Ad ^> ^-^ O^. \^> IMAGE EVALUATION TEST TARGET (MT-S) % !.0 I.I 1^ i^ M 1.8 1.25 1.4 1.6 4 6" ► V] » 'c>l m '^ >■>* y /^ Photographic Sciences Corporation 23 WEST MAIN STREI^T WEBSTER, N.Y. 14580 (716) 872-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian institute for Historical Microreproductions / institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. D D D D C D D D D D n Coloured covers/ Couverture de couleur Covers damaged/ Couverture endommag^e Covers restored and/or laminated/ Couverture restaur6e et/ou pellicul6e Cover title missing/ Le titre de couverture manque Coloured maps/ Cartes giographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Re\\6 avac d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reliure sa.rde peut causer de I'ombre ou de la distortion le long de la marge intirieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajoutdes lors d'une restauration apparaissent dans ie texte, mais, lorsque cela 6tait possible, ces pages n'ont pas 6t6 film6es. Additional comments:/ Commentaires suppldmentaires: L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les d^taiin de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite. ou qui peuvent exiger une modification dans la methods normale de filmage sont indiquAs ci-dessous. D D D X D K D Coloured pages/ Pages de couleur Pages damaged/ Pages endommagies Pages restored and/or laminated/ Pages restaur6es et/ou pelliculties Pages discoloured, stained or foxed/ Pages ddcolories, tacheties ou piqu6es Pages detached/ Pages ddtachdes Showthrough/ Transparence The c to tha I The ii possil of th( filmin Origir begin the la sion. other first F sSon, or illu r~l Quality of print varies/ Quality indgale de I'impression Includes supplementary material/ Comprend du materiel supplimentaire Theli shall I TINUI whict Maps differ entire begin right requii meth I I Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6XA film6es A nouveau da fa9on A obtenir la n.ailleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film6 au taux de reduction indiqu signifie "A SUIVRE", le symbole V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre filmds i des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, it est filmd d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 32X 1 2 3 4 5 6 VIC AN INTROntT' AND CITKD JURIS ALFR Of the New Bnir, of the Suf. REPORTS OF VSES DECIDED IN THE VICE- ADMIRALTY COURT OP NEW BRUNSWICK FROM 1879 TO 1891. WITH AN INTRODT'CTION ON AP>rrKALrV .Il'IUSDICTION; TABLICS OF THK CASES RKPORTEP AND CITKl); THE IMPERIAL AND CANADIAN .STATUTES UELATINli TO ADMIRALTY .lURISDIC'TION AND PRACTICE; THE NEW RULES OF 1893; AND A FULL DIGEST OF ALL CANADIAN VICE-ADMIKALTY CASES. BY ALFRED A. STCmTON, D.C.L., LL.D., Q.C. Of the New Bi-nnswick Bar ; for nome time Recjixtrar of the Court; Editor of Jierlon'a Reports of the Supreme Court of Nevj Brnitawick ; and Lectiirer on the Law of Admiralty and Shipping in the Law School at St. John, N. B., of the University of King's College, Windsor, N. S. ST. JOHN, N. B. J. lit A. McMillan, Printkrs, Publishers, Etc. 1894. n H ■>^ Entered according to the Act of the Parliament of Canada in the year one thousand eight hundred and ninety-four, by ALFRED A. STOCKTON, In the Office of the Minister of Agriculture at Ottawa. 1 TO THE HON. WILLIAM H. TUCK, D.C.L. ONK OK THK .lUIKiKS OK TriK Sl'PREMK COURT OK NKW ItUlNSWICK A.NI> JUDGE IN ADMIRALTY OK TIIK EXCHEQUER COURT OF CANADA, FOR THE ADMIRAI/rV DISTRICT OF THE PROVINCE OF NEW BRUNSWICK, THIS VOLUME 18 HY HIS PERMISfilON RESPECTFULLY DEDICATED. Tliis vol ubliHh bin j carefully arn sentatives, lui to the public to the profess included in 1 p. 54, will b( Palmer, refus the earl}' juris case of The T Hon. Robert ] a construction HI. c. 38, an( 83 Vict. c. ]5, This decision ^ the United St It is at varian 0. J., in the cii ralty Court of not strictly an roundin^r it, ar Mr. Justice Ril on the charge ( PREFACE. This volnmo cotiluins the most iniportmit jnd.irnientM delivered by tlie late Mr. Justiee Wiitters, as Judi^e of the Viee-Admiralty Co\irtof Xew Urimswick, between the years 1H79 and 1891. Diiriu'i; liis tenure ofotHce as .Indite of the Court, he discliari^cd the duties of his hisj^h jtosition witii eminent ability, and to the entire satisfaction of the publie and tlie Bar. My duties, as Keijistrar of the Court, brouirht me into frequent and close contact with him, and I soon learned to esteem him as a man and respect him as a Jiidge. Tt was understood between us that T would at some time publish his judi^ments. After his death they were found carefully arranged by themselves, and were, by his repre- sentatives, handed to me for publication. T now give them to the public fully persuaded they will prove of advantage to the profession. Three cases by other Judges have been included in the volume. In the case of The Tctldhif/fon, \). 54, will be found a valuable judgment of Mr. Justice I'almer, refusing a writ of prohibition, and ably discussing the early jurisdiction of the High Court of Admiralty. The case of The White Finrn, p. 200, was decided by the late lion. Kobert L. Ilazen, then Judge of the Court. It gives a construction to the clauses of the Imperial Statute 59 Geo. III. c. 38, and the Canadian Statutes 31 Vict. c. 61, and 33 Vict. c. 15, relating to tlie protection of our Fisheries. This decision was (juoted with approval by the Counsel for the United States before the Halifax Fishery Commission. Tt is at variance with the decision of Sir William Young, V. J., in the case of The J. H. Nichrrso)), in the Vice- Admi- ralty Court of Nova Scotia. The case of The Chesapeake is not strictly an Admiralty case ; but the circumstances sur- rounding it, and the very important questions discussed by Mr. Justice Ritchie in discharging the prisoners from arrest on the charge of piracy, justity its insertion in this volume. VI lEFACE i Tho ri'iidcr will iiotici' tliat all tlio ro)>ortc(i cases doal with iiiiiioi'taiit and Icadini; priticiiik's of Admiralty law. At tlif end of eat'h case will l)u found full and anipK' notoH eoiitaitiiiii; citations of Knijlish, Canadian and Anicrican atitliorities, brini^ini^; tlie law dowti to tlic present time. The rm})erial and C'anadian Statutes relatintf to Admiralty jurisdiction and practice have been included. The Colonial Courts of Admiralty Act, 1.S1M), Imp. (r):{-rj4 Vict, c 27); the Admiralty Act, 1H!»1, Can. (a-^-i")') Vict, c 2!>), and the Rules of lHi»8, framed under the authority of the two last mentioned Aets, have heen i^iven //' vxlciisd. At the close of the volume has also been inserted a full and comjilete Dkjkst of all reported C/anadian Admiralty cases. These features will, it is hoi)ed. nud•! may i»rove i lU Phlvck St. .J riJKFACK VI 1 (k'jil law, lioti'rt r'u'iiM tiiiK'. inilty loiiiiil 27); (I the o last dose iiplete These utility rt been :>f that 11(1 tor Admi- 11 may •actical ^ prove uiralty T also am iinlel>t<'(l to if Ikt S. Ki'itli, FiSii., !>. A., Bar- rister-at-La\v, tor the talilu ot eases cited, and for assistuneo reiidi-red in the jireparation of the Dii^est. The volume — jtrepari'd amid inaiiy other pressini^ diitien — is MOW <.>;ivi'n to the pnlilie with the eat'iu'st hope that it may i»rove useful t(j the profession. A. A. STOCKTOX. 04 Phinck Wii,liam j^tukf:!, St. John, X. I)., Xovemher 2, 1S!>4. IS juns- ada is advo- hecn entury meiits rehant resent widow make orts, in 1 C, of aluable ■4 I DU DURING THE PERIOD COMPRISED IN THIS VOLUME. The Hon. Ciiaki-ks Waiters. The Hon. B. Lester Peters. Alfred A, Stockton, LL. D., il. C Thomas V. Himhert. :l REF ^ Arklow, Tlie — (■ '< « p iiorzone, The — > Cliesapeake, The- Elysia A., The — Jininiii K. Smaller P^nrique, The — Pi Frier, Tlie — Salvi General, The — Cc Grace, The — Colli iluttie E. King, T Jonathan Weir, Tl Maggie M., The — Maud Pye, The — i Minnie Gordon, Tl Mistletoe, The — W Neptune, The — Cc Xordcap, The — Sa Paramatta, The— ( Plover, The — Wag Soulanges, The — C 8t. Cloud, The — Sa Teddington, The — " " __ White Fawn, The- List of Statutes relal 3& 4 Vict. c. 65 (In Iiiiperial Statutes re^ The Admiralty Com The Vice-Admiralty K. S. Can. c. 74 (Shi R. S. Can. c. 79 (.Na\ List of Decided Case The Colonial Courts The Admiralty Act, The Admiralty Rule! Digest of Canadian ^ TABLE OF CASES REPORTED IN THIS VOLUME. Arklow, The — Collision, " " — Privy Council Appeal, ... Borzone, The — Necessaries, Chesapeake, Tiie — Piracy Klysia A., The — Bottomry, jMiima K. Smalley, The — Collision, Enrique, The — Personal Injury, Frier, The — Salvage, General, The — Collision, Grace, The — Collision, J iattie E. King, The — Towage, Jonathan Weir, The — Wiigas, Maggie M., The — Towage, Maud Pye, The — Collision, Minnie Gordon, The — Collision, Mistletoe, The — Wages, Neptune, The — Collision, Nordcap, The — Salvitge, Paramatta, The — Collision, Plover, The — Wages, fioulanges, Tiie — Collision, St. Cloud, The — Salvage, Teddington, The — Damage to Property, " " —Prohibition, White Fawn, The — Fisheries Protection, ADDITIONAL CONTENTS. List of Statutes relating to Admiralty, 3&4 Vict. c. 65 (Imp.( (1840), Imperial Statutes relating to the Constitution of Colonies, The Admiralty Court Act, 1801 (24 Vict. c. 10 j The Vice-Admiralty Courts Act, 1863 (26 Vict. c. 24), K. S. Can. c. 74 (Shipping of Seamen), K. S. Can. c. 70 (Navigation of Canadian Waters), ... List of Decided Cases under Suiling Rules, The Colonial Courts of Admiralty Act, 1890 (Imp.), The Admiralty Act, 1891 (Can. 1 The Admiralty Rules, 1893, Digest of Canadian Vice-Admiralty Cases, Paue . 66 . 72 . 116 . 208 . 28 . 106 . ir-,7 . 180 . 86 . 10 . 175 . 79 . 185 . 101 . 95 . 122 1 . 172 . 192 . 129 1 . 140 . 45 . 54 . 200 . 306 . 314 . 323 . 348 . 356 . 361 . 372 . 385 . 387 . 402 . 413 . 5S9 TA CASE. Abigail, Accomao, Active, Active, Active, Ada, ." Ada, Adonis, Adventure, Adventurer Aeolus, Afton, Agamemnon, Agda, Agnes, A. H. Wanson, ... Aid, Aid, .' Aid, Ailsa Aino, and Amelia, A. J. Franklin, ... .Vlabama, Alabama, and Gamec Alaska, Albion, Albion, Alexander Williams, Alfred, Alliambra, Amanda, ...... America, America, American American, and Syria, American Transport ( ('. Moore, Amiable Isabella, Amity's Friendship, Andalusian TABLE OF CASES CITED. A. CASE. Abigail, AccoiTiiic, Active, Active, Active, Ada, Ada, Adonis, Adventure, Adventurer, Aeoluri, At'ton, Aganieniiion, Agda, Agnes, A. H. Wanson, ... Aid, Aid, Aid, Ailsa WHERE REPORTED. Aino, and Amelia, A.J. Franklin, ■\laljania, Alahania, and Gamecock, Alaska, Albion, Albion, Alexander Williams, Alfred, Alliambra, Amanda, America America, American, American, and Syria, A merican Transport Co. \ ('. .Moore, j Amiable Isabella, jAmitv's Friendsliip .^lulalusian, Stewart 355 .... (1891) P. 349 .... Stewart 169 Olcott 286 Stewart 579 28 L. T. N. S. 825 . 2 Stuart 11 2 Stuart 125 1 Stuart 99 1 Stuart 101 L. R. 4 A. & E. 29 Young 136 Cook 60 Cook 1 rA(iE 617, 665 156 630 137 583, 604 377, 378, 385, 386 622 36, 552 641 542, 609, 637, 650, 679 148 654 98, 550, 567 565, 582 1 Stuart 57 584, 593, 595, 629, ()38, 648, 682 599 595, 641 151, 153 432 562, 585 378. 386 Young 83 1 Stuart 210 II lag. 84, 6 P. D. 84 2 Stuart 38 (29 L. T. X. S. 118 t. 21 W. K. 707 Young 89 2 Otto. 695 92 1'. S. 695 130 L'. S. 201 ... Lush. 2f2 27 L. T. N. S. 723 Loung 217 50L. T. 511 . oung 249 Stewart 442 2 Stuart 214 10 Blatcbf. 155 . Stewart 2- > L. K. 6 P. C. 127 L. K. 4 Ad. 226 2. Stuart 329 6 Wheaton 1 Marsden's Ad. Cas. 322 2P. D. 231 599 92 191 169 148, 181, 191 136 604, 684 142 10.5, 574, 620 547 653 105 554. 633 190, 377. 378, 379, 385. 386 628 248 99 49 XIV TAIJLE OF CASKS CITED. CASK. Anderson, ex parte Angio-lndian, Anglo-Saxon, Ann, Ann Annapolis, Anne Johanne Annie, Annie Childs, Antelope, Apollon, Arab, Arabian, and Alma, Aratnlntha, Architect, Ariadne, Arina, Argentino Argos, ex cargo Arlilow, Arran, Alalava, Atalaya, Atalaya, Athabasca, Atlantic, Atlantic, Atlantic, Atlas, Atlas, Atlas. Atlas, Atlas, Attila, Attorney Gener.al v. Sillem, Augusta, Aiiguste Andre, Aura, Aurora, Aurora, Aurora, Australia Avon, and Thomas Jolitie, Aztecs, WnERK HKPORTKI). ( 3 E. A: B. 4.S7 ) 17 Jur. N. S. 122 I f33L. T. N. S. 233 \ \ 23 W. R. 8S2 / 2 Stuart, 117 ")(i4, oSl, f 13 Moo. I'. C. 11)8 ) I Lush. .-,5 ; Young 104 Lush. 1555 2 Stuart 43 513, 12 P. D. 50 Lush. 50'J 10 Wheaton ()(5 9 Wheaton 362 Stewart 540 2 Stuart 72 Stewart 47 Young 110 13 Wall. 475 12P. I). 118 14 App. Ci.s. 519 ... L. K. 5 P. C. 134 ... f 9 App. Ca,s. 136 t t Stockton 72 / Cook 353 Cook 260 Cook 215 Cook 234 Cassell's Dig. 522 1 Stuart 125 Young 170 Lush. 566(1862) ... ( 15 Moo. P. C. 329 ) I Lush. 518 / 93L'. S. 302 2 Hag. 52 3 Otto. 302 10 Blatchf. 459 Cook 202 10 H. L. 704 1 Dods. 283 Young 201 Y'oung 54 2 Stuart 52 Lush. 327 3E. C. R. 228 13 Moo. P. C. 132 ... (1S91) P. 7 21 L. T. N. S. 797 PAOK 260 372, 385 )96, 634, 635, 636, 672 109,113.114 585, 686 191 562, 584, 603, 611, 650 152 443 267 248 618 563, (i34 583 655 105 127, 136 104 59 26, 66, 72, 373, 385 576, 619, 643 572, 587 588, 602, 646 602 596, 646 675 665 660 127 154 191 44 92 105 550, 570, 596, 601 5S 4.". 65.^ 139, 619, 624, 6So 562,611,618 91 371, 68.^ 674 191 14'J ca.sk. Barcelona Batavier, Beattie c. Johanse Beaver, Beldon v. Carapbel Belle, Bella Mudge, ... Bello Corrunes, Benares, Benniore, Bermuda, Bernina Besset, ex parte Bessie Markliam, Beta, Betsey, Betsy and Rhoda, Biddick, Bilboa, Bissell V. Bradford District Traiaway Black Diamond, Blake, Blakeney, Blos.som, Bold Buecleugh, Bolina, Bolivar, Bonaparte, Borzone, Boston, Bothal, and Nelson, Bougainville, Bridge water, liritannia, British Lion Brown v. U. S. Brown v. Leclerc, Brown v. Vaughan, Brunswick, Buckhurst, Burlington, Burns v. Cliapniiin, By -Town, TABLE OF CASKS CITED. l.Vi 443 •2o7 248 618 3, tl34 -)83 ()55 lOo :7, 136 104 o'J 73, 385 lU, 643 72, 587 02, 646 602 646 675 665 660 127 154 191 44 92 lOo 96, 601 5S 43 658 )24, 6> 611, 618 VI 1 371, 6S^ 674 I'.n 14'J CASK. Barcelona, IJatavier, Ikattie I'. Joluinsen, Heaver, Heldon v. Campbell, I5elle, Hella Mudge, Hello Corrunes, Benares, Benniore, Hernuula, Hernina, Hesset, ejc parte Bessie Markham, Beta, Betsey, Betsy and Rlioda, Biddick, Bilboa Bissell (;. Bradford and 1 District Traiaway Co. J Black Diamond, Blake, Blakeney, Blossom, Bold Buccleugh, Bolina, Bolivar, Bonaparte, Borzone, Boston, Bothal, and Nelson, Bougainville Bridgewater Britannia, Britisli Lion, Brown ?;. U. S. Brown v. Leclerc, Brown v. Vaughan, Brunswick, Bucklnu'st, Burlington, Burns v. Chapman, l!y-Town, B. WHEHK RKI'OBTED. Cook 311 (1882) 52,545, / 1 Spinks 378 ; 2 W. Rob. 407 ) \ 9 Moo. P. C. 286 / 28 N. B. 2() Stewart 173 6 Ex. 886 Stewart 537 Young 222 6 Wheaton 152 9 P. D. 16 L. R. 4 A. &E. 132 Stewart 231 13 App. Cas. 1 6 Q. B. 481 256, 258, 269, N. S. Dec. 1892 L. R. 2 P. C. 447 (1869) Stewart 39 2 Ware 117 (1840) 38 L.J. Ad. 24 Lush. 149(1860) (1893) W. N. 44 9 L. T. N. S. 396 1 VV. Rob 73(1839) Swa. 428; 5 Jur. N. S. 418 ... Olcott 188 f 7 Moo. P. V. 267 \ t 22 Kng. L. ct Kq. 69 / 3N. of Cas. 208 Olcott 477 17 Jur. 285; 8 Moo. P. C. 473 Stockton 118 1 Sunnier 328 Cook 296 L. R. 5P.C. 316 Cook 257 545, .549, Marsden's Ad. Ca.s. 331 2 Stuart 114 585, 8 Cranch 132 22 Can. S. C. R. 53 22 N. B. 258 1 Stuart 139 6 P. D. 152 137U. S. 386 5 C. B. N. S. 481 1 Stuart 278 550, XV P.VOE 585, 588, 646 98, 163 616, 623, 688 633 36 618 594, (;85 15.1 86, 87 433 605, 643 167 272, 283, 296 85 49, 53, 158 551 136 435 51 135 2 127 418 105 134 98 1.38 41 625 153 571 »6 584, 591, 616 99 612,644,674 248 171 80 626, 627 99 191 79 657, 597, 670 XVI TABLE (W (^ASKS CITED. 0. CASK. WIIKUK KKl'ORTKI). rA( i K Calyiisi), Swa. 2S . . > 93 Cambridge Young 63 . .. 548 Ciiinilla, Swa. 312 . . • 126, 127 Ciiinilliis 1 Stuart 383 54S, 51)2, 591, 605,610,680 Canterbury, Young 57 ... 654 f'iirneron r. Nystroni, (1893) .\.C. 308 * * • 170 Caniulieniie, Cook 2(>i) • * • 616, 690 CiitlieriiU' 12Jnr. 682 .*• 148 Ciitheriiie of Dover, 2Uag. lo4 . • . 87 Catlierine r. Dickinson, ... ITIfow. 170 • .. 105 Ciiptiiin Koss, ... 1 Stuart 216 ..• 665, . -jTf; I Stuart ;{;!■"• Cools is.') L. K. J .\d. A K. 111! •_' .Stuart ;!'i! ] Y(Mm>? 1 I :< K. C. K. •-'») Swa. 1 L. K. ;{ .\.i«t K. lOl II Moo. V. C. '.>7\ Lush. ].")« ) Yoiui-j 186 :J ILiK. 120 1 App. Cas. 790 Stewart 100 5 Can. L. T. 427 . . 2t> L. T. X. S. 120 1 Stuart :Wti r)4S, .")49, Cook lfi7 L. R. 1 .\d. y;! ) 14 L. T. N. S. S'.lt) ( tlJur. 851 lO.Jur. S4.-) ) 4 N. of Cases 012 / losr. S. ;{o2 3 Pugsley .527 (1876) Kr. & Lush. li>l Swa. 205 145U. S. 336 3E. C. R. 23 i)P. I).35 Stewart 513 3 K. C. li. 82 2 Stuart 95 { ^^ Lush. 541 (1872) ... L. R. 1 E\. D. 406 1 Stimrt 199 1 Stuart 289 3 W. Rob. 27 1 6 Moo. P. C. 371 / 1 Black 121 Stewart 525 1 Stuart 79 Stewart 312 3 E. C. R. 362 Cook 190 Cook 9 (1875) PAdK 105 583 139, 624, 631, 662 80, .53:; ■)43, .592, 612, 613, 631 66S, ()8I, 6S4, 686 .578 120 49, .52 190 105, 573, 6i;;, 620 154 105 617, 633 625 375, 385 591,616,626,629, 687 569 377, 385 128 176, 190 191 155 422 120, 152 169 660 420 1)43 661 555, 563, .564, 581, 592 597, 620, 634, ()36. 692 52 58 556, 637 558,646,670 190 153 618 ( 550, 555, 634, 637 \ 638, 641, 648, 681 644 579 569,619 52, 566, 589 '% .will TAl'.LK OF CASKS CITKI). D. CAHK. WIIKIIK HEI'OUTEIi. l'A(iK Dal.Uli, 1 Stnart 'Ml' r)-)?, .V.*.'), (!I8 I>i"in>,', Dart, L. K. 2 A. iS: E. 2(iO 44, 120 Stewart .'{(11 ',47, .^9."., 6;«), (iUl Diivid I'riitt 1 Ware 41):, im DiiviH r. (iydf, 2 Ad. & E. 62;{ l:^.■^ Do Uiiy H App. Cns. ").")!» 174 Dt' Lovio 1'. Hoit, ( 2 fiall. Hep. .".98 1 ,- ,„ an rr i,> = \ .1.. \i ' v 1 i» in ■ •*(, 48, OO, ()0, lt)0 { 2.i MyerH red. Decs. 19 ) > » i > Deltii, 1 Stuart 207 fvA DeHilenionii, Swa. loH 120 Diiinii, 31 L.T. N.S. 203 4l!t Diana, Lush. 539; 1 ^^'. Kol). 131 r>2, 104 Dictator, (1892) P. (i4 103,414 Diviiia I'astoni, 4 Wiieaton 52 248 Diilaii, . t * 217 Dodge ('. Emerson, 131 Ma.«8. 4(57 132 Donovan r. liaing Wluirton 1 tS: Doni. Constr. Syndic'e, ) (1893) 1 (^Ii. (J29 170 DoH Herinaiios, 2 Wiieaton 70 24S Don Hicardo, 5 1'. D. 121 422 Dowtlior|)e, 2W. Kol). 73 419 Drnid, • * . • 1 W. Kol). 399 134 Droiet, ex parte 2 Stuart 1 54(), 598, 644 Drew r. Ilardwicke, Marsden's Ad. Cas. 315 (1740) 52 Dnhuqne and S. C. K. Ry. ) 19 Wall. 584 179 Co. V. Kielunond, Duke of Bucdeueli, Duke cf Bucoleuch, Duke of Sutherland, Duke of Sussex, Dumfriesshire, Dwina, Earl of Lonsdale, Earl Spencer, ... Eastern Star, Eastern Monarch, Ivist Lothian, . . . Ebenezer, E. B. Ward, Jr., Economy, Eclipse, Edith, Edith Wier, 15 v. D. 86; (1891) A. C. 310 2(3, 78, 114, 385 (1892) P. 201 415, 438 L. R. 4 A. & E. 417 86 1 W. Rob. 270 100 1 Stuart 245 551, 603, (;45 (1892) P. 58 153 E. 550, 569, 586, 643 Cook 161 f L. R. 4 Ad. 431 \ ,.. ,>.„ „.- \33L. T. N. S. 23/ lOo, 3(8, d.V) 1 Ware 184(1830) 136 Lush. 81 148 Lush. 241 115 2W. Rob. 206 99 17 Fed. Rep. 456 (1883) 1(39 Stewart 446 539, 617, 630, 633 3 Bi.ssill S8 137 Ir. Rep. lOEq. 345 3S5 Young 237 574,605,007 CASK. I'dinond, Kilward Hawkins, Edward Barrow, Edward Oliver, Edwin, Elh'rslie, J:ii/-M Keith, ....."' Eli/.a, l';ii/.al)etli Elizabeth, .....' Elizabeth Jenkin.s, Elphinsione, Electric, Electric Dispatch Cn '•HellTel. Co. of( Elysia A., Emblem Emblem J'-mily Souder, Emma, Emma K. Smalley, ^■;"^''Kv ' England, Engl is!) man, Enchantress Enmore, and Lelle H Enri(jue, Enoch Stanwood, J'-sk, and Gitana, K. I' Euclid, Eudora, Eugenie, Eunice, Euphemia, Europa, European, Excelsior E.xeter, Expedition Explorer, I'-.xpre.ss, TAMI.K OK CASKS C'lTKD. xix CASK. Kdiiiond, Kdwiird IliiwkitiH, lOdwiird IJitrrow, Kdwiird Oliver, I'Mwiii, Klli'i-slif, Kli/.ii Keith, Eli/a, Kli/,al)t'tli, i':ii/.iiliftli, i'ili/.ahftii Jonisl . 2 .Stuart 'A't Cook 107 Lush. .");',ti Stewart SO 2 Oods. Mi L. K. 1 P. C.501 I*A(iK n:? 147, 1 I'.t, 191 44, ol,-., ti)(i 44, \][) ti22 2r., .V.O, /jtiH, 587, (143 14S, is:{ IE m ( -Mont'l (iazette, Dec., lS77 1 \C(.(.k liJ2 ) I Stuart 3.S;{ 20 Can. S. C. R. 83 2, 0(18, .")86 641, 642, 645, 6r.2 178 Stockton 28 2 Ware tl8 Daveis' Hep. (.1 17 Wall. 670 Young 2S2 Stockton 106 L. K. ;i A. \- E. 48 (1870) L. K. 2 I'. C. 2o:{ 3 I'. D. IS Lush. 'J3 Cook 1311 Stockton 1")7 Stewart 123 ( L. R. 2 Ad. 3")0 1 m, ')8!), 646 lo3 1-.3 l;!7 631 ')77, 607, t;3y 163, 1S8 174 26, 87, 105 174 568, .^96 546, 591, 601, 614 583 138 L.J. Ad. 33 / 1 Spinks63 Cook 280 4P. D. 208 L. R. 4 .\. & E. 123 Stewart 528 Stewart 563 ( 2 Moo. P. C. N. S, 1 ] 32 L. J. Ad. ISS ; Br. c7(J ... i\4r> ( L. U. '_' Ad. A F. M ) ( ;i7 L. .1. Ad. (■)(» j" .S A pp. ("as. .'!'ii» 7H, 8t;, 114, ;{73, ;w-> r)44, 585, .-)87, t);{7 ...'Jo, 87 80. 120 KC L. T. 1 ■■)',', Stewart oASI L. K. I A. iV !•:. 4!) 1 Stuart 2.")') 1 ItMUH 4S 1 Stuart 2.'i4 i London Moruin;,' Post, ) 1 Fel). ."), lstl4 ) Stewart 171 Stockton ISO 2 Ilaj;. 90 2 1'. 1). s 2 1'. I). l(i:{ (1871) L. K. :? A. iV K. oil L. K. 4 ]'. C. o2<.t \ - L. T. N. S. ()3:^ I {i 80 (572 sr. (l.')l, ()92 til.'!, m^ »i21, fiol. t;(i7 272 (104 (!t)4, 67.5, (i'.ri IT)! :{8." .. 103 378, 385 Cook 81. 10.") 2 Stuart Kl'.t L. K. ;{ A. & E. lit.} Stewart 480 Hi), ooO, ')67, 5t)S, .588, (lOl, ()4(> mo 422 617 1 Stuart 112,118 / 158, .541, -549, .550, .591 (592, ti05, (i09, 635, 639, 691 1 W. Kol). 485; Lush. 5.52 Stewart 200 Ste wart 97 N. H. Jud-eTuck (1893) Stockton 180 3 Moo. P. C. .51 Br. & Lush. 350 Swa. 349 . 2, 104 539, 630 ... .586 ... 128 ... 629 ... 1.53 1.50, 161 191 82 3 App. Cas. 944 (1878) Stockton 86 91, 104, .57(i, 585, 587, 619, 671 1 Sprague 554 (18.54) 20 Fed. Rep. 923 (1884) 13S 13S • 'A^i:. odiva, . -JO 'J Stuart I'.iH 104 1'. S. olT) Cook, 203 Stockton 10 ;H'. KoK-_>40 L. H. 1 A. iS: K. 3S4 .')fi3, 1) Can. S. (". K. so:? L. U. 'J A. iS: E.;\2r> (18(iS) ... Liisii. .50(>; .'11 L.J. Ad. 207... Stewart, .")41 H.tidee, llallett, Hamburg Hanna, Hanson v. Royden, Hajipy Couple, ... . Hardwic'k, Harbinger, Harold Plarfaager, Harriett, Harriett, Harrisburg Harris v. Owners of Fran- conia, Hattie E. King, Hay V. Le Neve, Heaven v. Pender, H. 2 Stuart 25 i;]<), nA^, (ill, filo, Ad. Div. (Aug. '.», 1S,S7) Br. & Lush. 2.')3 ;{ Asp. .-)0:i; ;i7 L. T. N. S. 3()4 L. U. :5 C. P. 47 Stewart ()•"> 9P. D. ;!2 IGJiir. 721t 2 Stuart 2US /.') L. T. N.S. 210) (Lush. 2S.'i ) 1 Spr:igiie:!3 (1S42) lilt U.S. lll'J 2C. P. I). 173 .; Stockton, 177 2 Shaw (.Sc.) App. Cas. 30."> 11 Q.B.I >.."i03 (,1883) r.\uK 570, til 11, 111',' ,s ■•)74 t;;;3 l.Vl, 422 i:.3 104 ')•)■') LSI 373, 3s.j 1(»4 174 fitJl lo4 103, 424 564, ti20, 63rt 1»)8 570 555, .5(15, 575 44 127 12S .53 120, 134 C.oO fill), (124, fi40 105 44 154, 42'.' (ilfi .583, 505 154 isl 064 80, 82, 83, 84 137 !()'.» .52 612 '.'9 171 n X\ll TAr.lJ", OF ("ASKS CITKI). r\SK. WHKIIK KKI'OKTKI .. I'AUK Hc.iiImt Hfllr iini-i'iiia, . ... 2 Asp. 4 -.4 l(i.'» Ililicniiaii, 2 Stnart l^.") 5.-)0, •')t;4. r)82, o:{.">, ti'Mi Ilii'Uiiian, L. K. ;i A c^ K. 1.-) 42S liii'ks r, Hhiehi, 7 Iv i^i n. iVX\ 117 Hilton V. Kckersley, 1 tl K. t^: 1!. 47 1 \2.-) ^..I.c^ 15. mil) 176 Hiram, Stewart oSH (12.'), (i4(; H5 HiintLM', Mar.sden's Ad. ('as. .'-{ )•) •Jl» I. C. Potter, L. K. ;i A. i^ K. 292 142. 191 Ida. Cook 2:.'> 99. .^)71 Ida, Lush. "SOO) 102, 101 Ida Barton, Yoinig 240 r>92. (i.5.5 Ida i.. Howard, 1 Low. ■ . •• • 1.5S Inil.ro, 14P. I». 7S 20 Iinmaeohita Concezione ill'. I). .•i7 IIH, 119 Inca, ( Swa. .'^70 ) \\-2 Moo. I'.C. 18y/ •• 151 hue V. E. Boston Ferry Co. 106 Mass. 149 10.-. Iridiisici,,^ Inliexil.le, liniisCiiJ, '"«■•'. .'.". Iiilernaiiaiiii! W Transporiat'n ( '""'''■ NaOeil,. Nca, Isis, Me of Cypresh, Itinerant, •':""- (J. SteveDNo •Jane, •'"lie Haeoii J.iiiet .Milelioil, •'••"lift Wilson, •liiMies l.'niser, •James .MeKi.„i,,i(.^ •'•■■■II, .Anderson, •ii'cker r. .Montgomt •'I'liiiy Lind, •'•'iiiiii' S. liiirker, ./eriLsjilem, .'eMiioiid, •'■ ". Henkes, •'• H. Niekersoii, •'oli.iiiiia, .'olijiniies, ■'"I'll Counter, •'olin Mnnn, >'olin. •'olin Owen, •'I'liii and Miirv, ■^ohn Hoyne, ■'"liii Bellamy, •ioliii U'nits } • • • • • •'"'in Fenwlck, ... •'"Iin.son i: Lindsav, ■'"linston V. HilLerry, •'olliette •Jonathan G(.odlju'e, TAIU.K OF CASKS (MTKD. will (AMU, WIII-:UK IlKI'tlHTKI). I'AliK Iiiilnsirio I-. U. :» A..V; K. :{();« (IH 71) • • * ... .. im |llll<'ll> Swii. W'l ,, fl • .... .. 104 Iniii-'l.iil, :; A^p. N.s. n;{7 ■ *« ■ •• ... m IiiU'). 1 stiiiirt ;»;»■) M\, :>8:i. ti'JH, tit'.t, tlTO, (171 liiti'i'iiiMi'itiikl Wrci'kiiiK tV 1 riiiiis|)i)rtiit'ii Co, ('. L(ilil) 1 Ml n. K. K»s (isMd) ) \-2-2 Clin. L. .1. lOi; »■ .. ... l.'it), (l.V> Imiii, 1.. K. 1 I'.C. 42ti ,, .«• **• 10') li4||l)C>llu, 1 Siuiirt i:m , , • *• • • t .. T).'.! Uca, 1-.' I'. I). :m , ,, ... 1H7, I'.IO Isi!*, s I'. I). '227 ,, ... IM. •l-Jo, 1 lit |«li' 1)1" (yi'rt'Sh, 1.-) I'. I). i:(l *. ... ... ... 420 Itinfi'iiiU, I -J \V. liol.. 2:m \ \ ',i N. Ill" (us. ."» ) yj J. ■ .Iimu's C. Slovi'iiMoii, I,. K. :. P. c. ;{i(; ..• **■ • • 87 H Jaiif, 1 Smart "Jod . .• 117, t! If), (IliO 1 .lane Hacoii, ii7 W. K. :r. ... • • . ., 105 ■ Jaiitt .Mitclu'll, Swa. Ill . . . . • • . . . 14S .laml Wilson, Swa. •J(>l ... ,, ... 110 James Krasor, YoiniK KiO . .. . >. t)4(> I .lames McKiMi/.io, •J Smart S7 ... ... ... .-)(i3 I .Itai. .Vnilcrson, Yiiun;; 'J 14 . .. 504, liOS Jwki'i- r. .Monlfjomery, l.! Howard :)12 . .. • • i • . ■ 2t)8 ^m .luiiiiv l.inil, 1.. H. J A.MO. 5:{2 ... 120, 121 ^1 10 ■ .li'iinii' S. IJarkiT, ( L. K. 4 Ad. 4.j(i ) •• \44L. J.Ad. 20 ( ... :!77, :w5 ■ .It'i'iiwiU'm, Sti'wart ."i7(» .,, 5s:{, (105 Is 1 .Jfsmonil, ( L, K. 4 P. C. 1 1 •• \s Moo. I'.C. N. S. 17',t r ... »> :{77, ;!S5 •1\ 1 .1. II. Ili'nki's, 12 1'. 1). lOG • • • • ... *•• 4;{.s 7t> I .). 11. NU'kirson, Yonn^' IKj ,,, 207, 5s:5, 500 ;5r> Johanna, Stewart -Vil ... (i04, CAS l.')5 Joliamu's Lush. 182 ...» ... . .. 151 Jolin C'oimtt'r, 1 .Stnart H 14 . . •• .-.(11, G72 y'.> Jolin .Mmni, 1 Smart 21) ■) .V)0, ').")7 t;:i2, ()4() tl4'.t. (170 Jolin, Young 12'.> .... -V,l2, ()5',» .Idlin Owen, •") (.'an. L. T. .It!.") 433, ->\>:, (1(17, (142 ml John ami Mary, 1 Stuart 114 • ••■ 507 (;:!4, (142 r)71 John Hoyne .St; L. T. N..S. 2!t • >•• 104 424 if,i John Ht'llarny, L. li. :? A.i'i K. 12tt . .. . , , • .. 415 tl.'jr; John Wnrts, Olcolt 4(12 .*.. ... 151 i-'):^ '>(> John Fenwiek, 1 L. K. ;i Ad. rm \ •• \41 L.J. Ad. .'jOO J .... 370 38(1 n'.» John.son v. Lindsay, Johnston v. Ilillierry, .... (isiti) A.c. :i7i :{H.cV:C.32,S ... ... 170 79 151 Joliiotte Stockton 199 • . •* • • . • • • 199 10.") Jonathan Goodhue, Swa. "t24 .. ... 110 \X1V TA15LK OF CASKS (MTKD. (ASK. \vii!:i!i: iu:i'oHTi:i). I'A(iE ■ .Joii.illian Weir, Stocktiiu 7".t 545, 012, 614, 090 H l.c|ireau.\. .lonjic l>;istiiiim, .-)('. K(.I,. :1lM ... .. 149 H Llv-perance J(>Sl'|)llll, 1 Stuart l^lU ... .. 041 H l.is 'I'rois I'leres. Juliilcc, lliL. T. ruM .. 142 H l.iliertv. Judith H:in(i(d))ii, M.arMleu's Ad. Cas. :!.S2 .. . 91 H l.'lnviucihliv Julia, Lush. 1221 190, 191 ■ l.inila Flor. Julia Ki^liiT, 2 1'. I). 11.') 12S H f.illle Joe. JuliniiiT i Spiuks 7") K. .. 419 ■ l.illlejoi', H l.iverjxiol H l.ivietta. Kaine, In re 11 Howard 107 ( 2G0, (. 201, 207, 202, 203 209, 283 H L:{ (1S71) ... .. 138 ■ Lord Advocate r. Lo Khedive, i) App. Cas. Sit) 26, 80 H I>ougIas, Kiinl)a!l, ;5Wail. :;7 ... .. 137 1 Lord John Kusseil, Killeena, 1'. I). lli.S (1881) • • ■ .. 149 Kite and Lane's Case, , 1 H. ^- C. 101 , 2()1, 299 I Lorne, Kleinwort r. Cassa Ma ■"'"^^ 2 Aj.p. Cas. ir>6 43 Lotus, lima lit denoa, LotU.s, Kony Majj;nns, (1891) 1*. 22:? L. • • • 019 Love Bird, Lydia, La Furiense Stewart 177 ... ... 009 Lady Aylnier, ... 1 Stuart 213 ... ... 610 Macleod, Lady Seaton, 1 Stuart 2(10 021, 030, 600 Madonna D'Idra, Lady .Ann, 1.') Jnr. 20 ... 195 Lady Caniphell, 2 Hag..-) (1820) • ■ • ... 127 ^LlL'dalene La;it;:) V. 47 \ 1(18941 A. C. 1 i 37S, 385 Malcolm, Lancaster, DP. I). 14 150, 174 Malvina ' Lapwing 7 App. Cas. ')]2 ... 80 La Keine Des Anges, Stewart 9 . .. ... 043 -^Lumnoili, Lr.tona, 2 Stuart 201? • • • ... 023 •Manhasset I.,anrel, J{r. <<: Lush. 317 44 Mantield r. Maitland, . Leathers v. Blessing, 105 r. S. (12(i ... 107 -Marathon Led a, ( Kr. .^- Lush. 19 \32L.J.Ad. 58; 32 L. T. N.S.58/ ...99,100 Marino, •Marianna Flora, Leonidas, 1 Stuart 230 550 557 039, 649 Markland, TAr.LK OF ("ASKS riTKD. \\v CASK. I.i'preiuix, L'H>|it'r:iiR'*', I.ts Truis l'"riTt's, l.iliiTty, I.'liiviiii'ilili', I.iiiil:i Flor, l.itlll' .loi' l.itllf Jiie, I,iv('l|»l(ll, I.iviftta. l-iuirin^, fj' jHuir I.ofkwoods, I.iu'kwdods, J.liiyd r. (jiiihert, l,(iml»!ird, and Farewell, ... Lntidon, London, London Steaiu Owners Ins. 1 Co. V. (iranipian .S. S. Co. ) Lord Advocate r. Lord )^ Douglas, i Lord Jolin Kusscil, Lome, Lotus, Lotu.s, Love Bird, Lvdia, Miu'leod, Mndonna D'Idra, Mairdaleiie, MiiKKie M., MiiK'H't Mafjna Charta, .. Malfolni, Malvina, Mainniotii, Manliasset, Manlield c. Maitland, .. Marathon Marino, Marianna Flora, Mai'kland, \VIIi:i!K KKIMPHTKl). I'Ai^K 7 .\pi.. ("as. .M-J 1 Dod.s. -Ill ... •• 2(i .. l.-.l Stewart 1 , . 5*14 2 Stuart ilfj 5(i:!, .■)(;4, • 142, 050 1 Wlieaton "JIW , , . ... 24S Swa. :{()!i . , . ... 120 Lush. SS .. 149 Stewart ."H-l 541, 581, .594. 020, ti44 (IS'.Ki) I'. l.-)l . . . ... Mil S I'. D. 'Jl . , , .. 174 'J Hose 711 , ,, i:;5 11 Jur. 1017 . . , 149 1 Stuart r.'o 021, (-.20, 0''f', (iOS L. K. 1 Q. B. 1 1 44 Cook l.'S!t 550, 571, 5S5, 5S7 Hr. & Lush. S'J . , . 97. 99 1 Stuart 14(1 597, 034, 042, ()09 24 Q. B. I). (503 (1890) .. ... 94 9 CI. i*i V. 17:5 ... ... 100 1 Stuart 190 r 555. 550, 041, 005, 040, 034, 037 017, ti9l 2 Stuart 177 ...... 504, til'.i 7 P. D. 199 . , , 428 2 Stuart 58 502,581. 585, 021, 634, 036 (5 V. D. SO 109, 114, 197 1 Stuart 13G 027 M. .") p. I). 2')4 ... 127 1 Doiis. 37 • • . .. 117 /HI L.J. Ad. 22 \ .') L. T. N. S. so; t ... .. l.-)4 Stockton 185 102, 577, 5'."0, 014 L. K. 4 A. iS: K. 417 • • . 80 ( 2.5 L. T. N. S. \ Wni. iS: Br. (ed. 12 1 1880) 142/ ... .. 432 Stewart ;i7'.i • ■ • 044 ( 1 Moo. P. C. N. (.Lush. 493; Br. S. 357 I'i: Lush. 57 ) ... ... 48, .52 9 P. D. 126 > • . .. 434 19 Fed. Kep. 918 (1884) ... 4B. i^Aid. 5S2 ... 109 .. 117 2 Stuart 9 • 1 • (i22 Youufi; 51 H Wheaton 1 ... ti50 .. 24S L. K. 3 A. A E. 529 • « * .. 117 ■i,-,; 'It XXVI TABLE OF C'ASHS CITED. CASK. Miirffiiret, Maiffiiret, Margaret, Marf;aret Margiircl, Margaretliii Stevenson, ... Margaret .Jane, Margaret M., ... Marie, Mario Victoria, Martiia Supiiia, Marion Teller, ^[arl)esia, Marcjuis de Soinenieles, ... Martha, Mary .Jane, Mary lianiiatyne, Mary t'aiii|)V)ell, Mary and Dorothy, Mary, Mary .\nn Mary .Ann, Marry at r. Wilson, Mau(i I'ye Max Morris Maythani, MvLeod, Me Donald v. MeFee, Medina, Mellona Meli>()inene, Merced, Mersey I )oek and Harbor ) Board r. Turner, ) Metzer's Case, ... Michiels r. Eiupire Palace, 1 Limited, j Milford Minnie ( Jordon, Minerva, Minneliaha, Minnehaha Minnie, Miraniiehi, Miranda, Mistletoe, WflKRK KKPf 3 Hagg. 240 9 App. Cas. 873 () P. D. 7G Yonng 171 2 Stuart 19 2 .Stuart 192 L. K .\. iS: E Cook 270 7 P. I). 203 2 .Stuart 109 2 .Stuart 14 (."assel's Dig. ■")21 L. K. 4 P. C. 212 Stewart 4S2 Young 247 1 Stuart 207 1 Stuart 3.J3 1 Stuart 222 1 Stuart 1.S7 5 P. I). 14 1 Hag. 1.5S L. K. 1 A. A E. 1 H. i^ P. 444 Stockton 103 1.37 r. S. 1 18 Can. L. J. 285 2 Stuart 140 3 Pugsley 1.59 2 P. I), i oN.ofCas. 4.")0; L. R. 4 A. & E. Stewart 205 (1893) .A. C. 408 1 Parker C. K. 1 OC) L. T. 132, 8 .Swa. 3(i7 Stockton 9."> 1 \V. Rob, 172 4 L. T. N. S. 411 Lu 33" Young ()•") 1 Stuart 237 7 P. D. 1S.5 Stockton 127 Mogul S.S. Co. V. McCJregor, i ^ '* ''^- ^- j^' ■*' RTKD. ..* ... r 59."., A(ir 119 105 110 t)57 98, .-)62, 584 , OOI) 607 632. 643 8;- !, 84, 612, 689 345 ... ... 550, 420 571 1.53 ... 592, (552, 99, 653 562 665 425 549 ().58 .')42, (!02, 610, 624, 627, 641 105, 561, ()20, 6.50 556, 593, 595, 618, 669, 691 542, 626, 634 639 190 14S 13, 9.1ur. 94 44, 85 119 2(iS 547, 5 -.76, 587, .589, 625 620 167 (;26 98, 5(54, .584 607 171 1.54 3 W. Rob. 21 98, 104, 134 129 155, 645, 420 669 9 Times L . R.6 24 164, 166 8S ... ... 263 r. L. R. 37 8 ... 668 603 556, I 576, 585, 590, 607 128 142 191 . . . 604, 607, 631) 556, 590, 601, 618, 632, 103, 134, ti42 424 604 21Q. B.D. ■".n * •• 177 98; (1892) A.C. 25 •ASK. Moliere, .Munica, .Monarch .Monarch Monark, •Man.'ighan v. Horn, .M. >.fo.\am, -Alnses r. Marferian, .Mnrning Light, -Munday v. Marv, Nancy, Nancy, Nash's Case, Napoleon, N. Churchill, and : uianton, Nellie, Nelson, Nelson, Nelson Village, •Neptune Neptune the Second, Nettles worth, New Orleans Packet, New York Packet, New York Harbor Pr '•• The CJara, Newbattle, Newham, Nevada, Niagara, and Elizabet Night watch. ... Niiibe, Xor. '_]['[ Nordcap, Norma, Normanton North American, North American, North Star ^'orth Star, Notting Hill, ... N. H. (xosfabrick, Nuestra .Senora del Carn TABLE OF CASKS CITED. xxvn CASK. Moliore, M(inic:i, MoiKin'h, Monarcli, Mfiiiark, MaiiJif;lian v. Horn, M. Mfoxam, Miises r. Marferlan, Miiriiing Lijrlit, Miinday v. Mary, Nancy, Nancy, Nash's Case, Napoleon, N. Clnircliill, and Nor- "^^ nianton, j Nellie, Nelson, Nelson, Nelson Village, Neptune, Ne|)tune the Second, Nettlesworth, New Orleans Packet, New York Packet, New York Harbor Pro. Co.) V. The Clara, j Ncwhattle, Newhiun, Nevada, Niagara, and P^lizabetli, ... Nightwatch, Nile, Niohe, Nor, Nordcap, Norma, Norrnanton, North American, North American, North Star, North Star, Notting Hill N. H. (rosfabrick, Niiestra Senora del (Jarmen, WnKKE KKPOKTEI). 1 A(iK (IS'.t.s) p. : :i7 . • • . • • ... H78. H85 (ook :UA . . • . . . 550, 572, 587 1 W. H..b. 24 ... ••* ,,, 99 12 1'. I). 5 ... . .. . . . • . • 154 Cook 341 ... 545, 584, 6o:i, 628, 689 7 Can. S. C . R. 409 (1882) ... . .• . .. 1(!6 1 P. I). 4:i. 107 ■ . • . . • . .. . . * ■ . . 50 2 Burr. 1005 ... . . • .• • ... . .. . , ()09 2 Wall. MO . . . .X ■■■ .*• *. . 105 Marsden's Ad. Cil8 284 ... • ■• ... , , 51 N. Stewart 28 551 Stewart 49 630 4 P.. i^ Aid. 295; 2 W m. Bl. 806 260, 297, 300 (7 Bissill 39S (1877) ) 138 (23 Myers' Fed. Decs. 256 j" Cook 65 ... 567, 692 29 L.T.N.S. 516 .. 149 Cook 296 587 1 IlaR. 176 36 1 Stuart 156 550, 555, 649 1 Hag. 2.S6 134, 146 1 Dod,s. 467 556 Cook 363 545, 572, 588 Stewart 260 591, 633 I Stuart 325 560, 605, 606, 629 23 Wall. 1 146 lOP. L). 33 128 1 Stuart 70 543 546, 617, 641 16 Otto 154 105 1 Stuart 316 ( 550, 1641, 559, 618, 620 ()49, 670, 671 Lush. 542(1862) .. 162, 188 L. R. 4 A. ^ E. 449 14S 13P. D. 55 190 30 L. T. N. S. 576 377, 385 Stockton 172 549. 664 35 L. T. N. S. 418 377. 378, 385 Cook 122 646 12 Moo. P.O. 331; S >wa. 358 109, 114,425 hush. 79 443 Lush. 50 36 16 Otto. 17 92 9 P. D. 105 104 Swa. 344 119 Stewart 83 593, 630, 633 Hi' i':- ,1,."-- .WVIII TAIJLK OF ("ASKS (MTKD. 0. (ASK. <);iklii'l(l ( >c(':ill, < Iccail, <>('fitH, Olivier, < »riit:iva, Orcf^dii Stciiin Niiv. Wiiisor, Oriental, Orii'iital, Orii'iit, < >ri()ii, Osfar, and Ilattie, Osniaiili, Otter, Otto Hermann, .. Otto, and Tliorsit, Palmyra, Palnierin, Para, Paramatta Pa]>ineaii, Patty, Patriot, Paul, P. Calami Peeress, Peerless, Peerless, Peerless, /)( Re People c. Martin, Persia Petersfield, Petrel Petrel, Petunia, Pliilotaxe, Plu.'be, Peekforton Ciistle, Pieve Huperiore, Pilgrim, Pladda \VlIi;UK IIKI'OUTKI). (Au;;. ;n. isiM) 2 W. Uol.. it! •I X. oiCas. :^:{ lO.Jur. .')()(! Lush. 484 Marsden's .\d. (" 20 Wall, M P. C. 4(»S 2 Stuart 144 L. K. ;! P. ('.f)9t) Stewart 4!»7 3 K. C. R. 241 . iv\i;k (WIS 14S i;h» 4;'.4 91, 94 179 .S W. Kol). 219; 7 X. ofCas. S22 L. R. 4 .v. 1^ K. 20;{ :!:; L. J. Ad. i.s9 (1894) A. C. Ill) 4;i 10."), r,rA, 020 I'm, 414 o.")2, 617, B.i4 600 4X\ r.07 ... 174 2 Stuart 4 Cook ;{"))S ')() Fed. Rep. 241 Stoekton 192 1 Stuart 94 Stewart 299 Stewart MoO L. R. 1 A.& K.r>7 (189:5) A. C. 207 Younf? 2()o 38." r>r,2 063 171 078, 601, ()20 (i46, 627 630 j Lush. 40 ; >[acPherson's | ( Prac. Jud. (.'om. l.")() | Lush. 103 1 q. B. 143 1 Parker Crim. R. 187 .. 1 Spiiiks 166 Marsden's Ad. Cas. .332 ... (1S93) P. 320 3 Hag. 299 .")3 L. T. X. S. 91 ( 29L.T. X.S. .51."i I { 37 L. T. X. S. .")40 j' .'■)94, 64.") 436 .374, 38.i 614, 674 65, 98, 428 IH 176 261, 299 2.')."), 2.") 6 183 91 199 447 131 1 Stuart 60 2 P. I). 222; 3 P. D. 11 L. R. .') P. C. 482 148, 379, 386 .542, 609, 628, 637, 648 376, 38."i tewar t .")33 02, 6.") 618 2 P. 1). 34 • Asi.;. J'iov,.,- I'lyiiioMth Rock, I'li/imna, Potoiriac, Pniitida, I'rait V. Tap ley, Pride of Kmrland, F'rincess Alice, Princess Alice, Princess Royal, I'rincess Royal, and 1 Princess Helena, Prince of Wale.s, Progress, Pro<;ress, Providence, I'rovidence, '^iel)ec,an(lClia.s.CIiai '^lehec, <,|iiel)ec, Queen Mah, <^ieen /•. Judge Cit, London Court, Queen of St. John.s, Queen v. Chesapeake <'"'•«" Queen v. Gold \\'atche Queen v. Flint, ... Quickstep Haft of Timber, Rainbow, Hiijah of Cochin, Ramsay r. Allegre, Ranger, Rasche, Recovery, Red Jacket, Redondo r. Chaytor, Reg. r. Judge Cit v Lon Court, Regina, Regina v. Heane, Renjior, TAIJIJ-: OK CASKS CITKI). XMX (ASK .VIIKHi; KKI'ORTKI). Plover, I'lvmoutli Kotk, iiiiiiina, I I'oldniiic, I'niltidil, I'nilt )•. Taiilcy, I'ride of Kni'liiiKl, I'riiu'i Ali( PriiKi'SH Alice, Princess Roviil, Princess Helena, Prince dI" Wales, l'i'|if,'ri'ss Proijress, Providence, Providence, Stockton ]:\\ '.I Fed. Hep. 41. S 'J Stuart isi! 1') Otto. ('>;>() !t P. I>. 102, 177 .... ;! PuKsley ](\:\ .... '2 Stuart lH!t ;! VV. Uol). HO ..., L. K. -2 P. ('. 245 , L. K. :{ A..S: K. 27 I'rincess Koval, and 1-Jnliens, Cook 247 Lush. 190 C. N. of (.'as. Ml) 7 Mitch. 4;i;i Cook ;{o.s 1 Haj<. 3<»3 Stewart ISC tim, ii2'> ().")2 44 17S (152 I'JO ,.. 415 550, 570 .. 127 .. 148 104, (i'.fj 117 5S9. 54G, (130 < j>uelicc, and Chas. Chaloner, (^iii4)cc, (^nehcc, (^ucen Mai), (^ueen r. Jutij^e Cily ot'i London Court, Cartfo, (^iieeii V. (iold \Vatches C^ueen ?'. Flint, ... (Quickstep Cook 27 ... CooL- :',;i-4i •A K. C. U. 3;i 3 Ha.r. 242 550, 5(16 Queen of St. Johns, (^ueen c. Chesapeake and) i ()i i (1892) 1 Q. B. 273 31 Fed. Kep. 24 ... right 797 Young 179 Young 280 15 F.I). 196 )50, 566, oSl: 643 662 153 165 137 302 (104 (504, 614, 636 191 R. Kat't of Timher, Kainhow, Rajah of Cochin, nanisay r. Ranger, Hasclie, All egre. Court, Re- ina, ^egnla v. Heane He Ken por, Recovery, Red Jacket, Redondo v. Chaytor, Reg. r. Judge City London I (]3(j2) ] 2 W. Roh. 251 .... .53 L.T. N.S.91 ... Swa. 473 12 Wheat. 611 .... L. R. 4 P. C. 519 . L. R. 4 A. & E. 127 1 Stuart 130 Cook 304 4Q. B.D. 4.53 .... Q. B. 273 Y'oung 107 4B. iS:S. 947 8 P. D. 115 (1883) 190 131, 132, 135, 1.36 1.36 64 ...2, 385 ... 151 665 668, 623 ... 6(i8 65 548, 654 267, 272 150, 152 xxx TAP.LK OF CASKS VVVVA). <'ASK. Rc-piil)li('iin Kc'stU'ss, Kewjird, Kt'X ('. 4',( Casks of Bnindy, K«'K. '•. Kfvn, Rliondila Riiilto, Kicliinoml, HiKl'<>r«s iMindu, Kinxdove, liohh, Kobcrt I'ow, K()l)ert and Ann, Robert Dixon, Robinson r. Lyail, Roi'iiaway Roe, Roel)ii('l<, Romulus, Rosa and Ranger, Rosc'io lioslin Castle, and Glencairn, Rossi V. Cirant, Roufjetnont, Royal, Royal Arch, Royal Arch Royal Middy, Royal William, Rowena, R. Robinson, Ruby, Ruby Queen, Ruckers, Runeberg, WnKRK RKPOllTKI). I'AUK Stewart ')71 ")52 i;i Otto, tiy.t I'.to Stewart 470 617, ()o4 H Ilag '2'u '>ti t2 Kx. I). 2:«) <>:!, tlo 8 App. Cas. 54',» S() 10 Fed. Rep. 124 191 Young 1(14 98,607 S I>. 1). 182 ; W. & Hr. (2 ed.) 88 94 11 I'. I). 121 120 17 Can. L. .). (!6 ... 75), 83, 85, 628, 6S(»8 .Swa. 84 148 :U L. T. N. S. 2S:{; 2 Asp. N. S. :!87 127 1 Stuart 208 610 Cook 102 550, 587 Stewart 5.')6 590 1 Stuart ;^06 5-^0,559,646 5 C. 1!. X, S. 699 79 (1S9;5) P. 275 Cook 326 Young 260 Swa. 27() 2 Stuart 82 1 Stuart 107 Young 2.55 Young 168 15P. D. 139 Lush. 266 4 C. Rob. 73 (1801) Young 42 128, 435 SO, 84, 85, 545, ()89 ,. .. 647, 655 43, i;m 6.52 609, 624, 651 65SI, 665 ti54 419, 435 104 s. 636 Sabine, 101 U.S. 384 • *• .. 155 Salacia, Lush. 545 • • . .. 119 Saladin, Halifax 1844 248, 304 Sally Anne, Stewart 367 547, 617 Samuel Gilbert, 2 Stuart 167 • >* 600 San Jose Primeiro 3 L. T. 513 ■ >> .. 117 Sautanderino, 3E.C. R. 378 • •• .. 580 Santissima Trinidad, .... 7 Wheaton 28 • . > .. 26S Sara, 12P. I). 1.58; 14 A. C. 209 ..85, 120 370, 62.1 Saracen, 2 W. Rob. 451 ; 6 M 00. P. C. 56 . . . .. 12M CASK. •S'lnili, •'^•■"■ali, S.irali, S.'irah, Sarah .\nn, Sarah J. Weed,.. Savannah S. B. Humes Scioto, Scindia, Scotia, ScDtswood, .^'eaway, Seaward, Secret, •Senior r. Ward, Severn, •"^i'«eil ,. Rritish C Towing Co ShaiMion Shute c. Robin.s, ^^igtic and Rose C Silcsii,, Sillery. Silver Rell, ....",'." Simla, ^ir Ralph Ahercrom Sir CJiarle.s Napier, ■^ir 'S. L. Tille,-, •'^l00 , tUt) 79 ,,43o >, ()8y (i55 i:M (v->-2 , t)51 I, ()6o tio4 435 104 52 636 155 119 ,304 ,617 60(1 117 580 26>; |0, 625 12' I (•A>-K. Smi-iiIi, Saiitli, S.iriili, Siiriili, S.ir.'ili Ann, Sarali J. Weed, Savaiuiah, S. ]{. Humes Si'into, Sciiidia, Scotia, Scotswtiod, Seaway, Seaward, Secret, Senior r. Ward, Severn, Seweli r Uritisli Columbia ] Towing Co J Shannon, Siiute V. Rol)ins, SiK'ie and Hose C, Silesia, Sillcry, Silver Bell, Siiida, Sir Ralph Ahercrombie, ... Sir Charles Napier Sir S. L. Tille/, Skibladiier, Smith c. Brown, Smith V. Baker, Smith I'. Irwin, Smith V. St. Lawrence Tow ) J5uat Co., ) Snook's Petition, Siilis, Sophia, Sophia, Soulanges and Neptune, ... Spaight V. Tedoastle, Spring, 1 St. Cloud Stella Marie, |st. Cloud, Moomvaart Maatsehappy Nederland v. Peninsular, etc., Co., WriKHK KEI'OKTKD. Lush. .")4'.t ;{ p. I). ;vj l'.\(iK .52. 163, 164 148 1 Stuart Sii 158, 550, 590, 594, 639, 641 , 672 Yoiuig 102 1 Stuart 2114 2 I. owe I 5 (1876 Philadelpiiia 1S61 oiing !28 5'.)."., 656 5S7, 5'.»6 .. 139 .. 248 548, 647 .. 105 Davis 35!i L. R. 1 P. C. 241 151 1 Stuart 166 584, 615, 621. 6.".4, 635, 6.50, Wd 593, 6.53 669 \OlU1goL' Young 267 3K. C. R 264 2 Stuart 133 1(J.5, 550, 564, 620, 632, 635, 636 41 S, 5;i',t, 611 1 K. cS: E. 384 Stewart 284 9 Can. S. C. R. 527 1 W. Rob. 463 3 C. A 1'. 80 Cook 366 5 P. D. 177 1 Stuart 1S2 . oung 43 15 Jur. 865 L. R. 1 P. C. 454 5 P. D. 73 8 Can. L. T. 156 3 P. D. 24 L. R. () Q. B. 729 (J 891) A. C. 325 5 Can. L. T. 573 L. R. 5 P. C. 308 Stewart 427 159 6()9 191 94, 99 130 572 550, 154, 174 651, 6.12 ()5t) ... 135 ... 174 ... 126 590, 614, 672 174 i3, 58. 59, 86, 159 171 631 190 10 P. D. 62 1 Stuart 96 1 Stuart 219 Stockton 1 6 App. Cas. 217 L.R.I Ad. 99; 14 W.R.975 Stockton 140 1)25, ()44 ... 417 595, 626, »)29, 636, 646, 691 551, 595, 621, 646, 667, 691 575, 671 190 Yo ung 16 Br. i*c Lush. 19 7 App. Cas 795 (1882) 376, 385 174, 604, 664, 665 ... 635, 659, 660 434 94 t^- XX.NIl TAIiLK OK (WSi;.-; CITKI). (ASK. St. JoM'lll Sl.Oliif, StratliiiMVCf, Stfdiij; r. Hurt, ... .... wiimtK itKi'ditri:^. :; K. ('. |{. :!ll L. u. ■-• .\. \ K. ;;i;() 1 .\\>\K ('as, .-.s ti li. A- C. lUO (].")('. I!. N..^. To't ] " 1! .Iiir. N.S. pt. i,-_'ll )■ Stfwart 7" 1 I'.rdwn .")"J 1 ( >il(). ".'((S YoiinK 10!» Swa. :{(l •_' \V. ll(.l). 48.". •1 1'. l\ iir> L. ir ■-' A.cS: K. •_>» L. l!.ti !'.(". 1'27 .. 17,1 I'AdK ... .V.l ISI, ID! i:<.". Siil'iiiariiu' 'IVk'Ki'fipli ('•'. l>i(ks((n, Siiffoss, Siiiiiru'r, Stiiiiivsiilr, .... .'.'J I.VI 111.") S. \'. CiiDimi), .... r..".i Swallow, Swit/crlanil, .... Kill s Swmisoa, Svlnli, Syria, 11K> Talliiit r. Scanion, 'raiiiaahinali, Tasmania Ti'ddiiiifton TtH-s, Ti'iinant r. Ellis, Ttvst, Tir/.ali TickiiT Thames Thetis Thetis, Thomas Worthington, Thomas Lea, Tiiomas Wilson, Thornley Thracian, Three Sisters, Three Relations, Three Brothers, Tornado, Toronto, Trelawney, Treton, True Blue Turner v. Mersey Docks & Harbor Board, Tweed, .584, ('.41, } 1 C'ranch. 1 Stewart 2-'jI VA V. 1). 110; l."..\.('. li'j;{ ... Stockton 4.^ f loS,l(51, Lnsli. .lO-") C. (^ I'.. I). If. (ISSO) .". X. of Cases -27(1; li .Jiir., W98 4 1'. l». W.', Yoiiiii? l(i(> '2 Stuart -J'J^ 3 Hag. 14 4S 1 Stu.irt ;{().•{ ■A W. Kob. 128 ;«L.T. K.S. 406 . Stewart 2t'.9 7 Jur. (i.'.lt L. R. ?> \. I't E. .•)04 2 Stuart S70) Younf? 149 ) Marsden's Ad. Cas. 331 Stewart 9!) 2 St\iart 172 1 Stuart 170 158, .542, 3 0. Rob. 21(1 17 Can. L. J. N. S. 189 2 ' '. Rob. 170 (1892) P. 285 1 Stuart 132 I4t; .5.'.2 1S7, ;i79, liStl 545, 547, 575 590, 614, 620 14S 82 9. 22 r; (w4 5 .0, 582, 5s.) 145 644, 646, 6C(i 12.5, 127 379, 38(1 552, (V.VA \)[i 4'_'> 44, 553, 606, 614, ti32, 6.'^!' 9'.' (KM 5(5! 549, 591, 5'.i'> 14> 624 l.-)4 KW 6(i'> 'ASK', Two M.iles of ('„t ■''"•n KlIeuN Two Friends Two BrotlierH, ['Ilia, I'iidaunte" S. S. Co ,.. A 'iiionS.S.Co.,,. \, I'tc. S. S. Co. f'niled StiUe.s, ' • S. V. K'lintoek, f. S. r. Smith, ' S. ('. Palmer, Vandyck, Variuia, ^'aruna, Velocity Velocity Venus, \'enus, ^'enus Cargo ex, Vera Cruz, ....'. \'ictory Victoria, Villediil[jiv,.y \'ir^'il, Virgil, Vivar, ^'olant. Volant, \'ontlgern ^\'alter S. Frost, Walker, Wanipatuck, Wanata 3a TAiu.;: OF CASKS citfj). XXXlll TASK. WIIKKK KKI'OIITHI). I'AOK Two Hales of Cotton, .... YoiiiiK \'M> .•)il'2, (if).'i Twit KllciiH, L. K. 1 V.C. ItiO; 11 L..I. .\.1.3:? . 121 Two Krienils, 2 \V. u,.i.. ;My 17-1 Two Brothers, Sti'wart .").') 1 69r) riila, I'lidaiinted, u. J L. K. -2 \. \ K. 'jy n. ) ( H» L. T. H. r>7y j l.iisli. i). (.'iis. ,'}S9) rm r,.<. -o- ' y < _ > •^•>0, <)(jb, o8o, Clair, ) |;{(; L. T. N. S. loo j I'nion, riiioii, I'nion S. S. Co ('. A mean, I'nion S. S. Co. v. New York ) etc. S. S. Co. )" I'nitcd States, ... r. S. V. Klintock r. S. c. Smith, r. S. r. Palmer, 8-2 I Vanilyck, t)>) ■ \ ariina, ■> H \'aruna, sl Velocity, Velocity, 14') I \'enns, ()(>i> 1 \'enus, vi: 1 Venus Cargo ex. oSli 1 Vera Crnz 'Sl \' ielory, Victoria, A-l^ 1 \'ille (111 Havre,... g:.. 1 Virj-'il, ^'irgil, 56i ^'ivar, Volant, Volant, 5'J'> \'ontigern 14^ 6"2I IM Walter S. P'rost, ItU Walker, , Wampatuck, tUi' 1 Wanata, 3a Lush. 1'2S; ;W L.J. Ad. 17 Stewart [)H L. K. (i P. C. 127 •24 How. .S07 Stewart 11 (i ") Wheaton 152 o Wheaton l'')4 3 Wheaton ()1() V. ly, o2, Ifi.'J. IfiC. MS, ijy, l.-,(t y, f)(j(j. 585, J4.'i 119, 120, 4iy ... 554, 191 98 ... 5S:5, 633 248 248 2(51 267, 270 7P. D. 42 . . . 148, 181 1 Stuart :r)7 615 622. 62«, 667 W. •& Br. 429 n . . • > ■• ... 154 James 39U (1855) ... ■ •. ... 623 L. K.3P.C.44; 39 L.J. Ad 20 2, 86, 87, 385 Stewart 9(> * .• 595, 616 Stewart 12 • •• ... 645 L.K.I A. AE. 50 > • « • . . ... 436 9 P. 1X88; iyApp.Cas.59 53 159, 167, 169 Cook 337 • •• 5y6, 662 12 P. D. 105 • > ■ 161, 162 7 Benedt. 328 • • • • ■ i ... 105 2W. Rob. 205 • . • • ■• 98 7Jur. 1174 ■ i . ... 158 2 P. D. 29 . . • 415,418 Br. & Lush. 321 . . ■ • •• ... 420 IW. Rob. 387 , , , 128, 414 Swa. 518 >.. 103, 424 w. 5 Can. L. T. 471 Stewart 105 Young 75 5 Otto. 600 590, 614 ... 665 51)8, 64S 92 XXXIV TAr.l.K (>K CASKS ("ITKD. CAKK. W IIKUF, Hi;iM>UTi;i). I'AiiE Wan-iiir f r.. 1!. ;< .\d. .V.:; i 1 •J7 L. '1". N.S. KM ) 'A7-, 378, .'580, 386 W. A. Sliolidii, l;ilM». s .. 41.-. Wit.sliiiiKiiPii, 'i Jtir. 1(1(17 .. HI. Oil VViLsliiiiyloii livinu' •J Stimii ",(7 .")8."., .■.ii;{. .'.IKl, (120 WiiVflct, 2Sliiart Xy\ ; Voimik;!} |.^M2,.".8H,(il2 r)72, 573 ,6;; 1,(137 \V. B. Hull M Can. I-. T. Kill (12(1, (.110 Wt'lfni'f V. I.oiidoii and ) L. K. •» (}. !!. (ili.J . i.')i» TiriKliton, vU: Ky. Co. J W. K. Wicr Yountc M"> (140, (147 We'll' ilero Yoiiin; |;!S .■.7'5, 6211, 631) WcslniinHU'r Kstato, olc. ... •1 IMJ. .J. \ S, L'12 ... 82 Wcstnip /•. ( ircat Y.aiiiKHitli 1 4;;cii. 1). 241 65, 1110 S. ('arryiiij,' Co. ) W. (J. I'iiliiaiii, YoniiK 271 64(1, ihh) White Kawn, Stockton 200 583, 60(1 Whiti-Star L. K. 1 A.iS: K. (18 ... ■ . * .. 142 William !•'. Salibni, Ijish. (Ill 119, 120 William Moiii-y, 2lIaK. i:i(l .. 13.-. William Cook 171 nil. ,-.44, 650, 5611 William Syiiiiiif,'ton, 1(1 1'. 1). 1 t .* ... 436 William Iliitt, Lush. 2.") . . . ... 420 Willcm 111., L. K. .! A.Si K. 4.S7 . .. ... 152 Wilson f. Can.SliippiD^^Co. 2 App. Cas. I^sy 22 Win-all, ;! W. Hoi.. r,(i . . * ... 104 W..J. Aikcns, 4K.C. K. 7 612, 614 628, 690 AVo' irn .\l)by, ... 21 L. T. 707 ... ... 174 Woodrop Sims, ... 2I)ods8;i ... ...26,555 Wood r. Pitfield, 2(J N. P.. 210 Y. • . . ... 171 Yan-Vi'an 8 1'. 1). 147 z. ... l.v; Zaml)esi, and Fanny Diitard, :; K. C. K. (17 (1(11 Zephyr, 2 1Iag. 4:^ ... ... 150 Zopliyr, 11 ].. T. X. S. 3.-.1 . . . ... 414 Zojjhyrus, 1 W. Kol.. 82l» 149, 151 Zeta. (1891) P. 21(3 ... 164 Zadok, OIM). 114 ... 578 Zodiack, Stewart 'V.V,^ .. .. . . • 601 '"inilty ill Kii^r 'f i" Uinv iiii|,os; '"'^'110, and w|„ '''■''I'l.v Jva.l in ( •'^''■•'•''licilt |||„,|, 'lie early liistni-r '"' <'')iiH(loiV(| at I'lisliing any I,,.,, '"'-^y |)nu'titi..ii,.|. ^'y '"> nicaii., i,„^ ='" pracfically. | •'"•' 'at.'st (litvcio "'' '''"'Iv u.sa-(., I, vicu-.s „f' tliut givj '"'t' l>raiicii of car <""'on„. ,,, f""<^'^ that fhcilitv , l"''^""'noi,t at the'j.i " «iniiJaritv hotuc.i Kurope. Tiii.s J.a. ulicn Jio .sav.s: "T 1 lXTI{()l)i:CTI()N. 'riic hcjjjiniiiii;,' of tlu' jiir'nilictiiiii (•!' tlic Hi;;li ('miit nt' .\il- iiiinilty ill l%ii;^liiiiil dtitcs t'loiii an tiirly pcrioil in Mii;,fli.*li histnry. It is now ini|>ossil)l(' to li\ tin' |)rt'cis(' tinic win'ii that jurisdictinii ix'jxaii, and wlirn it \va> lirst exercised. Tlie opinions of tiwist- deeply n'ud in the iiistory and antiijnily of onr laws are far from a;freenient npoii tlii- point. A short dissertation, therefore, upon tin' earlv history o I' A duiiraltv inrisc li.-t loll inav, i»v some reailer: considered at hest hut useless speculation — incapahle of aceoiii- plishinui; any heiu'licial pnr )OSl' and of no practical utility to the hnsy practitioner. The statement, however, is ventured that it is liy no means unscientific to ^tinly jurisprudence historically as well as practically. It is l)oth wise and proper to trace the rise, ijrowth levehjpimMil of everv Itranch of law throuiih its pen o( and latest of early usa;;e, legislation and judicial decision. Such were the views of that _<,'ri'at French jurist, lOmerii^nm, who, when disciissiii".' one hrancii of early maritime law, w dat rote that " 1 vesearclies into th( inti(|Uities of tlu.s lej.fisiation will not appear useless to those persons ivho may have remarked that these ancient doctrines, of which inaiiv are no lonirer in u ■;(', are nevertheless the foundations of t (h others which are in vigor in the present day, and wliicii it is eon- «eijueiitly diHicult to comprehend thoroiiLdily without having refer- ell ee to the ancient doctrines The learned reader well knows that tho.se lairsuing this method of investigation soon discover that jjrincijiles of law and rules of decision, supposed to he of modem origin, were familiar, and fully reccjirnizcd in the IcL'al coiles of eieiit States. T'hese remarks are especially applicable to the la an tf maritime nations. ws Tl le ancient maritime codes or sea laws have come down to the i)re>ent dav, and niav he found amon» in as wluii tlie Ilhouian.s Hr.st obtained the .sovereignty of the sea, which was more than nine hundred years before the Christian era. (Mcero, in his oration on the Manilian law, refers to this compilation, not only as well known in his time, but as having attracted the admiration of the world. The best authorities are agreed that the compilation lia.- been wholly lost, but many of the principles embodied therein have • 'oniedowii (o f" SeJ,|,.„_ ,j, time of Tiberl <»' niaritiiiie j '"«'cd ii, ,)„. ^'"••re can he •Augustus dec], in this I,,, wiw """led Kiiipert '•'•■'•'••Itohiiii wi '''<■ sea to (hiit '»'hodian law oi "Iwerved in f,|(i laws of Ii,,„„, •^•ignstiis." (•}] " ('H' lionians ne fi"n.s, iiof\vith,stai <'iiltivafion, mctl, laws. They .seen •■•'gnlations of th, .government was <'an hu (Jire<-tJy t,, 'It, xi Irvitinlw ]i„r f'litlnnt' smriiitiir, *'"i'l>t but that tl very early p,.,.i,„| ""iiiy cases, tn ..„i "lerce and civiliza ii'id customs of t thirteenth ceiitiirx CoiiMtiuto dri }[„,'., '''I' laws of ()|,.,,„, <;Jeron; the hiws n iOurope, especially ••••""action to notice <'^' these different ct ""■"•J of the reader, file Jaws of OJcron '"■■^t opinion at the l^^lls of Oloron. i*ark says these , <'JJ Khodian laws, wi INTKohrcTIoN', xxxvn collie < I' >\vii to lis tliroii;rli t ln' iiu'diiiiu ol' I lie Koiiiaii law. AiconliiiL,' III Seidell, tills roih^ was iiieor|iorate(| into llie Uoiiiaii law in tli<- time ot'Tiliet'liis (!|au(lilis,uii(l A/iini deelares it to lie "tlie t'olllltaill ileclared llieiii (o he a part of the law ot' the I'Jiipire.and ill this he was followed hy Antoninus I'ius. Tlic answer of the last named l'lm|ieror to an application for his decision upon u case re- ferred to him was as follows : " The earth is suhject to my dominion ; llie sea to that of the law. Let the east! he determined hy the Uhodian law on naval alfairs, the provisions of which I direct to he ohserved in future in all cases where lln'y are not repuj^nant to the laws of Konie. 'I'he same decision was formerly made hy the divine Aiij,'ustus." C'hunccllor Kent is authority for the statement that " the Komans never di^'ested any j^ciicral cofle of niaritiiiie re;,'ula- tions, iiotwithstandiiii; they were pre-eiiiineiitly ','/'' lihodid cavrtHf, lit, ni Iri'diidd' iKin'K ijrdtiii, jiictun incrrlitm facluH rut, oiiniiiiin coiitri- hiitione sitn'intiir, ijinxl pro oinnibuA dittiim I'st. There can he no latter sprang the law mercliant and customs of tlu' sea ; and hence arose, hy the middle of the thirteenth century, written codes of maritime laws, such as the Coiifio/ato del .l/'//r, cmhodying the customs prevalent at Barcelona ; tlie laws of Oleroii, being the usages oi' Bordeaux and the Isle of < )leron ; the laws of NVishuy, tbllowed by the countries of Northern JOurope, especially the Ilanse towns. It is not necessary in this <'onnection to notice the many discussions as to tlie age and authority of these ditt'ereiit coiles, and many others which readily occur to the mind of the reader. There has been much discussion as to whether the laws of Oleron or Wisbiiy was the more ancient code, but the b'st ojiinion at the present time concedes that distinction to the Ivolls of Oleron. Park says these laws " are in substance but an abstract of the old Khodian laws, with .some additions and alterations accommodated wmm XX.Wlll rXTKODlTTFOy. td the practice of that ajrc and the ciistiPi:!-< of the western nations," and that tliey were proposed as a " coniinon .tandard and measure for tlie more e(|ual distriixition of justice anionjist the people of diHerent ;.''ovcninieiits. These excellent retridations were so much esteemed tiiat they have heen the iiuidel on which all modern sea laws have heen ioundeil." They were j)nl)lisl)e(l about A. I). 1 ]•")<) by Eleanor, the mother ol' Kichard I. ol' I"'ngland, and witii additions possibly of that mon- arch adopted into that country. Hallam ridicules the statement, at one time industriously circulated, that these laws were collected and declared by Ivichard l.at ( )Ieroii on his return I'rom the Holy Land. The i'act is now well estal)lished that Itichard did not visit the island of Oleron on his way home, and a late wiiter ( 1 ) suj,^<,fests that all that is meant by the roll entitled '" i'ltscicithi.-i (Ji> supcriovitufe }iiitris,'' is that KiuL^ Kichard adopted and sanctioned these laws as rules proper to lie observed in J'higland. It is important in this eounectioii to know that, by common consent, these laws are admitted to be th" foundation of aP the lOuropean maritime codes. They were adopted in Kniihuitl at a very early period, the precisi' time it is now impossilde to slate, and were incorporated into our ancient st-a laws as found in the i-51ack l>ooks of the Ad- miralty. This work was compiled for the use of the Lord High Adniii'al and his deputy, who presided as jiidoc in the Court of A (imiraltv- \\ tien T ravel •s T wiss issue(( volume one o f h lal work WIS nussiiu edition of the HIack l»ook in 1<'^71, the oritrii and could not be found. An iiKjinry at tlii' regi>try so louir back as 1S(J(S was met bv the answer that the officials "had never seei> SU( the Bhi \\ a book and knew nothini:' of it >v son> e, Seidell's MS. in liodleiaii lilirary at (>xford, was supinised to be the original •k Hook, but controversies on this point wvw >v\. at rest by the accidental tinding of the original book at the bottom ol' a chest in This was |uMor to the publica- l«7;!. the cellar of the Ad miraltv registrv, tioii of volume three of the work by Sir 'i'ravers Twiss in 'i'he result of an examination of the original b\ Twiss satistied him that no part of the writing (d' the iJlack liocd-w was of a period earlier than the reign of Henry VI. (A. J). 1422 1. liut it also disclosed satisfactory proof that it contains ordinances pur- )f He'irv J., Kichard L, Kinii j)orting to he made in tlie reigns o .bihn, and Edward I., respectively. In the two MSS. now in tlu archives of the Guildhall of the Citv of Eond n, and in other records which directly coiuk HIack Kook. Thest' laws the time of I Courts for th time there is "rganized trib I'cigii of that I this ruler is du wliich (ieserve(: To ascertain tliese Courts, \x 'uissioiis i>siied judges. Anion civil causes " t* policies of iii.^u,' lading, and all for freight of .s beyond tl;e . to them or eithe '■ver, to\vai(i> tl li't'laiid, or ,,iir or in any parts The delegatioi refers solely t( the Court i.- I'lit diction on the pi' "*' "iir ; and the ordinarily to the ''L' issued to aiK ^".vs: "Th. 'Viz f" the Ailmiralt '" ^Vestminster I '•>\v, the laws of ( '•y statute law. (1) Twiss. (Ij Kdwanis ixTiioDTc^rrox. WXIX records wliicli aro oxtiuit, tluTO are rcfiMviiccs to the law.s of Olcroii directly coiincclinj^ that compilation with the laws tniiiid in the Black Book. These laws were recoiriiizinl hy Kiiii^ John at IlastiiiL^-^, am! hy the time ot" Ivlward I. they had been adopted i»y the Maritime Courts for the dctermiiiatioii of sea causes (1) At til ame darh time there is no reason to suppose there were any rej^u organized tribunals for the settlement of these causes Ix't'ore the reign of that King. There is, however, a fair presumption that to this ruler is due the credit of organizing the first Admiralty Court whicli deserved tlu; name. To ascertain what was the extent of the jurisdiction i-xereised l)y thesi' Courts, recourse nuist be had ' the language of tiie old com- nnssions issued to tiie Ad miral, and to hi.- dejJUties, who were th judges. AW ong other powers and authorities he iiad liie right in civil causes " to hold conusance oi' {)leas, debts, bills of exchange, policies of insurance, accounts, charter parties, c()ntractions, bills of adiiiLT, and ail other contracts w hid 1 anvwavs coiiceni inonevs iHu for freight of ships hired and let to hire, moneys lent to be ])aid beyond the seas at the hazard of the lender, and also of any caus", business, or injury wluitsoever, had or done in, or Ujioii, or through the .seas, or pul)!ic rivers, or fresh waters, stn-.ims, and havens and places subject to overHowing, whats oever, within the tl owiiiir am elibiiig ci the sea, upon the shores or banks whalsoever adjoi;iiiig to them or either of them, from anv the saiil tirsl bridiics whatso- ever, toward> tl aid, or elsewhei lievond llie seas or in any parts beyond the .seas wliatsoevei etc Th refers the O le diMcuatioii ot authoritv uranled in tlie ludtiT - lation. Tiie broad and eomjjreli'^'isive ])o\veis conferred hy the aneient commissions upon the Court increased the desire of the Admiral and his deputies to grasp at still greater jurisdiction. In those early times fees and emoluments were attached to the jurisdictions of the Courts, and the Courts were therefore naturally " ingenious and grasping in their efforts to extend their power." The Admiralty jurisdiction in this manner was strained beyond legal hounds, and loud complaints arose in eonse(iuence. Complaints were al.so madi' that other Courts were encroaching on the jurisdiction of the Ad- miralty. These latter comjilaints at length became so urgent that they were referred to Edward I. and his council, and, after con- sideration, the following ordinances were proclaimed by the King at Hastings, in the second year of his reign, A. D. 1274 : " Item : It is agreed at Hastings l)y the King p]dward the First and his lords, that as many lords had divers franchises to hold pleas in ports, their seneschals and bailiffs shall hold no plea if it touch merchant or mariner, as well l)y deeds as by obligations or other deeds, whether the same amount to twenty or f)rty shillings, and if any one shall he indicted for doing the contrary, and shall be con- victed, he shall have the same judgment as below provided." " Item : Every contract made between merchant and merchant, rd ed., '.)'2; Edwards S). Xlll IXTKODTCTIOX further providtMl that nil (|iU'sti()iis and clisputo.s ''of atiiititMit right Injluiitnii": to the iiiaritiiiH! hiw" shdiihl he tried in the Adiniraltv and nut in tiie ("mninon Law (."onrts (1). Tiiis jnriridiclii)n was not eonlined to maritime contracts, nor ti> contracts hevond the sea, l)nt was extended to everv contract "within the th)od mar! W nit is to he umU'rstood hv tiie " Hood nnirU niav !«' learned from Loril''nke"s jndLrinenl in Sir Ileiirv ('onstal)l( case II( av' It has been icsolved hvtiie wliole ( "onrt that thi soil npon which the sea dotii el)l) and flow, to wit, hetweiMi the hiu'h water mark ami the low water mark, may l)e parcid of a nninor (if a siihjecl : and wIkmi tiie sea doth How unto tlie full heiirht, the Admiral shall have jurisdiction of any tiling whatsoevei' done upon the water hetweeii the hiiih water mark and the low water nuirk : hut of everything- done upon the ixround when the water is returneil. tl le common law shall have iinsdiclion ; so that hetween tlu' hi::h water mark and the low water mark the comtnuu law and the Ailmir- alty shall have severally power, interchani^eahle as aforesaid." And practically the ume ( loctrine was laid ilown l»v Sir Koherl I'hilliniore, in /vV/. V. Kiij)i {'!). He say.- to low water mark, where the ' hiy;h sea.- r le c ountv extend heijin ; l)etween hiul and low water mark, the Courts of Oyer and Terminer had juri- dictiou when the title was out : the Court of the Admiral wlu n tlu tide was in. Tiiere appears to lie no suthcient authority for sayin; that the hi'jh sea was i-vcr considered to he within the realm, and ( 1 I ('I'lic tnlliiwiiiu- i-; till' ■^l;itt'iiu'iit in I lie I >la('K ixiiiK \U ■ti in(|nu V imikK' (•(iiu'i.'niinic .'ill tiiosj wiiue iJik' sue ;my iiu'iciiimt, iiKuriiKT, or utiui iiiTsiiii wii:il>iicv('r at ciimiuoii liw cil" tlie laiul lor itnv tliin<' nf aiintieiit ri'^lii I'Miinnnm' 111 the inai'itniu' aw, ami il' anv (ine is tlu'ix'ol' iiulictt'il ami t'llllVlc'. liv t WI'lVl' tllCll ha llif tiiK'il 111 the Kiiiu t'lir ills III .■full imt Vfxaliiiu- suite, aiiil licsi Ics ^liall n itlnlraw liis suite tVoin tiie (■(iiimimi law and sli hriiiif it in the Aiiiiiiraltv ('nurt. if iiei- will iinistTiiti' anv tiirtlitr.' 1' wi- ll. i,s; Articl In (• ..S ( Til h stateiiifiit 111' till' law is entered in the HI: ;//"■ .1./-/ tlitdii em im|llll'atiir ile lius seiiescallis et lia llivis ([iiiii'uiiu'iiiiii|Ue (luiiiiniirui 1 li. per eusleras iiiaii> (lnniiuia lialieiieiiiiii, (|iii teneiit vel tenere usnriient all([ili"l [ilaeitiiiii iiiei'ratnruiii Vel iiiaiinai'iiiriiin ediieeriieiis exeedeiis siiiiiin nil i|ua(li'ii- i^i'.ita sulidormii sterliun'ornm. Peiia, (|ui iiide indietati t'lieriiit et siijier lim lein ]ienain in supra et iudiciinu siihibmit. Ki eenvieti pe r ilnii teriiii, earn St (irdiuarin Mdwardi priiiii apiid Hastyniies renni siii anno seeiMul Kt nota, (pKid iiuililiet eontraelus initiis et t'aelns inter eaietitoreiii et nier torem, marinariinn, aiit tdios iiitra iiiaie, sive infra lliixnin maris vel relliixi vuljiariter dietiiin llmle tiiarkt-, erit trl ,iis et dot'^niiinatiis c irain adiniralli nun alihi |ier ordinai'i>iiiem predietam." \^-l) -1 Ivx. 1)., p. 117. (,;!) //;/./, •i,w. 'i"twith.staii(h'n^r i"id Plea.« of the the reiV, of K,| the (hictriiu' thill "f t'ountie.<." Tlu' Admiral, i ,iiii'is(h'ctioii over water mark wher tliehodyof iieoiin ill tlie time of K,| '"'"•'■vcr, (hM Hot iiflcinpted to enci <^""iirts,as nthor C( ii'"i, iind to restrai l'='^-^*''l- The A(h ''•■••'<'i' '"i.^cs whiel lioiised)reakin-:, tin "'"iiges, jiinl such >(-'o|K' of its authori "'"I fiui.sed the pji.. 1"' K'ichard f[., ,.. ; 'I'lu- statute \:\ \\ a- toHows : " Il< III : Fiira.si lialh i.ecii of'teiiti Admirals and thei "'' f'l"-^ realm, as w ''""' ,i-J'-eater atith, "f 'Mir Loni the K ihiiinishing of ,|iv idling iif the comi Admirals :i„d th( "iiytiiing (l„i,(. „;,j '•;'. :i-^ it Inilh hee Kduard.frraiHJfathc Miicli of the c.,1 <^"iirts of Common J f-'pahle of being p] die ;d)ove statute. ""t f" flit down anv ''""^' of Edward I., In, "1""' the land. u< im ixTRonrcTiox, xlni iint\vitli.stiui(linji; what is said by Hali' in his tiTalisi's, ilc Jure Muris aiitl Ploa.s of the Crown, there is a total absence of precedents since the reiyr of l'](Iwar(l III., if indeed any existed then, to snpport the ddctrine that the realni of Kngland extends beyond tiie limits (if cnnnties." Till' Admiral, therefore, according to Coke's decision, wonld have iuiisdiction over a maritime canse arisinj; between hiyh and low water mark wlieii the tide was flood, and vet this would lie within the body of a county. This same iiiri.>idicti(;ii obtained ami continued the time of JOdward III. This ample and extended jurisdicti( )n. however, did not satisfy the judicial ambition of the Conrt. It attiiiipted to encroach npon the jurisdiction of the common law Courts, as other Courts had attempted to encroach iipiui its juii, and 1") Kichard II., c. ;'>, trenerallv known as the re^trainiiit: statutes. The statute lo Richard II. .), was pa ssed A. I). ]:;si). and 1- a- tollow.- // I'll! . V irasmuch as a great and common clainor and comphiint A. alh iieeii oftentimes made before this time, and yet is, for that the iiiirals and their deputies hold their sessions within divers place> "f this realm, as well within i'ranchise as without, accroaching to then) greater authority than belongeth to their office, in prejudice i>t' our Lord the King, and the common law of the realm, and in shing of (iivi-rs franchis( s, and in dotructiou and impover- 'iiiiiiiii.- i>!iing ot tlie common j)eople, it is accon ami a.-sented tiai th Admiral.'' and their deputies shall not meddle trotn heiicefoith of anyihiiig done within the realm, but oiihj of a thing done upon the >ta, as it hath l)(>eii used in tlio time of the iioi)h' prince, King ■.ilw ard, trrandfather ■ i our Lord the KiiiLT, that now 1.- Miich of the controveivy between tlu' Admiralty Court and the Cmrts of Common Law arose in eonse(|Uence of the double meaning oa paltle of being j)Iaced upv-:i the word but oiilv," italicist'd ii tile al)ove statute. Th le intention ot tne enactment evideiitlv was iiMt to cut down anv jurisdiction exerci.sed bv the Admiralty in tl le time of Edward I., but to restrain it from meddling with cases arising lip"!! the hind. XIIV IXTKODrCTlOX. Mr. Hfiu'dict ( 1 ), ill lii> iihlc work, hiis cloarlyund forcibly puiiitod this out. 11(1 says tliat " hut only " is simply aiiothor expression t'oi nn/cs.s or rxcejit, and hy suhstitutinj^ cither of these words for the other two, it hc'-onies manifest that the intention was oidy to oxeludi jurisdietion on the land, and not from within th.' body of a eounty. if the suhject matter of dispute arose upon the sea, as, for instanee, " within the flood mark." The Admiral had attempted to exercise jurisdietion on the land between high and low water mark when tin tide was out, and also over dam:> and streams anii ponds which were tideless, thereby dejjrivinj,^ the Crown or the Lords of their aecu.-- tonied penpiisites. To remedy these ul)uses, and to put the (piestion beyond doubt, it became necessary, two years later ('2), to pas> the 1") Richard II., c. 8. This statute is as follows : " Ilevi: At the jxreat and grievous complaint of all the commons, made to our Lord the King in this present Parliament, for that the Admirals and their deputies do incroach to them divers jurisdictions, franchises, and many other proHts pertaining to our Lord the Kin;:, and to other lords, cities and b(jioughs, other than th-^y were wont, or ought to have of right, to the great oppression and impoverisli- nient of all the commons of the land, and hindrance and lo.ss of the King's profits, and of many other lords, cities and boroughs through the realm, it is declared, ordained and established, that of all manner of contracts, pleas and (juarrels, and all other things rising within the bodies of the counties, as well by land as by water, and also of wreck of the .«ea, the Admiral's Court shall have un manner of cognizance, power nor jurisdiction ; but all such manner of contracts, pleas and quarrels, and all other things rising within the bodies of counties, as well by land as by water, as afore, anil also wreck of the sea, shall be tried, determined, discussed and reme- died by the laws of the land, and not before nor l)y the Admiral, nor his lieutenant in any wise ; nevertheless, of the death of a man. and of a mayhem, done in great ships, being and hovering in tlu' main stream of great rivers, only beneath the bridges of the sanu rivers, nigh to the sea, and in none other places of the same rivers, the Admiral shall have cognizance, and also to arrest ships in the great Hotes for the great voyages of the King and the realm, .saviiii: always to the King all manner of forfeitures and profits thercdf coming, and he shall have, also, jurisdiction upon the said flote- during the said voyages, only saving always to the lords, cities ami boroughs their liberties and franchises." i)i- Lane, a i V. Jff(h/PM ( I ^ , was to restrain c( as was apparent •roached uj)on ti Mare Clnunum, c, ;ilty, and restore Olcron, wliicli w{ fnied them.selves This statute al against the Admi >ii«d in the Court ^''<'f- (-'. iO, sec. { Ufapon in the han 't-^ jurisdiction wit '''■^•t (2) thinks thi stniction put uj)on ''•'. it is certain it li •'v "It was upon die Admiralty wen ""^'•<' than two cent f" I\v the common 1 t'""- It was urged 'uuld have no juri ,i'"'isdiction. The statutes prohibited \ ^t' contracts arising i" their nature, and| ;»'t'iin the ebb and 'tliad jur.VIiction, i] '".ii'i'if.-i committed J 1;|» of the ti(l(>, an J '•'' Jiiaritime contral "'""^■'■■^ of J.rize and '''(^^ other hand, IicmI '" t"iitiHct» and aflil ^^"is an jurisdiction within the narrowest bounds. It is true Mr. lienc- (iict (2) thinks this statute was pa.s.sed to preclude the narrow con- struction put upon the statutes of Richard II, However tliat may be, it is certain it had no such efieet, for, in the language of Story, J., " It was upon these statutes that the controversies respecting the Admiralty were so zealously and obstinately maintained during iiiori' than two centuries." Devices of various kinds were resorted t(i by the common law lawyers to cut down the Admiralty jurisdic- tion. It was urged, and succe-ssfuliy, that generally the Admiralty could have no jurisdiction where the Common Law Courts had jurisdiction. The Admiralty Courts contended that the restraining statutes prohibited the Admiralty only from exercising jurisdiction uf contracts arising wholly on the land, and of affairs not maritime ill their nature, and torts or injuries committed in ports, and not within the ebb and flow of the tide. The Admiralty also contended it liad jurisdiction, notwithstanding these statutes, over all torts and injuries committed on the high seas ; in ports within the ebb and flow of the tide, and in great streams below the first bridges ; over all maritime contracts arising at home or abroad ; and over all matters of prize and its jncidents. The Common Law Courts, on the other hand, held that the Admiralty jurisdiction was confined Id cuiitracts and afiairs exclusively made and done upon the high seas, and to be e \ecuted there ; that it had no jurisdiction over torts, otl'eiices or injuries done in ports within the bodies of counties, although within the ebb and flow of the tide; nor over any niari- tiiiic contract made within the body of a county or beyond .sea, " i,' , ■ i (I) 2Ld. Kay. 1-J85. [2) Beiu'tlict Ad. (3 ed.) 3'.l. tol I Ml 1 1 1 1 ' 1 1 1 :^ Iracts iimdc n icirniLT tliiiii;s iiDt 111 lie payiiiciit ot" iiKtiic •(■ to he exe('Ut(' » il> I will Jlill Icr seal or /.111 ■.•■ Kill ^>ml t. iiiiv coiitrac'l coiitaiiiiii:^' iiiiii K'li as a conir , altlioii<;li iiiaritii itcil Miraiiist i liclplcss to ussiTl it 'iiai sii|iiiiai , .^ I II I I .^ M 11 Law. a I Iv question cnnilatioii a r.dwanis ( I tlic passii ............. ^, ........ ,._..■■■ L n \ <:w< ■ " .I(..il,.|i< t l)y tlic ( oiirts (it (.. •y IS pcrliaiis i K on witli wliicii the sniuTior (iiiini III I K I )) If I 1 I MM HUM- appears t(» ..» ii... 1....I (• ;. II 1 1 ! I V I • eoiiiis looK up I Iteen more <:ree(liiie.\*i>n le oniiii woiiderrnl that ot on oi" so ^ri'i ,11 ..*■.■%. V . .•^ .- . he f •"*. have ;_foiie in yond it, // ill tl iyiilw'tli III 1 .">' ), an a^rreenieiit was tweeii lli(! Admiralty and eo 4i.,,; ^.. .:.,,. :....: ..i:,.*: of their re.* ior a cessat ■■I /»- I. H \ V. I 11 1 I s 'VU, II oi iiie (listiiiguished Admi di:- lite between tl merchants loi twceii contracts i 1.. 1 said : '" lictwiv rival jurisiiic Admiral I L' / . .1 L' I n 1 1 f . f* ill)] il sea and obli; passed i diction. Institute was uKe a tn I. 1 1^11 111 l^ill/.ilO .1*.... ^<.ltlll.. .. 01i/!ili('tli !•' relict." Two st; a laiKi aiKi wuic atioiis made at se; luiies w( < ..:! I lie i.uici Muuiie, !i> sci ■ (■ •>•> u 1:!7 " (li'.;i-vil>ctl I) leiatiiiLi" to Adiniiaii on I l)v Lord t - 1 1 1\ ^ c. Lord A( of niiral's jur 1 1 i't II 111 111 1 particularly the tlie .- I v'»i\-. iivvi^ ■ before mcnlioiied. cse words. All ai CI the mam sea, or as hereaft 1 (t ^ti*\ be limy 01 mis reaii realm, and without the no limits id ever\ er, sliall be di larr oi iiie liberty of tl ... i^/.«»^. .> precincts, jui tried an It' v^iiKiiit^: wui in, iiii it ..1*111 1 1 1, til liitfi.i'.i t ud out of any haven iud o (ii'U'i iiiiiii'ii iii'iuic 111 It lA' till. \t'l>,.Li ■..ii'li.i i' Lord Admiral, or [1 ■ 7 Admii'ii gnient ot tlie wlioic ]) .. • ....1 : . ...1 .1 1 j:... nent eic. .^o i being no U IS Wli ..+' til. I li.>.li' ,\i' 1 to the inai the jurisdiction ol II se I /tl I The agreement i i I. i ui u in I M any county of this »r coasts (j " Ihe re(|U \.n -1 • '» was as foll( realm. Justice 01 tier 31 aj i.^i, w. I. IV .ludge of the .\ ivs : Idmiraltv t agreeme ,A' \r.iv i.".7 " h'rquc^f : T III, iiie Mil Ol ..iiiu , .1.^11 1 iifineut O. or sentence dcli I 1 1 I itive (2) ■") Kli/.. c ') — ■ the Court of thi 'he .«anie to the to forbear granti "'' 'lie said Coiiri I'v whom .sjjcli ji ''lilt way, in reas he relieved any o "Ayrenneitt : \ I'-iigiK's. that afte -liall be granted 'if Mot sued withii <'i'iirt, or within t\ ■■^liall pa.>^s to the d " /\'r(/nrsf : Also liare suggestion..; , I'l'oof made theree Admiralty and tJi, 'liivecoun.sel, and t cause. "Ai/irevieni: Tin :i"'l tlie party dcfei >'"y, if there may : " Ji'c ="»' lii*< colleagues, "J^'c'picsf: Til at t <""l breach of chart "it'i'dmiits, for voyag to be performed iIj)oi ii'TiLstonied, time on the .statute :jf ;{2 1 1'artie.s happen to be "Agreement: This , "'•'"•••I either upon (; i ""'*''■ i'J>o;i the land. IN'I'koDIC TloX, \l\ii the Cdiirt of tlif Adniinilty, in iiiiy cim.-f, ami u|i|iai(l Court, or to Her .Maj<'.-ty"s ilcItMratcs, at tlit- suit of liini, liall Im' piiiilc, Mtiiin- liv chiiicc df rcnicdv liv wnoni >ii('n a|i|)('a iluit way, in reason \\r ou^dit to he conttnttd llicnwitli, and not to he relieved any other way. "A(jrec)neiit : It is ajrreed l)y tlie Lord ( Iiief Justice and lii-; eol- leairues, that after sentence given liy tlie deieirates, no |)rohii)itioii :-iiall he ;;rante(l ; and yet if there ix- no >entence, if a prohiiiitioii i)e not su(>d within the next term foHowing .-entence in tlie Admiral Court, or within two terms next after, ut tlie farthest, no itrohihition shall pass to the dele<:ates. " h'njiii'.'^t : Also, that i)rohil>ition he not granted hereafter upon hare sutrg-estions or surmises, without summary examination and proof nuule thei'cof wherein it may he lawl'ul to the .lutlL^e of the Admiralty and the jiarty defendant, hy the favor (»f the Court, to have counsel, and to plead for the stay thereof, if there shall appear cause. ''A(/reeme7it : They have agreeil that the Judge of the Admiralty, ;ui(l till' party defenchmt shall have coun.-el in Court, and plead the stay, if there may appear evident cause '' Jii'ijiif.'if : That the -ludge of the Admiralty, according to such ancient onU'r as hath lu'cn taken (2 Kd. 1) hy the King and his council, and according t(» the letters patent of the I.,or(l Admiral for the time heing, and allowed of hy other Kings of this land ever >iiice, and hv custom, time o\it tif memory of man, mav have and 11 I'll joy th "nd le cognition of all contracts, and other thiuiis ari-ing, as we iievo as upon the sea witl luut any let or prohil)ition. ''Agreement: This is agreed upon by the said J^ord Chief Justice and his colleagues. " JiC<]nesf : That tlie said judge may have and enjoy the knowledge and breach of charter parties made between masters of shi])s ami inc'iclmnts, for voyages to be made to the parts beyond the seas, and to l)c performed ui)on and beyond the sea, according as it hath been accustomed, time out of mind, and according to the good meaning of the statute of -VI Henry \'I1I., c. 14, though the same charter parties happen t(» be made within the realm. I (jreemen t : This is likewise agreed upon. for tl nil us to be )er- toriiied either upon or beyond the seas, though the charter party be iiiiide upon the land, by the statute of o2 Henry VJII., c. 14. ■"f- XlVlll INTUoDrcTloX. " Iti'ijHf'Ml : Tliiit writs of corpn.i nun cnH'Ot he nut (lircctol tit tlit^ snid jiid^c ill cuiiscs of the natiir*' iit'orcsMiil ; and if any liapjii'M to l)(! din-cti'd, that it may pli'asc? tliuni i<» accept the return thereof, witli tlie cause, and not tht; l)ody, us it hatii always l)een accustomed. "A(/i'rniirnf : If any writ of this natur(! I)e dinM-ted in the causes Ixifore specified, they are content to return the bodies apiin to the Lord Admiral's j^'oai, upon certilicntc made of the cause to be such, or if it be for contempt, or disobedience done to tlie Court in any such cause." Tlie (^ueen does not appear to have bi^en a party to the a depending in the Court of the Admiralty matter between one Percie, of Norfolke, and a certaine Portingall, wherein the said Percie suetli to the Court of her Majesty's liench for a prohibition against tlu said Portingall or his Attornie for that this cause is said to be determined properly by the civill law and in the Admiraltie, Her Majesty's pleasure is and soe hath her Highness willed me to signify unto you that your Lordship and the rest of you associate Judges of the said (,'ourt have a speciall care not only in this matter of Percie and the Portingall, but in all other like matters concerning the Admiraltie, that the same being triable by mere civill lawe bo not admitted to triall before you at the common law, which of those marine and tbrraine causes is thought not soe properly and aptly to take knowledge ; and therefore that hereafter (unles.se the matter shall appeare soe manifestly to be triable by the common lawe a- that you may and will so warrant it) that you would remit the same to the ordinarie place of the Admiraltie, the credit of which Court for many good respects her Majestic would have by all good ineaues pieserved ; And .-ioe I recoijimend your Lordship and tlif rest most heartily to God; from the Court the VHIth of July. 1584." This letter is signed by Walsingham, who was Secretary of State. Fourteen years later the (^ueen addressed the following letter tn the Mayor and Sheriffs of London on tlie same subject : " Right trusty, etc. : Whereas wee are given to understand by our right tnistlc, etc., ('), .vou take i-p,,,, "iiites ari^i/i^r ,,j as l)eyoii(| t|„. "Iiereof (l,,tli p "in- Coutt of Ad liave been done ^-ondon; like a,- sur;nises the pr,. "linilty sli(,uld b: Lieutenant dcf'rii ''">ilght it meefe '" iutermeddl,. \y ••oiitract or other "iiy otIi(>r plut-e v it •^liall hiippc, ,1 you by any coiui, ie(|.iire you, wlwi advertisement had 'Ifsist to j)roceed tl i'lid every of you tlu- 16th day oV M During the Quei it is as.serted that < after her death th^ tlie front. James ] 'lis i)redece.s.sor, fbi' <^uoen's death, a,l, '^ondon of the sam Courts of Common 'estrictions .■^ougbt iirituting tJiat m a] iigreements of 1.57,5 •^•^•IGH. AlJth ^^'- Dunn, tlie Adin "ients the grievunc ^i'oidd be handed t "we dru^vn by CoJ ^i'i'-it-" He denied "''■^"notsub-scribed "iJ<' answers are set . ^■"■1, and are as folio \ 4a L\T|{()|)lcri'l(»X. XllX triir^tir, etc., i 'luirlrs, lOarl nt' Notiiijrimm, our high Adiiiiiall, that yoii take i')M)ti to hoare aid (IctcimiiK^ all niaiiiifr ot raiisrs ami -uitts afi>iii;.' ( i' cnntnift' aiiil ntlicr thiiij,'s happciiiiig as wt-ll iipoii as Ik'VoikI till! seas \>y attaclunciits or otherwise, the kiiowlrdm- uhcrcof (l.)th properly and specially heloiig and ajipertaine unto (lur Couit of A Kiti;;'s Most Mxccllfiit Mnjtsi y.ajiiiiiist tin- .Imlp!: of llif n-iilm, concerning' |iroliil)iti(ins yiarilcd to llic Court of llic Aflniiialty, 11 '//V Fihr. pniit/h'iiiii of Record. "Fourth Objeetio foniH'd nj)on the prohibitions. " The Answer — I port, town or couiit\ ^■ither upon the .sea.>', and determined hy t '"the Court of the A t'licroached uj)()n tli Admiralty and the oftentimes the party tlie laws of the realn "Fifth Objection - ^'I'tli foundation in I other grants, yet in INTKoDrcTIoX. 1i i\]\'ct of this Articlr), ilii lu'lonjj U> tlic coiistaltlf uml iiiiiimIiuI — l'«ir tilt' jiiristlictioii i)t' till' Adiiiinil is wliolly (■(nitiiicd to tlic sou, wiiicli is out of any ('(luiity. Hut if any indetiturc, bond or otlu>r spiM-ialty, >iv any contract Ih- niaiir Ixyctud sea, for doinj; of any act or pay- ment of any innncy witiiin tiiis rt-alin, or otlu'rwisc, wlicrciii tlif < oninion law can administer justice, and ;:iv(> ordinary remedy ; in these easi's neitlier tht! eonstaide and marshal, nor the Court of the Admiralty Inith any jurisdiction. And, therefore, when this Court of the Admiralty hath dealt tlierewith in derogation of the eoniinon law, we find that |»rohiltitions have been granted, as by law they ought. ''Third Ohjirtlon — Whereas, time out of mind, the Admiral Court hath used to take stipulations ior ippearunce and perforni- niice of the acts and judgments of the same ( ourt, it is now afKrna'il liy the judges of the common law that the Admiral Court i.s no Court of |{<'cord, and therefore not able to take such stipidations ; iiiid hercujxin prohibitions are granted to the utter overthrow of that jurisdiction. ''The Answer — The Court of the Admiralty proceeding by the latute of >( KHz. Ueginie, cap. 5, which proveth that it is no Court ?t of twelve mm, and merely determinable by the common law, and not within the Court of the Admiralty, according to the civil law. For that were to change and alter the laws of the realm in those cases, and make these contracts, pleas and querels triable by the common laws of tl'e realm, to be drawn ad aliud examen, and to be sentenced by the Judge of the Admiralty according to the civil laws. And how dangerous and penal it is for them to deal in these cases, it appear- eth by judicial precedents of former ages. But see the answer to the first article. "Sever. Ik Oh, 1575, bet V. -en t Advniralty, for jurisdiction, is i " The Answer liath not as yet read ov'er befor the hand of an differeth from th thi.s realm, and assented thereun agree with the te " Eighth Objec ♦liscussing of the; niation. " The Answer - oan be niatle ther l)eeu said that th( pally by colour of Jidvice, have unji realm, whereof th his lieutenants, o; croached and inti Crown, in that th goods and chattel other goods and c •"liip by his letters and ibr the which ^^laj^sty. And tin causes appertsiiiiinj jurisdiction of the ''o profits. And affirm) have been r)eace than before eroachments upon t do not only unjusti 'ne Keiilm for doinj Jt is not necessar liip by his letters i)atents, wherein the said nun obstante is contained, and for the which he and his officers remain accountable unto His Maj.'sty. And they, now wanting in this blessed time of peace, ciiuscj apperts^ining to their natural jurisdiction, incroach upon the jurisdiction of the common law, lest they should sit idle and reap )M) profits. And if a greater numl)er of proliibiti(.'is (as they atHrm) have been granted since tlie great benefit of thi^^ happy jHace than before in time of hostility, it movcth from their own in- cruachments upon the jurisdiction of the common law. So as they do not only unjustly incroach, but complain also of the Judges of tne Realm for doing of justice in these cases," It is not necessary to refer at any length to the above objections and answers. They cover the entire field of dispute between the rival Courts. The great objection to and jealousy of the Admiralty jurisdiction arose from the fact that it:* procedure was based upon liv IXTKODUCTIOX. r-i that of the civil hiw, and that causes were determined without the intervention of a jury. Our Angk)-Saxon forefathers ever evinced a tenacious devotion to the principle of trial by jury, and as this feature did not obtain in P^quity and '.dmiralty proceedings, both of these Courts encountered strong opposition. Both encountered the active, unyielding antipathy of Lord Coke. The Equity Court triumphed, but the Admiralty had finally to abandon its ancient jurisdiction. Even the study of the civil law was discountenanced. As early as the middk; of the twelfth century King Stephen silenced Vacarius, a distinguished Ijombard jurist, who had established a school of civil law at Oxford. In the answer to the third objection, it is put forward that the Admiralty, proceeding by the civil law, is no Court of Record. A Court of Record is one having power to fine and imprison. In Racon's Abridgement (1) it is laid down that every Court, by having power j^iven to it to tine and imprison, and \," '> proceedings may be reversed by writ of error or ccrtiornrl, is one of record. Why a Court proceeding according to the civil lav- is not one of record is not quite apparent, and Mr. Justice Story, it is submitted, completely disproves this statement of Lord Coke. Tiie ordinance of Richard I., at Grimsby (2), in words declares the Admiralty to be of record. And the same writer, in a note on the same page, says that in the Record Office there is a manuscript labelled " PkiciUi in Cur. AdmlmUtat. 1.5 R. II," showing it to be a Court of Record at that time. In the sa iie work (3j, under the title De Officio Adiiurdlifads, the language is, " eo quod admir- < ef locumteuenteA sui sunt de recoi'do.'' The Common L.nv Courts, however, held it was not a C'ourt of Record, and that continued until Parliament intervened, and in 1861 (4^, in express terms, declared the Court to be one of record. The application to James I., in 1011, resulted in nothing favorable to the Admiralty jurisdic- tion. Prohibitions continued to be issued to restrain the Court, and nothing further was done until the lime of Charles I., in 1632. Sir Henry Martyn was then the Judge, and he urged before the King and his Council the need of an agreement among the parties con- cerned as to the limits within which the Common Law Courts would allow the exercise of jurisdiction without interference. An agree- ment was at length reached. It was read in Council before the King, agreed to, and signed by the lords of Council and the judges. The following is the agreement : (1) Tit. Courts, D. 2. (-) 1 Twiss, 67. (8) 1 Twiss. p. 2;]7. (4) 24 Vict., c. 10,8. 14. " Tins day h propo..iiti()iis fo differences con Courts of Wes debated, and re reading the jsai Courts at Wesi Admiralty, and I'v them all i,, ordered to le en original to reuui " 1. If suit sh contracL< made, tipon the sea, no "2. If .suit be or for t!.e breach tlie !5ea, though i »'oaIm, and althoi tlie penalty be n but if .. If any be in '' • the cause of ir. >liall be remanded. ixTiioDrcTrox, Iv "At Whitehall, 18th of February, 1032. "This day his Majesty bei.ig present in Council, the articles and jjropositions following for the accommodating and settling of the differences concerning prohibitions, arising between his Majesty's Courts of Westminster, and his Court of AdminJty, were fully del)ated, and resolved l)y the Board. And were then likewise upon reading the same as well before the judges of his Highuess's said Courts at Westminster as before the judge of his .slid Cou.'t of Acbniralty, and his attorney-general, agreed unto and sub-signed l)y them all in his Majesty's presence, and the transcript thereof ordered to le entered into the register of Council Causes and the original to remain in the Council chest. " 1. If suit shall be commenced in the Court of Admiralty upon contracts made, or other things personally done beyond the .seas, or upon the sea, no prohibition is to be awarded. "2. If suit be before the Admiral i'or freight, or mariners' wages, or for the breach of charter parties for voyages to be made beyond the !«ea, though the charter parties happen to be nmde within the realm, and although the money be payable witl.in the realm, so as the penalty be not demanded, a prohibition is not to be granted ; but if suits be for the penalty, or if (juestion be made whether the charter partie were made or not ; or whether the plaintitt'did release or otherwise discharge the same within the realm, that is to be tried in the King's Courts at Westminster, and not in the King's Court of Admiralty, so that first it be denied upon oath, that a charter partie was made, or a denial upon oath tendered. ";i. If suit shall be in the Court of Admiralty for building, amending, saving or necessary victualling of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted, though this be done within the realm. "4. Likewise the Admiral may inquire of, and redresse all an- noyances and obstructions in all navigable rivers, beneath the first l)ridges, that are any impediments to navigation, or passage to, and from the sea. and also try personal contracts and injuries done there, which concern navigation upon the sea, and no prohibition is to be granted in such cases. " ■"). If any be imprisoned, and upon habeas corpus, if any of these I)!' the cause of imprisonment, and that be so certified, the partie ^liall be remanded." j;. Ivi TXTIiODUCTIOX. These resolutions are not jjrinted in the .same terms in all the hooks. As they appear above they are taken from Prynne (1). The second and fourth resolutions are somewhat different as g'»en by Browne (2). The reader will note that these resolutions eon- ceded to the Admiralty a jurisdiction full and ample, and in accordance with its ancient claims, a jurisdiction much larger than was subsequently allowed. Modern legislation, however, meetin;: the requirements of modern commerce, has granted all the jurisdic- tion conceded by the resolutions of lfio2, and very much in addition. All writers on Admiralty jurisdiction point out that these resolu- tions were printed in the first and second editions of Croke's reports, but omitted from later editions after his death. The reporter. Sir George Croke, was one of the judges who signed the resolution.-^. We have the authority of Sir Leoline Jenkins for the statement that the agreement of 1632 " was punctually observed as to the granting or denying prohibitions" till the time of the Common- wealth. And in Cromwell's time these resolutions were in substance re-enacted by an ordinance of parliament in 1648. The following is the ordinance (3) : (1) See Edwards' Ad. p. 23; Benedict Ad. (3 ed.) p. 51. (2) 2 Browne Civ. and Ad. Law, 1st Am. ed. 78. "2. If suit be before the .\ihniral for freight or mariners' wnges, or for breacli of ciiarter i)arties, for voyages to be made beyond tiie seas; thougii tiie charter party happen to be made wltliin tlie realm, so as the penalty be not demanded, or prohibition is not to be granted ; but if the suit be for the penalty ; or if the question be, whether the ciiarter party were made or not, or whetiier the plaintifi' did release or otherwise discharge the same within the realm ; this is to be tried in the King's Courts at Westminster, and not in Ills Court of Admiralty." "4. Although of some of those causes arising upon the Tiiames beneath tiie tirst bridge, and divers other rivers beneath the tirst bridge, the King's Court> liave cognizance; yet the Admiralty has jurisdiction there in the point> specially mentioned in the statute of 1-5 Richard II. And also by exposition of equity thereof he may in(|uire and redress all annoyances and obstruction> in these rivers that are any impediment to navigation or passage to or from the sea ; and also may try personal contracts or injuries done there, which i'oncern navigation upon sea. And no prohibition is to be granted in such cases." Dunlap, in his work on Admiralty, follows Browne, and tlie latter has copieil from Zonch on Admiralty jurisdiction. (3) This ordinance is taken from Scobell's Collection of Acts, etc., c. 112, p. 147. See also Dunlnp Ad. (2 ed.) p. 36; Benedict Ad. (3 ed.) p. 51. rxTKO])rcTrox. Ivii " The Jurisfli'cfion of the Coio't of Admlrnlfi/ Sett/rd. " The Lords and Commoii.s as^enihled in Parliuniont, finding many inconveniences daily to arise in relation both to the trade of this Kingdom and the connnerce with foreign parts, through the uncer- tainty of jurisdiction in the trial of maritime causes, do ordain, and ho it ordained hy the authority of Parliament, that the Court of Admiralty shall have cognizance and jurisdiction against the ship or vessel, with the tackle, apparel and furniture thereof; ii all causes which concern the x pairing, victualling and furnishing provisions tor the setting of such ships or vessels to sea : and in all cases of bottomry, and likewise in contracts made beyond the seas concerning sliipping or navigation, or damages happening thereon or arising at sea in any voyage ; and likewise in all cases of charter-parties, or ciintracls for freight, bills of lading, mariners' wages, or damages in goods laden on board ships, or other damages done by one shi)) or vessel to another, or by anchors or want of laying of buoys ; except, always, that the said Court of Admiralty shall not hold pleas or admit actions upon any bills of exchange or accounts betwixt mer- chant and merchant or their factors. " And be it ordained, that in all and every the matters aforesaid the said Admiralty Court shall and may proceed, and take recog- nizance in due form, and hear, examine, and finally end, decree, sentence and determine the same according to the laws and customs of the sea, and put the same decrees and sentences in execution, without any let, trouble or impeachment whatsoever, any law, statute or usage to the contrary heretofore made in any wise notwithstand- ing ; saving always and reserving to all and every person and persons that shall find or think themselves aggrieved by any sentence defini- tive, or decree having the force of a definitive sentence, or importing a damage not to be repaired by the definitive sentence given or interposed in the Court of Admiralty in all or any of the cases aforesaid, their right of aj)peal in such form as hath heretofore been used from such decrees or sentences in the said Court of Admiralty. "Provided always, and be it further ordained by the authority aforesaid, that from henceforth there shall be three judges always appointed of the said Court, to be nominated from time to time by liotli Houses of Parliament or such as they shall appoint; and that every of the judges of the said Court for the time being, that shall be present at the giving of any definitive sentence in said Court, ^liull at the same time or before such sentence given, openly in Court, deliver his reasons in law of such his sentence or of his opinion concerning the same ; and shall also openly in Court give Iviii IXTUODrCTlOX. answers and solutions (as far as he may) to such laws, customs, or other matters, as shall have been broufjht or alleged in Court on that part against whom such sentei.oe or opinion shall be given or declared respectively. "Provided also, tliat this ordinance shall continue for throe years and no longer." Although this ordinance at first was intended to last for three years, it was subsesequently made perpetual, but at the restoration 11 1()()() it was rep"ale(l. The use of the Lati'i language was alxil- ished in the Court by Cromwell, but the following entry in the Admiralty Assignation Boole, dated August 1st, 1()60, refers to the restoration of Charles II. to the throne, and of the Latin language to the Court: " Priiiio die nwn-tl.i Aiignsti Anno Duinlnl inUle-nnii) it se.vcenirsinw nuno ticUicct jubi/ceo non xolam lim/uir Latlna' J'elicikr restilaliv acd ct lUaHtr'txsiiiii pr'nu:ipi.-< C'nroli Ki'caiuli a jjopulo mio din per Proditoi'es dejmlni, naticmivandn Dei jirouidcnliu redaundi, tjueiii Dens optimnii Mux. diutissime sevvet incolinnem" (1). The Latin language continued from that time in use in the Court till 17oo, when it was abolished, and since then the English language has been used. From time immemorial there has been an Instance Court of AdmiraUy in Ireland. Since 17-^2 no prize commission has been given to the judge of that ('ourt. By the Act of Union it is pro- vided that there shall be an Instance C(Hirt of Admiralty for the "determination of causes civil and maritime only." The Admiralty jurisdiction in Scotland was always large and comprehensive. When Story, J,, delivered his judgment in DeLovio V. Boit, nearly eighty years ago, it had cognizance of " all com- plaints, contracts, otieiices, pleas, exchanges, assecurations, debts, counts, cliartei'-i)!irtics, covenants, and all other writings concerning: lading and unlading of shijjs, freights, hires, money lent upon casualties and Iiazard at sea, and all other businesses whatsover among sea-i'nrers done at sea, this side sea or beyond sea ; the cog- nition of wriis of appeal from other judges, and the causes and actions of reprisal, and letters of mark; and to take stipulations, cognoscions, and insinuations in the books of the Admiralty." And it is claimed by writers of authority that the Vice- Admiralty Courts of the American colonies prior to 1776 posses.sed and exercised very extensive Admiralty jurisdiction. This is evidenced by the widi' powers given to the different judges by their commissions. (1) Marsden's Ad. Cases, 243. As late as loo the Admiral's ] Hiilr< et aux enibouc TXTKoivrcTrox. li: As late a.s lor)4 there were no Adminilty judges in France ex(;ept the Afhuiral's lieutenants and other offioera appointed by him. Henry II. at that time organized Coiirt.s of Admiralty, and since 1717 they have been generally extended throughout the French colonics. ]>y some, Louis the Fourteenth may be thouglit deserv- ing of remembrance on account of his splendid military achieve- ments, but the greatest monument to his fame is his enlightened Ordonnance de la Marine, in which is defined the jurisdiction of the Courts of Admiralty in France The following, taken from Valin's Conimcntaire aur l' Ordoiinatifc de hi Marine da mola d'Aonf, l(i81, vol. 1, p. 6 (ed. 182^<), by V. Recane, will enable the reader to judge of this comprehensive and enlightened code: TITKE II. De la Coaii ktjcxce I)i;s Jugks dk i/Amiraute. 1. Les juges de ramiraute connaitront privativeme.it a tous luitres, et entre toutes personnes de quelipie ([iialite qu'elles soient, nit'iiie privilegiccs, francais et etrangers, tant en demaiidant ou'en defendant, de tout ce qui concerne la construction, les agres et apparaux, avitaillement et equipement, ventes et adjudications des viiisseaux. 2. Declarons de leur competence toutes actions (jui procedent de (•hurtes-j)arties, aHW'temens ou nolissemcns, connaissemens ou polices lie chargement, fret ou nolis, engagement ou loyer de matelots, et (les victuailles qui leur scroiit fournies pour leur noiirriture, par unlre du maitre, pendant requipement des vaisseaux, ensemble des polices d'assuraiices, obligjitions a la grosse aventure, ou a retour de voyage, et geiieralement de tous contrats concernant le commerce (le la mer, nonobstant toutes soumissions et privileges a co contiaires. 3. Connaitront aussi des prises faites en mer, des bris, naufrages et echouemens, du jet et de la contribution, des avaries et des dom- iiiages arrives aux vaisseaux et aux marchandises de leur charge- ment, ensemble des inventaires et delivraiuies des efiets delaisses ilaiis les vaisseaux de ceux qui meurent en mer. 4. Auront encore la connaissaiice des droits de conge, tiers, (lixieine, balises, ancrage et autres appartenant a I'amiral, ensemble tie ceux qui seront leves ou pretendus par les seigneurs ou autres piuticuliers voisins de la mer, sur les pecheries ou poissons, et sur les marchandises ou vaisseaux sortant des ports ou y entrant. •"). La connaissaiice de la peche qui se fait en n\fr, dans les etangs >ales et aux embouchures des rivieres, leur appartiendra ; comnie '1^ Ix iXTkoDlK'TloX, auHsi cellc (les pares ct pi'dicrii^s, de la i[iuilit»' dcs rets et fik-ts, ot navij^ablc , i-t de ceux que les lu'itiniens en reeevront, ensemble des clieniins destin<'*s pour le lialajie des vaisseaux venant de la nier, s'il n'y a reglemeiit, litre ou possession contraires. 7. Connaitront encore des doniniagcs t'aits aux (juais, digue.-, jetces, palissades et autres ouvrages t'aits contre la vicdence de la mer, et veilleront a ce (jue les ports et rad(s soient conserves dan.> lt!ur profondeur et nettet^-. 8. Feront la levee des corps noy<5s, et di^es^eront proces-verbal de I'etat des eaduvres troiiv<''.s en nier, sur les grcves ou dans les ports; nicniR de la submersion dos gens de mer /'taut a la couduitede leur> batinicns duns les rivieres navigables. 9. Assisteront aux montrew et revu ..- des habitant des paroissc> .suj(!ttes au g'let de la nier, et connaitront de tons difli'reus <|ui naitront a I'occ •'ion du guet ; coniiue aussi des debts Hit'chaiix, j)resi(l 'Its soumissions a I'iilais, et a notre 'It's cas ci-dessus, |mrlMis XIV. Jud, '••Jde at that time i'onij)lete code of attempted to be fri 'Xtont of the desig >liall not hesitate 1 'lie noblest works ;i'^''"iii]»]ished." Ill addition to t "f the Courts, the 'liction over all crii '"•'i.-^f.^ out of the b( ^rreat shij)s being o '•elow the bridges o '»iily cognizable by 'lave seen, without j '"^v. It was, howei 'I'f nation that any Jii'l.irment of his pee file >tatuie 2X Hen. """S iti'tl a new 'iiiic ted : " ^ • That all trea "•i<> hereafter to be ''!i'eii, river, creek, * -y : IXTliODlCTloX. xi 14. Pourromt ('vociiut dcs jugt-s iiitt'riiiir.s, k-a cnii.^es (|ui exmlc- nuit la vulciir do trois iiiillc livres. I()rs-(|ii'il> scnmt saisis dc la matit'''i-e par Tappt'l dc (|iu'linu' apixiintciiioiit oti iiitcrlocwtoirc (Ioium' (11 jircinir-re intaiice. 15. Faisoiis dif'feiiHes a tons pn'vnt.s, chiitclaiiis, vigui('i>, haillis, sc'iu'chiiux, |)r('sidiaux et aiiti't'« Ju^ret* onlinaircs, jugt's-coiiwuls, ct (Its souniissions mix gens tciiaiit les ro(|iu*tes de notre hotel et dii jialais, et a notre grand t'onf«eil, dc prendre aiieune connai>'san('i' (Icri cas ci-dessns, eirconstanees et ilt'pendanccs ; et a nos cours dc parl(!nient d'en connaitre en preinir-rc instance ; nicnie a tons ncgo- (ians, niariniers et antres, d'y proeeder pour rai. on de ce, a peine damende ari)itraire. The French Code of l(i81, from whioli the above is taken, was published nnder the auspices of Colbert, the great ndnistcr of Louis XIV. Judge Duer claims for it a higher place than any code at that time known. He says: (l) "It is probably the first complete code of maritime and commercial law that was ever attempted to be framed, and when we consider the originality and extent of the design, and the ability with which it is executed, we shall not hesitate to admit that it deserves to be ranked amoisg the noblest works that legislative genius and learning have yet iiccoMiplished." In addition to the jurisdiction of the instance and prize sides of the Courts, the Lord High Admiral exercised a criminal juris- 'liction over all crimes and offences committed on the sea, or on the coasts out of the body of any county, and of death or mayhem in great ships being or hovering in the main stream of great rivers lielow the bridges of the .same. The offence of piracy was formerly only cognizable by the Admiralty Courts which proceeded, as we have seen, without a jury, according to the procedure of the civil law. It was, however, felt to be inconsistent with the liberties of the nation that any man's life should be taken away except by the jii'Ignient of his peers or the common law of the land. As a result the >tatuie 2 in- <|iiir('(l, tried, heard, determined, mid jmlf^ed in sneli sliireji ami places ill tli(t realm as shall lie limited in the King's eoiiiniissioii or commissions, to he directed for the same in like t'orin and condition I's if any such olleiiee or oIK'nces had heen committed or done in or upon the land. "2. That such persons to whom smrli commission or eonimissions shall he directed, or four of them at least, shall have; full power and i'uthority to iiKjuire of such olli'iiees and every of them hy the oaths of twelve goo Itocn committed on Ixianl or by means of a forei}:n sliip, and tlie person wlio committtMl -iicli ollence may lie arrested, triecl, and |iiini>lied aceordinuly. Reference has already heen made to the ordinance passed in the time of the Coninioiiwealth to fix aiiide of a ship even at the reipiest of the majority interest, were ijuestions beyond the jurisdiction of the Court to settle. It could Compel a bond to be given to a dissentient jmrt owner for the safe return of the ship, l)ut in those cases the dissentient owner derived (1) per Johnson, J., in Ramsay v. Allegre, 12 Wheaton, p. 628. Ixiv I.\TU(HM'(TI()N. in» l»"iH'fit from tlic fniits of tlic voyiiuf, mnl j^lmrcd in no losses. Tims niiitlcr.'" continiKMl till near the cloyc of flic first liiilf of the |)it'st'iit ('(iitiiry. When Lord Stowcll brciinic jinlj^i-. tin- l)Usi- MfSM was so «lij,'lit tluit it is saiy the iiistan(;e side of the Court. The expanding cotiinnirce of the JOmpire, and the coiise- <|Uent growing intenfomniunication with all parts of the worM, intensitied that desire. It was important that a trihunal .should he availahle capahle of administering specily justice, and upon ('(piitahle principles. And according to liord Stowell, the Ad- miralty Court is " hound by its comnii.ssion and constitution to deti'rmino tli- cases sid)mitted to its cognizance upon ecpiitahli principles, and according to the rules of natural justice"; TIk JnlldiKt (1). This feeling found expression in the report of a select committee! of the House of ('ominous in ]H'.V.\, recommending an extension of the jurisdiction. That re])ort, however, fell far shurl of what has since been granted. Nothing was done, however, until 1iidnieiits were nnide as to appeals, takin)^ evidenci', enforeinj? the attendane(> of witnesse.s, tnukinir rules of Court, and ^rantinj; or refusing new trials. The legislature, how- ever, was careful to provide that the increased jurisdiction j^iven to the Admiralty should not in any way interfere with the exercise of concurrent jurisdicti»»n hy the Courts of Common Law and K<]uity in respect of the same subject nuitters. There were a few excep- tions, however, over which the Adnuralty continued to have exclu- sive jurisdiction. Power was j^iven the jud;,'e to make rules to improve the practice of the Court, and Dr. Lushin|,'ton, under that authority, framed the rules of hS;").'). Tuder these rules it was first reijuired to file preliminary acts in cases of collision. The same procedure has been continued by the ruh-s of IHoJ), and sulweijuent rules under the Judicature Acts. In l^S")!), the statute 22 tfe 2Ii Vii't. c. H, was pa.ssed, which j^ave permission to serj^eants, barristers, attorneys and solicitors to practice in the llij^h Court. The juris- diction of the High Court in England was still further enlarged by the Admiralty Act, 18()1, which, according to Dr. J.(UHiiington, in part at least restored its ancient jurisdiction. This latter statute conferred upon the High Court jurisdiction to entertain claims for building, etpiipping and repairing vessels ; for necessaries su|)plied ; for damage to cargo imported; for claims arising out of breach of charter parties and l)ills of lading; for ilunuige done by any ship ; to decide (piestions of ownership, poscs- sion, employment and earning of any vessel regi.st(Ted in England or Wales ; to settle all accounts between co-owners with power to sell the vessel or any share thereof; salvage of life or property; wages and disburse men t« of the master; wages of any seaman wliether earned under a special contract or not. In certain cases the High Court of Admiralty shall have the same powers over any ^ritish ship, or any share therein, as are conferred upon by the High jurt of Chancery in England under certain sections of the Merchant Shipping Act, 1854. The above enumeration end)races the principal subjects dealt with by the Admiralty Act of IMOl. The thirty- toiirth section nuikes j.rovision for certain procedure as to hearing iit'iir the institution of a cross cause in cases of collision, but under tli(! Judicature Act. "n England a defendant was permitted to set up any defence by way of (lounter claim, which formerly could have 6a I XVI IXTKODrCTTOX, Ih'cii set up 1)'/ u .TOSS iictioii. Tlio proct'odiii;.' I)y wuy of coiiiitor cliiirn cjiiiic in with tiic Judicatiiiv Acts. The (h^t'ciKhiiit, however, even yef iniiy, if .so dispo.seil, (leelino to counter chiini, iiwtiit tlie result of the action against him, and then institute his suit for (ianiajres. The enlargement of the juri.sdiction in Enghmd proved .so bene- ficial, that it wns deemed expedient to enlarge the juristliction of the Vice-Admiralty Courts. This was accom|)lishcd by the pas.sage of the V^ice-Admiralty Courts Act, 18(>i, and the amendment iluTeto of 18(57. The exa-uded juri.sdiction was practically in the .same direction, and over the same cla.s.ses of subjects, a.s in tlie High Court of Admiralty. There were, however, some imp-»rtant exceptions, and these very .seriou^-ly impaired the usefulness an' efficiency of the Vice-Admiralty Courts. They had no power to deal with charter parties or bills of lading; they had no authority to decide <|Ucsti<»ns of ownership or title to vessels; thoy were powerless to settle disputes between co-owners and adjust outstJiiiding accounts; liiey could not sell the ve.s.sel or any part of it and (listrii)Ute the proceeds as the circumstances and justice of the ca.se might warrant. Tliese were important omissions, and for years seriously le.s.sened i!ie value of these Courts. Their efficiency was still further impaired by an anti(|uate(l, cumbrous mode of pro- cedure The proceedings were by act on petition or by plea uxd proof. The former involved a statement of facts on the part of the promovent ; this statement was then delivered to the adverse [)roctor for his reply, who returned it to promovent's proctor for his rejoin- der. The pleailings on either side were supported by affidavit^, and when the at t was concluded it was signed by both proctors, brought into Court wit!i the affidavits and exhibits, and was then heard by the judge. Tiiis method of proceeding was considered a deviation from thv rcLMilar and strict practice of the Court, and wa.- only adopted by consent of both parties. Tlie action by plea and ju'oof was the more regular and customary mode of proceeding. The plaintiff filed ids libel ii'.id produced his witne.s.ses to prove its contents before the defendant was called upon to aiiswei-. All wit- np;?.ses were examined in privati' before the registrar or an examiner appointed by tlu> judge. The procf ,rs were not allowed to be p^'s- ent ill ihe examination of \;itne.s.ses. This procedure was borrowed from the civil law system. It was cumbrmis, inconvi-nient and uncertain, and yet it obtained in Vice-.Sdniiralty Courts till the rules of 18<';4 catue into operation. The«e rules were founded upon the Knylish rules then in force, and lliev etit'cled a verv great change for the practically con iiy the term; High Court of dated with the Court of Judici ture consists of having and ex( peal having ai Court of Jiistic( this High Coui which, at the cc of being exerci.s mon Pleas, Ex local Courts. A ent Courts are Court of Justice Division of the by being a.ssigne the amending A person commenc to the Probate, J have been entitlJ or in the Court f^ Court of AdmirJ vidcd by the Ac ill n.nk, salary jud;,'es of the Co of U38;} and ai practice of the ; vided that " wh^ rules, the presen in effect, means cases not provid In Canada t Admiralty Couri ment of 18(57 un legislation eidar maritime comme as large and con: Kugland. The procedure in fori TXTkohrc^TloN. Ixvii change for tho betUT in procoduro. The rnh-.s of 1884 have been practically continutd l>y the now l■ule^i of 1893. By the terms of the Supreme C'uirt of .Iiidicature Act, 1873, the High Court of Admiralty ol' England became united and consoli- dated with the other Courts named in the Act as one Supreme Court of Judicature in England. The Supreme Court of Judica- ture cou-sists of two permanent division.-;, thi' High Court of Justice having and exercising (,''iginal jurisdiction, and the Court of A])- peal having and exercising appellate jurisdiction. The High Court of Justice is constituted a Superior Court of Record, and in this High Court of Justice is vested generally all the jurisdiction which, at the commencement of the Act, was vested in or capable of being excrci.^ed by the Court of Chancery, (Queen's Hcnch, Com- mon Pleas, Exche(pier, Admiralty, Probate, Divorce, and some local Court*. All the jurisdictions formerly vested in the.se differ- ent Courts are now transferred to and vested in the said High Court of Justice. The English Admiralty has therefore become a Division of the High Court of Justice. Litigi tion is dispo.>jed of by being a.ssigned to its apj)ropriute Division, but it is provided by the amending Act of 187") thar, .ubject to the rules of Court, a person commencing any cause or matter shall not a.ssign the same to the Probate, Divorce, and Admiralty Divii^ion, unices he would have been entitled to conniience the same in the Court of Probate, or in the Court for Divorce or Matrimonial Causes, or in the High Court of Admiralty, if this Act had not pa.s.sed. It is also pro- vided by the Act of 187o that the Judges of the Admiralty Division in n.nk, salary and pension stand in tlu' same position as pusine jud'.^es of the Courts of Common Law. The Supreme Court Rules of 1883 and ameiulments at present govern the procedure and practice of the Admiralty Division. By Order 72, rule 2, it is pro- vided that " when !io other provision is made by the Acts or the.se rules, the present procedure and practice renuiin in force." This, in effect, means that the Admiralty Court Rules of 18^9 prevail in cases not provided for by the rules of I8M3. In Canada tlure was no enlargement of jurisdiction in the Vice- Admiralty Courts subse sanctioned is adduced, it ought surely to control the judgment nt' the Court." Another writer (7), quoted by Duer, says: "The ordinances of other countries are not, it is true, in force in Englaiitl, but they are of authority, at least, as expressing the ut.age of otlui <;ountriL's, upon a contract which is presumed to be governed l)v general rules that are understood to constitute a branch of public law." Commenting upon this statement, Duer (8) says : " It i- manifest that no real difference can exist in respect to their autho- rity between foreign ordinances and foreign judgments, and it wouM be unreasonable to suppose that Mr Marshall meant to f)e otlur- wise under.stootl. It would be absurd to admit the authority of a (1) The Excrlsior, L. K. 2 A. i^: 1-:. (4) Mn-xn/ Dorks and Harbor Ili^r 2G8. V. Turner ( l.S'Jo), A. C. 4(18. (2) The Clara Killaw, I.. K. .S A. & (5) L. K. 3 A. . l'^. (7) 1 .Marsliall, p. 20. (8) at p. 7. rNTKODlKTroX. Ixxi law, and deny that t)t' it*i jiKliciul interpictiitioii l)y the trihuiuils of t lie country in whicli it prevaii.s, or t > aftirni that cvich'ncc <»f'a u.-a^o is not as clearly to ho deduceil from tiic one as the other. The (irdinanee and tiie decision stand on the same ^M'ound. Hoth are evidence of a law : In the one ease enacted, in the other declari'd ; and in both (uises, the existence of a nsaj^e in correspondence with a law, may he ])resunied. Neither is in force. Hoth are ol" anthority. Neither claims onr implicit snbmission. Both, when they cunviiK'c the reason, oblige the conscience. Valciil niiloiic, tion Jurr." Sir liobert Phillimore, in his learned work on International Law (1), says that the High Court o*' Adnnralty and the Privy Council '• were careful during the existence of the old law, and before the (.•tablishment of the present International Rules, never to apply to a foreign vessel the rides of navigation pres<'ribed by statute for British vessels. In all cases of collision upon tlu' high sea or in foreign waters, between a foreign and British vessel, or between two foreign vessels, the wrong-doer, whether he were foreign or English subject, was ascertained by a reference to the old rule of the sea, founded on the principles of general maritime law, and not to the rule prescribed by the English statute. Ca.-es of collision, like cases of salvage, are considered as belonging to the./'/w (jentiamy This distinguished author, sitting as Judge (tf the High C/'ourt of Admiralty in Tlw Pair'm (2), says: " I have been much pressed by counsel for the plaintiH's to pronounce that the decision of Lloyd v. G'/n7>«rHs not binding on the Admiralty Court, and also that the judgment errs in ascribing to the Admiralty Court the doctrine that the general maritime law is not an universal maritime law, binding upon all nations in time of peace, but a law which is to lie derived from the practice and di'cisions of English tribunals. It' it were nece.s.-ii(l e.l. (VJ."). r.'.j L. U.:\ A.72. (:i) L. K. 1 q. B. llo. TXTRnnrcTToX. Ixxiii Court, said : " We can uiMUM-staiid this term in the sense of the ;;onoral maritime law as administered in tlio Enpflish Courts, that l)ein^' in truth nothiiif,' more tlian English la'.v, thouj^h dealt out in somewhat difi'erent measures in the Common Law and Chaueery Courts, and in the peculiar jurisdi.'tion of the Admiralty; but as .0 any other general nuiritime law hy which we oUirht to adjudicate upon the rights of a subject of a coijiitry which, by the hypothesis, does not rocognize its alle;^ed rule. We were not informed what iiiihere the contract was made. It may be considered now as settled law that in the absentie of any express indication of intention as between the parties to a con- tract of affreightment, there is a strong presumption in favor of the law of the ship's flag. This is the doctrine laid down in TJoi/d v. (jiiibert. In this case the plaintiff, a British subject, at a Danish \Vest liidia port, chartered a French ship to carry a cargo from Iliiyti to Havre, London or Liverpool. The vessel sailed with the largo for Liverpool, but on the voyage sustained damage, and had to put into Fayal, a Portugese port, for repairs. There the master properly |)ut a bottomry bond on ship, freight and cargo. After the arrival of the ship at IJvcrp( ol the holder of the bond proceeded iiLSiinst the ship, freight and cargo in tlie Admiralty. The ship and tVtight were insufficient to satisfy the bond, and the deficiem.'y fell I'll the plaintiff, as owner of tiie cargo, and he sought indemnity ui,Min.st he French shipowners. The defendants, the shi|)Owiiers, sriive up ship mid freight to tiie shipper, and by the law of France ^uch abandonment relieved the shipowners from further liabil'ty. ^iich abandonment would not, however, have absolved from liability 11 British shipowner. The Court held that the parties in making (1) Sttiidi's Mer. L.'ov (10 (■('.), rutniiliictioTi Ixv. Ixxiv IXTlJODrCTIOX. the charter must have iiitendod to he goveriiod hy the law of the flag, and decided in favor of the French shipowners. Another principle properly (le(hice), 3 Moo. P. L'. 272; The. Knnuik {\mi), L. U. 2 P. C oOo; The ExfireM (1S72), L. R. 3 .\.A E. o97 ; Cliiii-lervd MrmutliU /Jrn.Jt. etc. v. Netherbtrnh (1883), 10 C^. H. D. ')21 : In re *(.w (18S7), IS (l H. I), p. (iOt); In re MUwuri S. S. Co. (ISS!)), 42 Cli. D. p. 33(;; Pope v. yiderxnu, 3 Story 4()5; The Seluli, 4 Sawyer 40, The Seol- land, 105 IT. S. 24; The Julia lilnke, 107 V. S. 41S; EUix v. McIIenr,/, L. H. C. ('. P. 238 ; The M Moxam, 1 P. D. 51. (:i| Law ol' SliippinR, Preface, 4 eil., 18i)2. INTUODrcTloX. XXV riili'f lulnpted to the altered circumstances of nca navigation, uiiIcsh tlu'V agree in like manner to adopt a common system of judicature by wluch these rules may be enforced, and the disregard of them visit' ' witli penalties" (! ). (1^ 1 (>e Jurisdiction of tue Silver Oar of the Adiiinilty, by TwisH, 4r the river. T N., iiiiglit hiive !i giive lur a diiigi result struck the //,/,/:_That the.S. w lieM that when t port helm may hi iieiieviiifc siuji oo not to hiame, inn -tarlxiani. A VI ->ei may take a ci IS reascinalile j;rn safety or more se Tlu'Sf two cas ti"iii the Judirnit' '■>. I J. \\ t hnni'i'. '•'"itt'iidcd tlint tl) llErOKTS OF CASES IN TIIK V IC E-A D^ 1 1 R A i;r Y COU RT OK NEW BKUNSWICK. Till-: SOTLAXiiKS— ri:\T.M.\N; TIIK NKI'TIXK— Hawkins. iH7y Aug. 11. [Jdlilliti/ — Li>ilil.<. The |iassi'n>;ir stiiuiuT S., sailing; up tlu' rivur St. Joliii, nut the steaiii-tu); N. rciniing (liiwn, lU'ur Akt-rlry's Point, wluTt- tlu' riviT is aliout liall' a mili- widf. Tlu" S. was lU'ar tlif \viv.ti'ii' slmit', wliicli was on lii-r poit siilu noinj; up; the N. about one hundred and titty yards from the same side if tlie river. Tiie S., hy keeping; her course when she tirst sij^hted the X., iniglit iiave avoiih-d tiie coiiision, hut instead ported iier liehn, which gave lur :i diagonal course to starhoard towards the east side, and as a residt struck the N. on the starhoanl ipiarter, and sank her. //•/(/: — That the S. was to hlanie, and liahle t'or the damages sustained ; also held that when two vessels arc meeting end on, or nt-arly so, tiie nde to port helm may he departed from, where there are reasonahle grounds I'or lielieving such course is necessary for safety, antl conseiiucntly the N*. was not to hiame, iunncdiati'ly hel'ore the collision, lor putting her helm to starhoard. A ve-sel may take a course opposed to that 'ndicated hy the nde when there is reasonahle ground for lielieving such procei'ding lUM'cssary I'or her safety or more secure navigation. Tlu'SC two t'USOS Wl'l'l' tf'u'tl oil till' Sillllt' I'v'uU'lici', illlll \\r\v iifiTMoil toovtlicr. TIk' tiifts and I'vitk'iico fully ii[i[i(.'itr tV.iiii the .iudiriiK'Ht o*" till' li'iinii'd jiidu^o. h'. L. U'(///(<<;T, tor till' |iroiiiovi'iit> iio-aiiist till' Xi'iitutu', '■■'nti'iidi'd that the X'i'['tiiin.' was wroPL.Ml) lifcaiisi' she had 2 \ iCK-Ah.MlkAI/l'N' KKI'oUTS • "<"•' 111)1 till' |iin|iir lii:lit> f\|M»snl wicdi'diiii:- In l;i\\ : cJ) llic H : (olwlirli ^lic siiflltc' Nkpti'ni:. tlic Sniiliiii'^i's it wiis lii-r (liiiv to |>iif lu'i' licliii to port iiml |iiis> till SollhilluTS oil tlic port si(l»'. Ilrritt'tl '/'A. C'liiih/liiii J<7 .,/ iHds ( I ): Alil'ul/ i„i Sli>'i>ititii/{-J,): Tin Frl>,i,ls{:\)\ Thr ./i.. ('.. tor |ii'oiiiovfiil.- iiLiniii-l tlif Soulini;/!'-, (■oiit('iitl('(l tln' .\\'|itiiin' liihl |iro|)('i' liii'lits. ii |projK'f Wiitth. iiiitl \v;is |iid|M'rlv ii:i\ii!;iit('(l. IJrforc tlif riijitiiiii of tin Soiiliiiiti'i's took any |ir»'cimtioiis to ascertain the jtositioiis ot the Xfssi'l- he |ioi'trtl jiis licllii : it" lit' liail Hot done >o tlif \('sscj> woiijtl liavf ii'oiif tK'iir. Fi^ln r'.^ l)i itiul tin- stfaiii-tiii:' Xcptuiu' t)ii til*' ri\i'r Saint .lolm. 'I'lu- <.-olii>ioii tool< plair on tin.' IHli of Novi'nil)c'r, 1m77. at niu'lit. \vlicri'l»y tin- Xi-jitiiiif was so iiiut'li (laniaii'iMl that slir shortly al'ti-rwards sniik. The twt) suit.- \vi'rt.' lu'ard toi^i'tlu-r on thf same t'siiK-iH-i' ami aruMinu'iits. Tlu' first material i|iU'stion to Ik' dftfrniiiu'd in tlu' v\\- (U'lite is. what were tlu- rc'spcctiNc jiositions t)t' iIk'sc vt'ssel- wlu'ii they first siu'htfd cat'h otlu'i-'.' < >n this point th' sworn w. ahmit AkerK'y'- or a little alMt\-e it. It appeai'eil tt> nie tt> l>e close ill Point. I >aw no t)tlier liu'lit at that time to the >iiort 1 saiil to the man at the wheel. • I tliii * * ik It IS a scJiooiK' (1) pji. Ki;!, Ifit. :!1 \'ic. f. ")S. (•_M ji. tiO"). (.'!) 1 W. Hoh. 4s.\ (A) L. K. t 1'. C. 1. (.">) 4 P. I). ;!3. (Ii) Montreal (i,i:rll<\ l\v. 187 now ic|i()rtt.Ml ill C'nuk. 13:2. (7) p. Mii'.t. (Si ]•_' \V. n. \o]\. (0) ;• I.. T. N. S. 3;it). (10) L. K. 3 I'. C. 44. (11. I.. II. 4 I'. ( ■..■.! ii. (1-J' I,, l;, -J P, C. 24.'). liii'lil.' I sal, ■■^liore, and lill apjieareij • lo.sepi, I{,.|, lano-es at the lh|/./y"s I',,j,,t I'l'ldy's 11.,!,., ill iIm' midtjli. , 'i"ii 'o a while "Illy saw a whi ill that dircctii i:i\«' her a uroo •i'""if n 'piarter = i''"\f iJeihJy's l"l" 111*' liioiitli laiio'es' port sjd 'li<'n kept the S "f the river, tillle. .\r th,. , fhiiii halfway a Alhert ('ran- "•'.^'■*: ■• I \\a> i il'Kl Wi'llt llj) ,, I saw a steam '"okeil Id >,.,. w •^hore> cdiild I -iiiliiio- ,,|, fi,,, I "11 Ihl/.xy I'oi,,, ;ihi.iit oiie-tiiird ■"i'l'\ Mild ahoiK 'ii'' nioiirh of t Akcrley"> j',,i,it ''hol|,;|< \^ Si 'ii:m. on Jdijird '"'lisioil tile S.iii 'Im' ri\-er from tj 'ii '■oiitlict wit! "ii'l William A. H ___^. ( K Ni:\V lllMN'sWKK, « I'mlit." I sjiitl ' I'ort vmii' wliiM-l: uf will Ucr|. nin- own 1"»'9 sliorc, iiii|Milx('"i Soi i worM. -I) iis to li'ixi' litT ;i ciiiit tn ilic rii^imi ~lii "ri'. ii iH 1 tlic liu'lit Nn'Ti-Nr. .till ii|i|M'iiiT(l til l»c ui'itiiiu: iMiirrr l<» II-. .los('|(li Ht'lvi'ii. ii |iiis-iciiii"»'r. wlio wii>i >tf('i'iii«j: tin- Snii- iiiint's lit tlic time ot" tlic coHisiuii. sn vs : ••Alter |iii>>iii!.'' r.ii//.\'s INiiiit. roriiicrlv Scovil's. we flllllf illxtllt n|i]iiisit(' r.cdily's Mole. (If ii little illiOVC it. We were. il< I lielieVe. ill llie liiitjdle til' the river wliell tlu' eil|itilill eiljleij niV iltteti- lioii t(i ii white liiiJit ii|i|tiifeiitly iihu\c Akefh'v'"! iNijiit. I only saw- ;i white liiiht. I s;iw no other liy'lit iit that time ill that direetioii. 'I'lie eaptaiii said, ' ^'oii may port, and n'ive her a i.':ood herth." I took the li^hf at that time to he alxtiit a i|iiarter olii mile distant. * ' \\'lien We wvvv aiinve Meddy's Hole we Were steeritii.^ ahoiit all i-ast eolil'Sf I'or the lliniltll of the .Ii-mse^. We Would shoW the Soil- laiiiivs' jiort si(U> to a steamer eominu' down the rivi-r. We then |;iys: •• I was in the eahin. and telt a shock. I ran out at't. iiiid Went u|i on the top teaiiier aloiiii'sidi' on the starhoaril side. I then looked to -ee where We Were. 'I'lie liili'll' was dark, lillt the shores could he |plaiiily si'cii. If was a \vv\ fair niu'ht tor sailiiiLf oil fherivei': it was not misty. I could seethe linht on l)U/,/y I'oiiit on oiir starl>oard liow. I thoii^-jit we were alMtiit oiie-thii'il of the hreadth of the river fnuii the east side, and ahoul oiie-fourth of a mile. a> 1 su|i|io>ed, from the inoiith ol' the -lemseo- In-low. ami a short distance htdow Al .crley"> I'oillt (Ml t • opposite sidi' lioni: Simmon a passemz'er. and l^-talu ooK- iire- iiiaii. on hoard the Soii'inLi'es. say that at the time ot' the loljision the Soiilanuvs was alioiit one-third of" the width of" ilic I'ixcr from the eastern liaiik. In conflict with thi> e\ ideiice. Henry Hawkins, the captain, iiii'l William .\. Kiulay. the pilot, of the Xeptuiie. -ay that VirivADMIKALTV KKroliTc^ isTn tlu'V krjit tlirir rnursi' (ni tin- sti'.rlmai'd side ot' tlu' river; Sori.A.Nt.Ks. ''"I' "" tiiriiiiiir rdiiiitl Akerli-y's roiiit tliev snw a i^rct'ii NKi'TrsK. liirht iiltoiit tliici' |Miiiits oil tlifir starlxianl Ixiw.aiid a white liiflit, a|i|>areiitly oil a pole in tlie sti'rii of tlie vessel earrviiiir the liirht; that tVoiii the itositioii of tlu-se two liirhts the vosst ' iiiiist have hi'eii stei-riiiir t<»i' Akerley's Toiiit ; that ti.e ea|itaiM Itjew his whistle tlu' liioiiieiit these liuhts heeaine visible, and hlew a second time, hut reeei\-ed no answer: that thev did not alter their eonrse, hiit vuscA the eiiuiiie; that the vessel seemed to |iiit her helm to |Mirt. as she im- iiiediatelv, in a miiuiti' or a minuti- and a half after, i-iin into the Xe|itune on fhe starhoard i|iiarter: that had she Ke jit on her eon rse, which she v.as rnnniiiij: when first -iiihti'd. she must ha\e passt'd the Xeptiine on th" starltoard >id'', proliahly at a distance ot" two hundred feet ; that at the time of the collision the Xeptiine had trot round Aker- ley's j'oint. and had inst passed a wharf there tVom which lav If loaded. Tn addition to the statements of tlu-se witne i>e; wi' lia\t' the material fact of tlu' lindintr of the sunken steamer Xe|p- tiiiK' to assist Its in ast-ertaininir the triU' j»ositions ot' tlu' vess' it the tiiiH' of the collision. Tlu' river at the jilace where tlu' steamers nu-t is ahoiit lalt a tiiili-, or eiij-lit hniairetl and eiu'htv xards. with Th Sonl.'.HiCes assert that she was then ahoiit one-third of the width ot' the river, or two hundred and ninety-five yards. from the eastern shore, towards which slii' was steeriiiir. T!u' helmsman ot" the Sotilanir<^'s say^ : *• When the Xep- tiiiK' irt't loose from ns she rnhhed aloiiii' our starhoard side ern. wi'iit round our port i|iiarter ahoiit tw^ towar(ls the st hiimlred t'eet. and sank." Tin- passciiLi'er, Thos. 1,. Simmon. ^ays : "I saw the Xeptmu' driftinu' i\ty yards from tlu' ea>tern shore, whereas she \\ii> t'ound aliout >e\-en hiiinlreil and thirty yac'- from ilie eii>t- ern >liore. iiiid ahout one hiiiidri'(l and till, yards from thf Wi'st liiiiik "I' the i'i\tr. or ahoiit three hmnlrcd and >e\eiiiv \UH\> t(. the The pilot ,,!' 1 ■•"Wiino- M.iind --In' was iinde on hoard the ^\as struck. "■JK'rc the c,,| <'ii|.taiii II; ahout a iiiiniit into the Xejif "cut dow ,1 ;,| nccniTcd." dames Iveiili >;iys •• ||(. foil,,, 'lie sJK.re of t Akerley'> |'oi,| I*. liyiich. oi '" sec ahout r imndred and fi ;dtout ahreasr o The tindiiii'- of the river i 't'stinioiiy of (' •'^•■ptinie was : ''■oiii the west ''lose oil lioar* :" 'he sinhlfiii fli" position a 'liey first siii'htt l"'«'ponderance <"nne ill sju-lif , die of f|„. ,.j^., Akerley's Toi 'li;it the S.mlai iiiid ajiparently \v;is src(.ri,,o- ,1 •""""idaim-cs aseeii "••'d the Soiilaiii ' 'i^t until she hi nt (►K XKW I'.KCNSWICK. HTl^ Viirds fii tllc Wf-t (if tlir >\Ht\ illdjciit^^'d 1>V tlir-.' W lt!lr<>i-*. 1 TIk' piliit (»t" the Xi'i'tniu' Mi_v>: •• Tlic \('s-.'l> >tiifk t;i>t ;iii(l Sori.ASdK^i. swmii;" louiid tou'i'llicr. Tin' Xc|itiiiif iiiiinfdi;itc!\ sank: Nkitink. si H' was UMt liT watci- w lu'ii 1 |uit iiiv liiiit (HI tin- I'an tt> t:"'t HI IxMi'd tilt' otlii'T \<'sscl : >lu' went down alii.nt wiuTi- s1il> as struck. I don't think >Ik' drilU'd liait" liri' K-iiii'th tV(>iii w wlici'f tilt' cnllisii.n ocfiiri't'd Captain Hawkins >a_vs : •• Tlu' \t'>-l:'»'|1i('1- \\'V aliont a minntr or a niiniitc and a half, n.itil the watci' ran into the .\'('|itiiiif. ami slu' sctili'd down hy the stern: <1m' went (low ii alnio-t at oiici' at the iilacc whrrc the (KJIi-ioii occiirrcd sa dailies Ivi'iiiu'dy. who was ciiiiiloycd to raise the Ne|itiiiie, ys ••he t'ound the Xejitune ahoitt thi'ee hillidl'ed feet friMii the shol'i' (»f the Western hank ot' the ri\-er. a little hejow Akerley's Toinf. and a little helow the I'anu'e of the wiiarf" r. liyiiih. oiie of the owners ot' the Xejitune w ho went \\\' to >ee ahoiit raisjiiii' her, says ••she wa> lyiiii:" ahout one liuiidrecl and fifty yards tVoni the western hank of the I'iver, ahout ahreast ot' the wharf, a little helow .Vkerley's i'oint." The tindillii' of the Xel>tline so (•|o^e to the western hank of the river is, to my miml. stronu'ly eoi-roliorative ot' the testimony of Captaiii Hawkins and his witnes-e- — that the Xeptiiiie was struck on her starhoard ijuartei' hy a >leame!' I'roiii the west side erossiiit«iok le hositioii and course o if the XelitUlle t rolu the liiotne'it tliey first sie-hted her. 1 therefoi'e rcLi'aiMl it as proNed, hy a |il'e|»oude|'ailce of e\idence. tliat wlieli the steamers tir-t ("line in siii-|it of' each other the Xeiitniie w a< near the mid- dle of the riv( r. on the starlioai'd >ide, haviui:' rounded AkerK'v's Toiiit, which is on the ea^t ( r riiiht hank, and that till' S(Milanu'es was iiisli(U'e nearer 'he western hank. I appari'iitiy lu'adiiii;' for Aki-rh-y's i'oint. The Xe|i!une WHS stoeriiiii" down the I'ivei in her iirojier i»osition, the >^"ulaiiu"es aseeiidiii!.'' on file west sith- show ill!.:" :i lii'c'-n li.u'lit. Ihid the Soulanu'es ke|it la-r course straie-ht u|i the ri\er, at 1 iist until sill' had [lassed the Xejitune. or had she sf(.|,j„.,| :iiii \'i(M:-Ai)MiuAi/rv uKPoiriN l*^"!' until till' Xt'ii'iiiir linil ;is<» loiiiLi" tin- Soiilaiiiri's siid- M . sJiTriiiii' i>'T(»ss tin.' rivt'i" (li;iii'i»iiiiliv NkI'TINI:. tlt'lilv iiitrlrd ii» <• ckui f()\\;iili ami lia/.ardoii- attfiii|>i. ;;;.;! wliici rcsiiitt'd, in niv (»|iiniun. in tlu- tlaniaii'c to til.' Xc|i)iiin.. Pile SonlaniTi's iK-inu' close inshopf on tin- \vi'>ti'i'n sidi' nt' tlu' i'i\ri', and mtrndini; to \tU\ was lioinid to take all iiropri' |'i\'caiitioiis, an ti» move with Li'iH-at circiinisiicctioii to avoid cncoiintt'i'iiiir otluT vrssL'ls wliifli iniiclit In- tlu'ii i'oundin_L!; Akei'lcvV I'oint. it is cliaru'fd au'ainst th',' Xi'|itiinf that she dicei'tain tVoni it^ arni whether the vessel was ni motion or at anchor, and it* this conhl have heen done, and till' omi>sion coiitriiuited to the collision, ijii' Soulaiii^os would he at fault. Cajitain Peatman says: "I saw a hriirht whiti' liii'lit on our jiort how ahout Akerley's I'oint, or a little al»o\e it. It aiijieared to nu' to \k- close into the sliore. 1 >aw no other liu'hl at that time; the liu'iits (tt" an aii|troacli- inii' vi'ssel c(ndd Iti- easily si'en. Wlu'U 1 tirst saw the liu'lit •t a|'|ieared at a distance of nearly a i|Uarti'r of a mile. I said to the man at the wheel, 'There must havi' heen a heavy wind on the rixi-r to-day, there are so many vessels at anchor; there is another anchor liii'ht, meaniiiii" the lii^lit we will t- * <• ot' a Vessel at anchor." I said, ' Port your wheel keep our own shore, and u'ivi' lu-r a u'ood hertli." Within half a minute I heard an alarm whistle from a steamer, which, I think, was then one hundred and tift\ \ards troni n>. Tl le Soulany;«.'s had, thei'i'tori", run in a lirectitui across the I'lver tor some ( list; nice wi tll(»Ut ovcrinii: that the liifht was that ot a vessel in motion, ain was within one humlred ami tit'tv vari U of the Xej.t WW hct'ore tlu'V dir aiiiiroat-hinu" tl r-ooiier'r' Tlu' flic wheel, say? a::ain. It was >ides ot' the rive the steersman ( the aitproachin c\idence, that rt'd. t»sition.- lyiuii' at ( )romo o'rliick on that tliciu, and jMit rln' poi't how, ; white liii'lit at 'vatcr. These kept in piisitioi (Finlay) says : •• ;:i'ccn on the st tit'teeu feet t'roli the Xi'ptune, sii the starhoard li<» mast-head liii'ht. three miiniti's o forward ti» tlu' w a^kc(l ine it' tlu hnrnini:' tip-top, adtlition to this, lia>>i'ii<:\'r that n at anchor aho\'e jtcaiii vessel pass little screw hoats Wliei! the steani' •an"( say at what led. anotlu-r «rrc what -part of tlu" man states that ; at the time ot' tlu OF Ni:\v r.iirxswicK. Wll 'Ail iK't^re tlu'V (lix'owriMl tliat tlir liirlit was that ot" a sti-aim-r '>**"'>' uplproarliiiiii- tln'iii. Why was not th»' discoxciw iikkU' S(Hi.A\(itx -iioiit'i'? The niulit was not (hirU. lU'lyi-a, the man at Nii'unk. rhi' wht't'K says: "It had \h\-\\ dark, hnt hriuhtcnt'd n|) ;i;:ain. It was not thifk weather, ami they fonld see lioth -ides of tlu' i-ivei' jihiinly.'" Althoiiirh ('aptain Teat man and tlie steei'snnin (lU'lyea) say they oidy saw a white liii-ht on the ai>i>roaehinir vessel, 1 hav no donltl, on the whole e\idenee, that the -teanief Xi'ptnne had at that time her led. liTeeii and white liu'lits showinii* etih'it'ntly in tlu'ir liidjier positions. Captain I lawkins says : '-Whilst w*- were Iviiiii'at ()ronioet(v (whieh ]>laee the Nt'ptnne let't ahont ten ./.•lock on that exH-niiii:") I to(d< all the liirhts down, trimme(l them, and put them np au'ain. Tlieri- was ;i red liifht on the port how, a li'reen liu'lit on the starlioard how, and a ite liu"ht at the nnist-head, aho\it tilteen teet from the ter. 'i'hese lights weri' in the usual positions, and were kept in position until the collision oeenrred." The pilot (Finlay) says: ■• We had a red liu'lit on the jiort how and ;i i;'reeti on the stai'hoard how, and a white liu'lit on a pole tit'tei'n teet tVom the deek." .lami's Fox, the eniriiieer ot' the Neptune, says: •• We carried three li^-jits — ifreeii on the starhoartati's that as the Xeptntie was passinu- the SouIanir»'s .11 the time ot"tho colli>ion lie saw her irri'eii lii^-lit, which he H VrcivADMIKAI/rV liKi'oKTS 187!» cnlltMl a dim iri'ct-ii li^-lit -. alsci in ihr liln-l rilfl>erl V e\|i(ised. and tliat hail a sti'iet aixl earet'ul watch heeii kept on hoarcl the Sunhiiii:'!- thesi- liii;lits eouM ha\(' heen seen hettH'e thi'l'e was ai:s (hmii'er of collision. It is also contendeil that the .\'e]it!ine did not ohser\e the I'nh' |>re.ve,'ilK'il in the dominion Act. which difeet> that when two Vessels nndei' steam are meetin;.i- "end on," or nearlv "eml on."" so as to involve risk of eolli>ion. the helin- of hoth shall he [lilt to port, so that i-aeh niav pass on th<' 1' irt side ot' the other. 'I'his ride is 1>\- no means inile.xihh Like all other i^em-ral rules, it must yield to the in'cosity and I'l'ason ot' particular eases. A vessi-l may take a c(»ur~i opposed to that indicatecj hy the rule, whim tlu-re is n-asoii- ahle u'l'ouiid foi" helievin^' such proceedinu' necessary for hei' satety oi' more securi' navigation. Tin Siri/:, rl'iinl (}). T\\\- iide is applicahle only when tlu' vessels, hy contimniiii- their I'espective courses, are likely to coini' into collision, and Avlu'U. iiy portinii' their helm.-, the collision may he avoideij. I>ut the rule is not applicalile wla-ri' eithi'r vessel, hy uii- skilful manau"*'iiu'nt, is so near the shore that hy portiiii: lie!" helm there Would he dauii'er ot' collision. In such ease till' Vessel in her riii'ht course is justitied. in spite ot thai rule, in iiuttinu" her helm to starhoard. (icmruJ Slnaii Xmi- (/i/fiifH ( '). \' /'iill'i'H {'2). In this case the Neiituiie was in her proper position. She had a riu'ht to continue her course, and the Soulanu'es. h\ <-rossiiin" the i-oiirse of the Xejitune, did so at her pei'il. J lad the Nep'uiie ported her helm when she first si<;-hted the S()ulan,L:*'s, it is possihje that the vessels miii'lit ha\c ifone clear of each other: hut it ajijiears to me that thei'e was sutHcient room for them to jia.-s clear without her doin:: so, r>ut what reastui had the Neptune to presume that the distance of' a l;iii!.''e> appeare lor Akerh-y's I cliaiin'inu" of t Viould. in ali with the Sol. la -lie had no I'ea- woiild ai'ise. I no det'elice to ; Vessel miiiht, h; ::ation, ha\e a\ will tiill upon t propel- foi' her i it has heel) i was at limit in s <'ollision. I do attached to him iiiomeiit iui'vita was to diminisji -My opinion o liiused hy the di and this decrei' l The Court tin. tile Soulauii'i's a tains that of th^ lamres, also with < hi the <|Uesti( <'o.->ts and expeiis Saint John, and I'atrick liynch. >'1.7s4.(l7. witii i l.s7,s, .Sm; in all, Kt'sjiondeiits. ma >ou laniros would so suddeiilx have ehan^'ed her e(tui'. to\vard^ tiie eastwanl 'r \\'lien first siii'htrd at the slioi't A\ '^ y,'. lv-t<. 48' (-') 4 Meo, V. C. 314. (>K \i:w r.kcxswrcK. 9 di^tiiih't' ct' ;i (|Uiirtcr ot ;i mile tVniii f:icli othrr, fiir Sou- l^"i* l;iiiiri.'> iipiifui-ril i() 1)1' riiiiiiiiiii- strjiiii'lit ni- tlu- i'i\cr. stcfi'iiiu" >,,ri,\M,i.:s. \ny Alility. lia\t' lu'oiiirlit licf iiit(» fonta-'t itli tin- Sci.laiiii't's. wliilst, Iiy iMirsuiiiu' lii-r ilii'cM-t (•(iiii->r, .-111 had no ivasoii to aiii>rchi'inl that any (hnitrrr nr ditHciilty wuiiid arisf. It has hfcii hi-hl in casrs ot" collision that it i~ U'> (K'ti'iici' to a vessel clearly in the wronij that the othef Vessel miii'ht. liy dt'iiartinu' tVoni the ofdinary v[\\r> <>{' navi- L:ation, lia\e avoided the collision: hnt the whole daniai:'e will tall npoii the vessel wlTu-li i\'<(\ not adoot the nieasui'i-- |iro|ier |oi' her in tin- |iaftieular eircninstanee. 7'A( '/;.■>/ (1). It has heen also ai'ii'ued that the master of the Xeiitiine was at tiiult in starhoardinii' his hidin at the moment ot' the llision. 1 do not, h(»\vever. consider that any im|mtati(»ii attached to him on that account, as tlu' collision was at that iiioim'iit iiu'vitahle, and his adoptinii' the measnre he diil was to diminish, as far as possihle, the impendinu' e\il. My ojiinion on tlu' wiiole case is that the collision wa- caused l»y the det'anlt and mismanau'enu-nt of the Soiiianires, and this decree must he against her. Tln' Coui't therefore dismisses tin- acticm of the owners of the Soulaiiii'i's aii'ainst tiu' Xi'|ttnne, with costs, and main- tains that of tlie owners of the Xe|itnne auainst the Son- laniTi's, also with costs. < hi the ((nestion of damaii'cs. I tind the an'ii'reii'ate of tlu c()>ts and I'Xiieiises of raisinn- tin- Xeiituiie. hrini:in^1.7s4.(>7. with inti-rest t'rom date ot' deposition, An<:Mist lit, 1>^7S, -ST'T in all, which I assess at that amount aii'ainst tlii' lli'S|>omh'nts, maUiiiii' in the whoh ."Lxitl.t!". 1 1) .') Notes of C:i-e-, 27H s. ( . 11 Jur. '.>',»^. 1(1 VKH-AD.MIIiALTV liKl'oUTS IHSO Sfi.l. -Si. ( ollii Till-: (ii:.\("K~-XMi;Tiii:i I- S'lifliii/ Hii/i.'^ — I>' piirliirr friiiii — lAuhUihl — Imrilnlilr AcriiUnt — Two vi"-- iN, the li. ;nul \\\v (I., wcio ■^iiilint.' iiji tin- river tVoiii St. .loliii to Fn'ilcrictoii. At I'dlcy'-. Kriicli, »u imIIicI. iic;ir l-'ndcrirt.in, wlirrc tlir river riiii-i al'iiiit imrtli-west and ^nutli-ea-t, and i- almiit llirti' iiiitidied yard^ wide, ilie It. lu'in;,'- on the starlMiar-tarliuard taek. tlie (i, on tlie |iort -^ide ot" tiie rivei-, and on her port taik, the ve»els wi're |ia>>-in;; each other port -^idc to port »idi'. W'lieti the li'' ;irri\t'd iiriir Miildlr Isliind, or I'rrli'x's |{i';i(h. hiiik;' then tindi'r full ail, ami on tlic starhoaril sidi- ot' thr niid >t till' rivi'r till' fonrsi' of till' rivrr at that ]il;iic hi'ino; ahoiit north-wi'st and sontli-i'iist, tin- Ivanu'cr hriiio- on hi-r st:irho;ird tack and sti'ri'iiiLi' a coiirsi' of \\(.'st liv north wlii'ii tlii'V >iii'hti'd tin- (n-acv on lii'r jiort tack and sailiiiii' up the river, which was ihere ;ilioiir tlirei' hiiiidrcil yards wide: that she s;iiled on the port >idc ot' the liaiiLi'er, so that the two v.-sels were li;i>.'iii'i' each distance to clc;i the (iriiee wa> liccolllitahle ha ( ii;ic(' >iiildrnly ;i:m1 .-truck Imi' the llaiicfer inn TIh" ivspoii^ ( iraee, alle^'eil laird from the ■onse<|llenee th !ic at anchor on iiiid whilst she •|i;it the < iraee \ •he UaiiLi-er at M •|i;ir till' Uaiii:'e iihoiit south l>y -tccriiiir north I'ort >ide of' the -ide. ;ind when 'iic wind siidde 'lie sollth-soilth- limlt ol' ;tiiy on I'liirse — that is ■ >\ the (J race w I'x'lyi'a, a laird ''llcr lianl a po aL::iin ; that the ;iiire-sail, leaviir main-sail, tnrnii tioii ot' the Kan,i li;itid>, whert'hy 'i.c llaiiir*-'!', ;i'i' -i'lu was the in U;inirer was in; «)F XKW i;U''\S\VI('l\. 11 |i:i»iiiL:' fiii'li titlu'i' Mil cihli (>tlifr"s |M)rt >"nl<' n >iitHric'iit I'^'^O ili-f:iiiiT to clciU" I'iicli iitluT iiiiil i|o no "liiiiii'ii'c : tliiit •.vlii'ii tin' (irart- \va.-> lu-arK alu'cast n|' tin- Kaiii^-fr, l>\- smiK' mi- liu: t iii.\( f:. lijowiiiii- hard tVoiii the west. \aiTiim' to \V('st->oiith-\Vfst : that in .•oiisc(|ii('n('(' the , was ohliii'cd to lit' at anth<»r on tin- ]t(»rt >i(h' ot' ti:<' I'ixci', iirar 'I'ayloriown, and whilst slu' lay ihcfi' tin- KaiisjTr .-ailf on the stai'lioard tack an«l stccrinu" ahoiit south hy wot. whilst the tccrin!X noftli hy cast : that alter the (Jrace had h't't the I'ort >ide of the v'wvv. and the UaiiiriT had h'tt the starlioai'd -idt'. and when they were altoiit tiil^-e or tonr lenij:tlis apart. the wind suddenly veered round, and a heavy >(|nall tVom the soiith-soiith-wi'st struck the(ii'ace at't, and withoii ;:•( t'aidt of' any one causi'd her to Intl' up and elianued .ler ciiiisc — that is to say. headed her up the river; the mast* '" ■ <\' the (Jrace was at the time at the tiller with Williain !'.<'lyea, a hard on hoard: tlicy (iK>rh of th.-m , |iuslicd the filler liarelvea to let the niaiii-sheet ufo : that aiK yea did run, and ar- '|Uickly as possihle was in tlu' act ot hh Krtiiiu- ii'o the main-sheet, hut iK-foi-c he could oo so tlic UaiiiTi'r lapped on the (Jraoe and took the wind out o|' lur I'lfe-sail, leaviuii" the whole |»ressure ol' the wind on the III :iin->ail, turninu: her head still more iii' I'ivcr in tl le ilircc- iia tiou ot"the liaiiirer, and jerkinir the tiller out ot'the master's lids, whcTehy tlii' (iraci- at one*' canie iiiti> collision with ' Itamrer, ami wherehy the liaiiiri'r sank, hut such colli- 11 wa> the iiievitaide result ot" the manner in which the 'M Uatijrer was mauaired, and not <>win^' to anv fault ot' th 12 VI("K-.\I»MIIiA'/rV liKlMHiTS I'*'" i"ii. I'Mf imtw itli-hiiKliiiii' tlmf tlit-y >:i\\ the Mii rivfi". \t r the UllIlLi'i r Ufpt (III her ('(illl'sr. wInTflt ' Mini tlm- tin- iMiIlI- sinii w as (Mii-fil Itythr liinl iiiiui:iL:<'iiiriit iiinl iiii.