannatyne was not giving way, and that the vessels
were approaching each other, caused a light to be dis-
played on the port quarter of the St. John ; and as the
vessels neared each other, hailed the Mary Bannatyne to
port her helm, and continued to do so as loud as he
could until the vessels touched each other ; at the same
time he ordered the man at the wheel to keep the ship as
close to the wind as possible without getting into the
wind, or losing command of her.

It is acknowledged on the part of the Mary Bannatyne

Mahy
Vannattnr.

!■:

: I

353

CASES IN TTIR VTOE-APMinAT,TY COUHT

Mart
Bannatynr.

m t

that she did not port hor holm until she was within so short
a distance that altliough she obeyed her hehn, and went
off the wind, yet it was too hite to avoid the collision, and
her stem struck the St. John on her port side, in tlio
middle of the main rigging, her bowsprit running through
tlie main-sail of the St. John, carrying away the main
rigging and back stays, and everything belonging to the
mizen mast, and doing the other damage complained of.
After the collision the vessels separated.

The wind was between north and north-west, and it is
admitted on both sides that the weather was generally
clear, with showers of drizzling rain. The people of the
Mary Bannatyne say in their defence that this rain
obscured the weather to such an extent that it was not
possible for them to see the St. John at a sufficient
distance to avoid the collision, although there was a man
expressly stationed on the forecastle as a look-out ; — and
this is, in fact, the whole amount of the defence. But,
though the man who was at the wheel of the Mary
Bannatyne when the accident occurred (Patrick Crahan)
says, " that the most vigilant look-out could not, with the
hazy and rainy weather which was experienced during
the twenty minutes immediately preceding the collision,
have seen a vessel to leeward at a greater distance than
twice her length," yet all the other witnesses produced
on behalf of the Mary Bannatyne, including the chief mate
(James Watson), whose watch it was, state, that had the
look-out been attentive he must have seen the St. John
at a greater distance than he did ; and we have in
evidence, on the other side, that the St. John's people
saw the Mary Bannatyne at the distance of about two
miles and a half ; and this evidence is the less liable to
suspicion, inasmuch as it makes against the St. John, if
there were any fault on her part, as it goes to prove that
she had plenty of time to adopt any course which circum-
stances required. Neither does there seem any reason

FOn LOWF.R CAXAPA.

363

wliy the Mary Bannatyne should not see the St. John as
soon as the St. John saw her ; for neither ship was, in
point of fact, any considerable distance to leeward or to
windward of the other, otherwise they could not have
met. The man who is stated to have had the look-
out (Christopher Callaghan) is not produced ; neither is
another man (George Brew), who is said to have been one
of the watch on deck ; and although it is alleged that they
had deserted, yet it does not appear that any search was
made for them, or any attempt to obtain their evidence :
and this is the more to be regretted, inasmuch as the
mate, and all the other witnesses of the Mary Bannatyne,
except one, throw the blame upon the look-out man. On
the other hand, the master and every one of the watch of
the St. John were examined, and agree in their state-
ments, which appear to have been fairly made. Besides
admitting that he saw the Mary Bannatyne two miles and
a half ofif, the master of the St. John admits that he could
have avoided the collision by altering his ship's course,
if he had foreseen that the Mary Bannatyne would not
alter hers.

The undoubted rule of navigation is, that where two
ships, close-hauled, on opposite tacks meet, and there
would be danger of collision if each continued her course,
the one on the port tack shall give way, and the other
shall hold her course. She is not to do this if by so
doing she would cause unnecessary risk to the other.
Neither is the other bound to obey the rule, if by so
doing she would run into unavoidable or imminent
danger; but if there be no such risk, the one on the
starboard tack is entitled to the benefit of the rule. In
the present instance there was certainly no such risk, and
if the Mary Bannatyne had kept a good look-out she
must have seen the St. John in time to port her helm
and avoid her, which she could very easily have done.
There is no allegation on the part of the Mary Bannatyne

Mary
Bannatynr.

A A

354

CASES IN TIIK VICE-ADMIllAI.TY COURT

Mart
Bannatynb.

of any want of skill or infringement of nautical rule on
the part of the St. John, and the master of the St. John
had a right to suppose that the Mary Bannatyne saw him,
and would ohey the rule, and port her helm in sufficient
time to avoid tlie accident, which it would have been time
enough to do when he first hailed the Mary Bannatyne.
If the St. John had put her helm a- starboard she might
perhaps have avoided the accident, provided the Mary
Bannatyne had kept her course ; but if the Mary Banna-
tyne had' put her helm a-port, as she was bound to do,
the starboarding of the helm of the St. John would only
have rendered the collision more certain. If the St. John
had put her helm further a-port, she would have got into
the wind, and the command over her would have been
lost; nor is it alleged that her so doing would have
avoided the collision : nor indeed was it likely that in the
middle of the night, and in a sudden emergency, any very
delicate manoeuvre could be attempted, or its advantages
or disadvantages calculated.

With respect to the alleged admissions of the master
of the St. John to Mr. Rowbottom and Captain
Vtvughan, after the arrival of the vessel at Quebec,
although as no such admissions were pleaded and it
was therefore irregular to receive evidence of them, yet
it may be observed that the admissions, if made, were
made in a desultory conversation ; and the principal one,
that the accident was as much the fault of one vessel as
the other, is directly contradicted by the evidence on oath
of the person who is said to have made it. With respect
to the admission that he saw the Mary Bannatyne half an
hour before, and could have avoided the accident if he
had altered his course, that is in no respect at variance
with the master's evidence, and its effect has been already
commented upon.

Even admitting, wliich seems probable, that the look-
out man of the Mary Bannatyne was the only person to

FOR LOWER CANADA.

355

blame, and that the ofiicerB and crew did all that could bo
done when they knew the danger, this can make no
difference, for, however much his negligence may be to
be regretted, the ship is clearly responsible for the fault
of her look-out.

It is to be remarked in reference to this point, that it
is admitted on both sides that a considerable number of
vessels were at that time beating up in the neighbourhood
of the two vessels in question. They had crossed each
other in the day-time of the 1 0th, on opposite tacks, and
within the distance of 100 feet; so close, indeed, that the
St. John, being then on the port tack, had to give way to
the Mary Bannatyne ; and it is admitted in the defensive
allegation that the St. John had been seen by the INIaiy
Bannatyne at about half-past 10 p.m. It was, therefore,
almost certain that, when the two vessels went about, —
which they did, and must necessarily have done, within a
few hours afterwards, — they would meet or pass close to
each other ; and it was therefore especially incumbent on
both to keep the best possible look-out, in order to avoid
such an accident as actually occurred. Nothing but a
very great difference in speed and power of working to
windward could prevent their meeting as they did, and no
such difference is shown to have existed, or was likely ;
on the contrary, the vessels appear to have been as neai-ly
as possible equal in speed, and other sailing qualities, as
indeed they were likely to be, being of the same class,
tonnage, and rig. Under these circumstances, nothing
but the utmost possible care could prevent the chance of
collision, and the Mary Bannatyne being the ship which,
in case of a meeting, would be bound to give way to the
other, as being on the port tack, it was more especially
incumbent on her to spare no pains to make her look-out
efficient. From her construction and position it appears
that it was very difficult for any one except a person on
the forecastle to see an approaching vessel, and it would

A A 2

Mart
Bannatynr.

356

Mart
Bannatine.

CASES IN THE VICE-ADMIUALTY COUUT

perhaps have been more prudent to liave had more than
one stationed there.

The decree must therefore be in favour of the owners
of the St. John, and against the Mary Bannatyne.

Stuart and Vaimovous, for the St. John.
Alleyn, for the Mary Bannatyne.

FOB LOWER CANADA.

367

Firiday, 13th October, 1855.
VARUNA— Davies.

Seamen — Wages — Shipping Articles — Description of Voyage —
Mercantile Marine Act of 1850 — Merchant Shipping Act of 1854.

Where seamen shipped for a "voyage from the port of Liverpool
to Constantinople, thence (if required) to any port or places in the
Mediterranean or Black Seas, or wherever freight may offer, with
liberty to call at a port for orders, and until her return to a final port
of destination in the United Kingdom, or for a term not to exceed
twelve months," and the ship went to Constantinople in prosecution
of the contemplated voyage, and then returned to Malta, whence,
instead of going to a final port of destination in the United Kingdom,
she came direct to Quebec in search of freight, which she had failed
to obtain at the ports at which she had previously been, — it was held,
that coming to Quebec could not be considered a prosecution of the
voyage under the 94th section of the Mercantile Marine Act of 1850,
re-enacted by the 190th section of the Merchant Shipping Act of
1854.

The Court this day delivered its opinion in tlie above
cause, to the following effect : —

Judgment. — Hon. Henry Black.

Three suits for wage* having been instituted by seamen
against the ship Varuna, before two Justices of the Peace
for the district of Quebec, the cases have been by the
Justices referred to be adjudged by this Court. These
cases turn purely upon the question whether the men are,
under the 94th section of " The Mercantile Marine Act,
1850," or the 190th section of " The Merchant Shipping
Act, 1854," eirtitled to sue for their wages on the ground
that the voyag*- for which they engaged, and their engage-
ment, have Imcu terminated by the sliip's having, as they
allege, abandoned the voyage mentioned in the articles
of agreement, and commenced another voyage for which

Varuna.

I' i 1

^ti

CASES IN THE VICE-ADMIUALTY COUUT

Vauuna.

III:

ili

they had not agreed. The articles are dated the 2l)th of
March, 1855, and the part material to the present case is
in the following words: — "The several persons whose
names are hereto subscrihed, hereby agree to serve on
board the said ship in the several capacities expressed
against their respective names, an a voyage from the port
of Liverpool to Constantinople, thence {if required) to any
])orts or places in the Mediterranean or Black Seas, or tvherever
freight may offer, tcith liberty to call at a j)ortfor orders, and
until her return to a final port of discharge in the United
Kingdom, or for a term not to exceed tivelrc 'wnf The
ship went to Constantinople in prosecution of the con-
templated voyage, and then returned to Malta, whence,
instead of going to a final port of destination in thf
United Kingdom, she came direct to Quebec, in search of
freight, which she had failed to obtain at the ports at
which she had previously been.

The U4th section of the Mercantile Marine / t, (^^"'O,
is in the following words : — " No seaman who is engaged
for a voyage or engagement which is to terminate in the
United Kingdom, shall be entitled to sue abroad for
wages in any Court or before any justice, unless he be
discharged in the manner required by the General Sea-
men's Act, and with the written consent of the master, or
proves such ill-usage on the part of the master, or by
his authority, as to warrant reasonable apprehension of
danger to the life of such seaman by remaining on board ;
but if any seaman on his return to the United Kingdom
proves that the master or owner has been guilty of any
conduct or .lefault which, but for this enactment, would
have entitled the seaman to sue for wages before the
termination of the voyage or engageme;jt, he shall be
entitled to recover, in addition to his wages, such co«a-
pensation, not exceeding twenty pounds, as the Court of
justice hearing the case, may think reasonable." This
provision is also repeated in the Merchant Shipping Act,

FOR LOWER CANADA.

359

1854, which came into operation on the first of May last.
'1 he contract heing dated before that day, must, I think,
be considered with reference to the former, though it
would, in law, make no difference, as the words of the
two Acts are the same {a).

If the ship's coming to Quebec can, under the Act, be
considered as a prosecution of the voyage under which
these men shipped, then they are not entitled to sue here,
and the case must be dismissed. If, on the contrary, the
ship's coming to Quebec, cannot be held to be a prosecu-
tion of such voyage, then the voyage for which they
engaged, is at an end by the act of tlie master or owners,
and they must recover.

The language used by the legislature with regard to
the description of the voyage, which must be inserted in
the shijjping articles, has been altered several times in
the successive Acts; but the words of the Mercantile
Marine Act, 1850 (13 & 14 Vict., c. 93), which was in
force when the contract was entered into, are, that the
articles shall mention, " the nature, and as far as prac-
ticable, the length of the voyage or engagement on which
the ship is to be employed." The law which came in
force on the first of May last (17 & 18 Vict. c. 104), but
which does not however legally apply to these cases, is
nearly the same. It requires that the agreement shall
contain, " the nature, and, as far as practicable, the dura-
tion of the intended voyage or engagement." A voyage
is a technical phrase, and imports a definite commence-
ment, and end. Ir- the present case, the commencement
was Liverpool, and the end a final port of discharge in
the United Kingdom. But the Act also requires that the
nature of the voyage be stated, and in compliance with
this requii'ement it is described in the articles as to
Constantinople, thence, if required, to any ports and

Varuna.

• I

'M Pi

Sip

(a) 13 c5- 14 Vict. 0. 93, § 94, and 17 & 18 Viot. o. 104, § 190.

