1883 THE ARKLOW. In The Fanny M. Carvell, 13 App. Cas. 455, n., it was held that by the true construction of the Merchant Shipping Act, 1873, s. 17, a British ship cannot be pronounced in fault merely by reason of its non-observance of a maritime regulation. In case of collision, a presumption of culpability thence arises, but such presumption may be met by proof that this infringement could not by any possibility have contributed to the collision. Where, therefore, a vessel infringed Art. 3 of the sailing regulations by carrying her sidelights with screens shorter than the length prescribed, but it was proved that such breach could not possibly have contributed to the collision, it was held that the ship so infringing could not be deemed to be in fault. late case it was proved that the lights carried by one of the vessels were so fixed as to be partially obscured, and that there was therefore an infringement of Art. In a 6 of the regulations. It was held by Butt, J., under s. 17 of 36 & 37 Vict., c. 85, that the vessel whose lights were thus obscured must be held in fault, without any inquiry as to whether such infringement could possibly have been a cause of the collision. This decision was reversed by the Court of Appeal, which held that it was the duty of the Court to inquire into the facts in order to ascertain whether the infringement of the regulations could possibly have contributed to the collision, and as it appeared from inquiry into the relative positions of the two vessels that the obscuration of the lights could not possibly have caused the collision, the vessel carrying such lights was not to blame. The Duke of Buccleuch, 15 P. D. 86. On appeal to the House of Lords the Court divided evenly, thereby affirming the judgment of the Court of Appeal, ibid (1891), A. C. 310. The master of a vessel registered in Canada, being also a part owner, was discharged at the home port, where the other owners also resided. He caused the vessel to be arrested in a cause of subtraction of wages for an amount under $200. Held:- That the Court had no jurisdiction under 36 Vic. c. 129, s. 56, and the cause was dismissed with costs. The promovent in this cause instituted an action for the recovery of $52, or thereabouts, for balance of wages due him as master of the ship Jonathan Weir, and also in the further sum of $7 for disbursements. The vessel was arrested in a cause of subtraction of wages, and released on bail. The owners appeared under protest, objecting to the jurisdiction of the Court on the ground that the amount claimed was under $200. The vessel was a Canadian ship, registered at the port of Moncton, in New Brunswick. It also appeared by the act on protest that the promovent, before suit brought, had made no demand for payment; that the owners were not insolvent; that the vessel was not at the time under arrest in any other cause in the Court; that all the parties in interest resided within twenty miles of the place where promovent was discharged, and that promovent was discharged at the home port of the said ship. C. W. Weldon, Q. C., in support of the act on protest to the jurisdiction, submitted that the only question for determination is whether an action can be maintained for the recovery of wages where the amount claimed is under $200. The Merchant Shipping Act, 1854, sec. 189, limits the right to £50; the Canadian Act, 1873, c. 129, sec. 56, to $200. He further cited the tug Robb (1); the Admiralty Act, 1861; the Vice-Admiralty Act, 1863; Burns v. Chapman (2); Rossi v. Grant (3); Johnston v. Hilberry (4). Want of (1) 17 Can. L. J. 66. (2) 5 C. B. N. S. 481. (3) Ibid. 699. (4) 3 H. & C. 328. 1883 Oct. 8. 1883 THE JONATHAN WEIR. jurisdiction is a plea in bar, and must be so pleaded. The Harriett (1). C. A. Palmer, contra, contended that the promovent, being master and part owner, must be deemed an exception to the parties intended by the statutes cited. He referred to The Royal (2); Maude & P., 123, 124; The Ferret (3); The Feronia (4); The City of Mobile (5). The Admiralty Act, 1861, was a virtual repeal of sec. 189 of the Act of 1854. The Vice-Admiralty Court, from 1854 to 1863, had not jurisdiction to entertain a suit under £50, but the ViceAdmiralty Act, 1863, repealed that limitation. See also Brown v. Vaughan (6). The Parliament of Canada cannot repeal an Imperial statute, and therefore the Vice-Admiralty Act, 1863, is not modified by sec. 56 of the Canadian Act of 1873. Weldon, Q. C., in reply. The Dominion Parliament has authority to modify the terms of the Imperial Acts of 1854 and 1863 so far as proceedings against Canadian shipping are concerned. The Acts of 1854 and 1863 are not repugnant. The latter Act does not impliedly repeal sec. 189 of the Act of 1854. As to promovent being a part owner, the Court cannot import any exception into the Imperial statute. WATTERS, J. Held that sec. 56 of c. 129 of the Canadian Act of 1873 was conclusive of the case that the Court had no jurisdiction; he sustained the act on protest, and dismissed the suit with costs. A doubt has been expressed (1) 5 L. T. N. S. 210. Ordered accordingly. ping Act, 1854, 17 & 18 