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I.SVOLVINU ^Jucstioiis of lilavitimc ^.'aixr OF FltEQUKNT UCCUKKENC'K IN THE TRADE AND NAVIGATION OF THE RIVER AND GULF OF ST. LAWRENCE. WITH AN APPENDIX CONTAINING MATTER FOR REFERENCE I'ARTRTLARLY d'ON THE SUBJECT OF MARITIMK JURISDICTION EXERCISED BY THE VICE-ADMIRALTY COURTS. ElUTKI) IIV GEORGE OKILL STUART, ESQ., Q.C. VOL. IL LONDON : STEVENS & SONS, 119, CHANCERY LANE, AV.C. iiatu lioo&srilrrs aiiD iDubUstjrrs. 1875. LONDON ; „H,U.RIKV, AOSP.W, i CO.. PnlNT.BS WH.TEnOARS. PREFACE. Since tho puhlioatiou in 1858, of easos detor- mincd in tho Conrt of Vico-Adinirulty at Qncboc, its jnrisdiction, wliicli had been extended by the statute 2 Will. lY. c. 51, was further enlarj^nMl by the Imperial Act, 2G Vict. c. 24. In the interval, between the year above-mentioned, and the present, these decisions, selected from a larger number, were rendered and arc published as a "Second Series. The duties of Judge of the Vice-Admiralty Court at Quebec were discharged by the late Mr. Hexry Black from the year 1830 until his death in 1873. His decisions to bo found ni this, as well as those composing a previous volume, are marked with the precision and accuracy, and are conspicuous for the sound judgment and legal learning which characterised the opinions of this emim^nt and dis- tinguished advocate, and which, universally, carried conviction to the public and professional mind. The merit of his decisions in the Vice-Admiralty Court at Quebec may be inferred from the fact that, during the period of thirty-six years, his tenure of office, not one was either reversed or even modified in appeal. An Admiralty jurisdiction in the Dominion of Canada concerns, very materially, the trade and L».tv|-ar»iiuajlurdiitii!4»ltt'iirtMfciitit|«iitwiWiwuM>A;4i^u-MiittiVMi«*»tti4« .•^■m%'. ■-.>. VI nirrAcr;. imvigation, not only of the river and Gulf of St. fiuwroncc, but also that of tlic Groat Wostcvn Tiakos and tlio link(* fonnooting tlioiu with tl;o tide waters. As laws are requinito to protect, improve, and extend this trade and navif;ation, so is an adequate and efficient maritime jurisdiction required to enforce them. Under the Crown of Franco thorn appears to have heen a Court of Admiralty estahlished at Quebec -with powers n.oro e\t(>nsivc than ever claimed under the Cro^ni of England. This juris- diction was superseded, as well by the cession of Canada as by the express introdiutiim of tho Admiralty jurisdiction of Englan removed by an Act of Congress passed on the 2Gth of February, 184-"), riiia'Aci;. VII l)y which Iho jurisdiction of the Adiiiinilty Courts in the United Stutos over them, was placed on tlio same footiuf; as their jin'isdi( ;ion o\er tlu' liigli seas and tide waters. The Tiakes are, in tiuth, inland seas, Canada l)orders on one si(h^ and a foreijrn country on the otlu>r. Upon thoni there is u most (extensive trade as well hetween the two countries as h(>twe(!n plac(>s in each, and they arc now navigatcul hy vessels to and from I'hirope. In this trade there aro employed sailing and stinun vessels, foreign and British, of very largo size, and under cinnimstances of navigation difY(>ring, in no respect, as to its hazards and incidents, from the connnerco of the ocean. The jealousy which once existed hetwoen the Admiralty Courts and those f>f connnon law has long ceased, insomuch, that by the Imperial Act, 3 & 4 Vict. c. 65, s. C, the jurisdiction of the Admiralty in England has been extended to cases of niaritime servic(\s, contracts, and torts in navi- gable waters, though arising within the body of a county and within the jurisdiction of the Courts of Common Law. Tlic principal advantage of the Admiralty jiu-isdiction consists in the Courts having the power and the machinery of proceeding in rem. The Courts of the United States, on the south side the Lakes, possess the advantage of this remedy, while those of Canada, on the north, do not ; so that a lU'itish ship, doing damage to an American vessel, may be attached in an American port, while an American ship, causing damage to a British vessel, is not subject to a similar process in a Dominion Court. Under these cii'cumstauees vm riilOFACK. the restoring of an Adiiuralty jurisdiction in Canada over the Western Lakes, if not now, soon will be a matter of necessity. Ey the Imperial Statntes 24 Vict. c. 10, of 1861, and the 20 Vict. c. 24, passed in 1863, the juris- diction of the High Court of Admiralty of England and that of the Vice- Admiralty C'ourts were mnch enlarged. The former applies to the High Court of Admiralty of England and the latter to the Vice- Admiralty Courts. Upon a comparison of these statutes, both in this volume; it will be found that where some necessary and essential powers are vested in the High Court of Admiralty they have been Avilhheld from the Courts of Vice- Admiralty Avithout perhaps adequate cause. An opinion upon this subject, expressed by the Chief Justice of Nova Scotia sitting as Judge of the Court of Vice- Admiralty at Halifax, which is entitled to the greater weight as that of a Judge discharging duties in the Conunon Law Com-ts as well as in the Vice-Admiralty Court, where his position en- ables him the better to see the proper jurisdiction for each, is to be found in the Appendix to these Eeports. This, and a further exiiression of opinion, in the cases of the "City of Petersburg" and the " Three Sisters," as to the necessity of new Rules for the Courts of Vice-Admiralty, will be read with interest as coming from one, who not only discharges the duties of two high judicial offices, but has always held a high and prominc>nt position as well at the Bar as when in the Legislatm-e and PKEl'ACE. IX Executive Government of Xova Scotiii. Appendix, p. 348 et serj., and 374. These Eeports, with an Appendix containing matter for reference, particularly upon the subject of maritime jurisdiction exercised by the Vice- Admiralty Courts, in a smaller compass than is perhaps to be found elsewhere, it is hoped will bo useful to the public and the profession. London, 25th Januanj, 1S75. TABLE OF CASES REPORTED. In the Matter of Charles Drolet Pahnyra — Lovitt . Marathon — Horst . Martha Sophia — Bouchot Margaret— Clark Haiclee — Kempthorn . EUerslie — Vickerman Ailsa — Alexander Anne Johanne— Larsen . Aurora — Morrison Lotus — Clark . Arabian — Simard Alma — Brodie. Royal Middy — Davison James McKenzie — Boiiillu Courier — Wyatt . Wasliington Irving — Durrant Liberty — Ouellet . Marie Victoria — Ellis British Lion— Mann . Anglo-Saxou — Westgarth Adonis — Lavoie . Rockaway — Bossance Secret — Davison . McLeod — "Walters . Oriental — Morris . Hibernian— Smith . Germany — Graham City of Quebec — Counell Samuel Gilbert . Franklin S. Sclieuck Tornado —Craw ford . Lome — Martin PAGE Registrar's Fees . . 1 Salvage ... 4 Mariner's Wages . . Collision ... 14 Collision . . . 19 Possession. . . 25 Mariner's Wages . . 35 Collision ... 38 Collision . . . 43 Collision ... 52 Collision . . . 58 Collision ... 72 Collision . . . 72 Salvage ... 82 Collision . . . 87 Collision . . .91 Mariner's Wages . . 97 Collision . . . 102 Salvage . . . 109 Towage . . .114 Collision . . . 117 Bottomry . . .125 Collision . . . 129 Collision . . . 133 Collision . . . 140 Collision . . . 144 Collision . . . 148 Collision . . .158 Collision . . . 158 Forfeiture — Breach of the Fishery Laws . 167 Forfeiture — Breach of the Fishery Laws . Ifi9 Collision . ' . .172 Collision . . . 177 Xll TAIiLK OF CASES. Pomona — Bnico Abtiif^oldie — Bruce . . . . . i'riile of Eiij^'land — Bean Muvgaretha Stevenson . . . . Gordon — Crosby Latona — Lewis Harold Haarfager— Helliesen America —Harries Thames— Hyile Tlie American Transportation Company V, Moore, Foute & Company . . City of Peterslniig, from Nova Scotia , Wavelet Chase Three Sisters PACK Salvage . . 18:J Collision . 187 Salvage . . 189 Jurisdiction — Mariner's Contract . . 192 Collision . , 198 Mariner's Contract , 203 Collision . . 208 Salvage . 214 Collision . . 222 Opinion of the Su- preme Court of Mi- chigan as to Wes- tern Lakes of North America being in- land . . App. Jurisdiction — Mari- ner's Contract. A])p. Jurisdiction — Col- lision . . App. Jurisdiction — damage donebyasliij). Ai)p. Bottomry — Salvage and Wages . App. 329 343 354 361 371 CASES IN THE VICE-ADMIRALTY COURT FOR LOWER CANADA. 21s^ June, 1859. In the Matter of Charles Drolet. Registrar's Fees. As to how far the Court will interfere, on a complaint made by the Registrar against proctors, for non-payment of his fees which they have received from their clients, and have not paid over to him. Judgment.— //o?i. Henry Black This is a case of .some importance to the officers and practitioners of the Court, inasmuch as it is founded on a complaint made by the registrar against two of the proctors for non-payment of his fees, which he alleges by his petition that they have received from their clients and have not paid over to him. Tliis charge is not sub- stantiated by affidavit as any charge implicating the character of a practitioner ought invariably to be ; and on this ground alone it would be the duty of the Court to dismiss the application. But it is defec+ive also in another respect ; for, instead of directly alle^^ing that his fees have been received by the proctors, the registrar merely tates " that he hath every reason to believe and does n /r CASES IN THE VICE-ADMIKALTY COURT vorily believe" that they have done so. An indiroot allegation of this kind is manifestly irregular— in every charge against the professional conduct or character of an ofHcer of the Court, the facts ought to be alleged in the most direct and positive terms. The Court disclaims all jurisdiction in the matter of fees. The registrar may at his option reiiuiro them when the service is performed, or he may give credit, and then his recourse, if they are not paid, is in the ordinai-y courts of the country (a). But the non-paying over of fees which have bci n charged by a proctor against his client as being due to the registrar, and which have been actually received by him for the registrar, is a breach of discipline tending to lower the character of the Court, which has always cognizance in a summary manner of the conduct of its officers (b) ; and without pronouncing any opinion as to statements made in argument that the registrar had already adopted another remedy, the Court, in dismissing the present application, cannot but express an earnest wish that there may be no occasion for the exercise of its authority in this or any similar case. No such case has come before it since I have had the honour of presiding over it (now some twenty-three years), and in this instance I have reason to think that the ditiference between the parties has arisen rather from a personal misunder- standing than from intention to commit any wrong (c). Drnlet in person. Andretvs for Holt and Irvine. {(i) Pollard V. Gerard, 1 L. Eaj'm. 703 ; Ballard v. Gerard, 1 Salk. 333. (ft) Peddle v. Evans, 3 Ilagg. (Eccl.) 687-9 ; In the Goods of Lady Ilalton Finch, lb. 25o, 287 ; Leigh's case, Gib. 995, 3 Mod. 332 ; Prentice n. Prentice, 3 Phill. 311 ; Peddle v. Toller, 3 Hagg. 389; Sir J. Nicholl. (r) Proctors and advocates are officers of the law, held to the strictest integrity, and the best faith and honour to their cliculs and the Court. They are accountable to the Court for ran i.()wi;u canapa. thoir profos.sional oouduct, and iiro subject to 1)0 (l('i)rivo(l of thoir juivilogos and olHco, and otlinrwiao piini.shed, by attach- ment, fine, or iniprisoumoiit by the Court, for viohition of pro- fessional duty, or for such moral dulin(iuoncy as would bring into disroputo the ndininiMtration of juatico. 1 Ilnj,'. '>'i:i ; 1 W. Kob. ;j;jj, 'Ml; 2 Iluf,'. Kcc. 1!),>; 3 ling. Kcc. 0S7; Ibid. 253; 3 Thill. ;U1 ; Bott's Prac. 11, Vi, 14 ; Bonodiol's Ainoiican Ad- 1 .iralty Jurisdiction and Pi'aC' ticc, § ;53G. b 2 CASES IN TIIF. VIfK-Al>MIU.M.TY CorUT Friday, let Jidj, 1859. PALMYRA.— LoviTT. The PalmjTa sunk in tho St. Lawrence, was raised and saved by the machinery on board of the Dirigo, and tho great skill and expe- rience of her master and crew, .£1000 sterling awarded as salvage. Palmtra. This was a caii.se of salvage, promoted by Russell D. Bartlett, owner and master of the steamer Dirigo, for services rendered under the circumstances noticed in the following judgment of the Court : — JuDGMKNT. — ILtn. Henry Black. The Palmyra, a vessel of five hundred and eighty-six tons, having on board a cargo of about seven hundred and sixty tons of railway iron, sailed from the port of Newport in England for Quebec, on or about the 13th June, 1858, and reached tho lower part of the river St. Lawrence without accident; but, on the 31st of July, she ran ashore on Red Island Reef. She was taken off the reef by the steamer Princess Royal, which was sent down from Quebec to her assistance, and was proceeding towards Quebec in tow of the steamer, when, on the 5th of August, at about one o'clock in the morning, she struck on White Island Reef; she there dropped her anchor, and remained Avith about three feet of water under her for an hour and a half, when she parted her chains and went over part of the Reef, in doing which she knocked out her stern-po.st and received other damage, and in conse- quence she sank in about two ho-.irs and a half afterwards. White Island Reef is about ninety-six miles below Quebec, on the north side of the south channel of the river, which is there about eight miles and a half wide, being divided into two channels by the island, about five Foil LOWKU CANADA. miles from tlic south sliore, unci throe miles from the north shore; the Reef extends about three miles fnmi the isi.uul towards the north-cast. The place where the Palmyra lay is a very danf^crous one, and very much exposed to tlic prevailing winds and currents, and it is in evidence that had she floated, or had she been less heavy, she would liave been forced over the reef and lost. After she sank, the master left her, and proceeded to Quebec to obtain assistance, and to consult with Mr. Fry, the Lloyd's Agent, as to the best course to be pursued. It was agreed that one Glennie, a diver, should be em- ployed to go down to the Palmyra to inspect her bottom, and to report to Mr. Fry by telegraph the state in which he should find her ; but before he went down, Russell D. Bartlett, the promoter, having offered his services to save the vessel, an arrangement of some kind was made with him on the subject. The promoter was the owner and master of a steamer called the Dirigo, of one hundred and eighty tons burden, and one hundred and fifty horse power, provided with a very powerful steam pump, a diving apparatus, and machinery for raising vessels. She had on board besides the master, a crew consisting of a mate, two carpenters, tbi-ee smiths, one diver, two firemen, one engineer, four or five sailors, one steward, and one pilot, in all eighteen. She was a new vessel, and having never been tried, the promoter was anxious to show her powers. The result of an unusually large mass of evi- dence is to satisfy me, that the understanding between the promoter and the master of the Palmyra was, in effect, that if the promoter saved the ship or her cargo, he should be well remunerated, but that if he failed in his attempt, he sl\ould have no remuneration whatever. There appears to have been no agreement for any specific sum, and indeed, it was impossible to put any value upon the work, before kuowing the difficulties to be encountered. It WHS certain that he was to get nothing if he did not Paimtra. 6 CASES IN THE VICE-ADMIRALTY COURT Palmviu. save the vessel, and the risk ho thus ran is undouhtcdly an element to he taken into account in estimating the remuneration to which he was to be entitled if ho succeeded. It is proved that on tho 0th of August, the promoter, in the Dirigo, left Quebec for White Island Reef, with the crew already mentioned, taking down Glonnie, the diver, as far as the Pillars, and the master of the Palmyra. It is also proved to my satisfaction that the promoter, Avith great skill, ingenuity and perseverance, at great risk and expense, — extending even to obtaining from Quebec new castings and machinery for his steam pump, and bringing down a steamer from Quebec on his own respon- sibility, when the master of the Palmyra refused to do so, alleging that the case was hopeless, — did raise and save the Palmyra and her cargo, and that he brought her to a safe place at the Brandy Pots. That this was effected by tiie very ingenious, novel and excellent machinery on board the Dirigo, and the great skill and experience of her master and crew, most of whom were picked men and excellent mechanics ; and that all this was done when the master of the Palmyra was ready to aban(' m the vessel as utterly lost, and when even her cargo could only have been partially saved by diving, at a cost of from forty to seventy-five per cent., and this, only pro- vided the weather continued moderate for a sufficient length of time. The fact that the master stripped the vessel of her rigging and sent it to Quebec, places in a very strong light his opinion of lier desperate position ; and Mr. Menzies, Lloyd's Surveyor for the river St. Lawrence, says, in his evidence in the case, that he con- siders the .salvage of the vessel from so 'ery dangerous a place as White Island Reef a very great feat, which could only be achieved by powerful machinery and men of experience. To the same effect is the evidence of 1 it )U'(lly g tlio if ho noter, with '? (, tho ■■ inyni. aoter, t risk 1 1 fi\ \i\ft uuuuc , and spon- do so, . [{ save • to a ed by :y on ICC of men done inC m could )st of pro- icient d the j in a ition ; '.r St. i con- feious which I men ice of Foil I,()Wi;n CANADA. Oourdfuu, tho Inspector of Pilots, who saw tho I'ulinyra as well on White Island Ucef ns at the Tiandy Tots. Tlie Dirigo inid the crew were employed in these Berviccs altout thirty days. It is proved that the pro- moter declared himself ready and able to bring the Paiiuyra to Quebec, remaining alongside of her with tho Dirigo and her pumping apparatus, antl working it in the same manner as he had done in raising her and bringing her from White Island Reef to the Brandy Pt)ts; and though there is some difterence of opinion on this point among the witnesses, there seems to me no reason to doui)t that his efforts would have been as successful as they had previously been. After the Palmyra was put in a safe place at the Brandy Pots, and after the master had expressed his satisfaction with tho success of the promoter's labours, Mr. Fry and the master sent down from Quebec to the Brandy Pots, Mr. Dinning, a gentleman extensively engaged in ship building, and althouM7suraneeon them while engagcid in saving wrecks. The actual wear and tear jnust have been con- siderable. Ifcr the services of the promoter, the use of hiv vessel and machinery, risk, interest, and wear and tear, I think he is fairly entitled to a further sum of not less than .1700 currency, and I accordingly award to the promoter for salvage services to the Palmyra the sum of one thousand pounds sterling to be apportioned upon the ship and cargo according to their respective a])[)raised value, with costs, Jones and Ilcuni, tor Russell D. Bartlett. Holt and Iri'iiie, for owners of ship. Vdiihvruiis, for ownera of cargo. l*m I.OWKII (ANAPA. Iii/, I2tli Xoi'rmhrr, 1H')(). MAIlATIfON.— lli.KsT. WIh'H* vr)yaf; collies boforo tlio Couit upon a rd ivnco inado, under the authority of the Mcichant Shippiiij^ Act, l»y tlie inagistrato before whom the original suit for waives was brouglit. In order to prevent desertion and S(|iiandering their wages abroad, and leaving their families in distress, tlie Act provides that no seaman who is t'ngngetl for a voyage or engagement wliich i^ to termi- nate in the United Kingdom shall be entitled to sue in any Court al)road for wages, imless he is discharged witli such sanction as is required by the Act, and \ ith the written consent of the master, or proves such ill u ige on the part of the master, or by his authority, as to w irrant reasonable appi<'hgnsion of danger to the life of such s( aman, if he were to remain on boaid, — and the question .hich arose before the magistrate, and upon which he entertained doubts, is whether the complainant was or was not legally engaged under articles containing the particulars as tt rms thereof, reiorelaiul (a) declared the words " Continent of Europe," to be too indefinite to form a description of the " nature of the voyage," in the case of that ship; and the words "North and South America," are manifestly still more indefinite, including as they do, not only the whole coutinent]of America, from the extreme north-east of Labrador, round by Cape Horn, to the extreme north-west of Russian America, with every possible variety of climate, but also every island which is geographically within that vast division of the world known as America. Dr. Lushington says, " In interpreting the Act, the words ' nature of the voyage,' must have such a rational construction as to answer the main and leading purpose for which they were framed, namely, to give the mariner a fair intimation of the nature of the service in which he was about to engage himself when he signed the sh'Vs articles." In this opinion I perfectly concur, and inasmuch as the terms "North and South America," do not seem to me f.o give any such intimation, and as there is nothing to shew that any such comprehensive ambiguity was required for the purposes of trade, I am of opinion that the statute has not been complied with as regards the description of the nature of the voyage, and that the com- plainant is not here under a legal engagement under the Act, and therefore was at liberty to sue for wages before («) 1 W. Eob. p. 216. murmMfrnmh FOE LOWER CANADA. 11 the magistrate. In this view of the case it becomes un- Mahathon. necessary to consider the question, whether a voyage whieli may terminate on " the continent of Europe between the river Elbe and Brest," is a voyage which is to terminate in the United Kingdom, though I am inclined to think that it is not. It is much to be regretted that owners and masters of vessels are not more careful in the description of the voyage for which the ship's articles are drawn up ; there can be no fair advantage in making the description of the voyage ambiguous, or so large as not to give the seaman that knowledge of the service he undertakes to perform, to which the law considers him entitled, — a voyage to " North and South America," is in fact little more definite than a voyage to any part of the world {b). Secretan and Dunbar, for the Promoter. O'Farrcll, for the Owners. Note. — When in the .shipping articles of an English vessel, the voyage was described to be from the port of Liverpool to Savannah, and any other port or ports in the United States of America, and any port or ports in British North America, and any port or ports in the West India Islands, at the discretion of the master, or consignees, as freight or cargo may offer, and back to her final port of discharge, of Great Britain and Ireland ; term of time on the voyage not to exceed twelve months : Held, that the voyage intended was confined to the ports on the eastern shore of the continent, and that the articles did not authorise a voyage to San Francisco, on the north-west coast. The Ada, Davies' Rep. D. C. of U.S. for the District of Maine, p. 407. " Within the words of the description of this voyage, the {h) The Varuna, L. CanaJa, Ilagg. 317 ; Tho George Ilome,. V. A. 11. 357 ; Tho Minerva, 1 1 Ilagg. 376. 12 CASES IN THE VICE-ADMIRALTY COUHT JrAiiATMoN. master might carry his crew to any port in British North ^ • America. But the Britisli possessions extend across the whole breadth of tlie continent, and without going beyond tlie literal sense of the language of the contract, he might carry them on a voyage to the extreme north-west coast. Can it be imagined that the owners, when they prepared this shipping paper to read to the crew, supposed, unless some verbal explanations were given at the time, that the men would understand that they were binding themselves to go a voyage to the south of the Colombia river, or to Vancouver's Island, if the master chose to carry them there ? The description would naturally suggest to them a voyage to those ports which were familiar to the com- merce of their country, and which were frequently and ordinarily visited for the purposes of trade ; and, in the popular and usual sense, they would suggest nothing more. That is, it would be taken to be a voyage in which the vessel might visit any of the American or British ports on the eastern shore of the continent. " This is the interpretation that I should have given to the contract, if the description of the voyage had terminated with merely naming the ports which might be visited, in the order in which they stand in the shipping articles. They would, without some further explanations were given, sug- gest to the seamen a voyage embracing the ports on the eastern shore of the continent and nothing more. It was justly urged, by the counsel for the libellants, that if there is a fair and reasonable doubt as to the true meaning of the articles, the seamen are on every principle entitled to claim a construction favourable to themselves. It is the owners Avho give the description of the voyage, and on general principles applying to all contracts, if the language is ambiguous or uncertain in its meaning, the construction shall be against the party who uses it, because he is bound to express himself clearly ; and this principle applies with all its force to contracts between owners, who are alwavs FOR LOWER CAN-ADA. men conversant in business, and shrewd and watchful in hooking to their own interests, and seamen, who are pro- verbially careless, improvident, and ignorant. The dis- parity in the condition of the parties imposes on the Court a duty to take care that the improvidence of sea- men is not entrapped by the superior watchfulness and sagacity of owners into engagements tliat they did not intend to make." 13 Marathon. Judge Ware, in The Ada, Davies' Rop., p. 412. 11 CASKS IN- TUV. Vlf'E-ADMIHAr/rV COIIiT Mahtiia SiiI'llIA. 2oth November, 1859. MARTHA SOPHIA— BoucHOT. Trinihj House Regulations, Lights, Collision. Tlio noTi-complianco by a vessel with the Trinity House Regula- tions, as to the exhibition of lights, will not prevent the owners from recovering damages for injuries received from niiothor vessel by collision, if the olllcers of the latter vessel saw the former and knew her position. This was a cause promoted against the brigaiitiiie Martha Sophia, by tlie owner of tlie scliooner Diligenoo, for damage sustained by a collision in tlie liarbonr of Quebec. The facts of the case are fully adverted to in tlie following judgment : — • Judgment.— //oji. Henry Black. On the 4th of October, 1858, the schooner Diligence, of about 80 tons burden, owned by Jolm Maxham of Quebec, the promoter in this cause, having discharged a cargo of salt, at Point Levi, proceeded to the mouth of the St. Charles, in the harbour of Quebec, and there anchored. In tlie evening of tlie same day she was still at anchor, and, -fter dark, the master, Pierre Mogd, caused a bright light to be placed in the rigging of her foremast. This is distinctly proved by the evidence of the ma,ster, and of the two seamen who formed the crew ; — they describe tlie light and its position clearly, and their evidence is con- sistent and positive ; they say it was placed about ten or twelve feet above the deck. While the Diligence was in this position, and while she exhibited this light, at about half-past eight o'clock, the brigantine Martha Sopliia, in <()w of the steamer St. Louis, came down from Montreal, with a full cargo, with which sIk' was to prnceed to •mMm^'-ifm*^i'i''^ 'HM«^;*^ifittlH.if'i-i '^^ *' FOR I,On'ER CANADA. 15 Miramichi, in New Bnniswick. Both the lirigantine and the steamer were well lighted. After passing down the river below the India Wharf, and as Laflamme, one of the witnesses for the defence says, within 80 feet of the Dili- gence, which both he and the mate of the brigantine (Regis Mercier), another of the defendant's witnesses, say, they saw, — the tide was r-nning full ebb, and after pass- ing the Dilitrence as I have stated, the steamer and brig- antine turned up the river against the tide, and when at a distance above her, Avhich Mercier, mate of the brigan- tine, now thinks to have been about five arpents, but which he says he then thought appeared to him to be about eight or ten arpents, from the darkness of the night, and from his not seeing the light on board the Diligence — he ordered the brigantine's anchor to be let go, and cast off the tow rope by which she had been towed by the steamer. The Martha Sophia, drifting down with the ebb tide, and having no sail set, or any other means of con- trolling her movements, dragged her anchor, and, before it held, came down upon the Diligence, and ran foul of her, doing the damage for which this action is brought. The claim is resisted mainly on the ground that the Diligence ought, under the Trinity House Regulations of 1858, then in force, to have had two distinct lights, one in the larboai'tl fore-rigging, and another on the mizen peak, or in the mizen or main stai'board rigging, each of which lights ought to have been placed 20 feet above the deck. It is certain that she had not the two lights, but it seems also certain that she had one placed in the larboard fore-rigging, as required by the regulation, though some- what too low. Upon the subject of the one light there is some conflicting evidence, many of the witnesses for the defence saying there was no light at all exhibited by the Diligence ; but this evidence only goes to prove that they did not see it, whereas, on the other hand, it is po.sitivoly sworn by all the men on board the Diligence that a bright Martha SoriUA. k; CASKS IN Tin; vi(i'.-Ai>Mn!Ai;rv cocut. Martha Sol'lllA. V\i>;]\t was cxliibitod in tlie fore-riuffinf?. Tlioy swoar that tlu'y placed it tlicio tlicniselves ; and evidence that it was not seen by other parties, not on board the vessel, is clearly not entitled to the same weight as the positive testimony of the men who lighted and placed it. A ship's light is not an object so bright and conspicuous that it muyt necessarily be seen by persons whose eyes are not directed to it ; and the numerous lights ou board the steamer and the brigantine may have tended to prevent the people on board them from observing the single light on board the Diligence. The evidence, in my opinion, leaves no room to doubt that there was a light exhibited on board the Diligence, in such a position that it inust have been seen by the people of the steamer, and of the brigantine if a proper look-out had been kept by tliem. On the other hand, it is certain that the Diligence did not exhibit two lights, as the Trinity House Regu,lations required ; nor was the one light quite so high above the deck as pre- scribed. But it IS admitted that the Diligence was seen by those on board the steamer and the brigantine. Laflamme, a fireman of the steamer, Mercier, the mate of the brigantine, and Beauchemin, the pilot of the steamer, — all witnesses for the defence, — distinctly say they saw her and passed at a short distance from her, in coming up the river against the tide, after passing below her to make the turn. The witnesses for the defence differ as to the distance at which they were from the Diligence when they cast off the brigantine. Mercier says, he thinks now they were about five arpents from her, while the pilot, Beauchemin, estimates the distance at about an arpent and a lialf, the Diligence being to the north and below the brigantine. Mercier says he thought then that they were further from her, but Beauchemin does not so qualify his estimate of the distance, or say that he was deceived as to the distance l)y want of a light on board the Dili, gonce. F(in r.OWFI! CANADA. 17 When a vessel .at anclior is run down by anotlicr vessel, the vessel under weigh is bound to show by clear and in(lisputal)le evidence that the accident did not arise from any fault or negligence on her part, for this obvious reason that the vessel at anchor has no means of shifting her position or avoiding collision. In this case it docs appear that there was fjxult or negligence on the part of the brigantine, the master of which expressly desired the steamer to cast him off at the time mentioned by the witnesses, and within a distance from the Diligence which proved insufficient to enable him to bring up his vessel without coming into collision with the Diligence. He miscalculated either his distance from that vessel, or the strength of the tide, or the time it would take before his anchor would hold him ; and the greatest distance stated certainly appears too short, considering that the tide was running full ebb directly towards the Diligence. But this miscalculation cannot be in any way imputed to any fault or negligence on the part of the people of the Diligence, or to the fact of her having but one light instead of two as required by the Trinity House Regulations then in force, or to the one light being a little lower than pre- scribed. If the people on board the steamer and brigan- tine had not seen the Diligence, then the non-compliance with the regulation might have been a defence to the action ; but having seen her, they were bound to take every precaution against a collision with her, and this whether she was properly or improperly anchored or lighted. Neither by the marine nor by the common law is a vessel or a carriage justified in not taking proper precautions against a collision with another, by the fact that such other is not in its proper position or side of the road or is in any way contravening any rule of the sea or of the road. It does not appear that the Martha Sophia took prnpor precautions for avoiding a collision with the Diligence after having seen her ; the night was ch-ar, and Maktha SonirA. 18 CASES IN THE VICE-ADMIILVXTY COUBT Mabtha Soi'HIA. there was no wind or other circumstance which could occasion any difficulty, and the collisitju seems to me to have arisen :iolely from the Martha Sc^phia having cast oti" from the steamer sooner than she ought in common prudence to have done, and not having allowed sufficient time for her anchor to hold, and to keep her clear of the Diligence. Vessels ought certainly to comply strictly with all the Trinity House Regulations, and the Diligence may have been liable to a penalty for not doing so, but the collision did not arise from her non-compliance with such regulations, nor did such non-compliance justify the neg- lect or error in judgment on the part of the Martha Sophia by which the accident was occasiced. Kerr and Lemoine, for the Diligence. Plamondon and Dechene, for the Martha Sophia. FOIl I,0\Vi;H CAXAPA. 19 Tuesday, 20th December, iS-lf). MARGARET— Clark. Whoro collision occurs, -vsrithout Llamo boinp; imputable to either party, loss muat bo boriio by party on wboui it hai)p(>UH to alight. The Court will not give costs whoro a collision has occurred from inevitable accident. In a case of collision the o)iii.i prohnmUis, in the first instance, upon the party complaining of the injury. Although tho rule is to port the holm upon the approach of a vessel so soon as descried, still there must be tiino and opportunity for reflection, as a vessel may, at first sight, be going in a direction opposite to that suiiposod, and the conseejuonco fatal. This was a cause of damage by collision promoted by MAnoARET. tlie owner of the barque Warburton against the barque ' ' ' Margaiet, under the circumstances noticed in the followinir judgment : — The Court— //on. Henry Black The Warburton, a vessel of 405 tons burthen, laden with deals, sailed from Quebec on the 18th of November, 1857, on her home voyage to London, and in the early morning of the 24th, the wind then being from south-eastward, was beating down the river between Gaspt^ and Anticosti, under two close-reefed topsails, and on the starboard tack. The Margaret, a vessel of 559 tons burthen, laden with wheat, flour, and deals, sailed from Quebec fo. .Liverpool on the 17th of the same month of November, and in the early morning of the 24th was also beating down between Anti- costi and Gaspe, under close-reefed topsails, fore-topmast stay sail and mizen stay sail, on the port tack, and going about five miles an hour. The rate at which the War- burton was going is ditlerentiy stated, the man at the ^^^-f wheel saying it was from three to four knots, the boat- 2 i\ 20 CAsr.s i\ Tin; vicr.-ADMiitAi/rY curuT ■ 'V k r TT ■!* J ; - '■•* i -'J I •?l % ' r^ *-* • > 1 ■ . *i i ■ it Maroarrt. swain five or six knots, while tlio master says slio was going about one knot, and tliu mate that she might be snid to be hove to, and was scarcely under command. About forty minutes past five, according to the witnesses on the part of the Warburton, and about five according to those on tho part of the Margaret, the two vessels met each other on opposite tacks, and the collision took place, tlie Margaret striking the Warburton on the port side, and doing the damage complained of. The Warburton ■was so disabled that she was obliged to be nui n.shore on Anticosti, and wintered there. The Margaret was also .so much injured by the collision that she had to go into Sidney in Cape Breton to repair. There is as u.sual some discrepancy between the evidence offered by the oppo.sing pa. ties, but the following facts appear to me to be clearly established ; — j'lie Warburton Avas on the .starboard, and the Margaret on the port tack. The Margaret had a good light at her bow;:prit end, which was seen from the Warburton. The Warburton, a sliort time before the collision, had taken m her bow.sprit light, for the purpose of trimming it, and it was so taken in at the time when she first saw the Margaret's light ; but on seeing the Margaret's light, i!>r. master of the Wafburton ordered the binnacle light to be exhibited over her lee or port side about the main chains. The light of the Mar- garet was first seen about two points on the lee (or port) bow of the Warburton. The light which the master of the Warburton ordered to be exhibited when he saw the ^Margaret's light, was seen suddenly by the people of the Margaret on her lee bow. There is contradiction in the evidence as to the time which elapsed between the time when the vessels saw each other's lights, and that at which the collision took place, the people of the W^arburton saying they saw the Margaret's light ton or fifteen minutes pre- vious to the collision, and that they exhibited their binnacle light over the side immediately after first seeing the Mar- FOR I.dWF.n CANADA. ai giircl's liglit. The MivrATiMinAi,TY roritr ininieiliiitely aftciwards, (hat is to say, witliiii a (|narfcr of iin hour, and tho trials were had iininediately bel'oie Mr. Belleau and Pierre Martial Bardy, Es(mire, another Justice ot tho Peace, Mr. Maguire having then, according to what IS proved to be his usual custom at that hour, gone away for a sliort time. The constable George Neilan, who made the service, states that Mr. Maguire generally hears and decides complaints of seamen for wages: and Mr. Maguire himself states that it is (piite unusual to make any summons to the Police-office returnable at noon. Kellow appeareil, but does not seem to luive made any proper defence, or to liave shewn that he had ceased to be master of the ship, or that the complainants were engaged for a voyage which had not terminated, and which by the articles of agreement was to terminate in Great Britain. Nor docs It appear that the magistrates were made aware of or in- quired into these points ; and an order was made in each case by Messrs. Belleaii and Bardy in favour of the com- plainants ; the sums awarded for wages amounting to i^liO 7s. 7'/., and the costs to £20, which sums Kellow was commamled immediately to pay. By the Merchant Ship- ping Act, under which the proceedings were had, if, after wages are lawfully duo by the termination of the voyage, an order is made for the payment thereof, on a party who is then master or owner of the ship, and the amount is not paid by the time and in the manner prescribed in the order, the Justices who made the order may direct the amount remaining unpaid to be levied by distress and sale of the ship, her tackle, furniture, and apparel. Kellow was not master, nor had the voyage terminated, but Messrs. Belleau and Bardy on the same 8th of November (18.55), issued under their hands and seals, eight warrants of dis- tress, directing the sums mentioned in the orders and costs to be levied by distress and sale of the vessel. These warrants were, on the same day, handed by Mr. O'Farrell to George Neilan, a constable, who went to Cap Rouge to 4- jt t4!t.#i||^.*5 ^0', r 1^ j,«lt*''*« ■•■«•; Fdi! r,()\vi:i: canada. ')U execute tlicin, Imt found that tlic llnidoc liatl been re- moved, wliLTcupou lie returned to Quebec and gave back the warrants to Mr. O'Farrell. On the next day (the 9th November), Mr. O'Farrell put the same warrants into the hands of Paid Thibaudeau, with instructions to execute them on board the Haidee, then lying at anchor in the haritourof Qu(d)ec, near tlu; Island of Orleans. Thibaudeau, a.ssisted by (iodfroi Prendergast and by seventeen men engaged by Mr. O'Farrell, who went with them, proceeded to the Haidee ; the master was absent, and the pilot hav- ing refused to pay the sums mentioned in the warrants, Thibaudeau caused the anchor to be weighed, and the ship to be towed back to O'Brien's wharf in Diamond Harbour. When there, Richard Pope, Escpure, Advocate, — having, as ho states, at the instance of Mr. Ritchie, the owner of the ship, obtained from Mr. Bardy, one of the Justices who issued the warrants, what ho terms an order addressed to Mr. O'Farrell, to abstain from any further proceedings, upon receiving from Mr. Ritchie a guarantee that he would pay Mr. O'Farrell all claims, costs, and charges which the seamen might have against him or the ves^.el, in tlic event of the orders being confirmed on api)cal or on certiorari,— presented the same to Mr. O'Farrell on board the vessel, with a guarantee signed by Mr. Ritchie to the recpiired cifect. Mr. O'Farrell accepted this guarantee, and gave up possession of the vessel, a.ul ordered the bailiff and his men to leave her and go on sliore, telling thcni he had been satisfied by Mr. Ritchie. The vessel then proceeded to sea. In the year 1850, Thomas Hobbs (the promoter) pur- chased the Haidee, and has ever since been the sole owner and in possession of that vessel. And she has since been commanded by five different masters ; and lias made five different voyages to Quebec, arriving there re- spectively, cm the IfJth of May, IS.-JG,— on tlio 2!)tli ..f September, l,S,5(;,— on the 26th of May, l8.-)7,_,ni the I1aii>kk. CASKS IN riiK vi(i;-Ai<.Mii{Ai,rY rui'irr 8tli of ScptcmI)or, 18.")7,— and on tlie SOtli of August, in 1859. On the 8th of September, 18.J9, Mr. O'Farrell put the eight warrants issued hy Messrs. Bellcau and Bardy, on the 8th of November, 185.5, into the hands of Richard Kinsley, a baibtT .uid constable, and instructed him to seize the Haidee, imle.ss the full amount mentioned in them were paid him on demand. Kinsley accordingly, accom- panied by one Patrick Foid, wont on board the ship, tlion lying at a wharf in the harbour of Quebec, and on the refusal of Kompthorn, the master, to pay the sums de- manded, seized the ship with her tackle. Mr. O'Farrell immediately afterwards came on board, and ])rought four- teen men as keepers, seven of whom remained on boai'd ten or eleven days, until the vessel was released by order of this Court, upon security being given to meet the cUaims under the warrants, if they were found valid ; the amount then claimed being,— for wages £C)0 7s. 7(?.,_for costs before the Justices £20,— and for costs of distress £125 4.s.,~making in all £205 lis. 7iL currency, which sum Kinsley now claims. Under these circumstances Mr. Hobbs, the present owner, applied for and obtained a writ of possession against Kinsley as a wrongdoer, and the vessel was de- livered up to him, on his giving security as before men- tioned (a). Of the jurisdiction of tlie Court in causes of po.ssession there is no doubt (6). From the most ancient times the Court of Admiralty had constantly entertained both peti- tory and possessory suits concerning the property and employment of ships ; and although, after the Restoration, it was intimated by the Courts of Common Law that ques- tions of di.sputed title Avere not properly cognisable in the Admiralty, and after that time the Court was very absto- (./) Tho rartridgo. 1 Ilagg. {b) Tho Mury and Dorothy, p. 81. L. C. Ad. K. p. 187. FOn LOWKI! CANADA. 31 mious in the intorposition of its authority in cases of mere disputoil title, its juri.silictioii over causes of possession was always retained; nor was any intimation ever given by the Courts of Common Law that the Admiralty should abandon its jurisdiction over causes of possession ; and the practice of entertaining such causes has been constant and uninterrupted. The rides of the Court, established by an order of His late Majesty in Council, under the authority of the Britisli Act of Parliament for regulating Admiralty proceedirjs, contain provisions expressly applicable to causes of possession ; and indeed within the last few years the ancient jurisdiction of the Admiralty in cases of dis- puted title has been acknowledged and confirmed by an Act of the British Parliament. Nor can there be any doubt that the case before us is a cause of possession, and within the jurisdiction vested in this Court as to such cases. Generally the occasion for the exercise of this juris- diction arises in cases between part owners who cannot agree respecting the employment of their ships ; and the Court having in such cases jurisdiction to detain a vessel at the instance of one part owner, it must d fortiori, have jurisdiction to detain her at the instance of the real owner against a mere wrongdoer. The enormous amount of mis- chief and injustice which might be perpetrated if the Court had not such power is t,oo obvious to require comment ; and fully justifies Lord Tenterden's remark in Blanchard's case, that this jurisdiction of the Court of Admiralty is a most useful part of the jurisprudence of the country (c) ; and if a practical illustration of the correctness of this re- mark were required, it would be hard to find one stronger than the present case. Having, then, clear jurisdiction in the cause, this Coux-t has necessarily the right of d-ciding every incidental question which arises in it : and the validity of the war- {r) In the matter of Blanch.'inl, Baxtor, and others, 2 Burn. & Cress. 244. IIaidge. 32 CASKS IN TiiK vrcK-AhMIIiAr.rv corifl' IlAinnK. '■'1"''^ ninlor which ihf Ifaidro wns scizod, juid the jiiris- ' diction of the two Justices who issued thcin arc such in- cidental qncstions. Now, the sonincn, :it whose instance tlip proceedings wore instituted in winch these warrants issued, were engaged for a voyage from Plymouth to Quebec and back to a final port of discharge in tlie United Kingdom, and could not tiu;refore under the lOOth section of the Merchant Shipping Act, sue in any Court abroad for wages, and could not sue at all until the service had terminated, or until they had been disjhargod. The ser- vice liad not terminated, and the seamen were not dis- charged ; and it is certain that the.Tustices could not give themselves jurisdiction in this case, by finding that as a fact which was not a ftict (d). They were therefore abso- lutely without jurisdiction, ami the whole proceedings wore coram nan judice, and the orders and warrants founded on tneni were of course also void. The two Justices may have been deceived ; but from the hurried and unusual manner in which they allowed the whole proceedings to be conducted, it is clear that the neces- sary amount of precaution to avoid deception, was not used by them. The very ship's articles were not ])ro- duced or rc(|uircd, though it is proved by Mr. Maguire, and by Mr. Pope, that the seamen liad in the previous ca.se before Mr. Maguire admitted the articles, and their Attorney, Mr. O'Farrell, must have known that no seaman could be legally brought from the United Kingdom to Quebec without articles ; and if the claims for wages had been brought in the usual manner before Mr. Maguire, ho would undoubtedly have required the re- production of the articles before him ; and want of juris- diction, arising from the non-termination of service beinf thus made patent, the cases must have been dismissed. I.ut tli(! Justices were further deceived, inasmuch as Kellow, against whom the proceedings were taken and the (d no arbi- trary rule on this subject, but holding the lien not to be indelil)le, leaves the circumstances under which it shall be enforced, as against third parties, to the discretion of the Courts, to be exercised as justice may require in the peculiar circumstances of each case, when one of two innocent parties must necessarily suffer by its being allowed or disallowed {j ) : no stronger case than the present could ari-se for its disallowance. Under these circumstances the Court can have no hesi- tation in dismissing the claim of Kinsley, and relieving the owner from all liability under the bail given by him in this cause, with costs against Kinsley. Jones and Hearn, for the Promoter. Dunbar Ross, Q.C., and John O'Farrell, for the claimant. (e) Ordonnauce do la Marino, (/) The Ilercyna, L. C. Ad. Liv. 1, Tit. 14, Art. 1(5. Code E. 274; Flanders on Maritime do CoiTimcrco, Liv. 2, Tit. 1 , Art. Law, § 495, p. 40a. mmmfm^ .ffifi'kiijt.iXf- roll i.owKii taxaha. 8S lird Jiibj, lS(iO. ELLERSLIE-VicKKRMAX. Whoro description of voyago in 8hipi,.a- niticles is aa one to the Umtod Stiitoa : II, Id, to bo a good description tind.n- the terms " Nuturo of the Voyago " in tho Merchant Shipping Act, 1854. Judgment.— //o??. Ilenvy Black fn this oaso the (lucHtioii stilmiitted to tliu Court is whethor the articles of tlio sliip Ellurslie do or do not warrant the master in bringing tliat ship to Quebec .as .-i place within the description of the voyage contained in tho articles entered into by the seaman, who was the complainant before the magistrate; or whether these articles were void from the beginning for uncertainty. The voyage as described in the articles is as follows :— " From Hull to the North to load for Carthagena, thence to any ports or places in the Mediterranean, Black Sea, Sea of Azov, or rivcAS and seas adjacent, and any port or places in the United States, North and South America, or West Indies, wherever freight may offer, to and fro, and returning to any ports or places in the Baltic and seas adj.acent, or on the continent of Europe, with leave to call for orders, and terminating finally in the United Kingdom, for a probable period of twelve months." Now, the description of the voyage as one to the United States is undoubtedly a good description, and the words North and South America, which follow, appear to me to include any place in North or South America, within a reasonable distance of the United States, and to which the ordinary course of tr.ide might proKably load the master ti ..diittdte,- Fon T.owrn caxapa. 87 Amcrioii which arc within the United States. By tliis Ellkrhmb. inti-rpretation wo give a fair force and moaning to all ^"~' " the words 'of the contrart, which we should rot do by int.'rpn-ting the words North and .South America as h;ivinif no elVect whatever. 'I'liis ca.se dirt'ers from that of The Marathon (6), ina.s- niiich as in the articles of that ship the word.s were himply North and Soiith America, without mentioning any place in eitlier as a primary port, so that it was iinjws.sihie to restrain their meaning to loss than their g.M.graphical import, which included the whole continent of America, and every possil)lo variety of latitude and climate ; and in this .sense 1 held them to be so indefinite lis not to form a sufficient description of the voyage, or to give reasonable information to the seamen respecting it ■within the .spirit and requirements of the Merchant Ship- I»ing Act. Had any place in North or South America been mentioned in tho.se articles I should have been inclined to restrict the moaning of the words North and South America to places within a rea.sonable distance of that which I found mentioned therein, as I restrain 'hem in the present case to places in America within fiasonable distance of the United States, and in the orv.inary course of trade for Briti.sh .ships. I think, therefon t',.it, (, .service for which the seamen of the Ellerslie arv engaged has not terminated, and as the voyage is one which is to terminate in the United Kingd<*m, the magistrate is without jurisdiction md the complainant cannot sue for his wages before him. (fc) Supra, p. 9. 88 CASKS IX THE VKU'.-AKMIIIALTY crolUlT 12th Juhj, 18G0. AILSA— Alexander. lu a caso of collision, whoi-o tho ovidonco on both sides is con- flicting and nicely balanced, the Conrt will bo guided by the pro- babilities of the respective cases which are set up. Owners of vessel proceeded against dismissed without costs. Ait.sA. Tliis was a cause of damajre promoted by the own^i-s of ' ' the barciue Hcuriette, a Prussian vessel, against the ship Ailsa, of Cardiff. Judgment. — Hon. Henry Black. On the 4th of June last, the Prussian barque Hcnriette of Dantzic, of the burthen of 3'34i tons, arrived at this ])ort from Cardiff in Wales, and came to anchor abreast of the Montrt'al Ocean Steamship Company Wharf, about the middle of the stream, or about four cables length from the wharf On the following day, in the early part of the afternoon, the ship Ailsa, of Cardiff, of the burthen of 5(i.5 tons, which had been at the ballast ground, dropped flown with the tide, and came to anchor also abreast of the wharf, and a little below the Henriette, the master's in- tention being to discharge her cargo of coals on that wharf so soon as he could get a berth, which he expected to do on the following day. The distance at which he aTichored from the wharf is variously estimated and stated by the witnesses examined in the cause, at from one cable's length to two cables' length. The tide was then ebbing. A little below these two vessels, and rather further out than the Ailsa, but not so far out as the Henriette, there was a third vessel, called the Faithful. When the tide turned, about four in the afternoon, all these vessels swung with it, and clear of each other. The wind during FOR LOWER CANADA. 89 tlie afternoon was fresh, but not violent, from the East North East ; that fs, across the river from the Point Levy to the Quebec side, but in a direction rather up the stream. At about half-past nine in the evening, the tide turned and began to ebb ; L e Ailsa, the nearest in shore, felt the obb first, the Faithful next, and the Henriette, being the furthest out in the stream, last. The Ailsa and the Faithful swung clear of each other, but when the Henriette was swinging, and while she lay across the stream with her head to the wind, the collision complained of took place, by the bow of the Ailsa being brought into contact with the Hcnriette's port side amidships, when the damage complained of was done. The two ships remained fast together, and drifted down the stream towards the Faithful. The people of that ship seeing them approaching, paid out more chain, and shifted their helm so as to sheer the ship in shore. The two vessels, nevertheless, passed so close to the Faithful, that the Ailsa's stern carried away the Faithful's jib-boom. They remiuncd fast together until tiie following morning, and got clear of each other at slack water. Upon these facts both parties agree, but when we come (o the evidence, and opinions upon the causes which led to the collision, the statements are discrepant and con- tradictory. The people of the Henriette assert that their shiji never dragged her anchor imtil after the collision, and that there was no fault committed on their part, or any act omitted to ensure their vessel's swinging properly. They assert that the Ailsa moved from her position, and struck them in consequence of so doing ; and as their own estimate of the distance between the two vessels would seem to make this impossible, — while the Ailsa's anchor remained where it was when dropped, and when the vessel swung to the flood, — they state a very positive opinion that the Ailsa had lifted her anchor for the purpose of going to the wharf, and wa.s, in fact, adrift, and carried Ailsa. 40 CASES IN THE VICE-A1)MIHAI,TY COl'IiT Atlsa. out by tlie stream when the accident occurred. But, on ^ the other hand, the evidence of the pilot, second mate, carpenter, and one of the seamen of the Ailsa, is most direct and positive that tlie anchor of tlie Ailsa was not lifted, and that the vessel had swung, and was lying with her head to the stream, in her proper position, when the Henriette came down upon them, broadside, their opinion being that the Henriette was adrift. So much for the conflicting evidence of the persons who were acting on board the two vessels, and who may bo supposed to be, to a certain extent, biased in favour of their respective vessels. As regards the evidence of other parties, we liave the mate and one of the seamen of the Faithful, who state positively that the Henriette did not drift, but, that while she was in the act of swinging fairly round, the Ailsa broke her sheer, and ran up and struck the Henriette. On the other hand, the masters of the Aurora and the Bacchus state that they saw the Ailsa in her proper position after swinging, and that they saw the Henriette drift down upon her broadside. In this conflict of evidence there does not seem to be in the admitted 'acts of the case much that can tend to show that the witnesses of either party are correct in their views. On the one hand, the distance at which the Henriette is stated to have been from the Quebec shore is so great, that if it be correctly stated, it does not seem possible that the Ailsa and she could have come into collision and then drifted down so close to the Quebec shore as to strike the Faithful, without the Henriette's having shifted her position by dragging her anchor, more especially as the people of the Faithful paid out more chain and sheered in shore. But, on the other hand, it is certain that the Ailsa, when in her correct position, swinging to the ebb tide would be inshore of the Faithful, and could scarcely drift from that position outside of the Faithful as she did. If then the distances and positions FOR LOWER CAN'ADA. 41 given be correct, or nearly so, it would seem that the Hen- riette must have drifted more or less towards the Quebec shore, and also that the Ailsa must have sheered towards the South shore after swin<,nng. These two movements might, supposing the distances correct, bring the vessels in contact, and cause them, after the collision, to drift down- wards just outside of the Faithful, as thoy certainly did. The Ailsa's people deny positively — and there is no reason to doubt their statement on this point — that they lifted their anchor ; nor did their chain break when the strain of the two vessels came upon it. On the other hand, it is certain that the Henriette's chain did break, for her anchor was lost ; and there is nothing to show absolutely that the chain had not broken before the ships came into collision. It does not appear that the ebb Avould carry the Ailsa outwards if she were adrift, while it is certain that if the Heuriette was adrift when swinging, the wind, which was strong and almost directly across the river, would carry her towards the Quebec shore and towards the Ailsa. On the i. '".e, I am inclined to believe that the witnesses who st . : .rt the Henriette drifted upon the Ailsa are correct, and I think it probable that this was occasioned by the breaking of her chain before the accident. I think that it is also probable that the Ailsa, after swinging, had sheered outwards further than was absolutely necessary, but it does not appear to me that the accident can be fairly said to have been occasioned by her doing so. In this view ti.e collision must be considered as having arisen from the misfortune of the Henriette, and not from any fault on the part of the Ailsa, or at any rate such fault is not proved with sufficient clearness to justify the Court in making her liable for the damage. Under all the circumstances of the case, considering that the evidence on both sides is more evenly balanced than usually happens, I must pronounce that the Ailsa is not answerable for the consequences of the collision, and that the AtLSA. 42 CASKS IX THE VlCE-ADMin.VM'Y COLIIT Aii.sA^ owners of tliat vessel must be dismissed. T sliull, however, ilecliue to accompany my sentence with any order as to costs. I can give no costs. Ilichard Poj^e, for the Henriettc. Jones and Jlearn, for the Ail.su. im^ikZ-'^fimum' FOR LOWIUJ CANADA. 43 Frklo.y, i\st September, 18G0. ANNE JOIIANNE.— Lausen. Tho Court of Admiralty lius jurisdiction in cases of collision occurring on tho high soas, whoro both tho vossols are the i)roperty of foreign owners. (Questions of collision are questions communis juris, and in cases whore both parties are foreigners, the important distinction is, whether the case bo '•(imminn's /uris or not. In a case of damage by collision : IIvM, to have been the result of inevitable accident arising from foggy weather, and the vessel lirococdod against dismissed accordinglj'. Where damago is occasioned by unavoidable accident, tho loss must be sustainod by tho party on whom it has fallen. The law imposes upon a vessel, having the wind free, tho obliga- tion of taking proper measures to got out of the way. This was a cause of damage promoted by the owners of the brig Ferdinand, a French vessel, against the Nor- wegian barque Anne Johanne, under the circumstances noticed in the following judgment of the Court : — Judgment. — Hon. Henry Black. This is a suit brought by Ferdinand Dubois, of Rosny, in the department of La Vendee, in France, and Jean Adolphe Pellerin of the town of Tonnay Charente, in the department of Lower Charente, in France, owners of the brig Ferdinand, of the burthen of 251 tons, English measurement, built at Sables d'Olonne in France, and commanded by Jean Adolphe Pellerin, one of the owners, against the Norwegian barque Anne Johanne, of the burthen of 855 tons, English measurement, whereof Lars Andrias Larsen is master, for damagCi^ arising from the loss of the Ferdinand, in consequence of a collision between her .and the Anno Joh.annc, in the North Atlantic Ocean, on the 20th of June last, in about forty-five Anne Johanne. 41 f'ASrs IN Tlir, VrCK-ADMIRAI.TY cox'm Annk JnFl.VNNi;. (Icgrocs iiortli liititiulc, and between forty-five nm\ forty- eiglit degrees west longitude from (Jrecnwicli. On the part of tlio Ferdinand it is alleged, in the pleadings, that on the t Bank of Newfound- land, in latitude 45° lo' North, and longitude 4/')'^ 54' Annr JuHANNE. 40 CASKS IN TUV. VICK-AI)M[l!.\r,TV COCliT Annk J'lIlANNK. West fVoni (In^cnwicli. Tlifit tlio wiml wfis (lien West North West, and the vessel was st2eriii<( a course South West. That she had boon on the starboard tark all that day. That the watch and all hands bcincr on deck, the mate who was on the look out fin the forecastle, sjavo the siynal, "ship ahead," when the fn(r-horn, which bail been kept sounding all day at intervals of a minute, was imme- diately sounded by the mate. That the Ferdinand was then approachinff din-ctly the hawse of the Anne Johanne, and was at the distance of about fifteen fathoms or half a ship's length from the Anne Johanne; that orders were then given to put the Anne Johanne's helm hard a-poit, and back the sails ; that the helm was put hard a-port, but there was not sufficient time to back the sails com- pletely ; and that the jib-boom of the Anne Johanne came into contact with the main rigging of the Ferdinand, striking her about midshii)s on the larboard side. That the sails were immediately clewed up ; and that after some of the rigging of the Ferdinand had been cut away, the Anne Johanne passed clear and under her stern ; and after taking on board the crew of the Ferdinand, and effecting certain repairs which the collision had made necessary, proceeded on her voyage, and arrived at Quebec on the 10th of July last. That the loss of the Ferdinand ■was not occasioned by any inattention of those on board the Anne Johanne, but by the negligence, inattention, ■want of skill, hesitation, and want of exertion on the part of tho.se on board the Ferdinand. No question of jurisdiction has been raised, but it may be as well to premise that Courts of Admiralty jurisdiction in England and America have uniformly held that they have jurisdiction over foreign vessels in all cases of col- lision, where the proceeding is in rem, and the vessel i.s within the local jurisdiction of the Court. These cases are comiminis juris ; there is no matter of contract in- volved in them, and the municipal laws of the countries FOU I.OWI'.n CAN'ADA. 47 in wliidi the parties may have their pcnnancnt domicile cannot apply. Tiie proper forum for the proceeding is the locvfi rei h'iUv; and it must bo evident that justice requires this ; for, in the great majority of cases, if the courts of the country in which the vessel proceeded against may he, could not or would not entertain the suit, the only real and efficient proceeding and remedy would he utterly lost. Thu case is therefore regularly before the Court, and to be determined upon its merits. There is no difference, whifh can affect the decision, in the allegations of the two parties in their pleadings, the evidence they adduce, or the protests made by the respec- tive masters on their arrival and filed in the cause, as regards the place and time when and where the collision occurred. Both agree that it was in the North Atlantic Ocean, and the slight difference between them as to the latitude and longitude in nowise affects the merits. Both agree also that it was in the afternoon, some hours before sunset, and the difference between them as to the exact time, does not amount to more than half an hour, and is immaterial. Both agree also that the weather was and had been for some time before foggy, so much so that both assert that they had been using their fog-horns, and the people of the Ferdinand assert that they used a bell also, for some time before. They agree also very nearly as to the force and direction of the wind, and as to the courses of the vessels immediately before the collision, the slight difference in the statements of the two parties not being such as to affect the case, both agreeing that the Ferdi- nand was going with the wind many points free or nearly before it, or having it a little on her port quarter, and that the Anne Johanne was close hauled on the starboard tack, and that it blew a fine fresh breeze {nne jolie hrise). They agree about the rate at which the Ferdinand was sailing, vvhich was about five knots ; and the people of the Anne Johanne state their speed at about five or six Annr Johanne. 48 CASKS IN Tlir; VirK-AIiMIItAr.TV (OrilT Anvk JoHANNK. knots, l)iit tlic ]>(H)|)Io of tlio Ferdinand estimate tliat of the Anne .Tolianne at about nine knots, stating that the people of the Anno Jolianiio tohl them so after the rol- lisiou. It seems jjiobable that the speed assi-fned to (he Anne Johanne by her own people was nearer the trntii : but the assertion of the Ferdinand's people is in favour of the Anne Johanne, as diminishing the time during which she would nm the distance which was between the vessels when they first saw each other. This distance is variously stated in tlie pleailings and evidence; in thi preliminary act filed on behalf of the Ferdinand, it is stated at loO fathoms, and the evidence on behalf of that vessel does not materially ditler from this statement, the highest estimate by any witness on that side bi.-ing 200 fathoms. In the preliminary act filed on behalf of the Anne Jo- hanne, it is stated at 10 fatlioms, m the plea at 15 faihom.s, and in the evidence adduced at two ships' length, which may be about 40 fathoms. The time between that when either vessel first saw the other and tlie collision, is stated in the evidence on behalf of the Ferdinand at about two minutes ; and in that on belialf of the Anne Johanne at about half a minute. Both statements as to time and distance are probably more or less erroneous, and the almost impossibility of correctly estimating time in cases of excitement is univer-sally admitted and commented upon by all authors, and the time is almost always over- rated. Taking the distance and the .speed of the Anne Johanne to be as stated by tiie Ferdinand's people, the time in wliich .she would pass over it would be a little over one minute, and if her speed were that stated by her own people, it would be a minute and a half; and if we take the distance and the speed of the Anne Johanne to be rightly given by her people, the time would only be one-tenth of this, or nine seconds. The truth probably lies between the two .statements, and the average of them woidd be about a minute. The greater time and distance POn LOWER CANADA. 49 wotilil ho in ono respect against the Ferdinand, hocause it was clearly lier duty to put her helm up immediately on perceiving the Anne Johanne, and thus to run away from her, and if this had henn done two minutes before the collision, the vessels would have been running more nearly in the same direction, and the Anne Johanne could not have struck the Ferdinand nearly at right angles, as she appears to have done ; and if the Anne Johanne star- boarded her helm, as the Ferdinand's people assert, the courses of the two vessels would have been more nearly parallel. As regards the manoeuvres of both vessels when tlioy saw each other, the evidence is, as is usual in such cases, ilirectly contradictory. The people of tho Ferdinand assert that the Anne Johanne starboarded her helm, and upon this assertion the claim on the part of the Ferdinand rests : but they can speak only as to their belief founded on what they were able to see from the deck of the Ferdi- nand, and in a short interval of great excitement and hurry, and the evidence of the Anne Johanne's people in positive and clear that her helm was never starboarded ; the mate (Halvor Olsen, swears distinctly and positively that he gave the order to port the helm, immediately the Ferdinand was seen, and that he saw that it was obeyed ; and in this statement he is confirmed by the other wit- nesses, who were on deck and formed part of his watch. There seems no reason to question this positive evidence on the ground that the crew of the Ferdinand o.press a contrary opinion. On the other hand, we must take the assertion of the Ferdinand's people, that her helm was ported as soon as the Anne Johanne was seen, to be true ; though the Anne Johanne's witnesses express a contrary opinion. As regards the look-out kept by each vessel, it appears that the mate of the Anne Johanne was, imme- diately before the accident, on the round house, which was liigher than the deck, for tho express ptirpose of lookino- out, and there were six men on deck. On board the Fer- Annb JuriANNB. rA) f'Asrs IN Tin; vk t.-admikaltv (.ii-iit Ansk JuHANNE. (liiiand, nil linnds were on deck, I)ut no one is alleged to have been specially <»n th»! l«Mik-out, — the men were about to go to sii|>j»(.'r on dock, uiid tlie first jiorsim wbo dis- covered tlie Anno .Tohaune was the approntico, Joseph Aloniiier, who was at the helm and gave the alarm. The look-out may, therefore, be said to have been better on board tho Anne Johanne than on Ixiard the Ferdinand; btit, as the mate of tho Anne Johanno could not see the Ferdinand iintil, as he says, about twenty-five Hoconds before tho collision, th?,. Henri/ Black. This suit is brought by James Bwnen and James Bunten, junior, both of Glasgow, in Scotland, sole owners of the ship Washington, against the ship Lotus, owned by Henry Fry, of Quebec, and Mark Whitwell, an.l John Allward, of Bristol, to recover damages arising out of a collision between those ships, which took pLice in the harbour of Quebec, on the 12th of May last. The Wash- ington, a vessel of the burthen of 989 tons, arrived at Quebec on the 11th of May, about ciglit in the morning, having on board 620 tons of coal, and 100 tons of ballast! and came to anchor opposite Dumlin's wharf, on the' Quebec side of the river, and about one-third of a mile FOn I,OWKn CAN-ADA. 59 from it, in about twelve ftithoius water, and rode Ity lier port ;iiK'liur with aboiit thirty fatlioms of chain out ; she lay in a .safe berth cloar of all other vessels, and swung with the tide without any difficulty. ,The Lotus, a ship of 824 tons burthen, arrived ab(jut four o'clock in the Jiiorn- iny' of the following day, being then in charge of a Branch rilot who had C(jnie on board at Bic. She hail a cargo of .uals, to be delivered at the Montreal Ocean Steamship ( .'ompany's wharf, and her master wished her to be anchored as near as might bo to that wharf, which is below Dundin's wharf. She came to anchor above the Washiiijrton, and inside of her, but tlie exact ilistauce at which she anchored from the Washington is disputed. When she anchored the tide was about slack after ebb, the vessels in port were in the act of swinging, the wind being from the east and blowing a fre.sh breeze. The Washington and the Lotus swung safely round with the flood without accident; they appear also to have swung safely round with the ebb. But soon after the title turned to ebb, and about 10 A.M., the Lotus broke her sheer, and swinging outwards, came into collision with the Washington, — her port quarter striking the Washington's starboard bow, — and swung round with her side to the stream, the jib-boom of the Washington passing between the main and the mizzen masts of the Lotus ; the anchors of both ships then dragged, and they drifted together down .stream, until they came into contact with the Margaret Pollok, which lay a short dis- tance below them on the port quarter of the Washington. The Washington's port bow struck the Margaret PoUok's starboard bow ; the Margaret Pollok's anchor also dragged, and the three vessels drifted together down the stream, and they afterwards became entangled, first with the Kalos, and then with the Equity, and the five vessels drifted together with a strong ebb tide until they were brought up by their anchors holding on th-e Beauport bank, at the west end of the Island of Orleans. In LiiTI'S. CO IiOTl'9. CASKS IV Tirr: vrrr.-Ai.MinALTY rornr ^ tliis collision tlio damage complained of was done to tlio Washington. The .ships were not freed from each other until the Hood, when they got clear with the a.s.si«tunce of their .sails and of a tug .steamer. These are the undisputed facts of the case ; on certain other points the allegations of the respective parties, and evidence adduced by them, are more or les-s at variance. The owners of the Washington allege that the collision arose from the Lotus having come to anchor too close to the Washington (about a ship's length from her), and having given the latter a foul berth, .so tliat if she broke her sheer and swung towards the Washington, the latter could not avoid her; and the collision, wliich actually occurred, must become inevitable. They allege also that the Lotus was under no necessity to anchor so close to the Washington ; but that on the contrary there was at the time the Lotus came to anchor, ample room for her to have taken such a position as would have avoided all risk of collision, and therefore that the damage was occa.sioned solely by the negligence or want of skill of the persons on board the Lotus. On the part of the Lotus it is alleged in defence, that she came to anchor at a proper and safe distance of from 120 to 130 fathoms from the W^ashington, and did not therefore give her a foul berth. That there was at the time of the collision a very strong breeze blowing from the eastward, and that at this time the Washington being light, had run ahead of her anchor, and was by this cause only brought so much nearer the Lotu.s, that when the latter broke her sheer the vessels came into rollision in consequence, and would not otherwise have done so. That the pilot in charge of the Lotus used eveiy endeavour, and adopted all proper means to keep her steady, placing a man at the wheel, and sheering away from the Washington towards the Quebec .shore, and setting the foretopraast sail to assist in keeping her steady ; and that it was the FOn I.OWKU CANADA. 