1911 Encyclopædia Britannica/Admiralty Jurisdiction
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ADMIRALTY JURISDICTION. The courts by which, as far as we know, admiralty jurisdiction in civil matters was first exercised were the following. In and throughout England the courts of the several admirals soon combined into one High Court of Admiralty (see ADMIRALTY, HIGH COURT OF.) Within the territories of the Cinque Ports the Court of Admiralty of the Cinque Ports exercised a co-ordinate jurisdiction. In certain towns and places there were local courts of vice-admiralty. In Scotland there existed the Scottish High Court of Admiralty, in Ireland the Irish High Court of Admiralty. Of these courts that of the Cinque Ports alone remains untouched. The Scottish court was abolished, and its civil jurisdiction given to the Court of Session and to the courts of the sheriffs by the Court of Session Act 1830—not, however, till a decision given by it and the appeal therefrom to the House of Lords had established a remarkable rule of admiralty law in cases of collision (Hay v. le Neve, 1824, 2 Shaw, Sc. App. Cas. 395). The act states that the Court of Justiciary held cumulative jurisdiction with the Court of Admiralty in criminal matters. The local vice-admiralty courts in England had ceased to do much work when they were abolished by the Municipal Corporations Act 1835; the High Court became, with the other superior courts, a component part of the High Court of Justice by virtue of the Judicature Acts 1873 and 1875. And the Irish court has in like manner become a part of the High Court of Justice in Ireland by virtue of the Judicature Act passed in 1877.
As England first, and Great Britain afterwards, acquired colonies and possessions beyond seas, vice-admiralty courts were established. The earliest known was that in Jamaica, Vice-
Courts. established in the year 1662. Some vice- admiralty courts which were created for prize purposes in the last century were suffered to expire after 1815. In the year 1863, when the act regulating the vice-admiralty courts was passed, there were vice-admiralty courts at Antigua, Bahamas, Barbadoes, Bermuda, British Columbia, British Guiana, British Honduras, Cape of Good Hope, Ceylon, Dominica, Falkland Islands, Gambia River, Gibraltar, Gold Coast, Grenada, Hong Kong, Jamaica, Labuan, Lagos, Lower Canada (otherwise Quebec), Malta, Mauritius, Montserrat, Natal, Nevis, New Brunswick, Newfoundland, New South Wales, New Zealand, Nova Scotia (otherwise Halifax), Prince Edward Island, Queensland, St Christopher, St Helena, St Lucia, St Vincent, Sierra Leone, South Australia, Tasmania, Tobago, Trinidad, Vancouver's Island, Victoria, Virgin Islands (otherwise Tortola), and Western Australia, and (for matters of the slave trade only) Aden. By the act of 1867 one for the Straits Settlements was added. These courts have been regulated from time to time by the following statutes: 2 and 3 Will. IV. c. 51, 26 and 27 Vict. c. 24 (Vice-Admiralty Courts Act 1863), already cited, and 30 and 31 Vict. c. 45 (Vice-Admiralty Courts Act Amendment Act 1867); and by the slave trade acts, of which the last and consolidating act was that of 1873.
In 1890 the Colonial Courts of Admiralty Act provided that, except in the colonies of New South Wales, Victoria, St Helena and British Honduras, vice-admiralty courts should be abolished, and a substitution made of colonial courts of admiralty. There is power, however, reserved to the crown to erect through the admiralty in any British possession any vice-admiralty court, except in India or any British possession having a representative legislature. No vice-admiralty court so established can exercise any jurisdiction except for some purpose relating to prize, the royal navy, the slave trade, foreign enlistment, Pacific Islanders' protection, and questions relating to treaties or conventions on international law. Vice-admiralty courts exercised all usual admiralty jurisdiction, and in addition a certain revenue jurisdiction, and jurisdiction over matters of slave trade and prize and under the Pacific Islanders' Protection Act. The appeal from vice-admiralty courts used to lie to the High Court of Admiralty of England, but has been transferred to the king in council.
By the Colonial Courts of Admiralty Act 1890, already referred to, every court of law in a British possession Colonial
Courts of Admiralty. which is declared by its legislature to be such, or if there be no such declaration, which has original unlimited civil jurisdiction, shall be a court of admiralty.
There used at one time to be vice-admiralty courts for Calcutta, India. Madras and Bombay; but by the India High Courts Act 1861, sec. 9, the admiralty jurisdiction is given to the High Courts of these places.
Consular courts established in Turkey, China and Japan have Consular
Courts. had admiralty jurisdiction given to them, and by sec. 12 of the Colonial Admiralty Courts Act any court established by H.M. for the exercise of jurisdiction in any place outside H.M.'s dominion may have admiralty jurisdiction granted to it.
