صور الصفحة
PDF

policies of assurance, loading of ships, and all other matters and contracts which relate to freight due for the use of ships, transportation, money or bottomry; also all suits civil and maritime between merchants or between proprietors of ships and other vessels for matters in, upon, or by the sea, or public streams, or fresh-water ports, rivers, nooks and places overflown whatsoever within the ebbing and flowing of the sea and high-water mark, or upon any of the shores or banks adjacent from any of the first bridges towards the sea through England and Ireland and the dominions thereof, or elsewhere beyond the seas.” Power is also given to hear appeals from vice-admirals; also “to arrest . . . according to the civil laws and ancient customs of our high court

. all ships, persons, things, goods, wares and merchandise "; also “ to enquire by the oaths of honest and lawful men

. of all . . . things which . . . ought to be enquired after, and to mulct, arrest, punish, chastise and reform ”; also “to preserve the public streams of our admiralty as well for the preservation of our royal navy, and of the fleets and vessels of our kingdom . . . as of whatsoever fishes increasing in the rivers”; also “ to reform nets too straight and other unlawful engines and instruments whatsoever for the catching of fishes ”; also to take cognizance “ of the wreck of the sea . . . and of the death, drowning and view of dead bodies,” and the conservation of the statutes concerning wreck of the sea and the office of coroner [1276], and concerning pillages [i353], and “ the cognizance of mayhem " within the ebb and flow of the tide; all in as ample manner and form as they were enjoyed by Dr David Lewis [judge from 1558 to 1584], Sir Julius Caesar, and the other judges in order (22 in all) before Sir Robert Phillimore. This form of patent differs in but few respects from the earlier Latin patents ——temparc Henry VIII.—except that they have a clause non obslanlibus statutis.

As has been said, however, the contention of the common law judges prevailed, and the Admiralty Court (except for a temporary revival under Cromwell) sank into comparative insignificance during the 17th century. The great maritime wars of the 18th century gave scope to the exercise of its prize jurisdiction;‘and its international importance as a prize court in the latter half of the 18th and the first part of the 19th centuries is a matter of common historical knowledge. There were upwards of 1000 prize causes each year between 1803 and 1811, in some years upwards of 2000.

There were other great judges; but Sir William Scott, afterwards Lord Stowell, is the most famous. Before his time there were no reports of admiralty cases, except Hay and Marriott's prize decisions. But from his time onwards there has been a continuous stream of admiralty reports, and we begin to find important cases decided on the instance as well as on the prize side.

In the reign of Queen Victoria, two enabling statutes, 1840 and 1861, were passed and greatly enlarged the jurisdiction of the court. The manner in which these statutes were administered by Dr Stephen Lushington and Sir R. J. Phillimore, whose tenure of office covered the whole period of the queen’s reign till the creation of the High Court of Justice, the valuable assistance rendered by the nautical assessors from the Trinity House, the great increase of shipping, especially of steam shipping, and the number and gravity of cases of collision, salvage and damage to cargo, restored the activity of the court and made it one of the most important tribunals of the country. In 1875, by the operation of the Judicature Acts of 1873 and r875, the High Court of Admiralty was with the other great courts of England formed into the High Court of Justice. The principal officers of the court in subordination to the judge were the registrar (an oflice which always points to a connexion with canon or civil law), and the marshal, who acted as the maritime sherifi, having for his baton of office a silver oar. The assistance of the Trinity Masters, which has been already mentioned, was provided for in the charter of incorporation of the Trinity House. These officers and their assistance have been preserved in the High Court of Justice.

Till the year 1859 the practitioners in the High Court of

M odern progress.

[graphic]

Admiralty were the same as those in the ecclesiastical courts and distinct from those who practised in the ordinary courts. Advocates took the place of barristers, and proctors . . Practi

of solicitors. The place of the attorney-general was “0an In taken by the king's or queen’s advocate—general, and the war!that of the treasury solicitor by the king’s or queen’s

procurator or proctor. There were also an admiralty advocate and an admiralty proctor. The king’s advocate also represented the crown in the ecclesiastical courts, and was its standing adviser in matters of international and foreign law. The king’s advocate led the bar of his courts, and before the privy council took precedence of the attorney-general. The admiralty advocate or advocate to his majesty in his oflice of admiralty represented specially the lords of the admiralty. In the Admiralty Court he ranked next after the king’s advocate.

In an act of 1859 the practice was thrown open to barristers and to attorneys and solicitors.

