CHAP. III. will give the major part of the owners power to freight out their vessel to sea, if even the minority dissent. Although the exercise of the Admiralty Jurisdiction in disputes among part-owners of ships was doubted in earlier times by the Courts at Westminster as an undue assumption of authority, these doubts were more the offspring of jealousy than of reason, and no direct decision on the point against such authority is to be found on the contrary, there are several decisions which confirm it, and the Court has now unquestionable authority in cases in which part-owners cannot agree respecting the employment of a ship, to decree possession of the ship to the majority, or to arrest and detain such ship upon the application of a part-owner, or a minority of part-owners, who dissent from the intended employment of such ship, and to compel the other partowners, or the majority, to enter into such a stipulation as will secure him, or the minority, to the full amount of the value of his or their share. The origin of this stipulation or bail bond is as follows:-The Court of Admiralty having jurisdiction in causes of disputes between partowners respecting the possession or employment of their ship, and the manner of exercising that jurisdiction being by its process against the ship, retaining it, namely, under arrest, until the sense of the majority of owners had been discovered, in fact, until the cause of possession was determined; and in consequence of representations having been made to the Court in numerous instances of the damages sustained by ships lying for any length of time in harbour, the Court was induced to let them go, on bail being substituted in the place of the ship itself, to answer the demand set up in the cause of possession; and in a case reported in the 4th vol. of the Admiralty Reports, the taking of bail to answer a demand in a cause of possession is mentioned as practice of recent date. "The Admiralty Court has repeatedly

The bail bond, its origin.

Jurisdiction of the Admiralty Court unques

tioned in compelling this se

forfeited the

gone the length of taking these stipulations in favour of a CHAP. III. dissentient co-partner, and upon his application that a security may be given for the safe return of the vessel upon the voyage to which he dissents, or otherwise, for the estimated value of his own share. This practice has in some earlier instances been subject to some curity, and in doubts, but it has entirely survived those doubts, and pronouncing it has been formally recognised by the courts of common bond. law, and forcibly recommended by the emphatical expressions alluded to, that ships were made to plough the ocean, and not to rot by the wall.' There is no doubt, therefore, of the legality of the initiatory measure here taken, of compelling such security to be given. The Court in this operation is not merely ministerial, for it compels the party authoritatively to find such security; it likewise in the usual termination, compels the party to pay the sums stipulated in the bond given for the security. The bail bond contemplates no other object than the safe return of the vessel, or in default thereof, the payment of the stipulated sum. The nature, then, of the bail bond, or stipulation given Court of A. by the owners who employ the ship, regards only the event of the loss of the vessel and the payment of the estimated value (in that case) to the dissentient partowner, and in case of such stipulation being given in the Admiralty Court, that court has no more power then, than it had originally to entertain matters of account between them, viz. between the part-owners employing the ship, and the part-owners dissenting.

* Lord Stowell, in the Apollo. 1 Haggard's Admiralty Reports, 306. See also the case of the Margaret, 2 ibid. 275., where Sir C. Robinson declined to pronounce forfeited a bond given for the safe return of a vessel to a particular port of this kingdom, the vessel having been carried in distress into another port and there arrested in suits of salvage and of wages, holding that while the vessel was within the jurisdiction of the Admiralty Court, safe and unsold, the application was premature.

cannot in such causes entertain

questions of

accounts be

tween part

owners.

CHAP. III.

Court of A. cannot decree bail for any earnings,

for semble the minority bear no loss, and

derive no profit.

