enable him to carry on the voyage, and pledges the keel or bottom of the ship as a security for its repayment; and it is understood that if the ship be lost the lender also loses his whole money; but if it return in safety then he shall receive back his principal, and also the premium or interest stipulated to be paid, however it may exceed the usual or legal rate of interest." Park on Marine Insurance (5 ed.) 410. As to the distinction between bottomry and respondentia, the same writer "In this consays: sists the difference between bottomry and respondentia; that the one is a loan upon the ship, the other upon the goods: in the former the ship and tackle are liable, as well as the person of the borrower in the latter, for the most part, recourse must be had to the person of the borrower" (ibid). In Maclachlan on Shipping (ed. of 1892), p. 512, bottomry is said to be "an agreement entered into by the owner of a ship, or his agent, whereby, in consideration of a sum of money advanced for the use of the ship, the borrower undertakes to repay the same, with interest, if the ship terminate her Voyage successfully, and binds or hypothecates the ship for the performance of his contract. The contract, which must be in writing, by which this hypothecation is effected, is sometimes in the shape of a deed poll, and is then 1879 THE called a bottomry bill; sometimes in that of a bond. Whatever be its form, the contract ELYSIA A. should be clearly set out in it. The essence of the contract is that there should be a maritime risk to be ascertained from the writing." And again, on p. 513: "If ship, freight, and cargo are hypothecated, the contract is bottomry; when cargo only is hypothecated the contract is respondentia." Such a bond cannot be given for a debt incurred on a former voyage. The Hero, 2 Dods 147, and if the money was advanced, or the indebtedness incurred on personal credit, a bottomry bond could not afterwards be given to cover the advance. The Augusta, 1 Dods 283. Where it is practicable to communicate with the owner, his consent must first be obtained. The Oriental, 7 Moo. P. C. 408; The Olivier, Lush. 484, and such communication must state not only necessity for expenditure, but also the necessity for hypothecation. Kleinwort in Cassa Marrittima of Genoa, 2 App. Cas. 156. Dr. Lushington says: "It is not competent to the master, with the consent of the owner, to grant a valid bottomry bond upon a British ship lying in a British port for a new voyage." The Royal Arch, Swa. at p. 276. It would be otherwise, however, if the ship were in in a foreign port. The ports of the Dominion of Canada are 1879 THE home ports so far as bottomry is concerned. The Three Sisters, ELYSIA A. 2 Stuart, 370 s. c.; Young's Ad. Decisions, 149. Under the Vice-Admiralty Courts' Act, 1863, the Dominion of Canada is not a possession within the meaning of that Act, so as to enable a Vice-Admiralty Court established in one Province to entertain jurisdiction over a vessel registered in another Province for the enforcement of claims between owners. The Edward Barrow, Cook 212. This question of jurisdiction is now regulated in Canada by the Admiralty Act 1891, 54 & 55 Vict. c. 29. To give the Admiralty Court jurisdiction to enforce a bond, sea risk must have actually been incurred. The Atlas, 2 Hagg. 52. If the bond expresses a maritime risk, absence of provision for maritime interest will not invalidate it. The Laurel, Br. & Lush. 317. The bond will be valid even if there be no stipulation for interest of any kind. The Cecelie, 4 P. D. 210. 210. A bottomry bond payable on arrival in England is triable by English maritime law, not by the law of the ship's flag or the place where executed. The Hamburg, Br. & Lush. 253. In this case Dr. Lushington, at p. 259, says that Lord Stowell, in The Gratitudine, 3 C. Rob. 240, has exhausted all the authorities on this branch of the law. Lloyd v. Guibert, L. R. 1 Q. B. 115. Although the voyage may be illegal, yet a bona fide lender on bottomry can recover. The Mary Ann, L. R. 1 A. & E. 13. The validity of the bond depends on the necessities of the ship, and the authority of the master to borrow is based on such necessity. The Pontida, 9 P. D. 102, 177. As to priority of master's claim for wages see The Edward Oliver, L. R. 1 A. & E. 379; The Daring, L. R. 2 A. & E 260; The Eugenie, L. R. 4 A. & E. 123. THE TEDDINGTON-RATTER. Damage to Property — Jurisdiction - Extension of Vice-Admiralty Courts Act, 1863, Sec. 10. A railway passenger car, standing upon a track on a wharf on the western side of the harbor of St. John, and within the limits of the city of St. John, was injured by a hawser attached and belonging to a steamship moored to the wharf. Held:-That since the passing of the Statute 26 & 27 Vict., c. 24, sec. 10, the Vice-Admiralty Court has jurisdiction to entertain a claim for damage to property done by any ship, although the property injured is within the limits of a county, and situate upon the land. The promovent, Joseph N. Green, was the owner of a passenger railway carriage, standing upon a railway track laid along a wharf on the western side of the harbor of St. John, and within the limits of the city of St. John. The steamship Teddington, while the passenger car was standing upon the railway track on the wharf, was moored to the wharf by a hawser owned