A form of a memorandum under section 7 that the County Form of Court in Admiralty shall retain jurisdiction may be adapted memorandum. from one in the Appendix (p). apply for a As regards the persons who may apply to the County Court Who may for the purpose of having an Admiralty cause transferred to the High Court, "The County Court Rules, 1875," provide as follows: transfer. "Any person claiming to have an interest in the vessel or Order "property, whether cognisable by the Court or not, may inter- XXXIII. vene for the purpose of having the case transferred to the rule 10. "High Court of Justice (q)."-Örder XXXIII. r. 10. 66 The form of an order for transfer to the High Court under Form of section 7 (on the ground of excess of jurisdiction) is pro- order. vided (r). There is also another form prepared for use when the transfer is either to the High Court or to another County Court under section 8 (8). It is presumed that the above rule has no application to Application cases under 31 & 32 Vict. c. 71, s. 6, as that enactment of above rule. expressly provides that the application for a transfer of a cause under its provisions shall be made to the High Court "by any "party to an Admiralty cause pending in a County Court" (t). order of transfer. As regards the effect of an order of transfer it has been held Effect of that where the order of transfer is made by a County Court in Admiralty under section 8 of "The County Courts Admiralty Jurisdiction Act, 1878," and is for the transfer of the action to the High Court, the High Court can subsequently exercise in such action such jurisdiction only as was possessed by the County Court before the transfer (u). Where the order directs a transfer, the registrar must transmit such order and the previous proceedings in the action to such other Court in the manner indicated by the following rule of "The County Court Rules, 1875" : "Where a Court orders the transfer of an action to the Order "High Court of Justice or to another Court, the registrar shall XXXIII. "send by post the order, together with the proceedings, to the rule 20. registrar of the High Court of Justice or to the Court to 66 "which it is transferred."-Order XXXIII. r. 20. After a transfer under either of the above sections, the action Proceedings proceeds as if commenced originally in the Court to which it is after transfer. transferred. Appendix II. Form 78. This rule originally ran "to the High Court of Admiralty." But "The County Court Rules, 1876," provide : "In Ord. XXXIII. r. 10, for the word 'Admiralty' the word 'justice' is Order "hereby substituted."-Order XXXIII. r. 10 a. Appendix II. Form 252. Appendix II. Form 253. (t) Ante, p. 746. (u) The Elpis, L. R. 4 A. & E. 1. XXXIII. rule 10a. BOOK IV. JURISDICTION AND PROCEEDINGS IN ADMIRALTY Jurisdiction of County Courts in Admiralty is (1.) Original or (2.) Ap pellate. Present chapter only embraces CHAPTER III. THE JURISDICTION OF COUNTY COURTS IN ADMIRALTY OVER THE jurisdiction possessed by County Courts in Admiralty is, in its nature, of two distinct kinds. It is either original or appellate. The original jurisdiction comprised both the jurisdiction possessed by the County Courts to entertain Admiralty actions of the ordinary character, and also the jurisdiction which they enjoy under certain special statutes. In the present chapter it is proposed to consider the original jurisdiction, and, moreover, original juris- only so much of it as relates to ordinary actions. That portion of the original jurisdiction which is exercised under special statutes will be considered in separate chapters (a). And the appellate jurisdiction possessed by County Courts in Admiralty will form the subject of another distinct chapter (b). diction as regards ordinary action. General juris- 31 & 32 Vict. c. 71, s. 3. The jurisdiction of County Courts in Admiralty is conferred, in general terms, by certain sections contained in "The County Courts Admiralty Jurisdiction Act, 1868," and "The County Courts Admiralty Jurisdiction Act, 1869." The jurisdiction so conferred is now, it must be remembered, supplemented by sections 89 and 90 of "The Judicature Act, 1873." These must be carefully borne in mind on all occasions, but having been already set out in full in an earlier portion of this work (bb), need not be repeated here. It is, however, necessary that the sections of "The County Courts Admiralty Jurisdiction Act," from which County Courts derive their jurisdiction in Admiralty, should be set out in full. "The County Courts Admiralty Jurisdiction Act, 1868," enacts as follows: 66 Any County Court having Admiralty jurisdiction shall have "jurisdiction, and all powers and authorities relating thereto, (a) See post, cap. iv., p. 761, as to "Arrest of Foreign Vessels," and post, cap. vii., p. 796, as to "Salvage Claims under Merchant Shipping Acts." (b) Post, cap. viii., p. 813, as to "Dangerous Cargoes; " and see cap. ix. p. 817 et seq., as to "Courts of Survey." (bb) See ante, Book I. cap. íii. pp. 155, 156. "to try and determine, subject and according to the provisions "of this Act, the following causes (in this Act referred to "as Admiralty causes) :— "(1.) As to any claim for salvage-Any cause in which 66 "(3.) As to any claim for damage to cargo, or damage by "(4.) Any cause in respect of any such claim or claims as The Admiralty jurisdiction of the County Courts under Extension of "The County Courts Admiralty Jurisdiction Act, 1868," was Admiralty found to be not sufficiently extensive. Moreover, it could only of County jurisdiction be exercised by proceedings in personam. Accordingly, "The County Courts Admiralty Jurisdiction Amendment Act, 1869," was passed, which "shall be read and interpreted as one Act with the County Courts Admiralty Jurisdiction Act, 1868" (c). It enacts that : "Any County Court appointed or to be appointed to have "Admiralty jurisdiction shall have jurisdiction, and all powers "and authorities relating thereto, to try and determine the "following causes :— "(1.) As to any claim arising out of any agreement made "(2.) As to any cause in respect of any such claim or (c) Sect. 1, ante, p. 736. Courts by 1869." 