-kilriil iia\i- iriiti(tii ot' till' liiiiin't'r. iiml not l»\ lliat of llif (irarr. Tilt' ilrlriicc. tlicicrorr. uH'crcd is in cH't'i-t that il If (•(illi«ii'ti was ('itlnT the ft'siilt ul" iiicx italilc a<'(ii|.iit :'i' \\iv t'aiilt ■■! tlins;- oil Itoai-'l 111' tlic iJaiiu-cr. Ill lln.i-ni's Ailiini-'ili'i /'nirf,',; (])\t i>saiil: •• W'licii ilaiiia-^.' is caiisftl Itv iaiiit s wliirli tin- |>arty rliafu'ed foi-.M not lia\c |ir('\ ciitt'd liy the cxcfcisc ot'onlinarv i-uw. caiitioii. and nautical skill, tlif r»'siilt ol' >ir'li cXfiits i-^ iiH'vitaliJc at'cidcnt." l>i'. Liisliiim'ton, in tlic cist' of Tin Eiimjui [■^\, sa_\ s : ■• Iin'\italiK' arridt-iit nmst he co'isiiU'i-i'd as a rdativi Icnn, and niiist Kc con^rriU'd not al>so|iit»'ly. l>iit rcasonaliK . \\itli ri'nard totlic rirciinistanci's ot'cadi |iartifiilai' case. Ii tlic strict sciix- ol' the tcfm tluTc nw very tew cases t alway- |M»ssihU'. the hare possihility considered, to avoid such aii occurrence.'" Ilow was this collision an iiie\itahl*' accident? (Head- evidence on thi.^ |'onit.) Caiitain I'eck, master of tln' Anu'ola. a witnes< produce d hv the ]>ronioveiits. who was at the time on hoanl of his own ^•l•s-^ i hcatiiiu' uji the rivei-. and ahoiit oiu'-fourth ot a mil« away, h-s-'rihi's the coUir-ion. lie says he was rather ahos, the <;race and Uaiiu'er, and was on the starhoard tack ;i little alu-ad ot the Uanu'ei': that the wind was hlowin:;- ;i strong" l»ree/.e and rather sijiially. The Ivan^er was on In;' starh(»ard tack, and the (Jrace coiniiii;' "Ui her |i()rt ta<'k towards the Kaiiu'er: that she si'cnied to i>e uoiiiir head tir.-r riii'ht into the lianiier: she went sti-m on. and sti'in-k the kanirer hetwi-en the two ma>ts. He thoiiu-ht she struck liei'. hecaiise the av> : (li p. 'I'X ('1\ '..' Moo. 1'. C. N. S. 1 ,. , .; ?,-l L. .1. A.!, iss; r.r. ^ U\A 1. ^'j. •• I dill not no tiv-h thai after Horn any si|iial parties in diari i'c<|uireil my at Kr*'deriek 1> :'iid the pilot ot pretty fri'sh fm was clear and v ■ HI the starhoai the hows on ih'c had kept the m iiiider our steri Would also kee] iifty yards otl". s UaiiiTi'i'."" Ill' I I'V the iieLrlect a and that they to iitiy >udiU,'ii svjii liohert Melvi •• When wt- tac < ij'ace tackt'd on w lii'ii she tackei iiitwecli two 111 iMunded to into • oiirsi' she strui lic liitlcd up inl Im leeward. 1 was keeliilitf m M|iiall ot' wind 1 ;il'oiit the sann- Uaiiirer was sti ri-'ht of way on the ri^rht direc ■"jiiall to striki' 'iiat tlu' ( irace ! :id >truck her. The captain nv m:\v r.ui nswkk. "I dill ii(»t iiMtici' iiiiyM|iiall <»ti that ilav: it \\a> lilowini; I'^'^O lif>Ii thai athriinidi. I :. tiMiii any sijiiall, hut Inmi want <>( \iw^v\\rr «tt' miml nt' the parties in i-hai'i^c (»!' thf -i'I nmi'i' than iisn;il." Kri'iU'rirk Hnnham. amithcr witnr>s df the pKinioxcnts, :iii lilowini; j I'ctty iVcsh t'l'iim thi- smith-wist m-afly ahrad ; the wi-atht-r was rhar and Wf ufrc lu-atiiiir ii|i rivfi'. TIm' iJanijfr wan ■ 111 thr starl>t)ard ta»"k, thf mate at thf wheel, and I was in rlie Iiitws on ileek. 'JMie (iraet' was (III the jMii't tack. Ilshe li;id kept the eourse slie was stiffiniT she would ha\*' passed under our stt-rn. We k<'i»t on onr eonrse, fxpt'etini; she Would also keep on hers. Instead nf doimr so, when ahout titty yards (»tl", she hrouirlit up into the winil and run into tlio UaniTer." lie says: "I thiidv the eo|lisi(»n was occasioned Ky the nc LfU'ct and oversi;_fht ot ili(»f in ••harue of the ( Jrace, ;nid that they took no means to pre\-ent it, I did not ohserve any ^U(hlen >v(iiall." lioltei't Melvin, anothei' witness tor the pi'omoviMits. says: '• When we tacked on the northern side ot' the i-ivi-r, the 'iiiice tacked on tln" southern side; she was a little ln-low us u lien she tacked : when >\iv was ahrea^t of our main ric-irinif, ill t\\t'( n two hundre\\\ idcd to into till' wind, and itcfore we could ehaiiLre our If tl le •'iiirsf shf struck us t'orward of the mam riu'jrnii,''. lif liifled up into till- w ind, she would have c'oiie clcai- of us to leeward. I was steerimr the Uaii<:cr at the time, and I was kccpiiii:: my eye on thf '. «racf Tl lerc was no suf(H rinii- in rlic riirht direction in'tori he In ti'i'd in.. Iiei'f was no inali to >trikf thf (irace, and none >tnii-k her. I iicx'er sa \v that tlie(iract' had l»ecom«.' unmaiianval)le or that a sipiall hid >ti'Uck her." The captain of' the IvaiiLrer s:(ys : '• It was alout four 14 \i(i;-AhMiuAi/i"^' uKi'oirrs I'l 1 .1 IS'^f' (('.•Inr|< ill ill,. ilt'tfl'lK-dll ot' tlir lUtli Mil\ ; \\C Wrl'c l.filtili- Tim: (iii\i 1. "I* '■'^'f "H I'lr >tiirlntiir(l fmU ; \\r Imtl tiiil<«t| mi tin iioi'tlimi >ii|r. Tlif (Jriirc. iilHtiii tli.- -nim time, tiicknl < • till' >|ic M-nt iifiirU iilii-fii-t lir-.r t||f t W ' VCSM'ls Wcl't' lilUillL;' tllfV Wulllt! <;'n rlciir (if cilcli (itlicl'. ill lllllt tllf (ifJIiT WiillM |i:i«- lllldiT nlir -tcni, W llfll ill! I||iu| SIkIiIi'Ii tllf (il'iliT cilllH' til. Iic;ii| til tlic wilMJ. lint H'ivillLl' II- tllllf tn illtrr nlir cnlir-.c: >||c r:i||ll' illtn cnlli^inll \\itlltll«' K'itllil'cl'. I Uimw llntliilli:(i|'llif ITilsnil wIlV flir < ! til if Intlcil. illKJ wlili li nrcil^inlH'il t||c rnjli^inli. cxcflit tVniii wliiit I \\;i> fnid liv tlic liiil>tfr nf tllf ( iniif . iiiiil liy Uflvfii. the liinil win. \\;i> niiiniii'^' tiif (inirc with liim. Thf iii:i Wfl'f cnlnill^' tnn jiiilidy : tllllt ln' ;ilp! IJi'lvfii wci'f >tffriiiii': tlmt he tnld Uflycn tn sin k ntl iL liKUii — lifft. ami tli:it w hf II r.flyfii Id .-) tlif tillfi' fn|M ;• turn fiiiiif ntl' tllf tillf I' iiiid the ( ilcf U as fnliiliui' '<• : 'hi hft'nrc in- startfd tlif liiaili->lif i't he tnld l)fl_vca to Imld m tn tllf -lifft. and hntll it\' tllflll tnnk linid n| the tillff ainl slin\fd it hard tn Icfwaid, t hiiikiiiii' shf wmild fniiif I'niiiiil '•11 thf tither tai'k littnrf shf >trii(k the K'aiiii'fi'. I>fl\i;i alsn tnld iiif thf -.iiiif stnry. I dn imt kimw n|' aii\' >iiddfi stjiiall III' wil id at thf tiiiic nf the fnlli^imi : the re wa- a >ti'nii^ hi'ff/.f. |ifi'lia|is a littlf stmiiLi'fr than it had lifcii Mnwiiii. ft>i' an hniir and a hall' hf fi u-c .'" ('aptain Nnrthrnp. i if t hf ( irai-c . sjiys : ■• Thf wind Ik'U'mi lilnw ini:' iimr. -tl'tl If III >i t slmn W W ( I'f hnt ll hfatlllLl' 11 file \ > Kfacli : Wf Wfl'f thfii alifin I hf ii\ f r. W'f Li'iit inti • I • •I' thf K'aiiL;'!' I', ihf wiml Mnw iiiLi' \ fi'\' licaxv and \-f i'\ lialllin.: frnlll -iillth tn -nlllh-W ,-t. Tllf ll :iiii:'"'r \\a> mi tin i i|i|m i-ii. tack frnlll ii>; \vlifii >lif >iayfil nn thf >larlinai'd >idf nt' tl i'i\cr Wf -lavfd mi thf laihnai'd side. At that tinif thf wiii. as hauliiii:' ~i|iiarf dnw n thi-miii'h i'frlcv's Ufadi. I niaih w my calf iilatinii tn i^-n iindfr tin- stern nt the K*anu'*'i". W'lifi: w !• f;;nif w ithin thrif m' t'niir If imth- nf her the wind sfriiek nini'e at! nil the (iracf. I wa> >tff rin:^-. W'llliain l>fl\i;: hfllifd nif ill >lin\iiio- till, tillff tn imrt. mi a- tn makf thi aec f'l • liiidf f 1 1 If iiaiiLi'f •tfl'li. The ( ■ raff -tl Iiitliii'^- in -pitf ihe tiller and tn he enllhl U'et it ill hehind the i the wind nllt n Jerked the tille liilfa little i|ni< tiller had not j -truck the It'an at ihe tillie i>\' Waii'j:er wa- a 1 -liil't and sijiiall the Ua liner. I >li|'|iin!.:". I thi the siiuall stl'lle IJelyea. the I (Mine illtn stay ahnllt ()]i|ii>siti' When we w«'i'(> I'nund the .■-eh< liel|)inu' liini. lJaii;.:'er had. 'I hiade it h irder wiml, l>l()W inu" \ When w e Were •iniek the ( irat tn liltr illtn the hard as we cni llli'll tnld Illf t liiaili->hfft Li'n. ill the aiikh' and U]i. hilt Itft'nff I'l-cth'T. I th Merii it' tllf -i|ll 111 -tfcr hy tllf die wind was The Uaii;i'fr wa ^\illd. I kimw ■hiiiif- 'j'ia\i- (>F XKW r.i{r\>\vi('K'. 1.'. liifliiiL:' ill ~|'itf n|;ill fliiit \\f ritiiM iln. I fduk u tiini imiiihI l"**" llic tillrr iiml ti>M r.lircl iT' >. ''Ht lifl'i •!•»• 'inj; ( .u v. k. lit' CDllM yfft if 'Iciii- the t'i>l'i'->ilil III' the (linrc liilil U'l't ^lillt * ill Ix'liiiMJ tin- jiltaiitl the r:iil i>\ llic liitiiii"*'!-, wliicii ti>(>k tlic wind (iiit lit' oiir liii't'-Miil : the liii'f->iiil lthvc ji -ihit im»l i.||<('i| flu- tiliiT out nt' IIIV llillli'l\ra ainl liivscll'. 'I'lic Kaiiiri'i' \\a- a little tn wiiidwanl ut'llie (iraee. 'I'lie siiiMen sliil't ami sijiiail nt' u iml \va- the (leea-idii nf m;- niiniiiiii' into the Uanu'ei'. I>elyea leaviun' the tiller 'jiii not m. asion it-i >li|i|iiiii:". I think we were two or three len!:''i> ajiart when the si|iiall striiek the (Jriee." Helyea. the liaild on Imard tie' ( Jraee, sa\ < : '• The \e^sire to us a lioiit a'- far ii|> tl le liver a- we were When \\i' w«'re in stays ('a|itain Xorthrn|i said we will i:<. rciind the xhooiier's stern, lie was steerinu, and I was lie||iini;" him. We had the wind a little more ' .c than the Kall'/er had. The S(|liall eaiiie oil" the shore more tree, whieh liiadt' It h irder to steer, It wa> a tine dav. Il \\a- a lii'^'h wind, lilow iii!i- vrvy hea\_\ and -i|iially oil' the -oiiiL.rii -lior( . When We Were alioiit li\.' leiiLi'th- I'roiii the Uaii'u'er. a si|iiall •tiiick the (Jraee Very liea\y. The M|iiall cauxil oiir \cs-el til jntl' into the wind. We then hauled our tiller to port as liani ;is wi- could. Iiiit -till she lt IuIIIml:'. The caiitaiii then told me to let tin liiaili-^heet lly. I tried to let the iiiaiii-sheet n'o. I trieiriiek i".e ill the ankle and knocked me to leeward awa I'roiii it. I u'of nil, hut lict'ol'e I cdllM Ll'et the .-hect clear t l ;c \-e>-.c|s w ere l()U'c||l..|' tl link We could li;i\ e t;-(i|lc rminil the h :m ■•cr -tern if t he si|iiall had imt -iiiick ii~. The (Iimcc w;i .ii-y III -teer liy the ro|ic. Iiiit -he w a> a had \ ->»d \>> >teer when tlie wiiul was hea\y : -he w a< an nn'lv ve— el to handle. The Uaiiu'er was on the >tarlH un'' ' 'ack. sailiiiii' clo.-c to the wind. 1 know nothiii'.^' ahoiit the riu'lif of wav." anu's '{"raxis. the ma-ter ot' the wiiodlHiat Ama/oii. .-a w IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 2.2 1^ 2.0 1.8 11.25 11.4 IIIIII.6 V] <^ /}. ^j), y -^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 v\ vi('ivAi)MiKAi/rv ki-:rtern t>t" the to l)e keepniiT away, so liaiiijer, until her t'oi-e-sail u'ot in undi'r the tore-sail of the Kaniicer, which seemed to take the wind out of the (iraces fore-sail, and tlie (Jrace came up in the wind and ran iutd the Kanner. \ did not ohserve them doiui; anythini; par- ticular on hoard of either vessel; hefore the collision the wind was Idowins^; stronir and sipially; it had heen sipially all day. 1 did not ohserve ariv s(|uall strike either of the vessels. I thouii^ht the coilision was oci-asioiUMl h\- the Ivan- i^er takiuii; the wind out of the sails of the (trace. I think they were ahout a lenu'th apart when the Kauicer took the wind out of the (J race's the river than the (irace, ai The 1 iauirer was hiii-l ler iii> Fri'derick Whipi»!e, wlio was a passeiiijer (>n hoard tla' woodhoat Auii'ola, whi( h was Iviui^ at anchor a little ahove Middle Island when the collision oc;eurred, sav; ^rii ]{anger was on the starhoard tack, and would have fetched about where we were lyiuii'. I was lookiui!; at the vessels tor about a (piarter of an hour just Itefore the collision. 1 thouifht there would be a collision, and 1 i-alled the attention of l»ersons on board of our vessel to the two vessels. When they ijot opposite to us they were on oi»posite tacks, the Ranii'er a little to windward, and the (Jrace headiuii; for the other's (piarter, ealculatiui?, as I thouifht, to ^o under her stern. When she i:;ot close under the Uansjfer's lee there was a heavy putt", or s(|uall, struek the (irraee, and tlie Ran- i^er's sail took the wind out of the (trace's fore-sail, and tl h leavv 1 pressure o f tl le wi'Ml on le the (trace's maiiisail made hei- luti' up into the wind. The man at the helm could not keep the (Jraee away, and slu; ran into the Kanu'er. I do not think the vessels were two hundred teet apai't when the (Trace luffed up. \ thoui^ht before the s(|uall struck the (irace that she was likelv to run into the other vessel. She was s ve>se ha vim;" [iretty close die miudit have ii'iveu the othei a wnle erth iinde th -tei'u. The dav was verv OF NKW nurxswrcK. 17 \t iiiiUy, jiiid a circuiiistiiMcc of the kind wliidi occnnvd was IHso ry likely to occur in cons(.'(|Ucncc of iMinninu' so close. Tin; liiiAfK. 1 do not think thev had time to let the mainsail r<'iiared to slack of} tlic nuiin-shoet. TIk- (Jracewas, I think, heading' for the other \'essers (|uarter hefore the scjuall struck her, and ki'(.'[t- iiiLi: too close for such a s([ually day."' Teter Melntyre, a witness called i»y the respondents, saw the vessels heatinsj; \\\> the river, and says the wind was very hattlinii,', sometimes west-south-west, .sometimes west, hlow- iiiii' heavv, and u'usts siniallv, much so that he came to anchor wi th 1 lis vesse •himes M. Rose, unite of steamer .May Queen, examined nil hehalf of I'espondents, saw the collision, says : '' \ was in rln' wheel-house. My attenti(.)n was called to the two \'essels, which Were on o[)posite taeks. They were coming close to<:\'ther, when T saw a favorahlo s([uall strike the Grace. Two men were at the helm of the (iraee. T saw one of them iuiii|> forward to where the nmin-sheet was fastened, I tiii)u«i'ht to let it i:;o. Just as the (Jrace was ^i:"oin_ii: i)y, she and ran into the liauijfer. The s(jindl a[>peared roinu led Ul) to nie to reach hoth vessels, it was hlowin^ii: 'i"'f<' oar(l lack and the (ili'ace close-liauled on tlie port tack : that the wind was hlowinii; verv hard, accordinu' to one witness almost a ii;ale, and according; to tlie others that it Avas l)atHini;' and very ojually, so much so tliat it caused other vessels on their way up river to come to anclior. Wlien these vessels went ahout, continnini;^ their beatinir up tlie river, it was almost certain that they would nu'ct or pass close ton them to take the best possible ]>re<'auti()iis to avoid such an accident as actually occurred. 'J'he well settled nautical rule for the i^nidance of sailint:; vessels is, that when two sailiiii^ vessels are a[)proachin_u' one another so as to involve risk of collision, the vessel which is closo-luiuled on the port tack shall keeji out of the way of the vessel which is close-hauled on the starboard tack. This rule, loiiii' recou'nized in the Admiralty, is now embodied bi and prescribed by the statute law of both Eniz;land and Canada. The law in this case imposed upon the (^Irace, beinu: the vessel on the larboard or port tack, the obligation of taking- tlie proper measures to get out of the way of the vessel on the starboard tack, and she should have been prepared to take prompt steps for that })urpose. The captain of the Grace tells us that he made his calcu- lations to go under the stern of the Ranger, and that he steered for that purpose until he came within three or four lengths of her, when the wind struck more aft and caused the Grace to luff; that he and Belyea then shoved the helm to port so as to make the Grace go under the Ranger's stern ; that finding her still luffing he ordered lielyea to let tlie main-sheet go, but before Belyea could get it clear she was under the lee of the Kanger, and thereby lost the control of his vessel, which luffed up quicker and struck the Kanger. This shews that the Grace was rashly kept on her course towards the Jxanger, and that no precautionary measures wore taken for keeping clear until she was so close to ^hc Ranger as to have the wind taken out of her fore-sail, when OF XKW BiaXSWICK. 1!) llic (lisastor iiniiiodiiitclv occurro;er had the riiilit of wav, and was eomi>lvini; with the rule of the sea by holdiui;' to her proper course. The Grace knew she was approximating tlie Ranger, and the wiml being heavy, baftiing, uncertain and s(jually, all this should have put those on the Grace on their guard, and called for the exercise of the greatest caution on their part. They allowed themselves, however, to ai)proaeli too close, or, as one of their own witnesses says, to shave too close before thev took safe and necessarv stei»s to ijet out of the «/ til" "way. When they did make the attempt to bear away it was too late. Before this the Grace had ample time to have kept clear, and to have avoided a collision, and it was her duty to have kept away and to leave the J{anger undisturbed on her tack. I can fully understand that when the Grace found herself so close to the Hanger, and tliat proximity rendered so dangerous by the increased putt' or s(|uall of tlie hiii-h wind alreadv l)lowin<>:, that a confusion arose on board of her in the hurry to let go their main-sheet and to get out of their ditKcult i)Osition ; but all these efforts were tlien too late to ward ott'the innninent danger, which was the natural consequences of their own omission to take necessarv pre- cautions in due time. I therefore do not regard the accident as one inevitable, Ijccause T am of o[iinion, under the evidence, that it might have been avoided by the exercise of due care and skill on the part of the (irace. It was further contended on defendant's i)art that if the collision was not the result of incv'itable accident, it arose wliollv from the ne<::ligence and fault of those on board tlie l\anger. If this were so it would afford a com[)lete answer to this suit, as the law is clear that if the complaining ship is proved to have suffered entirely in consequence of its own ■ HACK. 20 V JC K- A DM I K A LT V li K 1 '0 KTS IPSO iioiclit^uiK'o, it must boar the \v1k»1l' of its own losses; Imt THE(iit\ri;. tlie Imnk'ii of jiroviiii; this fact lies in the (U'feiidants. It was ari!:ueil that the liaiisrer was at fault in not (loiiiii; anvthiiii; to avoid the aecident, whieh it is said she niiirht have dono hy hitiini; np into the wind. Let us refer to the evidenee o!i this point. (Reads evidenee on this |((^int.) Captain Xorthrnp, of the (ilraee, says: " Tf the nuite of the Ranger had put liis tillei- to poi't, and let her up in the wind, it would not have cut the wind out of my fore-sail, and I could have goni' clear of her easily." lU'lyea says: " 1 think if the crew of the Ranger haoar' to avoid the collision. The collision could not he avoided hy anything which could he done l)y the lianger or her crew." Melvin, the mate ot the Kanu'ei", says: " When the (J race was ahreast of our main rigging, as near as f could Judge hetwecn two hundred and three hundi'ed feet distant from us, she rounded to into the wind and hefore we could change our course she sti'uck us. F was steering at the tinu'. I did luit change the course of our vessel. 1 had no time to do so. Tliere was nothing whieli we could have done to prevent the collision, r ue\ei' saw that the (irace had hecome unman- ageahle or that a s(]uall had struck her. Dunham, the i)ilot of the Ixanii'er, says : " AVe kept on our course, sui)[>osing the (Jrace would keep on hers. When we were ..hout fifty yai'ds apart the (Ji-ace hrought up in the wind and ran into the Uanger. T think if he had kept on his course there was not the least danger of his running into us, as he must have goiu' under our stern. When he altered his course there was no time for us to alter ours hefore the (Jrace was into us. The collision could not liavc heen pre- vented hy any etlbrt of the crew of the liauger. The iJangci' could not come u[> into the wind so as to avoid the collision or prevent its violence." Captain Peck says : " It was oidy a nunute's work; it was done very (juick. I think the (J race might have kept clear, and I think the lianger could not have kept clear of her. [ don't think the collision liappened from any s(juall, hut from want of presence of mind of the parties in charge of the (Jrace. I think the Uanger could not hel}» herself. The Ivanger was not in a position to come up in the wind and make the collision more easy." The great preponderance of this evidence goes to exonerate the lianyer from anv hlame for not havinu- taken nu/asures to avoid the collision, as there was no time for her to have 22 VICK-A DM IKALTV RKIM )KTS i % : l^^O ;i l)(j visitod with the o()iisL'lenty of time to have ported Ins liehn and to have done wliat he ouijht to liave done to keej) calm, hut that he did not do so. Me did not alter his helm, althouti:li ho saw that an accidi'ut would inevitably haii[)en. Therefore the Lady Anne was held to olame. So in Wilsdii V. Caniala Slil/ipi/u/ Co. (1) it was held that a starl)oard tacked vessel, when ai»prised of the helpless oon- urse or to wear away in time. In the ease of The Test (2), one similar to the present, tlie Court held that it would bo a verv dany-erous doctrine to hold, without evidence, that a vessel whose duty it was to keep her course ought to have deviated from that rule, there being no circumstance established bv evidence to sho'v that she ought so to have done. Dr. Lushinij:ton there savs: '• I cannot conceive anything more likely to lead to mis- chievous consequences than that a vessel, whose duty it might be to keep her course, should anticipate that another vessel would not give way, and so give way herself, the conse(iuence would be that there Avould be no certainty ; (1) 2 App. Cas. 389. (2) 1 IJur. «j98 s. c. ; 5i\.of C.27G. OF XKW I'.UrXSWICK. 23 whereas the certainty \vhi('li I'esiilts iVoiii an adherence to u^Mieral rnU's is ahsohitelv essential to the satV'ty of navii^a- 'i' tion. It is no (U'tV'nee to a vessel elearlv in the \vi'on<;- that the other vessel, at the moment ot' (hinsi;er, did not use everv means that mitrht appear pi'oper to a cool s|»ei'tator, unless >lie can also shew such neiiTi<;'ence on the part ot the other vessel as nniteriallv contrihuted to the collision." Such ncirliiXcnce on the part ot" the lianijjer, in my oiiinion, has not been shewn. Two witnesses, Mr. Luke Stewart and Mr. -lohn (lihson, were examined on hehalt' of the rt'spondent as to a con- versation had hy them, a few days after the collision, with tlie master ot the l\ani>"er, relating; to the collision, in which they reitresent the nnister as statini; that he ohsi-rved sonic trouhle on hoard the (irace whilst the vessels wei-e two or three ieni^ths a[)art; that Stewart asked the nnister it he had done anythinij; to avoid the collision hy puttini; his helm either up or down ; that the master rei»lied the mate was at the wheel at the time, and that the mate had doiu' nothiny; liut keep on his course; that to a (piestion hy Mr. Stewart whether, if he had made any effort hy puttinuf the helm up or down, tlie collision could not have heen avoided, the master answered he could not say but it miy;ht ; and further ondents had intended to bring this conversation forward as [tart of their defense, it would havt; been more >atisfactory, and T think regular, to have set it out in the responsive allegation, whereby an ojtportunity would have been attbrded for interrogatories and inrpiiry into the whole conversation. The respondents, however, neither assorted it in their pleading, nor interrogated the master concerning ir. It was strouijlv pressed in the argument that these state- incuts bv the master must be taken aijainst him as shewing that he had timely knowledge of the difftculty which had 1S80 IK < lUACK. 24 VK'lvADMIIiALTV I IK POUTS 1880 lictiilK'ii the (irnoi', ainl could, tlicivtoiv, liavr jivoidi'd tin Ti,,.; (jii,\( i:. <'<»lli'^i<>ii. AtVcr cnrct'iilly rciidiiiir iiiid coiniiiiriiiir the wliolt tt'StllllOllN' llil\l' ('OlIU' to tl U' coiiclllsKMi. siitlsliictol'V to Ill\ mind, that tiic uTcat j>rc'|ioiidi'raii(H' and balance of tin- evidence corrohorates tlu' sworn deposition ot' the master a^ to the trui' condition ofatliiiis at and iinnu'(liatel_v het'orc the collision. I'pon the whole view of the case, T am of ojtinion that the collision was caused hy the detiiidt and mismanai^enu'nt of the (Iracc, and \ pronounce for the damau'es accordiu'rlv. DA.MAiiKS. iaisniii' vesse Kepau's. materials and expense Paid Portwai'di'us, Freitfht to Frcdoricton, 1. OSS of time ( if I Canii'er. 8140 (10 osi; 44 i!.') (Ill 120 (III 100 oil .Si»71 44 Interest from ahout 1st March, 1,S,S0, sav (!,', nio>^ :n .)(; 81,00.'} (HI I also n'ive iiromovcnts their costs Li ICl'il (IfCOI'l /""/('/• It niuy be useful to trace the legislation buth in Kn^dund and Canada on the subject of Col- lisions at Sea. Under the Mer- chant ShljjpiiKj Act, 1854 (17 & 18 Vict. e. 104, sec. 298), it is jirovided : " If in any case of collision it appears to the Court before which the case is tried that such collision was occa- .sioned by the non-observance of any rule for the exhibition of lights or the use of fog signals, issued in pursuance of the powers hereinbefore contained, or of the foregoing rule as to the passing of steam and sailing ships, or of the foregoing rule as to a steam- ship keeping to that side of a narrow channel which lies on the starboard side, the owners of the ship by which such rule has been infringed shall not In- entitled to recover any recoiu- })ense whatevei" for any damage sustained by such ship in such C(jllision, unless it is .shown t() the satisfaction of the Court that the circumstances of the cast made a departure from the rule necessary." The etteet of thi- section was to abolish the Ad- !iiiralty rule tli ."liip shall reco if the other liiidt. See.lAn- (;)Kd.) .'!!». 7 CM Vict. c. :.«, sliintially in a<'( 'J'.IMth section o iSliijipliif/ All, N'ict. c. 304), case of eolli.xion 8, by 2.") & >(•<•. 2!). The latt is as follows : " It OK NKW I'.IMNSWICK, 2:. iiiirnlty r\\\v tlint n wronj; . The Ouiadiai' Art Cll Vict. ('. ')H, s. (5) enact."* suh- stiintially in accordaiice with the 'illrHth section of the MirrhniitH Slilp/iiiKj Art, 1K.")4 (17 tV' 18 \'ict. c. 804), that " If in any case of collision it appears to the Ciiiirt heforc which the ca.th, 1^<7«. The Imperial Parliament amended J 7 & IS Vict. c. 104, sec. L'!I8, by 'io & 2«) Vict. c. 03, see. 21). The latter Act, sec. 20, is as follows : " If, in any case of TlIK( collision, it appears to the Court l'*''^* before which the case is tried that such collision was occa- sioned by th<' non-observance of any regulation madt^ by or in j)nrsuance of this Act, the ship by which such regulation has been infringed shall l»e deemed to be in fault unless it is shown to the satisfaction of the Court that the circumstances of the cmm' made a departure from the rule ■ ICA< K nece.« lu'cii infringed, the sliip l)y wliicli snch regiiln- tion has liccii infrinjred siiall lie deemed in fault, miles it is shown to the siitisliiction of tlu' Court that the circiunstances of the case made departure IVom the rejfulution necessary." The following are some of the case>», in the High Conrt of Ad- miralty, decided under the last named section, viz. : The Eng- Hslnuan, li P. D. l«, Tlie Kht- dire, 6 App. Cas. 87(i, The Lepreanx, 7 App. Cus. ol'i, The Imhro, 14 W D. 73, The Ditke of Hucclench, lo P. D. m, 8. (;. 1891, A. C. 310, The Ark- low, 9 App. (.'as. 13(). The Canadian Parliament, following the example of the mother coun- try, enacted, in 43 Vict. c. 29, sec. (), m)W K. S. C. c. 79, sec. ">, that " If, in any collision, it ap- pears to the C^'ourt before which the case is tried, that such colli- sion was occasioned by the non- observance of any of the rules prescribed by this Act, the vessel or raft by which such rules have been violated shall be deemed to l)e in fault, unless it can be shown to the satisfaction of the Court that the circumstances of the ease rendered a dopiirtiin' from the said rules necessary." Section >'< of thirt Act restore?" the Admiralty rule as to division of damages when both vessels arc in fault. It is important to notice that the Canadian Act. 43 Vict. c. 'J!t, sec. f), is almost identical with the Knglish Act, 25 it 2(5 Vict, c. (53, sec. 29, and that there is ti manifest distineti(»ii between tlie Canadian Act and the I'higlish Act now in force, 3(5 tN: 37 N'ict, c. X"), sec. 17. In The Woodrop-Slinit,'! Dods Hli, a case of collision. Lord Stowell said: "There are four j)ossibilities under which a loss of this sort may occur. 1st, It iiiiiy happen without blame being im- puted to either i)arty, as when a loss is occasioned by a storm, or by any other ris major; in that case the misfortune must he borne by the party on whom it happens to light, the other not being responsible to him in any degree. 2iully, A misfor- tune of this kind may ari.se when both parties are to blame — when there has been a want of skill and due diligence on both sides; in such a case the rule of law la, that the loss must be apportioned between them, as having been occasionetl by the fault of botii. 3rdly. It may happen by the misconduct of the suffering party alone; and then the rule is, tliiit the sufferer must bear his own OF Xi:\V KlilN'SWICK. '27 Kiirthcii. 4tlily. It may luivclu'eii the t'ault of tlu* nliip which ran till other «h)\vi) ; and in tliis case tilt' injuiH'd party woiihl he cn- titli'tl to an entire compensation tVom the other." See MnfMcn ml C'ol/lxioil ( .'i K(l.) 12(1, JAu'«- iliii'.'i Ad. Cdnex, 'J.'{"> )iients. A vt'ssel owned and rcgistcii'd in New Brunswick was sent with a cargo nt' deals from tliat Pnn-jnee to (^ueensttiwn, Ireland, tlie intention heiny U< sell lier to liest advantage, after arrivi.l and discharge of cargo. Ktliiits to sell the vessel were not snccessfnl, and after remaining some tinif ;ii (^iieenstown, the agent, hy diret'tions of (lie owner, instructed the ca|itMin to return with the vessel in hallast to New Brunswick. Unable to get needed funds from the owner or agent, to make necessary dishin"sement>, for return voyage, the captain, after due notice, horroweil from ])laiiilill the required amount on liotlomry and brought the vessel back to New Brunswick. After her arrival, the bondliolder, not being able to obtMin payment, began suit for recovery of the amount. The owner ami mortgagees of the v-essel objected to the validity of the bond, on thegrouml that, under the circumstances, the voyage was ended at Queenstowii ; that the vessel recjuired no re[)airs for a new vf)yage; was in no distress. and that the caj tain had no right to give the bond. But Held: — That as the vessel was sent for sale, and that not being ''Heeted, tlio return was but a continuation of the voyage across ; that Queei.stowu wiis a foreign port ; that as the captain was unable to get necessary funds in any other way, he \:n., justitied in borrowing on bottomry, and that tin- bond must be ui)helil. Tills suit wtis orio-inally beu'iiu l>y tK-tioti ot'ploa and j)i-(»(it' but suljse([n».'ntly \>y consent of p.irtios wjis clittno-od ainl condiu'ted as ti suit bv jict !)n iietition, C. ir. Wi'f'loH, il. C, foi' [)r()movent, (ircorge Moloro. C. A. Pdliiicr for tho Elysia A., owuors tuid niortii'aiiXHs. The faets of this case, the evidence, and tlie arirunients of counsel are fidlv dealt with in the followino- iudo-nieiit ct the Court. W.\TTEUS, .T. This was a suit upon a boiul of bottom i\ promoted by (icoru'e Meloro, of (ijueenstown, in Treliiinl. against the tibove vessel. On the part of the bondholder it was alleged in the Act on Petition that in the month of September, 1878, the OP XKW uurxswuMC. 29 srliooiR-r Klysia A,, l)oiiii; tlie property of William (\ Aiulor- l M)ii, of llarvt'v, Albert C'oiuitv, in Xew Brunswick, and S79 TlIK jyinu; in the port of (^iieenstown ready to proceed on a Kiasia A. voyatfo to llarvey in ballast, and the said master, standini^ ill need of eei'tain advances on aeeonnt of the Vi'ssel, and to pay debts incurred toi" i»rovisions and other necessary thiiii^s for tl le vessc 1, which he was totallv unable to defray, and liciuii' unable to obtain any moneys or credit, or obtaiii any thuds from his owner, or moneys on his account, a[»[tlied to the said (Jeorge Meloro to advance the necessary sum, which lie au'reed to do on 1)ottoiury of the said vessel ; that the said master did receive from the said (Jeor^'e Meloro, for the necessary service and u>c of the vessel, the sum of JiW It's. 2d. sterliui!;, tor securin<; the rei»ayment of which the master, on 2;h'd Se[)teinber, 1878, did execute a bottomry hond for that amount at the rate of 4"2l per cent, on the hooner, her tackle, aitnarel, and furniture, the bond to l)e SCI w [layable within ten (hiys after her arrival at llarvey, in Xe Ihiinswit'k : that the said vessel arrived in Xew P>runswick ill the month of Xovember, 1878, and that payment of the hdud had been demanded by the legal holder and refused, \vhcrcui>on a warrant for the arrest of the vessel ^vas issued, wlieii bail was put in on behalf of the owners to that action. The answer to the Act on l'etition,on behalf of the owner of the vessel, alleged that in the month of lSe[»tember, 1878, the vessel was the [)ro[>erty of William C Anderson, sub- ji'ct to a mortgage to dames L. Dunn, Lorenzo H. \'aughan iiiid Thomas A. 'v'aughau, then overdue, and on which the"e was due the sum of $1,748.47: that on the 29th X'ovember, 1'^7'S, the mortgagees sold the vessel by public auction to iiiic David Morrison by bill of sale duly registered at the poi't of ^^t. John, the port ot registi'y of said vessel ; that in thr month of September, 1878, the vessel was lyiii!• tl le puri ritose of beinjr sold; tha.t she arrived in (hieeiis- t'lw 11 in good order about 27th July, 1878, and not in need lit any repairs; that she remained at (^ueenstown until oOth w VICE-ADMIKALTV KKl'ORTS 1879 Soptoinboi', when she dopartod from (Jnccnstowii, hut slu' Thk '^^''i^ "<*t at that time muler any contract or chartei' party Elysia a. ohliirinui; her to jiroceed to any port, l>ut was then ahont tn emhark on a new voyai^e; that the moneys were not ad- vanced and jiaid hy reason of the vessel undergoing rei)airs, or in i)ayment of any repairs i)reviously made. That the master did not, before applying for the moneys, a}>ply or attempt to apply to the owner of the vessel, nor did lie in any way attempt to inform the owner or the said mortgagees of his necessity to obtain the said money, and in fact that no such necessity did exist; that at the time tlu' vessel was at (^ueenstown the owner resided at llarvey, in New Brunswick, and the mortgagees resided at 8t. John. N. B., between which places and Queenstown there was telegra[»hic communication, and that there were weekly mails between the same places, taking from seven to nine days for their delivery at St. John and Harvey; that the said moneys were not advanced for the necessary service and use of the vessel, and were not used in payment of rejiairs or in the purchase of necessaries for the vessel ; that the master was not totally unable to obtain any funds from tlic owner, and that he never applied to the owner for any sum. nor was any sum required for the vessel ; that the master had no authority in law to borrow money on bottomry with- out notice to and the consent of the owner and mortu'agces, nor should he have attem}>ted to borrow money for the ves- sel or take her out of (Queenstown without the direction of the owner and mortgagees. The reply, on the part of the bondholder, pleaded: That the vessel was sent to (Jueenstown with a cargo of deals, and was in that port, wlien after endeavoring to sell the vessel. but no purchasers offering, the owner, on 29tli August, sent to George Bell, of Dublin, who was acting as the owner's agent in Ireland, this cablegram : " Elysia return. Eti'eet insurance on hull Elysia, i;2o0;" to which George I'ell replied by cablegram : " A\>ssel is detained in amount of i')". Cable banker's credit," to which no reply was received: that then (Tceorije Bell wrote the master that he had no fnnt OF XKW r.KUXSWICK. :n the owiior, and left the master to raise what funds he recjuired ^'^'^ to ii:et the vessel out of port as hest he eould. Xiik That tlie master haviiiii; endeavored to ohtain advances as Ki.ysia A. well on the credit of her owner as of himself, and the vessel not heing in i'-ood order and unready for seu without his obtaininy; sueh advances, and the nuister having also sent a cahlei^ram to her owner and received no reply, and being in want of money to enable him to proceed to sea and to pro- cure necessaries and outfits for the vessel, did, by public ad- vertisement, advertise for an amount of £100 sterling to bo lent to him on bottomry of the vessel, he having no other means of obtaining the same, and the said (ieorge Meloro then agreed to advance anon bottomry of the vessel : that the said moneys were a}tj)lied in fitting out and getting the vessel readv for sea and in pro- viding necessaries for her. That before applying for the said moneys the master did ajtply as well to the owner of the vessel as to (leorge Bell, the owner's agent in Ireland, informing him of the necessity which did exist, and of the moneys recjuired, and that said (icorge Ik'll did also inform the owner of such necessitv. That the said money was advanced for the necessary service and use of the vessel, and was used for payment of necessary re})airs or in purchase of necessaries for the vessel to enable her to proceed on her voyage. That the master was totally unable to obtain any funds from the owner, and that he and the said George i)ell did apply to the owner to obtain the necessary funds for the vessel. That the master had authority in law to borrow the said moneys and give the bottomry, the nuister being unable to ohtain them in any other manner and the owner having neglected to furnish the same. That it was not necessary to have any directions from the inortii;agees, or to give them anv notice. ISo rejoinder is made to this rei)ly. The cas.- of the promovent is established by the produc- tion of iiroof bv the execution of the bottomrv bond, and bv the deposition of James William tScott, of (iueenstown, who 32 V 1 C K- A 1 ) M 1 1 { A I/r V K K 1 •<) 1 ri's li; 1879 sworo tliiit till! Klvsiii A. arrived at tlit' port of Qut'onstowii in Tin; 'T"'}'? 1^7^!, with a cari^o of (K-als. That after the (lisi'liar<>:iiiL>" Elysia a. of the eari^o, (leoi'ii'e Bell, of Diihliii, actiiii!; as ai^eiit for the owner, endeavored to sell the vessel, and heinn' unable to do so she was ordered to return to Ilarxey. That he (Seott) aeted as ai!:ent of the vessel at (^ueenstown, and had made certain advances to the master to pay neces- sary disltursemeuts connected with the vessel ; that 1 received the freii^ht on the cari::o of deals, hut that a halai If ice still ivmained due to him. That the master re([uired further advances to t'urnisli necessaries to enable him to leave the said [lort ; that U[ioii aii[>lication made to said (ieorije liell, he wrote a reply that he had no funds and <'ould not make any advances, but Icl't the master to raise funds in the best way he i-ould. That the said master sent a cableijjram to the owner of the vessel residini:; at Harvey, re([uestin_ii; funds to be remitted. That haviiii:; no reply, and he (Scott) declinini; to maki- anv further advances, and the master beiui; unable to obtain anv nionev on his own credit, or the cre- burseiiients in detail is air'.exed to the dei>ositi(^n). OF XKW r.KrxswicK. •J:3 Tliat tho verssel, shortly aftor tlu' dati' ot the bond, saik'd, J«"'-> as diructi'tl l)v Mr. Boll, tor llarvi-v, Now Hrmiswick TlIK That tho hottoiiii'V of the vessel was actually lU'ci'ssarv to Efasia A. I'liahlc tho inastt-r to raisr tlu' \'n\\i\<. \'vi[mvvd to I'liaMf him to rolit'Vi tl IV yv!i>c I t roiii ( K-ht aiK 1 t t> jH'oct't'd to sea, aiu that without siidi hypotlK'catioii the master would have lieeu utterly unahle to relieve the vessel and proceed to sea; and that the houd was executed in ijood faith, and without any fraud oi- otherwise on the ))art of any ]»erson whatevei-. There is also a deposition from the bondholder of the due execution of the bond, and that the loan was entered into by him in irood faith. On the part of the owners, the following' evidence was (^tiered : 1. ()f the master, John K. Sim]>son, who swore that he sailed in tlu' vessel to (^ueenstown with a caruo of deals, where he arrived about the 27th -Inly, ]H7H. That (^ueenstown was his port of destination, and that he believed the vessel was sent there for the purpose of beiiii;- sold That when she arrived, the vessel was in L,^ood order, not iieediui;- any repairs. That the vessel discliari'-ed her cargo and I'emained at Queenstown until about -JOth Septendier, and duriuii" that time was not in distr ess, nor m nee< I of repairs. That the Klysia A., when she sailed from (^ueeiistown, was not under any contract or charter party conipellijii;- h(>r to proceed to Xorth America, nor was her so proci-ediuLT a rontinuation of any voyai;'e, but the same was a ni'W voyaivc. That as there was no immediate jtrospect of selling the Vessel, he concluded to brinjj; the vessel out of the [)ort of '^leenstown, and briny; her out to this Province, and foi' the purpose of payiui:: the advance waii;es to a crew, and his own waii'es, and the other outward disbursements and bills of tln' vessel, he obtained the sum of JcW l!>s. 2d. on bottomi'v of the vessel now in suit. That at the tin)e he advertised tor and received the saioiiiteose of hoing sold ; that she arrived at (^ueenstown in good condition; that W^illiam C. Anderson was the reiiisterod owner. That the vessel, when she left (iuoonstown, was heginning a new voyage^ she not being then under any contract oi' charter party to proceed to Xorth Auierica, or on any voyage. That the bottomry bond was given witluMit any notice tu the mortgagees, or either of them. That the vessel ai'rived in St. .b.im in Xovemher, 1878, up to which time sho had not received any re[)airs or been in any distress, and that no part of the money from the b(»t- tomry bond was expended in [>aymeut for any re[)airs. That the bringing the vessel from (iueenstown on this voyage, and the oxikmiscs incident thereto, causeil the mort- gagees to lose [)art of their debt: that they knew the vessel w^ould have sold at Queenstown for more than sutHcient to pay the amount duo on their mortgage. That when the vessel was at (iueenslown, the Messrs. Anderson resided at TEarvey, X. 15., and the mortgagees at St. John, X. ])., and that immediate means of communication OF XKW r.RrxswicK. 85 existed hi'twut'ii (^lU't'iistown and Ilarvi'V iiiid St. .lolm liv a l^"'-' woeklv mail, bv wliirli a U-tt cr coil Id 1 tc sent in tVoiii st'vcii to iiiiK' (lavs from (iiR't'iistowii to Ilai'vi'V, or St. .lolm. The i^roiinds of oltJiM'tioii urijiMl a^'aiiist this hond : 1. That the FJvsia A., liavinu' hri-n tlispatched with a carn'o ot" deals to Ciiieeiistowii, wlu'i'e it was intended that she should 1k' sold, the port of (^neenstown became theri'by her |i(»rt of tinal destination, and that, beini:; in that IJritish ]iort, her voyai^e was up; and that no bottomry bond could be then taken for the i)ur[>oses of a new voyai/'e, and it was stronifl}' contended that no master in a British ship in a liritish port, on a new voya^v, can bottomi'v a vessel. '2. That the vessel, not re([uirin!.j any rejtairs, and not liavinu; been in any distress, there was no necessity existin*; to warrant the master in u;ivini>' a bottomry boi\d. '•). That the master, before u'ivinii; the bond, did not iipi)ly, or attempt to iii»ply, to his owner, nor did he inform him or the mortiragees of his necessity and obtain the money. As to the tirst y-round, that the ori^'inal vovayv was ended when the vessel arrived at (iueenstown, where she was sent on sale, it must be remembered that the Hlysia A. was a Canadian foreii;'u sea-_u;oin^ vessel, rotfistered in Xew Bruns- wick: that she had sailed from Xew Brunswick with a car^'o of deals for (^ueenstown, where the owner contemplated scllinsi; lier; whilst she lay at (^ueenstown she was, there- fore, at a foreii;'n port. It is a.liei;-ed by the promovent in his pleadinii;s, and not denied by the owner, that no pur- chasers otl^erinii' to buy the vessel, the owner sent to Afr. (leorii'e Bell, his ai;'ent at Dublin, this cablcii'rani on 2lHh AuiiMist, 1(S7S: " Elysia return: ettcct insurance on hull, i;2.')0." To which .\Ir. Ik'll replied: "Vessel is detained Till-: Ki.v«i.\ A. on acc( )uut of i:.")0: cable banker! ■to which the owner sent no reiilv. I'nder these instructions it became the dutv of the aiastei" to obey her owner, and liriui^; the vessel to her lionu' port, and his power for that [airpose would l)e as full as if he had sailed from Xew Jirunswiek with the oriuin.;".! intention of makinu" ii I'cturn voyau'e, and such return of the Vessel to X"ew Brunswick \ should consider as a contimui- tion and com[»K'tion ot her oriu'nial voyau'c 36 vicK-Ai)Mii{Ai/rv RKpoirrs 187(1 The iiriiicijilo coiitriidod t'oi* laiirlit apply rsuccori.stullv If Tin; ^1"^' bond had l»cc'ii ifivi'ii by the master ii» his hoiiie jxn't Ei.vsiA A. prior to the coimiieiieeinent (f a voyaije ; hut, as I have I'einarked, tliis vessel was in a f'oreii^ii [»ort, and (^n her I'etiirii vovau:e to the eouiitrv where she heloiiifeih On this \)()'\ut 1 woidd refer to tlie AtlDiilx.. (1), where tlie validity of a hoiid was held not atiected hy the eiroiimstance of the money being advanced before an interveniiii; voyage, if given for advances necessary for the vessel to prosecute and coni])lete the original voyage. Xext, did a ntn-essity exist for giving this bond? It is well established law that it is that state of nn]»rovided neces- sity that alone suj»[(orts tiitise l»onds, and the al)sence of that necessity is their undoing. The Xrls'l > ) lied. won Id pre vei It tl e [irosperous completion o )f tl le voyage, including, therefore, indispensable repairs to the ship and necessary provisions for the i)eo[)le on board. A master entering a foreign })ort in need of necessaries from 'ss or otherwise, nniy incur debts for repairs or necessaries; these debts may be purely personal, but he mav borrow on bottomrv from anv one not the creditor to j)ay such debts. The North Slof (8). In the case of '/'//< l\(iri«il,-{A). before the Privy Council, the Court savs: " When a mastei* cannot in anv other wav raise money which is indispensably necessary to enable him to continue his voyage, he may hypothecate the ship; this j)Ower would extend ti» a case where the shi[» might be arrested and sold tor a demand for which the owner would be liable. It seems immaterial whether the necessity for funds arose from such a demand or \o pay for repairs, stores or port duties." Fn the case of Ilclddii v. O/zz/yV;*// (■")), Baron I'ai'ke, in speaking as to what constitutes necessaries for a d 8)111) av; "The master is a})pointed for the purpose of conducting tlu' navigation of the shi}» to a favorable termi- nation, and he ha> as incident t(.) that eni|)l(>ynR'nt, a ri rht (1) 'Jnd Stiiait, Ad. Koj). Vir*. (•J I 1 Iliigg. 170. 3) Lusli. 50. (')) G Ex. 880. (4) L. K. 2 P. C. oO.-). (I) 7 Price .')92. OF NKW IMUNSWICK. 8T to bind lior (»\vnt'r tor all that is noci'ssary ; consotiiUMitly lie IS"^ lias portbct authority to hind her in-incipal owner as to 'f,,^- all repairs ni'ci'ssary tor the pni'posi' ot' hrinu:inu' the shij* Ki.vsia A, to its |M»rt of destination; and he has als(» power, as inei- (U'ntal to his a|»poiutiMi'nt, to borrow money, hut only in eases where readv nionev is neeessarv. that is to sav, when certain pavnients must hu made in the course of tin* vovasxe, and for whicii ri-adv money is reciuired. An instance of • t 1 this is in the payment of i)ort dues, which are recpiircd to be nam m cash : or liifht^ •hid or any dues wliicli retpiire imme- diate cash payments. So also in the case referred to in the course of tlu' ari^ument, liob'nisDn v />//'/// (1), where a ship, Ix'inii" 5it the termination of the voyai^e, and about to pro- ceed on anothe'", money borrowed to pay the waiivs ot seamen, who would not u'o on the second vova<;e with- out beinii' paid, was considered necessary. See also 'Jin (hmaidl (2), wiiere a bond tfiven for tlu' jturpose of raisinn- sup}tlies necessary to briny; the \-essel from Ahdta was [iro- nounce( Ifo ft was also uru'ed aifainst this bond that the money i-aised was use;^. to repay moneys advanced to the master whilst the vei-soi was lyinii; at (^ueenstown, and for supi»lies jire- sumably purchased there, and whicli wi'i-e at the tinu' the bond was executed, on board of tlie vessel. This would. T thiid-:, make no ditference jtrovided the advances were made and the stores supplied on the understandinii: that they were to be se<'ured by a l)ottomry of the ship. Lord Stowell, remarkintj on a similar objection, says it wiis of no conse- <|iience whether the money was advanced at once, and the liond immediately entered into, or whether the master re- ceived it at different times and uavi' a bond for the whole amount. In the case of Tin' KariKil: {■\), the juduv held that ill the case of money already siijiplied without any itrevions au'reement, it is to l)e presumed, in absence of all evidence, that the foreign lender made the advances in contemplation of bottomry security, aiid the presum[)tioii is increased when the lex h)oi empowers the lender to arrest the ship in satis- faction of his demands, and this power of arrestinu- the vessel, (•->) 3 W. Koh. 219; s. c. 7 N. of C. 322. (3) L. R. 2 A. & p]. 28U. (1) 7 Price .")92. 3H VICK-ADMIUAI/rV lilirnliTS l*^"'-* I liiivi' no (loiilit. till' li'iidci- hiid iiikK'I' flic Ilii|it'|-itil Act, .'5(1 Tii7: '^ "•' ^ '"'■' '■• ^1"^' '^^'•■' •"•^ I't'liitiiiu' (() tlicCoiirl (»r Adiiiinilty Ki.vMA A. ill Irclainl. i coiisidtT it in'ovcd l»v tlic t'vidciicc tiiat tlu' iidvaiiccs iiiid siijiiilics I'liniisJH'd to tlic iiiiistcr ill this case were iic<-css;n Its fur tlic iiiiiiicdialc use ol' the \-essi'l, and to eiial)!*' liei' to leavi' (^lU'eiistowii, and that the iiiastcr was iinahle to ohtaiii aiiv uioiiev on his own credit, or the credit of her owner, and had no means ol" raisiii«;' the iiioiiey except hv hottoiiiry, the alleu'atioii to the contraiwin the res|)onsi\-e alleii'atioiis on lielialt' of tlu' owner are not snstaiiUMJ, or atteiiipted to l»e sustained, h_v aiiv evidence whate\'er. The Itond is also iinpeached on the _i;"r(»nnd that then' was not sntKcient conininnicatioii with the owner or niortijaii^ees of the \essel |»ri(>r to tlii' execution of the hoiid. The con- trary of this is allci^ed hy the proinovent, in his nleadini;, when he sets fortli that the master did apply as well to tiie owner of the vessel as to (jleor_i>v JJell, actinuf for litM* us ai^eiit in Ireland, informinu' him of the necessity that existed for the money, and that the said (leori^e Hell also informed the owner of such necessity. Xow what is tlie purport of the evidence of the bondholders to prove such communication. The allegation, in liis reply, and the detemhint's answer, W'hen he says : " That after endeiivorinu; to sell the vessel, and no purchaser ofieriniui;, the owner, on 21)th August, sent to (leori^e ]iell, of l)ul)lin, who was actini; as the owner's agent ill Ireland, this cahlegrum : ' Klysia, return, effect iiisuranco i)\\ hull, £'2di); ' to which George Bell rei»lied by cablegram, * Vessel till- t'lii'tlii'i' .illt'u'.itioii that lirl'orc ii|i|ilviiiu" tor tlii' "^"'•* iiiMiu'v (111 Iiottdiiii'v, tlu' iiiiisti'i' dill ii|'|'lv ii> wi'll l(» till' '1',,,,. (iwiuT ii-; to ( M'oriic Tu'll, iiit'ofiiiiii!;' tliciii ol' tin- necessity Ki.v-i,\ A. wliieii existed for the liiniiey, iind that lieiiijj,- totally iliiahle lo raise aii\', the master and (Jectrii-e Uell did ii|i|ily to the owner tor the iH-cessary I'linds for the N'essel. '!'(» this nu)st iiii|iortant and material alletratioi. there is no eoiitradietion or I'Xiilanatioii whatever (dll n'(l on hehallOrihe owner. The evidem-e of William Scott on this point is, that iipoii apiilicatiiMi to (ieorp- Hell, he wrote in reply that he had no I'linds, and left the master to I'aise funds in the hest way lie coiild, and that the master sent a cahleii'i'am to the owiiur rei|nestin-e Uell coinmiiiiicated to the master that bottomry was the only course he should pursue to eiiahle him to carry out tlu' owner's iiistriiclioiis to pro- ceed to Harvey. The deposition of the master, William K. Simpson, wliieh sliotdd have set forth all tlu' tiiets hearing; upon the ease within his knowled«::e in a clear and candid maniu'r, is to my mind neither clear nor satisfactoiw. ITe nndi'0 It iiiav Itc liti-riillv tnu' tliiit lie was not iK'ivoiiulIv dirt'ctcil TiiT; ''y li«'i' owner to hriiii; out llu' vi'sscl, whilst I hi'licxo it tn Mi.vxi A A. lu' really Irnc that he hroii^'ht lu'i* out in eons«'<|nen('e (»f tin' (M'der contained in her owner".-* eahleirrani to Mr. I5»'||. On the _i;ronnd of want ot' ('oniinn..ieation to her owner, he is e(|nally : That he ( lid not eonitnnnieate with her own«'r or tl Tnorti^aii'ees relative to horrowinif nionev on hott(»inrv of the vessel, and that he had no directions froiii them t^ hottoinry the vessel." This (1(K's not meet the allcii'ation in the pleadinij; of the hondholder, when he says that the nui>it«'r, lu'fore ai»|tlyinu' foi* moneys tVorn the hondhohh-r. ait|tlied ti> hei- owner infnrnnnii- him of the necessity which o.xisted, and of the money ri'(|nired. The statement in the master's atlidavit that he did not conimnnicate with her owner ridati\'e to horrowini; money on hottomry may he itself trne, whilst it may he also trnc as a tiu't that he communicated to her uw ner tin- nei-essity the vessel was in for funds to i'md)h' her to leave (Queens- town. .\uain, we have no plea (»r reioinder denyinu' tlie alK\u,'ati(Ui in the h(tndholdei''s reply to rlu' answer. That licfoiH' apiilyinu' for the moneys the mastiM" did apply to .he ownci' inlbrmini;' him of the necessitv the vessel was in; if this a\'erment wa> untrue, the e\idence of tue owner him- self would have heeii most important t(t sho.v the contrary: the ahseuci- of any e\ideiico from the then owner, whose testimony, it deemed important, could haw heeii ohtained throuii'h thi.' process of the Couri. leads to the inference that, if produced, it would not tend to the heiietit of tiic defence. With the evidence now 'oefore me, and in the ahseiice of an\ thin_u' to the contrary from the then owner, I conclude that hotli the master and Mr. IJell did communicate to the owner full information of the wants ot the vessel to emihle thciii to ohev Ins or( lers f 'or a ri'turn ol' the vi 'ssel to X( ew IJruns- A\iok, and that his silence autliori/ed the inastLM' to take such measures as were expedient, and such as a prudent master would take who could not get instructions from her owner*. A direct ajiplication for authority to raise money on hottomry need not he li that a letter written on 1» in i'liiirland o in<; no apjilic for repairs, w iiioiiey on i)o This was, t iiients in a fn idered impor: iiiercial interei >iipporte(l, Tl iii'tiuii' as the ; lifMiestly iiml V <'t his [>rineipa 'liaracter of tli i"t i'M'ly. or i Vessel prior to OF XKW llIM'XSWirK. 41 iii't'd lint Im-iiiikU'. ft was held ill till' cjlrti'ot' till' Ihnniixii'li (1) 1^7'.» tli:it ii IrtftT lV(»iii tlu' jh'itisli ("oiiMiil ill 11 loi'ciirii port, t,',^. written (111 lifliiilf of tlif iiiiHti'i', iiitni'iiiiiii; tli*- (•oii>iiriii'i's Ki.v-i.v A. ill I'liiirliiinl nl'tlit' (limiiiu:*' siistniiUMi \)\ the voksi'I, luit iiiiiU- iim' ii(» niniliciitioii tor iiioim'V. ikm' rt'tiTriiii; to tlic iK'ci'xsits fur rf|iiiirs. wns siillificnf iiotifr tor the |iiir|io>t' of ruisiim- iiioiicy on liottoinrv. This WHS, thcrfl'orc, ii hoiid li'iNcii tor lu'ci'ssiirv dislnirsL-- iiiriits in a t'orciun |»ort, when' thi' owiu'r had no pri'si'iit iTt'dit: where the iiiiister was without funds, and without the means of raisini; funds, except ii|ton the credit of the vessel; hotli the iii^eiit of the owner and the master wi'iv aware how neei'ssaiT it was that money should he raised to y liim. Mr. Mell had advised tlu; master to raisi- money as hcst he could, and the master actiiit; undei' ln'se circiim- ^taIl(•^'s, iid\'ertises for the money, which is advance*' hy Mr. Meloro, as I think, Ikhhi fiili, and is U'liitimatcly. in my opinion, [\!^i.'(\ hy the captain in discharii'iiii;' claims thus ('xistiiiu' aii'aiiist the vessel and to eiiahle her t(t yo to sea. When a <'ase of necessity is estahlished. and the want ot personal cre(lit is heyond (piestion, and no imposition has lieeii jtrai'tisod upon the master, it is as a ijeneral ruK' con- >idt'red iniiiortant for the security and lu'omotion of <'om- iiiereial interests that honds of this descriittion should he siijyported. The presumption in such casi's is that the master, iictiiiii- as tlie agvnt of her owner, would perform his duty liniu'stly and would not unnecessarily suhject the propi'rty of his pi'iiu'ipal to liea\'y burdens, and notwithstandiiiu' the • liaracter of the evidence now ii-iveii hy the master, I am ot' eiiiiiioii that at the time he executed the hond ]iv adojited tliat course which he helieved t(» he for the heiietit ot" all parties c()n cerned in the vessel. As to the li'round of ohjeetion raised that the master did Hot ajiply. or attempt to a^iply, to the mortii'auves ot the vc»rl pricir to the exei'Utioii of this hond, there is no a\'ei'- (1) 17 Jiir., 2Sr) s. c, S Moo. P. C. 47.".. 42 V I ( • Iv A I )M 1 1 i A LT Y 1 { K I '( ) 1 {TS 1S79 iiu'iit or i'vidi'iuT that tlu' iiiortiriiifoi's iiaiiK'd wwv iii<»it- Tmk .irau'i'L's ill possession, or that tlir vovaiji' was uiuk'i'tak*.'ii lor Ei.YsiA A. tlu'ir Iteiu'tit, or that tlu' master or sliip's airi-'iit, (u'orux' lUH, or thc3 l)()U(lhol(l(.'rs, had any knowleduv of tlu' (.•xistt'iici' of tlie niortii'aii'c. 'I'hi'rctorc 1 must hold that the u'roiuid ot' oI»)c'('tioii iiiiist t'aih I'luk'r all the ('irciiiiistanccs of this casi.', I pronouiu'r for tlu' validity of tho hoiid, and, of coiirsi-, with costs. ./)((■/'((' ill-CI)f(/lll(//l/. The judge referred it to i.ie llegistrar to aseertaiii tlieiuuount due oil the bond, and on a later day he reported (hie SoJ^S.oil l)rincipal, and S3().7() interest, at six |K'r eent., from Dec. G, 187''^, the time wlien tlie Ixjiid bceame ])ayal)le, to Docembe'- 20th, 1S7J>, the date of tlie decree, in all S625.25. Respondents objected to this rate of interest, claiming it should only be four per cent., tlie rate allowed in England. The Registrar held that the legal rate allowed at the place of payment should prevail, and on appeal to the judge, this ruling wa.s sus- tained. The contract of hypothecation was familiar to the Roman law. From the Pandects it is shown that the master might, under stress of necessity, borrow money on the credit of the ship, hut bottomry, as at present under- stood and applied, has grown to importance since the time of Grotius. Browne Cicil and Ad. Law, vol. 2, p. 195. Accord- ing to Browne, vol. 2, p. 19(), " Hottoiiiry is a contract fur money lent upon the vessel, on condition that if the ship be lo.^t the lender loses his money ; l)ut if the ship returns in safety he is to receive his i)rincipal, and aim interest even beyond the legal rate, on account of the extraor- dinary hazard, and for the l)ene- fit of commerce." Mr. Phillips, in his work on Iiisarance (5 ed.), vol. 1, s. 298, says: "A marine hypothecation is a maritime con- tract whereby the owner or his agent pledges his ship or goods as security for a debt accruing on account (^f advances or other consideration, and payable on condition of the subject being safe, or in proportion, or to the amount of the part of it saved, from the marine perils specitied in the contract." The interest charged is beyond the common rate, and is denominated marine Interest. Another writer thus defines it : " The contract of bottomry is in the nature of a mortgage of a ship, when the owner of it borrows mnaev to OF XKW r.Hrxswiciv. 43 (MiiiliU' liini to (.•any on tlu' voy- ii^'i', aiitl j)k'clu'o."< tlio keel or liiiltiiiit of the A\\\) lis ii socui'ity tor its r{'i)aynK'iit ; and it is un- ilt rslood that it' the sliip hv lost the lender also loses his whole iiMUiey ; l)iit it it return in safety thill he shall receive hack his iniiicipal, and also the preininni ir interest stipulated to he paid, liiiwever it may exceed the usual r legal rate of interest." J'itrk •III Marine Insurance (5 ed.) 410. As to the distinction hetween liiiilnmrii and respondentia, the sime writer says : " In this eon- >i^ts the ditierence hetween hot- '1)1(1/7/ and rexpondentia ; that the oiR' is a loan upon the .ship, the iitlior upon the goods: in the foniier the ship and tackle are liaiile, as well as the person of the horrower : in the latter, for the most part, recourse must he hud to the person of the bor- lowp. " {ibid). In MavlacJdan on Shipping (ed. of 1892), j). 512, bottomry is said to be " an agree- ment entered into by the owner of a ship, or hi-s agent, whereby, in consideration of a sum of iiioney advanced for the use of the ship, the borrower under- takes to repay the same, with interest, if the ship terminate her voyage successfully, and binds or hypothecates the ship for the per- formance of Ills contract. The contract, which must be in writ- ing, by which this hypothecation i^ ertected, is sometimes in the i-hape of a deed poll, and is then called a bottomry bill ; some- 1"^~9 times in that of a bond. What- 'p„T, ever be its form, the contract Ki.ysia A. should be clearly .set out in it. The essence of the contract is that there shouM be a maritime risk to be ascertained from the vviiting" And again, on p. 51;}: " If ship, freight, and tiirgo are hypothecated, the (;ontract is bottomry; when cargo only is hypothecated the contract is res- pondentia." Such a bond caniu-t be given for a debt incurred on a former voyage. The Hero, 2 Dods 147, and if the money was advanced, or the indebtedness incurred on personal credit, a bottomry bond could not after- wards be given to cover the ad- vance. The Angnsta, 1 Dods 2«;]. Where it is practicable to comnuinicate with the owner, his consent must first be obtained. The Oriental, 7 Moo. P. C. 408 ; The Olivier, Lush. 484, and such communication must state not only necessity for expendi- ture, but also the necessity for hypothecation. Kleinwort in Cassa Marrittima of Genoa, 2 App. Cas, 150. Dr. Lushing- ton says: " It is not competent to the master, with the consent of the owner, to grant a valid bot- tomry bond upon a British ship lying in a British port for a new voyage." The Royal Arch, Swa. at p. 276. It would be other- wise, '.owever, if the ship were in in a foreign port. The ports of the Dominion of Canada are 44 VrC K-ADMIU ALT Y R KP( )liT8 1879 liome ports so far as bottomry is m,~, concerned. The Three Sisters, EiA'siA A. 2 Stuart, 370 s. c. ; Young's Acl. Decisions, 140. Untler the Vice-Admiralty Courts' Act, 1863, the Dominion of Canada is not a possession within the meaning of that Act, so as to enable a Vice-Admiralty Court established in one Province to entertain jurisdiction over a ves- sel registered in another Pro- vince for the enforcement of clainjs between owners. The Edward Barrow, Cook 212. This question of jurisdiction is now regulated in Canada by the Admiralty Act 1891, 54 & 55 Vict. c. 29. To give the Ad- miralty Court jurisdiction to enforce a bond, sea risk must have actually been incurred. The Atlas, 2 Hagg. 52. If the bond expresses a maritime risk, absence of ])rovision for maritime interest will not invalidate it. The Laurel, Br. & Lush. 317. The bond will be valid even if there be no stipulation for interest of any kind. The Ceeelie, 4 P. I). 210. A bottomry bond payal)lc on arrival in England is trial)le by English maritime law, not bv the law of the ship's flag or the place where executed. The Ham- burg, Br. & Lush. 253. In this case Dr. Lushington, at p. 2.")!i, says that Lord Stowell, in The Gratitudlue, 3 C. Rob. 240, lias exhausted all the authorities on this branch of the law. Lloiid V. Guibert, L. R. 1 Q. B. li.'). Although the voyage may l)f illegal, yet a bona fide lendci' on bottomry can recover. Tin- iVartj Aun,'L. R. 1 A. & E. 13. The validity of the bond de- pends on the necessities of the ship, and the authority of the master to boirow is based on such necessity. The Pntitldn, '■> P. D. 102, 177. As to priority of master's claim for wages see The Edward Oliver, L. R. 1 A. & E. 379 ; The Daring, L. R. 2 A. f St. .Jolin, was injured by a hawser atttiolied and beionginf; to a steanisliip moored to tlie wharf. lhhl:—T\vAi since tiic |>assing of the Statute '2») t;iiidins came into eoiitact with th tl I di K' passeno:er oar, throiiijii neii:liijence and carelessness on tlir part of tlie steamship, and in conseqiieiice the passenn^er ar was overtnrned, thrown from the trai'k, and irreatlv ilaniasiu'(l out of this C^ourt. The respondents, the owners of tlu' vessel, entered bail and aj)peared under pi'otest, denyinij^ the jurisdiction of the Court on the i^round that the jtrop- ii'ty injured tit the time was on the hind and within the hiiily ot a county, and they therefore prayed that the judire I'ronounce for the protest, and dismiss the defendants and their l)ail trom the action. After aro;uiiient, the Court pro- iiniuiced in favor of the Jurisdiction, overruled the protest, and assigned the res^tondents to appear absolutely. ^'"'. a. Gilliirt, (i. C, for promovent. 1). S. I\t rr, (}. C, and Ja/iit Kerr, for respondents. 46 VrCK-ADMIIiAI/rV liKI'OKTS issi And now (Nov. 14tli, A.D. 1S81), the followini; Jud^-nuiit TuK was (U'livei-ed l»v Tj':i)i>iNfiT().\ Watti;us, .1. Tliis is a rniiso of diuniiii'o ]»roniot(.'d li\ Joscpli X. (Jivcn iiijiiinst t\\v st('ii)iishii» 'rt'ddiiiuton. 'I'lic aflidiivit ujion wliicli the warnnit issued alleijes that tlie >iii(l Joseph X, (Jreeii is the owner of a jtassen^er railway cai'. and tliat wliile the said ea. was standing' on tln' railrnad traek at Sand Point, in Carleton, in the eity of Saint .Idlm. it was oxertnrned from off the said traek l»y the hawser ot' tlie said steanisliip, and by tlie eareless, ne<^ligent, and ini- jtroper manner in whieh the said steamer was manau'cd. That the hawser at thi' time of sncli damage was attached to the said steamshi[», and secured the said shij) to tlie wharl'. An ajtpearanee has been entered uiuler [»rotest by the owners of the steamsliip, who have filed an aet on i)rotest. in which the jurisdiction of this Court is denied on the ground that the cause of action arose within the body of the city and county of Saint John. They allege, in their act. tliat the place where the collision in (|Uestion hai»[»ened, was on a railway wharf, called the C^irleton Branch Railway wharf, situate at the easterly end of I'rotection street, in Brooks Ward, in that [(art of the v\t\ of Saint John called Carleton, and within the body of the city and county of Saint .lohn, and not on the high seas, or within the juris- being moved from tiiis wharf to another part of the harbor. as she swung around, her hawser, wdiich was attached to tin.' upon which the railway ear was standing, came in w harf contact with the car, overturnins'' it and doini'a : but this : Story, deliverO' is indefensilile foimdcd upon sliov.'s, notwith Statutes by the JHi'isdietion, bu tracts and all t( :nid in ports a^ nieiit of Judge Sir Robert i'h ralty, in the lat liei'sonal damaij He says "that a case as the pr liy tlic terms ot iiinl it is clear f (1) -'Gall. Kep. ; OF XKW IJKrXsWICK. 47 \'ic('-A(liMiralt_v ('ourt Act ot'lSd:}, which nrt over ^' i-liiinisfov i/minn/i iii In/ anj/ >/iij)/' T\w i^^^y (Iciiiiil of the _jiii'is(lictioii of tlic ("oiii't is nrii-cd l)_v rcspoixl- Thdhixoton I'lits' coiiiisi'l oil two iiTomids; l,thiit tlic cause ot iiction arose within tiie hodvot' the <'itv iiiul coinitv of Saint .lohii : :.', that tlie article (huiiauvd was not a niai'itinie ol)iect, and therefore the cause is not one of a civil or niai'itinie nature, iiiid that the t/ciiKii/c named in the 10th section of tlie Statute im'ans a daniau'e done hy a shij) to a ship, and not a dainai^e y the terms of the Patent under whit'li 1 hold my ofHce, ami it is clear from the old authorities that the Court had a ( (1) -2 Gall. Kep, .-.'J- [•1] L. H. -J A.^ K 48 VlC'K-Al)MIl{Af/rV KKl'OliTS 18S1 jurirtdit'tioti over all torts and injuries done within the elih 'fii|.; luid How of the tide as well as iijion the hi<;h seas. The TKDinNCiTON whole law is collected in the jud^nnent delivered hy Mr. Justice tStorv in the ease ot Dc fjoriu v. /io// .- that iudifnieiit ill truth exhausts all the learninu; upon the suhjcct.'' The jurisdiction of the Iliu'li Court of Adiniraltv was, however, very much e.xtended hy tlu' Imperial Statutes passed in the years 1840 and I87. on i- wholly i\'ni High Court claim tor dann ship' and ' boi rliey are not, t The utmost ju III' collision."* This judgm Appeal held t Court of Admi In the case < under the sevei ill a cause of d engaged in di\ luiddle-wheel o was objected t means damage said: "By the tended; the se' iliimage, does i the jurisdiction jurisdiction in t ease of the .\ial' was given to t tended to the b( Also in the /: a-venth section So, in tlie cas ii.ire done by a s Aiiildhisiaii (4), V il' the river Mei tnreniost into tl rile case of tlie C a telegraph com wliieii had got f( "f the master; tl tl) L. R. 2A. i_v these most (.'Xpivssivo words, 'The l^Hl !liii:h Court of Adtiiiralty shall liuvc jurisdiction ovct any 'f,,,.; claiin tor daiiia,<:;e done hy any shij).' The words 'sea-_i;oinu; T::!>i>iNf:ToN ship' and ' hody of a county" ai'e not used, and 1 am ijlad they are not, for constant coidusion has arisen from tlu'm. The utmost Jurisdiction is now ii;ivcn to the Coui't in cases lit' collision/' This judi^nuent was apiiealed trom, but tin' Court of Appeal iield that the t)l>iections to the ^jurisdiction of the Court of Admii-alty could not l)e sustained. In the case of the Si/Jpli (1), it was held that the Court, luider the seventh section of the Act of 1H(!1 , had /pirisdiction in a cause of dama.MiKAi;rv KKiMtirr 18S1 Till' casi'..!' thr M. M ii.i'ii III 1 ) Wiis a caiisr of daiiiaiiV in- TiiE stitiit(.'(l au'aiii>t an Miiiiii.-li stL-aiiisliip and li'-i" iVciiilit lni' TicuDiNciToN i;:2, .')()() U)\' r(»llisi()n with a \Ary nt" tln' plaintitr's in Spain. Tlio owners ot tlir sliijt allrnTtl lliat the pii-i' tbnn».'(l paii m' tliL' lan and Mow of thi' tide npon a pier on the teri'itorv nl Spa!n. Tht' act of iii,inry was (h)iu' from the merchant ves- sel a1 sea. thon<;'h the ohject injnred was sitnate on the land."" Thesi' and other decisions made since the jiassanv of the Admiralty Act of I'Siil clearly establish the Jni'isdiction nf the lliu'li Court ot' Adnni'ally in I'jiglaiid over all cann- ot damau'e done ity a ship, whether npon tlii' hiu'li st'as or ujion puhlic naviii'ahle ^^■atel• •(vithin the hody ot' a county. Mr. Uoseoe, in his work on Admiralty Practice, p. lio. says the _inrisdictii)n of the Admiralty over actions ot' dam- aii'e is at the jiresent day hased partly on its oriu'inal /pirisdic- tiou and partly on tlu- modern statntes. I'nder the seventli section y the \'ici'-Admiralty Courts of (^)iu'liet' and Xova Scotia. In the case of Tin Wi/rdd {•2), for collision in the harhoi' d' llalitax, and in the casu of 77'( Ch'isi (:5), in a cause ol damau'e done hy a ship to a wharf in llalitax harhor, Sir William ^'oun_^' held that the Court ot \'iee- Admiralty had jurisdiction. In this I.'r()\ince this Coui't has, within the oast iew vear^-. exercised jurisdiction in cases ot collision arisiny' upon the ])uhlie na\ipdile waters of the river St. .hdm. Xo (piesti (111 ot jurisdiction was raised i. any ot tiiese cases, althonL:'li '>! '> s 1,2) (3) (1) 1 I'ro. Div. -18, 107. tuiiil's Ki']i. Iv")! ; s. r. Young's Ad. Ducisiciiis o4. ^lii:irt'> \W\>. odl; s. c. Vouiiii's Ad. Decisions 113. each was stroi live respondei tain no donht: Miiii'lish decisi liuve citt'd am the (pR>tions li>iiin,U- that tl llii< court hy n\errule the ] ilppeai' ahsolut III A. I). KK) l)<'li' liV the l•^■^l t'u'c ri's|ioii(lciits. AltiT lu'iii'iiii;' nil tlic ai'u'Miiu'iit- I enter- -|-|,,; tilill ll'» (lolllits ill the lU'esi'llI ease. The resisoiiilie- jn the Ti:i>l'iN<.T(iN KiiiiTish (h'eisioiis u|i()ii the A(huii'aUy Aei, isdl. which T have cited and i'elerre(l to, I adojit as directlv a|i|ilical»le to the (luestioiis raised in tliis ease, and as conclusively estali- lishint;- that the case tails within the /lui'isdictimi i:i\en to this conrt l»v the \'i(H'-Adniiraltv Act. Isil therefore (iveri'iile the proti'st with costs and as>ii:'n the owikms to :ili|.ear ahsolntely. Onln-id (/rrun/'iu/li/. Ill A. D. 1(!(J3 the Court of which it did not then |»ossi'ss. Dclejiiites rever;h by the Warewoll and her ear;:-o, 14!) (l^^liO). The jurisdietion caused hv those on hoard the was still further enlarged hv the 11 inner vesse 1 lea vniL tl leir an- -tatwte 24 Viet., c. 10, sec. 7 Imr in the river Thames with- (the Admiraltv Court Act, l-SGl nut a huov. Cases, 24; M: irsden See Ad. il w herehv the Iliirh Court could ilso a similar entertain ' anv chum foi' di UlKlL-'c nil uiiient, Mniiihty v. The Marif, done hy any ship." It was held lh!(l 2S4 (A. D. 170.'!). The the Court had no jurisdieti on ii|H>rnd Statute A- 4 Vict. inder these Ai'ts to entertain a . ()."), st'c. () (1S40), enacted claim for damages aixainst a that the Iliuh Court of Admi- steam-tuj: occasioned to the ves- '1 towed l)v nciiliuent towint:'. nilt y snail have jurisdiction to where the tlamauc arises not hy lision, hut hv tlu' vessel lak- cu • Itcide all claims and demands whatsoever in the nature of . . . . damage received hy i'i whctli vc>scl may have heeii within the (2() t^' 27 Vict., c. 24, sec. lOj, hndy of a county or upon the gave jurisdiction to Vice-Admi- lii,::h seas at the time when ralty ('ourts to entertain "I'laims damage received." for damages done hy any ship." Tliis Act conferred upon the The decided cases under these Admiralty Court a jurisdiction Acts naturally relate (1) to ii^ to contract and damage aris- y the nmntcr airiiiiist ii |iasMii- ifcr. A diver injured in tlie river Mersey l>y tlie paddle wheel of U Mteiimer wuf allowed to proceed In. irm. for dama^M's. Th>- Sylph, L. H. 2 A. iV K. 2H ( 1'). Jiut there has been inueh (•(iiiHiet of authority as to the right of the Court to proceed in rem. for such injury. Sir Robert JMiilliniore, in the ca.se of The (iiiM)itxe, L. U. 2 A. iSt E. 32;") (1H()«), held, but with .some doubt, that the Court had such Jurisdiction. The point came be- fore the Judicial Committee in The Beta, L. K. 2 P. C. 447, (186!)), on aj)peal from the High Court of Admiralty, and was de- cided in the same way. The pro- visions of Lord Campbell's Act were held to extend to a case where the person in respect of whose death damages were ."ought, wa.s an alien, and at the time of his lieatb on board a foreign vessel on the high seas. The Explorer, L. K. 3 A. & E. 2M1) (^870). But The Beta was dis.sented from in Smith v. Broivn, L. R. 6 Q. B. 721) (1H71), in which, on application for pro- liil)itiou, it was held that the Court of Admiralty had no juris- diction to entertain a suit in rem. under !> iV 10 Viet., c. 03, for 1881 personal injuries resulting in -p^i^. death, occasioned by the collision TkkdinotoK of two vessel.' Tl le <|uestion again came up for consideration in tin' case of The Francoiiin, 2 V. I)iv. I(i3 (1«71). when Sir Robert I'hillimore held that the (.'ourl had jurisdiction to ent»'r- tain an action for danuiges against a foreign shij) tor injury resulting in death, and in the Court of Appeal this judgment was sustained l>y an eipuil divi- sion of the Court, James and Baggallay, L. JJ., in favor of, and Bramwell and lirett, L. JJ., di.ssenting frotn the Admiralty judgment. This left the law in an uncertain state, as there had been no judgment by the House of Lords. The point was again raised in The Vera Vruz, 9 P. D. HiH, before Jiutt, J., whosu.stained the jurisdiction of the Court. The Court of Appeal, ibid !)»>, rever.sed this decisiini, holding; that 'an action in rem. ajrainst a foreign ship, under Lord Camjt- bell's Act, 9 & 10 Vict., c. 93, s. 2, is not within the Admiralty Court Act. 1861, 24 Vict., c. 10, , ir Tin: Ti:i>i>i\«iToN (1). J'i'iihihiliuii — JiifimUrtiini — IhiiiKii/f />.//(»• an Lmiit — /v'//(T< of Sir, 1(1 ['in-- Aihiiit-nllii All, 1M(;;|. Tlif \'i(v-.\ii))f nt' ilu- N'iii'-Ailiiiiralty I'oiiit All, lS)i3, ^t'c. 10, liiis iiirisdicliim to t'litrrtuiii a nnit for (iiimiiKf iloni' liy II -liip to |ir()|iiTty, iiltliiiiiKli the piiiiicrty injiiri'il is mi liiml, iiiui wiiliiu the liiidy ut" a I'diiiity. Till' ifMriRMJ jii(lii-c (if tlic \'ii'v-A- trst, iiiitl assitriii'ij tlii'iii to iipiK-ai- ahsoltitcly. Cotiiisi'l t'or [•rs|toii(lciits tlii'ii iiiadi' an aiiplicalloii in (Miainbt'i's to Mr. Justit'c Talincr, one of tlu' judi^cs of tlic Sii|>i'i'nu' Com-I of Xi'W l>i'nns\vic'k, fof an onlcr, or rule nisi, callinLr iiiion tlir \'i('i'-Adnnralt_v .riidi;-c and tlu- ]ii'oniovt'nts in tlic cans*' in tliat Court to show causi' why a wfit of in'ohihition should not issin- to stay all fui'rht'i' pfoi •('(.'( lit in's in the X'icc-Adini- ralty Court. I), S. h'l rr, i^. C., anil ./"A// AV/v, for the apiilii-ation. (n'ln/i (i. (ii/liiii, (^>. ('., cDiiffO. And now ( Dc'condicr '2(tth, A, I>. .''■'^1), tlic followiiiir judii'niciit I'l'fiisinti' tiu' I'uli' nisi \vas dc'liveri'd hy l'A'..Mi:ii, d. This is an a'liplii'ation for an order raHini; ujioii the Hon. Charles Watters, the diuln'e of the Admiralty Court, and also upon the proniovents of a cause in that Court, to show cause at the next term ol' this Court why a (1) Si'c .l»^', |). 4(!, for tlie Juil).'nient of Mr. Justice Watters. Tlie appli- caticiii lifliii'i- Mr. .Instipf I'alnu'r for ii rule nlxi for prohibition was nut, striitly sinaivinj.', a proita'diny in Admiralty. The jiulKinent. liowever, is an im|>ortant contrilmtion to tiie I'iufidation of a inncii ik'lmted siilyect, ami it lias liei'ii di'i'iui'd iiroju'r to insert it in tliis place. — Ei). writ of iirohil '■ccdinL'"s in a liaw>er comin vents, then oi .lohn, which ' ants' (the o\\ lion of the < "i dudo'c Wat protot. whii' tion is thai i over such cai I'oints : M. .\s the ■ity and coiui there. liiid. M\cn daiiiao-c was the water, not water, such C I lia\'e colli Court has jiir judi.^' of that ■ d' his very ah miralty had n :iiid I infer h and Hows, i-ontcntion of jurisdiction ol lillh S of tllC! ( tVuiii time to jurists, such a meet similar rally in Knu'la to act : and i tends and wa Kiio-land itscil 'lot to the exti ||' sea shore, t I'oi'ts, liavs, hi i)V M:\V UIMNsWiCN AA A I'it of liI'MllililliMll rilioilltl Hut i-i-llr to |p|(\rlit l"lll'lln'|- |iro. H>t' for m \«'iits, ilu'ii on ii wliiirl ill ('iirK'toii, in tin- said city (»l" St. • loliii, uhifli (•aii>t' Iiii'l |troi'r»M|iMl in di'tiaiii'i' ot" the apjtli- rants' (the owners of tlir slii|.) [iroti-st (k'liyiiiu llu' Jiirir-dic- lioli o|' tllf < 'olll't. • Iii(l<.^»' W'attcis u'axf an fjaltoratr o|iiiiioii, o\frriiiiiin' 'I'*' protot, wliidi I liavc lit't'orc iiii'. Tlu' apiilicants' conli'ii- tioii i-; tlial tln' \ irc-Adiiiiralty Court lias no inrisdiction ■ ivi'i' sii.'li caii-t', and t(» >liow this their eoiiiisd made t Wo oinr? Isf. As the eanse of (hinia!::e oeellirecl in thi' Itoily of the iry and eoiinty (tf St. John, siieh Court liad no Jurisdiction th.'l-e. -ml Mseii if tliis were not so, as tlie fhin^- to which the ilamau-e was done (a railway car) was a thin;;- neither in the water, nor was in use either in niariiie matters or on the water, snch Conn had no jurisdiction. 1 have come to till' <'onclnsion that the \'ice-.\diniralty Coui't has jurisdiction, althoiiu;li I disau'ree with the h'arnci'a shore, to distin<;uisli it from the tidal siiores of tlie I'orts, havs, harhors or rivers, in order to elearlv under.stund i)() VK^K-ADMIKALTV KKrORTS ri 1881 tlie oojniiu)!! law Jurisdiction of tlie Adiiiiriilty and ("oiunioii 1'„y Law Courts, as the latter had <»!dy jurisdiction in tlio body TKDDi.vfjToN of some <'ountv, and conscMiuentlv \"ithin the territory ot' Kngland, and tlie first on tlu' seas only, as T will hereafter s!:ow, which included all the waters which were not included in the territory of Knyland or some other country. AVc cannot luulerstaud where each had jurisdiction witliout first tiudinii' out what was end)raced in the territory of Kugland, remend)erini;; that eyery place that was within such territory must he within the hody of some county, as the whole was diyi(k'd into counties, and all such as Ayere not so incluj ^l). settled the (question as T haye aboye stated, and this has jdways been acted uiion since l)v the hii>'hest courts of the ivalm, and cannot now, 1 think, be (piestioned. He in that ease says: "Xo person eyer heard ot a ciyil jurisdiction of the body of a county whitdi extended three miles from the coast,"' and it has l)een uniforndy held that all [)orts, liarbors juid ti(hd riyers in the king(h)m were jiart of the territory ot Knu'land, and that those places were not on the liiijh seas. j)y the courts of the common law, cases were to be tried in the county where the cause of action arose, and when the i'omnnssion of the Admiral only gaye him jurisKrX8WICK. .)/ other, aiul the honnchiry of the territory was the houiularv ISSl ot'each jiiri.sdiction resjiectively. Tlie counties extended on '^ny the littoral seas to low water mark, where the hii>-h sias Ti:i>i>ix(iTON liei^an, when the tide was in to higli water mark. As the law adnnnistered in the Court of the Admiral was lariivlv tbnnded on the eivil law, the ri<;-hts of parties were dili'f.ent when a cause happened u}»on the seas tluin if the same thinu" happened in the territory of Kni!;land, wlierc such riu'ht was li'ctverned hy the rules of the common law. For instance, if a ])erson"s property was injured by the fault of the owner and also of another, hy the common law tlie owner could recover iiothini; from the other [)arty to l)lame. By the civil law. as administered hy the Admiral, • .cch party to hlame wouhl lie made to contribute to the loss. Ai^ain, in the same case. it' a third party's proi»erty was injured by the wrong of several, the Court of the Admiral would make all th" tort- feasors contribute, while the courts of common law would enforce tlie whole claim against any one of the wrong-doers, iind would enforce no contribution. \n this state of things, the comuK^.n law courts assumed and secured juris(licti(ui over what they call transitory actions, by resorting to a tic- tion, that is, by alleging, contrary to the fact, tluu the action arose M) the county where the vemie was laid, and the plaintitt" sought to have the cause tried, and thus took cog- nizance of causes actually arising within the jurisdiction of the Admiral ; and as the common law courts lent themselves to this aggression, and there was no p.ower in the realm ti) and tlow, ''en within the bodies of the comities, yet they Were never allowed to exercise it, and that tiiev could not exrrcise such jx^wer has been the settled law in Fngiand tor a great imniber of years, down to the passing of the Admi- ralty Act in IStil. Ill 1S')'2 the late Tioltert L. Ila/A'U, the then judge of our vick-admikaltv KKi'oirr issi Vicc-Adiniraltv Court, in tlii' case ot'tlii' IJoadicea, the caib llisioii near rarti'idi::^ Island, in tlu' liarlx)!- < Tin; heniii" tor a en Ti;iu>iN( TnN St. .lolin, and within tht' hody of thf city and county of St. .I(.)hn, in a most i-hd)orate and Avcll reasoned Judi^meiit. decided the \'ice-.\thnii'alty ("oint of Xcw Ilninswick hml no Jui'is(Hction. in this conchision I entirely concur. 1 therefore aii'ree with Mr. Kerr, the respondents" counsel, tliar sucli Court had no jurisdiction previous to the }»a.ssini>: of the \'ice- Admiralty Act of 1artii's will in many cases vary accordinu" to tlie Court in wliich the litiii'alion takes place, l)ut I think this is a con- sideration for parliament and not for a judt'^e. 1 admit it must he shown tliat 'parliament has Lfiven siu-h jurisdiction by plain words, Tlie rule is that a distinct and ;".ne(iuivo(al enactment is recpiired tor the purpose of addiiiii" to or takiiiu' from the jurisdiction of a siqierior court of law. Thus, in »y///'7/' V, lirairn (1), the C-ourt say: "■ It seems to us impossi- ble to siip[»ose that the leii'islature can have intended hy ;i chaiiLje in the p(tsitioii nf side wind to elfi'ct so material a the [)arties concerned."" See also A/fortK// (jl-nitrKl v. S'lllim (2), and Cniislii.^ V. Ijdiiilttird B'/nl,- (^)). Then, has ]>arliament u'ivi'ii such jurisdiction in plain hiiiijiiau'e hy tl'.e \'icc- Admiralty Act ot LSI]:}'.'' The [»reand>le det-lares that one of the objects of the Act was to enlaru:e the jurisdiction ot' the Court. ( )f course that iniu'ht be done by adtlinu* to the number of matters of which it was authorized to take coli- nizaiKH', without exteiidiiii;' tlie jurisdiction territorially: but it is clear that the Act does e.\*^end the jurisdiction tei'i'i- toriallv, t'or it ::':\'es jurisdiction over claims that inu? ai'i>f 111 otiier ]tl xrv than on the hi<:'li si'as, such as claims ti>r repairs and dislmrsements, and also for the possession ships, the latter restinu* on title which can only be ac(iuir( by declaration of owiiershi[) and rt'u'istry in tlie body (1, L. R. r.<,>. D. 7-2\\ (•J) UJ II. L. 7(14. (■■i) L. It. 1 Ex. D. 40G. H-nne county. i!' the Act it matters in resp have jurisdict (_'fr. and that i' in tliat case it ^ ['ci'son, but the this word t-aiiiu 1. ider the Adn tile same, dam; injury to any ] ahhouu'h much Slid ill this case OF XKW IJia'XSW'ICK. WW cnr.iity. iH'ariiii;; all this in miiul, look at tlu' words ^'^'^1 tlu' Act itscU'. Section 10 enacts as to] loW: Th TlIK mat have ttcrsin I'csiict-t to which the \'ice-A»lniiraltv ("oui'ts shall Tkkdinc.ton lun sdict ion are /////,''/), Ir follows that it" what is claimed tor m this action is (laiiiaire doiu' l»_v a slii|i, parliaiiieiit has declared th'tthe \"ice-Adniiralt\' Court siiall lia\'e in sdictic on, and it jiarliainent lias said so, 1 cannot Miy ctherwise. If that is all that is iiect'fsarv to u'ive Jnris- 'liction. it can he of no importance in what place that damage was done, or what other Courts have Jurisdiction over the It IS not damairc done to a sliip or (»ther marine th same cause, matter or thiiiii;, hut damaije done hy a ship : and it would not he less damage done hy a shij) if the damau"e was done !iy a shi[> to a house or railway car, or other personal pro- perty, than if done to anoiiier shi[i. Then all that remains to he ascertained to li'ive the juris- ilii-tioii is whether what was done to the railway car was (I'Mie hy the shij) lihelled. The promoveiit says that he is [U'cpared to prove that it was. The res[)ondents" protest alU'ires that it was done with the shiji's hawser or lines hy rile movements of the ship, it appears to me, if so done, it was done hy the ship. The momentnm that caused the injury proceeded from the shi[i hei'self. I say nothiiiiii: as to who was to hlame oi' as to whetlu'r the promoveiit will he itititled to recover. I have iiothiiii;- to do with that. It will he the duty of the worshi[)ful Judii'e of tlu' \'ice-Admi- ralty Court to (kn'ide that (jncstion. The word damau'e Would ai)iiear to include (himai:"e done t(j any property at Ka.-t. and that it did is a word cannot he so limited, and there ari' manv cases del- the Admiraltv Act of ISCI in which tl le wol'i Is are t.ic same, damaii"e done hy any ship — which (Un-ides that injury to any jiroiterty is covered hy tin' enactment, and was said in (.>■ carico .l/v/o,v (1) can he althouu'h much that all 1 ill this case, it the hartlship of havinu' a dlflerent rule (1) L. K. •') 1'. ('. i;4. ♦50 VlCIvADMriJALTV liKl'OliTS issi of lii\v to srcnovM SI cjiso in which tho partios liave a reincilv rp^,,,, ill the ordinary coui-ts ot tho comitrv, and tliat parties sliould TKPniNOToN l)t' conipclk'd to have their riii'hts tried by the anti(|nattMl, cunil»ersonie and expensive mode of proee(hire of the X'ux'- A(hniralty ('oiirt, and tliat tliere shonld be no ai>|>oal from a sin_i'o]ub'd'(iiri rcfu The Court of Admiralty in England is of great anticjuity. iMr. Justice Story, in his cele- brated judgment in De Lovio v. Boit, 2 Gail. 308, s. c, ^[eyer's Federal Decisions, vol. 'io, p. 19, delivered in 1815, says: "What was originally the nature and ex- tent of the jurisdiction of the Admiralty, cannot now with ab- solute certainty be known. It is involved in the same obscurity which rests on the original jiiris- i)iN(;TON the time the Duke of York ceased to be High Admiral, the judges have held their commis- sions directly from the Crown. The badge of the Admiralty is the anchor and twisted cable. "The eilver Oar of the High Court of Admiralty of England is the ensign of its authority to arrest both persons and vessels on the high seas. It is kept in the custody of the marshal of the High Court, atid is placed on the table before the Judge of the High Court when he sits in judgment. Of its origin as an ensign of authority, nothing is known for certain, but there is little doubt that the Silver Oar of the High Court is of greater anticpiity than is generally sup- posed. Whilst there are some grounds for believing that certain portions of it are Edwardian, and so far may be coeval with the institution of the office itself of the High Admiral of England, the Silver Oar of the High Court may be thus described: Its entire length is about two feet nine inches; the lower part of it, or what would be termed by mariners the "loam," consists of a stem one foot nine inches long, divided into three compart- ments b}'' knobs or rings, from the upper side of which an oar blade extends, about a foot in length, shaped like a paddle or \V1 \I('K-AI)MlliAI/rV KKlMHrrs issi Tim; ancient stfi'i-iii:,'' oar, and liaviiiii' various i'iiil»k'ins embossed on its Tkddim.ton yMx\ ( From an article l»y Sir Travers Twiss, I). ( ". L., (^.C, on "Tlu! Jnrisdiction of the Silver Oar of tlie Admindty," in the Nantical 3Ia;i'MziMe, vol. 4(). p. 572, A. D. 1.S77 Tl le common Ii i\v jndi^es were ever i'i'a2), p. ;n. Tlii> wnter also contends that the original jurisdiction of the ad- miralty was either by the cnn- nivance or pernii.ssion of the common law courts, and that the status's of Rich. 2 and lieu. 4 were only in atfirmance of ihr common law, and to limit the ])over which the admiralty hail gotten from the laws of Olerdii. The Courts of Common Law, bv means of j)roliii)itions, gradu- ally denuded this court of much of its anc: ut jurisdic- tion, so that it at length came to be considered necessary that contracts to hv cogni/.alilt- in the Admiralty must be mailc upon the sea. IJy the statute- lo, Rich. II, c. 5, it is eiiacteil "that the Admirals, and their deputies, shall not meddle lieiuv- forth of anything done within the realm, but only of a thiiiu do)ie ii))(>ii. the sea, according a^ it hath been duly used in the time of the nohh' King Edward, grandfather of our lord the kiiiir that now is." This refers to Ivl- ward the Third. In the time of Richard II tlic realm consisted of the land with- in the bodies of the counties. All beyond low water mark wa- part of the high seas. At that period the three mile radius wm- not thought ol'; per Lush., -b. in L'c;/. V. Kf'iiii ■j.",!l. Tliejurisdi( Ports exercised ii Itrs in relation extended to lo\ ''and as far bey as a horseman the .t'(l muU'r their cliiir- tcrs ill rcliitidii to the .sou sliorc (■xti'ii(U'(l to low water iiiark, ''and as far hcvoiid that mark us a horst'inan couKl rido into the sea and touch any object uitli the ])oint of a spear." Sir Tiavers Twiss thinks we may (liscerii in this ancient rule " tin* iiiitlines of the principle which iiiis l)een applied in modern limes in limitation of the extent iif sea over which a neutral State may claim to exercise a (piali- licd jurisdiction in time of war, namely, ' Ihl pofeKtatcm friiir'i. iihl tutihir ((rniDrnm c/.v'.' " Two years siihsiwuiently, hy the statute lo Rich. 2, c. :>, it was enacted '"that all manner of contracts, pleas, (|iiereles (com- plaints or controversies), and of all other thiiijis done or arising within the hodics of counties, as Well hy land as hy water, and also of wreck of the sea, the Admiral's Court shall have no inamier of co jurisdie- tion : 1. over torts and injuries upon the high seas and in ports within the ebb and How of the tide, and in great streams below the first bridge ; 2. over all maritime eontracts arising at home or abroad ; 3. over matters of prize and its incidents." For an able judgment opposed to the extended jurisdiction claimed by Story, J., see Ramsai/ v. Allegre, 12 Wheat., 611, per Johnson, J. In 1575 an agreement was entered into between the judges of the King's Bench and the Court of Admiralty as to the limits of jur- isdiction to be observed ; and still later, in 1632, certain resolutions were entered into by all the I'rivy Council, and subscribed by all the judges of England, for the purpose of establishiiig and limit- ing said jurisdiction. These res- olutions, which may be found in Browne, Civ. and Ad. Law (1st Am. from 2 Eng. Ed., 1840), vol 2, J). 7'S, are as f( '.lows: — "If suit should be commenced in the court of admiralty ujwn contracts nuide, or other things personal, done beyond the seas, or upon the sen, no prohibition to be awarded. "If suit be before the admiral for freight, or mariners' wages, or for breach of charter-parties, for voyages to be made beyond the seas; though the charter- party happen to be made within the realm, so as the penalty be not demanded, a prohibition is not to be granted : but if the suit be for the penalty ; or if the (piestion be, whether the charter- party were made or not, or whether the plaintitt" did release or otherwi.se discharge the same within the realm; this is to be tried in the king's courts at Westminster and not in his court of admiralty. " If suit be in the court of ad- miralty for building, amending, saving, or necessary victualling of a ship, against the ship itself, and not against any party by name, but such as for his inter- est makes himself a party, no prohibition is to be granted, though this be done within the realm. "Although of some of those causes arising upon the Thames beneath the first bridge, and divei-s other rivers beneath the first bridge, the king's courts have cognizance ; yet the admir- alty has jurisdiction there, in the j)oints specially mentioned in the statute of 15 Richard II. And also, by exposition of equity thereof, he nuiy enj. V. Keyn, 2 Ex. D. G3. The Court at present does not have jurisdiction to entertain a suit against a pilot for negligence in causing a collision between two vcsr^els on the high seas. Reg. v. The Judge of the City of London 0.(0'/ ( 1892), IQ.H. 273. This !:• an important case as, in it Lord Tm: KsIkm', ^[. K. re»'iews and dissents l'**^! from the views of Story .f. in DcLorlo v. Ilolf, ■■mimi. The en- TKiiinNfiTox larged jurisdiction given to llic High Court in l.S4(), was still I'urther enlarged hy the Act of Lsni. IJy sec. 14 of tiie Act of l'S(il, the Court was made a Court of Record, whidi status the Courts of Common Law had previouslv refused to recoir- dze. And in The Pi ere I tenore. L. K. P. C. is: Sit- !, it was held as the latter Act was intended to remedy ii griivance hy amplifying the jurisdiction, it ought to 1)0 construed liberally so as to afford the utmost relief which the fair meaning of its language will allow. JOnlarged jurisdiction was given to Vice- Admiralty Courts by the Act of 1^63, and the .same rule of construction will apply to that Act. The latter Act has been repealed by the Colonial Courts of Admiralty Act, 1890, 53 & 54 Vict., c, 27, and this has been adopted and acted on in Canada by the Adnuralty Act, 1891, 54 & 55 Vict., c. 29, so that the laws relating to the jurisdiction of the High Court of Admiralty in England, including the Im- perial Statute, 24 Vict., c. 10, arc now in force in Canada, with a few immaterial exceptions. 66 VIClvAD.MIIiAI/rV 1(KP()UT8 ISSI' Nov. 29. TIIK Al{KLO\V(l). — I'm:. C'dlliiiiou — Sdiliii;/ Itiileo — Li, (i. (;., for rosiioiideiit^ Watt MILS, J , -J., siininiino- up to tl le nan tieal assessors. UKl Coilisions iiiav oi-eiir without hUmie hoiiii;' iiiiptitahle to either l»arty, as l)y a storm, or any other n's iifijur, in whieh ease the misfortune mnst he home hy the party upon wiioni it hapi>ens to fall, tlie other not lieino- responsihle. The misfortune may arise where hoth parties are toldaiue, where there has heen a want of due care, diliiivnee and skill on hoth sides; in sueh a case the rule is that the loss must In- apportioned between them ; or, it nuiy ha]»i)en hy the mis- eou(hict of the sutt'erino; partv onlv, in whieh ease he must hear his own burden; or, it may have been the fault of the ship eom[ilained of, when the injured [nivty would be entitled to an entire eomi>ensation from the other. In eases of eoUision, the law recpiires that there should be preponderatinii' evidence lO fix the loss on the party charoed, l)efore the C'ourt can adjudge him to mtike compensation. (1) In tliis case the respondent asserted an appeal to the Privy CouncH, and the judgment was reversed. 9 App. Cas. 136. See next case for Jmlu'- nient on appeal. The pronioN- on the |»art i Imu'ii ginltN ( III til's cas cliarges that on a voyao-f red and yrei licjng oil a st one-(|iiarter I ><'r\ed the re steering in a within one-(p nf collision, s no iiotict', but i';iN into the which the I! iiliandoned as riie defein'i exiiibited no ] flic l>unin wa ""I the Arklo\ Atklow was itiiout l.:{() a. I iliirk object a I'lit could not iiid of glasses II" lights, and tlic \-esseb wb; tlie sounding l»(>:ird of her. 'mu that the l'> "idered the he 'l"\vii. which I *'t"ly the Jbin "iiiu immedii OF \K\v r.urxswicK. •;7 Tlic proiiiovciit ()!• |tliiiiititr iim>t in-ovf not only iii-nTniriui- ^^^'^ iHK'iit, Itut fliiit he liiiiist'It' lias not •^'„^; Im'cii ,irnilt_\ ot'iiny iU't w licrt-lty the "liiinatiH' liii-^ Kt'cu causi-il. Auki,ow. Ill til's case, tlu- l»ai'()tli Mardi, ISSI, on a voyauv tVoni Ilavrt' to Ualtiinon-,, at '2 a.m., Iniviny" liri- led and uTi'cn liiilits, jii-opcrly tittt'd and In'iiclitl.v l>nrninLi', liciiiii' on ii starlioartl tack, dose hanU'd, strcrinii' sontli-wcst uiu'-(|iiarti'i' halt west, tlu' wind ahout north-wi-st, she olt- scrvfd till' rt-'d liii'ht ot'tlu' ltaP([iU' Arklow on her iiopt tack, stcci'inn' in an easterly direction, niiiniiii;' t'i\'e; that when within one-<|r.artei' of a mile of the Arklow, secinu' danu'er iif collision, she sounded a hell, of which the Arklow took no notice, hut that the ,\i'klow continiu'd on iier course, and ran into the Hunin, striking' her on th<' stai-hoard side, hy wliieh the Hiinin was so much damai^i'd that she \\"as iiliandoned as unseaworthy in two days after. The defem-e on the part of tlu' A.rklow is that the Ihiniii cxhihited no liu'ht; tliat the niylit was dark, and that when till' liunin was tirst si<>,-hted it was im[iossil»le for the watch III! the Arkh)W to discern how she was hei'.tlinu'. That the Arklow was steeriny' \\. hy S., with wind uhout X. That aliout I.^IO a. m., it heiui;' the mate's watcli, he ohserved a ilatk ohject u [>oint ami u half on the weather or ]iort l»ow, litit could not maki' out how it was headiiiii'. 'i'hat hy the aid of ii'lasses he made it o\it to he a vessel, hut he could see nil liii'hts, and he concludeuniii, approached until the soundiny" of a hell and slioutin<;' could he heard on l«i;u-d of her. The mate says he then called tlie ca[itain, Imt that the Huuin was hearing' down u[ton them when he nidered the helm to he put hard a port and aft sails hauled •liiwii. which he >ays was (h)iu' : hut that almost immedi- atrly the Bunin struck the Arklow acros-; the port how, I'arrvinii' awav evervthiiiu' forward. The jiarties differ materially on the most imiiortant ques- tion, namelv, that of the li<>'lits. Thev tli ol" tlii'si' ships arc hoiiiid, arc clear and c.\- [•llcit on the siihjcct hoth of li,u;hts and stccrinu'. The lol- lowinif arc the ri'i;Mdalions as to linhts, Article ■], sections /, am 1 '/ {f>) ( hi tlic stiiihouid side, a ^mccii ii;,dil so const riu'tctj as lo show ua uait'orm and unhrokcn liulit over an arc of tlu! Iiori/oii of ten points of the compass, so fixed as to tliinw tiu' li^dil fnnii right aluad to two points alad't the hcani on the ,»tarho'.ir(l side, ami of sach a cliaractcr as to he visil)lc cai a dark iii:;lit, with a clear atnu)splicre, al a distance of at least two iniles. ('•) On the poll side, a red lij^ht, so constnicteil as to show an iiniforni and iiniirokon li^dit ovor an arcot'tlx; hori/on ol' ten points of the c(an|)ass, ho fixed as to throw the light from right aliead to two points ahaft, the heaiii on the port side, and of such a character as to he visible on a dark night, 'Vitli a clear atniosphero, at a dis- tance of at least two miles. {(I) The snltl green and red side lights shall Ite fitted with iii- hoard screens projecting at least three feet forward from the light, so as to prevent these lights from heing seen across the how. The steeriiie; and sailing riilos up[ lical'le to this case are Articles 14 ami 22: AiiT. 14. When two sailing ships are approaching one another, so as to involve risk of collision, one of them shall keep out of tiie way of the other, as follows, viz. : ((() A ship which is running free shall keep out of the way of a ship which is closedniulcd. (I)) A shij) which is close-hauled on the port tack shall keep out of the way of a shi[) which is closediauled on the starboard tack. (f) When both are ruiininj.' free, with the wind on different sides, the .ship which has the wind en the port side shall keep out of the way of the other. ((/) When both are running free, with the wind on the same side, the ship which is to windward shall keep out of the way of the ship which i.s to leeward. Art. 22. Where, hy the above rules, one of two ships 's to keep out of the way, the other shall keep her course. Ah to tilt the litiiiiii ( he fiiirly vif Oil the pj steward, an rea>'i flif r»iiiiiii carric)! tlu' rnlori'd !iu;litH tixi'tl so that tln'V ('(1111(1 he i'aii'lv \isihl(' to the Arlt(\var(l, and iinh-cd all the crew, whose iitHdavits have heeii read, s\V(»re |iositively that these liirhts were hriijhtly hiini- imr and in i>ro|ier position. On the other side, the eajitain, mate, and his watch (»n the Arklow, positively deny haviiiLT seen any siieh liifhts. (Uead atlidavit of mate of Afklow.) In a ease of this kind, when the evidence is eontlictint; and nicely halaiiccil, a Coiiit will he irnided hy the proh- ahilities of the respective cases, and a presumption would hu that the master of a vessel would do that which is eiii(tined upon him l»y the reiriilations, and that he would follow the r'.'U'ular and correct course of naviu;ation (1). liotli sides a^i^rec that the niirht, alth(»uii'h dark, was clear and the sea smooth, and that a liu'ht could he seen a c(»ii- siderahle distance. ^'ou will li-ive me your o]tinion whether the Uuiiin had or had not omitted the necessar duty of havin*; her liifhts so placed that they could he tiiiily visihle, and if you are ot opinion that she had not omitted that necessary duty. I ask you to say whether the Arklow, siipposiiiii; she had kept an ett'ective and good lookout, ought not to have seen these lights? Xext : If you should l)o of opinion that no ]troper lights Avero exhihited hy the liiinin, 1 will ask you whether the ahsenee of such lights eoutril'uted to the collision by ]»re- vcntinu; the Arklow from deserving the Bunin at an earlier leriod, and did it thus eontrihute to the collision V In other words, if the Bunin's lights had been i»roi»erly exhihited, tlierebv tfiving warninii' to the Arklow of the course of th»3 r>uiiin, and enabling tlie Arklow to take measures by which the collision would [»robubly have been avoided ? As it is settled law in these eases, that the omission to exhibit proper lights can only be hekl immaterial when it clearly appears that the absence of such lights did not cause the collision, therefore, supposing that the Bunin did not (1) Lowndes on Coll. 87. 21". TlIK AUKI.dW. .'^^^l 70 MCH-ADMIRALTV UKl'ORTS 1882 liave lier liijlits jtrojici'lv visilde, could tl'e Arklow, l»y iiti Thk ttHricnt lo')l<(int, Imvc st'cii tlie linniii in aniiilo tiiuc so as to Arki.iiw. liave avoided the collision':' (Reads ovideiKf of" mate and others as to the distance at which they saw the Munin.) If the liunin was made out hy the Arklow as an approach- insj; vcssi'l at the distance ofone-iiuartorofa mile, I ask your <)]iinion whether the Arklow running; tree mii:;ht not have avoideroachinii( vessel his duty then hecamo imperative to ohey the regula- tions and promptly adopt the proper means to keep out of her way. 1 tlierefore ask vou had the / rklow, after she discovered that tlie Hunin was approaching her, time and opportunity to have avoided her? The Arklow having the wind free, and the Bunin heing on the starhoard tack, it was the duty ot the Arklow to have avoided her, providing she luid time and opportunity to do so (1), It is alleged h\ the Arklow that, immediatelv hefore the collision, the Bunin changed her course hy starhoarding her helm, and therehy caused the collision. 'I ask your opinion whether this took place ? It is evident these two vessels, when seen, were approach- ing *.'ach ofiier, and the question to he decided under the evidence and die Adn)iralty regulations is, a\ hich of the two ought to have kept the wind, and which ought to liave ifiven wav. Wattkrs, J., on returning from consultation with the n-mtical assessors: The ship-masters are of opinion that the fault lay wholly (1) Lowndes, 214. K OF NKW iuu::n\s\vick. 71 witli th'^ Arklow; tliiit notwitlistandiiig the evidonce i!-> ooii- riictiii«^ !!•> to whotlicr the liifhts of the Brr.nii were tiiirly vi-ihle to the Arklow, thev are of ojjinion that the Arklow, which was ruimiiii; tree, made out that the linniii was air apiiroachiui; vessel, on the starhoard taek, in anijde time to have taken means to have avoided her, hy givini^ way to the r.imin, whieh she was hound to do, hut that she kept on her course until the dan. Decree arrordingh/. 18H2 TlIK AfiKI.OW. 72 V rCK-ADM rU ALTY liElM UiTS ■—V—' Nov. -20, 21. [PKIVY corxciL.] EMKlv^' AND OTIIKHS, A 1'1'Kl.I.ANTS : AND CICTIKltO, 1{i.:?24,0()0 (lainau'i's tmd in costs. Tlie facts of the case appear in tlie jndirnient of tlieir h)rdsiii}is. 31>/l)ihresented on hehaif ot the Bnnin, the coni}»laininu; vessel helow, was tis follows: That on the 30th of March, 1881, as she was proceedintj on a vovaii:e from Havre to llaltiniore, at 2 o'clock in the nioni- ing, the weather heing dark hnt clear, and the wind from (1) See Ante, p. 66. Tliis case is reported in 9 App. Gas. 136. The decree appealed from was made by the Vice-Admiralty Court of New Brunswick. Noveml)er 2i), 1882, and not in 1S81, as erroneously stated in the report of the case on appeal. OV XKW BKrxswrc'K. ?:{ tlic iiortli-nost. sIr' was steerinii'a coiirso soiitli-west liv wi-st l^^-< halt west, ciosc hauled on the .starl>oar- proached under a starhoard helm, it is stated that her spanker jihed from port to starhoard — it is said, indeed, just hefore the collision. Xow, in the circiniistances alleged on the one side and on rlic other, it was undouhte,> AitKi.ow. nineli donbt l>y tlie conHict of evidence, tliat I am of oj.inion tliat tlie lii^lits of the Mnnin were not fairly visihle to the Arklow:"" and tht-n he i^oes on to deal witli the case U|p()ii that footini;. The pecnliar lan_iina<;e whicli is nsed l»y the learned /indye about their not heinii; fairly visihle, may pos- sildy have reference to the evidence which lias been ijivcii that a ifreen lii^ht was seen, not in its jtrojier jdace, hut movin_<; on the IJnnin, immediately l)efore the (collision. Tiieir lordslnjis a_u;ree in the view whieh was taken by rjic learned jndi^e below, upon tliis point, that the liii;hts of tlic Hunin were not in such a [)Osition as to be visible to those on board the Arklow, and that those on board the Bimin ai e responsible for that departure from the [»rretty plain were drawn by somebody with a view to the supi>osed facts of the case, and were then laid before the witnesses for the purpose of ifettinir their evidence, and leavini^ them as it were, to take exce[»tion to anythiuij: which they found in those statements. Thus, all the witnesses but one, on behalf of the liunin, say. in i:;eneral terms, that liijhts were liurning according; to the retrulation, but there is only one ot them who speaks to the fact of his having actually seen that the lights were burning at the time of the collision, and that is the witness Laz/arini, whose duty it appears to have been to light and trim the lam}>s, which he says he had done at S o'clock. He does, indeed, say that when he was called on deck h\ hearing that something wrong had hap]»ened he did sec that the lights were burning. On the other hand, the wit- nesses for the Arklow all aijree that there was no liiflit visible on the liuiun ; and they make that statement with certain particularity which imjircsses their lordships in favor of their statements as against the general statements, with ^lic exce|iti(»n n instance, it is ? liv tlie lookout who was \vith distance, the nii |ii)sc of exaniini wliii-h cannot b the mate smd tl stating that wh imicli further t tlicir duty. Tn who say that tl immediately bel had, either for t "tlier acci tiike one ma OF NKW IVKUXSWICK. 75 18S3 TnK •he (.'xcc'ptioii iiR'Mti(tMor of examining" it more carefnllv. That is a particnlarity which cannot he disreixardetatinini:" much further than a mere assertion that they were doinu" rlicir duty. Tn adsence 'Md not cause the collision. On this ]»art of the case their lordships are unahle to concur with the judgment of the learned judge liL'IdW. The principle in cases of tliis kind, where there has ln'cii a dei)arture from an im[>ortant rule of navigation, is this, that if the ahsence of due ohservance of the rule can hy any possihility have contrihuted to the accident, then that the party in default cannot he excused. On this point their lordshiiKS can entertain no douht that the ahsence of [irolter lights must have occasioned an entire change in the 'ourse of events which followed upon the ]hniin heing visiMe to the Arklow. Without those lights the statement made hy the witnesses on hoard the Arklow commends itself at once to credence that they did not know in what •lirection this vessel was going, and that it took an apjire- liahle time hefore a judgment could he formed upon that suhject, during the whole of which time it must have re- mained a matter of pure chance whether it would he right to take one nuinw was also to hhiiai.'. It lies on the Hnnin, wliieii 's shown to have heen in (letlmlr. to estahlish, to the satisfaction of the trihnnal that has tn 'letcnnine it, that the Arklow was in tault. Now, on tlii- ]>art of the ease it is to he ohsorved that the time which lui' to he dealt with is verv short. The vessels were apitroadi- inff at a speed which would hrin^ them toijetlier at the vnW of a mile in five minutes. Ivcfcrence has heen made to the marginal note upon tne e a distance of twelve hundi-ed yards. One of the witnesses for the Arklow sii\- that the l^uniii was seen about four minutes before the col- lision. It is obvious that these statements as to time ami distance cannot be dealt with as e.xact computations, Imt only indicate the ronu'li conjectures which the witnesses were able to make at the time. But it is obvious that sonu' space of time must have been occupied in fetchinu' tlh i^lasses, which would diminish the period of time witli which we arc dealinn'. Secondly, it is stated, and no reasdn to doubt it is suii'gested, that the helm of the Arklow IkhI been ported before the collision; that is to say, that a stcj' had been taken for the purpose of avoiding- the a[>proacliiiii: ossil) however, that th 1.) .Mr. I Tall are I'videiice on the that the Bunin '•oiuiug down u ir was apparent l!iiiiiii was takin that the helm of I'oiv, some time 1 tlu' starboarding I>ut, further tliii 'ollision of this ivuce of events i; it may well be t kTi'ed to by th lit'tore the coUis time of the colli.- till' head of the 1 ()ii till' v,-liole. lircii established iia> not l>een cs ami their lords Majesty that tlu iwersud, with c OF XKW lilirXSWICK. 77 mil er iiortiiii;: the lu'lni, as it is cK'Uf she had to soiiu' ex- H^J>-5 :ii!t (lone hef'oiv the collision. Aiiothei" point has heen discnsse' n w Tin: as not dealt Auki.kw. with in the Court l)elo\v, and that is whether or not the liiniin kept her course. IFer witnesses allci^'e tliat she did ki'cp her course. ( )n the [lart of the Arklow it is alK-u'cd tliut she came I'ound under a starhoard helm, and so came dnwn upon the Arklow. fn su[i[iort of tliis staiement it is iiII'.'^'imI tliat she jihi'd : and it has h-. i-n ar^'ued that credence iiiii'ht not to he li'iven to tliat statement hecause it is said till' Arklow had u'one otl onlv to tju' extent of hall' a |ioint. wjiile it is representi'il that the iJuni.. had u'ot round a liMvat iiuiiil)er of points — the exai't nuniher it is not necessary to ity, hut so as to lu'iiiu' her head pointinu' south hefore it Id lie i>ossihle that slu' would jihe. It is to he ohserved, however, that the two periods of time tliat were referred to liv Mr. {fall ai'e not iirooerlx to he eoniDured, l)ecause the ILM \Vi)U I'vjilence on the part of the Arklow is that it was discoveivd ;it the IJunin wa^;, to use the exiiressiou of the witnesses. III 1' •iiiiiiuii- down upon them under a starhoard helm, and that it was ai>parently which showed the direction which the Itiiiiin was takinu', and it was then, after that had heen seen, iliiit the helm of the Arklow was porteih There was, tliore- t'liv, some time hetoro the portinu; of the helm durinn' which the starhoardiuii' of the helm of the l^unin had taken place. Hut, further than this, it is to l)e ohserved that where a 'ollision of this kind occurs the exact succession or eon».ur- I'l'tUH' of events is not accuratelv noted hv the witncs ses, anc 1 it may well he that the jihinu; of the spanker, which is re- t'lTred to hy the witnesses as takini^ place immediately Vthre the collision, may in fact have taken place at the time of the collision, and in conseiiuence of the collision hy tik' head of the IJunin heinu' driven shai'ply round. On till- whole, their lordslii[)s are of o[(inioii that it has iKcii cstahlisluMl that the liunin was t(j l»lame, and that it iia> not heen estahlished that the Arklow was to hlame : ;iuil their loi'dships will, therefore, humhly advise Ilcr Majesty that the decision of the Court helow should he ivversi'd, with costs. ii 78 VI('lvAl».MIIiAl/rV .{KI'OUTS t ;;!;!(■ »• ^.-n ISn:! In The Fauu'i M. Curvell, i:) Akki.uw. that by the true {'oiistriiction of the Meirhaiit Shippiriij; Act, 187-'^, .-i. 17, a Briti!y any possibility have contributed to the coilL-ion. Where, therefore, a vessel in- ninged Art. )> of the sailing reg- ulations i)y carrying her .- ide- lights v/ith screens shorter than the length prescribed, but it was proved that such breach couid not possibly '^nve contributed to the collision, it was held that the ship so infringing could no* be deemed ti be in fault. In a late case it was proved that the lights carried by one of the ves- .•icl.s were so fixed as to be partial- ly obscured, and that there was therefore an infrin at the time mn that all the [lar the place when iiio\c:it was (li; i v;.: OF NKW IJiaXSW'K'K. 70 TIIK .TOXATIIAX WKIIJ. ]\'aijes — Jiirlmliriiitii — .\iiti)\iut clninird. Tlie iiiiistcr of !i vessel registered in Caiiiida, I'eing silso a part owner, was tlis- cliarged at the iionie port, wiiere tlie other owners also resided, lie caused the vessel to he arresteil in a eanse of suhtraction of wages foi ;0. The vessel was tV"<-)auurotest that the ]U'oniovent, iR'fore suit l)rouo;ht, had made no demand for payment; that the owners were not insolvent: that the vessel was not ;it tin- time under arrest in any other cause in the Court: that all the parties in interest resided within twenty miles of tlic place where promoveiit was discharired, and tlmt pro- iiiuvcnt was dischariivd at the home port of tlu' said shiji. (,'. W. Well/on, (^. (.'., in support of the act on protest to flif iuris(licti(»n, submitted that the oidy ipiestion for deter- iiiiiiatiou is whether an action can he maintaiui'(l tor the iv.overv of wau'es where the amount claimed is under 8200. The Merchant Shiintinir .\i-t, ls.')4, sec. 180, limits the riy-ht to toO: the Canadian Act, iHTo, e. 120, sec. oO, to 8200. lie further cited the tuii;- h'o/ih (1); the Admiralty Act, l^'i] : the A'ice-Admiralty Act, 1S&-1; lhir,:!, \-lA\ '/'/>< Fn-r,i (:}); 77-, Fn-nin'ii (4): '/7'< T//// n/ J/n/>;/r (:)). T\\v A(hnirahy Art. iSCd, was a \il'(ual repeal ol' see, 1S!I of the Ael of \X')\. The N'iee-Admii'alty Coiu't, from ls.")4 to InC,:!, had \u<\ jiu'isdiction to entertain a suit nmh'r toO, lait the \'itT- Admirahv Act, iMl-'), i'e|H'ah'd that limitation, St'e /i /•'///•/' V. Viiiiiilidii (It). The Parliament (d" Canada eai al<(i nidi re|i»al an Impei'ial statnte.and therefore the \'iee-Admiralty Act, is*;:}, is not modified h_v see. .")(; ol the Canadian Art of l.s?:'.. ITrA/o//, (^. C.. in re[ily. The Donnnion I'arlianu'iil lia> authority to modify the tei'ins of tiie lni|K'rial .Vets of ls,',4 and l(S»lo so far as proeeedinirs au'ainst Canadian shipimiLi' are eoneerned. The Acts of 1S,')4 and ISO.-) are not re|mi:- nant. The latter Aet does not impliedly repeal see, IS!) of the Aet of 1H')4. As to proniovent heini:; a [lart owner, llir (.'onrt cannot imjiort any exception into the Imperial statute. W'attkks, J, Held that see, .">(; of e, Vl{^ of the Canadian Aet of l.Sl;} was eonelusive of the case tliat the Court had no jurisdiction : lie sustained the act on protest, an.d dis- misseil the suit with oosts, Ol'lli I'l ll ill-COi'(/(IHjlj/. A doubt has hcL'ii expressed in sunie (|iiarterri as to the juris- diction of the Admiralty Court in Canadn to entertain a suit for seamen's wages where the amount claimed is under S"JO(). IJy the terms of tiie Merchant >Shi|)- (1) .-) L. T. N.S. -JIO. (•2) Cook ;!•_'(). "") S Aj>ii. (.as. :;-J'.). pinuj Act, 18.34, 17 it 18 Vict., c. 104, sec. 18U, the right to sue in the High Court of Admiralty in England was limited to claims of UoO.and ui)\var(ls. No suit, un- der that Act, could be instituted in the English High Court for any (4) L. li.'2 \d.Si E. (!•"). (5) L. K. 4 AdS: E. I'Jl. (C.) 2-2 N. B. •2.-)>!. OF NKW HKINSWICK. 81 claim for wages under toO, "un- less the owner of the ship is lul- jiidged hjuikrupt, or deehired insolvent, or unk'ss the ship is under arrest or is sold by the iiiithority of any such ('ourt as aforesaid, or uidess any justice, actinj^ under the authority of this Act, refer the case to he ad- judged by such Court, or unless neither the owner nor master is or resides within twenty miles of tlio place where the scanum or apprentice is discharged or put a.^hore." By the Admiralty Court Act, 1861, 24 Vic, c. 10, the High Court of Admiralty, under sec. 10, "shall have jurisdiction over any claim by a seaman of any ship for wages earned by him on board the ship," whether the wages are earned under a special contract or otherwise, >ul)ject however to the proviso that if the plaintiffdo not receive laO, he shall not be entitled to any costs unless the Judge shall certifv that the case was a fit one to be tried in the said Court. The question then arises as to the effect of the Act of 1861. Has it by implication or neces- sary inference repealed section \m (H the Act of 18o4? The opinion of the learned editors of Williams and Bruce on Admir- alty Practice is that it has re- liealed section 189. At p. 202 (((1. 1886) it is stated: "The Court has now jurisdiction over •A claim for wages, whatever may be its amount, but in order to F discourage the institution in the HH.S Court of suits for trivial amounts, .p^'J^, it was provided by the 10th sec- .jovvTUAy tion of the Admiralty Court Act, Wkik. 1H()1, that if the plaintiff in any such cause did not recover .t.lO, he should not be entitled to any cost*, charges or expenses in- curred by him therein, unless the jutlge should certify that the cause was a fit one to be tried in the Court. This section is, how- ever, now impliedly repealed, and the costs of an action are in the discretion of the Court." In a note on p. 203 of the same work it reads : " It is conceived that this section, by giving the Court jurisdiction over any claim for wages, etc., impliedly repealed the 18!Uh section of the Mer- chant Shipping Act, 1H.')4, so far as it restricted the jurisdiction of the Admiralty Court." The effect, however, became unim- portant, as " owing to the oper- ation of the County Court Ad- miralty Jurisdiction Act, 186H, it is no longer necessary to con- sider what the effect of the 189th section of the Merchant Shipping Act, 1854, had on the jurisdic- tion of the Admiralty Court." In a note to Roscoe's Ad, Prac. (ed. 1878), p. 86, it is said: "A suit for wages under IMO cannot be nuiintained in the Vice-Ad- miralty Court by sec. 189 of 17 & 18 Vic, c 104; but the Act of 1863 contains no such limita- tion." The h'Mguage of the Act of 1861, sec. 10, is sufficiently H-2 VICK-ADMlUAI/rV liKI'nliT.s 1888 coinprt'lifiiMivi' to iiicliidc "all 'Y^^^, cliiiiiis" for scaiiicirs waives, the JoNAxrivN <'l>jt'»'t ">' the Act was to I'XU'iid Went. the jurisdictioii of llic Court, and it inuiiit'cstly opcratoHnH u repeal ofHCe. IMllofthe A«'t of IX'y^. Tlie ea.ie."* of (faniett v. linid- ley, :\ A pp. Ca.-. 5)44. ( 1H7M); and Tnnitdit v. /<;//m, ♦> (^ W. I). 4«), ( lHM()),:irc cited in ^Vi|. liuins tt Mr., in support of the contention that sec. 10 of the Act of l'*^t!l has also Ixcn re- pealed so far as the ijuestion of costs is concerned. Both cases arc important in showing:' how a 8ulwe(|uent Act may l»y impli- cation repeal a prior enactment. The ca.se of (iiir)ieU v. Jlmdlnj nnwc out o' in action of slander, and under the Statute 21,. las. I, c. 1(), s. (!, where the plaintiH" does not, in an action of slamler, recover more than 40 sliillinj^s damages, he shall not get any gnater amount of costs than the venlict for danuiges. The Judi- cature Act of 187'') authorises the Court to make rules, having the force of law, and in ])ursuance of that auth(>rity, Order ")0 wa.s pa.«sed, which, inter alia, declares that "the co.sts of and incident to all proceeding.s in the High Court shall be in the discretion of the Court," subject, however, to the provisions of the Act, and that "costs shall follow the event," unless the Judge shall otherwise order. In this (,'ase the judge did not otherwise or- der, and it was held that the Statute of Jamo,-* was by impll- cation ri'pealed, and that plain- tiff was entitled to his costs. 'In the same eflect is the case u|' Ti'iiHiiiil V. AV/m, (i il B. 1). Id, ( IMMO). Lord Westi.ury in the Westminister I'lsfafe.A'*-., 4 I)e(;. .1. tV' S., p. •.'4'J. states the law of repeal by necessary implicM- tion thus: " It' the parlicniiu' Act itself gives a complete rule on the subject, the expression uf that rule would amount to :iii exception of tlie suiijcct matter of the rule." A case came lic- fore Dr. liUshington in .March, I'Hdl. Thr ll."., s. c, .") L. T. N.S. 210, ill whiel, it was held that "the lS!)th sir- tioii of the .Merchant Shippiii- .\ct, 1S.')4, bars a seaman iVoin recovering wages less than L'"in in the Court of Admiraliy, t\- ct'pt in tlu! contingencit - tin rein speciiied." It nmsl be noteil thai Tlie Ilnrrie.if was decideil on March IX, \m\, while the Ad- miraltv Court Act, b^fil, was not passed till ]\[ay 17, l-'^il, and did not come into force till .June 1, 1M()1. Dr. Lushington, in de- livering jmlgment against the seanum's claim, on the ground that it did not amount to I'in, .said: "I am happy to say that an Act ( 24 Vict. c. 10 ) is now |)a.ssing through the legislaturi', which will remedy the defect in the jurisdiction of the Court, which in the present case li:i- operated with such hardshij) "W the plaintirtV The Havridl. ■> OK NKW IMMNSWICK. .S3 L. T. N.S. iitp. '212. TliM is 11 clt'iu' iiitiiiiatioii oil tli(> j)iirt nt' till' Iciiriicd jii(l;r<' tliiit tilt' t'lf't'ci ni -J I Vict., «'. 10. would l)t' to iiiliir^c tln' Adminilty jiirisdic- tii'ii l)y removing,' tlic t.'")() limit ill ilien'c()V<'ry(»t'f««.'anu'M'f*\viij;('8; ir, in otluT Words, tliiit tlic .\vl ,,r \Ml has ri'|)ful('\ )«!» i,\' the Act ot' 1S.")4. No oilier c((ii- 'ti'iiclioii ciiii fairly be put on tlic laiiL'iia^'c of tlic learned judnc. The Vice-Admiralty Act. isM, \\u> passed .Iniie S of that year. [l> object was to extend the jiir'sdictioii of Vicc-Adniirally Cdiirts, and ainonji' other tliiiiLis jurisdiction tiir the recovery of "claims for seamen'-' wam's" was '.'ivcii without any limitation. 'flic case of the tliir Hohli, IT (')iii. li. .1. (»•!, was decided in the Maritime Court of (Jntario, ()c- telur (i, IS.'^O, in which it was liild "That the Merchant Ship- Court of \'ice-Admiraltv, or in iss; a I II K ly Superior Court of KecortI y in cither of sai Act, refer the case to he adjiid<:ed liy such Court, or uiiK'ss neither the owner nor the master is or n-sidcs within twenty miles of the place where the seiiiiiaii or apprentice is disi'liaru:('(| or put a>liore." This Act WHS re>erved for the signilication (d' Iler .Majesty, Mav '_'.'{. I>(7."), and such siunili- catio)i was sul)S(M ucnth niven, and th(! Act hi-came law, March •J7, 1«71. The case of T/if Mar- Act of l-'^.JT is not to be ijurdhn Slevrnxini, '1 .^tiiart, 1'.'2. <.'!, contrary It IS somew jilii; rind in connection with the Vice- Admiralty Act of 1SI];5. which l.S L'ives jurisdiction to the Mari- time Court of Ontario, and that tlurcforc this Court has juristlic- lioii over any claim for wages." .")(i The Canadian Act of IST.'}, .SG Vict., c. 1 2i>, sec. ."»(), now R. S. C, r. 71, sec. .Ot). provides : " No Miit or ])r()cccdiims for tlu* re- cDVery of wa^'es under the sum 'if two hundred d(dlars shall be iii>tituted by or on behalf of any >(;iniau or apprciitice belongini; ii> any ship registered in either iif the said p'-i^vinces in any Steveumn is as decided in (Quebec, June li to tl le decision in the case of Thr Hobh. This was prior to the passage of the Can- adian Act, ;]() Vict., c. 12!i. .sec. Imt importaiit al.s) to note that in the (Quebec ca.se the Vici'-Admiralty Act. I'St).'), is not even referred to in the argument of counsel, or the judgmeiitof the Court. The case, .«o far as appears from the report, was decided purely under s-ection 1S9 of the Act of l«o4. The head note to The Marf/aret/ut The Merchant M.' ?i; 84 VICK-ADMIKALTV liKrORTS 1X83 V The Jonathan Wnin. Shippiiiiij- A''t, lHo4, excludes tlie Admiralty jurisdiction in suits for wages of masters and seamen, where the amouitt due is less than CoO stg. The evidence in this case showing a less amount to he due, the claim of a master was dismissed without exception to tho jurisd'.ction pleaded." The learned judge of tht Quehec Court, in support of his decision, cites the case of The Harriett, ■mpra, which, as already pointed nut, was decided ])rior to the ])a.«sing of the Admiralty Act, IHGl, Before the passing of the Act of 1M61 , it was never douhted biit that the effect of sec. 1H9, of the Act of 18.14, was to withdraw from tlic juri.sdictioii of the Court claims for wages less than €")0. A later case decided in the (Quebec Court, The Royal, Cook, ;^29 (1883) follows the judgment in The Marijayeiha Stevenson. The Act establishing the Mari- time Court of ( )ntario was passed by the Parliament of Canada, ApJl 28, 1877, aid conferred on the Court "ail sucii Jurisdic- tion as belongs, in similar mat- ters within reach of its process, to any existing liriiish V'ice- Admiralty Court." It would therefore possess all the juris- diction given to a Vice-Admi- ralty Court under tlie Act o*' 18H3, without the limitation iMi- jH'scd by the Canadian Act of 1873, now K.S. ('., c. 74, sec. 5(). Tile Admiralty Act, 18M1, en- larged the jurisdiction of tlie High Court in claims for m'u- men's wages ; and the Vice-Atl- miralty Court Act, 1863, t> :;* of Vice-Admiralty Courts for simi- lar claims, but the Canadian Ad of 1873, c. 129, sec. 56, re- imposed the limitation as to wages by excluding jurisdiction for claims under S200. The Act of 1873 only applied to the Vice- Admiralty Courts of Quehoc, Nova Scotia, New Brunswifk, and Hritish CoUnnbia, but hy ji subse-nient Act, 37 Vict., c. 'J7, its provisions were extended to the Vice-Admiralty Court of Prince ICdward Island. For the recovery of wages the Viie- Admiralty Courts in Canaila, after 1873, had not the right to entertain a claim under $200. In this respect the jurisdiction was more restricted than in the High Court in England. Rut it is not necessary now to dwell upon the differences in jurif- diction between the High C<»uii of Admiralty and the Cana- dian Vice-Admiralty Cour*': in respect of claims for waircs as, since the passing of tlif Colonial Courts of Admiralty Act, 1890, r)3-o4 Vict., e. 27, Colonial Admiralty Courts, coming under that statute, are clothed with the same juriHiii.- tion as the High Court in V.ws- land, saving a few immaterial exceptions. The Imperial Stat- ute of 1890 has been adopter the recovery ''xtemled to the *<•<•. 10 of the A ri tiic decision of The Jtobb, that sec. 18!) of the Act of 1«.')4 is repealed, and that the Court has authority to entertain a suit for any claim for wages. It \<, therefoi-e, submitted that no limitation at present exists in Canada, l)ut that the Court has juris on ac- count of the ship, and under sec. H^l 3o of the san)e Act, he can pro- j^^, ceed either in rem or in person- j,,s.Krn\s ton. But the Court will not give Wkir. costs to a master who has not, before bringing his suit, rendereil accounts to his owners. The Flenr pledge the shipowner's credit. Tiie bistlef/ate ( 189:] ) A. C. :J8. The release by the nuister of his personal claim against the ship- , canic into collision on the river St. John, near 5\virt Point, and the Victor wsis smd<. The (leneral was |»rocccd- inir njt the river, and the A'it'tor coniin*;^ down. Contrary ti> the sailinsj^ rciridation, the (lieneral kept to the westerly or ]M^rt side of the river iijoino; up, while the Victor tailed to exhibit any white liifht at the nnisthead. As hoth vessels liad tailed to conii>ly with the reo^nlations, both were jtro- nounccd in fault, and one-half the damaifes sustained, wifli CO: its, were awanled to the owners of the A'ictor. C. \y. Wil'lon, (i. (\, for proniovent, the \'ictor, citcil Marsden on C^oll. (ed. 1880), 14»;, 173, 177, 182. T/,c l{l.o,Jr K/,o/!r, (:])■. Tin Vildiifi/ (4); 7'Ar Lojun'Ht/ (;V); y'Ac B(n«i(iiiirillr (t!): Tin J[(i(/iiif, 'Jilt Dull' of Sotln'rl'iiif/, Till' Fmuiii M. f'lrnll (7). The infringement of sailing rule on part of tiie (ieiu'ial was such as by [tossibility niiglit have contributed to the ilCCK lent. 1 )om. Stat. 1880, c. 20, .soc. «) ; also Art. 1 0, sec, Tin Baiair^ (8). ('. X. SI, \iinii I' (1)8 A pp. Cas. .")4l). (2 1 L. K. HQ. H. 7-J9. (oi Ti Ai>p. Cas. sTO. (41 L. K. ;U^C, 41. (), C, for respondent. Xeither jmrty (')| 7 A pp. Cas. r»12. (»i) L. H. .5 1'. C. :J10. (7) L. K. 4 A.&E, 417. (H) 9r. D. hi. • ■liargcd acci( fi.-ii~. proniov Tin licntivts ( ;i- ships were 1^7:))!»0o. 7 cvitable ueith l'1 (»nly obliga sued bv \'icto l»y jironiovent Tlie absence o n.is sio;hted a; uitnt of propi Wihlun, q. :i ships were not erossiiiir. Kofers to Kaye on Shij*. (ed. IsT")) !*0.'). yin f'li/iirriiir III' Barir (2). "When accident in- (vitahle neither partv can recover. 'Jlie Fmhoiii (;J). Art. lil oidv ol)li_<:;atorv wlien passiiii^ another ship. Course piir- siu'fl l»v Victor hrous'ht ahon.t collision. Refers to cases cited liv proniovent : also cites The KiKjIislniKiii (4) ; Tin Ki-^tni ( '>). The absence of the liifht on \'ictor caused the accident. She was sii^iited as a sailiny; N'es.sol, and deceive going down; the wiiul was southerly, and the tide nearly high, with a two-knot current. It was raining, hut it was not a bad night for running — not a dark night-- "iily a little thick with the rain. The tugs had both left liidiantown that night: the \'ictor had towed a schooner ny to Millidgeville, on the Kennebeccasis, and wa.s returning when she met with the (Ieneral. I must tirst ascertain, as well as I am able, from the evi- •Itiice, the position and courses of these vessels prior to and n !t P. I). It). 2 -J Hag. i:)4. I.; L. K. ;'. r.c. 'Jii (4) 3 1*. D. 18. (o) L. K. 4 V. C. .'.20. (11) L. K. .". P. c. :;it;. HH VICK-AD>f'\'ALTV UEl'OliTS 1384 TriK Okxi:i!.\i.. itt the tinif oftlif collision, and then apply the rules enjoiiuij liy Ifiw with i'eu;ar(l to vessels in the situation in which I uiuy lind these, and thns see how tar one or hoth eoini»lied with or violated these rnles, and eansi'd the dannige complained ot'. First, as to the N'ictor. — After passintr lioar's Head, the N'ictor kept a reasonahlo distance from Uivers" l)reakwater. then starhoarded her wheel and laid her conrse tor Swit'r Point. She first saw the white head-liirht of the (ieiiem! lielow Swift Point; next she saw the y:reen liifht of the (Jeii- eral over her starboard bow; this conr.se of the \'ii'tor would show her u'recJi liirht to a vessel roundinij: Swift Point: so also by followins^ this course (which the \'ictor ke[)t until the collision) the _iJ!;reen liu^ht of a vessel roundint; Swift ]\)int, and close inshore as the (leneral was, would be vis- ible to the \'ict(M\ This course the X'ictoi- followed until she reached a jioint alxuit nine hundred feet from Swit't Point, and about seven hundred feet from the westerly shore of the river, and had she not then and there met with the accident she would have passed within a sjiort distance ot' Swift Point. This F find to have been the course followed by the X'ictor, and that she was pursuiny; the regular course for Swifr Point, under a starboard helm. What w:ir' the course and i)Osition of tlie General":' She was runninii: up river for Swift Point. As she opened the point she saw over her port bow the green light of tln' \'ictor, not knowing, however, tliat it was the light of a steamer, as no mastliead white light could be seen. After rounding Switt Point, at a distance from it of tv.o hundred feet or K'ss, she ki'jtt on her course for a short time, and witiiin a very short distance of tlie place where the accident occnrre-ht on the \'ictor, hv reason of which the (len- oral was deceived as to her heinir a "steamer." On the part ot the \'ictor it is t-harijed in the lihel " at th )11 le eoMision occurred solelv tln'oui;h the inattention or want of skill of the jjersons on hoard the General," and it is further i-on- tciided hy the counsel for the N'ictor, that the collision was occasioned hy the non-ohservance hy the (Jeneral of Article '21 of the lieujulations, and hv her iiursniiiif a wronii' <'<»urse up the river. Let us examine the charije aijainst the detendant, the to the moment the ca})tain of tlic (icneral discovered that the approachinu; vessel Avas n steamer, the vessels were running u-reen liti'ht to tjreen liulit, the tui^s heini; at the same time very near to each other, it is evident to my mind that the Ctoneral, l)y shiftins^ her helm to port, immediately hefore tiie ccdlision, executed an im- proper movement, inasmuch as it hrouii^ht his vessel into imminent dani;:er, whereas, had he continued his course, it is more than itrohahle that the tui^s woidd have jiassed and i:;one clear of each other. Again, the (Jeneral, havini; seen the grei'U lisi;ht of a vessel ahead, and heini; in doubt as to the character and course ot that vessel, should have lessened her speed and ]>roceeded with i-aution until she hud ascer- tained that fact. Next, was the N'ietor to hlame in whole or in part for the collision? It is admitted and proved that she ioti Would m of the N'ictor in his j»ower, tlieless lie cIk rcsidting froii sion on the pi t'ontriluited to lU'e accu.-tonn rc(|uiring the lying on the ^ livei- as best s Now, whilst s( tain must be lirecaution, ai ithiise. ('poll Vessels Were t( partly by the ( iiead white li-; tlic (leneral ai lu'gulations, a damage sustai fliese damagei tifteen liundrei In cases of I'oth .ship.s are tlic j>arty proce recover a moiety and in the event or counter claim dividMJ, each p lialf iiis own lo.s.« -nd ed.), 86. Aurora, Lush. ^> Hajr. 329 n. ; Marsden's Ad. (. OF XKW UlirXSWlCK. <♦! tlu' (u'tuTal iKTsistiiij; in licr i-onrst'on tliat side t»t' tlu' river, IJ^^^ a- ill Jill jtrolniliilitv had that light hei'ii t'xliihiti'd the colli- 'p,,^. sioM \V(»iil7.')). £> Urnv Oci-dfi /int/li/. In eases of eollision, where lioth ships are found in fault, the party proceeding can inly recover a moiety of his damages; anil in the event of a cross-action or counter claim the damages are ilivid^d, each party recovering half nis own loss. W. & liruce •Jiid ed.), 86. See also The Aurora, Lush. 327; The Celt, o Hag. 329 u.; The OmUmi, Marsden's Ad. Cases, 3')7. For early ca.«es, wliere the rule as to division of damages was applied, see Mai"sden's Ad. Cases, from p. 235 to p. 339. Tliis is the rule, although greater fault at- taches to one ship than the otlicr. The Peleri>fiehl and Th>' Judith Randolph, ihid 332. The same rule of indenuiity ohtaiiis in the United States. In Meyei's Ind- eral Decisiims, voh 23, p. 1117. it is said: "The authorities con- 92 vicK-ADMiKAr/rv uiiiMMrrs TlIK ro» 11' .: .' li. hility ri' :■. But when i. i Mulieially the Courts regan; the p.^ '^Migs, and the Kntflish Conrts are \'rv strict in holding the parties to their allegations, and in refusing reliel" unless it is sought in a direct mode. If oidy one party sues, and the other merely de- fends the suit, and upon the proofs that both parties are in fault, the Court declares the fact in the decree, and decrees to the lihellant one-half of the damage sustained by him — the damage sustained by the respondent not beinj g regarded as the !>ul)ject th of investJjiation detc rminahle in le that suit. This technical result of the form of proceeding and pleadings, in which the respond- ent suHers himself t is an a\ kward way of arriving at the result contemplated by the law. It may have its con- veniences in some ca.ses, as wlun the iiniocent owners of cargo arc the libellants, for they are nnt responsii)le for any part of the loss, liut a.s between shipowner- themselves it involves an appa- ratus of two distinct suits to get at one result, when one suit, or two suits consolidated together, would be in every respect more convenient. The difficulty is ol»- viated in England, to a certain extent, where each party has brought suit, by directing, witii the assent of the })arties, that tin' proceedings shall be conducts 1 together so as to save the ex- pense of a double investigation." For American cases see Tin- J^ Am, ;} Otto. 302; The Alaham«. 2 ( )tto. ()!>.') ; The Wanala, 5 < )tt. >. 600 ; The North Sfar, 1 <> Otto. 1 7 : The Potomac, 15 Otto. 630. Prior to the Act of 1861 it was customary for the solicitor^ of the litigant parties, in cases nf cross actions, to agree that th' action is decide jtarties Hie libels, as they are decision in one case should guv- UF NKW HKl'NSWK'K. 08 • rn ill the otiior. This* ciuirse was optional with the solicitors, U' the Court had no power to coMipfcl such a eoiiixe. liut, hy wf • 84 of that Aet, the Ifiijh V rt of Admiralty, on the ap- |>ii ation of the defendant in any r; . se of damage, and on his in- >i 'H\u<: I. cntss action for the wunuige sustained hy him in re- s|)eLt of *he snukt collision, nuiy direct that both causes he heard tojrether, und on the same evi- dence. The same power can also ho exercised hy a Colonial ('ourt iif Admiralty. The defendant is not in jfeneral, after the first iiction is decided, precluded from instituting a cross action. The ('iilijpno, i^wix. 2S; but the prac- tice is not to be encouraged, and the Court will discountenance it i)y refusing co.sts. ruder rule ■J7, relating to Canadian Admir- alty Courts, a defendant appear- ing, having any set-oft' or counter claim, may indorse on his appear- ance a statement of such set-oft' or counterclaim, and the ruling asked for, and upon the trial of the cause, the set-oft' or counter claim can be freely dealt with by the Court. The judge, however, may direct a .separate action if he thinks it can be more con- veniently disposed of ill that way. Ill the ease of Chnpman v. The Jiuyal NetherlamU Steum Xitvi- :i"i, s'c. •")4, no set-off is allowed between the two amounts for which they are liable in damages, until the limitation of liability imposed by that sta- tute has been applied." Thi.s judgment revei-sed the decision of Jessel, M. R. The judgment, however, in the Court of Appeal was that of Baggallay and Cot ton, L. J J., and was dis.«*en'- from by Brett, L. .)., who agreed with the Master of the R(.lls. \s to the general principle aj •• cable in such cases, .Ies^eI, M.R., at p. IfJO, says: "When two ships come into collision, and both are in fault, one or the other can recover damages, and only one of the two, becausi the result of the action is that cither the plaintiff or the defendant is to win something. That is the meaning of it. The consetpience of tly .'ollision is that damage being done to one or both ves- sels, the owners of one vessel can recover something from the other. The Admiralty rule in such case is to take the amount of damage done to each ve.s.sel, to add them toge th er, amount, so and to halve the that iW' '1 each owner is Inter se to bear half, and then to !>4 ViCK-ADMIKAI/rV UKI'OUTS l>si asccrliiiii wlio is to pay tn tlu' Appeal in Thr Litnilon ,Sh TlIK (ttlHT, iinil tlif Mioiiitioii liiialiv Ointfru' Innnrniin; (' Th. (iK.MKAi.. i!*"*ll collision. Tl le iiKH le of arriving: lieiinr to l)lain«', tliev Iiave t' at the amount of damaiics is shan- the daniai^e eipially, tin r. what I have stated ; liy reason of i.s not a cross liahility on the piii t our very cnrions procedure, and of eai-li ves>el to pay half of tin very curious rules of law, it is an odd mode, hiit the suhstance i", in my opinion, what I have .-tated." The rule of law, as laid down hy the Court of Appeal, was not received with u'ciieial approiia- lion, and the ipieslioii was l>ronj,dlt hefore the House of Lords in TItr Sloomnnirl Mii(tl,-<- i'Iki}']'!/ Xi'ihr/niid v. Tlu! I'eiiin- .-nlar and Oriental Steam Navi- jfation Co. ( T/k Kind in ), 7 App. ("as. 7!l') (I.H,S2), when the ca.-i' of (.'mtjjiintii V. lioijul Xvlli(i'/iiiiil.-< Slaiin Xnrlf/iitioii Co., 4 I*. I). l.")7, was overiuled. The rule wa.s a;:aiu laid down in a still latrr ca-e in thi' Court of dama;:e sustained hy tlie otiiii. lint one liahility only, viz., the liahility ot' the vessel |e.liiiiql<,„. .') .lur. 17; 'I'/ir Slnniniiti, 1 \V. Uol.. 4(i;;; T/ir Eli-ithrtli .In,- /•///.>■, L. H. 1 p. C. .",()!; and thi.* rule iis to co.'.ts ohtains in tin Court of Appeal. Tlie Jlrrtur, -S 1'. D. 21. S; The J{if/I»>r'j< Minde, llml, VVl; W. tt Bruiv (•Jed.) SX. ( 'iilltHiiin — Li'ih OF XKW I'.IMNSWICK. 1)5 TIIK MIXNIK (;oin)(>X — MrlijioHNi: < iMiiiiiiii — Lii/hl-Kliiji — Iiifcilaltle Acciilinl — ( 'l>tll,^ — .V'»/ iitren iiiinlunl (.' riic vcssfl M. (i., nnilcr i-oininunil lA' a pilol, U!i>i ciitfiinif tin- Miriimiclii, and near tin- lloi-so Slior Mar, in llir lowfr pai'l of I'ay ilii \'in, rainc into citlli-iiiin with a IlKlit-Mliip tlicrt- placrd fur tlic salrty of iiaviKatioii. Ilild: — That iiikIit the fvidt-nrt' no fault was alliiinitahh' to th<' M, (i.; th:il it was a casi' nf incvitahlc a<'i'idt'Mt, and the suit was disniii-M'd, Imt wi(h- (jHt co^ts. as the (iiiwn was tin- jtruiMKVcnl, and no costs can hi- givi'ti ayainsi the < icnvn. Tills wiis ii riiiisc (»!' (•(illi>ii)ii |ir(iiii(itc(l liv tin- Attnnicv < (iii'i-iil (>r ("iiiiinlii. fciUH'M'litiiio; I Id- Majesty the <^>iH(ii. iio'aiiist the slii|i Miiiiiif < IoimIoh, Inf (hiuiiiot' douf to tlif lio'lit-shlp I latM'd Hear the llofsr Shoe Shoal in Mirainiclii Hay. Tlic pffliiiiiiiary act nt' tin' |ifiiiiio\ciit diafo'cd that ilir ai-fidciif t(t()k |ilai'<' on the al'tcrnoon of AiiLfi'sf ti, lHS-2: thai the wcatlii'f at the time was liiif and rlcaf; thiit tin' lidc was iMinniiio- ahout two inilfs an lionf: that the Ho-hi- -lii|i could do iiothino- to a\oid tin' (•olli>ion, as it was anclioivd: that the stai'hoaiMJ liow of tin- Minnie iK'r tiiiu' of ti(U' t(» hriiis; lu-r inside tlir oiittr liar. MiNMK aiiW saili'd ii)i with a h-adiiiir wind to thi- I'litranrc, \\ htii th»' wind wonhl not lu-nnit thi' vfKSi-l Kailiiiir ovtT thf lloisc Sho" Mar, and the pilot attcmpti'd to heat ov«'r, and after making two or thn-e hhort tacks in the narrow cliannel tin- vc'HHi'l wi'atJM'rt'd thi* li_ifht-shi|» on the pitrt ta«k, the wimj then Ix'in^ west south-west, hiit eoidd not weather the sontli- west point of till' har: that owinir to the variahle state i>\' the wind the vessel did not come around as ipjieklv as usual. She took a sti-rn hoard hetore she tell off on the starintard taek, which threw her close to the lii;ht-ship, ratlu-r to the north : a Haw wind tilled the sail, sin- forired alu'ad, and l«t?r starhoard how struck a liirht hlow on the lii^ht-ship's <|uarter. Captain I'richard was present as nautical assess(tr. A. ff. //(irrisnn and Sftplmi litunl, tor plaintitts. /''. K. Il»rbi\ il (\, and //. //. Mr I,,,,,,, for the vessel and owners. Watt Kits, .1., sunmit'd uj) to the nautical assessor as fol- 1()W! Tl le ([Uestion in this «'ase is whether this collision was an inevitahle accident. It wouhl not l)t' so if it were jios- sihle hv ordinary skill and caution to iuive av(»ided it. Was thert' any want of ordinarv skill and caution on the part (tf the pilot in tackinu: the Minnie (Jordon up to the point where the irust of wind struck her? Was such point inside, /. -.. to tlie north of thehuoN? Considerintf the state of the wind, tlie weatlK-r, the time of day, the time ot tide, and that no other vi'ssels were in the way, an«l that the Miuiie (lordon had an experienced pilot on hoard, can the collision l)e cdn- sidered an inevitahle accident? I sl;all take the opinion ct the nautical assessor who has attended the hearinsr, and liii> licard the evidence, whether all measures were taken which, diould luivc heen tiiken hv the lUK ler tl le circiimstanccf pilot to avoid the collision. And now (dune l/i, IHH')), the followiui^ judi^ment w:is delivered hy "Wattkus, d. Captain I'richard, hy wdiom I am assisted, is of ojiinion that, under the circumstances, no hlanu' can lie attacjied I iiiiiincj, jilt marked hv * iordon was ahove ihc li< weatln-r to tlic liudif-shi iiiidvini'' licr had ki-pl ste 'iiiirse Woul( '»t water (eiv ItMovs lor nil ni'shi'Is to nnviifiitf. niid tin- Miiiirn- Minnik (Inldoii Wiis not to liliiliic for lifiitillif riosf to tlif liliov lir.M ""iiiniN. ;il>o\»' ilif liLrlit-slii|i. 