VOL. XL]. EXCHEQUER COURT REPORTS. - 179 THE TORONTO ,ADMIRALTY DISTRICT. THE DUNBAR AND SULLIVAN 1907 DREDGING COMPANY AND PLAINTIFFS : M. SULLIVAN Nov 22. ACT I`'ST THE SHIP ''MILWAUKEE." Admiralty--Arrest of ship out of jurisdiction—Jurisdiction of the Admiralty, Court considered— Waiver of protest. The giving of a bond to release a vessel under arrest constitutes a waiver of any objection that might be taken to the jurisdiction of the Court. The D. C. Whitney (38 S. C. R. 303) distinguished. THIS was a motion in Chambers to set aside the writ of summons and warrant issued in this action, on the ground, first, that at the time of the issue of the writ and warrant the ship seized was not in Canadian waters, and secondly, that following the D. G. Whitney, 38 S. C. R. 303 the Court had no jurisdiction. Further facts and arguwent of counsel appear. in the • reasons for judgment. The motion was argued before His Honour Judge Hodgins at the city of Windsor on the 3th day of October . and 8th day of November, 1907. F. A. Hough, for Plaintiffs, A. R. Bartlett for Defendant. HODCTINS, L. J. now (November 22nd, 1907), delivered judgment, This action is brought by the plaintiffs as owners of the " Derrick Scow Number Seven" against the defendant ship Milwaukee for damages occasioned by a collision . between the ship and scow in the Canadian channel of the 1"/
180 EXCHEQUER COURT REPORTS. [VOL. XI. 1907 Detroit River, and within the territorial jurisdiction of THE DUNBAR this Court, on 14th December 1906, causing the sinking ZDREDGING Co. of the scow. The writ of summons and warrant of arrest is T " H " E SHIP were issued on the 25th July, and were served and ex-MILwAaIKEE• ecuted on the 22nd August, and appearance " under Reasons for protest" was entered on the 23th A ugust 1907. A bond - was given under the rule (not under protest) on the 7th September, but was not finally completed until the 26th October, 1907. The seizure of the defendant ship was made as stated in the affidavit of Maxime Laporte, Who executed the warrant of arrest as Deputy for the Sheriff of the County of Essex ; " I boarded the defendant ship for the said purpose in the Canadian channel of the Detroit River about one hundred yards above the head of Bois Blanc Island, and effected the service of seizure aforesaid, when the ship was between the said Island and the Town of Am-herstburg. The defendant ship then proceeded in the said channel to the lower end of the said Island, when she came to anchor in the waters known as Callams Bay, a small inlet or anchorage in the Township of Malden in the County of Essex, below the said Town of Amherst-burg, were arrangements were made for bonding the ship. After the bond had been given. I was instructed by the plaintiffs' solicitor to release the ship, and I returned to where she lay at anchor for that purpose ; withdrew the man I had left in charge and permitted her to proceed on her course. During the whole time that I was on the defendant ship in fullfillment of my duties, and while she lay at anchor in Callams Bay aforesaid the said ship was wholly in Canadian waters." His oral evidence is much to the same effect. The affidavit of Frank D. Osborne, master of the defen-dent ship, states ; "At the time the said ship Milwaukee was arrested she was in motion in passing through the channel between Bois Blanc Island, and the Canadian
VOL. XI.] EXCHEQUER COURT REPORTS. shore, or thereabouts, on her voyage between Chicago and Buffalo, having cleared from Chicago for the said last mentioned port,—both of said ports . being United States of America. The said ship not entering, lying at, or bound for, any Canadian port but while she was in motion proceedi voyage, she was hailed by a tug having on board the' officer who made the seizure in this action ; and it was in 'consequence of the demand of such officer who pur-ported-to be carrying into effect tho 'process of this Hon- ourable; Court, that I submitted to the arrest of the said ship." ' The parties agree that the question of the jurisdiction ôf this Court to try the action be first 'disposed of. This case brings up some of the questions considered by the Supreme Court in the case of the Ship D. C. Whitney • y. The St. Clair Navigation Company, judgment of this Court which is reported in 10 Ex. C. R. 1. But in that case no evidence was given, nor argument advanced, at the trial before me, either that " the ship was in motion on her voyage," or "had come to anchor ;" and there ` seems to have been a difference of opinion respecting either • fact in the Supreme Court. See pages 308, 309 and . 324. The water territory within which the Alleged collision occurred, and within which the arrest was made, was declared by several Statutes, from the Upper Canada .Act of 1831, c. 2 B. 1, down to R. S. O. (1897),'c. 3, s.'7, (if the. . Proclamation of the I6th July, 1792, or the Upper Can ada Acts of 1798, e. ' 5, or of 1818, 'c. 10, had not done so), to be part of the county of Es"sex, by the following reenactment : " the.limits of all the townships lying on the' * * * River Detroit * * * shall extend to the boundary of the Province in such * * * river, in' prolongation of the outlines of each township respectively." (1) 38 S. C. R., 303. . 181 1 THE DUNBAR DRLDGJNG ports of the Co. Milwaukee was THE sarr . MILwAUI BB. g n on the said l .Y e u s d s 'g o m ns é n n o t. r (1) reversing the ' '
