CASES DETERMINED BY 1HE EXCHEQUER COURT OF CANADA AT FIRST INSTANCE AND IN THE EXERCISE OF ITS APPELLATE JURISDICTION ON APPEAL FROM THE BRITISH COLUMBIA ADMIRALTY DISTRICT 1926 Sept. 10. THE SS. WORON (DEFENDANT) APPELLANT; Nov. 10. AND CANADIAN AMERICAN SHIPPING RESPONDENT. CO., LTD. (P LAINTIFF } Shipping—Admiralty Courts—Jurisdiction--Action in rem—Breach of charter-party--Colonial Courts of Admiralty Act, 1890 (58-54 Vict., c. 27 Imp.) and Admiralty Act, 1891, (54-55 Vict., c. 29, Can.)—Interpretation. This was an action in rem against the SS. Woron for breach of charter-party. Upon motion to set aside the writ and warrant of arrest for want of jurisdiction, it was conceded that if the jurisdiction of this court was limited by the Colonial Courts of Admiralty Act of 1890 and the Admiralty Act of 1. 891, this ,court had no jurisdiction in rem in the premises. Held, (reversing the judgment appealed from), that it is the policy of the law that jurisdiction cannot be extended except by clear and unambiguous legislation, and as the Act of 1925 (15-16 Geo. V, ch. 49 Imp.) was not made applicable to Canada, either by express words or by necessary intendment, the Admiralty jurisdiction thereby conferred on the High Court of Justice (England) did not extend to Canada, and that this court had no jurisdiction to entertain this action.. 2. The word " existing " in subsection 2 of section 2 of the Colonial Courts of Admiralty Act, 1890, controlled as it is by the words " subject to the provisions of this Act" in subsection 3 of section 2, and the words " under this Act " and " by this Act " in section 3 and the proviso thereto, must be taken to relate to the Jurisdiction existing at the date of the Act, and that only; and that the plain reading of this Act ties the jurisdiction of the Canadian Admiralty Court to that of the English High Court as it existed at the time of the passing of the said Act, and no more. 35789-1A
2 EXCHEQUER COURT OF CANADA [19271 1926 3. Held further that the Parliament of Canada has only a limited power of legislation in respect of admiralty jurisdiction. It cannot confer THE SS. upon the Exchequer Court any jurisdiction which was not conferred WO V rO . n' by the Colonial Courts of Admiralty Act, 1890, upon a Colonial Court CANADIAN of Admiralty. AMERICAN SHIPPING ACTION in rem by the charterers of the defendant ship, Co., LTD. to recover damages alleged to be due to a breach of the charter-party. The case came before the court upon a motion of the defendant, to set aside the writ and warrant of arrest issued therein, on the ground that the court had no jurisdiction to entertain such an action. On the 6th July, 1926, judgment was rendered on the motion, by the Honourable Mr. Justice Martin, Local Judge in Admiralty for the British Columbia Admiralty District, dismissing the motion (1). An appeal was taken from this judgment to the Exchequer Court of Canada, which was heard before the Honourable Mr. Justice Audette, at Vancouver. Alfred Bull for appellant. W. M. Griffin and S. Smith for respondent. The facts and points of law involved are stated in the reasons for judgment. AuDETTE J., now this 10th of November, 1926, delivered judgment (2). This is an appeal from the judgment of the Local Judge of the British Columbia Admiralty District, pronounced on the 6th day of July, 1926, dismissing the application to set aside the writ and warrant of arrest issued herein, on the ground of want of jurisdiction. The judgment appealed from rests entirely upon section 5 of the Imperial Act, 1920, (10-11 Geo. V, ch. 81), which however was repealed by the Act of 1925 (15-16 Geo. V, ch. 49), as appears by the 6th Schedule thereof—a matter which seems to have escaped the attention of the learned Judge of first instance who dismissed the motion. Therefore it becomes unnecessary to consider the effect of the Act of 1920 upon the question before the court, beyond stating its repeal, and the attention of the court will be (1) See page 12 for text. (2) An appeal has been taken to the Judicial Committee of the Privy Council.