61 violence of tlio wind, and not any fault or negligence of tiie persons on board her, which caused the Lotus to break hur sheer. It is alleged also that when the Lotus canted across the Washington, the Lotus set all her jibs, and the foresail, in order to get clear ; and that the collision was occiusioned solely by an accident, which those on board the Lotus could not avoid. It is also alleged that the Lotus wiUj at the time of the collision, and at the time when she came to anchor, in charge of a branch pilot, who had been taken on board and placed in charge in conformity to the re.s hml a i Lorth on the flood, and a foul one on the ( hh, because ku thinks the Washiii,L,4on run ahead of her anchor. Ho is not [.repared to swear that she did so, but thinks she must, because she was a li-lit shij,. The evidence of the mate of the .Nicaragua is nearly to the same effect as the master's. The evldenoo of the msister and jjeople of tlje Lotus, aud that of the pilot of the Cuthbert, is in general confirmatory of the allegations of the defence; but the master says, "I did not apprehend any danger until the Lotus took a strong sheer, and the tide taking her on her broadside, swept her duwu towards the Washington." And the pilot of the Cuthbert says, that on the ebb the Lotus lay at about half a cable's length from the Washington, and on her starboard bow, and about a cable's length from the Cuthbert, and on hci starboard quarter. On the morning of the collision he was .laing to the Washington in a boat, and pas.sed ahead of the Lotus. He saw her break her sheer, in spito of the etibrts of the man who was steering her, and run towards the Washington ; and when he saw that, he kept away from the Wasldngton lest he should be jammed between the two ships. The Lotus was driving towards the Washington as if going to fall across "A- bows, and the Washington was running ahead of her anchor, with her bow towards Quebec. About two minutes aft.'r he first perceived the movements of t!ie two vessels t' cane into contact. The Lotus hoisicd her fore- i. , ist stay-hail as soon as she broke her sheer. He says that half cable's length is considered a fair berth, if the ships sheer on the same way, but it would not be sufficient if they were not sheered to the same side. Tlicre is no allegation on the part of the Washington tli .roper measures were not taken after the vessels cuuie collision. LoTC't. 64 CASES IN TIIF VICT-ADMinAI.TV TorUT LoTi.^. Tlicro is tlio \mvx\ amount of discrepancy hetwocn tho allej^jations of tho particH, ami iMitwcrn tlio st;.tornt'nt.s of their rcspeciivo witiiossi's ; hut tho wiit-ht of the ovicUmon, and moro particularly of tho ovidonc ; of the witnesses tiiioonnocted with either vessel— taken witli the admission of tho master of the Lotus — and tiio undisputed facts of the case, would seem to show that in his desire to meet the wishes of the master to lie as near as possible to tho Montreal Ocean .Steamship Company's wharf, the pilot of the Lotus brought ln'r to an amlior nearer to the Wash- ington ♦'lan, under the circumstances, it was safe or prudent to do ; and in so doing lie ran the risk of the occurrcnc* of certain events of the probability of which it was his business to be aware, which in fact did afterwards occur, which he ought to have foreseen, and against which lie ought to have taken precautions, but did not ; and that it was by reason of the want of such foresight and pre- cautions that the collision occurred. It is far from being proved that the Washington ran up to or ahead of her anchor, and the balance of evidence inclines to show that she dill not ; those who say she did, support, if they do not found, their statement on tho supposition that she was n l!; they ay, twenty-one miles wide. The witnesses for the barcjue iiy that the night was dark but clear. The steamer wa.s oing with the tide, and, according to the evidence of the laster, at the rate of eleven miles over the ground, but he mate says she was going about fifteen. The barque as going at five knots, according to the evidence of her laster. The two vessels were thus approaching one nother at the rate of not less than fifteen miles an hour, he collision occurred shortly afterwards, the steamer's [)rt paddle Lc;: c^r^.'ng in contact with the barque's star- >ard bow, and occasioning the damage complained of on ich side respectively. The stt.amer had undoubtedly the ^dits required by law,— a bright light ai tK j mast head, a •een light on her starboard riat. and a r'jd light on her 3rt side. TFte steamer's people a:DT. 84 TASKS IN TUK VICK-ADMIRALTY CtH'UT R oYAi. MiPi>Y . licr, askino; her people wliat assistance they required, and were answered tliat they wanted the Emedine to tow the Royal Middy to a safe aneli()ra<;e. As the people of the Royal Middy could not come on l)oard Uie Emedine on account of there being no oars to their boat, the master of the Emedine went on board of the Royal Middy, and encountered some danger in so doing, in consequence of the state of the weather and the sea, which was then sweeping over the Royal Middy's deck. The promoter (the master and owner of the Emedine) went into the cabin of the Royal Middy with the mate, who was then in charge, and who asked him what he would charge to tow the Royal Middy to a safe anchorage : to which the pro- moter answered that his vessel was not insured ; that by assisting the Royal Middy to a safe anchorage he might lose his vessel, or be compelled to discontinue his voyage to Quebec ; that he had a cargo on board, and that the delay might expose him to damages towards the owners of the cargo. It was finally settled that the Emedine should take the Royal Middy in tow, and endeavour to take her to a safe anchorage ; but no price was agreed on, the master of the Emedine saying that he would claim whatever the law would allow him. The promoter then returned to the Emedine, and as the Royal Middy had no proper hawser — her's being used for the jury-mast — he sent one from the Emedine, and at the same time sent a pair of oars ; and having made the hawser fast on board the Royal Middy, at about half-past seven o'clock, p.m., of the 9th, all things being made ready, he steered towards Cape Rosier light, towing the Royal Middy after him. They had considerable trouble : during the night the weather was rough, and it snowed heavily on the following morning, so that though close to the land, it could not be seen, and the lead was constantly used ; and the wind changing, they were com- pelled to come to anchor about two or three o'clock, P.M. of the 10th, at a place called Sandy Beach, at thr. entrance FOR LOWER CANADA. 85 uf Gaspd Basin, where they remained until about two R qtal Midmt . o'clock, P.M., of the 11th, when the wind having shifted thoy entered Gaspd Basin, and came to anchor in six or si'von fathoms water, bi'twccn seven and eight o'clock in tlie evening, about a cable's length from the wharf at which tlic Royal Middy wintered. The weather became worse afterwards, and the frost set in, so that the Emedino was compelled to remain in Gaspe Basin, and to winter there, it being impossible to continue her voyage to Quebec without risking the total loss of the vessel and cargo. The promoter was afterwards sued by the owner of the cargo for ,s'5,()()(), as damages alleged to have been sustained in consequence of his having failed to bring the cargo to (Quebec in the Autumn. It was not until tl e 13th or 14th of November, that the master of the Roy il Middy joined that vessel in Gaspe Basin, having proceeded to that place over laud from the point at wl "ch he, with his wife, second mate, and two seamen, had landed. It is admitted on behalf of the Royal Middy, that the services rendered by the Emedine were salvage services, the vessel being then damaged and in distress ; but it is alleged that the services were rendered without any interruption of her voyage, or while she was actually on her way to the port to which she towed the Royal Middy- and to which it is alleged she was proceeding for safety* having sprung a leek through bad weather, and feeling unable to continue her voyage to Quebec ; that the service involved neither enterprise nor danger to the Emedine or her crew; and that the Royal Middy was not in imminent danger when taken in tow by the Emedine, but was proceeding towards and near a safe port ; that no skill or labour was exerted by the people of the Emedine, and that the time occupied in the eervice performed was very short. But the assertion that the Emedine was about lu proceed to Gaspd Basin, or that the promoter had any thought or intention of discontinuing his voyage to 86 CASES IN TIIF. VICE-ADMinALTV COTTnT Ki ivAi. Mtni.y . Queboc is not provoil in nny w.iy, nnd is positively ilcnioil liy liim; !iItli()ii,L;li lie .'iiliiiits tli.'it beiii.n' aliitve tli(! liarhoiir ol' Alalbaif, and t'earin^f hoistorous woatlicr, ho intended to go anil unclior for the night in that place. The risk of the lives of the crew of the Emedine, or of the loss of that vessel herself, was probably not very great, but the risk of detention, and of tlu; loss of the voyage, was certainly very considerable at the time the service was undertaken ; ainl this loss was eventually incurred, the Emedine having been obliged to winter in Gaspe Basin. 1'he degree of danger and distress from which the Royal Middy was rescued was undoubtedly very great. She was disabled in her masts and rigging, very leaky, without oars for her remaining boat, and deprived of her master, second mate, and two of the seamen, forming probably a considerable portion of her crew. From this danger she was rescued by the Emedine. The value of the property thus saved is admitted to have been £6,700 currency ; that is £3,000, as the value of the vessel, and .t'3,700 as that of the cargo. The principle upon which salvage is awarded is that the remuneration should be liberal, looking not merely to the exact quantum of service performed in the particular case, but to the general interests of navigation aud commerce, which are obviously greatly protected by encouraging exertions of this nature. If in this case I award £400 currency to the Emedine, this will be about six per cent. on the value of the Royal Aliddy and cargo, which in my judgment will be a fair and lilieral remuneration for the services rendered, and I award that sum, with expenses. Caron, Joncn, and llearn, for Salvor. Ilolt and Irvine, for Royal Middy. Foil LOWKU CANADA. 87 -i]th August, \8(i2. JAME8 Mckenzie— BoiTiLLi:;. Uiilo of navigation with rogaril to stoam vessels approaching each otlicr on ilill'oroiit courncs. A stouinor goiiiy up tho St. Ijawrouco at night, on a voyago from Cluoboc to Montroal, saw tho light of another Htcanicr coming (Imvu tho river, distuut about two lailos ; and when at tlio ili.s- tauce of rather more than half a inilo took a diagonal course across tho rivor in ord'" to gain tho south chaunol, starboarding her lirlm, and then putting it hard to starboard. The stoamor coming down having ported her helm on seeing tho other, a collision ensued. Ilvid : — That tho vessels wore meeting each other within tho meaning of tho Act regulating tho navigation of tho waters of Canadii (22 Vict. c. 19), and tho steamer going up the rivor was solely to blame for tho collision in not having ported her helm. This was a cause of damage brouglit by Pierre Plante, the owner of the steamer Fashion, against the steamer James McKenzie, to obtain conqjensation for a loss arising from a collision between these two vessels in the river St. Lawrence, about three quarters of a mile above Lavaltrie island. Judgment. — Hon. Henry Blad; C. B. On the 27th of June, 1S(J1, the steamer Fashion of 200 Ions burthen and about forty-live horse power, owned by and in charge of Pierre Plante the promoter as master, left Montreal at about nine o'clock in the evening, with- out cargo, and drawing ab'^'it five or six feet of water; having on board Joseph P (iuin, a branch pilot for and above the harbour of t^ueboc, as pilot, and having the lights prescribed by law in the position which the act re([uires. In the prosecution of her voyage to Quebec, she .Umk.i M(I north slion; iih titr an tlu> i^aMtuni oiid of thoHo isliuHls, Slio then took the main clianiicl and tho proper course for that purpose. At this point tho north channel and tho south ciianm-l, or that on tho Hoi!th Hi7 Frhhuj. 20/// j}f,iir}>, 18(i;3. WASHINGTON IRVING— DdRKAXT. ]'.y Iho gonoral in,nn-(imo law, as well as niidor (ho provisions of th.' -Mrnliant Slii,,],!,,.. Arf, .loscrtiou from thu ship in tiio course ol tho ^•oya<,'o is h.^d to ho a Ibrfuituro of tho aiitocedont wa-os L'iuni'd by (lio pai'tj-. " Kiitry of tho (k'sortiou in tho ofTiuial lo--hook doenuul sufnci..nt l>roof, unless tho seaman fan show, to the satisfaction of tho Court, that ho had sulllciont reasons lor leaving,' tho shiji. Costs aro not usually dorrecd in Courts of Admiialty against scanion who are unsuccossfiil in thoir suits; a decrno for costs wimld, in most cases, suhject tho seaman to imprisonment without hring productive of any real advantage to tho other party. Tills case camo before the Court upon a reference, made WAsinN,;.,.,,^ under tlie authority of tlic Sliip2iiiig Act, hy the Judge of ^\''':i^ the Sessions of tlio Peace of Quebec, before whourthe ori-inal suit fur wages was brouglit. Judgment.— //on. Henry Blaeh, C. R This Is a suit for wages, brought by the promoter, AU'\. M. •Donald, against t!'e sinp Washington Irving, uikKt the foHowing circumstances :— The promoter was shipped and signed articles in the usual form at Loudon, in England, on a voyage thence to Quebec and Montreal, and, if re- Miiiiwl, to any other place in British North America, and I'ack to the port of final discharge in the United Iving- dom, the probable length being stated in the articles at about six months. Tho ship sailed (.n the voyage, aniw.l at Quebec, went to Montreal, took in jjart of her cargo tor her return voyage, came to Quebec and completed it ; ;'iid sailed for London on the 27th of November last, in 'ow of a steamer down tlic St. Lawrence, and came to anchor opposite Crane Island, in the evening of that day. u 98 CASKS IN IIU; VI( r,-AP:\tIliAI,TY (Dl'Iil Wasiiinukim Iiivi.vd. The steamer had tried to lake tlie sliip tlirough tlie float- ing ice, but liad failed td do so, and deterniincd leaving the ship at anchor. A breeze sprang np from the east- ward, and she returned to Quebec, and anchored off Indian Cove on Sunda}', the .'>()th November. The master came up to Quebec and called upon ilr. Coker, Lloyd's surveyor, who returned Avith him to the ship, at about two o'clock, P.M., on that day, for the purpose of inspecting her, and ascertaining what damage she had received, by having been chafed by the ice in going down, and whetlier she was fit to proceed on her voyage to England, Mr. Coker, who was examined in the case, states that, accompanied by the master and Mr. Crawford, one of the agents for tlie ship, they went round the vessel in a boat, and caused the pumps to be tried twice. He also says he found no serious damage outwards, that she maile no water, and that in his opinion .she Vi'as fit to proceed on her voyage, and should not have returned to port. The master then made an arrangement for the steamer Victoria to come foi" the ship at five o'clock ou the Monday morning to tow her down tlie river, and ordered the ship to be hove short by three o'clock. The steamer came at five, A.M., but all hands ou board, except the master and the mate, having refused to proceed, the steamer was allowed to proceed down tlie river without the Washington Irving, but taking another ship which succeeded in getting to sea. On the Monday, after the refusal of the men to proceed, the ship was brought over from Indian Cove to Crawford's wharf, in the Lower Town of Quebec, where carpenters were employed iintil three o'clock on the following morning, in rei)airing the chafed sheathing. After this, Mr. Coker was again called upon to inspect the ship, and he says, that after having done so he found her perfectly seaworthy, and fit to proceed on her voyagu to England. In consequence of the mate's having reported that some of the seamen were still dissatisfied, the men were sent for by the master and I'Olt I,()\V);i! CANADA. 09 came ;r, All of them, except tlie promoter and four V^amhsotos othe..s, uoreed to proceed o,i the voyage, but the promoter j!^'^^!!:_^ comnig forward as spokcsmau for himself and the four others, refused for himself and them to proceed ; an.l shortly afterwards, without obtaining or asking leave, they came ashore an.l went to a tavern in the Lower Town. One of the four returned voluntarily. Three others were ''••ought on board by constables, under warrants from the pohco-ofFice, but the promoter was not to be found. The steamer was alongside to tow the ship down, and the master shipped three new hands, one in lieu of the pro- moter and two extra hands, and made an entry in the official l..g-book of the refusal and desertion of the pro- moter. The vessel sailed at three o'clock in the after- "oon, in tow of the steamer, and proceeded as far as L'Islet, about forty miles below Quebec, but was com- pelled to return by the ice, and was towed back to Indian Cove. The ship lay off' Indian Cove until the 4th of December, when she was liauled inside the block. On the morning of the fifth the master saw the promoter on board, who came up to liim and asked to be allowed to take away his clothes, but the master treated him as a deserter and refused to have anything to say to him, and ordered him to leave the ship. The 25()th section of the Merchant Shipping Act pro- \ ides, that whenever a question arises, whethei^the wages <-]• any seaman or apprentice are forfeite.l for desertion? it shall be sufficient for the party insisting on the forfeiture to shew that sucli seaman or apprentice was duly engaoed in, or that he belonged to the ship from whicli he is alleged to have deserted, and that he quitted such ship before the completion of the voyage or engagement, or if ■such voyage was to terminate in the United Kingdom and the ship has not returned, that he is absent fron? her and that an entry of the desertion has been duly made in the official log-book ; and thereupon the desertion shall, H 2 100 (•Asi;s i\ ■iiir. \ici:- MiMniAi.'i'V Cdiirr Wamiiin(;t( I lev I Nil. Ko far as relates to any f'nircitiirt! df wm^cs nr ciudluniciits, under the provisions therein het'oro njntaiiied, In.' (hvenicd to })e proved, unU'ss the seaman or apprentice can proihiee a pro[)er certificate of discharj^e, or C((ii otlicru'lfw ,slii'n\ /o the siUlt^fdcdoii of flic Court, that he hnd siij'firient vaisoiiti fill' Icavhi!/ hi,s ,sh'rp. Now, it iippears in the present case, that tlio promoter on two occasions, (hat is, un the Sunday evening and on tlie Tuesday morning, declared his intention to refuse to proceed with the ship on her voyao-e ; that on Tiiesdiiy, when ho knew that the slup was about to sail, ho left her and went asliore to a tavern, and remained there until his place had l)een supplied, and the ship had sailed; and that an entry of tlie facts was duly made in the ofticial log-book, and it is also clear to me that he lias shown to the Court n(j sufficient reason for leaving the ship, and has, therefore, forfeited his wages under the provisions of the Merchant Shipping Act, as well as undi'r the General ^laiitimc Law. Great indul- gence is and ought to be, on ordinary occasions, shewn to seamen who leave their ships, even without leave, for short periods; but if upon the eve of the dejiarture of the ship from a port on her voyage, a seaman ohould, with a fidl knowledge of her inti'uded dejiarture, voluntarily and without leave, (piit the ship, that of itself Avould be strong prima facie evidence of an intent to desert, and it -would require strong evidence of huiia ji rebut the presump- tion ; but in this case the promoter left the ship after cxjiressly declaring his intention not to ])roeeed on the voyage. His excuse seems to have been that she wanted further rei)airs, and that he wished to make complaint to a magistrate ; but there is no evidence that he ever went to a magistrate, tm the contrary he is proved to have gone to a tavern and remained there; and with respect to the alleged necessity of further repairs, his assertion is com- pletely rcl)utted by the evidence of Lloyd's surveyor, of the ofricers uf die ve.shel v, iili whom tlie re^i^oii^ibilily roif i,i)\vi;it CAVA HA. 101 T.lN .vM.mI, ;,i„| in ivli.ni.v „pu„ u|,oso jii,Iu„„,it tl,,. ,viii;.ii.- W.mhv.t., (liT ol' tlir civw wviv willing' (,, j.niccd to sen. I pin- ^"'' "";''- >li''ivf'n', fi-ainst tlio H.'.iii. nf the pmiuotcr, l.iit as it i> iHif iis.al to nivo ,,,sts in casos u! this iiaturo (a), I make iM, order in this i)ohalf. All< ifi, itinl AHi'iiii, lor pidiiiotcr. ,/(MinAUV lUlUT Fiiitui/, ill' Xovnahn'f^HiW-. LII5KUTY--0UKLLKT. 01' two vi's^. ''< boating lo tho wiiulwunl on oppot-ito tucks, it is tlio duty ot tho vi .-?tnl on th«» -tarbouid tuck to keep hor eourso, uikI of llio vcsHol on the hiiboanl ' '<'k to givo way. In a TiiHO of collision botw. on two siiips, it is not enough to sliow that tho accident couhl not bo iirovontcd by tho party at tho iiioniont it ociunoil, if previous nioasuros could havo been ado]>tcd to render tlio occurrouco of it less probablo. It is tho duty of tho person in cliargo of each «hip to render to the other sliip sueli assistance us niiiy be practirablo aiul necessary ; and in cnso ho fail so to do, und no reasonable excuse for such failure bo shown, tho collision will bo doomed to have boon caused by his wrongful act, neglect, or default. LinKtiTv. This cause was instituted by the owners of tho baniuc Anno against the ship Liberty to recover compensation lor the losses sustained by tliem arising out of a collision which occurred olT Pointu des Monts in the river St. Law- rence in the early part of June last. Tlic circumstances of the case are fully noticed in the following judgment : — Judgment. — Hon. Henry Bhich, C. B. This is a suit brought by William Wright, Leonard Wright, and George Wright, of Houth Shields, in England, ownt-rs of tho barque Anne of the burthen of 288 tons, and of which 'J'homas Purdy was master, against the ship Liljcrty of the burthen of 57-5 ton.^, belonging to the port of Montreal, and of which George Shaw and David Shaw arc owners, and Zephir Ouellct was master, to recover damages occasioned by a collision of the two vessels, which took place in the river St. Lawrence, olf Poiute de.s IMonts, in tho night between the 7th and 8th "t' ln.t< ' "t. Doth vessels were in ijallast and bound from i:iUrope to 'Kit i.(i\vi;i; lANAliA. 103 (^MiL'bcL-, and witli uluMit, litty olIiiT.s wltc bcitiii^f up tlio riviT, with tlio wiml, acconling to tlio Aiiuo's juMipIt.' abuiit \\c>t-iii»rLli-wt.'st, and acconliny; to 'liu.se of tliu Liber* i wt^t-rtoiitli-wcHt, making a (bireniu.' bi.'tvvcun tiifin i lour points; but tbis (Uireionfu i~ immatci'liil, for it is slatL'd on botb .sides that llio two vussl'I.s wcro upon oppo- .sitc tacks and closc-liauled, and t! ero is no all'gation of want of sea room, — tliu river being tbero about twenty mill's wide, — or of any cireiimstanco to prevent tlie ordi- nary rules of navigation lioni ap|)lying. The Anne was .standing towards tlie .soutb sbore or I'ight bank, and con- .seiiucntly on the starboard tack, and the Lilierty towards the north .shore or loft bank, and conseipiently on the jjort tack. Tlic wind was a steady breeze, and tiie weather cle.ir, and it is admitted' on bolli sides that eacii ves-sel .saw the otiier, and tlie other's lights, in .sufficient time before the collision, and noticed the direction in whicii the other was proceeding, and that she was beatin<>- to windward close-hauled. Under these circumstances the rules of navigation re([uired the Liberty to keep out of the way, by porting her helm and goitig off the wind iniMiediately on perceiving tlie po.ssibility of collision, and it was the right and duty of the Anne to keep her course (,/). This ruh; ought more especially to be strictly observed at night, when it -s ditKcult to judge of tho precise distance of a vessel, and of the direction in Avhich .siie is proceeding ; and it is clear from the evidence that if the rule had been obeyed by both ves.sols the collision would not have occurred. The ilefence rests upon the a.sscrtion of the peojile of the Liberty that as soon as the red light of the Anne was seen by them at the distance of between half a mile and {.') Tho Shannon, 2 Hagg. 2 14 ; The Woodpark, 7 Notes of 171; Tho Auuo and A[aiy, 2 W. Cases, 397 ; The Lady Anne, 15 l!ob. WJ; Tho Traveller, ibid., Jur. 18; Tho Mary Bannatyne, i;'7, Tho Mary Stuart, ibid. Stuart's L. U. Vice- Ad. E. oou. I.TnriiTr, 10-4 (ASKS T\ TiiF. vui;-Ai>Mri:.\i/rv cdriiT LiBEiiTY. ^ iiiilc the lielin (if tlic Lilicrty was ported, tlio after ~ ^'' ' sails s(Hiaro(l, ami the spanker sheet let go ; and that the ship went four or iive points oft' the wimh But tliey aUemc that tlie Aiuie, instead of keeping her course, kept off the wind, which must mean tliat slie starboarded herhehn, and that this brought lier close to the Liberty ; and that alterwards wlien about two cables' length from the Liberty she luffed up, and her port quarter was brought into collision with the port bow of the Liberty; and that the accident was occasioned solely by her not maintaining her coiu'sc as she was bound to do. The evidence of the people of the Liberty, cxcej)t that of the mate, who was examined in Liverpool, is avowedly founded on their impression or belief as to what must in their opinion have taken place (m board the Anne, and against this impression or belief we have the positive assertion of the master, mate, seanren, and hands of tlie Anne, that she kept her course full and by the wind. The mate of the Ijiberty, it is true, asserts positively that the Anne altered her course, that she was keeping away Avhcn he came on deck, and afterwards luffed up, and that she first starboarded and then ported her helm ; but he says also that he saw no lights on board of her, and could not when he went on deck say which tack she was on. He says that l>efur(; he went on deck In,' heard the second mate sing out, " Ship ahoy, where are you coming," which shows that the other ship must have been very near ; and he says t' at the other ship was at the time he got on deck about a quarter of a mile off, right ahead, or nearly so. He says the Liberty wMII!.\LTV COUIiX LiDRRTV ^ It would seem most probable that tlie look-out kept on board tlio Liberty was not as good as it sliould have been, or as that kept on board the Anne: an inference which may be fairly dra^\n from the fact that the Anne's people all state distinctly that they saw the Liberty when she was yet two miles off; while the people of the Liberty say they did not see the Anno until she was within half that distance, and the mate of the Liberty, who says he came on deck as soon as the alarm was given ot the Anne's appn^ach, states that the ships were then about a quarter of a mile or a little more apart; and it is admitted on all sides that the night was clear, and the mate himself says that a ship's light could have been seen two miles off. It appears also from the evidence that there were at the time about fifty vessels beating up in that part of the river, and that this fact had been observed by the people of both vessels : so that there was every necessity for the utmost possible vigilance and care ; and if the collision occurred from the want of a proper look-out on board the Liberty, it occurred by reason of the want of that proper care on the part of the people which the circumstances of the case rerpdred. It is not enough to shew that the accident could not be prevented by the party at the moment it occurred, if previous measures could liave been adoptetl to render the occurrence of it less probable; and it does appear such measures might have been but were n.^t taken by the Liberty to avoid the accident in question. But further, it is provided by the 33rd section of the Alerchant Shipping Act Amendment Act of 18(52, that " In every case of collision between the two ships it shall be the duty 'of the person in charge of each ship, if and as far as he can do so without danger to his own ship and crew, to render to the other ship, her master, crew, and passengers (if any), such assistance as may be practi- cable, and as may be nccessai-y in order to save them FOI! LO'.VIOU CANADA. 107 troiii any danger caused by the collision : in case lic fails so to do, and no reasonable excuse for such failure is sliowii, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect or default." And it is alleged and proved in this case that, after the accident, the Liberty did not stop to render or offer to render any assistance to the Anne; but, on the contrary, proceeded on her way, and was not a-uin seen by the Anne's people until the second day after the accident, when she was seen off Manicouagan, and, again, when after some search and diflficulty tliey discovered and recognized her in the harbour of Quebec iiN the ship which had come into collision with them. Nor is it alleged or shewn on the part of the Liberty that tliero was any loasonable excuse for such failure to comply with this humane provision of the Act ; and this failure alone, if the case were otherwise doubtful, would, under the statute, fix the responsibility of the collision on the Liberty {h). It may not be irrelevant to remark that I am relieved IVoni the consideration of the question, whether the present was the case of vessels meeting, to which, under the pro- visions of the Merchant Shijjping Act and our own Statute, the rule requiring both vessels to port their helms would a^ily. Any diffic.ilty which might have arisen as to what was intended by vessels meeting has been removed by direct decisions of the High Court of Admiralty of Knglaud, confirmed by the Judicial Committee of the Piivy Council (c), that the term meeting applied only to a case when vessels meet in opposite directions end on or lilHEIlTY. ('') The Inflexible, Swabey, ■i.j; Tlio CluoiJiitra, ibid., l.'Jo; 'i'ho Halcyon, 1 Lushington, 100; The Arthur Gordon, ibid., -'-; The Indopondouco, 14 Muuio's Privy Council Cases, IH (1,5th March, ISfil), and Lu-shington's E. 277. ('■) Tho Queen of the Orwell, (19th Nov. 1 803), 7 Law Times (N. s.) s;if». 108 LinKUT TASKS IN' Tlir: VK'K-ADMIIJAI.TV (U>VUl "early so, aii,l not t.> sailinr. vessels on opposite tacks crossing so as to involve risk of collision ; and it is satis- fiu^tory to know that these decisions have been confirmed, and all anil.iguity removed by the late Act of the Imperial Parhament, LT, & 2(J Vict. c. fiS, amending the Meichant Shipping Act, and by the regulations made under it which came mto force on the .0th of January, 18(1:3, and have been promptly adopted by the Canatli of November the salvors left Bnrnabe Island in tlio schooner, intendin,L,' to take ' er to Quel)ec. They had to work day and nii^ht at the iiumps until lli<; 17th, when finding the pumps wearing out au.l the water gaining on tliem, they were forced to run the vessel ashore in the river Oty, where she still lies. There, Lou's M. Lavoie having joined them, they disharged the cargo, and stoi-ed it safely, employing for that pur]>ose the necessary men and vehicles, and lia\ding the vessel up in (U'der to protect lier from the ice. In doing all this tlioy were occupied for three weeks, and disbursed large sums oi money amounting to not less than 47S dollars, in payin" men for pumping, landing, and storing the cargo, and getting the vessel out of damage from ice, besides giving their time and lalxiur. Such is an outline of the facts of the case abo- "-h there is no dispute; nor can there be any doubt that tlie .....e is one of derelict in the sense of the maritime law. The vessel was found deserted and abandoned, and this clearly without any intention of returning or recovering the vessel ; for neither master noi- any of the crew were found on board, or in the neighbourhood of the wreck, or have since been heard of. The saving of the vessel was attended by great labour and peril, and no inconsiderable cxi)ense; and the salvors succeeded only after severe and long-con- tinued exposure and hardship; and their act was oni' of great gallantry and humanity. It is clearly the iuteivst of the contmercial world that action^; of this kind .--huuld von r.owF.n canada. l>o properly appreciated and lil.erally recomponsod • the an.ount to be awarded rests in the discretion of the Court I'-, tins discretion is not to be exercised arbitrarily or wthout due regard to the principles of law, and the prac- tice of the Courts. It appears to be the general sense of 1.0 maruune world that the rate of salvage in cases of I orohct should not in ordinary cases range below one- tl'Td nor above a moiety of the property; and in a case as late as the year 1858, the Judicial Con,mittee of the invy Councd. composed of some of the most eminent junsts of England, reversed a decree of the Vice-Admiralty Court of the Bahamas awarding seventy-six percent, in a most nientorious case of salvage, and reduced the amount to hfty per cent. (a). I consider the present ca,se as a most .Meritorious one, and feel inclined to give the highest rate of reinuneration to the salvors, but I cannot but consider niyself bound by the decision of the Privy Council, and Hhall therefore decree to the salvors the one moiety of the value of the schooner and cargo, and their legal costs (b). Gowen and Lloyd, for Salvors. Ldicvre QC, for Henry Starn ,s, owner of the schooner, and f.n- Alexander Saunders, owner of the car^o 118 (") The Inca, 12 Moore, P. C. l^t'P- 1S9. Before the Right Hon. Dr. Lushiiigton, Lr)r(l Kingsdowii, Sir Lawrence i'(<,.l, !^ii John Taylor Coluridgi-, and Sir Cresswell Cre.sswell. {b) The Franris Afaiy, 2 Ilagg. 8!»; The Eeliance, ibid. !M). Makir ViCTolUA. If 'I 114 CASKS l\ TIFF, VICK-APMinArTY COt'UT British Lion. Tuesday 5ih Decemhev, 18(15. BRITISH LION -Mann. Under tho Vice-Admiralty Courts Act ISO.'t, tho Tourt cnn enforce tho paymrnt of roascnabic- towuj^o, Imt has no power to enforce an ngrocmcnt to employ a particular tug, eithor for a dofinitn or an indufinito (juantity of work. Where a tender is refused sinii-ly on account of more boinf,' all.'pod to bo due, it is not nocossory that tho amount tendered should bo tendered in coin. Judgment.— //on. Henri/ ^^«^^'', C. B. This is a suit for towage brought by the owners of the steam-tug Mars against the ship British Lion, and her owners, under the following circun-'stanccs. The ship A.-as coming up the St. Lawrence to Quebec, and on tho ^tn of October last, when off the parish of St. Jean on the Island of Orleans, about twelve miles below tlie city, she met the Mars looking out for employment as a tug ; and the latter ran alongside and inquired whether the ship required to be towed up. The master of the ship asked the terms, and the master of the tug asKcd forty dollars; but upon being offered twenty dollars agreed to take it, but alleges that he did so on condition that the Mars should have the towing of the ship, if required to be moved whilst in port, provided,— as he states in his evi- dence,— she was powerful enough, and if not then upon condition that she should be assisted by another. This agreement is denied by the master and owners of the British Lion, and has not in my opinion been proved, but on the contrary disproved by the evidence of the mate, second mate, boatswain, and steward. Even if it had been proved it is too indefinite and imcertain to be en- forood : nor w;is ihwe such reciprocal obligation as would FOR r,„wi.;n CANADA. con,.i(„to a o™„„ct. If ,l,„ agreement l,„d boon nrovod „ - allosoJ, „,„n,a„ boon ™moio„„y „or,„i„, I ,,,SZt =^^^" bave great doub,, a, to tbo power „f t,,„ 0„„n ,„ ,,o,.l .-i ... No doubt .be Court ea„, under tl,e .tatulo 20 VV, c. 21, enforce tbo payment of reasonable towage but it "- no. «eo„, that it b„s power to enforce an aglemen '■.-"Tlova pnrt,cular tug ei.bor for a definite or a" „ Je .u.e ,:.,u.„y of work ; and Dr. L„„,;„„„„ i„ ,|,e ca,e - 3 & 4 V,ct, c, 65, ,. 6, giving sindlar iuri.,dicti„„ to .1.0 I .Si. Court of Admiralty of England Tl.oro La -o». 1,0,0,1 of demand for t„e„,y dolL, for mo g „e .1. f.-...n „pp„.s„e tbo Cbamplain Market to DiaLnd bu bour, a d„tauce of about balf a mile, wbieb occupied about an bour an,l a balf; but it appears ,b„t tbere was an express agreement to perforn, tbis service for ten dot Is .... tl,eca,m beyond tbat sum for detention is alt g ,: ...nded. V.OW ng the case as I do, tbo ow„e« of I .» wore onftled to twenty dollars for the first bead of le .....d, and ten dollars for the second, and no me ■•. ..I .be,se sums appear to have been tendered fir,t in a el.o.,ue on tbo Bank of British North Amoric d -■"...liy, -n notes of the City Bank. The am mt I .-i was refused a, being insufficient, not on tbo In, , .»' .' ought to have been made in current 001,!!" .I.e.e .s no doubt that whore a tender is refuse.l i'n.p .... account of more being alleged to be due i n^ ^■".^'"■"1. a f .be Ad,„i,.ai y Co , ' l: T" -'-■cm.). The action is diLissed;i:ic:t:i:'i ports, p. -M, (2oth April, 18(il). l' "i '.j ]tf'!'l \ ''""f' ^^'d- (^) Black ... S,.th. Poakoi Lie' Ha^gl^ 'n '^r '■''"'■"0; C'olo ,.. Jilake ibid - /^'- /'^cuco of Courts of I 2 110 CASKS IN Trrr. vrcr-AnMinAi.TY rornr IiHiTts n Lion . n,ili>pt this course with the less regret, ns tlie promoter thought proper to endeavour to compel piiynicnt of tiio claim by arresting the ship just as she was on the eve of sailing, by which alone considerable loss ar.d inconvenierico were sustained by the owner. Andreius and Andrcivs for owners of Mars. Alhnjn and AUcyn for owners of British Lion. tho Admirnlty Jurisdiction, Lnw, iind rnictico, II., 411. Thoio is much strictuass in the doctrinn of tho CoTTunou Law Court.'i, in relation to tlio manner in which a tondor should he mado, and tho production of thouionoy, even when tho offer of payment is rejected. Tho strict doctrine of tho common law is not recog- nized in tho Admiralty Court.s. A sincere offer of payr nt by a party, who has the as of making immediate payment, has often boon luled in tho District Court of tho United States for the district of Massa- chusetts to be a good tender ; and tho actual production of the money is not required when the offer of payment is rejected. It has often been held in that Court, that where a tender has been made in current bank bills, or a checino on a bank drawn by a merchant of estab- lished crodi*. it was a good ten- der unless specially objected to ; ond where this kind of tender is specially objected to, tho party tendering it is considered to bo entitled to a reasonable time to procure coin whore coin is spe- cially required. A premature action, where a fair offer of HOi'lement has been made, ex- poses tho libellant to the loss of his costs, and, in some cases, to the payment of costs to the ad- verse .party, and tho proctor, if acquainted with tho facts of the case, to tho inimadversion of the Court, for tho impropriety of creating unnecessary litiga- tion for tho sake of costs. Dun- lap on the Practice of Courts of Admiralty, p. 103. roll I,()\Vi;U CANAliA. 117 Friday VJ/h Janunry, isfJO. ANGLO-SAXON- Westoartii. Tlu, ownoiH of a vossol. having a duly licoused pilot on board. U.0 protodod by th., Act 27 & 28 N'ict. c. i;i, a. U, from liubilu; liu .luiimgos ocLutii.m,.,! by tho uct of tho pilot. Tho pil..t in charge is solely ro.pon.siblo for getting tho vessel UM.l.T wiiy m unpioiKT circumstances. WlK.ro the mastor and crow did thoir duty, and tho accident u...soontnolyfrom their obedionco to tho orders of the pilot tho owners of the vessel are hold entitled to tho exemption provided by ilow fur steam tugs employed in towing merchant vessels are bound to be Hubserv.o..t to the orders of tho pilot in charge ; and il S ir.r"'"'' 1^ '"*'' ""^'' "^^""^^ "^^y the ordJrs of w pilot of the vessel in tow, cases may occur where he may bo jiistiliod in not doing so, •' A.tual possession of a vessel is sufficient title against a mere stranger or wrongdoer. This was a cause civil and maritime promoted by the mviicr of the barge Emcr again.st the ship Anglo-Saxon t. recover for a total loss, resulting from a collision be- tween the Anglo-Saxon and the Prussian ship Theodor Ik.l,ren.l, astern of which the barge was fastened in the I'Hrbour of Quebec, in the forenoon of the 27th of May last The facts of the case are fully set forth iu the followino-' judgment of the Court. ° Judgment.— //on. Henry Black, C. B. This is a suit brought by John McNaughton of Mon- treal, Forwarder, as sole owner of the barge E.ner 157 tons register, of which George Guerard was master, against the slap Anglo-Saxon, 1104 tons register, owned by John I'amworth and David Jardine of Liverpool, merchants a!.! whereof John Westgarth w.u. master, for dama-^es Anoi.o-Saxov. 118 CASES IN THE VICE-ADMinALTY COURT Anglo-Saxon, occasioned by a collision between the Anglo-Saxon and a Prussian vessel called the Theodor Behrend, astern of which the Emer was moored ; and by which collision the hawsers fastening her to the Theodor Behrend were broken, and the Emer being thus cast adrift was carried foul of the ship British Lion, and was so damaged by the colli- sion that she sank in deep water and was lost. The facts of the case appear by the pleadings and evidence, con- sisting of an unusual mass of depositions, to be as follows. On the twenty-seventh of May last, in the forenoon, the Emer, having taken in a cargo of coals from on board the Theodor Behrend, had dropped about thirty feet astern of her, and was then fastened to her by two hawsers of suffi- cient size and strength. The Theodor Behrend was then lying at anchor in the tideway in the harbour of Quebec, about half way between Point Levi and Quebec, and about half a mile from each shore. On the same day about an hour or an hour and a half later, that is between eleven and twelve, the Anglo-Saxon, laden with timber, and drawing twenty-two feet six inches Avater, was lying at Bogues' Booms, from half a mile to a mile above the Champlain Market, ready for sea, bound for Liverpool, having on board a crew of twenty-seven men, all told. The master of the Anglo-Saxon had engaged from Messrs. Thomas Burns and John G. Burns, two steamers, the Kate and the Mars, to tow her as far as Indian Cove ; and the corporation of pilots had appointed Paul Paquet, a branch pilot for and below the harbour of Quebec, to conduct her down the river. At the time above-mentioned the pilot was on board and in charge, and the steamers being on the spot and ready, he placed the Mars, said to be about seventy or seventy-five horse power, on the port side of the ship, and the Kate, of about thirty or thirty-five horse power, a head at a distance of about sixty fathoms according to the evidence of the master of the Mars, and about thirty-five or forty fathoms according to that of FOn LOWEK CANADA. 119 the pilot, aud in this order he left the booms. As soorx a.o.-s.xo. as the ship started, her master, having business in town ^ ' loft her in charge of the pilot, but with the two mates and other hands on board. The pilot expressly states in his evidence that the two steamers appeared to him to be sufHcicntly powerful to tow the ship. The weather was hne and clear, the wind light from the eastward but almost c;.lin, It was spring tide, and the tide had been ebbing alH.iit three hours, and was running strong down. The (iiitbec side of the river was a good deal crowded with vessels, ^.nd on starting the pilot caused the ship to be sk'ered so as to cross the river towards the Point Levi side where there were fewer vessels. He directed the steamer Kate, on leaving the booms, to steer so as to pass astern of the brig James Caskey, lying a short distance ahead, that IS above, the Anglo-Saxon in the stream, and about hail a mile above, and a little to the south or Point Levi sKle of the Theodor Behrend. He says that from the >""...ent they left the booms to the time of the accident h. stood on the Anglo-Saxon's bow, and with his hand a.rected the master of the Kate, which was about thirty- hve or forty fathoms ahead; and that the master of the Kate acted according to directions, until, to the great sur- prise of the pilot and without any order, he let go the tow rope. He says that when this was done the Anglo-Saxon was about one hundred fathoms from the Theodor Beli- rond, and a little to the north or on the Quebec side of licr. Becoming alarmed, and thinking that the Mars alone would not be able to tow the Anglo-Saxon clear of this vessel, he ordered her port anchor to be let go, which was done, and sixty fathoms of chain having been paid out. It stopped the Anglo-Saxon, and brought her bows to the stream; and in swinging to the tide the Anglo-Saxon came into contact with the Theodor Behrend, the star- board cathead of that ship catching in the mizen rigging on the port side of the Anglu-Saxon. The shock was 120 CASES I.V THE VICE-ADMIKALTY COURT ASflLO-SAXOS . not severe, doing but trifling injury to eitlier vessel, but it caused tiic Tiicotlor Bohrend suddenly to swing to- wards the Point Levi side of the river, and the jerk, or possibly some movement of the Thcodor Behrend in tlie same direction to avoid the collision, broke one of the hawsers by which the heavily-laden Emer was fastened to the Theodor Behrend ; and the whole strain coming upon the other, carried away lier windlass to which it was made fast; and the Emer being thus adrift, without any sail or motive power, and being unable from the loss of her wind- lass to come to an anchor, was carried helplessly down by the strong tide, until she struck the ship British Lion, and was so much injured by the collision that she sank almost immediately in deep water, and became a total loss. For the damage thus occasioned the present suit is brought, on the ground that the collision occurred solely through the '• inattention or want of skill of the persons on board of the Anglo-Saxon." One ground of the defence is that the Emer was not fastened astern, or on either side of the Theodor Behrend at the time of the collision; or that if she were so, the people on board of her had before the collision slipped one of the hawsers and cut the other, thus causing the loss of the vessel by their own fault! There are also allegr.tions that the fault was with the Theodor Behrend, which it is asserted was hailed from the Anglo-Saxon before the accident, and desired to star- board her helm and to pay out her chain, which it is said she did not do. The first ground of defence is clearly unfounded, the Emer is proved by positive evidence to have been fastened astern of the Theodor Behrend as alleged in the libel ; and all her people assert positively that the hawsers were neither cut nor slipped, while there is nothing but negative evidence or opinions on the other side : and as to what was or was not done on board the Theodor Behrerul, it should, if material, have been proved by witnesses from on board that ship ; no such witnesses FOn LOWER CAN-ADA. 121 '< have been called, nor does the evid nee adduced in any way supply their place. It would, moreover, seem imnia- torial whether being at anchor and suddenly hailed by a ship drifting down upon her, and within a few fathoms of her, the people of the Thoodor Behrend did or did not immediately comply with the request made to them, which they may not have had either time or means to do. The more material ground of defence is. that the Anglo- Saxon was not in charge of the master, or any person employed or engaged by her owners, but was in the charge and under the control of the pilot, taken on board and placed in charge in conformity with the requirements of the law, and that all her movements were directed by liui). By this defence the owners of the Anglo-Saxon, \irtually, though not in express terms, allege that the collision, if occasioned by the fault of any person on board the Anglo-Saxon, was occasioned by the fault of the pilot in charge, and consequently that they are exempt from responsibility, under the Act 27 & 28 Vict., c. 1.3, s. 14, and the decisions in cases where the employment of pilots' IS compulsory by law. The Anglo-Saxon was beyond all question in the sole charge of the pilot, her master did not mterfere, nor would he have been entitled to interfere in getting her under way, or in moving her; he had placed at the disposal of the pilot such steam power as tlic pilot himself declares to Jiave been sufficient. The time of starting, the placing of the steam tugs, and the whole course to be pursued were absolutely under the pilot's control ; he knew or ought to have known the state and force of the tide; it was broad daylight and fine weather, and he saw the position of the vessels in the harbour. If he thought there was not room enough, or that the current was too strong, or that the steam power furnished him was not sufficient, it was his duty to say so, and to refrain from running any risk. He used his own judgment, and if he erred in so doing the owners of the AnoloSaxon. 122 CASES IN THE VICE-ADMIRALTY COURT Anolo-s^xon. Anglo-SADMIRAI.TY COURT lie would not have advanced the money unless upon such secuntj. The advances thus made amount to over ,i'371 currency. The repairs wore coinpleted in April, 1862, whfu It being too early for a voyage to Quebec, the master took a charter to Mayagiioz in the island of Porto Rico, whence he returned to Halifax in June, 1802. The freight outward and homeward earned on this voyage was paid over to Ml. Prioux, in part payment of hLs advances, which were l)y such payment reduced to £170. The Adonis was then chartered to return to Montreal, touching nt Sidney in Capo Breton for a cargo of coals, leaving Halifax in ballast. It is in evidence that under the laws of Nova Scotia, the vessel would have been liable to attachment for the balance of Mr. Prioux's claim, for which he all along considered that he had a lien on the vessel, as the master had also understood that he had When the vessel was about to leave for Canada, Mr." Pri<,ux called upon the master for a bottomry bond, to secure the unpaid portion <.f hi.? advances, and so to avoie voyage ks not stated in the case, but it is clear that it was to extend to some place beyond Halifax, and to which an advantageous charter might be obtained. I therefore hold, that the voyage from Quebec in the autumn and W..k oMontre.a^^,„t^ and that tlu voyage to Porto Rico was an intervening voyage if ..ot part of that originally contemplated, which hmay liave been. And though the advances were made ante- cedently to the voyage to Porto Rico, and the bond was not executed until after the completion of this voyage it .s stdl a valul bond, given for advances necessary to en^^ble the Adorns to prosecute and complete her original voy- age (.). It was evidently the understanding of the parties tlmt the money should be secured by a bottomry bond ..or could the voyage have been comj^leted if the bond had not been given. It is not pretended that there was any fraud or collusion on the part of the master, or of Mr run.x, who. on the contrary, appears to have acted with He most perfect good faith. In point of fact bottomry I'onds are generally, and must often, from the very nature 127 AnoNis. ('0 The Mary Aun. 4 Notes of ( 'asos, .370. :m. 128 Adunis. TASKS IN Tirp; vi(i:-Ai)MinAr/rY connT ^ of tl.o trnnsaction, i,o given after tlio whole si.pj.lics an.l ivp-urs Imvc been furnished an.l mmle. for the phiin rea- son that the advances requiie.1 to meet the expenses can rarely he a.scertainc.l nntil that period. It is sufficient, as Lortl Stowell observed in a parallel case, that the un- derstanding of the parties at the time was that the ad- vances should be secured upon the vessel, and he added ^vhat IS very pertinent to the case, that the party who' lent the money had a right by the maritime law, to de^ai.i the slup and cargo until the debt was repaid, and U was ordy by means of the bond that the owners had the bene- fit of the liberation of their property {h). Bottomry bonds bemg for the benefit of the shipowner, and for the general advantage of commerce, are greatly favoured in the Court of Admiralty, and where there is no suspicion of fraud, every fair jnesumption is to be allowed to support them. I therefore pronounce in favour of Mr. Prioux. with costs against the owner, who has contested tha validity of the bond. Vannovous for the bond-holder. Cmnphell for owner of Adonis. [h) LaYsabel, 1 Do(lson,27r,. Oriental, 3 W. Rob -'I.T- nml Soe^alBo TLeVibil.a, 1 W. Kob. S. C, 7 Moore-.s V, h. C^Z, I ; Tho I.ochiol, 2 W. Eob. .'54 ; 398. The Edrnond, 1 Lush, 57 ; Tho ''"" '""I'R CAVADA. 139 llW;?^.,rifnry 11/;, .z-,,/,^ j,^^,. RO(;KA\VAV_n,)ssANCK. JrDOMENT.-//oH. //oiry i/^.c/!'. C. B. This .s„it is bronght by Henry Rr.V.. of Hull in F '•■""I owner of fbp «l.,-/r. / "«««. "f Hull, in En,?- Rockawat. "^'^ 0' the ship Countess of EUrin n^ninsftt,^ ^^ — '— ' w CI, an.M ,,„i P,„r,ck Henry Carvill, „|| „f N„v,v , "'^•^' ^^"^- On tlie morn i)cr of the S^n.l ^f ti * «l Ove ton, ,„rtl. „, „nd ,v|,e,.c„f ti,„„„, Uit,,,^,, „ .or „rr,vod i„ the harbour of Q„oboc from Lo ,U ■■ .0 oroj ,„ t,,o lowerpart of f,e upper .,alla,,t gro nd T '"': ■'""' "'" "''='«■'<. "■« Rockaway, a bar,! of """'« proy B„,sanee wa, master, arrive.l in the bar ;;;■"■ charge of the pilot Cele.tin St. Pierre, No 3 and - y Inm bronght ,„ anchor in the same ballast gronn nni :r:: T'IV^'^' ^^ ">^ .nffo.entwrtne.„e Iho ' " '"'''^'' '^S'" '» '»<> -ble,' EMn :.. t'™'.""' "" "'" f'" "f ">» P°"'-s „f ami 1 1* " :' ''""■ '^ '="'"'=•» '<"«"'. -1 those ex- "' "cJ o„ the other side at one, one and a half and two *, lengthy The Coon.es, of KIgin lay nea'rer to Z "" Levy th„„ ,0 the Quebec shore, the Rockaway i' 130 CAHKH IN TIIK VIcT-ADMinAl.TY rOfItT RllfiuwAr, nouily abreftst Init ratlior lower down, an.I nenivr to tlio Quebec, by the distance between tboin. Tl.o tid.; was Hood when th(> R.xkaw,iy arrived. The two vessels lay in this position until the 2-tth, swinjjinjr with the tido four times each nf Elgin was the arst to come to anchor, if was the iluty ,"- '"-"y on .hi, point. If .1 ; " 'I'.™! on ll,„ p„rt „f i|,„ c,„„„t„,, „, 'j, ^'» ;- «.Ml.oU„„,,no,i„,K„CVu„tot„f^^ '««1.. "". .Li. -vn, .1,0 ™„,„ „f „,c. „„.i,lo„t. : '''--™. 1,0 0,1,0,. ,i.loJo,,yti,i,,a,ut it ,oc„,,i, .'"-''■I" to ,„v „l,;ol, „„„,„o„t i, o„,„,, B,„ ?' --., tl,o„ tl,o Rockaway, l,oi„„ „,„ ,,, ,,,^^0 a l«« i"n as to „„J,o .1,0 O„„nto,s of Kl.-in', l,o,l „, - .I..- fault of tl,o b,.a„cl, pilot „1,„ ™1„ „,,„:;" f'' "H-vay o„ ,1,0 »2„,1, a ,„„,,,l,t |,or lo anchor , ,1 .o«,,o.„fti,oH,.k,„va,,v,,,,i,M...o,i„„o.iof::;,' I l..y. I ,0 two voHsoU co„l.l not havo o„„,o into co„. .» t .f anchored at a proper ,li.„a„co f,o,„ oaol otT .|"l- ono at loa.t cha,,.,,! l,cr anchor. Now t ." .' '"c.|y,w.,r„ on tho part „f tho Rockaway that ,l,o d , ; "-S hor„„cho,,a„,l that her p„,,iti„„Vr\ 1, a^ '•"'•;«» exactly the «a,„e a, it had been fr„,„ the fi" • ;;r ;»...., co„„.„.,io,ed „„ tl,„ o,hor side, the .itnol' ;"■■■'-■'" Elgin .,„yi„, „,„, „,„ j^ - ':• ""I '!'» «'.r„l, l,„t ,|,cy ,|o not ,ay t,.at «ho d,4-e, ';■:;;-'- On ,l,o„tl,orl,a„d,thow?; .„: ^t. ;,:,':';'"■' "^'='«'r'™''''" «theacci,io,t' ; '""" •'""■" '■"l"fv"ly t" th.. Rockawav than she w„ , he contrary, that tho .accident wa, oecalned l,y ' ft...g .lown to ,1,0 R,..k,„,,. ,p,,^ y .V: :;";';" ""'" f"™ '» ''- ^-n from the ■' «•'■'■ """ '■■ "1- .he stream, l,„t rather off the " L vy shore; „,„1 „,eCo„nto« „f Elgin, ,,ei,„ ,!° .;Nng .1,0 w,n,l ,„„,.e and the tide less, boti ,1' y 'ue, .uid cdt.,:;„g ine eUL later tlian ti.e Ruck- 181 R'lCKAWAr. 132 CASES IN THE VICE-ADMIKALTY COiqrr RooKAWAY, away, niny liavo lioen driven across tlio stream towards tlio Rockaway, withcmt its beinj^f in tlie power of her crew to prevent it; they say tlieniselves that she liad noway, and lier hehn had tlierefore no effect on her, in other ■words that she was unmanageable. The strength of tlie wind is differently stated on the two sides : the people of the Countess of Elgin represent it as strong enough to drive the Rockaway upwards against the tide, and in this case it would be strong enough to drive the Countess of Elgin across the tide towards the Rockaway. The people of the Rockaway say that it was light, and with all sail set the Rockaway would not have stemmed the tide. In this contradictory state of the evidence it seems utterly impossible to say positively what was the cause oi the accident; but it does appear to me that this cau.se was not anything done or improperly left undone by the people of the Countess of Elgin, or by those of the Rockaway at the time of the accident; and that the collision occurred either from the pilot's having so anchored the Rockawt.y, as to give the Countess of Elgin a foul berth, as asserted in the libel, or from some cause which does not appear from the evidence, but which, wliatever it was, the evi- dence does not lead us to suppose to have been the fault of either vessel. In these two cases the law would be the same, the owners of the Rockaway would not be respon- sible, and each party bears his own costs. In the case of inscrutable accident foreign juri.sts appear to have held that the damages sliould be divided ; but this rule has never been adopted in the Engli.sh Courts, either of law or of Admiralty ; it has on the contrary been commented upon and repudiated, and I am of course bound by the Knglish precedents (a). Fortunately the damages in this case are very sligiit. The judgment is therefore that the suit be lli^nli^setl, (^ach party ]>aying his own costs. ('<) The CiithcriiiP, of Dover, lliij'!'. ll.'-, l.VI ; The Mui.l (.f Aucklinid, (i Xdti's ol' Cases, L'lo. roli U>\\KH CANAKA. 133 Fri((,(>/ 25tk October, 18G7. SE'^'RET-Davlsox. To entitle the owner of a ship, having, by compulsion of law, a 1 'lot on board, to tho beneht of exemption fxom liability ft. v .1.-U.0, the fault ma.t be exclusively tha^ of tho p"ot. ' " \Vhon, the accident was attributable to a deficiency of look-out and nmna^ement on board the vessel doing the damage and no Tl,i.s was a cause promoted by tl,e owner of the steam- tug Lake St. Peter, against the steamer Secret, for damage cau.sod by the sinking of the Lake St. Peter, in the night the 8th August last. The following judgment was U.is day pronounced in the case. JuDOMKNT.— //ow. ffeyiry Black, C. B. In this case the suit is brought by E.iouard Gingras. olo owner and master of the steamer Lake St. Pete^ o; tl.o burthen of sixty-two tons, a tug steamer used for ihe pnrj)ose of towing vessels and rafts in the river St Law- rence, against the steamer Secret, of the burthen of 204 tons, owned by Michael Connolly, and whereof William >Hv.soa was master, to recover damnges sustained by tl.e Lake St. Peter, by a collision which occurred in the ..1. of the 8th of August last, on that part of the river i^alvc St. Peter. lett Quebec in the forenoon of that day - a voyage to the Riviere des Prairies behind Montreaf - 1.0 purpose of towing a raft from thonce to Etchemin.' nf(:LKOD. m Ill cAsr.s IN Tin: vhi-aiimiisai/iy coi'ut '.\i'(l Xuvemhn', 18(59. OllIKNTAL— Moiiuis. A vopscl ill motion is bound to steor clrar of ono at nndior, and nothing ran excuso hor doiii;,' so but inovitablo accidont. Tho owMors, not the pilot, arc rosponsiblo for the insufticiency of the look-out. JuPGMKNT. — Hon. Henry Black, C. B. Orikntai. This suit is brought by tho owner of tlie Countess of ~' Durham, a barciuo of the burthen of 298 tons, whereof Williiirn Kennedy was master, against tho barque Oriental, of the biuthcn of GGS tons, for ilamajfos done })y her to the Countess of Durham, by u collision which took place off Patrick's Hole on the lliver St. Lawrei e, about nine miles below Quebec and near the town boundary of the harbour, a little before ton o'clock o,. the night of the lOth of Se])tember last. Both vessels were inward bound, the Countess of Durham from Youghal, in Ireland, and the Oriental from Plymouth, in England. The pilot of the Countess of Durham had brought her to anchor in the evening, and she lay in the channel at the distance of from an eighth to a quarter of a mile from the land on the north side, the Island of Orleans. Tho side-lights had been removed, and the bright anchor light hoisted in the fore-rigging at the proper height above deck. A proper hK)k-out was kept, and so iar as respects the Countess of Durham it is admitted on the record, that the collision in question took place without any fault of the people of that vessel. The night was fine, though not very clear, but distant lights could be plainly seen. At the time of the collision the wind was blowing a moderate breeze from the eastward, or up the river ; and the tide was at the I'Dll r.OWI'.U CANAHA. 145 liist (|ti.artPi- of the Hinxl. Tliu Uricntul was comiii- up Orikntal. tlio rivor undor sail, (lio intoution heiiig tliat hIiu Hhould ' " l»e tiikoii to Indian Cove, soinn niili's lii^dior up. Slio had shortened sail aloft, but hor lo\v(;r HaiLs romained sot, and |.iovt'ntcd the pilot, master, and man at tlio wheel from seeing ahead of the vessel. The louk-out man on the forecastle \va.s a Prussian of the name of Olto Arense, .speaking imperfect English, and whoso evidence has been taken through an interpreter ; and tho man at the wheel was also a foreigner, a Hanoverian, whose evidence was also taken through an interpreter. The people of the (.'oiintesH of Durham saw tho Oriental when she was at least a mile off, about two points on tho starboard bow. It i.s admitted in the preliminary act that the Countes-s of Durham was first seen by the people of the Oriental at the distance of about a quarter oi \ mile. A .steamer had just before gone down th<: river, pti; sing the OrioMtal on her port side. The look-oi t v...m say- that just as the ■steamboat pa.s.sed ho saw and rcoitod u, white light on the port bow; he could not spt.v.c positively a.s to the • listanco, but thinks it was about half a mile distant. The man at the wheel and the boatswain say that they heard the look-out man report the light as on tho port liow ; an apprentice who was aloft says he hear-l the look- out report a light on their port bow, but the master and mate say tho report was " Light a-head ; " and the pilot says it wa.s, " Pilot, a .steamer a-head!" but that about half a minute afterwards the look-out man reported, " It is not a steamer, it is a bright light a-head." On hearing the first report, the pilot gave the order to port helm, and the Oriental having answered her helm quickly went off to tho starboard about two points and a half or three points. On the report of a light a-head, the pilot reversed liis order, and put the ship's he Im to starboard, the master a.ssisting to carry this order into effect. The master says there was only a Tuoment's interval between 14G Oriental. CA8ER IN THE VICK-ADMin AITY COURT the putting the hehn hard-a-port and the time it was starboarded. Tlie look-out-man and tlie apprentice say the liglit when first seen was on ihe port bow : but in tliis they appear to have been wronj,', all the witnesses from the Countess of Durliam stating that they saw the Oriental on their starboard bow, whicii they could not do. unless their vessel was on the starboard of the Oriental. And the pilot and master of the Countess of Durham state positively that when the Oriental was about four or five cables lengths from them, she showed her green light about two points on their starboartl bow, and that if she had continued her course she would have g..ne clear of them ; but that all at ouce her helm was ported as if to pass between them and the island, and that seeing tliat she could not cro.ss their bow without danger of collision, they both called out to her to starboard her helm, whicli was done, though too late to avoid the collision, the star- board bow of the Oriental striking the starboard bow of the Countess of Durham, doing her considerable damage. It is clear that there was fault on the part of the Oriental, for the rule is that a vessel in motion is bound to steer clear of a vessel at her moorings, and nothing can excuse her not doing so but unavoidable accident, the via major, which no human skill or precaution could have guarded against ; and the cpiestion is whether the collision arose from the sole fault of the pilot in charge of the Oriental, so as to relieve her owners from responsibility, or was wholly or in part occasioned by the fault or neglect of the crew. Now it appears to me that the collision did not arise from any fault or neglect on the part of the pilot of the Oriental, whose orders appear to have been perfectly correct, according to the report, or rather reports, made by the look-out-man, who does not appear to have kept a sufiicientlv vigilant look-out, or to have reported correctly and in sufficient time the position of the Countess of Durham, which he must have seen clearly and in due I FOR LOWER CANADA. time if his look-out liad boon as good as that kciit on board the Countess of Durham, whose people saw the Oriental about a mile off, and who say tliat oven when the Oriental was a quarter of a mile from them she would iiave avoided the collision if she was kept on the course sIh' was then steering. Nor does it seem that it was judicious on the part of the Oriental that the man stationed at her look-out should be a foreignei, speaking English imperfectly, ami consequently liable to make two reports slowly and incorrectly, and perhaps more or less unintelligibly. It is satisfactory to find that the con- clusion to which I have come as to tlie non-culpability of the pilot, after a very careful consideration of the volumi- nous evidence on both sides, agrees v^^ith that of the master and wardens of the Trinity House of Quebec, on the charge brought before them against the pilot, for having by want of due care and diligence caused the coljision in question. The opinion of practical men in a case of this kind, though not binding on the burt, is always of great value, and I am pleased to know that in this instance their jtulgment coincides with my own. The judgment is therefore in favour of the Countess of Durham for the damages sustained, to be ascertained in the usual manner. ircdvn (& Mnrmy, for the Countess of Durham. J. W. & W. Cook, for the Oriental. 147 OniENTAt. L 2 148 CASKS IN TIIK VICE-APMIRAI/rV COVIXT Friday, 2nd Bccemhcr, 1870. HIBERNIAN— Smith. Whcro a collision was occasioned by tho improper stooring of a vossel, tho oxclusivo act of tho pilot, tho o^s-nors of tho vessel woi-e held entitled to tho exemption provided by the stat. 2. & 2H \ict. This exemption not affected by the constant employment of tho same pilot by tho owners. ihnKRNTAn. This cause originated in a collision whicli took place ' ' ' between the steam-ship Hibernian, while coming down the river St. Lawrence on her homeward voyage from Montreal to Liverpool, and two barges going up the river in tow of the steamer Canada, under the circumstances noticed in the foUowing judgment. Judgment.— //o/i. Hmry Black, C. B. These suits have been brought against the Hibernian, one of tho steamers of the Montreal Ocean Steam Ship Company, of the registered burden of 1391 tons, whereof William Henry Smith was master at the time of the accident on which the suits are founded, the one by the Northern Transportation Line, an American company, owners of the two barges, A. McFarren and Dora, and the other by John Redpath and Company, owners of 22.57 bags of sugar, said to be of the value of 22,750 dollars, wldch were on board the barges at the time of the acci- dent, the barges being on their way from New York to Montreal, to which city they were conveying the sugar. On the 16th of June, 18G8, the barges were proceeding up tl... .iver St. Lawrence in tow of tho steamer Canada, which had also six other vessels in tow, as well as the two FOU LOWER CANADA. 149 liiirges, being astern of her ; these vessels anil the barges were placed two and two, each two side by side with each other. Nearest to the Canada were two schooners at a distance of from fifty to a hundred feet from her; then a schooner and a barge at perhaps rather less distance from the first two ; then came at a still shorter distance the A. McFarren and the Walker, another similar barge, side by side, and lashed together, and steered by a steersman at the helm of the Walker, which was on her starboard side, the Walker having gravel on board ; then came the Dora, and a similar barge called the Harmony, also lashed together side by side, and steered by a steersman at the helm of the Harmony, these two barges were a few feet only astern of the A. McFarren and Walker, the Harmony had tar ami turpentine on board as freight, and the Dora the sugar. About lialf-past eleven o'clock in the forenoon, the weather being tnL-n clear and calm, they had reached a part of the river a little below Pointe aux Trembles, and near the IsleSt.Therese, about twelve miles below Montreal, wliere the channel is narrow and tortuous, and marked by three buoys. About the same time the Hibernian was coming down the river on her voyage to Liverpool, in charge of the branch pilot, Adolphe Lisde ; when about four or five milts above the shoal, or hatture, of Point aux Trembles, her people observed the Canada rnd her tows, coming up the river and distant about three miles; and the Hibernian nuist, from her great size, have been seen from the Canada about the same time, indeed the pilot of the Canada says he saw the Hil)crnian at a greater dis- tance. The vessels were then approaching each other very fast, the Hibernian going with the stream at twelve or thirteen miles an hour, and the Canada coming up against the stream at the rate of about tiu-ec miles an hour. At the time the Canaila was perceived from the Hibernian, the engine of the latter was slowetl and the hhip went " dead slow," until a little above the second IIinERNIAN. i 160 CASES IN THE VICE-ADMIRALTY COURT lliDEBNiAv. biloy in the narrow part of the cliannel a-e Hibernian : they say that the channel was from 300 to 400 feet wide ; that they kept to the north side of it, — which was their proper side, — and as far to that side as they could safely go; and that the Hibernian could have easily passed without touching them: but this is denied by the Hibernian's people, who say that they were as far to the south side of the channel as they could go, without danger of running ashore, the Hibernian drawing at the time nearly twenty-one feet aft, and that the Canada and her tows,— as neither she nor any of them drew more than ten feet,— could have safely gono much further to the northward, and passed without accident. About twelve or fifteen minutes after the vessels first saw each other they came into collision ; the Hibernian passed the Canada and the first four vessels which she had in tow i^lwo and two), but struck the A. McFarren, which was lashed to the Walker, and then struck the Dora, both vessels being struck on the port bow. The Dora sank immediately, and the A. McFarren in about seven or ei'dit minutes after the collision. The master of the Dora was drowned. Tiie Hibernian passed on into the open channel of the river, but as soon as possible slowed and sent her boat back to assist in saving the crew of the baroes and in giving whatever help they could. The barges were atterwards rnised, and Kingsley, one of the hands on board the A. McFarren at the time of the accident, and who was one of those engaged in the work of raising them, states, in his evidence, that they were found lying in between sixteen and twenty feet of water, but that shallow water was close by. He says also that m FOR LOWER CANADA. 151 he (Iocs not know at what distance the sunken barges iiibkknian. were from tlie shore, but that ho knows they were oGl ' feet lioni the buoy placed on the south siile of the cliannel, because he measured the distance, but he does not say in what direction, whether at right angles to the course of the cluumel or diagonally. He did not measure the distance from the north shore, but at a rough guess he tliinks they were twu hundred feet from the island. Kach of the parties charges the other with negligence and with want of proper skill and care ; and the owners of t\n' Hibernian further allege that even if there had been any fault on the part of that vessel, which they deny, yet that iiiey would not be liable, inasnmch as she was in charge of a duly licensed branch pilot for and above the liarl)our of Quebec, as by law required, and whose orders were exactly obeyed and carried out by her officers and cic'w ; who were sufficiently numerous, and in every respect well (]ualitied, the ship being in perfect order and tli'>ioughly found and equipped. In answer to this, the i'|»posite parties say that the Mont.cal Ocean Steamship Company, owners of the Hibernian, were not at the time of the accident under any legal obligation to take tlie pilot, Adolphe Lisee, to conduct their vessel, but were by law allowed to choose from among the duly licensed branch pilots, their own pilots to be exclusively employed by them in piluting the ships of the company ; and that the pilots so empluyed by tlieiu are their servants, for whose acts they are responsible. The owners of the Hibernian deny the validity of this plea, at the same time that they allege that there was no fault on the part of Adnjphe Lisee, and that the sole responsibility for the accident rests with the opposite parties, who might have avoided all risk of collision by proper care an fact of the pilots having been selected by the owners of a vesso! iXTi'l oon.stantly or frequently employed by them in pilotiiig their \essels ; and whether he mav be on this {iccouui. con.sidered rather as a servant voluntarily engaged by them, than as an ordinary pilot tak^i under the compulsory provisions of the law. The (|iicstion has fortunately for us arisen in England, and has been decided by the High Court of Admiralty in the case of the Eatavia. In this case it was held that the exemption from liability under the Pilot Act Avas not taken away from the owners of the damaging vessel by the constant employment of the same pilot to pilot their vessel up and down the River Thames for a period of fifteen years. Dr. Lushington, in pronouncing judgment, said that the contrary position would be highly detrimental to the interests of navigation, and lie considered it highly advantageous, not only to the owners of vessels, but to the public at large, that the same pilot should be constantly employed on lioard a vessel, inasmuch as he becomes 166 CASES IN THE VICE-ADMIRALTY COURT Okrmast, Cut ,f Admiralty, adhering to the ancient maritime law, would have apportioned the damages equally between the respective owners of the vessels ; but by the Act now in force respecting the navi- gation of Canadian waters, 31 Vict, c. 58, s. 6, which agrees exactly with the 298th section of the Merchant Shipping Act (a), the owners of the Germany, Avhich contravened the rules prescribed by the second section of the Act, are pre- cluded from recovering any portion of their damage from the owners of the City of Quebec. This ia the con- struction put upon the Merchant Shipping Act by the Judicial Committee of the Privy Council (6), and is, of course, the only construction to be put npon the corres- ponding enactment of the Canadian Parliaiuent. And the Germany being at the time of the collision in charge of a licensed pilot, compulsorily taken on board and put in charge, and her manoeuvres having been directed by him, her owners would not be liable even if the fault had been solely with her (c). Both actions must, therefore, be dismissed, but without giving costs on either side. Frederick Andrews, Q.C., Hon, Ulric J. Tessico, AJoIphe P. Caron, and Frederick WillUivi Andreius for the Quebec and Gulf Ports Steam- ship Company. Juhn ir. Couk and William Cook, for owners of the Germany. [o) 17 & IS Vict. c. KM, s. 298 P. C. C. KVJ. {hnperiul). {<•) ;U Vict. c. 58, s. 11 (Ca- [b] Tho Jamoi<, 10 Mooro's tiadiuu). » Fon LOWER CANADA. thereby well acquaiutcil with tlie master and crew, and is loiiseijuently more likely to conduct the vessel amicably and properly. I not only feel bound by this decision as a jiKHedcnt, but I aj,'rcc perfectly in the opinion expressed ill it. I may further remark that the Act of 1804-, ifiating to the Trinity House of Montreal, expressly recognises the right of ship-masters and others re(iuiring branch pilots to select such of them as they may think fit, other than those engaged to pilot the Ocean Mail Steamers, or any of them. The master is bound to take a qualified pilot, under a penalty, though he may select from such as are qualified ; the case would be different if it were optional with him to take or not to take a branch pilot at his pleasure. The question whether the accident was or was not occasioned solely and exclusively by the fault of the pilot, as well as the other questions of fact in the case, are of a jmrely nautical and technical character, and in considering tiiem the Coiu't Avill therefore avail itself of the practical experience and professional skill of Captain Armstrong, harbour master of Quebec, and of Captain Ashe of the Royal Navy, superintendent of the Observaiory at Quebec. The case is either one in which there is plainly no fault on either side, or in which there must have been fault which caimot be specifically ascertained and assigned, or in which the fault not only exists, but can be ascertained ; and this last head is sub-divided into the cases in which both parties are to blame, and those in which the party iidlicting the injury or the suffering party is alone in fault. These questions must be determined by reference tit the rules of navigation and seamanship as applied to the facts disclosed in the evidence in the cause. The ([uestions submitted to the gentlemen by whom the Court is assisted, will, therefore, be the following: 1. Whether the accident arose from unavoidable circumstances, without fault being attributable to any of the vessels or their 153 IIlllERNIAV. m Mm 4 m m» I'OU LOWKII CANADA. 