part xi

.; Pritchard, Admiralty Digest, tit. Jurisdiction. (W. G. F. P.)

UNITED STATES The source of admiralty jurisdiction in the United States is Article 3, sec. 2 of the United States Constitution:--``The judicial power shall extend to all cases of admiralty and maritime jurisdiction.'' The United States Supreme Court has declared that by virtue of these words the admiralty jurisdiction extends not only to the high seas but to the great lakes and the rivers connecting them, and to all public navigable waters in the United States (the ``Genesee Chief'' v. Fitz Hugh, 12 Howards U.S. Rep. 443), including even interstate canals (Ex. p. Boyer, 109 U.S. Rep. 629, the ``Robert W. Parsons,'' [1903] 191 U.S. 17), and is not confined to tide waters. The American colonies had vice-admiralty courts with an admiralty jurisdiction equal to the largest claimed by the English admiralty courts even under Edward III. When they became states they delegated to the federal government their several ``admiralty and maritime jurisdiction,'' using these words in the sense understood in every country in Europe, England excepted, and in the sense in which they had then been used in the colonies for a long time, and without reference to the very narrow jurisdiction of the English admiralty courts then existing (Waring v. Clark, 5 Howards U.S. Rep. 441).

It is settled as to the United States admiralty jurisdiction not that it is ``co-equal with that of the original English, or that of continental European admiralty, but is rather that defined by the statutes of Richard II., under the construction given to them by contemporary or immediately subsequent courts of admiralty'' (2 Parsons Adm. 176), and that it embraced all maritime contracts, torts, injuries or offences (De Lovio v. Boit, 2 Gallisons Rep. 398; Waring v. Clark, 5 Howards U.S. Rep. 441), and that it has never been restricted by the

## action of the common law courts as in England under Lord Coke (2

Parsons Adm. 166 n.; Waring v. Clark; De Lovio v. Bolt.)

Original admiralty jurisdiction was by the Judiciary Act of 1789 (U.S. Rev. Stats. sec. 563) granted to the United States district courts exclusively, except that concurrent original jurisdiction was given to United States circuit courts over seizures for slave trading, and condemnations of property used by persons in insurrection (sec. 629; sec. 5309), and in the coolie trade (sec. 2159), and by the act of the 3rd of March 1901; the supreme court of the District of Columbia is given the same jurisdiction as the district and circuit courts. The Supreme Court of the United States has no original jurisdiction in admiralty. All suits are brought in the first instance in the district court. Appeals lie, both on the law and on the facts, from a final decree of that court to the circuit court of appeals only, except in cases involving the jurisdiction of the court, the constitutionality of a law of any state or of the United States, or the validity or construction of any treaty of the United States, and except cases of prize and capital or infamous crime, in which cases of appeal lies directly to the supreme court. In cases of gravity and importance the Supreme Court may by certiorari review the judgment of the circuit court of appeals, but such cases are rare (re Lau Ow Bew, 141 U.S. Rep 587; Benedict's The American Admiralty, sec. 607). Formerly the Judiciary Act authorized an appeal from the district court to the circuit court, and thence to the Supreme Court. But the act of the 3rd of March 1891 (Ch. 517) abolished this and created the circuit court of appeals, making it the final appellate court in admiralty, except as above stated. In any case where the district judge is unable to perform his duties or is disqualified by reason of interest or of relationship, or has acted as counsel for one of the

## parties to the action, it may be removed to the circuit

court in that district (U.S. Rev. Stats. sec. sec. 587, 589 and 601). These are now the only cases in which admiralty suits can come before the circuit court (Benedict's Adm. sec. 321).

The subject matter in cases of contract determines the jurisdiction (the ``General Smith,'' 4 Wheaton U.S. Rep. 438), and not the presence or absence of tide, salt water, current, nor that the water be an inland basin or land-locked, or a river, nor by its being a harbour, or a port within the body of the county, nor that a remedy exists at common law. The admiralty courts have jurisdiction over all matters that concern owners and proprietors of ships as such; possessory actions and petitory actions to try title of a ship; cases of mariners' wages, wharfage, dockage, lighterage, stevedores, contracts of affreightment, charter

## parties, rights of passengers as such (the ``Moses Taylor,''

71 U.S. Rep. 411), pilotage, towage, maritime liens and loans, bottomry, respondentia and hypothecation of ship and cargo, marine insurance, average, jettison, demurrage, collisions, consortship, bounties, survey and sale of vessel, salvage; seizures under the laws of impost navigation or trade, cases of prize, ransom, condemnation, restitution and damages; assaults, batteries, damages and trespasses on the high seas and navigable waters of the United States; but not suits in rem for duties (Benedict's Adm. sec. 303a).

