cr ci, <-. « c«c tic r fc cx: ■ C'^r / ■■ / ^'^^H "v' ''■:«: ._. c^-c" cr-'rir -7^H CJC. ^ rl^ CL'.. r «- c .T^, c fC ; cc !:./«:-- case and a tea box, and that the hold was in a very confused state and looked as if it had been overhauled a good deal and the articles thrown about." Here, then, the character of the entry and the circumstances under which it occurred are plainly established. An entry by the Minnie into a place not a port or place of entry with dutiable goods on TDoard is proven. The voyage itself is in the last degree auspicious. The attempt made to evade the cutter at Aspy Bay, the frequent intercourse with the shore by means of boats, several of them passing and repassing ; the absence ■of everything in the evidence, as well as in the pleadings, to .show that the voyage to Bay of Islands was a real one and not a sham, a pretext under cover of which to enter Aspy Bay for illegal purposes; the proof of dutiable goods on board, all these conspire in making up a strong prima facie ■case, which Campbell was bound to meet and disprove. The burden of proof was entirely on the defendant. It was alike his duty, as it was his interest, to have satisfied the Court that the voyage was an honest one — to free it from the suspicion attaching to it. If Campbell went into Aspy Bay for a legitimate purpose, why did he fear the cutter ? Why did he strive to escape from the cutter's boat ? Tory, in his evidence, says : " After tne white boat left the Minnie, we rowed off to meet her. As we approached 70 VICE -ADMIRALTY COURT. her she kept off the wind, and tried to run from us ; hailed her twice, when the crew on board gave her, her main sheets and kept further off the wind." O'Connor, one of Tory's boat's crew at the time, says: — " When Tory called out they bore away, and let out th& main sheet to run away from them." McMaster, another of the crew, says : " She bore away and ran off before the wind." And Graham says : " She eased the main sheet and ran off." This is not contradicted ; there is not even an attempt to explain it by the defence ; and this, coupled with the suspicious character of the voyage, tells seriously against Campbell. I have under my hand a case throwing a strong light on this. It is that of the Eleanor, Hall, reported in Edward's Admiralty Eeports, vol. 1, p. 135, which was an action for a breach of the navigation laws, tried in our Vice- Admiralty Court in 1809. This was founded on a violation of sec. 2, 7 and 8 Wm. III. cap. 22, which, as far as re- garded the entry of vessels, was in spirit, if not in terms, much the same as section 9, above quoted. In this ease the decree pronounced against the vessel was appealed from, and the extracts which follow are from the judgment de- livered by Sir William Scott affirming the judgment below. I say : — " I come now to consider that which is the ac- tual, though by no means the only, ground upon which this sentence is directly to be sustained, and which has been, and justly, described by the counsel for the claimant as a matter of great imprudence — -I mean the entrance of the vessel into the port of Halifax. It has been said that even upon the supposition that this is to be taken as an alien ship, yet whatever may have been the imprudences of conduct on the part of the owner, she would be entitled to the rights of hospitality if driven into a British port in distress ; and certainly if the distress was real, whether Hall is a British subject or not, and whatever may be the character attached to the ship, she would be entitled to that benefit. Eeal and irresistible distress must be at all times. a sufficient passport for human beings under any such ap- plication of human laws. But if a party is a false mendi- THE MINNIE. 71 cant, if he brings into a port a ship or cargo under a pre- tence -which does not exist, the holding out such a false cause, fixes him with a fraudulent purpose. If he did not come in for the only purpose which the law tolerates, he has really come in for one which it prohibits, " that of carry- ing on an interdicted commerce in whole or in part." It is, I presume, an universal rule that the mere act of coming into port, though without breaking bulk, is primd facie evi- dence of an importation. At the same time this presump- tion may be rebutted, but it lies on the party to assign the other cause, and if the cause assigned turns out to be false, the first presumption necessarily takes place, and the fraudu- lent importation is fastened down on him. What constitutes an " importation " is thus defined by the same eminent Judge farther on in his judgment. He says " • " • And it has been decided over and over again that in order to constitute an importation, it is not necessary that vessels should come to a wharf." Upon the fact of importation , therefore, continues Sir William Young, there can be no ' doubt. The mere fact of coming into port with goods on board is primd facie evidence of an importation, and is, con- sequently, clearly a violation of sec. 9. How Campbell met it has already been adverted to. This law has been charac- terized as an exceedingly oppressive and unjust enactment. But a careful comparison of our Customs Act with the Eng- lish Customs Law will satisfy every dispassionate enquirer that the former is not more arbitrary or stringent than the latter. It must be recollected that Custom House laws are framed to defeat the infinitely varied, unscrupulous and ingenious devices to defraud the revenue of the country. In no other system is the party accused obliged to prove his innocence — the weight of proof is on him, reversing one of the first principles of criminal law. Why have the Legislatures of Great Britain, of the United States, and of the Dominion alike sanctioned this departure from the more humane, and as it would seem at the first blush, the more reasonable rule ? From a necessity, demonstrated by experience— the 72 VICE-ADMIBALTT COURT. necessity of protecting the fair trader and counter-working and punishing the smuggler. Hence it is that by section 47 of the English Consolidated Customs Act of 1853 (Hamel's Law of the Customs), every vessel entering inwards is compelled, under certain penal- ties, to observe four regulations. 1st — She shall come as quickly up to the proper place of mooring or unloading as the nature of the port will admit. 2nd — She must bring to at the stations appointed for the boarding of ships by officers of customs. 3rd — She must not remove from such place without per- mission of an officer of customs. 4th — And suitable accommodation on board must be made for the officer of customs. By section 153, no deviation from the actual voyage is permitted to a coasting vessel. And section 236 prohibits all vessels, foreign and domestic, from entering any port or place, other than a port or place of entry. It would indeed be difficult to frame a law more exacting and yet more necessary than this. There are long stretches of coast, particularly to the eastward of Halifax, where there is not a custom house or customs officer established. If entries into the numerous harbours, not ports of entry, that exist between Halifax and Canso, were permitted without restriction, there can be no doubt that a serious diminution of our customs revenue would ensue, and much injury be inflicted on dealers who keep themselves within the limits of the law. Situated as we ase, almost surrounded by the sea, with abundant harbours accessible for the most part at all seasons of the year, and few custom houses along our coast, such a law may well be deemed indispensable for the efficient protection of the revenue. Section 9 is derived for the most part from the Canadian Act 10 and 11 Vict. cap. 31, Consol. Stat, page 215 — that part of section 9 beginning with the words " or if any vessel," and ending with "unavoidable cause" seems to have been adopted for the first time in cap. 6, aforesaid. As for the wisdom of such a law it is not for the Court to speak. The duty of the Court is simply to interpret and to THK MINNIE. 73 give effect to the law as it exists, not as it may think it ought to be. As to the landing of goods from the Minnie, McMaster, Sullivan and Mills swear positively and distinctly, and cor- roborate each other with great particularity, that they saw several boats go alongside the Minnie from the shore, and re- turn again to the shore shortly after, and that boxes re- sembling liquor cases and soap boxes were taken from those boats on touching the shore, and carried — one man to each box — on men's shoulders from the shore. One of these wit- nesses, Sullivan, who at the time was using a spy-glass, says he saw the compartments for bottles in one of the boxes ■carried on shore. The evidence of Campbell and his men as positively denies this. They swear that no goods were landed, or packages either, except the passengers's chest, of the contents of which they were ignorant. The captain said he had no goods or liquors on board for his own, his family, or neighbour's use, but one of his crew proves that a case of liquor belonging to the captain was broken into and con- sumed on the voyage, and that each of the crew had several bottles of liquor of his own. Campbell, too, admitted that he had sometimes on voyages of this kind brought goods home for his own use. It would, indeed, be a unique and extraordinary voyage if he brought nothing home on the voyage in question. His Lordship, in pronouncing this judgment, and that which he was about to pronounce in the case of the Wampa- tuck, both of which bore hard on the interest of the defen- dants, was sensible that much interest would be excited, and the laws, under which he acted, and the Court itself Avhile giving them effect, might be arraigned. But that and like considerations could not relieve the Court of its duty. A Court was not worthy of the name which would refuse to carry out the law with fearless independence. Disappointed and guilty parties were apt to throw upon Judges the odium that belonged to their own unfair proceedings. On this sub- ject the language of Sir W. Scott in the case of the Eleanor applied. 74 VICE-ADMIKALTY COURT. " I have thus entered into these facts more minutely, because I am not ignorant that this case has been made the subject of an outcry, in which the Judge of the Court below and the officers of the Crown, have been treated with suffi- cient freedom. I must advertise parties that if they feel aggrieved by the sentence of a Court of Justice this is not the species of remedy which the law has provided for them The true remedy is to be pursued by a regular course of appeals in the tribunals appointed to correct errors, and not by partial and inflamed complaints against persons in judi- cial situations, preferred behind their backs, and in quarters where such complaints cannot be judicially examined. What would be unfair towards individuals is no less so when directed against Courts of Justice. I do not, however, sit here to decide upon the character and conduct of the Judge and Crown officers at Halifax, but to determine the legal merits of the case. From the conclusions I have dra^vn from the evidence, it will be inferred that I approve of the sentence which has been given. Mr. Hall's intentions may be honest, but they are only known to himself. I can judge of them only from facts, and such facts as appear in the evi- dence which is furnished, and, judging from that evidence, I do without hesitation affirm the sentence appealed from/' His Lordship then added : Campbell's intentions may have been honest, but he has failed to satisfy the Court by evidence that they were. His entry, as has been already said, was entirely without stress or unavoidable cause, which are the only legal excuses for entering a place not a port or place of entry lawfully constituted as such. There is every reason to believe — alike, from his conduct at Aspy Bay in presence of the cutter, and from his silence in re- gard to what was the character of the alleged voyage to Bay of Islands — that the latter was but a pretext, by cover of which to enter Aspy Bay for illegal purposes. On the whole evidence, it was added by the Court, it is clear that an illegal entry was made, and that dutiable goods were landed at Aspy Bay, and the defendant is therefore pronounced against, under the 5th article of the libel, for THE WAMPATUCK. 75 the penalty of $800, imposed by section 9, with costs of suit, but acquitted on all other articles of the libel. Blakchakd, Q.C, for the Grovernment. McDonald, Q.C, for the vessel. *THE WAMPATUCK. (Delivered 6th December, 1870.) Violation of Dominion Fishery Acts. An American fishing schooner was seized by one of the cutters appointed by the Dominion Government for the protection of their fisheries for being engaged in catching fish within the limits reserved by treaty and by the Dominion Fishery Acts. The evidence on the part of the prosecution was to the effect that, when boarded by the cutter, there were fish freshly caught upon the schooner's deck, and every indication of the crew having been very recently engaged in the management of their lines. The only evidence offered for the defence was that the fish had been caught merely for purposes of food. Held, that the vessel should be forfeited, with all her tackle, stores and cargo. This is an American fishing vessel of 46 tons burthen, owned at Plymouth, in the State of Massachusetts, and sail- ing under a fishing license, issued by the collector there on the 25th of April last. On the 27th of June she was seized by Capt. Tory of the Dominion cutter Ida E., for a violation of the Dominion Fishery Acts of 1868 and 1870, and her nationality and character appear from her enrolment and other papers delivered up by her master, and on file in this Court. A monition having issued in the usual form onthe 27th of July, a libel was filed on the 10th of August, and a claim having been put in by the owners with a bond for costs, as required by the Act, they filed their responsive allegation on the 18th of August. The fish and salt on board at the time of 8eizm*e being perishable, were sold under an order of the "Note.— This, and the three following cases are printed consecutively because they relate to the same questions, although so doing, breaks in upon the chronological order of the decisions. 76 VICE-ADMIEALTY COURT. Court, and the proceeds, with the vessel herself, remain subject to its decree. The evidence was completed early in September, but the case, being the first of the several fish- ing cases that has been tried, was not brought before the Court for a hearing till the 26th ult., when it was fully- argued, and stands now for judgmeut. Although it presents few or none of the nicer and more perplexing questions that will arise in the other cases, now also ripe for a hearing, it will be regarded with the deepest interest by the community and the profession, and on that account demands a more cautious and thorough examination than it might require simply on its own merits. An attempt was made at the argument to import into it wider and more comprehensive inquiries than properly be- long to it. I am here to administer the law as I find it, not to determine its expediency or its justice, still less to in- quire into the wisdom of a Treaty deliberately made by the two Governments of Great Britain and the United States, and acknowledged by both. If the people of the United States, inadvertently, as it is alleged, or unwisely (which I by no means admit) renounced their inherent rights, and ought to fall back on the Treaty of 1783, rather than abide by the existing Treaty of 1818, that is a matter for negotia^ tion between the two contracting powers — it belongs to the higher region of international and political action, and not to the humbler, but still the highly responsible and honour- able, duty now imposed on me, of interpreting and enforcing the law as it is. By the first Article of the Treaty of 1818, after certain privileges or rights within certain limits conceded to Ameri- can fishermen, it is declared, that " the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish, on or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in Ameri- ca, not included within the above mentioned limits. Pro- vided, however, that the American fishermen shall be admit- ted to enter such bays or harbours for the purpose of shelter, and of repairing damage therein, of purchasing wood, and THE WAMPATUCK. 77 of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them. Every word of this Article should be studied and under- stood by the people of these Provinces. They perfectly appreciate the value of their exclusive right to the inshore fishery, thus formally and clearly recognized, and they must take care temperately but firmly to preserve and guard it. It was argued in this case, that the restriction applied only to fishing vessels; that is, vessels fitted out for the purposes of fishing — that it did not extend to other vessels which might find it convenient or profitable to fish within the limits. But that is not the language of the Treaty nor of the Acts founded on it. The United States renounce the liberty enjoyed or claimed by the inhabitants, not merely by the fishermen thereof, and any vessel, fishing or other- wise, within the limits prescribed by the Treaty, is liable to forfeiture. Extreme cases were put to me at the hearing, and I have seen them frequently stated elsewhere, of a trading vessel or an American citizen catching a few fish for food or for pleasure, and the Court was asked whether in such and the like cases it would impose forfeitures or penalties. When such cases arise there will be no difficulty, I think, in deal- ing with them. Neither the Government nor the Courts of the Dominion would favour a narrow and illiberal construc- tion, or sanction a forfeiture or penalty inconsistent with national comity and usage, and with the plain object and intent of the Treaty. The rights of a people, as of an in- dividual, are never so much respected as when they are exercised in a spirit of fairness and moderation. Besides, by a clause of the Dominion Act of 1868, which is not to be found in the Imperial Act of 1819, nor in our Nova Scotia Act of 1836, which formed the code of rules and regulations under the Treaty of 1818, with the sanction of His Majesty, the Governor- General in Council, in cases of seizure under the Act, may, by order, direct a stay of proceedings ; and. 78 VICE-ADMIKALTT COUET. in cases of condemnation, may relieve from the penalty, in whole or in part, and on such terms as may be deemed right. Any undue straining of the law, or harshness in its application may thus be softened or redressed, and although I was told that little confidence was to be placed in the moderation of Governments, it is obvious that confidence is placed in it by the authorities and by the people of the United States ; and it is a fact honourable to both parties, that the naval forces employed on the fishing grounds in the past season, have acted in perfect harmony, and carried out the provisions of the Treaty in good faith. The organs of public opinion, indeed, in the United States, of the highest stamp, have denounced open and deliberate violation of the Treaty in terms as decided as we ourselves could use. These considerations have prepared us for a review of the pleadings and of the evidence taken in this case. The libel contains six articles. The first sets out in the briefest possible terms, the first article already cited of the Treaty of 20th Oct., 1818. The second gives the title of the Imperial Act 59 Geo. III. cap. 38. The third, that of the British North American Act, 1867, the 30th and 31st Vic. cap. 3 The fourth, those of the Dominion Acts of 1868 and 1870, the 31st Vic. cap. 61 and the 33 Vic. cap. 15. The fifth alleges that on the 27th June last, the Wampatuck, her mas- ter and crew, within the limits reserved in the Treaty, were discovered fishing at Aspy Bay in British waters, within three marine miles of the coast, without license for thatpur- pose, and that the vessel and cargo were thereupon seized by Capt. Tory, being a fishery officer in command of the Ida E., a vessel in the service of the Government of Canada, for a breach of the provisions of the Convention, or of the Statutes in that behalf, and delivered into the custody of the principal officer of customs at Sydney, Cape Breton. The concluding article prays for a condemnation of the vessel and cargo, as forfeited to the Crown. The responsive allegation admits the Convention, and the several Statutes as pleaded, raising no question thereon. It admits that the Wampatuck, being an American vessel, left the port of Plymouth on a fishing voyage to the Grand THE WAMPATUCK. 79 Bank, beyond the limits of any rights reserved by the Con- vention of 1818, and alleges that- she was not intended to fish on the coasts or in the bays of British North America, that on the 27th day of June, while pursuing her said voyage, becoming short of water, she ran into Aspy Bay for the pur- pose of procuring a supply thereof, and for no other pur- j)ose whatsoever ; that the master, with two of the crew, rowed ashore to get a supply of water as aforesaid, and directed the crew on board to work the vessel inshore to a convenient distance for watering, and that the master and crew were not discovered fishing within three marine miles of the coast as alleged. The sixth article, repeating the same allegations, proceeds to state further — that ' as the owners are informed, while the said master was on shore as aforesaid, the steward of the said vessel, and being one of ■ the crew of the same, while the said vessel was lying be- calmed in the said bay, did with a fishing line, being part of the tackle of the said vessel, catch seven codfish for the pur- pose of cooking them, then and there, for the food of the crew of the said vessel, and not for the purpose of curing or preserving them, as part of the cargo of the said vessel ; that the said fish were so caught without the knowledge, against the will, and in the absence of the master of the said vessel and part of her crew, and for this offence only the vessel and cargo had been seized.' I observe that this last allegation was repeated in an afiidavit of one of the owners on file, and, as we must in- fer, was consistent with his belief at the time, and probably led to the claim being put in under the 11th and 12th sec- tions of the Act of 1868. Had the evidence sustained it, the case would have assumed a very different complexion ; but, as we shall presently see, it is utterly at variance with the acts and the admissions of the pajrties on board. It is a remarkable circumstance that neither the master nor crew of the vessel have been examined, nor any evi- dence adduced on the defence, although a commission was granted on the 7th September for that purpose. At the hearing, indeed, two papers were tendered by the defen- dant's counsel — one, an ex parte examination of Forrest E. 80 VICE-ADMIEALTY COURT. RoUin, one of the crew, taken on the 27th September, in the State of Maine; the other, a deposition of Daniel Goodwin, the master, made on the 2nd of July — neither of which I could receive by the rules that govern this Court, and neither of which I have read. The latter, indeed, had never been filed, nor had the deponent been subjected to crosg-examina- tion. The case, therefore, was heard solely upon the evidence for the prosecution, consisting of the depositions of Captain Tory, Martin Sullivan, his second mate, and five others of the crew of the Ida E. From these it appears that the lat- ter entered Aspy Bay about 10 o'clock on the morning of June 27th, and was engaged all day in boarding the vessels lying there; and what seems very strange, but is plainly shown, that her presence and character were known to the master and crew of the Wavipatuck, and as one would have thought, would have made them cautious in their proceed- ings. She had entered the Bay on the same morning, and remained hovering about the shore all that day, about 4 or 5 miles from the Ida E. Gibson, one of the crew, states that Captain Tory and four of his crew, including the wit- ness, left the Ida E., between 6 and 7 o'clock in the evening to go to the Wampatuck, which latter vessel was then about 1^ miles or a little more from the shore. When they reached her they saw several cod-fish, about 15 or 20, on deck, very lately caught — some of which were alive, jump-i ing on the deck. They also saw some codfish lines on deck, not wound up, apparently just taken out of the water. Captain Tory states that several of the crew were engaged in fishing codfish — that they saw several codfish unsplit, very recently caught, on her deck, some of which were alive. In his cross-examination, he says that he saw three or four men with lines overboard, apparently in the act of fishing, and that there were more than 8 or 10 newly caught fish on the deck — he judged from 15 to '20. Graham states that they saw several codfish, very recently caught, on the deck, some of which were alive ; saw also several codfish lines on deck, and one of the crew of the Wampatuck hauling a line in. There were 5 or 6 men on board of her at THE WAMPATUCK. 81 the time. These statements are generally confirmed by the other four witnesses, and being uncontradicted, leave no doubt of the fact of a fishing within the reserved limits, for the purpose of curing, and not of procuring food only, as was averred. The admissions of Capt. Goodwin are equally emphatic. He came on board immediately after the seizure, and Siillivan heard him say that he could not blame Capt. Tory — his crew was so crazy to catch fish that they would not stop. Graham heard Captain Goodwin say that he knew he had broken the rules and was inside of the limits, and that the vessel was a lawful prize, that Captain Tory had done no more than his duty, that he could not blame him. This witness, in his cross-examination,, says, that about an hour after Captain Goodwin came on board, he heard him say he told the crew not to catch fish inside while he was away, but it was no use to talk, that fishermen would catch fish wher- ever they would get them to bite. The same witness says that he asiied the crew, as they knew it was the cutter's boat coming, why they did not throw the fish overboard, and one of them said they might have done so, but it did not come in their minds. Captain Tory testifies that Cap- tain Goodwin rejjeatedly admitted to him that he was aware that their fishing in shore was a violation of the law, and pleaded that he would not be severe on him. In his cross-examination, Captain Tory says, that at the time of such admissions, he does not recollect Captain Goodwin saying that the fishing was done without his knoAvledge or against his orders. Captain Tory does not think that he said so, as witness believes the captain was aware the Wampatiick went out from the harbour to fish, and that he saw. her within the limits. Gibson also testifies that on their way across the bay he heard Captain Goodwin tell Captain Tory that he could not blame him — it was not his fault — that he blamed himself, and that he knew he had violated the law. This mass of testimony having been open to the inspec- tion of the defendants and their counsel since the beginning V-A.R. 6 82 VICE-ADMIRALTY COURT. of September, it is very significant that they produced no witness in reply, and that it stood at the hearing wholly uncontradicted. As neither want of ability, nor of zeal, can be imputed to the counsel, the necessary inference is, that the facts testified to are substantially true. Two or three arguments were urged at the^earing, which it is incumbent on me to notice. It was said that there could be no forfeiture, unless an intent to violate the law were clearly shown on the part of the prosecution. The answer is, that the intent was shown by the admissions in proof, and that, independently of the admissions, where acts are illegal, the intent is to be gathered from the acts themselves. It was next said that the ca]5tain of the Ida E. ought to have notified the master of the Wampatuck, but it was admitted in the same breath that notice was not required in the Statute, the Act of 1870 being somewhat more strin- gent in that, respect than the Act of 1868, while the pri- vate instructions to the captain of the cutter were not in proof. The main objection, however, was, that the fishing hav- ing been done in the absence and without the authority of Captain Goodwin, the vessel was not liable to forfeiture, l^ow, it is to be noted that there is no evidence, nothing under oath, of the master having prohibited, or been igno- rant of, the fishing. I have stated his disclaimer as accom- panying, or qualifying, his admissions ; but if the prohi- bition or want of authority would constitute a defence, it should have been proved. It is to be observed, too, that under the shipping paper, showing a crew of nine persons in all, seven besides the skipper and salter, the men were not shipped by wages, nor by the thousand of fish caught, but were sharesmen, having an interest in the voyage, and whose acts as fishermen, necessarily compromised the vessel. They were inhabitants of the United States, fishing in violation of the Treaty, and the Act of 1870 declares that if any foreign ship or vessel have been found fishing, or preparing to fish, or to have been fishing (in British THE A. H. WANSON. 83 Avaters) within the prescribed limits, such ship, vessel or i)oat, and the tackle, rigging, apparel, furniture, stores and «argo thereof, shall be forfeited. But supposing the doc- trine as between master and servant, or as between prin- •cipal and agent, to applj^ for which no authority was cited, it would not avail the defendants. The last point, as to agency, was examined thoroughly in the Supreme Court of ihis Province, in the case of Pope v. The Pictou Steamboat Company, 2 Oldright, 176, in 1865, and was decided against the principal. And as to the analogy of master and servant — the responsibility of the master for the act of the ser- vant, where, as in this case, the servant was acting within the scope of his employment, I would content myself with siting the decision of the Exchequer Chamber in the case of Limpus V. The General Omnibus Company, 7 Law Times Eeports, N. S. 641, where the rule is laid down by Blaek- hurn, J., in these words : — 'It is agreed by all that a master is responsible for the improper act of his servant, even if it be wilful, reckless or improper, provided the act is the act of the servant in the scope of his employment, and in executing the matter for which he was engaged at the time.' These objections, therefore, having failed, and the fish- ing by the crew within the reserved limits having been abundantly proved, this Court condemns the Wampatuck, her tackle, apparel, furniture, stores and cargo as forfeited under the Dominion Acts, the vessel to be sold at public auction, and the proceeds to be distributed, along with the proceeds of the cargo, as du-ected by the Act of 1868. Blanchard, Q.C, for government. McDonald, Q.C, for owners. THE A. H. WANSON. (Delivered February ioth, 1871.) Violation of Dominion Fishery Acts.