Ex. C.R. EXCHEQUER COURT OF CANADA 3 directed solely as to the effect of the Act of 1925 (which 1926 came into force on the 1st January, 1926), upon the pro-THE 88. ceedings herein instituted on the 30th April, 1926. How-Woron. V. ever, it is well to add that some of the reasons given for CANADIAN supporting the jurisdiction below upon the act of 1920, AMERICAN SHIPPING would equally apply to the act of 1925. Co., TIED. It may be stated, as was indeed conceded by all parties, Audette J that if the jurisdiction of this court is limited by the Colonial Courts of Admiralty Act, 1890, (53-54 Vict., ch. 27 Imp.) and the Admiralty Act, 1891, (54-55 Vict., ch. 29 Can.), and to the time at which these acts were passed, this court has no jurisdiction to entertain an action in rem in the premises and consequently 'the writ and warrant issued herein must be set aside. Furthermore in order to give this court jurisdiction to entertain the same, it must be found that the Imperial Act passed in 1925 (15-16 Geo. V, ch. 49, sec. 22, subset. XII) is in force in Canada. In other words the present controversy is narrowed down to the question as to whether or not this court is vested with any jurisdiction given to the High Court in England by Imperial Statutes passed since 1890, although these statutes do not expressly apply to Canada. This case is one wherein it is sought to proceed in rem against the ship for breach of a charter-party—a matter which is not cognizable in this court under the Act of 1890, nor any subsequent legislation, unless it is found that the Imperial Act of 1925 is in force in Canada ex proprio vigore and without express words. From very early times in England the question of jurisdiction between the Court of Admiralty and the Courts of Common Law has been fought, with more or less vehemence. Prohibitions issuing out of the Common Law tribunals upon proceedings in the Admiralty were frequent. Godolphin in his age observed that the quarrel had assumed such complexity between the courts that betwixt land and water, between contracts made beyond the sea and obligations made at sea, the Admiralty was like a kind of derelict. Hence in dealing with a question of admiralty jurisdiction to-day one must exercise great care in determining it to be well-founded. See Herschel! L.C., in Mersey Docks do Harbour Board v. Turner, The Zeta (1). (1) (1893) A.C. 468 at pp. 481 and 482. 32789-14
EXCHEQUER COURT OF CANADA [1927] 1926 Let us now refer to the Colonial Courts of Admiralty THE SS. Act, 1890, which defines the jurisdiction of any Colonial Woron. Court of Admiralty when created by a Colonial Legis-V. CANADIAN lature under the authority of its provisions. Subsection AMERICAN SHIPPING (2) of section 2 reads as follows: CO., LTD. (2) The jurisdiction of a Colonial Court of Admiralty shall, subject Audette J. to the provisions of this Act, be over the like places, persons, matters and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that court to international law and the comity of nations. By the Canadian Admiralty Act, 1891, (sec. 3) the Exchequer Court of Canada, was created within Canada, a Colonial Court of Admiralty, and as a Court of Admiralty shall, within Canada, have and exercise all the jurisdiction, powers and authority conferred by the said Act and by this Act. It must not be overlooked that the jurisdiction given to the Exchequer Court under sec. 4 of this Act was confined to rights and remedies in all matters which may be had or enforced in any Colonial Court of Admiralty under the Colonial Courts of Admiralty Act, 1890. Under the law as it stood in England when the Colonial Courts of Admiralty Act was passed there was no jurisdiction to entertain the present action in rem. Furthermore the latter Act makes it plain that it confers jurisdiction existing whether by virtue of any statute or otherwise. This word " existing " must, I think, be taken to relate to jurisdiction existing at the date of the Act, and that only. Again by subsection (3) of section 2, of the Colonial Courts of Admiralty Act this jurisdiction is expressly given subject to the provisions of this Act. Passing to sec. 3 of the same Act, it is there again provided that the jurisdiction contemplated is the jurisdiction " under this act." The proviso to that section also expressly states that any such Colonial Law shall not confer any jurisdiction which is not by this Act conferred upon a Colonial Court of Admiralty. Section 4 of the last mentioned Act only enables a Colonial Legislature to pass laws affecting the jurisdiction or practice of a Colonial Court of Admiralty with the approval of His Majesty, and as we have seen above, under the pro-
Ex. C.R. EXCHEQUER COURT OF CANADA 5 visions of section 3 no such Colonial law could confer any 1926 jurisdiction which is not by this Act conferred upon a Col-THE SS. onial Court of Admiralty. Woron. v. When we are confronted by such provisions as those con-CANADIAN tained in the last-mentioned sections of the Colonial Courts AMERICAN SHIPPING of Admiralty Act, we realize that the Parliament of Canada CO., LTD. has only a limited power of legislation in respect of Admir-Audette J. alty jurisdiction. It cannot confer upon the Exchequer Court any jurisdiction which was not conferred by the Imperial Act of 1890 upon a Colonial Court of Admiralty. Clearly the situation is that the legislative authority of Canada over the subject of Admiralty jurisdiction stops short of autonomy. Not only is there a restricted field of legislation, but legislation within that restricted field cannot become effective until His Majesty's pleasure thereon has been publicly signified in this country. That is the situation briefly stated, and it must remain so until the Parliament of Great Britain sees fit to displace it by further legislation. In view of this situation it is but natural that some way out of the difficulties that surround it should be sought. The learned judge below has found a way out by interpreting the provisions of section 5 of the Imperial Statute of 1920 (repealed in 1925 as I have before stated) as applying to Canada; but the Act was repealed before the institution of this action and no more need be said about it. Theonly Act from which the respondent can get any relief is the Imperial Act of 1925 which is intituled An Act to consolidate the Judicature Acts 1873 to 1910, and other enactments relating to the Supreme Court of Judicature in England and the administration of Justice therein. The primary territorial scope of this Act obviously does not include this Dominion, and the Act is absolutely silent with respect to its application to the Dominions or the Colonies. The case of Gauthier V. The King (1) discusses a question somewhat similar to the one raised by the judgment below, namely, as to whether the Colonial Courts of Admiralty Act, 1890, is to be taken by construction as speaking always in the present tense (sec. 10 Interpretation Act) (1) [1918] 56 S.C.R. 176.