Upon the next vacancy after the courts were thrown open, the crown altered the precedence and placed the queen’s advocate after the attorney- and solicitor-general. There were two holders of the oflice under these conditions, Sir R. J. Phillimore and Sir Travers Twiss. The office was not filled up after the resignation of the latter. The admiralty had, when the courts were thrown open, a standing counsel for the ordinary courts and a solicitor. Questions soon arose as to the respective claims of the admiralty advocate and the counsel to the admiralty, and their acuteness was increased when the courts were fused into one High Court of Justice. Upon the resignation of Sir James Parker Deane the office of admiralty advocate was not filled up. In like manner the proctor to the admiralty has disappeared. The office of king’s or queen’s proctor has been kept alive but amalgamated with that of the solicitor for the treasury. That oflicer uses the title of king’s proctor when he appears in certain matrimonial causes.

The last holder of the office of standing counsel to the admiralty was Alexander Staveley Hill, K.C.,M.P. Since his death the oflice, like those of the king’s or queen’s advocate and the admiralty advocate, has not been filled up; and the ordinary law officers of the crown with the assistance of a junior counsel to the admiralty (a barrister appointed by the attorney-general) perform the duties of all these oflices.

The judge advocate of the fleet is a practising barrister whose function it is to advise the admiralty on all matters connected with courts-martial. Though section 61 of the Naval

Jude! Discipline Act 1866 recognizes the possibility of his Advocate presence at a court-martial, he does not nowadays gag?"

attend, but is represented by his deputy or by an officiating deputy judge advocate appointed ad has by the admiralty, the commander-in-chief of the fleet or squadron who convenes the court-martial, or, if no such appointment is made, by the president of the court-martial. But though the judge advocate of the fleet does not actually attend the courtsmartial very responsible duties are imposed upon him. By a minute of the Board passed in 1884 (which is still in force) all proceedings of courts-martial on officers and men of the royal navy, excepting those where the prisoner pleads guilty and no evidence is taken, are to be referred to him, with a view to the consideration of (a) the charge, (b) the evidence on which the finding is based, and (c) the legality of the sentence, and he writes a minute on each case for the information of the lords commissioners of the admiralty with regard to these points. He has no power to modify a sentence, a power which is reserved to the admiralty by § 53 (I) of the Naval Discipline Act 1866, except in the case of a death sentence, which can only be remitted by the crown. All cases where the prisoner has pleaded guilty are examined in the admiralty, and if in any case there is any reason to think that there has been any informality or that the prisoner has not understood the eflect of his plea, such case is submitted to the judge advocate of the fleet for his opinion. The judge advocate of the fleet receives no fees but is remunerated by a salary of £ 500 per annum.

The existence of a deputy judge of the fleet appointed by the admiralty has been recognized by the king’s regulations, but no such officer had been appointed up to 1908.

ADMIRALTY ISLANDS—ADMIRALTY JURISDICTION

In accordance with the provisions of § 61 of the Naval Discipline Act 1866, in the absence of the judge advocate of the fleet and his deputy, an officiating judge advocate is appointed for each court-martial. His duties are described in detail ~by the king’s regulations, but may be summed up as consisting of seeing that the charges are in order, pointing out any informalities or defects in the charges or in the constitution of the court, seeing that any witness required by prosecutor or prisoner is summoned, keeping the minutes of the proceedings, advising on matters of law which arise at any time after the warrant for the courtmartial is issued, drawing up the findings and sentence, and forwarding the minutes when completed to the admiralty. The omciating judge advocate is usually the secretary of the flagofiicer convening the court-martial or some other officer of the accountancy branch. He is remunerated for his services by a fixed fee for each day the court sits.

Ireland—The High Court of Admiralty of Ireland, being formed on the same pattern as the High Court in England, sat in the Four Courts, Dublin, having a judge, a registrar, a marshal and a king’s or queen’s advocate. In peace time and war time alike it exercised only an instance jurisdiction, though in 1793 it claimed to exercise prize jurisdiction (see ADMIRALTY JURISDICTION). No prize commission ever issued to it. By the Irish Judicature Act of 1877 it was directed that it should be amalgamated with the Irish High Court of Justice upon the next vacancy in the office of judge, and this subsequently took place. There was no separate lord high admiral for Ireland.

Scotland—At the Union, while the national functions of the lord high admiral were merged in the English office it was provided by the Act of Union that the Court of Admiralty in Scotland should be continued “ for determination of all maritime cases relating to private rights in Scotland competent to the jurisdiction of the Admiralty Court.” This court continued till 18 31 , when its civil jurisdiction was given to the Court of Session and the Sheriffs’ Courts (see ADMIRALTY JURISDICTION).

See Sir Travers Twiss, Black Book a the Admiralty, Rolls series; R. G. Marsden, Select Pleas in the cart of Admiralty, published by the Selden Society; Godolphin, View of the Admiral Jurisdiction. (W. G. F. P.)