The U.S. Supreme Court has held in Peoples Ferry Co. v. Beers, 20 Howards U.S. Rep. 393, and in a series of subsequent cases that a contract to build a vessel is not a maritime contract (the ``Robert W. Parsons''). Contracts to furnish cargo for ships and to furnish ships to carry the cargoes are maritime contracts (Graham v. Oregon R. & N. Co., [1905] 135 Fed. Rep. 608).

Whenever there is a maritime lien, even though created by state statute as to a ship in her home port, it may be enforced by suit in rem in admiralty in the federal courts (the `` General . Smith''; the ``Lottawanna,'' 21 Wallace Rep. 558, Benedict's Adm. sec. 270). In all suits by material men for supplies and repairs or other necessaries for a foreign ship, the libellant may proceed against the ship and freight in rem or against the master or owner in personam (12th Admiralty Rule; Benedict's Adm. sec. 268; the ``General Smith''). Actions in rem and in personam may be joined in the same libel (Newell v. Norton, 3 Wallace 257; the ``Normandie,'' 40 Fed. Rep. 590). But a contract to furnish fishermen with clothing, tobacco and other personal effects for use on a voyage is not a maritime contract, and a court of admiralty has no jurisdiction to enforce it in rem (the ``May F. Chisholm,'' 1904; 129 Fed. Rep. 814). The state courts have no jurisdiction in rem over any maritime contract or tort (the ``Lottawanna,'' the ``Belfast,'' 7 Wallace Rep. 624). Admiralty jurisdiction in tort depends on locality; it must have occurred on the high seas or other navigable waters within admiralty cognizance (2 Farsons Adm. 347; the ``Plymouth,'' 3 Wallace Rep. 20; the ``Genesee Chief'' v. Fitz-Hugh, the ``Blackheath,'' [1903] 122 Fed. Rep. 112).

The U.S. Supreme Court in the ``Harrisburg'' (119 U.S. 199) and the ``Alaska'' (130 U.S. 207), after some conflict of opinion, held that the admiralty courts have no jurisdiction under the general admiralty law to try an action for damages for negligence on the high seas, causing death of a human being, while there was no act of Congress and no statute of the state to which the vessel belonged giving such right of action (Benedict's Adm. sec. sec. 275-309a), nor where such statute is that of a foreign country (Rundell v. Compagnie Generale, [1899] 94 Fed. Rep. 366).

Admiralty has jurisdiction in cases of spoliation and piracy, collision and proceedings by owners to limit their liability under U.S. Rev. Stats. sec. sec. 4281-9.

The United States admiralty courts have always had jurisdiction in matters of prize (The Prize Cases, 2 Black U.S. Rep. 635). The district courts have exclusive original jurisdiction (except that circuit courts also have jurisdiction when prize is taken from persons in insurrection), and the supreme court of the District of Columbia now has concurrent jurisdiction (U.S. v. Sampson, 1902, 187 U.S. 436) and appeals are direct to the Supreme Court. Special commissioners are appointed on the breaking out of hostilities to act under the orders of the district courts (U.S. Rev. Stats. sec. 4621, Prize Rule 9; Benedict's Adm. sec. 509; 680 Pieces Merchandise, 2 Sprague 233). These commissioners take the depositions of witnesses and report to the court the evidence upon which it adjudicates. Proceedings in prize cases must be in conformity with admiralty proceedings, where the seizure is on land (Union Insurance Co. v. U.S., 6 Wallace 759; 2 Parsons Adm. 174). The district courts have all the powers of a court of admiralty whether as instance or prize courts (Glass v. sloop ``Betsy,'' 3 Dallas 6). To adjudicate in matters of prize is one of the ordinary functions of that court (Benedict's Adm. sec. 509).

The admiralty courts have jurisdiction over crimes and offences committed upon vessels belonging to citizens of the United States on the high seas or any arm of the sea or any waters within the admiralty and maritime jurisdiction of the United States (U.S. Rev. Stats. sec. 5339). High seas include the great lakes ( U.S. v. Rogers, 150 U.S. 249). (J. A. BA.)

OTHER COUNTRIES

France, and countries following France.

In France, and in Belgium, Spain, Portugal, Italy and Greece --countries which have adopted codes based on the Code Napoleon--the civil, or, as it would have been formerly called in England, the ``instance,'' jurisdiction of the admiralty is exercised by the ordinary tribunals, and there are no separate courts of admiralty for this purpose. France and some other countries have special commercial tribunals, which deal with shipping matters, but also with ordinary commercial cases. France has also tribunaux maritimes commerciaux (Code disciplinaire et penal de la marine marchande du 24 mars 1852, loi du 11 mars 1891) to deal with maritime offences. Austria adopts the French law in commercial matters. Italy had tribunals of commerce, but has given them up. She has, however, by Art. 14 of her Merchant Shipping Code, given jurisdiction to captains of ports to decide collision cases when the sum in dispute does not exceed 200 lire.