By the Commonwealth of Australia Constitution Act 1900 a federal supreme court, to be calledAustralia. the High Court of Australia, is created, and the parliament of the Commonwealth may make laws conferring original jurisdiction on the High Court in matters of admiralty and maritime jurisdiction,
There is a court of admiralty in the Isle of Man of which The Isle of Man. the water-bailiff is judae. He is also styled admiral. It is said to have jurisdiction in salvage and over other maritime matters occurring within 3 leagues from the shore.
Modern statutes have given admiralty jurisdiction to the City of London Court, the Court of Passage and to the county courts in the following matters: Salvage, where the value of the County Local Courts. salved property does not exceed L. 1000, or the claim for reward L. 300; towage, necessaries and wages, where the claim does not exceed L. 150; claims for damage to cargo, or by collision, up to L. 300 (and for sums above these prescribed limits by agreement between the parties); and claims arising out of breaches of charter parties and other contracts for carriage of goods in foreign ships, or torts in respect thereof, up to L. 300. This jurisdiction is restricted to subjects over which jurisdiction was possessed by the High Court of Admiralty at the time when the first of these acts was passed, except as regards the last branch of it (the "Aline," 1880, 5 Ex. Div. 227; R. v. Judge of City of London Court, 1892, 1 Q.B. 272). In analogy with the county court admiralty jurisdiction created in England, a limited admiralty jurisdiction has been given in Ireland to the recorders of certain boroughs and the chairmen of certain quarter sessions; and in salvage cases, where a county court in England would have jurisdiction, magistrates, recorders and chairmen of quarter sessions may have jurisdiction as official arbitrators (Merchant Shipping Act 1894, sec. 547). In Scotland, admiralty suits in cases not exceeding the value of L. 25 are exclusively tried in the sheriff's court; while over that limit the sheriff's court and the Court of Session have concurrent jurisdiction. The sheriff has also criminal admiralty jurisdiction, but only as to crimes which he would be competent to try if committed on land (The Court of Session Act 1830, sec. sec. 21 and 22).
By an act of 1821 an arbitral jurisdiction in cases of salvage was given to certain commissioners of the Cinque Ports.
The appeal from county courts and commissioners is to the High Court of Justice, and is exercised by a divisional court of the Probate, Divorce and Admiralty Division. In cases Appeals. arising within the Cinque Ports there is an optional appeal to the Admiralty Court of the Cinque Ports. The appeal from the High Court of Justice is in ordinary admiralty matters, as in others, to the Court of Appeal, and from thence to the House of Lords. But it is specially provided by the Judicature Act 1891, as it was by the Prize Act 1864, that the appeal in prize cases shall be to the sovereign in council.
The unfortunate provisions of the legislature, giving to the jurisdiction of county courts different money limits in admiralty equity and common law cases, make the distinction between cases coming under the admiralty jurisdiction and other civil cases of practical moment in those courts. Arguments full of learning and research have been addressed to the courts, and weighty decisions have been given, upon questions which would never have arisen if the county courts had not a larger money area of jurisdiction in admiralty cases than they have in in other matters (R. v. Judge of City of London Court, 1892, 1 Q.B. 273; the "Zeta," 1893, App. Cas. 468). But as regards the high courts, whether in England, Scotland or Ireland, it is not now necessary to distinguish their civil admiralty jurisdiction from their ordinary civil jurisdiction, except for the purpose of seeing whether there can or cannot be process in rem. Not that every admiralty action can of right be brought in rem, but that no process in rem lies at the suit of a subject unless it be for a matter of admiralty jurisdiction—one, for instance, that could in England have been tried in the High Court of Admiralty. Now these matters of admiralty jurisdiction with process in rem range themselves under four primary and four supplementary heads. The four primary are damage, salvage, bottomry, wages; and the four supplementary are extensions due to one or other of the statutes of 1840 (Admiralty Court) and 1861 (Admiralty Court Act). They are damage to cargo carried in a ship, necessaries supplied to a ship, mortgage of ship, and master's claim for wages and disbursements on account of a ship. In all these cases, primary and secondary, the process of which a plaintiff can avail himself for redress, may be either in personam as in other civil suits, or by arrest of the ship, and, in cases of salvage and bottomry, the cargo. Whenever, also, the ship can be arrested, any freight due can also be attached, by arrest of the cargo to the extent only of the freight which it has to pay. For the purpose of ascertaining whether or not process in rem would lie, there have been distinctions as nice, and the line of admiralty jurisdiction has been drawn as carefully, as in the cases of the admiralty jurisdiction of the county courts (the "Theta," 1894, Prob. 280; the "Gas Float Whitton," 1897, App. Cas. 337). There have been similar questions raised in the United States, from De Lovio v. Boit (1815, 2 Gallison, 398), and Ramsay v. Allegre (1827, 12 Wheaton, 611), down to the quite modern cases which will be found quoted in the arguments and judgments in the "Gas Float Whitton."