182 EXCHEQUER COURT REPORTS. [VOL. XL 1907 By the same Act of 1831, s. 2, jurisdiction was vested THE DUNBAR in the Upper Canada Courts to try all crimes and offences DREDGING Co. committed in, or upon, the said waters; and that they HK S H IP should be tried within any district lying adjacent to such MILWAUKEE. waters ;—which jurisdiction has been continued down to Reasons for Judgment, R. S. C. (1906), c. 146, s. 585. The extent of the exceptional jurisdiction of Admiralty Courts appears to be little known ; nor has the statutory jurisdiction conferred upon the Canadian courts by the sovereign authority in control of the Dominion of Canada been as yet clearly or authoritatively defined ; and, so perhaps it may be conceded that a little juridicial and statutory literature on both jurisdictions, may be explana -tory and useful for the guidance of the profession in future cases.* Subsequent to the Merchant Shipping Act of 1854, s. 521, Imp. (now s. 685 of the Act of 1891), it was held in The Queen v. Sharp, (1859), 5 Pr. R. 135, that so much of the boundary lakes and rivers as were within the Canadian side of the International Boundary line, were bodies of water "over which the Admiralty jurisdiction extended ;" and that by the Imperial Act of 1849, c. 96, R. 1, there was jurisdiction in the Canadian Courts to take cognizance of offenses, although committed within Ameri-can waters. And that this jurisdiction was reciprocal in A dmiralty matters in the American Courts, was sustained by the Supreme Court of the United States in United States y. Rodgers, (1). And in Rex v. Meikleham, (2) it was held that the laws of Ontario extended to the International bountary line of the Provincial waters, and also that where the Legislature bad intended to disregard, or interfere with, a rule of International Law, the Courts were * JUDGE'S NOTE :—Mr. Justice Story has apparently furnished a precedent for this in stating in his judgment Re Bellows and Peck, (1844), 3 Story, p, 441, " It may be proper to make a few observations upon the practice which ordinarily regulates the action of the District Court." (1) (1893), 150 U. S. 249. (2) (1905), 11 O. L. R.' 366.
VOL. XI.] EXCHEQUER COURT REPORTS. 183 bound to give effect to its enactments. This doctrine was 1907 also broadly affirmed by the Judicial Committee of the THE DUnBAK Privy Council in the Conception B case, a bay 20 miles DB&on .G wide at its sea-môuth,—that where the British Parliament THE v S ' HIP had by its Acts declared that bay to the. part of British MILWAUKEE. territory, and subject to the Legislature of Newfoundland R J easons for , udgment. such legislation was concluèive on British tribunals; • Direct United States Cable Co. v. Anglo American Telegraph Company, (1)* To these authorities may be added the following clause (s. 685) of the Merchant Shipping Act. of 1894, which by s. 712, is declared " to apply to the whole of Her Majesty's Dominions" and which is a re-enactment of s.'521 of the Merchant Shipping Act. of 1854. " Where any district within which any Court or Justice of the Peace, or other Magistrate, has jurisdiction either (a) under this Act, or (b) under any other act, or (c) at common law, for any purpose whatever, is situate on the coast of any sea, or abutting on, or projecting into, any bay, channel, lake, river, or other navigable water ; every such Court, Justice, or Magistrate, shall have jurisdiction ever any vessel being on or lying, or passing, off that coast, or being in, or near that bay, channel, lake river, or navigable water; and over all persons on board that vessel, or for the time being belonging thereto, in the same manneras if the vessel or persons were within the limits of the original jurisdiction of the Court, Justice, or Magistrate." Some of the statutory jurisdiction of the British Courts over foreign ships under the above Act, may be classified as follows : (1) Sec. 418. The collision regulations." shall be observed by all foreign ships within British jurisdiction " ; and (1) (1877) 2 A. C. at page 420. *JUDGE'S NOTE :- • This decision disregards the generally accepted doctrine of International Law that says of six marine miles width at their mouth, . measured from headland to headland are wholly part of the territory of the sovereignty to which both headland shores belong.
184 EXCHEQUER COURT REPORTS. [VOL. XL 1007 " foreign ships shall, so far as respects the collision regu- THE DUNBAR lations, * * * be treated as if they were British ships ". DREn (2) Co.. Sec. 504. "Where any liability is alleged to have V. THE SHIP been incurred by the owner of a * * * foreign ship in MILWAUKEE. respect of loss of, * * * or damage to, vessels or goods, Reasons for and several claims are made, or apprehended, in respect Judgment of that liability, then the owner may apply, * * * in a British possession, to any competent court, and that court may determine the amount of the owner's liability, and may distribute that amount rateably among the several claimants ". (3) Sec. 424 enacts that whenever the Government of any foreign country is willing that the British Collision Regulations should apply to the ships of that country, the Crown may by an Imperial Order-in-Council, "direct that those regulations and provisions shall, subject to any limitation of time, provisions and qualifications, contained in the order, apply to ships of the said foreign country, whether within British jurisdiction or not; and that such ships shall, for the purpose of such regulations and provisions be treated as if they were British ships ". Orders-in-council have been made under this section, and will be quoted later on. (4) Sec. 684: " For the purpose of giving jurisdiction under this Act, every (criminal) offence shall be deemed to have been committed, and every (civil) cause of complaint to have arisen, either in the place in which the same actually was committed, or arose, or in any place in which the offender, or person complained against, may be. The jurisdiction "under any other Act," may be found in the Imperial Act of 1840, c. 65, s. 6: "The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of * * * damages received by any ship, or sea-going vessel, * * * and to enforce the judgment thereof, whether such .ship or vessel may have been within the body
