The admiralty decisions of Sir William Young : 1865-1880
Young, William, Sir, 1799-1887 | Oxley, James M. (James Macdonald), 1855-1907 | Nova Scotia. Vice-Admiralty Court
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There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016960233 THE Admiralty Decisions OF SIR WILLIAM YOUNG, Kt., LL.B. Judge of the Court of Vice-Admiralty for the Province of Nova Scotia, and late Chief Justice of the Supreme Court. 1865 — 1880. EDITED BY JAMES M. OXLEY, LL.B., B.A. Barrister-at-Law, Editor of " The Nova Scotia Decisions." TORONTO: CARSWELL & CO., LAW BOOK PUBLISHERS, 1882. Printed by IVTCtore & Co., Law Printers, EQUITY PRINTING HOUSE, 20 ADELAIDE STREET EAST, TORONTO. EDITOR'S PREFACE. rpHIS volume contains all the judgments of permanent value delivered by Sir William Young, while sitting as Judge in the Court of Vice-Admiralty, for the Province of Nova Scotia, and will be found to embrace decisions upon many of the most important questions of principle and practice, falling within the jurisdiction of such a Court. The cases have been printed from His Lordship's manu- script notes, supplemented by reference to the papers in the cause. No report of the arguments having been pre- served, summary of the points taken by Counsel could not be given, but the names of the respective Counsel engaged so far as obtainable have been appended. The circum- stance that His Lordship invariably prefaced his decisions with an adequate statement of the facts, as well as the pleadings, in large measure compensates for the absence of a cotemporary report of the proceedings before him. The sheets have been all carefully read by His Lordship while passing through the press, so that the utmost attainable accuracy may be considered as secured, and the Editor commits the work to his professional brethren with the hope, that his labours may prove in some degree successful in rendering available these hitherto unpublished decisions of such manifest value. JAMES M. OXLEY. Halifax, N. S., May, 1882. TABLE OF CASES. The Abby Alice 112 Afton 136 A. H. Wanson 83 A.J.Franklin 89 Al'exander Williams 217 Alhambra 249 The Ann 104 Architect no Atlantic 170 August Andrfe 201 Aura 54 B The Bella Mudge 222 The Cambridge 63 Canterbury j 57 Charles Forbes 172 Chase 113 City of Petersburg i Clementine 186 E The Edith Wier 237 Eleven Casks of Oil 128 The Emma 282 F The Flora VI TABLE OF OASES. The Genoa 275 Gladiator 196 H The Heindall 132 Herman m Herman Ludvi^ig 211 I The Ida Barton 240 J The James Fraser 159 Jean Anderson 244 J. H. Nickerson 96 John 129 M The Margaret 171 Marino 51 Martha 247 Minnie 65 P The Peeress 263 Q The Queen v. Flint 280 The Queen v. Gold Watches 179 R The Regina 107 Richmond 164 R. Robinson 168 Rowena 255 Royal Arch 261 Runeberg 42 TABLE OF CASES. VH The Sarah 102 S.B.Hume 228 Scotswood 25 Seaway 267 Silver Bell 43 Stella Marie 16 Sylphide 137 S. V. Coonan 109 T The Three Sisters 149 Tickler 166 Two Bales of Cotton 135 W The Wampatuck 75 Wavelet 34 We 're Here 138 W. E. Wier 145 W. G. Putnam 271 ERRATA. Page 105 — In fifth line of Head-note, read "$40.00" for "$400.00.' Page 195 — In bottom line, io^' Lennox, Q.C.," read "Lenoir." Page 216 — In second last line\ insert "and" between Thompson and A ttorney -General. Page 231 — In eighteenth line from \op, for " 1870," read " 1879." IN THE VICE-ADMIRALTY COURT AT HALIFAX. The Honorable Sir William Young, Presiding Judge. * The " CITY OF PETEKSBUEG." (January 28, 1865.) Two out of three promovents shipped at Bermuda, on board the ship hbelled, a blockade runner, from the round voyage from Bermuda to Wilmington, North Carolina, and thence to Halifax, Nora Scotia. The remaining promovent shipped at Wilmington in room of one of the others. No ship's articles were signed, but there was evidence to show that the master had contracted to pay to each of the promovents certain specified sums, in three equal instalments. The contract was absolute as to two of the instalments, and, as to the third, there was a condition that it was to be paid only if the claimants' conduct were satisfactory. Held, I. That this was not an ordinary engagement for seamen's wages, but a special contract. 2. That previous to the Admiralty Court Act of 1861, 24 Vic. cap. 10, the High Court of Admiralty had no jurisdiction over such contracts. 3. That this Act did not extend to the Vice Admiralty Courts, nor were the provisions resjDCCting special contracts embraced in its tenth section extended to those Courts by the Act of 1863, 36 Vic. cap. 24, sec. 10. 'Reprinted from i Oldright, p. 814. V-A.E. 1 Z VICE -ADMIRALTY COURT. 