IMAGE EVALUATION TEST TARGET (MT-S) h J/. V. &; ^ 1.0 Iri^ IIM I.I 1.25 III 1- ill 2.0 Hf ii4 "J^ 1.8 iA ill 1.6 V] <^ /i / u/% /A Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 fv C/u CIHM Microfiche Series (l\/lonographs) ICIVIH Collection de microfiches (monographies) Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques r^v r\f\ Technical and Bibliographic Notes / Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. □ Coloured covers/ Couverture de couleur Covers damaged/ Couverture endommagee Covers restored and/or laminated/ Couverture restauree et/ou pelliculee □ Cover title Le titre de missing/ couverture manque □ Coloured maps/ C»i n D tes g^ographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relie avec d'autres documents /\ Tight binding may cause shadows or distortion along interior margin/ La reliure serree peut causer de I'ombre ou de la distorsion le long de la marge interieure n n Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouties lors d'une restauration apparaissent dans le texte, mais, lorsque cela etait possible, ces pages n'ont pas ete filmees. Additional comments;/ Commentaires supplementaires; L'ln .titut a microfilm^ le meilleur exemplaire qu'il lui a ete possible de se procurer. Les details de cet exemplaire qui sont peut-£tre uniques du point de vue bibliographique, qui peuvent n.odifier une image reproduite. ou qui peuvent exiger une modification dans la methode normale de f ilmage sont indiques ci-dessous. □ Coloured pages/ Pages de couleur □ Pages damaged/ Pages endommagees □ Pages restored and/or laminated/ Pages restaurees et/ou pelliculies r~~| Pages discoloured, stained or foxed/ UL. I Pages decolorees, tachetees ou piquees □ Pages detached/ Pages detachees Showthrough/ Transparence □ Quality of print varies/ Qualite inegale de Time impression □ Continuous pagination/ Pagination continue Includes index(es)/ Comprend un (des) index Title on header taken from:/ Le titre de I'entete provient: □ Title page of issue/ Page de titre de la li vraison I I Caption of issue/ Titre de depart de la livraison I I Gen thead/ nerique (periodiques) de la livraison This Item is filmed at the reduction ratio checked below/ Ce document est filme ai- taux de reduction indique ci-dessous. 10X 14X 18X 12X 16X 20X 22X 28 X 30X J 24X 28X J 22X The copy filmed here has been reproduced thanks to the generosity of: National Library of Canada The images appearing here are the best quality possfb'e considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol —^ (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: L'exemplaire filmd fut reproduit grSce d la g6n6rosit6 de: Bibliothdque nationale du Canada Les images suivantes ont 6x6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettetd de l'exemplaire film6, et en conformity avec les conditions du contrat de filmage. Les exemplaires originaux dont la couverture en papier est imprlm6e sont filmis en commen^ant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont film6s en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole — »- signifie "A SUIVRE", le symbole V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre filmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est film6 d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 4 S 6 A] Judge /; ; < /' Z"^*. ^ a '/>' THE [S- APR 13 1953 > Admiralty Decisions' "i-trau OF SIR WILLIAM YOUNG, Kt., LL.B. i22BV< Jl^DGE OF THE CoUHT OF V,CE-AdM,RALTV FOK THE PROVINCE OF XOV. Scotia, and late Chief Justice of the Supreme Court. 865— 1880. EDITED 1)Y JAMES M. OXLEY, LL.B., B.A, Barrister-at-Law, EdUor of " The Nova ScoUa Decisions." TORONTO: CARSWELL & CO., LAW I300K PUBLISHERS, 1882. T E T TABLE OF CASES. A The Abby Alice j j^ A^'°" ^'^y^'.'.'.'.'.'.'.'. T36 A. H. Wanson ^ A.J.Franklin ^ Alexander Williams 217 Alhambra , T''eAnn ' ".".".'.V^ ' " '^ "! !! 104 Architect ^^^ ^''ant''^ !.!!!!!!!!!!!!;!;!! 17,, August Andre .,^^ Aura 54 B The Bella Mudge 222 C The Cambridge , Canterbury ^ 57 Charles Forbes , Chase 113 City of Petersburg j Clementine o^- E The Edith Wier Eleven Casks of Oil ^^-../^ .../..... .. 128 The Emma „„ 282 F The Flora 4« VI TARIiE OF CASKS, G The Genoa Gladiator ^75 196 H The Heindall Herman '^"^ Herman Ludwig ' " 1: 1 1 I The Ida Barton 240 J The James Fraser Jean Anderson " ' '■'''' J. H. NicUerson ~''' John ][ 'Jf* 1 29 M The Margaret Marino '7' Martha 5 ' Minnie -■t7 05 P The Peeress 265 Q The Queen D. Flint The Queen t;. Gold Watches... '''" I7Q R The Rcgina Richmond ".'."".". '"7 R. Robinson .,,..'. '^ ' Rowena '^^ Royal Arch " ^55 Runcherg ^^^ 42 TABLE OK CASKS. vu s Tlio Sarah &. li. Hume Scotswood Seaway ~ Silver Bell ^ ^ Stella Marie '^^ Sy Iphide S . V. Coonan ".".'.'..". ' ^ '' :o9 T The Three Sisters Tickler y.'y.y.y^y.'y.y.y.y.'.'.'.'.'.'.'.'.'.'.['''' in Two Bales of Cotton W The Wampatuck Wavelet '^^ We'reHere ^t W.E.Wier '.'.'.'.'.'.'.'.'.'.'..[ \^ W. G, Putnam ''*" 271 ERRATA. Fage 105 -In fifth linu of hoail-note, read "f^ooo" for '■ S^oo.oo. ' Page 195— In bottom line, for " Lennox. Q.C.r read " Lcnoh-r Page 216— In second last line, insert "and" between Tliompsun and Attorniy-Gcnirnl. Page 231— In eighteenth line from top, for " 1S70," read " 1S79." IN THE VICE-ADMIRALTY COURT AT HALIIWX. The Kon.m« »■ m two „f .. p... o„„ „ ... o..rnt';''c fni;'::;':;,." ™;:'"" '^" ■• ■"• •» bnf:'i.oi.T':',*':t"" "' •"'■''''"''•'■■«»"■'"-»-"■■».«.. 2. That previous to the Admiralty Coint Act of rSf,r ■, \r High co,tto,Ac,,„it,,,, ha, „oi,,;i,,,ic,i::;,::*;':::-7- '»■•'■= .h.'-,Jo';';i™; tX'.'lT."S r;:;"* -"h"""'"- '°°"-' ■»■ -^ * Reprinted from i Oldright p S14 V-A.n. ' ' ^ :l U 2 VICE-ADMIUAf/lY rOl'RT. 4. That, although the commission formerly issued to the Vice-Aihiiiralty Judge empowered him " to hear and determine all causes according to the civil and maritime laws and customs of our I ; igh fourt of Admiralty of England, yet this power, like some others assumed to l)o Leatov.tcl by the commissiijn, is frequently inoperative. And th;it, tlierefore, this Court hns no jurisdiction in cases like the present. Held, also, that, although the respondents were bound to have objected to the jurisdiction in limine, by appenriiin under protest, still, that, where the Court is of opinion that it has no jurisdiction, it will U' 't only entertain *he objection at the hearing, but is bound itself to raise it. These were actions i'or neaineu'ri wageH, promotetl by thrt'f seamen against thih vessel. The causes were tried together twice — once before the late Judge Stncdrt, who ordered a re-argunieut, and again before the present dudgo of this Court— by l^iithtiiand, Q.C., and Le Xoir, for the promovents, and by lUtchii' Q.C., and J. N. liUchie. for the vessel. The pleadings and the facts arc fully set out in the judg- ment. YouNo, J., delivered judgment as follows: The Clhi of I'cterahimi is a Idockade runner, plying be- tween Bermuda and Wilmingtt)n, the voyagt' in question in these suits having terminated tin consequence of the fever at the former of these places in the month of September last) at this port. Two of the plaintili's, Nichol and Bailey, shipped, the one as chief cook, and the other as Hecond steward, at Bermuda, for the round voyage, and were dis- charged by Capt. Fuller, the then master, for alleged incompetence, at Wilmii. ^fton ; but were brought here in the ship, in obedience to the laws of the Confederate States. The third libellant, John Valley, was shipped at Wilming- ton, as chief cook, in place of Nichol. The ship left Ber- muda on the 8th of August, and arrived at AVilmington on the 13th — was detained till the 2Uth at quarantine — left Wilmington again on the 5th September, and arrived here on the IBtii. Capt. Fuller returned in her, and refused to pay the balances claimed by the three plaintiffs. He appears to have left this place for England along with Mr. cases like tlio CITY OF I'KTEHSBIRO. « Ca..ipbell. one of tl.o owners, in tho Rteamor of 29th Se,. left Leforo tl.oy weiv l.rowjrl.t-so that tho two ..rincinn Ih. hbolH exh.b:to.l hy the plaintiff, are in tho or.linarv s a.cnnont at the sums reooivo.l on account an,] the balances oh^une. to be. due: thone bahineos, bowovo., ap^n^Zu^ aft.biv.ts. In point of fact Xiobol ohtinis .M^o Lie 4o and alley ..120 with the difference ..f o.vchan . 'eos s' 1 e^-esj.,.,ve allegations in the three suits a^ nearh " ^ane. Ihehirn,. alleged in John Xiehols" libel. No.'-iltJ v.- tor hazardous servu-es. an,l wa,.. therefor said to live -n pronused n, one sun. of UHO, payable, part on 1 -n . '-•'-du. and the remainder on arriv'al of he si p at h' ernun..tun. of the voyage there or at ilalifax:!^^ K.sponsn-e alb.«at>on pleads, in the lirst article that 1 e ;va«es were payable in three sums each of sixt /, far - li. hrst on leavin. Ifannlton, the seeon.l on the te m na- ;r 1 " ";•?"'■ ^^''^^-^-^^^ -• HaHfav. and to "a an additional bounty. " nrovidwl tl... ,., . . 01 tile piamtili and bis discharge therefor Tl.l +i • 'i »l^Re, that the ma,t.,. «, „ot ..^.^'^'Z. f e .tin .clle I to l„„i» 1„„, t„ Halifax «, a „as«„ge,-. tad the four, . claim., the. boneflt of ,!,„ ISMhsoction „r ,l,e «„ •11 -^"tit aie no otliei i)lea(linrrLi ;,, Ml.«- oa,e, and l,v agre<„,e„t tl.o evidence tat" ta , he three »„.ts ,v„« ,o be u.ed i„ all or „.„• o. them a „"„ The hrst object ot enquiry is the natm-c of the contract. VICE-ADMIRALTY COURT. This is common to all the tlireo cases, the plaintiffs' counstT contemling that, with some variation in the mode of pay- ment, it is the ordinary engagement for seamen's wages, to be considered and dealt with as such ; and the defendants insisting that it is a special contract, and, as such, not within the jin'isdiction of this Court. On this very materia! point, the pleadings, as we have seen, and the evidence are conthcting. There is some testimony as to the usage of the trade ; several companies, as we know, being engaged in the hazardous enterprise of blockade running, but iJunbar savs that every company has its own prices and mode of ])av- ment; and Wade testifies that the wages in the 0/^/ l)n. miniun and t'il/j of rctcrnbiini which were owned by the same company, were different from those in other ships. Nichol says that his wages were to be $18U in all, payable in gold, of which he received $(50 in advance, "and the balance was to be paid on arrival if they made tlie clt-ar trip." He denies that it was optional with the captain to deprive him of his wages; " such a thing," he says, '• was not mentioned when I Jiired. 1 should not have gone."' liailey says, in reference to this case, differing somewhat from Nichol, that, at the hiring, "three sixties were men- tioned — one sixty when the pilot left, the remainder on the termination of the voyage. No condition," he adds, "was mentioned as to stopping any part of our wages or anything else." " The captain said he would give Nichol tliree sixties — those were the words he used — he said nothing about cotton money." And again, he says, " nothing wa» said about bounty or cotton money." As to his own hiring, Bailey says, "the captain agreed to give me $120 for the voyage, payable forty advance when the pilot left us (which be admits having received), and eighty on termination of voyage." Nichol, confiriuing him, again says, " Nothing was said about bounty or cotton bounty — nothing more was said between us and the captain." No ship's articles were signed, on account, it is said, of the nature of the trade, and Fuller and Webb being absent, there is no other evidence of wlutt actually passed at the hiring of these men. It is obvious, however, that something 'h' couuacT le of pay- wages, to lefeudiintH Hucli, not y luatcria! idence are age of the gad in the mbiiv Hiiy.i le of jiay- e Old 1).,. ed by the ^her sIiipH. .1, payal)le " aiul tlie tlie cli-nr japtaiii to ays, '• was ve gone.'' Bomewhat vere lueu- der on the Jds, " was L' anything 3hol throe d nothing thing was wn hiring, 20 for the us (wliich ination of " Nothing : more was is said, of ng absent, 3ed at the ioniething CITY OF I'KTKUSTiriKi. K ij else either did pass or was understootlier of the men eitlier of the Old lUninion or the Cit,, of I'rtrnhmj. Xichol liimself says, -that the custom of wages was well understoo.l among the men,"-and what tnat custom was is abundantly proved by the witnesses for the defence. Mr. Hull, formerly chief, now second, officer oMhe slnp, says. "The rate in ships of the class of the ( uiK^r FeM-slnuv is $rtO for the chief cook, when we leave ,)ort tor the passage from Hamilton to Wilmington. If the man keeps on, when he comes back to anv British port $60 raore-he also gets cotton money at the' owner's option- some men get it, and others do not." " By cotton money " he says, " I mean a present ' i the owners at their option It the men give satisfaction." •' What the owners pay on eavingLermuda is an advance; what they agree to pay eaung ^^ ilmmgton is a bonus ; cotton money is a present." Ut his own pay, he says, " Capt. Fuller hired me. My wages, as second mate, were $75 for the passage in-if 1 •cajne out in the ship, m> more-and if I gave satisfaction ^,0 more as cotton money. I gave satisfaction, and got it. Alex. Cameron, supercargo of the ship, and a partner in he adventure, says: "The men shipped at Bermuda and were paid in advance there as by taritf ; after running the blockade, and reaching a neutral port (that is. outside the (oniederacy), with a cargo, they are paid bounty and cotton money; the cotton bounty is optional with the cap- tains-provided the conduct of these men deserves this cot- ton bounty, they get it, otherwise not. " Copies of the taritt." he adds, " were supplied to the chief otHcer and enguieer. ' Capt Page, the master of the Old I>omi,no„, also says, that the cotton mmiey was payable to the men. provided they gave satisfaction ; that the bounty system is perfectly understood by the seamen, as Avell as bv the partv invm-nJ when they engage. Thus. Purcell, chief steward of The ol'l n.nnnnon, produced a copy of the tariff common to both Jis. and ' • ' ■ The ana wnicli he read to the i crew had one copy forward, audit nt n of his department. was read byLowrick. 6 VICE-ADMIUALTY COURT. one of the witnesses for these plaintiffs, but not examined upon tliis point. Purcell says, that Mr. Campbell, one of the recognized owners, called him aft, and read the tariff to him, and asked him if he was satisfied. He said he was ;. and that was the contract the witness entered into. The tariff, from which the copy marked A was made, dis- tinguishes the monthly pay or advance from the two. bounties payable on return, and at the foot says, " Cotton money will only be paid to those whose conduct has satisfied the captain, chief engineer, and mate." Now, it must be conceded, I think, to the plaintiffs, that the exact nature of this contract has not been unmistakably and clearly shown on the defence. The option of paying the cotton money depends, according to one witness, on the satisfaction of the owners— according to anotlier, on that of the master— and according to the tariff, on the combined satisfaction of the master, engineer, and mate. Hull also says, "that it was ojitional with the captain to have dis- charged all the crew at Wilmington, and in tliat case they would have forfeited the rest of their wages." J3ut while in this absence of ship's articles (a want which may bs very injurious in such suits to the owners, but is never allowed in tliis Court to operate against the seamen), a cer- tain degi-ee of seeurity rests upon this contract, it is impos- sible to view it, upon the whole evidence, as an ordinary contract for nuiriuers' wages. It sprang, as I have already said, out of an exceptional and hazardous trade, new in all its circumstances and relations, which has not been attacked in this case as illegal, but which differs widely from the usual conditions, and can hardly be governed by the general rules entitling the seaman to his wages on per- formance of his contract of service.— (Al)bott on Shippiu", 6r>8.'; In the case of the Itihi/ Grove, 2 W. Rob., 61, Dr. Lii>ih- iiKjton observes "that unfortunately what is or is not a special contract, no one Uas attempted to detine. None of the decided cases have defaied specilicaily what is a special contract, and upon this point," he says, " I am left entirely to my own judgment." J3ut none of the decided cases CITY OF PETERSBURG. resemble this. I shall say nothing of the old autlioritios in Prohibition cited in Abbott, and the case of the Si/dnn/ Cove, 2 Dodson, 12. Of those in the Admiralty— the cases above mentioned of the Si/Jneij Cove and the Rihy Gmvr, both of them involving partnership transactions ; the Z.sYf- bella, 2 Ch. Rob. 241, where there was a claim for tlie value of a slave in addition to the wages ; the Mono, 1 W. Rob., 141, where the promo vent was to receive a gross sum for proceeding from St. Helena to England and his expenses back ; these and other cases were not more distinguishable from the ordinary mariner's contract tlian the present. I think, must be held to be. In my view it cannot bo con- sidered otherwise than as a special contract, separable', it may be, into parts, as was done in the case of the Trcmnai'Ii 3 W. Eol)., 109, 144 ; but, as it is pleaded in the responsive allegations here, and appears in proof, essentially a special contract. Now, there is no position better established in the Court of Admiralty than its want of jurisdiction in sucli a case, till the jurisdiction was conferred by the Act of 18G1, the 24 Vic. cap. 10. In the Moiia, decided in 1840, Dr. LiiHhimitmi said : " Looking to the authorities that have been citi'd, their effect is plainly this, ' that where there is a special agree- ment differing from the ordinary mariner's contract, this Court has no power to adjudicate, and the cogni/.ance of the question belongs to another jurisdiction.' Lord Stuirrll decided the Sydiieif Cove on that ground." In the Dchrisca, decided in 1848, he said :— " The right of the maruier to sue is denied, not only upon the gromid that there has been an abandonment of tlie voyage, l)ut that his engagement with the owners was in the\iature of a special contract. This, I apprehend, as far as this Court is concerned, is a fatal objection. I cannot iind any au- thority that would authorize me to interfere ; neither do I see in what way I could proceed to ascertain what is the amount of the indemnification, to which the mariner is entitled for a breach of the contract. matte en- « VIC'E-AD.-\IinALTY COURT. !l III! tiivly and exclusively within the functions of a jurv, whose functions I should usurp in adjudicating upon it."' ' The rule was recognized also in tlie Irish Court of Admiraltv in tlie case of the KntaynHC, 5 Law Times Bej). N. S. 29 And in the same volume, p. 210, and in Lush., 28.5, is' the" case of the Harriet, where the counsel submitted tl'-t anv a^r.^ement by a mariner ,h-horH the ship's articles which • are appointed by the Legislature, is a special a-reemont And J)r. L>,ski„!,ton said : (p. 221) " However diiferentlv the Courts of Common Law may now be disposed to view the jurisdiction of this Court from what they did in former times, I am bound by the limitations imposed on my pre- decessors, and acted upon by them and by myself in former cases ; and I cannot enforce any contract for seamen's wages different from the ordinary mariner's contract." His Lordship added, " 1 am happy to say that an Act- is now passing through the Legislature, which will remedy the defect in the jurisdiction of the Court, which, in the present case, has operated with such hardship on the plaintiff." This Act I have already referred to, and section 10 runs thus : • As to claims for wages and for disbursements by master of a shin— Tlie High Court of Admiralty shall have jurisdiction over any claim by a seaman ot any ship for .wages earned by him on board the ship whether the same be due under a special contract or otherwise, and also 'over any clanu by the master of any ship for wages earned by him on board the ship and for disbursements made by him on account of the ship- provided always, that if in any such cause the plaintiff do not recover (ifiv pounds he shall not be entitled to any costs, charges, or expenses incurred by hi,.." therem, unless the Judge shall certif>- that the cause was a fit one to be tried in the said Court." This section gives in express terms the jurisdiction that was formerly wanting-it extends to a claim bv a seaman of any ship for wages earned by him on board the ship, "whether the same be due uiuU-r a sj)ecial contractor otherwise," and the plaintitrs' counsel contended at the hearing, that the Act of lyOl, as it gave tlie power to the High Court of Admiralty, gave it also by construction, or e.i necr^sitatr, lo the Courts of Vice-Admiralty ail over the Enipini. CITY OK i'i:Tj;i!si;n;ri. 9 T confess I should have liiul on,it diliiculty in afJHuminrr thisjin-isdiction, even luid the Act of 18(J;]. tlie 26 Vie. cu^ 24. not been paRsod. And, as it is, 1 tlu'nk tlie (iu(L^ion must turn entirely on the con.striiction ol' tlie two Acts. The commission to my predecessor, it is true, dated in 184(1, empowers him "to hear and. determine all causes accni':ihnu, H Law Times Hep. VIO, tJie petitioner stated his cane sis foil ws : lie .stated, amoHRst other thin-s, "that a snm of money \vas(hioto the master for wa'^'es, that lie had Mishnrsed various .suin.s, necessary expenses, for and on l)ehRlf of the Chivjfuin, and had also bfcome lial)ie in respect of necc^ saries ordered by hini and supplied, in respect of wa-es dnJ and owiuft- to the crew.' '" Dr. L„Mu<,ty personal action against the ship-owner. J make no order as to costs." ^ In the case of the K to Cooto, !)!$, a dic- tum of Dr. Lii>ihi,i, the -ludHe held that allohjections to the jurisdiction must he taken on the earhest occasion : ami the defendant having appeared, and. after the ndeaae of the ship )n hail, luivinK obtained leav(, to make his appear- ance un.ler protest, tho protest was overruled, " for an absolute appearance once given cannot he recalled." On tliese authorities 1. should have been inclined to hold that i\iv appearance of the defendants, not under protest, was a waU-er of any objection under the f50 clause in the Act of ].S54. Hut, as it struck me at the arMrunient, it was a very ditleront thing to expect the Court to assume a jurisdiction whicli it did nt)t at all possess, merely because a defendant had neglected or did not choose to raise the objection in the proper form. This distinction, which appeared to me to rest on principle, is supported I find bv the case of the Bilbao, 1 Lush., 152. It is there said," " that the Court CITY Ot" I'l-.TTIlSlltrrtd. ],- liaH occ.iaionally considoml .jucHtioiiH of juiiHdicti.m ut tlio la-ariuK, l)ut alwayg with i^imt niluctaiic... ainl only wluiiv then. ini«ht I.o daiiKor of tlio Curt i.n.cv.iin- witl.oiit any junsdiction at all. Tlio (Jourt is noci^ssai-ily oblj^r,,! t„ |,e caivf.il not to cxmid its j.iriH.lictioii, l)iit it -jn „7,t ,^,i„jit^ after absolute appearance, objoctiouH (.f a purely teehnieal kind." It will 1)0 seen, th.^roforo, that wIku-,, th(- Curt is of opinion, as in tlio cases now hoforo us, that it has no jurisdietion. it will not only iMitertain tlu! ohjeotion at the hearing, Init is hound itself to raise it, as seems to have been the case in Swal)ey, 07. Of the merits of these eases I have hitherto said nothiurr thou-h tli..y li;,na-ed lar-ely at the argument. It is of lit- tle .•onst.,|uen<:e, in.leed. whetluH- the merits are or an, not with the plaintiffs, if I have lu. pow,.r to < iiforco them. I niay say. however, that in my opi„i„n, two of the parties at loast ou-ht to have heen paid something; m(,re than they "ot Ihe elaims made to tlie third sixty or thir.l fori vdollars 'l lu,.k upon mider the evidence as untena,l)le. Dnifev a.lmits that he received his advance outside ; and Canwron .ays tliat he received $.10 at Halifax. If ho, J5ailey was .'.ntitle.l t('> nothing more. To Nichoi, if I ha.l the power, I woul.l have aHsigned the whole or the greater part of his second sixty and Valley, whose evidence that he was to recieive three' sixties at Halifax is iniprohable in itself, an.l is besides in- consistent with Cameron's, that a man leaving Wilmiin.ton gets only half-wants $'M of that half. Uy deer..., thla-e- fore would have awarded very small sums, reducin-r the ^\-liole question very nearly to a ([uestion of costs. As the plaintiffs have given no security, and have left the Province • the defendants, in fact, must hear their own costs, and they ;vill probably think themselvas happy in escaping on those terras. I have given more attention to these cases than their in- tnnsic importance perhaps deserved ; but, this being th^ tirst time that I have sat in the Admiraltv, I was desirous otiiiforming my own mind, and communicating the results ot my enqume« to the profossioii, on the new and somewhat difficult questious that have grown out of this argument. i« VrcK-ADMIItALTY (OfllT. y\\ (locivc is that till llnvf HuitH Itc dismisseil. roierviiif* tlio (HR'stion (if costH for furtiitu- foiiHulenition, Hliould. tlio (l('foii,!;iii^H mil-' inc tlirroin, wliiidi, as tli'^ir coiihm('1 how iisswre inc, will ►')t l)t' donL-. .Iu(lj,'m('nt accor(liii,ed to wa>t the insue ; and the nntil hein« detained. I felt t hat t ns was a case in which the full power of the court should be put forth for a speedy decision. In this view I h.n vv been seconded by the cc3unsel of both parties ; and the ulTtl H ;'"? ^'"^ '"'"P'^^^"^' I ^''''■' introduced, mde. tlu authonty of a recent rule, a rird rare exumina- lon Of all the witnesses in open court, immediately follnwe.I lii"; ","' '■ T *'''* '•"' '"'' ^'^' ^-«" «'««^'Iy assimi- lated to, and conducted on the same principles, L- n.-arly so, as a rml before a Jud«e in the Supreme Court. This was conducted before mo by Mr. W. A. Johnston, for the he 10th, 12th and 18th mst., at a cost of about one-half the charge, under the old system ; and the defendant press- ing for a decision, that he may return with the English mail I have devoted the intermediate time to this case, an am prepared to give judgment. Eleven witnesses were examined in all. for the promo- vents, ive of themselves and a passenger not claiminTto he a salvor; and for the defence, the master, first and^ec' ond mate, and two of the crew. The evidence of Mr. IJodd cured. The testimony is full of contradictions, aris n-^ partly, from the plaintiffs speaking nothing but Enl b' and the defendants nothing but French, and partly tVo;' other causes, which persons conversant with Cour of J " I Bhal en / r ^""^.^-^^^^^'t'^^^ ^o»W I'e a waste of time. I shall content myself with a survey of the leading facts, and the conclusions to which they naturally lead. The vessel struck on the N. W. bar of the island on the TeTV' f r^'/'^ T""' ^'^^" ''^^ -« ^oing Z t br eze Z '''''^'' ""°'^ '''^ ^''^^ ^^"1 a fresh Oiceze. bhe was on one of the shifting anp.],ho„K. ,f piesenkd by the plaintiffs as having struck heavily and 111 18 VICE-ADJIIRALTV COIRT. more than once, and by the master as having slid up so easily that a person asleep would not have been awakened, it seems undoubted that she escaped without any seriou.s injury. No repairs have been since had upon her, and the owner and crew are ready to sail in her aa she is to St. Pierre. But a stranding on Sable Island is a dangerous thing- Jew vessels escape that contact with imi)unity ; and in such a position a gale of wind would be fatal both to life and property. The crew and passengers, therefore, availed themselves of the ship's boat, in seven or eight successive trips, with a line stretching \ the shore, to land their clothes, bedding and provisions, to which the master added the mail-bags and charts, tell-tale compasses, and a few other articles. The sails, rigging, and ship's compasses were left on board, because, as the master says, he had no idea of stripping the vessel ; but hoped, with the aid he could o])tain from the island establishment, to get her off; while the plaintiffs insist that he had no such purpose, that the vessel was, in fact, abandoned. Now, it is obvious to me that, while the fate of the vessel so stranded, was, of neces- sity, uncertain; the master did not contemplate — as ho would not have been justified in — an abandonment ; and that he intended, from the first, as was his duty to the underwriters, to get off and save his vessel, if the state of the weather and the aid he could obtain would enable him to do so. " To constitute derelict," said Sir W. Scott, in the case of the Aquila, 1 Ch. Eob. 40, " it is sufficient if there has been an abandonment at sea by the master and crew, without hope of recovery. I say without hope of recovery, because a mere quitting of the ship for the purpose of procuring assistance from the shore, or with an intention of returning to her again, is not an abandonment," So also, in the case of the Bee, Ware's Reports, 839, " When the owner, or the master and crew who represent him, leave a vessel temporarily, without any intention of a final aban- donment, but with the intent to return and resume posses- sion, she is not .considered as a legal derelict, nor is the THK STELLA MAHIE. 19 right of possession lost by such temporary absence for the purpose of obtaining assistance, althougli no individual may be remaining on board for the purpose of retaining the pos- session. Property is not, in tlie sense of the law. derelict und the possession left vacant for the finder until the «j9m recnpemmli is gone, and the animus revertendi is finally given up." On the whole of the evidence, therefore, and the princi- ples applicable to cases of derelict, I cannot look upon this vessel as coming at all within that definition. Two of the plaintiffs, one of whom was familiar with the island, started off at once, but without the knowledge or assent of the master, to the Governor's house, seven or eight miles off. The master and some other of the passengers, after all that was necessary had been landed, also set off for the Governor's, where they arrived at nightfall, and found that the Governor, with four of his men and the two plaintiffs, had started in one of the island boats for the scene of the disaster. This boat conveyed the bedding of the men from the north-west bar to the station or house of refuge, two miles east of it, where the men slept for the night, leaving their trunks and other dunnage at the bar so high up that the tide could not carry them away, and contemplating, as this circumstance itself shows, a possible return to the ship. The ship's boat, at the instance of the Governor, as some of the defendant's witnesses say, was carried up equally high and securely fastened. One would think, indeed, that this was too obvious a precaution to be omitted, and it is sworn to by the crew with the utmost particularity, and in the most positive terms. The island boat was hauled up and left at the station, as in the words of Mc Isaac, one of the plaintiffs, " She might be wanted next morning perhaps to strip the vessel." Capt. Dodd and his men, I presume, then returned to his house at head-quarters. On Monday morning at day-break, it was apparent from the look-out at the station tliat the vessel had changed her position. McKay, the principal salvor, says :— " She was swinging to her anchor, the wind was partly off the land, 20 vici:-ADMinAi/rY court. the vessel was hroadHide to the wind, and had swung her Htern on to the bar." Mclsaae says " she had partly turned end for end. I saw that part of her bow was afloat. She was rising and falling at the bow, her stern was aground." The tide was falling, and the plaintiffs allege that, time being precious, and, as Morrison says, being anxious to save the vessel and to get salvage, they determined to launch the island boat at once and proceed to the bar. Much was made of the launching and weight of the boat, as if it liad been a work of much difficulty, and requiring the skill of a practised hand. The boat, we may presume, was of the kind so well described by Dr. Gilpin in his sketch of the island in 1858, "which have always been admired," ho says, " for their fine beam, great floor, and picturesque higii Btern and bow, and have weathered many rolling seas"' and, no doubt, the beach was fringed with the perpetual eurf which characterises these treacherous shores, though there are at times some halcyon days when all is serene and smooth. Now, without going the length of the defen- dants, and claiming the day in question as one of these fortunati dies, it is obvious that it wad a near approach ta them— tiuit the difficulty of launching and rowing the b(%-it, apart from the mere manual fatigue, is all imaginary; and that the performance of the service was attended with no danger whatever. So far as the incurring of personal risk 18 concerned, there is not a pretence for it hero, nor could a claim for salvage, on that ground, have been entertained for a moment. McKay, indeed, says that the captaiit and crew left the vessel too soon, as there was no danger, and there was no more on the second day than the first*. The plaintiffs then state that they weredesirous that part of the French crew should accompany them in the island boat, and share the labour and fatigue of rowing. Whether they contemplated that, in the event of their succeeding, such of the crew as accepted their invitation should shai^e also in the reward, does not appear. But the invitation is denied. One of the crew says he was repulsed, and there 18 much contradictory evidence on this head which 1 need not discuss. U I '{ THE 8TKLLA MARIK. 21 Tlie IS and boat, with tlio six Balvors on board, left the « at.on about 8 o'clock in the morning, and shortly afte he Frenchmen set out along the beach, intending to em- bark m their own boat and board the vessel at the bar AVhon abou a mile, or half way, they were astonished at perceu.ng the ship's boat adrift, close to which, as one o board The Frenchmen seeing this were then desirous, a. y all testify, of getting into the island boat, and rep at - edly hailed the salvors, who were within hearing; while the salvors deny that any such request was made? Look- ing to the in^babihties of the case, and the position of the parties at that moment. I cannot help thinking that the account given by the Frenchmen is the most likoly'to be true The fact of the ship's boat having got adrift, in some unaccountable way, was much commented on at the hear- ing and strong insinuations thrown out against the salvors. T at the boat was securely fastened by a cord, stretcliin. a ross It to a wreck embedded in the sand, is not only I noved by he man that did it, and described how it wa^ .one and by the other men who saw it done, but is proved also by Men oe one of the plaintiffs, who says : " That the boat after she had gone backwards and forwards seven or .ight times, was fastened to a stake on the shore or bar." Af e all was landed, he adds : " The boat was hauled up. «he was hauled up twice."-that is, as I take it, she wi earned further up. as the Governor had recommended ' be out of reach of the tide. How it was that the boat, und bese cu-cumstances got loose, leaving no vestige of tl t n„g, but, however it happened, this misfortune, in the absence ot proof must not bo attributed to the plaintiff nor m the eye of the law. can it affect a claim tL would be herwise good. Had the. boat remained, there can be no oubt that the French crew, who arrived at th po .^horeit had been secured, three-quarters of an hour or bZt ''^''" the island boat, would have been'o" boaid their own vessel, and the demand for never have been heard of. vage would oo VICE-ADJIIRALTY fOCET. im In the meanwhile, the captain had set out, accompanied by a team from the Governor's, and finding the station deserted by all but two men, he pursued his way towards the bar, and arrived just as the salvors had reached or boarded his vessel. He says : " The boat had not got opposite the vessel when I got opposite to her ; she was about 150 fathoms from the vessel. I afterwards saw them go on board. I commenced to make signs, to wave and shout. I called out to them to come and take me. They had just got alongside as I cried out. My men were all at the time on the shore opposite the vessel, about forty fathoms from her." This is confirmed by others of the defendants' witnesses, but denied by the salvors, who admit peemg the men, but allege that the master came down some- what later, and that the motions he and his men made were in answer to the cheers at their success. The vessel, in fact, was got off in twenty or thirty minutes after she was boarded* by hoisting sail and slipping chain, which, with the anchor attached to it, was lost, their joint value being $140. This, the salvors say, was unavoidable, but the master complaiun of it as an unnecessary sacrifice, and there can be no doubt that if he were, in fact, on the spot, the salvors ought instantly to have taken him aboard, and obeyed liis orders. They aver that every moment was precious, and that tliey are entitled to salvage, were it for nothing else than bring- mg up the island boat in time to save the vessel, which an mterval of two hours would have lost. Whether this is tlie fact or no is a matter of opinion ; it is disputed by the defendants and could not be tested by the event. The vessel, as soon as she was off, was taken possession of by the master, and at 4 o'clock in the afternoon was on her way to Halifax, with her passengers and crew and everv- thmg belonging to her on board. Had not the defendant paid the £40 into court, in the expectation, as his counsel said, of its being accepted and the vessel released, a very nice enquiry would have arisen as to the right of these passengers to come into this court m the character of salvors. It was raised as an equitable bar to any further claim, and I have looked into the cases. THE STELLA MARIE. 23 but not with the same earnestness as if the action depended on them. The most recent and the most valuable of these 18 that of Towle v. The Great Eantern, decided at New York, and reported Slst Dec, 1864, in 11 L. T. Rep., New Series 516. There all the preceding cases are reviewed mcludmg that of The Vrede, 1 Lush. 322, where the Eng' hsh Court of Admiralty iield that it is only extraordinary circumstances, in the strict sense, which can justify a claim for salvage from persons related to the ship as pilot, master Bhip's crew, or passengers. Where the services consist of pumping, or other efforts to avert a danger, or to aid the ship when in distress, there is no claim by such persons for salvage. It is only for extraordinary services rendered by a pn,ssenger, and extending beyond the line of his duty as a guardian of the common safety that such a compensation is due. Whether the fact of the passengers, in this case, having separated from the ship, but still having a common interest m escaping from the island, where, if the vessel was lost, they must have remained for an indefinite time, would have mduced this court to have regarded the bringing of the boat, and getting the vessel off, as a salvage service, is a point of a very doubtful kind, which it is not called upon to determine. The only point is, whether, admitting something to be due, enough has been tendered. This is a point entirely in the discretion of the court. " The maritime laws of Eng- land," said Sir Eduard Simpson, one of the old Judges of the Admiralty, " tix no certain proportion in cases of salvage but are governed by circumstances of danger, hazard, trouble, and expense of saving." In 2 Wash. C. €. 80, the court said: "In appreciating and properly rewarding salvage services, no rule but that which a sound discretion may suggest, upon a view of all the circumstances of each particular case, can be laid down." In the case of Thr Hope, 3 Hagg. i25, Sir John Nicholl was of opinion that the passengers who were held to have some claim, were entitled to share in the salvage only as able-bodied seamen, irom one-half, the salvage claim maybe diminished by 24 VICE-ADMIRALTY COUUT. III i) II the circumstances to mere wages, or a very slight compeii- eation. Tliere have been cases, indeed, where the propertv saved being small and the peril great, the whole has been given to the salvors. 37 L. T. 156. So late as May last, in the case of The Splcmlid, Dr LmhUujton, disclaiming the old habit of giving a moiety in cawes of derelict, affirmed the modern practice, applicable as I take it, to every variety of salvage, that the court should be guided by the degrees of merit in each particular case as it arises. 12 L. T. R. 585. It may be of some value, however, as affording a guide to arbitrators under our Kevised Statutes, cap. 78, to aive a cursory glance at some of the awards in the mother coun- try, which I extract from the Digest of Salvage Awards in the Law Times since 18G1 : No. 417. Value of carRO, /.,5,ooo; award, /500, or 2 percent. Had to cut away masts to prevent barque driving on shore. Award affirmed by Court of Delegates at Dublin as fair and just. 423. Value of ship and cargo, /8,ooo ; award, ^80. or i per cent. Shin Harbour''^ ""'"'' '" ^^''" '''^'^"' "^"""^ ^'•' '" '""^' '"'° ^^'n^'gate 429. Value of property. /900; award ^25. or 3 percent. Lost main top-mast, mam top-gallant-mast, and fore topsail-yard. Assisted bv a pilot boat. 457. Value of property /, 2,000. Dismasted and among breakers close in shore. S.x boats towed vessel into a place of safety in an hour and a half. Very fine weather;-no great labour-no difficulty and no risk /- each awarded to two men, and £z to each of the men composing the crews in the boats. 442. Value of ship and cargo ;rio,ooo. /loo tendered, but overruled and ^200 awarded, or 2 per cent. Ship dismasted and riding at anchor' and weather tempestuous. Pilot boat landed the crew, and removed the vessel to a safer anchorage. 489. Value of ship and cargo /i,4oo. Struck and sprang a leak Three pilots boarded the ship ; assisted to pump her and brought her in. Award £20, or ij per cent. These awards are interspersed with others of a much higher grade, and .some of them would be accounted very low under the practice that has usually obtained in this Provhice. This court is by no means disi)osed to under- value salvage services honestly performed, and accompanied With skill and danger. Neither can it encourage extravagant III I THE SCOTSWOOD. 2") demands; but, in striking a liappy medium, its duty is to weigh all the circumstances of each particular case as it arises. Now, regarding all the facts that are in proof in this case, regarding the loss of the chain and the anchor and the doubtful or contradictory evidence on this and other points, I am of opinion that the tender of MO ster- 3ing that 18 4 per cent, on the value of the ship, and making $-200 to the SIX salvors, $33 1-8 to each, was sufficient, and I decree accordingly. The awarding of aosts is a matter really of more difficulty than the principal question. The practice m this court in cases of tender is entirely different from that of the Courts of Commou Law. The discretion of the Judge IS expressly recognized by the general rule, sec. 29, and by the cases in the Digest 8 L. T. R 613 Here the conflicting evidence will operate in favour of the plain- tiffs If their account of the transaction is a true one, it would be an injustice to condemn them in costs which would fiwallow up a large proportion of the salvage money. Costs I cannot, of course, give them, the decree being for the de- fen.lant; but I do not condemn them in costs. 1 direct therefore, that the vessel be released forthwith from arrest (the defendant's proctor arranging the fees pa^-able by him to the registrar and reporter when taxed) and that this 440 sterling be paid to the plaintiffs after deducting the costs payable from the commencement of the suit to the marshall and other officers of the court. W. A. Johnston, proctor for salvors. HiR.vM Blanchard, proctor for owners. THE SCOTSWOOI). (Delivered i ith Decembkr, 1S67.) h.ZT"''r'~:'^^"'f'^ ^"""'■""''' ™«'-''i"K ^vith tempestuous weather became water logged and completely disabled, the provision., compasses and charts bemg washed away. In this condition she was found bi th" came altnT' m" 1'"^ f'T""' "'"'''' '" '"'P"''"' '° ^'S"''^''* of distress, came along side and took oft the captain and crew of the ship, putting nine 26 VICE-ADMIItALTY COniT. of her own men on board in their place. The captani and crew of ihti ship never attempted to rejoin her a^ain. bnt remained on board the schooner until port was reached. The heavy weather still continuing,' the schooner was unable to manawe the ship, and the f„llowing day, on another schooner, the Laura, cominj; near, they hailed one another, and after consultation, it was decided that each .schooner should send seven men on board the ship, and that then both should take her in tow. After ureat exertion on the part of both crews, the ship was on the next day brought into port. The evidence was not conclusive as to the intention of the master of the Scutswood to finally abandon her, but the salvaRo .services rendered bqinR hishly meritorious, this was not considered a point of much importance. HeU, that two-fifths of the appraised value of ship and cargo should bo awarded as salvage, to be divided e-iually between the two schooners, the owners of the schooners to receive one-half the amount falling to each. The cases reviewed as to the rate of salvage in causes of derelict and the vitiating of insurance by deviation to save property. The ship Scotxicoo,! of tlje hiirthon of 745 tons. owikmJ in England, jind hulen witli a cargo of wood, saih'd IVom Quebec on the 'J7th of September hist, under the command of Captain Suthedand, bonud for North Sliiehls. Sht.' had a creAv of eleven men, and was well provisioned for the voyage. Between the 30th of that month and the 1st of October, she became waterlogged ; all the provisions wero washed out except one cask ; the bulkht;ad was washed out ; all the front was open. In this disabled condition she fell in on the 3rd with tiio ship lona, and hoisted a signal of distress. By this time the compasses, charts, !ind all the clothes of the crew, had been washed away, and the crew refused to remain on board. The captain went on board the lonu, and asked for volunteers to try and save the vessel and cargo, and offered t'40 a man if they would get the ship into a place of safety. The whoh, of the crew had left the Scotswood, but six of them returned, with six men from the lona, who agreed to go. The captain accompanied them, carrying with him a com- pass and chart and some provisions. The ship at this time was about 30 miles from Magdalen Islands, the wind blow- ing hard, with a heavy sea, and the men exposed and with- out shelter on the deck. Next morning, the John IT'. Brvau, an American fishing schooner, hove in sight, and TlIK SC'OTSWOOn. '27 the lona'H men put up a signal of diHtrcss ; aud as the weather was Btorniy, with every prospect of an increasing; Kale, Captain Sutherland thought it l)etter to leave the Hhip. and take refuge for a time on hoard the schooner, lie says, however, that he had no intention of ahiindoning the ship, but meant to return if the weatlier moderated? I'art of the men on the Scotmrood launched tlie ship's hoftt and got on board the schooner, and a second trip of the same boat carried on board tlie captain and rest of tho crew. There are liere some contradictions in the account given by the captain and by his mate and carpenter, when contrasted with that wliich is given by the captain and crew of the schooner. The latter represent Captain Suther- land as desiring to cut away the boat, which the captain denies, alleging that while he and hi^ crew, exhausted with fatigue, were asleep) below, a part of the crew of the schooner boardc^d the ship in h.u- own l)oat, assurainrr in fact, the character of salvors. However this may be. Ft ia certain that neither Captain Sutherland nor any of his crew returned to theii ship, nor is it alleged in the plead- nigs or affidavits that they ever offered to return, or that any duress or constraint was practised upon them by the master or crew of the schooner. Nine of the schooner's crew remained on board on the night of the 4th, the sea all the while breaking and sweeping over the deck. The ship was headed ofif the land, and the scliooner took her in tow, with the intention of rounding Cape North and reach- ing Sydney, Cape Breton. This, however, was found to be impracticable, and the men wore ship round, with the design of carrying her into the Gut of Canso. Next morn- ing the ship was again taken in tow, but the hawser was cut away a second time, from fear of collision. At night when off Margaree, a heavy gale set in from the south, and the men, fearing to remain on board, returned to the schooner, a light having been fastened to the rigging of the Hh.p, and the schooner laying by her the remainder of the night. On Sunday, the 6th, the gale continued all day making it too hazardous to board the ship, and the Bchooner remained at some distance off till the afternoon 28 VICK-ADMIHAI/rY COIHT. u wlKM. sewn of \h'V nun wont olT in tl.o boat for tlmt pur- posc. In tho juoiuiwliilo, another Hc^hoonor, tlio Uim, iH'lonsinK to Islo Madamo, d.-scri,.! tli.. nhip lvin« ahont twenty niilos from Kast Point, and ahortlv aft.-r ol)Horv(.l til.' Join, U: linm;, al)out fom- miles off and lu-ariny down towards her. Tli«' two Hclioouors tb.-n liailcd cncli otl.cr. and after some parley, it was af,'re..d that wlien the w.'ather moderated seven men from each should hoard the ship, and that hoth vessels should take her in tow, there hein- imminent iicui,(l, in addition to which I directed a virii roc>- t^xaniination of Captain Sutherland, nnder the rules of 18,19. Upon these pleadings and evidences the case was heard before me on the 25th of November, aided by Captain iioi-don, of II. il. S. Cclmu.^, sitting with i- • as assessor THE RfOTHAVOOD. 2!) It was not disputed on the part of the ship that this was a ra<"ntori..us cano of Halva-... tho only .piostion l>oinK hh to tlio amount, and tlio principle of distribution anion" tho salvors. Sonus ar<^ument, in.lood, was raised as to^tiiis benig a case of dorolict. and it was ur-ed that if it coul.! l,o so considored, the rat. of re.nunerati..! would he cnhanood Hut. although tiio facts atnounted very nearly to an ahan- donraent, the x/>rH rec,ii>rnm,li did not appear to ine to have aito«etIun- Rono, nor the anunm n:rert,n,M to Juive been hnally «iven up. The impression made ui)on tho assessor's ranid. and upon my own, was that Cap in Sutherlan-l had exerted himself as much as could reasonably be expected and would «ladly Imvo returned to his ship' had the state of the weather, the exhaustion and tho disinclination of the crew, and the claims of the salvors, pcirmitted. Nor is it of much consefpience whether the case he held one of derelict or not. Tho old rule, which allowed a moiety in cases of ,h.-relict, an.l to which Judse Star,/ cluiKr with a pertinacity very unusual with him, has been lon^ since abandoned. So far i)ack as 1B34, in the cas<. of the I'ltfort, 3 Hagg., 165, Sir Join, Nicholl said, "This is a manifest case of derelict, and by the old law, half the value was always given in such cases, but it has been long held that the proportion is discretionary, and dependent on circumstances,-seldom, however, more than one-half or ess than one-third is given." In the case of the Splaulid, 1^ L. i. 11. o8/5, which I have had occasion to cite more than once in tiiis court. Dr. Lushiw,trood, after the second trip of their boat to the ./. W. Brown, had abandoned their I have the honom to be, sir. Your most obedient servant, Alex. C. Gordon, Captain. As this opinion was the independent judgment of a gentleman called in for his professional skill, and in whom I have entire confidence, I feel it safe as well as proper to act upon it. '■ Each schooner will be thus entitled to X'38C sterling and 1 have now to arrange the distribution between the owners Si'HT «ei,»^,-:^iil^ 32 VICE-ADMIRALTY COURT. and the crew. In the United States, it would appear from the case of tlie JLnmj Ewhanl; 1 Sumn. -127, that' one- third is usually awarded to the owner, though several cases are there cited where he was allowed one-half. Now, it is to be remembered that both the schooners here had 'been fitted out at great expense for, and were actually prosecut- ing fishing voyages, where the risk of the capital belongs wholly to the owner. The John W. Brown estimates the loss on the mackerel fishing at $5000, which I look upon a» altogether extravagant. 1 have taken this into account in awarding the salvage, but greatly modifying the idea, or the expectations of the owner of the American schooner. He sets out, too, as a ground of claim, that the vessel was insured for $9,000, which policy, he says in his affidavit, has become ineffective from the vessel having deviated from her voyage in rendering salvage service, and saving the Scotmcood and her cargo. In the case of the Waterloo, 2 J)odson, 433, where Sir Jniliain Scott gave a salvage of £4,000, and in sub-dividing this gave one half to the owners, he said he did not altogether lose sight of the danger which the vessel incurred of vitiating her insurance, although that, he added, may be a questionable point. There is a distinction also to be noted here. Had the Scotswood been absolutely derelict, found on the high seas with no person on board, it would seem from the American rule, which ArnoiUd thinks also extends to England, that a deviation, merely to save property, does vitiate the in- Burance. But, he adds, it must now be taken aa clear law, both in England and the United States, that where the lives of men are threatened with imminent danger of ship- wreck or foundering, a deviation to save them, aa it is sanctioned by the true interests of commerce and th , clearest precepts of humanity, can, in no instance, be held to dis- charge the underwriters. The distinction is recognized in the cases of the Boston and the Henri/ Eivbnnk, 1 Sumn. 335, 400, and as life as well as property was rescued from danger, it applies to the present case, and the insurance of the J. W. Brown, in case of loss, would have been main- tained. .! : TnF5 BCOTSWOOD. gg I have only further to remark that, in the distribution of the other moiety of the salvage among the crew I have been governed by the principles in Coukling's U s' Admi ralty Jurisdiction, Vol. 1, p. 367, modified bv the particular en-cumstances. No mate is named among the crew of the Laura, but I have assigned a larger share to J. W Green from Ins superior qualifications, and his having had charge of the wreck. ^ The distribution of the salvage will therefore stand thus • In the case of the ,/. W. Brown : The owners. . . i?iA- i i- ihe master og i. The mate og «< Thirteen men, being the rest of the crew, £d each nj „ .