6 EXCHEQUER COURT OF CANADA [1927] 1926 so that it would impliedly confer upon the Exchequer THE Court of Canada whatever jurisdiction was given to the Woron. High Court of Justice in Admiralty since the year 1890. CANADIAN It is true that the Gauthier case dealt with the jurisdic- • S ~ r n o t on clauses of the Exchequer Court Act and not with those Co., LTD. of the Admiralty Act; but the rules of construction are Audette J. the same in all cases and where there is an authoritative -- interpretation of a contemporary Act to be found it affords great assistance. In the Gauthier case the Supreme Court was concerned with the question of whether the provincial laws invoked by the Exchequer Court Act as part of the law of the court are to be confined to the provincial laws in force in the year 1887, when the Exchequer Court Act was passed, or whether section' 20 of the Exchequer Court Act contemplates that amendments to the provincial laws as they come into force from time to time have to be administered in the Exchequer Court. It is abundantly clear from the reasons for judgment 'of the judges of the Supreme Court that the liability of the Crown under the Exchequer Court Act must be determined by the general laws of each province in force at the time when the Exchequer Court Act was originally passed, namely, 1887. (See per Fitzpatrick C.J., pages 180 and 182; per Anglin J., page 194). At page 182 cited, the Chief Justice puts the matter in a nutshell when hesays: Provincial statutes which were in existence at the time when the Dominion accepted a liability form part of the law of the province by reference to which the Dominion has consented that such liability shall be ascertained and regulated; but any statutory modification of such law can only be enacted by Parliament in order to bind the Dominion Government. In the Gauthier case the Supreme Court of Canada followed the decisions in the well known cases of Armstrong v. The King (1) ; The King v. Desrosiers (2) ; Filion v. The Queen (3) ; City of Quebec v. The Queen (4) ; Ryder v. The Queen (5) ; The Ship Whitney and St. Clair Nay. Co. et al (6). So far as the Exchequer Court on its Admiralty side is concerned the learned judge who heard the motion in the (1) [1908] 40 S.C.R. 229 at 248. (4) [1894] 24 S.C.R. 420. (2) [1908] 41 S.C.R. 71 at p. 78. (5) [1905] 36 S.C.R. 462. (3) [1894] 24 S.C.R. 482. (6) [1906] 38 S.C.R. 303 at 320.
Ex. C.R. EXCHEQUER COURT OF CANADA 7 British Columbia Admiralty Court very truly says: " There 1926 is no decision upon the exact point." Here we have to Tg, deal with an alléged breach of charter-party. And he re- Woron. fers to the Harris Abattoir Co., Ltd. v. The SS. Aledo (1), CArrADv.m wherein the late Mr. Justice Maclennan decided that an A$cIxa action in rem for damages to goods carried or to be carried Co., LTn• out of a Canadian port to a foreign country could not be Audette J. entertained for lack of jurisdiction under sec. 6 'of the -Admiralty Act, 1861, and' the judgment appealed from here says that the statute of 1920 (which is now repealed by that of 1925), which repealed this section 6 of 1861 escaped the attention of the court and counsel in the Aledo case. Mr. Justice Maclennan may or may not have overlooked the Act of 1920. He may have considered it and come to the conclusion that by sec. 21 thereof, sec. 5 relied upon applied " only " to England and Wales and thereby excluded Canadian territory. Or he may have considered that the words " England and Wales " mentioned in proviso (a) of sec. 2 had reference only to Acts passed before 1890, a view which would seem consistent with subsec. 2 of sec. 2. Hence his silence upon the point. In re wolfe et al v. SS. Clearpool (2), Mr. Justice Mac-lennan held, in 1920, that The Exchequer Court derives its Admiralty jurisdiction from two statutes, the Colonial Courts of Admiralty Act, 1890, (53-54 Vict., c. 27, Imperial), and the Admiralty Act, 1891, (54-55 Vict., ,ch. 29, Canada). From these statutes it is clear that the jurisdiction of the Exchequer Court, as a Court of Admiralty, is no greater than the Admiralty jurisdiction of the High Court in England. The expression " Admiralty jurisdiction of the High Court" does not include any jurisdiction which could not have been exercised by the Admiralty Court before its incorporation into the High Court, or may be conferred by statute giving new Admiralty jurisdiction, citing Bow McLachlan & Co. v. Camosun (3). Adverting to the Camosun case it will be seen that in that case the Judicial Committee held that the jurisdiction of the Exchequer Court in Canada, ss a Court of Admiralty constituted under the Colonial Courts of Admiralty Act, 1890, (Imperial) and the Admiralty Act, 1891 (Dom.), is no greater than the Admiralty jurisdiction of the High Court in England," and that " The Judicature Acts by which every judge of the High Court can exercise every kind of jurisdiction possessed by the High Court, conferred no new Admiralty jurisdiction upon the High Court. (1) [1923] Ex. C.R. 217. (2) [1920] 20 Ex. C.R. 153 at 154. (3) [1910] 79 L.J.P.C. 17; [1909] A.C. 597.