'riifi'f WHS iiotliiii'r in tin- sintf ol tlit- Wfiitlni' to (K'fcr tlif |>ilot tVoiii piissini; to windward of tlif rnrlit-slii|) iind ii|i|troinirm,ir dosi- to tlu' Imios, and finis iiiaUinii' luT ta<'k as lonij jis [lossihli', Moi'i-ovcr. if tin- w ind had kr\>\ stt-ailx , lie was saf».' in so doini;, and in ilic ordinarv luiirsi' would liav*' u-onc I'onnd all riulit, as tlitic was plfntv III water (t'iLrlit.i-n U'rt)al tlic Imiov; lait liaviny- arrived at tlif laioy, anti as lie was eominir in stavs. tlie ship nu't with ;i heavy i;nst of wind tnori' sontherlv. which killed her way and previMited her from eoniinu round, and caused her to take a stern l)oard ; this di'opped her down inside the huoy ami towards tin- liLcht-ship. 'I'his state (»f things suddenly liappt-nint; was wholly unexpected, ami causec ■ luent tiituhle. Tl I tl le suhse le pdol swe«r: that if the i,nist of wind had not stru<'l< her, the Miiniie (Jordon had plenty of room til LCo ahout and clear. Afterwards the assessor timls, that the pilot handled tlu- ship as well as it was possihie to do, and made the hest ellorts he eoidd to kei-p clear ol the liiiht- sliiji. [ concur with the opinion of the assessor, which is liorne out hy the evidence. This was, therefore, an unavoid- alile accident, and my decree is that the suit must hi* dis- missed .\s to C'ostH. If T should decree costs aijaiust tiie Crown, liayment could not he enfoi'ced. Xo douht ujion the Tuatter hi'iiiii' properly represented, the defendant's costs will he [laid hy the Crown. In cases of umivoidahle accident the Court •le exercises a discretionarv nower in t^rantini; costs. Li'hiIdii (1). Tn this ease the (.^ourt would, if the cause were hetween two suhjeets, dismiss the suit with costs, as it must liavi; heen evident t tiie officer in charge of the light-sliip that the collision wa> in unavoi(Ud)le one. Action clistiiissrtf. (1) Br. A Lush. 82. 08 VICK-ADMIliALTV KKrOUTS 1S85 The MiN.MK (jOitl)ON. An inevitnl)leucciion which occurs when both parties have endeavored by every means in thvir power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. — Union Stmmship Co. v. New York, etc., Steamsldp Co., 24 How. liOT; The Margaret, 2 Stuart 19; Th,' McLeoil, ibid 1 40, The defencf is never admitted except when the evidence shows that Jieitlur vessel was in fault. Ibid. Sic r'lo The Bidavier, 1 Spks. 37^ H. V. 2 W. Rob. 407; The Enropd, Ur. A Lush. 89 s. v. '1 Eng. \i.ifi, Kq. .")r)7 ; The Melhum, 5 N. ofCas. 4o0s. v. 8 W. K..1.. 21. In the case of The Jio/iim, 3 N. of Ca.s. 208, Dr. Lushingt-ii .says: "With regard to inevitable accident, the onus lies on those who bring a con.j.laint against a ves.sel, and who .seek to be in- demnitied. On them is the onus of proving that the blame does attach upon the vessel proceedtil against." See also The Vlrt/il, 2 W. Rob. 205. As to what i> inevitable accident, see also the ca.ses in Nova Scotia. The Chaxi\ Young Ad. Decisions 11)]; V'/i- liichmond, ibid 104. To support a plea of inevitable accident tin i)urden of proof rests upon tlif party pleading it, and he nui.-t show, before he can derive any benefit from it, that the damage was caused immediately by the irresistible force of the winds ami waves; that it was not piecedeil by any fault, act or omission uii his i)art as the principal or in- direct cau.se ; and that no etl!)it to counteract the inliueiice nt' the force was wanting. Tin Aijamemnon, Cook 00. Such ;i I'lea canno' be sustained by n ship sailing seven knots an Imiir in a fog over OF xp:w r.iii'xswic'K. 99 ill a fo}^ over fi.sliiiig j;rounre the vc'sel proccediMl aj^ainst had attonjpted to liring up in had wcathiT in an improper position, anu unprovided with proper ap- pliances tor (h)ing so. The Ida, ibid 27"). In the t-asc of The. Jfunfer ii\u\ The AtiiHi/'n Friend- ship, MarsdenV Ad. ('as. 322, Sir Thomas Saliishiiry held that the loss was merely aceidental, and therefore gave no (himages <(r costs on either side; so also in the case of The Three, liehi- iiom* and The Jlritannin, ibid 3")1, Sir James Marriott gave a .■iimilar judgment. In Tht: Mar- p,:«i.i, L. k! 4 W C. 212, it was held that where, in a cai^e of cnllision, th(! dt-fenee is inevit- ahle accident, the onus of jiroof lies, in the first instance, on those who bring the suit against the vt.-.-^cl, and seek to he inilemni- fied for dannige sustained ; and does not attach to the vessel pro- cieded against until ii prima facie nisc oi" negligence and want of di'e seamanship is shown. It is also laid down in the same ease, tiillcwing the decision in The London, Br. & Lush. S2, that it is a rule of the Admiralty Court, in cases of inevitalilc accident, tn nu;ke no order as to c(tsts unless it can he shown that tlir >iiit was hrought iinreasonahly mid without suHicicnt juimn jiirl, grounds. Sec also Thr '^'iinin.iea, 4 V. I). IL"). A sail- in ; The Kbenezer, ibid 1()(\ ; The Shan- non, 1 W. Rob. 4(i3. But there may be circumstances under itable n a ca.se ol inevi which, i accident, the vessel proceeding may be condemned in costs. The Thin-nfey, 7 -lur. (!")!(. In the case of Thf Waxhimjton, "i Jur. 10()7, Dr. Lushington ordered the damages, cost.- and expenses of both parties to be thrown to- gether and to be etpially divided, as was (lone ih Hu .'/ ^' h A eve. 2 Shaw (Se.) A pp. ('as. 3l>5 ; Thr Mnnarrh, 1 W. Rob 24. Since the .lu^licature Acts in England the Court, in ca.ses of inevitable accident, will use its discretio.M as to cost.>«. The Li- n !■•<, fail. ISP • >•)<, defendant succeeding on that trrouiid will be entitled to liis cost." Ibid. A d iscretion as to costs is al.so given to the judge in the Canadian Ailmiralty Courts. See rules <.f IS!);), Xos. 132 and 133. The ca.se of The Leda, Br. it Lush, 19; s. c. 32 L. J. A<1. .')«; 32 L. T. X. S. oM, IS a leading one on the <|uestion of costs, where the Crown is a party, r nor to the 111 Ipel'ia 100 VIClvADMIliALTV KKPORTS 188 •) TlIK Mixxii; (iorhon. Statute:^, 18 & lU Vic c. 90, the Crown was not liable to jm y costs. This was laid down in the House of L')rds in the case of The Lord Advocafi; v. Lord Doufjlas, W CI. it F. 173. And aUtr the pa.'isiji^ of tiiat Act it was held in The Lcda, supnt, that it only authorized costs to be given to or aj^ainst the Crown in proceed in<,'s in which the At- torney General or Lord Advo- cate is a party. The case of The Jjcda if instructive, as it declares th(! law in the several courts both before and after the passage of 1« tt li> Vic. c. !)(>. Dr. Lushiiigton, in delivering judgment, at p. 25, says : " In the Admiralty (-ourt, the Crown neither gave nor took costs. case of the Duke of Smxex, 1 W. Rob. 270 — a decision founded upon the practice of the courts ot common law, and the doctrine generally acknowledged in the profession. It is customary, how- ever, for the Crown to give costs as a matter of grace. They are given, however, against co-plain- tifls with the Crown. The Swu/- /o?<;, Swa. 30, and in informations before the statute, a relator was added for the e.\])rcss purpose that costs might go with the decree. The injustice of mak- ing subordinate parties liable for the whole costs is, after all. only an apparent one ; they will, no doubt, be indemnified by the Admiraltv," V'/f Ijcda, Kiiprti, p. 27. s ucli was my decision in the OF XKW I'.KrXSW'iCK. 101 TIIK MAID I'VK — Dixon. (.htliKinii — Liijht* — Lookout — Preliminitrii Act — Amindiu;/. Till' M., closo liaiili-d (111 the port tiU'k, }u':uliii>,' alxmt soiitli-wcst liy wt-st, and j^oiiig alioiit tliri'i' knots .u: lionr, with tluMviiitl soiitli, cainr into cullisioii witli the M. I'.; hf»Jmg eu«t, uml ninniiif; Iret- ahoiit ti'ii knots an hour, and was totally lost. Jleld: — From tin- I'vidt-nio, that the M. I', had no i)roj>er lookout; that I'ailiiro to have a proper lookout contributed to the eollisioii, and she was aecordiuKiy eondenined in damages anos- tdii to Moncton. The .Merlin was so (lania_«::e(l that she liccanie a total loss. It was jiUeifcd, on the j»art ot the plaintitf in his iireliniinarv act, that the wind at the time was a lioiit ontli, tl le w» athei- clear with a fresh hree/i that the Merlin, when she sii^hted the .Maml l\e, was close hauled on her port lack, and lu'adino; ahont south-west hy West, and o:<»i>!.iC sdiont three knots an honr; that she, at the time, had the rco-nlation li<;hts i»ro|u'rly fixed and hnrninir lirio-htly: that the Maud I'yi' was dista!>t ahont a mile, licarinii' south-wi'st hv west to sonth-wt-st. Tl lose on lioar< the Merlin, it was tiUcired, when thi'V tirst siirhtcd the Mand iVi', saw hoth the red and ifreeii liirhts: that as she ai>- proached, nearly head on, tho.«4e on the .Merlin hailed lu'r several times to lutV and keep cU-ar, hut she kept on her <-oiirse, wlien the .Merlin j»nt her helm hard up, l»ut >lie was almost immediately struck hy the .Maud I 'ye hctween the liowsjirit and the fore riiririno; on the port side, the port how of the Maud I've strikinu; the port how td' the MeiTin. It was jdso alleii't'd that the .Maud I've had no snlHcii-nt look- out; that she shoidd have lutfed up into the win liiiik-d, ami tlu'rcln- avoided tlio ('(tUisioii. Tho Maiileadin<;s under the rides. This the judi^e rcfusi-d to order, but i^ave defen(!ants per- mission to amend their ajipearance ])\ indorsini; upon it a cou!iter"i-laim. The defendants then tiled a further appear- ance with a counter-claim indorsed, claimini:: damaires from the plaintiti' 1»\' reason of the collision. There was no direct positive evidence on the trial that the Merlin and the Maud I've were the two vi'ssels in collision, as the vessel damairiuir the Merlin sailed awa\' immediatelv after the accident with- out ,«>(», the value of tin' vessel, an ■I'll flrri)i'( lilii/ii/. amp: By Caimdia any pleading 1k' anicnded, of the parties, judge. Vciy to amend al iMider the Ki The Court or stage of the cither party t his iiidoj-somei such manner i as may i)e jus such ainendm may be neces.' ing the real (| \H ivy between Court has pow ineiit to gran the indorseiiiei writ. The Die rules and rejrul ttl, and coiitir Council, Decei which it beca liiu-e ])reliniim >ioii eases. Tl liiuinary acts statement rece liading facts a "t tile case, an to prevent eitlu his statement t( OF NKW lilUWSWlCK. 103 AMENDMENT. By Canadian rule 67 of 1898, any pioadinj^ may at any time Itf aniendod, cither by consent oitlio parties, or Ijy order of the judge. Veiy extensive po\vei*s to amend all pleadings exist under the P^ngiish practice. — The Court or judge may at any stage of the proceedings allow cither j)arty to amen11 : Maii- Pye. "The oltject of the preliminary act i.s to obtain from the parties statements of the faci.-* at a time when they are fresh in 'he recol- lection." In T/ir ynrt;;/cni,'^\\i\. 518, it was laid down that appli- cation to amend any mistake in a preliminary act must be made at once after its di.scovery, and must be supported l)y afhdavit. Hut in the later case of The Fniitkhittd, L. R. .'} A. it K. oil, the defendant in a cause of (hun- age applitd to the Court, when the causi' was called on for hear- ing, and i)efore any evidence had been taken, for leave to amend the preliminary act, and also lii.s answer. The judge allowed the answ(!r to be amended, but re- fused to allow an amendment of the preliminary act, as such a course would entirely defeat the object of preliminary acts. In The MiramUt, 7 P. I). 185, ap- plication, supported by affidavit and before the hearing, was made to allow a mistake in a prelimi- nary act Lo be amended, but it was relused, the judge sayinj: that " it would be improj)er for ii' Court to allow any alteru- tions to be nuide in the prelimi- nary acts." The ilefendant, how- ever, in TheGox the same, see nnic to the (• sc o f 77/c (intiru/. illllr \) !»l Di imai:t' i»v c((iii>ion was done to a ves.«el shortlv after a contract luid ocen ma( le 1 )V lu'r owni'rs toi' anollier voyujje upon tile compictitin u\' the voy- au'<' she was tiion on. in con. P. 1). 10."). LOOKOUT. Vigilance, as well as experi- ence, is rei|uired of a looknm : and if he is inattentive to his duty, it is no sufhcicnt ex(ii«c to say that he was competent in perform the rcipiired .-ervid . Myer's Fed. decisions, vul. '!'■',. .si'C. 40.)."), p. !)77. Not oiilv should there he one or more nn «leck for the purpose of lookini' out, hut they should he properly stationed. Lowndes on ( 'oil. li^. It is no excuse to allege lliiil from the intensity of the dark- ness no vigilanci', however great, could have seen the other vc.-h I in time to avoid the colli>iiiii. Thi Mtllona,:\\\.\lu\>.l. Tin proper position for the lookuiii on paddle wheel steamers pl\;:',; in crowded thoroughfares i> un tlie hridL'c iietweeii the paildir hoxes. Thr Win-nil, ih'nl .')(!. A strict lookout is not so essential to a vessel having the right nt way as to one hound to givr way. Till Prorji-i ■■<■■<, 7 Mitch. A'.\'?>. ( )ii«' or two hands slioiiM he specially stationed on tin lookout hy day as w(dl as :il night. Thr Dlaini. 1 W. \M>. i;il : Thr . I''ault does attach to a ve,«;se a iiMikout astern 77(f Knrl Sj)ciirfi V.'A : Thr Clh/ n I). 27<); hut w( fault prohahly f -icrii lights. The l'»4. A ship ha tiiw iiiiist he esp ami have a loo Thf June liarai, LiicmI rules of i fiijiiiii greater st |ilaces than in otl '/"/•' ^ !» App. Ca niil.'t he u.il)li' for the fiiult The Muri/ JiuiiiK !'.■'!•>•'». The owne OF XKW MinXSWICK. Ht; Sdv. Co. V. IhitThiii, 1 App. ('as. the nccident is attriltutaltle ti> a l*^^') 7!Ml. On tlu' Tlianu's tlic Itxtk- dcticit'iicy <>t" lookout ami man- Z ~ (lilt slionld lu' on the fort'castlc aucnicnt on hoard of tlic voscl M.vii, p^^; lifud. Tim JI<^7; and it i.s nogli- 'i Stuart, lo:} ; and not the pilot. _'fiicc on the Tvm' without an Tlir (}rlnit)i/, ihid, 144. The aii'lior watch. T/ir J'/iidiln, U American law na to lookout is 1'. 1). The ahsen"«' of a f'nilv as strict as in lOu'dand lookout, contrihiiting to colli- or Canada. See the case of 7V/*' sioh, renders ves.xel lial le, al- Si(iiiiii.-. Fault does not necessarily the otHcer in charge ol' tlu- deck Httach to a vessel for not having not sndicient. and tliev shoulil 11 lookout astern on a clear night. Tlif KfirlSpeiin'r, L. 11.4 A.tS: K. 4;!1 : Tim Clly of Brook/iin, 1 W I). 27(1; hnt would he held in tiuilt prol)al)ly for not showing -It rii lights. ThcXiriulit, lme jilaces than in others. Tlif Mses ninst he used where really need- ed. Till' Ilih'-rniii, 2 Asp. 4")4 ; ami they were h(dd Me<'e.<*.«dit. Tim Villi iln he placed in the ship's hows. Cliutitbci'luin v. Wnril, 21 How. •'>4H ; or in the part of the ship from which other vessels can l)e.-t l»e seen. Thr Morning Liijlil, 2 Wall. .").•)(). In Tim Anmhm,V.\ Wall. 47"), the Supreme (j)urt of the rniteil ."^tates h iil>lc for the fault of her lookout. hoat is not sufficient. Tin Jilo.s- Till' Mnri/ Jiitnnaliiiii\ 1 Stuart, Ainn, Oleott l-HM. II. -I'lo. The owner is lial)le w hen 10(1 ViCK-ADMIKAI/rV liKI'OlJTS 1885 I>pc. 12. TIIK KMMA K. SM ALLKV—Coi .sin.s. C'ollii^ion — Foij-horn — Lookout — Inevitable tiecident — Libel — Evidence — Varinwu. The v., KtoiU'-liulen, oii a voyjige from DorclieHter to New York, ort Tyiu- iiioiilh (."n'ok, in the Bay of Fnndy, close liaiiled on the .Htarhoani Un'k, (■nine into (ollision with the K. K. S. running free, in iialhist, jfoiii;; n\, tile iiay to Moncton. 'i'lic ni^lit was liiirk and foKK^'i >'»*! from thccvi- (lenee it appeared tliat tiie\'.liad no niechanieal fog-liorn, as reipiired liy the re^nlations, and that tiie one she luid was not iieard on lK)ard the K. K. S., wiiicli was to windward. Held : — Tiiat it was a ease of inevitable a ot iiiitdiiiii .>^c-li(>(»ior W'Sti ^ttl ii,ii<;imist Tilt' .Miienrim sciiooiici Kiiinisi I\. SmulU'V. On tlio \u\vX of tlii' pfoiiiovonts it is al- It'ift'd ill tlit'ir lilii'l tliiit on Si'iiicinlttT 2, IHS'J, tlif scliooiur Vt'stii, of tilt' hiiitlu'ii of l-'5() tons, left Dorclit'stcr tor New ^'ork. On tlic t'Vt'niiiii: of St']tti'inl)t'r J}, al)oiit !• p. ni., tlic A't'stii was off Tvni'iiioiitli Crufk, in the lisiv ot Fnndv. 'flie WiImI tlit'n was Ulowino- tVt'sli fi-jiii iihoiit west .soiitii-\\t>t. Tlif W'stu was tlu'ii on stsirhoanl ttick, dose liaiilt'd. and lioadinn" alxmt soiitli. 'IMif W-stti tlit-ii sio;litt'(l i'lu' Kniiuii K. SnialK'V alxMit four hiindrt'd yards distant, nmninir lice I»t'fori' tin- wind, and iit'adini; aWoiit north-east, (»r more ca-t- t'l'ly. Till' \'csta ki|it Ikt ioo;-lj()rn ^i^oinuf constantly, ami fonld jilainly disfcru tlu- Knmia K. Sniallcy. Tlit- latter vessel was tlii'ii at ji sntticicnt distanct' from tin- W-sta. I'v tlu' t'Xt'iH'iso of ordinarv cart', to lia\'c averted the collision. The 1- mnia K. SnialK'y ini|»ro|terly held on lier course aiKl ran directh- into the X'esta, striking her about the sttirhoanl main chains, tind ciittimr her down to the wati-r-wav; Th ?'mma K. Smalley, when siirhted, was to windward (»f the \'esta, and the co|li>ioii occurred solelv thioMi^h inattention OF NKW liUl'XSWICK. 107 ,ftl R' Slllillll'V Til." Vosta WHS tlu'ii (.fthe vjiliU' «»r^4.tHH), I'^S-'i ;iii(l \\iif< Imilt ill 1H72. TIm' W-sta's was oiw himilrt'd p ,iii(i tiirlitv t(tiis Idiildiiii; stun*', uf valiu* ot"!j<'J,; not more than three kiint>. The tide \vas ninniiiic to the west alioiit two knots. At s p. m., tlie h'.ists on the foi;-horn were tliani;ed from 'iiR' to three hlast', and kept eonstantlv iroini^at intervals of t less than a miinite up to tiu' time of the i-ollision. Throe lists were blown each time. A sharp lookout was kept, and there was on deck hetore (1 at the collision, i'a|>tain, mate, cook, and seaman Moraii. Till- mate was on the lookout, dohn .Moran was at the wiu'cl, the cook was foiward, and the captain on fleck kei-p- iiiira i;ood lookout, dust |irevi()us to and at tln' time of the '•nlli>i()n the foif was very thick with smoke, so that it was iiiipossihU' to see far aiicad. .\t about !• p. m., those- on I'.iiiiiia K. Snuillev heard some one on another vi'ssel, which III) an afterwards turned out to be the W'sta, calliuir out " Hard up, VMii are coming'' into us," or somethiuir to that elteet, which '•nitr was ol)eyed by the Knnna l\. Smalley, and almost im- iiuiliately afterwards the Kmma K. Smalley fouled with the \ ista al>()Ut the main riiru:in,i; of the W-sta, breakiuLT off the Knnna K. Sisuilley's jiit-lioom, and breakini^; the cathead on l"'rt side, bow rail on port side, and startinu: cutwater over ■'• larboard. The vessels were toirether about tive mimites. [•arted, and the \'esta passed iindei- the bow of tl II K Kmma K. Smam.kv. ,iii le lus \'I('lvAI>MIIiAI/rV UKlMMiTS Imh:. Kniimi K. Smulli-v iiiul out of siirlit to port in the foLT. l ;iv. ins; two nu'M on tlic Kninin K. Stniillfv, At tin- tinu- ut i!i. Ill: Kmma K. collision the wind was not hlowinn' iVi'sli iVoin altoiii \\i>t S.MAI.I.KS Solltll-Wcs t. Tin- Vfsl; I Uiis not lifiiilinu: iilxiiit sonti Tl, N'cslii dill not siiilil llif I'lnmia l\. 4(Hl vnnls distiinl. TL W'Htii did not k»'»'|» licr |n>;-lioi'n ifoinif constjintlN , and cniiM n to the collision the wheel of the N'csta wa> \>\\\ in weatln'r hecUet. and so remained; iind after the \r-«iU H'ot clear, tlu' \ I'sta came round au,aiii to ijie stern of tin Mmnia l\. Smalley. The collision v.diild not have occiirrtil if the wheel of the \'esta had not hcen put in the Wcallifl Itecket. 'I'hat llu' captain of W'sta at time of collision eaiiif on hoard Smallcv in his shirt and drawers. N\'\t nioriiiiiL: the N'esia carried all sail iroinii' to Dorchester, which >ln conlil not ilo if mainsail had Iteeii cracked. The Sniallcv did not lia\»' any foii'-horn previous to collision. Thai H' t'oii-horn wa> hlown hy W'sta, or if hlown, not Icnid eiiiiiiL;li to he lu'ard a proper distaiu'i'. Tlu' \'esta is a British ve>- and was not providi'd with snch a tou'diorn as is reipiircd \>\ the reii'nlations. The lights of the Smalley wi-re larii'ei' aini mow powertid than those of the \'esta, and could he >c(ii throMirh tliii'k foLj a li'reati'r distance. The lio-hts ot' i!i< \'est;! vvi-ri' not aceordiiiir to reijniation. The \'e>ta wa> ii"i iroiiiiT at a moderate rate ot speed previous to and at the liiiic of the collision. If tin- N'esta had heeii u'oinij at a modtiati rate of speed the collision would iu»t ha\'e liappeiiecj, or if it did happen, would \\{>{ have damaifed either vi'ssel. Tin W'sta's starhoard ipiarter was not hadly damaired, and niilv one main chain hrokeii ; 81<)() damaije done. Tlu' \'cr-ta was not of the value of !?4,(M)(), not more than 8. L. /I'ni'iit/f'iii, (^. (\, and C. A. I^uhmr, foi' proiiinNciit. \. N'estii wa> Miialley ninnii Inr coiirsi'. I were sufHeientI have kept I'h-ar III) proper look :illi>\v th«' anion to time of pay nliat could Inn .■aptain and ere r. W. HVA/o/ iiijary to vessel 'it' provisions, i 'heir statement; uith liiiel. -1 .\iiii rn-iiii ( 1 ) : I'i'iived as alleiTt vosci runniim' : "ur eourse. and -;iy they lu-ard 'oiitinued our * line of plaintiti aliij ciiusi I it. a t'lin' — a foy'-h Siiialley was sij ^Mtious : we ni U'cu doiu'. Th U' alle<;ed. If prnvc it, that is liy which that i liail the ri«rht ot failure to coin]'l lilt : it was tliei was smoky and "II defendants. .1) 12 Moo. V. OK XKW IJUrXSWICK. ](!!» \-. \'rstii wuH dost' liiiiilc(| on i-(tiirit<'*'> Siiialli'V iMiiinliii: fi'cc, limit r Article l'*J Votn sliuiiM l\ft'|i p iir: liti' toiirx'. IihU'I- tin- iirlific jiml sniliiiLi I'nN", ri's|inii<|fiit> Kmmv K. \v( Tt" siifliciciitly liii- iiwny w lien \\\v\ sij^lilcd tin- \ «>la to H.m.u.i.ey, liiivc kept cli'iir, uliiili tlii'V *i\(\ not enses. Tartii-s are lioiind hy ilit'ir stateineiits. Cannot shift case liyevide ce at \ariance uith liliel. -2 I'litch. Ad. Diir. .'),rih .\iiii I'lriiii (1): rill Aim and Jl'iri/'iri/ {'2.. ( 'a>e inii>t he I'mved as allei^ed. 'i'lie charn'e in lihej is that they saw a vr>-e| riinnimr S. : that we were riimiiiiir N. M., continued "iir iniirse, and hrtmiiht alioiit the coHisioii. l{e.-|iondents -ly they ln'ard no fou'dioin. ,\lIeu,ation in lihel i> that we ■ niitiiiiied our . oiirse and caiisi'd the collision The evid- iiH'idf |ilaintitt' is that we <'lianijed our iiosition hy iullinif iinl liiusi I it. The plaintiir has tailed in proof; then' wa> ;i \\,r, — ji foy-diorn was re<|nire(| ; did not hlou until the >iii;illey was sii:;hted : no reiT'dation f(»i;diorn. 7'A< //'^r.m. p. r. :{3i. (3) 6 P. D. 80. {'!) 13 Moo. P. C. 198. IMAGE EVALUATION TEST TARGET (MT-3) /. (/. 1.0 I.I 1^12^ 12.5 1.8 1.25 1.4 1.6 ^ 6" ~ ► V] <^ /a y 7 4 m v& '//.'■ Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4 #> ^^ V V \\ ^> 6^ 4 ■<^ fe ^ 110 VICE-AI )MIIiALT Y RKI'OKTS 1885 was tlisit tlio NX'ssol had not the regnhition fojr-honi. Tiu-y The huvo not proved that we had not eoniplied with the reuula- Emma K. tion urt to a t'oii:-hoi'n. Refers to 48 \'ict., c. 29, sec. M. Smallky. The Maiynrt (1). Wattkks, ,I. This is a suit promoted by the owners of the schooner Vesta, ot" the burthen of 130 tons, aij;ainst the schooner Emma K. Smalley, of the burtlien oi" 180 tons, to recover for (hima^i^es to tlie Vesta occasioned by a collision between 9 and 10 }». m,, on the 8rd Septend)er, 1882, otf Tynemouth Creek, in the ]>ay of Fuiidy. Tiie Vesta was bound from Dorchester to Xew ^'ork, laden with bnildiiiii' stone. Tlie Enima K. Smalley was proceedin<>; up the liny to Moncton, in l)allast. On the part of the Vesta it is stated in the libel that the wind wasblowiny; fresh from about west south-west, that the \\'sta was on the starboard tack, i-losc hauled, heading* about south, that she siu-hted the Emma K. 8mallev about four hundred vards distant to windward, run- ning free, and heading about north-east. That the '\'csta kept her tog-horn going constantly, that she could ]»lainly la>ts ami ki'pt constantly u'<»in_ to tlie tiniL' of the eollision, tliree blasts bein*;; blown each ij^ time. That a sharp lookout was also kept, and there were Eym\ K. on (leek ut the time of and previous to the collision, the Smam-ev. captain, mate, cook and a seaman. That for some time previous to, and at tlie time of the collision, the foii; was very thick, with smoke, so that it was im]tossible to see far ahead. That about 9 p. m. the wind was abotit south south-west, and those on board the Kmma K. Smalley heard some one on another vessel, whicli afterwards turned out to be the Vesta, calliui!; out " Hard up, you are comini;; into us," or somethiuir to that ettect, which order was obeyed by the Kmma K. fSnialley, and almost immediately afterwards the Kmnui Iv. .Smalley fouled with the Vesta about her main riii'^MUi;. The Kmma K. tSmalley denies in her rei)ly that she was j-cen four hundred yards off by the Vesta, and sets up that tlu' A'esta did iu)t keep lier foy;-horn g'oiuii; constantly, and it is denied that, bv the exercise of ordinary care and sea- iiiansliip on tlie part of tlie crew of the Kmma Iv, Smalley, that they could have a,voided the collision. The rejily also allcii'es tluit the persons on board the Kmma K. Smalley did not hear any foii,'-horn previous to the collision, and that no t'oii:-horn was blown on l)oard the Vesta, or if Ijlowii was not blown loud enough to l)e lieard a proper distance, and was not blown at proper intervals; and further, that the Vesta was not provided with such a fog-horn as is required by the iviiulations for preventing collisions at sea. They further allege that the lights of the Kmma K. Snudley were large, and could be seen through a thick fog a greater distance than those of the Vesta, and that the lights of the Vesta \\ere not according to the regulations. I am of opinion, trom the evidence and conduct of the persons on board both vessels, that the weather on the night of the 3rd September, 1882, was dark and toggy. Both parties, in their pleading and evidence, say that for some time before and up to the time of the collision they ke[it their fog-horns going. In such weather it was, therefore, the duty of the master of each vessel to exercise the utmost viirihince, and to adoi)t the best means in his power to avoid iV2 VrCK-ADMIliALTV RKPOKTS ISKo jiiiy t'ollisioM. The EiiP.Uii K. Siuiilk'V, hoiiiij: Ji vossol niii- Tiii: iiiiiu" IVc'i', was hoiiiKl to kccj* out of the way of the other. Kmma K. It is nrifed and pressed on her part that slie kept a u'ooil Smai,m;v. lookout; that slie was prcx-eedinii; at uiodenito s[>eed, and souiidiuij; her foij sit!:iud at [iroper iutervals: that she hi'ard no t'oij; si<«;uals excejit lier own ; and tliat it was irupossil)l(.', by reason of tlie foixii'iness of tht' nii!;]it, to discern the Vesta. Avhieh was deeply laden, until the collision was inevitahje. The master says: " [ was on a lookout, and on tiio ([uarter dec-k, walkini!; from one side to the otiier, and the mate was on the forecastle deck, f could not see the Vesta until she struck us." The unite says: " I was on the forecastle deck keopiui? a sharp lookout. Moran was at the wheel, and Xelson was forward on de(d<:. The foii* and smoke at the time of the collision was so thick that you could not see the leuLfth of the vessel." The nautical assessor with me in the case advises me that the s[»eed of both vessels was moderate : that the Vesta was not seen by the Kmma K. >'nndlev until the collision was inevitable; and that the failure of the Snudley to discern the A'esta sooner was (jwiuii; to tlie foii" and the al)sence of anv warninii; that the Vesta was api)roachin!i; ; that althoug'h a foi>'-horn may have been blown on board of the A'esta, as stated by her mate, yet that it was not lieard by the Snudley, Avhich was to wimlward. The assessor is also of opinion that a i>roi»er lookout was ke]>t on board the Emma Iv. tSmalley, and that liad she received warniuii; of the approach of the Vesta in a reasonable time she might have avoided her, and, therefore, that no blame attaches to the Emma K. Smalley. C'oni-ur- r\ug with the opinion of the nautical assessor, I pronounce au'ainst tlie damaij-es sued for. An important (juestion upon the promovent's pleading has been raised by the respondent's counsel, vix. : that the case of the plaintifts, as niade out by their evidence, was entirely at variance with that set up by the pL^iintifi's' libel, and that the plaintitts could not recover, as their proofs were not according to their allegations. Cases in the Admiraltv Court have been cited, which establish that the Court must not allow the party proceeding to recover, if he fails to prove OF XKW P.KrXSWICK. 113 '>M.\I.I-EY. tln' I'aso sot up in his plcndiiii^s, jiltlionijli no thnlt \>v jirovcd 1HH5 iiiTiiinst his vessel and fault is (.'s*^aI>lisJK'd a- sariis, and tlie money brought into the rej^istry, Held: — Tliat tlie seamen iiad a ri^,'lit to i)e paid Ijei'ore tiie piaintiH' wlio iiinl obtained the decree. Tlio l)()r/oiK', ill) Ttaliaii sliiji, iihont 'riily, 1HS(>, took on hoard at Chatliain, X. 1)., a cai'o-o of deals, Ixjiind for Mar- st'ilk's, France. The vessel sailed for Franee from CMiathain, aforesaid, in the month of Jidy, but havinir heeii damao'eil l)y a storm shortly after sailino-, wi's eompelled to put hack to Chatham for rei)airs. The earo-c) of deals was ]iartly disehsiro;ed on the wharf ot llenrv A. Mnirhead, the ]>laiii- tiff in this snit, and for whieh tin; eajttain of the vessel aii'reed to \m\ whai'faife. A warrant was issued out of this Court in the month of Sojitember, 188(!, at the suit ot Miiirhetid in ti cause for necessaries su[»plied at the reijuest of the master. Tiie claim Avas made up of wharfao;e, sur- veys, and an account of 8700 held by C4eoi\i!:e AVatt, of Chatham, a_i?ainst the vessel for adviiuces made at the t.-ap- tuin's request, and which on the same request wtis ]iaid by Muirliead. Prior to the arrest of the vessel in this suit the master litid drawn a bill of exchange u]ion M. Gaillard, of Ahirseilli's, and which was ticcepted by him, and ptiid Ibr disbursements of the ship before her arrest. ["pon the arrest of the vessel, the ctiptain beiuo; wholly unable to raise funds to rei>air her or to discliari.':e her liabilities, tlu' pliuntift", tlfe seamen, the mate, the master, and the holder of the l)ill of exchano'e claimed priority of payment. The several clainnints ap}»lied to be allowed to intervene and become parties to the suit. This was refused, but on the suo'o-estion of the judge, and ilie consent of parties, a decree of sale was made at the suit of Mnirhead. The vessel was sold under the decree of the Court and the proceeds brought cause of n< OF XKW lUaXSWKIv. 117 into tlie roijistrv to 1k' piiid out as tlie- ri^lits of the rcsitcc- tive t'laiiiiiiiits miu'lit ii|ii»riir. Tlic ainoiint was iiisiifHc'u'iit to [tay all ciaiiiis in full. C. A. Pii/iin i\ for tlu! i»laiiititf in tln' suit tor luTcssarics. (•(•iitc'iidL'd tliat the doeri'C already obtained in favor of Miiir- luad slionld l»e paid tirst. lie cited Maiijiihl \. Ma( k. j.dwndes on Fns., sees. il'-^J^ : Maclacldan on Sliiiniiny, .J4J. Tin K II Vital; {;J). r. \\\ HVA/o//, (I. ('., tor the holder of the hill of exchan,i-e, dors not deny advanee freiicht cannot ite recovered hack, hut where, hy the default of the shipowner, the contract is put an end to, not In perils (jf the sea, it is a recission of tilt' contract, and his client, liuvini!; advanced the money to pay dishurseincnts, is entitled to rank on the fund in Court. The vessel cannot now earn her freiifht, and the owners are rcsponsihle for the loss of freii::ht. 1 1 is client now stands in the same position as Mr. Watt and otliers who nuide ad- vances. 7'Ar Mnrhliiiiil (4) ; 71ic^ Fiiirpini (o). ir. C. Wiii4oii\ for tlie master and seamen, contended that wages are a first ehiini, and must he paid hefore all others. Cites TJic 31ai/i>nna 17 film ((5), where a Greek mariner was allowed subsistence money and means to return home. Tin' Janr (7) ; Tin' Saii Jnsf Pn'))ieiru (8). B^oreign soameii, employed out and liome again, are entitled to pas- sage money to return home. The EHznljilh (9) ; Tin Prori- ihitir (10). As to the ease of the nuister, if he had known lie was siijninii' away his lion wlion he tjave draft or ordered necessaries, he would not have done so. Kay on Shipping, vol. 2, 1137. Seamen should have wages up to time of arrival home. This is laid down in The EUzahelli, suprfi^ and the same applies to the master. Waiters, J. In this case the shi}) has l)een sold in a ouvise of necessaries and the [»roeeeds brought into tlie 1S8(] TlIK (1) 4B. & Aid. 582. (2) 7 E. & B. 633. Ci) L. R. 2 A. & E. 289. (4) L. R. 3 A. & E. 529. (o) 8 P. D. 48. (6) 1 Dods. 37. (7) 1 Stuart 25(). (8) 3 L. T. 513. (9) 2 Dods. 403. (10) 1 Hag. 393. 118 VICIvADMIKALTV KKI'oKTS ]HHi\ iTu-'isf I'v. ('laiiiis liiivf lii'cii tiled iiiraiiist tlit- fiiiitl mi T,,,.; Ix'lialt' ol' till' iiijii'iiici's tor \ViiL.^(s ; l»v tlif iiiastcr top Wiiu'i.- I'lOH/.d.sK. ami dislmi'st'iiK'iits, ami liy M. (Jaillar(l jltr tlic ainoiiiit ot' n t'l |iri(ir K' <|iicstion lias arisen as to ilic to liiT arrest iii tins suit. 'I'l oi'dcr ill wliicli claims and what claims shall l»c paid. 1 diicct that the claimants on the I'lind ill Court he paid out ot' the same, as far as it may he sniHcient, in the t'ollowini:' order : 1, ( )ii the aiitliorit\' ot" 7'A*' /uiiii'iruliilii < unci limn (1 lie lilaintitf's costs in this suit are oi"(U're(l to he paid. '1. 'V\\v wa^'es of the seamen, including' the mate, up to the date of the arrest of rlie ship, t(\iivther witli allowances of .S'Jn to I'ach f(tr return to their own coiintrv, with their costr The plaintiff's claim in this suit as decreed. 4. The master's Avat::es and dishursements. In this case, the master havinu; ordered the necessaries for which he was ])ers()na11y liahle, and for the payment of which he stdtsecpiently sin;ned jtapers plediciiiij himself, slii]i and caru'o t'or such payment, cannot claim a priority over th le i»lain tiff s claim for 1 lis own wattes and dishursements The <'laim of M. (Jaillard, even if it can he recoi>-ni/A'd as a claim for necessaries, cannot comjiete with the claim of the plaintitt under his decree. The j)1aintitt' has perfected his elaim hy action and decree, and therefore hoth are not in tlie same condition, and the plaintiff is entitled to priority. D 'I'c'i'cc wvori Ihif/lij. As to priority of liens it is laid iMisitive law ^idcratioiis." liens conipri^' iiiiisit'r'.s d\>\ vii;:e ; the ,«e ;iL'c hy eollisi Ill'VV/r I Lush, (i!), V iuitliority on held that .se priority first liottomry ho iioiiiiced for the wages w piirty, at the tcr, pay the liis claim is claim and i liottomry iioi 'if a elaim vioiisly proiK cesjiaries ha\ licfore the l)o iir more elai the one first of the Court the others. til the prosec ent claims hi itf priority as solves. See Hag. 240 ; T cczlone, 9 P. OK XKW iiurxswicK. 119 till' 'nttcr class in tlio direct iii'ilcr (if tlicir attachiiM'iit nii tiic rfn; and relatively fo each other. Whilst liens nt' the one class when prinr in date yield pre- (cilenc'C in claim to th'ise of the ntlier class when siil)se(|Uent, the actual result of this ordi-r of nuikintr is jfieatly modified hy positive law und eipiitabh; con- siderations." The lirst class of liens comprises hottomry, wa^'cs, iiiiisier's disbursements and sal- vajre ; the second, usinilly, dam- age hy collision \n' The William F. S„fard, Lush. Oil, which is a leading authority on this subject, it was held that seamen's wa^'cs took priority first of all ; then a bottonu'y bond previously j)ro- iiounced for, and given before tlie wages were earned. If a party, at the reipiest of the mas- ter, pay tlu! wages of the crew, his claim is deemed a wages' claim and ranks a.s sncli. A lidttomry bond takes ])recedence iif a claim for necessaries pre- viously pronounced for, the ne- cessaries having been supplied before the bond. In ease of two i>r more claims for necessaries, the one first obtaining a decree 'if the Court takes precedence of the others. The costs incident III the prosecution of the differ- ent claims have the same right I if priority as the claims them- selves. See The Margaret, 3 Hag. 240 ; The Immacolata Con- crzione, 9 P. D. 37. Dr. Lush- ington, in Thr rnloit, L\.\f\\. \2X, held that ipiestionsof preicdence of liens upon ships are to be de- termined by th" /r.r fori. At p. 137 he says; " I'pon an ex- amination of all the eases, und upon an investigation of the practice of the (,'ourt, I find that no distinction has ever been taken between wages earned be- fore and wages earned after a bond ; that in practice both have been alike preferred to the bund." In this case it is worthy of note that the learned judge overruled his previous decisions in The Mary Aim, L. II. 1 A. tV K. H ; s.('.!».Iur. {)4; The.Jand Wilmn, Swa. 'J()l ; and The Jonathan Goodliiif, ibid, ')2A. A foreign ship is not liable for money loaned to the imister to get out of gaol, where he was imprisoned for a claim for necessaries sup- plied to his ship. The N. R. GiKj'abriek, Swa. 344. But it seems a person supplying neces- saries to a shij), and taking a bill of exchange for the .same in pay- ment, can, if the bill is not paid at maturity, sue the ship on the original debt, ibid. A master's wages and disbursements come next after the seamen's wages, and before other claims. The Salucia, Tjush. r)45, although he be a part owner, except, how- ever, where, as master, he has made himself liable. His claim, therefore, gives way to bottomry when he has joined in the bond. The Edward Oliver, L. R. 1 A. IMHfl Tup. Itolt/oNE. 120 \•|{'^:-Al)MII^\I/^^■ ijki'oijts l.SMd Tin: KOIIZONK. A' v.. .'!7!*; or in ii inoilmijjc. 'I'/ir Jfiiini Ijind, Ii. 1 1. .'! A. tV K. ;'),') 2 ; or onlciftl iit'ct'H.iiirir!*, ibid. Tlui iiiastt'f'rt cliiiiu for (lisljiirscmciity liiis priority over tluil of 11 piircliiiHi r. The. L'liif/- dove, 11 P. I). 121. Thi.s liUUr c'UMO wiiH rt'vcrscd in tho House of Lords in Tlu; Sdrn, 14 A pp. Cas. 2()!>, Imt In- tli(« Merchant Shippiiifr Act, !««!), ryl-'hl Vict, c. 4(i, the law wuH brought l)aci< to wiuit it wa.s taken to be before the judgment of the Lords in the latter case. See (Hite, p. M"). Among claims of e(|ual stand- ing, as staled, a preference will be given to the one tir.st obtain- ing a judgment. Dr. Lushing- ton, in The WUliavi F. Sufford, .niprn, p. 71, said: "The Court encourages sailors in actively enforcing their remedy, and gives ])reference to the party who is first in possession of a decree of the Court." Hence it was held in 77a' (Ittra, Swa. 1 , that of two plaii\titts in a oau.se of damage by collision, the one obtaining the lirst decree takes precedence. The same doctrine was laid down in The Desdamona, ibid, 158, but in the latter case, as there had only been an interlocutory and not a final decree, all the claimants for necessaries came in on equal terms. See also The Saracen, 2 W. Rob. 451 ; 8. c. 6 Moo. P. C. 5H. See for a further statement of the law on the (juestion of priority of liens Maclachlan on Ship. (ed. 1892), p. T.')!); W. iV iJruce (ed. l«>t;), 204. In Koseoe, .\(1. Prac., p. (;•_', ii is said to be an invariaitle riil( tliat chiims against the /•/.'< nink in the inverse order of their at- tachment: the hist in time is tiu' first to be .satisfied. The follow- ing is tiie onh'r of |)ri(iritv: ( 1 ) Salvage tif life. Mer. S|ii|i. ping Act, 1M.')4, sec. 450; Th< Coromaudi'/, Swa. 205; Thi Cnvf/o re.i SchHler, 2 P. D. 145, (2) Salvage of property. Th Giixt) Mnrtjiiljfc. Thr Tiro Elh'W, L K. 4 !*.('. KiO; M. (. n L. .1. All. '\'-\, whori' the iittHi^fiicc ol" the iiiort},'ii;;i' ttMik idTccdciict' dt" ihr material innii. (7) Neccs- siiricrt MO tar as rejiiirds Hritish ships, ih'nl. IJiit if u master is also part owner nt' a t'urei;:ii ship, his claim for waues ami ilisliiirsements, contrary to the iiciienil ri.le, will rark after claims for necessaries supplied til the ship on the order of the iimster, and for which Iw is liiiiile. Th> Jnini/ Linil, \j. \i. '.] A. A K. .V-'r>. The claim of a l>H(i master for lii.s wa^'cs eariK d and 7 ', disluirscmontM made siil)se(|U«'iil- I'mik/hnk. ly to a voya^'c, diiriiiir which a '((tttomry hond Ims Iveii given on his ship, takes priority over the Ixmd, hut the claim ot' the hondholder takes priority over the claim of the master for waj^es earned on voya;i;e.s previous to that diiriii^f which the bond is Kiveii. 77/c Ifopr, 2H I. T. N. S. 'JHT; H. c. I Asp. r.();5. The master's claim for wajjew and dishursement.s, whonever earned or made, have priority over the claims of niortLxauees, Ihiil. 100 VICP:.ABMIKALTY KEroUTS 18S7 — ■ — ' Oct. lit. THE MISTLETOE — CoRNix< J. Wages — Master — Forfeiture — Authority to Bind Ownem — Costs — Security fur. The sliip M. arrived in Liverpool, Engliind, witli a cargo consigned to parlies tliere, witli instructions to tlie master by the owners for their agents' to collect inward freight and transact the ship's bnsiness. The agents pin- chased an outward cargo of coals for .St. John, N. 15., and informed tlit master it was on ship's acconnt. I?y recpiest of the agents, the niastor signed a draft for payment of cargo, although the owners, but unkniiwn to the master, had sent the agents funds for the coals. The agents siiortly after became insolvent. Held: — In an action by the master for his wages, that the owners could not charge the draft against the master, and that he was entitled to recover his full wages with costs. The plaintiff in this suit, Tliomas! II, Corning, instituted a cause of subtraction of wages as master of the ship Mistletoe. The nianagino; owner, 1 1. I). Troop, resided at St. John, X. B. The vessel sailed from Manila with a car^o of hemi> and suo;ar consigned to parties in Liver[»ool, (Jrcat liritain, where she arrived in January, 1887. The plaintiff, as master, Avas instructed by the owners to report the shi}! on arrival to T, C. Jones & Co., ship brokers, of that phice, and the inward freight, under like instructions, was received by Jones i*c Co., who also transacted the bnsiness of tlie vessel while in Liverpool. After delivery of the inward cargo to the consignees, the master in his evidence stated (and it was not contradicted) that lie consulted with .b)iR's & Co. as to the outward cargo — that he sent a cablegram to the managing owner at St. John, X. li., as to the outward cargo. Sul)se(piently one of the firm of Jones & Co. in- formed the nuister that he had received directions from the numaging owner to purchase a cargo of coals for the vessel and send her to St. -John. Xo instructions were received by the master from the owners as to the cargo. The vessel was accor-ned the (h'at't, as re- i|iR'Ste(h The owners, it a])peare(l on the ti'ial, had sent .]()\\L'^ & Co a draft for £3(10 to pay for the car^'o, l)Ut thi-; fact was not known to the master. Jones iV Co. shortly after hecame insolvent, and the draft sii^ned and uiven them hy the nuister was jiaid hy the owners ot the ship thronu'h flif nianau'inu: owner, who was arrested for it in Liver})ool, and allowed jndirnient to Lfo h}' default. The defendants tildl a counter-claim against the plaintiff for the amount of the draft he had siurchased the (.•aru'o for a coal nierchant at St. dohn, receiviiii; a certain troiii'lit per ton, and that the cargo could not therefore he considered as on ship's account. The contention of the defendants, however, was rejected hy the Court, and judg- inent was given in favor of the nuister for the full amount of his claim, S034.0H, and with costs. A point of practice of eonsiderahle importance as to giving security for costs, oil the part of the ]ilaintiff. arose during the pendency of the suit. ]*]aintiff's counsel, on September 8, 1HS7, on motion asked that a day be fixed for the hearing of the cause, and tlie judge fixed October 8, 1887 as tlie time for hearing. The defendants, on September 10, 1887, filed in the registry a notice of motion for September 12, 1887, supitorted by attidavits, calling upon the plaintiff to show cause belbre the judge in Chambers, on the last named date, why he should not give security for the costs of suit, on the ground that the lilaiiitiff resided at Yarmouth, X. S., outside the jurisdiction i»f the Court. This motion was ojiposed by the plaintiff on tlie ground set forth in his affidavit filed — that he was u >tiaiiger in tlie province and could get no one to go his Mcurity; that ever since the commencement of the action ill' had been a resident of the province, with the exception if a few days, and that he intended to continue a resident 124 VrCE-ADM [RALTY KKrOPvTS 1SS7 TlTK MlSTI.KTOi;. until the suit was detenniiKMl. The judijo refused tlie ;iji- plieatiou for security for costs. Ji)hn Kerr for the plniutiti'. C. A. Piibmr for the vessel and owners. The following judi^nient was delivered by AVatteks, J. This is a suit hroui^ht by the master of tlic Mistletoe for wa<;:es and disbursements in which plaintiti' claims a balance of ^(^U.OH. The claim is opposed 1)} tlic owners of the ship who have appeared to the action, wlm set u]) atjainst jilaintitf's claim the amount of a bill of ex- change given by plaintitt'to T. C dones I'lt Co., of LiverixHil. Avithout instructions from owners, and for which judgment has been recovered at Liver[»ool by the holders, the Lancn- shire Colliery Association, whereby the owners allege they have suffered loss and damage. On the hearing it appeared that the ship of which idaintiti' was master arrived at Liverpool from Manila with a cargo of hem[> and sugar; that Messrs. T. C. Jones k Co., of Liverpool, under instructions from the owners at St. John. to whom plaintiff' was directed to report the ship, looked after the business of the ship at Liverpool, and collected and received the inward freight; that whilst at Liverpool, Messrs, Jones & Co., under instructions from the owners, purchased a cargo of coals, with which the ship was loaded and sent to the owners at St. John. No correspondence passed between the plaintiff' and the owners whilst the ship was at Liverpool, the business of the ship being attended to l)y Messrs. Jones k Co. On tlie 10th February, 1887, after the ship was loaded, and the day l)efore she sailed for St. John, Jones k Co. presented to \hv plaintiff for his signature the following draft, which plaintiff signed and left with Jones & Co. : £319 17s. 9d. Liverpool, 10th February, 1887. Forty-tive days after date pay to the order of the Lancasliire Colliery Association (limited) three hundred and nineteen pound.s. seventeen shillings and ninepence, value received in cargo coals per bark Mistletoe. (Signed) T. H. Corning, To Messrs. T. C. Jones i"es instituted by the master, the owners may (daim to ik'duct from his waives the amount of such loss." In consideriui^ the acts of the master, it must be remem- lioivd that nothinsess. (1) 3 W. Rol). 128. 126 VIClvADMUiALTY UKI/OliTS IHST 1,1 the case of The Oimilla (1), it was held that tieithir Tiij; error of judi^ineut or seamanship, nor neiifleet to coinimmi- MisTLKTOK. cute to Jjloyd's agent the strandinij; ot'tlie vessel, nor iioiiU'ct to sit^n a hottoniry bond, works a forfeiture of waives. The case of T/u' S!r ClHirlcs Xapln- (2), cited by Mr. JAiliner, the defence was that the master had so nei;-leet(;(l his duty as master of said vessel, and conducted himself so neij;liu;ently, that by his negligence the ship was wreckiMl and totally lost, but the case was decided on other grnniids raised on the pleadings. In the present case the business of the ship at Liveritool was, by the instructions of the managing owner, placed in the hands of T. C. Jones & Co., who were also directed to purchase a cargo of coal, which they did, and, as plaintiff swears, informed him that the coal had been bought on ship's account. The plaintiff, just before sailing, signed tlii' draft for the [)rice of the coal, the draft being drawn on Jones & Co. in favor of the vendors of the coal ; the plain- tiff appears to have done this in good faith, believing, as ho .swears, that it was his duty to do it. No Avilful neglect, corrupt motives, or collusion with the ship's agents are cliarged against him, and I certainly can- not, under the evidence, impute any such misconduct to him ; first, because lie signed the draft by the direction of the ship's agents; secondly, because he believed at the time of signing the draft that the coals had l)ecn purchased on the shijt's account; and, thirdly, because ho had the coals then actually on board of the ship. And neither does blame attach to plaintiff \ov not communicating to the owners tlif fact that lie had signed the draft, that being the; duty of the ship's agents when re[»orting to the owners their dral- ings and transactions for the ship. Foi' these rcasous I pronounce for the plaintiff's claim. and with costs, and assess the damages at 8 OF NEW BKUXSWICK. 12^ THE PLOVER — (^RossLEY. yfaski — Wo yea and Diabursemeuls — Takim/ Promissory Note — Lien on Ship — Not Waived. Tlie plaintiff brought nn action ngainst the P. for wages and disbursemenlH an master of the vessel. In answer to the master's request when abroad for a statement of his account and for payment, the managing owner sent tlie master liis individual promissory note for ?800, payable with interest, on account of the wages. The managing owner subse(iiiently became insol- vent. The master, on his return to St. John, N. f>., demanded payment from the owners of his wages and disbursements, the sum claimed includ- ing the amount of the promissory note. The owners, by their counter- claim, sotight to set-ofl' against the master's claim, among other things, the amouni of the promissory note; but Held: — That the master, under the circumstances of the ca.se, had not lost his lien upon the vessel. The set-ott' was rejected, and the plaintiff held en- titled to recover, with costs. Tliis was a cutise of subtraction of wages and (lisl)iii'so- lueiits instituted by .lames II. Crossley, as master, against tbe Canadian registered vessel Plover. It appeared by the evi- dence that the master was put in charge of the vessel in the year 1883, and continued in charge until August, 1887. During the greater part of his employment he was on dis- tant voyages, and for a portion of that time his wife and child sailed with him in the vessel. The defendants put in a counter-claim composed of several items, the principal of which, however, were for failure of the master to collect ten days' demurrage under charter party in 1883, at Carnarvon ; for board and expenses of the master's wife and child while on board ; and for a promissory note for S800, payable with interest, made by Mr. S. Schofield, the managing ow'ner, in favor of the master, and by him sent to the master. It appeared that the master, as early as 1884, and repeatedly afterward, had sent requests to the mamiging owner at St. John, N. B., for statements of his account and urging pay- ment. It also appeared that the inanaging owner, on one occasion, had written the master that interest would be allowed him on any money due and undrawn. In reply to I 1887 Nov. 1. 180 VICK-ADMIUALTV UEl'OUTM iss" one of tlic rociuosts of tlio iiiastrr, then abroad, for nn TnK account and ]»a_vinciit of liis claim, Mr. Sclioiii'ld sent liiiu Plovkk. his individual jtroniissory note, jtayaldo with interest, diittd July 1, IHS'). Suhsecjuently to ifivinu; the promissory iidtc the nnmaijcini;' owner became insolvent. I'pon the return nt the master to 8t. .John, \. JJ., in Auti'ust, 1JSM7, he dcmaiMUd from the owners tlie amount of his waives and dishuivi'- ments, and tin*eatened legal proceedings if not paid. At the trial the numaging owner testitied that, pending nei-d- tiations for a settlement, and prior to tiie commencenn'iit ot this suit, he said to the master, "You know you have no claim against the owners or vessel tor that S800," to which tlie nuister repliey the mas- ter. The di-nnirratfc cannot he chari^cd against the master; it is a (juestion of hiw tor the jtiorted deitriving master of lien, a settlement had been made. The Court must look at all the i-ircumstances. C. A. P'lhiicr, for the owners of the vessel, cites W. & Ih-iice, p. 207. T/><- Petmiyi and The Rainfjoir (3). A sea- man who consents to the deposit of his wages at interest, instead of receiving them when due, loses his right to pro- ceed against the shij). It was agreed the §800 note should remain at interest in the hands of Schotield. lie admits taking a bill of extthange for a debt is not payment of itself. 1887 Tkk I'l.oVKR. (1) 8 r. D. 48. (2) 5;^ L. T. N. S.91. (3) 53 L. T. N. S. 91. 132 VICE-ADMIKALTV UKPOKTS 18H7 Tick Plovkk. but in this ram the muster dealt witl» Scliotiehl as his hanker. At tlie time tlie note was i;iven the eredit of the latter was jUfood. To allow a lien now against the vessel tor that sum might work injustiee to innocent owners. The plaintiff, in August, 18H7, knew of Schotield's suspension, ami he then nnide no elaim for the $800 against the owners. The note transaction was purely between the master and Schofield. The nuister nuule numerous remittances to Schofield on account of ship after note was given, which he woidd not have done had he considered the $800 note an item of claim against the ship. No interest can be recovered; the nninag- ing owner has no right to bind owners for sucli payment. The nnister should be charged with tiie demurrage, which he sliould have collected, and the board of his wife must be deducted from his claim. W('f(/o)i, Q. C, in reply. Watters, J. There is no doubt but that the taking a ]iromissory note or bill of excliange in satisfaction of a lien will in general determine the lien. Whether certain facts make out an unarticn- lar transaction sluill settle a demand is not a (piestion of law ; such payment is a question of fact. The giving of a promissory note of a debtor for a pre- existing debt secured by a mortgage is oidy presumptive evidence of payment, and it is a (piestion for the jury, u})oii all the evidence in the case, whether the note was given and received in payment of the mortgage debt. Dod(/t' v. Eincr- son (1). The mariner's contracts (whether seaman or mas- ter) is a nniritime service, and both are presumed in law to engage on the credit of the shi)) ; tlierefore the maritime law gives a lien against the ship. Dixon Ship. 318-22, a/id before a seaman can be deprived of such lien by any alleged circumstance or transaction, both the American and p]nglisli authorities hold that the onus is upon the defendants to clearly prove that there was an express arrangement with the mariner to forego his right against the ship. 7V*c Jiain- bow (2). The evidence of the plaintiff and the managing (1) 131 Mass. 467. (2) 63 L. T. N. S. 91. OF XKW MUrXSWICK. 133 owtuT i\n not iiu'i't'c as to tlu' iiicoiition of the iiroinis-iorv IW note sent Ity Mr. Scliofu-ld to tlu' pliiiiititK Tlu' iiliiiiititr 'p„j; siiyn: '* I wi-oti' to Mr. Sclioticld lor my iiccoiiiit and rccciNt'd IMovku. •I K'tttT to send my account and he would pay it. I did so. and in rcjdy I received this note." Mi. Schofidd says lie is luiahle to prothn-e |ihiintitt"s K'tter to him, hnt that in it jdaintitK re(|uested him (Mr. S.) to send him his noti' tor jSSOi), payalde with interest, tor his waujes in '/'//< /'/urn-. Xow it must he rememhered that Mr. Schotii-hl was the iiianaifinij^ owner of 7'A<" /*/(trii\ ami that all instructions came tVom him, and all correspondence was held hetwcen him and the plaintill". Thi' plaintitl" _)oined 7'Ar Pfmur in Scptemher, lHS;j, and early in 1HH4 commenced writinLr Mi". .*>(liotield for a statement of his account. in May, 1SH4, Mr. Schotield wrote the plaintiff that ho would allow him intci'cst on any halance due. I'p to .Inly 1, 1^rtiii«!.»I(l, aiiioiint aHowcd tor hoard of wilt' and child diirini; the time tlii\ wvri' on l»oard the ship, hciiiir ^ii*!** p*'r month lor the twu. U'avinir a halancc of 81, 7-4. HO chu' the plaintill', lor wliidi I pronounce, and with costs. Dicfi I' (driH'i/iliijIi/. For cases as to ibrf'eitare of wages, see iu)to to T/it; MiMhfov, (tiife, p. l'J7. KX(}I,IHir CASKS. A niaritinie lien is a right to ent'oree hy action in the Admir- alty Court a claim against the /vw. It exists in the case of hot- tonn'y, The Itnyitl Arch, Swa. 2(i!);" Thr Dniid, 1 W. Koh, p. ."9J); claims for sah'age, The (iuxUif, Liisli. ")()(); damage hy collision, The Bold JIiicrfei(f/h, 7 Moo. r. C. 2()7. H. c. 22 Kng. L. ifeE<|.p. ()i); The Charles Amelia, L. K. 2 A. & K. .S3(); for wages of" seamen and master. The Nep- tune, 1 Hag. :iissession. clmiige or | i \\ mine a lien — tiilies a note lloineddle v. Ahl. 4!>7; bu loK! his lien o taking a note Miiiuunt hy d //*;/, 2 Uose, "J for rent does to distrain c lulls due. 1} &. H. 623. ^ lien by tak their clients. 'Old Dintrict T W.N. 44. W has been tern t'ull, prefers i on the owners inotlation, los '^hip and his OK NKW I'.Kl'NSWICK. IMS (•(»m»', ninl wIh'ii ciirritd into t'tllTf liy 11 |)i'(M'»'t'ilii-io(l wlini it tn>t iittuciu'tl; tlic Kti'iuncr wim lialilc tor tlu> (iuinii^'ci^ coiiiinittol liv Iter, tlioii^Mi ill tlif iiuiuls (it'll liiirclmsff wittioiit iioticf of tiic iliimiip', or tiif procti'cliiijis iii- >tiMit('(l apiiiist her. It .xcimis siicli lien ari.Hin^ oiit \n not iiidcliMc, liiit may ho lost l)y iH'jfli^ciicc or dtlay, ulicrc the rij:lit.- ol" third liaitit's arc coinproiiiifccL" At cotninon hiw what iis callrd a "lit'ii" is inon' strictly coii- -tnicd, and only exists wlu'ii tiic tliiii;,' is in actual or constructive piisscssioii. Takiii;; a hill ot' ex- riiaiiye or proiiiissorv note /';/ '(ttlnj'(icfio)i will in <,'eneral deter- iiiiiic a lion — so where a voiuloi takes a iKtte anri netrotiatos it. Uiiiiiviidlf. V. Farnai, o ]{. tt Aid. 4i)7 ; hut a vendor does not lose his lien on hi.s estate sohl, hy taking a note and receiving its amount l)y discount, ex p. Loar- inij, 2 Ivose, 7!'. Taking a note tor rent does not preclude right to distrain even hof'ore the note tails due. Duvig v. Gyde, 2 Ad. iV E. 623. Solicitoi's lose their lien hy taking security from their clients. Binsillw Bradford 'Old Didrid Tramivans Co. ( 1 H!)3 ), W. N. 44. Where a seaman, who lias heen tendered his wages in t'ull, prefers a hill of exchange 111! the owners for his own aocom- inodation, loses his lien on the >lnp and his right to sue in the Admiralty upon the inscdvoncy 1^M7 of the owners, and iion-payment -p,,^. ot'thel)ill. T/ir ]\'l//i((ni MitHf'i/, I'l.nyy.n, 2 Hag. 13(i. Mut when a miiMtor took a hill of exchange for wago>* and dishui'seiiu'iits, the hill hoing dishonored, he is permitted t:] L. T. N. S. IH. Whore shipowners, in answer to a claim for wages, plead au agreement hotwoon the managing owners and tlu; plaintitf that the plaintiti'shall, instead of receiving his wages, allow it to remain in the hands of the managing own- ers, and has tiiorehy foregone his right against the ship, the onus is upon the defendants to clearly prove that there was an express arrangement to that effect hefore the Court will deprive the plain- titf of his right. Under the pro- visions of sec. 187 of the Mer- chant Shipping Act, 1854, and sec. 4 of the Seaman's Act, 1880, 13(] VICE-ADMIUALTV KEPURTtS 1887 TnK Plovkh. as to the non-])aynieiit of wages, the right to recover ten no waiver of any rights against the vessel." A release under seal by a mariner on payment of his wages is only prima facie evi- dence of settlement, and may ho rebutted by other evidence. Thf David Pratt, 1 Ware, 4!>o (183!) i. By the common law a simple cun- tract debt is not extinguished by the creditor taking a new sociii- ity unless it be of a higher nature as an instrument under seal, or unless it be agreed to be i-eceivod in satisfaction of the debt. Tin Betsy ami Rhoda, 2 Ware, IK (1840). But by the local law ot the State of Maine this is changed, and yet the ])resuniption of the local law will not be enforced by the Admiralty against a .seaman who receives of the ownei-s their negotiable note for his wages. ibid. A iseaman taking the prom- issory note of the master, not ne- gotiable, and giving a receipt fur his wages and putting the note in suit, is not thereby prechKliil from proceeding against the vi:- sel for his wajres. The Harrlilt. OF XEW BHUXSWrCK. 337 1 Spraguc, 33 ( 1842 ) . The de- t'ciice was tlmt tlie mariner by taking the note and putting it in suit loses his lien on the vessel. S])rague,.].,held that the note was not ])aynient. It was not a prom- issory note in the sense t,f the law, and was uot prima facie evidence of payment. The master received no value for his release. The master, before the transaction, was liable for the wages, and un- til satisfaction and payment, the mariner might i)ursue any or all (if his remedies at the same time. The acceptance of a promissory note for sup])lies furnished will not he presumed to be a waiver of the lien upon the vessel there- for, unless so agreed at the time. The Eclipse, 3 Bissill, 9!) (1871 ). In Carter V. Townsend, I Clifford, 1. it was held, that a lien for re- pairs and supplies furnished at Norfolk, Virginia, on a ship owned in Maine, is not lost by tlio creditor taking bills of ex- change on one of the owners, wliich bills were produced to be surrendered or cancelled. It seems to be well settled that the ])arty claiming a maritime lien must either return or oH'er to return the note or other security accepted by him, or bring it into Court and surrender it to be can- celled. Taking a note and giv- ing time will not necessarily release the maritime lien result- ing from supplies furnished a vessel. One who is manager or part owner of a vessel should not be allowed a lien upon her to the 1^87 prejudice of outside lien hohlers. Z^ It is well settled that advances p and supplies made to a vessel in a home port are ))resumed to be made on the credit of the owners, and no maritime lien results. The queen of Sf. Johns, .'H Fed. Rep., 24. The mere giving of a promissory note by the debtor for supplies furnished a ship is no satisfaction of the debt, nor is accepting it a waiver of the lien tl'.o creditors mav have had there- for. The Active, Olcott, 28(i To the same effect see Tlie Kim- ball, 3 Wall. 37. The Supreme Court of the United States, by Field, J., in The Emili/ Souder, 17 Wall, at p. <)7() (1873), laid down the rule diat " bv the sen- eral commercial law of the world, a promise to pay, whether in the form of notes or bills, is not of itself the ecpiivalent of payment: it is treated evervwhere, in tlu' absence of ex press agreement or local usage to the contrary, as conditional jmyment only. On principle, nothing can be pay- ment in fact except what is in truth HlCll, unless ■jpec \a\h agreed to be taken as its e(piiv- alent." Parties, h(*wever, must not sleep upon their rights, and therefore it has been held that a lien for supplies to a foreign ship, must, as against a bona fide pur- chaser, be enforced with due dili- gence. Oenera llvit must be soon after the termination of the first i.ovi;u. voyage. An assignment of h IS 138 VICE-ADMIRALTY REPORTS 1887 TlIK Plovki{. claim by the creditor is not a waiver of the lien. The General Jackson, 1 Sprague, 554 (1854). While Courts of Admiralty are not governed by any statute of limitations, they adopt the prin- ciple that laches or delay in the judicial enforcement of iwaritime liens will, under proper circum- stances, constitute a valid de- fence. No arbitrary or fixed period of time has been or will be established as an inflexible rule; but the delay wiiich will defeat such a suit must, in every case, depend on the peculiar equit- able circumstances of that case. When an admiralty lien is to be enforced to the detriment of a purchaser for value, without no- tice of the lien, the defence will be held valid under shorter, and a more rigid scrutiny of the delay than when the claimant is the party who owned the property when the lien accrued. The Key City, 14 AVall. 6^)8 (1871). In The Bolivar, Olcott, at p. 477, Betts, J., says: "By the nuirine law there is no fixed period of time within which marinei-s must proceed to enforce their lien for wages, yet such lien will become extinct or barred by unreason- able delay, if the vessel passes into the hands of a bona fide pur- chaser, ignorant of such claim. A lien, which has accrued upon a vessel for supplies furnished it, is not waived or lost by the ac- ceptance of commercial paper belonging to the lessees of the vessel. The General Meade, 20 Fed. Rep., 928 (1884). The extent of a maritime lien and the rules governing its dis- charge or extinguishment are to be determined by the general maritime law, and not by the local law of any State. In The Chimin, 2 Story, 455 (1848), s. c. Myer's Fed. Decisions, vol. 23, at p. 250 of latter report, it is laid down by Story, J., that "by the law of New York, or by the law of England, and, in- deed, as far as I know, by the law of all the States of the Union except Massachusetts and Maine, which are governed by a some- what modified doctrine, a note taken in payment of a debt is ordinarily but a conditional pay- ment thereof; that is, it is an absolute pay mentonly when duly paid. The presumption, prima facie, in New York, is that a note taken for a debt is a conditional payment only; but this presump- tion may be rebutted by proof that it was taken as an absolute payment." In the case of The Napoleon, 7 Bissill, 893 (1877), s. c. Myer's Fed. Decisions, vol. 23, p. 256, it is held that in the absence of an express contract of waiver, a maritime lien is not extinguished by the acceptance of a note, and that a transfer of such note does not extinguish the lien. In the same case it is also held "that whatever doubt once existed as to the assignabil- ity of a general maritime lien. t OF XEW BUUXSWICK. 139 ilie<|nestion has been put at rest !iv repeated adjudications. The lien of a salvor on account of -iilvage service, of a mariner for watrt's, of a material man for re- jiairs or supplies, is strictly per- .Diial, and does not pass to his iisfignee. The same must be said iifa lien for towage. It is equally \Tell settled that an assignment ur tnmsfer of the claim which lonstitutes the basis of the lien, (Xtinguishes the lien." In The Smih J. Weed, 2 Lowell, 655 (l'S77), it was on the contrary held that by the maritime law a maritime lien is assignable. CANADIAN CASES. A maritime lien is not indel- ible, but may be lost by delay to enforce it, where the rights of nther parties have intervened. The Haidce, 2 Stuart, 25. In the case of The Aura, Young's Ad. Decisions, 54, the plaintiff was master and co-owner. He ac- cepted a promissory note from three of his co-owners for the balance of wages due him. The note was not paid, and he intli- tuted a suit iu rem against the vessel for the amount of his wages, and for which the note had been given. Prior to the beginning of the suit, the ship had been sold to a third [)arty, and paid for by him, in ignor- ance cf the master's claim. Held that the master had not lost his lien against the vessel, and his claim was pronounced for with costs. Except in the case of bottomry, a r.iaritime lien is in- alienable, and cannot be assigned or transferred to any other per- son so as to give the transferee a right of action In rem as such assignee. The Cihj of Manito- woc, Cook, 185. 1887 ^.— ' The I'lovkr. l^ 140 VICE- ADMIli ALT V UKPOIiTS ■ii'. 1S88 THE 8T. CLOri), ITER CAUUO AXD FKEKiUT. Jmie 15, Sulvtuje Services — Rei/iiiKiles of — Towage. Tl" St. C. havinj!; sailed from St. John, X. B., with a cargo of deals, hoimd tor Liverpool, went ashore at Dipper Ilurhor, about twenty-live or thirty miles below St. .John. Tlie siiiij's ayents, at the latter place, engaged two tugs, the S. K. and the L., to go down and pull her oil'. For this scrvia they were to receive an agreed sum, and the S. K. was to receive a fuitliei sum, in case the vessel was got ott", for towing her hack to St. John. Wlitn the tugs reached the ves-liiiiu'e> were needed, and the S. K. returned to St. John for a steam pump ami other appliances. The L., by the recpiest of the master of the vessel, re- mained to tend on the ship. During the absence of the S. K. the vessel was floated, and through the exertions of tlie L. the ship was prevented from going on the rocks. Held: — That tlie services rendered were more tiian towage services, and that the L. was entitled to salvage reward. In this case Ji smnnioiis /// nnn was served ii[k)ii the ship 8t. Cloud, of l')00 tons burthen, and of British rei:;ister. Tlic ehiini was for )$l,oOO for salva_ij;e services rendered the 8t. Cloud the ^nd and 3rd days of January, 18H8. The ves- sel, deal laden, sailed from the port of St. John, X. !>., Dec 30, 1887, hound for Liver})Ool, Great Britain. On Januiirv 1, 1888, the vessel got Jishore at Dijiper Harbor, ahoiit twent^'-tive or thirty miles from the port of St. John. The master of the vessel went ashore at Di[>per Harbor and tel- euraphed the fact (^f the disaster to \Vm. Thomson & Co., tlie ship's agents at St. »John. The agents at once arranged tor two tugs, the Storm King and the Lillie, to proceed to Diiiper Harbor for the purpose of pulling the vessel off the beach. The arrtingcment between Ca[)t. Ferris, of the Storm Kiui;', and Mr. R. Thomson, a mend)er of the firm of Wm. Thom- son k Co., was that the Storm King was to be paid 1$H0 for a satisfactory trial to get the vessel oif where she then lay iit Dipper Harbor, and if she came otJ', a further sum of -Slo" for towing her to St. John. At the suggestion of a repres- entative of one of the insurance companies, the tug Lillif was also engaged to accompany the Storm King, and was to OF NEW BRUNSWICK. 141 rewive SoO for a satistiictory trial in trying to get the vessel 1^88 ort'. The only arrangement made about the Lillie was that Tn^ Aw was to go down and make a satisfactory trial in aiding St. Cloud. to got the vessel off. Nothing was said about any towage fcrvice on the part of the Lillie. The two tugs went to ])ip[»er Harbor and got alongside the ship at the night tide (it" January 2, between 11 and 12 o'clock. They remained by her all that tide, but were not successtnl in moving the vessel. It was then thouglit best, after consultation between the master of the vessel and Capt. Tliomas and Mr. Cowie, the rci>resentatives of the insurance companies, for the Storm King to return to St. John for a steam pump and other ap- pliances and more men. At the request of the master of the vessel, the Lillie agreed to remain and tend upon the ship (luring the absence of the Storm King, for $50 a day. The Storm King accordingly left for St. John, and while absent, Ir; putting out a warp and kedge anchor, and other means ill hand, tin; vessel was floated and towed out to the middle of the harbor. A fresh l)ree/e sjtrang up, which carried her over to the eastern side of the harbor. The tug got along- Mdo of the vessel, put a line through the bow pipe and kept her off the rocks on the eastern shore. In going ahead the tut;: l)roke her hawser, but the ship now took a start toward tilt' western shore, and when about two-thirds of the way across, the wand took her out of the harbor. The tug then tlistoned a line to her and started with the vessel for St. John. The Lillie, with the vessel in tow, met the Storm King returning near Musquash, when she was handed over to the latter tug, and finally towed to the port of St. John. The ship in her damaged condition was valued at $15,200, the cargo at $12,800, and the freight at $7,000, or a total of S35,000. It was also in evidence that the Lillie was -49 tons register, five years old, and originally cost $7,000. It was also admitted that both tugs were owned by the New Brunswick Trading Company, the plaintiffs in the action, ii fluly incorporated Joint stock company. The defence was that the Lillie should onl}- be paid for towage services, hut it was held by the Court that the services rendered were I'eal salvage services, and the promovents were awarded $700 and costs. 142 VICE-ADMIRALTY REPOIiTS 1888 (\ W. WiU>,>, Q. C, for the plaintiff, the tii^r Lillie, citt.! ^; T/>e Mim>ehah,i (1), The White Star (2), Thr J. C. Pottrr (3,. St. CLoun. 77/r Jtdnlec {A), 77/( yl//m/ (o), Pritch. Dig., sees. 751, THl. 7h;{. /•'. i?. Biir/:c}\ Q. C, for (U'feiuhnits, argued tliat tliese ciisis eslnhlisiied that wlien tliere is an agreement for either tow- age or salvage it will be enforeed, provided in carrying it out no unexitected einnnnstanees arise outside the eontenii>lati(iii of the parties at the time they made the agreement, in whicli ease the Court can give additional rennmeration, otherwise the agreement will he carried out. Salvage services niay arise during towage service which would justity tug al»iiii- doninu' the towaii;e and claim remuneration for salvaiiie. Tin Mhniehaha is a case in point. The service rendered by the Lillie was within tl:e agreement made witii the shift's agents. The tug was in the employ of the ship at $50 per day, and the ship was entitled to have her services for the full tiiiR-. as agreed. There were no peculiar circumstances in tins case to warrant salvage reward. ^Vd(l(m, (J. C, in reply. Dr. Barker has not given a proiior view of the evidence. The tug is not re([uired to tow at all hazards. The engagement was at an end by sending the tStorm Kinu; to St. John. Then another arranfjement wiis filtered into. The plaintiffs are entitled to recover for tow- age, and subse(piently for salvage. The Lillie is entitled td pay for risk run. The master of the ship wanted the Lillie to tow the ship. The exertions of the Lillie kept the vosslI from the rocks on the east shore of the harbor. In doiiii,' that the tug undertook a greater risk than mere towage ser- vice. Without the aid of the tug, the vessel in her disabled condition could iiot have got out of Dipper Harbor, and look- ing at all the circumstances it is evident the services iiei- formed were different from those contracted for, and were such as to entitle the plaintiffs to salvage reward. And now (June 15, 1888), the judge having taken tinir to consider, delivered the following Judgment : (1) 4L. T. N.S. 411. (2) L. K. 1 .\. & E. 68. (5) 50 L. T. 511. (3) L. R. 3 A. iV: E. 292. (4) 42 L. T. 594. OF NEW BurxswrcK. 143 Wattkks, J. rndor the ovidt'iico hotoiv tho Court, I am 1S88 of o})iiiioii that the tiii; Lillie had not enturL'tl into any oon- tiik tiiU't for towai^e service. She was sent down to l)iin»er Sr. ('uni>. llarl)or simply to ai says he then called out and asked the tug if he could tow them to St. John ; being answered in the affirmative, he ordered the 144 VICE-ADMIUALTV REI'ORTS IHHH tnjr to ^o uheiul. Tlie tug at this tiiiiu liiul the sliip hy the Thk stern ; in going iiheail tlie hawser parted, and the ship was St. ("i.orii. heing driven hy the t'oree of tlie wind towards a pile of rocks on the east sicU; ot the h..rljor. The tug then steanud hanl and came ui> on the shii>'s starl)oard side, hetween tin- ship and the reef, and threw a line to the sliip, worked Inuk', and got the ship stopped just as she touched the rocks. Then the line hroke ; another line was then got out trdin the ship's how to the tug, and nhe then towed the ship clear of the rocks into the middle of the harhor, then the slii|t took a start towards the other shore when the line parted, and she had got ahout two-thirds over to the western shore when the wind took her again and started her out of the harhor, the tug again ijot alongside and got a line from the ship's hows, which was joined to another [)iece from the tug, making a short hawser not over fifteen fathoms long, and with this the tug towed the ship out of the harhor and n\> the Hay until she met the tug Storm King coming hack, which took hold of the ship and hrought her into St. Jolui harhor. I cannot view this service of the tug Lillie as other than salvage service; at Dipper Harhor the ship, nfter she was floated off the beach, was powerless without anchors to i)n)- tect herself, she was tilling with water, and was in a harl)or where she would ground in any part of it at low water ; when she was blown towards the rocks on the eastern side she was only rescued by the extraordinary eftorts of the tug, which ex[)Osed itself to peril in its efforts to save the ship; the captain of tlie lug says he had to run sharp to clear the ship from the rocks, and if anything had then happened to his machinery, the tug would have gone on the rocks. It is ver}' clear that this Dipper Harbor was a dangerous place for the ship, and that it was necessary for her preservation that she should be got out of it, but without the aid of the tug this was impossible; the work of getting her out was und /taken by the tug with the only remaining hawser, which was quite too short to tow such a ship with safety, nevertheless she succeeded in towing the ship along the coast of the Bay of Fuudy until she delivered her to the tug Storm Si OF NKW mirxswicK'. 145 K'iiijr. HikI tlic Lillii' not iiinU'i'tiilst'ii this service, tliu ship l udiilil evidently \\i\\v cithci' hccii (h'ivi'ii ashore iiu'jiin in 'y .S88 MK hi i|ter II; irl)()r, (»i' Itei'ii hlown out to sea hvtl u' st roll t; west- St. (1,1)11). \y wind, which all say was then hlowinii' fresh. All the irk (lone hy the Lillie, iVoiii tlu' time the ship tloated until -lie was taken in tow lt\' the tuij Storm Kiii<:', I take to lie \V( the per for iiiance ol a servn'e (|mte lieyond tlie scope o (I th )f I u'r iirraiiireiiieiit made with the captain of the ship, which was to tend upon the ship whilst she woidd he lyitii:: in her first position in Dipjiei" Ilarhor, or nntii the additional help sent for hy the Storm Kin*;' would have relieved her from the pliiee on which she had i^i'oiinded. W her services led to the lie of the shiii, which I helieve tliev did, she shoidd he rcsr I'ciiiiinerated as for salvaye sorvices. Ill salva_i!;e cases the estimate of romnneration is i:;overned liv the peculiar circumstances of each case: it is not merely |i;iyiiient for work and luhor; uiuny t)iini!;s may he taken in- tii consideration — the season of the voar, the state of the Weather, the dei:;iH'e of dama_!i;e and daiiii;ei' as to the shi[) ;iii. In the I'liited Stalo it lias Itcfii held that salvage i> (compensation for actiuil service rendered to the property charpd with it. Tdfhof V. iSt'oiiiin, 1 Cranch. 1 ; to constitute a viilid claim for salvage there must In a marine peril, voluntary ser- vice not owed, and a saving <>( the propi-rty or .some portion df it. Ni-m York ILirhof PruiecHun Co. v. The Clam, 23 Wall. I. See The Neptune, 1 Hag. 'SM\. The efforts of the master suid .seamen to save their vessel fnun disaster would not constitute :i salvage .«ervice, as their i" (►F XKW BKINSWICK. U7 (U-*<'s of sliipwrcck, (U'rclicts or rfnipturc. Succcsh is csweiitial til tilt' c'laitii ; lis, it' the |»n)|H'rty is not saved, or if it perisli, or in case of captiiro if it is not rc- tiikoii, no conipcnsation can hv allowed. Mon^ than one set of salvors, howevi-r, nuiy contrihute t'l the result, and in such eases all who engaged in the I'nter- piise and nniterially contributed U) the savin;; of the property arc entitled to share in the re- ward which the law allows for such meritorious service, and in pioportion to the nature, dura- tion, risk, and value of the ser- vice rendered. Myer's Fed. Dec, vol. 2;}, p. M28. Salvage is also detined to be a eoniiwn- sation to he made by the ship- owner or merchant to other per- «oiis, by whose assistance the ship or its lading may be saved from impending j)eril, or recovered after actual loss. The policy as well as justice of awarding such a com])ensati()n is so obvious that it has been in all ages al- lowed by the codes of all civil- ized nations. Salvage may be- come due upon rescue. The Edwnrd Hawkins, Lush. 515; s. c. 31, L. J. Ad. 40, either t'nun the perils of the sea or from the hands of enemies. 13 it 14 Vict., c. 26 ; 27 & 28 Vict, c. 25, ss. 40, 41. The property in respect of which salvage is claimed must be salved or saved. Smith's Merc. Law (10th ed.) •'Sit. Salvage is an allowance made tor saving a ship or goods, l^SS or both, from the dangers of the -pm,. seas, tire, pirates cm* enennes ; Sr. Ci.oi.'i). and it is also sometimes used to signify the thing itself which Im saved. Park on Mar. Ins. (5th ed., 1M02) 131. It is in the former sense in whi(,'h it is con- sidered in this note. The justice and propriety of making an al- lowance for salvage services nmst be evident t(» all. Those wh(» rescue life (»r property from im- minent peril, at the risk of their own lives, should be encouraged by liberal rewards. And hence it is th'it from the time of the Ilhodians to the present all maritime stales have made regu- lations respecting rewards for salvage servici^s. liy the law of Rhodes, the rate for salvage ser- vices in several instances was fixed, sometimes at a fifth, some- times at a tenth, antl at other times at one-half of what was saved. The laws of 0/eron, on the other hand, left it to the Courts to award such amount in each case as they should deem fair and reasonable under the circumstances, having a due re- gard to the risk run, the service performed, and the ex])ense in- curred. The law of Kngland has followed the laws of Oleron in declarh^g that reasonal)le sal- vage only shall be allowed. The statute 27 Edward IIL, c. 13, was passed to suppress the plun- der of wrecked vessels, and to limit the exorbitant demands of ,1 iir 14H VlCivADMIkAI/rV |{i:i'(H{TS 18S8 those snvliij; properly. Hut the -JPiij. ehief emictrneiit lertptMiiiijr .-iil- 8t. Ci.ni II. vaj,'(f is toiiiid in the statute I'J Aliiie, e. IM. fi. 2, uikI this wiis iiijidc perpetiml hy 4 (Jeorj^e I., e. 1'2. 'Iheii roiiowed 2 of rendering assistance. Tic A/hion, Lush. 2iS2 ; coiiiiiiiini- catingthe fact of salvage services being refpiired, T'lf Oinui, 2 W. Kob. 91 ; saving lives and property from a ship on lire. Thr KdMtrni Moiinirh, Lilsli.Ml; services of a third vessel in carrying orders from a siiiviiii; ship. The Cndituntcd, Lush. DO; raising a sunken ship. The Catherine, 12 dur. <)82 ; iyiiii: alongside a vessel in a gale iit iier reipiest to assist if needed. The Undaunted, Lush. !)() ; .se also The Philotaxe, 2! I L. T. 51'); rescuing a ship from heiiii: plundered by natives. Pli Lady Womleij, 2 Spinks 2o.') ; saving and preserving wreck, services performed on land to a ship or goods rescued from sea perils. The Mury Ann, 1 Ua^'. 158 ; rccapturiiig ship or goods from pirates or nuitineers. Th Treimviiey, 8 C. Rob. 21»); or from an enemy. Giving infor- mation of the position and danger of a ves.sel in want of assistaiiec will entitle to salvage reward. The Sarah, 3 P. D. .'59 ; see also The JV<7e, L. R. 4 A. &E. 4411: also instructing a ship as to what measures to adopt for her safety. The Eliza, Lush. 5.3<) ; but mere- ly giving information as te (»F Ni:\V iSliCXSWICK. Hi) locality irt nitt sufHciciit. Thr l.iltif ,/oi\ Lll.-li. i^N. Siiccfss \a ilii' iiiiiiii grniiiiil nil wliifli n silvairc rcwnnl i.s j,'iveii. Tlir LnvkwiKtilii, !) ,Iiir. 1017 ; to tlic •;iiiit<'lH'ct. T/ir Kihi'iird llnu'k- iit--<, Liisii. .")l(i. As ti fjciii'nil iiilc, a iiit'ic allciiipt to sav(! livis or property, howcviT iiicri- iiiiiiiiis, or wliati'vcr (lt'^'r«'i; of ii>!i or (liuiiajijc may have lu'cii incurred, if iiiisiiccessfiil, fiir- iii-lics no title to salvatre reward. ■/'/- /rj>/i,/nt.^, 1 W. K,,l). :!l>!». Ill 77i« LJnihtiiiitril, Liisli. !)(), it «;i- held that etfort!* to givo a.s- M'laiiee under an enifaLreiiieiit to a >liip in distress will, altlioii^di llic .'hip rceeivt'f* no l)en'j(it from ilii 111, he rewarded as hein^ in ilic nature of salvage servicer, if ilii' ship is otherwise saved. Hut ulicre a tug, under a contract to tiiu another vessel from sea into ilnik, was nblo to save the ship tViiiii a (Uinger resulting from a iiii.«liap to aiKjther tug, it was licld that as there was no iinme- iliate danger to the shi]) or risk to the tug, there could be no olaii'i for salvage, The Liverpool (l.^!i;5), P. 154. The comlitions ivi|uired to engraft salvage on to towage are considered in this caiie. Where salvors enter intf) an nj:reenient to take a disabled vi'SHcl into harbor for a s[)ecified ■■'iiiii, and do all in their i)ower to perform tl^eir engagement, but ill consequence of an adverse (hange of wind fail to fulfil it, they are nevertheless entitled to 1H,S8 salvage reward, per Sir Itobert -j.,,^, I'liillimore, in Thr Azttcn, 21 .'), held that where a steam- ship has been engaged to render assistance to another in distress by towing lier to lii'r port of iles- tination,and after several hours' towing the ships were parteil bv no fault of the salvor, and the conduct of the ship in distresH leads the salvor to the honest belief that his services are no longer retpiired, and thereupon the latter proceeds to her own destination, he is not thereby de- prived of his right to salvage re- ward, but upon the other vessel arriving safe in jxjrt by her own exertions, may proceed again.-t her in respect of the si'rvices actuallv rendered. The a^ree- ment of a masti'r of a ship in distress, as to salvage, will gen- erally be upheld, unless fraud is proved. The Kinirij, lo ,Iur. 1«:}; s. c. 2 Eng. L. tV: Eq. oCA. Where salvors on l)oard a ves- sel voluntarily abandon her, they forfeit any right they might have to salvage reward. The Killeenu, (yV.l).VX]{\SH\). SirRol)ert I'liillimore in this case cites, with approval, the decision in The Undaunted, supra, and the lan- guage of Lord Stowell in The Jonge Hasttaim, 5 C. Rob. 324. A steamship was rc(]uested by another steamship in distress to M • VI y /:* 150 vicp:-admikalty rei/oiits 1888 The St. Ci.oi'i). stand \yj iicr. An agreement was accordingly iiK^do between the two musters, for a fixed sum, that tlie sound vessel would stand by the injured one till she was in a safe position to get to port. The sound vessel remained by the damaged vessel till the latter was about to sink, when she took her crew on board, and the damaged steamer inuned lately afterwards sank. The owners, master, and crew of the salving ship brought an action for life .salvage, but it was held that as no res was saved the action would not lie either as a salvage action simply, or on the agreement, llic Renpor, 8 P. 1). 115 (188)]). At p. 117. Brett, M. K., delivering the judgment of the Court of Appeal, says: "It is said that under some circum- stances if life is .saved after the services of the salvors have been recjucsted by the master uf the ship which is in danger, the ship- owner is bound to pay salvage, althougli there is no res saved, and Tlie Undnnnted, Lu.sh. 90, has been cited in support of this ])ropositiou. The E. ['., 1 Spinks 68, has also been relied on as an authority in favor of it, more es- pecially a dictum tJ'Dr. Lu.shing- ton, which is to be found in that case. But The l^ndminted is really no autliority in favor of the plain tift.s' contention, because in that case the shii) was .saved, and therefore there was a fund from which i)ayment could be made. The tjuestion was then rai.sed whether the plaintiffs could be paid out of that fund, and it was decided they could, because they had exerted them.selves td save the ship at the reciuost of the master. It is unnecessary for us to .say if we agree in that decision, but it in no way broke the fundamental law of the Ad- miralty Court that something mu.st be saved in order to L'^ive valid grounds for a sal vageacti( 111. The E. U. is a .•similar case, hut there a supposed case is mentioned by Dr. Lushington which is said to support the plaintiffs' conten- tion in the ])resent case. If Dr. Lushington did state this sup- posed case as containing liis view of the law, it is contrary to what he had laid down before, and if it does, with all due res- pect for his great authority, I am unable to agree \>itli it. But I doubt if it is an exact statement of that learned judge's opiiiou, and the cases of The FmUirv, Br. & Lush. 350 ; The Zephj)\ '1 Hag. 48, and thetW/v/o e.ct^ehillei\ 2 P. D. 145, are contrary to it, and support the rule that some property nuist be saved to give rise to a claim for salvage." Flie learned e. A moiety of the |'ioi)erty saved, with costs, is tile maximum of remuneration lluit can be allowed to salvors; :iii(l this ndf applies to Vice- Admiralty Courts abroad. It ^ipptai's, however, that this rule li'is II, it obtain in derelict. The liic". Swa. ;)7(); s. c. 12 ^Foo. I' <'. \x\). See also The X7vs- 1888 perance, 1 Dod. 49 ; The Frances Mary, 2 Hag. 1)0 ; The Seindut, ^^^^, L. R. 1 P. C. 241 ; The liasche, st. Ci.oui.. I„ R. 4 A.&P:. 127. A higher rate is generally awarded to steamer.5 than to other vessels. The Kenmure Castle, 7 1*. 1). 47. SALVAGE OF LIFK. The Admiralty Court prior to 184<) haon on Salvage, 4fi. The Wl/lein J J I. L. II. .'} A. & E. 487. The own- ers of a ship or boat will not he liable for life salvage where none of their pro])erty is saved. Thr Oirgo e.r Sarpedon, 8 P. D. '2X. See also The' Carr/o e.r SchlUrr, 2 V. D. 14."); The Renpo)\ S P. D. 115; The Annie, 12 P. I). 50. In the latter case the (k-- fendants' vessel, through cdl- lision, was sunk in the Thaniori by the fault of another vessel. The Conservators of the Thames, under the statutory authority given them by 20 tt 21 Vict., c. 147, s. 86, raised the wreck and sold it ; the proceeds wore insufficient to defray the ex- penses, and under sec. 86 the Conservators recovered the ili- ficicncy from the defendant-. An action for life salvage wiis instituted against the defend- ants' ves.sel, but it was held that the salvors could not reco% r, as no property was saved. Sir James Hannen, in deliveriiiL' judgment, said : " I feel no donl)t as to this case. There can he no claim for salvage services against a person ; somethiiiL' must be saved to which the claim can attach. In the ])res- ent case Ihe Annie was not saved; yet those who claim sal- vage do so in respect of a liK salvage service." In the Ameri- can Admiralty it has been held that there is no .salvage for sav- hig life alone, but saving lite OF XEW inU'XSWTCTv. 1.33 t'liliiUiec:^ the aniouiit of salvage for saving jji-operty. Cohen, Ad. Law, 45) (1888). The Em- bkm, 2 Ware, (>« ; The George Xiclio/.'ion, Newberry, 44!l ; The B'lstoiu 1. Sumner, .'528. In The 'HijmoHth Rock, 9 ]'Y'(1. liep. at p. 418 (1881), Brown, J., said: "On the other hand, the large luimher of j)assengers whose lives were involved in the safety of the vessel is in this c't.^e an im- portant eonsideration, although by the general maritime law, aside from statute, the saving of human life, dissociated from die saving of ])roperty, is not a subject of salvage compensa- tion, but left to the bounty of individuals ; yet, when con- nected with the rescue of pro- perty, it is uniformly held to enhance the meritorious charac- ter of the services and the con- s(,'([uent remuneration. The Aid, 1 Hag. 84 , The (^iieen Mab, W Hag. 242 ; The Emblem, Daveis' Rep. 61 ; The Fmilicr, ,3 Moo. P. C. .51 ; Marvin on Salvage, a'c. 121. Life salvage is now expressly provided for by the British Merchant Shipping Act of 18.54, ss. 4.58, 4.51); but we have no similar statute in this country." It will be noticed that this statement of the law corresponds with that in force in England prior to 1840. FOUFEITURE OF SALVAGE. Misconduct or negligence on tlie part of the salvors may in- duce the Court to reduce the 1^>'^' amount of salvage, or to refuse j~^. it altogether. Violent and over- sr. I'l.ori). bearing conduct on the part of the salvors will operate to dimin- ish the amount of salvage. The Marie, 7 P. D. 2().'5. In The Yan-Vean, 8 P. D. 147, refusing to allow the maeter on board his ship worked a forfeiture of sal- vage. Want of skill in mameuv- ring the salving vessel was held a sufficient ground to diminish the amount by one-half The Ihvlua (18U2) P. -58. Salvors forcibly jjreventing the mate and two of the crew from going in the boat with them were de- prived of all salvage, and the suit was dismissed with costs. The (kipeUa (1802) P. 70. Hoth salvors and finders are under an implied obligation to use good faith, honesty, skill and energy. The Ida L. Howard, 1 Low. at p. () ; mismanagement, or unskilfulness, (»r gross negli- gence on the j)art of the salvors, seriously and injuriously delay- ing the rescue, niay reduce, or even forfeit, the compensation, although the property may ulti- mately be brought safe ashore. The Katie Collins, 21 Fed. Rep. 405); there must be good faith, meritorious service, complete res- toration, and incorruptible vigil- ance en the part of the salvors. Cromwell v. The Island City, 1 Black, 121 ; so also spoliation or gro.ss negligence will work a for feit. The Bella Corrunes,() Wheat. Mi ■V? ■■•i, 154 VICE-ADMTKALTV KKl'ORTS 1S8,S Thk St. Ci.oti) 152. The same result may fol- low upon evidence of an intent to eml)ezzle. The Siimner, 1 Brown, 52 ; but to cause a for- feiture of salvajj;c there must be evidence of misconduct on the part of the salvors. The thoughts or desires of salvors are inuna- terial, unless their conduct l)e influenced thereby. The C/icro- kec, 81 Fed. Rep. 167. An in- tention, however, on the ])art of salvors not to perform all the service re(|uired by the shij) in distress, or to protract from im- proper motives the duration of the service, will entail a forfei- ture of all right to salvage. The Miujihilau!, ?A L. J. Ad. 22 ; s. c. 5 L. T. N. S. mi. lint in all cases the evidence of miscon- duct must be conclusive to in- duce the Court to deny or diminish the amount of sal- vajje remuneration. The Cluirles AdolpJie, Swa. p. 15(1; and the burden of proof is on those alleging misconduct. The AihiK, 15 Moo. P. C. :}2!l; ,s. c. Lush. 518. 8ee The G/urii, 14 ,Jur. ()7() ; s. c. 2 Eng. L. & E.i. 551. I'l.KADINCS, ETC. In salvage suits it is desirable, if not nece.-^sary, to state the leading details of the service more at length than indicated l)y the Rule.'^. The hii.S V. D. 227; and to introduce into the staten'<'ut of claim as many in- gredients of a salvage service as possible. See The Clifton, 3 Hag. 120. The ship salved should not be arrested for an exorbitant amount, as the sal- vors thereby run the risk of being condemned in costs for ])rocuring bail for such an amount. The Geonje Gordon, !> P. I). 4(5. Parties will not usu- ally be allowed at the hearing to contradict their aftidavits of value. See The Hanna, \\ Asp. 503 ; .s. c. 87 L. T. N. S. 8(i4. If the plaintiffs think the dc- fendants' aftidavits of value un- satisfactory, they should take out a commission of appraisement. The Varuna, W. & Br. 42!) n. Fair and reasonable agreements fixing the amount of .salvage will generally be ui)lield. Th Tnie Blue, 2 W. Rob. 17(5; but such agreements may be set aside as ine(|uitable. The Medina, 2 P. D. 5. See also The Silesin, 5 P. D. 177; The Monarch, 12 P. I). 5. Where the defendants admit the allegations of the staiement of 'claim, the action is tried upon the i)lea(lings, and the partie" are precluded from calling any evidence at the hear- ing. The Hardwlrk, i) P. D. 82 ; an adm'i.-sion of the facts alleged, but a denial of the inferiiiici's of fact set forth in the statement of chum, will enable the plain- tiffs to call evidence to establish the inferences. Admissiiin by pleading extends to matters of fact, but not of law. The Peerlens, Lush. 108. Salvors can- not proceed against the ship and OF NEW BRlTNSWrCK. 155 cargo in rem, and in personam a^Miiist the consignees of cargo ill the same lihel. I'he Sabine, 101 U. S. US4. Clittbrd, J., in delivering the judgment of the Cmirt, at p. 388, says : "Actions ('/( rrm are prosecuted to enforce ii right to things arrested to per- fect a maritime privilege or lien attaching to a vessel or cargo, or hoth, and in which the thing to he iiKuie responsihle is proceeded UL'ainst as the real party ; but actions in, personam are those in which an individual is charged liorsonally in respect to some matter of admiralty and mari- time jurisdiction. Both the pro- cess and proceedings are diH'erent, a id the ajipropriate decree in the one might be absolutely absurd in the other." It was held in The Hope, 1 W. Kob. 154, that an action in personam cannot be engrafted on one in rem. But wliere there is a remedy both in pti-Konam and in. rem, a person wiio has resorted to one of the remedies may, if he does not get tliereby fully satisfied, resort to the other. The Orient, L. R. 3 P. C. ()9(). Salvage suits may lie consolidated on the motion of the plaintiffs, and without the consent of the defendants. The Melpomene, L. R. 4 A. & E. 129. In Houseman v. The North Caro- liiKi, 15 Pet. 40, (he Supreme Court of the United States held that the Admiralty Court alone has jurisdiction to try a tjuestion of salvage. But it has been held bv the 1H88 Supreme Court of New Bruns- wick tliat while (piestions relat- yp. (, ing to salvage can usually be better adjudicated upon in the Admiralty than in any other Court, and, where apportionment of the amount among several claimants is asked for, it is prob- ably a matter exclusively within the jurisdiction of the Admiralty Court, yet where the claim is simply for salvage services, and no '(uestion of apportionment arises, an action at law can be maintained, per Allen, C. J., and Wetmore, J., Weldon, J., dis- senting. Copp v. Read, 3 Pugs- ley, 527 (IMO). This question has recently been under consideration in the Courts of Ontario. A vessel was stranded on the northern shore of Lake Erie. The mas- ter telegraphed to the manager of a wrecking company at De- troit for tugs and wrecking ap- pliances, which the niutiager, by telegram, agreed to furnish. They were accordingly sent, and the stranded vessel was saved. The plaintiffs claimed to recover an amount exceeo6/;, 110. R. 408 (188(5). The point as to jurisdiction does not appear to have hecn raised, ex- cept as to the amount of damage to he allowed, which was award- ed under the Admiralty rule. Under the provisions of " The Wrecks and Salvage Act," c. n5, .sec. 24 (Can.), now R. S. C, c. 81, sec. 43, it is provided that when any ship within the limits of Canada is wrecked, ahan- doned, stranded, or in distress, all salvage .services rendered shall he payahle as are reason- ahle under the circumstance.- ; hut under sec. 50 of c. 81 it is also jlrovided that nothing there- in shall he taken to affect the iurisdiction of anv Court of Vice- Admiralty in Canada in any matter or case, civil or criminal. In salvage cases there is no rule hinding a Court of Appeal not to interfere with an award unless the amount is so large or so small that no reasonahle per- son could fairly arrive at that sum ; hut the amount awardtd will he diminished or increased if, after a careful cousidera^ioii of the facts, and after giving every possible weight to the view of the judge, the Court is of tin- opinion that the amount is so large as to be unjust to the owner of the ship which has been in distress, or so snuill as to he un- just to the salvors. The Acco- mac (18i»l), P. 34i). See also The Lancaster, \) P. D. ] 4. OF XHW lUirXSWICK. 157 TIIK EXlU(irK — AniUASTdU. Personal Injury — Jurlmliclion — 20 Vict., r. 24, ner. 10. A fort'ixn steaiiisliip, tlie E., wliile in llie Iiarbnr of St. Jolin, X. B,. Idading a cargo of deals, houglit and received on board a (luantity of coals for tiie use of the ship. The coals were |)iirchased to be delivered in the blinkers of the steamer, and the coal merchant emphiyed a third party to put the coals on board. The steam power to hoist the coals on board was furnished by the E. The plaintKl' was employed by the third party to put the coals on board, and while so employed was injured by the breaking of the hoisting rope. Held : — That an action could not be maintained against the steamer; that the Court had no jurisdiction ; and that the Vice-.\diuiralty Courts .\ct, 18t)3, sec. 1(1, sub-sec. (1, did not confer authority to entertain such an action. A tbreio;!! stcaiiislii]), the Enricnic, htiilino; from Jiilhoa, ill Spain, was in tlie liarl'or of St. Joliii, X. H., in Aui^iist, 1SS7, loading ji eari^o of deals tor Europe. While there it hecame ne<'essary for her to pnrehase a (pntntity of i-otils for the ase of the ves.sel. The eoal.s were pnrehasud from a coal merehant of the plaee, and it was a part of the contract iif i>urchase that he shoidd deliver the coals on hoard into the l)nnkers of the steamer. The cotil merchant, Bushy, eni- jiloyed a third i>arty — Callao-han — to deliver the coals on hoard. Calla|L:;han employed and paid the men engaged in the Work of delivering the coals to the steamer, and with others, •huiies Kverson, the plaintiff, was employed by Callaghan to imt the (;oals on hoard. The steamer furnished the steam liower to hoist the coals in tubs from a scow alongside to tile vessel. The steamer, it api)eared, supplied a derrick and chain for the hoisting, but Callaghan, who had charge of the delivery of the coals, jtreferred to use a ro[ie belong- ing to the stejimcr instetul of the chain, as he said it was liiindier and more easily worked. The rope was 4| inch, and had been used by the steamer in hoisting cargo on hoard. It had been spliced in one part, and before the phiiutitf began work, Callaghan called his attention to the I'oiie, and told him to keep his eye on it, as it might break 1S,S8 June 15. I 158 VlCE-ADMrKALTV UKPOIiTS I 1888 jiiid hurt liim. After this tlic i»liiiiitift" hct^iiii woi-k, ami TnK while ait work tlic rope broke where it wiis H|t]icu(l, and i'l ENUKiiK. eonsefiuenee tiie plaintitt' was thrown violently from the steatner to the scow, a (listan(;e of seven or eiijht feet, and was (piite sorionslv injured. lie was laid up and unahK' to work for a len_i»;ih of time. The steamer was arrested on a claim for personal injury in the sum of ^1,000. The Court. however, held that the [daintitf coidd not recover; that there was no jurisdicti(jn ; that the Vice Admiralty ('o)nt- Act, lH(i3, did not api)ly; an(:,) : Thr iyicHh (0); Thr Toronto (7); The Chasr{H); 24 \'ict. c. 10; 20 Vict. c. 10; Coote. Ad. I'rac. 13. F. K. Barhr, C^. C, for the vessel and owners, contentU'd that the action should be dismissed for the followinii; reasons: (1) There was no evidence of no_laintitf was i»:uilty of contributory ne_i;"liii"ence, or the same thing; he, with full knowledge of the danger, if there was any, undertook the work and placed himself in ii position of danger, and cannot recover. Volenti von fit injuria. (4) Callaghan, the plaintiffs employer and principal, selected and used the rope with full knowledge of its defects, if it had any, and gave full notice of same to plaintiff, after a chain had been offered and refused by Callaghan, as lie preferred a rope. (5) The Court has no jurisdiction for a personal injury ot this kind. (0) If the Court has jurisdiction under the Aet cited, it is only in cases where the injury would be a damage (1) Ante, p. 45. (2) L. R. 2 A. & E. 24. (3) L. R. 2 P. C. 447. (4) 7 Jiir. 1174. (5) 1 Stuart, 89. (6) Ibid, 118. (7) Ibid, 170. (8) Young's Ad. Dec. 117. OF NKW lUU'XSWICK. 159 (l.)iu' by tilt" ship ''icrself. lie cited \Vil/er ai»pliances. Thv Vcro Ci'xz was not ai»plieal)le to tins case, but the cases he iiad already cited were in point. The plaintiff had lost two months' time, and shouhl l)e allowed at least ^2.r)() per day, and further damai^e for his bodily injur}' aiid medical attendance. The following Judgment was now (June 15, 1888) de- livered by Wattkr.s, J. This was an action /// rem brought by llie plaintiff to recover damages for personal injuries sustained by liim on board the steajner Enricpie, in August, 18S7, whilst tending the fall for hoisting coal tul)s on board the shi[» from a scow alongside. Tlie steamer was anchored in the stream in this liarl)or, and was at the time l)eing suii- plied with coal, which was unloaded from the scow. The l>laintitf was employed on the deck of the slii[> tending the hoisting ro[»e which lifted the coal tubs from the scow to the ship's deck, where lie would dnmi* the coal into wheel- bai-rows. This hoisting rope broke near the steam hoisting winch on deck whilst hoisting a tub of coal, and the rojie caught the plaintiff and pulled him over the rail down into the scow, whereby he sustained bodily injury. The steam hoisting winch, rope and gear had Ijeeii fur- nished by the steamer. The suit was brought under the Vice-Admiraltv Act of 1863, sec. 10, which provides that the Vice-Admiralty C'ourt 1S8H TlTK (1) L. R. 4Q. B. 693. (2) 1 E. & E. 384. (3) L. R. 6 Q. B. 729. (4) 9 P. D. 88. i^ 1 Court hail no jurisdiction over a chiini tor a |icrsonal injiirv of this kind; that tin; , jurisdiction only extends to eluiiiis lui' (hinia,ii:e done hy the whip itself. Other liroundH were aJM) ur^ed ai^ainst the plaiiititrs rii^ht to recover, vi/. : Tluit plaintitr was not in the einploy of the siiij); that no neirli- ^eiiee was imimtahle to the siiipor her ofHcers to nMider the KJii]) liahle; and furllu'r, that plaintiff had continned at thr work of lioistinii; with fnll knowledi,^e of the danu'er, ami that lie tlierehy took the risk upon himself. Since liearini>' the arii;uinenti< in this suit I have seen two <'ases ')earin«; inunediately upon the (piestion of the CourtV jurisdiction as raised in this ease. First, the case of Tin lidhni I*nir (1), the cause was entered as ai cause of daiiiai:\' oil hehalf of the (»wners of the Iliua aer, hut was a suit tor hreach of contract. The Court said it was ohvicii- that the dama\VICK. un iiii: III llir ut'll iiii(1ci>I()'m| iiH'iiiiiiiu' mT i||i' |i|ii'ii>c in iln* 1*1W Ailiiiirulf V ('(iiirt, iiiinn'lv. " tl:iiii;iL;r doiu- liv nilli-iMii." -i',,,,. Tlif |ii.'liti(ili WHS rt'jrctfil with rosls. |;mii.ii. The \'irt(iria uii> hound ti'din the Kast Indir> id I l!i\ it. (•alliiin at Maha !or (>r(h'fs. The fullision timk iilacc liclurc ri-achiiiii' Malta. All lu'i' cari-M wa> discliai'_i;i'd at Havre, rhiintitl'-- rdin- iiifiiciMl an action /'/' rim aii'ainst tlir \'i<'toria lor damage to '■;l^^'o. and slir was ai'iH'stcd on the action. l''or the (h'triid- aiit it was contiMnU'd thcfc was no /ini'isdiction in the Court. Ill entertain the action: that the .\(hniralt_v .\ct of IStll, Ml'. 7. a|i|ilie(| only to dainat'"i'> done hy a vessel to sonie- thinu' with whicli it can come in c(jntaet. ami not to earn';) nil lioard. Untt, .1.. said: ''I am clearlyol' those of section 7 of the Kiii^lish .\dmiralty / -t of ISBI, ii;u)ii which these two decisions were made. I must hold these cases as conclusive authorities ai;'ainst the claim of tlie i/liiiiititf in the |iresent action. Iloldinu" this \ie\v, it is iisele>s to discuss oi" ex|»ress any opinion upon the other lUr n I cl'i'C lO'ciifi lllKjIlf Fur H citation of cjises as to It will he noted that counsel injury to the person, see The for defendants in the principal Tcililington, ante, p. 52. ca.se raised suhstantially two ob- (1) 12 P. D. lOo. Klli VICK-ADMIUAi; IJKlMUn's I ISHH jcctioiir' Id llic |iIaiiMill"f* action ; Tii7 ^'^ Tliiit tli<'( 'ourt Imd IK) juris- Knim'^m. •lictioii in a case of this iititiirc, as tlic injury cnnipiainnl of was not !i (iioiia^c ilonr liy tln' sliip ; (2) Tliat tiic |)Iiiiiiliir was not in the employ of the siiip, liut in Callai^'iian's employ, and there wan no (hily in any way arisin;: from the ship towanis the phiin- titl'. The U'arned jiid;,'e deeichd thfi case upon the first f,'round, liohlin^ tiuit Ihe Court, under the circumstances nt' the ease, had no jurisdieiiiin, witiiout con- HJderin^r tlu' second point. The judjfMient is hasod upon the authority of T/ir lti)l>rrt Poir, Br. it Lusli. !»!l: and Tlir \'!r- hr'ui, 12 IM). 10"). Thr h'nhrrt J'tnr WHS decided i)y Dr. Lush- in^'ton in IHO:!, and it was tiiere hehl that tlu; Court of Aihniralty lias not jurisdiction un(h'r .'! i*^' I Vict., c. <)"), see. (i, or 24 \'ict., c. 10, sec. 7, or otlierwise, to en- tertain a claim airainsl a steam- tug for dama!_''e occasioned to the vesHol towed hy ne^rli^'cncc in towinjr, if the dama^fc arises not by collision, hut by the ves.sel takint;' the ground. The same judge, in T/ie Niyhtwulcli, Lusli. 542 (1862), held* that where, by the improper navigation of a 3teani-tug towing a vessel, the vessel came into collision with another vessel, and was injured, it was damage done by the steam-tug, and that the owners of the vessel towed could pro- ceed in the Admiralty against the tug. In Williams A' liiii leurned editors m»y : " It in ditti- cult to discover the principle ut' the distinction iii the two ciit.. '{"lie ca.'O may he reronciled li\ suppo^'ing that the ('uurt cim- sidered that in the one case there was evidence of actiomihle neir- ligence independently of \\u\ breach of cnnlraet, and thai in th<' other ease the caiix' of acliun resteil simply upon l)rencli of contract. .\t the same time it is diflicult to see what evidence then; was of actional)le negli- gence independently of contniet in the cMse oi' The Xi)/lilifiiti'li. Although ill the judgment in Till Uiibn-I I'liir, Dr. Liishiiei- toii seemed to attach a liiiiile(| and technical iiienning to tlie wo'mI ii<\' danniL'e done hy a ship to a lireaUwater. The ease ot" Tli> Lrrr/.v„r, L. \\. L' A. iV K. '2(lN ' l'S()(H), was where a vessel, Ui^ain-; the will (d" the luastiir, was moved Ity direct it)ns of a ilnek master to another part of tli< harhor — from the eastern tu the weste.Mi pier. While at the westi'rn |)ier a <^ale sprung up. the vessel hroke from her iiiooriuLrs, and did considerai)le ihunajre to the wharl". It was lu'ld that the vessel was lialde tor the (hunage. It was also held ill Tlir EncfiJii, L. \\. o A. iV K. 4N (L^TO), that the Court lias jurisdielitai to entertain a suit instituted i)y tlu^ owners of II vessel a^rainst a steam-tug eii- jraged to tow the vessel for neg- ligently towing her HO as to cause lier to come into collision with and do danuige to another ves- ad. In The Indudrie, L. R. 3 A. A' Iv :{():; ( I^TI >. there whh no co||r«ion hel ween the two vesxds at all, and vet th ISSS I'lIK ing vess(d was held lialde for the damage, The plain t i tfV vch- sel was entering the harhor of llarllepodl. The Inilusirie was, e..||,.|,.|- Km,,,, IK. throU'di tlie ne;;liuenee o f til ose on hoard of her, lying across the ehaiuiel or fair-way. The plain- tills' vessel, ill takiuLT necessary measures to avoid a colli^iioii, lo. A ca.se of miiidi importance on Admiralty jurisdiction has I'eeently been decided hy the House of Lords. The plaintitla n((m in l\n' Admiralty Division of the High Court against a Dock Com])any for injuries to tiie amount of (.'221 4s. (Id. to their hriuight an action //* jh'i-ho ■iteamship, by a collision \vi th the dock wall, occasioned by the neglige liirence of the Dock C (jm- j)any. The Court found the Company liable for the damage, but refused the plaintitis their costs on the ground that the ac- tion ought to have been brought in the County Court exercising V'A VI(M^:-AI).MIIiALTV UK PORTS 1888 Thk ■I I Admiralty jiirisfli.'tioii whore the cause of a'.'tion arose; The '/.;((( (18t»l), P. 216. The caae was taken to the Court of Appeal, and is reported as Turner v. Mersctj Doc/cx und Harbor Hoard, (181)2), P. 285. The Court of Appeal, Lord Esher, M. R., and Lopes, L. J. ( Fry, L. J., dissent- ing), reversed the deci ion of the Presider.t, holding that the costs should not be disallowed on the ground assigned in the Court below, as neither the Admiralty Court nor the Ad.niralty side of a County Court had jurisdiction to entertain the action, which could only iiave been trietl by the judge of that division sitting as a ju('ge of the High Court. The effect of this judgnient was to largely restrict the jurisdic- tion of the Admiralty Court if it had remained unreversed. Leave was given to appeal to the House of Lords, and in August, 1893, the judgment of the Lords reversed the decision of the Court of Appeal and restored that of the Presi- dent: Mersey I>oeh:< and Harbor Board V. T/(n/.r. (1S!);J), A. C. 468; s. c. 9 Tim;«s L. K. 624. Lord Hcrschell, L. C., in his judgment, exhaustively examines the cases and upholds the juri.x- diction of tiie Admiralty Court. After pointing out the (ontlict- ing statements of tlie law, us laid down by Dr. Jjusiiington in The Ida, The Robert Poa\ and The Sarah, the Lord Chancellor savs. p. 481 : " If I am to estimate the relative weight of th";!e con- flicting statementb of the law, it seems to me that the view ex- pressed in the late case of The Sarah is more important and authoritative. It was the ground, and the sole ground, upon which the Court assumed jurisdiction and rejected the protest. It may not have been necessary to go the length of asserting jurisdic- tion in the case of damage caused by all torts committed upon the high seas, but it was essential that the jurisdiction should cover something more tian damage caused by collision between ships. My Lords, when I turn to prior authorities (and I haveexamintil every one which the researches of the learned couji.sel brought to the notice of the House), 1 can find no autho 'ty which sup- ports the litnitation of th.e juris- diction of the Coi'"* of Admiralty laid down in the ca.rinei|ile or authority, for .*iiieh a limitation, nor IS it iiece.sMiry to (h>i'i(le wiiether the Court of Admiralty jHJs-.sesst'd jurisdiction in a case similar to the present prior to the A .t of 1840. supposinjr th' t>se«l ('(iiiHiet with some of the broader groii)<'ls upon wliich the Muster of the Rolls bused his judgment in that case, and ,ie fact tiiat 1 am thus differing from that learned judge has made me consider the nuitter all the more anxiously. I ought to notice one argument which was regarded as f)f weight by two of the learned judges in the Court below. It was said that no disa.ster similar to that which gave rise to the present action could have occurred on the high seas, and that therefore the Court of Admiralty could not have had jurisdiction in such a case, and has not now jurisdiction i)v virtue of the .statute of 1840, when the occurrence takes place within the body of a county. 1 am unable to entertain this view. I think that a vessel might, by the nouiigence of the owner of a fixed object, come into collision with it, and thus sustain damage. Such cases are (|uite conceivable, xlthough, of course, not likely frecjuently to occur. The argument that ac- cording to the rule of the Court of Admiralty, where both par- ties are in fault the damage is divided, and that this rule could not well be applied where a ves- sel is damaged by collision with a dock wall, appears to have weighed a good deal with the Court below. Jiut it appears to me that the difficulty would be precisely the same where the damage was caused by the ship and not received by it, a,, for example, in the case of Thr III fa, h. 11. 2 A. it E. 29 I)., and others of the cases cited, and yet the suggested difficulty has not prevented the numerous decisions to which I have alluded in favor of a construction of the Act of 18()1 similar to that now- contended foi- in the case of the Act of 1840. The true answer j)robably is, and it would be of e<|ual weight in both cases, that the rule referred to has jiever been applied except in the ca.-c of a collision between two ships." It is submitted The R,iberf Pow must now be con-jidered over- ruled. The judgment of the House of Lords in Mersey iJoeh and Harbor Board v. Turner, .fupra, has also, it is submitted, established that the Admiralty (.'ourt has jurisdiction to enter- tain a suit, (1) for damage by collision between two vessels, (2/ for damage done by a ship to persons and things other than ships, (;^>) for damage done to a ship by a barge, pier, dock wall, or other object, through the negligence of thos', having the same in charge. In Moiiaijluni v. Horn, 7 Can. S. C. R. 40!» ( 1882), on appeal from the Mari- time Court of Ontario, it was held (Fournierand Taschereau, JJ., dissenting), that the Mari- time C'Ourt of Ontario has nt> jurisdiction apart from R. S. O.c 128 (re-enacting in that Province OK NKW BKrXS\V[(;K. 167 L(.nl Cunipboirs Act, 9 & 10 Vict., c. Oo), in ail action fur per- Hinal injury resultinjr in death, ami llicrefbre tlio appellant had no locus shoull, not having liroujrht the action aa the per- -idiial rc[)resentative of the child. The action was in rem against the ?'teand)()at, The Garland, by whoHc negligence the death was caused. It was further held by a majority of the Court revers- ing the Maritime Court of On- tario that the Court had author- ity to entertain the suit, as such jurisdiction was held by the High Court of Admiralty in England. This case was de- cided prior to Tlic Vera Cruz, 10 App. Cas. oO (1884), and .so tar as it is at variance with the latter case must be considered civcrruled. In the case of The Vtr<( Cruz it was held that an action III rem did not lie under Lord Campbell's Act. In the latter case the suit was begun in the mime ot the administratrix (if the dccea.^od. Hut in The lUriiina, lo App. Cas. 1, the Cmrt upheld an action //( per- ■"'ininii against the owners for danuiges for lo.«s of life. A col- li-iun took place between two -tcanicrs, the liernina and the r»\ishire, which wa.s occasioned liy the fault of the masters and iicws of both ves.selr. One of the crew and a passtaiger on the l)Ushire were dniwned. neither ■f whom bad anything to do \\ith the negligent navigation of the ve.s.xels. The representatives l"^^*^ of the deceased, having brought -j-^,,. an action in personam against lOsitnaK. the owners of the Hernina under Lord Campbell's Act, it vas held the deceased jji-rsons were not identified with those navi- gating tiie liushire in respect of the negligent navigation ; that the action was maintainable ; and that the whole damages were recoverable, the Admiralty rule as to half danuiges not ap- plying under Lord Campbell'.s Act. .V.MKRICAN CASE.'^. The Supreme Court of the United .States, in The Max Morris, lo7 U. S. 1, decided that where a person is injured on a vessel while in the employ of a stevedore, putting coal on board, through a marine tort ai'ising partly from the negli- gence of the otficers of the vessel, and ])artly from bis own negli- gence, he is entitled to recover in Admiralty, but whether the decree should be for exactly one- half of the damages sustained or for a greater or less sum than one-half, in the discretion of the Court, was left undecided, the special case not requiring the de- cision of that point. In Leatherx V. Ble,%iinf/, 105 U. S. (S'itJ, it was held that the term " torts," when used in reference to Admiralty jurisdiction, embraces not only wrongs committed by direct force, bi' uch as are suf- fered in consequence of negli- 10s vl(•|<:-ADMIl^\l/^^' liin'oirrs 188S fni; I puce or nialfoa-sinco, when the ivinedy at coiiuu;)!! law is hy an action on the casio. The juris- diction in Admiralty is i>ot ousted hy the fact that wliere tile wron;4' was done on hoard the vessel by the negligence; of the master she had completed her voyage, and was safely moored ut her wharf, where her cargo was about to be discharged. In this case the ])laintiH" brought an action in jtrr.sDiiaiu against the owners of the vessel for injury sustained on board the vessel by a bale of cotton falling on him. As was customary, plain- till" w(!nt on board to look after freight he expected by the ves- sel, and in going along a passage- way the accident happened which caus((l the injury. See also Henry, .Vd. 'M. In cv jxtrh Govd'Hi, 104 r. S. .")].">, a writ of prohii»itioii was refiised to a Distiict Court of the I'liited States, sitting in Admiralty, wherein a libel claiming dam- ages was tiled against a steamer for drowning certain s»'amen of u vessel with which, as she was navigating the public waters of the Ignited States, the steamer, as was alleged, wrongfully col- lided. Waite, C. J., at p. ol7, iu delivering judgment, says : " The suit is tor damages grow- ing out of the collision. Hav- ing jurisdiction in respect to tlie ('olli.siou, it would seem neces- sarily to follow that the Court had iurisdi<'tion to hear and decide what liability the vcs-i 1 had incurred thereby." And again on p. 51M: " 8o here, tlio Court of Admiralty has juri- diction of the vessel and tlu' subject matter of tlie action, to wit, till' collision. It is coiii|)(- ti'Uf to try the facts, and a'; \\v think, to determine whether, since the Common Law (.'ouris in England, and to a large ex- tent in the Tnited States, arc permitted to estimate the dam- ages which a particular j)ersiiii has sustained by the wrongful killing of anothei', the Courts of Admiralty may not tlo the saiiis' thing. If the District Court entertains such a suit, an a])peal lies from its decree to the C'rcuit Court, and from there heic, if th(> value of the matter in dis- pute is sntiicient. Inder these circumstances it seems to us clear that the Admiralty Courts are comjietent to determine all the (piestions involved, and that we ought not to issue the pro- hibition asked for." This ca.eas whicli resulted in loss uf huniar Hie. A Court of Admiralty can en- force such right of action in a proceeding /// rfiu. The. E. B. Wurd. Jr., 17 Fed. Kep. 4r)(i .].ss:}). In a District Court of Virginia it has been held that a State statute cannot create a iiiiiritime right. A proceeding f'/i rem brought by the adminis- nator against the shij) was dis- iiiissed. The fact that the statute gives a right of action ill pevfonum does not thereby give a right of action in rem ill ii similar case in Admiralty. Till MinihuHSi't, 1!) \''Qy\. Kep. '••!« (1884). The Admiralty jurisdiction as to damages from loss of human life ha.s recently l)i'('n considered by the Supreme <'ourt of the United States, and that high Court agrees with tho Hou.' for the death of a human l"ii)g^on the high seas, or on *\aiirs naviirablc i'rom the sea, which is caused by negligence. Thr Hurrixhurff, ll!t F. S. 11)0 (1^8(1). This view was re- aflirmed in Tlic A/-(i, loO F. S. 201 (l««!l), where it was held, in the absence of an Act of Congress or of a statute of a State giving a right of action therefor, a suit in .Vdmiralty cannot be mai:.i.ii::cd for dani- M!je sustained by loss of iiuman life Again, in 18!ll, the same Court held that a District Court sitting in Admiralty cannot en- tertain a libel in rrm for damage incurred by loss of life wher by the local law, a right of ae- tion survives to the administra- tor or relatives of the deceased, but no lien is expressly created by the Act. Thr Corsuir, 14o F. S. o8(j. In these cases the English and American decisions are cited and discussed. i:mployi:i{"s liajmijty. In the case of The Euriijiir, Watters, ,1., dismissed the plain- tiff's suit upon the ground that the Court had no juri.sdiclion. The other objections urged in defence were not considered. It may, however, be useful to refer to some recent leading cases upon the employer's liability to his servant. In an action t(t re- cover danuigcs for injury caused by the negligence of the defend- ant's servant, the defence of ct)inmon emi)loyment is not ap- plicable niile.>is the injured per- son, and the servant whose ISH.S I'lsiil'/CK. 170 VICK-AD.MlUAI/rV KKI'OirrS ]HHH iic^ligeiu-e caused tlu; injury, i^jj^, were not only enga<^et .shore and telegraphed to the plain- tiff for further assist.-. nee. lie sent two other tiios. wirli rhei r crew id I'leveii men in addition, to assist in piil liiu die vessel off. Monday abou afloat. ISalla iiKiNfd about Tuesday, and L'ot off, and t(i iitlier tugs to\i From the evi( ti'oiii the east iluy — toward I'tf on Tiiesda ;iiid gi't'atly di ileiice was tha i|;iy wiieii it w who was also ;ii(T]tted 821(1 loiild. any rig Out of this an lull, and the p Vess(d by proc Mi'vices, (dain '||' the salved thaii 8S(I0, C. .1. r^>^>* Mdiidiiv !il>(»llt ll ]•. 111., iiud rt'niiiilH'(l till the vessel Wiis i^dt 'p„j. atioiit. IJiilhist was (liscliai'u'ed uii Moudiiv, and (lie \'essel Nuiuhai-. iii(i\('d altout tliii'tv feet. More l>allast was diseliaru'ed on TiK'>da\ , and altoiit .'».;5n |t. m. of tliat dav the vessel was ;r()tt)tr, and towed to Chatliani hytlietui; St. Andrew. The iitlii'i' tni:;s towed the masts and risi'uinij to tlie same place. From the evideiiee, it a|»|K'art'(| t'lat the wind hey-an to hlow ii'oiii the east pi'ettv hard on the r'ollowinir dav — \Ve(lnes- iliiy — towai'd the land, and it' the vessid had not heeii ii;ot I'rt" on Tnesdav she wonld have heeii driven tnrther ashoi-e ;iii(l ii'i'eatlv damaii'ed. if not hroken up entirely. The evi- dence was that the laintitf: \V. C. UV/^^7o//•, for the master and owners. And now (Oct. Otli. A. I). ISSS), Watt Kits, .1., after heariiiii" the parties, \alued the vessel :ir .SSOO. and allowi'd the sah'ors S400 and i-osts. It was iilso oi'dei't'd that a commis.sion of sale should issue for the t' till- vt'ssi'l, and that the proceeds should he hrouii'ht into tin' re<4n(> t(» tlic plaiiititf: (;{) any siii'|tlii> tdl. )iiii(l to tlir (k'fcndaiit's solicitoi- as ri'in'csontativc of th owiu'is. as it apiicars ilic seamen iiaxc all l»een paid. • ( h'lli'l't'il >lrr(il'il'lii/lil. For citalion of cases as to sal- in «listres.« without particular iv. vage SCO note to The >S(. Cloud, f;ar(l to the claiais of the dwiin ftntc \t. ]-\'), rl M'tj. I'roceedinj^s of the sulvinj;' ship; Tlir Tim can be had a<,faiiist the owners l-'rieiuh, U W. Kol», ;)4!t : Tin of the ship or property salved Kuchinilri.'o*, Lush. !i;». Tin personally, a.-* well as ajruinst till' Ctairt has full power to a|i|Mii- rcf for the recovery of .salvage tion the anioinits not only ininniL: reiiUMiei'ation ; '/Vc ILijir. ■'! ('. the different interests of dwnti, Rol). '2\~); and there is no dis- nuister and crew of a salviin' tinction helween river and sea shij), hut also where then .sa Ivai-e: Tlir Oirrlrr // ore, 2 ditlercnt sets of salvor.- arc Tin ail Moo. P.C.N. S. 24:5. The value LliuHhi, >< V. I). -2^. \\W\U of the salving ship in all eases appeal lies to the Court of .\|i- will enter into the consideration peal to review the award of tin of fixinii' the amount ; Tlic OIId Admiraltv Division, the (niirt trriiKiiiii, L. .1. Ad. l^peal will oidy inlcri'cr V III the (laMger incurred, the probable exceptioiad cases; Tlic KiK/finiil. vitiation of insurance policy on L. K. 2 1*. i'. 208; llw Wuhiirn account of deviation, the liability Ahbcij, 21 L. T. 707; Tlw Lnu- of shipowner to owners of cargo ; cader, !> P. J). 14; The Glm- The Sir Ralph Ahcrrrmnbie, L. duror, L. R. 3 P. C. ").S!I. In K. 1 P. C. 404 : and in the case the latter case it was held tluiv of mail steamers, the penalties must be a ditlerencc of at lca.«l ineiirred under the contract for one-third before it will intirl'tic deviation ; The Silc'^ia, o P. D. The same principle is obscrvcil 177 ; and especially when human in .".ppeals from Vice-Admiralty life was in daiiLrer; The Sl-il>- Courts to the Priw Cuinicil; lad II cr, :] p. D. 24. iMirmerlv The Vudlewood, 42 L. T. Tdl salvage reward was principally The- De Buy, 8 A pp. Cas. given for labor and skill in ac- See also Nc tual services rendered to a vessel p. i(9, ei iie(j. wson on aiva'j Till' owners of an ti|rri'eiii) lilt' aiiKiiint the rali'N n nitt's, 'I'lr ri'M(lt'i-i'il til rail's. Til, fur like ser wiTc MKaiiif ll'hl, That asll till' plaiiitil Tlie owile .\. P.., in till tain a iinit'or • tk'i't of tlie tor towag'c s I'ates and IVe iiiii Vessel o •Maine, wliei lilaiiitids" til: ^^ilar|■, in tli King's mills, ■Mil iiiarket. on .\pi'il 2ii( lug wi'iit for •lowii thi-oiii The eanl or for the tow this latter an of the ves.sel. olaiiiiiiig;tlial .vciirs, and tl I'ine. and I» OK NKW r.lMNSWK K. 17.3 TIIK IIATTIK K. Kl N( ; _( ui.i.in.- 'Villi (Kjv — ('i)inltiiirtltiiii I'nIfK Sill llli'ijiil. Till" inMiiiN of tiiK-lioalH plyiiiK in llii- linrlxir of St. .[olm, N. |{., ciilirid iiiti) Ml) (iKn'onii'iit to cliarttc a imilnrm i"it<' for towajjc services, ami siiecilied tlie ainoiiiits Tor llie flitiertMil t»\v,s. Tiie etlecl was lo materially increase tlie rales iivi r I'ornier years, when there was free coniiietitinn and cut rates. The plaintitlV tnj;, at the rei|nest of the niasliT ;e services, ami they charni'il the cotnliinatioi\ rales. The vessel owner oliered to pay what he li.'id paid in former years for like services, and refnsed to pay more, claiminu the conihination rates were ajjainst pnlijic [>olicy and illegal. lllil, That as the charges wi're reasoiialile and fair for the >ervices performed the plaintilis were entitle, fiitci'i'il into iiii iioTcciiiciil to iiiiiiii- laiii it uiiitbrni nitc tor towai^r scrxiii's lor tlial vcar. Tlic cjk'ct ot" the iiii'iTe'iiK'iit was to iiialrrially iinTfasi- tlir ratt's lor towiiov sei'vitx'.s owr t'oninT years, wlieii tlicrc were cut I'lites and tVet' c*oni|K'titioii. 'Plif ilattii' I']. Kiiiu'. ;iii Aiiiori- liiii Vessel of 'll'l tons hiirtlieii, I'eiristered in tln' State of Maine, where tlie owners resided, in tliat year eiio-jiocd the iihrnitilt's" tiio- — the I)oaiu — to tow the \-e>>el tVoiii Kothiev wharf, in the harhor of St. .lolm, up throuoh tlic Falls to Kiiio-"s mills, wlu'ri' slu- was to load Itimher for the .\meri- ■;iu market. The vessel was aeeordino'ly towe(i to the mills oil April :2nd. \\\ reipiest of the master of tln' x'osel, the lii,i;"\\ent for her, \vhen loaded, on A|iril Mth.aiiriiiti|, iiiiti insisictl iliat siiniliii strviccs luid 1 ll\nii !■;. jicrluniHMl (or iliat iiiiioiint in rormcr Vfiirs iiiidfr \'\w « (III I >iii- Kix |K'titioii. It was |>ro\ctl on llic lu-iiriiii;' Itv >»'V»'ral owiki, of tiiii's lliat till' ratt'> olitaiiiftl in lornK'r vcars lunl litni nnrcninncrati\c : thai iIm' t-ard or coinltination rates wni' not (•.\('('>si\t'. laii wt'i'f oid\' lair and rrasonalilt- lor llir H( I'vii'cs |>t'rtoriiii' rcii- (Icrc*! w ill !»(' a lloWt'il. \i'll\-liili nil Sii/rui/i, ,)'•(•. (cd. jSM |). 147). 'rile \'itc-Adniirall_v Court lias Jiirisdidioii to tfiitcrlaiii tlic >iiil. Tin /'ra'h.ss {]): lowan'c has a |iriority over salvage. |»ilotai!^c oi' hottoiiii'v. '/'In <\iiisiiiiiiily. What the defendants paid in fornicr years was no eriterion m this ease Tl lere was no evideiicf of any restraint of trade. The del'eiidaiits knew what tin- rates were Itefore the tuu; was eiii^aged. Tu;Lf owners have a riu'ht to au'ix'c amonsj; themselves as to rates, and to s:i\ tlu'V will not tow lor less. There is nothinu' ille^'al in that. (1) Liisli. !.•](». (2) lU .Iiir. SI" (3) () E. I'v n. 17 s. e, if. li. 1!)!>. (4) L. K. -l^l 15. 1");: Wattkus, litis, and asf I have no d( tain this sii were |iel'fori tlieir re(|ii('si ti»r these ser yearn simila Then there (iwiu-rs of t rules they lo ,\s the su mIIow half e( are to he |iai I poll the I I'liiiihiiiutioii ii iiiul coiispinic ill Imsiiio.-s, J *'"'/' Co. V. .)fr iiig and iiiqx jiiisscd til roll} Ciiiirts to the :iii(l was t iab( al>l(' coiiii.^iel, considered in tlir sevcM-al Coi was first inadt tiiiy or interim the (lef'oiidaiit tiisi'd, l.'i q. . !i(tii)ii was then ''olci'idge, C. ,] ii. which the ilaiiia-ics for si Vent llieni froii I nil It' between I •iiid an injiuu M OK NKW 15UlN\s\VR"K. 177 Wattkus, .1. I «h'«'i(h' ill tins cam' In tiivor ot tlif plaiii- titfs, anil asHcss tlii' aiinMint at i^'l'A — tlic till! sum flaiiiu'd. I lia\«' ii(» t as to tlir jnrisdicfioii of tin- Court to cut*-!'- M tain this suit. Tin' t'vidcinc shows that towaii't' scfsicc^ were iM'i't'oniM'd hy the itlaiiititls lof the di'fi'iidaiits, and al tlicir ri'(|n('st. Il fnrthcr a|»|K'ars that ihr ann)unt dainu'd tor these servii'cs is fiiii- ami rcasoiud*)*', althonijh in t'onnci' years similar services \v«'re |K'rtornu'd tor smaller snms. Tlicn there was keen competition and urt.s to the House of Lords, ;iii(l was tiaborately argued by uliit' coaiisel, and was fully iiiiisidered in the juilginents of llif several Courts. Application was tirst made for an interlocu- tniv or interim injunction against till' (lefendants, which was re- immmI, 1,3 q. li. 1). 47(). The action was then tried before Lord 'nleridge, C. J., without a jury, ■i. which the plaintitis' claimed 'lainai^es for a conspiracy to pre- viiit them from carrying on their tiailebetwe(!n London and China, ami an injunction again.st the M continuance of the alleged wrong- ful acts, in which judgment wju» giviiii in favor of the defendants, 21 (^ B. D. 044; and this was sustaiiu'd by the Court of A[)l)eal per IJowen and {'"ry, Jj. JJ., (Lord ICsher, M. K., dissenting), •23 q. H. I). .")98. Upon appeal to the House of Lords, the judg- ment of the Court of Appeal was affirmeil. The following are the facts : Owners of ships, in order to secure a carrying trade exclu- sively for themselves and at prolitable rates, formed an as.so- ciation, and agreed that the injmbcr of slii|)s to la; sent by mend)ers of the association to the loa, according to what was known a.- " The H'gular turn system." J')V this they agreed, among other things, that every tug-boat should take its regular turn in order; that every ship coming into tin harbor should count as sm h turn ; and that such tug shoiiM \h entith'd to all her towage till she went to sea ; timt on arrival of a vessel at Partridge Islniid, the tug, whose turn it niiglit he, must be jtrepared to attend iIk vessel or lose her turn, tiic next tug in t)rder taking the vessel. If more than one vessel arriv((l, the tug whose i.'irn it iniglit lie should h".ve the cption of cIkm'^- ing tiie largest ves.sd, tiie n. xl in turn to choov from tlu re- mainder. That ail new ve>-el> up or down the Bay of Fiiiidy, beyond (^uaco or Mus(juasli, should be towed on special term- to Partridge Island, and on ar- rival there should be towed iiitn the harbor by the steam tug. ami should, in falling to said Uv/^ genera! turn, cou/it as such ; Imt if the vessel did not fall to >aid tug's general turn, then it sliouM be allowed to said tug as a gen- OF XKW BlUIXS WICK. 179 cral turn ahead ; and all tugs on the general turn list ahead of !iii(h tug, which liad not their general turn, should take the next vessel arriving as their turn. The agreement then pre- ?Til)ed the order of tugs for new vessels ';.>(.;;'' Quaco and Miis(iusish. The hreiich of agree- ment complained of was that a new vessel beyond Quaco re- qniiod to he towed into the har- l)(iv ; that it was the turii of the ]iliiiiititf 's tug to do the towing, iU'cording to the agreement ; hut that the defendant, contrary to tlie agreement, towed the vessel into the harbor with his tug, and atcerwards towed her to sea, thoiign tiie plaintiti" was ready and willing to do the work. On demurrer the (.'oiirt held the agreement to be void, as being colli niry to j)ublic policy and in restraint of the freedom of trade, ihe parties having restricted theniselves from carrying on their own choice, but according l'*^l"> to the will of others ; and that 'r„T, the interest of the public, par- Uathk E. ticularly of shipowners, would Kix(i. be prejudiced by giving cHect to such an agreement. A contract by which a rail- road company agrei'd that an elevator company should, in con- sideratio'". of the erection of an elevator, have tlu^ handling of all through grain brought by the railroad company to a certain point, and receive a fixed price therefor, is not repugnant to the commercial power of Congress nor to public policy ; Dubuque A- S. ('. li. li. Co. V. RirlunomI, IS) Wall. ")?S4. An agreement in general restraint of trade i.; illegal and void ; l)ut an agree- ment which operates merely in partial restraint of trade is good, provided it be not unreasonable, and there be a consideration to supjiort it; Orcynu l-itrjnn Xav. Co. v. U'liLm-, 20 Wall.G4. 180 VI CK- A DM IH A LT V R K 1 '; )KTH s!ilvii<;e wa; Julv 8. TIIK FKIKU— SORKNSKN. Salvaye — Two Vtssek Lanlwd Together -Tw/ Takinij Hold of Oiif — LuihiHiy of Other. ' Two vessels — the V. and the A. — were moored to a l)noy on tlie north ol the liarbor of St. John, N, \\. Tliey were fastened togetlier, and during the nijrht broke h)ose by resuson of the buoy becoming detaclied from 'n> mooring, and tliey drifted bow foremost down tiie harbor. All on iMninl the vessels were asleep. The plaintiHs' tug gave the alarm to those on board the vessels, and, by listening on to the A., towed both vessels diii into the harbor and left them in u place of safety. Held: — That the services rendered under the circumstances were salvjijre services, and although the tu^ bad not in fact fastened a line to the 1 ',, yet salvage .services had been rendered i)er, for wliieii she was liable, iuid that the owners of the tug could proceed separately against the V. wi;li- out joining the A. in the action. Two V(!sst'ls, tlio Frier iiiid tlu' Arfos, on .Iiiik- !!•, A. h. IMOO, were iiiooi'cd hy liawsers or chiiiii."^ to a hitov \\\ Kaii- kiti's eddv, on tlic uortli sidi' of the luiri)or of St. .lolm. X. J3. Duriiio' the niijht, wliicli was (hirk, a wiml spruiii!: n|), tlie Imoy to wh'u-h tliey wiTe moorecl ht'caiiu' detachcil from its fasteiiiiiij, and the two vessels, which wwv lashed to;;;ethor, ht'oan driftiiiii;, how forejiiost, tlowii stream, tlic Frier heiiiy- to the east, next to tlu' whai-vi's on the harlior front, at which sevei'al vessels were lyinr Vainh/r/,- (1), sluAviiis; the lialiility tor salvaije servicer, althoii,,!:h no re- (|llt'^t was made to render assistance : also Xcirsim m Sfdragt: (('(1. ISHC), p. -2: Drsfii's S/ii/>. ,('• A,/., s. :{<)<>: Marlaohh in on SI, '/I. (ed 1880), «;08. /. Alhn Jiirl;, tor the vessel, cited Xnrson i.„ SalriK/e, [». 1 ; 7'A,- (ilaronii, [•!) : Prl/r/Hin/'s A,/. J)!;/., ss. 4:)8, 4.V.», 4»i0, 401, 4ti."). lie C()ntended the service rendered was oidv a towairo service; Jin Slrnthimrir (:J). All Uadini»" elements to claim siilvaire should exist, whii-h did not in this case; there must also he a request tor the ser\ices on the part of the salved >lii]i: Till V<. (4) ItlJnr. 729. (5) Lush. 2.S2. (0) 2 W. Rob. 4y5. 182 VICE-ADMrRALTY l^EPORTS 1H90 adrift until liailcd by the tug. Salvage can be claiiiud Thk without demand or acceptance, if rendered; XiirsDn od ShI. Fhii:i!. roff<\ 8. Services were rendered; they were meritorious, and the master was notified before action brought tliat ten l>er cent, for salvage would be claimed, and that there was no claim for towage. Watti:ks, d. This is an action iit rem brought i)y the owners of the lug-boal Ivichard Doane against the slii|. Frier. It apitears that on dune 10th, IH'.tO, the Frit-r and the Artos were juoored to tlu^ buoy in iiaukin's eddy, so calleor of St. dohn, X. 1>. During the night the two vessels, which were lashed to- gether, got adrift, by the buoy becoming detached troni its fastenings, and they were seen by those on board the tuir- boat Richard Doane floating bow forenu)st (h)wn the harlior. When seen by Pilot Stone and the master of the tug they Were four or five hundred feet off South wharf This was about n ]t. m. The vessels were then (b'ifting down tin- harbor. It appears the master of the Frier went aboard his vessel at half-past ten that niglit. The argument has been ]tut forward that these vessels, from the state of the tiiK'. ^voldd not, on that night, float dov.-n the harbor. l>ut we havi' the fact from the evidence that they ( "11 stopped, Supjiose the tiitr, when tlie vessels were tirst seen (h'iftinir down the harhor, hud not had sutiicient steam on to t^o to their assistanee. It is evident, in such tvont, they would have i^one a<;ainst the vessels at the wharves or floated out of the liarhor to sea. They were, therefore, in u'reat dani:;er. They would have l)rou<^ht up sDiiU'wlu're, and, hein^' fastened to^jether, they miirht also have donc^ i^reat damaije to each other. The p'"'sons on hoard thesi> V(!ssels heard nothiiiij; until they were aroused liy those on the tuu;. The tii<:; ijave them informition, and we cannot tell what (hiniap.'nL'(l if the intitrmation had not heeii ijiveu. The wind on tlie yards, iiceordini; to the harl)or masti'r's evichuiee, woidd have taken them with n'reat ninmentuni airainst the other vessels. Kvei-ythintr shows their position was one of (hini>;er. Then ;(■; to the law applieahle to the ease. Salvaife can ht^ claimed it any henetit has heen received; Xciry'un on Safi'>i'/i\ p. :]. These vessels directlv received heneHt from the services of tlu' tULj-hoat. is soo . as tl lose on huarc d th le vessels receivec I information as to their condition, it was the course of pru- ih'Hce to avail themselves of the assistance of the tuu;. Even irivinu: advice mav, uikUm* certain circumstances, amount to ;i sal va.sxe service ; T/ir Ei;:ii (1) ; 77- IKrsia ( -1). I low much more, then, in this case, when the tui!; followed the vessels, aroused tliose on hoard, and rendered tlie necessary ussist- iiiiei". We cannot tell what would luwe heen the effect if the anchors had heen (h'opped. The evidence of Pilot Stone shows that dauijer was imminent. The very iid'ormation iriveii hy ilie tuij was of service. The Uv^ not only i^ave information, hut anchored the vessels in a place of safety. Was this vessel — the Frier — in a dangerous condition? I must (ionchide she was. Did the tuiif contrihute to avert the 'laiurer'r I must hold she did. Then as to the amount to allowed for the si'rvices jier^' Tl \v. nniruime law ihei'aliy rewards efforts to save property, and that is done 1 ) Lusli. 5;JG. (2) ] Si)inks, l(i6. 1H4 1890 Thk Fi!ii;u. VrCK-Al).\irRALTV liKI'OliTS to stinuilatc exertions in tins (lirection. Tlie snnoiiiit o\' siilvjii^e is in tlic discivtion of the Court, lmvin, cuise, such as value of projierty, risk I'un, and work dour. The scrvici! in this cast- was meritorious and necessaiT. 1 tliereforo think it woiiM he ruasouahle to allow the tutj, for the siu'vices rendered. ><2.")(>. I theretore allow the salvors that a/nount, with costs. Dirl'i I tlrroi'tii/K/li/. %,{mrje--Negli For cases on salvage, see ante, pp. 145, 174. Article 20 of the laws of Oleron cnjoiiu'd the duty of assisting distre.s.sed merchants and niariners " in saving their ship-wi'ockcd goods, and that without the least end)czzlement, or taking any part thereof from the right owners," and the re- ward for salvage for such as took pains therein was to he "accord- ing to right reason, a good con- .science, and as justice shall appoint." By recent legislation reci|)rocal salvag" rights at present exist hetween Canada and the United States. The statute of the I'nited States, approved May '24th, 181K), enacts " that Canadian vessels and wrecking appliances may render aid and assistance to Canadian and other vessels, and property wrecked, disahled or in distress in the watei*s r)f the United States contiguous to tin- Domiinon of Canada." This Act was brought into force iiy the proclamation of the Presi- dent of the I'nited States, Jnlv 28, 1893. The Parliament .".f Canada passetl a law in 18!rj, oo-oO Vic. c. 4, which enacts in sec. 1, that " United States vessels and wrecking appliances i»>ay salve any property wr^'ci^d, ami may render aid and assistance to any vessels wrecked, disabled nr in distress, in the waters of Can- ada contiguous to the United States," This law was brought into forceJune 1,1893, by procla- mation of the Governor General of Canada. And under sec. 2 n!' the last named Act " aid and assistance includes all necessary towing incident thereto." OP NFAV BKUXSWrCK. 1H5 TIIK MA(i(JIK M. — MouKv. T(>unge--Negllgi'nri' — (oltiHion — Rnnnini/ Tow (n/ainst a liriiliji — Jiiri/>ilir- tion — Liahilihi. A tuR-hoiit \v!is fiij^aged by the clmrterers of a vessel, the E., to tow lii-r from the harbor of St. Jolin, X. H., throiiijh t\w Kulls at the iiioiitli of tlu- river, beneatli a siiypension bridj^e wliich spans the Kails at the poini where tiie river (lows into the harbor. The vessel towed was chartered to carry a cargo of ice from tlic 'oadiiif; place above the Kails to New York, and the charterers were to employ the tug and pay for the tow:i^e services. The tug, having waited to take another vissel in tow, together with the K., was too late in the tide, and in going under the Itridge tlie topmast of the E. came into collision with the bridge and \v:i> damaged. Held: — That the Court had Jurisdiction to entertain the suit; that the delay of the tug iu going through the Kails was evidence of negligence; and the tug and owners were condemned in damages and costs. Tills Wiis Ji suit pi'oniotiMl hy the owiu-rs of tlif sclioomT Hric ti<]^aiiii-(t the ttitf-bojil .\la<:;i:;i(' .NT. siiid owners, cliiiniint:; S')Oi) '' for (lainai^cs occasioned hy Ix'iiin- towed into the Su?'|»ension Uridy'i' (so called) at the month of the St. .lohn Iviver, in the harbor of St. John, on the :>rd dav of Mav, 1S!M),"" The Erie was under charter to carry a carifo of ice t'ronj abovi' the Falls to New ^'ork. It was a part of th«' .lirreenient of charter that the charterers should eno'auH' tlie tuo; Jind pay for the towao;e services. The Maii\«:;ie .N.'