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Navigating the Lower Saint Lawrence in the 19th Century.

Quebec Gazette #3872 24/07/1828.

	IN THE COURT OF VICE-ADMIRALTY FOR LOWER CANADA. Wednesday, 16th July 1828. In the case of the ship Georgiana.
	Judge Kerr. - I expected in this suit brought by two joint salvors for services rendered to the ship Georgiana, there would have been filed a plea to the jurisdiction, alleging that the whole River St. Lawrence is within the body of the District of Quebec. But though no such declinatory exception has been offered, and that all parties have submitted to the authority of the Court, I feel myself from the respect I entertain for the Court of King's Bench at Quebec, which has so often awarded writs of prohibition to this Court, founded on an opinion, entertained by that Court, that the whole River St. Lawrence is infra corpus comitatus^G, to state the grounds on which I hold a contrary opinion, and on which I proceed to decree salvage to the petitioners. Nor is this alone a reason for my entering largely upon this disputed question, for if this Court has no jurisdiction over the River St. Lawrence, as is intimated to me, by an authority which I regard. I am bound by law to notice that I have none, and the consent of the parties cannot give to this Court a jurisdiction which does not belong to it. (2 T. R. 664:- 2 Bur. 746). Though I have the honour to fill a seat in that Court, which has awarded these writs of prohibition, it cannot be conceived that I feel insensible to the important duties which are confided to me by the Lord High Admiral, under whom I hold my commission in this Court, and the oath I have taken to administer justice according to the civil and maritime law and customs of the Admiralty, to the best of my judgement. If therefore I should appear on this occasion to resist the opinion of another Court claiming superiority of power over the Admiralty, it is a matter of deep regret to me that this question of local jurisdiction has not long since been set at rest in a tribunal where alone it can be properly and finally decided. It is an axiom in law that "a matter relating to the seigneury cannot be tried within the seigneury." So this question relative to the Province, on which a difference of opinion is entertained between a British and a Colonial Court can never be properly decided within this Province. We must look beyond its limits for a tribunal where it can be viewed and determined aloof from all the partialities and prejudices which attach to the subject here. In the threshold of this subject a question suggests itself, whether the River St. Lawrence, as far as the tide flows and reflows, was previously to the capture of Quebec, in the year 1759, subject to the jurisdiction of a Court of Admiralty? This inquiry may not decide the question of local jurisdiction as far as respects this court, but it will illustrate and confirm the principles on which this question, in my judgment, must be determined. It appears from an edict of Louis XIVth, in the year 1717, intituled, "Reglement concernant les sièges d'amirauté" that His Most Christian Majesty, referring to the Ordonnance de la Marine of 1681, expresses his regret that this Ordinance had not been acted upon in the French colonies. But it is fit that I recite the words: "Attendu qu'il n'y a point encore d'amirauté établie dans les colonies de l'Amérique, ni des Indes Occidentales, ce qui donne occasion à toutes sortes de juges et des praticiens de s'attribuer la connaissance des affaires maritimes, sans aucune capacité ni connaissances des ordonnances, ce qui cause un préjudice considérable au commerce et à la situation de navigation, que les Rois prédécesseurs de Sa Majesté ont toujours regardé comme affaires très importantes, et qui ne pouvaient être bien administrées que par des ordonnances particulières et par des jurisdictions établies exprès pour le faire observer." The edict then proceeds to establish a Court of Admiralty at Quebec. The jurisdiction of this Court in maritime affairs was equally extensive as that of the Court of Admiralty in Scotland "in questions of charter parties, freights, salvage, bottomries, &c." for the Consulat de la Mer, under the head of "Usage et coutume de la mer," thus sets out the authorities of the Admiral: "A Monsieur l'Amiral, ou à ses Lieutenants Généraux, Juges, et Officiers de l'Amirauté appartient la connaissance, jurisdiction et définition de tous faits de navigation, tant pour raison des contrats passés, pour la guerre navale, que pour la marchandise, pêcherie, qu'autres actes ou choses quelconques, qui concernent, dependent, ou touchent le fait de la navigation, et non seulement de la mer, hâvres, côtes et grèves d'icelle: mais aussi des rivières navigables, rivages et ports exclus, tant en villes, bourgades, que dehors, et ce, tant que le grand flot de mer se peut étendre." So great and so extensive was the jurisdiction of the French Court