360

CASES IN THE VICE -ADMIRALTY COURT

f'i

Vabuna. places in the Mediterranean or Black Seas, or wherever
freight might offer, with liberty to call at a port for orders,
and until her return to a final port of discharge in the
United Kingdom : and as the Act also requires that as far
as practicable the length of the voyage or engagement on
which the ship is to be employed* should be mentioned,
the articles state a term not to exceed twelve months.
The nature of a voyage undoubtedly consists in the place
or places to which it is intended to be made ; and the
instrument in the present instance must be construed
with reference to the description of the voyage given in
it, as well as to the term of twelve months to which that
voyage is to be limited. This term must be construed as
a further limitation to the description of the voyage, and
not as an alternative substituted for the previous descrip-
tion of its nature, authorising a voyage to any part of the
globe to and from which the ship could go arid return in
twelve months. To construe it as such alternative would
be to nullify the previous description of the nature of the
voyage ; which the Act requires as well as its probable
length, showing clearly the intention of the Legislature
that the nature of the voyage was a thing perfectly dis-
tinct from its mere length, and that both length and
nature were of the essence of the contract, and must be
stated. Now, I cannot think that a voyage to Quebec,
through the Gulf of St. Lawrence in the north-western
parts of the Atlantic Ocean, can be considered to be part
of a voyage to a port or ports in the Mediterranean or
Black Sea, in the south-eastern parts of another quarter
of the globe.

The words " or wherever freight may offer," are to be
const, aed with reference to the previous desci'iption of
the voyage, and must be considered as meaning any ports
or places in the two seas named in the articles, or some
place in their immediate neighbourhood, or between them
and the United Kingdom. Lord Stowell's expressions.

■*-■' . FOn LOWER CANADA.

in commenting upon the application of the words " or
elsewhere " in a parallel case, are remarkably apposite.
He observes, that he has no hesitation in asserting, that
they are not to be taken in that indefinite latitude in
which they are expressed ; they are no description of a
voyage ; they are an unlimited description of the navig-
able globe; and are not to be admitted as a universal
alibi for the whole world, including the most remote, and
even pestilential shores, indefinite otherwise both in space
and time ; they must receive a reasonable construction,
which must be, to a certain extent, conformable to the
necessities of commerce. The word " elsewhere " must,
ill its construction, vary much, according to the situation
of the primary port of destination ; if it is applied to a
country remote from all neighbouring settlements, it is
entitled to a larger construction ; if to one that is sur-
rounded by many adjacent ports, the limitation would be
much narrowed : and I cannot help observing here, that
the captain has deprived himself of an extensive latitude,
by describing the primary port to be in the neighbourhood
of many adjacent ports, which could supply cargoes (6).
It appears to me that no reasoning can be more conclu-
sive than this ; and thinking, as I do, that the voyage of
the Varuna to Quebec, is one which cannot come within
the description of the intended voyage for which thq men
agreed, but is a departure from that voyage, and the
substitution of a new and perfectly diff'erent one, by which
departure and substitution the contract between them
and the master is terminated, I am of opinion that the
men are entitled to recover their wages at this port ; and
I accordingly overrule the protest of the master by which
their right so to recover has been contested (c).

Charles Allri/ii, for seamen.
Richard Pope, for ship.

{h) The Minerva, 1 ITagg. 361.
(r) In interpreting the Act of

Parliament the words " nature of
the voyago" must h»ve auch a

861

Vabuna.

ifl

CASES IN THE VICE-ADMIRALTY COUUT

I \

rational construction as to answer
the main and leading purpose for
which they were framed, namely,
to give the mariner a fair intima-
tion of the nature of the service in
which he was about to engage him-
self when he signed the ship's ar-
ticles. Looking at the tenor of the
articles in the present case, I am
of opinion that the terms which
are used give him no intimation
whether he is to winter in the
frozen regions of the north, or
perform an easy service in the
luxurious climate of Naples or
Trieste. I am yet to learn that
such comprehensive ambiguity is
necessary for purposes of trade :
and if not necessary, I cannot
believe that a just construction of
this statute will impose any duch
grievance upon the seaman. I am
not dispo. '>d to narrow its interpre-
tation in cases where the exigence
or convenience of commerce call
for an extended latitude of con-
struction : but I am inclined to

say that this statute does not
warrant an arbitrary extension
of terms not required for the
interest of the owner, yet so
vague and indefinite as to deprive
the mariner of all the benefit
intended to be conferred upon
him, when the legislature or-
dained that some information
should be conveyed to him of
the extent of the obligation into
which he was about to enter. For
these reasons, I am of opinion
that the statute does not confer
upon these articles a validity
which they certainly would not
have possessed if framed before
the statute passed. I must, there-
fore, pronounce sentence in favour
of the claim set up by the mari-
ners in this case, and as a matter
of course, with costs against the
owners. — Dr. Lushington in de-
livering his judgment in the case
of the Westmorland, 1 W. Hob.
228.

FOR LOWER CANADA.

863

Friday, iiGth December, 1856.

THETIS— Watkinson.

If a siiit be brought by a seamen for wages, a settlement without
the concurrence of the promoter's proctor does not bar the claim for
coats ; the Court will inquire whether the arrangement was or was
not reasonable and just, and relieve the proctor if it were not so.

Judgment. — Hon. Henry Black.

There being due to the promoter in this cause a balance
of 60/. 14s. 10c?. sterling, — out of wages amounting to
111^. 4s. sterling, earned on board the ship Thetis, on a
voyage from London to Callao, a sea-port in Peru, thence
to Chinca Islands, thence to Marseilles, thence to Algiers,
thence to Kamiesch, thence to Constantinople, and thence
to Quebec, — he on the 80th August last obtained process
out of this Court, under which the ship was arrested on
the same day. The following day (31st), bail was put in
by the owners ; and an appearance was filed in their name
on the first of September. On the last- mentioned day
the master of the vessel, William Henry Watkinson, took
the promoter to the shipping office at this port, and there
paid him the amount of the wages, and obtained from
him a receipt in the following terms : —

Thetis.

■'4

iii

'■•m i

Quebec, September first, one thousand eight
hundred and fifty-six.
^GO 14s. 10(/. sterling.

I do hereby certify that I, Henry Hali, have received

864

Thetis.

! I

CASES IN TlIK VICE -ADMIRALTY COURT

from Capt. William Henry Watkinson, the sum of seventy-
three pounds eighteen shillings and one penny currency,
being the balance of wages due to me for my services on
board the Thetis, of Goole, and in full of all my demands
up to this date against the said vessel, her master or
owners ; and I hereby certify that I have no claim in any
way whatever against the said vessel, her owners or
master, or whoever it may concern : and I also declare, in
the presence of the witnesses who here fix their signa-
tures to this document or receipt, that I fully understand
the meaning of this " receipt."

Henry Hall.
^£73 18s. Id. currency.

Witnesses,

A. G. Hawkins.
Patk. M'Namara.

The money was paid, and the receipt signed by the
promoter in the absence of his proctor, and without his
knowledge or any notice to him, and the costs of the suit
not being paid, the suit has been continued for the costs ;
and the only question argued before the Court is, whether
under the circumstances, the owners of the ship were or
were not liable for the costs ; and whether they can or
cannot claim to be released from their bail bond, or
recognisance, without paying the costs of the promoter.
The master has not been examined to prove the circum-
stances under which the receipt was given ; and the sub-
scribing witnesses prove nothing more than the signature
to the receipt, which, it appears by the evidence, the
master produced in the shipping office, and, it would
seem, he had about him, ready prepared, and written out.
The owners, in their plea, allege that the promoter, at
the time of signing tii? receipt, undertook to pay his
own costs ; but no evidence of this fact has been given.

FOH LOWEU CANADA.

805

He was clearly entitled to his costs, as well as the
wages, and obliging him to pay his own costs was,
in fact, deducting so much from his wages. Nor
is there anything in the receipt upon the subject of
costs which can be fairly considered as an undertaking
to pay the costs. The word " costs " does not even
occur; nor, if the word had been used, or even if
the agreement to pay the costs had been proved, does
it appear that it would affect the more general question,
whether the right of the proctor to avail himseK of
the recognisance, as security for his costs, could have
been lost by the mere act of the client, to which the
proctor was not a party, and of which he was not
informed.

Seamen are a needy and transient class, and the
remedy of the proctor against the promoter only, without
recourse against the vessel or its owners, would be wholly
illusory. To deprive him of his recourse, under the recog-
nisance, would in reality be to deprive him of his fees, as
well as of any disbursements he might incur; and it
would be inconsistent with every principle of equity that
he should lose this recourse, except by his own consent,
or by some laches on his part ; and neither such consent,
nor such laches appear. In courts of civil law the parties
themselves have strictly no authority over the cause after
their regular appearance by an attorney or proctor. The
attorney or proctor is so far regarded as the dominus litis
that no proceeding can be taken, except by him or by his
written consent, until a final decree or revocation of his
authority. In actions by seamen especially, who are an
uneducated and needy class, the promoters are regarded
as essentially under tutelage, every dealing with them
personally by the adverse party in respect of their suits,
is scrutinised by the Court with great distrust. Lord
Sfowell declares that negotiations with seamen, even
before suit brought, are conducted more to the satisfac-

THETIS.

Thetis.

CASES IN TIIE VTCE-ADMmAIiTY COURT

tion of the Court, when entnisted to their proctors (flr).
Masters and owners are generally shrewd, business men,
well informed as to their rights and those of the party
with whom they deal, and have ample means of obtaining
advice, if they require it; while seamen are generally
uninformed as to their rights, and being unable, from
want of means, to retnain inactive at the port where their
suit may be pending, are naturally eager to effect a settle-
ment, which will enable them to pursue their ordinary
occupation, and very unlikely to consider the interest of
their proctors, whom they perhaps never expect again to
see, after such settlement. Personal recourse against
them is absolutely nugatory, even if it were possible to
find them, which it very seldom is ; and if a settlement
with them were allowed to affect the costs incurred on
their behalf, it would happen in almost every case, where
the suit was likely to go in their favour, that the opposite
party would compromise with them, and cheat their proc-
tors, and the officers of the Court.

Under these circumstances, even if the receipt had
expressly mentioned costs, the Court would have felt
bound to take into consideration the question whether the
arrangement was or was not reasonable and just, and to
relieve the proctor if it were not. But, it will be observed,
that the receipt is so framed as to avoid bringing before
the mind of the seaman the distinct question of costs, or
his personal obligation to pay his proctor, which he would
probably have refused to assume if distinctly proposed
to him. The receipt was evidently framed by some person
who endeavoured to embrace the question in general
terms, and to avoid bringing it prominently or distinctly
forward, so as to arrest the attention of the party who had
to sign it. Considering therefore that the receipt did not
release the claim for costs, or if it did, that it was fraudu-

(rt) The Frederick, Hearn. 1 Hag. 220.

FOR LOWER CANADA.

367

lently obtained from the promoter, without the knowledge
or consent of his proctor, and without payment or tender
of the taxable costs due in the suit, I condemn the owners,
and the bail given on their behalf, to answer the action,
in costs.

TlIRTIS.

G'Farrell, for seaman.
Hearn, for owners.

l!i'

«i

IMAGE EVALUATION
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Sciences
Corporalion

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33 WIST MAIN STRUT

WltSTn,N.Y. MSN

(716)172-4503

APPENDIX.

CONTENTS.

A. — Commission of Vice -Admiral, under the great seal of the High
Court of Admiralty of England, to James Murray, Captain-
General and Governor-in-Chief in and over the Province of
Quebec, in America, dated 19th March, 1 764.

B. — Commission under the great seal of the High Court of Admiralty
of England, appointing Henry Black, Judge of the Vice- Admi-
ralty Court for Lower Canada, dated 27th October, 1838.

C. — Commission under the great seal of Great Britain, for the trial of
offences committed within the jurisdiction of the Admiralty of
England, dated 30th October, 1841.

D, — The following oases decided by Mr. Kerr : —
Case of the Camillus.
Case of the Coldstream.

E. — The several Commissions, in Continuation of the above Commis-
sion of Vice-Admiral, down to the present time, with their
respective dates.

F. — The several Judges of the Vice- Admiralty Court, since the cession
of the country to the Crown of Great Britain.

>f-

a 70

APPENDIX.

Commission to
be vice-admi-
ral, commis-
sary, and
deputy iu the
office of vice-
admiralty in
the province of
Quebec

To what places
vice-admiral's
jurisdiction
shall extend.

In what causes.

Between what

persons.

(A)

COMMISSION OF VICE-ADMIRAL.

George the Third, by the Grace of God, of Great Britain, France,
and Ireland, King, Defender of the Faith, To our beloved James
Murray, Esquire, our Captain- General and Governor-in- Chief
in and over our Province of Quebec, in America, — greeting.

We, confiding very much in your fidelity, care, and circumspection
in this behalf, do, by these presents, which are to continue during
our pleasure only, constitute and depute you, the said James Murray,
Esquire, our Captain-General and Govemor-in-Chief aforesaid, our
Vice-Admiral, Commissary, and Deputy in the Office of Vice- Admi-
ralty in our Province of Quebec aforesaid, and territories thereon
depending, and in the maritime parts of the same and thereto adjoin-
ing whatsoever ; with power of taking and receiving all and every
the fees, profits, advantages, emoluments, commodities, and appurte-
nances whatsoever due and belonging to the said office of vice-
admiral, commissary and deputy in our said province of Quebec,
and territories depending thereon, and maritime parts of the same
and adjoining to them whatsoever, according to the ordinances and
statutes of our High Court of Admiralty in England.

