404 EXCHEQUER COURT REPORTS. [VOL. IX. BRITISH COLUMBIA ADMIRALTY DISTRICT. 1905 COPE v. S. S. RAVEN AND MAYHEW. June 20. Jurisdiction—Action in rem---Arrest of ship—Action between co-owners for account. This Court has as largeajurisdiction as the High Court of Admiralty, and therefore in an action between the co-owners of a ship for an account, the ship may be arrested. MOTION by the defendant Mayhew, joint co-owner of a ship which had been arrested in an action in re* at the suit of the plautiff, the other joint co-owner, to set aside the warrant of arrest and release the ship therefrom. The motion was argued, at Vancouver, before the Local Judge for the British Columbia Admiralty District, on June 7th and 17th, 1905. Sir 'Charles Hibbert Dupper, 1C.O., in support of the motion : In substance -the points submitted on behalf of the defendant show that there is no authority for proceeding in rem under seotio`n 8 of 24 Vic. Chapter 10, which provides that the i{igh Court shall have jurisdiction to decide all questions arising between co-owners or any of them touching the ownership, possession or earnings of any ship registered in England and Wales and to settle all accounts in relation thereto between the parties. This section does not constitute a maritime lien and, therefore, does n(t give the right to proceed in rem. The Pieve Superieure (1). By section 85 of the above Act, however, it was particularly provided in the case of the High Court of Admiralty as follows :— (1) 43 L. J. Adm. 20.
VOL. IX.] EXCHEQUER COURT REPORTS: 405 " The jurisdiction conferred by this Act on the High 1 905 Court of Admiralty may be exercised either by pro. CorE ceedings in rem or by proceedings. in personam," and Q E ;111 s 'p unless the plaintiff can show that this section applies RAVEN. to the colonial courts, it is, clear, that no. action lies in ô a rte, rem for an account between co-owners. This action is brought to have an account taken of the earnings of the steamship Raven. The defendant, Mayhew; submits that section 35 deals in terms only with the practice and procedure in the High Court of Amiralty and that the legislation in, England, in 1890, and ip Canada, in 1.891, conferred jurisdiction on the colonial courts of admiralty and left to the local authorities complete discretion as to the practice and procedure. The Colonial Courts of Admiralty, Act 1890, and our A4miraltyi Act; 1891, provide for the exercise of the jurisdiction conferred. Our rule 2 is as follows :—" Actions shall be of two kinds. Actions in rein, and actions in. persrrna,m;. . The notes to this rule in .&dwell'$ Admiralty Prac . (1) show that the'action in rein is contined to the cases of a maritime lien, or to cases , as to which jurisdiction in rem bas been conferred, by statute. The cases relied on by the plaintiff are all referable to that provision in the English Act with respect to the procedure in the High. Court of Admiralty and, therefore, it is submitted, they have no application to the procedure prescribed under the Acts and Rules in dealing. with, the practice in this court. It is clear from. the case . of Hall v. The Ship Sea- ward (2), that, as; late as;1893, there had been, no preten- tion that under the jwri.dieliona:l provisions of the English Act, now transferred to the colonial courts, one (1) P. 13. (2) 3 Ex. C. R. 268.
406 EXCHEQUER COURT REPORTS. [VOL. IX. 1905 co•owner could either proceed against the ship or COPE arrest the ship in an action for an account. V. STEAMSHIP Inspection of that report will show that the plaintiffs, RAVEN. part owners of the ship, sued the defendants, as part Argument of Counsel. owners, and it was not pretended in the argument that there was either a maritime lien or a right to arrest. The sole question was as to jurisdiction and that is not now disputed. In the edition of 1902 of Williams & Bruce, at page 323 note (k), it is said :— " An action in personam is also usually entitled in the same way as an action in rem, deriving its title from the ship or other property in relation to which the claim is made." The English cases mentioned in plaintiff's memorandum as authority for proceeding in rem are all based on the 35th section of the Admiralty Courts Act, 1861. The narrow point then is, does this section apply to Canadian courts ? The plaintiff bases his contention on : (1.) Sub-section.2 of section 2 of the Colonial Courts of Admiralty Act, 1890. (2.) And our Admiralty Act, 1891, sections 3 and 4. The defendant's submission is that the sections mentioned deal only with the jurisdiction ; and jurisdiction in this case is admitted. These empowering sections certainly enabled our court to prescribe procedure in the same manner as the High Court, and also to re-enact in our rules the provision in question, viz : Section 35 of the Act of 1861. This was, however, not done. On the contrary rule 2 simply distinguishes the kind of actions which may be brought. The action in rem is, therefore, confined under the rules of maritime law to the case of a maritime lien and in the action in personam is for all other cases, as this, where jurisdiction.is given to our courts.
