A TREATISE ON THE JURISDICTION AND PRACTICE OF THE Admiralty Division OF THE HIGH COURT OF JUSTICE AND ON APPEALS THEREFROM. INTRODUCTION. The origin of the THE Court of Admiralty was originally, as its name implies, actually the Court of the Lord High Admiral of England, but by degrees it became, though differing widely in its jurisdiction Court of from the Common Law and Equity Courts, an ordinary municipal tribunal. Throughout its history, a more or less continuous struggle was carried on between this Court and the Courts of Common Law, to retain, on the one hand, the extensive civil and criminal jurisdiction which it originally claimed, and on the other to lessen or to put an end to its powers. The progress of the struggle, broadly speaking, was to narrow the Admiralty jurisdiction of the Court, until within quite recent times, when by legislative enactments, and from a less jealous spirit on the part of the judges of the Coinmon Law Courts, its jurisdiction has been considerably enlarged. It is only necessary to point to the unfettered exercise of its jurisdiction in cases of personal injuries caused by collisions at sea, and of breach of duty in the carrying of cargo, and of mortgage, as examples of this modern development. Until the twenty-eighth year of the reign of Henry VIII. the Court of Admiralty exercised a criminal jurisdiction over B Admi ralty. offences committed on the high seas, but in this reign it was enacted that such crimes were to be tried by the Lord High Admiral and commissioners in the same manner as offences committed on land; and in the reign of George III. these offences became triable by the ordinary tribunals.1 So far as regards its mere general civil jurisdiction, it is not easy to say when the Lord High Admiral's Court became actually established in this country, nor, except for merely antiquarian purposes, is it now of much importance; beginning with a personal jurisdiction on the part of that important officer himself, it became in time a Maritime Court somewhat analogous to those which in the middle ages existed in many seaports of Europe, and even of England. It is certain, however, that so far back as the reign of Edward I. it was a Court not only well known, but jealously watched, for in the twenty-second article of Part C of the Black Book of the Admiralty the following words occur, which have been supposed to show the starting point of the Admiral's jurisdiction in civil matters: "Item, any contract made between merchant and merchant, or mariner beyond the sea, or within the floodmark, shall be tried before the Admirall and noewhere else by the ordinance of the said King Edward and his lords." From that time various acts of Parliament' were passed in order to restrain the jurisdiction of the Court to things done on the sea, and from time to time persons tried to make use of its powers, but were restrained from proceeding by prohibitions issued by the Court of Queen's Bench. Nevertheless the jurisdiction of the Admiralty Court over things done upon the high seas, such as salvage and damage by collision, seems to have 1 28 Hen. VIII. c. 15; 39 Geo. III. c. 37; Russell on Crimes, 5th ed., vol. i., p. 10, et seq. * The Black Book of the Admiralty, edited by Sir Travers Twiss, published under the authority of the Lords Commissioners of Her Majesty's Treasury, under the direction of the Master of the Rolls, contains a full account of these tribunals. Black Book, vol. i., p. 69. 4 13 Richard II. c. v. ; 15 Richard II. c. iii.; 2 Hen. IV. Black Book of the Admiralty, vol. i., p. 412. 5 See cases collected, 4th Institute, 134, and criticized by Story, J.; De Lovio v. Boit, 2 Gallison, 398. been undisputed, whilst, even over some special contracts, such as bottomry, and over other matters, such as suits for wages and necessaries, it with difficulty obtained a jurisdiction concurrently with that exercised by the Courts of Common Law and Equity.1 The extent of what may be termed the recognised jurisdiction. of the Court at the time when its powers were most fiercely assailed, is well shown by an agreement made at Whitehall on February 18, 1632, in the presence of the King and the Privy Council, to solve, if possible, the difficulties which were continually arising between the hostile Courts of Common Law and the Court of Admiralty. It runs as follows: "1. If suit shall be commenced in the Court of Admiralty upon contracts made or other things Personal done beyond the Seas or upon the Sea; no Prohibition to be awarded. 2. If Suit be before the Admiral for Fraight, or Mariner's wages, or for breach of Charterparties, or for Voyages to be made beyond the Seas: Though the Charterparty happen to be made within the realm, so as the Penalty be not demanded, a Prohibition is not to be granted. But if the Suit be for the Penalty, or if the question be whether the Charterparty were made or not; or whether the Plaintiff did release or otherwise discharge the same within the Realm, this is to be tried in the King's Court at Westminster, and not in His Court of Admiralty. 