8 EXCHEQUER COURT OF CANADA [1927] 1926 In the same case, at p. 20, Lord Gorell further says that Tan ss. the Exchequer Court was constituted by the Exchequer Woron. Court Act (50-51 Vict., c. 16) and that it has no common V. CANADIAN law jurisdiction and that AMERICAN its Admiralty jurisdiction is derived under the Colonial Courts of Admir- LNa CoO.,. ,LmD. alty Act, 1890, and the Canadian Act of 1891. And at p. 22: Audette J. In their Lordships' opinion this case is unaffected by the Judicature Acts . . . and if applied it would have the effect of altering the Admiralty jurisdiction into a general jurisdiction. Adding at p. 23: Therefore as the Exchequer Court has no common law jurisdiction and the respondents had no right under the Admiralty jurisdiction . . . they could not enforce their counter-claim in that court. Again at p. 19, in the quotation of Burbidge J. it is said: It is argued that because a judge of the High Court in England has otherwise authority to hear and decide such a claim . . . this court has a like jurisdiction and authority. That, it seems to me is not the effect of the statute referred to. The jurisdiction which this court (Can-adian) may exercise under the statute mentioned (Acts of 1890, etc.), is the Admiralty jurisdiction and not the general or common law jurisdiction in England. See Clement'ss Canadian Constitution, 3rd ed., p. 24. The plain reading of the Act of 1890 ties the jurisdiction of , the Canadian Admiralty Court to that of the English High Court as it existed in 1890. Thus the Canadian jurisdiction is, so to speak, static and stereotyped. Canada has the full jurisdiction existing in England at the time of the passing of the Act and no more. Moreover, by the preamble of The Admiralty Act, 1891, (Canada) it is said that the Exchequer Court shall be a Court of Admiralty jurisdiction, with the jurisdiction in the said Act mentioned. That is the Imperial Act of 1890. See also The Ship W. J. Aikens (1) . Therefore the position or jurisdiction of the judge of the High Court in England is quite different from that of the Admiralty Judge in Canada. Indeed, in the Cheapside case (2), wherein the question of jurisdiction with respect to a counter-claim (as in the Camosun case) was again considered, it was also found that the judge of the Court of Admiralty does not cease to be a judge of the High Court because he is a Judge of the Court of Admiralty, and although as Judge of the Court of Admiralty, he may have no jurisdiction in such (1) [1893] 4 Ex. C.R. 7 et seq. (2) [1904] P. 339, at p. 343.
Ex. C.R. EXCHEQUER COURT OF CANADA 9 a case as this . . . as judge of the High Court he has, and whether 1926 or not he can blend those two jurisdictions is a matter for his discretion `^'—"" . . . In this case the judge of the Court of Admiralty has endeavoured THE 88. to do justice by not dividing the two jurisdictions, but by availing him- Woron. v self of the fact that he has a double jurisdiction, which will enable him C ANADIAN to do justice in this way. AMERICAN To return to the question of jurisdiction under the Im- Co L . penal , Act of 1925, sec. 22 , reads as follows : AudetteJ. 22. (1) The High Court shall, in relation to Admiralty matters, have ._ the following jurisdiction (in this Act referred to as "Admiralty juris- diction ") that is to say— (xii) Any claim— (1) arising out of an agreement relating to the use or hire of a ship; or (2) Relating to the carriage of goods in a ship; or (3) in tort in respect of goods carried in a ship; unless it is shown to the court that at the time of the institution of the proceedings any owner or part owner of the ship was domiciled in England; (b) Any other jurisdiction formerly vested in the High Court of Admiralty; (c) All admiralty jurisdiction which, under or by virtue of any enactment which came into force after the commencement of the Act of 1873, and is not repealed by this Act, was immediately before the commencement of this Act vested in or capable of being exercised by the High Court constituted by the Act of 1873. This Act of 1925 should be read in the light of the Camo-sun case (ubi supra) which holds that: The Judicature Acts, by which every judge of the High Court can exercise every kind of jurisdiction possessed by the High Court, conferred no new Admiralty jurisdiction upon the High Court. The jurisdiction of the Exchequer Court on its Admiralty side cannot be wider than it was at the time of the passage of the Colonial Courts of Admiralty Act, 1890, unless supplemented by clear and express legislative provisions. As said in Craies, on Statute Law (3rd ed., p. 79), Coke's rule has been adopted by the English Courts, and for modern use is best expressed by Lord Esher in Sharpe v. Wakefield (1). The words of a statute must be construed as they would have been the day after the statute was passed, unless some subsequent Act has declared that some other construction is to be adopted or has altered the previous statute. See also The Alina (2). Again at p. 66: If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound these words in their ordinary (1) [1889] 22 Q.B.D. 239 at p. (2) [1880] L.R. 5 Ex. D. 227, at 241. p. 230 et seq.