4. That, although the commission formerly issued to the Vice-Admiralty Judge empowered him " to hear and determine all causes according to the civil and maritime laws and customs of our h igh Court of Admiralty of England," yet this power, like some others assumed to be bestowed by the commission, is frequently inoperative. And that, therefore, this Court has no jurisdiction in cases like the present. Held, also, that, although the respondents were bound to have objected to the jurisdiction in limine, by appearing under protest, still, that, where the Court is of opinion that it has no jurisdiction, it will not only entertain the objection at the hearing, but is bound itself to raise it. These were actions for seamen's wages, promoted by three seamen against this vessel. The causes were tried together twice — once before the late Judge Stewart, who ordered a re-argument, and again before the present Judge of this Court — by Sutherland, Q.C., and Le Noir, for the promovents, and by Ritchie Q.C., and J. N. Ritchie for the vessel. The pleadings and the facts are fully set out in the judg- ment. Young, J., delivered judgment as follows : The City of Petersburg is a blockade runner, plying be- tween Bermuda and Wilmington, the voyage in question in these suits having terminated (in consequence of the fever at the former of these places in the month of September last) at this port. Two of the plaintiffs, Nichol and Bailey shipped, the one as chief cook, and the other as second steward, at Bermuda, for the round voyage, and were dis- charged by Capt. Fuller, the then master, for alleged incompetence, at Wilmington ; 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 Wilmington on the 13th — was detained till the 29th at quarantine left Wilmington again on the 5th September, and arrived here on the 13th. 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. CITY OF PETEBSBUKG. S ■Campbell, one of the owners, in the steamer of 29th Sep- tember, a few days before these actions were brought. Webb, the chief steward of the ship, appears also to have left before they were brought — so that the two principal witnesses for the defendants could not be examined. The libels exhibited by the plaintiifs are in the ordinary form, but omit in the schedules, as required by the rule, a statement of the sums received on account and the balances ■claimed to be due ; these balances, however, appear in the affidavits. In point of fact Nichol claims |120, Bailey $80, and Valley $120, with the difference of exchange and costs. The responsive allegations in the three suits are nearly the same. The hiring alleged in John Nichols' libel. No. 216, was for hazardous services, and wages therefor said to have been promised in one sum of $180, payable, part on leaving Bermuda, and the remainder on arrival of the ship at the termination of the voyage there or at Halifax ; while the responsive allegation pleads, in the first article, that the wages were payable in three sums each of sixty dollars — ihe first on leaving Hamilton, the second on the termina- tion of the voyage at Bermuda or Halifax, and the third as an additional bounty, " provided the master was satisfied with the plaintiff's conduct during the voyage." The second article of the allegation sets forth the incompetency •of the plaintiff and his discharge therefor. The third alleges that the master was not allowed to leave the plain- tiff, being a British subject, at Wilmington, but was com- pelled to bring him to Halifax as a passenger. And the fourth claims the benefit of the 189th section of the Mer- chants' Shipping Act, 1854, the sum claimed by the plain- tiff being under ^50. There are no other pleadings in cither case, and by agreement the evidence taken in the -three suits was to be used in all or any of them as far as it might be appHcable. The three were argued together before the late Judge Stewart, and a re-argument having been ordered by him, on account of the difficulties which the cases presented, they were again heard before me on the 20th and 21st instant. The first object of enquiry is the nature of the contract. 4 VICE-ADMIEALTY COURT. This is common to all the three cases, the plaintiffs' counsel contending that, with some variation in the mode of pay- ment, it is the ordinary engagement for seamen's wages, tO' he considered and dealt with as such ; and the defendants, insisting that it is a special contract, and, as such, not within the jurisdiction of this Court. On this very material point, the pleadings, as we have seen, and the evidence are conflicting. 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 Dunbar says, that every company has its own prices and mode of pa}'- ment ; and Wade testifies that the wages in the Old Do- minion and City of Petersburg which were owned by the same company, were different from those in other ships. Nichol says that his wages were to be $180 in all, payable in gold, of which he received $60 in advance, " and the balance was to . be paid on arrival if they made the clear 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 hired. I should not have gone.'' Bailey 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 woiild give Nichol three sixties — those were the words he used — he said nothing about cotton money." And again, he says, " nothing was 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 he admits having received), and eighty on termination of voyage." Nichol, confirming 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 what actually passed at the hiring of these men. It is obvious, however, that something CITY OF PETEESBUKG. 