Germany.

In Germany there are no special tribunals for admiralty matters. Kammern fur Handelssachen, commercial courts, have been established in Berlin and some of the principal seaports. These deal with shipping matters, but also with all other commercial suits.

Scandinavian nations.

In Denmark, Sweden and Norway there is a maritime code which came into force in Sweden in 1891, in Denmark in 1892, and in Norway in 1893. This was intended to be one code for the three countries; but each country as it finally adopted the code made some modifications of its own. Under this code there are in Norway permanent maritime courts for each town presided over by the judge of the inferior local civil court (civile underdommer), or if there be more than one such judge then by the president, with two assessors chosen out of a list. Temporary local courts, consisting of the same judge with two other members of nautical skill and knowledge, can be constituted in districts where there are no permanent courts. Appeals lie to the supreme court (Hoiesterei.) In Denmark maritime cases are brought before the local courts constituted for maritime and commercial causes (So-og-Handelsret.) In Sweden maritime cases are brought before local courts of first instance consisting of a judge and assessors. There is an intermediate appeal to courts of second instance, and then to the supreme court, which finally decides upon all causes civil and commercial.

Maritime cases in Holland are tried by the ordinary civil tribunals, with the same right of appeal.

Prize jurisdiction.

``By the maritime law of nations universally and immemorially received there is an established method of determination whether the capture be or be not lawful prize. Before the ship or goods can be disposed of by the captor there must be a regular judicial proceeding wherein both parties may be heard and condemnation thereupon as prize in a court of admiralty judging by the law of nations and treaties. . . . If the sentence of the court of admiralty is thought to be erroneous, there is in every maritime country a superior court of review. . . .'' (duke of Newcastle's letter to M. Michell, secretary to the embassy of the king of Prussia, 1753). ``So far as belligerent states do not make a practice of giving up the taking of booty at sea . . . they are required by international law to establish prize tribunals and thus give to their proceedings in the matter of prize a judicial character'' (v . Holtzendorff, Rechtslexikon, tit. ``Prisengerichte'').

In France till the death of the duke of Montmorency in 1632 prize matters were adjudicated upon by the admiral. The duke had sold the office of admiral some years before his death to Cardinal Richelieu; but about the period of the duke's death the office of admiral appears to have been abolished, and one of grand master of navigation established in lieu. This new office was first held by Cardinal Richelieu and continued till 1695. The grand master took the admiral's place in matters of prize; but in 1659 a commission of councillors of state and masters of requests was appointed to assist the grand master and form a Conseil des Prises. From this conseil there was an appeal to the Conseil d'Etat. When the office of admiral was restored in 1695 he exercised his jurisdiction in prize matters with the assistance of the Conseil des Prises. The appeal was then given to the Conseil Royal des Finances. The Ordonnance sur la marine of August 1681 regulated the procedure. This system continued till the Revolution. The last Conseil des Prises was appointed in 1778. A law of the 14th of February 1793 abolished the Conseil des Prises and gave cognizance of prize matters ``provisionally'' to the tribunals of commerce. On the 8th of November 1793 (18 Brumaire, an II.) this jurisdiction was taken from the tribunals of commerce and given to the Conseil Executif. Later it was given to the Comite de Salut Public. On the 25th of October 1795 (3 Brumaire, an IV.) the jurisdiction was restored to the tribunals of commerce. This was again altered on the 27th of March 1800 (6 Germinal, an VIII.), when a Conseil des Prises was established, consisting of nine councillors of state, a commissary of the government and a secretary, all nominated by the First Consul.

On the 11th of June 1806 an appeal was given to the Conseil d'Etat. It was disputed among French jurists whether the Conseil des Prises was to be considered as a body actuated only by political considerations or one exercising what the French term an ``administrative jurisdiction''; which is, as nearly as a parallel to it can be found in England, administration of justice between individuals and the state.

As most of the cases arising out of the great wars had been dealt with, an ordinance of the 9th of January 1815 suppressed the Conseil des Prises and directed the Comite du contentieux of the Conseil d'Etat to prepare the remaining prize matters for decision by the Conseil d'Etat. Such prize matters (probably including captures for trading in slaves) as required to be dealt with till 1854, appear to have been dealt with by this body; an ordinance of the 9th of September 1831 directing that the proceedings before the Conseil d'Etat should be private, was held to show that the jurisdiction was not political but administrative.