The disciplinary jurisdiction at one time exercised by the Admiralty Court, over both the royal navy and merchant vessels, may be said to be obsolete in time of peace, the Disciplinary.last remnant of it being suits against merchantmen for flying flags appropriate to men-of-war (the "Minerva," 1800, 3 C. Rob. 34), a matter now more effectively provided against by the Merchant Shipping Act 1894. In time of war, however, it was exercised in some instances as long as the Admiralty Court lasted, and is now in consequence exercisable by the High Court of Justice (see Prize below). It was, perhaps, in consequence of its ancient disciplinary jurisdiction that the Admiralty Court was made the court to enforce certain portions of the Foreign Enlistment Act 1870.
Finally, appeals from decisions of courts of inquiry, under the Merchant Shipping Act, cancelling or suspending the certificates of officers in the merchant service, may be made to the Probate, Divorce and Admiralty Division of the High Court of Justice.
The admiralty jurisdiction in criminal matters extends over all crimes committed on board British ships at sea or in tidal waters, even though such tidal waters be well within Criminal cases.foreign territory (R. v. Anderson, 1868, L.R. 1 C.C.R. 161), but not over crimes committed on board foreign vessels upon the high seas (R. v. Serva, 1845, 1 Denison C.C. 104). Whether it extended over crimes committed on foreign ships within territorial waters of the United Kingdom, and whether a zone of three miles round the shores of the United Kingdom was for such purpose territorial water, were the great questions raised in R. v. Keyn (the "Franconia," L.R. 2 Ex. Div. 126), and decided in the negative by the majority of the judges, rightly, as the writer of this article respectfully thinks. Since then, however, the legislature has brought these waters within the jurisdiction of the admiralty by the Territorial Waters Jurisdiction Act 1878. Section 2 runs as follows: "An offence committed by a person, whether he is or is not a British subject, on the open sea within the territorial waters of British dominions, is an offence within the jurisdiction of the admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried and punished accordingly." By sec. 7 the "jurisdiction of the admiral" is defined as "including the jurisdiction of the admiralty of England or Ireland, or either of such jurisdictions as used in any act of parliament; and for the purpose or arresting any person charged with an offence declared by this act to be within the jurisdiction of the admiral, the territorial waters adjacent to the United Kingdom, or any other part of her majesty's dominions, shall be deemed to be within the jurisdiction of any judge, magistrate or officer." And "territorial waters of her majesty's dominions" are defined as "in reference to the sea, meaning such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of her majesty's dominions, as is deemed by international law to be within the territorial sovereignty of her majesty; and for the purpose of any offence declared by this act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast, measured from low-water mark, shall be deemed to be open sea within the territorial waters of her majesty's dominions." As to those portions of the sea and tidal waters which, by reason of their partially land-locked positions, are deemed to be in the body of a county, there is not admiralty jurisdiction, but crimes are tried as if they were committed on land within the same county.
Pirates, whatever flag they pretended to fly, were, from 1360 onwards, wherever their crimes were committed, subject to the admiralty jurisdiction. The criminal jurisdiction of the admiralty was first exercised by the High Court of Admiralty; and then, by virtue of the Offences at Sea Act 1536, transferred to commissioners appointed under the great seal, among whom were to be the admiral or admirals, his or their deputies. Admiralty sessions were held for this purpose till 1834. Admiralty criminal jurisdiction is now, by virtue of the series of statutes, the Offences at Sea Act 1799, the Central Criminal Court Act 1834, Offences at Sea Act 1844, and the criminal law consolidation acts passed in 1861, exercised by the Central Criminal Court and by the ordinary courts of assize. Special provision for trial in the colonies of offences committed at sea has been made by an act of William III. (1698-1699), the Offences at Sea Act 1806, and the Admiralty Offences (Colonial) Act 1849.
The Admiralty Court had jurisdiction in matters of prize from very early times; and although since the middle of the 17th century the instance, or ordinary civil jurisdiction of the Prize. court, has been kept distinct from the prize jurisdiction, they were originally both administered and regarded as being within the ordinary jurisdiction of the lord high admiral. The early records of the admiralty show that the origin of the prize jurisdiction is to be traced to the power given to the court of the admiral to try cases of piracy and "spoil," i.e. captures of foreign ships by English ships. The earliest recorded case of spoil tried before the admiral is in 1357, when the goods of a Portuguese subject, taken at sea by Englishmen from a French ship which had previously spoiled a Portuguese, were awarded by the admiral as good prize to the English captors; and Edward III. in a letter to the king of Portugal answering a complaint on the subject gives the admiral's decision as a reason for refusing their restoration. During the 16th century a very large part of the business of the Admiralty Court related to spoil and piracy, and the privy council often directed the judge of the court how to deal with the spoil cases, with regard to which foreigners who had suffered from attacks by English ships made petition for redress to the admiral or the council. The spoil suit at this time (causa spolii) was a civil proceeding resulting in a decree absolutoria, dismissing the defendant, or condemnatoria, ordering restoration to be made by him. In 1585 the patent of Howard, the lord high admiral, authorized him to issue letters of reprisal against Spain; and an order in council regulating the conduct of those to whom such letters were issued provided by an additional article (1859) that all prizes were to be brought in without breaking of bulk for adjudication by the Admiralty Court. The court was also resorted to at this time by captors, sailing under commissions granted by the allies of England, such as the king of France and the Dutch. About the middle of the 17th century separate sittings of the court for instance and prize business began, perhaps because of the conflicting claims to droits of Charles II. and the duke of York as lord high admiral; and privateering under royal commission took the place of the former irregular "spoiling." The account which Lord Mansfield gave of the records of the Admiralty Court, that there were no prize act books earlier than 1641, or prize sentences earlier than 1648, and that before 1690 the records were in confusion, must be qualified by the correction that there are in existence prize sentences (on paper, not parchment) as early as 1589.