And we do hereby remit and grant unto you, the aforesaid James
Murray, Esquire, our power and authority in and throughout our
province of Quebec afore-mentioned, and territories thereof, and
maritime parts whatsoever of the same and thereto adjacent, and also
throughout all and every the sea-shores, public streams, ports, fresh-
water rivers, creeks, and arms as well of the sea as of the rivers and
coasts whatsoever of our said province of Quebec, and territories
dependent thereon, and maritime parts whatsoever of the same and
thereto adjacent, as well within liberties and franchises as without ;
to take cognizance of, and proceed in, all causes civil and maritime,
and in complaints, contracts, offences, or suspected offences, crimes,
pleas, debts, exchanges, accounts, charter-parties, agreements, suits,
trespasses, injuries, extortions, and demands, and business, civil and
maritime whatsoever, commenced or to be commenced between mer-
chants, or between owners and proprietors of ships and other vessels,
and merchants or others whomsoever with such owners and proprie-
tors of ships and all other vessels whatsoever employed or used within
the maritime jurisdiction of our vice-admiralty of our said province
of Quebec, and territories depending on the same, or between any

AITKNDIX.

371

other persons whomsoever, had, made, begun, or contracted, for any
matter, thing, cause, or business whatsoever, done or to be done
within our maritime jurisdiotiou aforesaid, together with all and
singular their incidents, emergencies, dependencies, annexed or cou-
nexed causes whatsoever, or howsoever ; and such causes, complaints,
contracts, and other the premises above said, or any of them, which
may happen to arise, be contracted, liad, or done, to hoar and deter-
mine according to the rights, statutes, laws, ordinances, and customs
anciently observed.

And moreover, in all and singular complaints, contracts, agree-
ments, causes, and business, civil and maritime, to be performed
beyond the sea, or contracted there, howsoever arising or happening ;
and also in all and singular other causes and matters, which in any
manner whatsoever touch or any way concern, or anciently liave and
do, or ought to, belong unto the maritime j urisdiction of our aforesaid
vice-admiralty in our said province of (iuebeo, and territories tliereon
depending, and maritime parts thereof and to the same adjoining
whatsoever ; and generally in all and singular all other causes, suits,
crimes, offences, excesses, injuries, complaints, misdemeanors, or
suspected misdemeanors, trespasses, regrating, forestalling, and
maritime businesses whatsoever, throughout the places aforesaid
within the maritime jurisdiction of our vice-admiralty of our pro-
vince of Quebec aforesaid, and territories thereon depending, by sea
or water, or the banks or shores of the same, howsoever done, com-
mitted, perpetrated, or happening.

And also (o inquire by the oaths of honest and lawful men of our
said province of Quebec, and territories dependent thereon, and mari-
time parts of the same and adjoining to them whatsoever, dwelling
both within liberties and franchises and without, as well of all and
singular ./ach matters and things which of right, and by the statutes,
laws, ordinances, and customs anciently observed were wont and
ought to be inquired after, as of wreck of the sea, and of all and
singular the goods and chattels of whatsoever traitors, pirates, man-
slayers, and felons howsoever offending within the maritime juris-
diction of our vice -admiralty of our province of Quebec afore-men-
tioned, and territories thereunto belonging, and of the goods, chattels,
and debts of all and singular their maintainors, accessaries, coun-
sellors, abettors, or assistants whomsoever.

And also of the goods, debts, and chattels of whatsoever person or
persons felons of themselves, by what means or howsoever coming to
their death within our aforesaid maritime j urisdiction, wheresoever
any such goods, debts, and chattels, or any part thereof, by sea,
water, or land in our said province of Quebec, and territories thereon
dependent, and maritime parts of the same and thereto adjacent
whatsoever, as well within liberties and franchises as without, have
been or shall be found forfeited, or to be forfeited, or in being.

B B 2

To inquire by a
jury of sudi
matters as of
rigiit, and by
ancient laws
and usages,
ouglit to be in-
quired of.
And of wreck
of the sea, and
the goods of
traitors and
felons ;

And of the
gortds of felons
of themselves.

3 1
'}i 'I

«72

Al'PENDIX.

Also of goods
waived, flotson,
jetson, lagon,
deodands, dere-
licts, and other
casualties, upon
the sea, or
sea-coasts,
or fresh -water
rivers as far as
the tide flows.

Also of anchor-
age, lastage,
ballast, and
fishes royal.

Power to re-
ceive and pre-
serve to the
King's use all
the profits
above-men-
tioned ; and
all fines im-
posed by any
court of admi-
ralty held in
this province,
and recogniz-
ances forfeited
therein.

And moreover, as well of the goods, debts, and chattels of whatso-
ever other traitors, felons, and manslayers wheresoever offending,
and of the goods, debts, and chattels of their maintainors, accessaries,
counsellors, abettors, or assistants, as of the goods, debts, or chattels
of all fugitives, persons convicted, attainted, condemned, outlawed,
or howsoever put, or to be put, in exigent for treason, felony, man-
slaughter, or murder, or any other ofiPence or crime whatsoever ; and
also concerning goods waived, flotson, jetson, lagon, shares and trea-
sure found or to be found ; deodands, and of the goods of all others
whatsoever taken or to be taken as derelict, or by chance found, or
howsoever due or to be due ; and of all other casualties, as well in,
upon, or by the sea and shores, creeks or coasts of the sea or maritime
parts, as in, upon, or by all fre«V waters, ports, public streams,
rivers, or creeks, or places irflown whatsoever within the
ebbing and flowing of the sea or high water, or upon the shores
and banks of any of the same within our maritime jurisdiction
aforesaid, howsoever, whensoever, or by what means soever arising,
happening, or proceeding, or wheresoever such goods, debts, and
chattels, or other the premises, or any parcel thereof, may or shall
happen to be met with or found within our maritime jurisdiction
aforesaid.

And also, concerning anchorage, lastage, and ballast of ships, and
of fishes royal, namely, sturgeons, whales, porpoises, dolphins, kiggs,
and grampusses, and generally of all other fishes whatsoever which
are of a great or very large bulk or fatness, anciently by right, or
custom, or any way appertaining or belonging to us.

And to ask, require, levy, take, collect, receive, and obtain for the
use of us, and to the ofiit e of our high admiral of Great Britain afore-
said for the time being, to keep and preserve the said wreck of the
sea, and the goods, debts, and chattels of all and singular other the
premises, together with all and all manner of fines, mulcts, issues,
forfeitures, amerciaments, ransoms, and recognizances whatsoever,
forfeited, or to be forfeited, and pecuniary punishments for trespasses,
crimes, injuries, extortions, contempts, and other misdemeanors
whatsoever, howsoevir imposed or inflicted, or to be imposed or
inflicted, for any matter, cause, or thing whatsoever in our said
province of Q,uebec, and territories thereunto belonging, and mari-
time parts of the same and thereto adjoining, in any court of our
admiralty there hold, or to be held, presented or to bo presented,
assessed, brought, forfeited, or adjudged ; and also all amerciaments,
issues, fines, perquisites, mulcts, and pecuniary punishments whatso-
ever, and forfeitures of all manner of recognizances, before you or
your lieutenant, deputy, or deputies, in our said province of Quebec,
and territories thereunto belonging, and maritime parts of the same
and thereto adjacent whatsoever, happening, or imposed, or to be
imposed or inflicted, or by any means assessed, presented, forfeited.

APPENDIX.

873

or adjudged, or howsoever, by reason of the premises, due or to be
due in that behalf to us, or to our heirs and successors.

And further, to take all manner of recognizances, cautions, obliga-
tions, and stipulations, as well to our use as at the instances of any
party, for agreements, or debts, or other causes whatsoever, and to
put the same into execution, and to cause and command them to be
executed ; and also to arrest, and cause and command to be arrested,
according to the civil and maritime laws and ancient customs of our
said court, all ships, persons, things, goods, wares, and merchandises,
for the premises, and every of them, and for other causes whatsoever
concerning the same, wheresoever they shall be met with or found
throughout our said province of Quebec, and territories thereunto
belonging, and maritime parts thereof and thereto adjoining, as well
within liberties and franchises as without ; and likewise for all other
agreements, causes, or debts, howsoever contracted or arising, so that
the goods, or persons maybe found within our jurisdiction aforesaid.

And to hear, examine, discuss, and finally determine the same,
with their emergencies, dependencies, incidents, annexed and con-
nexed causes and businesses whatsoever, together with all other
causes, civil and maritime, and complaints, contracts, and all and
every the respective premises whatsoever above-expressed, according
to the laws and customs aforesaid, and by all other lawful ways,
means and methods, according to the best of your skill and knowledge.

And to compel all manner of persons in that behalf, as the case
shall require, to appear and to answer, with power of using any
tempo il correction, and of inflicting any other penalty, or mulct,
according to the laws and customs aforesaid.

And to do and administer justice according to the right order and
course of the law, summarily and plainly, looking only into the truth
of the facts.

And to fine, correct, punish, chastise, retorm, and to imprison, and
cause and command to be imprisoned, in any gaols, being within our
province of Quebec aforesaid, and territories thereunto belonging, the
parties guilty, and the contemners of the law and jurisdiction of our
admiralty aforesaid, and violaters, usurpers, delinquents, and contu-
macious absenters, masters of ships, mariners, rowers, fishermen,
shipwrights, and other workmen and artificers whatsoever, exercising
any kind of maritime affairs, according to the rights, statutes, laws,
and ordinances, and customs ancier ly observed ; and to deliver and
absolutely discharge, and cause and command to be discharged, what-
soever persons imprisoned in such cases, who are to be delivered.

And to preserve, or cause to be preserved, the public streams, ports,
rivers, fresh waters, and creeks whatsoever, within our maritime
jurisdiction aforesaid, in what place soever they be in our province of
Quebec aforesaid, and territories thereunto belonging, and maritime
parts of the same and thereto adjacent whatsoever, as well for the

And to take in

recognizances iH

and bonds, |fij

either for the |fl

King's nse, or la|

that of private ■■

Bu1)jcct.s ; In

and to award ^. ffl

execution n\»m ,' m

them ; and to , .j m

arrest sliips, !|1|

goods, and per- f jSI

sons for onuses ; M

arising within / m

the muritime | ^al
jurisdiction. ; M

And to hear | il

and determine f i|

the said causes, H

with all the |

matters inci- i '|

dent thereto. jflr

And to compel i'f
persons to ;[ a

appear and J ;' M

answer. ., M
And to fine and ' \

to imprison, in :-Lm
any of the gaols ' ;|'|J
of the province, sJ ffl

the parties that mm

shall be found | ffl

guilty : ym

And to deliver 4 1

and discharge »i

from prison >K |

persons impri- *|

soned for the iffll

same when they inp

ought to be so H^

discharged : ' M

And to preserve ] 1

puiilic streams, - m

ports and ' 1

rivers. i;| 1

374

APPENDIX.

And to reform
nets that are
too close, and
other unlawful
engines for
catching fish.
And to punish
those who
make use of
them.

And to pro-
nounce sen-
tences in all
causes relatinar
to the sea, and
put the same
in execution.

And to proceed
in the said
causes as well
of mere office
as at the in-
stance of
parties.

And to have
cognisance
of wreck of the
sea, and view
of dead bodies
of persons
coming to their
deaths upon
the sea or
within the
maritime
jurisdiction.

And to have
cognizance of
mayhem within
the maritime
jurisdiction.

preservation of our navy royal, and of the fleets and vessels of our
kingdom and dominions aforesaid, as of whatsoever fishes increasing
in the rivers and places nfuresuid.

And also to keep, and cause to be executed and kept, in our said
province of Quebec, and territories thereunto belonging, and maritime
parts thereof and thereto adjacent whatsoever, the rights, statutes,
laws, ordinances, and customs anciently observed.

And to do, exercise, expedite, and execute all and singular other
things in the premises, and every of them, as they by right, and
according to the laws and statutes, ordinances und customs aforesaid,
should be done.

And moreover, to reform nets too close, and other unlawful engines
or instruments whatsoever for the catching of fishes wheresoever, by
sea, Of public streams, ports, rivers, fresh waters, or creeks what-
soever, throughout our province of Quebec aforesaid, and territories
depending thereon, and maritime parts of the same and thereto adja-
cent, used or exercised within our maritime jurisdictions aforesaid
wheresoever. And to puniiih and correct the exercisers and occupiers
thereof, according to the statutes, laws, ordinances, and customs
aforesaid.

And to pronounce, prcmulge, and interpose all manner of sentences
and decrees, and to put the same in execution ; with cognizance and
jurisdiction of whatsoever other causes, civil and maritime, which
relate to the sea, or which any manner of ways respect or concern tho
sea, or passage over the same, or naval or maritime voyages, or our
said maritime jurisdiction, or the places or limits of oiir said admi-
ralty, and cognizance afore-mentioned, and all other things done or
to be done.