10 EXCHEQUER COURT OF CANADA [1927] 1926 and natural sense. The words themselves alone do in such case best declare the intention of the law-giver. THE SS. Woron. At p. 70: v. If we depart from the plain and obvious meaning . . . we do not in CANADIAN AMERICAN truth construe the Act, but alter it. SHIPPING At p. 113: CO., LTD. A distinct and unequivocal enactment is also required for the purpose of Audette J. either adding to or taking from the jurisdiction of a Superior Court of Law. . . "The creation of a new right . . . is plainly an act which requires (distinct) legislative authority." Lord Mansfield in Rex. v. Vaughan (1) says that No Act of Parliament made after a colony is planted is construed to extend to it without express words showing the intention of the legislature to be that it should. Lord Bowen in Hill v. Brown (2) says that after a colony is founded subsequent legislation in England altering the law does not affect the rights of the settlers unless it is expressly made to extend to the province or colony. See Tarring On Law Relating to Colonies, 4th ed., pp. 3 and 4. The policy of the law that jurisdiction cannot be extended except by clear and unambiguous legislation is attested by all modern books. And we have so far back as the first quarter of the eighteenth century, Cowper L.C. in Reeves v. Buttler (3) exclaiming: God forbid that judges upon their oath should make resolutions to enlarge jurisdiction. Holt C.J. in the famous case of Ashby v. White (4) said: I agree we ought not to encroach or enlarge our jurisdiction; by so doing we sever both on the right of the Queen and the people. Later on in the century, Sir William Scott (Lord Stowell) said in The Two Friends (5) that this court is not hungry after jurisdiction. Kekewich J., in re Montagu Derbishire v. Montagu (6) said: It •is part of may duty to expound the jurisdiction of the court. It is not part of my duty to expand it. It is especially true of the jurisdiction of the Admiralty Court, owing to the jealous eye turned upon it by the common law courts, that the foundations of its jurisdic- (1) [1769] 4 Burr. 2500. (5) [1799] 1 C. Rob. 280. (2) [1894] A.C. 124. (6) [1897] L.R. 1 Ch. D. 685 at (3) Gilbert's Eq. 195, at p. 196. 693. (4) 2 Raym. Ld. 938 (Lord Raymond's Rep.)
Ex. C.R. EXCHEQUER COURT OF CANADA tion have to be made doubly sure. See Roscoe's Ad. Pr.— Introduction, passim. If any other rules than those above mentioned were to be followed, the result would be that the court would be legislating. It is for the legi ~ sl ature to enlarge tion if it sees fit and it is not a matter for the court. Now besides the considerations to which I have just ad- verted, we have the Colonial Laws Validity Act passed by the Imperial Parliament in 1865 (28-29 Vict., ch. 63), which by section 1 enacts that An Act of Parliament, or any provision thereof, shall . . . be said to extend to any colony when it is made applicable to such colony by words or necessary intendment of any Act of Parliament. Then if we consult text-books on the subject we find Lefroy, Canada's Federal System, at p. 51, who says: The legislative bodies which have power to make statutes of one sort or another, binding upon Canadians, are the Imperial Parliament, the Dominion Parliament. . . . The British North America Act contains no renunciation of the paramount authority of the Imperial Parliament. . . At n.54: But the intention of an Imperial Act to apply to self-governing colonies must be clearly expressed. The same view is propounded by Dicey, Law of the Constitution, 8th ed., pp. 100, 102, 103, 108, 109, 114 and 115. See also Todd, Parliamentary Government in the British Colonies, 2nd ed., pp. 29 and 155, wherein at p. 215, after recognizing the paramount authority of the Imperial Parliament to legislate for Canada, he says: Henceforth it is only such Imperial Laws as were in force at the time of the establishment of the colony that apply to the same, not such as may be thereafter enacted; unless " by express words or by necessary intendment, they are made applicable." The same opinion is also to be found in Clement's Canadian Constitution, 3rd ed., at p. 31; at p. 54 he says: As then the British Parliament may legislate imperially, that is to say, may extend its enactments to the colonies generally or to some one or more of them in particular, it is important to know does so extend. Prima facie the British Parliament must be taken to legislate for the United Kingdom (1) only, and there cation of its intent in that respect if a statute is to be read as extending to a colony. Having considered the question of jurisdiction in this case with great care in the light of the authorities cited (1) 15-16 Geo. V, ch. 49, sec. 227 (Imo ) 11 1926 THE Se. Woron. CANADIAN g t he juri j s u d r i s c d - i A c-B WrING Co., LTD. Audette J. express when a British Act must be manifest indi