., in imrsiianee of that ai;reeiiient, was ono:ao;ed by the a_ii:eiit nf the charterers to tow tin- Kric from the harltor thronirh rlic Falls, l)eiicath the Suspension Uridize which spans the St. John Uiver at its month, where it i-nters into the harbor if St. .Icdm. On the mornin.o- of May 3r, the tuu" took the Kric, then lu'inu' in the harl)or, it; tow, and went with her as far as Rankin's wharf, in said harbor. Instear nuituality between the owners of the Krie and the Mii;, and therefore no lireaeli of contract l)i'tween the Va'u and the tui:;, and he contends that Ibrasmuidi as no acti-i woidd lie 1 V the tuu; aijainst the Kric tor the towaarty to it; the charterers, in en<<;au;- iiiii' tile tuu', were only carryiiii^ out their part ot tlii' conti'act h tlu! owni'rs of the schooner to furnish the towinu; powi-r \vi t(t c liable the Kric to i>ass throuy'h the Kails lor ln-r carijo. This suit, however, is not one for b b of contract, but is a iiro<*eediiii? in rein. 1 take it tb ii tl I'iric, haviuic con- sented to be towed by the .Nfai!:''!' M, '.'lioui^b emi>loyed hy the charterers, it became t- di v of the tuu' to use s (I a >i(' damaije hapjteniniJ!' to the Kric; and if in the pe< 'rncnice of lu-r work she iicii'lii^eiitlv towed the schoone. i;j;aiiist another vessel ( asonable care and skill so a- )r a I) I'idii'e, causiii ii" di ima_<2;e, she cou dd |irocee( led asrainst '/' rem, and made liable under the statute for " damai!;e done hy a shij)." The ijeneral rule of the maritime law will i^overn, viz., that there is a riijht of proceediii<; /// rem au^ainst the Vessel doiiii;' damas^e which cannot be taken away by any voluntary contract with a third party, Tl le case of 77. /''/N//(r////V/ (1), cited by Mr. AVeldon, does not ap[>ly. In that (•a>e, by the course of business, and under the conditions of the notices issued by the steam tiitj company, of which the [ihiiiitiff was a ^'-*" for Id'cacli of SI coiitiMct of towaLff, in wliicli the Court lnM Iff,, tliiit tlic tiii; had hccii iiiaiiai^tMl in an iitiscaniatiliki' iiuuiikt. .Ma(|(.ii; M. and the tuy; was condcinni'd in dainai^cK. Thu qnc'stion was also raised tliaf this caso docs not fall within tlic words of the statute as " dam ni'i't' (lone \)y ji slnp. It is now hi'ld to III- inunaterial that the mischief eoniplaiinil of is not done dii'i'ctly l>y thi' vessel jiroeei'ded ai^ainst. Tin hjiicr;!;! (1) was a suit aijainst a steam-tni; enj^ai^ed to tow ;i vessel for neiflil^ently towiuLT her so as to cause her to coiiir into collision with and do danwiire to anotiu'r vessel. So. Tlir \ii//il>riifr/' (-2) was a case whei'e, hy the improper navi- 'Xalion of a steam-tuy", vi'ssi Vt'SSO 1 W and sustains I d; I A cani" into collision witli imai^e. It was lu'ld that this wa- v the steam-tni;. Tlu' Court sav: r iini>t take it that Tl" Pi nirr th •1 t i(> vessel towed, Wiis 1)V ti le Uii- )»ropcr naviii'ation of Tin X't/lif>rii/i/i,w\\\r]i was towint; her. hroui^ht into collision with 77/( ./ulirf. This was damau'c done l>y 7'Ar X;,//r liohn-f J'oir (:]) does not appear to liavt' been followed by any suhsi'(|nciit <'aso. Next, as to the duties of steam-tu_u;s. The law i- clearly nettled that, when a steam-tui; enu;ai;es to tow ii vessel for a certain remuneration from one point to another, she does not wai'rant that she will he ahle to do so under all <'ircumstances and at all hazards: hut she does emxay-e that she will use hei- hest endeavors for that purpose. The steam-tn; his vessel to a steam-tug' to be con- veyed, as here, through the Falls, has a right to e.xpect th:it the tug-master possesses the re([uisite knowledge of the tides and dangers and diflit" tlic spars of vtsscls to l)i' towi'il : p,,^, and to till' extent of air space ln'tweeii the watiT and the Ma(..iik M. hridt^e at the dittt-reiit heii^hts ol' water — a species of know- Icdi^e and information indispensal)h' for tiii;:-niasters to study and actpiire, in orih-r to ensure the due pcrfornnince of tlie wiirls thi'V nii(h'rtal\c to |terfonn, and fi>i- the preser\ation iif the property entrusted to thi-ir care. Much contlictinu' toiiniony has heen ifiven as to the time the tuir, with the Kric in t<»w, arrived at Kankin's wharf; the h-nixth of time -he reimiine(l there, and the exact time when she reache(l ihr hridu'e. rpon a ri'view of th*- whoU- evich-nci- I am of (•pinioii that too yfeat (U-hiy was ma(h' at tlie wharf, and that the time so hist was a.ii'irravated hy the tuu' iink w ill the performance of so peculiar and jn'rilous a ser\ ice. As to the daimiii'es to he allowe(l. It appears tiiat tlie hciLcht to he earned hy the carryinir of the caruo of ice has liiMii lost, and after repairiiii:". the I'j-ic was ohliiced to ai'cept a less remunerative charter. It is shown that the ditterenee ln'tween the two charters amounts to Slv li it 4 Vict., e. ()"), s. fi, the rofcreiico to locality, for .services 111 It has lun >dict ion, \vi thout in the nature of salvatre or tow- lilll VI('K-AI)MIU.\i;rV UKI'OUTS IHOO a^f reiulcrrd to any .•«lii|) <»r son- TiiT' P''"K v<''*'«'l. I iwlcr this Act of I MvitoiK M. the service rendered must Imve l)eeii to a "mIup or seu-p»iii;; vesHel," and tlieret'ore a claim for salvage remuneration in res- pect of a raft of timl)er within tile body of a county jruve tlie Court of Admiralty no jurisdic- tion ; //'//'/ of Tliiihrr, 2 W. Rob. 'J')I. Prior to this Act "in cases of towa^ife, where there had tl been a contract between the parties, the Admiralty has no jurisdiction. It was, however, tl iou;,dit expedient liy the leiri." latur (■ III all these matters to i^ive a remedy to ihe parties who miirht have rendertd the; vices. whet! ler on the hi^,di seas, or within the body of a county, by assistinjr a vt'ssel, within the proper jurisdiction of this Court, and not to leave them to an act ion at law, us l)efore th pa? -ill"' of this Act Tin OciiinA N. of Cas. .'>I5; I'M wards' Ad. I'.M). From early times tiie Court exercised jurisdictiitn over claims for towage si-rvices ren- 011 the hiidi seas, am 1 th ex- dercd 8 iS: 4 ^'ict., c. ()•"), M'i- tended that jurisdiction to the body of a county. The Vice- Admiralty Court Act, l.SI).'}, c. 24, sec. 10, in respect of towage, conferred a like jnristritiu ('ni'i'ijiiiii Co., 4.'} Ch. J). 241, the point canu up sipiarely for (h'termination, and it was held that orditia'v towage services reiidert'd to a .«hi|) created no maritime lien. As to the corn'Iative duties nt' tug and tow, see Thr Jii/iii, Lush. 224: Tlir Mni;j, :. V D. 14. Where one .>hip is in tow of another, the two shi|is are, fur MUiie purposes, by intendment ot' law, regarded as one, the coiii- mand or governing power being ' ith the tow, and the iiiotivr power with the tug ; Tin Clmdoiu 14 Moo. P. C. !)7, s. c. Lush. 1")8; Thv Amerint and The Si/na, L. R. fi P. C. 127. The " tug is the servant of the tow," and those on board the tug must obey the orders of the tow ; The Christina, ;i VV. Rob. 27: s. c. 6Moo. P.C.;}71; The Ua. 12P. I). :}4; TheX!obe,]t]l\\). ")") ; Sinitk \'. St. Lmvrence Tuv Boat Co., L. R. 5 P. C. .S08. .See also Spuighi v. Tcdeasilc, (» App. Cas. 217; The Jiestless, Vo OF NKW inaNSWK'K. I!) I otto. (l!(f>. Tlu'H! is one ex- nptioii, that tii^' and tow hIuiII III' *1c(>iii(m| DIM' slii|), and the tiiw ri'H|M»iisil)l«' lor the coii- • liicl of the tii^, and that i- when thf til;; is niidfrinu; salva;:*' s( rvid" ; Thr Union Sliiiins/iip Co, V. T/ir Armuni, L. U. <; V. ('. 127. Ill Tin' (/iilrhh/,, 1.') V. I). \m, it was held that a luir^fc towed into o great as to be beyond the ordinary services ot a tow-boat, lleiirv, TlIK \<.'e best endeavour and competent skill lor that purpose, with a vessel properly e(|uippe loaded with piling, liciind for Ni w York. The V. did not rhange he i-onrse, and ran into the M. i'. mihI ransed the injury. Held: — Tluit although the M. I*, was on her port taek, she was practically hove to, ami coulil execute no niancniivre to avoid tin- collision; that llic al.>sence of a regulation log-horn on hoar.l did not occasion or conlrilmle to tin: collision; hut that the <-ollision was occasioned l>y the want ol' a proper lookout on Itoard the I'., and she was therefore condemned in damages and costs. This Wits :i ciisc (•!' (l:iiiia<;c l>y (Millisioii institiifiMl liv tlic owiu'r.x of the .\liil»-l riifdy :io-;iiiist \\\v r:ii'iiiiiittt;i. Tlic (•(tllisioii loitk |iljifi' it) tlir Hay ot" Fniidy nii Tiu-sday, May l'H. ]H\H). alxMit 'J |t. III. \\ the tiiiir lilt' wind was hlowiiiif stroiiir, and tlir wi-atlicr was foo'oy. 'I'lif tacts and cifciiiii- stanccs rA' the case af»' I'lillv si-t mil in ilic /ludLi'iiu'iit dl' lln' ('..lilt. Mr. r>. .\. Stai /.. A. ( '" rn '/, lor |tlainilits iifi's artfd as iiaiuica! a>>fss(»r tiff's ('. .1. /''.■'iiiii\ lor tlu- I'araiiiatia and owners. Tlif iollowinii' Jiidir|in.|it \va.- now (.Imu' •!, IMH) tlcl i\- rl'ci I )• \^' \ ri];i!s. .1. Tliis was a i-aiist- of collision instituted liy llic owners o| ihc sclioop.cr .Mahcl rnrdy aii'ainst llic liaik Parsiniiittii, ot St. .lolin. N. !>.. tor a c(»Hision which tuck place in the l»;iy of Kiindy ahoiit '2 o'clock on the afteriuinii of Tiu'sdiiy. JOth May, IHJIO. The wind at the time of the cttllision was hlowiuij stronjn" from south south-west. The weather was fo; „'y. occasionally lio-htino- up. .\t the time N OF XKW mirxswicK. lit: tlir I'iiriiiiiiitln Wits first sei-ii tin' scliooiuT was liow toon \^'J\ ihc |M)i-t tack iiiHltT a rcctcd mainsail liaiiK'lii|i was under what her captain callfd snnt; canvas, viz. : turcsail, tore np|:i'r and tore |o\.cr Niitsails. mainsail hauled ii|i. lait with l»<)tli tojtsails on her. On lu'f mi/.zeii the -|i;iiiker was set. Her Jih and sla\sail were set. The shi|t liiid a tleekload hii:"her than her rails. The schooner was lioiuid t"r thre«' seamen. Iteinu" tlu' whoK- >prhi> crew, were e.\aniine(l on lieliaH of the plaintill". TIh- -|icc(| of the shi|i was state(l liy Captain Scott to have heeii iVniii three to tour knots; liy the master and crew ot' the -'•liooiicr it was esti'.mited at the rate ot a'.»oiit ti\f knots .111 hour. The distance of tl,' ship t'rom the schooner when first seen i- stated hy Captain P>ishop as from one-(|narter to onedniU" iiiilf. His mate, {{ohertson, >ays aWont one-half mile, and ilic other two of his crew state the (li>tance to he ahont one- '|iiurter of a mile. lloih vessels had tin month horns, which tlioy state w«'re •'liiwn rcirnlariy: Imt these horn> do not appear to ha\e 'ifcii heai'd hy the other \esse!. The reason >/i\'»'n for tlu' schooner lu'inL;' ho\f to was that '111 Tc was too much wind for them to inn down throuich 'li« north chaiMU'l. The evi(l«'nce shows that the -hip did lull alter her course, hut continued in the ilirection of the - Iinniur. strikim.1' her on her starhoard ipiarter and causini;- ilir damaii'e ■■■ nii|ilained of. The defences set u|i iiy the I'iiiaiiiatta are ,!iat : i. Tliei'c was not a proper lookout ou the schooner. -. That file schoon r did not have a proper fon-hiun j'li'pcrly LToiiii;'. ill! 7- 11)4 VrClvADMIUAI/rV liKPoUTS 18^' '5. That tlu- scliooiiiT bt'inu; on tin* port tack and st'ciui; TiiK ^''^' I'araniatta distant about halt' a mile, nnidc no cftort U) PAUAMAnA.a\oid the collision. 4. Tliat tlu' schooner was short handed. On the part ot the schooner it is alk\i;x'd : 1. That at tlu' time the I'aramatta was Hrst seen fl M> scliooner was hove to on tlie [tort tack and was practicallv motioidess, iroiiiir sliirhtlv to leeward. '1. That no measures wi're taken l»v those in elnnm' of the Paramatta to avoid the collision, and the schooner heiiiL.^ liovt' to. was unal'le to u'et out ol'tlie way. 8. That the Taramatta was in fault in not havin<2;a |ir()|Kr lookout, in not soundini; her toLT-horn, and in not kcepiiii: out of the wa\- of the schooner. Tlie case of the schooner is, that .she was hove to aiitl unable, for want of time and room, and from the state of tin- sea, to take any measure to prevent the accident, and tluit it therefore liecame the duty of those on hoard the slii]i to naxii^ate her with care and skill, so as to avoid dointr dainaiiv to the schooner. Tnder all the evidonct! before me, which has been cart- fully considered in consultiui^ with the nautical asse.s.snr who is advisiuij the Court upon nautical (|uestions, I ;uii advised that considt-rim; the state of tlu' winil ant! si-a ami the position of the schooner, if she was makiiii; any hcadwiiv at all, sill' would be driftinii; in a north-westerlv diivctioii. and in the direction of the ship; also that the ship beintr ti> iille^ed, distant between one-quarter and half a mile from the scliooner, and runninir in the direction of the si-hooiuT at a speed which he considered e(|ual to a rate of about !» ■ tween four and five knots an liour, the schooner would iioi liave had time in five minutes to swinu; oft six points ami clear the ship on the i)ort side, as she would tlieii be sailiii!: for the ship, and the sliij* would at the same time be sailim: direct for the si'hooner. The assessor ai?rees with tlie evidence of Captain («aK' that the ship would have ufot afoul of the schooner beton' prnXlSlOIlS ( III SIH'll ca^ OF NEW ir'TN'SWICK. 195 the srliooiuT could liiivi' succcsstnllv cxt'ciitLMl any man- l^^l ractically hove to in a heavy sea. with lier deck load of pilin;.!' and with no headway i|Htn lier, and the eye ot a si-annin could have at once per- vcd that she was apparently helpless and incapahle »»t' ■el lurt'ormintr miy immediate mamenvre to <;et hersell' out ot the way ol the sliip. r roni Wiv appearance' ot the schooner there was nothiuL^ to indicate to those upon the ship that tin- <( hdont-r was ahout to attenqit any chauire in lii-r position. Cases do sometinws ai'isi.' where two vessels ar«' verv close to ea( h oth ler. and wlu-re it is impossilde to comply with tlie |>rii\isions (tfthe reii:ulati(»ns withcmt daiiirer heint; incurred. Ill such cases, in order to avoid immediate danu;er, other measures may hi- adopted, 'i'his is recoirnize(l hy .\rticle ::{ »t' tlu' iH'ii'ulations, w hid I savs In ol x'viniT iind con- stniiinx these rules due reirard shall he had to all daui^ers of iiiivii^ation and t(» any special circumstances which may ren- iler a di'partnre trom the ahove rules neeessary to avoid iiiiiiiediate danirer." Thus ill the case of 77/( />'/^/'/ .1//// ( I), cited hy Mr. rallnei, Tl'i Ldtlij Ann heini; the vessel on the starhoard tack was Jur. 20. i<^(; v4, '■1 1S91 TlIK vi('K-Ai)Mii{Ai/rv i:i:iM)HTs ort' mil' or two |Miiiits, wliii'li woiiM li;i\«' l)rouiilit licr ( lr;ir ot tl'c scIiooikt's stcni and tims the collision would I i;i\f I'AKAMATiA.bc't'n wli( »1 l_v iivoidcd ; it is fjicri'torr jtlain tliai Hu' slii|i miirln l)_v a vcrv sliulit deviation iVoni lu-r course, after risk ol' nil- lision was a|i|iarent, liaw a\(»ide(l it, hut she continued In r course dii'eetly tor the schooner, and onlv put her he'iii h;ii' came iVoiii his cahin a minnte het'ore the c(dlision. say> that if the man iini a want of vi>:'ilance on l»oarm! when she is undei' way. At the time of the collision ihc deck of the hark was in charu'e ol' the ooatswain, who \\a- actini;' as second mate, and for >onie time before the niastci was lu'low in his cahin. We have no evidi-nce when iln- schooner was first seen hy the ship. ( )n the part of tlir schooiHT the master states that he saw the ship when she was hetween a i|uartcr and a half mile oil". Tnlsifer. one "i the seanu'U, says: ''Captain |{isho|» antain called my attention to the shiji. I should Jiiaw the >hi|>. then went liaek. put ( ilcck. aiKJ \ IIS. I did I rliey had k( lia\e clcare (leek : she ' .laiucs \i •■ it licinu' .\l">iit -2 o' :;et nil deel • 111 deck V liaik was iii\ clothe Mniek us. Imp deck. leuknlli. 1 liaxe lieeil, -lii|i after tl iiii'il it wa iii!7 li:irk. |Mit on my cDiit, vi-st and par.ts, innl rt'tuiMU'ij to tlu- I'^'-^l and was tluTc two or tlirt'c minutes Itctori' slit' stnn-k '[• ilK ii-i. I (lid not sci' any one on her dcrU. I looki'd to si'c. h'l'uivMAirA^ rli(\ liad l I conld sec the ship wlicn I lirst canu' on sln' was ahout a ipiaricr ( t" a mile ot^ .lai MI'S ikoinrtson the other seaman ol tlie . "hooner sav: •• it lieinu' my \\;iteli helow I Inrned in and went to hod. AliDiit '2 o'eloek the captain ealled me. I didn't hnrry to 'fcl I HI ( loek <|ni( Til e eaptaiii ealled me aii'am. I went nil I leek with onl\ di'awei's and shirt on. I aw tl li;iik was I'ar enoii- iiitt rroijatory : *' llow tar was the ship away tVoni yoii when \'ii I tirst <'ame up on deck in your ^liirt and drawers Answer: •• I jndu'e ahoiit halt' a mile. The t'ou" was not (kii^e: wi' could see ahoiit lialt'a mil' or niori'." I iider all this evidence it is impossihic not to eonie to ihe loiicliision that it' there had heeii a icdpt-r l(»okoiit on hoard "I tin- ship, she woiild ha\i' sei'ii tlie schooiu-r at ipiite a -Mtliciriit distance to lia\c avoided the collision. It was also stron'4'ly nru'ed hy defendants' counsel that iii;i-iiiiieh as the schooner was not ovidrd with a proper I'lii-liorn. as re.niired hy the rt-iiMila ns. she mii-t he pio- iMiijiiccd in i'anlt, and not entitled i ■ecover in this action. and the decision ot' tin- .\dniiralt_\ :_i\eii in the ca^e ot Tl>i L'l; I .;/ (1), has heon cited tor ''at piirp, ditKers niuterially ti'iiii the section ot'tlu' Iiiipei'ial under which the ease ot' Tl'i Linu lin' in not l to adopt uu'asurcs whirchy she c()iil(| I'asily have avoided the schooniT altoi^ether. For tlicsc reanons I must prono\iiu'e aifainst the shi|» tor damaires ami <'08tt«. I assess the damai^es at the sum ot !?2,"2;')0. Diciu )■ ilrci)l'ililii/li/. ( OLLI.SION. Knr notes as to (iollisioii, set; ante, pp. 24, i)2, 7.H, !)1, !).H, 104, 114. For (Iccisioiis allowiiiLT a dcpiirturc from the re^aialions of naviirntion, sec Marsdcn on Coll. (cd. 1S!)1). p. 4«() rt .>7y .som(> of the owners of carjro on hoard the Connoi-iDit a^'ainst the IMrcl, the latter vessel was foinxl alone to hlainc. 'riiercupon the own- ers of the J'rtrr/ instituted pro- ceeding.s for limiting; their lia- bility to i;r),(5r)« os. on 707.2H tons, beiiiff £M per ton on the of the Merchaitt Shipping Act, IMOT, and in res- pect of their claim for lost eill'cts, making the master, otH- cers, and crew of the Connuinnt defi'iidants with cargo e I'itrcl of the crew space, liiul, lirst, that the muster, oflicer.'-, and crew of the (V;/- iiiontni were eiUitled to claim against the fund in respect nf their lost etfeets, for, though lliey had a common (>mplovcr witii the master, officers and crew of the Pchri, in the .-^ense that ^><>l\\ crews wer(! making money Inr him, they were not in coniiiinii employment in the sense that injury from the negligence ut one crew was an ordinary risk of the .service (tf the otlu'r, for the .safety of the crew of one of these two ve.«sels did not depend on the skill and care of the crew ni' the other more than mi llu- OF XKW UHI'XSWICK. 10ft ^kill and care of tlic crcw.s of .)tlit'r vcHsels navij^'atiiig tlic TIuuiu'h; secondly, that as the rc(|uirenients of s. !) of the Mcr- ilmiit Shipping Act, ]M7, had Itccii c(Hiij)licd with, tlie phiin- tirts, us owners of the Pelrr/, in iuli'idating the tonnage upon which tiieir statutory liahility was l)usc(i, wen- entitled to de- ilucf the 'M.Hi) tons Vict., c, li't, is similar to the Imperial Statute, 2") & 26 Viet., c. 03. The ca.se of The JoUiette, in the New Brunswick Admiralty Dis- trict, was dccidt'd by Tuck, .1., October 2nd, A. D. l.'^it;]. It was a ease of collision in a fog in the IJuy ol' Fnndy between two ve.s.sels — the lOmma (1. and the Jolliette — and on tin; trial it was proved that neither ves- sel had on board a mechanical fog-horn, as rci|uired by tiie regu- lations. Tlurc wiirf no counter- claim, ami the Kunua (i. alone was damaged. The learned judge und both ve.-^sciS in fault for iiC having regulation fog-horns, and dividecJ the damages, leav- ing each party to pay his own costs. 1*0(1 NICK-AhMIKALTN iJKI'oirPs 1.S7I ivi >niiii\ . Till-: WIHTK K.WVX, l-'iKlirrii.i l*r(iliiti(iii 'I'liiih/ nj l^Is — I'lip'iriini tn Fi.ili — W'liitl ' An Aiiifricaii lisliinn vc»mI, llic \V. I"., in Novcniln'r. 1*^70, wriii inio lieu; Il.'irliiir, a small Kay im lln' car-ttTn end nl' ( 'ani|iiil)filo, in tin' I'roviiin of New IJrmiswick. Wliilr tlu'iv tlit- inastLr iMinlinscil iVcsli luiTin>,w I'ni ball Iki' ruhinj? |)nr|Msi's. Tlic vt'-M'l was sci/.fd liy llic ciinniiandfr ni i litiininion vi's.d i-nK>* t'l^' |>i-(itt'i'li<)n of tlit* C'anaiiiaii tislit't'io nw tlif gronml nl' violation of lln' ImiK-rial Statiiti", •">!•( m'o. III., <•. ."(H, ami lliL' Canadian Statntt-s, III \'i<'l., c. (il, and I!.! \'i<|., c. 1">. An a|i|)lii:i tioii was inadf l>y the Crown, on tlir |i:iit ol' the Attoiiu'V Ornt'iul ni Canada, lor a monition callinif M|i alxivv mentioned laws. JIvlil : — 'J'liat tlie purchase of halt was not a " |ne|iarint; to lish '" illen:iiiy in Hritis.i waters; that the intention of the masivr, so far as a|i|»fared, iii;iv liavt! lii'U to |irosei'Uti' hi^ lisliin^ outside the three mile limit ; and tii:ii the Coui't woidd not imjiule fraud or an int'iition to infriuf^e the law ii; the ali>eui' ' III" *'videnee. 'I'lie monition for eondcmuation was tliereli n' re fused. Tlii< \\:i>:iii ii|i|ilir;itiiiii (Hi lln' part of the Crnwn. ripr- sfiih'd li_\ tlir .\ltoriicv \vii tor violation nt tlir I iiipi'i'ial Statute .V.> < 111. r. :*)S. aiid tin- i)oiiiiiiii' Sttitutcs :!l \'i(t., c. (11, and :!;! \'ict., c 1.'). Tlu- tint- the case Tiilly apitcar iVoiu the judo'UK iil ot" the Court. o\\ Il W. II. T"r/.\ i^. ('., a|i|n'ar('d on Ixdialf of tin' Ci rt'i>rc'S('iitcd liv the Attonu-v (ieiicral td' Canada. Tlu' tbllowino: l.s the Judoiucut (d'tlic IrariKMJ judo-c ; llAZiA.d. At tlic last sittino- of this Court, .\lr. TiKk. (i. C., proctor tor tlu' ( "rown. ap|ilicd <»n Ixdialt" ol" Sii' .loliii .\. Macdoiiald, the .\ttorncy (iciicral of the I )()iniiiion, ti" a monition callinu' upon the owners of the s(diooner aiul In r carod to show cause wliv the \V/"'/t' Fmri,, and the article- NoTK. — The Judgment in tiiis ease wa> puhlished in the lUuhj T>'l«ii'ii)h. St. John, N.H., Kebniarv 11, IS7I. OK M;\V itlJlNSWlCK. L»01 ;iImi\(' t'MimuTiitt'(l with licr tiickh'. i-lc. slioiiM imi Im- con- I"*"' i|iiiiiu' it il|i|>«'iir- fl'olii litT |iii|ifi>, Wiis ;i 111 \\ Vessel (»f sii- . Iiii>etts, in 1m7r>, Smiles. I''fiend and Sinitli, of tliat jijaee: tliat sjie wa^ duly liri'iised fol' one \e.ir to lie elil|ilo\ed ill tlie eoastilii:' li'aMe Mini fislici'ies, under tile la\\> of the I'liited State> : that \>y lnr "Fishery Shiiipiiiii" l'a|K'r.'" siu'iied hy the master and !( II men. the usual aufreeiiieiit was eiitere(| into for |iiirsinnsi' !lp' cod and other lisherie.->. with iiiiniite |iro\isioiis lor the division of tlu' protits ainoni:- the ouneis. ski|t|ier and eicw. These |ia|>ers and other dociinieiit> found on hoard are ail III jiroper order, and iH'' ilu' sli^-htest sns|iieioii can he du'own upon them. The seamen's artiele-^ are dated l!Mh Noveliiher, lS7n. ( )n the l'4tli .\(t\-eliiher, InTO, ^he arri\-ed ;it lleaoliiiliioli. states that on ilif ■2'){\\ Xoveinher he wa> lyiii;:' with lii> vessel in lli'ad ihiihor. Several (»tlu'r vessels, and aiiion;^' them the Win'/, t'lnrii, were l\i!iii' in the harhor: that he went on hoard the ;i iiiimher of particular- respectinn' 'lull lunrn ; \\v stale- till' vessel from her papers, and adds that the >aid \f>sel, Whih /•''/"■//. had ai'rived at Head llarhor on the l'4';h N(i\'emher, and had hceii eiiu'ati'cd pnrchasinii- froli In r- riiiii's. to he used as hail in liawl lishini;': that there were III! hoard ahoiil fi\-e tlioii>aiid herring'-. iN hich had lieeii oliiaiiied ami taken on hoard at Head llarhor: also, tif- 'ecii tons of ice, and all material- and appliances for tra\vl fidiiiii::, iiiid that the iiii'ster admitted to him that the hen j^- liiiil hi'eii ohtained at Head llari)or hy him Idr the piirposi' 'it iieinsi" used as hait for tishiiiii'. There are. then, some niiiarks as to the inasti'i' hi'iiii>- deci'i\i'(| as to the litct of the 'Utter heinn' in the iieiiilihorlmod. which aie not material: ;i:i'l that deponent further under>tood that persons ha (ic((ii;(' Hi, rap. '■>><, it i> (hidarrcl that il' any foi'i'iu:n vessel, or |»erson on hoard tluTcof, "shall he found tishin^', or to have hei-n lishiiii.^, ..r |ireiiarinu," to tish. within sneh distance (three marine niilcN| of the coast, sneh vessel and earifo shall l>e f(irfeite(|." Tlir Dominion Stalnte :ll \'ic., cap. . within three mai'iiie miles ol the coast, such vi'ssi-l, her tackle, etc., and cai'u'o, shall he fort'eitetl." T\\v \V/i'>(' Fmri, was a foreiii'n vessel in Hriti-h watiis; in fact, within oih' of the connties of the pro\incc, when slu' was si'i/ed. It is not aliened that she is snhjeet to forfeilin<- for liavinu' eiitercil Head llarhor for otluM' purposes than shelter and ohtaininii' u<»od and \^ ater. I'lider si'ction ;> of th ■ Impi'i'ial Act no forfeiture, hut a penalty, can hi' inllicttd for such entry. Nor is it allei^ed that she committed aii\ infraetion of the customs or revenue laws. It is not stated that she had tished within the prescrihed limits, or had heen found fishiuii', luit that she was •• preparinu" to fish,"" Ii.ivJiil;' houirht halt (an arti(de no douht \ery material, if not neces- sary, -or successful tishiuii") from the inhahitants of Campn- helli). .Vssuminn' that the facts of such purchase estahlislic- a "prepariiiii' to tish'" under the statutes (which I do not admit), I think, hefore a forfeiture could he incurred, it iiHiat ho showi\ that the iiri'iKiratioiir- were for an illoii'al tishin^i;* ill Uritish waters: hence, for aui^ht whicii appears, the intention of the master may have heen to prosecute hi;* tishiniT outside id' the three mile limit, in coiiformitv with OK NKW IlUrNSWlCK. •JOS \ws. tin' Htatiiti- : 1111(1 it is not tor tlu! Court t(» iiii|»iit(' fV;iutl or 1^71 III! iiiti'iitioii to int'riiii^i' tlu- provisions of our statute's to any \'„^ Wiirri: person, Hritisli or lorriirn. in llic alismct' of I'vidcticr of I' '•iicli fraiul. Il(> had a ri^rlit, in conitnon witli all otlicr |ii'rsons, to |»ass witli liis vt-ssi'l tlironiili the tlirrr luilt's. t'nnn our coast to tlif tisliinjr irroiinds ontsidc, wliit-li lie iniirlit lawfullv list", am d, as i I 1.1 vi> !ilrcad\ sfatr tl ici'i- l> IK) cvidi'iu'c of any inU'iition to tisli l.rforc lir ii'adird >iicli ^.M'oiinds. The fotistnictioii soiiirht to lie put upon tlicstatiiti's Ity tlio Crown oHiccrs woiiM appear to he thus: '"A forcii^n vi-sscl. liciiii.^ in IJritish waters, and puichiisiii'^- from a iJritish >iil»"H'ft any arliele whirh may he used in proseciitini,'' the tislici'ies without its hfini;' sho\sn that siieh artiele is to he iisid in ilh'ii'al tisjiiii.f in Urilish waters, is liahh' to forfeiture iis [ireparinn- to fish in IJritisJi waters." I caniiol adopt such a construction : I Miiiik it harsh ami uiircasonahli', and not warranted hy the words ot the statute. It would siihject a foreiii'ii xt-ssid, which iiiiiiht he of i;real viiliie, as in the pr«'senl case, to forfeituii with her cai\iro and outtits, for pn iliasiiii; (while she was pursniui,' her voyaLT*' iu British waters, as she lawfully mii^ht do. within tlirt'i' miles of our coa>t ) of a I'.i'itish siilijcct any article. Iiiiwesi'i' small in value (cod line or net, for 1' -taiice), with- iiiit if-; Ijcinii: sliow 11 that there was any int. ntion . lines, and tishinii- tackle for tishinu'. tli(iiin-li not actually appl' d t(» tishinir in l>ritish waters. Ill either of thes*' cases sp.citied in the statute the forfcitiiri' :ittaclies. I think the words •• prepaiin<^ to tislC" were introduced tor th purpose of preventiiiir the escape of a foreii^n vessel which, thouirh with intent t>f ilies^al tishinic in British waters, had not taken Hsh or enu'ai^ed in tishini^ hy settins^ nets and €> ^v:. o^. \vZ^. V] <^ /2 /: w ^, ¥^^ '/ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 JT 2.8 I.I 1.25 |3.2 1.4 25 2,2 10 1.6 Photographic Sdences Corporation 4 /. O sr .'%' «^ /. f/. 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 •Ju4 \I("K-A1)MIKALTV KKI'oliTS •'■^^l lines, l)iit was sci/t"(l in tlio very act of |inftinu' out lici- lines. TirKWiiiTK "^'" etc., into the water, and so " ])re|(arini>' to tisli." Witli- F.wvN. ont these a vessel so sitnated wonld escape seiznre. inasiniirj. as the crew had neither canu'lit tish nor been found fishinw-. Takinu- this view ol' the statute. I am of the oimiioii that the facts disclosed hy the aiHda\its do not furnish leii'al li'rounds for the seizure of the Aniei'ican st'lioonci- 117"/. Fmrii \}\ Captain Hetts, the coiiiniandcr ot the Doiuiiiidii vessel W'lhr Lif'/,;\\\i\ do not make out a jniin'i j'ni-ii ease tur condemnation in this ( 'ourt of the schooner, lier tackle, etr.. anart of the southern coast of New- foundland which extends from C'ape Ray to the Kameau Islands, on the western and northern coast of Newfoundland ; froii: the said Cape Ray to the (^iiir- pon Islands, on the shores ot' tli' Magdalen Islands; and also mi the coasts, bays, harhors, and creeks, from Mount Joly, on tin soLitlierii coast of Labrador, in and through the Straits of Belle- isle • and thence northwardly indefinitely along the coast, witii- out j)reju(liee, however, to anynt' the exclusive rights of the Hml- son's Bay Comi)any; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the un- settled bays, harbors, and creek- of the southern [)art of the coast of Newfoundland hereabove des- cribed, and of the coast ot' Labrador; but so soon as tlu' siiiMC, or ^hall be ^ lawful f'oi dry or eui -ettled, w luent for iiiiiahitan sessors of "And t hy renoui heretofore liy the il take, dry within thr ef the ct harhors ot tyV domu iiaduded \ lioiied In; ever, that men shall such hays purpose o pairing e IMnrhasini, ing water, pose whatt " ]5ut th I'estrietioii!- t'l j)revent er curing i • itliei man the privilej tlieni." Th ' J.m| 111, c. 3S, tile authoi >tipulation; J>y seetior Council wa all necessf >ec!i(iiis 2 ; OF M-:w uiaxswicK. :2(ir» am c, or any jxtrtioii tlioicot", 2. And l)c it t'lirllior onivctod. »liall he settled, it sliail not he That from and after the ]ia.>sin<:- '[- hiwiiil fok' the said lishernien to of this Act, it sliall not be hiwt'ul y (irv or cni-e Hsh at such portion St) for any person or jjersons, not Mttltnl, without previous a are as follows: «ai(l I onvention, and liereni- before recited ; and that if any such foreign ship, vessel or boat, or any persons on board thereof, shall be found fishing, or to have been fishing, or preparing to fish, within such distance of such coasts, bays, creeks or harbors, within such parts of His Majes- ty's dominions in America, out of the said limits, as aforesnid, all such ships, vessels and boats, together with their cargoes, and all guns, ammunition, tackle, apparel, furniture and stores, shall i)e forfeited, and shall and may be seized, taken, sued for, prosecuted, recovered and con- demned by such and the like ways, means and methods, and in the same Courts as ships, ves- sels or boats niav be forfeited, .fil'i*!* ■2W VICF-ADMIUALTV IJKl'ORTS 1871 .seized, jiroseeutod and con- TuK^ViiiTK '''"""^'*' ^<"" '"'y oHeiice against Fawn. ii"y '^i^^'f^ relating to the Revenue of Customs, or the laws of Trade and Navigation, under any Ael or Aets of the Parliament of Great Britain or of the United Kingdom of Great Britain and Ireland ; Provided that notinng in this Act contained shall ap- ply, or be construed to apply, to the ships or subjects of any Prince, Power or State in amity with His Majesty, who are en- titled by treaty with His Ma- jesty to any privilege of taking, drying, or curing fish on the coasts, bays, creeks or harbors, or within the limits in this Act Majesty in Council under tli. authority of this Act, and liv any rcgulalioiis which sliall he issued by the Governor, or pci- son exercising the ofKco of (iov- ernor in any such parts of His Majesty's dominions in America, under or in ))ursuance of am such Order in Council as afore- said." The Canadian Parliament in 18(58 (81 Vic. c. (11) passed a law to prevent illegal fishing on the part of foreign fishcrnioii, and in 1870 {'.V.l Vic, c. lo) amended section 8 of the first named Act so as to read as follows : " o. Anyone of such oflieers or persons as are above men- tioned may bring any ship, ves- sel or boat, being within any harbor in Canada, or hovering (in British waters) within liner nuirine miles of any of the coasts, bays, creeks or harbors in Can- ada, into i)ort, and search her cargo, and may also examine the master upon oath touching the cargo and voyage ; and if the master, or person in com- mand, shall not truly answer the (juestions put to him in such examination, he shall forfeit fonr hundred dollars ; and if siieli ship, ve.s.sel or boat be foreign, or not navigated according to the laws of the United King- dom, or of Canada, and have been found fishing, or preparing OF XKW IJKrXSWICK. •207 t(i tisli, ur to have beon Hsliin<:- (ill British waters) within threo marine miles of any of the coasts, l)iivs, creeks or harbors of Can- iida, not inchided witliin the alinve nuintiont'd limits, without n license, or after the exj)iration of the period named in the last license granted to snch ship, ves- sel or boat under the first section of this Act, such ship, vessel or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited."' And by sec. 7 of 81 Vic. c. 01, any penalty or forfeiture under the Act might be jjrosecuted and recovered in any Court of Vice- Admiralty within Canada. The jurisdiction fin-merly exercised by the Vice-Admiralty Courts is now vested in the Exchequer Court under the terms of " The Admiralty Ad, 1891. In the case of The J. H. Kickerson, Young's Ad. Dec. 96, Nov. 14, 1«7], Sir William 1^71 Young. C. J., sitting in Admiral- 'i',ijf\viii,rK ty, decided contrary to the judg- I'awn. ment of Ha/en, J. In this ciise T/ir J. H. Nicki'rxoti entered the Bay of Ingonish, in CajK- Breton, for the alleged purpo.se of ob- taining water, etc. ; but the evidence clearly showed that the real object of her entry was to obtain bait, and that a (piantity of bait was so |)rocured. She was seized by the government cutter, after she had been warned ort', and while she was still at anchor within three marine miles of the shore. Held, that she was guilty of procuring bait and preparing to fish within the pre- scribed limit, and must there- fore be forfeited. See these cases cited and commented on in 8 Wharton's International Law Digest, sec. 304, p. o'2. The White Fawn is also cited at large in 8 Halifax Cora. 3,382. 20^ vi<"i:-.\i)Mii:.\i/rv KKpoirrs 1H»;4 Jaiiiiiii'S'. TlIK CIIKSAI'KAKK. In re J>AVfl) i'OI.LISX, H nl, hfjil im ( '/i(ir;/r of Piwij for Kjimillllitn. 'I"Ih' importance and lu'ciiliar circuniMtanct's of iliis case jiislify its insi'iiimi in this vnlnmc, altlioiiuli not an Admiralty case. It was puhiislud in fiarnidilet form in iSdl liy Messrs. J. iS: A. McMillan, St. .lolm, N. H,, shortly after Mr. .Justice Kitchie's decision. it is now ditliciilt to pro- cnre a copy of this pamphlet. Tiiis was the first case which had at lliat time arisen in New Brunswick under the Treaty of l^xtradition of 1K4'2. Iietwecn Her Majesty and tlu; I'nited States of .Vmerica.and the Imperial .\ct (iiS: 7 \'ict., c. 7ti, forgiving oHect thereto. The imhlishers at the tiiiif, in the preparation of the case, availed themselves of the services of ('harles W. Weldon, Ks(|., one of the counsi'l (.'iifrafited in the <'ause, and of William M. .larvis, ]'!s(|., at that time reporter to the Law Society of decision^ at Chanihers. It may therefore he relied on as an accurate re|)ort of all tiie proceediiifrs. Shortly atUT the rt-'tiikiiiii' o\' tlic Cliis(ii>tiiht in Siiitiliro. Nova Scotia, sonic of the oi'i<:;iiial ctiptoi-.' having; i-etiinicd tu this Troviiicc, the United States Consul in St. .lolni addressed to the lion. S. L. Tilley, the Provincial Seci'ctai'v, two Ut- ters nnder date 22nd l)eccial>er, lS(i;)(l). Acconiiianyino- (1) Ki;qiisiTi()Ns OF rni: Ixitku Statks Consvj.. .SV. John, .V. B., Ih'r. -l-linl, lSi;3. Hon. S. L. Tilm;v, Proviiicial Secri'tnri/. Sir: — 1 heg leave to transmit the depositions of the captain ant! secoml mate of the Steamer Chempiah', to he ])re.sented to Mis Excellency, in case he rc(|iiires evidence of the criminality of the persons charged with the crime ol' Piracy, hefore issuing the warrant for having them hronght to trial. It i> to he sincerely hoi)ed that no ohstacles will be thrown in the way of bringing those charged with so grave an oU'ence to justice. We had believed until this late hour that a requisition before tiie Kxeciilive woidd not have been refpiired in the Hrst instance. Yours truly, (Signed.) J. (^. lion srd, r. S. Coii.-K NKW IlKl NSWICK. jn!» tlicsi' Ifttrrs wii^ ail atli(la\it joiiilly iiiadf Kv Isaac W'illrtl, ( ;i|itain. ami hanid I ItiuliTsoii. xm-iukI inalr oI' tlic -trainer, ilciailiiiu' till' fart.- within llirir ls(i-I Tin; ^^ > \n: \Ki; iiiitiiiT ot the sicaiiiri'. Ilir >ai(l aili(la\ It liaNiii^' liccii sworn 1. liflitrc 1!. T. (lilhrrt. M-u.. iNilicc Maii'istratr and a .1 II.- rice ol" tin cacc for tilt' ('ii\' and ('iiiini\- of Saint .loliii, on ihc :J2iid day n|' I )cc. Miilicr. A. |). isC;',. ( )n tlicsr iiaprrs His Mxccjifiify tlic I /h Ml tenant ( IdVeriiiir is-iied a w arrant (iJ) F.Mcllciicy will 111' |ilf;iM'il to iisi' llic atit liuiily vrslcd In him liy tlif Act nf P:uTi;iiiiiMit I'lif uiviii!.'- c U'lt til \\ JKit IS kiii'U 11 ;is the " Aslililirton 'I'l-cntv" li tlif fiid tliiit i<'i lain (illi'iiiitrs iiiuy he iipiucliciiiU'il mui dfliviicil ii|i In .liistii'o. Ynii will pIcMsc iiiiikc known to His l'",xc('lliniy, tlmt a^ ;m olliccr ol' tlu' (uivii'iuniiit ol' till' I'liiteil States, I :iin antliori/fii liy the IvNi'cutivf I)c|iatt- iiiciit of till' ( iovcnniifnt to niaki' a i'('i|iiisiti(m upon liim, a> the otiict'i' ail- isti'rinj; llu' ( iovei-nnunt of tin' i'rovinci', in onli'i- tliiit cci'tain pci-soiis iinii iiiii(tvi' III' ;;iiilty ot tlie rfiinc ot I i racy may lie liroiiuhl liclorc the pi'opei ■llicei-s of Jn>ti that the evidence ol I leir ijiiilt or innocein'e may he iicMi'd and coiisidei'ed. 1 have, therefore, the hoiiof to re(|iicsl, that in accoid- iiiire with the pfovi^ions of the said '\ct of I'arliatiient, His I'',xcelleney will ly warrant si^^iiity that a reipiisition has l)cen inadi' for tiie a|iiirc'hension of .lull, ". i'.raiiU', H. ('. IJrooks, David ('(dlins, John I'arker I^oeke, ILol>ert (■|ili()rd, Linus Seely, ( ieorj^e Rotiinson, (iilhert Cox, Rohort Cox, li. A. I'arr, iiiid .liiiues .MeKiniK'v, and rocjnire tiiat ill! Justices of tlu' I'eace and other Matjist rates, witiiin the jnrisdiction of this Province, shall aid in iipprehend- ins,' the al)ove named persons, accused of tiie crime of Piracy, for the [niriiose ■I liaviiiij- them hroii'dit to trial. 1 am sir I Signed I Your oht. Servai:t, J. (}. I Iowa li I), (L S. Counul. LLS.] liKUKiiY Ci;ii'ni-^' that the foregoing are true copits of the original letters ie(|uisition of J. (J. Howard, Es(i., I'nited States Consnl, at the City of lint John, a nd ire now o e 111 mv oiiice. n 111 (Signed) S. L, TiM.iiV, J'ror. Secn'tary. retftry'K Office, 'I'Mli Janiiitry, 1S(>4. -' I'lxtract from the Treaty between Hir Majesty and the Tnited States of America, signed at Wasliington, August 9lh, IS 12; commonly known as the " Ashhiirton Treaty." " ARTICLK X. "It is agreed that Iler IJrltannick Ma/iesty and the United States shall, iilHJii mutual recjuisitions by them or their ministers, otlicers, or authorities, ii-^lie(?tively made, deliver up to justice all persoi.s who, being charged with ;ln' crime of murder, or assault with intent to commit nuirder, or piracy, or ■n--iin, or robbery, or forgery, or the iitteriinee of forged [)aper, committed within the jurisdiction of either, shall seek an asylum, or shall be found within m iiii^ iil.0 VI("K-AI)MlliAI/rV UK I -OUTS 18(11 Tin; ('iii:>Ai'i: A K I ; miller till' |ii'(i\'isi(ms of the Ad of l';ii'li:iiii' f\ Si 7 \'ir., till' trifi lories nl' I lie oiIkt; — iiroviilcd iIimI llii- sliiill nnly ln' doiie iipoii -ik h I'viiU'iici' nl" (', iininsilily a>i, jicconliiiLr to tin- liiws oC ihi' pluci' wlicrc the I'lifi- livt' 111' |ici'>(in SI) clnirmMl slmll lie I'liiind, wmilil .iusiilV his jiiiprclH Msimi mul cdiiiriiitiiu'iil (or triiii, il' tin- criiiii- or otU'iicc iiiiil llicrc Ikh'D cninniitti'd ; !iiii| llic i-opcctivc .Indies and ntlicr Miij^isl rail's of llic two ( iovcniiiicnis sli;il| liavc powiT, jiiiisdictioii, aiul i'litliority, niion coiiiplaiiit iiiadc under oalii. ii. issue a warrant tor liie apprehension of tiie lii^dlive or person so iliar'fed, limi he may he in'oii'^ht liel'ore sneh .Iiidf^vH or otliei- Magistrates, respectively, in tiie I'lid that the evidence of cri initial ity may he iieard and consideri'd ; and ii'. oil such iiearinj;, tlie evi(k'nee he deemed snllicieiit to sustain tin- charuc, ii chilli lie tlie (hity of the exaniiniiiff .Jiidjro or Ma^dstrate to certity the same in tlie proper exeentive antiiority, tliat a warrant may issue I'or the siirreiKJer nf siieii i'nii;itive. Tiie t'Xpen^e id'siieh apprtdiension and delivery shall he horiii' and defrayed hy the jiarty who imikes the re(|nisiiioii and ri'ceives the fn.u;itive. 'ir (3) t; A- Vic, CAP. L.WVl. "An Act for ij;ivin^' ellect to a treaty lii'tween Her Majesty and the I nitnl States of America for the ap|M'ehension of certain ollonders, "Whereas hy the tentii arti(de of a treaty hetween Ih'i' Majesty and llii' I'liited States of America, sittned at Washiiif^ton on the ninth day of Aiif,nM in the year one thousand eight hundred and forty-two, the ratilications wlienoi' were exchanged in London en the thirteenth day of Octoher in ihc same year, it was agreed that Her Majesty and the said I'nited States should, u]hiii mutual re([uisitions l)y them or their ministers, otiieers, or authorities resiici- tively made, deliver up to justice all persons who heing charged with iIh- crime of nnirder, or assault with intent to eominit murder, or piracy, or arsMi. or rohhery, or foi'gery, or the utterance of forged paper, eommitti'd within ilii' jurisdiction ol' either of the high contracting parlies, should seek an asyhiin or sliould he fou!i IvxcfllciKy"^- \\iii'r;iiit. took iiilicriirc rccitcil, slio'ild continiit' in luiic iiiilil imr up (iiIht hI' tlic liiuli coii- tiMcliiin |iiiilii's slimiM siuiiily its wish to di'lfi'iiiiiu it mikI im loiim-r : Aiiii wi'irciis it is cxipfliciil tiiat in'dvisinn sIkhiM lir inaiic lo'- ciiiryint; tin- s;ii:iiiu'. 'I'hal ill case riM|iii^iii()ii >-hail at any time lie iiia(h' liy liir aiithmity ut" the said I'liitt'd Slates, in |iiir--uaii('i' nt' and accnrdiiiL; tn tlic said treaty, tur the (Udi very of any iicison char^jcd witli the ciiiiif >{' forKi'il papor, coiiiiiiittcd within the inrisdiclidii ot' (III I8r.4 TlIK s.vn- \KK ill.' I'liitt'd Stales (.1' An leric! I'hd shall lie I'oimd within the territiiries nl Ihr Majesty, it shall he lawl'iil fur (Hie of Iler Maje-ty's principal Secretarie- iii Ireland fcr the Cliiel" ■retarv ol" the Lord Lieutenant of el Mate, or Inland, and in any of Iler Majesty's cohiiiie> or possessions ahroad for the (ilIidT adiniiiisterin;: the < ioveriiiiient of any such colony or possession, l>y wa'raiit under his hand and seal to si<,'iiil'y that such reipiisition has heeii so male, and to recpiire all .iiistiees of the I'eace and other Maijistriites and Oil icei> ler- •f Justice within their several Jiiiisranted, certilieil under the hand of the person or persons issiiin^f such warrant, and attested upon the isr.i Till: n\. 'I'll all (liiil fririi llir .liisliriM iif llir /' ./ ()[ll. Ill ,1 ii.-tllrf nilliin liir /' //■ Sill- 11 rh, ( iiii'lnni . w iiiil liv :iii Art dl' I'lirli.'iiiu'iil iii.tili mil |i.l->rcl ill III!' -INlli ;ni<| sovcnili yi'iii's (if ilic ii'ii,'!) cii' llci' M;iif»iy (^iii'cii N'icdii'i.'i, i-iititliil All A-i for ^i^i'iy I'lli'i'l til ;i trcMty liclwccii llcr M;ijc-ty and the I'liilfil Sliiio ul" Aiiicricii t'nr llic a|p|ir('li('iisi(in nl' ccilaiii Dlli'iidcrs." it is aiiiDii;; oilier tliiii;,'^ I'liactcd "thai in case iccinlsiiioii >liali at any linir lie made l>y the aiitliiirily (iC (In- said I'liitcd Slatis. in iiiirsiiancc iilaiid aicdrdiny; lo tlic said liial\ lur tlu' di'livi'i-y of any person eliarjied with tiie ciiiiie ol' imivder, or a---Miilt willi intent to eoiiiinit niiirder, or w illi the crime ol' pi racy, or ai --on, or rohiiery, or t((rj;er\ . or the iilleiance of t'oi'ucd paper, coin in it ted with in the inrisdieti on (ii llie I'liilei 'tales ol' America, wiio shall he I'oiind within ihe territories nl Her Majesty, ii ^jiall he lawl'iil for one of Her M ijcNiy > principal >>ecreiari( ■ ol' Slate, or in Ireland, lor the ('iiid' Secielary ol' the j.nid jjciileiianl ni Ireland, and in any of Iler .Majesty'^ eoloiiii's or possessions aiiroad, lor llie )(lieer adinini^lerinu the ( iovernmeiit of ■•iiiv such cohiiiv )o>se>>ion wiirrant under lli^ hand and seal to >iunifv thai micIi reiniisition has iiade, and lo reiinire all .justices of the 1' id other Ma''islrat( illieers of .Iiistice within their several jiirisdictioii.s l( )Vern theiiiselvc' corilinLrly and to aid in .apprcdiendiiifi; the person so aiciised and eommiltiii',,' siU'li person to Uii'd l'>t' 'he purpose of hcinir ,|i.li vcred np lo jiistiec accordiiiL' to the provisions of the -aid treaty, and thereupon it shall he lawful for any Justice of the I'eace or othii pi'i'son haviiii; jiower to coiiiniil for trial per-oii- accused ol'erinies a},^•^inst the laws of that pari of 1 h'r Majesty's dominions in which such ■supposed otiender shall he fc lawful for such Justice of the I* eace or other persa(d there to remain until delivereil pnrsiiiuit to smdi reipiisition as aforesaid. And whereas, in pnrsiianee of and in accordance with the said treaty and act a reipusition has heen made to me, on heh d the sail I I'liiled States, J. (I. Howard, Consul of the said rnlted States at the City of Saint John, in this I'rovinee, stating; that John C. Hraine, H. C. UrooUs, David Collins, Jchii Parker Loeke, llohert Clifii)rd, Linus Seely, Geijrge Koldiison, (lilhert Ce\, Kohert Co.\, II. A. I'arr, and James McKiunev, charged upon the oath "f Isaiie Willett and Daniel Henderson >\itli haviiii; eominitled the crimes ol' piriiey and murder on the high seas, within the.jurisdit'tion of the said I'liihil States of America, on the seventh day of Deci'mber instant, are, or some lril In ;ii|i| liy llic ^iiiil Art fi\ I'm liMiiicnl I iln licii'liv, liv ilii-- WMiiiinl iindiT my li:iiii| iiml s(;il. -iLiiiily llril micIi iti|iii>iliiiii li;i> liccn "^ ^ so iiiaiic, Mill I liiTt Ity i'('i|iiii'(' Mini (I II II II iM Ml I mII .liwtirc-- III' I lie I'cmci' ami III III' r M;ii.'istrMics ;iii(| 111 iifi- iHiiri < III' .lii-ii('c iiT this I'ldviiii (', wiiliin tlii'ir srvcrul jiii isili,'ii(iiis, 111 uiivci'ii llii'iii-\virk, llii- Iwi'iity-t'oiiith 1 1 My of I )cr<'iiilii'r, in I lie twinly-sfvontli yt Ml' of Her jMmji'sIvV IU'Ikii, Anno I)oinini, IStio. !!y His J''xri'IK'n(y's CoinniMiul, (SiKiu'd.) S. [,. Tii.i.KV, m I CiiMri.MNi III' Cai'I'mn W 1 1. 1. Kir, r\iK S MNI .JdllN. I)|:( KMItKII li.") ls»i, {,"\\\j (iiiil (j)iiiili/ ';/■ .SV. .Iiiliii, III iril ; Till' coiniilMiiit of IsMiic Willcit, of tlic StMtc of New York, in llic I'liitoil Sillies of .Vmci'icM, iiiMslci- iiiMriiuT, now in tlir (ity of SmIiiI .lolm, afori'sjiid, takin anil sworn loiliis twfnt\-liftli iImv of Dci't'inhor, in tlu' vt'Mi- of iiir Lord ixiy-three, was master in cliari,'e and command of the .\inerican passenger steanihoat or vessel Cltempea/cr, and owned hy Henry I'.. Cromwell, of tlu; State of New York, in the I'liited States of America, merchant. That the said steamhoat or vessel is diilv re<,dstered in |inrsiianc" of the I'nited States for tl le re<;istering of slii[is or vessel and was so resjislered on the seventh mm 214 VKK-ADMIKAI/rV KKI'oKTS IHdl C'irKsM'i N Ki: iliiy h|' I»(ii miImt in''l:ml. Tliiii llif saiil sirimilMiai in vc»«.»'l wii> sum (it' sixty lliiiii>'iinii (lulliirs iiml ii|i\viii'i|h of ciirri'iit inniu'v of NitN Kninswirk, mid liml mi Ixtiinl w viiliialilc ciirKu iif tlic viiliif nl' ci^rlily lli(iii>:iiiil ilnll H iiikI ii|i\\;ii >r lik I' riii'i'i'iii iimiu'v, Mini lliiTc wci'i' III llif lime ii niini Imt uI' |iaMs('iiKi'i'N III) IkmhI the -iiid >|ii|i ,,i- vcsm'I. 'I'liiit llic siiiil vcmhi'I nr >-Ic;iiii1hiiiI Icl'l tile |hiiioI' New N'oik on the lit'lli day uT I)('i I'tiilicr iiislaiil, liciii^' tlicii duly rcjiisuTi'd as ariirisnid, willi llic car^o o( ilic value alnrt'sMid oil Ixiard, and a iiiiiiilicr nf iiiihst'ii^tTM, oti ii vovmko fniiii llic said jKU't ol' New York til llic poi't (if I'lii'tland, in tlic Inilcd States, this de|inneul lieinu In eiiininand (if the said stcanilmat nr vessel. 'I'liat .lulin (', liraine, 11. ( '. lininlo, |)avid < (illins, Itnlirrt Clilluid, l/iuiis Seely, passeii; 'els (III Ih aid Vi .'aiie, Til II I llie said steaiiilMini uv V( ssi I prdceeded nii her said vnviiue. and while mi lln said voya^re, this (|e|i(iiieiil liciny in ('(iliiliiand of said steaiulmiit nl' Vosid, llic said vessel then lii'iii); <»li ihe liiy:li -ens alidut twenty miles lairth iiurlli-eiisi if ( ii|i in the United Stales i\f .\iueiiea, (in the seV(iith dav (if I Mci III- lier instant, eeilain i)assenK»'rs (in IkiiipI the said vessel, namely, the said .lolin ('. r.raine, H, ('. I'rnoks, David ('(dliiis, Kolieit ( Titliud, I, inns Seidv. (iems'e lldliinsmi, (iillieit (ox, Ivdheil Cox, IF. A. I'm ind Ji McK lunev, so h( |iiisseiii;cr> (111 lidiird the lid sleimilioiil or vess ith I (U'ee and ai'iii- (III the hij^li seas, in and on honrd the said sleamlidiit (ir vi's-id called lln- ( III ■•'iijiKikf, ill a ceilain idiiee iqidii the hijih seas, distant alioiil twenty mile-' iVdiii ( ape ( (id, afdi'esaid, then lieintf, in and upmi this depdiieiit, and npnii dtheis the mariners then niivit;'iitiiiLr llie said vessel npdii the said V(iyii:.;c, ly, and piratically, did make an assault, ain) nialiciousiv, .illullv, feh lnlllU^ this deponent and olheis, the said nuirineis, llii'ii and there piratically, Icloai oiisly, wilfiilly, and nialicionsly, did put in liodily tear and dan;ier of tlici lives, on the hi>,di seas aforesaid, and then and there maliciously, wilfiillv donionsly and piratiially t possession of the said sti'aiuhdat (ir vesse I iind the eiirgo thercol'; the said steamlidat or vessel hi'ing under the charj,'e ai command of this deiidiient, and there and then, with force and arms, timk li ■1 id steaiuliciat or vessel, and cargo of said vessel, fi'din the can st()(K ii\' this depdnciU and the said mariners, against the will df this depdiient and the said mariners, anil then and there, with force and anus, upon the high sens aloresiiid, in the plaee aforesaid, and within the Jurisiliction of the rnitcd Statesof A merii'a, piratically, wilfully, maliciously, and feloniously and violently did stt •d eal, take and carry away tiie saiil vessel and cargo, and the said nanici lUl- ell |ierson.s did then and there, with a pistol loaded with powder and lead lets, shoot at, and feloniously, maliciously, wilfully and jiiriticilly kill and murder one Oiin Scdiafllr, the second engineer, lieheing then a hand eui]>liiy(d in and on hoard the said steamhoat or vessel, the vov.'ige aloresau I : and the said named persons, having so taken possession of the said steamhoat or vessel- jint this deponent and others, the crew of said vessel, from the steamhoat nr vessel into and on hoard a pilot hoat, and the said named persons also then and there wilfully, feloniously, inalieiously and piratically, with a pisl(d loadid with powder and leaden bullets, shut at and wounded in the right knee iiml left arm one Charles Jolinston, he, the said Charles Johnston, then and there IhIii^ cliier mil II pistol loadid cidiisly and pit lie, (he said .la Ixiiiid ihe said |iirsiins, liavin)j •iiid niiineil pel ininmitled, to a nil ihe high sen New Ihunswicl mill hoarded he liuat or vt'ssid a iif the said shi| liiiard (if the sa if llie persdiis iil'nresaid, and t ( . liraine is \\iv Apprehend l.iinis Seely, < .liinies M(d\ini i'lilice Ollicc, \Villetl, of the iiiiiriiier, made vi-nr of diir 1,11 Mils, ahiiiit twe "f America, uu iiiidicioiisly, wi Is,-iiic Will'ett 11 iiiiuid of the s' K Vessel helong III' America, am "f New Briiiisv ami dollars of iVuni the port ( I'lirlland, in th cally, felonidiu "lliers, the ere OK NKW r.lMXSWicK, :i. .|;iv ol' |)('ci'lilf)i'r is^llcil his w ai'l'lllll (.'>) to ;i|«|i|flii'iii| fry- l"ii-t|i(it lit and woiimlcd in tlii> cliiii one .hiiiit'< .IoIhihoii, he, tlif Hiiid .liiiii'.'s ,)iilii)yon, tlu'ii iiiid tlii'i'f litMDK cliicf ('ii^iiu'i I' ill iiiid on hiiiiid ilu> Niiid vessel; and this dcpoiu'iit fiirtlu'r niiitli tliiit (lie siiid niiinod licrHoiis, liiiviii^; >n tiilxfii possf^siiMi of (lie 'iiid slcMinlioat or vcsm'I, (licy, the MJil iiaiiU'ij itiTsiiiis, procei'di'd fioiii llu' said |iiacf wiicrc the ^.aid oIUmicch Wfre rniiiinillcd, tci and l('aiiilioai or vcs^oi hoarded her, and iinincdialciv lodk ( liar;;i' and coninianii of liii' said stcani- iiiii I aniiid vesstd, llu- said .I(din ( '. iirnine appeared to havt euiiiinand Tlitit until tho said John I'arker l.oeke eaine ( in 1. 1 Ihe persons whii sii piraliciilly took pos-o.-ion nf tjic >aid ship or \'( ■i ifiHcsaid, and this >nent I'liriher -aith that lie veriiv lielieves the said .lidiii I . lira! lie is imw in the < 'ilv of Saint .Iciin, in I lie I'lovince of New Ilriinswiek. hi(,'ned !«\ \i Wiii.irrr. Worn at the ( 'it y of Saint John, in the ( ily and County of Saint .lohn lliis -Jotli (lav of jleeeinlier, A. I)., iSli;!, hil'ore iiu'. ( Signed ) II. T. (iii.iii.itT, y. M. Utnl .1. I\ W\Ki!ANr I'oi! riiK Ai'i'iir.iiKNsioK ol' riiK l'nisn\-;i!s, I«>ti:i riii; I'lii.KK .M.\(;isTii.\ri;. > II V (Ul\f Milhli /'((r-r Ojlii'fr (if Ihr ('ill/, nr ('Ih/dinl < '. mil/ III' It Inl,, Apiui'liend .John ('. I'.raine, II. (', I'rooks, Itavid (.'ollins, Uoheil (lilliird, i.iiius Seely, (ieor^e Koliinsiin, seventh dav of Deeeinlier aforesaid, with force and arms. iiialicioiislv, will'nllv, felonionslv and piriuicalh iiiiule an assault upon tlie .sai Willett and others, the niMi'iners then on hoard, and in eiiar'^e and eo 111- iiiaiid of the steamboat or vessel named the < 'hr.ntiin'tkr, the said vessel being it vessel belonging to one I.enry H. Cn ■iti/en of the I'nited States of America, and being of the value of sixty thoiHand dollars of lawl'ul money "f New Hriinswick, and having on board a cargo of tiie value of ciglity tlions- aml dollars of like lawful money, and the said vessel being then on a voyage Iruin the port of New York, in the I'nited States of America, to tl le port of I'lirtland, in the United States of America, and having then and there pirati- tiilly, feloniously, wilfully and maliciously iiut the said Isaac Willett ami •ilicrs, the crew of the said vessel, in fear and danger ol llu-ir lives on the . It ^f ^'l 2ii; \i(M":-Ai>Mii{Ai/rv UKrouTs ■1 tain pi'i'soiis tlicrciii naincd. ii|i()ii wliicli warrant l)a\iil 'l',',|. ( "iilliiis. .lanic^^ McK'iniicy, and Linns Scclv. |iaitics nani\i'i: SKI tlicrcin. \vcr(' anx'.-tcd and hroiiLiiit Itrlorc Mr. (iillici't Uir cNMininatioii ssi'ssii)n of tlie said vessel and the ear^o tliereof, Jiiid witli liavinij; tiien and tliere fcdniiionsiy, wilfully, nialieioiisiy and pirati- cally stolen ami taken the s:iid vessel and ear<:;() npon the hif;h seas albre-iaid, and also tor liaviii^ ..t the time and plaee aforesaid, feloniously, \vill'nliy, iiiaii- cionsly and piratieally, upon the high sras aforesaid, killed and iniii'deri.l one Oiin Schafler, in and on l)(iar(li''iioii to tr\ lot- 1>;<'1 !lic ( nilll )tK'ii('e' of piiMcv : tliat lor tlic trial of |iiracy a sjiccial '|',,,, mission must issiu' and a (Onrt l)i' >|ii'cially (•on>lilntc(l ('iiksapkakk tor tilt- ]iin'|iosc: and that such ("ouri is distinctly iiro\idcd t'lir hy the Imiicrial Act. M|ii)| hat the warrant was insnllicicut. it d •1,;,.! oc> not n the face lads wliicli arc essential. nmU'r lln' treatv ,illi the I'l'itcd States, to hriui;' this matter into the ("o\irts l' this TroNincc. oi' to create the special jurisdiction, which iiahK's us to ai'rest [lailies undei" those cliai'u't's. [Mr. (iray •Itc the case ot Dilh itl (III. cliaru'ed witii an oltence on tlie sea th lirNdud I'l'ovincial /jui'i Mli<'tion. who was arraiu'iied heloi'e .liidLi'e Parker at the last circuit, and disci i a rued. .Vnd Mr. W'cldon cited the case of the hriu' l'jli:ii. in ]''^47. ] • '). Xot only is the warrant insutHcient (Ui these ^-I'ounds, hut on the face ol' it is had, as chari>'inti' two distinct oftences niahl'.' hefore two different trilMinals. There outi'ht to he i\v(i warrants. Ml'. ( iray thouti'lit these ohjections fatal to any proceed- iiiu's. Mr. W'ctniore replied at some leiiu'th. and read a larii'c portion of the lm|terial Act ])asse(l to nivc eii'ect to the Ivxtradition Treaty. \\v t-laimed that cverythinu' so hir \\a< reiTular. and that tln' maui>irate could not !z<> hack ot tIic warrant, wliich was sulHcient authority lor him. The •istrati' told Mr. (Jray that there was proi)ahly soiiicthim;' is arii'umeiit. hut that at jtresent he would proceed witii lIUl!. ill ll the iireliimnary I'xaiaiuation. and it he decided he'ort' tiie '■;isc was throuii'h that he had no Jurisdiction, he would ifive the prisoners the heiielit of it. The followiiiii- witni'sses were then examined : i;\ MiKXCI': Of c \!'T AIN \\ii,i,i:i"t, Captain Isaac W'illett. sworn : An; a citizen of the I'nited States: li\cin IJrooklyn: a seaman foi- thirty yeai's : know tln' ('/i(.-iij)<'(i/,(\ owiK'd hy 1! r>. Cromwell, also a citizen ot' tile I'liited States: was master of hei' in I)eceml)cr. and had ht'cn for sc'Vi'iiteen mouths: she was rehuilt in New ^'ork alidiil three years aii'o: previous to that she was called tin; T'lllcii. [Mr. W'etiiiore aski'd where she was reiiistered ? 218 VK^K-ADMrKALTV KKl'OKTs IS''* IJotli Me-ssrs. (ii'iiv and Woldoii ohjoctod to tlu' (jiu'stioii n^ TiiK iiiii>r()|)er. Tlie inaijfistrato ai:;rL'C'(l witli tlicm.] Duriiitr tin Cuksai'i;akk seventeen nioiitli?^ the vessel ])lie(l between Xew ^'()^l^: itiKi I'ortland: she had a eoastini^' license. [Mr. (Jrav ohirctcd to any eviden<-e respeetin_i>' contents of this license; oKjcc- tion sustaini'd.] lie had the paper nntil it was taken awav tVoni him on hoard the ship. On tlie 4th and ilth Deccnihci' I had charii'c ot" the (.'/h st/juit/.-c, then lyinsx in North liiv<'r takini; in cartjo for Tortland. Most of the frei^'ht was taken in on the '>tli, Saturday. She carried ]iasseneller. was worth $()(),()0(l to 87<).0(M). Tliciv was an assoi ted caru'o H our, siii>-ar. wine, and such lik Do not recollect the owners; tjuid iiiii' there doini:; nothinii". He pnt handcntfs on each wrist. The irons could hi' made small or lari::e. They put nu' into my own room: I coidd hav»' come out when I pleased; no use tor them to lock the 'ineer, except what I heard tVdiii the others. I was contined an hour, when Fan* and ;iiliiiu' master Kohinson came to nn liev didn't av IIIIK li, hnt took me into the cahin ; there 1 saw some of tl le (itlier passengers who were not concerned in the affair. While I was theri' the chief mate, ("hark's .Johnston, and chiet' enii'ineer, dames Johnson, were hroiiu'ht in wounded; I had heard reports of tire ai-ms. The mate was womided in the right knei- and left arm; the wounds appeared to he iiiade hy pistol shots.' I saw the K aden hall taken out ot ifered considerahlv from tlu' knee. he mate arm. II e sui 11(1 111! t so much from tlii' arm. Lieutt'nant Farr took the hall t of the arn The chief enu'ini'cr w; wo;in( led 1 »v a iiai in the hollow of the chin. Farr said he woidd u'et the alls out of them if he could, and tix the wound? Tl le hief mate laid on a lounge until he was put on hoard ot the ildt hoat. I remainein until eight o'clock next mornmg. Tl le irons we re then taken off, and Kohin- III went up to my room on deci< with me : I was in the Kiiii a few minutes and returned to the calun. When ou iiecK I saw (N)llins and tSeelv there ■^eelv was s( ruhhiiiii- i ■2-H) \[('i-:-Ai)MiUAi/rv KKpoirr isi; TlIK lil'iiss oil one ol' t lie tililln'I' liciids : the ntlir (IK I not iililifnr to 1h' doiiiLi' aii\ t liiiiu' ill iiiirticiihii'. ( 'oloiu'l .lolm ('. 15 1- llllr Cni>Ai'i;\Ki: to(>k my slii|i"s papci's from me in the at'icnioon Ix'loi-c 1 wa- liiiidctl in the pilot liont. Uraiiir sccmcil to Ikinc cominaiKi >t' llir \C>S(|. Shr Wiis taken t'i'om me li\' tlicsr |iai|ic au'aiii>1 in\' will and consent aw Mr. M.K iniiex III! iioard the vessel. Tliev seemed lo lie alioiit the \'essel. and appeared to he eating' the liTnh npas ra>t a> possihlc •nil t recollect of seeing- .\l(d\inney doiiiu' anything:'. The perxm who was na\'iu'atinu' the vessel was named IJoliert Oshinnc. a passeii^'ei'. one of the six who hoiiu'ht tickets in Xi-w NDik, None of the pai'tic's named in the wan-ant liad tickets. The first land we imnh' aftei' they took possession was Mount Desei't. I asked them wliei'e they were u'oinii': they -aid (Tiraiid Manan. 1 asked when' they intended to land iiie: they said St. .lolin. Monnt Desert is on the .\mericaii coast. east of I'ortland. I wonid not sec it if I wefe |H'osecutiiiu- voyan'e fi'oni Xew ^'()l•k to I'ortland. Alter passing; Mount l)esert we saw land east of that place. We proceeded te Seal Cove llarhor, (Jrand Manan. I'he hoat was lowered. tl iree or lour men wen t asl lore, remained a litlle wliik\ am eaiiie on hoard aii'ain, wlieii the steamer lett and came up tlic hay to St. .I((|iii. Next I was taken up to my looni hv Brail le aiu 1 r iirr arr made a eojiy of UraiiH instnic ni(inc\ tions and Ui'aiiK' gave it to me. Ih' or(h'i\'(l nie to '/\\v \\\ tlie coastinii" license and permits for the caru'o. and the I had collected from Uraine for his party, in all 8^7. Ih jisked for the money he had. paid over to me: it \vas my I'liiployer's money. I knew it woiihl he worse for me it' 1 did not. 1 handed it over apiinst my will. Uraine had ;i pistol in his hand at the time. 1 handed money, slii|iV papers and jjermits to him. The "■ [lapers "' were the slii|>V •• coastiiiii" license"" from the New ^'ol'k ("nstom rioiisc. under which she was coastiiiii' at the time, as re([nired uihIci' the American law. After this they (Pn'ainc and I'arr) took me away from the room, took me aft. and ordered iiic to stay there. We then saw a pilot hoat. We weix' on our M'ay to St. dohii. The jiilot hoat ordered us to stop : some one canu' on hoard the steamer from her. staved a few iiiiniiti's. am III! hoard an the pilot ho; III' the pass( .liiliiisoii aiK {'(iiiiior was tii'i'iiicn and wild went ( .loliiiston, ti loiir sailors, and live pa? thirty mile? Maine. Tin ii'iiiaincd oi The steamer :;u (d' us. \ r\ciiinu' : th ill St. .lohii lioiit from a 1 with tiur of the jiartit^s I'.verythiiiii' " these prisoiK tlleV Were o mm Would v ill cliar^'c of as-istiiiii' hill rnal. I don iiiiythiiiii' cX( Cross-exai war ill my cc ill,-;' thcmsel' [Mr. WetiiK iiiu' a state o iK'l|i-e could ^^tates are c ('aroliiia. S( lalxMit oiie-t ih'iil of the OF XKW I'.IUXSWICK. .}.) 21 iiiiiiiilt's. iind iTluiMicd. Tlu'ii ('iiptaiii .lolni I'iirkcr cimu' l^*'' nil Ik )iir(l ;tiiil iiiitiai'cntlv took fdiiiiiiiiiKl. Tlirx' tlicii took TlIK the |iilot l)oal ill tow and steal lu'd up lo 1 )i|>|iur 1 larl»or. All < ih-m-kakk III' the iiassriiu'crs and citw, i'X(h'|i1 two ciiu'iiu'crs (.laiiU'S Jdliiisoii and Aiii^'iistc Striclu'ck) and tlirt'c tirciiicii (ratrick Ciiuiior was one), were |nit on l)oanl tin- pilot lioat. Tlic tii'i'iin'it and I'liuinfcrs wcri' kv\\\ a^'aiiist their wil who \V( stoii, till- chict' mate, I)anii'I Henderson, three hovs and I lose ■nt on hoard tlie pilot Itoat were inyseH'. (diaries liiliii liiiir sailors, whose names I do not recolh'et, the stewardess ;iml ti\'e passeiiu'ers. ( )ne ot the pa-^st/iiu'i'rs helonu-s some iliirtv miles hack of St. John, tiie other tour hel()no\.(l to Maine. These H\e pas^eiii^i'i's had tickets. Ivoln-rt Oshiiriie iviiiaiued on hoard the (/!(■■t. .loliii ahoiit four on Weiliu'sday morniiiii'. I u'ot a lii);it from a hiii'ship near Partridu'i- island and came to town with liiir of my iiii'ii and two passem>'i'rs. From the way the i)arties acted in my sti'amer I was afraid of my lite. Kvcrvthiiiii' "'Vas taken aii'ainst mv will. I saw one or two ot' rhcse iirisoners on watch: tiiev were on dec su[»pose(l tln'\ Were on watch. They seeiiUMl to he actiiiii" us other iiii'ii Would who were on watch. IJraine's jtarty assisted him ill cliar«i'e of the vessel. .\s tar as I know these men wen- as^istiiiii' him. I ■:?■■*&■■ \ &^''' •)■)■) Vl( IvADMIIiALTV KKTOUTS l^*»l C/()iit<'(U'rati' States, \ never lieanl ol' Mr. IJeiijiiiniii, Con- TnK t'ederate Sei'retary of War. I have Ar^/iv/, tliey sav tlu'v liavi €HKHAiM:\ivKa i;overiinieiit. 1 have read Lincolirs iirochiinatioii of uaf a<::ainst tlie Soutli, orderiiiii,' them to (K'stroy the itrojicriv of tlie South, hilt 1 (h» not I'ecoUect its contents. I iu'\cr todk notice ol' it to [I fere the witness was sto|)iied.] Parr '//'/ jait a pistol to my head in the pilot honsc ami said he took me prisoner in the nanu' of the Sonthei'ii ("on- federacy. They ]>nt the irons on me ratlier hard. Th('\ did not say anything' about taking- the vessel in the nanu' ol tlie Confederate Stati's then. After they took the liandciitK ofi' there was always a y-nard with me when f went ahoiii. I did not see any act of violence towards the passcnu'ci'^ after the capture ot the vessel. The handcurt's wen- aNo remo\'ed from the officers. I left a cojiy of the '' instnir- tions," which Hraine K'ft with me, in Xew ^'ol•k. [Mr. (iray asked the captain the suhstance of these '"instructions: " Mr. Wetmore ohjected. Mr. < Jray aru'ned the point, ami then read frijni mannsci'ipt a co|iy ot ('aptain Parker's onKc to Braine, (which Cai>tain Willett had pnhlishcd in tlu' X.Y. llvntlil and othei' papers), and asked the captain if tiu' copy was correct. The witness said it was nearly correct. Tlir name of tlu' sailinu' mastt-r in the co|)y handed him hy liraine was (ieori»-e liobinson, not Tom Saver.-- : the name et the eTiii!;ineer was not y'iven in it, and the number of the lacii stated was eleven, not twenty-two. In other respects Mr. (i ray's eo[>y was correct.] (6). The Confederates ke[it ef (G) Orokrs i-roa[ Cai'taix Pahkki: to Lnct'T. HitArxr:. OiiDiats. To Lieut. C'onmiaiuling .John C'libl)on Braine, You are lierebv ordeitd i" l)roeeed to the City ot' New Yori< and State aforesaid with tlie followim; officers; 1st Lieut. IL A. Parr, 2nd r,ieut. David Collins, Sailing- Master Tihm Sayers, 1st Engineer Smith, and crew of twenty-two men. Yon will upon arrival there engage passage on hoard the steamer and uh' your own discretion as to the proper time and place of ca[)ture. Your action towards crew and passengers will be strictly in accordance with the President- instructions. You will as circumstances may permit bring your prize to the Island of 'rrand Manan for further orders, Seal Cove Harbor if accessible, (Signed) .Joux Parkkr, Ca{)t. C. S. Privateer Retrihulion. December 'Jnd, 1863. '■.li! >' OK NKW UKIXSWICK, my private iirojicrtv. one doiililf hiinH'llcd umiii, om' slnn'Ii- i'**!* hiUiTllctl, five five Imrit'llcd rcvolvt'i's, aiid ouv six l)iirrc'lk'd 'p,,^ R'Vdlvcr, (I did not coinc out ot'iiiv room ''in wliiit tlicv call ( iii:-iAi'KAKE 111 y sliirt tail, th 'IIk'V kept nic at't and iilundiTcd niv rooni. Tlii'\' ti»()k tlii'cc coat missed tlidii wlicii I coiiinicnci'd to pack ii|i, 1 lu'oiiu'lit iislioi'i' my clock, cin'lit cliacts, sex- tant, tliree hooks. The jiasseny:t'i's also hroiiu'ht ashore their nonev o\v ,11 thim^s. r did not see IJraine iiivv the ]iassenu'i'rs i to taki' them hack to New ^'ol'k. 'I'lie crew l)i'oui:;ht [tart of their thiiiii's ashore. They |iiit us into the pilot hoat six or se\i'ii miles this side ot j)ipper llarlxir. I did not see ;iii(l di» not know that the Conrederate Hau' was raised ovi-r the vessel. "^Fhey firt'd two shots at me. and 1 don't know liow many more. The first two shots were fiivd at twelve fot't. They must have heen had shots. The ^ 'Ar>7//)(v//,r liad two six-]ionnders forward, and of ammunition half a keu' of iiowdei X. itl o cutlasses. The Confederates who cut out the Ciild) (\is/,itialliiiior<\ ami xniictiiiio to I'orrlaiid. iliali. hail i>i'('\ioiisl\- iici'ii ( all.'d tlir Tofi I'll, iMit WlU'll -lie U;i- '<'i»illlt lici' iiaiiM' was cliaiiLi'cd lu' wa- owiK'd ill \ rW ^'o|•k l>y II. r>. ("roinwcll. Slic \\a> hittri'ly ciniilovcd ii I \\\r Svw \ ny\<. ami Portland. She hi\' in Xoiih trade lietWeeli lii\'er. \ew N'oi'k. at I'iiM' !•, on heceinhei' 4tli and .">t took in eoii-ideraii|e eai'u'o. Slie had and eolton. and was neai'lv I'n" I. aim a ii'i'eal ileal ot wm, >lie lelt (»ii >atnrda_v .")!! altoiil li'iir (("ejock in the at'leniooii. She had twent\-t \\u his wa> not an nnnsiiallv lai't:e nninhei le eiH'W iniiM- passcnu'ers. siiiiU'tiiiies had lil'ty, or sixty, of sewnty. 'I'l hered all told — im-liidili;.:' the sti'WanK'ss — i'ii;-liteen. I jiaiij no partieiilar attention to the passeiiii'd's, a'nd the only one I knew was IJraiiie, who had het'ii a |tass('iiu'(^r tVoni N ^'ork to Portland alioiit a tortniu'lit het'ore, and then cW w it'e and ehil I with liiin. lie then said he had just II HI a eollle le x'oyau'e Msnally oeeiipieil tiiii'ty-six or from Mnu'land. T thirty-si'Ncn hours. ( )n Sunday niiiiit at tweKe o'eloek my ••wateli "" was ; to tlie vessel. Tiiey told nie 'ouldn"t see noltodv, liev tl len locked me m iii\ room. Ahout ten minutes after I he;ird a noise as it of a man falling' on the ><•»'* III lo tl le |tnol lioiisi'. wlu'i'e 1 sat III a coriu'r, llIK Alioul twciitv iiiiiiiitcs atter, iJiaiiu- caiiu" in and said that ("iiiii»Ai-KAK*: ilii' second eiiii'iiieer had lieeii kilied and thrown overhoard. Several of those fellows went in and out of the pilot house while I was there. The prisoner Seely, who seemed to he ki'epinti" watch forward, wt'iit in twice to warm himself. A liii^tall fellow, with a loiiy; sandy heard, wasstei'rinir. Neither <>!' ilie other prisiniers went in. lie stayed some time there. One of the other fellows, an ofHcer, came to me and asked iiic where the paint wiis; I told him in the ]»aint lockers, 'riie tifKcer then (H'dere(l me to show him where it was, and I went down and showi'd him. flic otH<'i'r said they wanted III paint out tlu' steamer's name and the yi'llow streak on the funnel. The oiKcer ludd a jtistol in his hand. 1 asked him to ha\i' the irons rcmovt'd, hiir the ollicer refused. Tlu'y were not taken oti' unril the next niorniiiir ahout 7.'i<> o'clock. I was taken to the passenu'er cahiii and found the mate there wounded in the ri_«;ht lei; and left arm, lyin<; on ;i mattress, and tlu' enuineer wounded in the chin, and ctli; rs of the crew and passen^-ers. I asked Hraine to ;i!h)\\ me to sit hy tlie mate and attend him. llraine said hr would see what could he <) up and i^et reasenirers who wi iv put in the boat had been taki'ii prisoners like the others. The steamer towed tlu'iii to within about \]\vvv mile> "t (►K NKW UUINSWICK. 2-27 r'iirlridi^c Isliiiid. iiii«l tlicii let tlictn t iHiiit imtd tt'ii <>' •lock iK'Xt iiinniiiii;, ( iiiiMAi-KAKM wlii'ii we were Itfoiiu'lit to tlic sifiiiiicr New Miiiil;m to Saint .lojin iilioiit t'onr o'<'locl< in the niorniiiii'. I was in hodilv tear troiii tilt' t inn- tiif vessel was taken Iroiii ns and oiir crew III liel itil I i;ot (Mit of the pilot lioat. I am not in lii*' liaMt (d iiy atVaid iiiuhT ordinarv eii'eiunstaiKH's. The jtrixniers oai"tl the steamer wlieii tlu' puot Itoat was < as iiiid wi-nt oH" in the steamer; they had no place to land. Some ot' the Jiarties ifot a staii'i' over the st»'l'ii, tor the pur- pose of paintinu," out the name of the st«'anier, and they said iifterwards that they did s(». They ma(h' onr nii-ii pairil the yellow streaks on the smoke pip*' hlack. Tlie ClnsninuLc cai-ricMJ the Stars and Stripes — the American tlau'. I nevi-i- knew of her sailiii'j,' anywhere e.\ee|»t to American [loi-ts, and t'roni one Amei'ican port to another. The captain and crew had no control over her, or cai\ii,'o, aftei- she was taken pos- session of on Monday morninu'. The second eii^'ineer mi^'ht |iossil»ly yet the apjtaratiis for rlirowinu; hot water withont lielp, bnt I doniit if he couhl, at all events lie could not do it in less than twenty-tive minutes, lie would have first to i^o on deck I'rom his eni:;ine room, rlieii uncoil the hose from the hose liox and extend it alonu" the deck, then attach it to the ifoose neck on deck, tiien take it down to till' eiiii'ine room and put thi' machinery in motion iiiid aftei' that return on (U-ck to iisi' the hose. Mr. ( trav said a 11 tl lis was immaterial, as if a man iindi-r -iidi cii'cumstances as would create the impri'ssion that he liad the means of throwiuii' hot water imniediately tln'cateiied tn do so, tlu> effect would he [U'ccist-ly the same as if he ac- tually had till' means of carryinu' out such threat. The witness also said I heard JJi'aine and the chief eii- trincer dis|)Utinii:: as to whether the second eiiu-incer had tired a pistol shot. IJraine said he must have tired the first shot. Tile enu'ineer denied that he had fired, and said he would lay anv wai2:er that he could then, if I'l-aiiu' would let hini •2-2H \'IClvAI)MIU.\l/rV UKPOKTS 1^"'' iimkc tlic sfiircli, titid iliat jtistol (it 'm prortiiiiicd llu- |ii.itt)l TiiK '*^liaflir (twiu'd) in tlu' hi'coikI t'?iiriiii'»'i''s room in liis laul. C'lU'XAi'KSKK I ln'iird artci-wanls tliat ir v^iis louiid. I saw Mood on tin- |tliici' wlicrc tlit'V fold iiic Slmtrci" liiid t'alli'ii. Sliafli'i- was iii'arlv si\ Tcct lii'jli and a stonl aide man. lie was a vciv kind, ijcnlN'manlv man, and vcrv nnidi liked Ity tlic wliolc crew. III.' \vasal»ont 4'» vt-ai's of atjc, and I often lu'ard liiin sav lie was horn up North ITivcr, in tlic State of New ^'ork. 'Die onlv names I i-emendier iiavini: luard wer«' those of Uraine, Parr, an the ('Onl'ederate States, 1 kiU'W what they meant. I did not sou the (\>ntederate Ihii;- run up. I (U< not know that the Xortii has taken numy Soutluirn ships: they may lia\c taken some, hut I do not know liow many. I did n(»t sec the ordi'r i:;iveu to the captain l»y IJraine; heard somethiiiif ahout it. T\iv captain told uiv they had given him theii' namoH. hut did not tell me tliey had ju;iven him a copy of the order, I was not treated with anv uukindness, hut the en- ifinei'r was kept (Ui duty aftei- heiiig' wounded, and hlei'dim; from tlie chin, 1 was allowed to take sdl my clothes whc?i loavin*; the vessel. The cotton we had on hoard t^aiue from New York. C'ouhl ;iot say whether it came trom tiie South- ern States or from Europe. Cotton is oru' of tlie chief prti- duetionH of the Southern States. Have known cotton to come from Europe. No one was hurt who did not make any resistance to the capture. Did notliear Hraine say that lie gave orders to his men not to injure any one, unless in ease of resistance. On Xlonday morning after they had secured possession of the vessel, all of our men, that I could see, were liberated from the irons. One of liraine's men told me that if I would keep quiet, and not attemjjt to re- OK NKW hKCNsWICK. 229 rupture flic Vrssfl, tlicy WrxiM take cniH' (if lilt'. I Itrlii'Vf IHtit tlic |iassciii;('rs ii'iif ill! tlicii' liiu'ifiiiT". I lo^t iiotliiiii;, ami am I'm.; not aware tliat aiiv u|" tlie tttliers lost aii\ thin;;, t-xeept \\ hat ( iik>u>kakk the ea|-taill H|ioke of. Ui'-eXatllilllMl : TheV told me the\ weiT aetjliu' ill the iiaiiie of the ('oiile(|ei'ate Stati'f*. The ehiel' engineer wan forced to Work ut'tei' ln-iiin' woiimled in the eliiii. I do iii>t know what heeame o|" the second eiiuiliccr's lnl know lie wa^ :nieil w a.' a-lcc|( at tin- time .hnnhii-il S. ISIU. KVinKM'l'; or .1 \.M1;s .luMNSeN, .lames .lohnsoii (K'|tosed: Was horn in Irel.ind; Inre Iteeii a residi'iit of the I'liitt'd Slates toiirt(('ii years: am nnt ;i naturalized eiti/.eii (»t' the I'liiti'd Stati's ; follow the laisi- iiess of eiiu'inccr; know the steamer C/n sdjaii/,! : was chief ( iiijinee!' of the steamer (In siijuahi ; have heeii chief eli- liiiiei'r siniethinj; ovi'r a year: have heeii on lioard the steanici' (liiKdjHdLc tliri'c years last .li'ly: 'vas on ixiard the {% ,Sll/i (v//,r on the 4th and .')tli ht'cenihcr last: this vessel was ■iiiraii'ed in cari-yii^u; i»assenu:ei's and tVei^'ht hetweeii N( w ^Ork and loi-tland tl le sfeanii'l' had >oiiiethinu' o\er twenty passi'iiii'i rs on hoard on the ")tli Dt'ceinher : I had charifc of the eiiiiine on the .'ith : rt'iiiaiiied in change up to 1:2 o'clock at niii'ht : nothiiiii" nniisiial occurred on Satii!'(la.\' ni^^lit or on iiu:ht. MllKlaV lad charii'c ot the I'liti'iiie ai!,'ain on Sniida\- n until 12 o'clock : was waked n|> hetwi'cn 1 and '2 o'clock on Monday morning' l»y the report of pistols; went from my loom on deck and found Mr. Shatfer lyiiiii' on . Cromwell, of Xew Vork; I raised the second I'li- uiiieer ill) when I found him lyinij: on deck on the .Monday iiiorninsj:; of tlie eajjtnre : [ called him hy name ; ho was dead and Ivint: with his feet down the hatchways: tliis was he- 'fM: ^'-i ill 280 18fi4 TnK VICK-AD.MIRAI/rV K'KPoKTS lut'cii one ill 1(1 I wo o'clock : I saw no Mood tlicii. it was (piiti' (lark : saw two s|iots on his neck which slu)wt'(l hlood ; 1 tlitn Cm ;s.\i'i;aki- wmt l)clow to the \)\',\rv h'oni which tlic second enn'nieei' ca lllc up: tlu'i'c I u'ot a |iis!o] put to luv head h_v Collins : 1 caui^iii him hyllie arm, and told him to hold on: then a man Ixsidc Collins, whom I took to he I > rook's, shot at nie. the hall takiii"- •fKect Ml the chin. tl le ( Uestlon \\ [Mr. ( ho shot tlu ''VAX ohjecled to witness answeriiiL;- ecoiid eiiii'ineer, >roo|<- made a statement, it appears, to the witness with ret'ereur,. to the shootini;' of the secoinl eii^'im-er. which Mr. (irav.oh- ji'ctiuu'. the maii'istrate would n(>t alh)w him to tell, as not heinii' admissihK' in e\ ideiice.J I went across the deck 1 and lOK e to Wade. Wade did not aiiswe was 11 r )e I ow- ed at without a word heinu' ■^idd to me. I had tlie hall taken out of mv chin two days au'o. Jtwas taken out hy hi-, i'^arle,"!' iviiiiis Count\'. The mate, Charli'S -lohnston. Wi diot 111 tl le kiiei' and in tlie arm. Ii( e and I went into the kitchen throuiih a little hatch : we remained there tor half an hour. While theiH' I saw Mr. Shatter's hody ,ii'oinii' o\ (.'rhoard. There wvvv three or tour persons en<;'a«;'ed in throwiui; it over. K'new iioiK' oi' them I'.xct'itt Braine. The hody was thrown o\er Just as it was when lyiuii' on deck. The cook came to the kitchen. I aski'd him wdiere Capt. \\'illi'tt wa>. Ill' said he was in the cahin. 1 also asked him wdiat was U-oini:' oil. lie said the slii]i was taken. Rohinson, tlu' sail- inu' master, to(d< ine to my room to (h'ess. as 1 had only my niu'lit-clotln's on. I had l)een asleej). and was awakened hy the jiistol shot. Rohinson had no [)istol with him that 1 saw. 1 heard two or thri'c jiistol shots. Aiter dressinu- I went to the cahin and loiind the captain there in irons: Rohinson was with hiru : the mate was there wounded : I'arr was there takinii; a shot out of Rrook's hand : he then took a shot out of the mate's arm : I'arr then tried to take the shot out of my chin, hut could not, as he said ii Wiis fast in the cdiin : I do not reiiiemher to have seen any of these prisoners present : I had some conversation with l^irr: lie told me to keep the cold out of the cut: he assisted inc in wrappiiii;; it uik we had no conversation in retercMui^ tn the firiiii.': of the pistol. I spoke to Capt. Willett : I went OF NKW lUaWSWlCK. ii:;i Mith lv()l)insi)n to tl le I'liiiMMc I'ooiii t,) si'c it all \Vii>; iMiTlit tJK'ro: there was nolxxlv there l»iit Strieheek, the oilei' or 18W TlIK a-s istant ; I wtMit there au'aiiist itiy elioic . ('a|)t. W'illett (uksai-kakl asl; any danirer ot" tlie ship hlowini;" np, as Strielx'ek was not an eny'ineer, uiid liad heen on hoai'd the ship hnt a siioi't time : did not remain rliere loni;-: went hack to the eahin alter tellini;' the oiler liow nineh steam to carry : after heiiii:' in the eahin an honr went haek to the enii'ine room : thei'e was soini'one with me all the time — a u'liard. I mean : I was taken hark on the .-(■eond time to attend to the enirim' and see it' the engine all rii;:ht : I was tiien aetinii' toi' Mr. liraine : l>:;rnu' said was he) lad no eiiii'iiu' and that 1 would have to act ; I A\as not in 11 lit state to work, on aeeonnt of the wound in my cliin, which was hleedina': I had to he at tlu' engine all the time, as 1 had no assistance: there was someone on guai'd all this time; tlut prisoners were among those wlioAvere on guard; was not tlireat- thoseon li'Uiird were arme( 1 witl 1 ri'voivers ene( 1. T w •<) hv the name of (V)\, and two hv the name of Moore, Treadwell and Wade, and the three prisonei's, also Lieut. I*arr and J>rooks, were among those on guard over me: the guard was ehanged at stated times: IJraine had eonimand ot these men : these are all the names that 1 <;an remember tl lese men acted uiuU'r tln' orders of Braitu J' u'r, and the sannii; master: as tar as I could se< ihl Rol )inH(ui was the sailing master : was in the engine room pretty much all tlie t'unv : I slept on the loeker in the engine room ; I was not on deck much : did not see much that was going (Ui on dock: the vessel did not stop till she reached (ii-and Manan. She remained there t\\o or three hours : after leaving (irand Manan we sailed towards St. John, and got helow St. .lohu liarhor aiiout seven or eight o'clock on Tuesday evening : we remained at anchor. We stopjied hefore reaching St. 'ot for this; wf i^ot some wood from the schooner; we remained at the mouth of the river, and then ju'oceeded to Sand)ro, about twenty miles from Halifax; ourcoals lastetl until we i;ot there : got no additional crew at LalFave; ('apt. Parker went fri>m Sand)r(t to Halifax; for coal, but took no part of the cargo with him ; he returned wi<"h a schooner load of in;il, two engineers and two firemen ; Parr had not returned ; we e()mmence wiio were ■ft iteiimd and one oilnuin. 'V\ lel'e wa^ IMI ami steam up then. Nichols asked me who was on hoai'(l. I told hill). Wo tried to i;'et up steam, hut wi- had not coal iMiouu'li, and no oil on hoard. Ahout an hour and a halt' at'ti'r this we h-tt. and proceeded to Ilaliliix in company with the Kiln nn'l Annir ; tlu' ])■>. /'/A was hehind us; I staved in Ilalitiix until Monday las! : I'ai'kei". IJraine and I'arr had ehar<>v o\' tlie ClnsiijictiLr tVniii the time she was captured until they left her at Samhin. Oapt. AVihett and his eri'W liad no control over lu-i' : I diil not act of my own tree will, hut under orders trom tlicsi- peo[»l(.' ; 1 went to the second engineei''s room in eompaiiv with i'arr and Strieheck, and tbunl' the Confederate States : thev used a Secesh lla; in Shcl- hiiriie I cannot (h'serihe it: it did not seem ri^'ht to i nc c;n uiot tell how many t-olors wei'e in it : I could not deserihe t'uur weeks from now a •' i-aif "" that ! had seen to-day : it was net tliti Stars and Stripes. i'arr did not tell inethey liad taken the C/osti/idih for the Ceiifederatc States, but said tliat he and Uraine had tra\i'lled ill lier ahout a montli liefore for the jairjiose of takiiiii* her ; he also told me he had hei-n in the Sot\thern ai'my. and was ii released prisoner, hut did not say what part of the Southei'ii States he eanie from : he treated ine very ei\ illy ; said I 'ai'ker liad not fidlilled his word, and that ho would tiy and u\'t me away: they did not t^'et any new enirineers at Shelhui'iie — tiny would have to '' make them "" there : T was allowed to \io on deck alone oeeasionally, and took my Uicals in the <'al)iii: wdu'U the vessel was first taken l>raine told me he liad no eii^^ineor, and 1 worked the \es«;el to (Jrand Manan. I'arker then eami' on hoard : told nie he would lia\-e io keep Hie a little while, and asked nn' how much money I wanted; I said not to niind money. I would run the sidii •' ' '"'*' ^<> t: 1 suppose IJraine acted undei' Parker after the latter '■aiiie on hoard : there was a ixuai'd in tlie enirine room, in tlie tire I'oom, and on deek all the time: i'arkt'r said ijii 1 lielliu irne was ins native place : did not say he had l»een m the Southei'ii States: [had never seen him hefor V : we put into Shelhuriie. Lallave and Sanihro, and were ahout four miles inside Sanihro and ahout half a mile from tin.' slioi\! 2m VICK-ADMrUALTV KKPOKTS 18(i4 wlu'ii the IlJ/l(i iiiitl Ainiit took lu w hen I'lirk IT and TiiK piirty loft tliev took one l)oiit with tlioiii ; AVade must luivc CHKSAI'KAKKirolU' Oil ItOiU'll tllU ScllOOIltT, aS llO WUS t'oUIld tluTC hv S()l||r of tlie crow of tlio Klhi mnl Ainiic : I was loft in (•iiai'ii;^' nf tlio Chc>rooood(Ml to Halifax, liaviiii; o-ot onK'i's to that ottl'ct trdin hi-r <'oniniandor : I was kopt (^dy until thoy tfot onuinoiis: r did not oxjioct any inoni-y, nor would 1 havo taken any woro it oftorod, Ue-oxaniinod by Mr. Wotnioro: Tho watoh in the euiiiiic r(»oin and liri' room woro armed: I don't know whetiu'r tlir watch on ( W\ < was armed .hmnartj 11 /A, 18(14. Nfr. Wetmore put in ovidoneo : Certitiod eopios of the f< lowini^ Acts of Couii'ross : Act of Congress, 1819, cap. To, .Statutes at Large, ;} vol. h\\. (10. do. 182;). 182: an. ii; ), cai). 182:^ cap. do. dc 1825, cap. 87, 184 / , cap. M. id. (iOO. id. 721. id. 78!). 4 vol. !) vol. 174. Also proclamation of I'rosident Fjincoln, dati-d April iDtli 1S<11, KVIDKNi'K ol' CUAUI-KS WATTKItS. Clitirles Waiters was called and testified as folio w reside in Carleton : have rosiiK'd there twelve vears: !• tl 10 1 )ris()ners ^eelv and Mclv iiinev had Know no convei'satioii with Seoly or .\r(d\iniiey on the suhject ot tho I'apture of the Chcsapidhi' : had heard a yood many speak uhout it in tluir yu'osonco : I hoard their i-onversation in Lower Cove, in rin- (^ity of Saint .lohii : McKinnoy was present; the two Coxes woro present; do not know tho names of tho streets in Lower Covi' : do not know in whose house this eonvt'i'satioii took place; after ii-oinlan of the city, tlie OF NKW inilNSWK'K. li.iT witness pointed out Main stn-et as tlie one on wliicli tin- 1*^'>4 house was situated where tliese nieetinys and eonversations 'i'„^. too k jtlaee.] The house was on the riy;ht side of the street ; Chi*ai"kakk it was a worksliop; it was reaehed thi'oUi,di a vard : saw tlie last meetintji; I)y the ca]»taiTi if those present woidd go; 1 caimot say that I lieard any one assent; I was not present at tlic first meeting: I saw the jirisoncrs Set-ly and McKinney tlie same night that the last meeting t(»ok place, hefore the nii'eting; I do not know how many meetings were held ; \ had a conversation with McKinney and Seely on tiie road to the meeting, when the prisoners said they would go to the meeting; the two Coxes and a man named (ieorge Hohins(»n were with us: liohinson asked the l>ovs to <;o ; tiiev asked where thev were i^oing to, and lie stated tliev would fino : I went to the boat to see who wii-i goiui;': (»t" those men who were at the niei'tinu^ I only saw MeKiinu^y and Seely : they wiM'e on the iippei- deck of tin- boat; did not know whei'e they were ii'(»in<;; 1 hid the time of day to them : 1 was there about a (|narter to eiifht o'clock : 1 li'ft the wharf before the boat left ; I heard the steamboat bell riiiii' before 1 reached tlu^ wliarf: 1 was at the head (pf tile wharf when the fasti'uini^s were east oft": I saw tin' jiriHoners about ti\i' minntes before this. (-ross-examined l»y Mr. (iray : It was stati'd at the nicct- \uiX by Captain I'ai'kei- that they were lioini-'on behalf of tlic ( 'onfederate States to taki' this vessel : 1 think that it wa> stated at the meetin^i,' that this pi'ize was to be divided anionL'" the crew by the Confedei'ati' ( Jovernment : Captain I'arkci- stated that he had a eonunissioi\ from tlu' Conteclerate ressc(l at till' meetiiii>' that the \'essel was to be taken for the Cmi- fedorate States, or else they would not have <^oiie : at tin' time that 1 heard that Captain Parker and Lieut. 15raitic wanted a crew, 1 also heaiMl that they were officers in tlic (Jonfederate service; I heard at the same time tiiat tluy wanted to raise this crew for the Confederate service for the iiiritose ot purj takiu'^' tb vessel ; it was understood that •rew when raised was to I)e in the Confederate service. 1 diil not hear it sa!< that arr iiad l)i'en an < )fficer with (u'IicimI Morti'an; I was not sutHcieiitly close to see the pajter that Ca]' ov xi:\v liitiNt^wicK. Parker read, so as to he able t(< idi'iititV it : I did not sec the l'*<*54 iiiaik iipoti it : I was not siifHcii-ntlv mai- tlic iiapiT to sco it puj. so distinctly that if it was now put into niv hands I couhl Ciiksai-kaki iilciitity it: did not set' Braine tlii'i-c the Hrst niirht : he was styled Lientenant; did not reinendtei- thu. Captain I'arkei' stated tliat he was Captain of the Piivateei- lidrihiilitin ; went, to Ijawrenee Hotel for Captain I'arker, then went down to the place of meetinti". Ke-examined by Mr. Wetniore : I told von all you asked me. The vessel was to be a Confederate prize. I d(> not know what share we were to have. 1 think the steamei- was to be brouii'ht to (Jrand Manan to land lu-r passen£;;ers. There was some talk at the nieetinu' about taking' tlu! vt'ssel to N'ova iSeotia. It was talked amons; the men that the ves- sel was to be takt'U to Xo\a S(;otia. '^Flie (piestion was asked if the vessel was to i)e taken there. 1 did not lieai" it asked, 1111(1 1 did not hear the answer. T did not hear what the vt'ssel was n'oino'to Xova Scotia for. The men were to luive :i Awww I do not know what they were to have a share ot. 1 caii'r say that they were t(» have a sIuuh; of the vi'sst'l and rai'i,^). I did not hear when or where the division was to be made. 1 did not hear who was to make the division. I hcuni from Robinson that I'arker and Hraine were otiicors ill the Confederate service. I did not intend to ii;o witli the iiicii. I went to tlie nieetiuifs to see and hear what wa?} u'oiiiii' on. It was stated at one of the meetinii's that the men would be [irotected. To Mr. (Jruy: It was stated that the men would be i»ro- tt'cted by the Confederate (Jovernment. It miLjht have been intended that the vesst'l should t;'o to Xova Scotia for coal. .Jdii'iiirii 2\st, 18(14. Mr. Wetniort' ]iut in evidence: Certitied copy of coasting license ii'ranted to thi' steamer ('hi-'cifi/,i , I say that act was don,. umU'i' the authority and in the service of the ('oidc The other two prisoners made and siii'ned similar state- ments. TiiiitsiiAv, -jsth January, 1S«;4. The foliowiui;- witnesses were tlu'll calK'(l i'or the defence: KviDi-JNci-; OK .nniN uixn. John iviuii', sworn : I live in Carleton, livetl there all tnv life. I know two of the prisoners, M(dvinney and Seely. I know (/harles W'atters. I was jtresent at the meetint:: spoki'u el' by Watters, about tlie Chc-^aiicahc ; W'atters was there: Mc- Kinney and Seely were there. It was proposed to enter into the Confederate service at that meetinu'. I saw IJraine there, a man they called Braine. I saw a man called the captain: -e seal not (juite at tbe (;orner — a nnin's liead and shoulders. There i- jinother seal on it, on the right hand side;, looking like a Mot: I minded it when the man read it. I saw it afterwards in Mr. Gray's hands. .lett'erson Davis' name was at the bottom of it. T wont up and saw what it was when he liad done reading. Tliis is tlie pajter which was procUiced at the meeting. I swear this is tlic paper the man read at the meet- in*;. I jnade a mistake about the head and shoulders ot" (7 1 COMMIH iiiissioucd !in tilt! vessel cii liereiinto miii vate armed \ ai,'.iinst tlie I and those of tween tlie sal This coniii (iinfederate i OF XKW nurxswKMx. •241 flic seal. Il«' liml just doiK' reudiii"; us I wi'iit in. This l^^^-* i- tin- identical jtaptT (7). Xiik Mr. (ii'av otK'i's tin; pajuT in ovidence as part of what tookCntw.vi'KAKK pliiti' at thi' miH'tiniy. The niai;istrate ducIiiR's to rofuivo it nntil it is proved Lriiiuini'. ('rt)ss-('xainini'd : The seal on thi' I'itjht hand looked like a small blot. I cannot say on which side it was, inside (M* (II it side. EVIUKNM'K OV .lAMKS THKCAHTIX. James Treeartin, sworn: I live in C'arleton. I was present at the last nieetini;. Kinu; was there. 1 think Watters was ihcre. it was proposed to enter into the service ot tlu' Con- (7 I COMMI.SSION ol- TIIK C. S. I'lllVATKBR "KeTUIHI TI(»N," AM) TUANSKKR TO Captain I'aiikkk. Jkkkkuson Davis, President of tlie Confederate States of America, Til nil who kImII ni't ihenc preseiitu, — ({reetiny : Know ye, that by virtue of llie jiowei vested in nie liy law, 1 iiave com- missioned and do hereby commiiwion, have autiiori/.ed and do hereby authori/,e tlif vessel called the Relrihulioii (more particularly described in the schedule litreunto annexed), whereof Thomas H. Power is (Jommander, to act as a pri- vate armed vessel in the service of the Confederate States, on the high seas, a<;ainst the United States of America, their sliips, vessels, goods and eflects, and those of their citizens, during the pendency of the war now existing be- tween the said Confederate States and the said I'nited States. This ("onnnission to continue in force until revoked by the President of the ( (infederate States for the time being. Given imder my hand and the seal of the C^onfederate States at [h. s.] Riciimond, this 27th day of October, A. D. 1H(]2. By the President, (Signed) Jeffekson Davis. (Signed) J. P. Bknjamis, Secretary of State. Schedule of description of the vessel. Name — Relrihuliun, Tonnage — loO. Armament — :> guns. 2s'o. of crew — 30. ( Endorsed.) State of South Carolina, ) District of C'harleston. i I liereby transfer the command of the schooner Jtetrihution to Ji.lin Parker. Witness my hand and seal, this twenty-first day of November, 1862. Witness. (Signed) Thomas B. Powkr. [i.. s.] I Signed) W. F. Coi.cocK, Collector. (A M 242 VKMvADMIKAI/rV RKI'OliTS 1864 trdt'nitf States. I was iiitroMiiffd t(t ('ajitaiii I'arki'r. I TrrK lu'ai'd a iiiaii callt'd Mraiiir was tlit'ir. I askt-d the captain CuhXArKAKK what was liis authority, and h«' ])<>iiito4. Certitied copii's of the letters of the American Consul in Mr. Tilley, (1) and atHdavit accompanyinu" them, put in and read. KVinKXCK OK M'KK I', IlLACKIUIRN. Dr. Luke P. Blackburn beluii; sworn, said : I am a resi- dent of the (Confederate States. Reside ii Natchez, Missis- sippi. [ was ai)[)ointed ^[edical Director of the State nt Mississi[»i»i, in January, 1803. I left the Confederate States on IGth July last. [ am a native of the State of Kentuck\ . Have resided in the Southern States since March, 1846, and have been connected with the armies since the difticultv ])etvveen N'orth aiid South commenced. Am intimately m- quainted with Jefterson Davis, President of the Confederate (1) See ante, p. 208. OK Ni:\V MUINSWICK. 248 Suites. Know lii^ liaiKlwi'iliiii; ; lia\«' corn'siKiiiiKMl with '**•'•* liiiii. KiKtw tlif iifovisidiiiil seal of tlic Coiit'cth'i-ati' States. I'lif. A iH'w seal ami a new flai; were atl<»|»ti'(| in Mav last. Am CnisArKAKi a«(|iiaiiite(l with Mr. Ih-iijamiii, who in Octohcr, )H«I2, was Secretary of" State. The I'rovisidiial (loveninuMit was es- i;iltlishe(l in .\|»rih lH»;i. Mr. Meii.iamin acted as Secretary ot' War tor only a short period : lie is now Attorney (u'lierui. (\lr. (iray here |»l:ic»'(| in the witness's hand ('apt. I'arker's authority (7), and asked him to identity the siirnatnri's and M-al.] Witness: The siLTiaitnre is that of .leth-rson Davis, ami the seal is that of the Confederacy. I think that is the siiiiiaturt' ot' .Mr. Benjamin. The seat of i^overnnient was removed to Uichmond in the fall ol I sill. .\ very lerrihh' war is now ifctini;' (K\('M Ol' AI,0N/0 (1. ((U.K.MAX. .Vlon/.o (J. CJoleman, sworn : I am a resident of the Con- federati' States. Was horn and hrouii'ht up tlu-re. .\m a native of Alabama. I'revious to the war my father had larire estates in Alabama. ITave been in the Confeclerate sei'vice sinci! May, 1H(!2. My rank is that of a private. [Thert' was an objection raised to Mr. Cray askiuij witness whether at'cordiui:; to the jiractice of Coidederate service, etHcers commissioned for any particular duty have not power t(t (leleii;ate authority an Johnson's Island, from which place I esca[)ed on Xew VearV night. That was the coldest night I felt for twelve years. I rodi' Hfteen miles and Avalked some 120. I borrowed the horses I rode, or rather I took them while the farmers wci^' asleeji. According to the i)ractice of our service, ofHcers OF NKW BUrXSWR'K. 245 vomniissioncd to do a particular duty have power to uutlio- 18M rizi' atul appoiut otliors to do that duty, or aid iu carrvinir it 7,,^ out ; r liavo exercised it mysolt'. Such acts have always boou ruKSAPEAKE rci oyiiizcd Ijy uiy iicuoral oiKcer, and I suppose by the !;'ov- crir.iicut ; to my kiiowlcdi^e uo objcctiiMi was ever made. It is uo novel thiug for these ajtpoiutiiienis to he made. \\'lieii the persons so appointed to act have been taken pris- oners l)y the Federal authorities, they have been reijarded as prisoners of war. I was so treated myself. My field officer and two rankiuii; ca[>tains were shot at (lettysburt;. After that until woiiudi'd [ comi.,.inded the reij^iment. F was then uiiuble to ii;et off the field, and was taken as a prisoner cti" war by the Yankees, and transferred to Johnson's Islantain, to do a particular duty in event of there iK'ing iio lieutemint. The person appoijited to discharsj^e a ]'articular duty in this way would be respected and obeyed by the men. These appointments are not officially notified t' he general in command, except by the regular morning's reports. If a general came along and hoard of the appoint- ment of a subaltern in the manner described, he would re- <(>gnize it. Never heard of Braine except in coimection with the Ch(S((jH'ake affair. J)on't recollect that name among the arnivoflicers. There are so manv officers in the service that it is impossible to re nember the names of them all. 240 VR E-A1>MTRALTY RKPOKTS 1864 EVIDENCE OF E, TOM OSBORNE. Thk Kpliraim Tom Oslmnu', sworn : T l)elon«i; to Koiituokv: Chk6ai'i:akej||,j 5,, ^\^^, C(mYvi\vrnto service; luive been serving witli (ieneral Jolm H. Mori>:iin sin<;e he was a captain; tlic Yankees call liini a i^uerrilla; have been in active service two years; was on detached service the rest of the time: "was taken prisoner on the IfHli rFulylast; escajted trom Camp r)onfi;las on the 2\u\ December last; General Mortrau escaped from Columbus, Ohio, pre\i()usl\-, Accordiiii; t(» the practice of oui' service, officers commissioned to a ]»articular post, or to do a particular duty, have i>ower to delegate their authority to others ; I have known it to he the case. One year ago this winter T saw it done almost every day. The rejiorts of such ap[K)intments are made to the colonel, and from him to liis suiierior, and so on until it goes to head-([uarters. [Mr. Wetmore liere observed that these reports were most likely going on yet, to which the witness observed they might stop when they reached Rich- mond. The (|uiet, yet cutting, way in which this retort Wiis given caused some merriment in Court.] When persons so appointed have l)een taken jirisoners they have l)een treated as prisoners of war. 1 arrived here this morning; all of our ])arty arrived this morning; I have seen some account of the C/iC'^apcdh- aftiiir in tlie papers. EVUiENCE OK EJJEX LOCKE. Kben Ijocke, sworn : Am a Xova Scotian ; am a sea-faring man; am a ca[)t,ain ; Shelburne, 1^. S., is my native place: liave a brother called Vernon (1. Locke, who goes by the nameot Captain ]*arker. lie left Nova Scotia, about twenty A'oars ai::o when a bov. lie has beeiv living in the St; tcs ever since. l>elieve his family live in Fayetteville, X. C. I have been i'. Wilmington, X. C. Was in X'assau this sum- mer. Saw there a Confederate vessel called the Rcirihidion. She was called a privateer. She had the C^)nfederate tlag flying. Saw there my brother in command of the lielribntinii. passing under the name of Captain John Parker. lie was received and recognized as captain. He showed me his conunission. 1 asked him to do so. I asked him either tor -^. ,„ / OF NEW 13UrXSWICK. 247 his (*oinmissi(>n or letters of iniir((ne. The jxiper placed in ^^^* ]iiy hiiiul is the one he showed me at that time. It is in the x^k same state now as it was then. 1 remember the writinir onCnESAPEAKE the l)aek distinctly. My brother was on hoard of my vessel at Xassan. Had not seen him for twenty years. In conse- (|iience ot what F heard at Xassan, 1 found that ('aptain Parker was mv I other. Xe.\t saw him at Sambro, N. S. He was then in eoiiimand of the Clioupcake. He was the same Captain Parker, my brother, whom F saw at Xassan. I saw tliis same commission in his own hand in IFalifax. IFow it i^ot into your hands I don't know. Ooss-examined by AFr. Tuck: F read part of the paper, liead enouo;h of it to know that that is the same paper. Don't know uhy my brotlier changed his name. Don't know that my brother sailed out ot Boston. Know tiiat he sailed out of Xew York, and out of Cape Cod. Don't know how long since he sailed out. Xever saw the C/usa/)('<(/>e. I went down from llalitax to Sambro ; half an hour before I arrived she bad left. X^ever I'hanged my name. Stayed two hours at Sand)ro. Mv brother remained till F went to Halifax, (rot a carria_i!;e and brouiriit my brother there: then went home, sixty miles east of Flalifax. Don't know where my brother now is. Don t know anythinji^ about Ib'aine or Tarr. Have not heard of l^arker since leavinu' Halifax. Got none of the car<»;o at Sambro, nor did any of my family. Did not see any ot the cargo belonging to the Che-^api'dkc. .\Fy brother did not tell me of selling parts of the cargo all along the shore. Re-examined l)y Mr. Cray : \Fy brother is a X'ova Scotian by birth, lie told me \\vr family was at Fayetteville. Some questions put by the learned counsel as to the conversation lie had with his brother were objected to. The Queen's proclamation of the 13th AFay, 1861, as to the observance of neutrality pending the hostilities between the United States and the Confederate States of America, was put in evidence l)y Mr. (Jra\. February 10th, 1864. •FoImi Driscoll, being acquainted with Captain Parker's 248 VrCK-ADMIRALTV RETOUTS I'^fi't liiuul writing;, jn-ovos tlie sii»;natur commission to Collins (8). CnKSApKVKK W. C. Wiitson produced the reu^ister of the K^od' JInl, , a Confederate vessel, reifistered in Charleston, South Carolina, and l)v comparison jjroves the hand writiniij of " W. K. Cok'ock," Collector of Cliarleston, to the endorsement on tile letters of mar(|ue (7). The evidence tor the defence here closed. Fehrnarv loth, I8ti4. Mr. Cray moved for the dischari;-e of the prisoners, on a variety of grounds ; hut as they apjtear in the argument he- fore His Honor Mr. Justice Ritchie, together with the autho- rities cited in sujiport of them, they are omitted, except the following authorities which were not cited hv the connsrl hefore the Judge : The Dos lfirmmms{\); The Amlahfr Imhdhi (^l); Brwm v. U. S. (n); The HIiuratha (4); U. S. v. K(;>,for/,- (')) ; C\ S. V. Smith (V)); The Mavkwmi. Flora {1)\ The A/)uUon{^); Tin Dlrina l^dstora (0); L' Iiivhieible {\\)) ; The Sacdiinnh, crew- tried in riiiladel[>hia, in 18G1 ; The SalatUn, before the court in Halifax, in 1848. After hearing Mr. Gray and Mr. Weldon, in sui)[)ort of these ohjections, and Mr. Wetmore, on the other side, tlie Police Magistrate adjourned to (()) See ante, p. 222. (7) See ante, p. 241. (8) Commission to David Collins. To David Collins. Reposing confidence in yoin* zeal and ability, I do liereby authori/e and i'ommission yon to hold and assiinio the rank of 2nd Lieutenant, and tl.Is shall be your authority for any act, under orders from nie, against the go^ erii- ment of the United States, against the citizens of the United States, or agiiin-^t the property of either, by sea or by land, during the continuance of hostili- ties now existing. This coniniission to bear date from the 1st day of Decem- ber, A. D., 1SG3. (Signed) John Parkkk. (1) 2 Whcaton 76. (2) 6 Wheaton 1. (3) 8 Cranch 132. (4) Appen. to Wheaton, Int. ^ (Lawrence), Ki, 24. (5) 5 Wheaton 152. aw (6) id. 154. (7) 11 Wheaton 1. (8) 9 Wlieaton 3(J2. (9) 4 Wheaton 52. (10) 1 Wheaton 238. OF yvAv r.iu'xswicK. 24!) Fobruary i>4tli, ISlU. AVlicn TTis AN^orsliip ii-avo the tbllowiiiii; judi^iiK-nt : Wtvv rt'capitulatiiii;' the i-vidfiUH' Ik* jiroeeeded as follows : ill u'ivint!; iudiiiiK'iil in t\:^ i-asc, I >liall tii-st loiisidor the cttcM't ot'tho (.!vi(U'ii('t.' given on bclialt of the proseeutioii, and wjiiit it discloses : 1st. Itdiseloses the fact tiiat the prisoners and a nunil)er of persons met to<;et)ier in Fiower Cove, in the City of Saint dohn, withont authority from this or any other i^^ovei'nment, and came to the conelusion to }>roceed to Xew ^'()rk and take a steamer, the desii^n lieinii' that they \vei"e t(» take passage on board of the steamer and eaj>tnre her on her voyage — the work, I say, of a coward and a villain, wliich onght to be considered as against all law — human or divine. This was aeeomjtlished, and the vessel sei/ed, as ii]i|iears by the evidence. Xow, upon examination of the law between a master mariner and his passengers, it will be found that tlu' grave r(.'S[)onsibility of the person to whose skill and conduct lite and property are entrusted on the ocean, and the situations of nid'orseen emergency in which he nuiy be comjtelled to exert himself tor the i)assengers" }»rt'servation, render it ni'cessarv that he should be invested with large, and, for the time at least, unfettered authority. Obedience to this au- thority, in all iiuitters within its scope, is a duty whiidi should III' cheerfullv discharged l>v everv passenger on board the sliii). Whatever is neeessarv for the seeuritv of the vessel, the disci[)line of the crew, the safety of all on board, the master may require not oidy of the ship's company, who have expressly contracted to obey him, l)ut of those also whom he has engaged to carry to their destination, on the implied condition of their submission to his rule. Therefore a jiassengcr who is found on l)oard in time of danger, is hound, at the master's call, to do works of necessity in de- fence of the shii) if attacked, and for the preservation of the lives of all on beard. Xow I shall consider the effect of the evidence, and what it discloses, produced on behalf of the prisoners, touching the sei/,ure of the Chesapeoke. Chi. l.H(i4 TlIK :s\I'KAKK 250 VTCE-ADMIKALTV KEPORTS I8f''4 1st. It ai>i>c'iirontederate State>. Xow what was his ]»(»sition and what authoritv had he from the Confederate States to an- thorize him to commission persons in Xew Brunswick to commit this act? Does the talk .;t the meetintifs at Lower Cove about the C^outederate service and officers of the Coii- fi'derate service, and. the |iresentinu; the letters of mar(|iU', irivc' Parkei', alias Locke, any powci-':' I aii[)reheu(l not. From the fact that X'ernon (J. Locke havini:; possessed him- self of the letters of maripie at Nassau, a British port, con- stituting!; the vessel Rcfrihufhui a private, not a )»ublic, arnud vessel, in the Confederate service, whereof Thonjas 15. rower was commander, and there api)earin<>; on the back thereof an endorsement transferring the command of the Rvlrihuiluii to John I'arker, and he, Locke, having assumed the uanic of John I'arker, and tiiere being no authority shown tor nuiking this transfer or that Locke was the person to whom it was in fact made, does not, 1 apprehend, give Jjockc the power on behalf of the Confederate States, to plan in tlic Province of Xew T^runswick the expedition, and creatt' at will, officers for the Confederate service during the pendency of the war. Xow this bring.s me to the questions which I have to dij- cide. 1st. There are the proceeding.s had before l[is Ivxcel- lency, and his warrant in this matter. I decide that tlie Jurisdiction given to His Excellency under the Imperial Act is not a subject nuxtter for me to enipiire into. 2nd. As to my own jurisdiction. T hold that under the lOth section of the treaty, and the Imperial Act, I have jniis- diction in cases of piracy, and tliat this jurisdiction extends to piracy committed on board of American vessels on the liigh seas, as well as for jiiraey committed against the muni- cipal law: The authf ly the la States, coiistriu't coiiimitte considere I'nited S \'attel its just i»i derstand enjoys, high seas The ot \n\\v end( petrated i-liarged, Taking tl /'('//,r it M iiway (inh rohbery o this is at Federal j ri'jflitfuUy it now ("ollins, { Seely, thi conunon to re mail iiuthoritit leney. Tiie Pc nieiit (5) eonnnittc 1 'Illation Uitehie, ] under 1^ OF NEW JUirXSWICK. 251 iMji 111 laws of the riiited States. I have oarcfullv cxaniiiuMl I8«i4 tlic authorities cited upon this latter point, namely : Piracy thk by the law of nations, and piracy hy municipal law ot" theC'HKSAi'EAKE State? 1 iind it stated in a note in " Wheaton " that in the construction of the IJritish Treaty of Kxtradition, a i-rinie coniinitted at sea on hoard of an American vessel has heen ronsidered tlie same as if committed in the territory ot the I'nited States. Vattel says that the domain of a nation extends to all its jurtt possessions, and hy its possession, we are not to un- derstand its territories only, hut all the rit^hts (droits) it enjoys. He also considers the vessels of a nation on the lii!;:li seas a portion of its territories. The other points raised I have eareftdly considered, and have endeavored to search out a Justification for the act j)er- ln'trated hy the j»risoners at the har and the other ])ersons (harii^ed, and I must confess F can find no justification. Takins? the whole circumstances of the capture of the CAc^y/- I'liiLi' it was not jiox belli, hut she was seized and carried away anutxi fin-fiiit/i. It was not a helliijerent capture hut a ri)l)hery on the hiifh sea^. Therefore I consider — 1st. That this is an act of piricy: 2nd. That it is justiciahle hy the Federal judicary and therefore, 8rd. I consider this to he riditfully a ease of extradition. It now oidy remains for me to declare to you David Collins, and to vou James A[cKinnev, and to vou Linus Seely, that I shall commit you on the charge of piracy to the loiiuiiun <;aol of the City and Countv of Saint John, there to remain until you are handed over to the United States authorities, pursuant to the re(piisition made to His Hxcel- leiiey. Tlie Police Magistrate having issued a warrant of commit- iiieiit (5) in accordance with his decision, the }»risoners were '•nuuuitted to the gaol ot the City ot Saint John, and an ap- plitation heing at once made to His Honor, Mr. Justice Uitehie, he issued an order in tlie nature of a haheas cori)Us under 19th Vie. C-hap. 42, returnahle hefore him at the (5) See ante, p. 215. 252 VrCE-AD.NHRALTV UKroKTS 1*<''>4 JiKltfo's (niiunht'i's, ill till' Law Sociotv's rooms, in Saint TiiK 'lolm, oil tlu' !2()th February. Chesapkakk ' Kt'l.ruary 'H\t\\, lStl4. Jjunc's A. Ilardiiiir, F\s(i., Hiu:li Slii-rilK of llie C'itv ami (/ouiitv of Saint John, attt'iided before .liidiije Ivitciiic. ami made his return t(^ the orck-r of the .Iiidn'e (!•). The order and return haviiij;;- l>eeii tih'd and read, Graij, Q. C, apjtlied on the jiart of the prisoners, for an order to the Police Mai'-istrate to i)rodiU'e tlie evidence ami proceediiiifs, taken l)efore him on which the warrant tiu' the commitment of tlie prisoners was issueiK lie referred (!•) RKXrUN OI" TIIK SlIKKIFK TO THE OkDKH OK H.VHKAS CoilIMS. SuPKKMK Court. I, JanicH A. Harding, Sheriff of the City and County of Saint John, liavin;,' charge of tlie gaol of the said City and County, do hereby certify that Duvid Collins, James McKinncyand Linns Secly, named in the annexed order, wire in the gaol of the City and County of Saint John, for safe keeping, unikr ;i warrant from II. T. (iilhert, Ks(i., Police Magistrate and Justice of the l'e;it'f, from the following dates : James MeKinney, from the 2GlIi day of Deieinlur last, David Collins from the 27th day of December last, and Linus Secly fmni the 1st day of January last i)a'*t, except when ordered for examination by the said H. T. Gilbert, Police Magistrate and Justice of the Peace, up to 1 1 o'clock or thereabouts, on the morning of the 24th day of February, inst., when they were taken to the oHice of the said H. T. (iilbert, Police Magistrate and .Jiistict' of the Peace. That they were conunitted to the gaol of the said city and county, at mid-day of the 2.">th day of February, inst., with the following, ii OQpy of the commitment: City and County of Saint John, to wit : To any Constable, or Peace Otliivr, of the City and County of Saint John, and to the keeper of the gaol therei)f : you, the said constable, shall convey David Collins, of the City of Snint .John. laborer; James MeKinney, of the same place, laborer, and Linus Seely, of the same place, laborer, charged before me, Humphrey T. Gilbert, Esq., Police Magistrate for the City of Saint Joljn, and one of Her Majesty's Justices of the Peace for the City and County of Saint John, acting under warrant under the hand and seal of His Excellency the Honorable Arthur Hamilton (iordon^ C. M. G., Lieutenant Governor and Commander-in-Chief of the Province of New Brunswick, bearing date the twenty-fourth day of December, in the yeiir of our Lord one thousand eight hundred and sixty-three, and made and issued in pursuance of the Act of Imperial Parliament, intituled "An Act for giving etteet to a treaty between Her Majesty and the United States of America, for the apprehension of certain offenders," and in pursuance of and in accordance with the said treaty and Act, a requisition having been made to His Excellency the Honorable Arthur Hamilton Gordon, C. M. G., Lieutenant Governor and Com iiiander- in-Chief of the Province of New Brunswick, on behalf of the OF XKW BUrXSvVICK. 253 to Act «I, W. 4, c. •■{»!, ''tor iikm-o t'tii-ctiiallv svcuriiiif the J^"*-* lilitTty of tlu- stiltji'ct l)_v c'litorciiii^ tlu' cxtM-ntioii of writs of 'j'iik /i(///(v/,v <-r;//>//,s ,•"' iiiulor wliicli the .IiidsiV before whom tlK't'nj;.sAi'KAKE ivtiini was niude, was authori/.ed to exaniiiie into the truth of the facts set forth in the return, even wiu-n that was siifHcient, and the Act 19 V., c 4'J, " for hetter seeurini; the liliertv of tlie suhiect" uikKm' which the onk'r in this ease had l)een issued, which i^ave tlie .ludii'e enhirtced powers, iiiactiui^ (s. :}) tliat "upon return to sucii or(U'r, the dudi^e may proceed to examine into and (leci(U' upon the leijality of the imprisonment, and make such order, re(piire such Slid I'nitetl States tif Aiiii-rica, l)y James Q. Howard, Consul of the said United States, at the City of Saint John, in the Province of New HnuiHwiek, stating tliiit Jolin C. Braine, H. C. Brooiis, David Collins, Joiin Parker Locke, Kobert Clilibrd, Linus Seely, George Kol)inson, Uilhrett Cox, Robert Cox, IL A. Parr Mild .James McKinney, charged upon the oatii of Isaai; W'illett and Daniel lltiiderson, with having committed the erimefi of piracy and murder on the liiu'li seas, within the jurisdiction of the said United States of America, on the MVtnth day of iX-cember, inst., are, or some of tiiem are, now in llie City of Siiiiit Joiin, within this Province, and recpiesting that the said JohnC. Hrnine, H.C. lirooks, David Collins, John Parker Locke, Kobert Clifiord, Linus Seely, George Robinson, Gilbrett Cox, Robert Cox, H. A. Parr and James McKinney, iiiiiy be delivered up to Justice according to the provisions of the said treaty; such warrant directed to all and every the Justices of the Peace and Officers of Justice within the Province of New Brunswick, and is as follows — [here His Kxcellency's warrant is inserteil]. (See ante, p. 2n.) And wiiere.is, on the receipt of the said warrant by me, and acting under iiiul liy virtue thereof and in ixirsuance of the said Act of Parliament, I did cxitinine Isaac Willett under oath touching the truth of the said charges set forth in tiie said warrant, and upon the evidence of the said Isaac Willett, in pursuance of tlie said Act of Parliament, I did on the 2oth dav of I)eceml)€r _ last, issue my warrant, luider my hand and seal, for the apprehension of the said persons upon tiie charges aforesaid, in the words following — [here is in- siTtcd warrant of apprehension]. (See ante, p. 215.) And David Collins, James McKinney and Liims Seely, three of the persons in the said warrant, having been found within my jurisdiction, and having been arrested and brought before me, under and by virtue of the said warrant, and I iiaving proceeded to tlie investigation of tiie charge of piracy charged afjainst the said named persons so brought before me, and upon the examina- tion of the witnesses under oath touching the o(H?nce of piracy charged against tiie parties so brought before me, and upon the evidence before me under oath, 1 tlo iiereby, imder the Act of the Imperial Parliament, command yon, the said Constable or Peace Ofticers, to convey the said David Collins, James MiKiiiney and Linus Seely, to the connnon goal of the City and Comity of iSaint John, and deliver each of them to the keeper thereof, upon the charge i>54 1804 — ^— ' TlIK iJlIKSAl'K VICK-ADMIUALTV KKI'OWTS \oriH<'ati(»ii, ami direct such notice's cm- further ri'tiinis in i'cs|»t!ct thereof as lie may deem necessary oi' proper for tin- AKE purposes of justice, an\ the said vessel bein^ a vessel belonging to the United Stales r)f America, ami registered in the rnited States accordinj^ to the laws of such States, and !"■- lonninj; to one Henry \\. Cromwell, a citizen of the I'nitcd States of Aiiierir:!, and l)einf{ of the value of sixty thousand dollars of lawful money of New Hrini>- wick, and having on hoard a cargo of the value of eighty thousand dollars nl like lawful money, and the said vessel being then (ui a voyage from the \)'<\\. of New York, in thi' I'nited States of America, to the port ot Portland, in tlif said I'nited States of America, and having then and there [liratically, fcldiii- ously, wilfully and maliciously put the said Isaac Wilictt and others, tliccnw of the said vessel, in fear and danger of their lives, on the lugli seas afnrcsaid, and having then and there maliciously, wilfidly, feh)niouslv and piratically taken possession of tiie said vessel and the cargo thereof, and witii havini,' then and there feloniously stolen and taken the said vessel and cargo, iipoii the high seas aforesaid, there to remain until delivered, pursuant to the re(|iii- sition as aforesaid; and you, the said keej)er, shall receive and safely kct|> each of them upon the said charge until delivered pursuant to such rc(|uisiti(iii as aforesaiirt'ni (1). liilrh'ir.,], I have no (h)uht 1 mav make the orih'r, liut (h) not think I oni'ht to resume evervthinu' to ho (•(irrecl. ''''".'/, Q- ^-i stated he wouhl obtain an alHy which it ai»peared that the oti'ence, if any, was committed on the lii^'h seas, and without the juris- •lictio.i of this province und the Tnited States ; tliat no charu-e had been made or proceedini(s commenced ay;ainst any of the prisoners, for [)iraeyor otherwise, in any court of tlu; rnited States; thiit they were aetiny; under due authority from the Confederate States of America, and not pirates, but belliir- crotits, acting- apiinst the ["nited States, />/■ hvlli; that no rcipiisition by the }»roper authorities in the Ignited States had heen made to justify the proceeding taken against the pris- oners; and also stating that the facts set out in the warrant of commitment were not supported by the evidence adduced. (1) 1 Parker, Criin, K. 187. 2r.(; VI('K-AI)MII{AI/rV liKI'OlJTS IHM Wii citiMl ArcliilioM's ('niu'n.al riu»ti«i' l»v Wiiti'i'iimii ( 1 1; TiiK /*<<>/>li V. Mni'/in (2). CiiMAi'iiAKE ]V,h,i»ri\q. C, »or till- |.r(Mi'cnti()ii,()l)'n'cti'(l tliiit this pin- t'C'tidiii^ took placi' iiiKk'f tlu' Iiiipfriul Stiitiiti' jxissimI to irivc I'ttt'ct to till' Aslilmrtoii Tii'iity niul not ti hithms i-ar/m-: int. /iiti'/n)', .1. I am pi'oi'iM'diiii;, not umlcr a Irnhms i-ni'ims, nor tlu! linpfrial Statnti- rct'cnvd to, Itiit untlor an act u'n iiii.'' inc liki! |»o\v('rs u|)on an onliM* irtsiu'd under tin- act as in ii procec'dinLf upon lidhras i-()r/>ii'<. I have no donht tins is a pi'oci'i'dinir wliidi pcculiarlv ciilU lor tlic intiM'position of tlu' liiii'lu'st tribunals of tlu' land. It is the duty of llcr Maji-sty's .lusticcs to sen* that the lihcrtv of lier snlijrcts is prusorvcd. If the court will intcrtcrc in the case of persons ccnnniitted for trial in this country, '/ Jurh'iii'i the court will intertere where the parties ai'e to I if sent abroad, The onlv Kuiflish case I am aware of under the Kxtradition Statutes is one which arose undi-r that ]tassei| to carry out the treaty with Franct', r.r ptnic Jirs.'^ct (:!), where the court held that their [K)wers, Iteiny" statutory. wore to have a strict construction. I cannot doubt I hiivr power to review the }troceedin!jfs before the nni.ijistrate, and if there was no y'i'ound for those proeecdinu;s, or the malri^- trate has fallen into any error, either in form or substance, and 1 shoidd be of o[»in'on the parties are ilh\ually imprisoned, to disi'harijce them. I think 1 should be failinii; in one of the most important ot my duties did I not order not only the warrant, but also,, as an atHdavit has been made before nu' that the evidence did not warrant the conclusion the maj^is- trate arrived at, the depositions and proceedini^s before hiia to be brouii'ht uj); and I consider it my duty, in tiie words of the Act, to " examine into and decide ujton the leijality ot the imi>risonment," and, the return being (]uestioned, "to require su(di verification"' as I may deem necessary; and to enable me so to examine and decide, T think I ouii'ht to "' direct the furtlier returns '' asked for to be made. The depositions being then handed in by Mr. (filbert, and beinu: read, including tlie charge contained in the lieadingot (1) j.p. 220, 2, 3. (2) 1 Parker's Grim. R. 187. (3) (i q. r,. 481. OF N'KW lUil'XSWICK. 257 the «l('|M)sitioiis, (10) tlio ciHt' was tlicti fullv iirijfiiiMl ln't'orc tlu' •■'^''■l li'iinu'fl jiidtr*' oil Siitiinliiy, tip' I'Ttli h'clinmrv, and tlu- lol- l.iuiiii; Mdiiilay, 'I'lU'sday and Wcdin'sdav. iii'; tiik .Irmii;. David Collins, Jiiiiies Mi-Kinin'V iind I/iiiiis Souly Mtiiiid cliarKud hofort* iiu', nuMipliify 'I', (iiiln'it, KH<|uiri', I'oiiiu Mat?iHtratf iit' tlio city of Saint Jnlm, iiikI niic i)f Her Majt'sty's Jiisticos of llii' IV-acc for tlif City and Comity of Siiiit Jojin, acting under a warrant iindfr tlu> hand and st-al of Ilin I'lxct llcncy the Ilonor-ihle Arllinr Hamilton (Jordon, C. M. (»., Licntt-nant (Jovcrnor and I'liiiirnandi;. in-(.'liii'f of llii' I'rovinci- of Now HrmiMwick, hoiirinn date tlio nvi'iity-fourtli day of r)i'(x'inl)i'r, in tiu' yt'ar of our I.ord one tiioiisand I'if^lit Iniadred and Hixty-three, and made and issued in pnrsnance of the Act of tho iiii|K'riid Parliament, entitled "An Act for ^ivinj^ etli'ct to a treaty helweeii III r Majesty and the I'nited States of Aniuricu, for tlu.' apprehension of cer- tain ollenders," such warrant heinj? directeil to all and every the Justices of tlic Peace and Otlicers of .Justice, within the Province of New Hriiiiswiek ; for tiiat they, the said David Collins, James McKinney aiul Limis Seely {U\- Hdlu'r with John C. IJraine, H. C. HrooUs, Uohert Clitlbrd, (ieorge Kohinson, liilhretl Cox, Robert Cox and II. A. Parr, not hroiiKht up before me for ex- amiiiiition), did ou the seventh day of Deceinl)er, in the y<'ar of our Lord one tliiiUsMiid eiylit hundred and sixty-three, upon the hij,'h seas, about tweuiy miles north northeaxt of Cape ( )d, in the said United States of America, and witliin the jurisdiction of the said I'nited States of America, and the Circuit Coiirls thereof, then being passen^'crs in anil ou board a certain passenger and freight steamer called the Chenaiwiike, United States of America register, ownetl, lielongiug and appertaining to Henry H. Cromwell, a subject of the said I'nited States of America, whereof Isaac Willett, also a subject thereof, was master, wiiile on a voyage from New York to Portland, in the said United States of America, with force and arms, turned pirates, and the said steam vessel and the ap|iarel and tackle thereof, of the value of sixty thousand dollars of lawful inoiiey of the said United States of America, and of the Province of New P.ninswick, and a cargo owned by persons unknown, of the value of eighty tiioiisand dollars of like lawful money, then and there being in the said steam vessel, under the care and custody and in the possession of the said Isaac \\ illet as master of the said steam vessel, then and there, upon the high seas at'iircsiiid, within the imisdictiou .ifores.iid, about the distance of twenty miles iioitii northeast of Cajie Cod aforesaid, with force aiul arms, from the care, custody and possession of the said Isaac Willett, and against the will of the said Isaac Willett and the crew and mariners assisting the said Isaac Willett in tile navigation of the said steam vessel, piratically and feloniously did steal, take and run away witii, they, the said David Collins, James McKinney and Linus Seeiy, being passengers on board of the said steam vessel, anil in and • Ml hoard the same, on the high seas aforesaid, against the laws of the I'nited States of America and the Statutes of the United Kingdom of Great Britain and Ireland. R ClII'^Al'KAKK I,; "if* n m Ms 'iMiWM .*^p5-- 258 VTCE-ADMIKALTV KEPORTS 180)4 The proceedings have taken phiee under tlie hnpciia Th^ Aet, 6 it 7, Vie. c. 76 (1), passed to give eftcet to the Asli- Chesapkaf:e hurton Treaty. The treaty is entitlod " A treaty to settle and define the l)onndaries, etc., and for the giving np of criiniiiiil fugitives from jn.^tiee in certain cases," and the 10th Artiilr provides for the extradition of persons charged with tlic commission of the crimes specified, within the jm'isdiction of either country, and seeking an asyhim, or heing fouiul witliin tlie territories of the other. Hut the treaty could give no jwwer in itself to any officer, in this province to act in such cases. Their powers must come from the statute, and from it alone. And since a man who lias committed no crime in tlie country where he is, is entitled to his freedom, and a man V, lio has committed a crime against the laws of that country, is entitled to he tried hy its courts; a statute such as this. heiiig in derogation of these common law rights, must hi' coui^trued strictly. Ex purte Bessn'f (2). The statute j)rovides (s. 1) tliat if re pusition shall he made " h>i the an. i}ioriUj of the said United States,*' for the delivery of any person ^^ rhavf/ed'' with an offence committed "within tlio Jurisdiction of the United States," and found within the ter- ritories of Tier Majesty ; the Lieutenant Governor shall signify that swh requisition lias heen so niade, and require "all Justices of the Peace and ^ther ^faz/istrntes, and officers nf Justice wit/in their sereraf jurisdiction.^,'' to aid in apprehend- ing the persons so accused: and that thereupon "any Justici' {>f the l*eace or other person having power to comrni*^ tor trial, persons accused of crimes against the laws of that jiart of Her Majesty's Doniinionsin which such supposed offender may be found;" may examine into the charge and ('on>niit the accused [)erson to gaol until delivered up, pursuant to the requisition. Under the provision of this statute, a warrant of coniniif- ment should show upon its face. (1) That a requisition had been made by the auth()rity nl the United States. i (1) 2R. S. N. B. 429. (2) 6 Q. B. 481. OF XEV: BUrXSWlCK. 259 (2) That the ottenee was coinniitto-1 *'.()n of tho Tiiited States, and tl;at must l)e their exehisive xhk or territorial jurisdiction. Ciiksapeaks (8) Tliat the eoniniitiinjjj iiuiiristrate had jurisdic-tion over the e]uiri;e. (4) That the evidence taken hetbre the nirir'^trate, was such as aocordinj; to the laws of this jcovince, ^rould justify the apprehension and connnittal of the ]»ersons accused if the crime had heen committed in this province, and upon such tindins? the warrant should order the committal. Hut the warrant of commitment in this case is defective ill the foUowiiiii; particulars : (1) It does not state that tiie e^ idcnce before the magis- trate was such as would have heen sutiicient to justity an appreliension and committal for trial in this province, and thereupon order the committal. (2) It does not allege tiie oftjuce ehaiged was comiuitted ill the Tnited States, or within its jurisdiction. Ii sim[»ly alleges that Cape Cod is in the I'nited States. (8) It shews the offence to have beeti committed on the high seas, twenty miles ofl' Ca]»e Cod, and beyond the ter- ritorial jurisdiction of the United States, and directs the prisoners to be detained " until delivered up pursuant to the requisition," etc. Whereas, for an otfeice committed on the liigii seas, per nc the prisoners are justiciable in the courts here, and cannot be delivered up or discharged otherwise than by due course of law here. (4) It shews on its face that the nuigistrate who committt'd was acting '.inn)ly as ii -lustice of the Peace, and not as a commissioner or otKcer under the [mperial Statutes for the trial of crimes and ottences committed on the high seas, and the commission for that purpose in force in this province, and therefore it shews that the case was without his jurisdiction, and does not come within the Imperial Act to give ett'ect to the treatv. (•")) It does not allege or shew that any c-omplaint or pro- <'ceding had been taken or was pending in the foreign state 260 VICE-ADMIRALTY REPORTS 1804 or that the foreign state liad made any a}»plication for tln' The rendition of the prisoners nndor the treaty, or that the aji- Chesapkake plication was made hy tlie (tnfhoriUj of the United States. (6) It shouhl not only show that the oiieiiee charged was committed within the Juri diction ot the United States, hut should go further and negative any co-ordinate jurisdiction, which co-ordinate Jurisdiction must he inferred from the allegation of the [>iracy heing committed on the high seas. And two minor ohjections are : (7) There is no allegatior. that the evidence was taken in the presence or hearing of the prisoners. (H) There is no alk'gation that the [)lace where the evidence was taken was within the City and County of Saint John. The warrant does not set forth the grounds of the coin- mitment. A mere averment that it was issued "upon due proof as hy the statute re([uired" is insufhcient. JSash's <-asc {\). And so ot the averment in the [»resent case ''ujion the evidence hefore me taken on oath." And the form of warrant given /// re 7v'ireake l)c interred from the C/>es"j>C((<\r being a United States vessel. The jurisdiction of every nation extends "to the punishment of piracy and other offences against the law of nations, by whomsoever and ir/icrcsorrcr committed." Lawrence's (W'heaton's) Int. law (I). A pirate is of ri/> country and liable to be tried wherever he may i)e found, ;»nd wherever lie may be arrested that country takes jurisdiction of his crime. LL ^S. v. Palmer (2); Iti ir JuiIhc (8). The warrant should show on its face that the magistrate had jurisdiction. Kiff dud Tjant^s rasc^A); in re Pa rios (^o). Ordinary Justices of the ]*eace have no jurisdiction over jiiracy. The Imperial Act refers to this when it says it shall be lawful for the Lieutenant (Jovernor to require *'all Justices of the Peace and ot/n'r Mafiistratrs ami Otfir-ers of Justice u'iihiii their sereral jurisdielinns"' to aid in appre- hending persons charged; and further, that it shall lie lawful "for any Justice of the Pea<'e »>;• other persons having jiower to commit for trial,'' to examine into the truth of the charge alleged. The only authority in this province to try i'liarges of piracy is under the Im[)erial Statutes 2S, Hen. S, c. L') and 11 and 12, W. 3, c. 7, and under those statutes a commission has been issued and is in force. And tlie com- mission only extends to the persons named in it, and not to all magistrates within the province. Special statutes have given justices power to act in Kngland, 7 15ac. Abr., p. 44y the terms of their appointment in this province their jurisdiction is confined to the county for which they are appointed. The governor's warrant could give no jurisdiction. The Canadian statute specially authorizes Justices of the Peace to act in such cases, (1) 2nd ed. p. 231. (2) 3 Wlieiiton 610. (3) 14 Howard 107. (4) 1 n.&C. 10!. (.-)) 1 q. B. 143. 262 VICE-ADMIRALTY REPORTS 1804 but the IiiH)«M'ial Statute does iiot,l)Ut limits the action of the The respective otiicers 'within their several jurisdictions." Chepai'eake The Lieutenant Governor is bound to pursue the terms of the act and until a proper requisition is made he caimot issue a legal warrant. But the requisitions of the rnited States (Jonsul iu the present case as shown in the recital in the warrant of commitment are not sufficient. Thev do not even assert the application to be made " by the authority '" but only "on l)ehalf"' of the United States, terms entirely ditferent since an application may be made on l)ehalf of another without his knowledge, and such an application would tix him with no liability. Ft Tuay be adopted or re- pudiated as the party ])rincipal chooses. Nor does it appear that the right to make su(;h requisitions is vested in the American C'onsul rhintr offirii — nor is any direct authority or instructions to him, or any subseijuent ratification of his actions shown — noi if shown, could it cure the defect. The warrant states the parties were brought up "to answer the complaint of Isaac Willett of the State of Xew York," and not a complaint made by authority of the United States. That complaint of Willett's was made in this pro- vince, and not in the I'nited States. It was made before ii magistrate who had no jurisdiction in cases of piracy. It he had power to take such a complaint where was the use of the Lieutenant (xovernor's warrant at all. The whole pro- ceedings were i-ormn non Judice. The requisition should be made by the executive author- ity. Opinions of the U. S. Attorney General cited in Wheaton's Int. Law(l); itt re Ktiliic (2); and the terms of the Canadian Statute are to the same etlect. The United States Consul's re(|uisitions refer to no such authority. It is consistent with their terms that he merely applied to have the parties tried here. Xor does it a[q»ear that the parties had been lei<;allv " charriso i: rounds First. is t''.eref( and the tion Tre (I) Tl and |»riv as respe( and mm nations > lias excl (•2) N. ly the h courts o (:5) Tl <;reat W oases wl jiirisdict where i\ crime c( nuuided (1) pp. 241-2 n. (2) 14 Howard 107 il) OP NEW BRUNSWICK. •263 tions upon which the original warnitit was granted,"' show- is^>'* irig tliat their existence is necessary. And in re Kalne (1) and xhk Mdzf/cr'fi m.ve (2) are to the same effect. Here even if theCiTEs.vPEAKK prisoners were taken to the honnchirv line, for all that a[i- KL-ars on the warrant of comniittnent, there v.ould he no one authorized on tlie part of the Tnited States to re^ tlic parties to be handed over to another jurisdiction and dc}>rived of rights tliey would here enjoy, and the warrant sliould therefore he construed with the utmost strictness. But leaving the questions as to the validity of the war- rant, and taking u[> the facts wliicli appeared in evidence, the prisoners are entitled to their discharge on the following irrounds : First. The offence charged is piracy on the high seas. It is t''.eref()re cognizable 1)V the proi)er tribunals of the country, and the parties r()mmitte; and taking the Cluyfipiaki', in so doing were not acting as pirates odd luiinu) irac'V nsod in tlio treaty must bo ruirardod l'**'-* y the nuini-CnEs.\i'K.\Kv, cipal law ot" a ]>articular countrv. Thus the law of nations ritain haviiiii: reco*;- ni/.cd the Confederate States asbelligerents, they cannot come within the former. ((j) Officers and men havins^ no permanent connection with the countrv, or interest in its cause, are and may be privateers, and cannot be treated as pirates, and fraud may bo employed as well as force. (7) The courts of a neutral s^overnment which rccoi::nizes the existence of a civil war in another countrv, cannot con- siiler as criminal those acts of hostility which war authorizes, and which the new ii-overnment mav direct ai^ainst its enemies. Third. The court of a Justice of the Peace has no juris diction in eases like the i)reseiit, and a Justice of the Peace as such, has no power either to investiijcafe or commit : (1) A Justice of the I'eace has no jurisdiction or author- ity to issue a warrant or hold an investigation, and the (Governor can give no such authority. [-) The warrant issued in this province, must be based ujion preliminary proceedings, had before a com[ietent trib- unal in the Vnited States, having jurisdiction of the offence, and showing that the criminal acts cliargod were committed within the territorial jurisdiction of the Tnit'd States, which in'ocvedings must lie forwarded to the Governor of this pro- vince, before the (iovernor can issue his warrant, in order f 266 18«4 VICK-ADMIUArTV RKPOHTS to i^ivc any tribunal or authority in this province, juris(li( Thk ti<>'> t<^ en(iuir(' into the ottenee. Chi>xapkakr (3) On the tUceofthe warrant to apprehend the ])ris()iu>rs, it disehjses no re(iui.sitioii made hy the pn^ter autliorities of the United States, hy its authority, as recpiired hy the treaty, and is therefore invali(h (4) It (h)es not show that in the United States any com- plaint has l>een Iodised, or proceeding taken a^i^ainst the jiarties charuied, on which the proceeding.-- in this provinto can l)c based, and is therefore on tliat (f>) Tl iccount invalid, le warrant to apprehend the prisoners, is defectiv( in combining; two crimes which are trial)le })etore separate and disti'.ct tiibututls. (H) The authority to a ma.,i(istrate to act, is jiniited to such crimes as could Ije committed in that part of the kini^nlom in which the mai^istrate resided : aiul a/ the lii<>:h seas aic not a part of Ilei- \lai(..-iy's dominions, a .lusticc of the Peace, in the absence ol' any specific h'sj!;islation thereupon, has I J juris(hction or [lower to act in any matter relafini^to ]>iracv; the examination and warrant in sucli cases niiisr be before one (if the ofhcers composing the mixed ctjurt t't>v the trial of i>iracy and otfences on the high seas, constituted by the rmi)erial Act. Foiirili. This expedition, starting in a neutral territory, however trross a violation of that neutialitv, does not etter, being an Fuitt 1 States shi[ , hcv deck shcnid for all pur[K)ses be considered a portion of :he United Stat 's territory. Th , i'>>lice ^[agistr ite in j»artbaseal law. Wlieaton's Int. Law (')). It lOiild never luive been intended to deprivt' either of the lontractini? ]iarties of a jurisdiction it already possessed ; the I'ciison of the treaty and statute is plainly that escapiiiic l>ris- 'iiu'rs, not punishahle by the laws of one country, should be ik'livcred up to the other; and if this crime can be |»unished liiTc. that reason is at an end. If the word piracy in the sratute is to iiave a nf(/nmir>/ ('2). Tlu' tri'aty did not contemplate civil war. In the i»rcs(iit case, the parties claimed to ca|»tnrc vi'ssels tor the Cont'cdc rate States. Thev had the color of a commission. Il hoii'i Jii/r commission it was snlHcient to protect them. A helliicei'ent imiy enlist men in a neutral country: tlioii;:!: amenahli' to its munici|ial laws lor doiniz; so. The oH'cih c is otdv coijni/alile hv the neutral stati An otiicer mav as hv Ins comnnssion. Inv shown hy his acts as wel Parker was ii-coi^nized in the British harhor of Nassau. a» havinii" a letter of mar(|Ue. A person havini^ a letter nf mar(|ue imi»lies his havin*; men, and he has a riirht to mimI his otHcers and men out to act on separate expediti(Mis. Tliv evidence shows a hutia Jidc enlistment in the (-ontedciatc service. A [jcrson may ohtain the riijhts of a citizen of a t'orei_ij:n country without naturalization. Jlarn/af v. W't^'m (8); The Sfiiifis.'^iiH'i Trlniilad (4). in this case Captain Parker had been for twentv years a resident in the South- ern States. Any private citizen of a helliu'crent, has a I'iulit to destroy the enemy's projterty wherever found. A coin- mission from the l)ellii::erent government is unneccssarv. Kent's C\mis. (.')); Wheaton's Int. liaw ((I). The ordy ctKrt of the want of a commission, is that a prize ifoes to the unv- ernment and not to the captor. As hetween hellii>;erents, aii\ man tii>:htin<>' on one side is the enemy of the other, liut the u'enuineness of the commission in the present ease is un- doubted. The riii'lii of Captain Parker to hold it, is ahnu' m/ (1), uiid /// /•( Kaiiiv (-1). Nor can tlu' iiiipliciitioM he I'^M iiiihK' l»y the consul rirhilr njfii-H. In tlic I'liiti'd States the xme lli'rc>> ity tor the i»rior aeticjii of the executive is done away<'Ht»Ai'KAKB ;ith l>v their statute, hut here it is otlierwise. Aixl the Coiisiirs aindicatioii was oiilv supported hy u depo- sitinii not clearly charKiiii; piracy and sworn hel'ore a ina^yis- tratc who in a case of [tirac^y had no authority to take depositions at all. The proceediiii^s must he construed sfi VC- //■»///// ////v>, and till' warrant, etc., cannot ho correi-ted hy the je»'ts are emjiloyed. The eyidence shows clearly an eidistment. Iloweyer t'ross ;iii iidVaetion of neutrality, that (Mdistnjont is only punishahlo liyourown laws. Thornited States cannot complain. Had I'urker hooii at Xassau without authority ho would hayo boon taken and punished. His commission was duly transferred tniin Power, the l{itrilii(ti(n)''s first captain. The witness (Colcook's) sii^naturo being official must be presumed cor- rect. The eommission was shown by i'arker as his authority, and the men eidisted under him in the seryico of the Con- federate States, for the purpose of waging war against the I'liited States. [Rilcliir, J. Assuming as you must do at this stage of your argument, the correctness of the proceedings against the prisoners, and the magistrate's Jurisdiction of the otienco; do not these ([uestions tall within tin' proyincoof the Suj)erior Court on the trial of the prisonci-? Is it not tlie magistrate's duty now merely to see if a preliminary case is made out? I tliiiik we must act in this case just as if it was an offence •■'Hiiinitted here. T]w ([uostion is, would I on tho eyidence limit for trial in this country. If so, must I not commit em the parties for extradition?] (li tJQ. B. 481. {'■!) 14 How. 107 (3) <) q. B. 481. (4) 11 Ad. cS:E. 373. 270 VI('K-AI)MIKAI/rV UKI'OIJTS TitK tl In AiHlfrson's cast' a pn'tntt j'ni-ir mm- was tiiaiAi'KAKK(l). I'arkiT is touiid in coniniand ot the Ifiirihullnii^ aini Braitu! and Parr acting under liiin. [/fllf/lic, .1. I think tlii'se (|ni'Hti(>ns are |»r(t|ter tor a jurv and not for the nuitfistrate. His duty is simply to deal witli this ease as a magistrate would deal with an otfence td In- tried in this eountry.] The parties were oidy makinu: war on the I'nited State-. They took the vessel on the part ot" the Confederate Statt>. The orifani/ation was under the color of a Contederate ((iin- mission and that was sutHeietit. Rut if all other points fail, the headin<; jilaei'd l»y thr Poliee Maj^istrat*! to the depositions is sutHeient to dischariTf the prisoners. He says the prisoners were chai'^^ed witli havint; committed piracy "within the jurisdiction nf thf Uniti'd States and the C'inMiit Courts thereof, and ai;aiii>t the laws of the Tnited States, and the Statutes of the I'liitcil r uii^dom of (ireat Britain and Ireland." Huthy the riiitoil States Statutes put in evidence, it is clear that those courts liave no jurisdiction until the prisoner is found within tlifir districts, and there is no evidence in this case of any suili iurisdiction attachint; at all. The Tnited States bv tluir Acts of C'on'\ arose out of the evidence and on the argument before tin magistrate. There is nothing in the original warrant aii«l ])roceedings to sup{>ort the investigation of such a chai'u't ; and unless the evidence was taken under those warrants and proceedings, it was not rightly taken at all. Wi'linoir, Q. C, and W. H. Tack, for the prosecution. (1) 3 Wheaton GIO. OK NKW IJUIXSWKK, :i7l out, Iiiir , I'lilnnr 'ion, atnl »r a jiirv Iral wifli ('(' to ln' <1 Stat.'v :t' Statt's. •ato cnlii- I l.y tllr liscliariri' j:('(1 with II nt' tl..' il ajfaiii>t le rnittil u I'liiloil isi' ('(tiirts hill tlii'ir any >nr\\ h\ tlit-'ir t witliiii roiii tlu' lority to iction dl' linst till' am ami wiTt' not Th.