5 ■else either did pass or was understood between the parties. l\o such contract as is here represented was had with any •other of the men either of tlie Old Dominion or the City of Petersburg. Nichol himself says, "that the custom of wages was well understood among the men," — and what that custom was is abundantly proved by the witnesses for the defence. Mr. Hull, formerly chief, now second, officer of the ship, says, " The rate in ships of the class of the Citi/ of Petersburg is $60 for the chief cook, when we leave port for the passage from Hamilton to Wilmington. If the man keeps on, when he comes back to any British port, $60 more — 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 from the owners at their option if the men give satisfaction." " What the owners pay on leaving Bermuda is an advance ; what they agree to pay leaving Wilmington is a bonus ; cotton money is a present." Of his own pay, he says, " Oapt. Fuller hired me. My wages, as second mate, were $75 for the passage in — if I icame out in the ship, $75 more — and if I gave satisfaction, $75 more as cotton money. I gave satisfaction, and got it." Ales. Cameron, supercargo of the ship, and a partner in the adventure, says : " The men shipped at Bermuda, and were paid in advance there as by tariff ; after running the blockade, and reaching a neutral port (that is, outside the Confederacy), with a cargo, they are paid bounty and cotton money ; the cotton bounty is optional with the cap- lain — provided the conduct of these men deserves this cot- ton bounty, they get it, otherwise not. " Copies of the tariff," he adds, " were supplied to the chief officer and ■engineer." Capt. Page, the master of the Old Dominion, also says, ""that the cotton money was payable to the men, provided they gave satisfaction ; that the bounty system is perfectly -understood by the seamen, as well as by the party engaging, when they engage. Thos. Purcell, chief steward of the Old Dominion, produced a copy of the .tariff common to both vessels, and which he read to the men of his department. The crew had one copy forward, and it was read by Lowrick, 6 VICE-ADMIRALTY COUKT. one of the witnesses for these plaintiffs, but not examined upon this 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 another, 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 optional with the captain to have dis- charged all the crew at Wilmington, and in that case they would have forfeited the rest of their wages." But while in this absence of ship's articles (a want which may ba very injurious in such suits to the owners, but is never allowed in this Court to operate against the seamen), a cer- tain degree of security rests upon this contract, it is impos- sible to view it, upon the whole evidence, as an ordinary- contract for mariners' 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. — (Abbott on Shipping, 658.) In the case of the Riby Grove, 2 W. Eob., 61, Dr. Lush- ington observes "that unfortunately what is or is not a special contract, no one has attempted to define. None of the decided cases have defined specifically what is a special contract, and upon this point," he says, " I am left entirely to my own judgment." But none of the decided cases CITY OF PETERSBURG. Now, there is no position better established in the Court of Admiralty than its want of jurisdiction in such a case, till the jurisdiction was conferred by the Act of 1861, the 24 Vic. cap. 10. In the Mona, decided in 1840, Dr. Lushincjton said : " Looking to the authorities that have been cited, 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 cognizance of the question belongs to another jm-isdiction.' Lord Stowell decided the Sydney Cove on that ground." In the Debrisca, decided in 1848, he said : — •" The right of the mariner to sue is denied, not only iipon the ground that there has been an abandonment of the voyage, but that his engagement with the owners was in the nature of a special contract. This, I apprehend, as far as this Court is concerned, is a fatal objection. I cannot find anj' au- thority that woiild 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. The matter lies en- ■8 VICE-ADMIKALTY COUKT.. tirely and exclusively within the functions of a jury, whose functions I should usurp in adjudicating upon it." The rule was recognized also in the Irish Court of Admiralty in the case of the Enterprise, 5 Law Times Eep. N. S., 29. And in the same volume, p. 210, and in Lush., 285, is the case of the Harriet, where the counsel submitted that any agreement by a mariner dehors the ship's articles, which are appointed by the Legislature, is a special agreement. And Dr. Lushington said : (p. 221) " However differently 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, " I 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 ship — The High Court of Admiralty shall have jurisdiction over any claim by a seaijian of 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 claim 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 fifty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said Court." This section gives in express terms the jurisdiction that was