VOL XI.] EXCHEQUER COURT REPORTS. 185 of a county, or•upon the high 'seas, at the time when 1907 the * * * damage *was received." .By the Imperial Act THE D BAR of 1849, c. ' 96, s. 1, a D jurisdiction was conferred upon INC,o Colonial Courts to-try crimes 'or offences committed on THEzSHIP the sea, or in any haven, river, creek, or place, where MILWAUKEE. the Admiral had jurisdiction, as if such offences had Tus:~ aa~a ~ra ena been committed within the local jurisdiction of the courts of such colony. And in the Imperial Admiralty Act of 1861, c. 10, a special jurisdiction which may be said to be world-wide is conferred by F. 7, which enacts : " the • High Court of Admiralty shall have jurisdiction over any claim for damages done by any ship." Thy term " any ship" in the above clauses, and in s. €85, applies to a foreign ship in any British port, just•as much. as to an English ship : " Where the words are general, and are. not such as to cause a conflict of laws, then there is no reason why such provisions should not apply to foreign ships also." Reg y. Stewart (1). These jurisdictional powers have been conferred upon this Admiralty Court (being, a court situate on th "navigable waters" of lakes and rivers described in s. 585. of the Merchant Shipping Act, 1894 ;" and also by s. 2. of the Colonial Courts of Admiralty Act of 1890, (Imp.) which reads: "The jurisdiction of a Colonial Court of Admiralty, subject to the provisions of this Act, shall 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." And as if to make this enlarged jurisdiction more clear, sub-section (a) of section 2, provides that : "Any enactment in an Act of the Imperial (1) (1899] 1 Q. B. at p. 970. -
186 EXCHEQUER COURT REPORTS. [VOL. XL 1907 Parliament referring to the Admiralty jurisdiction of the THE DUNBAR High Court in England, when applied to a Colonial DREDGING CO. Court of Admiralty in a British possession, shall be read THES HIP as if the name of that possession were therein substituted MILWAUKEE. for England and Wales." R Ju ea d s g o m ns e n fo t-r And by Pub section 4, the exercise of jurisdiction by a Colonial Court " in respect of matters outside the body of a County, or other like part of a British possession. That jurisdiction shall be deemed to be exercised under this Act, and not otherwise." See further Howell's Admiralty Law, Canada, p. 207. Pursuant to sec. 424 above referred to, the Government of the United States having signified its consent, as provided in that section, an Imperial Order-in-Council was approved on the 7th July, 1897, declaring that thereafter the British regulations respecting collisions should apply to all ships of the United States, whether within British jurisdiction or not. Under the prior Act of 1854, a similar order-in-council had been approved on the 9th January, 1863 ; and on the 30th November, 1864, another order-in-council made the latter order-in-. Council apply to ships of the United States navigating the inland waters of Canada. See " Statutory Rules and Orders-in-Council," (Imp.) v. 4, pp. 1168-1174; Maude and Pollock's Law of Merchant Shipping, p. 586, note ( j) and Appendix pp. 36-46; Abbott on Shipping, (14th ed.) pp. 12 0 n 1 o , t e (o), and p. 1280, note (s). Under this section, and the consent given by the Government of the United States, as well as under sec. 418, and assuming the alleged collision in this case to have taken place in Canadian waters, the alleged offending vessel of the United States isto be treated as if she were a British ship in the jurisdictional proceedings taken against her in this Admiralty Court. And this jurisdiction appears to be confirmed by the case of Pieve Superiore, t1) (1) (1874) L. R. 5 P. C. atp. 491.
VOL. XI.] EXCHEQUER COURT REPORTS. 187 where it was said ; " If the jurisdiction of the Court of 1907 Admiralty over the claim once attached, that Court, in THE DU BAR DRCo INcF their Lordships' opinion, would be competent, at any subsequent time, to entertain a suit either in personam or TAE S HIP in rem, by the arrest of the ship, whenever it came within MILWAUKEE. reach of its process." And in the Girolamo (1); it was Rea d s~omns for .tn ent,. held that foreign vessels and foreign persons are liable to the local muhucipal laws of the country for acts done within the local jurisdiction of its Courts. Counsel for the defendant ship relies for a defence on the statements in the affidavit of Frank D. Osborn, recited above, and oh the seventh article of the Ashburton Treaty of 1842, • which reads ais follows ; "It is further agreed that the channels in the .River St. Lawrence, on both sides of the Long Sault Rapids, and of Barnhardt Island, the channel of the River Detroit on both sides of the Island of Bois Blanc, and between that island and the American and Canadian shores, and all the several channels and passages between the various Islands lying near the junction of the River St. Clair, with the lake of that name, shall be equally free and open to the ships, vessels and boats of both parties." And as to other free passages, through the water communications, and land portages between Lake Superior and the Lake of the Woods, see Article. IL By Article XXVI of the,Washington Treaty of 1871, a further portion of the River St. Lawrence was declared "for ever to remain free and open for the purposes of commerce `o the citizens of the United States, subject to any laws and regulations of Great Britain, or of the Dominion of Canada, not inconsistent with such privileges of free navigation." Comparing these Articles, it, cannot be claimed, I think, that the vessels of the United States, sailing over the 1871 Treaty portion of the St. Lawrence River, are subject to the jurisdiction (1) (1834) 3 Hagg. Ad. 169.