of Admiralty at Quebec, as exercised before the conquest of Canada! In respect to the High Court of Admiralty of England, of which this Court is a subordinate branch of its criminal jurisdiction will best show the local extent of its civil and maritime authority. Lord Stowell, in his charge to the Grand Jury in October 1802, informs them that they are to enquire "all offenses committed on the high seas, offenses of every description, as the law now stands, committed in every part of the globe where the ocean flows: the local extent has been immemorially the same." Of course, the jurisdiction extended both before and at the time of the conquest to piracy and murder, and to all other offenses committed on the River St. Lawrence. The locality of its civil and maritime authority was not less extensive, so that cases of salvage and collision arising on these waters before the conquest of Quebec, were also subject to the jurisdiction of the Court of Admiralty. On the establishment of the Civil Government at Quebec in the year 1763, the interests of trade and navigation were not omitted, and commissions under the Great Seal of the High Court of Admiralty were then granted to Governor Murray as Vice Admiral, and to Mr. Potts as Judge of the Court of Vice Admiralty. This Court being an emanation from the Dominion of the Lord High Admiral, his civil and maritime authority was imparted to it; nor is this merely by implication, for the Judge's commission runs in the following words, "of any matter, cause or thing, business or injury whatsoever, done, or to be done, as well in and upon the sea or public streams, fresh waters, ports, rivers, creeks and places overflowed whatsoever within the ebbing and flowing of the sea or high water mark, as upon the shores and banks adjoining to them, or either of them, together with all and singular their incidents, emergencies, dependencies, annexed and connected causes, complaints, contracts, and other premises aforesaid, or any of them, however the same may happen to arrive, be contracted, had, or done, to bear and determine according to the civil and maritime laws and usage of our High Court of Admiralty of England." It is difficult to conceive the jurisdiction of a court to be better or more distinctly defined, and the Admiralty being thus in an undisputed and exclusive possession of jurisdiction over these waters, it may now be enquired to what manner and by what law its cognizance in civil and maritime affairs has been transferred to the Provincial Court of King's Bench at Quebec. One ground on which that Court has proceeded to award writs of prohibition to the Court of Vice Admiralty, in cases of salvage, collision and pilotage in a homeward voyage, and that too where the proceedings were in re^G, is that the 14th Geo. III, cap. 83, has declared "that in all matters of controversy relative to property and civil right, resort shall be had to the laws of Canada as the rule for the decision of the same." But it is not easy to imagine that the Parliament, in passing that Act, had any other object than to secure to His Majesty's Canadian subjects the enjoyment of these laws and customs, by which their real and personal property were subject, without reference to laws relating to matters of revenue, navigation and commerce, which are founded on great purposes of public convenience. Indeed, if the words "property and civil right" are to be taken in a more general sense, what must follow as a necessary consequence, but that the Parliament of Great Britain had pledged itself to continue to His Majesty's Canadian subjects their Court of Admiralty as it subsisted at the time of the conquest, together with the "Ordonnance de la Marine," by which that court was guided in its decisions? Another ground on which the Court of King's Bench has rested its claim to an exclusive jurisdiction over this great river, is the Royal Proclamation of the year 1792, by which the Province of Lower-Canada is divided into districts and counties, and wherein the River St. Lawrence is described to be with their limits. But this Proclamation must be taken in reference to the Statute 31, of His late Majesty, cap. 31; and what other object had that Act but to give a new Constitution to the Province of Lower-Canada, or the Proclamation, but to convey information to the inhabitants of the mainland and the islands contiguous, for what counties they were to return members to serve in the House of Assembly? Both the Statute and the Royal Proclamation are silent on the subject of Admiralty jurisdiction, and it is a rule of law, that the jurisdiction of a superior court cannot be taken away but by express words. - 3 Term Rep. p. 40. Rep. p. 11. The River St. Lawrence has been assimilated to the River Thames, but why more to the Thames, than to the Severn, the Mersey, the Tyne or the Dee; the mouth of all which are stuarca Maris^G? (Softly's Case, I East 471,) or to the Firth of Forth in Scotland; over