167 l')th i^eptonhei; 1871. SAMUEL GILBERT. — A foiuipii vcsnol illegally fisbing in Ui'itish waters within throo milea of tho const of riiaiidii, mid nut navigatuJ according to tho laws of tho Uuitod Kingdom, or of Canada, and not having a license to fi.sh ; contrary to tho provisions of tho Canadian Acta of Parliament, 31 Vict, c. Gl, and 33 Vict. c. 15, declared to bo forteitud. Before Hon. Henry Black, CD. The Honorable Sir John Alexander ^laodonald, Iv night Commander of the Most Honorable Order of the Bath, Attorney-General of our Sovereign Lady the Queen fur the Dominion of Canada, who, for our said Lady the Queen, prosecutes, in this behalf, against the ship or vessel called the Samuel Gilbert, and the tackle, rigging, .'ipparel, furniture, stores, and cai-go therecjf, seized by Najwleon Lavoie, commanding the Dominion armed sciiooner La Canadienne, and Fishery Officer, as liable to forfeiture, and against all persons in general having, or pn.'t ending to have, any right, title, or interest therein. Jn pain of parties citeil not appearing. Her Majesty's saitl Attorney-General r^^Uirned tlio monition duly exe- cuted, and referred to ihe ''fl. lavit of Napoleon Lavoie, Fi.sliory Oflicer, on boanl of tne vessel called La Cana- dienne, belonging to and in the service ot the government of Canada, and employed in tho service of prutcetiug tho I''i>lieries, the seizor, heretofore exhibited a'.u . eiaainint; in tlir registry of this Couii. The Judge, at pt.Stii.'i of the ^uid Attorney-General, having heard tlie s;id affidavit road, on motion of counsel, on behalf of Htr Maj-jstv b" interlocutory decree, pronounced the said ship or vessel. Samuef, Qn,uEnT. #1 108 CASES IN THE VICE-APMIRALTV COfUT Samuki- (Jll.UEllT. Sainucl Cilljcit, to have been at tlie time of the seizure thereof, oi\ the tweuty-fourtli day of July now Last past, founJ ilh>gally fishing (in British waters), within three marine miles of a coast of Canada in Her Majesty's dominions in America, at the place called Parrot Island, on the north side of the Gulf of St. Lawrence, about two miles north-wcst-by-west from the island, and within a distance of two miles and three-quarters from the shore and coast, not included within the limits specified and described in the first article of the Convention between His late Majesty King George the Third, and the United States of America, made and signed at London on the twentieth day of October, 1818 ; the said ship or vessel, when so found fishing as aforesaid, being a foreign ship or vessel, not navigated according to the laws of the United Kingdom or of Canada, and not having a license so to fish ; contrary to the provisions of the Acts of Parliament of Canada (31 Vict. c. 61, and 33 Vict. c. 15), and as such or otherwise .subject and liable to forfeiture, and con- demned the said ship or vessel, called the Samuel Gilbert, and the tackle, rigging, apparel, furniture, stores, and cargo thereof as forfeited to our .said Lady the Queen accordingly. 151 IIinicnNiAN. CASES IN THK VICE-ADMliULTY COrUT people, or proceeded from the fault of any of the vessels or tlieir people ; and if so, then from the fault of which of them. 2. Coulil the Hibernian, a screw steamer, coming with the current, when the Canada and her tows were first seen, have stopped and allowed them to pass above the narrow portion of the channel before proceeding further, without danger to herself; and if she could, ought she to have done so in ortler to be free from blame ? 3. Could the Hibernian have safely passed further to the south, and if she could, ought she to have done so in order to be free from blame, or did she neglect any pre- caution which she was bound to observe in order to avoid the collision. 4. If there was any fault on the part of the Hibernian, was it attributable .solely and exclusively to the pilot, or did it arise from any neglect or want of skill on the part of her officers or crew. 5. Could the Canada, a paddle-wheel steamer, going against the current, when the Hibernian was first seen from her, have safely remained where she was until the Hibernian had passed her; and if she could, ought she to have done so in order to be free fn)m blame. 6. Could the Canada and her tows have safely gone further to the north side of the channel, or on the other .>:ido of Eagle island; or, if she could have safely done either, ought she to have done so, in order to be free from blame. 7. Was it sufficient for the proper management of the A. iVlcFarren and the Dora, that they should be steered by the helms of the barges to which they were respectively attached ; or was it necessary that each of them should have had a steers- man ; and was the accident in any way attributiiLle to the want of such steersman ? 8. Did the collision arise from any other fault of the Canada, the barges, or their people, or any error on their part by reason whereof they are not free from blame. The assessors having heard the whole of the arguments FOR LOWER CANADA. of counsel nnd road the ovidencc, lifivo given in writing an opinion to the following effect : — " No. 1. That the collision did not arise from unavoid- al)lo circumstances. It appears to us that the barges were sunk without any fault or uofect attributable to them, or tJK'ir crews, or to the Canada by wliich they were towed, and the blame rests with the Hibernian alone. " No. 2. When the Canada and her tows were first seen by the Hibernian, she might, without danger to her.self, have sto|)pi'd, and allowed the Canada and her tows, to pass above the narrow part of the channel ; but we do not think that it was necessary for her to have done so. " No. 3. That the Hibernian could have safely passed further to the south, and should have done so, by porting her helm at the proper time. " No. 4. The collision did not arise from any fault of the officers or crew of the Hibernian, but solely and ex- clusively ft ;n that of her pilot. " No. 5. The Canada could have safely remained where slie was, when the Hibernian was first seen from her, until that vessel had passed ; but we are of opinion that there was no necessity for doing so, as there was room for them to pass each other. "No. 6. That the Canada could not have safely gone further to the north side of the channel, as one of her tows, by porting her helm to avoid collision, ran ashore. The south of Eagle Island is never taken by steamers having vessels in tow. " No. 7. That when two barges are lashed together, and liaving only two ropes of six feet in length, one helmsman is enough for both barges ; and that the collision was in no way attributable to the want of a helmsman in each barge. " No. 8. The Canada, her tows, and their crews, are not to blame for the collision, as it is known that a tuir- steamer with so many vessels in tow cannot alter her 155 Hibernian. FOR LOWEIl CANADA. 169 '2hit May,lH72. FRANKLIN S. SCHENCK. A claim for a schooimr, boing a foroigii vossol, and cargo ro- jcctcnl, and furlbitiao of thorn declr for libhiug iu Cauadiau watord coutrary to tho Fishery Laws. Bkfoke Hon. Henry Black, C.B. 'I'lio Hoiiorablo Sir John Alexander Macilonald, Kiiijrlit Commander of the most Honorable Order of the Ijutli, Attorney-General of our Sovereign Lady the Queen lur the Dominion of Canada, who, for our said Lady the Queen, prosecutor, in this buhalf, ajrainst tho schooner or vessel called the Franklin S. Schenck, her tackle, rigging, apparel, furniture, stores, and cargo, seized, as liable to forfeiture, by Daniel Marshall Browne, Esquire, Fishery Ollicer, on board of the vessel called the New England belonging to and in the service of the government of Canada, and employed in the service of protecting tho Fisheries ; and against James Williams Bradley and William Hooper Bradley, the younger, of llockport, in the State of Massachusetts, one of the United States of America, merchants, and Marion Grimes, of the City of New York, in the State of New York, merchant, inter- vening, and claiming the said schooner or vessel and cargo. The Honorable George Irvine, Her Alajesty's Solicitor- General for the Province of Quebec, for the said Attorney- General, prayed the Judge to reject the claim of the said James Williams Bradley, William Hooper Bradley, and Marion Grimes, for the said schooner or vessel and cargo, and to pronounce that he had fully proved the contents of Frankiih s. sciientk. ICG CASES IN THE VICK-APMIllALTY ( OlIRT IIiDKRNiAi*. course roadily. Tlio Ililjcniiaii luiving soon her so far ofl', ^"^ ' oiiglit to have known this, ainl taken proper j)recautiuns in time to prevent ;i collision. "J. I). ARMSTituNO, Harbour Master. " E. D. Ashe, Coinmunaer, II. N." Captain Armstrong and Captain Aslie exempt the master "»!■) . r;w ;f tie Hibernian from blame, and attri- bvite the fnult which gave occasion to the damage to the pilot, foncnrring in this opinion, I must dismiss the owners of the Hibernian from this suit, solely upon the ground that the master was bound to take a pilot on board, and place him in '„ . . onformity with the reciuirements of the law ; and the collision having been occasioned entirely by the fault of that pilot tli" owners arc entitled to exemption from liability (ct). Jfolt, Inline, and rcmhcrton for Promoters. J. W. (mil W. Couk for Hibernian. (<() Thisjiulgmcntwnsaffirmed in the rrivy Council on the 3id Dec. 1872. rrosont:— Sir JiiTiK^s ■\Villiiim Colvillo, Sir JJcburt rhillinioro Mud^'i' of tho High Court of Ailmiialty), Sir Biirnes reaco.k. Sir Montiiguo Kdwaid Smith, and Sir Robert Torrott Coilior. Tho t'ollowiiig is a summary of tho decision : — " The Canadian statute, 27 & 28 Vict. c. i;5, intituled, 'An Act to amend Iholiaws respect- ing tho N. ration of Canadiai Waters,' ei '.ts, by sect. 1-i, that 'No owner or master of any ship shall be answerable to any person whatever for any loss or danuigo occasioned by the fault or incapacity of any qualili"'! pilot acting in charge of such sliip within any place where tho omi)loyment of such pilot is compulsory by law ; ' and tlio Canadian statute, 27 & 28 Yict. c. 58, s. 9, enacts, t'l'u, ' Ihe master or person in charge of each vessel exceeding 125 tons, coming from a port uut of tho Piovinco of (iuebec, and leaving the jiortof (Juebec for Montreal, shall take on L. .1 /d a branch pilot, for and nbovo tho harbour of Quebec, to conduct such vessel, under a j nalty equal ir ..mount to the I iotago of tho vessel, which penalty shall go to the 1 decayed Pilot i-'und :' //< Id, on appeal, afli.: img the judgment of tho Vice- Admiralty Court of lower Canada, in a causo of liumaj^o by coiiiaion, tb it tnuso FOIt I.OWRR CANADA. 167 statufos aro to ho rrnd and con- stiuoil tng(>th(ir as being in j'ltri >i'itin'il, ooustituHiig a compul- ■•-'ivy i>ilotiigo, and fximoiiitinj,' tlic (iwiKir of a vo>st>l, having such pilot on board, from lia- hility for damage inlliitcd on imiiMior vospi'l." " Whoro a statntf> inflicts ii ponaltj- for not doing nn act pro- vided for, penalty enacted implies tha :'■>>• in a legal conipnlsion do tho act in question, and thin prineiplo is not affected by tho fact that tho penalty has a jiarticnlar desti- nation. 4 L. R, r. V. A. .jU, ITlIlKUVIAN. mw 158 CAHES IN THF, VICK-ADMIUAI/rY COURT (Jkrmanv, ClTV OF (^liimF.r', ThHr8,hvj, 5th July, 1871. r.KIJMANY— CinATiAM. CITY OF QIIKBEC— toNNKM,. Tlic fiiiilt of Olio voHst«l will not oxcuso any want of caio, ' Merchant Shipping Act. TIioso were cross actions in respect of a collision which took place on the first of May, 1870, off Green Island, in the river St. Lawrence, between the steamer City of Quebec, owned by 'he Quebec and Ciulf Ports Steamship Company, and the Germany, one of the steamers of the Montreal Ocean Steamship Company, in conseq\ience of which collision the City of Quebec was so much damaged that she shortly afterwards sunk, and the Germany also sustained damage from the sponson beam of the City of Quebec having penetrated In r starboard bow. The cir- cuinstnuoes under which the collision occurred are noticed in the following jtidgment of the Court. Judgment. — Hon. ITonvy Bhick, C.B. Tlie collision out of whicli these suits arise took place .•d)out a (luarter past three o'clock in the morning of the first of May, 1870, nearly abrea.'^t of the \i\^\k)v or western end of (Jreen Island, in tho river St. Lawrence. It was not davlight, but the weather was clear iind calm, the lights on Green Island, Red Island, and the Brandy Pots were ail visible from both vessels : upon these points there Fon i,(nvr:R canaiu. 100 iH un controversy. The City "?" Quobec, an iron paddle- auRMAUT, wheel steamer of about '>22 tons burthen, under the com- oFCirF.Bno. iiiand of ThomaH Connell, well found, ecjuipped and ' ' manned, had Hailed from Quebec at four o'clock in the afternoon of the previous day, with passengers and cargo, on a voyage to Piotou and I ho intcrmodiate porta. Con- nell, the master, was a licensed pilot for the river St. biwrcnce below Quebec, bnf was at the time tiu{)h)yed by tile owners of the City of Quebec as master, and not as }iilut of that vessel. He had gone round the deck shortly before the collision, and finding everything right, and sieing nothing indicating the approach of any ve.ssel, had gone into liis room to refresh himsrlf by washing. Very soon after this Joseph Dupins, tlie second mate, whom he had left in charge with instructions as to the ciMirse to be steered, and with orders to call him if any- thing occurred, rapped at his door and told him that he saw a vessel coming up, and saw her red light. Dupins states that before calling the master he had ordered the helm to be ported. The master says he came out as soon as possible, and stood close in front of the wheel, when he perceived a ve.ssel's red light on the City of Quebec's port how, about half a point to the north, and about eight times her length from him, which as he says the Germany was about three hundred feet long, would make about half-a-mile. The tide was flowing, and the Germany was AT1MIRAT.TV COrRT Germany, City 01" QlKFiKr'. put her liolin to port, but received no answer; in a second or loss afterwards, ho says, the Germany's cut-water was over his paddle-box, and he had just time to jump off it to avoid being wounded. The two vessels sides then came together, the starboard bow of the Germany coming into contact with the port sponson beam of the City of Quebec, which penetrated the starboard bow of the Ger- many about four feet ; it seems to have been afterwards broken off about four feet further, the City of Quebec appearing to have been supported by it until she sunk when the s[)onsor beam was left about four feet inside, and about as much of it projecting outside of the Ger- many's bow. The City of Quebec sank about twenty minutes after the collision, but her passengers and crew were all saved except one. Connell says that when he left the deck in charge of the second mate, the City of Quebec was steering north-east-by-east, which is the correct course at the place for vessels going down the river, that is, from the Brandy Pots to Gieon Island light. When he was called and first perceived the Germany, the course of the City of Quebec had been altered about a point and a half from the course before mcntiojied : and when the Germany struck her, the City of Quebec was running about six points to the southward of the north- cast-by-east course. The collision, he says, must have forced the City of Quebec four or five points more to the west, but he did not pay attention as ho was busy saving the passengers. He says that a minute or a little more may have elapsed between the moment when he saw tlio red light of the Germany and the collision. The state- ments of Joseph Dupiiis, the second mate, and of Narcisse Colin, the look-out-man, corroborated those of Connell the master; and Fran(;ois Proulx, the man at the helm, though he does not appear to have seen the lights of the Germany, says, that after the (Irst order given by l)upin.s to port the helm, the City of C^nebec inclined aliout a FOR LOWKR CANADA. IGl piiint towards tlic south, and about another point after the Gbrmanv, socond order of Dupin's, and still further after the ok S'eukc. master's first order; and that after the master's order, " liiird-a-port," the City of Quebec inclined five or six piints further towards tiic south ; and that it was when ii: this position that she was struck by the Germany. Ho adds that the City of Quebec had varied her course about li^ht points between the time when the Germany was first seen and the time of the collision. The Germany, a screw steamer of the burthen of about 2070 tons, under the command of John Graham, the master, was on her voyage from Liverpool to Quebec antl Montreal, having a general cargo, and about !)()() pas- sengers on board. She was well fcmd, equipped and manned, and had taken a branch pilot, Htd)ert Raymond, (HI board, at Father Point, uutler whose charge she was at the time of the collision, and for some time before it, that is, from the time of his coming on board. The pilot was im the bridge directing the course of the steamer when the City of Quebec was first seen. There was a full watch on deck, consisting of Reginald Barrett, the second iitHcer, James Green, the fourth officer, who was on the ctiw at the ship's compass, two look-out-men, one on each how, Christopher Callister, one of the quartermasters of the vessel at the wheel, with two others to assist him, and several others. They agree in saying that they passed Green Island light a few minutes after 3 A.M., and that sliortly afterwards, it may have been a quarter of an hour l)efore the collision, they sighted a white light, which the pilot said was that of a vessel coming down the river, and which must have beeu about nine miles off when they saw it first. They say the light when first sighted was about two points to starboard of the Germany. One of tlu! look-out-men reported the light, and the pilot and .second officer saw it about the same time. They say that when this light was about five or six miles off, and about it " [' 102 CASES IN THE VrCE-ADMIRAETY COURT Qerhant, City OF (Ji;i:iii;c. three points on the Germany's starbonrJ hand, tliey saw also the red and green lights simultaneously with the mastliead or white light for a very short time, not more than a minute. The red light was then shut in, and they could only see the green light and lier masthead liglit ; and that these lights eventually turned out to be those of the City of Quohec. They agree with the people of the City of Quebec as to the place in the river where tlie vessels then were; and that the weather was clear and calm, and that thci'e was room enough. They say that when they first saw the City of Quebec her lights were distinctly seen to the north of the Brandy Pots' light, that the two vessels appeared to be running on parallel courses, and that if they continued on the same courses they would have passed about a mile or a mile and a ouarter from each other, passing each other on the starboa.d side. The Germany continued on the same south-west-half-west, and that when they again saw the red light of the City of Quebec, she must have been over half a mile above the Germany, and about six points on her starb(jard bow, and tliat she must have altered her course at least fuur points, or they could not have seen her red light ; that she seemed to be steering as if approaching the Germany, but still rounding to ; and that when she came a-beani of the Germany her red light only was visible, and .she ap- peared to approach the Germany, and that they did not see her green light after slie had altered her course as above stated. The second otHcer says that when the City of Quebec was about two or three hundred feet from the Germany, he ordered the engine to be stopped, and finding the vessels still approaching each other, lie ordered it to be reversed. Everything he did was done by direction of the pilot, who, immediately after the order to reverse, sung out to the man at tlio wheel, " Starboard ! " About a minute after the last order the collision took place. He does rinf ihink ilie Gerniaiiy deviated half a point from ron I.OWKR CANADA, 163 hor course from the time the order to starboard was given to the time of the collision : this he attributes to the engine having been reversed, wliich atfects the influence of the helm on the vessel. Ho says that the collision took iilace by tlie port sponson beam of the City of Quebec coming into contact with the Germany's starboard l''W, and penetrating it about twelve feet; that this and the forestay of the City of Quebec overlaying the Ger- many's jib-boom, helped to keep the City of Quebec afloat ; and that, when the sponson beam broke, the City of Quebec sank, about twenty minutes after the collision. It may be observed that the Germany's people all assert that the City of Quebec, from the time they saw her first until the collision, was always on the Germany's starboard ii.uid, and that if the helm of the latter had been ported, it would only have had the effect of bringing them into contact more nearly at right angles. It is urged also that I'von supposing the order to starboard to have been wrong, it was given in a moment of excitement and alarm, cnusod ])y the alleged fault of the City of Quebec. It will be seen therefore that the assertions of the |)'npleof the two vessels, as regards their relative posi- tions at the time each was first seen from the other, are, ns is usual in such cases, directly ojiposite. If the asser- tions of the people of the City of Quebec are correct, the vessels were proceeding on directly opposite courses, or ' 'id on, and so that if they had continued on the same tlirv must have met, and the City of Quebec obeyed the 'atutory rule in such case by porting her helm, and en- • favouring to pass on the port side. If, on the other hand, the people of the Germany are to be believed, the vessels when first seen by each other were on parallel "Hiises, but so far on each other's starboard, that if ttiey Iiad continued the same courses, they would have passed 'Icarof each other, .so that the rule cited was not aj.pli- 'al:!f, ,ui(i the City uf Quebec ought not to have altered u 3 Qermant, City- OF Qi'EnEC. Ui CASES IN THE VICF.-ADMIRAI.TY C(M'1!T Germany, OllY OF (JlDllKC. her course, but to have passed tlio Germany (as it is asserted she had ample room to do) on the starboard si(h\ The evidence being thus directly contradictory, leaves me no satisfactory ground for saying which of the vessels was in the right ; and the evidence given by tlic two gentle- men, Mr. Coker, Lloyd's surveyor for the port of Quebec, ajul Captain Dick, now the ])ort warden of the har])Our of Quebec, does not help mc much ; for they differ from Captain Davidson and Mr. Finnegan, as to the direction in which the blow must have come, the gentleman first named thinking, from the position of the sponson beam, that the blow must have come from aft forward, and the two last inferring from the same circumstance that it came from forward aft. Either may be right, and the first position of the beam after the collision may have been altered by the vessel's swinging more nearly parallel before the beam broke, or the City of Quebec sank. In this state of conflicting testimony upon technical points of a purely nautical nature, the Court has no other alternative than to be guided by the opinion of practical and experienced seamen, on whose judgment and im- partiality reliance may be confidently placed, as to which of the statements in question is probably correct, making due allowance for the bias which the majority of wit- nesses have in favour of their own ships, and whether either or both of the ships was or were in fault, and if such iault lay with the Germany, whether it was solely and exclusively attributable to the pilot, or whether the officers and crow were in any and what way culpable. The City of Quebec having had no other pilot than the master, the last-mentioned (luestiou does not occur in her case, Captain Connell having the command of the vessel, and being continually liable to be called to the discharge of duties inconsistent with that of pilot; cannot be con- sidered as a pilot, so as to relieve the owners from liability. i'lH I'ou i,o\vi:u CANAHA. The nautical assessors jii)p(>iiitc starboard bow of the Cermany, and nut on her port bow, as supjiosed by the City of Quebec, and the red ligh^. of the Germany could not have been seen, as stated in their evidence. Had she been on the port bow, then porting her helm as she did, no collision could have taken place ; and the pilot of tiio Ancaster states that when steering south-west-by ue^t, ho saw the lights of the Germany thrce-«iuarters of H Jioint on his port bow, and the light of the City of Qu.'liec a point and a half on his starboard bow,— the Germany then steering south-west-by-west-half-west. Finm the statement of those on board the Germany, and iiinre particularly of the pilot himself, that the red light of the City of Quebec was seen from the Germany one quarter, or half a mile off, we are of opinion that the li'lm of the Germany should at once have been put • hard a-port,' instead of waiting until it was too late to prevent the accident, when she put her helm ' a-starboard ; ' and we are confirmed in this opinion by the evidence of (lie pilot himself, in which he says, ' Had I not taken the City of Quebec for a tug-boat, I would have stop2)ed the hiim-- for not porting his helm when the red light was ■Hcn on his starboard bow." 165 (tKIIMANT, ClTV OK Qikbf;<'. 170 CASES IN THE VICE-AD.VIRALTY COUHT S. ScllKNCK flio lihcl by him Riven in .1 adinittecl in this cause, (in : bt'lialf of our Sovereign Lady the Quoon, and the said ficliooner or vessel and cargo to have buon, at the time of tlie sci/nre thereof, subject and liable to forfeiture and condemnation, and to condemn the saiiK as forfeited to our Sovereign Lady the Queen ; ami furtlier to condemn the said James AN'illiams Bradley, William Hooper Bradley, and Marion Griuies in costs. CraAvford Lindsay, f^squire, on behalf of the said James Williams Bradley, William' IL.opor Bradley, and Marion CJrimes, pray. ,1 the J-alge to admit the said claim, to pronounce I hat the said Attorney - Cicnernl had failed in proof of the said libel, aud tluit the said schooner or vessel and cargo be restore 1 and delivered up to them. The Judge, having heard the proofs read, and counsel on both sides, rejected the claim of the said James ^^'illiams Bradley, William Hooper Bradley, and Marion Cfrimes for the said schooner or vessel and cargo, by interlocutory decree pronounced that the said Attorney- General had sufficiently proved the contents of the said libel given in and admitted in this cause on behalf of our Sovereign Lady the Queen, and the said schooner or vessel to have been, at the time of the seizure thereof, on the sixteenth day of August now last past, found illegally fish- ing (in British Waters; in the roadstead of Paspebiac, in the Bay of Chalans, and within three marine miles from the shore nt the said place called Paspi biac in the county of Bonavent.i.tre, in the Provii'-o of Quebec and Dominion of Caiirtdo ; Mie said schooner or vessel, when so found fi.shing a,-i ; foresaid, being a foreign vessel, and not Jiaving a license so to fish, contrary to the provisions of the statutes respecting fishing by foreign vessels, and as such or otherwise, subject cuid liable to forfeiture and con- «lemnation, aud condemned the said schooner or vessel, and the tackle, rigging, apparel, furniture, stores, and cargo thereof, as forfeited to our said Lady the Queen "^13^ m Fon r,owEr canada. .'-onliMglv The Ju4.> moreover, con.lomnecl the said Jan... Uui.ams P.a.ll.y. Willian, .Hooper Bra.- .-. and Mar.on Gnn.es. and th. l.ail .iv... i„ their bchallf in the costs occasioned by theii said claiui. 171 Fhaskmn 8. .SCUKNCK. MICROCOPY RESOLUTION TEST CHART .ANSI and ISO TEST CHART No. 2) 1.0 I.I 2.8 3.2 III' m I- illlK ^ 1140 1 2.5 2.2 2£ 1.8 1.25 1.4 1.6 A APPLIED l[VH GE Inc =^ I6'j3 Eont Mom iit'eet r^Z 'Rochester. New York U609 USA JSS i 716) 482 - 0.100 - Phone = 1 71fi) ?SH 'S'iflq - Fni. 172 CASES IN THE VICE-ADMIRALTY COVllX I5fh July, 187-2. Tornado. TORNADO— CiJAWFoiiD. Collision bj' two vcssols -vvhilo sailing, ono on the sturboanl tack, close to the W'iiul, and llio other on the ]i()rt tack : //(■/(/, that the latter was to blaiuo for not i)orting her helm iu time, and that the former complied with the rule of the road by keeping ou a wind close hauled. Judgment. — lion. Henry Black. C.B. Tliis is a cause of damage instituted by the owners of the Norwegian baniue Besteraor against the British bliip the Tornado, for tlie recovery of damages by reason of a collision, which took place between the Bestemor and the Tornado, on the 3rd of May, in the Gulf of St. Lawrence off the coast of Newfoundland. The Bestemor is a vessel of ^oQ tons register, and was then on a voyage from the port of Stavanger, in Norway, from which she had sailed on the 21st of March, in ballast, bonnd for Cliatham, in New Brunswick. The Tornatlo, a vessel of l,()i)7 tons register, had sailed from Greenock, in Scotland, on the 27th of the same month, with a cargo of coals and pig iron, bound for the port of Quebec. The collision occurred between eight and nine o'clock at night. Both vessels had the usual regulation coloured lights exhibited and b.urniug. The weather appears to have been cloudy, but the vessels plainly in sight of each other, the wind being from the south, or, as tho people of the Tornado represent, south-by-west. The case of the Bestemor is, that between eight and nine o'clock P.M., of the 3rd of May last, the wind was blowing fresh from the south, and the Bestemor, under her lower topsails, main mixen and fore-topmast stay-sails. FOR LOWER CANADA. 173 was sailing on the starboard tack, close to the wind, lieading east-south-east; the master and all hands were on deck, and a good watch was being maintained, when the green light of the Tornado was observed on the lee bow of the Bestemor at a distance of about three miles. Tile Tornado approached the Bestemor, sailing on her port tack, and, as far as the people of the Bestemor coidd make out, heading to the west-south-west. As the vessels continued to approach each other the master of the Bestemor ordered her helm to be kept a-port, to put the vessel as close to the wind as she could lie, and during the whole of the time which elapsed from seeing the light to the time of the collision, the Bestemor was as close to the wind as she could lie. As tlie vessels neared each other, the mate of the Bestemor hailed the other ship to put their helm hard-a-port, but got no answer, and shortly afterwards the Tornado struck the port bow of the ]?estemor, doing her great injury, and carrying away her bowsprit, three masts, best bower anchor, rigging, sails, smashing the long boat, and doing further damage to the hull of the Bestemor to such an extent that she was wholly disabled and rendered unmanageable. The colli- sion was wholly occasioned by the improper navigation of the Tornado, and by the negligence or default of those on board of her, in not having kept clear of the Bestemor by porting their helm in time as by law, and the usage of mariners, it is alleged they were bound to have done ; and the same is not in any sort imputable to the Bestemor, or to any person or persons on board her, who all did the utmost in their power to avoid and prevent such collision. It is al&o alleged that after the collision the Tornado and her people went off without taking the slightest trouble to ascertain, and seemed not to care what peril the people of the Bestemor were in, or what damage she had sustained. The owners of the Tornado, on the other hand, allege that on the 3rd of May last, at about eight o'clock in the TonNADO. 174 Tornado. CASES IN THE VICE-ADMIRALTY COURT evening, the Tornado was on the port tack, heading about west-by-soath, under fore and main topsails, double-reefed mizen topsails and reefed topsail, fore-topmast-sail, and mizen stay-sail, going about tl.'ree knots an hour. The wind was south by west, a strong and increasing gale, dark cloudy weather. Her lights were burning brightly, as they had been since before sunset. The master, first mate, second mate, carpenter, boatswain, and the star- board watch were on deck, and a good look-out was kept. As the Tornado was then standing to the west by south, the Bestemor was observed about one mile ahead on the port bow of the Tornado. When first observed, the Bestemor was in the act of wearing, and she wore round coming to the wind on the starboard tack, showing licr red light, and heading about south-east-by-east. The master of the Tornado immediately ordered the helm of his ship to be put hard-a-port to go to leeward of the Bestemor, which order was at once obeyed. The after- yards were squared in to assist the ship in paying off. The Tornado's head paid off very fast until apparently clear of the Bestemor ; the port light of the latter being well on the port bow of the Tornado. The Bestemor again seemed to keep off the wind, opening both her lights, and bearing down on the Tornado, struck her on the fore part of the port cathead, stern on, and then dropped astern clear of the Tornado, leaving the last- mentioned ship considerably damaged. The master uf the Tornado then caused the boats to be cleared away, and wore his ship round to the eastward as soon as possi- ble, and steered back towards the Bestemor to render her all assistance on his part, but could not find the Bestemor, the night being dark with a fresh z^\e. The Tornado in wearing, it is alleged, was carried too fiir to leeward to be able to find the Bestemor. The owners of the Tornado then own that the collision was wholly caused by the improper navigation of the Bestemor, and by the nogii- FOn LOWER CANADA. gencG or c'ofault of those on board licr, ami was iti no degree occasioned by those on board the Tornado. There is no doubt that tlie ships had the wind on oppo- site sides ; the Be.stemor was close-hauled on the star- board tack, and ♦he Tornado was close-haideti on the port- tack. It was, therefore, the duty of the Tornado to get out of the Avay. and it is asserted that timely and proper measures were taken for that purpose, but that tl'e Bestemor was not kept close-hauled up to the wind, as close as she could be, and that she was allowed to fail off from the wind. This seems to be the only question in the case. The opinion of the Court will be founded chiefly on the nautical evidence, and it is with great pleasure that the Court can refer to gentlemen of the experience and knowledge upon these points of Captain Armstrong and Commander Ashe, R.N. The question for their consideration is, which of the two vessels was to blame for the collision which has occurred, or whether they were both to blame on the same account. They have examined the evidencr and being present at the hearing of the cause as assessors to the Bench, th' ■> opinion upon the facts deposed to is to the following effect : — " We are of opinion that the collision took place by the Tornado not porting her helm in sufficient time, and that the Bestemor complied with the rules of the road, by keeping on a wind, close-hauled ; and by her hailing the 'I'ornado she showed that they were all on the look out. The fact cl \ ,k. Tornado squaring her after-yards imme- diately after porting her helm shows conclusively, that they allowed themselves to approach too close before taking measures to pass to leeward of the Bestemor : for no sailor will attempt to say, that by porting the helm, when a light — even half a mile off — two puints on tlie lee l)()w, could not be brought one point on the weather bjw, which is sufficient to ensure ."safety. 'MMpH 175 Tornado. 17G ToUNATin. CASES IN THE VICE-ADMIRAI.TY COURT "Tho charges brouglit against the Bcstcmor are not supported, and arc contradictory. For instance, one, that she liopt away, and ran into the Tornado, is impossible, for they must have known by so doing was certain destruc- tion for a small vessel to run under the bows of a large vessel. Agiiin, they are accused of doing the very oppo- site, viz., keeping so close a luff that she lost her way, became helpless, and fell off, thereby causing the collision. This charge is groundless ; for, if she got up into the wind her sails would fill again, and she would get ' head-way ' before she had fallen off one point. And, lastly, one of the witnesses finds fault for not doing what the others say was the cause of the collision. ' She ought to have luft'ed up and scpiared her after-yard.' But the evidence of the Bestemor all agree in saying, that the captain's orders were obeyed, viz. : ' To keep the ship close on a wind,' which they all say was done ; and, further, that slic did not lose her way by luffing up to the wind. "J. D. Armstrong. "E. D. Ashe, Commander Royal Navy" The gentlemen, with whoso assistance I am favoured, find that the sole blame is to attach to the Tornado, and none at all to the other vessel, and I am of the same opinion. The decree will, therefore, be in favour of the Bestemor with costs (ct). J. W. and W. Cook, and C. A. Pentland, for the Promoters. Allcyn and Chauveau, for the Tornado. (,() Tlio Constitution, 2 ^fooro's V. C. C. (Now Series) 453. I FOR LOWER CANADA. 177 Tuesday, 3rd September, 1872. LORNE— Martin. Whero a stoamor descending the St. Lawrence with a schooner lashed to her starboard side came into collision with a steamer at anchor, showing a grcou and white light, the persons on board tho former, supjwsing tho steamer at anchor to bo approaching : Held to be in fault for having ported her helm, and thereby caused damage to the schooner which might have been avoided if she had kept her course or starboarded. But as the steamer at anchor should not have shown a green but a white light only, as directed for steamers at anchor, no order was made as to costs. Judgment. — Hon. Henry Blade, C.B. On the 7th of November last, the steamer Lome was proceeding down the river St. Lawrence with a raft of twenty cribs of timber in tow, and shortly after passing (';ip St. Michel, on tho south shore, about sixteen miles below Montreal, a chain cable by which the raft was attached to the steamer broke, and the raft drifted on shore. The Lome was then fastened to the raft on the outside, the latter covering an intervening space of about 100 feet; her red light and her two mast-head lights were taken down, and a white light was placed above the hull, us directed for steamers at anchor ; but the green light was not removed, as required by the rules concerning lights, and no fire was kept burning on the raft. In this place the channel is 1200 feet in breadth ; and at a dis- tance of about 500 feet from the Lome, the river steamer Montreal passed her at about seven o'clock in the evening. The pilot of the Montreal states that the land opposite wliich the Lome was lying is high, that he saw her as he supposed about 100 feet from it, and that a vessel drawing twenty feet of water might have passed at any place N LoRNE. 178 LonNE. CASES IN THE VICK-ADMIRAI.TV ClOHUT between the Lome and tlie Montreal. At al)o\it oi^lit o'clock of the same evening, tlic stwiiner Mcnitt, with tlie schoonov Caiiaaionno, of the burthen of 103 tons, laslied to her starboard side, was rounding the point at Cap St. Michel. Hilairc Naud, the master of the Merritt, wlio was also the pilot, and Victor Paciuct, master and part owner of the Canadicnnc, were at the time both standing on the bridge of the Merritt. They saw, one states at a distance of a mile, and the other at a distance of a mile and a quarter, right ahead, a green and a white light. The master of the Merritt supposed that a steamer was approaching, and ordered the helm to be put a port. How many points he went to starboard he cannot say, but sufficient, as he imagined, to clear an approaching vessel. A minute or a minute and a half after this order was given to port the holm, he discovered the lights— those of the Lome, at about 300 feet distant, to be stationary. An inmiediatc order to put the helm hard a starboard was then given, and the engine reversed, but not sufficiently in time to prevent a collision. The Merritt passed free, but the port bow of the Canadicnnc was brought into collision with the port bow of the Lome ; and for the injury thus sustained the owners of the Canadicnnc have brought this suit, upon the ground that the Merritt and the Canadicnnc were deceived by the lights of the Lome, which, at the time of the collision, were those of a vessel nnder weigh. The substantial allegation in support of the claim is that about a quarter of an hour after eight o'clock in the evening, Victor Pafpiet, the master and part owner of the Canadicnnc, perceived the green, white, and red lights of the Lome, about three (piarters of a mile off; and approaching end on ; that the Merritt and her tow, the Canadicnnc, ported their helms to pass on the port side of the Lome, which had the appearance of a ship \mder steam coming up the river, and meeting the Canadicnnc end on ; that they were about L')() feet dis- FOR LOWF.n CA>fAr)A. 179 tant from tlio Lome when it was discovered that she was not mulor Avoigli, but lying at anchor with a raft on her port .side ; that there was only time snfRciont tlion for the Merritt to pass the Lome on tlie north side, but not to clear the Caimdienno, the port bow of which vessel came into collision with the port bow of the Lorno. Taking the whole of the evidence into consideration, it is quite clear that the red light of the Lorne was not and could not have boon visible from the Merritt or the Canadicnnc. It had been taken down some time before the Lorne was first seen by the people of the Merritt and the Canadienne. The masters of both vessels were on the iMidge of the Merritt ; they saw but the white and green light. The second pilot and the helmsman of the Merritt say that they saw the wliite and the green light, and to these four may be added the mate of the Canadicrino, who testifies to the same effect. Five witnesses of the pro- moters thus prove that no red light was visible, and confirm the testimony of the witnesses of the defence, on board the Lorne at the time of the collision, who state that the red light had been previou.sly removed. But one witness says that he saw a red light, in which he was evidently nn'staken, a matter of the less importance as the movements of the Merritt and Canadienne were not alfected by what this witness says he saw. The Merritt appears to have committed a very common error, that of porting her holm before it was ascertained whether it was incumbent upon her to do so or not. If the Lorne were in motion, as the masters of the Merritt and Canadienne suppo.sed, it was clearly their duty to abstain from porting until a red light of the steamer supposed to be approaching was visible to them. If a steamship sees the green and white lights only of another steamship, they are not "meeting end on or nearly end on, so as to involve risk of collision," nor are they " cross- ing so as to involve risk of collision," within the 13th N 2 LoRNR. 180 LoRNK. CASKS IN TIIR VKT.-ADMinAI.TY COmT Article of tl>c Steering ami Sailing RuIoh. They arc pass- ing clear of each other, and as these rules refer to cases in which two ships under steam arc nicetuig end on or nearly end on, so as to involve risk of collision,or in which two ships aro crossing so as to involve risk of collision, none of these rules apply to the case. The only way in which the ship seeing the green and white lights of the other can come into collision with the vessel showing the green light on tlie starboard side or ahead is by porting to it, and there is, therefore, no necessity to port on such an occasion. She is' not required to port to the green light seen on her starboard side, but she can starboard if necessary, as that will keep the two vessels further apart. If she ports to the gi-een, she must inevitably run across the path of the vessel carrying the green light. So that if, as the people of the Merritt and Canadienne surmised, the Lome had been under steam, they ought either to pursue their course, or to have starboarded, in either of which cases a collision would have been avoided. "The cause of colli- sion," as stated by a practical writer, " in ninety-nine cases out of a hundred is believed by him to be either ignorance of the regidations or neglect of them." Under the head of ignorance and neglect may be included the frequent practice of altering prematurely without having ascer- tained which way it should be altered, and also of deviating from your course when it is your duty to keep it. Another cause of collision also coming under the head of ignorance is a prevalent but quite unauthorised notion, that on all or nearly all occasions the helm should be put to port in preference to starboard to avoid a collision, whereas there is but the solitary case of vessels meeting end on or nearly end on, in which port only is the rule (a). The act of the officers of the Merritt and Canadienne, in porting their helms, when they should not have done so, was the cause of the accident, and they must suffer the („) Eiilo of the Eoud of Sea, by Captain A. F. R. De Honey, ILN. ^Ilf FOR LOWER CANAnA. 181 consoqiioncos. Had tho Lome been overj in an improper place, without liglits at all, and the officers of the Merritt and Canadicnne had it in their power to avoid her con- sistently with their own safety, they wonld have been answerable ; as the much larger steamer Mt)ntreal passed the Lome in a very broad channel without accident, the Merritt and C'anadienne could liavo done so, with an equal amount of care and caution. I therefore pronounco against the claim of tho owners of the Canadienne, but inasmuch as the Lorne sliould have exhibited a white light, and no other, while at anchor, and as this may have to a certain extent misled the other vessel, I make no order as to costs. LORNB. Larigloia, Angers, and Coldon Jor promoters. A ndrcivs, Caivn, and A udreiva, for the Lorne. 182 CAHES m THE VICK-ADMIUAI.TV fOUUT PoMiiNA. Fviday, IMh Septcniher, 1S72. POMONA— BiiucE. Wliilo a yossol floating iimidMt tho ico of tho St. Lavronco, with- out liny person on board, and without a ruddor, her miiatur and crow having loft hor, but intondiiig to return, four jiorHonH wout out to hor in canooH, and by aid of hor sailw, grouudud hor iu a pluco of wufoty. £1200 atorling alio ,vod as salvage. Judgment. — Hon. Henry Black, C.B. This is a suit brout^lit by Francjois Michaud, Jean Baptisto Michaiul, Elio Michauil, and Charles Borromde Miohaiicl, all of Kainouraska, for salvage services rciulcrcd to the Pomona, an iron vessel owned by Sir Hugh Allan and others, of tho burthen of 11!)5 tons, whereof James Bruce was master. Thin vessel left the port of Montreal towards the end of November last, and, having taken on board a pilot, sailed from Quebec on the 27th of that month. She encountered rough and tempestuous weather, with extreme cold, until the morning of the 3()th, when she lay off Crane Island at anchor. There the anchor was slipped, tho crow being unable to raise it, atid, under the pilot's directions, an unsuccessful attempt was made for the south shore, the wind being very strong from the west. After having proceeded to about two miles above L' Islet Pier, she grounded, but floated off, and some four miles to the east she grounded again. The next morning (1st December), the weather being extremely cold, and the river full of ice, all hands left and reached the shore at L'Islet in safety. There the crew were discharged and went to Quebec, the mate remaining with the master. The master, the mate, and two pilots, with eight men, sent down from Quebec by the ship's agent, followed the m FOB LOWER CANADA. vessel by land, keeping Icr in sifj;lit until about a njilo bi'low the ehurcli of St. Jean Port Joly. Tlioy boarded lier, and found the second anohor and the niddor gone, and, a Hiiow-storni coming on, left lior. She liad drifted as far as the point of St. Roch's Bank at the Travorso, and grounded about six iiiileH from tli(! nliore, where sIkj lay stationary until the !)tli J)ecember, when slie drifted down thi! river. Tho next morning, the lOth of Decendier, sho was seen passing tho Kaniouraska Islands, a distance of about twenty-eight miles further down the St. Lawrence, when tho four promoters formed a party to go out to her. Tiie vessel was at sojue distanee from the shore, and after driigging their canoe over the ice about two mih's from the main land to Grosse Isle, they had clear water, and continued on about three miles, and reached the vessel at about ten o'clock in tho forenoon. They drew the canoe • Ml board, and found no one in the vessel, all tho doors closed, sails furled, tho deck covered with snow, and the ropes stiff. The Pomona continued drifting, the wind was from the west, and rather stronger than when the promoters left the shore. Fran(;ois Michaud, one of them, assumed tho command of tlie ves.sel. There beinsr no I udder, he states that with a view to alter her course he caused tho spanker and two jibs to be unfurled and set ; and that after manasuvring the sails for two hours, the head having been brought round to the south, he succeeded iu niMuiug her ashore about a mile below Grosse Isle. This occupied them from ten in the morning until about three in the afternoon, when the Pomona grounded, the promoters remaining on boaril. In the meantime the master and his party were following tho vessel from St. Koch to Kamoura.ska, intending, if circumstances per- mitted, to return on board of her. They arrived at Kaniouraska in the evening of the 10th, and ne.\t morning went on board and found the promoters in the vessel. lie then engaged them to work at wages, and they did so until the 17th. 183 MiHIfi foXOlfA. 184 CASES IN THE VICE-ADMIRALTY COURT roMONA. Tho promoters now claim salvage for services rendered ' ^ ' between the morning of the 10th December and the 11th. They assert that from ten o'clock in the morning until about four in the afternoon they were constantly occupied in manceuvring the ship. That having lost her rudder, they had recourse to the sails, by the setting of which and the shifting of them they ran her into a place of safety inside one of the Kamouraska Islands, that this object was attained principally through the skill and knowledge of the coast, shown by Fran9ois Michaud, one of the promoters, who by common assent had assumed the command of the vessel ; and that if it had not been for the knowledge of the locality which Michaud possessed, and his skill in guiding the vessel, she could not have been placed where she was in safety. This the owners of the ship and cargo deny, and allege that the promoters in no degree whatever contributed to her preservation. That there was no wind or not suffi- cient to fill the sails in the forenoon of the 10th December; and that having no rudder, she drifted with the ebb tide below Grosse Isle, and falling in with the flood and ice coming up she took the ground. That the promoters are not sailors accustomed to navigate vessels of the class of the Pomona, and that even a competent crew, in the state of the vessel, the river, and the wind, could not have directed her course, which was controlled entirely by the currents and the ice until she grounded. But one question of fact presents itself, upon which evidence somewhat voluminous has been adduced. Did the exertions of the promoters on the 10th of December aid in bringing the vessel into a place of safety ? Now, it is established that sails were set by the promoters, these sails were the spanker, two jibs, and the fore-top- mast staysail, or some of them. Although the testimony varies as to which of them were set, it is certain that some were while tho vessel was in motion, on the morning FOR LOWER CANADA. of the 10th. Whether the sails so set and shifteti from time to time iiiHuenceil the course of the vessel, we have, on the one hand, the master and others with him, who state as their opinion that the strength of tlie wind as it prevailed at the time was not sufficient to do so ; and that it was by the tide, current, and ice alone that she was forced to the south and took the ground. On the other hand the promoters who were on board the vessel swear that her bow was by means of the sails changed from the cast to the south-west, and contributed to brincr her where slie grounded. In addition to their testimony several of the witnesses who saw the sails set speak as to the effect of them immediately upon being set, and this was to change the course of the vessel. One of the witnesses of the defendants. Captain Urquhart, speaking of the pro- bable effect of the spankers and jibs, if set while the ship's head was to the east, with the wind a little to tho south of west, says the effect, if any, would be bring the head round to the south. The efforts of the promoters unaided by the tide and current would most probably have been ineffectual, providentially their exertions were favoured by the tide and current. If they contributed in any degree to the safety of the vessel, no matter how slightly, they are entitled to compensation. An American jurist, whose judgments are entitled to very great weight, as well from his patience of research as from his sound discriminating learning, after stating that a claim for salvage nuist depend on actual services, a mere attempt not being sufficient, says :— " If Providence kindly aids their exertions, by which the object is attained, so much the better for them, nor would that circumstance deprive tliem of merit, although it might diminish the rate of com- pensation; but exertions must be made, and the probability that they contribute or might contribute to save the l)r()perty should appear by some proof, although, from circumstances, slight proof only could be expected. I will 185 Pomona. m 186 CASES IN THE VICE-ADMIRALTY COURT Pomona. not Say that where the damage is proved, and the vessel is conducted by the asserted salvers into a place of safety, every presumption, in the necessary absence of othur evidence, may not be made in their favour." — {Mr. Justice Washington) In the present case the promoters have more than pre- sumptive evidence in their favour, and the general interests of navigation and connncrce of the country demand that exertions of tins nature shoiild be liberally remunerated. The value of the ves. ■ ' ind cargo is considerable, and the sum of £'200 sterling is not more than a fair allowance. I do not think that the claim for salvage is affected by some of the promoters having signed receipts with their marks for eight days' service on board the ship. In giving those receipts it is quite plain that they had no intention of abandoning their claims for salvage (a). The decree will be for £200 sterling and costs. Andrews, Caron, and Andrews, for salvors. J. Cook and J. W, Cook, for owners of ship and cargo. (»() Tho Silver Bullion, 2 and cases cited iu 2 Pritch. Spiuks, Eccl. and Ad. B. 70 ; Dig. p. 831. i . FOn LOWER CANADA. 187 Tuesday, 8th October, 1872. ABERGELDIE— Bruce. A certificate was given by the master of a sailing vessel which, while in charge of a pilot, had, by collision with a vessel at anchor, caused damage, in which certificate it was stated that the pilot had piloted his vessel to his entire satisfaction : IIcM, in a case of doubt, as to whether the master or pilot was to blame for the collision, that the certificate was a subsequent ratification of what waa done so as to render the owners of the sailing vessel liable for the damage. Judgment.— //o?i, Henry Black, C.B. This is a suit brouglit agcainst the barque AbergeWie, of ABEROELurB. the burthen of 628 tons, by the owners of the scliooner "^ ' ' Louisiana, of 92 tons burthen, for damages arising from a collision which took place at about 10 o'clock in the fore- noon of the 16th of May last, opposite St. Thomas, in the river St. Lawrence, about 40 miles below Quebec. The weather was fine and clear. The Louisiana was at anchor, and the Abergeldic was sailing up the river with a flood tide, and a light, if any, breeze from the east. Two ques- tions are raised by the defendants: 1st, to whom the blame attaches ; and, 2ndly, whether by law the owners arc exonerated from the damages. Upon the first point the evidence leaves no doubt that the Abergeldie was the sole cause of the collision, occasioned by the want of proper care of the persons on board. A vessel in motion is bound, if possible, to steer clear of and avoid a vessel at anchor, which could and ought to liave been done on the occasion in question. It is urged, however, that the de- fendants are not liable, because the vessel was in charge of a licensed pilot. Now, a shipowner, except so far as his liability is limited by the statute, is responsible for 188 CASES IN THE VICE-ADMinAI,TY COURT A.nF.noF.i,mE . jmy damage occasioned by necfligence in the navigation of liis vcssi 1. Where pilotage is compulsory, as it was in this case, it is not sufficient merely to show that there was a pilot on board at the time of the accident, but the burthen of proof lies upon the ship to establish this further fact, that the damage was occasioned exclusively by the pilot's fault. The pilot in hie evidence attempts to throw the blame upon the master, who on the other hand de- clared that the damage was occasioned by the fault of the pilot alone. Taking the whole of the oral testimony together, it might admit of a doubt whether the statement of the one or the other was correct ; but the difficulty is removed by a certificate given by the master himself, addressed to the secretary of the Corporation of Pilots at Quebec, on the I7th of May, in which he states that the pilot took charge of the Abergeldic on the loth, at Father Point, and piloted her to Quebec to his " entire satisfac- tion." I entertain no doubt of the power of the master to give this certificate ; and as, with a full knowledge of all the circumstances, he has thus deliberately approved of what was done by the pilot, he is bound thereby as fully as if he had hiniself directed the same. Every con- sent given to what has been already done has a retro- spective effect, and is equivalent to a previous order: Omnis ratihahitio retro-trah'itiir et mandato priori cequiparatur. With such a certificate the Court could not properly pronounce an opinion in direct opposition to that of the master himsci/, and, by attributing fault to the pilot alone, relieve the owners from their liability for the loss or damage occasioned by their vessel. The decree must therefore be for the damage proceeded for, and costs to be established in the usual manner (a). Alleyn and CJiauveait for owners of Louisiana. J. W. and W. Cook for Abergeldie. (-() The Diana, 4 Moore's V. Schwalbo, 11 Mooro'a F. 0. C. Cases, 11 ; The Christiana, 7 Cases, 241. Moore's P. C. Cases, 160; The FOB LOWER CANADA. Tuesdfiy, 22nd October, 1872. PRIDE OF ENGLAND— Bean. "Where tho master and crew of a vessel were taken off by salvors in canoes, tho former abandoning her, fearing a total wreck, and tho vessel was afterwards saved by tho meritorious exertions of tho latter, a moiety of not value of ship and cargo was allowed as salvage. Judgment. — lion. Henry Black, C.B. This is a cause of salvage promoted by Vincent Trem- blay, David Ldvesque, Frc'ddric Cotd, Joseph Tremblay, and Eugene Cotd, all of the parish of Isle Verte, mariners, against the ship Pride of Enghmd, and her cargo. Upon the general facts of the case there is no material contra- diction or dispute. The vessel proceeded against sailed from the port of Quebec on the 23rd of November last, Avith a cargo of timber and other lumber, bound to the port of Greenock. She encountered very tempestuous weather, and extreme cold, and, on the 1 st of December, being beset in a floe of ice in the neighbourhood of Riviere du Loup, became completely unmanageable. The rudder was unserviceable ; she was very much cut about the bows and other places ; she was making water fast, and the pumps were so frozen that it was impossible to thaw them. On the 2nd of December the weather was the same, and the position of the vessel unaltered, the ice extending on all sides as far as the eye could reach, and, as stated by the master, from shore to shore. The vessel was driv- ing on to Cacouna reef, and the master and officers, after consulting the pilot, came to the conclusion that, as nothing could be done to save the ship, they should abandon her, and .save their lives. At about 4 o'clock in the aftor- 189 PltlDR OP EniII.ANI). 190 CASKS IN TlIK VICK-ADMITIAI-TY COURT Ptiiiii; lip Knui.ani). noon tlircc canoos camo off from tlio slioro, ahoiit five miles ilistant, and took away part of the sliip's company, tlio master takin"- tlie clironoiiicter in his hand. Tlic pilot took charge of a box containing the ship's register, oflicial log-book, the master's sextant, and all the vouchers and other ship's papers, but iti getting into tiio canoe ho had fallen through the ice, and had to K't go the box to save his life. A very small portion of the effects were saved, and the men were badly frost-bitten. They arrived at the shore at 8 o'clock at night, David Levestjue, one of the ])romoters, having assisted them to reach the land. The master then requested him to go back to save five of the crew left on board, stating that he himself would not sleep on board another night for the value of the vessel. The promoters at mi78 per mouth. Mr. Holiday states that it was a part of this agreement, although not itiserteM I.OWrn CANADA. 198 l...t before its cxpimtion, on tho 12th of October, tl.o Mabo.rktha respondent dismissed the promoter witliout assigning any cause, and this suit has been brought for the $5o(), the wages stipulated, and the bonus of $50, forming the sum of $600 less .^854.40, which had been paid in various sums, at difterent periods, as required by the promoter. TIh; balance claimed is ^'245.()0. The defence is, that tlie agreement for tho season was $.')()(), that tho promoter wa.s entitled to wages until tho 12th of Ootol)er, the day of his discharge ordy, which reduces his claim by $117.!)0, and that he had not given credit for other sums paid him as wages including two sums, one of $10, and another of $7, which, if credited, would have brought the promoter into the respondent's i- navigation, that the promoter did not agree to an arbitrary power of dismissal in the respondent, it being admitted by the agent of the latter that it formed no l)ortion of the contract as reduced to writing, and the promoter states on oath that he never engaged, and would not have engaged upon such terms, that the promoter was paid at broken periods and in unequal amounts as he desired, the other small sums referred to are not proved to have been received by the promoter as wages. «o that the claim, as it stands before the Court, is $550, o Stevenson. il 194 CABEB IN THE VICF-AnMinAI.TY COURT MABOAnKTHi less the Bum of $354.40 paid on account, leaving a STKV E N30N. ijalnncc duo as wages of $195.G(). Tho matter of a honaa is one separate and distinct from tlie wages. The respondent aflirms that it was optional with him to allow it or not, and tiiis the promoter has denied. This Court is disposed to believe the state- ment of tho former in this particular, as the promoter gave a discharge to the respondent at the close of the year 1871, for that year, when it does not appear that tho bonus was allowed. But whether it were to be paid absolutely or not is quite immaterial in this case, because not being a contract for wages this Court has no power to deal with it. The claim of tho promoter thus stands limited to $195.60, and the question now arises— has this Court jurisdiction, by virtue of the 191st section of tho Merchant Shipping Act, which, adopting the 189th section, applies it to the wages of the master ? The latter provides " that " no suit for the recovery of wages under the sum of £oO •• shall be instituted by or on behalf of any seaman or " apprentice in any Court of Admiralty or Vice-Admiralty, " or in the Court of Session in Scotland or in any Superior " Court of Record in Her Majesty's dominions, unless the " owner of the ship is adjudged bankrupt or declared " insolvent, or unless the ship is under arrest, or is sold by " the authority of any such court as aforesaid, or unless " any justices acting under the authority of this act, refer " the case to be adjudged by such Court, nor unless " neither the owner nor master is or resides within twenty " miles of the place where the seaman or apprentice is " discharged or put on shore." The amount of wages which the promoter is entitled to being $195.60, and short of £50 sterling : according to the clause now cited this Court has no jurisdiction over the Kubiect-matter in dispute ; but it is said that it can pro- ceed to judgment, because the jurisdiction has not been rort r.owF.n Canada. lOS excepted to. ITnwcvor much disposed the Court may be mahoa- -.tha to acquiesce in this v' ,w, considering that tlio promoter is ,S"yii.su>. justly entitled to the M.m of .SlD-xOO, it is quite impossihla ' ' to do so. The langua-,'0 of Lord Kenyon iu the case of I^aurcnce v. Crickett (a), is the rule always acted on iu the Knirlish Courts. "If the proceedings in the Court of Admiralty bo erroneous, they are to be rectified in appeal, I'lit if they have no jurisiliction over the subject-matter, the whole is coram non judice—" and again, in the case of Monetono v. Gibbons {b), it was held, "that the sentence being a nullity, is at any time impugnable." The de- cisions in the Courts of the United States are uniform, and establish that where thu subject of the suit is with- out the jurisdiction of the Court, consent of parties cannot confer jurisdiction, and much loss can it be conferred by mispleading. By the maritime law a master could not sue in tlie Vice-Admiralty at all for wages before the enactment now referred to, and the present claim, being under £50 sterling, stands just as it would have stood, iT brought before it was parsed, when this Court must have ex officio noticed the absence of jurisdiction. A case which turned upon the same enactment, very analogous to the pre.scnt, was decided in the High Court of Admiralty by Dr. Lushington in 1861. In the case of the Harriet it was held — "That the Court of Admiralty has no jurisdiction over a contract for wages different from the ordinary mariner's contract, and that the 189th section of the Merchant Shipping Act, 1854, bars a seaman from recover- ing wages less than £50 in the Court of Admiralty, except in the contingencies therein specified. " The plaintiff signed the ship's articles as mate, at £5 10s. per month ; he also verbally agreed with the owner to act as purser, and superintend the ship's accounts () 2 T. R. GSJi. (h) 3 T. R. 269. 2 100 CASES IN TIIR VICK-APMntAI.TY COITRT MAiui«ncTnA (nr '■If por lotiih mUlitional. He somMl iiftorwanls in 11 , . [Micitics, atKi rtiially claimed £0;). Hd.l tliat tho parol agiH, ^«nt was in tli circumstaiiccs, a Hpocial agree- ment, which the Court could n(»t enforce, and tho claim, thus hilling btlow £50, was dismisseii altogothor." As in the case •♦" tho Harriet, tho pre.sont suit was hronght for a sum exn "ding £r>0 sterling, but owing to tl»« disallowing of a claim of $5>*y the sum dcmandotl is brougli- down to $li)5.G(), for which I may express my regrr* liu.t I cannot pronounce judgment as Dr. Lushing- ton did in the case of the Harriet, when ho said, "I regret that this decision not only deprives tho plaintiff of wages which he has justly earned as purser, but must also bar him from recovering in this Court the wages ho has earned as mate. His claim reduced to a claim for mate's wages only, does not amount to the minimum of £50, which the statute requires for a proceeding for seaman's wages in a Superior Court, except in certain contingencies, which are not applicable to this case. It is true that the words are— "No suit or proceeding for the recovery of wages under the sum of £50 shall bo instituted, and that here a claim, and a bond fide claim, has been made for a sum exceeding ,^50 ; but I must interpret the statute to require a recovery of £50. I dismiss this case, but I do not give costs " (c). In the case of the Harriet, as in the present case, there ■ does not appear to have been any act or protest or plea to the jurisdiction. This Court has no other alternative than to adopt the conclusion arrived at in the former case, that is to dismiss this case but without costs. The case of the Blakeney {d) was cited at the argument as to the necessity of a plea to the jurisdiction, but tliis case had a more immediate reference to one of the ex- (r) T.nshin.L'tou's A. E. 28o. (''''"<" case. R. J. BtuiUptj, for promoter. Holt, Irvine, and Pembcrlon, for rcs|. ndent. 198 CASES IN THE VICE-AUMIUALTy COUUT Friday, 28th November, 1873. GORDON -CuosBY. Tlio owners of a vessel which came into collision with another, while at anchor, made liable for damages where the cause was not, exclusively, the act of the pilot. The Court.— (?. OkiU Stnart, Q.G., Deputy Judge and Surrogate. GonDOH. On the 16th of August last the Norwegian barque Eros, ' of 4G6 tons, was anchored otf the west end of Goose Island, the wind strong from the south-west, or west south-west. She lay to the ebb tide in eleven fathoms of water, with port anchor and forty-five fathoms of chain. The channel whore she was anchored was, in breadth, from a mile to a mile and a quarter, and there was abundance of room, on either side, for vessels to pass. Her sails were furled, the anchor watch set, and a look-out stationed forward, Ik'tween two and three o'clock in the afternoon a vessel, afterwards ascertained to be the Gordon, of (304 tons, was seen coming down the river, with a fair wind and ebb tide, making six or seven knots an hour. All her square sails were set, except the mainsail. The weather was bright and clear, and vessels w^-e visible at a distance of four miles. The Gordon came into collision with the Eros, and thereby her jib-boom, bowsprit, martingale, foretop mast, forotop-gallant mast, royal mast, the maintop-gallant mast, and main royal mast were carried away ; the port cathead was bruised and strained, the outrigger broken, and three planks on the port bow and the wooden sheathing and nietal below them damaged ; the end of the maintopsail yard and both the trucks of the top- gallantmast heads were broken off, one of them was lost. ".' i, 'iixH^Miiu^'* FOR LOWER CANADA. several of the lanyards were broken, and other damage done to the Eros. At the time of this collision the master of the Gordon was in the cabin, which was on deck, and the pilot was in the cabin also, where he had gone but a few minutes before. The master heard the chief mate sing out " Hard-a-port, a ship right ahead." He then ran on deck and saw the Eros at anchor a little on the port bow of the Gordon, not more than a cable's length otf. The master of the Gordon, who has been examined as a witness, states that " there was no one in particular on the look out ; that the order 'hard-a-port' given by the chief mate, while he was in the cabin, was the proper order to give under the circumstances ; that an order to starboard instead of to port would have made it a bad job; that if the helm had been kept steady, as the pilot ordered when he last heard him speak before the collision, and if the chief mate had not given the order ' hard-a- purt,' the Gordon would have struck the Eros ' stem on ' about her port cathead ; that when the vessels fouled, he thought he heard some one on board the Gordon sinsr out ' starboard ;' that he was at the wheel, and seeing that it was necessary to starboard, to ease the blow, he riglitod tlie wheel from hard-a-port and put it a little to starboard, at which he left it. The effect of this starboardintr was. he says, to slew his ship round and to prevent damage as much as possible. * * He attributes the collision to the pilot not keeping a vigilant watch as to where he directed the ship" The chief mate of the Gordon states, the last order he heard the pilot give to the man at the helm was "steady, keep her as she goes;" this was between two and three o'clock in the afternoon. The order was obeyed, and about five minutes afterwards the steward, reported a vessel ahead. We were under sail at the time, going before the wind with the tide in our favour, at the rate of about five knots an hour through the water. He saw vessels ahead before the steward reported this one, but did 199 (JoRDON. M i 200 CASES IN THE VICE-ADMIIlAT/rY COUUT Otuu) N. nut pay particular attention to them. Wlicn the steward reported the vessel ahead, he looked and saw a ban^ue, Avliicli afterwards proved to be the Eros, not a quarter of a mile off and almost ahead, a little on the port bow. He reported, as he thought to the pilot, " vessel ahead," believing him to be on the house where he had seen him but a few minutes previously. Not receiving any answer he turned round and saw that the pilot was not there, he thuu ordered the man at the wheel, to put the helm hard- a-port, which was done immediately. The Gordon was only two cables' length from the Eros when he gave this order. The Gordon payed iff to southward, but not enough to clear the Eros, and two or three minutes after he gave tlie order to port, the vessels came into collision. There was no body, he adds, specially on the look-out, and the steward's duty is to attend to the cooking and pro- visions principally. The boatswain of the Gordon states that he " did not see the other vessel before the steward reported her, and that he looked when he reported, and she was then a cable's length and a half, or two cables' length, from the Gurdon, a very little on the port bow, very nearly ahead. It was uoi more than a minute and a half or two minutes after, that the vessels came into collision. * * It was hard to tell whose watch it was, there was no watch set. Wo were all securing the deck-load ready for sea. There was no one on the look-ont that I know of, it was not the pilot's orders that there should be anyone." The steward, who was the first to report the ship ahead, had gone forward, accidentally, and it is very probable that, if he had not done so, the Gordon would have struck the Eros stem on, and sunk her. The man at the helm, from where he was, could not see an obj(!ct ahead. It has been proved by the respondents that objects ahead coidd be seen just as well from the top of the house aft as from the forward part of the ship, and that the look-out is, generally, posted FOK LOWER CANADA. 