View of the Admiral Jurisdiction, Chapter 11
CHAP. XI.
Of Charter parties made on the Land, and other things done beneath the firſt Bridge next to the Sea; vel infra fluxum & refluxum Maris; and how far theſe may be ſaid to be Cognizable in the Admiralty.
TOuching this Subject it hath been aſſerted, That if a Charter-party be made within any City, Port-Town, or County of this Realm, although it be to be performed upon or beyond the Seas, yet is the ſame to be tryed and determined in the ordinary courſe of the Common Law, and not in the Court of Admiralty. aCoke Part. 40 Inſtit. c. 22. in the Anſw. to the fourth Objection.This is excluſive as to the Admiralty in matters of Charter-parties made upon the Land; But yet it is agreed and reſolved, Hill. 8. Car. upon the Caſes of Admiral Juriſdiction, That though the Charter-party happen to be made within the Realm, ſo as the penalty be not demanded; A Prohibition is not to be granted. bCroke Rep. Hill. 8. Car. Reſolution upon the Caſes of Admiral Jurisdiction.Were it otherwiſe, or that the Juriſdiction of the Admiralty might not take Cognizance of ſuch Maritime Contracts though made on Land, then by thereunto adding what was formerly obſerved out of the ſame place, cCoke ibid. in the Anſw. to the ſecond Objection.viz. That the Court of Admiralty hath not any Jurisdiction of any Contracts made beyond Sea for doing of any act within this Realm, or otherwiſe, wherein the Common Law can adminiſter Juſtice; It would follow, that if (according to the one of theſe Aſſertions) ſuch Maritime Contracts when made upon the Land, though to be performed upon or be…ond the Seas, may not be tryed or determined in the Court of Admiralty; and when (according to the other of theſe Aſſertions) made beyond the Sea for doing of any act within this Realm, &c. the Court of Admiralty hath not any Juriidiction thereof; In ſuch ca…e it muſt neceſſarily follow, that the Juriſdiction of the Admiralty (being thereby excluded the Cognizance of ſuch Maritime Contracts both ſides the water) muſt keep to Sea in all weathers, yet ſcarce retain the libert, (if I may ſo ſay) of a confinement Super altum mare, according to the energy of that ſuggeſſion reported in the Caſe aforeſaid, of Suſans againſt Turner; dNoy Rep. in Caſ. Suſans againſt Turner.where it is ſaid, That if a Suit be commenced in the Admiralty for a Contract ſuppoſed to be made Super altum mare; Q. Whether in matters of dubiovs Juriſdiction, meerly depending upon future Contingency of proof, a bare Surmize at Common Law; may not as rationally expect the relief of a Prohibition, as a naked allegation at Civil Law the count…nance of a Litis Conteſtation. So that the Law is good, if it be uſed lawfully.the Defendant upon a Surmize or Suggeſtion, That it was made upon the Land within the Realm, may have Prohibition. According to which comnutation, with the premiſes conſidered, the Juriſdiction of the Admiralty ſeems to be hard put to it both by Sea and Land; Nor need it ſeem any thing ſtrange that the Juriſdiction of the Admiralty ſeems excluded of Cognizance in ſuch caſes of Charter-parties, whether made at Land or beyond Sea, if a bare Surmize or Suggeſtion according to the …aid Report in the Caſe of Suſans againſt Turner, may work as to a Prohibition againſt the Admiralty when a Suit is there commenced for a Contract not appearing other then made Super altum mare. According to theſe premiſes, if the Charter-party be made at Land, though to be performed upon or beyond the Seas, it is to be tryed in the ordinary courſe of the Common Law; And if the Contract be made beyond Sea, for doing any act within the Realm, &c. the Court of Admiralty hath not any Juriſdiction thereof; And if the Suit be commenced in the Admiralty for a Contract ſuppoſed to be made upon the Sea, then by a Surmize or Suggeſtion, that it was made upon the Land, a Prohibition (according to the ſaid Caſe) may be had. Thus in matters of