« AnteriorContinuar »
payment of the freight; and this is the great security of the master and owner.
7. If freight must be sued for at common law, the master and owners of the ship may sue for the same by letter of attorney, and the freight shall not be stopped for damage done to the goods, or embezzlements: For the course of common law is not to stop by way of compensation, but a verdict passes for the freight upon the charter-party, according to agreement, and so the owner of the goods is defeated of his satisfaction, according to the maritime law for damage or embezzlements, besides the inconveniency of multiplying actions; whereas the whole may be more properly decided by one and the same action in the admiralty, and many times is done upon a summary hearing, in a week or fortnight's time; by which means the great expence of money and time, two of the most necessary supplies of trade, is prevented.
8. Misdemeanors and nuisances in navigable rivers were formerly, and may again, with great conveniency, be settled under the admiralty-jurisdiction. The common law doth not, and, if the admiralty should not intermeddle, there will be a failure of justice in those cases.
A merchant lives beyond sea, or cannot be found, but has a ship come into a port, or navigable river, or, it may be, has goods on board, and owes some of their majesties subjects money. One of these arresteth the ship or goods by an admiralty-warrant, and thereupon bail is given to the action: Is it not reasonable, that their majesties subjects should proceed to sentence, and have the benefit of the law of nations? Shall a prohibition be sent, to stop proceedings, when the common law can give him no remedy? Or, that one of their majesties courts should hinder the other, when they can give no manner of relief themselves? This is certainly to be redressed, if trade is to be encouraged, since it preserves foreigners and fugitives from paying their just debts, by reason that their persons cannot be apprehended.
If these matters may be thought fit to be resettled in the admiraltycourt, it is humbly desired, that leave may be obtained for bringing a bill into parliament for that end, so that it may be positively determined what causes shall belong to that jurisdiction; for the old statutes that restrain it, as they have in the late reigns been put in execution, are the terror of merchants, owners, material men, and others that live by sea-trade, insomuch that they dare not think of suing in the admiralty for their just damages and debts contracted by maritime employments, but are forced contentedly to sit down with such their losses, for fear of being sued at the common law upon the action of double damages; which is very hard, when thereby they are not only deprived of the best relief, but, in many of the foregoing cases, have no ways to begin an action at common law.
This jurisdiction has been several times settled, particularly by the king in council, in the year 1632, after which it being interrupted, it was in the late times thought necessary to be resettled by ordinances of parliament, as may be seen in Scobell's Collection, c. 112. anno 1648. /. 147. and c. 23. anno 1649. /. 16. Since the restoration, it has been again interrupted by prohibitions, which gave occasion for several petitions from many considerable merchants, masters, owners, and material men; one of which petitions is hereunto annexed, but they could have no relief during the two last reigns. However, it is hoped, that this parliament will restore so necessary an encouragement of trade and navigation, the chiefest wealth and support of the kingdom.
It must be expected, that some of the common lawyers will oppose such a bill, for the same reasons that some civilians will promote it: But either of their private advantages is not to be regarded, but only the publick good. It may be easily demonstrated, that the admiralty anciently had cognisance of many more causes than are abovementioned: and on the other side it is as plain, that prohibitions have been awarded in most, if not all of them. But arguments, drawn from thence, would do no more than tell the world, that one jurisdiction oppressed the other, according as it had power, and between both did grind and harrass the subject, and is a better reason for setting the jurisdiction, than for serving the private ends of either party. And there need be no more other weight laid upon what is urged from thence, but rather to pass by all disputes of that kind, and not so much examine, whether prohibitions have been duly, or unduly, sent to the admiralty, of which there will be no end; (as may appear by the several fruitless tracts that have been published to that purpose on each side) but rather to consider, what is fit and expedient to be done for the general advantage of the kingdom; and what courts, what laws, and which profession can most easily and readily administer justice to the subject in the foregoing cases.
At Whitehall, the eighteenth of February, 1632. Present the King's most excellent Majesty.
Lord Keeper, IxIrd Viscount Wimbledon,
Lord Archbishop of York, Lord Viscount Wentworth, Lord Treasurer, Lord Viscount Falkland,
Lord Privy -Seal, Lord Bishop of London,
Earl Marshal, Lord Cottington,
Lord Chamberlain, Lord Newburgh,
Earl of Dorset, Mr. Treasurer, Earl of Carlisle, Mr. Comptroller,
Earl of Holland, Mr. Vice-Chamberlain, Earl of Danby, Mr. Secretary Coke, Lord Chancellor of Scotland, Mr. Secretary Windebanck.
This day his majesty being present in council, the articles and propositions following, for the accommodating and setting the differences concerning prohibitions arising between his majesty's courts at West. minster, and his court of admiralty, were fully debated, and resolved by the board. And were then likewise, upon reading the same, as well before the judges of his highness's said courts at Westminster, as before the judge of his said court of admiralty, and his attorney, general, agreed unto, and subsigned by them all in his majesty's pre. sence. And the transcript thereof ordered to be entered into the register of council-causes: And the original to remain in the council, chest.
1. If suit shall be commenced in the court of admiralty, upon contracts made, or other things personally done beyond the sea, or upon the sea, no prohibition is to be awarded.
2. If suit be before the admiral for freight or mariners wages, or for the breach of charter-parties, for voyages to be made beyond the sea, though the charter-parties happen to be made within the realm, and although the money be payable within the realm, so as the penalty be not demanded, a prohibition is not to be granted. But if suits be for the penalty, or if the question be made, whether the charter-party were made or not, or whether the plaintiff did release, or otherwise discharge the same within the realm? That is to be tried in the king's court at Westminster, and not in the king's court of the admiralty; so that first it be denied upon oath, that a charter-party was made, or a denial upon an oath, tendered.
