1859. July 14. to our colonies. I considered so from the beginning, from the matters stated in it, and the preliminary matter; and there is but one exception that I am aware of that prevents the whole of it extending to the colonies, the proviso at the end of the Act, and this appears to me to be the strongest possible recognition of the applicability of the other part to our colonies. The 547th section enacts, that "The legislative authority of any British possession shall have power, by any Act or ordinance, confirmed by her Majesty in Council, to repeal, wholly or in part, any provision of this Act relating to ships registered in such possession; but no such Act or ordinance shall take effect until such approval has been proclaimed in such possession, or until such time thereafter as may be fixed by such Act or ordinance for the purpose." This is the only part that I am aware of which can be found which confers upon the legislative authority of any British possession the power of altering or curtailing any part of the provisions of the statute. It would be impossible to construe this Act without supposing it extended to our colonies, for otherwise there are provisions applying to them, which would not confer the benefit the statute was intended to do, but would produce utter confusion and discord. I have no doubt whatever, therefore, about the jurisdiction upon the present occasion. But now it has been contended that the section I have read, is rendered inoperative on the present occasion by virtue of the 209th section, which has been cited by her Majesty's Advocate, and also commented upon by Dr. Twiss. I am of opinion that when the two sections are read and duly considered, it will appear that the 209th section only applies to very different circumstances there mentioned, and in no degree alters the 191st section. The The 209th 209th section enacts, that "Every master of any British ship section does who leaves any seaman or apprentice on shore at any place not affect the right of the abroad, in or out of her Majesty's dominions, under a certificate master; it is of his unfitness or inability to proceed on the voyage, shall deonly an additional provision liver to one of the functionaries aforesaid, or (in the absence of such functionaries) to the merchants by whom such certificate is signed, or if there be but one respectable merchant resident at such place, to him, a full and true account of the wages due to such seaman or apprentice, such account, when delivered to a Consular officer, to be in duplicate, and shall pay the same either in money or by a bill drawn upon the owner," and so forth. What is this but an additional provision? So far from its being a provision in the nature of curtailing the enactment, and taking away from the seaman the rights he is intitled to by law and statute, this is a provision to prevent a seaman from being left desolate abroad—whether in British dominions or a in favour of the seaman. foreign State. I am of opinion that all the other remedies are left untouched. Now unless there be laches which prevents a master from suing, or unless there be something of a peculiar character which amounts in equity to a defeasance of his demands, he has a lien attachable to the last plank of the ship, for, by virtue of this enactment, a master stands in the same place as a seaman. 1859. July 14. Then was not the master, being at Mauritius, and compelled by necessity to quit the ship, intitled then to claim for wages? As to the quantum of wages, I will discuss that presently. I am of opinion that he had such a right by virtue of the enactment I have read. He had a right, if he had thought fit, to arrest this ship, not by the law of Mauritius, for that we have nothing to do with-I mean the municipal law-but by the law of the Admiralty Court, which entertains cases of this description. For even if it had been proved entirely to my satisfaction that, by the law of Mauritius, the master could not have arrested this ship there for his wages, I should have disregarded that law, and said, I must administer the law according to the statute, and have given the master his remedy. I think that, under circumstances of such pressing The master, necessity, the master was intitled to sue for his wages. broken a blood vessel, and it was necessary for him to come to pressing England, and take a passage overland, to save his life. course there needed as much expedition as was possible, and Court must consider whether there was a necessity for him to have his wages at that time. I am of opinion that his wages were necessary then, and that he was justified in making the demand; and I am further of opinion that, if he had been refused, he would have been justified in arresting the ship. It does not appear that the owner of the ship was unable at any time to get written instructions to the master, or that he told him whether he had any agent at Mauritius who was justified in advancing money for the necessities of the ship. He had being compelled by necessity to Of leave the ship abroad, was inimmediately. the titled to wages tum of wages. The next point is as to the fair quantum of wages. Very great As to the quandifficulty arises in laying down any positive rule or regulation upon the subject of bottomry bonds, and for obvious reasons. In the first place, the Court must be anxious to protect a bonâ fide bottomry bondholder from loss under circumstances which he could not foresee and had no power to investigate; and the Court must be anxious so to do, not simply for the purpose of protecting an innocent person from wrong, but for another great and important reason that no doubt may be thrown upon these 1859. July 14. bottomry bonds, which at times and seasons have been the means of salvation to many valuable ships and cargoes. Bottomry bonds Lord Stowell held up with a high hand, and a higher hand perhaps than I have thought myself justified in doing upon similar occasions; but I have had the misfortune of seeing how very delicate, if I may use the term, persons are in taking bottomry bonds. I recollect a case which was carried up to the