by and attached to the steamer. In changing the position of the steamer at the wharf the hawser by some means came into contact with the passenger car, through negligence and carelessness on the part of the steamship, and in consequence the passenger car was overturned, thrown from the track, and greatly damaged. The steamship was arrested under a warrant issued out of this Court. The respondents, the owners of the vessel, entered bail and appeared under protest, denying the jurisdiction of the Court on the ground that the property injured at the time was on the land and within the body of a county, and they therefore prayed that the judge pronounce for the protest, and dismiss the defendants and their bail from the action. After argument, the Court pronounced in favor of the jurisdiction, overruled the protest, and assigned the respondents to appear absolutely. Geo. G. Gilbert, Q. C., for promovent. D. S. Kerr, Q. C., and John Kerr, for respondents. 1881 Nov. 14. 1881 THE TEDDINGTON And now (Nov. 14th, A. D. 1881), the following judgment was delivered by WATTERS, J. This is a cause of damage promoted by Joseph N. Green against the steamship Teddington. The affidavit upon which the warrant issued alleges that the said Joseph N. Green is the owner of a passenger railway car, and that while the said car was standing on the railroad track at Sand Point, in Carleton, in the city of Saint John, it was overturned from off the said track by the hawser of the said steamship, and by the careless, negligent, and improper manner in which the said steamer was managed. That the hawser at the time of such damage was attached to the said steamship, and secured the said ship to the wharf. An appearance has been entered under protest by the owners of the steamship, who have filed an act on protest, in which the jurisdiction of this Court is denied on the ground that the cause of action arose within the body of the city and county of Saint John. They allege, in their act, that the place where the collision in question happened, was on a railway wharf, called the Carleton Branch Railway wharf, situate at the easterly end of Protection street, in Brooks Ward, in that part of the city of Saint John called Carleton, and within the body of the city and county of Saint John, and not on the high seas, or within the jurisdiction of this Court, and that it is not a cause of damage, civil and maritime. At the hearing, affidavits were read on both sides. The circumstances of the case appear to be these: That the steamship arrived in this harbor with a cargo of railway iron; that she was moored at the Railway wharf at Carleton, in the city of Saint John, where she discharged the iron; that on the 12th October last, at flood tide, whilst she was being moved from this wharf to another part of the harbor, as she swung around, her hawser, which was attached to the wharf upon which the railway car was standing, came in contact with the car, overturning it and doing the damage complained of. The question to determine is whether this is a case of damage coming within the words of the 10th section of the Vice-Admiralty Court Act of 1863, which gives jurisdiction 1881 THE to this Court over "claims for damage done by any ship." The denial of the jurisdiction of the Court is urged by respond- TEDDINGTON ents' counsel on two grounds; 1, that the cause of action arose within the body of the city and county of Saint John; 2, that the article damaged was not a maritime object, and therefore the cause is not one of a civil or maritime nature, and that the damage named in the 10th section of the Statute means a damage done by a ship to a ship, and not a damage done to a person, or to any article or other thing except a ship. It is not necessary to follow all the arguments or review the history of the adjudications by which the Courts of Common Law in England formerly sought to limit the jurisdiction of the Court of Admiralty. That jurisdiction, until the Statutes of Richard II, extended to all maritime contracts, whether executed at home or abroad, and to all torts, injuries and offences on the high seas and in ports and havens, as far as the ebb and flow of the tide. The common law interpretations of these Statutes abridged this jurisdiction to things done wholly and exclusively upon the sea; but this interpretation, in the opinion of Mr. Justice Story, delivered by him in the case of De Lorio v. Boit (1), is indefensible upon principle, and he says the decisions founded upon it are inconsistent and contradictory. He shows, notwithstanding, that the interpretation of the same Statutes by the Admiralty does not abridge any of its ancient jurisdiction, but leaves to it cognizance of all maritime contracts and all torts, injuries and offences upon the high seas, and in ports as far as the tide ebbs and flows. This judgment of Judge Story I find referred to and approved of by Sir Robert Phillimore, Judge of the High Court of Admiralty, in the late case of The Sylph (2), which was a case of personal damage done by a ferry-boat on the river Mersey. He says "that this Court had original jurisdiction in such a case as the present, I have no doubt whatever. It is given by the terms of the Patent under which I hold my office, and it is clear from the old authorities that the Court had (1) 2 Gall. Rep. 398. (2) L. R. 2 A. & E. 24. |