188 EXCHEQUER COURT REPORTS. [VOL. XI 1907 of the Canadian Statute Law and Courts. But when TRE DvNBAB, sailing over the 1842 Treaty portion of the river, that DREDGING co. they are immune from such jurisdiction. The Treaty of THE v S . HIP 1871 affirms a long established doctrine of International MILWAUKEE. Law which must he held to be applicable to both R J easons for udgment. Treaties ;—That no independent sovereignty is to be con- strued to contract itself, by implication, out of its fundamental sovereign rights, nor out of "one of the highest rights of sovereignty, viz.; the right of legislation ;" Hall's International Law, 5th Ed. pp. 339, 340. And per Lord Mansfield, C.J. ; " The Law of Nations, to its full extent, is part of the law of England," Triquet y. Bath, (1). It has long been a doctrine of International law that the territory and jurisdiction of an independant sovereignty are co-extensive. And it is a constitutional rule that to its courts and judges certain of the juridicial powers of the sovereignty are delegated, to be exercied within the territorial boundaries of such sovereignty. And it has long been a doctrine of British law that when the jurisdiction of its courts of justice, and of their juridicial authority have been once established 'by Legislative Acts within such territorial boundaries, or within certain described portions of them, such jurisdiction and authority cannot be suspended, or lessened, or abrogated by the Crown, (unless so authorised by Statute) but only by similar legislative acts of the Parliament, or other legislative authority, by which such ju risdicti on and authority had been established. Mr Justice Story has defined the distribution of the powers of sovereignty to " include within its scope, at least if it is to possess suitable `stability and energy, the exercise of the three great powers, upon which all Governments are supposed to rest, viz : the Executive, the Legis- (1) 3 Burr. 1478.
• VOL. XL] EXCHEQUER COURT REPORTS. 189 lative and the Judicial. " Constitution of the United 1907 States" par. 518. THE DUNBAR DREDGING In the British system of government, the Legislative Co. power is supreme " Bracton and Fleta both hffirm :.Rex TH,.z'SHIP habet superiores in reg no, deum et legem. Item, curiam n-wAIIIZEE. suam" (I) Lord Campbell's Lives of the Chief Justices, Ju menns. v. 1,p.131. • And, commenting on the British treaty-making power, Halléck's International Law says, as to certain classes of treaties : " Nevertheless the treaty binds nobody till its provisions are enacted by law; and a treaty cannot he pleaded in the courts, unless confirmed by an Act of Parliament " (2). A different constitutional rule prevails in the United • States, for by its Federal constitution all. treaties with foreign nations take rank as statute law by Article VII, which reads : " This constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall he made, under the authority of the United States, shall be the supreme law of the land ". " Where a Tréaty is the law of the land, and as such affects the rights of parties litigating in the United States' Courts, that Treaty is as much to be regarded by the Courts as an Act of Congress": Per Marshall; C. J., in United States y Schooner Peggy, (3). The seventh Article of the Ashburton Treaty of 1842 was construed by one of the United States Appellate Courts in the case of a criminal offence committed on the Canadian side of the Detroit River in 1859; and, quoting the Article, the Court said : " This is no more than the innocent use of the water, without any- surrender of jurisdiction, according to the principles of International Law ; except that the latter (innocent use), being an im- (1) 12 Co. Rep. 65. (2) 3rd. Ed. vol. 1, page 2$1. (3) (1801), 1 Crunch, (U. S.), 110.
190 EXCHEQUER COURT REPORTS. [VOL. XI. 1907 perfect right, was subject, in many respects, to the will THE DUNBAR of the nation in which such channels may be ; and there-DBCo LNG fore, without treaty, might be refused to either. Certainly v. THE SHIF it cannot be claimed that the provision can detract from, MILWAUKEE. in any respect, the entire and exclusive jurisdiction which I J t u ei d w g oni for ment.. each party had, in its own water, over persons there being or passing, any more than if this right of passage had been given to either over the lands of the other." "The right of passage by land ", (referring to the land portages described in Article II, " or water, for commercial purposes, cannot, I think, in any case, be construed as a surrender of jurisdiction. It is too clear to arlmit of any serious doubt. that there is nothing in any of these Articles depriving the i ;ritish Government of that complete and exclusive jurisdiction over that part of the lakes and rivers on her side of the boundary line, which any nation may exercise upon the land within her acknowledge territorial limits" : People y Tyler. (1) The above Court held that it had no jurisdiction to try crimes committed outside its jurisdiction, and within the Canadian waters ; but the Supreme Court of the United States, in 1893, without reversing the above interpretation of the Treaty, held that both American and -Canadian Courts has jurisdiction to try crimes committed within the territorial waters of either country : United States y Rodgers (2). And in the diplomatic discussion respecting the reciprocal fishing privileges to American and Canadian fishermen under the reciprocity Treaty of 1854, the American view was thus stated by Mr Secretary Mercy in 185 13; " By granting the mutual use of their inshore fisheries, neither party has yielded its rights to civic jurisdicti..n over a marine league along its coasts. Its laws are as obligatory upon its citizens, or subjects of the other, as upon its own ". U. S. Foreign Relations, 1880-1, page 572. (1) (1859) 7 Mich. (3 Cooley) p. (2) (1893), 150 U. S. 249. 161 and 233.
