ÆäÀÌÁö À̹ÌÁö
PDF
ePub

never exercised a general jurisdiction over damage, but over causes of collision only"; and in The Sarah, Lush. 549 (1862), the same learned judge held that the Court of Admiralty has original jurisdiction over torts committed on the high seas, and therefore over a collision on the high seas, when the vessel doing the damage was a keel, or vessel without masts, usually propelled by a pole. It is difficult to reconcile these judgments. In The Uhla, L. R. 2 A. & E. 29 (1867), it was held that the Court had jurisdiction in a case of damage done by a ship to a break water. The case of The Excelsior, L. R. 2 A. & E. 268 (1868), was where a vessel, against the will of the master, was moved by directions of a dock master to another part of the harbor-from the eastern to the western pier. While at the western pier a gale sprung up, the vessel broke from her moorings, and did considerable damage to the wharf. It was

held that the vessel was liable for the damage. It was also held in The Energy, L. R. 3 A. & E. 48 (1870), that the Court has jurisdiction to entertain a suit instituted by the owners of a vessel against a steam-tug engaged to tow the vessel for negligently towing her so as to cause her to come into collision with and do damage to another vessel. In The Industrie, L. R. 3

A. & E. 303 (1871), there was no collision between the two vessels at all, and yet the offending vessel was held liable for the damage. The plaintiffs' vessel was entering the harbor of Hartlepool. The Industrie was, through the negligence of those on board of her, lying across the channel or fair-way. The plaintiffs' vessel, in taking necessary measures to avoid a collision, took the ground, and drove against the town wall and sustained damage, and also did damage to the wall. It was held the Court had jurisdiction. See also The Chase, Young's Ad. Dec. 113 (1872). A steamship which sank another craft by the swell raised by her excessive speed was held liable for damThe Batavier, 1 Spinks, 378; s. c. 9 Moo. P. C. 286.

ages.

A case of much importance on Admiralty jurisdiction has recently been decided by the House of Lords. The plaintiffs brought an action in personam in the Admiralty Division of the High Court against a Dock Company for injuries to the amount of £221 4s. 6d. to their steamship, by a collision with the dock wall, occasioned by the negligence of the Dock Company. The Court found the Company liable for the damage, but refused the plaintiffs their costs on the ground that the action ought to have been brought in the County Court exercising

1888

THE ENRIQUE.

1888

THE

Admiralty jurisdiction where the cause of action arose; The Zeta ENRIQUE. (1891), P. 216. The case was taken to the Court of Appeal, and is reported as Turner v. Mersey Docks and Harbor Board, (1892), P. 285. The Court of Appeal, Lord Esher, M. R., and Lopes, L. J. (Fry, L. J., dissenting), reversed the decision of the President, holding that the costs should not be disallowed on the ground assigned in the Court below, as neither the Admiralty Court nor the Admiralty side of a County Court had jurisdiction to entertain the action, which could only have been tried by the judge of that division sitting as a judge of the High Court. The effect of this judgment was to largely restrict the jurisdiction of the Admiralty Court if it had remained unreversed. Leave was given to appeal to the House of Lords, and in August, 1893, the judgment of the Lords reversed the decision of the Court of Appeal and restored that of the President; Mersey Docks and Harbor Board v. Turner, (1893), A. C. 468; s. c. 9 Times L. R. 624. Lord Herschell, L. C., in his judgment, exhaustively examines the cases and upholds the jurisdiction of the Admiralty Court. After pointing out the conflicting statements of the law, as laid down by Dr. Lushington in The Ida, The Robert Pow, and The Sarah, the Lord Chancellor says,

p. 481: "If I am to estimate the relative weight of these conflicting statements of the law, it seems to me that the view expressed in the late case of The Sarah is more important and authoritative. It was the ground, and the sole ground, upon which the Court assumed jurisdiction and rejected the protest. It may not have been necessary to go the length of asserting jurisdiction in the case of damage caused by all torts committed upon the high seas, but it was essential that the jurisdiction should cover something more than damage caused by collision between ships. My Lords, when I turn to prior authorities (and I have examined every one which the researches of the learned counsel brought to the notice of the House), I can find no authority which supports the limitation of the jurisdiction of the Court of Admiralty laid down in the case of The Ida and The Robert Pow." In discussing the meaning to be given to the word "damage," he further said, p. 485: "It is not necessary in the present case to determine the bounds of the jurisdiction exercisable by the Court of Admiralty as regards torts committed on the high seas. It is enough to say that I cannot regard it as established that in the year 1840 its jurisdiction in the case of damage received by a ship was limited to damage received by collision with an

other vessel. I can find. no ground, either on principle or authority, for such a limitation, nor is it necessary to decide whether the Court of Admiralty possessed jurisdiction in a case similar to the present prior to the Act of 1840, supposing the damage had been sustained upon the high seas. For the reasons I have stated, I have come to the conclusion that it is impossible to maintain the proposition that the word 'damage' was, according to the well understood meaning of the phrase in the Admiralty Court, confined to damage due to collision between two ships. This proposition was the sole justification alleged, and I can see no other, for giving to the language of that statute the very restricted interpretation adopted by Dr. Lushington. Even if its operation, when the words are construed according to their natural meaning, be to enlarge the jurisdiction of the Court of Admiralty in the case of damage received by a ship upon the high seas, there is nothing in the frame of the enactment to indicate that this was not the intention of the Legislature, though no doubt its chief object may have been to extend the jurisdiction which existed in the case of damage received by ships upon the high seas to damage received in the body of a county." In the case of The Queen v. The Judge of