— A case of very similar nature with the preceding, the only difference being in the evidence adduced. For the prosecution it was proved that the vessel was lying too in the very 84 VICE-ADMIRALTY COURT. position for fishing; that the crew were seen casting and hauling in their lines and throwing out bait, and that when boarded there were several lines over the rail, fresh bait about the deck, and other signs of recent operations. Held, that there was sufficient evidence to warrant a forfeiture of the- vessel, etc. This is a schooner of 63 tons burthen, belonging to Gloucester, in the State of Massachusetts, sailing under an enrolment of 4th of June, 1868, and a fishing license of 27th June last. On the 3rd Sept., she was seized by Capt, Carmichael, of the Sweepstakes, one of the Dominion cut- ters, for fishing within three marine miles of the coast of Cape Breton, at. Broad Cove, and was libelled therefor in the usual form on the 17th. On the 19th her owners put in their responsive allegation, and at the same time h^r master and four of her crew were examined thereon. For the prosecution, there were examined bj the 80th Sept., th& captain, the first officer, three of the other of&cers, and ten of the crew of the Sweepstakes ; and on the 21st and 22nd October, there were examined under commission at Canso, the master and two of the seamen of the Dusky Lake, a fishing schooner belonging to Margaree. All the witnesses- on both sides in these 23 depositions were subjected to cross-examination, and the evidence, as was perhaps to be expected, is conflicting. The case, as it will be perceived, was ready for trial by the end of October ; but the intervening terms of the Supreme Court, and the incessant engagements both of Judge and Counsel, rendered it impossible to bring it on for hearing until the 4th inst. The legal principles applicable to the case having been fully discussed in that of the Wampatuck, the argiiment was confined to the effect of the evidence ; and the decision will turn solely on ques- tions of fact. On the 2nd September, the cutter, a sailing vessel, and scarcely distinguishable from the usual class of fishing craft, arrived at Broad Cove about ten o'clock at night, and next morning, a little before five o'clock, according to Cap- tain Carmichael, who is confirmed in all essential particu- lars by his officers and crew, he discovered a number of THE A. H. WANSON. 85 vessels, some say as many as 70, fishing close to them, and hove to under then- mainsails. Some of these were Ameri- can, and Evans, the boatswain, says he saw the captain of the American vessel nearest them stand on the house and wave his hat to the other vessels near at hand, and they immediately hoisted their jibs and made off from the shore. None of these were caught ; but Captain Carmichael dis- -covered the A. H. Wanson about a third of a mile dis- tant. She was hove to under her mainsail, with her rail manned, and fishing on the starboard side, according to the established usage. The morning was clear, and he could see the men on her deck distinctly, casting their lines and throwing bait ; he also looked at her through his spyglass, and described certain mai-ks on her to his men, that they might easily distinguish and board her. He -then steered in the direction of the A. H. Wanson, and when about fiftj' yards of her, hoisted his colours, and fired a blank cartridge. The vessel then showed American •colours, and Nickerson, the first officer, and boat's crew, Avent on board. Nickerson testifies that he also distinctly saw the men •casting and hauling in their lines, and throwing bait, until the cutter was within three hundred yards of them. He ■observed them at this work for about fifteen minutes. After going on deck, he observed four lines over the rail in ihe water, on the starboard side ; he saw several of the hooks baited with fresh bait ; he saw the bait on the lines in the water, after being hauled in ; he also saw scales of fresh mackerel on the deck, and over the inside of the strike barrels then on the deck ; also two bait-boxes, with fresh bait in them — pogies and clams. He then signalled for "the captain of the cutter, who came on board, and asked fiome of the crew why they did not get under weigh when they saw his vessel, having had plenty of time to get off. Some of them replied that they did not see him ; they were not thinking of cutters, only of steamers, having arrived only the evening before. The vessel was then in 17 fathoms of water, by the lead, less than two miles from Cape Breton shore, and Sea Wolf Island bearing about north by the 86 VICE-ADMIRALTY COURT. compass. When seized, she was drifting, with mainsail guyed off, in the direction of the Sea Wolf Island, forging- a trifle ahead. It would be a waste of time to go through the deposi- tions of the other officers and crew of the cutter, which are more or less affirmative of, and none of them contradict, the above. Jones says he saw one man forward of the- main rigging throw a scoop of bait into the water. This is confirmed by five others — Grant, Langley, Cleas, Evans- and Hennesy. Eose says that the crew ceased casting their lines, about a minute before the Sweepstakes rounded to. The A. H. Wanson was then inside of two miles from Cape- Breton shore, and drifting in, in a north-westerly course. From the direction in which the cutter came, veiling: her approach, and with the Nova Scotia vessels interven- ing, none of the persons on board saw the fish actually taken and hauled up, and the further evidence of the three men on board the Dusky Lake becomes very material. Thos. E. Nickerson says they were about 100 yards from the A. H. Waiiso7i, lying between her and the shore. He did not see any fish taken or caught by her, he could not see the men hauling any lines or throwing bait from the- way the sails hid them, but in answer to the 11th question,, he says that he saw the cutter approaching — -she approached the A. H. Wanson from the south-west, and 'the witness observed her men standing at the rail, and saw them take their strike-barrels to leeward, and throw round mackerel overboard, and when- the Sweepstakes was rounding to, they hauled in their main sheet, and after the Sweepstakes- fired a gun, they hoisted their colours to the main peak. The next witness, Joseph H. Grant, says the A. H. Wanson was lying to under mainsail and foresail ; they appeared to- be fishing ; he did not see them catch any ; as the Siceep- stakes approached, he observed them take their strike bar- rels to leeward, and throw the mackerel overboard, he could not see any one throwing bait ; but saw the tole of bait in the water, as is usual when bait is throwing, in- order to raise mackerel. THE A. H. WANSON. 87 By the ninth cross interrogatory he was asked 'would not any vessel drifting along use the same sails and appear in the same position as the A. H. Wanson / Is there anything particular in the use of their sails by vessels employed in mackerel fishing more than in any other vessels ?' To which his answer is : ' I cannot say — never saw any vessel in that position unless she was fishing. There is quite a difference.' He had previously said that he had been two years engaged in the hook and line mackerel fishing in the Gulf of St. Lawrence, and was quite familiar with the waj^ in which the fish are caught. The remaining witness, Thomas Roberts, who was de- scribed at the hearing as master, says the A. H. Wanson was lying north-west, and about 200 yards from the Dusky Lake, they (that is the men of A. H. Wanson) catching mackerel, lying head to the southward, under her main- sail. They were fishing, and the witness saw them catch fish — mackerel. She was inside of three miles. He further says : — ' I observed lines on starboard side. I saw the men hauling the lines — sixteen or seventeen men. They hauled them in with fish on them, and slatted them off, and threw them out again. ... I saw them throw- ing bait in the usual manner for attracting mackerel.' In his thirteenth answer, he says : ' I can positively swear that they were catching mackerel, and were within three marine miles of the shores of Cape Breton.' When the Sweepstakes ran down upon them from the south-west they gave up fishing, and carried their strike barrels to leeward, and threw the fish overboard." In answer to the eleventh and thirteenth cross-interrogatories, he says : ' I saw them heaving bait, casting lines, catching mackerel, and dump- ing them overboard, and coiling up their lines. They were slatting fish off their lines after hauling them in.' Let us consider the effect of this mass of evidence, which I have gone into with a particularity very unusual with me, and only to be justified by the nature of the charge, and the necessity of vindicating every judgment that is pronounced. Here is a fleet of vessels, Nova Scotian and American, on a fine clear morning, busily 88' VICE-ADMIRALTY COURT. engaged in fishing, the mackerel rising all around, and no hostile cutter supposed to be near. The Ameri- cans think little of the prohibition which the new and more vigorous policy of the Dominion has im- posed. They are impatient of the exclusive right claimed by the Canadian people on the principles of international law, and the faith of treaties ; and violate it without scruple whenever the opportunity occurs. Hence the eagerness, and the openness too, with which these Ameri- can fishermen are plying their task on this particular morning. What should we say, if we were told that one vessel only was virtuous or strong enough to resist the temptations, and to hold their hands from touching their neighbour's goods? The captain of the Wampatuck, when caught in the act, excused himself, on the ground, that his crew were so crazy to catch fish, that they would not stop. But, here on the decks of the A. H. Wanson was a model crew, who would not catch mackerel within the three miles, though swarming around them. That is the sole defence in this case. They admit that they were within three miles of the shore — that they were lying guyed off under main-sail, and with their anchor up, heading south-south east towards the shore in the very position for fishing — they were not aware of the arrival of the cutter — and yet they would have this Court believe that they were not fishing. It would be a great stretch of credulity to believe this in the absence of evidence to the contrary. But with the mass of testimony just recited, the eight or ten, men upon the rail, the casting and hauling in of the mackerel lines — the throw- ing of bait —the emptying of the strike barrels on the ap- proach of the cutter, and the clear and positive evidence of three disinterested witnesses from the Dusky Lake — what is to be said of such a defence ? In the face of it all, the master and four of the crew of the A. H. Wanson — five out of the 16 or 17 men said to be on board, have sworn that said schooner, or the captain or crew thereof, did not fish, or prepare to fish, within three marine miles of the coasts, bays, harbours, or creeks of Canada, or of that part of the coasts and bays thereof known as Broadcove and as Sea- THE A. J. FEANKLIN. x 89 Avolf Island, on the north-west coast of Cape Breton, on the 3rcl day of September last, or at any other time durmg said season. This might be supposed to be^ a mere formal denial, repeated, however wrongfully or incautiously, by all five, in the very words of the responsive allegatioHj «if *^^ in the body of their evidence they assert that none o i+he men were fishing, or had been fishing that morning, or at any time after going into Broadcove, or were preparing to fish. By what strange casuistry these men reconcile such an assertion to their consciences and sense of right, it i& difficult to tell. The human mind practices singular de- lusions upon itself, and the spectacle of conflicting evidence is only too common in courts of justice. It is enough, in the present case, to say that the evidence for the prosecu- tion is overwhelming and irresistible. The allegation that the men were only clearing out their tangled lines, besides being inconsistent with the usage and habits of expert fishermen, is wholly insufficient to account for the actions of these men while on the rail, as seen and testified to by so many of the witnesses. I pronounce therefore, for the condemnation of the A. H. Wanson, her tackle, apparel, furniture, stores and cargo, as forfeited under the Dominion Acts, and the same having been bailed at the appraised value of $3,500, I direct that the amount shall be paid into court, to be distributed as directed by the Act of 1868. I pronounce also for the costs secured by the first bond, on the defence being put in. Blanchaed, Q.C, for government. Shannon, Q.C, for owners. THE A. J. FEANKLIN. (Delivered ioth February, 1871.) Violation of the Dominion Fishery Acts.— The vessel proceeded against in this case was found by one of the cutters in the midst of a mackerel fleet, within the prescribed limits, and overhauled, but afterwards permitted to go ; but, on further information being received, was seized. 90 VICE-ADMIRALTY COXJUT. •'■'>■ on a subsequent day, in an adjoining port. The only material evidence against her was that of the crews of two other fishing schooners, who testified that they had seen lines and bait thrown out from the suspected vessel, and that her men had continued trying for mackerel until the cutter came up. This evidence was further strengthened by admissions of the men, going to show that they had actually taken mackerel. Held, that the vessel was forfeited. This is a schooner of 53 tons burthen, owned at Glouces- ter, in the State of Massachusetts, under an enrolment of 4th February, 1868, and sailing under a fishing license of 28th January, 1870. Attached to her papers are also printed copies of the Treasury Circulars is^sued at Washing- ton on the 16th May and 9th June last, apprising the own- ers and masters of fishing vessels of the first article of the Treaty of 1818, of the Dominion Acts of 1868 and 1870, and of the equipment of Canadian sailing vessels for the enforce- ment thereof. This vessel — the A. J. Franklin — having been warned by Captain Tory, of the cutter IdaE., against fishing within the i^rescribed limits, and having been found on the 11th October in the midst of a mackerel fleet at Broad Cove, was overhauled and visited by the cutter, and was then let go ; but, on further information that she had been fishing on that day, she was seized on the 15th October, in the Strait of Canso, and libelled in the usual form on the 2nd November, and a responsive allegation put in. The vessel and cargo were afterwards liberated on bail at the appraised value of $2,500, and depositions were taken on both sides, and cross-interrogatories filed. Some irregu- larities appear on the face of them, which were waived by consent as indorsed, and the case came before me on the 6th instant, on the pleadings, and eighteen depositions, those of the master, second mate, and six of the crew of the Ida E., and of six of the crew of two Lunenburg vessels, pro- duced on the part of the prosecution, and those of the first mate of the Ida E., and of the master and two of the crew of the A. J. Franklin, produced on the defence. Captain Tory states that on the morning of the 11th of October, he saw the mackerel fleet close to the shore in THE A. J. FEANKLIN. 91 Broad Cove, engaged in fishing, and having run outside until he got about midway, he fired a blank shot for the pur- pose of ascertaining, by their returning the signal, what vessels were British and what not. The A. J. Franklin then came out from the centre of the fleet, and immediately set all sail and ran direct from the land, as if trying to avoid detection. To prevent her escape the captain ordered a shot to be fired across her bow, when she hauled down her jib, and hove to. The two vessels were then abouc 21- miles from Marsh Point in Broad Cove, and less than 2 miles from Sea Wolf Island. The Captain at once boarded the .1. J. Franklin, and found some mackerel lines coiled up on the rail, that were wet, the hooks attached thereto being uewl^^ or fresh baited, and fresh fish blood and mack- erel gills on deck ; he saw also other lines coiled up under the rail, which were dry. Captain Tory charged Captain Nass with fishing that morning inside the limits, and he admitted that he was lying to with his jib down and sheets off when the first gun was fired, but denied that he had caught any mackerel. He said, however, that he had caught two or three codfish. He accounted for his lines being so recently wet by the washing of the deck. His attention was then called to the gills, blood, and bait on deck, but no fresh mackerel being found, and Nass solemnly denying having caught any, and appealing to two vessels, which he named, for confirmation of the statement, Capt. Tory released him, warning him, however, that if he ascer- tained that he had been fishing, or trying to fish within the limits that morning, that he would seize him wherever he caught him, within three miles of the coast. This statement is confirmed by the other men who boarded the vessel with Capt. Tory. Matson thinks the A . J. Franklin was not more than one and a-half miles from the shoi-e when they first saw her. Nass at first denied that he had his jib down, but afterwards admitted it, and said he was waiting to see if the other vessels caught any mack- erel. Although this circumstance, and his being so near the shore were suspicious, it is obvious, that on the facts as they then appeared, the seizure of the vessel could not have 92 VICE -ADMIRALTY COURT. been jusUfied, especially if it be true, as stated in the defen- dants' evidence, that she was then outside of the three ' miles. The evidence of the Lunenburg men is, therefore, very material, and we must see what it amounts to. There were two vessels, the Cherub and the Nimble, and the A. J. Franklin lay within 60 to 100 yards of them. The crews spoke together while trying to fish. Arnburg saw three of the crew of the A. J. Franklin fishing ; saw them catch cod- fish ; three he is sure of ; she was in the position to catch mackerel, and was then about a mile from the shore. The Tvitness saw no mackerel caught, and no fish thrown over- board. Eodenzier states that the A. J. Franklin and his vessel lay 100 yards apart. The skipper of the A. J. Frank- lin said " mackerel were scarce ; he did not do much yet." He was at the bait box. The crew were preparing for fishing on the starboard side, which is the invariable usage. David Heckman says " we were on the starboard bow of the A. J. Franklin. She had her mackerel lines out, and they were heaving bait. She continued trying for mackerel till after the Ida E. fired the second time, when the crew hauled in their mackerel lines, hoisted jib, trimmed their sails, and stood off out from the fleet, and set staysail. Thomas Her- man says, four of the crew of the A. J. Franklin were fishing for codfish ; the skipper was throwing bait for mackerel, and threw his mackerel lines ; others were on the rail on the starboard side, looking over She was hove to, jib down, foresail and mainsail up, and sheets off on port side. Peter Heckman, states that he saw some of the crew of the A. .J. Franklin trying to catch mackerel — ^they threw their lines over the starboard side — they threw bait over to raise mackerel — they were throwing bait witli lines over, trying for mackerel, as the Ida E. ap- proached — the crew, after she fired, hauled in the lines, hoisted jib, and stood off the shore. The crew cheered and shouted as they got out of the fleet, and set their staysail. George W. Nass says that he saw some of the crew of the A. J. Franklin heaving bait, and they had mackerel lines out on the starboard side. She was hove to, jib down, mainsail THE A. J. FRANKLIN. 95 and foresail to port, as is usual in fishing for mackerel — she was then within two miles of Broad Cove shore, and about three miles to westward of Seawolf Island. When the Ida E. came from the westward, the witness heard skipper Nass call out something to one of the other vessels — the reply to him was that it was one of the cutters. The A. J. Franklin then hauled in her mackerel lines, and hoisted her jib, and stood to the northward, and then set her staysail. Neither this witness nor any of the others saw any mack- erel caught, nor any fish thrown over from the A. J. Frank- lin. The case for the prosecution is strengthened by cer- tain declarations of the crew, which were not objected to at the hearing, and being against their interest as sharesmen, are receivable, I think, in evidence. Captain Tory testifies that he heard several of the crew of the A. J. Franklin say on the day of the seizure a,t the Strait of Canso, that after he left their vessel at Broad Cove, they advised Captain Nass to clear out of the Bay, and go immediately home — that Capt. Tory would find out. they had been fishing, and seize them, and that they would lose their fish, to which Capt. Nass replied, that he would like to try a few days longer — that Capt. Tory had been aboard, and was not likely to trouble them again, or such; like words. Sullivan heard one of the crew make a like declaration ; and McMaster heard one of the crew say, after the A. J. Franklin was seized, that they had caught mackerel the morning Capt. Tory boarded them off Broad Cove. Of the depositions for the defence, that of Eegis Eai- mond, who was first mate of the Ida E., merely repeats what has been already stated — that Capt. Tory, after he boarded the A . J. Franklin, assigned as his reason for not seizing her, that he had found no fish taken that morning, and did not think they had been fishing. The seizure, obviously resulted, from information subsequently received. The depositions of Capt. Nass aind two of his crew go- much further, and deny a fishing, or preparing to fish 94 VICE-ADMIKALTY COURT. altogether. They allege that the jib was let down to pre- vent their running into another vessel that was ahead. On no daj' say they, between the 1st and 15th October, had the A. J. Franklin, or any of her crew been fishing or preparing to fish, or had fished, within three marine miles of the North West coast of Cape Breton. On the morning of the 11th they sailed from Port Hood towards Broad Cove. After hoisting their jib to go to East Point, and having got out- side of the fleet, a gun was fired from the Ida E. They continued on their course, and, after running about half-a- mile, a second gun was fired, when the A . J. Franklin hove to, and was boarded, and, after enquiry, was let go. This is the subject of Captain Nass's afiSdavit, who states also that Capt. Tory was doubtful or reluctant to seize him, and in his statement of what occurred on the 11th he is confii-med by Morash and Mitchell. These three deponents, in fact, are in direct conflict with the six men who have given evidence from Lunenburg. All the minute circumstances they have detailed — the first, that the A. J. Franklin was in the centre of the fleet — that within 100 yards of the Nova Scotia vessels she was in the position for fishing, throwing bait to attract the mackerel, and with her lines down — her hasty retreat on the approach of the cutter — all are to be rejected as fabrications, and the six witnesses from Lunenburg, who have no interest in the matter, to be disbelieved. I need not say that no Court could come to such a conclusion, and for all the purposes of this suit, the evidence of those Lunenburg men must be taken as substantially true. To what result, then, does it tend. On the charge of preparing to fish — a phrase to be found in all the British and Colonial Acts, but not in the treaty — I shall say little in this judgment, because it will be the main enquiry in the judgment I am to pronounce in a few days in the far more important case of J. H. Nickerson. Had I considered the facts in this case to amount to nothing more than a preparing to fish, I would have postponed my decision till the other was prepared and delivered. But I look upon the throwing of bait — the heaving to with sheets off, and the jib down, THE A. J. FRANKLIN. 95 and tlie vessel thus lying in the position to catch mackerel, with the mackerel lines out, and hauled in on the approach of the cutter — these circumstances, coupled with the declar- ation and actions of Captain Nass, bring the case clearly, as I think, within the meaning of the Dominion Acts of 1868 and 1870, as a fishing, and subject the vessel and her cargo to forfeiture, although no mackerel are proved, ex- cept by the declarations of the crew, to have been taken. If I am wrong in this conclusion, an appeal to the High Court of Admiralty, under the Imperial Act of 1863, will afford the defendants redress, and I shall not be sorrj"- to see such appeal prosecuted. Or the Dominion Government may see fit to relieve them from the penalty in whole or in part, as they have a right to do, under the Act of 1868, sec. 19. Personally, I may say — if a Judge has a right to express any i^ersonal feeling — as the vessel was appraised at $800, and the cargo, in which the crew were largely interested, at a much larger sum, I would be well pleased to see the penalty in this case largely mitigated. It is not the policy, as I take it, of the Dominion Gov- ernment, nor is it the disj)osition of this Court, to press with undue severity upon the American fishermen, even when they trench upon our undoubted rights. The Court has been accused, I am told, of condemning the Wampatuck, because the steward, in the absence of the master, had caught seven codfish within the limits, for the purposes of cooking. Such, it is true, was the defence that was set up, and, had it been established, there would certainly have been no condemnation. But the evidence showed that there was a fishing by three or four men, having lines overboard, as was admitted by the master, and several codfish caught for the purpose of curing and not of procuring food only, as was averred. Bo, in this case, three or four codfish are admitted to have been taken within the limits ; but I have not taken that circumstance at all into account, consider- ing it too trifling to be a ground of condemnation. In the case of the Reward, — 2 Dodson Adm. Eepts. 2t)9, 270— Sir William Scott observed : " The Court is not bound to a strictness at once harsh and pedantic in the 96 VICE-ADMIRALTY COURT. application of statutes. The Court permits the qualification implied in the ancient maxim, ' De minimis non curat lex.' When there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be in- flexibly severe^ If the deviation were a mere trifle (and the catching of a few codfish for a meal is such), weighing little or nothing in the public interest, it might properly be overlooked." Upon the other grounds, however, on which I have en- larged, I conceive it my duty to declare the A. J. Franldinr her apparel and cargo, forfeited, with costs, and her value, when collected from the bail, distributed under the Act of 1868. Blanchard, Q.C, for government. Shannon, Q.C, for owners. THE J. H. NICKEESON. (Delivered November 14TH, 1871.) Violation of Dominion Fishery Acts. — The treaty by which the United States formally renounced the liberty they had hitherto enjoyed of fishing within the prescribed limit of three marine miles of any of the bays or harbours of th^ Dominion of Canada contained the following proviso : — " Provided, however, that the American fishermen shall be per- mitted to enter such bays or harbours for the purpose of shelter, and repairing damage therein, and of purchasing wood and of obtaining water,, and for no other purpose whatever." The J . H. Nickerson entered the Bay of Ingonish, in Cape Breton, for the alleged purpose of obtaining water, etc. ; but the evidence clearly showed that the real object of her entry was to obtain bait, and that a quantity of bait was so procured. She was seized by the Government cutter, after she had been warned off, and while she was still at anchor within three marine miles of the shore. Held, that she was guilty of procuring bait and preparing to fish within the prescribed limit, and must therefore be forfeited. " This is an American fishing vessel, of seventy tons bur- then, owned at Salem, Massachusetts, and sailing under a THE J. H. NICKEBSON. 