£330 sterling. In the case of the Laura : The owners. ... n^rr i ■,• m, , ilfiS sterlmg. Ihe master 23 •« J. W. Green £0 " Twelve men, £9 each jos Two boys, M 10 each .... 9 ii330 sterling. On these sums being paid, with the taxed costs of tJie sa Ivors, I shall order the ship and cargo to be released. If not paid within a reasonable time, I shall direct a sale and award two-fifths of the net proceeds, whether less or more han the above sum, to be distributed, as nearly as possible, m the like i^roportions. P. H. Lenoir, proctor for first salvors. H. Blanohard, proctor for second salvors. J. N. Ritchie, proctor for Scotswood. !^' V-A.R. 84 VICE-ADMIHALTY COLllT. THE WAVELET. (Dei.ivericd ArocsT t5Tir, 1867.) While two vessels, the Wnvcht and the Diimice, were attempting to pass one anotlier, in Halifax Harbour, they came into collision under circum- stances for which the former alone was accountable, and she was therefore held liable in damages. The fact that the Wavelet at the time of the collision was in charge of a pilot, held, no ground for exemption from liability, pilotage not being com- pulsory under the Provincial Statute. The collision occurred inside Halifax Harbour, and, therefore, within the body of the County of Halifax. The defendant put in an absolute appear- ance without protest or declinatory plea, but the question as to the juris- diction of the Court was raised by him at the hearing. Held, that under the Statutes, 24 Vic. cap. 10, and 26 Vic. cap. 24, the Court had full jurisdiction in the matter. This is a case of collision, in -which the evidence was taken with the approval of the Court and by consent of parties, upon the preliminary acts authorized by the rules of 1859, and without further pleadings in the cause. The principles applicable to such cases in the Courts of Admi- ralty are well settled. In the case of the Woodrop Sims. 2 Dods. 83, Lord 670/rcZi states the four possibilities unde f which collision may occur, and the remedies, some of which are pecu- liar to the court, and render its jurisdiction highly bene- ficial. The party claiming to have full relief must be pre- pared to show that he himself was not in fault, and that the opposite party is chargeable with negligence, inattention or want of skill. Where vessels are rightfully pursuing the same track, they must be careful not to molest or crowd upon each other, and where one is astern of the other, the rear vessel must exercise a degi'ee of care to avoid col- lision, which is not chargeable to the same extent upon the vessel that is leading. By the rules for preventing col- lision, issued by the Board of Trade in 1863, Art. 17, " Every vessel overtaking any other jsel shall keep out of the way of the last mentioned vessel." In the light of these principles, tho hearing in this case was had before me, with the aid of a naval officer, selected THK WAVELET. 35 26 Vic. cap. 24, the by the \ice-AamiraI, and who has reported his opinion on the whole evueneo. which I shall presently real an file lo go over the depositions would he a waste of time I shall content myself with referring to a few passa.^os from those of Brxtton. MePherson, McDonald, Bowvil and Cpl, which m connection with the other parts of the testimony have led me to perfectly acquiesce in the conclusions of 1 e' assessor and to pronounce in favour of the Duudee The learned Judge here read certain passages from the evidence iind the foUowmg letter from the assessor : 'H. M. Ship Gannel. „,..,, " Halifax, 16 July, 1867 SiK,_After having carefully read through the evidence of ,h ..tnes.es in the case of collision between the si.; ,; , 1 ; ^rl have to give it as my op nion that thn chi,, ti/ ; . • 'Ji'niiee, I -0,10..,,. ci,cu,„.,.,L'. : „n r ,"oi,e ,s::';s ;;, t:.;:;:' "• south-west by west. """ '^"'"•''^ "''« ''^^ steering ray«l o/ro» ih. Mar LJ ^,^1 f "°"''''' ''' "'■"'' ™"> •'>• McDonald ,h. l' „ ,„ hi' , ■f'' '■■°' "^ "'"'' "«'» ">: "• '■'Mh... "in■' '» ' """"'■ >•"' prevent «=»t;j,:;::?:;;t,r?.:;:itvzT 'r "r """'•"■' '- ""• w^^ m . :?r) VICE-ADMIRALTY COURT. the Wavelet had the power in all ways of preventing a collision with the Dundee by tacking before he Uid, or putting his helm up when the Dttudif tricked. " That, with the wind from south-by-east, or south, it would have been very imprudent on the part of ti.e master of the Dundee to have anchored Ml close to Cieorge's Island as he was before he tacked, to prevent a collision. " Taking all the circumstances of the case into consideration, I am of opinion that the Wavelet had all the means in her power of preventing a collision, and the Dundee none, with the e.xception that when the Dundee saw the Wavelet was pressing him so much upon George's Island as U; endanger the ships safety, that he might have put his helm up, but which proceeding would have retarded his passage to sea, and was one which lie was not expected to take under the circumstances. •• I am sir, your obedient servant, 'John J. Covbv. " Navig-atinfr Lieutenant, H. M. Ship Gannet." McDonald, tlie witneBs, being a licensed pilot on board the Wnrckt at the time of the collision, and, as may be fairly assumed, having been in charge of the vessel, 1 directed a re-argument, which was had before me on the 7th instant, upon this point, as aii'ecting the liability of the- owners, and upon another point, which I shall presently refer to. By English enactments pilotage is sometimes com- pulsory, and where a pilot is bo taken the owner is dis- charged. There are numerous cases upon this head, and it ■was desirable to ascertain the true character and effect of our own statute, and the relative position of the Colonial and English ship-owner. The general Pilot Act of Eng- land, 6 Geo. IV. cap. 125, to which most of the EngHsh cases refer, was repealed by the 17 &, 18 Vic. cap. 120, having been superseded by the Merchants' Shipping Act of the «ame year, cap. 104, the fifth part of which, in relation to pilotage, is confined in its operation to the united kingdom. Several of the sections, 87(5, 879, 388, enforce and recognize compulsory pilotage in terms, and in consideration thereof, limit the liability of the owner. But no such term or limit is to be found in our Revised Statutes (3rd series), cap. 79. By BBC. 8, any unlicensed person other than the master taking charge of any vessel as a pilot, shall surrender the guidance thereof, under a penalty of $20, to the first licensed pilot THE WAVELET. 87 who shall hail him at certain distaucos. By the 10th, if I lie services of the licensed pilot so hailing shall not 'be accepted, he shall be paid half pilotage by the master. By the 11th, the master of a vessel, when hailed by a licensed pilot, shall shorten sail or haul to, so as to facilitate the pilot's boarding, under a penalty of $8. And by the 12th, .<-ertain advantages are secured to a licensed pilot who shall have spoken or conducted a vessel inwards, and shall <.fi'er his services to pilot her outwards, vhon such services are declined. There is no clause in our Act resembling the 55tli section of the 6 Geo. IV. cap. 125, or the 888 section of the Merchants' Shipping Act, and I am of opinion that there is no compulsory pilotage, in the right sense of the term, ni this Province. The only effect of our Act is to impose certain penalties by the above and other sections on the master or owner, and the employment of a pilot being voluntary, does not by the law-merchant relieve the owjier >of Uability. In cases of collision, it is no defence to the owners that the ship in fault is under the direction of tiio pilot, and that the remedy hes against him. Thev are liable, in the first place, and must seek their remedy a<^ain8t the pilot. 1 Bell's Com. 383. " The pilot, while on board has the exclusive control of the ship. He is considered as master jyro hue vice, and if any loss or injury be sustained in the navigation of the vessel while under charge of the pilot, he is answerable as strictly as if he were a common -carrier, for his default, negligence, or unskilfulness ; and the owner would also be responsible for the act of the pilot as benig the act of his agent." 3 Kent's Com. 212. See also the cases of the XeptauG, 1 Dodson's Bep. 467 ; the Cumhey. ■ iand and Lord John Ihistell, Stuarts's Vice-Admiraltv Im- ports of Lower Canada, 75-190, where the doctrine is fuUv exammed by Judge Black. Compulsory pilotage, said J)r Li:,sln,u,ti!ls now before Parliament, and in which I took a warm interest while in London, receive the royal assent, an improved and simple practice and a moderate tariff will give the Court a new life, and draw to it. I trust, the confi- dence and esteem of the community. In the present case I pronounce in favour of the Dundee with costs, and direct the usual reference to ascertain the amount. J. Y. Payzant, for the Dundee. W. Sutherland, for the Wavelet. THE PUNEBEEG. (Dl-I.IVKHEI) DucKMUliK 8TH, 1S67.) Directions as to the proper method of payment to salvors of the amount awarded them by the ("ourt. The proctor for the salvors stated that since judgment had been pronounced, * the proctor for the owners of the salved vessel had paid into his hands the amount awarded to the salvors, ^,\xu'^^ having been paid by him to the agents ot the salving ship, had been by them made subject to a eomnussion of five per cent, as against the salvors. The learned Judge intimated his opinion, that this should not have been done, but that the whole oi' the salvage money • 'llie judgment herein was oral and no report was preserved. THE SILVKK HKI.L. 48 Hliould have been paid into Court, and then paid out m.dor ith authority to the salvors in person, if they applio.l therefor, or if not, to their duly a-thorized agent. It was further directed that the receipts of the salvorH ..r of then- agent, with proof of his authority, should ho filed in the cause. M. I. WiLKiNK. for salvorfl. J. N. Ritchie, for owners. rs of the amount Tlffi SILVElt J3ELL. (Dei.iverei) April iisr, iSOg.) This vessel, while on a coasting voyage, put into harbour lor the night on account of heavy weather. During the night, the wind increased, and tne vessel dragged her anchors until she struck on the rocks and was J) aced in orcumstances of considerable danger. At this point, the claimants tendered their services, and after two hours' labour succeeded .n rescuing her from her perilous position and securing her in a place of safety. The evidence was exceedingly contradictory as to how the claimants came on board and the merit of their services, the defendants disputing l^heir claim to the character of salvors. Nevertheless, the defen- dants paid the sum of »ioo in court, and the weight of evidence seemed to be with the claimants. Held, that the sum of »2oo .should be equally divided among the five claimants. " Tills is a case of salva<;e in which the sum of MOO has been paid into Court, at.d the sole question is whether that Bum 18 sufficient; while the only difficulty arises out of the utter irreconcilability ot the pleadings and the evidence. On the one hand I have the act on petition of live salvors suiiported by the affi.lavits of four of them, and six other affidavits generally sustaining them. 0„ the other hand there is the answer of the part owner, and master, and two other persons on board, supported by the affidavit of three of these parties, contradicting the promovents in al- most_ every particular. The two statements agree in the position of the vessel and what was actually done to her — 14 vicj;-Ai)Mriuf,TY coi i:r. t]ie defendants, boliering there was no danger, dechned their assistance, and tlie salvors came on board in a dory, or small flat bottomed boat, of their own TiiK sri,v!;r. nr:i,i,. 45 iiLvonl. Tliosc ()i)i)()site views were much insisted on :it tlin lieitrinK. l)iit they are ehielly to bo rej^'arded as testin:; the '^oni\ fiiith of the parties, and tlio reUability of their oiths. The defendants liave recoj,Miized the i)laiiitiirs in tiio character of salvors hy paying' money into Court, and if the vessel was renlly in danner, and salva^'o service ren- dered hy the plainlitls, it is of no importance whether it was rendered spontaneously or hy request. The fact of salvors hein-; volunteers often adds to the merit, and never detracts from ir where they are entitled to a salvafre com- pensation. 1 must remark, however, that the weight of evidence on this point is largely with the claimants. It is not only sworn to by (our of themselves, hut by two inde- pendent witnesses, Cooke and Sears. Whether in going they really ran any risk of life, though positively averred'i seems to me very donbtful. I cannot but think that it has been greatly exaggerated, and that the nature of the Htorra, and the real danger to the vessel, too, have been highly coloured. In two of the salvors' affidavits the risk of life is not alleged, and when old :\rr. Wrayton called to his H0H8 and the other men, "not to attempt going on board, as they woidd surely 1- l(,,st," his fears must have pre- dominated over his ji lent, and sure [ am that both life and property have !»een hundreds of times saved on our coasts under far more perilous circumstances than are in proof here. There is strong evidence, no doubt, by Att- wood and others of the state of the ship, which they re- present as striking or pounding heavily on the rocks. Att- wood says the spray was making a clear breach over her, aud he i xpected to see her dashed to pieces, and his con- versations with two of the defendants on l)oard are sigaifi- caut, if they are entirely to be believed ; but v/e must recol- lect that all the affidavits on both sides are of necessity ex piirtc, without the safeguard of cross examination, or the opi)ortunity of explaining or contradicting any statem-nt that is not in the pli^dings. The admissions attributed in several instances to the defendants, are wholly inconsistent With tlicir answer and afiidavit, aud, therefore, must be received with caution. 46 VICE-ADMinALTY COURT. There is much contradictory evidence of what occurred after the salvors got on hoard, each party claiming the merit of what was done, and the defendants entirely dis- putnig or depreciating that of the claimants. I shall not go nito the particulars as to the heaving in of the anchor and the hoisting of the jib and foresail. What was done seems to have been done skilfully and effectually,-the vessel was got off wholly uninjured, and after two hours work was made fast to the shore in the lee of a small island half a mile off, where she was safe. And now the point is, what is the value of this Pervice '» McKay the old man, wanted to pay it with ten dollars,- two dollars a piece to each of these men-a sum ludicrous- ly small, as I cannot but hold their demand of four hun- dred dollars extravagant. In their answer the defendants say that after the vessel was made fast and the sails Juried, the captain spoke of his wish to remunerate the parties who had come on board for their services, hut hav- ing no money he would give them some apples and cider, to which some of the parties replied that they did not expect, nor would they ask, anything for what little assistance they had rendered; but Mr. Wrayton and the o hers stated that they were going ashore, and would be aboard again before the vessel got away. It was when they returned that they made the demand I have spoken of, when old AJr McKay, as Harris, one of the plaintiffs testi- fies, told Michl. B. Wrayton that he would not trust his he with him and that they were all a parcel of robbers. Three of the defendants who have joined in the affidavit (the fourth person who was on board as one of the crew being absent on a voyage to the West Indies) declare that when the captain offered the claimants some apples and cider one of them, Thomas Nickerson, who is a plaintiff here but has made no affidavit, said he did not come aboard expecting to get anything, but merely to give the defen- dants a hand This statement appears for the first time in the defendant's affidavit, and, as in the case of the alleged a0, and an award of salvage was made on the 30th of June. Tlie owner of the Thistle, Alfred Larder, became one of the pur- chasers, and thus was interested in the proceeds in the somewhat inconsistent positions of salvor, as owner, and as master for his own behalf, and as concerned with the other purchasers and salvors who are resisting the demand of the two promovents in this Court. One of these, Thomas Tybo, THE FLORA, 49 made oath to his claim on the 0th of April last -mcl T i. i a warrant against the materials her'^^^^^ Court had jurisdict on under fl.P fh,-v+„ .u . "^'^'^ "'^ Actofl863,andonthrile et^a^^^^^^^^^^ of the jurisdiction in salvLe cnZl is W '^^^^^""^^^^^^"n and that salvage constitute tli l^^fT '" ""' (I^itchard-s Digest, 450. 4(;4, and caseTtl ^ S "t1 f her promovent. Peter Johnston, then came and t! claims were consolidated. The next sten ,v! • ^ appearance by the master, and t ^ee ot Irs ^1' '^"f '"^ and an application by the maste and f , ' '''^^"^■''^' to bail the material^ .hicr^;:i:t:o!;s^::^ their value appraised at $799. The hearin/w ' the 14th instant. Mr. Eitchie app aZ ' r f " 1 others of th. salvors in !.,■« . .'^'i'^f'"^S foi Larder and have anvth^.g to do with the questTo, of , ""'r "' ^"^ admitted that the A'BoO the ^ ''^''- ^* ^^^^ Now.undiand.sho.^di^^^.frrzi;:i:^;-V' and cargo and all the materials saved and tha/ '/^ the cases of the Brnnrn aiT 1 e v.! ' r?,^«P^«^«"y in culty in confirming nZTl ^^'^ .'^ '"'"'■ "< I have no diffi- Newfoundland, but without distr^uTsht. H " "''T'"' of the salvors The sum ,. "'""""'"^'fS the proportions ivitl, whom tins Court hm to ,loa 1 1 !, ° •""■'""' an.o.,„t awde,, a, tho bal t,' . S "tlr' "" "(the &,„.„.,«,, r assigned o„e „„;"•, .yV"" ,™""nllo tl« ship, „,„, .,hi,,e,l th ° hi tol "" the maslor .a„,l crow o„ thp „.i„„„i > , ^ """"S ! ^'.« -to . a,wa,s „ssi,„.„ „ ,„,.^,„ „„,.;.rri,re efj! 4 U M I 'ill ii!:i iJi 60 VICK-ADMIRAI,TY COIUT. mon seaman, and the seamen remaining on board the salv- ing-ship are entitled to a shave, though not always so large a share as the men on board the ship that is saved. There are here, the master, mate, and seven others, f(nu- of whom were shipped, or went on board the Tliisth', at St. Pierre, with a view to the salvage service. With the comparative merits of the seven persons who are not before the Court, it will not interfere. Tybo was one of the five who first boarded the Flora. He describes himself as not only the mate of the Thistle, but acting pilot, which is denied by Larder and two others. He again went on board the ship, when, as he says, there was but little hope of saving her, and four men remained, of whom he was not one. After this he con- tinued on board the Thistle. Johnston was a volunteer, shipping at St. Pierre, but his merit as a salvor is not the less on that account. He was one of the four who remained on board the ship till she was safely moored. Ho alleges that Larder gave him the command, directing the others to obey his instructions, and that all his navigation books and utensils (whatever these may have been) were washed over- board. For some time the four men lost sight of the schooner, and for one day and a night they were withcait provisions, fire, or light. Larder and the two others who join in his affidavit say, that, with the exception of one night and a day, it was not hazardous to approach the Flora at any time, and that whenever it was requisite the schooner ran close alongside the ship, and things were passed by a line from one vessel to the other. It is obvious, however, that considerable danger and great fatigue and privation were incurred by Johnston and his associates, raising their claim to an equality, at least, with that of the mate, if not of the master ; and on the best consideration I can give to the whole case, I award to Tybo the sum of .£22, and to John- ston £25, with their costs. They will have no claim, thero- fore, on the sum awarded or received in Newfoundland, with which, as I have already said, this Court has no power and no disposition to intermeddle. Neither do I intend these promnventa to liave any share of tlie h'glit duos romittod l)v Government, and I think they should bear equally the costs TirE MARINO. ■ ni P. H. Lknoik, J. S. D. Thompson, for salvors. J. N. J?iTcniE, for owners. i )| THE MARINO. (DeLIVERKDJanUARV, 20T.r, 1870.) unmanageable; in which condition she HrifT T'' '""'^'''''^ '"^^ ^''"°'" Sco.iaforseveralclays,un,ilfan ni,"«?h r "'^ ""' ^°"^' "^ ^'°^- took her in tow, and afte e^ Ti^nil h f"'''^'^"'""'^"'^^''''^'^ Harbour. There was some eviden. ^ '''°"'"" ^'' '""'^ "^''f^.x .nade for the services renlj; t^L actLu" ^^ '^°" ''^^'"^ •^-" rroved. The value or the ^.,W.wL^prdr$?:o:: ''' '^ "^ tieU, that the sum of »8oo should be paid for salvage. " Tliis case was conducted Ijv /.ef nn ,,„fr .n,we.- thereto under tl.e ameidi ;; r L 8M Td .r United States, bound fo't;'c"f ^'' "»» ""''on. rienced a severe gale on the 27 ^^^tfe "'t" ^^ " ™»land main top-mast koke alt 'c 'f Th ' ""' thencomtjelled topiif n,.,o,,+i r '"^ '"'^P'^- Hiey were iibboom J bows t Sir XZT'::'''''T'''' ''' foretopmast stay-sail, and on ihe 28^ flT'' '''' '''' from the wreck Thpr! j? ^''^ *^' ''""^^l «lear -»un„.a„a;ea^,e:a:Ltl^,Srf„:?,'''«.--' S»"g a jury-mast, and lmvincrsecnVp7r 'T^'^'^ '" ^"^g- "'-tops„i,o„i.,.n;:^rr:r:t:;rrr,ar''s 52 VICE-ADMIRALTY COrRT. risk and sailing power of the vessel in this state are viewed somewhat differently hy the witnesses. The plaintiffs con- sider her to have been in danger, and two of the witnesses say that she would not steer at all, except when going be- fore the wind, or when the wind was light— that as socm as it began to blow she would luff up and lose steerage way, so as to be beyond any control. The registered owner and agent of the salving steamer testifies that he was informed by the master of the Marino, that after she was dismasted she was unmanageable, and was always coming up into the wind, and that he was at the mercy of" the weather ; that he was off Canso on Wednesday, but could not get in in con- sequence of the vessel's not steering properly, as he had to go whichever way the wind took him, and he had taken from that day until the following Sunday in getting from Canso to the place where the Commerce found them, being a distance of about fifty miles. Tliis last affidavit, however, was made several days after those of the master and mate,' and there was no opportunity of explaining or contradicting it. Tiie Commerce fell in with the brigantine off Beaver Harbour, about eight miles from the land, and having offered to aid her, a hawser was thrown from her to the steamer, and she was towed into Halifax in eight or nine hours, Tlie captain says, as the weather was mild, they could have reached this point without any assistance ; but, he very properly adds, as the weather had been changeable and stormy for several days, and they were not aware how long it would continue in its then state, he accepted the offer to be towed in. and the master of the Commerce, having re- jected an offer of S500 for this service, it was agreed that the amount of compensation should be settled by this Court. The defendant's answer alleges that on the 20th Novem- ber, and ])efore any process was issued, the sum of $500 was tendered to the owner of the salving ship, and a con- siderable part of the argument was addressed to the effect of this supposed tender. ]3ut there is no evidence of it at all on the part of the defendants, and Mr. Phelan (the agent of the steamer) says that no tender of any money was made to him, and that he had several conversations THE MARINO. 53 Avith Mr. Troop, the agent of the underwriters of the If,. • upon the suhject, an.l he expressed himself w 1 ! $000, .vhieh the owner declined trleT Now ?' '"■ '"'' room to douht that, if the owner Ztl . ^^'^'"'^^« ^« "« the $500 would ha^e been na^ tT u^' "'''P*^'^ ^*' offer of this kind has be ^h Id in the Un^",t f ^"^"^ n good tender, it has not been so h Id i."," r""^''' '' ''^ iBiralty in England, nor in this Cot "^ f .^^^V' ^'■ tice of the Admiralty was th.t i.o r, } '"^^'ent prae- must he offered a certd '' ''f ' '^ ^«'^«*'t"t« ^ lender, there costs due by law rarmX- , r^"' *'"""^"" ^^'"'' *'-' ^«ti.i.aeLof;i:rr:t;:?tnr?;'rr"' somewhat modified in Fn^rlan^ * "^'^ '^<^^» D ./,,,./„„,,„„ ,„ the cas, of ll,e .5„„,,,,,„, , '^ ™ '^W ''> »alvi„g Hhip. ,si,e wafd'sle 1 H. lit'"'''?"'" '"' chance salvage mre ,va„li„g. still a , al , , ,-"f service was done Tlipl.ri™,,!- °" '• ' ' ' «>''»'»ntial brought safely and m^ii^tZt^Zt^: 7' ™' repaired and enabled .„ pLecl I""" ^ !' "^ done by a steam shin of ^„ ^ , ^ojage. 1 his was '"''' <" ""' I think I will do her owner,! »' '' ""l''"-"'" ™s SO.OOO, 1 ^ «ioie me. it is customary to assign ^nm-M • Jiiore to a steamshin than tr» « cn-r" ', ° something -co». awards trt'ro:ror.rer;ne';;:-^^^^ 64 VICE-ADMIRALTY COURT. $400, to the master $135, the balance to l)e dividea among tlie other officers and crew, incHiding all on board, accord- ing to their several ratings. This mode of division has oc casionally been acted on in England, as in the cases of the Earl Ore;/ and the Martha, 3 Hagg. 364, 436. J. N. EiTCHiE, for salvors. .Tas. McDonald, for owners. THE AURA. (Delivered March ioth, 1870.) The master of this vessel, who was also a part-owner, instituted pro- ceedings in the Court of Vice-Admiralty against the ship to recover a balance of wages due him. Held, that the Court could entertain his claim, and tha' the fact of his being a part-owner did not affect his right to recover. The plaintiff had accepted a promissory note from three of his co-owners for the amount he now claimed, the note never having been paid. Held, that this did not take away his lien upon the .ship, although sold to, and paid for by, a third party, in ignorance of the debt. I shall deliver a short judgment in this case, more for the sake of marking and distinguishing the authorities than of an elaborate inquiry. The origin of the master's right to resort to the Court of Admiralty for his wages is traced by Dr. LushiiKjton in the Caledonia, Swabey, 19. Tlie first rhan-o of the law was made by the 7 & 8 Vic. cap. 112, now repealed, and which did not extend, except in a qualified sense, under the Gist section, to the Colonics. An obvious defect in it was remedied by the lOlst section of the Merchant's Shipping Act, 1854, which docs not apply to this case under the lOlHh section, the Aura be- ing within the jurisdiction of its own government. Several of the cases, therefore, cited at the argument are of no avail. The jurisdiction of this Court is confirmed by the 26 Vic. cap. 24, extending to the Colonies, for masters' wages, and for his disbursements on account of the ship. THK AUUA. 55 th;:* the fact of his Tlif ri«ht of the raasta- to recover in this Court, and to enforce Ins lien against the ship, came hofore rae in the Ld Her Be, in April 1868, where one of the libellants was a part-owner, being in fact a beneficial owner, not on the register, and I upheld the claim on the authority of the em^a 17 L T R. 619. Then the : oint came for the first '™? ^fr.r. *^' "^^^^ ^""'•* «^ Admiralty, and the Act of 1861 24 Vic cap. 10, sec. 10, was reviewed, and Sir IMert Ihlhmon held that a master, being also part-owner, had not, by reason of his liabilities as such, forfeited his ri-hts as master to proceed against the ship. The next point in this case is the fact of the plaintiff having accepted a promissory note from three of his co owners for the balance which he now claims and which has not been paid. The Simluh, 15 Jurist, 865 though proceod- nig on the 7 k 8 Vic. cap. 112, throws some light on this. in that case, there had been a settlement, and bills of ex- change given in fulfilment of that settlement. The acceptor became banla-upt, and the master proved on the bills against the estate, yet the Court held that neither the account current, nor the acceptances precluded his recovery No hen IS more favoured in law than the lien for seaman's wages, and wages due to the master stand upon the same footing Against the ship and freight, and against their proceeds mto whosesoever hands they may come, and al- though the ship may have been conveyed to a bona fide pur- chaser without notice, the seaman's claim for wa-es has Ijnority over all other claims. In the strong language of the law, It IS a sacred lien ; and as long as a plank oi the vessel, or a fragment of the freight remains, the mariner is entitled to It, m preference to all other persons as a secur- ity. It akes precedence of bottomry, though not of sal- vage and may be enforced even against a title resting on or auure. 1 Conkling. 312. Th. .ame principle is iflus! rated by two cases in the Irish Admiralty, noted in lu L. i. It. iN b 913; the first, the Harrutt and May, when the ;vuges of the master of a foreign ship were de^ed out of e sale of the vessel at Cork, in priority to the shipsmith-s ^I'tim for repairs. The second, tlie Sampson, y;L^ the 1: J' W ! ' i I m VrCK-ADMIHALTY COfliT. II waRGH of mntiU'V as well as civw were decreed to l)o paid out of proceeds of sale in priority to material men, with costs of suit, in tlie linnial. 1 Swal.fy, -ICH, Jlenderscm, the iiniHter. recovered jud^'Mi.nt for the balance of his wages JWiinst his owner, and tiled his claim in hankruptcy a-^ainst Ins estate, yet he was allowed to proceed against the ship in the hands of innocent i)urchasers. Tin wa^^es were justly due, and he was not l.arred by the Statute of Limitations, The judgment lie had taken having proved unproductive, it was lield that he had a right to resort to his other security. in mil. In the I'liin,,, 1 Lush. l:5(i, the Court said "that "it never remits seamen to the douhtful chance of recovering; against an embarrassed owner : it always upheld their lieu for wages upon the body of the ship, "and with peculiar tenacity." The (Viir/tai,,, I Urown & Lushington, 212 Wi'ut still further, and held that a release by the master of his personal claim against the ship-owner "for wages does not operate as a release of the ship from his lien for such wages. 'J'he William Mmini, cited from 2 Haggard, 136, as it was at the argument here, is an exceptional case, where the seaman, being olTered the money, preferred a bill of exchange for his own accommodatio". << He made his election," said the judge, " and must stand by the risk." In the Xjimph, 1 Swabey, Hfi, J)r. LHHhi,ujton observed : "When a man purchases a ship, he takes it with all the ha- bilities that attacli to it in law. If the ship is sold, she is al- ways subject to any demand for seaman's wages for any period of time (that is for years) during which the law allows a suit to be brought. She is subject to a bottomry bond, and to a demand for salvage ; therefore, it becomea'the duty of those who purchase ships to take care with wliom they deal." The only question, therefore, on this note is payment. The note is not payment, and, under the evidence, it could not be recovered from any of the three parties who made it. It is not alleged that there has been unreasonable delay or negligence on the the part of the promovent. Had the ac- count produced been a fuial settlement, charging his wages, on the one hand, and crediting a sum in excess of the debits,' on the other, this Court, in the absence of fraud or mistake! TiiK (;.\NTKRntrRv. 57 would hav(. hol.I I.„n houn.l l.y it. Hut it luts nono of th. I'lomon H a Inml sottlomont, a.wl it ,s a miHfortuno. ....r- Laps that tho ahs6, which w^o ild have be n considered by salvors here as gross injustice, and wou d lK^^e had a tendency to discourage eSortion. Tn dpr^H.t cases m this Court, wiiile deprecating the principle of any THE CANTERBURY. 61 fixed rate, I have awarded as much as one-half and two- fifths, acconlmg to the vahie of the property, and the defiroe of merit There are numerous cases in England, too, where- as much has heen given for saving derelict property, h, the Esperan,„, 1 Dods. 49, the net proceeds of the ship, cargo, and freight amounted to $12,000, and Sir Wm. Scot aHowed a moiety. In the Blauhnhall, 1 Dods. 421 he aftrmed the same ratio, and remarked, "that in ixin. a proportion of the value the Court is in the habit of givin° a smaller proportion where the property is large, and a hi<^her pi-portion where the value is small, and for this obviot.. reason : that in property of small value, a small proportion' ^^ould not ho d out sufficient encouragement, ,-,ereas. m cases considerable value, a smaHer proportion would afford no inadequate compensation." I„ the Fortma, 4 Kob Vy^ ^/oT' ^'"if "* J;^.'^^^™-'^^'^ two-fifths, the value being $1,900 In the Elhotta, 2 Dods. 75, a case approaching to derehct, and of a highly meritorious character! he gave one- half In the Effort, already cited, Sir John XicoU also gave one-half, the value being $1,600, and in the Watt, 2 W Kob 70, a moiety was decreed by Dr. L„,hinfjton. In the /,uv,' Moore's P. C. C. 189, when the Vice-Admiraltv cLrt If the Bahamas had awarded seventy-six per cent, in kind for a most meritorious salvage service, attended with loss of he, It was reduced upon appeal to 50 per cent, upon the who e cargo, stores and materials, and Dr. Lmhington re- marked that no case could be found in which the Hi«h tour of Admiralty had awarded to salvors more than a mo.ety o the proceeds. The Court at the same time eK- pressed their reluctance to interfere with the decree of a Vice-Admiralty Court in what is, generally speaking, a mat- er of discretion, and gave no costs of appeal on either side In tins case, the counsel of the appellants. Dr. Ardrar's and Dr. Spuds, both well-known names, observed that the usual proportion given is from one-third to on.. -fourth- and a modern writer says that in derelict cases the amount commonly allowed has been one-third or one-fourth whi!.- m some oases a fifth, sixth, or tenth only has been awarded. In the United States, the Supreme Court, in the case of ill 1 i » i_ 1)1 62 VICE-ADMIRALTY COCRT. the nimrrmi, 2 Crancli. 178, reduced the rate of comilensa- tion awarded in the Court helow from threo-lifths to two- fifths. In the Leach, Best. 1{. 200, one-third was siven, and in Spnnwr's case, 2 Strong, 195, one-half. My atten' tion was invited at the hearing to 1 Parsons on Insurance, 611, note 8, citinfr numerous other cases, and drawing the inference that it may l>e taken as theprevaihng disposition of Admiralty Courts, or, as it has heen said, as the general sense of the maritime law, that salvage on derelict should not, in ordinary cases, go heyond a third, and almost never above one-half. This rule of proportion I do not altogether accept. That depends upon value as well as upon danger to life and pro- perty, and it is obvious that there is no rule to restrain the sound discretion of the Court looking to all the circum- stances of each individual case as it arises, and awardin" accordingly. Here is unquestionably a verv meritorioul case. The five men who were the actual salvors ran a con- siderable risk. Taking charge of a water-logged ship stripped of her sails, and with a crew whollv inadequate to navigate her, had they encountered a gale, tliev might not have foundered, indeed, with a cargo of timber, but they would have been exposed to privation and peril. Tliev have saved the ship and cargo, which their natural rruar- dians had abandoned as lost. The master of the salving ship, too, did a gallant, and, as tar as his owners were con- cerned, a hazardous thing. Had he been lost on his voyage liome, the insurance might have been seriously affected by the voluntary reduction of his crew from twelve to seven men ; and that reduction imperilled the safety of the seven who remained. Taking the appraised value, therefore at •f 10,000, the Court, finding that this sum is subject to' no reductions, awards the sum of $8,000 as salvage, 'to be paid into the Registry, with costs of suit. The principles upon which salvage is apportioned have been often before me They will be found in Williams and Bruce's A.^miraltv Practice, 132, and 1 Conkling's United States Admi- ralty, 2 ed. Sr,4. A share is always assigned to the salv- ing ship, sometimes as much as one-half, but which in this THK CAirBUlDGE. g3 case I shall settle at two-fifths. The ioaster is generally allowed much mo^-e than the mate, but. when the mate has ehieriy contributed to the success of the service, the shar-^ allotted to him will be as large or larger than the share allotted to the master. Where some of the crew of a ship at sea, with the concurrence of the others (those who do not concur receive nothing), kave their ship, a.ul go to the as- sistance of another ship in di.str <, it has been the rule of the Admiralty Court, from time immemorial, to allow 'hose who remain on board the salving ship to be considered as co-salvors. Dr. Pmson.^ rather attacks this allowance, and says (foho 599,1, that it is not always given, but the prmci- pie IS as old as Holy Writ ; for it is there stated that thev who continued in their tents divi, colony of France, to Newfoundland ^ij'"" '.''''l' '".^l^^ ^ '^ Cape Breton, the said Aspy Bay not h . , , '^'P^ '^^>' '" 'he .siand of ^i.y from stress of weather and h'," ^T, "^ """■^' ^^'"^"•'t "«'^«- cf which goods, U.e ;:• : ;t„ to'lot' ha^'°°'\°" '"'''■■ ^"'"'^ no duty at any time paid thereon ''''" '^'"' '^"'l'^^^' «"'-> Held, that, under sec. 9 of t.r Vic ran a .^ had incurred the full penalty of^»8:o',^im^;;sed by :hTtC;:io:^ '"^ '"'''' Do^.^ir^f;r'' "^V^^^^'^ ^^ P--'ties. under the uom men Act, 81 Vic. cup. G. sec. !l and sub-see. '2 thereof The hbel, responsive allegations a,.d proofs were duly taken the case fully argued, and the learned iudge // hvered an oral judgment thereon, tho substance'of wh Ih .a. aceuratelv reported in one of the local newspapers t enthlld "a'"a"?"" ^"'""^'* ""'^^^ 'h^ «l«t ^^ic. cap. 6 entitled An Act respecting the Customs," asking a decree fr certain penalties incurred for the violation of'said TeT The hbel begins in the usual way-pleads "the B itiSh ^ordi America Act of 1867," cap 5 d— if such vessel is of h'ss vahu; than $800; and if the vessel is worth moro tlian that sum, it may he seized, and the master or person in eliarge thereof sliall inciu' a penalty of $800, and the vessel may bo detained until Huch penalty be paid or security given for the payment thereof." l^y this section it is provided, 1st: That no goods Hhall be imported into Canada, whether dutiable or not, except into some port or place of entry where a custom house is lawfully established. That is one branch. The other in : * * * Or if any vessel with dutiable goods on board enters any place other than a port of entry, unless from stress of weather or other unavoidable cause, such goodn (except those belonging to an innocent owner) sliall bo for- feited, together with the vessel in which the same wereim- ^lorted, if she be of less value than $800, and if of greater, then a fine of $800 shall be imposed. There can be no doubt as to the meaning jf the lav. It was argued at the h(>aring, by ^fr. McDonald, thai; as tliti goods were not intended to be landed at Aspy Uay, hut were shipped for Bay of Islands, that they were not duti- able goods. But the first part of the sec«-ion places goods dutiable and those not dutiable in the same csitegory, and therefore the argument urged, and the distinction raised, fall to the ground. It was likewise contended that imported meant brought into the country for use. According to Webster, to import is " to bring from a foreign country, or jurisdiction, or from another state into one's own country, jurisdiction or state." According to Worcester, it is " to bring or carry into a country from abroad." Thus it may be said that a l)ringing from San Francisco to Massachusetts is not an importation. But a bringing, or carrying, as in this case, from abroad— from St. Pierre, a foreign country— into Asi>y Bay, in our own country, is clearly an iTi!]>ortation, and on this point the construction contended for fails. Is THK MINNIE. C><) 1 if of grcator, Let Ufl now enquire what are tl,e facts of tlio case as *l.c.wn in ovi.lenco. Tlic Minuie My and voluntarilv ontors Aspy J3ay, n,.t a port or place of entry. There was .... stress, no unavoidable cause, nor a pretence of ,.ither J he evidence for the ierre u.th goods on hoard. The master's evidenc'e as to ,„autitv agrees with the clearance. The two of the crew examin I out .me half .H. McMaster, one of Tory's men. who hoarded th. nnnr, says :-'' One of her hatches was off and he looked into the hold and saw sevc.-al barrels and a case like a gin caHcand a tea box. and that the hold was in a very confused Hta e and looked as if it had been overhauled a good dc'a und the articles thrown about." Here, then, the character <.i the entry and the circumstances under which it occurre.l are plainly established. An entry by the Min.ie into a rlac(. not a port or place of entry with dutiable goods on '-.rd IB proven. The voyage itself is in the last degree suspicious The attempt made to evade the cutter at Aspv 3ay. the frequent intercourse with the shore by means of bouts, several of them passing and repassing ; the absence ..e ot nng in the evidence, .s well as in the pleadings, to .bow that the voyage to Iky of Islands was a real onrand .nt a sham, a pretext under con.- of which to enter Aspv i'.y for il egal purposes; the proof of dutiable goods on l-oard. all these conspire in making up a strong,.'.. ;,^! v.|He which Campb,.ll was bound to meet amf disp^ve' I'^'lHrnlen of proof was entirely on the defendant. It t r Court tT ; t' " '' ""'^''^ "'^^'^•^'^^' '^ '^'^'^ -t-fi-i lie Court that the voyage was an honest one-to free it aTv r "T'^'"'". '*^'"'^"^^' ^' '^- ^^ ^^^^^P'^^'" ^vent into mter 9' wf ' '-'J^'f"''''^' 1""-P«««. ^-l^y ^licl he fear the M tu? ^M,y ,,a he strive to escape from the cutter's iH.at? Tory, [r, ^^g ^.^idence J eft the Mi I me, we rowed olT to meet her. As says : " After ine white boat t,i '■ we approached 70 VICE-ADMIUALTY COfRT. '4 I 1 iy [' li.:'r sli' l- t off the wiml, and tried to run from us ; hailed her twice, wlien tlic crow on board gave her, her main sheet, and kei)t further off the wind." O'Connor, one of Tory's boat's crew at the time, saj's :~ " When Tory called out they bore away, and let out the main sheet to run - ; • ' m them." McMaster, another of the crew, Bii\ri: •' She bore away and ran off before the wind." And Graham says : " She eased the main sheet and ran off." This is not contradicted ; there is not even an (ittempt to explain it by the defence ; and this, coupled with the suspicious character of the voyage, tells seriously against Campbell. 1 have imder my hand a case throwing a strong light on this. It is that of the Ebuinor, Hall, reported in Edward's Admiralty Reports, vol. 1, p. I3r>, which was an action for a breach of the navigation laws, tried in our Vice- Admiralty Court i; 1809. This was founded on a violation of sec. 2, 7 : nd H Wm. 111. cap. 22, whic'. p.s far as re- garded the entry of vessels, was in spirit, if not in terms, much the same as section 9, above quoted. In this case the decree pronounced against the vessel was appealed iVoni, and the extracts which follow are from the judgment de- livered by Sir William Scott affirming the judgment below. 1 say :— " 1 come now to consider that which is the ac- tual, though by no means the only, ground upon which this sentence is rectly to be sustained, and which has been, ai. justly, scribed by the counsel for the claimant as a matter of great imprudence— I mean the entrance of the vessel into the port of Halifax. It has been said that evtu upon the supp sition that this is to be taken as an alien ship, yet whatever mny have been the imprudences of conduct on the part of Hit owner, she would be entitled to the rights of 1 ospitality if driven into a British port in distress; an" -ta inly if the distress was real, whether Hall is a Bri, sn i;t or not, and whatever mn y be the character att.u ued to ilie ship, she would be entitled to that benefit. Real and irresistible distress must be at all timed a sufficient passport for human beings nnd: r any such ap- plication of human laws. But if a party is a false mendi- THE MINNIR. yj cant, if 1)0 brings into a port a nliip or cargo under a prc- tcnc e which does not exist, tlio holding out such a falwe cause, fixes him with a fraudulent purpose. If he did not come in for the only purpose which the law tolerates he has really come in for one which it prohibits, " that of carry- ing on an interdicted coinmerce in whole or in part." It i'-^ 1 presume, an universal rule that the more act of comin ' into port, though without breaking bulk, is print.i fadr e^•;- .Unce of an importation. At the same time this presump- tion may be lu butted, but it lii's on the party to assign tlie other cause, and if the cause assi-nedtiirnsout tobe fafse the l.rst presumption necessarily takes place, and the fraudu- lent importation is fastened doAvn on him. Wliat constitutes an " importation " is thus defined by the same eminent Judge farther on in his judgment. He says And it has been decided over and ov( i- a^ain that iu order to constitute an importation, it is not necessary that vesselsshouldcoraetoawharf." Upon the factof importation, the., lore continues Sir JVillian, Vnunr,, there can be no .ioubt._ Ihe mere fact of coming into port with goods on . >ard 18 pnnuin,ri, evidence of animp.n-tation, and is, con- ...lientlv, clearly a violation of sec. 9. How Campbell met It has ,■ oady been adverted to. Ti.is law has been charac- terizes an exceedingly oppressive and unjust enactment, iut a careful comparison of our Customs Act with the Eng- lish Customs Law will satisfy every dispassionate enquirer liat the former is not more arbitrary or stringent than the latter. It must be recollected that Custom House laws are framed to defeat the infinitely varied, unscrupulous and ingeniou- (lovices t^^ defraud the revenue of the country. In no other Bvstem 18 the party accused obliged to prove bis innocence -the weight of proof is on him, reversing one of the first principles of criminal law. Why have the Legislature^ of (Treat Britain, of the United States, and of the Dominion 'ilike sanctioned this departure from the more humane, and Hs it would c<3n»n ni- i\.~ 11-- '11 1 .1 1 o r^ ' ""■ " "' '" ' ^°^ "^"^' leasonable 'le / a rom a necessity, demonstrated by experience— the .f III !'!• VICE-ADMIRALTT COURT. ''*.': i . li' f- ii Ml;: i'"i ■) : , ■ ■iij U^^i, 1 ^'i( 1 necessity ot i)rotecting the fair trader and counter-worklnj^ and punishing the smuggler. Henco it is that by section 47 of the English Consohdatod Cubtoms Act of 1853 (Ilumers Law of the Customs), every vessel entering inwards is compelled, under certain penal- ties, to observe four regulations. Ist — She shall come as quickly up to the proper place of mooring or unloading as the nature of the port will admit. 2nd — She must bring to at the stations ai)pointed for the boarding of ships by officers of customs. 3rd — She must not remove from such place without per- mission of an officer of customs. •Itli — And suitable accommodation on board must be made for the officer of customs. By section 153, no deviation from the actual voyage is permitted to a coasting vessel. And section 230 prohibits all vessels, foreign and domestic, from entering any port or l>lace, other than a port or place of entry. It would indeed be difficult to frame a law more exactiu'^ and yet more necessary than this. There are long stretches of coast, particularly to the eastward of Halifax, where there is not a custom house or customs officer established. If entries into the numerous harbours, not ports of entry, that t'xist between Halifax and Canso, were permitted without restriction, there can be no doubt that a serious diminution of our customs revenue would ensue, and much injury be intlicted on dealers who keep themselves within the limits of the law. Situated as we are, almost surrounded by the -en, with abundant harbours accessible for the most part at all seasons of the year, and few custom houses along our coast, such a law may well be deemed indispensable for the efficient protection of the revenue. Section 9 is derived for the most part from the Canadian Act 10 and 11 Vict. cap. 31, Consol. Stat, page 215— tliat part of section 9 beginning with the words " or if any vessel," and ending with "unavoidable cause" seems to have been adopted for the first time in cap. G, aforesaid. As for the wisdom of such a law it is not for the Court to speak. The duty of the Court is simply to interpret and to i J . THE MINNIE. 73 inter-workin;; give effect to the law as it exists, not as it may thiukit ou"l,t to be. " As to the landing of aoo.ls from the Minnie, McMastor Sullivan and Mills swear positively and distinctly, and cor- roborate each other with great particularity, that they saw several boats go alongside tlip Minnir from the shore, and re- turn agani to the shore shortly after, and that hovcs re- sembhng liquor cases and soap boxes were taken from those boats on touching the shore, and carrie.l— one man to each box-on m.n's shoulders from the shore. One of these wit- nesses, Sulhvan, who at the time was using a spy-rrlass eays he saw the compartments for bottles in one of the boxes earned on shore. The evidence of Campbell and his men as positively denies this. They swear that no goods were landed, or packages either, except the passengers's chest of the contents of which they were ignorant. The captain said he had no goods or liquors on board for his own, his family or neighbour's use, but one of his crow proves that a case of hquor belonging to the captain was broken into and con- sumed on the voyage, and that each of the crew had several bottles of hquor of his own. Campbell, too, admitted that he had sometimes on voyages of this kind brought -oods home for his own use. It would, indeed, be a unique and extraordinary voyage if he brought nothing home on the voyage in question. His Lordship, in pronouncing this judgment, and that which he was a))out to pronounce in the case of the Wamp,,. tuck, both of which bore hard on the interest of the defen- dants, was sensible that much interest would be excited and the laws, under which he acted, and the Court itself while givnig them eltect, might be arraigned. But that and like considunitimis could not relieve the Court of its dutv A Court was not worthy of th'. name which would refuse to carry out the law with fearles. independence. Disappointed an, guilty parties were apt to throw upon Judges the odium that belonged to their own unfair proceedings. On this sub- ject the language of Sir W. Scott in the case of the Eleanor Applied. f li i I 74 VICE-ADMIRALTY COl'RT, " I have thus entered into these facts more minutely, because I am not ignorant that this case has been made the sul)ject of an outcry, in which the Judge of the Court below and the officers of the Crown, have been treated with suffi- cient freedom, I must advertise parties that if they feel aggrieved by the sentence of a Court of Justice this is not the species of remedy which the law has provided for them 'ilie true remeily is to be pursued by a regular course of appeals in the tril)unals appointed to correct errors, and not by partial and inflamed complaints against persons in judi- cial situations, preferred behind their backs, and in quarters where such complaints cannot be judicially examined. \\ hat would be unfair towards individuals is no less so when directed against Courts of Justice. I do not, however, sit here to decide upon the character and conduct of the Judge and Crown officers at Halifax, but to determine the legal merits of the case. From the conclusions I have drawn from the evidence, it will be inferred that I approve of the sentence which has been given. ]\Ir. Hall's intentions may be honest, but they are only known to himself. I can judge of them only from facts, and such facts as appear in the evi- dence which is furnished, and, judging from that evidence. I do without hesitation affirm the sentence appealed from." His Lordship then added : Campbell's intentions may have been honest, but he has failed to satisfy the Court by evidence that they were. His entry, as has been alreadr said, was entirely without stress or unavoidable cause, which are the only legal excuses for entering a place not a port or place of entry lawfully constituted as such. There is every reason to believe— alike, from his conduct at Aspy i3ay in presence of the cutter, and from his silence in re- gard to what was the character of the alleged voyage to Bay of Islands— that the latter was but a pretext, by cover of which to enter Aspy Bay for illegal purposes. On the whole evidence, it was added by the Court, it h clear that an illegal entry was made, and that dutiable goods were landed at Aspy Bay, and the defendant is therefore pronounced against, under the 6tb article of the libel, for '•'*J THE WAMPATUCK. 76 the penalty of $800, imposed by section 9, with costs of suit, but acquitted on all other articles of the libel. Blanchard, Q.C, for the Government. McDonald, Q.C, for the vessel. ■ ■ J *THE WAMPATUCK. (Delivered 6th December, 1870.) Violation of Dominion Fishery Acts. An American fishing schooner was seized by one of the cutters appointed by the Dominion Government for the protection of their fisheries for being engaged in catching fish within the limits reserved by treaty and bv the Dommion Fishery Acts. The evidence on the part of the prosecution w as to the effect that, when boarded by the cutter, there were fish freshly caught upon the schooner's deck, and every indication of the crew havine been very recently engaged in the management of their lines. The only evidence offered for the defence was that the fish had been caught merely for purposes of food. HM. that the vessel should be forfeited, with all her tackle, stores and cargo. This is an American fishing vessel of 4<3 tons burthen, owned at Plymouth, in the State of Massachusetts, and sail- ing under a fishing license, issued by the collector there on the 25th of April last. On the 27th of June she was seized byCapt. Tory of the Dominion cutter Mi 7?.. for a violation of the Dominion Fishery Acts of 1868 and 18^0, and litr nationality and character appear from her enrolment and other papers delivered up by her master, and on file in this C ''living been open to the inspec- tion onhe defendants and their counsel since the beginnhig 82 VlCK-ADMIltALTV COllIT. of Sq)toml)cr, it is very sijjtuifioant tliiit tlioy in'odiiccd no wituL'SH in reply, jind that it stood at tlin lioarin,'^' wliollv uncontradictod. As neither M'ant of ahihty, nor of zeai, can be imi)uted to the coinisel, tlie necessary infeiusneo is, that the facts testified to are sul)stantially true. Two or three arguments were nrifed at the henrin;;, which it is incumbent on me to notice. It was said tliat there could ])e ut) forfeiture, unlesH an intent to violate the law were clearly sliowu on the part of tlie prosecution. The answer is, that tlie intent was shown by the admissions in proof, and that, independently of thi' admissions, where acts are illegal, the intent is to Iw gathered from the iicts themselves. It was next said that the captain of the If his employment, I wo:^";:;^^^^^^^ T^f; '.n.W the Dominion Acts, the vess it^ ^^Za^tu' uuefon, and the proceeds to be distribute 1 .] " 1— ds of the cargo, as directed trt:;;^"'"- J^MNciiAUD, (^.C, for government. • '^^''J)»NALD, g.C. for owners. THE A. H. WANSOX. (1>1;LUEREI) FeBRUARV lOTIf, 1871.) \roi.ATiox OF Dominion- Fishkrv Acts a Aid, .),. nrm-Hi,. >, '"^"'^R^ ACTS.