Charter-party this ſide the Sea, the Common Law ſeems to claim the Cognizance; in Contracts made beyond Sea, the Admiralty ſeems not to be allowed any Juriſdiction; and in Contracts ſuppoſed to be made upon the Sea, the Defendant upon a Surmize may have a Prohibition; But no Fiction can ſpunge the Ocean, nor turn the Sea into dry Land, or the Bay of Mexico into Middleſex, till it be proved as well as ſurmized, In the ſaid Caſe of Suſans againſt Turner, where it is ſaid, If a Suit be in the Admiral Court, for a Contract ſuppoſed to be made Super altum mare, the Defendant upon a Surmize that it was made upon the Land within the Realm, may have a Prohibition. It is there farther added in theſe words, viz. And that it may come in iſſue if it was upon the Land or upon the Sea. But by the Juſtices, their Rule is, that upon ſuch a Suggeſtion they ſhall not grant a Prohibition after Sentence paſs'd. So that, be the verity of the Fact (as to the Super altum mare) in it ſelf never ſo liquid, yet being primarily but ſuppoſed (as all things in judicio, though in themſelves never ſo clear, never ſo true, yet muſt be alledged before the Court can proceed) a Counter-ſuppoſition or Croſsſurmize Therefore to prevent this Inconvenience, and obviate ſuch Objections as theſe; before any Prohibition doth actually iſſue upon ſuch Surmizes, the Courts of Weſtminſter have ever uſed to prefix a day wherein to ſhew cauſe, if any, why a Prohibition ſhould not be granted. So that although there be a Surmize, yet there is no Surprize in the Caſe.may work (according to this) as to a Prohibition, to bring it in iſſue whether it was upon the Land or upon the Sea; And ſo it ſeems as if ſcarce poſſible in any Caſe to avoid a Prohibition, for the realleſt Truths and the undenyableſt verities under the Sun, if in judicio & foro contentioſo, can be at firſt but ſuppoſed truths; for the Court, if it proceed Legally, cannot but proceed Secundum allegata firſt, & Probata next.
Charter-parties, Bills of ſale of Ships, and the like Maritime Contracts are commonly made according to the Law of Oleron, and frequently wic… a clauſe expreſs to that purpoſe inſerted therein; the Civil Law, the Laws and Cuſtomes of the Sea, whereby the Admiralty proceeds, takes notice thereof, and can judge and determine accordingly; how far other Laws, that are accommodated to matters of another element, though in them…elves and in their proper ſphere moſt excellent, can do the like, is no part of the deſign of this compendious Treatiſe to determine. But that Prohibitions have been granted upon Charter-parties, is undenyably true. eCoke, ubi ſupra. Mich. 31 H. 6. Rot. 315. in Banc. Hill. 2. Ph. & M. Rot. 130. Cr. Hil. 17 El. Rot. 410. Cr. The Common Law in ſome Caſes doth take notice of Conjunct: Perſona, but not as does the Civil Law.Ye…, the lamentable Caſes of poor Mariners, for their Wages have not of late unhappy years eſcaped Prohibitions, although it be not denyed but they may all joyn in one Libel in the Court of Admiralty, whereas at the Commo… Law (if they muſt there proſecute)▪ they may not bring their Actions otherwiſe then ſeverally and apart, to their greater expence and charges, reſpect being not had to the identity of the Caſe, or the poverty of the Dem…ndants, to introduce a joynt Action. To this purpoſe it is reported, fWinch Rep. Eaſter TermThat where judgement was given in the Court of Admiralty againſt one Jones a Maſter of a Ship at the Suit of certain poor Mariners for their wages, a Prohibition was prayed upon a Suggeſtion that the Contract was made at London in England; but the Prohibition was denyed, becauſe he had not ſued his Prohibition in due time, viz. before a Judgement given in the Court of Admiralty. Whereby it ſeems as if it was not the nature of the Caſe, though for Mariners wages, that prevented the Prohibition, but the unſeaſonable ſuing for it, viz. After Judgement given in the Court of Admiralty.