97 fishing license issued by the collector of that port, and dated March 25th, A.D., 1869. In the month of June, 1870, she was seized by Captain Tory, of the Dominion schooner Ida £., while in the North Bay of Ingonish, Cape Breton, about three or four cable lengths from the shore ; and it appeared that the offence charged against her, was that she had run into that bay for the purpose of procuring bait, had persisted in remaining there for that purpose after warning to depart therefrom, and not to return, and had procured or purchased bait while there. This case, therefore, differs essentially from the cases I have already decided. It comes within the charge of a preparing to fish — a phrase to be found in all the British and Colonial Acts, but not in the Treaty of 1818. In giving judgment, 10th of February last, in the case of the A. J. Franklin, I referred to the case in hand, and stated that I would pro- nounce judgment in this also in a few days, which I was prepared to do. But it was intimated to the Court that some compromise or settlement might possibly take place in reference to the instructions that had been issued from time to time to the cruisers, and to the negotiations pend- ing between the two Governments, and I have accordingly suspended judgment until now, when it was formally moved for. The same arguments were urged in this case as in the case of the Wampatuck, on the wisdom of the Treaty of 1818, and some severe strictures were passed on the spirit and tendency of the two Dominion Acts of 1868 and 1870. To all such arguments and strictures the same answer must be given in this, as in my former judgments. The libel sets out in separate articles these two Acts, with the Treaty, and the Imperial Acts of 1819 and 1867, all of which are admitted without any question raised thereon in the respon- sive allegation. I must take them, therefore, both on gen- eral principles and on the pleadings, as binding on this Court ; and it is of no consequence whether the Judge approves or disapproves of them. A Judge may some- times intimate a desire that the enactments he is called upon to enforce should be modified or changed ; but until V-A.R. 7 98 VICE -ADMIRALTY COURT. they are repealed in whole or in part, they constitute the law, which it is his business and his duty to administer. Our present enquiry is, what was the law as it stood on the Statute Book on the 30th June, 1870, when the seizure was made ? The Coiu-t, as I take it, has nothing to do with the instructions of the Government to its officers, and which, if in their possession on that day, might have induced them to abstain from the seizure of this vessel, or may induce the Government now to exercise the power conferred on them by the 19th section of the Acts of 1868. But before pursuing this inquiry, let us first of all ascertain the facts as they appear in evidence. For the prosecution, there were exhibited the examinations duly taken under the rules of 1859, of Capt. Tory and thirteen of his crew, all of whom were examined on cross interro- gatories. Capt. Tory testifies that he boarded the vessel at Ingonish, on the 25th of June, and the master being on shore, that he asked the crew then on board, what they were doing there, and they said they were after bait, and had procured some while they were there after coming in, and wanted more. About an hour after he saw the master, and told him he had violated the law, that he had no power to allow the vessel to remain, and that he had bet- ter leave. On the 26th the vessel was still there in the harbour, and Capt. Tory boarded her and saw fresh herring bait in the ice house ; and Capt. McDonald, the masteri admitted that he had procured said bait since his arrival ; and he afterwards admitted that he had violated the law, and hoped that Capt. Tory would not be too severe with him ; and as he promised to leave with his vessel, Capt. Tory did not seize her. She went to sea the same night, but on the 30th was found at anchor in the same place where Capt. Tory boarded her ; and judging from the ap- pearance of her deck, that she had very recently procured more bait, which he saw the next morning, he seized her. In his cross-examination, he says that the herrings he saw on the first occasion in the ice-house on board were fresh, THE J. H. NICKERSON. 99 but had been a night or two in the nets, which caused them to be a little damaged ; and were large, fat herrings, and similar to those caught in the vincinity of Ingonish at that season of the year. The herrings he saw on the second occasion were also fresh, newly caught, with blood on them, of the same description, except that they were sound. This evidentje, in its main features, is confirmed by sev- eral of the crew. Grant went into the ice-house by order of his captain, and there saw about five or six barrels of fresh herring bait and a few fresh mackerel. There were scales of fresh fish on the rails, from which witness judged that they had taken fish that morning. Capt. Tory then seized the Nickerson and placed the witness on board as one of the crew, to take her to North Sydney, the captain of the Nickerson remaining on board. Witness, on the pas- sage, heard said captain say (and this several of the other men confirm in words to the liKe effect) that he had pur- chased 700 or 800 herrings that morning. He also said that he wanted more bait, — that it was of no use going out with that much. McMaster says that on the passage to Sydney, he heard some of the crew of the Nickerson say that they had bought seven barrels of fresh herring bait that morning and that they wanted more. Four of the seamen testify to another conversation with Captain McDonald, in which he said he would not have come in a second time had he known the cutter was at hand, that all the bait he had would not bait his trawls once, and that it was not worth while for him to go off to the banks with that much. These depositions were taken on the 1st of Sep- tember, 1870, and the only reply is the examination of John Willis, the steward of the Nickerson, taken in October under a commission at Boston, which undertakes to deny altogether the purchasing or procuring of bait, — nullifying the numerous admissions in proof and supporting the re- sponsive allegation as a whole. Neither the master nor any of the crew of the J. H. Nickerson were examined, and I need scarcely say that the evidence of the steward alone, as opposed to the mass of testimony I have cited, is un- worthy of credit. 100 VlCE-At)MlllAL.tY .COUKT. It being, then, clearly established that the J. H. Nickerson entered a British port and was anchored within three marine miles of the coast of Cape Breton, for the purpose of purchasing bait, and did there purchase or pro- cure it in June, 1870, the single question arises on the Treaty of 1818 and the Acts of the Imperial and Dominion Parliaments. Is this a sufficient ground for seizm'e and con- demnation ? This was said at the hearing to be a test case, — the most important that had come before the Court since the termination of the Eeciprocity Treaty of 1854. But it has lost much of its importance since the hearing in Feb- ruary, and the present aspect of the question would scarcely justify the elaborate review which might otherwise have been reasonably expected. If the law should remain as it is, and the instructions issued from Downing street on the 30th of April, and by the Dominion Government on the 27th June, 1870, as communicated to Parliament, were to continue, no future seizure like the present could occur ; and if the Treaty of 1818 and the the Acts consequent thereon are superseded, this judgment ceases to have any value beyond its operation on the case in hand. The first article of the Convention of 1818 must be construed, as all other instruments are, with a view to the surrounding circumstances and according to the plain meaning of the words employed. The subtleties and refine- ments that have been applied to it will find little favour with a Court governed by the rules of sound reason, nor will it attach too much value to the protocols and drafts or the history of the negotiations that preceded it. We must assume that it was drawn by able men and ratified by the Governments of two great powers, who knew perfectly well what they were respectively gaining or conceding, and took care to express what they meant. After a formal renuncia- tion by the United States of the liberty of fishing, thereto- fore enjoyed or claimed, within the prescribed limit of three marine miles of any of our bays or harbours, they guard themselves by this proviso : " Provided, however, that the Amei-ican fishermen shall be permitted to enter such bays or harbours for the purpose of shelter and repairing THE J. H. NICKBRSOK., 101 damage therein, of purchasing wood and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent them taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." These privileges are explicitly and clearly defined, and to make assurance doubly sure, they are accompanied by a negative declaration excluding any other purpose beyond the purpose expressed. I confine myself to the single point that is before me. There is no charge here of taking fish for bait or otherwise, nor of drying or curing fish, nor of obtaining supplies or trading. The defendants allege that the NiQkerson entered the Bay of Ingonish and anchored within three marine miles of the shore for the purpose of obtaining water and taking off two of her men who had friends on shore, and that neither the master nor the crew on board thereof, in the words of the responsive allegation, were "fishing, preparing to fish, nor procuring bait wherewith to fish, nor having been fishing in British waters, within three marine miles of the coast." Had this been proved, it would have been a complete defence, nor would the Court have been disposed to narrow it, as respects either water, provisions or wood. But the evidence shows that the allegation put in is untrue. The defendants have not claimed in their plea what the counsel claimed at the hear- ing, and their evidence has utterly failed them. The vessel went in, not to obtain water or men, as the allegation says, nor to obtain water and provisions, as their witness says ; but to purchase or procure bait (which, as I take it, is a preparing to fish), and it was contended that they had a right to do so, and that no forfeiture occurred on such entering. The answer is, that if a privilege to enter our harbours for bait was conceded to American fishermen, it ought to have been in the Treaty, and is too important a matter to have been accidently overlooked. We know, indeed, from the State Papers, that it was not overlooked — that it was suggested and declined. But the Court, as I have already intimated, does not insist upon that as a 102 TICE-ADMIRALTY COURT. reason for its judgment. What may be justly and fairly insisted upon is that beyond the four purposes specified in the Treaty — shelter, repairs, water and wood, — here is another purpose or claim not specified, while the Treaty it- self declares that no such other purpose or claim shall be received to justify an entry. It appears to me an inevit- able conclusion that the J. H. Nickerson, in entering the Bay of Ingonish, for the purpose of procuring bait, and evincing that purpose by purchasing or procuring bait while there, became liable to forfeiture, and upon the true construction of the Treaty and Acts of Parliament, was legally seized. I direct, therefore, the usual decree to be filed for con- demnation of vessel and cargo, and for distribution of the proceeds according to the Dominion Act of 1871. Blanchard, Q.C, for Government. Shannon, Q.C, for vessel. THE SARAH. (Delivered April igxH, 1871.) Order of Proceedings against a Derelict. — The salvors of a derelict ship should, in the first instance, give notice to the Proctor for the Admi- ralty, who will forthwith extract a warrant. After the issue of the derelict warrant, the salvors should move for leave to intervene. If the case be one of only trivial importance, the Court will then direct the filing of affidavits in proof of claims, etc. In cases of greater moment, it will sanction an act on petition with the usual pleadings, and proof under the rules of 1859 ; and when there are claims represented by several proctors, or subsequent to each other, a consolidation will be ordered, as in other cases of salvage. If a private warrant be extracted in the interim between giving notice to the Admiralty Proctor and his taking proceedings, it will be disallowed on taxation. The ship Sarah, laden with a cargo of 1,440 bales of cot- ton, while on a voyage from Galveston, Texas, for Bremen, THE SAKAH. 103 was abandoned at sea, found by the steamship Califor- nia, and brought into Halifax. The salvage services ren- dered were of a highly meritorious nature, and the value of the property saved very great. A warrant having been taken by the salvors on the 13th March, 1871, and a warrant extracted on the same day by the proctor for the Admii-alty, under the rules, section 22, and the salvors having proceeded for a default under section 10 (which the Court granted with reservation of the right), and it having now been intimated to the Court that the owners of ship and cargo were preparing to exhibit their claims, and give bail under section 22, a question arose as to the mode of proceeding in order to determine and pro- tect the interests of the salvors. It appeared by the forms under the rules of the High Court of Admiralty, 1st January, 1860. (No. 52 Append, to William & Bruce, 120), that the salvors in derelict, as in other cases, file their petition — the practice in this Court of late years having been to put in affidavits only without pleadings. A search, therefore, was directed into the prece- dents since the commencement of the new series in 1834. It was thereupon discovered that the practice had not been uniform, and the Court announced that it would adopt the following as that which seemed to be the most convenient, and in conformity with the spirit of the rules. There ought in no case to be a second arrest, although that occurred in the case of the Ajax, when the salvors extracted their warrant, 28th September, 1838, and the Queen's advocate delayed extracting his until the 31st January, 1839. Where a ship is derelict notice should be given to the proctor for the Admiralty, that he may proceed at once, as it is his privilege and duty to do, and a private warrant in the in- terim will be disallowed on taxation, as was done in the case of the Wexfoi-d in 1837. The course will be for the salvors, after the issue of the derelict warrant, to move for leave to intervene. The Judge will then, in cases of trivial importance, direct the filing of affidavits ; in others, he will sanction an act on petition with the usual pleadings and proof under the rules of 1859, 104 VICE-ADMIEALTY COURT. where there are claims represented by several proctors, of subsequent to each other, with a consolidation thereof, as in other cases of salvage. On the 19th April, 1871, the learned Judge pronounced the following preliminary decree : " I have read all the papers on file, and find the proof of the ownership of the vessel sufficient. The proof of owner- ship of the cargo is not complete. It is clear that the cargo should be discharged, and the ship and cargo must be ap- praised with a view to salvage. Our commission issues under the practice (Williams & Bruce, 233) combining unlivery and appraisement, and I direct that it shall be taken out from the two forms, Nos. 233 and 234, combined. The marshall will consult the interest and convenience of the claimants in the manner and place of unlivery. They will provide the labour and funds necessary for the work, I presunfe, and the execution of the decree under his super- intendence, and he will see that the cargo is properly handled, and stored. Two appraisers would be advisable, and the marshall will select them with great care, and, if possible, with the consent of the proctors for the claimants and salvors. They must appraise the different lots in the manifest separately, as well as the ship, and as the appraise- ment will most probably be the foundation of the decree for salvage, and if questioned, will lead to difficulty and delay, every pains should be taken to ascertain and return the fair value. " J. N. EiTCHiE, Q.C.. for salvors. Blanchaed, Q.C, for vessel. McDonald, Q.C, for cargo. THE ANN. (Delivered July 3Ist, 1871.) Seaman's Wages. — Action by master and three seamen for their wages. The accounts produced by the master, who had also acted as ship's bus- THE ANN. 105 band, were extremely unsatisfactory and unreliable. He claimed a balance due him of $317.80, but failed to establish his right to more than $34.80. There was nothing against the demand of the other promovents, and the amounts claimed were awarded them. The sums so recovered, being all under $40% and therefore might have been sued for before two Justices of the Peace or a Stipendiary Magistrate. Held, that the promovents should not have their costs. The promovents in this ease were the master and three Beamen of the schooner Ami, who Ubelled the vessel in .order to obtain the wages which they claimed to be due and unpaid to them, in the following amounts : — Peter Grimes (the master) claimed $317.80 ; Simon Grimes, $32.03 ; Charles Joyce, $21.17 ; and Christmas Brand, $19.66. Eesponsive allegations were put in on behalf of the owner ; and, after hearing and argument, the Court pronounced the following decision : Peter Grimes, the principal promovent in this case, was ex- amined before me at the hearing pursuant to the rules of 1859, and I was extremely dissatisfied with his evidence. It appeared by the book he then produced that he was not merely master but ship's husband from April, 1870, to January, 1871, and that he received in that time for freights and charter lading $2,095. These sums he balances ex- actly by payments to the OAvner ; disbursements and wages, amounting to $650.95, of which only $101, he says, were for himself, leaving $283 due to him. This is a most improbable tale. I see by one of the entries in the book, that he has a wife in Arichat, and that.only $101 out of upwards of $2,000 should be retained by Grimes for her subsistence, and his own, is what I am not disposed to credit. The last eight pages of the book contain the particulars of the alleged pay- ments and disbursements, including $588 for the owner. These last, occupying two pages, he swore, were the original entries, and that he had the book with him during the voyages. He said, " I wrote the charges in the book at the time they occurred," but the appearance of the book and the writing of the eight pages so completely belied this statement, and I expressed at the time so strong an opinion on it, that he admitted that the original entries were in another book Y-A.R. 8 106 VICE-ADMIRALTY COURT. he had on board. Two books have accordingly been since filed, ■which I have examined, and find them utterly worthless. Here is a case then where there are no vouchers or original entries, and no account of all these voyages that the . Court can act or depend upon. Yet the master's claim for $283 out of the $317 in his afiidavit depends entirely on the result of his dealings with the ship, and the ascertaining of a true bal- anccj which there are no means of getting at, and no evi- dence to sustain ; for I regret to say that I can have no confidence in the integrity or fairness of the testimony given by the master himself. I have before me also the ex- amination of Mr. Pitts, in opposition to his," Grimes, he says, "stated last spring that thevessel owedhim £10 or £11, besides a share of the profits. " This sum of £10 or £11 was for wages due to Grimes as a seaman before his employ- ment as master, and is reduced in the libel to $34.80, which I shall allow him, not being open to the suspicions and lincertainties which attach to the large claim, and render it impossible for the Court to recognize it. There is no reason to distrust the evidence in support of the claim of the other three promovents, and I award to Simon Grimes $32.05 ; to Charles Joyce, $21.17; and to Christmas Brand, $19.35. It is obvious that the main purpose in coming into the Admiralty, and incurring the heavy expenses of this Court, has been defeated. Four separate claims of small amount have been recovered, all of which might have been sued for be- fore two Justices or a Stipendiary Magistrate, and the wages and expenses levied on the vessel, under chapter 75 of the Eevised Statutes, sec. 22. This simple and inexpensive pro- cess would have afforded to the four plaintiffs as effectual a remedy as the suit that has been brought here, and I feel it incumbent on me to certify that such is the fact, pm-su- ant to the 27th section of the same chapter, which deprives the plaintiffs of the cost of this suit. H. McLean, for promovents. W. Walsh, for vessel. VICE-ADMIKALTY COURT. 107 THE REGINA. (Delivered November 15TH, 1871.) Derelict. — This vessel, while passing down the Gulf of St. Lawrence, struck on a reef, lost her rudder, and became utterly unmanageable. In this condition she was found by the salvors, who, responding to signals of distress, took the crew off and landed them in Sydney, Cape Breton, then returned to the Regina, and, after considerable exertion, brought her into the same port. The net proceeds of ship, stores and cargo were $7,105. Held, that the salving schooner should receive $500, and the ten seamen on board her $200 each. Directions given as to proper method of executing appraisement of ship and cargo. The barque Regina, on a voyage from Quebec to South- ampton, laden with timber, struck on a reef while passing down the Gulf of St. Lawrence, and after beating against it for some time floated off again, but immediately became water-logged, and, through the loss of her rudder, utterly unmanageable. In this condition she was encountered by the schooner Ocean Belle. In response to signals of dis- tress the crew were taken off, and the vessel abandoned. The crew were brought into Sydney, Cape Breton, and the same day the salvors proceeded in boats on board the Regina, took possession of her, and, after some days' severe exertion, succeeded in bringing her safely into the harbour of Sydney. Certain informalities having occurred in the com-se of the proceedings taken by the salvors, the Court, on October 7th, 1871, gave judgment thereon as follows: — "I have read the papers on this case, and find that the proper course has not been pursued. This is not the case of some trifling articles found derelict, but of a ship and cargo appraised at nearly $10,000, which must be sold to pay salvage and costs, unless the owners appear and give bail. I have been obliged to establish it as a rule, which the practitioners well know, never to award salvage until the net proceeds are paid in or bail filed. Unless there was a jast expectation that the owners would appear, and, acquiescing in the appraisement, would give bail, the com- 108 ViCfi-ADMIKALTt COIJET. mission that was asked for and executed is utterly useless, and -will probably impeach the sale as too high. The form also was mistaken when the commission was directed to the appraisers, who ought not to have been empowered to choose and swear a third party, which last, very pro- perly, they have not done. I doubt, too, the wisdom of naming a submarine diver, one of the appraisers, when the principal salvor is of the same profession , This com- mission and appraisement, I presume, will have to be abandoned. Three months from the return of the warrant will elapse on the 19th instant, after which I shall decree a monition. Eules, sec. 22, No. 164, mutatis mutandis. On a proper affidavit, under the same section, the Court will order a sale of ship and cargo, which, as the season is advancing, should be done at once, and ought to have been done when the commission of ap]3raisement issued, unless some reason existed therefor, of which I am uninformed." A sale having been made of ship and cargo, the Court, on the 15th November, made the following apportionment of salvage : — Proceeds of sale of ship and stores $1,505 00 Proceeds of sale of cargo 5,600 00 $7,105 00 Salvage allowed to Ocean Belle and master thereof, ■who was also owner $500 00 Ten seamen, at $200 each $2,000 00 $2,500 00 With costs. McDonald, Q.C, for salvors. M. B. Daly, for owners. VICE-ADMIRALTY COUKt. 109 THE S. V. COONAN. (Delivered November, 1871.) Derelict. — A schooner found by fishermen floating on her beam ends and entirely deserted, was, after considerable exertion, requiring the united efforts of thirty-two men, successfully brought into harbour. The sale of ship and cargo realized $954.60. Held, that the salvors should be paid out of that sum S153 for their labour, and $g apiece as salvage, making $441 in all. Ou the morning of the 7th of July, 1871, two fishermen, who were at their occupation, in an open boat, about four- teen miles off the coast of Nova Scotia, discovered a schooner on her beam ends, with the sails lying flat on the water, and about three miles distant. They pulled up to her and found the sea breaking over her, no living thing on board, and a number of other boats lying near. After con- sultation with the others, it was agreed to join all together and take the schooner in tow by means of a line fastened to the bowsprit, to which the boats, some six in number, were attached. They then made for the land, and con- tinued to tow her until night, although the weather became very thick, and a strong breeze sprang up. Eelinquishing the vessel for the night, they, with the addition of some others, making thirty- two in all, set forth again at day- break, and found her ashore on an island outside Jeddore Harbour, with the sea breaking over her. They immedi- ately proceeded to work her off the rocks by means of anchors set out ahead, and the tide being high, succeeded in getting her afloat, and, after a day's intense exertion, to a place of safety within the harbour. \ 110 VICE-ADMIRALTY COURT. The Court awarded salvage as follows : — Sale of ship, less expenses 93i8 oo Sals of cargo, less expenses 636 60 •954 60 Allowed to salvors for their labour, etc Si53 00 Allowed to salvors for salvage, viz., 32 at 9g each 288 00 di 00 With their costs. THE AECHITECT. (Delivered December 29TH, 1871.) Derelict. — One-half the net proceeds of sale awarded to salvors where no appearance or claim was entered on behalf of owners. The vessel Architect was found by the salvors drifting bottom up about two miles from land, and by them towed into port, and a large portion of her cargo, which consisted of timber, saved. No appearance was entered or claim made on behalf of the owners of either vessel or cargo, and the court made the following apportionment of salvage: Proceeds of sales m court ?756 So Charges thereon allowed 64 47 »692 33 Advocate General's Court fees 79 33 5613 00 One-half proceeds awarded to salvors 346 17 Balance in Court $266 83 VICE-ADMIBALTY COUKT. Ill THE HERMAN. (Delivered January, 1872.) Salvage by Man-of-War. — One of Her Majesty's men-of-war rendered salvage services to a derelict ship, but was not allowed by the Govern- ment authorities to make any claim therefor. The German barque Herman was discovered by the American schooner Julia Grace in a derelict condition off the coast of Nova Scotia. The barque had evidently been scuttled by the crew and then abandoned, and would un- doubtedly have sunk but for the efforts of the salvors. The Julia Grace gut a crew of men on board who by constant pumping managed to keep the barque afloat, and after much exertion she was brought within a few miles of the port of Halifax. The wind, however, being contrary, it was found impossible to make the harbour, and the vessel being in danger of going ashore, a telegram was despatched to Halifax for a tug. In response to the telegram Her Ma- jesty's ship Sphinx went down the harbour, and after search- ing for the barque all night found her early the following morning. At the request of the salvors a number of sailors were sent on board to relieve them and take charge, and the steamer then towed the barque into Halifax. The captain of the Sphinx, on behalf of himself and crew, made a claim for a proportion of the salvage which should be awarded. At the instance of the Court, a despatch was sent to the Secretary of the Admiralty in London, to the effect that the Court would award a portion of the salvage to the Sphinx, provided it was approved by authority. The following reply was received : — " Admiralty cannot sanction claim for salvage in case of Her Majesty's ship Sphinx, May accept any moderate sum owners may offer." 112 VICE T ADMIRALTY COUKT. Nothing was offered on behalf of the owners to the captain of the Sphinx, or to the crew. See on this subject The Nile, L. E. 4 Adm. 449, 33 L. T. E. N. S. 66, 33 L. T. E. N. S. 394, 35 L. T. E. N. S. 9, Lush, 878. THE ABBY ALICE. (Delivered June 20th, 1872.) Security for Costs. — Where the plaintiff, in an action on a bottomry bond, was resident out of the jurisdiction of the Court, although presum- ably a British subject. Held, that, on application being made therefor, he should be required to give security for costs, on the defendant making an affidavit of merits and of the defence being bona fide. Action on a bottomry bond brought by Mr. Pitts, agent for David Browne, resident in Antigua, and presumably a British subject — Eule nisi on af&davit for security for costs — Objections that the rule does not exist in the Vice- Admiralty Court, and that in the High Court of Admiralty it does not apply where there is a right, but only in cases of damage. This being the first case of the kind I have looked into it with care. There is nothing on the point in the rules of 1832 or 1859, and I resort only by way of analogy to the practice of the High Court of Admiralty and of our own Supreme Court. In the former, security for costs is required, where the plaintiff in a collision cause is resident out of the jurisdiction. (1 W. Eob. 326.) There the plaintiff was a Dane, and in most, if not all of the cases, the plaintiff was a foreigner ; but I can see no difference in principle between the holder of a bottomry bond resident at St. THE CHASE. 