With power also to proceed in the same, according to the statutes,
laws, ordinances, and customs aforesaid anciently used, as well of
mere oiEce mixt or promoted, as at the instance of any party, as the
case shall require and seem convenient ; and likewise with cognizance
and decision of wreck of the sea, and of the death, drowning, and
view of dead bodies of all persons howsoever killed, or drowned, or
murdered, or which shall happen to be killed, drowned, or murdered,
or by any other means come to their death in the sea or public streams,
ports, fresh waters, or creeks whatsoever, within the flowing of the
sea and high- water mark throughout our aforesaid province of Quebec,
and territories thereunto belonging, and maritime part of the same
and thereto adjacent, or elsewhere within our maritime jurisdiction
aforesaid.

Together with the cognizance of mayhem in the aforesaid places,
within our maritime jurisdiction aforesaid, and flowing of the sea
and ViTuter there happening ; with power also of punishing all delin-
quents in that kind according to the exigencies of the law and cus-
toms aforesaid.

APPENDIX.

375

And to do, exercise, expedite, and execute all and singular other
things which in and about the premises only shall bo necessary or
thought meet, according to the rights, statutes, laws, ordinances, and
customs aforesaid.

With power of deputing and surrogating in your place for the
premises one or more deputy or deputies, as often as you shall think
fit ; and also with power from time to time of naming, appointing,
ordaining, assigning, making, and constituting whatsoever other
necessary, fit, and convenient officers and ministers under you for the
said office and execution thereof in our said province of Quebec, and
territories thereunto belonging, and maritime parts of the same and
thereto adjacent whatsoever.

Saving always the right of our High Court of Admiralty of England,
and also of the judge and registrar of the said court, from whom or
either of them it is not our intention in anything to derogate by these
presents ; and saving to every one who shall be wronged or grieved
by any definitive sentence or interlocutory decree which shall be given
in the Vice- Admiralty Court of our province of Quebec aforesaid, and
territories thereunto belonging, the right of appealing to our aforesaid
High Court of Admiralty of England.

Provided, nevertheless, and under this express condition, that if
you, the aforesaid James Murray, Esquire, our Captain-General and
Governor-in-Chief, shall not yearly (to wit), at the end of every year,
between the feasts of St. Michael the archangel and All Saints, duly
certify, and cause to be effectually certified (if you shall be thereunto
required), to us, and our lieutenant official, principal, and commissary
general and special, and judge and president of the High Court of our
Admiralty of England aforesaid, all that which from time to time by
virtue of these presents you shall do and execute, collect, or receive
in the premises, or any of them, together with your full and faithful
account thereupon, to be made in an authentic form, and sealed witli
the seal of our office remaining in your custody, that from thence and
after default therein these our letters patent of the office of vice-
admiralty aforesaid, as above granted, shall be null and void, and of
no force or eft'ect.

Further we do, in our name, command all and singular our gover-
nors, justices, mayors, sheriff's, captains, marshals, bailiffs, keepers
of all our gaols and prisons, constables, and all other our officers and
faithful liege subjects whatsoever, and every of them, as well within
liberties and franchises as without, that in and about the execution
of the premises, and every of them, they be aiding, favouring, assist-
ing, submissive, and yield obedience in all things as is fitting to you,
the aforesaid James Murray, Esquire, our Captain-General and Gover-
nor-in-Chief of our province of Quebec aforesaid, and to your deputy
whomsoever, and to all other officers by you appointed, and to be
appointed, of our said vice-admiralty in our province of Quebec afore-

Power to make
one or more
deputies and
to appoint
inferior otiicers.

Saving the
riglit of the
High Court of
Admiralty; and
saving the
right of ap-
pealing thereto
from any sen-
tence of the
Court of Vice-
Admiralty
at Quebec.

Proviso that
the vice-admi-
ral sliall yearly
certify under
the seal of his
office the pro-
ceedings had in
his court to the
judge uf tlie
High Court of
Admiralty,
And upon
default made
herein these
letters patent
shall be void.

All officers,
civil and mili-
tary, and all
other sulyects
whatsoever, are
enjoined to be
assisting to the
vice-admiral
and his depu-
ties iu the
ex^jcution of
this office.

876

APPENDIX.

said, and territories thereunto belonging, and maritime parts of the
same and thereto adjoining, under pain of the law, and the peril
which will fall thereon.

Given at London in the High Court of our Admiralty of England
aforesaid, under the Great Seal thereof, the nineteenth day of March
in the year of our Lord, one thousand seven hundred and sixty-four
and of our reign the fourth.

(Signed) GODF. LEE TARRANT,

Registrar.

(B)
LETTERS PATENT APPOINTING JUDGE.

Victoria, by the Grace of Ood, of the United Kingdom of Great
Britain and Ireland, Queen, Defender of the Faith. To Our
well beloved Henry Black, Esq., — Greeting.

We do by these presents, make, ordain, nominate, and appoint you,
the said Henry Black, to be our commissary in our Vice- Admiralty
Court, in our province of Lower Canada, in America, and territories
thereunto belonging. And we do hereby grant unto you full power to
take cognizance of, and proceed in, all causes civil and maritime, and
in complaints, contracts, offences, or suspected offences, crimes, pleas,
debts, exchanges, policies of assurances, accounts, charter parties,
agreements, bills of lading of ships, and all matters and contracts,
which in any manner whatsoever relate to freight due for ships hired
and let out, and transport money or maritime usury, otherwise
bottomry, or which do any ways concern suits, trespasses, injuries,
extortions, demands, and affairs civil and maritime whatsoever,
between merchants, or between owners and proprietors of ships or
other vessels, and merchandises, or other persons whomsoever, with
such owners and proprietors of ships and all other vessels whatso-
ever, employed or used, or between any other persons howsoever,
had, began, made or contracted, for any matter, cause or thing,
business or injury whatsoever, done or to be done as well in, upon
or by the sea or public streams, fresh waters, ports, rivers, creeks
and places overflowed whatsoever, within the ebbing and flowing of
the sea, or high water mark, as upon any of the shores or banks ad-
joining to them or either of them, together with all and singular
their incidents, emergents, dependencies, annexed and connexed
causes whatsoever: — and such causes, complaints, contracts, and
other the premises aforesaid, or any of them, howsoever the same

APPENDIX.

377

may happen to arise, be oontraotcd, had or done, to hear and dctet'
mine according to the civil and maritime laws and customs of our
High Court of Admiralty of England, in our said provinco of Lower
Canada , and maritime parts of the same, and thereto adjacent
whatsoever. And also with power to sit and hold courts in any
cities, towns and places in our provinco of Lower Canada aforesaid,
for the hearing and dcterminiug of all such causes and businesses,
together with all and singular their incidents, emergencies, and
dependencies, onnexed and connexed causes whatsoever, and to pro-
ceed judicially and according to law in administering justice therein ;
and moreover, to compel witnesses, in case they withdraw themselves
for interest, fear, favour, or ill-will, or any other cause whatsoever,
to give evidence to the truth in all and every causes above-men-
tioned, according to the exigencies of the law. And further, to take
all manner of recognizances, cautions, obligations, and stipulations,
as well to our use as at the instance of any parties, for agreements
or debts, or other causes and businesses whatsoever, and to put the
same in execution, and to cause and command them to be executed.
And duly to search and enquire of and concerning all goods of
traitors, pirates, manslayers, felons, fugitives, and felons of them-
selves, and concerning the bodies of persons drowned, killed, or by
any other means coming to their death in the sea, or in any ports,
rivers, public streams, or creeks, and places overflowed, and also
concerning mayhem happening in the aforesaid places, and engines,
toils, and nets prohibited and unlawful, and the occupiers thereof.
And moreover, concerning lishes royal, namely : whales, kiggs,
grampuses, dolphiiis, sturgeons, and all other fishes whatsoever
which are of a great and very large bulk or fatness, by right or
custom any ways used, belonging to us and to the office of our high
admiral of England ; and also of and concerning all casualties at
sea, goods wrecked, flotson, jetson, lagon, shares, things cast over-
board, and wreck of the sea, and all goods taken and to be taken
as derelict, or by chance found or to be found, and all other tres-
passes, misdemeanors, offences, enormities and maritime crimes
whatsoever done and committed, or to be done and committed, as well
in and upon the high sea, as in all ports, rivers, fresh waters and
creeks and shores of the sea to high-water mark, from all first bridges
towards the sea, in and throughout our said province of Lower Canada,
and maritime coasts thereof, and thereunto belonging, howsoever
whensoever, or by what means soever arising or happening. And all
such things as are discovered and found out, as also all fees, mulcts,
amerciaments, and compositions due and to be due in that behalf, to
tax, moderate, demand, collect, and levy, and to cause the same to be
demanded, levied and collected, and according to law to compel
and command them to be paid. And also to proceed in all and
every the causes and businesses above recited, and in all other con-

878

APPENDIX.

tracts, causes, contempts, and offences whatsoever, howsoever con-
tracted or arising, so that the goods or pcvsons of the debtors may
be found within tho jurisdiction of the Vice-Admiralty Court in
our province of Lower Canada at'orcHaid, according to the civil and
maritime laws and customs of our said High Court of Admiralty of
England anciently used, and by all other lawful ways, means, and
methods, according to the best of your skill and knowledge ; and
all such causes and contracts to hear, examine, discuss, and finally
determine, (saving nevertheless the right of appealing to us in
Council, and saving always the right of our said High Court of
Admiralty of England, and of the judge and registrar of our said
court, from whom or either of them it is not our intention in any
thing to derogate by these presents), and also to arrest, and cause
and command to be arrested all ships, persons, things, goods, wares,
and merchandises for the premises, and every of them, and for other
causes whatsover concerning the same, wlieresoever they shall be met
with or found within our province of Lower Canada, aforesaid, and
maritime parts thereof, either within liberties or without, and to
compel all manner of persons in that behalf, as the case shall require,
to appear ?.nd to answer ; with power of using any temporal coercion,
and of inflicting any other penalty or midct, according to the laws
and customs aforesaid, and to do and minister justice according to
the right order and course of the law, summarily and plainly, looking
only into the truth of the fact. And we empower you in this
behalf to fine, correct, punish, chastise and reform and imprison,
an<\ cause and command to be imprisoued in any gaol, being within
our province of Lower Canada, aforesaid, and maritime parts of the
same, the parties guilty and violators of the law and jurisdiction of
our Admiralty aforesaid, and usurpers, delinquents, and contuma-
cious absenters, masters of ships, mariners, rowers, fishermen, ship-
wrights, and other workmen and artificers whomsoever, exercising
any kind of maritime affairs, as well according to the afore-mentioned
civil and maritime laws and ordinances and customs aforesaid, and
their demerits, as according to the statutes and ordinances aforesaid,
and those of our TJnited Kingdom of Great Britain and Ireland, for
the Admiralty o{ England in that behalf made and provided. And
to deliver nnd absolutely discharge, and command to be discharged
whatsoever other persons imprisoned in such cases, who are to be
delivered, and to promulge and interpose all manner of sentences
and decrees, and to put the same in execution ; with cognizance
r.nd jurisdiction of whatsoever other causes, civil and maritime,
which relate to the sea, or which in any manner of ways respect or
concern the sea or passage over the same, or naval or maritime
voyages performed or to be performed, or the maritime jurisdiction
aforesaid ; with power also to proceed in the same, according to the
civil and maritime laws and customs of our aforesaid court anciently

APPRNIUX.

879

iisod, as well those of mere office, mixed or promoted, as at the
instance of any party, as the case shall require and seem convenient.
And we do by these prcsonts, which are to continue during our royal
will and pleasure, only further give and grant unto you Henry IJluok,
our said Commissary, the power of taking and receiving all and every
the wages, fees, profits, advantages, and commodities whatsoever, in
any manner duo and anciently belonging to the said office, according
to the customs of our High Court of Admiralty of England ; commit-
ting unto you our power, authority, concerning all and singular the
premises in the several places above expressed, (saving in all things
the prerogative of our High Court of Admiralty of England, aforesaid ;)
together with power of deputing and surrogating in your place, for
and concerning the premises, one or more deputy or depaties: pro-
vided always, that the power of deputing and surrogating one or
more deputy or deputies in your place aud stead, shall only be exer-
cised on good and sufficient oause shown, md that cause to be
approved by our captain general and governor iu chief in and over
our said province of Lower Canada, or lieutenant governor, or the
officer administering the government of "nr said province fo3 the time
being. And further, we do in our nuuie command, -xud firmly and
Btriotly charge all and singular our governors, ;l^ml.^anders, justices
of the peace, mayors, oheriffs, marshals, keepers of all our gaols and
prisons, bailiffs, constables, and all other our oflicers and ministers and
faithful and liege subjects, in and throughout onr aforesaid province
of Lower Canada, and the maritime parts of the same and thereto
adjacent, that in the execution of this our commission they be, from
time to time, aiding, assisting, and yield obedience in all things, as
is fitting unto you and your deputy whomsoever, under pain of the
Law and the peril which will fall thereon.