— A case of verv ^Imi'-ir mt.,r :•]? . ( : i ' 84 VICE-ADMIRALTY COl'BT. position for fishing, that the crew were seen casting and hauling in their lines and throwing out bait, and that when boarded there were several lines over the rail, fresh bait about the deck, and otht • signs of recent operations. Helil, that there was sufficient t idence to warr.mt a forfeiture of the vessel, etc. This is a schooner of 03 tons burthen, belonging to Gloucester, in the State of Massachusetts, saihng under an enrohnent of 4th of June, 18G8, and a fishing license of 27th June last. On the 3rd Sept., she was seized by Capt. Carmichael, of the Sn-cfpstalccs, one of the Dominion cut- ters, for fishing within three marine miles of the coast of Cape Breton, at Broad Cove, and was libelled therefor in the usual form on the 17th. On the 19th her owners put in their responsive allegation, and at the same time hf-r master and four of her crew were examined thereon. For the prosecution, there were examined b> the 30th Sept., the captain, the fitrst officer, three of the other officers, and ten of the crew of the Sirecpstalics ; and on the 21st and 22nd October, there wei-e examined under commission at Canso, the master and two of the seamen of the Dit-ikij Lake, a iishing schooner belonging to Margaree. All the witnesses on both sides in these 23 depositions were subjected to cross-examination, and the evidence, as was perhaps to bo expected, is conflicting. The case, as it will be perceived, was ready for trial by the end of October ; but the intervening terms of the Supreme Court, and the incessant engagements both of Judge and Counsel, rendered it impossible to bring it on for hearing until the 4tli inst. The legal principles applicable to the case having been fully discussed in that of the Wampatuck, the argument was confined to the effect of the evidence ; and the decision will turn solely on qties- tions of fact. On the 2nd September, the cutter, a sailing vessel, and scarcely distinguishable from the usual class of fishing craft, arrived at Broad Cove about ten o'clock at night, and next morning, a little before five o'clock, according to Cap- tain Carmichael, who is confirmed in all essential particu- lars by his officers and crew, he discovered a number of THK A. II, WAN80N. 85 forfeiture of the vessels, some say as many as 70, fishing cln.se to them and hove to under their mainsails. Sou.o of tliose were Ameri - can, and Evans, the hoatswain, says he saw the captain of the American vessel nearest them stand on the house an on her deck distinctly, casting their uies and throwing bait ; he also looked at her throu-h his spyglass, and described certain marks on her to his inen, that they might easily distinguish and board her H.' then steered in the direction of the A. 11. W,umm, and when about fifty yards of her, hoisted his colours, and fired a blank cartridge. The vessel then showed American colours, and Nickerson, the first officer, and boat's crew went on board. ' Nickerson testifies that he also distinctly saw the men casting and hauling in their lines, and throwing bait, until the cutter was within three hundred ^•ards of them He observed them at this work for abmit fifteen minutes. After going on deck, he observed four lines over the rail in he water, on the starboard side; he saw several of the hooks baited with fresh bait ; he saw the bait on the lines in the water, after being hauled in ; he also saw scales of resh mackerel on the deck, and over the inside of the strike barrels then on the deck ; also two bait-boxes, with fresh bait in them-pogies and clams. He then signalled for the captain of the cutter, who came on board, and asked Bome of the crew why they did not get under weigh when they saw his vessel, having had plenty of time to get off home of them replied that they did not see him ; they were no thinking of cutters, only of steamers, having arrived only the evening before. The vessel was then in 17 fathoms u -.vater, by the lead, less than two miles from Cape Breton i>liore, and Sea Wolf Island bearing about north by the # ^•"^. ^^.^A^ IMAGE EVALUATION TEST TARGET (MT-S) k A {./ ,, ^ A C/a 86 VICE-ADMinALTY COI'KT. compass. Wlion seized, she was drifting;, witli mainsail guyed off, in the direction of the Sea Wolf Ishmd, forsin^ a triHe aliead. It wouhl bo a waste of time to go through the deposi- tions of the otlier oflicevs and crew of the cutter, wliich nvr more or less allirmative of, and none of tliem contradict, the al)ove. .Tones says he saw one man forward of tin main rigging throw a scoop of ))ait into the water. Tlii.- is confirmed by five otlicrs— Grant, Langlcy, Cleas. Evan^ and ^Tennesy. ]{ose says that the crew ceased casting tlioir line;^ about a minute l)efore the Sir<'ri»tf(il,;'s rounded to. The A. H. JVaxsoii was then inside of two miles from Capo Breton shore, and drifting in, in a north-westerly course. From the direction in which the cutter came, veiling her approach, and with the Nova Scotia vessels interven- ing, none of the persons on l)oard saw the fish actually taken and hauled up, and the further evidence of tlie throo men on board the Diixb/ Lab- becomes very material. Thos. E. Nickorson says they wore about 100 yards from the A. 11. Witiisoii, lying between her and the shore. H(> did not see any lish taken or caught by her, he could not see the men hauling any lines or throwing bait from the way the sails hid them, but in answer to the 11th question, he says that he saw the cutter approaching— she approached the A. II. Witimm from the south-west, and the witness observed her men standing at the rail, and saw them take their strike-barrels to leeward, and throw round mackerel overboard, and when the Sirecpstahrs was rounding to, they hauled in their main sheet, and after the Swi'.rj)sti<>ii was lying to under mainsail and foresail ; they appeared to be fishing ; he did not see them catch any ; as the Sitwcj)- fitdh's approached, he ol)gerved them take their strike bar- rels to leeward, and throw the mackerel overboard, he could not see any one throwing bait ; but saw the tole of bait in the water, as is usual when bait is throwing, in order to raise mackerel. THE A. II. WANSON. 87 By the ninth cross interrogatory he was asked 'would not any vessel drifting along use the same sails and appear in the same position as the A. 11. m„iHo,i !■ Is there anything particular in the use of tlieir sails hy vessels employed in mackerel fishing more than in any other vessels?' To which his answer is: 'I cannot sav— never saw any vessel in that position unless she was"^ tishinr'. There is quite ,i difference.' He had previously said that lie had heen uvo years engaged in the hook and line mackerel fishing in the Gulf of St. Lawrence, and was quite familiar with the way in which the fish are caught. The remaining witness, Thomas Roberts, who was de- Hi-ribed at the liearing as master, says the A. H. Wansoa was lying nortli-west, and about 200 yards from the Dusky Lake, they (that is the men of .'1. //. Wnnsnn) catching mackerel, lying head to tlie southwnrd, under her main" sail. They were fishing, and the witness saw them catch fish— mackerel. She was inside of three miles. He further says :— ' I observed lines on starboard side. I saw the men hauling the lines-sixteen or seventeen men.. Tiiey hauled them in with fish on them, and slatted them off, and threw them out again. . . . I sawthemthrow- mg bait in the usual manner for attracting mackerel.' In his thirteenth answer, he says : ' I can positively swear that they were catching mackerel, and were within three marine miles of the shores of Cape Breton.' When the Swvepstakrx ran down upon thom from the south-west they gave lip fishing, and carried their strike barrels to leeward, and threw the fish overboard." In answer to the eleventli aud thirteenth cross-interrogatories, he says : * I saw th-m heaving bait, casting lines, catching mackerel, and dump- mg them overboard, and coiling un cheir hues. They were Klattmg fish off their lines after hauling them in.' Let us consider the effect of this mass of evidence, which I have gone into with a particularity very unusual with me, and only to be justified by the nature of the charge, and the necessity of vindicating every judgment that is pronounced. Here is a fieet of vGsselsrNova Scotian and American, on a fine clear morning, busily Uf. 88 VICE-ADMIKALTY COURT. enffagcHi in fmhiiig, the mackerel rising al! around, unci no hostile critter supposed to be near. The Ameri- cans think little of the prohibition wliich the new and more vigorous policy of the Doaiinion has im- posed. They are impatient of the exclusive right claimed by the Canadian people on the principles of international law,, and the faith of treaties; and violate it without scruple wluaicver the opportunity occurs. Hence the tagorneHs, and the openness too, with which these Ameri- can ashornnni are plying their task on this particular morning. What should we say, if we were told that one vessel only was virtuous or strong enough to resist the teraptatioiiH, and to hold their hands from touching their neighbour's goods ? The captain of the Wawjmtucl", when caught in the act, excused himself, on the ground, that his crew were ho crazy to catch fish, that they would not stop. But, here on the decks of the A. IT. Waiison was a model crew, who would not catch mackerel within the three miles, though Kwarniin.; around them. That is the sole defence' in this oahc. They admit that they were within three miles of the .shore— that they were lying guyed oft' under main-sail, and with their anchor up, heading south-south east towards the shore in the very position for fishing— they were not aware of the arrival of the cutter— and yet they would have this (A)urt believe tha* ; were not" fishing. It would be a great stretch of creo , , to believe this hi the absence of evidence to the contrary. But with the mass of testimony just recited, the eight or ten men upon the rail, the easting and hauling in of the mackerel lines— the throw- ing of bait -the emptying of the strike barrels on the ap- proach of th(> cutter, and the clear and positive evidence of three disinterest(>d witnesses from the DnsJci/ L'lke— what is to be said of such a defence ? In the face of it all, tlie master and four of the crew of the A. II. lV(t)iHoii—i\\e out of the 1() or 17 men said to bo on board, have sworn that said schooner, or the captain or crew thereof, did not fish, or prepare to llsli, within three marine miles of the coasts, bays, harbours, or creeks of Canada, or of that part of the coasts and bayn thereof k ;own as Bruadcove and aa Soa- THE A. J. FRANKLIN. 89 wolf Island, on the north-west coast of Capo Breton, on the ;kcl (lay of Sei)tcmi)er last, or at any other time during saiu, her tackle, apparel, furniture, stores and car-o as forfeited under the Dominion Acts, and the same havin-' been bailed at the appraised value of .$3,5()(J, I direct thai the amount shall be paid into court, to be distributed as directed by the Act of 1868. I pronounce also for the costs secured by the first bond, on the defence being put in. Bi-ANCHARn. Q.C., for government. Shannon, Q.C, for owners. f! THE A. J. FBANKLIX. (Demveked ioth Februakv, 1S71.) Violation OK the Dominion Fi.shkkv A, rs.-The ve-sel proceeded .-•Sa.n.t in this case was found by one of the cutters in the mi.lst of a cTn,t , ?"• ''''.^'" •'^^P^^''^'-'^''^'' '™''^ -'' -crh,u!e.i, but afterwards permitted to go: but, on further information being received, was seized 00 vicI';-.M):m!I!M,tv coriiT. on a snl)S"(iiicnt day. in .mi adjoininK port, 'fhe only material evidence a-:ainst her was tliat of the crews of two other fishinR schooners, who teslitied that they had seen hnes anS, and suilin^;- under a iisliinj,' lieeuKe of •istii Jaiuiaiy. 1H7(I. Attaeiied to lier papers arc alsr> printed copies of the Treasury Circulars issued at Wasliiu;^'- ton on tlie ItJtli .May and '.»th Juni'la.st, apprising' tiie owii- ers and niastors of jisliin-j; vessels of the tirst article of the Treaty of ISls, of tlie Dominion Aets of IKOH and 1870, and of the equipment of Canadian saiiin,^' vessels for the enforce- ment thereof. Tiiis vessel— the A. ./. /•>,(///,//,/— liavim,' Iwen warned by Captain 'i'ory, of the culter Iiln /•;., a,i,'ainst iishin;j; within the prescribed limits, and bavinj:; been found on the 11th October in the midst of a macktaxd fleet at Inroad Cove, was overhauled and visited by the cutter, and was then let -j;.) ; but, on further information that she had been lishinjj; on that day, she was seized on the loth October, in the Strait of Canso, and libelled in the usual form on the 2nd November, and a responsive allegation put in. The vessel and carRO were afterwards liberated on bail at Die appraised value of 8-2,500, and depositions were taiieu on l)oth sides, and cross-interro{j;atories tiled. Some irre<,'u- larities appear on the face of them, which were waived i)y consent as indorsed, and the case came before me on the (ith instant, on the pleadings, and eighteen depositions, those of the iiuister, second mate, and six of the crew of the Ida A'., and of six of the crew of two Luuenbiu-g vessels, pro- duced on the part of the prosecution, and those of the first mate of the lila J']., and of the master and two of the crew of the .1. ./. Fniiildiii, produced on the defence. Captain Tory states that on the morning of the 11th of October, he saw the mackerel lleet close to the shore in TUr. A. .1. lUANKI.IN. 91 Broarl Cove, pngaKc.l in fisliin«, ,uu\ liavii);^ niu .,ii(si(l(,. until he got about midway, lioliml al.lank shot foi-th.' jmr- pone of aseortainiuj,', hy their rctuniiii^ the Kifrnal, nimt ves.X'ls were British and what not. The .1. ,/. FmuhUn then eame out from the eenti-e of the fleet, and iinmrdiat.'ly Ket all sail and ran direct from the land, a.s if tryin- to avoid detection. To prevent her escape the captain ordrn>d a allot to l)e lired across her how, when she hauled down iier jib. and h()V(! to. TIk- two vessels were then uhom -i.'. miles from ^farsh Point in liroad Cove, aixl less than 2 miles from Sea Wolf Island. The Captain at one- hoarded the. 1. ./. /-'/v/^/,////, and found some mackend lines e,)il.M| lip on the rail, that were wt:t, th.' hooks attached thm'to being newly or fresh baited, and fresh fish bh)od and mack- erel gills on deck ; he saw also other lines coiled up under the rail, whicli were dry. Captain Tory charged Captain Nass wi^h fishing that morning insich' the limits, and he admitted that ho was lying to with his jib down and sheetsoffwhen the first gun was fired, but deni.'d that he liad caught any mackend. He said, however, that he had caught two or three codfish, lie aecomited for his lines being so recently wet by the washing of the deck. Jlis attention was then called to the gills, bloo.l, and bait on deck, but no fresh mackerel Iteingfoun.l, and Nass solemnly deiiyiug having caught any, and ai.pealing to two vessels, which he named, for cmihrmation of the statement, Capt! Tory released him. warning him, however, that if he ascer- tained that he had been lishing, or trying to fish within the hmits that morning, that he woidd seize him wherever he; caught him, within three luiles of the coast. This statement is conlirmed by the other men who boarded the vessel with Capt. Tory, ^fatson thinks the A.J.FmnkUnwm not more than one and a-half miles from the shore when they first saw her. Nass at first denied that he had his jib down, but afterwards admitted it, and said he was waiting to see if the other vessels caught any mack- erel. Although this circumstance, and his being ^so near t)ie shore were suspicious, it is obvious, that on the fads as they then appeared, the seizure of the vessel could not have V ,il I ! 02 VICK-\r)MtnAI,TY COI IIT. Imm jiisliru-d, OHix.cially if it \h> tnic, iisHtat.Ml in fli(> dofon- (liiiitK' I'vidonco, that she was thon ontnuh of tho.thm) niih'K. The cvidom-c of the liUiiciihiirf,' men in, thi-roforo, very matoriiii, liiid w*' must hcm' what it ainounts to. Tiicro w.«n' two vcsmcIh. th." ('hrnih au, when the crew hauled in their mackerel linos, hoisted jih, trimme.l their sails, and stood olf out from the (loot, and set staysail. Thonuis Mer- man says, four of the crow of the ,1. J. 'l''r,n,l,li„ were iishin- for codlish : tho skipper was throwing hait for mackoror and throw Ids mackerel linos; others wore on the rail on the starhoard side, looking over She was Love to. jih down, foresail and mainsail up, and sheets off on port side. Peter llecknnin, states that ho saw some of tho crew of tho A. J. Franklin trying to catch mackerel— thoy threw their linos over the starhoard side - they threw bait over to raise mackerel— they wore throwing hait with lines over, trying for nnickorel, as the Ida K. ap" proachod— the crow, after she lirod, hauled in tho linos, hoisted jib, and stood off the shore. The crew cheered aiKl shouted as they got out of tho fleet, and set their staysail, (ioorgo W. Nass says that he saw some of the crew of the .1. J. Franklin heaving bait, and thoy had mackerel lines out on the starboard side. She wa.s iio\o to, jib down, mainsail Tin; .\. .1. niANKIJN. 08 and fojvsfiil to |,„d. ,iHis uh.i.iI in /iHliii.fr J„r miiclaTcl - Hho was timu within two niilrH of Mroa.l (Jove hIioi-.. nm] iiLout tln-(.(. mil(.H to wcstwanl of Scawoif Island When tl..- 1ri.v»». Had I considered the facts in this case to amount to nothing more than a preparing to fish, I would have postponed my decision till the other Avas prepared and delivered. But I look upon the throwing of bait— the heaving to with shec^ts off, and the jib down" 'rilM A. ,1. inANKi.iv. 05 un.l tho vessel tliiiH hiii- in tl.r position to ciitd. inacki.n-I witli the luackeivl lines out, and lm„Ie.l in on the approar!,' 1.1 the cutter -these eireunistunces, coMple.l with the .leelar- ation and actions of C'aplain Nuss, hrin- tlic case d.nrlv ;islthnik, within tlic ni.a.MiM- of the Dominion Aets of 18.JS and 1870. as a lisiuno-. and suhj.rt the vessel nnd h.r cai-o to toi-hutuie. although „.. mackerel an. pvov,.] vx- oept by the declamtions of th. ,avw. to have h.vn takrn If 1 am wrong m this cou.-lusion. an app,.al to the Hin-h Co Perscmally, [ nniy say-if a .lud^'e has a rij^ht to ..xpress any personal feelh,r.-as the vessel was appraise.l at .^^SOO, and the ear^o. n. whieh the erew we,,. lar^n.Jv interested, at a mueh lar-er sum, I would he well pk,,sed to s>e the penalty in this ease lar^'elv miti|,'a(ed. It is notthepohey. as l' take it. of' the Dominio-, (lov- ^rnment nor is it the dispositi.m of this Conrf. to press with undue severity np.m the American tisheruien, even when they trench uptm our midouhted ri-hts. '[•hv Court has been accused, I am told, otcondemninn the U'.n.patuH; because the stewanl. in the absence of the master, had oausht seven codfish within the limits, for the purposes of oookuig Such, it is true, was the defence that was set up. and, had it been established, there would certainlv have been m, condemnation, lir :!:o evidence showed that there Mas a hslnng by three or U .r men. having lin..s overboard, as was admitted by the master, and several codiish cau-Wit •or the purpose of curing and not of procuring food onl v."as was averred So. in this case, three or four eodlish are admitted to have been taken within the limits ; but 1 have not taken that circumstance at all into account, consider- ing It too trifling to be a ground of condemnation In the case of the 7.V»v„v/,-2 J)o Court pormits tlio qualilicatioij iuipliod in tlu; ancient niaxiui, ' ]>,• miniinis ,1,,,, mrnt let:' When tliero are irref,'uIaritios of very sliglit consofiuence, it does not intend tliat the infliction of penalties should he in- flexibly severe. If the deviation were a mere trifle (and the catchinrr of a few codfish for a meal is such), wei-,diin;,' little or nothing in the public interest, it might properly be overlooked." Upon the other grounds, however, on which T have en- larged, I conceive it my duty to declare the A. J. FronUiw her apparel and cargo, forfeited, with costs, and her value, when collected from the bail, distributed under the Act of 18(58. lii-ANciiAKD, Q.(."., for government. Hhanncs, Q.C, for owners. I THE J. H. NICKEBSON. (Demvkkkd N'ovuNinEK 14111, 1871.) Violation oi- Dominion I-ishkkv Acts.— The treaty by which the Dnited States formally renounced the liberty they had hitherto enjoyed of fishinK within the prescribed limit of three marine miles of any of the bays or harbours of the Dominion of Canada contained the fullowini; proviso:—" Provided, however, that the American fishermen shall be pei^ mitted to enter such bays or harbours for the purpose of shtiter, and repairing damage therein, and of imrchasing wood and of obtaining w'ater, undfur no other purpose whatever." The y. H. Nickerson entereu the Hay of Ingonish, in Cape Breton, for the alleged purpose of obtaining water, etc. ; but the evidence clearly showed that the real object of her entry was to obtain bait, and that a (luantity of bait was so procured. She was seized by the Covernmeiu cutter, after she had been warned off, and while she was still at anchor within three marine miles of the shore. Hild. that she was guilty of procuring liait and preparing to fish within the prescribed limit, and must therefore be forfeited. " This is an American fishing vessel, of seventy tons bur- then, owned at Salem, MassaelmHctts, and sailing under a TirK J. Fl. NICKKIISON. 07 K to fish within iH .ing hcense ibhuocI by tl,e collector of that port and at«l March 25th. A.D.. 1869. In the month 'of ],:," IH.O. she was su...,l l.y Captain Tory, of tho Dominion Hchoonc.r I,la Z<;.. while in the North Havof In-^onisirran Breton, .hont three or four cable lengths frl 'sho and u appeared that the offence charged against her a^ hat she had rnn n.to that bay ibr the purpose of proem- n« bait, had pers^ted in renutining there lor tha n rp "f after warnn.g to depart therefrom, and not to return, ^d had procured or purchased bait while there. This ca e therefore, .hftors essentially from the cases I have already deeded. It comes within tho charge of a preparing o fash-a phrase to be found in all the British Ind Colmua Acts, but not in the Treaty of 1818. In givin- iud™f 10th of February last, in the case of the ^LJ^^S^^'i referred to the case in hand, and stated that I would pro nonnce judgment m this also in a few days, which I was prepared to do. But it was intimated to'tL Cou t t m Bome compromise or settlement might possibly take place m reference to the instructions that had been issued frm time^to tnxae to the cruisers, and to the negotiations pe^" mg between the two Governments, and I have accord'" y cas?of Te\r''"T\' ^^^\"^-g^^ i" ""« case as in the ae of the Uampatuck, on the wisdom of the Treaty of 1818 and some severe strictures were passed on the sph-^ and tendency of the tvo Dominion Acts of 1868 and 870 belrinT"'"'' and strictures the same answer mu^t be gnenm this, as m my former judgments. The libel «ets out m separate articles these two Acts, with the Treatv and the Imperial Acts of 1819 and 1807, all of .^ichle' admitted without any question raised ther on in tl e respon 2 allegation. I naust take them, therefore, bot^on get cLr^t: '""'r *'^ ^^^"'^"^^' ^^ ^^^^^^^ - '"« annro;.. • "^ consequence whether the Judge approves or disapproves of them. A Judge mav noj! times Ultimate a desire that the enactments he is called upon to _.^orce should be modified or changed ; bL "ntit — ivi jMiriii — - ■ -■■■^"'■■^-■'•^ 98 VICE-ADMIRALTY COURT. 1 I 1 they are repealed in whole or in part, they constitute the law, which it is his business and his duty to administer. Our present enquiry is, what was the law as it stood on the Statute Book on the 30th June, 1B70, when the seizure was made? The Court, as I take it, Ims notliing to do with the instruetiouH of the (.rovernment to its officers, and which, if in their possession on that day, might have induced them to abstain from the seizure of this vessel, or m-'.y induce the Government now to exercise the power conferred on them by the lOth section of the Acts of 1868. But before pursuing this inquiry, let us first of all ascertain the facts as they appear in evidence. For the prosecution, there were exhibited the examinations duly taken under the rules of 1859, of Capt. Tory and thirteen of his crew, all of whom were examined on cross interro- gatories. Capt. Tory testifies that he boarded the vessel at Ingonish, on the 25th of .June, and the master being on shore, that he asked the crew then on board, what they were doing there, and thoy said they were after bait, and had procured some while they were there after coming in, and wanted more. About an hour after he saw the master, and told him he had violated the law, that he had no power to allow the vessel to remain, and that he had bet- ter leave. On the '26th the vessel was still there in the harbour, and Capt. Tory boarded her and saw fresh herring bait in the ice house ,• and Capt. McDonald, the master. admitted that he had procured said bait since his arrival ; and he afterwards admitted that he had violated the law, and hoped that Capt. Tory would not be too severe witli him ; and as he promised to leave with his vessel, Capt. Tory did not seize her. She went to sea the same night, but on the 30th was found at anchor in the same place where Capt. Tory boarded her ; and judging from the ap- pearance of her deck, that she had very recently procured more bait, which he saw the next morning, he seized her. In his cross-examination, he says that the herrings he saw on the fii-st occasion in the ice-houae on board were fresh, THE J. H. NICKKRSON. 99 but baa been a night or two in the nets, which caused them to be a httle uamaged ; and were large, fat herrings and snuilarto those caught in the vincinity of In-onish at tliat season of the year. The herrings he saw on the second oceuHion were also fresh, newly caught, with blood on them, of the same description, except that they were sound. 11ns evidence, ni its main features, is conlirmed by sev- era of the crew. Grant went into the ice-house by order of Ins captam, and there saw about five or six bai-rels of tresh herrnip; bait and a few fresh mackerel. There were sea es ol fresh fish on the rails, from which witness judged that they had taken fish that morning. Capt. Tory then seized the A u-kcrxon and placed the witness on board as one the crew, to take her to North Sydney, the captain of the \^kcrs,m remaining on boa Witness, on the pas- sage, heard said captain say (and this several of the other men confirm in words to the line effect) that he had pur- chased .00 or 800 herrings that morning. He also said that he wanted more bait,-that it was of no use going out with that much. McMaster says that on the passage S.V. ney he heard some of the crew of the Nickerson say ha they had bought seven barrels of fresh herrin^ bait that inornmg and that they wanted more. Four of the seamen testify to another conversation with Captain McDonald, in winch he said he would not have come in a second time had he known the cutter was at hand, that all the bait he had would not bait his trawls once, and that it was not worth while for him to go off to the banks with that raucli. These depositions were taken on the 1st of Sep- tember, 1870, and the only reply is the examination of John Willis, the steward of the Nickersnn, taken in October under a commission at Boston, which undertakes to deny altogether the purchasing or procuring of bait.-nuUifving the numerous admissions in proof and supporting the re- sponsive allegation as a whole. Neither the master nor any of the crew of the J. H. Mrkrrson were examined, and 1 need scarcely sav that the evidence of the steward alone, mass of te as worthy of credit. iOiiy I have cited, is un- ( 100 VTOR-ADMIRAI.TY COmT. It being, then, clearly established that the ./. //. XickersoH entered a British port and was anchored within three marine miles of the coast of ('ape Breton, for the puri)osc of purchasin}:; bait, and did there purchase (U* pro- cure it in -Tune, 1870, the single question arises on the Treaty of 1818 and the Acts of the Imperial and Dominion Parliaments. Is this a sufficient ground for seizure and con- demnation ? This was said at the hearing to be a test case, — the most important that had come before the Court since the termination of the Reciprocity Treaty of 1854. But it has lost much of its importance since the hearing in Feb- ruary, and the present aspect of the question would scarcely justify the elaborate review which nn'ght otherwise have been reasonably expected. If the law should remain as it is, and the instructions issued from Downing street on the 5J0th of April, and by the Dominioii Government on the 27th June, 1870, as communicated to Parliament, were to continue, no future seizure like the present could occur ; and if the Treaty of 1818 and the the Acts consequent thereon are superseded, this judgment ceases to have any value beyond its operation on the case in hand. The first article of the Convention of 1818 must be construed, as all other instruments are, with a view to the surrounding circumstances and according to the plain meaning of the words employed. The subtleties and reftne- menta that have been applied to it will find little favour with a Court governed by the rules of sound reason, nor will it attach too much value to the protocols and drafts or the history of the negotiations that preceded it. We must assume that it was drawn by able men and ratified by the Governments of two great powers, who knew perfectly well what they were respectively gaining or conceding, and took care to express what they meant. After a formal renuncia- tion by the United States of the liberty of fishing, thereto- fore enjoyed or claimed, within the prescribed limit of three marine miles of an^ of our bays or harbours, they guard themselves by this proviso : " Provided, however, that the American fishermen shall be permitted to enter such bays or harbours for the purpose of shelter and repairing tm .1. n. NICKERSOK. 101 damage therein, of purchasing wood and of obtaining, water and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent themtakmg ary„,g or curing fish therein, or in any other man^ner whatever abusing the priyil.^c.s lu-reby reserved to These privileges are explicitly and clearly defined and to make assurance doubly sure, they are accompanied t negatue declaration excluding any other purpose hey!J the purpose expressed. I confine myself to the s nl hhio, halt or herwise, nor of drying or curing fish nor of obhumng supphes or trading. The def endantsdle. 't a tl^em^erson entered the Uay of Ingonish and and. d w.hm throe marme miles of the shore for the purpo o o obtauung water and taking off two of her men wl^ Ld nends on shore, and that neither the master nor the crew o oanUhereof, in the words of the responsive allegation." " ii hmg, prepanng to fish, nor procuring bait wh^rew 1 fash, nor havmg been fishing in British waters." hr e manne miles of the coast." Had this been prov d t would have been a complete defence, nor would the Curl lm^e been disposed to narrow it. as respects either ^vate provisions or wood. But the evidence shows that' allegation put in is untrue. The defendants lav not claimed in their plea what the counsel claimed at t^^ hear nig, and their evidence has utterly failed them. Thev ' ,' wen in. not to obtain water or men. as the allegatLn Z nor to obtain water and provisions, as their witnersZ.' but to purchase or procure bait (which, as I take it Ta Fepanng to fish), and it was contended that t ey J a t i : 'r; "^' *"^-' "? ''''''''''-' -^--^ - ch boil's' for b« ■"'"'' "• ''"* '' " i"^^-"«8e to enter our tiaibouis for bait was conceded to American fishermen it mattei to have been accidently overlooked w. i, .n eed, fr™ the SUte P.p.,, .n'at :tt:':^u2Ltr- , " ", "» Mggosted and doclined. Bal the Court »« I have already intimated, doe. „„, ;„,,„ „;.,„ ^ «:» jWiiraiMrfciMWiiiiMi lO'i VICE-ADMIRALTY COURT. rtMisDii for its jii(lj,'ment. What may be justly and fairly inniHti'd u[)()ii is that boyond the four purposes specified in till' Treaty — shelter, repairs, water and wood,— here is aii()tli(>r purpose or claim not specified, while tin; Treaty it- self declares that no such other purpose or claim shall ho received to jiiHtify an entry. It appears to me an inevit- able foucltisioii that the J. //. XicLersan, in enierins the i^ay of Ini^onish, for the purpose of procuring bait, and eviiiciuK that purpose by purchasing or procuring bait while there, became liable to forfeiture, and ujjon the true construction of the Treaty and Acts of Parliament, was legally seized. I direct, therefore, the usual decree to be filed Tor con- deiiiuatinu of vessel and cargo, and for distribution of the proceeds according to the Dominion Act of 1871. Ui-ANciiAUi), Q.C., for (iovernment. Shannon. (^).C., for vessel. THE SARAH. (Di'.t.ivKREi) April 19TH, 1871.) Onni'.H or Pi(ori;RniN(i.s against a Derf.i.ict.— The salvors of a derelict sliip Rliduld, ill tlio first instance, give notice to the Proctor for the yidmi- ralty, who will forthwith extract a warrant. After the issue of the derelict warrant, tlin salvors should move for leave to intervene. If the case be ons of only trivial importance, the Court will then direct the filing of affidavits in proof of claiiiis, etc. In cases of greater moment, it will sanction an act oil jH!titioii with the usual pleadings, and proof under the rules of 1859 ; a.nd wh(!n llioie are claims represented by several proctors, or subsequent to each other, a consolidation will be ordered, as in other cases of salviqe. If a privalo warrant be extracted in the interim between giving notice to the Admiralty Proctor and his taking proceedings, it will be disalloweo on taxation. ■ y '•. '- [, ! 1 t, ■ 1 ' ' The ship Sarah, laden with a cargo of 1.440 bales of cot- ton, while on a voyage from Galveston, Texas, for Bremen, THE SARAH. 108 was abandoned at sea, found by the steamship CaUfhr- ma, and brought into HaHfax. The salvage services ten- dered were of a highly meritorious nature, and the value of the property saved very great. A warrant haying been taken by the salvors on tlie 13th March, 1871, and a warrant extracted on the same day bv the proctor for the Admiralty, under the rules, section 22 and the salvors having proceeded for a default under section 10 (Which the Court granted witli ivservation of the right) and It having now been intimated to the Court that the owners of ship and cargo were preparing to exhibit tlieir claims, and give bail under section 22, a question arose as to the mode of proceeding in order to determine and pro- tect the interests of the salvors. It appeared by the forms under the rules of the Higl, Court of Admiralty, 1st January, I860. (No. 52 Append to Wilham & Bruce. 120), that the salvors in derelict, as in ether cases, file their pctition-the practice in this Court Dilate years having been to put in atlidavits only without pleadings. A search, therefor.., was directed into the prece- dents since the commencement of the new series in 1834 It was thereupon discovered that the practice had not been unitorm, and the Court announced that it would adopt the lollowmgas that which seemed to be the most convenient and m conformity with the spirit of the rules. There ought m no case to be a second arrest, although that occurred in the case of the Aja.v, when the salvors extracted their warrant, 28th September, 1838, and the Queen's advocate delayed extracting his until the 31st January, 1839 Where aship IS derelict notice should be given to the proctor for the Admiralty, that he may proceed at once, as it is his privilege and duty to do, and a private warrant in the in- terim will be disallowed on taxation, as was done in the case of the Wfxford in 1837. The course will be for the salvors, after the issue of the derelict warrant, to move for leave to intervene. The Judge will then, in cases of trivial importance, direct t.hp fil,--,-,,. .f affidavits ; in others, h( the usual pleadings a il sanct proof rules of 1859, 104 VICK-ADMIRALTY COURT. where there are claims represented by several proctors, or aubseqiient to each other, with a consolidation thereof, as in other cases of salvage. On the IDth April, 1871, the learned Jiidse pronounced the following preliminary decree : " I have read all the papers on file, and find the proof of the ownership of the vessel sufficient. The proof of owner- ship of the cargo is not complete. It is clear that the cargo should be discharged, and the ship and cargo must be ap- praised with a view to salvage. Our commission issues under the practice (Williams & Bruce, 233) combininf^ lanlivery and appraisement, and I direct that it shall be taken out from the two forms, Nos. 233 and 234, combined. The marshall will consult the interest and convenience of the claimants in the manner and place of unlivery. They will provide the labour and funds necessary for the work, I presume, and the execution of the decree under his super- intendence, and he will see that the cargo is properly handled, and stored. Two appraisers would be advisable, and the marshall will select them with great care, and, if possible, with the consent of the proctors for the claimants and salvors. They must appraise the difTerent lots in the manifest separately, as well as the ship, and as the appraise- ment will most probably be the foundation of the decree for salvage, and if questioned, will lead to difficulty and delay, every pains should be taken to ascertain and return the fair value. " J. N. KiTCHiE, Q.C.. for salvors. Blanchard, Q.C, for vessel. McDonald, Q.C, for cargo. i THE ANN. (Delivered July 31ST, 1871.) Seaman's Wages.— Action by master and three seamen for their wages. The accounts produced by the master, who had also acted as ship's hus- THE ANN. 105 ge pronounced band were extremely unsatisfactory and unreliable. He claimed a balance due h,m of «3i7.8o. but failed to establish his right to more than 834 80 There was nothing agamst the demand of the other promovents, and the amounts claimed were awarded them. The sums so recovered, being all under U40O, and therefore might have been sued for before two Justices of the Peace or a Stipendiary Magistrate Held, that the promovents should not have their costs. The promovents in tliis ca.se were the master and three seamen of the schooner Ann, who libelled the vessel in order to obtam the wages which they claimed to be due and unpaid to them, in the following amounts :— Petor Grimes (the master) claimed $317.80; Simon Grimes, $;]2 03- Charles Joyce, $21.17 ; and Christmas Brand, .$19 GQ Responsive allegations were put in on behalf of the owner • and, after hearing and argument, the Court pronounced the following decision : Peter Grimes, the principal promovent in this case, was ex- ammed before me at the hearing pursuant to the rules of 1859, and I was extremely dissatisfied with his evidence It appeared by the book he then produced that he was not merely master but ship's husband from April, 1870 to January, 1871, and that he received in that time for freights and charter lading $2,095. These sums he balances ex- actly by payments to the owner ; disbursements and wages amounting to $650.95, of which only $101, he says, were for himself, leaving $283 due to him. This is a most improbable tale. I see by one of the entries in the book, that he lias a wife m Arichat, and that only $101 out of upwards of $2 000 should be retained by Grimes for her subsistence, and his own, IS what I am not disposed to credit. The last eight pages of the book contain the particulars of the alleged pay- ments and disbursements, including $588 for the owner. These last, occupying two pages, he swore, were the original entries, and that he had. the book with him during the voyages. He said, " I wrote the charges in the book at the time they occurred," but the appearance of the book and the wi-itmg of the eight pages so completely belied this statement, audi expressed at the time so strong an opinion on it, that he admitted that the original entries were in another book Y-A.R. g Pf JM 106 VlCE-ADMlRALTY COmT. he hadonboard. Two books have accordingly been since filed, which I have examined, and find them utterly worthless. Here is a case then where there are no vouchers or original entries, and no account of all these voyages that the Court can act or depend upon. Yet the master's claim for $283 out of the $317 in his affidavit depends entirely on the result of his dealings with the ship, and the ascertaining of a true bal- ance, which there are no means of getting at, and no evi- dence to sustain ; for f regret to say that I can have no confidence in the integrity or fairness of the testimony given by the master himself. I have before me also the ex- amination of Mr. Pitts, in opposition to his," Grimes, be says, "stated last spring that thevessel owed him i'lOor X'll, besides a share of the profits. " This sum of £10 or i'll was for wages due to Grimes as a seaman before his employ- ment as master, and is reduced in the libel to $34.80, which I shall allow him, not being open to the suspicions and uncertainties which attach to the large claim, and render it impossible for the Couit to recognize it. There is no reason to distrust the evidence in support of the claim of the other three promovents, and I award to Simon Grimes $32.05 ; to Charles Joyce, $21.17 ; and to Christmas Brand, $19.35. It is obvious that the main purpose in coming into the Admiralty, and incurring the heavy expenses of this Court, has been defeated. Four separate claims of small amount have been recovered, all of which might have been sued for be- fore two Justices or a Stipendiary Magistrate, and the wages and expenses levied on the vessel, under chapter 75 of the Revised Statutes, sec. 22. This simple and inexpensive pro- cess would have afforded to the four plaintiffs as effectual a remedy as the suit that has been brought here, and I feel it incumbent on me to certify that such is the fact, pursu- ant to the 27th section of the same chapter, which deprives the plaintiffs of the cost of this suit. H. McLean, for promovents. W. Walsh, for vessel. VICE-ADMIRALTY COUKT. 107 I, and render it THE REGINA. (Delivered Novemuer 15TH, 1871.) DEREMCT.-This vessel, while passing down the Gulf of «;f r , struck on a reef, lost her rudder nnH t V '' ^''iwrence, this condition she was f^u d^ the l,vrs'":ho T ' "T^^^^eable. I„ .esa.eport^ T^net::^;iS:?:;;-- onZ; hi tr^h^. ^^^™ ^^-^ --'- «3oo, and the teJ sea.en and tt"^ «iven as to proper method of executing appraisement of ship The barque Itryha, on a voyage from Quebec to South- ampton, laden with timber, struck on a reef while passl own the Gulf of 8t. Lawrence, and after beat ngtaS for some time floated off again, but immediately tcame water-logged and. through the loss of her rudder utteWy unmanageable In this condition she was encounter d by he schooner Ocean Belle. I„ response to signals of dis tress the crew were taken off, and the yessel abandoned The crew were brought into Sydney, Cape Breton, and the same day the salvors proceeded in boats on boari the 1^ took possession of her. and, after some days' severe ex ? on' succeeded m bringing her safely into the harbour of Sy neT' Certain infoi^alities having occurred in the course of tlfe oceedmgs taken by the salvors, the Court, on Octob r 7th, 1871, gave judgment thereon as follows -1 1 have read the papers on this case, and find that th« proper course has not been pursued. Tnis is not the ca of some triflxng articles found derelict, but of a sWp and cargo appraised at nearly $10,000, which must be old to E iTveT' ^«^*r;.-;-«"— ers appeL anl' > ba 1. I ave been obliged to establish it as a rule wWch practitioners well know, never to award salvaVun the net proceeds are paid in or bail filed. rTnI.!° th" i was a just expectation that the owners would appear and acquiescing in the appraisement, would give bauf he com! 108 VICE-ADJIIRALTY COURT. mission that was asked for and executed is utterly useless, and will probably impeach the sale as too high. The form also was mistaken when the commission was directed to the appraisers, who oajjht not to have been empowered to choose and swear a third party, which last, very pro- perly, they have not done. I doubt, too, the wisdom of naminjT a submarine diver, one of the appraiser,^, whei. the principal salvor is of the same profession. This com- mission and appraisement, I presume, will have tc be abandoned. Three months from the return of the warrant will elapse on the 19th instant, after which I shall decree a monition. Kules, sec. 22, No. 164, mutitis mutamlis. On a proper affidavit, under the same section, the Court will order a sale of ship and cargo, which, as the season is advancing, should be done at once, and ought to have been done when the commission of appraisement issued, unless some reason existed therefor, of which 1 am uninformed." A sale having been made of ship and cargo, the Court, on the 15th November, made the followinc; apportionment of salvage : — Proceeds of sale of ship and stores 81,505 00 Proceeds of sale of cargo 5,600 00 Salvage allowed to Ocean Belle and master thereof, who was also owner Jjoo 00 Ten seamen, at 8200 each 82,000 on „,. , 82,500 00 With costs. McDonald, Q.C, for salvors. M. B. Daly, for owners. ? ViCE-ADMinALTY COUIIT. 10(» THE S. V. COOXAN. (nELivERKD November, 1871.) DEREr.,cT.-A schooner found by fishermen floating on her beim ^n,l, 1 lie sale of ship and cargo realized «954.6o On the morning of the 7th of July, 1871. two fishermen wiio were at their occupation, in an open hoat. about our! een m.les off the coast of Nova Scotia, discovered a schooner on her beam ends, with the sails lying fiat on the water, and about three miles distant. They pulled u» to er and found the sea breaking over her. no Hvfng bin! on r in ".^T'T' ''''''''^'' ^^"^S "-- After con Itation with the others, it was agreed to join all together a^id take the schooner in tow by means of a line fastened to the bowspnt. to which the boats, some six in number w re attached They then made for the land, and con! 1 e vl V T ^. "^'""^ ^'"'''' ^P^'^"^ up. Eelinquishing the vessel for the night, they, with the addition of some eT' '^,t"^"-t>'-t- i" all. set forth again at a"! break, and found her ashore on an island out^de Jeddore Harbour, with the sea breaking over her. They immedT ately proceeded to work her off the ro.ks by means t; auch^, set out ahead, and the tide being l^iJ.ZZ:^ a X e?f f t ':,'"'^' ^^''' " ^"y'« ^'^*"«"«"^ exertion;;; a place of safety within the harbour. 110 VfCE-ADMln.\LTY comi'. The Court awarded salvage as follows : — Sale of ship less expenses fjiS on Sals of carg<> • less expenses 6j6 60 •954 (>o Allowed to salvors for their labour, etc $153 00 Allowed to salvors for salvage, viz., 32 at Ig each 288 00 With their costs. THE ARCHITECT. (Demvrred December jgrii, 1871.) Dkrelict.— One-half the net proceeds of sale awarded to salvors where no appearance or claim was entered on behalf of owners. The vessel Aichitect was found by the salvors drifting bottom up about two miles from land, and by thera towed into port, and a large portion of her cargo, which consisted of timber, saved. No appearance was entered or claim made on behalf of the owners of either vessel or cargo, and tlio court made the following apportionment of salvage: Proceeds of sales in court 375G 80 Charges thereoii allowed ^4 47 •266 83 VICE-ADMIRALTY COirRj. Ill i to salvors wlieie THE HERMAN. (Delivered Jancarv, 1872.) Tl,e Gorman l,„rq„o tlmmn was di,covoml bv ll,„ .cat«e,,.,.,„„et°t{«rr::„:rrrr found .mpossible to make the harbo... an.lZZl'l Ir.T in danger of goine ashm-P +.1 '^'''"K Halifax for a tl^ In rel' J'^'r .7' ^^''P'^*^''«^' *« raonnng. Al the re,„eHt of the salvo™ aTlbe ^? a"!'"' were sont on board to relieve them and LT iT f «.e steamer then .„„,d the barque ntoLr' . J?'' captam of the i^,*;^, „„ behalf of himself and 'rew J,," .«mot«;VtL?^"'«- ''"^ «-'" -^ -de^te hil, ■ *iiraiNitiiiil'i i iiiiiiHwiniwiiiiiMiiiiinnTgiiiiriri 112 VICE-ADMIRALTY COURT. Nothing was offered on behalf of the owners to the captain of the Sphiiix, or to the crew. See on this subject The Nile, L. II. 4 Adm. 449, 33 L. T. R. N. S. 66, 33 L. T. E. N. S. 394, 35 L. T. E. N. S. 9, Lush. 878. THE ABBi ALICE. (Delivered June 20th, 1872.) Security for Costs. — Where the plaintiff, in an action on a bottomry bond, wa.s resident out of the jurisdiction of the Court, although presum- ably a British subject. Held, that, on application being made therefor, he should be required to give security for costs, on the defendant making an affidavit of merits and of the defence being bona fide. Action on a bottomry bond brought by Mr. Pitts, agent for David Browne, resident in Antigua, and presumably a British subject — Rule nisi on affidavit for security for costs — Objections that the rule does not exist in the Vice- Admiralty Court, and that in the High Court of Admiralty it does not apply where there is a right, but only in cases of damage. This being the first case of the kind I have looked into it with care. There is nothing on the point in the rules of 1832 or 1859, and I resort only by way of analogy to the practice of the High Court of Admiralty and of our own Supreme , Court. In the former, security for costs is required, where the plaintiff in a collision cause is resident out of the jurisdiction. (1 W. Rob. 826.) There the plaintiff was a Dane, and in most, if not all of the cases, the plaintiff was a foreiguCf ; but I can sec no difference in principle between the holder of a bottomry bond resident at St. THE CHASE. 113 Thomas and at Antigua. They are equally beyond the junsdictzon of this Court, and „o such distinction s k o " at common law. Where the plaintiff's right was clear, or was admitted it would raake a difference ; bat here it is to be quT ti^l and I cannot examine the validity or invalichty of tie bond at this stage of the cause. (1 W Hob 31(3 ) whirmthtle'aT?""^"' """' '"^ ^^^ '^^^^" ^"^ ^^--^ -^^ L befo V T f '^W!'-':^^^*^"' -"<^ looking to the authori- absolute for a deposit or security of ilOO. The point ' being new, I mve no onafa w^, c i-. point qft . 1 T T^ * 1 ^^ "^^^ ^^ ^^^■"<^e, 295 ; Coote 38; 1 L. li. Admy. 335; Lush, 377; 2 Conkling, iio The defendant having liled an affidavit only of the omicile of the plaintiff i„ Antigua. I shall reqii L a further affidavit of merits, and of the defence beinV ,,; Jide, before granting the rule. ° U. J. Griffin, for plaintiff, N. H. MEAOHFr.. for defendants. lave looked into THE CHASE. (Delivered Al-gu.st 14T11, 1872.) extraordinary sudde l^'s h'e ha "" , """"'' ^'"'^"'^^ ^^°- ^'^ approach than a frZ: h. . J '"" "° ""'^ '"dication of its taken so to rookie h^tir".'; T' ""■■''°"''" P^^*^^"''-^ -re might have beenTsed to tr^^ """■■ ^"'^ "^°- ^^--^ methods ployed, the probab Mties were s r T""T' '"" "'' ''^'^ "'^>' "^^^ «'"■ her ..harf. °''^'"""'' ^"^ =t'^°"g'y 'n favour of her remaining fast to Held, tha| she was liable for the damage done. ■•>-»«-4!,>aBli^ 111 VICE-ADMIUALTY COURT. In this caso, on an affidavit of tlio plaintifif that tho ■K'ttdsr had run foul of his wharf at Halifax, and greatly in- jured it, on the 12th October last, a warrant issued in the us\ial form in cases of colhsion, and hail was put in in the sum of $1,000. The libel was filed 5th December, and minutely described the circumstances of the alleged injury, the material allegations being that a gale having arisen while the steamer was discharging cargo at the Dominion >Vharf, no 8tei)s were taken to secure her safety, although (she had no anchors out or steain up, and was imperfectly fastened as described in the libel ; that none of the princi- pal officers were on board, and only two or three of her crew ; that it was blowing a violent gale from the south- east, with a very heavy sea running ; and in consequence of the careless and improper mooring of the steamer, a^i ' there being no one to look after her, the fastening slipped off, and she swung round to the eastward, and headed uji the harbour, coming into collision with several wharves in succession, and ultimately with the plaintiff's ; that the damage was occasioned solely by the carelessness and neglect of the owners and crew of tho said ship or steamer in not mooring her securely and taking proper steps to prevent her drifting ; that she drifted up the harhour, bows on, for ahout four hours, and during the whole of tliat time no effectual steps were taken to secure her or prevent tho damage ; that the plaintift''s wharf was strong and in good order, and that the damage done thereto exceeds $800. The resiionsive allegation put in denies, Hcriatim, all tho allegations in the lihel, putting the plaintiff upon proof of all, without exception ; a mode of pleading of which the Court cannot approve, as many of the plaintift"s allegations are indisputable, and the answer should have distinguished •which of them were untrue or exaggerated, as many of these allegations are. The answer then avers that as the storm was seen approaching, the steamer being fastened in the usual way, additional steps were taken to fasten her still more securely, and that she was properly, skilfully, safely, and securely fastened and attached to the wharf where she lay, and the wharf next adjoining to the south- TIFK CHASE. 