In the Apollo*, two part-owners, A. and B., had, at the instance of another part-owner C., entered into such security for the safe return of the ship in the sum of 30007., being the estimated value of C.'s share. The vessel was lost, a monition issued from the Admiralty Court against A. and B. to pay into the registry the sum of 3000l. to the use of C. A. and B. objected, praying that the Court would direct the registrar and merchants to inquire what loss, costs, damages, &c., had been sustained by reason of the interference of C., in his having by several methods prevented the ship from proceeding to sea; but Lord Stowell over-ruled such objection by reason that the bail bond related solely to the safe return of the ship, or to the payment of the stipulated sum in case of her loss, and that as a co-partner could not originate a suit for accounts in the Court of Admiralty, neither could it hang such a suit upon the peg of a stipulation which never contemplated any such matter; and the Court therefore decreed immediate payment of the entire amount. It is also clear that the Court of Admiralty cannot decree bail for any earnings that might be made in the intended voyage; if it did, the inevitable consequence would be, that the Court would be obliged to determine intricate and contested causes in relation to such earnings-causes which the Admiralty Court has always avoided, leaving them to another course of inquiry.† And it appears that when this stipulation is given by the majority, the dissentient partowners, i. e. the minority, bear no portion of the expenses of the outfit, and are not entitled to share in the profits of the undertaking; but the ship sails wholly at the charge and risk, and for the profit of the others and

* 1 Haggard's Admiralty Reports, 306.

† See The Peggy. 4 Robinson's Admiralty Reports, 304.

:

Anon. 2 Chan. Ca. 36., Trin. T. 32 Car. 2.; and by Holt, C.J. in Boson v. Sandford, Carth. 63.

in a late case it was held, that a part-owner who had CHAP. III. arrested the ship by process out of the Admiralty Court

and had obtained security for his share, was bound to pay his proportion of the expense of the repairs and outfit incurred previous to the arrest, but not entitled to any share of the profits of the voyage.*

variably given

The Court of Admiralty has, therefore, undoubted Possession injurisdiction over the possession of British ships, and to the majority, invariably decrees the possession and employment of the ship to a majority of the owners, upon their entering into a stipulation to indemnify the minority. From a late case it appears that the same practice will not pre- never to the vail where application for possession is made by an equal moiety of the owners.

minority,

equality of the

if no appearance be given for the other moiety.

In that case†, the Court, at the suit of the owners of an nor to an equal half-part of a vessel, had decreed the usual warrant interest, even arresting the vessel till bail should be given to answer for her safe return; no appearance having been given for the other moiety, the Court was moved to grant a monition against them, to show cause why possession of the ship should not be decreed to them, the vessel lying high and dry on the beach, in a condition to become every day deteriorated. The authorities cited in support of the motion were Godolphin ‡, Molloy §, by which it was endeavoured to be shown, that parties with a moiety of interest have the same remedy as a majority. The Egyptienne || was also cited, in which case the Court was moved to decree possession to the owner of a moiety, the owner or owners of the other moiety not having appeared; Lord Stowell refused to grant the

*Davis v. Johnstone, 4 Sim. 539.

†The Elizabeth and Jane. 1 W. Robinson's Admiralty Reports, 278.

Introd. to View of Admir. Jurisdiction.

CHAP. III. motion, but allowed a monition to issue calling upon

the other interest to appear and show cause; but there the monition was not extracted and the point dropped. The following is an abridgment of what fell on this point, from the present learned judge of the Admiralty, holding that the Court had no jurisdiction to decree possession of a vessel to be given up to owners of a moiety, on the ground that the vessel is not to be employed and is in a state of deterioration; "for," said the learned judge, "a similar application might be made with respect to the owners of less than a moiety; because the very same reason would apply with equal force to the owners of a very small interest as to the possessors of a moiety. Circumstances similar to these must have occurred upon former occasions, but it does not appear that in any previous instance has the process of this Court been enforced for the purpose for which it is now prayed; and unless I was prepared to go the whole length—if this monition to show cause were to issue, and no sufficient cause were to be shown, unless I was prepared to follow it up by an attachment, it would be erroneous on my part to threaten, where I could not carry the threat into effect. Now, having looked at all the authorities on this subject which have fallen within my cognizance, it appears to me that this jurisdiction is denied to the Court; that the only case in which this Court can interfere in what may be termed a cause of possession, is where a majority of interest is vested in the persons applying, and where disputes arise among part-owners." As an additional reason against so doing, the Court mentioned, that if it were to attempt to exercise this power, it would have to consider the particular grounds on which the motion is founded, and to determine whether this or that voyage was the most beneficial for the owners, or whether it was expedient to wait the chance of a more advantageous voyage.