Given at London, in the High Court of the Admiralty of England
aforesaid, under the Great Seal thereof, the twenty-seventh day of
October, in the year of Our Lord, one thousand eight hundred and
thirty-eight, and of our reign the second.

ARDEN, Registrar.

■hi

380

APPENDIX.

(C)

COMMISSION FOR THE TRIAL OF OFFENCES COMMITTED
WITHIN THE ADMIRALTY JURISDICTION.

Victoria, by the Grace of God, of the United Kingdom of Great
Britain and Ireland, Queen, Defender of the Faith.

To our governor general of our provinces in North America, and to
our governor general of our said provinces for the time being, to our
governor of our province of Canada, and to the governor of our said
province for the time being, to our lieutenant governor of our said
province, and to our lieutenant governor or the officer administering
the government of our said province for the time being, to the
president and several members of the executive council of our said
province, and to the president and several members of the said
council for the time being, to our chief j ustice of that part of the
province of Canada, called Lower Canada, and to the chief justice of
Lower Canada for the time being, to the judges of our court of
Queen's Bench for the district of Quebec, in our said province,
and to the judges of our court of Queen's Bench, for the district
of Quebec, in our said province, for the time being, to the judge
of the court of Vice Admiralty for our said province, and to the
judge of the said court for the time being, to the public secretary
of the said province, and to the public secretary of the said
province for the time being, to the public treasurer of the
said proviT'-ce, and to the public treasurer of the said province
for the time being, to our commander in chief, and to the
several flag officers of such squadron of our ships of war as shall
happen to be in any of the ports or roadsteads of our said province,
for the time being, and to our several captains and commanders of
such our ships of war as shall happen to be in any of the ports or
roadsteads of our said province for the time being, and to each and
every of them, greeting : Whereas, by an Act made in the twtnty-
28 H. 8, e. 16. eighth year of the reign of King Henry the Eighth, intituled, " An
Act for punishment of pirates and robbers of the sea ;" which Act is
extended and explained by three other Acts, the first made in the
thirty-ninth year of the reign of King George the Third, intituled,
'* An Act for remedying certain defects in the law respecting offences
committed upon the high seas ;" the second made in the forty-third
year of the reign of King George the Third, intituled, " An Act for
tlie more eftcctually providing for tlie punishment of offences in

39 Geo. 3, c
37.

43 Geo. 3, c
113.

APl'KNDIX.

381

wilfully casting away, burning or destroying ships and vessels, and
for the more convenient trial of accessaries in felonies ; and for
extending the powers of an Act made in the thirty-third year of the
reign of King Henry the Eighth, as far as relates to murders, to acces-
saries to murders, and to manslaughters ;" and the third made in the
first year of the reign of King George the Fourth, intituled, *' An Act i Geo. 4, c.
to remove doubts, and to remedy defects in the law, with respect to ^0.
certain ofience? committed upon the sea, or within the jurisdiction
of the admiralty ;"— certain powers and authorities touching all
treasons, felonies and other crimes and misdemeanors committed in
or upon the sea, or in any haven, river, creek, or place, where the
admiral has power, authority, or jurisdiction, are given to certain
commissioners constituted as therein provided, after the course of the
common law of this our realm to inquire, try and determine the same
within this our realm : and whereas, by another Act made in the
forty-sixth year of the reign of King George the Third, intituled,
" An Act for the more speedy trial of offences committed in distant 46 Geo. 3, c.
parts upon the sea," the like powers and authorities, touching all ^^•
offences so committed as aforesaid, are given also to certain other
commissioners constituted as by the said last mentioned Act is
provided, after the course of the common law to inquire, try and
determine the same in any of our islands, plantations, colonics,
dominions, forts and factories : and whereas, by another Act made ip.
the fifth year of the reign of King George the Fourth, intituled, "An 5 Geo. 4, c.
Act to amend and consolidate the laws relating to the abolition of the 113.
slave trade," the commissioners constituted according to the said Act
of the forty-sixth year of the reign of King George the Third are
invested with the like powers and authorities to inquire of, try and
determine all offences against the said Act of the filth year of the
reign of King George the Fourth, which shall be committed in any
place where the admiral has not jurisdiction, and not being within
this our United Kingdom, nor within the local jurisdiction of any
ordinary court of a British eolonj', settlement, plantation, or territory
competent to try such offences : and whereas, by another Act made in
the seventh year of the reign of his M ajesty King George the Fourth, >, (jg^ ^ ^ gg^
intituled, " An Act to enable commissioners for trying offences upon
the sea and justices of tlie peace to take examinations touching such
offences, and to commit to safe custody peisons charged therewith,"
certain powers and directions are given to any one or more of the com-
missioners c instituted according to the said Act of the forty-sixth year
of the reign of King George the Third, to take informations on oath,
and to apprehend and commit or bail the parties charged. Know ye,
thceforp, that we, confiding very much in your fidelity and careful
circumspection, have appointed you, or any one of you, our commis-
sioners or commissioner to take such informations, and to apprehend
and commit or bail such persons, under such circumstances and in

383

APPENDIX.

suoh manner as by the said Act of the seventh year of the reign of his
Majesty King George the Fourth is provided in that behalf ; and
have also appointed you, or any three of you (of which number our
will and pleasure is that our said governor general, governor, lieu-
tenant governor or other officer administering the said government,
our said chief justice, our said other judges or one of them, or our
judge of our said Court of Vice- Admiralty respectively, for the time
being, shall always be one), our commissioners to inquire upon the
oath of good and lawful men of our said province, and by other ways,
means and methods, according to your best knowledge and ability, as
well within liberties as without, whereby the truth of the matter may
be the better known and inquired into, concerning all treasons,
piracies, felonies, robberies, murders, conspiracies, and other offences
whatsoever, and accessaries thereto, whomsoever and howsoever done
or committed, or hereafter to be done or committed upon the sea, or
in any haven, river, creek or other place where the admiral has power,
authority, or jurisdiction ; and also concerning all offences against
the said recited Act of the fifth year of the reign of King George the
Fourth which shall be committed in any place where the admiral has
not jurisdiction, and not being within this our United Kingdom, nor
within the local jurisdiction of any ordinary court of a British colony,
settlement, plantation or territory competent to try such offences :
and to hear and determine all the offences aforesaid according to the
laws and customs of this our realm, and the statutes hereinbefore
mentioned, and all other statutes in that behalf made and provided ;
and therefore we command you, that you and each of you diligently
discharge the respective duties of taking informations, and of appre-
hension, commitment, and bailment as aforesaid : and that at certain
times and places which shall be prefixed for this purpose by you or
any three of you, at the least (of which number our said governor
general, governor, lieutenant governor, or other officer administering
the government, our said chief justice, our said other judges, or one
of them, or our said judge of our said Court of Vice-Admiralty,
respectively, for the time being, shall always be one), you diligently
inquire of, try and determine all the said premises, and do in manner
aforesaid all things to bo done thereupon as appertains to justice,
according to the said laws, customs and statutes of this om- realm :
and we do by these presents command, that it be in our name strictly
enjoined to the provost marshal, or other proper officer of our said
province, and others whom it may concern and to every of them, as well
within liberties as without, that at certain times and places, when
and as often as need shall require, which our said governor general,
governor, lieutenant governor, or other officer administering the said
government, for the time being, shall make known to them or either
of them in form aforesaid, they cause to come before you or any three
of you, at the least (of which number our said governor general.

APPENDIX.

883

governor, lieutenant governor, or other officer administering the said
government, our said chief justice and said other judges or one of
them, or our said judge of our said Court of Vice- Admiralty respec-
tively, for the time being, shall always be one), so many good and
lawful men of our said province, as well within liberties as without,
by whom the truth of the matter concerning the premises may
be the better known or inquired into: commanding moreover all
governors, justices, mayors, sheriffs, bailiffs, stewards, constables,
also keepers of gaols and prisons, and all other officers and ministers,
and all other our faithful and liege subjects whom- -ever, that from
time to time, in the execution of the premises and every of them,
they be assisting and yielding obedience to you and every of you.

In witness whereof, we have caused these our letters to be made
patent. Witness ourself, at Westminster, the thirtieth day of
October, in the fifth year of our reign.

By writ of privy seal,

EDMUNDS.

(D)
The two following decisions are taken from the reports of Geoeoe
Okill Stuakt, Esquire : the one having reference to the juris-
diction of the Admiralty over the river St. Lawrence ; and the
other, to the authority of a master of a merchant vessel to apply
personal chastisement to the crew while at sea, to compel the
execution of lawful orders, or to restrain a spirit of insub-
ordination.

VICE-ADMIRALTY COURT, LOWER CANADA.

CAMILLUS-Baied.

26ih June, 1823,
The Court of Vice-Admiralty exercises Jurisdiction in the case of a
Vessel injured hy Collision in the River St. Lawrence, near the
City of Quebec.

Judgment. — Judye Kerr,
This is a suit brought by the mas.er and owner of tlie snoW
Hazard against the ship Camillus ; and the libellant complains of an
injury done to the Hazard on the river St. Lawrence, near the city of
Quebec, by the people of the ship Camillus, who, when she was under
a press of sail, so carelessly navigated her, that she ran across the
bows of the Hazard, whereby she sustained damage to the amount of
200?. To this libel a declinatory exception has been pleaded, in
which it is averred that the locus in quo of the pretended injury is

K-ii

384

APPENDIX.

within the body of the county of Quebec, and solely cognizable by
the Court of King's Bench for the district of Quebec.

The case of the ship Trio, in which, some years ago, a prohibition
issued to this Court under circumstances similar to the present, has
induced Mr. Jones, the claimant, to consider that the question of
jurisdiction over the river St. Lawrence has been put to rest. But
no appeal was instituted in that case, nor was even the Admiralty
heard at all in support of its jurisdiction ; and unless a question of
such great importance, by which an extent of four hundred and sixty
miles of sea is transferred from the Admiralty to the courts of
common law, be determined by the decision of a tribunal in the last
resort, I cannot admit that the question can be settled. It is only
before the High Court of Admiralty, or before His Majesty in Council,
where the matter can properly and finally be decided.

During the time of the French, a Court of Admiralty was estab-
lished at Quebec, vested with powers more extensive than that of the
Court of Vice-Admiralty ; and in a maritime sense, the river St.
Lawrence was then considered as part of the altum mare, for the
" Ordonnance de la Marine " thus defines what shall be considered
as the sea: "Serar6put6 bord et rivage de la mer, tout ce qu'elle
couvre et d6couvre pendant les nouvelles et pleines lunes, et jusqu'oii
le grand flot de mars se pent 6tendre sur les greves." The maritime
parts of New France, perhaps, extended further than are now claimed
by this Court, sitting under an English Admiralty commission ; for
by it the jurisdiction of the Court of Vice- Admiralty extends to a
cognizance of *' every matter, cause or thing, business, or injury
whatsoever, done or to be done, as well in, upon, or by the sea, or
public streams, fresh waters, ports, rivers, creeks, and places over-
flowed whatsoever, within the ebbing and flowing of the sea, or high-
water mark, as upon any of the shores or banks adjoining to them."
These are the words of the commission granted by tlie High Court
of Admiralty to the Judge of the Court of Vice- Admiralty in the
year 1763, soon after the establishment of the civil government in
the then province of Quebec ; and such arc the terms of the same com-
mission granted so late as the year 1 797 to the present Judge ; so that it
may be asked, by what ordinance or statute, British or Colonial, is
the jurisdiction over the river St. Lawrence, as far as the flux and
reflux of the tide is visible, taken away from the Admiralty and
given to the Colonial Court of King's Bench ? It has been said, that
the royal proclamation of the year 1763, has taken away the juris-
diction over the river St. Lawrence from the Admiralty, and given
it to the common law courts. But it cannot escape observation, that
this proclamation (if a royal proclamation could in law deprive the
Admiralty of its ancient jurisdiction), was not intended to settle and
adjust the local boundaries of the Common Law and Admiralty
Courts, then about to be established. Its only intention was to

APPENDIX.

designate the limits of the newly acquired province of Quebec, so as
to show what portion of that territory should be placed under the
care and inspection of the governor of Quebec. Nor was the pro-
clamation of Sir Alured Clarke, of the year 1792, with reference to
the Act 31st Geo. 3, c. 31, conducive to the end for which it has been
cited, considering its avowed purpose was to subdivide the province
of Lower Canada into counties, so as to guide the inhabitants in the
exercise of their right of suffrage for members to the assembly, under
the new constitution given to them by that Act. If the jurisdiction
of the High Court of Admiralty over this great arm of the sea could
be taken away by inference (which I deny), no such inference can
be fairly drawn from these public acts. The river St. Lawrence has
been assimilated to the Thames, and Quebec to London, in order
to sustain the position that the river near Quebec is infra corpus
<cotmtatu8. But why assimilate this river more to the Thames than
to the Bristol Channel, to which it bears a much stronger resem-
blance ; or to the mouths of the Tyne, the Mersey, or the Dee, all of
which are estuaries of the sea ; or to the Frith of Forth, which is
exclusively within the jurisdiction of the High Court of Admiralty
of Scotland P The basin of Quebec has not, beyond the memory of
man, as the Thames, been subject to the courts of common law, and
indeed, these courts have not themselves yet existed thirty years ;
nor can the basin near the city be strictly holden to be a port, — the
definition of which is "locus condusus quo importantur merces et
«xportantur ; " for the river is not there shut up, but flows ninety
miles above it, and is actually navigable for one hundred and eighty
ipiles.