102 lift in (lay time aiul forward at niglit. The pilot, exaiiiiiicd for the rospoudeuts, says, that when ho left the deck the mate was close to the house on deck and must have seen him going into the cabin, that there was no look-out, that he had not ordered one, and if there had been one, had ho reported the Eros a minute sooner, there would have been no collision ; that he thought the people forward working were keeping a good look-out without orders from him, and that if there had been a good look-out forward there would have been no collision. In this suit the owners of the Eros claim compensation upon the ground that the Gordon was improperly navi- gated, that her people were guilty of negligence, and that it was by their carelessness and default that the collision was occasioned. The answer of the owners of the Gordon IS, that she was in charge of a branch pilot to whose negligence the loss and damage sustained is to be imputed, and that they are consequently exempt from liability. A difficulty in most cases of collision, conflicting testi- mony, has not been met with on this occasion. The Eros has not been charged with having committed any fault, nor was she guilty of any, and the question is, whether the injury sustained was owing to the negligence of the pdot alone. To determine this question, the evidence adduced on behalf of the owners of the Gordon will suffice. Her crew appear to have been attending more to securing the deck -load than to the navigating the vessel. No watch was set and there was no look-out. The pilot had left his post, in the presence of the mate, who was in a position on the house to see objects ahead ; and, accord- ing to his own testimony, he had seen vessels ahead but had paid no particular attention to them. It may be a question as to which of the parties, the master and crew of the Gordon, or her pilot, were most guilty of negligence, but that the two together were extremely careless there can be no doubt. The damage to the Eros is not at- GoBHON. iiii 202 rOoRDON. CASES IN THE VICE-ADMIRALTY COURT tributable to the pilot alone, but, perhaps, more to the master and crew of the Gordon than to him. It has been decided in this Court that, where a pilot is on board the ship, he must be actually on deck, and in charge, to relieve the owners of their responsibility (a), and, also that the duty of the pilot is to attend to the navigation of the ship, and the master and crew to keep a good look-out {b). The owners of a ship are compelled by law to have a pilot on board, and, as a consequence, when the fault is his exclusively, they have the benefit of exemption from liability ; but, when they participate in it, they are deprived of such relief. I must, therefore, as the pilot was not on deck, and as there was no look-out, pronounce airaiusL the owners of the Gordon for the damage done to the Eros by the collision, with costs. Blanchet and Pentland and W. Cook, for promoters. Foamier, Q.C., and llearn, for the respondents. ((t) Tho Courier, supra, 91. (/)) The Secret, ib. 133 ; Tho Oriental, ib. 144. FOR LOWER CANADA. 203 Friday, 2Gth June, 1874. LATONA— Lewis. Whoro there was a deviation in the voyage from that stated in the Shipping Articles, occasioned by a return to the port of (iuobec noi; specified in them, the engagement of a seaman was terminated as there was then no subsisting contract, and a plea to the jurisdiction, alleging a subsisting voyage, under the l-lOth section of " The Merchant Shipping Act, 1854," which enacts that " no seaman who is engaged for a voyage, or engagement to ter- minate in the United Ki gdom, is entitled to sue in any Court abroad for wages," overruled. QiKire. — How far can an engagement of a seaman, void from not stating the nature of the voyage as required by ' ' The Mer- chant Shipping Act, 1854," bo considered as operative under a subsequent Act (" Merchant Shipping Act, 1873") which adraits, instead, a statement of the viaxiiiiiun period of the voyage and the ports and places (if any) to which it is not to extend. This suit was for wages brought by James Williams a seaman before the Judge of Sessions at Quebec and re- ferred by him to this Court for decision as allowed by the " Merchant Shipping Act 1854." Latona. m Judgment.— -//oji. G. Ohill Stuart. The promoter sues for his wages as a seaman from the 19th of October 1873 to the 10th of June, 1874. The owners, the respondents, have appeared and have excepted to the jurisdiction, setting forth, as ihey allege, a subsist- ing contract in ship's articles to terminate in the United Kingdom, and pray that the promoter's demand may be dismissed as, by the Merchant Shipping Act 1854, " No seaman who is engaged for a voyage or engagement which is to terminate in the United Kingdom, is entitled to sue 20i CASES IN THE VICE-ADMIRALTY COURT Latona. i" finy C'ourt abroad for wages." In tlielr Act on protest '~~^ the rospoudeiits state the engagement of the jn'omoters to be contained in sliip's articles signed by him on the 18th of October, 1873, at Quebec, for a voyage which had been pre- viously commenced, " Fwm Liverpool to Montreal, thence to and from and from and to, any ports and places in the Atlantic, Pacific and Indian oceans, the China, Eastern, Mediterranean, North Baltic and ^Yhite Seas and Con- tinent of Europe, calling for orders, if required, and back to a final Fort of Discharge in the United King- dom, term not to exceed three years." It is admitted that the vessel, after the articles were signed at Quebec, pro- ceeded to Buenos Ayres, thence to Barbadoes and back to Quebec, where she now is. The questions submitted to the Court are, — 1st. Is the engagement of the promoter void under the 149th section of the " Merchant Shipping Act of 1854," which requires the nature of the voyage to be stated ; and if not, 2ndly, was there a deviation from the voyage which has relieved the promoter from his engagement. Either of these ques- tions being determined in the affirmative no engagement for a voyage to terminate in the United Kingdom existj, and this Court has jurisdiction to allow the promoter his wages. Cases, as well in the High Court of Admiralty as in this, have occurred wherein agreements with seamen less indefinite than the present have been declared void under the provision of the Merchant Shipping Act, which provides that such an agreement shall, among other par- ticulars, contain the nature of the voyage, which the courts have held was one inteided to protect the mariner and give him a fair intimation of the nature of the service in which he might engage himself. The engagement of the promoter has a wider range and the nature of the voyage is more indefinite than in the case of the Marathon, wherein the engagement of a seamen was declared null (a), (a) Supra, 9. m FOR LOWEU CANADA. 205 ami thore wonltl liavc been no hesitation to pronounce a similar judgment, on tlio same ground, in this case, were it not for a recent statute of the Tmpcriai Parliament, "An Act to amend the Merchant Shipping Acts," whereby tlio rigour attached to a statement of tlic nature of the voyage is materially relaxed. In many cases it is very (liflicult to state its precise nature, alterations and devia- tions are required after the sailing of a vessel, and the consequences of these have rendered the engagements of seamen void, a result injurious to the shipowner, while these changes may have been indiiTerent to the seaman until the temptation of higher wages to be had, as at the port of Quebec, where the crimping system has so much prevailed, induces the seaman to demand his release from his articles and to claim his wages. By this recent Act it is provided in the 7th section, that " any agreement with a seaman, made under section 149 of the Merchant Ship- ping Act, 1854, may, instead of stating the nature and duration of the intended voyage or engagement, as by that section required, state the maximum period of the voyage or engagement and the " places or parts of the world, if any, to Avhich the voyage or engagement is not to extend." Although this enactment does not repeal the 149th sec- tion, in so fVir that a contract stating the nature of the voyage must always be carried into effect, it makes a very material and beneficial change for both the shipowner and the seaman. Limitation as to the period of a voyage seems to be now more of the essence of the contract than its nature. The maximum period must be stated, but, its nature, no further than a statement of the places or parts of the world, if any, to which the voyage is not to extend. The voyage expressed in the articles in this case is of the most comprehensive nature, and whether a state- ment of the places where the vessel is to go is not an nidication of where she is not to go, upon the principle Latona. CASKS IN TIIK VICK-APMTRALTY COURT tliat tlic mention of the one excludes the other, incluaio unius exclubio aUerius, and tliat, in the spirit, if not the letter, the recent Act has been complied with, might have been a question f(^r the Court now to decide, were it not that, conceding the validity of the engagement, the second objection to it, that of a deviation, is conclusive, the de- parture from the intended voyage being somewhat anal- ogous to the one in the case of the Varuna Q)). The ex- press stipulation in the engagement is that after leaving Quebec the Latoiia shoulil go to and from, and from and to, any ports and places in the Atlantic and other oceans and seas, and back to a final port of discharge in the United Kingdom. A return to the port of Quebec loes not seem to have been contemplated either by the master or the seaman. If the engagement is valid, under the one statute or the other, a deviation has relieved the mariner from his contract. The evils of a crimping sys- tem have been referred to by counsel as prevailing at this port, and, no doubt, some of these have arisen from the difficulty of stating the exact nature of an intended voyage, the absence of which has in many instances led to the release of a .ship's crew. By the recent Act a rigo- rous interpretation of the 149th section of the Merchan. Shipping Act, 1854, may be avoided by a simple state- ment " of the maximum period of the voyage or engage- ment, and the places or parts of the world (if any) to which the voyage or engagement is not to extend." A compliance with these requirements is easy. The Legis- lature has, after a long trial of the 149th section of the Merchant Shipping Act, come to the relief of the ship- owner by removing a difficulty which has occasioned de- fective articles, and one of the causes which has led to the abduction of seamen. In the present case the agreement R, 3J7. FOn LOWER CANADA. 207 oxcludcs tho port of Quebec as a port of return after hav- ing been once there, and the duty is imposed upon me to overrule tlic act on protest. Tho contract has terminated and the promoter is entitled to his wages. Latona. Alleyn and Ckauveau, for the promoter. Fournier, lldim, and La Rue, for the respondents. 208 CASKS IN TUK vi( r.-AimruAi/rY cotmT Harold Haakkaokii. Friday, Sl.s< Juhj, 187t. HAROLD {rAAHKAGKIl— IlKr.MKSEN. Whcro, l)y moving "*' "i" irc-briil^'O in tlio harbour (if (iuclioc, a BtciiiiKa' wan brouglit uiidor tliu bow of a .sailing VOhsoI, lior walk- ing beam broken, and hor machinery injured : // notice a by-law of iho Trinity House at (inobuc, but will roiiuiro legal evidouco of its contouta and publication. Tliis was a suit of Mr. John Ross against the owners of the ship Harold Haarfugcr for running foul of ami colliiling with his steamer Providence, whereby she was damaged to the amount of several huiulred dollars. At the time of the collision these two vessels were at their winter berths, inside of Dinning's booms, on the north shore of the St. Lawrence, at the city of Quebec, and there they were brought into contact by the irresistible force of a field of ice, and injured. The alleged Cduse of damage was the neglect of a Port Regulation and im- proper mooring of the ship. Plea, inevitable accident tiie result of a vis major. Judgment. — Hon. 0. Ohill Stuart. The Harold Haarfagcr, a Norwegian ship of 1019 tons, was compelled by the setting in of winter, in November last, to remain in Dinning's booms until between two and four o'clock in the afternoon of the 8th of May, where she was then lying, near the Providence, and frozen in with ..or. Each of them then had their heads westward up the river. Tiie bow of the Harold Haarfagcr rather over- FOU LOWEB CANADA. lappod the stern of tlio stoamor. which was inside towanls tl.u slioro on the riglit aide of the ship, at n distance of ahoiit ten feet. Four ciiaiiis and throe hawsijrs, from bow and stern, seenred tiie lljuuld llaarfanu,- 1„ tjiu wliarf and lioDMis, one hawser passing over tho stern of tiie Providence without however touching her. J[er yards were topped up, lier jib-boom was partly rigged in idit extended from twelve to twenty feet i)oyon(l the cap of the bowsinit. and ♦ lie crew, consisting of nineteen men, were on board. The ice-bridge then began to move, and brought tiie Harold llaarfager and the Providence into collision, the cast metal walking-beam o*" the steamer and .some of her machinery was broken, while the bowsprit of the ship was split and six of her stanchions, with a portion of her rail, l)ulwarks, and some planking broken on the starboard' • piarter. Her jib-booin remained loose in the cap of the bosvsprit, and had a chip or almisure inside the ship, but was not broken. The bowsprit was rendered useless and was replaced. The jib-boom continues in u.so. The i^ro- niotor complains that this jib-boom had been extended during the winter, in contravention of a bycslaw of the . Trinity House, at Quebec, which provides, "that vessels Nliall, within forty-eight hours after their arrival in the port of Quebec, have their jib-boom and flying-jibboom figged in, so as not to exceeil the length of three feet out- Mdo the cap of the bowsprit, and the same shall be kept ' so rigged in until they may be about to sail, and no vessel shall be allowed to have her jib-boom or flying-jibboom run out within the harbour of Quebec until aftershe shall b(! loaded and at anchor in the stream ; " and, further, that while so extended the Harold Haarfagorwas struck by the ice and thereby forced from her position, which brought the jib-boom across the Providence, striking her walking- beam, breaking it, and damaging other parts of her machinnry. It is said also th.at tlie berth of the ship was a foul one owing to a difficulty of exit, except at hi<.h 209 Harold IlAinrADiH. 210 !1 Alio 1,1) IIaarvaiikr. CASES IN THE VICE-ADMIIIAI.TY COtTUT tidop, andtli.'it the liawHornvor the stern of tl»o Piovuluncc shouhl not havo boon placed there. Tlie first of these two hist objections in no way alVects the promoter, and the second is of no weight, as the hawser in no way interfered witli the Providence. Although an extension of a jih- boom is necessary in the navigation of a vessel, it is easily understood that in u crowded port like Quebec, in a busy season, its renuiining e.xtentled would lend to collision, and if it is made to appear that a bye-law, as stated, has been passed, atid that the tlamage was caused by the jib- boom, the owners of the Harold Ilaiirfager are liable, because it would be an omission on their part which con- tributed to the collision (a). By the Trinity House Act of 18-t9, every bye-law, before taking eft'ect, "must be inserted during two weeks in English in a Quebec newsi)aper published in English, and in French in a Quebec newspaper published in French, and such bye-laws shall hen printed in a pamphlet form, and any person shall be entitled to a copy on paying its fair value, and a copy of any bye-law of the Trinity House of Quebec, certified by the clerk, under the seal of the cor]. Mvation, shall be deemed authentic and shall avail accordingly in all courts of justice in this province." No bye-law, or copy of any bye-law, which prohibits the run- ning out of a jib-boom has been proved, but a printed notice said to be of extracts from the bye-laws of the Trinity House, containing such a prohibition, has been placed upon the record. Tliese extracts are not proved to be true extracts, nor is there any evidence to show that such a bye-law has been published, which is essential to its being binding on the respondents. The Harbour Master, v.ho has been examined as a witness, states that such printed notices are given to most of the shipmasters {„) Tho Despatch, 3 L. T. (N.S.) 220 ; L. C. Ad. R. 75, Tho L'uniborlaiid. I'On I.OWKn CANADA. i'.nmmtr to this port, htit, tin. -videnco is not Huffioient, and, particulfirly in tli(> prosont cnso, as TlaiLoiir Master liastostifie.l tlmt the master of the- Harold llaar- fager has Ikjum, hy hh .liri'.;ti..i», prosecuted fur liis \w^\oct ii' i'"t rigging ill his jil)-l,(.om, a„d that the prosecution lias failed, but from what eati'y persons belonging to the Harold Haarfager ; perhaps the testimony of the latter may be the l)ost entitled to credit, l;ut a perusal of the testimony of two persons belonging to neither vessel will set the (juestion at rest. The one, John Webb, witnessed the collision from the wharf, at a distance of thirty feet ; and the other, Ignace Fortier, from his bateau, seventy feet distant. In addition to their testimony there are the material facts, not to bo controverted, that tlie bowsprit was broken about a foot inside the ship, and that the jib-boom was not and remained loose in the cap of the bowsprit. J(dm Webb says, " that he was watching the vessels at the moment. The Harold Haarfager started first an.d ran astern about 211 Harold IlAAHrAilltH. m ten or twelve feet, until her 1 lawsers brought her up. The p 2 . } 212 Harold Haarpaoeh. '< 'iinl CASES IN THE VICE-APMIRALTY COURT next thing I saw was the Providence breaking her mooring and coming athwart the Harold Haarfager— that is, broad- side on— to the ship's bow. The parts of the vessels which first came into contact were tliu steamboat's wallving- beam with the cap of the ship's bowsprit. I did not see the ship's jib-boom touch the walking-beam at all ; had it done so I must have seen it. Wlicn the walking-beam struck the cap of the bowsprit, as the ice continued to shove, the force of it caused the steamboat to cant and the walking-beam got under the bowsprit. The walking-beam was broken by the collision. The minute after the beam struck the cap the boat canted, and as the beam got under the bowsprit I saw that it was broke in two. . . The jib- boom of the Harold Haarfager did not contribute to the accident in any way ; it was higher than the walking-beam, and I am positive did not come in contact with it. I believe the jib-boom would certainly have broken had it struck the walking-beam." Ignace Fortier states, " that as the steamer came down upon the Harold Haarfager, lier walking-beam— that is, the after part of it— got under the cap of the ship's bowsprit and broke. . . The jib-boom did not touch the walking- beam nor any part of the steamboat's machinery. . . I am quite positive that the walking-beam was broken by coming in contact with the under part of the cap of the bowsprit. . . Had the jib- boom come in contact with the walking-beam it woul occin-red from in- 'lil FOR LOWER CANADA. 218 cvitable .accident (a), and as this rule was followed in this Harold Court very recently, it is adhered to on the present 1^^^"^^°^*^ occasion (b). Action dismissed. Fournier, Ilearn, and Larue, proctors for Promoters. Blanchet and Pentland, proctors for Respondents. R. Alleyn, Q.C., Counsel. {a) Tho Itinerant, 2 W. Rob. 214; Tho Addlor, 5th Doc. 1845. (b) Tho Lady Head, and Eliza Christie, 11th Nov. 1873. 214 CASES IN THE VICE-ADMIUALTY COURT Friday, Attrjvst 2lst, 1874. AMERICA— Harries. Whoro tho master of a stoamor nxactcd an exorbitant contract for salvage service from the master of a sailing vessel, which, with tho mate alono on board, was in imminent danger of shipwreck, tho same was set aside and a qitKiititiu nMuiit allowed. Judgment. — Hun. G. Ohill Stuart. AMFiiirA. The Moisic Iron Company, owners of the iron screw steamer Margaretha Stevenson of 06 tons register, com- manded by Eugene Hammond, liave brouglit this suit for a sum of £1,500 sterling against the o'vners of the America, a brigantine of 1S9 tons, commanded by Jolni Harries, as the stipulated price for salvors' services rendered to her on the 22nd of November of last year, by the Margaretha Stevenson, having gone out from the harbour of Bic and towed her within it. In tlieir respon- sive plea, the owners of the America say, that advantage was taken of the master of that vessel to impose upon him an exorbitant contract when their vessel was in distress, and the life of her mate was in danger. They also plead that the America was injured from having been struck by the steamer, and from having been placed in a bad bertli within the harbour of Bic. Tliey repudiate the agreement of tho master to pay the sum of ^41,500 sterling ; they admit a salvage service, and leave the value of it to be settled by this Court The two last objections retpiire no further notice than to say, that tho collision complained of was incident to the salvage service, and was caused by tho necessity of breaking ice around the vessel before she could be reached, and that the berth -iven to her in the harbour is not proved to have been von I.OWEU CANADA. 216 insufficient. But, as respects tlie charge o coercion, to extort from the master of the America a promise to pay an exorbitant price, it is a serious one, and as this is the first of a long scries of salvage cases which have come before this Court wherein an agreement has been impugned for this cause, it is well that the principles which guide to a MlUAr.TY OOUHT sliip riloiiiiTrr of l.Of)? tons, niitl (;fore, and at the time, the Thames had reached the buoy, tho tng and her tows were on the north side of tho centre of the chfinnol, and the persons on board of them saw that the Thames was not making the turn as she should do at the buoy, the effect of which might bo a collision between her and tho tug and her tows or some one of them. The pilot and tnaster of the Gh uitTer adroitly caused her hawser, or tow line, to be cut, which br(jught her safe over to the south, quite out of the way ut the Thames; the Rocket was hurrying on to the north with the barge, when the Thames, in an attempt to pass between the latter and the Gleniffer, grazed the Rocket with her jib-boom, and struck the barge on her port- quarter, the effect of which was to break a hole in her of fifteen feet by five or six, mostly under the water Hue, Foil r.OWF.n CANADA. 825 penetrating lur iron plates nnd boiuling «omo of tho bar iron in her hold. Shu sunk almost ininiLMliatoly, the per- sons on hoard h(,.iiinr hut in tinio to savo themselvoH npon tho at.chor (,f I ho Thames. Thu latter, after rcmaininc,' at anchor near tho sunken harye for n short time, steamed lip tho river, ajul, finding a convenient place to tnrn, came down a;,^'iiii and passed within eighty feet of tho buoy on the starboard, and ..ne Iniiidr) Supra, MS. 230 TlIAMKSI. CASES I\ THE VICE-ADMinAI/IY COUUT was the law which the Court of Vice-Admiralty at Quebec was bound to administer, and that the Canadian Statutes on which the judge of that Court relied, were without authority in it, a proposition so startling, as observed by Sir Robert Phillimore in expressing the opinion of the Privy Council while affirming the judgment, that their lordships were totally unable to follow the reasoning of counsel upon it (o). In accordance with the judgment so confirmed by Her Majesty in Her Privy Council, and adopting it as a precedent, it remains with this Court to dismiss, as it now does, the owner of the Thames, the respondent, from these two suits, solely because the entire blame for the collision rests with the pilot who had charge of her ;— and, as the rule is in such case not to award costs, there are none allowed * Cook for the promoters. Ross and Stuart and Andveivs, Q.C, Counsel for the respondents. (c) L. E. 4P. C. C. 511. (*) " The Pilotege Act, 1873 " has been passed by the Uo- ininion Legislature of Canada since the collision which occa- sioned this suit. It contains the following enactment which was passed on the 23id May, 1873:— " Fkee Pilotage, 56. After the commencomont of this Act no owner or master of any ship shall in any case be compelled to employ or to give his ship into the charge of a pilot, not- withstanding any act making the employment of a pilot com- pulsory." By the 92nd section of the same Act, the 14th sec- tion of "An Act roapeoting the Navigation of Canadian Waters" (31 Vict. c. 58, s. 22), which is as follows :--" No owner or master of any ship shall be answerable to any per- son whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any place where the employment of such pilot is compulsoiy by law," is rtpealed. See the 388th section of "The Merchant Shipping Act, 1854." The difference which prevails upon the effect of compulsory pilotage, as between England and the United States, is to be found in the following opinions : — " The object of the Ijegisla- ture in establishing pilots has FOR LOVVEU CANADA. 231 been to secure, as far as possible, protection to life and property, by supplying a class of men bettor qualified than ordinary nuiriners to take charge of ships in places where, from local causes, navigation is attended with more than common diffi- culty. To effect this object, it has, m general, been made the dutj' of the master of every ship, on arriving at any of the places in question, to take a pilot on board, and to give up to him the navigation of the vessel. The master, however qualified to conduct the ship himself, is bound under a penalty, in a groat measure, to divest himself of its control, and to give up the charge to the pilot. As a necessary consequence, the master and owners are exempted from responsibility for acts re- sulting from the mismanage- ment of the pilot." Per Baron Parke (Lord Wensleydale) apud Lucey v. Ingram, 6 Meesou & Welsby, 314, A.D. 1840. " It may indeed be admitted, that in many of the cases, the judges, in giving the judgments, refer to the obligation of the master to take a pilot, as the ground on which his irresponsi- bility is founded ; and no doubt that is the foundation, and pos- sibly the only foundation, on which it can rest independently of the statutes ; but the language of the exempting clause in the last Pilot Act carries the doc- trine further, and it may well be conceived that the common law doctrine was not arcidental but intentional.'" Ibid. "Whether the Merchant Ship- ping Act applies to this case or not, I am of opinion that the owners of The Annapolis are exempt from responsibility by reason that the employment of the pilot was compulsorj' : the pilot was not their servant or agent ; they could not avoid en- trusting him with the manage- ment of the ship. In the cases of The Maria and Protector (1 W. Eob. 45) I have stated at some length my reasons for coming to this conclusion. I believe that the doctrine I then maintained, and nov/ adhere to, is consonant with justice, and is in strict accordance with the principles adopted by the Le- gislature in the Merchant Ship- ping Act." Per Dr. Lushing, ton, in the case of The Annapolis and The Johanna Stoll, 21st March, 1861. Reported in Mit- chell's Maritime Eegister, of 20th April, 1861 ; 1 Vernon Lushington's Eop. 312. The China. — A suit was com- menced on the 21bt October, 1863, in the Southern District of New York, against the owners of the steam-ship China for da- mage to the brig Kentucky, resulting from a collision with the China, at the port of Now York, on the 15th July, 1863. A decree for the libellants was pronounced by the Hon. Samuel R. Betts, in the Southern Dis- trict of New York. On appeal to the Circuit Court the decree was affirmed, and the following opiijion expressed : — Nelson, Chk/ Jmtice.~Thk TnAMKS. 233 TiiAMrs, CASES IN' Tlir. VK^K-APMIRALTY COl'RT. is a caao of collision in the har- bour of Now Yoik. Tho defence is, that the steamer at tho time of tho col- lision -was exclusively undrr the charge and direction of a Sandy Hook pilot, duly licensed by the Board of Commissioners under tho laws of Now York. These laws are accurately stated in the brief of tho appellant, and tho result is, (1) That tho master cannot act as a pilot in tho harbour without being guilty of a misdemeanour, and punishable by lino and impri- Bonmont; and (2) lie cannot emjiloy an unlicensed iiilot with- out forfeiting to tho Board of Commissioners tho penalty of §100; and (3) Tho master and owners are bound to pay full pilotage to the licensed pilot first speaking and oiforing his services, whether accepted or not. It is clear, therefore, that tho master and owners have no chauco as to tho taking or not of a pilot, or in tho selection of him, and although there is no penalty, in the technical sense of the term, imposed for tho omission to take one, yet tho taking was compulsory, as tho vessel cculd not get to sea with- out the licensed pilot, except by subjecting tho master or his owners to penalties. And, if tho case was ponding in tho Admiralty in England, or, per- haps, in any of the Courts of Law in Westminster Hall, the decree wor.lu bo in favour of the respondent in the Court bolow, for we shall not undertake to mnko a distinction when nouo in substance exists. Tho only question in our judgment is, whether or not wo shall follow the English rule. We agree there are solid rea- sons in favour of it, for it seems hard to subject the owners of tho vessel to damages for tho fault of one in navigation of her in respect to whom they had no choice in tho selection. But tho judicial mind in this country seems to have recoiled from this rule of the English Admiralty, and, as far as wo know, it has novor been adopted or applied under our laws regu- lating tho employment of pilots. Tho reason given, is tho utter inability of this class of persons to meet tho demand of damages for their negligence or unskil- fuluess in the discharge of their duties, coupled with tho idea that tho whole policy of tho pilot laws is for the special be- nefit of that class in tho com- munity engaged in navigation ; and although the emi)loyment of the pilot is compulsory, yet, in the judgment of the law making power, perse ^s so em- p' are fitter persons for tho d. .ago of tho duties than if tho master or owner had mado the selection. We confess the inclination of our own mind is in this direc- tion, and, as at present advised, shall hold the owners respon- sible, expressing the wish that tho case be taken to the Su- preme Court, where the vexed question may be definitely settled. Decree allirmed, APPENDIX. A. B, C. D. CONTENTS. —An Act to iiiiprove the practice and to extend the jurisdiction of tiie High Court of Admiralty of England. —An Act to m aki])rovi si onfojthe Judge, Eegistiar, and Marshal of the High Court of Admindty of England. —An Act to extend the jurisdiction and improve the practice of the High Court of Admiralty. —An Act to facilitate the appointment of Vice-Admirals and of ollicers in Vice-Admindty Courts in Her Majesty's i)ossession8 ahroad, and to cijntirm the past iirocceujngs, to extend the juris- diction, and to amend the practice of those Courts. The " Vice- Admiralty Courts Act, 1863." -An Act to extend and amend the Vice-Admiralty Courts Act 1863. ' -An Act to extend the jurisdiction, alter and amend the ino- ndure and ])ractice, and to regulate the establidunent of the Court of Admiralty in Irehmd. -An Act to regulate the cciiduct of Her ilajesty's ."sulijocts during the existence of hostilities between foreign States with which Her Majesty is at peace. 11. — An Act to provide for the prosecution and trial in Her Majesty's Colonies uf oU'ences committed within the jurisdiction of the Admiralty. 1.— Regulations for preventing collisions at sea appended. to the Order in Council dated 9th January, 1863, which were issued in pursuance of " The Merchant Shipping Act Amendment Act 1862." J.— An Act of Congress of the TTnited States of America fixing certain rules and regulations for preventing collisions on the water. K.— Order in Council extending sailing regulations to ships of the United States when uaviLmtiuL^ tlio inland Wiiters of North America, whether within British jurisdiction or not. E.- E.- G,- 231 CONTENTS. L.— All Act respect ill;,' invcstiijivtioii into sliiinvreclcs. Logislature of the I'ldviiicc of Uauiidii. M.— An Act resiiecting the imvigiition of Ciinailiun waters. Dominion of Caiuula. N.— Onler in Council of the SOtli July, 18r.8, respectirif,' tlic appli- cation of Articles 11 ami KJ of tlie re^;ulatioii8 aliove nu-iilionud as to two ships HKietiiig each other end on, or nearly end on. O.— The Merchant Shippiii;,' Act, 1873. Sections relating to engage- ment and discharge of seamen and caises of collision. P.— The Lakes not inland. Oi.iiiion of the Supreme Court of Michigan as to whether the Western Lakes of North America are inFand within the meaning of Acts of Congress of the United States. Q._The following cases decided hy the lion. Sir AVilliam Young, Chief Justice, sitting in the Vice- Admir.ilty Court at llalifa.K, Nova Scotia : — The City of Petersburg. The Wavelet. The Chase. The Three Sisters. R._Comiiiission imder the Great Seal of the High Court of Ad- miralty of Eni;laiid, appointing George Okill Stuart Judge of the Vice- Admiralty Court at the City of Quebec, in the Province of Quebec in Canada (in the vacancy caused by the death of the Hon. Henry Black), dated at London, the 27th October, 1873. S._C.eographical limits of the ancient Government of Quebec and of its subseciuent territorial divisions under Acts of the Parlia- ment of the United Kingdom. ii APPENDIX. 3 & 4 VICT., Cap. 65. An Act to improve the Practice and extend the Jurisdiction of the High Court of Admiralty of Enyland, [7lh August, 1840,] Whereas the jurisdiction of the High Court of Admiralty of England may be in certain respects advantageously extended, and the practice thereof improved : Be it therefore enacted hy the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons, in this present Parlia- ment assembled, and by the authority of the same, that it shall be lawful for the Dean of the Arches for the time being to be assistant to and to exercise all the power, authority, and jurisdiction, and to have all the privileges and protections of the judge of the said High Court of Admiralty, with respect to all suits and proceedings in the said Court, and that all such suits and proceedings, and all things re- luting thereto, l>rought or taking place before the Dean of the Arches, whether the judge of the said High Court of Admiralty be or be not at the same time sitting or transacting the business of the same Court suid also during any vacancy of the ollice of judge of the said Court, shall be of the same force and effect in all respects as if the same had been brought or had taken place before the judge himself, and all such suits and proceedings shall be entered and registered as having been brought and as having taken place before the Dean of the Arches sitting for the judge of the High Court of Admiralty. II. And be it declared and enacted, that all persons who now are or at any time hereafter may be entitled to practise as advocates in the Court of Arches are and shall be entitled to practise as a^lvocates in the said High Court of Admiralty ; and that all persons who now are or hereafter may be entitled to act as surrogates or proctors in the Court of Arches shall l>e entitled respectively to practise and act, or to be admitted to practise and act, as the case may be, as surrogates and proctors in the said High Court of Admiralty, according to the rules aiid practice now prevailing and observed or hereafter to be made in and by the said High Court of Admiralty touching the admission and practising of advocates, surrogates, and proctors in the said Court respectively. Dean of Arches to sit forjudge of Court of Admiralty in certain cases. Advocates, surrogates, and proctors of Court of Arches to be admitted in Court of Admiralty. o< 30 API'I.NDIX. Wlicncvor a Vl'SSl'l sliiill lio nrrostcil, or ])r()i'('(MlM Ijitiii;;!!! iiitii rt'Kic made to the Court of Admiralty on distribiitiun. III. Aii.l lie it ciimtiMl, tlial aricrllii' pn-isinj,' of tlii:^ Ai't, wlicn- i'wv iiiiy ^ or vi'rt.si.1 !;n sliiji or ((ia->,'oinj,' vcssid, and to enl'orce tlie piymiiit tlu'rcof, whether suidi sdiip or ve.i,sel may have liuen within tiie body of a county, or upon the hi^di seas, at the time when the Hervices were rendered or dama^je received, or iieceasaries furnirthed, in re-ijiect of which such claim is nuide. \'ll. And be it enacted, that in any suit drpendiuL; in the said lll^h Court of AJniimlty the Court (if it .shall think lit) may Humnion before it and examine or cause to be examined witnes.ses by word of mouth, and either before or after examination by dejioHition, or before a commifiHioner, as hereinaftj'r mentioned ; and notes of such evidence shall be taken down in writinj,' by the judge or registrar, or by such other person or persons, and in .such manner, as the Judge of the .said Court shall direct. VIII. And be it enacted, that the said Court may, if it shall think fit, in any such suit issue one or more special commissions to some person, being an advocate of the said High Court of Adndralty of not less than seven years standing, or a liarrister at law of not le.s.s than seven years standing, to take evidence by word of mouth, upon oath, which every such cnmmissioner is '.'reby empowered to ad- mini.vtijr, at such time or times, place or places, and as to such fact or facts, and in .such manner, order, and cour.se, and under such limita- tions and restrictions, and to transmit the same to the registry of the said Court, in such form and manner as in and bv tlie 'ommissidn shall be directed ; and that such commissioner sliall be attiaah d and the witnes.ses shall be examined, cross-exaniineil, and re-t!.xamined by the jiarties, their eoun.sel, pro; tors, or agents, if such parties, oreitlier of them, shall think tit so to do ; and such cnmmission shall, if need be, make a .special report to the Court touching such examination, and the conduct or alisence of any witness or other per.-on thereon or relating thereto ; and the said High (Jourt of Admiralty is hereby authorised to institute such proceedings, and Tnake such order or orders, upon such report, as justice may reiiuire, and as may be insti- tuted or made in any case of contempt of the sjiid Court. IX. And be it enacted, that it shall be lawful in any suit depending in the said Court of Admiialty for the judge of the said Court, or for any such commissioner appointed in pursuance of thi.s Act to rebuilt the attendance of any witnesses, ;ind the production <-f r,ny deeds, evidences, books, or writings, by writ, to be issued bv such sahiKi^na. Evidonce may lio tiik(!ii viva V(ic(> liefore .'V cdiiiMiissioucr, Attendance of witnesses and production of papers may be ipelled by 288 Ari'l'.NIUX. PrftvinionH of »* ■» W. I, c. I'J, ftxt('iiik'(l t" Ciiiirt iif Admiralty, Piiwcr t III! ill the (li>''i(tiiiii ot' tlio Court. Powrr to (lirtot new tri;il«. juili,'!' or coimiiissioiicr in siicli niid the sainc rirm, nv hh mwly ns limy l>i', 118 tliat in wliich a writ of Hubpn-ua ae imnished for such contemiit in the said Court. X. And he it enacted, that all the provicions of an Act passed in the lonith year of the ivij;ii of his late MajcHly, intituled " An Act ' i' the further Aniendmeiil of the Uw.aiul lietler Administration of iisticc' with respect to the admissibility of the evidence of wit- nes-e- iiitere-fed (m acciamt of the verdict or judgment, shall extend to the admissibility of evb!i ace in any suit pemliuK in the said Court of Admiralty, and the entry directed by the said Act to be made on the leord of Judt,'miiit shall be made niu.n the document containiiin the limd sentence of the said Court, and shall have the like etl'tct as the entry on such record. XI. And be it enacted, that in any contested snit dependiiij,' in the Hii.l Court of Admiralty the said Court shall have power, if it ^^hall think tit so to (b>, to direct a trial by jury of any issue oi issues un any .piestion or niu'stions of fact arisin;,' in any such suit, and Uiat tlic substance and form of such issue or issues shall be specified by the j>id','e of the said Court at the time of directing' the sa ue ; and if till- ])arties diili-r in drawin-; such issue or is-tues, it .shall be icfcired to the jud-ie of the said Court to settle the sanu; ; and such trial siuill be iutd before some jud;,'e of Her Majesty '.s Superior Couits of Couunon Law at Westminster, at tiie sittinj^'.s at Nisi Friu.s in London or Middlesex, or before .some judj,'e of assize at Nisi I'rius, as to the said Court shall seem fit. XI I. And be it enacted, that the ci-sts of such issues, or of such commission as aforesaid, as the jud^e of the said Hi^'h Court of Ad- miralty shall under this Act direct, shall be paid by such party or iiarlie-s, person or neisons, and be taxed by the registrar of the said Jlif^h Court of Admiralty, in such manner as the said judge shall direct, and that paynu lit of such costs shall be enforced in the same nianiur as costs between I'arty and party may be enforced in other pioceeilinj^s in the said Court. XI II. And be it enacted, that the said Court >{ the naid issue, and of tile verdict therein, nhall be transmitted l>y the aHsociate or other proper ollieer to the re^'istrar of the Haul Court of Adiiundty ; and the vei.lictof the jury ujion any audi issue (un'. ..s 'lie ume shall be net aside) shall be conclusive Uj.oii the said C uri, and u) )n all such pei-sons ; and in all further proceedings in 1 le i.nise in .hich such liii t is found the said Court shall assume sue: hu . to be n found by the jury. XVII. And be it enacted, that every pers.m ,. ..o, if this Act had not been passed, might iiave appealed and niaile suit to Her Majesty in Council aginst any proceeding, ilecree, or sentence of tin said High Court of Ailmiralty under or by virtue of an Act passed in the third year of the reign of his late Majesty, intituled "An Act for trans- ferring the Powers of the High Court of Delegates, both in Ecele- siasiical and Maritime Cmuscs, to His Majesty in C-'ouncil," may in like manner aj)i)eal and n\ake suits to her Majesty in Coiincil against the proceedings, decrees, and sentences of the snid Curt in all suits instituted and proceedings had in the same by virtue of the provi- sions of this Act, and that all the provisions of the said last-men- tioned Act shall apply to all appends and suitsagainst the proceedings, decrees, and sentences of the said Court in suits instituted and pro- ceedings had by virtue of the provisions of this Act ; and such appeals and suits shall be proceeded in in the manner and form jiro- vided by an Act passed in the fourth year of the reign of his late Majesty, intituled " An Act for the better Administmtion of .Justice in His Majesty's Privy Council ;" and all the provisions of the Siiid last-mentioned Act relating to appeals and suits from tiie High (.'ourt of Admiralty shall be iipj.lied to appeals and suits from the said (Jourt in suits instituted and proceedings had by virtue of the ))ro- visions of this Act: i'rovided always, thiu in any such anneal thp notes of evidence taken as hereinbefore provided by or under the 23i> OrantiriK or rrfuMitn; new trill!, iiiatier of a|i|iuul. HIIIh iif cxnep- tinlis til lie hIIiiUimI iiU trials iif i>HUON, Rocoril (if tlio issue III lie triiliHiiiilleil to the ('(lint (if Admiralty. Provisions of 2 ik 3 W. 4, c. ii2, as to ai)i)C:d.s to apply to suits in (,'()urt of Ailniiriilty niidui' this Act. 3 &. I W. 4, c. 4 1 , to apply in same manner. ^ii Cfirtifipii r.i-.tra of evidence 210 Arrr.NPix. t'\kini miy 1)C acliiiiltuil ou appeal. Powor for Jii.l-f of Ail- inii'Mlty to iiuiku rules of CouH. Protection of the juili,'e of the Court of Adiiiinilty. Gaolers to re- ceive prisoners eoninriitteil hy the Court of Ailiniriilty or Iiy Ailiriinihy coroners. Prisoners in eoiiteinpt may be itiseliiUgetl. Jurisdiction to (lircetimi of the jii.lsf^ of the «aiil IIi','h Court of Ailniiralty shall he Ct-Ttiru'ilhy the said juil^e to tier Majesty in Coiiiieil, ami shall he admitted to prove the oral evidence j,'iven in the said Court of Admi- r.ilty, anil that no evidence shall he admitted on such aj.iieul to con- tradict the notes of evidence so taken and certilied as alore-aid, hut tliis piuviso shall ncit enure to prevent the Judicial Committee of the I'rivy Council i'roni direcliuL; witnesses to he exanuned and re- i .\aniined upon such facts as to the Committee .shall seem fit, in the manner directed hy the lasl-iecited Act. XVI II. And he it enacted, that it shall he lawful for the judge of the sai.l lIi.^dl Court of Admiralty from time to time to make such rules, ordere, and re-ulations respectinj,' the practice and mode of proceedin;,' of the said Court, and the conduct and duties of the ollicers and practitioners therein, as to him sliall seem fit, and from time to time to repeal or alter such rules, orders, or re.^'ulatious : Pro\ iited alwiiys, that no such rules, onleis, or rej,'ulati(ms .shall he of any force or elUct until the same shall have heen aiipro\ed liy Her Majesty in Council. XI.X. And he it I'.echired and enacted, that no action sliall lie a,^Miust the ,j\id;,'e of the said High Court of Admiralty for error in jud-nu'ut, and that tlie said judge shall he entitled to and have all privileges and protections in the exerci.se of his jurisdiction as judge of the said Court which hy law appertain to the judges of Her Maji'stv's superior courts of eonunon law in the exercise of their several jurisdiction.s. \X. And he it enacted, that the keeper for the time heing of everv common gaol or prison shall be bound to receive and take into his cu.stody all persons who shall he committed thereunto hy the said Court of Aei..ou to escape and go at large without lawful warrant, shall ]>e lialde to the like ]ienalties and conseiiueiices as if such i)erson had hci'U committed to his custody hy any other lawful authority. XXI. And he it enacted, that it shall be lawful for the judge of the said High Court of Admiralty to order the discharge of any person who .shall he in custody for contempt of the said Court, for any cause other than for nonpayment of money, on such conditions as to the judge shall seem just : Provided always, that the order for such discharge shall not be ileemed to h.ive purged the original con- temjit in case the conditions on which such order shall be made be not fullilled. XXII. And he it enacted, that the .said High Court of Admiralty I APPENDIX. sliall have jiirisflictinn to d^cido all matters ami questions concemint,' l)0(ity of war, or the distrihtition thereof, which it shall please Her Majesty, her heirs and successors, hy the advice of her and tlieir Privy Ooiincil, to r.^ferto the jud-mfut of tlie said Court ; and in all matters so referred the Court siiall proceed as in cases of pii/.e .,f war, and the jud-ment of the Court therein shall l)e binding upon all parlies concerned. XX HI. Provided always, and ho it enacted, that nothing herein contained sliall be deemed to preclude any of Her Majesty's Courts of law or eites,emoliimeiits. and ])rolits heretofore received by or on account of or for such registrar K .Tndsc of the High Conrt 'M. Office of rcKis tiar i\iit to \io cNei'iitcil liy il('liUty. Ai'i'oiiitiiiciit iif ilc|piit.y ri'^ia tiar ill i.'aso of illiicMS, kc. the Rrantee shall have heou ,ju.l-c ..f tlic sai.l Court ihnm^ at loMst fifti-eii years, or iniless such ii^raon shall be ulllideil with some pevmanoi.t inl:n„ilv disnMinc^ him IVoni the flue execution of lim said ollice, which shall he expressly recited in the prant : I'rovide.l also, that if the ;;raiitee of any such annuity shall hold any other ollice of profit under Her Maj.'sty he shall he entitled to receive 80 nuich only of the said annuity as, together with the salary and profits of such other oflice, shall not exceed the sum of two thousand pounds. . . , ,, VIII And he it enacted, that the said salaries and annuities shall 1.0 paid, free and clear of all fees, taxes, and charges whatsoever, hy four equal point suih dei)uty or assistant, and direct what part of the salary of such registrar sliall be received by sucli deputy or assistant, and the same shall be paid over to and received by him accordingly. XI. And be it enacted, that at any time when the state "..f the business of the said Court sliall appear to ic.piiie the appointment of an a.ssislant registrar, the judge of the High Court of Admiralty may direct the registrar to make such appointment ; and such assistant registrar, being one of tlie jn'oclois ..f the said Court, shall tlieieupon be appointed by the registrar, subject to the approval .,f Ihe judge of the (Vurf, and for such time as the jud-e may think necessary, and sliall be entitled to receive a salary, not exceeding twelve humlred pounds, as Her Majesty shall be pleased to direct" which Sidary in either case shall be paid out of the same fund and be subject to the same provisions as are herein enacted with respect to the payment of the salary of the registrar. Xn. Provided always, and be it furtlier enacted, that th- ]iiijritiiiriit of ail iissist.oit registrar ; Ills salary. Aceount of im'iuisu in salaries ,oi>l aii|Miiiitiiu'iils to lie laiil on tin; 'faille of tho llniiso of Coiu- inoiis. Her Majesty niay alter the Tabic of l-'ees. Kcgistrar to account an- nually for all tees icccivetl by hiiu. 246 APPENDIX. Foes to lio cariieii to Fee Fmiil. Surplus to l)e pai'l to the Coiisolidaieil Fuud. particulars of tlie payments, (lisbur-temcnts, allowances, and charges cor. ^..tilting the difference betwedi such gross and net amounts, and also a lilM\l I'or; and in case tliere shall be at any time a deficiency in the said Fee Fund, so that the same shall not be Buificient to discharge the several salaries and sums of money heren-- before charged thereon, the judge (.f the High Court of Admiralty shall, by writing under his hand and seal, certify to the Lord High Treasurer, or to the commissioners of Her Majesty's Treasury, the amount of :^ueh deficiency ; and the Lord High Treasurer, or any three of such commissioners, shall forthwith, upon the receipt of such ortiticate, direct that there Ijc issued and ]iaid out of and charged upon the Consolidated Fund of the United Kingdom of Great Britain and Ireland, to the principal or deputy registrar of the said Court, (;n account of the Fee Fund of the said Court, such a sum of money as shall be sufficient to cover tlie deficiency so certified to them as aforesaid. XVI. And be it enacted, that when and so often from time to time as the said Fee Fund shall amount to such a sum as shall be sulfieient to I'ay all the salaries and sums of momy hereinbefore charged thereu[.on, and there shall be a surplus remaining after sucirpayiMent, tlu^ registrar of the lligli Court of Admiralty shall, once in' every (|uailer of a year, (that is to say,) on or before the twentieth dav of April, the twentieth day of July, the twentieth day of October, and the twentieth day of .lanuary, pay such surplus (if m APPENDIX. 247 any) into the Bunk of Enf^laiid, to the credit of Her Majesty's E.\cIio(|iK'r, to tin; iiccouiit of tlio said Consolidiitcd Fund. XVII. And bti it enacted, that it sliall be hiwful for tlie comniia- sioners of Her Majesty's Treasury of the United Kin;,'(him of (Ireiit Britain and rndaud fur the time beinf,',and tlieyare hereby authorized and reipiired, liy warrant under their liands or the hands of any tlirec of Ihein, t.. direct the several payments aforesaid to be made out of the Consolidated Fund as liereinbefore prescribed. XVIII. And be it enacted, tli.at neither tiie judfje nor any future roj^istrar, assistant re-istrar, or marshal of tlie liigh Court of Adndralty, slmll be entitled to, or take for his own use or benefit diiwtly or indirectl}', any fee or emolument whatsoever, save the salary, allowance, or annuity, to which he shall be entitled by virtue of this Act. XIX. And be it enacted, that in case the said Lord High Tre.isurer, or any three or im)re commissioners of Her Majesty's Tro isiiry, for the time being, shall be dissatislied with any account to be rendered to tlu:ni as aforesaid, it shall be lawful for him or them to refer the sanus to the judge of the High Court of Adnuralty ■uu\ to the dean of the Arches, or to either of them, who shrll there- upon, by such ways and nusembled, and by the authority of the same, as follows : 248 Avvvrsm\. Short tillo. Interpretation of tcruiti. roniniciico- iiiuiit ijf Act. As to cliii'.l.s fdi' liiiililin;,', ^■|lli|■llill^^ or ii'p;i'iiin{; of sliijis. As 1(1 claims lor iicccssiirics. As lo claims f'lr ilaniagc to cargo iiniiortcil. As to claims for daniage liy any sliil>. IIilIi Court of Ailiiiiralty to (kM'iilo (jiies- lions lui to (niricrslii[i, A'c, of bliijis. 1. This Act may l.e cited for nil jniriioscs as the "The Adniirulty Ci>ttit Act, 18(11." 2. Ill the inter pre tati on and for the jmrposcB of this Act (if not inconsistent with the context or snlijcclj tlic rollowin^' terms shiill liave the resiiective meanings heivinaitcr assigned to them ; tliat is to say, "Ship" shall include any description of vessel used in navigation not propelled by oars : " Cause " shall include nny cause, suit, action, or other proceeding in the Court of Admiralty. 3. This Act shall cmie into ojieration on the first day of June, one thousand eight hundred and sixty-one. 4. The High Court of Admiralty shall have jurisdiction over any chiim for the Imilding, eiiuipjiing, or repairing of any sliip, if at the lime of the institution of the cause the ship or the proceeds thereof are under arrest of the Court. 5. The High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port lo which the ship belongs, unless it is shown to the satisfaction of the Court that at the time of the iiistiaition of the cause any owner or part owner of the ship is domiciled in England or Wales : i'lovided always, that if in any such cause the phiiiitilf do not recover twenty pounds he shall not he entitled to any costs, charges, or expenses incurred hy him therein, unless the judge shall certify that the cause was a fit one to he tried in the said Court. 0. The lligli Court of Admiralty shall have jurisdiction over any claim liy the owner or consignee or assignee of any hill of lailing of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the jiart of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales: Provided always, that if in any such cause the plaintilf do not recover twenty pounds he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said Court. 7. The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship. 8. The High Court of Admiralty shall have jurisdiction to decide all (piestions arising between the co-owners, or any of them, touching the ownership, jwssession, einidoymeiit, and earnings of any ship registered at any port in England or Wales, or any share thereof, and may sellie all accounts nntstiinding and unsettled between the parties in relation tliereto, and may direct the said ship or any share thereof ArrKXPix. 249 to be sold, ami may make such order in the premises as to it sliiill sci'ui (it. !). All the provisions of "Tlie Mercliant Sliipping Act, 1854," in r(f,'ard to salvaj,'e of life from any sliip or huat witiiin the limits of tiie United Kingddm, shall be extended to the salvage of life from any British sliip or boat, wlieresoever the services may have been rendered, and from any foieign ship or bnat where the services have been rendered eitlier whcdly or in \nivt in British waters. 10. The High Court of Admiralty shall have jurisdiction over any claim by a seaman of any ship for wages earned by liim on b(nird the siiip, whether the same be due under a special contract or otiierwise, and also over any claim by the master of any sliip for wages earned by him on board the ship, and for disbursements made by him on account of tiie ship : Provided always, tliat if iu any such cause the idaintilf do not recover lil'ty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the Judge sliall certify tliat the cause was a fit one to be tried in the said Court. 11. The High Court of Admiralty siiall have jurisdiction over any claim in respect of any mortgage duly registered according to tlie provisions of ' Tbe Mercliant Shijiping Act, 1854," whether the siiip or the proceeds lUereof be under arrest of the said Court or not. 12. The Higli Court of Admiralty shall have tlie same powers over any British ship, or any share therein, as are conferred upon the Iligli Court of Cliancery in England by the sixty-second, sixty- third, sixty-fourth, and sixty-fifth sections of "The Merchant iShipping Act, 1854." 13. Whenever any ship or vessel, or the proceeds thereof, are under arrest of the High CVjurt of Admiralty, the said Court shall have the same powers as are conferred upon tlie High Court of Chancery in England by the ninth part of " The Merchant aiiipping Act, 1854." 14. The High Court of Admiralty sliall be a Court of. Record for all intents and purposes. 15. All decrees and orders of the High Court of Admiralty, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the same elfect as judgments in the Superior Courts of Common Law, and the persons to wliom any such monies, or costs, charges, or ex])enses, shall be payable, shall l)e deemed judgment creditors, and all jiowers of enforcing judgments jiossessed by the Superior Courts of Common Law, or any judge thereof, with respect to matters depending in the same Courts, as well against the ships and goods ane.■^ted as against the person of the judgment debtor, shall be possessed by the said Court of Admiralty with rrsp-cct to snatters therein depending ; and all remedies at Common Law jiossessed by judgment creditors shall be in like Extending l/it 18 Viot. 0. lot, a« to (■l.iiiiis fur sal- Viigo of life. As to claims for waj,'('« ami for ('i=ilniisc- mciits Ijy m.'isti'r of a sliip. 3 & 4 Vict, c. 65, in regard to niortgages extended to Coiirt of Admiralty. Sections 62 to 65 of 17 & 13 Vict. c. 104, extended to Court of Admiralty. Tart 9 of 17 & 18 Vict, c. 104, extended to Court of Admiralty. Court to lie a Courtofrecord. Decrees and orders of Court of Admiralty to liavo effect of judgments at Common Law. 260 APPFNinX. Ah tn olaililH to goiiiU tiikuii in uxuouliuii. Powers of SiiiieriorCourts cxtendod to Court of Admiralty, Party in Court of Adiidrriity may apply for Ah order for niiiniicr pooRcsiacd hy persons to whom any ironies, costs, clmrRco, or i\]iuii«i's nru liy .such orders or dcci'ces of thu said Court of Admiralty diructml to \n- i)aid. 10. If any claim shall Ki made to any f;nodn or clmttels taken in I'xi'cution iiridcr any pioi-iv^K nf the Hi-li Court of Adniimlty, or in HMpeit of the sii/.ure tlier<'i.|', or any ait or iiiallt'r connecti 1 there- with, or in r, -ipect of the pro<'('party ayainst whom •'■:• ;"A)i'C'ii8 Vn- i .lued, the rej^istrar of the said Coiu-t may, upon applkaUou oi thu ollicer charged with the execution of the prxe^M, whether hefore or after any action hrou^,dit against such oHicer, issue a summons calling before the -iiud Court both the party issuing such process and the iwirty making the claim, and thereupm any action which shall have been brouglit in any of Her Majesty's Superior Courts <>' ''k ' mi any local or inferior Court, in respect of such ci am, ticizure, act, or matter as afurcsaid, shall be stayed, and the Court in which such action shall have been brought, or any judge thereof, on pnx f of the issue ot such summons, and that the goods and chattels were so takn; in execution, may order tlit! party bringing the action to pay the fosls of all proceediiig-i had upon the action after issue of lh.> summons out of the said Admiralty Court, and the judge of tlu' said Atlmiralty Court shall adjudi -'..r; i... --=- inspection by the Trinity Masters or ''ers ar ointed lor the trial ArrKvnix. 201 of tlic Haiti cauHc, or by the pnrty hiinsflf or liia wit '*<*en. of any sliip (-r otlmr persr.niil or real iiri)|)(iinintmont i>f rL'ni*''''""' anil of (It'iiuty or HH»i«tivnt registrar. Appiiintiiicnt of oxaniincrs. Stamp iliity not pavalilu on Milisi'ipicnt ailmissions of jiroc'torH or solicitors. I'rootor may ui't as agent of solicitors. 2Hen.4,c. 11, rejioaleil. Power of appeal in iiitcr- IdcMilory matters. Bail given in the ('ourt of Admiralty goori in tho C'ourtofappeal, with nfircncp to ffm«('« ninl nmttirs in the waiil Court, tho Mnie imwi'Ts an any Hiirri'^^ati' ol' tin; jiul^;(! i»t' tlie saiil I'oiirt Hitting' in (.'hanilicrH mi^'lit or cimlil liavu luTutolbri; lawfully I'XiTcisctl ; ami ull pdwcnt and uulhoritii'S by this or any otlur Art cunl'erri'il ujkpu or vi'stfil in tlic rt'j,'i>trar ul' tlio .taiil Ili^h Court of Ailniiralty may hu cxercisud liy any tleputy or assistant rc^'istrar of the said Court. •J(). Thu ri'^'istrar of tlie said (,'ourt of Admiralty whall havo power to admiidster oaths in nlation to any rause or matter dL'ii.,nilin,L,' in tlu! said Court ; and any jiersou who shall wilfully di'pi.L' or allirni falsely in any proceedinj^ before thu registrar or before any deputy or assistant n^'istrar of the ,id Court, or before any ]iiraon authori/.ud to administer oaths in the said Court, shall bo di enied to be f,'uilty of perjury, and shall be liable to all the pains and penultieH attaching to wilful and corrupt jierjury. 27. Any advocate, barrister-atlaw, proctor, attorney, or solicitor of ten year^' standing? may be appointed registrar or a.-^sistant or dii>uty reyi^.rar of the said Court. 28. Any advocate, barrister-at-law, jjroctor, attorney, or solicitor may be appointed an exandner of the lli^di Court of Adnuralty. 29. Any person who shall have paid on hia adndssion in any Court as a proctor, solicitor, or attorney the full standi duty of twenty- live pounds, and who has been or shall iiereafter be adndtted a proctor, solicitor, or attorney (if in other respects entitled to be so adndtted), shall be liable to no lurtlier stamp duty in lespect of such subseiiuenl admission. 30. Any i)roctor of the lliyh Court of Admiralty may act as aj,'ent of any attorney or solicitor, and allow him to participati' in tho prdtils of and incident to any cause or mallL-r depending' in or connected with the said Court ; and nothiu},' contained in the Act of tho tifty-fd'th year of the rei^'U of Kiuj; (ieorL;e tiie Third, cliaiiter one huiidred and sixty, .shall be construed to extend to prevent any proctor from so doing, or to render him liable to any penalty in respect thereof. 31. The Act passed in the second year of the reign of King Henry the Fourth, intituled " A remedy for him who is wrongfully pursued in the Court of Adnuralty," is hereby reiieahd. 32. Any party aggrieved by any order or decree of the judge of the said Court of Admiralty, whether made (./• juirtc or otherwise, may, with the perndssion of the Judge, appeal therefrom to Her Majesty in Council, as fully and elieclually as from any iinal decree or sentence of the said Court. 33. In any cause in the High Court of Admiralty bail may be taken to answer the judgment as well of the said ( "oiirt as of the Court of Ajtpeal, and the said High Court of Adndralty may with- hold the release of imy j)roperty under its arrest until .such bail has Arpr;\i)ix. 268 lipon Kiviii ; and in imy npiioal I'rom uny ik-ciw i.r iiitlfr nf \Ur liijr|i Court of Adniiiiilty tin; Coiiii of Apinnl niiiy ninkc iiml I'lifoiti! it^ oilier iipiin.-t lln' siiiity or .-iiuvtii h who iii;iy liiivc A^furt] ,iny hihIi liiiil hoiid in tlic Niiiac niunntT iw il' lliu Imii Imd iiutn -iviu in tlio Coiiit of AiU'cal. ;U. Till" iligli Court of Admiralty may, on tlio ajiplinition of thu '^^ i" I'l" di'ft'ndiiiit in any caimo uf damage, and on \m institulin},' a cross '"■■"■'"«"' caUHC for tlio '""''• proceedings in personam. D. 26 VICT., Cap. 24. All Ad to/aa'Hlitli; the Appointnuiiit nf Vice Ailniinth ami nf Offkcn in Vice Adniimllij Courts in Her MKJrsty'n l\).isessiniis uhmtil, and to rmifina the pnat PrncccdiiuiK, to extend tlte Jurwliction, (ml to unund the Practice of those Courts. [8th June, 18()3,] Whkkeas it is expedient to facilitate the appointment of Vice admimls an-l of oIKcers in Vice Admiralty Courts in Her .Majesty's possessions abroad, and to conlirni tlie past proceedings, to extend the jurisdiction, and to amend the practice of those Courts ; He it thertfoie enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by tlie authoiity t)f the san'.e, as follows : 1. This Act may be cited for all purposes as the " Vice Admiralty Sliort title. Courts Act, ihti:)." 2. In the interpretation .and for the purposes (,f this Act (if not Interpretation inconsistent with the context or subject matter) the following terms of tunns. sliall liave tlie respective meanings hereinafter assigned to them : that is to siiy, " Her Majesty " shall mean Iler Majesty, her heirs and successors : 254 APPENDIX. AppnintinoTit of Vue a liiiiral. Alipointiuont of jiiilyo. AiiiKiiiitiiiniit of iTf-istiiir mill luarslial. N^iiiic 'if ii|i|p(pintiMM, kc t(l 111' iinlilicil to tilt' home govtTiiiiiont. The " AdmiraUy" slmll mean tlio Lonl U\<:}i Adminl or the com- niissiiPiicra i'lir exfciitiii]^ his ollico : " Briliali possL'ssiou " sli.ill iiK.aii any colony, ]il:uitation, settle- iiH-nt, island, or territory bcin;,' a part of the United Kingdom of Great Britain and Irehiud, or of Her Majesty's possessions in India : " Governor " shall mean the ollirer for the time hoing lawfnlly ad- miniatorin;,' the j,'overnment of any British possession : " Vice Admiralty ( 'onrt " shall mean any tif the existin;,' Vice Ad- miralty Courts enumerated in the suhedule niark(!d A. hereto annexed, or any Vice Admiralty Court which shall hereafter he established in any I'ritish possessitm : "Ship" shall include eveiy description of vessel used in navi- gation not propelled by oai-s only, wliether Jiritisli or foreign : " Cause " shall include any cause, suit, action, or other proceeding instituted in any Vice Admiralty Court. 3. In any I'lritish pimsession, where the olfice of Vice admiral is now or sliall at any time hereafter become vacant, the governor of such possession shall be ex ollicio Vice admiral thereof, until a noli- fieation isiectived in the jio-sessiuu that a formal ap]>(iintment to that oliice has been made by the Admiralty in the manner hereinafter mentioned. 4. In any I'.ritish posses-ion, where the olTice of judge of a Vice Admiralty Court is now or siiall at any time hereat'ter liecome vacant, the chief justice, or the princijial judicial oliicer of such possession, or the person for the linn; being lawfully authorized to act as such, fchall be ex ollicio judge of the Vice Admiralty Court, until a noti- fication is received in the possession that a formal aiipointment to that otlice has been made by the Admiralty iu the manner hereinafter mentioned. .'). In any British possession, where the office of registrar or marshal of any Vice Admiralty Court is now or shall at any time hereafter become vacant, the judge of the Court may, with the approval of the governor, appoint some person to the vacant office, until a notilicatioii is received in the possession that a formal ap- li.iintment thereto has been made by the Admiralty in the manner liereinai'ter mentioned, and may. for good and reasonable cause, to be approved by the governor, remove the iierson so appointed. The judge may also api)oint some person to act as registrar or marshal (luring the temporary absence; of eillier of those officers. (i. On any vacahiy in tiie oiilce of juiigo, rrgistrar, or marshnl of any Yvr Admiralty Court, the governor of the I'.ritish ))osses.~ion in which the Court is established shall, ;is soon as is practicable, communiaite to one of Her Majesty's principal Secretaaies of State APPKNMX. 255 tli(> fact of lli(> vnnancy, and tlie name of tlio person succeeding or appointed to the vacant oilice. 7. Nothing in tliis Act containeil f^liall he talccn to adoct the power of the A.hniralty to appoint any Vice admiral, or any jnd^'e, re-istrar, marsh d, or oilier ollicer of any Vice Admiralty Court, a.s heretofore, l.y warrant from the Admiralty, and by letters patent issued under sea! of the liii,'li Court of Admiralty of Eii<,'land. 8. No act dont' hy any person in tiie capacity of jud^'e, rc„'istrar, or marshal of any Vice Adndralty Court, which shall not have been set aside by any cimipetcnt authority before the passing; of this Act, shall be held invalid by reason that such person had not been duly appointed, but all auch Acts shall be as valid and effectual as if done by a person duly appointed. 9. No action, prosecution, or other proceediu}^ shall be brouj,'ht a,i,'ain8t any such person by reason of the iile-ality or informality of any Act hereby declared to be valid and ell'ectual. 10. The matters in respect of which the Vice Admiralty Courts shivll have jurisdiction arc as follow : (1.) Claims for seamen's wages ; (2.) Claims for master's wages, and for his disbursements on account of the ship ; (3.) Claims in respect of pilotage : (4.) Claims in respect of salvage of any ship, or of life or gooda therefrom : (5.) Claims in respect of towa^'e : (().) Claims for dama.Lje done liy any ship : (7.) Claims in respect of bottomry or respondentia bonds : (8.) Claims in respect of any mortgage where the ship has been sold by a decree of the Vice Admiralty Court, and the pro- ceeds are under its control : (9.) Claims between the owneis of any ship registered in the jios- session, in which tlie Court is established, touching the owner- ship, possession, employment, or earnings of such ship : (10.) Claims for necessaries sujiplied, in the [lossession in which the Court is established, to any ship of which no owner or part owner is domicile,! within the possession at the time of the necessaries being 8up{)lied : (1!.) Claims in respect of the building, eciuipping, or repairiu" within any British possession of any ship of which no owner or part owner is domiciled within the possession at the time of the Work being done. 11. The Vice Admiralty Courts shall also have jnrisdiclion — (!.) In all oa.ic:; i.f luvjirh of the regulations una instructions rehiting to IKr .Majoty's navy at sea : (2.) In all matters arising out of droits of Admiralty. 12. Nothing contained in this Act shall be construed to take awnv Saving the powers of the Admiralty. Past pro- ('t'0(liii;;s con- tiriiiod. rrotcction of olliccrs. Jurisilii'tion of ViiX' Admiralty Courts. .Tiirisdii^linn of \ ir Adiuinilly Oiurt«. .\'. tiling' to re- 250 Arrr.NDix. strict cxisliiif,' jurisilictioiis. As to matters aiMKin;; lievoiul limits (if loldiiy. Ilcr Majesty l;llllMJWnn;il to estivbllsli and alter rules iiml tablcsi of fees. Rules and tililesof foes to lie l;iiil lieforo tlic; lli.iise of Coninions. To be entered ill tbe records of tliu Courts. To be bung u]i in Court, &c. Kstiiblislied fees lo be llio only fees taken. T.ixatioM may bt! reviseil by tbi; Hi^'li Court of Adiiiiraity. Ri tiNtr.ir may jidiuiiiihicr oatiiH. or rostiiet tlio jiirisdiotinn confoiTed upon any Vice Ailiuiralty Cowrt liy any Act of I'lirliann'nt in ivspcct of Koi/urcs for liveach of llie revonue, custoina, tnuK', or mivii^'ation law^^, or (d' tlie laws rcdatinj; to till' aliidilioii of llii' .-liivi' tiaiic, or to llic (m|iIiui' and dcstriictiou of pu-atcs and iiiratical vcss( Is, or any other juris liction now law- fully exerci.^ud liy any such Court ; or any jurisdiclion now lawfully exercised liy any other Court within Her Jfajesty's dominions. i;5. '['he Jurisdiclion of the Vice Admiralty Courts, excejit where it is expressly confined l>y lliis Act to nnvtters arisinj,' within the jiosscssion in which the C(Uirt ia estahlished, may he exerciscjd, whether the cause or ri,i,dit of action has arisen within or beyond the liuiits of such possession. 14. Iler Majesty may, l>y Order in Council, from time to time estalilish rules touching the practice to he observed in the Vice Admiralty Courts, as also tables of the fees to be taken by the olficeis and practitioners thereof for all acts to be done therein, and may reiieal and alter tlie existinj,' and all future rules and tables of fees, and establish new rules and tables of fees in addition thereto, or in lieu thereof. 15. X copy of any rules or tables of fees which may at any time be established shall be laid before the House of Commons within three months from the establishin;,' thereof, or if Parliament shall not be then sittini,', or if the session shall tirminatc within one month from that date, then within one month after the commence- ment of th.e next session. Hi. The rules and tables of fees in force in any Vice Admiralty Court shall, as soon as possible after they have Iwen received in the liritish possession in which the Court is established, l)e entered by the registrar in the public books or records fif the Court, and the books or records in which they are so entered shall at all rcasomiblc times be open to the inspection of the ])ractitioner8 and suitors in the Court. 17. A copy of the rules and tallies of fees in force in any Vice Admiralty Court shall be kept constantly hung n\\ in some con- spicuous place as well in the Court, as in tlie otlice of the registrar. !8. The fees established for any Vice Asigned to them : that is to .say, "Judge" siiall mean the person lawfully ajipointed by the Ad- miralty to be Judge of any Vice A.lmiralty Court, or, in default of such appointment, tlie chief justice or principal judicial oliicer, or the person lor the time being lawfully authorised to act as the chief justice or principal judicial oliicer in the IJritisli pos.sessiou in which such Court is established : "Judicial Towers" shall mean all powers .and authoiities whieh may be lawfully exerci.sed by, and all duties by law imposed upon, any such ju.lge in the trial, hearing, or progress of any cause : " JFini.sterial Powers" shall mean all powers and authorities which may be lawfully exercised by, and all duties by law imposed upon, any .such judge, not included under the term "Judici.d Towers : " " Sit " or " Sitting " shall mean sit or sitting for the exercise of judicial powers, whether in (Jourt or in Cliamber.s. 4. On the governor of any IJriiish pos.session, who is also vice- admiral there.,f, vacating the oilicc of governor of such po.sse.ssion, the oliice of vice-a.lmiral of the same possession shall thereupon be deemed to be also vacant within the meaning of the third .section of the Vice Admiralty Courts Act, 18(13. r.. 'i'he judge of any Vice Admiralty Court may from lime to tmie, with the aj)proval in writing of the governor of the British p(,s- session in which the Court is established, appoint one or more deiaity Judge or judges to a,^,si.-,l or lepresent liim in the execution of his iiidieial powers. (■>. It shall be lawful for any such deputy judge to exercise .all the Judicial powersof the judge; an.) all acts done by such deputy judge H 2 Sliort title. 2(5 & 27 Vi,t. c. 21, apiilied. Interpretation of tcriiis. Tenuro of unico of vice'!t|i<>iiit (te]Mity jiul}{t'!i. Jixliciidpowtii's of clt'iiiily 200 APPKNniX. Dt'imly jihI,l;c.s limy sit scpa- rutcly. •Iiiil^c" iii;iy sit with (li'imty jllllgCH. .T\iilgi^ to roKii- l.ito tlio in'o- cccdiiigs. Tciimo (>' olFieo 111' ili'imty jiulgos. .Tiii1,l;o may iloli'jiuti' iiiiiiis- tci i:il jiowoi's. .Iiiil-'o iiiiiy :i|ipiiiiit ik'iHity ri'u'istr.ivs ami m.irslials. A>liiiii:ilty iiwiy rfivcikoiipiinint- lUUIltH, DfipiiticH to rt'<'<'ivc fi.'cs. nnni-tcrs :uhl Miiii-itoiH ( iilitlril til |ii-.i. li-i' ill Viei! AilmiiMlty C'uuit>;. sliiiU lie as VJiIi.l jind cH'cctnal, I" all intuits niitl i.iirpuses, ns if tiny hail lioi'U diiiM' liy t!io jiid-i- ; ninl all (ir.kTs ur (UtH'US niatU^ by kucIi deputy juil;,'f sliall lie Miliject t(i the same right ui appeal in all rc- sincts UH if till y hail In iii inaih- hy the jud^'e. 7. Any ik-puty juilt^e may ^il at tlii; piimiiial .si a of pivcriimeiit or elsewhere iu the possession at the same time that the jml^e or any other ilepnty Ju.ti^e is sittill^.^ ami either at the sann- or at any other jilace ill such pi>^>ission, ami whether tiie judge is or is not at that lime williin the [lossesaion. 8. The judge may, if he thinks fit, rcqiiire any such deputy judge or judges to sit with him in the same ("iiurt, and in sueh case the deiir-ion of the niMJi.rity, or, if they are o(iually divided in opinion, tliL deeisiiin of the judg shall he the decision of the Court; and such ihrisien shall he suliject to the same right of aiipeal in all re- spects as if it had Vieen made by the judge alone. 9. 'I'he judge may direit at what jdace and time any such deputy judge shall sit, and what causes shall he heard before him, and gene- rally make such ariangenients as to him shall seem proper as to thu division and despatch of the business of the Court. 