VOL. XXI. EXCHEQUER COURT REPORTS. 395 BRITISH COLUMBIA ADMIRALTY DISTRICT 1921 December 14. In re: MARTIN PLAINTIFF; vs. THE SEA FOAM DEFENDANT. Shipping--Jurisdiction—Repairs---"Under arrest"—Sec. 18 Admiralty Court Act, 1861, c. 10. The ship defendant was seized by the mortgagee when it was being repaired in plaintiff's yard. No proceedings of any kind had been instituted in the court when plaintiff took his present action. Held: That the ship defendant was not "under arrest" within the meaning of sec. 13 of the Admiralty Court Act, 1861, c. 10, at the time plaintiff issued his writ herein and that the Court had no jurisdiction to entertain his action. 2. That the pursuance of a private remedy is not at all analogous to the taking of public proceedings in Court. Action by plaintiff to recover for repairs done to the defendant ship and claiming a lien therefor. The ship was under repairs by plaintiff when Balfour, Guthrie & Co. seized it under mortgage. It was sold by Balfour, Guthrie & Co. to one Cole. The defence claimed that the Court was without jurisdiction and that no lien attached. December 14th, 1921. Case heard before the Honourable Mr. Justice Martin at Vancouver.
396 EXCHEQUER COURT REPORTS. VOL. XXI. Hume B. Robinson and J. A. W. O'Neil for plaintiff ; MARTIN THE D. N. Hossie for defendant. SEA FOAM. Bessons for Judgment. The facts are stated in the reasons for judgment. Martin,L_J.A. MARTIN L. J. A. now (this 14th December, 1921) delivered judgment. It is clear to me after examining the authorities cited this morning and in the light of those cited yesterday that this Court has no jurisdiction to entertain this action, because the vessel was not "under arrrest" within the meaning of sec. 13 of The Admiralty Court Act, 1861, ch. 10, at the time the writ was issued herein. The cases of The Northumbria (1) and The Norm-andy (2) which Mr. Robinson has drawn to my attention are instructive, and if I must say so, the latter goes further than I am inclined to think it should have gone. It is an expansion of the principle _laid down in The Northumbria to this extent, that sections 13 and 34 must be construed together, and so construed they show the purpose of the Legislature to have been to give jurisdiction to this Court whenever it was substantially seized of a suit against the vessel; and the learned Judge of the Admiralty Court goes on to explain his decision in The Northumbria by saying that : There a caveat warrant having been issued, and the arrest of the vessel prevented, and bail having been given by the owners in pursuance of their undertaking, I held that, for the purposes of the present section, there was a constructive arrest, (1) [1869] L.R. 3 A. & E. 24; (2) [1870] L.R. 3 A. & E. 152; 39, L.J. Adm. 24 & 18 W. Rep. 356. 39, L. J. Adm. 48; 18 W. Rep. 903.
VoL. XXI. EXCHEQUER COURT REPORTS. and he proceeds to say that he is prepared though not till "after I confess, much hesitation, to take the step further," that he did take subject to a condition which he imposed. In The observed that: "Looking to the whole scope and tenor of the Act, this Court was • intended to have jurisdiction in suits of this description; when it is in possession of the bail which represents the "Res", whether the "Res" has been released on the giving of bail after the arrest, or whether the arrest has been prevented, as in this instance, by such a caveat as has been issued in this case." But all that has been done in the case at bar is that the vessel was seized' by the mortgagee when it was being repaired in the plaintiff's yard and no proceedings of any kind have been instituted in this Court, and so I do not feel prepared to take still another step further and hold that the 'pursuance of a private remedy is at all analogous to the taking of public proceedings in this Court, and hence there is no jurisdiction to entertain this action in this Court and it must be dismissed. 307 vt MARTIN THE SEA l' oADi. Northumbria case he had Seas Ju o d n g s m f e o nt r . Martin,L.J.A. --- Judgment accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.