ADMIRAL'I‘Y ISLANDS, a group of about forty islands lying north of New Guinea, between 1° and 3° 8., and 146° and 148° 15., within the Bismarck Archipelago, belonging to Germany. The largest, Manus, is about 60 m. in length, and its highest point is about 3000 ft. above the sea; the others are very small, and rise little above sea-level. Most are of coral formation, but the hills of Manus are believed to be extinct volcanoes. The islands were discovered by the Dutch in 1616, and visited in 1767 by Philip Carteret; but no landing seems to have been effected, owing to the surrounding reefs, until the arrival of the “ Challenger ” in 1875. The natives are of the Papuan type, but show signs of mixed origin. They are cannibals, and many murders of whites have taken place.

ADMIRALTY JURISDICTION. The courts by which, as far as we know, admiralty jurisdiction in civil matters was first exercised were the following. In and throughout England the courts of the several admirals soon combined into one High Court of Admiralty (see ADMIRALTY, HIGH COURT or). Within the territories of the Cinque Ports the Court of Admiralty 0f the Cinque Ports exercised a co-ordinatc jurisdiction. In certain towns and places there were local courts of vice-admiralty. In Scotland there existed the Scottish High Court of Admiralty, in Ireland the Irish High Court of Admiralty. Of these courts that of the Cinque Ports alone remains untouched. The Scottish court was abolished, and its civil jurisdiction given to the Court of Session and to the courts of the sheriffs by the Court of Session Act 183o—not, however, till a decision given by it and the appeal therefrom to the House of Lords had established a remarkable rule of admiralty law in cases of collision (Hay v. 1e Neva, 1824, 2 Shaw, Sc. App. Cas. 395). The act states that the Court of Justiciary held cumulative jurisdiction with the Court of

[graphic]

205

Admiralty in criminal matters. The local vice-admiralty courts in England had ceased to do much work when they were abolished by the Municipal Corporations Act 1835; the High. Court became, with the other superior courts, a component part of the High Court of Justice by virtue of the Judicature Acts 1873 and 1875. And the Irish court has in like manner become a part of the High Court of Justice in Ireland by virtue of the Judicature Act passed in 1877.

As England first, and Great Britain afterwards, acquired

colonies and possessions beyond seas, vice-admiralty courts were established. The earliest known was that in Jamaica, established in the year 1662. Some vice- Xfiglmny admiralty courts which were created for prize purposes com-u, in the last century were suffered to expire after 1815. In the year 1863, when the act regulating the vice-admiralty courts was passed, there were vice-admiralty courts at Antigua, Bahamas, Barbadoes, Bermuda, British Columbia, British Guiana, British Honduras, Cape of Good Hope,Ceylon,Dominica, Falkland Islands, Gambia River, Gibraltar, Gold Coast, Grenada, Hong Kong, Jamaica, Labuan, Lagos, Lower Canada (otherwise Quebec), Malta, Mauritius, Montserrat, Natal, Nevis, New Brunswick, Newfoundland, New South Wales, New Zealand, Nova Scotia (otherwise Halifax), Prince Edward Island, Queensland, St Christopher, St Helena, St Lucia, St Vincent, Sierra Leone, South Australia, Tasmania, Tobago, Trinidad, ~Vancouver’s Island, Victoria, Virgin Islands (otherwise Tortola), and Western Australia, and (for matters of the slave trade only) Aden. By the act of 1867 one for the Straits Settlements was added. These courts have been regulated from time to time by the following statutes: 2 and 3 Will. IV. c. 51, 26 and 27 Vict. c. 24 (Vice-Admiralty Courts Act 1863), already cited, and 30 and 31 Vict. c. 45 (Vice-Admiralty Courts Act Amendment Act 1867); and by the slave trade acts, of which the last and consolidating act was that of 1873.

In 1890 the Colonial Courts of Admiralty Act provided that, except in the colonies of New South Wales, Victoria, St Helena and British Honduras, vice-admiralty courts should be abolished, and a. substitution made of colonial courts of admiralty. There is power, however, reserved to the crown to erect through the admiralty in any British possession any viceadmiralty court, except in India or any British possession having a representative legislature. No vice-admiralty court so established can exercise any jurisdiction except for some purpose relating to prize, the royal navy, the slave trade, foreign enlistment, Pacific Islanders’ protection, and questions relating to treaties or conventions on international law. Vice-admiralty courts exercised all usual admiralty jurisdiction, and in addition a certain revenue jurisdiction, and jurisdiction over matters of slave trade and prize and under the Pacific Islanders’ Protection Act. The appeal from vice-admiralty courts used to lie to the High Court of Admiralty of England, but has been transferred to the king in council.

