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"or of such Superior Court or of a County Court having Ad"miralty jurisdiction, and shall not recover a sum exceeding "the amount to which the jurisdiction of the County Court in "that Admiralty cause is limited by this Act, and also if any person without agreement shall, except by order as aforesaid, "take proceedings as to salvage in the High Court of Admiralty "or in any Superior Court in respect of property saved, the value of which when saved does not exceed one thousand "pounds, he shall not be entitled to costs, and shall be liable "to be condemned in costs, unless the Judge of the High Court " of Admiralty or of a Superior Court before whom the cause "is tried or heard shall certify that it was a proper Admiralty "cause to be tried in the High Court of Admiralty of England "or in a Superior Court."-31 & 32 Vict. c. 71, s. 9.

It is to be noticed, in the first place, that the above section Construction of does not apply where proceedings have been taken in the High above enactCourt" by order of the Judge of the High Court of Admiralty ment. or of such Superior Court or of a County Court having Admiralty jurisdiction." In regard to this provision it has been held that the High Court (P. A. & D. Division) has power, under it, to grant an order for instituting proceedings before it, which might have been taken without agreement in the County Court (r). But it has no power to make this order after proceedings have already been instituted in the High Court (y).

So where there are circumstances rendering it advisable that an action which a County Court has jurisdiction to try should be commenced in the High Court, such as the necessity of a commission abroad, the Court will grant leave for a writ to issue in the High Court, though the cause of action may be of less amount than the limit of the County Court jurisdiction (z). Notice of the order made by the Court should be served with the writ (a).

In the next place it is to be observed that this section provides that, under certain conditions, a person shall not only not be entitled to costs, but shall be condemned therein, unless the Judge of the High Court, before whom the case is tried, shall certify that it was a proper Admiralty cause to be tried in the High Court. This power of certifying will be exercised by the Judge of the Admiralty Divisional Court when it is made clear to him that it was less expensive to try in London than in the County Court (b).

Let us now, in the third place, examine the conditions in

(2) The Bengal, L. R. 3 A. & E. 14. See also The Beaumaris Castle, 40 L. J. N. S. (Ad.) 41.

(y) The Loretta, 40 L. J. N. S. (Ad.) 41.

(3) Ellis v. General Steam Navigation Co., 38 L. T. 570.

(a) Ib.

(b) The Beaumaris Castle, 40 L. J. N. S. (a) 41.

regard to costs imposed by the above section. Such conditions are two in number. The first relates to all claims (including salvage claims), and the second to salvage claims only.

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The first condition is as follows:-A person is not entitled to costs, but liable to be condemned therein, under section 9, if "he shall not recover a sum exceeding the amount to which the jurisdiction of the County Court in the Admiralty cause is "limited by this Act." One general test of liability to costs under this section is, then, the sum recovered, not the sum claimed. Therefore, where a plaintiff in an Admiralty suit, whose bona fide claim was less than £300, though the demand in his declaration was over that sum, sued in a Superior Court, and the defendant paid money into Court under £300, which the plaintiff took out in full satisfaction, it was held that the plaintiff was not entitled to his costs (c). For money so paid into Court and taken out is money "recovered" (d). But, where a cause of damage was instituted in the Superior Court, the damage done being over £300, but the owner's liability was subsequently limited below that amount, it was held that the plaintiff was entitled to costs in the Superior Court (e).

The second condition as to costs imposed by section 9, is briefly as follows, and, as already stated, applies only to salvage cases-If any person take proceedings as to salvage in the High Court in respect of property saved, the value of which when saved does not exceed £1,000, he shall not be entitled to costs, but shall be condemned in costs, unless, &c., &c.

The effect of this provision as to salvage claims, is somewhat peculiar, as will now be explained. It has been seen (ƒ) that the limit of the jurisdiction of the County Courts in salvage claims is in the alternative, i. e. either the property saved must not exceed £1,000, or the amount claimed must not exceed £300. Therefore, if a plaintiff claims and recovers more than £300 in respect of salvage, but the value of the property saved does not exceed £1,000, he is not entitled to costs, but may be condemned therein under section 9. And, on the other hand, the same result will follow if the plaintiff recover less than £300, though the value of the property saved exceed £1,000. So that it follows that a plaintiff will be entitled to his costs in salvage cases only where two elements combine, i. e., (1.) where he recovers more than £300, and (2.) where the value of the property saved exceeds £1,000.

It is presumed that section 9 of the Act is equally applicable to cases in which the County Courts possess jurisdiction in Admiralty causes under the Merchant Shipping Acts (g). This should be borne in mind by intending suitors.

(c) Hewitt v. Corey, 3 Mar. L. Cas. 425; S. C. L. R. 5 Q. B. 418.
(d) Ib.

(e) The Young James, L. R. 3 Ad. & Eccl. 1.

(f) Ante, p. 755.

(g) See The Glannibanta, 2 P. D. 45; 25 W. R. 513.

BOOK IV.

JURISDICTION AND PROCEEDINGS IN ADMIRALTY
AND PROBATE MATTERS.

CHAPTER IV.

ARRESTS OF FOREIGN VESSELS.

Public policy requires that which have foreign ships damaged British property should

IT sometimes happens that a foreign vessel does injury to British property, but that circumstances prevent redress being at the time obtained for the damage done. Should a foreign vessel, which has thus committed an unredressed injury to British property, subsequently be found within British waters, it is, in the interests of home navigation, desirable that there should be a power to prevent such a vessel leaving again without having first made compensation for the injury inflicted by British her. "The Merchant Shipping Act, 1854," accordingly con- waters. fers a power of this description (a) upon the Judges of all Courts of Record.

The provisions of "The Merchant Shipping Act, 1854,” on this subject, are in the following terms :

"Whenever any injury has, in any part of the world, been "caused to any property belonging to Her Majesty, or to any "of Her Majesty's subjects, by any foreign ship, if, at any "time thereafter, such ship is found in any port or river of the "United Kingdom, or within three miles of the coast thereof, "it shall be lawful for the Judge of any Court of Record in "the United Kingdom, or for the Judge of the High Court of "Admiralty, or in Scotland the Court of Session, or the sheriff "of the county within whose jurisdiction such ship may be, "upon its being shown to him by any person applying sum"marily that such injury was probably caused by misconduct or want of skill of the master or mariners of such ship, to "issue an order directed to any officer of customs or other "officer named by such Judge, requiring him to detain such "ship until such time as the owner, master, or consignee "thereof has made satisfaction in respect of such injury, or

(a) This power of arrest of foreign vessels before action comferred by the Merchant Shipping Act, must not be confounded with the general jurisdiction of County Courts in Admiralty after action brought to arrest and detain a vessel ndente lite.

be detained if found in

Power of

Judge of

Court of Record or Admiralty to arrest foreign ship that has

occasioned damage.

The Merchant Shipping Act, 1854, s. 527.

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 (f), 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 Jurisdiction 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.
(L. R. 5 C. P. 428.

() L. R. 3 A. & E. 314.

(L. R. 7 C. P. 290.

(m) L. R. 5 P. C. 134.

VOL. II.

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