The Maritime History of the Great Lakes
Daily News (Kingston, ON), Sept. 26, 1865


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p.2 AN ADMIRALTY COURT

(from U.C. Law Journal)

And why not an Admiralty Court or Vice Admiralty Court in Upper Canada, as well as in any other country upon the border of a sea! For are not our lakes, as we modestly call them, in point of fact, great inland seas - not salt water, certainly, but none the worse for that as far as all practical purposes which water as a carrying medium can be put to. The commerce of our lakes is probably much greater than was that of the British seas when admiralty courts were first heard of in England. And if the mercantile marine required a court for its own exclusive use and necessities then and there, why not also now and here.

Again, these lakes are, in fact, what are termed "high seas." They are the common highway for the use of two nations - nations pre-eminent as the greatest maritime powers of the world. It is true that there are at present but two nations upon the borders of these seas, but just as important points of international law may arise between two as twenty, and the events of the last few years tend to show how quickly a third or even a fourth power may start into existence and become interested in the questions of maritime and international law that have arisen and will yet and more frequently arise between us and our neighbors.

The use and operation of admiralty law, as we understand it, are twofold. In the first place, in determining matters of difference arising upon our "high seas" between subjects of different nations (principally at present between the United States of America and Upper Canada as an integral part of the British empire), upon the generally well-understood principles of admiralty law, as founded upon the customs and practice which are received and prevail between nations in general for the mutual benefit and protection of their subjects, with a due regard to the rights and liberties of all, and upon treaties which two or more nations enter into to determine some particular question or dispute, or to provide for some reciprocal rights or immunities. In the second place they have a municipal jurisdiction to decide maritime questions as between the people of the country in which the courts are established.

As regards the former, statute law would avail nothing, as one country cannot make a statute that can bind another. Nothing but international law could be resorted to in such cases; but as to the latter it is of course competent for a nation to make any regulations for its own governance which may be considered expedient.

Admiralty law is as well understood where there is any court to administer it as any other law. If such a court were organized here, there would, we apprehend, be no practical difficulties that a little care and research could not surmount; being new to us it might not work very smoothly at first, but that is the case with all kinds of new machinery. It is not law we want provided, but a court to administer the law already made to our hands. The position in this respect seems very similar to that of equity in this country before the Court of Chancery was established; the principles of equity were acknowledged and understood, but there was no machinery to put those principles into practice.

Admiralty courts are two-fold, the Prize Court and the Instance Court - the former for trying what is or is not lawful prize, and for adjudicating upon all matters of prize, whether civil or criminal - prize being understood to mean every acquisition made jure belli, of a maritime character. With this, we have nothing, at all events at present, to do. What we want is something that will be practically useful in correcting and remedying a great many anomolies, abuses and defects that injuriously affect our mercantile marine.

We want something that will put our shipowners and mariners on a par with our enterprising and "go-ahead" neighbors. They long ago saw the advantage of tribunals for protecting their own interests in this respect, and made provision accordingly. The consequence of their having stringent laws and we none at all is most injurious to us, and many are the stories that have been told of the oppression practiced upon Canadian masters and owners by unscrupulous officials on the other side. This may have been partly owing to their ignorance of admiralty law, but even this is an argument for our having such law administered on this side of the water. They have it now all their own way, and whilst they can in case of debts contracted for a Canadian vessel, or of collision, salvage, etc., where a Canadian vessel is concerned, tow her into an American port, and keep her there till the demands of the claimants or injured parties, or the salvors, are satisfied, or until bonds are given for the payment of all claims that may be established against her, a Canadian master has no help for it, and has not even the satisfaction of knowing that the same justice can be meted out to American ships. This bonding, moreover, is very often a troublesome business in a foreign port, miles away perhaps from the owner, who may not even under the most favorable circumstances have sufficient means or credit to furnish the security that will be accepted, and the effect of this often is that the most exhorbitant and outrageous demands have to be paid. A few parallel cases under similar laws on our side would have a wonderful effect in setting matters to right; no man is so likely to be bullied as one that is incapable of taking his own part.

The benefits, however, would not end here. Those that would accrue in disputes or claims as between ourselves in matters nautical would be very great. Let us take a few cases for examples. Courts of common law proceed in personam, Admiralty Courts in rem. The former can decide questions of contract express or implied, but the latter can do more, they can apportion a loss on equitable principles, proceeding more after the manner of the Court of Chancery. Suppose a case of collision. One, or it may be both the vessels are "libelled," and the executive officer takes possession until bonds are given. The proceedings in such case being very similar to the execution of a writ of replevin by a sheriff. The court hears the evidence, and, what is more, understands it. It then apportions the loss and orders such and such repairs to be made, or that such a sum shall be paid in lieu thereof.

