Gunnestead v. Price. Jurisdiction of Admiralty Court not taken away by County Courts Acts. County Courts Acts confer And confer extending to six classes of cases. diction in such cases. In this case the decision of the Court of Common Pleas in Simpson v. Blues (ubi supra), was expressly disapproved of. In Gunnestead v. Price (n), which was decided February 12th, 1875, it was held, by the Court of Exchequer, that a claim for demurrage is not within "The County Courts Admiralty Jurisdiction Act, 1869," s. 2, which gives jurisdiction to County Courts, only to try and determine causes which are within the jurisdiction of the Admiralty Court. In this case, Simpson v. Blues (0), was expressly approved of, and Cargo ex Argos (p), expressly dissented from. The jurisdiction of the High Court (Admiralty Division) is not, however, impaired by the County Courts Admiralty Jurisdiction Acts (q). Such jurisdiction of the High Court where it before existed still exists over the claims in respect of which the County Courts also possess jurisdiction by virtue of "The County Courts Admiralty Jurisdiction Act, 1868" (r). The jurisdiction of the County Courts under the Act is, therefore, concurrent merely and not exclusive. But, as will hereafter be seen, under the Merchant Shipping Acts, the Admiralty Court had no concurrent jurisdiction with the County Courts in cases of salvage (8). In the next place, it is to be noticed that the jurisdiction conferred by section 3 is limited in amount as well as in kind. Sometimes it is seen that the amount claimed or the value of the property saved must not exceed a certain pecuniary limit. While again, in other instances, the amount claimed is necessarily made the sole pecuniary test whereby to determine whether the County Court possesses jurisdiction. It is important, therefore, to point out that the expression "claim occurring in "The County Courts Admiralty Jurisdiction Act, 1868," does not mean "demand" but a bona fide claim (†). The jurisdiction conferred by the enactments of "The a jurisdiction County Courts Admiralty Jurisdiction Act, 1868," and "The County Courts Admiralty Jurisdiction (Amendment) Act, 1869," extends, it may be noted, to six classes of cases which may by way of summary be thus stated :-(1.) Any claim for salvage where value of property saved does not exceed £1,000, or amount claimed does not exceed £300 (u); (2.) any claim for towage, necessaries, or wages, in which amount claimed does not exceed £150 (u); (3.) any claim for damage to cargo, or damage by collision in which amount claimed does not exceed £300 (u); (4.) claims for damage to ships, whether by (n) L. R. 10 Ex. 65. (o) L. R. 7 C. P. 290. p) L. R. 5 P. C. 134. (q) The Herman Wedel, 3 Mar. Law Rep. 530; and see The Swan, L. R. 3 A. & E. 314; The Empress, L. R. 3 Ad. & E. 502. (r) Ante, p. 752. (s) The William and John, 22 L. J. N. S. Adm. 102, post, p. 800. (t) Hewitt v. Corey, 3 Mar. L. C. 425; L. R. 5 Q. B. 418. (u) 31 & 32 Vict. c. 71, s. 3, ante, p. 751. collision or otherwise, when amount claimed does not exceed £300 (r); (5.) any claim arising out of any agreement made in relation to the use or hire of any ship, or in relation to the carriage of goods in any ship, and also as to any claim in tort in respect of goods carried in any ship provided the amount claimed does not exceed £300 (y); (6.) any cause in respect of any of the above-mentioned claim or claims, in which the value of the property saved or the amount claimed is beyond the amount limited as aforesaid, and the parties agree in writing to give jurisdiction to the Court (z). We will now proceed to consider each of these six classes or cases separately. (1.) As to claims for salvage. It is to be noticed that the jurisdiction conferred by subsection 1 of section 3 of the Act of 1868 differs materially from that previously possessed by the County Courts in salvage cases under "The Merchant Shipping Acts" (a). In the first place, the present subsection gives jurisdiction to determine " any claim for salvage," whereas "The Merchant Shipping Acts conferred jurisdiction only in cases of salvage in respect of certain specified services. And, in the second place, while, on the one hand, the subsection gives jurisdiction, as aforesaid, whenever the value of the property saved does not exceed £1,000, or the amount claimed does not exceed £300, on the other hand, "The Merchant Shipping Acts" limit the jurisdiction, in the specified instances of salvage, to cases where the sum claimed does not exceed £200, or where the value of the property saved does not exceed £1,000 (b). It is also to be noticed that the pecuniary limit imposed by the subsection under consideration is in the alternative, that is to say, either the property saved must not exceed £1,000, or the amount claimed must not exceed £300 (c). Accordingly, it has been