-y .4bri' tin. rant aii'l c'liarLif : ants ami itiuii. Ailniittini; tin- first / t\\v I'nited States, it says also that it was iuaersons nniy act in the investiijation of any of the oft'eiures referred to. The magistrate, under the statute, is to examine into the charge, and this, whatever it is, and wherever he may do it, it will he equally valid. It is not necessary that it should he in presence of the party. The statute authorizes the examination into theott'ence, even hetore the warrant for the aj»prehensi The words are merely permissive. They leu:ali/'^ the use of sueh depositions if taken in the demanding eountry — do not render it necessary to take them. The partii's wt iv duly "(•hari::ed" within the terms of the statute by tin; United States Consul's re(|uisition. The word '' ('haru'cil" in the statute does not mean any spoeitie ehari^e or particular form of chartje. Suppose the case of proceedintrs hetbiH' a justice on pu accusation of murder; hut it appeared on investi_<;ation that the crime had been committed beyond his jurisdiction, and in the Tnited States. There the puny would be " charu^ed "" by the depositions before the justirr. And in this view the pa,rties were " chari^ed " by Willctts first (lei)osition. In the form of warrant given in 7i(»W.v <•«.«(' (1), the word used is not " charired," but "accused.'' Tho statute does not confine tlie rendition to fiKjifk'is from the jurisdiction of the demandinui; country. The words ot' the treaty recited in the statute expressly extend to all criminals who "should be found" as well as those who '" sliould seek an asylum" within the territories of the otlur nation. As to this crime having been committed on the high seas and our courts having iurisdiction over it, there can be no doubt that the courts of the rniti'd States have a co-ordinate jurisdiction. Having Jiiade a recpiisition, tlu'U they ''..e I'lititled to have the criminals given up. The I'nitod States vessel was I'nited States territory, and the United States had full jurisdiction over her. Kent's Com. Kd. 18:?2(2): Wheaton Int. Law (8); Rnjhm \. ILcw {\)\ The F/oinn/ IaiihI (;")). The C/i('^"p<(' had an I'nited States register, and carried the Tnited States flag. There is nothing in the statute to limit the word "piriiiy ■ to municipal piracy. If it does not mean i>iracy l>y inter- national law it means nothing at all, and if it inten.ds only (1) r. (^ B. 481. (2) Vol. 1, pp. 184, 0, 7. (3) pp. -208, 9. (4) Timef, Feb. 1, 1864; s. e. 4 li. & S 947. (5) Loniltm Morning Post, Feb. ri,'()4 OF NKW BirrxswicK. 273 what would bo itiraey by the nuinii'i{>al law of the Tinted I'^^i'* States and not here, tor such an oft'ence tiie parties eoidd 'p„K not he i^iven uj* at all. There nnist be a similarity in tiieCaKsvi-KAKE laws of the tw(» countries as to the offence. The ([uestion of the parties holdini^ a valid connnission from the Confederate States would clearly be a matter for coiisidoration at theii' final trial, and not at this preliminary stage of the ^iroceedinijs. Ft is a (piestion foi- a jury. 'I'here was no real j roof of ('olcock's sii^nature to the transfer from I'owcr to i'arker. Xo greater i>articularity can be recpiired in th'.- warrsiiit of (•(•iiimitment in the present case than in any proceeding in tiiir own courts. This is a preliminary proceeding, and no such great pai'ticularity is therefore re(|uire(l. Besides, the liroceedings nniy be amended. The Knglish decisions cited (111 this point by the prisoners" counsel do not apply. The Act under which the order was vranted in this case differs iVom the huhcds rorptts statutes, and enables the judge to "make such oi'der as he may deem necessary." The magis- trate's heading of the evidence is innnaterial. It cainiot iivate anv variance betwcn the Lieutemmt (Jovernor's warrant and the itroceedings taki'U under it, or invalidate the proceedings if otherwise correct. (rfi//, Q. (\, in reply. The alteration in the heading of the evidence is very important. It saps the very foundations • it" justice. If a re(piisition is made and a warrant issued, and the magistrate takes evidence on a diflerent charge, it is ii serious matter. The alteration has a suspicious ajipear- iiiH'c, and was nuide to cover an ol»jection raised at the trial. Ir has a material bi'aring on the case. If the evidence does ii»i ((nresitond with the liii'Utenant (Jovenior's warrant, uliat evidence is theie to .>iiow the parties are giiihy at all. Ill that case the parties ai'c in jail under a commitment not >u|iported i)y the evidence. If there is no evidence, the iiiiiimitment is irregular and illegal. It' there is evidence, it lilies not support the charge, and tln' proce»'dings cannot I'c amended by the evidence. Chri.si'n: v. Umrin (1). m 11 Ad. it El. .S73. >74 VICK-ADMrKALTV WKI'OKTS 1864 As to tlic snfiici(.'Mcy of tin- iV(niisitioti, tlio I'tt'cct of tin- TiiK Jii\iruiiR'nt of tlic coiuisol for the prosecution would ht- that C"iii«.vi'EAKi:a v.-iimmt for the arrest of anv iK-rson, ehiiiiied to ha\t' coiimiitti'd an otfence in the Cnited States, eonhl he issncil without any sworn depositions at all. And the evi(len(c neijativi's the inferiMice drawn from the warrant ••••eitiii^- ii , 1 was issued "in iiursuanee of the treaty, Surel y any jiersoii calling himself an I'nited States Consul cannot, hy mt'rcl\ writing a letter to the Lieutenant (Jovernor, have a warrant issued calling on all nnigistrates to arrest any inindierof llcr Majesty's subjects the consul nniy choose to nann'. And undei' tlu' Imperial Statute the Lieutenant (Joxci- nor's warrant could not authorize the magistrate to take Willelt's sec(»nd (leposition. Ft could only authorize magis- trates to act "within their sever; lunsdiction.- Th [Tinted States can only he entitled to jurisdiction over piracy on the high seas when the i)irates are found within their jurisdiction. If found here wt' ha\i' jurisdiction, and oin- courts must use it. There is nothing to show that this par- ticular case is, in tlu' opiiuon of tin- I'nited States govern- ment or courts, within their jurisdiction. Ifad proceeding- first been taken there it would have been otherwise. There is now no I'nited States otKcer authorized to ivceive the prisoners on their being taken to the boundary. The origi- nal warrant is bad as combining two distinct oHen<'es — murder and pii-acv. The U'arned judgi', having taken time to consider, on tin- lOth March, 18(i4, delivered the followinii' JUD(;MKXT Pavid Com, ins, Ja.mks Mi'KiNNKV, and LlNI s Skki.v, T*risoners confined in the ("om- mon (iaol of the City ami Countv of Saint dohn. RiTCiiiK, d. (1) This was an application nuide to nic on behalf ot the a.bove named jirisoners, umler the .\ct ot Assenddy lit \ ic. cap. 42, entitled " An Act for better securing the liberty of the sub.ject:" and sutHcient can-e (1) Afterv.iinls Sir Williaiu .J. Kittliie, Cliief Justiit- o( tlie Siii.rt- Court of Ciiiiidii.— -El). Illc .i ', *i OF XKW I'.lil'NSWICK. •Ill liiiviiirison. toux'tluT with tlu' day and cause of tiieir having" l»een taken and (U'tained; to wliieli order the Slieritt" of the City and Comity of Saint .lohn, tlie ki'i'per of thi- said jail, rt-tiirned to me that the said parties were contined in the said Jail under a warrant troin lluniphrey T. ( Jill)ert. Toliee Maijistrate and .lustiee of the I'eaee foi- tlu- City and County of Saint -lohn. troiu tlie follow inu" dates : MeKinney from the :2()th day of 1 )e«'«'jn- lier last [)ast : Collins tVom the i*7th of I )eeeml>i'i' : and Seely from tlie 1st day of.Ianuary last past: except when oi'dere(l lor examination hy the said maii'istrafe, up to 11 o'eloek or tlM'real)outs of the morniuii' of the :i-Ith Fehruary, then instant, when they were taken to the otliee ot' tlu- said iiiay'istrate : that tlu- said Collins, M(d\inney and Sei-ly ■vvei'e committed to i!u' said jail at mid-day on the :i.")th dav KS -r Fel • ruar\, then mstant, with a warrant or eonimitment. which tln' said sheritt' si'ts out rcrlxi/im : and this he ri'turns is the cause of the detainiiiu' of the said [>artii's wh(»se hodies lie says he has I'eady. The warrant or commitment set forth is lunler the hand ami >eal of Humphrey 'P. Oilhert, Fsipiire, a .lustice of the I'cace of the City and County of Saint .Folin, and I'olice Mau'istratt' t'oi" the City of Saint .lohn. and date(l lioth Kel.ruary, iStU (.')). ( Ml this ri'tiii'ii ht'inu" niadc to me at the time ajipointed for the lu'arinij!: of this matter, on a|)plication made on hehalt' n|' the said prisonei's on the atHdavit ot" 1 >a\'id Collins, 1 did. ill piirsiiaiice of the |ioW( r and authority in nie vesti'cl l»y the Act of Assemhiy. llMh \'ic., ehap. 4l', reipiire and dii-cct a I'etiirn to he madi' to iiie of all the proceedinu's, examina- tions, orders, and depositi(»ns taken itefore II. T. (iilhert. 1'. M. and .1. 1'., etc., under and hy virtue of a warrant pui'- piutinti' to l)e issiu'd hy His Kxcelleiicy the Lii'Utenant (iov- ciiior. dated the :24th Di'cemher, lS(i;5. tlu' same heinu" ileeiiied I »y iiie necessary and propi-r U)V tlu' purposes ol (•')) Sci- mile, (I. lilo. 27(; V IC K- A ; >M I R A LT Y H K I H) KTS 1864 jurttico t(» ('liable mo to examiiK' into and docidt' u}»oii tin- TiiK leifality of the iiiiprisoiiiiKMit of tin.' said itartics; and I CHEPAi'KAKKdirt'oti'd that noticf of such order should he tortlnvith served on Mr. (Jilhert, who, upon notice thereof, returned to me all .such |»roceediiii;s and ' of Cape Cod, the shootinu" of the eiiii'inei'r. woundinii" of tin mate and sccon. 208. OF yy.w BiU'XswicK. zt I of tlie vortsol, and the sciidiiii; on sliorc in \e\v nninswick l'^*>'t <»t' tlio ('aptiiiit and all the civw except tin* tiist and third thb t'liifinccM's and tliivc tlrcnuMi, wlio wore retained on hoard ; CnK<\i'EAKE and the deponents state that they are intornied and t'nlly i.elieve tliat .1. C. IJraine, H. C'. Brooks, David Co]V\ ns. dol m Tark. •ke, 'il'ii-^ dohn I'arker, Limis Seelv, (Jeori^e Kohinson, (Salhraith Cox, Kohert ("ox, dames N[(d\inney, i;()l)i'rt Clitl'oi-d and II. A. Parr were, anioiii:; otlirrs, thr t('aini'r. l»nt except detailinii' the facts ahove referred to, no eharu'e of piracy or mnrder is made, and no alley-ation whatever of the a<'ts havin<; Ik-cii committed within the jurisdiction of the I'nited Slates (1). The i»i'is()ners l»y their connsel claim that tlu-ir detention is illei::al, and a i^reat variety of ohjections were ui'ii'cd at lenu'th to the pi'oi'cedinu's in this case. They ai'c all. I tliiiik. eovi-red l>y the followin I'olici' ^^ai::;istrate for the City of Saint dohn, or as a diistice of the iV'aee for the City and County ol' Saint dohn, any authority to examine tonchinij: the truth ot" the diaru'e of piracy alieu'i'd in the wai'rant. oi* to commit the pers(»ns accused thereof. lliinllil. Tliat if Ml', (iilhert had jni'isdiction, the evidence hefore iiim showed that the olVi'nce was not piracy, and the (1) See ante, p. 248, for charge, toucliinij wliicli the witnesses were cxani- iiicd bv Mr. (Jilhert. 278 18(14 Tin: VK'K-ADMIKALTV IJKl'OlJTS |)risi)m'rs wwv not trniltv of that ci-iiiR', and <'oiiso«|iK'ntly tliiTc was no cvitli'Mcc ot' tlu' tnitli (tf the cliaru'c, hut to thr CnK.«AiM;AKi:conlrai'V, Foitrf/il//. That if he was not wi-onff in this he wi'( •l_i^t'ully took a fiH'sh coniphiint, and wronijtnllv cxamini'd on charifcs contaiiKMl in that ('oinj)laint, and not on the charge in the ( iovt'i'nor's wan-ant. and that thr wanaiit lu- issued and nnd"i' whi<'h thi' prisoni-rs ari' n<»w dt'taiiitMl is Itad on it^ t'aci'. and not siitficit'iit in law to justily their (U'tention. The (^)ni'en has a ri_i;ht to know why any of her suhjeets. • •r |)ersons in lier (hnnitnons, who ai-e alleu'ed to hi' wroni;-- fnlly iinj»risom'(l an- so restrained of their lil»erty. Tiie writ of hdhms corpus at eonnnon hiw and hy statute, and tlie statute of tlie <>eneral assend)lv umler which 1 am now aetinsr, iii'i' the constitutional means in this jtrovinoe hy which all allei>:ed imiirojier imprisonmenis are iicjuired into, and Her Majesty's Su|»rem(> Court and the judires of that court are liound on proper cause shown to investii^atc all cases ot'allei^i'd unlawful arrest, and to rtdieve tlu'refronr if si lown to hi' contrary to 1; iw, Tl le riii'ht to i^rant such I't'lief in this case has not heen. and cannot he (luestioneij. Ilaviny;, then, all tlu' proceedinAPEAKE latioii a^Pi't'd on ('2). To onahK- this ti'caty to lu' carriiMJ (»iit in thr Ilritisii dominions a statuforv cnactnicn? was nrct-ssaiv. and the jiarlianK'nt of (Jrcat i>i'itain, in the «!th and 7th vcar of IFfi- \hijc'st\ *s r(.'i_<;n, |tass.'d ;'n a«'t for !xivin_<; ctfiH't to tln' treaty, uhit'h, after reeitini; *\\v Kith article of the treaty, and tin- 11th with ri'fcrcnci' to the duration o[' this |ioi-tion of it, alter recitinu" that it is expedient that provision should he made t'oi carryintr the said ai:'i'eenient inti» effect, as follows (:>) : enaeff Th le antlionty wliicli ihis statute li'ives the ofhcci* adniinis- trriuLT the ii'ovci-nnienf of any colony, and all Justices of the lieace and otlu-r maufistrates and officers of justice within tlicir se\'eral jurisdictions, to act, heiui; ii statutory j»ower, thi-y must one and all act strictly in accordance with rhe authority driven, and ri^-idly pursue that authority. Uearinir this in mind, 1 proci'cd to the consideration of the first olijection. We must look closely to the .\ct of Tarliament, tor it is from that, and that alone, the authority to act ju'o- leeds, and tlu' very first words of the euactinir part of the statute show that the hasis of this riicht is on an event: " In ISC requisition sha II at iin\' time he made hv the authoritv "f the rnited States in iMirsuance of and ac'ct>rdini:' to the -aid treaty for the delivery of any iierson charired with icrtain crimes (incliidiiu;- piracy) committed within the jurisdicti(ui of the I'liited States, "" etc. Thus we see the re(|uisition is not to Ik- a simple hald re(|Uest for the delivery up of the perso i name 1, hut it is a rcMpiisition which must t'c hy the autlK.rity of the I'liited States — it must he in pursuance of and in ac<-ordaiicc with the treaty — it must lie for the deli\-ery of a person chaiii'ed with one of the "ffeiices mentioned in the treaty, and the offence with which lie is charired must have heeii committed within the juris- diction of the I'nited States. If a case perfect in all these (2) See iiiilt; p. 200. {'A) See (t>ife. p. 210. 280 V r( ' K- A I ).M TI { A LT V R H I 'OUTS 18 h (W TiiK fo'" ^J'^' iifliiiiiiistrator ol' tlu' ^i-ovcriiiiu'iit of any ('(doiiy np CnKHAi'KAKK possession \)\ a warrant nndor liis hand and seal, to si 'Hen ;it du' same time, hut rlie h'tter siu'Ued .1. (^>. lIov,;<"'5. >' ni:.'t' Stati's Consul, in which the jirisouers aic 1 aiii, S. '■• -^ 1 appear to have heeii tlie first written. It i- a coUi: .miei i" ^n aihhvssed to the Lieutenant (Joveninr throuu'h the i 'r(t ■int'ial Seeretai-y. 'I'he tii-st pai't of tlii- ii'ttt'i' is simply a I'lMpu'st that thi' tjovi'rnor will use hi- anthoi'ity under the act oi' parliament "'to the end tliat certain olft iiders (not mimiuii' tlu'iu or their crime, or tlic ]ilace or jurisdiction within which coiunuttcd) nniy he ap- jirehciidcd and deli\crcd up to justice"" (not statiui;- to M'hom). It then proceeds to di'sire the Secretary to make known to His l"]xeelh'ncy, that as an ollicer of the Initial States ( ioverniuent t]ie writer is authorized hy the executi\i' department of that u'overnment to make a iHMpiisition upMii him as the otHcer adnninstcrinii' tlu' ii'ovei'ument of tiii- jiroviiicc , in order that certain jum'sous (not naminu' tliciin helii'Ved (not charii'ed) to he uuijty ot' till' erinu' ot' piracN (not >tatin_ii- within what Jurisdiction connuitted, and nm statiiii!; whethei' piracy aii'ainst the law of nations oi- pira< \ aijainst the municii)al laws of any particular counti'y) nia\ he l)roUi;-ht hefori' the proper otKcers of Justice, so that tin' evidence ot' tlu'ir ii'uill or innoci-nce nniy he heard and con- sidered ; and then he reipiests that, in accordatice with the provisions of the said act of parliami'ut. His Kxcellency will hy warrant siu-nify that a re(|uisition has l)een made foi" tin- apprehension of John ('. Uraine and others, includiuii' ih>' ]»risoners, ami reipiire that all Justices of the peaci' and otlur mai!;istrates within the Jurisdiction of this pi'ovince shall ai'i in upprelienilini; tlie ahove named persons aci'used (ih'" OF NKW I'.klNSWICIv. 281 cliiii'irt'il) ot' till' criiiic (>r piracv, lor the pui'iiost' not ot' l***'* li;i\iii<; tlu'iii (k'livcivd up, l>Mt for the purposi' of liiiviiii; j^y iliciii liroiiirlit to trial. I'lKlcr tlic statiito \vv liavi- socii tlu'C'iiK-sAi-KAKE rtM|iiisitioii imist hi- niadc "l>_v the authority of tin- I'liiti'd Stattfs," tlia' is of the i!:<>v«'i-iiiiu'iit of \\\v Cnitcd Stati's, Had Mr. IIo>\ard liccii a piddic iiiinistcr nf llic I'liilcd Sfati's, and so the rcpri'siitativi' ot" that Lrovcrnnii-nt. a ri'i|iMsitioii hy him would douhtlfss havt' hi'cn yood : hut I am not aware tlia'^ ;.s consul In- had any sufh authiti'ity imlfss s|i(' '.ally dcli'i;atcd. I'crhaps the fair <'onstrufti(»n of tnat letter Would he that Mr. Ilowai'd intended to convey tn the <;()vernor that he was so s|)ecially authoi-i/.ed, hut the authority he claims is simply ••in order fhat certain persons liijicved t(» he ifuilty of the crime of piracy may he hroui^ht 1 itiire tin' propi-r ofHct-rs of justice, so that the e\id( 'c ot" licU' uunt or mnoci'iice ma\' he lu-nrd and consii lereersons cliariifd ith the crime of piracy hefore 'ssuinu' the warrant for Ii:i\inir tlu'in hronu'ht to trial.'" A siiu-ere hojie is tl leti c\ piessc'd that no ohstacle will he thrown in the wav of i 2M2 VI('K-AI>MlliAI/rV iJKI'oliTS !'*'••* Id'iiiLriiiir lliosr cliai'i^cd with ><) ufravc an oHcin'c to Jii-fici. Thk If tluTc ail' (Iftiriciicit's in tin- Hist, it can liarclly l»c niiri'l CnF>Ai'K;AKKtliat tlicy ai'r su]i|»!i(Mi liy tliis li-ttcr of Ity tlii' n(rm<;' ami fommittiiiLC l*>i' trinl |i('!'sons cliariri'd witli otlfnt'cs oi\ tlic lui^li s('a>. and ii lM"(»nirlit to trial, ont- of tlic jndir«'s to try tlicm, tins It'ttci. insli-ad of lu'inu' a fr(|nisition nndi'i" tlif >tatutf, or in nid of a rt'i|iiisition, if I may use tlu' c'X|»ivssi(»n, more rcxinlilr. an ait|»licafion to His Kxccljcncy in that capucity tiian tn him nndt'r the (Ith iS: 7tli N'ic., as an otilci'r adminisi'-riiii: tin' tr'»\t'rnnu'nt. more partit-idariy as tiic last |iarai:'r.i|i|i says: •• We had hflicvcil until this late honr that a rf(|ui sition lu'lori- tlu- i'Xfcntivc would not ha\'i' \*vc\\ rtM|inr»M| in till' first instance', ■■ which would rather corrohoratc tin- view that procccdinys were desired, indepemlent of a re(|nisitioii. As to till' depositions, in my opiiM(ni, it cannot make dir rcMpiisition n'ood if not i;-(»od without it. It appears to have hei-ii sworn hefore Mr. (Jilhi'rtas pulin manistrate, and was, I think, on his part wholly extra-juiri- eial, Xo complaint or iid'ormation appears to have lieeii laid Itei'ort' him to justifv his takiiii; the deposition, and il the char_i::e of jtiracy, which the statements in it unanswered would justifv, had lieen made at that time hefore him, hr hitd no jurisdiction to entertain it; still U'ss had he jiiriMJi.- tion if tlu' (dl'enci' was an alleiiVhouid he charu'ed with the commission within tlu- juriMli'- ti(Mi of the I'nited States of one of the crimes mi'iitioiml. that is lepdly cliarii'cd judicially, or hy )iuhlic process, or in Mime manner wari'antctl hy flu' laws of the country in w lih h the alleifed offence was conunitted. I think the word> "t the statute too clear to admit of any reasonahU' donl't i>\\ this jioint; ami the "Jml section of the Act confirms uh in this view. This section conti'inplates it heinir ne l>y ili' issuinir ot" a warrsmt, for in providinir that <-irtain evidcmi' lii;i\ lii' u> ■ if the cl'il spi Art of j»l -itinns lai |iriiper oH i/.iiiir the! die fui:;iti ilcnce: il uiljrh till a> v\ idem iijMin whi( '■nUI'SC till !;ikel> het' arc true."* lie did, in with expn ikhI then j Xclso,,, ,l'. will he st uiicre we kniiii '.V in Hint was i; ity and a 1 ill relay, t r<'|i()rt sa' arcfcdited I'lii'siiauee attidavit : "t liny, V li It I: OF XKW IJIMNSWICK, 2S3 iii:i \ Itf ii>;('(l lt\ tlif iiiiiiristratf or ufHcrr in tlic liivcstiixaiiiMi ''*•'•* mI till' ••liiiiiiialitv of tlic iktsoii ii|>|»iTli('ii(l('(l. it says, ''<'o|»ic'r» t^k ..t tlif (IcpositioiH Mpoii wliicli tlif oriniiial warrant uasCiiixAPKAKi L^nintcd,"" etc. This oltvioiisly rcti'i'.** to the oriiriiial warrant ifrantt'd in the coiintrv wlicrc the crini*' was coniiMittnl. and ;iiitt'rior to tlu' ri'(|nisition : and this \it'w wonid seem to !>»• iiittitaini'd liy jurists (tf thf highest crli'in'ity in thr I'nitcd St;it(S. lor in the jndi^nirnt of Nelson, .1,. in the Sn|>r«'nM' Cniirt of the I'niiccl Slali-s. in Kn nil N fllsi (1), avi "This s|>L'cics of j'vidc'Mci' is very diffi'rcntly liihTiiarKHial Law this virw coiifiniUMl li\ tli> <'H>>Ai'K.vKK()|tiiiinii i»r Mr. Ciisliiiiu;, May 21st. IH,'>4, in the |iiilili-||i . opinions nf flic Attorneys (lencfal ot' ihc rnitfd Stuti- volnnn- tlii'Hi' words : " Tlif prafticc of onr own Lrovcrmncnt, as well as tlmt n u fllii'itive from the jnstiee of one ot" the I'nited States will. out the exhiltition of a jndieial warrant issu»'d on snllicin, proof l>y the local authority." .\nd airain, in an opininn \<\ the same leariu'd u-entU'inan. .Nov. li. 1M.')4. pnldished in iIp same work. vol. 7. paii'c (I. he says ■.\ mere notificai from a forciu'n len-al on that a party irndty ot a crmir ii;i- rii-.i. escaped, and |ieiha|i> tied to the Tniti'd Stati's ot' .Vine is not sntlicient to justify the preliminary action of ili I'residi'nt. The u'elieral rnle is, the ii'ovel'nmelit n\' wlijc extrndition, whether Ky comity only (eitint; Klnhcr. sec. O Martin's Precis, si-c. jol), or 1)\- treatv. is demanded, lici d.h it IS ealle(l on to act. must liave reasonanle /irmi'i him dence oftlie uMiilr of the party sulMnitted to it. as well a- denuiud of the «'Xecnti\t' anthoritv." n\'. Ill Ai 1(1 aiTJini. \i>\ Itaije iJl '». in anothei' opinion of the same, he says : '• Itiii <• Justity tlu' commencement of in-ncecdini:' in extradition i' mnst appear that thi' criminal acts cliarii'cd wci-e comniiin ■ within the tei'ritoi'ial Jurisdii-tion of the demandiiii:' l:"\ V\'U\\\V\\\." I')Ut suppose the docninents ( ontain a chariiv au'ainst tin- jirisoiu-rs, whei>' do we find it alleu'eiich an (dfeiice as would he coijni/ahle in our courts. |M»sr.iit|y he ahle to in<|Uiri- into the sulllcielicy of the evi- ilriiic according: to tin- laws of this province'.'' If it was iiitciideil to use the term, as I think it must he taken to liiivc heen in its ifi-neral sense, then tin- ([Uestion has heen raised whether, inasmuch as it was ii(»t alle<;i'd that any of tlii'Sf |iarties had heen in the Cnited States since the acts on tlic hij^h sens com|tlained of were committed, hut the con- h tiiiiy was adniitteij on hotli sides, how can the ofteiice nc idiisidcri'd as committed within the jurisdiction of the Initcd States? The olfiect ot the treatv is t(» he found in line of its recitals, which is : " Whereas it is found u.xpedii'iit lit!' the i»etli'r administration of jiistii-e and the |>i'evention III Clinic within the territories and jiii'isdiction of thi' tw(» I'artics respectively, that |H'rsons comiiiittinir the crimes liticiiiaftcr eninuerated, and ln-iiiu- fiii;iti\i's from justice. -Iiniild, under certain circumstances, in- reciprocally de- livi'iTil up." It is well known that tin- |iiiiiciples of the common law |'i|'\:id«' the jurisprudeiK'c (»t hoth (iri'at l>ritain and the I'liiicil States, and hv tl le cotiiliioii I:iw. criliu are un(|iu>- i ddiiht' -s to prevent the tailiire of justice that would iiccosarily , "sult from offenders in oiu- country stn-kiiiLi" ittii^c in the other and then' heiiiu" amciiahle to no punish- iiKiit, that this treaty was entered into : and it is not ditliciilt tn understand how the crime ot piracy, in its ireiieral sense. iiiii:lit come within tin- operation of the tri-aty when a pirate •j,s»; VICK-ADMIKALTV liKI'OKTS 18t>-l havint:' ifoiu' into om- (»r otlicr of the coiintrit's aiid so iii;i.l, 'p„j. Iiiiiisflt' aiiu'iialtlt' to its courts and liad Ix'cii tlici'c l»'«;;ill\ Cjusackakk cliari^cd with tlu; ottciicc, liad lied oi- Itocii sul)S('(|iuiitl\ tbtiiid witliiii till' territory of tlu' otlu-r, that in sin-li a cas. thi' country where he was Hrst t'onnd niiii'ht chiini iiii'isili(. tion over the crime and the jierson so chari>:(Ml, |>ut I hav. i^reat difHcnlty and a*' as yet unahU' to arrive at the conclu sion that, when the pirate has never, after coniniittinL;' tin offence, eiitt'red the country of one of the contraclinn' jiartic-. hnt is fonnd in the ti'rritory of the other, the liovernnieiit ni the former can assume jurisdiction over the otfi'n<-c ami person, a'ld re([Mii'e him to he ii'ivcn up. and so deniidc tin latter counti-y ot its ch-ar Jurisdiction in the mattei-. I cannot, as at present advised, think it was inti'iidcd li\ this treaty to raise such a conflict (»f jurisdiction and ;iii- thority. hul that the word piracy was intendeil t(» apply tn piracy in its municipal acceptation, or if to piracy auaiii>t the law ot' nations then to the exceptional case 1 lia\"c ali(.\( su|iposcd : hut a>suminu' the oliencc as allciifd lo lie i.i,,- within tin- In-aty, and the retpiisition to he sutlicient. 1 \>V'<- <"eed to consi(h'r the next ohjection. Had Mr. ( Jilhert, either as police nuiiristrate or a jii-ticr of the peaci'. authority to I'xannne t(»ucliinu' the ti'utli of thf ♦ •hai'iic ' The terms of the >tatiitc arc that the warrant of lln' :;(i\- <'rnoi' shall " reipiir* all justices of the pcai-e and otlni' nuiii'isti'ates and officers of Justice within theii' si'vt-ral Jnri- dictiitii^ to li'ovcrn tlu-msclvi's accoi'dini2;ly, and to aid ii apprehendinu',"" etc.: and thereupon " il shall lie lawtiil i"! any justice of the iicac»' ov ■ thei- persons, having" powci' i( «'ommit for li'ial persons accused of crinu's aii'ainst the l:i\\- of that part of Her Majesty's dominions in which such -up- posed offeiidi'rs shall In- found, to examint' ujion oath." ii' The words of tlu' statute differ from the treaty. The W'H'N of tile treaty are, '"Judii'es and othi'r mai^isvi'ates." I ;iiii hound to tliinU this alteration, advisedly made, and I tiutl i' difKcuh to conceive any other reason than to preserve (in- sistency in the administration of Justice. In the trcai\ nothimi' is said as to the jurisdicti »n of the justices and hiIkI' ii OF NKW IliaXSWicK. :^S7 UK iiiiiuist rates. In the statntt' tlw iiONcnioi' can onlv i'c(|Mirf 1^*''4 justircs ot' tilt' |i('aci' and otlu-r niauistrau-s and dlHcfrs ot' i justice t(» act within tlicir st'Ncral inrisdictions : Ix-vond tlu'ii'CiiKSAi'KA jurisdiction tlicn tlu'V cannot act. I>nt tlic statntc says, "it .-liall lie laut'id tor any Justice ot' tin- |(»'ace or other [lerson liiivinii" [Mtwei- to coniniit tor trial persons aeensed ot' crime," tc : that is, I am inclined to thiidv, when accused of crimes II the I'nited Statt's over which the ofHcers respc-lively have luisdiction to commit it" eommitte(l in this |tro\ince. Then KK II siicli cases they slionUl examine on oath, and it the t-vi- jciice Would justity their commit.'al here, issue their warrant, ic. : and an insei-tion of the words '• or otliei- |n'rsoiis hav- iilt ]iowei' to commit tor trial,'" would seem unnecosary it" notices ot' the jieaee and other mau'istrates could act in all •iisf>. As at )»res«iit advised, I am disposed to read the fcniis, ■•in their several jurisdictions,"" in their hroad sio-. iiitication. I thinl< it more consistent with the scope ot" the statute and the duties to he performed that they should lie iiiiisidered as applying" to tlu'ir judicial a> well as their ter- liiiii'ial jurisdiction, it heinn-, | thiid<. iinreas(uiahle to siip- ]'!'-(■ that a justice ot" the peace, who cannot rect'ive an iit'oi'iiiatioii on a charire of piracy. (»'• examiiu- into the truth >!' -iicli charu'e if cou;ni/aI»le in this province, should, it' "iiimitted in the Tniled State>, detennim- on the sutH<-ii'ncy if the evidence aecordinu' to tin- laws of this pr(i\iiicc if the rime was committe(l In-re; tU'. in like manner, that the •eiiiinission»'rs authorized solely to receive information and •I'liiiiiit for trial in eases of otVeiices on the hiii-h seas, should ieal with crimes owv which, if committed in this |iro\in<'e, tlii-y have no jurisdiction: and from this construction no |'"-^ilile ditllculty can arise, liecanse tor e\cry crime nanieil ill 'lie statute we have either the justices of the peace or iitlicr persons havinn* power to commit ft)r trial; so that in tlii- rase, when it appean-d l»y His K.\ct'lleiiey"s warrant that the ci'iuie charii^'d was piracy, \lr. (Jilhert, whether as polici- magistrate or justice of the p 'ace. not liaN-iiiy- jurisdiction evei'siich an ott'eiice, and no pcjwei' to c(Mnmit for trial a I'trsoii chary:ed with piracy, could have referred the matter t" the jiidov ot' the Court of \'ice-Adniiraltv. or some (»tlier 2HH VICK-A I )M I KALT V KKl'OKTS isc.i oin. (jf tlu' ('((iimiissioiRTs haviiiii' authority ovfi" that otii'ncc Thk "■'"! powci" t<» coi'iinit lor trial jtcrsoiis chari^iMl thcrcuiili. CHfdAi'KAKKTo coiiHin' thi' niaifist 'ati' and otticors to thoir ri's|K'(ti\c Jurisdictions i,>, ni my oiiiuioii, in no rcspoct to coiitiict witli any clausi' in the treaty, l»iit in harmony with it, and in t'nrtherance of a proper and discret't execution of its stipu- lations (1 ). liut assumini^ tiie i-e(|uisition ritrlit, and that the niaui>- ti'ate had jurisdiction, we must consider the tliird poini. The (piestion liere raised was arifued as if T was sittiiiu- in the character of a Court of lpreiiension and committal for trial of tl ir 1 K'rsons accust'( 1. Tl le amount an( 1 val \\i' o f that eVKJciic is lor his detei'mination. A judn'e of the Supreme Court miuht think the evidi'uce of i^uilt stronn; and of innofiicv weak, or '•/'•(■ rcrs/i, but the law has vested the maii'lstratr with tiie power of wi'iii'hinu; and decidinu* on the eltect nt the evidi'uce, and it is the I'l-sult on his mind that is to di'termine its suliicieiicy or insutHcii'iicy. It is a judicinl discri'tion with which he is vested, which, 1 think, is ikii open to (piestion on IkiIhhs (•((/•/;//.v, and cannot be taken fioin him and assumt'd by a juds;'e of the Supi'cine Court. If it was numifestly apparent that tlu' evidem-e showed that im iilfcnci' had Ikh'U committe(l oi- that the party was ini(|iii-- tionably innocent, and llieri'lbrc thi-re was really no niatirr (1) Tilt' linixrial Statiii.' 12 iV: 1.'! Vic c. IM), piissrd in 184i), "to pmvi.l. I'lir tln' iiroscculioii aixl trial, in llor Majfsty's coionitf, ol' (iHi-nci's (•(iniiniiii ! witiiin ilif jurisdiction of tlio Adinirally," and .i^ivin;; coioniai inaj»il tin' Imperial .'statute ti »V: 7 \'ie. o. 7(1, as well as the want of iurisdiction in the uiaiiistrati'. — Hi-pwtir. OF XKW r.lM'XSWICK. .'S!i ot tiici Of liiw to l)f ti'icMl. Ill) iiiJittiT ill whicli till- iiiiiiii>trat«' '"<*»* roiild rXiTcisc ;i disci'i'tioii or judiiliU'lit. tlu'll tlu' case woiild '|'„^. lie vwy (\\\\vvi-i\\ : liiir is siifli the casi- Itct'ort' us'r Tliiil tlu'CuK-vn-AKK \('->cl was sci/.cd and l»v t'oi'cr laki'ti tVoiii tlu' i-aptaiii and (TfW oil the liiii'li st'as is not
  • |»iitf(l. I'naiisw crcd this is ii ///■//;/'/ j'licii case of' |iirai'y. and tlu' lairtlii'ii is cast on tlir iicciisi'd of jiistityiiiii' this a|i|iari'ntl_v w roiiii-l'iil at-t. Tlir iit>titi('atioii set 111" is that ho>iilitics wvw f\istiii<;' lirtwccn the I'liittMl Stat'.s and '/oiit'ctU'ratc States ot' Anu'rica. and iiii> si'i/iirc was nunh' iiikK-i' a conimission iVoiii. or l»y authority and on hvhalt" ot' thr ('oiit'*'(K'rat" Stati-s, and that tlicrt'foi'f it was an art of K'n-itiiiiatc warfan- and not of a. |iii'atical fharai'tiT. This, on the other liaiid, is (K nicd. and ii is alh'ii'i'd that the chiiiii to a«'t iin(h'r t\\v authority ot" the ('(Piil't'iK-ratc States is mere |ireteiie»' and color to ilisuuise and covi-r an ilh-ii'a! (K'ltri-thi'ion. The olijeet of privateer- iii<: in lieiieral is not, as Mr. Kent ohserves. t'anu- or <'hivah'ie warfare, l»ut |thiiider and profit: hut at t!u' pri'seiit pri\ateers and aetiiiii' on them are likewise free t'rom the imputation "I piracy. 'i'hey may make them>el\es aiiieiiahK' t'cU' the xiohition (»t ilir laws ot' their own eountry, and ma\ dciiiidc themsi'lves "I the riu'ht to claim her protection to >hield tlieiii from the '■"ii>e(|Ueni es ot' their act>. liiit they cannot he dealt with hy le lK'HiL;-ereiits a^'aiiist whom they are actiiii:' a> |iirate>. l''Ut as iieulrals they slaml in a \eiy diH'ereiit position from "HiLi'ercnls. Hellii^'ereiit-. We lia\t' -ecu. nia\ make caji- tl 20(1 VKMvADMIUAI/rV KKl'OUTS il^ fH' WSWmKm, IHtH tiUH's \vitli(»ut coimiiissioiis. Neutrals can oiilv [irotfct tluin- Tin: f'olvis l»y coiinnissioiis tVoin, or Ity actiiiif iiiidcr aiitlioritv CHEfiArKAKiM)!' till' 1 K"lliu'«",'t'iit <;« •vcnmiciit , or on board '•oimnissionril vessels, o|' niideP dnlv ailtliori/ed otKeers. Tliey caiiinii. without aiiv coimiiissioii or aiitlioi'ity. tit out in a iifuiiiil couutry a liostile expedition a_i;ainst a power at peace witli such eouutrv, and, under preti-nee of a«'tiMir in the uaiut- nt. or on the ix'halt", ot' a helliiferi'iit power, eoniniit acts on rlir hiifh si'as that wouhl. unless proteeti'd l»y l>i'Hii;ei'en: riirlii>. Ite acts ot" piracy, aninj.'' <>( ;i nation at peaci' with the one to wlnuu they owe alleiriainc ane, cjin it he said that this was made out -o cli'ariy and uiic(|ni\<'- eally that there was nothiiiii' for the maifistrate to ddiheralc on — nothinij: for a superior court or jury to try 'f Without expressini; the sli<;htest opinion of the iruilt or innoci'iicc dt the parties, or tlu^ prohahle result of a trial either het'oi'c a judicial Irilumal in this province or in the I'nitc*! State-, it will only he necessary to refer u'eiierally to the e\ideuce mi hehalt'ol the prisoners to show that the i-a l»y no mean- so entii't'ly free from doul>t or (|Uestioii as their <'(iiiii-t| assume;!. Instead of showing' that they were actiiiLi' nmh r a I'eiiMilar commission, or wef. helli^-erents tliem>elve-. or that the expedition proci'e(h'd t't'oni the ( 'onl'cderate Sta t<- o f A nierica, it appi'ar: dit so ir a^ ll lere IS evidence ot tlu nationahty ol the parties eiiii'auHMl, tliat tliey wci I I'll! sultjects. that the plot tit sei/e tlie\'essel was concocted iii this city, that the coinmissioii iindi'r which they cjaini t" act was not directecl to any of the persons en^au'ed in thi- capture, nor weri' any ol' them namei". iMtJii. l'<*»4 ' ... . . '— ,— ' liiTt'ltv tlu' Vi'Hsfl lii Irihiitinu, 'rin»ni;is I>. I'oui'i', «'ri/.('(l to a<'t as a pi'ivatc aniiftl vissi'I Ioi'Chksai'ka tilt- ('onti'iU'rati^ States on tlu' liiirli seas apiiiist tlic I'liitiMl •States, on till' l»ack ot" wliidi coiiimissioii is an eiidorsi'infiit ilatet. I'lst Xovenihi'i', iStSli, .-Ii^ikmI Thomas 'J. rower, wlierelu' lie transfers the eoniinand ot" the seliooner liilrihu- t'liiii to John I'arkt'r. The eoininissi(>n is |ii'(;vtMl hy |»root"ot' the siirnatnre of .letierson i)avis, I'resiih'nt ot" the Cont'etlei"- ;ite States, and ot the seal ot" the Confederate States attaelied thereto : hnt Mie endors«Mnent is |»rovey the slinlitest i'videiiee of the liand-uritinLT of the suhserihinu* wihu'ss. There is n(» evidence of who this .!ohn I'arker was. It was KIC \i'd that at Xassa'.". a Xova Seotian named \'ern<»n < h(ifilic was. or under wlios«' co' land wlicu this cxpcditioii was planned and cxcciiteij. I not appear: iku- wa> there any exidence to sh(»w that \v >f the parties eiiLi'ao'rd in thi aplure had evi-r hceii (Ui id the It. tr'iliiitinii, or ill any way c(»miected with. her. <> nc c(Ui- iiai'y, r>raiiu', who would appear to have Ik'cu larii'c of till' capturing' party, de-crihed himself on licd hy the title of ccdoio I. Lockr '''■">■ Tarker. did ll.)t proceed Mil the expedition I oinrh he I'oarded her suhsei|iU'iit ly otl'(iraiid .\laiian and look the 2J»i' VICK-ADMIKAI/rV KKl'OliTS ]8()4 coMuiiaiKl), Init iiddri'ssi'd an order to " I.iciiti'iianl ( Mill- Thk inandiMir •Inlm Clihttoii Hraiiic, " itM|iiiriii!j: liiiii to proceed CHKSAj'KAKKto Xi'W ^'ork wltli 1st Mi'ii t fiuiii t II. A. ran-. Jiid I/ku- tciiaiit l)avi()ard the steamer, nsin<; liis (»wn discretion as to time nnd jilace of' captnri', to act towards the crew and passenger- in accordanci' with I resilient s instnictions, ami as < iriii.n- stances permit, hriiij; his |iri/,e to (irand Manan for fnrtlier "I'ch'rs. 'I'his is sitrned .lohii I'arUer, ca|itain ('. S. pri\iiteer lulrilmliiiii. There is no evidence of what these parties Were ojficers. or how or liy whom they were appointed, with ilie *'.\eeption of |)avid Collins, and ln' a|>|ieai's to ha\'e iiot hi- commission of second lienteiiani t'roin .lohn I'arker. It i- III tlit'se wori Is Te !) Win ( "01,1.1 Ns. Urposiiiij confidence in your /eal and ahility. I do hen li\ antiiorize and commission yon t" h-'.d and a>-iinie the rank ot' second lieutenant, and this >liall ')*' yonr authority for any act, under order from nu'. a^amsi ihe «id\t'rniiieiii \>\ the I'nited Stati's, or auaiiist tin- citizens of tie- I'liiteij States, or airainst the property ot' either, ity si-a ritish siiltject to a Uritish siihject, in the (^hieen's doiMinions, it is certainly a proceedinu'. to -;i;> the least of it, novel ill its character and fairly challenuini; invest iii-ation. It i> trne, exideiiee was offered of miliiarv men iittaclied to tlu' (.'oiifederate army, showing:' that in operations on land otHcers commissioned lo dischari:'e a partieiilar duty had. l»y the practice (»f the Confederaie service. antliMrity to appoint otlu-rs under them to act a- oHi<'ers to cairv out such dntw and that siieh wa>a ,•< CI i|_;- ni/.etoni of the sersice : hiit the practice pnrsiien In otliei-r> iiin|iiestioiial»ly in the >er\ ice of the ( 'onf<'ilei;in OK XKW r.KIXSWICK, •2m :.i\u\ Siiitfs in tlif tifid, iiitiiiillv ciipmrd in t),,. wm' (tt' tlic Ihk- •■'^•>4 lilc tt'rritoi'ii's, i-< iidt (|uitt' concliisivr iis to l>iitisli ■;nl»ifi'ts '['„^, mill ISritisli tci'iitorv. lint In- nil tlii< its it iiuiv, can it !»»• ('iii>\i'ea (IcihhmI that tli»' |in> ■(■('(rmir. il' jiistifiaiilc, was imt. in luanv tifil^ tratufi'?', niKSt irrf^-iilar, ami the jiiiiini jui-it cast' ht'titft' ilif iiiaii'istiaic Ittinii' on the one hand clcaf. and the alhuvd Jiistitication )iix'stiitiini' the iri'ciriilaiitii's and !•(•( nliaritits it ilid. and hfin^j <»|i"ii Id lo tin- lulll'lli olijcctidli. TIm' ('(ililliiilliit'lil first srt» TiiK "*"^ i''^ ^^'i' Iiiiv*' seen, the warraiif ot' Ills Kxci'lli-iicv, wliidi ("iiKHAPKvKEiillrirt's the |i:irti('s ti) l»r <'|iiii-»;«'tl upon the oaths uf Isanr Willctt aixl Danii'l IIcikUtsdii, with havitit;- (MHimiittcd the r this crime o|' murder, and nut a statement madr l>y him that either jiiraev nr muroliite m-ees-itv <>t' the avernH'nt tlnit the ei-ime was eommittcMl within ilir I'nited Slates nf Anu'i-iea : hnt a^ there was neithei' of tl pai'tienlars in either of the letters of the eonsnl. he. no d le-c Ollhl Ironi necessity, i>'S(»rted to tin alhdavit transmitted thciv- with of Willett and Henderson, and tVoin the 'acts stated \>y them Iranst'onned an aHida\it intended, as the coii>id >ays.'Mo l>e |iresented t(» His i'lNceJlency. in ease he re(|nires »'\i(h'nce ot' the criminality ot' the |>ersons idiaiu'ed with the eiinu' of piracy het'ore issiiiiiii' the warrant for haxiiiir them hroMii'lit to trial." into a ehariiv hv Willett and Heiidi'r,' (in <)| piracy and mnrder. I he \alnelessness ol tins doeiinieiii. either as a chari^e or Vi-ritication, I have already shown: Imu where the alleifatioii that the alleijfeil (iffeiiees were (•(•mmitted within the jiirisiil nor Willett nor Henderson say anylhinu: iihont it, unless 't was assumed tliat as there could not hi' a re(|uisition for an oth'nee unless so eomniittt'd, the oft'eiiei' alh'ii't'(| must neces- sarily havi' heeii committed within the ni'cessary jurisdiction. .\irain, this warrant does not alleijo that the re<|uisition wa- made hy the authority of tin- Cniti'd States, hut on hehalt' of tlie Inited States, hy no means eonvertihle terms, thoui;li if is fnu- tiiis ulleiTJition is preeeded hy the avorinont fliut in pursuance <)f and in aecordanee with the said treaty and act, a re(|uisition lias heen ma we \\\\\v si-cii. iirocccils to n'citt'C'm->Ai'KAi{B ih;it »»ii re'»H'i|»l of this wiirniiit he cxiiiiiiiud iMiiu W'ilh'tt Diiih'r oath toiu-hiiiir tho truth nf the i-harirt's set Inrth in the i'\i(h • f thr said Wilh-tt. oil -aid uurraiit. aiiaaf W'illctt. *'tf.. taki'ii and sworn to this lioth day of Di- .(■iiiht'r. istlo. lirfon- nu', II. 'I', (iiltu-rt, etc, actiiiii' uimU'I- a warrant under the hand and si-al of thi* lion. .\. II. (Jordon, 1 1.'. The said Isjiae W'iMett, lieiii!:: duly sworn, saith," etc. h then details with jiartieuiarity thi' eireuin>tanees of thi' rajitiire, an \ ici: .\l)Mll^\l;l'^ K'KIm nrrs IStil ii'ii\ crilnl ; iltld ii.' tlli;- Wil- hi^ r-iilc illllllMlitv to ;itt. i|. TiiK should li;i\f i-iiiiliiifi| liliiisclf' siricily williin it' icijuiii . aiil it ;i|i|in'litii(linL;' tlif |iri''(iii- ; ii-cd. wliicli In- slioiiM li;i\. iloiir \>\ i^siiiiii;: his wMiTiint rt'citiiitr ihf i;(>\ri'ii(ii''> uiirniii'. the chiiruT thi'iciii i-nntiiiiicil ii-jniii^t ihr |iris(»iifi'>. thf i<- <|nii'<'iti<'iit iiii|M)i<)ii of the |M'i'^i)ii'< iiiiiii'il thd'i ill, iiidI -iilil iii>i hiiNc n i\t'(l ii new ((iiniihiint <>r iiili'"M|iir»'(| new ('hiifL;!' (»r new iiiiitlt'i' iiiiiiinst the acfiiscil. 'I'hc fDrrcctiios til' thi- \i<'W will. I IIiIiiIn. 1m' cnllliniicd liy ictrlclirr to the ||||| xriji | A<-l S \ !» \'ir. chill.. ll'O. |.;issri| Sfh .Kilirnsl, lM4.'t. :iliil tli. t'onns till IT '.'•ivfii. Ilaviiii; so i'XiiiniiU'ij IsiiiK- Willctt, tin- liiiiil fonnnitin.'iii recites that ll|ioii the evitU'lice ot" the said Isaac W'illet. aiid ill |tiirsiiaiice ot' the aet of asseiiihjy, he issued his wariaiii to answer, not tli< chai'ires ill the !i<»venior's warrant, hut the coiii|ilaint ni Isaac W'illetl. made on oath, tor havini;, etc., in the wdid- whiell I liel'ore melilionecl, to lie dealt with accordim.': til law, the >aid com|ilaint haviiiu' heeii made and taken, aiiil tlii> warrant haviiii:" lieeii issued in |iiirsiianee of a warrant under the hand and seal of the irovernor, i-tc. in whicli. howi'Mi'. I am coiistraiiietl to ditler t'rom the learned jiolici' mayistrale. the warrant of the law, hut in the wortls ot tin statute to Ite deli\ered ii|' to justice aeeiu'diiiLr. •''•'■. and hat he The col iKlxillli' h« :iiii| he hil el piracy ilie witm :iiid upon under the < mistalih' ili'liver ea 111' , iracy ite.. and ejiarire in '■mitrmi; remain ti < »ii referi eliiirile o • itli'iice w IWelltV III OK Ni;\v isiiiNswnK, '2\)7 ill Kraiii'.' flic ii'iiiic nf (Vinnlnltni li;iiikni|iti\ ii^ ii|'|M-Miw liy '■*•»♦ the Wllllillll ot :in'«':^t i«*>llf lt\ (-'m -ai'k\ ill.' WMITllllI I'T iillt' ol' I Id' \l;iiiiir|i niinc, etc. h llit'ii ii\t r- jii'onl' i>\' tlic rriiiics. :iiiil tlif \\;in:iiif liiiiiltl Im' iri-cli;ir;^<'(l liv ihi. (•(iiir-f ui' KK iw . ulin-li IS thr 1 Ihcl iiiKUT tlii> •oniinitiiM'iit iniil'r' tlit- Aui'iis. to l>f ilt;ilt witli iifconliini" to law. iJiit tin- (Hiirt lii'M tin- wiirnnit Itinl ii|miii iIk- "/ri'iind tliat as the I'liininil- iiKiit was timlcr a s|i('cial >talnt<»rv ;MiiJi(»i'ily. flic terms ut' the luinmitiiM'iit iniisf !»«• s|ic-iiil :iiiil txaclly |iiii-iic tliat .iiitliority, ai'tinn' mi and rccnirni/inL:' tlif aiitlidiiiv n|' .\'>i.s/,'s ■ •iM ( I ), wlu'fc it is laid down tli;' tlir true di-iiii<'ti(in i- iliat wlicii a man is •oinmittt'd ti>r aii\ friinc, fitlicf at <(.iii- iiioii law (»r <'i'fatf(| liy act of |iai'liaiiM'iit, tor w liii 'i In- i> pmiislialtit' !•> indictment, then lie is to he eommitied until lii-eliariTed hy due course ot' law. hut when it is in |iursu- ;iiire of a special aiitlioritv the terms ol" flu' commitiiieiit iiiii>t Ik- spcciid and exactly |iursue that authority. The e(Uiimitmeiit then proeeeds to i\»'r that liie priscuiers liiiviiiii" heeii hroiiLrht hejore the iu>iice under the warrant, :iiid he liaNiuu" |U"(tce»'d('d to tlu> investitratioii of the chai'Ljc "t piracy changed aurainst them, and up(ui examination ol" tlie witnesses under oath touchintr the otlence of piracy. :iiid Upon the evidence hcfore him. >o under oath, la- did. under the act of parliament, retahle to convey the prisoners to the common jail, and f Aincricii, and witliin tlu' jurisdiction of the I'nitt'd State; Thi: "* Aiiu'rica, and tlu' circuit courts thereof, uijainst the law: CHmAi'KAKEol' the rnitt'd States of AMierica, and tlie statutes of tin I iiited Kin!i:(h)ni of (Jreat IJritain and rrehiiuh So we that at i!verv stau:e of these i»rocee(lin«;s tiie chari:;e assui ^ee Ur: a ( litfl I'eni phase In the first instance the consul simply jwesents the coiii- plaint as that i'ertaii\ persons were helieved to \)v a <'harancies. whU'h would seem to n)e dithcult to reconv even there, where a statutory t'orni is <>-i\i'n to he used liv the j».)lice inai::istrate of the nu'tropolis, the adju(li<'ation i>sit forth. The fo I'm is uiviMi thus: " I>e it reiuendK-red that on. etc., A. 1>., etc., is l)rouu-iit helori' nie, .1. 1'.. etc.. and is charu'ed l)efore nie for that he, t\\v said .\. I>.. on w ithin the iurisdietion of tiie I'nited Stat es OI .nierica. ilid (iiere stati' theottence): and forasmuch as it has heeii -hewn to nie upon sucli evidence as hv hiw is siitHcieiit to jii.-tity tlie comnnttal to Jail of the said .V. 15. pursuant to an .\ct i»assed in the 7th yaw of the reiii'ii of Her Majesty, mtitled, etc., that the said A. H. is i.niilty of the said ■ ilK'Uci', this is therefori' to command. I'tc.'" Tin' cases to he found heariiin' <>" this point lay •(•. •I., says: '•By a leijcal warrant f mean a warrant which upon the face of it shows a riifht to detain, and that riirht cannot exist uidess there he Jurisdiction in the mauMstrates. To deny that this must appear upon the face of tlii' pro- ii'ediiitrs i^ to call in (piestion one of the most important rules of the criminal law." In Kite iV Lane's case referred '■'<■ .M»hot, V. J., says: " It is a first princii)le a.s to all acts 'ione l)y magistrates that the Jurisdiction >h()uld ap)»ear on ill 1 Q. B. 152. (2) 1 R iS:('. 101. ''if '50' » \'ici:-Ai)Mii{.\LT^' ijKi'oirrs IHiil llif t'acc ot thrir |>i'iiccc(liiii>-s." And r.cst, .1.. savs : •• It i- TiiK ^ si'ttl('(i ]ii'iiici|i!c that iiciial statutes and >noai'd a xcssel lialile to t'oi't'eiture undei' 4") (ieoi'Liv III., c. 121. lie tit and aide to serve I lis Majesty in his na\iil service, he .-hall, npon such proof as li\- the said Act of tin- 4')th vear afoi'(-;ai(l isre(|uired, he coiumitted ]»y sucli Justi> >■ to prison, to answ'r such information and abide such judi^ ment. etc. Ahhot. ('. .1.. savs: — "This Act of Parliament of the ">7th year ()f(ieor<;e fll., c. XT, is one higldy heiir- ticial in pr(,'Vi'ntinii' tVaiids upon the revenue, hut at the same time, inasmuch as it trenches very strontrly on the liberty n| the subject, we must take eare that its j)i-(>visi()ns are strictly pursued."" And asi-ain; '' tlu'se circumstances stated in the introductory })art of this return seem to me (piite sufHcieiit to warrant tliis commitment, and if it had l)een stated u|i((ii 'lit it sutHcieiit."" And pi r llolroyd, .1. : "Tiie jxiwer of the mui^istrate to commit de- pends on the proof before hijn, and the rule is, that wln'ic ii limited authority is <>-iven it must be shown to have been strii'tly pursued.'" And in Chn'sfi/ v. U>iin')i, (2), where the validity of sin order made by the Lord Chancellor under 6tli Georg'e IV., e. It), sec. 18, was (piestioned, it was held that the order must shew on the face ot it whatever wa- necessary to i^ive jurisdiction. And C/olerid<;e, J. says: — *' We cannot intend for or aii'ainst the order but must aid warrant and commitment: and a> it appear; M^ 302 VI('lvAI)MIIiAI/rV KKI'OKTS 1«'>4 to mr tliat tlu' slu-ritr of the i-ity jind comitv of Saint .lolm. Tni.; ^Iit' l«'t'|>t'r of tlu* jail of till' said city and county, actcil CfiKisAi'KAKEUpoii tlic waiTaiit or coiinnitiiKMJt of the said II. T. (lilhcit, accordiiii; to the rccniiivnuMits of the same, without malic or evil iiiti'Ut, I do. hy vii'tuc of the power conferred on nir l»y the Act of AsstJinhly, exempt the said keej)er of the said Jail from all civil suit> which may hi; hrouij^ht airainst him for or by reason ot liavinu," acted on tlu' said warrant nr commitment. Tlie vessel and cargo having been brought to Halifax, N. S., were, by diroction of the Ad- ministrator of the Provincial Government, plucetl in the Vicc-Adniiralty Court for ad- judication. Tlie (/iieeii v. The Chempeakf and Owgo, 1 Old- right 707. The prisoner, Linus Seely, was subsiMjUently found within the I'rovincc of New Brunswick, arrested, and tried for assault and piracy on the high seas. The following notice, convening the Court to try the case, ap- peared in the Roijal Gaicfte of the Province of date ^Fay 24th, ISGo: nv AiTnonrTY. By His Excellency the Honor- able Arthur Hamilton Gordon, Lieutenant (Jovernor and Com- mander-in-Chief of the Province of New lirunswick ; the Honor- able Sir James Carter, Knight, Chief Justice of the said Prov- ince ; and the Honorable Robert Parker, one of the Judges of the Snpreme Court of the said Prov- ince. To all whuiii it mai/ concern : Know ye, that in pursuancf of the power and authority t^ us given by virtue of Hor iNIajesty's connnission or letter* patent under the great seal of the Uinted Kiugvlom of Great Britain and Ireland, hearinir date the eighteenth day of ^hiy, in the first yeai' of Her Majesty- reign, we have appointed, ami do herel)y appoint, a session [<< he holden of the Court consti- tuted by the said connnission, pursuant to the .several statuit- in sucli case made and provided, for the trial of all treasoii>. piracies, felonies, robberies, niui- ders, conspiracies, and otlur offences whatsoever, and the ac- cessories thereto, done and com- mitted upon the sea and within the jurisdiction of the said Court, on Tuesday, the thirtieth day of May next, at the Court House, in the city of Saint John, in the .. The jury at a late hour last nijrlit, and iifter an tl le absence of ten hours from Court, returned a verdict of " not guilty." and the prisoner was discharged, the Judge giving him a few words of caution as to his future course. Having liean 1 th princij)al evidence and the charge of the judge, we think that the verdict of the jury could not well have heen different from what it was. On all the points hut one the charge was against the prisoner: hut that one — and it was the most material one — was in his favor. That point was as to the e.xist- ence ot tiie (lunnns liinnidi on n the part of Seely. Tlie c om- nussion under wIik ■h th Is. I irauie and arr e princi- pretendecl to act, a commission said to he issued 1)V Jeffcn on Di ivi.- to M'i;i:U. The Grand Jury to- Thomas Power of t\w iMribu- tion, and purporting to he trans- f'erri'd l)v him to Parker, was of •lay I'ouiid a true bill for assault Mild |)iracy on the high seas U'^aiiisl John C. IJraine, David Collins, et (tl. Linus Seely, the only one of the above named parties in custody, was arraigned and ])leaded not guilty. He silectcd Messrs. Gray and Wel- e States. This tlien wouhl seem to establish that the prisoner considered liiinself to lie acting as a belli;j;ereiit ; that he did not assist in sei/iii^^ the vessel solely for his own jriiin, but as a pii/c to the Confederate States. In making up their minds, tiie jury had several col- lateral circunistaiices connected with the affair — both before it took places and afterwards — to consider. One of these was as to the sale or disposal of the cnrjro, or part of it, at Shel- onrne, lis won X. S. Id (1 at Lahave. an seem to estal)lis]i T that the ])arties so disposed of tilt! cariro for their own beiiefit. It was lietween these circum- stances and otiiers of lesser note that the jury had to make their decision. X ow, whatever mitiiit have been that decision, had Braiiu or I' irr oeen on th eir trial — of whose original inten- tion from the outset there can no doubt whatever- fti as Seelv is concerned, the jurv. in giving him the benefit of tin- doubt that must have existnl upon some of their minds, ili was uinpiestionably and iiidi-- putably sold or exchanged at lln- places named, it was done In the principals, and althoiigli piracy, as far as these principals were concerned, it was an act over which the subordinates hail no control ; they got notliiip^, and expected nothing from it : and these circumstances, witli the mode of his enlistment, un- doubtedly led to Seely's acijiiii- tal. If Jbaine or Parr wen- put upon their trial for thesaim- offence, we presume they would have to rely upon a regular coin- mission in justification of their acts. Without a cominissinn their disposal of tlu! property was piracy ; for the judgecharged that, although the subjects of a j)ower at war may seize tlu property, public or private, ot the enemy, the property so seized is taken for the public good, and is to b(! delivered up to the (iidi- lic authorities, and must not he held for the pri'-ate benefit ni the captors. The case of Tli>: Saladhi, in- ferred to in the argument ot counsel, (iiUc. p. 24M, was tried at Halifax, N. S., July '23, 1S44 It was a ca.se of mutiny aiul murder on a voyage from \'al- paraiso to London with a very valuable cargo of guano, coppii OF \i:\v iMirxswrrK. 305 and silver. After the master iiiid some of the crew had Iteen iiuirdered, the instigator of the iiiiitiny — a Captain FicldinL'' — mid his son, a hid of iit'teen years of age, were thrown over- tioard,and the vessel was wrecked (III the coast of Nova Scotia, not far from Halifax. Fourteen persons were on board when the vessel left Valparaiso ; only six Mirvived when the vessel was t'oiind on the Nova Scotia coast ; the othei*s had been thrown over- board. The court of trial was coiiiposed of the Admiral on tlio station, Sir Charles Adam, Haliburton, C. J., and Halibur- ton, Bliss and Hill. J.T. There l>«i4 were four counts in the indict- ri.,,,, ment: (1) piracy; (2) taking (-riiv,\,.KAKK the property on board of the vessel; (•')) mutiny, and pirati- cally taking possession of Uio ship and money; (4) piratical acts. The prisoners were all found guilty, and four of them were hanged. The other two had been forced to assist in the crime to save their own lives. For a detailed statement of this extraordinary ease, including the confession of the prisoners, see The Gleaner newspaper of Mira- michi, N. B., of dates June 19th, July 27th, and August 3rd, 1844. •'±w 806 VICK-ADMIUAl/rV KKI'OKTS. A LIST OK STATITES UELAITNU TO ADMlllALTV. (iiiicral Sldhltis /u/iiliin/ In Adliih'dlti/. 1') Kicli. 2, c. '5, .Inrisilictioii oi' till' A<1- Kc|K'iik'(liMiiiiii iiiinil iiiid Ills Dcpiitv. \>y 4'J \ \:] 1:5!>1. Vict. »'. ;)'. 2 Will. \ Miii-v, Towers of Ac'iik'(liii|i s. 2, c. 2, 1090. 1k' cxi'i'iiti'd l»y Com- l»y 22 Goo, iiussioiiers. 7 & H Geo. 4, c. To suine otH-ct. 65, 1820-7. 18 Geo. 2, c. 20, 8.14,1744-5. 2 .^' 8 Will. 4, e. 40, 1831-2. 28 cV 211 Vict., c. 124, iSOy. 31 ct 32 Vict., 0. 78, 1S(')S. 2 k 8 Will. 4, e. 40, 1831-2. Coniinissioiici's ot' Ad- iiiiralty. — liicoi'i»oni- tioii aiul (lUoiMim of. — Towi'i's of to act as .histices of the Peace, administer oatlis, etc. — Suits Itv and aii'ai list Transfer to Conimis- Ueiiealediniia sioners of Admiralty by 28i*t20\'i c. 33, s. 1. Kepealediniiait by Stat. Law Kev. Act, "T-l. l{ei>ealediniiart l.y2Sc^21tVic. c. 112. s. 1. ft of Civil ])e[»artment c. 112 of Navy. o ^ 1 6 it Will. 4, c. Mnniciital Corporation 70,s. 108,1835 Act, 1S35. Cluirtered Admiralty Jurisdiction of Bor- oUii:lis abolished. Cin- que Forts excepted. 55 (uM). 3, 128 Purchase of land for 1814-5. tele!xra[»h stations l>y Admiraltv. I LIST <>K STATl TKS. 307 (\„(sl (Sihiril S tUiii'ii r^rri'irt I t (' fi IH Vict. c. KM, s>. l-j.l, 4:5:;, 4:5!i, l.s:)4. is \- !!♦ \'i(t. V. !•!, s. -JO, IS ■). I'.i k 20 \'i('t. c. s:5, ih;>(;. :il it :J2 Vict. c. 71. Coiintv ('(.urts Adiiiinilty .liirisdictioii Acts, iSCiS. .1:^ it ;>•) Vict. c. ."»1. ("oiiiitv ('(Mirts .Adminiltv .Iiirisdiction AiiiciKlinciit Act, 1 Still. ;5s it 3!t Vict. c. .')•), Coiiiitv Courts Act, ls7r>. 10 it 11. Shihdis h'l/dti'iH/ Id Miirhi V.\ Cha. -, s t. 1, ( oiniiiaiiu 0, l(i()l. 1(1 it 11 Vict. c. »i:5, Kulisiiiiciit. 1S47. •Jn Vict. c. 1, 18:)7. Kiilistuiciit. 2'i it 20 \'ict. c. 4, Coiiniiissions. 1S02. 8:! it :54 Vict, c !>7, Stamps. s. n, sell., 1S70. 41 it 42 Vict. c. 11, J\eck()iiiiiii- o\' Scrvi s. 04, 1S7S. 42 it 4;} Vict. c. 32, Annv Discipline andKc^nila- cc. IS 70. tioii (('oiniiieiiocineiit). 42 it 4:> Vict. c. 3'], Army Discipline and Reiriila- 1S7;>. tion. 4:1 Vict. c. 0. Army Discipline and Jve_i:!;ula- tion (Annual). Stdluli's /•tc/d/i'iu/ fii 3f( rc/i (Piracy and Desertion). s (ieo. 1, c. 24, 1721-2 (Wauvs). 1:1 (Jeo. 2, c. 17, 17:]0-4O (FiXeni[)ti()ns tVom Inqiressment). •j:i (ieo. 3, c. 07, 1702-3 (Obstructing- Xavi^iration). 30K VrCK-ADMIWAI/rV liKI'OKTS. 1 fi 2 (ic(.. 4. c. 7t;. IH'JI (Salvji.u'c, ('in<|Mc I'ort^ 4 (iiMi. 4, c. H(i. l.SL>;{ (Lascars). ♦1 (ioo. 4, c. M7, ss. IH, 11), lMj.-> (licru-f of Sliii.wruckttI M iniici's ;» (}t'(.. 4, I'. :{7, 1H2.S (Salvatrc ('iiii|Uc I'ortH). 7 Will. 4, \- 1 N'ict. c. HH, \H'M (Mutiny). ;; \- 4 \'ict. c. .")»;, 1S4(I (Ivc-ristcr, India). lii i^ 1:5 \'ict. c. -J.'), lH41t (Di'scrtioM tVoiii I'ortnunu'sc Sli 1;; k 14 Vict. c. -24, lH.-)0 (Salva.ifc in Ciisi' of Tiracy). 14 iS: i:> Vict. c. 1(12, 1H.")1 (St.iincn's Fund). 1") & 1«; Xu't. c. 20, IH.VJ (Desertion iVoni Fofei('iinicn s un( !)• 17 k IH Vict. c. 104, lK.-)4 (Merchant Shipimii;-). 17 \- IH Vict. c. 120, ISol (Merchant Shipi.in.ic Kei»eal). IS \- !!♦ \'ict. c. !tl, lHr)4-.') (Merchant Shipi.in,<;-). l.s A: lit Vict. c. 104, 18,')4-.') ( Passe n<,'ers, Iloiii,' Konu;). IS A: 1!> \'ict. c. Ill, lS,-,4-:) (liills of Liidin.u). IS it lit \'ict. c. ll!l, lsr)4-5 (I'assengersin Kniiirrant Sliips) 10 k 20 Vict. c. 41, ISoO (Seamen's Savin,i,^s Banks). 10 & 20 Vict. c. 102, s. ill, iSoO (Liahility ; Trocedure). 2:{ k 24 Vict, c 12(i, s. ;}."), ISOO (Liahility; Procedure). 24 it 2;") Vict, c 10, ISOI (Admiralty Court, Fn.i^^land). 24 k 25 \'ict. c. i)'2, 1801 (Passen.yvrs, Australasia). 24 k 2') Viet. e. 00, ss. 04-00, ISOI (Larceny). 24 & 2') Viet. c. 07, s. 40, iSOl (Malicious Injury). 24 & 25 Vict. e. 100, ss. 17, 37, 40, iStll (Assault). 25 & 20 Viet. e. 08, 1802 (Merchant Shippiuir). 20 k 27 Viet. c. 51, 1808 (Passenijers in Fimiii:rant Ships). 27 it 28 A'ict. e. 25, ss. 40, 41, 4(;, 18(14 (Convoy, Salva.i-T). 27 it 28 Vict. e. 27, 1804 (Chain Cahles and Anchors). 20 k 30 Vict. e. I0i», s. 81, 1800 (Convoy). 80 k 31 Viet. e. 114, 1807 (Admiralty C^)urt, Ireland). :J0 it 81 Vict. c. 124, 1807 (Medicines, etc.) ;n it 82 \'ict. ('. 71, 1807-8 (County Court). :51 it 82 Vict. e. 72, 1807-8 (Oaths). 81 \ 82 A'ict. c. 120, 1807-8 (Colonial Ships). 1. 1ST OF STATI'TKS. a09 :;:• k 'V.\ Vict, c 11, ImUX-!* (('ol..niiil Ships). ;!:; i c k :5H Vict. c. ;")!, 1874 (Chain Cal.lcs and Anchurs). ;;7 iV: :\H Vict. e. HH, s. :{7, 1m74 ( U'c-istration (»r Hirths, ot-'.) ;;s ct ;{!♦ Vict, c lo, s. :',, 1S7:) (Collisions). :!s k 80 Viet. c. 17, s. 42, 187.') ( Kxplosives). ;!S k .'{!> Vict. e. al, 1H7.'> (Pacitlc Islanders). :;!• i\; 40 Viet. e. 20, ^H7^\ (Desertion from rortuiruese Ship). .'{It iS; 40 Vict. e. -SO, 1H70 (Cnseaworthv Ships, and Miscel- laneons). 40 k 41 Vict. c. 10, 1H77 (Wreck). 41 .S: 42 Vict. c. 07, ■;ch. 1, 1M7S (Koreii^ii .Inrisdiction). 4J X' 4:5 Vict. e. 72, 1H7!> (Casualties, lnvesti,L,'ations). 4;! k 44 Vict. e. 10, IHHO (Taynient (.f Wages and Rating). 4;; k 44 Vict. c. 18, 1880 (Joint Owners). 4:5 k 44 Vict. c. 22, 1880 (Fees and Fxpi-nses). 4:; & 44 Viet. e. 4:{, 1880 (Carriage of (irain). 4;") k 40 Viet. c. 5'), 1882 (Merchant Shipjiing Fxpensos). 4.') k 4») Vict. c. 70, 1882 (Colonial Courts of FiKiuiry). 40 k 47 Vict. e. 41, 188:5 (Fishing Boats). 48 & 40 Viet. c. 40, s. 7, IH80 (Su])inarine Telegraph Act). 50 Vict. e. 4, 1887 (Fishing Hoats). 50 & 51 Viet. c. 02, 1887 (Merchant Shipping). 51 & 52 Viet. c. 24, 1888 (Life Saving Aj^plianees). 52 & 5:5 Vict. e. 42, s. ;50, 1880 (Sailors' Ftteots). 52 & 53 Vict. c. 4:5, 1880 (Tonnage Measurement). 52 & 53 Viet. e. 40, 1880 (Nfaster's Wages). 52 & 53 Viet. c. 08, 1880 (Pilotage). 52 & 53 Vict. c. 73, 1880 (Flags). 5:] Vict. c. 0, 1880 (Load Line). 55 & 56 Vict. c. 37, 1802 (Load Line, Provisions, etc.). Statutes RdatliK/ to t/ic Xao/. 5 k 6 Edw. 6, c. 26, 1551-2 (Sale, etc., of Commissions). 13 Chas. 2, 8t. 1, c. 6, 1661 (Command). m ■i 310 VICE- AT)^ I T R A LT V 1 i K PO I iT8. 8 Goo. 1, c. 24, s. 0, 1 721-2 (I'.rin^nno- Goods on hoard Ship). 18 (too. 2, c. 17, 17-5{t-40 (Kxc'iinitions from Iinpivssiiu'iit). 12 Goo. 3, 0. 24, 1772 (Dostructioii of Dockyard, Sliip, etc). '37 (tOO. 3, ('. 70, 17!> (Treason ar.d Felony). '.:; \- :U Vict. c. itO. s. »;. I.s7i> (llall-pay). c^ .-U \'ict. •h., 1S7<» (Stamps). 14 tV: ;}") \'ict. c. ;}(!, 1S71 (Comnintation and Pensions). & ;}() A'ict. 20. 7, 1S72 (Stanipf ;1(; cV :{7 Vict. c. 88, s. l(i, 187;} (Bounties under Slave Trade Acts). ns i!v: ;)!» \'ict. c. 17, s. 07, 1875 (Fxeniptions tVoin Explosives Act). 42 Sc 4:5 Vict. c. :}:}, s. 17!t, 187!» (Land Forces). 4:! Vict. c. 1:5, s. 5, 1880 (1 fall-pay). 4:! .^' 44 Vict. c. 40, s. 7, 1880 (Half-pay). 47 c*c 48 Vict. c. :5!), 1884 (Xaval l)isci[»line Act). 47 cV 48 Vict. c. 44, 1884 (Pensions). 47 it 48 Vict. c. 4(i, 1884 (Xaval Fnlistnient Act). 48 & 40 Vict. c. 42, 188.') (Xaval ICni.i^dits of Windsor). .')1 ct 52 Vict. c. :51, 1888 (National Defence). .")2 Vict. c. 8, s. 2, 1880 (Xaval Defence). .").") & 5() Vict. c. -54, 1802 (Xaval Ivniiyhts of Windsor). • h! ct 57 Vict. c. 45, 180:} (Xaval Defence). tStddid:^ RildtiiKj to tJiv Nariil /icscrre. Ii5 vl- 17 Vict. c. 7:5, 1852-5 (Xaval (^xist Volunteers). 10 & 20 \'ict. c. 8:5, s. 10. 185(! ((\)ast Guard). L'2 & 2:5 Vict. c. 40, 185!» (Xaval Volunteers). L'li & 27 Vict. c. (10, 18(13 (Otlicers). L'8 & 20 \'ict. c. 14, 18(55 (C\)lonial Xaval Defence). ■ >■) & :5(; Vict. c. 78, s. 17, 1872 (OtHcers). Stidiifcs lidatiiKj tit Prdrtirc and Jumdirtinn — Pnwtice in the Ad til i rait >/ Dh'i'ollatc Jurisdiction Act, 1870. s. 23. Vice- A i/iin'ralfi/ 0';//'/.>\ 20 & 27 Vict. c. 24. Vicc-Adniiralty Court Act, 1800. 30 & 31 Vict. c. 4.") (Vice- Admiralty Courts Acts Aniond- nuMit, 1807). 4;') & 40 Viet. e. 41, 18H3. (Colonial Courts of Inquiry). 53 Vict. c. 53, s. 4, 1889 (Xaval Prize Act). 53 & 54 Vict. e. 27, 1890 (Colonial Courts of Admiralty Act, 1890). O'lun/uiit Statutes liclatiiif/ to ShipptiKj and Adnnralti/. Rev. Stat, of Can. c. 70 (Light-houses, etc.) Rev. Stat, of Can. c. 71 (Discipline on Government Vessels). Rev, Stat, of Can. c. 72 (Registration of Ships). Rev. Stat, of Can. c. 73 (Masters and Mates). 52 Vict. c. 21, 1889 (Masters and Mates). Rev. Stat, of Can. c. 74 (Shipping Seamen). 53 Viet. c. 10, 1890 (Shipping Seamen). Rev. Stat, of Can. c. 75 (Shii»iting Seamen Inland Waters). 56 Vict. c. 24, 1893 (Masters' Wages Inlaiul Waters). Rev. Stat, of Can. c. 70 (Sick and Distressed Seamen). 50 & 51 Viet. c. 40, 1887 (Sick and Distressed Seamen). Rev. Stat, of Can. c. 77 (Safety of Ships). 52 Vict. c. 22, 1889 (Safety of Ships). 54 & 55 Vict. c. 41, 1891 (Masters and Mates). I'lev. Stat, of Can. e. 78 (Steamboat Inspection). 51 Vict. c. 20, 1888 (Steamboat Inspection). 52 Vict. c. 23, 1889 (Steamboat Inspection). 53 Vict. c. 17, 1890 (Steamboat Inspection). 55 & 56 Vict. c. 19, 1892 (Steamboat Inspection). 56 Vict. c. 25, 1893 (Steamboat Inspection). 55 & 56 Vict. c. 29, s. 127, 1892 (Piracy). Rev. Stat, of Can. c. 79 (Navigation Canadian Waters). Rev. Stat, of Can. c. 80 (Pilotage). 65 & 56 Vict. c. 20, 1892 (Pilotage). Rev. Stat, of Can. c. 81 (Wrecks, Salvage, etc.) LIST OF STATUTES. 313 S;") & 5() Vict. c. 4, 1892 (Wrecks, rnited States). oi; Vict. e. 23, 1803 (Wrecks, Siilva Iiii/iriii't fill' Priicficr (ind Kxti ml the JiirisiUcfinii o/' tJa Hi;//' Court of Adminilhi of JCikjUiikI. 7th ArcrsT, 1840. Whekk.as till' jurisdiction of the High Court of Adininiltv (»f EuijliUHl lUiiy he in certain res|)ects advantjiii'eonsly ex- tended, and the practice thereof imj)roved ; he it tlieri'foit' enacted hy tlie (Queen's most excellent majesty, hy and with the advice and cotisent of the lords spiritual and temi)or;il and commons in this present parliament assemhled, and by the authority of the same, that it shall he lawful for tin' tcTsi" f^fr'Vd''!'''^'-'''" ^^^ ^^'^' Arches for the time hcinlace before the dean of the Arches sitting for the judge of the High Court of Admiralty. Advocates, sur- H. And be it declared ami enacted, that all iiersons who rogatis and . _ • , i imutors^i.f ,iow arc or at anv time hereatter inav l>e entitled to practise Court of Arclius • • ^ , to bo admitted ji5. advocates in the Court of Arclies are and shall l)e entitled 111 Court of Admiralty. ^^ practise as advocates in the said High Court of Admi- ralty : and that all i)ersons ^yho now are or hereafter imiv be entitled to act as surrogates or proctors in the Court of Arches shall be entitled respectively to practise and act, or to be admitted to practise and act, as the case may be, as 3 & 4 VICT. CAP. Go. -m Miiroirates and ]»r()('tors in tlio said TFii^Mi Court of Adnii- lalry. acoordiiiii^ to the rules and prai'ticc now itrcvailini; and oltsorved or lioroaftor to bo niado in and hy the said lliu'li Court of Admiralty toncliinir the admission and iirar- risiniT ot" advocates, surrogates and jirt)ctors in the said Court I'l'siiectively. in. And he it enacted, that after the [lassing of this act, whiui'vcr a wlienever any ship or vessel shall he under arrest hy process amst.d'oiipm- i->uinii: from the said High Court of .Vdmiraltv, or the in'o-inionKUny, ncds ot anv snip or vessel havnii; l)een so arrestiMi sliall I'ave juri.Hii.- liiive been' brought nito and be m the ivgistry of the said "'' i""i'g«K't-t- Cdurt, in either such case the said Court shall have full jurisdiction to take cognizance of all claims and causes of action of any yierson in respect of any mortgage of such -hip or vessel, and to decide anv suit instituted bv anv such [nison in res[>ect of any such claims or causes of action rojiectively. 1\'. And be it enacted, that the said Court of Adniiraltv<'"iirt to decide sliall have iurisdiction to decide all (luestions as to the title tiH'' i" n'l •' _ ^ '- causes of piisses- \n or ownershii) of any ship or vessel, or the ijroceeds thereof '''"'i' *'"'''"«''' .... . '-'''^' iciiiaining in the registry, arising in any cause of possession, silvage, damage, wages or bottomry, which shall be insti- tuted in the said Court after the i)assing of this Act. V. And be it enacted, that whenever anv award shall -M'i;'^^''i'< "my be ' ■ luilile tr) tlie have been made by anv justices of the i»eace or bv anv iter- '"'■■''"'' 'V';".'- • ./ .( 1 . . I rully oil distii- xiu nominated by them, or within the jurisdiction of the '""'""• liiKpie ports l)y any comniissioners, respecting the amount nt' salvage to be paid, or resjiecting any claims and demands tor services or compensation, which such justices and com- missioners within their several jurisdictions are empowered til decide under the provisions of two Acts passed in the Mcond year of the reign of King Ceorge tlie Fourth, for liinedying certain defects relative to the adjustment ot sal- vjiije, or whenever anv sum shall have l)een voluntarilv paid I'll any such account of salvage, services or compensation, it sliall be lawful for any person interested in the distribu- tion of the amount awarded or paid to rc([uire distribution t') he forthwith made thereof, and the person or persons by ^.■^,N '&^'. 316 VrCE-ADM rUA LTV REPORTS. "app The Court, in certain cases, may adjudicate on claims for services and necessaries, al- though not on the high seas. Evidence may be taken viva voce in open Court. wliom such iUuoMnt sluill he iiwiircU'd, or, in the case ot vohiutary i)iiyiiieiit, the person l)y whom tlie same shall have l)een received, shall forthwith procieed to the distrihu- tion thereof amonii; the several persons entitled thereunto, to he ccrtitied in the case of an award under the hand of tiiu person or persons hy wlujiii such amount shall he awardrd. and an account of every such distrihution. >hall he anni'\c(j to the awanl ; and if any ])erson interested in the distrilni- tion shall think himself at^irrii'ved on account of its ixit heins:: made according: to the award, or orherwise, it shall h" lawful for him, within fourteen days after the nuiking of the award, or payment of the money, but not afterwards, \i. take out a monition from the said llii>-h Court of Admiraltv re(iuirinji: any person l)eing in possession of any part of the anu)unt awarded or voluntarily }»aid to brinii; in the same. to al)i(le the judirment of the Court concerniuiij the distri- bution thereof: and in the case of an award, the jierson or persons by whom the award shall have been made shall. upon morition, send without delay to the said High Court of Admiralty a copy of the proceedings before him and them, and of the award, on unstamped i)aper, certified under his or their hand ; and the same shall be admitted i)y the Court as evidence, and the amount awarded or volun- tarily paid shall l»c distributed according to the judgment of the Court. Vr. And be it enacted, that the High Court of Admiralty shall have jurisdiction to decide all claims and demands wh.itsoever in the nature of salvage for services rendered to or (himage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship 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 necessaries furnished, in respect of which such claim is made. YII. And be it enacted, that in any suit depending in the said High Court of Admiralty, the Court (if it shall think •ffM n & 4 vrcT. cAi'. ♦',-,. 317 exaiuiiio, or oauso to 1 niou1 )e tit I may sniinnon lit'tbro it and (.■xaiiiiiR'd, wittu'ssos l)y wonl of nioutli, and oitlicr l)L'tbro or after uxaniination hy U(li fact or fVicts, and in sudi manner, order and course, and under such limitations and restrictions, and to transmit the same to the registry of the said Court, in such form and iiianner as in and l)y the commission shall be directed; and that such commissioner shall be attended, and the witnesses >hull be examined, cross-examined and re-examined bv tlie imrties, tlieir counsel, ]>roctors or agents, it such parties, or cither of them, shall think tit so to do; and such commis- sion shall, if need be, make a special report to the Court Tniiching such examination, and the cotiduct or absence of any witness or other i)erson thereon or relating thereto; and the said lligli C/ourt of Admiralty is hereby authorized to institute such i»rocecdings, and make such order or orders, upon such re[»ort, as justice may recjuire, and as may be instituted or made in any case of contempt of the said Court. IX. And be it enacted, that it shall be lawful in any suit Attendance of I ,. . , • 1 /-< i' » 1 • 1 ,' 1 • 'i witnesses and ilc[ien(ling 111 the said Court or Admiraltv tor the judge otrroductioncf ,.,,', ,. , . ." '. ' , . papers may he the said ( ourt, or tor any sucli conimissioiier ap])omted m ei.mpeiied i.y rsuance of this Act, to re(iuire the attendance of any wit- -ses, and the production of any deeds, evidences, books iibpieiia. writings, bv writ, to be issued b\- such judg e or v.oui- niissioner in such and the same fonii, or as nearlv as niav 818 VrcK-ADMIKAI/rV KKroKTS. ■f Provisions of 3\ 1 Will. 4, f. I.', CXlL'llllccl to < 'oiirt of Ad iniriiUy, l»c, as that in uliicli a writ ot" su/tpn h" ml fcsflficini(/i>iii, oi' ot .■u iKi ihici s /iriini, is MOW issiu'd \)y Ilcr Ma/|(-'sty's ('(mih (>r (iiK't'ii's IJeiicli at WcstiniiistiT; and that t'Vcry jicrxiii (lisobeviiiu; any sndi wi-it so to Ik- issuiMl l)y the said ,iii(li:v or ('oiinnissiom.'!', sliall lu' considt'rtMl as in conti-inpt of tlic said Iliii'li Court of Admiralty, and may he i»nnisht'(l \\,v snch contc'inpt in tlu' said Coiii't. X. And he it enacted, that all the provisions of an Ait .passed in the fonrtli year of the I'eii^n of his late Maji'sty. intitnli'd " An Act for the further amendment of the law and l»ettei- administration ot ,jnstice,"' witli respect to the admissibility of tlu' evidence of witiu'sses interested (Hi account of the verdict or judi^ment, shall extend to the 'I'l- missihility of evidence in any suit pendini; in the said Court of Admiralty, and the entry directed hy the said Act to Im made on the record oi' .jinlii'ment shall hi' made upon tlic document containini:; the final sentence of tlu' said Conri. and shall have the liki' I'tt'ect as the entrv on such record. Powpr to iliroci is SIR'S. XL An;e ot tlie sai th )f th d Hi Court ot Admiralty shall under this Act direct, shall be i 1)V such party or jiai'ties, person or persons, and be taxcil 1 the reii'istrar of the said lliu'li Court of Admiralty, in sii' manner as the said judu'c shall direct, and rhat payment KUil ;j Si 4 VKT. CAP. ♦;.■). 31!> such costs sliall l)c ciit'orccd in tlii' siinu' iiiMiiiicr ;is costs lictwccii jiiirty and paity may \h; t'lit'ori'c'd in otlier [iroci'cd- iiii:s in tiic saitl Court. Xlir. And l>c it enacted, that the said Court (if .Xdniiraltv. ''""•.r^t,, ,iir.rt new trial,'*. Upon application to l»e niaiU- witliin three cah'iidar month- Jitter till' trial of any such issue hy any jtarty conct'iMu-d, may y'rant and diivct oni' or more new trials of any such issue, and may order such new trial to taUe place in the maimer lu'ix'inhefore directt'd with reon any ni'W ti'ial, or second or otlu'r new trial, and may direct hy whom and to whom, and at what times and in what manner, such costs shall he jiaid. XIV. And he it enacted, that the u'rantinir oi- refusinir to'-rantim; <.r tv- Li'i'ant an issue, or u new trial of anv such issue, mav he 'iiaiiurof ai.- pcal. matter of ajipeal to Her Majesty in Council. XV. And he it enacted, that at the trial of anv issue iiiiis of . xwp- •iir'i/i '»i'i -i' liiiii>i to he al- (lii'i'cted hv the said lli<::ii ( oiirt ot A(huiraltv, either partv '""''i'""''':'!-* shall have all the like powers, rit^hts and remedies with I'cspect to hills of exeei)tions as [larties impleaded hefore justices may have, hy virtue ot the statute made in that he- lialf in the thirteenth year of tlie reitiii oi' Kitiii; Ivlward the First, with respect to exce]itions alleu'ed hy them hefori' such justices, or hy any otlier statute made in the like Itcludf; and every sucli hill of exce[»tions, sealed with the si'al of the judiie or jiidn the said Court and iii)on all such persons; and ii u'ther proceedings in the cause in which such fact is found 320 VICK-AI)MII{ALTV KKTOKTS.' tlio said Court sliall assuiiic sucli fact to Itc as toiuMl liv tli iiirv, Provision K of 2\ ;t Will. -I, c. 92, w to ai>- ixals to apply 111 HuilK in Court of Adinirulty under tblK Act. W'll. And lie it enacted, tiiat everv jiersoii who, if tlii^ Act had not been passed, niiu-Jit have ajijiealed and made suit to Her Ma.jestv in Council ai^ainst any proceedinir. doeroe, or sentence of the said lliu'h Court of Adniiraltv under or hv virtue of an Act j»assed in the third year of the rcisfn of his late Majesty, intituled, "An Ai-t for transferriiii: tlie po\v(!rs of the IIii:;li Court of Delcifates, hoth in Keclesi- astical aiKJ Maritime causes, to His Ma.jesty in Council," may in like manner ajipeal and make suits to Her Majt-sty in (\)uncil a_<:;ainst the proceedintjs, decrees and sent(Mices of the said Court in all suits instituted and jiroeeedinifs had in the same hy virtue of the provisions of this Act, and thai all tlie provisions of tht' said hist-mentioned Act shall apply to all appeals and suits airainst the iiroceediuirs, decrees and sentences of the said Court in suits instituted and procecd- 3.1 4 will. J, iiiijs had hv virtue of the provisions of this Act; and sucli <•. 11, to apply in ' ■ 'i •. i u . i i • • xi t iame lu miner. a[>peais aiul suits Shall l)e [)rt)cee(le(l m m the manner and form ]>rovided by an Act passed in the fourth year of the reii^n of his late Majesty, intituled "An Act for tlie better administration of justic^e in His Majestv's I'rivv Council;"' and all the jirovisions of the said last-mentioned Act ivlat- ins;' to appeals and suits from the Hiii;h Court of Admiralty shall be apjdii'd to ap])eals and suits from the said (^»urt in suits instituted and proeeedin_i!;s had by virtue of the in'o- visions of this Act; ]»rovided always, that in any such appeal the notes of evidence taken as hereinbefore provided by or under the direction of the judixe of the said llii:ii Court of Admiralty shall be certified by the said judge to Her Majesty in Council, and shall be admitted to prove the oral evidence u'iven in the said Court of Admiralty, and that no evidence shall be admitted on such appeal to ctni- tradict the notes of evidence so taken and certified as atoi'c- said, but this ]iroviso shall not enure to jirevent the judicial committee of the Privy Council from directinu; witnesses to be examined and re-examiiu'd upon such tacts as to tlir committee shall seem tit, in the manner directed bv the la-t- recited Act. Certified notes of evidence taken nuiT lie admitted on appeal. .S it 4 VrCT. CAW flo. 321 11(1 Itv tlu. ■ Win. Ami 1)«' it t'liacti'd, that it hIiiiH Ik- lawful tor the Pow.rri.r imine MM n\ nil' H .,,,., . 1 • 1 . ..f A.liiiliiilly to imlu^t' of the said lli^'h Court ot Adimraltv troiii tiiiu' toi""iKruu-!i(.f , , ■ . . <'ourt. tiiiK' to niako siwh rulrs, ordi-rs and rcifulations ri's|ie('tiii^i; the iiraotico aiul inodc of in-oct'i'diiii; of the said Court, aiul tlu' coiKhict and dutii's of the otHci-rs and practitionors thornin, as to him shall seem tit, and from time to time to rt]ital or alter hucIi rules, orders or rei^uhitions : provided always, that no such rules, orcK-rs or rt'irulations shall i)e of aiiv foree or effect until the same shall have heeii approved liv Her Maiestv in Couneil. XIX. And he it declared and enacted, that no action shall i;i«>t< of his jurisdiction as judife of the said C-ourt which hy law apjiertain to the judu;es of Ilei' Majesty's Superior Courts of Common Law in the exercise of their several jurisdictions. X X. And he it enacted, that the keeiier for tlic time heinointed hy the judge of the said Court of Admiralty, upon any in- '[uest taken within or upon the high seas adjacent to the Kjiinty or other jurisdiction to whicdi such jail or prison k'longs; and every keeper of any jail or i)rison who shall iit'use to receive into his custody any person so committed, "!• wilfully or carelessly suffer such ])erson to escape and go at large without lawful warrant, shall he liahle to the like I'l'iialties and consequences as if such [>erson had heen com- mitted to liis custodv l)v anv other lawful authority. XXr. And he it enacted, that it shall l)e lawful for tlie Pnnonirs in jiiuge of the said High C ourt ot Admiralty to order the dis- bu lUsfiiarged. iliarge of any person who shall he in custody for contempt of the said Court, for any cause other than for n()n-])ayment uf money, on such conditions as to the judge shall seem Just; j)rovided always, that the order for such discharge V >f' 822 VI('K-AI>MII{A[/rV KKl'OliTS. Jurliillcliiin to try i|ui'NiiciiiH Ootici'riii'iK IhiiiIv 111' war. rtliiill iHtt 1k' «li'('iii('(| to liiivc |iiirirc(l till' (triiriiml <<»iitt'iiiiit ill ciisc till' coiiditioiis oil wh'u'li wiicli onlfi" sliull hu iiiadi' lu' not t'liltilled. XXIl. And !)(' it ciincti'd, tliiit tlic said Iliirli Coiiiti.t Ad'iiiriiltv shiill liavT jufisdiction to decide all matters ami <|iii'Htioiis coiiccrMini; liooty of war, or tin- dirttcilmtion tlicir- of, which it shall please Iler Maji'sty, iier heirs and siieces. rtorf, hy the advice ot her and their privy eoiiiicil, to rcii r to the jiidirnieiit of the said Court; and in all matters so referred tlus Court shall proceed as in cases ot prize ot' war. and tlie jii(li;inent of tlm Court therein shall he hindin.: upon all partii's conceriu'd. juriK.iidioiKif Will. Provided alwavs, and he it enacted, that notliin.; ('oiirls (if liiw . • 1 1 II 1 "^ 1 1 ■ II n(i(<|iiii)- II..I herein contanied shall ho deemed to itreclude anv ot Iler Ahijesty's (/Oiirts of Law or Ecpiity now havini; jurisdictioi' over tlie several suhjeet matters and causes ot action herein- hefore mentioned from eontinuini; to exercise stich jurisdic- tion as fully as it this Act liad not heen passe(h XX rV. And he it enacted, that this Act may he repealcil or amejided hy any Act to he passed in this session ot I'ar- liament. takvn iiwiiv Act niny b(^ aiuundtid tliiH sussiuii. CANADA— TIIK ro.VSTlTlTK >N. KTC. :523 CANADA— LAWS I{i:i.ATIN'( J TO TlIK COXSTITr. TloN, KTC. An Act tor iiiiikiii!:: iiioi'c I'tU'ctuiil in'ovislon t'ni' tlic i^ov- 1 1 1 ..•., iii, i'liitiu'iit of tlic ri-nviiiri- of «^iu'Iifc, ill Xdftli ,\iii(ri(ii. — "' (I'iissfd ill 1774). An Act to cstiililish a finnl towartls fiirtlicr di'tVavinir tin.' u*. ■. in, cliarLfcs of the administration of jnsticc and sn|i|tort of the ('i\ il (Jovcrnnicnt wifliin the I'rovinct' nl" (^ucImt in ,\nicri(a. — ( I'nsscd in 1774). An Act for rcinovinu; all donlits and aiiiiri'licnsions con-''*""""^ •^ I I I'm, 1> (•(•iniiiu; taxation hv tlii! rarlianuMit of (Jri'at Uiitain, in anv (.i|. CUI' l-J CUI'-II- (if the colonii's, provincis, and plantations in North .Xnu-rica and tho West IikKk's, and for r('|icaliii,ir s(» ninch of an A<'t iiiado in the scviith year of tlu- reiiin of his present Ma_jesty a> imposes adnty on tea imported from (in-at JJritain into any eolony or phmtation in .Vmeriea, or relates thereto. — (1778). An Aft to repeal certain jiarts of an .\ct jiassi'd in the ;'.i| ■';','; nr fourteenth year of His Ma.ji'sty's reitcii, intituled: *'An Act fur makiiii; more etlectual provision for the i^overnment of tlie Province of (^lUihce, in North America;- and to make t'uither provision for tho government of the said province, — (Passed in 1791). An Act for exteiulinii' the jurisdiction of the CourtH of ^jhm.,. tii, •liistice in the Provinces of Lower and Cpper Canada to tho A-iMniiiiK-* , .... , . Willi ill liidi.iu ti'ial and |)unishment ot persons ii'udty ot crimes and otlencesTnrit.jry. within certain parts of North .America adjoininu; to tlu' said provinces. — (Uth August, l.S():5). An Act to maki' tcm[)orary [»rovision for the ifovernment ia j vio.cap.g. of Lower Canada. — (lOth Fehruary, 18o8). An Act to amend an .Vet of the last session of parliament 2 a n \ic. Cap. till' makiiii:; temporary provision for the ii'oveninient of Lnwer Canada. — (17th Auy-ust, 1830). '■•i-'; ■ 'v m 324 VICK-A] )MIR ALTY HEPORTS. 3 A 4 Vi(. Cap. 35. 8 & i Vic. ( ■«. t U'Tgy Itfe^trvt's. " ap. 10 \ 11 Vic. Cap. 71. 11 i<: 12 Vic. Cap. 5G. 15 A It; Vic Cap. 21. 17 A IH Vic Cap. n^. 22 A 2.'! Vic Cap. 10. All Act to re-unite the l*rovinees of Upper and Lower Canada, and tor tlie jrovernnient of Canada. — (23rd July., 1840). An Act to provide for tlie sale of the Cler<;\' Re.'^erves in tlie Province of Caiuida, and for the distribution of the pro- ceeds thereof. — (7th Aui^ust, 1840). An Act to authorize Iler Majesty to assent to a certain bill of the Fjcirislative Council and Assembly of the Prov- ince of Canada for grantintf a civil list to Her Majesty; and t(» repeal certain parts of an Act for re-uniting the I'roviuci's of Upper and Lower Canada, and for the government of Canada. — (22nd July, 1847). An Act to rejteal so much of an Act of the third and fourth years of Her jiresent Majesty, to re-unite the Pro\- inccs of Upper and Lower Canada, and for the government of Canada, as relates to the use of the English language in instruments relating to the Legislative Council and Legisla- tive Assembly of the i'rovince of Canada, — (14th August, 1848). An Act to authorize the Legislature of the Province of Canada to make provisions concerning the Clergv Reserves in that province, and the proceeds thereof — (9th May, 1853). An Act to enijiower the Legislature of Canada to altiT the Constitution of the Legislative Council for that prov- ince, and for other purposes. — (11th August, 1H54). An Act to empower the Legislature of Canada to make laws regulating the appointment of a S[>eaker of the Legis- lative Council. — (8th August, 185!>). 12 A irs Vie. Cap. yo. ADMIRALTY. An Act to provide for the proseeu.tion and trial in llcr Afaiesty's Colonies of offences committed within the juris- diction of the Admiralty. —(1st August, 1840). 1VA(;■((^^', by an Act passed in the eleventh vi'ar of tlic reign of King AVilliam the Third, intituled, "An Act for the more effectual suiijiression of ])iracy," it is enacted that all piracies, felonies, am' i\)l)beries committed on the sea, or CAXADA— THE rOXSTrTUTTOX, ETC. 32o ill any liavoi;, river, civok, or pliioe whore tlir iulniiral or admirals have ])OAVor, authority, or jurisdiction, may \>v oxamincd, CM(|uiri'(l of, tried, heard, and determined, and adjudged in any phiee at sea, or upon the land in any of His Majesty's islands, plantations, colonies, dominions, torts or faetories, to he appointed for that purpose hy the Kinif's Commission, in tiie manner therein directed, and accordini; to the civil law and the method and rides of the Admii'alty; ai\(i whereas, hy an Act passed in the forty-sixth year of the reijj^n of King George the Third, intituled, "An Act for the speedy trial of ott'ences committed in distant parts upon the sea," it is enacted that all treasons, ])iracies, feloiues, rohheries, murders, conspiracies, and other offences of what nature or kind soever committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, nuiy he en([iured of, tried, heard, deiormined, and adjudged, according to the common course of the laws of this realm used for offences committed upon the land within tiiis realm, and not other- wise, in any of Ilis Majesty's islands, plantations, colonies, dominions, forts and factories, under and hy virtue of the King's Commission or Commissions, under tlie Great Seal of Great Britain, to he directed to Commissioners in the manner and with the powers and authorities therein pro- vided. Aik/ W/nirast, it is expedient to nnike further and hetter provisions for the apprehension, custody and trial, in Ilei* Majesty's islands, jdantations, colonies, dominions, forts and faetories, of persons charged with the commission of such offences on the sea, or in any such haven, river, creek, or ])lace as aforesaid — he it therefore einicted hy the Queen's Most Excellent Majesty, hy and with the advice and consent of the lords spiritual and temporal and commons iti this present parliament assemhied, and hy the authority of the same, that if any person within any colony shall he charged with the commission of any treason, piracy, felony, rolthery, murder, conspiracy, or other oft'ence of what nature or kind soever committed upon the sea, or in any such haven, river, creek or place, where the admiral or admirals have power. 1 - •h'lrii- 320 VICE-ADMIRALTY REPORTS. autlioritv, or jurisdiction; or if any person eliarifed witli the foniniission of any sucli offence upon the sea, or in any sucli liavon, river, creek or place, shall he l)rou<;ht for trial to any colony, then, and in every such case, all magistrates, justices of the jieace, pul)lic prosecutors, juries, judges, courts, puhlic ofHcers, and other persons in such colony, shall have and exercise the same jurisdiction and Jiuthori- ties for inquiiing of, trying, hearing, determining, and ad- judging such offences: and they are herel)y respectively authorized, empowered, and required to institute and currv on all such jtroceedings for the hringing of such jierson so chari>:ed as aforesaid to trial, and for and auxiliarv to and consequent u[»on the trial of any such person for such ofl'ence wherewith he mav l)e eharo-ed as aforesaid, as hv the law of such colony would and ought to have heen had and exercised or instituted and carried on l)v them resiteci- tively, if such offence had heen committed and such person had heen charged with having committed the same upon any waters situate within the limits of any such colony, and within the limits of the local jurisdiction of the Courts of criminal justice of such colony. IT. Provided always, and be it enacted, that if any person shall he convicted before anv such Court of any such offence, such person so convicted shall be subject and liable to and shall suffer all such, and iJie same pains, penalties and for- feitures as by any law or laws now in force, persons con- victed of the same respectively would be subject and lial)le to in case such offence had l)een committed, and were inou the sea, or iu any haven, river, creek, or place, where the admiral or admirals have [>ower, authority, or Jurisdiction, sucli offence shall he held for the puri)oses of this act to have heeu wholly committed uj^ou the sea. IV. Xot to affect jurisdiction of Supremo Court of Xow South Wales or A"au Diemeu's Laud, !» (Jeo. IV., cap. 88. V. And he it enacted that for the purposes of this Act the word "colony" shall mean any island, plantation, colony, ilominion, fort, or factory of Her Majesty, excejit any island within the Fnited King(h)m, and islands of ATau, Guernsey, •Icrsev, Alderucv, and 8ark, and the islands adiaceut thereto respectively, and except also all such parts and i)laces as aro under tlie <2;overument of the East India Company, and the word " Governor " shall mean the officer for the time being aduuuistering the government of any eolouy. Vr. And be it enacted, this Act may be amended or re- jiealed by any Act to be passed during this present session of parliament. An Act to extend provisions for admiralty jurisdiction iu the colonies to Her Majesty's territories iu India. An Act to extend the jurisdiction and improve the prae- tice of the High Court of Achuiralty. — (Passed 17th May, 18- privilei>;es of naturalization (to he enjoyed, etc. within the respective limits of such colonies or possessions respectively) viilid. Sec. 2. — All laws, etc., heretofore made imparting privi- ley Order in Council. Sec. 3. — All persons who, being subjects of the Tiritish Crown, haye been, or shall hereafter be (bily admitted and enrolled as attorneys and solicitors in the Superior Courts of Law and Equity in those of Her Majesty's colonies or de- ]ioiidencies, where the system of jurisprudence is founded on, or assimilated to the common law and [irinci[»les of Equity, as administered in England, and where full seryice, under articles of clerkship to an attorney at law, for the space of liye years at the least, and an examination to test tiie (lualitication of candiilates, are or nniy be required previous to such admission, save only in the case of persons l)reviously admitted as attorneys or solicitors in the Superior Courts of Law or Equity in England, such colonies or de- Itendencies to be from time to time specified in and by Order in Council, as hereinafter provided, shall, and may be adtnitted, and enrolled attorneys in all or any of the Courts of Queen's Bench, Common Pleas and Exche(pier, and other Courts of England, and solicitors in the High Court of Chancery in England, subject as hereinafter provided. Vic. :.;*f§ 330 VICE-ADMIRALTY liKl'()RT8. ><. ■■"-''''..vs' '■:cH 1 ,a Sue. 4. — \() person sliall bo (leoMU'd (juiilified to be ud- Miittt'*! as uttonioy or solicitor under ]trovisioiis of tliis Act. iinloss lie pass exaiiiiiiation as to fitness as hereinafter luo- vided, ])rodiU'e certificate from presidini; Jiidi^e of Sniicrior Court of Common Law in colony, etc., where he was admitttd an attorney, etc., stating amount of stamps paid on his articles of clerkship and admission, and shall further make affidavit in manner provided hy order of judges, etc., that lie is resident within jurisdiction of Superior Courts of Law mikI Fi(|uity in England, and that he has ceased to i)ractice for twelve months at least in any Colonial Court of Law. Sec. 5. — It shall he lawful for the judges of Queen's i^ench. Common I'leas, and Exche([uer, or any three of them, when any person shall seek admission as attonuy only, under provisions of this Act, and the Master of the Ivolls to iiupiire into the qualification of such person, and a[>point such persons as examiners, as they may think [•roper, etc., and if found duly (pndified, cause him to l)c admitted. Sec. t). — As to stamp duties on admissions, same as those re(iuired for admission in England, together with siu'h further stamp as shall, with the amount of stamps paid on articles of clerkship and admission in the colony be eqnal in amount to the sum payable on articles of clerkship) in England. Sec. 7. — Iler >[ajesty may, from time to time, by Order in Council, direct this Act to come into oiteration as to any one or more of Her Majesty's colonies or dependencies, and thereupon, but not otherwise, the provisions of this Act shall apply to persons duly admitted as .ittorneys and solici- tors in the Superior Courts of Law and Equity in sneli colonies or dependencies, but no such Order in Council shall be made in respect of any colon}', except u})on api)li- cation made by the governor or person exercising the functions of governor of such colony or dependency, and until it shall be shewn to the satisfaction of Her Majesty's ]»rincipal Secretary of State for the Colonies that the system ot jurisprudence, as administered in such colony or de- CAXADA — THE COXSTITrTTOX, KTC. ;381 ptudcncy, 1111(1 the (lualiticiitioii tor adiiiission as an attorney or solicitor in the Superior Courts of Law and Kijuity in sueh (•olony or dependeney, answer to, and i'ultil the conditions specitied in section 'i, hereinbefore contained, and also that the attorneys or solicitors of the SujK'rior Courts of Law or Kquity in Knu'land are admitted as attorneys and solicitors ill the Superior Courts of Law and lv|uity of such colony or (k'liendency, on production ot their certiticatt's of admission ill the English Courts, without service or examination in tin' colony or dei)endencv. IJKTTISII COLrMUIA. ''An Act to provide tor the <;overnment of IJritish Colum-'-'i •<; 22 vie. ' Cap 99 Ilia. ■■— (Passed 2nd Aut^ust, ISoS). BlUTISII l>r()KTir AMKUrCA ACT 1S07. Title: "Aii Act for the Union of Canada, Nova Scotia, no a 31 vic. and Xew IJrunswick, and the li.'overnment thereof: and for jiurposes connected therewith." — (Passed 2!tth ^larch, 1807). BRITISTI SIIIPI'IX'^G AXD X^AVKJATTOX^ "An Act to amend the laws in force for the encouraire-);-'* ),^'^'''=- ^ . . '^ t ap. 2'J. iiient ot British Shipping and Xavigation." — (Passed 26th June, 1849). COIX— OFFEXCKS AG AIXST., "An Act for the punishment of otfences in the colonics in u>& n vic. relation to the coin." — (4tli August, ISoS). Sec. 1.— 2 & 3 Wm. IV.— As amended hy 1 Vic. cap. 90, extended to the colonics. Sec. 2. — Puinshment for importing counterfeit coin into the colonies, liable to be transported for lite, or for any term not exceeding seven y":irs, or be inntrisoned for any term not exceeding four years. Sec. 8. — Xot to apply in any colony to any otfence^for punishment whereof local provision is already made. Sec. 4. — Power to Local Legislature to vary provisions of this Act (may alter or repeal — all, or any). 332 YICE-ADMrUALTV KKI'OKTS. 28 A 29 Vic. C«p. 63. COLONIAL LAWS— DOrirrs AS TO VALIDITY (>F. "An Act to reiiKn-c dotilits as to the validity of Colonial Laws."— (2!>tli .luiic, 1S6.')). Sec. 1. — Dotinitions. " Colony*' — shall iiioludo all Her Majesty's po.ssessioiis wherein there shall exist a leiiislatnre, ete. " Lciiislature " and " Colonial Leiiislatnre " shall sevenilh si<^nity the anthority, other than tlie Inii>erial I'arlianu-nt up ller Majesty in Conncil, eonii>etent to nnike laws tor anv colony. " Uepresentative Leirislatnre " shall sii;nity any Coloniii! Legislature, whicii shall coni})rise a legislative hody, of whidi one-half are elected hy inhabitants of tlie country. " Colonial Law " shall include laws nnide for any colony. either hy tlie Legislature or by Her Majesty in Council. Act of Parliament to extend to colony, when made aiijili- oable to such coh^iy by express words or necessary intoinl- ment of any Act of Parliament. " Governor." — OtHcer lawfully administering the govorn- ment. "Letters Patent" shall mean Letters Patent under (iivat Seal of Ignited Kingdom of Great Britain and Ireland. Sec. 2. — Colonial Law void for repugnancy, when in any respect repugnant to the provisions of an Act of Parlianiont extending to the colony to which law may relate, or repuir- nant to any order or regulation made under authority ot such Act of Parliament, or having in the colony the foni' or effect of such Act, shall be read, subject to such Act. order or regulation, and shall, to the extent of such repui:- nancy, but not otherwise, be and remain ab.solutely void and inoperative. Sec. 3. — Colonial Law not void for repugnancy to the law of England, unless repugnant to the provisions of some ^uoli Act of Parliament, order or regulation, as aforesaid. Sec. 4. — Colonial Law not void for inconsistency with in- structions with reference to such law, or the subject thereof. CAXA I )A — THE ('OXSTITl'TK )X, KTC. 333 whi.'li iimv have ht'oii triven to siu'li irt)V(.'ni(»r hy or on be- half of llcr Miijt'sty, etc. Sec. ;"). — Coloiiiivl Lotfisliiturc iiiiiy ostaldish Courts of Law, and ri'prosentatu'o l('ii;islature niav alter constitution — provided sueh laws, respecting!; constitution, passed in man- ner and form as required by any Act of Parliament — Letters Patent — Order in Council for the time being in force in the Slid colony. ':>vc. ♦». — The certificate of the clerk, or other proper otHcer, of legislative body in any colony, to the effect that e document to which it is attached, is a true copy of any th colonial law assented to by the governor of such colony, or iif anv bill reserved for the sii;nitication of Jler Maiestv's liluusure, by the sidd governor, shall be prliiiu farir evidence that the docnmeiit so certified is a true copy of such law or hill, and as the case may be, ihat such law has been duly and ]iroperly jiassed and assented to, or that such bill lias hiT'ii duly and pro^ierly [)assed and presented to the gover- nor; and any proclanuition jiurporting to be jiublished by authority of the governor in any newspajier in the colony, to wliich such law or bill shall relate, and siginfying Ili-r Majesty's disallowancG of any such colonial law, or Her \[iijcstv's assent to anv such reserved bill as aforesaid, shall 1 >i im a l\ii-ic evidence of such disallowance or assent. Sec, 7. — Certain enactments of Icii'ij^latnre of f>outh Aus tralia to be valid. DKBTS TX COLOXTKS. '•An Act for the more easv recoverv of debts in Hi SSGeo. II, Cap. 7. Majesty's I'lantations and Colonies in America." — (Passed ill 1732). ^^'llereas, ITis Majesty's sultjects trading to the liritish plantations in America lie under great difficulties for want of more easy methods of proving, recovering, and levying of debts (hie to tliem than are now used in some of the said jila iitation.s : and whereas it will tend verv much to tlie re- trieving of the credit formerly given by the trading subjects of (ireat Britain to the natives and inhal)itants of the said 8;J4 VK'K-ADMIKAI/rV KKroKTS. }»laiitatioiis, and to tlu' advaiiiciiii,^ (»f the tradr of this ki 111 (lotil tliiti K'l-, It sucli iiu'oiivi'tiU'in'cs were rciiuM linl iiia\ It tlicrcroi'c pK-asi' ^'olIl• Majt'sty that it iiiav Ik; riiactcd, niid he it I'liacted l>y the ICiiii^'s Most Kxci'lli'llt Muji'sty, hy iiml with the aarliainoiit assund»K(l. and hy the anthority of thi' same, that iVoni and altci- thr twenty-ninth (hiy of Si'|tt('iidK'r, which shall he in the yrar of onr Lord oni' thonsand si-vi'n hnndred and thii'ty-twn. in any action oi' snit tluMi d('|icndinii', or thcrcaftci' |m he hrouifht in any C'onrt of liaw or Kipiity in any ot tin said plantations, for oi- relatin«; to any del)t or a<'C()mit wherein any person residing in (Ireat l>ritain shall he :i ]»arty, it shall and nniy he lawfid to and for the plaiii- titt' or defendant, and also to and for any witness to \n- oxaminecl or made nse ol" in sneh action or suit \'istrate, which oath and solemn atHrmation every such mayor and chief ma^'istrate shall he. and is herehy authorized and empowered to administci': and everv atHdavit or atHrmation so niado, certiHed aihl transmitted shall, in all such actions and suits, he allowed to he ot the same force and etl^ect as if the [person or persons makiui;' the same upon oath or solemn atHrmation, as afore- said, had ai>pearcd, and sworn or atHrmed the matters c( Ill- tamed m sucli athdavit or athrmation, nra. rocc, m open Court, or upon a commission issued for the examination of witnesses of any party in such action or suit respectively: pi ovided that in everv such atHdavit and atHrmation thei Mlc shall he expressed the addition of the jiarty makiny atHdavit or atHrmation, and the particular place of his o 1 ler a hodi. CANADA— T!IK CoNSTITrTloX, KTC. 3:15 Sec '2. — Aiitl lie it I'lirtlicr cimctcd Itv tlic aiitlioritv iit'nro- siiiil, 'liiit ill nil suits now (li'|n'iins, colonies, or dependencies al)road, heiiiu" within and part of His Majesty's dominions, for or relatini; to any debt or account, etc. Declaration may be substituted fur oaths and alHdavits reipiirod by o Geo. II., Ca[). 7 (see page 38;:]), and :A (Jeo. III., Caj.. 1"). (Memo. — 54 (ieo. III., Cap. 15, Sec. 1, jtrovides that in anv suit hrouu:ht in anv Court of Law or I'](iuitv in Xew Soiitb AV^ales, where one of the parties is in Kngland, the plaintitl" or defendant, or any witne^s to be examined and made use of in sucli action or suit, to verity or prove by affidavit, or if a (Quaker, by solemn affirmation, such matter CANADA — TIIH (OXSTITrTloX, KTC. :l:{7 col or tliitii; iM'tni'c till' tliict' inii;;istratt' or mayoi- of city, ftc, ill (irt'ut Mi'itiiiii, aiul ccrtiluMl tiiid traiisinitt('iliility in sudi Courts of the evidenci; of such persons are not, or would not he repui^nant to the Law of Kngland,and therefore null and void ; and it is expedient that such donhts sliould he removed : Be it therefore enacted by the Queen's Most Kxcellent Majesty, hy and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assendiled, and hy the authority of the same, that no law or ordinance made, or to he made, by the Icu'islatureof any British colony, for the admission of the evi- dence of any such peisons as aforesaid, in any Court, or liefore any mat^istrate within any such colony, shall be, or be ileeined to have been, null and void, or invalid l)v reason of « .V 7 vie. C'«p. •h any rejiui^nanc}', or supposed repugnancy, oi any such en- actment to the law of Kngland ; but that every law or ordinance made, or to be made, by any such legislature, as aforesaid, for the admission before anv such Court or t ft: ■'.ly w 338 VIC IvADM IKALT Y KEPOliTS. h I 18 A 19'Vif. Cap. 3. 25 A 2() Vic. Cap. 20. 30 A 31 Vic. Cap. 16. 28A 29 Vic. Cap. 64. nisiu;istrato, of the ovidoiiee of any sueli persons as aforesaid. on any conditions thereby imposed, shaH liave svu'li and tlif same effect, and shall l)e suhject to the confirmation or di- allowance of Iler Majesty, in such and the same manner a- anv other law or ordinance enacted for anv other i>nri»()si' hv any such colonial legislature. Sec. 2. — And he it enacted, that this Act may he ameiKhil or repealed hy any Act to ho passed in the present session of parliament. FISIIEIUES COXVEXTIOX ANT) KECI1»R()C1TV TREATY WITH UNITED STATES. "An Act to carry into effect a treaty between Iler Majesty and the United States of America." — (I'Jth February, IS.J.J). HABEAS COKPUS. "Act respecting the issue of writs of Habeas Corpus out of England into Her Majesty's possessions abroad." — (ItJtli May, 1862). Sec. 1. — Writ not to issue out of England into any colony or foreign dominion of the Crown, etc., having a Court with authority to grant such writ. Sec. 2. — Not to affect right of appeal to Her Majesty in Council now by law existing. INT EKCO L( )NT AL R A T L WAY. "An Act for authorizing a guarantee of interest on a loan to be raised bv Canada towards the construction of a rail- way connecting Quebec and Halifax." — (Passed 12th Aiiril. 1867). VALHHTY OF MARRIAGES. "An Act to remove doubts respecting the validity of cer- tain marriages contracted in Her Majesty })OssessiiMis abroad."— {29th June, IStio). Sec. 1. — Colonial laws establishing validity of marriages to have effect throughout Her Majesty's dominions. Sec. 2. — Not to give effect to marriages unless parties aif competent to contract marriage. CANADA— TTIK CoXSTITUTIOX, ETC :«0 2 amended 3nt session MKHCHAXT SlirPl'lXc; AXI) MKUniAXT SKA^rEX. "All Act to amend and eonsolidate the Acts ri'latinii' to r ,<; ^ vio. cap, iiiercliant seanieii ; and for kecpiiii-- u reijister of seamen." —(Passed 5th September, 1«44). "An Act to amend and consoli(hite the Acts relatinu' to crcliant slii.j»inn<;." — (10th Auy:nst, 18')4). Ill 17 A Cap. H Vic. 11)4. An Act to reiteal certain Acts and narts of Acts relatinu:iT a is vie. Cup to niercliant shiiiiiintf, anil to continue certain j>rovisos ii the said Acts.""— (11th An^irnst, 1854). Colonial Lieal such dues, and from the time specified in such order for the commencement ot the dues thereby tixed, increased, or y address to the Crown, or by an Act or 340 VICE- ADMIRALTY REPORTS. ) Ai;;??ti? ordinance duly passed, siii;nilied its opinion that the same ought to be levied in such colony. Sec. 4. — Dues to be collected in British possessions abroad by such person as the governor may appoint for the pur- l^ose, and in manner, as far as circumstarices ^vill permit, as directed in Merchant Shipping Act, 1854, or as legislative authority in such possession may direct. Sec. 5. — Dues to be paid over toller Majesty's Paymaster General. Sec. 6. — Dues to be applied to expensesof lighthouse, etc., for which they arc levied. Sec. 7. — I'ower to Board of Trade to borrow money on security of dues. Sec. 8. — Accounts for each lighthouse, etc., in Britisii pos- sessions abroad to be kept and laid before Imperial Parlia- ment, and to be audited. From section nine to fifteen inclusive, refer to " Registry of Ships." From sixteen to eighteen inclusive, " Masters and Seamen."' From nineteen to twent}' inclusive, " Casualty and Sal- vage." ]LMaipro- Sec. 21. — If any pcrsoM being a British subject charged tion, iii case of witli liaviug Committed anv crime or otfence on borrd aiiv offences on "- i i • i ' • ,• • boaH ship, etc. Britisli ship ou tlie iiigh seas, or m any toreign port or harbor, or if any person not being a British subject charged with having committed any crime or offence on board any British ship on the high seas, is found within the juris- diction of any Court of Justice in Her Majesty's dominions, which would have had cognizance of such crime or offence if committed within the limits of its ordinary jurisdiction, such Court shall have jurisdiction to hear and try the case as if such crime or offence had been committed within such limits; })rovided that nothing contained in this section shall be construed to alter or interfere with the Act of the thir- teenth year of her present Majesty, chapter ninety-six. Sections 22 and 23. — "As to Lascars, and contracsts made with natives in India." ' nionev on CAXADA— THE COXSTITUTrOX, ETC. 341 Sec. 24. — Xotliiiii>; herein contained shall be deemed to repeal or affect any [irovisions contained in the 2.')th, 26th, •27th, 28th, 2!>th, 30th, 31st and 34th sections of the Act of the fonrtli year of King (jrcorge the Fourth, ''ha|)ter 80, or in the IGth section of the Act ot the 18th year of her pres- ciit ]\hijesty, chapter 120. Memo. — Acts above referred to. 4 Geo. IV., Cap. 80. — "An Act to consolidate and amend the several laws now in force with res[)ect to trade from and to places within the limits of the charter of the East India Company, and to make farther provisions with respecr to such trade, and to ameiul an Act of the present session of jiiu'liament for the registering of vessels, so far as it relates to vessels registered in India." — (Passed 18th July, 1823). liefers wholly to India. 17 and 18 Vic, Cap. 120. Title : "An Act to repeal cer- tain Acts and parts of Acts relating to merchant shipping, and to continue certain provisos in the said Acts.'" — (Passed nth August, 1854). Sec. 16. — If native of Asia, Africa, or of any of the islands of the South Sea or Paciiic (^cean, or of anv other countrv, not having any consul in the United Kingdom, is brought to the United Kingdom in any ship, British or foreign, and is left there in distress, etc., master, owner or consignee to incur penalty of not more than £30, unless it can be shown he left without consent, etc. Title: "An Act to amend the Merchant Shipping Act, •.>,=;* 26 vio. 18o4"; "The Merchant Shii ping Act Amendment Act, ^''"'' *'^- 18:5".; and the "Customs Consolidation Act, 1853.'"— (Passed 29th July, 1862). NAVAL DEFENCE OF THE COLONIES. "An Act to make better provision for the naval defence28 a 29 vie. of the colonies."— (7th April, 1865). ^'"'' "' Short Title : " The Colonial Naval Defence Act, 1865." Sec. 3. — Empowers legislatures of colonies to provide vessels and raise men and commission officers, etc. .-; r 342 VICE-ADMIRALTY RKPORTS. fi: Sec. 4. — Volunteers to form part of Royal Naval Reserve. Sec. .'). — l*ower to Admiralty to issue special commissions. Sec. 6. — Her Majesty may, from time to ime, as occasion requires, authorize Admiralty to accept any otl'er for tlic time beiuij made bv the ijovernor of a colouv, to vlacc at |[er ^fajesty's disposal colonial vessels with men and ofHccrs, etc. Vessels for time being, and men and officers, deemed of tlie Royal Xavy. Sec. 7. — Authorized to accejit services of volunteers and officers in navy. Sec. 10. — Nothing in this Act to affi'ct jtowers vested in colonies. OFFENDERS ESCAPING FROM COLONIES. 4 ;'.4. vi(. Cap. "An Act for the appreliension of certain offenders." — (28th July, 1843), Whereas, it is expedient to make more effi'ctual provision for the a[>})rehension and trial of offenders against the laws, who may be in other parts of Her Majesty's dominions than those in which their offimces were committed : Be it enacted by the Queen's Most Excellent Majesty, by and Avith 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 from and after the passing of this Act, if any person charged with having committed any offence such as is heieinafter mentioned, against the omndors i)i the lii^vs of auv }»art of Iler Majesty's dominions not being part ing'in'to fhe"'" of the ["uitcd Kiugdom of Great Britain and Ireland, and Kingdom may agaiust wliom a Warrant shaf have been issued for such be thore appre- V,. ■, i • i i" i xi -^ ^ • i.i bended. ofleuce, bv auv pcrsou liaving lawful authority to issue the same within that part of Iler Majesty's dominions where such offence shall have l)een committed, shall l)e in any place within the said Ignited Kingdom, it shall be lawful in Great Britain for one of Her Majesty's principal Secretaries of State, and in Ireland, for the Chief Secretary of the Lord Lieutenant of Ireland, to endorse his name on such warrant, "vhich warrant so endorsed shall be a sufficient authority to the person or persons bringing such warrant, and to all CANADA — TIIK COXSTITrTIOX, KTC. 343 uiteers mid ]iersons to whom such warrant was originally (liroctcd, and also to all ('onstal)k'S and other itcace otticors in that i)art of tlir L^nitc'd Kingdom whore the said warrant shall he so en- ilorsed, to execute the said warrant, hy apitrehending the jn'rson against whom such warrant is directed, and to con- vey the said person hefore a justice of the jieace for the county or other Jurisdiction in which tlie supposed offender shall he appreliended, or in Scotland, either hefore such justice of the peace or hetorc the sheritf "s deputy or suh- stitute. Sec. 2. — And to remedy the like failure of iustice, hv the ''>"'"i'.i""^'"'"- escape of persons charu'ed with havintir committed offences ;"?'^"i','','«'."'° i i ~ <^ the Culoiut'S. into those ]>arts of Tier Majesty's dominions which do not form part of the said Tnited Kingdom: Be it ena^-ted, that from and after tlie passing of this Act, if any person charged with having committed any offence, such as is hereinafter mentioned, in any i)art of Tier Majesty's dominions, whether or not within the said United Kingdom, and against whom a warrant shall he issued hy any person or persons having lawful authority to issue the same, shall he in any other part of ITer Majesty's dominions not forming part of the said United Kiiigdom, it shall he lawful for the (diief justice or any other judge of Her Majesty's Superior Court of Law within that other part of Her Majesty's dominions where siu'li person shall he, to endorse his name on such warrant, which warrant so endorsed shall he a sufficient authority to tlie person or persons hringing such warrant, and also to all persons to whom such warrant was originally directed, and also to all peace officers of the place where the warrant shall Ite so endorsed, to execute the same within the jurisdiction of the person by whom it shall he so endorsed, by a[t[)re- lieuding the person against whom such warrant is directed, and to conve\' him before a magistrate or other j)erson hav- ing authority to examine and commit offenders for trial in that part of Her Majesty's dominions. Sec. 3.— And he it enacted, that it shall be lawful for any j;j;j;';;;fi^[J\"jy "^ iH'rson duly authorized to examine and commit offenders i;|!'j,""/^',5a^^'j^° for trial, before whom any such supposed offender shall be {iJe otl"ifcJ'wM* L'omuiitted. ;- •■''1 - ,^f 344 VICE- ADMIH ALT V KKl'OliTS. l)rou<2;]it as aforesaid, upon such evidence of criminality as would justify his coinniittal if the ottence had heen com- mitted in that part of ITer Afajesty's dominions, to coimnit such supposed offender to prison, there to remain until in- can he sent hack, in manner hereinafter mentioned, to that l>art of Her Majesty's dominions in which he is charii'cd inf.irmaiion of with liaviuij^ Committed such offence : and immediately upnn Committal to be , .', i /• i • ,< .' .\ o • •.- givtn. tlie committal of sucli person, mfornuition tliercot m wntun: under the hand of the committing magistrate, accompanied hy a copv of the said warrant, shall he given, in (Treat Britain, to one of Ker Majesty's principal Secretaries of State, and in Ireland, to the Chief Secretary of the Lord Lieutenant, and in aiiy other part of Iler Majesty's domin- ions, to the Governor or acting Governor. Copies of del), isi- Scc. 4. — Providcd alwavs, and he it enacted, that in everv tions may be _ • ' ^ _ _ _ _ • given asevi- sucli casc couics of tlic depositions ui>on which the oriffiiial deuce. ill r> warrant was granted, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party ])rodiu;ing them to he true copies of tlic original depositions, may he received in evidence of t'lic crimiiudity of the person so apprehended. oiiendersiippie- Scc. 0. — Alul hc it cuactcd, thot it shall he lawful, in Great sent' to th^piiifc Britain, for any one of Iler Majesty's princiiial Secretaries ofiencewas of State, and in Ireland, for the Chief Secretary of the Lord committed. . . /. tt a r • ? i • Jjieutenant, and in any other part of Her Majesty s domin- ions, for the Goveriu)r or acting Governor, by warrant under his hand and seal, to order any person who shall have been so apprehended and committed to jail to be delivered into the custody of some person or persons, to be named in the said warrant, for the pur[iose of being conveyed into that part of Iler Majesty's dominions in which he is charged with having committed the offence, and being delivered into the custody of the proper authorities, there to be dealt with in due course of law, as if Vie had been there apprehended, and to order that the person so committed to jail be so con- veyed accordingly; and if the said person, after lie shall have been so apprehended, shall escai)e out of any custody to which he shall have been committed as aforesaid, it shall CANADA — THK COXSTITUTIOX, KTC. :]4o 1)0 lawful to retake such person in the same nianiu'r as any person aecnsed of anv crime against the laws of that part of Her Majesty's dominions may he retaken u[»on an escape. 8ec. 6. — And l»e it enacted, that where any person who if imu s.-m 1 11 1 1 • 1 • M 1 1 • "^ 4 111 williiTi two shall have neen comnntted to jail under this Act shall notm-miis an.r 1 ,, , iiiAf- i»' which he shall have heen so (jommitted to jail within two calendar months after such committal, over and above the time actually reciuired to convey the prisoner trom the jail to which he was committed by the readiest way out of that ])art of Her Majesty's dominions, it shall he lawful for any of Her Afajesty's judges in that ]>art of Ifer ^[ajesty's dominions in which such supposed oftender shall he in cus- tody, upon application made to him or them hy or on behalf of the person so committed, and upon proof made to him or them that reasonable notice of the intention to make such aiti>lication has been given to one of Her Majesty's principal Secretaries of State in Great Britain, or in Ireland to the Chief Secretarv of the ]jord Lieutenant of Ireland, or to the (Tovernor or acting Governor in any other part of Her Majesty's dominions, to order the person so committed to be discharged out of custody, unless sufficient cause shall be shewn to such judge or judges why such discharge ought not to l)e ordered. Sec. 7. — And be it enacted, that in case any person ap[)re- pprs.msi.i)i)n>- liended under this Act shall not be indicted for the ott'encei',l',"i,.t..u'w'i'thiM tor which he shall have been so ai>prehended within thenotnln'viri.'a ' period of six calendar months after his arrival in that i»art imVk/'" ' of Iler Majesty's dominions in which he is charged to have committed the oltence, or, if upon his trial he shall be ac- quitted, it shall be lawful in Great Uritain for one of Her Majesty's princii»al Secretaries of State, and in Ireland for the Chief Secretarv of the Lord Lieutenant of Ireland, and for the (lovernor or acting (TOvernor in any other part of Iler Majesty's dominions, if he shall think fit, u[)on the re(piest of the ])erson so apprehended, to cause such person to be sent back, free of cost to such person, and with as little delay as possible, to that part of Her Majesty's domin- ions in which he shall have been so apprehended. t n / ff g^ PM VICE-ADMIKALTY KKI'OHTS. t% .\\: rxS'li'oin' 8o(\ H.— And be it onac+od, that tlie Court hvi'om which .'iIts'iI.'uiu"'"' •'".>' l»«-'rs()n aitproheiidod uiidc'r tliis Act shall ho prosecuted Kinl,'cll)in. <>•' trieealed l>y any Act to he i>assed in tliis session of' liarlianient. J]4H VRlvADMIkALTV KKl'oKTS. ;i:i Short title. Interpret iitlon of teriiis. C'oinraem'e- meiit of Act. As to claims for building, equi|)|iiiig, or repairing of ships. As to claims for necessaries. 24 VKT. CAP. 10. Ad.miualtv Coi!HT AcT, l^^Hl. An Act li> i'j'U'iiil the Jurisdiction and im/n'ofi: t/ic Practiir nf fhf JHyh Court of Admindtt/. 17th May, isr.l. WiiKUKAS it is oxpt'diont to extend tho jurisdiction imd improve the practiee of tho llirt in Knifland or Wales in anv ship, for damai;e done to the i^oods, or anv part thereof, hy the neu'liifence or misconduct of or for any lireach of duty or hreaeh of contract on the ])art of the owner, muster, or cri'W of the ship, unless it is shown to the satisfaction >f the (/onrt that at the time of the institu- tion of the i'ui'r.e any owner or part-owner of the ship is domiciled in Kui^land or Wales; provided always, that if in ;niy such cause tlu' ]»laintift do not recover twenty ]»ounds, he shall not he entitled to any costs, t'hart;es, or expenses in- •iwred hy him therein, unless the Judtfe shall eertity that tl le cause was a fit one to he tried in the said Coui-t. o claiin.s for (I'liiiBgc liy any slii:i. 7. The Tliii-h Court of Admiraltv shall have iurisdietion •)'<• ovci- any claim for damage (h)ne hy any ship. S. The ]Iii;h Court of Admiraltv shall have jurisdiction to niKhCourtof ,.,„'. . . , ■ , Admiralty to decide all (luestions arismu; hetween the co-owners, or anvi.t-*''!'' 'i ues- tioiis a.s to etc . 01 d" them, touchinjir the ownersliii», iiossef^sion, employment, ""'VT"'''! md earniiii^s of any ship n>i(istered at any [tort in Englaml If Wales, ov anv share thereof, and mav settle all accounts itstandiui!; and unsettled l>etween the parties in relation thereto, and may direct the said ship or any share thereof to be sold, and may make sucli order in ihe premises us to it shall seem tit. (>. All the provisions of " The Men-hunt 8hipi)inoever the t ,'rvices may have been rendered, and from any foreign ship or bout, whore the services huve been rendered cither wholly or in part in British waters. 10. The Iligb Court of Admiralty shall have jurisdiction as to claims for wages ami for (lisTiurseiiii'iits liv mastci- of a salvage jf life. iver unv claim bv u seaman of anv shii> for wau'es earned di'lfi >y him on board the ship, whetlicr the same be due under shii m J'. s:.o VICK-ADMIK. rv KKI'OIJTS. a s|u'ciiil (•(tiifrntt nr dtlicrwist', !it\r 51IIV slii|» t'oi' watfcs I'linn'cl l»y liiiii , and tor dislMirsiMMciits iiiacU- lt_v liiiii on accoimt nt' tlu' slii|»: iirovidcd alwavs, tliat if in any such cause tin plaiiititrdd not i-ccnvci' lil'tv pounds, he shall not he entitled to any costs, (diai'ij'es, (»r expenses incurred hy him therein, uidess the judii'e shall certify thnt tlio cause was n tit one i(. he tried in the said Court n. The llii^h Court <»t Admiralty shall have Jurisdiction iiiuriKiiK<'«';x- over aiiv claim in respect ol" anv morty-auv duly reuistereij accordini; to the provisions of " Tlu^ Mi-rchant Shipping Act, 1H.')4," wlu'thcr tin- ship or the proceeds tiieri'of l.i 8 A I Vict. c. Its. in ri't^anl I trtuli'il III Ciiiirt of .\* Vi(t. c. 10 J. pxlcndi'd to ("mirl iif .Vdiiil nlty. 1, ritisli slnp, or any share therein, as an ('(Miferred upon tlu' Niirh Court of Chanci'iv in Knirland hv the tii'nd, t!:5rd, (;4th and (!')th sections of " The Merchant Shippini; Act, 18')4."" 18. \Vhene\er any ship or vessel, or the procei'ds thereof. _ are under arrest of tin' lliii'li Court of Admiralty, tlii' sanl (\)urt shall have the same powers as are conferred upon tlic Iliifh Court of Chancery in JMiuiand l»y the ninth part nf "The Merchant Shipiiiny Act, l.S:)4." 14. The lliu'h Court of Admiralty shall he a Court ol Uecord for all intents and purposes. 15. All decrees and orders of the lligli Court of Achni- of .A.iiiiiriiity ralty, wiierelty any sum oi money, or any costs, charuvs, or Court to lie a Court of Ilecord. Pccrre.n ami orders of Cuurt to have ett'ect of <;ouini(iii Jaw judKiiHiits at expenses, shall he itavahlc to any iterson, sliall have tlir same eiieet as judunients in the Siqierior (/ourts of Common Law, and the jjersons to whom any such moneys, or cost-. charijes, or expenses, shall he payable, shall be deenicil judijcmeiit creditors, and all powers of entorciiiij judu'meiits jiossessed hy the Superior Courts of ('ommon Law, or aiiv judge thereof, with respect to matters dei)endiiii; in tlic same Courts, as well against the ships and g\)ods arrestcil as against the person of the judgment th tl le pai'ty issuiuij; such process and the party ma dsinji' the claim, and thereupon any action which shall havi' heen liroMn'ht in any of Her Ma,iesty\s Siquu-ior Courts of Uecord, or in any local or inferioi- Court, in respect of such claim, sci/uro, act, or nnitter as aforesaid, shall hi' stayed, and the Court in which such action shall have heen hroui^ht, or any jiitlye thereof, on proof of tlie issui' of such summons, and that tho goods and chattels were so taken in execution, may order the party hriny'iuii; the action to pay the costs of all liroceediny's had upon the action after issue of the summons out of the said Admiralty Court, and the judi^e of the said Admiralty ('OUi't shall adjudicate upon the claim, and nnike siich order hetween the [tarties in res[u'ct thereot and of the I'osts of the proceediuii's, as to him shall seem tit, and such order shall he enforced in like maimer as any order made ill iiiiy suit hroiiy'ht in the said Court. Where any siu-h claim shall he made as aforesaid the claimant may deposit with the officer chariji'd with the executiim of tlu' [irocess cither the amount or value of the i^oods I'laimed, the value to he fixed hy appraisement in case of dispute, to he hy the ollicer ]»aid into Court to ahide the decision of the jiido doiui:: the officer mav sell tho iroods as it" no such claim .'**- 352 Powers iif Su]). jicridr ("imrts fxtciiilcd to Court of Adiiiiraltv. VrCE-ADMTKALTV RKPOUTS. had beoT'i uisuK', and sliall \K\y into Court the })roc'oeds ot" the sale, to al)i(k' th/j decision of the jndire. 17. The judge of the llit^h Court of Admiralty shall liave all such }»o\vers as are jiossessed l>y any of the Suj^crior Courts of C'oninion Law or anv iudire thereof to cc,;:i' ol either party in any cause or matter to answer interroira- tories, and to enforce the production, inspection, and df- livery of copies of any document in his })ossession or power. rarlv in ('nurt of A<\iniriillv Mii'ition liy Trinity niaslrr 18. Anv , artv in a cause in the Ilii^li Court of Admiraltv may ai.piy ("or shall bc at liberty to ap])lv to the said Court for an order tor iin order lor in- .... the inspection by the Trinity masters or others a})])oint(Ml for the trial of the said cause, or by the party himself or iiis witnesses, of any ship or other [)ersonal or real projierty, the inspe(;tion of which may be material to the issue of tin- cause, and the Court may make such order in respect of tlie costs arisiuii" thereout as to it shall stem tit. Admission of doeiinK'nts, 1 ■ IK Power to Court of Admiralty '■ wlicii personal ',, ' service of 1- . citation lias not [, ;. been elleeted to ; order i)artie \'\ to iiroL-eed, l!t. Any party in a cause in the High Court of Admiralty mav call on anv other pjirtv in the cause lartv so nei;lcctinir or refusing, whatever the result of the cause may be, uidess at the trial the judge shall certify that the refusal to admit was reasonable. 20. Whenever it shall be made to apjiear to the judge of the High Court of Admiralty that r>.'asonable efforts have been made to effect ])ersonal service (»f any citation, moni- tion, or other process issued under seal ot the said Court, and either that the same has come to the knowledge of tlio l)arty thereby cited or monished, or that he wilfully evades service of the same, and has not appeared thereto, the saiil judge nniy order that the party on whose behalf the citation. monition, or other ]irocess was issued be at liberty to [no- cecd as if jtersonal service had been effe *ted, subject to snch (onditions as to the judge may seem fit, and all proceediiiiT-^ thereon shall be as effectual as if personal service of siidi citation, monition, or other process had been effected. 24 VICT. CAP. 10. 853 21. Tho service in iinv Murt ot'Groat lii-itaiii or Ireland of'V'"'*'"«"'''« » of »lll>|)illia nut iiiiy writ of subptina <(n- J,";!"^jJ^[ ';[ '^''' t'crrcd (>n the masters of Her Majesty's Court of (^ueeu's Bel, eh in Eno-huKl and Ireland. 2"). The rei!:istra" of the Iliy:h Court of Admiraltv Tnavi'ow.rsofr((,Ms- . T ' ,. ' ..'.*, traraudof ly.ercise, witii reiei-ence to causes and matters in tiie said ''''I'l'tyrassitt- aiit registrar. Court, tlie same powers as any surrogate of the Judge ot the said Court sitting in chamhers might or could have hereto- tiire lawfully exercised ; and all powers and authorities hy tills or any other Act conferred r.pon or vi'sted in ihe registrar of the said High Court of Admiralty may he exercised hy any deputy or assistant registrar of the said Court. 2t]. The registrar of the said Court of Admiraltv shall i'!iN<"atii or have ]iower to administer oaths in relation to any cause or-i.eiuiMi i..rjurjr. matter deiiending in the •said Court; and any person who siiall will'uUy depose or aflirm falsely in any proceeding hct'ire the registrar or hefore any deputy or assistant registrar "f the said Court, or hefore any [lerson authorized to ad- 1. I 354 VICE-ADMIHAI.TV KEP0HT8. MJ-': n ili m !i- >i!.' };:! lit I Appointment of 1 ■ examiuurs. Stamp duty not payabk' on Bubsoquont admissions of proctors or solicitors. P/octor may act aa agent of solicitors. minister oatlis in tlie said Court, shall be deemed to be c^uilty of perjurv, and sliall be liabl'j to all the pains and penalties attachini? to wilful and corrupt })erjury. - , . , '27. Anv advocate, barrister-at-law, proctor, attornov, or registrar and «- ' ' I ' ■ > ' alsiMant^"'^ solicitor of ten years' standin<>; mav be appointed re_i;isti-;ir registrar. q,. .ijr dcputv registrar of the said Court. Appointment of 28. Auv advocatc, barristcr-at-law, ]»roctor, attorney, or solicitor may be appointed an examiner of the High Court of Admiralty. 29. Any person who shall have paid on hii- admission in any Court as a proctor, solicitor, or attorney the full staiii]i duty of twenty-tive pounds, and who has beer, or shall heiv- after be admitted a proctor, solicitor, or attorney (if in otiicr respects entitled to be so admitted), shall be liable to no further stamp duty in respect of such subsecpient admission. 30. Any proctor of the High Court of Admiralty may act as agent of any attorney or solicitor, and allow him to ptir- ticipate in the profits of and incident to an\' cause or nuittLT depending in or connected with the said Court ; and nothiiii: contained in the Act of the fifty-fifth year of the reign of King George III., chapter 160, shall be construed to exteiid to prev nt an}' proctor from so doing, or to render him liable to any penalty in respect thereof. 6l. The Act passed in the second year of the reign of King Henry IV., intituled "A Remedy for Him wlio i- Wrongfully Pursued in the Court of Admiralty," is hercliv repealed. Power of appeal 32. Any party aggrieved by any order or decree of tlio tor'y matTers. Judge of the Said T^ourt of Admiralty, whether made '.'" ■parte or otherwise, may, with the permission of the juilirc appeal therefrom to Her Majesty in Council, as fully aiwi eft'ectually as from any final decrees or sentence of the saiil (yourt. Bail given in 33. Li any cause in the High Court of Admiralty biiil Admi*iaUy°go.Hi may bc taken to answer the judgment as well of the saiil Appeal. " Court as of the Court of Appeal, and the said High Court of Admiralty may withhold the release of any j»roitcrty under its arrest until such bail has been given ; and in any 2 Hen. 4, c. 11 rt'pt'ak'd. 24 VICT. CAJ». 10. 355 jippeal tVoni any (locree or order of the Tliii^h Court of Ad- miralty, tlio Court of Api>eal may make and enforce its order against the surety or sureties who may have signed any such bail bond in the same nnmner as if the bull had been given in the Court of Appeal. 34. The High Court of Admiralty may, on the applica- Astothehcar- tioii ot tiie deten(uint in any cause ot damage, and on hisaiuUr..>soai.ses. instituting a cross cause for the damage sustained bv him in respect of the same collision, direct that the principal otiuse and the cross cause be heard at the same time and upon the same evidence ; and if in the principal cause the ship of the defendant has been arrested, or security given by him to answer Judgment, and in the cross cause the ship of the plaintiff cannot be arrested, and security has not l)een given to answer judgment therein, the Court may, if it tbink tit, suspend the proceedings in the princi}>al cause until security has been given to answer judgment in the cross cause. 35. The jurisdiction conferred by this Act on the High jurisdiction of Court of Admiralty may be exercised either by proceedings ill rem or by proceedings in persoiuun. 356 VICE- ADMIRALTY KEI'OKTS. Short litK' Interpretation of terms. 26 & 27 VICT. CAP. 24. Vice-Admiralty Courts Act, 1863. An Act to fdrlHtak f/w Appointment of Vice-Adnurats (uid <>/ Ofiioers in Vios- session. nerMajiMv 14. Her \raiestv niav, bv Order in Council, from time to ••htaWiKh and timc, establish rules touchini; the practice to be observed in alttT rules and . , o i tables of few. the Vicc-Admiralty Courts, as also tables of the fees to be taken by the ofKcers and practitioners thereof for all acts to be done therein, and may repeal and alter the existing and all future rules and tables of fees, and establish new rules and tables of fees in addition thereto, or in lieu thereof. nuies and tallies jy, ^ popv of any rulcs or tables of fees which mav at of fees to be laid l . J ^ House of Com- ^"^ ^™^ ^^^ established shall be laid before the House of iiions. Commons within three months from the establishing thereof, or if parliament shall not be then sitting, or if the session shall terminate within one month from that date, then within one month after the commencement of the next session. Tobeenter.d in 16. Tlic rulcs and tablcs of fccs in force in any Vice-Ad- the records '>( . . " the Courts. miralty Court shall, as soon as possible after they have been received in the British possession in which the Court is established, be entered by the registrar in the public books or records of the Court, and the books or records in whicli they are so entered shall at all reasonable times be open to the inspection of the practitioners and suitors in the Court, 17. A copy of the rules and tables of fees in force in any Vice-Admiralty Court shall be kept constantly hung up in some conspicuous place as well in the Court as in the office of the registrar. Kstabiisiied fees 18. Tlic fccs established for an\' Vice-Admiralty (^ourt fws'taken! " sliall, after the date fixed for them to come into operation, be the only fees which shall be taken by the officers and practitioners of the Court. Taxation may 19. Aiiv pcrsoii wlio shall fcel liimsclf aggrieved bv the tx' revised by •' ^ ' T- '• t perjury. 21. If a cause of damage by collision be instituted in any Astotiiohear. \ ice-Admiraltv Court, and the defendant institute a cross ''"'sw- cause in respect of the same collision, the judge may, on tipplication of either party, direct both causes to be heard at the same time and on the same evidence; and if the ship (if the defendant in one of the causes has been arrested, or security given by him to answer judgment, but the ship ot the defendant in the other cause cannot be arrested, and security lias not been given to answer judgment therein, the Court may, if it think tit, suspend the proceedings in the former cause until security has been given to answer judg- ment in the latter cause. 22. The appeal from a decree or order of a Vice-Admi-^,'J„^Pr»{^'^,^5 ralty Court lies to Her Majesty in Council; but no appeal '''"^'^ °'' "'■'*"• shall be allowed, save by permission of the judge, from any decree or order not havini: the force or ettect of a definitive sentence or iinal order. 2.3. The time for aitpealing from anv decree or order of a -^PpeaMf.be i I ~ " made within \'ice- Admiralty Court shall, notwithstanding any existing'*'^ month*, enactment to the contrary, be limited to six inoiilhs from the date of the decree or order appealed from ; and no ap- peal shall bo allowed where the petition of appeal to Her Majesty shall not have been lodged in the registry of the High Court of Admiralty and of appeals within that time, unless Her Majesty in Council shall, on the report and recommendation of the .Fudicial Committee of the Privy Council, be pleased to allow the appeal to be prosecuted, notwithstanding that the petition of appeal has not been lodged within the time prescribed. 24. The Acts enumerated in the schedule hereto annexed ^<'*? repeak-d, Savme rules marked B are hereby repealed, to the extent therein nien- ^„'5er^' aIj w. 4,0.51." 300 A'ICE-ADMJKALTY KKPOJJTK. (HI 'V4 tionod, but tlie ropoal thereof shall not nft'ect the validity ot any rules, orders, reifulations, or tables of fees horotofon- established and now in force, in jtursuanee of the Act ^^\' 2 & 3 William IV. e. ol ; but such rules, orders, reu;ulations. and tables of fees shall continue in force until repealed m altered under the provisions of this vVct. SCHKDULE B. Acts and Parts of Acts Kkpealed. Reference to Act. 56 Geo. TIL c 82. Title of Act. Extent of Repeal. An Act to render valid tlie Judicial Acts of Surro- pites of Vice-Admiralty ( 'ourts abroad, (birini? va- <'ancie8 in ottice of judges (ff such Courts. Ge(;. 113. IV 51, An Act to amend and con- solidate the laws relatiu" I to (he ab()liti(»n of the, I slave trade. i 2& 3 Will. IV. An Act to rcf^ndate the ])ractice and i'vio^ in the A'ice- Admiralty Courts } abroad, and to oltviate doubts as tossessions in India. Section 29, save as above. The whole Act, save as above. 6 Si 7 Vict. 38. 17 & 18 Vict. c. Section 11, so far as it relate- to Appeals from Vice-Ad- miralty Courts, save as above. The whole Act. 1 » >LV- ' H. S. CAN. CAP. 74. Ml Tl. S. CAN. (7Ar. 74. Ai' Acf nspcdhuj Ihe Sliipplixj of SeaiiWH. Tier Majesty, l>y and with the achice and coiisi'iit of the Senate and House ot" Commons of Canada, enai'ts as follows : SHORT TITLE. 1. This Act maybe eited as '' Tlie Seamen's Act." 30 s'">rt title. Vict. c. 129, s. 1. INTERPRETATION. 2. In tliis Act, unless the context otherwise refiuires— i"t.-rprctati..„. {(i) The expression "the said provinces" means the pr()-"Tii.sai.i vuices ot (^ueltec, jsova Scotia, JNew lirunswick, J rince Edward Island and British Columbia; (h) The expression "sliii)" includes every description of"Ship." vessel used in navigation not propelled by oars ; ((') The exinx'ssion "shi]»s belouiirins;: to Her .\raicstv"'.'^'''i'\''e'""«- includes shii>s the cost of which has been defrayed out of •'^'"J^'^'y" the Consolidated lievenue Fund of Canada, and ships des- (■ril)ed as the property of Canada, by the one hundred and ci,ti:hth section of " The British North America Act, 1H«;7"; {" ployed in trading or going from any place or places in any of the said provinces to any other place or [)laces in any other of the said provinc;es ; (/') The expression " master " includes every person (ex- "Master.- ccpt a }tilot) liaving command or charge of a ship ; (//) The expression "seaman" includes every person (ex-" seaman." copt masters, pilots, and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship; p^ ^i. ;{62 VI('K.AI)M[RALTV HKroUTS. " <'cini< of Consul Gonural, Consul or Vice-Consul ; (/) The exjiression " the Hoard of Trade " means tlie Lords of the C/oniniittee of Privy Council appointed for the consideration of matters relatiiiif to trade and forei<,Mi ])lantations; (./■) The expression "the Minister" means the Minister of Marine and Fisheries. 86 Vict., c. 12(>, s. 3. APPLICATION OF ACT. 3. This Act a[)plies oidy to the Provinces of Quehec, Nova Scotia, Xew lirunswick. Prince Edward Island and British Columbia. 36 Vict., o. 12<>, s. 2. 4. This Act .shall not, except as hereiiuifter specially pro- vided, apiily to ships belonging to IFer Majesty. 36 Vict., c. 129, s. 6. ALLOTMENT OF WAUES. 37. All stipulations for the allotment of any part of the wages of a seaman during his absence, which are made at the ccmimencement of the voyage, shall be inserted in the aijrreement, and shall state the amounts and times of iiav- ments to be made; and allotment notes may be in the form B in the scliedule hereto. 36 Vict., c. 129, s. 37. 38. The wife, or the father or mother, or the grandfather or grandmother, or any child or grandchild, or any brother or sister, of any seaman in whose favor an allotment note of i)art of the wages of such seanum is made, nuiy, uidcss the seanum is shown in nniimer hereinafter metitioned to have forfeited or ceased to be entitled to the wages out of which the allotment is to be paid, and subject as to the wife, to the j)rovision hereinafter contained, sue for and recover the sums allotted by the note when and as the same are made payable, with costs from the owner or any agent wiio has authorized the drawing of the note, — either in the summary nuumer in which seamen are, by this Act, enabled to sue for and recover wages not exceeding two hundreil dollars, or in any Court in any of the said provinces haviiii; w U. S. CAN. CAP. 74. :UJ3 inrisdictioti to the lunoniit, witliiti tlic limits o\' wliosc jurirt- ilK'tioii swell owiiiT or Jiift'iit has hi-cii sorvi'd with prorcss, or tlu' uifrcciiu'iit and ullotiiicnt tiotu or I'itlicr of'tlu'iii were or was inadr, — siicli owner (»r aiftMjt liavini; hwu duly served with jiroeess in uny place in any of the said provinees witiiin or without sueli Hniits : (2) Tn any such proeeedinu: it sliall he sufKeient tor tiie Pmof. iliiiniant to prove that he or Hhe is the person mentioned in rlie note, and that tlie note was i^iven hy the owner t)r hy tiie nuister or some authorized au;ent; anrovinces other than shipping master Canadian home-trade shi[)s, shall l)e discharged an iiiuwlcrH to ){iv(' Nfuiiit'ii fcrtifi- <'.it("< of dis- charge. reiialty for default. Shipping iiiastpr may decide niu'>(- tions which parties refer io him. 4T Ht'iiinim l)»'I<>tii;iii- torud in any of the said proviiuies, not hein<; a Canadiiin liome-trade sliip of less than eiijhty tons, deliver to iiini. ny if he is to he discliaru^ed heforc a shippiiiif master, to sikIi shi|>pinLr niaster, a full iind true account of his waijtis, aiid of all deductions to he made therefro:.! on any account wliai- Hoever, and in default siiall, for each (dKeiice, incur a [leiiiiltv not e.xceedini; twentv dollars; and siieh aeeount mav he in the form (' in the schedule hereto. 'M Vict. e. 12!«, s. 4(1. 41. r[)ou the diseharij^o in any of the said provinces nt' any seaman beloni^ini; to a ship rei^istered in any of the siijil provinces, not heint^ a Canadian home-trade sliip of less tliiin eii^hty tons, or upon payment of his waives, the master sliiill siu:n and iyive him a certificate of his dischar<;e in the fonii I) in the schedule hereto, specityini? tlie period of iiis service and tiie time and place of his dischari;e, and sliall make iiinl si_ii;n thereon a report of the conduct, ciiaracter and (|iialiti- eations of the person dischari^ed, duriiiij^ tlie i)eriod he Inis been in his employment; or he may state that he declines to give any opinion ujion such jtartitnUars or upon any ol' them ; and if any master fails to sign and give to any smli seaman rejirtits; nwA iiiiy (locniiiciit |piir|M»rtiM,tf to 1)1- MUch sulirnissiuii <»r ii\\ar(l slmll !»»• jn-inm t'lh-ii «'vi(U'nci' tliiTrot', aii' iliM'liarijt' ot any seaman Itelonirini; 'o aii\ >ni|> rc<;istei\'u .ihchIiii (lUIMTK til 111 anv oi till' said provinces, carric(| on lK't<»rc aiiv s|iiiiiiinii"^i'l|i|'iiiK iiiiiMtiTv and iiiiisti'i- under tlie provisions of this Act, such slii|»pin,i; master Klv.■l■^ill.■tll• iiiiiy <-all upon tlu' owner or his ai^ent, or upon the master or iiiiv mate or other memher of the crew, to produce anv lot;- liiKiks, papers or other hy the shippinuj master does not produce any such paper or document as iil'oi'csaid, if in his possession or [tower, or does not appear and u'ive evidence, shall, unless he shows a reasonahle e.\- isc for such defiiult, incur for each such ott'eiioe a penalty rmaity fur I'l IHI t exceediniT twentv dollars. 3() \'ict. e. 12!», s. 4:J. fnull. LK(iAI, HIUIITS TO WAUKS. to waKi'H mill 44. In the casi' of ships rciristi'red in anv of the .said '"Kht iiiovinees, the riiiht to waiivs and provisions of a si'amaii i"!"^' ciiiraii'ed in any of the said provinces shall he taken to com- iiu'iice either at the time at which he commences work, or at the time sjieeilied for his commencement of work or pivscuce on hoard, whichever tirst happens. .'](') \'ict. c. lii'.t, V 44. 4'). Xo seaman enpiu'cd uikU'I- this Act fni- any ship reuls-si wlifii to lii({in. ti'i'cd in any of the said [irovinccs, shall, hy any en^'an'cmeut riK'"''^ made in any of the said provinces, forfeit his lien upon tht ani) II nut tu I'lirri'it ctTtaiii -hip, or he (h eprivet 1 of anv remed\' for the rcco\t'i'\' of his waii'es to which he wotdd otherwise have heeii entitled am 1 every stipulation in any au'ri'ciiieiit made in any of the aid jirovim-es inconsistent with any [irovisioii of this Act, see VIC K- ADMIRALTY RE POUTS. '$ Proviso. '.*'a){ei< not to do|>eM(l on the earning of frrlKllt. and evorv stiinilation In- which any .seaman consents tn abandon liis rii»;ht to wages in the case of the loss of tlir .ship, or to ahanerative; hnt tlii< shall not apply to the case of any stipulation made hy tlir seamen belonging to any ship which, according to the terni- of the agreement, is to be employed on salvage service, with respect to the riniuneration to be paid to them for salva ;<■ services, to be rendered by such ship to any other slii .. m Vict. c. 129, s. 45. 40. Xo right to wages of any seaman or apprentice (ui board of any ship registered in any of the said ]>rovinti- shall l)e de[iendent on the earning of freight ; and every sudi seaman or apprentice who would be entitled to demand ami recover any wages if the ship in which he has served liinl earned freight shall, subject to all other rules of law ami conditions applicable to the case, be entitled to claim ami recover the same, notwirhstanding that freight has not been earned; but in all cases of wreck or loss of the ship, proot' that he has not exerted himself to the utmost to save tlir ship, cargo and stores, shall bar his claim. -W \'ict. c. Vl'.K s. 4(j. How wages are 47. If auv scamau or apprentii'c to whom wages are diU' to be paid in , , ' ,. . ,. , , ,' case of death. u'.Kier tlic ucxt ]n'cce(nng section dies betore the same arr paid, they shall be paid and ;ipplie(l in the manner herein- after specified with regard to the »vages of seamen who d'w during a \oyage. >}<> Viet. c. 129, s. 47. Right to wage.s 48. AVheiievcr the service of any seaman belongiiiir ti> In case of . .' . ' . ' termination of aiiv shiii regi.>*te'/eroceed on the voyage, grantcil as herein inentit)ned, such seaman shall be entitled to wau*- for tlie time of service prior to such termination as afore; but not for any further period. -50 Vict. c. 12!», s. 48. aiii K. S. CAX. CAW 74. 3«7 4!>. Xo sfiiiiuni or aitprentiee l>t'l<)ii_erio(l durini; which he uidawfully rot\ist's or nei;;-""''" locts to work whon re(iuirt'd, wlictlu'r hetorc or after tlie tinio fixed l»y the a_i;reenient for his heirinnini; work, or unless the Court hearinij the east- otherwise direets, for any (loriod dnrinu; whieli he is lawfully imprisoned for any offence committed hy him. 3(5 Viet. e. 129, s. 4!>. 50. Whenever a seaman helonirinu; to any ship reijistered nim'sl'raus.,! in any of the said provinces is, hy reasim of illness, iiieapa-^'>'J^[j,1^,', "^ Me of performinii; his duty, and it is proved that such illness has heen caused hy his own wilful act or default, he shall not he entitled to waives for the time duriui' which he is, hv reason of such illness, incapable of performing ins y such seaman or appri-nticc, or on his l)ehalf, suni- mon sucli master or owner or other person to ajtpear Itet'oie liim or tliem to answer sueh comidaint. ?>(] Vict. e. V1\K s. r,2. .Iiidjirs may iiiiikc (ircliT for imyiiieiit of wiigcs. Ill- r)3. ['pon appearance of such master or owner, or in default thereof, on due ju'oof of his haviuij heen so sum- moned, sueh Judi^e, )>>a^istrate or justices may exanii upon the oath oi' the respective witnesses of the pai'ties there are any), or upon the oath of either of the parties, ease one of the |)arties reiiuires su ell oatii from the oth in Cl', hefori' such _)ud-lrcss may be isMicJ. ")4. If such order is not <)l)eyed within twenty-four houis next after the makina; thereof, such judije, mai^istrate or /pistices may issue a warrant to levy the amount of the wau'c^ awarded to he due, hy the distivss and sale of the <>;oo(ls and chattels ot" the jterson on whom such order is made, payinir to such [tei'son the overj.lus of the ]u*ooeeds of the sale, after dethictini; therefrom all the ehart::es and expenses incurred hy the seaman or apprentice in the makin<; and heariui; ot the I'omplaint, as well as those incurred hy the distress and levy, and in the enforeement of the order. .'»(! Vict. c. 121*», s. .-)4. If Miffioipiit ilistri^j-s cannot lie foil ml wat;l'^' ami i'X|i<'nsc« may I'l' levii'il on ship, or per- son may tin mmmillfd. .');"). If sutKcieiit distress cannot he found, sueh judirc, maii'istrate or justices may cause the amount of siudi waiTc- and expenses to he levied on the ship in respect of the ser- vice on hoard which the waives are claimed, or the tackle and apparel thereof; and if such ship is not within the juris- dietion of such judixe, mau'istrate or justices, then tlu-y may cause the pt'i'son on whom the order for {)ayiueiit is made i" he aiiprelieiided and committed to the common ijaol of tin' locality, or if then' is no pu)l there, then to that which i- nearest to the localitv, for a term not exceedinprentice is dis- cliarged or put ashore. 3, s. '), s. 57. ")S. Xo seaman helonuing to anv Canadian foreign si'a- N" s.^inan to li'oing shii), who IS engai;ed for a vovage or engagement ai)n.:.(i,.;xc.j)t winch IS to terminate m anv of the said i)r()vnn'es, siiall lK";i':irk"i>r ' (laiigiT 111 lifo- eiititled to sue in any Court ahroad for wages, unless he i> discharged with such sanction as herein reipiired, and with the wi'ittju consent of the master, or proves such ill- usage on the part of the master oi- hy his authority, as to WMri'ant reasouahle api»rehension ol' danger to the life of ^iieh seaman it he I'einained on hoard; hut if any seaman i.,.,,vi-,o. "11 his return to any ot the said proviiici's proves that the master or owner has heen guilty of any conduct or (h'tanlt Y 370 VrCK-ADMIUALTV KEl'ORTS. ^ 'M I I Master lo liiivc saiiic ^('Illt'di('^ for wanes as seaman. whioli, luit tor this section, would have oiititlod the seainuii to sue tor wa^es l)etore the terniiuatiou of the voyai^e oi' iMiji;a^;eineut, lie shall he eutitled to recover in addition ti> his waijes such compensation, not exceediiiiif eiirhtv dollars. as the Court hcariui;' the case thinks reasonahle. -'5(1 \'i(t. c. 12!>, s. .")«. ')0. Kverv nuister of a ship registered in unv of the said provinces shall, so far as the case jierniits, have the same rights, liens and remedies for the recovery of his wages, which l)y this Act or hv anv law or custom anv seaman, iu)\ heing a master, has for tlie recovery (»f his wages; and if, in any proceeding in any (\)urt of Vice-Admiralty, or Court [(ossessing Admiralty jurisdiction in any of the said pro- vinces touching the claim of a muster to wages, any right of set-oil' or counter claim is set up, such C^ourt may enter into and adjudicate upon all (|uesti()ns and settle all accounts then arising or outstanding and unsettled hetween the par- ties to the i*roceeding, and nniy direct payment of any hal- ance which is found to be due. 8(j Vict. c. 12i>, s. 59. In conse((uence of the decision of the House of Lords in the case of The Sara (14 App. Cas. 209), the following amendment was made to the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, 8. 191 : " Every master of a shiji and every i>erson lawfully acting as master of a shi[» by reason of the decease or incapacity from illness of the m.aster of the shij*, shall, so far as the case permits, have the same rights, liens, and remedies tor the recovery of disbursements properly made by him on account of the ship, and tor liabilities properly incurred by liim on account of the ship, as master of the ship now has for the recovery of his wages; and if, in any )>roceeding in any Court of Admiralty or Vice- Admiralty, or in any Comity Couii having Admii-alty jurisdiction touching the claim ot tt master, or any [lerson lawfully acting as master to wages or such disbursements or liabilities us afore8ai settle all accounts then arisiiiu; or outstandinii: and unsettled H. S. CAX. CAP. 74. Ix'tween the j»arties to the procecdiiiiis and to direct pay- iiiL-nt of any balance wliicli is t'oiiiid to l>c due." 52 & 5o Vict. c. 4r), H. 1 (Imii.), A. I). 1SH!>. Tt was decided in Thr Aurora, 8 K. C\ K., 22S, January ISII,'}, that the master, under th • Fnland Waters Seaman"!^ Act(R. S. C. c. 75), liad no lien upon the vessel for his wayes ciirned by him as such master. A lien was, however, <;iven Ity the Statute .">♦; Vict. c. 24 (Can.), passed Aj.ril 1, 1803. This latter statute is sul)sttintiallv a couv of o2 & 53 Vict. c. 40, 8. 1 (Imp.), Hiipra. 371 372 VICK-ADMIIiALTY KKPoKTS. m Interprrtation. ♦' Vessel." " «hip." " Sti'aiiitiiint" or " sieaiiihliiii." "Practice (if Sfamcn.'' " Owner. " Extent 111' a|>- Jdicatiiiii iif thi- ol low in (.' rule.«. Ptoanislii|i?- uikIci' ^ail iir under elled wholly or in part hy steam or hy iiiiy macliinery or [tower other than sails or oars; ('/) The exi»ression "ordinary practice of seamen," as a]i- l)lied to any case, means and includes tlie ordinary practirc of skilful and careful persons enii;a_ii;e(l in navitjatini; tlu' waters of (^anada in like cases ; {() The expression "owner" includes the lessee or chai- terer of any vessel havinu: the control of the navigation thereof. 43 Vict. c. 20, s. 3. REGULATIONS FOR I'KEVENTINO COLLISIONS. 2. The followini:; rules with respect to lights, fog signals, steering and sailing and ratts, shall a[»ply to all the rivers, lakes and other navigable waters within Canada, or witliiii the jurisdiction of the Parliament thereof: that is to say: Prrliminari/. Art. 1. In the following rules every steamship which is under sail and not under steam is to l»e considered a sailing: ship: and every steamship which is under steam, whctlur under sail or not, is to he considcre(l a shi > under steam. Art. 2. The lights mciitioiu'd in the following Artit'l< -. nuniherctl .3, 4, .">, ) On the starboard side, a i^reen li^ht so constructed as on starboard to show an uniform and utd)roken light over an arc of the liorizon of ten })oints of the compass — so fixed as to throw the light from right ahead to two points abaft the beam on the s^^arboard side — and of sm-h a character as to be visible on a dark night, with a clear atniosphere, at a distance of at least two miles ; ('•) On the port side, a red light, so constructed as to show on port side, an uniform and unbroken light over an arc of the horizon of ten })oints of the compass — so fixed as to throw the light from right ahead to two points abaft the beam on tiie port side — and of such a character as to be visible (m a dark night, with a clear atmosphere, at a distance of at least two niik's; ('/) The sai» iig. 374 VICE-ADMrifALTY REPORTS. With regard to ull vcssols \vhoso ^i,<;lits sire iiispcctod, tlic red and u;re»'n side liifhts will not be deeiai'd to lu' fixed {iii«l fitted ill accordance with the remilutions, unless it is so fixed and screened that a line drawn from the outside edirc of the wick to the foremost end of th> inhoard screen <>[' such light shall make an angle of four egrees, or as lunr thereto as may he praaical)!*', with a hie drawn iiaralKl with the keel of the ship from the «> tsi(h» edge of the wick (1). Art. 4. A steaivship, M-h.-n ;owing another sliip. a -aft r lafts, si 'dl, in addition to her side lights, carry two bright white ligiits in a vertical line, one over the other, not li'>s than three feet apart, so as to distinguish lier from other steajiisliips : each of these lights shall be of the same con- struction a)id character, and shall be carried in the same position as the white light which other steamships are re- (fuired to carry. i.ightsand Art. 5. A ship, whether a steamship or a sailinc: (^hin, Nhapes by stoaiu ' ; _ _ ... >"> i or saiiinK siiii>s ^vlK'n emitloved either in laving or In riickiiig up a telegraiili when not uiuler ' •_ • »^ >■ ri i !-< i command. cable, or wliicli from any accident is not under commainl, shall at night carrv, in the same i»osition as the white litrlit which steamships are re([uired to carry, and, if a steamshiji, in place of that light, three red lights in globular lanterns, each not less than ten inches in diameter, in a vi-rtical line one over the other, not less than three feet apart ; and shall by day carry in a vertical line one over the other, not less than three feet apart, in front of but not lower than her foremast head, three black balls or shapes, each two feet iti diameter: What to denotf, {(() These sliajjes and lights are to be taken by approach- ing ships as signals that the shij) using them is not under command, and cannot therefore get out of the way; (/') The above ships when not making any way througii When to carry lid* lights. (1) Sub-section (ej of Article 15 was adopted in Canada in 1893 so as ta bring the regulations for preventing colli;- -ons on navigable waters within Canada into conformity with the amendment adopted in England by Order in Council of date January ;J0, lHlt.3. This sub-.Mection is, with one or two verbul exceptions, a copy of the English amendment. The Imperial regulations of 1884 may be found in 9 P. D., p. 248. R. S. CAN. CAI*. 7!». 375 $93 so as to iterH within by Order in r two verbiil gulations of the water, shall not carrv tlii' side lli^lits, hut when iiiakinsj wa V diall carrv tliojii th Art. H. A sailiiiiT shin iuhUt way, tl )e seen on hoan I sidi To make tlie use of these )rti light s more certain and i.antorns t.. iw imiiited outside. easy, the lanterns containing 'heni shall each he painted outside with the color of liie l'''!it they resjiectively eontain, and shall he provided with proper screens. Art. 8. A shi|>, whetlu ■ steamshiii or a saiMiig ship, ity siiipsat 1 I 1 11 1 • 1 11 !'"'■•«"■• wlien at anchor, shall carry, where it can hest he seen, l)ut at a height not exceeding twenty feet ahovi' the hull, a white light in a glohiilar lantern of not less than eight inches in diameter, and so constructed as to show a clear, uniform and unhroken light visihle all around the hori/on, and at a distance of at lea-t one mile. Art. !•- A pilot vessel, when engaged on her station on By pilot vessel* •1 1 111 1 ' 1-' 1 ' 1 • 1 "" '•"'>'• pilotage duty, shall not cai'i-y tiie lights required tor other vessels, hut shall carry a white light at the masthead, visihle all around the horizon, and shall also exhihit a ilare u}» light or tlare-uj) lights at short intervals, which shall never exceed tifteen minutes : (a) A ])ilot vessel, when not engaged on her station on I'ilotage duty, shall carry lights similar to those of other Wlieii not OD lllllV. dl UllS. \ Art. 10. (a) Open fishing hoats and other open l)oats opt-n fi8hiii« \ .' L n I „,.,1 ..thor 1./. when underway shall not he ohliged to earry the side light? and uthiT Itoats. r ! ' 876 : ifj II- ■ When at ariL'hur. Fi.sliiiiK vcsvfis wlifii firil't ml Trnwlrrs at wiiik. VIClvADMIKAI/rV HKlM)in\s. r('(|nif('(l t'oi- otlu'i' vi'Hst'ls; Imt every sucli boat sliall, in lieu tliert'ot", have rea«ly at liand a lantern with a sj^reeii t^hiss un the one s'kK' and a rt'd i^hiss on the other side; and on tlir a|»|troai'h of or to other vessels, such huitern sliall he ex- hil»ited in sntKeient time to prevent collision, stj that thf screen lii^lit shall not he seen <)n the port wide, nor the nd liifht on the starboard side: {/>) A tishini; vessel, and an open boat, when at anelior. shall exhibit a briii^ht wiiite li_i::ht ; ('•) A tishini? vessel, when employed in drift net tishini;'. shall carry on one of lier masts two red lights in a vertical line one over the other, not less than three feet apart; (//) A trawler at work shall carry on one of her masts two li_u:hts in u vertical line one over tiie other, not less than three feet apart, the upper linrht red, and the lower i;reeii. and shall also either carry the side lights required for othti- vessels, or, if the sid(> lii^hts cannot be carried, have ready at liand the colored lii^hts as provided in Article 7, or ahmtern a[»h (") with a red and a ,4?reen glass as descri of this Article ; ibed in i>aratiiul('(l fill' lliosr uiiilcr CllllVl'Mlillll with hraiiuc. I.arilenis Im- liKhts. Wiij) overt akcu by anotlu'r. for tl lose 11 lentioned in the r2th, 13th and 14th Articles ot' Stcaiiislil|is to liavc certain sound signals. the Convention ])etween France and Enijland scheduled to the " iiritish Sea Fisheries Act, 1«08": ( //) All lights retpiired by this Article, except side lights, shall be in globular lanterns, so constructed us to show all round the liorizon. Art. 11. A hhip which is lieing overtaken by anotlur shall show from her stern to such last-mentioned ship a white light or a Hare-up light. SouikI Si;/' (lis for Fo(/, (tc. Art. 12. A steamship shall be j»rovided with a steam whistle or other efficient steam sound signal, so placed that tlie sound may not be intercepted by any obstruction, and also wita an efficient bell. A sailing ship shall be provided |{. S. CAN. CAP. 7!t. ••577 witli nn t'fticiftit t'oif lioni, to In- somidi'd hy ii Ik'IIows or otlicr iiH'clmnical iiicaiK*, mid also with an ffHciciit licll : Til tog, mirtt, or falliiii; snow, wlictlu'r hy dav or niirlit, '" '"«*«•<'-•• the signals dcscrihfd in this Artidr sliall ln' used as follows ; that is to say : ('/) A stoamship nndcr wav shall maki' with lu-r steam "i"^"-' ••»' \ ' ' •. , lfilfrval< l>y wliistlc or othe'r sti-ani sonnd signal, at intervals of not ni()r('''"'""'''''i>-' tlian two niinntt's, a prolonged hlast : (/>) A sailing: ship under wav shall nuikc with hi-r foirsiKimio.y liorn, at intervals ot not more than two minutes, when on ""'""'k «I'1ih» the starhoard taek one hlast, when on the port tack two lihists in sueeession, and when with the wind ahal't the hi-am, tliree hlasts in sueeession : ((•) A steamship and a sailing siiip, when not under way, "y '•'"8'»8i'iH- shall, at intervals of not more than two minutes, ring the ■II. Speed of S/i)j)s /() he Mnderdle In Fikj, eti in fug, ftc. ini'<'tiii|;. Art. 1;{. Kverv ship, whether a sailing ship or steamshiii,siM'r.i r.stri.i..,i •'_»'_ ."> I I ' in fill/ I'll' shall, in a fog, mist, or falling snow, go at a moderate speed, Stecruuj (iikI Sol/inf/ linJes. Art. 14. AVhen two sailing shiiis are ai)pr()aehini!: one an->-"i>ii'i.iK'*'''i ether, so as to invt)]ve risk of collision, one of tliem shal keep out of the way of the other, as follows, that is to say : («) A shi|> whieli is running free shall keep out of the way of a shij) wliieh is close-hauled ; (/') A ship which is close-hauled on the port tack shall keep out of the way of a shi[t which is close-hauled on the starboard tack ; (/•) AVhen both are running free with the \\ind on ditfer- eiit sides, the ship which has the wind on the port side sliall keep out of tlie way of the other ; (//) AVhen both are runninir free with the wind on the sani e side, the ship which is to windward shall keep out of the way of the ship Avhich is to leeward (/) A ship which has the wind aft shall keep out of the way of the other ship. Art. 1'). If two ships under steam are meetinu; end on, or ^"''"V'''''p» nearly end on, so as to involve risk of collision, each shall ;J7H VlClvADMIUAI/rV liKI'oinN. % l.linitatioii of thinartlclv. ('«SI« Id Willi li It ii|i|ilifi. <'ii'.<« Id whicli il ild)'.M Mill "I'i'iy- iilttT luT course to staHtoiinl, so tliat i-mli iiniv i»iis8 on tln' jioi't side of the otlu'i" : (fi) This Artii'U' only Hiiplics to ciisos wIh'It sliips iin> nu'ctiiiir ciid oil, or neiirlv fiitl on, in hmcIi >i inanncr as to involvi' risk ot" collision,* and docs not ii|»l»ly to two s|ii|iH wliicli iniist, if itotli keep on tiicir respective courses, pass clear of cacli otliei'; (h) 'L'lie only cases to whicli it does apply are, when ea