Touching the Juriſdiction of the Admiralty in ontracts made, and other things done upon the Rivers beneath the firſt Bridges next the Sea, where it ebbs and flows, and in the Ports, Creeks, Havens, Peers, Sounds, Harbours, Rhodes, Bayes, Channels, and other places infra fluxum & refluxum maris; It hath been aſſerted, gCoke par. 4. Inſtit. c. 22. Anſw to the firſt Object.That by the Laws of this Realm the Court of Admiralty hath no Cognizance, Power, or Juriſdiction of any matter within any County, either upon Land or Water; So as it is not held material, whether the place be upon the water, infra fluxum & refluxum maris, but whether it be upon any water within any County; And it is farther added, hIbid. Anſw. to the ſixth Object.That for the death of a man, and of Mayhem, (in theſe two Caſes only) done in great Ships, being and hovering in the main ſtream only beneath the Points of the ſame Rivers, nigh to the Sea, and no other place of the ſame Rivers, nor in other Cauſes, but in theſe two only, the Admiral hath Cognizance; yet probably it will not be denyed, but that by Expoſition and Equity of the Statute of 15 R. 2. cap. 3. (whence, as ſuppoſed, that aſſertion is taken) he may inquire of and redreſs all annoyances and obſtructions in thoſe Rivers, that are any impediment to Navigation or paſſage to or from the Sea: and alſo try all perſonal contracts and injuries done there which concern Navigation upon the Sea. And no Prohibition is to be granted in ſuch Caſes. iCroke Rep. Hil. 8 Car. Reſolution upon the Caſes of Admiral Juriſdiction. Subſcribed 4 Feb. 1632. by all the Judges of both Benches. Beneath the Bridges] So the Expoſ. Terms of the Law, verb. Admiral.The Reader may at his leiſure conſult the ſaid Statute, whether it ſays, [In the main ſtreams only beneath the Points of the ſame Rivers nigh to the Sea] or whether the Statute doth not ſay, [In the m…in ſtream of great Rivers, only beneath the Bridge of the ſame Rivers nigh to the Sea] For the difference may be material. In the Caſe of Palmer againſt Pope it is reported, kHob. Rep. Caſe. Palmer verſus Pope. Mich. 9 Jac.That the Statute ſaith, ad prim…s pontes. And in the Caſe of Leigh and Burley, lOwen Rep. in caſu Leigh againſt Burley. Mich. 7 Jac.It is ſaid, that the 15 of R. 2. is miſ-printed, viz. that the Amiral ſhall have Jurisdiction to the Bridges: for the Tranſlator miſtook Bridges for Points, that is to ſay, the Lands end. So reported in the ſaid Caſe. The words of the Statute are, viz. [In the main ſtream of great Rivers, only beneath the, &c. of the ſame Rivers nigh to the Sea, and in no other places of the ſame Rivers the Admiral ſhall have cognizance] It is not denyed by the Statute, but the Admiral hath Juriſdiction in Caſes of Mayhem and Death in the main ſtream of great Rivers; Rivers are not found beneath the Lands end; if Bridges be miſtaken by the Tranſlator for Points, and Points be taken for the Lands end, then Rivers and the main ſtream of great Rivers ſhould be beneath the Lands end, where they empty them…elves into the main Ocean. Again, the words of the Statu…e are, [In the main ſtream of great Rivers only beneath the, &c.] And the words in that Ca…e of Leigh againſt Burley are, [That the Admiral ſhall have Juriſdiction to the, &c.] queſtion is, whether there alſo be a miſtake in the Tranſlation? For the difference is great and very ſignificant between to a place, and beneath a place. In the ſaid Caſe of Leigh againſt Burley, it is ſaid, That the Statute of 15 R. 2. is miſ-printed; yet probably the Preſs followed the Copy, and in ſo doing it may be excuſed from an errour of miſ-impreſſion; In the ſaid Caſe it is alſo ſaid, That the Tranſlator miſtook Bridges for Points, that is to ſay, the Lands end; A right impreſſion of a miſ-tranſlation (if any ſuch be) ſeems not to render the word Bridges, in ſtead of Points or Lands end, as miſ-printed, ſo long as the Preſs agrees with the Copy. Pons in the Latine rendred into Engliſh ſeems rather to be a Bridge then Points, or a Lands end; Pons in the Latine ſounds more like Points then Bridge, and ſo doth Pont in the French, which yet is a Bridge, and not Point or Lands end; which in the French ſeems to be more properly rendred by the word La poincte or un poinct; But a Point of Land at which Rivers or Waters meet, ſeems to be moſt properly rendred by the word Bec in the French, which ſeems ſufficiently diſſonant from the word Points. And thoſe Navigators, that by experience know the meaning of doubling the Point, probably do …eldome ſail over Rivers, either great or ſmall, beneath ſuch Points. But this only by way of obſervation upon the ſaid miſtake, as reported in the …aid Caſe of Leigh againſt Burley; and not in the leaſt by way of any thing elſe in reference to what is not of any private interpretation, but reſerved only for …uch as unto whom are ſpecially committed the Oracles of the Law.