1888

THE

the City of London Court (1892), 1 Q. B. 273, it was held that the High Court of Admiralty had ENRIQUE. no jurisdiction to entertain an action in personam against a pilot in respect of a collision between two ships on the high seas caused by his negligence. In this case Lord Esher, M. R., delivered a masterly judgment reviewing the jurisdiction of the Court, dissenting from the celebrated judgment of Story, J., in De Lovio v. Boit, 2 Gall. 398, and in large measure repudiating the existence of the enlarged jurisdiction claimed for the Court. Lord Herschell, in continuance of his judgment in the Lords, p. 486, says: "I do not think it necessary to discuss the case of The Queen v. The Judge of the City of London Court (1892), 1 Q. B. 273, or other cases in which it was held that the Court of Admiralty had not jurisdiction to entertain a suit for damage caused by the wrongful act of the pilot. In that and the other cases relating to suits instituted in respect of the negligence of pilots, stress was laid on certain considerations which do not touch the case with which your Lordships have to deal, and I agree with Lord Justice Fry in thinking that the decision in The Queen v. The Judge of the City of London Court was not

[blocks in formation]

1888

THE

have expressed conflict with some of the broader grounds ENRIQUE. upon which the Master of the Rolls based his judgment in that case, and the fact that I am thus differing from that learned judge has made me consider the matter all the more anxiously. I ought to notice one argument which was regarded as of weight by two of the learned judges in the Court below. It was said that no disaster similar to that which gave rise to the present action could have occurred on the high seas, and that therefore the Court of Admiralty could not have had jurisdiction in such a case, and has not now jurisdiction by virtue of the statute of 1840, when the occurrence takes place within the body of a county. I am unable to entertain this view. I think that a vessel might, by the negligence of the owner of a fixed object, come into collision with it, and thus sustain damage. Such cases are quite conceivable, although, of course, not likely frequently to occur. The argument that according to the rule of the Court of Admiralty, where both parties are in fault the damage is divided, and that this rule could not well be applied where a vessel is damaged by collision with a dock wall, appears to have weighed a good deal with the Court below. But it appears to me that the difficulty would be precisely the same where the

damage was caused by the ship and not received by it, as, for example, in the case of The Uhla, L. R. 2 A. & E. 29 n., and others of the cases cited, and yet the suggested difficulty has not prevented the numerous decisions to which I have alluded in favor of a construction of the Act of 1861 similar to that now contended for in the case of the Act of 1840. The true answer probably is, and it would be of equal weight in both cases, that the rule referred to has never been applied except in the case of a collision between two ships.” It is submitted The Robert Pow must now be considered overruled. The judgment of the House of Lords in Mersey Docks and Harbor Board v. Turner, supra, has also, it is submitted, established that the Admiralty Court has jurisdiction to entertain a suit, (1) for damage by collision between two vessels, (2) for damage done by a ship to persons and things other than ships, (3) for damage done to a ship by a barge, pier, dock wall, or other object, through the negligence of those having the same in charge. In Monaghan v. Horn, 7 Can. S. C. R. 409 (1882), on appeal from the Maritime Court of Ontario, it was held (Fournier and Taschereau, JJ., dissenting), that the Maritime Court of Ontario has no jurisdiction apart from R. S. 0.c. 128 (re-enacting in that Province

Lord Campbell's Act, 9 & 10 Vict., c. 93), in an action for personal injury resulting in death, and therefore the appellant had no locus standi, not having brought the action as the personal representative of the child. The action was in rem against the steamboat, The Garland, by whose negligence the death was caused. It was further held by a majority of the Court reversing the Maritime Court of Ontario that the Court had authority to entertain the suit, as such jurisdiction was held by the High Court of Admiralty in England. This case was decided prior to The Vera Cruz, 10 App. Cas. 59 (1884), and so far as it is at variance with the latter case must be considered overruled. In the case of The Vera Cruz it was held that an action in rem did not lie under Lord Campbell's Act. In the latter case the suit was begun in the name of the administratrix of the deceased. But in The Bernina, 13 App. Cas. 1, the Court upheld an action in personam against the owners for damages for loss of life. A collision took place between two steamers, the Bernina and the Bushire, which was occasioned by the fault of the masters and crews of both vessels. One of the crew and a passenger on the Bushire were drowned, neither of whom had anything to do with the negligent navigation of

A col

the vessels. The representatives of the deceased, having brought an action in personam against the owners of the Bernina under Lord Campbell's Act, it was held the deceased persons were not identified with those navigating the Bushire in respect of the negligent navigation; that the action was maintainable; and that the whole damages were recoverable, the Admiralty rule as to half damages not applying under Lord Campbell's Act.

AMERICAN CASES.

The Supreme Court of the United States, in The Max Morris, 137 U. S. 1, decided that where a person is injured on a vessel while in the employ of a stevedore, putting coal on board, through a marine tort arising partly from the negligence of the officers of the vessel, and partly from his own negligence, he is entitled to recover in Admiralty, but whether the decree should be for exactly onehalf of the damages sustained, or for a greater or less sum than one-half, in the discretion of the Court, was left undecided, the special case not requiring the decision of that point. In Leathers v. Blessing, 105 U.S. 626, it was held that the term "torts," when used in reference to Admiralty jurisdiction, embraces not only wrongs committed by direct force, but such as are suffered in consequence of negli

1888

THE ENRIQUE.

« ÀÌÀü°è¼Ó »