VOL. XVIII.]. EXCHEQUER COURT REPORTS. :325 QUEBEC ADMIRALTY DISTRICT. MICHAEL JOSEPH STACK, ET AL; - PLAINTIFFS ; THE•BARGE "LEOPOLD", DEFENDANT. THE PROVINCIAL BUILDING & ENGINEER- ING CO., LTD., MIS EN CAUSE. Admiralty—Jurisdiction---Necessaries and repairs—Towage—Maritime lien. By virtue of secs. 4 and 5 of the Admiralty 'Court Act,. 1864 where a ship is not under arrest and its owner is domiciled ih Canada, the Exchequer Court of Canada has no jurisdiction over an action for repairs or necessaries supplied to the ship. 2, Towage performed in connection with the repairs, not at the owner's special request, is not within the purview of "claims and d-e • mands for services in the nature of towage," within the meaning of sec. 6 of the Admiralty Court Act, 1840, as would g ive the Court jurisdiction over the claim; neither claim for towage nor for necessaries is the subject of a maritime lien. 3. An objection to the jurisdiction will hold good even if made after the trial. ACTION in rem and claim for $959.92 for work done, materials furnished, towing and guarding barge "Leopold" from, June, 1916, to the date. of the institution of thé action, and costs. Tried before the Honourable Mr. Justice Maclen-nan, Deputy Local Judge of the Quebec Admiralty District, at Montreal, October 7, 1918. • Alphonse Décary, K.C., for plaintiff.. Lucien Beatireyard, for mis en cause.
326 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 MACLENNAN, Dep. L. J. (July 11, 1918) delivered STACK judgment. LEOPOLD. Reasons for Judgment. The plaintiffs were contractors for the construe- tion of a portion of the Montreal and Quebec highway, under contract from the government of the province of Quebec. The barge "Leopold" and certain other plant were leased by the Quebec government to the plaintiffs in connection with the said contract and were used by the plaintiffs during the seasons of 1915 and 1916, when plaintiffs' contract was completed. The plant belonged to another contractor, who had undertaken to construct a considerable portion of the highway, but failed to complete the whole of his work, whereupon the government took possession of. the plant and gave the balance of the work to the plaintiffs, who paid a rental to the government for the plant. When the plaintiffs completed their contract they notified the government and offered to surrender the plant, including the barge "Leopold". The government declined to take the plant off the plaintiffs' hands, and the claim in this action is to recover the alleged costs of certain repairs to the barge, materials furnished, towing the barge to a dry dock in order to have the repairs made, towing the barge from the dry dock and the costs of a guardian looking after the barge for a considerable time. After trial, and in a written argument submitted by the counsel for the defendant, the question of the jurisdiction of the court was raised. It is well settled law that, the jurisdiction of this court to hear an action for necessaries supplied to a ship depends entirely upon statute. By the Colonial Courts of Admiralty Act, 1890, a Colonial Court of Admiralty
VOL. XVIII.] EXCHEQUER COURT REPORTS. 327 has, subject' to the Act, jurisdiction over the like .91 places, persons, matters and things as the High STvcx Court in England has, and any enactment in an ActT,SOPOLO. of the Imperial Parliament referring to the Admir-`âmentr alty jurisdiction of the High Court in England, when applied to a Colonial Çourt of Admiralty, shall be read as if the name of that possession were substi- tuted for England and Wales. By the Admiralty Court Act, 1861 (24 Vic., ch. 10, Imp.), sec. 4: "The "High Court of Admiralty shall have jurisdiction "over any claim for the building, equipping or re- "pairing of any ship if at the time of the institution "of the ,cause .the ship or the proceeds thereof are "under arrest of the court." And by sec. 5; "The `High Court of - Admiralty shall have jùrisdictiofi "over . any claim for necessaries supplied to any. "ship elsewhere than in the port to which the ship "belongs, unless it is shown to the satisfaction of "the court that at . the time of the institution of the "cause any owner or part owner of the ship is domi- ciled in England or Wales." By the Admiralty Court Act, 1840 (3 and 4 Vic., eh. ,65, sec. 6), the High Court of Admiralty was given jurisdiction to decide all claims and demands for services in the nature of towage and for the necessaries supplied to ' any foreign ship. . At the trial it was proved that the barge "Leo- pold" was registered at the port of Montreal on 'August 5, 1891, and that the registered owner since March 17, 1914, is Samuel Charland, of Montreal. The Provincial Building and Engineering Company, Limited, a body politic and corporate, having its principal place of business in the city of Montreal,. claims that, at the date plaintiffs' services are -allég- , ed to have been rendered, it was and ever since has
328 EXCHEQUER COURT REPORTS. [VOL. •XVIII; 1918 been the real owner of the barge. At the time of the STecx institution of this action the barge was not under LZOPOLD. arrest of the court and the owner was either Char- Reasons for iudgment: land or .the said company. It, therefore, follows that under secs. 4 and '5 of the Admiralty Court Act, 1861, this court has no jurisdiction over the plaintiffs' claim for repairs or necessaries. The Garden City.' The plaintiffs' claim includes two items for • towing, one for $10 for bringing the barge to thé dry dock at Sorel, in order to make some 'repairs cônsidered necessary by plaintiffs, and an item of $20, for towing the barge from Sorel to Berthier, where the plaintiffs retained the barge in their possession. This towing was not done at the request CA the owners of the barge, but was for the convenience of the plaintiffs themselves, and was incidental to the repairs and retention of the barge by plaintiffs. In my opinion this was not the kind of towage which, under the Admiralty Court Act of 1840, sec. 6, would give the court jurisdiction. In my opinion the items for towage were incidental to plaintiffs' claim for necessaries and are to be treated in the same way; The St. Lawrence.' Neither claims for towage nor for necessaries are the subject of a maritime lien; Westrup v. Great Yarmouth Steam Carrying Co.; 3 The Henrich Bj6rn.4 The plaintiffs submit that the defendant's objection to the jurisdiction having been raised after the trial came too late. Dr. Lushington, in The Mary. Anne,' said: "If at any time the court discovers "and the facts show that the court has no jurisdie- 1 (1901), 7 Can. Ex. 94. 2 (1880), 5- P.D. 250. (1889), 43. Ch. D. 241.. 4, (1886), 11 App. Cas. 270. • 5 84 L. J. Adrn. 74.
VOL. XVIII.] EXCHEQUER COURT, REPORTS. "tion, it cannot proceed further in the cause; the • "delay of one or. both parties cannot confer juris- "diction." The objection raised by defendant is not a mere technical' objection which'could be waived ' 8Jud by appearance and proceeding to trial, as under the. statute there is absolute absence of jurisdiction; The Louisa,' The Eleonore,' The Barbara Bosco= witz.3 The defendant could have raised the question of jurisdiction before trial, and if that had been done some expense for both 'parties would have been avoided. The defendant tendered and deposited with the Registrar the sum of $250 with, the defence. As at the time of the institution of this action the barge was not under arrest of the court, and its owner. . was domiciled in Canada, it is clear that the court has no jurisdiction. There will be judgment dismissing the action, each party paying their own. costs, and the Registrar is directed to return the deposit of $250 to the party from whom he received it. Solicitor for plaintiff :Alphonse Décary. Solicitors for mis en cause : Beauregard i (1863), Br. and L. 59.- 2 (1863), Br. and L. 185. 3 (1894), 3 B. C. R. 445. • O • 329' 1 9 18 sTec~ v. LF~eOLD. s g as m ~n e s n f t o . r Action dismissed. ce' Labelle.
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.