VOL. XI.] EXCHEQUER COURT REPORTS. 191 The seventh article of the Ashburton Treaty of 1842 1907 conceding the free navigation through the Canadian THE DLT.Nau. DRED(iIn G water-ways, was never ratified by any Legislative Acts Co. of Great Britain , ( see Imperial Act of 1848 , c. 76) > nor THE " '[ Q -~ HIP of Canada, (see Canada Act of 1849, c. 19) ; nor 'of the M.II.NAUKEE.. United States, (see Act of Congress of 1848, c. 167). Reasons foi- Judgment. These articles of 1842 and 1871, practically confirmed the privileges of free navigation, or innocent passage, as defined by the Roman law : "Riparum usus publicus est juregencium, sicut ipsius fduminis." Dig. 1, 8, 5 pr. And although generally classed as an "imperfect right," Wheaton's International Law says : "It was a right as real as any other right; and where it is to be refused, or to be shackled with regulations not necessary for the peace or safety of the inhabitants, as to render its use impracticable to us (United States), it would then be an injury of which we should be entitled to demand redress." " Nor was the fact of subjecting the use of this right to treaty regulations, as was proposed at Vienna to be done in respect of the navigation of the European rivers, sufficient to prove that the origin of the right was conventional, and not national," (pages 306 and 313). But the supreme authority as to the effect of a treaty on the jurisdiction of British Courts, is that of the Judi-. cial Committee of the Privy Council in the ease of Damodhar Gordhan v. Deoram Kanji (I ), where by a convention, or transfer made by the Indian Government, with the sanction of the Secretary of State for India in Council, of certain British territories in India to a native prince, and a Government Proclamation excluding such territories from the jurisdiction of the British laws and courts, theretofore established within them, it was held that it was beyond the powers of the British Crown, in time of peace, to make any cession of British territory, or to exclude it .from the jurisdiction of the Britidi courts (1) [ 1876] 1 A. C. 332; s. c. 3 Ind. App. 102.
192 EXCHEQUER COURT REPORTS. [VOL. XI 1907 therein, or to substitute for it any other extraordinary THE DuNBAR jurisdiction, without the concurrence of the Imperial DREDGING Co. Parliament. TEE S KIP And this decision conforms to an old maxim affecting MILWAUKEE. the prerogative, which declares that " the king cannot 1=ti ttr grant to any one that he shall not be impleaded ; or, if a man does a trespass to me, that I shall not have an action against him." 16 Viner's Abridgement, p. 561. The cession of Heligoland to Germany, was confirmed by the Imperial Act of 1890, c. 32; and the cession to France of certain British territories in Africa, and the concession of certain fishing privileges in the Newfound-land coast-waters, were confirmed by the Imperial A et of 1904, c. 83, and are parliamentary precedents in support of the judgment of the Judicial Committee of the Privy Council. As supplementary to the general question, it may be proper to quote the words of Sir V. Page Wood, V.C., in General Iron Screw Collier Company v. Shurmanns (1). " If within the territory over which this country has the right to legislate, the legislature has expressly exempted all foreign vessels from the operation of the law, not only would the beneficial effect of the Merchant Shipping Act be' diminished, but British shipping would be positively prejudiced for the benefit of foreigners." And, referring to s. 527 of the Act of 1854, (now s. 688 of the Act of 1894), he said that there is very strong evidence of intention in that section which directs that whenever any foreign ship which has done damage to any British ship, shall come within three miles, the British ship-owner shall be entitled to arrest that vessel, and bring her into harbour to recover the damages that have accrued ; i.e. to arrest her while in motion or "passing off" the coast within the three miles. And in argument . 1r. Hugh Cairns stated that the sections of the (1) [1860] 1 J. & H. 195.
VOL. XI.] EXCHEQUER COURT REPORTS. 193 Merchant Shipping Act he quoted (one being s. 521), 1907 authorized the seizure of foreign ships within three miles THE DUNBAR DREDGING of the coasts," (p. 182). Co. And it may be instructive in seeking for a judicial inter- • THE Salr pretation of the expression " ship is found ", in sec. 688 MILWAUKEE. of the Merchant Shipping Act of 1894, to refer to a case ; , in the Supreme Court of the United States in which that — Court had to deal with the unlawful seizure of an Ameri-can merchant vessel within the territorial jurisdiction of a foreign sovereign power, and the bringing of her within the jurisdiction of a Court of the United States, which seizure was an offence against that foreign sovereign power, could only be adjusted by the political departments of the two governments, but in respect of which the courts of the United States could take no cognizance. The Supreme Court held that it could not connect that international trespass with the subsequent arrest of such vessel, when seized within the jurisdiction of the United States, under the process of one of civil Courts, so as to annul the legal proceedings against the vessel ; , and the condemnation of such vessel by the United States Court was therefore affirmed ; Ship Richmond y United States (1). And as to the expression "person complained of may be ", and "person is found ", in sec. 686, see Regina v Sattler (2), and Ex parte Ker (3). But while courts of justice may be without jurisdiction to investigate and adjudicate upon the unlawful proceedings of outside parties, of officers of ships, in arresting alleged offending ships beyond, or within, the civil or criminal jurisdiction of such courts; or the unlawful abduction or kidnapping of alleged offenders, and by such means bringing such ships or offenders within the locality of the court which has jurisdiction over the, offences charged, it will investigate and declare invalid any unlaw- (1) (1815), 9 Crunch, (U. S.) 102. (2) (185s), 27 L. J. M. C. 50; (3) (1883), 18 Fed. R. 167 13
194 EXCHEQUER COURT REPORTS. [VOL. XI. 1907 ful proceedings committed by any of its officers in the THE DUNBAR execution of ( he process of such court, and so that any PREDOING Co. illegality or violence committed by them under its pro- . THE cess, which would taint and degrade the administration MILWAUKEE. of justice; should be promptly excised from its records, Reasons Judgme f n o t r and disallowed. -- This jurisdiction was illustrated in the case of Borje.'son y Cariberg (t), which was, as stated by the Lord Chancellor, " purely and simply a question of practice ", or in other words, " procedure ". It appeared that under a warrant to arrest a Norwegian vessel, which had improperly broken her previous arrest by sailing on a foreign voyage from Greenock, the mes-senger-at-arms of the court pursued her in a steam tug, with thirty men on board with him, overhauled the ship and compelled her crew to put her about and return to Greenock, where they proceeded to dismantle her. The petition to set aside the arrest, and the judgment thereon, are reported as Carlberq v. Borjesson (2). The President said : " What the messenger did, with the help of 30 men, was to capture the vesel. It is not possible to describe the affair in any other way. She was then brought into the harbor of Greenock as a prize. Such a proceeding on the part of a messenger-at-arms is outrageously illegal ." Lord Deas said, "I greatly doubt if their was any illegality in bringing her back to the harbour, provided there was nothing objectionable in the mode in which that was gone about." And as to her being found within the channel of the river, and within the jurisdiction of the Court, he added : ' • If that be so, it is difficult to see why she might not be brought back from the open river, equally as if she had been seized at the mouth of, or immediately outside, the harbour." But he agreed that the mode of the arrest had been made " uimiously and oppressively." Other (1) (1878), 3 A. C. 1316 and 1322. (2) (1877), 5 Ct. of Sessions Cas., 4th series, 188.