12 EXCHEQUER COURT OF CANADA [1927] 1926 above, I have reached the conclusion that the Exchequer THE Court of Canada under the Imperial Act of 1925 (15-16 Woron. Geo. V, eh. 49, sec. 22, subsec. 12) has no jurisdiction to V. CANADIAN entertain the action in which the proceedings were taken AMffiiICAN SHIPPING which form the subject ofthis appeal; and I rest my con-CO., LTD. clusion upon the fact that this statute not only lacked Audette J. express words but also " necessary intendment " to bring it into force in Canada. Having reached this conclusion on the question of jurisdiction, I must find that the action in which the writ and warrant were issued is not cognizable by the court, and that the writ and warrant themselves must be set aside. However, I am glad to realize that the respondent is not deprived of all remedy by reason of this appeal being allowed. The respondent still retains his right to institute an action in personam. The appeal will be allowed and the writ and warrant set aside. The whole with costs. Judgment accordingly. Solicitors for appellant: Tupper, Bull & Tupper. Solicitors for respondent: Griffin, Montgomery & Smith. (1) The following are the reasons ject to the provisions of this sec- for judgment of Martin L.J.A. tion, extend to— This is a motion to set aside the (a) any claim arising out of an writ and warrant of arrest on the agreement relating to the use or ground that the court has no juris- hire of a ship, and diction to entertain this action for (b) any claim relating to the car- damages, by the charterers of the Hage of goods in any ship; and ship, occasioned, as alleged, by (e) any claim in tort in respect deviation from a specified route of goods carried in any ship; across the Pacific from Vancouver Provided that— to Yokohama in November, 1925, (i) this section shall not applyin and by not going to the nearest to any case in which it is shown to the port in the Aleutian Islands for court at the time of the institution coal, if necessary, instead of to of the proceedings any owner or Honolulu. part owner of the ship was domi- The question turns upon the con- ciled in England or Wales; and struction of sec. 5 of the Admin-(ii) if in any proceedings under istration of Justice Act, 1920, this section the plaintiff recovers a (Imp.) (1), as follows: less amount than twenty pounds, "5. (1) The Admiralty jurisdic- he shall not be entitled to any costs tion of the High Court shall, sub- of the proceedings, or, if in any (1) 10-11 Geo. V, c. 81.
Ex. C.R. EXCHEQUER COURT OF CANADA 13 such proceedings the plaintiff re- for " Vice-Admiralty Court" or for 1926 covers a less amount than three other expressions respectively refer- hundred pounds, he shall not be en- ring to such Vice-Admiralty Courts THE SS. Woron. titled to any more costs than those or the judge thereof; and the Col- v. to which he would have been en- onial Court of Admiralty shall have CANAD IAN titled if the proceedings had been jurisdiction accordingly." AMERICAN brought in a county court, unless in SHIPPING To carry out the intention of the Co. LTD. either case the court or a judge cer- said Imperial Act, the Parliament tifies that there was sufficient of Canada passed in 1891 the said Martin reason for bringing the proceedings Admiralty Act of that year, and its L.J.A. in the High Court. title declares that it is— (2) The jurisdiction conferred by this section may be exercised either "An Act to provide for the ex- in proceedings in rem or in pro- ercise of Admiralty Jurisdiction ceedings in personam." within Canada in accordance with the Colonial Courts of Admiralty It is conceded that if the effect Act, 1890." of this section extends to Canada then there is jurisdiction, but Sections 3 and 4 provide that:— otherwise none. Said jurisdiction is "The Exchequer Court is and primarily derived from the Col- shall be, within Canada, a Colonial onial Courts of Admiralty Act, Court of Admiralty, and, as a (1890) (Imperial) (1), and the Ad- Court of Admiralty, shall, within miralty Act of 1891 (Canada) (2), Canada, have and exercise all the now chapter 141 of R.S.C., 1906. jurisdiction, powers and authority Sec. 2 (2) of the former act pro- conferred by the Colonial Courts vides that:— of Admiralty Act, 1890, and by this "The jurisdiction of a Colonial Act." Court of Admiralty shall, subject Such jurisdiction, powers and to the provisions of this Act, be authority shall be exercisable and over the like places, persons, mat- exercised by the Exchequer Court ters and things, as the Admiralty throughout Canada, and the waters jurisdiction of the High Court in thereof, whether tidal or non-tidal, England, whether existing by virtue or naturally navigable or artificially of any statute or otherwise, and made so, and all persons shall, as the Colonial Court of Admiralty well in such parts of Canada as may exercise such jurisdiction in have heretofore been beyond the like manner and to as full an ex- reach of the process of any Vice-tent as the High Court in Eng- Admiralty court as elsewhere there-land, and shall have the same re- in, have all rights and remedies in gard as that court to international all matters, including cases of con- law and the comity of nations." tract and tort and proceedings in rem and in personam, arising out And subsec. (3) declares: of or connected with navigation, "Subject to the provisions of this shipping, trade or commerce, which Act any enactment referring to a may be had or enforced in any Col-Vice-Admiralty Court, which is onial Court of Admiralty under the contained in an Act of the Imperial Colonial Courts of Admiralty Act, Parliament or in a Colonial law, 1890." shall apply to a Colonial Court of For the motion it is submitted Admiralty, and be read as if the that the Imperial Act of 1920 does expression " Colonial Court of Ad- not extend its increased British miralty" were therein substituted jurisdiction to Canada because our (1) 53-54 Viet., c. 27. (2) 54-55 Viet., e. 29.