115 W( , by hawsers of great strength, and would have tl^ero .fey i-ema.ne,l had not one of the spiles to which she wa I.J li he vy seas and I.urricane, which bent it over and imllod ,t troni .ts position; that the steamer thJreuno went astern w.th groat force, and the bow fastening parte" .md she went st.ll further astern until she struck t j wh J mast Ttl ' '"' ?"" "" """^•^' '^ '^--»^^^ '• ti-t th "m s'^HlTT' "f.r"" ""''' ^^"-^ "-•*"'" -^1 their utmos. skill to get the vessel to swing and prevent her n. pmh.nuU proceed upon the same principles. In .l/o,,.„ v..S7.,, 11 Moo. P. C. Cases, ail.Lord nens^aidak says : " I„ a case of .collision, the party seek- mg to recover compensation for damage must make out on! Th [ 'f '. "'"" '" ''"^^^^ ''-' - the wrong. Ihe burdc.n of proof is clearly upon him, an.l he must show that the loss is to be attributed to the ne^li! genco of the opposite party. If at the end he leaves the case in even scales, and does not satisfy the court tiiat it was occasioned by the negligence or default of the other party, he cannot succeed." ^^ It will be observed in these decisions that the words ordinary care, " precaution," " the circunrstances of the case, perpetually recur. They are the key notes of the ule Extraordinary and unexpected cases, which a pru- den and thoughtful man could not have foreseen and was not bound to guard against, are not within the rule. Thus in Blytk V Binningham ]Vatcru-ork>, (11 Exch. 781,, where t e de endants' Ih-e-plugs were constructed under the A of Parliament, but gave way under the severe frost of 18.0, which penetrated to a greater depth than any which onhnarily occurs south of the Polar regions, it was hdd that the company were not answerable for the conse quences They had acted according to the circumsWs not charge them with negligence. But where emerc^encies occur, and a vessel i= pvnn-wl +-> +-,.,. i "i-^oentits „]„ , . . fi^pooect to tempestuous weather, or placed nr a critical position, the master must be equal to 120 VICE-ADMIIIALTY COURT. the occasion, and must adopt, on the instant, such measures as adequate skill and seamanship prescrihe for his own safety and that of others. *' Darkness and thick weather can only ho an excuse in collision for those who have exercised such additional caution as prudence and the circumstances require." (Machlachlan on Shipping, 280.) In the Thomas Powell v. The Citba (14 L. T. 11. 603), the latter was held liahle for the collision, though it was a very temp<'stuous night and the wind blowing with severity. And in Seccombe v. Wood (2 Moo. & Rob. 290), where the vessel had received an injury and been rendered unmanage- able by the negligence of the defendant'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 ChdHc. was fastened to the wharf as she had always been, and as usage had shown to be amply sufficient under ordinary circumstances. She was discharging her cargo ; her boiler being rinsed out and her steam managed as usual; the master absent for u short time, as he had a right to be ; the other officers and crew on board. The hawsers and equipments of the ship were in good order. No accident had happened to her or her companion ships at the wharf for some years. But the tempest came on with unexampled violence and it was obvious that additional fastenings were necessary. They were in fact put out and the princii)al one secured to a spile on the south-east corner of the Dominion Wharf. The first and most material question therefore is, were the fastenings after the storm such as a prudent master, of competent skill and vigilance, ought to have used and been content with, looking to the position of his vessel and the appliances within his reach '.' And the steamer having broken adrift, by this principal spile giving way, the second question is, was slu^ then handled in a scamanlike manner, and every reasonable effort made to avert the damage that was done ? The first of these questions is one of which any intelligent man can judge after listenin,<^ to the evidence, and, above all, after inspecting the premises. The second THE CHASE. 121 The second Z Tr f ^'" '"'^ ^'-''°"«^ "^''^ t« «>« Assessor ban to the Court, though the Judge, according to the coctnne n. the Mor,na Charta (25 L. T. 11. 578), has still the responsil,.hty of drawing a judicial conclusion. It is not my intention to wade through tlie statements in tlie numerous depositions, which are often mere repetitions of each other, and would extend this judgment to an inordi- nate length I shall content myself with reviewing them m their leading features and inquiring ih-st of all into th. character of the storm. Three or four of the witnesses for h plaintiff are disposed to depreciate it; but the great ody of them, including some of the promovents, uni^e n I escribing it as one of the heaviest gales accompanied bv the worst sea that lia.l been seen in this harbour for many years. Reyno says : " I have been about Halifax Harbour al my life, in large and small vessels, and never saw a pile come up so quick; there was no warnin.^- it was the l.,.host tide and sea that I ever saw in the harbour. I d^ not think there was going to be such a gale ; but when it am J. I. ^^ ood says : " This was a whole gale, the worst ever saw m Halifax Harbour ; there was a Cery Wy a in this harbour, the worst I ever saw here?- Mi Allison, the meteorologist, watched the progress of the ^ale' l^ou , 30 nnles an hour is a gale of wind ; 1(] miles is a ^srong breeze; and this gale, at its height, was ex^^ oidnia y; the highest we have had since 1870, such a -ale as probably only happens once in a lifetime ; Uiil L^s a cycloue . at noon the barometer stood at 2<)-H2H at !3 n m it ose. Sev,n-al wliarves were injured by the storm ; and Make ^\ bur was torn to pieces up to the fish market vidently by the sea and tide. The tile had been 1 " e . . The evidence, I think, clearly shows that, having arrived at 11 o'clock, and the first indications of the storm having l)econie observable between 2 or 8, siie could not be expected to have steam up or anchors down. There is no fault imputable to her till the gale was approaching its height. Then the extra fastenings were out, and no doubt the master and principal otiicers (all of whom have been examined) believed they were sufficient. It is hard to impute to these men, having a valuable, uninsured ship in charge, with the advantages of long experience, a want either of vigilance or of skill. They describe miimtely the fastenings they employed, and it would be a waste of time to describe them here ; they appear on the diagram. And 1 cannot help thinking, after a careful and deliberate review of the evidence, that there was an error in judg- it •HE CirASK. 123 " arrived nt 11 ment m trusting o one spile. H.l.hvin's ovi.loneo an.I my .nvninspocfon show that there was a seeon.I spile o n t" e «outh su e ot J omnuon Wharf, which was no use A hue to the Hp.le on the north side of J)„„,inion Wharf accordniR to Steele, would have been of no service, for the reason he assigns ; hut this cannot he said of the spile on he south sule. It is adnutte.l that the cause of the 7.,." breaking away was the slanting of the spile on the sou h east end of the Dominion Wharf, to which slie had made fast Wilcox says : '' I think the Cl>,..e'. fasts wer s" 1 cent to keep her to the wharf, if that spile had not g „ way The whole of our fasts on the J .ninion Wit including the extra ones, were fastened to one spile ha /j taken the fas that was on tl. spile near the si .Id ad Z t' the spile on the wharf south (that is on Ml' 1 to u hours af.;:;:]s;^rr!:^;^.T;^ tins time it must be recollected the violence of the I m was mcreasing. It rose to its height. Mr. Allison tlnks between . and 7 o'clock, and to a vigilant looker on g t have s iggested. one would think, the wisdom of stren' t Millers. Capain Mulligan, whose deposition is very full ad minute, achnits that he depended on the south si eo the Dominion Wharf as the main or principal fastening o th ship and unhappily it failed. I have no doubt no withstand ing the allegations of the libel, and the echra ions three or four of the witnesses for the plaintiff that" the captain, the chief engineer, and the other office of t^ after she broke away, to avert the damage. The anchors je droi^.ed at the same instant with the break ng away dial he damage had been done ; and the only question f at tr^f T ' "^ ^'' "'^ P'-^^-S out of only 20 :; Ltr -ultr ^'''' ' '-'-' .-antity woufdhave Since the hearing. Captain Nicholson has gone over the iV 124 VICE-ADMIRALTY COURT. evidence as well aa myself, and has recorded his conclii- sions in a letter to me, which I will now read and put ou file. Opinion of H. F. Nicholson, R.N., acting as Nautical Assessor in the alTair of the steam vessel Chasf. H. M. S. Royal Alfred, Halifax, July 24, 187J TjiR, — I have the honour to report to you the opinions I have formed when acting in the above capacity in an action tried before you in the Admiralty Court, at Halifax, on the 8th and gth of the piesent month. Having very carefully listened to the evidence and arguments adduced, and havmg, in conjunction with yourself (at the instance of counseli visited the Dominion Wharf, to which the steamer Chase was moored a! the time in question, I have been able to arrive at the following conclu- sions :— 1st. That the gale which raged at Halifax on the evening of the 12th October, 1S71, was one of most unusual violence. and. That no seaman, taking ordinary precaution, could hnve antici- pated such a violent storm, as nearly ihe only indication of its approach was the falling of the barometer; other indications, such as a ground- swell .= iting in heavy masses of angry-looking clouds and fast-flying scud, etc., being wanting. 3rd. That under these circumstances it was not incumbent on the master of the C/uise to close his boilers and get up steam. 4th. That the steamer Cliuse was improperly secured to the Dominion Wharf, ina.^much as only one spile was used, while several were available. If ordinary seamanlike precautions had been taken I believe there was every chance of the Clmse 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, might have been doubled or trebled with great advantage; that a heavy .spring should have been put on from the star- board quarter to a spile on the north edge of the south pier of the Dominion Wharf, and that the breast-fast from the starboard bow should have been taken to the spile situated further up the w harf. 5th. That after the Chase broke adrift, the anchors were promptly let go, and that no other steps to prevent damage could have been taken by the master of the Chase. 6th. That when i' became apparent that the ship was dragging her anchors more chai'i should have been allowed to veer. The testimony of the witnesses proves that between 25 and 30 fathoms were veered. If this quantity had Ijeen very much increased (say to from 70 or So fathoms) I believe that the Chase's chance of bringing up would have been a very good one. J.! i ! i t 1 THE CHA8K. tical Assessor in the evening of the i2th 125 Two other poinu v.ry much less material thnn the foregoinc havr been raised by counsel. t mav be as w^li f.r ,„ . " them. """ '" ''"P'''** ""y opi"'"n on The counsel for the plaintiff urKed that if Qt*.-m h. n, onh. ..„i„ „,,., kL ,..„ ."..r^ar.: xr, 'r ;,; J . , ~, ,. ""'•'"'' "' snap pjnR the hawsers cou il not hivp ht.„n r. .L u ^i"> <-uuui laM! steameil out to the e'.TqfwTr.l after the hawsers parted, and her head paui oa from the wharf an UnhJ done so she could have anchored to leeward off St C^nr..' r , ^ every prospect of being able to ride out tiegall ' "' ""'" I have the honour to be. Sir, Your very obedient servant, (Signed) II. i; Xi'ciolson, To the Honourable ^"P'" " ''• ^- ''"y' "^'f""' The Chief Justice of N. Scotia, Halifax. mbent on the master I pronounce the Chase liable with costs for the damage done by stnktng the plaintiff's wharf, stich damage tTi^e .scertamed by referees, according to the practice of tlie High Court of Admiralty an.l of this Court binder the rtt es sanctioned by the Crown in the year 1832. Judgment of the Lords of the Judicial Committee of the Privy Coun.-il nn the Appeal of the New England and Nova Scot,! V, Council on pany, owners of the steamer C7,„. and L^Bo^lTe' " ;^ .he V^Admiralty court of Hahfa. r r;;"d:-:i P^u^r '^ ^- ^- "°^^"- ^■'"^-- ^— and Sir Robert Admiii;;couno?Hlr v^'-r"' °' ^'^ '^"^'"■-->' °f ^^^ v'-- =» "l—r".,"'."", ■"""'<"""»'. "?.. »•>• v»..l. which „„ . 126 VICE-ADMIRALTY COUKT. calls a test case (the value not being very great) of the principle upon which the other cases of damage indicted at the same time by the same steamer should be adjudicated. It appears that this vessel in the mornrng had arrived, and had been placed in supposed safet>— was made fast to the eastern end of the wharf called the Dominion Wharf. The captain had gone a.shore, and at th? time when he went ashore she was moored in what is said to be the ordinary way, which he describes as follows: He says, •■ Between loand II a.m. she was made fast at the usual berth. We made fast at first with a bow spring from our starboard quarter chock to the southern corner spile on the south Dominion Wharf (this was a sj-in. hawser, single one part), and a bow breast-line hawser to another spile further up the wharf, and then we put out a stern breast-fast to a spile on the north Dominion Wharf, which was 6J-in. single, the bow-fast being the same size. These breast-fasts are made w ith an eye which drops over the spile. We put out one more from the stern chock to the north spile on the north Dominion Wharf, being also single 6.J-in. line. We had thus four fasts, three of which were 6J-in. hawsers, and one of sj-in." The vessel had been moored in this way. The captain went on shore and left his mate in charge, the weather at that time giving no indication whatever of the fear- ful storm which subsequently followed. It appears from the evidence that about half-past two o'clock the falling of the barometer and other symptoms indicated a coming storm. In consequence of that, in the absence of the captain, the mate put out extra fasts, as they are called, "from mid-ships chock to the south spile on the south Dominion Wharf, consisting of a sj- in. hawser three parts, and they then ran three parts more of same size from our starboard forward chock to same spile ; both these hawsers were new (Manilla). The wind increasing we carried the bow-fast"— this is a very important part of the case,— "to a spile on the wharf south of the Domi- nion wharf, single'— that was to a wharf called Miller's Wharf— "and made fast." The diagrams have been put in which were agreed upon in the court below as faithfully representing the state of the fastening of this ves- sel at the time. Now, the captain returned about 30 minutes past four, and between that and .■somewhere about half-past five he was alarmed at the state of the weather, and ordered steam to be got up. The vessel broke loose between five and six, and about half-past nine she struck Boak's Wharf and did the damage which has been mentioned. The contention on the part of the plaintiff in the court below and the respondent here was that ordinary care, caution, and maritime skill wai not shown by those who had charge of this vessel, and that if proper precautions had been taken this damage could not have ensued. The judge of the court below, in a very careful and elaborate judgment, arrived at that conclusion ; and in his opinion he was strongly fortified by the nautical assessor, Captain Nicholson, who delivered a written statement of the grounds upon which he formed an opinion in consonance with the j udge. There is no dispute in this case at all that previously to the happen- ing of the storm the vessel v.-.-i.-. properly moored, that is, that previously to the indications of the storm, which took place about half-past two, this THE CHASE. vi: i. has been contend daX^; YZT"'''"'""' ""^ ''^'°" "^ "-• contended, that those who hrdthc;;;';'-;;:';""': '"^'^' ■''"' ^'^"">' take precautions against an extraordin.. , '' ''"■' "°' '^°""'' "^ .^ said to have beii, andti::^;:^^^:^';;,^^;^ ^- v^ ^^-^ ampled violence, and such as nnhnHv .^f" "> ^" P'^r"es, of une.x- question their Lordships have htfl "^ "" anticipated. Hut the bound to take precau fons a.ai ! a Vr"; " "°' "'""''^^ "''^>' -- extraordinary cLract but l" tier the """^"-^P'-l -"'-ce and of and the measures which'they did itpt 4^^"'^ "'"' ""^^ "'" '=^'^'^ and competent ™an of nL^f^^^^Z^^i:"'':?'''''^'''''''' ordinary gale. ''"''^ ''"'^'^ ^^ken against an .0 the south spile, and'that [hev,' Lg'reiredlh: 't ''^''^ ^'^'^^ lower spile, and attached it tr> ,h»' i f*''"°'«'' 'he fastening from the wards a'dd an addSn f sTeit t'o ^1 ^' ""T" '''''''' ''' "°^ "''f'- measures which I will p eLTtrfdle to a" '"W"" ""' "°' ♦^^-"^- Unguage by Captain Nicholso^i^hro^.n o'^'h L's"" ^^I "r"^^' C/mic was improperlv secnrpri t,wv, r> • • "''sajs, 1 he steamer one spile was u'sed' di!:"-^^ ^^J^ll^ '"'^'r"'^^' - -ly about the word ..spile." It may be the Tv' d e^ theTe "n""' '^ "''' •If ordinary seamanlike precautions had been taken Ibelil T" ^"' every chance of the Chase riding the gale out safl I r ^^'^ ^'^^ the hawser which was taken from thestJ. !, ,^' "" "^ °P'"'°" '^^' south of the Dominion '■-ThatT h! '''""^■:^, "^"^^ »° '^ «?''« on a wharf Wharf;-... might ha e bern H n . ''''"'' ''"'^ ''"■''^'''='' '« fillers Thatisthefi St aultthathcn ^ ^ '""'' ""^ ^'•'^=>' advantage.' a heavy spring hould hate be " '^ ""' "';' ""^ "'■'°"" ^=^"" '^ '^is, •• fhat spile on the north edge of the 1 "k' "T "" ^'^^'^"^^'^ ^""-'" '" ^ third fault is .. that the brels fas ft "T. '^\^"'"'"-n U'i,arf ;•• and the ta^en to the spile si ttatt^^f^^tf t^^'^h' It: -."^^^o""' ^^^^ '''" '"^^ cautions which, in the opinion of thl , '■ ^" "'"'^ ""'^ P^e. Judge below, were prec'aurn \ th'T^i^^^^^^^^^^^ practice would have taken against tS occu rT ce o :troV'",' '"' seventy. ^ "' a gale of ordinary Nicholson's view. wL^h ^al Ipt^, ^T^r '' °' °P'"'°" ''^^' ^^P'-" below, was the c^rreJ viZ a d' at a'll he e""' '"'^^ '" "'^ "^""^ beenenumerated weresuchas a prudlnf ^ P'-^^^^t'on'' -hich have apprehension of an ordinary gale ' "°"" '^^^ '^''^" '» *»>« -t^t>7n.'gC«'?h:;:ed^"th"fKr '^r^'''" ^^'^^^ - to the particular tbe acts o?neg i^e eS el Ld t ' n'tn °"'"'°" ^"^ '=''^^«' --« «^f nothing in ^L,ecti::J:lrj:^;^-r;^!^7n 'Hat there "■/^atttmuDtumiiitmmumsmm 128 VICE-ADMIRALTY COURT. Lordships would be inclined to agree with the opinion expressed upon this point also, that an error was committed by her captain, when it be- came apparent that the ship was dragging her anchors, in not veering out more chain, especially as it appears from the evidence that there was abundant chain for that purpose. But it is on the other part of the evidence which has been mentioned, namely, the absence of ordinary precaution against an ordinary gale, that their lordships have come to the conclusion that it would be wrong to disturb the judgment of the court below, and accory this Court do forthwith assume the charge and custo^ly o^" the aid derelict brig John, as she now lies in the ha^our of Halifax ; and do forthwith proceed to land and disclule dams of the several owners and underwriters of said brier and cargo can be brought forward and duly considered ail any expense incurred by the marshall, his d puty an Jytr ;: -' ^'""* ''r ""^^ "'- ^^-^^ ^^" ^'^'^ «"^ On the 29th July, 1872: " On reading the papers on file in this cause, particularlv the claim and affidavit on behalf of the owner o^Si? 10 1!K) VICE-ADMIRALTY COUIIT. Ij 1 i \ 11 !* mill llio cliiim and afiidavit in respoct of tlu- cavRo, witli I lie liills of ladinij; didy endorsed, and tlio allldavit of tlic luuslcr of tli(> Haid Hhip, and it ai)p('aring that said ship ciinnol 1)1' rcpaiiMul so as to cany the said cargo to its di'slination, and that tlio master makes no demand for tho continued poHsrssion tliereof, or the payment of any freight tlicrcon ; and it liuving heen oi'lieially commnnicatod to me Hull tlie consent of tiu' Admiralty will not be given to ray awarding any allowanci' to li. ^[. ship Tamar, her com- mander or crew, for salvage of the said ship and cargo ; ami the custody thereof, while held in this Court as derelict, and the landing of said cargo, and the proceed- ings in relation thereto having occasioned considerable .2,„oo .- ,t is onlo.-.I, with the consent o? th. ..ents o sanl slap and car,<> and thoir counsel, ti.at it h. refcn-e.l to Henry loonutns. having b...., eniplove.l to stato th. .enora avera,o charges and allowances as bctwcn t' o owuH-s an. underwriters of said ship and cargo, on rnak n' np the saul statement to apportion the aforesaid char.":; 1. s thereo bdong, and should be dei.ited respectivelv to ri;;!';;;; "T .^'<:'--^-tosuchdetenninatu.n. H shal hav(, authority to exanune any person brou^h ''"^-- !-•" npon oath, and shall exercise all the usna l^owers of a releree in this Court. An.l upon his repor i -K. o^,ccted to or. ^objected to. upon V.san.:T^^^ n hhed or confinnen,.s on the Gth Septcmlm; A.D., 1SK> ■ ().. reading the report of Henry Yeomans, made' in pursuance of the preceding decree : It is ordered th^tuh port he confirmed, and the charges upon said vess 1 an argo. and costs applicable to both, including the salvo •a s s having been adjusted and settled, anct includ d a u Import as chargeable on both; It is further order d ^ at the sum of $1,178 02 be paid into the registry on a un the. cargo pursuant to the undertakings givLiu tiiat behalf and now on file." N. H. Mfaghkk, for salvors. Shannon, Q.C, and M. B. Daly, for vessel. IJixciiiE, Q.C, for cargo. :• f 132 VICE-ADMIRALTY COUUT. THE HP]IN])ALL. (Demvekici) September qth, 1S72.) Salvage of Life.— A foreign ship becoming disabled in the Gulf of St. Lawrence, h»r crew were taken off by one set of salvors, and safe!-, landed at a port in the island of Cape Breton. Subsequently another set of salvors fell in with the ship and brought her into an adjoining; port. The services in both ca.ses were highly meritorious and rendered while the disabled vessel was about sixty miles from the nearest land. HM, that, both sets of .salvors were entitled to salvage, and a sale ot the ship having been effected for ?2,50o, the Court awarded the sum 01 St>6o to be divided among the salvors of the crew, and ftyoo among the salvors of the ship. There are two sets of salvors in this case, one of the derelict ship, the other of the master and crew, both of them for meritorious services 1. ndered in good faith. The principles applicable to the former are well imderstood in this Court. The latter being a new question, 1 directed it to be re-argued on the tUh instant, some of the cases not having been cited at the tirst hearing. Life salvage is not recognized by the law of nation.^. Its lirst appearance in English legislation was in the 1 and 2 Geo. IV. cap. 75, sec. 8, which enacts in case of a ship, that salvage may be tiwarded " for being instrumental iu saving the life or lives of any person or persons on l)oard." This was acted upon apparently in the derelict case of the Queen Mab, 3 Hagg. Admirality •2-12, by Sir John, NiclioU, in 1835, but was held by Dr. Liislihir/ton, in 1842, in the case of the ZephyrnH, 1 W. Rob. 321). not to extend to the Admi- ralty Court. Then came the Merchants' Shipping Act of 1854, sees. 458, 459, 461, and the case of the Johannes, iu 18G0, 1 Lush. 187, when Dr. Luahington held that this Act. in the case at least of a foreign ship, gave the Court no jurisdiction over salvage of life only when performed on the high seas, at a distance of more than three miles from the shores of the United Kingdom. This doctrine he founded on liis own decision on the ZrAlrerdn, Swabey, 9G, in ISjG, and upon the case of Cope v. Doheiiy, 4 Kaye & Johnston, THE HEINDALL. 183 383 9. 90, to which the case of The General Iron Seven r S" J- ^"""-'"'"'' 1 Jol'"«ton & Hemm. 192. may now be added. ' ^ The above decision in the Johannes doubtless led to the Impenal Act of 18G1, 24 Vic. cap. 10. sec. 9. permit L' E^^r rf '/"■ *'"'• ^^^-'"S «f life from anv" Bntsh ship or boat, wherever the service may have been rendei-ed. or from any foreign ship or boat when sc^ vices have been rendered either wliolly or in part on Bntish waters. The 25 and 26 Vic. cap. 63, sec sg'^make" provision for treaties with foreign powols aild has no rel .on to he cause in hand. The Vice-Admiralty Act of 18 , , : f ; T^-- ^^.' '''■ ^^'' «^^^^ *" "'^«« ^^o"rts juris- a ction for "claims in respect of salvage of anv ship, or of Me or goods therefrom." There is no limitation her; Z to the nationality of the ship, and no distinction "tw salvage services rendered on British or foreign waters b^ am of opinion that sec. 10, sub-sec. 4, as above dLd mu e construed in analogy to the Acts having force in mted Kingdom. The Imperial Parhament could nev i-ave in ended to confer a larger jurisdiction over foreZ vessels to our Vice-Admiralty Court than it has given toX High Court of Admiraltv. (See the case of tbf 7 ; Lush. 306.) ^ ""^ "''' Annapob,, Jn this case we are dealing with a foreign ship the naaster and crew of which were taken off by the salvo un the ship abandoned in the Gulf of St. Lawrence abo, ^.xty m. es from Glace Bay. in the Island of Cape Bietol biought by t^ie second set of salvors into the harbour o <.abarus Here was a life salvage rendered to a flic" '■mdmg 01 the foreign crew in safety on British soil under arcumstanoes which strongly recommend the cla m o the ah-ors for a suitable reward. I pay „o regard to 1 ged agreement, which the captain of thei/.,L« den md which, hough admitted, would not bind his owners f the law would not P.u.taiu it. Independently of tTe a'r^e -'nt. I confess I should have had great difficulty ,^ deaCg :■';'? 184 VICE-ADMIRALTY COURT. with this case, had it not been for the decision of the High Court of Admiralty in the Ulllcin III., by Sir llohcti I'hillimore, in August, 1871, reported L. R. !), A(hniralty, 487, and 25 L. T, Hep. N. 8. 380. This was a Dutch steain vessel, part of whoso crew and passengers were picked up from lier, when on lire, by the Flora, a French vessel, and transferred from the latter to the Smrpin, a Jiritish steamer, and landed in safety. The service done by the Flora was beyond the three mil*; limit, and the question was whether, under the Act of 1861, she was entitled to life salvage. It was contended that she was not, because the saving of life was the joint ctfect of her services au.l those of the Scorpio; but the Court riijected this view. Her counsel urged that had the Flora chosen to land her passengers herself, as she might have done, she would undoubtedly have been entitled to salvage reward ; and although the Court did not assent to this in express words, the decision, I think, admits it. The Judge says : " The question is reduced to this point. Do the circumstance^! shew that the services rendered by the Flora and the Scorpio were so continuous that these of the Flora may be considered as, wholly or in part, rendered in Britisli waters. The services must have been rendered to the per- sons saved (tha,t is l)y the Flora), either wholly or in part within British waters, and I am of opinion that they were not." It appears to me that had the Flora rendered these, services in part within British waters by landing the per- sons saved, she would have been held entitled to salvage. And this having been done by the claimants here, I decree in their favour, and have awarded them salvage with coHts as follows : — Statement of Charges and Salvage. Ship sold for 92,700 00 Charges upon sale, etc 140 00 Net proceeds ?2,5()o 00 Salvage awarded for saving the lives of the master and crew JCGo oi> on of the Higli by Sir llohcri !), Admiralty, a Dntcli steaiii ivero picked up ich vessel, and '•pin, a Jiritisli ce done by the d the (piestioii was entitled to IS not, becauso ir services and ted this view. 5en to land her •nu, she would ) reward ; and express words, ;e says : " The circumstancort Vlora and tlu^ lie Flora may red in Britisli red to the pei- olly or in part that they were rendered these nding the pei- bled to salvage. : here, I decree /age with cont-i . . .92,700 00 ... 140 00 ...?2,50o 00 and ... »66o ot> TWO BALES OP COTTON. JgQ Distributed as follows :— The vessel « . .„ I he master I he mate Five men on board, at 850 each. . .'. , . 250 00 Salvage allowed for saving ship, to be equally dis- tributed among the five salvors .joo 00 81,560 00 ""'a"ce j,,^o 00 The taxable costs of the Queen's Advocate and of the two sets of salvors to be paid from the above balance. McDonald, Q.C, and Meagher, for salvors. M. B. Daly, for owners of ship. TWO BALES OF COTTON. (Delivered September 19TH, 1872.) fo,fnTd '"'77''''' ??'•""!•"'''''"■' "° °""^^ ^»'P^'^'-^J to Claim goods found derelict, and their value was not great. Held, that the salvors should have the full amount they realized after payment of necessary costs. From the aiKdavits of the salvors, seamen of the schooner Dusky Lake, it appeared that on the 18th of Jkfay previous when about thirty miles south of Cape Canso light prose- cuting their business as fishermen, they fell in with two bales of cotton adrift. They succeeded in getting the bales on board and took them into the port of Canso, where the master reported them to the Custom House officer I'ro- ceedmgs were thereupon had in the Court of Vice-Admiraltv, and the Court made a decree as follows :— "On reading the report of the acting marshal that he could not obtam the appraised value of said bales at the sale thereof, arul the whole value being an inadequate 130 VICE-ADMIBAI-TY COURT. reward to the salvors, it is ordered that on their proctor l)aying into the llegistry the sum of $99.41, being the costs computed at the lowest rates, the said two bales shall be delivered by the marshal to the salvors or their authorized ugent to be disposed of, and the net proceeds equally keeper of the lighthouse, the Court awarded as follows :— Value of vessel and cargo agreed upon 82,250 00 Awarded to Steam-tug 8450 00 " to Lighthouse keeper 2500 $475 00 VICE-.VDMIRALTV COUKT. 187 jhthouse-keeper THK SYLPHIDE. (Deuvkkei) Janharv 30TH, 1H73.) The barque Sylphide, of 440 tons rc-istor .nll.l f tiottonburg, bound to Boston laden wit? \ '" on the IGth July. 1872 • on tb .'^l f A . ""'^^ ""^ ""''"• J', io< - , on the dlst August she enconnt..i-<.,} a heavy gale m latitude 43« 82', lon^^ 52" 0. .l.-as ted by it, and abandoned by' n^ast:. nd r ;. T want of sails and rigging, on the 8rd Sentc mb er nf master and crew were taken t<, the United stf, fhey came to the Strait of Canso and 1 1 ''' "'^'"'''' after the vessel had been bro^' " th r "t '"r""" Hired n"nh>, (XT f • ^^' ^"^' schooner Anucnalu> (u tons register, sailed from Gloucester Having .m board a crew of twelve men nil +.1^ were prppfwl 0^.-1 . I'a-n.cii m low. Jury masts - cause .,„„,„ ,e .,„„aea .„ '.r/eXT- .^ X:! 188 VICK-ADMIIULTY COLIIT. argument, and on the !50tli of January, 1878, the followini. dicreo was made : — Viiliiiitioii hy Agrcnnent. Ship as she lay $8,ooo <>o CarKO and freight 57>o*'" oo SdjiOOO oo S(ilviii>i- iiu'urilitl Alfred Whnlcn : To owner for loss cf fishing voyaKe •s.ooo oo To the master 1,250 no Six men on Sylph'ule. %tjo each 4,500 00 I'ive men remaining on board Alfred Whalen at I450 each ,^.250 00 fi j.ooo 00 With costs of suit to be taxed. N. H. Meagheu, Proctor for underwriters. Shannon, Q.C, Proctor for owners of cargo. McDonald, Q.C, Proctor for ship. RiTCHiK, {^.C, Proctor for salvors. THE WE'RE HERE. (DEi.ivERiii) ^wii March, 1873. Collision. — The We're Here i una to anchor in the h.irliour of Halifax on the night of November 5th, using only one anchor. On the oth the Ben Nevis anchored beside her, and as it was alleged in t, 10 close proximity. On the inorninK of the 7th both vessels were apparently securely moore I, and the captain of the former went ashore, leaving six men on board. In ;!ie course of the morning a gale sprang up, and the We're Here not beinj adequately moored she collided with the Ben Nevis. The men on board the former vessel did not act as experienced seamen should have done under the circumstances, and her captain made no attempt to get on board, while no negligence or want of seamanship was proved against the iStn Ni'vis, THK WK'nK HKRE. 189 Held, that judgment shoul.l be enterc.I for .i„. ii », ■ , damages and costs. ""- '^"* '^'"" f"'" 'he Strictures made on evidence received in tl.e Admiralty Court.. This case ha.s arison out of a collinion botwoett the I3en Nnns, a merchat.t brigauti..,, of 233 tot.s. a.ul the JJVV Ifere, an Amencan fishing schooner, of r,ii tons. doin. con- H.derablo dama... to botlt vessels, on the 7th o Novem ,• last, off George's Isla.td. in the harbour of Halifax. The warrant was tssuod on tlte Oth, and there being a tnistake m the nth Ott the 12th, I ordered each of the parties to bring tn Ins prelin^inary act, and the proctor of the n'o Tist N rV" '•; "' •" l-titio.t,lhich was hie on he 18th November. I gave this ordcT under the rules of 1H.0, ,„ place of proceeding under those of 1H32 ^Zel and proof, but would have been equally well satisfied, a he parties consented, as in the case of the ir...-/ / h 1867, to have put in their evidence upon the preliminiry Court IS, that the pleadings are of little nse except to Hwell the costs, and rather hamper tha.t promote u'enU of justice. The rule, of course, in this Court, as in t e other Courts with whose practice all of u are mor famihar. is that a p,. .. Unuul by his pleadiii^s-tTH painful to a judge, when a material fact is wrongfully ad- mitted or wrongftdly shut out by the carelessnesl it may be, or the imporlect information ofa practitioner. Thear-ni- ments, therefore, addressed to me in this and in otli r 17,'. '"^ "" ^'l^''^'' -l™'--ns of defendants in less avail than the evidence. Another motive I had for preferring an act on petition was the refusal of the nliintiff de endant, who was about to leave the Province, this Court Courts o Common Law. or even of Equity, in preservincr -^ receding evidei.e. '-It is a wei;^,.no;n ^h :^;"^ sayslJi. Lrcslungtou, that eminent and distinguished jurist 140 VICE-ADMrRALTV COURT. whom we have just lost, " a principle confirmed by authority, that Courts of Admiralty are to proceed Icr^ato velo, that is, with the utmost expedition. In order to carry this prin- ciple into effect this Court has, both in public matters and in civil suits, been accustomed to receive evidence which would not have been admitted in other Courts — for instance, affidavits sworn almost in every way before Justices of the Peace, commissioners in chancery, and so forth, and, in ex- ceptional cases, even evidence not under oath." The Peer- li'sa, Lush. 41. Murray's affidavit was filed November 15th; Ingall's, a material witness for the plaintiff, on the 18th. The other witnesses for the defendant, on the 28th and 29tli, and the plaintiffs on the 4th and 5th December. The practice of taking affidavits, authorized by the Rules of 1832, in pro- ceeding by act or petition and in cases of derelict, was thus pursued in the ease in hand, but greatly improved by the system I have recently adopted, in which every deponent in Halifax is subjected to a cross-examination at the Eegistry, and the value of his evidence proportionably enhanced. The whole of the evidence under this practice being dis- closed, as it proceeds, to both parties, which is more in analogy with the Rules of 1859 than under the old system of secret examinations and publication after the evidence is closed, the defendant's proctor applied upon affidavit for leave to contradict one of the plaintiff's witnesses, which I per- mitted, upon the point indicated and no other ; and further affidavits were filed for the defence on the 13th of January. Bail having been given, the case came on for hear- ing on the 17th January before me, assisted by Captain Scott, of the Royal Navy, as assessor ; and my time having been completely occupied in the interim by the business of the Supreme Court, I have been unable till now to give judgment, and have marked the successive stages of the cause as a guide in other cases in the future. The We're Here came into Halifax harbour on the night of 5th November, and came to an anchor inside of George's Island, using the starboard anchor and about thirty THE we're here. j^^ 6th of November .r„ l' o'l"l,,:"Z'T"- "" "'" uone„^e,„.;;j;-i;:tst;:tT;:™; particular in charge, „„., nZ^Z^JrZ"lZ '" small vpHspla +1,-^,..,. usual m tlieHe anchor hangi„,, to„, .,,ep i owli? * f rH M '"'"™" cable attached to it, „1, rcLy to l" t™ ' , I""'""" °'' thiB moorin?, which m, lHu , ""Bisieney „( -ther, b,,t ™ ,„iL rabfe't, a^^lf la^r^;':^ ;rr::ref:':r-^^^^^^^ the fallin- of fh!l 1 ' ^'''■'' '"' ''^''''^ a^^^ount of the h "nd 7th oTZlTl "" ^P^^^^ °^ "- -"d on ii9-574 ; at 6 o'clock 29V7 1 I l ^ "" "'" ^*^' ^* ^''^■'^ night, 28-850 -Hu J, ' ^* ^ P-°^-' ^«"^70; at mid- al;south west 7 J,:' ""'] '"""^'^"- «" *'-" ^^l^- ^^t . at noon, scu.tr 12 .!^^ ''J ""' = ""' '' '^""^h, 8 miles ; gale. The gale bejran pf <5 in ^'^^'^^ '« considered a 10 o'clock. The S h L '"'"'^ ''^' '* ''^ '"Shest about -.irr,r-;--rnerr£a:: 142 VICE-ADMinALTY COURT. his ship. Without liolding the captain of the We're Here to an inspection of the barometer, which he might not have thought of or had access to. it was unfortunate that,' with the wind blowing, from 3 to (5 p.m., 22 miles an hour, having risen from 8 miles when he went ashore, he should not have made successful efforts to resume command of his vessel, when the collision might possibly have been averted. For, between 5 and 6 p.m., she drifted, when after the shifting of the wind, she had probably fouled her anchor, and the men on board having payed out 30 fathoms more chain, but not having succeeded, according to the prepon- derance of testimony, in dropping the second anchor, she collided with the Ben Xerin, cross-wise upon her, so that her jibboom and bowsprit were between the foremast and mainmast of the schooner, near midships, and so con- tinued for about two hours, and till the foremast was cut by order of the B(^u Nerix. The accounts of this transaction given by the two parties, as is usual in such cases, are very contradictory, and a Court must be content with taking the salient points of the case and weighing its probabilities. The master, mate and two of the seamen of the lien Ncrif estimate the distance at which they anchored from the We're Here at a quarter of a mile, in which they art; contirmed by Ingalls. The master and seamen of the We're Here speak of the distance as 300, and Murray, 200 feet. Owen, in his affidavit, calls it 300 feet ; but, in his cross-examination, he says : " The Ben Nevis was anchored about 300 yards from my vessel on the morning of the 7tli November." It is remarkable that, though he was w- examined by his counsel, under protest, no attempt svaa made to reconcile this discrepancy ; and yet I cannot help thinking that it originated in misapprehension. Distauees are matter of conjecture measured by each party too mucli in accordance with his inclinations and his interest, but the weight of evidence here is clearly with the larger space!. So, also, on the other controverted facts, the time of letting go the second anchor of the We're Here, the mooring of the Ben Necis, the conversation r^ between the two as they THE we're here. 143 apin-oached, and the other circumstances of the case which There are two material cirenmstances here to whf,slu,,ton held the owners li;ble L 7; ^r ' '" tlie .- ^ - Ar\ , '., "^^'''' ^'" ^* *« '^ ^"estion for ''le • ^.'., Masters whether it won 111 nnf I. 1 ""^ '"'^ tohw\r:;nri:t^rri:sh:;^^^^^^^ Her Majesty's ships. I„ the JUkni,,, Lnl t niZ ' w*; " I know of no antlX L "£ t„ „"'"'' "'"' or insfuction, to Eegistra™ ofVto^" .'."% '"""•"° '""' tainly no such auHim.;f,r „ i /^"ippmg. ihere is cer- .»t, w doe^a p '*: ■ trirr' ",?°"'' ^"^ ""' Kegislry, acting unfc,. q,,, , <"^I"=«'a"y an officer of ~o.«j;o.o/,7;t6'rh iirof^Ltti ''»'-T gage of a ship shall be in n, "V , ®^^'*"^o^'t- Schedule theeto. or as el h . ''^ '' ' '' ^" "" will permit. It shoL I T- .^''''' ^' c"-cumstanceH of registry and e ' IT ? *''' ""^''^^ ^"^^ ^^^ ^ate and nuist brexecl, t; r measurement and tonnage. literal deviation rlTflTo?' "^T" ^ "^^^'^ a clencal mistake, will not vS/?T!'"" °^ ^ ^^*^' "^• 85 E. L. & E 218 fiif r ' f • ^^'^^'"'^ ^^S^^t 7906. HthsectionftheMe^haLZ T"''.'*'"^ ^^"'^ if a mortgage ^ontn^I^^^^:;:^'''':^' f ^' and particulars prescribed Ld a" , th! """ I>v or in pursuance of tb.e Merchant Shnn" . . ^'"'^''''' registrar sha'i be requiJod to 1 f.^'"" ^'*' ^^^^ '' "" express directions of c^mis one" t"^* ''' therefore, for a registrar nflh . Customs. It is wise, ing or in erferLl V th "^ '^ '^'P''^^' *« abstain from indors- according^oTe si ute T""n ''"' ^^ "°* ^^^^^^ ^--'^-^ «;.ip bef^e 4it?^::d betrb^fitd:^^^^^^^^ ^^^^-^^^ of deeds, under the Revised Stnfnf "'' ''^''^^■^'' Custom House, whicirr ^\:i ^ ^J- f [f ^ present case, notwithstnnrUn^ +i ^ "' ^" ^^'^^ »n.l the naa,; of co^S ^f/ ^J;:^ l™"' H-dlon, Custom House offipp,- ..f„i ^''^f^^^' ^ ^^^Iieve that the wa. manasedln ?:„ 1:.:,^ ^^ ,;;f ■ «;•■' "- -atter fed to all the difficulties i„ hr,ui t n 7' ",'"' ''"" tnon- that DeLi,,,,-', „, T , '' '^'■^'''''" '''■' "'"t » "gular mortoa-eTeta,' e\! , ^ ?" '° ''"" '""'="='' °" an.,, a. all eve,°:ro:;T?e"r::,t^„;^r„t.::^- *'■»»»• iit;Kuowiedgment Clear and formal, that.it could not be *p«lli 148 VICE-ADMIBALTT COURT. Ill disputed. Under the mortgage as it stands, I am of opinion that it was wholly ineffective to pass title, and that the sale to Collins, under that mortgage, and the subsequent registry are nul? and void. The case of Bell v. The Bank of London, 3 Hurl, and Nor. 730, differs from it altogether. There, it is true, the mort- gage of the ship was dated and executed some days before the registry, and so appears, as iu this cape, on the face of the transactions transmitted to the chief registrar of ship- ping, but the only objection to it in point of form was the des- cription of the ship as the City of Bitrkelles instead of the City of Brussels, which the Court held to be substantially the same. What is to be done, then, with this case, so as to protect, if possible, the interest of both parties ? Collins I put aside altogether. He has either a joint-interest with DeLisser, or is indemnified by him, or has a remedy under his cove- nant. He purchases for $980 from a mortgagee for $1,000, the purchase discharging the mortgage within a trifle, and then it is agreed that the ship shall be held subject to the mortgage, an ingenious contrivance, but involving an absurdity which no Court could sanction. Handlon takes the registry in his own name, for his protection, as he says, while admitting the large advances and the rights of DeLisser. It is impossible to award him the possession of the ship without securing DeLisser ; and if he had possession he could neither sell nor mortgage till the register is cleared. DeLisser is a mortgagee, not as a stranger for an ad- mitted debt or a definit oul lay, but as a part owner in security for his advances. Were I sitting in the Supreme Court, with Equity powers, I should have no difficulty in framing a decree directing an accounting between the two parties as joint owners — a sale of the ship, with a convey- ance from Handlon, after cancelling the illegal registries in favour of DeLisser and Collins, and an apportionment of the net proceeds of sale according to the adjusted rights of Handlon and DeLisser. n THE W. E. WIER. 149 Court of Admiralt^animnliodtl/f.^r' ^^' ^^8'' Now, the Vice-Admiral "a f o;f86?^^''^ already said, the sa.ue Cd tl'flZTmi T / 'T the express powers in the latter At Tho f' . r '"''*' 'lo, as I think, is to order an account hZ 7"^ ^ '""'^ having no Master in this CnuT.T " *^' ^''^8^^*^^'^. one. I can neithe c^l , Z';. " V'^ ^'''''' *« ^PPO-t T.e parties, in fact. C gc;;in;:rrr;r^.^^^^^^^^^^ ney Handlon .""^ ^'^^^"" -«* '^*« * right one ine\, uandlon, I mean, and DeLisser shoiil,? n^^ . accountant or referee, to ascertain f^. T^'''''* *" them respectively in resp ct" tt s,i 2 i^"^ *« these amounts fairly and equitlll /hV , ?f ''^•'"'*''' with Collins in clearing 1 re^! ' 'nd's n'.f ","^''" the best advantacre Tl,« f ' ''^" *^'^ ^^^P *« apportioned a online to , ''''''^'^ '^""^*^ *''^" '- ducting the coTo tl suf I tr'"*'nr^""^' '''''• ^- niTCHiE, y.c, for promovents. Shannon, Q.C, for respondents. THE THREE SISTERS. (Delivered October 2 . h, 1873.) heavy gales and w;: compelled' to7ut bi'V" f '^'t ''^''°"' ^"-"n'erel ---da.. ...4.^^cSd:s::::'-i-t 150 VICE-ADMIRALTY COURT. totally unfit to proceed on her voyage unless refitted and repaired. The owner was then at Halifax, and being unable to procure funds, applied to one G. R. F. for a loan on bottomry, and G. li. F. advanced the surr required. The vessel was already mortgaged to G. P. M., in Quebec, but of this fact G. R. F. had no notice. G. R. T. took proceedings to recover the amount due on the bond, .md was opposed by G. B. H., who set up the priority of his mortgage and denied the validity of the bond. Held, that all the ports of the Dominion must be accounted home ports in relation to each other, and therefore that th^; bond could not be enforced in Admiralty. Strictures on the want of jurisdiction in the Vice-Admiralty Court, and the consequent failures of justice in the colonies. This case comprehends a variety of questions to be dealt witl) in their ordtr. The first step was a warrant issued by Mr. G. R. Frith on the 21st of June, as the holder of the bottomry bond for $1,900 with 10 per cent, interest, dated at Halifa.K, 24th February last, and executed by the master with the written assent of Mr. G. F. Downs, the registered owner. This was followed up by an appearance on behalf of Mr. G. B. Hall, a mortgagee claiming priority of the bond, the mortgage bearing date the 20th August, 1872, for the sum of $1,800, and being recorded on the 21st at Quebec, where Uie vessel is registered. Then came claims for wages by the master, mate, and four of the sea- men, and lastly a claim of salvage, the vessel having been driven from her moorings, in this harbour, in the storm of 24th August. Of these questions that of the bottomry bond is by far the most important, both in its effect on the parties of this suit, and as involving a point new in this Dominion. Mr. Frith having gone into th^- Insolvent Court, I required his assignee to intervene under the Act of 1869, which lie accordingly did and became the promovent in this suit on the Ist September. It was then agreed by the proctors of the assignee and mortgagee to waive any pleadings or evidence, substitutinj^ therefor a case setting out the facts, which was argued before me on the 18th of September, and the other claims having been argued on the 18th inst. and fully considered, 1 am now able to give judgment. THE THREE SISTERS. 151 foJows:-' ""^'"^ '' '""''''^^ '""'^ ""''' ^'^^' - as iralty Court, anil Halifax, September 17, 187^. IN THE COURT OF THE VICE ADMIRALTV OF HALIFAX. I73. In re " Three Sisters.' mg been very much mured in her hull =.,,.1 .; ■ j "'"'lax, nav- been at sea for fortv-three Htvc r>„ i, ■ . '^c "i ncr naving .e. upon her and^ r;^Ln?to"Lra:;i^:';;-rern Zy voyage w.thou. be.ng first refitted, repaired and revictualleS ' Upon the report of such survey being made, the Three Sisters beine at that t.me under penalties to complete her voyage to Cow Bay anUhe master and owner (who had accompanied the Ihip on her aitemn ed voyage to Cow Bay and on her return to Halifax) bein^ „n.M , *^'"P'^'' funds to put the said vessel in a condu on"o pt eS o„ her slj T"" one Gilbert R. Frith (the bottomry bond h'olderin ^hL sui IZ an The sum of »i,ooo being then found to be perfectly .nadenuate for .h. h add.t.onal necessary funds, Mr. Frith agreed ,0 advance a fu .her sum 0. exceedmg Jgoo, to be joined with the said 8r,aoo in a bot cm y bon"' Cow Baf!r'?''°" °'.\ '"" '^"''^ '^' "^Ses on the attempted voyage to Cow Bay, the advance of 81,900 was actually made for sails repass InJ other necessaries, without which it was impossible for thP rl' T ^ go .0 sea with any reasonable hope of safety '" ^""'' '° Mr. Frith was not aware, until after he had taken action on the bond that any one held a mortgage on the shin hnf h, 1 k ' ^,..„A u it. ^ ° ^I'Pi out had been given to unrlfr exISid!';::^^^::;^^'^:----' jt^--^ -^ the bond C^eorge B. Hall of QueCfor ■th;;u-;;^ oMt sl r ""'''''''""' '° °"^ date the 20th day of Au^usr,R„ ^ . u ' ^ "^ '"^■•'g^ge bearing aay ot August, 1872, and which was registered on the 21st 152 VIOE-A.DMIRALTY COURT. day of August. 1872 at Quebec aforesaid, to which port the said brigantine belonged. The amount secured under the said mortgage is still due and unpaid to the said George H. Hall The subject for argument is the validity of the bond, J, Harvey Frith. Proctor of the promovent. C li. Uullock, Proctor of Geo Hall, the mortgagee. I have to add that, having inspected the certificate of registry, I find that, according to the practice 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 to speali for himself) that he misled Mr. Frith by giving him to understand there was uo incuml)rance on the vessel. A telegram to Quebec, to aBoortain the fact, would have been the most prudent course, ls it turns out that his confidence was misplaced, and that either he, or, rather, that either his creditors or the mortgagee are to suffer. No question has been raised before the Court, on the form of the bond, the purposes to which the money wa.s applied, nor the premium, in none of which, as I think, nor in the good faith of the lender, is it assailable. It is truo that the advances were made for a new voyage, and that something might have been said on the necessity of so large an advance, which amounted, as appears by Mr- Downs* memorandum, annexed to the bond, to $2,190, exceeding by $290 the amount in the bond. But all this was done under the eye and with the approval of thr owner, whose bond in fact it is, and it would not lie in his mouth to question it. But here we have a bona fide mort- gagee, to whom no notice is given, — nor is any notice required, if the bond be valid — raising the main question whether such a bond is legally binding, given on a Domiuion vessel, in a Dominion port. The leading case, insisted on by both parties at the hear- ing, and cited in all the text books, is that of The Royal Arch, Swabey's Rep. 269, decided by Dr. Lushington in 1857. That vessel was owned in Nova Scotia, and it was held that a bottomry given by the master, with the assent of one of the owners, in New York, was good, and that a ;■: Jl THE THREE SISTERS. 158 mortgage would have been postponed to the bond, had not t e imo been extended by a subsequent instrument o whu-h no preeeden could be found. But this decision was founded upon the fact that NVw York was a foreimi ,)orf *;it.st..e." said Dr. Lns,in,,>n, -that NewY rifnot distant from Nova Scotia, but though distance may be a -.mportan where the consent of the owner has not In obtamed, yet I do not think such reasoning apnl L to cases where such consent has been given " " ri ' fl b.st considei;ation I can give this question." he add d' "an assummg the ordina^^ . ,nsites. such as wan^ f oredi. necessity, etc.. to enst. f uu± that such a bond , , . , A"''" ue a - the master, with the consent of th own r to grant a vahd bottomry bond upon a British ship lying i^ a tb? Court" ' H H "" "^"^^' ^"^^ '^-'^- '^ '^ «-W i" thi Court He then gives his reasons, the first and most materia o which is. because such a bond would c^a e vahd. wha may bo termed a secret lion on the sh p w il out what the law would consider necessity, and the cot eqi^nce would be that subsequent (an/. I might Id This doctrine is affirmed by the Judge in the case of tbo Heligoland, Swabev 491 i.i is^o i i H,of +1 .. .. ' °^^' ^^'^^^^ ^e says : " I think hat the authorities show that if the owner of a B S hip m England were to raise money upon a bottomrv bo^ resS!^^""!?' r "% V^" '^ observed, proceed upon the restiicted jurisdiction of the High Court of Admiralty, which 154 VlCE-ADMlRALTY COURT. the Imperial Act of 1861, the 24 Vic, cap. 10, though it has largely extended the jurisdiction on other heads, has not extended on this. In the American Courts, probably, said Dr. Lnshingtori, a wider jurisdiction is conceded, and he cites the leading case of the Draco, before Judge Story, 2 Sumner, 157, where the validity of a bottomry bond by the owner in the home port is upheld. I may add that the American Courts are much divided on this question, as appears by the note in 1 Parsons, on Shipping and Admiralty, fol. 183-42, 1 Conk- ling's Admiralty, 275. Besides the intimation of the Su- preme Court of the United States, in Blaine v. The Charles Carter, 4 Cranch, 328, there are many cases supporting the view that there is no jurisdiction in Admiralty on a hypo- thecation by the owner in the home port. And nrtwith- standing the high authority of Story, J., and the 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 jurisdiction than the High Court of Admiralty in England. This question I examined at large in the first decision I pronounced here, in the case of the City of Petersbury, in 1865, ante, p. 1, 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 Imperial Act of 1863, the 26 Vic. cap. 24, which authoritatively defines the jurisdic- tion of all Vice-Admiralty Courts. The Blatute limits as well as defines it, and in some cases as I have had frequent 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 Halifax or Quebec, be subject to the Hame arrest at the suit of the colonial aasignce, as at the suit of a home consignee in London or Liverpool? The THE THREE SISTERS. 