  • ainslil|isiinil Milling ships. iH'uriiig a Vfdgt'l. Howsloauiships may sif^nal liy sttam. or stop and reverse it necessary. Art. I!*. In taking any course authorized or re([ui'' d by lese regulations, a steamship under way may indicat* 'hat mrse to anv other slii[. which she has in sight by the i<>l- tl C( lowing signals on her steam whistle, that is to say : One short blast to mean " I am directing my course to starboard." :t U. S. CAN. CAP. 7i». :{7!> Two slioi't blasts to lufjiii *• I am «liiv('tiiii; iiiv coiirsc to iMirt." Tliivi' slntit Masts to mean '* T am L'oititr full spccfl astern." Tlic use of tlu'Sf sivrnals is oiitionai ; Imt iltlicv ar»' iistMl,J'''<"»'""ti<« •~ '_ _ • ' Im' li|itli)l||||. the course of tlie ship must he ill aeeordaiiee with the signal liiaile. Art. 20. Xotwithstaiidini; aiivthiiiir foiitaiiied in aiiv |»rt-M.i|. nvtrtakifn iiiiiiihiir. r( (liiii; .\rti('le, every ship, whether a sailiiii; ship or a sti-am- -liip, overtakiiiix any otlier, shall keep out of the way of tho overtaken ship. Art. 21. In narrow ehaniiels every steamship shall, when '*'"♦"'•'''']"• '" >' ' narrow rhaii- it is sate and praetieahle, keep to that side of thi' tiiirway or'"'" iiiidchannel whieh lies on the starhoartl side «)f such ship. Art. 22. When hv tho aliove rules one of two ships is to^'''i'lf'':'i'"'«» *• ' out of thu WBf. kiep out of the way, the other shall keep la-r course. Art. 28. In obevini? and eonstruim; thest; rules, due reu^ard i{< uurd t.. imj >liall he liad to all dani^ers ot navii;ation, and to aiiv special "•' >n»viK«tion. riniimstances which may render a di'partiire from the above rules necessary in order to avoid immediati' dani;er. .V" S/iij>, "tii/cr mil/ Cii'cmtistanris, to Xttfhcf J'ro/nr Pre- en at iims. Art. 24. N'otliinsx in these rules shall e.xonerati' anv ship, iiui.s not to i«r The owner or master or crew ttiereot, trom the conse- jiu'iices of any neu^leet to carry liifhts or si a proper lookout, or of the nci^lect of any invtaution reijuired by the ordinary practice of seamen, or tiy the special circumstances of the case. li(Siri'(ifioii itf lin/i:^ for Unrljnrs (iml Inldnil Xnrif/ii/inii. Art. 25. Xothiny; in these rules shall interfere with the uuiosi.v icat ,, ' • 1 1 I 1 I I I 1 I • aiitliorilii's. 'ipi ration ot a special rule, duly made by local authority, relative to the navi<;ation of any harbor, river, or inland iiavitration. Spi'n'al Jjiijlifs for S'liiiuh'oiis ami Coiiroi/s. Art. 20. Xothiiiii; in these rules shall interfere with the squadron* or . ■ 1 I 111 , convoys. Operation ot any special rules made by the •jjovernmeiit ot iiiiy nation with respect to additional station i^nd signal 380 VICK-ADMIKAI/rV li KIM) UTS. \ nt the other, and every vessel mi'etinir «»i* overtakinir a rati Not to obstruit shall keep out of the way thereof Rafts shall he so navi- uated and anchored as i\ot to cause any unneci'ssary impedi- ment or ohstruction to vessels navii^atiiii^ the same water-. Huriwrofsorri. Art. 2H. Tulcss it is otherwise directed hy the llailMii' (\)mmissioners of .Montreal, ships or vessels enteriin,' nv K'avinu; the iiarhor of Sorel shall take the |»ort sidi', aiiv thiiiir in the prec»'ding articles to the contrary notwitli- standiui^. Art. 20. The rules of naviijation i-ontained in ArticU> I'T and "JS, shall he suhject to the provisions contaiiUMl in Articles 2:} and 24. 48 Vict. c. 2!>, s. 2; 44 \'ict. c 21. s. 2; 4!> Vict. v. 4, s. 2 "m/ schedule. LOCAL UV-L.nVS, PK.VALTIKS, KTC. 8. Xo rule or hy-law of the llarhor (\)mmissioner> nf Montreal or the Trinity House of (^uehec, or C^uehec Ilarhm Commissioners, or other local ride or hy-law inconsistint with this Act, shall ho of any force or effect; hut so far as it is not inconsistent witii this Act, any such rule or hy-la > imui^ hy the said llarhor Commissioners of Montreal <j)]»i>iirs tliat he was in fault, hai for each occasion on wliicli anvt) f tin an 1 ml <■< IS VlO- liitcil, incur a pcnaltv not cxcccdiui^ two liundrcMl dollars and n(»t loss than twi-nty dollars. 4-"{ \'ict. c. '2\K s. "). .'». If, in anv case of collision, it apiicai-s to the Court before •'""''*'"" ''"'" wliicli the case is tried, that such collision was occasioned"'^ ''"''-• hy the non-ol)si'rvance of auv of the ruK-s prescrihed iiy this Act. tl le vessel or raft l»v w hid 1 such rules have heen vio- Hiiprifil liy tmii- oliNt-rvaiirc luted shall he deemed to he in fault: unh'ss it can he shown i(t the satisfaction of the Court that tlu' circunistances of tiie . use rendi-red a . il. If au\' danniije to person <>r propertv arises from the i.iaiiiiiiy r 1 ' 1 • • • 1 llillllUL'r 111' ii()ii-(»l)servance I»v anv vessel or ratt ot anv ot the rules pre-»i'"»ii Mrihed h_v this Act, s\ich damaiTi' shall l»c deemed to have"'"'''' Im'I'U occasiont'il hy the wilt'ul del'ault of the pt-rson in change ■ pI'siicIi ratt, or of the (Un-k ol'such vi'ssel at the time, unh'ss ilic contrary is pi-ovecl, or it is sh(»wu to the satisfaction (»f the Court that the cirt'umstances of the case rendei'ed a departure from the said rules necessary; and the owner of the vessel or "aft, in all civil proeeedin<;s, and the master or jierson in eharife as aforesaid, or the owiu-r — if it appi-ars that he was in fault — in all proeeedini^s, civil or crinnnal, -hall he sidiject to the le<;;al conseiiuenci's of such (U'tiiult. 4:! Vict. c. '2\K s. 7. 7. In anv cause or pioceeditiij for damai^es arisiuLT <'Ut ot'c^s.. wiinv a collision between two vessels, or a vessel and a raft, it";"' >" f^"'''. 'inth vessels or both the vessel and the raft ari' found to liave been in fault, ti»e rules heretofore in force in the Court "t' Adnuralty in Kn- c| iuA the raft, one h;df by each. 4-"! \'ict. c. 211, s. S. ^. I'liless herein ((tlu'i'wjse provided, all penalties incur- i:.M..v.iy of I , , . . , 1 • I • I I |'tcaiiilioals, or liy any jicrson 382 VKMvADMIHALTV RKl'oKTS. K\i<'|itiiiD, airt^ricvod l»y any act. iicujlcct or wilful oinissioji In- whii li till' jti'iialtv is iiiciiri'tMl, bi'foro any two jnstici's ot'tlu' iiciuc. ifiKipaid. on the cvidcnci' o^' one credible witness ; aiwl in default (.t l»aynuMit of sndi jtenalty, such justices may coininit th' ottendci- to uaol for any term not exi'eedini; three mouth-; Application, and, except as hereinafter providi'd, all piuialties reco\freil uiuler this Act shall he paid over to the Minister of Fiuauif and Receiver (lenei-al, and shall he hy him placed at thi credit of and shall form part of the Steanil)oat rns](ci'ti'.ii Fund: i'l-ovided always, that all penalties incurred for auv ott'ence against this Act shall, if such offence is cotniuitttd within the jurisdiction of the Quehei- Ilarhor Commissioiici^. or of the Ilarhor Commissioners of Montreal, he sued foi. I'ecovered, enforced and ajtplied in like manner as penalties imitosed for the violation of the hv-laws of the said llarhoi' Commissiom'rs within whose jurisdiction the otterite is com- mitted. 4.") \'ict. c. -J!*, s. i>. i'lH-ilnudtir *'• ^^'''^'ii^'ver foreiu-ii ships are within Canadian wateiv. the rides for preventiiiii" collisions ]>rescrihed Ity this A> so without danu'er to his own ship and crew, render to tlir other ship, lu-r master, i-rew and [)assengers, siu-h assistaiiif as is practicable, and as is necessary in order to save tluiii from any daiiiTcr caused by such collision; and shall al-n give to the master or other person in charge of the oth. r 8hi|» the name of his own ship and of her port of ri'gistrv. or of the port oi' place to w hicli she belongs, and also tin names of tlie poi'ts and |>laces iVoiii wl'.ich and 1o wiiich >]\r is bound; and if be fails so to do, ami no reasoiial)Ie excii-i' (AX. ("Al' :},s: lice IS coiii- tor such t'ailuro is sliown, the collision sluill, in tin- absence (if ]troof to the contniry, he deemed to have hceii caused hy liis wroni^tid act, ney'leet or detaidt. 4o \'ict. e. 2!t, s, lii, 11. I'lverv master or i>erson in chariic of a Ui'itish <>>• (';nia- ' ii>ii'«ri..Mi;iiiy (liiui ship, wjio tails, without reasonuhle cause, to rendei-'^i!""- Caiiiniiim . . . . . ... "'"I'"' sueli assistance, or to yMve such information as atori'said, is iriiilty of a misdemeanor: and if he is a certificated ofHeer luuler C-aiuidian autJKtrity, an iiujuirv into liis coiuluct may lie lu'ld, and his certificate nniy he cancelled or susju'iided. 4)5 Vict. c. 2!), s. V2, prir/. 12. The owners of anv ship, whether IJritish, Camidian or linwiity or • ' ■ . , . owners liinilcii fiiivitrn, sliall not, whenever all or anv of the foUowiiux events j" 'iLsr of .,,i. llSlllIl WltllOllt occil r witliout their actual fault or privity, that is to say : tiifirfmin. /) Wl leii anv loss o ;iiiy jiersou heing earned in sucn snip f life I or personal injury is cause to (//) When any damaiLfc or loss is caused to any sj^oods, mer- ■liandise or other thinti;s whatsoevt'r on hoard any such ship; \Vh amount rocoTcr- leii any loss ot lite or personal injury is, iiy reason ot'the improper naviu-ation of such ship as aforesaid, i-ausod til any jierson in any other shi}) or hoat; ('/) When any loss or damai^e is, hy reason ot" tin; im- jirojier navigation of such ship as aforesaid, caused to any otiier shi|» or boat, or to any i^oods, merchandisi- or other thinns whatsoever on hoard any other ship or boat, — lir iiiiswcrable in damaii;es in respect of l(»ss of lite (M* per- Kxtrome >uii;u injury, either alone or to_i;ether with loss or »himai;v ai.i to sjiips, boats, ^'oods, merchandise or other thin<:;s, nor in ns|icct of loss or damairc to ships, ijoods, merchandise or ntlicr thini^s, whetlu-r thert' is in addition loss of life or per- >iiiial injury oi- not, to a!Xi;'reu'ate amount exceedin«; thiity- oiirlit dollars anliip lati'd. ?■ .'. m ;{S4 v[('K-A I )M I HA \:ry rkim hjts. 4 uiiicli liiis ln'oii or ciiii !)(' inoiisiircd accordinir to liritish ni- raiiadiim law, tin- iniiiia<;i', as asccrtaiiKMl l»y such iiicasiirr- iiKMit, shall, for tliv iiMrposi's of this si'ctioii, he (lecim-d \n bu tlio toiiiiaijc' of sucji ship. r.intiuKo. !i(.w (.'}) Ill the case of aiiv fori'ii'ii shin whitli lias not Ixin C'liU'tilatL-tl in ^ ' . . . i.rtain.as..-. jmd caiuiot l)t' iiioasiiri'd at'CvU'diiii; to l»!-itish (»r Canadiiin law, the dt'jaity of the minister of mariiii' shall, on ri-cciviiii^ from or hy diroctioii of the Court lu-ariny; the case, surli c'videiict' coiiccrniiiij the diini'nsi(»iis of tlu' ship as it is foiiiid prat'ticahlc to furnish, ,u:ivi' a ccrtificat*' under his hand, statin*; wiiat would, in his opinion, lia\c heeii tlu- tonnaLf of siK.'h ship if sic had heon duly uu-asured aci-ordinu \n Canadian law, and the toiiiiaije so stated in ^^U(dl certilicatc shall, for the jmrposes of this seetiou, he deemed to be the toiina_u:e of such ship. 4'-] \'iet. e. 2H, s. 1:5. As to insur- HiHix iu such 13. Insurances ettected au'ainst anv or all of tlu' ev CllN rrdvisiiiii in CiiM' of altcrii- lion of regulations. enumerated in tiie section next ju'ecedintr, iiiid oceurriiiir without such actual fault or privity as therein mentioned, shall not be invalid by reason of the nature of the risk. 4:1 Vict. c. 29, K. 14. 14. If Her Majesty, actint; on the }o\\\\ recommendation fTmiM'riaiof tile Admiralty and the Hoard ot Trade, by Order in (Vtuncil, annuls or modifies any of the re in addition thereto or in substitution therefor, the (lovi-rimr in Council may, from time to time, make correspondiiiir clianires, as respects C/aiiadian waters, in the re_<;ulatioiis c(»ii- taiiied in the second section of this Ad. or anv that mav lir substituted tor them, or may suspend tlicm or any of tl ii'iii. and make others m tlu'ir 'tead. or iiiav rcvi\ e all or asiv ^ the regulations in the Act of lln' Parliament ol" ('anada passed in the thirly-lirst year Of Her Majesty's reiii'ii, and intituled, " \u Act rcspectinr Cimadiaii on ivcciviiiif e case, siirh us it is tniiiid L'l" iiis liand. tlu' tonnauf accordiiiii to ;-li certiticati' L'<1 t(» be the tt" the events :i(l occiiri'iiii: 1 mentioned. tlie !'isk. 4:1 >niini'n(latioii \}\ Order ill :ions tor |trt'- , l»y Order i»f V of Auirnst, force tor like ,v reirnlation^ the (Jovcriii>r orrespondiiiLT i'uhitions coii- ; that inav Ki' any of thnii. all ()!• any *'( t of Canada "s reiu'n, and (tf Canadian rres|»ondi'n(i' ivith thosr lit DKCISIONS WHICH KEFEK TO THE ABOVE ARTICLES. Art. 2. Tf,f A»;/lvLn!!((,t, Sii L. T. X. 8. 2:}:i; 23 W. K. H82. Art. 8. Thr Ar/:li,iL\ !' App. Cas. 1.%. The Faiuiir M. Camll, 18 App. Cas. 45."> n. The frill iiiiii'iidhshi re, 18 Ali|), ("as. A^A. Art. ;'). The Kd- and Thr Gltanx, L. K. 2 Ad. 850; 8H L. J. Ad. 88; Thr P. On-ha>,l {mv.i), A. C. 207. Art. 6. Thr l)>ihr <,/ Ihtcrlnirh (1891), A. C. 810. Art. 7. The a M. 'p;/, L. K. 1 Ad. W: 14 W. K. 975. Thr PrrktorOu, Oistle, 2 I'. D. 222: 8 ]\ I). 11. Art. 18. ThrJrsm,„Hl and Thr Karl »J Ehjin, L. R. 4 W C. 1; 8 M oo re r. C. X. S. 179. Thr Conrordia, L. R. 1 Ad. 98 : 14 L. T. X. S. 8!»f). Art. 14. Thr Patn,er and The 0>lo(/,n, J.. K. 4 P. C 519; 27 L. T. X. 8. 7»1'9. Thr Cnroni;,,, snj .. The X»r, 80 L. T. X. S. 576. The Ad(u 2s I.. T. X, S25. The Vrhn(>/, I.. R. 8 P. C. 44: 89 L. J. Ad. 20. The Fnnu'iHi'Hf, 2 \\ l>. 8. Art. 15. Thr Jnni;, S. lixrhr. I.. R. 4 Ad. 45H ; 44 L. .1. Ad. 20: Thr Oftn and Thr Thi>,'sn (1894) A.C. 1 10. Thr Anirvlrxn and Th, Si/riu, L. R. 4 Ad. 226; L, R. \\ C. 127. Thr W>i Thr A n nil': iti'iiKi, •>;) . R. : r.. T •)-i 27 L. T. X. S. 101. S. 418. Art. 16. Thr ,r rsiii()ii< 8 Moore !'.(". X / ani I'l'iar, T.. 1 \. •» 1 \d •)•)•) 27 L. T. X. S. Kil, The \nrma, 85 L. T. X. S. 418. Thr I.xnrn.^hirr {\H>.t:l)^ 1». 47; s. e. (1K94) A. C. 1. *:t. 88G V[CK-Al)MII{Al/rV KKPORTS. ■If 'J. ■ ■^i Art. 1!>. Th> Ainu and 7'Ar .l/z/t/Zr/, 2!t L. T. X. S. 118: lil AV. K. 707. 7'Ar Ahin-Inn, and 77*< ,Sv/•/V^ L. R. 4 Ad. ■I2i\. TIti ^Vun. The Amtriroii and YV/f Si/n'u, hUp. 7V/r 7V»o///•> \ :.4 \'I('T. CAT -(. oe Ad. Piar. .1/' .1(7 /" iiiiii III/ fin' lilii' I'l Sjii i-liml tin i.rii'ciM nj Ail imi'iillil ,1 iiri--ii III III I' Miljislifs Diiiiniiiiiii.^ iiiiil ilsi ii'lnl't iult 111 llir (//li/i'il h'iiK/iliiiii. ■2:.Tii ,lri,v, is'.m. Hi' it c'liiK'tiMl In- the tiiu'cn's Most KxcclK'iit Mii.jiMtv. Itv and with the iidvice iind coiisciit of tin- Loi'ds Sjiiritiiiil tiiitl Ttiiiitorjil, and Conmioiis, in this prisi-iit paiTninii'nt assi'iii- liK'd, and hy ihi- aiithdi'ity of thi' sanio, as follows: 1. This Act may he ritcd as the Colonial Courts of Ad- six.n title, miraltv Act, iH'.tu. 2. — (1) Kvi'i'v Coui't of Law in a liritish iiosscssion, whicli Colonial courtf • . 1 • ' I . 11 1 • ■ 1 • 4 ofA.lmlniltr. IS tor tlic time l>t".n<; dcclarctl m pnrsuanct' ot this Act to III a ('ourt of Admiralty, or which, if no snch declaration is force in the possession, lias ihei'isin oritriiial unlimited rlVll jurisdiction, shall l»e a Court of Admiraltv, with tlu' jIU isdiction in this A ntioneii (ii( Adi miraltv mav exircise such jiiri S( licti on HI lik c nianner and to as full an extent as the lliirh Court in Lni>daiid. and ■^liall liave the same rcij^ard as tliat (.'ourt to international law and the comity of nations. I;!) Subject to the pro\ision> of this Act any enactment ivferrin«; to a Viee-Admirulty Court, which is contained in 388 VICK-ADMIRALTV KKroKTS. 27 A 28 Vid, c. 2(5. 86 A 37 Vitt. C. 88. , iX 'm; jin Act of the Iniin'riiil i>iu-liainent or in ii oolotiiul law, .shall apitly to u Colonial Court of Admiraltv, and bo rt-ad as if the exitri'.xsion "Colonial Court of Adinii-alty" wcrt' thurtin Huhstitiitc'd for'' \'i<'t'-Adiniralt_v Court" or for other cxprc-- sion.s rt'spectivelv rcfcrrini; to such \*i{'t'-Adnjiraltv Couri.< (»r the judiie thereof: anii such Court by Order in Council. (4) Where a Court in a British jtossession exercise 111 respect of matters arising; outside the body of a county or other like part of a liritish possession any jurisdiction exii- cisable umler this Act, that jurisdiction shall be deemed tt» be exercised under this Act anr of i.'uloiual aw ((/) Dcclari' any Coui't l' .\iliniralty, and |ir(»\i (>i Aeal sh. ■;, tor tlio purpose thereof, possess all the jurisdiction by tiiis \:'t con- ferred upon a Colonial Court of Admiralty. ti. — (1) The appeal from a judu-ment of any Court iji a Admiralty British possession in the exercise of the jurisdiction con- T/u^n 'a ' ' fcrred by this Act, either where there is as of right no local 31H) VICIvAI)MII{AI/rV K'KI'OliTS. l-'t niijH'iiI or atU'ni (U'cisioii on local aii|ical, Tu's to I Icr Majesty til*' (^ii'fii ill Coiiiicil. ('2) Save n-< may !»(• ntlierwi-c specially alloweil in a imr- tit'iilar case l»y Her Majesty tlie (^iieen in ('oinicil.un ai>|n;il under tliiH section shall not l)e allowed — (ii) From any jmlirment not liaviiiLT tli«' eth'ct of a (h-iini- tivejudirment unless ilie Court appealed from lias ijivcii lease for sudi api'cal : nor {ft) From any jiids^meiit unless the petition of appeal lias Iteeii lodi;'e(| within the time prescrihed l»y rules, or if no time is pri'scrilied within six months triuii tlii' date of the judifiiieiit appealiMl airainst, or if leave to a|ipeiil has ln!en ijjiven then from the date ot" siicji leave. (.'}) For the [lurpose ot'apjieals under this Act, ller Majesty tin- (^iieeii in Council and the .ludiciad Committee of tin I'rivy Council shall, siih.iect to rules under this section, liav all such powi'i's for makiiiLcand eiiforciiii!; judi;'iiients,\vhetli( r inti'rlocutorv or final, for ininishini'' contempts, for rei|uiriiiu' the payment of money into Court, or for any other purpose, as niuv he neecssarv, or as were possessed hv the Ilii^li Court of Delci^ati's hefoiv the )»assin_u: of the Act traiis- t'errini; the powers of such Court to Ifer Majesty in Coun- cil, or as are for the time heinj? jiossessed by the Hitfh Court in Fiiiifland, or l>y the Court ajtpi'aled from in relation tu ^he liki^ matters as thosi' f.rniinu; the subject of ajtpeals under this Act. (4) All Onlers ot the (^iieen in Council or the .indicial Committee of the Privy Council for the ]»urposes aforesai'i. or otherwise, in relation to appeals under this Act. shall ha\ full i'tti'ct throUi!;hout Her Majesty's dominions, and in all places where Her Majesty has jurisdiction. (5) This seetion shall he in addition to, and not in doroir:i- tion of, the authoritv of Her Maiestv in Council or tin' Jinlicial Committee of the I'rivv Council arisini'- otherwiM' than under this Act, and all enactments relatiiii;; to appeal- to Her Majesty in Council, or to the powers of Ifer Majesty in Couneil, or the Judicial Committee of the Frivy Council, in relation to those a}ipeids, whether for makiiiii; rules ami orders or otherwise, shall extend, save as otherwise directed COLOXIAI. COIKTS nV ADMIUAl/rV ACT, Isitu. Iiv Hrr Mii,)i'st_v ill Coiuiiil, to ii|i|M'als to Ilir Miijrsty in ('(•uncil muU'r this Act. 391 7. — (1) Iviilcs ot" Coiii't tor rciruiittiiiir tlif jirofctlnri' and KuiiiKoiCoart. |iiin'ti<'i' (iiK'liidiiii; {\'vn and costn) in a ('(uiit in a Uritisli |i(i.-y tin* saiUL' authority and in thi' saint inanni-r as riili's tondiinir thf jiractic", |irocrdiin', li-t's and costs in thi' said Court in tlic exercise of its ordinary <'ivil jurisdiction res|iectively are made: l'rovi(K'd that the rides under this section shall not, save as prov'xU'd hy this Act, t'xtend to nnitters rehitinjx to the shive tra(h', and shall not, save as provided l»y this sec- tion, come i ito operation until tln'V ha\c been approved i)y llcr Majesty in Council, hut on comiiii; into operation shall have full efJect as if enacted in this Aet; and any enactment inconsisti'iit therewith shall, so far as it is so inconsistent, lie rc]ieal(^d. (•J) It sliall he lawful for Her Majesty in Council, in ap- |ii'ovinij rules made under this Hection, to declare that the rules so nnide vith respect to any nuitters which appear to Her Majesty to he matters of di'tail or ot local e()nceni,inay lie revoked, varied or addt d to, without the approval rv- ijuired hy this section. (:')) Siicli rules may provide for the e \crcisi' of any juris- ilictioii coiiferred hy this Act hy the tull court, or hy any iudife or jud<;es thereof, and suhjeet to any rules, where the i>idinary ci\il jurisdiction of tlie Court can. in any case, he exercised hy a sintrle judi;e, any jurisdiction conferred hy riiis Act mav in the like case he exercised iiv a simple jiidu'e. X. — (1) rul)ject to the provisions of this section nothiii!,'' ,,r„ii,of ill this Act shall alter the ai.plication of any droits of Ad-u^lj'lJf'hJ iiiiraltv or droits of forfeitun-s to the Crown in a I'riti.-h ClKWU. ii-session aiK ui« h droits and forfeiture.- wlieii con- 'leiuned hy a Court of a Britisli possession in the exercise if rhe jurisdiction conferred hy tliis Act, shall, save us is iierwise iirovKled itv anv otiiei 1 1' I )tli Act, 1 )e no tified. accoun ted t'lr and dealt with in such manner as the Treasury from lime to time direct, and the officers of every Colonial Court (•• ^ ^?^^ ^%. ^..\t>^\% IMAGE EVALUATION TEST TARGET (MT-3) 7 A *v ^° /. Ja id 1.0 I.I 1.25 I^IM Ills |37 lU £ MS IM .^ .,. m U 11.6 ^^ t :« vi<;t. c. 90. 1870, or the Paeitic Islanders I'rotectioii Acts, 1X7:2 :<•' '^ :<«vi<-t. c. lit. and 1ly, with the necessary modifications, to appeals from judgments of any Ea^^t xVfrican Court made or pur[)(ifr- ing to be made in exercise of the jurisdiction under tiie Slave Trade (Ea.st African Courts) Acts, 1873 and 1879. 14. It shall be lawful for Her Majesty in Council from time to time to make Orders for the purposes authorized hy this Act, and to revoke and vary such Orders, and every such Order while in operation shall have effect as if it were part of this Act. ('OLOXIAL COURTS OF ADMIRALTY ACT, ISDO. 395 15. In tlie construction of tliis Act, unless the context "I'l^-'preution. otherwise requires, — The expression "representative h'iiishiture " nieuns, in rehition to u British possession, a legislature comprisiiiii; a lei;islative hodv of wliich at least one-half are elected hy inhal)itants of the British possession. The expression " unlimited civil jurisdiction" means civil jurisdiction unlimited as to the value of the suhject- matter at issue, or as to the amount that may l>e claimed or recovered. The expression "judgment" includes a decree, order, and sentence. The expression " appeal " means any appeal, rehearing, oi- review; and the expression "local appeal" means an appeal to any Court inferior to Her Majesty in Council. The expressio!! "colonial law" means any Act, ordin- ance, or other law having the force of legislative en- actment in a British possession, and made hy any authority other than the Imperial parliament of Tier Majesty in Council, competent to make laws for such possession. 10. — (1) This Act shall, save as otherwise in this Act commeuc&- . 1 , ■ , /> • -r» • • 1 • 1 uit'iit of Act. provided, come into lorce in every Britisli possession on the tirst day of July, one thousand eight hundred and ninety- one. Provided that — (a) This Act shall not come into force in any of the British possessions named in the tirst schedule to this Act until Her Majesty so directs hy Order in (^)uncil, and until the day named in that hehalf in such Order; and — {(j) If hefore any (hiy al)ove mentioned liules of Court for the Colonial Court of Admiralty in any British [)0sses- sion have been approved by lEer Majesty in Council, this Act may be proclaimed in that possession by the governor thereof, and on such proclamation shall come into force on the day named in the proclamation. (-} The day upon which this Act comes into force in any 396 VICK-ADMIKALTV KKl'ORTS. ^0 A27 Vict. c. 24. Almlitioii of Vlc&-Admiralt y Courts. J^ritisli ]K)f*sc'ssioii sliall, a.s rci^ai'ds that Hritisli possession, 1)«.' (loomed to bo tlio coininoiu'oim'iit of this ^Xct. (8) If, on tho oonmioiicoiiu'iit of tliis Act in any I'n'itisli ])ossc'ssi()n, Knlos of Co\ii't liavo not hoon aitprovod hv llcr Majosty in [mrsnanco of this Act, tho rulos in fon-o ai ^iidi coninionooniont nndor the 'v'ico-Adniiralty Courts Act, 1nH;1. and in India tho rulos in force at such conmiencenient rciiii- latinos8ession, as Rules of Court under this Act, and nuiy ]>c revoked and varied accordinsj^ly ; ami all foes payable uihIi r such rules nuiy bo taken in such maimer as tho Colonial Court nuiy direct, so however that the amount of each such foe sliall, so nearly as practicable, bo paid to the same officer or person who, but for the passin ordiiuiry civil jurisdiction shall have etfoct as rulos for tlic exercise bv the same Court of tho jurisdiction conferred bv this Act. (4) At any time after tho passimj; of this Act any colonial law may be passed, and any Vice-Admiralty Court may bo established, and jurisdiction vested in such Court, but any such law, establishment, or vesting shall not come into eti'cct until the commencement of this Act. 17. On the commencement of this Act in any British possession, but subject to the provisions of this Act, every Vice- Admiralty Court in that possession shall be abolished ; subject as follows : (1) All judgments of such Vice-Admiralty Court shall Ix' executed and may be appealed from in like manner as if this Act had not passed, and all appeals from ii':;> Vice-Admiralty Court pending at the commencement COLOXIAL C(HJRTS OF ADMIUALTV ACT, 1H!>0. 397 of this Act shall hi' hoard and detiTinitied, and the judi^ment thori'ou oxccutod as nearly as may ho in like manner as it' this Act liad not passed : (2) All i>roeeedin,i^s [(ondinj; in the Vice-Admiralty Court in any British iK)ssession at the commencement of this Act shall, notwithstandinir the repeal of any enactment hy this Act, he continued in a Colonial Court of Admi- ralty of the possession in manner directed hy rules of I'ourt, and so far as no such rule extends, in like nuin- ner, as nearly as may he, as if they had heen origiiuilly l>ei!:un in such court : (3) AVhcre any person holdiiii; an office, whether that of judi>:e, registmr or marshal, or any other office in any such Vice-Admiralty Court in a British itossession, suffers any pecuniary loss in conse<|uence of the aholi- tion of sucli ('ourt, the government of the liritisli pos- session, on complaint of such person, shall ])rovide tliat such person shall receive reasonahle compensation (hy way of an increase of salary or a caftital sum, or other- wise) in respect of his loss, suhject nevertheless to the performance, if recpiired f)y the said government, of the like duties as hefore such aholition. (4) All hooks, papers, documents, office furniture and other thin from the date of any Order applyini;^ to this Act : Provided tliat — (a) Any appeal ai^ainst a jud^'nient nnuK^ helore the coiu- nicncement of this Act may be hroui^lit unmii:altv UKroirrs. W: ! ProamMe. BlWi4 Vitl. (Imp.) f. 27, I 3(K1t Vict. (Imp.) c. (i;i. e2-53 Vlil. (Imp.) c, fiii. M k 5;-) VKT. CAP. 211. All Aft III /ii'nridf j'di' Ihf cxcrol.^i' of Athin'ralf/f ,liiflsil'i,i',,,i, irit/ti'ii Catxitla, In ocrordaiicc with " The Colotiial Courts nf Aihiiiraltu Art, IHDO." At^SKNTKU TO Ml.'^T .II I.V, ISHl. Wlicreas, \)\ tlic third section of tin- Act of the Pailiii- inciit of tin; riiitc(l I\iiii,nloiii, i)iisso(l in the session licld in tlic tit'ty-thini iiiid tith-loiirtii years of Her Majesty's iciuii. chapter twenty-seven, intitnled "An Act to amend the Lnu resiK'ctinij the exercise of Admiralty .Inrisdiction in Ihr Majesty's Dominions and elsewhere ont of the I'nited Kini;-- dom," it is amon_«;st other thin_i:;s provided that the U'liisln- tnre of a IJritish jtossession may, hy any colonial law, decline any Conrt of uidimited civil jnrisdiction, whether orininnl or a]ipi'llate, in that ]>osseHsion, to lie a Colonial Court nl' Admii'alty, and provide for the exercise by snch C.)urt nt its juiisdiction uiidei- the said Act; and whereas the antlior- ity ijiven is exercisable by the j>arliament af Canada liv virtue of the [(owers vested in it by "The Iiritish Xoitli America Act, 1uaiici' of tlic said Act, to (U'clarc the said Court to ln' a Court of Adiniialtv : Thcrotbro Ilor Majcstv, l>v and with tht- advice and consent of the St'iuitu and House ol Cointnons of Canada, eiuiets us follows : 1. This Act niav he cited as "The Adniiraltv Act, 1m!»|."'mu..i mi.. '2. In this Act the expression " tlu- iv\clie(|ucr Court," or iiiLrprtiaiinu. *' the court," means the Kxehe(iuer Court of Canada. 'i. In i)ursiiance of the iiowers y-iven hv "The Colonial '^''"i'"''' , ' 1 .-> . (mil I ii>ii-.ll. Courts of Adniiraltv Act, 1H9(),'' alon-said, or otherwise in"'",'','''"','" any nuuiner vested in the iiarlianiciit of Canada, it is eiiacti'd and declari'd thai the Kxclie(|Uer Court of Canada is und shall he, within Canu(hi, a Colonial (^)urt of Admiralty, and as a Court ol Admiralty shall, v,ithin Canada, liaNC and exercise all the Jui'isdiction, powers and authority <.'ontei'rcd hy the said Act and hy this Act. 4. Such jurisdiction, powers and authority shall he exer- jinis.iinion. cisahle and exercised hv the ExchtMiuer Court throuuhont Canada, and the waters thereof, whether tidal or non-tidal, ov naturally nu\i!j,'ahle or artificially made so, and all por- s(tns shall, as well in such jiarts ot Canada as have heretot'ore liven heyond the reach of tlu' process of any N'ict'-Admiralty Court, as elsewhere therein, have all riu'hts and rciiu'dies in Jill matters (inehnlini:,' cases of cf)ntract and tort ami pro- ceeding's /// /•2. Oil a report dated 6th December, 1892, from the Minister of Justice submittinc; for Your Excellencv's consideration oertiiin general rules and orders, made by the judge of the Ex'ohequer Court of Canada on the otli December instant, for regulating the practice and procedure in that Court in Admiralty cases. These rules and orders, under the pro- visions of section 25 of " The Admiralty Act, 1891," recjuire the approval of Your Excellency in Council, and under the jirovisions of section 7 of " The Colonial Courts of Admiralty Act, 1890," they will not come into operation until they have been approved also by Her Majesty in Council. The minister is of opinion that they are such as should receive approval of Your Excellency in Council, and he recommends accordingly. The minister further recommends that a copy of them be transmitted to the Right Honorable Her Majesty's Principal Secretary of State for the Colonies, with a request that he will cause them to be submitted to Her Majesty in Council for approval. The minister further suggests that in the despatch trans- mitting these rules and orders attention be called, with a view to such action thereunder as to Her Majesty in Council may seem proper, to the provisions of sub-section 2 of sec- tion 7 of " The Colonial Courts of Admiralty Act," under which Her Majesty in Council may, in approving rules made under the section, declare that rules with respect to any matters which appear to Her Majesty to be matters of detail or of local concern may be revoked, varied, or added to, without the approval required by the section. The committee advise that Your Excellency be moved to take action in the sense of the recommendation of the Minis- ter of Justice. All of which is respectfully submitted for Your Excel- lency's approval. JOPIN" J. McGEE, Clerk of the Privy Council. To the Honorable The Minister of Justice. 410 VICE-ADMIHALTY REPORTS. Downing Street, 0th April, 1803. My Lord — I have tlie honor to transmit to yow^ uitli reference to yonr despatch, Xo. ;531, of the 14th of Diu'iin- ber, an Order of JFer Majesty in Council approvini; tlie Rules of Court regulating the jiractice and procedure iu Admiralty cases in the Exchecpier Court of Canada. I have, etc., (Sd.) R. 11. MEADE, For the S. of S. The Officer Administering The Government of Canada. Date. Description of Document. 15th March ' Order of Her Majesty in Council, (Four spare copies.) AT THE COURT A^^ WIXDSOR. The loth day of March, 3893. Present : THE (iUEEX'S MOST EXCELLENT MAJESTY. Lord President, Lord Chamberlain, Mr. Bryce. Whereas there iras this day read at the Board a Memorial fron^ the ]il(/ht Ilonorahle the Lords Commissioners of the Admi- ralty, dated tlie '2Wi day (f February, 1893, in the irords foUoicinf/, viz. : " Whereas bv an Act passed in the tiftv-fonrth vear of Your Majesty's reign, entitled ' The Colonial Courts of Ad- miralty Act, 1890,' it was, amongst other things, provided that Rules of Court for regulating the procedure and pnu- tice (including fe js and costs) in a Court in a British posses- sion in the exercise of the jurisdiction conferred by this Act, ■whether original or appellate, may be made by the same THE ADMIKALT^' ACT, 1H91. 411 aiirhority uiid in the same manner as rules touchinoj tlie pi'iietiee, procedure, fees and oonts in the said Court in the cxon^ise of its ordinary civil jurisdiction respectively, are iiiiule, hut tlijit such Rules of Court shall not coine into Kjieration until they have heen approved hy Your ^fajesty in Council, hut on coming into operation shall have full otfect as if eiuicted in the said Act. •'And whereas it appears to us and to Your Majesty's Sucrctary of State for the Colonies to he expedient that the Rules of Court hereto annexed, having heen duly prepared 1)V the proper authority as re juired hy the said Act, should he cstahlislied and be in force in the Excherpier Court of Canada in its Admiralty ji'.risdiction, •'And whereas the provisions of sub-section 2 of section 7 of the aforesaid Act empower Your Majesty in Council in approving rules made under this section to declare that the nik's so made with respect to any matters which appear to Your Majesty to be matters of detail or of local concern may be revoked, varied, or added to, without the approval required by this section. ''And whereas it appears to us that rules 158 to 176 relat- ing to appeals from the judgment or order of a local Judge in Admiralty to the Exchequer Court ; Rule 224, as to cases in which half fees only should be allowed ; and the Tables iif Fees appended to the Rules should be considered to come within the scope of the sub-section in question, and be ik'clared to be subject to revocation, variation, or addition, without the approval of Your Majesty in Council. " Xow, therefore, we beg leave humbly to recommend that Your Majesty will be graciously' pleased by Your Order in Council to direct that tlie Rules of Court hereto annexed >hall be the Rules of Court for the said Exchequer Court of Canada in its Admiralty jurisdiction, and shall be established nnd be in force in the said Court, and to declare that liules 158 to 176 (both inclusive), Rule 224, and the Tallies of Fees appended to the Rules, may be revoked, varied or added to without the approval of Your Majesty in Council." ITer Majesty, having taken the said Memorial into con- sideration, was pleased, by and with the advice of Her 412 VICE-ADMTRALTY KKPOKTS. Privy Council to ii]>i)rov(! of what is tlicrciii proposed, aiid to direct tluit tiic liiilcs of Court liorcto annexed shall h. tlie Rules of Co\irt for the saitl K\'che([uer Court of Caiiaihi in itH Admiralty jurisdiction and shall he estahlished and he in force in the said Court, and to declare that Rtilcs l.Vs to 17(5 (hoth inclusive), Rule 224, and the Tahles of Foos appended to the Rules, may he revoked, varied, or added to without the approval of Her Majesty in Council. And the Ixiirht Uonorable the Lords Commissioners of the Adiiii- ralty are to give tlu necessary direction herein accordingly. C. L. PEEL. THE ADMmALTY RULES, 18!t3. 4ia GENERAL RULES AND ORDERS IlE(fUI-ATIN(i THE PRACTICE AND rROCP:DURE IN M\Um CASES IN THE EXCUE((lJE[l COURT OF CANADA. Tn pursuance ot the provisions of " Tlio Colonial C'ourt.s ofAilniiralty Act, iHilO" and ot "The Admiralty Act, 18!»1," (Canada), it is ordered that the tbllowiuiji: rules of Court for regulatinsj^ tlie practice and procedure (includinij; fees and costs) of the Exchequer Court of Canada in the exercise of its jurisdiction, powers and authority as a Court of Adnii- lalty sludl be in force in the said Court. 1. In the construction of these rules, and of the forms and tallies of fees annexed thereto, the followini^ terms shall (if not inconsistent with the context or suhject-matter) have the respective meanings hereinafter assigned to them ; that is to say : {(i) AVords importing the singular number include tlie plural number, and words importing the plural number include the singular nund)er; (//) AVords importing the masculine gender include females ; ('•) "District" sliall mean an Admiralty district constituted by or by virtue of" The Admiralty Act, 1891 " ; and in respect of proceedings in the registry of the Court at Ottawa shall inchide the whole of Canada ; (//) "Court" or "Exchequer Court" shall mean the Exchequer Court of Canada ; (' ) " Kegistry " shall mean the registry of the Court, or any district registry thereof; 414 VTCK-ADMTKALTY KKPOltTH. (/) "Ju(l<;t'" slmll iiicaii the JikI.i;*' of the Court, or ;i lociil jiidi:;!' ill iidiniralty of tlio Court, or aiiyiui-son lawtully aiitliori/i'd to art as judge thereof; (//) " Ues;istnn' " shall mean the reijistrar of the Court, or any deputv, assistant or distriet rei^istrar thereof; (A) " Marshal" sjiall mean the marshal of the Court, m any deputy, assistant or distriet marsjial thereof, or aii\ sheriff or coroner authorized to perform the duties ami funetions of a sheriff in eonneetion with the Court; (<) "Action " sliall mean any action, cause, suit, or otlai' procee or a[ipears by a solicitor; (o) "Person" or "party" shall include a body corporati' or })olitic; (/>) "Ship" shall iiicbnle every descri])tioii of vessel \\>vt] in naviu'atioii not proi»elled by oars only; (7) " Month " shall mean calendar month. ACTIONS. 2. Actions shall be of two kinds, actions in ron and actions 17} pcrsoiaiiit (1). 3. Actions for condemnation of any ship, boat, cariro, pro cecds, slaves, or eit'ects, or for recovery of an}' pecuniMrv forfeiture or penalty, shall be instituted in the name of tlic Crown. (1) The Volant, 1 W. Rol). 387. The Hope, 1 W. Koh. 1")4. The Orient, L. R. 3 T. C. G96. TheZephyr,llL.T.S.H.\^rA. The Dictator (1892), P. 64. Note < o The St. Cloud, ante p. loo THK ADMrWI/rV KTLKS, IHOM. 4. All actions slmll be I'lititU'd in tlio (-ourt, luul shall l»o niuiiln'i'i'd ill tlit^ order in wliicli tiiey iiro instituti'd, and tiio iiinnhcr driven to any action shall he tlu^ distin,<;nishinii' iiuinhcr of the action, and shall he written or printi-d on all docninents in the action as i)art of the title thereof. Forms of the title of the Coiirt and of tiie title of an a<'tion will he found in the Appendix hereto, Nos. 1, 2, H and 4. WRIT OF Sl'MMONS. ;'). Every action shall he coniineneed hy a writ of snm- Mions which, hefore l)ein, (', 7, 1< aid 10 (1). i!. In an action for seaman's or master's wattes, or for master's wa<:;es and dishursemetits, or tor necessaries, or for liottomrv, or in anv moi'tiiraiie a(;tion, or in anv action in which the plaintiff' desires an account, the indorsement t)n the writ of summouH may include a claim to have an account taken. 7. The writ of summons shall he indoi'sed with the name and address of the [)lalntiff, and with an address to he called an address for service, no*^ more than tliri'c miles from the ri'U-istry, at which it shall he sutHcieul to leave all docu- iiiciits required to he served upon hin). M. The writ of summons shall he prepared and indorsed liy the plaintiff, and shall he issued under the seal of the Court, and a copy of the wi'it aiul of all the indorsemoits thereon, sio-ned hy the plaintiff, shall he left in the registry at the time of sealiiiiij the writ. !•. The judiiv may allow the plaintiff to amend the writ of summons aiul the indorsements thereon in such majiner and on such terms as to the judy-e shall seem fit (2). (1) The John Bellamy, L. R. 3 A. The W. A. Sholten, 13 F. I). 8. &E. 12<). (2j The Duke oj Jiuccleuch (]sy2) The Princeifii Eoyul, L. R. 3 A. & E. P. 201. 27 ; The Vivar, 2 P. D. 29. 415 1 : ■ ' 'I . ■■■ 410 vrcK-ADMiHAi/rv uKi'oirrs. i 'r « SKKVICK OK WHIT uF SIM.MuN.S. 10. Ill an acti(»M in rtm, the writ of siiiiuiioiirt shall lie Hervt'd — (''/) rpoii ship, or upon cari^o, t'ri'i^^lit, or other jtropcrtv, if the <'ai'L'"<> or other proiti-rty is on hoard a ship, li\ uttachiiii; the writ lor a sliort time to the niaiii-iuast or the siuifk! mast, or to sonu' other eonspieiioiis part <)[' tlie ship, and by leavinuj a copy of tlie writ attaehnl thereto; {!)) rpon earifo, freit,'ht, or otlier property, if the earijo m- other property is not on hoard a ship, by attaehiiiLr the writ for a short time to siicii earijo or property, and li\ leaviiiij^ a copy of the writ attached thereto; {<■) Upon freiirht in the hands of any person, hy siio»v- inii' 'lie writ to him and hy leaving with him a e(t[iy tht'reof ; [it) (Tpon proeeeds in Court, hy showing the writ t(t the ri'ijistrar and 1)V loavintc ^vith iiim a eopv thereof. 11. If access cannot be (d)tained to the pro[terty on wliidi ,» it is to be served, the writ may be served by showing it to any }>i'rson ajipearing to be in ciiarge of such property, ami bv li-aviiiii" witli him a eopv of the writ. 1:2. In an action in pcrsoiHiin, the writ of summons shall be served bv showina: it to the defendant, and bv leaviiiir with hijii a c()[»y of the writ. ]-3. A writ of summons against a firm mav be served upon any meml)er of the firm, or upon any person ai)pearing at tlie time of service to have the management of the bu.siiicss of the firm. 14. A writ of summons against a corporation may he served ufion the mayor, or other head officer, or upon the town clerk, clerk, treasurer or secretary of the corporation and a writ of summons against a public company may l»e served u[)on the sei-retary of the company, or may be left at the otHce of the com])any. 15. A writ of summons against a corporation or a public company may be served in any other mode provided by law TlIK ADMIKAI/rV HULKS, 180;J. for Hcrvic*' of nny otlior writ »>r l('«;iil proi-osw upon sucli cor- l">niti()M c hereto, No. 11. 11>. No service of a writ or warrant shall be required when the defendant by liis solicitor undertakes in writint^ to accept service thereof and enter an ap{tearance thereto, or to put ill l)ail, i»r to pay money into Court in lieu of bail ; and ui»y fdlicitor not entering an apjiearance or putting in bail or paying money into Court in lieu of bail in pursuance of hi» written undertaking so to do, shall l)C liable to attuclmioiit. SERVICE OUT OF .rrillSDICTION. 20. Service out of the jurisdiction of a writ ot summons, or notice of a writ of summons, may be allowed by the judge whenever : (n) Any relief is sought against any person domiciled or ordinarily resident within the territorial jurisdiction of the Court ; {b) The action is founded on any breach or alleged breach within the territorial jurisdiction of the Court of any contract wherever made, which according to the terms thereof ought to be performed within such jurisdiction; 417 'I (1) The Sol is, 10 P. D. 62. BB fe^' 418 VICK- ADMIRALTY KKl'OKTS. (r) Any injunction is soui^lit as to anvthiny" to be (liiiic within the territorial Jurisdiction of the Court. {)/) Any jterson out of the jurisdiction is a noccssiirv nv proper party to an action i»roi»erly hroii<>;ht ai)lication for leave to serve a writ of sinn- mons, or notice of a writ of summons, on a defendant out nt the jurisdiction shall be supported by affidavit, or otlnf evidence, stating that in the belief of tlie deponent the plain- tiff has a ij^ood cause of action, and showiniirty upiieiiriii^- has a set-ott" or counter-chiiin jiLCJiiiist tlie plaiiititt", he may in(h)rse on his ajiiJearatiee a statement of thi' nature thereof, and of the relief or remedy required, and of the amount, if any, of the set-otfor connter- {.•laim. But if in the oi>inion of the Judtje such set-off or counter-elaim eannot he eonveniently disposed of in thf action, the judi:;e ina\ o»'der it to he struek out (1). 28. Tiio ap[>earan('e shall he si<:;ned hy the jtarty ai)pear- iiifj, and shall state his name and address, and an address, to he ealled an address for serviee, not more than three miles from the rei>;istrv, at which it shall he suffieient to leave all documents i'e(|uired to he served upon him. Forms of Appearance and of Indorsement of set-off or counter-claim will l)e found in the Appendix hereto, Xos. 12 and Vo. PARTIES. 29. Any number of [)ersons haviuij interests of the same nature arisiiiij out of the same matter mav he joincid in the same action whether as plaintiffs or as defendants (2). 30. The judge may order any person who is interested in the action, though not named in the writ of smnmons, to come iti either as plaintiff' or as defenchint. ■11. For the purposes of the last [ireceding rule an under- writer or insurer shall he deemed to he a person interesteon what terms any person shall come in, and what notices and documents, if any, shall he given to and served U|)on him, and may give such further directions in tlie matter as to him shall seem tit. CONSOLIDATION OF ACTIONS. •33. Two or more actions in which the questions at issue are suhstantially the same, or for matters which might pro- perly he condjined in one action, nuiy he consolidated hy 11 (1) The Riiby, 15 V. D. 139. (2) The Ihwlhorpe, 2 W. Rob. 73. The Julinder, Spinks 75. The Diana, 31 L. T. N. S. 20:5. The Union, Lush. 12S. 420 VICE-ADMIRALTY REPORTS. order of the judge upon such terms as to him shall seem fit (1). 34. The judge, if he thinks fit, may order several actions to be tried at the same time, and on the same evidence, or the evidence in one action to be used as evidence in another, or may order one of several actions to be tried as a test action, and the other actions to be stayed to abide the result. WARRANTS. 35. In an action it) ry his direction before a clerk ii the registry, or before a commissioner having authority to take acknowledgements or recognizances of bail in the court, or before a commis- sioner apjtointed by the Court, to take bail. Forms of hail- bond and commission to take bail will be found in the Appendix hereto, Xos. 17 and 18. 47. The sureties shall justify by affidavit and may attend to sign a bond either seitarately or togetlier. A form of affidavit of justification will be found in the Api»en(lix hereto, Xo. 19 (2). 48. The commissioner to take bail and the affidavits of justification shall, with the bailbond, when executed, he returned to the registrv bv the commissioner. 49. No commissioner shall be entitled to take bail in any action in which he, or any person in partnership with him, is acting as solicitor or agent. 50. Before filing a bailbond, notice of bail shall be served upon the adverse party, and a certificate of such service shall be indorsed on the bond by the party filing it. A form of Xotice of Bail will be found in the Appendix hereto, Xo. 20. 51. If the adverse party is not satisfied with the sufficiency of any surety, he may file a notice of objection to such surety. A form of notice of Objection to Bail will be found in tlio Appendix hereto, Xo. 21. 52. Upon such objection being filed with the registrar an appointment may be obtained for its consideration before (1) The Keroula, 11 P. D. 92. The St. Olaf, L. R. 2 A. «& E. 360. The George Gordon, 9 P. D. 46. The Freedom, L. R. 3 A. & E, 41)5 The Don Ricardo, 5 P. D. V2\. (2) The Corner, Br. & Lush. 161. THE ADMIRALTY RULES, 1893. liiiii. Twciitv-tbiir hours' notice of such appointment shall he iijiven to the })laintitt unless the judjjje for special reasons allows a shorter notice to be given ; and, on the return of the appointnient, the registrar may hear the parties and any I'vidence they may adduce regarding the sutliciency of the sureties; and he may direct such sureties to submit them- selves to cross-examination on their affidavits of justification; and he may allow or disallow the l)ond. lie may adjourn the appointment from time to time if he thinks necessary, and shall himself make such incjuiries respecting the sureties as he thinks fit. RELEASES. 53. A release for property arrested by warrant may be issued by order of the judge. ')4. A release mav also be issued bv the registrar, unless there is a caveat outstanding against the release of the property, — {(i) On payment into Court of the amount claimed, or of the api)raised value of the property arrested, or, where carijjo is arrested for freight onlv, of the amount of the freiijht verified bv affidavit ; (6) On one or more bailbonds being filed for the amount claimed, or for the appraised value of the property ar- rested, and on the allowance of the same if objected to ; or if not objected to, on proof that (ive)i(i/-four hoars^ notice of the names and addresses of the sureties has been previously served on the party at whose instance the property has been arrested ; ((■) On the application of the party at whose instance the property has been arrested ; ('/) On a consent in writing being filed signed by the party at whose instance the property has been arrested ; (c) On discontinuance or dismissal of the action in which the property has been arrested. 55. Where property has been arrested for salvage, the re- lease shall not be issued under the foregoing rule, except oil discontinuance or dismissal of the action, until the value 423 :|!i< 424 YICE-ADMIKALTV REPORTS. of tlie property arrested has been agreed upon between tho parties or determined by the judge. 56. The registrar may refuse to issue a release Avithout the order of the Judge. 57. The release shall be prepared in the registry, and shall be signed l»y the registrar, and issued under the scnl of tlie Court. A form of release will be found in the Appeii- which first came into collision : (14) What fault or default, if any, is attributed to the other sli![t (1). PLKADINUS. (j1. Every action shall be heard without [(leadings, uidess tlie judge shall otiierwise order. 62. If an order is made for jtleadings, the plaintitl" shall, within one week from the date of the order, file his statement of claim, and, within one week from the filing of the state- ment of claim, the defendant shall file his statement of defence, and within one weekirom the filing of the statement of defence the plaintiff shall file his reply, if any ; and there shall be no pleading beyond the reply, except by i)ermission of the judge (2). 63. The defendant may, in his statement of defence, plead any set-off or counter-claim. But if, in the opinion of the iutlffe, such set-off or counter-claim cannot be convenientlv disposed of in the action, the judge may order it to be struck out. 64. Every pleading shall be divided into short paragraphs, numbered consecutively, which shall state concisely the facts on which the party relies ; and shall be signed by the party filing it. Forms of pleadings will be found in the Ap- pendix hereto. No. 23. 65. It shall not be necessary to set out in any pleading the words of any document referred to therein, except so far as the precise words of the document are material. 66. Either party may apply to the judge to decide forth- with any (juestion of fact or of law raised by any pleading, (1) Sub-section 14 is new. (2) The North Avierican, Swa. 359. The Marpesia, L. R. 4 P. C. 212. The Im, 8 P. D. 227. See ante, pp. 115, 154. 426 VICE-ADMTKALTY HKPOltTS. aiul the Jiuli^u shall theretiiton make such order as to liim nhall Heem tit. G7. Any plea. 75. No costs of provinii; any document shall he allowed, unless notice to admit shall have been ])revionsly iifiven, or the taxing oflicer shall be of opinion that the omission to ifive such notice was reasonable and proper. SPECIAL CASE. V). ]*arties may agree to state the (piestions at issue for the ()})inion of the judge in the form of a s[>ecial case. 77. If it ap[»ears to the judge that there is in any action a question of law which it would be convenient to have de- cided in the first instance, he may direct that it shall be raised in a special case or in such other maimer as he may deem expedient. 78. Every special case shall be divided into paragraphs^ numbered consecutively, and shall state concisely such facts and documents as may be necessary to enal)le the judge to decide the question at issue. 79. Every special case shall l)e signed l)y parlies, ani] may be tiled In' any party. MOTIONS. 80. A party desiring to obtain an order from the judge ^iiall iile a notice of motion with the atHdavits, if anv, ou which he intends to rely. 81. The notice of motion shall state the nature of the order desired, the day on which the motion is to be made, 427 428 VrcK-ADMrUALTV UKI'OliTS. and wlK'tlitT in Court or in (MmniltcrH. A form of notice ot niotioji will \k' found in tlic Appendix licri'to, Xo. ;5(). 82. Kxccpt l)_v consont of tin* advorso party, or ])y order of till' jud);e, the notice of motion shall lu' tiU'd lir('iit»/-hiiir Jiours at least before the time at wliieli the motion is made, 83. When the m»»tioi; comes on for hearini;, the judirc. after heai'iiii; the [lartics, or, in the ahsence of any of thfin, on i)roof that tiie notice of motion has heen duly served, may make sncli order as to him shall seem fit. 84. The jndtrt' luay, on due cause shown, vary or reseind any order previously nuide. TENDERS. 85. A party desiring to make a tender in satisfaction of the whole or any part of the adverse party's claim, shall pay into C^ourt the atnount tendered hy him, and shall tile a notice of the terms on which the tender is made. Hut thr payment of money into Court shall not be deemed an ad- mission of the cause of action in respect of which it is paid (1). 86. Within a veek from the filinsr of the notice the ad- verse party .shall file a notice, stating whether he accepts or re,^cts the tender, and if he shall not do so, he shall Ix' held to have rejected it. Forms of notice of tender and of notice accepting or rejecting it will be found in the Appen- dix hereto, Nos. 31 and 32. 87. Pending the acceptance or rejection of a tender, the l^roceedings shall be suspended. EVIDENCE. 88. Evidence shall be given either by affidavit or by oral examination, or partly in one mode and partly in another (2). 89. Evidence on a motion shall in general be given bv jvlHdavit, and at the hearing by the oral examination of (1 ) The Hickman, L. R. 3 A. & E. 15. The Thracian, L. R. 3 A. & E. 504. The Lotus,! P. D. 199. (2) The Peerless, Lush. p. 41. TIIK ADMlkAI/rV UrLKS, 1H93. 42» V or ri'sciiid Timation ot witnewHCrt; hut the iiKxh^ or ino tn he illiterate, the person hi-lore whom the afKdavit is swniu shall eertity that the aflidavit was ri-ad over to the deponent, and that the deponent appeai'i'd to nnderstanpeak the French lanijnai;e, tlif atKdavit shall he taken down and read over to the deponent hy intei'i)retati<)n either of a sworn interjtreter of the Coint. or of a person previously sworn faithfully to interpret tlic atKdavit. A torm of jurat will be found in the Appendix hereto, No. 87. 100. AtKdavits may, hy permission of the .judi^o, he used us evidence in an action, savini:; all just exceptiofis — (1) Tf sworn to in the Tnited Kiui^dom of (Jreat Ihitain and Freland, or in any British jtossession, before any l)erson authorized to administer oaths in the saiefore a judi^c or niayistrate, the si«>;nature of such judge or magistrate being autlienticateliiill liiivc |i(i\vcr to iidioiirii tin- cMmiiiiiitioii from tiiiu> to time, aiid from {ihicc' to pliicc, if he shull thiid< necessary. A form of or(h'r for cxamiiialion of witiu-HSfs will l)t' found in the ApjK'iidix hereto, No. W. 10;}. If tlie witiijsM eiuiiiot he conveniently examined he- tore the jiidi;;e (»r the registrar, oris heyctnd the limits of the and filed hy either party, and maybe used as evidence in the action, saving all just exceptions. SHORTHAND WRITERS. 109. The judge may order the evidence of the witnesses whether examined before the judge, or the registrar, or a %M It 432 VICE-ADMIRALTY liEPORTH. t'onimissioiier, to he taken down by a shorthand writer, wIk^ shall havi' been jireviously sworn taitJifully to rejtort tlir evidence, and a transeri}>t of the shorthand writer's M()te>, certified hy him to be correct and aitproved by the judijo, re<^istrar, or eornniissioner, as the case may be, shall hv lodged in or transmitted to the registry as the certified evi- dence of snch witnesses. The shorthand writer shall, in addition to such transcript thereof, supply the registrar three copies of such transcript, one of which shall be handed to the judge and the others given to the plaintiff and defendant respectively. A form of oath to be administered to tlu- shorthand writer will be found in the Appendix hereto, Xo. 41. PRINTIN(i. 110. The judge may order that the whole of the pleadineen an ap[ti'arance, eithi-r partv may set down the action for trial — {(i) After the ex[)iration of one ircih from the entry of the ajipearance, uidess an onler lias hec made for plead- ini^s, or an apjtlication for such an order is |tendinu;; (//) If pleadinii's have heen onh'red, when the last plead- ing has been tiled, or when the time allowed to the adverse i)arty for tiling any [»leading has expired with- out such pleading having been tiled. In collision cases the Preliminary Acts may he opened as soon as the action has been set down for trial. 117. Where the writ of summons has been indorsed with a claim to have an account taken, or the liability has been admitted or determined, and the (piestion is simply as to the amount due, the Judge may, on the application of either I'urty, fix a time within which the accounts and vouchers, and the proofs in support thereof, shall be tiled, and at the expiration of that time either [>arty may have the matter set down for trial. TRIAL. 118. After the action has been set down for trial, any (uirty may a[)ply to the judge, on notice to any other party appearing, for an order fixing the time and place of trial ; or he may, upon giving the opposite party ten days' notice, set the action down for trial at anv sitting of the Court dulv appointed to I held by the judge. 119. At the trial of a contested action the j)laintiti:' s''all in general begin. But if the burden of ])roof lii's on the ilel'endant, the judge may direct the defendant to begin (1). 433 (1) The John Oii'tn, 5 Can. L. T. 565 The Otter, L. R. 4 A. & £. :i03. CC The Benmore, ibid 132. ! ; ^ 434 VICH-ADMIKALTV KHl'OUTS. 120. If there are several plaiiititts or several (leteiulants. the judge may direct wliicli plaintitl:' or wliioli det'i'iidant shall beiiiii. 121. The iiarty hes^iiiniii^ shall iirsi address the Couit. and then prcxhice his witnesses, if any. The other paity nr parties shall then address the Court, and prodi'ce their wit- nesses, if any, in such order as the judire may direct, and shall have a right to sum up their evidence. Tn all cases the party heginning shall have the right to rej)ly, hut shall not produce further evidence, except by permission of tln' Judge. 122. Oidv one counsel shall in general he heard on cadi side; Init the judge, if he considers that the nature of ihc case requires it, may allow two counsel to he heanl on each side (1). 12']. If the action is n.icoutested, the judge may, if lie thinks tit, give judgment on the evidence adduced 1 y tlic plaintitt. REFKREXCKS. 124. The judge may, if he thinks tit, refer the assessnuiil of damages and the taking of any account to the registrar, either alone, or assisted by one or more merchants as as- sessors (2). 125. The rules as to evidence, and as to the trial, shall apply inatatis mt'/uiulis- to a reference to the registrar, ami the registrar may adjourn the proceedings from time to time and from })lace to place, if he shall think necessary. 126. Counsel may attend the hearing of any referenci'. but the costs so incurred shall not be allowed on taxatimi unless the registrar shall certify that the attendance of coun- sel was nec^essary. 127. AVhen a reference has been heard, the registrar shall draw up a report in writing of the result, showing tlu' (1) The Mavmoth, 9 P. D. 126. (2) Questions of law cannot be referred. 77ie Ocean, 10 Jur. ')Ofi; I'lit the registrar may be directef' to observe particular principles of litw. 2'/if St. Clou4, Br. & lush. 19. I 11 -J I 1 ^- THE ADMIRALTY KULES, 18!»:5. iiinount, if any, t'ouiicl duo, and to whom, toi::otlier with any iiirther ])arti<'nlai-s tliat may lio nt'ccssary. A form of the report will he founort is ready, notice shall he sent to the parties, and either party may ther^'Upon take np and tilr the re[»ort. 12i^». AV^ithin fn-o irrd.-x from tiie tilinu" of the rei^istrar's report, either party may tile a notiee of motion to vary the report, speeityint;' the items ohjeeted to. 180. At tlie hearing; of tlie motion tlie indite irir.v make such order thereon as to liim sliall seem lit, or may remit tin' matter to tlie re^'istrar for fnrther intiuiry or report. 131. If no notice of motion to vary the rejiort is filed within ii'o irci'k.s from tiling" tiic registrar's report, the report sliall stand eontirmecL COSTS. l']2. In general costs shall follow the result ; hnt the judge may in any case make such order as to the costs as to him shall seem tit (1). 133. The judge may direct payment of a lump sum in lieu of taxed costs. 134. If any plaii^titf (other tlian a seaman suing for his wages or for the loss of his clothes aiul ettects in a collision), or any d.fendant making a counter-claim, is not resident in the district in which the action is instituted, the judge may, on tlie ajiplication of the adverse party, order him to give hail for costs (2). 135. A party claiming an excessive amount, either ])y way of claim, or of set-ot^" or counter claim, may he condemned ill .11 costs and damages therehy occasioned (3). 130. If a tender is rejected, hut is afterwar.''•• ■' i. 436 VICE-A DMIRALT Y REPOKTS. tender shall, unless the ju(lo:e shall otherwise order, he con- demned in the costs incurred after tender made (1). 137. A party, who has not admitted any fact which in the opinion of the jud^e he ought to have admitted, may he condemned in all costs occasioned hy the non-admission. 138. Any party pleading at unnecessary length, or taking any unnecessary proceeding in an action may he condemned in all costs therehy occasioned. TAXATION OF COSTS. 139. A party desiring to have a hill of costs taxed shall iile the hill, and shall procure an appointment from tlie registrar for the taxation thereof, and shall serve the oppo- site party with notice of the time at which such taxation will take place. 140. At the time appointed, if either party is present, the taxation shall he proceeded with. 141. "Within o)h: week from the comi)letion of the taxation aitplication may be made, by either party, to the judge to review the taxation. 142. Costs may be taxed either by the judge or by the registrar, and as well between solicitor and client as between party and party. 143. If in a taxation between solicitor and client more than otte-sixth of the bill is struck otf, the solicitor shall pay all the costs attending the taxation. 144. The fees to be taken by any district registrar shall, if either party desires it, be taxed by the judge. APrRAISExMENT AND SALE, ETC. 145. The judge may, either before or after final judgment, order any property under the arrest of the Court to be ap- praised, or to be sold with or without appraisement, and either by public auction or by private contract, and may direct what notice, by advertisement or otherwise, shall be given or may dispense with the same (2). (1) See R. 85. The William Sym- iiujlop, 10 P. D. 1. (2) T"^? cargo ex Vtnua, L. R. 1 A. & E. 50. The Paul, L. R. 1 A. & E. 67. ^1 THE ADMrUALTY PvrLEJ!^, 1808. 14«i. Tf tho |»roperty is detorionitiiig in vahu', the jinli^c may order it to be sold tbrtlnvith. 147. It" tlie property to be sold is of small value, the judffe may, it" bo thinks tit, order it to be sold without a eoniinis- sion of sale being issued. 148. The judge may, either before or nfter final judgment, order any proi)erty under arrt-st of the Court to be removed, or any eargo under arrest on l)oar(l ship to be discharged. 149. The appraisement, sale, and removal of property, the diseliarge of eargo, and the demolition and sale of a vessel eoudemued under any Slave Trade Act, shall be effected under the authority of a eommissiou addressed to the marshal. Forms of commissions of appraisement, sale, aitpraisement and sale, removal, discharge of cargo, and demolition and sale, will be found in the Appemlix hereto, Xos. 44 to 49. 150. The commission shall, as soon as possible after its execution, be filed bv the nuirshal, with a return settiiiir forth tlie manner in which it has been executed. 151. As soon as possible after the execution of a commis- sion of sale, the marshal shall pay into Court the gross pro- ceeds of the sale, and shall with the commission file his accounts and vouchers in su[)port thereof. 152. The registrar shall tax the marshal's account, and shall report the amount at which he considers it should be allowed ; and any party who is interested in the proceeds may be heard before the registrar on the taxation. 153. Application may be made to the judge on motion to review the registrar's taxation. 154. The judge v\Ay, if he thinks fit, order any property under the arrest of the Court to be inspected. A form of order for inspection will be found in the Appendix hereto, Xo. 50. DISCONTINUANCE. 155. The plaintiff may at any time, discontinue his action bv filiuff a notice to that effect, and the defendant shall 437 ^^5 ,f ^X-'. 438 VI(M^:-AT)M IK A LT Y KKIM )RTS. tliereupon Itc ciititlcd to have judi^niciit ontori'd tor his costs ot'jK'tioii on tilinu: a notice to enter tlie same. Tlie discon- tinuance of an action \>y t\\v. plaintiti shall not prejndice aiiv action consolidated therewith or any conntei'-claini prexi- ously set u\t hy the defendant. Forms of notice of discon- tinuance and of notice to enter jndi:;ment for costs will he found in the Api)en(lix hereto, Xos. 51 and 52 (1). COXHKNTS. l')(). Any consent in writinu; siirncd hy the ]tarties may. hy permission of the reijjistrar, he tiled, and sjiall thereupon become an order of court. CEIITIFK'ATK OK .STATK OF ACTION. 157. Ujion the application of any |)erson the rciristrar shall, u})on payment of the usual fee, certity as shortly as he conveniently can, the several proceedings had in his oiHcc in any action or matter, and the dates thereof. APPEAL FROM THE J llxiMEXT OR ORDER OF A LOCAL JFDCE IN AD.MIRALTY To THE EXCHEQUER COIRT. 158. Any person who desires to ai»peal to the Kxche([Ucr Court, from any judu;ment or order of a local .judj^e in Ad- miralty of the said Court, shall i^ive security in the sum of two hundred dollars if such judi;'ment or order is final, or if interlocutory, in the sum of one huiuh'ed (h)llars, to the satisfaction of such local Judi^e, or of the Judge of the Ex- ehecpier Court, that he will ettectually prosecute his ap- jieal and pay such costs as may he awarded against him hy the Kxchequer Court. If the a[)peal is hy or on behalf ot the Crown, no security shall be necessary (2). 150. All appeals to the Kxchequer Court from any judg- ment or order of any local judge in Admiralty of the Court shall be by way of rehearing, and shall he brought by notice of motion in a summary way, and no }»etition, case or other formal proceeding other than such notice of motion shall be necessary. The ap[)ellant may by the ,'ith (1) The J. H. Menkes, 12 P. D. 106. The Hope, 8 P. D. 144. (2) The Duke of Bucdeuch (1892), P. 201. TIIK ADMIRALTY HTLKS, 1893. 439 AL Jl'D(il-: notice of motion appi-al from the wiiolc or nuy part of any judifmont or order, aiul the notice of motion sliall stato wlu'tlicr the whok' or part only of snch jndijnient or (trder is eomphiined of, and in tiie hitter case shall specify sntdi part. A form of notice of motion on appeal will he lountl ill the Appendix hereto. No. 5^5. KiO. The notice of ajqieal shall he served upon all parties directly atfected hy the a}»pea!, and it sliall not he necessary to serve [)arties not so atfected; hut the Ivxcheipier Court may direct notice of the ajjpeal to he served on all or any jiarties to the action or other proceeding, or u[)on any per- son not a party, and in the meantime may postpone or adjourn the hearinin; of the appeal u[)on siudi terms as may lie just, and may give siudi judgment and make siudi order as might have heen given or made if the [lersons served with sucdi notice had heen orin-inallv i)arties. Anv notice of appeal may he amended at any time as the Kxchecpier Court may think tit. 1(31. Notice of ap[)eal from any judgment, whether iinal or interlocutory, or from a tinal order, shall he a lircnfi/ (hii/s' notice, and notice of ai>[)eal from any interloeutory order shall he a fen dai/i:' notice. 1(52. The Exchequer Court shall in any appeal have all its powers and duties as to amendment and otherwise, together with full discretionary power to receive further evidence iijion (juestions of faet, — siudi evidence to he either hy oral I'xamination in Court, hy atftdavit, or hy deposition taken liefore an examiner or commissioner. 8u(di further evidence may he given without special leave upon interlocutory aiipli- lations, or in any case as to matters whicdi have occurred after the date of the decision from whicdi the api)eal is lirought. irpon appeals from a judgment after the trial or iiearing of any cause or matter upon their merits, such further evidence (save as to matters suhsecpient as aforesaid) shall he admitted on s[tecial grounds only, and not without s[iecial leave of the Court. The Court shall have power to draw inferences of fact aiid to give an}- judgment and make any order wdiich ought to have been given or made, and to 440 Yr('K-Ar)>rTRALTV KKrOPvTS. iiiJike siK'li t'lU'tlu r oi- otlu'i- order us the csiso iiiiiv r(M|iiiic. Tlie 1 towel's at'orc'said miiy l»e exereise(l by the snid Cuiirt. iiotwithstiiiidiiij.'- that the notieo of ajipeal may he that parr otdy of the deeisioii may l»e reversed or varied, and siicli power may also he exercised in favor of all or any ot the respondents or parties, althouirh sueli resjiondi'nts or jiartios may not ha\e appealed from or eomplain.'d of the (K'eision, The Court shall have power to make sneh onler as to the wliole or any \nnt of the eosts of the apjieal as may he just. lO'}. rf, ui)on the hearing:; of any apjieal, it shall ajipear to the Kxehecpier ('onrt, that a new trial ouiflit to he had, it sliall he lawful for the said Coui't, if it shall think fit, t

    eal, to contend that the decision of the local judge in Admiralty should he varied, he shall within tlie time speci- fied in the next rule, or sut'h time as may be prescribed In special order, give notice of such intention to any parties who may be etfeeted by such contention. The omission to give such notice shall not in an}- way interfere with the power of the Court on the hearing of the appeal to treat the Avhole case as open, but may, in the discretion of the Court. be ground for an adjournment of the appeal, or for a special order as to costs. 105. Subject to any special order which may be made, notice by a respondent under the last p»receding rule shall, in the case of any appeal from u final judgment, l)e a four- teen diuj,^^ notice, and, in the case of an appeal from an inter- locutory order, a seven dajjs' notice. 166. The party appealing from a judgment or order shall produce to the registrar of the Kxche(pier Court the judu- ment or order or an office copy thereof, and shall leave witli him a copy of the notice of appeal to be filed, and such officer shall thereupon set down the appeal by entering tin.' same in the proper list ot appeals, and it shall come on tn TIIK AJ)MIKAI/rV liTLKS, 1H!»;>,. 441 be lioanl iiccordinu: to its onli-r iti such list uiiluss tlu' Jndu'c dt'tlu; Kxcliocnu'i- Court shall otherwise direct, ImU so as not to come into tin- jtaiier tor heariiiij: het'oro the day iiaiiieil in the notice ot'a|iiieai. 1(!7. Wheri' an <.'• purli' a|i])Iicalion has l)een ret'iist'd l»y tlic local jndire in Adniiralty, an application tor a similar purpose nuiy he made to the Kxche(pU'r (\)nrt ix /mr/i' within /(// (/iii/s t'rom the date of such refusal, or within such viilaru;ed time as the Jud*;!' ot the Kxcheipier Court may IllloW. 1(!S. When any question of fact is involved in an appeal. tlic i!vidence taken hefore the local jud.i^e iu Admiralty hciiriui; on such ([Uestion shall, suhject to any special order. !»(' hroui;ht hefore the KxcluMpier Court as follows: — (a) As to any evidence taken hy affidavit, hy the produ<- tion of printed copies of such of the afH. Where evidence has not heen printed in the proceed- iiiLTs hefore the local iiidire in Admiraltv, the local iudije in Admiralty, or the Judge of the Exchecpier (\)urt, nniy order tlic whole or any part thereof to he printed for the pur[>osc of the appeal. Any i)arty printing evidence for the purpose of an appeal without such order shall hear the costs thereof, unless the judge of the Kxche(iuer C^ourt shall otherwise order. 170. If, upon the hearing of an ai)peal, a ({uestion arisi- as to the ruling or direction of the local judge, the Ex- ciiecjuer Court shall have regard to verified notes or other evidence, and to such other materials as the Court mav peal to the Exchequer Court no interlo- cutory order or rule from which there lias heen no appeal sliall operate so as to har or prejudice the Exchequer Court from giving such decision upon tlie appeal as may he just. '■'. I s«i 442 .i#i. Vl(;ivAI)MlUALTY KKI'Oirrs. 17-. No iii»|K!al to the FiX('lu't IukI notice thereof, and in all (;ther cases, tVom tlu- time at whirli the judiiinent or order is sii^ned, entered, or otherwise |h'1- fected, or, in the case of the refusal of an application, lidiii the date of such refusal. 178. An appeal shall not operate as a stay of execut ion di' of procoedin^ifs under the decision appealed from, excejit so far us the local jud<;-e in Admiralty, or the Kxche(|ner ("oiirt may order; and no intermediate act v.v [trocecMlinii' shall lie invalidated, exci'pt so far as the jud^'e of the Iv\cliei|ii(i' ('ourt nniy direct. 174. Wherever under Rules loH to 176, an application may he madi! either to the local jud;e thereoi', it shall he niadf in the tirst instance to the local judi^'e in Admiralty. 175. Every aj»[ilication in respect to any ajipeal to the Kxche([uer Court or the judge thereof shall he hy motion. 17t). On ai»peal from a local judge in Admii'alty, intc re: for such time as execution has he'jn delayed by the appeal shall 1)1' allowed unless the local judge otherwise orders, ami the taxing officer may comi»ute such interest without any order for that pur[)ose (1). I'AYMKNTS INTO COI'KT. 177. All moneys to he paid into Court shall he paid, upon ahle orders to lie ohtained in the rei^istrv, to the iic- receivi count o Canada to he approved hy the judge, or, with the sanction f the reuistrar at some haidc in rhe Dominion ot (1) As to appeals to Privy Council see ante, p. 65. TIIK Al)Mll{AI/^^■ IMLKS, \H\v.\. it' tlu' Ti'casiiry lioard, into tin- 'rrciisiiry ot' the Dotiiiiiioii. A Inriii of rccriviiltU' onU'c will he liniiitj in tlic ApiKiitlix |R'iTt(», No. ')4 I ). 17H. A bank or 'ri-i-asiirv i-cctl|i1 tor tlic aiiioimt slnill lio tiled, ami tljt'i'.'ii|ioii tlu payiiiciit into Court sliall lie tlct'iiu'd to 1)L' (.'oiiii-K'tr. PAY.MKNTS HIT nl' nilHl'. 17!K No nioncv shall Ix.- paid out ot" Court cxccjit upon ;in iii'dor ^ilrnl•d l»y the jiidiff. ()n siijiuni!,' a ri-ccipt to he |)r<'- parcil in tin.' retristry, the pai'ty to whom the mom-y is pay- aliki under tin- oi'dcr will ivceive a cluMpU) for the amount 'ii^nc'd hy the rc'i:;istrar, upon the hunk in widcdi th. money lias heen lodifed, or an or(U'r ui»on the Treasurer in sndi I'lriM as liu! Treasury IJoard >hall direct. A torm ot onler ti)r payment out of Court will ho iound in tlio Appendix luTotO, No. OiJ ['!). CAVKATS. 180. Any i)orson desirinif to [irevent the arrest of any jtro- ty may file a notiee, uuiK'rtakiuu', within fhrtr dai/.^ Iter heiu!». 182. Any person desirinn' to ])revent tlu; payment of money out of Court shall tile a notice, and tlu'reujion tl)e rc!,dstrar shall enter a caveat in the caveat pa /ment hook lici'ciuafter mentioned. Forms of notice and ot caveat l>ay- iiieiit will he fouiul in the Ap[»en(lix hereto, Nos. 60 and 61. 44:1 a '[ (1) Wms. & Br. (ed. 1886), p. 292. (2) The Annie ChiUh, Lnsli. .509. 'The Edmond, Lush. 211. The Xorth American, ibid 79. Wms. & Kr. (ed. 1886), p. 292. eff:JtsffKrRag3ggair. .1 ' i' 444 VlCK-ADMIIiAI/rV KKlMUrrs. 1H:1 Tf tlio iicrsoii cDtiTliiu- a i-avcat is not a jiarty tn tin acti )ii. tlu> iKitifc sliall stat*- liis naiiK> aixl ass, iiti<| aii address witliiii tlii'cc iiiiU's of tlu' rci^isirv at which it -.Im!! he siillicic'iit to K'avi' all (hx-imii'Mfs rc(|nired to hi' m rvdl u|)oii him. 1M4. 'V\\v c'litiT of a caNi'Mt warrant shall not iircNtni tin issue ot" a warrant, hnt a |iarty at wiioso instance a Wiunint nhall he issue(l f(»r the arrest of anv itro|K'rty in resinct ni which there is a caveat warrant ontstandini;, shall he cun. « ho shall show to the satisfaction of the Jndi:;e iit- licient reason t(» tlu' c()ntrarv. • 1,S"). The party at whose instanoe a eavoat release or cm- <'ut payment is entered, shall he condemned in all costs ainl > tuonlliS from the thite of enterinij the same. 187. A caveat may at any time he withdrawn hy the per iuon at whose instance it has lieen entered, on his lilinir a notice withdrawiuir it. A form of notice of withdrawal will l)e found in the Aitpendix hereto, No. 02. 188. The judge may overrule any caveat. St:i5P 4 IP n VIClvADMIKALTY JiEl'OKT.S. INSTRUMKXTS, ETC. 197. Every waiTJiiit, release, o<)junii:^sion, attuohment. and other iiu.trumeiit to be executed l»y any otfieer of, or ((Hii- missioiior actiiii; under antliority of, the Court, sliall Ix- |ii(.. pared in the rei>istry and sii>;ned by the rei:;istrar, and shall be issued under the seal of the Court. 198. Every document issued under the seal of the Court shall bear date on the day of sealing and shall be det'iind to be issued at the time of the sealinif thereof. 199. P^very document re(iuirin<>- to be served shall lie served within /irclrc niitnilis trom the date thereof, otlnTwisr the .service shall nor be valid. 200 Every instrument to be executed by the marslial shall be leit with the marshal by the party at whose in- stiince it is issued, with written instructions for the cximu- tion thereof NOTICES FROM THE KEOISTKY. 201. Anv notice from the rcii-istrv mav be either Icit ai. or sent by post, by registered letter, to the address for ser- vice of the i)arty to whom notice is to be i!:iven; and the day next i'.fter the day on which the notice is so j^osted shall Ik considered as the day of service thereof, and the jiostiiii:' thereof as aforesaid shall be a sufficient service. riLiNij. 202, Documents shall be tiled by leaving the same in tlir registry, vitli a minute stating the naiuare of the docnniciit and the date of tiling it. A form of minute on liling any document will be found in tlie Appendix hereto. No. (30. 20^3. Any <:umber of documents in the same action may be tiled with one and the same minute. TIME 204. If the time for doing an^' act or taking any procciMJ- ing in an action expires on a Sunday, or on any other day on which the registry is closed, and by reason thereof siicii act or proceeding can not be done or taken on that day. it may be done or taken on the next day on which the registry is open. TIIK ADMIKALTV UrL.^t?, 1808. 205. Wliei'< , l»v tlu'so rules or bv aiiv order made under tlu'iii, any act or itroceodiug is ordered or allowed to be (lone witbiu or atter tbe expiration ot' a time limited from (ir atter any date or event, such time, if not limited by hours, siiall not include tbe day of sucli date or of tbc liaiipeiiini:; of such event, but shall commence on the next tollowini; day. '20(5. The judtce may, on the application of either party, lularii'e or abridy'e the time })rescribed by these rules or forms or by any order made under them for doini;^ any act or tukin*; any proceeding:, ni>on sncli terms as to liim shall seem fit, and anv such enlar<;ement mav be ordered althou«ih the application tor the same is not made vtutil sK'ter the ex- piration of the time prescribed. SITTIXOS OF THE COURT. 207. The judge shall appoint j)ro])er and convenient times for sittinu:s in court and In chambers, and may adjourii the [iroeeedini^'s from time to time and from place to place as to him shall seem tit. RE(;iSTRy AND RE(iISTRAR. 208. 1 lie registry shall be open to suitors during fixed hours to be appointed by the judge. 20!l, The reuiistrar shall obey all the lawful directions ot the judge. He shall in ])erson, or by a dei>uty approved ot liy the judge, attend all sittings whether in court or in cliambors, and shall take nrinutcs of all the proceedings, lie shall have the custody of all records of the Court. He riliali iiov act as counsel or solicitor h) the Court. MARSHAL. 210. The marshal shall execute by himself or his officer all instruTuents issued frorii the Court which are addressed to "aim, jind shall nudlaintiff, the expres- >ion "sum in dispute" shall mean the sum recovered by liini in addition to the sum, if any, counter-claimed from him by the defendant; and where costs are awarded to a (h't'dulant, it shall mean the sum claimed from him in addi- tion to the sum, if any, recovered by him. 22t!. The judge may, in any action, order that half fees oi'iv shall be allowed. (.1) The Ms, 8 P. D. 227. I \ DD 450 VICIE- ADMIRALTY REPORTS. 227. If the same practitioner acts as both counsel and solicitor in an action, he shall not for any proceedinif lu' allowed to receive fees in both capacities, nor to receive a fee as counsel where the act of a solicitor only is necessurv. CASES NOT PROVIDED FOR. 228. In all cases not provided for by these rules, the prac- tice for the time being in force in respect to Admiralty proceedings in the High Court of Justice in England shall be followed. COMMENCEMENT OF RULES. 229. These rules shall come into force on the day on which notice of the approval thereof by His Excellency tho Governor-General in Council, and by Her Majesty in Council shall be published in the Canada Gazette, and shall apply to all actions then pending in the P]xchequer Court of Canada on its Admiralty side, as well as to actions commenced on and after snch day. REPEALING CLAUSE. 230. From and after the day on Avhich the notice of tlio approval of these rules by His Excellency the Governor- General in Council, and by Her Majesty in Couiicil, is published in the Canada Gazette, the following rules and regulations, together with all forms thereto armexed, and the table of fees now in force in the p]xchequer Court in Admi- ralty proceedings, shall, in respect to any such proccedinu' in such Court, be repealed : (a) The rules and tables of fees for the Vice-Admiralty Courts established by an Order of Her Majesty in Couneil of the 23rd day of August, 1883 ; and (6) The rules and regulations and the table of fees previ- ously in force in the Maritime Court of Ontario, and made by the judge of such Court on the 31st day of Jaiuniry, 1889, and approved by His Excellency the Governor-lienera! in Council on the 14th day of February, 1889, and all rules of the said Maritime (Jourt of Ontario. Dated, at Ottawa, this 5th day of December, A. D. 1892. GEO. W. BURBIDGE, J. E. a THE ADMIRALTY lU LES, 1808. 451 APPENDIX. I. FORMS. No. 1. Title of Coikt. In the Exchequer Court of Canada. In Admiralty. or {if instituted in a District Registry) In the Exchequer Court of Canada. The Quebec (or as the case may he) Admiralty District. Rule 4. No.. Xo 2. Title of Action in rem. ITitle of Courf] {here insert the number of the aetion.l A. B., IMuintift; against Rule i. (a) The Ship_ or (b) The Ship or (c) The Ship. and freight, .her carffo and freiffht. or (f the action is against cargo only), (d) The cargo ex the Sliip [state name of ship on board of v^hich the cargo note is or lately was laden.^ or {if the action is against the proceeds realized by the sale of the ship or cargo), {e) The proceeds of the Ship or (/) The proceeds of the cargo ex the Ship . or 08 the case may be. Action for [slate nature of action, whether for damage by col- lision, wages, bottomry, etc., as the case may be.'] 'Si h 452 VIC K-ADMIR ALT Y ]{EP0RT8. No. 3. Ji^^ei. Title of Action in personam. [Title of Court] No.-_ [ha'e insert the number of the action,] A. Ji., Plaintiff .Ti^aiiist Tlie Owners of the Ship , [or as tlie case may be.] Action for [state nature of action as in preceding form.] Eule 4. Bale 5. Xo. 4. Title of Action in the XaiMe of the Crown. [Title of Court.] Xo. [insert number of action. Our Sovereign Lady the Queen. [add, where necessary, in Her Otftce of Admiralty.] against (a) The Ship, ., [or as the case may be], or. (b) A. B., etc. [the person or j)er8ons proceeded against.] Action for [staie nature of action.] Xo. 5. Writ of Summons in rem. (l. s.) [Title of Court and Action.] Victoria, by tlie grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India. To the owners and all others interested in the Ship . [her cargo and freight, etc., or as the case may be.] We command vou that, within one week after the service of this writ, exclusive of the day of such service, you do cause an appearance to be entered for you in our Exchcipier THE ADA[IIiALTY RULES, 1893. Court of Canada in the ahove-named action ; and take notice that in default of your so doing the said action may proceed, and judgment may be given, in your absence. Given at Ottawa [or as the case may be] in our said Court, under the seal tliereof, this day of 18 Memorandum to be subscnbed on the Writ. This writ may be served within tivelve months from the date thereof, exclusive of Jie day of such date, but not afterwards. The defendant [or defendants] may appear hereto by entering an appearance [or appearances] either persojially or by solicitor at the registry of the said Court sitiuite at Ottawa [or as the case may be]. 453 Xo. 6. Writ of Summons in personam. [Title of Court and Action.] (l.s.) Victoria, by the grace of God, etc. To a D., of , and E. R, of _ Rulo 5. We command you that, within one week after the service of this writ, exclusive of the day of such service, you do cause an appearance to be entered for you in our Exchequer Court of Canada, in the above-named action ; and take no- tice that in default of your so doing the said action may proceed, and judgment may be given, in your absence. Given at Ottawa [or as the case may be] in our said Court, under the seal thereof, this day of 18 Memorandum to be subscribed on the Writ. This writ may be served within twelve months from the date thereof, exclusive of the day of such date, but not afterwards. The defendant [or defendants] may appear hereto by entering an appearance [w appearances] either personally or by solicitor at the registry of the said Court situate at Ottawa [or as the case may be]. 454 VICE-ADMIHALTY REl' )RTS. h ^'^' Xo. 7. Ri.ii* .1-20-23. AVrit of Summons in personam for Service out of Jurisdiction. (l.s.) [Title of Court and Aclion.'l Victoria, by the grace of God, etc. To C. /)., of E. R, of. We conninind you that within {here insert the number of days directed by tlie judf/e ordering the service or notice) after the service of thin writ {or notice of this writ, as the case may be), oil you, inchisive of the ve nnniL-d action, and take notice that i'l default of your 80 ■ (lie cnsc nui// hc^ to tlu> ship "Mary," at tho port of oti tho (hiy ,((■ , and for costs [and the phiintitts chiim to haxf ail account tailiil) a.u:ainst CD., owner of l»!-(j4th shares of the same shiji. (9) Mortgage : Tiie plaintitt", nnder a mortga«je dated the (lay of , elaims ae], the sum ot $ ---, as the amount due to him for principal and interest, and for costs. (10) Claims between Co-Owno's : (a) The plaintitt, as part owner of the ship " Mary," claims ai;ainst C D., part owner of the same shij), the sum ot .S , as part of the earnings of the said ship due to tlie phuntift, and for costs ; and to have an account taken thereof. (6) The [)laintiff, as owner of 24-tH(!e of Adiiiirultv. (13) Piraci/: A. i^.,coiiiiiiaii(K'r(»f II. M. S. " Torch, " claims to have the ( 'hiiu'sc jimk " Tccmiisoh " and her car^o condemned as tor- feited to Jler Majesty as having heen captured from pirates. (14) Slave Trade: ^.yv.,commanderofir. M.S. "London," claims to have tin- vesssel, name unknown [toij(!ther with her cary-o and twelve slaves] seized hy him on the ilay of IH londi'inned as forfeited to Her Majesty, on the ifromid tli;it the said vessel was at the time of her seizure eiii^ai^ed in <»r titted out for the slave trade, in violation of existiiii; treaties hetweeii (ireat Britain and Zanzihar [or of the Act .") (leo. [\\ c. 113, or as the case may be]. or C. D., the owner ot the vessel . [and carf?o, or (IX the case mai/ he] captured hy H. M. S. "London" on the day of 18 , claims to liave the said vessel [and carii;o, or as the case may be] restored to him [in- •rether with costs and damages for the seizure thereof]. (!.')) I'nder Pacific Islanders Protection Acts: A. B., as commander of 11. M. S. " Lynx,'' claims to have the British shi\» "Mary" and her cargo condemned as for- feited to Her Majesty, for violation of the Pacitic IsUiiulers Protection Acts, isT'J and 1875. (10) Under Foreign Enlistment Act: A.B. claims to have the British ship " ^^ary," together with the arms and munitions of war on hoard thereof, condemned as forfeited to Uer Maj(.'sty for violation of the Foreign Kii- listment Act, 1870. (17) Under Customs Act^: A.B. claims to have the ship " Mary " [or as the case may l>c] condemned as forfeited to Iler Majesty for violation of [state Act under which forfeiture is claimed]. TllK AOMIUALTV KILK^, 1h'J3. (18) Recovery of pecuniary forfeHxire or penalty : A. B. claims jiulifiiuMit u^aiurtt the (K'ti'iidaiit tor [MMialticfl for violation oi' [nlate Act nndei' which penalties are claimed]. 46}^ No. 11. AffiD/WIT of Skrvick (tF A Whit of Si mmons. [Title o/ Court and Action.] County of - , \ T, A. B., of in tlie County of Itule 18. [i'dllinf/ or oco\ipation] nnike oatli and way : 1. That r (lid on t\w. day of 18 stivo the writ of sununoiiH licn'in by [here state the mode in which the service was effected, whdhei' on the owner, or on the ship, cargo or freight, etc., as the case may he] on ._ tho day of 18 ^ ^ (Signed) A. B. SwoHN before nie, etc. A Commissiona', etc. No. 12. Al'PEAKANCK. Kiile28. (1) By defendant in person. [Title of Court and Action.] Take notice tliat T appear in this action. Dated this ^.__ dav of 18 (Signed) C. D., Defendant. My address is Mv address for service is (2) By Solicitor for Def aidant. [Title of Court and Action.] Take notice that I appear for C. D. of [insa-t addre-ss of C. D.] in this action. Dated this day of 18 (Signed) X. F., Solicitor for C. D. 460 VICE-ADMIRALTY REPORTS. Bule 28. My place of business is My addres^ii for service is. Xo. 13. Indorsement of Set-off or counter-claim. The defendant [or, if he be one of several defendauU, tlie defer.dunt C D.] owner of the ship " Mary " [or as the case may 6e] claims from the pla'ntitf [or claims to set-off against the plaintiff's claim] the sum of for [state the nature of the set-off' or counter-rlaim and the relief or remedij required us in Forra No. 10, mutatis mutandis'], and for costs. No. 14. Rules?, Affidavit to Lead Warrant. [Title of Court and Action. ] I, A. B. [state name and address] make oath and say that I have a claim against the ship "Mary" for [state nature of claim.'] And I further make oath and say that the said claim has not been satisfied, and that the aid of this Court is required to enforce it. On the. _day of. .18_ the said A. B. was duly sworn to the truth of this affidavit at . (Signed) A. B. Before me, E. F., ^c. or Where the Action is in the name of the Crovm, I, A.B., &c. [state name and address of person suing in thf name of the Crovn] make oath a .d say that I claim to have the ship " Mary" and her cargo [or the vessel, name un- known, or the cargo ex the ship "Mary," etc., or an the ca.'H' mail he] condemned to her Majesty ; — THE ADMIRALTY RULES, 1893. [a) as having been fitted out for or engaged in the Slave Trade in violation of [^8tate Act or Treaty alleged to have been violated] ; or (6) as having been captured from pirates ; or (c) as having been found derelict; or id) for violation of [state Act alleged to have been violated, or as the case may be\ I further make oath and sav that the aid of this Court is KMiuired to enforce the said claim. 4«11 <>n the day of_ .18_ the said A. B. was duly sworn to the ^ (Signed) A. B. truth of this aftidavit at Before me, E. F, etc. I .« (L.S.) Xo. 15. AVarraxt. [Jme of Court and Action.] Rule 40. \ rCTORIA, ETC. To the Marshal of the Admiralty District of [or Sheriff of tlie County of or as the case may be]' AVc hereby command you to arrest tlie ship .. her cargo and freight, etc., or as the case may be], and to keep the same under safe arrest, until you shall receive further orders from us. (jivon at . in our said Court, under the seal thereof, this day of 18 V\' arrant Taken out by (Signed) E. R, Registrar [nr District Bcgistrar. as the case may be). 'm ii 11^ 462 VICE-ADMIKALTY REPORTS. Xo. 16. Buie44. Certificate of Service to be indorsed ox the Warrant AFTER Service thereof. This warrant was served bv [date by whcna and in ichut mode service was effected] oik the day of 18 (Signed) G. H. Marshal of the Admiralty District of [or Sheriff of the County of , or as the case may be]. «'"ii*i S«!? S-. Xo. 17. Rule 46. BaILBOND. [Title of Court and ActioiiJ] Know all men b\- these presents that we [inserf names, ivU dresses, and descriptions of the sureties in full] hereby jointly and severally submit ourselves to the jurisdiction of the ^ai'l Court, and consent that if the said [insert name of party for whom bail is to he given, and state whether plainliff oi' defendant], shall not pay what may be adjudged against him in the above named action, with costs [or, for costs, //' bail is to Ix given onh/ for costs], execution may issue against us, our heirs, executors and administrators, goods and chattels, tor a sum not exceeding [state sum in letters] dollars. This Bailbond was siijned bv the said and the sureties, the day of^ Signatures of Suniit': _18 , in tlie registry of the Exchecpier Court of Canada [or as the ease inay be]. Before, me, E. F., Registrar, or District Registrar, [or clerk in the registry, or Commis- sioner to take bail, or as the ease may he]. THE ADMIRALTY RULES, 1808. 463 [L.S.] No. 18. Commission to Take Bail. uuiew. [Tidr of Court ami Acfkm.'] Victoria, &i'. To [state name arai description of Commissioner'], Greeting. Whereas in the above-named action hail is required to be taken on behalf of [i«to//' name of party for whom hail is to he (jliien, and whether plaintijf or defendant] in the sum of [state sum in h'ttn-s] dollars, to answer judgment in the said action. We therefore, hereby authorise you to take such bail on behalf of the said from two sufficient sureties, upon the bailbond hereto annexed, and to swear the said sureties to the truth of the annexed affidavits as to their sufficiency, in the form indorsed hereon. And we command you, that upon the said bond and affi- davits being duly executed and sig'.ied b}' the said sureties, jou do transmit the same, attested by you, to the registry of our said Court. Given at_ thereof, this ._in our said Court, under the seal day of ._ 18 __ (Signed) E. F., Registrar [or District Registrar]. Commission to take bail. Taken out bv Form of Oath to he Administered to each Suret//. You swear that the contents of the affidavit, to which you have subscribed your name, are true. So help you God. No. 10. Affidavit of Justification. [Title of Coiirf and Action.] T [state name, address, and description of s>iret>/], one of the proposed sureties for [sfnfi' name, addre'<-'^, and description of Rule 47. 464 / / ltl|:i| y' Rule 50. Rule 51. / VICE-ADMIR VLTY REPOliTS. person for irhom. hail is to he (jicm^, make oath and ssay thai 1 am worth more tlian the sum of [statr in letters tin sum in ir/iich bait is to be giceu'l dollars, after the payment of all mv debts. On the day of __._ 18 , the said was dnly sworn to tlie truth of this affidavit at . . Before me, K F., Ke.'., Plaintitt*. 467 Defence and Cointer-claim. [7tV/r ()/ Court itiiil Act(()ii.'\ 1. The defendants are the owners of the Swedish barque *' Atlantic," of 988 tons register, carrying a crew of ninete«'n hands all told, and at the time of the circumstances herein- after stated bound on a voyage to Cardiff. 2. A little l)efore 0.30 \^. m., of the 31st January, 1878, the "Atlantic '' was about fifteen miles S. P]. by S. of the Lizard. The wind was K X. K. Tlie weather was ha/y. The "Atlantic," under foresail, fore aiul main topsails, nuiiu top-gallant sail, and Jib, was heading about W. S. W., nuik- inc: from five to six knots an hour with her rei'ulation liu-Jits duly exhibited and burning, and a good lookout being kept on boaru her. 3. \\\ these circumstances the red lijirhts of two vessels were observed pretty close together, about half mile oft", and Irom two to three points on tiie starboard bow. The helm of the "Atlantic " was put to port in order to pass on the j»ort sides of tliese vessels. One, however, of the vessels, which was the "Anthes," aliered her course, and exhibited her green light, and caused danger of collision. The helm of the "Atlantic " was then ordered to be steadied, but before this orler could be com[»leted was put a hard-a-port. The "Anthes " with her starboard side by the main rigging struck the stem of tlie "Atlantic " aiul shortly afterwards sank, her master and four of her crew being saved l)y the "Atlantic." 468 VICE-ADMIRALTY KEPOKTS. 4. Save as hereinbefore admitted, the several statements in the statement of chiim are denied. ;'). The "Anthes " was not kept on her course as required by hiw. 6. The helm of the "Anthes " was improperly starboarded. 7. The collision was caused l)y one or both of the thin*!;s stated in the iifth and sixth paraijraphs hereof, or otiierwi>e by the negligence of the plaintitts, or of those on board the "Anthes." 8. The coll* 'on v-^- no caused or contributed, ro by the defendp.n'. , cr '>y hu.. of L.ose on board tne "Atlantic." And by wpv ct >■ ;:'!V<:r-claim, the defendants say They have ^uft'erv ■. Treat damage by reason of tlie collision. And they claim as follows : 1. Judgment against the plaintiff (and his bail) for tlie damage occasioned to the defendants by the col- lision, and for the costs of this action. 2. To have an account taken of such damage with the assistance of merchants. 8. Such further and other relief as the nature of the case may require. Dated the day of 18 (Signed) C. D., etc., Defendants. Reply. [Title of Courl t about 2 a. rii., on tlio 4tli day of Seiiteinl)or, ]87«>, the p^ iiinsliip " ^,ll■pc6 tMi.s rcijister, and 22.') hors(^ ^owoi, of which the phiintitt: wore owners, wliilst on u vowifijc from Shanghai and other i)ort8 to London, with a cargo of teiv and ouier good.s, was about eighty miles soiith- weBt of Ushant. 2. The wind at such time was about south-west, the woather was a little ha/-y, and occasionally slightly tiiick. and the *'Saipedon" was under steam and sail, steering north-east, and proceeding at the rate of about ton knots per hour. Her proper regulation masthead and side liglits were duly exhibited and burning brightly, and a good look- out was being kept. i]. At such time the masthead and red lights of a steam vessel, which proved to be the above-named vessel " Julia l);ivid," were seen at tho distance of about two miles from aid ahead ot the " vSarpedon," but a little on her jiort l)OW. The helm of the " Sarpedon " was ported and hard a-ported, but the " Julia David " opened her green light to the "Sarpedon," and although the engines of the " Sarpedon "' were immediately stopped, and her steam wliistle wa.' blowii, tlie "Julia David" with her stem struck the "Sarpedon" on her port side, abreast of her red light, and did her so nnich damage that her master and crew were compelled to nliandon lier, and she was lost with her cargo. The "Julia David " went away without rendering assistance to those on board the " Sarpedon," and without answering sigps'ls which were made by them for assistance. 4. Those on hoard the "Julia David" neglected to keep a [iroper lookout. 5. Those on hoard the "Julia David" neglecied to duly port the helm of the "Julia David." 4»)0 470 VICE-ADMIKALTV KKPOUTS. 6. The liolm of the ".riiliu T)avi«l " was imiiroperly star- hoard ooiii|.lv with the provision.* of ArticU- 16 of the " Kei^uhitions t'nr I'reventini; ('olli.sions at ^Sea." 8. Tlie said collision waH occasioned hy the inij)roiter and negliifent navii^ation of the "Julia David." The [ilaintifJ's claim — 1. A declaration that they are entitled to the daiiiaiXf proceeded for, and the condenination of the said Hteanisliip". Julia David," and the defendants thcrt- in, and in costs. 2. To have an account taken of such damage with tlic assistance of merchants. a. JSuch further and other relief as the nature of tlic case nuiv re(|uire. Dated the day of 18 (Siirned) A. B., dr., lMaintif!s. H Defence and Cointkii-claim. [Tlllf of Court fiiiil Arfloi).] 1. The defendants are the owners of the lieloanl how. The "didia David" was kept on her course. Hut after a short time the " Sar[>edon " opened her red lij^lit and caused (hiiiijer (if collision. The hehn of the "Julia David" was there- iijion [)ut hard a-port, and her en_i:;iiies stopped and ahuost immediately reversed full speed, hut, nevertheless, the "Sar- pcdon" came into collision with the " Julia David," strikiiiij: with the port side her stem and jtort i)ow, and doini; her considerahle damage. 4. The vessels separated immediately. The en her on her course. !•. Those on board the " Sarpedon " did not observe tlie jirovisions of Article Ki of the " liegulations for Preventing Collisions at Sea." 10. The collision was occasioned bv some or all of the matters and things alleged in the Oth, 7th, 8th and Hth }>ara- Lrra[ihs hereof, or otherwise by the default of the " Sarpedon," or those on board lier. 11. Xo blame in respect of the collision is attributable to tlie "Julia David" or to aii}' of those on board her. 471 472 VKMC-ADMlWAI/rV RKI'OHTS. Ami l>v way of countcr-cluiiii tlio (It'tV'ndjiiits nay tliiit flu- volIiHioii causi'd /.") Statement of Claim. [Title of Court and Action.'] Writ issued jS- 1. The "Asia" is an iron screw steamship of 902 tons net register tonnage, fitted with engines of 120 horse jiower nominal, is of the value of $ , and was at the time ot the services hereinafter stated manned with a crew of twenty-three hands under the command of George Hook Bawn, her master. 2. At about 9 a. m. on the 29th of Ai)ril, 1877, while the "Asia " — which was in ballast proceeding on a voyage to TlIK ADMIUAI/rV Kl'LKS, 1M!>8. Xiki>lii«'v to load u ciiri^o of trniin — wuh l)i't\v«'«'n Odi's.^ii 1111(1 Ocliiikov, thosi' on hoard lu-r saw ii stcaiiiMliip asliuiv oi\ ii hank situated aluuit ten ndlfs to the westward of'Ocliakov. Till' "Asia" iniincdiatcly steaini'il in tin- , >>:ei 474 VICE-ADMIRALTY REPORTS. '.t»?^ If 10. TIk' "Asi-r ste>.inieated the day of 18 (Signed) A. B., etc., I'laintitl'-. Defence. \Tif((' of Court and Action.'] 1. The detendants admit that the statement of facts con- faiiu'd in the statement of (daim is subsrantially correct. e.\c(|tt that the reshipment of tlie cargo on board the "Crosl»y ■■ was completed by 4 a. m. on the 30th April. THE ADMIRALTY RULES, 1893. 475 ■1. The tlefeiidants submit to the ju(l_<;Mient of tlie Court t(i award such a moderate amount of salvahiin- tirt's under the circumstances aforesaid as to the said Court >liall seem meet. (Signed) C. D., etc., Defendants. Reply. [ Title of Court and Action.^ The phiintitfs (k'uy the statement contained in the tirst jiaraifraph of the statement of dcfeiicc, that the slii[»ment of the cargo was completed by 4 a. m. <»n the 3(Uli April. Dated the . __ day of _ _ 18 (Signed) .4. 11., dc, IMaintitis. 1). (- Thr Xnrr»../hr) Statement ok Claim. [Title of Court and Actioii.'\ Writ issuec I 18 1. The " Emu" is a steam-tug l)cl()nging to the Whitby .^tt'umboat Company, of six tons register, with engines of 40 liorse power, nominal, and was at the time ot the cir- oiimstances liereinafter stated manned by a eiew of tivc hands. ■1. Just before midnight on the 22nd of duly. IHTt!, when thr "Emu" was lying in Whitby harbor, her master was iiit'tirmed that a screw steamslii[i was ashore on K'ettleness T'lint. He at once got up steam, Itut was not i.hle, owing tn the tide, to leave the harbor till abom 1.4.") a. m. of the •l:\vi\. ■). About 2 a. m. the "Emu"' reached the screw steam- ^liili, which was the " Xewcastle," whicii was fast upon the •ks, with a kedge and war| .ut. Th d le wind was ahou hiiiwin riiiud. t X.. g fresh ; the sea was smooth, but rising; tlu. tide wa? m 476 VICE-ADMIRALTV REPORTS. 4. The master of tho "Emu" offered liis services, whicli were at first declined by the master of the " Xewcastl*.' ; " shortly afterwards the kcdije varp broke and the " Xow- castle" swung square '.i[ton the land and more upon the rocks. The master of the " Newcastle " tlien asked tln' master of the "Emu" to tow hiin off, and after some con- versation it was agreed that the remuneration should Iw settled on shore. 5. About 3 a. m. those on board the "Emu" got a nijir from the "Newcastle" on board, and began to tow. Aftn- some towing this rope broke. The tow-line of the " Xcw- <'astle" was then got on board the " Emu," and the "Emu" kept towing and twisting the " X'ewcastle," but was unahl.' to get her off till about 5 a. m., when it was near high watiT. Tlie master of the " Emu" then saw that it was neccHsarv to try a click or jerk in order to get the "Newcastle" off, and accordingly, at the risk of straining his vessel, he gavt- a strong click in a northerly direction, and got the " New- castle" off. t). The master of the "Emu" then asked if the "New- castle" was making water, and was told a little only, but as lie saw that the hands were at the pumps he kcj)t the " I'hiiu" ])y the "Newcastle" until she was abreast ot Whit- by. He then in<|uired again if any assistance was wantetl. and being told that the "Newcastle" was all right, ami should proceed on her voyage, lie steamed the " Emu "" back into Whitby harbor al)Out 7 a. m. 7. About 8 a, m. a gale from N. E., which coiitinued al! that dav and the next, came on to blow with a high sea. it' the " Newcastle" had not been got off before the gale caino on she would have gone to pieces on the rocks. 8. By the services aforesaid the "Newcastle" and lur cargo and the lives of those on board her were saved from total loss. 9. The "Newcastle" is a screw steamship of 211 tons register, and was l)Ound from Newcastle to Hull with a general cargo and nineteen passengers. The value of tlif THE ADMIRALTY RULES, 1893. • N'eweastle," her cargo smd Ireiglit, ineluding passage money, are as follows : The '•Newcastle," $ ; her cargo, $ ; freight and passage money, $ ; in all, ^ . riaintitfs claim — 1. The condemnation of the defendants (and their bail) in such an amount of salvage remuneration as to the Court may seem 'y\^t, and in the costs of this action. 2. Such further and other relief as the nature of the case may require. Dated day of 1H (Signed) A. B., etc., Plaintiffs. 47T Defence. [Title of Court am/ Actio?}.] 1. At about 6.45 p. m. on the 22nd of July, 1876, the iron screw steamship " Newcastle," of 211 tons register, propel- led by engines of 45 horse j)Ower, and manned by twelve hands, her master included, whilst proceeding on a voyage Hum Newcastle to Hull with cargo and [)assetigers, ran lirnuind off Ivettleness Point, on the coast of Yorkshire. 2. The tide at this time ^'as the first quarter ebb, the i\oather was calm, and the sea was smooth, and the "Xew- ai^tlo," after grounding as aforesaid, sat upright and lay luito still, heading about K. S. E. Efforts were then made tit get the "Newcastle" again afloat l)y working her engines, I'Ut it was found that this could not l)e done in the then state "f tlu' tide. 8. At about 10 p. m. of the said day a kcdge, with a warp ^ittiiclied to it, was carried out from the '' Newcastle" ]>y one "f iicr own boats and dropped to seaward, and such wai-p \\ as afterwards hove taut and secured on board the "New- astir ■' with the view of its being hove upon when the flood "ide made. Several cobles came to the "Newcastle" from Ixunswick, and the men i!i them offered their assistance, but tht'ir services, not being required, were declined. m. I :. U*~ 478 VICE-ADMIRALTY REPORTS. I II 4. At about 2 a. ni. of tlie following morning tlic sti;uii tug " Emu," wlioso owners, master, and crew are the iilaiii- tiifs in this action, canie to the " ^^eweastle " an(K)ti«,'iv(| assistance, which was jdso declined. "). The tiood tide was then making, and by about 2.4.') a. m. the " Newcastle " had iioated ibrward, and attein[)r> were made to get the stern of the " Newcastle " also atloar. and the war[) attached to the aforesaid kedge was atteniiitt_(| to be ho*"' in, but the said warp having parted, the mast*.'!' of the " Newcastle " endeavored inettectually to make an agreement with the master of " Emu '" to assist in gottimr the " Newcastle " atloat, and at about 3 a. m. a rope was given to the " Emu " from the port bow of the " Newcastle." ajid directions were given to the " Emu-" to keep the lioail of the " Newcastle '' to the eastward in the same wav ar- it had l)een kept by the aforesaid kedge anchor and wai'ii. The " Emu " then set ahead and almost immediately tlir said rope was broken. A coir hawser was tlu'reupon givou to the " Emu," and those on board her were directed not td put any strain on it, but to keep the " Emu '" paddling ahead sufficient!}' to steady the head of the "Newcastle," andtn keep her head to the eastward. This the " Enni " did and continued to do until about 4.40 a. m., when the "New- castle," by means of her own engines, was moved ot^" from the ground, and the " Emu " was brought broad on the jiort bow of the " Newcastle, " and the "Emu " had to stop tow- ing and to shift the rope from her port bollard, where it was fast to her towing hook ; but tlie " Newcastle " contiiuiiiig' to go ahead, the said rope liad to be let go on board the " Emu,"" and it was then hauled in on board the " New- i'astle."' The " Newcastle " under her own steam, then commenced proceeding south, the wind at the time heiiit: N. N. W. and light, and the weather fine. It was atter- wards ascertained that the " Newcastle "' was making a little water in her afterhold, and her hand pumps were then worked, and they kept the " Newcastle " free. 6. The " Emu " proceeded back with the " Newcastle ' as i.n as Whitbv, and the "Newcastle"' then continued on THE ADMIRALTY RITES, 1803. her voyage and arrived in the lluniber at about 2.4") p. ni., ot the same day. 7. Duriiig- the time aforesaid the master, erew, and pas- >oni;ers of the "Newcastle" remained on board the "New- castle," and no danu^er was incurred in their so doiiiu'. 8. Save as herein appears the defendants deny the truth of the several statements contained in the statement oi' olaun. 9. The defendants have paid into Court and tendered to the plaintiffs for their services the sum of S , and have ottered to pay their costs, and the defendants subniir. that ijuch tender is sutticient. Dated tlie day of 18 . .. (Signed) C. D. etc., Defendants. 479 (3) 1)1 a)> Action for Distribution of Salnu/r : Statement of Claim. [^Tiile of Court and Action.'] Writ issued ^_.18 1. Describe bric^fty the scdrar/e serrices, stating the part taken in Ihetii by the plaintiffs, and the capacit>/ in tchicli they ircre serrin(/. 2. The sum of ^ has been paid by the owners of the shij), etc. \_stafe name of ship or other properf'f stdrid] to the (Iffendants, as owners of the shi[) [_s(afe name if sidrlny ship], and has been accepted by them in satistju.'tion of their claim for salvage, but the said defendants have not paid anciits : a. ('TAr PriiH-cssr) Statemkxt of Claim. \_Title of Court and Action.^ Writ issued . 18 . 1. The Pluiiititt, on tiie 10th day of February, 1877, was ajtpoiuted by the owner of the Britisli liarque " Princess,"' proceeded against in this action, master of the said l)iin[iR', and it was agreed l)etween the plaintitt and the said owiur that the wages of tlie phiintift as master should be $ j)er montli. 2. The pUiintiff acted, as master of the said l)arque from the said 10th day of February until the 25th day of ()ctol)er, 1877, and there is now due to him for his wages as master during that time the sum of $ . 8. The plaintift as master of the said barque expended various sums of money for necessary disbursements on ac- count of the said barque ; and there is now due to him in respect of the same a balance of $ . The plaintift' claims — 1. A decree pronouncing the said sums, amounting in the whole to f . , to be due to him fur wages and disbursements, and d:ri'ctinfr tlie said vessel to be sold and the amount due to him to Ite paid to him out of the })roceeds. 2. Such further and other relief as the nature of the case may require. Dated the . dav of 18 (Signed) A. B., Plaintift. b. (" The Norfhambrio:') Statement of Claim. [Title of C'lihi and Actier iiioiitli, and he entered into the service of tlie said ship as her master aeeordingly, ami thenceforward M'fved on board lier in that capacity and at that rate of wages until he was discharged as hereinafter stated. 2. When the ['laintitf so entered into the service of the said shii) she was lying at the port of Xorth Shields, in the county of Northund)erland, and she thence sailed to Point (If Galle, and thence to divers other ports abroad, and re- turned home to Carditi", where she arrived on the Ist day of October, 1875. 3. The " Nortliumbria," after having received divers re- jiairs at Cardiff, left that port on the 5th day of November, 1875, under the command of the jdaintiff, on a voyage which is thus described in the ship's articles signed by the jilaintiff and her crew before commencing the same, viz, : "A voyage from Cardiff to Bahia or I'ernambuco, and any jiorts or jdaces in the Brazils, or North or South America, United States of America, Indian, Pacific or Atlantic Oceans, China or Eastern Seas, Cape Colonies,West Indi .-, or continent of Europe, including the Mediterranean b"j.\ (ir seas adjacent, to and fro if required, for any period not exceeding three j'ears, but finally t.o a port of discliarge in the United Kingdom or continent of Europe." 4. The " Nortliumbria," after so leaving Cardiff, met with liad w(>ather and r-uffered damage, and was compelled to [lUt iiack to Falmouth for repairs before again jiroceeding uu her voyage. 0. The plaintiff wa«< ready and willing to continue in the SLTvice of the "■ Nortliumbria," and to perform his duty as licr master on and during the said voyagi', but the defend- ants, the owners of the "Nortliumbria," wrongfully and without reasonable cause discharged the jilaintiff on the -ord day of Novemlier from his employment as master, and a[iiKiintc(l another person as master of the "Nortliumbria" on the said voyage in the place of the plaintiff, and thereby licavy damage and loss have l)cen sustained by the plaintiff. FF 481 482 VICK-AD.MIUALTV KKI'()I{TS. (!. The |ilaiiitiH', wliilst lie iictcd as inastor of tlx; " N'ortli- uiiibria," fai'iK'd his waijcs at tlu' rato afoivsaitl; and \^r also, as such iiiastir, iiuulo divers dislmrsenieiits on aicnunt of tlio " Xortliuiiiliria " ; and tlu-ro was diii' and owiiii,'' to tlitj i»laintirt in ivspoct of such his waives and dishnrsenicnts. at the lime of his diseharu;e, a balance of !$ whieh sum the defendants, without sutticient «'au^e, Imvc neglected and refused to \my to the i)lainti(f. The plaintifl' claims — 1. Payment of till' sum of !? , the halauce due t<» the jtlaintitt for his waires and dishuf: iiieiits, with interest thereon. e- 2. Ten days double jiay, accordinti: to the ]>rovisioiis ot section 1H7 of ''The Me 'chant Shi|ii»iiii>,' Ad, 18.-)4."' 3. Dumau'es in respect of his wroi.u-ful dischar^'e by the defendunts. 4. The condeninatiou of the defenda.its [and their biiil] in the amounts claimed by or found due to tl le 1 )lain titt. 5. To have an account taken [with the assistance (»f merchants] of the amount due to the iilaintiff in respect of his said wai>:cs and disbursements, and for daniaifcs in respect of such wronirful dischartrc. »■>. Such further and other relii'f as the nalure of the case mav re(iuire, Dated the_ >ili iiiciitioiuMl, ami hi'torc and untiil slu' i»ut into h'ahiKnitli, as in tin; said t'ourth itarai.n'a|»h iiicntioned, tlio [tiaintifl' was tVo([iiuntlv undor the inHiu-nce of drink. 8. J)nrinic tlu' ni<^ht of tlu' lOth Novendier, 1^7;"), and the iiioniinii; of tlie 11th Xoveniher, lcS7'), wliilst a violent giile was hlowijig and the ship was in danijfer, the plaintitt' was wholly drunk and was incapa.l)le of attcndiiii; to his duty as master of the said sliip; and in conseciueiue of tlie eon- dition of the i)laintiif nim-h damaije was done to tiie said shiji, aiul the said ship was almost put ashore. 4. The (himai2;e in the fourth paras^raph of the statement of claim mentioned was wholly or in jtart oeeasioned hy the drunken eondition of the plaintiti' durin'i; tlie said voyai^e from C'ardifi' to Falmoutli. 0. The defendants haviuii- i-eceived infornnition of the jiliove facts on the irrival of the said ship at Falmouth, an proseeute her voya3. Tlie plaiiitiftri cliiini — 1. A (leclaratioM for tliu force and validity of the said Itoiid. 2. The condeiunatioii of the said barque " Konia ('api- tale " and lier freis-ht in the sum of § with interest thereon at per cent, per annum from the time when tin; said bond became payable, and in c(>sts. 3. A sale of the said barque and the application of the proceeds of her sale and ot her freiu'ht in payment to the plaintitts of the said amount and interest and costs. 4. Such further and other relief as the case may require. Dated the day of 18 487 (Signed) A. B., etc., I'laintifts. (7) //' c//' Acfiiiii for iiiorf(/af/c : Statemkxt of Claim. [Title of Court and Action.^ Writ issued 18^- 1. The above named brigantine or vessel "Juniper" is a liritish shi[t l>el<)ngini>- to the port of of tiie rL'gistered tonnage of 109 tons or thereabouts, and at the time of the mortgage hereinafter mentioned, Thonuis Brock, of was the registered owner of the said brigantine. 2. On the 4th dav of dulv, 187art of tlic said ])niK'i|)al sum or interest lias liccn ]»aid, and there still remains due and owing to the ])laintitl' on the said niorti;ai)]ied to the said Tliomas IJrock for payment thereof, cannot ohtain pay- ment without the assistance of this Court. The plaintiff claims — 1. Judij^ment for the said principal sum of $____ , together with interest and expenses. 2. To have an account taken of the amount due to tiie plaintifl. i{. i'aymcnt out of the proceeds of the said V)rigantiin' now remaining in Court of the amount found duo to the ]>laintift", together with costs [or to have the said brigantine sold, etc., as the case may 6e]. 4. iSuch further and oilier relief as the nature of the casi' may require. Dated the day of _„ 18- (Signed) A. B., Plaintitl. (8) /// an Actioit hrtirecii Co-Oirucrs (far aeooxnl). Statement of Claim. [^Title of Court and Adion.'] Writ issued 18. __ 1. The "irorhjck" is a sailing shij* ot about 40 tons register, trading between and 2. By a bill of sale duly registered on the 11th day of June, 18(!7, the dcfcnda it, John Ilorlock, who was then sole owner of tVie above named ship " ITorlcK-k,'' transferred to Thomas AVorraker, of . 41th parts or shares of the ships for the sum of $ 3. l^y a subseciuent bill of sale duly registered on tl Kith December, 1870, the said Thomas AVorraker transfer! le fm^' : due to the in re of the )ut 40 tons TTIK ADMIRALTY HULKS, 18!t:]. liis said fjth shares of tlie ship to George Wrii^ht, tlu- plaiutift, for the sum of $ 4. The that if the said Thonuis \\''orraker transferred any shai-cs df the said ship to the plaintiff as alleged (which the defendant does not admit), he did so wrongfully and unlawfully, and that he had not possession of or any right to or in rcsiied of said shares. 4. The defendant denies the statements contained in puni- graph five ot the statement of claim, and says that he never rendered any such account as alleged therein. 5. The defendant does not admit the statements con- tained in paragra[)h six of the statement of claim. Dated the dav of .. 18 . . (Signed) C. B., Defendant, Reply. [Title of Court and Action.^ The plaintiff denies the several statements in the state- ment of defence. Dated the day of_ 18 (Signed) A. B., Plaititiff. (0) In an Action for Possession: Statement of Claim. [Title of Court and Action.] Writ issued 18 1. The plaintiffs are registered owners of 44-64 shares in the British shi[> " Xative I'earl," and such shares are held by them respectively as follov/s : 11 the stato- TIIK ADMrKALTV RCLKS, lSf»:{. Nfori^aii Parsall (Jriftitlis is owner of 1(i-»!4 sliares, Kdinuiid Xicliolls of 8-(!4 sliaros, William Meai^licr of 4-(I4 sliai'L's, Isaac IJiitlcr of (S-(;4 shares, and William llorhort of H-f]4 shares. 2. The only owner (»f the said ship otlier than the |>hiin- titts is flohn Nicholas Richardson, wlio is the rciri-^tert'd Mwiior of the remainini; 20-f)4 shares of the said siiij), and lias hitherto acted as mana<;ini; owner and shiji's hushand (.ttlie said shiji, and has possession of and control over the -aid ship and lier certificate of rei^istry. ;]. The defendant, the said .lohn Xicholas Kichardson, liiis not manai^ed the said shij) to the satisfaction of the ]ilaintiffs, and has l»y his manau^enient ot her occasioned iTioat loss to the [daintiti's; and the plaintifi's in consent lias refused and still refuses to .;ivc possession of the said ship and certificate to the plain- tiffs, and the plaintiff's cannot ohtain possession of them without the assistance of this Court. 4. The defeiuhmt has neglected and refused to render jiroiier accounts relating to the management and earnings of the said ship, and sucii accounts are still outstanding, and unsettled hetween the iilaintiffs and the defemhuit. The plaintiffs claim — 1. Judgment giving })Ossession to the i)laintitis of the said ship and of her certificate of retjristrv. 2. To have an account taken, with the assistance of merchants, of the earnings of the ship. 3. A sale of the defendant's shares in the said ship. 4. Payment out of the proceeds of such sale of the balance (if any) found due to the jtlaintiffs and ot the costs of this action. 4!tl r^, 402 VTCIvADMIIiALTY liEPoRTS. 5. Such furtlior luid otlicr roliof as tlio nature i>\ th.' case may ro. (10) III (III Actii III fill' Xt'cesmries : Statkment of Claim. [ Title of Cottrf and Ai.'tion.l "Writ issued 18 1. The plaiiititts, at the time of the oecurrences hereiiiiit'tcr Tuentioned, carried on l)nsiness at the ])()rt of th l)onded store and jtrovision merchants and shi[) eliandlers. 2. TVie " Sfaetoria " is a (Ireek ship, and in the months nt .lune, July, August and Septemher, 1874, was lyin- saries for the necessary use of the said ship upon the >i\\'\ then intended voyage to the value of $ __. , for which sum an acceptance was given l)y the said Gcdriiv Lazzaro to the plaintiffs; hut on the 4th day of Fehnian. 1875, the said acceptance, which then hecame due, was (li>- lionored, and the said sum of $ , with intci'o>t tliereon from the said 4th aid various sums amounting to ^ . for the insurance of their said deht. 6. The said goods were su})iilied and the said sums ad- vaiR'Oil and paid hy the [ilaintiffs upo', the credit of the •aid shii>, and not merely on the personal credit of the said master. The plaintiffs claim — 1. Judgment for the said sums of $ and S together with interest thereon. •2. That the defendant (and his hail) ho condemned therein, and in costs. or 2. A sale of the said ship, and payment of the said sums and interest out of the proceeds of such sale, to- gether with costs. o. 8uch further and other relief as the case may re(iuire. Dated the dav of- (Signed) J.i?., r/r.,] Main tiff- .18 aintiffs, at tlir n the stun d le said ship at on account of 1 the sum ot for the nt.■tl'^■ ! ; and of tln' iuns due ami (11) Tit an Action for co)n/niui'if ion of a S/ti/) or Ciu'f/o, lir Statement ok C'l.u.m. [litle of Court and ^4c^/o/i.] Writ iesue( IS Stiiti brieflii f/w cirrinnstances of llu siimrt, or, if an Affidarit .III, (' ril t ■iinista)n>cs has been fihd, refer to tin AlUdadt. A. B. \_statc nan)r of j>er8on saint/ in tin: nainc of the Crotrn^ amis — The condemnation of the said ship cari;o, and of the said slavi th [and 1 ler es, or as ihc rase nui'. '/ (^<], 'WW'- 4!>4 VICK.AI)MIl{AI/rV IJKI'OliTS. oil tli< uToiuid that the said ship, vtc, was at tin? tiiiR' ot'thi' sei/nri' tlu-rcol' fitted out for or t'ii(']. Dated the . dav of \ 18 , (Si^iriic'd) ^1. y;. (12) In an Action for lleatHulion of a Ship or Cargo: StATKMKXT ok ('LAIM. [7V//(' of Court and Action.'] Writ issued 18 Staff brit'J^ii the i-ln-"hii., de., I'laintitl's. or I I |i • W 4. l\ •m if, i } iM (13) In a Piracy case, where the captors intend to a[)phj f Bountji, add — A. B. further prays the Court to declare — 1. Tiiat tlie persons attacked or engaged were pirates 2. That the total nund:)er of pirates so engaged or attacked was of whom Avne captured. 3. That the vessel [or vessels and boats] engaged wa- [()/■ were] [and ]. Dated the day of 18 _ (Signed) A. !'>■ TIIK ADMIUAI/rV lilLKS, 181t;}. (14) ]» (III Ai-t'iiiii fur l{i'<'i>i-iv;i of mil/ Picniiinn/ Foi'/t'lturc or l\ III lit II. St A TK mi: NT OK Claim. \_Tille of ('oiirt ami AcUnyi^. Writ iwsut'd is Sliilc hriijli/ l/ir i'irrilillfr us flu' cisc uiai/ hi']. 1. Did not, etc. 2. TEave not, etc. The defenthmt C. D. is reqnired to answer the interroga- tdi'ics nunihered __. The defendant F, F. is recjuired to answer tlie interrofja- tories nunihered _ . _ _. Dated the. day of .18 (Signed) A. B. [or C. D., as the case may be."] Xo. 2;-). Answers to Interhouatories. [I'illc of Court mill Aciimi.'] Tlie answers of the defendant; C. D. [or i)laintiff yl. B., etc.'] to the interrogatories filed for his examination hy the plain- tiff^. B. [or defendant C. D., etc.] Rule C9. 1 .. m m^ 496 VK'K ADMTIJALTV RKl'oRTS. Ill uiiHWt'r to tlu! xai«l iiitt'rroifutor'u'H I, tin- iiliove imiiud C D. [or A. Ji., etc.], iimkt' oatli aiul t^ny an follows: 1. 1 2 etc. etc. etc. Oil tlie (lay of \H the said C. JJ. [w A. JJ., etc.] was duly swoni to the tnitli of this atti- (lavit at. - .. liefore me, E. F., dr. (Si<;iH'(l) d D. [or A. II] Xo. 26. Rule 71. Affidavit of Discovkhy. [Title of Court and Action.] I, the (lefeiKhiiit C. D. [or phiintift'^. B., etc.], make oath and say as folh)\vs : 1. I have ill my possession or power the docnimeiits relat- ing to tlie matters in (piestion in this action, set forth in the rtrst and second parts of the first sche(hile heretic. 2. r object to produce the docnnients set forth in the second part of the said first sdiediile on the u;round tliat [ntate grounds of objection, and verifi/ the facts as far as may be.] 8. I have had, l)ut have not now, in my }»ossessioii or power the documents reUiting to the matters in question in this action as set fortli in the second schedule hereto. 