If the Court of Vice-Admiralty have no jurisdiction in this siut
for an injury done on the waters of the St. Lawrence, the commission
granted to this Court is nugatory, vana est potentia qua non in actum
venit, and if so, where is this libellant to seek for redress ?— It is
clear that it cannot be found in the Court of King's Bench, where
the remedy lies only in personam, not in rem ; and if the suit cannot
there be entertained against the ship itself, no adequate relief oan
be had in that court.

The Courts of King's Bench exercise their functions under the pro-
vincial statute 34 Geo. 3, cap. 6, by the 2nd clause of which, and
that is the foundation of all their authority, it is provided, "that
the said Courts, in their respective districts aforesaid, shall have
original jurisdiction to take cognisance of, hear, try, and determine
in the manner herein-after enacted, all causes as.well civil as criminal,
and where the King is party, except those purely of Admiralty j uris-
diction." The words "except tliose purely of Admiralty jurisdic-
tion," must mean something; and if they import anything, they
must mean that these Common Law Courts are prohibited from taking
■cognisance of " any matter, cause, or thing, business or injury

ill

380

APPENDIX.

whatsoever, done or to be done upon the sea or public streams, fresh
waters, ports, rivers, creeks, and places overflowed whatsoever,
within the ebbing and flowing of the sea ; " provided, as in this
case, the proceedings are against the thing in specie.

After giving this case every consideration due to the importance
of the question proposed, I have no hesitation in pronouncing a
decree, maintaining the ancient jurisdiction of the Admiralty
over the river St. Lawrence, and dismissing this exception with

costs (a).

Declinatory exception dismissed.

2Ut July, 1832. "

COLDSTREAM— Hall.

In an Action against the Captain of a Ship chartered by the East
India Company for an Assarlt and False Imprisonment,— a
Justification on the ground of mutinous, disobedient, and dis-
orderly behaviour sustained.

This was a suit brought by William Warr, seaman, against the
captain and first officer of the ship Coldstream, chartered by the
East India Company, to recover compensation in damages for an
assault and false imprisonment, alleged to have been inflicted on
the voyage from China to the port of Quebec. The summary peti-
tion, besides a prayer to award 200/. damages, concluded for the
payment of the promovent's wages, and a rescision of the articles, so
far as respected him, on the ground of ill treatment. The defen-
dants, by their responsive allegation, justified on the plea of muti-
nous, disobedient, aud disorderly behaviour.

Judgment. — Judge Kerr.

There has been laid before the Court, as is not unusual in suits
similar to this, much contradictory evidence ; but the circumstances,
as they appear to me, are the following :—

On the night of the 25th May last, when the Coldstream was near
the banks of Newfoundland, she experienced a strong gale of wind,
and all hands were ordered to take in the foresail ; when the gear
was suiBciently up for furling, and everything prepared, the men
were sent up on the yard to furl the sail. When they were upon the
yard, Warr, who was aloft, called out that if the ship were not kept
away before the wind they could not furl the sail. Taylor, who had

(rt) See statute of Imperial Parliament, 2 Wm. 4, o. 61, s. 6.
(Passed 23rd June, 1832.)

I ;

APPENDIX.

987

then assumed the command on deck, observed that there was a
sufficient number of men on the yard to furl the sail in the h.irdest
gale of wind that ever blow, and refused to keep the sliip away.
Perceiving the men meditated coming down without obeying his
orders, he called out to them, " Let me see the man that lays down
before the sail is furled." On this, Warr was heard to address his
companions on the yard, " Let us all go down together in a body
and see what he will do with us." This seems to have had its
effect, and Warr and Walsh taking the lead, the men all came down
upon deck. At this time the captain, on coming from his cabin,
sharply remonstrated with the men for their conduct, and accused
Warr of being their ringleader ; he shook his clenched hand in the
captain's face, telling him that he was no gentleman, and tlie most
scandalous captain that he ever sailed with. It also a])pears, that
on Ilolbrook, the second officer, interfering and desiring him to
desist, he called him a liar and a half-drilled soldier, and said that
the rest of the officers were no better. After much more abusive
language both to the captain and his officers, Warr was, by the cap-
tain's orders, placed in irons. This happened early in the morning
of 26th May ; and on the same day, a court of inquiry being assem-
bled in the cuddy, and the officers being of opinion that it became
absolutely necessary for the maintenance of subordination and
discipline of the ship, that Warr should be punished, he was accord-
ingly condemned to receive three dozen of lashes at the gangway.
In the necessity of this punishment Mr. Harrison, the surgeon, con-
curred ; though he states, that being only conneoted with the liealth
of the ship, he had no vote on the occasion. It further ap[ioars,
that the boatswain's mate, whose duty it is to inliict such punish-
ment, whether from sympathy towards his messmate, or from
unskilfulness in the use of the instrument, only exhibited a mockery
of punishment, and, as Mr. Harrison states, " dropped the cats upon
his back ; " and on this the captain desired Taylor to complete the
punishment, which was d(me accordingly. This is the case, as dis-
closed in the evidence ; though it has been attempted, on the part
of the promovent, to give a colouring to the transaction which does
not belong to it. It has been said that the punishment was inflicted
with great severity, even with cruelty ; — insomuch that the blood
streamed from the back, and that the blows were not inflicted
between the shoulders as usual, but on the neck, side, and loins, and
as represented by Ooddard, who admits he himself had been flogged,
that Warr's back was, from the severity of .punishment, like a
jelly ; but this is contradicted by the surgeon, who says that no
blood was drawn, nor was the skin broken, and that, in liis opinion,
Warr was able to do his duty the same day. In these facts he is
oonfirmed by Mr. Ilolbrook, and by Dyer and Davenport. It has
been represented, that when Warr was brought on deck to be

<j c 2

i: 1-

vi-v

388

APPENDIX.

I m 1

punished, the captain seized him rudely by the lips ; and that pre-
viously to his being flogged, no intimation was given to the crew as
to the cause of his punishment. On both points, however, the pro-
movent's witnesses are contradicted. On the second, by Scott, the
promovent's witness, and by Mr. Solby, the third officer ; and on the
first point, the fact is explained away by many of the defendant's
witnesses, who swear that when Warr was brought to the gangway,
his language was so abusive and seditious, that the captain only put
his hand on his mouth to prevent the continuation of it.

The promovent's advocates have relied on the testimony of some
of the crew, who swear that the behaviour of Warr was always
respectful and obedient ; and particularly on that of Goddard, the
boatswain's mate, who is pleased to say that Warr is a civil, honest,
and quiet man, and that he never uttered a bad word. But how is
this to be reconciled with the evidence of Walsh, — who appears
throughout this matter to have been a co-ringleader, — for he swears
that when the captain said several abusive words to Warr, he made
a reply to some of them, and that he persisted in speaking until he
was threatened to be gngged. Walsh does not mention the pro-
movent's words, but other witnesses supply the deficiency ; for Dyer,
the sailmaker, says, that when the captain desired him to hold his
peace, he told him that he had spoken in the company of gentlemen,
where he, the captain, durst not show his face ; aud he had been
flogged in a better ship, and by a better man, and by his. Captain
Hall's, master. That during this time, to use the witness's own
expression, Warr " bobbed his head in the captain's face." He further
says, that, though he had been eleven years at sea, he never saw a
captain so insulted. To the same eflect is the testimony of Davenport^
the carpenter, who says that Warr's conduct was mutinous, desperate,
and outrageous. That when he was brought up to bo flogged, hi»
tone and manner were unruly, disrespectful ; and that though he,
the witness, had been ten years at sea, he never saw such unruly
conduct. So says Solby, the third officer, who states that Warr
insultingly said to the captain, " I have spoken to your masters on
His Majesty's (luarter-deck." And that on all occasions of dissatis-
faction among the men, Warr was always the spokesman. In this
they are corroborated by Comyn and Sewell, tlie midshipmen ; the
first of whom says, that the captain repeatedly told Warr to hold
his tongue, which he refused to do, insisting to speak, and at the
same time pushing his head, to use his words, in the captain's face ;
that he never addraesed the captain by the word " Sir ; " and that
his ^'psturos and (le[)iirtinent wore so nienacinj^, that he appeared to
tlic witness to have thereby intended to provLike tho captain to some
act <j1' viulenee.

The counsel for the promovcnt have called in question the right
of the master, under any circumstances of misbehaviour, to inliiet

Al'l'KNDIX.

880

so public an act of oaatigation on a seaman ; but tho oases of thu
Aginoourtund Lowther (;astle(«), and that of tho Inglis Kast Intliii-
man, to which my attention has been called, clearly establish tho
right to punish in tho mode proved to have been practised on this
occasion ; the master thereby assuming on himself the responsibility
which belongs to the punishment, being necessary for tho duo main-
tenance of subordination and discipline, and that it was upplied with
becoming moderation. The sr ne maritimu principle has been
adopted by a neighbouring commercial and enlighteneu nation,
justly boasting of tho freedom of its laws and institutions. Indeed,
it is an arbitrary power which dire necessity sanctions, and the
execution of which necessity and moderation alone can justify.
On the whole, I havo no hesitation in saying, that this indivit'ual,
by his influence on the minds of the crew, led them to an act of
disobedience and mutiny. Tho mutiny, it is true, was not carried
BO far as to lay violent hands on their commanding officer, or to put
him into confinement, or to carry away the ship ; yet, considering
that Warr excited tho men to come down from the yard in a body, in
disobedience to the orders of the captain ; that on the captain's saying
he would shoot the first man who came down on dock, Warr scoflingly
said, " and pray who will shoot the second ? " I cannot, coupled with
the whole of his language and behaviour, but consider him as a
mover of sedition, having a direct tendency to subvert the good
order and discipline of the ship. His punishment, of course, became
absolutely necessary for the preservation of the whole concern. I
am also of opinion, that it was in no degree excessive under tho
circumstances which called for it. The conduct of the captain is
admitted by all the witnesses, excepting on this occasion — and that
even by Walsh, to have been mild and humane ; and his going down
to visit Warr when in irons, and saying to him, " Warr, I never
confine a man without seeing that he has a convenient place tu lie
down upon," is, to me, convincing proof of his reluctance to punish
this individual, and a desire to fogive him if he had showed the
least contrition for his conduct.

In respect to the other defendant, it must be recollected that he
was the first officer of the Coldstream, which had a crew of about
sixty men, and that on him devolved the active duties of the ship,
and the enforcing of all lawful commands. Such a person aiust
often incur the odium of the crow, and I am not surprised that his
character should be represented as arbitrary and his orders unrea-
sonable ; however, it is not for the crew to pass judgment on their
superior officer, and to rise up against his authority. Nor am I at
all inclined to believe, contrary to the weight and respectability
of the witnesses in his favour, that he was in a state of iutoxicatiou

,n:

(a) 1 Haggard's Adm. 11.271, 384.

390

APPENDIX.

on the night of the 28th of May, or that such is the habit of his
life. I have patiently gone through the evidence on both sides, and
the result is, that I decree this suit to be dismissed, and oondomn tho
promovent to pay expenses (b),

Uashcr and Aylwin, for the promovent.
Slack, for the respondents.

(E)

VICE-ADMIRALS

Since the Cession of Canada, by His Most Christian Majesty, to
the Crown of Great Britain, under the Treaty of Peace, con-
cluded at Paris, the 10th day of February, lUi'd, with the dates
of their Commissions.

James Murray

Guy Carleton

Guy Carleton ....

Frederick Haldimand

Guy Carleton (Lord Dorchester)

Robert Prescott ....

Sir James Henry Craig

Sir George Prevost . . • .

Sir Gordon Drummond .

Sir John Coape Sherbrooke

Duke of Richmond

Earl of Dalhousie ....

Lord Aylmer . . • •

Lord Gosford

Earl of Durham

Charles Poulett Thompson (Lord Sydenham) .

Sir Charles Bagot

Sir Charles Theophilus Metcalf (Lord Metcalf)

Earl of Elgin

Sir Edmund Walker Head ....

(J) By an Act of Congress, passed 28th September, 1850, "flogging
in the Navy, and on board vessels of commerce, was abolished from
and after the passing of the Act."— A ots 31 Cong. ch. 80.

19 March,

1764

23 April,

1768

30 December,

1774

16 September,

1777

4 May,

1786

13 December,

1796

9 December,

1807

16 November,

1811

4 January,

1815

1 June,

1816

23 May,

1818

19 May,

1820

6 October,

1830

20 June,

1835

3 April,

1838

6 September,

1839

28 September,

1841

1 March,

1843

2 October,

1846

21 September

1854

Al'l'KNDlX.

:t))l

(F)
JUDGES DURING THE SAME PERIOD.