By the Colonial Courts of Admiralty Act 1890, already referred to, every court of law in a British possession which is declared by its legislature to be such, or if there 2:23;, be no such declaration, which has original unlimited Admiral”, civil jurisdiction, shall be a court of admiralty.

There used at one time to be vice-admiralty courts for Calcutta, Madras and Bombay; but by the India High mail Courts Act 1861, § 9, the admiralty jurisdiction is given to the High Courts of these places.

Consular courts established in Turkey, China and Japan have had admiralty jurisdiction given to them, and Conn,” by § 12 of the Colonial Admiralty Courts Act any Com.“ court established by HM. for the exercise of jurisdiction in any place outside H.M.’s dominion may have admiralty jurisdiction granted to it.

By the Commonwealth of Australia Constitution Act 1900 a federal supreme court, to be called the High Court of Mum,“ Australia,is created,and the parliament of the Commonwealth may make laws conferring original jurisdiction on the High Court in matters of admiralty and maritime jurisdiction.

[blocks in formation]

where the claim does not exceed {150; claims for damage to cargo, or by collision, up to £300 (and for sums above these prescribed limits by agreement between the parties); and claims arising out of breaches of charter parties and other contracts for carriage of goods in foreign ships, or torts in respect thereof, up to £300. This jurisdiction is restricted to subjects over which jurisdiction was possessed by the High Court of Admiralty at the time when the first of these acts was passed. except as regards the last branch of it (the “Aline,” 1880, 5 Ex. Div. 227 ; R. v. Judge of City ofLondon Court, 1892, 1 QB. 272). In analogy with the county court admiralty jurisdiction created in England, a limited admiralty jurisdiction has been given in Ireland to the recorders of certain boroughs and the chairmen of certain quarter sessions ; and in salvage cases, where a county court in England would have jurisdiction, magistrates, recorders and chairmen of quarter sessions may have jurisdiction as official arbitrators (Merchant Shipping Act 1894, § 547). In Scotland, admiralty suits in cases not exceeding the value of £25 ar exclusively tried in the sheriff’s court ; while over that limit the sherifi’s court and the Court of Session have concurrent jurisdiction. The sherifi has also criminal admiralty jurisdiction, but only as to crimes which he Would be competent to try if committed on land (The Court of Session Act 1830, §§ 21 and 22).

By an act of 1821 an arbitral jurisdiction in cases of salvage was given to certain commissioners of the Cinque Ports.

The appeal from county courts and commissioners is to the High Court of Justice, and is exercised by a divisional court of the Probate, Divorce and Admiralty Division. In cases arisingwi thin the Cinque Ports there is an optional appeal to the Admiralty Court of the Cinque Ports. The appeal from the High Court of Justice is in ordinary admiralty matters, as in others, to the Court of Appeal, and from thence to the House of Lords. But it is specially provided by the Judicature Act 1891, as it was by the Prize Act 1864, that the appeal in prize cases shall be to the sovereign in council.

The unfortunate provisions of the legislature, giving to the jurisdiction of county courts different money limits in admiralty equity and common law cases, make the distinction between cases coming under the admiralty jurisdiction and other civil cases of practical moment in those courts. Arguments full of learning and research have been addressed to the courts, and weighty decisions have been given, upon questions which would never have arisen if the county courts had not a larger money area of jurisdiction in admiralty cases than they have in other matters (R. v. Judge of City of London Court, 1892, 1 QB. 273; the “Zeta,” 1893, App. Cas. 468). But as regards the high courts, whether in England, Scotland or Ireland, it is not now necessary to distinguish their civil admiralty jurisdiction from their ordinary civil jurisdiction, except for the purpose of seeing whether there can or cannot be process in rem. Not that every admiralty action can of right he brought in rem, but that no process in rem lies at the suit of a subject unless it be for a matter of admiralty jurisdiction—one, for instance, that could in England have been tried in the High Court of Admiralty. Now these matters of admiralty jurisdiction with process in rem range themselves under four primary and four supplementary heads. The four primary are damage, salvage, bottomry, wages; and the four supplementary are extensions due to one or other of the statutes of 1840 (Admiralty Court) and 1861 (Admiralty Court Act). They are damage to cargo carried in a ship, necessaries supplied to a ship, mortgage of ship, and master’s claim for wages and disbursements on account of a ship. In all these cases, primary and secondary, the process of

AppeaLI.

Clle jurisdiction .