VOL. lX.] EXCHEQUER COURT REPORTS. 401 The plaintiff next invokes rule 37 (cl): 1905 This has reference to an action in" rem (rule 35) COPE where the action is for the " possession " and the words sTEAD isHIP " employment or earnings " should be read, " employ- RAY" - ment and earnings," incidental relief in the case of an ô cô.~éi action for possession which is essentially in rem: These are the words of the English rules prior to the Act of 1861, when it is admitted there:was no jurisdiction in an action for account shnplÿ, as this action is.r It is submitted there is nothing in the point made by the plaintiff that an action in rem lies under section, 5 of the Imperial Act and that this has been recognized, in our court. .. Section 5 of the Imperial Act does 'not require sec- tion 35 of that Act to give a remedy in rem. It is obvious by section 5 .and cases referred to that, as the jurisdiction; in the case of a claim for necessaries only applies where the owner is non-resident in the juris-. diction, the remedy in, rem is 'the sole means of''enforc- ing the jurisdiction ; whereas by section 8, in _connec- tion with the case at issue, jurisdiction, is `given "on all . questions arising between the co-owners." Here it is clear the jurisdiction could only be exercised in personam and consequently section 35 of that Act has been applied in England and Wales to authorize pré- ceedings in rein, though the same authorities have shown that no maritime lien is constituted. The two Exchequer court cases cited by the plain- tiff in his last memorandum do not carry the principles further. As to the case of the Rochester and Pittsburgh Coal and Iron Co.`, y. The Ship The Garden City, the plain- tiff refers to the report 'of this case before McDougal L.J. The case, however, ' went before the Judge of the Exchequer Court on appeal (1) and examination of his (1) 7 Ex. C R. 94.
408 EXCHEQUER COURT REPORTS. [VOL. IX. 1905 judgment shows that the action in rem lies in the case COPE of necessaries supplied under the section above, V. STEAMSHIP namely, section 5, wholly irrespective of section 35. RAVEN. Section 4 of our Act as relied on by plaintiff deals of x C .u o ~ u „ ns e 1 el i . with jurisdiction and not with pr ocedure,except as to the last part thereof which deals with rights and reme; dies ; but a careful reading of this section shows that that portion dealing with.rights anti remedies is refer-able only to the Colonial Courts of Admiralty Act, 1890, and consequently does not carry the question further than is submitted in the first portion of this memorandum on behalf of the defendant herein. B. P. Wintemute, contra : The defendant has admitted that the Admiralty Courts Act of 1861 is in force in Canada with the exception. of section 35 ; that our court has jurisdiction in personana in actions of account between co-owners ; that the. Court of Admiralty in England has jurisdiction in rem by arrest of the ship in actions of this kind. This action i.e brought under section 8 of that Imperial Act which defendant admits is in force in Canada. Section 35 of the Admiralty Courts Act 1861 provides that the jurisdiction of the High Court of Admiralty may be exercised either by proceedings in roil or in personam The Colonial Courts of Admiralty Act, 1890 confers jurisdiction on colonial courts. Sub-section 2 of section 2 provides that a Colonial Court of Admiralty may exercise such jurisdiction in. like manner and to as full an extent as the High Court in England ; the word exercise being used in this section in the same sense as in section 35 of the Admiralty Courts Act, 1861. It is submitted that section 2 of the Colonial Courts of Admiralty Act makes both sections 8 and 35 of the Aamiralty Courts Act, 1361 apply to colonial courts.
VOL. IX.] EXCHEQUER COURT REPORTS: 409 By section' 3 of our Admiralty Act it is declared that 1905 the Exchequer Court of Canada shall, have and exercise COPE all •the jurisdiction, powers and authority conferred. by STE~snIP the Colonial Courts of Adrni' a1tj, Act. This, it is sub- R&VEN. mitted, brings into force in Canada not only section 8 et c J• but section 35' of the Imperial Act. Section 4 of our Act provides that all persons shall have all rights and remedies in all matters, including proceedings in rem and in personam:, arising out of or in connection with shipping as may be had and enforced in any court of Admiralty under the Colonial C'ourts. of Admiralty- Act. This, it issubmitted,virtually re-enacts section 35of the A.'I niralty Act, 1861 and empowersour courts to entertain an action in rem for an account between co-owners. Our rules provide for actions in rem and, inpersonam. Where an action in rem is brought, a warrant for the arrest of the ship may issue, rule 35. By our rule al (4) it is clearly shown that in, an actionbetween co-owners relating to earnings of a ship, . it is contemplated that a warrant may issue for arrest of the ship. This rule is in words almost identical with the words of section 8 of the Imperial Act and, the plaintiff submits, was intended, to apply to proceedings under said section 8. The English cases clearly slow that although no maritime lien exists, there is the same authority for bringing actions in rem under sections 4,. 5 and 6 of the Admiralty Act, 1861, as under section 8 thereof ; sections 4, 5 and 6 requiring section 35 to give a remedy in rem as much as section 8 does. (The Idas (4; The Two Ellens (2),; The Pieve Speriore (3) ; The Cella (4.) Good/ y The S.S. Colwell (5). (1) Br. & L. 65. (3) L. R. 5 P. C. 482. P. D. 82. (2) L. R. 4 P. C. 161. (4) 13 P. D. 82. (5) 6 Ex. C. R. 196.