VOL. XI.] EXCHEQUER COURT REPORTS. judges macle observations Which were not applicable judi-cially to the ease, the attention of the members of the court apparently not having been called to the expressions in the Merchant Sh pp ip ~ p g i n ~ g Ac " t : vessel be or passing off that coast, or being in, or near, that bay, channel, lake, river, or other. navigable :water," in s 685; ta~ or "person is found within the jurisdiction of any Court in Her Majesty's Dominions," in s. 685 ; or whenever any injury is done to the property of the Crown, or of a subject, by a foreign ship, arid "that ship is found in any port, or river, of the United Kingdom, or within three _ • miles of the coast thereof," a Judge may issue an order directed to the sheriff to detain the ship ; or where " the ship in respect of which the application is to be made will have departed from the limits of the United Kingdom, or three miles from the coast thereof, the ship may be detained," etc., in s. 688, expressions which would apply to a vessel in motion and sailing on a voyage. Lord Cairns, L. C., declined to commit himself to the opinions expressed by some of the Scotch Judges by saying : " I should be unwilling actually to decide, (it does not seem to me to be necessary to decide), whether the ship having sailed upon her voyage, and being in motion,' it was competent to those who .desired to execute the warrant to go on- board her at all . to serve the warrant . of arrestment there. I rather infer from the language of some of the learned Judges in the Court of Session, that they doubted whether the ship could be served with the arrestment after she had thus commenced her voyage and was in motion. But, be that. as it may, it appears to me, that the very utmost that could be da'ie would be that those who got on board of her might affect the master, whatever might be the consequence of it, with the knowledge that an arrestment was. there, and was served there on board the ship. But I can find no authority whatever which would justify them in turning the ship about and bringing her back into port." 13% 195 1907 THE DUNBAR DREDGING co. i o n n g ~ or lying, TAE 2' ' s fcir MILWAUKEE, i , u .~ d u w ~ e n é o t. r
196 EXCHEQUER COURT RETORTS. [VOL. XI. 1907 Lord Hatherley concurred in part, saying ; "I am THE DUNBAR induced to come to this conclusion in the first instance, DREDGING Co. mainly because this is a question arising upon a point of THE v S . HIP P ractice of the Courts in Scotland, founded upon that MILWAUKEE. extensive knowledge which the Judges must necessarily n J e u aso.. far dgment. possess o th f e p ra ctice of their own Courts." And he added, "It is quite enough for us to say that we are not concluding that question" (turning the ship about and bringing her into port) in any way. There are modes of proceeding against persons who, neglecting,or despising, the orders of the Court, proceed to act contrary to the orders of which they have had notice, through means of a messenger. It may be that the messenger may have the power of nailing the warrant to to the mast, which is one mode of serving the order of arrest, of fixing thereby the person who has charge of the vessel, and who ventures afterwards to remove it upon his own authority, with a heavy responsibility. And there may be means of arriving at justice, if any injustice be done in the course of such procedure." And as to this, see the Petrel (I) and the Nautik, (2) Those observations of the law lords leave the question open, with a leaning towards allowing services of the warrant of arrest upon the offending vessel while in motion and sailing upon her voyage, which apparently might be authorized by the sections of the Act above referred to. But in any event, the question before the Lords was, as stated by them, "purely and simply a question of practice" of the Scottish Courts, and one that might be held to be waved by taking a step in the cause, as the practice decisions governing such questions decide. The rules of this court, as do the rules of the English and Scotch Courts, prescribe the modes by which service of the writ of summons on, and the warrant of arrest (1) (1836) 3 Hagg. Ad. 299. (2) (1895) P. 121.