Salvage, again, is a difficult subject for Courts of Common Law to deal with. Canadians are not wanting in daring or heroism, when the occasion for their exercise arises, but would it not be a great inducement to any man to know that his attempts to save a vessel in jeopardy would be likely to meet not only with a careful investigation but a liberal reward, commensurate with the risk and toil of his self-imposed task, and the skill with which he may carry it out, instead of having to bring an action upon a doubtful contract or no contract at all, to be tried before a judge unversed in nautical matters, and a jury probably quite incapable of appreciating his services. Besides, perhaps, by the time he gets a verdict the owner of the vessel may be insolvent, and the vessel perhaps at the bottom of the lake.

So again with sailors' wages. Seamen are proverbially improvident, and would generally sooner dance a hornpipe on the main truck in a gale of wind than to go to a lawyer to enter a suit against the owner or master. Every facility should be given them to recover the amount of their hardly-earned wages. They can understand and appreciate stopping the vessel till their wages are paid. This is to them the orthodox nautical way of solving the difficulty, and they are right enough in thinking so.

There should also be some menns of enforcing a contract for necessary repairs done to a vessel, so as to afford due protection to all parties. And these and other contracts purely marine, such, for instance, as agreements as to sailors' wages, can only be satisfactorily determined by an Admiralty Court.

The difficulty of obtaining any satisfactory verdict from an ordinary jury has been alluded to. We venture to say, that in nearly every case which involves purely nautical questions, the jury know just about as much of the case when they have given their verdict as they did when it was first opened, perhaps a little less. How can they possibly in the course of a few hours appreciate all the nice little manoeuvres and manipulations that constitute "seamanship." They may know what wearing a coat is, but "wearing" a ship is to them a ridiculous absurdity; they will understand but too well what "paying out" is in a financial sense, but "paying out" a hawser would be to them an unfathomable mystery; why, to them, the "helm" should, in case of emergency be sometimes "put up" and sometimes "jammed down," or "hard-a-weather" or "hard up," would rather bother them. A "dolphin striker" would suggest thoughts of spermaceti candles; and "flying kites" anything probably sooner than the advisability of getting the cat to stratch the mast. In Upper Canada we are fortunate in having one judge capable of arriving at a sound decision from purely technical evidence, but that does not help the jury, unless they have sense enough to find a verdict according to the directions from the bench, if any are given. And as to the counsel, they generally appear to be in the same hopeless maze as the jury.

The constitution of an Admiralty Court would obviate all these difficulties. The judge, who of course must be a lawyer, and if conversant with nautical matters so much the better, at all events he would soon pick up a good general idea of them, would be assisted by the advice of a certain number of "assessors," as they are called in England, or men thoroughly acquainted with the sea and ships, generally old sea captains. The executive officer or marshall would be as it were the sheriff of the court. A clerk or registrar would also be required, but these, with the exception of occasional deputy marshalls or bailiffs, (custom house officers in distant ports might be commissioned to act for marshal,) would be all.

Very little difficulty would be found in organizing such a court, and a consideration of the subject leads us decidedly to the conclusion that it must be a distinct court, complete in itself. No patching or tinkering, or, after the manner of legislators of the present day, giving "jurisdiction in the premises" to such and such a court or such a judge, will be sufficient. No sane man will say that our judges have not enough to do. Let us divide the labor, giving to each their own particular department, and the slight extra cost will more than be repaid by the benefits that will accrue from the protection that will be afforded to our shipping interests.

There is an Admiralty Court in Lower Canada, presided over by a very able judge. Its jurisdiction is said to extend as far west as Three Rivers, but no farther. There is no tide west of that place. But the existence of tide has, we fancy, as little to do with the necessity for an Admiralty Court as the existence of salt. The boundary strikes us as not only arbitrary, but absurd and illogical.

An Admiralty Court or a Vice-Admiralty Court, or some other tribunal with similar powers, let it be called what it may, we in Upper Canada must have sooner or later. The sooner, we think, the better. Let those that make our laws take the hint.

p.3 Imports - 25,26.

Vessels To And From Canadian Ports Passing Through The Welland Canal - 25th.


Media Type:
Text
Newspaper
Item Type:
Clippings
Date of Original:
Sept. 26, 1865
Local identifier:
KN.24684
Language of Item:
English
Donor:
Rick Neilson
Copyright Statement:
Public domain: Copyright has expired according to the applicable Canadian or American laws. No restrictions on use.
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Daily News (Kingston, ON), Sept. 26, 1865