3. If Suit be in the Court of Admiralty for Building, Amending, Saving, or necessary Victualling of a Ship, against the Ship itself and not against any party by name but such as for his interest makes himself a party; no Prohibition is to be granted though this be done within the Realm." In 1648 and 1649, and during the protectorate of Cromwell, a strong attempt was made to invigorate the somewhat drooping Court; its jurisdiction was enlarged, and three judges were appointed to preside over it. But at the Restoration, the 1 For a sketch of the wages struggle and the ancient jurisdiction of the Court, see De Lovio v. Boit, 2 Gallison, 398; and Pritchard's Admiralty Digest, Introduction, 2nd ed. 2 A view of the Admiralty Jurisdiction, by John Godolphin, LL.D., 2nd ed., 1685, p. 157. Scobell's Acts and Ordinances, c. 112, 1648, c. 23, 1649, 1651, c. 3, 1654, c. 21, 1656, c. 10. The Court of Admi ralty is in with the enactments of the Commonwealth were declared void, and from that time until the appointment of Lord Stowell as judge of the Court, in 1798, its jurisdiction was of little practical importance. But the increase of English commerce, and the great reputation of this judge, gradually directed public attention to it, and when, in 1840, an Act' was passed to enlarge its jurisdiction, a new field of usefulness was henceforward open to it. Thus claims and causes of action in respect of mortgages when the ship was under arrest, questions of title in actions of possession, and other causes were brought within its jurisdiction. 2 In 1854 came another Act to improve the practice; and three years later, barristers and solicitors, in addition to the members of Doctors' Commons and proctors, were admitted to practise before the Admiralty judge. The jurisdiction already given to it was further enlarged in 1861,3 in a manner which would have been gratifying to the medieval civilians who had formerly endeavoured to uphold its powers. Thus in the nineteenth century, the necessities of modern commerce brought to the Court a jurisdiction which the common lawyers had for a long time denied that it could legitimately possess. The Judicature Act of 1873 effected a very radical change so far as the constitution of the Court is concerned. By the third corporated section of this Act the Court of Admiralty is constituted an integral portion of the Supreme Court of Judicature, to which its former jurisdiction is transferred." But by a subsequent ture, 1873, section, the old order of things is to a large extent revived, since one separate division is formed, known as the Probate, Divorce, and Admiralty Division of the High Court, to which are assigned all causes and matters which would have hitherto 1 3 & 4 Vict. c. 65. 2 17 & 18 Vict. c. 78. 3 24 Vict. c. 10. See the Black Book; Spelman on Admiralty Jurisdiction; Coke's Institutes, Part IV. The Admiralty jurisdiction conferred from time to time upon the county courts should also not be passed over without notice in regarding the Admiralty jurisdiction of our municipal tribunals from an historical point of view. 5 J. A. 1873, ss. 3, 16. been within the exclusive cognizance of the Probate, Divorce, and Admiralty Courts.1 By the Act of 1875, provision is also made for the hearing in the Admiralty Division of actions of which it has hitherto taken cognizance concurrently with the Courts' of Common Law. Thus, except so far as the name and certain parts of the procedure are concerned, the Admiralty Division occupies practically very much the same position as did the old High Court of Admiralty. of the The judge of the High Court of Admiralty has hitherto by The judge Royal Warrant exercised in time of war the office of judge of Admiralty the Naval Prize Court, and his ordinary Court was distinguished Division presides from his Prize Court by the name of the Instance Court. But over the the jurisdiction of the Prize Court in no way has to do with the Prize Court. ordinary jurisdiction of the Admiralty Division of the High Court of Justice, though it must be mentioned in order to keep the ordinary jurisdiction distinct in the reader's mind. Still, should occasion arise, there is no reason to suppose that any other person than the judge of the Admiralty Division will occupy the position of the judge of the Naval Prize Court. adminis The High Court of Admiralty being originally purely a mari- The law time tribunal, unconnected with the ordinary Courts of the land, tered in administered justice according to the principles of Maritime Law the Admi only. That is to say, universal maritime customs, the sea laws, Division. ralty which were recognised by the different maritime countries, more especially as formulated in the celebrated Judgments of the Sea or Laws of Oleron and the Consulate of the Sea, and the civil law, formed the basis of its powers, though as time went on doctrines known to and acted on by the Common Law judges gradually became mingled with its old maritime principles. And this foundation of much of the present Admiralty jurisdiction in the medieval sea laws is shown with striking force by a comparison of some modern maritime statutes with the famous codes of former days. For the principles upon which actions for damage to cargo are based, as formulated in the Admiralty Court 1 J. A. 1873, ss. 31, 34. J. A. 1875, s. 11. |