113 Thomas and at Antigua. They are equally beyond the jurisdiction of this Court, and no such distinction is known at common law. Where the plaintiff's right was clear, or was admitted, it would make a difference ; but here it is to be questioned, and I cannot examine the validity or invalidity of the bond at this stage of the cause. (1 W. Kob. 316.) Without attempting, then, to lay down any general rule which might lead to oppression, and looking to the authori- ties below, I am of opinion that the rule should be made absolute for a deposit or security of ^100. The point being new, I give no costs. Wms. & Bruce, 295 ; Coote, 38 ; 1 L. E. Admy. 335 ; Lush, 377 ; 2 Conkling, 119. The defendant having filed an affidavit only of the domicile of the plaintiff in Antigua, I shall require a further affidavit of merits, and of the defence being bond fde, before granting the rule. M. J. Gbiffin, for plaintiff. N. H. Meaghee., for defendants. THE CHASE. (Delivered August 14TH, 1872.) Damages to Wharves. — The steamer Chase was lying at her wharf in- the harbour of Halifax, when a storm of unusual violence arose with extraordinary suddenness, there having been no other indication of its approach than a falling barometer. Some additional precautions were taken so to moor her that she might ride out the storm safely, but these did not prove adequate, and, breaking away, she came into collision with several wharves, among them the plaintiff's, causing serious damage thereto. It appeared in evidence that other and more efi&cient methods might have been used to secure the steamer, and that had they been em- ployed, the probabilities were strongly in favour of her remaining fast to her wharf. Held, that she was liable for the damage done. V-A.R. 9 114 VICE-ADMIRALTY COURT. In this case, on an affidavit of the plaintiff that the Chase had run foul of his wharf at Halifax, and greatly in- jured it, on the 12th October last, a warrant issued in the ^sual form in cases of collision, and bail was put in in the sum of $1,000. The libel was filed 5th December, and .minutely described the circumstances of the alleged injury, the material allegations being that a gale having arisen while the steamer was discharging cargo at the Dominion Wharf, no steps were taken to secure her safety, although she had no anchors out or steam up, and was imperfectly fastened as described in the libel ; that none of the princi- pal officers were on board, and only two or three of her crew ; that it was blowing a violent gale from the south- east, with a very heavy sea running ; and in consequence of the careless and improper mooring of the steamer, and there being no one to look after her, the fastening slipped off, and she swung round to the eastward, and headed up the harbour, coming into collision with several wharves in succession, and ultimately with the plaintiff's; that the damage was occasioned solely by the carelessness and neglect of the owners and crew of the said ship or steamer in not mooring her securely and taking proper steps to prevent her drifting ; that she drifted up the harbour, bows on, for about four hours, and during the whole of that time no effectual steps were taken to secure her or prevent the damage ; that the plaintiff's wharf was strong and in good order, and that the damage done thereto exceeds $800. The responsive allegation put in denies, seriatim, all the allegations in the libel, putting the plaintiff upon proof of all, without exception ; a mode of pleading of which the Court cannot approve, as many of the plaintiff's allegations are indisputable, and the answer should have distinguished which of them were untrue or exaggerated, as many of these allegations are. The answer then avers that as the storm was seen approaching, the steamer being fastened in the usual way, additional steps were taken to fasten her still more securely, and that she was properly, skilfully, safely, and securely fastened and attached to the wharf where she lay, and the wharf next adjoining to the south- THE CHASE. 115 •ward, by hawsers of great strength, and would have there .safely remained had not one of the spiles to which she was fastened given away, from the great strain upon it, caused by the heavy seas and hurricane, which bent it over and pulled it from its position; that the steamer thereupon went astern with great force, and the bow fastenings parted, and she went still further astern until she struck the wharf to the north, and then the others, as described ; that the master, officers, and crew used every exertion and their utmost skill to get the vessel to swing and prevent her doing damage, and were guilty of no carelessness or negli- gence whatever ; and that the doing of said damage was wholly and entirely the result of inevitable accident, and of «ircumstauces which the master and crew could not have foreseen, and over which they had no control. Besides the plaintiff's, five other actions have been brought against the Chase in this Court, depending nearly upon the same facts, and involving claims of very large amount. A vast body of evidence has been taken in these suits, audit was agreed by the counsel that the evidence, so taken in any of the suits, might be used in evidence in all the other suits re- lating to the same question. They have been ready for hearing for some months, but various causes have pre- vented their coming on until recently. The present was heard, as a test case, on the 8th ulto., before me, with the assistance of Captain Nicholson, of H.M. ship Royal Alfred, when the whole of the evidence was read, consisting of twenty-eight depositions on behalf of the plaintiff, and fifteen for the defendant, and the law and facts of the case were fully and ably argued. No ques- tion was raised in the Eesponsive Allegation nor at the hearing as to the jurisdiction of the court ; but as several cases bearing upon it were cited and commented on, and this is the first case of the kind in this Province, it is neces- sary shortly to consider the foundation on which it rests. By the Imperial Act of 1861, 24 Vic. cap. 10, sec. 7, extending the jurisdiction and improving the practice of the High Court of Admiralty, the jurisdiction was given for the first time " over any claim for damage done by any 116 VICE-ADMIKALTY COURT. Bhip," -without saying to whom or what such damage may have been done ; and these words have led to several decisions in the English "Courts which are not yet reconciled to each other. In the Imperial Act of 1863, 26 Vic. cap. 24, sec. 10, the same jurisdiction is given to the Vice- Admiralty Courts throughout the empire in respect of claims for damage " done by any ship." The words are identical, and all, or nearly all, the cases, apply to us as well as to the home shipowner or merchant. In the case of the Robert Pow, Brown and Lush, 99, decided in 1863, the court decided that under the above sec. 7, the damage meant damage done by collision, that is, of ship against ship, and did not ex- tend to the case of damage done by a steam-tug to the vessel she was towing, by negligence in towing, if the- damage was occasioned, not by collision, but by the vessel towed taking the ground. In the Uhla, decided in 1867, 19 L. T. E. 579, 2 L. E. Admiralty 29, it was held that the- section conferred jurisdiction for damage done by a ship to the breakwater at Falmouth. " I take it," said Dr. Lushing- ton, " that the section confers jurisdiction over every case of damage done by any ship. I happen to know," he adds, " that this section was inserted on purpose to give jurisdic- tion in a case like the present. I am perfectly satisfied of this, but was somewhat staggered by the case cited of the Robert Pow ; but, on looking at it, I find that it does not affect the present case, and that the court has jurisdiction." These two cases are cited by the Court of Queen's Bench in the case of Smith v. Brown (25 L. T. E. 814, L. E. 6 Q. B. 729), where it is said, as to the latter, that the damage had been actually done to the breakwater by the ship itself, and the case therefore came within the very words of the Act. This was decided in May, 1871. In the Industrie, decided in January, 1871 (24 L. T. E. 446, L. E. 3 Adm. 303), the Blue Bell, in consequence of an unskilful manoeuvre of the vessel charged, took the ground, and though her anchor was let go, dragged it and drove against the town wall of Hartlepool, suffering damage, for which the Industrie was held liable. " There THE CHASE. 117 has, no doubt," said Sir Robert Phillhnore, " been some fluctuation as to the extent of the jurisdiction of the Court of Admiralty in cases of damage, but I think it is now •estabhshed that this Court has jurisdiction where damage has been done or received by a ship, although there may not have been any collision between two or more ships." It is to be noticed that the 6th section of the Imperial Act of 1840, 3 & 4 Vic. cap. 65, giving jurisdiction to the High Court of Admiralty, among other things, over ■" damage received by any ship or sea-going vessel," has not been extended in terms to the Vice-Admiralty Courts. A ooo 00 — $65,000 00 Salvage awarded Alfred Whalen : To owner for loss of fishing voyage $5,000 00 To the master 1,250 00 Six men on Sylphide. I750 each 4,500 00 Five men remaining on board A Ifred Whalen at $450 each 2,^50 00 813,000 00 With costs of suit to be taxed. N. H. Meagher, Proctor for underwriters. Shannon, Q.C, Proctor for owners of cargo. McDonald, Q.C, Proctor for ship. EiTCHiE, Q.C, Proctor for salvors. THE WE 'KE HEBE. (Delivered 29TH March, 1S73. Collision. — The We're Here came to anchor in the harbour of Halifax on the night of November 5th, using only one anchor. On the 6th the Ben Nevis anchored beside her, and as it was alle.ged in too close proximity. On the morning of the 7th both vessels were apparently securely moored, and the captain of the former went ashore, leaving six men on board. In the course of the morning a gale sprang up, and the We're Here not being adequately moored she collided with the Ben Nevis. The men on board the former vessel did not act as experienced seamen should have done under the circumstances, and her captain made no attempt to get on board, while no negligence or want of seamanship was proved against the Ben Nevis. THE we're here. 139 Held, that judgment should be entered for the Ben Nevis for the damages and costs. Strictures made on evidence received in the Admiralty Courts. This case has arisen out of a coUision between the Be7i Nevis, a merchant brigantine, of 233 tons, and the We're Here, an American fishing schooner, of 56 tons, doing con- siderable damage to both vessels, on the 7th of November last, off George's Island, in the harbour of Halifax. The ■warrant was issued on the 9th, and there being a mistake in the name of the vessel, I authorized a second warrant on the 11th. On the 12th, I ordered each of the parties to bring in his preliminary act, and the proctor of the pro- movent to bring in his act on petition, which was filed on the 18th November. I gave this order under the rules of 1859, in place of proceeding under those of 1832 by. plea and proof, but would have been equally well satisfied, had the parties consented, as in the case of the Wavelet, in 1867, to have put in their evidence upon the preliminary acts without further pleading. The experience in this Court is, that the pleadings are of little use except to swell the costs, and rather hamper than promote the ends of justice. The rule, of course, in this Court, as in the other Courts, with whose practice all of us are more familiar, is that a party is bound by his pleadings — the plaintiff must recover secundum allegata et probata, but it is painful to a judge, when a material fact is wrongfully ad- mitted or wrongfully shut out by the carelessness, it may be, or the imperfect information of a practitioner. The argu- ments, therefore, addressed to me in this and in other cases, on the alleged admissions of defendants in the pleadings, are of little avail in my eyes, or at least of much less avail than the evidence. Another motive I had for preferring an act on petition was the refusal of the plaintiff to admit the affidavit of Murray, a principal witness for the defendant, who was about "to leave the Province, this Court being prompt in action and having a larger scope than the Courts of Common Law, or even of Equity, in preserving and receiving evidence. "It is a well-known principle," says Dr. Lushington, that eminent and distinguished jurist 140 VICE-ADMIEALTY COURT. whom we have just lost, " a principle confirmed by authority, that Courts of Admiralty are to proceed levato velo, that is, with the utmost expedition. In order to carry this prin- ciple into effect this Court has, both in public matters and in civil suits, been accustomed to receive evidence which would not have been admitted in other Courts — for instance, affidavits sworn almost in every way before Justices of the Peace, commissioners in chancery, and so forth, and, in ex- ceptional cases, even evidence not under oath." The Peer- less, Lush. 41. Murray's affidavit was filed November 15th; Ingall's, a material witness for the plaintiff, on the 18th. The other witnesses for the defendant, on the 28th and 29th, and the plaintiffs on the 4th and 5th December. The practice of taking affidavits, authorized by the Eules of 1832, in pro- ceeding by act or petition and in cases of derelict, was thus pursued in the case in hand, but greatly improved by the system I have recently adopted, in which every deponent in Halifax is subjected to a cross-examination at the Eegistry, and the value of his evidence proportionably enhanced. The whole of the evidence under this practice being dis- closed, as it proceeds, to both parties, which is more in analogy with the Eules of 1859 than under the old system of secret examinations and publication after the evidence is closed, the defendant's proctor applied upon affidavit for leave to contradict one of the plaintiff's witnesses, which I per- mitted, upon the point indicated and no other ; and further affidavits were filed for the defence on the 13th of January. Bail having been given, the case came on for hear- ing on the 17th January before me, assisted by Captain Scott, of the Eoyal Navy, as assessor ; and my time having been completely occupied in the interim by the business of the Supreme Court, I have been unable till now to give judgment, and have marked the successive stages of the cause as a guide in other cases in the future. The We're Here came into Halifax harbour on the night of 5th November, and came to an anchor inside of George's Island, using the starboard anchor and about thirty THE we're here. 141 fathoms of cable. The purpose for which she came in does not appear, and her right to come and to he here was questioned at the hearing ; but I cannot allow any question of that sort to enhance her liability in this suit. On the 6th of November, about ten o'clock, the Ben Nevis came to an anchor much too close, as the We're Here alleges, for the safety of either vessel ; and whether she was so or not is one of the disputed points in this inquiry. On the 7th both vessels were, as each supposed, securely moored, and the captain of the We're Here, after breakfast, or, as one witness says, after dinner, at one o'clock, went ashore, to transact some business of the schooner, leaving no one in particular in charge, and no mate (for, as is usua.l in these small vessels, there was none), but all hands, six in num- ber, on board, all of whom the master describes as experi- enced seamen, which the evidence by no means bears out. Besides the 30 fathoms of cable which were out on the starboard or fishing anchor, there were 140 fathoms more cable on that anchor on deck, ready to let go, and a second anchor hanging from the port bow-rail with 60 fathoms of cable attached to it, all ready to let go. The sufficiency of this mooring, which was probably enough in ordinary weather, but was quite unable to face a gale, was one of the main inquiries at the hearing. Mr. Allison, the meteorolo- gist, was examined viva voce, and gave an exact account of the falling of the barometer and the speed of the wind on the 6th and 7th. On the 6th, at noon, the barometer stood at 31-35 ; on the 7th, at 29-743. At 3 p m. on the 7th, it was 29-574 ; at 6 o'clock, 29-271 ; at 9 p.m., 28-970 ; at mid- night, 28-856. The wind was travelling, on the 7th, at 6 a.m., south-west, 7 miles an hour ; at 9, south, 8 miles ; at noon, south, 12 miles ; at 3 p.m., south, 22 miles ; at 6, south-south-east, 23 miles, hardly a gale. Then, he says, at 9 p.m. it was south east, 38 miles — 30 is considered a gale. The gale began at 6.30 and was at its highest about 10 o'clock. The wind backing was an indication of stormy weather. Mr. Allison said it was blowing 21 miles on the morning of the hearing, which was abundant warning, as the assessor said, to any prudent master to get on board 142 VICE -ADMIRALTY COURT. his ship. Without holding the captain of the We're Here to an inspection of the harometer, which he might not have thought of or had access to. it was unfortunate that, with the wind blowing, from 3 to 6 p.m., 22 miles an hour, having risen from 8 miles when he went ashore, he should not have made successful efforts to resume command of his vessel, when the collision might possibly have been averted. For, between 5 and 6 p.m., she drifted, when after the shifting of the wind, she had probably fouled her anchor, and the men on board having payed out 30 fathoms more chain, but not having succeeded, according to the prepon- derance of testimony, in dropping the second anchor, she collided with the Ben Neris, cross-wise upon her, so that her jibboom and bowsprit were between the foremast and mainmast of the schooner, near midships, and so con- tinued for about two hours, and till the foremast Ivas cut by order of the Ben Nevis. The accounts of this transaction given by the two parties, as is usual in such cases, are very contradictory, and a Court must be content with taking the salient points of the case and weighing its probabilities. The master, mate and two of the seamen of the Ben Nevis estimate the distance at which they anchored from the We'i-e Here at a quarter of a mile, in which they are confirmed by Ingalls. The master and seamen of the We're Here speak of the distance as 300, and Murray, 200 feet. Owen, in his affidavit, calls it 300 feet ; but, in his cross-examination, he says : " The Ben Nevis was anchored about 300 yards from my vessel on the morning of the 7th November." It is remarkable that, though he was re- examined by his counsel, under protest, no attempt was made to reconcile this discrepancy ; and yet I cannot help thinking that it originated in misapprehension. Distances are matter of conjecture measured by each party too much in accordance with his inclinations and his interest, but the weight of evidence here is clearly with the larger space. So, also, on the other controverted facts, the time of letting go the second anchor of the We're Here, the mooring of the Ben Nevis, the conversations between the two as they THE WE RE HERE. ' 143 approached, and the other circumstances of the case, which I need not go into in detail, I cannot escape from the con- clusion that the history given by the plaintiff's witnesses is the truer, as it is the more probable, statement of the two. The cases cited at the hearing I have, of course, examined, and have looked into many others, as cases of collision, notwithstanding those of the Chase, may be considered here as of rare occurrence. The decisions, therefore, of the English Courts I shall briefly review. There are two material circumstances here to which the Courts attach great importance. The We're Here was moored only with one anchor, and she ran into the Ben Nevis when at anchor. Let us look into the cases, in their order, upon those two points. In the Massachusetts, 1 W. Eob. 871, in 1842, Dr. Lushington held the owners liable for a collision occasioned by the dragging of the anchor of the damaging vessel, the anchor being too light to hold the ship. In the Volcano, 2 W. Eob. 344, in 1844, he left it as a, question for the Trinity Masters whether it would not have been more seamanlike and proper precaution to have dropped a second and a larger anchor; and they found that the Volcano was to blame in not doing so, and this though she was one of Her Majesty's ships. In the Bothnia, Lush. 52, in 1860, it was recognized as the rule that a plaintiff, whose vessel has been run down at anchor, may charge negligence generally ; and the collision being proved, the burden of proof is thrown upon the defendant to establish his defence. In the Annapolis, 5 L. T. E. N. S. 326, in 1861, it was again held that, in causes of damage, when a vessel in motion and one at anchor come into collision, it lies upon the vessel in motion to excuse herself by showing inevitable accident or a like defence. In the Nortlmmpton, cited in McLachlan on Shipping, 281, the facts were that a ship lying at anchor in the Mersy, began to drive before the wind and tide and to drag her anchor, and she ultimately came into collision with another vessel ; but she was held answerable for the damage nevertheless in consequence of not dropping a second anchor. 144 VICE -ADMIRALTY COURT. In all these collisions the question is, which party is in the wrong ? In the American case of the James Gray, 21 Howard, 194, the late Chief Justice Taney said : " The mere fact that one vessel strikes and damages another does not of itself make her liable for the injury. The collision must in some degree he occasioned by her fault. A ship properly secured may, by the violence of a storm, be driven from her moorings, and be forced against another vessel in spite of her efforts to avoid it. In the Ldgo, 2 Haggard's Admiralty, 360, Sir C. Robinson said : " The law requires that there should be preponderating evidence to fix the- ioss on the party charged before the Court can adjudge him to make compensation." The doctrine of inevitable accident, which entered so- largely into our enquiry in the Chase, I forbear from touch- ing here, as all the leading cases were then reviewed and commented on. In the view I take, there was no such accident here, otherwise the defendant would be discharged.. It is true also that, if negligence or want of seamanship' had been established on the part of the plaintiff, such negligence would have affected, perhaps destroyed, his right of recovery. This sufficiently appears from the cases in Fisher's Digest, 8103; 2 Haggard's Admiralty, 358; 2 Moody & Eob. 290, and others. But I am of opinion that no such negligence has been shown, and therefore that tha plaintiff must have judgment for his damages and costs. Le Noir, Q.C, for promovents. EiGBY, Q.C, for respondents. THE W. E. WIEB. 145 THE W. E. WIEE. (Delivered Mav 29TH, 1873.) Suit for Possession. — J. H., when building a small vessel, was fur- nished with supplies therefor by DeL., who put into the vessel, upon the whole, a larger sum than J. H. did. Afterwards it was agreed that DeL. should own half the vessel, and, in addition to this, he took a mortgage from J. H. previous to the completion and registry of the vessel. It was filed at the Custom House, but could not be registered as there was no registry of the vessel. On her completion the vessel was registered in the name of J. H., and no mention made of DeL. as part-owner. DeL. subse- quently sold her to one C, who registered as owner under his bill of sale, and then J. H. instituted proceedings against them both to regain posses- sion. Held, that the Court could not cancel the registries, nor order a sale, as the parties had applied to the wrong Court; but J. H. and DeL. were strongly advised that they should have an account taken to ascertain the amounts respectively due them, and should sell the vessel to the best advantage. This suit was instituted 28th March, 1872, by John Handlon, the registered owner of the schooner W. E. Wier, 41 tons burthen, against Samuel DeLisser, claiming to be part owner and Mortgagee, and William Collins, a pur- chaser of the vessel from him, and registered as owner under his bill of sale. The plaintiff attacks the mortgage as fraudulent and illegal, and claims possession of the vessel from the defendant. This is a case of possession, therefore, and the warrant was issued under the regulations, Section 20, and in the Form No. 31. But the affidavit on which the warrant issued and the object of the suit are very different from anything contemplated by the regulations of 1832. They are founded upon the Imperial Act of 1863, 26 Vic, cap. 24. sec. 10, sub-sec. 9, giving jurisdiction to the Vice- Admiralty Court's over claims between the owners of any ship registered in the respective possessions in which such Courts are established, touching the ownership, possession, employment or earnings of such ship. These same words V-A.E. 11 146 VICE-ADMIKALTY COUKT. are used in the Act of 1861, 24 Vic, cap. 10, sec. 8, giving a like .jurisdiction, for the first time, to the High Court of Admiralty, but adding that the Court may settle all accounts outstanding and unsettled between the parties in relation thereto, and may direct the said ship or any share thereof to be sold, and may make such order in the pre- mises as to it shall seem meet. This is one of the cases which has occasionally occurred in this Court where its restricted power, as compared with that of the High Court of Admiralty, has worked injury to suitors, and made the wisdom or motive of the restriction difficult to fathom. All the facts of this case are now in proof in this Court, and it is the interest of both parties to make an end of it here, rather than waste the whole subject matter by a second suit in Equity. The defendant's counsel at the recent hearing, though I suggested the difficulty, raised no ques- tion as to the jurisdiction. Yet I shall be cautious in assuming any power which does not properly belong to the Court I am now presiding in. Handlon, a fisherman, not a shipwright, began to build this little craft in 1871, and DeLisser, who had capital and credit, agreed to furnish the supplies, and no doubt put into the vessel a much larger sum than Handlon,^ie latter contributing his labor and what funds he could com- mand. By-and-by, it was agreed that DeLisser should own half the ship, and the fact of his accounting himself, and claiming to be half-owner, is shown conclusively by his notice of 27th September, 1871, set out in his defence. But he claimed also as the holder of a mortgage from Hand- lon for $1,000, executed 10th June, 1871, which is in proof, and is rather a singular document. It is in the Form J., in the Merchants' Shipping Act, 1854 ; but there having been no builder's certificate and no registry, it is founded on carpenter's measurement and carpenter's tonnage, differ- ing widely from the measurement tonnage in the register, the latter indeed being described as 92 tons in place of 41-12. It is endorsed as presented at the Custom House in Liverpool on the 10th June, 1871, under the hand of Mr. Bryden, who states in his evidence that he keeps files THE W. E. WEIE. 147 ■of incumbrances on vessels that are not registered, ready to be put on record when the register is taken out, and minutes on the back the date of filing. He adds, with naivete', " I know of no authority for it in the Shipping Act or instructions to Eegistrars of Shipping." There is cer- tainly no such authority, and, therefore, a Court may well ask, why does a public officer, and especially an officer of Eegistry, acting under Statute, assume to do what he has no right to do ? By the 66th section of the Act of 1854, a mort- gage of a ship shall be in the form marked " I " in the Schedule thereto, or as near thereto as circumstances will permit. It should contain the number and the date of registry, and the registered measurement and tonnage, and must be executed by the registered owners. A mere literal deviation from the form, the omission of a date, or a clerical mistake, will not vitiate it. Fisher's Digest 7906, 85E.L. &E.218. But the essentials must be there. By the 11th section of the Merchant Shipping Amendment Act, 1855, if a mortgage contains any particulars other than the form and particulars prescribed and approved for the purpose, by or in pursuance of the Merchant Shipping Act, 1854 ; no registrar shall be required to record the same without the express directions of commissioners of Customs. It is wise, therefore, for a registrar of shipping to abstain from indors- ing or interfering with a mortgage that is not duly executed according to the Statute. A mortgage or bill of sale of a ship before registry had better be filed with the registrar of deeds, under the Eevised Statutes, cap. 119. than in the Custom House, which has nothing to do with it. In the present case, notwithstanding the disclaimer of Handlon, and the mass of contradictory evidence, I believe that the Custom House officer acted in good faith, but the matter was managed in a most unbusiness like fashion, and has led to all the difficulties in this suit. Mr. Bryden did not know that DeLisser's name should have been on the register, as a joint-owner, but he ought to have insisted on a regular mortgage being executed by Handlon for $1,000, and; at all events, on a re-execution of the former, and an acknowledgment so clear and formal, that it could not be 148 VICE-ADMIBALTT COURT. disputed. Under the mortgage as it stands, I am of opinioo that it was wholly ineffective to pass title, and that the sale to Collins, under that mortgage, and the subsequent registry are null and void. The case of Bell v. The Bank of London, 3 Hurl, and Nor. 730, differs from it altogether. There, it is true, the mort- gage of the ship was dated and executed some days before the registry, and so appears, as in this case, on the face of the transactions transmitted to the chief registrar of ship- ping, but the only objection to it in point of form was the des- cription of the ship as the City of BurkeUes instead of the City of Brussels, which the Court held to be substantially the same. What is to be done, then, with this case, so as to protect, if possible, the interest of both parties ? Collins I put aside altogether. He has either a joint-interest with DeLisser, or is indemnified by him, or has a remedy under his cove- nant. He purchases for $980 from a mortgagee for $1,000, the purchase discharging the mortgage within a trifle, and then it is agreed that the ship shall be held subject to the mortgage, an ingenious contrivance, but involving an absurdity which no Court could sanction. Handlon takes the registry in his own name, for his protection, as he says, while admitting the large advances and the rights of DeLisser. It is impossible to award him the possession of the ship without securing DeLisser ; and if he had possession he could neither sell nor mortgage till the register is cleared. DeLisser is a mortgagee, not as a stranger for an ad- mitted debt or a definite outlay, but as a part owner in security for his advances. Were I sitting in the Supreme Court, with Equity powers, I should have no difficulty in framing a decree directing an accounting between the two parties as joint owners — a sale of the ship, with a convey- ance from Handlon, after cancelling the illegal registries in favour of DeLisser and Collins, and an apportionment of the net proceeds of sale according to the adjusted rights of Handlon and DeLisser. THE W. E. WIER. 149 But aa I am sitting in the Court of Vice-Admiralty, I doubt my authority to make such a decree. In the case of the Idas, Bro. and Lush. 68, Dr. Lushington thought that the word "earnings" in the Act of 1861 gave the High Court of Admiralty an implied authority to take an account. Now, the Vice-Admiralty Act of 1863 contains, as I have already said, the same words as the Act of 1861, but omits the express powers in the latter Act. The utmost I could do, as I think, is to order an account before the registrar, having no Master in this Court, and no power to appoint one. I can neither cancel the registries nor order a sale. The parties, in fact, have got into the wrong Court ; but if ihey have good sense enough to know their own interest, they may have all the benefit of having got into a right one. They, Handlon, I mean, and DeLisser, should appoint an a,ccountant or referee, to ascertain the amounts due to them respectively in respect of the ship. Having adjusted ■these amounts fairly and equitably, they should combine with Collins in clearing the register, and sell the ship to ihe best advantage. The net proceeds should then be apportioned according to their respective claims, after de- ducting the costs of this suit. I throw out these suggestions in the meanwhile, reserving the terms of my decree, in the expectation that the parties and their counsel will adjust the whole matter without further reference to this Court. EiTCHiE, Q.C., for promovents. Shannon, Q.C, for respondents. THE THEEE SISTEES. (Delivered October 27TH, 1873.) Action on Bottomry Bond.