4. The last mentioned documents were hist in my posses- sion or power on [state when.] 5. [Here state vliat has become of the last mentioned documents, and in whose possession they now arc.] 6. According to the best of my knowledge, information, and belief, I have not now and never had in my possession. custody, or power, or in the possession, custody or [)0\vii' of my solicitor or agimt, or of any other person or persons on my behalf, any deed, ai;count, book of account, voucher, receipt, lettei', memorandum, papier or writing, or any copy Till-: Al>.MIKAI/rV lULKS, l^!*.!. 497 nt or oxtrat't from iiiiv sudi (locMiiiciit, or any other docu- iiii'iit wliatsouvcr, rrlatiiiii' to tin- matter- in i|ni'stioii in this iK'tion, or any of them, or wlifrcin any entry han hcen ma(h' I't'lativf to such mattrrs, or an\' of thi'in, other than ami ixt'e]it the (lotMimeiits set foith in the said tirst ami second •lii'ihdes hereto. ScilKDll.M Xo. 1. Part 1. [//(vr w/ out PocuinenUt,^ I 'a It '2. [^'S(f out DocumcnLH,'] >eiii:ni I,H \ o. ::. [.SV< out Docunicnlti.^ .18 Oil the (hiy ot „ said C. D. [or A. 7>'.,('i!c.,] was ([\\\\ sworn to the truth of tliis atHihivit at Before me, K. K, etc. (Si^irncd) a 1). [or A. J5.] Xo. 27. XuTU'l^ TO PRODI'CK. [Title of Court ainl Artion.'] Take notice that tiie plaintift A. B. [or defendant C. DJ] requires you to produce for his inspection, on or before tlie day of_ . , the following documents. [Here, describe the documents required to be j)roduoed.'\ Dated the . day of_ 18__ Rule 72. (Signed) To a D., Defendant, [or as the case may 6e.] A. B., Plaintiff". [or C. D., Defendant.] 498 VICE-ADM 1 K ALT V liEPORTS. t Ko. 2S. Rule 74. XoTlCE TO A DM IT DOCUMENTS. [^Titlc of Cdtirt (Itiil Acfioii.'] Take notice +hat the plaintitt, A. B. [or det'ondaiit C. D.] in this action proposes to adduce in evidence the sevoml documents hereunder specified, and that the same may lie inspected by tlie deten(hint [or phiintift',] liis solicitor or agent, at . on ^ , between tlio tlie hours of . and _; and tlio defendant [or plaiutiff] is herein' recpiired, witliin/o/7//-(vy,/ hours from the last mentioned hour, to admit that surli ot' the said documents as are specified as originals were respec- tively written, signed or executed, as they purjiort respec- tively to have been ; that such as are specified as cojjics ww true copies; and that such documents as are stated to haw- V)een served, sent, or delivered, were so served, sent or delivered respectively; sieving all just exceptions to the admissibility of all such documents as evidence in thi^ action. Description of Documents. Dates. Time and Mo.le of Service or Delivery, etc. [J [ere hriefy describe [Here sfdte [J fere d(de irheflicr the documads.^ the date of oru/inai or a dupliecde i each icas sent by post, or served (1) Orioinah ' document.^ or delivered, and u-iwii Dated the. day of 18. (Signed) A. B., TMaintifl [or C. D., Defendant.] To a D., Defendant, [or as the (-((se mail /><•.] % -s'"!' 5. THE ADMIRALTY TUPLES, 1808. 499 ^ndant C. D.] the several same may lie s solicitor or , between the .; and the \\m fortn-c'iijl.t that sneh of were respee- qiort re^pec- as copies are tated to ha\ e ved, sent or itions to the euce ill this [ode of Service ivery, etc. ic irhetinr the • a duplicate post, or served i, and when >m.] Defendant.] Xo. 2';). XoTicE TO Admit Facts. \_TUh' (if Court (did ^lr//o//.] Take notice tliat tiie plaintitt" A. B. \or defendant C. D."] (leniands aihnission of the nndermentioned facts, saving all just ;'\ceptions. iy' V \_Here state hriejiy the facts of which admission is demanded.^ Paile 74. i Dated the dav of_ AH (Sio-ned) ^1. B., I'laintitf [or C. D., Defendant]. To i\ i)., Defendant, [or as the case may 6e]. Xo. :5(l. XoTicE OF Motion. [Tlf/t' of Court and Action.] Take notice that on [state day of week] the Rule SI. dav of. _.. , the }tlaintiff [or defendant] will []>y eonnsel, or by his solicitor, if the motion is to be made by counsel or solicitor] move the judge in Court [or in chandjcrs, as the ease may be'] to order that [state nature of order to be moved for. In a notice of motion to vary a report of the registrar, the itetns objected to must be specified]. Dated the dav of IS (Signed) A. B., IMaintifl" [or C. D., Defendant]. Xu. 31. XoTICK OF TkNDFK. [Title (f Court and Action.] Take notice that I have paid into Court, and tender in satisfaction of the [ilaintiffs claim [or, as the case may be, if the tender is for costs also, add inclinling costs] the sum of [Mate sum tendered both in letters and fi.yures, and on what temis, if any, the tender is made^. Dated the day of 18 (Signed) C jD., Defendant. Rule 86. f ' r,oo VICK-A DMIHALTV KEPOirrs. Rule 86. Rule 92. Rule 93. Xo. 32. XOTICE AcC'El'TINd (iK KEJK(JTIN(i TeXDEU. [2Vf/r (,/ Cntirl aiul Action.'] Take notice tliut I aec'e[it [<>i- rejeet] tlie tender made la the defendant in this action. Dated the __ (hiy of 18 ^. (Signed) A. B., Plaintiff. and Xo. 33. Inter ruKTEii's O.mh. You swear that von are well aciiuainted with the Eiiiflish languages [or as- the (-(tse )iKaj he] aiid that you will faithfully interpret hetween the Court and the witnesses. So help you GOD. Xo. 34. Appointment to Administer Oaths. (1) In Admiralty Proceedings generally : (l.s.) ITitle of Coxirf] To [state name and address of (Joinnussione.r\ I herehy ap[)oint you to he a Coinrnissioin'r to administer oaths in all A (Signed) and languages [o;- as the case iiuiji be'] and that he would faithfully inter[»ret the said affidavit, at Before me, E. F., etc. Rule 09. A. B. 502 Rule 102. VICE-ADMIKALTY KKl'OKTS. Xo. 38. Okdkr ]'<»r Examination of Witnesses. [Tifir of Oiiirt and Arfioti.] Ou the day of 18 Before Ju(l eloek in the noon. (Si<;ned) E. F., liei^istrar, or ])istriet Kei!;istrai'. Xo. .39. Buieio4. Commission to Examine Witnesses. (L.s.) [Tidv of Court and Anion.] Victoria, etc. To [state name and address of Commissioner], Greeting : WViereus the jud^'e of our Ex(!hequer Court of Canada [or the local judge in Admiralty of the Exchequer Court for ihr Admiralty District of ] has decreed that a coin- mission shall he issued for the examination of witnesses in the aliove named action. AVe, therefore, hereby authorize you, upon the . day of 18 at - , in the presence of the parties, tlkir eounsel, and solicitors, or, in the al)sence of any of them, to swear the witnesses who shall be produced l)efore you tor examination in the said action, and cause them to be exam- ined, and their evidence to he reduced into writini>;. AVe further authorize you to adjourn, if necessary, the said examination from time to time, and from place to i)lace, as you may find exitedieiit. And we command you, upon tin' examination beini; completed, to transmit the evidence dulv I'L'rtitied, together with this commission, to the registry of our said Court at TlIK ADMIRALTY RULES, 18i>8. 503 Given at in our said Court, uudcr the seal thereof, this _. . (hiv ot ___18 (Signed) E. F., I{ei;istrar, or District Registrar. Commission to examine witnesses. Taken out hy , Xo. 40. Retirn to Commission to Ivxamixk AVftxesses. Rule 107. \_Tltle of Court and Action.^ I, A. Ji., the commissioner named in tlie commission hereto annexed, bcarins:: (hite the _- _-(lay of . is , liereby certity as follows : 1. On the day of 18 I opened the said commission at , and in the presence of \siate irlio ircre present, irln'thrr hofh parties, their (unntscl, <»' sdlicitors, or 'fs the fe\ administered an oath to and CiUised to he examined the under luimed witnesses who were produced before me on behalf of the \state irhether I'l'diitiff' (ir (l(teiip()rt of his claim [or counter-claim], and having on the __ day of heard tlie evidence o^ [state names] wlm THE ADMIRALTY RTLES, 18!):5. oOr> were oxjuniiu'd iis witnesses on heliiiH'of the plaintitf and ot [afate nawffs] wlio were examined as witnesses on Ixdialf ct' rlic defendant, [and liavinu; liL'ard the solicitors {or connsi'l) oil both sidos, or as the case me], F find that there is (hu- to the phiintift [or (U'feinhint] the sum of $ [state fiwn in letters and ji(jtire)f\ toijetlier with interest thereon US stated in the sc*he(hde heri'to anne\i'(L I am also of eliinion that tlie plaintitt [or defendant] is entitled to the costs of tiiis reference [or an the cane may 6e.] Dated 18 _. (Siraiser or ai>praisers, to tile the same in the registry of our said Court, together with this commission. Given at , in our said Court, under the seal thereof, this ^ __.day of _ 18 (Signed) E. F., Registrar [or District Registrar]. Commission of Appraisement. Taken out by •i THK ADMIKAI/rV liCLKS, i,s!»; 507 (L.S. No. 45. Commission ok Salk. [ Title of Court and Action,^ Uule 140. \'i("roKiA, etc. To rlic Mui'slial of our Adniiraltv Distriot of [or tlio SliL-ritf, <'t(,'., as in Fottn No. 44], (jreotiii^: Wlioroas, the Jud^i^e of our Hiiid Court [or the local judp', ore, as in Form No. 44], lias ordered that {_8ta(e irhether ahip or cargo, and date name of ship, and if part onhj of cargo, ivliat part^ shall be sold. We, therefore, hereby coiiiinaiid voii to (duee into writiiii:; an inveiitorv of th( an ir shut or eariro. ite., as the case viai/ 6e], and to cause the said [shlj. or carud, itc.] to be sold by itublic auction for the lii<^hest price that can be obtained for the same. And we further coniniand vou, as soon as the sale has Ih'cii completed, to pay the proceeds arisiuii- theri'from into Dur said C^ourt, and to tile an account sale signed by you, tou'ether with this commission. (j Tiven at -in our said Court, under the seal thereof, this ("ommission of sale. Taken out bv dav o (Signed) f K F. 18 Registrar [or District liegistrar]. Xo. 46. Commission of Aitraisemknt and Salk. Bute 149. (L.s.) [Title of Court and Artlun.'] TiCTOKIA, etc. To tlie Marshal of our Admiralty District of [or the Sheriff, etc., as in Form No. 44]. (ilreeting: AVhereas the judge of our said Court [or the local judge, etc., as in Form No. 44] has ordered that [state whether ship or cargo, and state name of ship, and if part only of cargo, what m nos vi("K-Ai)Mii{Ai/rv liKi'oirrs. pnrQ sliiill lit' sold, W't', tlicfi'lorc, lu-rchy ('(MiiiiiiiMd you reduce iiitct writiiiy an inxcntKrv ot the siii( <1 [sliii • or ciii'i:'!!. etc., (iH the ciiHv nui II H' iiiHl lia\iiii^ chosen one or nioi'r e\|ierien('('(l |>ei'son or persons to sweai' liiin oi" tlieni t( appraise the same aeeordini^ to the true \ahie theri'ot', ani hen a eertitieate (tf such \alne has Iteen rechieed itit( ^\ wntiiiij and siij^ned In* yoursi-lt and hv tlie appraiser m appraisers, to cause tlie said [ship or eariro, etc., nn the y be] to he sold h_v |tul»He auction tor the hiu'hest prii C(lsc ma not uinU'r the a|»p''uise(l vahio tht-reot', that can he ohtaiiicd for tlie same. And we further command you, as soon as the sale has been eomideted, to pay the ]»roeeeds arisini; therefrom into our said Court, and to file the said eertitieate of appraise- ment and an aeeount sale signed by you, together with this commission. (liven at in our said Court, under the seal thereof, thi.- hiv of '»}' .18^ (Signed) K F.. Registrar [or District Kegistrar]. Commission of ap[>raisemeiit and sale. Tul i-cen o ut b) 'll« II ■ f Xo. 47. Rule 149. Co.MMl^iSION OF Ke.MOVAL. (l„S.) [yV//r Xo. 48. Commission fou Disciiahci: ok C\\K(i(). uuieug. (L.s.) [lltle of Court and Action.'] Victoria, etc. To the Marshal of our Adnnralty i)istriet of [or the Sheriff, ete., as in Form No. 44]. Greeting. Whereas the judge of our said Court [or the local judge, etc., as in Form No. 44] has ordered that the cargo of the ship shall he discharged. We, therefore, herehy command you to discharge the said cargo from on board the said ship, and to put the same into some tit and proper place of deposit. And we further command you, as soon as the discliarge of the said cargo has hceii completed, to file vour certificate thereof in the rci-istrv of our said Court, together with this commission. Given at. in our said C(,nirt, under the seal thereof, tliis_____ dav of. ^18. _ (Signed) E. F., Kegistrar [or district liegistrar]. Commission for discharge of cargo. Taken out bv m:- !>hi VICK-ADMIKAI/rV UKI'OKTS. Rule 149. i<>. 4!». Commission fok |)i;m(H,itI()N ani» Sale. (i-.s ) (In a Slave 'I'radf Carte). [Tide of Court and Ai'tion.'\ VlClOlUA, et( To tlie Mai'rtlial of our Adiiiiialty Disti'iet of . ._ [oi' tlie Slieritr, etc., an in Furiii No. 44]. (ireetiiiij: Wo lierelty coiimiaiKl von, in pursuance ot" a decree nl the .ju heen completed, to pay the proceeds arisini; therefrom into our said Court, and to tile an account sale si<;ned hv vou,aiiil u certificate sio-ned hy you of the admeasurement and ton- nage of the vessel, to«;ether with this commission. Given at. in the said Court, undei' tlie s( ;tl tlieruof, this AH day of (Sii-'ned) E. F., ]{e_i!^istrar [or District Jieiristrar], Commission for demolition and sale. Taken out hv No. oO. Rule 154. OllDEU FuK [XSI'KCTIOX. [Title of Court and Adion.^j On the ._ ^ day of 18 Before . Judije, etc. The judi^e, on the application of [state whctha' plaintiff defendani\ ordered that the ship III' should he *i I TIIK ADMIKAI/I'V IMLK.S. 1H.K5. iiispt'ctt'd l»y [ntdte whether hi/ the nuiri^hal or hy 'he osMfHxorn of the Court, or OH the cuHf majf hr], \\\u\ that ji nji .rf in writiiii; (»f the iiif<|u'ctioii should ht- hMlircd hy hiin [o» iheiii] in the ii'i^istry. (Siijriicd) /•;. A'., lit'ifistiiir [or hintrii't Ui'ifistmr]. 611 Xo. ')1. XoTICK OF DlSCoNTrNTANrK. [Title of Court and Adion.] Tuke iiotifc that tills action is discontiiiiu'd. Duted the duv ot 18 (Si,u-m'd) A.B., IMaiiititt. Itule IM. No. -)2. Notice to Kntkk JrixiMiiNT rou Costs. [2We of Cotirt and Adion.^^ Tako Motic't.' that T a|t})ly to have jiidi^mcnt oiitcrod tor my costs in this action. Dated the day of 18 (Signed) C. J)., Dctcnchint. Kiile IW. No. 53. Notice of Motion on Appeal. Ill the Exchequer Court of Canachi. In Admiralty. Between A. Ji., I'laintitf; and C. JX, Defendant. Take notice that this Ilonoiahle Ctturt will he moved on _the^ _ (lav of 18 , or so soon thereafter as counsel can be heard, on behalf of the above Rule 139. It' i.|l . I 512 W Rulf 177. VI(M^:-AI)M IK ALT V KHI'( )RT8. named plaiiitiii" A. B. [o/- (U'tiMidant C. D.~\, that tlic jiidi:- iiu'iit [o/- o/v/r/'] of tho local jiiduv in Adnuralty for tlu Admiralty District of made lieroin and dated tlir . day of IH ,\_()i' if ())>lii part of tlic. jiiilij. mcnt or order is appealed from .^v///] that so much of the judg- ment [or or((er^ of the local Judtje in Admiralty for the Admiralty District of . made herein and dated tlic day of 18 , as adjudi^es (or dircclH or orders as the case may he) that \liere set out the part or jiaris of the judgment or order which are appealed from^ may be reversed [or rescinded^ and that — \Jiere set out the relief or reviedj/, if aiui, soughf] and that tlie costs of this appeal, and before the local iudi^e in Acbiiiraltv, mav be i aid bv- the to the J)ated, etc. Yours, etc.. Solicitor, etc., or, Affent, ete. (To the above named defendant), (or plaintiff), and to , his solicitor or atjent. Xo. 54. Kkckivable Order. Registry of the Exchequer Court ot Canada [or, tor the Admiralty District of. ] No.. 18 [Title of Court and Action~\. Sir, — I luive to recpiest that you will receive from [stede name of person pay im/ in the monei/^ the sum of S on account in the above named action, and place the same to the credit THE ADMIRALTY KULES, 18!)8. r)18 of the account of the Re2. Xo. 61. Caveat 1'ay.mext. Knieis.'. [Title of Court and Action.] Caveat entered this (hiy of 18, a;j.'ainst the payment of any money [if for costs, add for costs, or (IS the case nuii/ />r] out of the proceeds of the sale of [state ii'lidhcr ship or cargo, and if ship, state tmiiic of ship, etc] now reniaininin' i'' Court, Avithout notiee heinij first ^^iven to [state name and address of person to whom, and address at ivhich, notice is to be given]. On withdral of the cavecd, add : Caveat withdrawn this day of 18 -_ t- 510 YICE-ADMIUALTV REPORTS. iiule 187. Xo. ()2. Notice fok Withdram'al of Caveat. l^Title of Court and Adion.Ji Take notice that I witlidraw the caveat [^8tate whether caveat warrant, release, or pay7nent'\ entered hy me in this action [or as the ease may 6e]. Dated the day of 18. (Signed) A. B. Bule 18B. Rule 189. Xo. 63. SUBPCENA. ( L . s . ) [ Tith of Court and A dion . ] Victoria, etc. To We command you Greeting: -that, all other things set aside, you appear in person before the judge [or the registrar, or G. H., a commissioner appointed by an order of our said Court] at on the day of 18 , at o'clock in the noon of the same day, and so from day to day as may be required, and give evidence in the above named action. And herein fail not at your peril. Given at in our said Court, under the seal thereof, this day of 18 SubpcBua. Taken out by Ko. 64. SuBPcENA Duces Tecum. llie same as the 'preceding form, adding before the word.'f " And herein fail not at your peril," the words " and tliat you bring with you for production before the said judge [or registrar or commissioner, as the case mag be"] the follow- ing documents, viz., [Here state the documerds required to be produced."] THE ADMIKALTV RULES, 189.S. Xo. 65, Ordkk kor Payment. iuiiei92. [TUIe vf Cotirl nml Action.'] Oil tlie clay of 18 Before ____-^__^___ Judge, etc. [or Local Judge of the Adruiralty District ^)f ]. It is ordered that A. B. fplaintift' or defendant, etc] Rule 202. (Signed) A. B. No. 70. Minute of Order of (/Oukt. Ruie2i8. [Title of Court and Action.] On the day of 18 Before . Jud_jj:e, etc. [or Local Judt^e in Admiralty for the Admiralty District of .] The Judge, on the application of [state whether plaintiff or (kfendant] ordered [state purport of order]. Xo. 7L Minute on Examination of Witnesses. Ruieais. [Title of Court and Action.] On the day of 18 , Before , Judge, etc. [or Local Judge, etc., as the case may be.] A. B. [state wliether plaintiff or defendant] produced as witnesses [Here state names ofioitnesses in full.] who, having been sworn [or as the case may be], were examined orally [if by intei'pretation, add by interpretation of ]. 520 Rule 213. vi('K-ai)MI):altv UKroiiTs. No. 12. MlMTK Hi' DllCKKK. [7V/r of Curt mnl Jr//o//.] Oil till' . (liiv of 18 ]5utoro . . , .ludtji', etc., \nr Local .Fiidi^o, etc., as the case may br], (1) Decree for an aticcrtained .sum: The Jii(l<2;c huviiiii; lieai'd [atafe wheiher plaintiff and defendant, or their counsel or solicitors, or an tlie case may ip,] and liavini^ I eeii assisted by [state names and desci'iptiom of assessors, if anyl, pronounced the sum of [state sum in letters and figures'] to he due to the ]>laintifF [or defendant], in res- pect of his claim [or counter-claim], toijether with costs [if the decree is for costs\ And he condemned — (a) In an Action in rem where bail has not been given: the shi[) [or cargo ex the shij) or proceeds of the ship , or of the cargo ex the ship or as the case may be] in the said sum [and in costs]. (b) In an Action in personam, or in rem where Bail has been given : the defendant [or ]»laintiif] and his bail [if bail has been given] in the said sinn [and in costs]. (2) Decree for a sum not ascertained: The judge having heard, etc. [as above] pronounced in favor of the plaintiff's claim [or defendant's counter-claim] and condemned the ship [or cargo, etc., or the defendant or plaintiff] and his hail [if bail has been given] in the amount to be found due to the plaintiff [or defendant] [and in costs]. And he ordered that an account should he taken, and (a) If the amount is to be assessed by th ' judge : that all accounts and vouchers, with the proofs in support thereof, should be tiled within days [or as the case may be]. THK ADMIIiALTV I^TLKS, l.s'.cl. (1>) If (he JH(l(/e refevH flic assenftmnU to the rff/i.strar : roft'iTod till' same to tin- rt'u-istrar fassisti'd l»v nier- oliatits], to rt'iiort tlic amount due, and ordurod that all accounts, I'tc. [f/.s uhnve]. 521 (3) Decree on flii, and that the nwitcrials thereof sliould he laihlicly sold in sei>arate parts, toijether with her car<^o [>/ "iii/ : or, If the vessel has been abandoned or dr,itroi/ed bif the seizors prior to the ad jxidi cation, and the Court is satisfied tliat the abandonment or destrnction iras justifiable, add : The judi^e further declared tiuit, after full consideration hv the Court of the circumstances of the case, the seizors had satistied the Court that the ahandonmcnt [or destruc- tion] of the vessel was inevitable or otherwise under tlie circumstances projier and Justitiable. I i;^ (7) Decree of restitution in a slave trade action : Tiie judge having heard, etc., pronounced that it had not been proved that the vessel . . was engaged in or fitted out for the slave trade, and ordered that the said vessel should be restored to the claimant, together with the goods and ettects on board thereof; add, as the case may be, but without costs or (himages, or on payment by the said claimant of the costs incurred by the seizors in this action ; or and awarded to the said claimant costs and damages in respect of the detention of the said vessel, and [referred the 'INK AhMIliAf/rV IMM:s, ls!t;>.. .')2« -iiuio to tlu' fi'n'istrar (jissistiMl hy iiicri liaiits) to ri'iiort tlif iiiiiount tlii'i't'of, and] dircfti'd that all a<'coniits ami Vdncjicrs willi tlu' jiroots in siipjioi-t tlici'i'nt". it' any, slioiiM In- filed w itliin .... _ (Idi/K. of tlie vos>tl 2 adriioasuir- Id ho hrokfii hliflv sold in e seizors prior abandonment (X) Decree in cane of capture from pirates: Till' Jndu-c lia\'iiiii' hcanl, etc, i»r;)noiini'('d that the said imk " Tc'C'iniisi'h "" [and her cai'ud] had hccn at the time >r the eaiitiire thereof hy II. M, S. " Toi-eh "" the projierty i|' pirates, ami condeiiiiied the same as a droit and |iei- luisite of llei" Maiestv in Her ofKce of Admiralty : or l-ronounoed that tlie said junk '' Teeuniseh " [and her eariro] had prior to iier re-eapture hy II. M. S, " Toi-eh," etc., heen (iiptured hy pirati's from the vhumnwt [state name and descrip- tion of former oirner^, iu\(\ he decreed that the same should ln' restored to the said claimant as the lawful owner thereof, on payment to the re-captors of one-ei(/hlh part of the true value thereof in lieu of salva.ije. The judi^e also directed that the said junk [and her caru-o] should he appraised; If the junk, etc., has been captured afta' an engagement icith the pirates, and if there is a claim for bounti/, add: The judffe further declared that the persons attacked or eiiij:aii;ed hy II. M. S. "Torch," etc., on the occasion of the capture of the said junk were pirates, that the total nuniher of i)irates so attacked or en_t2:a<;ed was ahout _ , that of that nuinher wore captured, and tliat the only vessel ongaiiiied was II. M. S. "Torch" [or, as tlu ntSC in aji be\ incurred bv (9) Decree of condemnation under Pacific Islanders Protection Acts: The judge, having hoard, etc., pronounced that the ship had heen at the timo of her seizure [or during the voyage on which she was met] employed [or fitted out r>24 VI(M<:.AI)MII{AI/rV KKI'OUT.S. tor orii|il(»yTn»'iit] in vinliition ot' tlic Pacific Isliindcrs I'im. tcctioii Acts, 1M7- mid |H7."». aiir '/^ the (v/.vc nmji //<] as forfeited to llij Ma,icst_v. Till' .jiidt^c fiii'tlicr ordered that the said ship [and her cari^o, and the said i;oods and I'ttects] slionld \n- Hohl l>y puhlic auction, and that the proceeds sliouM l)e p:iiil into Court. (10) Dctrt'e of i'oixietiittnfiiiit in)(/rr l')>reen [huilt, ecpiipped, conmiissioiicd. deapatcli(Hl, or used, an the cam may be^ in viohition of th 'orei^ii Knlistinent Act, 1870, aial h d th lct, i»/u, aial lie condemned Tiie saM shi[) and her erpiiimient [and tlie arms ami Tiiunitions of war on hoard thcroof, or as the case may be] as forfeited to Iler Majesty. ^ « (11) Decree of condetuHation under Ciisioins or Revenue Act^: The judi^e havinu; heard, etc., condemned the sliip . [or cargo or }troceeds, etc., as the case may 6c] as forfeited To Her Majesty for violation of the Act [state u'hat Ad']. (12) Decree for peeiun'ar// forfeiture or penalty under Custom < Act or other Act : The judge having heard, etc., pronounced the said goods to luive been landed [or other illegal act to have been done] in violation of the Act [state what Act] and condemned tlu' ] )efendant C. D. [the owner of the said goods, or as the case may be] in the penalty of imposed by the said Act [and in costs]. n ii llllll(lcrS I'i'n. iii'd till- -aid U iitid cH'cN t'ited to II. r rt] should Iir ould !)(' |iai(| st incut Ai'l : hut tlio sliip nirniasioiit(l. lutiou of tlif iic-d thi' siiiil le urms anil ie may be] a> *.evet)iif Arfs ship tbrfeiti'd ti 4.ct]. idir Custom'! I said goods >een done] in lemned tlic rr as the case by the sail I TIIK A DM IK. \ LTV KILKS, IHM. MiNuriii IN AN Action h»u I>.\M.\(ii: iiy ('oi.usiioN. A. B., etc., No. agJiiiiKt The Ship - Mary." IH •Ian. (( 8 A writ of simmioiis (and a warrant) was [or won-] issued to X. >' . on hi'half of A. H., v\r., the owners of the ship ".lujie," ai,'ainst tiie sliip " Mury " [and iri'ight, 0/' (t.s tin' cearance on hehulf of C. I)., i etc., the owners of the ship " Murv." C X. Y. tiled writ of summons. " I The marshal tiled warrant. Y. Z. filed bailhond to answer judgment us against the defendants [or (/.< the case niai/ he'] in the sum of #1,000, with affidavit of service of notice of bail. A release of the sliip " Mary" was issued to Y. Z. X. Y. tiled Preliminary Act [and notice of motion tor pleadings]. Y. Z. tiled Preliminary Act. The judge having heard solicitors on both sides [or as the case ma}/ be], ordered pleadings to be tiled. X. Y. filed statement of claim. Y. Z. tiled defence [and counter-claim]. X. Y. tiled reply. The judge having heard solicitors on both sides [or as tlie case may be], ordered both plaintitts and defendants to tile affidavits of discovery, and to produce, if recpiired, for mutual inspection, the documents thereiji set forth within three days. X. Y. tiled affidavit of discovery. 19; Y. Z. filed affidavit of discovery. 22 X. Y. filed notice of trial. 10 11 14 15 16 18 6;i/> 626 VR'K-ADMIKALTV RKl'oRTS. Jan. 26 ' X. V. prodiice'l iis witnesses [,v/a/c na?Hc.s' o/».v7'(f.s.sr.s]. who, liavinu' been sworn, wer«.: <'Xiunine'(l oi'allv I in Court, the said [state names] huvin^:; ht-cn sworn , I and examined l>y interi)retation of [state name of I interpreter] interpreter ot" the hm^nai;-!'. I .Present [date names of assesmrs present, if ani/]. assessors. Y. Z. pi'0(hieed as witnesses, etc. [as above]. The Jndu,'e, liavinu; lieard [state whether p)laintiffs and defendants, or their counsel or solicitors, as the eauc maij be], and having been assisted by [state nanus and descriptions of assessors, if anij], pronounci'd in favor of the jihiintills [or deteniUmts], and con- demned the det'en(hints [or jilaintiUs] and tlieir l)ail [//■ hiiil lias been f/iren] in tlie amount to he tound (hie to the [ilaintitts [or defendants] [niid in costs]. And lie ordtued that an account should be taken, and referred the same to the reii'istrai' [assisted by meri'haiits] to report the amount due, and orck'red that all accounts and \"ouc1k'1s. with the jiroots in su]i[iort tliereof, sjiouhl be tiled within days [or a.s the case }iuit/ be], X. \. filed claim, with accounts and \'()U(dK'!'s in ■ suiiport thereof [numbered 1 to .__ ], and atli- da\its of [st(dc name of deponents, if any]. 8 , V. Z. Hied accounts and vouchers [numbered i j to ] in answer to claim. 9' X. ^'. tiled notice for hearing' of reference. 15 X. \. [or \ . Z.] tiled re(']. \'OUe!iers in -], and atli- minl)ered i nee. , etc. for serrice nf °aI to be scrrt d rily he reqiiin il lik'iidings have mtos Wduhl hf .' required. TAP.LKS OF FKKS T>> I'.K Takkn I'.v Tilt: Kt:(iisTKAHs. Marshals and Prac TlTIoNi:i!S, KTC, I\ Ad.MJRALTY I 'RnCKKDIXtlS IN Tin: ExciiKtii'KR ('initT OF Canada. 1. I)Y TllK lii:(ilSTRAR. ] . For sealincj or preparing Instruments, etc. For sealiiiii; any writ ofsuniinons or otlier doeuinent re(iuire< req 1 to 1 )e sea led. % 50 F ."■)() ;5(i )r prepariiiij:; any warrant, release, eonniussion, attaeliment, or otlier instnunent re(iuired ^.i be sealed, or tor attending' the exeeulion of any bail- bond, 2 00 For prei)arinij: a reeeivable (n'ai'inii: iuid sending' any notiee, or issuiiiij!; any appointment, ...... For preparinii' smy otlu-r doeuinent for e\ery folio, . Sole. — The fees for prejiaiinj^ sliall iiicliide drawing and ^air-copying or eiifjrossing. 2. For FUin(/. On tilino; any instnunent or otiier document, . . 20 y. For Evidence, etc. For attenk. — If the marshal, being duly qualified, ;icts as :ui<'ti(.'ieer, he shall be allowed a double fee on the gross proceeds. For attendance at the trial oi'an action to he paid hy the party wliose case is proceeding, per hour, . 1 00 ('ailing eacii witness, ...... 20 .Vo^'.— If the mursli;il or his oflioer is required to go any distance in execu- tiiiii (if iiis duiies, a reasonable sum may be allowed for travelling, boat-hire, iir otlivr necessary expenses in ad litioii to the prect'ding foes, but not to exceed Uii I'ents per mile tiiivelied. II 2 00 H 00 4 00 4 00 4 00 2 00 630 VICE-ADMDiALTY KKJ'OKTS. VI. — Fees to be Taken by Appraiskus. ,. , . , f From IR 2 :)ii ' * ^ ' [ To 10 11(1 (Tliis tee inav be increased to a sum not exceed- ing §80 in the discretion of the judge.) VII. — By the Solicitor. Retaining tee, ........ For [treparing a writ of summons (to include attend- ances in the registry for sealing the same), . For bespeaking and extracting any Avarrant or other instrument prepared in the registry (to include attendances), ....... For serving a writ of summons or a subixena, For takiui!: instructions for a statement of claim or defence, ........ P^or drawing a statement of claim or defence, . For taking instructions for any turther jdeading, . For drawing any further pleading, .... For drawinu; anv other document, for every folio, . For fair-copying or engrossing any document, for every folio, ........ For taking instructions for any attidavit (un- ^ less made by the solicitor or his clerk) or [ From for interrogatories or answers, according I To to the nature or importance thereof, . J f From For attending counsel in conference or consultation, For attending to fee I'ounsel, ..... For atteiidaiUH' on any motion before the judge — If with counsel, ....... If without counsel, ...... For attending the examination of witnesses before the trial, for each day — If with counsi'l, ....... If v^•ithout counsel, ...... For taking instructions for brief, 2 (lit 2 T)!! 1 1)11 1 (III 4 nil 4 oil 1 nil 2 Mil 20 10 1 no 4 no 1 00 4 OO .) no .) 1,1(1 o 11(1 4 nil 4 5 n \k ISKRS. From $ 2 r.ii To 10 (HI re 2 III! 2 .1(1 1 0(1 1 (Id 4 00 4 00 1 oo 2 00 lid 10 >^rom 1 00 To 4 Oil From 1 oo To 4 OO ation, 2 0(1 ■ 2 Oil •^ 2 (III 4 (III 4 On ^ 0(1 TIIK ADMIIiALTV RTLKS, ISii.',. f Fn. Ill g 4 00 531 For atteiidiince at tlie trial for each (lav, (» For attendaiu'c at the delivery of .judiciiu'iit, if re- served, ......... For attendance at the lieariii'"'*^*'*'"' \To i:, 00 For the examination of witnesses before the f From 10 00 trial, for each day, \ To 20 00 Fit the trial of an uncontested action, . . .10 OO 532 VICE-A DMIK ALT V KP:i'OKTS. For filch (liiv after the tirst, Vov tlie trial of a contested action, for the f From ^15 tirst day, I, To ;")() f From 10 •\To '2.-) ,,,,,.,, .... , f F'rom .'» r or atten(hni; nd<;inent it reserved, . . •. „, ' ' ' I i o J < > F(tr the hearin*; ot a reference to the reikis- ( From 10 trar, for each (hiy, . . . . . [ To 2.") Xnte. — Wliere tlie siinie priic'titioner acts as both counsel and solicitor, lu' iiiiiy, for any proceed inj? in which a counsel's fee mif^iit he allowed, charfic sue! I fee in lieu of a solicitor's fee. IX. — By iSlIOKTHAND A\"hITExI,S. P^or takinti: down and transcrihini;; the; evidence, (•ertityiii<>: tlie transcrijit, and transnnttin<( the same to the I'egistrar, and siiitplyinu; three co[)ies thereof to tlie rei^istrar, per folio, . . . 20 if for any reason the evidence is not recjuii'ed to he transcrihed, for each honr occnpied hy the ex- amination, . . . . . . . . 1 -Vl Such fees shall, in the first instance, he paid to the registrar for the shorthand writer hy the party calling the witness. Tf any such fee is not jtaid Ity the party liahle there- for, it may he i)aid hy any other party to the proceeding and allowed as a necessarv dishurse- ment in the cause, or the judi2:e nuiv make such order in respect of such evidence and the disposal of the action or procei'ding as to him seems just. Note. — If evidence is taken down by a shorthand writer, no fee for taking; down and certifying to such evidence shall he allowed to the rejjfistrar or emu- niissioner. -X. — \\\ Witnesses. T(.) witness residing not more than three miles from the iila(;e to which summoned, [ler day, Tm witnesses residing over three miles from suc-li place. ......... 1 (III 1 ■!:> TIIK ADMIKALTV KTLKS, 1803. 533 I'lirristers and iittoriu'ys and solicitors, physicians and sni'iivons, wlicn called njton to y'ive evidence in conse(inence ofany j)rot'essional service rendered l)v them, oi' to <::ive opinions, per day, . . . S ") <•<) l''ii_i;ineers and snrveyors, when calU'(l n])on to ortionate )»art in each cause only. Thi' travellini:; exi)enses of witnesses over ten miles shall he alh)wed according; to the sums reasonahly and actually paid, hut in no case shall exceed ten cents jier mile travelled. ■ IP ■ \ CONTENTS. Order of Flis KxcelleiK y tlie Governor-General in Council approving .f the KiiU'> Order of Her Majesty in Council approving of the Rnles, RULES 1. Interpretatic on, ■m 110 2-4. Actions, 4N 0-9. Writ of iSiimiiions, 115 10-1 . 44.') . 44.^ . 44.-) . 446 . 446 . 446 ,. 446 . 447 ,. 447 .. 447 ,. 448 .. 44.S .. 449 ,. 449 .. 449 .. 4.50 .. 450 .. 450 APPENDIX. I.— FORMS. r-' I I* i I '? I '■^ 'i 1. Title of Court, :{. 4. •'). fi. 7. 8. It. 10. 11. 12. M. 1.'.. It). 17. IS. 19. '>(). ■"2 •-'3. •-'4. •_'.'). 2(>. •27. 2S. 29. .SO. 31. 82. 3.S. 34. 3.3. 86. 37. 38. 39. 40. 41. 42. 43. Notii'o in lirii ol' Writ for Servici' out of jurisdiction, InMorsi'iiK'iils on Writ, Iiidorsi'ini-nts of Claitn, Atli'lavil of Si-rvict- of Writ of .Summons, Aiipi'Mriinct!, IndorsfMii-nt of St't-olf or 'Jonnter-clulni, Allidiivit to k'iid Warrant, Warrant, L'urtilicate of Service of Warrant, Bailbond, ... (Commission to take IJail, Atlidavit of Justilicatioii, Notice of i'.ail, Notice of Objection to IJail, ... Kelease I'leadin^s, Interro;?atories, Answers to Interrojj;atories, ... Atlidavit of Discovery, Notice to I'roting or rejecting Tender, Interpreter's Oath, ... A[)p<)intnient to Administer Oaths, Oath and Dechiration by Witness Oath to be Administered to a Deponent, Jurat, Order for Examination of Witnesses, Commission to lOxamine Witnesses, Keturn to Commission to Examine Witnesses, Sliorthand Writer's Oath, Notice of Trial, Registrar's Report, ... o36 'am: •l.-d ).■.! I"''.' 4.-.J 4.V5 Title of Action in trin, Tith' of Action in pcvuinmin, ... Title of .Action in llic Name of llu' Crown, Writ of .Summons in van, Writ of Summons in iier-idnani, \Vrit of Summons in piTnoiKtm for service out of jurisdiction, 4."il 4.-.^ 4.V. 4"iii 4'>[> l.-iD I'.o -Itiii Itil 4liL' 4i;-j 4(i;; ■\iv.\ 4tU 4i;i 4i'm W) 4'.i") 4'.t.-. -J'jr, I:C lO^ 4W 4',t',i -lliy ."(Oil .^IIU .jOo rm .")01 ,i(i] 5II-J .".irj .")o;; .">04 .Mi4 ."^ii4 4S. I'.i. .'ill. .■)!. ."I'J. ')',\. .".I. ■')■'. .■)t"i. ."i7. .')S. .■(',1. III). (in. «i4. C..'). 111'.. • 17. il>i. (\\>. 70. 71. 72. 7:5. Ai'i'i:xi)i.\. i)o< I'A(.I IM I'.l v>-: 4rr: 4.-,:' IVi • tioii, 4.VI 4.->) 4.M 4.-II'. 4'i',t -I.'.lt \<-A) 4') 4!t.') 4:(:, 49(1 4li7 4'> 411',' 4',i',i , 4',t9 "iiio ."i( 10 ."lOO .")01 .",(11 oUl 5(i-J .")i)J ."id;; .V14 .")04 ."^(M 44. Ctjiiiinis>i(iii nt" A|i|iiiilst'iin'iit, 4"). ('orimu»inii nt' Siilf, 411. 47. 4S. I'.i. ■'ii •. .'.1. .■)'J. C'Kiinnissioii nf AiipruiHi'iuent ami Sale, Oiniinission nl' Iicnioval CoiiiMii-^-iiipii t'lir l>is liai'iii' til' (aiKi), ... ( '(iinniis,>4i()ii I'or I)'.'iiiiiliiiiii) ami Sale,... OrdiT I'll" liis|n'(ii(in, Xoticf III' |)i-c(iiitiiiiiaiici', Ndtii'f t(i I'litfi' .)inlj;iiH'iU I'or ('(ists, .'ill. Notico (if Mntinii (111 .\|i|i('al, .")!. Ivcci'ivalik' < )i(li'r, ... .")"i. Order I'or I'aviiiciit out of Court, .'itl. Notice for Caveat Warrant, ... .'•7. (.'aveat Warrant ')S. Notice I'or Caveat Kelease, •"I'.t. Caveat Kelease, til). .Notice for Cave.'it I'avmeiil, ... (il. Caveat I'aviueiil, il"_'. Notice for Withdrawal of Caveat, «'io. Suli|i(i'na. ... ()4. SiililKciia (/»f('.s ^cc""!, fp). Order for I'ayineiit, til). Attat'linient, <17. Order for Coiuiuittal, (is. (.'oniMiittal, (ill. Minute (It) l''ilinj^ any Doeuiiient, 70. Minute of Ordeidf Court, ... 71. Minute on K.'cainination uf Witne.'tKce Copie.s, Searches, etc., TI. By tlie Assessors, HI. By a Conitnissioner to E.xamine Witnesses, IV. By a Couunissioner to take Bail, V. By the Marshal or Sheriti; VI. By Appraisers VII. By Solicitors, VIII. By Counsel IX. By Shorthand Writers X. By Witnesses, I'.\.;e . .Vm» . •.07 . •■.07 . ."iliS ."tti'.i . .'■)lo . ."iK" . :.ll . .'ill . .".II . rA-2 . .".i:? . ."ii;! .".14 . .-114 . r,\-i .-.1.". . .".If, . .•.If. . .".If. . .'.17 . .'J17 . .")18 . ••.IS . ol'.t . .".19 . .")1H ."vjli . .'.-J.J . 0-J7 ,. ■•.L'7 .. .".l.!7 „ r,-27 ,. .5-JS ,. •'.•_».s ,. ."j28 ,. r>2S .. .r_'8 .. 'y2'J .. n-I'J .. 530 .. .')3o .. .531 ,. .'.32 ,. o32 K VI w 1. ' jiirisd co-ou inviiei n('('(l volve 1. 2. 1)I(;KST 01' CANADIAN \'1CE-AI)MIRALTY CASES. AHANIK)NMi:XT. When it dots not courttitiiti' tlio vexsel di'ivlict. St'c Dvreflrt. Tht ChurlvH Forbe.'*, Yoiiiig, 172. ACCIDKNT. Sec Inrv!ti(h/i', Acri'dciil. See CollLvoii. M."), MM, If)'). ACCOUNTS. 1. The Exflioqiicr Court, uiidor tlie Admiralty Act, 1801, liiis jiirisdiction to lu'iir and di'tcrniiiic actions of account hctwccn co-owners of a sidi). Sciiih/c, That in un action i)V the inana"-in"- nwner of u slii|» aj^ainst his co-owner, tiic in(h)rsenicnt on the writ need not show that there was any dispute as to the aiiKtunt in- Vn Ived. The Seaward .'5 E. C. K. 2G8. See WagcH of Munter. ACTS OF PARLIAMENT. United KiN(iDoM. 1. 12Char. II. c. IH, s. 2. 30 Goo. II. c. 7. Aliens settling in colonies. 80 Geo. III. c. 27. Relatini; to aliei ens. 37 (ico. III. c. 97. To confirm the American Treaty. 4!> Geo. III. c. 107. Oflences— Where to he tried. The Proridence, Stewart, 186. 2. 7 & 8 Wni. III. 0. 2, s 2. Coasting trade of col onies. 26 Geo. III. c. 60, s. 8, "People" equivalent to inhabitant:- 34 Geo. III. c. 68, s. 14. Recital in bills of sale of ships. 26 Geo. III. c. 60. s. 18} 27 Geo. III. c. 1!), 8. 7 ) ^''^''"^^^ "^ ^^^'^'*'^'•• The Friends Adventure, ibid, 200. 49 Geo. III. c. 49. 52 Geo. III. c. 20. As to importations into Nova Scotia. The Econonuj, ibid, 446. See Navigation Laws. 539 MO DKJKST. ?i < ilPPt L|./n nj Piirli'llfillt.) 3. All Act to improve' the practice and extend the jiirisdictidii cW the Hi;rh Court of Admiralty of ICnghiiid (August 7. \> al)road, and lo coidirm Uie past proceedings, to extend the juri> diction, and lo amend the practice oftho.se Courts. "TlieVi(c- Admiralty Courts Act, IHGo." Cook, 374; 2 Stuart, 2r)3; Stock- ton, 30(1 9. An Act to exteihl and amend the Vice-Admiralty Courts Aci, l.s<)3 (]r)th July, 18(37). Cook, 381 ; 2 Stuart, 'l')'^. V). An Act to extend the jurisdiction, alter and amend the pm- ccdure and practice, and to regulate the estahjishnient of the Court of Admiralty in Ireland (Aug. 20, 18(;7). 2 Stuart, 261. 11. An Act to regulate the conduct of Her Majesty's subjects during the existence of hostilities hetwi'cn Foreign States with which Her Majesty is at peace (Aug. !>, 1870). 2 Stuart, 28(5. 12. An Act to provide fo.- the prosecution and trial in H( r IMajesty's colonies v>f oHences committed within the jurisdiction of the Adn.iralty (Aug. 1, 184!)). antt, p. 324. 13. All Act to amend the law respecting the exercise of Admi- ralty juri'jdiction in Her Majesty's doinini(r.s and elsewhere cut (4' (he I'liitcd Kingdom. The Co/oiiiaf Courts of Admiraltif Act, ISW (July 2"), 1890). Stockion; ante, \i. 387. Canada. 14. An Act respecting investigations into shipwrecks (June 3(), ls(>4). 2 Stuart, 31 T. 15. An Act respecting tlie navigation of Canadian waters (May 22, 1868). ibid, 315; ante, p. 372. 16. The Admiralty Act, 1891. Stockton, 402. See/)o«<, Index, Statutes. 1. rules •J!i 1 T hi.« a DKJKST r)U ; jiiri.«(li('ti()ii ni' tlic practice nf 2 Stiiiii-t, 247 : ACTS OF ('()N(;KESS. 1. Act of Congress -f the ruited States of America fixing Cv^taiii rules and regi.lation.s for preventing collisions: on the water (April •j!i. 1864). 2 Stuart, 808. 2. An Act to aid vessels wreck'^d or disabled in the waters con- tcrniinotis to the United States and the Dominion of Canada (M:iy •J4, 18!)U). Stockton, 1S4. f certain ofleii- imirals and it }''s l)o.ssessioii> :cnd the jnri.- . "TheVic- t, 253; Stock- V Courts A Cl, nend the pm- t of the Court 2()1. csty's suhjects 1 States with lart, 28(5. trial in Hi r urisdictiou nf 'ise of Adm:- ewhere out (4' uHi/ Act, IS! Ml 'ks (June .'JO, waters (.Alav ADMIRAL. The Lord High Admiral — his office, power, and the history of li- ai)i)ointme'uch ship or vessel may have oeen within the body of a county, >vork dune ni nuvterials furnished in England to ships owned there, ibid. 16. Nor has the Vice- Admiralty Court of Lower Canada jurisdii - tiou with respect to claims of material men for materials i'urui.-hi d to shijjs owned there, ibid. DrUEST. 543 ends upon t!,,.' igh seas. ibid. Quebec are iidt see now coutrd, )nal torts coin- arising on the is undoubted. )een a previous the same cause ilots for extra •vices rendered atwithstandintr 1 limits of the 'r~ or owner df thereof. Stuart, 1S7. Admiralty lias linage to any ereof, whethtr f a county, nr I accrued, e, ibid, 2G7. statute, with hed to foreii;ii vork done nr ibid. iiada jiirisdii- al.s fiiriiishcil {A(/ii) iraU// Jurisdictiort.) 17. The Court of Vice-Admiralty exerci.ses jurisdiction in the Cii.se of a vessel injured by collision in the river St. Lawrence, near the city of Quebec. The Newham, ibid, 70. IJS. The Admiralty has jurisdiction in cases of pos.session, at the suit of ownei"s of ships to obtain pos.session thereof. The Haidee, 2 Stuart, 25. (The nature of the jurisdiction in cases of possession antecedent to the passing of the 3 & 4 Vict. c. 65, which enlarged it, will be seen from the judgments of Lord Stowell upon that subject, which lire collected together in Pritchard's Admiralty Digest.) 19. The Admiralty has jurisdiction in cases of collision occurring on the high seas, where both vessels are the property of foreign owners. The Anne Johunne, ibid, 43. 20. Difficulties as to the jurisdiction of Admiralty, which had <'ontinually occuired from the words of the statute of Richard II., are now wholly removed by the 3 & 4 Vict. c. fi5, passed Aug. 7, 1840; "The Admiralty Court Act, 186]" (24 Vict. c. 10); and "The Vice- Admiralty Courts' Act, 1863" (26 Vict. c. 24). ibid, pp. 235. 247, 253. [The Vice-Admiralty Courts' Act, 1863, was repealed by '' The Ctjlonial Courts of Admiralty Act, 1890" (Imp.)]. 21. As to jurisdiction in respect of forfeitures of ships for offences against " The Foreign ?:nlistment Act, 1870." See 33 & 34 Vict. ss. 19, 26 and 30 ; 2 Stuart, pp. 286, 292, 295, 297. 22. "The Admiralty Court Act, 1861," does not extend per se to the Vice-Admiralty Courts. The City of Petersburg, 2 Stuart, 351 ; s. c. Young 1. 23. For Admiralty jurisdiction as to Courts of Vice- Admiralty. See Vice-Admiralty Courts. See CoUisioH, 63-95. 25. Her Majesty, by commission under the Great Seal, may empower the Admiralty to establish one or more Vice-Admiralty "■ ' " ' possession whi any 1> may <|uired independent legislative powers (30 &, 31 Vict. c. 45, s. 16). Cook. 383. (This i^ now regulated by " The Colonial Courts of Admiralty Act, 1890.") 26. The jurisiliction and authority of all the existing Vice-Ad- miralty Courts are declared to be confirmed to all intents and purposes, notwithstanding that the possession in which any such I, 544 DKJKST. (V)urt has been established may, at flio time of its estahlislimeiii, liave been in possession of U'gishitive power, iln'd. 27. Vice-Admiralty Courts have jurisdiction in all cases of breach of rcijulations and instructions relating to Her Majesty's navy at sea, and in all matters arising out of droits of Admiralty (20 Vict. c. 24, s. 10). Cook, 37() ; u)dr, p. ;]57. 2H. The jurisdiction in n.'spect of seizures for breach of tlic revenue, customs, trade, or navigation laws, or of the laws relatiiiir to the abolition of the slave trade, or to the capture and destructinn of pirates and piratical vessels, is not taken away or restricted liv "The Vice-Admiralty Act, IWA" (26 Vict. c. 24, s. 12). Cock. pp. 370-7. See ante, p. 357. 29. Nor, in any other jurisdiction, at the time of the passing of that Act, lawfully exercised by any such Court, ibid. 30. The jurisdiction of the Vice-Admiralty Courts, except where it is expressly confined by that Act to the matter arising within tlic possession in which the Court is estal)lished, may be exerciscil. whether the cause or right of action has arisen within or beyond the limits of such possession. Ibid, Cook, 370; ante, p. 357. 31. Vice-Admiralty Courts have jurisdiction in respect of seizures of ships and vessels fitted out or e(iuipped in Her Majesty's domin- ions for warlike purposes without Her jNIajesty's license in contra- vention of the Foreign ICnlistment Act, 1«70 (33 & 34 Vict. c. !)0). 32. The Court has jurisdiction to entertain a suit promoted hy the owners of a towed vessel against the tug for damages sustained by the tow, through the negligent navigation of the tug, having been brought into collision with another vessel. The William, Cook, 171. 33. While the Court can enforce the payment of reasonalile towage, it cannot award damages for breach of an alleged towa;4e contract ; '■. //., the refusal of a vessel to carry out an agreement to employ a particular tug. The Euclid, Cook, 2H0. 34. The Dominion Parliament nuiy confer on the Vice-Admiralty Courts jurisdiction in any matter of shipping and mivigation within the territorial linuts of the Dominion. The Fareivell, Cook, 2''<2. 35. Wiiere an Act of the Dominion Parliament is in part re|)ii_'- nant to an Imperial statute, etiect will be given to its enactment- in so far iMily as they agree with those of tlie Iinj)erial statute. ibid. I)IGF8T. 545 istal)lir«hiiicMit, ( Adiit irdltii jHi'lsd'tction.) oH. The Court will ho guided by circumstances, in exercising or declining to exercise jurisdiction, in the matter of suits for wages by foreign seamen, when the consul of the country to which the vessel proceeded against belongs protests against the further prose- cution of the suit. The Br'idgcwater, Cook, 257 ; The Monnr/:, Ccok, 341. 37. Where a vessel under charter was injured by collision cau.sed by another vessel, the charter party providing that in case of (lanmge the hiring should cease until she could be repaired : Held, that an action by the charterers against the offending ship for the detention would lie. The Netilesworth, Cook, 363. 38. The Vice-Admiralty Court at Quebec hjis no jurisdiction over cliiims l)etween owners when the ship in relation to which such claims are asserted is registered in another ])rovince as in the pro- vince of Nova Scotia. Tlie Edward Barrow, Cook, 212. 39. The jurisdiction conferred by the Vice-Admiralty Courts Act, 18(53, does not, in the case of damage by a ship to a wharf, extend so far as to enable the Court to award con.sequential damages occasioned to the traffic of a lessee. The Barcelona, Cook, 311. 40. The Court cannot exercise jurisdiction so as to give ettect to an agreement between the owner and master of a vessel where the duties to be performed by the latter are miscellaneous and not exclusively those of a master. The Royal, Cook, 326. 41. In so far as regards Canadian registered vessels, the Court can entertain claims for masters' and seamen's wages if the amount due is or exceeds two hundred dollars, and this under the Dominion statute, the Seamen's Act, 1873. ibid. See contra. The Jonathan Wilr, Stockton, 79. But see note ibid, p. 80, contra. 42. The Vice-Admiralty Courts Act, 1H63, has not affected or repealed the I89th and 191st sections of the Merchant Shipping Act, 1854. The Roj/al, Cook, 326. 4:). The l)S9th section of the latter Act api)lies to foreigners as Well as to British vessels, ibid. 44, Since the passing of the statute 26 ife 27 Vict. c. 24, s. 10 ( riie Vice- Admiralty Court.* Act, 186.')), the Court has jurisdiction III entertain a claim for damage to a railway car standing on a wharf within the limits of a county, by the hawser of the vessel "lining in contact with the car and overturning it. The Teddin(/ton, •'^iiicktoii, 45. mt M ,.'<■' 646 DKiEST. (A (hn indt'/ Jiirixdii'li'in . ) 45. A foreign steamship, the E., while in the harbor of St. Joliii, N. B., h)ading a cargo of deaL«, bought and received on board a , attorneys-at-law, and solicitors, and shall in like manner be subject to the authority of the pei*son for the time being lawfully excrcisiiii: the office of judge of such Court. 30 & 31 Vict. c. 45, s. lO. Cook. 383. 2. Non-payment of fees received by advocate or proctor fur Registrar is a bieiich of discipline of which the Court may take notice in a summary manner. E.r parte JJrolef, 2 Stuart, 1. See Prociovii. AFFIDAVITS. See Evidence. ALIENS. 1. They do not bccijuio British subjects by the oath of allegiamt'. and arc not ]>rivilcgcd by the license of the Governor of Nova Scotia. 77(e Proridciur, Stewart, I'SfJ, For statutes relating to, see Stockton, (Uiie, p. 328. K.S, C. c. U->. DIGEST. 547 loi" of St. Joliii, ed on hoard a were piircliaseil ; coal merchant il. The r^tcaiii >y the E. Tlif coals on board, of the hoi.stiiiir lied again^^t the that the Vici- did not confer ', Stockton, l.")7. H case nui.>jsadt)rs are entitled to credit without i'lirther evidence. 77ie Amanda, ibid, 442. 3. Eor the mode of proceeding upon an applicatiou after sen- tence, see ibid, 442. AMENDMENT. See Practice. See note to The Maud Pye, Stockton, p. ICo. See Error. AMERICAN WAR. 1. The declaration of war l»y the United States in 1812 against Groat Britain did not place the two countries in a comi)lete state of war till the order for reprisals hy the British Government, and American property found in the British dominions not liable to be SL'ized on the breaking out of hostilities. The Dart, Stewiirt, oOl. APPEAL. 1. The appellate jurisdiction of the High Court of Admiralty from Courts of Vice-Admiralty is by 3 & 4 Will. 4, c. 41, trans- tarred to the Judicial Conunittee of Privy Council. 1 Stuart, 5. 2. An appeal from a decree or order of a Vice-Admiralty Court lii's to Her Majesty in Council ; but no appeal shall be allowed, save by permission of the judge, from any decree or order not having the force or effect of a deiinitive sentence or final order 2(5 Vict. c. 24, s. 22); ai)peal to l)e made within six months. s. 2'), 2 Stuart, 2o7. See also The Ttddington, Stockton, (55 n. (See now, however, "The Admiralty Act, 1891.") APPENDIX. 1. Commission of Vice-Adniiral under the Groat Seal of the High Court of Adniiralty of lOngland, to Jaiiios Murray, Captain- (ifiioral and (Jovornor-in-Cliiof in and over the I'rovince of (Quebec ill America, dated ^larcli 1!), 17(54. 1 Stuart, MO. -. Conjinission unilor the Great Seal of the Hij:h Court ui' Admiralty of England, apjtointiug Henry IJlack, Judge of tiio Vico-Admiralty Court of Lower Canada, dated ()ct(jber 27, 1838. '/"•/, 37(1. ¥ 648 DIGEST. (^1/) nillx.) 3. Coraniission under the Great Seal of Great Britain for tlie trial of offences committed within the jurisdiction of the Admirahv of England, dated October 30, 1841. ibid, 380. 4. Opinion of Kerr, J., in the following cases : The Camillus, ibid, 383. The Colddreum, ibid, 38(5. 5. The several comnuHHions in continuation of the above conuiiic- nion of vice-admiral down to the present time, with their respective date?, ibid, 390. 6. The several judges of the Vice-Admiralty Court of Quebec since the cession of the country U) the Crown of Great Britain. ibid, 391. 7. For contents of, in 2 .Stuart, see \>. 233 thereof. 8. For cnitents of, in Cook, see j). 372 thereof. APPOINTMENT. 1. Of Vice-Admiral, or any Juiilf:(', Registrar, Miirslml, or other iifficer of a Vice-Admiralty Court established in British possession-, 2H Vict. c. 24, ss. 3, 4, o, 6 and 7. 2 Stuart, 254. (See now, however, "The Admiralty Act, 1891.") APPRAISEMENT. 1. An appraisement of a derelict ship was objected to on (lie grounds (1) That the appraisers had been chosen by the proctur for the salvors ; (2) That the writ had not been directed to tlie marshal or to the commissioners, but to the appraisers tiiemseHc-. The Cambridge, Young, 63. 2. Directions as to proper method of executing appraisement nt shi]) and cargo, see The Regina, ibid, 107. 3. When ?.n appraisement is ordered by the Court at the instaiiee of the salvors, with a view to a decree, and ha? been duly made l»y reliable parties, the Court will not a'l'nv it to l)e (juestioned. Tin S. B. Hume, ibid, 228. 4. After two coniuiissions ef appraisement had 'u'Cn issued, ami the returns in both cast's found too high, so that no sale could lie ert't'cted, the Court fixed an upset price, o dered a sale at slioit notice, and made a decree upon the proceeds thereof. The Oun- bridge, ibid, ()4. ppraisenient of DIGEST. (Ai>i>r(t)sniici)t,) 0. A commission of sale may issue in the fii*st instance. Thi' yvvdcap, Stockton, p. 173. (). See Rules 145 to ir)4 of 1803, for present practice as to ap- praisement and .sale. ARTS AND SCIENCES. 1. They are protected from the operations of war. The Marquis ik Somerueles, Stewart, 482. ASSAULT. 1. As to the authority of the master of a merchantman to inflict punishment on a passenger who refuses to submit to the discipline of the ship. The Friends, 1 Stuart, 118. 2. Assault and battery, and oppressive treatment by the master of a ship upon a cabin pas.senger — charge sustained. The Toronto, ibid, 170. 3. No words of provocation whatever will justify an assault, ibid. 4. If provoking language be given, without reasonable cause, and the party offended be tempted to strike the other, and an action liiought, tli(^ Court will be bound to consider the provocation in a>sessing the damages, ibid. !). To constitute such an assault as will justify moderate and reiisonable violence in self-defence, there must be an attempt, or : The Jjombard and Farewell, 289 ; The Monica, 314 ; The Signe ar.d Rose C, 3(!6. See Collision, No. 46. ASSIGNMENT. See Bottomry Bond, lAen, Salvage, 1, 2. Cook, 178. 1. Except in ease of hottoiury, a maritime lien cannot be assigned. Stockton, ante, p. 139, note. ATTACHMENT. 1. Attachment awarded against a master for taking out of the jurisdiction of the Court liis vessel, which had been regularly attached. The Friends, 1 Stuart, 72. 2. Application for an attachment for contempt for resisting tlie process of the Court rejected ; the statement of the officer being contradicted by the affidavits of two other persons present at the arrest. The Sarah, ibid, 86. \''n\g cases: T/ie DKIKST. iAHfK-lllllfllf.) .'}. Application for an attachment for contempt against a magis- trate, Hr.st seized of a si-amau's suit, for iiavinj; issued a warrant and iiri'ested the seanuui whilst attending his proctor for the jjurpose of hringing the suit, rejected. The ImheUa, ibid, 134. 4, Attachment decreed for contempt in obstructing the marshal ill the execution of the i)rocess of the Court. The Delln, ibid, 207. ATT( )KNEY-GENEHAL. 1. During the absence of the Attorney-General, the powers and duties of tiie office devolve upon the Solicitor-General, The Dum- iries»hire, 1 Stuart, 24"). 2. In New Brunswick, the like rule is laid down by Act of Assembly. 52 Vict. c. (J, s. 2 (188!)), p. !'2. BAIL. 1, The bail of a party is an incompetent witness on his behalf. The Sophia,! Stuart, 219. [This was decided in 1839, and is not now law.) BATEAU. See Jurisdiction, 12 — 1 Stuart, 213. BERTH. See Foul Berth ; Collision, 3. BERLIN. See Decrees. BLACK. The Hon, Henry, C. B. 1. O|)iuions of, noticeil I)y the Chief Justice of Nova Scotia, in 2 Stuart, 348 ; Young, 1. See Prejutory notice to same volume. 2. He was judge of (Quebec Court from 1830 to 1873. Cook, 413. BLOCKADE. 1. Of Martinique — evidence of, and knowledge of the parties. The Xancy, Stewart, 28. 2. Of the same place — closely blockaded from June 16, 1803, to the end of May, 1814. A vessel taken two months after the block- ado had ceased, restored with costs. The Betsey, ibiil, 39. 551 m 5r)2 DICKST. {lilnrhti/r.) .*], orCurncou — cxciLxi's for hrcaclu's of iiiwiifticient. T/if El'r.n- beth, I hid, Hi). 4. Merely cHiTyiiig pn'm-iigerH no excufo for broakinj; a hloekiulf. Thr TumunlnHith, ihid, 'J54. •'). As to a p'iK'ral blockade — of all places under the j;overiuiU'iit of Franco — IIaniliur>f within its terms. Cargo l)rouj;lit from u blockaded port by land, and shipped in an open port, not contis- cal)le. The Tliomus Wllmn, Ihul, 2(i!>. <>. Of ('openhaj,'en and Zealand did not extend to other Danish ])ort«. The Kvpn'Hs, ibid, 292. 7. Of Leghorn broken by bringing goods thence by sea to Civitii \'ecchia. The Marquis de Somenieles, ibid, 445. 8. Of New York. It must be de facto as well as a notification. The l)lockade of New York commenced June 22, 1813. Aftir public notification, the actual investment constitutes a completc blockade without further notice The Republican, ibid, 571. 9. When a blockade has been known to exist the claimant must prove the relaxation ; but where it is not known that a blockade has been commenced, it is for the captors to establish it by evidence. Jjicensed vessels not aflected by an order for blockade, when such appears to have been His Majesty's intention. A blockade atlects the enemy only de facto — neutrals de jure. The Orion, ibid, 497. 10. When a blockade has been notified publicly, no further information is neces.«ary, and if a vessel knowing of such notifica- tion sails to the port and finds it blockaded, it is a breach of the blockade. The Carlotta, ibid, 539. 11. Vessels associated for a blockade entitled to share in captures of the enemy's property, though driven on shore and seized there. The FUyht, ibid, 559. BOTTOMRY BOND. 1. Jurisdiction in respect of bottomry or resjwndeidia bonds con- firmed by the "Vice-Admiralty Courts Act, 1^03." See 2Stuart. p. 255. 2. Advances, which may become the subject of bottomry, mu.-t be advances made for the .•'ervice of the ship during the particular voyage for which she is engaged. The Adonif, 2 Stuart, 125. 4. iste( 1)^ a hlockiiilt'. 10 jrovoniiiiciit ■oujrlit IVdiii a »rt, not I'oiiti.-- ) utiior Diiiii.'^li \f sea to Civita a notificatiitii. 1818. After ?H a complotf id, hl\. clainiaiit must lat a hlockadf t by evidoiK'c. le, when such )ckafle atlt'fts m, ibid, 4!)7. y, no iurtlicr such notifica- )reach of the re in captiin < seized there. in bonds coii- See 28tuaii' •ttoniry, niu.-t le particular irt, 125. DKiKST. ( /!i if funny Jiiini. 7. Admiralty Courts recognize the negotiability of bottomry bonds, but aid their transfer reluctantly. The City of Munitou'w, Cook, 178. 8. A vessel owned and registered in New BrMUswick was sent with a cargo of deals from that proviiuie to Queenstown, Ireland, the intention being to sell her to best advantage, after arrival and discharge of cargo. Efforts to sell the vessel were not successful, and after renuiining some time at Queenstown, the at'cnt, by diree- tiouH of the owner, instructed the captain to return with the vessel ill ballast to New Brunswick. Unal)le to get needed funds from the owner or agent to make neces.sary disbursements for return voyage, the captain, after due notice, borrowed from plaintiff' the reipiired amount on bottomry and brought the vessel back to New Brunswick. After her arrival, the bondholder, not being able to (ilttain i)ayment, began suit for recovery of the amount. The owner and mortgagees of the vessel objected to the validity of the bond. on the ground that, under the circumstances, the voyage was ended at (^ueenstown ; that the vessel recjuired no repairs for a new voy- iij^e ; was in no distress, and that the captain had no right to give tiie bond, liut Held: That as the ve' el was sent for sale, and tliat not being efiected, the return was but a continuation of the voyage across ; that Queenstown was a foreign port ; that as the t not be sufHcient cash or credit available to the master to pay tin- amount of tlie indebtedness so incurred. (2) A i.iaster gave a bottomry bond on his ship for rej)airs executed .some t'me Micvious to the voyage he was then prosecut- ing, and which ven-. done entirely on his per.«sonal credit at tin- time and uj)on the distinct understanding that he W(juld not he required to pay oi them antil his return from another voyage. It also appeared that the master had not communicated with the owners before entering into the bond, although means of communi- cation were open to him ; and it was, moreover, shown that the ship had enough credit at the ])Iace where the bond was made to pay the whole amount of the claim. Held : That the bond was void. (8) A ship-broker's commissions cannot be the subject of a Ixit- tomry bond. The St. Joseph, 3 E. C. R. 344. JiK()U(JlIAM (LOUD). 1. The Imp. Act 14 <\' 1") Vict. c. !>!(, is coiniuouly called Lord Brougham's Act. Ii makes th.e evidi-iice of interested persons admissible. The Courier, - Stuari, p. 9"). CASK.-;. For l'>t of, under .siiling ri'gulations, see ante, p. ))H."). CFRTIFK'.VTLS OF ORKaX. As to ground of conti) blame, as where there has been a want of strict or due diligence on both sides. (4) Or, the loss and damage may be owing to the fault or niisct)nduct 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 apportions the loss between the parties, ;i3 having been occasioned by the fault of both of them. In the fourth case, the injured party is entitled to full compensa- tion from the party inflicting the injury. The Cumberland, 1 .Stuart, ""> ; The Neimn ViUnfff, ibid, 15(5; The Grace, Stockton, 2fi n. (The above possibilities of loss by collision were thus noted by Lord Stowell in The Woodrop-Sim.^, 2 Do'Js, HX) 2. Owners of vessels are not exempt from their legal responsi- l)ility, notwithstanding that their vessel was under the care and management of a pilot. The Ciimber/und, 1 Stuart, 7o. .'). A vessel ixiving a foul berth to another vessel is liable in ilamatres for collision done Lu the vessel to which such foul berth was iriven bv her, although the immediate cause of the collision was a ri,i niKJor, 'xiu\ I'o unskilfulness or misconduct was imputable to the iitleiidirg vessel after giving such foul berth, ibitl. 4. In a case of collision between two ships ascending the river >t. Lawrence, the Court, a-ssistt'd by a captain of the Royal Navy, pronounced for danuiges, holding that when two ves.sels are crossing each other in oppositi' directions, and there is ddubt of their goinir ( lear, the vessel upon the port or larboard tack is to bear up and heave alxtut for the vessel upon the starboard tack. The Xel.ioii lilbifft', ibid, !.')(}. ill tl In cases of collision arising from negligence or unski lot h Iful le management of tiie shi|) doing the injury, a pilot havsii nes th (•iiutroi of the ship is not a competent witness for such ship, without a release, althougii the master is. Thr Lord John Tiunnf//, ibid, lilO. >ee Willi es/H. 10. The circumstance of having a pilot on board, and acting in conformity with his directions, does not operate as a discharge nt" the responsibility of the owner, ibid. 11. Vessels are required of a dark night to show their position by a fixed light, while at anchor in the harbor 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 Cmnpbell, ibid, 222. 12. The master may avail himself of the wind and tide, and sail into port by night as well as by day. ibid. 13. By-laws of Trinity House, respecting lights, not abrogated by desuetude or non-user. ibid. 14. The hoisting of a light in a river or harbor, at night, amid an active conunerce, is a precaution imperiously demanded by pru- dence, and the omission cannot be considered otherwise than n« negligence jter m. ibid. lo. By-law of the Trinity House of April 12, 18-")0, retpiiros a distinct light in the fore-rigging " during the night." ibid, 22o, noti-. 16. In a case of collision against a ship for running foul of ;i floating-light ves.sel, the Court pronounced for damages. The Mirn- michi, ibid, 237. See No. 1(54, The Minnie Gordon, Stockton, 95. 17. In such case the presumption is gross negligence or want of skill, and the burthen is cast on the ship master to repel that prt • t'uinption. The Miramichi, 1 .Stuart, .^37. 18. How ships moored are protected against the intrusion of .l(l, 225, note. ing foul of ;i The Mil"- •e or want of )el that prt- intrusion uf' {0,li;.^-io,K) 19. The omission to have a light on bf)ard in a rive * or harbor at night amounts to negligence per se. The Dahlia, ibid, 242. 20. Every night in the absence of the moon is a dark night in the purview of the Trinity House regulations of the 28th June, 1805. ibid. 21. ^lore credit is to be given to the crew who are on the alert than to the crew of the vessel placed at risk. ibid. 22. The regulations of the Trinity House require a strict con- struction in favor of their application, ibid. 23. Having a light on board in such case is an indispensable precaution, ibid. 24. In a cause of collision where the lo.^s was charged to be owing to negligence, malice, or want of skill, the Court, with the assistance of a captain of the Koyal Navy, being of the opinion that the dam- age was occasioned by accident, chiefly imputable to the impru- dence of the injured vessel, and not to the misconduct of the other vessel, dismis.sed the owners of the latter ve.ssel, with costs. The Leonidas, 1 Stuart, 226. 25. The general rule of navigation is, when a ship is in .stays, or in the act of going about, as .«ho '..ocomes for the time unmanage- able, it is the duty of the ship that ia near her to give her sufficient mom. ibid. 26. But when a ship goes about very near to another, and with- ,s 1)1(4 KST. (Co/ll/iilltl.) 30. Where it appfarod that the collision was the effect of niero accident, or that overriding necessity which the hiw designates hy tiie term vis mnjor, action dismissed, with costs. The Sarah Aim, 1 Stuart, 294. 31. In order to support an action for damages in a case of colli- sion, it is necessary distinctly to prove that the collision arose from the fault of the persons on hoard of the vessel charged as tin; wnjng-doers; or from the fault of the persons on board of that vessel, and of those on board of the injured vessel, ibid. 82. Where both parties are mutually blamable in not taking measures to prevent accidents, the rule is to ai)portion e(|ually the damages between the parties according to maritime law as admin- istered in the Admiralty Court, ibid. 33. Two steamers were going from Montreal to (Quebec, anil when opposite the city of (Quebec, the one took the course usual on such occasions, and pas.sed down below the lowermost wharf at the mouth of the river St. Charles, when 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 nuide a short and unusual turn, with the intention of passing acro.ss the course of the former, and ahead of her after she had turned and was coming against the tide. He/d: That the collision comj)lained of resulted from a rash and hazardous attempt on the part of those on l)oard of the steamer which madi! 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 seamanship, for the purpose of being earlier at her whaif. The Crescent ; The Rouiund Hill, ibid, 289. 34. MaiKJL'Uvres of this dangerous kind, which might, in a crowdotl j)ort like that of (Quebec, result in the most serious loss of property and of life, ought to be discountenanced, ibid, 35. in this case the objectionable mameuvrc appeared to have proceeded from a spirit of eager competition and from miscalcula tion, and not fniUi any attempt to injure the competing vi'ssel. ibiil. 3(5. The settled nautical rule is, that if two sailing vessels, hntl; u[)on a wind, arc so approaching each other, the one on the star- board and the other ou the port tack, as that then; will be a danger of collision if eai'h continue her course, it is the duty of the vcsmI on the i)ort tack iiuniediatdy to give way, and the vessel on the ]»ort tack is to bear away so early and eifectually as to prevent all <'han( 1 Stu 37. down pool, night lights hiih, 3H. leavii any .39. ])I(;kst. :);')9 effect of luero (le.-'i-riiato.s liy « iSarah Aidi, ease of eolli- 011 arose from larged as the joard of tliat hid. n not takiiiir n ecjually tlic aw a.s adiiiin- (iuelu'c, and course usual lost wliarf at to stem the 1" jiasseiigers ; and unusual f the former, s,' against the I from a rash f tlie steaiiitT L'ourse of the le river, and iig earlier al d. in a crowdoij of property red to have miscaleuhi Vessel, ibi'il. ^■('sscls, hot I, on the stai- lie a danger if the vessel 'ssel on tlir JU-eveiit ill! (Co///.sv-o//.) chance of a collision occurring. The liosUn CaMle; The Glencairu, 1 Stuart, 303. 37. The Court pronounced for damages against a ves.sel sailing ])octator, there must be gross negligence, ibid. 44. If t'le colli-ioii arose solely from the misennduet of those on l)oai'' crushetl vessel and the wharf, and thrown nearly on her bi-am eml«. therebv receiving great damage, the owner of the vessel so coiitni- vening the harbor nnister's orders, condemned in damages ami costs. Ibid. ')2. Hy the Menthant Shipping Act (17 it 18 Vict., c. 104,.--. 2!)<), 21)7) and the Steam Navigation ;\ct (14 it 15 Vict. c. 7!»). :'■ well as by the rule of the 'I'rinity House of (Quebec, when ii steann i- meets a sailing vessel going tree, and there is danger of collision, ii ii sail liclm there her t( with DKiRST. 561 on of axscxsors, id case t)}' this uestion.s to he Jt, and if the after the time akeii the must all but iiievii- t one who has V that rule to oid the injury diips or vessels ,' wharf witlun ;, and shiftinjx I't, Ibid, -.Vl'). by the harbor and the har- 'nst to remain jf tile master neurrev iet. e. 7'.»). •^^' leii a steamrr it' collision, ii is the duty of each vessel to put her helm to port and pa.«s to the right, unless the eireumstanees are such as to render the following of the rule impracticable or dangerous. The Juf/a, 1 Stuart, o'lf). bci f( d f( )t folic thi 53. No sufficient excuse Doing tcuiul tor not tollowing this nil a sailing vessel condemned in damages and C()sts for ])utting her helm to starl)oanl, and passing to the left >f a steam tow-boat. ilierel>y causing eolli?ion with the vessel in ir\'-, the steamer and her tow coming down the channel, nearly or exactly upon a line with the cour.se of the hailing vessel. ibllie would run into unavoidable or imminent danger; l)iit if there he no such dangei , the one on the starboard tack is entitled to the benefit of the rule. ibid. li'J. The circumstances of the ca.se examined, and no sufficient txeuM' being found for not following the rule, the vessel inflicting the injury condemned in damages an .1 costs, ibid. 5G2 DKiKST. ()3. The Court of Vice-Adiiiiriilty cxcrcisos Jiiri.sdiction in tlic case of a vessel injured l)y eoliision in the river St. Lawrence, m ar the eity of (^nehee. The Oiinillu», 1 St n art, 38;!. (Donht.s wliieh had arisen on thi.s iiead removed hy '1 Wm. 4, c. 51,.s. <).) ()4. The non-eoniplianee by a vessel with the Trinity House rtjrn. lations, a.s to the exhibition of lights, will not j)revent the owikiv i'roni reeoverinj^ (hinia;,'es for injuries received from anf)ther vessel by collision, if the officers of tlje latter ve.s.sel .«aw the former, imd knew her po.sition. ''Vte Mar ' n i'ojthin, 2 Stuart, 14. (>o. Wh( '•<• u coili.' h i; ^i'";f.s, -.iiliout blame l)einf^ imputable tn either party, loss • uisi h '. by the jiarty on whom it happeii« to alijrht. Tlie Mdrgurii jid, i'^ W). AVhere the evidence on both sides is conflicting and nicclv balanced, the Court will be truided by the ])r(jbal)ilitie.s of the re- ]iective cases which are set up. The Ailm, ihi2. 70. Between a l^ritish vessel and a foreign ship within Canadian wateis, the duly and the right of the parties are to be deteriuiiK li \>y the Act regulating the navigation of r«uch waters, ildd. 71. For a collision occa.-ioneil by the nji.-management of a pil"t taken on board uiid ])lace(! in charge of a ship, in conformity with the refjuiremeuts of the law (eniorced by a jjcnalty ), the vcs.-cl i^ not liable. 'J'hc Lotus, iltld, T^S. 72. When a vessel is lying at anchor, and another vessi'l is phu 1 1| voluntarily, by those in charge, in .-uch a position that dangei' will happen if .some I'vent arises, which is not improbable, thu.-i' in chartje of the stcond vessel must be answerable, ibid. S DKJKST. .5»53 {(\,IL iSli '»-) i.sdiction in tlic Lawrence, luur "(1 hy -2 Win. 4, lity House n'<:ii- •eiit the n\vinr> 11 another vessel the fbrn- iieci(h'nt, arising: )y the party dii wind free, the the way. iliiil. ng vessels t'niiii he owner di' tin not recover t'ni' , i(>ly inent of a pil"t ■onfonnitv with y ), the vesM'! i- vessel IS plinvil hat danurr \\ill hahle, tho.-c in Vul. ~'?t. Whenever two ve.ssels are .seen from each otlier, even in parallel eour.'', provided they are close to each other, or in any i'ourse so that there is reasonable proiiahility of a collision, it is tlieir duty, nn .^s tlu.e he some impediment, to obey the rule pre- scribed by tl Vet resfH'cti'ig the navigation of Canadian water.*. The Artibinn a.d The Alinu, 2 .S' .uirt, 72. 74. Where . steamer, coining down tin; St. La.vrenee, ujion a (lark night, n et** a -ailing vessel, and tliosi in charge of the steamer are in doubt what course the sailing ve.s.sel is upon, it is tlieir duty to euse h . ei ^Ii.e and slacken her speed until they ascertain the course; of the sailing vessel. Ihld. 75. The ride of the Admiralty Court, that in ca.se of mutual l)laine the damage was to be divided, is superseded by sec. 12 of the " Act respecting the navigation of Canadian waters," and tlie penalty on a j)arty neglecting the rules, enjoined by see. H, i,s to prevent the owner of one vessel recovering damages from the other also in fault, ibiil. This has since been changed by R. S. C. c. 7!>, s. 7. 70. A ^teame^ going up tlu' St. Lawrence at night, on a voyage from (Quebec to Montreal, saw the light of another steamer coming ilnwn the river, distant about two miles; uinl when at the distance 111' rather nore than half a mile, tot k a diagonal course across the river in order to gain the south channel, starboarding her helm, and then putting it hard-a-starboard. The steamer coming down, liaving ported her helm on seeing tlu; other, a collision ensued. Ilr/il: That the vessels were meeting each other within the luean- iiiL,' of tin; -Vet regulating the navigation of the waters of Canada, and that the steamer going up the river wa- solely to blame for the c'lllision ill not having ported her helm. Thr. Junicn McKrttzle, 77. A vessel having the wind free is bf)und to take pr.iper means I' ^'et out of the way of a vessel close hauled. The Courier, ihid, !)L 7^. The owners of a vessel having a branch pilot on board are ";ily exem|)t from lial)ili.v i'f.v damage wlu're the damage is caused I xchisivi'ly by the negligence or unskilfulness of the pilot. U/id. See The (i<>ru ■ a vessel leav- ler ship. The icli party is to whom it t'allri. L'ieiicy of look- mage, and not iiers were held f/, 198. Quebec, having e, and to drift )on the ground of a vessel iU but inevituhlf steering of u lehl entitled li> uiiiH, ibid, 14>'. her lu^lin and ded if she had 7. lid white lii-dii iiehor, slic \va- ( (^ll/isiiill.) 90. The fault of one ve.siel will not excuse any want of care, diligence, or skill in another, so as to exempt her fntiii sharing the less or damage. T/w iin-miunj; Thr Citi/ oft/idhir, 2 Stuart, l.")M. !M. When both ships were in (iiull the Admiralty law divided the damages of the owners ui' the siiips. Ibid. 1)2. Hut this rule was (pialilicd by the Act respecting the navi- gation of Canadian waters, which agrees with >n'c. 298 of the Mer- chant Shipping Act. Ibid. liut since changed by H. S. C. c. 79, s. 7 (41] Vict. c. 29, ». 8.) 93. In " The Merchant Shipping Act Amendment Act" (2.") & 2G Vict. e. (53, s. 29), this clause was repealed, and the old rule of stays, and becomes helpless, she ought, nevertheless, to execute any practical nianeeuvre in order to get out of the way of the starbounl- tacked vessel, ibid. DKJKST. m icctic l<'lej^rn|ili I HUi'h a iimiiiii r ition. Ifilil, ill 'liip cmiMiii^r llic tor the (latiiii;;r ; lias jiiristlictiuii. itly prncccdiii^'. •'II. The Czar. vay of a sail in;: slii|), liy portiii^^ to the coliisiiiii, I't'cover. Tli' \i been rcpcaltd, .' of their vtsstU ) go to the south lij,' to (h) so ciil- Is having very itcrially to thf ihility to iiiiiki- I not eontrihiitc ^lialhtw chaiiiK 1 the overtaking; to the wind on II tiie starltniini Vice-Adininihy niinent (hui^Mr. was not under eondeiiinod in C/iiir, Cook, 4''). e of the I'rivy vn herself ini" to execute any f the starboanl- ( i'lilHslnii.) lO.'i. A starlxiard-liu'ked vessel, when apprised «d' the htdplesM intidilioii of u vexsel, whirli, hy the ordinary rule of navigation, uiight toii the party pleading it, an. Where a banpie and a steamer were proceeding in opposite directions, and the latter, when between a quarter and half a mile (if the former, which was then keeping her coutm-, ported her hi-liii witlntut slackening her speed, which brought her across the cour>e of the banpie, the helm of which was shortly afterwards starboarded, and a collision occurred. Ilrfil, That the action of the stt'amer in [Hprtiiig her helm, having brought the banpie 'which otherwise dioiild have kept her course) into instant and most imniineiit dan- L'tr, >h(' was jusiiti»;(l in starlioarding ; and the steamer, wlio.se duty, when proceeding in a direction involving risk id' collision, wa.s to keep out of the way, aii;> ')t' :: rojr-liorii on an American sehitom i were snlistituted lor the rii;;;inir a hell, as re(|iiire(l hy the sailini: rej^'iijatinns, a plea ti'M) it v.iis iloiie in aeeordanee with a eirenliir IViiin the Secretary of tiie 'rnii.^nry ol' tlu' United States overruled, ij'.it the hreach of tlu rcL^dation- not having contributed to the accident the schooner was relieved I'roin liability, Tlir FrmiL. Cook, j)page of an ascending vessel at certain d'^cult parts of the channel, noticed and api)rove(l. ihi>l. lift. Where an American sailing vessel was dani..„ed by a coUi- .sio!) with !i British steamer in South American waters, and the latter rilea.sfd by a British gunboat frtim tlie juri.sdiction of u South .\mcriean tril)unal ami followed into Canadian waters, o '»iea of :i flefective gr< en light overruled, and suits of owners of sailing ves.«e! and cargo maintained. 77ie Kninorr; The Brilf Ihioper, Cook, liV.i. 119. Where an affitlavit was obtained, before suit brought, from u pilot derogatory to his connroaehiiig with a train of vessels behind her, did not sto|t or slacken s|)eed, and .-ii!i>('i|nentiy eoliided with the tng and her tow. Ilild, That the steamer was to hiami' tor not stopping before entering the channel, in i.ccart, and that the decree of tlie Vice-Admiralty Court should be aHirmed on all points, ihid. 12.i. A tng was seen, from a bar^pie at anchor, to cross her bow, and no su(lkill as to allow the tug to collide with another vessel, Ifci'd, That the tug was liable for the con.scfjuence.s I'f the collision, ihld. \26. A steamship, on a very dark night, overtook and sank a schooner. Hi/d, That the schooni'r was tint to blame "or iiot .-how- iiig a stern light, and that the steamship was in iault foi- not keeping nul of the way. T/ir Ci/beh; Cook, 190. 127, (^uiifi as to changi' of sailing regulations in the matter of a >Wy\\ lii-ht. Hid. ;)»;o 570 DKJEST. ( (_lll'ISIilll.\ I'iS. Tlie niaritirne law rccojrnizcft no tixcd rate of spcecl for ves- sels .sailinj.' through fog. The Atlldi, Cook, 196. 120. Where a vessel is in a foi^ she should l)e under sufficient eoniinand to avoid all reasonable ehance of collision, ibid. loO. Where a collision occurred in a fog between two sailing: vessels, one lying lo and the other ruuMiiig free, and the fog was so dense that their lighu*, respectively, could be seen but within from fifteen to twenty seconds heibre collision. Jhlcl, That the speed nt the vessel running free was too great. Ibid. ];il. The Court will not receive as evidence depositions of persons professing to be skilled in nautical aH'airs as to their opinion in any case. ibid. V,i2. Where, iVoni a steamship ascending the Traverse, below Quebec, a red and then a green light, indicating the approach of a sailing vessel, were secii and lost sight of, until too late to avuid a collision. JL/d, That tlie steamship was in fault for an insuffi- cient lookout and too mucli speed, and that she was liable for tlie subseijuent dannige sustained l)y tlie injured vessel, uidess upon the reference gross negligence or want of skill on her i)art w;i> establishe.l. Tin: itovino, Cook, 'iOo. lo;>. The Court will rigidly apply the rule reipiiring the injuring vessel to stay by and assist tlie injured vessel, if the occasion sliould so recjuire. ibid. 134. In the case of a steam vessel lying at anchor in fog upon an anchorage ground, while using her bell and showing two white lights, t)ne upon her foremast and tlie ttther at the gaff aft, each in an oblong lantern. Ibid, That a sailing vessel, which, misled I)y the whistle of another steamer in motion, struck her, was in fault lor going too fast; and that the lights of the steam vessel, though not in glol)ular lanterns, as directeil i)y the Act respecting the naviga- tion of Canadian waters, being e(|ual in power, were a substantial coni|)lian('e with i's provisions. The General Birch ; The l^roijren", Cook, 2U). II}"). Where two vessels sailing, (Mie on the starboard and the other on the port tack, came into collision, the latter held to be in fault for not keeping out of the way. The Princess Royal; Thr Rubens, Cook, 247. VMS. Where two steam-tugs were, from a distance, approaching each other nearly end on, one ligiit and the other with a train ot" liooUb -tarbo and .■» and tl the m Cook, V.Vi that 'oad DK^KST. .■)71 f speed for vcs- imder sufficient ibid. ?eii two sail in;: 1 tlie tog was so )Ut within froiM lat tiie speed nf tioDs of person> opinion in any 'ra verse, l)elu\v appntaeli of :i ) late to avoiil for an insufti- liahle for tlie ■1, unless upon I her part wii.- iij; tile iiijurin;: )eeasioii sliouM iii fo<; upon an ini,f two white iiif aft, eaeh in ieh, misled liy vas in fault tor liow a stern light, as prescribed in the sailing regulations. The European, Cook, 286. 139. Tlu! rule as to when a stern light is to be e.\hil)ited ex- plained, ibid. 140. Where a steamship, in a narrow channel in Lake St. Peter, \v!i> in the act of overtaking a steam-tug and tow so carele.sslv navi- L'aird as to create risk of collision, and one of the ves-^els in tow lollidcd with her. Held, That the steamship was in fault for not keeping out of the way ; the tow for not keeping her course. Tht: Lo)idt(ird ; The Fareivrl/, Cook, 289. 141. In cases of mutual fault, the ancient Admiralty rule, as to the division of the damages between the oHenders, now prevails in Canadian waters, sine<' the passing of the Act 43 Vict. c. 29, which restores the ohl law. ibid. 142. .\nd in such cases each party nuist pay his own costs, ibid. 141). Where a sailing ve.«sel and a steam.-hip were meeting marly t ml on, and the former ported, while the latter starboarded. Jie/d, I hat the former was in fault for not keeping her couise, and the latter for not stopping or slackening lier speed. The Bothal; The Xrlson, Cook, 296. hiZ DKJKST (To/A iSlllll , 144. A siiiliii<; vessel deviated fntiii lier course, eontrarv to the sailiiij; rules, and came into eolli.-ion with si steamer wliieli niiirht have otherwise avoided lier, each liehl to he in fault, and the dam- ages (livi(h'd. Till' Monicit, Cook, .■!14. 14"). Wiiere ji steanu'r is eliarged witli havinir omitted to dd sonietliiii;f which ought to have l)eeii chine, proof' of three things i« ref|uired : hist, that it was clearly in tlie power of the steamer to li!iv( done the thing charged to have been omitted; secondiv, liiat if done, it would in all probability have prevented tin; collision; and thirdly, that it was such an act as would have occurred to any officer of competent skill and experience in command of the .«toamer. ibid. 146. Where two ships in the harbor of (^U(4)ec, from the violence of the wind and force of the tide, were accidentally brought into such proximity that each had a foul berth, both held to be in fault for not adopting the pro])er course to relieve themselves from their ])erilous positions, and thereby avoid a collision. The Avmn, Cook, :};■);}. 147. A ves.H'l under charter was injured by a collisictn, caused by another vessel, that charter-party providing that, in case of flamage, the hiring should cea.se until she could bo repaired. IIilil, That an action by the charterers against the offending ship for llie fletenliun would lie. The NdtUsworih, Cook, 'MV,\. 148. Two vessels crossing, one on the starboard and the other on the port ta( k. HM, That the latter did not keep a proper look- out, and that the former did not keep her course, but ported lur helm too late to avoid a collision, and that there wa.s mutual fault. 7'he Hiynf; Thr Rose C, Cook, 36G. 149. While two vessels, the Wmrlet and the Dundee, were at- tempting to |)as.s OIK! another in Halifax harbor, they came into collision under circumstances for which the former alone was ;iceountalde, ami she wa^, therefore, held liable in damages. Tlf: Wncelet, Young, 34. l/)0. The fact that the Wavelet at the time of the collision was in <'harge of a pilot held no ground for exemption from liability, ]>ilotage not being compulsory under the Provincial statute, ihid. 1">1. In the last named case the collision took place in Halifax lux;l.'-i. a. id t'l refore within the bod v of the county of Halifax. W-i DKiKST Ot' ( Co//; •Kill.) coiitrarv to tlio T wliicli iiii;:lit :, and the iliini- oiiiittod to (lu throe thiiijrs i> the >*teaincr to secoiully, that '. the rollisioii ; 'f occur red u, iniiiand of the 111 the violence Y broujrht into i to he in fault Ives from their The Anvil, llision, caused at, in case of paired. Ifr/il, g ship for the 1 the other on . proper look- ut ported her tmitual iault. ulee, were al- ley came into LT alone was images. TIf llision was in rom liability, tatute. ihlil. ce in Halit'ax t' of Halitiix. The defetidiml put in an absolute appearance without protest or declinatory plea, hut the (|uestion as t(t the jurisdiction of the Court was raised by him at the iiearing. Jfr/d, That under the statutes 24 Vict. c. lu, and 2(i Vict. c. 24, the Court had full jurisdiction in the matter. Thf Wureh ', Vuung, .'{4. 1")2. The U'i're Hvir came to an anchor in Halifax harbor on the night of November oth, using only one anchor. (.)ii tiie (Ith the licii A'rjJM ancliored beside her, and, as it was alleged, in too ciose pro.xitiiity. On the morning of the 7th iioth vessels were apparently securely moort;d, and th" master of the former went on shore, leaving six men on lioard. In the course of the morning a gale sprung up, and the W'l'n; Hm', not being acie(piately moored, collided with the lien Nt'vl.i. The men on board the former vessel did not act as experienced seamen should have done under the eircumstances. ami her master made no attempt to get on board, while no negligence or want of skill or seamanship was proved against the Jteii Neoi.-i. Held, That judgment shouhl be entered for the Ben AVi-w for damages and costs. Strictures made on evidence received in the Admiralty Courts. Tlie We re J fere, Young, l.'i8. 15.'). The French barque Clementine, on her way to Halifax, collided with and sank an American fishing schooner on St. (leorge's Hank. The collision occurred soon after sunrise, and there was ciiidlicting evidence as to the stale of the weather, the plaiiitit!s alleging that it was clear; the defendants that there wi-re fog and mist. A sufficient lookout had been maintained on board tlu; l)ar(iue until within a few minutes before the collision, when the man on the lookout was called down to assist in working the vessel, and before he had returned to his post the schooner was struck. Ifild, That the barcpie was in fault ; that a sufficient lookout .-liould have been maintained throughout, and that she was there- fore liable in damages and costs. Thr Clementine, Young, 18(). 154. The question of jurisdiction having '' n rai.sed in the last case, on the ground that both vessels w<'re t'oreign, Ildd, The Court had full jurisdiction. Ibid. ]■'>'). T.e steamer J/. A. Starr, while proceeding down Halifax harbor, collideil with the schooner Edirlt Wiir. The schooner was lying at a wharf in such a position that her bows|)rit ani(iii, had hnikcii jrround, and thi-i narrowed the channel down which tin stfanier had to pass. Hf/d, Tlial jih the I'Jdilk W'irr'n position war- conlrarv to the harbor re<,Mi hit ions, she shouhl l)e lial)h' tor all (hinia^e to the steamer with costs ot" suit. Tiie rule as to inevitable accident stated. The Edith W'ur. Young, '1\M. 15(5. The .schooner //f/v), drifting down Halifax harbor with tin tide, bound for a port along ; he coast, all sails set, and regulation llght.s duly burning, was run into by the steamer Alhambm, which had just entered the harbor. The night was fine and clear, and llu harbor |»erfectly calm. 'I'hc steamer was going at a gctod speed, and had altered her course a few ndnntcs before the collision to avoid u .scdiooner becalmed near by the If ra. The lookout on board llu- .steamer did not perceive the IIeri> till too late. Ih/il, That althoiigli it was one of those eases in which the two colliding ve.ssels occupied such relative positions that the lights ui' the .-chooner couhl not he >ecn by the steamer, yet the speed ot' the steamer being too great. and her look-out defective, in that the schooner was not iioti'i'd in time, the steamer was held liable in damages. The Alhuiidirn, Young, 'J4!). l.)7. Two vessels, the K/hu an prn ceeded against by the ownci's of the Elha. The evidence was verv viduminous ;ind conlradictiu'y. but the pre|)oiiderance went to shew the KIbit was blamele-s. II>/d, The (i'liiiu liable for teamer S., sailing up the river St. .John, inei the sleani-tug N. condng down, near .\kerlev's Point, where ilii river is al)out half a ndle wide. I lie S. was near the western slion . which was on hci' port side going up; the N. about one liundrnl and fifty yards tVom the >anie >ideof the river. The S., bv keepiii'. iiiiild j)n)l»iililv lad liccii lyiii- o the colli^iiiii own wliicli till ''n pn.silioii \v;i» lial)l(! for all c Edith Will arlxir with tin iiid rt'ijriilaiidii hiimhrti, wliich clear, ami tin Odd speed, ami isioii to aviiici t nil i)oar(i tiic riiat altlnmirii sscls occiipicil eitiild not \)v III},' too jrrcal. not iioti'pd ill V/e Al/ntiiilii'i, \'^ llie iiailmr {•I'luiii:-, alii.iii uiiij:; hri^ditly. i>ly daiiiajreil, owned. ilh Diiliniiin^ In i slie was pin I'liee was V(i\ went to sliiiu daiiiaj^es ainl St. .lojin, 111' I It, where the vesterii shiiii . one liniidriii ■'.. Iiv Iviipii). DKJKST. ( (jtlllsilill,) her courfie wlirn she first sijjhted the N., rnijrht have avoi(K'd the collision, Init instead ported her lieltn, which gave her a diajioiial course to starhcanl towards the east side, and as a resnit struck the N. on tlie starlxiard (piarter. and -ank her. lIi hi. That the S. wa» ti> hianie, and lialde lor the damages sustained ; also held that when two vosels are meeting end on, or nearly so. the y\\\v to port helm may In- departed from, where then; are reasoiiahh' grounds lor lirlieving su<'h course is necessary for safety, and constMjiieiitly the N. was not to lilaiiie, immediately hefore the colli.>ioii, for putting lier helm to starhojird. Tlic Sitit/muftM ; The Xe/itxnf, Stockton, 1. !.")!». Two vessels, the K. and the (J., wcri! ;ailing up the river troiii St. .lohn to Kreiile. When the (i. was nearly abreast tlu' R. she suddenly rounded to, and .-truck the R. nii the port side forward of the main chains, when the R. immediatt'ly sank. Ifi/tl, That it was not a case of inevitable accident ; that the R. being oil the starboard tack, had the right of way; that the (J. was to i'lume for the collision, and was liable for damages. I'he (iracr, St... ':;on, 10. IbO. A railway pass»'iiger car, standing up«*i.i a track on a wharl "II the western side of the harbor of St. .lohn, and within tlu- limits "I the city ot' St. .loliii, was injured by a iiawser attach. d and be- MiiiLMiig- to a >ti'aiii.'«liip 111(11. red tn the wharf. Ilflil, That -iiice the |ia>>iiig of the statute '1*'' ifi. '11 \'ict. c. '24, s. 10, the Vice-Adiiiiialty < ourt has juri.'iorkton, 4o. See also jiidgmenl of I'almec, .J., in this case on application for |iroliibitinn. //>/tarboard tack, the A. on her port 'ack, running free. It was not shown thai the lights of the |{. were -i< placed as to be I'airly visilile to the A. Moth vessels kept their lour.ses, and the enllision took place. /A/il, notwithstanding the lights of the li. were not liiirlv vi.>ible to the A., it was the duty of Old 57<> ■ri J)I(JKST. ( r I ill isiii/i . ^ tlic Intti'i' In keep clear and L'ivc way, ami not doing ^a^, Aw wn- liuMi' lor the danniycs. Thr Ark/mr, Stockton, <).'{. The tug (i. was proceec'.iug up the river St. .John, and tin tug \'. coining down ; when lu-ar Swift I'oint they came into cnlli sloii, and tlie \'. sank. The («., at the time oi the accident, wn-. contrary to the rules of navigation, near the westerly shore on tin- j)ort side of the vessel ; the V. did not e.xhihit any masthead white light, as HMjuired hy tlu- regulations, //r/il, That IxUi vessels wen to l)lami>; that the collision wu.s occasioned partly l)y the omi.-.-imi of tli(! \'. to exhihit her masthead white light, hut principally Iry the course of the G., and a moiety of the damages was given to tin V. with costs. Thr (itiicnil, Stockton, 80. See )S(ilrii(jr, .')4. 1()4. The ves.si'l M. (J., under command oi' a pilot, was entering the Mirami'-'ii, and near the Horse Shoe liar, in the lower part of liay du Vin anie into collision with a lightship there placed for the safety of lUivigation. JMd, That under the evidence no tiuili was attriltutable to the M. (J.; that it was a ease of iiievilahle acci- dent, and the suit was dismissed, hut without costs, as the ('rowii was the proinovent, and no co>ts can he given against the Crown. Tlir Miitnir Gordon, Stockton, iJo. KJ."). The M., closi'-haulcd on the port tack, heading about soutli- wc-i hy west, and going ahoul three knots an hour, with the wiinl south, came into lollision vvith the M. 1*., heading east, and running' free alx'Ut ten knots an hour, and was totally lost. J/dd, from tin' evidenci', that the M. 1*. had no proper lookout; that failure '• have a proper lookout coiitrii)uled to the collision, and Aw wii^ accordingly condemiu'd in damages and costs. Tlir M(iuiiiii prineijially liv IS given to tin- , was eutenii^'^ lower part of •re plac'd i'or leiiee no I'aull iievitahle acc'i US the (!rowii 1st the ( 'rowii. 1,^ ahoiit soiitli- wirh the wind , and niniiiiiir 'fihl, from tlir hat failure '<> , and sill' wa- tt; Ml I lid I'H' , DKJKST. (Colli"'" III.) KK!. The v., stone laden, on ii voyage from Dorchester to New ^'ork, olf TyiieiMoiith Creek, in the May of Fiindy, closedniiiled on ilif starhoard tack, came into collision with the 10. K. S,, running tree, in hallast, going np the IJay to Monclon. Thi> night was dark iinil f«»ggy, and from the eviden(;e it appears that the V. had no iiiechuiMcal fogdiorn, as required hy the regulations, and that the one she had was not heard on hoard the 10. K. S., which was to windward. //'■/'/, That it was a case of inevitahle accident; that liie K. K.S. was not to blame, and the action was dismissed without (■(»sts to either party. It is a rule of the Admiralty that where there is a material vari- ance between the allegations of the libel and the evidence, the party -o alleging is not entitled to recover, although not in tiiult, and liiult is established against the other vessel. The Eumvi K. Smallrij, Stockton, 10(1. I(i7. A tug boat was engaged by the charterers of a vcs.s(d, the 10., to tow her from the harbor of St. John, N. H., through the Falls at the mouth of the river, beneath a suspension bridge which spans the Falls at the point where the river flows into the harbor. The ves.s(d towed was llision ; but tliat the ('(dlisinii wn« occaHioncd by th<' want of a projicr lookout on board the P., and hIicj was tlicrcfort' condciiincd in damans and costs. '/Vc Piimmnttii. Stockton, 1!»2. l, the duty of the other steamer to remain completely outsid( until the first had passero.ximate whereabouts by an interchange of blast signalv Notwithstanding such proximity, and the fact that the courses tluy were steering were such as would have brought them across each other's bows, one of tfiein maintained a speed of from three to four miles an hour, and was running with a tide, at flood force, of one and a haif knots per hour; the other wa steaming at a speed nf about three knots an hour, and no eflort was made to alter In i course. A collision occurred. Held, That both vessels had in- fringed the provisions of Arts. 13 and 18 of the Imperial Regula- tions for preventing collisions at sea, and were, therefore, mutually to blame for the - ullision. (2) The wurd "iiioflerate" in Art. l.'J is a relative term, and ii- constructioii must depend upon the circumstances of the particular case. The object of thi- article is not merely that vessels slionlcl go at a sj)eed which will lessen the violence of a collision, but alsn that they should go at a speed which will give as much time :i> possible for avoiding a collision when another ship suddenly cuiiir- into view at a slmrl distance, it is a general principle thatsjMcd such that another vessel cannot be avoided after she is seen, i> unlawful. (77(f /(((/o/.-, !» P. I). 114, referred to.) hKiKST .79 {('oil ISIIlll, ) ii'uvro to JiVDiil horn on IxianI lilt tlif collisiuii Imiinl tlic l^. (I costs. Tin niu^lit. till! one LMiiillcd to i'ii;li luitinci, wliicli. stt'unicr l)fiiiu IM „f 1{. S. ( . iplcti'ly outsiili et ensily avoid- cs wliicli placf l.arntssnicnt or (lainagcs from R. 2H. near a i.nlilic iitually loarncil f blast si<,'naN. le courst's tluy ni across cacli in tlirco t(t tour 1 force, of onf at a speed lit' f to alter lit 1 essds had in- )orial lieuiila- fore, nmt'nally term, and it' the particular vessels .-lion 1(1 iision, hut al-n nincli time as uddenly cunir,- iple that speed she is seen, i^ (!}) The owner (»f a ship wrongfully injured in a colli^iion \* entitled to havo lier fully and completely repaired, and if a .'•hip is totally lost the (twner is (-ntitled to lecover her nuirket value at the time of the colli.-iun. (4) Where holh ships are at fault, the law apportions the losi* l>y ul>li;.dnf; each wr(»ngdoer to pay oneduilf the loss of the otiu-r. The provisions of sec. 12 of I{. S. ('. c. 7!', lindtiii); the liability .H.!f_' fur each ton uf j^ross tonnap', was applied to this case.) Tin llrntlur Ilil/t-; The r„..l„rl,:'> K. C. K. 40. 171. Under the jtrovisions of .section 10 of the Navi<;ation Act . K. S. (', e. 7!>), where a collision occurs, the ship neglecting; to iis-oist is to be deemed to blame for the collision in the ab.-sen''- of a reasonable excuse. Two steamships, the ( '. and the .)., were leaving port toi,-othei in liroail daylight, and a collision ie put forward by the nuister of the ('. was that tlie .1. did not whistle for assistance, although the (evidence showed that he must have been aware of the serious character of the ' im- age sustained by her. He further atteriipted to justify his failure lo a.«sist by the fact that other ships were not tar off; but it was -liown that tiles*' >hips were at anchor and idle. Ibid, That the eireumstances disclo.sed no reas«nmbh' excuse for failure to a.ssist on tlie part nf the (.'., and that the con.set|uences <,[' the coIli.-iMn were due to her fault. //'•/(/, also, That the ( '. wa.- in fault under Art. It) of .«ec. 2 of the Navigation Act, for not ki'cping out of the way of llie ,1., the latter being on the starboard siile of the ('. while they Were cro.xsing. Thf Ciitrli. •> IC. ('. K ;>(i2. 172. The st»'ani>hip S. was proceeding up the harbor of "Sydney, <'. H., at a rate of speed of about eight or idne miles an hour. When tillering a chaniit 1 of the harbor, which wa> about a mile in width, lier steam sieering gear became disabled, iiid shi' collided with the .1.. a .siiliiig ve.s-el lying at anchor in the roadstead, damaging the hitter seriously. It was shown that the master of the S, had not ill ted as promptly as he might have done in taking steps to avoid tlie ciilli.-iion when it apjieared likely to happeii. //'/(/, That even it the breaking of the steering gear — the proximate cause of the eillision — was an inevitable accident, the rate of speetl at which .^> $^.

    m mm Wm mm 680 DIGEST. {CuUisioii.) the S. was being ;^ropelle(l while jm.s.siiig a vessel ut anchor in a roadstead such as this was excessive, and that, in view of this and tlie further fact that the master of the H. was not prompt in takiii^'^ measures to avert a collision when he became aware of the accident to his steering gear, the S. was in fault and liable under Article ]'< of sec. 2 of R. S. C, c. 79. Held, also, That the provisions of Art. 21 of .sec. 2 of R. S. C, c. 79, should be applied to roadsteads of this character, and that, inasnnich as the S. did not keep to that side of the fair-way in mid-channel which lay on her starboard side, she was at fault under this Article, and responsible for the collision which occurred. The Sdutandarlno, 8 E. C. R. 1578. 173. During the early hours of the morning of August 12th, 1891, a collision occurred between the plaintiffs' ves.sel lying moored to n dock in Windsor, Ont., and a barge in tow of a tug. The defen would contribute to the accident, and that as it was about dayliglu at the time of its occurrence, and the j)laintiffs' vessel was adniil- t. lly seen by the tug when more than one hundred feet distant, the t(nv being at that time three hundr'^d feet behind the tug; iuul further, since the evidence showed that the ))laintiffs' vessel was })ro})erly and securely moored to the dock, the absence of light did not constitute such negligence on the part of the plaintiffs as con- tributed to the accident. They were, therefore, entitled to recover for the damage arising from the negligent navigation of the tut; and her tow, to the amount of the actual cost of the repairs ami also the cost of towage to the ship-yard. (2) A survey of the damage done to their vessel was made at tlif lilaintiff's' instance. Notice of intention to have a survev made was 1' as l,r r alio cul Inr ('"111 Chn at anchor in a view of this aiKi •ronipt in taking: e of the accident inder Article Is rovisions of Art. to roadsteads (it" not keep to tluit r starboard sidr, for the collisiuu igust 12th, 1891, ing moored to ;i g. The defend- .dainicd that the ht on hoard and jglect she swun^u' sing at a reasun- 1 was occasioned HeUl That tiie moving and the occurred, they ant, witli a right ' it were nece,>- is necessary for the plaintifis as about (hiylighi ssel was adniit- eet distant, the the tug ; iuid titts' vessel was nee of light did )laintitis as ecm- itled to recover tion of the tiii: the repairs aiid vas made at the irvev nnide was DUJKST. ( I nil ISII III . ) umIy given to one of the defendants, and that by mailing a letter to lil> address on the day before the survey was made. Notice of the !( -ult of tiie survey was given to the defen(hints. Hrlil. That the .(ivt of the survey was noi chargeable to tlie defendants, because 1' nsonable notice was not given to enable them to be present or to lir represented thereat, lli'ld, also. That demurrage i-hould not be allowed, inasmuch as the vessel was lying idle at the tinu' of the 7»). 0. Jomndssion under the Great Seal of the United Kingdom of <;reat Britain and Ireland, for the trial of offences committed with- in the Admiralty jurisdiction, dated October 30, 1841. 1 Stuart, .•;no. Eor a history of the Commission from the Lord High Admiral to the Vice-Admiral, .see The Little Joe, Stewart, 394. of unlivery — the Court appoints the place. La Merced, Stewart, 219. COA[PULS01lY PILOTAGE. 1. For a collision occasioned by the mismanagement of a jiilot, taken on board and placed in charge of a ship in contbrnuty with tlie requirements of the law, enforced by a i)enalty, the vessel is not liable. The Lotus, 2 Stuart, 58. 2. The owners of a vessel having a branch pilot on board are - ok, 7. lian waters by No. 8. Tl'ir 11. The fact that the vessel to blame, in a case of colliriioii occur- ring within Halifax harbor, was at the time of the accident in charge of a pilot, Held, no ground of exemption from liability, pilotage not being compulsory under the statutes of Nova Scotia. The Wavelet, Young, 34. See Conflidlng Decisions, 2. C( )N FLR 'TING DECISIONS. 1- CoiiHicting decisions of Dr. Lushington in the ca.se of The Citij of London, and of Sprague, J., in the case of The (hpnvj. The I)ig n (liscliar<:o of tlio seaman. Thr Scotia, 1 Stuart, IfiG. See >S~. 2. Li a suit for seaman's wages the protest of a foreign consul to tlie jurisdiction ovcvruliMl. Tlic Mouttrk, Cook, 34L Hoe Fore if/ n le.sw/.x; llaj/ra, .'J."). CONSTRUCTION. See Miirincrs' Coniriict. CONTRACT. ^ee Salvage; M(iriiicvt<' Contract. COSTS. 1. The Court may exercise a legal discretion as to costs. Costs refused in this case. The Ayues, 1 Stuart, o7. 2. If a suit be brought by a .seaman for wages, a settlement with- out the concurrence of the promoter's proctor does not bar the claim for costs ; the Court will inquire whether the arrangement was or was not honorable and just, and relieve the proctor if it were not so. The Thetis, ibid, 80;}. " 8. The practice is not to give costs to either party where a collision has occurred from inevitable accident. The Margaret. 2 Stuart, 19. See The Anne Johanne, ibid, 43; The McLeod, ibid, 140; The Harold Harj'aager, ibid, 208. DKiKST "/ Mure (loclaiv IT, ojjcratc a- a ■ COIl.SU] of till representation )ronioters to l)c (1 not 1)0 ontor- Ity over caii.*(> i Court would. 3 action. Thi reign consul to ;o costs. Cost> ettlement \vitli- t bar the chiiiii igement was or r it were not so. party wliere a The Mnrgaret, bid, 140; Th (Costs.) 4. Nor, where the (lainatres have hcon luuiul to proceed from the iiuilt of the pilot alone. Tlif Jjotu,*, 2 Stuart, ")JS. See The Thamen, ibid, 2'2'2. "). Costs are not usuiilly decreed in Courts of Adniiialtv against .-lanien who are unsiu'cessfnl in their suits. A decree for costs wiiuld, in most cases, subject the seatiian to iniprisoninent, without 1)1 ing |)roductive of any real advantage to the other ])artv. The WiffiliiiKjIoii Jrvlii(f, ibid, !)7. f). A party who does not accept a tender inad(! in current hank ndtes, or a che(pit> on a hank, drawn by a merchant of established credit, exposes himself to the j)ayment of costs to the adverse |)arty. The British Lion, ibid, 1 14. See Tender. 7. Where evidence was nearly balanced and suit dismis.-ed, i.o costs were allowed. The Ai/sa, ibid, 38. 8. In collision suits, either where tnere are cro..v/.v.) 10. Captors are not liabk' for costs and daniajres for firinj^ at i vessel which had shown a hostile appearance of resistance. Tin Friends Adreidurr, Stewart, !I7. See Inevdiible Accideid, 4. COURTS. For the jurisdiction of Courts of Admiralty, .see AdmhuiJiij Juris- diction, Cimtoins, Cross Qtiines, Droda of Adinirult;/, Jurisdictioiu Vice-AdmirnHij Court, Revenue. CRIMES AND MISDEMEANORS. 12 & V^ Vict. c. !>6, makes provision for the prosecution and trial in Her Majesty's colonies of ofleiices conmdtted within tlu- jurisdiction of the Admiralty. See also 1« A 19 Vict. c. JM, s. 21. See Coinniisnions, '4 ; Offences, CROSS CAUSES. If a cau.se of damage hy (ollision be instituted in any Vice- Admiralty Court, and the defendant institutes a cross cause in respect of the same collision, the Judge may, on application of either party, direct both causes to be heard at the same time and on the same evidence; and if the ship of the defendant in one of the causes has been arrested, or security given by him to answer judgment, but the ship of the defendant in the other cause cannot be arrested, and security has not been given to answer judgment therein, the Court may, if it thinks fit, suspend the proceedings in the former cause until .security has been given to answer judgment in the latter cause. 2(5 Vict. c. 24, s. 21 ; 2 Stuart, p. 257. See aide, p. 41i), rule 27, as to Counter Claims. CUSTOM. 1. A custom involving the stoppage of an ascending vessel at certain difficult parts of the channel noticed and approved. The Elphinstone, Cook, 132. 2. A steamer held to blame for not stopping before entering lui intricate channel to allow a descending vessel to pass, in accordance with an alleged and established custom to that effect. The Earl of Lonxdide, ibid, loJj. CUSTOMS. See Reoenue Otnes. 1)I(;kst iH7 es for firiiifi; iit ; rt'.«i.«taiifC'. Tilt: III* Admirdlfij Jiirii- 7y, Juri.iiliclloa, S. iroscoiitioii and ttt'd within the J ill any Viro- cross cause in application of same time and ndant in one of him to answer ■r cause cannot iswer judgment proceedings in iswer judgment p. 257. nding vessel at ipproved. f/f jre entering an i, in accordance t. The Earl of DAMA(}K — DIVISION OF. 1. Where both parties are mutually hlamahlc in not taking asuros to prevent accidents, the rule is to apportion ecjually the (ianuiges between the parties according to the maiitime law as ad- ministered in the Admiralty C'ourt. The Sarah AnnA Stuart, 300. 2. Where, in cases of collision, both parties are mutually Idam- ultle. Courts of Admiralty, adhering to the ancient maritime law, wnuld have apportioned the damages eijually between the respec- tive owners of the vessels ; but by the Act of Canada, !U Vict. c. o8, (iwners of vessels contravening the rules prescribed in such statute ;ue j)r('cluded from recovering any pouion of their danniges. The Rom; 'The, Jiatic/er, Cook, 104. The Eliza Keith; The Lanyxhaw, ibid, li:{. " See 43 Vict. c. 25) (II. S. C. c. 70, s. 7), restoring the Admiralty rule. 3. The foregoing rule does not apply to owners of cargo laden on hoard one of the delinquent vessels. *7>/(/, ] Hi. 4. And now, by the Canadian statute 43 Vict. c. 29 (R. S. C. e. 70, s. 7), the Admiralty rule of the ecpial division of damages, in the event of common fault, is followed. The Ijombanl ; The Fore- well, Cook, 280. See also The Nelson, ibid, 2d(i; The Moniea, ibid, Zi\\ also note, Cook, p. 204. 0. By the modern practice of the Admiralty, where, in the case of collision, both ships are to blame, but no cross action is brought, the defendant is condemned in a moiety of the plaintiff's damages. The Arran, Cook, 3')(). See Collision, 30, 57, 65, 75, 83, 01, 07, 101, 100, 114, 141, 144, 148, 1G3, 173. See note to The General, Stockton, j). 91, where the cases are collected ; The Maud Pi/e, ibid, p. 104. DAMAGES — xMEASURE OF. 1. A vessel collided with two lighters endeavoring to raise a sunken steam-tug, broke the chains which connected them with the wreck, sent them adrift, and was condemned in the damages resulting from such collision. On the reference, the registrar and merchants allowed the promoters all expenses incurred in endea- viiring to raise the sunken tug for the four weeks preceding the '.SH i>i(;i': (/> 'il IH'li/l — M I IISIIl'l' ' and merchants reported an ei|uivalent amount in gold, not at current rate of exchange, hut at the rate as on the day of the collision. The Court, upon contesta- tion, maintained the report. The Frank, Cook, lOo, 7. I'pon objection to a report of the registrar and merchants, to whom had been referred the amount of the damages sustained Ity a foreign shipowner, through the arrest, detention and search of lii> vessel, without reasonable cause, under the Foreign Enlistnieiit Act, ISTO; the report was confirmed, and held correct, in restrict- ing the damages so occasioned to their natural and proximate consequences, and in disallowing remote and consequential loss. The AUdaijn, Ibid, 2(i0. 8. Upon the licjuidation of an account by the registrar and mer- chants in a case of collision for damages to a wharf. Held, That a 0 of the Civil Code or by the Maritiim J. aw. The Barcelona, Cook, 299. di(;kst i8l> (/) 'tlliHUIl s :—M idsili'i III. ■xpcmlril. :i> licld tlia; to cstiilili-li iiditiii'i' \va- I cinind Ml of cviilciicc 'sst'l after :i )V rotiMiii 111' k('(l fnr till ' ])liU'(' until hl'illg C'ln.-Cil r as j)art ut ' winter, ami where tluy tliero. ihiil. ' loss in tin- roportc'il an langc, l)ut ai Mm ('onto>ta- nercliants, tn istainoil liy a search of hi> 1 Enlistment t, in restrict- rl proxinuitf |ucntiiil lo.->. rar and uior- Held, That a he libel, mir •egistrar and ot be allowed he Maritinii !l. Hilt ftntlier held that the Vice Adm' 'ilty Courts Act. 18(1:1, conferring jurisdiction on Viee-Adnuralty ("onrts, where damage was done liy any ship, does not extend to conseiinential damages (jreasioned to the trnftie of a lessee. il)l»l, p. 'Ml, 10. On a bottomry bon, for damage done by any ship (2(5 Vict. c. 24, s. 10), as in case of damage to a wharf in Halifax harbor. T/ie Chnxe, 2 Stuart, 3G1 ; s. c. Young, 1 V.\. 2. A railway passenger car, standing upon a track on a wharf on the western sidi' of the harbor of St. John, and within the limiUs nf the city of St. .John, was injured by a hawser attached and belong- ing to a steamship moored to the wharf. Held, That since the passing of the statute 26 tfe 27 Vict. c. 24, s. 10, the Vice-Admiralty Court has jurisdiction to entertain a claim for damage to property iluiu! by any ship, although the property injured is within the limits (if a county, and situate upon the land. The Teddinylon, Stock- ton, 45, 8. Where a part of the line of an electro-magnetic telegraph passed under the river St. Lawrcrce, being laid in such a manner on the bed as not injuriously to interrupt the navigation. Helil, il) In a cause of gross negligence on the j)art of a sailing shi[), causing a wire cable to be broken, that her owners were liable for the damage ; (2) Under existing statutory law, the Admiralty has jurisdiction, in case of damage done by any ship, and that conse- i|uently proceedings In rem against the oft'ending vessel were rightly taken. The Czar, Cook, 9. 4. A tug-boat was engaged by the charterers of a vessel, the E., t'l tow her from the harbor of St. John, N. H., through the Falls at the mouth of the river, beneath a suspension bridge which spans the Falls at the point where the river flows into the harbor. The vessel AIM) DKiKST. ( /)ilill'li/is li, I'lnjUi-lil.) tciwed was f'lmrlcrcil to curry ii ciir^fn u'l ice t'roru tlic loudiiij^ |)l:i(. alxtvc the Fulls ti) New ^'()rk, and the cliurtt'iTrs were tit «iii|>lii\ tli(! tii;; uiid i»uy tor the towu^je services. The tug, luiving wuilcd tn take uiiotlicr vessel in tow, tt»;,'etlier with the K., wus too lute in the tide, uiul in goin;^' nnder the hridge the topmast of the \\. ri\\\w into collision with the hridj^e and was damaged. Urhl, That the Court iiad jurisdiction to «ntertniii the suit; that the deluy of the tug in going through the Fulls wu.s evidencf! of neglieiicc ; and the tug and owners were condemned in duniuge und ((.-Iv The Mtiijyir M., Stockton, 1><.'). See Jurisdiction, 44, 4o. "). In a case of collision uguinst a ship for running foul of a floai- iiig light-vessel, the ('ourt pronounced for duniuges. In such cu«i' the presumption is gross negligence, or wunt of skill, und the hui- then is cust on the shipmaster und owner.s to repel that presum])tioii. T/if MiramivJu, 1 .Stuurt, '2o7. See Thr Minnie Gordon, Stockton, 95. Sec also notes to The Teddim/ton, ibid, ut p. ')2. ti. A claim for danuiges, upon loss of vessel by shipwreck after (■apture, rejected, there being no misconduct on part of the cuptors. T/ic Jioscio, Stewart, aotJ. 7. The ^faritime Court of Ontario refused to exercise jurisdiction in u ca'"se of danujge to a tow, arising from the negligence of the towing vessel, where no actual collision had occurred between ves- .sels. The .Sir S. L. TiUnj, ,S Can. L. T. 15(5. This is not now the law. See Jurisdiction, 44. Also see ante, p. 102. 8. The Court entertained jurisdiction in a case where a propeller broke a canal lock gate, in consetiuence of which land adjoining wus flooded und injured. The Walter »S'. Frost, ') Can. L. T. 471. See Jurisdiction. See Aduiiraltij Jurisdiction, DAMAaF:s (pp:rs()NaL). 1. Damages awarded to a steward for a.ssuults committed upon him by the master without cause. The Surah, 1 Stuart, 89. 2. Unnecessary wanton and unlawful punishment cannot be in- flicted under color of discipline, ibid. :;. The The Frifi 4. A SI master, fi The Toro .-). A s. .lismissed 6. A tor assau ^'round 7. A N. H., loi ijuantity to lie deli chant en jteam po The plai board, ui hoisting ;iifainst t that the not confi Stockton See nf disc nnis 1. In mar the averred liie bod; Court ot costs ; ai |,y a cahiu pnssciijjer apiiiist th«' iiwiHter, tor attfiiiptiii^' to cxcIihIc him IVoin tii<' laliin, sustained. Thr Toronto, Ibid, 170. ■'(. A suit for personal (laina^cs, hy a seaman n;,'aiiist the master, dismisspd. The Coldxtrenm, ihiil, l{8. ante, p. 41o. f). As to when desertion of vessel does not constitute her a dere- lict. The Marfjaret, Young, 171. 8ee Salvage. DESERTION. By the General Maritime Law, as well as by the Merchant Ship- ping Act, desertion from the ship in the course of the voyage is held to be a forfeiture of the antecedent wages earned by the party. The Wat^hliH/toii Irviny, 2 Stuart, 97. See Eindence, 8. DESTINATION. Of vessel — Proof of. The Nuestra Senora del Cannen, Stewart, 83. DESUETUDE. The mode of abrogating or repealing statute law by desuetude, or non-user, is unknown in English law. The Mary Campbell, 1 Stuart, 223. DETENTION. Of seamen. See Merchant Shipping Act, 1873, s. 9. See Wages, 7 ; Damage^ — Measure of, 4, 7, 9, 11. DEVIATION. To save life and property. The Srotwood, Young, p. 32. To save ])roperty. The Hernmn Ladicig, ibid, p. 214. See Mariners' Contract. See S(dvage. DISCRETION. As to what is understood by the term "discretion" which Courts are said to exercise. The Agnes, 1 Stuart, p. 57. DISMISSAL OF MASTER. 1. The ship Jean Anderson, owned at Ciiarlottetown, P. E. I., was sold by the agent of the owners at Liverpool, England, to the NX 594 IMGKST. ;. I {Dismissal of Mos/cr.) claimant, who agreed to go out to Charlottetown, take charge of the vessel as master, and bring her to England tor a certain monthly rate of wages. He accordingly came, and having been put in charge, proceeded in her to Pictou, N. 8., wliere, on the 7th October. 1878, she was attached by the official assignee, the owners having become insolvent. The claimant remained on board, not being recognized by the assignee, yet not being dismis.sed until the 22n(i of April following. On bringing suit for his wages up to that date, it was contended that the insolvency of the owners had ipso Jacln j)Ut an end to the functions of the master, and was ecjuivalent to ;i dismissal. Held, That the master having been in legal po.ssessi(>n of the ship, both as master and purchaser, and not having Im'cm dismissed by the assignee, was entitled to his wages to the full extent of his claim with costs of suit. The Jean Anderson, Young, 244. 2. It appears that intemperance or immorality merely is nut ground for dismissal of the nuister. 2'he Belln Miidrje, ibid, 222. See Master. DISRATING. 1. The power of the nnister to displace any of the officers of tlic ship is undoubted, but he nuist be ])repared to show that he had lawful cau.se for so doing. The Sarah, 1 Stuart, 87. 2. The party discharged from his office is not bound to remain with the ship after her arrival at the first port of discharge, ihid. DO^nCTL. 1. A Frenchman, settled in America, returning to France upon information of war, goes back to America — American domicil nut divested. Les Trols Freres, Stewart, 1. 2. Three years residence with an intended uncertain continuance, though for a special purpose, with trade independent of it, and con- tinued after declaration of war, constitutes a domicil. The Futrlot, ibid, 850. DROITS OF ADMIRALTY. 1. The droits of the Admiralty are distinct from the King's rights — Jure corona: The Lililr Joe, Stewart, 894. 3. As to the droits of the Crown taken before the order for repri- sals.— October lo, 1812. Stewart, 417. See Prize. 3. The V^ice-Admiralty Courts have jurisdiction in all matters arising out of droits of Admiralty. 26 Vict. c. 24, s. 11. Dr(JKST i95 ko charifp of tain niontlilv been put in 7th 0(.'tol)or, vnt'rs hiiviiiL' (1, not beiiii: II til the t2m\ to that datt', ad ipso fitctd uivalont to ;i a I possession laving been 5 to the full oung, 244. lerely is not !, ibid, 222. ftieers of tlic that ho liiiil lid to remain harge. ibid. France upon I ch)micil not continuance, f it, and con- The Patriot, the Kin. 4. An agreement varying the contract of wages in the ship's articles cannot be proved by panjl evidence The Sophia, ibid, 219. 5. As to former incomjietency of witnesses, see The Marij Camji- l>'ll, ibid, 224. <). More credit is to be given to the crew on the alert than to the crew of the vessel that is placed at rest. The Dahlia, ibid, 242. 69(5 DIGEST. {.Erldeiti-c.) 7. In ca^CH of collision it is necessary to prove fault on the part of the p(!rs()ns on board of the ve!»sel charged as the wrong-doer : or fault of the persons on hoard of that vessel and of those on board of the injured vessel. Tlie Sarah A)oi, ibid, 300. 8. Entry of the desertion in the official log-book deemed sufficient proof, unless the seaman can show, to the satisfaction of the Court, that he had sufficient reason for leaving the ship. The Waahlngbiu Irving, 2 Stuart, 97. 9. Witnesses, by reason of interest, are no longer incompetent to give evidence. The question as to their credibility is for the di- cretion of the Court. The Courier, ibid, 91. 10. Affirmative testimony is entitled to greater weight than nega- tive. The Av(/lo-Saxon, ibid, 117. 11. Where an affidavit was obtained, before suit brought, from a pilot, imputing fault to himself in the management of a ves.>-il under his control as such, and furnished by liini to the adver.-c interest in a case of collision to serve as evidence, it was struck from the record. The Enmore, Cook, 139. 12. Obtaining certificates, statements, and especially affidavits, from persons on board an injured vessel, to avail as evideiuc against their own vessel, is viewed by the Court with strong dis- approbation, and to be reprobated, ibid. 13. In causes of collision the Court will not receive as evidence the depositions of persons professing to be skilled in nautical affairs as to their opinions upon any stated case. The Attila, Cook, 199. See Collimm, 131. 14. Nor in salvage cases will the Court be guided by the opinions of soi-disant skilled persons pronouncing upon the value of servicts on a hypothetical case, but will exercise its own judgment on ii review of all the circumstances. The Victory, ibid, 337. 15. When items in a claim referred to the registrar are disj)Utoi!, the principles of evidence applicable in ordinary suits come into play. The Celeste, ibid, 77. K). Reasonable and probable cause involves the consideration nC what the facts of a case are, and what are the reasonable deductions from these facts. The Atakuja, ibid, 234. 17. And these facts must be legally cstal)lislied — hearsay evi- dence is insufficient, ibid. 18. The evidence of respectable persons may be disproved I'} facts and stronger evidence. The Herkimer, Stewart, 22. oil the part wrong-doer : oso on board led sufficient )f the Couit, Washington competent to for the di-- t than nega- iight, from ;i of a vesM-l the advei.M' : was struck y affidavits, as evidence I strong dis- as evidence utical afiiii rs L'ook, 199. the opinion.'^ e of services gment on a ire dispute!, s come into ?ideration nC e deductions hearsay evi- isproved ii} !2. DIGEST. EXCEPTIVE A LLEGATION. 1. An allegation exceptive to the testimony of a witness on tlio ground that he did not believe in tiie being of a God, and a future state of rewards and puiiishnients. The liij-town, 1 Stuart, '2>'0. 2. As to the competency of a witness, see The Courier, 2 Stuart, !)1 . FEES. 1. All fees of office, properly so called, are presumed to have a legitimate foundation in some act of a cijuipetent authority, origi- imlly assigning a fair (it(rd August, 1888, under the authority of the Act 20 Vict. c. 24, s. 14, see Cook, p. 372. 14. For table of fees to be taken in the Admiralty Divisions of the KxcluMjuer Court of Canada by the officers and practitioners, estal)lished by Order in Council of June 10th, 189.'), .see ante, p. 527. FISHERY ACTS OF CANADA. 1. An American fishing schooner was seized by one of the cutters appointed by the government of Canada for the protection of their fisheries for being engaged in catching fish within the limits reserved by treaty and l)y the Dominion Fishery Acts. The evidence on the part of the prosecution was to the effect that, when boarded by the cutter, there were fish freshly caught U{)oii the schooner's deck, and every indication of the crew having been very recently engaged in the management of their lines. The only evidence offered for the defence was that the fish had been caught merely for the })ur- pose of food. Held, That the vessel should be forfeited, with all her tackle, stores and cargo. The Wavipaiuck, Young, 75, l)l(4HJ>T. i99 ti'-e cannot wd to tlioiii )ko, in til is t" ii statute, (1 as funda- (1. ibie(led against in tiiis case was found by one of the cutters in the midst of a mackerel Hoot, within tiie prescribed limits, and overhaule(l, but afterwards permitted to go; but, on further information being received, was seized, on a subsecjuent (lav, in an adjoining port. The only material evidence against her was that of the crews of two other fishing schooners, who testified that they had seen lines and bait thrown out from the suspected vessel, and that her men had continued trying for mackerel until the cutter came up. This evidence was turther strengthened by admissions of the men going to show that they had actually taken iiuickerel. Held, That the vessel was forfeited. The A. J. Frnuk- lln, ibid, 89. 4. The treaty by which the United States formally renounced the liberty they had hitherto enjoyed of fishing within the pre- scribed limit of three marine miles of any of the l)ays or harl)ors of His Britannic Majesty's dominions in Ameri(,'a contained the following proviso : " Provided, however, that the American fisher- men shall be permitted to enter such bays or harbors for the i)ur- |)oso of shelter, and repairing damages tlierein, and of purchasing wood and of obtaining water, and for no other parpone icluitrrcr.'' The J. H. NickerKoa entered the bay of Ingonish, in Capo Breton, for the alleged purpose of obtaining water, etc. ; but the eviilence clearly showed that the real object of her entry was to obtain bait, and that a (pnintity of bait wa.-* so procured. She was seized by the government cutter, after she had been warned off, and while she was still at anchor within three marine miles of the shore. Held, fhat she wa- guilty of procuring bait, and preparing to fish within the prescribed limit, ami must therefore be forfeited. Tlie J. H. Nickeraoii, ibid, 9(5. 0. The following is a contrary decision. An American fishing vessel, the W. F., in November, 1!• ( ieo. III. e. .'IS, and the Canadian Statutes .'ll Viet. e. fil, and \Y-\ Vict, e. !•'). An application was made hy the Crown, on the part of tlir Attorney (irneral of ( 'aiuida, for a monition eallinL' iijion the ownei« of the ve.^sel to show cause why she should not he condemned n.» f()rfeitee(l .'-^ejjteinher 'J8th, ISfiO, jlouging in the; navy of the I'inted States of America, and on '^oard vessels of emnmeree, was abolished from and after the j)a.i)0. FOG. L An omission to ring a hell in a fog, covered where an anchor light was seen in time to av/(t, (Jook, 215. 3. Hearsay evidence under the circumstances not admissible. Ibid. 4. The owners declared entitled to an indemnity by the Commis- sioners of the Imperial Treasury, under the provisions of the statute. Ibid. 5. Costs in this case were allowed against the Crown, ibid. See Cost.'i, 11. 6. Damages in respect of search and detention under the Act restricted to the natural and proximate consequences, and damages remote and consequential not allowed. The Aialaya, Cook, 260. See Damages, 7. FOREIGN SHIPS. 1. The ancient jurisdiction of the Admiralty restored by 3 &. 4 Vict. c. 65, s. 6, with respect to claims of material men for neces- saries furnished to foreign ships. The Mary Jane, 1 Stuart, 271. % DKiHST Mf\ 'annda by iin I'H Vict. J. j;{. ainc'iit of tliL' Vict. c. i>H). 's of Aniericii >{({, p. ;J()8. Tcr Majcstv'« of a friciidlv crials, aiiituii- of such .--liij). )ix'i- )f the 5«tatiiti'. 1. Ibid. ider the Act and damages look, 260. •ed by 3 & 4 m for neees- Luart, 271. {Foi'ii*.sels arc the property of forei).'n iiwncrs. The Ainir Johannc, 2 Stuart, 4.'). '■]. IJy 2(1 Viet. c. 24, s. 10, the ancient jurisdiction restored to Viee-Admiralty Courts, with respect to claims of nuUerial men fur lu'ces.sarics furni>hcd to forci^in ships, ttntf, p. .'>.')l!. 4. The rides prescribed by the Act respecting' the navi^'ation of ( anaiiian waters are operative upon foreign as well as iiritish ships, ill Vict. c. r>«, s. 10, anh'., p. 382. (U. S. C. c. 7i>.) 5. Where vessels are within Jiritish waters, a statute jreneral iit li rms, and intended for the protection of navigation, would apply u> foreigners, as in case of a statutory obligation to tak«^ pilots on liiiurd under certain circumstances. Set! The Milj'ord, Swa. p. .'?()7. (). The 189th sec. of the Merchants Shipping Act, ]8r)4, applies t(i foreign as well as Hritish vessels. Tlie Motuivk, Ct/ok, .'!46. See Wugex. FOREIGN STATE. See Seamen, 2. FOKEEITrKES. 1. The Court of Vice-Adnuralty in the colonies has concurrent iurisdietion with Courts of Record there in case of breach of anv Act of the Imperial Parliament relating to the trade and revenues nt' the Briti.sh possessions abroad. See Vlce-Admirultij Court, o. 2. Also jurisdiction in case of forfeitures and penalties incurred Ity a breach of any Act of the Pntvincial I'arliameut relating to the customs as to trade and navigation. See Vice- Admiralty Court, 0. o. Under the Act regulating the trade of the British possessions ai)road, no suit for the recovery of any penalty or forfeiture to be commenced except in the name of some superior oHicer of tht; Cus- toms or Navy, or by His Majesty's Advocate or Attorney-tJeneral t'ur the place where such suit shall be commenced. The Dnmjrien- fhirr, 1 Stuart, 245. 4. Vessels for warlike purposes, fitted out or equipped in Her Majesty's dominions, without Her i\Iajesty's license, contrary to 0(11 1)|(;kst. (Fiir/ilhin.^.) "Tin' l"'. I!l. 'J Stuait, '_'!»!. ."». rmlcr Mcc. ."{O uf Miid Act, Court of Ailmiiiilly ^liull tnciui tlic Ili^ili Court of Atlniinilly of I'lnirjiiiiil or Irclund, tlic Court nt' Session of ScotlaiMl, or any N'icc-Adiiiiiiilty Court within lln Majcsty'.s (loiiiinions. Srn 2 Stuart, 'J!>7. (». floods imported without payiii;,' duties rcfjuircd Ity law air liahle to forf<'iture. 'J lir (Jitmi v. (Jn/il Wnk'/ieif, Youn;;, 17!*. See Till Minn If, Voiiiil;, tl"). 7. As to what will work a forfeituri' of master's wages, see '/Vc' Alvxittidcr W'il/iaiiix, Ibid, 'J 17. Soe note to Thr Mi.stlclot', Stockton, iiiit>\ p. 127. 8. Misconduct on the ])art of salvors will work a forfeiture dt right to salvage. The ( linr/rj Forhex, Young, 172. Se(.' note to TIte St. C/oiid, St:)ckton, nnh', p. If);'). !). The Court has full jurisdiction to impose penalties for illegal tlistilling ot' spirits. T/n' (/iircii v. Flint, ^'oung, 2-S(). HdQ Fenollli'S ; Violndou of licrcnitr Ldw.i. FOIL HKKTH. 1. If one vessel conies to an anchor, it is the duty of those in charge of any other vessel anchoring near lier to do so in such ;i I)()sition as that the vessels may swing with the tide without risk nl' coming together. The liockamnj, 2 Stuart, 12!). See Colli.iiuii, 51, 81), 1-1(5. FUKTHEK I'KOOF. 1. Not allowed to a party who liad been guilty of fraud ami perjury in a recent case, exteniling to the present. The 'Thr"- Brothers, Stewart, !)!). 2. Not .sufKcient where it did not explain the whole transaction. The Fly, ibid, 171. 3. Not allowed unless some ground is laid for it in the original evidence. The Johanna, ibid, 521. 4. A cargo totally destitute of proof of j)roperty, and without any ' tlic ('oiiil III' t witliiii Iln •il l>y law air uii;r, ITlt. \viij,'('H, sec Tli'' 11 tnrf'citiii'c tics fur illegal 0. ity of those in lo HO ill siR'li a A'itlioiit risk of oi" fruiul and . The T/mr e transat'tioii. I) the original d without any tive, ibid, 571'. DKJKST. I'liKKiiiT AM) i;.\im:nsix 1. .'^otiio cdpiMr in har^ wan <'(initai.. 1. The provincial law ol' Nova Scotia for attaching; the ^'oods of ahscondinjj; del)tors, no excuse to prize agents for not payinj^ un- cluirned .'^hareM to (Jreernvlch hospital. The liennnild, Stewart, 21)1. IIAHKAS COKITS. ."^ee J'Irat'i/, The ChiAdfjcdke, (.iite, p. '208. HAUHOII. 1. Personal torts committed in the harbor of (Quebec are not within the jurisdiction of the Admiralty. The Friendx, 1 Stuart, 11 'J. See Ailmirnlti/ Jiirlsdirtion, 1. 2. I)ama;,M's awarded in ease of collision in the harbor of (Quebec. The Lord John Rnm.U, ibid, 1!»(). 0. A vessel moored alongside of another at u wharf in the harbor of Quebec made responsible to the other for injuries resulting from lur proximity. The Xcw York I'dcket, ibid, .'52"», 4. A declinatory exception overruled in a suit for an injury done i)y collision in the harbor of (Quebec. Tlie OniiilluK, ibid, 3cS;j. See Declinatory Exception. See Harbor Master. ■"). A vessel contravening the harbor rcgulatidus liable for dam- ages arising from collision. The Edilh Wirr, Young, 237. See CoUiidon. See Inevitable Accideid, HAKIK)K MA.STER. 1. The rules of the Trinity Flouse of (Quebec empower the harbor master to station all ships or vessels whieh come to the harbor of »;().> 600 J)I(;kst, (JLn-hor 3I, Young, 14!); h. c. 2 Stuart, ;>70. See Nora Scotia. See rule 37, sub-sec. (b). ante, p. 420. i limits of* tlic d shifting aiid :io\v far iind in wrsoiis haviiif otlicr in their lic'h may arise tuart, o2'). r's order con- tleetion heiuic 5tuart, 11). Jurisdiction <>{' v.t. e. Go. r and marshal sit in Hou.-e marshal ahdl- . ibid. .ly revise the ourt. ibid. the judge. LAND. in rehition to an vessel in a liralty Court. DKiKST. LMMORALITY Oil INTEMPERANCE OF MASTER. See Mnnter. Also see unte, pp. 127, 1'''54. IMPERIAL PARLIAMENT. See Ads of I'ltrliniiwiif. IMPORTATION. What countries under the revenue laws. The ^fin^t!e, Young, 71. INEVITABLE ACCIDENT. 1. Where a collision occurs without blame being imputable to either party, loss must lie borne by the party on whom it haj)pen> to alight. The Murgnvt, 2 Stuart, 19. 2. Inevitable accident is that which the party charged with could not possibly prevent, by the exercise of ordinary care, caution, and maritime skill. The Mc.Leod, ibid, 140. .'>. As to what constitutes inevitable accident, and the rule as to the burden of proof, see Thf Chuse, Young, at p. 118. See The Edith Wier, ibid, 2;5!l. 4. The steamer Jiichmond, while seeking shelter from a violent storm, and using every [)ossible precaution, unavoidably ran down and sank a small schooner, on an action for damages. Held, That judgment should be for defendant, each party paying his own costs. The Richmond, ibid, 164. 5. Where the defence is inevitabl(> accident the plaintitf must lu'gin. Tlie John Owen, 5 Can. L. T. oO'). But see contra. The Otter, L. li. 4 A. & E. 201]. See The Emma K. Snudlei), ante, ]). 100, and The Minnie Gordon, Hide, J). t)5 ; also note to last case, ante, p. 1)8, for a citation of the luiglish authorities. See Collision, 108, 111, 137, 155, 1(34, l(i6. INLAND NAVIGATION. 1. Regulations res[)ecting collisions ajiply to ships of the United States. 2 Stuart, .'512. 2. As to maritime commerce of Western Lakes not being inland navigation, see opinion Supreme Court of Michigan, ibid, 329. See R. S. C. c. 74, ante, p. 3e ante, p. 413. uiralty Courts I Stuart, 259. Tiend the pm- t of the Court Stuart, 261. inient or prac- JOINT CAPTURE. See La Furierise, Stewart, 177. JUDGE. 1. For commission of the Judge of Vice-Admiralty Court of Lower Canada, see 1 Stuart, 376. 2. List of Judges in (Quebec since the cession of the country by the Crown of France to Great Britain, ibid, 391 ; Cook, 410. 3. The method of appointment of a Judge and other officers of the Vice-Admiralty Court was provided for by 26 Vict. c. 24. 2 Stuart, p. 2o4. It is now governed by The Admiralty Act, 1891. 4. For commission of Judge of the Vice-Admiralty Court of (Quebec, see 2 Stuart, 377. See Lord High Admiral. See Kerr (Judge). JUDGMENT. 1. The merits of a judgment can never be overrated in 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 purpose-s. The Phebe, 1 Stuart, 63, n. See Moaes v. Macferlan, 2 Burr, 1005. JUDICIAL COMMITTEE. See Privy Council, JURISDICTION. 1. The Court has no jurisdiction in a case of pilotage, where there has been a previous judgment of the Trinity House upon the same demand. The Phwbe, 1 Stuart, 59. 2. The jurisdiction of the Court in relation to claims for extra pilotage is not ousted by the Provincial statute, 45 Geo. III., c. 12, s. 12. The Adventurer, 1 Stuart, 101. 3. In case of wreck in the river St. Lawrence (Rimouski), the Court has jurisdiction of salvage. The Royal V^llliam, 1 Stuart, 107. 4. A great part of the powers given by ihe terms of the com- mission or patent of the Judge of the Admiralty is totally in- iiperativc. The Friends, 1 Stuart, 112. 01) :^ 610 DIGEST. {Jurisdiotio)!.) 5. The Court of Admiralty, except in prizes, exercises an orig- inal jurisdiction only on the grounds of authorized usage and established authority, ibid. 6. It has no jurisdiction infra corpus comiUthis. ibid. This is now changed by 8 & 4 Vict. c. 65 (1840). See ante, p. 316. 7. The Admiralty jurisdiction as to torts depends upon locality, and is limited to torts committed on the high seas. ibid. 8. Torts comniittcd in the harbor of Quebec are not within tlio Admiralty jurisdiction, ibid. 9. The Admiralty has jurisdiction of personal torts and wrong:« committed on a passenger on the high seas by the master of the ship, ibid, and Tht Toronto, 1 Stuart, 170. 10. Justices of the Peace cannot give themselves jurisdiction in :i particular case, b\ finding that as a fact which is not a fact. Tlir ScMia, 1 Stuart, 164. See Justices of Peace. 11. The Court has no jurisdiction in a claim of property to an anchor, etc., found in the river St. Lawrence, in the district ut' Quebec. The Romidus, 1 Stuart, 208. 12. Collision between a steamboat and a bateau, both exclusively emj)loyed in the harbor of Quebec, not cognizable by this Court. The Lady Aylmer, 1 Stuart, 213. This was prior to 3 & 4 Vict. c. 65, s. 6. ante, p. 316. 13. The Court has no jurisdiction for the cost of materials su]t- pHed to a vessel built and registered within the port of Quebec. The Mary Jane, 1 Stuart, 267. 14. Where the Court has clearly no jurisdiction, it will prohibit itself ibid. 15. 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, 1 Stuart, 383. 16. In the case of forfeitures and penalties incurred by a bi'eaeh of any Act of the Imperial Parliament relating to the trade and revenues of the British possessions abroad. See Vice- Admiralty Court. See Forfeitures, 1, 3, 4, 5. cises an oriir- ed usage and d. upon locality, )id. lot within tlie s and wrongs master of the rir-diction in :i ; a fact. Tin- n-oporty to an the district (jf th exclusively by this Court. 16. materials sup- rt of Quebec. will prohibit liction in the awrence, near d by a breacli he trade and DIGEST. {.Jiirisiiicdon.) 17. In the case of forfeitures and peinilties incurred by a breach of any Act of the Provincial Parliament, relating to the customs, or to trade or navigation. See Vice- Admir alt ]i Court. See Forfeitures, 2, 0, !>. 18. Although the Court abstains from interposing its authority in cases of mere disputed title, its jurisdiction over causes of posses- sion has been constant and uninterrupted. The Haidee, 2 Stuart, 25. See now Admiralty Court Act, 1861, .sec, 8. 19. The occasion of the exercise of this jurisdiction arises gen- erally in cases between part-owners, who cannot agree respecting the employment of their ships, ibid. (All questions of dispute between co-owners may now be enter- tained by this Court. See Act of 1861, sec. 8. The Seaward, B E. C. R. 268.) 20. The authority of the Court t(, detain the ship at the instance of the real owner, against a mere wrong-doer, is undoubted, ibid. 21. When the Court has original jurisdiction of the principal matter, it has also cognizance of the incidents thereto, ibid. 22. The Court has jurisdiction in cases of collision occurring on the high seas, where both vessels are the property of foreign owners. The Anne Johanne, 2 Stuart, 43. 5ee ColU.von, 63, 67, 70, 95 98, 118, 147, 151, 154, 160, 167. 23. The power of the LegislatHre of Canada extends to foreigners when within our own jurisdiction. The Aurora, 2 Stuart, 53. 24. As to other matters, in respect of which the Vice-Admiralty Courts have jurisdiction, see 26 Vict. c. 24, s. 10. ante, p. 356. See now The Admiralty Act, 1891. ante, p. 402. 25. The jurisdiction of the Vice- Admiralty Courts in Her Majesty's possessions abroad, may be exercised, whether the cau.se or right of action has arisen within or beyond the limits of such l)ossession. ibid, ante, s. 13, p. 357. 26. Except where it is expressly confined by that Act to matters arising within the possession in which the Court is established. ibid. 27. All proceedings for the condemnation and forfeiture of a ship, or ship and equipments, or arms and amunition of war, in pur- 611 612 DIGEST. ii {Jurisdirflo}).) suar.ce of "The Foreign Enlistment Act, 1870," shall be had in the Court of Admiralty, and not in any other Court. 33 & 34 Vict, c 1)0,5=. ]!). 2 Stuart, 291. See Forfeitures. 28. The Court can, under the 20 Vict. c. 24, s. 10, enforce the payment of reasonable towage, but has no authority to enforce an agreement to employ a particular steam-tug either for a definite or an indefinite quantity of work. The British Lion, 2 Stuart, 114. See note to The Hattie E. King, Stockton, ante, p. 177. 29. "The Merchant Shipping Act, 1854," excludes the jurisdic- tion of the Admiralty in suits for wages when the amount due is less than CoO sterling. Where the balance due to the master of a ship appeared to be under that amount the claim was dismissed, without an exception to the jurisdiction pleaded. The Margaretha Stevenson, 2 Stuart, 192. This is not now the law. See note to The Jonathan Weir, ante, p. 80 ; also see The W. J. Aikens, 4 E C. R. 7. See Wages. 30. The Vice-Admiralty Court at Halifax, in Nova Scotia, exer- cises jurisdiction iu the case of a vessel injured by collision iu the harbor of Halifax. The Wavelet, 2 Stuart, 354, 357 ; s. c. Young, 34. Collision, 149, 153. 31. Also where damage was caused to a wharf by the vessel. The Chase, 2 Stuart, 3(51 ; s. c. Young, 113. 32. "The Imperial Act" (24 Vict. c. 10), whereby the jurisdic- tion of the High Court of Admiralty of England has been extended and the practice improved, confers jurisdiction upon it over claims for damage to cargo imported into England or Wales, and for wages due to seamen under a special contract. The City of Peteis- Inirg, 2 Stuart, 350; Young, 1. See Imperial Act, 24 Vict. c. 10, s. 6. ante, p. 348. 33. A similar jurisdiction has been conferred upon the High Court of Admiralty of Ireland. 30 & 31 Vict. c. 114, ss. 33, 37; 2 Stuart, p. 268. 34. But withheld from the Courts of Vice-Admiralty, as not included in the Act 26 Vict. c. 24. a7ite, p. 356. But they now have the jurisdiction. I DTOKST. 613 )e had in tlie fe 34 Vict. c. enforce tlw enforce an a definite or tuart, 114. 7. the jurisdic- iiount dne is master of a IS dismissed, Manjaretlui c The W. J. Scotia, excr- llision in the 3. Young, 34. y the vessel. the jurisdic- een extended t over claiiii.'