10. The judge may, if he thinks lit, with the approval in writing of the governor, at any time revoke the appiiii;tnient of any such deputy judge or judges, but the appointment shall not be determined by the occurrence of a vacancy in the ollice of the judge. 11. The judge may, if he thinks lit, from time to time delegiitc all or any of his ministerial powers to any .'?uch deputy judge or judges. 12. The judge m.iy from time to time, if he thinks lit, appoint any competent persuns to act respectively as deiiuty registrars and deputy marsiials of the Court, and may, if he thinks til, at any time revoke any such appuintment, but the appointment .shall not be de- termined l>y the iiccurreiicit of a vacancy in the ollice of the judge. 13. Ni.twilhstanding anytliiug contained in this Act, it shall be lawful for the Admiralty, if they think fit, at any time to revoke the apiuiiiitment of any deputy judge, deputy registrar, or deputy mar- shal appointed under this Act. 1-1. Any deputy judge, dejiuty registrar, oi deputy marshal, aiipoinied under this Act, shall be entitled to the same fees in respect of any duty [lerfornnd by him as would be lawfully payable to the judge, registrar, or nwu-hal lespectivcly for the performance of the same duty. 15. All persons enlitled to practise as advocates, barristera-at-law, ]iriictiiis, alti-rneys-at-law, or solicitors in the superior Courts of a r.ritish pussessMU, shall be entilied to practise in ilie same respective capacities in :he Vice Admiralty Court or Cnuits of such possc.ssinn, and -iiall h.ive therein all the rights and priviUges respectively belonging to ailvmales, li.uiisters-at-law, proctors, attorneys-at-law, Al'I'ENDIX. 261 l:iUvi; jiowurs. an.1 solicitors, a.hl sliall in like maiinor bo s.ibjert fo the aulliority ol ti.e iHTsoM for li,e tinu- Wnv^ lawfully i-xcrd.ing th. ollice of ju(lj,'u of siU'h Court. Ki. It shall he lawful for Her Majesty to empower the Ailniiraltv, H,tM,Hv hy coinuussioii uii.ler the Great Seal, to estal.li.sli cjuo or more \'iee '"av^.t/iMi^iui Admiralty Courts in any British possession, notwithstandin" that ^''^^^ '\''"'''''>ty «u.'h possession may have previously aciuir.,! indei.emleul l^Kisla- ^ZlZu live powers; and the jurisdiction and authority of all the existiu" I' 'vin- It-is- Viee Admiralty Courts are herehy .leclared to he conlirmed, to all intents and purposes, notwithstanding that the possession in 'which any such Court has heen estahlished may at the lime of its establish- ment have heen in i)osse»sion of legisl.itive jiowers. 17. The Vice Admiralty Courts Act, 18(J3, shall, to^elher will, k,,,.,,,,,,, „ this Act, apply to any Vic.; A.lniiralty Court now eslablishe.l or Hif Straits hereafter to he estahlished in the Straits Setllrnienls. SoUleniiMiis. IH. The limitation of the time allowed f.r appeals contained in 2(5 & "7 Vi.t the twenty-third section of the Vice Admiralty Courts Act, 18113, c -'t. s. -J-!, shall be lield to apply to all decrees or orders" pr.iiiouiicid in any '^'^"■'"''•'' l" Vice AdmirallylVnirt now established or hereafter to be estahlished vi':'S,!MZlty (.'oiirts in bi'liiin llll.SNUSsif Ireland for tliu time heing : " Local Court" shall mean and include the Court of the IJecorder of the borough of Cork, the Court of the Kccorder of the borough of Belfast, and the Court of any other Recorder, or of any cliairman of t^iarter Sessions in Ireland, to whom jurisdiction in Admiralty cases shall be given by virtue of tliis Act. 3. Except with respect to the appointment of ollicers, in which respect this Act shall lake ellect iVom its passing, this Act shall take ellect from and immediately afti^r the sicond day of November, one thousand eight hundred and sixty-seven (which time is in this Act referred to as the commencement of this Act). 4. From and after tlie commencement of this Act, the first, second, and third sections of the Act passed by the Parliament of Ireland of the twenty-third and twenty-fourth years of the reign of King Creor'e the Third, chapter fourteen, and so much of the tirst section of the A't of the second and third years of the reign of King William the Fourth, ciapter one hundred and sixteen, as relates to the .alary of the judge of the Admirally Court in Ireland, and the fourteenth section of "The I'rol.ates and Letters of Administration Act (Ireland;, 1857," shall be and the same are respectively hereby r ealed. 5. From and afl.r the commencement of this Act, the present jud-e re"i-trar (if anv), marshal, and seal keeper of the High . C,,mt of Admiralty of Ireland shall cease to hold their respective olhces. Paii.|. I._CornT and Ori'KKits. (i There '■hall be ..ne ju.lge of the High Court cf A.lmiralty of onTi.'"Srr"of Ircdand. and one registrar, who shall alsr, act as seal keeper and C'lirtr -fcretary of the judge, anrl one mar lial of the said f nurt. Commence- menl of Act. Perls. 1, 0, and :i, of '2:t k 2 1 (J. 3, c. 1 ». (irisli), .ami so Miiiili III' scot. 1 of •> & a W. 4. c. 110, as relates to tlio Hid.iiy of tlic jinL'C of the Adiiiindty Court of Ireland, am! Met. 1-1 of 'JO k ■>} \'wt. c. 7'.l, rei>calc(l Cesser of otGccs. AITRNDIX. 263 7. Tt shall be lawful fur Ilcr IVrajosty, lior IicIm ami Hiiccpsfors, from timu to tiiiio, by luttuia jtak'nt iiiulcr tin; ^'ivat seal of livl.iiiil, to aiipoiiit a person, beiji},' or having,' been an advocate of tlie Court of A(buir;ilty of Ireland, or a barrister-at-iaw of not lens than fifteen years' .landing, to lie such jutlj,'e ; and liie said judj^e shall hold hi,s ollice iluring good behaviour, but may be removed by Her Majesty, her heirs or sueeessors, on an address of both Houses of Parliament; and the s^dd judge sliaii have full iiowcr and autliority to hear and determine all manner of civil, maritin*. .-ul other causes to the Juri-diition of the said Court now belonging, and sliall also have sueh jurisdiction as is hereiuafler by this Act given to the said Court of Ailmiralty. 8. Kvery judge of the Court of Adndralty shall, before exirutiiig any (jf the duties of his ollice, lake the following oath, which the Lor.l Chancellor or the Master of the Rolls lor the time being is hereby respectively authori/!ed and required to administer : ' T A. /)'. do solemnly and sincerely promise and swear, that I will 'duly and faillilully, and to the best of my skill and jiower, ' execute the ollice of judge of the High Court of Adndralty of ' Ireland, 'So help me GOD.' 0. No judge appointed under this Act shall during his con- tinuance in such othce be capable of being elected or sitting as a meudicr of the House of '.,'ommons, nor shall he during such period jiraclise as an advocate or banister-atdaw. 10. The Lord Lieuteiuint or other chief governor or governors of Ireland nuiy from time to time, by warrant under his hand, apiKiint a (it person, being an advocate, barrister-at-hiw, proctor, attorney, or solicitor of ten years' standing, to be the registrar of said Court, and al-^o one other fit person to be the marshal of saiil Court ; and the persons so appointed shall hold their respective otiices by the same tenure as ollicers serving in an established capacity in the permanent Civil Service of the Slate, but shall be removable- by the order of the Lord Cluiiuiellor, al the instance of tiie judge of the said Court of Admiralty, for suine reasonable cause to be c.\]iressed in the said order. 11. The registrar of the said Court of Admiralty shall attend the he uing by the Court of Appeal in Chancery of all ai)peals preferred then to by virtue of this Act, and (subject to any order of the said Couit of Ajipeal in Chancery) shall transact and do all .such acts and things as have heretofore been done by the registrar of appeals and provocations spiritual in the Higli Court of Delegates in Irel.md in cases of appeal to that Court from the said Court of Ailmirdly. 12. From ami after the commencement of this Act, the registrar and all other olliccrs of the said Court of Admiralty shall perl'orju Appointment of judjo. Jnl;;(! before .'ictiiig t" tako till' following oatli. .fudge not to sit in rarlia- ment or practise int rcf;i.slrai' and marshal. Kni;istrar to iittctiil the Court ractise therein, or jiarticiijale in the fees of any other ]ierson so praclising. 14. It .sliall be lawful for the judge of the siid Court of Admiralty, with the approval of the commis.siimeis of Her Majesty's Tieasiirv, to appoint a chief clerk to as4st in the duties of the registrar's ollice, and .such other elerk or clerks as may be nece.s.sary for the business of the said Coiirl, and sueli chief clerk, clerk or clerks, shall hold their respective olliees by tlie same tenure as ollicera serving in an cstablishud capacity in the permanent Civil Service of the JState, but .shall be removable by the order of the judge of the said Court, with the concurri'iice id' the Lord Chancellor, for .some reasonable cause to be stated i'.i the. aaid order. 15. It .shall bi 1 ;v. vA for the jiulge of the said Court of .Vdmiralty from time to tin. ;• vopoint a crier and ' j-statfto be attehed to the said Court, avul, ••.it!' the ap|iroval of the commissioners of Her Majesty's Trc.tS!;i'-. v. .h servants as may be reipiired for the .said Court; and such ciur, tipstalf. and servants shall hold their respec- tive olllces and situations during the pleasure of the said judge. l(i. Tlu' salaries of the jmlge and ollieers of the said Court of Admiralty shall be as follows ; namely,— Of the judge, twelve hundred poumls a year ; Of the registrar, live hundred pounds a year ; Of the marshal, four hundred pounds a year; besides such travelling and other expenses neces.sarily incurred in the e.xecution of his duty as the jiiihje, with tl|o. iqioroyal of the commissioners of Her Majesty's Treasury, .shall allow. Of the chief clerk in the regi.strar's ollice and the clerks of the sairl Court, and of the crier, tipstaff, and servants of maXSli APPEXniX. the- mU\ Cu.nt. «iicl. sala.iea ri.«i.cctiv.Iy as tl.o j,,,!.'. with t...- consu.it ul the con.mi.sMio.iei* of Ikr iMajf.sty'a Tmistiry snail a|HKiiii( •'' Umt, I Kn.y.lo,n, n.ay «,„.. u„,o any ,.erHun executing- the o.Hce o( juage H. iM„.uancc of thi. Act an a i,y ..ot excn^li... ei -ht .uaared pou.uls. to co.u.nen.o im.u.liat.ly Ift, ,he peri... M; .•person t.j whon. such a., .ity ^hall he grante.l shall reaij natuml hie of the porsm to whom the same shall bo gmnt..! • provKled that U sh.ll 1. hu,f.„ ,,r n.r Maj.sty, in an-I by u h l.ttern patent, t„ l„nit the duration of paynu.Jt of . such anm.itv any part thereof to the periods of tin.e durh., ,he natural lif. L person ,„ winch he shall .-ot exercise any ollice of profit under lie Majesty, so that s...h annuity, togeth.T wi.h the siiary an-l proms of such other olhce shall not exceed in the wh..le th'sai.l m-, , f UKht hun„,,,l poun.ls; provM,,! also, that no annuity .-ran any person hav, UK executed the ollice of ju.lgo un.ler t'hi.s Act b. valul, unless such person shall have continue,! in the said , or m such ..Ihce and in the .,lilee of jud.e of the present ( u "i; r m" ""■?'"" "' '*^ ""'^^'' ^^'"^'' «'"'" be'distincti; I Ilea in tJie said j^rant. -^ 18. In case the presc..,, .judge of the Curt of Admiralty be not appointed o the ol.icc of ,,.„|,e of the said Court un.ler this A , I .^1-11 bu eiUU ed to receive by way of compensation .luring h,s i^! ^ -muty eciual to his salary at the cnuneucoment of thi^ Act u ..ehaimuity shall ,. .dia.^.M on au.l payable out ,.f theCoit id t K. dot the Unted Kingdom; and in case any other person vlo shall cease by the provisions of this Act to hol.i a'.y ..,li..\ "a thm Act, t shall be lawful for tiic commissioners of ll.r Majest ys I reasury to grant to su.h person such special annual all.^wance m. i, la Any oheer „t the sai.l Court of Admiraitv who shall resLm ns (hoc shall be enti.le.l to re,.eive such superannuation allowa.^c 1 r?r"""T"""' "' "."• '''•*^'^'^-'^ Tr..asury shall think pro to .hrcct; and m ascertaining an.l awarding th. anu.unt o sid^ snperannuation allowance the sai.l c.uumissFoners shal tak ito JonsKleratum the whole peri„d .luring which any sn^ o.^lj" , hav-c been permanently cn.ploye.l in the sai.l ol'lic.. r in'any .ither pu 1.0 oilice, au,l shall pn.cee.l acconU.g to the primiph. S ''^ by " IheSui.erannuation Act, kso!)." ■20. The s,dary of the judge of the said Court of Admiralty, and 265 Cniiipcnsition t" jiiil;,'.', and any ollicur of la-es.'nt Court f'f A.lniiralty iiiitro:ip|jiii,iteil lunlur tills Act. Power tn judge to apii.iint siipt'iannuation of otlifcns. Salary of jiiil|;'e an.l compcn^a- 200 ArricNDix. APPENniX. linns to 111) (•li;ll';4i''l nil Ciitisiiliilali'l Fiinil ; nllior ti.iliirioH, iVc, cmt of iiionic's tn III' |llilviillM| liy I'.iiliiiiiiriil. rmirl t(i lio ft C.lllt of Uocord. rrotectioii of tlio jiiilfiu i)i Ciiiirt 111' Atliiiinilly. Fdwcr to tho jllil^'O tl) ii|i|iiiiiit a BUii'uyatu. I'luvci' to judyo to a|i|i lint " ilci-k ill Court." B.irriKtcrs-;it- law, attorneys ;it-law, iind any ri'liriiii,' annuity Rrniiti-.l to a jiuli;.' of tho said rmtrt nntlor tliii Ai'l.Hhiill 1.1! cli:u>;"id mi iiii.l iiavaLli- tuil of tlic I'lUHntiiltilcil Kun.l (iftlu! I'liiti'l Ivin-iliini ; iiml I'l' salinif^ of nil iillia'i-H or sirv.mts of the siii.l 1.. lilt, mill niiv siiiMiMiimiiilinu iillowiviuv which iimy ho t^rautotl to any such oIliciT «v s'lvant umlcr Ihi.-i Act, .•'liall hf jiaiil out of sudi funils as I'urliaiaL'ul nhall from time to timu i.rovidc for that jiuriiosf. 21. The Court of Atlmirally shall bo a Court of lUconl for all intents and jmiimsrs. 22. No action Hlinll lio against the jml^'o of the said Court of Ailiiiirally for error in .iud;.,'meut, and the jud^e shall he iiitilhd to and have all the luivile^'es and jimtictiou in tlie exeirise of hia juii-idiction an ,iudi,'e of the said Court which l.y law appertain to the iudi,'eH of ller Majesty's Supnitir Courts nf Common Law in the exercise of their several jurisdiclimis. •23. Tlie jud^'o of tho said Court of Admiralty shall he entitled, as heretofore, to aiipoiiit, witli the consent of th.; i-md Chaii''ellor of heland, a suiro^ate, hein.; an ailvocate or barrister of not less tliaii ten years' slandinj,', who, in case of the illnessor ahseiice of the jud;;e, or in any cause in which the jud-e, his wife or chi!in>ent of the commissioners of Her Majesty's Treasurv, from time to time ti appoint a compiteiit writer of short- hand to" attend the (-'ourl lor the purpose uf taking- down and tran- scriliinf,' all such evidence, statements, and matters as the jud^'o shall direct ; and any person so apiminted shall hold ollice duriuj,' the pleasure of the said jud-e, and siiall he paid such aiimial salary as tho couimissiouersof Her Majesty's Treasury, on the recoininemlalion of the jud-e, shall ai.pnint ; and there sliall he char;^e. All liavristiis-at-law, and .all attorneys-atdaw and solicitors, (shall, from and after the liiuewlieii this Act shall come into operation, be entitled to pracli-e as barristers, attorneys, and soliutors respec- tively in all matters and causes whatsot Admiralty ; and the said barristers-at-lav exercise the same rights and jirivih'ges Court of Admiralty as advocates now lia Court ; and tlie said attorney.H and solicito exercise the same rights and privileges Court of Admiralty, as proctors now Iin Court ; and the said advocates anil hn respectively the same rank and precede vdniiralty which they now have in the St Law, unless and until Her Majesty shall o always, that all atlorneys-at-law and su Court of Admiralty shall he subject to the the like manner as attorneys of tho (.^iieeii authority of that Court : I'rovided also, t (leueial ill the Court of Admiralty for the n tain the same rights, rank, and preceden has therein by virtue of his said ollice. 2(!. Whereas William Uussell Kelly hi ])roctor of the said Court of AdmiraUy, i Chambers liamerton, Henry Albert Lee, been duly articled as apprentices to proc Admiralty : It is hereby enacted, that t Kelly may, within six months from tiio (ijieration, and that each of them the si Chambers liamerton, Henry Albert Lee .shall complete tho full term of service for as such apprentice, may, within six nnntli without any further ajiprenticeship, and w stamp duty, fee, charge, or gratuity whatsi High Court of Chancery in Ireland ; and i ollicial certificate of his being admitted ori a proctor of tho said Court of Admiralty, of solicitors of the said Court of L'hancei this clause above named shall respectively a snlicitor of that Court, and to be all admitted and enrolled as an attorney ol Courts of Law in Ireland. Paut II, — JfUISntCTFON Of 27. Subject to the provisions of " Tho 18.".}," and "The Merchant Hhijiping An Court of Admiralty shall have jurisdiction whatsoever relating to .salvage, and to enf wliethcr the service in lespect of which APPENniX. 207 I all matters ami caur'os wliatsoevor in tlic mu\ Court of ly ; (iinl tho mad liiini^tfrsiU-hiw nlmll nml may liaVL- ainl tlic wiiiu! rij^lits and jirivili'j,'i.'H of jiractisiiii^ in tlif saM Ailmiralty im ailvocatua miw have ainl enjoy in tUe wiiil md till! said attonnys and stolicitorn i^hall ainl may have and the sami! n),'htn and jirivili'ytM of iMactining in the said Admiralty, as proctors now have and injoy in the said and the waid advocates and harri-ters-at-law Hhall have ely the same rank and i)re(cdriue in the said Court of ty which they now have in the Su|)erior Coiirtg of Connnou less and until Her Majesty shall otherwise order : Provided that all utloniey»-at-law and solicitors practising in the Admiralty shall he subject to the authority of the Judge in maniuT as attorneys of the (Queen's J5ench are subject to the f of that Court ; I'rovided also, that the Queen's Advocate in the Court of Admiralty for the time being shall Iiave and e same rights, rank, and precedence in that Court as ho now •in by virtue of his said ollice. 'hereas William Uussell Kelly has been lately admitted a if the said Court of Admiralty, and Charles Taylor, John •s llamerton, Henry AlUrt Lee, and John Mallins have ly articled as a})prentices to proctors of the said Court of ty : It is hereby enacted, that the said William Ku>sell ay, within six mouths from the coming of this Act into 1, and that each of them the said Charles Taylor, John •8 Hamerton, Henry Albert Lie, and John Mallins, who iplete the full term of service for which he lias been bound ipprentice, may, within six months thereafter, be admitted, any furtlier ajtprenticeship, and without the payment of any ily, fee, charge, or gratuity wliatsmver, as a solicitor of the urt of Chancery in Ireland ; an. Tlio ic-istrav (if the t'ouvt of Adiiiiialty shall have the same liowei's under the fdteentli secticin of "The Merchant Shijiimit; A' t, IS'>4," as are l.y the wiid scftion conferred on tiie iiiasteis of Her Majesty's (,'ouit if Queen's Bench in ]:n<,'land and Ireland. 4(!. The registrar of the said Conrt of Adiulralty shall have piiwir to adniini-tor oaths in relation to any cause or matter de- lirndin.uin the said 'Jonrt, and shall have also siuh other iiowers as may he given him for the discharge of his fiinttioiis as registrar by any rule, (n[ mouth uiion oatli, whidi ovory sndi examiner is horehy cniiiowcivd to a.hniiii.stLT, at wch time or tiuiea, phice or places, an,l as to sucli fact or facts, an.l in such nuinner, or.lur, and course, and under such Imntatioiis and n.stri.tion.s, iuis-examincd, and re-examimd, by the jiaities, their counsel, solicitors, attorneys, or agents, if such parties or either of them shall think fit so to do ; and such examiner shall, if need be, make a special report to the Court touching such exami- n.ition, and the conduct or absence of any witness or other jiersou thereon or relating thereto ; and the said Court of Admiralty is hereby authorized to 1:! .itute such procee.lings and make such order or or.lers ui.on such repo/t as Justice may re(iuire,and as may be in- stituted or made in any ci.sc of contempt of the said Court. 52. It shall be lawful in any suit depending in the said Court of Admiralty for the judge or for any such examiner appointed in pur- suance of this Act to re(iuire the attendance of any witness, and the production of any deeds, evidences, books, or writings, by writ to be issued by such judge or examiner in such form as shall be directe.l by the general orders to be made under this Act, or as nearly thereto as maybe, and every person dis.d.eying any such writ so to be issued by the said judge or examiner shall be considered as in contempt of the said Court of Adnuralty, and may be punished for such contemi.t in the said Court. 53. The judge of the Court of Admiralty may, and he is hereby empowered, from time to time, and as and when he may think lit, to appoint any person practising as a solicitor, attorney, or notary public in any part of Itv'nul.to administer oaths, and take declara- tions, RHirmations, and attestations in or relating to any matter, suit, or jiroceediiig in the Court of Admiralty ; and sucli persons shall be styled "Commissioners to administer oaths in Admiralty," and shall be entitled to charge and take a fee of one shilling an'd six -nee for every oath administered by them, and for every de- claration, allirmation, and attestation taken by them, subject to any order of the judge of the said Court varying or annulling the same. 54. The flat or document by which any such commissioner shall be appointed shall bear a stamp of one pound, and it shall not be necessary that any .such appointment shall be published in the Dublin Gazette. 55. It shall not be necessary to sue out any commi.ssion to take the personal answer of any party in any cause in the Court of Admiralty ; and any such answer may be filed without any further or other formality than is required in the swearing and lilin;.. of ,nn aliiilavit. 271 voce Iioforc 11 cdiiiiiiissioaer. AttciK'.inco of witiiL'. ,os iiiiit ]ii-(i'lii.-tii]ii of liooks, Sic.., may In; cmii- pellcil liy siil>l)a'u;i. Judaic of Ailiiiiralty ni.iy .'ipiJiiint .solii'itors. Sin., t'l ailiiiinistcr oatlis, &c. CommiKsinncr's apiioii.tini;iit to Ijt'ur :i ::(uii|> iif one iJ.Miiid. I'or-nMal answers imy t'C taken with- out a norniiiio- sidti. 272 AITI'.NDIX. AllMWOrH, :illiil:ivitn, f:t;., liim 111 lio sworn and takun in Ii'uluail. AnsHci's. allliluvits, A I lliiw tn In; HWdi'ii :Uhl taken fnit of I.rlan.l. I'cndtio.s for false swuarin;: Pc^nalty for f"l-f,'i"n' si;,'nalnrn or seal of jndgc, 1^1!., cniijow- orcil to administer oaths nndnr this Act. r»(i. All :iiiJ2. The costs of such issues as the judge shall under this Act duvet shall be paid by such ])arty or parties, person or persons, and be taxed by the registrar of the said Court of Admiralty in such iminner as the said judge shall direct, and ]>ayment of such costs sliall be enforced in the same manner as costs between party and party may be enforced in other proceedings in the said Court. (i3. The said Court of Admiralty, upon application to be made within three calendar months after the trial of any such issue, hv any party concerned, may grant and direct one or more new trials o> any such issue, and may order such new trial to take place in the manner hereinbefoie directed with regard to the first trial of such issue, and may, by order of the same Court, direct such costs to bo pai.l as to the said Court shall seem fit, upon any application for a new trial or upon any new trial or secon.l or other new trial, and may direct ])y whom, and to whom, and at what times and in what luanniT such costs shall be paid. 04. The granting or refusing to grant an issue or a new trial of any such issue may be matter of appeal to the Court of Aiipeal in ( lianieiy in Ireland. (i.-). The record of each such issue and of the verdict therein shall lie transndtted by the proper officer to the registrar of the said Court cf A.lmiralty; and the verdict of the jury upon any such issue (ludess the same shall be set aside) shall b<. cnnclusive i-.pon the -ai Law pofl8ea«e. If any person takes proceedings in the High Court of Admi- Costs of rally which he might (without agreement) have taken in a local l'i'"i'i'lliigH in Court, he shall not be entitled to receive costs in the High Court of V",'"'^ "( Adniiralty in any event, unless the ju.lge shall otherwise direct, and ^'"""''''^• shall be liable to be condemned in costs, if the juilge shall so think lit. 80. In an A.lmiralty cause in a local Court the Judge of such Powers and Court shall (in addition to his other powers and authorities) have all •'""""■''i''-* "f the like powers ami authorities as the judge of 'Jie Ili'di Court or J'"'*-'™ "' '""'' Admiralty. " ^ ^""^♦«- 81. The marshal of the Court of Admiralty shall be deeme.l an Marshal, kc, ollicer of all and every the local ( 'ourts in Admiralty causes pending '" act for in any of those Courts ; and it shall be lawful for the commissioners """•' ^""''''*' of Her Majesty's Treasury, if they shall think lit, on the application of the judge, to awar.l to the said marshal, by way of renmneratiou for the duties by this section imposed ui>on liini,sucli annual orolher sum as they shall deem reasonable, and such sum shall be paid out of the funds which Pailiament shall jtrovide for that puriiose. 82. A scale of costs and charges in Adniiralty causes in the local Scaln of posts Courts shall be jtrescribeil by general orders. in local Courts. 83. For the execution of any decree or order of a local Court in an Execution of Admiralty cause the Court may order, and the clerk of the peace on ''«^'««. ic. such order may issue, ami any officer of the said Court may execute, any writ or warrant of arrest, possession, or execution, or other jnocess. 84. J V . - ■ ;1I be lawful for the lord lieutenant or other chief governor or gov(. .ors of Ireland in council, from time to time, by order in ff^Sar'"* council, made at any time after the psissing of this Act. to declare ^"'"'^^ of that the recorder of any borough Court, or the chairman of anv ''""•'''■''" . * "'v sessions for II' ^IH If ili mm 278 Al'PKNDIX. Ailniimliy jiu'iMliction. Rrninnomtion til ITllM- k'l-s of Turk am) rrovinidn fur miiiiiuTiilioi' (if iillier rti'tiiili'iH und chuii'iiiuii. Court of any cf'ore (ipet'ifiwi, Hlmll Imvi' juriKilicticiii in Ailniir.ilty iwinis, which recoi.li-r or chair- iiiiui Mhiill imvi' jnriHilictioii m'coriliiif^ly, anil to iwrtij,'ii to eiuh hiicU Court iH it-i (listriit for Adn.irully I'liiix.s iiny i)iut or jKirtH nt' any one 01' more clif:.'. From and after the commencement of this Act, save as to any appeal that shall be then pending, all the Jurisdiction which is now possessed and exercised by the High Court of Delegates in Ireland, or which, but for Die passing of tliis Act, would be possessed and exercised by that Court, in respect of appeals from the said Court of A.lniiralty, and all powers and aiilhm'ities incident to such Jurisdic- tion, now exerciseil and performed by the said High Court of IMe- gales, shall, subject to tile provisions of this Act, be exercised and performed by the said Court of Appeal in Chancery in relation to appeals under this Act. .y.i. The Lord Chancellor and Lord Justice of Appeal in Ireland for the time being may from time to time make, rescind, and vary general ordei's for regulating the form and mode of jirocedure on ai)peals from the Cmirt of Admiralty to the said Court of Appeal in Chaiicerv, and for regulating the costs, fees, and allowances to lie paid or allowed to solicitors or other jiersons respecting such appeals ; and such orders shall take ell'ect at such times as may be therein specified, or in default of such -pecilication from the time of making thereof. 94. The said Court of Appeal in Chancery shall, on the hearing of any appeal I'rom the Court of Admiralty, luive power to call to its assistjince one or more nautical assessors, to be selected by tlie said Court of Appeal; and the advice and opinion of such nautical assessor or assessors may be taken by the said Court in the same manner, upon such questions, and for such objects as tlie advice and opinion of any nautical assessor now is or may be taken hy tlip Judicial Committee of thi! I'rivy Cuuncil in appeals br.aight from the ApfH-,.l to tha Ciiait iif Delcynti'H uIiuUmIiciI. .\li|ieal fe'lvon ti) t'durt of A|>|it';il hi (liiiiiicry tiiiil I'rivy t'caiiK'il, r to g\\e oral testimony, shall he may direct received in evidence ; and lurthei', that sucli deeds, evidences, and ilciiositiona writings shall he i)rodiiced, and tliat such I'acts shall he admitted, as ^J.■^.^\ of the to the said Court of Ajifieal in (,'hancery shall seem lit. issue; 100. The said Court of Ajipeal in L'hancery may make such and nmy nuike the like orders respectinj,' the admission of iiersona, whfther parties such orders as ^, .1-1 • ii i • 1 !• , to admission of or otliers, to he examined as wi -nessea upon tlie trial ot any such g^.iiig,,^.^ ,^s arc issue directed by it as aforesaid, us the Lortl Chancellor or the Court mado by Court of Chancery of Ireland has been used to make respecting the admis- °^ Chancery ; sion of witnesses upon the trial of issues directed by the Lord C'hancellor or the Court of Chancery in Ireland. 101. The said Court of Appeal in Chancery may direct one or and m.ay direct more new trial or trials of any issue, either generally or upon P^^^'""* " " certain points only ; and in case any witness examined at a former trial of the same issue shall have died, or have become incapable to repeat his testimony, the said Court of Appeal in Chancery may direct that parol evitlence of the testimony of such witness shall be received. 102. All the powers and provisions contained in the thirteenth of Powers, &c., of 13 U. 3, c. G3, and George tlie Third, chapter sixty-three, and tirst of William the Fourth, chapter twenty-two, for the examination of witnesses, shall, with i \v.'4^ c. '22, reference to cases of appeal from the said Court of Admiralty, extend as to examina- to ami be exercised by the said Court of Appeal in Chancery, as if n'g^^efextcnded ' that Court had been therein named as one of His Majesty's Courts of to Court of law at Westn er. Appeal in 103. The costs incurred in the prosecution of any appeal preferred 'w^ery. to the said Court of Appeal in Chancery, under the provisions of Pi^^^ji^grotion tliis Act, and of sncli issues as the same Court sliall under this Act of Oourt of direct, shall be paid by such party or parties, person or personb, and Appeal in be taxed by the registrar, or such other person or persons to be ancery. ap])ointed by the same Court, and in such manner as the said Court shall direct. 104. The Court of Appeal in Chancery may require the attendance Attendance of of any witnesses, and the production of any deeds, evidences, or witnesses and .. , . 1 .11.1 -1,, ,. 1 1.1 production of writings, by writ, to be issued by the said Court, in such and the Lpgrs may be same form, or as nearly thereto as ma} bo, as that in which a writ enforced by of subpama ad testificandum or of subpoena duces tecum is now subpoena. issued by Her Majesty's Court of Queen's Bench at Dublin ; and every person disobeying any such writ so to he issued by the said Court of Appeal in Chancery shall be considered as in contempt of the same Court, and shall also be liable to such and the same penalties and consequences as if such writ had issued out of the said Court of Queen's Bench, and may be sued for such penalties in the same Court. lOo. All the provisions contained in the several Acts for the time ipj,g Yr\vj being ill force relating to the appellate jurisdiction of Her Majesty's Council em- 282 jiowercil to (liitcnniiK! appeals luulcr this Act. Hail given in tiic Court of Admiralty good in the (Joint of Ajiiieal. Certified notes of evidence may lie admitted on apiical. Notes of evidence on a)ipoal to Cmu't of Appeal in Chancery to lie ccrtiticd to the I'rivy Council. Appe.ll from an order, &c. , of the Court made on an appeal t^ it. Costs of appeal APrENDIX. rrivy Council in En-lan.l, and thu a.hninistration of justice therein, ^hall -o far as the .same shall be applicalile and consistent with the provisions of this Act, be deemed to extend to aj-peals preteried to Her Majesty in Council by virtue of the provishms oi this Act ; am the proceedings on all such appeals shall, so far as pmclicable, and co.isi.teut with the pn)visions of this Act, be proceeded with m the same manner as appeals from the Hi.^h Court of Admiralty of England. ,.,.,. i -i i loti In any cause in the said Court oi Admiralty bail may he taken'to answer the ju.lMnient as well of the said Court as o the Court of Appeal, an.l the said Court of Admiralty may withhold the release of any property under its arrest until such bail has been -Mven ; and in any appeal from any decree or order of the ( ourt o AdiMiraltv, or of the said Court of Appeal in Chancery in any appeal thereto, preferred by virtue of this .Vet, the Court to winch such appeal shall be brought may make and enforce its ordcT against the surety (,r sureties who may have signed any such ba.lboiid in the same manner as if the bail had been given in the Court of "^'loT^'ln anv appeal preferred by virtue of this Act the notes of evidence taken, as herein-bcfore provided, by or under the direction c,f the jud,e ..f the Court of Admiralty, shall be certiiied by the iudce to the Court to which such appeal is preferred, and shal be adn.itted to prove the oral evidence given in the Court ot Admiralty ; and no evidence shall be admitted on such appeal to contradict the notes of evidence so taken and certified ius aforesaid: 1 rovided alwavs, that nothing herein contained shall enure to prevent t.ie Court of Appeal in Chancery or the Judicial Committee ot the Irivy Council from directing witnesses to be examined and re-examined upon such facts as to the said Court of Appeal in Chancery or the Judicial Committee shall seem tit. . , . . r ,i 108 In any appeal preierred by virtue ot tins Act from the said Court of Appeal in Chancery, the notis of evidence (it any) taken bv or under the direction of that Court shall be certitied by the Lord ChanceUor to the said Judicial Committee of the 1 rivy Council, and no evidence shall be admitted on such appeal to con- tindict the notes of evidence so taken and certilied as las alore- ...id • but nothing herein contained shall enure to prevent the said Judicial C.nimittee from directing witnesses to be exaunued and re-examined upon such facts as to the said Judicial Connnittee shall seem tit. . • • r ^i 10') An appeal shall lie from a decree, order, or decision of the Hi.-h Court of Admiralty made ..r given on appeal from a ocal Court in like cases and in like manner as appeals lie from the High Court'of Admiralty in causes originally instituted therein. 110. Where in an appeal under this Act the appellant is unsuc- APPENDIX. 283 cessful, he shall pay the costs of the Aiipcal, unless the Appellate (.'oiirt sluiU otherwise direct. 111. The time for appealing from any decree or order of the Limit of tiiiio Ci.uirt of Admiralty in any cause instituted after the i)assin'' of this '"^'^ . f (under this Act or otherwise) sliall Vie limited to twt) months Cmiit of !U the date of the decree or order aiijiealed from, and an appeal AJmimlty. h'uaU nut be allowed unless the petition of appeal is lodged in the registry of the Court of Admiralty and the Court of Appeal within that time ; subject to the provision, that it shall be lawful for the Court of Appeal to which such a])peal shall be nuide to allow, under speci^il circumstances, the ap])eal to be prosecuted notwith- slanding that the petition of appeal has not been lodged within that time. Part VI, — Stamps substituted instead of Fees. 112, The Lord Chancellor, with the consent of the Commissioners of Her Majesty's Tri'asury, nuiy by order from time to time increase, diminish, alter, or abolish all or any of the fees payable in relation to proceedings in the Court of Admiralty, and may substitute one or more fee or fees in lieu thereof. 113, From and after the commencement of this Act, no officer of the said Court of Admiralty shall be entitled to or take for his own use or benefit, directly or indirectly, any fee or emolument whatsoever, save the salary to which he shall be entitled Ijy virtue of this Act. 114, From and after the commencement of this Act, the fees jiayable in relation to proceedings in the Court of Admiralty and the local Courts aforesaid shall not be received in money, but shall be collected by means of stamps. 11'). The fees to be collected by means of stamps under this Act shall be deemed stamp duties, and shall be under tlie management of the Commissioners of Inland Revenue, and the money received lor such stamps shall, under the direction of the Commissioners of iler Majesty's Treasury, be carried into and shall form part of the consolidated fund. IK). The stamps to be used under this Act shall be impressed or adhesive, as the Commissioners of Her Majesty's Treasury shall from lime to time direct. 117. The Commissioners of Her Majesty's Treasury, with the con- currence of the judge of the Court of Admiralty, may from time to time make such rules as may seem fit for regulating the use of stami>8 under this Act, and particularly for prescribing the appli- ( ation thereof to documents from time to time in use or recpiired to be used for the purposes of such stamps, and for ensuring the proper c.incfcliation of adhesive stamps. Lord Chan- cellor may, with consent of tlio Troiusury, vary, alter, or abolish fees. From com- mencement of Act, Officers not to receive fees on their own account. From com- mcnconient of Act fees to bo collected by btanijjs. Such fees to be stamp duties. Stamjis to be impressed or adhesive, as the Treiusury shall direct. The Treasury, with concur- rence of judge, may make rules rcgnlat ing the use of Ktamti.s and cancellation of 284 ailhcsivc stain ps. No ilocument to li(! ruci'ivcil 01- useil uiiloss slamiicil. Officers guilty of friiml 01- wilful neglect in iclatitin to stauiiis liuMo to lie dismissed. Corapcnsalion to the regis- trar of the Court of Dele;;ates. Comiicnpation to iiroetors. APPENDIX. 118 No documont which hy any order as aforesaid onpht to have had a stamp impressed thereon or atUxed llierelo shall be reeeived or tiled or he used in reh.tion to any proceedins,' m the Court of AdmiraUv, or he of any validity for any purpose what- soever, unh.ss or uu'til the same sluvU have a sta.op iu.pressed thereon or allixed thereto in the n.anncr directed hy such order: I rovided always, that if at any time it sliall appear that any sucl> documen which onsht to have had a stan.p impressed thereon or athxed tl>ereto has through n.istake or inadvertence heeu received or tiled or used without having,' such stamp impressed thereon or affixed thereto, th- jud,i-e may, if he shall thiuk lit, order that a stamp not exceeding, in value four times the amount of such original stamp, shall he impressed thereon or allixed thereto, and thereupon, when the proper stan.p shall, in compliance with sucli order, have heen impressed on such document or affixed thereto, such documen and every proceeding in reference thereto shall he as valid and effectual as if such stamp had been impressed thereon or alhxed thereto in the first instance. U') If anv officer of the Court of Admiralty or other person shall do or ;ommit or connive at any fraudulent act or practice in ,,Paion to any stamp to he used under the provisions o this Act or to any fee or sum of money to he collected or which ought to be collected hy means of any such stamp, or it any sucli officer o person shall he guilty of any wilful act, neglect, or omi.sion in elation to any such stamp or fee as '-^^'f -"' ' -'-'"f y,''^' f ^ ^.j sum of money which ought to he coUecteu shall ^^ /- ^ Jj pavment thereof evaded, any such oilicer or person so oflend ig may he'dismissed from his office or employment hy the judge ot the said Court of Admiralty. 100 \nd whereas Joseph Hamilton, esquire, the present registrar of Ip'peals and Provocations Spiritual in Ireland will sutt'er loss m his said office by the abolition of appeals from the Court of Admiralty to the High Court of Delegates m Ireland, and the said Joseph llanulton has held his said office h,r upwards o loity- three years: There shall be paid to the said Joseph Hamilton by uav of compensation sucli annuity as the commissioners ot Her A'iiestv's Treasury mav deem just and proper, not exceeding the avera.'^ of the net prolits of his said office from A.lmiralty Appeals onan^tverage for the five years ending thirty-first December one thousand eight hundred and sixty-five, to commence li^im the day when this Act shall come mto operation, and to continue durmg 1 ' 1 'f "1 21 ''whereas the number of persons entitled to practice as proctors of the said Court of Admiralty does not exceed six, and the lees or emoluments of the naid proctors may be damaged by the abolition of the exclusive rights and privileges which they have hitherto enjoyed iMifi APPKNDIX. 285 na such jiroctor.^ in the saiil Court : r>c it enacted, That tlie coni- inissidners of Her Majesty's Treasury, by exaniiiialiun on oath or othervviao, which oath they are hereby authorized to administer, may iiii|uire into, and may, by the production of such evidence as tliey shall think fit to rei|uirc, imludin;^' the rel'.irn-i forliie a>s<\s.sment of income tax made by such jiroct .rs before tlie passiii},' of tlds Act, and the receipts fur paynunt of such tax, ascertain and absoluely deter- mine the net annual anumnt of the imilits arisiuj^' I'rom tlie transaction of business by proctors on nuvtters and causes in such Admiralty Court, on an avera^'e of five years immediately precodiiv^ the commencement of tliis Act, and shall award to each and every such proctor a sum of money or annual payment durin<,' the term (jf his natural life, not exceeding in value one half of the net prolita derived by such proctor in respect of matters aiul causes in tlie said Cdurt of Admiralty, upon the said average iif five years immediately lireceding the commencement of this Act : Provided, that if any- such person shall be at any time appointed to any ollice under this Act, or any other oliice of profit of a like nature, or any other employment as an established civil servant of the State, he shall durinj;; his continuance in any such olHce or employnu-nt be entitled to receive such part only, if any, of the annual sum awarded to him under this clause as shall with the salary and jirolits of such ollice or employment make an annual sum eipial to the annual sum so awarded to him : Provided also, that the portion of the business of the Queen's Proctor which he discharges for Her JIajesty shall not be taken into account in estimating his compensation under this clause. 122. And whereas divers proctors practising in the said Court of Comrensation Admiralty now are or may at the commencement of this Act be *" r'"i""toi's m associated together in jiartnersliip ; Be it therefore enacted, That ^"''^ "^'^^ "^'' iu all such cases the conmiissioners of Her Majesty's Treasuiy shall inciuire into and ascertain the terms or conditicms of s:ich partner- sliips, and shall absolutely determine and award compensation in respect thereof, as herein-before provided, to each of such partner- siiips, in like manner as if all the emoluments thereof had been derived by one individual, and sliall ajiportion such compensation among the memliers of eacli such partnership, with or without benetit of survivorship, regard being had to the existing terms ami coiulitions of the sace. 123. Except as is herein-before expressly provided, the several Rotiririf,' retiring pensions aiul compensations granted liy tliis Act shall be rc"^i"iis, fif., paid bv the commissiuners of Her Majesty's Treasury out of siicli '"^ '" ''."" '" lunds as may be provided by Parliament for that piu'pose. prnvidod liy 124. This Act shall apply to Ireland u'.ly. rarliamcnt. Extent of Act. 28G Al'TOXDIX. Short title of Act. Avvl'^ivti"" of Act. Cfiirinienoe- iiitiit of Act. PcMiilty on enlistiiiciit in service I if forei''!) nUde. G. 3:5 & 3i VICT., Cap. !)0.— [Dili Au;.^iisl, 1.^70.] An Act to rajidalc the co.vluct of Ihr Majr.sh/.-, N»/;/V,7s din-in order that such jierson may accept or agree to accept any commission or engagement in the military or naval service of any foreign state at war with a friendly state : Penalty on I('a\iiit,' Her Majesty's (loiiiininiis with intent to servo a fureiyn state. Penalty on eniliarlIX. Such nmrtfr or owner slmll be j,'uilty d an ofTcncc apainst tliis Act, and tlic fullowiii!,' conmiuonrcs sliiiU ensue ; thai ix to say, (1.) The ollen'.kr slmll be i.unisl'.able by fine and imprisonment, or either of micl. punislm.ents, at llie diseretinn of the Court heiure sviiich tlie ollender is convi.ted ; and unprisonnuMd, if avvanh'd, mav be citiuT ^viUl or without hard hvbour : and, (2 ) Such ship sliall be detained until tlie trial and .onvictnm or a..,,nittal of the master or owner, and until all penallies inllicled on the nuister or ..wner have been paid, or the master or owner has -iven seeurily for the payment ot su, I, iienallies to tlic satisfaelion of two justi.TS ol the pea.e, or ctber ma.udslr.ite or magistrates having the authority ol two justices of the juace : and (3) All illcKally enlisted persons shall imm.'diately on the dis- covery of the olfence bo taken on shore, and shall not he allowed to return to the ship. Penult. V "ii illegal sliip- liiiiliiiiii; ulid ill.-M ' tXlH-MlitidllH. Ilhinl ier of such imuishments, at the discretion of the Couit before which the offender is convicted; and impiisonment, if awarded, may he either with or without hard lal^our AITKNDIX. 289 (2.) The stiip in rospoct of which atiy bucIi ofTonco Is committed, mid 1h;i' eiiiiipiiiLiit, sliuU )io luircitcd to IIlt Majesty : Truvided tlmt a person Imildinj,', enusinj^ to Ik; Imilt, or i'(|iupping a sliip in any of the cases aforesaid, in ]iiir3iiance of a contract made li.'fore tlie cdnnnonccniontof siu'li warns aforesaid, sh.all not be liablu to any of the penalties imposed Ly this section in res[iect of such luiildiiif,' or e(juippiiig if he satisfies the conditions following ; (that is to say,) (1.) If forthwith npon a proclamation of nentrality heing issued hy Her ^^a,iesty he f,'ives notice to the Secretary of State that lie is so hiiildin;,', causinrr to ho Imilt, or e(iuip]iin,i,' such ship, and furnishes siicli particuhirs of the contract and of any matters relatinj,' to, or done, or to he done under the contract as may he rei|uired liy the Secretary of State : (2.) If he gives such security, and takes and permits to he taken such other measures, if any, as the Secretary of State may prescrihe iVn' ensuring that such ship shall not 1* disjiatched, delivered, or removed without the license of Her Majesty until the termination of such war as aforesaid. 5). Where any ship is Imilt hy order of or on liehalf of any foreign state when at war with a friendly state, or is delivered to or to the order of such foreign state, or any person who to the knowledge of the person building is an agent of sucii foieign state, or is paid r.ir by such foreign state or such agent, and is employed in the niili- lary or naval service of such foreign state, sueh ship shall, until the contrary is proved, be deemed to have been built with a view to being so employed, and tlie burden shall lie on the builder of such ship of proving that he did not know tliat the ship was intended to be so eiii])loyed in the iiiililary or naval service of such foreign state. 10. If any person within the dominions of Her Majesty, and with- out the license of Her Majesty, — ]5y adding to the number of the guns, or by changing those on board for other guns, (jr by the addition of any eijuipment for war, increases or augments, or procures to be incroafed or augmented, or is knowingly concerned in inereasing or augmenting the warlike fnn e of any ship which at the time of her being within the dominions of Her Majesty was a ship in the military or naval service of any foreign state at war with any friemlly state, — Su(!h person shall be guilty of an offence against this Act, and shall be ]iunishable by fine and imprisonment, or eiliier of such puuislinients, at the discretion of the Court before wliicli the otlender is convicted ; and imprisonment, if awardid, niav be either with or without hard labour. 11. If any person within tlu' limits of Her Majesty's dominions Old witlumt the license of Her Majesty. — Pieparcs or tits out any naval or military expedition to proceed u Prcsiiriiiition as to oviilfui'e ill case of illfijal ship. Ponalty on aiilinj! the w.ar- likc ei|iii|iriiciit of I'liroigu ships. Penalty on fittiii,!^ out naval or military o.xpe- 2Q0 ilitiiinH without licuuBU. Punishment o! acceuiwriuaf Limitation of term of iiii- pi-isouiuyut. liriiu^'ht into I'.ritish \iuTis |-i»tuiiJil. AVPFNOrX. against tl.c .loTninlons of any fricn.Uy «tato, the following con^e- ^ (1) Every r.T.on engaged in mtch prcrarntion or fitting ont, or ^ ^^ nBsisti.!g therein, or en^plny...! in any e-a,a..ty ,n such oxr.- .H,i„n, .hall U' .i.iltv or an ollonco a^au.sl th.. Ac , ami nhall bo imuishuhle l.y linn an.l in.FiBonn.out, or either of such Vnni. clfcnco a-ainst this Act shall nut exceed two years. Ilhjal Prm. l.t Tf durin- the continuance of any war in which IIct Majesty J^^.. m.u.raCauy ship, goods, or merchandise captured as pmo Har within ti,e territorial jurisdiction of Her Ma,es.y, ,n violat, n the neutrality of this rvahn, or captured by ^^^J :^^^^ ^^^^ have been built, enuipped, comn.i.sioned, or dispatched, or the force of Which may haye been augmented, contrary to the proyisu.ns of «i Act, are'brought within the lin.its of Her Majesty's .lomn.on y the captor, or anv agent of the captur, or by any person hayn.g c^. ill possession thereof with knowledge, that the same was " of wa^ captured as aH^resaid, it shall be ..wtul lor t^lje ...^nud >wner of such prize, or his agent, or for any person authou>ed n that behalf by the Cioyernnu.nt of the foreign ^^'^te to which sud owner belongs, to make application to the Court ot Adnuralty or I'^e and d:teution of such prize, and the Court shall, on due proof of the facts, order su.h prize to bo restored. Eyery such order shall be executed and carried mto elTect in the same manner, and subject to the same rigl.t of append, as m case o any order made in the exercise of the ordinary jurisdiction ot such Court ; and in the meantime and until a tuial order has been made ou such application, the Court shall have power to luake all siidi provisional and other orders as to the care or custody of such cap- ured ^hip, goods, or merchandise, and (if the same be ot per.shabl . lure, ol incurring risl. of deb noration) for the sale thereof .k with respect to the deposit or investment ot the proceeds of anj ch 8.de, as may be made by such 'Jourt in the exercise ot its ordinary ■ iuii.-diction. Al'PKNinX. 991 (Imernl Prwiainn. 15. For the purposes of tlii.i Act, n licc.so by Jler MnjcHty shall Liceiiso by Uer Ix' iiiidiT th(! sfij,'!! immual nf IltT Miijeaty, or bo Bigiuded by Order *'''j''"''y '"'w in Council or by procliiruali(;u of Her Muje.sty. Ijiijill I'fuCnhiro,. Ifi. Any oHfUi^o n^'aiiist tlii.s Act shall, for all piirpos<'» of aii. All proceedings for the condemnation and forfeiture of a ship, or ship and eijnipment, or arms and munitions of war, in pursuance of this Act shall require the s-auction of the Secretary of State u 2 grautc'l. Jurmdictiou ia respoot of oironees l)y liorsuiia aguiust Act. Vomio in rcsjicct of otrciiccs liy Ijcrsoua. 21 & 25 Vict. C. U7. Power to reiiiovo eiri'iiJura fur trial. Jarisdiction in respect (if forfeiture of ships for 20"2 i>fToiiro!< ftgWiiHt A.;t. BcgiilntioiiH M aj;aui -t. tliu oiruiulcr iuul nK'niiiHl tlio niiip. (Iflicrnt ii\itliiirisoil to i^vm' (illfiKliiig sliii>H. rtiwcrs of (iliii'rrs llUillnliMjcl to seize sliil'S. AITENDIX. „r «n.-h cl.i..f ox.cutivc authority an i« in .l.i^ Act "'«•';' i''"';;;;;;'! .iMll 1.. lu.l in llu. Court of A.lu.irally, and n..t u. any otl... ( o ,t ,,., n... Court 01' A.lmir.l.y .h.U. iu ".l-mi- ^--//Xr ,' t to the Court l.y U.i. Act. Imvc in r.sfu.ct oi any M^ "^ ' ', ,,,.,„Utlu.for.. it in i.u,.mnco of tl.i« A.t all P"--;' ' ;;j J'^ i„ ih... , a.o of a Hhip or nuUter In-ounht botorc it m the exercise ^*^;:'w;;"v":;;; oli^o a,ain.t .M. a., l.. b... c..mnutt.l l,y ,,a niunitiouHof war,l.a« or have l.-conu. 'f "^^f * l/'^, ,..-Hn... nuiy le institutcl .•nntonu.oram.uusly or " ■*' "^ '"y ''^. tl.u, l^t lit J'ainnt ti... ollV.uU.r iu any Convi having jun^aidiou ot ,„, „.„„i,i,„H of .ar, for th. fo.leituro .n t.. Court ol ^^^^ ,..., it .hall not W u...x..sary to take ,.ro,...e.l.u«. ««"'";\*1^ _;^'™ l.cau«e proceeain,. arc iuH.itut.l for ^''V'"'" ^ll 1 -^t ul ..c....an,'. for the fo.f.ilure hecause vrooccau.gH are taken at,m.8t olleiulur 21. The lollowiuR officers, that is to fay, (, Anv ollieor of customs in the United 1-"!; 1'""' « 'J". ^ ^'^ ;;ver.lu.lessto any special or Kenend ins, ructions romt e Conuuissioners of Customs or any olhcer of tin 1> u ' Tra.U., sul.j.ct nevertheless to any special or «cne.al instiuc tiuns iVoni Uie lioavd of Tia.le ; (2\ Anv ollieer of custon.sor public ..tlieer m any B it.sh v^>^'' ^■^ Mon, lul^'ct ueverlheless to any speeidor general .ns.ructu.ns fmm the iri,veriiiir of such possession ; (,) ir ln.issioue,lo.lice..ou full pay in the ^-l;'-^--- ^ „f ihe Crosvn, Huhjeet nevertheless to any spee.al oi yeueial insl ructions from his con.n.aiulin- oHicer ; (4 ) Anv eonunissionea officer ou full pay .u the naval . n c ^■^ the Crown, suLjeet nevertheless to any ^l'-'^ ^ ^^'"'^^ instructions iron, the A.hnival.y or Ins ^'F^-'^ ;' -;■ ,„ay sei.e or detain any ship liaUe .o he ->-;^ "^ f ^^ J^ L Buice of this Act, and such olheers are '" ' -^ ;^^ ,^,, ,,,n „r „„, ,.«■»«. ol lla -...!«. ■ y ■^r „„(„,,„„„,„ or dock. AITI'NMX. 208 Sppcial power (if S<'ci-i'tiii> of Statu nr iliiuf UM-MUtivi' or iiKiro of Riich otllccrs to tnke t'hnr^^u of tli(! huiiu', uikI to miforro 'lii^ provisions of tliirt Act, iiiid aiiv clllci'r Mii/iii;^ or (letuiiiin^? any Miii|i iiiitlir this: Alt imiy ii^u force, if ium ot.iry, for tli« inirpoH^ of liiforciiij,' Mci/iu '>r lit'ti^ntion, niid if m ' p^r m in liilifil or iniiiniuil liy ri'iisoii of lii- i.siMtiii^ siieli otlic«r ii. tiu exi'iution of Imm iluticn, or any jU'r'^Mii actinj,? uinN'i' liin orders, such olHrtT so m-iziii;^ of chfiiinin^,' the hIhis nr otlier pcrnoii, Hhail In- freely and fully iiidem- iiiliiil ns* tt.ll ajjaiiist t!ir '^uen'n Majesty, her heirs and MueresHfM'H, as against all | isotis so kilh i, maimed, or hint. 23. If the St'cretury of State or the 'liief exoeiitivo aiifhorif\ is Balistifd that tliera In u reasoiuddu and prohalilc 'uuse for lielievmn tliat II ship witiiia Her ilajcHty's ihiniinions has heeii or is bein;^ liiiilt, coiuuiissioiied, or eipiipped contrary to this Act, and is ahoiit uniliority to til he taken heyond the limits of such doniini'ins, or that a sthip is 'letain Bliip. aliiiut to he (lespatclieil ('(intrary to tliis Act, sucii Secretiuy of Statu or chief executive autliority sjiall have power to issue a warrant statinj? that theie is reasonable and probable cause for iHilievin;,' n» nl'iifesaid, and uiion such warrant the lncal aulhority sliall have power to seize and seuich .■•nch ship, ami to detain the same until it has been either condemned or released by process of law, or in inannei' heicin-afler nu'iitioiied. The owner of the siiip so detained, or his agent, may apply to the Court of Ailmiralty for its release, and the Ciurt shall as soon a-i pdssible put the matter of such seizure and detention in course of trial between the applicant and the Crown. If the applicant establisii to the satisfaction m| -he Court that the ship was not uml is not being built, commissionci , nr ei|uij)pcd, or inlemled to be ilespatchcd contrary to this Act, tin liip shall be released and restored. If the applicant fail to establish to the satisfaction . ' the Court that the ship was not and is not being built, connui -sioued, or eipiipi .;d, or intended to be despatched contrary to thif Act, then the ship shall be detained till released by order of the Secretary of State or chief executive authority. The Court may in cases where no proceedings are pending for its condemnation release any ship detained under this sectii : on the iiwuer giving security to the satisfaction of the Court that the ship shall not be employed contrary to this Act, notwith -tanding . that the ajiplicant may have failed to establish to the satisfii tion of the Court that the ship was not and is not being buii . com- missioned, or intended to be despatched contrary to this Act. The Secretary of State or the chief executive authority may L owis« release any ship detained under this section on the owner 'vinf aecurity to the satisfaction of such Secretary o^" State or chief executive authority that the ship shall not be emjiloyed ontr y to this Act, or may itjieuBo the oliip without »ucli securitv i the 294 Special power of local utliHi-ity to deUiii ship. APPENDIX. Secretary of State or chief executive authority think fit so to release *''lf 'the' Court bo of opinion that there was not reasonable and probable cau.e for the detention, and if no bucIi cause ap^^r m ihe cnur.e of the proc«.ain..'H, tlu. Court slmll hav. power t. d.^lare that th. own.r i. to be i,„U.nn.ili. d by the paynu.nl oi o-.t. and daina-PH in r.spa't of the dcteiiti.a., tl.e amount thereof to bo asse.«ed by the Court, and any amount ho as. ss.d shall be ].ayab o by theConnuUsinners of the Treasury out of any n.ouey.s legally applicable for il>at purpose. The Court of Adnnra Ity sh.ll also have po'ver to n.ahe a like order for the indenuaty ot the owner, on the application of such owner to the Court, in a Humn.ary way in case,, where the ship is released by the order of the Secretary of b ate or the chief executive authority, before any application is made by the owner or his agent to the Court for such release. Kothin- in this section contained shall alfect any proceedings in.titute,l"or to be instituted Ibr the conden.natum f ^J ^^ detained under tliis section wliere sneli ship is liable to lor,wtuic, 8ubje..t to this provisi(m, tl>at if sudi slnp is restored in pursuance of this section all proceedings for sudi condemnatn,n shaU be staved; and where the Court declares that the owner is to l,e ind"emnif.ed by the payment of costs and dan.ages for the detainer all costs, charges, and expenses iucurivd by sucli owner in or abou anv proceedings for the condemnation of such ship shall be added to 'the costs and damages i^yable to luni in respect of the detention '^No'thhlg'in this section contained shall apply Jo any foreign non-commissioned ship despatched from any part of "er Majes > « dominions after having come witlun then, under stress ot wea h r or in the course of a peaceful voyage, and upon whicli s up no fitting out or cpiipping of a warlike character has taken place in ^2rv!hL it is represented to any local authority, as defined by tins Act, and such local authority believes the representation that tl>ere is a reasonable and probable cause tor belaying tha a ship within Her Majesty's dominions has been or is b.Mug bu. t commissioned, or e,uippe.l contrary to this Act, and is about to be ken beyond the limits of such dominions, or tl,at a ship is abou be despatched contrary to this Act, it shall l>e the duty of su.d^ local authority to detain such ship, and forthwith to communicate the fact of such detention to the Secretary of State or chief executive ""upm/ihe receipt of such communication the Secretary of State or chief executive authority may order the ship to be released i he thinks there is no c.nse iVr d,,..n:,.ing her, but it saU.d,ed that there is reasonalde and probable cause for believing that such ship APPENDIX. 295 was built, conimisslonnd, or eriuipped or iiitnndeil to be (lesihitelied in contravention of tliis Act, lie slndl i^ssue lii.s warrant stating tliat tliere is reasonable and probaVile cause for believing as aforesaid, and upon such warrant being issued lurtln'r proieedings shall be liad as in cases where the seizure or detention has taken place on a warrant issued by tho Secretary of State without any coniniunicatiou from the local authority. Where the Secretary of State or chief executive authority orders the ship to be released on the receipt of a coniniunicatiou from the local authority without issuing his warrant, the owner of the ship shall be iudeuinified by the ])aynient of costs and damages in respect of the detention upon application to the Ccnut of Adiuirally in a summary way in like manner as he is entitled to be iiidemniiit:d where the Secretary of State having i.-ued his warrant under this Act releases the ship bifore any application is made by the owner or his agent to the ("ourt for such release. 25. The Secretary of State or the chief executive authority nuiy, by warrant, empower any jieison to i-nter any dockyard or other place within Her Majesty's dominions and in(piire as to tin- dfstinatiou of any ship which may appear to him to be intended to be enii)loyed in tlie naval or military service of any foreign state at war with a friendly state, and to search such ship. 26. Any powers or jurisdiction by this Act given to the Secretary of State may be exercised by him thniughout the dominions of Her Majesty, and such powers and jurisdiction nuiy also be exercised by any of the following officers, in this Act referred to as the chief executive authority, within their respective jurisdictions ; that is to say, (1.) In Ireland by the Lord Lieutenant or other the chief governor or governors of Ireland for the tune being, or tho chief secretary to the Lord Lieutenant : (2.) In Jersey by the Lieutenant Governor : (3.) In Guernsey, Aldernej-, and Sark, and the dependent islands by the Lieutenant Governor : (4.) In the Isle of Man by tho Lieutenant Governor : (").) In any British possession by the Governor. A copy of any warrant issued by a Secretary of State or by any iillicer authorised in pursuance of this Act to issue such warrant in Ireland, ihe Channel Islands, or the Isle of Man shall be laid before Paiiiameut. 27. An appeal may be had from any decision of a Court of Admiralty under tliis Act U, the same tribunal and in the same manner to and in which an apjieal may be had in cases within the ordinary jurisdiction of the coui t as a Court of Admiralty. 28. Subject to the jirovisicjiis of this Act providing for the award of damages lu certuin cases in nspect of the seizure or detention of Power of Socre- titry (if Stato or L'xociitivo nutlioiity to grant search wuri'aut. Exercise of powers (if Secretary of .State or eliief exceutiva authority. Appeal from Court of Athuiralty. Inilemuity to ofiiccrs. irs 29G APPENDIX. Iiiilemnity to S iTotur.v iif State or i-liief cxeciitivo autlnnity. a shi)) liy Iho Court oi Adniivalty no tinmagofl oliall lic payable, ami no oHiciT or local antliovily shall l>i' n-si.oiiisil.le, either civilly or criminally, in respect of the seizure or deteutiou ol' any ship in ])ursuaucc oi' tlii;< Act. ■>i). The Secretary of State shall not, nor shall the chief executive authiirity, be responsible in any action or other le-al procee(linj,'s M-hatsoever for any warrant issue.l by hiiu in pursuance of this Act, or be examinable as a witness, except at his own retiuest, in any court of justice ill respect of the circumstances which led to the issue of the warrant. Intcriirctiitiun of Teiuis. "Fdieis^ii State :" " Militaiy scivico ;" " Naval _ "I'liited Kiiigtlimi ;" "liiitisli pos.sessiou ; "TIio Socrc- tary nf State : •Uovcnioi':" Interpretation Clause. 30. In this Act, if not inconsistent with the context, the following tei'iiis have the ineanings herein-after respectively assigiieil to them ; thai is to say, " Foreign' state " includes any forei^-n prince, colony, province, or part of any jirovince or people, or any person or persons exereisiiii,' or assuming to exercise the powers of government in or over any foreign country, colony, proAince, or part of any province or ]ieopli' : " Military service " shall include military telegraphy and any other empfoyn.ent whatever, in or in connexion with any military operation : " Naval service " shall, as resi)ects a person, include service as a marine, emphiyment as a pilot in piloting ov diiecting the course of a ship of war or other ship when such ship of war or other ship is being used in any military or naval operation, and any employment whatever on boanl a ship of war, trans- port, store ship, privateer or ship under letters of niaripte;- and as respects a ship, include any user of a ship as a trans- port, store ship, privateer or ship under letters of nuwiue : "United Kingdinu" includes the Isle of Man, the Channel Islands, and other adjacent islands : " British i)ossessi(in " means any territory, colony, or place being ])art of Her Majesty's dominions, and not part of the United Kingdom as defined by this Act : " The Secretary of State " shall mean any one of Her Majesty's Triniipal Secietaries of State ; "The dovernor" shall as respects India mean the Governor General or the Governor of any presidency, and wh.re a British possession consists of several con titueiit coloniis, mean the dovernor (ieiieral of the whole po.ssession or the Governor of any of the cons'ituent colonies, and as respec.s any other liiitisli possession it slnill mean the officer for the time being APPENDIX. 297 "Court of Acliiiinilty ;" ' Ship :" (uljiiinisteiing the govcriinieiit of such possrssion ; also any person acting i'ur or in tlie cuiiacity of a governor shall be inchukil lunler llie term "CSovurnor" : " Court of Admiralty" shall mean the High Court of Admiralty of England or Irehuid, the Court of Session of Scotland, or any Vice- Admiralty Cuurt within Her ihiji'sty's dominions : "Shi[i'' sjiall include any description of Imat, vessel, floating liattery, or floating craft ; also any descriptiun of boat, vessel, or iitlier craft or liattery, made to mo''e either on the surface of or under water, or sometimes on the surface of and some- times under water : " Liiilding" in relation to a ship shall include the doing any ait "Buildhig towards or incidental to the construction of a ship, and all words having relation to building shall be construed accord- ingly : " E([ui]ij)ing" in relation to a shii) shall include tlie furnishing a slii]i with any tackle, apparel, furniture, provisions, arms munitions, or stcu'es, or any other thing wiiich is used in or about a ship for the jjurpose of titling or adapting her for the sea or for naval service, and all words relating to eipiippiug shall be construed accordingly; " Sliiji and equipment " shall include a sliip and everything in or beh^iging to a ship ; " JIasler " shall include any person having the charge or comniaud " Mnater.' of a ship. ' Eciuiiiping :" "Shipaml cijiiiiiincnt :" Repeal of Acts, and Saving Clauses. 31. From and after the conimeucemeut of this Act, an Act jiassed in the fifty-ninth year (.if the reign of His late Majesty King George the Third, chapter sixty-nine, intituled "An Act to prevent the " enlisting or engagement of His Majesty's subjects to serve in " foreign service, and tlie fitting out or e([uippiiig, in His Jtlajesty's " dominions, vessels for warlike purposes, without His Majesty's " license," shall be repealed : I'rovided that such repeal shall not affect any jienalty, forfeiture, or other punishment incurred or to be incurred in respect of any offence committed before this Act comes into ojieration, nor the institution of any investigation or legal jiroceeding, or any other remedy for enforcing any such penalty forfeiture, or punislnneut as aforesaid. 32. Nothing in this Act contained shall subject to forfeiture any commissioned ship of any foreign state, or give to any llritish court over or in resjiect of any ship entitled to recognition as a com- missioned ship of any foreign state any jurisdiction which it would not have had if this Act had no! jiassed. 33. iSothmg in this Act contained shall e.\teiid or be construed Repeal of Foreign Kiilist- inent Act. 59 a. 3, c. 69. Saving as to cninmissioneJ foreign siiips. rcnallies not 298 ArrENi>ix. to extend, to sn1)ject to nny penalty any person who enters into tlio niilitiiry siTvifc of anv priiu'f, state, ov pnteutale in Asia, with Asia'^'wa. 3, case of sul.jccts ..f Her >[ajc4y entering into the military service uf c. 00, s. 12. princes, states, or [lolentates in Asia. to extend to persons outer iiii; into niili- tiiry soi'vii'c in H. 1-2 & 13 VICT. Cap. 90. All Art to pro ride for the I'mArcution ami Trld in Her Mnjv.ififs Cnlniii''s "f ilil't'itccs coiHiiiiltcd U'ltkin the Jnri^dirtioa of the AdndrnUu. ' iUtA:niud\^VX^ Whereas by an Act iiassed in the eleventh year of the r(M,L,'u of lO&n Vr. 3, Kini,' William "the Tiiiia, intituled " An Act for the more L-tlectinl c. 7. Suppres-^ion of Piracy," it is enacted, lliat all iiiracies, felonies, an.l rohberies eommittc.l .ai the sea, or in any haven, river, creek, or place where the Admiral or Admirals have power, authority, or juris- diction, neiy he examined, imjuired .if, tried, heard, and determine(l, and adjud-ed, in any jdace at sea or upon the land in any of His Majesty's islamls, id'autations, culonies, (himinions, I'orts, or factories, to iie appniiited for that purpose l.y the King's Commission, in the manner tiierein directed, and accordhig to the Civil Law mid the method and rules of the Admiralty : And whereas by an Act ])assed in the fortv-sixth year of the reign of King George the Third, .l,i (}. 3, c. UL intituled, ''An Act for tlie speedy Trial of Olfences committed in distant parts upon tlie sea," it is enacted, that all treasons, piracies, felonies, rohheries, i __ uunlers, cons]iiraeies, and other offences of what nature or kind soever, committed upon the sea, ov in any haven, river, creek, or place where the Ailmiral or Admirals have pcnver, authority, or jurisdiction, may he imiuired of, tried, heard, determined, and adjudged, according to the common course of the laws of this realm used lor olfences committed upon the laiul within this realm, and not otherwise, in any of His Majesty's islands, plantations, colonies, dominions, forts, or factories, under and hy virtue of the King's commission or commissions under the great seal of Great liritain, to he directed to commissioners in the manner and with the powers and authorities therein provided : And whereas it is expedient to make further and lietter provision for the apprehension, custody, iind trial in Her Majesty's islands, plantations, colonies, dominions, forts, and factories of persons charged with the commission of such (lifences on the sea, or in any such haven, river, creek, or place as atoresai 1 : Be it therefore enacted ly the Queen s iiii>st Excellent Majesty, hy anil 1 with the advice and consent of the Lords spiritual APPENDIX. 2UU nnil tcmpoTal, iiml OoTnmr.ns, in tins prcsont Parliamont a«-'Pm1>liHl, and by tin.' autlidiity ct' tlie s^ani", that if any poivou williiu any coldiiy shall bo char^'oil with tlu; CDiuniission of any treason, luracy, fflony, robbery, murder, consijiraey, or other offence, of what nature or kind soever, connnitted upon tliu sea, or in any haven, river, crei'k, or plaro wlieiu tlie Adniira' or Admirals have power, aulliorily, or jurisdiction, or if any person charj^'ed with the com- mission of any such oti'mce upon the sea, or in any .such liaveii, river, creek, or place, shall be brought for triid to any colony, then and in every such ca^e, -11 iniiuislrates, jusiiix's of the jieace, public prosecut(U's, Juries, judges, ciuirts, jiublic ollicers, and other persons in such colony .shall have and exercise the .same jurisdiction and auth(jrities for impiiring of, trying, hearing, determining, and adjudg- ing such olfi-nces, and they are hereby respectively authorisi'd, empowered, and reipiii'cd to institute and cany on all such ]iro- ceediiigs for the bringing of such ]>erson .so charged as aforesaid to trial, and for and auxiliary to and cotise(pxent ui>ijn the trial of any such person fcu' any such C)(l'ence wherewith he may be charged as aforesaid, as by tlu' law of such colnny would and ought to have been had aiul exercisecl or instituted a"d carried on by them respectively if such oll'euci'had been committed, and such person had been 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 crimin.il justice of such colony. 2. Provided always, and be it emrcted, that if any person shall he convicted before any such Cnurt of any such otl'cnce, such person so convicted sludl be subject and liable to and shall suffer all such and the .same pains, jnualtics, and forfeitures as by any law or laws Uiiw in force jiersons convicted of the same respectively would be subject and liable to in case such offence had been committed, and Were impiiredof, tried, heard, determined, and Mljudgcd, in England, any law, statute, or usage to the contrary uotwillistanding. 3. And be it enacted, that where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poist)ned, or hurt upon the sea, or in any haven, river, creek, or i)lace where the Admiral or Adndrals liave power authority, or jurisdiction, or at any place out of such colony, every otfcuce committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inipiired of, tried, determined, and punished in such colony in the same manner in all respects as if such otl'ence had been wholly committeil in that colony ; and that if any person in any colony shall be ehaiged with any such offence as id'oresaid in respect of the death of any pi'rson who, having beon feloniously stricken, poisoned, or otherwi.se hurt, shall have died of All persona eliar^'oil in any culony with otrenccs committed on tliu m:!\, may liO dealt with in tlio same manner as if tlio iitlenccs liad iMion connnitted on Witters witliin tlio local jnrisilic.tion of tlio cciiirts of tlio colony. Pprsons con- victed of such otl'onces sliiill sntTor tlio like IHinislinionts iis on con- viction of like olTtnces in England. Provision for tlie trial of niurilia' and nianslan.ulitcr, when; tliu death only liainiens in the colony or npou tlio sea. 300 Arrr.NDix. Jurisilictinii of the Sii|iiTiiio Cmirts III' New Scmlli Wiilos ami Vim DioiiR'n's Luiul JIR'St'lVwl. tt Q. 4, e. 83. Interpretation of Terms. Aet may lio ameuded, &c. such Ktroke, poisoiiiiip, or liurt, upon tlic son, or in any liavpn, river, creek, or jdiue wlieiu llie Admiral or Ailniirals liuvi ].(iwer, authority, or jurisdiction, such ollVuce sludl lie held ior the luirpose of this Act to have hecn wholly coiuiuit ted u]iou the sea. 4. Provided also, and he it enacted, that luitliiu},' in this Act contained shall in any way aflect or uhrid^-e the jurisdiction of tlic Supreme Courts of New South Wales and Van Dienu'ii's hand, as estahlished hy an Act jiasscd in the ninth year of the n i-n of Kinj,' OeoFL^ethe Fourth, intituh-d "An Aet to ]irovide for the Adniinis- tratiiiii of Justice in New South Wales and Van Diennii'.s Land, and for the more effectual Uoverniuent thereof, and for other puiposes rehitin;,' thereto." 5. And he it enacted, that for the purposes of this Act the word "Colony" shall mean any ishiud, plantation, colony, dominion, fort, or factory of Her Majesty, cxcei)t nny island within the United Kin!,'dom, and the Islands of Man, (iuernsey, Jersey, Alderney, and Sark, and the Islands adjacent thereto respectively, and except also all such parts and places as are under the Government of the East India Company : and the word "Governor" shall mean the otlicer for the time heing administering,' the government of any colony. G. And he it enacted, that this Act may be amended or repealed hy any Act to lie passed during this present Session of Parlianient. Al'l-r.NDIX. 801 I. REGULATIONS FOR PREVENTING COLLISIONS AT SEA, Appended to the Order in Couxcir., Dated Uth January, 1863, which were issued in jnirsuance nf the Mn-- rhitnt Shijijiiiiii Act (Amvndi/ifnt Act), 18G2, s. 25, and came into operation on the \st June, 1803.* Contents. Article 1. rruliminary. Rules concerning Lights. 2. Lij,'lit.-< to lie carried as foUow.s : — 3. Li.Ljlits for .steain slii[).s. 4. Lii^hts for steam tugs. .'3. Lii^lits for siiiliug ships. f). Exceptional lii^lits for siniiU sailing vessels. 7. Liglits for ships at anchor. 8. Li^'hts for pilot vessels. [). Liylits for tisliing vessels and Lcjats. Rules concerning Fog Sijnah. 10. Fog signals. Steering and Sailing Rules. 11. Two sailing ships meeting. 12. Two sailing ships crossing. 13. Two ships under steam meeting. 14. Two ships under steam crossing. 