14 EXCHEQUER COURT OF CANADA 1926 Canadian jurisdiction was " stereo- fair meaning of its language will typed" by the Imperial Act of 1890 allow; THE SS. and so this court " cannot exercise Lush. 4) ; Woron V. powers conferred by Imperial ([18741 L.R. 5 P.C. 482), and CANADIAN Statutes of a later date . . . AMERICAN less such statutes in terms are made To these cases should be added ° SH o I ., P PING applicable to the Colonial Courts." C LTD. In answer to this the plaintiff's Martin counsel submits that the exact the Privy Council in the L.J.A. question is not whether the Im- perial Act of 1920 is in force here and 492, their lordships saying, p. but whether when any new juris- tion is conferred upon the Admir- alty Court in England this court "falls heir to the same, jurisdiction" grievance, by amplifying the —The King v. The Despatch There is no decision upon the exact miralty, ought, according to the point but there are some cases general rule applicable to such which require attention. Thus in statutes, to be construed liberally, Harris Abattoir Co. v. The Aledo (2), in the Quebec Admiralty D,is- which the fair meaning of its lan-trict of this court it was decided guage will allow. And the decisions that an action in rem for damages upon it have hitherto proceeded for goods carried or to be carried upon this principle of interpreta-out of a Canadian port to a foreign tion. country could not be entertained for lack of jurisdiction under sec. the solution of the present ques-6 of the Admiralty Act 1861 (ex- tion must be approached, as later tended to Canada by the conjoint to be considered. operation of the Acts of 1890 and 1891, supra.) but, unfortunately, decisions of the said Quebec the existence of the statute of 1920, trict of this court which repeals sec. 6, escaped the at- tention of the court and counsel the express declaration in the Inland therefore the present point was perial Merchant Shipping (Steve-not even considered. There is, however, this expression of appor- 41, sec. 3, that " all the courts hay- tionate value at p. 219:— "Section 6 above referred to has could enforce it, which clearly in-been the subject of many judicial eluded this court as it is the Im-decisions in the English Court of perial Parliament that, alone, can Admiralty, and being remedial of confer jurisdiction upon it. grievances which British merchants had against the owners of foreign ships for short delivery of goods tice Idington, at p. 320, in a brought to England in foreign ships senting judgment referred to the or their delivery in a damaged present point as one which " may state, ought to be construed with as become an interesting inquiry " great latitude as possible so as to and went on to say, " but in the afford the utmost relief which the view I take of this case the neces- (1) [1915] 22 B.C.R. 365-6. (2) [1923] Ex. C.R. 217. (5) [1906] 38 S.C.R. 303. [1927] The St. Cloud ([18631 Br. Sr The Pieve Superiore The un- Cap Blanco ([1913] P. 130)." The Bahia (3), a decision of Dr. Lushington which was approved by Pieve Superiore case, supra, at pp. 490 492:— "The statute being remedial of a juris (1). diction of the English Court of Ad-so as to afford the utmost relief It is in this light, therefore, that The point is not touched by the Dis in Ferns v. The Ingleby (4), because in it there was dores and Trimmers) Act, 1911, cap. ing jurisdiction in Admiralty" Then in the D. C. Whitney v. St. Clair Navigation Co. (5), Mr. Jus-dis-(3) [1863] Br. & L. 61. (4) [1923] Ex. C.R. 208.
