CHAP. II.

GENERAL PART.

A GENERAL principle upon which the jurisdiction of the Admiralty, as at present exercised, may be determined, cannot be laid down. But its jurisdiction may be said to rest generally on the following considerations: first, the nature of the property to be adjudicated upon; secondly, the question to be decided; thirdly, the origin of the cause; and fourthly, the locality; and these must be of the sea to give the Admiralty a jurisdiction. But as the several questions or causes which belong to its jurisdiction are subject, in some instances, to one of these considerations as the point by which the jurisdiction may be determined, and in other instances to all, no more precise rule can be given with safety. It may be observed as a general rule, but bearing in mind that it is, perhaps, more liable to exceptions than general rules usually are, that in all cases of contract or injury of a maritime nature for the performance or reparation of which a ship, and its freight, &c., are liable, the Admiralty Court can by the exercise of its authority over such subject, afford a prompt and direct relief-secure to the plaintiff, for the proceeding is against the ship itself, which is, as it were, brought into court, and adjudicated upon; a relief without hardship or inconvenience to the defendant, for the ship can be as immediately released upon sufficient bail being given in its stead. In some way or another there is usually enough before the Admiralty Court to answer the action, for the foundation

CHAP. II. upon, and the remedy enforced by it is, usually, against

the property.

*

But without further generalizing upon this subject, it is conceived to be more in accordance with the practical purpose of this work to proceed at once to the different subjects over which the Admiralty has jurisdiction, and there the reader may discover for himself the principles upon which such jurisdiction is retained under the several subjects as they are brought to his notice, and thus at least a useless repetition will be obviated. The subjects over which the Court of Admiralty has jurisdiction may be divided into causes of 1. Possession.

2. Bottomry; and therein of causes of action for repairs, necessaries, &c.

3. Wages.

4. Damage.

5. Salvage, towage, &c.

And lastly will be discussed the condemnation of Admiralty Droits, &c., and some of the more general powers of that court, as well those now in force as those which are obsolete; such of the appellate jurisdiction of that court as has not been removed, &c.

But before leaving this general part, it should be observed that the jurisdiction exercised by the Admiralty Court is of a twofold nature; in fact, the style of the court is changed in reference to such nature respectively, the one being the court in which all controversies relating to the maritime contracts, injuries, services, &c., above mentioned, are decided, and called the Instance Court: the other, in which cases of

* Although in many instances it is necessary that a suit should be instituted against a party personally in the Admiralty, the reasons why such a course of proceeding is seldom resorted to is obvious. See the Volant, 1 W. Robinson's Admiralty Reports,

disputed capture, and seizure of a maritime nature, are CHAP. II. determined, and called the Prize Court: many of the subjects which are cognizable in the Instance Court can also be determined in the other courts at Westminster, &c., there being, to some extent, a concurrent jurisdiction; but as regards the Prize Court, it has exclusive jurisdiction, the question of prize or no prize being alone determinable there. It is proposed in the present work to keep these two subjects perfectly distinct; and inasmuch as (at least in these times of peace) the Instance deserves more consideration than the Prize Court, we shall commence with the former, and treat of its jurisdiction under the several heads above given.

"

It should be further observed in this place that the jurisdiction exercised by the Admiralty Court is an equitable as well as a legal jurisdiction; and whether, therefore, the relief claimed from the court is either at law or in equity, a claimant is equally entitled to the authority of the court in such behalf; and if a court of equity could relieve and a court of law could not, it would be the duty of the Court of Admiralty to exercise its equitable jurisdiction." This Court," said Lord Stowell, certainly does not claim the character of a court of general equity, but it is bound by its commission and constitution to determine the cases submitted to its cognizance upon equitable principles, and according to the rules of natural justice." † But to the expression, that the jurisdiction of the Admiralty Court is equitable, must be added the following qualification, extracted from a very recent case before the Judicial Committee of the Privy Council: "It is true that, in the discussion of cases properly within the jurisdiction

* See the Harriette, 1 W. Robinson's Admiralty Reports, 182. "The Court of Admiralty exercises a wide equitable jurisdiction." Per Cur. Jacob, 4 Robinson's Admiralty Reports, 250.

CHAP. II.

of the High Court of Admiralty, equitable considerations ought to have their weight; but it does not thence follow that the Court of Admiralty has jurisdiction to do all that the courts of equity may do in suits instituted by persons suing either for themselves or on behalf of themselves and others, for the administration of assets or the distribution of a common fund, in which several persons are interested, or upon which they have claims.” *

This case

* Per Lord Langdale, in the Saracen, 11 Jurist. will be more minutely mentioned in that part of this treatise relating to Damage. Vide infra.

CHAP. III.

OF CAUSES OF POSSESSION.

THE encouragement of navigation and the property and employment of ships have been so much the favourite objects of the laws and customs of this country that such property has been distinguished from other personal property in this important particular; namely, that where such property is held (as it usually is) among part-owners who cannot agree respecting the employments of their property, the Admiralty Court has a power of interference in their disputes, and by forcing them to a common consent for their common benefit, and for the benefit of the public, this species of property can generally be enjoyed by them to the advantage of all. Therefore upon any probable design, that Court

* The following beautiful remark, with regard to ships as distinguished from other personal property, is from the pen of Lord Tenterden :-"A personal chattel, vested in several distinct proprietors, cannot possibly be enjoyed advantageously by all, without a common consent and agreement among them: to regulate their enjoyment in case of disagreement is one of the hardest tasks of legislation, and it is not without wisdom that the law of England in general declines to interfere in their disputes, leaving it to themselves, either to enjoy their common property by agreement, or to suffer it to remain unenjoyed, or perish by their dissension; as the best method of forcing them to a common consent, for their common benefit. But of ships 'which are built to plough the sea, and not to lie by the wall,' commercial nations consider the actual employment as a matter not merely of private advantage to their owners, but of public benefit to the state, and therefore have laid down certain positive rules in order to favour this employment and to prevent the obstinacy of some of the part-owners from condemning the ship to rot in idleness." - Abbott's Shipping, 98.