formerly wanting — it extends to a claim by a seaman ■of any ship for wages earned by- him on board the ship, "whether the same be due under a special contractor otherwise," and the plaintiffs' counsel contended at the hearing, that the Act of 1861, as it gave the power to the High Court of Admiralty, gave it also by construction, or £x necessitate, to the Courts of Vice-Admiralty all over the Empire. CITY OF PETERSBURG. ' ' 9 I confess I should have had great difficulty in assuming this jurisdiction, even had the Act of 1863, the 26 Vic. cap. 24, not been passed. And, as it is, I think the question must turn entirely on the construction of the two Acts. The commission to my predecessor, it is true, dated in 1846, empowers him "to hear and determine all causes according to the civil and maritime laws and customs of our High Court of Admiralty of England, in our said Province of Nova Scotia or Acadia and maritime ports of the same and thereto adjacent whatsoever." The commission of the Hon. Henry Black, the Judge of the Admiralty at Quebec, dated in 1838, is printed in the appendix to his Reports, published in 1858, and runs in nearly the same words. And in the case of the Friends, fol. 115, he quotes these words in the commission, but accompanies them with remarks which, coming from so accomplished a jurist, are entitled to our respectful attention : " The judicial commissions of the Admiralty are of very high antiquity, and were settled long before the statutory provisions and legal decisions, whereby the jurisdiction of the Admiralty, as it was originallj' exercised, was materially abridged. But ' it is universally known,' says Lord Stowell, ' that a great part of the powers given by the terms of that commission, are totally inoperative, and that the active jurisdiction of the Admiralty stands in need of the support of continued exercise and usage (the Apollo, 1 Hagg. 312) ; and again in the case of the Atlas, he says, " This Court, except upon the subject of prize, exercises an original juris- diction, upon the grounds of authorized usage and estab- lished authority. The history of the laws of this country show full well that such authorized usage and established authority are the only supports to which this Court can trust, except in respect to the subject to which I have alluded. (2 Hagg. 55).' "In all cases of jurisdiction the Court is called upon to perform a delicate and important duty. Ak, on the one hand, it is the duty of the Judge to maintain unimpaired the jurisdiction wherewith the law has invested him ; so, on the other, he must be cautious not to assume authority 10 YICE-ADMIRALTY COUET. on matters beyond the pale of his jurisdiction. He can have no inclinations or bias either way. The power which he is to exercise is held by him in trust, and must be- maintained in its integrity, neither enlarged nor abridged, within the precise limits which the law has defined. Sir Thovias Strange has expressed with peculiar felicity th& duty of a Judge in this particular : ' It is said in many eases boni judicis est ampliare jurisdictionem. If for juris- dictionem, he read (as was always read by Lord Mansfield) justitiam, it is a noble maxim. If an object and matter of jurisdiction exists, it is indeed the part- of a Judge, so far as circumstances may admit, to administer an enlarged and amplified justice, embracing the interests of all parties- and all the bearings of the case in any other sense of the maxim. It seems to me that the strength of every juris- diction consists mainly in a temperate admeasurement of it by those in whom it is vested ; and that, so far from it being the duty boni judicis ampliare, it becomes none more than Judges to set to others in power a different example,, instead of, by overstrained constructions, and upon fanciful imaginations, to be outstepping the bounds set by their commission. Neither are we to presume that justice will not be done, though this Court, sustaining the plea, should de- cline the office of rendering it." It is true that, in the case of the Friends, he decided that the jm-isdiction claimed by the plaintiff belonged neither ta the High Court of Admiralty, nor to the A^ice-Admiralty Court. But his remarks, as we have seen, bear on the- general question of jurisdiction, and a marked distinction, if it did not previously exist, has been drawn by the recent Acts between the powers of the High Court of Admiralty and the Vice-Admiralty Courts, The practice of the two is confessedly different — that of the, Vice-Admiralty Courts still depending on the Eules made in pursuance of the 2 & 3 Will. IV., cap. 51, and that of the High Court of Admiralty having been greatly simplified and improved by the Rules of 1859, made in pursuance of the Acts of 1840 and 1854, many of which, I think, might be extended with great advantage to the practice of thia CITY OF PETERSBURG. If the practice of the two Courts is so widely different, so also, as I think, is the extent of their authority, under the recent legislation. (See the cases in Swabey's Eep., 475- 488.) This is a most interesting enquiry, and, while I regret that, in conducting