— A vessel belonging to Quebec, having sailed from Halifax, bound for Cow Bay, in Cape Breton, encountered heavy gales and was compelled to put back, after having been at sea for forty-three days. A survey having been held, she was pronounced to be 150 VICE-ADMIRALTY COURT. totally unfit to proceed on her voyage unless refitted and repaired. The owner was then at Halifax, and being unable to procure funds, applied to one G. R. F. for a loan on bottomry, and G. R. F. advanced the sum required. The vessel was already mortgaged to G. B. H., in Quebec, but of this fact G. R. F. had no notice. G. R. F. took proceedings to recover the amount due on the bond, and was opposed by G. B. H,, who set up the priority of his mortgage and denied the validity of the bond. Held, that all the ports of the Dominion must be accounted home ports in relation to each other, and therefore that the bond could not be enforced in Admiralty. Strictures on the want of jurisdiction in the Vice-Admiralty Court, and the consequent failures of justice in the colonies. This case comprehends a variety of questions to be dealt with in their order. The first step was a warrant issued by Mr. G. R. Frith on the 21st of June, as the holder of the bottomry bond for $1,900 with 10 per cent, interest, dated' at Halifax, 24th February last, and executed by the master with the written assent of Mr. G. F. Downs, the registered owner. This was followed up by an appearance on behalf of Mr. G. B. Hall, a mortgagee claiming priority of the bond, the mortgage bearing date the 20th August, 1872, for the sum of $1,800, and being recorded on the 21st at Quebec, where the vessel is registered. Then came claims for wages by the master, mate, and ^our of the sea- men, and lastly a claim of salvage, the vessel having been driven from her moorings, in this harbour, in the storm of 24th August. Of these questions that of the bottomry bond is by far the most important, both in its effect on the parties of this suit, and as involving a point new in this Dominion. Mr. Frith having gone into the Insolvent Court, I required his assignee to intervene under the Act of 1869, which he accordingly did and became the promovent in this suit on the 1st September. It was then agreed by the proctors of the assignee and mortgagee to waive any pleadings or evidence, substituting therefor a case setting out the facts, which was argued before me on the 18th of September, and the other claims having been argued on the 18th inst. and fully considered, I am now able to give judgment. THE THREE SISTERS. 151 The case which is concisely and well drawn, is as follows : — Halifax, September 17, 1873. IN THE COURT OF THE VICE ADMIRALTY OF HALIFAX, 1873. In re " Three Sisters." In December 1872 the brigantine Three Sisters, of Quebec, and of which one George Fallan Downs was the sole owner, and one Marmaduke Gra- burn the master, sailed under a charter party from the port of Halifax, bound to Cow Bay, C. B. Whilst in the prosecution of the said voyage she encountered heavy gales and was obliged to put back to Halifax, hav- ing been very much injured in her hull and rigging, and nearlj' all her ship's stores and provisions being exhausted, in consequence of her having been at sea for forty-three days. On her arrival at Halifax a survey was held upon her and she was found to be totally unfit to proceed on any voyage without being first refitted, repaired and revictualled. Upon the report of such survey being made, the Three Sisters being at that time under penalties to complete her voyage to Cow Bay, and the master and owner (who had accompanied the ship on her attempted voyage to Cow Bay and on her return to Halifax) being unable to procure funds to put the said vessel in a condition to proceed on her said voyage, one Gilbert R. Frith (the bottomry bond holder in this suit) under an an agreement for a bottomry bond, advanced the sum of $1,000 for the purpose of putting her in such condition. That subsequently to the said advance being made and after it had been expended on the ship, the said charter part_y was mutually rescinded. The sum of $1,000 being then found to be perfectly inadequate for the purpose aforesaid, and neither the master nor owner being able to procure the additional necessary funds, Mr. Frith agreed to advance a further sum, not exceeding $goo, to be joined with the said Si, 000 in a bottomry bond, for a new voyage, at a premium of $10 per cent. The bond (which is the one referred to in this suit) was given to Mr. Frith by the master, with the written consent of the owner. With the exception of a sum paid for wages on the attempted voyage to Cow Bay, the advance of $i,goo was actually made for sails, repairs and other necessaries, without which it was impossible for the Three Sisters to go to sea with any reasonable hope of safety. Mr. Frith was not aware, until after he had taken action on the bond, that any one held a mortgage on the ship, but had been given to under- stand by the owner at the time the bond was given that there was no incumbrance on the Three Sisters. That previously to the said agreement being made and the bond executed, the said brigantine Three Sisters had been mortgaged to one George B. Hall of Quebec, for the sum of ?i,8oo, by a mortgage bearing date the 20th day of August, 1872, and which was registered on the 21st 152 VICE-ADMIKAIiTT COUET. day of August, 1872 at Quebec aforesaid, to which port the said brigantine belonged. The amount secured under the said mortgage is still due and unpaid to the said George B. Hall. The subject for argument is the validity of the bond. J. Harvey Frith, Froctor of the promovent. C. B. Bullock, Proctor of Geo. Hall, the mortgagee. I have to add that, having inspected the certificate of registry, I find that, according to the practice and rule at the Customs, the mortgage was not endorsed thereon, and it appears by the case (to which the owner, however, is not a party to speak for himself) that he misled Mr. Frith by giving him to imderstand there was no incumbrance on the vessel. A telegram to Quebec, to ascertain the fact, would have been the most prudent course, as it turns out that his confidence was misplaced, and that either he, or, rather, that either his creditors or the mortgagee are to suffer. No question has been raised before the Court, on the form of the bond, the purposes to which the money was applied, nor the premium, in none of which, as I think, nor in the good faith of the lender, is it assailable. It is true that the advances were made for a new voyage, and that something might have been said on the necessity of so large an advance, which amounted, as appears by Mr- Downs' memorandum, annexed to the bond, to $2,190, exceeding by $290 the amount in the bond. But all this was done under the eye and with the approval of the owner, whose bond in fact it is, and it would not lie in his mouth to question it. But here we have a bona fide mort- gagee, to whom no notice is given, — nor is any notice required, if the bond be valid — raising the main question whether such a bond is legally binding, given on a Dominion vessel, in a Dominion port. The leading case, insisted on by both parties at the hear- ing, and cited in all the text books, is that of The Royal Arch, Swabey's Eep. 269, decided by Dr. Lushington in 1857. That vessel was owned in Nova Scotia, and it was held that a bottomry given by the master, with the assent of one of the owners, in New York, was good, and that a THE THEEE SISTEES. 153 mortgage would have been postponed to the bond, had not the time been extended by a subsequent instrument, of ■which no precedent could be found. But this decision was founded upon the fact that New York was a foreign port. " It is true," said Dr. Lushington, " that New York is not distant from Nova Scotia, but though distance may be all-important where the consent of the owner has not been obtained, yet I do not think such reasoning applies to cases where such consent has been given." " Upon the best consideration I can give this question," he added, "and assuming the ordinary requisites, such as want of credit, necessity, etc., to exist, I think that such a bond would be valid against the owners, and might be sued on in this Court." Then he takes the distinction, which he had previously noted, between such a bond, and a bond granted by the owner himself in his own country (or by the master, I would add, with the assent of the owner) before the voyage commences." " It appears to me," he says, " that under all ordinary circumstanees, it is not competent to the master, with the consent of the owner, to grant a valid bottomry bond upon a British ship lying in a British port, for a new voyage, such bond to be suable in this Court." He then gives his reasons, the first and most material of which is, because such a bond would create, if valid, what may be termed a secret lien on the ship, with- out what the law would consider necessity, and the con- sequence would be that subsequent (and, I might add, a fortiori, preceding) mortgagees might be injuriously affected." This doctrine is affirmed by the Judge in the case of the Heligoland, Swabey, 491, in 1859, where he says : " I think that the authorities show that if the owner of a British ship in England were to raise money upon a bottomry bond for any voyage whatever, the bond holder could not sue in the Admiralty Court." Both these decisions, it will be observed, proceed upon the restricted jurisdiction of the High Court of Admiralty, which 154 VICE-ADM1RALT1 COURT. the Imperial Act of 1861, the 24 Vic, cap. 10, though it has largely extended the jurisdiction on other heads, has not extended on this. In the American Courts, probably, said Dr. Lushington, a wider jurisdiction is conceded, and he cites the leading case of the Draco, before Judge Story, 2 Sumner, 157, where the validity of a bottomry bond by the owner in the home port is upheld. I may add that the American Courts are much divided on this question, as appears by the note in 1 Parsons, on Shipping and Admiralty, fol. 133-42, 1 Conk- ling's Admiralty, 275. Besides the intimation of the Su- preme Court of the United States, in Blaine v. The Charles Carter, 4 Cranch, 328, there are many cases supporting the view that there is no jurisdiction in Admiralty on a hypo- thecation by the owner in the home port. And notwith- standing the high authority of Story, J., and the Irish case in 2 Browne Civ. and Adm. Law App. 530, my own opinion leans strongly to that side. It was supposed at one time, and the Royal Arch rather favours that view, that the Courts of Vice- Admiralty from their position, and the absence of Ecclesiastical Courts, were clothed with a fuller jurisdiction than the High Court of Admiralty in England. This question I examined at large in the first decision I pronounced here, in the case of the City of Petersburg, in 1865, ante, p. 1, and the notion, if it ever had a foundation, is completely dissipated, I think, by the decision of the Privy Council in the case of the Avstralian, Swabey, 488, and the Imperial Act of 1863, the 26 Vic. cap. 24, which authoritatively defines the jurisdic- tion of all Vice-Admiralty Courts. The statute limits as well as defines it, and in some cases, as I have had frequent occasion to remark, to the manifest injury of the Colonies. Why, for instance, as^ I observed in 1865, should not an American or a Spanish ship, making short delivery of her goods, or delivering them in a damaged state, at Halifax or Quebec, be subject to the same arrest at the suit of the colonial assignee, as at the suit of a home consignee in London or Liverpool ? The THE THEEE SISTERS. 155 English merchant has a complete remedy in rem. — The Colonial merchant only a remedy in personam, which, in nine cases out of ten, is a mockery. Why, under the 10th section of the Act of 1863, sub-section 9, should not the same power of ordering a sale be conceded as under the 8th section of the Act of 1861, and the want of which power defeated a suitor in this Court of his right in the W. E. Wier, a case of possession, in the present year. And turning from jurisdiction to practice, why should the cumbersome and expensive forms of the year 1832, with some few improvements, continue in force, when so admir- able a code has been in use in the High Court of Admiralty since the year 1859. As my present judgment will naturally attract some attention throughout the Provinces, I embrace this oppor- tunity of inviting the attention of the Legislatures of the Mother Country and of the Dominion, and of mercantile bodies- therein to these inquiries, which, as my experience has shown me, very much affect their interests. Taking the law as it is, it is obvious that the validity of this bottomry bond depends upon the relation in which ■ Halifax stands, whether as a foreign or a home port, to a ship owner in the Province of Quebec. If a foreign port, the bond is valid, — if a home port, it must be rejected. This is an enquiry of real value, and as is apparent from its application to any Province in the Dominion, of much practical importance. A bottomry bond, to be enforced in the Admiralty and to take precedence of incumbrances on the registry executed within the Province to which the ship belongs, is of no avail. This bottomry bond executed at Montreal or at Gaspe, would be valueless in the Admiralty. Shall it be good then, when executed at Toronto, at Char- lottetown, or at Halifax ? Let us look, first of all, at the EngHsh cases and legisla- tion. In the case of Menetone v. Gibbons, 3 Term. E. 267, an hypothecation bond of a British ship executed at Cork, in Ireland, in the year 1782, was held to be good, " being executed in foreign ports in the course of the voyage." In 156 VICE-ADMIEAliTY COURT. the case of the Barbara, 4 Ch. Eob. 1, counsel said that Jersey, for the purpose of sustaining bottomry bonds, might be considered as a foreign possession, to which the Court of Admiralty assented. In the Rhadamanthe, however, Dodson, 201, in 1813, Lord Stowell expressed a doubt of Cork being a foreign port since the Union. And now, by Imperial Act of 1856, the 19 and 20 Vic. cap. 97, sec. 8, "In relation to the rights and remedies of persons having claims for repairs done to, or supplies furnished to or for ships, every port within the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersey, Alderney and Sark, and the islands adjacent to them, being parts of the Dominion of Her Majesty, shall be deemed a home port." In construing the Dominion Act of 1867, by which the Provinces of Canada, Nova Scotia and New Brunswick are welded into one, I should have had great difficulty in hold- ing that the numerous ports of these Provinces, with a uniform customs law and tariff, were to be treated in rela- tion to each other as foreign. If so, a bottomry bond of a Quebec ship granted at Halifax, upon the principle in the Rhadamanthe, already cited, would take precedence of, a previous bottomry bond duly granted at a foreign port. But any question that might have arisen under the Do- minion Act has been resolved by the Merchant Shipping Colonial Act of 1869, the third section of which provides that in the construction of the Merchant Shipping Act, 1854, and of the Acts amending the same, Canada shall be deemed to be one British Possession. On the strength of this Act, as well as of the other, I am of opinion that all the ports of the Dominion are to be accounted home ports in relation to each other, and there- fore that this bottomry bond cannot be enforced in the Admiralty. Next, as to the claim for salvage. This comes before the Court clouded with a suspicion of which I have not been able to divest myself. The vessel having been arrested on 21st and the warrant returned on the 26th of June, re- THE THREE SISTERS. 157 mained in charge of the late acting marshal, waiting the expiration of the two months, when according to the prac- tice of the Court the parties citied could be pronounced in default, and the promovent have a decree for the amount of his demand on the bottomry bond. At or just before the expiration of that time, the mortgagee appeared by his proctor, and on the first of September, after hearing both parties, I ordered a sale which was held on the 13th, and produced the net sum of $1,497.74, now in the registry. On the 4th of August, the men employed by the then marshal had left the vessel in the stream with only the port anchor down ; and in the storm that arose on that day she drifted down the harbour with no one on board, no sail set, and the starboard anchor hanging to the bow. Five affidavits were read at the hearing, and I io not intend to go into them minutely. Two of these were made by Farreli and Campbell who saw the vessel dragging — she kedged as she was going down. About 7 o'clock Parrell saw her bring up between George's Island and Wis- well's Wharf, and then heading N. by E. and riding at her anchor. The last time he saw her was about 8 o'clock when she was between Moren's Wharf and the Gas Works — he could not say she was then dragging. Campbell saw her between 7 and 8 o'clock, abreast or slightly south of the Gas Works — she was then swinging head to wind. These two affidavits produced by the salvors are quite reconcilable with Mr. Hugh McD. Henry's, produced on the defence, which it is quite impossible to reconcile with the salvors. Mr. Henry, standing on the Lumber Yard Wharf between 6 and 7 o'clock, saw the vessel driving past the wharf by the violence of the gale, and apparently dragging her anchor. When she had drifted a short distance beyond the wharf, her course was arrested and she rode safely at her anchor, and was so riding, notwithstanding the great violence of the wind, at the time when he last saw her, nearly one hour after her course had been so arrested. Next morning, between 9 and 10 o'clock, he saw the vessel in the same spot, as nearly as he could judge. He felt sure in the morning that she had not changed during the 158 VICE -ADMIRALTY COURT. night. Now I attach great importance to this evidence coming from a disinterested and competent witness. That he speaks of the same vessel, and that the vessel was then riding safely at anchor as he describes her, I can have no doubt. That the two McLennans, who claim as for a meritorious salvage, went on board and let go the other anchor, I believe; but that, after their own vessel ran ashore, they went out in their own boat from Steele's Pond between 2 and 3 o'clock in the morning, only two hours before the lull of the storm, and boarded the vessel, then dragging, and saved her from going ashore, I regret to say I do not believe. They have magnified a comparatively slight, into a substantial service, and I would be justified perhaps in rejecting their claim altogether, as I did in the somewhat similar case of the Lusteria, also in this harbour. This, however, I shall not do, and as some service was rendered I award them $25 each. I have now to consider the several claims for wages, and first of all that of Marmaduke Graburn, the master. I allowed him to intervene, 15th September, on the petition of his proctor claiming a balance of $267 and the affidavit of his agent stating it at $250, verifying also two memoranda said to be signed by Mr. Downs, one giving the date when he took charge and the rate of wages at $50 per month, and the other charging him with payments at Halifax and Trinidad amounting to $300. Siteman and Gastonay, who were examined orally at the hearing, proved Graburn's employment as master since the 1st of December or January, making a little over six months to the date of arrest. They failed in proving the handwriting of Downs to the memoranda, and as Graburn has been unable to come here and testify for himself, there is really no evidence of the $250 his counsel here claims being due. He is also charged with considerable sums in an account from Trinidad under his hand, and by an affidavit of Mr. Frith, -which the Court has no means of investigating, and must there- fore reject this claim, leaving the master to his recourse on the owner. THE THKEE SISTERS. 159 The claim also of Chas. P. Johnson, the mate, is not strictly proved, but aa the ship was arrested on his affidavit previous to her arrest by the bottomry holder, and the latter paid the amount with costs amounting to $180.79, I shall allow him that sum. In the W. F. Safford, Lush. Adm. 69, a person, who had paid the crew their wages by direction of the master, was allowed to stand in their place, and his claim was given preference over a bottomry bond. On that principle I shall allow the wages paid by Mr. Frith to Handlon, Brown and Ashford amounting to $172.50. I allow also the wages proved to be due to Joseph Power, being $47.25. As regards the costs in this suit, I cannot, of course, award costs to the bottomry holder, but I do not award costs against him. I allow his proctor costs on his resist- ance to the claims of the salvors and master, which I com- pute and settle at $35. To the proctor I allow as costs $25 — on the award to the salvors. These sums, with the costs of Court, are to be paid out of the proceeds in the registry, and the balance to the proctor of the mortgagee. J. H. Fkith, for bondholder. C. B. Bullock, for mortgages. N. H. Meaghee, for salvors. THE JAMES FEASEE. (Delivered November iith, 1873.) Action by master for wages. — The master of a vessel having brought an action against the owners, claiming a large balance due him for dis- bursements and wages, they pleaded inaccuracy in the charges, fraud, and mismanagement of the vessel, but produced no evidence in support of their charges against him. The master's accounts being very complicated were referred by the Court to competent persons, with the concurrence of both parties to the suit, and the referees, after a thorough examination, reported in favor of the master to the extent of two-thirds of his claim. To this report the owners filed numerous objections, alleging fraud, etc., as before. 160 VICE-ADMIBALTY COUET. Held, that in the absence of direct proof of collusion or fraud on the part of the master, the report must be confirmed. Exceptional rules in the adjustment of such accounts. Where, in a question of accounts and disbursements, a thoroughly com- petent person has been selected as referee, with the approval of both parties, and he reports thereon after a full examination, those who would take objections to such a report are bound to prove their objections by clear and satisfactory evidence, for it will not be overruled, unless there be an overpowering case made against it which shall satisfy the mind of the Court that it ought not to be maintained. This is an action brought against the vessel by Wm. F. Burke, the master, claiming $750 to be due him for wages and disbursements. It was commenced by warrant, 7th of August last, on which the vessel was arrested and bail put in. The pleadings were conducted by act on petition, answer and reply under the rules of 1859, and affidavits subject to cross-examination, under the practice I have recently introduced, were made by the master, Standish, the mate, Thomas Evans, Thomas J. Wallace and J. C. Eobertson. A hearing was had upon these papers on the 30th September, and none of the last three deponents having been on board, the master and mate fm-nish the only evidence except the pro- test and accounts of the several voyages from Halifax to Glace Bay, and thence to New York, resulting in a furious storm and deviation under alleged necessity to St. Thomas ; thence, after a sale of the cargo and extensive repairs, to St. Domingo, thence to New York, Newfoundland, Sydney, C.B., and Halifax. As the affidavits of Burke and Standish, and the exhibits appeared to justify these various steps, and the principles of law applicable to deviations, sales and transhipments of cargo, the undertaking of a new voyage and the obligations and duties of a master, have been frequently reviewed, and are well understood in our Courts, I thought it better, before going minutely into the case, to ascertain the facts by a reference to competent parties ; and I granted an order to that effect on the 3rd September last. On the 20th October the registrar filed his report with the concurrence of Mr. Bremner (although the latter did not sign it, which the form No. 225 does not require), stating THE JAMES FRASEB. 161 the fact that nearly all the items in the several disbursement accounts having been disputed by the defendants, accom- panied with charges of fraud against the plaintiff, had necessitated a most thorough and minute examination of the accounts, as is abundantly apparent from the report, from the reasons assigned for allowing or disallowing the several items, or from the conclusions drawn and the adjustment of the final balance of $511.61 in favour of the plaintiff. To this report the defendants filed twenty-three objec- tions, incorporating the substance of their pleading, which were argued before me under agreement on the 6th inst., with the minutes of evidence taken by the referees, all of which, with the documents in the case, I have read. The authorities that were cited I have also looked into, but have not found any new doctrines that were not familiar to the Court. The principles in Maude & Pollock, and Parsons on Shipping, Story on Agency, Smith's Mercantile Law, and the cases in Fisher's Digest, under the head of " Shipping," it would be a waste of time to dilate on. Smith's Compen- dium, 7th edition, 310, is perhaps the most comprehensive of all, and the cases abundantly show that nothing but an overruling necessity — a necessity which, to use the strong expression of the writer, supersedes all human laws — would justify the master in the deviations, the sale of cargo at St. Thomas, or the voyage to St. Domingo, and that the usage of trade, the state of his ship, and the circumstances in which he was placed, and these alone could excuse some of the expenses he incurred, and the allowances he assented to. The misfortune of the defendants is, if the master was really open to the grave and numerous imputations oa him, that there is no evidence on their part, and that the evidence of Burke and Standish in the view of the referees and in that of the Court affords no justification. To illus- trate this, let us look at the main charge of fraudulent deviation to St. Thomas. As I have already observed, V-A.B. 12 162 VICE-ADMIRALTY COURT. there is no evidence whatever of the voyage on the part of the defendants, and Standish was stated, however truly, at the hearing, to be in their confidence. Now, in his affida- vit of 10th September, after describing the terrific storm which overtook the vessel after sailing from Glace Bay, January 24th, and forced them first of all to take refuge in Louisburg, the extreme sufferings of the crew, and the dangerous leak against which the pumps though kept con- stantly going, scarcely made any headway he declares that the safety of the vessel and the lives of the crew were in great peril, and rendered it absolutely necessary for the master, in the exercise of a wise and proper discretion, to make the port of St. Thomas. In his cross-examination, he says that they did not try to heave the vessel to, for she would have sunk on account of the ice — that there was no use in attempting to go to New York, as she was not fit to face it. She might have been taken to Bermuda ; they made no effort to go there, of which the defendants, perhaps with justice, complain. But strange to say, when their counsel had Burke under cross-examination, in his own voluminous afi&davit of the 22nd September, he was not interrogated at all on this point, though he describes the storm in that af&davit, and declares that finding it impossible to make New York he was compelled, for the safety of vessel and crew, to run a more southerly course to St. Thomas. How is it possible, in the face of such evidence uncontradicted, to pronounce the deviation a dereliction of duty ? On the question of accounts and disbursements, a mer- chant of large experience, selected with the approval of both parties, and bestowing his best attention on them, is much more competent to decide than this Court, and accordingly the rule in England is, as laid down in William's & Bruce's Admiralty, 285, that those who take objections to such a report are bound to prove their objec- tions by clear and satisfactory evidence, for the Court will never overrule a report without being perfectly satisfied that upon the evidence it ought not to be maintained. It is not to be overthrown unless there be an overpowering case THE JAMES FEASEE. 163 -which shall satisfy the mind of the Court that justice has not been done. In the case of the Hope, decided last December, 28 L. T. E. 287, Mr. Eothery, Eegistrar of the High Court of Admiralty, made an elaborate report, occupying four closely printed pages, which was confirmed by Sir Eobert Philli- more, and meets some of the objections here. It was a master's cause of wages and his vouchers were imperfect or wanting. But the accountant stated that he had great experience in the adjustment of master's accounts with their owners, that as a general rule they were very irregu- larly, or rather informally kept, and that it was not usual to require masters to produce vouchers for all their pay- ments. He added that many of the items on the master's accounts were unvouchered, but that he did not consider the expenditures on the two voyages to be either excessive or unreasonable. The referees in the present case considered some of the charges at St. Thomas as excessive, it being notoriously a most expensive port, and I cannot help thinking that Captain Burke, in the interest of his owners, should not have sanctioned, without strong objection, the accumulated commissions of Lamb & Co., and the charge of $100 for services not specified, when $25 would have been ample. Still there is no room to suspect collusion or fraud, and following the example of Dr. Lmhington in the Clyde, Swabey, 23, 1 must confirm the. report with the costs of "suit (the material accounts anii vouchers having been in the hands of the defendants or their agent before action brought), leaving each party to bear his own costs on the objections to the report. CooMBES & Thompson, for the master. Wallace & Meagher, for owners. 