32 & 33 Vict. c. 51, 8. 2. 32 & 33 Vict. c. 51, s. 4. General construction of above enactments. Act of 1868 only confers a concurrent jurisdiction with the Admiralty Court. But it is a moot point whether Act of 1869 does not confer an extended jurisdiction. "shall have jurisdiction."-32 & 33 Vict. c. 51, s. 2. "The third section of The County Courts Admiralty Juris"diction Act, 1868,' shall extend and apply to all claims for "damage to ships, whether by collision or otherwise, when the "amount claimed does not exceed three hundred pounds."32 & 33 Vict. c. 51, s. 4. There are one or two general observations to be made in reference to section 3, before dealing specifically with its subsections. In the first place, as regards the kind of jurisdiction which is conferred upon certain County Courts, "The County Courts Admiralty Jurisdiction Act, 1868," did not, it would seem, confer on the County Courts a new and original Admiralty jurisdiction, but merely a portion of that jurisdiction which was formerly enjoyed exclusively by the High Court of Admiralty (d). It is to be noticed that the language of "The County Courts Admiralty Jurisdiction Amendment Act, 1869," is much more general than that adopted by the framers of the prior Act. And there can be no doubt that this enactment does confer additional jurisdiction on the County Courts. There is, however, a serious conflict of authority as to the kind of jurisdiction intended to be conferred. On the one hand, the Privy Council (e), in a considered judgment, has held that the Act confers on the County Courts jurisdiction in cases where the High Court of Admiralty did not possess it. While, on the other hand, the Court of Common Pleas, on two occasions (ƒ), and also the Court of Exchequer (g), have held that the Act in question confers upon the County Courts merely a portion of the jurisdiction of the High Court of Admiralty According to the Privy Council, the construction which they adopt alone gives effect to the language of the Act, whereas the opposite construction leaves without operation the important branch of the enactment relating to agreements for the use and hire of ships, since the Court of Admiralty had no jurisdiction, either originally or by statute, over such damages. According to the Common Pleas and Exchequer, though the arguments of the Privy Council are very forcible, and the language of the Act is very general, yet the construction adopted by the Privy (d) Everard v. Kendal, L. R. 5 C. P. 428; S. C. 3 Mar. L. C. 391. See infra, as to the kind of jurisdiction now possessed by the County Courts by virtue of "The County Courts Admiralty Ĵurisdiction Amendment Act, 1869 (32 & 33 Vict. c. 51). (e) See Cargo ex Argos, L. R. 5 P. C. 134. See also The Swan, L. R. 3 A. & Eccl. 314. (f) Everard v. Kendal, L. R. 5 C. P. 428; 290. (g) Gunnestead v. Price, L. R. 10 Ex. 65. Simpson v. Blues, L. R. 7 C. P. Council would lead to serious anomalies, and is inconsistent with the evident scope and object of the Act. Moreover, according to the Court of Exchequer (h), it is incorrect to say that the Court of Admiralty had no jurisdiction over claims arising out of agreements for the use and hire of ships. As it is impossible to determine which construction of the Act will probably be adopted, and as the decisions just referred to are of equal force, and are not all on the same section of "The County Courts Admiralty Jurisdiction Act, 1869," it is necessary to state briefly the exact point decided by each case. In Everard v. Kendal (i), which was decided April 30th, Everard v. 1870, it was held by the Court of Common Pleas, that the Kendal. Admiralty jurisdiction of the County Courts in cases of collision is not more extensive than that of the High Court of Admiralty. And that, therefore, as the Court of Admiralty had no jurisdiction over a collision between two barges propelled by oars only, neither has the County Court any such jurisdiction. In The Swan (k), which was decided December 9th, 1870, it The Swan. was held, by Sir R. Phillimore, that the Court of Admiralty may transfer to itself from the County Court, and determine, causes which it has no original jurisdiction to try. This case presupposes that the County Court has jurisdiction over cases in which none was possessed by the Admiralty Court, and therefore is in accordance with the subsequent decision of the Privy Council. It is right to mention, however, that the attention of the Judge does not appear to have been called to the previous case of Everard v. Kendal (ubi supra). In Simpson v. Blues (1), which was decided May 7th, 1872, Simpson v. the Court of Common Pleas held, that "The County Courts Blues. Admiralty Jurisdiction Amendment Act, 1869," s. 2, does not give the County Courts Admiralty jurisdiction over a claim for breach of a charter-party, such claim being one over which the Court of Admiralty would have no jurisdiction, on the ground that the intention of the Act is not to give the County Court Admiralty jurisdiction in cases where the Court of Admiralty would not have had it, but only to give to a County Court a portion of the jurisdiction of the Court of Admiralty. In Cargo ex Argos (m), which was decided in February, Cargo ex 1873, it was held by the Privy Council that "The County Argos. Courts Admiralty Jurisdiction Act, 1869," s. 2, gives the County Court jurisdiction in cases of claim arising out of charterparties or other agreements for the use or hire of ships, although the Court of Admiralty may have no original juris (h) Per Bramwell, B., in Gunnestead v. Price, L. R. 10 Ex. 65, 75. (5) L. R. 5 C. P. 428. (4) L. R. 3 A. & E. 314. L. R. 7 C. P. 290. (m) L. R. 5 P. C. 134. VOL. IL 3 с |