it, we have lost the aids of the long experience and professional attainments of the late Judge, it has become my duty, and is essential indeed to a right determination of these suits, to trace it through all its In the case of the Australia, Swabey, 488, the Privy Council said in the year 1859, " A Vice- Admiralty Court has no more than the ordinary Admiralty jurisdiction. That jurisdiction is the jurisdiction which was possessed by Courts of Admiralty antecedent to the passing of the Statute which enlarged it in 1840." With this principle in view, let us look to the 6th section of the Act of 1861 in respect to damages to cargo imported. The first decisions upon this section were in the cases of the Ironsides, 1 Lush. 458, and the St. Cloud, 8 Law Times Eep. N. S. 55, in which latter case Dr. Lushington thus points out the necessity and advantage of this remedial clause : " The short delivery of goods brought to this country in foreign ships, or their delivery in a damaged state, the goods being the property of British merchants, was frequently a grievance — -an injury without any practical remedy ; for the owners of such vessels being resident abroad, no action could successfully be brought in a British tribunal, and to send the British merchant, who had sustained a loss, to 12 VICE-ADMIRALTY COURT. conimenee a suit before a foreign tribunal, and probably in a distant country, could not be deemed a practical and effectual remedy. And this enactment, therefore, was in- tended to operate by enabling the party aggrieved to have recourse to the arrest of the ship bringing goods delivered short or damaged in cases where, froni the absence of the defendant in foreign parts, the common law tribunals could not afford effectual redress." The evil here described and remedied, and which remedy was extended somewhat further, by the decision in the Norway, 10 Law Times Kep. N. S. 40, exists equally, though in a modified degree, in the Colonies as in the United King- dom. Why 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 same arrest at the suit of the colonial consignee, as at the suit of the home consignee in London or Liverpool ? I look, however, in vain, to the Act of 1863, although one of its objects is to extend the jurisdiction of the Vice-Admiralty Courts, and in some particulars it does extend it, for any clause resembl-ing the 6th in the Act of 1861 ; and where the Imperial Legislature has given these colonial Courts certain new powers and withheld others, it would be a bold assumption indeed to act upon the powers so withheld, as if they had been given by the very Act that withholds them. I have no doubt, therefore, that the Act of 1861 does not extend, per se, to the Vice-Admiralty Courts. The question remains, whether the words, " claims for seamen's wages," in the 10th section of the Act of 1863, were intended to cover such claims, when due under a special contract. I confess I should be glad to find that they would ; for there is little reason in withholding this pov/er, when the next clause gives the new power to adju- dicate upon a master' disbursements. It is strange, how- ever, that the words, as to special contract, in the 10th section of the Act of 1861, are not repeated in the 10th sec- tion of the Act of 1863 ; and it is clear that the proviso in the latter section, not having been repealed, does not ex- tend to us. I see that the Judge of the High Court of CITY OF PETERSBURG. 13 Admiralty has been extremely cautious in exercising juris- diction under the 10th section of the Act of 1861. In the case of the Chieftain, 8 Law Times Eep. 120, the petitioner stated his case as folLws : He stated, amongst other things, " that a sum of money was due to the master for wages, that he had ' disbursed various sums, necessary expenses, for and on behalf of the Chieftian, and had also become liable in respect of neces. saries ordered by him and supplied, in respect of wages due and owing to the crew.' " Dr. Liishington (after stating the facts of the case) said : " Th^ simple question for the decision of the Court is whe- ther or not it has jurisdiction to entertain these claims : the consequences either of allowing or of disregarding them, it is beyond the province of this Court to consider. It must be admitted that prior to the Admiralty Court Act, 1861, the Court would have had no such jurisdiction, and its j'lowers must therefore be found, if at all, within the 10th section of that Act. [The Court then read the section alluded to.] I am of opinion that there is a manifest distirictinn between the liability alleged by the plaintiff, and the meaning of the word ' disbursement,' and as the present claim does not come under the latter denomination it must be disallowed. The decision may perhaps result in a hardship to the master, though, if it were necessary to consider that ques- tion, it should be borne in mind that he has another remedy by personal action against the ship-owner. I make no order as to costs." In the case of the Edivin, 10 Law Times Eep. N. S. 658, the Judge confirmed the above case, adding that "with regard to the liability of a master