§ 332. “Of Admiralty and Maritime Jurisdiction.”

Secs. 2 and 3 of the (Imperial) Colonial Courts of Admiralty Act, 1890 (53 and 54 Vic. c. 27) contain the following provisions:—

  • 2. (1) Every court of law in a British possession which is for the time being declared in pursuance of this Act to be a court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty.…
  • (2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, 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.
  • (3) Subject to the provisions of this Act, any enactment referring to a Vice-Admiralty Court, which is contained in an Act of the Imperial Parliament or in a Colonial law, shall apply to a Colonial Court of Admiralty, and be read as if the expression “Colonial Court of Admiralty” were therein substituted for “Vice-Admiralty Court,” or for other expressions respectively referring to such Vice-Admiralty Courts or the judge thereof, and the Colonial Court of Admiralty shall have jurisdiction accordingly; provided as follows:—
    • (a) Any enactment in an Act of the Imperial Parliament referring to the Admiralty jurisdiction of the High Court in England, when applied to a Colonial Court of Admiralty in a British possession, shall be read as if the name of that possession were therein substituted for England and Wales; and
    • (b) A Colonial Court of Admiralty shall have under the Naval Prize Act, 1864, and under the Slave Trade Act, 1873, and any enactment relating to prize or the slave trade, the jurisdiction thereby conferred on a Vice-Admiralty Court, and not the jurisdiction thereby conferred exclusively on the High Court of Admiralty or the High Court of Justice; but, unless for the time being duly authorized, shall not by virtue of this Act exercise any jurisdiction under the Naval Prize Act, 1864, or otherwise in relation to prize; and
    • (c) A Colonial Court of Admiralty shall not have jurisdiction under this Act to try or punish a person for an offence which, according to the law of England, is punishable on indictment; and

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    • (d A Colonial Court of Admiralty shall not have any greater jurisdiction in relation to the laws and regulations relating to Her Majesty's Navy at sea, or under any Act providing for the discipline of Her Majesty's Navy, than may be from time to time conferred on such court by Order-in-Council.
  • (4) Where a court in a British possession exercises in respect of matters arising outside the body of a county or other like part of a British possession any jurisdiction exercisable under this Act, that jurisdiction shall be deemed to be exercised under this Act and not otherwise.

3. The legislature of a British possession may by any Colonial law

  • (a) declare any court of unlimited civil jurisdiction, whether original or appellate, in that possession to be a Colonial Court of Admiralty, and provide for the exercise by such court of its jurisdiction under this Act, and limit territorially, or otherwise, the extent of such jurisdiction; and
  • (b) confer upon any inferior or subordinate court in that possession such partial or limited Admiralty jurisdiction under such regulations and with such appeal (if any) as may seem fit. Provided that any such Colonial law shall not confer any jurisdiction which is not by this Act conferred upon a Colonial Court of Admiralty.

By s. 15 the expression “unlimited civil jurisdiction” is defined as meaning “civil jurisdiction unlimited as to the value of the subject matter at issue, or as to the amount that may be claimed or recovered.”

By s. 16 it was provided that the Act should not come into force in New South Wales and Victoria until Her Majesty should so direct by Order-in-Council—which has not been done with respect to either colony. With these exceptions (and others which do not affect Australia) it was to come into force in “every British possession” on 1st July, 1891.

Accordingly, in New South Wales and Victoria there is still a Vice-Admiralty jurisdiction exercised by Imperial Courts under the Vice-Admiralty Courts Act, 1863 (26 and 27 Vic. c. 24), and the Vice-Admiralty Courts Act Amendment Act, 1867 (30 and 31 Vic. c. 45). For the history and extent of this jurisdiction see Webb, Imperial Law in Vic., p. 68. In every other Australian colony the Colonial Courts of Admiralty Act, 1890, has superseded and repealed the Vice-Admiralty Acts, and the Supreme Court of the colony is a Colonial Court of Admiralty accordingly. It remains to discuss the combined effect of this Constitution and of the Colonial Courts of Admiralty Act, 1890— both being Imperial statutes — on the jurisdiction of the States and of the Commonwealth in Admiralty matters.