[graphic]

which a plaintifi can avail himself for redress, may be either in personam as in other civil suits, or by arrest of the ship, and, in cases of salvage and bottomry, the cargo. Whenever, also, the ship can be arrested, any freight due can also be attached, by arrest of the cargo to the extent only of the freight which it has to pay. For the purpose of ascertaining whether or not process in rem would lie, there have been distinctions as nice, and the line of admiralty jurisdiction has been drawn as carefully, as in the cases of the admiralty jurisdiction of the county courts (the “Theta,” 1894, Prob. 280; the “Gas Float Whilton,” 1897, App. Cas. 337). There have been similar questions raised in the United States, from De Lovio v. Boil (1815, 2 Gallison, 398), and Ramsay v. Allegre (1827, 12 Wheaton, 611), down to the quite modern cases which will be found quoted in the arguments and judgments in the “Gas Float Whitton.”

The disciplinary jurisdiction at one time exercised by the

Admiralty Court, over both the royal navy and merchant vessels, may be said to be obsolete in time of peace, the last ‘ remnant of it being suits against merchantmen for Elfin” flying flags appropriate to men-of-war (the “Minerva,” 1800, 3 C. Rob. 34), a matter now more effectively provided against by the Merchant Shipping Act 1894. In time of war, however, it was exercised in some instances as long as the Admiralty Court lasted, and is now in consequence exercisable by the High Court of Justice (see Prize below). It was, perhaps, in consequence of its ancient disciplinary jurisdiction that the Admiralty Court was made the court to enforce certain portions of the Foreign Enlistment Act 1870.

Finally, appeals from decisions of courts of inquiry, under the Merchant Shipping Act, cancelling or suspending the certificates of officers in the merchant service, may be made to the Probate, Divorce and Admiralty Division of the High Court of Justice.

The admiralty jurisdiction in criminal matters extends over all crimes committed on board British ships at sea or in tidal waters, even though such tidal waters be well within foreign territory (R. v. Anderson, 1868, LR. 1 C.C.R. 161), but not over crimes committed on board foreign vessels upon the high seas (R. v. Servo, 1845, 1 Denison C.C. 104). Whether it extended over crimes committed on foreign ships within territorial waters of the United Kingdom, and whether a zone of three miles round the shores of the United Kingdom was for such purpose territorial water, were the great questions raised in R. v. Keyn (the “Franeonia,” L.R. 2 Ex. Div. 126), and decided in the negative by the majority of the judges, rightly, as the writer of this article respectfully thinks. Since then, however, the legislature has brought these waters within the jurisdiction of the admiralty by the Territorial Waters Jurisdiction Act 1878. Section 2 runs as follows : “ An offence committed by a person, whether he is or is not a British subject, on the open sea within the territorial waters of British dominions, is an ofience within the jurisdiction of the admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried and punished accordingly.” By § 7 the “ jurisdiction of the admiral ” is defined as “ including the jurisdiction of the admiralty of England or Ireland, or either of such jurisdictions as used in any act of parliament ; and for the purpose of arresting any person charged with an offence declared by this act to be within the jurisdiction of the admiral, the territorial waters adjacent to the United Kingdom, or any other part of her majesty’s dominions, shall be deemed to be within the jurisdiction of any judge, magistrate or ofi‘icer." And “ territorial waters of her majesty’s dominions” are defined as “in reference to the sea, meaning such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of her majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of her majesty; and for the purpose of any offence declared by this act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast, measured from low-water mark, shall be deemed to be open sea within the territorial waters of

[ocr errors]

her majesty’s dominions.” As to those portions of the sea and tidal waters which, by reason of their partially land-locked positions, are deemed to be in the body of a county, there is not admiralty jurisdiction, but crimes are tried as if they were committed on land within the same county.

Pirates, whatever flag they pretended to fly, were, from 1360 onwards, wherever their crimes were committed, subject to the admiralty jurisdiction. The criminal jurisdiction of the admiralty was first exercised by the High Court of Admiralty; and then, by virtue of the Oflences at Sea Act 1536, transferred to commissioners appointed under the great seal, among whom were to be the admiral or admirals, his or their deputies. Admiralty sessions were held for this purpose till 1834. Admiralty criminal jurisdiction is now, by virtue of the series of statutes, the Oflences at Sea Act 1799, the Central Criminal Court Act 1834, Offences at Sea Act 1844, and the criminal law consolidation acts passed in 1861, exercised by the Central Criminal Court and by the ordinary courts of assize. Special provision for trial in the colonies of offences committed at sea has been made by an act of William III. (1698—1699), the OHences at Sea Act 1806, and the Admiralty Ofiences (Colonial) Act 1849.