155 English merchant has a complete remedy in rem -The Colonial merchant only a remedy in personavi, which in nme cases out of ten, is a mockery. Why, under the 10th section of the Act of 1863, suh-section 9, should not the same power of ordering a sale he conceded as under the 8th section of the Act of 1861, and the want of whicli power defeated a suitor in this Court of his right in the [a/ '/ "'"'' ''^ possession, in the present year And turning from jurisdiction to practice, why s). mid the cumbersome and expensive forms of the year 1832 with some few improvements, continue in force, when so admir- able a code has been in use in the High Court of Admiraltv since the year 1859. '-^amuait^ As my present judgment will naturally attract some attention throughout the Provinces, I embrace this oppor- ToZfr'T^'''". f '^"*^°" '' '''' Legislatures of the lother Country and of the Dominion, and of mercantile odies therein to these inquiries, which, as my experienc has shown me, very much affect their interests. Taking the law as it is, it is obvious that the vali.lity of this bottomry bond depends upon the relation in which Halifax stands, whether as a foreign or a home port, to a s IP owner m the Province of Quebec. If a foreign port, the bond IS valid,-if a home port, it must be itjeLd. This 13 an enquiry of real value, and as is apparent from •ts application to any Province in the Dominion, of much practical importance. A bottomry bond, to be enforced in he Admiralty and to take precedence of incumbrances on the registry executed within the Province to which the ship belongs IS ot no avail. This bottomry bond executed at Mon rea or at Gaspe, would be valueless in the Admiraltv. bhall It be good then, when executed at Toronto, at Char- lottetown, or at Halifax ? Let us look, first of all, at the Enghsh cases and legisla- tion In the case of Mcndone v. Gibbons, 3 Term. K 267 an hypothecation bond of a British ship executed at Cork! I" Ireland, in the year 1782, was held to be good, " being executed in foreign ports in the course of the voyage " In ■■^immi^iim 156 VICE-ADMIRALTY COUUT. the case of the Barbara, 4 Cb. Rob. 1, counsel said that Jersey, for the purpose of sustaining bottomry bonds,, might be considered as a foreign possession, to which the Court of Admiralty assented. In the Rhadamanthe, however, Dodson, 201, in 1813, Lord Stoivell expressed a doubt of Cork being a foreign port since the Union. And now, by Imperial Act of 1856, the 19 and 20 Vic. cap, 97, sec. 8, " In relation to the rights and remedies of persons having 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, Alderney and Sark, and the islands adjacent to them, beiny parts of the Dominion of Her Majesty, shall be deemed a home port." In construing the Dominion Act of 1867, by which the Provinces of Canada, Nova Scotia and New Brunswick are welded into one, I should have had great difficulty in hold- ing that the numerous ports of these Provinces, with a uniform customs law and tariff, were to be treated in rela- tion to each other as foreign. If so, a bottomry bond of a Quebec ship granted at Halifax, upon the principle in the Rhadamanthe, already cited, would take precedence of a previous bottouiry bond duly granted at a foreign port. But any question that might have arisen under the Do- minion Act has been resolved by the Merchant Shippini,' Colonial Act of 1869, the third section of which provides that in the construction of the Merchant Shipping Act, 1854, and of the Acts amending the same, Canada shall be deemed to be one British Possession. On the strength of this Act, as well as of the other, I am of opinion that all the ports of the Dominion are to l)e accounted home ports in relation to each other, and there- fore 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 tn divest myself. The veaae! liaving lieex r.rrestsd nii 21st and the warrant returned on the 26th of June, re- THE THREE SISTERS. 157 expiration of the two months, when according to the prac- luU and tr *'^ ^"*'" '''''' ^^"^^ ^« Pronouncecu; .lefault and the promovent have a decree for the amount of his demand on the bottomry bond, it or just beZ the expirat on of that time, the mortgagee appe by h proctor and on he first of September^fter hearing bo par les I ordered a sale which was held on the 13tli a" produced the net sum of $1,497.74, now iu the i^ ry 111 ad Iff r*' *'',"^= ^"^'^^^^ ^^ "- *^-- ma shal had left the vessel m the stream with only the port anchor down; and in the storm that aros« on thai ay she dieted down the harbour with no one on board, no sail set, and the starboard anchor hanging ^o the bow. Five affidavits were read at the hearing,Tnd it not intend to go into them minut.ly. Two of these we ' made by Farrell and Campbell who saw the vessel .IragZg -she kedged as she was going down. About 7 o'cf ck Parrel saw her bring up between George's Island and Wis- wel s Wharf, and then Leading N. by E. and riding at ler anchor The la^t time he saw her was about 8 o'clock when she was between Moren's Wharf and the Gas Works -he could not say she was then dragging. Campbell saw erb tween7and 8 o'clock, abreast or slightly south of tL."'^ Woi-ks-she was then swinging head' to Id Ihese two aft avits produced by the salvors are nu te e oncilable with Mr. Hugh McD. Henry's, produced on he ^:' tfn* ^^ ^fr'''''' '' -eoncii: wi^h tl 1 f, , oi-iotK, saw the vessel < rivm" naqf iho wharf by the ^dolence of the gale, and apparentlj C ' - anchor When she had drifted a short distance be'^nd he wharf, her cour-se was arrested and slie rode safe v at her anchor and was ho riding, notwithstanding thta violence of he wind, at the time when he last sawlier nearly one hoiu- after her course had been .o arrested' m the same spot, m nearly as he could judge. Ik- felt sure in the morning that she had not changed during the 158 VIOK-ADWIRALTY COURT. nijj;Iit. Now I attach great importance to this evidence comiiij; from a diHinterested and competent -vitness. That ho HpeakH of the same vessel, ond that the vessel was then riding mMy at anchor as he describes her, I can have no douI)t. That the two MoLennans, who claim as for a moritorioiiH Halvage, went on board and let go the other anchor, 1 holieve ; but that, after their own vessel ran ashoro, thoy wont out in their own boat from Steele's Pond botweon 2 and 3 o'clock in the morning, only two hours boforo tho hill of the storm, and boarded the vessel, then dragging, and Haved her from going ashore, I regret to say I do not believe. They have magnified a comparatively slight, into a substantial service, and I would be justified porha))H in rejecting their claim altogether, as I did in thu «omowliut Himilar 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 liavo now to consider the several claims for wages, and tirwt of all that of Marmaduke Graburn, the master. 1 allowed him to intervene, 15th September, on the petition of his proctor claiming a balance of $2G7 and the affidavit of his agent stating it at $250, verifying also two memorandii said to I'o signed by Mr. Downs, or nving the date when ho took charge and the rate of v i",s at $50 per month, and tho other charging him with payments at Halifax and Trinidad amounting to $300. Siteman and Gastonay, who were examined orally at the hearing, proved Graburn's employment as master since the 1st of December or January, nniking a little over six months to the date of arrest. Thoy failed in proving the handwriting of Downs to the memoranda, and as Graburn has been unable to come hero and testify for himself, there is really no evidence of tho $250 his counsel here claims being due. He is also charg(!(I with considerable sums in an account from Trinidad under hin hand, and by an affidavit of Mr. Frith, which the C'oiu't has no means of investigating, and must there- fore reject this claim, leaving the ma'^- ^ •• ^i his recourse on tho owner. THE THREE SISTERS. 159 Ihe claim a so of Chas. P. Johnson, the mate, is not atnctly proved, but as the ship was arrested on his aHdavi lattei paid the amount with costs amounting to $180.79 I shall allow him that sum. I„ the If. F.SalLl, Lush Adm 69. a person, who had paid the crew their wages by dn^ction of the master, was allowed to stand in their place aadhiB claim was given preference over a bottomry bond' On tuat principle I shall allow the wages paid by mI-. Frith to Handlon, Brown and Ashford amounting to $172 50 being'$T7.25.' ^^'^ ""'"'' ^''"""^ *' ^' ^"' '' ^'''^^ ^'«^^"-' As regards the costs in this suit, I cannot, of course award costs o the bottomry holder, but I do not awani costs against him. I allow his proctor costs on his resist- ance to the claims of the salvors and master, which I com- p te ai^ settle at $35 To the proctor I allow as col |25-on the award to the salvors. These sums, with the costs of Cour are to be paid out of the proceeds l" registry, and the balance to the proctor o/the mortgagee.' J. H. Jrith, for bondholder. C. B. Bullock, for mortgages. N. H. Meagher, for salvors. THE JAMES ERASER. (Delivered iNovEMm.R hth, 1873.) Action dv mastek for WAopt; Tt,» ~-_. r an action against the ov^Lrs X'i^ ''''' ''^^^ bursements and wages Te lad d' ' '"'' '"'""^^ '"'^ ''"" ^^ '^- mismanagement of U vesl/ bu^nroT"!^"'''' '" ''' ^''^«^^' '""'^' ^"" charges against hirn Th;l ^ ^ "^ '"' ''"'""'^" "' ^"^^P^^^ °f 'heir referL b'. th: cZn tot~u^ror^';^;^^ ^^""^''^^''^ ' ''- parties to the suit, and the referee aft r a .ho nn ,' '"'"''''''^'^ ^^ ^oth in favor of the master to the Znt of ' ^ tTd 7^™'"f -"' -P-'e^i -n the owners filed nu.erouso.ec; ClS.;;;;^:-: J^ ^ M«M 160 VICE-ADMIRALTY COURT. Held, that in the absence of direct proof of coll'jsio.'i cr fraud on the part of the master, the report must be confirmed, Kxcpptional rules in the adjustmout of such accounts. Where, n a question of accounts and disbury.;'iu .its, a thoronehly com- petent person has been selected as referee, v.ith ihe iipproval of bo'.)i parties, and he reports therec;i after ■' full exan.ii'.aaon, '.hose aho woo' i take object ons to such a report are bound to prove their objection': : , clear and satisfactory evideiue, for it wiU not be c; .'ruled, unless there be an overpowering case made 'jpainst it which shall satisfy the mind of the Court that it o 't ht not to i;i "h.^intained. This is an action brought /.gainrt the vessel by 'sVm. F. Burke, the master, clain ing $750 to be duo bim for wages and disbursements. It was eomrieiced by warrant, 7th of August last, on which Ihe vessel was arrested and bail put in. The pleadings were conducted by act on petition, answer and reply under the rules of 185i), and affidavits subject to cross-examination, under the practice I have recently intirduced, were made by the master, Standish, the mate, Tltomas Evans, Thomas J. Wallace and J. 0. Robertson. A hearing was had upon these papers on the 30th t? ptember, and none of the last three deponents having been on board, the master and mate furnish the only evidence except the pro- test and accounts of the several voyages from Halifax to Glace Bay, and thence to New York, resulting in a furious storm and deviation imder alleged necessity to St. Thomas ; thence, after a sale of the cargo and extensive repairs, to yt. Domingo, thence to New York, Newfoundland, Sydney, C.B., and Halifax. As the affidavits of Burke and Standisli, and the exhibits appeared to justify these various steps, and the principles of law applicable to deviations, sales and transhipments of cargo, the undertaking of a new voyage and the obligations and duties of a master, have been frequently reviewed, and are well understood in our Courts, I thought it better, before going minutely into the case, to ascertain the facts by a reference to competent parties ; and [ granted an order to that effect on the 3rd September last. On the 20th October the registrar fil-'d his report with the concurrence of Mr. Bremner (altho. 'he latter did not sign it, which the form No. 225 do. i, akj, require), stating THE JAMES FRASER. 161 the fact that nearly all the itpm « in f j,. , , . , accounts having been c ismS ^ T^'^''''^"^"''^^'^^"* panied with char! « o Ta! ' '''':' f^^'^-^^' ^<^<^oru. necessitated a n.osf:hoJ;Tancf"i:^^^ '''''^'''' ''^' the accounts, as is abundantly apJ^rorH"''"" '' from the reasons assirrnprl f/ f/^^''"* ^'"^ the report, -veral items, or "^n Ll^ r'""' "/'■"'""^'"S *^^ adjustment of the J;:;Veroftll^^^ '""^ T lilainliff. Soii.Ol m favour ot the To this report the defendants filed Iwmt,, .1 t.ons, incorporating tl,e .nbstance therpMn" t^l were argued before me under agreement on Ir^n * with the minutes of evidence hi™ 1 .u , °"' '""- wMch, .ith the doeum::r?„'ttLt ha;?^' 1,°' :oHrra:^rd:tte?tir^°'-^=^^^ court. The princip.tin'iS, ZlT^TviZ '" '"^ Shipping, Story on A-encv Kmif).'« ap ' m ! * ^""^ "" rr7^,;ed;Calo''rp::;;:;:::r- r-'"^^^^^^^ e^pressior, :^ZX: e^^.S," lit' '" "T "'° *»« ..sHfy the master in «„ del^lSL^ ie' "Tf 'rilT^f aeviation to s" Tl o '! A Tl' '''''""' '' ''^'^^^'-' v., p, ^^''"'^'' ^^ I ^^^^ already observed, 12 162 VICE-ADMIRALTY COURT. there is no evidence whatever of the voyage on the part of the defendants, and Standish was stated, however truly, at the hearing, to be in their confidence. Now, in his -affida- vit of 10th Septeml)er, after describing the terrific storm which overtook the vessel after sailing from Glace Bay, January 24th, and forced them first of all to take refuge in Louisburg, the extreme sufferings of the crew, and the dangerous leak against which the pumps though kept con- stantly going, scarcely made any headway he declares that the safety of the vessel and the lives of the crew were in great peril, and rendered it absolutely necessary for the master, in the exercise of a wise and proper discretion, to niake the port of St. Thomas. In his cross-examination, he saya that they did not try to heave the vessel to, for she would have sunk on account of the ice — that there was no use in attempting to go to New York, as she was not fit to face it. She might have been taken to Bermuda ; they made no effort to go there, of which the defendants, perhaps with justice, complain. But strange to say, when their counsel had Burke under cross-examination, in his own voluminous affidavit of the 22nd September, he was not interrogated at all on this point, though he describes the storm in that affidavit, and declares that finding it impossible to male New York he was compelled, for the safety of vessel and crew, to run a more southerly course to St. Thomas. How is it possible, in the face of such evidence uncontradicted, to pronounce the deviation a dereliction of duty ? On the question of accounts and disbursements, a mer- chant of large experience, selected with the approval of both parties, and bestowing his best attention on them, is much more competent to decide than this Court, and accordingly the rule in England is, as laid down iu William's & Bruce's Admiralty, 285, that those who take objections to such a report are bound to prove their objec- tions by clear and satisfactory evidence, for the Court will never overrule a report without being perfectly satisfied that upon the evidence it ought not to be maintained. It is not to be overthrown unless there be an overpowering case THE JAMES FRASER. , „„ "'l:"''^- "■' """" "' "- Court .,a. Justice i.„. Admiralty, ^arltibotStl."' "" ™«" '^°'"-' »' printed p„,o», „„ieU wr „ S ilT's''";? f "" '""'^ »i»rf, and meets some of Ih, I" [■ ''" "»'""t /'*,7ft. master's cause of ZZl „ ,,' fj^f """ ''™- " »as a ™ntin«. But the z::::^'z^rizTrr' °' experience in the adiustmont of ^\ ' ^'""'^ ^reat their owners, that as 1 g ne al rule f, ' '''^"'"*^ ^^^^ larlv. or rather informanX and IZ T" ''''' ^''^^■ to require masters to pro uc ' vol . ''"' "'* "^"'"^^ Hients. He added that rat of tZr'' "'' "" "^^'"^ l'^^'" accounts were unvoucl e^d^Lt t^- t CVT *'" "^^*^^'« most expensive port and I ?„ . , /"^ "'*"''«"^^^ ^^ Captain Burke, in L^nores^M ^''^' ""'"'"^^^ "'^^ have sanctioned, without" ttelLrr' '''''' "°* commissions of Lamh & Co and tt ",' ''^^^""^"lated services not specified when i^T "^^^^^^'^^ °f ^100 for Still there is no room to ^utnL f ^-''^ ^^^'^ '-^^^I^^^'' following the example of Br'r ; "'^'" "' '^^^^' ^"^ Swabe,, 23.1 mus/tntmihe ;::;?:;;" "^^ ^^^^^^' su.t (the material accounts and TLfJtT' '' lie hands of the defendants or their ainh? 'f-'" l>i-ought. leaving each nn.-fv f. . . ^ ''^^''''^ ^''tion objections to the ropoli/ "^ '' ^"' ''^^ ^^^^^ ^« «'e CooMBEs & Thompson, for the master Wallace & Meagher, for owners. ' rpowering case 164 VICE-ADMIRALTY COURT. THE BICHMOND. (Delivered December 5x11, 1873.) Inevitable Accident. — The steamer Richmond, while seeking shelter from a fearful storr- •,-!. ,. ■ •, very possible precaution, unavoidahly ran down and sank a small schooner. On an action being brought for damages, Held, that judgment should be for defendant, each party paying their own costs. This is a case of collision, in which the steamer Ttich- mond sunk the Tomtit, a ballast-sloop, dui-ing the great gaJe of 12th October, 1871. She is valued in the evi- dence at from ^HO to $250, and was probjtbly worth $100, or thereabouts. The warrant was not taken out until May, 1872, and I find that a libel was filed in Seji- tembcr of that yenr, and a responsive allegation in Janu- ary, 1873. Lepositions were taken from 3cvon witnesses on each side, and heavy costs incurred, which in so small a case it would have been wise to avoid. I desire that such oases in future shall be conducted by act on petition and evidence taken by affidavits, not separately, but by as many deponorsts as possible comliiiiing in one. The whole question ;.j whether the injury resulted from inevitable accident or from 1 jgligence, or want of proper care and skill on the part 0' the liichniond. The law of inevitable accident was so fully reviewed in the cases of the Chase, arising out of the same storm, that I n..ed iiot repeat it 'ore. The . lorm was one of the most fearful ever witnessetl in this harbour, as wns proved in the former cases and W Hie present, Mr. Symonds wharf at Dartmouth hxving <)een nearly destroyed, though built of solid stone. 'as seen approaching about one oclock, and the Rich: dh ng had a triai trip on the previous day, and that ..ty appi/inted for her passing inspection as a ferry-boat at the Lennox Passage, Mr. Symonds was THE RrcniWOND. party paying their 166 exertion to „rocur.. /^, i ' ^veather, and used every Cove. Neit^r : dVS'ir' ^'^"r '" ^^^^*'"-^'' was yot up. and tl e na a'in" " " ^''' ''''''' «^^'^^ with eifiht otl^er men uTJ7 """'' °^ *''« ^"""'l^'v. U.e harbour. ...r^ "n rto'urP ''■''''' "^ '"^" they found impraetic^b].. and to 1 .^ ''f'"' ^"* ""« to put into the wharf at uldroT T' 'T ""'^ ''^^ about dark, and where n. R , ^ ' ^"^ *^^^' '^r^-'ved bi.™» .0 the .„s„„' 7 L „ '';":;"'°, "r "'«'""»' engaged. She was securely L™T " ■""' ""' '"«'" the spile save «av „„7„ n , "' "'"' ™ ''"'"'"•eJ until ll.e men „°n boa i^C ac« 1 ',"7 "■/""" »' '"'''"'"'•l. Iteir „»•„ vessel n, I wi,h ' ", -'"""^ "' ""'k *» save «">• other. In ne a ,r^i"° "'"" "'■""'"■'' '" '"J°« ;»ard a *i,l and ''^r S VX^rii a™'';" r " °" them as landsmen would i>„ c , "°* ^'^'^^"^ *« with some contra'urn , yr"^^ '-*' •• '^ave done all ilu^easnlv ';,?,"' ''''' ^^' "^ *« '^^ -•■ Tomn was lyin^Zt '^^ with 1. bead to he%out ward ; "'^"■'"" -^ ballast-boat was pie. of room to the no X '. "' "' ''' '''''' '^'^-^ where she would ha^trtf^ "^^'^-^ *« ^^-vharf. ^-oard of bor when the A../,:::L e^^ i:" Tbis'f 7 Anderson and Plinch tf>sf, 7,- i i ■^'"^' "^^th tl'e wharf, to w lom at Vb "Tl '^ ^''' "^^"" -^^•^' «" proved. M;. Sym dToff rl?T "1 '''''''''''' ^'^^--^ the 2W./i/ fu -ther LtZl TfT' ""'^ ^^"^« *« ^^^e ---orimpractierLi::;e;i;:S.^^^^^ ^Vhat was it then that occasioned the loss ? I will not say that it was the Tomtit 1 see no niiose iuaster evidence of negligence or fanJt of the 'ner was then on ahore. But i^egligeno or fault in the liichmond. and 166 VICE-ADMinALTY COfRT. The excessive violence of the storm and inevitable accident arising ther ^from was the true cause. Had both been in fault, each party must have borne a moiety of the lose. (The Milan, Lush. 404), and each party left to pay his own coHf (Williams and Bruce, 73). But when damage is occa- sioned by unavoidable accident, or there is a reasonable doubt as to which party is to blame, the loss must be sus- tained by the party on whom it has fallen (Catherine of Doi-cr, 2 Hagg. 154). It is to be regretted that the plain- tiff did not take more active measures, which he miglit easily have done, to save some part of his property, having rescued his mainsail only, which he sold for $10. As he has lost all, the Court will not aggravate his misfortune by condemning him to costs, the rule being that each party pays his own costs, though the Court has a discretionary power when it finds inevitable accident. The London, Brow, and Lush. 82, 9, L. T. R. N. S. 348. Judgment for the defendant, paying big own costs. Henry, Q.C, for promovents. RiGBY, Q.C, for respondents. THE TICKLER. (Delivered January 13TH, 1874.) Derelict. — A fishing schooner, while returning from the grounds with a full cargo, fell in with a derelict, and taking her in tow, brought her into port, remaining in possession until relieved by an officer of the Court. A delay of twelve days was thus occasioned on her home voyage. Held, that one-third the value of derelict and cargo should be awarded as salvage. The fishing-schooner 3/. L. Weatherall had been engaged in fishing on the grand bank of Newfoundland, with a crew THE TICKLEB. jg- Of eleven men on board, and having obtained a full carao of fish sai ed therefrom on the 21st day of An.us 1873 bound for Gloucester, to dispose of the car^o S) n l.„f ' captain, Alfred Niekerson, a'nd as mate Th ddc^s N Lr' ment to divide expenses and profits, the other men behi. paid wages. The catch of fish had been salted merely f^^ the ordinary length of the voyage to Gloucester, t mt is to say, about ten days, and with a view to the sa of , ' same by weight immediately on arrival. The schoon r proceeded on her voyage until the 27th of Augus when he schooner JVcWc. was discovered about forty!fi -' m^^e" .stant from Scatterie Island. The .1/. L. WeJthZlZe •lown upon her and on near approach found her to be bandoned. with both masts gone. The mate, with three men. wen on board about 4 o'clock in the afte nooi kU owing to the wind having risen and a heavy sea prevailing It was no until after several vain attempts and many W evere labour, attended with much risk that a hawse was Ibr V^n^n' ," r " '•"" T "^'" sot under weigh and headed or Canso but the wind changing, it was decided to make or Lomsburg, Cape Breton, which was safely rea heTon e afternoon of the 29th. The salvors remaine Un hlrge the derelict imtil the 7th of September, when they we^e reheved by an ofhcer of the Court. Proceedings were «i! ! upon had to obtain salvage, the salvors clain^ng hat hey had been detained twelve days whilst rendering tie rser vices; that the demurrage of the schooner alone whout including wages, would amount to $180; and tlia In on sequence of the detention, the cargo f fisli wa's part v -damaged, and had deteriorated nearly ,^500 in Xe The Court awarded salvage as follows :— The salved ship appraised at . . « Cargoat «i,2oo oo ' 3.705 00 *4.90S 00 Salvage allowed, one-third .... f 1,635 00 168 VICE-ADMIRALTY COURT. Distributed as follows : — To the schooner ^250 00 And for 12 days' demurrage i8o 00 C430 00 To the eleven men, each $■24 264 00 To Alfred and Thaddeus Xickerson, for computed loss on cargo, their own services and their men's extra wages... 941 00 81,635 00 With costs. McDonald, Q.C, for salvors. N, H. Mgauuer, for owners. THE E. ROBINSON. (DELtvERED Febkuarv 7TH, iS;4.) Derelict.— The ship was found derelict by the mail steaLiaship Abyssinia, and the third officer, with fifteen of the steamer's crew, after two days' extreme exertion and considerable personal risk, succeeded in bringing her safely into the port of Halifax. Appraised value of ship and cargo, 9101,930. $30,000 awarded as salvage. The steamship Abiimnia, of the British and North Ameri- can Royal Mail Steamship Company, set sail from New York on the first of November, 1873, bound for Liverpool. On the third, when in latitude 41" 10' north, longitude G3" west, a vessel hove in sight ahead, which proved to be the li. Robinson. She had all her spars standing, but her sails were in ribbons, and there was no one on board. Her cargo was composed of corn and cotton. The Abifs>iiiii,t sent a boat's crew on board, who found that the pump.s were choked and fourteen feet of Mater in the hold. Volun- teers were then asked for, and the third officer, J. W. Mor- ;50 00 So 00 ^430 00 264 00 )ss on ?os... 941 00 100 awarded as THE R. ROBINSON. jgg ris, together with fiffpnn r.f +1.-. 1 into work ng order in,l hn,.^ „ •, «nving them • ii " "iuei, and Dent new sails on flip -irnv-io . i The wind aiu sL oon aft "■ '°"''; '' '''' "^^^'^^^ P<>^-t- a.ale. which clS;:;;:—-^-^^^^ could not reduce -t ChL Xut ^ t^^^ ^^^^^ ^^ engine getting out of order so as to hi / "^'^■ whole crew were comne led M f , *^^^,'^^^'«"d repair, the to keep the vess^^S ^^^ , ^ *:« ^t'^T^ '' ''''' exertion and considerahle i^lo a ri'k hi '^^^" f r^'^ brinrriu.^ tJie /,' i> i ■ l'';\so"ai H'-k, they succeeded u «nn,ni, the L. hobumm safely into the port of Halifax. Salvage was awarded as follows :— The ship was appraised at . a The cargo, including freight, a;;;:::: '°:Z " To the steamship Abyssinin ^ZT" ^'°''°^^ ^' To the master thereof »i2.ooo oo ToJ. W.Morris '•^°° °° To nine seamen, salvors, Sy^o'eJch r,'--° °° To wo hremen and r„ur stewards on IJoard A". Rohinsou, #5,0 each «, To the officers and cro.'v c^'the^t^ ^ ' ) '''°° '^^ according to ratings . Balance towards salvors' cosVs ''■^°" °" 450 00 T) ^ 830,000 00 Ritchie, Q.C., for salvors. Blanchard and Mkaomer, for owners. "leemsim 170 VICE-ADMIRALTY COURT. THE ATLANTIC. (Delivered March 14TH, 1874.) Life-salvage.— Awards made in the nature of life-st Ivage to fishermen who had been instrumental in saving many lives from a passenger steamer wrecked upon the coast. The steam ship Atlanth, belonging to the Inman Line, while on a voyage from Queenstown to New York, with a general cargo, and a large number of passengers, by tlic neglect of the captain, was brought too near the coast of Nova Scotia, and on the night of the Slst of March, 187:^, struck on a rocky promontory, known as Meagher's Head, about fifteen miles from the port of Halifax. The steamer immediately began to fill and sink, and as there was a hisli wind prevai^i'^gat the time, the sea soon made a clean breach over hf?, ^ i . ig away hundreds of the passengers. A nmrf.cr ^iit-eeu . in reaching a large flat rock that pro- jected 1 .0 tliG v.ater within a hundred yards of the land, while many remained on board the vessel, holding on by the rigging. At early morning the catastrophe became known among the fishermen in the neighbourhood, who forthwith proceeded to the scene of the wreck, and for many hours laboured with their boats, plying between the rock, the steamer, and the mainland, using two large seine boats for the purpose. In this manner they were instrumental in saving some three hundred and seventy-five of the pas- sengers and crew. Proceedings having been thereupon taken by them in the Court of Vice-Admiralty to recover compensation for their services in the nature of life salvage, the following decree was made : To Edmund Ryan, who had been their leader in the work 610000 THE MAKOAEET. To James Doolen, whose boats had been used and who was particularly active ' ,^„ „„ To fourteen others, sums according to 'th^ nature of their services, varying from ^30 to 8100 each, and making in all j ^^^ ^ Total 171 •1.500 THE MARGARET. (Delivereb March 14TH, 1874.) persuaded the ^.^Ji L , to l "V' '^?'"" °' "'^ '^"^ -««' ^nsai,edo.butL„ — -— — irt;^b?:^ti^ The schooner Alfred Whalen, while prosecutin. a fishin- voyage on the Western Banks on the 27th of January I87 4 iscovered the schooner Manjaret in a crippled " nd tion' she having been thrown on her beam ends r, short tme' ZT^.^^'-'''^'^^' '^ -^* awayth'rasi:'!: orcJei to light her again. On the Alfred Whaleu coming up. he captain of the Manjaret asked to be tak n ,'^0,? ,1 V ' ^'.''*''''^ ''^"^'^^ *" '^«' '^"t offered to take the vcs el. lo this the captain of the Margaret would not at farst consent, and then asked only to he report as he would remain by his vessel. His crew, howev'er after con «ultation together, decided to go on board the Ay^^WlX Zlrm'V' ''''''' """ '^ ''^' noreii-ce b t o failed ;if!n *'T T "'- ""- '""■'^' '''' ^^'^^ "'/-'- sailed off as though she intended to leave the Margaret 172 VICE-ADMIRALTY COUHT. altogether; Init, after goins a few miles, returned, put several raon on board her, and then taking her in tow, brought her into tho i)ort of Halifax. From all the facts in evidence it waH made clear to the Court that the purpose of the maHtiir of the Alfred IVhalcn was to compel the master of tho M,ini>ircl to declare her derelict, in which case he would have been able to secure a larger amount than would ho awarded for ordinary salvage services. Under the circum- staucoH, however, the Court decided that it could not look upon the Mm »„ refused. rZ t,rt 'f**' '"'° ''°"'""'' "" *""«"". tot .■Jb.ianiiai .orvlce renv , orsoy „? ho 07 1°"!; ,»"'' •''''''«' tor Portland. On the .SOtI, 1 , , ■"''' '"''' ^""■^ whicl. the n,ale say, e/. had T '7^ '"" ^'""'"'' considerably.- 13, tl, ],„ ''T „ '"' '" «"°*'l "' '-isMing tarqne, tho'ush ho", Li , f, "'""*■ """ "'« twofcetoutofn-ater ° „ ''""""-''""d rail about ^he at any «!"' ;r,a::L"''''s;;o"'"™''"V"°"'" Bank afloat about 110 miles to°; r^ ,"" °" "™'8'''^ m.merons Amc, iean nol 7,1 , , ' "'' """" '" "'» thantoHalifaxOnT; ;"*'''" ''°'''°'''''"'">"«™. «..t night "h V„, °:J' t';,' I'f °f ■*.'.«"'• arge of duties being unpaid hnr ' '"" '^'^"'^^ ^"^'^^d under the je;veiry. The CaimanLlCt^arh: ha^d rot""^ °^ ^^•^'^''- -^ -^ -If, but purchased them in Halifa butt 'T"'^ ''^ «°°J^ ^im- %. "^ vv /> ihic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ 4?' i\ i\ n\ '^O'"..^ '^'^ ,> ^.f<^ ^ ^ C/j E 180 VICE-ADMraALTY COTTRT. January last. On the 29th I directed a further examina- tion of the claimant in presence of counsel, and at his request I inspected the articles seized at the custom house, and the appraisement of them as testified to by Mr. Kerr ; and with these materials before me I am now to give judg- ment. Baldwin has been in business here, keeping a jeweller's hardware and earthenware shop, for about eight years. The goods, consisting of thirty-nine gold and four silver watches, fourteen sets gold brooches and earrings, and fifty-six gold finger rings, appraised by Mr. Brown at §1,300.70, their wholesale sterling value being equivalent to that sum, were exposed for sale and seized in Mr. Bald- win's shop, under the Dominion Customs Act, 31 Vic. cap. 6, sec. 75, 91. Under the 106th section, the proof of the duties thereon having been paid lies on the claimant, and his defence is, not that the goods were imported and the duties paid by himself, but that he bought the goods from the house of McClelland Bros., doing business here as a branch of the same firm doing bus-ness as general mer- chants at Birmingham, in England ; that he bought these goods in 1872, in the ordinary course of business, at fair prices, and had no reason to suppose that the duties on them had not been duly paid. It was to afford the claim- ant an opportunity of establishing this defence by the invoices of McClelland Bros., and by their ledger, which was in his possession, that I sanctioned his second examin- ation, and I have carefully inspected the ledger and invoices produced, as well as the other invoices in proof. The object of such prosecution is to protect the revenue and to detect and punish fraud, not to harass the innocent owner of goods, in the language of one of the clauses of the Act, nor the fair dealer. It is true the goods on the shelves of a dealer may be seized under sec. 91, by an ofiicer of customs having first made oath that he has reasonable cause to suspect that they are liable to forfeiture, and they may have been smug- gled, and be so liable without the knowledge or participa- of the dealer, who, in such case, would have his tion THE QUEEN V. GOLD WATCHES. ' JQI In the case of the M«m«, tried in 1871 (anfe p 6';) TI,o^ tte United State Indirn™"' ''™' ''"""''' "' Pirated of eoun.err ^^^ t^dlTL'" tT"' It appears from the deposition of Mr Kerr tJ.nf PoU • "fe in -Cingiana in the summer of 1ft7q i,oonaId, in presence of Kerr, that 182 VICE-ADMIRALTY COURT. the two watches had been smuggled." This of course hav- ing been taken by the Registrar and certified by him to have been distinctly read over and acknowledged by the claimant to be true, is decisive as to the two watches. Another of the gold watches seized was bought by the claimant in England for his own use, and worn upon his person, and the prosecuting counsel considering it as part of his luggage, did not press for a condemnation, though the watch was found in the shop. The history of the other goods is not a little curious. It would seem that the claimant, like McClelland Bros., has a place of business in England as well as in Nova Scotia. One of the bills of parcels produced is for Messrs. Baldwin & Co., Burnley, a town in Lancashire. Four others produced along with it, all from McClelland Bros. & Co., being, I presume, the same firm with McClelland Bros., and both in Cambridge street, Birmingham, are for Messrs. John Baldwin & Co., Halifax, N. S., bearing date 28i,h and 29th August, and 4th September, 1873. These five invoices were voluntarily exhibited by the claimant to the collector, and marked C. after the seizure. None of them were exhibited for entry, and the only explanation given is "that most of the goods in C. came out here and are in another invoice B.," ano some of the goods the claimant bought from McClellai^i.. .iros. were for Lan- cashire, and are all contained in C. The goods in B. were entered 4th Nov., 1873, and tlic duty paid. The invoice contains two Boston hunting levers, 20 lines at 110 Bhillings each, being, as the claimant states, the two watches above mentioned and seized. Those he included in his entry without mentioning the fact that they were so included to the clerk, and the collector obliged him to amend his entry and take back that portion of the duty which applied to them. B. is dated 6th Oct., amount, .£136 38. 5d. sterling. But another invoice was produced, marked A. immediately after the seizure, dated 6th Septem- ber, 1873, amount, iJ75 13s. Id. sterling. Also, from McClel- land Bros, to J- Baldwin & Co., Halifax, containing many of the goods in B., but containing also some goods of which THE QUEEN V. GOLD WATCHES. IS3 toiceVatTqTr"* r'tT- J'"^ '' ' sold watch in- garea says . I am carrying on business in LancashirP did not open the parcel sent to me while there-can Ji^ .t9 15s. A set of transactions so mixed up and confused as these it is difficult to make anything of. The 0^1; tainty IS, that of all the goods in these original im^ ces n" jmtry has been made and no duty paid except on th glcls n B excluding the two watches, and that these goocfs a it No? Ml- ''i%T^r '''' '''''' ^^ auostio'n in tL except the three watches, were bought by him from thn mhfax House of McClelland Bros., Ld tha " bel'ves asl have said, that the duties on tliem were paid b u oJ his there is no proof whatever. Stitt McClelland wll Hata" r '" '' "" ^"--gham hrra, was their g n" Hahfax for seven years, and ceased to be so two years la He was agent therefore in the fall of 1872, whence seve^.' invoices produced by Baldwin on his second examinatrn maS f^^"':- ""'ir- ''''' '''-'' -^-"'W raarKecl D. 1 to 7, and most of which are enterorl fn ti.. edger of McClelland Bros.,passed from them St ^C Ia1f::C If ''''''\ '''"^ '-'' ''- goods r™t self M !r r "^'1 r""'^'' "* **^^* *^°^^' '^^^ that he him- self did not know what goods Baldwin bought. All he c^, say IS, that as far as he knew, none of the goods in the store jvere smuggled or illegally imported. Hisllm "ions I o the importation of watches through the post office "ithoiit payment of duty-gold watches, for silver wodd no nv 2l:T\ t 'T''''. ^""^ ^ ^^^'^^-^^ ''" "^-rtm Claimant. But he had ample notice at the hearing that the 1^ ^1 xf^^'^''' ^'■""^ McClelland Bros. And it is remarkable that he produced none of his own books no •VMM 184 VICE-ADMIRALTY COURT. There is scmetbing very mysterious in the relations which subsisted between McClelland Bros, and Baldwin. Stitt McClelland says: " lam not very certain that Baldwin had any connection with the firm here or in Birmingham — never saw any agreement — they did business together — can't say if Baldwin was interested or not." Now, I cannot accept this as a candid statement, especially when I turn to the invoices D, — all in sterling, and one of them, 16th October, 1872, passing all the desks, tables and office furniture at the close of the business, with every step and detail of which the agent and brother must have been familiar, — and to the ledger showing in one place above fifty acceptances of one to two hundred dollars each, and in a subsequent page 179, many thousands of dollars in exchange notes and cash from September, 1871, to September, 1872. It is possible, barely possible, that these may be legitimate transactions between independent firms conducting a legitimate business ; but it cannot be denied that they are clouded with suspicion, which it was the duty and the interest of the claimant to have cleared up. Still, it is not the desire of this Court, nor, as I take it of the Dominion Government, to make the onus frobandi weigh too heavily on the claimant by pi-essing it to an extreme. Baldwin insists that there are 36 gold watches in the invoices D., priced some of them from SOs. to 50s. each, being the cheapest class. Others, at a figure somewhat higher, but none of them of the more valuable sort appearing in the appraisement. As to these last, there is no defence or explanation attempted, and they must, of course, be condemned. So, also, as to the 14 sets gold brooches and earrings, and as to one half at least of the gold finger rings, these brooches and rings appearing obviously on inspection to be of a superior class of goods to any in the invoices D. but I have gone over these invoices and have marked with my initials on the appraisement such as I can see any fair ground for exempting. In claiming the 35 or 36 gold watches invoiced in 1872, in D. 1 to 7, which range at a higher rate than the average of from SOs. to 60s. sterling, stated by Mr. Baldwin in li THE QUEEN V. GOLD WATCHES. 18(5 his second examination, he makes no allowance for the sales of a whole year, though he kept a book showing account sacs of stock; and therefore I have exempted about one half of the watches that come within the limits of these in- voices, to which the watch worn by himself is to be added All the others I adjudge to be forfeited for illegal importa- tion Mr. Muncey, the custom house appraiser, states • I have been m this office since it was first established I never knew of any samples of gold watches or jewelry bemg submitted to me by McClelland Bros, for examination There were none during the years 1870-71 or 72 " Mr Kerr says: "The entries in the custom house shew that the whole number of gold watches entered by McClelland from 1869 to the time of seizure does not come up to the number of watches seized." I have good reason, therefore, for thinking that I am doing no injustice in this condem- nation. It remains only that I should deal with the defendant ' under sec. 75, cap. G, which runs thus : "If any person, knowingly and wilfully, with intent to defraud the revenue of Canada smuggles, or clandestinely introduces into Canada any goods subject to duty, without paying or accounting for the duty thereon, or makes out or passes, or attempts to pass through the custom house, any false forged or fraudulent invoice, or in any way attempt^ to defraud the revenue by evading the payment of the duty or of any part of the duty, on any goods, every such person, his, her or their aiders or abettors shall, in addition to any penalty or forfeiture to which they may be subject for sucli offence, be deemed guilty of a misdemeanor, and on con- viction shall be liable to a penalty not exceeding two hun- dred dollars, or to imprisonment for a term not exceeding one year, or both, in the discretion of the Court before whom the conviction is had." This section is a transcript from the Canada Act of 1849, 1- Vic, cap. 1, sec. 19, and being imperative in its terms' i adjudge the defendant guilty of a misdemeanor in respect 186 VICE-ADMIRALTY COURT. of the two gold watches which he smuggled by his own ad- mission, and pronounce him liable to a penalty of one hun- dred dollars with costs of suit, imder the requisition in sec. 104, sub-sec. 4, of said Act. McCoy, Q.C, for promovents. McDonald, Q.C, for respondents. THE CLEMENTINE. (Delivered September, 1875.) Collision.— The French barque Clementine, on her way to Halifax col- lided with and sank an American fishing schooner on St. George's Bank The schooner was at anchor, and the barque sailing at a fair speed. The c >lIision occurred soon after sunrise, and there was conflicting evidence as to the state of the weather, the plaintiffs alleging that it was clear ■ the defendants, that there was fog and mist. A sufTicient look-out had been maintained on board the barque until within a few minutes before the collision, when the man on the look-out was called down to assist in working the vessel, and before he had returned to his post the schooner was struck. Held, that the barque was in fault, that a sufficient look-out should have been maintained throughout, and that she was therefore liable in damages and costs of suit. The question of jurisdiction having been raised, as neither of the vessels were owned in the British possessions. Held, that the Court had full jurisdiction in the matter. This is a suit brought by the owners and crew of an American lishing-schooner, of 60 tons burthen, called the J. O. Friend, Jim., belonging to Gloucester, in the United States, and run down on the 15th May last, while at anchor on St. George's Bank, by the barque Clementine, of 87o tons burthen, owned at Bourdeaux, and on a voyage from Hong Kong, with a valuable cargo, for Halifax. The col- lision took place a few minutes before 5 o'clock a.m. on -*A THE CLEMENTINE. 187, jifher of the vessels he 15th of May. The crew of the schooner had barely time to escape on board the barque, bareheaded, in their stocking feet, without their coats, as if raised from shimber when the schooner went down. They were transferred at their desire to other fishing vessels in their ncighbourhoo.l and the barque proceeded to Halifax, where she was arrested under a warrant on the 30th May and was subse- quently admitted to bail. Preliminary acts having been brought ml directed that the pleadings under the rules of 18o9 should be by act on petition answer and reply which were completed on the 3rd July. The evi.lence being in the form of affidavits, each deponent, by the wholesome practice I have introduced in this Court, was subjected to cross-examination and the witnesses for the defence bein- I renchmen, I appointed and swore in a competent translatoi^ and the cause came on for a hearing, the nautical assessor being present, on the 12th of July. For the plaintifTs there were read the depositions of the master and three of the seamen of the schooner, including Beck, the watchman on deck at the time of the collision of four persons on board four fishing vessels in the vicinity' and of a man who made the repairs on the barque at Ha ifax. lor the defence there were read the depositions of the master, mate and six of the seamen of the barque being eight out of the eleven persons on board. These depositions are voluminous, and, as usual in such cases contradictory ; and I have employed the first leisure I have had since the intermediate sitting of the Supreme Court to give them and the principles which they involve a deliber- ate consideration. The first question that arises is the jurisdiction of the Court. This was raised properly, as I think, in the Act on petition (9 L. T. E. N. S. 23G. 1 Oldright. 828), and was argued at the hearing. The jurisdiction of the High Court 01 Admiralty as between foreign vessels under the Act of 1S()1 and the rule of communi Juris is recognized amon- hers m the Courier, 1 Lush. 541, the year after the Act^ tiie Johanna Frederick in 1839. 1 Wm. Robinson, 35. and — "W iii y 188 VICE-ADMIRALTY COURT. ■ ; i 1 \\ the recent case of the Mali Ivo, h. 11. 2 Adin'y 356 ; and 1 am of opinion that the jurisdiction extends to the Vici'- Admiralty Courts under the Act of 16(53, sec. 10, sub-sec. 6. If upon ge.ieral principles and the necessity and reason of the thing 1 could entertain a doubt, it would be resolved by the decision of the late Judge Jilnck in the cause Johanna, Stuart's Vice-Admiralty, Hep. 43, which is expressly in point. The general rule applicable to the case I find in 1 Par- son's on Shipping, 530, where it is said that if a collision takes place on the high seas between vessels of different countries the rules of the Maritime Law and not those of either country are to determine which vessel was in fault. The schooner, as I have said, was on St. George's Bank, a fishing ground unknown as such to the master of the Clementine, but well-known to all navigators on this side the Atlantic, and marked on Wilson's chart, published in 1871, as a shoal, nearly a wash at the shoalest parts. Tlio collision took place in lat. 41-50 and long. 66-25 or 30, and tlie captain, who made the first land after St. Helena at Jeddore, eastward of Halifax, thought he was 25 miles east of the shoal. The sun had just risen at 4-36, and we shall find very opposite accounts of the state of the weather. But the captain, who was on deck, and seems to have pre- served perfect discipline on board his ship, recognizes the necessity of a look-out, who was unfortunately withdrawn for a few minutes under the circumstances we shall pre- sently see, when, without notice of a vessel being directly in the track, and seen only when within 100 or 150 yards, the collision occurred. The captain thinks he might havo avoided it had the distance been 200 yards ; and Boisnee, the look-out, says he could have avoided it had he seen the schooner from the forecastle a quarter of a mile off. Now, the barque was close hauled, and going through the water at the rate of six miles an hour, so that a very few minute.s made all the difference, and perhaps caused all the mischief. The necessity of keeping a look-out in a fog or in passing THE CLKMENTmu. 189 og or in passing ♦LrouRh a floe o trawlers or over a known fishing ground VV^^rn m all the cases-in the Pepperall, Swabey 13 •' tl'o Manjarct, 15 L. T. R.pt. N. S. sc/and others ^' ' ll.a nes-the rule was laid down that it was the An I the niaster and crew to keep a looLu rig t nd ft. ... the bows of the forecastle, and if thoy neg e ted "n : f ;,::' ''' Z' "° ^^*^* ''^' -'«^^* have sett H«c'H and the uargc-, the owners were liable i^ch 'Tarpon V"::'.'' ^"'''" ^^"•'•'''^"■"« ^-"i"'"^. « , • 73«'/«"««k, C.B., said that no change in the law St Tt ufaf n' '''' ''■''''''''''' ^" ''' ^ImiraU^a^: mml to L Tr "' navigating their vessels are •<"»'l to keep a look-out junt as they were before these 'Kulafons were made ; and if it could be clearly made oul fion Bheei carelessness and negligence in not keepin- a oodook out. that other would be liable in damages' Iso .) ^\all ces Itep. of the Sup. Court of the United State. hero It ,s sad that they should be stationed on tSt;.' a part of the vessel, and actually and vigilantly emp o "d m the performance of their duty. J'^ipiojeu Tlie state of the weather, whether clear or cloudy immc 'Lately before and at the time of the collision, i of g^a unnont in this inquiry, and obh-ges me shortly to r'view the evic^nce which brings ; some striking re ul s .tr:; LTf " V'V^^^^^^^' and Beck, tlie wS va no fo^n 1 T :"" *^'"^^^ ^°^^^^^* «^'^r<^a«t' there ViiH no fog and the horizon was clear. Beck saw the ar.p.o from four to five miles off; he knew by the sa Kl-it was about an hour from the time he first saw her tBho ran into the vessel. This is confirmed by MaLon aiKl by the four independent witnesses. ^irst Silva of the Dictator, which was at anchor about '^ mile-aud-a-half from the Friend, says the morning was w* i 190 VICE-ADMIIIAI,TY COURT. ■ i'"'- ' If! quite clear and witli no fog wlmtevor. At the time of tlic collision vessels and other ol)jeet3 could clearly be seen at a distance of live miles from where the Dictator lay. A littii before 5 o'clock in the morning he saw the barque about three miles from them ; she was on a starboard tack and her course about north-east. Ho saw her pass pretty cIohc by the stern of a vessel some distance off — she continued her course and soon after he saw her collide with the Friend, and a few minutes afterwards he saw the schooner sink. Secondly. Nagle, of the C. B. Cluipmnn, says that he came on deck about half-past 4 o'clock. The morning was ([uite clear, and there was no fog, the sun had just risen out of the water and entered a cloud. The sky was a little cloudy, but it was clear below. He was sure he could see the hull of a vessel live miles off. Thirdly. Itogers was anchor- watch in the W. II. Rati- iiiond from 4 to 5 o'clock. He had had twelve years' e^cperience at sea. He saw tue barque pass within one and n half mile. Just after she passed they took down their signal light. The barque, after passing them, and before tlio collision took place, passed the C. E. Snyivard. The morn- ing was clear, without fog, but somewhat cloudy. There was nothing whatever to prevent those on board the barque seeing the Friend several miles before they struck her. Fourthly. Lynch, of the C. E. Sayward, gives the same account. He could see for seven or eight miles. There was no fog. The barque sailed close by their stern, and he continued to watch ht-^- till she collided with the Friend. There was no one on her topgallant forecastle. The only two men he saw on her deck were on the poop, aft of the mizzen rigging. Let us contrast these statements with those of the defence. Messac, the master, and Lict,the mate, without distinguish- ing their several passages, say that from one o'clock of the morning of the 15th until four o'clock the wind was from the cast-sonth-cast, and blowing a smart breeze, with ioa THE CLKMENTINE. 191 all tl,o lime .,;:,„ t »,'" ""I "'"'"" """° ™ '»'' «i.o.d There wa, f„« low'.r. t '. rj; ' "n^.f ' MIUCK 01 tlie collision in mv onln'n Tl. 11 o ""<- .ao.t^„ :^„,,--;;-^^^ "f^^"^:ia?^2^t::r,,":r'rr Wore and the eahin h„,v taki,,. do™ he 1 °L ,'r dayhght, aad that a vessel eould he see Z\„f'tl, 7', a mile to „ mile off, are very mat^il ^Z Z^-';" -...C:.;M^,f;— s:.r.,;,';,:? B. Chapman^as a little to the north-east of the latteiTL' a^uopassedbetweentwoof thesevessels at" dancer ilie Dictator was to the north-east of the Friaul Tl -V the loo.-out or other seamen. The barque sounded no 192 VICE-ADMIBALTT COURT. fog-horn, and can hardly complain of no fog-horn having been sounded from the Friend, when, as Beck says, there was no fog. No bell was used on either side ; Messac was the first who took the alarm. The first intimation he had of danger was the glimmer of a sail partly hoisted, low on the water right ahead. He immediately ordered the helm to port, and it was instantly done, but it was too late. As near as he could judge, when he first saw the schooner, the distance might have been 100 yards or thereabouts. She was struck near the starboard fore chain plates. The Clementine'' a topsails were put back and she fell off. When he first saw her he thought she was under weigh, but being at anchor she did nothing to avoid the collision. There was little time indeed, for between the captain's order to port the helm and to let the lee braces or jib sheets go and the collision there was an interval of only thirty-five to forty seconds. This is the captain's estimate, and he adds that lie would have had time to bring up in the wind and check the speed if he had seen the schooner at a distance of two hundred yards, and the shock of the collision would have been less ; with the current that was running he did not think he could have quite avoided a collision at that dis- tance. It is obvious, therefore, that the difference of 200 or 300 yards in distance, and of four or five minutes in observa- tion, led to the collision and the sinking of the Friend. 1 That the bark had a sufficient watch on deck, and that everything that could be done was done after the collision took place is clear. There is no negligence or fault that I can see imputable to the barque, except the absence or the withdrawal from his proper place, and that for a legitimate purpose, of the look-out on the forecastle, who, had he been there, must have seen the vessels he was passing, and the Friend directly in front. " On board my barque," says Messac, "the look-out station is on the topgallant fore- castle. In foggy weather, such as I have described, it is necessary to have a look-out on the topgallant forecastle THE CLEMENTINE. jflfl Bchooaer. 'ri!„ . 1 . °'''°'" """» «Pi'*tl both wa.N„„a BoLte ° ""' "^ """> «"°''°" "'« ---« -emble, this i. that of the , Ji ^3 V I "b" ""S ss:f";:tttr;:r::r '^Th'^''" 'rr:,' -' n oDserved la the darkness, ran into the Mellona. V-A.«. ^^ "ij M 194 VICE-ADMIRALTY COURT. The question was whether the look-out was sufficient, con- sidering the state of the night and the proximity of other vessels. Dr. Lnshington thought that if the master found it necessary to go below for the purpose of consulting his chart, he was bound to have called up another of the crew to supply his place on deck, and, with the concurrence of the Trinity Masters, pronounced the look-out inaufficient, and the Mellona in fault. I have quoted the material parts of the plaintiff's evidence as to the weather. On other points that were urged at the hearing, it is unnecessary to go into it minutely. If be- lieved, it establishes the facts of the Friend having been anchored and secured like the other fishing vessels around her, and according to the usage on St. George's Bank ; that a watch was on deck ; that her lantern was lit and sus- pended in the proper place, and that it was impossible for the Friend, so situated, to escape from the danger. Till the barque was close upon him. Beck apprehended no colli- sion ; and if he had apprehended it, he was powerless, while the rest of the crew, with himself, had barely time to save their hves. I am of opinion, therefore, that the plaintiffs have clearly established their case, and that the Clementine is liable iu damages and costs of suit. The damages will comprehend the value of the Friend as she stood at the time of her being run into, with her outfits, estimated extravagantly (as I cannot help thinking) at $7600, and the fish that he had caught, valued at $600. Interest and anticipated profits I think should not be claimed. Something may bo allowed for the clothes of the crew, as in the Irish case of the Ciimherland, 5 L. T. Rep., N. S., 476. The reference will be either to the »egistrar alone, or assisted by one or two merchant?, as the parties may desire. It will be seen by the assessor's letter, which I will now read and file, that he has survived at the same conclusion m the Court ; THE CLEMENTINE, Ids Halifax, Nova Scotia. o,„ Tj . ,. August 2Sth, 1875. collision between the French barau.r/ ! T^"' ''''"'''"' '" 'he CV.