15. Sailing ship and ship under steam. 1(). Ships under steam to slacken speed. 17. Vessels overtaking other vessels. 18. Construction of Articles 12, 14, 15, and 17. 19. Proviso to save special cases. 20. No ship under any circumstances to neglect proper precautions. • For Order iu Council, see Lushiugtoii'a li. Apj). 72. 302 APPKNinX. Lii-liU. Liulits for Li;.'lifs f.)r stuiuu tlliS. Lights for sailing .ships I'reH)iiiiinrji. Art. 1. In tlie lolldwiii^' n\\vA ivi'iy steam Pliii) wliicli is niidov sail ami not iiiuUt steam is to W wuAA>\\d a sailing; sliiii ; and cVL'iy sleam sliii) wliirh is iiiuliT stiam, wliftiici luukr Hail ur nut, id to lie cuiisitki'iid a sliip uiuUr sluam. iiif/cs cnnccrni)i(j Liijlils. Art. 2. Tilt! Lij^lits nu-iilioiifd in the ^.>l!()\viIl,^' Articlis, niimln'ivd ;?, 4 f) (! 7 H, ami !), ami no Dtliurs, shall liu cairifil in all weatliuis, fi I siiiisut ti) suiiviso. Alt. 3. SuiiKoiii" stoam sliijis when uiulor way sliall carry : (((.) At tlu: I'onnia-t head, a Ini-ht wiiite light, so lixed as to show an uniform and nnlmdien li^^ht over an arc of the horizon of 20 joints J the comjiass ; so lixed as to throw the li^lit 10 iioints on ca(di side of the ship, vi/., from ri-ht ahead to 2 points aliaft the Learn on either side ; and of such a cliaraiter ns to he visiMe on a ilark iii;-;lit, with a clear atmosphere, at a distance of at least live miles : (/i.) On the RtarlKmrcl side, a ^won lij;ht, so constnxctea ns to throw an uniform and nnliroken lij^dit over an arc of the horizon of 10 imints of the compass ; so fixed as to throw the li"ht from right ahead to two jioints ahaft the learn on the starhoard side ; and of sncli a character as to he visilde on a dark night, with a clear atmosphere, at a distance of at least two miles : (c.) On the port side, a red liglit, ?o constructed as to show an uniform and unhroken ^ ^-er an arc of the horizon of 10 point.s of the compass ; s- as to throw the light from riulit ahead to two points ahaft the beam on the ]>ort side ; and of such a character, as to be visible on a dark night, with a clear atmosidieio, at a distance of at least two miles : (,/.) The said green ans are required to carry. s.'iine white mas Sailins ships under weigh, or being towed, shall cany the h, with the exception of the Art. 5. Sailing sliii li'dits as steam shijis unar uno nuit somlire, mais sans limine ; ((•) A hilhord, lui feu rougo conslruit do fa(;f)n a projoter uno lumiore uniforme ot non interronipue sur un arc Imri/ontal de 10 quarts du compas, (jui est coin])iis entro I'avant du ravire, ot 2 quarts sur I'arriero du travers h lu'diord, ot d'liiio portde telle (pi'il puisse otre visihlo h. 2 millos au luuiiis do distance, par uno unit soinlire, mais sans lirumo : {d) Cos foux lie cote stmt pourvus, on dedans du liord, dVcrans diri^'os de I'arriero <\ I'avant, et s'oteiident h 0"'.!)0 en avant de la lumieiG, afin quo lo feu vert no jiuisso pas otre apergu do Ij.lbord avant, ot lo feu re ",'e do tiiljoid avant. Art. 4. Los navires h vapour, .^ Land lis ronior|itiiiii.'i All. (1. WlM'iii'Vcr.iis ill tliccMwi' nl'siniill VfssclMlniiiijiliail wi'iilliiT, li;:l.i; fnlsm:,ll lli^. j_r|,,,.„ „ImI Mil liu'llt.H lalllK.t 111! lix.'ll, tlu'M) lij^lll'^Hllllll lit! kcjit BiiiliiigvcNsfls. ^^^^ ^j"^^,,.^ ^1^ ,]^^,;|. ,,,.'^j,yctivu »iclf« "1 111.' v.'HSfl, Tca.ly (or inshmt fxliilMliuii ; dikI sliall, t vinilile, and fo lliiil till! KV''f" li,ulit .-liall not liL- sfi'ii on the iioit siiU', imr the red li^^lit I'll till' .-tailioiinl Hiilt'. To luiiki' 111.' usf of these iiorfaMc li^ilits iiion^ ctrtiiin and oaHV, till' liintcrns contiiiiiin^' tlu'iii slmll tii.h In- paiutid out.-i.l.- with tli.' cilonrol' till' liKlit liny R'spirtivi'ly cjiiluin, tiJid shall he in.ivi.i.'.l will] -iiilaMi; scri'i'iis. Alt. 7. Shitis-wht'llier .^team-shii.sorsailin^'-ships.whcn at aniliov Li^ilits fi>r liiliit vessels. Li^^lits fill- ll.-llilli; Vl'^SoIs mill liiiiitis. III I'nai l>tt'iuh or fiiinvav.i, nhall I'.xhiliit, where it can lil'st 1 le seen, liiit at a h«'i,i,'lit not e.xn'i.l li^lit, ill a j^l.iliiihir tunti'in .-;tiiuU'd a>< to show a duav iini round the horizon, and at a di.-taiice of at li'a.'^t one mile. twi'iity feet ahovc the hull, a white i)f cii^ht inches in dianictcr, and .su cuii- form and unliroken li^ht visible all Alt. 8. Sailing,' pilot vessel >liall not i.irrv the li-hts rcnuiicd for iitliiT sailini'-vessfh, liut shall carry ;>iilc li'dit at the mast hi-ad, ildi' all iiiuiid llic horiziiii — an il sliidl also L'.xhiliit a llare-up lii^ht every lil'tien minutes. Art. !). Open ^l^hin;4- rei|iiiriil to carry the si shall, if they do not carry sii sliile on the one side and a re.l slide .m and other ojieii Imats shall not he h\ for other vessela ; hut le^lil> reipii ch lij^hls, cany a lantern liavin.,' a c-i'.'fn the other si.le ; and on ih.' aiiprna •h or to other vessi ■Is, such lantern shall 1 le e.x hihited ill sutlicielit time to ]irev. lie seen on t colli . that the iireen li^ht shall not tlie iioit sitl ■, 'lor the red li.ulit on the starboard side. Fi.shin.i,' vessels and open bnats when at amhnr, or attaclud to leir nets am fishiiit; vc rum nsiiiLr a 1 stationary, s hall exhibit a briLdit white li^^ht. ssel> and .ipen boats shall, however, not Vie prevented ilaie-up in addition, if considered expedient. Art. 10. Whenever there is fo.i;, whether by day or nii^dit, tl si'^nals ( souiiilei lescribed below shall be can'i le fof,' ed and used, and shall be lied at least everv live minutes, viz. : — (i(.) Steal be lull ship tlie I nndiT wei di shall n>e a steam whistle jilaced uiiiiel, m it less than eiLihl leet the deck {h.) Sailing ships niider wei-h shall use a I'ni,' horn (r.) Steam ships and sailing ship a bell. kheu not under welL;li shall use APPENmX. Art. fi. Lorwiuc den Imtiinonts h v«i]ve sont d • « fnililcM (limiM Hioii pour qiu! liiiiH I'ciix vcits (t n.iiKcs nt! piu |.,m .*fit> flxi s (I'line iimiiitSri! iicinmiictitc, cch fcux nout iiniiimiiiiis tciiiis nllinii6K Hiir It! )M)iit 4 Iciiis Lords ivs].fctifH, pi.'ts I'l ("■Ire iiKintn'H instnn- laiiLiiR'iit il tout niivire dont on conHtiitiTuit rapiinichp, ut nssez h tciii|is ]Miur piVvc'iiir I'iiliorda^je.. Ces t'aiKiux portatit'H iiciidaiit cottc cxldlntion sent tenus autuiit on viie fine ])os8il)li', ct pn'sentt^s dt! telle soite ipie lo feu vert no puisse etre apeii^u de bal.ord iivant, et le feu n.u-c d.- tiilioid avant. Pour rendre cch inrscriptionH tl'uue apiilication plus ccrtuine et plus facile, lew funaux sent p"int8 extiTieureiuent de la couleur de feu ijii'ilH conticnneiit, et doivuiit t'tie pourvus d'l'craim Cdnvi-naMcH. Art. 7. L(8 Imtinients, taut a voilf.s .piVt vapeur, uiouilli's sur uiie radc, dans uii chcnal ou sur une li<,'ne frui|Uuntoi', portent, dcpuLs le iduclier jusiiuau lever du soleil, un feu blauc place i\ uiie liauteur i|ni n'excide ]ins 6 metres au-des.sus du ]iiat-liord et inojet^uit une Iniiiii're unifornie et non interrompue tout aiitmr de I'lioii/ou i\ la distance d'au nioins un niille. Art. 8. Les bateaux-pilotes a voiles ne sent pas assujettis h porter le.s lueiues feux (jue ceux exigespour les autres navires i'l voiles ; nmis ils .loiveut avoir en tete de mat un leu Mane visiMe de tons les lK)ints de I'liorizon, et de plus niontrer un feu de (juart d'heure en (punt d'lioure. Art. !). Los Imteaux de peche non pont.'set tons les autioa bateaux e'falement non pontes ne sont pas tenus d(! jjorter les feux de cute exi-es pour le^i autres navires; mais ils doivent, s'ils ne sont pas jMiurvus de seiuldaliles feux, se servir d'un fanal muni sin- I'un e san.e side, or if one of them m« the win.l aft, the ship whieh is to windward shall keep out ol llie Wrtv of the xhiji whiih is to leeward. Art. i:). If two shipn under steam are meetinj,' end on or nearly end on so as to involve risk of eollision, the helms of both shall he l,ut to port, HO that each nn.y paits on tlu' port side of the other. Art. 14. If two ship^ under steam are crossinK oo as to involve risk of eollisio,., the ship which has the other on her own starboard side shall keep out of the way of the other. Art 15. If two ships, one of which is a sailing ship, and the other a steam shiis are prorcdin- in such directions us to involve risk ot foUision, the steam ship shall keep out of the way of the saihn- ship. Art 10. Everv steam ship, when approaehin^' another ship so as to involve risk of collision, shall shuken her speed, or, if nece.ssary, stoi. and n'vers,. ; and ev.rv steam >liii. shall, when iu a ion, go at a niodi'iate spued. , , ,, i f Alt. 17. Kvery vessel overtaking- any other vessel shall keep out of the way of the said last-nuntinnetl vessel. All. 18. Where by tlie above rules one of two ships is to keep out of the way, the other shall keep her eourse, subject to the 4uahRca- tions contained in the following' article. Art. 10. In obeying and construing these rules, due re^-ard must heha.lto all daubers of navigation ; and due regard must also be had to anv special cinunistaiues whiih may e.xisl ui any particu ar oas.' rend'eiing a dei>arturc from the above rules necessary in order to avoid immediate danger. _ Art. 20. Nothing in these rules shall exonerate any ship, or the owner, or master, or crew tlu'rcf, from the eoiiscHuences .)f any ne-lect to carrv lights or signals, or of any neglect to keep a proper lo(?k-out, or of" the neglect of any precaution which may be rciuired by the ordinary practice of seamen, or by the special circumstances of the case.t • Artieles 11 and 1=5 explained, ?m^' post, N. t The I)ia„an>s to illustvate the use of the lij;hts earned by vessels at sea and the i.ianiur in whi.d, thev iadi.ate to the vessel v.h,,-!, ^.:es t'. '",■'• p ositum and d.^rlption of the vessel that earves them, appen.le.l to then n Al'PKNmX. I'l'iili* nlKtinn,) hi roiilf, Alt. II. Si ilciix imvircs a vdiluH m- ii'iicniiticnt roiiiniit I'liii «iir I' idf, iliivptt'rii.'iit on i\-p..n.pri.H, et (in'il y ait ri^fiiiu '(liat. Alt. 20. Ricii dan.s les n'glcs ci-dessu.s ne saurait atrrancliir un uavire, (juel (lu'i! soit, .ses armateurs, son capitaine on son iMiuipage, dis con.sequenecs d'une omi.ssiou de porter des feiix on signaux, d'un .t, Ajr.ji. M. ' X 2 MOT 808 APPENDIX. Rules, &c., for preventing col- lisions on the water. Lights on vcs- sels-of-war need not be ex- hiliitcd, when, &c. Regulations. J. AN ACT OF CONGRESS OF THE UNITED STATES OF AMERICA. 38Tn Congress, Sess. 1, Cn. fiO. {mh April, 1864.) An Actfudny certain Rules ami Eegnlatimis for preventiiuj collisions 0^1 the water. Be it onaoted bv the Senate an.l H.msc of Eepvescntatives of the United States of" America in Cong.-e.s assembled, Tliat from and after September one, ei^'hteen hundred and sixty-four, the followmg rules and regulations for preventing collisions on the water be adopted in the navy and the mercantile marine of the United btates : Provided, That the exhibition of any liglit on board of a vessel-ot- war of the United States may be suspended whenever, in the opinion of the Secretary of the Navy, the commander-in-chief of a s(iuadron or the commander of a vessel acting singly, the special character ot the service may require it. REGULATIONS FOR PREVENTING COLLISIONS ON THE WATER. Art. 1. » 2. „ 3. „ 4. „ 5. „ 6. „ 8. „ !). .. 10. » 11 1» 12 » 13 )) 14 ir» )) Hi CONTENTS. Preliminary. Ruhis concerning lights : — Lights to be carried as follows : Lights for steamships. Lights for steam-tugs. Lights for sailing-sliips. Exceptional lights for small sailing-vessels. Lights for ships at anchor. Lights for pilot-vessels. Lights for fishing-vessels and boats. Rules concerning fog-signals :— Fog signals. Steering and sailing rules :— , Two sailing-ships meeting. Two siiiling-ships crossing. , Two ships wider steam meeting. Two ships under steam crossing. , Sailing-ship and ship under steam. . Sliips under steam to shackeu [slacken] speed. APPENDIX. 809 Art. 17. Vessels overtaking other vessels. „ 18. Con.stnutioM of articles 12, 14, 15, ami 17. „ 19. Proviso to save special cases. „ 20, No ship iiiuler any circumstances to neglect proper IH-ecautions. PRELIMINARY. Art. 1. In the following rules every steamship which is under sail, and nut under steam, is to he considered a sailing-ship ; and every steamship which is under steam, whether under sail or not, is to be considered a ship under steam. Wliatto 1)0 con- siileicil sailing shijis iiiiil what .ships imder stuam. RULES CONCERNING LIGHTS. Rules foiligbts. Lights, Art. 2, The lights mentioned in the following articles, and no others, shall be carried in all weathers between sunset and sunrise. Lights for Steamshi2)s, Art. 3. All steam-vessels when under way shall carry — ((/,) At the foremast head, a bright white light, .so fixed as to show Lights for an uniform and unbroken light over an arc of the horizon of stcamshiiis ; twenty points of the compass, so fixed as to throw the light ten points on each side of the ship, viz. : from right ahead to two points abaft the beam on either side, and of such a character as to be visible on a dark night, with a clear atmos- phere, at a distance of at least five miles. (6.) On the starboard side, a green light, so constructed as to throw an uniform and unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible on a dark night, with a clear atmos]}here, at a distance of at least two miles. (c.) On the port aide, a red light, so constructed as to show an uniform unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light inmi right ahead to two points abaft the beam on the port side, and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles. {d.) The said green and red side lights shall be fitted with inboard screens, projecting at least three feet forward from the light, 80 as to prevent these lights from being seen across the bow. Lights fur Steam-tug.t. Art. 4. Steamships, when towing other ships, shall carry two for steam tugs. 310 Al'l'KNUlX. for siiiling shii)a. Exceptional LriKht wliit.^ Tuastliead lights vertically, in ad.litiou to their side lights, so as to distinguish tlieui iioiii otlicr stuaiiisliiiis. Kadi of these masthead iij^hts sliall he of the same construction and character as the niastliead liglits wliicli other steanishiits are required to carry. Liijlitii for Sailinfi-ships. Art. 5. Sailint;-ships nndor way or heiiig towed shall carry the same lights as steamships under way, with the exception of the white masthead lights, which they shall never carry. Exceptional L! of -vvliich is a aailiiig-sliil-' and tlu; otlicr ii stiaiiisliiii, are inoweiliiig in sucli divectinns na to involve risk of coULsiun, tlie steauiship shall keep out of tlii; way of the sailing-ship. Ships under Steam to slacken Speed. Art. 1(). Every steamship, wlien approacliing anotlier ship, so as to involve risk of collision, shall slacken her speed, or, if neces.sary, stop and reverse ; and every steamship shall, wlien iu a fog, go at a moderate speed. Vessels nvertalcinfj other Vessels. Art. 17. Every vessel overtaking any other vessel shall keep out of the way of the said last-nientiuned vessel. Construction of Articles 12, 14, 1.'), and 17. Art. 18. Where, by the ahnve rules, om; of two snips is to keep out of the way, the other shall keep her course subject to the (pialili- cations contained in the following article : — Proviso to save Special Cases. Art. 19. In obeying and construing these rules due regard must be had to all dangers of navigation, and due regard must also be had to any special circumstances which may exist in any particular case rendering a departure from the above rules necessary in order to avoid innnediate danger. No Ship binder any circumstances to neglect -proper Precautions. Art. 20. Nothing in these rules shall exonerate any ship, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look out, or of the neglect of any precaution which may be recjuired by the ordinary practice of seamen, or by the special circumstances of the case. Approved, April 23, 1864. K. Order in Co^mcil extending Sailing Regulations to ships of the United States when ruivigatin;/ the inland waters of North Amerxa, whether xoithin British Jurisdiction or not. The exteniling of the foregoing regulations to other countries will be found in the Orders iu Council referred to in Ai)pendix to Lushinglou's Admiralty Keports, 72-8, and in Appeiidi.v to Browning and Lusliington's Reports, p. 4b2, Sec alio post, M. Al'l'KNDIX. ^^ Tlu! Order in C'ouiail, datwl 3 itli Xovei.iliur, 1804, afltT rocitin- " The Meiclimit Shipiiing Act Anieiuliiient Act, ltiii-2;' and Oideid 111 Couucil, Dill Juuuaiy, lf,(j3, and -Ilth Au-u«t, 18(i4, proceeds us follows : — "And whereas the said Governiiieiit ol' tlie United States of America have expressed a desire that the said liegidation.s slimild be made to apply to sliips navigatinj,' the inland waters of North America, and tliat tliey slioiild apply to ships of the United States navigating siieli waters wlien beyond the limits of British juris- diction : " And wliereas ly an Act passed by the Legislative Council and Assiinbly of Canada, assented to on the 3Uth of June, 1804, and entitled ' An Act to amend tlie law respecting tlie navigation of Canadian waters,' after reciting that it would tend to tlie greater security of life and property in vessels navigating Canadian waters, that the same rules of navigation ami the same preciiulions for avoiding collisions ami other accidents as were then adoi)ted in the United Kingdom, and in other countries, should also be adopted in Canada, it was enacted that on and after tiio first day of September, 18()4, the rules contained therein with respect to lights, fog signals, steaming and sailing, should apply to all the rivers, Likes, and'other navigable waters whatsoever within the province of Canada or within the jurisdiction of the Legislature thereof : " And whereas the said rules so referred to are the same as the regulations appended to the said Order in Council, bearing .late the !»th January, 1803, except that they are not entitled licgulations for preventing collisions at sea ; and whereas the same are also appended to this order : " Now, therefore. Her Majesty, hy virtue of the power vested in her by the said 'Merchant Shipping Act Amemlment Act, 1862,' and by and with the advice of her Privy Council, is pleased to dn-ect that the said regulations appended to this order, shall apply to ships belonging to the United States of America when navigatin-^ the inland waters of North America whether within BritislHuris- diction or not." * 818 Mem.— By tlie Act of Dominion Parliament, post, M, the abovc-meu- tioncd Act of tl.c rrovuieial riCgi>-laturc of Canada is reijcaied, and l)y re- ciiactiuent tliese regulations are extended to and nrevail tln-ouKhout all the waters of the Dominion. 811 ArrF,Ni>ix. rrcaiMlilo. Governor in Council to a])- )ioint ii Court of inciuiry. Powers of s\u'h Court ; evi- dence. I'^nforclng at- tendance. Perjury. Proviso, Sect. 242 of I mil. Act, 17 & 18 Vict. c. 104 recited. L. 27 & 28 VK'T. Cap. 14. An Act rcsperti.uj inmdlii,itlon into Shlimrccks. L;jidatnrcnf Cwuhi. ^ \;,Wh June, ISW,] WiiKRins it i^ cximaicnt toui.ke pvovi.sion fur (.nsuriiig a moro oiriri..|it .'^v.st.iu of iuvesti-ation int.. cases of .Inpwr.ck omimi.g witlnu tlm limits of tlic I'mvi.u'e of Caua.li., < illaT n. H"' <^'"lt "» Saint LawrwuH., or in the Uiver St. Launncc l.^low tli. Imrhunr oF Moi,tr.al : Ther.foro, IRt Majesty, l.y aiul witl. tlu- a.lvice a.ul consent of the Li'gislutive Cuundl and Ass..nil.ly of Canada, enacts as follows : 1 It shall he lawful for the Clovcinor in Council, ni'on any occasion which to hi-n n.ay .se-em fit a.ul expedient, to nonunate and appoint any competent person or persons to he a court ov tribunal duly authorized to nuike enquiry into the causes of shipwrecks, as menlLnied in the preamble to this Act, and to make report thereon to the (.iovernor in Coniicil. 2 Such court or tribunal shall have the power -d summoning before them any persons, an.i of requiri.i- them to ^ive evidence on oath orally or in writin- (or on solemn allirnuitum, if they be parties entitled to allirm in civil matters), ami to produce such documents and tliiii"8 as such court or tribumd may deem rcpusite to the lull inv.-ti-ation of the matter!; into which tlujy are appointed to examine, and siuh court or tribunal shall have the same power to entorce the attendance of such witnesses and to comprl them to give evidence, as is vestet perjury ; but no such witness shall be compelled to answer any .piestion by his answer to wliicli he might render himself liable to a criminal prosecution. 3 And whereas it is enacted by the two hundred and forty-second .oction of llui Act of the Imperial Parliament, passed in the session thereof held in the seventeenth and eighteenth years of Her Majesty s reign, chapter one hundred and four, intituled " An Act to Amend and Consolidate the Acts relating to Merchant Shipping," that the Board of Trade may suspend or cancel the certilicate (whether of competency or service) of any master or mate of the Merchant Service, in certain cases, one of which cases, set forth in sub-section five of the sai.l section, is as follows ;-« If upon any investigation made by any court or tribunal authorized or hereafter to be authorized by the legislative authority in any P.ritisli posse-ssion, to make inquiry into charges of incompetency or misconduct on the part of Ari'i;Ni)i.\. 816 iiKi-turs or mates ul .«lii]i-!, or as to sliijiwruck.s or otliur casuiilticH iilU'ctiii;,' .s]iip>, ii ifport is niiule liy .such loiiit or trilmiial lo tlio ellc'ct tlmt hi! liiLS been j,'iiilty ol' iiiiy j^rossact of luiscondui't.ilruiikuii- iifss, or tymiiuy, or that tliu lus.s or iiliandomiiciil of, or scriuiis damage to any sliip, or loss of life, lias ])eL'U caused by Ids wrongful act or default, and such report is conlirmed by the ^' )Veruor or person acbninistering the governmeid of such po.-tsession ;" And whereas it is luilher in elfect enacted by the twenty-third section of the Act of tin; Imperial Parliament, passed in the session thereof held in the twenty-lifth and twenty-si.\th years of Jler Majesty's reign, cliapter sixty-three, that tiiu power of cancelling or su.-pending the certilicate of a master ov mate conferred by the above cited two hundred and forty-second section on tlie J5oard of Trade, sliall in future vest in a ! bo exercised liy tlie court or tribunal by which tlie case is investigated or tried ; ]3e it liereby fuither enacted, that such court or tribunal authorised to be ajipointed liy this Act, shall be held to be in all respects a court or tribunal under the hereinbefore cited sub-section of tlie aforesaid Imperial Act. 4. Every meml)er of such court or tribunal so aiipointed as afore- said, before entering upon his duties as such, shall tainft tlio l>f'ain on tlu' star- 1)0!iril side ; and ol' unc.h a cliavacter as to lie visililo on a dark nif,'ht, with a tluar atinosplieic, at a distance of at luast two miles : (('.) On tlie port side, a red li^lit so constructed an to show a On imi-t wjilr, unifor-ii and unbroken li},'ht over an an; of t lie Imrizon of ten ])oints of the compass; so fixed as to tlimw the li;4ht fr.mi rif,'ht alu c ^o two points abaft the beam on the jioii side ; and of such n character as to be visible on a dark ni;,'ht, with a clear atmosphere, at a distance of at least two miles : (il.) The said yreeu and red side lij^'hts shall be fitted with in- board screens, projecting at least three feet forward from the light, so as to jirevent these lights from being seen across the bow. Art. 4. Steamships when towing other ships or rafts, shall carry two bright while mast-head lights vertically, in addition to tlieirside lights, so as to distinguish them from other steamships ; each of these mast-head lights shall be of the same construction and character as the mast-head lights which other steamships are recjuiied to carry. Art. 5. Sailing ship.^ under weigh or being towed, shall carry the same lights as steamshijis under weigh, with the exception of the while masl-head liglits, which they shall never carry. Art. (J. Whenever, as in the case of small vessels during bad weather, the green and red lights cannot be fixed, these lights shall be kejit on deck, on their respective sides of the vessel, ready for instant exhibition, and shall, on the approach of or to other vessels, be exhibited on their resiiective sides, in sutlicient time to prevent collision, in such manner r.s to make them most visible, and so that tlie green light shall not be seen on the jiort side, nor the red light on the starboard side. («.) To nuike the use of these portable lights more certain and easy, the lanterns containing them shall each be pvinted outside with the colour of the light they respectively contain, and shall be jirovided with suitable screens. Art. 7. Ships, whether steaii'.shij)s or sailing shiiis, when at anchor in roadsteads or fairways, shall exJiibit, where it cim best be seen, but at a height not exceeding twenty feet above the hull, a white light, in a globular lantern of eight inches in diameter, and so con- structed as to show a clear, uniform and unbroken light visible all round the hoi izon, and at a distance of at least one mile. Art. 8. Sailing pilot vessels shall not cany the lights required for By pilot vessels, other sailing vessels, but shall carry a white light at the mast-head, visible all round the horizon,— and shall also exhibit a ilare-up light every fifteen minutes. Art. !). Open fishing boats and other open boats shall luit be By open fisliing By sailliif; ships in luolioji. By small ves- sels in biul wuatlicr. Lanterns to 1 o li;ii?itcil oiit- siiie. By slii;is at anchor. iUH AI'l'r,NI>IX, ,'Uhl (itlicr limits. Wlirii at UIJI'IkiI. Fl;ii-e-iililia'it'<- n'.|iiiivil 111 caiiT tlic si'lc li;4lits rr.|uii(i(li' ; mid oil thr iipiMoaidi nf or to otliiT VBswls, siidi ImitiTii sliall lie exlii- liited in MiHicient time to invveiil collisiiai, ao tlmt tlie i^iveii light (thiili not he Heeii on tlif \>i>n side, nor the red lij^lit on the star- hoard H\l\i\ (i(.) Fishiiif,' vesscds and open hoats when at anchor, or attn'Iied to their nut8 and stationary, shall exhihil a hrii,dit white li-ht. (II.) Fishiii},' vessels and open hoats shall, however, not he ineveiitid from usiii},' a llare-up in ad' tion, ilconsiiU'ied expedient. Pules fmiferuiiKj Fnij Hiijnub. Fof KigimlH. Art. 10. "Whenever there is foj;, whether hy day or ni^ht, the I'oj,' sij^iials descrihed helow shall he carried and used, and shall he aonnded at h-ast every five minutes, viz, :— (((.) Steam8hi]is under \\ i;,di shall use a steam whistle placed hel'iiie the I'niinel, not less than eiglit feet from the deck. (/».) Sailiii;,' ships under wei^li shall use a [»'^ horn, (c.) Steamships and sailing shijis, wluii not under wei;.;li, shall use a hell. Sniliiip sliips iiicutiiig. S,iilin!.' sliipH ciossiii;'. Stcaiiisliips iiieetiiiy. Steamships crossing. Sailing and stcaiiisliii'S. Slrcrimi mill SniliiHi Uiiht A\\. 11. Tf two sailiiii,' slii]is are ineitiii!;' i ■ml on fir nearly end on as to involve risk of collision, the helms of Imth shall he ].ut to port, so that each may pass on the ]H)it side of the other. Art. \i. ^Vllen two sailing ships are crossing so as to involve risk of collision, then if they have the wind on dill'erent sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the staihoard side ; except in the case in which the ship w I 1 the wind on the jiort side is close hauled and the other ship free, in which case the latter ship .shall keeji out of the way ; hut if they have the wind on the same side, or if one of them has the wind alt, \\n- ship wdiich is to windward shall keep out of the way of the shiji which is to leei ■d. Art. 13. If two ships under steam are meeting end on or nearly as to involve risk of collision, the helms of Imth shall end on, so be ]int to ]iort, so that each may pass on the port side of the other. Art. 14. If two ships under .steam are crossing so as to involve risk of collision, the ship which has the other on her own starhoard side shall keep out of the way of the other. Art. 15. If two ships, one of which is a sailing ship, and the other a steamship, are proceeding in such directions .as to involve risk of ci)lli-i',n!, the steamship i-hall keep out of the way of tlio sailing i-hip. Al'llAI'IX. WV.i Art. in. Evi'iy Btpani-iliiii, wlicii ii]i]iinfiiliiiif,' nimtlicr nliip sd ns Sfcnmsliiii to iiivnhe rink ol' inllisioii, wliall Hlackcii Ini s|'i't(l, or, if iircfssarv, n'MiiriK an- Htiip mill luvi'isc ; iiiid I'ViMv slt'uiiinlnii i-liall, wlitii m u 1"^' K" "'■ a IIIImIlT.iIo S|lll'(l.* All. 17. l^MMV vi'sscl iivcilakinj,' iiiiy dtlier vccntl kIiuU kti'[i out Wsh.I dviTtuk- of till' way of the said la-t-im iitioiicil viMsi'l. '"" •in"''"'". Alt. 18. Wliei'o by tin' abuvu mien oiio (if two Hlii])s is to kci'ji Sliip k»'<'iiiiit,' out of thu way, the (.iIiit .shall ] Ik r i.ouisu, tsul.juil I., tho "ut "f tliu way. qualifications contained in llir i .inwiii},' aitichi. Art. 1!». In olu'vin;,' and tdiistniing tln-c rules, due ii'e;Micl nuiwt I?ou':ir.l V> iliin- lie had to all daiij,'eis of iiavi;^ation ; and due re;,'ard niiLst al.Mi lie j-'.'''^ "' '"'^'i;''- !iad til (tiiji spcciiil ciic '1.4(1 iini trhicli viiiij i.iint lit (iiiij iiarliciihir cdsf r(iidiri)iij a ilijiartiire frum the ulmvc rnldt iieannnrii in orilcr to atiii'il liitiiiidliitf ilniiijijr.f Art. ■J.O. Notliin;,' in these iiiles shall e.xonorate any ship, or the Uiilos not to owner, or inaMler, or crew thereof, from the con«ei|iiences of any *•''■'■"'* neglwt. neglect to carry lij.;hts or bi;.;nals, or oi' any iieLrlect to kei'p a proper luok-oiit. or of till' neglect ol any jmcaution wliieh may he reipiiied hy lln^ ordinary practice of Hcanieii, or liy the special lircunisianees of tile casts. liiiffii and llayhour of Sort: I, Art. 21. ]{afts while drifting or at anchor on any navi,'alile water Rules fm- rafts, shall have a luiglil lire kept Imrning tlieieon fiom .sunset to sunrise. Whenever any lai't is going in the same direction a.: another which is ahead, the one sliall imt Ijc so navigated as lo come within t\veiily yards of the other ; and every vessel meeting or overtaking a raft shall keep out of the way thereof. (((.) lial'ts shall lie so navigated and anchored as not to cause any unnecessary impediuient or obstriictiou to vesseks navigating . .le .same w atei s. Art. 22. L'nless it is otlierwise ordered liy tiie Trinity House of llarlidur of Montreal, ships and vessels entering or leaving the Hailiour of Sorel '^'"cl. shall take the port side, anything in the preceding articles to the contrary notwithstanding. Art. 23. The rules of navigation contained in articles twenty-one Articles 21 and and twenty-two shall he suiiject to the provisions containeil in -'- to ajiply. arliclea nineteen and twentv. Interpretation, Penalties, ttc. 3. In this Act the woril "vessel" includes every description of Interpretation, vessel used in navigation, — the word " ship " include.s every descrip- * Only ajuilies when there is a continuous approacbing of two steamsliips. T/tf Jesmnitil anil The Etui tif Hteid !l'2() Ari'KNDIX. tii)ii of vcwol not ]>ro]Mll(Ml liy oars,— llio oxiwsoion " stciiii^liiii" imliuli's fViTy vessel iuhihIIiiI wIkiHv or in luirt by stcuiii or liy any iniirliiiMiy or motive jiower otlnr than sails or oarn,— and the cx- pri'ssiun "onliiiary i.mcticf of seamen," as a]i|'lieil to any las.', inchi.h's till' onlinary jiractici' of skilfnl ami eavefnl (n r-ions eiif,'a(,'e(l iiig the waters of thin Dominion in like eases,— and the in navii'at word "owner" indnd. s the lessee or diarferer of any vesHol having tin; coiitnil of till- navi^'ation thereof. L(»iil rules aiM d. No Trinity House rule or hy-law, or other local rule or hydaw, hylawH. ineonsiRtent '.vith tliis Aet, shall he of any ior<'e or elh'ct ; lail so lar nx it is not inconsistent with this Aet, any smh rule or hydaw nnide by any Trinity House or otlier com]ietent local authority, sliall he of fuli force and ell'eit within the locality to which .t a]ii>lies. Rules ),rc-' •''>. All owners, masters, and |iersons in eharLje of any sldji, vi'sstd, Hcril,,.,! i,v tills ,,r raft, shall ohev the rides prescrihed hv this Aet, and shall mit Ad to 1(0 olieyt'ii rule earry and exhihit any other lii,'h1s nor use any other fo;,' sijrnuls than sueli as art! rei|uired hy the said rides ; and in ease of wilful default, Mudi master or person in charge, or such owner, if it ap)iears thac he was in fault, shall, for each occasion in which any of the said rules i.s inlVini,Td, incur a penalty not e.xceediu},' two hundred dollars nor leas than twenty dtdlars. f'dllisinns from (!. If in any ease' of ecdlision it appears to the f'ourt before which ni>ii-e Jnri-.i|i(,tii,n tin' iili'i iiif in ciiniinitt'i'. !•. Kvi'iy inspfctur of stfiunlinats sliall, \vliiMicM;r lie visits Insiwtnr of ahil ins|iii'ts any .-tcanilniat, cxaminr wlii'iln-r siicli stianiliu it in striiiilpMalK ti> |iiii|i('i'iv |.n,vi(!nl uilh li-lils, ami wiiii tlir imaiis ol' makiii- t'l,^' s'lii 'I'l'i'.v!.' ''" si,i;nal.s in |iuisiiiiiii'i' ol' tji,. inlrs i,iv.sriii,.Ml l.y lliis Act, an.l ih-iiiri- li-lu^, nil ill I'nr thai imiiMisi., ln\,. all tin' powi-is vested in him hy thi' '^''• A.t nf llli^ Sl-siun C-.S'^I f'.tl Ihr i„.y, ti',,! nf shViil'i'Hh; ,l,lil f,ir tllii iji-ritt'i- Kiifihj of II issi'iiiius liii fliiiii,\\,v iilitainiii,L; inrnniiatiun as to thu (ilisiTvanco ol' the iciiiiiivnic-nts of tlir saiil Art, ami sliall ivl'iisi. to yrant nny i.Ti-tiliratr uiiii n-pcrt to any ■li "!■ <';i" sliip>. /'"'// of .]f,,.'il cs, Lvthllil;/ nf Dii-nrn I'.-i /.) ''.//;,,;o,i.9. II. In every case of rnlli-' .|i he! ween two .-hips, it hIiuII be the <>l.li,-atinn of iiilv i.f the person in ehaive of eiuh .ship, if and .so far a.s lie can "'''sUis nf ves- du so without (lani,'er to his own >hip and crew, to render to the p"!i|.'',f'!CN'^ '" other .ship, her ina.ster, crew and p,i.s>eii^rers (if any) mirh u.s.sistance lisi!.n'! "" as may be piactirable and as may be neceiwary in order to save them from any danger caused by such collision ; in case he fails so to do, Pftiaitv in do- and no reasonable excu.se for such failure is shown, the collision '" "" shall, in the absence of proof to the contiary, be deemed to have been ('.iiised by his wron"ful .act. i fault. or default. 12. The owners of any ship, whi uier ( ' inadian, Ibilish 'oreimi Lial.ilitv of B22 owiv IS limited ill I'asc of cnl- lisiiin wit'liDiit tlK'ii' fiiiilt. Extri'iiu' iuiu'iiiit n ■ ooveiable. Toiiiuifje, linw caK'iiliiK'il ill such I'li.-ic, Tilt' s;\lii(". Foreign ship: As to insiir- aiiees in such cases. Collisions Al'l'KNDIX. shall not, in cases ^vl,oTo all or ary -f thr U\o^^■uv^ event, occur witlimit their actual fault or luivitv, that is U< say : (1.) Where any h.ss of life or personal injury is caused to any iierson lieiii^,' carried in such ship ; (2.) Wliere any .lauiaKC or loss is causcl to any jjooils^ nuT- chan.lize, or other thln.-s Nvhatsoever on hoard any su.h (3) Where anv loss of lifV or pen-oual injury is hy r*'^'-" "'' J)';; iiupruper navigation of such ship as alnresaul cause.l to anv pcvsiai in anvothership or hoat ; „ , . (.,) Where anv h.ss or dania.^e is by reason of the .mpnier „avi..uion'..f such ship as ai-ores:,id caused to any other M> or hixU, or to any Ko"ds, nu'rehandize ov other th,n;.'s what- soever o» hoard anv other ship or hoat ; ,,, ansuvrahle in dauav-es in xespeet of lo.s of life or persoim niptry, either alone or to,.th.r . ith h.s or dan.a.e to sh.ps, l'»;> ;;- «-^ ,.erehandi.e or other thino., «or in respect of Ic^s o'' '^«^^ ships, goods, nierehan,li/e or other things, whether there be u, ad tiolhls of'lite or personal injury or n.t, to an ^^oV^.at^;— exceeding thirty-eight dollars and uinely-two cents toi each n ol the ship^ tonnage, such tonnage to he the -K'f-^'^/'-"^;^^^ case of sailing ships ; and in the ease of steam hips the gros. tonnage ^vithout deduction on account of engine r.iom : OO In the case of any Ihitish or Canaduu. ship, such tonn <, shall he the rejstered or gross tonnage, aceor,hng to Ue Ihitish or Canadian law, and in the ease of a t.n.gn shiji which has heen or can he measured according to LrUi^h oi (-anadian law, the tonnage as ascertained hy such nieasnn.- nient shall, for the purposes of this section, he deemed to ht the tonnage of such ahiii ; ^ , „ ,«,i (,,.) In the case ..f any foreign ship, which has not heen oul cannot he measured according to Ihilish or Canadian aw the Secretarv of the Minister of Marine and 1 ishenes shall, on receivhig from or hy direction of the t'-'^ ''-""'^ f^ case, such evidence coneerning the dimensions of the ship as it „,av he found praetieal.le to furnish, give a cerlil.cate under his Imnd, stating what would in his .ipinion have heen the tonnage of such ship if she had heen duly measured accordi.ig to (,'anadian law, and the tonnage so stated in such certd.ca e shall, for the purposes of this section, he deemed to be the tonnage ' ' such ship. , ,;i. Insnnmces eiVected against any or all of the events """'a .at in the section last preceding, and oceurring without such actual la t or privity as therein mentioned, .hall not be invahd hy reason ol tin nature of the ri>k. ,, , 14. No owner or master of any ship shall be answe.able to an> mm Arrr.NDix. 323 ]ii'isnii wliatovor for nny Idi^s or (lai)iaf,'o occiisiojiod In- tlif faiill Hmdiil'Ii fiiult i]n[ actin,u in cliar^'c (if sncli sliip, "' l"'""-^- \villiin any |ilai:c wljcrc tlu' I'niiilnynicnl ol' hucIi |iili)t is eonipulsoiy li\' law. Scni:i)ri.K to Ri;i>i:,\i.Kn Act. 1."). Tlie sclicihilc anncxcil to tlif Ai't of the lic^'islaturc oftlic late ,.^..,^,.,|,,,| ^•.^,^.^. I'lMvincc ol' Canada licrdiy ivpcakd illiistralis tlie us(j of lliu lij,'lits ili.ui Act U< ho to lie carried by vessels under tiic provisions of tliis Act, and sliall lie printed with printed at the end of this Act Ky liie Qnecn's jirinter in the ollicial copy of tiiu statutes of the iiroseiit Sc>siou. Si'licchilo tn this. S II E I) U L K. 'riie followiui,' Dianvanis are intended to illustrate, the use of the Liithts carrie(l hy \essfls under the fore'^'oiuj^ Act, and tin^ inannei' in which they indicate to the vessel which sees tlieni the position and description of the vessel wliicli carries tlieui. FiKST. — When liotli red and i,'reen lights are seen : — A sees a red and _i,'reen li.Ljht ahead ;— A knows that a vessel is approaching liei' on a course directly opposite to her own, as B ; %- 01 If A sees a white mast-head li;^lit al)ove the other two, she knows that r> is a stoain-vessel. D SkcoM). — Wlien the red, and not the i,'r(cn li.i^dit, is seen : — A sees a red li,i,dit ahead or on the liow ; — A knows that cither, I, a vessel is a]iproachin^' her on her port how, as B ; weral'le to any Y 2 321 or, APPFA'PIX. , 2, a vowel i^^ crossing in some direction to port, as D D D. If A SOC.S a wl.ite n.ast-lu.a.l li.^l.t above tl.e ru-l h.ht, A k.unvs that the vessel is a si earn vessel, and is either api.r.aclnn- lu-r i„ Uu.sun.e aireaiun,asB,oriscrossi,.,^to purtinsonie .luvotiou, as 1) 1) D ; Third. -Wh.n the green, and not the red light is se..i :- _ A sees a green light ahea.l or ou the bow ;-A knows that^e.the., 1, a vessel is approaeliing lier on her starboard bow, as n ; or, , 2, a vessel is crossing in some direction to starboard, as 1) U D. _r-iD. Al'I'KNDIX. 325 D I) D. If A sees a wliilc iiiiisl-licad liylit above the -,'ieeii li;;lit, A knows tliaL the vessel is a steam-vessel, and is eitlier appioachin^' her in the same direction as B, or is crossing to starbuurd in some direction, as I) D \). ht, A knows iciachin;^ her me direotiou, that either, , as H ; u.l, as D 1) 1). '■«g| N. IIEGULATIONS FOR PIIEVENTING COLLISIONS AT SEA. Order in CohucU rvaitcdiwj the iqiidication of Artkks 11 and 13 uj the Rcijulalmis as to tiro shifts niudiwj each other cad on or neurlij end on. At the CouiiT AT OsnoRXE Housk, Isle of Wight, the '30th day of Jul i/ 1868. PRESENT : The Qi-EEx'rt most Excellent JIajesty in Conncil. Whereas hy "The Merchant iShi])pini; Act Amendment Act, Sec. 25. l.S()2," it was enacted, that on and alter tlie fh'st day of June, one thousand ei.Ljlit liundred and sixty-three, or such later day as miglit hf fixed for the purpose by Order in Council, the regulations con- tained in the table, marked C. in the schedule to the said Act sliould come into operation and Ik; of the same force as if they were enacted in tlie l)ody of tlie said Act ; liut that Her ilajesty might from time to time, on the joint reconnnendation of the Admiralty and the lioard of Trade, by Order in (Jounril annul or modify any of the said regulations, or make new regulations in addition thereto, or in sub- stitution therefor, and tliat any alterations in or additions to such regulations made in manner aforesaid sliould be of the same force as tlie regulations in the said schedule : Antl whereas by the same Act it was further provided tliPt when- Sec. 58. ever it should be made to app.ar to Her Majesty that the Government of any foreign country is willing that the regulations lor preventing collision contained in table 0. in the schedule to the said Act, or such other regulations for preventing collision as are for the time being in foice under the said Act, should apply to the ships of such country when beyond the limits of British jurisdiction, Her Majesty miglit by Order in Council direct tliat such regulations shall apply to the ships of the said foreign couutry whether within British juris- Sec. 61, diction or n>i! ; Mitd it wa* further provided by the said Act that whenever an Order in Council liad bee n issued applying any reguhi 826 AITKNPIX. lion nKulo by or in pnrsaau.e of the said Act to tl,. ^^^^ ^J^ foreign country, BU.h Bl.ips should in all cas.s an.ni, ni a v t^ court he .leemed to he .uhject to .such re,nlat,on, and .houid loi .he purpose of such re,ulatinn he treated as if they were Lnt.sh nh ps . And whereas hy an Order in Council n»ade u. pnrsuan.e of the .aid recited Act, Ll dated the ninth day of January one housand eight hundred and sixty-three, Her Majesty was p eased to direct First, that the re.'ulations containe.l in the schedule t<. the saul Act slu'uld he niodif.cd hy tl,e suhslitntinn for such regulations of certain regulations appended to the said Order ; • , n i „ kcoiuUv.that the said regulations appended to the sai r.l. .hould on and after the f.rst day of June one t u.usand "« >t Imdiu and sixty-three, apply to French ships, whether within Bntish jurisdiction or not : „,„i„ iTm- ^ And whereas hy several Orders in Council subsecp.ently made Hi Majesty has heen'pleased to direct that the regulations m-^'^^^^'' the said Order of the ninth of January one thousand eight hund d !u.d sixty-three shall apply to ships of the following countr.es, whether within British jurisdiction or not ; that is to say, Austria. Argentine Eeinihlic Belgium. Brazil. 15reiuen. Cliili. Denmark I'loper. Equator (Hi'puhlic of the). France. (ireat Britain, (! recce. Ilaiuhuig. Hanover. Hawaiian Islands, llayti. Italy. Luheck. Mecklenhurg-Schweriu. Morocco. Netherlands. Jsorway. Oldenburg. Peru. Boitugal. i'russia. Boinan States. Ru.ssia. Schleswig, Spain. Sweden. Turkey. United Slates, Seagoing ships. United States, Inland waters. Uruguay. An.l whereas Arth les 11 and V.l of the said regulations appended ,o ih.. said re.ite.l Or.ler .i the ninth of January one thousand eight 1,undred and sixtv-three, are as follows ; that is to say, \,ti, le 1 1 " If two sailing ships ar.' meeting end on or nearlN ena .. on so as to involve risk of collision, the helms of both shallbe put c. ,o port, so that each may pass on the pnrl Mde oi tlu- otliei. Article 13. " If two bhip.^ under sleani are meeting end on or mi AI'PKNDIX. 327 " nearly eml on, su as to involve risk of collision, the helms oi' both " shall 1)0 imt to jiort, so that each may pass on the port side of (lie " otlur." And whereas there has been doubt or misapprehension concerning the etl'i'Ct of the said two articles : And whereas the Admiralty and the Board of Trade have jointly recommended to Her Majesty to make llie following additions to the said regulations for the puipcjseof explaiiing the said recited articles, and of removing the said doubt and misapprehension ; Now, therefore, Her Majesty, by virtue of the powers vested in Her by the said recited Act, and by and with the advice of Her Privy Council, is jdeased to make the following additions to the said regulations by way of explanation of the said two recited articles ; that is to say, The said two articles, numbered 11 and 13 respectively, only apply to cases where ships are meeting end on or nearly end on in. such a manner (fs to involve risk of collision. They eou- sefpiently do nut apply to two ships which must, if both keep on their respective courses, pass clear of each other. The only ciises in which the said two articles apply are when each of the two ships is end on or nearly eml on to tlie other ; in other words, to cases in which by dmj each ship sees the masts of the other in a line or nearly in a line with her own ; and hy niijlit to cases in which each ship is in such a position as to see both the side liyhfs of the other. The said two articles do not apply bij daij to cases in which a ship Sees another ahr'ad crossing her own course ; or by n'liht to cases where the red light of one ship is opposed to the reil light of the other ; or where the green light of one ship is opjiosed to the green light of the other ; or where a red liglit without a green light, or a green light without a red light, is seen ahead ; or where both green and red liglita are seen anywhere but ahead. 0. Mkrchant Shipping Act, 1873. ClIAPTKK S5. .1(1 Act to Amend the Merchant Shipping Acts. Sections relatinij to enyayement and discharije vf seamen and cases of collision. [5th Au'jiist, 1873.] 1, This Act nuiy be cit<;d as "The Merchant Shipping Act, 1873." Short title. 828 (•.)ii.-lnicti(iii (if lliu Act. witli suiiiut;!!. CmnptMisiitio 1 to SCIlllKMl fill' llllMOCCSSMiy ilctciitiiiii nil cliai>;o lit' dosoitiuii. rower for iilcr Mijrsty, !■>• Oriioi- ill <.'oiiii- fil, to apiily loitiiin [U'o- visiinr; of Mor- cliMiit Sliipliiiig A'.'ts to foioigu sllillM. Duties of mas tti's ill case of collision. Arri'.MUx. 'Hiis A. t ^hall l>c roiislmc.l as ,,.,(■ with " Tli.' M.ivlmMl Sliiiii.in- Art 1S.-.4," and tlie Ads uiiiwiain- tlu.. sanu-, an.l the sui.l Ads and this' Act niiiy lie citcil ci.U.Hlivcly a* "The Mi-vchaut Shipinn;,' Ads, ^^7 Any WAXvvumd with a seaman made under section one hundred uu,lfurty-nine.,r "The. Merchant Shii.iiin,!,' Ad. is.-. I," may,. nsteadul .slalin- the nature an.l duration of the inlemU'd voya-e or ei^iL^e- ,„.Mit as hv tluvt section re,|uire,l, state the maximuui IH'rmd .H tlie voyai^v or en-a-ement, and the phice.s or parts of the worUl ^d any) to which tlie vovii-e or enj;a-,'ement is not to e.Uend. <) ir a seaman or apprentice heh.n-in- to any ship is detaine.l on ,v charoe nf desertion, or any kindred ollence, and if upon a survey of the ship beiu- made under secti.,u KWeu of "The Merchant Shipping' Act, 1S71," it is prove.1 that she is not in a tit condUmn to proceed to sea, or that her accommodation is insullic.ent, tlie owner or master of tlie ship shall be liable to pay to such seaman or apprentice such compensation for his detention a.s the Court, havni- cognizance of the prtjceedings, may award. 1 1 Whenever it has been made to appear to Her Majesty tiiat tlie oovernment of any forei;.,^! State is .lesirous that any of the provisions oi " The Merchant Shippin.^' Acts, 185 t to 1^73," relating tothe engage- ment and discharge of seamen, shall apjdy to the ships ol such State, Her Majesty may, by order in council, .leclare that such ol the said provisions as are in such order specified shall, subject to the limitations (if any) contaiiud in the order, ai-ply, and thereupon so Ion- ns the order remains in force, such provisions shall apply, sui.iect tothe said limitations to the .ships of .such State, and to the owners, masters, otiicers, and crews of such ships, when not within the jurisdiction of such State, in the same manner in all lespects as if such ships were llrilish shij.s. It shall he lawful for Her Majesty from time to tunc, by order in council, to add to alter or rep.^al any order made under this section. . , ,, , ., ;. In every case of collision between two vessels, it shall be the ,iy of the master or person in charge of each vess 1, if and so iar as he can do so without danger to his own vessel, crew, ami passengers (if any), to slay by the other vessel until he has as- certained that she has no need offurther assistance, and to render to the other vessel, her master, .rew, and passengers (if any), such assistance as may b. practicable and as may be necessary m order to Bave them from anv danger caused by the collision ; and also to give to the master or person in charge .d' the otber vessel the name of his own vessel, and of her port of registry, or of the port or place to which she belongs, and also the names of the ports ami places from which and to which siie is bound. If he fails so to .lo, and no reasonable cause for such failure i.s AI'ri'.MUX. 829 sliowii, tlie I'ldlisiou shall, in tin; iilisciu'c dt' iiroof to tlio coiitniry, bu (leeiiiuil to liavi; bi-i-ii civusud liy his \vioii<^l'ul act, iifgh'ct or tletiiult. Hvory master i»r piTson in char;^'t: of a Britisli vessel who fails, without reasonable cause, to iviidir such assishiuce or give such inl'oruiatioii as aforesaid, shall be deemed guilty of a misdemeanour ; and if h(! is a certiru;ated ollicer, an imjuiry into lii-i conilnct may Ic held, and his eertilicate may be cancelled or susj)ended. 17. If in any case of collision it is proved to the Court before Li;iliilit.v for wliich the case is tried that auv of the re'-ulalions for ])revi'ntin,^^ iiilriii-.Mi.nt " ,. . . Ill n'j;iil:illiiiiH Collision contained in or made under the " Merchant Siiipiun^^ Acts, j,, ,..,j^^,^ ,jf J^r)4 to KS73," has been infringed, the ship by which such rej,'u!atioii collision. has been infiin^'ed shall be deemed to be in fault, unlrss it is shown to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary.* P. Tni: Lakks nut Ln'land. 27//t Jalij, iSocS. OPINION OK THE SLU'lJEMK COURT OF MIClflOAN, «.< to irlii:tlii:i- the U'cHtfii Li[l;i:s nf Xnrtli Anwrica <(rc IiiIkiuI, irilliiii. tic, mcaainj nf A'l.i of L'oiojtxsa of tJu: United Slides, in the case of Till; A.MKHicAN TuAN.srouTATioN CuiU'ANV, I'ia'uitijf ill Krnir, versus Mooiii:, FooTK AND Company, Dcfci hints in Error. lyioore, Foote & Co., of Detroit, sued the Anu'rican Transportation Company for the iiou-delivery of certain goods contracted to be transported by the Coni[iany on Lake Erie. The goods were acci- dentally bullied on the i>ropeller Spaiilding, belonging to the com- pany. The niiiin ground of defence was that the goods were thus accidentally burned, and that under the Act of Congress providing that ve.ssel owners shall not be liable for the loss of property thus accidentally burned on ship board, the conqjany was not liable. The Act of Congress, however, contains a provision that "this Act shall not ajiply to the owner or owners of any canal boat, barge or lighter, or to any vessel of any description whatever, used in rivers or inlaml * See the cH'cct given to this piovision in tlic case of Tiio Ililierni.i, (letoi-- iiiiMoii ill liie Piiiy Cijini^'U, cm tlm .'itii i-f De»'(.;ubcr, li7i, uyun an iijiiicd iiom a judgiucut of the Hiyli Court of Adluirah.v. * 330 AIMMAMX. ..u'l.i.dlnn." 'I'hf c:ie oarlv authorities it is clearly intimated that tire is not a peril ot thecals vet as no case arose calling for the airbculion of the doctrine,' ii seen>.s to have been lost sight of for a long tune. In 17S-, ihe first reporte.l decision occurnd, holding inland carriers liable for lo.s bv tire. Forward r. Pitlar.l, 1 T. K. 27. in 17bG. m con,seMUence of "that decision, the statute 2(i deo. 111. ch. 8(, was l,a. (which wan an earlier Act, tending; in the same diiection), were tleclaied to extend to Ireliiial. The olijeel of all this legislation is said in (iale /•• Lawrie, 5 15. & C. !.')(», to "enconia^;e perann.s to become owners of shii.s" Holland had, at an earlier day, ])a8;ed, abandoiiin;,' their ship and freij^dit ;" in this respect conformin;^ entirely to the En^'lish statutes and tlie Act of Congress in all cases except lire— if, indeed, that is an exception ; and such is the j^'eneral maritime law of Euroi e, 3 Kent's Coin. 217, 218. It is worthy of remark that, while by the Eiij^lish and American statutes, a liabilily to the extent of his interest in the vessel and freight is retained against the owner in all other cases where there was a common law liability, the exemption against tire is absolute and entire, l.ut while collusion n.i.nht exist in other cases, lire oii sbiiiboard could very ra!'.'!y occur designedly ; and, inasmuch as the maritime hiw reipiires goods generally to be stowed below deck, the vessel would commonly be destroyeil by any tire which destroyed her cargo, while in other cases, where damage occurs not within the legal exemptions, the vessel may, and usually does remain luidestroyed. There was no liability for tire without negligence, by the civil law. Hunt i>. Morris, (i Martin's L. 11. ()7(). It can re- 'i '"^^^t""' or iiuirin.r, ana -.ir-i..l.iv4 wnuM always prompt .Hhi,. owimms to Hrl.Tt rc'lial.lr ..lti.:..rs aii.l crews. Thure was -real injiisticu m l.ultliug th. innoc.nt owin^r lor .ui.ttor.s .ntir.ly heyon.l his control. Wl.ile, thurflore, tl,. n.asler was «lill l.^lt, in most c,a«i's, habl.' as at .onm.on law, ll.. owner was nia.!. exempt. I'.ut IIh- reasons whicl. ma.k. sudi a relaxation necessary or cxpe.ln.nt n. tl>e ca,e of vessels enKn-nl in niariti.ne commerce, -lid not api-'y wiH'/" luneh l-ore. to tl.e excepted 114. The elas^es name.l in the except n.n are all sn.all vessels of hnrl' -n. ineapahle Iron, Iheir nature ol withstamiin- the i».rilH ol' tl>e sea. and never in laet exposed to them. Thev are not re.pured to he navi-ated l.y expert seamen, and are nevVr, or hat rarely heyon I the reach ol" their owners, or of «ii.r ur in peril. It will he found that in the iM.-hsh t ourt.s i„r these and other reasons, A.ts have l.een repeatedly construed with reference to one class or the other l-y the character ol the service or the .lass of vessels de.signated, where the '^^'nvr^i^ terms used in a.l litin,, would, in the popuhu sense, or with am.ther ccmtext, endnace hutli classes. The ca.e of Hunter v. McU..wan a ready referred to, held that the Act of -M (Jeo. Ill, was inapplicahle to ji.diters, althou-h the terms us.mI were '"any ship or vessel. liut not onlv was the term " ship •' the ^overnin- phrase, trom which a liu, inient n.Uht be drawn that "vessel" m..vnt snmelh.n- ol kindred employment, hut the Act referring to hills ol ladn.-, masters an.luM.iners and shippers, and providing' for an apportnmment ol loss in certain cases in a court of equity, the inference would bo almost irresi>tihle that the Act had referen.e to nuiritnne business, because all the phrases are maritime. The ori.^dnal report ol this ease is not at our command, but it is frequently cited, and evidently Wild upon this ground. In lUandford c. Morrison, lo »^ B. !!■ '"■'. under an Act which required a certain t=cket or certificate for all coal .lelivered in London " by any li-hier, vessel, barge or other crult," it was held that a coal-bii.^S which brou-lit coal coa.stwise Iroiii New- castle, and delivered it at the wharf, was exempt from tlu' penalty ot the law, which was held merely to apply to such vessels as were us.'d to uidoail coal from others, an.l did not apply to vessels lu whicli it was .ai.'iuallv shipped. The discussiim is -luite full and instructive In B.,'nyon v. C'reswell, 12 Q. B. K. 8!)!>, it was held that a vessel under 1.-. tons burden couhUiot be registered ami that the registry was void. It had been registered, ami the law required every transfer of property in a registered ship or vessel to be by a bill of ■ ale reciting the registry. N» sliip was by law io be .leeimd a British ship without registry, but British Imilt boats and vessels AlM'r.NDIX. '.V.\-\ mid.Tir. torn, owiu'.l anil iiavi),'MtiMl by M\\A\ siilijccls, wnc to l>o a.ln.ittLMl to be liiitiHli in uU luiviKutioii " in Ih.' livciH uimI n\»'n lli.- roiiHtH of the Unitvd Kiii-.loin." Tlu; Curt l.rM tliiil, no v.>s..l under 1.') tons could Lu ie;4i^ti^i<'.l at all. In l{.-,'ina -•. HmmI, -K Eng. L. and En., \M, it was d.-cidrd that an act ioiliiddin- any ]MTson, nota freeman, to "net ns waterman or li-liternian, or navi- gate uiion the liver Tli;ini.s Wtsv.rn Windsor and Vanllett Creek, any wherry, lighter, or other erat't," did not exteml to a j^leuni-tuj,' ; ulllHaiKh i.y Tisdale v. Comhe, 7 Ad. v^ Kll. 788, Acts with a dillerent woKlin^' had heiii made apidiiahle to jiassen-rr and frei-ht river steanuTS on the Thanua. Tiie case of Heed /'. InKhain, 2(i EuK. L. and E(i. I(i4, holds the same doctrine witii UcKina r. lieo.l, deciding' that the general words mint he coulined to vess.ds k.icsDKM UKNKIUS with those named, and tliat a -team-tu- re.,uires diliereii! ami greater skill to manaf,'e it in its on upation, from tiiat re.|uired fur whenirs, lij^hters or similar .raft. These cases all tend to show that such statutes, when mentioning,' expressly certain classes of vessels, and then using general words, intend to ni-jdy the latter to ves-ds ,ji(sd,iii ;/,»./•/«, either of build or business, and not to exteml the lanj^uage beyond. IJesides the well-understood meaning of " inland navigation " in England, and the natural inference to be drawn from the use of the vessels particularly name.l under tlu' rules laid down in the eas.'H cited, some light may be drawn from the course of the English courts in dealing with kindreil maritime (luestions not inmiedialely applicahle to thesu st;itutes so far as the ex( viitions are concerned. In liattevsby r. Kirk, 2 liing. N.C. 584, it was held that Ireland was n iilace '-'beyond seas,' in regard to the Bristol D ck Acts, as it had previously been decided under the statute of limitations In liavison r. Mekifben, (J Moore, ;3b7 (S. C. 3 13rod. & Bing. l\-2), it was held that a v.'ssel engaged in general fieighting between 15.dfast and Lomhin, and w' ich at the tin>e the ,uestion aro>e was proceeding down the Thames h m London on her way to Belfast, with a general cargo, was neither a "casting vessel" nor "an Irish trader, using the'" navigation of the river Thames as a coaster." The statute of G Geo, IV. c. li»7, ihn tared that hireafter all trade by sea from one part of the I'nited Kingdom to imother, or from any part of tlie Isle of Man to another, should be deeme.l to be coasting trade in any matter relating to the trade or navigation or revenue of the realm, ami all ships while employed therein should be deemed coasting "ships. The (.'nstoms Act of H.& 9 Vict. c. b«, s. 11:5, contains the same provision.s. In Shepherd v. Hill, 32 Eng. L. and K^. o:i3, it was held that vessels running between a port in England and the Cliannel Islands were not coasting vessels, because, although subject to Great Britain, they were no part of the realm, and were not within those Acts. An.i ^^■h■^ r- a ves:.el had c(mi.- from > ahutta to .Mil I Ai'i'r.vi>ix. |„„„l,,„.aiHl tl.-H' .li-flmr-iMl l.cv .m.-... un.l \hv^wr ]ollo>k, IS Knj,'. 1-. and V)n-ideied as constriicUvfly a part of the ^lip, and that the K"<>'I.- I'li^l't thus he .leeiued " on hoard." Th fourt, however, caid, '< It cannot U: said that the li^d.ter was a part of the shii. at the time. It lieloti-ed to other proprietors, and wa.s emi-loyed for the i-arlieiilar purpose ot loadiii" hy the owners of the liarbaia. To hring a caso within the Act, the tire must, I think, ho on hoar.l the vessel which is the la'opcrtv of the owners, and that wa.-^ not so here. A^ain, the t,'oods were not on hoard the ship of whieh the defendants were the owners.' And jiul'inent was ^iven for the plaintin's. This case leaves it somewhat in .louht whether, if the i^oods had hecn on hoard of ii iinhU'r or shallop helonj^ii.K to the ship, they might not have been ,onsidere.l on hoard within the Acts. The case of Johnson /•. Benson, 1 r.rod. & B. 4.')4, inclines that way upon another class of liahihlies under a hiU of haling. Ju.lge Curtis, in the Manufacturing Co. v. the haniue Tangier above r* ferred to, decided in c.uforiuity with :^forowood r. PoUock and Oatlilfe v. Bourne, that goods burned upon ii wharf were not within the Act of Congres.s The whcde current of decisions in the TCnglish Courts tends to show that the maritime business has alway.s been regulated as entirely distinct from anv other, and that the immense trathc in the narrow Rcas has not beeii allowed to be withdrawn from its proper character as sea-oing romiinrce. So far as the t.rm "inland navi-ati(m " is concerned in the English Acts, no serious ditti.ulty could arise upon it. Kvery harbour in Kn.uland is within the body of a comity, while .^n .,^..^{,,,.,:,„,,,j,!,. ,,(■ l,:u.l„,ur. are pMrt of the IliJl Seas, ami under the juiis.liction of the A.lmiiahy. Li-ht'is. baizes, and ranal boats Ai"ri;Nnix. aao lire all iiilnml 'inl. ui.liln all tlnMKI(iiiti"U.-'. Tlu' wrili'P fii Kli^li-1' cnriiu,.!.. i.ll IivMt ol' iul.in.l iiaxbili..,/ an aaVuA i.n K,v Hiiiullof iJKht lioal.s, an. I .uiiliiinl l(, livfi.-*, (iinal-, aii-l hlicaius ,-lii. liv l.unl Huardi'il ; aiitl tlic (liTi>^iuiiM liavu iiivariaKly cnuiiliil luj«iMliir tht- cla«H nf vfHscl.M and tliiir i.i(ii>ir •nn-loyiiuiit, with tlio lau^fuajif oi tlic Act« of I'ailmmcnt ai-iiluiaMe to tlu-m. Tin.- cua^^tiii^; tiad.' !:* lU'lliied l)yfv a iradi' liy wi^a, ami I'liiliraciM now, w wu liavf seen, niucli l.usincH.> tluit, 1 lore tliii UfW law.-<, wan adiuiUy forcijanisli authnrities, and most natiuus have nc(iuifisc.'d ii. • .en- cUum of toll for eiiteiing it ; yet no one would regard its navigation as iu any .sense inland navigalion. The Mitli- terranean, and even the Adriati';, although geographi ally iuiuud, are not so commercially. And the old Eugli.sh claim that all the narrow seas were, close seas, and subject to British supremacy, mver removed them from Admiralty jurisdiction, or regarded .omunrce on them as inlaid commeiv;. The high seas conuu.ii.ed at low water mark, or at the mouths of estuaries and harbours, and n..thing was inland that was bivond those lines. It is very obvious that ina.smuch as all harbours (r\ct|il, peihap^, the open roads), are inland, the test of character could nut be wheth.-r a vrs.sel merely enti-nd inland waters in the course of its business, but must be found in its giii.nvl use. The object of the law being to build by general maritime commerce, we have to look to that for a criterion. The vessels not embraced by the terms 'f the Act are all of a class, p^ culiarly adai)ted to inland carriage. They are boat.* of bunlen uusuited to' the op.n waters. Yet it might well hapi.en that larger vessels may be employed at tinus in strictly inland commerce, and if so, tiiey would un.loublr.ily b.' hehl by their tradr. A general rule is neces.sary, aial the rule is easily and simply applu'l to "the ordinary occupation. A vessel running from New Yorl< to p.,,^.,,,, i^ ji si,:,,^,,i!i,_r wsstd, allhnugh bulh her termini are inland. 880 Ari'FNIUX. A liiivlMUV li-liti'V i^ ii'it •ii ii>ih\'^ VP~st •1, iilllionyli slio in.iy nt tiiiu In- (iut>i(li'(it' tl liai •llnllV. Till- Em,'li^l> Couil^' liave louml no (lilliculty ill lllilkilljj; surll ill Arts, llif ciiU'stimis iiic ol A'-vicolMilica'tv ivffiivil tl 1, at.i.li'Titiniisof tliolaw. I' n>hv llu lic'iiii-nl orcurnni'f. Til case (I rilc.t f 111 ilso llie case uf Hunter r. M.Cowati, •til Acts, wa: cliaractor. hi il-Xm:\ r T 11)1 lie, ;<»• Kn:4. 1- !■: lllr.-tlnU W lu'th a \> (•aini iiiailr tddciicinl iqioii her actti .illli.mi4li the term " wt'steru I'ar-e iqiiily, ill the \»^\ ailar SfllSO iiieanni;^. the Aet ni' C'lmyr. And in the United States District Cimvt hii I'Xcmiitin^ uithiu the Thanu'S Kivcr il anil hahitual ..mi liiynient, ;ht to he ai'iilitd to her, did s the Court lu^hl, in its h-al this district. f.Trv hoats i'voiii tlR. riiiuirrinents siiU hut not, a: iipi diu'd to general jiassi ■ngcr steamers, was iistrued to exmii't ho it and .'.nevallv used a. ferry hoats, although temporarily emi ilovi'd i,n a slmrt trip o itV fron : i'errv rou tc, hut in business .luite Him ilar to RM-ria^e. ri'iiuire of hoats uiion s It \va>i held the law eou Id not have hcui hcun intended to •H" hut a hrii'f time, ai: Jiurt iMUti's, where l lassenuers were oil l)oard d needed no ex tensive accommodations, the same rules which i^nverned steamers w liich went on Ioniser trips, and where tlu Te was neei il of lonveinences and safeguards. (U. 8. Ottawa, 1 Xiwherry' Adm. K. r):50.) A similar rule was .11 th died t( such hoats in relereiice Stat to re''i.-trv ant ■s Court ill Mi^.-iiies of cuiiimevce .,.,.,1 Al'l'KMiIX. 337 ' in;iy at I'liUllil 111) Ihr rili.t se (if the K( idWMll, ,. ainl lv|. iii'S Kivcr [luyiiieiit, lici', dill 11 its IrL'al is ilistiii't, uirriiK'iits ■mill lioats eiuiilovcd ite similar itl'lllllll to J on hoaitl , till' same ami wliLve S. r. the applii'il to l»y Uiiiti'd loat JaiiK's II ffiry lioat il dilliculty navigation, I. triit Court •V I'oal oil il rlion ot tlie ia^i' WHS on tiler luamli tsol' Tarlia- icli api'ly to isiviiiii^' tlie lirll tills hiw 1 legislation ui,'al inteiid- y individual ^ ol'Congn'SS II upon tlitnii vessels l)ein<,' tlie coasting icrease.'.l. })ro- vi.siou was made for spefial enruluieuts, wliiuli would iiurmit vessels to be eni^aged in either coasting or foreign trade, and no registry was reijuired. This in no wise altered the luivigation laws, otherwise than to favour lake navigation by opening the foreign trade to en- rolleil vessels. (U. S. v. the Margaret Yates, 2S Vt. K. (i(ir>.) In 1845, Congress by statute extended the jurisdiction of Admiralty over the lakes and their connecting waters — a jurisdiction intimated by the United Stales Supreme Court, to have existed without legis- lation, on account of the char.icler of these waters. (Fitzbugh v, the Genessee Chief, 12 How. 4V.'>.) The registry law passed in ii^oO by Congress (9 St. 440), re [uiring transfers of United States vessels to be recorded in the Custom Houses not only applied to lake vessels, but has been held l)y ttiis (.'ourt to exclude State h'gislatiou on the subject. (Robinson v. Rice, 3 Mich. :2:55.) The steam-boat insprc- tiou law of 1838, for preventing accidents on the water, was made in express terms to require of lake steamers on the great lakes the same s ifegiiards prescribed on the ocean (5 St. '.iOb). It is well known that tlie enactment of this law was procured on account of fatal accidents on Lake Krie. The steambo. *, law of 1852 is in terms a mere amendnieni of the law of 18;)8. The jiasseiigcr steamers on the lakes are by that law left on the same footing with ocean steamers while ferry boats, tug and tow boats, and steamboats, under 150 tons, em|)lo}ed on canals, were exempted entirely from the ojieration of the statute, and river steamboats of ill sizes were partially exempted, being reipiired to have but one life lioat. (10 St. G2.) In 1851, when the Act to limit the responsibility of ship-owners was jiassed, the lake commerce had been placed by the prior legis- lation upon ;he same footing with that of the ocean. It had been recognized as subject to the same dangers and partaking of the same character. The loss of the Lexington by lire, on Long Island .^ound, and the decision (d'tlie Supreme Court on the liability of her owners, in (i How. R. 344, were the immediate occasion of its passage. The peculiar interior position of the Sound had, as early as 17!)5, caused a special enactment to be passed exempting vessels crossing from Long Island to Rhode Islanil from the rules applying to vessels trading between districts nijt ailjoining — a provisitJii similar to that which, ill 1831, relieved lake commerce from like dilliculties. AVe might well suppose that a law drawn up under such circumstances to exonerate shiii-owiiers would not stop short of providing for all cases of the .same character. After the broad legislation regulating our lake trade, and considering its true character, which had certainly become somewhat prominent, we cannot be warranted in hoMiiig that a statute applying or meant to apply to the jirotected waters ui the Sound, is inaiiplicable to the more exjiosed navigation of tlie lakes, on the ground that such navigation is inland, unless such a llieauing is very clearly to be derived i'lulii tliC lelm,-! of IJie Act of i 838 APPENDIX. (_V,„gre.B. Let us, theivfoiv, ..e whether there i. any other and, if «o, what iulaml navigation to ^vhich the hu.gnage .. '>1'1'1- -Ue It i. verv clear that where conunerce is conhued cxeluMVely o the territory oi' a .ingle State, ('.a.gre.s. ha. no control over .t. (Uihho s ol.lJn,9 Wh^at. l; Milner .. N. J. R- H. C^.-., Am. Law Keg., Nov 185 .) The great canals of New York, Ohio, In.hana, Ilhno. !!;:Pennslvania'and nu.eh interior river -"Kafo,. con. nn e the head of local and -lon.estic commerce, an.l n.ay ^'^ ''^Yv Inded in thi. exce,tion. The Lusine. referred to hy U.e 1.. re Court of Missouri in the ca.es cited rs ot the .mne kn^ B . have also several large rivers which are t.ot n>lernal a. la. a. mu It SHtc. are concerned, and yet are inland in the sense ot he.ng ent.rely ;;;.;! l,yland wlt-an the Republic, and -paUe o beujg nav. gated in safety by any description of boats or smal era It. ^^ . ye tnnv lar..e and inn-rtant harbours where hundreds of hghters, tug>, " . a:d stcan.ers of various sizes are plying constantly u. a purely md service, but subservient to Toreigt. trade, or tha b..,wee,x S at s We h ve also in several places canals entirely w.tlnn smgle "^Z, whid. are used to tacilitate the pass,.ge of n vers winch p>B thronhdillercnt States, to avoid rapids -<^ '""-'' 77^_,;;,;°:; tinuons navigation. Son.e of these 3n.rs are on ^^^^ ,^ States, and divide them; others are witlnn smgle States, but a.e iwed in commerce between different States. The Ohio and Mississippi are boundary strean.s ; the M.Bsoun tr.ve ses one State an,l bounds others ; the Delaware the Sus^ue- irthe Potomac, the Tennessee and (;mnb.rh.n R.<^ ;u.d several others, occupy sin.ilar positions, wlule niost ol the Ihu so au he whol of James Uiv.r, and several other streanm, sud. a t Saer ,neuto,and many more, are within single States, and yet ■n t " unner'ce from ti.le-water. Upon all of the.e strean.s t ere important eon.nu.rce within control of Congress, and aws uu . m le expresslv with reference to it. Canal boats have V^en d"u- exempted flon. nuuine hospital taxes, and from the on u.ary ho re.dst V, enrolment, and licence ; and they cannot be hind ed .A .,es" This is the ease even when their ternnnus and consuler- 1. : rtions of their passage are in tide waters. (13uckley . 1 i.btlv's Di" U. S. Laws, 305.) Their .Tews are not entitled :::: ; tStii ;:^ef. m tu. ...... of this isveiyobvi... ^ ; ugh ' ithin Congressional Jurisdiction, the.r on-ploy— "t Lritimo. Roats and lighters without masts, or .1 masted not k;X-.ph.yed in the harbour o, any town or ^7;-.-*;-^^ 'v<.nn.l'.d from the enrolnunt and licence acts. (1 St. .5 , , ,Ab.) 1 r; ::;i!eid tha,, ..i barges on the ^-!^^^^.^^^^^ ;::^ .ithin Admiralty Jurisdiction, (^"uos . Cn.cnnati . oal Co., . Am. vl.f»! > The Steamboat Inspection Act docs Law Slated, apply to tugs no or towing boats, or ferry boats, or can, ArricNDix. 339 er, aiul, if il.U'. ■I'ly to tlie (Gil)l>oii8 Law HcK-> a, Illinois, jiiie under • have liL'CU he District I. But we xr as siiij;U' ii.m'ntin'ly Deing navi- ■\Ve liavu filters, tu^'s, in a iiurily at ln'twcen illiin single wliii^h pass ■aiis ul' coii- ; l)oi(levs of tes, Ijut are he Missouri the Susijue- Rivers, and tlie Ihulsuu aniB, such as ;ates, and yet streams there id hu\s have ts have l)eeu the ordinary ot be libelled and consider- (Uuckley v. re not entitled very obviotis, iiiiploynient is ir masted not V, are entirely :U7,:il8.) It River are not oal Co., 3 Am- (it, as hasbt-en (oats, or eaiial steamers, and roi[uires but a sin^de lifeboat on the lari,'eHt river steamers. And the Act of Congress of 1845, wliich extended Ad- miralty juri.sdict inn over the lakes and straits between them, did not undeilake to do so over our largest rivers. And whether courts have done so or not, the course of legislation has certaiidy yxtin^uished tlicni. And the deeisiop in the case of the Genessee Chief does not, in fact, settle any (luestion of jurisdiction on any water but the lakes. In Jones r. tlie Cincinnati Coal Co., before cited. Judge Grier denies the apitlicability of the doctrine to any but enrolled and lii'cnsed vessels anywhere, and in referi'in,!.^ lo that case, intimates very plainly that it wa.i not intended to reacli river navigation Wiieii, therefore, after providing that " the owners of any ship or vessel" .shall be free from liability on account of lire on board, not occasioned by their design or neglect, the statute provides that " this Act shall not a])p]y to the owners of any canal boat, barge, w lighter, or to any vessel of any description whatsoever, used in rivers or in- land navigation," we may properly look to the existing legislation on such navigation to deteriiiine the effect of the Act. And when we find all the vessels named have been exempted from many of the ('uties and burdens common to other navigation, and when especially we tind such of them as are jiropelled by steam, exempted wholly ov partially, from the provisions devised to guard against lire, there is good reason for excluding them from .some of the privileges extended by Congress to other ve.s.sels. And there is in the character of the na\ igation itself, much to distinguish it from lake or ocean .service. T'lere is no danger of foreign competition in such trade, unless in a very few frontier places, and not much there. The risks to vessels, with the one exception of fire, are lighter, and when danger occurs, it is with less hazard of entire destviu-tion of the cargo. Danger from storms or wrecks on these sholttrtd vaters is comi)aratively trilling. The danger from '.'.re is greater fiom the light construction of the boats, an'ul tinlv on liie ocean, brd .ds.> on the lakes, the same 310 APPENDIX. Ship, have Wen ns.l ellecti -.ly tW tl,e .luul-le P-^-P-- "^ J*;;;;;^ peace. Our lake trade cnploy. great number, ot al.le . a n a . L-d for service on any ships or on any waters. Our nver ti j i^ „.o,stly .erved l.y landsnu.., or boatsn^en who would rate s u ou shipboard. Not only therefore have we a lar.e "^-;f ^"" , ^ *" i.aL,d, or of an inland cha.ac.er, which is subject o ^-H^-" regulation, and which n.ay easily satisfy the tern.s of >- ^^^' ^^^^ differs in most, if not in all respects, as much from luk , as .t cW fron> ocean business, both in its public and m Us private cha.aotei ^'BrSe navigation is not inland navigation in any sen. ^he lakes are not within the borders of any State, and, except Lake Mi,.hi.-an, are not within the United States. But therr border chara^er alone would not serve to make ^'/-'^''-^'''''^''^'''.^^'li'^ the scale of their con.merce. It is then- rntnnsic -ture and their position alone which characterizes their commc^-ce, but tl r position is also important in some views "^ "f "-'^ /"['f , Our courts have long since learned to disregard the -P -^^ -^;' that there is any radical diilVreiice between salt and fteshwa^ commerce. The old rule of the English A.lnuraUy, and it., reasons a T ri stated in the sea laws, in a treatise which is appen.led to Tl' e sAdn,. Reports: "In ,uju. DU.ci a ship may become a deLn'; but in Ihe sea, or in aQU. s.vi..v, bemg an arm of the seT hou.'h it be in the body of the county, yet there can be no deo- d ; I of tl,e ship, or any part of it, though anybody ^e drowned out o i or otheriise come by their death in the ship, l-ecause on such wa s ships and other vessels are subject to such dangers upon t^ r^ g wJes in respect .,f wind and ten.pest ; an.l this divers, y all u lie ent lawyers .10 agree in." (p. 7 1.) The reason is a sound one i .. m,t depend upon the freshness of the water, bivt m hnglaud '" eerily or imiversally coexists with it. The perils which are r erre to are as characteristic of the lakes as o the ocean. As in e cnessce Chief case (12 How. H. 443), the Suprer.e Court r err ng to the Act of Congress of 1845, extendnig the Admiral y 11 diction over the lakes, say (p. 4,53), " If tins law, therefcue i« CO t itional, it must be supported on the ground that the lakes an! a igabl waters connected with them, are within the scope o Idmiralty and mercantile jurisdiction, as known and understood n Ui United States when the constitution was adopte.l. It the mea^ - W of these terms were now for tlie first time brought before this cTrt or consideration, there could, we think, be no nes.tation in 8avin inland waters, would apply with e^ual force to tho*. h '.. n.peau valers which were the verv cradle <,' uuritiaie p -ver. A ad to .lo .0 and vet leave the nuvi.