Although the courts of common law hardly ever seem to have interfered with or disputed the admiralty prize jurisdiction, its exclusive nature was not finally admitted till 1782; but long previously royal ordinances (1512, 1602) and statutes (1661, giving an alternative of commissioners, 1670, 1706) had given the Admiralty Court the only express jurisdiction over prize. The same statute of Anne and acts of 1739 and 1744 give prize jurisdiction to any court of admiralty, and the courts of admiralty for the colonies and plantations in North America.
It has been a disputed question whether the prize jurisdiction of the court was inherent, i.e. coming within the powers given by the general patent of the judge, in which no express mention of it is made, or whether it required a special commission. Upon this subject the judgment of Lord Mansfield in Lindo v. Rodney (1782, Dougl. 612), the judgment of Mr Justice Story in De Lovio v. Boit (1815, 2 Gallison, 398), and Marsden's Select Pleas of the Court of Admiralty (introduction), may be consulted. But the settled practice now and for a long time past has been for a special commission and warrant to be issued for this purpose. In connexion with this it is observable that in 1793 the Admiralty Court of Ireland claimed to exercise prize jurisdiction under its general patent; and it is said to have been the opinion of Sir W. Wynne that the Admiralty Court of Scotland had a similar right (Brown, Civil Law of Admiralty, vol. ii. 211, 212). Any jurisdiction of the Scottish court over prize of war was transferred to the English court by the Court of Session Act 1825, sec. 57. As to the Irish court, by the Act of Union it was provided that there should remain in Ireland an instance court of admiralty for the determination of causes civil and maritime only.
In 1864 the constitution and procedure of prize courts, which had until then been prescribed by occasional acts passed for each war as it arose, were for the first time made permanent by the Naval Prize Act, by which the High Court of Admiralty and every admiralty or vice-admiralty court, or any other court exercising admiralty jurisdiction in British dominions, if for the time being authorized to exercise prize jurisdiction, were made prize courts. The High Court of Admiralty was given jurisdiction throughout British dominions as a prize court, and, as such, power to enforce any order of a vice-admiralty prize court and the judicial committee of the privy council in prize appeals— this power mutatis mutandis being also given to vice-admiralty prize courts. An appeal was given from any prize court to the sovereign in council. Prize courts were given jurisdiction in cases of captures made in a land expedition or an expedition made conjointly with allied forces, and power to give prize salvage on recaptured ships and prize bounty; and a form of procedure was prescribed. The High Court was also given exclusive jurisdiction as a prize court over questions of ransom and petitions of right in prize cases, and power to punish masters of ships under convoy disobeying orders or deserting convoy. By the Naval Discipline Act 1866, power to award damages to convoyed ships exposed to danger by the fault of the officer in charge of the convoy was also given to the High Court. Under other statutes it had power to try questions of booty of war when referred to it by the crown, in the same way as prize causes, and claims of king's ships for salvage on recaptures from pirates, which could be condemned as droits of admiralty, subject to the owner's right to receive them on paying one-eighth of the value, and also power to seize and restore prizes captured by belligerents in violation of British neutrality, or by a ship equipped in British ports contrary to British obligations of neutrality.
All jurisdiction of the High Court of Admiralty has since passed to the High Court of Justice, which is made a prize court under the Naval Prize Act, with all the powers of the Admiralty Court in that respect; and all prize causes and matters within the jurisdiction of that court as a prize court are assigned to the Probate, Divorce and Admiralty Division; and an appeal from it as a prize court lies only to the king in council (Judicature Acts 1873 and 1891).
