There may be one or two exceptions to this statement. In the old commissions to the judges in England jurisdiction was given to entertain a suit on a bill of exchange or a policy of insurance. The Scotch Admiralty had, and apparently still has, jurisdiction in cases of bills of exchange. The French Code of 1681 had jurisdiction of policies of insurance and all contracts relating to marine commerce, and Story, J., in De Lovio v. Boit, held that in the United States the Admiralty had jurisdiction of a policy of insurance. Lord Esher, however, held in a very recent case that, as respects policies of insurance, "it is undoubted that no such jurisdiction has ever been attempted in England” (1).

The enlargement of jurisdiction was granted by the legislature to remedy a grievance, and in consequence the Privy Council holds that such legislation ought to be construed liberally so as to afford as great relief as the fair meaning of the language will permit (2). We have ample evidence of this purpose on the part of the judges in the judicial decisions. It is only necessary to call the reader's attention to the clauses of the statutes of 1840 and of 1861 in confirmation of this statement. By 3 & 4 Vict. c. 65, s. 6, it is enacted that the Admiralty shall have jurisdiction to decide all claims and demands whatsover in the nature of damage received by any ship or sea-going vessel whether such ship is within the body of a county or upon the high seas at the time when the damage was received, and by 24 Vict. c. 10, sec. 7, the High Court of Admiralty is given jurisdiction over any claim for damage done by any ship.

Reference to the decided cases, beginning with The Robert Pow (3), decided by Dr. Lushington in 1863, and ending with the Mersey Docks and Harbor Board v. Turner (4), will show the transition of judicial opinion from a strict and narrow construction to a broad and liberal interpretation of these remedial statutes. It was held in The Robert Pow that the Court could not entertain a claim for damage against a tug occasioned to the tow by the negligence of the tug, if the damage arose, not by collision, but by the vessel towed taking ground. It is not necessary in this place (5) to refer at length to the decided cases. But in collision cases the Court, by reason of wise and liberal interpretation, has now jurisdiction to entertain a

(1) Reg. v. Judge City of London Court (1892), 1 Q. B. 293.

(2) The Pieve Superiore, L. R. 5 P. C. 484.

(3) Br. & Lush. 99.

(4) (1893) A. C. 468, s. c. 9 Times, L. R. 624.

(5) See note to The Enrique, post, p. 161, for citation of cases.

suit for damage done by collision between two vessels; for damage done by a ship to things other than a ship, as, for instance, an injury to a breakwater (1), a telegraph cable (2), a railway carriage (3); for damage done to a ship by a barge, a pier, dock wall (4), or other object, through the negligence of those having it in charge; and for damage done to a person. And in the case of The Industrie (5) the jurisdiction was sustained, where the plaintiff's vessel, in taking the necessary steps to avoid a collision, took the ground and drove. against the town wall of Hartlepool, sustaining damage, and causing damage to the town wall. These illustrations, which might be largely multiplied, will show the tendency of the Courts in interpreting and giving effect to the statutes enlarging the Admiralty jurisdiction.

It has been pointed out above that the Canadian Courts of Admiralty are required by statute to have the same regard to international law and the comity of nations as the High Court in England.

A question of much importance and some intricacy, known as the law of the Flag, has of late years received considerable judicial attention. Much discussion has from time to time taken place as to whether there is a general maritime law, binding upon the maritime Courts of all nations. Judge Duer (6) says: "If the law merchant is, indeed, the law of the land, and if it consist in the general custom of merchants—that is, in the rules by which merchants not in one port or country, but throughout the great family of the nations, which commerce has linked together, are usually governed when satisfactory evidence that a particular rule is thus sanctioned is adduced, it ought surely to control the judgment of the Court." Another writer (7), quoted by Duer, says: "The ordinances of other countries are not, it is true, in force in England, but they are of authority, at least, as expressing the usage of other countries, upon a contract which is presumed to be governed by general rules that are understood to constitute a branch of public law." Commenting upon this statement, Duer (8) says: "It is manifest that no real difference can exist in respect to their authority between foreign ordinances and foreign judgments, and it would be unreasonable to suppose that Mr. Marshall meant to be otherwise understood. It would be absurd to admit the authority of a

(1) The Excelsior, L. R. 2 A. & E.

268.

(2) The Clara Killam, L. R. 3 A. & E. 161.

(3) The Teddington, post, p. 45.

(4) Mersey Docks and Harbor Board

v. Turner (1893), A. C. 468.

(5) L. R. 3 A. & E. 303.

(6) 1 Mar. Ins., p. 5.

(7) 1 Marshall, p. 20.