^ lies, and for Jity of Petei's- on the High 4, ss. 33, 37 ; •alty, as not 35. Two out of throe promovents shipped at licrnmda, im hoard the ship libelled, a blockade runner, for the round voyafre from licrmuda to Wilmington, North ("amlina, and thence to Halifax, Tsova .Scotia. The remaining j)romovent shipped at Wilmington in room of one of the others. No ship's articles were signed, hut there was evidence to show that the master had contracted to 2)ay to each of the promovents a certain specified sum, in three equal instalments. The contract was absolute as to two of the instal- ments, and, as to the third, there was j^ condition that it was to be paid only if the claimants' conduct were satisfactory. Held, (\) That this was not an ordinary engagement for seaman's wages, but a special contract ; (2) That previous to the Admiralty Court Act of 1861, 24 Vict. e. 10, the High Court of Admiralty had no juris- Wni. IV. c. 1!), s. 17), had awarded wages to a seaman on the ground that a change of owners had the effect of discharging the seaman from his contract, this Court, considering that the proceedings had before the Justice of the peace did not preclude it from again entering into the incpiiry, Held, That the contract of the seaman was a subsisting contract with the ship, notwithstanding her sale. Ibid. 4. In no form can this Court be made ancillary to the Justices' Court, still less be required to adopt, without examination, as legal l)remises on one demand, the premises which the Justices' Court may have adopted as legal premises on another demand, ibid. 5. In a suit for the recovery of wages under the sum of fifty pounds, justices acting under the authority of the Merchant Ship- ping Act, 18,-)4 (17 & 18 Vict. c. 104, ss. 1^8, 189), may refer the case to be adjudged by this Court. The Varuna, 1 Stuart, o57. 6. Where a linuted authority is given to justices of the peace, they cannot extend their jurisdiction to objects not within it, by finding as a fact that which is not a fact ; and their warrant in such case will be no protection to the officer who acts under it. The Haidee, 2 Stuart, 25. 7. Under sec. 523 of the Merchant Shipping Act, 1854, a ship cannot be seized upon an order nuide by justices of the peace, against a person who at the time, is neither owner nor intrusted with the possession or control of her. ibid. 8. Where a statute required the execution of a warrant or process, under an order of two justices of the peace, to levy seamen's wages to be authorized by the Judge of the Vice- Admiralty Court. Held^ OKi DKiKST. (J 1 1 stilus I if I hi f\(iri .) Tliat the oiiactmonl imposed upon the Court, a duty to suporvise the procecdiii^s of tlic niaj^ist rates, and it apptariiij; that the j)roeos> liad i.si'iied (or thi' sale of an iiiidiviih'd interest in a vessel, and not lepilly, ii petition to authorize them, refust'd. The Cunudlvnm, Cook,' 200. See Bciittii' V. Julumsen, 28 \. Ii. 2(^ .irSTIFICATION. 1. In an action by a seaman against the master, a justification on the ground of mutinous, disobedient, and disorderly conduct sus- tained. The Coldstream, 1 Stuart, 386. 2. To the same eH'ect, see The lirldgewider, Cook, 252. KEKU (JI'D(;K . 1. Appointed judge of the Vice-Admiralty Court of Quebec, by letters patent, under the Great Seal of the High Court of Admi- ralty of England, August 19, 17J)7. 1 Stuart, 1")2. 2. His duties discharged by a deputy from August .'JOth, 183.j, until his removal in 1884. ihid. 8. Two of his judgments. 1 Stuart, 383. LAKES. See Inhuid Navlyidlon, 2. LANDSMAN. Qwire: Whether a mere landsman shipjting himself as an able- bodied seaman is entitled to any allowance whatever. The Venud, 1 Stuart, 92. This is now governed by The ^Merchant Shipping Act, 18o4. See Hanson v. Royden, L. K. 3 C. P. 47. LARBOARD. For a probable derivation of this nautical term, see 1 Stuart, p. 235, n. LAW OFFICERS. 1. Opinion of the law officers of the Crown in England as to the authority of the judge to establish a table of ^^(m. 1 Stuart, 69. 2. Opinion of the law officers of the Crown in Canada as to the j)ractice of requiring proxies to be produced under certain cir- cumstances, ihid, 247. S(!C DKIKST »n7 LI:TTKI{S of MAIHilK t .'JOth, 183;j, ee 1 Stuart. i^v.o. Stewiirt, ;?Mi>, ;{!)1. MHKL 1. All that is ro(|uiriMl inn lilxl tor sciimaii's wa^'cs, is to state tiie liiriiij,', rato (jtwa^ts, pcrluriiiaiici' of llio scrvici', dcttriiiiiiatioii nf the contract, and the refusal of payineut. The yciclium, 1 Stuart, 71. IJCKXSKS. 1. To trade to St. Domingo under Order in Council, l!>tli N'ovcnd)cr, iMOd, the license cannot l>e dispcn.sed with. TIte CI yd*, Stewart, 100. 2. To export from fJreat Britain to the Ignited States, not noccs- .-ary that the jjcrson who ohtained it should \w owner or actual lader if he; had the direction of it. The Abu/aif, ibid, 3");">, 3. It cannot he granted hy an ambassador to trade with tho enemy. The Hnlly Anne, ibid, 307. 4. A licen.se granted under the Order in Council of April H, 1^12, authorizing certain exports and import.s from Halifax to the United States, not valid atter the war commenced with the United States, now rendered valid by the new order of October 13, 1812, •which directed licenses to be granted notwithstanding such war. Tiie Eeo)i(>m(i, ibid, 44(5. 0. A licen.se granted by the British Consul in the United States void. I'he Rtwiird, ibid, 470. 0. A contrary decision given in the High Court of Admiralty. The Hope, ibid, 482. 7. When the licen.se had been burned under a mistake, upon proof of the fact, the vessel restored. The Frederick xiu(jastii.u ibid, 486. 8. A license to trade between two ports of the enemy void, and claimant's expenses allowed under particular circumstances. The Expedition, ibid, 488. 1). The be'iefits of a license not forfeited by carrying a common letter bag, extracts from newspapers, or the dispatches of an ambassador of the enemy in a neutral couutry to his own govern- ment. The Henrij, ibid, 48!). 10. Kot suspended by an order for blockade, where sucli appears to be His Majesty's intention. The Orion, ibid, 497. iilH DKJKST. {IJrenfu'fi,) 11. LicciiscH iiro no protection to jnirtics not naniiMl or di'scrilicil in thcni. Thr Joltiinnii, ihlil, i')2l ; Thr Anih, ihiit, ')4(l. 12. And tluiri' is no exception in favor of British wuhjtM'tH. '/'At Ouba, Ibid, .')'2"). 13. It is forfeited by a deviation froni the voyaj,'e, and takinj,' in a cargo. '/'Ac Hinilcr, lhl)l, r)2M. 14. A h'ak and want of water no oxciimc for deviatinj; fronj the licensed voya^'e. 77/r I'i/yriin, ibid, ')',]'•}. .See The Ikllv, ibid, hWI . LIEN. See Maritime Lieu. LKIHTS. 1. The hoistiii}^ of a lif,dit in a river or liarbor at nij;lit, is a precaution imperiously (htnnmded by prudence, and the oini-ssion cannot he considered otherwise tiian as negligence per .■»(?. Tin Mary Cainpbtl/, 1 Stuart, 225 n. 2. A vesHcl.at anchor in the stream of a navigable river, nnist have at night a light hoisted to mark lier position, The Mirumiclil. ibid, 240. IJ. The omission to have a light on board in u river or harbor iit night, amounts to negligence per He. The Dahlia, ibid, 242. 4. Damages were awarded for a collision, although the niglit at the time was reasonably clear, sufficiently so for lights to be .seen at a moderate distance. The Niagara, ibid, 308. 5. By the Admiralty regulations, and by the Act of the Legisla- ture of Canada, which makes precisely the same provision, sailiuL^ vessels when under weigh are required, between . -"set and sunrise, to exhibit a green light on the starboard side and a red light on the port sitle of the vessel ; and such lights are to be constructed as stated in such regulations. The Aurora, 2 Stuart, 52. 6. For rules concerning lights, i.ssued in pursuance of the Merchant Shipping Act Amendment Act, 1862, and of an Order in Council, dated January 9th, 1864, see 2 Stuart, p. 301. 7. The same rules adopted in the Province of Canada by an Act of the Legislature passed June 30th, 1864. ibid, 315. 8. In the United States of America by an Act of Congress passed April 29th, 1864. ibid, 318. not hKiKST. (;ii» or (It'rtcril)C(l ul.jocts. Th, 1111(1 taking in ting from the lit night, iH 11 tlu! oniisnion per ne. Tlu e river, must \he Miramichl. ' or harbor tit I, 242. the night at i to be seen at ''■ the Logi.shi- .'ision, sailing and sunri-Hf, red liglit on 3 constructed )2. ance of the ' an Order in hi by an Act igress passeii {Liilhts.) !>. And in the Dominion ofCanmia by an Act pnssefl May 22nd, IsriH. ih'ul, 151"). For diagrams to iilnstratt' the iwe of tin' lights ( !irrii'(| by vi'sscls nndcr the regnlations of this Act, sec ih'nl, '08. 2. The ship i.s clearly responsible for the fault of her lookout. The Mitry Bannati/ne, ihid, .')54. 3. The want of a conii)etent and vigilant lookout exacts, in all cases, from the vessel neglecting it, clear and satisfactory })ro(il' that the misfortune encountered was in no way attril)utable to her misconduct in this particular. The Secret, 2 Stuart, 133. 4. It is not judicious that the man stationed as the lookout should be a foreigner speaking English imperfectly, and consequently liable to make reports slowly and incorrectly, and perhaps more or less unintelligibly. The Orioital, ihld, 144. See The Courier, ibid, 91 ; The Gordon, ihid, 1!)8. 5. The speed of the steamer, and her defective lookout, rendered her liable for damages caused by collision. The Alhamhra, Young, 249. 6. \ sufficient lookout must l)e maintained throughout, and neglect in this respect will create liability for damage resulting. The Clementine, ibid, 18(i. 7. The M., close-hauled on her port tack, heading about south- west by west, and g'ling about three kn(4s an hour, with the wind south, came into collision wiih the M. P. heading east, and running free about ten knots an hour. Held, from the evidence, the M. 1*. had no proper lookout, and she was accordingly condemned in damages and costs. The Maud Pt/e, Stockton, lOJ. See note to this case, ante, at }). 104. See also The Paramatta, ante, p. 192. See Collision, 48, 84, 132, 148, 153, lofi, 165, 168. LORD HIGH AD>[IKAL. 1. Nothing in the Vice-Admiralty Court Act, 1863 (2^ Vict. c. 24, s. 7), to affect the powers of the Lord High Admiral. See note to The Teddington , ante, p. 60. 2. Their powere and history. The Little Joe, Stewart, 394. iiffioient ovi- oii for k'aviiiir and sufficient her lookout. exacts, in all sf'actory })ro(ii" )u table to her |133. ookout should consequently perhaps more :out, rendered foung, 249. ougliout, and ige resultini:. about soutli- vith the wind and running oe, the M. V. >ndemoed in i3 (2r Vict. iral. •t, 394. DIGEST. MANAGEMENT OF SHIP. 1. Vessel not liable tor niisnuuiagement of pilot under tlio law. The Lotus, 2 Stuart, oM. MARINER. See Seamen. MARINER'S CONTRACT. t 1. Articles not signed by the master as required by the General Merchant Seamen's Act (7 & 8 Vict. c. 112, s. 2), cannot be enforced. 77(6- Lad;/ Sraton, 1 Stuart, 2G0. Tills is now governed by the Merchant Shippip'r Act, 1854, and K. S. C. c. 74. 2. A promise made by the master at an intermediate port in tlie voyage to give an additional sum over and above the stipulated wages in the articles is void for want of consideration. The Lock- w'Kxit, 1 Stuart, 123. 3. Change of ownei-s, l)y the sale of the vship at a British port, does not determine a subsisting contract of the .seamen, and entitle them to wages before the termination of ihe voyage. The Scotia, 1I'!<1, 160. 4. Where the voyage is liroken up by con.sent, and the seamen continue, under new articles, on another voyage, they cannot claim wages under tiie first articles subsequent to the breaking up of the voyage. The Sophia, ibid, 21 1>. a. Whether, wlien a merchant ship is abandoned at sea sine spe n'uerteiidr, in con.secjuence of damage received and the state of the elements, such abandonment taking place bo)ia fide and by order of tlie master, for the purpo^ of saving life, the contract entered into l)y the mariners is, by such circumstances, entirely put an end to ; or whether it is merely interrupted, and cajiably, by the occurrence of any and what circumstances, of being again called into i'oioe. The Florence, ibid, 254, note. 6. Where seaman shipped for "a voyage from the port of Liver- pool to Constan'Ople, thence (if recpiired) to any port or places in the Mediterranean or Black Seas, or wherever freight may oHer, with lil)erty to call at a port for orders, and until her return i,. a final port of discharge in the United Kingdom, or for a term not to exceed twelve months," and the siiip went to Constantinople in [irosecutif)!! of the contempl.ited voyage, and then returned to Malta, whence, instead of going tc a iiiuil i)ort of destination in tlie United t;2i i k^'i fy22 D1(}KST. (Jldrlncr's Contract.) Kingdom, she came direct to Quebec in search of freight, which she had failed to obtain at the ports at wliich she had previously been, it was Held, That coming to Quebec cni'ld not be considered a prosecution of the voyage under the 5)4th section of the Mercantile Marijie Act of ISoO, re-enacted by the 190th section of the Mer- chant Shipping Act, 18o4. The Varuna, 1 Stuart, 3o7. 7. The words " nature of the voyage " must have such a rational construction as to answer the leading purposes for which they wero framed, viz.: to give the mariner a fair intimation of the nature of the service in which he engages, ibid, note, p. 361. 8. The words " or wherever freight may offer " are to be con- strued with reference to the previous description of the voyage ibid, 360. 9. The words " or elsewhere " must be construed either as void for uncertainty, or as subordinate to the principal voyage stated in the preceding words, ibid, 361. 10. Where the voyage in the shipjjing articles is described as one to North and South America, Held, That such description is too indefinite under the Merchant Shipping Act, 1804. The Mani- thon, 2 Stuart, 9. 11. Where the voyage in the shipping articles is described as one to the United States, Held to be a good description under the terms "nature of the voyage" in the Merchant Shipping Act, 18")4. The EllevKtie, ibid, 35. 12. Where the voyage was described to be from Liverpool to Savannah, ami any jiort or |)orts of the United States, of the West Indies, and of British North America, the term of .service not to exceed twelve months. Held, That the voyage intended was con- fined to the ports on the eastern shore of the continent, and that the articles did not authorize a voyage to San Francisco on the north-west coast. The Ado, ibid, 11, note. 13. Where there was a deviation in the voyage from that stated in the Shipping Articles, occasioned by a return to the port of Quebec, not specified in them, the engagement of a seaman was terminated, as there was no subsisting contract ; and a plea to the jurisdiction alleging a subsisting voyage under the 149th section of the Merchant Shipping Act, 1854, which enacts that " no seaman who is engaged for a voyage or engagement to terminate in the DHIEST. *m freight, which ad previously be considered the Mercantile n of the Mer- 57. uoh a rational lich they wen' of the nature ire to be con- f the voyage. ither as void yage stated in 1 descril)ed as description is i. The Mara- s'Tibed as one ider the terms g Act, 1854. Liverpool to i, of the West iervice not to ided was con- ent, and that icisco on the n that stated the port of seaman was a ])Iea to the )th section of " n(> scuniaii linate in the {31ari}i(T's Ointracf.) United Kingdom is entitled to sue in any Court abroad for wages," overruled. The Lntona, 2 Stuart, 203. 14. (^iKtre : How far can an engagement of a seaman, void from not stating the nature of the voyage, as required by the Merclumt Shipping Act, 1 exceed two years." No seaman who is employed for a voyage or engagement which is to terminate in the United King- dom can sue in a Colonial Vice-Admiralty Court for his wages, unless discharged as directed by the General Merchant Seaman's Act. The Admiralty Court has no jurisdiction la a suit to recover seamen's wages, unless the sum claimed amount to at least fifty pounu,! sterling. The Velocifi/, James, 390 (1>^55). See Jurisdiction; Kova /Scotia; Special Contract; Seaman; Master of Shi]) ; War/es. MARITIME COURT OF ONTARIO. 1. The Court has no jurisdiction in respect of claims that ac- crued before the proclamation bringing the Act, constituting the Court, into force. The Kate Moffat, 15 Can. L. J. N. S. 284. 624 DKJKST. {Man'thiic Coiirf of Ontario.) 2. Tlic .sale of an Ainericaii vessel under the process and by direction of tlie Court held valid. For cases on this subject of credit to be given throughout the world to sales under the authority of the Admiralty, see per lirowii, J., of Detroit, The Trenton, 17 Can. L. J. N.'s., 189. 3. No counter claim can be })leaded in this Court in a cause of dumage. The F. J. King, 8 Can. L. T. 156. See Jurisdiction, 44, 45. This Court has been abolished, and jurisdiction given to the Exche(|uer Court of Canada by the Admiralty Act, 1891. See Viee-Admiraliij Court. MARITIME LIEN. 1. Salvors have a right to retain the goods sa^ed until the amount of the salvage be adjusted and tendered to them. The Royal William, 1 Stuart, 107. 2. In the civil and maritime law of England no hypothecary lien exists without actual ])ossession for work done or supplies fur- nished in England to ships owned tiiere. The Mary Jane, ibid, 267. 3. A maritime lien does not include or require possession. The Hereyna, ibid, 275 n. 4. It is defined by Lord Tenterden to mean a claim or privilege upon a thing to be carried into effect by legal process, ibid, p. 276. 5. Where reasonable diligence is used, and the proceedings are in good faith, the lien may be enforced into whosesoever possession the res may come. ibid. 6. A maritime lien is not indelible, but may be lost by delay to enforce it when the rights of other parties have intervened. The Haidee, 2 Stuart, 25. 7. pjxcept in the case of bottomry, a maritime lieu is inalienable and cannot be assigned or transferred to another person, so as to give him a right of action in, rem as assignee. The City of Mani- toivoc, Cook, 185. 8. The master of a vessel, who was also part owner, can jnoceed against the vessel for wages, and the fact that be had accepted a promissory note from three of his co-owners for the amount of hi- claim, which was never ])aid, did not deprive him of his lien upon the ship, although it had been sold to and paid for by a third party ignorant of the debt. The Aura, Young, 54. •ocess and l)y his subject of • the authority The Trenton, in a cause of }?iven to the 1891. ;ecl until the ) them. The ) hypothecai-y I- supplies fur- ^a»e, ibid, 267. ^session. The n or privilege ibid, p. 27*). oceedings are ver possession 5t by delay to rvened. The is inalienable rson, so as to City of Mani- ', can proceed id accepted a iniount of his his lien upon a third party i)I(;KST. { M'lri/i'ij'i Tjicii.) 9. The plaintiH" brought an action against the P. for wages and disbursements as master of the vessel. In answer to the master's request when abroad for a statement of his account and for pay- ment, the managing owner sent the master his individual promis- sory note for S800, payal)le with interest, on account of the wages. The managing owner subse([uently became insolvent. The master, on his return to St. John, N. B., demanded payment from the owners of his wages and disbursements, the sum claimed including the amount of the promissory note. The owners, by their counter- claim, sought to set-ott' against the master's claim, among other things, the amount of the promissory note; but Held, That the master, under the circumstances of the case, had not lost his lien upon the vessel. The set-off was rejected, and the plaintiff held entitled to recover, with costs. The Plover, Stockton, 129. See note to this case, ante, 134, where the English, American and Canadian cases are cited. 10. There is no maritime lien for freight and demurrage. The Cargo ex Drake, 5 Can. L. T. 471. 11. The master has a lien for wages as against a mortgage. The C. N. Pratt, 5 Can. L. T. 427. See also The Maytham, 18 Can. L. J. 285. 12. The House of Lords, in The Sara, 14 App. Cas. 209, decided that a master had no lien for his wages and disbursements, but it was subsequently given by the Merchant Shipping Act, 1889 (Imp.), ante, p. 85. The same law now obtains by legislation in Canada as respects the inland waters, ante, p. 370. 16. As to priorities of liens, see note to The Borzone, ante, p. 118. MARSHAL. 1. As to the appointment of marshal on a vacancy occurring in the office. 26 Vict. c. 21, s. 5. This is now governed by the Admiralty Agt, 1891. 2. He cannot deliver up priz2 property without an order from the Court. Snook's Petition, Stewart, 427. 3. As to fees formerly entitled to for custody of vessel, see The Hiram, Stewart, 583. I'P 625 626 DIGEST. ■f U J. ; MASTER OF SHIP. 1. The master adruitted as a witness in a case of pilotage. The Sophia, 1 Stuart, 9<). No witnesses are now incompetent by reason of interest. 2. A promise made by a 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 want of consideration. The Lock- wooda, 1 Stuart, Vl?>. See Mariner's Contract. 3. Upon the death of the master during the voyage, the mate succeeds him as hivres necessarian. The Brimsn'ick, I'uld, i;>9. 4. Possession of the ship awards to the master ajjpointed by the owner to the exclusion of the master named by the shippers of the cargo. The Mari/ and Dorothy, 1 Stuart, 187. 5. By 17 & 18 Vict. c. 104, s. 240, power is given to any Court having Admiralty jurisdiction in any of Her ^lajesty's dominions to remove the master of any ship, being within the jurisdiction of such Court, and to appoint a new master in his place, in certain cases. Ibid. 6. The master of a merchant vessel may apply personal chastise- ment to the crew whilst at sea, the master thereby assuming to himself the responsibility which belongs to the punishment being necessary for the due maintenance of subordination and discipline, and that it was applied with becoming moderation. The Coldstream, 1 Stuart, 386. See Wages, 2(5. 7. He is to have same remedies for wages as seamen (17 G. See PreKumpiion. See Pilot, 7, 8. MISDPLMEANOU. See Mader of Ship. MOORING. 1. A ves.sel which moors alongside of another at a wharf or else- where, becomes responsible to the other for all injuries resulting from her proximity, which human skill or prevention could have guarded against. The New yorlc Packet, I Stuart, 32!) n. See also The Were Here, Young, 13H; The Chase, ibid, 113; The Frier, Stockton, ante, p. 180. MORTGAGE. 1. Vice-Admiraly Courts have jurisdiction in respect of any mortgage when the ship has been sold by a decree of the Court, and the proceeds are under its control. 3 & 4 Vict. c. (Jo, s. 3, ante, p. 315 ; 24 Vict. c. 10, s. 11, a)ite, p. 350. MUTUAL FAULT. See Division of Damages. NAVIGATION. 1. The same rules of navigation, and the same precautious for avoiding collisions and other accidents as are now adopted in the United Kingdom and other countries, are also adopted in the Dominion of Canada. R. S. C. c. 79, ante, p. 372. 62l> 630 DKJKST. 5 1 * « ; ft NAVIGATION LAWS. 1. Tlu' utility of imvijrutioii luws, particularly in the colonics. The Econovnj, Stewart, 44(). 2. The law as to importation of spirits of turpentine under 33 Geo. 3, e. f)!), s. 14 — importers made owners under that statute, and British suhjeets, resident abroad, cannot import under it. The Nancy, ihltl, 49. 3. As to 27 Geo. 3, c. 27, free port act. None but the enumerated goods can be imported. Not suspended by war with Spain by the Order in Council, 23rd Sept., 1803. Non-enumerated articles only forfeited, not the vessel and the enumerated articles. 2'Ae Nueatra Senora del Carmen, ibid, 83. 4. Clearing out to Boston ; entering, trading and clearing out from thence to Halifax, is importation from Boston. The Union, ibid, m. 5. To avoid the embargo of the American government, no excuse for entering Halifax. The Patty, ibid, 299. 6. Certificate of probable cause of seizure must be granted upon facts appearing in the cause, not by subsequent affidavits, under 4th Geo. 3, c. 15, s. 46. The Fame, ibid, 112. 7. Putting into Philadelphia in distress, without landing or enter- ing a cargo, not an importation from thence. Touching at Cork for a convoy, and at Madeira, no deviation from a license from Bristol to St. Domingo. The Active, ibid, 109. 8. Oti'ences when to be tried. 49 Geo. 3, c. 107. Aliens acting as merchants in the colonies. The Providence, ibid, 186. 9. Change of master not indorsed on the register, vessel liable to forfeiture. The Friends Adventure, ibid, 200. 10. Importation to avoid the American embargo, no excuse for importing into Nova Scotia. The Dart, ibid, 301. It must be noted that the Navigation Laws have long since been repealed, and the cases decided thereunder have now no practical value. NAVY. 1. Vice-Admiralty Courts have jurisdiction in all cases of breach of the regulations and instructions relating to Her Majesty's navy at sea (26 Vict. c. 24, s. 11). This Act was, however, repealed by the Colonial Courts of Admiralty Act, 1890, ante, p. 387. See sec. 2, sub-sec. 3, of the latter Act as to present jurisdiction respecting the navy. the colonics. ic under 83 .statute, and er it. The enunierat('(l 'pain by the articles only The Niiestnt clearing out The Union, nt, no excus«e jninted upon ts, under 4th ling or enter- ; at Cork for from Bristol Uiens acting 56. jssel liable to excuse for ig since been no practical ses of breach ijesty's navy repealed by 87. See sec. )n respecting DU; KST. NECE^^SAIIIKS. 1. The K., a small vessel owned in New Brunswick, being much out of repair win n in Nova Scotia, and her master having neither money nor cred t, t!»e plaintitf agreed to furnish supplies, which werc! accej)ted by the workmen in payment of their wages, and the reipiired repairsj were thus ett'ected. Subsequently not having been paid, he arrested the vessel for neces.saries supplied, no owner being domiciled within the provinte. Hrld, That he was entitled to recover the amount of his claim. The Emma, Young, 'J82. 2. An agent for a foreign vessel made advances and disburse- ments for her use in account with her owner. The vessel atter- wurds sailed on her voyage, but was brought back in i) wrecked state to the port of departure. Held, That the agent cou', ! not then treat his claim as one for necessaries, under the Vice- Admiralty Courts Act, 1868. The City of Manitowoc, Cook, 178. 8. When necessaries are supplied under circumstances which show that credit was given to the owner exclusively, the nuister is not liable. Smith v. Irwin, o (,'an. L. T. 578. For present jurisdiction as to necessaries, see 3 & 4 Vict. c. 60, s. 6, ante, p. 816 ; and 54 & 55 Vict. c. 27, s. 2, sub-sec. 2, ante, p. 387. NELSON (CHIEF JUSTICE). 1. His opinion, sitting in the Circuit Court of the United States, respecting compulsory pilotage. The China, 2 Stuart, 231 n. 031 See Desuetude. NON-USER. NOVA SCOTIA. 1. Opinion of Sir William Young, Chief Justice, sitting as judge in the Vice-Admiralty Court of Nova Scotia at Halifax, relating to the {[uestion of jurisdiction over a contract for wages different from the ordimiry mariner's contract. The City of Petersburg, 2 Stuart, 343 ; s. c. Y^oung, 1. 2. Opinion of the same respecting compulsory pilotage, and as to the jurisdiction of the Court of Vice- Admiralty ov ir a vessel in- jured by a collision in Halifax harbor, within the body of a county. The Wavelet, ibid, 356 ; Y'oung, 34. 3. Opinion of the same as to the jurisdiction in case of damage done to a wharf by a ship. The Chase, ibid, 361 ; Young, 113. ii'i'2 DKillsT. ( Xnl'ii Sfutiii,) 4. Opinion nf the same tiiat tlic portn of the Dominion of Canada art' to l)f ('oM.siflcrcd " liomo ports " in relation to each otlier, and a Itnttoinry l»ond ;,'iven on a Canadian vessel in a C'atnidian i)ort n<>l r'uforceahle. The T/im; ^/Wry^ ihiil, .'ITO ; Voimjr, 14!). :l !l See liciji'nlrttr ; I'l'ijiiiii OATHS. OFFKNCI-X 1. For autliority in Commission of .Iiidge to try oHeiiees eoni- mitted within the jurisdiction of the Admiralty, see 1 Stuart, 880. 2. All persons eharged in any eolony with oflences comnuttod on the .sea, may he dealt with in the same manner as if the otienee had heen committed on waters witliin the local jurisdiction of the Courts of the colony. 12 &, l'.\ Vict. c. !)(!, s. 1. See untr, The. Chmtpectb', p. liHH ; 2 Stuart, p. 2W. 3. The statute IH & 19 Vict. c. !)1, .s. 21, relates to ofl'ences on board British ship on hij;h .'^ea, hut nothing in that section shall interfere with 12 tt 13 Viet. c. !)(). 4. As to ollenees under "The Foreign Enlistment Act, 1870," see 33 it 34 Vict. c. 00. 2 Stuart, p. 280. See Fore'KjH Enlidmcni Act. See (/iiebi'c. ONTARIO. ONUS PROBANDI. 1. Where a ship at anchor is run down by another ves.sel under sail, the ojins probundi lies with the vessel under sail to show that the collision was not occasioned by any error or default on her part. The Miramichi, 1 Stuart, 240. 2. Where a vessel at anchor is run down by another, the onus lies on the latter to prove the collision arose from some cause which would exempt her from liability. The John ^funn, ibid, 206. 3. In case of collision the onus is, in the first instance, on the ])arty complaining. The Margaret, 2 Stuart, 10. See The Secret, ibid, 133. DKIKST MS II <>("( 'imad!! 'iiIht, and a inn port iii>l ()iTI(>N. Ehrdi iiini riu, nun dnlni riTlirmiH nil n/hrnni. Wlici't' il |i»rty lia. II'iK'cs coni- 'tuart, ;W(». )nimitted on ollenee had ft lie (.'onit» (-hempeuke, oflbnccs on ec'tiou xhall Aft, 1870," essel under ) show that )n her part. ■r, the onus ^ftuse wiiich ', 2m. nee, on the OUDKIIS IN (OrXCIL. ('a.«St((trn, i/titl, ll(i. 4. July l-Jtii, 1)^07. A qualified license to trade to St. Dondngo; and December 14th, 18()X, trade to St. Dondngo laid open. T/ic Heaver, ibid, 173. '). April '2(!th, lHOi>. Not revoked in con.se(|uence of the Duke i. 7. Novend)er Uth, 1807. Certificates of origin revoked by April 2. Thf. American, ibid, 28«i. 8. January 7th, 1807. Trading between enemy's ports. The Kcpresa, ibid, 202. 9. July ;}lst, 1810. Petition of Sir J. Warren to detain certain American vessels, ibid, IV27. 10. April 2Gth, 1800. Suspended by order June 2;}rd, 1812, conditionally. The condition not having been complied with, the first order is in full force again. 2'he George, ibid, 889. 11. April 8th, \HV2. Permission to import and export from Halifax to the United States wheat, etc.: October 13th, 1812, the same, notwithstanding hostilities with the United States. The Economy, ibid, 446. .*%-- ??': f'A:': 634 digp:st. (Order.i in CouncH.) 12. October 26th, 1812. Confirniiug Admiral Sawyers licenses. The Eeivardi ibid, 470. 13. April 26th, 1809. Prohibiting commerce with France; the principle of it considered and justified ; not a blockade properly speaking, but a defensive measure of another kind. The Orion, ibid, 497. 14. June 27th, 1832. Plstablishing rules of Court. 1 Stuart, 6. 15. November 20th 1835. The John and Mary, ibid, 64 ; The London, ibid, 140. K). August 23rd, 1883. As to rules of 1883. Cook, 372. 17. March 16th, 1893. Authorizing rules of 1893. See ante, p. 410, See Rides ; Regulations ; Table of Fees. OWNERS, 1. Ow:iers of vessels are not exempt from their it-gal responsi- bility, th'iugh their vessel was under the care and management of a pilot. The Cumberland, 1 Stuart, 75. 2. Change of the owner, by the sale of a ship at a Britisli port, does not determine a subsisting contract of seamen, and entitles tliem to wages 'oefore the termination of the voyage. The Scotia, ibid, 160. 3. The Court of Admiralty has authority to arrest a ship upon the application of the owner, in a case of possession, The Mary and Dorothy, ibid, 187. 4. Having a pilot on board, and acting in conformity with his directions, does not discharge the respCiisibility of the owners. The Lord John Russell ibid, 190. 5. But the owner of a ship is not responsible for damage done by his ship, occasioned solely by default of a branch pilot, employed by compulsion of law. The Lotus, 2 Stuart, 58. See cases : Th: Arabian, ibid, I'l ; The Alma, ibid ; The Anglo- Sitron, ibid, 117. 6. To entitle the owner of a ship, having by compulsion of law a pilot on board to the benefit of the exemption from liability for damage, the fault must be exclusively that of the pilot. Tin: Courier, 2 Stuart, 91, •DIGEST. 635 wver's HoenseH. 1 France ; the 'kade properly !. The Orion, t. 1 Stuart, 6. ibid,^i; Tly> )ok, 372. 193. See ante, it-gal responsl- management of a British port, n, and entitles :e. The Scotia, st a ship upon )n. The Mary )rniity with his ; owners. The an.age done hy pilot, employed d ; The Anglo- jlsion of law a )ni liability for le pilot, r/c {Owners.) 7. If a licensed pilot is on board a vessel, in order to exempt the owner froni liability for damage occasioned by collision, the omia jirobandi lies upon such owner to establish that the collision was occasioned solely by the negligence of the pilot. The Secret, ibid, 133. 8. The exemption from liability is not taken away from the owners of the danutgir.'^ vessel, though the master ha»'e the power of selection from amongst a number of pilots; and, though in consequence of such selection, the same pilot has in fact piloted the ship for many years. The Hibernian, ibid, 148. 9. A person may be considered as the owner of a vessel, though his name has never been inserted in the bill of sale or ship's register. The Anglo-Saxon, ibid, 117. See Pilot ; Possession, PASSENGER. 1. The relation of master and passenger produces certain duties of protection by the master anaUigous to the powers which tlie law vests in him as to all the persons on board his ship; any v,i!ful violation of which duties, to the personal injury of the passenger, entitles the latter to a remedy in the Admiralty, if arising on the high seas. The Friends, 1 Stuart, 118. 2. Unk s in case of necessity, the master cannot compel a pas- senger to keep watch, ibid, 120. 3. The master may restrain a passenger by force, but the cause must be urgent, and the manner reasonable and moderate, it >d, 122. 4. The authority of the master will always be supported by the Courts so long as it is exercised within its just limits. The Toronto, ibid, 179. 5. Dariages awarded against a master of a vessel for having, in a noment of ill-humor, attempted to deprive a cabin passenger of his right to the use of the (piarter deck and cabin, and to separate him from the society of his fellow-passengers, ibid, 180. fi. For salvage by a passenger, see The Stella Marie, I'^oung, IG. See Admiralty; Assault; Jurisdiction; Damages to Person ; Sal- vage ; Vice- Admiralty, PATRONE. 1. Import of the term in the Mediterranean States. The Scotia, 1 Stuart, 166. Gnu DK^KST. PAYMENT. Of awards to salvors, directions by Court. The Runeherg, Young, 42. PENALTY. 1. If any Act be prohibited under a penalty, a contract to do it is void. The Lady Seatoii, 1 Htuart, 26o. 2. For violation of revenue laws. The Minnie, Young, 65. 3. Upon breach of revenue laws, suit for penalty. The Queen v. Flint, Young, 280. See r erjurij. PERJURY 1. Any person who shall wilfully swear falsely in any proceedinir before the registrar or other person authorized to administer oath- in any Vice-Admiralty Court, shall be deemed guilty of perjury, and sh. be liable to all the penalties attaching to corrupt perjury. 24 Vict. c. 10, s. 26, ante, p. 353. PILOT. 1. The mode, tlie time, and the place of bringing the vessel to an anchor 's within the peculiar province of the pilot who is in charge. The Lotus, 2 Stuart, 58. 2. Where a pilot is on board the ship he must 'te actually on deck and in charge to relieve the owners of their responsibility. The Courier, 2 Stuart, 9L See The Gordon, ibid, 198. 3. The pilot in charge of a ship is solely responsible for getting the ship under weigh in improper circumstances. The Anrjlo- Saxon, ibid, 117. 4. T?V! duty of the pilot U to attend to the navigation of the S'liip, and the master and crew to keep a good lookout. The Secret, ibid, 133. 5. The owner of a ship not liable in damages for a collision occa- sioned by the fault of a pilot, where there is a penalty attached to a refusal to take such pilot. The Hibernian, ibid, 148. 6. A pilot is a mariner, and as such may sue for his pilotage in the Vice-Admiralty Court. See 2 Will. 4, c. 51 ; 1 Stuart, 4. 7. A pilot who has the steering of a ship is liable to an action for an injury done by his personal misconduct, although a superior officer be on board. The Sophia, 1 Stuart, 96. ie Buneberg, tract to do it ing, 65. The Q((ee)i ly procecclliiLr linister oath« y of perjury, rupt perjury. e vessel to an is in charge. i actually on esponsihilitv. 5 for getting The Anfflo- ation of the The Secret, llision occa- ttached to a pilotage in art, 4. an action 1 a superior .DIGKST. (Pllof.) 8. Damages occasioned to the ship by the misconduct of the pilot may be set off against his claim for pilotage. Ibid. y. In cases of pilotage, where there has been a previous judgment of the Trinity House upon the same cause of demand, the Court has no jurisdiction. The Phvcbe, ibid, 59. 10. Persons acting as pilots are not to be remunerated as .salvors, but they may become entitled to extra pilotage, in the nature of salvage, for extraordinary services rendered by them. The Adven- turer, 1 Stuart, 101. 11. The jurisdiction of the Court not ousted in relation to claims of this nature by the provisional statute 45 Geo. 3, c. 12, s. 12. ibid. 12. Owners of vessels are not exempt from their legal responsi- bility, though their vessel was under care and control of a pilot. The Cumberland, ibid, 75. 13. It is tho exclusive duty of pilots in charge to direct the time and manner of bringing a ves.sel to anchor. The Lord John Russell, ibid, 190. 14. Having a pilot on board, and acting in conformity with his directions, does not discharge responsibility of owner. The Creole, ibid, 199. See Pilotage ; Compulsory Pilotage. 15. A vessel to blame for collision in Halifax harbor, in charge of a pilot. Held, No ground of exemption from liability, pilotage not being compulsory. The Wavelet, Young, 34. See Collision. PILOTAGE. 1. Vice-Admiralty Courts have jurisdiction in respect of pilotage (26 Vict. c. 24, s. 10). This Act is now repealed by Colonial Courts of Admiralty Act, 1890; but the Court has the same jurisdiction over pilotage as the Higu Court of Admiralty. Under the Mer- chant Shipping Act, 1854, s. 2, "seaman" includes pilot. 2. An indemnity in the nature of pilotage, based upon the Pilot- age Act, 1873 (Can.) (36 Vict. c. 54), awarded to a pilot taken to sea without his consent. The Farewell, Cook, 282. 3. The Dominion Parliament may confer on the Vice-Admiralty Courts jurisdiction in any matter of shipping and navigation within the territorial limits of the Dominion, ibid. t;3T CSS W" DIGEST. {J'ilota!/!'.) 4. Where an Act of the Dominion Parliament is in part repug- nant to an Imperial statute, effect will be given to its enactments in so far as they agree with those of the Imperial statute, ibid. PILOT ACTS. 1. The English cases, by which the owners are exempted from responsibility, where the fault is solely and exclusively that of the pilot, iKjt shared in by the master or crow, are based upon the special [)rovisions of the English Pilotage Acts. The Cnmberkmd, 1 Stuart, HI, n. 2. A construction is given in this case to the Lower Canada Pilot Act (45 Geo. 3, c. 12) and the Liverpool Pilot Act. ibid. 8. As to construction of Pennsylvania Pilot Act, see 1 Stuart, 199 ; also for provisions of General Pilot Act of England (6 Geo. 4, c. 125), see 1 Stuart, 82. 4. The whole of this Act is repealed by the Merchant Shippin. See Pritchard's Digest for Lord Stowell's judgments as to the nature of this jurisdiction prior to the latter Act. 5. By the Vice- Admiralty Courts Act, 1863, an Admiralty Court has jurisdiction over claims between owners, where the ship is regis- tered within the possession for which the Court is established. The Edward Barrow, Cook, 212. 6. The Dominion of Canada is not a possession within the mean- ing of the Act, so as to enable an Aumiralty Court for one part of it to entertain jurisdiction over a vessel registered in another part for the enforcement of such claims, ibid. But see now The Admiralty Act, 1891, s. 4. 7. J. H., when building a small vessel, was furnished with sup- plies therefor by D., who put into the vessel, upon the whole, a larger sum than J. H. did. It was afterwards agreed that D. should own half the vessel, and in addition to this he took a mort- gage from J. H. previous to the completion of the registry of the vessel. It was filed at the Custom House, but could not be regis- tered, as there was no registry of the vessel. On her completion the vessel was registered in the name of J. H., and no mention was made of D. as part owner. D. subsequently sold her to one C, who registered as owner under his bill of sale, and then J. H. took pro- ceedings against bot!i to regain possession. Held, That the Court could not cancel the registries, nor order a sale, as the parties had appliec' to the wrong Court ; but J. H. and D. were strongly advised that thoy should have an account taken to ascertain the amounts respectively due them, and should sell the vessel to the best advan- tage. The (F. A'. Wier, Young, 145. Since the Act of 181>1, the Court has amj)le jurisdiction to settle all disputes. •cs i)f pos-ses- lUy (li.^pljicod t'c-Aflinimlty lip registered touching the 1 ship. This ict. c. 24, s. 8, rits as to the niralty Court ship is regis- ilished. The lin the incaii- r one part of another part led with sup- the whole, a •eed that D. took a niort- gistry of tlie not be regis- r completion nieution was ) one C, who H. took pro- It the Court parties had ngly advised the amounts best ad van - tion to settle DKiKST. riJACTICE. 1. The ])ractice to be observed in suits and proceedings in the Courts of Vice-Admiralty abroad is governed l)y certain rules and regulations established by Order in Council under '1 Will. 4, c. ol. The practice is now governed i)y the rules of lrotest made by the master, containing a narrative of facts when they are fresh in his memory, should be produced. The Electric, ibid, .'J.'iS. lo. In courts of civil law the parties themselves have strictly no authority over the cause after their regular appearance by an attor- ney or jiroctor. The Thetk, ibid, 365. QQ t;4l 642 DKiKST. (Pracdre.) 14. The attorney or proctor is so fur rejrarded as the dominua litis that no proceeding can he taken except by him, or by his written consent, until a final decree or revocation of liis authority ibid. Tlie practice is now governed by the rules of 18!l.'i ante, j). 413. PRESUMPTION. 1. Where a slii]) at anchor is run down by another ves.«el under sail, the presumption is that the latter is in fault. The Miramichi, 1 Stuart, li4f). 2. If the protest be not produced salvors are entitled to the inference that it is withheld because it would be too favorable tu them. Th,' Elecirie, ibid, 383. 3. It is the duty of the jjerson in /liarge of each ship to render to till other ship such assistance as may be practicable and neces- sary ; and .11 ci'.se he fail so to do, aii6. See The John and Martj, 1 Stuart, 64 ; T/tc London, ibid, 140 ^^^ 1)1(4 EST 643 (lorn Inns litis y his written rity ibid. ' ('iivlrtv, ibid, 'Wl. H. Prizes detained npoii the declaration of war hy the United Stato.s, and under the Order in Council, July 81st, 1X12, and ulti- mately condemned to the Kinj^, jni-r coroiui', as having heeii taken before the order for reprisals, could not hi' sold or hailed without an authority from the King, unless in a peri.shal)le state. Measures taken for their preservation. Petition of Sir J(»hn Warren. ihid, :}27. 9. Proceedings respecting the agents appointed hy the Crown to receive them. Snook's Petition, ibid, 427. 10. Prizes taken before the order for rei)risals, October 18th, 1812, not given to the captor.s by the order for distribution. Tin Mnlvohn, ibid, 379. 11. Prize takin under commi-ssion from the governor of a jiro- vince, without a warrant from the Admiralty, not given to the eai»tors by the proclamation for distribution. The Little Joe, ibid, 882. See Practice, 5. PROBATORY TERM. PROCTOR. 1. A settlement without the concurrence or knowledge of the promovent's proctor does not bar the claim for costs ; and the Court will inquire whether the arrangement was or was not reasonable and just, and relieve the proctor if it were not. The Thetis, 1 Stuart, 863. See Practice, 14. 2. As to how far the Court will interfere on a complaint made by the registrar against proctors for non-paymejit of his fees, which thoy have received from tlieir clients and not paid over to him. £".(• parte Drolet, 2 Stuart, 1. 3. A premature action in some eases exposes the j)roctor ac- quainted with the facts of the case to the animadversion of the Court for the impropriety of creating unnecessary litigation. Th. British Lion, ibid, 114. DKJKST. 043 'crs Imvo ii(» |tn'-ciii|)ti<)ii liir (l('t('i)c(! (»t' y the United <]L', iiiid iilti- ,' Ihm'ii tuk<'ii ailcil witlioiit f. Measure- nrriii. ihi'l, :527. the CVowii to )ctol)er 18tli, bution. TIk nor of a pro- given to the e, ibhi, 382. viedge of tlie and the Court ot reasfonable ?tuart, oOS. nplaint niad( is fees, which over to him. e j)roctor ac- ersion of the gation. The PROOF. See Eridnirr ; Oniin I'liibundi ; Vnt Major. See fill Union, lOS. IMforKKTV. 1. Condeninatinn of enetuy's property. The Venuii, Stewart, 12. 2. Forfeiture of property conneetid with eneiny'.s property. Thr Ifrrkiiiiir, !l>iil, 17. ;5. American |)roperty, coiieealed as Spanish in the slave trade, condemned. 'The Merced, ibid, 20"). PROTEST. 1. Tiie production of the protest is necessary in all eases, whether 4)f collision or salvage, but more particularly so in cases of salvage. The Electric, 1 Stuart, 33.'}. pRoxnx 1. In order to prevent proctors from proceeding in causes, on instructions from parties not having a legal persomv standi to prose- cute a cause, the Court may recpiire the production of proxies. The Dunifrirsshirc, 1 Stuart, 24'). irme Proctor ; Practice. 2. For a report of the law officers of the Crown in Canada on this subject, ibid, 247, note. (H^EBEC. For geographical limits of the ancient government of Quebec; for the division into Upper and Lower Canada; their re-union into the Province of Canada ; and the division of the latter into the Provinces of Ontario and Quebec, see 2 Stuart, 381. See Tabic of Fees. RAFTS. Rules as to the navigating and anchoring of rafts in any navi- gable river in Canada (31 Vict. c. 58, s. 2), now R. S. C. c. 79, Art. 27 ; ante, p. 380. RANSOM. 1. Where it is justifiable under tiie Prize Act. The Fanny, Stewart, 554. 2. The Act 22 Geo. 3, c. 25, and the clauses in the Prize Acts relating to ransom, extend only to vessels captured in war, not to those seized for other causes. The Patriot, ibid, 350. 64r, DKiKST. ii KKASONAHM-: AND IM{()MAHIJ': CAUSK. 1. It is (li'tiiu'd iiM "such a stiit«> of facts as would lead a man i)f ordinary caution and prudence to liclicvc and entertain an honest and strong su>|)icion that th«> ]H'rson is guilty." T/ic Atuhm, (V)ok. 2:i4. UKCKIIT IN FULL. 1. A receipt in t'ldl is not taken as conclusive in the Court, hut is opi-n to ex|)laiuUiou, an. 2. When receipts and discharges of claims are given hy the crew of a vessel, they are not to he taken in thc^ Admiralty as conelnsive, and where the settlements and receipts are made under undue and oppressive iuHuences, and without free consent, they ouglit not to har ail cfpiitahle claim for compensation lieyund what the crew have received. The Jauf, ibid, 'i-lO. .">. Ill actions hy seamen for wages the Court will not, of course, sanction settlements nuule with parties out of Court unless their proctors are consulted and approve them. The Thrtix, ihiil, ;}B'?. See J'roclitr ; I'niclice. K1<:CK1VEK OF WRECKS. His right to intervene in a case of derelict. T/if W. G. J'litnam, Young, 271. UECOUPMKNT. 1. 'riie mate of a vessel is chargeahle for the value of articles lost hy his inattention, and the amount may he deducted from his wages. T/ir PujnHi'tiH, 1 Stmirt, *J4. 2. Damages occasioned to the ship hy the mismanagement of the pilot may be set ott' against his claim for j)ilotage. The Sophia, lbi(l,U(\.' K E( ; I SIR A RAND M E RCII A N TS. 1. Cases referred to in 1 Stuart: The Lord John Jiimi II, 1\)><^\ The John Mail n, 2(>(j ; The Crescent, '1\)\\; The Jtoalin Castle, .')07. 2. Cases rei'erred to in Cook : The Frank; 105 ; The Atahtya, 260; The Barcelona, 2[)d; The Celeste, IG; The Normanton, 122. .'). See note to Ebjsia A., ante, p. 42. 4. As to percentage entitled to, upon gross amount of all the money paid into the registry. The Hiram, Stewart, 58;5. ."). As to objections to report of referee. The James Fraser, oung, 160. SK. ad a inati of ill an huiic'Ht ('(.(. k, 2;m. If Court, 1)11 1 iK'c may hv. I»y tlic crew IS coiirlnsivc, r ii!i and »ii;,'iit not to ml the crow i)t, of ('()ur!hin, Russdl, iy«; Castle, 807. ^he Atahnjd, iKinton, 122. it of all the men Fraser, DKiKST. Ki:(iISTIl.\TI()N. Of lnort^,'a^,'e^< and hill of ^4ule, Hce The. H'. E. W'ier, Vouu;,', 1 1.3. kivoim:nin(j of dkciikk. 1. The .V. li. IIiiiiu; haviiij; heeii |)ieked up derelict liy the (,'. /*. Sltenvofxl, was, after much risk and exertion, hroii^hl into iM)rt. The values of vessel and ear;;o were appraised hy competent |H'r- souH at 811,001), and this was uc(|uiesce(l in hy the proctors of hotli parties. As the services were hi;;hly meritorious, one-half, !?4,.')0(), was uwardcfl us salva^re. Suhse(|uently the proctors fiu- the owners of the vessel ohtailied u rule to set ii«ide the jud;?liient and awiinl of .salvage, on the ground that their aci|uiescence in the appraise- iiient had heon ^ive!i under a misapprehension of the facts and oi' tlie purpose to which it was to have been a|)plied, The appraise- ment had not heen made at the instance of the Court. The owners havinj; refused to pay the amount awanh'd, thereby renderini^ a sale necessary, and it clearly appearinjj that a sum far less than the appraisenu'iit would be realized at such sale, and that therefore the award woulil be excessive and unjust, the Court set aside its judg- ment and onlered a sale to be had. At the sale the vessel and ear^o brought only S4,12M, instead of S!>,000, as had been appraised. Jle/il, That the decree should be re-opened, and that the Court should take the 84,128 as the basis of salvage award, the same pro- portion being awanled to the salvors a.s before, with costs. The S. n. Hume, Young, 22.S. 2. riie steamer Z., bound from Antwerp to Philadelphia, fell in with the li. A., abandoned, and in twenty-four hours, with little difHeulty, towi'd lujr into llalifa.\. The Z. was valued at .S27o,00() for vessel and cargo, the K. A. at 8.S,.'}00. Held, That 82,800 should be awarded. Subsecpiently it was discovered that the apprai.sement had been misHuderstood, and that it should have been coiuUrued so as to make the total value of the \i. ,\. oidy 87,')00. Ile/d, That although the counsel for the li. A. had accjuieseed in the appraise- ment and decree until the error was discovered, yet that they were not shut out from ap|)lying for relief, that the decree should be re- opened and an award made on the basis of 87,500, the same pro- portion being allowed to the salvors. Recent cases upon the ([uestion of re-opening decrees cited, and the rule indicated. The Roijal At h, Vounj RELEASE. 047 200. 1. Witnesses examined under a release. The Lord John Russell, Stuart, 194. 648 DIGEST. i I h RES JUDICATA. 1. Drl'ciici' griiiiidod on a vck jiiilividn iiiu.>«l he specially })leaik'il. The A;/iicK, ) Stuart, 5o. 2. Wlicrc there had hv-eii a previous judgment in the Trinity House upon (he same cause of demand, the Court declined to exer- cise jurisdiction. Tlw J'/m/ir, ibiil, .V.>. .'>. A Court of CO upeteni juri.-diction having decided the facts which wen dii'ectly in issue, tiie party is esto})pe(l from trying the .same I'acts again. ibin]y to pn- 1 order tluit DKJKST. (li'lliS (if Ihv S,'l.) either vessel may he able ii» getTuiKler weigh without risk of ('ollisioii with the otlier. ibid. o. It is a rule universally received among seamen, and to be found in books on seamanship, that, when there is doul)t, the vessel ■ )n the port taek is to luar up or iieave about for the vessel on the starboard taek. 77/'' yi'l-om ]'i//a(/f\ Idiil, 1")7. See «mf>', p. .S72, for present •'iiU's of navigation. 4. When a ship is in stays, or in the act of going about, she be- comes for the time unmanageable, and in this ease it is the duty of every ship that is near her to give sutHcient room. Tlir Leuiiidax, ;/>/. 7. But it is not necessary that because two vessels are proceeding in (jpj)osite direciioii.>, tliere being plenty of room, the one vessel .-hould cross the course of the other in order to pass Ijer on the larlnv.ird. Ibid. n. It is the duty of every vessel sieeing another at anchor, whether iii a proper or improper j)lace, and whether properly or iniprojierly anchored, to avoid, if practicable and consistent with her own safety, any collision. Tbr Jti/m Miiun, ibid, 2(i(), note. y. One who has the management of a ship is not allowed to fol- low that rule to the injury of the vessel of another, when he could avoid the injury by a <■ Sni.) one on the port tack shall give way, and the other shall hold hor course, unless by so doing she would cause unnecessary risk to the other. The Mury Bnnnaiyiie, ibid, 353. 12. Nor is the other bound to obey the rule, if by so doing she would run into unavoidable or imminent danger ; but if there is no such danger, the one on the starboard tack is entitled to the l)enefit of the rule. ibid. 13. The law imposes on a vessel having the wind free the obliga- tion of taking [jropcr measures to get out of the way of a vessel close-hauled. Tin' Anne Johnnne, 2 Stuart, 43. 14. Where tvo vessels are approaching each other on opposite tacks, each being close-hauled, the vessel on the starboaril tack should keep on her course, and the ves.sel on the port tack should keep off. 7Vte Libertij, Ibid, 102. 15. The only exception to the rule is, that if the vessel on the l)ort tack is so much to windward that, in case both persist, the ves.sel on the starboard tack will strike her to leeward and abaft the beam, then the ves.sel on the starboard tack must give way, as she can do it more easily than the other. Danns Seiumni)* Friind (London ed. 18(54), p. 5!). 1(). The same rules of navigation, and the same precautions f )r avoiiling collisions and other accidents, as aie ado])tcd in the United Kingdom and other countries, are also adopteil in respect of vessels navigating Canadian waters by :U Vict. c. 5-S, now K. S, C. c. 7i). anU\ p 372. SALE. 1. Sale (if ship has not tiu; ert'ect of discharging seamen from their engagement. The Scotltt, 1 Stuart, Kit). 2. Of a vessel, during time of war. i)roved fraudulent. Tin- CiHiitava, Stewart, 541. SALVAGE. 1. Persons acting as pilots are not to be remunerated as salvors. The Adccniurer, 1 Stuart, 101. 2. Under extraordimvry circumstances of peril or exertion, pilots may become entitled to an extrsi pilotage, as for a service in the miture of a salvage service, ibid. r>TGEST. (iSah-af/c.) 3. Such extra pilotage (lecr(»cd to a braiK'h pilot ibr the rivor St. Lawrence for services by him rendered to a vessel which was stranded at Mille Vuches, in the river St. Lawrence, on her voyage to Quebec, ibid. 4. Li a case of wreck in the river St. Lawrence (Riniouski), the Court has jurisdiction of salvage. The lioi/al Wi/linm, 1 Stuart, 107. o. In settling the (piestion of salvage, the value of the property a'ld the nature of the salvage service are both to be considered. Ibid. 0. The circumstances of the case examined, and the service de- clared to be a salvage service, and not a mere locdtio nperix, though an agreement u|)(!n land was had between the parlies in relation to such service, ibid. 7. Salvors have a right to retain the goods saved until the amount of the salvage be adjusted and tendered to them, ibid, 111. ><. Compensation decreed to seamen ;>iit of the proceeds of the material saved from the wreck by their exertions. Thr Silhrij, 1 Stuart, 1S2. 9. Seamen, while acting in the line of their strict duty, cannot entitle themselves to salvage ; but extraordinary events nuiy occur, in which their connection with the ship may be dissolved dr facto, or by operation of law, or they nmy exceed their i)roper duty, in which cases they may be permitted to claim as salvors. Tlir liobr-t and Anne, 1 Stuart, 258. 10. Whether, when a merchant ship is abandoned at sea xinr apr revertrndi nut recuperandi, in conseijuence of damage received and the state of the elements, such abandonment taking place bona fidr and by order of the master, for the purpose of saving life, the con- tract (utered into by the mariners is, by such circumstances, entirely put an eiul to; or, whether it is merely interrupted, and capable, by the occurrence of any and what circumstances, of Iteing again called into force. TIh- Florence (in note to liobeii itdr of ship- wreck, the .same was set aside and a qiiuiifiim iiimiit alhnved. The Amrrira, 2 Stuart. 214. 23. The ship Scdt.iifiKitl, meeting with tempestuous weather, !<»■- came waterlogged and complet(dy disabled, the provisions, compasses and charts being washed away. In this condition she was found by the /*'. If. Urou'ii, a fishing schooner, which, in response to signals (if distress, came alongside and took oH' the captain and crew of the ship, putting nine of her own men on board in their place. The captain and crew of the ship never attemjited to rejoin her again, but remained on board the schcMjner until port was reached. The heavy weather still continuing, the .schooner was unable to manage the shij), and the following day, on another schooner, the Jjaar<(, coming near, they hailed one another, and, after consultation, it was decided that each sehooni-r should send .seven men on board the ship, and that then both should take her in tow. After great exertion on the part of both (•rews, the ship was on the next day brought into port. The »'vid«nce was not conclusive as to the inten- tion of the master of the Srol.'^ivood to iinally abandon her, but the salvage .services rendered i)eing highly meritorious, this was not considered a point of much importance. ffcld, That two-fifths of the appraised value of ship and cargo should be awarded as sal- vage, to be divided eijually between the two schooners, the owners of the schooners to receive one half tlu' amount falliuL' to each. Tl le cases review ed as to tlu; rate of .salvage in causes of derelict and the vitiating o'" insurance by deviation to save pntperty. The tScotsivood, Young, 2-"). 2-1. This vessel, having been abandoned at sea whil(! on a voyage from (Quebec to London, was found in a watea'-logged condition by the A. U*. tSiiigleton off the coast of Newfoundland. The nuvte and lour seamen of the latter ve.P [Stih'Ojic) liurdsliip. The value of the dereliet wiis apprait^ed at 8'?0,()()0. Urlil, That the !-iini of SfS.OOO nhoiihl be awarded as salvage, of which the mate received $1,000, and the four other salvors SlOO each, $'),200 being allowed to the owners of the ship. The Onitcr- bunj, Young, oT. 25. A ves.sel, while passing down the Gtdf of St. Lawrence, struck on a reef, lost her rudder, and became utterly uninaiuigeable. In this condition she was found by the salvors, who, responding tu signals of distress, took the crew off and landed them in Sydney, Cape Hreton, then returned to the HajiHn, and, after considerable exertion, brought her into tlie same port. The net proceeds of ship, stores and cargo were 87,10"). Held, That the salving schooner should receive 8r)00, and the ten seamen on board her $200 each. Directions given as to proper method of executing appraisement of ship and cargo. '1 he Reijinu, Young, 107. '2<>. A schooner found by tishermen floating on her beam ends and entirely deserted was, after considerable exerti(»n, re(|uiring the united efforts of thirty-two men, successfully brought into harlmr. TIh! sale of ship and cargo realized 8!>")4.(>0. Held, That the .;el was discovered by the keeper of a lighthouse, who hailed a stean)-tug and (lirected her to the vessel. The steam-tug then brought her into port. The value of vessel and cargo was agreed upon at ?2,2oO. Held, That the steam-tug should receive 8450, and the lighthouse-keeper $25. I'he Aj'toii, Young, I'M'h 28. A fishing schooner, while returning from the grounds with a full cargo, fell in with a derelict, and taking her in tow, brought her into i)ort, renuiiiiing in pos.-^ession uniil relieved by an ofHcer of the Court. A delay of twelve days was thus occasioned on her home voyage. Jli[d, That one-third the value of derelict and cargt should be awarded as .salvage. The Tickler, Young, 1(56. 29. The .ship was found derelict by the mail steamship Ahi/nstnia, and the third officer, with, fifteen of the steamer's crew, after two days' extrome exertion and considerable personal risk, succeeded in Itringing her safely into the port of Halifax. Appraised value of ship and cargo, «? 10 1,03(5 ; 8:>0,000 awarded as salvage. The B. liobinmn. Young, 1(58. DKIHST. tJ55 at 8:30,000. salvage, of salvor.s 8.")00 The Canter- rcDce, struck agcuble. In ponding tn 11 in Sydney, considerable ceeds of'shij), iig schooner V S200 each. )raisenient of r lieani ends re(juiring tlu' into harix)!-. M. That the r labor, and >'. r. Cooiuui, keeper of a to tlie vessel. I lie of vessel lie steam-tug Th,' Aftoii, miuh with a Low, brought an officer of 3ue(l on lier lerelict and iiig, 1<)(). p Abi/.i.iinUi, w, after two Hieceedi'd in sed value of ?e. The R. (Solnifff.) 150. The steamer Xnjth-n, with a valuable cargo, bound from Philadelphia to Liverpool, fell in with the J(lo doing. Tliere was no special merit in the services rendered. ILId, That the .salvors should receive one-half the appraised value of ship and cargo, all costs and charges to be deducted from the other half, and that the owners of the steamer should take )ne-lialf of the salvage awarded. The rule as to salvage on derlict stated and cases re- viewed. The Ida Barton, Young, 240. 31. The steamer Zeahind, bound from Antwerp to Philadelphia, fell in with the Uoyal Arch, abandoned, and in twenty hours, with l)ut little difficulty, towed her into Halifax. The Zealand was valued at S27">,000 for vessel and cargo, and the KoyttI Arch at $8,;}00. Held, That $2,S00 should be awarded. The' Royal ArcJi, Young, 200. 32. The maximum charge for salvage award is a moiety of the res saved, and Wrecking Companies are governed by the law of salvage the .same as ordinary vessels. The Tnternational Wreeklntj, etc., Co. v. Lobb, 11 O. R. 40M ; s. c. 22 Can. L. J. 106. 33. The W. G. i'utnam, bounci from (^ueljcc to Marseilles, was abandoned off the coast of Cape Breton, being completely water- logged. Her crew reached land tlu- >ame day. tuid the day follow- ing a small steamer, manned by the salvors, went out in .search of the derelict. They found her about forty miles from North Sydney, and, with little difficulty, towed her into that port. The value of ship, cai'g(; and freight was estimated by agreenu-nt at S2(i,()()(l, and th^ value of the .salving stea.ner was alleged to l)e 84,000. Held, That the salvors should receive 82,o00. The receiver of wrecks at Sydney put in a claim for the pos.session of the ship as against the .•'». Tlic siilvDi-s uf u ilcri'lict >lii|i >l)()iil(l, ill tiic first iii>liiiic<'. j.nv(! notice to tlic proctor ii.r the A(liiiir;ilty, ulio will turtliwitli extract a wurnuit. Attialvors sill. nlrj move for leave to intervene. If the ca>e he one of only trivial iniiiortanee, the Court will then direct the liliii " hy the Kiiloof \M:],,nift\ p. 41.'). ;>7. A vessel, while on a coa^tiiiL; voyaiic, put into harbor for tin night on account of heavy weather. Duriiig the night the wind increased and the vessel ilragged her anchors until she struck on the rocks and was placed in •■ii-cuuistaiwes of considerahlc danger. At thi.- point the claimants tendered their services, and after twi> hours' lahor suc<'eeded in rescuing her from her perilous position and .>() should he i-ijually tlivided among the five claimants. Tlif Sllrer Bdl, Voung, 43. .')'S. The hrigantine Mariiin, on a voyage from Boston to Sydnev. encountered a heavv gale, which carrii'd awav her riirgiuir and rendered her almost unmanageahle, in which condition she drifteil along the coast of Nova Scotia for sevi'ral days, until fallen in with by the steamship Conniitrce, which took her in tow, and aftt'r eight or nine hours brought her into Halifax harbor. There was soiiu evidence of an oifer of $'){){) having been made for the service- rendered, but Ui) actual tender in due form was proved. The value of the MurliKi was appraised at 8<1,()()0. Ifrhl, That the sum !). The schoon»'r MKrijurci, when in a helpless condition, was fallen in with by the Alj'ral Wlui/rn, and the captain of the lattei lust llisliilic*'. vill lurtliwitli wiinaiit, the •!l»(' lie iiiic ot tllC lililirr of IT inoniciit, il IX'', and ;>r(i i| (•|)l('.SC|lt('(l liv ^iilidati'iii will U' wai vMiit 1)1- lie .'.iiiiiiralty , (iiifi\ p. 41.'!. Iiarhor ior tin L'lit tlif wind slic .struck I'iloiis po.sitioii !•(' was t'xct'cd- l)oard and tlif r claim to tin- paid lilt' sum to lu' with tin pially divided on to Sydney. ■ rij^jrinj,' und ion . 1. The vaini at the .-iiiin (il .'ondition, w:i- 1 of the hittei DKJK.ST. ve.2. The Switzn-bntd, ves.sel, 8;52r),000; car- go, $2.')0,000. Hrhi That «20,00() should be awar '.,'d as salvage, of which $12,000 should go to the owners, §1,.")00 to the master, RK 657 658 DHJKST iiiul ihc Itjilaiicc aiiKin^f tlic crow, acconliiig to tlioir ratings. Tlu- inoderii dt'ci.-ioiis cilt'd and rovit^wed. Tlir AiiijUHtr Andre, Young, 201. 42. 'Pile Ifinmni Liidwifj, on a voyage from Now York to Ant- werp, broke licr shaft when two chiya out, and the ('idlforniu, another steamer, coming up, an agreement was entered into hy the master of the disahh'd steamer to he towed into Halifax, and to |)ay for the .-ervice such amount as shouhl be setthd upon l)y the Admiralty Court at that port. This was accomplished within twenty-four hours without any mishap except the breaking of two hawsers. Htid, That the service rendered was not a mere towage, but a salvage service, and SI 0,000 was awarded therefor, of which ^7,000 went to the owners, and 87")0 t(» the nujster, the balance to the crew, according to their ratings. The law as to deviation for the saving (jf property reviewed. The Herman Lndwif/, Young, 211. 48. The Inirque Murthit, having run ashore near the mouth of Halifax harbor, was assisted by three neighboring fishermen in getting off again. Substantial service, extending over three days, was rendered. The salvors being, as they considered, imidequately remunerated, applied to the C'ourt, and it was Ilihl, That the amount was not sufficient, and that the sum of S-'Jo, 8.!0 and $2o shouhl be added to the respective amount.s paid into Court for the three salvors, with costs. The Murthu, Young, 247. 44. The Ruwenn, a brigantine, owned in Prince Edward Island, after passing through the Strait of (.'ansn, went aground on the east point of the Island at low tide. After remaining in that posi- tion all night, and having pounn by tlic iliod witliin ing of twu KTc towage, ir, of which l)ahinc(' to 'viation foi- ling, 211. L' mouth of hcrnion in thrt'o (h\ys, ia(l('f|nat('ly ', That tlu' :{() and $2.') oiirt for the ard Island. Hid oti the n that j)osi- e tide rose, nd crew in of the crow on l)i>ard. ig niorniii'f i)oard, and he liitivena lere he had • contended a derelict ; cssel ofi' to 1 that they the ve.sse]'.s property. Ifihl, That the Ronu-nn was not a derelict, hut only a <-a.si' of onlinary salvage; that there wax not sutKcient proof of the alleged einhe/./.lenient, hut that the .salvors had not acted rigiitly in taking the vessel s(» far from her home; and therefore only ?ot(tl ■was awarded on an appraised value of 8'»,<)00. Tlif Itowiiin, Young, 2")"). 4'). Principles and examples in English Courts. The ShUd Mintr, Young, 2."». 4(i. The schooiu'r Thixilr foune Flora, Young, 48. •See JiiriKdicliijii, IJt). 47. One of Her .Majesty's troop-ships, having picked up a derelict l»ar(]ne with a valuahU; cargo, and hrought her into port, was not allowed hy the Admiralty authorities to receive any allowance by way of salvage. Tlf John, Young, 12!>. 4'S. ( )iie of Her .Majesty's men-of-war rendereil salvag«' services to a derelict ship, but was not allowed by the government authori- ties to make any claim therefor. Th*' JLu'inun, Young, 111. 4!*. This vessel, while on a vovaj^e from St. Pierre to Halifax, stranded on Sable Island. Only a fresh breeze was blowing at the time, and she received no serious injury, but her situation was one of considerable danger if not sj)eedily rescued. I'nder the nuister's direction the crew and passengers landed with all their clothes, pro- visions, etc., l)Ul the vessel was not stripped, and the master denied any intention of abandoning her. They all left her for the night, and the folhnving morning the six pas.sengers, taking a boat from the island, boarded the vessel, and without much dirti<'ulty, and at no per.-sonal risk, succeeded in Hoating her oH", when the master ami crew, joining her in their tnvn boat, they completed the voyage in safety. The passengers having taken proceedings to recover sal- vage, as in ca.se of derelict, the owner of the vessel paid the sum of 660 DKJKST. (Salnitfi.) C40 into Court, which they n'riifcd. Then' wns much c«»ntlictiii|? lestiriiony upon the pointH : Krnt, whether the rniiHter reiilly intended to ahandon or not; and, necond, the merit of the salvage HcrviceH rendcreil. He/tl, That the tender of X.M) waH Huffieient, luit that in view of tlie conflict of evi(h'nce, the parties shouhl pay their own costs. The Stif/a Mtiriv, Young, Hi. ')0. A f(»rei^rn ship becoming disahh-d in the ( luif of St. Lawrence, her crew were taken oH" by one set of salvors and safely landcid at •A port in the island of Cape Breton. .SuKxe(|Ucntly another .net of salvors fell in with the ship and i)ronght her into an adjoining port. The services in both cases were highly nn'ritorious and rendered while the di.'l)(), the Court awarded the sum (»f S to be divided among the salvors of the crew, and S'.iOO among the salvors of the ship. The Ileiiidall, Young, 1:52. 51. Awards made in the nature of life-salvage to tisliermen who bad been instrumental in .«aving many lives from a pas.«enger steamer wrecked upon the coast. The Atlantic, Young, 170. 52. A ship was stranded on a rocky shore with a point of rock protruding tli.'ough her hull. H. was em|)loyed to blast It away and .so free the siilp. Itehl, That this wa.s not a salvage service. {'!) That the Vice-Admiralty Court had jurisdiction to award reasonable remuneration in respect to the same. The Walt (*i W. Hob. 70) referred to. The Coda Rica, 8 E. C. K. 28. 53. A stranded ves.>*el abandoned by the owners to the under- writers, and sold by them, was saved, and was brought by the purcba.^ers to a shipwright for repairs. Ilild, That the towage of vessel from the place where stranded to dry dock was salvage ."ser- vice. (2) Claim for use of anchor, chains, etc., u.sed in saving >bip. 7/rA/, a salvage service. (8) Claim loi personal services not performed on vessel. Hehl, not a .salvage service. (4) Claim for .services of tug In unsuccc.s>ful attempt to remove vessel. Held, not a .Salvage Is a reward for l)enellts actually conferred. (5) Held, maritime liens take priority of posse.s.sory liens to the extent of the value of the ren at the time of delivery to the shli)wrlght. (6) Held, following the usual rule, that not more than a moiety of the value of the ren at the time when .saved .'^hould be awarded to salvors, there being no exceptional feature except 1)T(;kst. r,«ii II <'ii(ic(i llfft' MTVici'M t. Iiiit that ill iiy tlioir own I. LHwrciicf, y Iuii«|(m| lit ioIIht set of loiiiiiif^ port. 11(1 rcii(icri>(i iH'urcst liuid, f, hikI u .sale awarded the w, uiid $'.H)0 1:52. Iieniieii wlio a passenger . 170. oiiit of roik last it away 'age serviee. •1 to award n'utt (2 W. the imder- glit by the (' towage (»f salvage ser- I ill saving lal services (4 J Claim 'sel. Held, its aetiially possessory delivery to It not more ved should ure exeept { Sill I'l Iff, .) tlie Hinall value of the rrA. Costs of salvorH awarded <»ut nf other moiety. Costs ot' arrest and suie and of bringing fund into Court paid in priority to claims out of fund, in propnrlion tn the value of (he I'm at the time of delivery to the Dry Dock Company, and balance of the pmceeds of -ale which was not sufhcienl to pay <'laim of possessory lien holder. The (jlriiiffrr, .'{ K. C. K. 'u . '»4. In a collision lu'twccn a steamer and a sailing vessel in a f^g, ihe steamer was gning half speed. Had she been going dead ^low she might have been stopped in time to prevent the collision. ///■/(/. That the steamer was partly in fault, although the collision was no iloiibt due to the want of a fog-horn on the .sailing vess»d. (2) The sailing vessel immediately becoming waterlogged and helpless, and ill a position where, though safe for the moment, she might very shortly have been in great danger, it was a salvage .service, and not towage merely, to rescue her. (.'i) Where two ves.xels in collision lire both in fault, .salvage .services performed by one towards the other are to be divided. Thi/iimhrxl; Thr Fnimij I)ittnnl, '■) E. C. K. t!7. 5o. A steamship belonging to the Dominion government went ashore on the island of Aiiticosti, and suppliants rendered a.«sist- anee with their wrecking st«'amer in getting her afloat. The service rendered consisted in carrying out one of the stranded steam.^hip's anchors, and in taking a haw.ser and pulling on it until she came oflT. Kor carrying out the anchor it was admitted that the suppli- ants had bargained for <'ompen.sation at the rate of 8.')() an hour, but whether the bargain included the other part <»f the serviee rendered or not was in dispute. The service was continuous, no <'ircumstaiices of sudden risk or danger having arisen to render one part of the work more ditHcult or dangerous than the other. Hti>l, That the rate of compensation admittedly agreed upon in respect of carrying out the anchor must, under the circumstainces, be taken an affording a fair measure of compensation for the entire .service. (2) A petition of right will not lie for .salvage .services reiwlered to a steamship belonging to the Dominion government. Couette d nl. The q ueen. . i E.C K. 82. 56. A crew of a fisli, ig .schooner had performed certain salvage services in respect of u derelict ship, and gave the following j)ower of attorney respecting thi claim for such services to the agent of the owner of the schooner: " We, the undersigned, being all the s-\ i 6G-2 DKiEST. (Suli'dtjc.) crew of tlic scliooiior ic,h;ii':f at the t'ine said schooner rendered sulva>re services t'> the nanjue (/nrbec, do herehy irrevocably eon- -titiite and appoint Joseph (). Proctor our true and lawful attorney, with powt r uf substitution for us, and in our name and behalf, as • •rew of the said schooner, to bring suit or otherwiM- settle anil adjust -iny claim which we :nay have for salvage services rendered to the banpu' (/iifhcc, recently towed into the port of Halifax, Nova Scoiia, by .~aid s.-hooner Jolauthr, hereby granting unto our said attorney full power ami authority to act in and concerning the premises as i'uUy and eti'e- rually as we might do if personally pre.— ent, and also |)ower at his di.icretion to constitute and apj)oint, fr<.). o7. The lien of salvors upon property saved l)y their exertions is personal and inalienable. The Citi/ of Mdiiitouvc, Cook, IIH. See M-i>-Hliii( LItii, 7. '>6. An assignment by .salvors, for a val;,! consideration, of a sun) due them for salvage, does not so vest in their assignees as to enable till' latter to pntceed /// r(in in their own names. lh!(L .')!•. A steam ve.sxe!, while on fire in the lower St. Lawrence, dere- lict, was martially saved by a steam tug, which 'wed her to the shore, where she was benched, and afterwards sold by decree. The .. A steam-tug engaged to tow a ship can claim for .sorvices to such ship if she incurs a risk or performs a duty outside the scope of her original enL'ag«'nient, and when she has been freed from the obligations under wliieli she is placed by her origimil contract, as by a I'/x vuijor, or by accidents not contemplated when 'he contract was entered into. The Vietury, Cook, ;>;J5. a VI t; dan by pn the C. ler rendered 'voeahly coii- Ail attorney, '1 belmlf, as •' settle and oes rendered Hlifux, Nova ito our .said ci'niing the <»nally j)re.>.- I'J'oint, from fe't'iits under <■(', and tlie to revoke." t t ) reeeive 'li upon tlic >rrut(l. (2> "ois of such •lid not bar The (Quebec. exertions is ;, 178. "I, of a snrn »s to eualiie I'cnee, dere- lier to the 'Tee. The ''" sale and e ProffrcMn, .serviee.« ro ' tlie scope li from the Kiitraet, as t-' eontraet DKJKST. (.SV//C(///c.) <)1. The tUff eannot ehiini if the ship has been broujrht into a danjrerous position by the fault of the tnj;, on the principle that a ves:,oUO sterling, when on a voyage from Montreal to Cape Breton, broke her shaft off the Bird Kocks. The SS. Xrstoridu, valued, with her cargo and freight, at €07,000 sterling, bound from Montreal to (Ilasgow, took the I'd/nierin in tow, and towed her safely to Sydney. In doing so the Nenttirinn deviateil from her voyage, but incurn-d no special risk. The towage lasted twenty hours. l'l,l'»0 sterling allowed as salvage remuneration. Tlir I'uliin'fin, Cook, IJoH. ()'». Salvage means rescue from threatened loss >r injury. Ko danger, no salvage. If the ship be in danger, then the rescuers earn a salvage reward, which, on the grounds of pid)lic policy, is to be liberal, but yet varii's ai-cording to the imminence of the diinger to the ship on the one hand, and the skill and enterprise and ilanger of the salvors on the other hainl. (2) A small packet steamer, while performing one of her regular trips between certain point in thick weatlier, discovered a large steamship lying at anchor in sin-h a position as t(» be in imminent danger n[' becoming a total loss. The later signalled the former and asketl to be toweil into pctrt. This the packet steamer refiHcd to do, wishing to prosecute her voyage, but '"greed to tow the ship out of her dangerous position into the oj)en sea, and thus give lu'r nnister directions to «'nable him to make 1 is port of destimition. This oifer was accepted and acted upon. In conducting the ship to the open scathe packet steamer performed the service both of a pilot and tug, and diowed ski II and enter[)rise, and incurred ap- preciable risk while st> engagetl. Held, to be a salvage, and not a mere towage service. 663 604 DKJKST. m (Safru'/r.) Scmhle, While the Court is (lispn. K. C. II., ;J32. no. The St. C. navinj; sailed from 8t. John, N. B., with a cargo of deals, bound for Liverpool, went ashore at I)ij)per Ilarhor, aliout twenty-five or thirty miles below St. John. The ship's agents at the latter place engaged two tugs, the S. K. and the ]>., to go down and j)ull her off. For this service they were to receivi; an agreed .sum, and the S. K. was to receive a further sum, in case the ve.s.sel was got off, for towing her back to St. John. When the tugs reached the vessel it was found that more men and apj)liances were needed, and the S. K. returned to St. John for a steam pump ami other api)lianees. The L., at the re(iiiest of the master of the vessel, remained to tend on the shij). During the absence of the S. K. tlie ve.s.«*el was floated, and through the exertions of the L. the ship was prevented from going on the rocks. lleU, That the •services rendered were more than towage .services, and that the L. was entitled to salvage reward. The St. C/o/u/, Stockton, 140. (i7. A salvage service having been rendered a foreign vessel, which had gone ashore near Point Kscuminac, near .Miramichi Hay. in an action for the recovery of the amount of such service. Hi/d, That the costs should i)e j)aid first out of the fund in Court, then the amount awarded as salvage .services, and any balance to the owners, as the seamen had been paid. The Nurdcap, ibid, 172. ♦)S. Two vcs.sels — tilt! F. and the A. — wert; moored to a l)Uoy on the north of the liarbor of St. John, N. B. They were fastened together, and during the night broke loose by reason of the buoy becoming detached fiom its mooring, and they drifted bow foremost v i»w foremost ileep. Tlie ?essel.s, and, the liarbor erviee.s ren- id although yet .salvage le, and that he F. with- 6i>. It is perfectly eoniju'tent for salvors, instead of leaving the amount of remuneration to be determined by the Court, to agree with the master of the ve.«sel in distress to rend«'r the n<|uired assistance for a specified sum. Thi' Marion 7 t/Zc/', Ca.ssel's Dig. o21. See Derelict. 70. For rescue by the crew, one si.xth allowed for salvage ; but the King's ships not entitled to anv salvage for performing their ordinary duty, 'f/ie M'd/hr, St.-wart, Kto. 71. The property of enemies protected by a license is li!d)lc to pay for salvage services rendered by u IJritish ship. No • Ivage due for rescuing a vessel which had been seized for a breacii of the laws of its own country. The A/>i(/ai/, ibid, .'}o"). SALVORS. A.S to conduct of, see The Jioxvenn, Young, 'i-')') ; The Chnr/en Forbes, ibid, 212; The St. (fond, ante, 153, note; also ante, pp. 172, l!>4. See Salvage. SEAMEN, 1. If a seaman be disabled in the performance of his dutv, he is to be cured at the ex])ense of the ship; l)Ut if the injury which he sustained be j)roduced by drunkennes.s on hi.^ part, he must i)ear himself the consequences of his own misconduct. The Atlantic, 1 Stuart, 12-"). 2. Abandoning seamen, disabled in the service of the ship, with- out proviort and cure, er[uivalent to wrongfid discharge. Ibid, '.]. The seaman owes obedience to the ma.ster, which may be « iiforced by just and moderate correction ; l»ut the ;naster, on his part, owes to the seaman, )esides protection, a reasonable and direct <-are of his health. Tlir Recovery, 1 Stuart, loO. 4. Where a seanmn can safely proceed on his voyage, he is not entitled to his discharge by n'ason of a temporary illness. The Tu-erd, 1 Stuart, 132. •'). Mere sickness does not tletermine the contract of hiring be- tween him and the master, ibid, 133. »). Seamen going into hospital for a small hurt not received in the performance of their duty not entitled to wages after leaving the ship. The Captain Jionn, 1 Stuart, 21o. CGG DKtEST. ('^' miiH'H ) ■X-) i^ 7. MariiuTji, in view of the Admiralty law, are moprsi ronsUii, and are uiuler the fspecial protection of the Court. The Jane, 1 Stuart, 2.')M, H. The jealousy and vij^ilanec and parental care of the Admiralty, in respect to hard dealings, under forbidden aspects, with the wages of nuiriners. ibid. {>. The Court of Admiralty has power to moderate or supersede- agreements unul.- under the pressure of necessity, arising out of the situation of the parties, ibid. 10. While acting in the line of their strict duty, they cannot entitle themselves to salvage. The liobert and Aiinr, 1 Stuart, lioo. 11. For services beyond the line of their aj)pnipriale duty, or under circumstances to which those duties do not attach, they mav claim as salvors, ibid. 12. Seamen are regarded as essentially under tutelage, anci every dealing with theui personally by the adverse party, in respect to their suits, is scr\itiiiize(l by the Court with great distrust. Tht Thciis, 1 Stuart, .'{Ho. 13. Negotiations with them, even before suit is brought, more to the satisfaction of the Court when entrusted to tiieir proctors, ibid. 14. A seanuin is entitled to his costs as well as his wages, and a settlement after suit brought, obliging him to pay his own costs, is in fact deducting .so nuich from his wages, ibid. See Pntctiee ; Co>. The Merchant Shipping Act, l'H.")4, and amending Acts, now govern agreements with seamen. 1(5. A promise made by the master at an intermediate port on the voyage to give an additioiuil sum, over and above the .stipulated wages in the articles, is void for want of consideration. The Lock- ivooiIk, 1 Stuart, 12:5. 17. Cliange of owners, by the sale of the ship at a British port, does not determine a subsisting contract of the seamen, and eniitlt ritei 1 to v.Mgcs before the termination of the voyage. The Scotia, i "^'aart, 100. ^ce Sale. DKiKST. r.f;7 uipts roiisuii, tuart, 2.')«, le Admiralty, ith the wages or supersede iig out of the they cannot 1 Stuart, :i'^?,. iate (hity, or eh, they may ge, and every in respect ti> istrust. Thr ught, more (<► roctors. iuld. wages, and a < own costs, is y the General aunot be en- g Acts, now e port on the lie stipulated The Lock- British port, I, and entitli The Scotia, [S( ((lilt II.) 1^. Where a voyage is broken up by consent, and the seamen continue under new articles on another voyage, they cannot claim wages under the first articles subseed for "a voyage frotn the port of Liver- jiool to Constantinople, tb.ence (if required) to any port or places in the Mediterranean or ]ilack Seas, i>r wherever freight may otiir. with liberty to call at a ])ort for orders, and until her return to a final port of discharge in the X'nited Kingdom, or for a term not to exceed tweK''.' 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 failed to obtain at the ports at which she had j)reviously been, it was IL'hl, That coming to Quebec could not lu; considered a prosecution of the voyage under the !l4th section of the Mercantile Marine Act of 1)S")(), re-enacted by the lllOth section of the Mer- chant Shipping Act, l^i")4. The Varnna, I Stuart, .l")?. 21. The words " nature of the voyage " must have such a rational construction as fo answer the leading ])urposes for which they were framed, viz., to give the mariner a fair intimation of the nature of the service in which he engages, ihiil. olil, note. 22. The words " or wherever freight may offer " are to be con- strued with reference to the previour- description of the vnyage. .Jd, ;](i(). 28. Tlie words "or elsewhere " must be coiistruvd either as void for un''<.'rtHinty, or as subordinate to the princii)al voyage stated in the preceding words, ibid, o()l. 24. Where seamen were shipped for a voyage from Lniulon to Quebec and back to the port of London. Ilehi, That the nature ot the voyage thus stated was a pufticient intimation to the mariner €08 |)I(;kst. I (^Si'i/iiifii.) (if its (liirntiiiii, and a substantial cuinpliance with tlio provisions of the Merchant .Shippin},' Aets, 1«.')4 and IST'J. The Red Jacket, Cook, .'{04. See Mariner li Contnirty ; Wnf/en. SEAMEN'S WAIM'X 1. In the course of a voyaye tlie master promises the seamen an additional sum over and above the stipulated waj^es in the articles. This promise is void for want of consideration. The Lvrkwood/', 1 Stuart, \2:i See Mitriner'n C(»itr). SECURITY FOR (JOSTS. 1. .\ collision took place in New York Hay l>etween The Mnrn mid t'lirrie, an American registered ves.-iel, and Thf Oakjield, w steamship registered at the port of (ila.sgow, (ireat Britain. The plaintilf, a resident of the city of New York, I'nited States, and oWJU'r of the American ves.xel, caused The Onkfield to he arrested in a cause of damage by colli.sion at St. John, N. 11, by proces> issued out of the registry of the New Brunswick Admiralty District. The defendants applied for .>*ecurity for costs, on the ground that tiie i)laintiff was a non-re.sident. The plaintiH'l)y affidavit declared his intention to remain within the jurisdiction until his .>uit wa- tinally heard and determined, and resisted the application, relying: on Redoiido v. Chuytor, 4 (^. B. I). 4");}. Counsel for defendant- contended that Order (io, ruh; (i, of tlu; English .Judicature Act 1883, api)lied, and that under the Camidian Admiralty rules of 181*.'}, Order (!5 of the English High Court must govern. The case <.f Mirhiei-< V. The Empire I'nhtce, Ltd., (iti L. T. 132 ; 8 Times. L. R. 378, was pre.i. of this kind. SHIP. See Interpretation of Ttrmii, SHIP'S ARTIC See Mariner^H Contract; Seamen, LES. a(/eg. SHIPWRECKS. See Acts of Parliament, 14. SICKNESS. *e(' Seamen : Wagex SLAVE TRADE. 1. An American ves.sel condemned. The Merced, Stewart, 205. '1, It is not necessary to liave slaves on board ; it is sufficient if the trade is incipient, jtrogressive, or complete; it may be proved liy the nature of the ve.s>iel and cargo in o|»position to the positive nath of the master. The Severn, ibid, 2X4. SOLICITOR (JENERAL. See Attorney General. SMU(iGLL\(;. It forfeits the vessel though the owner be innocent. The Seaway. Young, 2(>7. STARliOARD Probal)le derivation of thi.< nautical term, i Stuwt, ). 235. STATUTE. 1. The repeal of a repealing statute has generally the effect of reviving the original siatutt Thf London, 1 Stuart, 151, Hy Con. Stat. c. 12<>, s. 5, ot' New Brunswick, it is provided that no Act or portion of an A<-t heretofore or hereafter repealeti ."ihall be revived unless by expre.«thcr, to pursue a course wliicli is sate, ami >h«' aihijits line which is perilous, theu, if mischief ensue, she i« aiiHweralih' for all (M)use<|uences. Thf Jnlin Miimi, 1 Stuart, 'J(!"). 2. in a cause of collision lietweeii two steamers, the Court, assisted Ity a captain in the Uoyal Navy, pronounced for danuijrt « and costs, huldiu;: that the one which crossed the course ot' tin other was to blame. TIk- I'nj-Tnu'u, /Am/, "llx. I). Makinjf short and unusual turns to cross the course of another steamer coming' into port, contrary to the usual practice and cus- tom of the river, and the rules of miod se-annmship, condenuud in ^himaj^es. TJk' C}ri*re)if, ihlil, "J-Slt. 4. Such dangerous maiiHiivns in a cnwded port liki' that ot' (Quebec to be discountenaiiceil. iltid. 5. Steamers are to lie considered in the li;'lit of vessels navigat- ing with a fair wind. The iMm/itni, ihltl, ."»i4. (). Ivi'ory steamship when navigating any nari<'v channel shall, whenever it is safe and practicable, keep to that side of the tiiirway or mid-channel which lies on the starboard of such steamship. The -Mercha it Shipping Act, 1H,")4. Tlif Imjn, ihi'l, '■)']'>. 7. When two oi' more steamboats of niieijual speed shall be pur- suing the same conr.M' within the limit> of the port of (Quebec, the -lowest boat, if ahead, shall draw on the left and allow the oni' at the stc;e to psiss on the »l!irbu(/|-(l .-ide. See I'' litiv i)f Triiiilij Ilimur nf (/iirlxc nf ]'2l/i (if (Jrlalirr, I.S."),"). X. The pas.senger steamer S., sailing up the river St. .John, met the steam-lug N. coming down, near .Vkcrlcy's I'oint, where the river is altdul hall' a mile wide. The S. was near the we.-tern shore, which was on her port -ide going up; the N. about one hundred and lifly yards from the -ame side of the river. Ihe S,, i»v keeping her course when slu- iirsi sighted the X., might have avoitled the collision, l»ut instead ported her helm, which gave her a diagonal course to starboard towards the east side, and as a result struck the N. on the starboard (piarter and sank her. Jfi/il, That the S. was to blame, and liable for the danuiges sustained ; also held that where two vessels are meeting end on, or nearly so, the rule to port helm may be departed from, when there is rea,sonal)le grountl for believing such course is neees.sary ibr saiety. and consetiuently the >Iln\viii^ close 1 is siit't', and t'lisiip, she i- ^^tiiurt, "J*!"). ■•"*, tilt' ('(luri, fiir fliiliiu;.'! - I'lll-M- of till r>(' of uiioIIk I •li""<' and cii-- iiiidcinncd ill I like that ..| 't'l.s navijrat- ilianiicl shall, of tlif fairway ■anisliij), Till' shall lie |)iii-- f (^IU'I)C(', the o\v the one at iohrr, IS.-,-). •■^t. .John, nut nl, whirc thr ivc.-tcrn shore, one hundred '^., iiy keeping ' avoided flic iei- a diaj^onal lilt struck the nit the S. was Iso held ihal c rule to jM)rt (' giountl for se((uently the DKiKST. (Sti iiiiirr. ) N. was not to itianie, immediately hefore the eolli^ion, for {tutting Iter helm to .'-tarlionnl. Tlir SintlitiigiA : Tif Xijihiiie, Stockton, nittf, p. 1. !>. A vessel may take a course o|i|>(..-ed to that indicated Ity tlu' ruli' where there it« reasoiuthle (ground for lielieving such proceedinji necessary for her safety or more secure navijrulion. ihid. 10. The tutf (I. was proceeding up the river St. .John, and the lug \'. condng down ; when near Swit'l I'oint tiny canif into colli- -ion, and the \'. sank. The (i.,at the time of the accident, was, contrary to the rules of navigation, near the we.xterly short' on the port side of the ve>sel ; the V. did not exhibit any nmsthind while liL'ht, as re({uired liy the regulations. Ifr/il, That hoth ves.sels were to iilame; that the collision was occasioned partiv liy the omission of the V. to exhiliit her masthead white light, hut prin- cipally hy the course of the . sTi:AM-Tr(i. 1. A sailing vessel running fold of another coming up the St. Lawrence in tow of a st<'am-tug, c<»n(leinned in damages. 'J'hi Xiafjiiid, I Stuart, oOH. 2. A ve.«sel in tow, witii a head wind and no sails, and fast t i.s not bound The Sfirah, 1 (73 to 1884. sr ku()(;ati:s. I. Viilidity given lu (ht- judicial act.-* of surrogates who execute the otlicf of judgo in llie Courts of V'ice-Adiuiraity abroad, (hiring vacancies in tlic oHices of jtulges of such Courts, whether occasioned l»y tlic dcatli, or resignation, or other removals of the said judges, oli (mo. ;{, c. H2 (passed l!">lh dune, IMIC). TAIiLE i)V KKKS. 1. Since the passing t)f the Imjierial Act 2 Will. 4, c. T)!, the estaiilishment of a talile of fees I'or tlu' Vict'-.Vdniiralty ('ourt is exclusively in the I'rivy ( 'ouncil. Thr John itml Mnri/, 1 Stuart, H4. 2. From 17(14 to 17^0 there are no records in the liegistry of (^iiel)ec. or documents, showing what was done in that interval of time in relation to fees. T'/c London, l/tlt of which expired on .\pril 2')th, 17!H). ihld. 4. I'he record of the Court conlains no intormation of the fees taken by the otHcers in the interval betwi-en the expiration of this contiiuied ordinance and the table oi' W-ci* established under tlie authority of the judge in 1^0!), and which was generally acted upon by him down to the passing of the 2 Will. 4, e. ")1, and the proMudgation of the table of fees of June 27lh, 1m;;2. ibid. T). From this perin(| down to the < )rder in Couiu-il of November loth, LSoi"), this table of tee- was acted on. ihid. (1. By 2(1 Vict , e. 24, auinority was given to Her Afajesty in ( "ouncil from time to (im<' to ( >tal)lish table- of fees. See untr, p. ^f^s. 7. For present law relating to the establislunenl i oni time to time of tables of fees, .see Colonial Courts of Admiralty Act, 18!K), s. 7. 'intc, p. 3!)1. 8. For table of ieGu now in force, see ante, p. 527. See Fees. TKLF(JRA1'1I ABLE. See Collision, !»8. 8S IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 2.8 IIM IIIIIM 2.0 1.8 1.25 1.4 1.6 — ^ 6" - ► % <^ /a 7 O 7 //A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 s. IP V :\ \ c^ >^ &?^ 674 digp:st. TENDER. 1. Wiicie a tender is refused simply on account of more being alleged to be due, it is not necessary that the amount tendered should be in coin. The Brithh Lion, 2 Stuart, 114. 2. As to the practice of tender in the Court, The MaHno, Young, at p. 53. 3. Tender where sufficient entitles defendant to costs. See The Peeress, Young, at p. 267. See Costs. TERM PROBATORY. See Practice, 5. TITLE. 1. The Act 26 Vict. c. 24, s. 10, gave Vice-Admiralty Courts jurisdiction touching the title and ownership of any vessel regis- tered in the possession in which the Court is established. Prior to that Act they had no more than the ordinary jurisdiction possessed by the High Court of Adniiralty before the passing of 3 tfe 4 Vict, c. Q'i (1840). See the judgment in The Australia, 13 Moo. V. C. 132 (1859) on appeal from Vice- Admiralty Court of Hong-Kong. The jurisdiction is now governed by 24 Vict. c. 10, s. 8. ante, p. 349. TORTS. ^ee Admiralty ; Assault; Collision; Damages {personal); Juris- diction; Harbor: Master; Passenger. Also ante, p. 157. TOWAGE. 1. Jurisdiction as to claims for towage extended by the Vice- Adrairalt} Courts Act, 1863 (26 Vict. c. 24, s. 10). ante, p. 356. 2. Under this Act the Court can enforce the payment of reason- able towage, hut has no authority to enforce an agreement to employ a i)arti(ular tug eith* " for a definite or an indefinite quan- tity of work. The British Lion, 2 Stuart, 114, 3. Where an agreement was made in the Lower St. Lawrence with a tug to tow a ship to C^uebec, Montreal, and back to Quebec, Held, That the tug, having towed the ship to Quebec and Montreal, her owner could not transfer the contract to another to complete it, and that he could not substitute an inferior tug witii additional tow for the purpose. The Euclid, Cook, 279. 4. Qunre : As to the jurisdiction of the Court, ibid. of more he'ius nount tendered ling, at p. 53. costs. See The niiralty Courts iiy vessel regis- shed. Prior to iction possessed of 3 & 4 Vict. Moo. T^. C. 132 ig-Kong. The ante, p. 349. rsonal) ; Juris- 157. I by the Vice- ante, p. 356. jent of reason- agreement to idefinite quan- ►St. Lawrence ck to Quebec, and Montreal, to complete it, additional tow yid. DIGEST. ( TiHriujc.) 5. Where negligence was charged against a tug for running hor tow aground in an intricate channel in the St. Lawrence, Hdd, That the accident was owing to the increased danger of the naviga- tion at the beginning of winter, and that the immediate cause was the shutting out of lights and the fact of the buoys in the channel being invisible. The Giielph, Cook, 321. 6. Li the opinion of the Court the tow was to blame for navigat- ing at a dangerous and inclement season without a qualified licensed pilot, ibid. 7. Distinction between towage and salvage. The Herman Liid- ivig, Young, 211. 8. As to the authority of the master to enter into an agreement for towage. The Athabamt, Cassell's Dig., 522. 9. Two vessels — the F. and the A. — were moored to a buoy on the north of the harbor of St. John, N. B. They were fastened together, and during the night broke loose by reason of the buoy becoming detached from its mooring, and they drifted bow foremost down the harbor. All on board the vessels were asleep. The plaintiffs' tug gave the alarm to those on board the vessels, and, by fastening on to the A., towed both vessels out into the harbor and left them in a place of safety. Held, That the services ren- dered under the circumstances were salvage services, and although the tug had not, in fact, fastened a line to the F., yet salvage services had been rendered her, for which she was liable, and that the owners of the tug could jjroceed separately against the F. with- out joining the A. in the action. The Frier, Stockton, ante, p. 180. 10. A tug-boat was engaged by the charterers of a vessel, the E., to tow her from the harbor of St. John, N. B., through the Falls, at the mouth of the river, beneath a suspension bridge which spans the Falls at a point where the river flows into the harbor. The vessel towed was chartered to carry a cargo of ice from tlie loading place above the Falls to New York, and the charterers were to em- ploy the tug and pay for the towage services. The tug having ■waited to take another vessel in tow, together with the E., was too late in the tide, and in going under the bridge the topmast of the E. came into collision with the bridge and was damaged. Held, That the Court had jurisdiction to entertain the suit; that the delay of the tug in going through the Falls was evidence of negligence; 675 670 DIGKjST. (T'liriKi, .) and tlic tug and oMiiors were condeinned in damages and costs. The Ma;/i/ie M., ihid, 18o. See note to this case, ante, p. 189, 11. The owners of tng-boais plying in the harbor of St. John, N. B., entered into an agreement to cliarge a uniform rate for tow- age services, and specified the amounts for the different tows. The effect was to materially increase the rates on former years, when there was free comjjetition and cut rates. The plaintiffs' tug, at the request of the H. E. K., rendered to the vessel towage services, and charged the combination rates. The vessel owner offered to pay what he had paid in former years for like services, and refused to pay more, claiming the combination rates were against public policy and illegal. Hc/d, That as the charges were reasonable ajid fair for the services performed, the plaintiffs were entitled to recover the full amount claimed. The HuUie E. Kin;/, Stockton, atife, 17">. See note to this case as to illegal condnnation in restraint of trade. See Steamers; Steam-tug ; Salvage, 'A, GO, 66, TRADE. Between enemy's ports by Order in Council, January 7, 1807. Intention not sufficient. The Kcpres-i, Stewart, 25)2, TRADE AND NAVIGATION LAWS. As to seizures for breach of the Trade and Navigation Laws. See Cnntotnn ; Revenue Cases; Vice- Admiralty Courts. TREATY. 1. Under American treaty vessels may go to supply with neces- saries the vessels employed in fishing upon the coa.sts of Labrador. The Fame, Stewart, 95. 2. The American treaty dissolved all connection with the subjects of the United States. Persons born under the King's allegiance there not entitled to the privileges of British subjects. The Provi- dence, ibid, 186. 3. A passport not being according to the form of the Swedish Treaty, 1661, a ves.sel restored, but claimants condemned in costs. The Stockholm, ibid, 379. 4. To the same effect. The Gustava, ibid, 041. ."). The treaty of 1818 and fishing rights thereunder. The White Faivn, Stockton, Viet. c. ttomry, damage to a ship by collision, contempt in breach of regulations relating to His Majesty's service at sea, salvage, and droits of Admiralty. 1 Stuart, 4. o. 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, ibid. 4. Notwithstanding the cause of action may have arisen out (»f the local limits of such Court, and to carry on the same in the same maiUKM- as if the cause of action had arisen within the said limits. ibid. 5. The Court of Vice- Admiralty in the colonies has a concurrent jurisdiction with the Courts of Reconl there, in the case of forfeit- ures and penalties incurred by the breach of any Act of the Im- perial Parliament relating to the trade and revenues of the British possessions abroad. See The Customs Consolidation Act, 18o3 (17&18 Vict. c. 107, s. 183). Vice-Admiralty Courts were made Courts of Record by 24 Vict, c. 10, s. 14 (18()l'). <3. So in the case of any penalties and forfeitures incurred by the breach of the Act of the Legislature of Canada consolidating the duties of customs, or by the breach of any other Act relating to thi (1 DIGEST. 679 'Joe, Stewart, to 1883, see rt in Canada lo the Cro^^ n K'aring date nil Murrav, inis.sion wa.< '^' the High ' 1768, aiicj ■'^«ioiis down the jurisdic- broad, witli J «i ."hip In- i« Majesty V art, 4, H'reof, .shall "i-t, it shall any of the ^urt. ihid. •sen out of n the same •'•id limits. 'oiifurreiit of fbrfeit- f the Im- le British ^ct, 183;) ' 24 Vict. ^d by the ting the lating to ( Virc-Ailnu'mlfi/ Court.) the customs or to trade or navigation, concurrent jurisdiction is given to the Court of Vice- Admiralty with' the Courts of Record. (Provincial Stat. 10 & 11 Vict. c. 31, s. 51). 7. So it has jurisdiction in the case of any penalties incurred by the breach of the proclamation of the 1st of January, 1801, pro- hibiting the use of colors worn in Her Majesty's ships. (8 & J) Vict. c. 87). 8. The Court cannot, in cases of pilotage, enforce a judgment of the Trinity House upon the same cause of demand. The Phabe, 1 Stuart, 59. 9. The jurisdiction of the Court is not ousted by the provincial statute 45 Geo. 3, c. 12, in relation to claims of pilots for extra pilotage, in the nature of salvage for extraordinary services ren- dered by them. Tlie Adoentarer, 1 Stuart, 101. 10. In a case of wreck in the river St. Lawrence (Kimouski), the Court has jurisdiction of salvage. The Royal William, 1 Stuart, 107. 11. The jurisdiction of the Court, as to torts depends upon the locality, and is limited to torts committed on the high seas. The Friends, 1 Stuart, 112. 12. Torts committed in the harbor of Quebec are not within the jurisdiction of the Court, ibid. 13. It has jurisdiction of personal torts and wrongs committed on a i)assenger on the high seas by the master of the ship, ibid ; and The Toronto, 1 Stuart, 181. 14. In no form can the Court be made ancillary to give effect to proceedings had before a justice of the peace under The Merchant Seamen's Act. The Scotia,, 1 Stuart, IBo. 15. Has no jurisdiction with respect to claims of material men for materials furnished to ships owned in Canada. The Marij Jane, 1 Stuart, 267. 16. The Court has undoubted jurisdiction over causes of posses- sion, and will restore to the owner of a British ship the possession of which he has been unjustly deprived. The Mary and Dorothy, 1 Stuart, 187. 17. By the 240th section of The Merchant Shipping Act, 1854, power is given to any Court having Admiralty jurisdiction in any of Her Majesty's dominions to remove tiie master of any ship being 680 DKiKST. ( Vlci-Atliii'irdllii Ciiiirl.) witliiii the juiisdictiou of ."iicli Court, iind to appoint a iio\ ..*tor ill his stead, ii' certain cases, ih'nl, 1 Stuart, 1 '*» Vict, c, 104. ss. 1S,S, ]«{), to he adjudged hy the Vice-Admiralty Court. The I'linuKi, 1 Stuart, .")i")7. 1!J. The Court of Vice-Admiralty exercises jurisdiction in the ca.se of u vcs.sel injured hy collision in the river St. Lawrence, near the city of (^uehec. Tin' OoiiIUks, 1 Stiuirt, oSM. (This was -be- fore the pas.sing of the statute of the Imperial Parliament, 2 Will. 4, c. 51, s. (5, removing doubts as to the jurisdiction). 20. Her ^Fajesty, by commission under the (Jrent Seal, may em- ])ower the Admiralty to e.stablish one or more Vice-Admiralty (.'ourts in any jiritish po.ssession, notwithstanding that such pos.ses- .sion may have previously acquired independent legislative powers. (80 ct :n Vict. c. 4o, s. 10). 2 Stuart, 2G1. 21. The jurisdiction and authority of all the existing Vice- Admiralty Courts are declared to be confirmed to all intents and purposes, notwithstanding that the possession in which any such Court has been established may, at the time of its establishment, have been in possession of legislative power, ibid. 22. Vice-Admiralty Courts have jurisdiction in all cases of breaeh of regulations and instructions relating to Her Majesty's navy at sea, and in all matters arising out of droits of Admiralty. (2*5 Vict. c. 24, s. 10). 2 Stuart, 255. 23. The jurisdiction in respect of seizures for breach of t'le rev- enue, customs, trade, or navigation laws, or of the laws relating to the abolition of the slave trade, or to the capture and destruction of pirates and piratical vessels, is not taken away or restricted by " The Vice-Admiralty Act, 1863." (26 Vict. c. 24, s. 12). 2 Stuart, 255, 256. 24. Nor any other jurisdiction, at the time of the passing of that Act, lawfully exercised by any such Court, ibid. 25. The jurisdiction of the Vice-Admiralty Courts, except where it is expressly confined by that Act to the matters arising within the possession in which the Court is established, may be exercised, whether the cause or right of action has arisen within or beyond the limits of such possession, ibid, 256. *.f mil I raj DICKST. 681 t 11 I10\ ..ster fCoO. rcfiTred and 20'. 2 Stuart, 201, 20(;. 27. As to their jurisdiction, see Tlif Cilj/ of Prtir-'^hnvii. Youni;-, 1. 2S. The jurisdiction of the Admiralty is now governeil by the Admiralty Act, ISOI. anlr, p. 402. See Adniiralt;/ JurltuJhiion ; Jiirl.idlctinii. VI8 >rA.I()U. 1. If a collision be ])receded by a fault, which is its principal or indirect cause, the otlending vessel cannot claim exemption from liability on the ground of damage proceeding from a c/.m vuijor, or inevitable accident. The CtonlH-rlavd, 1 .Stuart, 7S. 2. Where the collision was the eflect of mere accident, or that overriding necessity which the law designates by the term I'u major, and without any negligence or fault in any one, the owners of the injured ship must bear their own loss. I'hc Sarah Ann, ibul, .'501. 3. Where, by moving of the ice-bridge in the harbor of Quebec, a steamer was brought under the bow of a sailing vessel, her walk- ing beam broken, and her nnichinery injured. Held, That the elf when he signed the ship's articles. The Varuna, 1 .Stuart, 3(il. 682 DKJKST. I -^ ( Vo»/n(/i'.) 2. The Merchant Shipping Act, 1873, permits of any agreement with a .seaman under the section 14t) of the Merchant Shipping Act, 18o4, stating the luaxinnini period of the voyage or engage- ment, and the phices or j)arts of the worhl (if any) to wliich the voyage is not to extend instead of stating the nature and duration of the intended voyage or engagement, as by that section recpiired. 2 Stuart, 32H. WAGES. 1. Summary tril)unal for the trial of seamen's suits for the recov- ery of tlieir wages, by cotnplaint to a justice of the peace, under the -) & (i Will. 4, c. 19,'s. lo. The Af/nrs, 1 Stuart, oS. 2. No suitor ))roceeding for the recovery of wages under the sum of fifty pounds sliall be instituted by or on belialf of any seaman or apprentice in any Court of Admiralty or Vice- Admiralty, or in tlie Court of Session of Scothmd, or in any Superior Court of Record in ller Majesty's dominions, unless the owner of the ship is adjudged bankruj)t or dcchired insolvent, or unlet-s the sliip is under arrest or is sold l)y tiie autiiority of such Court as aforesaid, or unless any justices acting under the authority of this Act refer the case to be adjudged by such Court, or unless neither the owner nor n)aster is or resides within twenty miles of the place where the seaman or ap|)rentice is discharged or put asliore (17 tfe 18 Vict. c. 104, s. 18!l). 1 Stuart, :5.")8. This is now changed l)y the Imp. Act of 18(51. 8. Sununary tribunal for the trial of seamen's suits for the recov- ery of their wages, for any amount not exceeding fifty pounds, liefore any two justices of the peace acting in or ni'ar to the place at which the service has terminated, ibid, s. 188. 4. It is a good defence to a suit for wages by a seaman, that he could neitiier steer, fnrl, nor reef The I cu(/.y, 1 Stuart, 1)2. 5. Discharge and wages demanded on the ground tiiat the vessel was not properly supplied with provisions on the voyage to (Quebec, whereby seamen's health had been im})aired, and they were unable to return. The circumstances of the case examined, and tlie master dismissed from the suit, the seamen returning to their duty. The Recoveri/, 1 Stuart, 12S. 6. Imprisonment of a seaman by a stranger for assault does not iiititle him to recover wages during the voyage and before its ter- mination. The General Hewitt, 1 Stuart, 186. ' -I the in til wagj 8. the shipi !». tion| end bee t.) \\ thei r)i(;KsT. 683 any u^'rcenioiit reliant Sliippinjr y'iiiHi or fiigagc- y) to wliich till' f and duration Kiction ri'ciuired. t« for tlie rccov- n'iU'.v, under the under the sum any seiiiiuin or nvlty, or in the rt of Record in lip is adjudired under jure.st or , or uiile.ss iiiiy I" the cu.se to be r nor master is the seaman or c. 104, s. 18U). • for the recov- : fifty i)oiinds, tr to the ])lace amaii, that he iirt, 92. Liiat the vessel ge to Quebec, r were unable nd the master ir duty. The sault does nc^t before its ter- 7. The detention of a vessel during the winter by stranding in the river St. Ijawrenee, on her voyage to (Quebec, where siie arrived in the .succeeding spring, does not defeat the claim of the seamen to wages during the winter. T/ir. Factor, 1 .Stuart, IH.S. 8. Seaman going into hospital for a small hurt not received in tlie performance of his iluty, not entitled to wages after leaving the ship. The Ca/d(iiii liosti, 1 Stuart, 210. 5). In cases arising out of the abrupt termiiiatioii of the naviga- tion of the St. Lawrence by ice, and a succession of storms in tlu' end of November, seamen shipped in England on a voyage to (Que- bec and back to a port of di.schargi in the Tnited Kingdom, entitled t.) have provision 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. Thr Jane, 1 Stuart, 2i)C), 10. 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 re- turn, ibid. 11. Circumstances, as a semi-naufragium, will vest in him an authority to do so, upon proper conditions, as by providing and paying for their return passage, and thi'ir wages up to the time of their arrival at home. Ibid. 12. It is for the Court to consider what would be most just and reasonable; as, whether the wages are to be continued till the arri- val of the seamen in England, or to the nearest open commercial port, say l?ostoii, or until the opening of the navigation of the St. Lawrence, ibid. lo. Under the jjcculiar circumstances of this case, wages decreed, including the expense of board and lodging, until the opening of the navigation of the St. Lawrence, ibid. 14. Three of the promoters shipped on a voyage from Milford to Quebec and back to London, the eight remaining promoters shipped at Quebec for the return voyage ; and all bad signed articles accord- ingly. The ship came in ballast to Quebec, and after taking a cargo sailed from Quebec on her return voyage, and was wrecked in the river St. Lawrence and abandoned by the master as a total lo.ss. Held, 1. That the seamen who shipped at Milford were entitled to 0S4 > < ( "'".•/'>■.) wagoM for services uii the mitwiiril voyiiLre t'rom Milf'onl ti> (^iieltic, mill oiif-liiilt' the period tiiuf tin' vessel rca- rnen upon the parts saved is a elaini lor salvaife, and tiie (|nautiiMi re<;ulated l)y aruount wliicli woidd iiave hecn due for wa^M's. 'ilir l.ren haiit Sjuppin;.' Act, ].s.')4" ( \1 k^ I^S Viet. <'. 101, s. 18:5), which euiiie into operation on the 1st of May, 18")o. and hy which waj^c nre no longer to he dependent on the eurninu of frei<,dit. ih'td, 1 Stuart, 28«, note. J^niarr, 28]. '17it 1« Vict. I nf Miiy, 18.M. "II till.' t'liniiijir t Shippin^r Act, cut to tcriiiiiiato •road for wages, rciliiii-ed by t],,. over a eoiitraet M'"«'t. The Citij •^ and (lisl)iirse- iioiiey dejmsited "it to tli(! owners i tlioir failure, t'e or improper on.'sihle for tlic vay.s employed ■ while in port jnstifiahle, hut '> . 127. 20. Tlu! plaintill' claimed a sum for wages up to the term of his dismissal, and a further sum under a special contract which he allegi'd had been made upon his enteriiiir into the service of defend- ant, l)Ut of which he faileil t(» produce any evidence. The defendant paid the first sum into Court, having first tendered It to ijlaiiititf. He/(l, That there >liould Ite judgment for defendant, with costs. <^iiiiri:: As to the jurisdiction of the Court to iiKpiiic into the special contract if the plaintiff had brought forward any evidence in su|)port of it, the contract, if any, having been made in Kngland. The Peevess, Young, 2 DRIEST. If:; ■;■ ( Waf/,s.) of direct proof of collusion or fraud on the part of the master, the report n.ust be confirmed. Exceptional rules in the adjustment of such accounts. The James Fruser, Young, 159. 23. Two out of three prornovents shipped at Bermuda, on board the ship libelled, a blockade runner, for the round voyage from Bermuda to Wilmington, North Carolina, and thence to Halifax, !Nova Hcotia. The remaining proniovent shipped at Wilmington in room of one of the others. No ship's articles were signed, but there was evidence to show that the master had contracted to pay to each of the promovents certain specified sums, in three equal instalments. The contract was absolute as to two of the instalments, and, as to the third, there was a condition that was to be paid only if the claimant's conduct were satisfactory. Held, 1. That this was not an ordinary engagement for seamen's wages, but a special .'ontract. The City oj Petersburg, Young, 1. 24. Action by master and three seamen for their wages. The accounts produced by the master, who had also acted as ship's hus- band, were extremely unsatisfactory and unreliable. He claimed a balance due him ot ^'517.80, but failed to establish his righi; to more than S34.80. There was nothing against the demand of the other promovents, and the amounts claimed were awanled them. The .sums so recovered, beijg all under S40, and therefore miglit have been sued for before two justices of the peace or a stipendiary magistrate. Held, That the promovents should not have their costs. The Ann, Young, 104. 25. The master oi' a ship sought to enforce a claim in rem for wages as well as for disbursements and liabilities assessed in respect of necessaries supplied the ship, for which he made a joint note with the owner for S250, under an agreement that the note should be paid out of the earnings of th<' ship. This agreement was matle without the consent or knowledge of the mortgagee. Held, That the master had a maritime lien for his wages as well as for disburse- ments actually and necessarily made and lial)ility incurred in con- nection with the proper working and management of the ship, and that the limit of such liability would be to the value of the vessel and freight. (2) That the master did not exceed his authority in borrowing money on the note for the purposes of the ship, it ai)pearing that the sum so borrowed had been duly and properly expended for the ship. The Queen of the Isle.^, 3 E. C. R. 258. dri DIGEST. 687 )f the master, the the adjustment of Jimiula, on board und voyage fron^ lence to Halifax, at Wilmington in signed, but there ed to pay to each !qual instalments, raents, and, as to paid only if the hat this was not special ;on tract. leir wages. The ted as ship's hus- He claimed a Ills righ'; to more and of the other ded them. The fore might have )!• a stipendiary not have their aim 1)1 rem for Bessed in respect I joint note with note should be iiient was made e. Hdd, That as foi- disburse- ncurred in con- f the ship, and le of the vessel )' in borrowing ippearing that pended for the {WlKJt's.) 26. Disobedience will work a forfeiture of wages. The Cold- stream, 1 8tunrt, 38(>. See Justification, 1, 2. 27. In the year 1887, A. sold a vessel to M. and 8. under an agreement stipulating, among other things, that the vessel was to remain in the name and under the control of A. until the purchase money was fully paid, and that, in the event of the terms of the contract not being performed by the vendees, A. was entitled to take possession, and the vendees would thereupon lose all claim or title they might have to the ship or to moneys paid by them in respect of the contract. This agreement was not registered. For some time the vendees performed the terms of the agreement, but having failed to do so after a certain period, A. resumed possession of the vessel. Upon an action in rem for wages due to a seaman employed by the vendees, and which wore earned during their jjossession of the vessel. Held, That the amount of the claim being below $200, the Exchequer Court had no jurisdiction under sec. 34 of The Inland Waters Seamen's Act. (2) That the property in the vessel had not passed to the vendees under the agreement, and that whatever rights the seaman had in personam must be enforced against the persons who employed him and not against the vendor. (3) That the agreement was not a bill of sale within the meaning of The Merchant Shipping Act, 18-")4, s. 55. (4) That if summary proceedings had been taken as provided by The Inland Waters Seamen's Act, a direction might have been made to provide for the realization of the seaman's claim against the vessel, and she might have been tied up by the Court on his showing that the vendees who employed him were then the supposed owners of the vessel, and when action was brought were insolvent within the meaning of section 34 of the said Act. The Jessie Stewart, 3 E. C. R. 132. 28. The master of a vessel registered at the port of Winnipeg, and trading upon Lake Winnipeg had, in the years 1888, 1881) and 1890, no lien upon the vessel for wages earned by him as such master. (2) Even if such a lien were held to exist, there was in the years mentioned no Court in the province of Manitoba in which it could have been enforced; and it could not now be enforced under The Colonial Courts of Admiralty Act, 181)0 [53 cV 54 Vict. (U. K.) 688 DKiKST :. ' r c. 27], or Tlie Admiralty Act, 1891 [54 & 5o Vict. (Can.), c. 29], because to give those statutes a retroactive effect in sucii a case as this would be an interference with tin; rights of the jiarties. The Aurora, 3 E. C. R. 228. 29. The master of a ship has a lien for wages as against a mort- gagee. The a N. Pratt, 5 Can. L. T. 417 ; The Maytham, 18 Can. L. J. 285. 80. The ship M. arrived in Liverpool, England, with a cargo consigned to parties there, with instructions to the master by the owners for tlieir agents to collect inward freight and transact the ship's business. The agents purchased an outward cargo of coals for St. John, X. B., and informed the master it was on ship's account. By request of the agents, the master signed a draft for payment of cargo, althoujrh the owners, but unknown to the master, had sent the agents funds for the coals. Tiie agents shortly after became insolvent. Held, in an action by the master for his wages, that the owners could not charge the draft against tlie master, and that he was entitled to recover his full wages with costs. The Mistletoe, Stockton, ante, 122. 31. The plaintifi' brought an action against the P. for wages and disbursements as master of the vessel. In answer to the master's request when abroad for a statement of his account and for payment, the managing owner sent the master his individual promissory note for §800, payable with interest, on account of the wages. The managing owner subsequently became insolvent. The master, on his return to St. John, N. B., demanded payment from the owners of his wages and disbursements, the sum (ilaimed including the amount of the promissory note. The owners, by their counter- claim, sought to set-ort' against the master's claim, among other things, the amount of the promissory note ; but Held, That the master, under the circumstances of the case, had not lost his lien upon the vessel. The set-otf was rejected, and the plaintiff held entitled to recover, with costs. The Plover, Stockton, ante, 129. 32. Under the Seanien's Act (R. S. C. c. 74), a claim for less than $200 for wages earned on board a Canadian registered vessel must be enforced by a summary proceeding under sees. 48-55 of the Act. A County Court judge has no jurisdiction to try such a claim in an ordinary action for wages. Beattie v. Johamen, 28 N. B. 2<). t- (Can.), V. 29], II f'• John to Fred- '. «o called, near ver runs about I'l is about three f. being on the ort side of the "le vessels were e to iwrt side, fast the R. slie ""<"k the R. on '"aiu cliains, k. //^W, That accident ; that I tack, had the s to blame for for damages. ian legislation e Grace, p. 24. standing upon estcrn side of 'lin the limits injured by a ' to a steam- l<1, That since &■ 27 Vict. -y Court lias I for damage It hough the limits of a land. The > J-) in this n- i/ii(f, 54. to collision lose-hauled n her port shown that 'd as to be ^ssels kept ook place, of the B. t was the Collision. — Condnufid. duty of tiie latter to keep clear and give way, and not doing so, she was liable for tiie damajtes. The Arklou; 6(5. (5. The bust case was reversed on appeal to the .Judicial Conuuittee (!• .App. Cas. 136), the Court holding where there has been a departure I'rom an important rule of navi- gation, if the absence of due observance of the rule can by any possibility have con- tributed 10 the accident, then the party in default cannot be excused. Where the lights of the complaining ves- sel were not projierly burning, and were not visible on board the other vessel. Ili'ld, That in the al)sence of proof that this latter wius also to blame, I'le suit must be dis- missed. 'The ArUow, 72; s. c. 9 Ajip. Cas. 136. 7. The tug (t. was proceeding up the river St. John, and the tug V. coming down ; when near Swift Point they came into col- lision, and the V. sank. The (}., at the time of the accident, was, contrary to the rules of navigation, near the westerly shore on the port side of the vessel ; the V. did not e.xhibit any masthead white light, as required by the reii;ulations. Held, That both vessels were to blame; that the colli- sion was occasioned partly by the omission of the V. to exhibit her masthead white light, biU principally by the course of the G., and a moiety of the damages w.is given to the V. with costs. The (iemu-al, 8t). 8. The vessel .M. <>., under command of a pilot, was entering the Miramicbi, and near the Horse Shoe Bar, in the lower part of Bay du Vin, came into collision with a lightship there placed for the safety of navi- gation. Held, That under the evidence no fault was attributable to the M. (>.; that it was a case of inevitable accident, and the suit was dismissed, but without costs, as the (.'rown was the promovent, and no costs can be given against the Crown. The Mlniiie Gordon, 'Jo. y. The M., close-hauled on the port tack, heading about south-west by west, and going about three knots an hour, with the wind Collision.— C'o»»^Hier lookout contributed to the i'ollision> and she was accordingly condemned in damages and costs. The Mnitd Pije, 101. 10. The v., stone laden, on a voyage fromi Dor(!hester to New York, oil' Tynemouth' Creek, in the Bay of I'lunly, clo.se-hauled on the starboard tack, came into collision, with the K. K. .S., runnins^ free, in ballast,, 'oing up the Bay to Moncton. The iiij;lit was dark and foj/gy, and from the evidence it ai>pears that the V. bad no mechanical fog-horn, as re(iuired by the regulation.s, and that the one she had was not beard on board the E. K. S., which was to winilward. Held, That it wiis a case of inevitable acci- dent ; that the E. K. .S. was not to blame, and the action was dismi-sed without ct)stH to either party. It is a rule of the .\dn?i- ralty that where there is a material variance between the allegations of the libel and the evidence, the party so alleging is not entitled to recover, although not in fault, and fault is established against the other vessel. The Emvw K. Smallci/. lOO. 11. A tiig-loat was engaged by the char- terers of a vessel, the E., to tow her from the harbor of St. John, N. 1?., through the Falls at the mouth of the river, beneath a suspension bridge which spans the Falls at the point where the river Hows into the harbor. The vessel towed was chartered to carry a cargo of ice from the loading place above the Falls to New York, and the char- terers were to employ the tug and i>ay for the towage services. The tug, having waited to take another vessel in tow, together with the E., was too late in the tide, and in going under the bridge the topmast of the E. came into collision with the bridge and was dam- aged. Held, That the Court had jurisdic- tion to entertain the suit; that the delay of the tug in going through the Falls was evi- dence of negligence ; and the tug and owners JIIXJ INDKX. Coi.i,iHioti.— ( hiidnui'd. uc'i'f <'iiii(l('irMU'llinii>,i, 10, 12. HAHKAS CORPl'S.— 77.C C'hempea/ce,'2US. I N K V ITA MLE ACCI DENT. — See The Emma K. Smallei/, 10(1; The Minnie Gor- don, 9"), anti note to last case. INLAND NAVUJATION. -See K. S. C. c. 74, p. 301 ; K. S. C. c. 79, p. 372. INTEMPERANCE.— As it aflects right to wages, 127. INTERPRETATION OF TERMS.- See pp. 395, 413. Jl'DdPy. — Ai)i)ointment now governed by Admiralty Act, 1891, 402. JITDICIAL COMMITTEE— Law as to A PI tea Is to. 65. JIRISDICTION. See .\dmiralty Jurisdiction. LIEN. See Maritime Lien. LIOHTS.— Where the lights of the com- plaining vessel were not properly burning, and were not visible on board the other vessel. Held, That in the absence of proof that this latter was also to blame, the suit must be dismissed. The Arklow, 72. 2. An omission to e.xhibit a masthead white light will render a tug liable to a moiety of the damages, although the col- lision was mainly caused by the other tug being on the wrong side of the channel of a river. 2'ite General ; ante, 86. I'or existing regulations respecting the navigation of Canadian waters, see ante, p. 372. (R. S. C. c. 79.) LOOKOUT.- See The Maud Pye, 101, 104; The. Emma K. Smalley, 106. Digest, Collision, 118, 126, 134, 138, 156, 161, 162, 163. an I bill an| foil iiitl bi| p;.] \v;i| lie till fl' the col- e other tug ;banneJ of a pecting tJie see ante, p. % 101, 104; . 138, loQ, IXDKX. »;i»7 MARITIMK LIKN.— Theplaintiflbrought an action againnt the P. for wagoH and dis- liiirsi'iiientH an master of the vckhcI. In answer to the master's rei|uest when abroad for a statement of liis account and for pay- ment, the managing owner seni the nuister bis individual jjromissory note for *S()(), payaldc with interest, on aeeount of the wages. The managing owner suiiseiiuently liecame insolvent Tlie master, tm Ids re- turn to St. John, X. H., demanded payment from the owners of his wagen and disburHe- ments, the sum claimed ineluding the am- ount of the promissory note. The owners, by their counter ehiini, sought to set-oil' against the master's claim, among other tilings, the amount of the promissory note; but Held, That the master, imder the cir- eumstanres of the ease, had not lost his lien u|)on the vessel. Tlie set-off" was rejected, and the plaintiff" held entitled to recover, with costs. The Plover, 129. See note to this case, ante, 134, where the English, American and Canadian cases are cited. 2. The House of Lords, in The Sara, 14 App. Cas. 209, decided that a master had no lien for his wages and disbursements, but it was subsequently given by the Merchant Shipping Act, 1889 (Imp.), ante, p. 8o. The same law now obtains by legislation in Canada as respects the inland waters, p. 370. 3. As to priorities of liens, see note to The Borzone, p. 118. MARSHAL — Appointment of. See Ad- miralty Act, 1891, 402. MISDEMEANOR. See Intemperanck. MORTGAGE. — Vice-Admiralty Courts have jurisdiction in respect of any mortgage when the ship lias been sold by a decree of the Court, and the proceeds are under its control. 3 & 4 Vict. c. 65, s. 3, p. 315; 24 Vict. c. 10, s. 11, p. 350. MUTUAL FAULT. See Damages — Dimsion of. MOORING.— 2' Ae Frier, 180. i NAVIGATION.— The same rules <.f navi- gation, and the siune precautiims for avoid- : iiig ('(dlisions and ntlicr accidents as .irc now adopted in the I nitcd Kingihim and other co\intrieH, are also adopted in the Dominion '■ of Canada. R. S, C. c. 79, p. 372. See Isi.ANli Naviijation. NECESSAHIIsS. -As to priority of pay- ment. The JhtrziiKi; ll(i, and note. i 2. For present jurisdiction as to necessar- I iew, see 3 & 4 Viit. c. rt5, s. ti, p. 3Ui; and i 54 & 55 Vict. c. 27, s. 2, sub-see. 2, p. 387. ORDERS IN COINCIL. — Approving Rules of 1893, 409, 410. I PILOTAGE.— Vice-Admiralty Courts have I jurisdiction in respect of pilotage (2(i Viet. ' c. 24, s. 10). This .^ct is now repealed by Colonial Courts of Adndralty Act, 1890; ; but the Court has the same jurisdiction over j pilotage as the High Court of Admiralty. ] Under the Merchant Shipping Act, 1854, s. 2, "seaman" includes pilot. I PIRACY.— See The Chesapeake, 208. j PLEADINGS.— It is a rule of the Admir- alty that where there is a nuiterial variant e ; between the allegations of the libel and tlie evidence, the party so alleging is not en- ' titled to recover, although not in fault, and fault is established against the other vessel. The Emma K. Smalley, lOtJ. See note to this ca.se, p. 114; also untr, p. 154. 2. Under R. (il, every action now shall be heard without pleadings unless the judge shall otherwise order, p. 425. POSSESSION.— Power given to any Court, having Admiralty jurisdiction in any of Her Majesty's dominions, to remove the master of any ship, being within the juris- diction of such Court, and to appoint a new master in his stead. See 17 & 18 Vict. c. 104, s. 240. 2. By 26 Vict. c. 24, s. 10, the jurisdiction of the Vice-Admiralty Courts was extended to claims between owners of any ship regis- tered in tlie possession in which the Court is establisf ^d touching the ownership, pos- (iity INDKX. Pt»«<«KHHioN.— 0)n Hliip. Tliiw Act is now ri*|H>iil(>il, ami the Jurisdiction \h under 24 V'ict. c. 24, h. H. |i. :!4y. See I'ritcliard'H Dij^iwl for Lord Htoweli'» .jiid'^'mentH iih to the nature of this jurisdic- tion prior to the hitter Act. I'UACTK.'K.- Now governed by Rules of isit:?, p. 4l;t. I'KIOKITY OK MKNS.— 77..' liorznn,; 118. PI{IVYC()UNCIL-.Iu.lKinent of, rcvers- iiiK decision of Vice-Admiralty Coint. 77ir Ad loir, 72. See JrniciAi. CoMMirrEE. I'UOOK. — Kvideiico must support plead- ing's. The I'Jiiiniit K. Sniiillei/, lOli. K.\KTS. — As to navif^atiiiK and anchoring in navigable river in Canada (SI N'ict.c. V. D.. 24s. 2 For rules relating; to navigation of Canadian waters. U. S. (-. c. 7'.l, ;i72. SALVAGE.— The St. <;. having sailed from St. John, N. li., with a cargo of deals, liound for Liverpool, went ashore at I)ip])cr Harbor, about twenty-live or thirty miles below St. John. The ship's agents at the lalier ])lace engaged two lugs, the S. K. and the L., to go down and pull her ofl'. J-'or this service they were to receive an agreed sum, and the S. K. was to receive a further sum, in case tlu' vessel was got oilj for (ow- ing her back to St. Jolin. When the tugs reached the vessel it was found that more men and appliances were needed, and the S. K. returned to St. John for a steam pump and other appliances. The L., at the re- quest of tiie muster of the vessel, reii\ained to tend on the ship. During the absence of the S. K. the vessel was floated, and through the exertions of the L. the ship was pre- vented from going on tlie rocks. JleUI, That the services rendered wr re more than towage services, and that tlu- L. was entitled to salvage reward. The Si. (^oiul, 140. 2 A salvage service having been rendered a foreign "essel, which had gone ashore near Point Escuminae, near Miramichi Hay, in an action for the recovery of the amount of such service. Jli-ld, That the "osls shoidd be paid lirst out of the finid in Court, then the amount awanied as salvage services, anil any balance to the owners, as the seanu-ii had been paid. 'The \(inl<. SALVORS.— See The St. Chad, and note, 140. SECFRITY FOH COSTS. — A collision to )k place in New York Hay between The Munj and Carrie, an American registered vessel, and The Oakfield, a steamship regis- tered at the oort of (Jlasgow, (Jreat Hritain. The plaintitr, a resident of the city of New York, L'nited States, and owner of the Ame- rican vessel, caused The Oakfield to be ar- rested in a cause of damage by collision at St. John, N. B,, by process issued out of the registry of the New Hrunswick Admiralty District. The defendants applied for secn- Sk«" rityl wasj vit (| the bea| pli.l IXDKX. M9 <\ HTTP more tliiiii ''"•' I.. HUH i'lUitlci) »V. (.7ouil, 140. k'itiK I't'cn rcndor,.,! Iiiid ^r(„„. aHhoic !'■ Mirainiclii J{„y, •''■y of ilic ninoiint "t the "ONls should '"' ill <''>iJrt, tlict) viiKC NorvicpH, niid <''*, iiH the HeainiMi "lid tht! .A.— were >'lli of tht' hiirh.r 'y «•(.«• fuHtfriid ii>,'ht t.rokf lo,,M- ('<»miii|[f M, That tlie >e circiiinsfances dtlioiigh the tp.j,' I line to the J'., '!» rendered Iut, 'ind that the K-eed .separately IS tlie A. in the e note, 145. '/oud, and note, — A colli.sinn y between Thr can re^'istered ^unship regis- y collision at led out of the '!< Admiralty led for Hecii- SKcrniTY Kou ('itHTH.—Conlinned, rity foretiNtH, on ihe (ground tliiit the |>laintit!' was a iion-reHidtiil. 'I'he |ilaintifl' liy atlida- vit (lerlartMl IiIm intention to remain within the jiiriNtliction until hix itnit wiih linally heard and detertninetl, and reHiHte, rule (>, of the Kn^- lisli Judicature Act, |MM.'{, apjilied, and that under tlie Canadian .\diniiiilty rules of IHW.'i, ( >nler ()■") of the Kn;;lish IliKli Court nuist govern The case of Michifh v. Tlif Empire Palace, Ll(l.,m I.. T. i:}2; 8 Times, L. li. 378, was pressed. //<•/»/, hy Tuck, J., that there nuist lie a slay of proceedings until security to the atnount of H^'MH) was jjiven. The learned jud^je, in the course of his judg- ment, stated that under the authority of Iieili)H<'i'8. SIIIPWliHCKS— As to reciprocal rights of Canadian and I'nited States vessels. 184. STATUTES.— /m/.. 27 Edw. 3,e. 13: 147. 13 Rich. 2, c. 5 : 4S, (;2. 15 Rich. 2, c. 3 : 63. 2 Hen. 4, e. 11 : ()3. 28 Hen. 8, c. 1.') : 261. 21 .las. 1, c. K), ,s. t) : 82. 11 iS: 12 \Vm. 3, c. 7 : 201. 12 Anne, e. IS : 143. 4 Geo. 1, e. 12 : 148. 5 Geo. 2, c. 7 : 333. 26 (Jeo. 2, c. 19: 148. 14 Geo. 3, c. 83 : 323. 14 Geo. 3, e. 79 : 336. 14 Geo. 3, c. 88 : 323. ISGeo. 3, c. 12: 323. 31 (ieo. 3, c. 31 : 323. 37 Geo. 3, c. 119:3.36. 43 Cieo. 3, e. 138 : 323. HtATI TKM.— rOH^'lM(«(/, 4:. Geo. 3. c. 121 :3. 6 Geo. 4, c. It; : 300. 7 Geo. 4, c. 38 : 261. 2 iS; 3 Wni. 4, c. .".1 : 399. 3 iV; 4 Will. 4, c. 41 : 6.-), 399. 6 »S: ti Will. 4, c. 62 : 336. 6 Will. 4, c. 36 : 2')3. 1 Vict. c. 90 : 331. 1 »S: 2 Vict. c. 9 : 323. 2 iS: 3 Vict. e. 53 : 323. 3 1^ 4 Vict. c. 3.') : 324. 3 iS: I Vict. c. ti.") : 48, "il, 103, 134 160, 162, 189, 314. 3 tV: 4 Vict. c. 78 : 324. 6 iS: 7 Vict. c. 22 : 337. 6 <<: 7 Vict. c. 34 : 342. 6 A 7 Viet. c. 7.") : 296. 6 k 7 Vict. c. 38 : 399. 6 i^ 7 \'ict. e. 76 : 210, 252, 258, 283. 7 A 8 Vict. c. 66 : 328. 7 iS: 8 Vict. c. 1 12, s. Ki : 8r), .339. 7 I'li 8 Vict. c. 69 : 400. 8t%9 Vict. e. 120: 296, 299. 9 A: 10 Vict. e. 93: -53, 167. 10 ^ 11 \ict. c. 71 : 324. 10 i^: 11 Vict. c. 83 : .328. 11 iV- 12 Vict, c, 5(i : 324, 11 \' 12 Vh't. c. ^:^ : 328. 12 ^ 13 Viet. e. 29: 331. 12iV 13 Viet. e. 96: 288,324. 13 iS: 14 Vict. c. 26 : 147. 1.') iV 16 Vict. e. 21 : 324. \{\&. 17 Vict. c. 48 : ,331. 17 cV: 18 Viet. c. 104 : 24, -VJ, 79, 83, 127, 134, 151, 339. 17 iS: 18 Vict. c. 120 : .339. 17 1^18 Vict. c. 118 : 324. IS 1^- 19 Vict. c. 3 :338. 18 & 111 \'ict. c. 90 : 100. 18 iS: 19 N'ict. e. 91 : 327, 3;;9. 20 iS: 21 Vict. e. 39 : 329. 20&21 Vict. e. 147 : 152. 21 A 22 Vict. e. 99:331. 22 i^ 23 Vict. c. 10 : 324. 23 i^: 24 Vict. c. 88 : 327. 700 IXDKX. ■:i 1 147. 53. 341. 332. 338. fiTATVTRS.—Cnntinni'.d 24 Viet. c. 10 (1861) 161,348. 24i»t 25 Vict. c. 10 : 25 & 26 Vict. c. 20 : 25 & 26 Vict. c. 63 : 199, 341. 26 & 27 Vict. c. 24 (1863) 157, 35<;, 401. 27 & 28 Vict. c. 25 27 A 28 Vict. c. 95 28 & 29 Vict. c. 14 28 & 29 Vict. c. 63 28 & 29 Vict. 0. 64 30&31 Vict. 0. 3: 331. 30 & 31 Vict. c. 16 : 338. 30 & 31 Vict. c. 45 : 401. 30*&31 Vict. c. 114,3.31 30 A 31 Vict. c. 124 : 198. 31 & 32 Vict. c. 71 : 81. 36 Vict. c. 129, s. 56 : 79. 36&37 Vict. 0.59 : 401. 36 & 37 Vict. c. 66 36 & 37 Vict. c. 85 36 & 37 Vict. c. 88 38 &39 Vict. c. 77 38 & 39 Vict. c. 51 52 & 53 Vict. 0. 46 53 & 54 Vict. c. 27 : 48,51, 79, 93, 158, 327. 33S. 25, 68, 93, 152, 190, 45, 65, 79, 83, 38. 27, 99. 25, 78, 87, 114, 199. 401. 82. 401. 134. 65, 84, 386. Canadian. 31 Vict. c. . ' (R. S. C. c. 79) : 22, 25. 31 Vict. c. 61 : 200, 206. 33 Vict. c. 15 : 206. 36 Vict. c. 55, s. 24 (R. S. C. c. 81, s. 43) : lt>6. 36 Vict. c. 129, 8. 56 (R. S. C. c. 74, s. 56) : 79, 131. 37 Vict. c. 27 : 84. 4C Vict. c. 2 (h. S. C. 137) : 166. 43 Viet. c. 29, s. 6 (R. S. C. c. 79) : 26, 86, 110, 135, 199. R. S. C. c. 74 (Seamen's Act) : 361. R, S. C. c, 79 (Navigation Act) : 372. 63 & 54 Vict. c. 27 (Colonial Courts Act) : 387. 54 & 55 Vict. c. 29 (Admiralty Act) : 44, 65, 84, 207, 402. 55 & 56 Vict. c. 4 : 184. Statl'TKS. — Conlin ned, Ontario. R. .S. Ont. c. 128: 166. New Brunswick. 19 Vict. c. 42: 251, 253, 274. United Statfu. Act of Congress (Extradition) : 236. Act of Congress, 1890 ( Wrecits, etc.) : 184. j For list of statutes relating to Admiraltr, see p. 306. [ STEAM KR. — The passenger steamer S., sailing up the river St. John, met the steam- tug N. coming down, near Akerley's Point, where the river is about lialf a mile wide. The S. was near the western shore, which was on her port side going up ; the N. about one hundred and fifty yards from the same side of the river. The S., by keeping her course when she first sighted the N., might have avoided the collision, but instead ported her helm, whieli gave her a diagonal course to starboard towards the east side, and as a result struck the N. on the starboard quarter and sank her. Hdd, That the S. was to blame, and liable for the damages sustained ; also held that when two vessels are meeting end on, or nearly so, the rule to port helm may be departed from, where there are rea- sonable grounds for believing such course is necessary for safety, and consequently the N. was not to blame, immediately before the collision, for putting her helm to starboard. The Soulanges ; The Neptune, 1. 2. The tug G. was proceeding up the river St. John, and the tug V. coming down ; when near Swift Point they came into collision, and the V. sank. The G., at the time of the accident, was, contrary to the rules of navi- gation, near the westerly shore on the port side of the vessel ; the V. did not exhibit any masthead white light, as required by the regulations. Held, That both vessels were to blame; that the collision was occasioned l)artly by the omission of the V. to exhibit her masthead white light, but principally by the course of the G., and a moiety of the damages was given to the V. with costs. The G'eneral, 86. 110. \swick. >^, -'74. tnt>'.s. ailition) : 236. j( Wrecks, etc.) : 184. pting to Admiraltv, 'enger steamer S.. hn, met the steam- r Akerley's Point, ' lialf a mile wide, stern shore, wJiicJi ?"P; the N. about rds from tlie same- 5-, by keeping her 'ted the N., mig},t but instead ported « diagonal course east side, and as a starboard quarter 'at the S. was to amages sustained ; Jssels are meeting "'e to port helm ere there are rea- ng such course is ^consequently the liately before the 'Jm to starboard. ing up the river ing down ; when ■ into collision, the time of the ' r.des of navi- re on the port >d not exhibit equired by the 1 vessels were ''as occasioned V. to exhibit It principally moiety of the • with costs. INDEX. 701 STEERING AND SAILING RULES. .S72 TABLE OF FEES. — Hy 2(i Vict, c 24. authority was given to Her Majesty in Coun- cil from time to time to establish tables of fees. See p. '.^68. 2. For present law relating to the estab- lishment from time to time of tables of fees, see Colonial Courts of Admiralty Act, 1890, s.7, p. 391. 3. For table of fees now in force, see p. r)27. TITLE. — The Act 2() Vict. c. 24, s. 10. gave Vice-Admiralty Courts jurisdiction touching the title and ownership of any vessel regis- tered in the })ossession in which the Court is established. Prior to that Act they }iad no more than the ordinary jurisdiction pos- sessed by the High Court of Admiralty be- fore the passing of 3 & 4 Vict. c. (5o (1840). See the judgment in The Anstralid, 13 Moo. P. C. 132 (1859), on appeal from Vice- Ad- miralty Court of Hong Kong. The juris- diction is now governed by 24 Vict. c. 10, s. 8. p 349. TORTS. — The Enrlqui', 157, and note. TOWAGE. — Two vessels (the F. and the A.) were moored to a buoy on the north of the harbor of St. John, N. H. They were fastened (ogetiier, and during the nigiit broke loose by reason of tiie buoy becoming detached from its mooring, and they drifted bow foremost down the harbor. All on board the vessels were asleep. The plain- tiffs' tug gave the alarm to those on board the vessels, and, by fastening on to the A., towed both vessels out into the harbor and left them in a place of safety. Held, That the services riMiderod under the circum- stances were salvage services, and although the tug had not, in fact, fastened a line to the F., yet salvage services had been ren- dered he;-, for wliich she v.r.ii liable, and tliat the owners of the tug could proceed separ- ately against the F. without joining the A. in the action. The Frier, p. 180. 2. A tug-boat was engaged by the char- terers of a vessel, the E., to tow her from the harbor of St. .John, N. H., through the Falls, at the moutii of the river, beneath a To\v.\uE. — Contiinied. suspension bridge which spans the Falls ;it a point where the river (lows into the bai- bor. The vessel towed was chartered to carry a cargo of ice from the loading place above the Falls to New York, and the char- terers were to employ the tug and pay for the towage si "vices. The tug having waitetl to take another vessel in tow, together with the E., was too late in the tide, and in going under the bridge the topmast of the E. came into collision with the bridge and was dam- aged. Held, That the Court had jurisdic- tion to entertain the suit; that the delay of the tug in going through the Falls was evi- dence of negligence ; and the fug and owners were condemned in damii;i,es and costs. The M((gm the owners of his Its, the sum claimed of the promissory tlieir counter-claim, the niiister's claim, the amount of the 'eld, That the master, BS of the case, had he vessel. The set- e plaintiff held en- costs. The Plover, vessel registered in •t owner, was dis- rt where tiie other e caused tlie vessel ie of subtraction of inder §200. Held, jurisdiction u..der an.), and the cause ts. The Jonathan ERRATA. Paue Line Fob Eeai> 25 10 from top c. .304 c. 104 26 21 6 App. Cas. 5 App. Cas. 43 13 from bottom Kleinwort in Kleinwort v. 120 13 from top Cargo res Schiller Cargo ex Schiller 128 11 from bottom Defendant Plaintitr 176 Notel Lush. 130 Lush. 103 190 12 from bottom The Arnerica The American 385 6 from top The P. Carland The P. Caland 584 3 " Consolate Consolato 633 10 from bottom The Thomas The. Thomas Wilson. 685 7 from top Belle Mmige Bella Miiilffe On p. Ixiv of Iptrodiutioii, i:! lines from bottom, for " barristers ai d other officers." read ' surrogates, proctors, and other officers in the Court of ArcLo.i." V. tON OF Terms. of Canadian and ting to reciprocal note to 27te Frier,