1. James Potts. — Commission \inder the hand of the lion. James

Murray, and the Seal of the Vice- Admiralty of the Provinco
of Quebec, dated '4th August, 1764. This Commission was
superseded by anotii'^r issued in the King's name, and under
the Great Seal of i)ij High Court of Admiralty of England,
bearing date tho 23th April, 1768.

2. Jonathan Sewell. — Commission under the Great Seal of the

High Court of Admiralty of England, dated 17th October,
1768 (a).

3. Peteh Livius. — Commission under the Great Seal of the High

Court of Admiralty of England, dated the 6th April, 1775.

4. Isaac Ooden. — Commission under the Great Seal of the Provinco

of Quebec, dated 24th July, 1788. The Commission of Mr.
Ogden from the Admiralty of England, is stated in this Com-
mission to bear date the Ist July, 1788.

5. Jonathan Sewell.— Commission under the Great Seal of the

Province of Lower Canada, dated 23id June, 1796 (i).

6. James Keek. — Commission under the Great Seal of the High

Court of Admiralty of England, dated the 19th August,
1797. Renewed upon the demise of the Crown by another
from His late Majesty King William the Fourth, under the
Great Seal of the High Court of Admiralty of England,
bearing date, the 25th August, 1831.

7. Heney Black. — 1. Commission under the Great Seal of the Pro-

vince of Lower Canada, dated 21st September, 1836. — 2.
This Commission was superseded by another from His late
Majesty, under the Great Seal of the High Court of Admi-
ralty of England, dated the 1st of April, 1837.— 3. Renewed
upon the demise of the Crown, by another issued in the
name of Her Majesty Queen Victoria, under the Great Seal
of the High Court of Admiralty of England, bearing date
27th October, 1838.

(a) This gentleman was At-
torney-General and Judge of the
Vice-Admiralty Court, at Boston,
in Massachusetts, at the time of

the American Revolution.

(6) Attorney-General, son of
the above-named, and afterwards
Chief Justice of Lower Canada.

p^i

INDEX.

ADMIRALTY.

1 . The Court of Admiralty, except
in prizes, exercises an original juris-
diction only, on the ground of esta-
blished usage and authority. The
Friends — Duncan, 112.

2. It has no jurisdiction of any con-
tract upon land, and the general rule
is, that if a contract be made on land
to be executed at sea, or be made at
sea to be executed on land, the com-
mon law has the preference, and ex-
cludes the Admiralty, ib.

3. The cause must arise wholly on
the sea, and not within the precincts
of any county, to give the Admiralty
jurisdiction, ib.

4. The cases where the Admiralty
has jurisdiction by reason of the sub-
ject matter, and where the proceedings
are in rem, are a class by themselres,
ib.

5. The Admiralty jurisdiction as to
torts depends upon the locality, and
is limited to torts committed on the
high seas, ib.

6. Personal torts committed in the
harbour of Quebec are not within the
jurisdiction of the Admiralty, ib.

7. The Admiralty entertains juris-
diction of personal torts committed by
the master of a vessel on a passenger,
if arising on the high seas. The To-
ronto — ColUnson, 181.

8. The jurisdiction of the Court in
cases of pilotage is undoubted. The
Phoebe— Rattray, 60.

9. It has no jurisdiction in cases
where there has been a previous
judgment of a court of concurrent
jurisdiction upon the same cause of
demand, ib. 59.

10. It has jurisdiction in relation
to claims of pilots for extra-pilotage in
the nature of salvage for extraordinary
services rendered by them. The Ad-
venture — Peverley, 101.

1 1 . In suits for damage to a ship
by collision, notwithstanding the cause
of action may have arisen out of the
local limits of the court. Coi-lision,
passim.

12. In matters of possession at the
suit of the owners or owner of a ma-
jority of interests in a ship to obtain
possession thereof. The Mary and
Dorothy — Teasdale, 187.

13. By 3 & 4 Vict. c. 65, s. 6, the
High Court of Admiralty has juris-

■ui'l

894

INDEX.

diction to deciJe all claims of salvage,
and damage to any sea-going shij) or
vessel, and to enforce payment thereof,
whether such ship or vessel may have
been within the body of a county, or
on the high seas, at the time when the
cause of action accrued. The Mary
Jane — Trescoicthich, 267.

14. Ancient jurisdiction restored,
by the same statute, with respect to
claims of material men for necessaries
furnished to foreign ships, ih.

15. It has no authority to enforce

demands for work done or materials

furnished in England to ships owned

there, ih.

Ifi. Nor has the Vice- Admiralty of

LowerCanada jurisdiction with respect

to claims of material men for materials

furnished to ships owned there, ib.

17. The Court of Vice- Admiralty

exercises jurisdiction in the case of a

vessel injured by collision in the river

St. Lawrence, near the city of Quebec.

The Camillus — Baird, 383.

ADMIRALTY SUITS.

All Admiralty suits in the British
courts are summary causes, aiid justice
is administered levato vclo. The New-
ham — Bobnon, 70.

AMENDMENT.

Practice, 8.

APPEAL.

1 . The appellate jurisdiction of the
High Court of Admiralty from Courts
of Vice-Admiralty, is by the 3 & 4
Will, 4, c. 41, transferred to the
Judicial Counnittee of the Privy Coun-
cil, 5.

2. All appeals from decrees of the
Vice Admiralty Courts are to be as-
serted within fifteen days after the
date of the decree, which is to be done
by the proctor declaring the same in
court, and a minute thereof is to be
entered in the assignation-book; and
the party must also give bail within
fifteen days from the assertion of the
appeal, to answer the costs of such
a])peal, 44.

ARMSTRONG.
Captain Jesse Armstrong. See As-
sessors.

ASHE.
Lieut. Edw. D. Ashe, R.N. See
Assessors.

APPENDIX.

1. Commission of vice-admiral,
under the great seal of the High
Court of Admiralty of England, to
James IMurray, captain general and
governor in chief in and over the pro-
vince of Quebec, in America, dated
19th March, 1764, p. 370.

2. Commission under the great
seal of the High Court of Admiralty
of England, appointing Henry Black
Judge of the Vice-Admiralty Court
for Lower Canada, dated 27th Octo-
ber, 1838, p. 376.

3. Commission under the great
seal of Great Britain, for the trial of
oifeuces committed within the juris-
diction of tiie Admiralty of England,
dated 30th October, 1841, p. 380.

4. Opinion of Judge Kerr in the
following cases : —

INDEX.

395

The Camillus, 383.
The Coldstream, 386.

5. The several commissions in con-
tinuation of the above commission of
vice-admiral down to the present time,
with their respective dates, 390.

6. The several Judges of the Vice-
Admiralty Court, since the cession of
the country to the crown of Great
Britain, 391.

ASSAULT.

1 . As to the authority of the master
of a merchantman to inflict punish-
ment on a passenger who refuses to
submit to the discipline of the ship.
The Friends — Duncan, 118.

2. Assault and battery, and op-
pressive treatment by the master of a
ship upon a cabin passenger, — charge
sustained. The Toronto— ColUnson,
170.

3. No words of provocation what-
ever will justify an assault, ib.

4. If provoking language be given,
without reasonable cause, and the
party offended be tempted to strike the
oth and an action brought, the court
will be bound to consider the provoca-
tion in assessing the damages, ib.

5. To constitute such an assault
as will justify moderate and reasonable
violence in self-defence, there must be
an attempt, or offer, with force and
violence, to do a corporal hurt to
another, ib.

6. In an action against the captain
of a ship chartered by the East India
Company, for an assault and false im-
prisonment, — a justification on the
ground of mutinous, disobedient, and

disorderly behaviour sustained.
Coldstream — Hall, 386.

Tlte

ASSESSORS.

1. Captain Ilcnry W. Bayfield,
R.N., commanding naval and survey-
ing service in the River and Gulf of
St. Lawrence {now Bear-Admiral
Bayfield). His opinion in the follow-
ing cases : —

1. The Cumberland, 79.

2. The Nelson Village, 156.

3. The Leonidas, 230.

2. Captain Edward Boxer, R.N.,
C.B., harbour-master and captain of
the port at Quebec (aftericards Bear-
Admiral). His opinion in the follow-
ing cases: —

1. The John Munn, 266.

2. The By Town, 2/8.

3. Lieut. Edward D. Ashe, R.N.,
superintendent of the Quebec Obser-
vatory. His opinion in the following
cases : —

1 . The Roslin Castle, and
The Gleucairn, 306.

2. The Niagara, and
TheElizabeth, 316— 320.

4. Captain Jesse Armstrong, har-
bour-master of Quebec. His opinion
in the case of

The Niagara, and

The Elizabeth, 316—320.

5. As to practice where nautical
skill and knowledge are required (Sir
James Marriott's Formulary, 159.)

ATTACHMENT.

1. Attachment awarded against a
master for taking out of the jurisdic-
tion of the court his vessel, which had

i:i

808

INDEX.

been regularly attached. The Friends
— Duncan, 72.

2. Application for an attachment
for contempt for resisting the process
of the court rejected; the statement of
the officer being contradicted by the
affidavits of two other persons present
at the arrest. TheSarah — Smclair,8ii.

3. Application for an attachment
for a contempt against a magistrate,
first seized of a seaman's suit, for
having issued a warrant, and arrested
the seaman whilst attending his proc-
tor for the purpose of bringing the
suit, rejected. The Isabella — Miller,
134.

4. Attachment decreed for con-
tempt, in obstructing the marshal in
the execution of the process of the
court. The Delta — Murray, 207.

ATTORNEY-GENERAL.

During the absence of the Attorney-
General, the powers and duties of the
office devolve upon the Solicitor-Gene-
ral. The Dumfriesshire — Gowan, 245.

BAIL.

The bail of a party is an incompetent
witness on his behalf Sophia — Wea-
therall, 219.

BATEAU.

See Jurisdiction, 12.

BAYFIELD (Admiral).
See Assessors.

BOXER (Admiral).

See Assessors.

COLOURS.
See Union Jack.

COLLISION.
1. There are four probabilities un-
der which a collision may occur.

1. It may occur from the fault or
misconduct of the vessel suffer-
ing from the collision.

2. Or, the accident may have hap-
pened from unavoidable circum-
stances, without fault on the
part of either vessel.

3. Or, both parties may be to
blame, as where there has been
a want of skill or due diligence
on both sides.

4. Or, the loss and damage may
be owing to the fault or mis-
conduct of the vessel charged
as the wrong-doer.

In the first two cases, no action
lies for the damage arising from the
collision.

In the third case, the law appor-
tions the loss between the parties, as
having been occasioned by the fault
of both of them.

In the fourth case, the injured
party is entitled to full compensation
from the party inflicting the injury.
The Cumberland — Tickle, 75; The
Nelson Villat/e — Poicer, 156.

2. Owners of vessel are not exempt
from their legal responsibility, not-
withstanding that their vessel was
under the care and management of a
{)ilot. The Ctimbcrland — Tickle, 75.

3. Vessel giving a foul berth to
another vessel, liable in damages

INDEX.

397

for collision done to the vessel to
which such foul herth was given hy
her, although the immediate cause
of the collision was a via major, and
no unskilfulness or misconduct was
imj)utable to the offending vessel
after giving such foul berth. lb.

4. In a case of collision '^between
two ships ascending the River St.
Lawrence, the Court, assisted by a
captain of the Royal Navy, pro-
nounced for damages, holding, that
when two vessels are crossing each
other in opposite directions, and there
is doubt of their going clear, the ves-
sel upon the port or larboard tack is
to bear up and heave about for the
vessel upon the starboard tack. The
Nekon]] Village — Poiccr, 156.

5. In cases of collision arising from
negligence or unskilfulness in ma-
nagement of ship doing the injury,
pilot having the control of the ship
is not a competent witness for such
ship, without a release, although the
master is. The Lord John Russell —

Tvung, 190.

G. Ship held liable for collision
notwithstanding there being a pilot
on board. //;.

7. Where one ship is at anchor, it
augurs great want of skill and atten-
tion, in a harbour like that of
Quebec, for a ship under sail to be
so brought too as to run foul of her,
ib.

8. Damages awarded in ease of a
collision in the harbour of Quebec, ib.

!). A pilot act which obliges ves-
sels going out or coming into port,
to receive a [tilot niuler a jx'nalty or

forfeitJire of half pilotage, is not com-
pulsory, but is optional. The shij)
need not take a pilot if it prefer to
pay the penalty or forfeiture. The
Creole, 1!)9.

10. The circumstance of having a
pilot on board, and acting in con-
formity with his directions, does not
operate as a discharge of the resjion-
sibility of the owner, ib.

1 1 . Vessels are required of a dark
night to show their position, by a
fixed light, while at anchor in the
harbour of Quebec ; and the want of
such light will amount to negligence,
so as to bar a claim for any injury
received from other vessels running
foul of them. The Mary Campbell —
Simons, 222.

12. Master may avail himself of
the wind and tide, and sail into port
by night as well as by day, ib.

13. Bye-laws of Trinity House,
respecting lights, not abrogated by
desuetude or non-user, ib.

14. The hoisting of a light in a
river or harbour, at night, amid an
active commerce, is a precaution im-
periously demanded by prudence, and
the omission cannot be considered
otherwise than as negligence, per se, ib.