JURISDICTION OF COURTS IN STATES.—Until the Federal Parliament legislates under this section, the sole original jurisdiction in admiralty matters will rest with the Courts of Admiralty or Vice-Admiralty, as the case may be, in the several States. It seems clear that the constitution of those courts is not in any way affected by the establishment of the Commonwealth. The Constitution of each State, and the laws in force in each State, continue, subject to this Constitution (secs. 106, 108); and the identity of each State as a “British possession” remains unchanged notwithstanding the establishment of the Commonwealth.

“The object of the (British North America) Act was neither to weld the Provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy.” (Per Lord Watson, delivering judgment of the Privy Council, Liquidators of Maritime Bank of Canada v. Receiver-General of New Brunswick (1892), App. Ca. at p. 441.) It seems clear that the above-mentioned Imperial Acts relating to Vice-Admiralty and Admiralty Courts continue to apply to the States individually, and that the existing Admiralty and Vice-Admiralty Courts may exercise the same jurisdiction as before. But the provisions of those Acts, so far as

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they apply to colonies which become States of the Commonwealth, are in some respects over-ridden by the words of the Constitution.

In those States where, under the Colonial Courts of Admiralty Act, 1890, the Supreme Courts have an Admiralty jurisdiction, that jurisdiction is clearly subject to the provisions as to appeal contained in this Constitution, and the provisions as to appeal contained in the Colonial Courts of Admiralty Act are superseded and impliedly repealed with respect to such States. Moreover, the Admiralty jurisdiction of the Supreme Courts of the States is subject to sec. 77 of the Constitution; so that the Federal Parliament may, after investing the federal courts with such jurisdiction, make that jurisdiction to any extent exclusive, and thereby to a corresponding extent deprive the State courts of jurisdiction.

With respect to the Vice-Admiralty Courts at present established in New South Wales and Victoria, the application of sections 73 and 77 is more difficult. Does an appeal lie from these Vice-Admiralty Courts to the High Courts, and can the Federal Parliament, under sec. 77, deprive these Courts of any part of their jurisdiction? The answer to these questions depends on the question whether these courts are included in the expressions “any other court of any State” in sec. 73, and “the courts of the States” in sec. 77. Now it does not seem that either of these Vice-Admiralty Courts can, without an undue stretching of the words, be called a Court “of a State.” “The Vice-Admiralty Court is an Imperial Court, established by Commission of the Admiralty. The jurisdiction exercisable by it is an Imperial one, and is altogether independent of that of the Supreme Court and of a different nature—and it is not competent for the local legislature to deal either with the extent thereof or the practice and procedure observed therein.” (Webb, Imperial Law in Vic., p. 68; Vice-Admiralty Courts Amendment Act, 1867 [Imp.], s. 16.) In short it would seem that the Vice-Admiralty Courts is an Imperial Court “in” a State, and not, in any strict sense of the word, a court “of” a State; and therefore that there is nothing in sec. 73 to give the High Court an appellate jurisdiction. The same reasoning would apply to exclude the Vice-Admiralty Courts from liability to have their jurisdiction cut down under sec. 77. This construction is strengthened by the general presumption against ousting existing jurisdiction, or creating new jurisdictions. (See Maxwell, Interpr. of Statutes, Chap. V.) The difficulty, of course, may be removed at any time by the issue of Orders in Council, under the Imperial Act of 1890, directing the Act to be in force in New South Wales and Victoria, and thus superseding the Vice-Admiralty Courts altogether. On this question the case of Attorney-General of Canada v. Flint, 3 S.C. (Nova Scotia) 453; 16 S.C.R. (Can.) 707, and cited in Wheeler, Confed. Law of Canada, pp. 68–9, is instructive. A Dominion law, conferring jurisdiction on the Vice-Admiralty Court of Nova Scotia in prosecutions for certain penalties incurred under the Inland Revenue Act, was held to be constitutional. Henry, J., said (16 S.C.R. [Can.] p. 713):—

“Although the Vice-Admiralty Court is established by the authority of England, still I see nothing to prevent the Parliament of Canada, inasmuch as that Court sits within the jurisdiction of that Parliament, to give it power and authority to try Inland Revenue cases or cases connected with the customs. I would say, however, I do not think that Court could be obliged to perform such duty, and that it is a Court that could very well wrap itself up in its authority and say, ‘Our other duties prevent us from assuming the functions assigned to us by the Parliament of Canada;’ but it is ready to adopt the duty, and I see no reason why the Parliament of Canada should not have the power to impose it.”