The Admiralty Court had jurisdiction in matters of prize from very early times; and although since the middle of the 17th century the instance, or ordinary civil jurisdiction of the court, has been kept distinct from the prize jurisdiction, they were originally both administered and regarded as being within the ordinary jurisdiction of the lord high admiral. The early records of the admiralty show that the origin of the prize jurisdiction is to be traced to the power given to the court of the admiral to try cases of piracy and “ spoil,” Le. captures of foreign ships by English ships. The earliest recorded case of spoil tried before the admiral is in 1357, when the goods of a Portuguese subject, taken at sea by Englishmen from a French ship which had previously spoiled a Portuguese, were awarded by the admiral as good prize to the English captors ; and Edward III. in a letter to the king of Portugal answering a complaint on the subject gives the admiral’s decision as a reason for refusing their restoration. During the 16th century a very large part of the business of the Admiralty Court related to spoil and piracy, and the privy council often directed the judge of the court how to deal with the spoil cases, with regard to which foreigners who had suflered from attacks by English ships made petition for redress to the admiral or the council. The spoil suit at this time (caura spolii) was a civil proceeding resulting in a decree absolutoria, dismissing the defendant, or condemnatan'a, ordering restoration to be made by him. In 1 585 the patent of Howard, the lord high admiral, authorized him to issue letters of reprisal against Spain; and an order in council regulating the conduct of those to whom such letters were issued provided by an additional article (18 59) that all prizes were to be brought in without breaking of bulk for adjudication by the Admiralty Court. The court was also resorted to at this time by captors, sailing under commissions granted by the allies of England, such as the king of France and the Dutch. About the middle of the 17th century separate sittings of the court for instance and prize business began, perhaps because of the conflicting claims to droit: of Charles II. and the duke of York as lord high admiral; and privateering under royal commission took the place of the former irregular “spoiling.” The account which Lord Mansfield gave of the records of the Admiralty Court, that there were no prize act books earlier than 1641, or prize sentences earlier than 1648, and that before 1690 the records were in confusion, must be qualified by the correction that there are in existence prize sentences (on paper, not parchment) as early as 1589.

Although the courts of common law hardly ever seem to have interfered with or disputed the admiralty prize jurisdiction, its exclusive nature was not finally admitted till 178:; but long previously royal ordinances (1512, 1602) and statutes (1661, giving an alternative of commissioners, 1670, 1706) had given the Admiralty Court the only express jurisdiction over prize. The same statute of Anne and acts of 1739 and 1744 give prize

Prize.

[graphic]
[graphic]

jurisdiction to any court of admiralty, and the courts of admiralty for the colonies and plantations in North America.

It has been a disputed question whether the prize jurisdiction of the court was inherent, i.e. coming within the powers given by the general patent of the judge, in which no express mention of it is made, or whether it required a special commission. Upon this subject the judgment of Lord Mansfield in Linda v. Rodney (1782, Dougl. 612), the judgment of Mr Justice Story in De Lovio v. Bait (1815, 2 Gallison, 398), and Marsden’s Select Pleas of the Court of Admiralty (introduction), may be consulted. But the settled practice now and for a long time past has been for a special commission and warrant to be issued for this purpose. In connexion with this it is observable that in 1793 the Admiralty Court of Ireland claimed to exercise prize jurisdiction under its general patent; and it is said to have been the opinion of Sir W. Wynne that the Admiralty Court of Scotland had a similar right (Brown, Civil Law of Admiralty, vol. ii. 211, 212). Any jurisdiction of the Scottish court over prize of war was transferred to the English court by the Court of Session Act 1825, § 57. As to the Irish court, by the Act of Union it was provided that there should remain in Ireland an instance court of I admiralty for the determination of causes civil and maritime only. '

In 1864 the constitution and procedure of prize courts, which had until then been prescribed by occasional acts passed for each war as it arose, were for the first time made permanent by the Naval Prize Act, by which the High Court of Admiralty and every admiralty or vice-admiralty court, or any other court exercising admiralty jurisdiction in British dominions, if for the time being authorized to exercise prize jurisdiction, were made prize courts. The High Court of Admiralty was given jurisdiction throughout British dominions as a prize court, and, as such, power to enforce any order of a vice-admiralty prize court and the judicial committee of the privy council in prize appeals— this power mutatis mutandis being also given to vice-admiralty prize courts. An appeal was given from any prize court to the sovereign in council. Prize courts were given jurisdiction in cases of captures made in a land expedition or an expedition made conjointly with allied forces, and power to give prize salvage on recaptured ships and prize bounty; and a form of procedure was prescribed. The High Court was also given ex-' clusive jurisdiction as a prize court over questions of ransom and petitions of right in prize cases, and power to punish masters of ships under convoy disobeying orders or deserting convoy. By the Naval Discipline Act 1866, power to award damages to convoyed ships exposed to danger by the fault of the officer in charge of the convoy was also given to the High Court. Under other statutes it had power to try questions of booty of war when referred to it by the crown, in the same way as prize causes, and claims of king’s ships for salvage on recaptures from pirates, which could be condemned as droits of admiralty, sub_ ject to the owner's right to receive them on paying one-eighth of the value, and also power to seize and restore prizes captured by belligerents in violation of British neutrality, or by a ship equipped in British ports contrary to British obligations of neutrality.

