1860. and the master of the said barque therefore declined so to do. That the masters of the said schooner and barque, accompanied _January 12. by their respective pilots, accordingly on the same day went on shore and represented the facts to the captain of the said port, who decided that the said schooner the Ida had no right to move till the said barque Barbara Innes had discharged her cargo. That, notwithstanding such decision, the said D. J. Backhaus, the master of the said schooner, returned to his ship, and immediately afterwards, between three and four o'clock of the same day, and during the absence of the master of the said. barque, jumped on board the said barque, and himself, wilfully and without any authority so to do, cast off the moorings by which the said barque was made fast to the quay, whereby the said barque the Barbara Innes swung off into the stream and across the current, and thereby unavoidably sunk a barge or lighter, together with thirteen casks of sugar, being a portion of the said cargo of the said barque, and the property of the said Messrs. Argenti, and which had just been previously discharged from the said barque the Barbara Innes into the said barge. or lighter. That the said thirteen casks of sugar were in consequence thereof entirely lost, and such loss arose through the wilful and unseamanlike act of the said master of the said schooner the Ida. Wherefore, &c." The admission of this petition was now opposed. Twiss, Q.C., and Pritchard, against the petition.-The petition shows that the Court has no jurisdiction. Firstly, ratione loci; the locus in quo is Ibraila, 115 miles from the Black Sea, and in the fresh waters of the Danube, and the Court has jurisdiction over tidal waters only. Ibraila is not a port in that sense of the term which may give Admiralty jurisdiction; it is no more a port than Cologne or Belgrade. Secondly, ratione delicti; the act complained of is purely the personal act of the master. The ship proceeded against was in no degree instrumental to the injury; and it would be against the principle on which the actio in rem in causes of maritime tort is founded to make the ship liable. Thirdly. The act done was not within the scope of the ordinary duties of the master, it was tortious and wilful from the beginning; and the owners therefore are not liable. This rule is well settled in the Courts of Common Law; Macmanus v. Crickett (a); Bowcher v. Noidstrom (b); Mitchell v. Crasweller (c); Coleman v. Riches (d); and was adopted by the 1860. January 12. Judgment. Local jurisdic tion of the Court. Court has no jurisdiction in a foreign river, the cause being between foreigners. Court of Admiralty in the well considered judgment of the Tristram, in support of the petition.-The objections come too late, for the defendants have appeared absolutely. The Court will not assume that the tide does not reach Ibraila, and that Ibraila is without the jurisdiction of the Court. The Imperial Gazetteer makes Ibraila only ninety-nine miles from the mouth of the river. The act was done in behalf of the ship, and in the service of the ship; and it does not appear that it was an illegal act, for non constat that the opinion of the captain of the port was good in law. The master is part of the ship, and his act in the ship's service makes the owners liable, and in this Court the ship; Croft v. Allison (b). DR. LUSHINGTON:-This action is brought by Turkish subjects against a ship owned by Danish subjects, for an alleged damage done in Ibraila, in the river Danube. The warrant for the arrest of the ship was issued from the Registry, with a caution that it was at the risk of the party taking it out, and an appearance was given to the action absolutely. It is usually convenient to take objection to the jurisdiction at the earliest moment, and the Court is unwilling to entertain petty objections to an act on petition; but the defendant may delay raising an important objection to the jurisdiction until the facts are stated in the act on petition. The objections to the jurisdiction in this case were well put by Dr. Twiss, as 1, ratione loci; 2, ratione delicti. Formerly Semble, The the local limits of the Admiralty jurisdiction were very doubtful, partly, perhaps, because the distinction between jurisdiction given by the law maritime and jurisdiction given by municipal law was not clearly apprehended. And when I first came into the profession Lord Stowell was very averse to exercising any instance jurisdiction over foreigners; the Court, he said, was not hungry after jurisdiction; Two Friends (c), referred to by me in the Golubchick (d). But in his time the number of instance causes was very small, especially collision causes, which have so greatly multiplied in recent times. I shall not now attempt to define where the Admiralty jurisdiction in foreign rivers begins or ends, and where municipal jurisdiction obtains exclusively; the Court of Criminal Appeal has lately unanimously held that the whole of the Bristol Channel is within the counties by the shores of which its parts are respectively bounded, R. v. Cunningham (a): it is enough to say that this Court has not taken. cognizance of torts in any foreign river, except in Turkish waters, where special provisions are applicable; that the Court is not anxious to extend its jurisdiction over foreign waters; that this cause is between foreigners, and that the jurisdiction claimed is beyond any yet exercised by the Court. These are reasons which make the Court very unwilling to affirm its jurisdiction over the present case. 1860. January 12. The act sued n was a wilful act out his owner's The Court, however, is still further