held, that a County Court has jurisdiction to entertain a suit for distribution of salvage where the amount which the Court is asked to apportion does not exceed £300, though the value of the property saved does exceed £1000, and though there has been no original suit for salvage, but the sum claimed has been ascertained to be due without the necessity of litigation (d). (1.) Claims for salvage. (2.) Claims for towage, (2.) As to claims for towage, necessaries, or wages. This jurisdiction is quite new, and can only be exercised by County Courts appointed to have Admiralty jurisdiction. The necessaries, (z) 32 & 33 Vict. e. 51, s. 4, ante, p. 752. (y) 32 & 33 Vict. c. 51, s. 2, subsect. (1), ante, p. 751. (2) 31 & 32 Vict. c. 71, s. 3, subsect. (4), ante, p. 751; and 32 & 33 Vict. c. 51, s. 2, subsect. (2), ante, p. 751. (a) As to this see post, cap. vii., p. 796 et seq. See post, p. 797 et seq. See also post, sect. 9, at pp. 578-759. (d) The Glannibanta, L. R. 2 P. D. 45; 25 W. R. 513. or wages. (3.) Claims for damage to cargo, or damage by collision. amount claimed must not exceed £150. As regards the nature of the claims comprised by this subsection, it has been held that the jurisdiction of the County Court to try and determine any claim for necessaries under it, must be confined to any claim for necessaries "triable by a Court having Admiralty jurisdiction" (e). And it has also been held that the words "any claim for . . . . wages" in this subsection include a claim for damages for wrongful dismissal by the master of a vessel engaged under a special wages agreement (f). They do not, however, give jurisdiction to County Courts to entertain a claim for a master's disbursements (g). (3.) As to any claim for damage to cargo, or damage by collision. This subsection deals only with two very large classes of claims, namely, for damage to cargo or damage by collision. It does not include claims for damage to vessels otherwise than by collision. But it has been seen that the County Courts now possess jurisdiction in such cases also (h). It has been held, however, that the 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, it cannot entertain a case of collision between two barges propelled by oars only (i). In dealing with cases of damage by collision, it must not be forgotten that, as already stated (k), "The Judicature Act, 1873" (36 & 37 Vict. c. 66) (1), provides by section 25, subsection (9), that: "In any cause or proceeding for damages "arising out of a collision between two ships, if both ships "shall be found to have been in fault, the rules hitherto in force "in the Court of Admiralty, so far as they have been at variance "with the rules in force in the Courts of Common Law, shall "prevail." The rule of the Admiralty Court, which is now to prevail in cases of collision, in accordance with this enactment, differs materially from that which was adopted by Courts of Common Law. For at Common Law the plaintiff can recover nothing unless he shows that he was free from all blame (m). Whereas, according to the Court of Admiralty, when two vessels are to blame for a collision, the damage arising therefrom is to be divided between their owners (n). Thus if two vessels run into each other and both go to the bottom, the Court of Admiralty (e) The Dowse, 3 Mar. L. C. 424; S. C. L. R. 3 Ad. & Eccl. 135. (h) 32 & 33 Vict. c. 51, s. 4, ante, p. 752. (k) Ante, p. 155. (Extended to County Courts, by sect. 89 of" The Judicature Act, 1873; "see ante, p. 155. (m) See The Milan Lush, 388. (n) The Linda, 4 Jur. N. S. 146. has been in the habit of adding the value of both ships, and of then dividing the total between the two parties. This rule, it has been pointed out (0), works substantial justice, and does not really impose a greater burden upon one of two persons, who, being equally to blame for a collision, ought to suffer equally. Section 4 of "The County Courts Admiralty Jurisdiction (4.) Damage to Amendment Act, 1869," provides that section 3 of the pre- ship whether vious Act, shall extend and apply to all claims for damage caused by to ships, whether by collision or otherwise, when the amount claimed does not exceed £300. This is an important extension of jurisdiction. For, previously, if a ship was damaged, otherwise than by collision, the County Court had no jurisdiction. And it is obvious that damage may be occasioned to a ship in many other ways besides collision." (5.) As to any claim made out of any agreement made (1), in relation to the use or hire of any ship; (2), or in relation to the carriage of goods in any ship; and (3), as to any claim in tort in respect of goods carried in any ship. The sub-section conferring this jurisdiction deals, it is to be observed, with three kinds of claim. Those which are marked for convenience (1) and (2) are founded on breach of contract, while