By an act of 1894 further provision is made for the constitution of prize courts in British possessions. A commission, warrant or instruction from the crown or the admiralty may be issued at any time, even in peace; and upon such issue, subject to instructions from the crown, the vice-admiral of the possessions on being satisfied by information from a secretary of state that war has broken out between Great Britain and a foreign state, may make proclamation to that effect, and the commission or warrant comes into effect. The commission or warrant may authorize a vice-admiralty court or colonial court of admiralty to act as a prize court, or establish a vice-admiralty court for that purpose, and may be revoked or altered at any time. The court is authorized to act as a prize court during the war, and shall after its conclusion continue to act as such, and finally dispose of all matters and things arising during the war, including all penalties and forfeitures incurred therein. Rules of court may also be made by order in council for regulating, subject to the Naval Prize Act, the procedure and practice of prize courts under that act, the duties and conduct of their officers and practitioners, and the fees and costs therein (Prize Courts Act 1894, sec. sec. 2, 3). This latter power has been exercised; and prize rules for the High Court of Justice and the vice- admiralty prize courts were framed in 1898 (Statutory Rules and Orders, 1898).
- Marsden, Select Pleas of the Court of Admiralty, Selden Society, London, 1892 and 1897;
- Zouch, Jurisdiction of the Admiralty of England asserted;
- Robinson, Collectanea Maritima;
- Brown, Admiralty;
- Edwardes, Admiralty;
- Phillimore, International Law, vol. i., vol. iii. part xi.;
- Pritchard, Admiralty Digest, tit. Jurisdiction.
The source of admiralty jurisdiction in the United States is Article 3, sec. 2 of the United States Constitution:—"The judicial power shall extend to all cases of admiralty and maritime jurisdiction." The United States Supreme Court has declared that by virtue of these words the admiralty jurisdiction extends not only to the high seas but to the great lakes and the rivers connecting them, and to all public navigable waters in the United States (the "Genesee Chief" v. Fitz Hugh, 12 Howards U.S. Rep. 443), including even interstate canals (Ex. p. Boyer, 109 U.S. Rep. 629, the "Robert W. Parsons,"  191 U.S. 17), and is not confined to tide waters. The American colonies had vice-admiralty courts with an admiralty jurisdiction equal to the largest claimed by the English admiralty courts even under Edward III. When they became states they delegated to the federal government their several "admiralty and maritime jurisdiction," using these words in the sense understood in every country in Europe, England excepted, and in the sense in which they had then been used in the colonies for a long time, and without reference to the very narrow jurisdiction of the English admiralty courts then existing (Waring v. Clark, 5 Howards U.S. Rep. 441).
It is settled as to the United States admiralty jurisdiction not that it is "co-equal with that of the original English, or that of continental European admiralty, but is rather that defined by the statutes of Richard II., under the construction given to them by contemporary or immediately subsequent courts of admiralty" (2 Parsons Adm. 176), and that it embraced all maritime contracts, torts, injuries or offences (De Lovio v. Boit, 2 Gallisons Rep. 398; Waring v. Clark, 5 Howards U.S. Rep. 441), and that it has never been restricted by the action of the common law courts as in England under Lord Coke (2 Parsons Adm. 166 n.; Waring v. Clark; De Lovio v. Bolt.)
Original admiralty jurisdiction was by the Judiciary Act of 1789 (U.S. Rev. Stats. sec. 563) granted to the United States district courts exclusively, except that concurrent original jurisdiction was given to United States circuit courts over seizures for slave trading, and condemnations of property used by persons in insurrection (sec. 629; sec. 5309), and in the coolie trade (sec. 2159), and by the act of the 3rd of March 1901; the supreme court of the District of Columbia is given the same jurisdiction as the district and circuit courts. The Supreme Court of the United States has no original jurisdiction in admiralty. All suits are brought in the first instance in the district court. Appeals lie, both on the law and on the facts, from a final decree of that court to the circuit court of appeals only, except in cases involving the jurisdiction of the court, the constitutionality of a law of any state or of the United States, or the validity or construction of any treaty of the United States, and except cases of prize and capital or infamous crime, in which cases of appeal lies directly to the supreme court. In cases of gravity and importance the Supreme Court may by certiorari review the judgment of the circuit court of appeals, but such cases are rare (re Lau Ow Bew, 141 U.S. Rep 587; Benedict's The American Admiralty, sec. 607). Formerly the Judiciary Act authorized an appeal from the district court to the circuit court, and thence to the Supreme Court. But the act of the 3rd of March 1891 (Ch. 517) abolished this and created the circuit court of appeals, making it the final appellate court in admiralty, except as above stated. In any case where the district judge is unable to perform his duties or is disqualified by reason of interest or of relationship, or has acted as counsel for one of the parties to the action, it may be removed to the circuit court in that district (U.S. Rev. Stats. sec. sec. 587, 589 and 601). These are now the only cases in which admiralty suits can come before the circuit court (Benedict's Adm. sec. 321).