Vict., (4) L. R. 2 Ad. & E. 65. claim for wages under £50, "unless the owner of the ship is adjudged bankrupt, or declared insolvent, or unless the ship is under arrest or is sold by the authority of any such Court as aforesaid, or unless any justice, acting under the authority of this Act, refer the case to be adjudged by such Court, or unless neither the owner nor master is or resides within twenty miles of the place where the seaman or apprentice is discharged or put ashore." By the Admiralty Court Act, 1861, 24 Vic., c. 10, the High Court of Admiralty, under sec. 10, “shall have jurisdiction over any claim by a seaman of any ship for wages earned by him on board the ship," whether the wages are earned under a special contract or otherwise, subject however to the proviso that if the plaintiff do not receive £50, he shall not be entitled to any costs unless the Judge shall certify that the case was a fit one to be tried in the said Court. The question then arises as to the effect of the Act of 1861. Has it by implication or necessary inference repealed section 189 of the Act of 1854? The opinion of the learned editors of Williams and Bruce on Admiralty Practice is that it has repealed section 189. At p. 202 (ed. 1886) it is stated: "The Court has now jurisdiction over a claim for wages, whatever may be its amount, but in order to F 1883 THE WEIR. discourage the institution in the Court of suits for trivial amounts, it was provided by the 10th sec- JONATHAN tion of the Admiralty Court Act, 1861, that if the plaintiff in any such cause did not recover £50, he should not be entitled to any costs, charges or expenses incurred by him therein, unless the judge should certify that the cause was a fit one to be tried in the Court. This section is, however, now impliedly repealed, and the costs of an action are in the discretion of the Court." In a note on p. 203 of the same work it reads: "It is conceived that this section, by giving the Court jurisdiction over any claim for wages, etc., impliedly repealed the 189th section of the Merchant Shipping Act, 1854, so far as it restricted the jurisdiction of the Admiralty Court." The effect, however, became unimportant, as "owing to the operation of the County Court Admiralty Jurisdiction Act, 1868, it is no longer necessary to consider what the effect of the 189th section of the Merchant Shipping Act, 1854, had on the jurisdiction of the Admiralty Court." In a note to Roscoe's Ad. Prac. (ed. 1878), p. 86, it is said: "A suit for wages under £50 cannot be maintained in the Vice-Admiralty Court by sec. 189 of 17 & 18 Vic., c. 104; but the Act of 1863 contains no such limitation." The language of the Act of 1861, sec. 10, is sufficiently The cases of Garnett v. Bradley, 3 App. Cas. 944, (1878); and Tennant v. Ellis, 6 Q. B. D. 46, (1880), are cited in Williams & Br., in support of the contention that sec. 10 of the Act of 1861 has also been repealed so far as the question of costs is concerned. Both cases are important in showing how a subsequent Act may by implication repeal a prior enactment. The case of Garnett v. Bradley arose out of an action of slander, and under the Statute 21, Jas. I, c. 16, s. 6, where the plaintiff does not, in an action of slander, recover more than 40 shillings damages, he shall not get any greater amount of costs than the verdict for damages. The Judicature Act of 1875 authorises the Court to make rules, having the force of law, and in pursuance of that authority, Order 55 was passed, which, inter alia, declares that "the costs of and incident to all proceedings in the High Court shall be in the discretion of the Court," subject, however, to the provisions of the Act, and that "costs shall follow the event," unless the judge shall otherwise order. In this case the judge did not otherwise order, and it was held that the Statute of James was by implication repealed, and that plaintiff was entitled to his costs. To the same effect is the case of Tennant v. Ellis, 6 Q. B. D. 46, (1880). Lord Westbury in the Westminister Estate, &c., 4 DeG. J. & S., p. 242, states the law of repeal by necessary implication thus: "If the particular Act itself gives a complete rule on the subject, the expression of that rule would amount to an exception of the subject matter of the rule." A case came before Dr. Lushington in March, 1861. The Harriett, Lush. 285, s. c., 5 L. T. N. S. 210, in which it was held that "the 189th section of the Merchant Shipping Act, 1854, bars a seaman from recovering wages less than £50 in the Court of Admiralty, except in the contingencies therein specified." It must be noted that The Harriett was decided on March 21, 1861, while the Admiralty Court Act, 1861, was not passed till May 17, 1861, and did not come into force till June 1, 1861. Dr. Lushington, in delivering judgment against the seaman's claim, on the ground that it did not amount to £50, said: "I am happy to say that an Act (24 Vict. c. 10) is now passing through the legislature, which will remedy the defect in the jurisdiction of the Court, which in the present case has operated with such hardship on the plaintiff." The Harriett, 5 |