the one marked (3) is in tort. No claim, however, whether it be in contract or tort, must exceed £300. collision or otherwise. (5.) Claims made out of any agreement made in relation to the use or hire of any ship, the carriage of any goods, and in tort in respect of goods car As we have already seen, when dealing with the question ried in any what kind of jurisdiction the County Courts possess under ship. "The County Courts Admiralty Jurisdiction Amendment Act, 1869," there is some conflict of authority as to what claims are comprised by the present sub-section. Thus, while in one case (p) it was held, by the Court of Common Pleas, that the sub-section gives no jurisdiction to a County Court over claims for breach of a charter-party, on the other hand, in a more recent case (q), it was decided by the Privy Council that the County Court has jurisdiction in cases of claim arising out of charter-parties or other agreements for the use or hire of ships, although the Court of Admiralty may have no original jurisdiction in such cases. (6.) Claims similar in kind to but exceeding in amount those mentioned in the Act. (6.) Claims similar in kind to, but exceeding in amount those Subsection of section 2 of "The County Courts Admiralty Jurisdiction Amendment Act, 1869," is substantially the same as subsection (4) of section 3 of "The County Courts Admiralty enumerated. Jurisdiction Act, 1868" (r), and enables the parties themselves to give jurisdiction to the County Courts by agreement in (0) By Mr. Rothery (Wreck Commissioner), in a letter addressed by him to Lord Selborne, and set out in "Maclachlan's Treatise on the Law of Merchant Shipping" (2nd ed.) p. 287, note (2). (P) Simpson v. Blues, L. R. 7 C. P. 290; ante, p. 753. Form of agreement to confer jurisdiction. Causes and matters excluded from jurisdiction of County Courts by "The County Courts Admiralty Jurisdiction Act, 1868." 31 & 32 Vict. c. 71, 8. 4. How recourse to County Courts appointed to have Admiralty jurisdiction is secured. 31 & 32 Vict. c. 71, 8. 9. writing in cases where the limit of £300 is exceeded, but where the claims are of the kind mentioned in the preceding subsection. It is to be noticed that these subsections do not enable suitors to give the County Court jurisdiction in every class of Admiralty causes; but only in respect of the claim or claims specified by the preceding subsections," in which the value of the property saved or the amount claimed is beyond the amount "limited as above mentioned” (8). 66 As to the form of the agreement conferring jurisdiction upon the County Courts, it is to be noticed, that it must be in writing, and signed by the parties or by their attorneys or agents. Moreover, the memorandum must specify the County Court which is to have jurisdiction, and such Court must be a County Court appointed to have Admiralty jurisdiction. No form of consent specially applicable to Admiralty proceedings is provided, but one can easily be framed by adopting that provided for use in common law actions (f). It has been seen how section 3 of "The County Courts Admiralty Jurisdiction Act, 1868," confers jurisdiction in certain Admiralty causes upon the County Courts. And it is now necessary to indicate certain matters which by the Act are expressly excluded from the jurisdiction of the County Courts. These are contained in the following section of the said Act: 66 "Nothing in this Act, or in any Order in Council under it, "shall confer on a County Court jurisdiction in any prize cause, or in any other matter within The Naval Prize Act, "1864,' or in any matter arising under any of the Acts for the suppression of the slave trade, or any Admiralty jurisdiction "by way of appeal " (u)—31 & 32 Vict. c. 71, s. 4. 66 Having now ascertained the nature and extent of the original jurisdiction possessed by County Courts appointed to have Admiralty jurisdiction, it remains to consider how recourse to the County Courts, instead of to the High Court, is secured in those cases in which both possess jurisdiction. In order to prevent recourse to the High Court, in cases cognizable by the County Courts, "The County Courts Admiralty Jurisdiction Act, 1868," enacts that : "If any person shall take in the High Court of Admiralty "of England or in any Superior Court proceedings which he might, without agreement, have taken in a County Court, except by order of the Judge of the High Court of Admiralty 66 66 (8) Ante, p. 751. Appendix II. Form 45, substituting a reference to the County Courts Admiralty Jurisdiction Acts for that contained in the Form. (u) As regards that part of this section which provides that a County Court shall not have "any Admiralty jurisdiction by way of appeal," it will hereafter be seen that by virtue of "The Merchant Shipping Act, 1876," a limited appellate jurisdiction is now enjoyed by County Courts. |