I.'). Rye-law of the Trinity House
of 12th April, 18.50, requires a dis-
tinct light in the fore-rigging "during
the night," //'. in note, 22.5.

IG. In a case of collision against a
ship for running foul of a Hoating-
light vessel, the Court pronounced
for damages. The Mlramichi —
Greire, 2,'} 7.

17. In such a ease the presump-

li-

398

INDEX.

tion is gross negligence, or want of
skill, and the burthen is cast on the
ship-master to repel that presump-
tion, ib.

18. IIow ships moored are pro-
tected against the intrusion of ships
under sail, 241.

19. The omission to have a light
on board in a river or harbour at
night, amounts to negligence, per se.
The Dahlia— Grossard, 242.

20. Every night in the absence of
a moon is a dark night in the pur-
view of the Trinity House regulations
of the 28th June, 180.5, ib.

21. More credit is to be attached
to the crew that are on the alert
than to the crew of the vessel that
is placed at rest, ib,

22. The regulations of the Trinity
House require a strict construction
in favour of their application, ib.

23. Having a light on board in
such case an indispensable precaution,
ib.

24. In a cause of collision, where
the loss was charged to be owing to
negligence, malice, or want of skill,
the Court, with the assistance of a
captain in the Royal Navy, being of
opinion that the damage was occa-
sioned by accident, chiefly imputable
to the imprudence of the injured
vessel, and not to the misconduct of
the other vessel, dismissed the owners
of the latter vessel, with costs. The
Lconidas — Arnold, 226.

25. The general rule of navigation
is, when a ship is in stays, or in the
act of going about, as she becomes
for the time unmanageable, it is the

duty of any ship that is near her to
give her sufficient room, ib.

26. But, when a ship goes about
very near to another, and without
giving any preparatory indication
from which that other can, under the
circumstances, be warned in time
to make the necessary preparations
for giving room, the damage conse-
quent upon want of sufficient room
may arise from the fault of those in
charge of the ship going about at an
improper time or place, ib.

27. Or, in the case of darkness,
fog, or other circumstances rendering
it impossible for the ships to see
each other so distinctly as to watch
each other's evolutions, the fault may
be with neither, ib.

28. If it be practicable for a vessel
which is following close upon the
track of another to pursue a course
which is safe, and she adopts one
which is perilous, then if mischief
ensue she is answerable for all conse-
quences. The John Munn — Richard-
son, 265.

29. In a cause of collision between
two steam-vessels, the Court, assisted
by a captain in the Royal Navy, pro-
nounced for damages and costs,
holding that the one which crossed
the course of the other was to blame.
The By-iown— Humphrey, 2/8.

30. "Where it appeared that the
collision was the effect of mere acci-
dent, or that over-riding necessity
which the law designates by the term
vis major, action dismissed, with
costs. The Sarah Anne — Jlocker,
294.

INDEX.

399

31. In order to support an action
for damages in a case of collision, it
is necessary distinctly to prove that
the collision arose from the fanlt of
the persons on board of the vessel
charged as the vvrong-djcrs; or from
the fault of the persons on board of
that vessel, and of those on board of
the injured vessel, ib.

32. Where both parties are mutu-
ally blameable in not taking mea-
sures to prevent accidents, the rule
is to apportion equally the damages
between the parties, according to
maritime law as administered in the
Admiralty Court, ib.

33. T'v steamers were coming
from Montreal to Quebec, and when
opposite the city of Quebec, the one
took the course usual on such occa-
sions, and passed down below the
lowermost wharf at the mouth of the
River St. Charles, where she turned
to stem the tide and come to the
wharf at which she was to land her
passengers; and the other did not
descend so low, but made a short
and unusual turn, with the intention
of passing across the course of the
former, and ahead of her after she
had turned and was coming up
against the tide: — Held, That the
collision comjjlained of resulted from
» rash and hazardous attempt on the
part of those on board of the steamer,
which made such short and unusual
turn to cross the course of the other,
contrary to the usual practice and
custom of the river, and the rules of
good seamanshii), for the purpose of
being earlier at her wharf The

Crescent — Tate ; The Rowland Hill
—Ryan, 289.

34, Manoeuvres of this dangerous
kind, which might, in a crowded
port like that of Quebec, result in
the most serious loss of property and
of life, ought to be discountenanced,
ib.

3;). In this case the objectionable
manoeuvre appeared to have proceeded
from a spirit of eager competition
and from miscalculation, and not
from any attempt to injure the com-
peting vessel, ib.

36. The settled nautical rule is,
that if two sailing vessels, both upon
a wind, are so approaching each
other, the one on the starboard and
the other on the port tack, as that
there will be a danger of collision if
each contiiuie her course, it is the
duty of the vessel on the port tack
immediately to give way, and the
vessel on the port tack is to bear
away so early and effectually as to
prevent all chance of a collision occur-
ring. The Roslin Castle — Saddler;
The Glencairn — Crawford, 303.

37. The Court pronounced for
damages against a vessel sailing down
the River St. Lawrence, on her
homeward voyage to Liverpool, run-
ning foul of another coming up in
tow of a steamer, the night at the
time being reasonably clear, and
sufficiently so for lights to be seen at
a moderate distance. The Niagara —
Taijlor; The Elizabeth— Nomll, 308.

38. There is no rule of law pre-
venthig vessels from entering or leav-
ing the harbour of Quebec, at any

I-'

'li';

1*1

400

inhex.

■'1^

hour, or obliging them to keep any
particular track or part of the chan-
nel in so doing, ib.

39. On this occasion the out-going
vessel had the wind large, and as
steamers are to be considered in the
Ught of vessels navigating with a fair
wind, the steamer and the out-going
vessel were considered in this respect
as on an equality, ib.

40. Vessel in tow, with a head
wind and no sails, and fast to the
steamer, so that she coidd only sheer
to a certain distance on either side of
the course in which she was towed by
the steamer, is powerless to a very
great extent, ib,

4 1 . The general rule is, that where
two vessels are approaching each
other, both having the wind large,
and are approaching each other, so
that if each continued in her course
there would be danger of collision,
each shall port helm, so as to leave
the other on the larboard hand in
passing, ib.

42. But it is not necessary, that
because two vessels are proceeding in
opposite directions, there being plenty
of room, the one vessel should cross
the course of the other, in order to
pass her on the larboard, ib.

43. If a vessel make every pre-
caution against approaching danger,
it is not sufficient to subject her to
damage for injury to another by col-
lision, that in the moment of danger
those on board such vessel did not
make use of every means that might
appear j)roper to a cool spectator :
there must be gross negligence, ib.

14. If the collision arose solely
from the misconduct of those on
board the steam tug, both the other
vessels are exempt from responsibi-
lity, and the action on the part of
each must be dismissed, leaving them
to their recourse against the steamer,
ib.

45. The law in such case is, that
the tow is not responsible for an
accident arising from the mistake or
misconduct of the tug, ib.

46. Upon points submitted for the
professional opinion of assessors, their
opinion should be as definite as in a
complicated case of this nature it is
possible it should be, ib.

47. In certain cases the Court will
direct the questions to be re-con-
sidered and more definitely answered,
ib.

48. if there, was no proper and
sufficient look-out, and if the proper
means were not adopted for avoiding
colHsion after the time ^ when the
other vessel's lights were seen, her
having taken the most seamanlike
and proper course when the collision
was all but inevitable does not exempt
a vessel from liability, ib.

49. Although there may be a rule
of the sea, yet a man who has the
management of one ship is not al-
lowed to follow that rule to the injury
of the vessel of another, when he
could avoid the injury, by pursuing a
different course, ib.

')0. Harbour-master has authority
to station all ships or vessels whicli
come to the harbour of Quebec, or
haul into any wharf within the same,

INDEX,

401

and to regulate the mooring and fas-
tening, and shifting and removal of
such ships or vessels. The New- York
Packet — Marsfiead, 32;).

5 1 . Where berths had been assigned
or confirmed by the harbour-master
to several vessels in a dock in the
harbour of Quebec, and the harbour-
master expressly directed the vessel
proceeded against to remain in the
position she then occupied, for the
night, warning the master at the
same time of the damage which wouMm.
be incurred if he attempted to haul
further in, because there was not
room enough in the dock ; and the
master hauled his vessel forward,
and as the water fell in the dock,
and the space between the- wharves
at the water level diminished, the
vessels became tightly jammed to-
gether, so that it was ^possible to
move them ; and as ^!ie water con-
tinued to fall the pressure became so
great that one of the other vessels
was completely crushi^, and another
was suspended betweedffll^rushed
vessel and the wharf, ani^nrown over
nearly on her beam enk, thereby
receiving great damage, Ipe owner of
the vessel so contravening the har-
bour master's orders condemned in
damages and costs, ib.

ft2. By the Merchant Shipping
Act (17 & 18 Vict. c. 104, ss. 296,
297) and the Steam Navigation Act
14 & 15 Vict. c. 79) as well as by
the rule of the Trinity House of
Quebec, when a steamer meets a
sailing vessel going free, and there
is danger of collision, it is the duty

of each vessel to put her helm to port
and j)ass to the right, unless the cir-
cumstances are such as to render the
following of the rule impracticable or
dangerous. I'/ie Ii>ga — Eilerlsen,
335.

53. No sufficient excuse being
found for not following this rule, a
sailing vessel condemned in damages
and costs for putting her helm to
starboard, and passing to the left of a

^steam tow-boat, thereby causing col-

kwaion with the vessel in tow, the

/steamer and her tow coming down

the channel, nearly or exactly upon

a line with the course of the sailing

vessel, ib.

54. Conflict of English and Ame-
rican law, how to steer, ib.

55. Liability of steamboat for col-
lision between vessels, one of which
is towed by the steamboat. The
John Counter — Miller, 344.

56. Cases may occur in which an
accident may arise from the fault of
the tow, without any error or mis-
management on the part of the tug,
and in such case the tow alone must
be answerable for the ccmsequcnces, ib.

57. Cases may also occur in which
both are in fault, and in such cases
both vessels would be liable to the
injured vessel, whatever might be
their responsibility inter se, ib,

58. The Court will not enter into
the discussion as to the precise point,
whether on the starboard side or
otherwise, in which one vessel lies
to the other at the time of being dis-
covered, ib.

59. Where two ships, clgse hauled,

D D

€m

INDEX.

I i

on opposite tacks meet, ntid there
woiiltl be danger of collision if each
continued her course; the one on the
port tack shall give way, and the
other shall hold her course. T'le
Mary — Bannati/ne, 350.

60. She is not to do this, if by so
doing she would cause unnecessary
risk to the other, ib.

6 1 . Neither is the other bound to
obey the rule, if by so doing she
would run into unavoidable or immi-
nent danger ; but if there be no such
danger the one on the starboard tack
is entitled to the benefit of the rule,
ib.

62. The circumstances of the case
examined, and no sufficient excuse
being found for not following the
rule, the vessel inflicting the injury
condemned in damages and costs, ib.

63. The Court of Vice-Admiralty
exercises jurisdiction in the case of a
vessel injured by collision in the river
St. Lawrence, near the City of Quebec.
The CamiUm—Baird, 383. (Doubts
which had arisen on this head removed
by 2 W. 4, c. 51, s. 6.)

COMMISSIONS.

1 . Commission of Vice- Admiral in
and over the Province of Quebec,
under the Great Seal of the High
Court of Admiralty of England, dated
19th March, 1/64, 370.

2. Commission of Judge of the
Vice-Admiralty Court in the Province
of Lower Canada, under the Great
Seal of the High Court of Admiralty
of England, dated 27th October, 1838,
376.

3, Commission under the Great
Seal of the United Kingdom of Great
Britain and Ireland, for the trial of
offences committed within the Admi-
ralty jurisdiction, dated 30th October,
1841, 380.

CONFLICTING DECISIONS.

1. Conflicting decisions of Doctor
Lushington in the case of The City of
London, and of Judge Sprague, in the
case of The Osprey. See the case of
The Inga.

CONSIDERATION.
[See Mariners' Contract, 2.

CONSOLATO DEL MARE.

The 148th and 149th capitoli of
the consolato del mare declare that the
sale of the ship, or the change of the
master operate as a discharge of the
seamen. The Scotia — Hisk, 166.

See Sale of Ship ; Owners.

CONSTRUCTION.
See Mariners' Contract.

COSTS.

Court may exercise a legal discre-
tion as to costs. Costs refused in
this case. The Agnes — Taylor, 57.

If a suit be brought by a seaman
for wages, a settlement without the
concurrence of the promoter's proctor
does not bar the claim for costs : the
Court will inquire whether the ar-
rangement was or was not reasonable
and just, and relieve the proctor if it
were not so. The Thetis — Watkin-
son, 363.

INDEX.

403

. CRIMES AND MISDEMEA-
NORS.

12 & 13 Vict. c. 96, makes provi-
sions for the prosecution and trial in
Her Majesty's colonies of offences
committed within the jurisdiction of
the Admiralty.