An Imperial decree, however, of the 18th of July 1854 restored the Conseil des Prises, with appeal to the Conseil d'Etat. This was for the war with Russia. A similar decree was published on the 9th of May 1859 for the war with Austria in Italy.

On the 28th of November 1861 a further decree ordered that the Conseil instituted in 1859 should so long as it was kept in being decide all prize matters; and this Conseil has decided on prizes taken in the wars with Mexico and Germany and in Cochin China. It consists of seven judges and a commissary of the government. An appeal to the government in the Conseil d'Etat can be brought within three months. It is then decided by l'Assemblee du Conseil d'Etat.

Under the First Empire there were commissions des ports, commissions colonials and commissions consulaires, established mainly to collect materials for the Conseil des Prises, but sometimes, when the ship and cargo were clearly those of the enemy, proceeding to actual condemnation.

In Prussia Regulations of the 20th of June 1864 established a prize council consisting of a president and six associates with a law officer. An appeal was given to an upper prize council (v. Holtzendorff, Rechtslexikon, tit. ``Prisengerichte'').

By a law of the German empire of the 3rd of May 1884 the legality of prizes made during war has to be decided by prize courts, and the imperial government is authorized to determine the particulars as to the seat of such courts, their members and their proceedings (Reichsgesetzblatt of 1884, p. 49). Prize courts were established under this law on the occasion of the East African blockade in 1889 (Reichsgesetzblatt of 1889, pp. 5 sqq.).

In Italy Art. 14 of the Merchant Shipping Code provides that prize matters shall be tried by a special commission established by royal decree. On the occasion of the war with Austria such a special commission was established by royal decree of the 20th of June 1866. For the war with Abyssinia a fresh commission was established by royal decree of the 16th of August 1896. The composition of this commission, which was slightly different in character from that established in 1866, was as follows: (a) a first president of a court of appeal or a retired one, or a president of a section of the council of state or of cassation; (b) two general officers of the navy; (c) a member of the ``contentious part'' of the diplomatic service; (d) two councillors of a court of appeal; (e) a captain of a port, with a commissary of the government and a secretary; five to be a quorum. There was no appeal; but the ordinary right to have recourse to the Court of Cassation at Rome, if the prize commission proceeded without jurisdiction or in excess of jurisdiction, was preserved.

By an ordinance of the 27th of March 1895 regulating the whole matter of prize in Russia, two sorts of prize tribunals of first instance were contemplated--port tribunals and fleet tribunals. The latter are for captures made by ships of the fleet, and are to be composed of some of the principal officers of the fleet. The former are to have presidents named by the emperor from among those ``qui font partie de l'administration maritime judiciaire''; the other members are to be appointed by the ministers of the navy, justice and foreign affairs. The court of appeal is formed by the council of the admiralty with the addition of two members of the senate and a nominee of the minister of foreign affairs (Clunet, 1904, p. 271).

On the occasion of the Russo-Japanese war, port tribunals were established under the authority of this ordinance by the lord high admiral, the Grand Duke Alexis, on the 13th of March 1904, at Sebastopol--Port Alexander III., Port Arthur and Vladivostock (Clunet, 1904, p. 479; London Gazette, 22nd March 1904). Many cases were heard before these tribunals and on appeal.

The procedure in prize cases under the old law of Spain is described in Abreu (Felix Joseph de Abreu y Bertodano), Tratado juridico Politico sobre Presas de Mar (Cadiz, 1746). On the occasion of the war with the United States the Spanish government published a proclamation stating the circumstances in which captures were to be made and prizes taken; but information is lacking as to the

## particular constitution of the prize court or courts.

In Greece prize questions are apparently left to be tried by the ordinary tribunals. See decision of Civil Tribunal of Athens, 1898, No. 3385 (reported Clunet, 1900, p. 826).

Turkey during her war of 1877 with Russia established a prize court and a court of appeal. The ordinance establishing these courts is set out in the London Gazette of the 6th of July 1877.

Japan established, in the war (1904-5) with Russia, prize courts at Sasebo and Yokosco with a court of appeal at Tokyo. Advocates were heard before these courts, and the procedure seems generally to have been modelled upon European patterns.

AUTHORITIES.--Clunet, Journal du droit international prive, cited shortly as Clunet; v. Holzendorff, Rechtslexikon, Leipzig, 1881; De Pistoye et Duverdy, Traite des prises maritimes, Paris, 1855, vol. ii., tit. viii.; Phillimore, International Law, vol. i., vol. iii.