164 TICE-ADMIEALTT COUBT. THE EICHMOND. (Delivered December 5TH, 1873.) Inevitable Accident. — The steamer Richmond, while seeking shelter from a fearful storm, and using every possible precaution, unavoidably ran down and sank a small schooner. On an action being brought for damages, Held, that judgment should be for defendant, each party paying their own costs. This is a case of collision, in which the steamer Rich- mond sunk the Tomtit, a ballast-sloop, during the great gale of 12iih October, 1871. She is valued in the evi- dence at from $50 to $250, and was probably worth $100, or thereabouts. The warrant was not taken out imtil May, 1872, and I find that a libel was filed in Sep- tember of that year, and a responsive allegation in Janu- ary, 1873. Depositions were taken from seven witnesses on each side, and heavy costs incurred, which in so small a case it would have been wise to avoid. I desire that such cases in future shall be conducted by act on petition and evidence taken by affidavits, not separately, but by as many deponents as possible combining in one. The whole question is whether the injury resulted from inevitable accident or from negligence, or want of proper care and skill on the part of the Richmond, The law of inevitable accident was so fully reviewed in the cases of the Chase, arising out of the same storm, that I need not repeat it here. The storm was one of the most fearful ever witnessed in this harbour, as was proved in the former cases and in the present, Mr. Symonds wharf at Dartmouth having been nearly destroyed, though built of solid stone. It was seen approaching about one o'clock, and the Richmond having had a trial trip on the previous day, and that day appointed for her passing inspection as a ferry-boat at the Lennox Passage, Mr. Symonds was THE RICHMOND. 165 afraid that she might be injured, as she lay at his wharf secured as against any ordinary weather, and used every exertion to procure a tugboat or shelter in Dartmouth Cove. Neither could be had, and, as a last resort, steam was got up, and the managing engineer of the foundry, ■with eight other men, two of them seamen, pushed off into the harbour, meaning to run up to the Basin. But this they found impracticable, and to save their lives they had to put into the wharf at the depot, where they arrived about dark, and where, as Hinch says, there was a very heavy sea, and the gale was at its height. These undis- puted facts are quite at variance with the allegations in the libel, and I see nothing in them imputing the slightest blame to the steamer. Her proper crew had not been engaged. She was securely fastened and so remained until the spile gave way, and on her taking refuge at Eichmond, the men on board were actively and busily at work to save their own vessel, and with no design certainly to injure any other. In such a tempest, to require from the men on board a skill and seamanship which did not belong to them as landsmen, would be somewhat unreasonable ; but, ■with some contradiction in the evidence, they seem to me to have done all that reasonably could be expected of them. The Tomtii was lying outside of Anderson's ballast-boat Tvith her head to the southward, when, as he says, there was plenty of room to the north to move next to the wharf, where she would have been safe. There was no one on board of her when the Richmond came in. This, both Anderson and Hinch testify, but some of her men were on the wharf, to whom, as three of defendant's witnesses proved, Mr. Symonds offered assistance and lines to take the Tomtit further up the dock, but she was not moved. The Richmond then struck her, it being thought too -dangerous or impracticable to move the steamship up. What was it then that occasioned the loss ? ' I will not say that it was the negligence or fault of the Tomtit, whose master and owner was then on shore. But I see no evidence of negligence or fault in the Richmond. 166 VICB-ADMIEALTY COURT. The excessive violence of the storm and inevitable accident arising therefrom was the true cause. Had both been in fault, each party must have borne a moiety of the loss.. (The Milan, Lush. 404), and each party left to pay his own costs (Williams and Bruce, 73). But when damage is occa- sioned by unavoidable accident, or there is a reasonable doubt as to which party is to blame, the loss must be sus- tained by the party on whom it has fallen (Catherine of Dover, 2 Hagg. 154). It is to be regretted that the plain- tiff did not take more active measures, which he might easily have done, to save some part of his property, having rescued his mainsail only, which he sold for $10. As he has lost all, the Court will not aggravate his misfortune by condemning him to costs, the rule being that each party pays his own costs, though the Court has a discretionary power when it finds inevitable accident. The London, Brow- and Lush. 82, 9, L. T. E. N. S. 348. Judgment for the defendant, paying his own costs. Heney, Q.C, for promovents. EiGBT, Q.C, for respondents. THE TICKLEE. (Delivered January 13TH, 1874.) Derelict. — A fishing schooner, while returning from the grounds with' a full cargo, fell in with a derelict, and taking her in tow, brought her into port, remaining in possession until relieved by an officer of the Court. A. delay of twelve days was thus occasioned on her home voyage. Held, that one-third the value of derelict and cargo should be awarded as salvage. The fishing-schooner M. L. Weatherall had been engaged in fishing on the grand bank of Newfoundland, with a crew THE TICKLER. 167 of eleven men on board, and having obtained a full cargo of fish, sailed therefrom on the 21st day of August, 1873, bound for Gloucester, to dispose of the cargo. She had as captain, Alfred Nickerson, and as mate, Thaddeus Nicker- son ; those two having undertaken the voyage on an agree- ment to divide expenses and profits, the other men being paid wages. The catch of fish had been salted merely for the ordinary length of the voyage to Gloucester, that is to say, about ten days, and with a view to the sale of the same by weight immediately on arrival. The schooner proceeded on her voyage until the 27th of August, when the schooner Tickler was discovered about forty-five miles distant from Scatterie Island. The M. L. Weatherall bore down upon her, and on near approach found her to be abandoned, with both masts gone. The mate, with three men, went on board about 4 o'clock in the afternoon ; but, owing to the wind having risen and a heavy sea prevailing, it was not until after several vain attempts and many hours' severe labour, attended with much risk, that a hawser was finally fastened to the derelict, and she was taken in tow. The M. L. Weatherall was then got under weigh and headed for Canso, but the wind changing, it was decided to make for Louisburg, Cape Breton, which was safely reached on the afternoon of the 29th. The salvors remained in charge of the derelict until the 7th of September, when they were relieved by an officer of the Court. Proceedings were there- upon had to obtain salvage, the salvors claiming that they had been detained twelve days whilst rendering their ser- vices ; that the demurrage of the schooner alone, without including wages, would amount to $180 ; and that, in con- sequence of the detention, the cargo of fish was partly damaged, and had deteriorated nearly $500 in value. The Court awarded salvage as follows : — The salved ship appraised at $1,200 00 Cargoat 3.705 00 $4,905 00 Salvage allowed, one-third $1,635 occ l68 VICE -ADMIRALTY COURT. Distributed as follows : — To the schooner 8250 °o And for 12 days' demurrage 180 00 $430 00 To the eleven men, each $24 264 00 To Alfred and Thaddeus Nickerson, for computed loss on cargo, their own services and their men's extra wages.. . 941 00 $1,635 00 With costs. McDonald, Q.C, for salvors. N. H. Meagher, for owners. THE E. EOBINSON. (Delivered February 7TH, 1874.) Derelict. — The ship was found derelict by the mail steaiaship Abyssinia, and the third officer, with fifteen of the steamer's crew, after two days' extreme exertion and considerable personal risk, succeeded in bringing her safely into the port of Halifax. Appraised value of ship and cargo, $101,936. $30,000 awarded as salvage. The steamship Abyssinia, of the British and North Ameri- can Eoyal Mail Steamship Company, set sail from New York on the first of November, 1873, bound for Liverpool. On the third, when in latitude 41° 10 ' north, longitude 63° west, a vessel hove in sight ahead, which proved to be the B. Robinson. She had all her spars standing, but her sails were in ribbons, and there was no one on board. Her cargo was composed of corn and cotton. The Abyssinia sent a boat's crew on board, who found that the pumps were choked and fourteen feet of water in the hold. Volun- teers were then asked for, and the third officer, J. W. Mor- THE E. K0BIN80N. 169 ris, together with fifteen of the steamers crew, accepted and went on board about midday. They succeeded in get- ting the pumps and the donkey-engine for driving them into working order, and bent new sails on the yards ; and in the evening the steamer left them to continue her voyage. The salvors then directed their course to the nearest port. The wind and sea soon after increased until it was blowing a gale, which compelled them to take in sail. The ship went over on her beam ends and laboured heavily. The pumps became choked every three or four hours, requiring io be cleared out ; and while this was being done the water in the hold would gain on them so that altogether they <;ould not ireduce it much below fourteen feet. The donkey- engine getting out of order, so as to be beyond repair, the whole crew were compelled to take to the pumps in order to keep the vessel afloat. At length, after two- days' severe exertion and considerable personal risk, they succeeded in bringing the R. Robinson safely into the port of Halifax. Salvage was awarded as follows : — The ship was appraised at $30,000 00 The cargo, including freight, at 71 ,956 51 $101,956 51 To the steamship Abyssinia $12,000 00 To the master thereof 1.500 00 To J. W. Morris 1,500 00 To nine seamen, salvors, $750 each .... 6,750 00 To two firemen and four stewards on board R. Robinson, $550 each $3.300 00 To the officers and crew of the Abyssinia according to ratings 4.5oo 00 Balance towards salvors' costs 45° 00 / $30,000 00 EiTCHiE, Q.C., for salvors. Blanchard and Meagher, for owners. 170 VICE-ADMIEAIiTY COUBT. THE ATLANTIC. (Delivered March 14TH. 1874.) Life-salvage. — Awards made in the nature of life-salvage to fishermen who had been instrumental in saving many lives from a passenger steamer wrecked upon the coast. The steam ship Atlantic, belonging to the Inman Line, while on a voyage from Queenstown to New York, with a general cargo, and a large number of passengers, by the neglect of the captain, was brought too near the coast of Nova Scotia, and on the night of the 31st of March, 1873, struck on a rocky promontory, known as Meagher's Head, about fifteen miles from the port of Halifax. The steamer immediately began to fill and sink, and as there was a high wind prevailing at the time, the sea soon made a clean breach over her, sweeping away hundreds of the passengers. A number succeeded in reaching a large flat rock that pro- jected from the water within a hundred yards of the land, while many remained on board the vessel, holding on by the rigging. At early morning the catastrophe became known among the fishermen in the neighbourhood, who forthwith proceeded to the scene of the wreck, and for many hours laboured with their boats, plying between the rock, the steamer, and the mainland, using two large seine boats for the purpose. In this manner they were instrumental in saving some three hundred and seventy-five of the pas- sengers and crew. Proceedings having been thereupon taken by them in the Court of Vice-Admiralty to recover compensation for their services in the nature of life salvage, the following decree was made : To Edmund Ryan, who had been their leader in the work $100 00 THE MARGARET. 171 To James Doolen, whose boats had been used, and wBo was particularly active 150 oo To fourteen others, sums according to the nature of their services, varying from 830 to $100 each, and making in all 1,250 00 Total $1,500 00 THE MAEGAEET. (Delivered March 14TH, 1874.) Salvage. — The schooner Margaret, when in a helpless condition, was fallen in with by the Alfred Whalen, and the captain of the latter vessel persuaded the Margaret's crew to desert her and take to his vessel. He then sailed off, but soon returned, and taking her in tow brought her into port. Held, that this did not constitute the Margaret a derelict, and therefore somewhat less than one-half the amount claimed was awarded. The schooner Alfred Whalen, while prosecuting a fishing voyage on the Western Banks on the 27th of January, 1874, discovered the schooner Margaret in a crippled condition, she having been thrown on her beam ends a short time previously, and the crew obliged to cut away the masts in order to right her again. On the Alfred Whalen coming up, the captain of the Margaret asked to be taken in tow and brought into the nearest port, which the captain of the Alfred Whalen positively refused to do, but offered to take the other captain and crew on board if they would desert their vessel. To this the captain of the Margaret would not at first consent, and then asked only to be reported, as he would remain by his vessel. His crew, however, after con- sultation together, decided to go on board the Alfred Whalen, and being unable to retain them he had no resource, but to go also. When they were all on board, the Alfred Whalen sailed off as though she intended to leave the Margaret 172 VICE-ADMIRALTY COURT. altogether; but, aftergoinga fewmiles, returned, put several men on board her, and then taking her in tow, brought her into the port of Halifax. From all the facts in evidence it was made clear to the Court that the purpose of the master of the Alfred Whalen was to compel the master of the Margaret to declare her derelict, in which case he would have been able to secure a larger amount than would be awarded for ordinary salvage services. Under the circum- stances, however, the Court decided that it could not look upon the Margaret as a derelict vessel, and therefore awarded only $2,900, being somewhat less than one-half the amount claimed. The award was apportioned as follows : — To the Alfred Whalen 8500 00 To the captain and crew, making twelve in all, the sum of $200 each 2,400 00 $2,900 00 The ground upon which the Court went in allowing a like amount to both captain and seamen was that they had signed a paper to share equally whatever should be awarded. THE CHAELES FORBES. (Delivered August 15TH, 1874.) Salvage and Misconduct of Salvors. — The Charles Forbes sailed from a port in the United States bound for Portland, with a cargo of coal. Encountering heavy weather, her cargo shifted, but not to such an extent as to throw her on her beam-ends, nor did she become unmanageable. In this state she was found off the American coast by three American schooners, and abandoned by her master and crew without there being any circumstances whatever to justify such a course. Although many American ports were much nearer the salvors brought her into Halifax. After the vessel had been taken possession of by the salvors, her master made efforts to return to her, but was prevented by one of the salvors. THE , CHAELES FORBES. 17$ He then asked them to take the vessel into Portland, her destination, but this was refused. The vessel was appraised at $21,303, and the cargo at $4,440. Held, that the vessel was not derelict ; that the salvors had not acted as they should have done under the circumstances, and that, as there was no substantial service rendered by them, the total salvage should be only $2,840, to be divided among them, with costs of suit. The captain of one of the salving schooners, who had taken command of the Charles Forbes, was held to have so misconducted himself as to for- feit his share of the salvage. The law upon this point reviewed. This case was argued before me on the 8th of July, with its voluminous pleadings and depositions, which I have perused a second time with an attentive eye, and am now to record the impression which the circumstances in proof have made upon my own mind. The vessel is owned by upwards of twenty persons at Portland in the State of Maine, is said to be of 500 tons and upwards register measurement, and was appraised here at $21,303, her cargo of hard coal and freight being valued at $4,440. She was fully equipped and provisioned at New York, and sailed from a port in New Jersey, on the 27th April last, bound for Portland. On the 30th, part of her cargo had shifted, which the mate says the crew " had succeeded in righting considerably." Both he and the master testify that the barque, though hove down, with her starboard rail about two feet out of water, was never on her beam ends, nor was she at any time unmanageable. She was on George's Bank afloat about 110 miles from Cape Cod, nearer to the numerous American ports, including her port of destination, than to Halifax. On Friday, the 1st of May and during that night the Margaret, one of the three American salving schooners now before the Court, was close to the barque, and the weather was fine and a smooth sea prevailing. Yet she was abandoned, to the disgrace, I am bound to say, both of master and mate. The master says he would not have left the barque at all, were it not that he was com- pelled to do so by the action of his crew, who refused to remain on board of her ; but I find no evidence of the stern resistance, of the persistent and vigorous remonstrances, which he ought to have offered to so inexcusable a deser- ./M ^1 174 VICH-ABMIRALTY COURT. tion. There are other circumstances, too, which do not look well. The salvors charge that there were eight or nine feet of water in the hold. She was pumped out by the salvors in a few hours, and the mate did not believe there was any more than three feet of water in the barque at any time during the voyage. This is confirmed by Mr. Leavitt, an expert, who examined the cargo after the vessel was released on bail and arrived at Portland. Yet the mate, in his cross-examination, says that the master when he hailed the Margaret said there was seven feet of water in her. And if I am to look at the certified copy of his protest, noted at Shelburne on the 1st of May (and to some extent it is evidence, though I need scarcely inquire how far), the water stood nine feet deep in the hold. I cannot wonder, therefore, at the strong language applied to this master by the counsel of the ship at the hearing, nor can I acquit the mate who seems to have been only too ready to pack up, as he expresses it, and leave with the rest of the crew. No such instance of dereliction of the plain duty by the officers of a ship, and of the want of ordinary firmness, to use the mildest term, has occurred, in my experience, in this court, and I think it right to mark my disapprobation of it in emphatic terms. Nor am I able, I regret to say, to express any approval of the conduct of the salvors. Vivian, the master of the Margaret, claimed the ship as his prize ; Dowdell adopted uncandid and unjustifiable expedients to secure it for him- self ; and Murphy combined with the other two in putting no less than fifteen men on board — five from each vessel — to carry the ship to Halifax, where she need not have been brought at all, and the fifteen men employed apparently to swell the amount of salvage. In their affidavit of 9th of May, Dowdell and Murphy, the two masters, say that the barque was in distress, and drifting at the mercy of the winds and waves, and, but for the exertions of the deponents and their associates, would have sunk where she lay on her beam ends, at St George's Bank. With this representation before me, I directed bail to be given for half the appraised value (imposing a heavy cost, in the shape of commission, THK CHAKLES FORBES. 175 upon the owners) — and even with this the Margaret was discontented, because she claimed for life salvage, for which, as it now appears, there was not a pretence. There was no such misconduct, however, as was admitted at the hearing (though, as I hold, there was an extravagant exaggeration in the claim for salvage), as would shut out the three vessels, or their crews or masters, with the exception of Dowdell, to whom, as I think, I must apply a rule differ- ent from the rest. It is true that he took the command of the salving party, but without nautical instruments on board he risked the safety of the ship on her passage to Halifax, and excluded the captain by a trick from his own vessel, which no sailor can be permitted to do. In his own disposition, he says that the master of the barque, who had remained on board, asked to be put on the Margaret where his crew were, which was done ; about four hom's after he hailed the barque from the Margaret, and wanted to go on board again, to which Dowdell said that he did not require his assistance. Here the fact is admitted, but it assumes a very different appear- ance in the depositions of Bradford, Vivian and Titcomb. Titcomb says: "About noon the Margaret overtook the barque, and Captain Bradford hailed them and asked them to heave to and let him come on board, which they refused to do. Captain Bradford then said, ' You promised me and gave me your word that I should come on board again.' No reply was made to this, except that the party who appeared to be in charge said the ship was tight, " we have sucked her out two or three times since you left, and I think we have got help enough." Captain Bradford again replied and directed them to take the barque into Portland as she was bound there. Captain Vivian then hailed them and asked them to heave to, which they refused to do. Captain Vivian then got into a dory and went alongside the barque which was about 30 yards distant from them. He made two attempts to get on board, but the person apparently having charge of the barque refused to let him on board. Captain Vivian then returned to the schooner and stated that Captain 176 TICE-ADMIRALTT COTJKT, Dowdell wouldn't let him on board and threatened to shoot him. "From the conduct and behaviour of the person who made the said replies from the barque, and whom I heard called Captain Dowdell, I judged that he was in liquor, and many of those on board the Margaret freely expressed the opinion that he (Dowdell) was drunk." Vivian in his cross examination says : — "Soon after that the wind moderated, and we sailed up alongside of the barque. Bradford hailed the barque then, and asked Dowdell to heave the main yard aback, so that he could go aboard. Dow- dell refused. Bradford said : ' If he would not let him come on board, he would like him to take her into Portland, as she was bound there.' I also attempted to go on board, but Dowdell would not let me. I went into my dory and pulled alongside the barque. Tried to get on board of her on the lee side first, when Dowdell looked over the side, put his hand in his breast, and said he would shoot me if I tried it — (blow my brains out). I then went to the weather side. He followed me round the rail, and repeated what he had said before. I then returned to my own vessel, and that same evening we lost sight of her." Bradford's deposition is a fuller and probably a more ac- curate account : — " About 8 a.m., next day, the wind being very light, I requested the main yards to be hove back, to allow me to go on board the Margaret to get some clothing and nautical instruments, there being at the time no nautical instru- ments of any kind, except a chart, on board said barque. I did not consider it proper or prudent to attempt to bring said barque in without being supplied with all nautical in- struments necessary to navigate her. The main yards were hove back and said barque, hove to. Capt. Dowdell promised to wait for me with said barque until I would re- turn with said clothing and nautical instruments. I told Capt. Dowdell what I was going for. The barque remained hove to and about half an hour afterwards I got into a dory with two of the crew of the Margaret and had proceeded some distance towards the barque with all the clothing and THE CHARLES FOEBES. 177 nautical instruments required, and when within about three or four hundred yards of said barque she filled away and prevented my boarding her, and I was obliged to return to the Margaret. During that day the Margaret overtook the barque, and I hailed Capt. Dowdell, and requested him to back the mainyard in order that I might return to the barque, but said Capt. Dowdell refused, and said he did not need me, and that he would not allow me to come on board. CaptainVivian then said he would go on board — he got into his dory with one man and pulled alongside said barque, and when he attempted to board her Captain Dowdell put his right hand to his breast clothing, and threatened to blow his brains out if he, Capt Vivian, would put his head over the rail. Captain Vivian then attempted to board on the other side, but was met in the same way by Captain Dowdell. Captain Vivian then returned to the Margaret and I again hailed the barque, and ordered Captain Dowdell to take said barque into Portland, stating she was bound to that port." It may be Dowdell's misfortune that he has had no opportunity of answering these statements, but if he had, still there would have been three to one, and the Court must deal with the depositions as it finds them. I believe in his misconduct the more readily from what we know of him here, and shall act on the principle established in the Martha, Swabey's reports 489, and in the other cases cited in Jones on Salvage, 124, 5. " It is an established rule of the Court, said Dr. Lushington, and one I shall never depart from, that however valuable a service may be, salvors may forfeit their just reward (and this, of course, must apply to one of several salvors) if they are guilty of misconduct." In the case of the Atlas before the Privy Council, (1 Lush. 528,) their Lordships held that no misconduct, short of that which is wilful, and may be considered criminal, will work an entire forfeiture of salvage. Mistake or mis- conduct, other than criminal, which diminishes the value V-A.K. 13 178 VICE-ADMIRALTY COURT. of the property salved, or occasions expense to the owners, are properly considered in the amount to be awarded. Wilful or criminal misconduct may work an entire for- feiture of it ; but that must be clearly and conclusively proved to those who impute it. On these principles I feel myself constrained to pronounce for an entire forfeiture of Dowdell's share of the salvage. As the general claim of salvage was not contested at the hearing, all that remains is the amount to be awarded and its distribution. It would be an abuse of terms to deal with this claim as in the case of a ship derelict or aban- doned bona fide and for just cause. Though there is no proof of complicity, there was an obvious and palpable eagerness to seize upon and hold the ship, with a view, not so much to her preservation as to a salvage reward. There was no fatigue, no risk of life, no substantial service, which the crew of the ship, if permitted and willing, could not have rendered better than the salvors. This is not a case, therefore, in the view I take it, in which the owners of the ship insured, it would seem, to the extent of one fourth, or the owners and insurers of cargo should be condemned in more than a very moderate salvage. I shall give the salvors, in the first place, their costs to be taxed, and for the facility of settlement as among them- selves. I award — To the owners of the Margaret $365 00 To the master and five men who arrived here with the ship $80 each 480 00 To the men who remained in the Margaret, in equal shares 155 00 $100000 To the owners of the Veteran $365 00 To the master and five men who arrived here with the ship ?8o each 480 00 To the men who remained in the Veteran, in equal shares 155 00 $100000 THE QUEEN V. GOLD WATCHES. 