The subject matter in cases of contract determines the jurisdiction (the "General Smith," 4 Wheaton U.S. Rep. 438), and not the presence or absence of tide, salt water, current, nor that the water be an inland basin or land-locked, or a river, nor by its being a harbour, or a port within the body of the county, nor that a remedy exists at common law. The admiralty courts have jurisdiction over all matters that concern owners and proprietors of ships as such; possessory actions and petitory actions to try title of a ship; cases of mariners' wages, wharfage, dockage, lighterage, stevedores, contracts of affreightment, charter parties, rights of passengers as such (the "Moses Taylor," 71 U.S. Rep. 411), pilotage, towage, maritime liens and loans, bottomry, respondentia and hypothecation of ship and cargo, marine insurance, average, jettison, demurrage, collisions, consortship, bounties, survey and sale of vessel, salvage; seizures under the laws of impost navigation or trade, cases of prize, ransom, condemnation, restitution and damages; assaults, batteries, damages and trespasses on the high seas and navigable waters of the United States; but not suits in rem for duties (Benedict's Adm. sec. 303a).
The U.S. Supreme Court has held in Peoples Ferry Co. v. Beers, 20 Howards U.S. Rep. 393, and in a series of subsequent cases that a contract to build a vessel is not a maritime contract (the "Robert W. Parsons"). Contracts to furnish cargo for ships and to furnish ships to carry the cargoes are maritime contracts (Graham v. Oregon R. & N. Co.,  135 Fed. Rep. 608).
Whenever there is a maritime lien, even though created by state statute as to a ship in her home port, it may be enforced by suit in rem in admiralty in the federal courts (the "General . Smith"; the "Lottawanna," 21 Wallace Rep. 558, Benedict's Adm. sec. 270). In all suits by material men for supplies and repairs or other necessaries for a foreign ship, the libellant may proceed against the ship and freight in rem or against the master or owner in personam (12th Admiralty Rule; Benedict's Adm. sec. 268; the "General Smith"). Actions in rem and in personam may be joined in the same libel (Newell v. Norton, 3 Wallace 257; the "Normandie," 40 Fed. Rep. 590). But a contract to furnish fishermen with clothing, tobacco and other personal effects for use on a voyage is not a maritime contract, and a court of admiralty has no jurisdiction to enforce it in rem (the "May F. Chisholm," 1904; 129 Fed. Rep. 814). The state courts have no jurisdiction in rem over any maritime contract or tort (the "Lottawanna," the "Belfast," 7 Wallace Rep. 624). Admiralty jurisdiction in tort depends on locality; it must have occurred on the high seas or other navigable waters within admiralty cognizance (2 Farsons Adm. 347; the "Plymouth," 3 Wallace Rep. 20; the "Genesee Chief" v. Fitz-Hugh, the "Blackheath,"  122 Fed. Rep. 112).
The U.S. Supreme Court in the "Harrisburg" (119 U.S. 199) and the "Alaska" (130 U.S. 207), after some conflict of opinion, held that the admiralty courts have no jurisdiction under the general admiralty law to try an action for damages for negligence on the high seas, causing death of a human being, while there was no act of Congress and no statute of the state to which the vessel belonged giving such right of action (Benedict's Adm. sec. sec. 275-309a), nor where such statute is that of a foreign country (Rundell v. Compagnie Generale,  94 Fed. Rep. 366).
Admiralty has jurisdiction in cases of spoliation and piracy, collision and proceedings by owners to limit their liability under U.S. Rev. Stats. sec. sec. 4281-9.
The United States admiralty courts have always had jurisdiction in matters of prize (The Prize Cases, 2 Black U.S. Rep. 635). The district courts have exclusive original jurisdiction (except that circuit courts also have jurisdiction when prize is taken from persons in insurrection), and the supreme court of the District of Columbia now has concurrent jurisdiction (U.S. v. Sampson, 1902, 187 U.S. 436) and appeals are direct to the Supreme Court. Special commissioners are appointed on the breaking out of hostilities to act under the orders of the district courts (U.S. Rev. Stats. sec. 4621, Prize Rule 9; Benedict's Adm. sec. 509; 680 Pieces Merchandise, 2 Sprague 233). These commissioners take the depositions of witnesses and report to the court the evidence upon which it adjudicates. Proceedings in prize cases must be in conformity with admiralty proceedings, where the seizure is on land (Union Insurance Co. v. U.S., 6 Wallace 759; 2 Parsons Adm. 174). The district courts have all the powers of a court of admiralty whether as instance or prize courts (Glass v. sloop "Betsy," 3 Dallas 6). To adjudicate in matters of prize is one of the ordinary functions of that court (Benedict's Adm. sec. 509).
The admiralty courts have jurisdiction over crimes and offences committed upon vessels belonging to citizens of the United States on the high seas or any arm of the sea or any waters within the admiralty and maritime jurisdiction of the United States (U.S. Rev. Stats. sec. 5339). High seas include the great lakes ( U.S. v. Rogers, 150 U.S. 249). (J. A. BA.)
