Navigating the Lower Saint Lawrence in the 19th Century.
| Quebec Mercury #87, Tuesday, July 23, 1833. | ||
|---|---|---|
| LOWER CANADA - COURT OF VICE-ADMIRALTY. | ||
| Saturday, 20th July, 1833. | ||
| The Brown - Jackson. | ||
|
Judge Kerr. This suit is brought by a stevedore against the
brig Brown to recover the sum of £6 10s. for stowing the vessel.
The master has appeared under protest, and thus by a declinatory
plea, brought into question whether this court has cognizance of
suit? It has been denied by the defendant's advocate that a stevedore is what, in the marine law, is called a material man, and even if he should be considered as coming within that description, it has been argued that this Court can afford him no relief, in as much as Courts of Vice-Admiralty can have no greater power than the High Court of Admiralty of which it is a subordinate branch, and the case of the Favourite, 2 Rob. has been referred to in which Lord Stowell distinctly lays it down that material men, though they have been permitted to claim to be paid out of the proceeds of a vessel, have no right to institute an original suit against the ship. I am not inclined to give that limited meaning to the word material men as has been contended for. It is indeed true that stevedores, as such, do not furnish the substance of any thing. But they perform a very arduous duty, that is a work which is material, or in other words, important and essential to both ship and cargo, by placing the loading in such a skilful manner as to fill the whole capacity of the ship, and to load to her safe and speedy navigation. In this sense, I consider the promoter as much a material man as a shipwright, a sail-maker, or a caulker, who may only have applied their labour to the ship. But the solution of this matter depends on the nature of the contract, whether it is of a maritime or purely of a civil nature. In order to decide the question whether in the absence of an express contract, subjecting the brig to hypothecation, the promoter's services entitle him to a remedy against the ship in specie, it is necessary to examine into the reason and spirit of the English decisions, which refuse an hypothec to material men, for Scire leges non hor est verba earum tenere, sed vim et potestatem. G In England this class of men have no remedy against the ship for repairs or necessaries furnished. And why? Because its owner resides within the realm and may be easily known, material men are, therefore, presumed to have contracted on the personal credit of the owner. Besides it would be most injurious to the shipping interests, and even to the material men themselves, if the ship in specie G could be attached for their claims, since with such a right of hypothec, they might be induced without proper authority to give their labour or materials to vessels, and thus all parties involved in litigation and expense. The whole policy of the English law, it may also be observed, is adverse, and with great wisdom too, to all tacit hypothecs either in land, in houses, or ships. In this colony, of one thousand ships which arrive annually at this port, hardly an owner resides, and in other respects there is no resemblance between a colony and a parent state. Every ship much quoad G material men abroad be considered a foreign ships, and subject not to the rule which prevails within the realm of England but to the maritime law, that is in force in those nations which have adopted the law of Rome, and this is distinctly recognized in the case of Justice vs. Ballam, 2 Lord Raymond, 805, wherein the Court observed that, "although by the maritime law every contract with the master of a ship," (acting within the scope of his authority,) "implied as hypothecation, yet it was otherwise by the law of England, unless expressly so agreed." So it was considered in this Court so far back as the year 1795 or 1796, in the case of the Bridget, where a ship carpenter was held to have a right to recover against the ship for repairs, without an express hypothecation. There are peculiar circumstances which influence my mind derived from the nature of the employment of stevedores. In very early times the seamen performed the duty of loading and unloading the ship. But afterwards, a division of labour took place, and this duty came to be assigned to a class of men, who had become skilful in this branch of their trade, and who did not proceed on the voyage. The Consulat de la Mer, chap. 74, is to this effect: "Les mariniers sont tenus de prendre les marchandises à la porte, mais ils ne sont point tenus de les stibader (de les arrimer) si du moins le seigneur du navire ne s'y est pas engagé, mais s'il s'y est engagé, il doit en convenir avec les mariniers. Cependant si le seigneur du navire est en lieu agreste, et que les marchands ne trouvent pas d'hommes propres à effectuer le chargement, moyennant salaire, les mariniers sont tenus de le faire, ainsi que le déchargement." The stevedore, like the seaman, has contracted with the master, in the language of this ordinance, because "le Seigneur du navire ni les merchands ne doivent point perdre leur voyage." His services have been performed on board of the ship when afloat and on the eve of a contemplated voyage, nor can I see in point of principle that his case can properly be distinguished from the mariner who though he did not actually proceed on a projected voyage was permitted to sue in the Admiralty for his wages, Wells vs. Osman, 2 Lord Raymond, 1044. It has been said in support of the protest that if the Court should maintain this sum it will give an evident advantage to this class of men over the shipping interest. I do, indeed, admit that will afford this advantage to them, namely that it will in many cases give to stevedores a remedy which they have not by common law. It is well known that no person leaving the Province can be arrested for a debt under £10, and even where the debt exceeds that sum, I do not think that it can be for the advantage of either party to be excluded from having their difficulties decided by a summary jurisdiction by which the matter in contest can be terminated before their witnesses leave the Province. |
||
| The Cherub - Selkirk. | ||
|
Judge Kerr. This is an action for wharfage brought against the
brig Cherub, and I am at a loss to conceive upon what principle
of law or policy, the ship in specie G can be considered as
hypothecated for such a debt. No instance has been mentioned in
which a remedy of this nature has been afforded to wharfingers in
a Court of Vice Admiralty, certainly never in this Court. What is the legal definition of wharfage, dues paid for landing of goods at a wharf, or for shipping or taking goods into a boat or barges from thence? For these dues the master is answerable either on an express or implied contract, or they may be chargeable to the owners or consignees of the goods, which goods may be detained as a lien for the wharfage. But being a duty arising out of local property, such dues can never be considered as a maritime debt for which the ship is answerable. |
||
| G.R. Bossé©1999-03. | Posted: Dec. 22, 1999. |
Updated: July 15, 2003. |
 |