indisposed to exercise jurisdiction on account of the peculiar nature of the act for which the plaintiffs are now trying to render the defendant's of the proper province of the ship liable. The Court, it must be remembered, has never exer- master, and cised a general jurisdiction over damage, but over causes of gave no lien on collision only; and this is no collision in the proper sense of the ship. term. The ship proceeded against had nothing to do with the damage; nothing actually, nor even constructively, for the act of the master I consider to be wholly unwarrantable and out of the scope of his duty; he might as well have attempted to open a dock. And this, again, if in such a case-the case of a tort committed by one foreigner upon another in a foreign portthe law laid down in the Druid is to prevail, would, on another ground, disintitle the plaintiffs from recovering against the defendants or their property. This is not, however, exactly the case of the Druid, for there the tort was committed in the Mersey, and the Court was anxious to conform its decision to the rules adopted in the Courts of Common Law. But however this may be, in a matter like the present the Court looks to precedent; and, taking all the circumstances of this case together, I am of opinion that there is no precedent that would justify the Court exercising jurisdiction in this case. I have gone further than any of my predecessors in enlarging the jurisdiction of the Court, because the commercial and maritime world has undergone such great changes; but I must not extend my jurisdiction beyond what circumstances render necessary. I Petition disdismiss this petition with costs. Wills, proctor for the Barbara Innes. Pritchard, proctor for the Ida. missed, with costs. (a) 28 L. J. M. C. 66. 1860. January 19. THE FOYLE. Collision-Pleading-Admission by Crew. In an action of collision, brought by the owners of a vessel and the crew for their private effects, admissions by the crew as to the circumstances of the collision cannot be pleaded. COLL OLLISION. Action brought by the owners of the brig Campbell and the cargo laden therein, and the master and crew of the said brig for the loss of their money, clothes, and private effects. Motion to strike out the following article from the Foyle's allegation, "That shortly after the collision, certain of the crew of the Campbell, whilst on board the Foyle, admitted to William Mitchenson, one of the passengers on board the Foyle, that the collision was entirely owing to the fault of the Campbell, by starboarding her helm, and afterwards, when it was too late, putting it hard aport." Twiss, Q.C., and V. Lushington, in support of the motion. The Court, without hearing them, called on Tristram to support the article. Tristram.-Admissions by seamen may not generally be evidence against the owners, but here the seamen are parties to the action; they are plaintiffs in the cause. DR. LUSHINGTON :-I cannot think that a sufficient reason for admitting this article. If we allow admissions by the crew to be evidence in cases of collision, we shall have conversations in pot-houses pleaded, counter-pleaded, proved and disproved, and the expense of parties doubled; and all to no purpose. We have never allowed such admissions here, and I do not intend to allow them. The article must be struck out. Bathurst, proctor for the Campbell. Brooks, proctor for the Foyle. THE JOHN. Salvage-Tender-Certificate for Costs-17 & 18 Vict. c. 104, s. 460. If in an action for salvage services rendered in the United Kingdom a tender under 2004., "with such costs (if any) as may be due by law" for the services rendered, is accepted, the Court will not certify for costs under the 460th section of the Merchant Shipping Act, except for special cause shown. Removal of the ship salved from Yarmouth to London without mala fides, will not, if the salvors had opportunity at Yarmouth to have the dispute determined by the local justices, suffice to induce the Court to certify. THIS THIS was a motion praying the Court to certify under the 460th section of the Merchant Shipping Act, 1854, for costs in an action of salvage. The service was rendered at Yarmouth on the 25th October, 1859. A heavy gale of wind was blowing, and the salvors, who were Yarmouth beachmen, boarded the brig John, then lying close off the flats, and assisted her in making to a safe anchorage. On the 10th November the salvors entered an action in the Admiralty Court, and arrested the brig in the port of London. An appearance for the owners was then entered and bail given in 3501., and the act on petition brought in for the salvors. On the 8th December, a tender was made of 1201., "together with such costs (if any) as may be due by law in full for the services rendered." This tender was accepted on behalf of the salvors. The Court was now moved to certify, as required by the 460th section of the Merchant Shipping Act, 1854, that the case was a fit one to be tried in the Superior Court. The section is as follows: - "Disputes with respect to salvage arising within the boundaries of the Cinque Ports shall be determined in the manner in which the same have hitherto been determined; but whenever any dispute arises elsewhere in the United Kingdom between the owners of any such ship, boat, cargo, apparel, or wreck as aforesaid, and the salvors, as to the amount of salvage, and the parties to the dispute cannot agree as to the settlement thereof by arbitration or otherwise, Then if the sum claimed does not exceed two hundred pounds, Such dispute shall be referred to the arbitration of any two justices of the peace resident as follows (that is to say): 1860. January 19. |