179 To the owners of the Montana 8365 00 To Patrick Connel, Thomas Butt, Edward Royal and Peter H. Bolton, $80 each 320 00 To the men who remained in the Montana, in equal shares i^g -qq $84000 Making in all ^2,840 00 Costs of suit to be added. McDonald, Q.C. and Bigbt, for promovents. Blanchakd, Q.C. and Meagher, for respondents. THE QUEEN v. GOLD WATCHES AND JOHN BALDWIN, CLAIMANT. (Delivered March ioth, 1875.) Violation of Revenue Laws. — Action for forfeiture and penalties against a merchant doing business in Halifax, the goods seized under the charge of duties being unpaid thereon consisting of watches and other jewelry. The claimant alleged that he had not imported the goods him- self, but purchased them in Halifax, but failed to establish his defence, the dealings between him and his alleged vendors being exceedingly com- plicated and suspicious. In addition to this certain statements of his own were brought in evidence admitting that he had not paid duty on two of the watches seized. Held, that the goods should be forfeited, and that the claimant should pay a fine of f 100, with costs of suit. This action for forfeiture and penalties was founded on a seizure made so far back as the 4th October, 1873. The monition, libel and responsive plea with the claim and security for costs, were filed in February and March, 1874, and depositions taken from James Kerr and John J. Muncey, officers of the customs, and from the claimant and Stitt McCelland, on his behalf; but from causes with which I am unacquainted, the hearing was delayed untill the 25th of 180 VICE-ADMIBALTY COURT, January last. On the 29th I directed a further examina- tion of the claimant in presence of counsel, and at his request I inspected the articles seized at the custom house, and the appraisement of them as testified to by Mr. Kerr ; and with these materials before me I am now to give judg- ment. Baldwin has been in business here, keeping a jeweller's hardware and earthenware shop, for about eight years. The goods, consisting of thirty-nine gold and four silver watches, fourteen sets gold brooches and earrings, and fifty-six gold finger rings, appraised by Mr. Brown at $1,300.70, their wholesale sterling value being equivalent to that sum, were exposed for sale and seized in Mr. Bald- win's shop, under the Dominion Customs Act, 31 Vic. cap. 6, sec. 75, 91. Under the 106th section, the proof of the duties thereon having been paid lies on the claimant, and his defence is, not that the goods were imported and the duties paid by himself, but that he bought the goods from the house of McClelland Bros., doing business here as a branch of the same firm doing business as general mer- chants at Birmingham, in England ; that he bought these goods in 1872, in the ordinary course of business, at fair prices, and had no reason to suppose that the duties on them had not been duly paid. It was to afford the claim- ant an opportunity of establishing this defence by the invoices of McClelland Bros., and by their ledger, which was in his possession, that I sanctioned his second examin- ation, and I have carefully inspected the ledger and invoices produced, as well as the other invoices in proof. The object of such prosecution is to protect the revenue and to detect and punish fraud, not to harass the innocent owner of goods, in the language of one of the clauses of the Act, nor the fair dealer. It is true the goods on the shelves of a dealer may be seized under sec. 91, by an officer of customs having first made oath that he has reasonable cause to suspect that they are liable to forfeiture, and they may have been smug- gled, and be so liable without the knowledge or participa- tion of the dealer, who, in such case, would have his THE QUEEN V. GOLD WATCHES. 181 recourse on the vendor, but still there would be a strong inclination in a court to protect, as far as possible, the innocent vendee, and an inquiry into the circumstances under which he acquired the goods would always be per- mitted, were it only to save him from the penalty in the Act. In the case of the Minnie, tried in 1871 (ante, p. 65), I had occasion to remark that custom house laws are framed to meet the infinitely varied and ingenious devices to defraud the revenue of the country, which we often see in these courts. In no other system is the party accused obliged to prove his innocence ; the weight of proof, as I have said, is on him, reversing one of the first principles of the English Criminal Law. Yet the Legislatures of Great Britain, of the United States, and of the Dominion, concur in sanc- tioning this departure from the more humane, and as it would seem at the first blush, the more reasonable rule, compelled by the necessity which experience has demon- strated of counterworking the fraudulent and protecting the honest trader. See the American cases cited in 3 Greenleaf on Evid. 8th ed. sec 404 ; 1 Gall. 104 ; £ Gall. 485 ; Imp. Consolidated Customs Act, 1853, sec. 305 ; the Union, 1 Hagg. 36. It appears from the deposition of Mr. Kerr that Baldwin being in England in the summer of 1873, had fallen under the suspicion of the custom house here, and that additional officers were employed under the orders of a magistrate, to meet him on his arrival and search his person. These, as Kerr says, he evaded, which Baldwin denies. At all events, he was not searched, but the valise he carried with him was examined and passed, containing two of the gold watches afterwards seized. In his deposition, he says, " I could not remember what part of the valise these watches were in. I never said anything to the officer about the watches being in the valise ; I had no conversation with him relative to any dutiable goods being in my valise; " and in his cross-examination he adds, speaking of a conversa- tion he had with the collector : " I believe I admitted on that occasion to Mr. McDonald, in presence of Kerr, that 182 VICK-ADMIEALTY COUET. the two watches had been smuggled." This of course hav- ing been taken by the Eegistrar and certified by him to have been distinctly read over and acknowledged by the claimant to be true, is decisive as to the two watches. Another of the gold watches seized was bought by the claimant in England for his own use, and worn upon his person, and the prosecuting counsel considering it as part of his luggage, did not press for a condemnation, though the watch was found in the shop. The history of the other goods is not a little curious. It would seem that the claimant, like McClelland Bros., has a place of business in England as well as in Nova Scotia. One of the bills of parcels produced is for Messrs. Baldwin & Co., Burnley, a town in Lancashire. Four others produced along with it, all from McClelland Bros. & Co., being, I presume, the same firm with McClelland Bros., and both in Cambridge street, Birmingham, are for Messrs. John Baldwin & Co., Halifax, N. S., bearing date 28th and 29th August, and 4th September, 1873. These five invoices were voluntarily exhibited by the claimant to the collector, and marked C. after the seizure. None of them were exhibited for entry, and the only explanation given is "that most of the goods in C. came out here and are in another invoice B.," and that some of the goods the claimant bought from McClelland Bros, were for Lan- cashire, and are all contained in C. The goods in B. were entered 4th Nov., 1873, and the duty paid. The invoice contains two Boston hunting levers, 20 lines at 110 shillings each, being, as the claimant states, the two watches above mentioned and seized. These he included in his entry without mentioning the fact that they were so included to the clerk, and the collector obliged him to amend his entry and take back that portion of the duty which applied to them. B. is dated 6th Oct., amount, i£186 Ss. 5d. sterling. But another invoice was produced, marked A. immediately after the seizure, dated 6th Septem- ber, 1873, amount, £75 13s. Id. sterling. Also, from McClel- land Bros, to J. Baldwin & Co., Halifax, containing many of the goods in B., but containing also some goods of which THE QUEEN V. GOLD WATCHES. 183 there is no account whatever. There is a gold watch in- voiced at £9 15s., as to which the claimant being interro- gated, says : " I am carrying on business in Lancashire — did not open the parcel sent to me while there — can't give any explanation of the watch charged in invoice A. at £9 15b." a set of transactions so mixed up and confused as these it is dif&cult to make anything of. The only cer- tainty is, that of all the goods in these original invoices no entry has been made and no duty paid except on the goods in B. excluding the two watches, and that these goods ar- rived here after the seizure of the goods in question in this suit. Now, Mr. Baldwin states that all the goods seized, except the three watches, were bought by him from the Halifax House of McClelland Bros., and that he believes, as I have said, that the duties on them were paid ; but of this there is no proof whatever. Stitt McClelland, whose brother is one of the Birmingham firm, was their agent in Halifax for seven years, and ceased to be so two years ago. He was agent therefore in the fall of 1872, when the seven invoices, produced by Baldwin on his second examination, dated 11th September to November 28th, 1872, which I have marked D. 1 to 7, and most of which are entered in the ledger of McClelland Bros., passed from them. Stitt McClel- land says that his brother who sold the goods remained in Halifax two or three months at that time, and that he him- self did not know what goods Baldwin bought. All he can say is, that as far as he knew, none of the goods in the store were smuggled or illegally imported. His admissions as to the importation of watches through the post office without payment of duty — gold watches, for silver would not pay — and which he considered quite a legitimate business till stopped — I pass by, as being not brought home to the claimant. But he had ample notice at the hearing that the Court would require every possible evidence that could throw light on his purchases from McClelland Bros. And it is remarkable that he produced none of his own books, no sales or cash book, and none of his clerks, neither Porteous ' nor Brady, both of whom are mentioned in the depositions^ were examined. 184 VICE-ADMIRALTY COURT. There is something very mysterious in the relations which subsisted between McClelland Bros, and Baldwin. Stitt McClelland says: " I am not very certain that Baldwin had any connection with the firm here or in Birmingham — never saw any agreement — they did business together — can't say if Baldwin was interested or not." Now, I cannot accept this as a candid statement, especially when I turn to the invoices D. — all in sterling, and one of them, 15th October, 1872, passing all the desks, tables and office furniture at the close of the business, with every step and detail of which the agent and brother must have been familiar, — and to the ledger showing in one place above fifty acceptances of one to two hundred dollars each, and in a subsequent page 179, many thousands of dollars in exchange notes and cash from September, 1871, to September, 1872. It is possible, barely possible, that these may be legitimate transactions between independent firms conducting a legitimate business ; but it cannot be denied that they are clouded with suspicion, which it was the duty and the interest of the claimant to have cleared up. Still, it is not the desire of this Court, nor, as I take it of the Dominion Government, to make the onus probandi weigh too heavily on the claimant by pressing it to an extreme. Baldwin insists that there are 36 gold watches in the invoices D., priced some of them from 30s. to 50s. each, being the cheapest class. Others, at a figure somewhat higher, but none of them of the more valuable sort appearing in the appraisement. As to these last, there is no defence or explanation attempted, and they must, of course, be condemned. So, also, as to the 14 sets gold brooches and earrings, and as to one half at least of the gold finger rings, these brooches and rings appearing obviously «n inspection to be of a superior class of goods to any in the invoices D., but I have gone over these invoices and have marked with my initials on the appraisement such as I can see any fair ground for exempting. In claiming the 35 or 36 gold watches invoiced in 1872, in D. 1 to 7, which range at a higher rate than the average of from 30s. to 60s. sterling, stated by Mr. Baldwin in THE QUEEN V. GOLD WATCHES. 185 his second examination, he makes no allowance for the sales of a whole year, though he kept a hook showing account sales of stock ; and therefore I have exempted about one half of the watches that come within the limits of these in- voices, to which the watch worn by himself is to be added. All the others I adjudge to be forfeited for illegal importa- tion. Mr. Muncey, the custom house appraiser, states : " I have been in this office since it was first established. I never knew of any samples of gold watches or jewelry being submitted to me by McClelland Bros, for examination. There were none during the years 1870-71 or '72." Mr. Kerr says : " The entries in the custom house shew that the whole number of gold watches entered by McClelland from 1869 to the time of seizure does not come up to the number of watches seized." I have good reason, therefore, for thinking that I am doing no injustice in this condem- nation. It remains only that I should deal with the defendant under sec. 75, cap. 6, which runs thus : " If any person, knowingly and wilfully, with intent to defraud the revenue of Canada smuggles, or clandestinely introduces into Canada any goods subject to duty, without paying or accounting for the duty thereon, or makes out or passes, or attempts to pass through the custom house, any false, forged or fraudulent invoice, or in any way attempts io defraud the revenue by evading the payment of the duty or of any part of the duty, on any goods, every such person, his, her or their aiders or abettors shall, in addition to any penalty or forfeiture to which they may be subject for such offence, be deemed guilty of a misdemeanor, and on con- viction shall be liable to a penalty not exceeding two hun- dred dollars, or to imprisonment for a term not exceeding one year, or both, in the discretion of the Court before whom the conviction is had." This section is a transcript from the Canada Act of 1849, 12 Vic, cap. 1, sec. 19, and being imperative in its terms, I adjudge the defendant guilty of a misdemeanor in respect 186 VICE-ADMIBALTY COURT. of the two gold watches which he smuggled by his own ad- mission, and pronounce him liable to a penalty of one hun- dred dollars with costs of suit, under the requisition in sec. 104, sub-sec. 4, of said Act. McCoy, Q.C, for promovents. McDonald, Q.C, for respondents. THE CLEMENTINE. (Delivered September, 1875.) Collision. — The French barque Clementine, on her way to Halifax, col- lided with and sank an American fishing schooner on St. George's Bank. The schooner was at anchor, and the barque sailing at a fair speed. The collision occurred soon after sunrise, and there was conflicting evidence as to the state of the weather, the plaintiffs alleging that it was clear ; the defendants, that there was fog and mist. A sufficient look-out had been maintained on board the barque until within a few minutes before the collision, when the man on the look-out was called down to assist in working the vessel, and before he had returned to his post the schooner was struck. Held, that the barque was in fault, that a sufficient look-out should have been maintained throughout, and that she was therefore liable in damages and costs of suit. The question of jurisdiction having been raised, as neither of the vessels were owned in the British possessions, Held, that the Court had full jurisdiction in the matter. This is a suit brought by the owners and crew of an American fishing- schooner, of 60 tons burthen, called the J. 0. Friend, Jun., belonging to Gloucester, in the United States, and run down on the 15th May last, while at anchor on St. George's Bank, by the barque Clementine, of 375 tons burthen, owned at Bourdeaux, and on a voyage from Hong Kong, with a valuable cargo, for Halifax. The col- lision took place a few minutes before 6 o'clock a.m. on THE CLEMENTINE. 187 the 15th of May. The crew of the schooner had barely time to escape on board the barque, bareheaded, in their stocking feet, without their coats, as if raised from slumber, when the schooner went down. They were transferred at their desire to other fishing vessels in their neighbourhood, and the barque proceeded to Halifax, where she was arrested under a warrant on the 30th May and was subse- quently admitted to bail. Preliminary acts having been brought in, I directed that the pleadings under the rules of 1859 should be by act on petition answer and reply which were completed on the 3rd July. The evidence being in the form of affidavits, each deponent, by the wholesome practice I have introduced in this Court, was subjected to cross-examination and the witnesses for the defence being Frenchmen, I appointed and swore in a competent translator, and the cause came on for a hearing, the nautical assessor being present, on the 12th of July. For the plaintiffs there were read the depositions of the master and three of the seamen of the schooner, including Beck, the watchman on deck at the time of the collision ; of four persons on board four fishing vessels in the vicinity, and of a man who made the repairs on the barque at Halifax. For the defence there were read the depositions of the master, mate and six of the seamen of the barque, being eight out of the eleven persons on board. These depositions are voluminous, and, as usual in such cases, contradictory ; and I have employed the first leisure I have had since the intermediate sitting of the Supreme Court to give them and the principles which they involve a deliber- ate consideration. The first question that arises is the jurisdiction of the Court. This was raised properly, as I think, in the Act on petition (9 L. T. E. N. S. 236, 1 Oldright, 828), and was argued at the hearing. The jurisdiction of the High Court of Admiralty as between foreign vessels under the Act of 1861 and the rule of communi juris is recognized among others in the Courier, 1 Lush. 541, the year after the Act, the Johanna Frederick in 1839, 1 Wm. Eobinson, 35, and 188 VICE-ADMIKALTY COURT. the recent case of the Mali Ivo, L. E. 2 Adm'y 356 ; and I am of opinion that the jurisdiction extends to the Vice- Admiralty Courts under the Act of 1863, sec. 10, sub-sec. 6. If upon general principles and the necessity and reason of the thing I could entertain a doubt, it would be resolved by the decision of the late Judge Black in the cause Johanna, Stuart's Vice -Admiralty, Eep. 43, which is expressly in point. The general rule applicable to the case I find in 1 Par- son's on Shipping, 530, where it is said that if a collision takes place on the high seas between vessels of different countries the rules of the Maritime Law and not those of either country are to determine which vessel was in fault. The schooner, as I have said, was on St. George's Bank, a fishing ground unknown as such to the master of the Clementine, but well-known to all navigators on this side the Atlantic, and marked on Wilson's chart, published in 1871, as a shoal, nearly a wash at the shoalest parts. The collision took place in lat. 41*50 and long. 66"25 or 80, and the captain, who made the first land after St. Helena at Jeddore, eastward of Halifax, thought he was 25 miles east of the shoal. The sun had just risen at 4"36, and we shall find very opposite accounts of the state of the weather. But the captain, who was on deck, and seems to have pre- served perfect discipline on board his ship, recognizes the necessity of a look-out, who was unfortunately withdrawn for a few minutes under the circumstances we shall pre- sently see, when, without notice of a vessel being directly in the track, and seen only when within 100 or 150 yards, the collision occurred. The captain thinks he might have avoided it had the distance been 200 yards ; and Boisnec, the look-out, says he could have avoided it had he seen the schooner from the forecastle a quarter of a mile off. Now, the barque was close hauled, and going through the water at the rate of six miles an hour, so that a very few minutes made all the difference, and perhaps caused all the mischief. The necessity of keeping a look-out in a fog or in passing THE CLEMENTINE, 189 through a fleet of trawlers or over a known fishing ground, appears in all the cases — in the Pepperall, Swabey, 13 ; the Margaret, 15 L. T. Eept. N. S. 86, and others. In the Batavia, 2 Eol. Ad. 407 — a case of damage by sinking a barge by a steamer causing a swell in the Thames — the rule was laid down that it was the duty of the master and crew to keep a look-out right and left in the bows of the forecastle, and if they neglected their duty, and did not see what they might have seen, the swell and the barge, the owners were liable. -In Morrison v. General Steam Navigation Company, 8 Exch. 738, Pollock, C.B., said that no change in the law had been effected by the regulations in the Admiralty as to hghts, but that persons in navigating their vessels are bound to keep a look-out just as they were before these regulations were made ; and if it could be clearly made out that a vessel having no light had been run down by another from sheer carelessness and negligence in not keeping a good look-out, that other would be liable in damages. So also the doctrine as to look-outs is reviewed in the Ottawa, 3 Wallace's Eep. of the Sup. Court of the United States, where it is said that they should be stationed on the for- ward part of the vessel, and actually and vigUantly employed in the performance of their duty. The state of the weather, whether clear or cloudy, imme- diately before and at the time of the collision, is of great moment in this inquiry, and obliges me shortly to review the evidence which brings out some striking results. Lowrie, the master of the schooner, and Beck, the watch- man, say that it was fine though somewhat overcast, there was no fog and the horizon was clear. Beck saw the barque from four to five miles off ; he knew by the sails that she was a barque, not a ship, was close hauled, on a wind — it was about an hour from the time he first saw her till she ran into the vessel. This is confirmed by Marston and by the four independent witnesses. First. Silva, of the Dictator, which was at anchor about a mile-and-a-half from the Friend, says the morning was 190 VICE-ADMIRALTY COURT. quite clear and with no fog whatever. At the time of the collision vessels and other objects could clearly be seen at a distance of five miles from where the Dictator lay. A little before 5 o'clock in the morning he saw the barque about three miles from them ; she was on a starboard tack and her course about north-east. He saw her pass, pretty close by the stern of a vessel some distance off — she continued her course and soon after he saw her collide with the Friend, and a few minutes afterwards he saw the schooner sink. Secondly. Nagle, of the C. B. Chapman, says that he came on deck about half-past 4 o'clock. The morning was quite clear, and there was no fog, the sun had just risen out of the water and entered a cloud. The sky was a little cloudy, but it was clear below. He was sm-e he could see the hull of a vessel five miles off. Thirdly. Eogers was anchor-watch in the W. H. Ray- mond from 4 to 5 o'clock. He had had twelve years' experience at sea. He saw the barque pass within one and a half mile. Just after she passed they took down their signal light. The barque, after passing them, and before the collision took place, passed the C. E. Sayward. The morn- ing was clear, without fog, but somewhat cloudy. There was nothing whatever to prevent those on board the barque seeing the Friend several miles before they struck her. Fourthly. Lynch, of the C. E. Sayward, gives the same account. He could see for seven or eight miles. There was no fog. The barque sailed close by their stern, and he continued to watch her till she collided with the Friend. There was no one on her topgallant forecastle. The only two men he saw on her deck were on the poop, aft of the mizzen rigging. Let us contrast these statements with those of the defence. Messac, the master, andLiet,the mate, without distinguish- ing their several passages, say that from one o'clock of the morning of the 15th until four o'clock the wind was from the east-south-east, and blowing a smart breeze, with fog THE CLEMENTINE. 191 and misty clouds ; that until the collision took place, and thereafter, until the barque made Jeddore, it was foggy, misty, with scud, and occasional clearings, with rain, sometimes dense fog ; that from four o'clock there was fog all the time. The weather was cloudy, occasionally break- ing up and lifting, and it was cold. Messac, in his cross- examination, says : "I came on deck at five minutes past four. It was daylight. A fog was seen in the north. It was coming up all around. It was about 150 feet high, coming along in clouds. On that morning, according to the state of the fog, I might have seen a vessel at anchor three-quarters of a mile off, while at other times I could only have seen one at the third of a mile, and even less." Liet, in his cross-examination, says : " The weather was very cloudy, and extremely overcast ; one could not see far ahead. There was fog low down on tlie water. I left the deck at four o'clock, and came on deck again on feeling the shock of the collision in my cabin. The weather was still dark and foggy — much the same as when I left deck. Late in the morning the weather cleared up somewhat. When I came on deck at the time of the collision I could not see more than a mile, and that with difficulty." These admis- sions of the two principal officers that when the vessel collided, the actual sunrise having been some minutes before, and the cabin boy taking down the lights, it was daylight, and that a vessel could be seen from the third of a mile to a mile off, are very material. They stand inde- pendently of the weight of evidence, for the promovents, and prepare us for the circumstances of the colHsion. It will be seen by the annexed diagram prepared for me by the assessor, that the Friend was in the track of the Clementine, the C. E. Sayward being a little to the east, and the Raymond to the westward of her course. The C. B. Chapman was a little to the north-east of the latter. The barque passed between two of these vessels at short distances. The Dictator was to the north-east of the Friend. Yet none of these vessels were seen from the barque, as they say, by the look-out or other seamen. The barque sounded no 192 VICE-ADMIEALTT COURT. fog-horn, and can hardly complain of no fog-horn having been sounded from the Friend, when, as Beek says, there was no fog. No bell was used on either side ; Messac was the first who took the alarm. The first intimation he had of danger was the glimmer of a sail partly hoisted, low on the water right ahead. He immediately ordered the helm to port, and it was instantly done, but it was too late. As near as he could judge, when he first saw the schooner, the distance might have been 100 yards or thereabouts. She was struck near the starboard fore chain plates. The Clementine's topsails were put back and she fell off. When he first saw her he thought she was under weigh, but being at anchor she did nothing to avoid the collision. There was little time indeed, for between the captain's order to port the helm and to let the lee braces or jib sheets go and the collision there was an interval of only thirty-five to forty seconds. This is the captain's estimate, and he adds that he would have had time to bring up in the wind and check the speed if he had seen the schooner at a distance of two hundred yards, and the shock of the collision would have been less ; with the current that was running he did not think he could have quite avoided a collision at that dis- tance. It is obvious, therefore, that the difference of 200 or 300 yards in distance, and of four or five minutes in observa- tion, led to the collision and the sinking of the Friend. That the bark had a sufficient watch on deck, and that everything that could be done was done after the collision took place is clear. There is no negligence or fault that I can see imputable to the barque, except the absence or the withdrawal from hia proper place, and that for a legitimate purpose, of the look-out on the forecastle, who, had he been there, must have seen the vessels he was passing, and the Friend directly in front. " On board my barque," says Messac, "the look-out station is on the topgallant fore- castle. In foggy weather, such as I have described, it is necessary to have a look-out on the topgallant forecastle THE CLEMENTINE. 193 the whole time, but one is sometimes obliged to call him down to assist in the working of the vessel. The reason of my calling the look-out down was that he was required to help in the working of the vessel, and that I knew he could see ahead during that time, with the exception of an interval of about fifteen seconds from the place where he stood." Boisner, the look-out, in his cross-examination, says : " I came down from the forecastle because I received an order from the captain to do so ; we went to sway up the topgallant staysail ; we were about two minutes doing this ; we then went to sway up the main topgallant stay- sail ; we were about ten minutes swaying that sail up ; we then went to the starboard and stood by the weather fore- brace ; we had just time to lay hold to haul when we heard the captain cry, ' We are run into.' This was just before striking, — no one had time to go up upon the forecastle." This witness also stated that on coming on deck in the morning he went up on the topgallant forecastle — that he remained there about thirty-five minutes and saw no vessel during that time. That is just before the collision. Whereas Messac, in his cross-examination, says : " At five minutes past four I passed close to two schooners with triangular sails on the mizzenmast, which appeared to be under way, and had to go about five degrees off my course to avoid them. They were about 100 yards from each other, and had their lights burning. The look-out man reported both schooners. The look-out man who reported the schooners was Nona Boisnec." ' The proximity of these vessels, and the state of the weather, if it were misty and clouded, as the defendants describe it, rendered it the more imperative on them to keep an unin- terrupted and vigilant look-out. The case that most nearly resembles this is that of. the Mellona, 3 W., Eob. 7. The ship was making her way through the Cockle Gulf, in a dark, hazy night, with frequent snow-squalls. The look-out con- sisted of the master and one seaman. The master had gone below to look at his chart, when another vessel, which had Bot been observed in the darkness, ran into the Mellona. V-A.B. 14 194 VICE-ADMIRALTY COURT. The question was whether the look-out was sufficient, con- sidering the state of the night and the proximity of other vessels. Dr. Lushington thought that if the master found it necessary to go below for the purpose of consulting his chart, he was bound to have called up another of the crew to supply his place on deck, and, with the concurrence of the Trinity Masters, pronounced the look-out insufficient, and the Mellona in fault. I have quoted the material parts of the plaintiff's evidence as to the weather. On other points that were urged at the hearing, it is unnecessary to go into it minutely. If be- lieved, it establishes the facts of the Friend having been anchored and secured like the other fishing vessels around her, and according to the usage on St. George's Bank; that a watch was on deck ; that her lantern was lit and sus- pended in the proper place, and that it was impossible for the Friend, so situated, to escape from the danger. Till the barque was close upon him. Beck apprehended no colli- sion ; and if he had apprehended it, he was powerless, while the rest of the crew, with himself, had barely time to save their lives. I am of opinion, therefore, that the plaintiffs have clearly established their case, and that the Clementine is liable in damages and costs of suit. The damages will comprehend the value of the Friend as she stood at the time of her being run into, with her outfits, estimated extravagantly (as I cannot help thinking) at $7500, and the fish that he had caught, valued at $600. Interest and anticipated profits I think should not be claimed. Something may bu allowed for the clothes of the crew, as in the Irish case of the Cumberland, 5 L. T. Eep., N. S., 476. The reference will be either to the registrar alone, or assisted by one or two merchants, as the parties may desire. It will be seen by the assessor's letter, which I will now read and file, that he has arrived at the same conclusion. as the Court ; THE CLEMENTINE. 