Judicial Committee, the Bonaparte (a), in which their Lordships were not satisfied with the communication between the master and the owners of the cargo. The case was investigated and all the facts gone into, and their Lordships finally affirmed my judgment. The consequence has been this, that, to my knowledge, in that part of the world there has not been a single bottomry bond given since, nor money advanced. I am cognizant that there are cases in which the Court must overrule bonds taken bonâ fide as contrary to law. If there was any case where it was perfectly manifest to the conviction of the Court that there were any items contrary to law included in a bottomry bond, of course the Court would disallow those items, because it is the duty of the Court to protect the owner of the ship and the owner of the cargo, as well as the bottomry bondholder; and we all know that bottomry bonds are attended with the additional expense of maritime risk. The Registrar and merchants have considered what amount was due to the master, and they have made this statement. They have said, first, that the captain was justified, on account of the state of his health, in giving up the command of the ship at Mauritius, for the purpose of returning to this country by the overland route, and that he was consequently intitled to claim for his wages. They give no opinion as to whether the two items which, it is admitted, were paid to the master at Mauritius, do or do not exceed the amount then legally due to him, and they consider that no blame attaches in regard to the payment thereof by Messrs. Arnal. Now, I have all the papers before me, and I have had the benefit of a very able and learned discussion on both sides, and I must say that I can come to no conclusion whether the wages were due to the master or not. The owner has I must say I never saw an instance of greater neglect, or a greater disregard to correctness in doing business, than is exhibited on the part of the owner of this ship, according to his own statement. When representations were made to him. from time to time that the master required an increase of therefore must wages, he never inquired the extent of wages the master wanted.. Upon one occasion he contents himself with giving no answer failed to show that the quan tum of wages paid to the master was im proper; and the full sum be allowed. (a) 8 Moore, P. C. 439. 1859. July 14. at all, and the second time he gives an evasive reply. It may be said with truth that Messrs. Wiebe & Co. were not the agents of the owners appointed by them, but were appointed by the master; but it was their duty to take care how they acted; and I must presume they did not violate their duty. I must say that if owners of ships will leave their masters in this state of doubt with regard to bottomry bonds, and will not appoint agents themselves, the masters must appoint them, though perhaps they will not discharge their duty with the same caution, fidelity and care that they should do. What were Messrs. Wiebe & Co. to do? If the wages were justly due, how were they to ascertain it? But is the amount, considerable as it is, an exorbitant amount, and did it appear so to the Registrar and merchants? Sure I am that if it had so appeared to the Registrar and merchants, independent of all engagements and arrangements, they would not have allowed it. I must say I think if the owner on the present occasion has more to pay than he ought to pay, he has brought it all upon himself. He has left the matter in so much doubt that I think it difficult to say what was the amount of wages due to the master. I do not think it necessary to comment upon the cases that have been cited at the bar, for I do not believe they would in any degree alter the opinion that I have already expressed, or vary the reasons I have now declared. Looking at all the circumstances of this case, and regretting exceedingly that the matter should ever have come before the Court-though I admit it to be one of great importance, and demanding great consideration-I am of opinion Report conthat I must confirm the report of the Registrar and merchants, and with costs. firmed with costs. 1859. July 19. In the Privy Council. Present-The Right Hon. Lord KINGSDOWN. The Right Hon. Sir CRESSWELL CRESSWELL. THE AUSTRALIA. Possession-Sale of Ship by Master abroad-Second Purchaser -Onus Probandi-Laches of Original Owner-8 & 9 Vict. c. 89, ss. 37, 38-Jurisdiction of Vice-Admiralty Courts abroad-Sequestration under 7 & 8 Vict. c. 65, s. 12. If a ship, being in a foreign port, cannot be sent upon her voyage without repairs, and the repairs cannot be done except at so great and so certain a loss that no prudent man would venture to encounter it, this constitutes a case of necessity, justifying a sale of the ship by the master. The first purchaser of the master is bound to prove such necessity; but whether An omission by the first purchaser to comply with the Ship Registry Act (8 & 9 A person surveying a ship, with a view to the sale thereof by the master, may be The owner of a ship, dissatisfied with the sale of his ship by the master abroad, must seek recovery with the utmost possible promptitude, or he may be held to ratify the sale by acquiescence. Vice-Admiralty Courts abroad have only the ordinary jurisdiction exercised by the Upon disobedience to a monition to pay costs, sequestration granted under 7 & 8 THIS HIS was a cause of possession appealed from the Vice- The claimant in the Court below was Silas Burrows, of St. Francisco, California; the defendants (in possession) were Douglas Lapraik and George Chape. In April, 1852, the vessel, then called the Rob Roy, an American-built ship, was purchased at St. Francisco by Burrows, and there registered as his property, and chartered for a voyage to Hong Kong and elsewhere. The ship arrived at Hong Kong in June, 1852, and shortly afterwards sprung a leak. She was thereupon surveyed twice; one of the surveyors being John Lamont, a shipwright, and tenders for repairs sent in. After two other surveys the master, finding the cost of repairs would much exceed the value of the ship when |