410 EXCHEQUER COURT REPORTS. [VOL. 1À. 1905 This was an action in rem for necessaries under COPE section 5 of the Imperial Act. It was decided that the V. STEAMSHIP court had jurisdiction in rem notwithstanding that a RAVEN. maritime lien did not exist, and motions to set aside Reason for Judgment. the warrant and writ of summons were dismissed. The Rochester and Pittsburg Coal and Iron Co. v. The ship The Garden City (1). This was also an action under section 5 of the Act. It was held that the court had jurisdiction to entertain an action in rem although no maritime lien existed. The plaintiff submits that as our courts have jurisdiction to entertain an action in rem under section 5 of the Admiralty Act 1861, they have the same jurisdiction to entertain an action in rem for an account under section 8 of the Act, there being no maritime lien in either case. Rule 4, referring to Form 2, (How. Adna.Prac.) (2) provides for the title of an action in rem, which is altogether different from the title of an action in personam (see Form 3), and it is submitted that the case of Hall v. The Ship Seaward (3) was, as shown by the title in the report, an action in rem, and consequently a direct authority in the plaintiff's favour. Jurisdiction in rem under sections 5 and 8 having been conferred on the court by the same statutory authority, it is submitted that the cases relied ou by the plaintiff are in point and apply to the procedure in our Admiralty Court. MARTIN, L. J. now (June 20th, 1905) delivered ,judgment. While agreeing with the defendant's counsel that there is no decision on the point raised on this application, yet in view of the clear language of the various (1) 7 Ex. C. R. 34. (2) 3 Ex. C. R. 268. (3) Pp. 15, 97. I I i1•1111-
VOL. IX.] EXCHEQUER COURT REPORTS. 411 statutes under consideration I experience no difficulty Imo, in coming to a conclusion thereon. COPE It is admitted that the joint effect of sections 8 and STÈAMsxip 35 of the Admiralty Courts Act, 1861, is to confer upon RAVEN. the High Court of Admiralty jurisdiction in rem in an t mugr action for an account between co-owners. But it is submitted that the like jurisdiction is not conferred upon this court by the Colonial Courts of Admiralty Act, 1890, section 2, subsec. 2, and The Admiralty Act, 1891, sections 3 and 4. The said subsec. 2 provides that a Colonial Court of Admiralty may exercise admiralty ",jurisdiction in like manner and to as full an extent as the High Court in England," and the said jurisdiction " may be exercised ei+her by proceedings in rem or by proceedings in personam."—Sec. 35. rt I am unable to take the view that anything more than the said Acts was necessary to confer jurisdiction upon this court in the premises, and even assuming, as is contended, that rule 37 (d) carries the case no further, it was unnecessary, in my opinion, to provide for by rule that procedure which was authorized by the statute conferring jurisdiction. Furthermore, and in any event, rule 228 declares that, " in all cases not provided for. by these rules, the practice for the time being in force in respect to Admiralty proceedings in the High Court of Justice in England shall be followed." I point out that though the words are " and earnings," in section 8, yet they are or earnings" in rule 37 (d), and must be so construed. As was said by the learned judge. of the High Court of Admiralty in a decision on the earliest Act in question, other " reasons might be given in support of this construction, but I need not look for motives when the words of the act are plain" (1). (1) The Idas Br. & Lush. 65.
412 EXCHEQUER COURT REPORTS. [VOL. IX. 1905 Suffice it to say that I can find nothing in the said corE acts or rules which indicates that it was the intention STEA v M 't S h H a IP t this court should have less jurisdiction than the RAVEN• High Court of Admiralty. The motion will be dis- r„"a," missed, with costs to the plaintiff in any event. 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.