VOL. XV.] EXCHEQUER CQURT REPORTS. 27 BRITISH COLUMBIA ADMIRALTY DISTRICT. 1913 MOMSEN PLAINTIFF; August 19. AGAINST THE SHIP AURORA, (No. 3). Shipping—Ship under arrest in prior action in rem—Subsequent action for equipping the ship—Section 4 of The Admiralty Court Act (U. K. )1861—Jurisdiction. Held, that the clear intention of section 4 of The Admiralty Court. Act (U.K.) 1861 is that as soon as,a creditor finds that a "ship or the proceeds thereof are under arrest of the Court" in pursuance of its valid process issued in that behalf, then he may bring his action, and the Court acquires immediate and irrevocable jurisdiction over any claim for building, equipping or repairing the ship. The burden is not cast upon the creditor who proceeds against a ship under arrest in a prior action_to show that such action must eventually succeed. THIS was an action for the equipping of defendant ship with a standard engine. The facts of the case are stated in the reasons for judgment. Trial commenced before Mr. Justice Martin,- Local Judge, at Vancouver, B.C., on 22nd May, 1913, and was continued at Victoria, B.C., on 28th June and 4th July, 1913. J. M. Price for ship: No jurisdiction to entertain action. Jurisdiction limited by section 4 of the Admiralty Courts Act, 1861. Arrest must be legal. Section 165 of Merchants Shipping Act, 1894, applies. E. A. Lucas for plaintiffs: Not now open to defence to take objection to want of j jurisdiction. Should have appeared under protest. Halsbury's . La*s of Eng-land (1). Hall v. Seward (2) The Vivar (3). At time of our action ship was under arrest. (I) Vol: 1, p. 87. (2) 3 Ex. CR. 268. (3) L.R. 2 P.D. 20.
28 EXCHEQUER COURT REPORTS. [VOL. XV. 1913 Nothing to show that Oliver action not within sec-MOMBEN . tion 191, of the Canada Shipping Act. V THE SHIP Mr. Price: Want of jurisdiction can be raised in AURORA. defence : it is a matter of substantive jurisdiction, not Reasons for Judgment. procedure, and may be taken notice of by Court at any time. MARTIN, Lo. J., now (August 19, 1913) delivered judgment. This is an action for the equipping of the Aurora with a 20 h.p. "Frisco" standard engine, for the price of $1,625. At the end of the trial judgment was given in favour of the plaintiffs on the facts, reserving for further consideration the point of law raised as to the jurisdiction of this Court to entertain the action; which point is based on section 4 of the Admiralty Courts Act 1861 (24 Vic. c. 10) as follows:- 4. "The High Court of Admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under arrest of the Court." It is admitted that at the time this cause was instituted the Aurora was under arrest of this Court in an action by one Oliver for seaman's wages, yet because Oliver's claim was for less than fifty pounds it is submitted that his action should never have been brought, and therefore the ship cannot be deemed to have been legally under arrest at the time this present action was begun, since section 165 of the Merchant's Shipping Act of 1894 provides that: "A proceeding for the recovery of wages not exceeding fifty pounds shall not be instituted by or on behalf of any seaman or apprentice to the sea's service in any superior court of record in her Majesty's dominions, nor as an admiralty proceeding
VOL. XV.1 EXOHEQUER. COURT REPORTS. 29 iaa any, court having admiralty '.jurisdiction in those 19 13 dominions, except— mOMSEN (i) Where the owner of . the ship is adjudged bank- 1= 08.7 rupt ; or Reasons 1 0 r (ii) where the ship is .under arrest or is sold by the Juaam"' authority, of any such court as aforesaid,, or (iii) where a court of summary jurisdiction acting under the authority of this Act, refers the claim to any such court; or (iv) where neither the owner nor the, master of the ship is or resides within twenty miles of the place where the seaman or apprentice is .discharged or put ashore." In answer to this contention it is first submitted (apart from other objections as to waiver, and the application of the said Merchants Shipping Act) . that once the fact of the arrest by this Court is established that of itself confers jurisdiction- ; and, furthermore as Oliver's action-is coming on for trial it is open to him to prove any one of the'four: exceptions to, section 165 which would entitle him to maintain his action even though his claim is under £50. In my opinion, after a careful° consideration of the matter, this submission should prevail. ' I think the clear intention of the'statute, section 4, is that as soon as a creditor finds that a "ship or 'the proceeds thereof are under arrest of the court" in pursuance of its valid process issued to the marshal 'in that . behalf, then he may without further ado bring 'his action for, and the Court acquires immediate and irrevocable jurisdiction,- over any-claim, for building, ,equipping, or .repairing- the ship. The burden is' not cast upon the litigant to show to this Court now that the original action under which the ship was arrested must eventually succed. It would indeed be an anomalous position to place this Court
30 EXCHEQUER COURT REPORTS. [VOL. XV. 1913 in to require it now to attempt to decide in this action Mo v. !azN the prophetic question of fact as to whether or not T A gE s~~ Oliver will be able, when his action comes to be tried, IIRORA. Rea so ns for to adduce evidence that will bring him, say, within the Judgment. fourth exception of section 165, and therefore be entitled to maintain his action, as another seaman was able to do before me in the case of Cable •v. The Socotra (1). In short it is the present fact of the arrest and not the future result of the action that determines the question of jurisdiction. It follows therefore that the question of law is also decided in favour of the plaintiffs and judgment will be entered for the full amount of their claim- with costs. Judgment accordingly. (1) (1907) 11 Ex. C.R. 301.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.