(8) at p. 7.

law, and deny that of its judicial interpretation by the tribunals of the country in which it prevails, or to affirm that evidence of a usage is not as clearly to be deduced from the one as the other. The ordinance and the decision stand on the same ground. Both are evidence of a law: In the one case enacted, in the other declared ; and in both cases, the existence of a usage in correspondence with a law, may be presumed. Neither is in force. Both are of authority. Neither claims our implicit submission. Both, when they convince the reason, oblige the conscience. Valent ratione, non jure." Sir Robert Phillimore, in his learned work on International Law (1), says that the High Court of Admiralty and the Privy Council were careful during the existence of the old law, and before the establishment of the present International Rules, never to apply to a foreign vessel the rules of navigation prescribed by statute for British vessels. In all cases of collision upon the high sea or in foreign waters, between a foreign and British vessel, or between two foreign vessels, the wrong-doer, whether he were foreign or English subject, was ascertained by a reference to the old rule of the sea, founded on the principles of general maritime law, and not to the rule prescribed by the English statute. Cases of collision, like cases of salvage, are considered as belonging to the jus gentium." This distinguished author, sitting as Judge of the High Court of Admiralty in The Patria (2), says: "I have been much pressed by counsel for the plaintiffs to pronounce that the decision of Lloyd v. Guibert is not binding on the Admiralty Court, and also that the judgment errs in ascribing to the Admiralty Court the doctrine that the general maritime law is not an universal maritime law, binding upon all nations in time of peace, but a law which is to be derived from the practice and decisions of English tribunals. If it were necessary to decide the latter point (with all respect for the high authority of the tribunal which delivered the judgment), I should have hesitated a long while before I assented to the position that there was not a general maritime law, which, according to the comity of nations, was administered in the English as well as in the foreign Courts of Admiralty. I should have remembered and endeavored to apply the law upon which Lord Stowell, in The Gratitudine (3), founds the authority of the master when acting as necessary agent for the owner of the cargo, and the language of Lord Tenterden, in Simonds v. White (4), as to the doctrine of average. The principle of average,' says that high authority, 'is of very

(1) 4 Phil. Inter. Law, 2nd ed. 625. (2) L. R. 3 A. & E., p. 461.

(3) 3 C. Rob. 240.

(4) 2 B. & C., p. 811.

ancient date, and of universal reception among commercial nations. The obligation to contribute, therefore, depends not so much upon the terms of any particular instrument as upon a general rule of maritime law.' I should have referred to the judgment of Story (1) as to the ancient laws, customs, and usages of the sea, and have considered whether there was not a general maritime law founded upon them, and the recognized exposition of them wholly distinct from the common law of England, as the law by which, in cases of collision, the Admiralty Court finds both parties to blame, is distinct from that of the Common Law Court, which, upon its own principles, refuses to allow any such verdict to be given."

While it may not be successfully contended that there exists any general maritime law of universal application and binding upon the Courts of all nations, yet the Courts of all countries will follow those old codes in so far as founded upon justice and equity, and when not repugnant to the usage or law of the particular country. This doctrine has been clearly and fully laid down by the Supreme Court of the United States (2). The Court says "that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. In this respect it is like international law or the laws of war, which have the effect of law in no country any further than they are accepted and received as such, or, like the case of the civil law which forms the basis of most European laws, but which has the force of law in each state only so far as it is adopted therein and with such modifications as are deemed expedient." And further in the same case: "Each state adopts the maritime law, not as a code having any independent or inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption it would not be law. And thus it happens that from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law, which is thus received by these nations in common, comes to be the common maritime law of the world."

In Lloyd v. Guibert (3), in which it was contended that the contract of affreightment should be determined by the rules of the general maritime law, Willes, J., delivering the judgment of the

(1) De Lovio v. Boit, 2 Gall. 398.
(2) The Lottawana, 21 Wall. p. 572.

(3) L. R. 1 Q. B. 115.

Court, said: "We can understand this term in the sense of the general maritime law as administered in the English Courts, that being in truth nothing more than English law, though dealt out in somewhat different measures in the Common Law and Chancery Courts, and in the peculiar jurisdiction of the Admiralty; but as to any other general maritime law by which we ought to adjudicate upon the rights of a subject of a country which, by the hypothesis, does not recognize its alleged rule. We were not informed what might be its authority, its limits, or its sanction." A writer (1) of acknowledged authority, commenting on this judgment, says: "Undoubtedly, however, there was a time when the lex mercatoria, though the law of England, was also the law of other nations, and was the law of England because it was the law of other nations." We have also the authority of Lord Mansfield, "That the maritime law is not the law of any particular country." Admitting, however, as the authorities now declare, that each nation is governed by its own system of maritime law, difficulties are very apt to arise in contracts of affreightment, bottomry, and other transactions arising out of modern commerce, depending upon the nationality of the carrying ship, the law of the place of performance, and the law of the place where the contract was made.

It may be considered now as settled law that in the absence of any express indication of intention as between the parties to a contract of affreightment, there is a strong presumption in favor of the law of the ship's flag. This is the doctrine laid down in Lloyd v. Guibert. In this case the plaintiff, a British subject, at a Danish West India port, chartered a French ship to carry a cargo from Hayti to Havre, London or Liverpool. The vessel sailed with the cargo for Liverpool, but on the voyage sustained damage, and had to put into Fayal, a Portugese port, for repairs. There the master properly put a bottomry bond on ship, freight and cargo. After the arrival of the ship at Liverpool the holder of the bond proceeded against the ship, freight and cargo in the Admiralty. The ship and freight were insufficient to satisfy the bond, and the deficiency fell on the plaintiff, as owner of the cargo, and he sought indemnity against the French shipowners. The defendants, the shipowners, gave up ship and freight to the shipper, and by the law of France such abandonment relieved the shipowners from further liability. Such abandonment would not, however, have absolved from liability a British shipowner. The Court held that the parties in making

(1) Smith's Mer. Law (10 ed.), Introduction lxv.