which, notwithstanding you may see from shore to shore, the Admiralty of Scotland has alone exercised a jurisdiction exclusive of the Court of Session? Lord Coke, it is true, says, "Whatever you can see from shore to shore is within the body of a county." But Mr. Justice Buller, in Smart vs. Wulff, observes, "With respect to what is said relative to Admiralty jurisdiction in 4 Just. 135, I think that part of Lord Coke's work has been always received with great caution and frequently contradicted. He seems to have entertained not only a jealousy of, but an enmity against that jurisdiction." The Colonial Court has even carried the principle farther than Lord Coke, for the River St. Lawrence is at its embouchure 90 miles wide, and in many places at least 50, and there it is impossible to see from shore to shore. The Legislature in passing the 34th of His late Majesty, by which the Colonial Courts were created, has not been less anxious to separate their jurisdiction from that of the Admiralty, than His Catholic Majesty was when he published the "Règlement" of the year 1717, for that Statute declares that they "shall have original jurisdiction to take cognizance of, hear, try and determine, in the manner hereinafter enacted, all causes, as well civil as criminal, and where the King is a party, except those purely of Admiralty jurisdiction." So guarded was the Legislature to prevent all clashing between the common law Tribunal and this maritime Court, that words of express reservation of its authority occur in no less than five clauses of this Statute, and in the Provincial Statutes cap. 35, sec. 47, of His late Majesty. Yet, in matters purely of Admiralty jurisdiction, namely, salvage, collision and pilotage in the River, and where the proceedings were confined to the thing in specie^G, wherein, as Mr. Justice Buller (in Minatone vs. Gibbons 3 T.R. 270.) says, "the Admiralty has the sole jurisdiction, the Court of King's Bench at Quebec has directed writs of prohibition to be issued to this Court"! And what has been the consequence but to prevent the parties from obtaining any relief, for the Court of King's Bench cannot proceed against the thing in specie, and the ship attached, as has often occurred, leaving the Province, no remedy could be pursued here! There is another view of this subject, which is at once novel and impressing - "All jurisdiction implies superiority of power," and the Court of King's Bench, in attempting to assume to itself the exclusive cognizance of all matters arising on the waters of the St. Lawrence, not only sets itself above the Court of Vice Admiralty, but asserts a superiority over the High Court of Admiralty of England itself, from which the Court here derives all its authority. In depriving it of the cognizance of maritime affairs, it abridges the High Court of Admiralty of part of its appellate jurisdiction. The original jurisdiction of that High Court over the St. Lawrence, as far as the "ocean flows," the limits of its jurisdiction being immemorially the same, if these petitioners had instituted their claim there, it would be found that a decision of the Provincial Court would not be admitted as judicial authority, to maintain a declinatory exception to the jurisdiction of the Court. To pursue this subject further, it ought not to be forgotten that the Commission in His Majesty's name to the present judge of the Vice Admiralty Court, is dated in 1797, three years after the establishment of the Courts of King's Bench, and admitting for an instant that the Royal Proclamation of the year 1792, had virtually included the river St. Lawrence within the District of Quebec, and had transferred the jurisdiction over its waters to the Provincial Courts, it may be asked if these letters patent to the judge, did not, in effect, create afresh a court having civil and jurisdiction over the river in virtue of the Royal Proclamation? The very Act, it must be observed, under which the Provincial Courts derive their existence, reserves to His Majesty the power "to erect, constitute and appoint Courts of civil and criminal jurisdiction;" and the King has created this Court of Judicature to administer the civil and maritime law of His Empire according to the usage of the High Court of Admiralty. These letters patent in which the authority of the judge is so largely and minutely defined, both in respect to locality and subject matter, are in effect the erection of a court, and bear no resemblance to a commission granted to a member of a tribunal composed of two or more judicial functionaries; the individual there is only appointed a component part of that court, for the powers and authorities of which reference must be made to the Act by which it is constituted. I should have forborne entering so widely upon this question, had not attempts been made by some of the law practitioners to draw matters properly cognizable in this Court ad aliud examen^G, and to destroy its independence and authority. I can tell these gentlemen that I shall to the utmost of my power resist all such attempts, and maintain the rights and authorities which are specially granted to me by the Lord High Admiral. For the due administration of my functions I am answerable to my Sovereign, and if I err in my judgements here, either in the principal subject which comes before the Court, or in any incidental matter that may arise out of it, and Homo sum, humani nil à me alienum puto.