^atioii of Lon- island .Sound or,i of sucli a chissilicatiou would be to i-nore ...ery principle of couinu-rcial usage. . . « ,. Not ,.nlvlias t! e lake commerce been put upon a maritime iootini; by the navi^Mti.)!! liws,and by the deci..ion.s of Courts, but it, lu point of fact, is in ..U resp. cts nb ..luch so as that of the Baltic and Mediterranean. The Vessels us.d in its ovdiiu'ry uavigatnai are not only capalde of employmiTit, U.it are actually employed in trans- Atlantic -ova^es. While some, at least, of 1 !.■ lake fleet, w-Te brought ovf.r originally from Europe. For more tlian thirty years our government has been strivin- to secure the free navigation oi the St Lawrence for the purp-seof enablin- lake vessels to communicate with the ocean free from the i .strict ions imposed on them by the Ihitish laws. This privilege was claimed as a matter ot right by the Executive department in 183(>, ami was ]daced upon the ground tliat a right to navigate the lak.- md the ocean gave a corresponding cl dm to'navigate their connectin,' waters. xMr. Clay, then tfecretiiry of State, insisted that if the St. Laurence were regarded a.s a 'stniil connecting navigable seas, as it ought properly to be, there would be less controversy. And he proceds thus : "The principle .m wh.cli the ri-dit to navigate straits depends, is, that they are accessorial to those seas which they unite, ami the right of navigating which is not exclusive, but common to all nations, the right to navigate the seas, drawing alter it that of passing the straits. The United States and Great Britain have between them the exclusive right ot navi- gating the lakes. The St. Lawrence connects them with the ocean. The Ti-ht to navigate both (the lakes and tlie ocean) includes that ot passing from one to the other, through the natural link." (Corres- p.aidence of 182G, 35 NiW Register, 411 et »eq.) Mr. Wheaton has expressed similar views on the right to navigate straits (Wheat. Int. Law, 240, 250), ami applied them to the .iuestioii of the Danish Sound dues-concerning the right to which our government took ihe same gioui.d which liad been a-st-rted ou the St. Lawrence. I'.oth .piestions are now set at rest by treaty, and our Arrr.NDix. vpR^elsliavo tlio vij,'lit of l);lR^^aKL' to the ocean unmolested. (Id St. U. S. l(i!)l. Ileciprocity Treaty.) The hike coiimierce heiii):; in fact mnntinie in its nature, and havinj,' been thus reeof-ni/ed as such by all tlie departments of the federal government, and re<,'ulate(l as such by Congress, we cannot hesitate so to consider it in construing the Act in (juestion. And being satisfied that the inland navigation niinitioned in the Act cannot properly compreliend the maritime connuerce of the lakes, we are of the opinion that the plaintilf in error is not liable for the ].ro]icrty destroyed by fire on the projiiller !Si)aulding, such fire not liaving been caused by design or negligence ; and that the Couit below erred in charging the juiy that the navigation of tlic lakes was inland navigation within the meaning of the Act of Congress. 818 Q. VICE-ADMinALTY COURT, TIALTFAX, NOVA SCOTIA. The four following decisions were rendered at Halifax, Xova Scotia. Tiie three first have reference to the jurisdiction of the Ad- nnralty, and tlie last to the Dominion Act of 18(i7, accounting the ports of the Dominion to be " Home Torts" in relation to each other, and iirecluding the enforcement of a bottomry bond in the Admiralty. CITY OF PETERSBURG. 28th Januitry, 18(i."). TItc Court of Vice-Admirnlfy has vo jnrisdiction over n contract for itw/i'S diferituj from thcordhiary mariner's contract, an important jirinciple involrcd in the construction of the " Vice- Admiralty < 'ourts Act,im3." J iDGMENT.— //oh. William Yotmrj, Chief Justice, sitting as Jiulye of the Vice-Admiralty Court, Nova Scotia. The City of Petersburg is a blockade runner, plying between Bermuda and Wilmington, the voyage in question in these suits having terminated, in conse(iuence of the fever at the former of those places in the month of September last, at this port. Two of the plain- tiffs, Nicliol and Bailey, shipped, the one as chief cook, and the other as second steward, at Bermuda, for the round voyage, and were dis- charged by Captain Fuller, the then master, for alh'ged incompetence, at Wilmington, but were brought here in the ship, in obedience to the laws of the Confederate States. The third libeiiant, Joim Valley, 844 AIM'KN'DIX. wna sliipiud at WilmiiigtuD, as cliii'l' cdok, in ))la('c of Niiliol. Tlie ship It't't I'.rnniiilii on the i^'tli df August, and arrived at Wiliniiintmi on till! KJtli -was detained till tiie 2'.)tli nt (iiiaianline- lel> Wil- mington ai,'ain on the 5th September, ami arrived lure on the i;:th. ('a])tain Fuller retnvned in her, and letused to ]iay the halames* ehunicd by the three jilaintill's, He ajipears to have left this lor Knf,dand along with Mr. Caiuplnll, one of the owneis, in the steamer of iJilth September, a few days before these aetions were bron-ht. AVebb, ihe ehiof steward of the ship, appears also to have left before they were brought,— so that tie- two principal witnesses fur the defendants cduld not be examined. The libels exhibited by the plaintifls are in the ordinary form, but limit in the pchednles, as required by the rnle, a statement of the s'.inis rei'eived on aeeount ami the balances claimed to be dne ; these balances, however, appear in the atlidavits. In point of fact, Niilnd claims .«!12(l, Bailey $Si), and Valley !?12II, with the dilfereiice (,f exchan,i.'e and costs. The responsive alleviations in the time suits are nearly the same. The hiring alleged in Jidni Nichids libel. No. 210, was for ha/anlons services, and wages therefor said to have been jiromiscd in one sum of «ilS(), jiayable, pait on leaving r.crnunla, and the remainder on arrival of the ship at the termination of the voyage there or at Halifax ; while the resjionsive allegation jileads in the tir-t article, that the wages were payable in three sums each of lOD— the first on leaving Hamilton, the second on the termination of the voyage at l'>ermuda or Halifax, and the third as an additional lionnty, "provided the master was satisfied with the ]>laintilf's con- duct during the voyage." The second article of the allegation sets forth the incompetency of the plaintiff and his discharge therefor. The third alleges that the master was not allowed to leave the idaintilf, being a British subject, at Wilmington, but was compelhd to bring him to Halifax as a passenger. And the fourth claims the benefit of t lie 18!)th section of the Merchants' Shii)ping Act, 1854, the sum claimed by the plaintiff being under ioO. There are no other pleadings in either case, and by agreement the evidence taken in the three suits was to be used in all or any of them as far as it might be applicable. The three were argued together before the late JudLce Stewart, and a re-argument having been ordered by him on account fif the difliculties which tlie cases presented, they wire again heard before me on the 2iith and 21st instant. The first object of impiiry is the nature of the contract. This is common to all the three cases, the plaintift''8 counsel contending that, with some- variation in the mode of paynnMit, it is the ordinary engageuu'nt for seamen's wages, to be considered and dealt with as such ; and the defendant^ insisting that it is a special contract, and as such, not within the jurisdiction of this Court. On this very material point tlie pleadings, as we have seen, and the evidence are AI'PEMUX. conllictiii;-. TIicic! is s,mio ti.stinioiiy as to tlio us,i-o (,r tlu- liad,- ; H.'wral cmipaiiics, as w., know, l.t-injr euii>^^^^■,\ in the l.azanl.niH (ailuipiiscol \Audi:x,U- mnuiii- ; l,,,! Dunl.ar ^aystlial .vcv ..miiKinv ims Its own jiiia'H nnd mode of paymeiit ; an.l Wade tcstilius |)i„'l tlu^ way.s in tlu. Old Don.ininn and City of Petcsbui-, wlii.l, w.Tc owned by the same comi-any, weiv dilfcn-nt from tlio>e in oIIut ships. Nichol Hays tliat his wages were to he flHoin all, paxahje in iiM, oi which hr nreivcd §ii() in advance, "and the l.ahincc was to he luiid on arrival if tlu'v made the clear tri|,." He deni.s that it wiw o],tional with the captain to deprive him of his wa-.s ; "surh a thru-," lie says, " was not nunliomd when 1 hired; I should not have gone." Ilailey says in reference to this case, dilferiii- s,,mewhat liom Xichol, that at the hiring "three sixties were m.ntioned -one sixty when the pilot left, the r.miaimler on the termination of the voya^;e. . . . No condition," he adds, " was mentioned as to stopping' any part of our wa-es or anythhi- else. . . . Th.. captain sai.l he w.aild K,ve Mchol three sixties-those were the words he nsed-he said unthing about cotton money." And ajjain he savs, "Nolhiii.Mvas said about bounty or cotton money." Ah to his own hiring, lUuley says, "Tlie captain agreed to give me $i:i() for the voyage" jiayable fciiOa.lvance when the j.ilot left ns (which he admits having received) and .>:!s() on terminati.m of voyage." Nichol, confirming him, again says, "Nothing was said about bounty or cotton money— nothing more was said between us and the captain." No ship's articles were signed, on account, it is said, of the nature ol the trade, and Fuller and Webb being absent, there is no other evidence ol what actually passed at the hiring of these men. It is obvious, however, that something more either did pass or was under- stood between the parties. No such contract as is here represented was had with any other of the men either of the Old Dominion or the City of Petersburg. Nichol himself says " that the , ustom of wages was well understood among the men,"-an(l what that custom wa.i is almudantly proved by the witnesses for the defence. Jlr, Hull, formerly chief, now second, oflicer of the ship, savs, " The i^atj in ships of the class of the City of Petersburg is 3(i<»'for the chief cook when we leave port for the passage from Hamilton to Wilming- ton. If the man keeps on, when he comes back to any Ih-itish poW S il4G Al'PKM'lX. niiiliT Citin'r .i>. -iiiMTcnr.L'n turc, savw Ihc Kliip, iiiiil ii iM'tnir in lln' lulvcii- I'll.' 111(11 -liii^pvil lit r.<'niiU(l!i. uii'l wetv piiiil in mlviuiue till- lilnckMilcaiid iviuliiii^ 11 iifUtl'iil tlicy uic ii.iid tlifie (IS Ivv t.irill' ; iil'K'l' luiiiini;. :tl. lii.U v), witli i,„., , .,.,tHi.i(!iliu (onlfiUTii'v;, Willi II ciiij^'o, nicy air lioiiuty 1111(1 totti.i. nidiiey ; tlie cotton l.oimty is optional with the (■ai.tiiin-i.r..viac(l llie conduct of t1u-se men descivcn this ctton lH,nnty they a^-'t it, oth.-nvisi; not." " Coimcs of Uu- tuiill,"lic adds, •'were Mipidii'd to the chi.f oHiccr Miid i-ni^inccr." ('nptuin I'u-c, tin- muster ol' Die Old Domini.. ii, also -iiys"tliiit the ,:f<\- -iioncy wiispiiyiddcto the nun i-rovided they -iive hiUi-Iuc- liou ; thiit tiie honnty nysteni U i.erl'eclly understood hy the seiuiieii, asw.'u as l.v the imrty enK:i;,'in-, "hdi they en;4iij,'e." Thomas Puro 11. chief Rewind of the Old Dominion, im.duced a ' 'py of the tariff common to both vt-ssels, and which he read to the men of his dei-artmenl. The crew had one coj.y forward, and it was read hy Lowiick. one of the witnesses for tiiese idaintilf-, l-ul not examined tipon th - i-oliit. rnrcell nays that Mr. ("amphell, one of the wnx^- ni/ed owners, called him aft, and read the tarilV to him, and asked him if he was satisfied. He said he was ; and that was the contract the witness entered into. The tarilf from wlii( h the copy harked A was made, distin|.,niishes the monthly pay or adviince from the t\yo l),.unties pavahle on return, and at the foot says "Colt.>n money will only he paid to those whose conduct has sitisfied the rajitain, cliief enj^ineer, and mate." Now, it must he conceded, I think, to tlie idaintitfs, tliat the exact nature of this contract has not Iwen unmistakahly and clearly shown on the drfence. The oi)tioii of payin- the cotton money depends, nccorliiif,' to one witne.ss, on tlie satisfaction of the owners ; aecordin.,' to anothei on that of the master; and accoidin^^ to the tariff, on the coml.ined -atisfaction of the master, eiiixii/'er, and mate. D ill ai.so says "that it was optional with the ■ iplain to havedi^char-ed i.U the crI'W at Wilmington, and in that .ase they would have forfeited the rest of their waK^^s." J''«t ^^''''^ '" '''^' "l'*'^"'^"^ "f "W" "TticU a want which may he very injurious in such suits iu r,e owners, but is never allowed in this Court to oiierate against the si-amen), a certain degree of obscurity rests m- on this contract, it id impo-.sible to v- it.liiion the whole evidence, as an ordinary contract for mar, V wages. It sprang, a. 1 have already said, out of an cxcei)tional and hazardon rade, new in all its circumstances and relations, which has not been ^acked in ' ' lis case as illeg.d, but which ditlers widely from the usual conditiims, und can hardly be governed by the general rules entitling the seaman to his wages on performanc of his contract of service. (Abbott on Shivping, 658.) In the i.i-'! of the Riiby Grove, 2 W. Rob. 61, Dr. Lushington observes " that unb-rtunately whnt is or is not a special contract, no one has atteri;ii*ed to define. None of the deci.,ed cases have defined I AI'l'F.NDIX. ni] spcM ificully wlmt isas)ieiial rdiitmrt, aii.l iiiinii tlii- jM.int," he says, " I utii Ifft intirely tu tuv own jiid^^inciit." liiil liim.' of tlu< (Icti.ifd cases ivsfiiililt- tlii. sliall Huy notliiii^' of tlic (.hi iiutlioiitifH in Pniliil.ilion cili'd ii ■l.utt, und ju tli(! canr of tliu Svilmy Cnvc, 2 DoiImoii, 1-2. Of till) -in tliu Ailmirally- tin- (m-i » ulidVc iiiciiti'.iud of tlic Sydney rc.vciiiKl tin- liilliy Grove, lidtli (if tlu-m iiiv(dviii^' imrtiieifiliii) iransai'tioiiH ; the Isahclhi, 2 W. H(ih, 211, where there wuH a chiiiu for the viiluo of a slave in addition to the \va;.es ; the Mona, 1 W. Hidj. 141, where tlie proniovunt was to receive ii i^roHs wiiiii for proieediiifi f'-oiu St. Helena to Kngland and hi-i exiiensen ^Mck•, these und other I'a IS were not more (list inj^nisiuille from the ordinary mariners' contiact than tlie ]>re.sent, I think, niu.4 he held to lie. In niy view it (unnot he considered otherwise tha as a special contract, separable, it may Le, into jjarts, as was done in th • case of the Teciiniseli, :i W. lioli. 1()9, 144 ; but as it is pleaded in the responsible alle),'atioiis here and ai'pears in ]iroof, essentially a special contract. Now, there is no position better establislieil in the Court of Ad- miralty than its want of jurisiliction in such a case, till the juHsdu tioii was conferred by the Act of 18GI, the 24 Vict. ch. 1(1. In the Mona, decided in l^s4(», I)r, Lushin-toii said : " I.tjokin^ to the aulliorilies that have been cited, their elfect is plainly this, ' that when there is ' special agreement dilhiiii(,' from the ordinary mariner's contract tlii.s .art has no jiower to adjudicate, and the cognizance of tluMpiestion belongs to anolla i tiibunal." L(jrd Stowell decided the Sydney Cove on that ground. In the Debrisca, decided in 1848, he said: "the right of the mariner to sue is denied, not only upmi the ground that thei has been an abandonment of the voyage, but that his engagemeiil with the owners was in the nature of a special contract. This, I ajipre- hend, as far as this Court is concerned, is a fatal objection. I cannot find any authority that would authorize me to interfere ; neither do I see in what way I could [iroceed to ascertain what b the amount of indemnitication to which the mariner is entith;d for a breach of the contract. The matter lies entirely and exclusively within the func- tions of a Jury, whose functions F should usurp in adjudicating upon it." The rule was recognized also in the Irish Court of Admiralty in the case of the Enterprise, 5 Law Times Rep. (N. S.) 29. And in the same vcd., fol. 210 ; and in Lush. 28,'), is the ca-e of the Harriet, where the counsel submitted that any agreement by a maiiner dfhors the ship's articles, which are appointed by the legislali.ie, is a sjiecinl agreenuM.f And Dr. Lushiugton said: " wever dilferently the Courtsof Common Law may now be disjn , d to v^ ihe jurisdiction of this ('(,i:it fVoni what tliev Were in former .'i:::- , i nm bound by the limitatiiis imposed on my ]>iede(e,, wliicli will ri'U.i'ily tlm juriMdiclion of the Court, whiili in Iho prc-eiit case iiii.s Kiicnited with mwU liardHlii|i on tiic phiinliir," Tliis Aft I liiive ulreiuly referred to, and (sec. Hi) runs tliu« : " Ah to chiinm for wa^jes and for ilisliurscnients hy luiiater of ii sliip. Tlie lli>;h Court of Admiralty sli;dl have juri-diition over any chiini liy a Mcunu'U of any Hliip for wa^'es earned i)y liiiii on board a ship, whetlier the xame ii(! due iindt r a sjiei ial contract or otlieru ~e, and al»o over any claim hy tin! ma^ti-r of any HJiip for wa;,'es earned hy liini on hoard tiie Hhip, and for dishurMements made by him on ai'count of the siiip : proviiled niways, that if in any hucIi cause tlie jilaintilf do not recover Hfty iniuiids, he Hhali not lie entitleij loany relets, cliarj^es, or exjiense.s incurri'd by him therein, unh'H-i the judj,'e sliall certify thiit tlie cause was a tit one to be tried in tlie said Court." This section <;ivi's in express terms thi' jiiiisdietion that was formerly wanting,'— it extends to a elaiiii by a seaman of any ship for wai,'es earned by him on board the ship, " wluther tlu sinie be due under a special cotitiact or otlicrwise,"' and the phdutill's' counsel cunt'iided at the heariii;.,' that the Act of IHKI, as it K'*^'' the power to the Hinh Court of Admiralty, ^,'ave it also by construction or ex //ri'('Asi7(/7'' to the Courts of Vici'-Admiralty all over the emiiire. I confess I sliould have had .yreat ditiiculty in assiiinin^ this juris- diction, even had the Act of 18(j;j (the -Hi Vict. c. 24), not been passed. And as it is, I think the (luestion must turn entirely cii the con- struction of the two Alts. The comiiiiasion to my [iredece.s.sor, it is true, ilated in 1846, empowers Imii " to hear and deterniine all causes according.; to the civil and maritime laws ami customs of our High Cor.vt of Admiralty of England in our said jn'ovince of Nova Scotia or Acadia, and marilime pi^rts of tlie same and thereto adjacent whatsoever." The coiiimis-ioii of the Hon. Henry Black, the Judge of the Admiralty at (,)ueboc, dated in 1H38, runs in the same, or nearly the same words (((). And in tbe case of the Friemls (h), hv (juotes these words in the commission, but accompanies them with r i ,;irks, which, coming i'rom so accom}dished a jurist are entitle)."' " hi all case^ of jurisdiction the Court is called upon to peiforni ii ■telicute uud inii)oriant duly. Ah on the one hand it is the duty ot the jud-e to maintain unimpaired the Jurisdiction wliercwiih thc> law has invested him, so on the other he must he ,ut of Ail- iniralty having been greatly simplilied and improved bv tiie rules' 319 l! 350 Al'PKNDIX. 1850, iiiii.1.' in imrsiiiinco of tlie Acts of 1840 iiiitl 18:.4, iiuiny of wliicli, 1 tliink, ini!,'ht bo exteiuU'd with gmit advantage to the practice of this Conrt. By tlie (;otli of tliese rnles tlie niofles of jil.-adin^; thciclofoiv nsc.l, as well in causes hy Act on jietition as liy ](lca and \nou{, which arc still in force here, were uholished ; and the (With snhstitnted one mode of pleadin;^ of a very simple and ell'ective kind. The forms also are greatly ahhreviaied. The fees I have not c(niii.ared, hut I have Ion- thoni^ht that the fees in this Court might he largely reduced, with signal advantage to the community as Well as to the ]irofessic]n. If the practice of the two Courts is so widely different, so also, as I think, is the extent of their authority, under the recent legislation. (See the cases in Swahey's Rep. 47.5—488.) This is a most interesting inciuiry, and while I regret that in coiKhicting it, we have lost the aids of the long experience and ]iix>fe.ssional attainnuMits of the late Judge, it has hecome my iluty, and is essential indeed to a right determination of these suits, to traci' it through all its bearings. In the case of the Australia, the Privy Council sai.l in the year 18,-)!), "A Vice-Admiralty Court has no more than the ordinary Admiralty jurisdiction. That jurisdiction is the jurisdiction which was jiossessed by Courts of Admiralty antecedent to the passing of the Statute which eidarged it in LS4n." With this principh' in view, let us look to the (ith section of the Act of 18(il, in respect to damages for cargo imported. The first decisions upon this ,-ection were in the cases of the Ironsides— 1 Lush. 4r.8 ; and the St. Cloud, 8 L. T. Rep. .5.-) : where Dr. Lushingtou pciiiits out the necessity and advantage of this remedial clause : "The short delivery of goods brought to this country in foreign ships, or their delivery in a damaged state, the goods being the pro- jierly of British meichants, was freiiueiitiy a grievance— an injury without any i.ractical remedy ; for the owners of such vessels being resident abroad, no action could successfully be brought in a British tribunal, and to send the British merchant, who had sustained a loss, to ciMonunce a suit before a foreign tribunal, and inobabiy in a dis- tant country, could not be deemed a jirartical and elfecluid remedy. And this enactment, therefore, was intended to operate by enabling the party aggrieved to have recourse to the arrest of the ship bringing giiods delivered short or damaged in cases where, from the absence of the defendant in foreign parts, the common hiw trilainals could not alVord elfectual redress." The evil here described and remedied, and which wa-^ ext.nded somewhat further by the decision in the Norway, (10 L. T. Rep. 4i>,) exi.sts eipmlly, t! lugh in a nu.dilied degree, in the colonies as in the United Kingdom. Why shoidd not an American or a Si)aui>.h ship iiKikini: sh^it deliwry of her gnods, or delivering them in a damaged ai'i-i:ni>ix. 351 state at Halifax or Qiiobfc, be subject to tlie same arrest at tlic suit of the colonial coiisi>,'uee, as at the suit of the home coiisiguee in LdihIou or Liverpool. I look, however, in vain to tlie Act of lM(iI}, a]thou;,']i one of its objects is to extciul the jurisdiction of \'ice- Admiraity Courts, and in some particulars it does extend it, for any clause resembliii;^' the (ith in the Act of 18(il ; and where the Iiuiierial Legislature has given these colonial courts certain new ])o\\er8 and withheld others, it would be a bold assumption indeed to act upon the ]iowers so withlieM, as if tlu;y liail been given by the very Act that withholds them. 1 have no doul)t, iherefon', that the Act of 18;il does not extend jti:r se to the Vice- Admiralty Courts. The queslinn remains, wlictlier the words, "claims for seainens' wiiges," in the li>tli section of the Act of 1803, were intended to cover such claims, wlien due under a s|)ecial contract. I confess I !?hMuld be gild to tind that tliey wnuM ; for there is litlh^ reason in withliolding this power, when the next clause gives the new power to adjudicate upon a master's disbiu'sements. It is strange, however, that the wonls as to special contract, in the liitli section of the Act of I8(il, are nut repealed in the lUth section of the Act of 18(i;3 ; and it is clear tliat the proviso in the latter section, not having been repealed, does not extend to us. I see that the Judge of the Admiralty has been extremely cautious in exercising jurisdiction under the loth section of the Act of 1801, In the case of the Chieftain, 8 Law T. Rei>. 12(\ the jietitioner stated liis case as follows : lie stated amongst other things, "that a sum of money was due to tlu! master for wages, that he had 'disbursed various sums, necessary expenses, iur and on behalf of the Chieftain, anix. till' aliDV (• Cil-iC, lU Hill'' tliat "with iv,i,':U(l U> tlio lialiilit.v of :i imiHtiT lu-yona iiis .lisliiirsi'iiiciils -tint is, tlii' ilislnirsuiiifiits lie liati iirtiiiiUy paid,— however iianl my tit rision may hf, m- with whatever severity it luav operate on him, 1 have ud iuiisilictioii to ^;ive a reiiietiy." Ill tht .f the Itt.hert I'ttw, !) Law T. Kei.. 237, tl Jiitk exere.iset 1 et|iial cautinii in interiiretinj; the (llh section ul' the Aet of 1 in tl lese decisions ISKI, ainl the Till station of the Act of IHtC], am has set me an examiiie whith I will do well, 1 thin!;, to fulhi Tl le llic ctiiistriic against the jn inatitin of my judgment leans slron,L,'ly against the enlaigetl titiu t)f the loth section of the Act of 18(i:5, antl coiisiinueutly jf this Court to awartl seamen's wages iliie upun u 8] lecial ctnitiact. It intentletl, however, at th 'unient, that the defiiulants ei.idtl not tiiiject to the juiistlittiiiii, either on this grouiiil or iiuiler tile i'"ii> clause ill the Act t)f lHr)4, bec'ause they hail liled absii'iiti! ajiiieaiaiices, ami tiie rule in the Admiralty Courts re.iuires "that HJinultl a parly appear umler pit)test, either tilijetting to the Juiis- di. tioii t>f tlie C'tmrt, or on any oth: r grouiiil on w liich he means tt) ctmteiitl, that he is not liable to answer the action, his appearance must be entered as given umler prtitest." Now, there is no dtnibt that an appearance under protest is a taniiliar practice in the Atl- iiiir,dt\ '2;U ; 3 HagH apii ■ars in I'tiote, !);5, 17(!, ami by the ca'es, in 1 Doilsoii, )(i4 ; 1 W. Rob. 143 ; 2 \V. Rob. 224 ; 3 W. Re 10!) ; aiitl many t)thers. hi a note to Ctiote t»3, a ilictiim of Dr. Lushiii-ton is i|iitited from the Law Magazine, "that the , the Jiitlge heltl that all objections to the jurisdiction must be taken on the earliest tHf4-ion ; ami the (Mi-ndaiit having a]>li«aretl, and after the release of the ship on bail, having t.Uaiiied h'ave to make his aiJjiear- aiice umler prtitest, tlie jirotest was overruleil, "for an abstiliitt; ap]iearance once given cannot be re-called." On these authiuities I shtiuld have been inelinetl tt) \^Ad that the api^earaiice of the tlefeml- aiits, not umler protest, was a waiver of any objection under the £.")(> clause ill the Act of I8.">4. lUit, as it struck me at the ai-uimiit, it was a very ilillerent thing to expect the Court to a.ssumea jui istlittitiii which it ilitl not at all possess, merely because a defemlant hail neglectetl tir iliil not chotise to raise the objectitm in the proper ibrni. This distiuctitin, which apinared to me tt) rest tin principle, is sup- ported 1 find by the case of the Bilboa, I Lush. l.")2. It is tiieie saitl, " that the Court will occasionally consitler rpiestitms of juiisilietion at the liearing, but always with great reluetame, ami only where there might be tlaiiger tjf the Court jiroceediiig without any jurisdiction at all. The Court is necessarily obligetl to be careful not to exceed its iiiiixliitiijii ; Van it will nut admil, after ;ib.-:ulute appeuniiice, objec- APPENDIX. tir.ns of a purely toclinical kin.l." If, will be seen, tl.erofore, that whe-o the Cuurt i.s ..f oi.inioii, a.s in the cusos ii„w Mov^ us, that it hiis no juiN.li(:ti()n, it will not only enti-rtain the ol.jcctiou at the heanntr, l.ut is bound itsi-ir to iai.se it, as seems to have been the case in Swabey, OT. Of the merits of these cases, I have hitherto said nothing, though they figured largely i, , the argument. It is of little conse,|ucuce, indeed, whether the merits are or are not with tlie plaintills, if I have no jiower to enforce them. I may say, however, that in my opinion, two of the i.arties, at least, ought to have been pai.l s.jme- thing more than they got. The claims n.acU' to the third sixty or tliird forty dollars, I look ui)on under tlie evidence as untenable' Bailey a.lmils that he received his advance .mtside ; and Cameron *.,ys that he received forty dollars at Halifax. If so, Bailey was entitled to nothing more. To Xichol, if I had the power, I would have assi-med the whole, or the greater part of the second sixty ; and Vallev, whose evidence that he was to receive tliree sixties at Halifax, is improbable in itself, and is 1)esi■ .i-n (^\^l 8.',3 A A 854 APPENDIX. WAVELET. \r>th Aufjunt, 1807. The Court nf Vice-Admiralty exercises jurmKction in the case of a vessel injured by eolliy W. " That the Wavelet was wrong in keeping so close to tlie Dundee, knowing that her bottom was foul, and the wind light and variable, as It IS stated the wind veered from south by east to south-west. "That, instead of the Wavelet tacking when she saw the Duiiilee do so, Bhe ought to have stoo.l on at least rmother hundred yards, passing astern of the Dundee, by which means the c.dlision would have been avoided. " Tliat there was mismanagement on the part of the AVavelet when tacking, in not hauling her after-yards soon emmgh, by which means she payed olV on the starboard tack, and got so much stern wav, as Matthew Mcl)<,nald, the pilot, in his evidence, states, the helm\va.-» hard a-i.(,rt, the main yard l,iaced up, ami the crew in the act of hracing up the head yards, when he ha in time, the ship would not have had stern way, and would thereby in a measure have prevented the collision. " That the Dundee would have been wrong to have attempted to have gone to windvvarU of the Wavelet, is, I think, clearlv proved by the evidence of Abraham Bouvie, seaman on board the AVavelet, who states that she would have given them a close shave. This man I must state, was at the wheel of the Wavelet, on the tack across towards George's Island, and was hurt <]uring the collision. "That the Dundee would not have done right in suddenly tackiii" and anchoring, as, un.ler tlie circumstances of the case, I an. "i opinion that the AVavelet had the power in all wavs of preventing a cdhsion with the Dundee, ))y tacking before .shedi.l, orputtiu" hen- helm up when the Dundee tacked. " " That with the wind from south by east, or south, it would have heeu very imprudent <.n the part of the master of the Dundee to have an.dK.red so close to George's Island as he was before he tacked t''> j)revcnt a collision. A A a W^^' Jjf) APriADIX. "Takins fill tlic rirciim-tmu'eH of Hie case into cnnsi.lfvation, T am of .minion" tl.al Uk' WavUt ha.l ail llu- meaiw in Iht i-owrr ol i.re- vontin.' a .•ollisiou, and the Diualuc ii<.n.>, with this excoptmn-tliat when the Dundee saw the "Wavelet was pivs.iii- her so inu.li upon t;eor.'('-9 Isla.ul an to endanger the ship's safety, slie nu-ht have put her helm up, l)Ui which pvneee.lin- would have retarded her passage to sea, ami was .,ne which she was not ..xp.ded to take umler the I'ircunisUmi'es. " 1 am, Sir, " Youv oliedient servant, (Signed) " John J. C'ovf.y, " Navis^ating Lieut., H.M.S. Ciannet. "Tlu- Ilonorahle Chief Juslioo Young, ITalifax." Pilniagc. McDonald, the witness, hcing a licensed i.ilot .rvires to pilot !u-r AI'T'KXKTX. outwards, wlioii siuh services are clecliiio.l. Tlicre is no clause iu oiu' Act rcsenihliii^r the nr.th sec. oi' the « (!eo. IV. eh. \2r>, or t!ie 388th sec. of the Iferchants' Shipi.in- Act ; au.l I am of opiuiou tliat tliere is no coiiipulsnpy jiihita^'o, in the En-lish Kense of the term, III tliis i)rovince. The only elfect of our Act is to impose certain iMnaltics l,y the al.ove sections on the master or owner, an,l the employment of a pilot beinfj voluntary, does not hv the law merchant relieve the owner of liability. " In cases of collision, it IS no defence to the owners that the ship in fault is under liie direction ,,f the jiilot, and that the remedy lies .•i<,'ainst him. Tiicy are lialde in tlie first place, and must seek "their ivmedv a-ainst the I'llot." 1 Hell's Com. ;jn:3. '-The pilot while on l.oaril has the exclusive contnd of the ship. He is considered as master ]"•" hw; VH'c, and if any loss or injury he sustained in the navi^-atioii of the vesst;! while under char-e of the pilot, he is answerable as strictly as il he were a common carrier for his defaults, negligence, or unskii- liilness, and the owner wouhl also be res],onsible for the act of the pilot, as being the act of his agent." 3 Kent's Com. 2A± See also the cases of the Neptun-, 1 I)„dson's Reports, 4()7 ; the Cumberh.nd and Lord John liussell, Stuart's Vice-Admiialty Reports of L.,wer Canada, 75, 190, where the doctrine is fully exujjiiiied by Judge Jihick. "Cumpulsory j.ilotage," siiid Dr. Lushington 1 Swabey, 217), "is the sole ground of exemption." The principir is, that the jiilot is not the servant of the owner, but is forced upon him by Act of Parliament. The comi.ulsion and exemption, therefore, go hand-in- hand. I may add that the same principle is i-cognised in the case of the Agricola, 2 W. Rob. 19, in the cases cited in 7 L. T. Rep., N.S., 568, G48, and in the Law Reports for 1867, fol. 72,293. Pov>eT of the Court. The other point that has arisen in this case is much more difiicult than the two I have now dispo.^ed of. The collision is set out in the j:eliminaryact,s, and .shown iu the evidence, as having occurred ou the b-e.,i-east side of George's Island, Halifax Harbour, and tlure. fore 'v.-.hin the body of this county. The defendants put in aii absolute appearance ; there was neitlu'r protest nor declinatorv plea, I hehl, however, in the cts-^ of tjhe City of Petersburg, that aii objection to the jurisdiction of th. CiUirt might be raisid for the first time at the heair.g, •.vun it rested on sM?i:,tantial, and not ou technical, grounds. In this case it was .sr k ised hy the defendant's coun.s.-l at tlm hearing, and the ion. This case went before the Trivy Council by appeal (i. Moore's P. C. C. 30 1, new series), when the j\irisdiction as between a steamer and a barge was allirmed, and counsel observed there was great ditlicuUy in ascer- taining the meaning of the above section. It is obvious, however, that its elfect was to supplement the 6th sec. of 3 and 4 Vict. ch. 6. The inference that may bo drawn there- from in the Colonial Courts will presently apjiear. In the argument of this case, I was reminded of the original juris- diction of the High Court of Admiralty, as travelling everywhere with the How of the tide, ami comprehending in tidal rivers or nii'oHchi(res of the sea whatever was below the first bridges (infra ])rlin(is iiimtcii), which are ell'ective impediments to free passage to or from the sea; and then 1 was asked to decide in this case that the ancient statutes of Rich. 11. and Henry IV. did not extend to the Colonics, ]'.ut I should consider well before l adopted so startling a j)rojiosition, or claimed for this Court a jurisdiction wider than that of the High Court of Admiralty before the recent statutes. I see, indeed, tVom ihe American cases of Steele o. Thatcher APPENDIX. 859 upon the iiiit, or of lis was by Ii'iirv IV. es, UiDU^'h wn'rt Civil At h'llj^tli, li(,'li Court thiii},'s, to ny sliip or oeii within vvhi'Ti Huch iUsliiiif^toii littid thiit I Court of uty. Tliifl jiuses ; iiiiil, remedying ftiitute, tlie 1(1 improve i. of which for damage )h. 41)3, J)r. The terms f a county," for constant 1, ni'vorthe- i case went ;. :Mil, new a Large was ;y in ascer- I'nt the (Jth rawn there- iginal juris- everywhere d rivers or idges (infra )assage to or ase that the tend to the so startling wider than atuti's. e. Thatcher (Ware's Reports, 92), and I)c Lovio v. Boit (2 Oallison, 4"!)), th;it tliis wider jnris.liction was chiiiucd and exercised by some of tlie Colonial Vice-AdmiraUy Courts before the separation of the United States fioiii the Mother Country, Itut I know of no authority con- ferring it upon tins Court. In the cases of tiie Hajali of Cocliin and the Australia (Swabey, 475, 4H8), in the year 1H,5», Dr. Lushinglon said : " I am of opinion, that by statute--, and for other reasons, tlie Vice-Admiralty (.'(lurts in our ('(donies, properly constituted, exercise the same jurisiliction as the High Court of Admiralty, with one ex(ei>tion, and that is, when particular jiowers are conferred ujion this Coii'*^ by name, and not iiinin the Vice-Admiralty Courts." And, again: - -x Vice-Admiralty Court has no more than the ordinary Admiralty jurisdiction. That jurisdiction is the jurisdiction which was possessed by Courts of Admiralty antecedent to the statute which enlarged it." Now, it is clear that the a & 4 Vict. ch. (!.") did not extend to the Vice- Admiralty Courts, neither did the statute 24 Vict. ch. 10. lint the statute jms.sed in the ses.^ion of Parliament for 1803, 26 Vict, ch. 24, had for one of its objects to extend the jurisdiction of the Vice-Admiralty Courts as well as to amend their practice. It is under this statute that I sit here, the Chief Justice iiecoming, on a vacancy, the ex-ollicio Juilgc of the Vice-Admiralty, and not under any commission, the issuing of which would be contrary, as the Colonial Secretary declared, to the spiiit of the Act, This Act, therefore, inaugurated a new .system— it selected judges wlm nuiy be fairly assumed as the principal judicial oHicers of each possessiou to be better fitted for the otlice than many of the luevious appointees, and it confessedly enlarged the powers of the Court. Now, it is remarkaiile that it gives jurisdiction to the Vice-Admiralty Courts in matters of collision in the very words of the Act of 1861, "over claims for damage APl'F.NmX. Imrlxmr willi lliu niurilimc Iiuv of nations, as lulumiiHttiod in thi:i Court. 1 imisl InrtlU'r > Iwfivi; tlial in tiii' tUBc of tin' U. ail Aivli, 11 Hliip owneil in this province, and wliiih \\w tuly the ovntrs themselves in this country at the ln-inning of a voyage, l.y the t.iniH of which the ship i<* pledged om a. .security, cannot he enforced in the A.lmiralty • 'ourt aj^aiiist the ithi{\ In the American ' ourts proliahly a wider jurisdittion is conceded. And the Admiralty Courts in oiir Ameuoun piovince» fxei-eise a fuller jurisdiclivu than the lli^;h Court of Adn. ^alty in England. The ivasun seems to be, that after the lUvohilion of 1G40 l.ioke out, there wa.s a great jealousy against the Ecclesiastical Courts, and this was extended to the High Court of A' uiirally, and so in Lord Holt's time its jurisdiction was ciirtaile.., I 1.1011..^.,. i„ lUviMir el' tli.' Dmi.lcc willi costM, Bjul iliroct thi- usual rtl'ti ,ou to u«t.,ituiii tlie ainuuut. aoi TIIK ril I4tk Aurjiist, A Court (.1 Adnr ilty liasjuii-lictiun ii .h.- ..f .laiim-c done ' a wharf by a shij. un.lcr tho Imipeiii.l Act ..f IH(il, wliich , , :h that the Vice-A.liuiialtyCuwrts shall have jiiii8aicti..n in ivsnect of chiiiu.s fur ihinui-e " doiui hy any slii]i." Where a, vessel wtis inHnllidently nii.nre.l and in :, ;alr .,1' wind hnikc fioni h.-r fastenin-s and collided willi n wharl helil liable Iwi th(! d iiii;i;'e. I, lier Dwncr.s Jud(.M1.:nt.-7'A« Hon. Sir H-.uum Von,,;,, ('hirf Justice, sUlin.j aa Jiul.jc of the na:.A,lmirall,t r„„rt „ Halifa.i; Norn Scotia. In this case, on an allida , ii ( foul of Ills wharf at Halifax, Octolier last, a warrant issued i), and bail was ]iut in for the sum ' lintKf that the C'liase liad run ally injured it en the 12lh usual form in cases of collision HOOdidlars. The libel was lile.l on the 5tli December, and muaitely described the circumstances uf the ail(-ed injury, the material alH'ations being that a gale having arisen while the steamer was dischiirging cargo at the Dominion Wharf, no steps were taken to secure her safety, although she had no anchors out or steam up, and was imperfectly fastened, as described in the libel ; that none of the pri-icipal ollicers were on b.iard, ai, I only two or three of her crew; that it was blowing a violent' gule from the south-east, with a very heavy sea running ; and in conse- quence of the careless and improper mooring of the steamer, and there being no one to look after her, the fastening slipped olf, and she swung round to the eastwartl, and headed up the harbour, coming into collision with several wharves in succession, and ultimately with the idaintilf's ; that the damage was occasioned solely by the care- lessness and neglect .'f the owners and crew of the said shiji or steamer in not mooring her securely and taking j.roper stei)s to jjrevent her drifting ; that she drifted up the harbour, bows .,ii, for about four hours, and during the whole of that time no elfeclual steps were t^ikeu to secure her or jirevent the damage ; that the plaintilfs Avharf was strong and in good onler, and that the damage done thereto excee it was held that the section conferred jurisdiction for damage done by a shi|) to the breakwater at Falmouth. "I take it," said Dr. Lnshington, "that the section confers jurisdiction over every case of damage dcme by any .ship. I hajiprn to know," he adds, "that this section was inserted on jmrixise to give jurisdiction in a case like the present. I am perfectly satislicd of this, but was somewhat staggeied by the case cited of the Robert Pow ; Init, mi looking at it, I find that it does not all'ect the present case, and that the Court has jurisdiction." These two cases are cited by the Court of Queen's Bench, in the case oi Smith ;'. Brown (r), where it is said, as to the latter, that the damaj.,e had been actually done to the breakwater by the ship itself, and the case therefore came within the very words of the Act. This ■was decided in Mrv, 1871. In the Industrie, decided in January, 1871 ((/,\ the Blue Bell, in consei^uence of an unskilful mauojuvre of the vessel charged, took the ground, and though her anchor was let go, dragged it and drove against the town wall of Ilartlejiool, suffering damage, for which the Industrie was held liable. " There has no doubt," said Sir Robert Phil'. more, "been some (luctuatiou as to the extent of the jurisdiction of the Court of Admiralty in cases of damage, but I think it is now established that this Court lias juris- diction where danii.ge has been done or received by a ship, although there may not hove been any collision between two or more ships," It is to be noticed that the Gth section of the Imperial Act of 1840, 3 & 4 Vict. ch. (io, giving jurisdiction to the High Court of Admiralty, among other thiiigs, over "damage received by any ship or sea-going vessel," has not been extended in terms to the Vice- Admiralty Courts. A class of cases has also arisen in England, one or two of which were cited at the argument, on claims under section C of the Act of 18(11, for pewonal injuries. The jurisdiction of the High Court of Admiralty over such claims, by virtue of Lord Campbell's Act, has been asserted by that Court, and affirmed Ity tlie Conunittee of the Privy Council, the l.^ghcst (a) Browning & Lnshington, 99. Cu) ly L. T. li. i>7:i ; 2 L. It. Admiralty', 'iS). (f) 25 L. T. K. 814. {d} 24 L. T. R. 446. 361 Ai'l'KNl>IX. (Vmil Iviiown t(i u^ lint (nu'stioiicd liy tlio Court of (Jiiccn's IVncli, on a writ of pviiliiliitiun, in the case of Sn-.itli r. Bro,vii, alrciidy cited, wliere tliecase.: uf the Sylpli, the Ould-faxn, and tlie Beta, are reviewed. Wliatcver may he llie ultiu'iito (h'i'ision on tliis point, the juri.sdietion in llie ease we are now dealing with seems ahiuuhinlly edear, and \\o liave now to imiuire wlietlier tlie principles of lav/ healing iqion the i'aets in jjroof will hring the defendant within it. There is no (piestion tliat the plaintiif and the other i)rumovents in the suits against the Chase have snil'ereii serious losses, and are themselves free from blame, though their wharves may not, in all cases, have been as strong or as sound as they ought, and their elainis may, in some instances, he exaggerated, or attrihutahle to the Storm ratlier than to the Chase. These are subordinate imiuiries. The fact remains that hut little, if any, contributory negligence is im- putable to tlie complainants, and that heavy losses have been incut reil, the liability for which dejiends upon the main issue. Were these losses attributable to the act of God, to inevitable accident, as set up by the defendant, or, as alleged liy the idaiiitiif to the want of due care and precaution, and of adeipiate skill on the part of the Chase, for which the law will hold her owners responsible f ^lany cases were cited on the subject of inevitable accident and of negligence, and they are very numerous in the books, ami establish principles that I look upon as well settled. I shall content myself, therefore, with referring to a few of the le/uling and more recent authorities in England and the United ►States. In the Jlarpesia, decided on appeal by the Privy Council in February last ('(), the Court said : " It was suggested by cotinsel, that on the ground of inevitable accident there is some dilference of opinion between the Court of Admiralty and the courts of com- niou law." Their lordships, however, cannot iind that there is any such dilference. They take the law as they tiud it laid down by I)r. Lushington, in two cases. In the case of the Bolivia (h), Dr. hushingtoii says : " With regard to inevitable accident, the ooit.s' lies on those who bring a complaint against a vessel, and who seek to be indemnitied. On them is the oiiii!> r'' v'ug that the blame does attach upon the vessel proceeded a',' The onus of proving inevitable accident does not neces.sarily .ittach to that vessel ; it is only necessary when you show a j""''"' /"cm ease of negligence, and want of due seamanship." Again, in case of tlie Vir"il ((•), the same learned judge gives this detinitiou of inevitaVile accident: " In my apprehension av inevitable accident, in point of law, is this, viz. — That which the party charged couhl not possibly ((() 2G L. T. K. 333. {!,) 3 Notes of Ca.so:^, 208. c) 2 W. Kol>. 205. API'EXniX. 865 prevent by tlic exerciso of or.linarv care, cautinn, and mun'tiine skill. If 11 vessel, ciiiir-ed with having' occasioned a collision, .^I'onld be sailing at the rate of ei^'Iit or nine knots an hour, when she ought to have proceeded only at the rate of three or four, it will be no valid excuse for the master to aver that he could not have jirevented the accident at the moment it occurred. If he could have used measures of precaution, that would have ren- dered the accident less probable." " Here we have to satisfy our- selves," said thei.' lordships in the Marpesia, "that something was done, or omitted to be done, which a jxison exercising (ndinary care and caution and maritime skill ii. the circumstances, eitlur would not have done, or left undone, as the case may be." These prin- ciples have been followed by the District .'ourts of the United States, and wer« recognised by the Irish C(jurt of Admiralty iu the case of the Secret, decided last May (a). Towns -ind, J,, said he could not do better th.'m adopt the language of Dr. Lushingtou in the Europa and other cases, and as the head note e:.presses it, inevitable accident is where the colliMon could not have been prevented by proper care and seamanship in the iiarticular circimistances of tlie case. The cases as to negltgence and the oniiK pro'iandi proceed ui)on the same principles. In Morgan i-. Sim. (b), Lord Wensleydale said : " In a case of collision, the party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The 1)urden of pioof is clearly upon him, and he nnist show that the loss is to be attributed to the negligence of the oppo.site party. If at the end he leaves the case in even scales, and iloes not satisfy the Court that it was occasioned by the iiegligence or default of the other party, he camiot succeed." It will be observed in these decisions th;.: ' le words "ordinary care," "precaution," "the circumstances of the ca.se," i)erpetually recur. They are the key notes of the rule. E.xtiaordinary and i.nexpectcd cases, which a piudent and thoi\glitful man could not have foreseen and was not bound to guard against, are n(jt witliiii the rule. Thus, in Blyth c. Birmingham ^Vaterworks (c), where tlie defendants' fire-plugs were constructed under the Act of Parliament, but gave way under the severe frost of 1855, which jienetrated to a greater depth than any which ordinarily occurs south of the Polar regions, it was held that the company were not answerable for the ciiuswpieuces. They had acted according to the circumstances of the temperature in ordinary year.s, and the law would n(jt charge them with negligence. But where emergencies occur, and a ve.ssel is exposed to tempestuous weather, or placed in a critical position, the master mu.st be e(iual to the occasion, and must adopt, on the instant 0() 2ii L. r. i{. (i7o (/,) n M.J.. r. c (<■) 11 K\c-li. 781. •m. if '! 806 AITKNOrX. such inoasures as n(lo(|nalc skill iiml seainaiiHlii]) prcscrilic for liis own salVty ami tliat of otlu-iH. " Darkness and thick weather can only lie an excuse in collision ior tho-e who have exerciseil such aihlitional caution as jirmlence and the circumstances reiiuired (k)." In the Thomas Powell r. The Culia(/)), the latter was held liable for the collision, thouj^h it was a very temiiestuous ni;,dit and the wiml Idowing with ,-everity. And in Seacjmbe r. Wood (c), where the vessel had received an injury and been rendered unmanageable by the negligence of tin; defenilant's master and crew, her being in that state was held no defence' to a subsequent collision. In the case in hand no negligence can be imputed before the tempest arose. The Chase was fastened to the wharf as she hail always been, and as usage had shown to be anijily sullicient under ordinary circumstatice.s. She was discharging her cargo, her boiler being rinsed out and her steam managed as usual; the master absent for a short time, as be had a right to be ; the other olhcers ind crew en board. The hawsers and eipiipiuents of the ship were in good onler. Xo accident had hnjipened to her ur her companion ships at the wharf for some years. But the tempest came on with un- exampled violence and it was obviinis that additional fastenings were necessary. They were in fact i)ut out and the priiici])al one secured to a 8|)ile on the south-east corner of the Dondnion Wharf. The tirst and most material (piestion therefore is, Were the fastenings alter the storm sue h as a prulent master, of competent skill and vigilance, ought to have used and been content with, looking to the position of his vesscd and the appliances within his reaJi ? And the steamer having broken adrift, by this princiiial spile giving way, the second (question is, was she then handled in a seanuvnlike maiuier, and every reasonable effort made to avert the damage that was done ? The tirst of these ijuestions is one of which any intelligent man can judge after listening to the evidence, and, above all, after inspecting the premises. The second retpures nautical skill, and belongs more to the assessor than to the Court, though the judge, according to the doctrine in the Magna Charta ((/), has still the resixnisibility of drawing a judicial conclusion. It is not my intention to wade through the statements in the luimerous depositions, which are often mere repetiti(jns of each other, and would extend this judgment to an inordinate length. I shall content myself with reviewing them in their leading features and impiiring first of all into the character of the storm. Three or four of the witnesses for the plaintiff are disposed to de]ireciate it; but the great body of them, including some of the promovents, unite in describing it as one of the heaviest gales accompanied by the worst sea that had been seen in this (a) M.vlil.ii'lil.m on .^hipping, 280. (c) Moo. & liol). 2U0. ih) liL.T. R. 603. id) 25 L. T. H. 5/3. ArPRxnix. 8G7 harbour for many years. Ueynos;us, "I liuve liccn al.out Ilulilax Harbour all my life, in lar^'e and small v-.-isels, ami n.'vcr saw a •,'alc come up H„ (|uick, there wii>* no warnim;; it was the hi,i,'hcst tide and sea that I ever ilir and ]iiinri]ial (illircrH (nil n|' wlunn liiivc lii-i'ii cxiiiiiinril) liclicvcil tlicy MiTi' snllirii'iit. It is liiird tn iiii]mtf ti> tlicrtc uirii, liiiviiiif a viiliialilt!, uniiisMK'iLsliip in I'liiir;^!', witli (lie ailvnntii^'i's of loiij,' cxinritMuic, a ■want fitlicr of vi^;ilanc(> nr of skill. Tliuv ilcsor 'm minntcly llio lastcnin'^s tlicy (•miployi';l,nn(l it wcniM lit- a waste (jT tini" m dcscrilie flu'ni lifiv ; they ainiear on the diai;rain. lint I cannut ]r'1|i tliinkinj,', after a careful and delilierate review of the evidence, tliat there was an irror in judj^'inent in trusting' tn one spile. Baldwin's e\ idence and my iwii inspeetion sliow tliat there was a second spile on the south side of Dominion Wharf, which was not used. A line tf> tlio spile on the north side of Dominion Wh.irf, aciordin," to Steele, would have lieen of m) service, for tlie rea>on he as igiis ; hut tliis cannot he said of the s])ile on the south side. It is admitted that tlie cau.se of the Chase hreakinj,' away was the slantini,' of the spile (m the south-east end of the Dominion AVharf, to wliich .she had made fast Wilco.v says : "I think the Chase's fasts were .«ufH- eient to keep her to the wharf, if that spile had not ,i;iven way. The whole of our fasts on the Dominion AVharf, including the e.\tra (uies, were fastetied to one spile, havin<,' taken the fast that wan on tlie spile near the shed and pnt it to the spile on the wharf south (that is on Millei's Wharf). AVe depended most on the .s]iile on Dondnion AAHiari' which lirst .gave way. The spile gave way from one lo one and a half hours after the fasts were made to it." During this time it must he recollected the violence of the storm was increasing. It ro.se to its height, Mr. Allison thinks, between si.K and seven o'clock, and to a vigilant looker-on might have suggested one Would thiidv, the wisdom of .strengthening the fa.stenings both to the Dominion AVliarf and Miller's. Ca|jtain Mulligan, who.se deposition is very full and minute, admits that he depended tm the .south spile on the Dondnion AVharf as the main or principal fasten- ing of the ship, and unhappily it failed. I have no douht, notwith- standing the allegations of the libel, and the declarations of three or fonr of the witnes.ses for the i)laintilf that the captain, the chief engineer, and the other oilicers of the ship were on l)oard and e.xerted tliemselves to the utmost, after she broke away, to avert the damage. The anchors were dro])ped at the same in.staut with the hreakiii" away, or instantly after. Steam was not up and (;ould not he till all the damage had been done ; and the only (juestion about the point that I see was the paying out of only twenty or twenty- live fathoms of chain wlien a laiger (piantity would liave been more Judicious. Since the hearing, Captain Nicholson has gone over the evidence as well as myself, and has recorded his conclusions in a letter to ine which I will now read and put on (ile. iuii.--lcr and bIi'i'VimI tlioy },Mi valiuilile, •.\l)i'rit')i(;t', a liiiutcly iho '' co (Icscrilie Lanimt lielp nilfiicc, tliat Baldwin's Second sjiile •ed, A line icronlinf,' to IS, i^'ns ; Imt is admitted itini,' of tlie ) wliicii slie 3 were sufli- 1,'iven way. 1,1,' tlie extra lliat was on ivliiuf south lie spile on ay from one t." During storm was between six 3 suj^'^'csted, ngs both to f,'iUi, whose (led on the ipal fasteii- )t, notwith- of three or 1, the chief mil exerted he damage, e breaking not he till about the or twenty- been more 10 evidence etter t(j me APPENDIX. Opinion o/ll. F. Nichowon, R.N., ac«/u/ as Nautical A,m,or in the affair of the steam vessel Chase. " ILM.S. Royal Alfred, " Halifax, July 24, 1872. " Sm,--I havo the honour to report to you the opinions I have lornied when acting in the above capacity in an action tried before you in the Admiralty Court at Halifax on the 8th and 9th of the present month. " Haying very carefully listened to the evidence and arguments adduced and having, in conjunction with yourself (at the instance 01 counsel), visited the Dominion Wharf, to which the steamer Chase was moored at the time in question, I have been able to arrive at the following conclusions :— " ^f- '^y^ tl'e g"le which raged at Halifiix on the evening of the 12th October, 1871, was one of most unusual violence. "2nd. That no seaman, taking ordinary precauticn, could have anticijiated such a violent storm, as nearly the only inu nation of its approach was tlie falling of the barometer ; other indications, such as a ground-swell setting in heavy masses of angry-lookin- clouds and fast-Hying scud, &c. being wanting. ° "ard. That under these circumstances it was not incumbent on the master of the Chase to close his boilers and get up steam. " 4th. That the steamer Chase was improperly secured to the Dominion Wharf, inasmuch as only one spile was used, while several were available. U ordinary seamanlike precautions hud been taken I believe there was every chance of the Chase riding the gale out safely. I am of opinion that the hawser, which was taken from the starboard bow to a spile on a wharf south of the Dominion nii-ht liave been doubled or trebled witli great advantage; that a he^vy spring should have been put on from the starboard quarter to a spile on the north edge of the south pier of the Dominion Wharf and thit the breast-fast from the starboard bow should have been 'taken to the spile situated further up the wharf. " 5th. That after the Chase broke adrift, the anchors were promptly let go, and that no other steps to prevent damage couhl have been taken by the master of the Chase. " Gtli. That when it became apparent that the ship was dra^-in- her anchors, more chain should have been allowed to veer " The testimony of the witnesses proves that between 25 and 30 fathoms were veered. If this quantity had been very much increased (sav to from 70 or 80 fathoms), I believe that the Chase's chance Jf bringing up woiihl have been a very good one. "Tv other points very much less material than the fore-oiii" have been raised by counsel. It. inny be n'^ ."<.]! (•-,„. < ° ° my opinion on them. u • 3fi9 I*. 370 APPENDIX. "Tlie cminsol for the plnintilf uii^cd tlmt if s'tcnin lia.l lictn uwil a portion of t!iu slniin niigl t have Icon tiily tin- mnsliT willi lln- writtoit roiiwiil of tli<^ owner. Willi tlu' cxcci.tioii ot'ii-^mii paid for wiiB''s(.,i llii' altfiniiti'il voyii^'o tn {.'ow Biiy, llu- fttlvMnco ol' iiiiu't.'fii Iniiwlrcil dolluM wui uctuiilly ma.le for Hnila, rcjiiiirB, niul otlu-r lu'cemurii-x, without which it WM impoH^ldc fur the Tiiroc Sistirs to ^o to sea witli niiy reasnnahle hope of safety. Mi. Fritli wiia lint nwiin-, until iiitcr h.' had tiikt-ii ndion on tho bond, that ai:y (mo ln-ld n mortgage on thu »'liip, hut had been given to undin-stand hy tho owner nt tiie tiniu the hond wiw given, that there was no incuinhrancc on the Three Sisters. That ])ieviously to the said a:4recm(!iit huiny nindj and the bond executed, the said briganline, Tlirec SiHters, hud been niortga-t'd to one George B. Hall, of Quebec, for the sunn of ^I^himhi, by a ni..rtgu«e bearing date tho 20th day of Augn.it, IHT'i, and wliich was reginteied on Die -lint day of Angunt, 1H72, at Quebec, aforesaid, to which port the said brigantine belonged. The aniouul securetl under the Siiid mortgage is still duo and unpaid to the said (borge 1'. Hall. The eabject for argument— the validity of the bond." I have to add that, having inspected the cerliticate of registry, I find that, according to the i>raolice and rule at the Customs, the mortgage was not endorsed thereon, and it appears by the case (to which the owner, however, is not a party 1" speak for himself), that he misled Mr. Frith, by giving him lo untie island that there was no incumbrance on the vessel. A telegram to Quebec, to ascertain the fact, would have been tin; most prudent course, as it turns out that his contidence was misplaced, and that either he, or, rather that either his creditors or the mortgagee arc to suffer. No , \iurt Ij cuhos whuro such conat'nt has bciii given." " I'lMin llus bfst consideuition I can give thist iiufstion," liu lidded, "and iiHsuniing the oiporling the view that there is no jurisdiction in Admiralty on a hypothecation by the owner in the home port. And aiotwilhstanding the high authority of Judge Story, and tlie Irish case, in (2 Browne Civ. and Adm. Law App. 530), my own opinion leans strongly to that side. It was supposed at one time, and the Royal Arch rather favours that view that the Courts of Vice-Admiralty from their position and the absence of Ecclesiastical Courts, were clothed with a fuller juris 374 APPENDIX. diction tlian the High Court of Ailmiralty in England. This (|uestion I examined at large in the first decision I pronounced here, in the case of the City of Petersburg in 18G5, reported in (1 Oldright, 822), and the notion, if it ever had a foundation, is completely dissipated, I think, by the decision of the Privy Council in the case of the Australian (Swabey, 488, and the Imjierial Act of 1863, the 2G Vict. c. 24), which auvhoritatively defines the jurisdic- tion of all Vice- Admiralty Courts. The Statute limits as well as defines it, and in some cases, as I have had frecjUfnt occasion to remark, to the manifest injury of the Colonies. Why, for instance, as I observed in 1865, should not an American or a Spanish ship, making short delivery of her goods, or delivering them in a damaged state, at Halifa.x or Quebec, be subject to the same arrest at the suit of the colonial assignee, as at the suit of the home consignee in London or Liverpool ? The English merchant has a complete remedy w Tern. The colonial merchant only a remedy in personam, which, in nine cases out of ten, is a mockery. Why under the 10th section o5 the Act of 1863, sub-sec. 9, should not the same power of ordering a sale be conceded as under the 8th section of the Act of 1861, and the want of which power defeated a suitor in this Court of his right in the " W. E. Wier," a case of possession, in tlie present year. And turning from jurisdiction to practice, why should the cumbersome and expensive forms of the year 1832, with some few improvements, continue in force, when so admirable a code has been in use in the High Court of Admiralty since the year 185!) ? As my present judgment will naturally attract some attention throughout the Provinces, I embrace this opportunity of inviting the jittention of the legislatures of the Mother Country and of the Dominion, and of mercantile bodies therein to these inquiries, which, as my experience has shown me, very much affect their interests. Taking the law as it is, it is obvious that the validity of this bottomry bond depends upon the relation in which Halifax stands, whether as a foreign or a home port, to a ship owner in the Province of Quibec. If a foreign port, the bond is valid ; if a home port, it must be rejected. This is an inquiry of real valne,and as is apparent from its application to any province in the Dominion, of much practical importance. A bottomry bond, to be enforced in the Adniiralty, and to take precedence of incuudnances on the registry executed within the province to which the ship belong*, is of no avail. This liottomry bond, executed at Montreal or at Gaspe, would be valueless in the Admiralty. Shall it be good then, when executed at Toronto, at Charlottetown, or at Halifax ? Let us look, first of all, at the English cases and legislation. In the case of (Menetone v. Gibbons, 3 Term. R. 267), an hypothecation bond of a British ship expcuted nt Curk, in Trel.Tud, in the yp.ar 1T82, was held to be good, "being executed in foreign ^arts in the course of the voyage." In APPENDIX. 375 the case of the Barbara (4 Oh. Rob. 1), counsel said that Jersey for the pui-pose of sustaining bottomry bonds, might be considered as a foreign possession, to which the Court of Admiralty assented. In tlie Rliadamanthe, however (Dodson, 201), in 1813, Lord Stowell expressed a doubt of Cork being a foreign port since the Union. And now by Imperial Act of 1856 (the 19 & 20 Vict. c. 97, s. 8), '• In relation to tlie rights and remedies of persons hiving claims for repairs done to, or supplies furnished to or for ships, every port within the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersey, Alderuey, and Sark, and the islands adjacent to them, being parts of the Dominion of Her Majesty, shall be deemed a home port." In construing the Dominion Act of 1807, by which the Provinces of Canada, Nova Scotia, and New Briinswick, are welded into one, I should have had great difhculty in holding that the numerous porta of these provinces, witli a uniform customs, law, and tariff, were to be treated in relation to each other as foreign. If so, a bottomry bond of a Quebec ship granted at Halifax, uixui the principle iu the Khada- manthe already cited, would take precedence of a previous bottomry bond duly granted at a foreign port. But any question that might have arisen under the Dominion Act has been resolved by the Mer- chant Shipi.ing Colonial Act of 1860, the third section of which provides that in the construction of the " Merchant Shipping Act of 1854," and of the Acts amending the same, Canada shall be deemed to be one British possession. On strength of this Act, as well aa of the other, I am of opinion that aii the ports of the Dominion are to lie accounted home ports in relation to each other, and therefore that this bottomry bond cannot be enforced in the Admiralty. Next as to the claim for salvage. This comes before the Court clouded with a suspicion of which I have not been able to divest my- self. The vessel having been arrested on the 21st and the warrant returned on the 26th of June, remained in charge of the late acting marshal, waiting the expiration of the two months, when according to the practice of the Court the parties cited could be pronounced in defiuilt, and the promovent have a decree for the amount of his demand on the bottomry bond. At or just before the expiiation of that time, tlie mortgagee appeared by his proctor, and on the Ist of September, after liearing both parties, I ordered a sale, which was held on the 13th, and produced the net sum of $1497.74, now in the registry. On the 4th of Augtist the men emidoyed by the then marshal had left the vessel in the stream with only the port anchor down ; and in the storm which arose on that day she drifted down the harbour with no one on board, no sail set, and the starboard anchor hanging to the bow. Five affidavits were read at the hearing, and I do not intend to go into them minutely. Two of these were made by Farrell and Campbell, who saw the vessel dragging— she 376 APPENDIX. keilged as she was going do\vn. About 7 o'clock Farrell saw her bring up between George's Island and Wiswell's Wharf, and then lieading N. by E. and riding Rt her anchor. Tlie last time he saw her M-as »bout 8 o'clock, when she was between Moren's Wharf and the Gas Works, he could not say she was then dragging. Campbell saw her between 7 and 8 o'clock, abreast or slighlly south of the Gas Works, she was then swinging head to wind. These two affidavits produced by the salvor.s are (luite reconcilable with Mr. Hugh McD. Henry's, produced on the defence, which it is quite impossible to reconcile with the salvors. Mr. Henry, standing on the Lumber Yard Wharf, between 6 and 7 o'clock, saw the vessel driving past tlio wharf by the violence of the gale, and apparently dragging her anchor. When she had drifted a short distance beyond tlie wharf, her ci : ■' was arrested, and she rode safely at her anchor, and was so riding, notwithstanding the great violence of the wind, at the time when he last saw her, nearly one hour after her course had been so arrested. Next morning between 9 and 10 o'clock he saw the vessel in the same spot as nearly as he could judge,— ho felt sure in the morning that she had not changed during the night. Now, I attach great importance to this evidence coming from a disinterested and competent witness. That he speaks of the same vessel, and that the vessel was then riding safely at anchor, as he describes her, I can have no doubt. That the two McLennans, who claim as for a meritorious s;,ilvage, went on board and let go the other anchor, I believe ; but that after their own vessel ran ashore, they went out in their own boat from Steele's Pond between 2 and 3 o'clock in the morning, only two hours before the lull of the storm, and boarded the vessel, then dragging, and saved her from going ashore, I regret to say I do not believe. They have magnified a comparatively slight, into a substantial sei-vice, and I would be justified, perhaps, m rejecting their claim altogether, as I did in the somewhat similar case of the Lusteria, also in this harbour. This, however, I shall not do and as some service was rendered, I award them §25 each. I have now to coui^ider tlie several claims for wages, and first of all that of Marmaduke Graburn, the master. I allowed him to intervene, 15th September, on the petition of his proctor, claiming a Valance of §207, and the affidavit of his agent stating it at $250, verifying also two memoranda said to be signed by Mr. Downs, one giving the date when he Uwk charge and the rate of wages at «50 per month, and the other charging him with payments at Halifax •md Trinadad, amounting to «300. Siteman and Gastonsay, who werp examined orally at the hearing, proved Graburn's employment as master, since the Ist of December or January, making a little over six months to the date of arrest. They failed in proving the handwriting of Downs to the Mrrno., and as Graburn has been unable to come here and te.-tify for himself, there is really no evi- APPENDIX. dence of the $250, his counsel here claims, being duo. He is also charged with considerable sums in an account from Trinidad under his hand, and by an affidavit of Mr. Frith, which the Court has no means of investig;i''"ng,and must, therefore, reject this claim, leaving the master to H. urse ou tlie owner. The claim also of Charles r. Johnson, th. . ,te is not strictly proved, but as the ship was arrested on his attiuadt previous to lier arrest by the bottomry holder, and the latter paid the amount with costs, amounting to $180.7!J, I shall allow him that sum. In the W. F. Safford (Lush. Adm. 69), a person who had paid the crew their wages by direction of the master was allowed to stand in their place, and his claim was given preference over a bottomry bond. On that principle I shall allow the wages paid by Mr. Frith to Ilanlon, Brown, and Ashford, amounting to $172.50, I allow also the wages proved to be due to Joseph Power being $47.25. As regards the costs in this suit, I cannot of course award costs to the bottomry holder, but I do not award costs against him. I allow his proctor costs on his resistance to the claims of the salvors and master, which I compute and settle at $35. To the proctor I allow as costs $25, in the award to the salvors. These sums with the costs of Court are to be paid out of the proceeds in the registrj, and the balance to the proctor of tiie mortgagee. /. Harvey Frith, Proctor of the Promovent. C. B. Bullock, Proctor of George B. Hall the mortgagee. 877 R. LETTERS PATENT APPOINTING JUDGE. VICTORIA, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To our well-beloved George Okill Stuart, Esquire, GREETING, we do by these presents make, ordain, nominate, and appoint you, the said George Okill Stuart, to be our Commissary in our Vice-Admiralty Court at the City of Quebec in the Province of Quebec in Canada (in the vacancy caused by death of the Honourable Henry Black) and territories thereunto belonging. And we do hereby grant unto you full power to take cognizance of and proceed in all causes, civil and maritime, and in complaints, contracts, offences or suspected offences, crimes, pleas, debts, exchanges, policies of assurance, accounts, charter parties, agreements, bills of lading of ships, and all matters and contracts which in any manner whatsoever relate to freight due for ships hired and let out, transport rnnney or maritime ^^?,\\Ty otherwise bottomry, or which do anywise concern suits, trespasses,' 878 APPENDIX. injuries, extortidiis, deiiiands, and affairs civil and maritime whatso- ever between meriliants, or Letweeii owners and proiirietors of ships or other vessels, and merchants or other persons whomsoever with such owners and proprietors of ships and all other vessels whatsoever employed or used, or between any other persons howsoever had, begun, made, or contracted for any matter, cause, or thing, business or injury whatsoever done or to be done, as well in, upon, or by the sea, or public streams, or freBh waters, ports, rivers, creeks, and places overflowed whatsoever within the ebbing and flowing of the sea and high-water mark, as upon any of the shores or banks adjoining to them or either of them, together with all and singular their incidents, emergents, depeiidenis, annexed and connexed causes whatsoever, and such causes, comi)laints, contracts, and other the premises above said, or any of them, howsoever the same may happen to arise, be contracted, had, or done, to hear and determine according to the civil and maritime laws and customs of the High Court of our Adnuralty of England, in our said province, and maritime parts of the same and thereto adjacent, whatsoever, and also with power to sit and hold Courts in any cities, towns, and places in our said province, for che hearing and determining of all such causes and businesses, together with all and singular their incidents, emergents, dependents, annexed and connexed causes whatsoever, and to pro- ceed judicially and according to law in administering justice therein ; AND MOREOVER to Compel witnesses, in case they withdraw them- selves for interest, fear, favour, or ill-will, or any other cause what- soever, to give evidence to the truth in all and every the causes above-mentioned, according to the exigencies of the law; and fur- ther, to take all manner of recognizances, cautions, obligations, and stipulations, as well to our use as at tlie instance of any parties, for agreements or debts, and other causes and businesses whatsoever, and to put the same in execution, and to cause and command them to be executed, and duly to search and inquire of and concerning all goods of traitors, pirates, manslayers, felons, fugitives, and felons of themselves, and concerning the bodies of persons drowned, killed, or by any other means coming to their death in the sea, or in any ports, rivers, puVdic streams, or ceeks, and places overflowed, and also concerning nuciicm happening in the aforesaid places, and engines, toils, and nets prohibited and unlawful, and the occupiers thereof ; AND MOREOVER Concerning fishes royal— namely, whales, riggs, grampuses, dolphins, sturgeons, porpuses, and all other fishes what- Boev'er which are of a great or very large bulk or fatnesp by right or custom any ways used belonging to ns, and to the office of our High Admiral of England, and also of and concerning all casualties at sea, goods wrecked, flotson, jetson, lagon, shares, things cast over- board, and wreck of th" ses, and all goods taken or to be taken as derelict or by chance found or to be found, and all other trespasses. APrKxmx. misdemeanors, ofTeuces, ciioniiities, and maritime crimes whatsoever done and committed, or to be done and committed, a.s well iu and upon tlie liigh sea aa iu all jiorts, rivers, fiesh waters, and creeks, and shores of the sea to lii-h-water mark from all first bridges towards the sea in and throughout our said province and maritime coasts thereof and thereunto belonging, liowsoeve., whensoever, or by what means soever arisin;; or liappening, and all such things as are dis- covered and found out, as also all fines, mulcts, amercements, and compositions due and to be due in that behalf, to moderate, demand, collect, and levy, and to cause the same to be demanded, levied, and collected, and according to law to compel and command them to bo paid, and also to proceed in all and every the causes and businesses above recited, and in all other contracts, causes, contempts, and offences whatsoever, howsoever contracted or arising, so that the goods or persons of the debtors may be found within the jurisdiction of the Vice-/ dmiralty in our said province according to the civil and maritime laws and customs of the said High Court of our Admiralty of England anciently used, and by all other lawful ways, means, and methods, accinding to the best of your skill and know- ledge, and all such causes and contracts to hear, examine, discuss, and finally d.trrmine (saving, nevenhJess, tlie right of appealing to lis in Council, and saving always the right of the said High Court of our Admiralty of England, and of the Judge and Registrar of our said Court, from whom or either of whom it is not our intention in anything to derogate by these presents), and also to arrest and cause and command to be arrested all ships, persons, things, goods, wares, and merchandizes for the premises and every of them, and for other causes whatsoever concerning the same, wheresoever they shall be met with or found within our province of Quebec in Canada afore- said, and maritime parts thereof, either within liberties or without, and to compel all manner of persons in that behalf, as the case shall re(iuire, to appear and to answer, with power of using any temporal coercion, and of inllicting any other penalty or mulct according to the laws and customs aforesaid, and to do and minister justice according to the right order and course of the law, summarily and plainly, looking only into the truth of the fact ; and we empower you in this behalf to fine, correct, punish, chastise, and reform and imprison, and cause and command to be imprisoned, in any gaols being within our province of Quebec ."''oresaid, and maritime parts of tne same, the parties guilty, and violators of the law and juris- diction of our Admiralty aforesaid, and usurpers, delinquents, aad contumacious absenters, masters of ships, mariners, rowers, fishermen, shipwrights, and other workmen and artificers whomsoever, exer- cising any kind of maritime affairs, as well according to the P'oiemen- tioned civil and m.iritim_e laws and ordinance? and customs aforesaid and their demerits, as according to the statutes and ordiuauccB 879 880 AlTENDIX. nforcsiiiil, ami Uioso of our Uiiilctl Kinf^tlom of Great Britain and Ireland for i1k; Admiralty of England in that behalf made and ]irovidiil, and to d.liver and alisoluti^ly discharj^'o, and tanse and command to be di.scliiirged, whatsoever persona imprisoned in such eases who are to be delivered, and to iiromnlf^'c and interpose all manner of sentences and deerees, and to put the same in execnlion, Willi cof^nizance and jurisdiction of whatsoever other causes, civil and maritime, which relate to the sea, or which any manner of ways respect or concern the sea or ]iassM},'e over the same, or naval or maritime voyages ]icrfi)rmed or to be jierfonned, or the maritime jurisdiction aforesaid, with power also to proceed in the same accerding to the ci\ il ami nuuitinie laws and customs of our afore- said (.'ourt anciently used, as well those of mere oliicc, mixed or promoted, as at the instance of any party, as the case shall require and seem convenient; and we do, by the>e presents, which are to continue during our Koyal will and iilensure only, further give and grant nnto you, the said George Okill Stuart, our said Commissary, the power of taking and receiving all and every the wages, fees, prolits, advantages, and commodities whatsoever in any manner due and anciently belongi:ig to the said cilice, according to the customs of the High Court of our Admiralty of England, committing unto you our power and authority concerning all and singular the pre- mises in the several jilaces above expressed (saving in all things the prerogative of the Hjeli Court of our Admiralty aforesaid), together with power of deputing and surrogating in your place for and concerning the premises one or more deputy or deputies ; provided ALWAYS that the power of deimting and surrogating one or more deputy or deputies in your place and stead, shall only be exercised on good and sutlicient cause shown, and that cause to be approved liy our Governor or Lieutenant-Governor, or the officer adminis- tering the government of our said province for the time being ; and FURTHER, we do, iu our name, command and firmly and strictly charge all and singular our governors, commanders, justices of the peace, mayors, sherifls, marslials, keepers of all our gaols and prisons, baililfs, constables, and all other our officers and ministers, and faithful and liege subjects, in and throughout our aforesaid province of Quebec in Canada and the maritime parts of the same and thereto adjacent, that in the execution of this our Commission they be from time to time, aiding, assisting, and yield obedience iu all things, as is fitting unto you and your deputy whomsoever, under pain of the law and the peril which will fall thereon. Given at London, in the High Court of our Admiralty of England aforesaid, under the Great Seal thereof, the twenty-seventh day of October, in the year of our Lord one thousand eight hundred and eeveniy-tbrcc, and of our reign the thirty-seventh. IL A. Bathurst, A.E. APPENniX. 