VOL. XI.] EXCHEQUER COURT REPORTS. 197 of, a ship may be made, (rules 10 and 41), by services 1907 "upon a ship * * * by attaching the writ (or warrant), ruE __UNBAR DREDGING for a-short time to the main mast, or the single mast, Co. or to some other conspicuous part of the ship,. and by Tni Suz leaving a copy of the writ, (or warrant) attached thereto. MILWAUKEE. And by rule 11." If access cannot be obtained to the Reasons for Judgment. property on which it is served, the writ (or warrant) may be served by showing it to any person appearing to be in charge of such property, and by leaving with him a copy of the writ (or warrant) ; "a formality which is as public as could be devised." See the Parlement Belge (1). There can be . no doubt that a vi et armis mode, or a force not sanctioned by law, such as was adopted by the messenger-at-arms and his 30 men in the case before the House of Lords, of capturing the ship "as a prize," and • then dismantling her, was as stated by the Scottish judges, using the process of the court " nimiously and oppressively," and a proceeding that was " outrage- ously illegal." No such vi et armis mode was adopted here. A., the marshall's deputy was admitted, without protest, on board, and he served the ,writ and warrant as prescribed by the rules, and the master of the defend- ant ship submitted, and suggested Callam's Bay in which -he would anchor his ship while under arrest ; and he carried the messenger with him to that bay and voluntarily anchored there until bail was given and his ship released, thereby as I must find submitting himself and the ship to the jurisdiction of this Court. The jurisdiction of the Admiralty Court over the cases of an arrest, or non-arrest, of a ship, was explained by Dr. Lushington in the Volant (2). The damage confers no lien on the ship ; but an arrest offers the greatest security for obtaining substantial justice in furnishing a (1) [1880] 5 P. I). 218. (2) [1862] 1 W. Rob, p. 387.
198 EXCHEQUER COURT REPORTS. (VOL. XI. 1907 security for prompt and immediate payment." But THE DUNBAR where it was found impracticable to arrest the ship, he DREDGING Co. added : " I know of no reason why an action could not be THE S HIP maintained in this Court, although the ship could not be MILWAUKEE. arrested. The jurisdiction of this Court does not depend Jud upon the existence of a ship, but upon the origin of -- the question to be decided, and the locality." " Where there is an appearance to the action, and bail given, as to the bail, the action cannot be extended beyond what they (the owners), who are strangers to the cause, have voluntarily made themselves responsible for." In the Johann Friederich, (1) where both of the colliding vessels were the properties of foreign subjects, and an appear_ ance under protest to the jurisdiction had been entered, Dr. Lushington in commenting on the alleged unusual course adopted by the Courts, thus explained the enalogy between the law of arrest in Admiralty Courts, and the law of Foreign Attachment, in the ordinary Civil Courts ; "But, admitting this to be true, analogous cases exist, as in that of Foreign Attachment, in which the property of foreigners may be attached in order to compel an appearance, or to secure bail to the action. And if such a process is open to the foreigner in that case, it is difficult to understand the ground of disputing the jurisdiction of this Court in this instance" p. 37. Under the law of Foreign Attachment, the right of a plaintiff to attach the goods of his debtor, while in tran-situ, in recognized as part of that law. Thus where goods had been shipped to a factor for sale to liquidate advances which be had made to the shipper, and to hold the balance of such sale subject to the shipper's control, it was held that the factor had acquired no right of property in them, nor could until they actually came into his possession ; and that the plaintiff had the right to attach such goods (1) (1839) 1 W. Rab. 35.
VOL, XI.] , EXCHEQUER COURT REPORTS. 199 while in tra, situ on board a vessel. Bonner v. ]W rsh (1). 1907 Dickman v. Williams, (2) Drake on Attachment (3). THE DUNBAR. ING The defence further objects to the premature issue of D Rco the writ of summons, and of the warrant of arrest, on the TIIVS HIP 25th July 1907, when the defendant ship was not then MILWAUKEE. within Canadian waters, and the jurisdiction of this Court. Reasnons r J And the notice of motion asks for an " Order that the writ of summons, the service thereof, and the warrant to arrest the said ship, and the seizure thereof under the said warrant be set aside". The mode of the service of the writ of summons, and of the seizure of the ship under the warrant of arrest, is stated in the affidavits filed by both parties, and have been quoted above, and also in the oral examination of the Deputy Marshal, Laporte ; and they give fuller details than were disclosed to the Supreme • Court in the D. C. Whitney case. The main objections . to the writ and warrant are based on section 18 of the . Admiralty Act 190G, cap. 141, which provides that: "Any suit may be instituted in any Registry, when the ship or property, the subject of the suit, is at. the time of the institution of the suit, within the district, or division,- of such Registry ". This clause is classed under the title of " procedure" and by virtue of the auxiliary .verb " may" the clause is to be read as permissive, and not as imperative. Interpretation Act, S. 34, sub. 24, "May " means " to have liberty, leave, licence, or permission; to be permitted to be allowed.' .A man may do what the laws permit : "Webster's Die- ' -tionary, see also the observations of Gwynne, J., in Ber-nardin v. Worth Du fferin (I). The clause may also be .c'.assed as " directory :" and as to such, Lord Mansfield, C. J., in Rez. v. Loxdale, (5) said : "there is a known distinction between circumstances which are of the essence (1) (1848) 10 S & M (Miss), .376. (3) (7th Ed.) par. 246. (2) (1874), 50 Miss. 500. (4) (1891) 19 S. C. R. at p. Q18. (5) (1758) 1 Burr. p. 447.