beyond his dis- l)ursements — that is, the disbursements he had actually paid — however hard my decision may be, or with whatever severity it may operate on him, I have no jurisdiction to give a remedy." In the case of the Robert Poiv, 9 Law Times Eep. N. S. 237, the Judge exercised equal caution in interpreting the sixth section of the Act of 1840, and the seventh section of the Act of 1863, and in these decisions has set me an 14 VICE -ADMIRALTY COURT. example which I will do well, I think, to follow. The incli- nation of my judgment leans strongly against the enlarged construction of the tenth section of the Act of 1863, and, consequently, against the power of this Court to award sea- men's wages due upon a special contract. It was contended, however, at the argument, that the defendants could not object to the jurisdiction either on this ground or under the £50 clause in the Act of 1854, because they had filed absolute appearances, and the rule in the Admiralty Court requires, " that should a party ap- pear under protest, either objecting to the jurisdiction of the Court, or on any other ground on which he means to •contend that he is not liable to answer the action, his ap- pearance must be entered as given under protest. Now, there is no doubt that an appearance under protest is a familiar practice in the Admiralty, as appears in Coote's Admiralty Practice, 93, 176, and by the cases, 1 Dodson, 234, 3 Hagg., 364, 1 W. Eob., 143, 2 W. Eob., 224, 3 W. Eob., 109, and many others. In a note to Coote, 93, a dic- tum of Dr. Lushin.gton is quoted from the Law Magazine " that the question of jurisdiction should always be raised in the first instance, and, if it were not, he was of opinion that it was not properly before the Court." So in the case of the Blakeney, Swabey,429, the Judge held that all objections to the jurisdiction must be taken on the earliest occasion ; and the defendant having appeared, and, after the release of the ship on bail, having obtained leave to make his appear- ance under protest, the protest was overruled, " for an absolute appearance once given cannot be recalled." On these authorities I should have been inclined to hold that the appearance of the defendants, not under protest, was a waiver of any objection under the £50 clause in the Act of 1854. But, as it struck me at the argument, it was a very different thing to expect the Court to assume a jurisdiction which it did not 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 by the case of the Bilbao, 1 Lush., 152. It is there said, " that the Court CITY OF PETTRSBURG. 15 has occasionally considered questions of jurisdiction at the hearing, but always with great reluctance, and only where there might be danger of the Court proceeding without any jurisdiction at all. The Court is necessarily obliged to be careful not to exceed its jurisdiction, but it will not admit, after absolute appearance, objections of a purely technical kind." It will be seen, therefore, that where the Court is -of opinion, as in the cases now before us, that it has no jurisdiction, it will not only entertain the objection at the hearing, but is bound itself to raise it, as seems to have been the case in Swabey, 67. Of the merits of these cases I have hitherto said nothing, though they figured largely at the argument. It is of lit- tle consequence, indeed, whether the merits are or are not with the plaintiffs, if I have no j)ower to enforce them. I may say, however, that in my opinion, two of the parties at least ought to have been paid something more than they got. The claims made to the third sixty or third fortydollars, Hook upon under the evidence as untenable. Bailey admits that he received his advance outside ; and Cameron says that he received $40 at Halifax. If so, Bailey was entitled to nothing more. To Nichol, if I had the power, I would have assigned the whole or the greater part of his second sixty^ and Valley, whose evidence that he was to receive three sixties at Halifax is improbable in itself, and is besides in- consistent with Cameron's, that a man leaving Wilmington gets only half — wants $30 of that half. My decree, there- fore, would have awarded very small sums, reducing the whole question very nearly to a question of costs. As the plaintiffs have given no security, and have left the Province, the defendants, in fact, must bear their own costs, and they will probably think themselves happy in escaping on those terms. I have given more attention to these cases than their in- trinsic importance perhaps deserved ; but, this being the first time that I have sat in the Admiralty, I was desirous •of informing my own mind, and communicating the results of my enquiries to the profession, on the new and somewhat difficult questions that have grown out of this argument. 