All jurisdiction of the High Court of Admiralty has since passed to the High Court of Justice, which is made a prize court under the Naval Prize Act, with all the powers of the Admiralty Court in that respect; and all prize causes and matters within the jurisdiction of that court as a prize court are assigned to the Probate, Divorce and Admiralty Division; and an appeal from it as a prize court lies only to the king in council (Judicature Acts 1873 and 1891).

By' an act of 1894 further provision is made for the constitution of prize courts in British possessions. A commission, warrant or instruction from the crown or the admiralty may be issued at any time, even in peace; and upon such issue, subject to instructions from the crown, the vice-admiral of the possessions on being satisfied by information from a secretary of state that war has broken out between Great Britain and a foreign state, may make proclamation to that effect, and the commission or warrant comes into effect. The commission or

warrant may authorize a vice-admiralty court or colonial court of admiralty to act as a prize court, or establish a vice-admiralty court for that purpose, and may be revoked or altered at. any time. The court is authorized to act as a prize court during the war, and shall after its conclusion continue to act as such, and finally dispose of all matters and things arising during the war, including all penalties and forfeitures incurred therein. Rules of court may also be made by order in council for regulating, subject to the Naval Prize Act, the procedure and practice of prize courts under that act, the duties and conduct of their officers and practitioners, and the fees and costs therein (Prize Courts Act 1894, §§2, 3). This latter power has been exercised; and prize rules for the High Court of Justice and the viceadmiralty prize courts were framed in 1898 (Statutory Rules and Orders, 1898).

AUTHORITIES.——Marsden, Select Pleas o the Court of Admiralty, Selden Society, London, 1892 and 1397; ouch, Jurisdiction of the Admiralty of England asserted; Robinson, Collectanea .Marilima; Brown, Admiralty; Edwardes, Admiralty; Phillimore, International Law, vol. i., vol. iii. part xi.; Pritchard, Admiralty Digest, tit. Jurisdiction. (\V. G. F. P.)

UNITED STATES

The source of admiralty jurisdiction in the United States is Article 3, § 2 of the United States Constitution:——“ The judicial power shall extend to all cases of admiralty and maritime jurisdiction.” The United States Supreme Court has declared that by virtue of these words the admiralty jurisdiction extends not only to the high seas but to the great lakes and the rivers connecting them, and to all public navigable waters in the United States (the “ Genesee Chief ” v. Fitz-H ugh, 1 2 Howards U.S. Rep. 443), including even interstate canals (Ex. p. Boyer, 109 U.S. Rep. 629, the “Robert W. Parsons,” [1903] 191 U.S. 17), and is not confined to tide waters. The American colonies had vice-admiralty courts with an admiralty jurisdiction equal to the largest claimed by the English admiralty courts even under Edward III. When they became states they delegated to the federal government their several “ admiralty and maritime jurisdiction,” using these words in the sense understood in every country in Europe, England excepted, and in the sense in which they had then been used in the colonies for a long time, and without reference to the very narrow jurisdiction of the English admiralty courts then existing (Waring v. Clark, 5 Howards U.S. Rep. 441).

It is settled as to the United States admiralty jurisdiction not that it is “ co-equal with that of the original English, or that of continental European admiralty, but is rather that defined by the statutes of Richard 11., under the construction given to them by contemporary or immediately subsequent courts of admiralty ” (2 Parsons Adm. 176), and that it embraced all maritime contracts, torts, injuries or ofiences (De L07)‘l0 v. Boil, 2 Gallisons Rep. 398; Waring v. Clark, 5 Howards U.S. Rep. 441), and that it has never been restricted by the action of the common law courts as in England under Lord Coke (2 Parsons Adm. 166 n.; Waring v. Clark; De Lovio v. Boil).