In France, and in Belgium, Spain, Portugal, Italy and Greece —countries which have adopted codes based on the Code Napoleon—the civil, or, as it would have been formerly called France, and countries following France.in England, the "instance," jurisdiction of the admiralty is exercised by the ordinary tribunals, and there are no separate courts of admiralty for this purpose. France and some other countries have special commercial tribunals, which deal with shipping matters, but also with ordinary commercial cases. France has also tribunaux maritimes commerciaux (Code disciplinaire et penal de la marine marchande du 24 mars 1852, loi du 11 mars 1891) to deal with maritime offences. Austria adopts the French law in commercial matters. Italy had tribunals of commerce, but has given them up. She has, however, by Art. 14 of her Merchant Shipping Code, given jurisdiction to captains of ports to decide collision cases when the sum in dispute does not exceed 200 lire.
In Germany there are no special tribunals for admiralty matters. Germany. Kammern für Handelssachen, commercial courts, have been established in Berlin and some of the principal seaports. These deal with shipping matters, but also with all other commercial suits.
In Denmark, Sweden and Norway there is a maritime code which came into force in Sweden in 1891, in Denmark in 1892, and in Norway in 1893. This was intended to be one code for the Scandinavian nations. three countries; but each country as it finally adopted the code made some modifications of its own. Under this code there are in Norway permanent maritime courts for each town presided over by the judge of the inferior local civil court (civile underdömmer), or if there be more than one such judge then by the president, with two assessors chosen out of a list. Temporary local courts, consisting of the same judge with two other members of nautical skill and knowledge, can be constituted in districts where there are no permanent courts. Appeals lie to the supreme court (Höiesterei.) In Denmark maritime cases are brought before the local courts constituted for maritime and commercial causes (Sö-og-Handelsret.) In Sweden maritime cases are brought before local courts of first instance consisting of a judge and assessors. There is an intermediate appeal to courts of second instance, and then to the supreme court, which finally decides upon all causes civil and commercial.
Maritime cases in Holland are tried by the ordinary civil tribunals, with the same right of appeal.
"By the maritime law of nations universally and immemorially received there is an established method of determination whether the capture be or be not lawful prize. Before the Prize jurisdiction. ship or goods can be disposed of by the captor there must be a regular judicial proceeding wherein both parties may be heard and condemnation thereupon as prize in a court of admiralty judging by the law of nations and treaties. . . . If the sentence of the court of admiralty is thought to be erroneous, there is in every maritime country a superior court of review. . . ." (duke of Newcastle's letter to M. Michell, secretary to the embassy of the king of Prussia, 1753). "So far as belligerent states do not make a practice of giving up the taking of booty at sea . . . they are required by international law to establish prize tribunals and thus give to their proceedings in the matter of prize a judicial character" (v . Holtzendorff, Rechtslexikon, tit. "Prisengerichte").
In France till the death of the duke of Montmorency in 1632 prize matters were adjudicated upon by the admiral. The duke had sold the office of admiral some years before his death to Cardinal Richelieu; but about the period of the duke's death the office of admiral appears to have been abolished, and one of grand master of navigation established in lieu. This new office was first held by Cardinal Richelieu and continued till 1695. The grand master took the admiral's place in matters of prize; but in 1659 a commission of councillors of state and masters of requests was appointed to assist the grand master and form a Conseil des Prises. From this conseil there was an appeal to the Conseil d'État. When the office of admiral was restored in 1695 he exercised his jurisdiction in prize matters with the assistance of the Conseil des Prises. The appeal was then given to the Conseil Royal des Finances. The Ordonnance sur la marine of August 1681 regulated the procedure. This system continued till the Revolution. The last Conseil des Prises was appointed in 1778. A law of the 14th of February 1793 abolished the Conseil des Prises and gave cognizance of prize matters "provisionally" to the tribunals of commerce. On the 8th of November 1793 (18 Brumaire, an II.) this jurisdiction was taken from the tribunals of commerce and given to the Conseil Exécutif. Later it was given to the Comité de Salut Public. On the 25th of October 1795 (3 Brumaire, an IV.) the jurisdiction was restored to the tribunals of commerce. This was again altered on the 27th of March 1800 (6 Germinal, an VIII.), when a Conseil des Prises was established, consisting of nine councillors of state, a commissary of the government and a secretary, all nominated by the First Consul.
On the 11th of June 1806 an appeal was given to the Conseil d'État. It was disputed among French jurists whether the Conseil des Prises was to be considered as a body actuated only by political considerations or one exercising what the French term an "administrative jurisdiction"; which is, as nearly as a parallel to it can be found in England, administration of justice between individuals and the state.
As most of the cases arising out of the great wars had been dealt with, an ordinance of the 9th of January 1815 suppressed the Conseil des Prises and directed the Comité du contentieux of the Conseil d'État to prepare the remaining prize matters for decision by the Conseil d'État. Such prize matters (probably including captures for trading in slaves) as required to be dealt with till 1854, appear to have been dealt with by this body; an ordinance of the 9th of September 1831 directing that the proceedings before the Conseil d'Etat should be private, was held to show that the jurisdiction was not political but administrative.