16 VICE -ADMIRALTY COURT. My decree is that the three suits be dismissed, reserving the question of costs for further consideration, should the defendants move me therein, which, as their counsel now assure me, will not be done. Judgment accordingly. Proctor for the promovents, Le Noir. Proctor for the vessel, J. X. Ritchie. THE STELLA MAEIE. (Delivered March 15, 1866.) Salvage by Passengers. — This vessel, while on ;a voyage from St. •Pierre to Halifax, stranded on Sable Island. Only a fresh breeze was blowing at the time, and she received no serious injury, but her situation was one of considerable danger, if not speedily rescued. Under the master's direction the crew and passengers landed with all their clothes, provisions, etc., but the vessel was not stripped, and the master denied any intention of abandoning her. They all left her for the night; and the following morning the six passengers, taking a boat from the Island, boarded the vessel, and without much difficulty, and at no personal risk, succeeded in floating her off; when the master and crew joining her in their own boat, they completed the voyage in safety. The passengers hav- ing taken proceedings to recover salvage, as in case of derelict, the owner of the vessel paid the sum of /40 into Court, which they refused. There was much conflicting testimony upon the points ; first, whether the master really intended to abandon or not ; and second, the merit of the salvage services rendered. Held, that the tender of ^^40 was sufficient, but that in view of the con- flict of evidence, the parties should pay their own costs. Young, J. — -This vessel, built at Sydney, C. B., is now owned and commanded by Prosper Gautier, a resident of St. Pierre, Miquelon ; and is in the employ of the French Government as a packet, carrying the mail between that place and Halifax. On her way hither, having a crew on board of nine persons in all, and twelve passengers, she ran ashore on the 25th ultimo, on Sable Island, and having been got off on the following day, by the aid of six passen- gers, she arrived here in safety, on the 1st inst., and was THE STELLA MAEIE. 17 arrested on the- 3rd in this suit. Unable to find bail, and requiring the evidence of his crew, the master and owner, after a tender of £40 stg., which was not accepted, deter- mined to wait the issue ; and the mail being detained, I felt that this was a case in which the full power of the court should be put forth for a speedy decision. In this view I have been seconded by the counsel of both parties ; and the act on petition having been completed, I have introduced, under the authority of a recent rule, a vivd voce examina- tion of all the witnesses in open court, immediately followed by the hearing : so that the case has been closely assimi- lated to, and conducted on the same principles, or nearly so, as a trial before a Judge in the Supreme Court. ' This was conducted before me by Mr. W. A. Johnston, for the promovents, and Mr. McCully, Q.C., for the defendant, on the 10th, 12th and 13th inst., 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, and am prepared to give judgment. Eleven witnesses were examined in all, for the promo- vents, five of themselves and a passenger not claiming to be a salvor ; and for the defence, the master, first and sec- ond mate, and two of the crew. The evidence of Mr. Dodd, the Governor of the Island, or of his men, could not be pro- cured. The testimony is full of contradictions, arising, partly, from the plaintiffs speaking nothing but English, and the defendants nothing but French, and partly from other causes, which persons conversant with Courts of Jus- tice, will readily apprehend. A minute examination and balancing of these contradictions would be 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 morning of Sunday, the 25th, when she was going at the rate of 8 or 9 knots under single reef and with a fresh breeze. She was on one of the shifting sand-banks, of which the island is mainly composed ; and while she is re- presented by the plaintiffs as having struck heavily and V-A.R. 2 18 VICE-ADMIRALTY COURT. 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 serious injury. No repairs have been since had upon her, and the owner and crew are ready to sail in her as she is to St. Pierre. But a stranding on Sable Island is a dangerous thing — few vessels escape that contact with impunity ; 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 to 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 obtain 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 he 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, " itis 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 Eeports, 339, " When the owner, or the master and crew who represent him, leave a vessel temporarily, without any intention of a final aFan- donment, but with the intent to return and resume posses- sion, she is not _considered as a legal derelict, nor is the THE STELLA MAEIE. 19 Tight of possession lost by such temporary absence for the purpose of obtaining assistance, although no individual may he remaining on board for the purpose of retaining the pos- session. Property is not, in the sense of the law, derelict, xind the possession left vacant for the finder until the spes reciiperandi 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 Avithout 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 Mclsaac, 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. 