195 Halifax, Nova Scotia. August 2Sth, 1875. Sir,— Having listened to the evidence and arguments adduced, and having carefully read over the evidence of the several witnesses in the collision between the French barque Clementine and the American schooner y. O. Friend, Junr.. I have to give it as my opinion that the barque Clementine was in fault, under the following circumstances :— It would appear that, on the morning of the 15th of last May, the Ameri- can schooner y. O. Friend, Junr., while at anchor and engaged in the law- ful pursuit of tishing oji that well-known ground " George's Bank," was run down and sunk by the French barque Clementine, Bourdeaux, Messac, master, while on a voyage from Hong Kong to Halifax, Nova Scotia. The collision appears to have occurred at or about 4.50 a.m., the sun having risen at about 4.40, but obscured at the time by a cloud. It is admitted by the master of the Clementine and his witnesses that when the accident occurred it was daylight, the side lights having been previously taken in. The master of the Clementine and his witnesses endeavour to prove that the weather was foggy that morning. Thus it will be seen how necessary it was to keep a good look-out ; more particularly so, when it is stated in evidence that at " five minutes past four " the course had to be altered to avoid two schooners reported by the look-out. It is beyond doubt that the Clementine was seen that morning by many independent witnesses in other vessels, particularly by James Rogers, of the schooner W. H. Raymond, to pass to the southward of that vessel at about 4.30 a.m., and by James Lynch a short time after, to pass close to the northward of the schooner Carrie E. Sayward just before the barque collided with the y . O. Friend, Junr. It is admitted in evidence that the Clementine, at the time of the collision, had no "look-out man," properly so called, he having been called off to assist in making sail a short time before the accident occurred. If the J. 0. Friend, Junr. was seen by the master of the Clementine at a distance of 100 yards, and a collision thought to be inevitable, it was his duty to " go about " or "throw all aback " immediately, to endeavour to avert the impending disaster. The evidence goes to prove that this was not done ; and therefore, upon a careful consideration of the above circum- stances, I am led to the belief that the y. O. Friend, yunr. was sunk through the negligence of the master of the barque Clementine, in not having caused an efficient and proper look-out to be kept. I have the honour to be, Sir, Your obedient servant, P. A. Scott, Cap. R. N., Chairman of the Board of Examiners of Masters and Mates. The Hon. Sir Wm. Young, Knight, Chief Justice, &c. Blanchaed, Q.C, and N. H. Meagher, for promovents. Lennox, Q.C, for respondents. 196 VICE-ADMIRALTf COURT. THE GLADIATOE. (Delivered November 3RD, 1876.) Violation of Revenue Laws. — The schooner Gladiator, whereof one Davis was master, was engaged in the trade between Boston, U. S. A., and Yarmouth, N. S., making regular trips between those ports. Sus- picion having been aroused as to there being smuggling operations, an investigation on the part of the Custom House authorities revealed the fact that the smuggling of kerosene oil had been systematically carried on by means of false outward and inward manifests. Held, that the vessel, with her apparel and furniture, was forfeited to the Crown, and that the master was liable, under the Dominion Customs Act, 31 Vic, cap. 6, in eighteen penalties, as follows: — Six, of $400 each, for making an untrue report of goods on board ; six, of $200 each, for being concerned in the landing and removal of goods liable to forfeiture, and six, of $400 each, for making untrue declarations. This case was recently heard before me, and revealed a series- of delays in the prosecution very unusual in this Court, and arising from causes of which I am uninformed. The vessel was seized at Yarmouth for smuggling so far back as November, 1872. Having been released on inter- mediate bail, a libel was filed against her in November, 1873, and another libel at the same term against James M. Davis, the master and part-owner. Sufficient bail was put in for both, and a mass of testimony has accumulated, taken at Boston, Halifax and Yarmouth, furnishing, with the oral evidence of Mr. Kerr at the hearing, the facts on which the argument proceeded. The substance of these may be compressed into a narrow space. In 1871 and 1872, the Gladiator was a trading ship, of 125 tons burthen, between Yarmouth and Boston, and the smuggling of from one to two hundred barrels of kerosene oil is charged as having been carried out in nine voyages, between the 29th May, 1871, and!^the 81st May, 1872, in seven of which Davis was master. The proof arises from a comparison between the outward manifests at Boston and the inward manifests at Yarmouth and the admissions of Davis. Mr. Kerr, under instructions from the Eevenue THE GLADUTOft. IQif Department at Ottawa, proceeded to Boston, and made a thorough search, with the aid of the Custom House autho- rities there, into this and other suspected dehnquencies. " I have examined," he says, " the manifests in Boston of all the vessels sailing from that port to New Brunswick, Nova Scotia and Prince Edward Island for the last ten years," the results of which he states. Among these were the manifests for the nine voyages in question, certified copies of which are in proof. By the printed form of the oath in the seven which are signed by Davis he swears that they severally contain, " according to the best of his know- ledge and belief, all the goods, wares and merchandize then on board his vessel," and if any other shall be laden on board previous to her departure from the port, he swears that " he vnll immediately report the same to the collector." Those manifests show that on the nine voyages 230 barrels of kerosene were laden on board the Gladiator, as parts of very large and miscellaneous cargoes. Next comes the evidence of Mr. Howe, the collector at Yarmouth, who produced the original reports inwards of those nine voyages, several of them subscribed by Davis, with the usual printed form, in which he declares that the entry or report contains "a true account of the lading of the ship and consignment of all the goods and merchandize in the said ship to the best of his knowledge and belief, and that bulk had not been broken nor any goods delivered out of said ship since her loading in Boston." One of the re- ports of 30th September, 1871, has not been found, and the shipment of the 26th, showing twenty-five barrels, I allow the whole as landed, although the probabilities are all the other way, and the other eight entries, showing 72 barrels. In all, the difference between the two sets of entries turns out to be 133 barrels. The defence to this branch of the proof reveals, by nu- merous witnesses, both at Boston and Yarmouth, a loose- ness of dealing and a facility in taking oaths which are very astonishing, and reduce the value of outward manifests to a very small figure. I shall cite only a few passages. Mr. 198 VICE-ADMttlAL'rY COtRT. Hall, the agent of the ship at Boston, says : " The mani- fests are imperfect. Probably a, large amount of goods would be shipped which was not upon the manifests, as at the time of clearing the captain has no knowledge of what may come upon his vessel ; also goods therein described may not be shipped on board. In most cases the vessels clear in the middle of the day in which they sail at night. Hence the manifests cannot be otherwise than very inac- curate." Mr. Deling says : " Sometimes all the goods do not get aboard, and sometimes more than we clear are on board. Our manifest is no criterion of what our vessel has on board, and is only an estimate of what she has on board." Mr. Gammage says : " I have known many instances in which the manifest mentioned more goods than were actu- ally on board." The evidence of Davis and his witnesses at Yarmouth is to the same effect ; and there can be no doubt that great and constant irregularities in the conduct of the business with the Boston Custom House are estab- lished. But, conceding it all, it would be difficult to per- suade the Court that it accounts for the discrepancies here. On the three voyages of 25th May, 23rd June, and 5th September, 1871, there appear respectively in the outward manifests 25, 25 and 10 barrels, but not one is entered at Yarmouth. On the 19th October, there are entered at Boston 50 and at Yarmouth 15, and so on. How is it possible that in the three first entries there were none of those sixty barrels on board, and in the other only fifteen in place of fifty ? These considerations prepare us for the second branch of the proof, resting on Davis himself. Mr. Kerr testifies that Davis admitted, after the seizure, that he had cleared a larger quantity of oil than he had entered, and the only excuse he gave, his only reason for so doing — certainly a most childish and evasive one — was that it would enable him to get the empty kerosene oil barrels into the United States duty free. But Davis, in his answer to the fifth cross- interrogatory, is much more conclusive, and implicates THE GLADIATOR. 199 his co-owners, Messrs. Law & Co., as well as himself. He there acknowledges that in the years 1871 and 1872 he pur- chased in Boston various goods, and, among them, kero- sene oil, to the extent of 200 barrels or more, which he put into the hands of William Law & Co., to be sold for the benefit of the vessel and all concerned. " I used to deal in this way," he says, " from time to time, when I found that I could do so with advantage." Law & Co. accounted for the proceeds to Young, Kinney and Corning, the other part- owners, and not to Davis, but neither the one firm nor the other, nor Davis himself, give in any account of the vessel by which the 200 barrels of oil were shipped, nor of their entry for duty ; and the conclusion is inevitable that the 133 barrels in this case formed a part of the 200, and were landed from the Gladiator in contravention of the revenue laws. Under the 82nd section, therefore, of the Dominion Customs Act, 31 Vic. cap. 6, I pronounce the said vessel, with her apparel and furniture, forfeited to the Crown, and award full costs. We have now to consider the penalties to which the master is liable in respect of seven of the above entries, under the several sections of the above Act, as charged in the second libel, to wit, the 7th, the 10th, sub-sec. 2, the 82nd, and two under the 89th section. This is doubtless a bad case, a case to be made an example of, and the instruc- tions of the Minister of Justice produced at the hearing, directed that proceedings should not only be instituted for the condemnation of the vessel, but also the forfeitures and penalties attached to the smuggled goods, or to the person or persons concerned in the smuggling of such goods. I shall take them, therefore, in their order. The 7th sec, as regards a forfeiture by the master, applies rather to the breaking qf bulk contrary to the Act than to the offence we are dealing with. The 10th sec, sub-sec 2, imposes on the master a forfeiture of $400 for making an untrue report of the goods he has on board, and I hold that, of the seven reports made by the defendant, six (including that of the aoth September, 1871) were untrue. By the 82ud 200 VICE -ADMIRALTY COUET. section, every person concerned in the unshipping, landing or removal of goods liable to forfeiture, shall, besides the goods themselves, forfeit treble the value thereof, or the penalty of $200, at the election of the ofiQcer of customs, or other party suing for the same. The officer prosecuting here elects to proceed in his libel for the treble value of the goods, which value he alleges in the aggregate to be the sum of $3,200 ; but, as no reliable evidence is given of such aggregate value, nor of the value of the goods in the six entries for which Davis is responsible, I am not obliged to impose this severe penalty, but adjudge each of the six entries as entailing upon him the penalty of $200. The 89th section imposes a penalty of $400 on any person making an untrue declaration ; and each of the six entries and declarations being untrue, I hold that the said penalty attaches to each. The penalties imposed by the same sec- tiftn, and claimed in the libel, for not truly answering the questions of the custom-house officer, I pass by. These accumulated penalties come to a very large amount, but the Court has no authority to mitigate or reduce them, nor has any precedent to that effect been cited by defendant's counsel. Under the Dominion Cus- toms Act, 31 Vic. cap. 5, sec. 50, and cap. 6, sec. 113, the remission of the whole or any part of any penalty imposed by law belongs to the Governor in Council ; and in this case I doubt not the power of remitting the penalties specified in this judgment will be wisely exercised. I pronounce the said James M. Davis liable for the afore- said eighteen penalties, under the 10th, 82nd and 89th sections and the evidence before me, with full costs of suit, as required by sub-sec. 4 of sec. 104. N. H. Meagher, for Government. S. H. Peltin, for Defendant. THE AUGUSTS ANDEB. 201 THE AUGUSTE ANDEE. (Delivered August 31ST, 1877.) Salvage.— The Auguste Andre, a Belgian steamer, sailing between Antwerp and New York, encountered severe weather and had her rudder carried away. She continued her course in that crippled condition until fallen in with by the Switzerland, about 175 miles distant from Halifax, who took her in tow, and brought her into port after three days towage. The weather was moderate during all that time, and the services rendered, while extremely opportune and valuable, were not of a. highly meritorious character. The values of the respective steamers and their cargoes, freight, etc., were as follows : — The Auguste Andre, vessel worth $127,500 ; cargo, $122, 500 ; freight, 83,592. The Switzerland, vessel, 8325,000 ; cargo. $250,000. Held, that $20,000 should be awarded as salvage; of which $12,000 should go to the owners, $1,500 to the master, and the balance among the crew, according to their ratings. The modern decisions cited and reviewed. This vessel, a Belgian steamer, of the burthen of 1,471 tons, on a voyage from Antwerp to New York, having lost her rudder on the 29th December last, and in that crippled condition having slowly continued on her course until the 14th January, fell in with the Switzerland, another Belgian steamer, of the burthen of 2,850 tons, which took her in tow in lat. 41° 45 ' north, long. 62° 43 ' west, about 175 miles south-east from Halifax, and about the same distance from Sable Island, lying to the north-east. The two steamers directed their course to Halifax as the nearest port, and arrived there on the 17th January ; and on the 19th the usual warrant was issued on a claim of salvage for £15,000 sterling. Bail was afterwards put in for $50,000, and the salving ship proceeded on her voyage to Antwerp, having sailed from New York, and been detained in all about four and a half days. Flaherty, her first officer, remained behind to give evidence, which was completed on the 24th Y-A.B. 15 202 VICE-ADMIRALTY COURT. February ; when Knudsen, the master of the A uguste Andre, was examined and cross-examined at enormous length, his single deposition containing nearly 200 folios, and in many particulars being utterly at variance with Flaherty's. Unfortunately, in cases of collision especially and of salvage, this Court has had large experience of conflicting testimony, but never to so large an extent as in the present. There is an immense mass of evidence before me, with numerous exfiibits ; and without trusting too much to either side, I must look to the undisputed facts and to the probabilities of the case, to ascertain, if possible, its real merits. That it is not a case of towage merely, as was contended, but is a case of meritorious salvage, to be liberally, but not extra- vagantly rewarded, is too clear to be denied ; and to me it is equally clear that the merit of the service has been grossly exaggerated. It has been my duty, of course, to read a second or a third time, and to collate the contradictory statements and opinions with which the case is overladen, and to separate the reliable and the true from what is obvi- ously false or distorted. Let us look, then, first of all, to the account given of the voyage up to the 14th January, in which there are no con- tradictions, proceeding, as it does, entirely from the defen- dants. The Auguste Andre sailed on the 16th or 17th of December (both dates are given), with a light cargo, having thirty-five persons on board, including her usual complement of eight seamen and one passenger — she had her boilers and engines tested before she left — they are tested, Knudsen says, every voyage before leaving — she is three years old, and was appraised here as of the value of $127,500 — the agreed value of her cargo was $122,500. Three-fourths of her freight was appraised at $3,592. Her logbook shows that she encountered some rough weather to the 29th De- cember, when the pitching of the sea broke the rudder, and a piece of it fell away, having been bent fearfully, as the logbook expresses it, from starboard to port. The diagram in proof shows how a jury rudder was skilfully constructed, and although the steaming was sometimes interrupted, still, THE AUGUSTE ANDRE. 203 with the aid of the sails, some of which were blown away, the vessel kept on her course for sixteen days, having made, as Knudsen says, 1300 miles of westing, or, as Captain Jackson computes it, 975 miles. That she was in her course, is clear, both from Knudsen, who says that he had been twenty-five times about the same spot on former voy- ages, and from the fact of his meeting the Switzerland out only two days from New York. The Auguste Andre makes the usual signals, and displays the letters indicating dis- tress, and fires a gun ; and now the contradictions begin. The Switzerland sent a lifeboat, as it is termed, but which Plaherty says is the same as a whale boat, with himself and five men on board ; and as Knudsen Durt, his first officer, and Gillegot, his second officer, say, they reached -the Auguste Andre, the sea being perfectly calm, and Fla- herty came up the ladder at the usual place without the least difficulty, the men in the boat, one or two feet from the ship, staving it off with an oar. But this simple ser- vice is represented by the salvors as a service of extreme and absolute danger, though admissions slip out that very much diminish it. Flaherty says that, after being asked whether it was safe to go in a boat, and declaring he would try it ; he was of opinion that where the ladder was at first the boat might have been capsized, and probably their lives lost, but vdnds up with saying that he got on board the Andre after a little difficulty. But Neilson says that it was hard work to get Flaherty on board, and DeSmet and Van- schaik dilate upon the danger ; while Jackson says the boat was kept off with the oars, and Andre, who was in her, des- cribes them as stuck out to keep her away. There is not much here to induce a special allotment in their favor. Another feature in the case is the evidence of repeated declarations by the master, the boatswain, the carpenter, and other men of the Andre — all in one strain against the defendants. Now, as regards the master, such admissions, if uncontradicted, will have full weight. But his admis- sions testified to by Flaherty are denied by Knudsen, and those testified to by Jackson there was no opportunity of 204 VICE-ADMIRALTT COURT. denying. As regards the inferior officers and the men, the distinction between them and the master is taken by Dr. Liishington, in the Midlothian, 15 Jurist, 806 — 5 L. f the proceeds of the goods brought to Halifax. The Flora, p. 48. By a troop-ship. One of Her Majesty's troop-ships, having picked up a derelict barque, with a valuable cargo, and brought her into port, was not allowed by the Admiralty authorities to receive any allowance by way of salvage. The John, p. 129. By man-of-war. One of Her Majesty's men-of-war rendered salvage services to a derelict ship, but was not allowed by the Government authorities to make any claim therefor. The Herman, p. iii. By passengers. This vessel, while on a voyage from St. Pierre to Halifax, stranded on Sable Island. Only a fresh breeze was blowing at the time, and she received no serious injury, but her situation was one of consider- able danger, if not speedily rescued. Under the master's direction the crew and passengers landed with all their clothes, provisions, etc.i but the vessel was not stripped, and the master denied any intention of abandoning her. They all left her for the night ; and the following morning the six passengers, taking a boat from the Island, boarded the vessel, and without much difficulty, and at no personal risk, succeeded in floating her off; when the master and crew joining her in their own boat, they completed the voyage in safety. The passengers having taken proceedings to recover salvage, as in case of derelict, the owner of the vessel paid the sum of £^0 into Court, which they refused. There was much conflicting testimony upon the points; first, whether the master really intended to abandon or not ; and second, the merit of the salvage services rendered. Held, that the tender of £^0 was sufficient, but that in view of the conflict of evidence, the parties should pay their own costs. The Stella Marie, p. 16. 308 INDEX. Salvage of life. A foreign ship becoming disabled in the Gulf of St. Lawrence, her crew were taken off by one set of salvors, and safely landed at a port in the island of Cape Breton. Subsequently another set of salvors fell in with the ship and brought her into an adjoining port. The services in both cases were highly meritorious and rendered while the disabled vessel was about sixty miles from the nearest land. Held, that both sets of salvors were entitled to salvage, and a sale of the ship having been effected for $2,560, the Court awarded the sum of $660 to be divided among the salvors of the crew, and $900 among the salvors of the ship. The Heindall, p. 132. Awards made in the nature of life-salvage to fishermen who had been instrumental in saving many lives from a passenger steamer wrecked upon the coast. The Atlantic, p. 170. On derelict. t The rule stated. See The Ida Barton, at p. 241. Salvors, Conduct of. See The Rowena, p. 255, and The Charles Forbes, p. 272. Seamen's wages, special contract for. Two out of three promovents shipped at Bermuda, on board the ship libelled, a blockade runner, for the round-voyage from Bermuda to Wilmington, North Carolina, and thence to Halifax, Nova Scotia. The remaining promovent shipped at Wilmington in room of one of the others. No ship's articles were signed, but there was evidence to show that the master had contracted to pay to each of the promovents certain specified sums, in three equal instalments. The contract was absolute as to two of the instalments, and, as to the third, there was a condition that was to be paid only if the claimants' conduct were satisfactory. Held, I. That this was not an ordinary engagement for seamen's wages, but a special contract. The City of Petersburg, p. i. Seamanship, want of. See Collision. Security for costs. See Costs, Security for. INDEX. 3-09 Smuggling, conviction for. Forfeits the vessel though the owner be innocent. See The Seaway, p. 267. Tenders in the Admiralty Court. The practice with regard thereto. The Marino, at p. 53. Tender, when sufficient, entitles defendant to costs. See The Peeress, p. 267. Towage and salvage, distinction between. See The Herman Ludwig, p. 211. Validity of bottomry bond. See Bottomry Bond. Vice-Admiralty Courts, jurisdiction and powers of. City of Petersburg, p. i. Violation ot Dominion Fishery Acts. See Fishery Acts, etc. Violation of Revenue Laws. The vessel, while proceeding from the island of Saint Pierre, which is a colony of France, to Newfoundland, put in at Aspy Bay, in the island of Cape Breton, the said Aspy Bay not being a port of entry, without necessity from stress of weather, and having dutiable goods on board ; some of which goods, the evidence went to show, had been there landed, and no duty at any time paid thereon. Held, that, under sec. g of 31 Vic. cap. 6, the captain of the vessel had incurred the full penalty of $800, inposed by that section. The Minnie, p. 65. 310 INBEX. Violatiou of Revenue Laws — Continued. The schooner Gladiator, whereof one Davis was master, was engaged in the trade between Boston, U. S. A., and Yarmouth, N. S., making regular trips between those ports. Suspicion having been aroused as to there being smuggling operations, an investigation on the part of the Custom House authorities revealed the fact that the smuggling of kerosene oil had been systematically carried on by means of false out- ward and inward manifests. Held, that the vessel, with her apparel and furniture, was forfeited to the Crown, and that the master was liable, under the Dominion Customs Act, 31 Vic, cap. 6, in eighteen penalties, as follows: — Six, of $400 each, for making an untrue report of goods on board; six, of S200 each, for being concerned in the landing and removal of goods liable to forfeiture, and six, of $400 each, formating untrue declarations. The Gladiator, p. 196. Action for forfeiture and penalties against a merchant doing business in Halifax, the goods seized under the charge of duties being unpaid thereon consisting of watches and other jewelry. The claimant alleged that he had not imported the goods himself, but purchased them in Halifax, but failed to establish his defence, the dealings between him and his alleged vendors being exceedingly complicated and suspicious. In addition to this, certain statements of his own were brought in evidence admitting that he had not paid duty on two of the watches seized. Held, that the goods should be forfeited, and that the claimant should pay a fine of $100, with costs of suit. The Qtteen v. Gold Watches and John Baldwin, Claimant, p. 179. The schooner Seaway, owned by Conrod and Cook, and trading between Cape Breton and Halifax, fell under the suspicion of the Custom's authorities, who set a watch upon her, and a systematic course of smuggling was discovered, the smuggled goods being taken to Cook's premises. There was no evidence implicating Conrod in any of the transactions. Held, that the vessel was forfeited, with that portion of the cargo which belonged to Cook ; but, as Conrod was innocent, his case was recommended to the Government, that his interest in the vessel might, if possible, be protected. The Seaway, p. 267. The defendant and three others, being discovered in the illegal distilling of spirits, the materials and apparatus used by them were seized. No claim having been put in for them, they were condemned, INDEX. 311 Violation of Revenue Laws — Contiimed. and proceedings then taken to recover the penalties imposed by the Act. The defendant appeared under protest, denying the jurisdiction of the Court. Held, that the Court had full jurisdiction in the matter. The Queen v. Flint, p. 280. W Wages oi master. The master of this vessel, who was also a part-owner, instituted proceedings in the Court of Vice-Admiralty against the ship to recover a balance of wages Sue him. Held, that the Court could entertain his claim, and that the fact of his being a part-owner did not aftect his right to recover. The plaintiff had accepted a promissory note from three of his co- owners for the amount he now claimed, the' note never having been paid. Held, that this did not take away his lien upon the ship, although sold to. and paid for, by a third party, in ignorance of the debt. The Aura, p. 54. The master of a vessel having brought an action against the owners, claiming a large balance due him for disbursements and wages, they pleaded inaccuracy in the charges, fraud, and mismanagement of the vessel, but produced no evidence in support of their charges against him. The master's accounts being very complicated were referred by the Court to competent persons, with the concurrence of both parties to the suit, and the referees, after a thorough examination, reported in favor of the master to the extent of two-thirds of his claim. To this report the owners filed numerous objections, alleging fraud, etc., as before. Held, that in the absence of direct proof of collusion or fraud on the part of the master, the report must be confirmed. Exceptional rules in the adjustment of such accounts. The y antes Fraser, p. 159. See Master's Wages. Wages of Seamen. See The City of Petersburg, p. 1. 312 INDEX. Wages of Seamen — Continued. Action by master and three seamen for their wages. The accounts produced by the master, who had also acted as ship's husband, were extremely unsatisfactory and unreliable. He claimed a balance due him of $317.80, but failed to establish his right to more than $34.80. There was nothing against the demand of the other promovents, and the amounts claimed were awarded them. The sums so recovered, being all under $40.00, and therefore might have been sued for before two Justices of the Peace or a Stipendiary Magistrate. Held, that the promovents should not have their costs. The Ann, p. 104. Wharves damaged by steamer. See Damage to Wharves. Printed for the Publishers by Moore & Co., Equity Printing House, Toronto. \ '2P-3>^^:^ 3» '">->^> iSMJj^^ ::^:>^^m^. '^t^^^. ':>-^''iS^t>^. y,xy£^:^.ri l3»:>:^s»^- TSi, ■ >>:s. :.~>■^i^->,- .i> lg:>'^> ^C^''"^^ :^-: ■--.:r~ -_-f^"-" -„;»' i.ijj^''.^- -^ -^■■■.' ^ .-ja- ...,->.5 ,,.-»^ ;:::5 ■ ^^^ 3?) ■.>-■> ^ -ft- J ''*'V> ■■■