ORIGINAL JURISDICTION OF HIGH COURT.—The question next arises whether, in conferring original jurisdiction on the High Court, the Parliament is limited by the provisions of the Colonial Courts of Admiralty Act, 1890. Sec. 3 of that Act (cited above) empowers the Legislature of a British possession to “declare any court of unlimited civil jurisdiction, whether original or appellate, in that possession to be a Colonial Court of Admiralty.” Under this provision, the Dominion Parliament in Canada has passed an Act (54 and 55 Vic. c. 29) declaring the Exchequer Court of Canada to be a “Colonial Court of Admiralty.”

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Under this Constitution, however, the Parliament has power, independently of the Colonial Courts of Admiralty Act, to confer Admiralty and maritime jurisdiction on the High Court; and it seems clear that the limitations imposed by that Act on the jurisdiction of “Colonial Courts of Admiralty” within the meaning of that Act, and upon colonial Parliaments legislating under the powers conferred by that Act, cannot be read into the plenary powers conferred by this section. Nevertheless, whatever may be the legal powers of the Commonwealth, it would probably be inexpedient, in conferring Admiralty jurisdiction on the High Court or other courts of federal jurisdiction, to go outside the limits defined by that Act, which may be taken as a guide to the reasonable limits of the jurisdiction.

EXTENT OF JURISDICTION.—For the extent of the Admiralty jurisdiction in England, see Story, Comm. §§ 1663–73; Kent, Comm. i. 304, 354–80.

“The jurisdiction claimed by the Courts of Admiralty, as properly belonging to them, extends to all acts and torts done upon the high seas, and within the ebb and flow of the sea, and to all maritime contracts, that is, to all contracts touching trade, navigation, or business upon the sea, or the waters of the sea, within the ebb and flow of the tide. Some part of this jurisdiction has been matter of heated controversy between the courts of common law and the High Court of Admiralty in England, with alternate success and defeat. But much of it has been gradually yielded to the latter, in consideration of its public convenience, if not its paramount necessity.… The Admiralty and maritime jurisdiction (and the word ‘maritime’ was, doubtless, added to guard against the narrow interpretation of the preceding word ‘Admiralty’) conferred by the Constitution, embraces two great classes of cases—one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries done upon the high sea, where all nations claim a common right and common jurisdiction; or acts and injuries done upon the coast of the sea; or, at furthest, acts and injuries done within the ebb and flow of the tide. The second respects contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches—one embracing captures, and questions of prize arising jure belli; the other embracing acts, torts, and injuries strictly of civil cognizance, independent of belligerent operations.” (Story, Comm. §§ 1665–6.)

In the United States, it has been held that the grant in the Constitution is neither to be limited to or interpreted by what were cases of Admiralty jurisdiction in England when the Constitution was adopted, but extends the powers so as to cover every expansion of such jurisdiction. (Waring v. Clarke, 5 How. 441.)

All the navigable waters of the Atlantic coast which empty into the sea, or into bays and gulfs that form a part of the sea, are as much within the admiralty and maritime jurisdiction of the United States as is the sea itself. (Transportation Co. v. Fitzhugh, 1 Black, 574.) The jurisdiction is not confined to tide waters, but extends to all lakes and rivers where commerce is carried on between States or with foreign nations. (The Genessee Chief v. Fitzhugh, 12 How. 443.) All previous decisions limiting the Admiralty jurisdiction to tide waters are overruled, and the broad doctrine is announced that jurisdiction as conferred by the Constitution exists wherever ships float and navigation successfully aids commerce, whether internal or external. (The Hine v. Trevor, 4 Wall. 555.)

For other American cases on the Admiralty and maritime jurisdiction, see Baker, Annot. Const. pp. 124–6; also Commentaries of Story and Kent, passages cited above.