881 s. Gvographical limits of the Ancient Oovfrnment of Quebec, and of itit subsequent territorial divinions under Acts of the Purliament of the United Kingdom, His late Majesty, King George III., by his Royal Proclamation, bcarin<,' date thu 7th ihiy of Octoliur, in tlie third year of liis reign (1703), was pleased to dechiie tliat lie iiad limited and bounded tho Ooveinment of Quebec as follows : — "The Government of Quebec, bdundnd on the Labrador coast by the lUver St. John, and from theiire by a line drawn from the head of that river, through the lake 'St. Jolin,to tho south end of the lake Nipissim ; from whence the said line crossing the river St. Lawrence and the lake Champlain, in forty-five degrees of north latitude passes along the high lands which divide the rivers that empty themselves into the said river St. Lawrence fmm those which fall into tho sea, and also along the north coast of the Bay-des-Chaleurs, and the coast of the gulf of St. Lawrence to Cape Rosiers, and from thence crossing the mouth of the river St. Lawrence by the west end of the Island of Anticosti, terminates at the aforesaid river St. John." By the same proclamation His Majesty further declared that he had put the coast of Labrador, from the river St. John to Hudson's Straits, with the Islands of Anticosti and Madelaine, and all other smaller islands lying on tho said coast, under the care and inspection of the Government of Newfoundland. By an Act passed in the fourteenth year of the reign of his said late Majesty, intituled, " An Act lor making more efl'ectual provision for the governn.'int of the province of Quebec, in North America," all the territories, islands, and countries in North America belonging to the Crown of Great Britain, therein described, and all such territories, islands, and countries which had, since the 10th day of February, 1763, been made part of the Government of Newfound- land, were, during His Majesty's pleasure, annexed to and made part and parcel of the province of Quebec, as created and established by the said Royal Proclamation. The 31 Geo. III. c. 31-2, reciting that His Majesty had been pleased to signify, by message, to both Houses of Parliament, his royal intention to divide the province of Quebec into two separate provinces, to be called the Province of Upper Canada and the Province of Lower Canada, enacts that there shall be within each of the said provinces lesiiectivelya legislative council, and an assembly, to be severally composed and constituted in the raanntr thfeifcinafter described. w 882 APPENDIX. The Province of Quebec wns nccordinKly divided into tlie Provincea of Upjier and Lower Canada hy tlie Royal Proclamation, insued in pursuanco of tiie last-mentioned Act, and bearin},' date at the Castle of St. Lewis, in the city of Quebec, on the 18th of November, 1791. By the Stat. 49 Geo. IH. c. 27 ; 51 Geo. III. c. 45 ; and 6 Geo. IV. c. ()7, the coast of Labrador, from the river St. John to Hudson's Straits, and the Island of Anticosti, and all the adjacent islands, except the Island of Madelaine, were annexed to and made to form part of the Government of Newfoundland. But by the Stat, (i Geo. IV. c. 5!), s. 9, so much of tlie said coast as lies to the westward of a line to be drawn due north and south from the bay or harbour of Ansc Sablon inclusive, as far as the tifty-second dcj^ree of north latitude, with the Island of Anticosti, and all otiier islands adjacent to such part as last aforesaid are re-annexed to and make a part of the Province of Lower (Janada. By :j & 4 Vict. c. 35, s. 1, it wa.s made lawful for Her Majesty, •with the advice of Her Privy Council, to declare or to authorise the Governor-general of the paid two Provinces of Upper and Lower Canada to declare, by proclamation, that the said provinces, upon, from and after a certain day in .such proclamation to be apiiointed, which day should be within fifteen calendar months next after the pas.sing of that Act, should form and be one jirovince, under the name of the " Province of Canada," and thenceforward the said province si.ould continue and be one province, under the name afore- said, upon, from and after tlie day so appointed as afovesaid. In pursuance and exercise of the powers so vested in the Queen by the last-mentioned Act, Her Majesty did, on the 10th day of August, 1840, with the advice of Her Privy Council, .luthorize the Governor-general of the two Provinces of Upper and Lower Canada to declare, by proclamation, that the said two provinces upon, from and after a certain day, in such proclamation to be appointed, such day being within iifteen calendar months next after tlie pass- ing of the said Act, should form and be one province, under the name of the Province of Canada. By Her Majesty's Royal Proclamation, issued under the provisions of the 3 & 4 Vict. c. 35, and bearing date at the City of Montreal on the fifth day of February, 1841, it was declared that her said two provinces, upon, from and after the tenth day of the then present month of February, should form and be one province, under the name of the Province of Canada. The limits of the Province of Quebec, under the proclamation of 1763, included all the territory comprised within Upper and Lower Canada. It was separated into two provinces by the proclamation of 1791, under the 31 Geo. III. c. 31 ; and these two were re-united into one province by the Union Act, 3 & 4 Vict. c. 35 ; and the APPENDIX. 888 ' v'nce of Canada became identical with tlie former Province of Q.ijbec. The Province of Canada, by the Act establishinf; the Dominion, is again divided into the Provinces of Ontario and Quebec, corres- ponding to Upper and Lower Canada, and these now form portions of the Dominion of Canada, each with a Legislature for local purposes. ; f n n t a INDEX. ACTS OF PARLIAMENT. United Kingdom. 1. An Act to improve the Practice and extend the Juriadictioii of tlio High Court of Adniinilty of England (7th August, 184U), 2;};"). 2. An Act to make provision for the Judge, Registrar, and Marshal of the High Court of Admiralty of England (7th August, 1840), 241. 3. An Act to extend the Jurisdic- tion and improve the Practice of the High Court of Admiralty (17th May, 18G1), 247. 4. An Act to facilitate the Ap- pointment of Vice-Admirals and of Offitors in Vice-Admiralty Courts in Her Majesty's Possessions abrcmd, and to confirm the past proceedings, to extend the jurisdiction, and to amend the practice of those Courts. " The Vice-Admiralty Act, 1863," 253. 5. An Act to extend and amend the Vice-Admiralty Courts' Act, 18G3 (15th July, 18G7), 259. 6. An Act to extend the Jurisdic- tion, alter and amend the Procedure and Practice, aud to regulate the establishment of the Court of Admi- ralty in Ireland (20th August, 18G7), 2G1. 7. An Act to regulate the conduct of Her Majesty's subjects during the existence of hostilities between Fo- reign States with which Her Majesty is at peace (0th August, 1870), 28G. 8. An Act to provide for the pro- secution and trial in Her Majesty's Colonies of offences committed within the jurisdiction of the Admiralty (1st August, 1849), 208. Canada. 9. An Act respecting investigation into Shipwrecks (30th June, 18G4), 314. 10. An Act respecting the navi- gation of Canadian Wateis (22nil May, 18G8), 315. ACT OF CONCRESS. Act of Congress of the United States of America (29th April, 1SG4, ch. G!»), fixing certain rules aud re- gulations for preventing colli.'sions ou the water, 308. ADMIRALTY. 1. The "Admiralty" shall mean tiie Lord High Admiral or the Cora- c imc. inhf.x. miwM .ow *or cxecufmR \u>^ oHico, 'i« V ,. - ' . J, |, 2r» t. 2. \ , IW that Act >\)!ill ivtVoct »W)Vov ftl»- foint any ^ i. d-Aihninil, or any Ju(l<,'0, rvO!»iatmr, Marslml, or other officer of liny ViiO-Adminilty (-ourt by vt'arrant from the A hniralty, ami »iy LcttefH PattMit under s. d (»f the lllj^l, /.nrtof Adnuralty of Knghxnd. I'j., 8. 7, p. -T)-). 3. The Admiralty may ftt. any timo revoke tlio ai)i)ointnK'nt of my I)oi)iity .lndj,'o, Deputy llogistrar, or Deputy Marshal appointed under 30 & 31 Vict. c. 45, 8. 13, p. UnO. 4. Her Majesty may, hy Conimis- Bion under the (ireat Seal, empower the Admiralty to establish one or more Vice- Admiralty Courts in any British po.-scssiou. lb. s. 10, p. 201. ADMIRALTY JUIUSDICTION. 1. The Admiralty has jurisdiction in eases of jxissession, at tiie suit of owners of ships to obtain ]iossession thereof. Tim Ilu'uhc—Kempthom, 2'). (The nature of the jurisdiction in cases of possession antecedent to the passing of the 3 &, 4 Vict. c. G.J, which enlarged it, will be seen from the judgments of Lord Sfoircll upon that subject, which are collected together in Tritchard's Admiralty Digest.) 2. The Admiralty has jurisdiction in cases of collision occurring on the high seas, where both the vessels are the property of foreign owners. The Anne Jnhrtnne — Lafneii, 43. 3. DidicultioH as to the jurisdic- tion of Admiralty, which hay tlio 3 it 4 Vict. c. (i'r passed on 7th August, 18 K) ; '*Tho Admiralty Court Act, iMil " (21 Viet. c. 10); and "The Vice Admirdty Courts Act, 1H03" (20 Vict. c. 24), pp. 23.'), 217, 2.>3. Matters in respect of whicli Vice- Admiralty Ctau'ts have jurisdiction specified, ih. 2'i''>. 4. As to jurisdiction in respect of forfeitures of sliips f^)r olVonces against "The Foreign Kidistment A^ct, LS70," see 33 and 34 Vict. c. 90, 8B. 19, 20 & 30, pp. 280, 292. 295, 297. " The Admiralty Court Act, 1801," does not extend /icr sc to the Vice- Admiralty Courts. The Citij (>J -/'«- tenhunj, 351. ADVOCATES. 1. All persons entitled to practise as advocates, barristers-at-law, proc- tors, attonioys-at-lav;, or solicitors, in the Superior Courts of a British possession, shall be entitled to prac- tise in the same respective capacities in the Vice-Admiralty Court or Courts of such possession, and shall have therein all the rights and privi- leges, respectively, belonging to .ad- vocates, barristers at-law, proctors, attorneys-at-law, and rjlicitora, and shall in like manner be tiubject to the .authority of t'.o-. r,o!' To- the time being lawfully exercising the IVDRX. .•)b7 nffioo of .hu]ffo of siicli Court. .'»0 «k .'U Vict. 4.11, fl. IT), p. L'(iO. 2. Noii-piiyinoMt of foes rccei -ed •)y ftdvociitc or proctor for UcgiHtrar n brcficli of liscipliiio of wliicli tho Court may tiiko coo;niziuu;(; in a sum- nmry mminor. AV juirte Drobf. 1. Soo I'nocrouH. APPKAL. An Appeal from n doorco or order of a Vico-Ailiuinilty Court lies to Hor Miijesty in (.'oiiiicil ; but no aj)poiil HJmll 1)0 allowed, save by por- mitoiou of the Judge, from any de- cree or order not hiivin^r (ho force or etfcct of a defmito sentence or final order (20 Vict. c. 24, s. 22) ; appeal to bo made within aix months, 8. 23, p. 2.) 7. APPKXDIX. Contents of, 2;].'5. See AcTH op PAHr,r.\Mi;NT j Acts OF Pauijament op Canada ; Act OK CONOIIESS OF TIIK Un'ITKO SrATK.S ; "FouKioN KvfjsTMEXT AcT, 1870 ;■' KkGULATIONS ] I.NT.AND XaVIO.VTION' ; QuEHEc ; Nova Scotia ; Commission op Judge. APPOINTMENT. Of Vicc-Admiral, or any Jud"o, Registrar, Marsiial, or other ofHcer of a Vice- Admiralty Court establisiied in the British Possessions. 2(! Vict. c. 24, as. 3, 4, '>, G, & 7 ; p. 2.34. ASSESSORS. Opinions of in the following cafses : I, The Secret, 1:!3. 2. The Hibernian, 155. 3. T»E Thames, 222. 4. 'I'm; W-«- i.KT, :i.*).5. 6. The Ci; v^r il, 300. ilUTTO.MPV. 1. Jurisdiction in respect of Bot- tomry or Rospondentift Bonds con firmed l)y the " Vico-Adniiralty Coiirta' Act, 180.1;"' p. 2.'').'). 2. Advances wiiich m.iy lioconio the suliject of bottomry, must bo ad- vances made for the service of the ship during the particidar vi vago for which she is engaged. Tin' Adonis — Livoie, 125. 3. A bottonu'y bond given l)y tiio maatcr after the advances had all been made is valid, provided they wore made with an understanding that such bond should be (.'iveii, ii. 4. The vahdity of tlie bond is not affecteil by the circumstanc of tiio money being advanced before an in- tervening voyage, if given for ad- vances necessary for tiio ve.- ol to prosecute and completo tho or, _'inal voyage, ib. 5. I ulessfraud or collu.'iion pro\ od, or tiiat otiier credit exi.stcd, evciy fair i)resumption is to bo allowed to uphold tlie bond, //;. Sec Nova Scotia, 4. BLACK, The Hon. Henry. Opinions of noticed by tiio Cliici Justice of Nova Scotia, 348. See PREFATOHV Notice to this Volume. BROUCHAM, (LORD). As respects the Act 14 & ]■"> Vict, c. 09, commonly called Lord c i; 2 388 i^'Pi^'X- I'.roughani's Aft, see The C'ourirr- Wyutt, 91. BY-LAWS. See Vis Major. CANADIAN WATERS. Decisions bearing on the rules and regulations coiitaiued in the Act of tlie Lcgishiture of the Province of Canada "respecting the navigation of Canadian waters" : — 1. The Aukora, 52. 2. The Arabian, 72. ;{. The Alma, 72. 4. Tub James McKenzie, 87. The same rules and the same pre- cautions for avoiding colUsions and other accidents as are now adopted in the United Kingdom and other coim- tries prevail throughout all the waters of the Dominion of Canada. 31 Vict. c. 58, Dominion of Canada, p. 315. CARGO. As to short delivei7 or damaged, pp. 350, 374. Sec Jurisdiction, 15 ; Nova Sco- tia, 5. CHIEF JUSTICE. When the office of Judge of a Vice-Admiralty Court in any British Possession becomes vacant, the Chief Justice, or the principal judicial officer of such Tosscbsion, or the per- son for the time being lawfully au- thorized to act as such, shall Ijc tx ojfii-i:) Judge 01 the Vice-Adinirulty Court, untilanotitication is received that a formal appointment to that office has l)ecn made by the Admi- ralty. 26 Vict. c. 21, s. 4, p. 254. COLLISION. 1. The non-compliance by a vessel with the Trinity House regulations, as to the exhibition of lights, will not prevent the owners from reco- vering damages for injuries received from another vessel by collision, if the officers of the latter vessel saw the former, and knew her position. 2'he Martha Sophia— BomImI, 14. 2. Where a collision occurs, with- out blame being imputable to either party, loss must be borne by the party on whom it happens to alight. The Margaret— Clark, 19. 3. Where the evidence on both sides is conflicting and nicely ba- lanced, the Court will be guided by the probabilities of the respective cases which are set up. The Ailsa — Alexander, 38. 4. Where damage is occasioned by unavoidable accident, arising from foggy weather, the loss must be sus- tained by the party on whom it has fallen. The Anne Jokmne — Larsen, 43. 5. The law imiwses upon a vessel, having the wind free, the obligation of taking proper measures to get out of the way, ib. G. Where acollisiou occurs between two sailing vessels from the non- observance of the rule respecting lights, the owner of the vessel by which Kucli wile has boon infringed, cannot recover for any damage sus- INDEX. 389 tallied in the collision. The Aurora •—■Jforrhoii, 52. 7. Between a British vessel and a foreign ship within Canathan waters, the duty and the right of the parties is to be determined by the Act regu- lating the navigation of such waters, ib. 8. For a collision occasioned by the mismanagement of a pilot taken on board and placed in ciiargo of a ship, in conformity with the re(piire- ments of the law, — enforced by a penalty, — the vessel is not liable. The Lntm— Clark, 58. 9. When a vessel is lying at anchor and another vessel is placed volun- tarily, by those in charge, in such a position that danger will happen if some event arises, which is not im- probable, those in charge of the second vessel must be answerable, ib. 10. Whenever two vessels are seen from each other, even in parallel courses, provided tliey are close to each other, or in any coiu'se so that there is reasonable probability of a collision, it is their duty, unless there be some impediment, to obey the rule prescribed by tiie Act respecting the navigation of Canadian waters. Tlie Arabian and tlie Alma, 72. 11. Where a steamer, coming down the St. Lawrence, upon a dark night, meets a sailing vessel, and those in cliarge of tiie steamer are in doubt what course the sailing vessel is upon, it is their duty to ease her engine and slacken her speed, until they ascertain the course of the sail- ing vessel, ib. recovering damages 12. The rule of the Admiralty Court, tiiat in case of mutual blame the damage was to be divided, is su- perseded by sect. 12 of the "Act respecting tlie Navigation of Cana- dian Waters," and the penalty on a party neglecting the rules enjoined by sect, 8 is to prevent the owner of one vessel from the other also in fault, ib. 13, A steamer going up the St. Lawrence at night, on a voyage from Quebec to Montreal, saw the light of another steamer coming down tho river, distant about two miles ; and when at the distance of rather more than half a mile, took 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, having ported her helm on seeing the other, a collision ensued : Held, that the veesels were meeting each other within the meaning of the Act regulating the navigation of the waters of Canada, and that the steamer going up tho river was solely to blame for tlio collision in not having ported iicr helm. The James McKenzie — liuiUlle, 87. li. A vessel having the wind free is bound to take proper moans tngot out of the way of a vessel close hauled. The Courier— Wi/att, 91. 15. The owners of a vessel having a branch jiilot on board are only ex- empt from liability for damage where the damage is caused exclusively by the negligence or unskilfiiinuss of the pilot, ib. 31)0 INDEX. Sec The Cordon, 198. IG. Of two vessels beating to the windward on opposite tacks, it is the duty of the vessel on the starboard tack to keep her course, and of the vessel on the port tack to give way. The lAhertij—Ouellet, 102. 17. It is not enough to show that the accident could not be provonted by the party at the moment it oc- curred, if previous measures could have been adopted to render the occurrence of it less probable, ih. 18. Collision by two vessels while sailing, one on the starboard tack, close to the wind, and the other on the port tack : Held, that the latter was to blame for not porting her holm in time, and that the former complied with the rule of the road by keeping on a wind close hauled. The Tor muh— Crawford, 172. 19. The i)ilot in charge of a ship is solely responsible for getting her under weigh in improper circum- stances. Defence in a cause of da- mage upon this ground sustained in the case of a vessel leaving the port of Quebec and running foul of another ship. I'he An. 29. But this rule was qualified by the Act respec'iiig the Navigation of Canadian Waters, which agrees with the 298th section of the Merchant Shipjiing Act, ib. 30. In " The Merchant Sliipjiing Act Amendment Act" (23 k. 20 Vict. c. 03, 8. 29) this clause was repealed, and the old rule of dividing the da- mage was re-established. But the rule and the penalty provided ft)r the breach of them in Canadian waters remained unchanged. 31. The enactment in "The Mer- chant Shipping Act Amendment Act, 1802," to the effect, that if in any case of collision it appeared to the Court that such collision was occa- sioned by the neglect of any regula- tion under that Act, the ship so neglecting should be deemed to be in fault is so far changed, that if in any case of collision it is proved to the Court that the regulations under " The Merchant Shipping Acts, 1854 to 1873," have been infringed, the ship by which those regulations were so infringed shall be deemed to be in fault. " Merchant Sliipping Act, 1873," s. 17 ; p. 329, and note. See the Dominion Act (31 Vict. c. 58, s. 11). 32. Tlie Court of Vice-Admiralty exercises jurisdiction in a case of col- lision in the harbour of Halifax. The Wavelet, 354. See Crcss Causes ; Damage done PY ANY Ship ; Master of Siiir, 2, 3. COMPULSORY PILOTAGE. 1. For a collision occasioned by the mismanagement of a pilot, taken ou board and placed in charge of a ship in conformity with the reipiire- ments of the law, enforced by a penalty, the vessel is not liable. Tlie Lotus — Clark, 58. 2. Tiie owners of a vessel having a branch pilot on board are only ex- empt from liability for damage, where the damage is caused exclusively by the negligence or unskilfulnoss of the pilot. The Courier— Wijatt, 91. 3. For damages done by a col- lision in the harbour of Quebec, oc- casioned by the default, negligence, or unskilfulness of a branch pilot, the owners are not responsible. The Anglo-Saxon — Westgarth, 117. But see subsequent enactment in "The Pilotage Act, 1873," of the Dominion of Canada ; p. 230, in note. 4. In Nova Scotia there is no compulsory pilotage in the English sense of the term. Hence, there being a direct privity between the pilot and the ship, the latter is liable in Admiralty for damage caused by his acts. The Wavelet, 354, 356. 5. The rule of the Engli-h Admi- ralty regulating the employment of pilots has never been adopted or np- plied, under the laws of the United States. The China, iM. G. Exemption from lial)ility is not taken away from the owners, though the master has the power of selection from uiuongst a nutnber of pilots. The Hibernian — Smith, 148. 892 INOKX. 7. Where an ocean steamer de- scending the river St. Lawrence op- posite a buoy designating a bend in tlic channel for her to turn, instead of doing so, crossed over and sunk a barge in tow of a tug steamer on the opposite side : Held, that the tug Bteanier and her tow were not to blame, by reason of an alleged cus- tom for ascending vessels to stop below the buoy for descending ves- sels to pass it first ; and that, if there were such a custom, it would afford no excuse for a descending steamer coming into collision if she could have avoided it. But it ap- pearing that the cause of collision was, exclusively, tlie act of the pilot of the ocean steamer, exemption from liability granted to the OAvner. The Thames— Hyde, 222. 8. No owner or master of any ship shall be answerable to any person whatever for any loss or damage oc- casioned by tl.e fault or incapacity of any qualified pilot acting in charge of such ship, within any place where the employment of such pilot is com- pulsory by law. See 388th section of " The Merchant Shipping Act, 1854," and 14th section of the Act respectingthe navigation of Canadian waters, p. 322. But a change has been made by the i5Gth section of An Act of the Dominion Parliament, "The Pilotage Act, 1873," which enacts, " that after its commence- ment, no owner or master of any ship shall, in any case, be compelled to employ or to give his shin into the charge of a pilot, notwitiistanding any Act making the employment of a pilot compulsory." By the 92nd section of this Act, the 14th section of the " Act respecting the Naviga- tion of Canadian Waters" above mentioned is expressly repealed. See Owners, 1, 2, 3, 4. CONFLICTING DECISIONS. Decisions with respect to the lia- bility of the owner of a vessel for damage done by her while in charge of a pilot, given before the passing of the Act of the Canadian Legisla- ture (12 Vict. c. 114, s, 5), ai-e not applicable under the law as it stood, after having been subjected to the important changes made by that Act. The Lotus— Clark, 58. CONGRESS. See Act of Congress of thk United States of America. CONSTRUCTION. See Mariner's Contract, 1, 2, 3,4. CONTRACT. See Salvage; Mariner's Con- tract ; Special Contract. COSTS. 1 . The practice of the Court is not to give costs to either party, where a collision has occurred from ine- vitable accident. l^lie Marnaret — Clark, 1 9. See The Anne Johannb, 43 J The McLeod, 140 ; and The Harold Harfaager, 208. 2, Nor, whei'C tho dainaofcs liave been found to proceed from the fault INPRX. 393 of the pilot alono. The Lotus, i38. See The Thames, 222. 3. Not usually decreed in Courts of Admiralty against seamen, who are unsuccessful in their suits. A decree for costs would, in most cases, subject the seaman to imprisonment, without being productive of any real advantage to the other party. The Washington Irving — Durant, 97. 4. A party who does not accept a tender made in current bank-notes, or a cheque on a bank, drawn by a merchant of established credit, ex- poses himself to the payment of costs to the adverse party. The British Lion — llann, 114, 5. Where evidence was evenly ba- lanced and suit dismissed, no costs were allowed. The Ailsa — Alexander, 38. COURTS. For the Jurisdiction of the Courts of Admiralty, see Admiralty Juhis- diction; Customs; Ckoss Causes; Droits of Admiralty ; Jurisdic- tion ; Vice-Admiralty Court ; Ke- VENUE. CROSS CAUSES. If a cause of damage by collision be instituted in any Vice-Adrniralty Court, and the defendant institute a cross cause in respect of the same collision, the Judge may, on applica- tion 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 judg- ment therein, the Court may, if it think fit, suspend the proceedings in the former cause until security has been given to answer judgment in the latter cause. 2G Vict. c. 24, s. 21 ; p. 257. CUSTOMS. See Revenue Cases. DAMAGE, " Done by any Siiir." Vice- Admiralty Courts have juris- diction, in respect of claims, for dam- age done by any ship (2G Vict. c. 24, s. 10, p. 255), as in a case of damage to a wharf in the harbour of Halifax. The Chase, 361. On this head, see the case of The Mahnna, 1 Lush. 493, and the judg- ment of the Privy Council affirming that of the High Court of Admi- ralty. 1 Moore's P. C. C. p. 357 (New Series). DERELICT. In no case, however meritorious the service, does the High Court of Admiralty of England decree more than a moiety for salvage. The Marie Victoria — Ellis, 109. DEN MAN, (LORD). As respects tlie Act 6 & 7 Vict, c, 85, commonly called Lord Dcnman's Act, see The Cornier — Wyatt, 01. DEPUTY JUDGE. See Judge. DEPUTY REGISTRAR. See Registuak, iM)l INDEX. DEPUTY MA US HAL. See Maiwiial. DESERTION. By the (.leiienil Miiritimc liUW, as well iis by tliu Mciu'ijaiit Siii])j.ing' Aft, doscrlioi) from the ship in the course of the voyage is held to bo a forfeiture of the antecedent wages eai'ued by tlic Jiarty. The Wimhinij- ioii Irvimj — JJurant, 97. DETENTION Of Seaman. See Mkuciiant Sim-- piNO Act, 1873, s. 9, p. 328. DEVIATION. See Mauinior's Contract, 1, 2, 3,4. DROITS OF ADMIRALTY. The Vice-Admiralty Com-ts have jurisdiction in all matters arising out of Droits of Admiralty. 2G Vict, c, 24, s. 11, p. 2D5. EVIDENCE. 1. Entry of the desertion in the official log-book clcenicd sufficient prodf, unless the seaman can show, to the satisfaction of the Court, that Jic had sufficient reason for leaving the ship. I'/m Wush'utijtoii Irving — Dura lit, 97. 2. I'ersons who have the control jind direction of vessels — though in- terested in clearing themselves of fault, and throwing it upon the other party — are no longer incompetent to give evidence, leaving the question of credibility to the discretion of the (jourt. The Conrkr—Wyatt, 9 1 , 9.^>. 3. Affirniativetestimony is entitled to greater weight than negative. The. Anglu-Sdxon — Wei-tgarth, 117, 120. EXCEPTIVE ALLEGATION. The admission of an allegation, exceptive of the testimony of a pilot on the ground that he was an inte- rested witness, as being responsible to his employers for what occurred while he was the pilot of the vessel, suspended till the hearing of the principal cause, when the Court finally rejected it. Tlie Courier — Wyutt, 91, 95. FAULT. See Inscrutable Accident. FEES. 1. Tlic Courtdisclaims all jurisdic- tion in the m.itter of fees. The Regis- trar may, in his option, require theni when the service is pe -formed ; or he may give credit, and then bis re- course, it they are not paid, is in the ordinary courts of the country. Ex parte Drolet, 1, 2. In the High Court of Admiralty the fees of the Judge and ol^cers of the Court abolished and salaries sub- stituted (3 i 4 Vict. cap. GG, p. 241) ; but retained in Vice-Admiralty Courts. See High Court of Au- uiralty oe England, 2; Judge, 14; Nova Scotia, 7. FISHERIES. 1. A foreign vessel illegally fishing in British waters witiiin three miles kt^M INDEX. 3o Foreign Enlistment Act, 1870," s. 1!), p. 2t)l. 2. Court of Admiralty shall mean the High Court of Admiralty of England or Ireland, the Court of Session of Scotland, or any Vice-Ad- miralty Court within Her Majesty's dominions. lb. s. 30, p. 297. See FiSUERiES. FOUL BERTH. If one vessel comes to anchor, it is the duty of those in charge of any other vessel anchoring near her, to do so in such a position as that the vessels may swing with the tide without risk of coming together. TheRockaway — liossance, 121), 130-1. FREE PILOTAGE. See CoMPULSouY Pilotage. GOVERNOR. 1. In any British possession where the oflice of Vice- Admiral is, or shall become vacant, the Governor of such possession shall be ex offin'o Vice- Admiral thereof, until a notification is received that a formal appointment to such office is made by the Admi- ralty. 2G Vict. c. 24, s. 3, p. 254. 2. On any vacancy in the office of Judge, Registrar, or Marshal of any Vice- Admiralty Court, the Governor of the British possession in which the Court is established aliall, as soon as it is practicable, communicate to one of llcr Majesty's Principal Secre- taries of State the fact of tiie vacancy, and the name of the person succeed- ing or appointed to the vacant office. 20 Vict. c. 24, 8. 0, pp. 2.'54-.^). 3. On the Governor of any Britisli possession, who is also Vice-Admiral thereof, vacating the office of Go- vernor of such possession, the othce of Vice-Admiral of the same pos- session shall thereupon be deemed to bo also vacant within the meaning of the third section of "The Vice-Ad- miralty Courts Act, 18G3." 30 Ji 31 Vict. c. 45, s 4, p. 259. GOVERNMENT OF QUEBEC. Ancient limits of, p. 381. HELM. Time for reflection to u allowed before porting. 7%e Manjaret — Clark; 19. Sec Collision, 25. HIGH COURT OF AUM'HVt^TY OF ENGLAND. 1. An iVct to improve the practice and extend the jurisdiction of the Higii Court of Admiralty of England. 3 & 4 Vict. c. G5, p. 235. 2. An Act to make provision for the Judge, Registrar, and Marshal of the High Court of Admiralty of England. 3 A 4 Vict. c. 6G, p. 241. The Judge of not to sit in the House of Commons. lb. By this Act the remunerating of the Judge, HogiKtr.Tr, :ind Marslial byfees is abolislied, and fixed salaries IXDKX. a97 Hiiltstitiitcd. A fiiiul, ciillcnl "Tlio Fee Fmul of tlio lligli Court of Ad- miiiilty," estiiblislicd, j)p. 241, 24(5. li. Tlio High Court of Admiralty of England may revise the charges of any practitioners in any Vice- Admiralty Court, 256. See Table op Fees, ;). HIGH COURT OF ADMIRALTY OF IRELAND. See Ireland. HOME PORTS. See Nova Scotia, 4. IMPERIAL PARLIAMENT. See Acts op Parliament. INEVITABLE ACCIDENT. 1. Where a collision occurs with- out blame being imputable to eitlier party, loss must be borne by the party on whom it happens to alight. The Margaret— Clark, 19. 2. Is that which the party ^.harged with the offence could not possibly ])revent by the exercise of ordinary care, caution, and maritime skill. Tlie McLeod— Wallers, 140. INLAND NAVIGATION. 1. Regulations respecting collision api)€nded to Order in Council dated 30th November, 1864, apply to ships belonging to the United States of America, when navigating the inland waters of North America, whether within British jurisdiction or not, pp. ;U2, 31.3. 2. As to the maritime commerce of the Western Lukes not being in- land navigati(jn. Opimon ok the Supreme Court ok Miciikjan, p. 3-'Ii. See Prekatory Notice to this Volume. INSCRUTABLE ACCIDENT. In a case of collision where there is reasonable doubt as to which party is to blame, the loss must be sus- tained by the party on wiiom it has fallen. The liockawuy — Bossauce, p. 129. INTERPRETATION OF TERMS. 1. For the purposes of " The Vice- Admiralty Act, 18G3," the term "ship" includes " every description of navigable vessel not propelled by oars only, whether British or foreign." 26 Vict. c. 24, s. 2, p. 254. 2. In " The Vice- Admiralty Coiu-ts Act Amendment Act, 1867" (30 k 31 Vict. c. 45), the following terms shall have the respective meanings therein assigned to them, that is to say :— 3. " Judicial powers " shall mean all powei-s and authorities which may be lawfully exercised by, and all duties by law imposed upon, any Judge in the trial, hearing, or pro- gress of any cause. 4. " Minist ••nl powers " shall mean all povvers and authorities which may be lawfully exercised by, and all duties by law imposed upon, any such Judge, not included under the term "judicial powers." " Sit," or « sitting," shall rneau sit or sitting for the exercise of judicial powers. yi)H INtlF.X. wlictlior in Court or in clmmbcrH, p. li.V.). .'). Ah to tho term " Mkrtino end ON," HOC OllKKU IN CoUNLil. OK 30TII .ii i,v, l.sr.s, |)p. :\-2'), .")-'7. Soo " FouKKiN Knmhtmknt Act," 8. 30, pp. 280, 2DG. lUHIAXD. An Act to extend tlie.TnriBiliction, alter, and ainenil tiie I'rocediiro and IVactice, and to regulate the Krere the ofVice of Judge of any Vice-Admiralty Court is vacant, the Chief Justice, or the principal judicial oilicer, or the person for the time being lawfully authorised to act as such, to lie ex offir'v) Judge until a notification is received of a formal appoiutnicut l)y the Admiralty. 20 Vict. c. 21, s. 4, p. 2.-j4. 2. On a vacancy in the office of Judge, Registrar, or Marshal of any Vice-Admiralty Court in any British possession, the fact of the vacancy, and the name of the person succeed- ing or aiipointed to the vacant office, to be notified to the Homo Govern- ment. 20 Vict. c. 21, s. 0, p. 204. 3. On any vacancy occurring in the office of llegistrar or Marshal, the J uvlge may, with the approval of the Governor, a])point some person to the vacant othco, until a notification iH received that a formal appointment ^hereto lias been made by the Admi- ralty. III. 8. 5, 1). 2.')1. 4. Tho Judge may also apjioint Homo person to act aa Kegistrar or Marshal (hiring the tomi-orary ab- sence of cither of those otlicers. Ih, 5. Tlie Judge of any Vice-Admi- ralty Court may, witli tho approval in writing of the Governor, a]>point one or more Deputy Judge ur Judges to assist or represent him in tho execution of hie judicial powers. 30 k 31 Viet. e. 4."), s. ;"i, p. 2.-)l). 0. .Such Deputy Judge may exer- cise all the judicial powers of tin Judge. Jl>. s. 0. 7. Any Deputy Judge may sit .'t the principal seat of govermncTa (>r elsewhere in the possession at the same time that the Ju.'.ge or any other Deputy J udge is sitting, and cither at the same or at any other place in such possession, and whether the Judge is or is not at that time within tho posse fb'; on. lb. a. 7, p. 200. 8. The Judge may require any Deputy Judge or Judges to sit with him in the same Court, and in such case the decision of the majority, or, if they are equallydivided in opinion, the decision of the Judge, shall be the decision of tho Court ; and such decision shall be subject to the same right of appeal in all respects as if it had been made by the Judge alone. Ih. s. 8. 'J. The Judge may direct at what iNni:x. m)i; |>Iacc nud time any Dc|)iity Judgo Hliall sit, and what cnuHOH hIihH he heard hcforo him, iiiid f,'oueriilIy make sucli arrauKoments iih to liini shall Hceiu jiroper as to the divmion and despatch of the business of the ('uurt. Ih. 8. 9. 10, The Judge may, with the ap- proval in writing ot the (Jovornor, revoke the appointment of any Deputy Judge or Judges, but the ap- pointment shall not be dotcrmiucd by the occurrence of a vacancy in the office of the Judge, lb. s. 10. • 11. The Judge may, if he tliinkw fit, from time to time delegate all or any of his ministerial powers to any Deputy Judge or Judges. lb. a. 11. 12. The Judge may from time to time, if he thinks fit, appoint any competent persons to act respectively as Deputy Registrars and Deputy Marshids of the Court, and may, if ho thinks fit, at any time revoke any such appointment, but tlie appoint- ment shall not bo determined by a vacancy in the office of the Judge. lb. a. 12. 13. The Admiralty may, if they think fit, at any time revoke the appointment of any Deputy Judge, Deputy Registrar, or Deputy Mar- shal appointed under this Act. lb. s. 13. 14. Any Deputy Judge, Deputy Registrar, or Dei)uty Mar.sh;d, to be entitled to the same fees in re- spect of any duty performed by him as would be lawfully payable to the Judge, llegislrar, or Marshal respec- tively for the pcrformaii " the sanio duty. //(. s. 1 1. 15. ConmiiHHion of the Jmlgo of tiio Vice-Admiralty Court of the Province of (,>iiel)ec. 377. See Loai) Hkiii AnMiiiAi,. JUDICIAL COMMITTER OV TlIK PRIVY COU.NCIL. Opinion of the Lords of the Ju- dicial Committee affirming the judg- ment of the Vice-Admiralty Coiu-tof Lower Canada in the case of Tlit; Maryaret, 23. JUDICIAL powi-:n.s. Soo Intkui'kktatio.v ok Tkkms, 3. JURISDICTIOX. 1. Although the Court abr-itains from interposing ita authority iu cases of mere disputed title, its juris- diction over causes of ponsemon haa been constant and uninterrupted. The Ilaiih'n—Kemiithnrii, 25. 2. The occasion of the exercise of this jurisdiction arises generally iu cases between part-owners who can- not agree respecting the employment of their ships. lb. 3. Tiic authority of the Court to detain the ship at the instance of the real owner against a mere wrong- doer is undoubted. lb. 4. When the Court has original jurisdiction of the princip.al matter, it has also cognisance of the inci- dents thereto. lb. a. The Court has jui'isdiction in cases of collision occurring on the high seas, where both vessels are the I 400 ixnr.x. property of foreij^n ownci-s. Tin Ainu: Jofatuie — Larsi'ii, 4H. G. Tlio powor of the LogiHlatnro of Canmlii cxteiuls to forci^uui's when witliin our own jurimliction. 7'he Aurora— MorrUoH, .)2. 7. As to other matters in respect of \vhicli the Vice-Achuinvlty Courts have juriHtUutioii, 8cc 20 Viet. c. 21, 8. 10, p. 250. 8. The jurisdiction of tiio Vice- Admiralty Courts ill Iter Miijcsty's jiosscssions abroad tuay ho exorcised wiietlier the cause or riglit of action has arisen within or heyond the limits of such possifssion. II). s. 13, p. 20G. 9. Except where it is expressly confined by that Act to matters arising within the possession in which the Court is estiihlished. lb. 10. All proceedings for the cou- dcnmation and forfeiture of a ship, or ship and equipments, or arms and ammunition of war, in pursuance of " TheForcigi: Enlistment Act, 1870," Khali he had in the Court of Admi- ralty, and not in any other Court. 33 k 3i Vict. c. 90, s. 19, pp. 28G, 291. 11. The Court can, under the 2G Vict. c. 24, s. 10, enforce the pay- ment of reasonable towage, but lias no a-athority to enforce an agreement to employ a particular steam-tug either fur a dcfmite or an indoriiiito quantity of work. Thi: British Lion — Mann, 114. 12. "The Merchant Shipping Act, lHr)4 "excludes the jurisdiction of the Admiralty in suits for wages when tiie amount due is less than .'50/, sterling. Where the balance duo to the master of a ship appeared to he under that amount the claim was dismissed, withoui an exception lO the jurisdiction pleaded. jf'Af ^Iitr- ijiirethn fUeveniioii, 192. See the case of The City of Petrrs- bunj, 343, 3.')2, S.^S. 13. The Vice Admiralty Court at Halifax in Nova Scotia exercises jurisdiction in the case of a vessel injured by collision in the harbour of Halifax. The Wurdd, 3.54, 357. 1 4. Also where damage was caused to a wharf by a vessel. The Chane, 361. l'). " Tiie Imperial Act " (24 Vict, c. 10), wiiereby the jvn-isdiction of the High CVmrtof Admiralty of Eng- land has been extended and the practice improved, confers jiu'isdie- tion upon it over claims for damage to cargo imported into England or Wales, and for wages due to seamen under a special contract. 2'he City of Pdershurg, 3.')0. See "Imperial Act," 24 Vict.c. 10, s. G, p. 248. IG. A similar jurisdiction has been conferred upon the High Court of Admiralty of Ireland. 30 & 31 Vict. c. 114, ss. 33, 37, p. 2G8. 17. But withheld from the Courts of Vice-Admiralty, as not included in the Act 2G Vict. c. 24, p. 2:)3, et seq. See Admiualty Juiiisuiction; BoTTOMKY ; Collision ; Couins ; CusroMS ; Duoits of Adaiirai.tv ; Fees ; "Foueign Enustme.vt Act ;" INDKX, tOl ForiEifiN Vkssf;i,.s ; Fom imtuiikh ; Inland Navkution; MA.iTKii ok Snip; MATBniAL Mk.\; Moutoaoe . Navy; Nova Sotia ; Pikateh ano PlHATICAI. VE'SSKLi J PoSrtliS.SIO.V ; PnOCTORS ; SaI.VAOB ; St'ECIAL (.'ON- TiiACT ; TiTLK ; Thadb and Naviga- tion Lawh; Vicb-Admiiumy Coukt; Wages. JUSTICES OF THE PEACE. 1. Whoro a liniitorl authority is given to jiiHticoH of the peace tlioy cannot extend their jurisdiction to objects not witliin it, by finding as a fact thai which is not a fact ; and their warrant in such cases will bo no protection to the officer who acts under it. Tl^e Ilaidee—Kempthoni, 25. 2. Under section 523 of "The Merchant Shipi)ing Act, IQ'A" a slup cannot be seized upon an order made by justices of the peace against n person who, at the time, is neither owner nor intrusted with the pos- session or control of lier, //;. LAKES. As to the nature of the maritime commerce of the Western Lakes. See Inland Navigation. LIEN. A maritime lien is not indelible, but may be lost by delay to enforce it where the rights of other parties have intervened. The Huidee Kempthorii, 25, LI(;fiT.s. 1. By the Admiralty rogtilations, and by tiio Act of tlio Lfgislaturu of Caiiadd, which makes piocisoly the same provision, sailing vessels, when under woiiL,'h, are reipiirod, l)etweoii suiLsot and sum-ise, to exliibit a green light on the starboard side and a red light on the port side of the vessels ; and such ligiits are to bo constructed as stated in such rogulatijus. T/w Aurora — Morrtnon, 52, 2. Rides concerning lights, issued in pursuance of " 'i'ho Mercliaiit Shipping Act .Amendment Act, 1. SO-'," and of an Order in Council, dated Oth Jamuuy, 1HG4, .'501. 3. The same rules adopted in tiio Province of Canada by an Act of the Legislature, passed 30th Juno, 18G4, 31.'). 4. In the United States of America, by an Act of Congress, passed on i'Oth April, 18G4, .308. 5. And in the Dominion of Canada, by an Act passed on 22nd May, 18G8, 31,'). Diagrams to illustrate the use of the lights carried by vessels under the regulations and this Act, 323. 7. A steamer, while at anchor, showed a green and white light in- stead of a white light only : Held to have been in faidt. The Larue — Martin, 177. LIMITATION. 1. There seems to be no fixed limit to the duration of a maritime lieu. The II(iidei'-^Ker,>pth-;rr,, 25. 2. It may be lost by negligence or n D 402 INDEX. delay where tlic rights of tliird iiavties may be coinpvDinised, /'-. LOG r.OOK. See EviDKN'CK, 1. LOOK-OUT. The want of a competent ami | vigilant look-out exacts, in all cases, ] from the vessel neglecting it, clear | and satisfactory jiroof that the mis- furtunc cncountei'cd was, in no way, attributable to her misconduct in this particular. The Secret — Davison 133. Nor does it seem judicious that the man stationed as the look-out should be a foreigner speaking English imperfectly, and consequently liable to make reports slowly and in- correctly, luid perhaps, more or less, unintelligibly. The Orieidal— Morris, \U. See The Courier, 91 ; The Gor- don, 198. LORD HIGH ADMIRAL. Nothing contained in the " Vice- Admiralty Courts Act, 18G3," shall be taken to affect the power of the Lord High Admiral or the Com- missioners for executing his office, to appoint any Vice-Admiral or any Judge, Registrar, or Marshal, or other otticcr of any Vice-Admiralty Coui-t, by warrant and by letters patent, issued under the seal of the High Court of Admiralty (20 Vict. c. 24, s. 7, p. 25.')). MANAGEMENT OF SHIP. See Coi.Msiox, 8. MARINER'S CONTRACT. 1. Where the voyage in the Ship- ping Articles is described as one to North and South America : Held, that such description is too indefinite under the " Merchant Shipping Act, 18.")-!. Tlie MarutlwH—IIorst, 9. 2. Where the voyage in the Ship- ping 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, 1854." The Ellerdie — Viekerman, 3.5. 3. Where the voyage was described to be from Liverpool to Savannah, and any port or ports of the United States, of the West Indies and of British North America, the term of service not to exceed twelve months, it was Ihld, that the voyage intended was confined to the ports on the eastern shoi-e of the continent, and that the articles did not authorize a voyage to San Francisco on the north-west coast. The Ada (in note) 11. 4. 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 14!)th section of " The Merchant Shipping Act, 1854,-' which enacts that "no seaman who is engaged for a voyage or engagement to terminate in the United Kingdom is entitled to sue IN'DEX. ■u»y VCT. ;hc Ship- is one to i: Ilehl, ndefmitc ling Act, rst, 9. the Ship- xs Olio to be a good ; " liatlU'C M crcliant Ellerslie described savaiiiuih, [le United es and of temn of e months, u intended ts on the inent, and uthorizc a on the a (in note) eviation in ted in the Dned by a uebec, not ngagement id as there ct ; and a alleging a the 149th it Shipping 3 that "no 3r a voyage ate in the tied to sue in any Court abroad for wages" over-ruled. The Latona — Lewis, 203. QiKvre. — How far can an engage- nientof aseanianvoid froinnot stating tiie nature of the voyage as required by the " Merciiant Siiipping Act, 1854," be considered as operative under a subseciuent Act (" Merchant Siiipping Act, 1873"), which admits, instead, a statement of the maximum period of the voyage and the ports aiul places (if any), to whicli it is not to extend, iO. See Jurisdiction, 12, 15; Nova Scotia ; Special Contract. MARITIME LIEN. See Lien ; Limitation. MARSHAL. As to the appointment of Marshal on a vacancy occurring in the office (2G Vict. c. 24, s. 5, p. 254). During the temporary absence of the Marshal, the Judge may appoint some person to act for him, ib. As to appointment of deputy- marshals. See Judge, 3, 4, 12, 13 ; Fees, 2. MASTER OF SHir. 1. To have the same remedies for wages as seamen (17 & 18 Vict. c. 104, 8. 191), and also for his dis- bursements on account of the ship (24 Vict. c. 10, s. 10, p. 255). 2. Duties of, in case of collision, under the Dominion Act, 31 Vict, c. 1)8, s. 11, p. 321, and under " The Merchant Shipping Aot, 1873," s. IC, p. 328. 3. An omission of those duties without reasonable cause a mis- demeanour, {/j. 329. MATERIAL MEN. Vice- Admiralty Courts have juris- diction in the following cases : — Claims for necessaries supplied in the possession in which the Court is established, to any ship of which no owner or part owner is domiciled within the possession at the time of the necessaries being supplied : and Claims in respect of the building, cqui[)ping, or repairing within any British possession, of any sliij) of which no owner or part owner is domiciled within the possession at the time of the work being done (2G Vict. c. 24, s. 10, jx 25.^). MERCHANT SHIPPING ACT. See Collision, 29, 31 ; Maiuxer's Contract ; Wages. MICHIGAN, Opinion of the Supreme Court of Michigan, one of the United States of America, relating to the question whether or not the Western Lakes, in commercial character, are boilies of water like the ocean itself, or only such as those which lie entirely within the boundaries of a state of the United States, 329. MINISTERIAL POWERS. Sec Inteiu'retation of Terms, 4. D D 2 404 INDEX. MTSDKMEANOUR. See Master of Ship. MORTGAGE. Vice- Admiralty Courts have juris- diction in respect of any mortgage where the shi]) has been sold \)y a Decree of the Cuurt, and the proceeds are under its control (2G Vict. c. 24, s. 10, p. 255). NAVIGATION. The same rules of navigation, and the same precautions for avoiding collisions and other accidents as are now adopted in the United Kingdom and other countries are also adopted tln-oughout the Dominion of Canada (31 Vict, c, 58, p. 315.) NAVY. Vice-Admiralty Courts have juris- diction in all cases of breach of the regulations and instructions relating to Her Majesty's navy at sea (2G Vict. c. 24, s. 11, p. 255). NELSON, Chief Justice. Opinion of, sitting in the circuit Com-t of the United States, respec- ting compulscn-y pilotage, 231. NOVA SCOTIA. 1. Opinion of Sir V»'ILLIam Young, chief justice, sitting as Judge in the Vice- Admiralty Court of Nova Scotia at Halifax, relating to the question of jurisdiction over a contract for wages different from the ordinary mariner's coiit'raet. Tae C ifj/ "/ Pefcrxhimi, 343. The jurisdiction conferred on the High Court of Admiralty over a special contract for seamen's wages by "The Admiralty Coui-t Act, 1801," withheld from the Vice -Admiralty Courts, as it is not conferred by "Tiie Vice- Admiralty Courts Act, 1863," Ih., and see tliese Acts at pp, 247, 253. 2. Opinion of tlie same respecting compulsory pilotage, and as to the jurisdiction of the Court of Vice- Admiralty over a vessel injured by a collision in the harbour of Halifax, within the body of a county. The Wavelet, 35G, 357. 3. Opinion of the same that a Court of Vice- Admiralty has juris- diction under the Imperial Act of 1803 (2G Vict. c. 24, s. 10) in a case of damage done to a wharf by a ship. The Chase, 301. 4. Opinion of the same, that the ports of the Dominion of Canada are to be accounted " Home Torts," in relation to each other, and that a bottomry bond given on a Dominion vessel in a Dominion port cannot be enforced by the holder within the jurisdiction of the Admiralty. The Three Sisters, 370. 5. Also that "The Admiralty Court Act, 1801," s. 6, confers juris- diction upon the High Court of Admiralty of England over any claims for damage done to goods, or for breach of contract by the owner, master, or crew of any ship in relation thereto, without con- femn", it upon the Vice-Admiralty Courts ; an advantage in favour of INDEX. the English merchant withheld Troni the colonial, ih. 374. G. Also that many of the lliiles of Practice in use in the High Court of Admiralty might very advanta- geously be extended to the Vice- Admiralty Courts. 76. 3-19, 350. See also p. 374. 7. And that the fees in the Vice- Admiralty Courts miglit be largely reduced with signal advantage to the community and the profession, ib. 350. OATHS. See Registrar ; Perjury. OFFENCES. 1 All persons charged in any colony with ofibnces committed on the sea, may be dealt with in the same manner as if the offence had been committed on waters within the local jiu'isdiction of tlie Courts of the colony (12 & 13 Vict, c, DG, 8. 1. p. 298). 2. Persons convicted of such of- fences shall suffer tlic like punish- ments as on conviction of like offences in England, ib. s. 2, p. 209. 3. Provision for the trial of mur- der and manslaughter when the death only happens in the colony or upon the sea, ih. S. 3, p. 299. 4. If any person, being a British subject, charged with having com- mitted any crime or offence on board any British ship on the high seas, or in any foreign port or iiarb(jnr, or if any person not being a Bi'itisli sub- ject, charged with having committed any crime or offence on board any Britisli ship on the iiighseas is found witiiin the jurisdiction of any Court of justice in Her Majesty's dominions which would have had cognizance of sucli crime or offence if committed within the limits of its ordinary jurisdiction, such Court shall have jurisdiction to hear and try the case a.s if such crime or offence had been committed within such limits (1 8 & 1 9 Vict. c. 91,8. 21). Nothing contained in that section is to be construed to alter or interfere with the 12 & 13 Vict. c. 9G above- mentioned. As to offences under " The Foreign Enlistment Act, 1870" (33 & 34 Vict. c. 90, p. 28G.) OFFICE OF PILOT. Importance and responsibility of the office of pilot, and tlie necessity whicii exists that tiie utmost care and attention should be given by the authorities that make tiie appoint- ment, to see tiiat none are iippointed but tliose who p(jsscss tlie reipiisite (pialifications and character. The Lotus — Clarl; C)8. OFFICERS. See Lord Hioii Admirai, ; Govkr- NOR ; Vice-Admiral ; Judge ; Chfep Justice ; Registrar ; Marshal ; Office of Pilot. ONTARIO. See QuEBiio. 406 INDEX. ONUS PROBANDI. Tn case of collision is, in the first instance, on the party complaining. The Marrtnret— Clark, 19. Bnt see Collision, 31 ; Evidence, 1 ; Owners, 3. ORDERS IN COUNCIL. See Regulations ; Table op Fees, 1,2,3,4. OWNERS. 1. The owner of a ship is not responsible for damage donc^ by his ship, occasioned solely by default of a branch pilot employed by com- pulsion of law. The Lotus — Clark, 58. See cases of Tns Arabian, 72; The Alma, 72 ; and The Anglo- Saxon, 117. 2. To entitle the owner of a ship having by compulsion of law a pilot on board to the benefit of the ex- emption from liability for damage, the fjxult must be, exclusively, that of the pilot. The Courier — \Vi/att, 91. See case of The Secret, 133. 3. If a licensed pilot is on board a vessel, in order to exempt the owner from liability for damage oc- casioned by collision, the onus pro- ha/idi lies upon such owner to estab- lish that the collision was occasioned solely by the negligence of the pilot. 2'/ie t^icret — JJarisoii, 133. 4. The exemption from liability is not taken away from the owners of the damaging vessel, though the master have the power of seleution from amongst a number of pilots, and though in conscciuence of such selection the same ]iilot has in fact piloted tho ship for many years. The Hibernian— Smith, 148. 5. A pereon 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 A>i(jlo-Saxoii — Wcdcjarth, 1 17. See Pilot, 2, 3, 5 ; Possession, 1,2. PERJURY. Any person who shall wilfully swear falsely in any proceeding be- fore the Registrar, or other person authorised to administer oaths in any Vice-Admiralty Court, shall be deemed guilty of jjcrjury, and shall be liable to all the [lenalties attaching to corrupt perjury (2G Vict. c. 24, s. 20, pp. 25G, 2i57). PILOT. 1. The mode, the time and the place of bringing the vessel to an anchor is within tho peculiar pro- vince of the pilot who is in charge. The Lotus — Clark; 58. 2. Where a pilot is on board the ship he must be actually on deck and in charge to relieve the owners of their responsibility. — The Courier — Wijatt, 91. Sec case of The Gordon, 198. 3. The pilot in charge of a ship is solely responsible for getting the ship under weigh in improper cir- cumstinices. The. Ai';/l-f}j! — Wtdjarth, 117. INDEX. 407 4. TI\o duty of the pilot is to attoiul to the navigation of the ship, and the niastex- and crew to iiocp a good look-out. The Secret— Daitson, 133. 5. TJie owner of a ship not liable in damages for a collision occasioned by the fault of a pilot, where there is a penalty attached to a refusal to take such pilot. The Hibernian — Smith, 148. See Compulsory Pilotage, 1, 2, 3, 4, 5, G, 7 ; CoNFrjcTrNO Dkoisions ; Office op Pilot ; Owners, 1, 2, 3, 4. PILOTAGE. Vice- Admiralty Couris have juris- diction in rosjioct of piK)tage (2G Vict. 0. 24, s. 10, J). 25')). See CoMPULSouY Pilotage. PIRATES AND PIRATICAL VESSELS. Of the jurisdiction of the Vice- Admiralty Courts as to jiirates or piratical vessels (26 Vict. c. 21, s. 12, pp. 2,)5, 25 G). As to authority of Admiralty Courts to entertain a suit for the restitution of goods piratically taken on the high seas. See The IIeuculf.s, 2, Dodson, 360. POSSESSION. 1. Jurisdiction of the Vice-Ad- miralty Courts in cases of possession to reinstate owners of ships who have been wrongfully displaced from ihr'w possession. The JIaidee — Keinpthorn, 2-"). 2. Jurisdiction of the Vice-Ad- miralty Courts extended to claims between owners of any ship registered in the jwssession in which the Court is established touching the ownership, possession, employment or earnings of such ship (2G Vict. c. 24, s. 10, p. 2.5o). (The nature of the jurisdiction in cases of possession antecedent to the passing of this Act — which enlarged it — will be seen from tiie judgments of Lord Stowe/l upon that subject, collected in " Pritchard's Digest.'') PRIVY COUNCIL See Judicial Committee of Puivv Council. PRESUMPTION. 1. It is tiic duty of the person in charge of each ship to render to tiio other ship such assistance as may bo practicable and necessary ; and in case he fail so to do, and no rcason- aldc excuse for such failure be shown, the collision will be deemed to have been caused by his wrongful act, neglect or default (25 & 2G Vict, c. G3, s. 33). The Liberty— Ouellet, 102. 2. When the regulations for pre- venting collisions under "The Mer- chant Shipping Acts, 1854, to 1873," have been infringed, the ship by which such regulation has been in- fringed shall be deemed to be in fault, ih. {" Merchant Shi[)ping A^t, 1873," p. 320.) 408 INDEX. PROCTOllS. 1. As to liow far tlie Court will iTitorfere on a complaint made by the Kegistrar against proctors for non- payment of his fees, which they have received from their clients and have not paid over to him. Exparte Di'olet, 1. 2. A premature action in some cases exposes the proctoi', if ac(piaintcd with the facts of the case, to the animadversion of the Court for the impropriety of creating unnecessary litigation. The British Lion — Jfaiiii, 114. TROOF. Sec Evidence ; Onus Probandi ; Vis Major, •?,. QUEBEC. Geographical Limits of Ancient Government of, .381. Division thereof into Up])cr and Lower Canada. Tlieir re-utiion into tlie rrovince of Canada and tiie division of the latter into the cx'sting provinces of Ontario and Quebec, 381, 2. RAFTS. Rules as to the navigating and anchoring of rafts in any navigable river in Canada {Duviiiiion Art, \Vl Vict. c. .58, s. 2, p. 319). REGISTRAR. L The Registrar of any Vice- Admiralty Court shall have power to administer oaths in relation to any matter depending in the Com't (J(J Vict. c. 1:1, s. 20, p. 250). 2, As to the apt)ointment of Re- gistrar and Deputy Registrar, or persons to act during their tem- porary absonce. See Judge, 3, 4, 12, 13 ; Fees, 2. REGULATIONS. 1. For preventing C(illisions at sea, issued in pursuance of " The Mer- chant Shipping Act Amendment Act, 18G2," and of an Order in Council, dated !)th January, 18G3, 301. 2. The same rules of navigation, and the same precautions for avoid- ing collisions and other accidents as are now adopted in tiie United Kingdom and other countries, were ado])ted in the Province of Canada by 27 & 28 Vict. c. 13 (30th June, 18G1), and extended throughout the Dominion of Canada by 31 Vict, c. .'kS (•22nd May, 18G8), p. 315. 3. And adopted in the United States of America, by an Act passed in the first session of the 38th Con- gress, chap. G9 (29th April, 1861), p. 308. 4. Regulations made to apply to ships navigating the inland waters of North Au;erica, and to ships of the United States navigating such waters when beyond the limits of British jurisdiction (Order in Council, dated 30th November, 18G4), p. 312. 5. Order in (Council respecthig the application of Articles 11 and 13 of the Regulations, as to two sliips meeting each other " end on," or nearlv " end on," dated 30tii July, 1808, p. 325. INDEX. 409 REVENUE CASES. 1. Vice- Admiralty Courts in the British possessions have concurrent jurisdiction with the Courts of Re- cord, in the case of forfeitures and penalties incurred by a breach of any Act of the Imperial Parliament relating to the trade and revenues of the British possessions abroad (IG & 17 Vict. c. 107, s. 183). 2. So also in case of penalties and forfeitures, if-urred under any Act of tiie Dominion Parliament, re- lating to the customs, or trade or navigation, Statute of Canada (31 Vict. 0. 6, 8. 99). RIVERS AND NAVIGABLE WATERS OF CANADA. See Rules concerning Lights AND Fog Signals ; Stebrino and Sailing Rules, 301, et seq. 225. RULES OF PRACTICE. 1. Her Majesty vary, by Order in Council, from time to tune, establish rules touching the practice to be observed in the Vice-Admiralty Courts, and may repeal and alter the existing and all future rules, and establish new rules in addition thereto, or in lieu thereof (2G Vict. c. 24, s. U, p. 2oG). 2. A cc ly of the rules which may, at aay time, bo established, to be laid before the House of Com- mons within three months from the establishment thereof, ib. s. 15, 3. To be entered in the records of the CoulIs, ss. 1G and 17, ib.. 4. Upon the rules, and also upon the 8upi)lementary rules, made in pursuance of the statute 2 Will. IV. c. 51, and established by Her Ma- jesty's Orders in Council, and now in force in the Courts of Vice- Admiralty, see observations of Sir William Young, Chief Justice of Nova Scotia, sitting as Judge of the Admiralty at Halifax, in tiie cases of The City of Peteusduho, 313, 349, and of The Three Sisters, 374. See Nova Scotia, 6. RULE OF THE SEA. 1. The law imposes on a vessel having the wind free, the obligation of taking proper measures to get out of the way of a vessel close hauled. 2'he Anne Johanne — Larsen, 43. See case of The Courier, 91. 2. When two vessels are ap- proaching each other on opposite tacks, each being close hauled, the vessel on tiie starboard tack should keep on her course, and the vessel on the port tack should keep off. The Liherty—Ouellet, 102. The only exception to the rule is, that if the vessel on the port tack is so much to windward, that in case both persist, the vessel on the star- board tack will strike her to leeward and abaft the beam, then the vessel on the starboard taok must give Avay, as she can do it more easily than the other. — Danas Seamcuts Friend, p. 59, of London Edition of 18G4. The same rnloB of navifatinn. .njid the same precautions for avoidiii" 410 INDKX. collisions and other accidents, as are adopted in the United Kiii<,'dom and other countries, are also adopted in rchpect of vessels navigating Cana- dian waters, by 31 Vict. c. 5H, p. 316. SALVAGE. 1. The ralmi/m, snnk in the river St. Lawrence, was raised and saved by the very ingenious, novel, and excellent machinery on board of The Dirirjo, and the great skill and experience of the master and crew, most of whom were picked men, and excellent mechanics. The Court directed that £1000 sterling was a reasonable salvage. The ralmyra — Lovitt, 4. 2. Upon a valuation of £0700, the sum of £400, awarded as salvage to a schooner, for towing a vessel disabled in her masts and rigging in the lower part of the St. Lawrence, to a place of safety, the mere qnaa- tum of service not being the criterion for a salvage remuneration. The Jioi/al M'uhlij — Davison, 82. 3. It seems to be the general sense of the maritime world tiiat the rate of saWage in cases of dere- lict should not, in ordinary cases, range below one-third, nor above a moiety of the property. The Marie Victoria— Ellis, 109. 4. In a case of very meritorious service rendered by five seafaring persons to a vessel which was dis- covered by them in the river St. Lawreuco, deserted by the crew, the Court awarded one moiety of the property saved, and also their costs and expenses, ih. 5. Wlierc the master and crew of a vessel were taken off by salvors in canoes, the former abandoning her under the apprehension that she would bo a total wreck, but was afterwards saved by the meritorious exertions of the latter, a moiety of net value of ship and cargo was allowed as salvage. The Pride of Euijlaml — Bean, 189. G. While a vessel floating amidst the ice of tlie St. Lawrence, without any person on board, and without a rudder, her master and crew having left her, but intending to return, four persons went out to her in canoes, and by aid of her sails, grounded her in a place of safety. £200 sterling allowed as salvage. TiM Pomo-n! — Bruce, 182. 7. The Vice- Admiralty Courts have jurisdiction in res])ect of sal- vage of any ship, or of life, or goods therefrom (20 Vict. c. 24, s. 10), p. 255. 8. Derelict being sine spe reciipe- ratnli, is distinguislied from salvage in tlic amount awarded. The Marie Victoria— Ellis, 109. 9. Rules as to salvage prevailing in the High Court of Admiralty, obtain also in the Courts of Vice- Admiralty, ib. 10. Where the master of a steamer exacted an exorbitant con- tract for salvage service from the master of a sailing vessel which, with the mate nlmio on V)oardi wns in imminent danger of shipwrecii, INDEX. Ill the Hamo was act asido, ami a (/nan- turn meruit uUuwed. The A/iierica — Harries, 214. SEAME>T. 1. Compensation to, allowed for umieccssary detention on cliarg<^ '" desertion (" Merchant Shipping Act, 1873." s. 9) p. 328. 2. Whenever it is made to appear to Her Majesty tiiat the goveru- vti'int of any foreign state is desirous that any of the provisions of tlio Merchant Shipping Acts, 1851 to 1873, relating to tiie engagement and discharge o seamen, shall ajiply to the ships of such state, Her Majesty may, by Order in Council, declare that such of the said pro- visions as are in sucii order .si)ecified, shall api)ly to the ships of such state as in the case of British ships, U.S. 11. SEAMEN'S WAGE.S. Sec Dkhkution' ; Matuneu'.s Con- TfiAcT; Waoks. SEIZURES. See Courts, Vice-Ad juraltv, t, 7. SHIP. See Interpretation of Terms. SHIPWRECKS. See Acts op Tarliament, 9. SPECIAL CONTRACT. Sec Jurisdiction, 11, 12, 15; Nova Scotia ; Towage, 2 ; Wages, STATUTES (IMPERIAL). 3 ife 4 Vict. c. G"). 3 it 4 Vict. c. 6G. C A 7 Vict. c. S5. 12 Vict. c. 44. 12 cfe 13 Vict. c. 9G. 10 & 17 Vict. c. 107. IG & 17 Vict. c. 78. 24 Vict. c. 10. 25 & 2G Vict. c. 63, s. 29. 2(i Vict. c. 24. 30 .fe 31 Vict. c. 4.5. 30 Ji 31 Vict. c. 114. 33 & 34 Vict. c. 90. 37 Vict. c. 85. .STATUTES (CANADIAN). 27 & 28 Vict. 0. 14. 31 Vict. c. 58. STEAM TUG. See Tuo and Tow. STEAM VESSELS, 1. The Martha Supuia. 2. The Arabian, 3. The James McKenzie, 4. The Anglo Saxon. 5. The Secret. G. The Hibernian. 7. The Geumant. 8. The Tuame.s. STEERING AND SAILING RULES. See Regulations. TABLE OF FEES. 1. Her JMajesty may, by Order ia Coniif.il, frntti time to time, establish Tables of Fees to be taken by the 412 INDKX. ofrieers ami iiraclitioners of the Admiralty CouitH, for all acts to be done therein, ami may rejjoal ami alter the existing and all futnro ta!)lcs of fees, and establish new tables of fees in addition tiieroto, or in lieu thereof ('20 Vict. c. 24, 8. ll). p. 25G. 2. A copy of the tables of fees to be laid before tlie House of Com- mons within three months from the establishment thereof, ih. s. 1.3. 3. To bo entered in records of the Court, ib. ss. 10 and 17. 4. The fees established for any Vico-Admiralty Court shall, after the date fixed for them to come into operation, be the only fees which shall bo taken by the oiHcers and practitioners of the Court, ib. s. 18. 5. Any person who shall feel himself aggrieved by the charges of any of the practitioners, or by the taxation thereof by the officers of the Court, may apply to the High Court of Admiralty of England to have the charges taxed, or the taxation thereof revised, ib. s. 19. See Fkks, Nova Scotia, 7 ; Tuoc- TOUS, 1, 2. TENDER. Where a tender is refused simply on account of more being alleged to be due, it is not necessary that the amount tendered should be tendered in coin. The British Lion — Mann, lU. TITT.E. Vice- Admiralty Courts have juris- diction touching the ownership of any ship registered in the possession in which the Court is established (2G Vict. c. 2-i, 8. 10), p. 2.')r). Before the passing of this Act the Vice- Admiralty Courts had no jin'is- diction to entertain a suit for pos- session, for the purpose of trying the title to a ship. They had no more than the ordinary jurisdiction pos- sessed by the High C )urt of Ad- miralty antecedent to tiio ptissing of 3 it 4 Vict. c. O-'j, which enlarged it. See the Judgment of the Lords of the Judicial Connnitteo of the Privy Council in the case of The A UKtralia, on appeal from tno Vico-Admiralty Court at Hong-Kong, 19th July, 1859, 13 Moore's T. C. C. 132. TOWAGE. 1. Jurisdiction as to claims in respect of towage extended by the Vice- Admiralty Court Act of 18G3 (2G Vict. c. 24, s. 10)), p. 235. 2. Under this Act the Court can enforce the payment of reasonable to . go, but has no authority to en- force an agreement to em2)loy a par- ticular tug either for a definite or an indefinite quantity of work. The Ihitisli Lion — Mann, 114. TRADE AND NAVIGATION LAWS. As to seizures for breach of the Trade and Navigation Laws : — Soe CusTOMH ; Rkvf.nijr Casks ■ Vice-Admipaltt Courts. 4, 5, G. owiicrKhip of the llOHHCHHion IS CHtablishod p. 2r)r>. f this Act tho hiid no jiiris- Biiit for in)a- 3 of tryincj the had no more •isdictiou poa- V )urt of Ad- tiiO jjiuising of ;Ii enlarged it. f tlio Lords of e of the Privy The Austi-dlid, ''iue-Adniiralty ;, 19th July, I. C. 132. to claims in tended by tho Act of 1803 I, p. -T.S. tho Court can of reasonable iithority to en- cniploy a par- f a definite or of work. The 114. LVIGATION breach of the 1 Laws; — VRNiiR Casks ; BTS, 4, 5, (j. iNnnx. 113 TRINITY IIOrSR. Soo Collision. 1 ; Vis Majou, 2. TUG AND TOW. 1. Steam tugs employed in an 'Ordinary service of towing merchant vessels are bound to bo subservient to tlio orders of tho pilot on board tho vessel in tow. T/ie Anylo-Saxoii — Wesfi/itrth \2-2, note (a). Ivlaatcr of the tug must implicitly obey and carry out tho orders of such pilot, excepting in tho case of gross mismanagement on the part of tlie pilot, ib. UNITED STATES OF AMERICA. Regulations for preventing col- lisions apply to ships belonging to the United States of America when navigating the inland waters of North America, whether within British Jurisdiction or not. Order in Council, dated 30th Nov. 18G4, p. 313. VICE-ADMIP AL. See GovBHNOK. VICE-ADMIRALTY COURTS. 1. Her Majesty, by Commission under the Great Seal, may empower the Admiralty to establish one or more Vice-Admiralty Courts in any British possession, notwithstanding that such possession may have pre- viously acquired independent legis- lative powers {30 «fe 31 Vict. c. 45, B. 16), p. 261. 2. The jurisdiction and authority of all tho existing Vice-Admiralty Courts are declareil to bo confirmed to all intents an1, 2'JG. See JuiusDicTioN, 10. VIS MAJOR. 1. Where, by moving of the ice- bridge in tiio harbour of Quebec, a Ktcanicr vrnn brougiit under the bow of a sailing vessel, iier walking beam broken and her machinery injured : I/i/(f, tiiat the damage was not owing to the contravention of a by-law of the Trinity House, but was caused entirely by a tn^t major, and was the result of inevitable accident. The Harold Ifaarjagar — lleUleaen, 208. 2. The Court wilU not ex ojficio notice a by-law of the Trinity House at Quebec, but will require legal evidence of its contents and publica- tion, ib. VOYAGE. "The Merchant Shipping Act, 1873," permits of any agreement with a seaman luuler the section 149 of " The Merchant Shipping Act, 1851," stating the maximum period of the voyage or engagement, and the places or parts of the world (if any) to which the voyage is not to extend instead of stating the nature and duration of the intendi^'l voyage or engagement, as_ by that section re- quired, 328. WAGES. 1. Under the l!)Oth section of "The Merchant Shipping Act, 1851," no seaman engaged for a voyage or engagement to terminate in the Lnited Kinj^'dom, can sue in any Court abroad for wages, unless he is discharged with such sanction as is re(iuired by the Act. The ILaidee— — Kempthorii, '2~t. 2. Vice-Admiralty Courts have no jurisdiction over a contract for wages ditl'orent from the ordinary mariner's contract. The Citi/ of rdi'rsbtmj, 313. See Jurisdiction, 12, \'). WAR. See FoRKiON Enmstmknt Act ; FOHKKITUIIKS ; JuniSDICTION, 10, 15 ; Vice-Admiralty Couht-s, 3, 7. WITNESS. The evidence of interested per- sons admissible, leaving the question of credibility to the discretion of the tribunal before which the evidence is given. The Courier — Wyatt, 91. WRITS OF ASSISTANCE. How olitaintd, and the powers of those acting under them (31 Vict. c. G, s. 92). Dominion Parliament. YOUNG, The Hon. Sir William. (^Chief Justice.) Sec Nova Scotia. DIlADllI IIV, AONIW, U lO., riUMKBb, WlIUKKllIAHS, h section (if i« Act, 1851," r n viiyago or inato in tiio Huo in any j, nnlcHH ho in sanction oh ia The Haidee— 'ourts havo no met for wages iiiiry niarinor's ■}/ J'ekrsbKfij, 2, 15. [8TMKNT Act ; DICTIO.V, 10, Courts, 3, 7. S. nterestod |)or- g the qncstion sci'ction of tiio the evidence is ■Wyatt, 91. [STANCE. the powers of lem (31 Vict. n Parliament, Sir William. ICE.)