3. If suit shall be in the court of admiralty, for building, amend, ing, saving, or necessary victualling of a ship against the ship itself, and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted, though this be done within the realm.
4. Likewise the admirai may inquire of, and redress all annoy, ances and obstructions in all navigable rivers, beneath the first bridges that are any impediments to navigation, or passage to, or from the sea; and also try personal contracts, and injuries done there, which concern navigation upon the sea; And no prohibition is to be granted in such cases.
5. If any be imprisoned, and upon Habeas Corpus, if any of these be the cause of the imprisonment, and that be so certified, the party shall be remanded.
Robert Heath, Richard Hutton, Francis Crawley,
Thomas Trevor, William Jones, Henry Marten,
George Vernon, George Croke, William Noye.
Humphy Davenport, James Weston,
Examinat. T. Meautts,
At Whitehall, the twenty-second of February, 1632.
Lord Keeper, Lord Viscount Falkland,
Lord Archbishop of York, Lord Cottington,
Lord Privy-Seal, Lord Newburgh,
Earl Marshal, Mr. Treasurer,
Lord Chamberlain, Mr. Comptroller,
Earl of Salisbury, Mr. Secretary Coke,
Lord Viscount Wentworth, Mr. Secretary Windebanck.
It was this day thought fit and ordered, that such prohibitions as have been sent into the admiralty-court, from any of his majesty's courts at Westminster, falling under the rules contained in the articles agreed on, and signed in his majesty's presence, the eighteenth of this instant, as well by all the judges of his majesty's said courts at Westminster, as by his judge of the admiralty, and his attorneygeneral, should be withdrawn, and superseded; whereof the judges of the said courts, from whence such prohibitions have issued, are hereby prayed and required to take knowledge, and to give order therein accordingly.
The Jurisdiction of the Court of Admiralty settled.
The lords and commons assembled in parliament, finding many inconveniences daily to arise, in relation both to the trade of this kingdom, and to the commerce with foreign parts, through the uncertainty of jurisdiction, in the trial of maritime causes, do ordain, and be it ordained, by authority of parliament, that the court of admiralty shall have cognisance and jurisdiction against the ship or vessel, with the tackle, apparel, and furniture thereof, in all causes, which concern the repairing, victualling, and furnishing provisions, for the setting of such ships or vessels to sea, and in all cases of bottomry; and likewise, in all cases of contracts made beyond the seas, concerning shipping or navigation, or damages happening thereon, or arising at sea in any voyage; and likewise, in all cases of charterparties, or contracts for freight, bills of lading, mariners wages, or damages on goods laden on board ships, or other damages done by one ship or vessel to another, or by anchors, or want of laying of buoys; except, always, that the said court of admiralty shall not hold pleas, or admit actions upon any bills of exchange, or accounts betwixt merchant and merchant, or their factors.
And be it ordained, that, in all and every the matters aforesaid, the said admiralty-court shall and may proceed, and take recognisances in due form, and hear, examine, and finally end, decree, sentence, and determine the same, according to the laws and customs of the sea, and put the same decrees and sentences in execution, without any let, trouble or impeachment whatsoever, any law, Statute, or usage to the contrary heretofore made, in any wise, notwithstanding; saving always, and reserving to all and every person and persons, that shall find or think themselves aggrieved by any sentence definitive or decree,having the force of a definitive sentence, or importing a damage not to be repaired in the definitive sentence, given or interposed in the court of admiralty, in all or any of the cases aforesaid, their right of appeal, in such form as hath heretofore been used, from such decrees or sentences in the said court of admiralty.
TO THE KING'S MOST EXCELLENT MAJESTY.
The humble Petition of several Merchants, Owners, and Masters of Ships, Victuallers, and Material-men, belonging to the City and Port of London. Shetceth, That it has been anciently the wisdom of the kings of England, your majesty's most royal progenitors, so to provide for the wealth and good of commerce, and navigation, as to give it all encouragement, and to remove all obstructions from it, your wealth, happiness, and honour much consisting in it.
And more particularly, your majesty's most royal father of blessed memory, in the year 1632, taking notice of some differences, concerning prohibitions then arisen, betwixt his majesty's then courts at Westminster, and his majesty's court of admiralty, was graciously pleased to hear them himself in full council, and upon full debate thereof had, the eighteenth of February, 1632, propositions for accommodating thereof were by his majesty and the board resolved upon, and upon reading thereof, as well before the judges of his majesty's court at Westminster-hall, as before the judge of his highness's said court of admiralty, and his attorney-general, agreed unto, and subsigned by them all, in his majesty's presence, and entered in the council-book, and the original to remain in the council-chest, a copy of which order, agreement, and propositions is hereunto annexed.
That the same order, so made by your majesties said royal father, and the board, and agreed unto, and subscribed by all the then judges of England, did very much tend to the advancement of the navigation and commerce of this nation, to the encouragement both of the merchants and seamen, to the credit of shipping, with the materialmen, to the furtherance of ship-masters, and building of ships, the wooden walls of the kingdom, and to the keeping a right understanding abroad; for that the foreign contracts made beyond the sea, and the matter of charter-parties for voyages, all ship-building, repairing, victualling of ships, mariners wages, and other matters of mere admiralty, did from thenceforth proceed in their due course in the said court of admiralty, by the rule of the civil and maritime laws, well known abroad as well as here, and that without either being prohibited or interrupted: By which encouragement, and for that as well