Ex. C.R. EXCHEQUER COURT OF CANADA sity for following such inquiry ... These remarks are most appropri-does not arise," and so no assist-ate to the present case, and in pro- ance is to be derived from his de- seeding to apply them to the con- THE SS. cision so reserved, nor do I think sideration of the said Acts of 1890 that, having regard to the subject and 1891 one major "evil" to matter and context, any real light which their " remedy" of " is derived from the expressions used fying the jurisdiction " was directed by the Privy Council in Bow, Mc- was the very unsatisfactory state of Lachlan & Co. v. The Camosun affairs (1). exercise of Admiralty Jurisdiction It is to be noted that by sec. 21 under various Imperial statutes of the said Administration of Jus- (vide tice Act, 1920, said sec. 6 of the Act many Vice-Admiralty courts in the of 1861 is repealed and said sec. 5 several provinces with no appellate in effect substituted therefor with a tribunal in Canada from their considerable amplification of juris- connected decisions but only to the diction admittedly covering the Privy Council in London (as in facts of this case. e.g., tendant delay and expense so great Approaching, then, the subject in the light hereinbef ore indicated, it in t o m a was said by Lord Chancellor H a al n s d - lack of harmony in decisions. bury in Herron v. Rathmines Rathgar Improvement Commis-This very important question of sinners (2) that:— local appeal is remedied by sec. 5 of the Act of 1890 and the existing "* * * The subject-matter with ultimate appeal to His Majesty in which the legislature was dealing, Council is preserved by sec. 6 (as and the facts existing at the time to which, see Mayers' Admiralty with respect to which the legis- Law and Practice ([1916] p. 295) lature was legislating, are legitimate but with certain restrictions as topics to consider in ascertaining therein provided. what was the object and purpose of By sec. 17 of the same act the the legislature in passing the Act Vice-Admiralty Courts in Canada they did." were abolished upon the coming And in Eastman Photographic Ma- into force of this court as estab-terials Company v. Comptroller lished under the Canadian Act of General of Patents (3), the same 1891, but if those former courts very learned judge said, also in the were still in existence and exercising House of Lords, p. 576:— locally the jurisdiction of the High Court of Admiralty, it would, I " My Lords, it appears to me apprehend, be clear that their that to construe the statute now in diction would march with that of question, it is not only legitimate said High Court and increase or debut highly convenient to refer both crease as the case might be in ac-to the former Act and to the ascer- cordance with Imperial legislation tained evils to which the former affecting that Imperial Court. Such Act had given rise, and to the later being the case it follows, to my Aot which provided the remedy. mind, that the present Admiralty These three things being compared, Court of Canada (i.e., the Exche- I cannot doubt the conclusion." quer Court) being substantially (1) [1909] 79 L.J.P.C., 17 at p. 22. (2) [1892] A.C. 498, at p. 503. 15 1926 Woron. v. CANADIAN ampli- AMERICAN SHIPPING a LTD. ,—_ in Canada occasioned by the Martin L.J.A. — said Act of 1890, passim) by dis - Redpath v. Allan (4), with at- a n d y e n ca ia se l s o a f s j u to s t l i e c a e d , a in n d p r a a l c s t o ic a e juris (3) [1898] A.C. 571. (4) [1872] L.R. 4 P.C. 511,517.
16 EXCHEQUER COURT OF CANADA [1927] 1926 and essentially the substitute for jest always to minor exceptions for and successor of all the said Vice- special reasons. THE Ss. Admiralty Courts (with additional An additional indication of this Woron. i nland powers and jurisdiction cf., V. intention is to be found in the CANADI AN sees. 4 and 17 ) likewise marches in unusual, but in the circumstances AMERICAN the same jurisdiction and it would very appropriate way in which the SHIPPING require clear language to the con- desired result is obtained by simply Co., LTD. trary to deprive it of the same con- making interchangeable expressions Martin tinuous jurisdiction as is cumu- between the names of the new Col-L.J.A. latively possessed by the Imperial onial Courts of Admiralty and the Court for the local exercise of old Vice-Admiralty Courts, and, whose jurisdiction it is in reality also, the repeal of said sec. 21 of the local machinery and nothing the Act of 1861 and the substitu-more, within that same court's tion of sec. 5 therefor, as before powers. noted, supports this view. This construction is so appropri-I do not, in brief, think that it ate to the comprehensive " object is necessary to resort to implica-and purpose of the legislature " in tion to sustain the jurisdiction in-1890, that I find myself unable, yoked because, having regard to after very careful consideration to the subject matter and obvious intake any other view of it. Bearing tention, the object in view has in mind the common object of the been clearly attained by that " lib-two statutes in the special circum- eral" construction of the statutes stances, I can find nothing in reason in the manner hereinbef ore laid to support the view that the two down as the guiding principle there-legislatures concerned intended to for. reduce the local application of this The plaintiff's counsel in support special Imperial jurisdiction to a of his position submitted in his stereotyped form and thereby favour the view taken by the arrest the local progressive develop- learned author of that work of ex -ment to meet those new conditions ceptibnal merit, Mayer's Admiralty which must inevitably arise in the Law, supra, p. 5, as of assistance, case of all legislation of an import- and it unquestionably is, and in ant general nature such as this. By many circumstances (conveniently the Interpretation Act of Canada, set out in Craies Statute Law, 3rd R.S.C., 1884, section 7 (3) " the ed., 136) the court will entertain law shall be considered as always the views of text-writers, and in speaking" and this is only a this case I may say, adopting the declaration of an ancient principle language of the Master of the Rolls of construction of English statutes, (Sir George Jessel) in Re Warners and in my opinion, it was not con- Settled Estates (1), that: templated by either of the said legislatures that the voice of that " I should not have any difficulty executive one which was "speak- without the assistance of the text-ing" at large at the time should writers, but it is very satisfactory thereafter be silenced locally so as to find they have considered it into retard that beneficial progress dependently in the same way. which could be attained by the It follows that the motion is dis- various Imperial possessions march- missed with costs to the plaintiff ing together in maritime legislative in any event. development in pursuance of a gen- eral and harmonious scheme, sub- Judgment accordingly. (1) [1:;11 17 Ch. D. 711 at p. 713.
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.