The Aſſertion, [That it is not held material, whether the Place be upon the Water, infra fluxum & refluxum maris, but whether it be upon any water within any County] was formerly hinted; yet poſſibly it may be material to know what waters are held to be within a County, ſpecially if the queſtion put by Doderidge Serjeant in the ſame Caſe of Leigh againſt Burley be duly conſidered. In which Caſe it is reported, That the Lord Coke ſaid, That the Admiral ſhould have no Juriſdiction where a man may ſee from one ſide to the other: but the Coroner of the County ſhall inquire of Felonies committed there; which was held to be good by all the other Juſtices; And he gave this difference, that where the Place was covered over with Salt-water, and out of any County or Town, there eſt altum mare: but where it is within any County, there it is not altum mare: but the tryal ſhall be per Vicenetum, of the Town. Doderidge Serjeant demanded this queſtion, The Iſle of Lunday de Corpore Comitatus of Devonſhire, and lyes twenty miles within the Sea; whether is that within the County. Foſter, If the Sea there be not of any County, the Admiral hath Jurisdiction, or elſe not. In this Caſe it is ſaid, that the Admiral hath no Juriſdiction where a man may ſee from one ſide to the other; which in a tranſparent Horizon a man may do from the Lands end to the Caſſi…erides, or Iſles of Scilly, which lye ſeven Leagues at leaſt thence diſtant in the main Ocean; and almoſt the like from ſome part of England to the other ſide the water over to France. The ſaid Iſles of Scilly are de Corpore Comitatus Cornubiae, yet doubtleſs the high Admiral of England (notwithſtanding both ſides are mutually viſible) hath Juriſdiction on the interflux there, though the ſaid word [within] ſhould be taken in a ſenſe as large as the Ocean it ſelf. And whereas it is ſaid, that the Admiralty hath not any Juriſdiction of Contracts, Pleas, or Quereles made or done upon a River, Haven, or Creek, within any County of this Realm, probably it is not thereby meant or intended to be limited or reſtrained otherwiſe then according to the Statute-Law, the Laws and Cuſtomes of the Realm, whereof thoſe of the Sea are a part; the Realm of England conſiſting of more elements then one. And if you conſult the Topography of ſeveral of the Harbours, Havens, Ports, Rhodes, Bayes, Sounds, and Creeks of this Kingdome, probably the Admiralty might have in more ſenſes then one a more liquid demonſtration, then ſo to be disjuri…dictioned by any meer ſuppoſition, which had no ſmall operation to the prejudice of the Admiralty in the days of the late Licentious Times, when fancies were much in faſhion; thereby reducing Juriſdictions to uncertainty, the common fate of all things, in the ſaid days of Legerde Brain, but eſpecially to the needle…s protelation of Juſtice, as to Merchants and Mariners in the Legal proſecution of their Maritime Contracts, notwithſtanding the Reſolutions upon Caſes of Admiral Cognizance, ſubſcribed by all the Reverend Judges and Juſtices of both the Honourable Benches in the Eighth year of the Reign of our late Soveraign Charles the Firſt, of bleſſed Memory; wherein among other things relating to that Juriſdiction, it was then unanimouſly reſolved, lCro. Rep. Hil. 8 Car. 1632.That in Caſes ariſing upon the Thames, the Admiralty hath Jurisdiction, ſpecially in the point mentioned in the Statute of 15 R. 2. And by Equity thereof may inquire of and redreſs all annoyances and obſtructions in thoſe Rivers that are any impediment to Navigation, or paſſage to or from the Sea, and in all Navigable Rivers. And no Prohibition to be granted. But in the Caſe of Goodwin againſt Tompkins, it ſeems ſomething otherwiſe; According to the Report, mNoy Rep. in Caſ. Goodwin againſt Tompkins.the Caſe was this. A Suit was in the Admiral Court for ſetting a Ship in a Wharf to the damage of the Plaintiff: So that none could come to his Wharf, which is ſaid within the Bill to be within the Ward of Saint Mary Hill: And a Prohibition was granted: upon a Suggeſtion, that it was good for the ordering of Ships. A Conſultation was granted, hut afterwards upon good advice and opening the matter, a Superſedeas to the Conſultation w…s granted, & quod Prohibitio ſtet; for the wrong and fact is ſaid to be within a County and Ward; and for that it does not belong to the Admiral: for all Civil Contracts or Treſpaſſes done upon the River of Thames, or any other River, that is proper to the Common Law, are tryable in that County, which is next to the Bank, and that ſide of the River where the Fact was done; but in Criminal matters upon any River, that is given to the Admiral by the Statute of 28 H. 8. cap. 15. Thus it is reported. But the Reſolution aforeſaid, is, That in caſes ariſing upon the Thames the Admiralty hath Juriſdiction, ſpecially in the point mentioned in the Statute of 15 R. 2. And no Prohibition to be granted.