^G I shall never repine at being set right in appeal to the High Court of Admiralty of England, whose appellate jurisdiction is expressly reserved in my commission, and in which alone my errors are to be corrected. Having thus disposed of the question of local jurisdiction, I come now to the proceeding which has given rise to these observations. It appears that the Georgiana, a vessel of about 300 tons burden, when taking in a cargo of timber at St. Michel, about 15 miles below Quebec, was, on the morning of the 31st May last, driven from her moorings in a heavy gale of wind. She had then no anchor nor had she a pilot on board. The master being unacquainted with the navigation of the river, hoisted two signals, one of distress and the other for a pilot. In this situation she was seen, drifting up the river at 5 in the morning, by Captain Atkinson, from his ship, the Quebec Packet, then taking in a cargo at Cape Rouge, nine miles above this port. That gentleman, with an alacrity, which is highly creditable, got into his boat, and with four of his own crew, and the two petitioners, who were employed in loading his ship, proceeded to the assistance of the Georgiana. Captain Atkinson, on coming on board, directed her sails to be bent, and having a knowledge of that part of the river, he gave orders to steer towards a sand bank, to which she was carried, and afterwards she was moored in safety. The services of the petitioners have been admitted, but an attempt is made to underrate their merits, and to show that as they were occupied only four hours on this duty, they are only entitled to claim pro opere et labore^G , which it is said, would amount to little more than they would have earned if they had remained on board the Quebec Packet. I have long thought that there is no part of the world in which the principles which lead to a liberal renumeration in cases of salvage, can be more properly, or should be more strictly applied than to services of this nature, accruing on this great river. The length of inland navigation nearly extending 700 miles; the dangers to which ships are exposed arising from the number of islands, shoals, sunken rocks and shifting sands, increased by the inclemency of a Canada climate, and the floating masses of ice which are encountered in the spring and autumn, are all circumstances which point to a liberal reward in cases of salvage. I am quite sure, from years of observation, that many lives and much property would have been saved, if a more munificent disposition at this port had been shown to salvors. Salvage, among all civilized and commercial nations, is a favoured tenet^G, and has not been considered as a mere claim of right, founded on the time consumed, and labour bestowed in the service performed. "The principle on which the Court of Admiralty proceeds" (says Lord Stowell in the case of the Beckford 3 Rob. 255,) "leads to a liberal renumeration in salvage cases, for it looks not merely to the exact quantum of service performed in the case itself, but to the general interests of the navigation and commerce of the country which are greatly protected by exertions of this nature. The fatigue, the anxiety, the determination to encounter danger, if necessary, the spirit of adventure, the skill and dexterity which are acquired by the exercise of that spirit, all require to be taken into consideration. What enhances the pretensions of salvors most, is the actual danger they have incurred, the value of human life in that which is, or ought to be principally concerned in the preservation of other men's property, and if this is the case it is most highly estimated." I perfectly agree with the counsel for the ship Georgiana, that the service performed by these salvors is not to be rated in the higher class; but still the promptitude with which they proceeded with Captain Atkinson, to assist the Georgiana, from which at that time was flying a signal of distress; the degree of personal risk they ran in proceeding to her when it blew a gale of wind; their determination to encounter danger if necessary, and the actual service accomplished, entitles them to some recompense much beyond the wages of a day labourer. All circumstances considered, I decree that there be paid to George Middleton, he being a seaman, the sum of £7 10s, sterling, and to James Sullivan, being a landsman, the sum of £5 sterling; and I also decree against the ship the expenses incurred to the petitioners in this suit.

Posted:
Dec. 3, 1999.

Updated:
July 15, 2003.