200 EXCHEQUER COURT REPORTS. LVOL. XI. 1907 of a thing required to be done by an Act of Parliament, THE 1)UNBAR and clauses merely directory. The precise time in many DREDGING cases is not of the essence." And in Rex y. Justices of THE Leicester (1) a case where the Quarter Sessions had not San, MILWAUKEE. been held at the statutory time. viz. ; the week after the Reason for 10th October, Lord Tenderden, C. J., held that the Judgment. statute was merely direotory, that Sessions could, notwithstanding the enactment, be legally holden at another time; adopting Lord Hale's dictum in 2 Hale's Pleas of the Crown, p. 30. In Danaher v. Peters, (2) where a statute required that applications for licenses should be considered at a meeting of the municipal council to be held not later than the first day of April in each and every year ; but the Mayor gave notice, and received applications, for licenses on the 26th April,—Patterson, J., said : " I am satisfied that the reference to time in s. 27, (1st April), cannot be properly treated as otherwise than directory, so that, even if the provisions of that section apply to the Mayor of St. John in the sane way as to a Municipal Council, the adjudication of the applications for licenses on the 25th April was good and valid." See further Morgan y. Perry, (3) And further as to this premature issue of process—I may quote what Lord Stowell said in the case of the premature seizure of a ship, which involved weightier consequences : " The seizure was perhaps premature; but shall the Court on that account, —the time for payment having long since arrived,—compel the parties to relinquish these proceedings, seek another jurisdiction, and begin again de novo f What advantage would be derived ? Cui bono, should I occasion so much delay and expense ?',. The Jane. (4) The issue of the writ of summons and of the warrant of al rest are, under the statute, matters of procedure, and_ (1) (1827), 7 B. & C, 12. (3) 055), 17 C. B. 334. (2) (1889), 17 S. C. R., 44. (4) (1814), 1 1) obs. 46 1. ~~~ 1.1
VOL. XL] EXCHEQUER COURT REPORTS. not of jurisdiction, and may be affected by such proceed- ing on the part of the litigant objecting to such matters THE DUNBAK of procedure, as may bring him within the rules as to estoppel or waiver. These terms, though not technically identical, are so nearly allied, and so similar in the results which follow their application, that they are often Used Re indiscriminately. And in this case, the defendant ship, by having voluntarily anchored in Caltam's Bay, and by the owners submitting to the jurisdiction of the Court, (see the .Dundee, 1 Hagg. Ad. p. 110) by giving a bond, without any reservation or protest, in which their sureties "jointly and severally submit themselves to the jurisdic- tion of the said Court," and consent if, the owners make default, that execution may issue against them ; and obtain thereby a release of their ship, have waived any irregu- larity in the procedure, affecting the issues of the writ and warrant. The bond now represents the ship, and.the giving of it, after appearance under protest; with the special conditions above cited, was a step in the cause. Chitty's Archbold Vol. 2 p. 1399, says ; " If any necessary proceedings on the part of the plaintiff be not had. within the time limited for it, or be had before the time appointed for it, by the practice of the Court, it may be set aside for - irregularity. " If the party complains of- an irregu larity, take a fresh step in the action, after acknow ledge of it, he cannot apply to set aside the irregular pro_ ceeding, or otherwise take advantage of it. Therefore by entering an appearance the defendant waives any irregu- larity in the process. So, by pleading, the defendant waives any irregularity in the declaration.". Ibid. p. 1402. In this case after entering an appearance under protest," and instead of promptly moving against the alleged irregularity, the defendant shipowners, ten days afterwards, took a step in the cause by giving the bond, with the condition of submission to the jurisdiction of the Court as above specified, they by first reprobating, and 201 1907 vlico `Na THE S uer MILWAUKEE. J a u s d o m ns e g n fo t. r -- -
202 EXCHEQUER COURT REPORTS. [VOL. XI. 1907 then approbating, the jurisdiction, must be held to be THE DUNBAR estopped from now impeaching its jurisdiction. vx co INr The Canadian cases which may be referred to on v. this point are Racey v. Carman (1), where Robinson, C. J. THE SHIP MILWAUKEE. held that where an affidavit to hold to ball was irregular, 7tenwous fur but the defendant put in special bail, be thereby waived Judgment. the irregularity. See further Herr v. Douglas (2), and Smith v. Smith (3). So in the United States, where defendants, on being arrested, offered bail to the plaintiff's attorney, and induced him to examine and accept the bail, by which means the defendants procured their release, this was held to be an act on the part of the defendants which assumed that it was proper to require bail of them, amounted to a waiver of any objection of their having been held to bail; Dale v. Radcli f ( I ). And in Bremer v. Atkins (5), a case from a Colonial Vice-Admiralty Court, it was said : "The security given in Admiralty is no more than an undertaking to submit to the directions of the Court " " Operating therefore as a stipulation, execution of it belongs to that court, and that jurisdiction to which the parties have agreed to submit" ; (p. 189) see also note (a) 3 Hagg. Ad. 431. I find, therefore, that the giving of a bond, in which the sureties, on behalf of the owners of the defendant ship, submit themselves to the jurisdiction of the Court, and consent as therein set forth, (form No. 17) ; and which, being given after the appearance under protest, was a step in the cause, and thereby a waiver of the protest. Besides, the other facts proved and proceedings in this case, and the law applicable to them as detailed above, show clearly marked distinctions between it and the D. C. Whitney Case (6) ; and I must therefore hold that this (1) [1857] 3 U. C. L. J. 207. (4) [I 857] 25 Barb. (N.Y.) 333. (2) 4 Ont. P. R. 102. (5) [1789] 1 H. Black, 164. (3) [186S] Ibid. 354. (6) 38 S. C. R. 303.
VOL. XI.] EXCHEQUER COURT REPORTS. • Court has jurisdiction to adjudicate upon the questions at issue between the parties, and that the motion to set aside the writ of summons, the warrant to arrest the ship, and the seizurè thereof tinder the said warrant, should be dismissed with costs in the' cause to the plaintiffs in any event. Franklin A. Hough (Amherstburg) : Solicitor for plaintiff. Clark, Bartlett & .Bartlett (Windsor) : Solicitors for 203 l o7 J THE DUNBA. ING D Co THE SHIP MILWAUKEE. ReR Hone for J • defendant.
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.