«.... .as in fault, under the'foll^vi:; drcu^m;'" ''' '^^^"^ ful pursuit of fishing TiZZ'eutnn '" °?"' ^"^^^^^^ "' '»- '^w- run down and sunk bv the //en h baraue"c """:^- " ^"""^^'^ ""'"''" -" mascer, while on a voyage ho^HcZT ^'""T'"' B°"nleaux, Messac, The collision appea^torv" utTd^^: :';:- "'°" ^-'- having risen at about 4.40, but obscured at the tLe bv a'f T' '''' ^"" It IS admitted by the master of th^ ;/"« ""e bj a cloud. ;h^^~:hr;;:sr;h^--^^^^^^ =:;^ -iir St^^t '---;- pa;t;r; t:, -:, - a...d to avoid two schooners^prerb^ttlo ^ ''^''' ''' '" '' the northward of the scdZ Car.t ^ Ta ''Z''''''^ '° '^'^ ^'°^« '° collided with the y. O FnZ yZT ' '"" ^'^°'' "'^ ^^"^^' JL;:n'tS'::t ■•^:i:^::;;'^ "^ ?"'^"'^"- ^' '>>« *'- °^ ^he called off to assist in maZg sal a shoXm'eh^r '■':'■ '' '^^'"« •^-" If the y. O. Friend y,Z I't T ? '^°''' '*"" "'^"''«'" O'^curred. distance of roc yards ' and a 1,1^" I f '" °' ''^'^ ^'""""'- ^^ ^ duty to ■• go about 'or. throw a rht"' * '° '^ '"""^'^'«' " ^^^ ^'^ avert the impending disaster Th . . ""'"^'^'^'^'y' '" -"eavour to notdone; and the^efo e uoo" - Tl' .^°'' '° »^'"°^"' "^'" ""'^ ^vas stances, I am led^io [LT e^t L^ h^l' 0"?"°?^^'"^'^ ^'^'^"'"- through the negligence of the ma"t r of ie^a^'iJ""r "" """ having caused an efficient and proper look-o!;: to ^e kept """'• '" "°' I have the honour to be, Sir, Your obedient servant, r,r, r> XT ^, . f"- '^^ Scott, t-ap. R. N., Chairman of the Board of Examiners of The Ho. S. W. V0..0, Knight. Chief Justice, .c^'^^'^" ^""^ '^^^" i^ENNox, y.C, for respondents. WSfi^lmmmm* •t(i \'ioR-At>MinAi,TY cotmr. TIIK OliADlATOU. »Pl (nKI.lVlCHKP NoVRMIltil! 3IU). 1876.) Vioi.MioN or TCi-vuNi'K I,AWs.--Tlic siluioncr (!ltir, wlirrcof oiip Pavis was inaslor, was ennugccl in tlip traile lictwcon nostoii, II. S. A , ami Yariiionlh. N. S . making n>Kiilar trips liclwccti tlinsc jioits. i'lus- pu'iiiii liaviiiK liccii arnus(!(I as to ihiTc IkiIhk siinij;i;liii); r>|iorati(inri, an invcslinalioti cm the part of the Ciislum House aiillioiilics vcvcalfMl tin; tai 1 that tin* siiin^KlinK ot kerosem- oil had hi'Pii systctiiatically carried on liy means ol false outward nnd inward manifests. Ililil. that the vessel, witli her ajiparel ami (iirnitnre. was forfeued to the Crown, and that the master was liable, under the Dominion (Instoms Alt, II Vic, cap. f>, in eigliteon penalties, as follows: -Six, of ^.\nn e,u li, for making; an untrue report of goods on lioard ; six, of 8200 each, for beiuK concerned in the landing and removal of Koods liable to forfeiture, and SIX, of J.((io each, for inakitiR untrue declarations. This caHt> waa recently hoard hoforc nic, aiul rovoalcd a RoiioH of (l?hiys in the prosocution very imuKual in tins Court, and iirisino; from causcH of which 1 lun niiinfornicd. Tho vossol \va8 soizod at Yarmouth for smuf:;p;HnfT ho far back aa Novombor, 1872. Ilaviufj; boon rcdoaatul on intcr- modiato bail, a libol was filed against hor in Novombcr, 187:5, and another libol at tho same term aj^ainst James M. Davis, the master and part-o\vni>r. HutVioient hail waa put in for both, and a mass of testimony has accunnilattMl, taken at Boston, Halifax and Yarmouth, furniahins, with the oral evidence of Mr. Kerr at the hearing, the facts on which the argument proceeded. The substance of those may be compressed into a narrow apace. In 1871 and 1872, the Gladiator waa a trading ship, of 125 tons burthen, between Yarmouth and Boston, and the smuggling of from one to two hundred barrels of kerosene oil is charged as having lieen carried out in nine voyages, between the 29th May, 1871, and the 81st May, 1872, in seven of wliicli Davis was master. The proof arisea from a comparison between the outward manifests at Boston !Uid the iiiward manifests at Yarmouth and the admissions of Davis, Mr. Kerr, under instructions from the Revenue ' Mi TltK (ir-ADrAToll. 1<>7 Department Ht Ottawa. ,„„,.,r,l.d [„ H.mton ,nui . i . B tl„.n.. ...to thin a„,l oth... H.,H,„.,.t,.,| .iHinm. „ all tl.o vosHolH HailiuK fn,n. timt port to Now !^.^^ :^^^^^^ Nova S..ot.a an.l IVi,„... |.;,,,,,,, ,„,„,,, ,■,,,,,; ^r; parH." ti.., .vHuItH of wl.ich h. states. An,oM« |, J tl.on.a.ul..tK,orthoni„.,vo,a«.HiM,..Hto.r. Z^ l-ys™iI,H,ntaiM..-a,.onli„.totl.olH.HtolIW 1^^ i-lKo an.l H.lu.f. all tl.. ,oo,Ih, wan. an,] nuudnuw il 1 . I'" '">anl IMH V.HH..I.- an.l if any otl....- shall 1. 2uZ -m I,nn-.on;Uo IK. .l<.pa.tMn. IVo„, tlH, p -at ho w. I nnnH.,liat..ly n.port tho Han.,, to th- .-oil," ' ' i ...HO n,an,h.,stH hIh.w that on tho nin„ voya-.s 2:., I, is of koroHcno w,..,. hMl,.„ on I.oanl tho aJi^r, an p . vory largo and nn-Hc,.l!an,.o„.H .^ar^'ooH. NextcmuoH tho ovi.lonoo of yU: Ifowo, tho c.llootor at ^arnaoutl, who pro.luco.l tho on«inal ropo.ts i, wa I.OH0 nu,o voyaK,.,s. .sovoral of tlu.n HuhHoriho.l U Z' -f tho usnal pnnto,! forn., i„ which ho ,lo,=laros tla , o entry or roport contains "a tn.o account of tho la in , of to lup an, cons,«nn,ontof all tho goods an,l nK.vchandi n tho sai, Hlup to tho host of his knowlclgo an,] l.ohVf , d t at hulk ha,l not l.oon hrokon nor any gotds doliv mi ou of Bai,l Hlup sinco h.-r loading in Boston." u f t r" I'ortH of Both Soptomhor. 1H71. has not ho,.n f n, an, t o Blni-ment of tho .Oth, showing twonty-fivo harn 1 '. T^h the wholo as lando,]. although tho prohahilitios ar mZ o:tthoir^::;r^^™^^ The defoneo to this hrancl, of tho proof roveals, l,y nu- merous witnesses, hoth at Boston and Yarmouth a loo e nc.s of dealing a„d a facility in taking oaths whic . ar Z aBton^hing and reduce tho value of outwar,] manifests tJ • a very small figure. I shall cite only a few passages Mr 198 VICE-ADMIRALTY COURT. Hall, tlie ageni, of the ship at Boston, says : " The mani- fests are imperfect. Probably a large amount of goods would be shipped which was not upon the manifests, aa at the time of clearing the captain has no knowledge of what may come upon his vessel ; also goods therein described may not be shipped on board. In most cases the vessels clear in the middle of the day in which they sail at night. Hence the manifests cannot be otherwise than very inac- curate." Mr. Deling says : " Sometimes all the goods do not get aboard, and sometimes more than we clear are on board. Our manifest is no criterion of what our vessel has on board, and is only an estimate of what she has on board." Mr. Gammage says: " I have known many instances in which the manifest mentioned more goods than were actu- ally on board." The evidence of Davis and his witnesses at Yarmouth is to the same effect ; and there can be no doubt that great and constant irregularities in the conduct of the business with the Boston Custom House are estab- lished. But, conceding it all, it would be difficult to per- suade the Court that it accounts for the discrepancies here. On the three voyages of 25th May, 23rd June, and 5th September, 1871, there appear respectively in the outward manifests 25, 25 and 10 barrels, but not one is entered at Yarmouth. On the 19th October, there are entered at Boston 50 and at Yarmouth 15, and so on. How is it possible that in the three first entries there were none of those sixty barrels on board, and in the other only fifteen in place of fifty ? These considerations prepare us for the second branch of the proof, resting on Davis himself. Mr. Kerr testifies that Davis admitted, after the seizure, that he had cleared a larger quantity of oil than he had entered, and the only excuse he gave, his only reason for so doing — certainly a most childish and evasive one — was that it would enable him to get the empty kerosene oil barrels into the United States duty free. But Davis, in his answer to the fifth eross- interrogatory, is much more conclusive, and implicates THE QLADUTOR, s : " The mani- 199 his co-owners Messrs. Law & Co., as well as himself Uo ^::rr:e::e;i:;st;:^^r^^ this way," he savs " fmn, ',r''"*'f "^'*- I "«ecl to deal in T ij J ?-^ ' "°^ **"^^ to time, when 1 found ih»t I could do so with advantaL'e " Lnw t / , anacct 1 om the Gfa.Zmfor in contravention of the revonv Ati, OL VIC. cap. 6, I pronounce the said vp^^^pI under tto several section, of the abov A. ? ™'r' .he aeeo a lihe,, to wit, thj ^h, tTutlffZ 2nd an,, ,„ under the 89th section. This is donbt i a bad case, a case to be made an cramnle of nn,I .1,? f .ions of « Minister of h^ti^Zl^^t ^ CZ du-ecled that proceedings should not only be instituted l; the condemnation of the vessel, but also Ibe f rfe itures and P na t,es attached to the smuggled goods, or to irp rson or persons concerned in the smuggling of such goods I shall take them, therefore, in their order. The 7lh sec breaking of bulk contrary to the Act than lo the offence we are deahng w,lh. The lOlh sec, sub-sec. 2, im^se on the master a forfeiture of $400 for making an ,m rue report of .he goods he has on board, and I hold ttat. f , . Of the 80th beptember, 1871) were untrue. By the 83nd ^^ 200 VICE-ADMIRALTY COURT. section, every person concerned in the unshipping, landing; or removal of goods liable to forfeiture, shall, besides, the goods themselves, forfeit treble the value thereof, or the penalty of !52O0, at the election of the officer of customs, or other party suing for the same. The officer prosecutiu'i here elects to proceed in his libel for the treble value of the goods, which value he alleges in the aggregate to be the sum of $3,200 ; but, as no reliable evidence is given of such aggregate value, nor of the value of the goods in the six entries for which Davis is responsible, I am not obliged to impose this severe penalty, but adjudge each of the six entries as entailing upon him the penalty of §200. The 89th section imposes a penalty of $400 on any person making an untrue declaration ; and each of the six entries and declarations being untrue, I hold that the said penalty attaches to each. The penalties imposed by the same sec- tion, and claimed in the libel, for not truly answering the questions of the custom-house officer, I pass by. These accumulated penalties come to a very large amount, but the Court has no authority to mitigate or reduce them, nor has any precedent to that effect been cited by defendant's counsel. Under the Dominion Cus- toms Act, 31 Vic. cap. 5, sec. 50, and cap. 6, sec. 113, the remission of the whole or any part of any penalty imposed by law belongs to the Governor in Council ; and in this case I doubt not the power of remitting the penalties specified in this judgment will be wisely exercised. I pronounce the said James M. Davis liable for the afore- said eighteen penalties, under the 10th, 82nd and 89th sections and the evidence before me, with full costs of suit, as required by sub-sec. 4 of sec. 104. N. II. Meagher, for Government. S. H. Peltin, for Defendant. • THE AUOUSTE ANDRE. 201 THE AUGUSTE ANDBE. (Delivered August 31ST, 1877.) Ant™ nTS: vtf lottL'so^^''"" ^''^'"^^' ^^'"""^ between carried away. She coniinued : l^i;^ Z " ^"', ''' "^^ -"^- fallen in with by .he Su.it.erland abou ,V "Y"^ '°"''"'°" """> who ,00k her in tow, and brought her int^n I r '""'"* ^^""^ "^"^-. The weather was moderate dunn. al thn / !"" ''"■"'' ^^^^^ '°^^^^- This vessel, a Belgian steamer, of the burthen „, , .„ tons, on a voyage from Antwerp to New York )L ', her rudder on the 29th Decemher la t Id in « ? " '"" cojKlition having .lowly co„ti„„:y„TC c ^r'o uSS' Wth January, fell in with the Smu-erhnd ZoZrTl steamer, of the burthen of 9 05n* ""' ""'"or Belgian tow in lal.41M6' north long S*3™:' !""'' "''* ""' '" south-east from Halita amfr f., '' '""°' "« »""» «* Island, lyifglf;;;; nortlf Te JlT "™ a. littu aays. J^laherty, her first officer rAm-,,-> i uehmcl to eive pviflpn,.^ ^i,- i "uict^r, remained ^0 ,n evidence, which was completed on the 24th 15 ■(«■ 202 VICE-ADMIRALTY COURT. February ; when Knudson, the master of the AvpuHte Andrr, waH examined and cross-examined at enormous length, his single deposition containing nearly 200 folios, and in many particulars being utterly at variance with Flaherty's. Unfortunately, in cases of collision especially and of salvage, this Court has had largo experience of conflicting testimony, but never to so large an extent as in the present. There is an immense mass of evidence before me, with numeroun exhibits ; and without trusting too much to either side, 1 must look to the undisputed facts and to the probabilitic of the case, to ascertain, if possible, its real merits. That it is not a case of towage merely, as was contended, but Ih a case of meritorious salvage, to be liberally, but not extra- vagantly rewarded, is too clear to be denied ; and to me it is equally clear that the merit of the service has been grossly exaggerated. It has been my duty, of course, to read a second or a third time, and to collate the contradictory statements and opinions with which the case is overladeii, and to separate the reliable and the true from what is obvi- ously false or distorted. Lot us look, then, first of all, to the account given of the voyage up to the 14th January, in which there are no con- tradictious, proceeding, as it does, entirely from the defen- dants. The Av;iuste Andre sailed on the 16th or 17th of December (both dates are given), with a light cargo, haviuR thirty-fi' e persons on board, including her usual complement of eight seamen and one passenger — she had her boilers and engines tested before she left — they are tested, Knudsen says, every voyage before leaving — she is three years old, and was appraised here as of the value of $127,500 — the agreed value of her cargo was $122,500. Three-fourths of her freight was appraised at $8,592. Her logbook shows that she encountered some rough weather to the 29th De- cember, when the pitching of the sea broke the rudder, and a piece of it fell away, having been bent fearfully, as the logbook expresses it, from starboard to port. The diagram in i^roof shows how a jury rudder was skilfully constructed, and although the steaming was sometimes interrupted, still. THE AUOl'STE ANDRE. mmmi mmms wl.etlier it was safp in I , T ^*' ''"'' '^'^'"8 ^^^ed frv if 1 f ° ^"^ '° ^ ^^^*' '^nd declarinrr he would O t : he was of opinion that where the ladder v^a aTr t he boat rn^ght have been capsized, and probablythe Hve "...cl. hero to iaduce a »,«!„, alL^lu^'IheJfa™;" "' .l.o.e fcsLfed to by j^ekson there was ao opportunil"of j^'il 204 VICE-ADMIRALTY COURT. denying. As rcg;^»r(lH the inferior officers and the men, tlie distinction botwct them and the master is taken by Dr. LmJiington, in the Midlothian, 16 Jurist, 806 — 5 L. & Equity Rep., 566, who refused to admit the declarations of the crow, and struck thom out of the case. See also in the Catherine of Dover, 2 Hagg., 1-15— 3 Greenleaf on Evi- dence, sec. 414, note 4. On the 14th, the Andre, having been supplied with a hawser from the Sunderland, and using her steam, was towed along until the evening, when the hawser parted. Next day, the 15th, the Andre having been again fastened to the salving ship, the two proceeded cautiously onward ; and so on the IGth, when Saiubro Jjight House was sighted about 10 o'clock, a.m., and they made headw .y slowly till about 4 p.m. Captain Jackson says the Su-itzerhind lay off and on, and steamed slowly into the harbour, still towing the Andre, and throwing up red and blue lights for a pilot. But one of the pilot men testifies that the ice in the cove where they were prevented them from getting out. The Andre still remained in tow» and so continued till 3.30 of the 17th, when the hawser got foul of the Switzerland's propeller, and the steamers parted ; and it being hazy, the Switzer- land could not see the Andre till 7 o'clock a.m., when she was again taken in tow, and a pilot coming on board, by 3 or 4 p.m., they were at George's Island. Now, the danger to which the Andre was exposed, or is alleged to have been exposed, of drifting - hot? on the ledges and breakers in tli" neighbourhood during il*. tujee or four hours that she was parted from the F,vi*::erUind, iorms the principal ground of a large increased claim for salvage. The evidence, I think, clearly shows that there was no such danger ; but, admitting that there was, the Andre escaped it by her own good fortune, or good management, and not by any act of the Switzerland, who was willing and anxious, but at that moment unable to help her. This ground, therefor of an augmented and meritorious salvage rests on a fallacy. The Switzerland was undoubtedly the salving THE ACOUSTE ANDBK. g^^ «liip. but not during the mornins of the 17th wl..n « were separated. ' ^^'"^^ t^<^y ment? Yes IJnf +i,n • i .. ^^ that your judg- thnty miles an hour constituting a "ale • thnf fhZ lu two steamers • fhnf n,. i ; '^ ' ^* *''^>^ ^^^ t^e the Sisters amlH . m ' ''"' '^'''' ''''^'' '''^^^^^d of flat boat r„d Uave "nelrilr"';, t"""""^ Earner ,.bat i, .he ZnZ[^ i^'Z',! T'^*"" soull, w« f ., ? "''^'■'' "'"' "»'; ""I* breakers were outt.we t of the , earner; she was about two mile^ 7rZ "■^ism , aiiu was aniting — ■ --i- sible from the way the wind it was pos- was for her to drift to„arda atross are salvage services. It is not necessary, I conceive that the distress should be actual m 208 VICE-ADMIRALTY COURT. or immediate, or that the danger should be imminent ,or absolute ; but," he continues, " it will be sufficient if, at the time the assistance is rendered, the ship has encoun- tered any damage or misfortune which might possibly expose her to destruction if the services were not rendered." This opinion as to the imminence of the danger is quoted by Sir Robert Phillimorc in the case of the Strathnaver, decided in the Privy Council on Appeal in 1875, 1 Law Rep., Appeal Cases, 65. It seems, however, to be somewhat modified in the Annapolis, 1 Lush., 361, where it was laid down that danger, if remote, will not constitute an element of salvage ; it must be serious and probably immediate, for the Court will not look at that which is merely contingent, and may or may not happen, according to the occiurrence of circumstances. On these decisions Mr. James, in his treatise on salvage, remarks that the criterion adopted by the Court in the Annapolis will probably be acted upon as true, but the degree of remoteness must vary according to the various circumstances of each case. Now, there can be no question in this case that the Andre was in danger, not perhaps of shipwreck or entire destruction, but of long, it might be, aiid hazardous delay — not as a derelict, but as a disabled ship, asking and receiving aid, which contributed to her safety, and should be fairly rewarded. The amount of the salvage is the chief, if not the sole question to be settled ; and the numerous cases of this kind that have come before me in this Court have made me familiar with all the ingredients that enter into it. Captain Jackson sums up the claims and losses of his ship — first, in deviating from her course, and coming on what he accounts a dangerous coast ; secondly, in having a ship in tow, and the risk of collision ; thirdly, iu the loss of his hawser — to which he might have added the cost of deten- tion on the voyage and at Halifax, and the maintenance of his crow and passengers. The values of the salving and the salved ship are also to be taken into account. The latter I have already stated. The former is also very con- aiderable, the Switzerlaud being valued at $325,000, and her THE AUGU8TE ANDRE. 209 cargo at $250,000. She had eighty-two hands and twenty- six steerage passengers on board. Had the point arisen of the risk of loss of insurance by deviation, which I had occasion to inquire into in the case of the Scotswood, some difhculty would have been found in reconciling the decisions. In the True Blue, 1 I. R. P. c. 254, and the TMs, 2 L II Admy., 3b8, it is treated as an undecided and doubtful pro- position; that a deviation for the saving of property should avoid a policy; to which Sir Robert PhiUimore refuses his assent but which still waits the determination of a tribunal of the las resort. In the present case it is met by a clause in the policy of the Smtzerland, which is in proof with a ranslation ; but the translation having been lost since the hearing, I take the original clause, which runs thus • " // estperuntau vapeur de faire tons remon,uac,eH et sauvctarjrs edcse farre re,mr,uer ha nieme." Nothing remains now but to weigh all the circumstances of the case, which it would be a waste of time to go into more minutely, and in the exercise of a sound discretion to determine what is the just amount to be awarded. It is possible that the hicrh expectations of the salvors, as evinced in the conduct °of this enquiry, will be disappointed, and the rather, as I have had occasion more than once to remark, that the scale of allowance of salvors in the United States and Colonial Courts IS usually higher than in the English. Let me take for example, from Marvin on Wreck and Salvage, 204 the judgments in the liaikes, the Mep Merillie,, the Nh„rod and the Medora, all of them English cases, and all sur- pnsmgly small, according to our notions. But as the decisions of the High Court of Admiralty and of the Privy Council are the guides that I ought to follow, I am for- tunate in a case having come before both courts since the recent argument in this case, reported in Mitchell's Mari- tune Pegister of 29tli June and 27tli July last, which we may rely on, I think, as substantially correct. The Cit,j of lierbn, an iron screw steamship, of 2,960 tons register belongmg to the port of Liverpool, with 472 passengers, a •orcw 01 137 hands ail told, and a cargo of fresh beef and butter, new cheese and bacon, and general merchandise 210 VICE-ADMinALTY COURT. left New York on the 7th June, on a voyage to Liverpool. On the 8th, her propeller shaft broke, and having lost her steam power, although her top-sail was full, she was unable to steer for want of wind, which was extremely light. The engines were stopped and the ship came to on the star- board tack and drifted slowly to the eastward. On the 9th, distress rockets were shown to attract the attention of any passing steamer. On the 10th, she had reached within 600 miles of Queenstown (a surprising progress), and was over- taken by the screw steamer Spain, of 2,976 tons register, also belonging to Liverpool, and from New York, with engines of 600 horse power, a crew of 110 hands all told, 240 passengers, and a general cargo of fresh beef and lard, butter, etc. She took the City of Berlin in tow and con- tinued to tow her till the 13th, when she was brought just outside of Queenstown harbom- and anchored in safety, the wind having by that time veered to the east. The defen- dants paid ,^1,200 into Court, and the cause came on before Sir Robert Phillimore. The value of the Spain was iJ221,920, and that of the Berlin was ±'154,634 sterling, including in both cases cargo and freight. The judge, after consulting the Trinity Masters, awarded ±2,000, including the ±1,200, from which judg- ment there was an appeal, and the case was re-argued before the Lord Justices. James Baiifjallay and Cotton, who raised the award to ±4,000, having taken the views of their assessors. I may state that I would certainly have called in an assessor here, had I been aware before the hearing of the length to which the evidence had gone, and the numerous points that were to be raised. I have cited this case, as in many particulars resembling the present, and furnishing a reply to some of the argu- ments so vehemently urged on behalf of the salvors. I have taken into account the value of the Switzerland, the salving instrument, as she may be called, and all the cir- cumstances in proof, and am of opinion that the salvage should be |20,000, to be distributed as follows : — THE HERMAN LUDWIG, 211 In the case of a steamer, one half is usually assigned to the ship; but in this case, where there was no extraor- dinary exertion of the crew, and no loss of life, and the towing power and strength of the ship both accomplished and earned the salvage, the Court is justified, I think, in assigning to the ship owners three-fifths, being )«;12,000. To the master, who had the chief responsibility, I award $1,500. To Flaherty and the other five men who manned the boat in the first instance, I would have awarded a special sum had I believed that they ran any risk. As it is, they will share the remaining 16,500 with the rest of the crew, according to their ratings. The plaintiffs must have their reasonable costs, including the commissioner's charge at New York, and subject to some deductions on account of the inordinate length to which the pleadings and examinations have been swollen. Weatherbee, Q.C, for promovents. McCoy, Q.C, and Meagher, for respondents. 7 have called THE HERMAN LUDWIG. one, and the (Delivered November, 1877.) SALVAGE.-The Herman Ludwig, on a voyage from New York lo Antwerp, broke her shaft when two days out, and the California, another steamer coming up, an agreement was entered into by the master of the disabled steamer to be towed into Halifax, and to pay for the service such amount as should be settled upon by the Admiralty Court at that port This was accomplished within twenty-four hours without any mishap except the breaking of two hawsers. Held, that the service rendered was not a mere towage but a salvage service, and 810,000 was awarded therefor; of which 87,000 went to the owners, an.1 »75o to the master, the balance to the crew, according to their ratings. The law as to deviation for the saving of property reviewed ^fr****!* 212 VICE-ADMIRALTY COURT. The facts in this case lie within a narrow compass and are undisputed. The counsel on both sides were desirous of a speedy decision, and to avoid delay and an accumula- tion of costs, they made mutual and very proper admis- sions. The Herman Ludwig, an iron steamship, 951 tons register, manned by a competent crew of 83 hands in all, with a general cargo, sailed from New York for Antwerp on the 16th August last, and on the 18th broke her shaft, in which her engineer afterward found a flaw in the centre in the inside, not perceptible from the outside, and to which he attributed the breakage. On the same day, the 18th August, another iron steamship, the California, 2,096 tons, manned by a crew, 80 in all, including four officers, with 23 cabin and 130 steerage passengers, and a general cai'go of fresli meat, cheese, bacon, wheat, tobacco, some horses, etc., sailed from New York for Glasgow, and on the 20th fell in with the Herman Ludwii] in lat. 42° 16' and Ion. 61° 16', about 170 miles from Halifax. The latter made a signal of distress, and her master having gone on board the Calif or nin, a negotiation took place, and an agreement was entered into as follows : — Lat. 42° North. Lon. ei" West. Steamship California, August 20th, 1877. I, Capt. William Greve, of the steamship Herman Ludwig, hereby agree to be towed to Halifax by the steamship California, towage of the above-named vessel to be settled by the Admiralty Court of said port of Halifa.x. (Signed), W. Greve, Master. Arch. Campbell, Master. James Nicol, Witness. John MacKay, Purser, Witness. The Herman Ludwig was then taken in tow with a wire hawser supplied by the California, which broke from the yawing or bad steerage, as alleged, of the former, though the weather was calm and fine. The salving ship then supplied a 15-inch hemp hawser, which also parted, and a 12-incli hawser was furnished ; and with the two hawsers attached, the Ludwig was safely carried into Halifax har- THE HERMAN LUDWIO. 213 from ^thf? '"''*'."?'''? P'^^^'"^ «^«°"^' ^» -bout 24 hours ho r ,^,Y '''''''*''°' "°^^ ^ ^^^ bours after arrivl the California resumed her vovaee th^ v^u^i *• , being e,tio,„tea by her captain Xu^U^s"'' '°'' The value of the C«(,/<>™,v, appears, by the a-Imismon. I cargo A0J,779, mcludmg i'1,500 for measurpm^-nf i •mall part of her freight ha., been ear^'e " C™ ta "o^ I'^T," "''"'"' "-y » »PP™i»eme„l made h re at if«i ottj'";«' ■" ^"''■'S''-"''; the value of her clo 875 »•«?;•''"/?«"' ''"°«"' »2''«''-»»^ ina S: 875.38, equal m sterling to i'61,800. Such are the facts and circumstances of the case and th« values on which the Court has to adjudicate. It was rather intimated or insinuated than argued at the heanng, that this was a case of towa-e onlv not of ! i but in the face of the agreement anfthe'^s tlrs^^ rendered, such a defence, attacking the whole of the Cafm remuneratxon. ,f seriously urged, as I do not unders tn^ It to be. would be grossly unjust and untenable und r'he cases Many of these I had occasion to review in the recent case of the Au.uste Andre, and will now co"t n myse f with referring to the Charlotte, 3 W. Robilson 71 the Anru^oUs, I Lush, 361; the A'^.W., 26 l" Eo ' 596; and the Strathnaoer, 1 L. II., Appeal Cases, 65 '" In this, as in the former case, which was so elaborately and fully argued, whereas in the present but little wa 1 J or required to be said, the amount of the salvage L the c nef, If not the whole, question to be settled Som, elements were sought to be introduced by the p aintiff ' counsel which as I think, do not properfy b lo'ng tolt ner arrival at Glasgow, and that missing the market dnv 0. and If the shippers had established, or had even attempted to estabhsh, a claim for damages against lb e 214 VICE-ADMIRALTY COURT. ship, they might have been taken into account, though with great caution, the modern cases recognising more frankly and decidedly than the old the obligation of saving pro- perty as well as life at sea. So, also, the avoidance of a policy of insurance by a deviation in assisting a disabled ship is now-a-days looked upon in a more liberal spirit, and Sir liohcrt Phillimorc, the Judge of the High Court of Ad- miralty, has honourably led the way in infusing that spirit into modern decisions. As this decision will doubtless in- terest the mercantile and ship-owning classes in the pro- vince, I invite their attention to the language of the English Courts, which my own inclinations and duty alike impel me to adopt. In the Tlwtis, 2 L. Rep., Ad. & Eccl. 368, the Judge said, " the rendering of salvage services is an obligation required by the dictates of humanity, by the principles of public policy, and by the general interests of society — and has been recognised as such by the practice and jurisprudence of every civilised state. It is the duty, Lord Stoicell says, in the Watadoo, 2 Dodson, 437, of all ships to give succour to others in distress; none but a freebooter would withhold it. It has been urged, Sir Robert Pkillimore continues, that a deviation for the pm-pose of rendering salvage service to property, would, upon general principles, avoid a policy of insurance ; but that is an un- decided and very doubtful proposition of English law, and certainly one to which I cannot give my assent. It was pronounced by the Privy Council in 1866 to be an undecided point of law in the True Blue, 1 L. Rep., P. C. C. 254-5, and waits the final determination of the House of Lords, which I have little doubt will confirm the more enlarged and humane view of international and social obligation. In the present case no policy has been produced, which I particularly asked for, that I might see if it contained the clause now used in the Antwerp and New York lines permitting such deviations, and the owners of the California, to the extent of A'50,000, are their own insurers. As to the amount of the salvage, I shall be guided, of course, by the principle i announced in the Aiujiislc Andre, THE HERMAN LUDWia. 215 Thafthr """"' T'T^'''' ^^^ ^ "^^^^ meritorious norvicl I must 00 governed also in this ease, as I wa n tht o * ^Tlie 'c,^^ ;^-t/^nsH«l^ decision, '.Ui^^:^^^^ : The C^t^, r>f Berhn, an iron screw steamship of 2960 tons register, belonging to the port of Liverpool, with 472 pas sengers a crew of 137 hands all told. Ld a cargo of fS beef and butter, new cheese and bacon, and general Z chandise. left New York on the 7th June last'oH oZ; to Liverpool. On the 8th, her nroneller «l,„f/ , -^ "^ ..avi„« ,03. her ».„am „„„;, .1^^^;^^^^^ f. ; 1 ITr "'^ ""PI"""' "'"' »!'= «Wl> «ame lo on II c Jth, diBlress rock..t8 wci-e shewn to atlracl the attcntiV^n w overtake^ W l^""™*'; '" """•'*"'« '™«"-») »"'! was overtaken by the screw steamer .S>„„. of 2')7(l („„„ register also belonging to Liverpool a.. .he abscon.ling of one of .he agents and rjlue T,"" 'vnn no charKe against him of corrupt motive or imnn , h! J T own,.rH sought to make him responsible f^ the Z t of t e "'' '"' f l...d theretofore been ahvays employed for the ship '" ' "'" fftld. that the deposit of the money uhile in nort with fh» 1. nKcnts of his employer was not only [ustiHabl bu wh h m.ster;: ^^17.79 to be due to him in this case as master, on accoun of his disbursements and wages on two voyages .mder the Imperial Vice-Admiralty Act of 18C8, 36 Vic ' <'ap. 24, and the Dominion Act of 1873, 36 Vic can l-2f)' :Z '^%''\ •'" '''' ^^^^«^ '^- ^1^-' t^e'regLer.; own- , of the ship, mortgaged her, on the 22nd of July, to .. bert Sanderson, for $4,000, and on the 28th, Sanderson UHHigned the mortgage for the same consideration to William Imv and George H. Guest, who gave bail, and defend this action as mortgagees in possession. Sanderson was in poHHosHion. with their concurrence, till the 8th September. H77, aft.>r the two voyages in question had terminated, t was Sanderson who employed the plaintiff and was able for his wages, but lie became hopelessly embarrassed an. nsolvent. There was no contract between Law .t Co and the master, and, but for the modern rule giving him a ^^a.l able Sanderson, at or about the time when Law &-. 1,11. (llVftafn/I lii«.-. .,1' XI- _ ^ possession, went into a full settle- V-A.R. 16 218 VICE-ADMinALTY COmT. If nu'iit of tlie roc('ii)tH and exiu'iiditiiroH of both voyngcs, allowing' the itlaiiitilY liis \viv;.';os tlicnon, iit $ t5 iimonth, for nine and a half montliK, and adniittinf,' the balance now chiiniod to be due. The whole doaling.s on the two vojageH, that is, the plaintifl'H receipts and payments, amount to about $y,()0(), and no question is raised except on the rate of wages, and un allef:!ed forfeiture, or rather a pet-off for money deposited with Sanderson's aj^cnts in Antigua, on which a loss o curred under circumstances to bo presently stated. To those two points our attention is mainly to be directed, and three-fourths, at least, of a mass of testimony taken under commission, extending to eleven thousand clorioly written lines, may be at once dismissed from our thoughts. What has the plaintiff to do with the transactions between Law & Co. and Sanderson ? Ho looks to the ship, and is entitled to his wages, at the rate the evidence may establish, unless there is proof of a set-off or of such misconduct as would work a forfeiture. I will pause, how- ever, for a moment to review these transactions which are abundantly plain. In July, 1875, a balance on their pre vious dealings is due to Sanderson by Law & Co., and they pay him, and start afresh, on what Mr. Law calls a new kind of business, employing more vessels than one, in which Sanderson is the active, or rather the sole manager, obtaining advances from Law & Co., for which they held the assignment as security, and delivering the return cargoes to them, which they dispose of on a commission. In September, 1877, a balance of about $3,000 is claimed by them, and they refuse to make further advances, and take possession of the ship; and Sanderson goes into the Equity Court for an injunction, where both parties are probably still contending for their respective rights. But the plaintiff knew nothing of all this, nor of Law & Co.'s interest in t'.ie ship, until they turned him out. It is true that, on the fifth voyage, a difficulty having occurred with the charterer at Liverpool, a correspondence took place between Law & Co, and the plaintiff, but he con- TIIR ALEXANDKU WtLUXm. gif) "'ir>J"'. Uli tins (l)L'lll" lim f WHi\ .., 1 '>"t to N„m„n,™ ana „e..il ,t It 's\ r' , '" r no return oar.'o lio ti.la.« f- ; i * * .T '»i.'J'i«. Iindin,!,' I'im Lrfoie, ,u„l |,a.l „„,„„', ' '"'''"' "■"'' I. , ,, * miu III Of wluch'tl,o l-IaiutiiSbnoi^lt hn^r' h''''""'''"^'^'"'^'^' «on, who ha, l>eou at Ho I 1 ?"""- '^'"^ «'"^''^>»-- applied to JolHK on & fe^i: 'T'- ^"^'^ ^^^^ '^'^ P'-ntifr whom Saudernon h^d ^ " o. ..'^T ^?'' ""^'-"^'^"•^' do nothinrr better thnn il '^ "^ ^'' '"^'^ ^"""'^ ''^' ^•<'"1'1 and^notaC :t- .'r.oI f"f^ *-- «^ «''' -on Yarmouth Tl,e mo e f '7'- f ' ^"'"''^"^^"^ *^«0 ^^ .Johnson .fe M.K a •, ] '•'" ^'^"'^^^^^'1^'I'OHitod with Parker, mast , ?i^ r 'I ^T' ''::'"' ''« '-'' Captain fovvdai-s to n' V t .1 ' "' ^'"■'"'^""^. *7fi8 for a "'^o, lu i)u> pait ol his car"o whif)i Pa,.b liJ^- account to Johnson ^- \J r ^ ai'ker repaid on well. But when the, kh,?;^'"' f'' ''''' ^"^ ^^^onts as armanddraw^:i.e'i '^r^^tt""^^""^*^ they suddenly collapsed T , ^'* "''' ''"' *" J'"". plaintiff bad^rSrieK^:^:n.rl;r^^^^^^^^ wend his way homeward without s J^ ey Thil":' "' probably lost, Johnson, who proceeded fn V , """ '' ing been applied to there bv Son ] ^'^r^^outh. hav- without avai . This nTf. 7 ^""'^''^^^ '^"^^ «'« Plaintifl" theonlydefenee, t rttT,rr''"^^ *'^ ^^^^'^^^^• letter of the llth Mav 187" / . f '• ^^'' '^ C«- by them the bala^!^ Sis^Sl:;:; tlnte '^ ^'"""^ *^ '''' probably aware thev sii T f .? I>emerara, as he was them, 'ho do :j s t c r'":r^ r "^^'^'*^^*° order, and wrote to Sanderson^^- . ! ^ *' ^^^'^^ ""« question here is not to So th T 'T' ^"^ '''' pay this balance but Ts 1 > . . '^ ^'^''^'^ ^'^ «^°"ld .is.^..thati:^d^.::;;;Lr^^^p^ then, by withholding his wages, it wl^rb' fof i'^ cot 220 VICE-ADMIRALTY COURT. duct which the Law merchant would coudemn. This is a point of real importance both to the owners and masters of ships, and it has now arisen for the first time in this Court. It was elaborately argued and settled, apparently for the first time in England, so recently as the year 1848, in a case I shall presently quote. But let us, first of all, look to the text-books cited at the argument, and the rules they lay down. Kay on Shipmasters and Seamen, edition of 1875, fol. 1140 : " A master, no less than a mate or com- mon seaman, may, by misconduct, forfeit all right to pay- ment of wages. But, in the management of a ship in a foreign port, nothing more can be required of a master than the honest exercise of his discretion, according to the degree of ability and experience in business he may fairly be supposed to possess. Therefore, a mere error in judg- ment, even though loss may thereby be occasioned to the owners, will not justify a forfeiture of wages." McLachlan on Shipping, 3rd ed. 88 : " If the master be guilty of gross misconduct, as barratry or drunkenness, or exhibit gross incapacity, an entire forfeiture of wages will ensue. In the Admiralty Courts, if any loss has been sustained by his negligence without such extreme misconduct or incapacity, it is usual to deduct from his pay the amount of the loss alone," See also Williams & Bruce's Admiralty Practice, 169 ; 2 Hagg. Admiralty, 221 ; 1 Stuart's Vice- Admiralty Reports, 189. These doctrines are illustrated by Dr. LiisJiiiifjton — clariim et vcnerabile namen — in the Thomas Worthington, the case I have referred, to from 3 Rob. 128. " I am not aware," he said, " that it has ever been judicially deter- mined in any court whether a mere error on the part of a master, not tainted with any guilty intention or corurpt motive, would work a forfeiture of his whole wages." He then gives the rule I have cited from Kay, and puts many cases that have occurred, and repeatedly must occur, in which a master is placed in great uncertainty and difficulty, and, acting in good faith, must not be held responsible for THE ALEXANDKR WILLIAMS. ooi I rri • "^ Cmilt,,, s,va"ev iu'ti^^' '" !^°^' "' ""' ™™ "f tlj(. p- ;efusa. to «> . boui ;t ,^rr:'j' ""'r'™- master was suin^ for wnr.^/) 1 *^''*'°"' ^^'^re a continued in eo^nlt ^^r,:--'^^^- j-^ actually- thought, at Common Law weiPH.'!^; • l^'''" ^^^''^^^^> ho -d it must be taC, r^ay ad r " -^--ction. seamanship must no hi T \' "^' ''''' °^ ''^''^ ^f incapacitv In 1864 t «' ,"f !^b indicated generally refused a^orfeiture of l^sTl^^^''] '''' ''^ ^^^^ intoxication of a master ^^nf „ ^^''/^'^""'^■^ "f occasional enness, and of ^::r:7:z:::^^^^^^^!^ ^^-"k- as soon as he might have done * ^'^''''^ ^ I^*^'-* on the partr:hfr^::rri sr^^^"^*"^^^^- douce. Had the loan to Pn -tn ' ^''''"' '''">' ""P^"' 'mve had great rScdtv ''''•• ""''^"''^"^^•^^^•«"^'l deposit of the monef ^ S "?"•""'' '""• ^"* *'^« of his emplo^erZ", t ; Sfi^httt'^T ^^'^'^^^ ^ommon prudence he was bouncrto cfo 'l t) • T "' "' "' have heard this from fbp .1!//: / "'"^^^ ^^'^ should then applie,! to sLd ,„ 1''?° '°""°'': '"'" '""'""f promise At tl.r ..f "loreaso, l,ul eitracle,! no iuH tout r rr::;';""?'"" f""" '™ »« J ^-iu, and that his successor in command 222 VICE-ADMIEALTY COURT. received no more. I think, therefore, that I must restrict him to that rate. Anticipating this conclusion, the defendants' counsel urged that, under the 57 and 59 sections of the Dominion Act, the plaintiff was not entitled to costs. Similar sec- tions to these I have acted on in two or three cases in this Court, hut they do not apply hero, where the balance arises out of disbursements as well as wages, and the plaintiff could have paid himself out of the moneys that passed through his hands. The judgment will stand for $217.79, less 147.50, deduction in wages, leaving $170.29, with costs, and as the balance is small, and there has been a needless accumulation of evidence, I shall request the registrar, in taxing the costs, wherever he has a discretion, to tax them at a moderate figure. T. Corning and B. H. Eaton, for promovent. S. H. Pelton and N. H. Meagher, for respondents. ■i.ii THE BELLA MUDGE. (Delivered Octobeh 22ND, 1878.) Master's Wages.— The master of this vessel brought action for an alleged balance due him for wages and disbursements. It appeared from the evidence, though it was not alleged in the pleadings, that he had an interest in the vessel as part owner. While in command, he had been guilty of gross immorality and intemperance, evidence of which was pro- duced at the hearing on the part of the defendants; but the immediate cause of his dismissal was dissatisfaction as to his dealings with the vessel's earnings. The matter finally resolved itself into a mere question of account, and upon an adjustment of the accounts it was Held, that judgment should be for the defendants. Semble, that the plaintiff's dismissal could not have been justified on the ground merely of immorality or intemperance. In this case, the ship was arrested, on the affidavit of Wm. E. Mason, for a balance of $913.16, claimed to be due him mst restrict THE BELLA MUDOE. 223 !en justified on for disbursements and wages as master. It appears bv the reg.8try that she was owned. 13th March, 1874 bTsevora P rsons, of whom P. G. Carvill had eight sha es 7^U Pherson 16 and W. E. Mason 8, whom ! assumrfro^. t simdanty of name and some hints in the eviden e to he pamtiff, though this was questioned at th he'adn t and tliere ,s no allegation, strange to say, of his bein. [ part-owner, either in the act on petition of 'tlio reply Jl/e managuig owners m Halifax were Edward Mhroi Co.n pany in whose employ Mason had been for eleven ve a" and he appears also to have had an interest in lloS^^^ ship called the David MePkerson, jointly with som o . owners of the Bella Mud^e^ Having been employed in previous year he was engaged as master in Dece", " 1874, and on his arrival from Eangoon at one of the ports a ent of the owners, having lost their confidence from vaiious causes assigned in the evidence. As no question however, was raised at the hearing as to the riglH; tl"' St th n rif '""'' '' ''''' ^""^•^'^'•.y proceeding. Ihat the plaintiff, being a mavr-'ed man with a wife an"l family, for whose comfort his letters to Albro & Co she am to have been solicitous, should have been tempt ake on board another woman, with whom he coliabito passing her off as his wife, and recognizing her cMdren a. his own, IS much to be lamented, and he did ^1 acknowledging himself, as he did on several occas Si o habits, and was often, as several witnesses declare, nnd.lled With lupioi-, was a serious matter in the interos s of il Alexander niU.uns, and in the case of the Atlantic, 1 Lush Ir'e ImV ; ''"'''■'''' ^''""^'^'^ dismissal on tha score could have been justified. Had the voya-e been that either of those objections would have been ur..«.l LSrr£?0O t7' T' ^"-;^»-- l^ad remitted ir^om Amsterdam i/00, the ship was threatened with an arrest 224 VICE-ADMIRALTY COURT. for outlays, and the owners, after distribution of £500 out of the £700, were obliged to remit upwards of £630 sterling, with costs, they thought it time to interfere ; and now we have to look at the whole matter mainly as a question of account. Pi il',m^ m In the case of the Citif of Mohille, in 1873, 4 L. R. A. & E. 191, Sir Robert Philliinore held that in a cause of wages and disbursements instituted on behalf of a master, himself a co-owner, against other part-owners, the balance of account between the plaintiif as master and as owner and the defendants was to be inquired into and decided upon under the Merchants' Shipping Act, section 191. For the bulk of his claim, £1G7 19s. sterling, in the schedule to his act on petition, or to £154 6s. 3d. in his deposition, the plaintiff relies on an account stated, on the faith of which, no doubt, his proctor instituted this suit. Now, l must confess my surprise at the plaintiff's having been entrusted in foreign ports with the chartering and disburs- ing of this ship. We have a body of shipmasters in this Province not to be surpassed either as seamen or super- cargoes ; but Mason had not the same advantages as they of an adequate training. He is a good seaman, bat he writes a letter that is almost illegible, and he is evidently no accountant. When he applied, therefore, after his dis- charge, to Carvill k Son, at Liverpool, to lend him a clerk to examine and make up his accounts, they were found with the vouchers in a state of the utmost confusion, and the balance was then struck in the absence of the Halifax owners, including several charges which they dispute. It could not, therefore, on any principle of justice, be admitted as an account stated, binding them. It is only of the dis- l)uted items that I speak — the good faith of the others I take for granted. They are sworn to by the plaintiff, and Lave not been questioned. The plaintiff' 's charge of £44 lOs. 8d. sterling for one - third of the commission on charter, although it receives some colouring from Carvill & Sons' letters of 30th August, THE BELLA MUDQE. 22'' 1875, and 27th September. 1876. has no evidence either of contract or custom to sustain it. and upon the princTpL ]a.d down m Gardner v. McC.tckeon, 4 Boavan. 5 Tn Sht • '*..?-f' ' ^'''- '' ^^»- 7«6' McLachlan o of ,448 12s. lOd. for charges incurred in HoHand could not be set up as an offset to wages. The plaintiff cann^ re was^ justihable; and one of those sums has been already Those small matters being disposed of brin- us to the inXfr/ T ''T. ^*?-""°" ^•^•^•**^'^ *« ^^- "^^"p' -^^^^^^ Lbff n , T^ ^^ *'^' i'^"''^"^ ^Sainst the ship. If rgh fully charged, a balance is due to him. and it wolld be he duty of the Court to ascertain the amount by inspe Lg the accounts or sending them to a reference. If wron.fuH^ charged, notlung is due. and the case must be dis Js!ed' ihis Item, therefore, demands a minute inquiry The hrs piece of evidence is McPherson's letter o 11th July 870. to the plamt ff. in which he sayr: : " I think you had - better come out this voyage. If you should go another long voyage, xt is a long time to wait for motxey. and wan some very much. You must remit all you possibly can tins t.me. $8,000 at least. Now. in remit ing.'int you should send me half of your eighth direct, b caus if you send xt the other way, I will not get any of t un^l you and they settle, and I want some very much after you arrive. It would be a great help to me." ^ The plaintiff -s letter to McPherson from Amsterdam 16 h August 1876 begins thus : '< I wrote you by last maT I us etterxf received, was not produced at the hearing,, and, accordnig to promise. I send you enclosed first o due me. but it is about time you got some." In a post- npt he adds : '< I send Albro & Co. first paid amount of had as well tell them about the two hundred pounds." 226 VICE-ADMIRALTY COURT. How are those two letters to be interpreted ? Do they indicate a payment made by plaintiff to MePherson beyond the sum coming to the plaintiff hiiuself, and which Mc- Pherson was J;o credit to the plaintiff and retain to his own use, or a payment made to him as owner of two-eighths of the ship, giving him immediate possession of the money, but to be accounted for to his co-owner,^ ? Upon this point the subsequent letters and transactions may enlighten us. The plaintiff, in his letter of 14th August, 187G, to Albro & Co., says, without mentioning the ,t200 : " I send you enclosed first of exchange for i'oOO, and will send you some more as soon as I can ; but I must keep enough to pay all charges, as I will have no one to draw upon." In a letter of 17ch August, 1876, from the plaintiff to Mc- Piierson, some words in which it is impossible to decipher, and the copy sent me leaves them doal)tful, he says, speaking of the payment as about to be miiae, when it had in fact been made on the 14th : " Now, when I settle up the freight, I will send you t200 ; but this much will not be due me, and it will make it disagreeable (or disobliging) to the other owners; but I cannot help it; but I will send a statement of accounts, and charge myself with the balance, and then they can settle." This last expression is very significant, and is not easily reconciled with Mason's depo- sition, in which he says that, in accordance with the requent in McPherson's letter already cited, dated 11th July, 187(1, he remitted the £200 to McPherson, as one of the owners of the Bdla Mudr/c, wholly on account of the earnings of said vessel, and not on account of any private accounts, dealings or transactions of the deponent with the said David McPherson, and the same has been so accredited to him in the account annexed to the deposition as a draft remitted to said David McPherson. in his cross-examina- tion, in answer to a question, " Why did you not remit the whole sum, that is, the .J(i700, to McPherson, if he was managing owner?" he says, " Because I considered him one of the owners and managing his portion of the busi- ness. I would not say that McPherson was managing for THE BELLA MUDGE. 227 or bills, also corresponded with them concerning ship business I think I had a conversation with Mr wZ Ti/L 'Tdif "^; Tu'^r'^'- ^-^' ^^-* ^- ^ wiui me. I dul not lell liim llial it was correct or tlinf it wae mcorreet. I .old „i„, ,„ ,, „, , , JJ, "'J'^ ' iuiged Mclherson s account as correct." Such is the plaintiff's deposition; but, unhappily for t 1 ^\7"*^^^ f ^'' o" this point in almost e-ery par- McPherson, while receiving his one-quarter of the 4'500 the 4200 to he other owners. But it is clear tliat from the first he credits the .t200 to Mason, and held it fo h^ so cred ted. I„ his deposition, after stating that Mason rt r oVn?r T 1 ""■^^^' '''' "-* '^^ ^^-^ -^ e bTfor .in f-^ '-^^'-^-vledge the letter covering t^^^e bill for UOO. which sum he placed to the credit of M son in part payment of his said indebtedness, ariing out of private transactions between Mason and himsdf him "S tl ''"^'^ r r^'^""* '^"^^- ''- ---^ -^ ^g mZI r ^™''''^' '^ '""^ *'"^' ^^^"^^^ •'^^''^^•^t, ho adds ^ corr'ei: "^ P«e of Joseph Austen, acknowledged t be coriect. This is confirmed by Austen, who says^ that Mason, in his presence, admitted and acknowledge tint he account submitted to him by Mason wasi rr 't M^son ::-r "y^' ''T' ''' "^ ^^^^^^^ ---^^^' ^ luason said, ' Yes— when a thine is coirppf r i;i * tue 4200 because it was in the account." On this cardinal point it is clear that the weight of evi ^ourt fiom the necessity of deciding sevprn] of ^'ig othpr questions raised at the hearing, in which" a masstf les^i^ "MMP li i 228 VICE-ADMIRALTY COURT. mony and many letters and documents that are not evi- dence, were, as usual, produced. Reviewing all the facts of the case that are legally in proof, the Court cannot do otherwise than give judgment for the defendants, with costs. Weathkrbee, Q.C. and Graham, for promovent. •T. S. D. Thompson and N. II. Meagher, for resi^ndents. THE S. B. HUME. (Delivered August, 1879.) Re-opening a Decree.— The S. B. Hume, having been picked up derelict by the G. P. Sherjuood. was, after much risk and arduous exer- tion, brought into port. The values of vessel and cargo were appraised by competent persons, in whose estimate the proctors for both salvors and owners acquiesced, at »9,ooo, and the service having been one of a highly meritorious character, one-half, viz., 84,500, was awarded as salvage. Subsequently the proctors for the owners of the vessel obtained a rule to set aside the judgment and award of salvage, on the ground that their acquics.:ence in tlie appraisement had been given under a misapprehen- sion of tlie facts, and of the purpose to which it was to have been applied. The appraisement had not been made at the instance of the Court. The owners having refused to pay the amount awarded, thereby rendering a sale necessary; and it clearly appearing that a sum far less than the appraise- ment would be realized at such sale, and that, therefore, the award would be e.xcessive and unjust, the Court set aside its judgment and ordered a sale to be had. At the sale the vessel and cargo realized only 84,128, instead of 89,000, as had been appraised. Held, that the decree should be re-opened, and that the Court should take the 84.128, and not the 89,000, as the basis of its award of salvage, the same proportion being awarded to the salvors as before, with their taxable costs. Rate of allowances for charges determined. Where an appraisement is ordered by the Court at the instance of the salvors, with a view to a decree, and has been duly made by reliable parties, the Court will not allow it to be questioned. This was a case of a somewhat unusual character, in which three separate judgments were required before a THE 8. H. nCME. 229 bat are not evi- fiual settlement could be arrived at T' i„i Judgment of June, Tth 18^9 ■ nam covenng board, apparently by an iron vesso Th ' .nainsaU was torn and unfit for useiso also the fb TlL other sails were all riHit Thm-. „ "i«o me jib. ihe v-upe i^reton. Jhe details of the vovn^ro +;ii +i • • , there unnn ihr iQti <• * "^t, \ojage till their am va and lashed Thn °, ^"- -^^^' ^^'lieel was broken -o..asa fool of .Pterin .„„ «°bi„ , ^ „ its Xi„„^ i.