An Imperial decree, however, of the 18th of July 1854 restored the Conseil des Prises, with appeal to the Conseil d'État. This was for the war with Russia. A similar decree was published on the 9th of May 1859 for the war with Austria in Italy.
On the 28th of November 1861 a further decree ordered that the Conseil instituted in 1859 should so long as it was kept in being decide all prize matters; and this Conseil has decided on prizes taken in the wars with Mexico and Germany and in Cochin China. It consists of seven judges and a commissary of the government. An appeal to the government in the Conseil d'État can be brought within three months. It is then decided by l'Assemblée du Conseil d'État.
Under the First Empire there were commissions des ports, commissions colonials and commissions consulaires, established mainly to collect materials for the Conseil des Prises, but sometimes, when the ship and cargo were clearly those of the enemy, proceeding to actual condemnation.
In Prussia Regulations of the 20th of June 1864 established a prize council consisting of a president and six associates with a law officer. An appeal was given to an upper prize council (v. Holtzendorff, Rechtslexikon, tit. "Prisengerichte").
By a law of the German empire of the 3rd of May 1884 the legality of prizes made during war has to be decided by prize courts, and the imperial government is authorized to determine the particulars as to the seat of such courts, their members and their proceedings (Reichsgesetzblatt of 1884, p. 49). Prize courts were established under this law on the occasion of the East African blockade in 1889 (Reichsgesetzblatt of 1889, pp. 5 sqq.).
In Italy Art. 14 of the Merchant Shipping Code provides that prize matters shall be tried by a special commission established by royal decree. On the occasion of the war with Austria such a special commission was established by royal decree of the 20th of June 1866. For the war with Abyssinia a fresh commission was established by royal decree of the 16th of August 1896. The composition of this commission, which was slightly different in character from that established in 1866, was as follows: (a) a first president of a court of appeal or a retired one, or a president of a section of the council of state or of cassation; (b) two general officers of the navy; (c) a member of the "contentious part" of the diplomatic service; (d) two councillors of a court of appeal; (e) a captain of a port, with a commissary of the government and a secretary; five to be a quorum. There was no appeal; but the ordinary right to have recourse to the Court of Cassation at Rome, if the prize commission proceeded without jurisdiction or in excess of jurisdiction, was preserved.
By an ordinance of the 27th of March 1895 regulating the whole matter of prize in Russia, two sorts of prize tribunals of first instance were contemplated—port tribunals and fleet tribunals. The latter are for captures made by ships of the fleet, and are to be composed of some of the principal officers of the fleet. The former are to have presidents named by the emperor from among those "qui font partie de l'administration maritime judiciaire"; the other members are to be appointed by the ministers of the navy, justice and foreign affairs. The court of appeal is formed by the council of the admiralty with the addition of two members of the senate and a nominee of the minister of foreign affairs (Clunet, 1904, p. 271).
On the occasion of the Russo-Japanese war, port tribunals were established under the authority of this ordinance by the lord high admiral, the Grand Duke Alexis, on the 13th of March 1904, at Sebastopol—Port Alexander III., Port Arthur and Vladivostock (Clunet, 1904, p. 479; London Gazette, 22nd March 1904). Many cases were heard before these tribunals and on appeal.
The procedure in prize cases under the old law of Spain is described in Abreu (Felix Joseph de Abreu y Bertodano), Tratado juridico Politico sobre Presas de Mar (Cadiz, 1746). On the occasion of the war with the United States the Spanish government published a proclamation stating the circumstances in which captures were to be made and prizes taken; but information is lacking as to the particular constitution of the prize court or courts.
In Greece prize questions are apparently left to be tried by the ordinary tribunals. See decision of Civil Tribunal of Athens, 1898, No. 3385 (reported Clunet, 1900, p. 826).
Turkey during her war of 1877 with Russia established a prize court and a court of appeal. The ordinance establishing these courts is set out in the London Gazette of the 6th of July 1877.
Japan established, in the war (1904-5) with Russia, prize courts at Sasebo and Yokosco with a court of appeal at Tokyo. Advocates were heard before these courts, and the procedure seems generally to have been modelled upon European patterns.
- Clunet, Journal du droit international privé, cited shortly as Clunet;
- v. Holzendorff, Rechtslexikon, Leipzig, 1881;
- De Pistoye et Duverdy, Traite des prises maritimes, Paris, 1855, vol. ii., tit. viii.; *Phillimore, International Law, vol. i., vol. iii. part xi.;
- Autran, Code international de l'abordage, de l'assistance, et du sauvetage maritimes, Paris, 1902;
- Raikes, The Maritime Codes of Spain and Portugal (1896), of Holland and Belgium (1898), of Italy (1900), London.