Original admiralty jurisdiction was by the Judiciary Act of 1789 (U.S. Rev. Stats. § 563) granted to the United States district courts exclusively, except that concurrent original jurisdiction was given to United States circuit courts over seizures for slave trading, and condemnations of property used by persons in insurrection (§ 629; § 5309), and in the coolie trade (§ 2159), and by the act of the 3rd of March 1901; the supreme court of the District of Columbia is given the same jurisdiction as the district and circuit courts. The Supreme Court of the United States has no original jurisdiction in admiralty. All suits are brought in the first instance in the district court. Appeals lie, both on the law and on the facts, from a final decree of that court to the circuit court of appeals only, except in cases involving the jurisdiction of the court, the constitutionality of a law of any state or of the United States, or the validity or construction of any treaty of the United States, and except cases of prize and capital or infamous crime, in which cases of appeal lies directly to the supreme court. In cases of gravity and importance the Supreme Court may by certiorari review the judgment of the circuit court of

[graphic]

appeals, but such cases are rare (re Lou O'w Bow, 141 U.S. Rep. 587; Benedict’s The American Admiralty, § 607). Formerly the Judiciary Act authorized an appeal from the district court to the circuit court, and thence to the Supreme Court. But the act of the 3rd of March 1891 (Ch. 51 7) abolished this and created the circuit court of appeals, making it the final appellate court in admiralty, except as above stated. In any case where the district judge is unable to perform his duties or is disqualified by reason of interest or of relationship, or has acted as counsel for one of the parties to the action, it may be removed to the circuit court in that district (U.S. Rev. Stats. §§ 587, 589 and 601). 'These are now the only cases in which admiralty suits can come before the circuit court (Benedict’s Adm. § 321).

The subject matter in cases of contract determines the jurisdiction (the “Gcneral Smith,” 4 Wheaton U.S. Rep. 438), and not the presence or absence of tide, salt water, current, nor that the water he an inland basin or land-locked, or a river, nor by its being a harbour, or a port within the body of the county, nor that a remedy exists at common law. The admiralty courts have jurisdiction over all matters that concern owners and proprietors of ships as such; possessory actions and petitory actions to try title of a ship; cases of mariners" wages, wharfage, dockage, lighterage, stevedores, contracts of affreightment, charter parties, rights of passengers as such (the “Moses Taylor,” 71 U.S. Rep. 411), pilotage, towage, maritime liens and loans, bottomry, respondentia and hypothecation of ship and cargo, marine insurance, average, jettison, demurrage, collisions, consortship, bountjes, survey and sale of vessel, salvage, seizures under the laws of impost navigation or trade, cases of prize, ransom, condemnation, restitution and damages; assaults, batteries, damages and trespasses on the high seas and navigable waters of the United States; but not suits in rent for duties (Benedict’s Adm. §303a).

The U.S. Supreme Court has held in Peoples Ferry Co. v. Beers, 2o Howards U.S. Rep. 393, and in a series of subsequent cases that a contract to build a vessel is not a maritime contract (the ‘.‘Robert W. Parsons ”). Contracts to furnish cargo for ships and to furnish ships to carry the cargoes are maritime contracts (Graham v. Oregon R. fr N. Co., [1905] 135 Fed. Rep. 608). .

Whenever there is a maritime lien, even though created by state statute as to a ship in her home port, it may be enforced by suit in rem in admiralty in the federal courts (the “ General Smith"; the “Lottawanna,” 21 Wallace Rep. 558, Benedict’s Adm; § 270). In all suits by material men for supplies and repairs or other necessaries for a foreign ship, the libellant may proceed against the ship and freight in rem or against the master or owner in personam (12th Admiralty Rule; Benedict’s Adm. § 268; the “ General Smith”). Actions in rent and in personam may be joined in the same libel (Nowell v. Norton, 3 Wallace 2 57; the “Normandie,” 40 Fed. Rep. 590). But a contract to furnish fishermen with clothing, tobacco and other personal effects for use on a voyage is not a maritime contract, and a court of admiralty has no jurisdiction to enforce it in rem (the “ May F. Chisholm,” 1904; 129 Fed. Rep. 814). The state courts have no jurisdiction in rem over any maritime contract or tort (the “Lottawanna,” the “ Belfast,” 7 Wallace Rep. 624). Admiralty jurisdiction in tort depends on locality; it must have occurred on the high seas or other navigable waters within admiralty cognizance (2 Parsons Adm. 347; the “Plymouth,” 3 Wallace Rep. 20; the “Genesee Chief ” ,v. Fitz-Hugh, the “ Blackhealh,” [1903] 122 Fed. Rep. 112).

The U.S. Supreme Court in the “ Harrisburg ” (119 U.S. 199) and the “ Alaska” (130 U.S.'207), after some conflict of opinion, held that the admiralty courts have no jurisdiction under the general admiralty law to try an action for damages for negligence on the high seas, causing death of a human being, while there was no act of Congress and no statute of the state to which the vessel belonged giving such right of action (Benedict’s Adm. §§ 275-309a), nor where such statute is that of a foreign country (Rundell v. Compagnie Générale, [1899] 94 Fed. Rep. 366).

Admiralty has jurisdiction in cases of spoliation and piracy,

« السابقةمتابعة »