%...y meWtoHol .nC: UlTrr ^f "4! Court. Ihcse have been of all orfera of meril, and I 230 VICE-ADMIRALTY COUUT. liave awarded derelict salvage from one-liftli, as in the ciiso of the Siflphidc, to one-half, as in the case of the Camhriihjc. In view of these decisions, the counsel of the salvors agreed May 2;jth, that I should examine and determine this case without argument. They f.greed also that they would acquiesce in an appraisement made hy competent persons on the 15th of August last, who estimated the value of the vessel as she then lay at $5,400, and of the cargo, consistinj,' of ahout 170 standards of deals and 100 cases of caimtd lohsters, at $3,000, the total value heing nine thousand dollars, without consideration of freight. " On this sum I award a salvage of one-moiety, bein- $4,500, with the taxable costs. " It is the duty also of the Court to apportion the amount 80 awarded. The brigantino is of the burden of 400 tons, of the alleged value of §9,000. She was on a voyage from Hamburg to Philadelphia, with a cargo alleged to havo worth upwards of $10,000, and freight about $500. 1 assign, in view of these facts, and of the risk incurred in reducing the crew of nine, all told, to six, one-moiety of the salvage, being $2,250, to the owners of the G. P. Sherwood. To Captain Purves, tlio master, I assign $500 00 To Charles Edwards, the principal su /or Coo oo To the other salvors, each I300 600 00 To the soamen of the G. P. Sherwood, according to their ratings 550 00 In all 94,300 00 To be paid into the Court, with costs, and the vessel and cargo to be thereupon released, according to the usual practice." Upon the delivery of the above judgment, the proctors for the owners of the S. B. Hume, being dissatisfied there- with, applied for and obtained the following rule 7iisi : " On reading the affidavits of W. F. McCov and J. W. Longley setting forth that the consent of said J. W. THE K. 1). iif.ME. 231 e-moiety, beiu,:; g to the usual '""iRlf.v, wlioreon tliu inil.rmf.nf ;„ m • l-n-os.'. to which Ft r^''' '""•'^''"*' "^"'^ "f the "'•t HHido. ana the case 1 r'" "" ''"^" '" ' • '^^" f5iyno(l, Juno '28, 1879. Tho couHont rofun-f.] fr. i"n fi,^ <• ' -"- or t;l^::t,nxt:■ti:;:■:r""^-■'' " TiiK S. B. Hume. " Monio. For Counsel. ^^-N;^l^^:f:;o^^^^ <"• A..«UHt 15 1878 now? T^"?'' '"^ *'"^ appraisement <'r.Ic.r of "he Co „T^ T"" "" "W'^-'"«'^n^ont under an «o^:"^c;:;::::;cr::s:;;:tr^^^^ '"""t "f August 15th, 1878 rV ust « f ' 'P^''"''- -•'*. and consent to its ^^.^ ^r^r^VZJ^''t" '»'il'»»« an award of salvage. ^ ^''"'* '" II J. W Longley, of counsel, with owners. N. I[. Meagher, proctor for salvors " Samuel G. Iligby. proctor for G. P. Shencoodr Aft(a' ai-gument of the rule iiUi H,« ,-„^ ™ tl.o «1, „( J„„, 1879, a" foZ™ ' '™"' "' «''"■ Tli« .„ . , ""^ ""'o ™'y difficult to deal will, 232 VICE-ADMIRALTY COURT. KiilvorH, and his valuation had not boon contradicted. This I nifiiHcd, and then the appraiHcnient of August, 1878, was discovered by Mr. Meaj^her auion<^ his papers, and put on hie on the 1st of June, 1871). This appraisement was then, as is still, insisted upon as sufticient f,nound for a decree, but I did not 80 account it. Where an appraisement is ordered by the Court at the instance of the salvors with a view to a decree, and has been duly made by reliable parties, the Court will not allow it to be questioned. This was decided in the case of the Scot mvood , ride. y>. 2/5, loitr, in which I re- viewed all the authorities in Williams and Bruce's Admiralty Practice, 235, including the VcniiH, L. 11., 1 Admiralty, 50, and the It. M. Mills, 3 L. T. N. S. 513. But, independently of the lapse of time and the delay in this case, which 1 can- not account for, the appraisement of August, 1878, had not been ordered by this Court, and was in no respect l)indin2; on the owners or the salvors without their assent. To put an end to this difficulty, therefore, I prepared the memor- andum of Gtli June, and when it was returned, signed liy the two proctors for the salvors and by the counsel of the owners, I concluded that the money value was agreed on, and that tlie owners were ready to pay the salvage and costs, and resume the possession of ship and cargo. On this basis I made the decree, and now it appears that Mr. Longloy misapprehended the effect and purpose of bis admission — that the owners have no intention to pay the salvage, that a sale must be had, and if, as »s most pro- bable, a sum far less than ttio appraisement is realized, an obvious and gross injustice will be done. The question is, can the Court redres . it and re-open tbt- decree ? If it can, I cannot doubt that it is its duty. For the salvors to carry off three-fourths, it may be in place of a moiety of the proceeds, would be a wrong and a reproach. No case of the re-opening of a decree or judgment was cited, nor do I find any in the books of practice in Admiralty or at law. But there are cases at Common Law affording an analogy, though they are not mentioned, either bv Tidd or Archbuld. THE a. U. IHME. 283 .sain in .1,0 ensuing ,e™, ac;!. i :,;" ,1^ J^^^^^^^^ show that the English Courts '^'"^^"°- -^^^^'^^ '^^^^ ;; This case is marked by some extraordinary feature, which have never cccnrvr.,1 i. f^, • ^""'"-'y leatures are not liiel.v to Icn: iL'^" "' t^^r"""' "°'' ^y iu v„,„„in„„3 co.esp„;;, j::^„::Lrrolrs 17 234 VICE-ADMIRALTY COt'RT. ' i It' 'ii"' I'iil' i![' 1 i 1 1 [ K t 'T 1 1 || _1„ ' *'" ,iji ■ tail r ■1 ^^n^c affidavit of the 23rcl instant, from which it appears that Messrs. Archibald & Co. took possession of the derelict ship and cargo and sold a valuable part of the latter at the in- stance of the owners and underwriters, and that the ship was brought into Court in consequence of a disagreement as to the salvage, $3,000 being asked and $2,500 offered. An appraisement was made by competent persons, 15th August, 1878, shortly after the ship was brought in, but not produced here until the 1st June 1879. The ship was valued at §5,400, but produced at the sale in August, only $3,100. The cargo of deals and canned lobsters was valued at a lump sum of $3,600, but the deals brought only $850, Mr. Blowers Archibald purchasing them, and the Hon. T. D. Archibald, the ship. The canned lobsters sold in Halifax, brought only $178 gross, so that the cargo ap- praised at 83,G00 yielded only $1,028. How is it possible that I can look upon the result and the suspicions it has engendered and which have been freely expressed in the course of this enquiry, without giving utterance to the ex- treme regret I feel at the course that was pursued. The derelict ought either to have passed at once into the cus- tody of this Court or of the Eeceiver of Wrecks, under the Dominion Act of 1873, cap. 55. The negotiations I have spoken of lasted till the 26th November, 1878, when I authorized the issue of a warrant, and on the 6th Decem- ber an appearance was entered by the salvors. An Act on petition was filed January 10th, and a claim having been put in by the owners, a commission to examine witnesses was taken out February 20th, and returned with the depo- sition of Edwards, the sole witness, March 19th. The cause was then ready for a hearing, but as the Court docs not move of itself, and knew little or nothing of the pro- ceedings, they remained in abeyance until the agreement of the 26th May, and the parties must accept a mutual responsibility for the delay. •' Then arose a new difficulty. The Court could not act on the last-mentioned agreement and award the salvage without an ascertained money value; and on the counsd IMI 235 having given their witten consent in ih. August 15th, 1878 I m-onnluZT '^PPraisement of ^li^tributed 84,500 llZfT "" l^'"''' ^''' ^ ^"oietyand turned out, than the I?' ''^™''' ^^^•^' ^« ^t l^^-^.^ -11, then, tha tin iT ,"?' ""^^ ^^^^ P-duced. It is tl- counsel f^'tro;,.:^^^^^^^^ "^'^^"'^ ^^^^"* °^ prehension, I took the unn.nn. ^"''" ""'^'^^ "^ "^^^^P" -;7ii/( Pearl, the mate of the Edith Wier, and others! there was plenty of room for the M. A. Starr to go between the schooners! The pilot of the M. A. Starr alone objected to the steamer's course, but even his statements go to prove that there was room. It will be seen that as the M. A. Starr neared the schooners, the British Pearl " broke ground " and hoisted her jibs, and if there was any easting in the wind, the schooner might be e.vpected to make a stern board, and thus close with the Edith Wier. This would narrow the channel between them. The evidtnce as to the direction of the wind is contradictory. It will be seen in the Harbour Master's evidence, that he told the master of ths Edith Wier on the morning of the day the collision occurred, that THE EDITH AVIER, 339 !oing slow, giving his vessel s jibboom was exposed contrary ,n th» u u Edward OXeary, the m-ister -nLn^ ,7 T harbour rules, and > master, acknowledges having been so cautioned Thus It will be seen tliat the schooner lidith WUr i. U.l , f u • her jibboom rigged out contrary to rule To 1 I , '' ''''''''"^ accidents resultin-- therefrom ri/, "^ '"'"'■ '*"^' ^^ 1S74). ^ "^eref.om. (Sea orders in Council, page 240. Ottawa. I have the honour to be. sir, Your most obedient servant, P. A. Scott, Captain, K. N. The principles applicable to such a case are very well set led, and have been illustrated and acted on in seve ' instances m thzs Court. The .1/. A. Starr, a sTZtl passing from one part of the harbour to another 1om S: ^^tt^r' "^i-d by the bowsprit and ^.C ot the Lhth lUer, projectnig twenty-five feet from the wharf, where she was lying, contrary to the Harbour I e! lahons, which are binding on ships and vessels at ^he ot the Llith If UT, and he excuses himself by the fact that bo was forced out by a vessel getting in be lind h m an' would have passed to the other side of the harbour l"d t weather permitted. It appears, then, that the projection jvas not caused altogether by the neglect or carelesl o he master; it may have been his misfortune as much a Ins fault ; but of itself this is no answer to the clair The witnesses concur in saying that but for the projection there would have been no collision ; and the harbour ma wanied the captain that he was violating the ruleTlnd at he would have to rig in the jibboom,^or hau ast i-^ or run he nsk of what might happen. This is the In: guage also of the 8th rule, wherever a main-jib or spanS- boom IS rigged at the wharves so as to incommod'e other acculent. but the cases on that head do not at all apply It IS another aflfa r if the If J q/. . / "'imy- bandied .nd b- ' pv i '^''^'•'- ^^as not properly luaifid, and bj nei uwu rashness or want of ,skill brought the mjury upon herself. In the case of the Virgil 2 W 240 VICE-ADMIKALTY COURT. Bob. 205, Dr. LusMngton says :— " An inevitable accident in point of law is this, viz., that which the party charged with the offence could not possibly prevent by the exercise of ordinary caution, care, and maritime skill." So much for the Edith Wiei: And now for the M. A. Stan: The rule is laid down in the case of the Marsapia, 4 L. E. P. C. 212 :— " Here," said the Judge, " we have to satisfy our- selves that something was done, or omitted to be done, which a party exercising ordinary care, caution, and mari- time skill in the circumstances, either would or would not Lave done, or would not have left undone, as the case might be." The view taken by the assessor of the facts in proof is in entire accord with my own, and I need not repeat the circumstances detailed in his letter. It was urged that the British Pearl occasioned the mis- chief by suddenly breaking ground and obliging the M. A. Starr to alter her course. But the British Pearl committed no fault. She was exercising her right in weighing anchor, and could not be held responsible for a collision which was attributable only to the ofi'ending jibboom. I find, there- fore, the Edith Wicr liable in damages, to be ascertained by a reference, with costs of suit. EiTciiiE, Q.C., for promovents. McCoy, Q.C, for respondents. THE IDA BARTON. (Delivered in 1879.) Derelict.— The steamer Naples, with a valuable cargo, bound from Philadelphia to Liverpool, fell in with the Tda Barton, derelict, about 320 miles from Halifax, and towed her to that port in fortv-eight hours, breaking and spoiling several hawsers in so doing. There 'was no special merit in the services rendered. Held, that the salvors should receive one-half the appraised value of ship and cargo, all costs and charges to be deducted from the other half, and that the owners of the steamer should take one-half of the salvag ' awarded. The rule as to salvage on derelict stated and cases reviewed. THE IDA BARTON. 241 mmms al S5000, ,.„„ .hem?ar„.rea, X :™"" T?'"'' Seper M., are ,.„,.,1, S286 2 7 B 'i I^'"'?' ™ " °' :!"it=sr tx£ ■="-''•"■ '«;.e vf :? ^t: ::4:rzr..r ;rea"r r 242 VICE -ADMIRALTY COURT. extravagant. In the Fortuna, 4 Rob., 193, two-fifths wore given. In the BlendcnJutll, 1 Dodson, 414, only one-tenth, the vahie being very large. In nnivc ct al v. Briij, 1 Mason, 377, Judge Stroiifi, after citing the ordinance of France, and tlie rule generally adopted by the Northern European States, observes that it may perhaps be gathered in the general sense of the maritime world, that the rate of salvage should not in ordinary cases, range below one-third nor above a moiety of the value of the property. This was said in 1868, and in tlieEwd Grove, in 1835, 3 Hagg., 221, Sir John Nichol said: — "In civil sr-vage, for mere assistance to ships in distress, there is no fixed proportion applying to all cases, there is a discretion. In derelicts, indeed there are in practice some limits. When an owner appears, there is, I believe, no instance in which more than one-half, though seldom less than one-third, is given." In the Inca, 12 Moo. P. C. 19G, Swabey, 372, Dr. LKshiiujton said in 1858: "it appears to be perfectly clear, after a examination of the previous cases, that no instance could be found in which the salvors had had delivered to them a sum exceeding a moiety of the proceeds ; and he then refers to the cases of derelict cited at the argument, from 2 Hagg. 90, 3 Hagg. 53, 168. Three cases are cited also in Kaye's treatise on shipping, 2, 1061, where more than one-half was allowed. In one of them, the Jiuifie Bastian, 5 I{ob., 322, there were two successive sets of salvors, and the ship had sunk in the meantime, and two-thirds of the value, being A*3,400, was given. In the linsche, in 1873, L. R. 4, Adm. 127, the net sum to be dealt with, after deducting the expenses, was i'6,294 ; and Sir Robert PldlUmorr, in < he circumstances of extraordinary merit and gallantry under which the services were rendered, awarded the sum of i;3,290, of which he assigned only iSOO to the owners of the Scythia, the salving ship. In the case of Spraguc ct al, 2 Story, 195, when the libellants insisted on three-fifths, the Judge did not see sufficient grounds to deviate from the general rule of a moiety of the proceeds, but gave a moiety with the libellants full costs, and expenses, which were to be a charge exclusively upon the other moiety. This was done also in THE IDA BAUTON. the Rduinco, note 2, llnacr on o,„l ;+ • ., follow here. " ' '^"'^ '* '" ^^' 243 e nile I shall The .li.Wb„,i„n of ,,,e,„,v„,,„ „.!„,,„, ,„„„„.__,_ $1,902.50. This ft will 1 ''^'" one-half-being every day a cousiderabl sum ' ^'T'''' '°'^*"^S to the master of the V 2 who i ;"' ''^^^' ^ "^^'^^ sibihty. with the cargr n^'oVr""^ ' '""'^^ ^"^^""- voyage, but was justified by the T' "' '"''^*'"S '^'"^ (lecisions in savin/." . tendency of the recent $0-00; to ci" e?rrfhr "•";" ^^'^^' "^^ -»-^' charge of the derehcV n /^^f■''«"^^ ^^^er. who took boarl incurred omir' .""^, *'' '*^^^^' ^^"^ ^^^ «" §250; and t eaTi of ir """"""' ^""^ ^'^'^^^^^^^^^ ^125; the balance of §7 2 ool T'r"- ,'? '^^^^^^^^«"' McCoy Q.C, for promovents. i^ . li. Meagher, for respondents. ■fmmfim 244 VICE-ADMIRALTY COURT. THE JEAN ANDERSON. (Delivered in 1879.) Dismissal of Master of Ship — Insolvencv of the OwNERt. — The ship yean Anderson, owned at Cliarlottetown, P. E. I., was sold by the agent of the owners at Liverpool, England, to the claimant, who agreed to go out to Charlottetown, take charge of the vessel as master, and bring her to England for a certain monthly rate of wages. He accordingly came out, and having been put in chargu, proceeded in her to 1 .ctou, N. S., where, on the 7th October, 1878, she was attached by the official assignee, the owners having gone into insolvency. The claimant remained on board, not being recognized by the assignee, yet not being dismissed until the 22nd April following. On bringing suit for his wages up to that date, it was contended that the insolvency of the owners had ipso facto put an end to the functions of the master, and was equivalent to a dismissal. Held, that the master having been in legal possession of the ship, both as master and purchaser, and not having been dismissed by the assignee, was entitled to his wages to the full extent of his claim, with costs of suit. ^r\ This vessel, owned by James Duncan & Co., of Charlotte- town, was sold by their agent. Sir James Malcolm, at Liver- pool, in August, 1878, to Captain John Williams, the pro- movent ; and an agreement was signed with their consent, by which he was to go out to Prince Edward Island, to take charge of the vessel as master, and bring her to England, he being paid .£10 sterling per month as wages, from the time he should take charge of the vessel at said Island. The price of the vessel was .£1,300 siovling, and the mode of payment provided for in the contract. Williams accord- ingly came out, and, having been put in charge of her as master, proceeded in her to Pictou for repairs, which were completed at the slip, when Duncan & Co., having become insolvent, an attachment was issued on the 7th October, 1878, which was levied by the official assignee at Pictou on the ship. The plaintiff remaining on board, not recog- i.ized by the official assignee, either at Pictou or Charlotte- town, but dismissci] by no one, clainif? wages to the 2'2nd April, with some small disbursements, and had the THE JEAN ANDERSON. ' QJfi Court, and a distinction was uL'i ? f ! Admiralty liankruptcy Act of 1809 and tie! ^"^ ^^^" "^^ I'^F'ial n<'W question, and it ^Ls 1/ ^«'";"'«» Act. This is a »'nvo looked, of our e at th. T' 'J'''''''''''' '^^^"-l- I "f tl.o Englisirrt^lnrTr-^r «»*'-• ^^th section A''--ltyi?u.isdictn.r;el astlte''":"' ^^"^^^ *^'^ tlio Canadian treatises ,„ ^7* *?' '^"^lo^'ous cases in "^ "Pinion timt 1 :H:t to lort""^ ^^'' ^"^ ^- ;-"t of wa,es and disb rsement "nort 7'" '" *'^ ^"^- '"'ing a transcript of the lOlst «? r ' 5,' ^^' *''" ^'-^^^ «''iri'ing Act. vecogni. the r L 'T.f '''' ^''''''^^^'^ "f this case shew its neces 1 2 i "" ^ -^•^'^"^^tances ««cl 8oamon. See a^so 2^ ^'^^ t^'«, P^-«tection of masters ^--•'i^.T.B.lt;^:--;^-^^^.ent 'naHter. and was Cival n toar ' ">' f^^'^"^ «^ "- wa« cited for this po t on Inl •? ' ^"* »« '-^"^hority i"« Of Chief Baron I' rin V '' T °'^^' *^ '''' -''^-- '^•"' title of th: shh; p " d'" '''!!"' ^'«'^' '^^ I^«--ion •^"•1 attachment to he a'srl"."" ""* ^^ ^"-^-"^^ -^" the same rights^ T ! ^ :'^^^^^^^^^^^^^ "'"Htor, the question then JZL.^ T''''^'^' "wnors. under the special conlvlf . T''" ^^^^^ha- the ^Vthout cause. H^Tas ^ >' ' ''^"^^"^^^^ ^""^ «lmracter of purchaser and Jl ''"'T'''' ^" "^^ ^^«"We '»« part of the con rait TvJr ' Tf '''''' ^'^^'^^ *« ^'^'^^ „th.-.r ix.rt ••- T' , ^ setting sail for Liverpool or so-p SMI. '>'«tliertI,eas.s,gnc>..atCliarlotletown, 246 VICR-ADMIRALTY COURT. Mr. ni<,'<;s, nor the nssif^nco at Pictoii, Mr. Glonnio, under his iustructions, had made up their minds what to do with him. Glennie pays the wages of the crow, but liad no orders what to do witl. the master. Ho then discovers that ho is not master because his name is not on the register, and refuses to iind hini either with food or money. He then pays his board to the l!)th December. Now, it is true that the plaintiff's name ought to have been endorsed on the certificate of registry, and it was intended, no doubt, to have been done before he set sail for England ; but no case was cited that this omission precludes a master's recovery of his wages where he has been duly appointed and acted as such. The plaintiff's applications to Higgs ' re equally unavailing. He sends him throe letters from Pictou, which remain unacknowledged. He goes to Charlottotown and makes every effort to obtain a settlement with Higgs, who would neither pay him nor givo him any satisfaction. This may have arisen from Mr. Higgs' disinclination to incur any responsibility ; for, while it appears from his de- position of tiie 3rd ult., that no assignee having bsen appointed at the meeting of creditors, he became, and is now, the assignee of the estate. He adds that the firm are still trying to compromise with the creditors. He cannot say what offers they have made. They have not yet effected a compromise. Now, if they had succeeded in this, and their property passed again into their possession before April, when the plaintiff was obliged to leave and accept other employment, the firm and he would probably have carried out the contract which has been defeated by their misfor- tune, and by no fault of his. Under that contract he became master. The assignee might perhaps have dis- charged him. This Court duly invoked, had power to remove him. He was permitted to remain in charge, sleep- ing on board and waiting the final issue. Why then should he lose his wages and his time and be expected to board himself, and be denied even the small disbursements he has paid and compensation for the personal liability he has incurred ? I think he is entitled up to the 12th April to the amounts he has claimed, less the last item of $11.90, THE MARTHA. 247 "I'ipinng and AduaW . ' / s'''."''. '' ' '' ^'^^'^'^ns on i^^-ow.. ami Lu«hi.,tot 109. "■''' ^''■''" ''^' a"d THE MAIITHa. (Delivered in iggo^ ^S;^^^.^T;:,S-;.^J-. r.n .,„,e near .He „ou.. o^ °ff '-'Ra.n. Substantial service ex Ln , "''«'^'^""'""'« '''■■'herinen in gettin J The salvors being, as they cons'ijetd "' T'" ''^^^ ^^^^^ ^^^ ^enJe "/ «° 'he Court, and it was ''^' '"^'^-^"a'ely remunerated, applied the three salvors, with costs. ^ '" ^"'°""'^ P^'d '"to Court for 0" a voyage from LivorZ Ho tliL " ^^«"nty of Halifax. It was a thick fog wlnhelt '";!'/*' ' '''''' °^"««^t. -/- fi% miles frortaZ^'^l^t'T''''^''''''''^' fishermen came on board and 1 , ' "*^ig'^'>ouring «Jn-p by throwing 0-^0;" ""'''''^ "^ ^'S^^^^^^^S ^vereto be paid ^$4 a, ie' Th " ''T' '"' "^"^^^ "^'^^ return next lay to ass^ n" ./ '^''''^'' '''^''^ tl^em to ^or which, if tlfe su ed t "" ^'''^' "' *^" ^'^^^ ' Some of them came Sng tr^n' "^ ^'' ' ^--• Gammon, the three promo ents, ^^^'f °""^^« ^"d James ^'ith the aid of the 0^7^! f ''' '•"^^'^■"«"^' ^nd She was then moored and /'''f ''"' ''' °^' "^« ^'oel^- -gent for S14 ea.h o « t T'''' ^'-""^'^ ^^'^^^s on hi« ' '^f'li'-ing his order to U. This I 248 VICE-ADMIRALTY COURT. think, he was not justified in doing, nor did Gammon know that it had been done, Levi BaUister, one of the defen- dant's witnesses, says that Gammon worked the same as the rest, and, although he is not quite of age, an objection on the score of infancy was rather intimated than urged at the hearing. But it was necessary to have the ship in deep water. She was in a dangerous position and had a storm or even a considerable breeze come on, she would have been lost. No evidence on that point is so emphatic as that cf the master himself. He required, too, the aid of persons acquainted with the locality and the lay of the rocks by which he was surrounded. Next morning, accordingly, on the 19th ult,, the three promovents came aboard, and after some hours of active exertion, the ship was got into deep water, and was afterwards brought by a tug-boat to Hali- fax, where she has undergone extensive repairs ; and this suit having been instituted for salvage, and money paid into Court, the question is, has enough been paid in? One of the McDonalds and Gammon were examined, and testify, that the master, on the morning of the 13th, gave McDonald charge of the ship, which the master and the other witnesses for the defence deny. Any imputation on the plaintiffs of a fraudulent purpose in the transaction is dis- claimed, and I must attribute their evidence on this point to a misapprehension, for I cannot believe that the master would surrender the control and management of his ship to any of the promovents. There can be no doubt, however, that they rendered substantial service. For the third day's work they offered to accept §30, and the master's offer of §2 a piece wi.s a mockery, and well just'*\ed them in bringing this suit. The master says himself, that they got a line and lead and took soundings between the ship and deep water. They got kedges and placed them. Chas. McDonald remained in the vessel telling them where to put the kedges. Four times the kedges were removed. Then after McDonald's directions, he directed which way the kedge was to be placed, and the men hove accordingly. The master tlien THE ALHAIIBUA. 249 ■ wlifnl, h. ■ ^""'^^"g tlieir very moderate demand bv lio tempestuous weather no ,W "' ^^^T^^'^^'^ "'^re is pnf'l, f..v ni 1 , '^"'^' representing S-^t ?ammo„ '''7'°' ""<' '"'"^S" McDonald „„ ">« ''"» »' ..ol see what ihevmiih?',''''"*"'''' ""=''■'■■'.>'. and did !-ge,.heow„"7we™twr ""' '"^ '™" "^ '"= cifod ,-n IP .^^ ^- ^^^' *^^ ""° ^ '^^' ^^'^^ *^ «^'^««"er on poit bow. Saw her hghts about a point on the porj 252 VICE-ADMIRALTY COURT, The next thing we saw was le bow. I reported it schooner we ran into. This was about a minute after, or hardly that. The vessel was a little on the star-board or very nearly ahead. Saw no lights — only her sails and the hull. Our vessel was heading straight up the harbour. I reported the second schooner, and sung out, " Hard to Port." Shortly after that we struck her. I first saw the schooner's lights when we were in the act of striking. There was no person forward on the look-out but myself at time of collision — the night was fair and calm." On his cross- examination, he was asked : " Was there anything to pre- vent you seeing the first schooner's lights half-a-mile away from the position the vessels were in ?" and he answered : " I dont know of anything to prevent it." Now, the Hem lay about 100 or IdO yards from the Eliza Smith, on a clear night, yet the look-out never saw her lights till she was struck. But the point is, did he see her or ought he to have seen her half-a-mile off independently of her lights alto- gether. "The first schooner," flie witness said, "did not prevent us seeing the second schooner at all. Ghe did not shut in from us the schooner that we ran into." He adds, " The steamer was about 200 feet from the second schooner when I gave the order, "Hard to Port." It ^.-^ht have been half a minute after that when we struck ' cr. I saw her port light burning." The captain, in his deposition, says that he was standing on the bridge, having slewed down to half-speed after passing Meagher's Beach. He saw a red light (that was the first schooner's), distant about four or five lengths of the ship, nearly ahead. He then ported a little, and slowed down the engines. He altered the course not more than a point, just enough to go clear ; but, strange to say, did not see the second schooner being ahead till reported by Keating, when he reversed full speed, but knew, he says, she was so close that he could not clear of her. It was all done as fast as you could call and answer. He saw no lights on board the Hero until after she was struck. But why did not he see herself, f: > ,n,ys, the mnon had just gone down and the night waf ^ ,£. ' I attach little value to the alleged admissions of tho ^aptain, THE ALHAMBRA. 253 me abundantly obvious that the look-out was strangely de- fective, and, that in seeking to avoid the Elha Smith, the steamer ran, without necessity or excuse, into the Hero and the evidence of McLellan strengthens that conclusion. The t^Tnl ^,'^^•"^8 '^^en at full speed till after midnight and Mithin a short time thereafter, reduced first to halJ-speed, then for a fev. minutes run slow, and immediately after re- Tersed at full speed, when the collision could .ot be avoided. At lull speed, the steamer usually runs about eight knots which requu-es 23 pounds of steam. Under 18 pounds of steam, on fine weather, she would run seven and a half The view which the nautical assessor takes of this ca«e appears by his letter, which is as follows : The Hon. Sir. IVm. Young A >cle 3 of the - Regulations for preventing coll.sions at sea" ^vo^H ust be eclipsed. Assuming that the evidence of those on board th.w IS correct, that her head wa<; W m w , , "^ ^'''■<' ^1! I. u ,;■ ^- ^^•' ^"^' a'so that of the master of th^ it-;;t\'irr«?r ''•"'"«» - -'- "•.■-:- :i" •' ""p"'- <" p'»™. =>nd ,ta, ,i,c h™, whfch ,v.,t .fri^ "' , ;=::.": sir r,:s"U'fj;:"4r.': "f -"'■ " reverse full-speed. ^ ^'^'^ ^"'^ °'''^"s g'^en to But it cannot be concealed that just nrevion.; tn tt,<. i • 1 nave the honour to be, sir. Your obedient servant, P. A. Scott, Captain. R. N. 254 VICE -ADMIRALTY COURT. Cases of colHson are of rare occurrence in this Court, there not having been more than a dozen d;nir>;^ *ho many years I have presided in it. The law as t-j the navi- gation of Canadian waters rests on the Dominion Aot of 18G8, already cited, v.'hich is drawn vjhieiiy from the Imperial Act of 1862, 25 and i'il Vic, cap, G3, and the second section of it, with its articles 1-20, is a literal transcript of the regulations, made under the Act of 1862 by the Home Government. The law previous tu the Act of 1862 is oost illustrated by the case of Tuff v. IVirma.;, 2 C. B. N. S., 740, confirmed on appeal, ia 5 C. B, In. S., 573. On the 1st S^btember next a set of new regulation!; will conv.; into i ;rco, whic^j will doubtless attract the attention of the Domlhion Government and Legislature at its next session, '.'n Quebec, as might be expected, from the resort of shippir.g to the St. Lawrence, and the dangers of river navigiition, collisions are more frequent than nith us, and several judgments thereon are to be found in the t 'N o volumes of reports edited by the present Judge Stuart, ; extending from 18,36 to 1875, and containing much valuable and learned comment on Civil and Admiralty Law. The last two decisions of Judge Stuart published in the Quebec news- papers, the Attalia, in 1879, and the Govino in 1880, illus- trate the rate of speed permissible to a sailing vessel running through fog, and the different rules to be sometimes applied to a collision inside and outside of Canadian waters. In view of the facts and the law applicable to the case in hand, I pronounce the Alhambra liable in damages and costs of suit. Several claims on file by the owners of the cargo will be referred to the registrar alone, or assisted by one or two merchants, as the parties may desire. McCoy, Q.C, for promovents. Ritchie, Q.C, for respondents. in this Cotu't, THE ROWENA. Oxii 4UOU THE EOWEx\A. (Delivered April 27, i38o.) Salvage — Conduct of S\rvnR« Tv.n r>„ < • . Pnnce Edward Island, after passing th.ough the Straft o cln o we U aground on the east point of the Island at low tiHo aa that position an night, and having pounded 'Ze'what : ^ r:^^ but not so as to cause any serious danger, the captain and ere in the morning went ashore to procure assistance. A part of the crew returned to he during the day, but did not remain on board. During the n g the vessel floated off, and the following n^orning was fallen in '^1"^ e Rcfonn. n^ho sent a crew on board, and brought her to Halifax a a derelict. The captain of the Ro.ccnn, having procured the as^tt/ , sought returned to where he had left her, aftl^bot^vlLt h^d r^o^: of sight. It was contended, on the part of the respondents, that the Ro2venu was not a derelict; that the salvors had acted improperbntalnge vessel off to Halifax when they knew she belonged to the Is anS and ,h^^ they had forfeited all claim to salvage by embeLing lom^ of" thets;eS salf,t'". 'thl?.' ''"'""' "'' "°' " '^'"'"'' ^"' °"'y ^ -- of ordinary £Zt tLe sVlvo? 77°' "'' r' '"'"'' °' ^"'^ ^"'^^'^^ embezzlement ; but that the salvors had not acted rightly in taking the vessel so far from h« home; and therefore only ^300 was awarded on an appraised vilue Tf This is a case of salvage brought before the Court under circumstances of a very peculiar kind, and requiring a close and mmute investigation. The litform, a fishing vessel the burthen of 56 tons, belonging to Lunenburg: having bi ought the Lotoena, a brigantine belonging to Prince Edward sland, into this port as a derelict, the warv.nt was issued by the acting Advocate General, on the affidavits of the tTievITf '^°1V'^*^1 ''''' ^' "^«^^V--m, alleging that they had found her abandoned off the east point of the Island, having no one on board, with all her charts, ship's papers chronometers, seamens' clothes, bedding, etc. taken out ot her. The owners having no representative or knosvn agent here and the salvors being eager to prosecute their voyage to their home, I directed their proctor to file an act 256 VICE-ADMIRALTY COURT. OH petition, pursuant to our practice, and to adduce his proof. Five of the salvors, who had concurred in the affi- davit, were, at my instance, cross-examined, on ])ehalf of the owners, very fully and minutely by the acting Judge Advo- cate. The Reform then pursued her way, and immediately after Mr. Lefurgey, the owner of the liowena, arrived in Halifax, and laid claim to her, and on giving hail for the salvage that might be awarded, the vessel was restored to him. On his reply being filed to the act on petition, subse- quent affidavits were put in on both sides, but without cross- examination, and upon this evidence the case was argued before me on the 14th instant. It is undisputed that the Rowcna, having sailed on the 12th of July from the Bristol Channel, in ballast, bound to €ascumpeck, to take in a load of timber and deals, passed through the Strait of Canso on the 13th of August,with a crew consisting of William Wright, the master, Daniel Gorstead, the mate or first officer, and four others, including the steward. That on approaching the East Point, the look-out man reported land on the lee-bow, and the wheel was promptly put hard-up, and the main sheet let go. The lead was at once cast, and no bottom was found at a depth of over ten fathoms. A second cast was made immediately, and about the moment the lead touched the bottom the vessel grounded. It was about low tide, and all hands began to discharge ballast. She was then apparently quite fast, and laying still. About three o'clock the next morning, the 14th, the tide being then rising, the vessel began to move, and pounded somewhat upon the bottom ; and about half-past-seven, when the tide was falling, the captain and crew left the vessel, to go on shore to get assistance, and to telegraph to the owners, intending to return as soon as practicable. The vessel was then between one-half and three-quarters of a mile from the shore. Now, here is a vesssel appraised by consent at $5000, which had been pouuding somewhat, and was aground, and in some danger surely, be it great or small, left not by the master only with the boat to telegraph and get assistance, as would THE ROWENA. 267 and the whole of the rpw ! ^f'^"^«on. ^vhen the captain and crow with one n .T f ^f T' '' ^''''^'' '^^' ^-^^- vessel and fu eZl hZ T ^/Y"'*'°"^^' '^"'^^^^'^^^ "'^ clewed up. ::!^:!^\C':^i^'7'''V''' ^^^^-^^ Bome time, and again retm-n Tt'o ■ Z ""f "" ""'"''^ vessel hard and fast, both anl r ^ u/ tw oTtT' "^ iieads, with the imminent risk of I,, in- ^^"^ ''''^^ night, which actuallX^^^^^^^^^^ ordinary, as the master beh" e ' an 1 T' ''''''■ that the vessel was not insured!' '''"' '^"^ ^^■°"^' Pul^bf ribrttr'^ "^ f ^'^"^ ^^^^'' "^^ 1^"^. Point,^sawthebri;nS.e:;^W^ '^ *°™^^ ^'^'^^ from south-west bbw^^. iS ' .' ""'• ?"^^ '^^ "^"'^ flying over her but ' m ?, • ° / '''' '^'^"^ "^"^ ^P^'^-^v one of her he;d .i'l? V?K '" '" """ ^"^^ '^'^^^' - ti-y were':uh:;'tim .r t\r;::;"'x r^' "^'• hrigantine!ami?b:::^^d^ tir^,5?: 'T "^^^^^^^'"^^ lowered a boat with three men Two nf' "^^^'^''"l'"" ^^^^^ and findincr as thev 7.1 ]T\Z ''°°' """"* "'^ '^o^^'d- the boat reCedTo JlTsron^^ aTlrif ^-^-^^^' men. making eioht in on a .i »iought other six another ^^^^'IZ^! ^ ^1^:^:^:^ ^ f- navigated the 7to,-,«„, and hro„»ht itw , ''\'^™fn'™'-S ca,«„ „, the vessel, he .etSd roi^s " S to Eas^P ""^ on the 15th, abont eight o'clocic n m ,,? , "' *o.. n:e„ to assist "in get ^ i^-'i^off'tf™'.' .ne.sta„t,rot?i„-:zSi^^^^^^^^^ Such are the facts, r.-. i^^f ^,-,. „--i -, , one, of which I shall ^ : . , ' T ""^ ^ "^'"^ "^^*^"^^ i snail ,; .o.ntly speak, is in dispute. 258 VICE-ADMIRALTY COUHT. It is denied iliat the lion na was a dorelict, nnd, on tlio authority of*)', AquiJ ■ • ■''.ilob.87,nn(lthoC7r/mst'. Swabey, I'iO, and V, itli a view to ray own decision in tlie case of the Scntmrooil, in 18C7 (see aiitc, p. 25\ I tliink slie was not a derelict, oecausc her recovery was evidently contemplated and inti udod. But, admitting she was not, if the salvors acted in good faith and believ^'^ '■i' -as, their equitable claim is not defeated. Th^.'^ may still be salvors, though in a loss degree. Then it is urged that they have forfeited any right to salvage by taking the vessel away from her proper home, at considerable risk and with incompetent navigators, to llnlifax. They knew tli it the liowoui was an Island vessel, though they had not been on shore and knew nothing of the crow being there. They knew, however, that, between the 14tb, when they saw the sails clewed up, and the 15th, when they saw them furled, -ome persons had been on board who had done this work, and, as they might i'airl infer, had an interest in the ship. This is the chief liii- ficulty in the way, shewing too great an anxiety to secure a prize, so that neither party, in the view I take of this case, is free from blame. If the ship, being adrift, was right- fully boarded and in possession of the plaintiffs, I cannot agree that their passing by the Island ports autl preferring Halifax on their way to their homes nas of itself a for- feiture of their claims. The o ly case cited on this point was the EL I'ora Carlotta, Hagg. loG, which diff-jr^ widely in its circumstances, where the port to which the vessel was taken was extremely inconvenient, and the course pursued by the oui.ors in the li'ghest degj-e injudicious. In the case of UEspcrance, 1 Dods. 46, the salvors were justified in taking the vessel salvefl u Heligoland m. placj of an English port. The cnse o: ihe Scptunc, 1 W. liol' 297, is not analogous to ^ Ni ^ther does the case of tiie Lisbon, 1 Lush. 128, res( ^e • present. The next defence is a charge of embezzlement. I have already cited the affidavit of the eight Bcamen alloging that THE IIOWENA. 259 .linrrf, ?? : «'"■'""""'"'»•». »''tt,r.cn'» clothes, W,l. ""ti"n-, charts and chronometers. These ix^n ,.mi m lioanl „ r ?: "'"'"'OMlyiirticIallmt remained ti.o''4t o'r"tt of,i,r'™ "■"' "° ^""'' «°°"» •■•» "• m „Tn d , I";*"" ™ ""^ """ "'"""' "" '- "»'- I am no V , '"'"SO""'" o" i> m»lorml fact. Hannilv 'i.i<. . award the »a,v»,Vo;a;;v-o"d:i"::sn:-::: 2G0 VICE-ADMIUALTY COURT. iiiK SGO to the master of the 11 form and ijilO each to the eleven men on board the Itotcena, making in all $500, with costs. T desire it also to be understood that the reception of the evidence i this case is not to he drawn into a pre- cedent. I received it on both sides under exceptional and peculiar circumstances, and the present practice, as 1 have reason to believe, will shortly bo superseded by a sounder and more legitimate rule. McCoy, Q.C, for promovents, N. H. Meagher, for respondents. THE EOYAL ARCH. (Delivered April 27TH, 1881.) Salvage — Derelict — Re-opening a Decree. — The steamer Zealand, bound from Antwerp to Philadelphia, fell in with the Royal Arch, aban- doned, and in twenty hours, with but little difficulty, townd her into Halifax. The Zealand was valued at 8275,000, for vessel and cargo, and the Royal Arch at $8,300. Held, that 82,800 should be awarded. Subsequently, it was discovered that the appraisement had been mis- understood, and that it should have been construed so as to make the total value of the Royal Arch only 87,500. Held, that, although the counsel for the Royal Arch had acquiesced in the appraisement and decree until the error was discovered, yet that they were not shut out from applying for relief, that the decree should be re- opened, and award made upon the basis of 87,500, the same proportion I" 'ling allotted to the salvors. Recent cases upon the question of re-opening decrees cited, and the rule indicated. This barque, laden with salt for Halifax, was abandoned at sea, the crew being exhausted and worn out by the labours of a tempestuous passage, and then rescued by the steamshi\) Minnesota. On the 7th November last, she was found in latitude 42° 30 ', longtitude 59°, about ninety miles south of Sable Island, by the Belgian steamer Zealand, on her passage from Antwerp to Philadelphia; and a boat's crew having boarded her, and an attempt to tow her THE ROYAL ARCH. 261 ed, and the rule nefcated by the bronknirr ,.f „ i but the .nmcuity Tf 1" . , ,r '" °°'''""« "'" '■"■■I"''. work, biitafterpourii,..;,, „T£r , i '""^ ™»''' "<" been afrai,! to have gone across IW.;, , "''' ""' ''"« i" tl,oco„,mio„ we found h "■ all , , .° '" "'° ''"'■1"<' «»» any „„„,,„ in b„ar,Ih,g 1 "r' " ' 1^ 7* "°"»';'- «'"<> miles from iNeiv York i,,,! T;-n' , ''^ "™ "^i""' 700 *ch ,„rt t„e, ,.n:;t;u yli e;kr„r a^ ""^•' '? «:;•:■; :,/:s,tnrs. ^"^ --''-» "'^^r;^ severe, wl,il.. JLard. ""' "™° "' ''"'*' """ »••« neM:nt;'r"'Her" vIC" °?f " '"^ ^voss, and I„,00 CTl^Lrroo''t'- "%»~^^^^^^ S800-S8,300 ifau' '"°''' *''"°''' "»'' '-'• f'-Sbl, b.iro,fr:c 'tref -f ^ ™"' -" <•""■'■ 'ban raised at ..f:bear" "' Xf .rei:"fT'' '""'" ^«h«rf, says tl.at they found e\!,,°*f' "'""> by her master and rr,.„ 7i , ' ''"'' abandoned effects, the Shi •»:!:;;»: 'mU^T "'^■'- "^""-"^ tbe omciai log. Hopkinsor;;,;: : li':TtL:T nesota, whom f;hp dofn,,,! x ■■ I'JULei oi tne Mm- the /?;y«Z 2/ sat tt.' 'Iv'""' ""^ "^« '^^^r^-^ ,/ ...i/L/f, sajs. ihatnothijifT nmq ] rr.iir,i,4. i , from the barque by the captain or cZ^tieZTl] .? rescuing boat, except the clothin/wllh ' e ' 7 ^ *^? crew then wore T1,pv ),o^ . *^ captain and kind with them nozdfd « "' '''"*''"' i-^ruments of any said barque." ^ '°"^' '' '^'^ '"'^^^^^P from 262 VICE-ADMIRALTY COVRT. If both these statements are true, the only explanation is, that the li(n)e "-uu i this case on the lapse of time before the erro. ^' .cvered by the counsel for the defendants, but it could ^.ardly be contended that it was enough to exclude them from relief. The salvage, therefore, is reduced to $2,500, which I shall distribute, as nearly as possible, in the same proportions as before. Whole amount awarded 82,500 00 S.S. Zealand 8i,ioo oo The master 325 00 Edwin Bruce 175 00 The seven other salvors, ^85 each 595 00 The rest of the crew, according to rating 305 00 2,500 00 THE PEERESS. 265 THE PEEEESS. (Delivered May 31ST, 1S80,) Master's Wages and D,SBURSEMENTs.-The niaintiff rU- a for wages up to the term nf h.o a- ■ . P'amtiff claimed a sum special contract which he alleged hlT"' "' ' '"^"'^^ ^"^ ""^er a the service of defendant bt1?h""'^^ 7T "^°" ''^ '^"'^""« -^° The defendant paid the firs 1^ il'V^urt ha'" °'T ^"^ ^^''^"^^ to plaintiff. *""'^'' "3^'"g tirst tendered it HM. .h« ,h.„ .h.„ld be iudgmen, for defendant, with «..„ .he contract, ifl.,-, .^ uT^JS^lZT""" " "'''°" ■>' "" .0 t e tae of l,i, ,i„„i,,al, „nd a Sit .rtm of^aTS' In the affidavit leading the waiTant, Harris «,i,l fl,„ , Signed articles to serve on board tlie j,l, I , " Htasler thereof, for twelve ZI iZtf'^T' T "'l August, 1878, and was suhse,Jn.;;7™fe td Z^ fonld he. the said ntaste^ e to ^ Z^Z^t' 'ormmation of said serviees, the said vesseT°^l Z ^ on d „„, „i, „;, ,,„,^^„^ ,^ ^,_^ u„it:dii:;f„r"x articles were not prnrluce'i hvi o".^r-,--> , ° ™- '^® -nan^a«ree.en^vithtl;:lrrr^;t'rL:,:^ 19 266 VICE-ADMIRALTY COURT. Shipping Act, sec. 149, in the form sanctioned by the Board of Trade, and given in the appendix to McLachlan on Shipping, 738, the articles could have contained no such clause as Harris alleges. In the principal affidavit in this suit, he states that he vvas hired by Meredith, a clerk of Sir James Malcolm, the agent of the owners, in Eng- land, engaging, in case of liis discharge in a foreign port, to pay him his passage money to the United Kingdom, and three months' extra wages, if not put in another vessel as master, and that Duncan & Co. should employ him as master for twelve months, at .£9 sterling per month ; that lie took the Jean Anderson to Charlottetown, and thence to Picton, whence he was recalled, on the 29th September, to take charge of the Peeress, on the same terms as before, Dvmcan, as he says, expressly agreeing thereto, and promis- ing him a little extra pay, if he made a good passage home. Williams, who succeeded the plaintiff in the command of the Jean Anderson, on the 10th September, sued the assignee in this Court, and the plaintiff made an affidavit for him, which was produced at the hearing of this case, •with a letter from Duncan k Co. to Harris, inconsistent with his claim. It would require strong and corroborated testimony to establish an agreement founded on no mer- cantile law or usage, and surrendering one of the most essential rights of a ship-owner — the right of dismissal. But there is not only no such testimony — there is evidence of an opposite kind. On the defence there was proved a letter from Harris to Sir James Malcolm, of 3rd August, 1878, agreeing to take charge of the Jean Anderson, and plainly constituting the agreement, with none of the extra stipulations now insisted on. This appears to me decisive of the merits. Had it been otherwise, I must have inquired into the question as to the jurisdiction of the Court which was raised at the hear- ing. In the Citif of Petershurij, in 1865, I pointed out the difference between the Admiralty Acts of 1861 and 1863, inasmuch as the 10th section of the latter does not contain the words as to special contract in the former. The deci- THE SEAWAY. 267 special data ^"arVo . ^^ l.;™d'a'', ""'°"'"- » in the Act of 1863. disbursements there cited. ' '^' ^"'^ ^^'^ cases THE SEAWAY. (Delivered 31ST Mav, 1880.) Violation of Revenue Laws Th» u Conrod and Cook, and tradin. hTtlll C. "n ^"'"'^"^' "^^""^ •^>- under the suspicion of the Custon^tr '^^ ^'■''°" ^"^ Halifax, fell and a systematic course of sMn.'":^'-'"' "'" ''' ' ""^'='' "P°" ^er, being taken to Cook's pre;?" ' ' "'' "''""''''"^ '^e smuggled goods There was .o evidence implicating Conrod in an. of the transactions beioiidtVo'^rbrt^is^cr^^^^^ ;othe.vernment,t,.tSr;;::rr^^^^^^ » vo.iage l.itt hepteraher from L'Ardoise tn Hi. consiBtmg of 83 tul)s of butter 87 l,„in , , , ""'°^' and 5 boxes and 1 barrel of o.:. ''"":''"«'» »' l-^mng, ported or laMed. Pour IstT'J'"'' ' '""»'"•> '»- »n.e .i.ne. for which Lll^'Tri.rTr'^"^ "! wascvned 24.G«1„ by A„dr,,,v " rod anj .^ZiTT Henry Cook, rto elaimed akr, the bntte'rTnd ° ''^' one barrel and one box of ,,« tob ceo tL" e S """ Hon. antWe, her. "wh: .'r.Vwlin; hlr!!,? r^e" 268 VICE-ADMIRALTY COURT. the goods as they were landed and carried to Cook's place 01 business in Barriugton street. There were three male and four female passengers on the voyage, and seven chests of luggage were sent, as was usual, to Cook's shop. Three of these the passengers received, leaving four for which no owner or claimant has appeared, and which, on the oilfioer opening them, were found to be full of tobacco. Cook dis- claims all knowledge of them. All the outward goods at L'Ardoise were shipped by Cook and one Samson, and there is no clear account showing by or for whom the four chests were shipped. That they were illicitly imported there, and had paid no duty, is an irresistible inference. Cook shipped nine barrels closely resembling each other, and represented to Conrod as barrels of butter, which eight of them actually were, but the ninth, when opened on board, was discovered to be full of tobacco. There were several boxes of eggs, marked as such, and Cook told Con- rod that he was going to ship by him butter, eggs and fish ; but one of the boxes was marked old copper, and when it was opened at Cook's store it was found to be also full of tobacco. The tobacco in the six packages weighed 767 lbs., representing a value of $230, liable to a duty of $170, or thereabouts. Let us see what account is given of these suspicious findings; and, first, as to the four chests. They were shipped at L'Ardoise either by Jules Samson, the servant of Cook, or by Job Samson, the brother of Jules. The first remark is, that the libel, having been tiled so far back as October, neither of the Samsons has been produced on the defence, as they might have been, either viva voce or under a comi«t*!sion. The history of these four chests must be perfectly well known at L'Ardoise. They were made to resemble passengers' luggage, and to pass as such, as they actually did pass, and would have passed successfully, had it not been for some informer who put the Custom House detectives on the track. They are found with dutiable goods concealed in them, but which paid no duty, in Cook's store or kitchen, having been landed from his vessel ; and THE SEAWAY. 269 1 • .ill flatter ig Jeft in XT T ^'°""''' ^'^ *h^ ^'l^ole givenusofthVpl t^eftr^:; .f *': ^^'^^* ^^^ ^^ l>arrels were put up at T i, ? ^ f °"' ^^ ^'^«^ ^'^^^^ ^hom they were sllned ^ " "' ^'''''^'' '^''''' '' '^y especially, where there is soTf en ;f "' ''"'""" ^''^^^'^ between the guardians and fL '''' encounter of wits circumstanced wH X vs h "'""■'? '' '''' ^"^^ ' ^"'^P^^^^-^ not of themsel t e o "rt:"'^^ """^"^^ *^^^ ^^^ This appears in the tL 2^ eit/::i t^ ^°"^^--*-"- fcr unshipping foreign It ;,' '''*'''" ^°^' Penalties j-y found' a°vtS ,f irr' ^"''^^"* '' '^'y' "- -arked that reasonlwe e en ^Ss Tl ,f': '^'''' ''• «ary to support such a charg "nd Iw f ''"' "'''^■ <;"-cumstances of the transnA ''''^' suspicious mation for penalties for Wh?' .^ "^ ' * J^^'- 220, an infor- the Chief E^ron em^ i^t™^ and concealing tobacco, a defendant to p4ve I n '. '''v? ''^' '"^i^^*^"* ^■'^^• Proceed. If lie does not . , ''' convictions presumes his guilt fomti/r?' "^ "^"°^^"^''' "'^ ^'•^- concealed upon h ; Remise See. T'^ '""^ ''^"^^'' M. iV. W qq o,. • /'™^^- ^ee also Rcriimy. Dean 12 Houso books, «,y LorT f; 7™« ™"' «"= Custom Jo so, was proiLdXictea °"""' "'"' "'"'"« '«""' '» 270 VICE-ADMIRALTY COURT. factorily explained. I regret to say that, in my opinion, the excuses for tliese doubtful proceedings are more ingenious than truthful, and the two smaller packages must be forfeited, along with the four chests of tobacco a'lid the other goods shipped by Cook and laden with them, under section 91. By the 83rd section, all vessels, etc., made use of in the removal of any goods liable to forfeiture under the Act, shall be forfeited. This section is not confined to impor- tations, nor is the word imported used as in section 78. Having decided that the six packages brought in the Seaway from L'Ardoise are liable to forfeiture, I have no choice under the Act, but must decree, as I did in the case of the Gladiator, that the vessel is also forfeited, I must confess, however, that this part of the decree I pronounce with reluctance. If it be true that Cooks' 5-8ths of the ship, as stated in Conrod's responsive allegation, are under mortgage, the mortgagees are likely to suffer rather than Cook himself. And, as regards Conrod, there is no evidence whatever implicating him, though a brother-in-law, in these trans- actions of Cook; and Mr. Sedgwick, on behalf of the Crown, frankly admitted that no fraudulent intention could be imputed to him. It is a hard case, therefore, that his 8-8ths, probably his only means of subsistence, and sub- ject to no encumbrance, should be forfeited. In the case of the Emelicn Marie, in 1875, 32 L. T. E. N. S. 435, which was a proceeding in rem against the ship for breach of contract under the Admiralty Act of 1861, sec. 6, which does not, but ought to extend to the Vice-x\dmiralty Courts. Sir Robert Phillimore, in answer to the contention, that, though the captain, boing a part owner of the ship, ought to be liable, the other owners were not, and that no liability attached to the whole ship, (lt«clared that ho was of a different opinion. If this opinion be sound in a matter of contract, under the Act of 1881. a fortiori must it apply to a forfeiture under sec. 88 of our Act of 1877. There is no distinction then in fuvour of an innocent THE W. O. PCTNAJI. 271 my opinion, i ave more er packages tobacco and with them, ,se of in the (ler the Act, id to impor- section 78. ight in the i, I have na [ in the case )d. I must I pronounce -8th8 of the 1, are under rather than ce whatever bhese trans- ' the Crown, n could be :e, that his e, and sub- In the case N. S. 435, ) for breach }c. 6, which ilty Courts, ntion, that, ship, ought id that no ;hat he was sound in a irtiori must ct of 1877. II innocent owner, whether an owner in ,.'iole or in nnvf ah t tve Government a, the .Ualribulion of ll,o ,,i-oceo,l° amlT \es&ei snail yield can be reserved for him. "ten luged, as 1 1]„„];^ snceossfully. Tlie penalties for ivhiel, Cook is liable I nas, hv n ■ c«ta,„ that, if i,„„ose„, they .ouM neve'r brpaid"- " " Sedgwick, for the Crown. McCoy, Q.C, for Henry Cook. N. H. Meagheb, for Capt. Conrod. THE W. G. PUTNAM. (Delivered June 26, 1880.) Her crew reached land the sfne d^ "and" the^n""';'?' ^^■^'-'°^"«d- steamer, manned by the salvors vlnf . ^ following, a small found her about fort m lesT^V JlrVV"''' °' ^'^ '^^^^"'^'- '"-■- towed her into tha ^r! t^ -^°? ^^■''"^>'' ^"^' ^^''h little difficuUv, estimated by agr ment at" JJ"' '''"! °J ^'^'P' ^-^^ -^ ^-ight was was alleged to bc'Coo. "' " "'"' °' "' "'^'"^ ^'^^™«^ ^^W, that the salvors should receive »2,5oo. The receiver of wr^rtc it c„j the ship as against IhTsalvors''"'^' ''' '" ' '"'^''^ ^""^ "^ P— '- of Held, that »>>'>rp - Definition of sah ' ground loi the claim. age given. 272 V;CE-ADMmALTY COURT. Thi« vessel, a barque of 771 tons registered toiina^e 23id of July las . on a voyage to Marseilles, with a car.o of oak tnnber deals and deal ends, an""ortwo cases were c ted 0, f, ''"'"'* "'^ '^"' '^^• io<''■; "''\^'^^'- ^^~«' ^-/'.'"' v. N. rm, whore irw..:; B at: ;;; " 'T' '' '"' ' ''■ ^ »"«'H wreck the goods nust con- f ^ ""f"" *' '''''^^'^'' ^ «t Hoa,the law distin^u I Hi '^"^l'- ^^ "^^^ continue """"■" This derelict"C fo,e I " ':'"^"'' ^'''''"^"' <- J"i".lH of the salvors mllZTl ^ "'* "S^'tfuHj in the salvage and restitution ^ '^''^"^'^^ "^''^ *^"^ Court for on« of the elements to t f T '^ ^^'' ''^'^^'S ship is '>/"'" Ul. was omp oyPd as ;t "^ ''T'''''- ^^^ ^'"^^ - 1-ohasod at in.h^;'a::tLn2lo ^^^i;;^ ^^^?' ^^ ""t completed, and Messrs Avni -^ ,7"^' "^^'^^ sale was r'^'Hod the price, after tlesnut^^^^ ^^ ^ ^''^•' "^^ «^^'"ers. «f;;>od to pay, and ^ow a L 'ttaf 1^,"' V''''''' "^ ^"'^^ •^■1.000. for which they protL "'' '^''''^'' ''' ^'^-tb oath. "^^ P'°^'"co an appraisement under 'J'Jiore was a warm contest nf +1,. i • «t'vurftl pla-ntiffs, Dobson !l„ r*'"''^ ^^*^-<^^" "^e «aIvor,andGordo;.ct^,:rb";i '^ ^ *'^^ ^^-^^^-^ -''^-/-...desiring^rt^^s.:-^-::;: IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |50 '""^= 11^ 2.2 us l<0 11-25 il.4 2.0 m 1.6 ^ <^ /. Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 iV L1>^ iV '•b^ # 5. ^ 1° 4 V<^, Ua 6 274 VICE-ADMIRALTY COURT. Il i?: }■■ either the one or the other would be an injustice. The Bervice was a meritorious one, though it demands, I think, only a moderate award. The most suspicious circumstance in the case is the statement in Captain Gordon's affidavit of 13th September, " that the upper bow ports of the dere- lict were found to have been started, and auger holes had been bored in her." This I must assume to have been seen by him, and it is strange chat it is not referred to in his cross-examir itions, nor does it seem to have elicited further inquiry. He adds, " which is reported to have been done by some of her crew before leaving." But this he could not have known, and as a mere rumour it ought not to have been stated. As I have so frequently reviewed in my decisions the principles on which salvage is awarded in Courts of Admi- ralty, I content myself with referring to the Scotswood, ante, p. 25; the Sylphyilc, ante, p. 137; and my recent judgments in the Royal Arch, ante, p. 260, and the Roicena, ante, p. 255. I would cite also the following passage from Sir John Nichols judgment in the Clifton, 8 Hagg. Adm. 120 :— " Now salvage is not always a mere compensation for work and labour ; various circumstances upon public considerations, the interests of commerce, the benefit and security of navigation, the lives of the seamen, render it pi'oper to estimate a salvage reward upon a more enlarged and liberal scale. The ingredients of a salvage service are, first, enterprise in the salvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellow- creatures, or to rescue the pro- perty of their fellow-subjects ; secondly, the degree of danger and distress from which the property is rescued, whether it were in imminent peril, and almost certainly lost, if not at the time rescued and preserved ; thirdly, the degree of labour and skill which the salvors incur and dis- play, and the time occupied. Lastly, the value. Where all these circumstances concur, a large and liberal revard ought to be given ; but where none, or scarcely any take place, the compenfiatioii can hardly he denominated a njustice. The lands, I think, s circumstance rdon's affidavit 'ts of the dere- Liger holes had have been seen erred to in his ehcited further ave been done this he could ought not ta 7 decisions the Durts of Admi- the Scotswood, md my recent id the Roireita, ; passage from 3 Hagg. Adra, compensation 3s upon public le benefit and men, render it more enlarged Lge service are, n tempestuous :ing their own 2scue the pro- the degree of rty is rescued, most certainly i ; thirdly, the incur and dis- I'alue. Where liberal revard rcely any take enominated a THE GENOA. 375 salvage compensation; it is little more than „ '•^^nriemtionproopcreetlabore" "" ""'"'^ follow..— ^' -^^'^ ''istnbution will be as Angus McPherson 250 Alex. Gordon ijo Joseph McPhee .".".*]* ^50 L?; '^^^^«;^;^;,Chisho.m, for promovents. i^iOBY, Q.C., and EiTCHiE, Q.C., for respondents. THE GENOA. (Delivered August 25TH, ,880.) Collision at SuA.-While two vessels the P!h a . approaching the harbour of New Yor^ h ,f • , ^"'^ '^^ ^"""'' ^^"^ the morning, about twelve nit fll'l'^""''''' '' ^" early hour ,n burning brightly, and were visib e 1 ^ottr'Th r;/"' '"^'^ ''''^ damaged, but succeeded in reaching New itl J/^"^ ^'t" ^^ -nously 1 he G.„o„,vas only slightly iniured j) . '^ ''''= "'^^ °^^"«'. turned about and made for Ha, .J ' '""t'^' °' '^onunnin, her voyage, the owners of the e"i1 The ev d ncl " " "" ''""'''"''^ ««^'-' ^r Victory, but the mass of it w nt o sh ! T T^r'"'"'"-^ -"d con.ra- ^^«, that the 0.„oa si o Id < ^ : 'f '"" ''^ '^'-^'-«' i.able for the damages caused to the Elba 276 VICE-ADMIRALTY COURT. port, in this Province, lor a collision attended with serious damage. Bail was put in, the libel and responsive allega- tions filed, several witnesses examined here, and a com- mission taken out to New York in May, and an immense mass of evidence accumulated and returned here in Decem- ber. Circumstaucos unknown, or but partially known to the Court, delayed the hearing till the 12th and 13th ult., when the case came on before me and the Naval Assessor. It was fully and ably argued. I have spoken of the mass of evidence which was quite unexampled in this Court. The whole of the first day was consumed in reading it, and the second and more careful perusal, has been no easy task. To one witness, more than five hundred questions had been put, and other examinations are almost equally voluminous. Yet the enquiry resolves itself into the transactions of a few minutes which, notwithstanding the various and irreconcil- able contradictions, come out, I think, with sufficient clear- ness and show how utterly irrelevant and useless many of the inquiries incorporated with the evidence were. In Feby., 1879, the Elba sailed from Matanzas, in the Island of Cuba, with a cargo of sugar and some machinery, bound for New York. In Dec, 1878, the ^ -wa sailed from Dunkirk, in France, in ballast and as i aes out in the evidence, was also bound for New York. The two vessels saw each other on the 19th of February, off Barnagat Light on the coast of New Jersey, ten or twelve miles from the shore, and at 3 o'clock on the morning of Thursday, the 20th, collided. Both had their lights burning brightly, and were visible to each other, the weather being somewhat hazy but calm. The Elba was struck on the port side, near the after part of the port channels. Four of the shrouds of the fore rigging were carried awoy. The side of the barque was stove in nearly to the water's edge, the long boat smashed, the foresail, jib, and main-top-gallant-mast sails torn. The two vessels parted in an instant, as one of the witnesses expresses it, like a Hash of lightning, and the Elba was left, as her crew supposed, in a sinking condition. The weather was clear, but dark, and tho sea was smooth. THE GENOA. 277 which was 40 to 45 mni ", ^ '"''^^ ''''' ^^^ ^ork, of Bight ; and a serious charge Ude o^l '" 7'"* '''^ give her name, and leaving fi.V^ ^''' "'^"^"^S ^^ liowever, I am not t ; r'and i ?"' '" ^ '^^" ^'^"^ mony. that the brig put oit a boat 'T' f ""^ *''^ *^^^^- '>arque. or aid in tt reset U • ""^' "'* ^"^^ ">^ stance, however that ih. hT \'' "^ "'g^'A'^'int circum- and the fact tha't s^e^: ^^J^^:^'^^ *« Halifax; incidentally in the evidenceTlo j^ ^o / ''''''''''' ^"^^ If one of them is to be behev d too t o '''\°'' °" ^''''^''^ of the G,noa withheld the f„.f ./ "'''''^'' ^'^^^ ^'-^^^ and accounted for t' i uy «.f ";! ," f ? ^^ ^^~^"^^^' 'leelaring that she had run ifno antCg ' "^^""^'^ "^^ ^^^::^"'^Z:j:Tit ^^ *^e evidence is relative posiLn of both sZ t '^ ''^^' " ^''"^ "^^ (that is the port) lll^ Zou'^T '°"''^ ''' ^''^ ^"^'l the time we l.dS X d;^\r^^"^' ^"^^^•' ^^'^'^ h-sion, she could not poss blv hnJ " ^^'^^ "^ "^^ '^^■ the starboard) light /ITrh [ ^ oTl^^r '^' -^"^f ^^ proper positions burnincr " in 1 i ^ *' '"''"' '" "'^'^ •VcCulloch. thesecond'^te. But tL cJt '7fr' '' says that they first saw the gTnZul^^^ "/f/^'- hen the red. and when they did ee ft til , T ^ '"^^ ;ard a port, but too late. Eagles Llll T' ^^"* there can be no mistake about that " T 1 T' '''' ligh was about a point on the lee bow about tb 1 f ''" a mile away-about ten minutes ^Z T ? '^"''''*''' ^^ As soon as the green H^mL , ' '''^ ^'-'^* appeared. This discrepaC;x ^^r^::::;^^^^ Nelson says, that he saw he LlZTfl ' ^''* before the collision. He thou-^bt n i ^ ./ " '''"'"''' found it was red ; the cour 1 of /'« ""'''' ^^'''^"' ^"t oftheG.„««,S.SE Trvle.f^ ^^^'"^^ ' hour. The men on ihtl^^ T ^°'''" "'^""'^ ^^'^' ^"ot*^ au men on the look-out sung out " a light on the 278 VICE-ADMIRALTY COURT. lee bow;" not a green light, as some of the others testify. The sea was pretty smooth, not too much wind ; the barque was visible a mile off ; the collision took place ten minutes after seeing the red light. Some of the others say half a minute after ; the Genoa was on the port tack at the time of the collision. She had every sail set and struck the Elba on the port bow on the port side. The whole of the evidence on both sides has been read by the Naval Assessor since the hearing, and on the point of seamanship he has addressed me the letter which I shall now read, and in which I cannot but concur : — Halifax, 5th August, 1880. The Honorable Sir Wm. Young, Kt., Judge and Commissary of the Vice- Admiralty Court. Sir,— Having heard the arguments of the Counsel engaged in the case of the collision betv;een the barque Elba and the brig Genoa, which occurred off the port of New York, on the morning of the 20th of February, 1879, and having carefully examined the written evidence, I am led to the fol- lowing conclusions : — It is admitted on both sides that the wind at the time of the collision was about east, and that the brig Genoa while close hauled upon the port tack heading S.S.E., struck the barque Elba on the port side, doing her serious damage. The evidence goes to prove that when the look-out on board the Genoa made out the barque's side light, she bore about 2J points upon the star- board (or lee bow) at a distance of about f of a mile. There appears to be much diversity of opinion as to the colour of the lights seen by those on board the Genoa, but I think it will be sufficient in the first place to state the case as follows: — Assuming that the Genoa was close hauled on the port tack, and the Elba close hauled on the starboard tack, then by Article 12 of the "Regu- lations for Preventing Collisions at Sea," the Elba must be held blame- less : ARTICLE 12. (i) " When two sailing ships are crossing so as to involve risk of collision then if they have the wind on different sides, the ship with the wind on the port side (Genoa) shall keep out of the way of the ship with the wind on the starboard side (Elba). (1) " Except in the case in which the ship with wind on the port side is close hauled (Genoa) and the other ship goi.ng free in which case the latter (the Elba) shall keep out of the way," THE GKNOA. 279 If the evidence of those on hoani th^ r .. be adn,itted then the Elba which si , ^rt'o' ZT^ ''''' °' ^^'^°"' running free, must in accordance w,>h V , ^ '""'" "" ''' "•'"'^ ^^^ 'iable .or all the damage dot ' " '^''"'^ °' •''"■ '^ ''^ held -« N.N.E. If thisfs admiSed then e° ^'^"-"^^ " '^'"^^ h^"'^''' head- seen from the Ge„o„ mavT o„ce t H ■''"?"°" "' *° "''=>' "^hts were stances as expressed in ArtLL ,8 " ' '"' '''' ""'^^ '"^ '^'-"'"• ^^^harmless, and the liahilit. fo^r all cil^s s^ouirfiXr the^ . I have the honour to be sir, Your obedient servant, P- A. SCOTT, ' Captain R. N. Chairman of the Board of Examiners of Masters and Mates Nautical Assessor. owners of the £ffi„\,i,"i, "'" °"""' "'«' "le dence, came very ;!,'';' "'TT ""^ "'" ™™l'°"- two or .,„.ee sr; rr: •> "m!; tff ^ °'f ""■-" willing to cive— thp rlJffm.. I defendants were ei«..te:n .^ur*er.:r "i:i, r of r„„t ?:rr mission of liability. K iX„ o„ l "^T °' " "^ "''■ on the position a/, Zi^:i'z ™:cm"^' Act 0, las. sessi„„"!t'ic, HoLtto T' """'t" '' '"' p ■ '. 280 VICE-ADMIRALTY COURT. THE QUEEN V. FLINT. (Delivered August 25, 1880.) Breach of Revenue Laws— Suit for Penalties— Jurisdiction of Court. — The defendant and three others, being discovered in the illegal distilling of spirits, the materials and apparatus used by them were seized. No claim having been put in for them, they were condemned, and pro- ceedings then taken to recover the penalties imposed by the Act. The defendant appeared under protest, denying the jurisdiction of the Court. Held, that the Court had full jurisdiction in the matter. In May, 1879, as appears by the affidavit on which the monition was issued on the 21st May last, the machinery and apparatus for the illegal distilling of spirits were seized on the premises in Halifax, owned and occupied by Flint, and on his information against McDonald, Hornsby, and Flavin, as concerned therein, a large quantity of spirits, mash, and apparatus for distilling, were seized on the premises occupied by the two latter. No claim having been made by either party, pursuant to the Dominion In- land Revenue Act of 18G7, 31 Vic, ch. 8, all the goods so seized were condemned imder the 163rd section, and the present action was brought against the four defendants for the penalties imposed by the Act. Three of them have not appeared — Hornsby and Flavin not having been served — but Flint appeared on the 2nd inst., under protest, deny- ing the jurisdiction of this Court ; on which the Crown, by the Attorney-General, has taken issue, and the case has been argued before me at the instance of both parties, though the question, strictly speaking, should have been raised by plea. The arguments wandered into a wide field, but I shall confine myself to the point immediately before me. In the first case I was called upon to decide, as cx- qificio Judge of the Vice-Admiralty, that of the CiUf of Petcrshurc/, 1 Oldright 814 in 1865, sec ante, p. 1, 1 had occa- sion to look into the question of jurisdiction, which has been THE QUEEN V. FLINT. 281 fax, and I ti,f , ™'„Tor '7T ""f— » "' «"";! t .e Acts of Parliament. T , , ,n 1 ' T'"'^'"° "'""'' tliiB Court are fo„,„le,l „„; |v 1», l"""'«lin8s in «"e 2 Will. IV, Cars, 1,°,V;"''''™''^'='»' "832, i«»e.I thereunto '; iL u ? '"'''' "'"' •■''8»l''liona these, »ec. 27, re ato, tj'>^ '" '^°"°<'''- Amons Revenue or N^vi^:::: L^^a^^ li^ 'r ^T „^='' "' " ' laws as were in force in ihJ '"""f ^'^"s- of course, such the Empire and are no, t Z^'l ''''''''' ^^^^^"^^-"t eontainsthefollowin.clluo- T ^"'"'''' '^'"^ «^^"°» citing all persons in gener^Hml n "/ " '"T- '' ^ "^"^'^^^ by name, no penaltL !nn t 'l^«c"bing any person person by wE T P^*'^"^""'^^^ ^^ ; but if the wards be'dil o "re fat " """l**^^^ ^^^"^^^ -"er- i" the same suit a aiLt 5^^ ' 7 "'' '' '''''' penalties." The principle r^qu ed ^ t ^ T""'^ '' '^'^ as m the note to our fee-table fni«. '^"''' ^"^ ^'^" "pon the case in hand n nil I , ' ^'^' ^ ^''^^^^ '^^'^""g Queen in Co.m" 1 b;;^ l/;,'"^'' ""^"^^^^^^ ^^-" th^ the same auth rily ^if' "we^r^^^^ \1 '[ ^"•"^'^-t' J^- was said at the ^ZLVfZeV'lr':':;:^- ''^^ jurisdiction anal^^to tLf fT*' f" ""^ ^^^^ ^ United States, and e ceedini tJ/T'^'''''' ^" *^^ AdmiraltyinEngland I won?/. *^' ^^^^^ C«"^'t of ing that Lch an Act^i'^f.'^ ^'''' ^ '^^<'"^*^ '^ ^^«^d. that no such I 1 1 1 e" ' iTsr^.v 1 ^* ^"^ ^^^^ -^'^-^ with here, is the recovlrofZaltil, "' ''' '^^^""^ after forfeiture of the Jnn i ^'^^^ ^^ ^ '"P'^^'^te suit I^evenueLawofl^tS/^T^^^^^^^^ '' !'' ^"^^^^ Act prides that all penaU" s lid S^S'llic^^:^? eActmaybeprosec^^^^^^ ;oumCourtsoflHw,orintheCourtofVice.Admi.l; 20 the 282 VICE-ADMIRALTY COURT. having juriBdiction in the Province where the cause of pro- secution arises. For the reasons 1 have as8if:;ned, I am of opinion that this Court has jurisdiction — that the 15Gth section of the Act is not ultra vires — and that the objection now taken cannot prevail. One of the grounds of protest is, that the monition was not personally served on the parties therein named, hut it appears by the Marshal's return, that the monition, under Seal, was shewn to Flint and McDonald, and true copies thereof left with them. Attorney-General, for the Crown. McCoy, Q.C, for defendants. THE EMMA. (Delivered 29th December, 1880.) Action for Necessaries. — The Emma, a small vessel, owned in New- Brunswick, being much out of repair, when in Nova Scotia, and her captain having neither money nor credit, the plaintiff agreed to furnish supplies, which were accepted by the workmen in payment of their wages, and the required repairs were thus effected. Subsequently, not having been paid, he arrested the vessel for necessaries supplied, no owner being domiciled within the Province. Held, that he was entitled to recover the amount of his claim. This vessel was arrested as far back as February 10th last, under sub-section 10, sec. 10, of the 24 Vict., Cap. 24, for "necessaries supplied within this Province to said vessel, no owner or part owner being domiciled therein." THE EMMA. 283 ssel for necessaries heav, oxpon.se. a„.I U! '^J"";^!, 1"^^ ^^'-^^ at a dolay tlmt ]ms taken place The Z • ""'^^'^^""tahle on the 18tl, May. nlZd tlw ! . i"^'' "'''' »^"-^^'«te,l were examined and T^^^^^T;''^' "';' ^''« -*-«-« June. On the 20th rivT \T ^^'' ^^^«'«*^ar in <%stoputin I.i'toot'^nt:t:^/'^^'"f"* -^>' notice I appointed a day for t J 1,7 ^^«y^"^l^«r. after vertised in the Ga.eUrZdZ ""^' ''^'''^' ''^' ^d- Counsel produced f the first t me r"" "" '^'''"'''^"^'^ for the delay and diselaimTl anv^?'''''"f. '''' ''^'''' nffi^lavits made on the ITtr^Vand ^'s f'", '" ''' subjected to any cro8s-evnm;n„;- , ^^P*^«il^or, not "ot receive as proof c'STr'th"' ^'f' ' ^^^"'^ Court. according to the practice of this Dorchester. Ne^tulSt/thl^^^^^^^ ^'f^ ^* various transactions culminatin!; 1 ^' ^' ^'^^^ ^"^^• New Brunswick in 1873 PJa fh /? T'''''''' ^*'" ^" the owner this action must hi ^if"'^''!"* ^^^^« ^^^^ was directed to a biH oTsaLtnnev ? ' ?"^' "^^ ^**^"*-» porting to be made tolZj^Tml {!' ^'^t''*' ^'"^- whose name is not on t]JnIr^!' ^^ -^^as.E. Walsh, interest in the ves^ 1 lelld '^1 '' '^''1''' "«^ '- not comport with that H 4 ificar'?"''"' ^'^^^ vessel being much out of repair^orotTo:;, ? ''''' '''' new top was required to mnlT ) "''''* ^ '^^^P^^^t^ Imving neither unds no. credtr ''"'''^^'^^^ ^"^ ''^'^^ with some reluctance X.t 1 ,7'' '^''^"^ ''^ ^anford, provisions out o 1 i ^to e ^^."''"''^-•PP^^' «- outfits and forherequipment S; slXs' "°* '-^^^''-^"^ -o-3' workmen in payment of tei'w ::!! ^Tl '' *^^ -n.which|..e.i teTS^^^-t^;^^-^ iy/«, and not within iht> „ i^^vious to uiiiiin the agreement. The Fcbri 984 VICE-ADMIUALTY COURT. balance, being $200.29, I award to the plaintiff with his taxable costs. The authorities bearing upon this case are to be fountl in 1 W. Rob, 861, 368; Lush. 829, L. 11. 8 Admy. 516 in 1872 ; 1 L. R. Prob. & Div. 253 in 1876 ; i Barn, and Aid 882. RiGBY, Q.C., for plaintiff. W. R. FosTEH, for defendant. lintiff with his iro to 1)0 found . 3 Adniy. 516 liain.and Aid. INDEX. INDEX. i)ee C/m>-/« Forbes, p. 172. Accident, Inevitable. S^ Inevitable Accident. Accounts of Master. Appraisement of Derelict set aside. An appraisement of a derelirt «I,;„ -t. That the appraisers arbTr^^r'^°°°'''«S^-"ds: salvors; 2nd. That the writ L„o^ k°'T ^^ "''^ P'-°<=t°^ for the '"'' '"3'. on these eroundc! «k„ tained. ^™""^'' ''^^ appraisement could not be sus- ■ Of ship and cargo. ^'"^ '^'^"'I'ndge, p, 63. ■ When conclusive. ^^'^ Regina, p. 107. — When too high. ^'"^ S- B. Hume. p. 228. made a decree upuu the proceeds thereof. "°""' ^"^ y'/ff Cambridge, p. 64. 288 INDEX. B Bottomry Bond, Action on. A vessel belonging to Quebec, having sailed from Halifax, bound for Cow Bay, in Cape Breton, encountered heavy gales and was com- pelled to put back, after having been at sea for three days A survey having been held, she was pronounced to be totally unfit to proceed on her voyage unless refitted and repaired. The owner was then at Halifax, and being unable to procure funds, applied to one O. R. F. for a loan on bottomry, and G. R. F. advanced the sum required. The vessel was already mortgaged to G. B. H., in Quebec but of this fact G. k. F. had no notice. G. R. F. took proceedings to recover the amount due on the bond, and was opposed by G B H who set up the priority of his mortgage and denied the validity of the bond. Held, that all the ports of the Dominion must be accounted home ports in relation to each other, and therefore that the bond could not be enforced in Admiralty. Strictures passed on the want of jurisdiction in the Vice-Admiralty Court, and the consequent failures of justice in the colonies. The Three Sisters, p. 149. Collision. While two vessels, the Wavelet and the Dundee, were attempting to pass one another, in Halifax Harbour, they came into collision under circumstances for which the former alone was accountable, and she was therefore held liable in damages. The fact that the IVavelet at the time of the collision was in charge ot_a pilot, held, no ground for exemption from liability, pilotage not being compulsory under the Provincial Statute. The collision occurred inside Halifa.K Harbour, and, therefore within the body of the County of Halifax. The dofendani put in an absolute appearance without protest or declinatory plea but the question as to the jurisdiction of the Court was raised by him at the hearing. Held, that under the Statutes, 24 Vic. cap. 10. and 26 Vic. cap -4 the Court had full jurisdiction in the matter. " The Wavelet, p. 34. IKDEX. 289 ree Sisters, p. 149. Collision— Co«//«i«?rf. ^•cvis anchored beside he" 1^^^,°"' "1? '. °" "'^ ""^ '^e Ben On the n^orning of .he J.h boTh "f ^''' '" '°° '^'°^^P-''™''v. moored, and the captl of the fori, ""■' ^PP^^^""^ -<="-''>• on board. In the course of fh """' °" '^°''- '"^^^'"^ «'" "en A^-- The .en on "oafdT SLT;:!; ^d Tol''^' ^■'' '''^ ^- seamen should have done under Thl ' ^'" ''^ "Perienced made no attempt to get oT board v5.iI '"""' v""' ^"' ''^ "^^P'^" manship was p'oved'a^aiLt the bI l^l:" "^«"^^°^^ ^ ^^ °^ -a- damagtst" i^stf^"' ^'°""' '^ ^"'^^^ ^^ "^^ B. ^... ,or the Strictures made on evidence received in the Admiralty Courts. The We're Here, p. 138 as to the state of the weather thlnl^.i^^."''''"""''*'"^"'''^^"'^'^ the defendants, that there was fl./nd' '"^'"« "^^' " "^ '^'^"^ been maintained on boartheSl^^^^^^ A efficient look-out had fore the collision, when the man o„ L f ." '" " ^'" ""'""'^^ ^e- assist in working the vessel Tnd h r "'\'°°^°"' ^^^ 'tailed down to the schooner was struck ' ""' ^^"^ "^^'"^"^^ '° his post hav1tentVii:aS:LS:Jrt^^^ r'^"^"' '°°^-°- ^^^'^ damages and costs of suit ' '''^ ""^^ '^^^^^^o^^ "able in TA^ Clementine, p. 186. fax^came ttf colli^o:';,,:; th 'T'''"^ '°"" ''^'^ ''-''°- °f Hali- -s lying at a wh r „ s h I noSrT \"'''' '^'^^- '^'^^ -'^°-- projected some twenty five fret'bevrd I" \ ""T"''' ^"^ J'^''°°'" violating the Harbour R^guTa ion Thr"n °' ''"^ ^^'"^' "^^^^-^ not have occurred but for ano^h^"!' ,, '°"'"°" ^""''^ Probably side the E,itn Pl^/.. a^ririutT'"^'"' '"''"" '^'"^- '• broken ground, and thus narrowed th.,^?? '° """ '^""'^'°" ^ad had to pass. "°^^'^ '^^ '=''^""«' down which thesteamer ffeld, nevertheless that as thn p^;.»i n/- . the Harbour Regulation sh 1^! „t^L ,"^7°;' "" "^^ ^°"'"^- '° .V. ^. S,„,,, „.i,h costs of suit. '' ^''' *" '^^'"^K^ '° 'he The rule as to inevitable accidents stated. The Edith Wier, p. 237. 290 INDEX. Collision— Co«//«tt<'rf. the'I.vil'h''" Tr""""" """^ ''"' '"■'f""« ^°^" "^"f'"' Harbour with he tuie bounc for a port along the coast, all her sails being set and the regulafon hghts July burning, she was run into by the team" Alhambra, which had just entered the harbour. The night was fine and dear, and the harbour perfectly calm. The steamer was com n, on at a good rate of speed, and had altered her course a few mirZe, before the collision to avoid a schooner that was becalmed narb the u'^Tit wa^tootr °" '''-' ''' ''-'-'' '-'' -' P^-^- '^^ '^- comd'in;*''"' f *''""'''■ '' ""' ""'^ °^ '^°'' ''^'^ '■" -hich the two coIh,hng vessels occupied such relative positions that the lights of the schooner could not be seen by the steamer, yet the speed of e steamer be.ng too great, and her look-out defective, Tn'hat e sch^ooner herself was not noticed in time, the steamer was liable m The Alhambra, p. 249. \yhile two vessels, the Elba and the Genoa, were approaching the ab^ rtwe ve'" -l'"'; ""^ f'''^'' ""' ^" ^"'^ ^°^^ i" the mornit abou twelve miles from the shore. Both had their lights burning bn,ht.y^ and were visible to each other. The Elba was serious"? damaged, but succeeded in reaching New York, where she was o Ted The Geuoa was only slightly injured, and, instead of continuin/he; voyage turned about and made for Halifax, where she was proce'eded against by the owners of the Elba. The evidence was very vohZou uLZ:T''°''' '"' "^ ""'-' °^ '' ^^^"' *° ^'^^ '^^^ '"^e ^'*-as ^Held, that the Genoa should be liable for the damages caused ,0 the 75- - ,. . ^^' Genoa, p Convention of 1818. How its articles are to be construed. «„,. , _, . ^''« y- fl- Nickerson. p. 100. Costs refused to plaintiffs. Where the plaintiffs, seamen, recovered for wages due them the amount m each case being below »4o. Held, that, as their claims might have been sued for before a stipen- diary magistrate or two justices, they should not have their costt The Ann, p. 104. Costs, Security for. Where the pl.-intiff, in an action on a bottomry bond, was resident out^of^ the jurisdiction of the Court, although presumably a Bruf:;. Hehl. th.-a, on application being made therefor, he should be required merits and of the defence being bona fide. The Abby Alice, p. 112. INDEX. Halifax Harbour with r sails being set, and into by the steamu. The night was tine steamer was coming course a few minutes )ecalmecl near by the >t perceive the Hero is in which the two that the lights of the It the speed of the fective, in that the earner was liable in 291 he Alhambra, p. 2, 49. ire approaching the our in the morning, their lights burning Elba was seriously lere she was owned. I of continuing her she was proceeded /as very voluminous V that the Elba was lages caused to the The Genoa, p. ^75. . Nickerson, p. 100, ?es due them, the for before a stipen- ve their costs. The Ann, p. 104. jond, was resident mmably a British should be required ig an affidavit of ibby Alice, p. 112. Damages to wharf by steamer. wh^n^'sToro'/'r^ui^viirc'" ^''^^^'" ^''^ "^^^-^ °^ "^"f-. ness, there having LeTnooth "in r"V"" ^"'"-"'"-y -^den: falling barometer Some addS on.l " °' ''' "PP^°^^'' "'^" - moor her that she mighrrideoutT T"'""""' ""''^ '="''=" ^ "^ prove adequate, and't:! „" ; t^JJ^^e'^^ several wharves, amone them thT^^' Tl '"*° '=°"'«'°" ^''h thereto. It appeared 'elencethrXf' T"'"' ""-'""^ ^'^^^^^ might have been used to secure the 'tl ' '"'''" "^'''"* '"^"'""^ employed, the probabilities rere'tr'"' T'' '""' '^'^ ""^^ '^^- fast to her wharf. '""^'^ '" ^^^""^ °f her remaining Held, that she was liable for the damage done. Decree, Re-opening of. The Chase,^. ,,y ^^^ Re-opening of Decree. Defects pointed out in the Vice-Admirally Court Act. Derelict. '^'^ ^'^y 0/ Petersburg, p. 12. ^^^^iz^^:::^:^2:^ r^— -">- became charts being washed away ^n j' "fji-P^^r"""^' ^^P^-^ and yy. Brown, a fishing schooner Jh I "^^ ^"^ ^"""^^ ''>■ 'he J. came along side an! S "of 'h^tpurn'r" '° 1T'' °^ '''''^' nme of her own men on boaritthJir ola e "rh '^ ^''''' P""'"« of the ship never attemoted fn 1 . ° ''^P'^'" ^"^' crew board the Schooner unJiT^p^t ^a^Ta^hed" Tt"'. "" ^^'"'^'"'=^ ^" continuing, the schooner was unabir^n ''eavy weather still following day, on another scLontte L'"'" ""-^''P' ^"'' ^'''^ hailed one another and aftpr .. ?. "' """"""S "«", they schooner should send seven ' '°"'f""°"' '' ^^^^ decided t^iat eacn Should take her ilr\rrrrear'''''^^'^'P-"'^'''^''^'- both crews, the ship was c.= the next lav h '^T °" °" ""^ P*^' °^ ^oth ^vas not conclusive as to the in ent /,' '"'° P°"- ^''^ ^^'^euce to finally abandon her, but the sa a " " """^^ °' '^« ^""'--'^ '~-^. this was not co^^T -m:- tS:^^^^'^ be";i.td' r site";rb??^?r'"--^---- ^^^^^ ?"/!<: Scotswood, p. 25. 292 INDEX. . ■] DereKct—Continued. lV.S,.,U^o. Off .he coas. o Newf^ rnrrr''''""'^'''''^ seamen of .he la.ter vessel took chaZo .h: . r "" ""'^ ^""^ I'er into ,he port of Svdnev T. ''*"■*''"' ='"'^ ^^""ght salvors having^unconSrablerilk 3 ' ^^'"-"-'-•^ -se, L value of .he Jere.ic. w^fap^ T^ZT ''''' ''''''''• ^''^ •W<:/(/, tha. the sum of 88 ooo shni,l,i h^ j ■ which .he mate received » 'oorith"' ou Xt v^rVs^^^^' T^ «3.20o being allowed to the owners of .he ship *^°° '^'''' T/k; Canterbury, p. 5-. on^LHo'^:' r:drivr" ''^ ^"'^ °' ^^^ ^™«. --c^ condition she w ound ^ .he X?"^' ""'"-^^-^'^ ^n this 'listress, took the crew off Vn,. . IT' . ' ""^^P^nding .0 signals of then returned o the Z! '/'^ "'''" '" ^>"'"«y' Cape Breton her into tJe same porf Th? ' f " '=°?"^«-''>e exertion, brough; were »7.io5. ^ ^^' ""' P^'^^^''^ °f ^^ip. stores and cargo seatfn :;i:;: htt/ootcT^^ ^'°""^ ^^"'^ »^-' -'^ '^^ - shfp 13'::;r" " '° ^^^^ •^^''^'^ °^ --"'-« appraisement of The Regina, p. 107 The sale of ship and cargo realized 9954 60 The S. V. Coonan, p. log te^",!';" "• "•""■'"" "■°""' »»•« '«o. and ,h, ngh,hou... TAe Afton, p. 136. y/ic Tickler, p. i66. INDEX. 298 e Canterbury, p. 5-. 8500, and the ten the lighthouse- Derelict-CoH//«„<.rf. Appraised value of shi,^ -,„ 1 salvage. ^'"'^ ^^^ -^«o, 8,o.,c,36. 930,000 awarded as T,, ^''"' ■'''■ ^"l>'nso„, p. JOS. from Ha if.,, .„d ,„„, „„, ,^ '« *';'" V""'":^'. abou, 3,,, „'„,„, T,. . ^''^ '^''" 'S^^/c;,, p, 2^0. ■The steamer Z<.rt/<,„rf, bound from Anf w.th the ;eo,„/ ^..,, abandoned aTd TZIZ X ^'"^^'^'P'^-. ^el, in d.fficul,y. towed her into Halifax The TT ^°'"''' ^^'"^ ""^ ''»'« 00. for vessel and cargo, and the C Z!::: ;:^:r'"' ^' '^^^- ^'«. that «2,8oo should be awarded. ' The Royal Arch, p. 260. abLt,nTdoff;h::r;fCa";'B;rn b^-'^'^^ *° ^--"'-. was Her crew reached land the same daT a d 1:?^^:!^ ^^"=^'°^^^^- steamer, manned by the salvors, wen! out in ' k°"""'"«' ^ «">^" They ound her about forty miles from North sT' °' ''''^ ''^^^''^t- difficulty, towed her into that port The ' f 7' ""'' "'''' ''"'« fre,ghtwas estimated by agreemen " at st ' °""'P' '^"S° ^"d salvng steamer was alleged to bT^'ooo ' '"' ''"^ ^^'"'^ "^ '"e '/^W, that the salvors should receive »a,5oo. The receiver of wreck? a* q,,^ of the ship as against the saU-ors.^' '"' '" ' "'''"" ^°^ '"^ P-ession //^W. that there was no ground for the claim. Definition of salvage given. T'le W. G. Putnam, p. 27^. The Architect, p. uq. 294 INDEX. 'ii' Derelict, Directions as lo proceedings. The John, p. 129. - — No claimant. Two Bales of Cotton, p. 13, Order of proceedings against a— If a private warrant be extractea in the infpr!,,, k . notice to tlie Admiralty Proctor and hi, tnb ''^" S'''"« disallowed on taxation '"''"^ proce.J.ngs, it will be The Sarah, p. 102. Desertion of vessel, when it does not constitute her derelict. See The Margaret, p. 171. Deviation to save property. See The Herman Ludzvin, at p. 214. • to save life and property. The Scotsu'ood, at p. 32. Dismissal of master. The ship yean Anderson, owned at Charlottetown P F t by the agent of the owners at F iverDool FnT ; ^^^'''^^^^^^^ who agreed to go out to CharloUeto „ kit Inl ^ '^'^'"T^' master, and bring her to England fnr , 7 ^ "'^ ''^''^' ''^ He accordingly c'a.e ^ut all vtg'b eT^^tird '' "" °'^^^^^^' in her to Pictou N S wh.r„ '"^^ Deen put m charge, proceeded attached by e offich"; Lnel th ''' P^'"'^'"' '^^S. ^he was vency. The chimant em f , f °7°" ^^''"» S°"« '"to insol- y 1 i.e Claimant remained on board, not being reco^ni-r^H K,. ,- Assignee, yet uot being dismissed until the 22nd Anrl foir ^ m u. .aster, and .:::;sr:f ^^ ^i^:;! ^-^ '° ^^^ ^-''°- °^ The John, p. 129. und derelict, and their DIsmfssalofmasfer-Co,,//,,,,,,,. JtNDEX. 295 ^°^"^:t"r:::;zj-;«^:^;v:^' — - - - s„ip •-'-'Kneo, was entitled to his 1 ^ ,n h r'.'"'' ''^" ^'«'"'''^ed bv ': costs of suit. ^"'^^^ '° 'he fm, ,xtent of his claim, u',h o ,, '^'"■' y '■nil Anderson n 2j^ •5'''««'-, that immorality or int^n, ^-und for dismissal of th:°as,en'"'"" """'^ '^^ "°' -«-nt Oisfribution of salvage. ^'"' ^'"^ ^^"''S'- P- 2^2. i i'- T''<' Canterbury, ^t^,(,^_ rim between giving f^'shery Acts Of Dominion. Violation of- appoinfe^ni'D::*^ ^'^'^T^ ^'^ ^'-^ ^V one of th cutter th. P™''^'^"'"'" vvas to the effect tht . "'"^"'^"^^ °" "'« cutter there were fish freshly ciu^hr '' '^''°" ''""ded bv the every indication of the crew 1 ^u "P°" '^^ schooner s deck J 'nanagement of thJ v "'""'^ ^^^n very recent! v ' """^ sc'iieut ot ttieir ines TU^ , . -^ 'ecently engaced Jn ii, ZT :' '-' '-' ^- 4ht":t::;ti°"^^^'' '^'^^^^^^ H^l'l, that the vessel should b. t r ^ P°''' "^ ^°°d. and cargo. "^^'^ "^^ ^orfeUed. with all her tackle, stores ^ TA^ H^ampatuck. p. 75 that the vessel was lying to in ,u Prosecution it was nm < ^'■W, that there was sufBcient ''''"' °Porations. ' the vessel, etc. ^"'^'^'-' ^'^ence to warrant a forfeiture of iiiiiiiiii 290 INDEX. Fishery Acts ol Dominion, Violation ot~Continued. had continued trying for mackerel until the cutter came up. This evidence was further strenKthened by admissions of the men, gom. to show that they had actuidly tal had no jurisdiction over :iuch coii- 21 u 208 INDKX. Jurisdiction of Court -CvulhhMfd. 3- That this Act did ,.•,< extcn.I u, the \-ioe.AdmiraUy Courts „or sverc the provisions respectiPK special contracts ..nihracecl in its tenth section txten.led to those Courts bj the Act of .H6j. 26 Vic can .. sec. 10. ■ "t ■ -■»• 4. That, althouKh the commission formerly issue.! to the Vice Admiralty Judge empowered him ■toh.arand determine all causes accordmg .0 the , nil and maritin.e laws lud customs of our High Court of Admiralty of England.' ye, this power, like some oth r assumed to be bestowed by the commission, is frequently inoperative And that, therefore, this Court has no jurisdiction in cases like th. Held also that, although the respondents were bound ,0 have objected to the juns.l.ction /„ //,„/„., by appearing under protest, still that, where the Court is of opinion that it has no jurisdiction, it w 1 not only cnterta.n the objection at the hearing, but is bound itself to r3IS6 It> The City of Petersburg, p. i. Jlt7>.yf'"'T."T""^ '"''^' ""''^^'' "^^^°"^- '^"d therefore. \wthin the botly of the County of Halifax, fh^r''' l^'S^lf": "'.' ^'■"""''' '•* ^'''^•- '^"P- '° ^"d ^^ Vict. cap. 24 the Court had full jurisdiction in the matter. The Wavelet, p. j^ .ni?h''' "',V'T" '^^'^^.^^^^ '^'•°"8ht into a port in Newfoundland and then sold ; but a portion of her materials was brought to Halifax and then proceeded against by two of the salvors who had not been paid in Newfoundland. Hcl.l. that the Court had full jurisdiction, salvage constituting a hen upon the goods saved. "'uun^ a The Flora, p. 48 The question of jurisdiction was raised in a case of collision on the ground that neither of the vessels was owned in the British possessions Held, that the Court had jurisdiction. The Cln<-c.!''\ >. , S5. Quaere as to the jurisdiction to inquire into a spe. ,.; c ....tract with Engl'and'! ''^^" "^ "" '"^'''' '''^^''' "'^ '°"''^" ^""^ ^"^" '"^^e in The Peeress, p. 265. Power of the Court to entertain suits brought to recover penalties for breach of revenue laws. ^ St-:" 'r'u- Queen v. Flint, p. 280. 2vhmim Of Vice-P:'-.,irally Courts in relation to bottomry bonds. See The Th,.: Sisters, at p. 152. l/lii^ miralty Courts, nor nbracfil in its tenth "ifij, 26 Vic. cap. 24, isue.1 to tho \'ice- eterminc all causes stoms of our High , like some others uently inoperative n in cases like the re bound to have under protest, still, jurisdiction, it will is bound itself to / Petersburg, p. i. 3ur. and therefore, id 26 Vict, cap, 24, he Wavelet, p. 34, in Newfoundland, rought to Halifax, •ho had not been ge constituting a The Flora, p. 4S f collision on the ■itish possessions. 'Irvc, , >. .?5, iai cci.iract with ad been made in e Peeress, p. 265. recover penalties [ids. iNI>i;x. ••'ability of Master. S"' The Alexander Williams, p. 2,7. t 'en of master for wages. The fact that the master ha.l accepted a nr • co-owners in the vessel for wa^es d„l . P'°'^">^'^y note from two did not take away hi, lien, ahh'ugh the": f.T ^^" "°' P^'"' bom fide purchaser, ^ ""* '"*"' had been sold to a • 1 ^'" Aura, p. c. ••'ens upon the ship. ^ WH„ ,H., .„, „, ,„„ ,,.,. ^,^, ^^^^^^^^^ ^^^ ^^^^ ^^^^ Life salvage. ^*' <4««a, at p. 50, See Salvage of Life. •.oo«-out, Deficiency of— See r//f Alhambra, p. 240 and T/„ /^» V- *^9< ana r/«- Clementine, p. 186. •Wan-tjf-War, salvage by. See The Herman, p. m. Marine rules in Dominion Acts. See r/jf GfMort, p. 273. Master's wages. Promovent claimed a balanrp A,,^ r -hich the defendants pleaded a se, off ^^ '"' ^^bursements, ,0 movent with agents of the vessel vvhth , """"'^ "^^^'"'^^ ^y pro- the absconding of one of the atn's fnd^'S "'. "? "^ "^"^^ '"-"«'• charge against h,m of corrupt mliJeo '""■'■ '^''^^^ ^^^^ "° owners sought to make him respTsibTe for ,777 '''""^' ^"' '"e agents Of hi. emp^^r lit ryTu^l^'i;" T ^'"^ '''^ ^-- m common prudence was bound to dJaSt!; V^'"' ''^^ "'-'- for h.m, with costs. The cases ..; r , ' J"dsment shonl,t be liability of masters reviewed forfeiture of wages aL ! '^'"Alexander Williams, i>.2iy_ 800 INDEX. Master's viaqes—ConiinKcd. The master of this vessel brought action for an alleged balance due him for wages and disbursements. It appeared from the evidence though It was not alleged m the pleadings, that he had an interest in' the vessel as part owner. While in command, he had been guilty of gross immorality and intemperance, evidence of which was produced at the hearing on the part of the defendants ; but the immediate cause of his dismissal was dissatisfaction as to his dealing with the vessel's earnings. The matter finally resolved itself into a mere question of account, and upon an adjustment of the accounts it was Held, that judgment should be for the defendants. Semble. that the plaintiff s dismissal cou:d not have been justified on the ground merely of immorality or intemperance. The Bella Mtidge, p. 222. The plaintiff claimed a sum for wages up to the term of his dismissal and a further sum under a special contract which he alleged had been' made upon his entering into the service of defendant, but of which he failed to produce any evidence. The defendant paid the first sum into Court, having first tendered it to plaintiff. Held, that there should be judgment for defendant, with costs. Quierc, as to the jurisdiction of the Court to inquire into the special contract if the plaintiff had brought forward any evidence in support , of It, the contract, if any, having been made in England. .. , . ^/'« Peeress, p. 265. Master also part owner. The fact of a master being also a part-owner does not affect his right to recover against the vessel for wages due him. The Aura, p. 54. Misconduct of Salvors. See The Charles Forbes, p. 172, Mooring Inadequate. See The We're Here, p. 138. Moorings insufficient, Liability for consequences of. See Damage to Wharves. Mortgagee of vessel. His rights against a holder of a bottomry bond. The Three Sisters, p. 149. Mortgages of vessel, Registration of. See The W. E. Wicr, p; . 145, 1^7. INDEX. 1 alleged balance due d from the evidence, he had an interest in , he had been guilty f which was produced t the immediate cause ling with the vessel's o a mere question of 5 it was nts. have been justified nee. Bella Mudge, p. 222. erm of his dismissal, he alleged had been ant, but of which he ; paid the first sum 801 Necessaries, Action for. ou- S:- : :r ir ^--;^ New B«c. being..,, money nor credit, the plaintiff a °ree:i", f^'"*" '^^^''"S "'^''ther accepted by the workman in pa 4 ^ 0?,""' "''"''-'^' ^^'''^'^ -- repairs were thus effected. ^ "' "'^^es, and the required Subsequently, not having been nairl h necessaries supplied, no owner beL^domS f'f^ '"' ''''''' ^^^ Negligence and want of Seamanship. ^'" '^""«"' P- 2S2. The We're Here. p. 138. ant, with costs. aire into the special evidence in support gland. The Peeress, p. 265. does not affect his im. The Aura, p. 54. hrce Sisters, p. i 49. Objections to report of referee. See Referee, Report of. Order of proceedings against a derelict. See The Sarah, p. 102. Part Owner also master. ^'■B 'faster also part owner. Passengers, Salvage by. See Sahaf^r, ^ passciga-s. Payment of award to salvors. Directions given by the Court. Penalties for violation of Revenue Laws. '^'"' ''"'"''"'''^' ''' ''■ See The Minnie, p. G5. infliction of. ^"^^'"''"'"""/R'-veuueLaws. Suit for. Upon breach of the Revenue laws, See The Queen v. Flint, p. 2S0. 302 INDEX. ■; ' il i Pilotage. • The fact that the vessel to blame, in a case of collision occurriiit; wthin the harbour of Halifax, was at the time in charge of a pilot' held, no ground of exemption from liability, pilotage not being com- pulsory under statutes of Nova Scotia. The Wavelet, p. 34. Pleadings. Stated to be of little use in Courts of Admiralty. See The We're Here, p. 139. Ports of the Dominion, Home Ports. All the ports of the Dominion are home ports in relation to each other, so that a bottomry bond given on a Dominion vessel in a Do- mmion port cannot be enforced in the Vice-Admiralty Court. The Three Sisters, p. 14Q; Possession, Suit for. J. H., when building a small vessel, was furnished with supplies therefor by DeL., who put into the vessel, upon the whole a larger sum than J. H. did. Afterwards it was agreed that DeL. should own half the vessel, and, in addition to this, he took a mortgage from J H previous to the completion and registry of the vessel. It was filed at the Custom House, but could not be registered as there was no registry of the vessel. On her completion the vessel was registered in the name of J. H., and no mention made of DeL. as part-owner DeL subsequently sold her to one C, who registered as owner under his bill of sale, and then J. H. instituted proceedings against them both to legam possession. Held, that the Court could not cancel the registries, nor order a sale, as the parties had applied to the wrong Court ; but J H and DeL. were strongly advised that they should have an account taken to ascertain the amounts re,spectively due them, and should sell the vessel to the best advantage. The W. E. Weir, p. 145. Receiver of Wrecl(s. His right to intervene in a case of derelict. See The W. G. Putnam, p. 271. Re'eree, Report of, objections to, how to be taken. Where, in a question of accounts and disbursements, a thoroughly competent person has been selected as referee, with the approval of both parties, and he reports thereon after a full cxaniiuafou, those who take objections to such a report are bound to prove their objec INDEX. 303 The Wavelet, p. 34. V. E. Weir, p. 145. Referee. Report of, objecfions of, how »o be lak,n-Co,uinue.i. tions by clear and satisfactory evidence for it u.;n „ . . unless there be an nv„r„^ r cviaence, lor it will not be overruled, -.tbe.ni^:2,:s;;-— -^---^^ Registration of mortgages and of bills of sale. '"'^ ""'"" '""""• ' "'" See The W. E. Wier, p. 145. Re.opening of decree. The S. B.Hume, having been picked up derelict by the G P 9/,. in whose estila r e iTofs™^^^^ by competent per.Ls. at 99,000, and the serviL h-f , ^^'^o^^ and owners acquiesced, character one-half '"«''' ^''" °"'' °^ " highly „,eritorious quentlytheprotor; fo';/;:'°°- ''■^'r''''"' ^^ ^^'^^S^- S^^se- aside L .uCr :rd' V ::rs: : nr't:'"'"'^^^ ^i*"^ '° -' acquiescence in the annraisempnT u ,u ■ ^"""""^ "^^* '^eir hension of the facts aS f . h ''" «''"" under a misappre- and that, therefore Hip -,,■-,,- 1 n. leaiized at such sale, "■ilh a view to a dcrree ™,l hi. i , '""""««( il» >alvor,, i /'<" S. B. Hume, p. 228. »a7.ooo, r«, V...., a.. ca,,„^ .„u"„ «'^:, t;::;',^- °°' " Held, that ,?2,8oo should be awarded. ^he total value of the ^::f:::''^::^''°^^^^^^' - - 'o -^'' "^^^'^^ -°"S the The Silver Bell, p. 43. The brigantine Marino, on a voyage from Boston to Sydney en countered a heavy gale, which carried away her rigging and rendered her almost unmanageable; in which condition she driTted a ong he coast of Nova Scotia for several days, until fallen in with by the team! ship to,n,ueree. which took her in tow, and after eight 01 nine hours brought her into Halifax Harbour. There was some evidence o an of.er of «5oo having been made for the services rendered, but no actual Tatd a"t .to:°™ ^^-^^ ''-'■ '''^ -- °^ ^'^ --- was ':';: Held, that the sura of »8oo should be paid for salvage. The Marino, p. i;t. Salvage— Co«^/««frf. INDKX. 30.3 r/(f Margaret, p. 171 ^-':^t:d::.S::"a:S^:;,trE;' '- '"^ ^-"^^^ ^--s .o.„, car«o shifted, but not to sucSa.'elnfn TTJ""'"" '°"^'>' "^^'her, her nor d,d she become unmanZaK ' T '- "' " ^^'^ •^^''""-"ds. theAmencancoastby t^e^ w J" T '''*' -^"^ ^^'^^ ^°""'l ^^ her master and crew without tree h ''-■'^°°"'^'-^- ^"^ abandoned by to Justify such a course'.'^ Tt , m^y^^.e?^"'""^"^'^^ ^^■'^^'-- nearer, the salvors brought her to S^ / '" ^^'''^ ''""'^ '""'^h taken possession of by the sa vors h ' " " "'^ ^""■^^' '^^'^ f^^^" to her, but was prevonfed by one o, tt T "^ ""'' '^'^"^'^ '° -'"■-" to take the vessel into Portland her l T '"" "' '''" ^^'^'='^ "^^t" The vessel was appraised It ^ Z .XT' '"' 'H'^ ^"^ '■^^"-^• H^'^i. that the vessel was not d re i'c a ;"'7' ^T' ^-'. ^.s.o, to be divid^its Ser::;;r^r ;s- --'^ -oforfeithisshareofthesZr^--:— -;-;;^2^ r/(e C//-^' '°-^- dered, while extremely onnort, 1^ f ,""'^' ''"^' ""= ^'^"■''^«^ r^n- meritorious character "^^ '"'' '"'"^'''^' ^^''^'•'^ "°t of a highly we:^::2;:.:^ '!:;;r^!;;;;'-7- -^^ '^^^ cargoes, fVel^ht, etc., 5-a,5oo; freight, S 9^ Th s;': 7' T"' ^^'""-"^ ''"7,50o; cargo 8250,000. ^^ ■"'^^"•■"-'^''''""'. vessel, »325,ooo; cargo, ■^->Xo^"ttr::rro:rr'^" the crew, according to tir " ° %"" V'"' "'^ '^'^"'^^ ^-°"« reviewed. — ir !.-i,,ng,. T„e modern decisions cited and The Augustc Andre, p. 201. 30() INDEX. Salvage—Contliiiial. broKe her shaft when two clays out, and the Cali/on.la. another steamer com.nR up, an agreement was entered into by the niaster of the d.sablecl steamer to be toued into Halifax, and to pav for the service such amount as should b.- settled upon by the Admiral'ty Court at that port. 1 his w-as accomplished within twentv-four hours without any mishap except the brealr„, i u " picked up a derelict allowed by the ^dmira tv a^tt '" ■"'" ""'' '"'" P°^'' '-- '-' of salvage. '"^'""^"''>' ^"'"ont.es to receive any allowance by way By man-of-war. T/ie jfolm, p. i2g. deS;:tii;?^bufr'j:;:p;-°'rr t--^' ^^'-^« --^-^ - ^ make any ctin, tire^efor "' '' ''^ Government authorities to Tlic Hernial!, p. m. — By passengers. This vessel, while on a vova^p fmm Cf n- on Sable Island. Only a fresh h° T '° "'''"^"■''' =^'^^"^'«^ of abandoning her. They alHeft her f ,r "''•*='!^'-,^'^"''='' -">• '"Mention taken proceedings to recover salva'e .s in casJof T r""'? '"""^' of the vessel paid the sum of ' f .■^' '^^ '"■'''"'^' "'^ °^^"" There was m.L conflicZ . ;^' Court, which they refused. the master re ly ntend 'to b:"T' "'^"'^ ''"^ """'^ ^ '''-''' ^^•'-"^- of the salvage sen"::tldrd "°" " "" ' ^"'^ ^^"'"^' "^ -"' -oSict o?:^;?;-"'?'" "' ^'"^ T" "'"''^'^"'' "^"^ "^^< •" view of t... of ev.dcn.., the parties .hould pay the.r own costs. The Stella Marie, p. i6. 808 INDKX. Salvage of life. A foreign ship becoming disabled in the Gulf of St Lawrenr^ h.r crew were taken „ff by one set of salvors, and safely landed T Held, that both sets of salvors were entitled to salva-e and a s-ile of the sh.p having been effected for 8,,5r,o the Cour nwl 1 ^ .7 sum of J06O to be divided among the salvo^ of the re^ at » : among the salvors of the ship. ' "'' ^^'"^ The Hcindall, p. 133. beetintu^mlVI' ''""'"" ^^ "f^-'-ge to fishermen who had wre;.:;t;ort"hfcorst.^^^""^ "^'^-^ '- '-- ^ ^--^- --mer T/ic Atlantic, p. 170. On derelict. The rule stated. See The Ida Barton, at p. 241. Salvors, Conduct of. See The Rotvenn, p. 255, and The Charles Forbes, p. 272. Seamen's wages, special contract for. shi^ir,)'/' Tr. P/"'""^'^"'^ shipped at Bermuda, on board the h,p I belled, a blockade runner, for the round voyage from Bermuda .0 W,lm.ngton, North Carolina, and thence to Halife., Novf s" Ua the o Zr' N T °''" • f P^' ^' ^"■""■"«'- ■" -- °f one of the others. No sh.p s articles were signed, but there was evidence to show that the master had contracted to pay to each of the promov^nts certain specified sums, in three equal instalments. The contract was absolute as to two of the instalments, and, as to the third the was a s^^tistC '"'' " "' '-'' °"'^^^'^^ Claimants. c;ndrtrr: w^;:b;trs;L;:;c:::;:ar ^'^ °^'*"^^^ ^-^^^^^^-^ '- — ^ The City 0/ Petersburg, p. i. Seamanship, want of. See Collision. Security for costs. bee Costs, Security for. t. Lawrence, her anded at a port ■r set of salvors nins port. The ulered while the land. vage, and a sale irt awarded the crew, and 8900 icindall, p. 132. ;rnien who had senger steamer Ulantic, p. 170. INDKX. Smuggling, conviciion for. Forfeits the vessel though the ow.er be innocent. See The Saruny, p. ^o^. no9 Tenders in the Admiralty Court. The practice with regard thereto. Tender, when sufficient, entitles defendant to costs. See The Peeress, p. 267. Towage and salvage, distinction between. See The Herman Ludwig. p. 211. The Mitrino, at p. 53. 72- on board the rom Bermuda Nova Scotia, cm of one of as evidence to e promovents contract was 1, there was a ;onduct were for seamen's ersburg, p. i. Validity of bottomry bond. See Bottomry Bond, Vice-Admiraity Courts, Jurisdiction and powers of. U!-i •• . .» ^''^ "/ Petersburg, p. i. Violation of Dominion Fisliery Acts. See Fishery Acts. etc. Violation of Revenue Laws. island of Cap. B,.,„„ 1 ..M > n ' ""' '" " ^^^ "»>'. >" "■« wi.l.o„ neci,, ft °°'',y"V;'f ,/'"'' °°' '«i"Sap„r, of .„„y, onboard; »„e of „«ch Zl" .ho. T " '""'"'^ ""''•'"'= 0°^' '"ZuT: "' " ■'"''"'^°' ''"'i^'" •'•"°"° '''°"' ""■ '"" The Minnie, p. 65. nu) INDEX. VIolatiou of Revenue Um—Coiitinucd. The schooner Gl,„1i„tor. whereof one Davis was master, wasenRa«ed ' .n the trade between nos..,n, U. S. A., and Yarmouth. N. S mak!n. o hero l,e,n« smu««l,n« c. rations, an investiKa.io', on the , art o) the Custom House authorities revealed the fact that the smugglin , o kerosene od had been systematically carried on by means of S out ward and inward manifests. °"'' H.W, that the vessel, with her apparel and furniture, was forfeited to the Crown, and that the master was liable under ih. n.l Customs Act, 3. Vic, cap. 0. in eighteen p^'ait^es': U-w ~ o »,oo each, for making an untrue report of goods on b,' r^ six of 'rb^To?' ", '"'^""'''"'^ '" "^^ '^"^'"^ -^> -m.n.,„l of goods hable to forfeiture, and S.X. of 840oeach, formaking untPed^claraZs T/ie Gladiator, p. igo. in miif" ^°'!°'^''T '"^ P«"^'"««-*?=>!nst amerchant doing business n Hahfax, the goods seued under the charge of duties being unpa d hereon constsfng of watches and other jewelry. The claiS alE that he had not .mported .he goods himself, but purchased them Hahfax, but faded to establish his defence, the dealings betweenlim ndh,s alleged vendors being exceeding,,,, omplica.ed and suspidoTs In addmon to th.s, certain statements of his own were brought in e^jd^e^nce admatmg that he had not paid duty on two of the7aJch:s Held, that the goods should be forfeited, and that the claimant should pay a fine of »ioo. with costs of suit. claimant The Queen v. Gold Watches and John Baldwin, Claimant, p. :„. The schooner Seaway, owned by Conrod and Cook, and trading between Cape Breton and Halifax, fell under the sus^icbn ^ e Customs authont.es. who set a watch upon her. and a systematic There was no evidence implicating Conrod in any of the transactions. W.W that the vessel was forfeited, with that portion of the careo which belonged to Cook; but. as Conrod was innocent, his case was The Seaway, p. 267. The defendant and three others, being discoverc in the illegal distUI.ng of spirits, the materials and apparatus used by hem were seized. No claim having been put in for them, thev were'condi; " INDEX. is was master, wasenRnRi;.! Yarmouth, N. S., making an having been aroused as •estiKation on the part of i'art that the smugRlin^- of on by means of false out- d furniture, was forfeited ble, under thp Dominion inalties, as follows :— Six. ■■ goods on b.'.-rd; six, of ig and rem?v.,.l of goods iking untr,ed?clarations. The Gladialot, p. 196. merchant doing business e of duties being unpaid y. The claimant alleged ■, but purchased them in le dealings between him iplicated and suspicious. ■s own were brought in y on two of the watches and that the claimant Mwin, Claimant, p. 179. and Cook, and trading 3r the suspicion of the her, and a systematic gled goods being taken any of the transactions. It portion of the cargo i innocent, his case was rest in the vessel might. The Seaway, p. 267. icovert in the illegal ;us used by them were . they were condemned. Violation of Revenue Laws -C,„uin,u.l. 311 and proceedings then tiL..n t„ .. AC. The defLdan^l rJd unl"' ' ' '''■"'""■" '"'^°^^' ^r "- of the Court. ^^'^'^ ""''^■'' '"■"'«'"• ''«">■'•"« the jurisdiaiun ^'•/'', that ,„e Court had full jurisdiction .n the matter. The Queen v. Flint, p. jSo. Wages of master. The master of this vessel, who was also a n,r» paid. "°'' '^''^'^^d, the note never having been y d mira part), m ignorance of the debt. The Aura, p. 5,^ c.2:^ri;i\:^iSi^Sr^^'^""^-'"-^^--- pleaded inaccuracy in the charg" rauj '".""•"''' '"' '''^''' "^«>- vessel, but produced no evidence in sunn f '?'t'"=^"^g«"'«n' "f the him. The masters accounts be nV^er^r r "'"'' '''''^'' ^8'^'"«' the Court to competent per ons with I ""^ ''''"'^ ^>- to the suit, and the refeLs ^ fter ^ , concurrence of both parties in favor of the master to the 1 ent of"^"^ , .•-^?'"'"^"°n. reported this report the owners filed numeosh •''■"'' "' '^'^ '^'^'™- T" as before. numerous objections, alleging fraud, etc.. See Master's IVnges. ^''"^ ^''I'les Fraser. p. lyj. Wages of Seamen. S^^ The City 0/ Petersburg, p. i. 312 INDEX. Wages of Seamen— Cu/i^'mm^i/. Action by master and three seamen for their wages. The accounts protlucud by the master, who had also acted as sliip's husband, were extremely unsatisfactory and unreliable. He claimed a balance due him of ?3i ;.8o, but filled to establish his right to more than 9j4.8o. There w.is nothing against the demand of the other promovents, and the amounts claimed were awarded them. Th( sums«o recovered, being al' under 840.00, and therefore might have been sued for before two Justices of the Peace or a Stipendiary Magistrate. Held, that the promovents should not have their costs. The Ann, p. 104. Wharves damaged by steamer. See Damage to Wharves. CO . A. ii Printed for the Publishers by Moore & Co., Equity Printing House, Toronto, sir waxes. The accounts as ship's husband, were 2 claimed a balance duo ht to more than 834.80. B other promovents, and n.oo, and therefore might 3 Peace or a Stipendiary their costs. The Ann, p. 104, ro inting House, Toronto.