Tuesday, 20th November, 1838. LADY AYLMER-NADEAU. Collision between a steam-boat and a bateau, both exclusively LADY AYLMER. employed in the harbour of Quebec, not cognisable by this Court. JUDGMENT.-Hon. Henry Black. This is a suit brought against the steam-boat Lady Aylmer, for running foul of a bateau in the harbour of Quebec, wherein the promoter seeks to recover the damages arising from the alleged collision. The owners of the steamboat have appeared under protest, and assigned as reasons for their protest, "that the place where the collision complained of happened, was within the harbour, county, and district of Quebec, and between a bateau, the use of which was limited to the harbour of Quebec, and not used for sea navigation, and a steamboat; and that the steamboat was then used as a tow and ferry-boat, also in the harbour of Quebec; and that such collision not having taken place on the high seas and between ships or vessels navigating or intended. to be used in the navigation of the high seas, this Court has no jurisdiction over the matter." The protest is supported by affidavits uncontradicted by the promoter which establish the fact therein set forth. It cannot be pretended that the jurisdiction which the Court is called upon to exercise in this case is founded upon the locality of the act complained of, inasmuch as that act was committed within the district of Quebec, indeed in the harbour of Quebec (a). If then the Court (a) The Friends, 24th June, 1837, MSS. LADY AYLMER. have jurisdiction, that jurisdiction must be founded upon the maritime nature of the subject-matter of the suit. Collision between ships is a matter of a maritime nature, but notwithstanding its being of such a nature, the High Court of Admiralty of England has not entertained jurisdiction in cases where the collision took place in ports or harbours within the body of a county (b). The Admiralty was ousted of its jurisdiction merely because of the locality where the act was done, notwithstanding the maritime character of that act. The act here complained of does not seem to me to be of a maritime character. In no respect could the bateau, which is alleged to have suffered from the collision, be considered as subject to the jurisdiction of this Court. In certain cases of collision the statute of the Imperial Parliament, 2 Wm. 4, c. 51, has conferred jurisdiction on the Vice-Admiralty Courts in the possessions abroad, or confirmed them therein notwithstanding the locality of the act complained of. But there is nothing in the statute to give to this Court jurisdiction in cases of collision, when, before the passing of that statute, this Court would not by reason of the subject of the collision have had jurisdiction. By the maritime law I apprehend that an action did not lie in the Admiralty in cases of collision in a harbour within the body of the county, between a ship or vessel and a boat or bateau of the description and used for the purposes for which this bateau was employed: and there is nothing in the statute to extend the jurisdiction of this Court to the subject-matter of this suit; for, the statute is confined in its operation to the case of damage to a ship by collision." It is to be observed also, that without the statute it would probably be found that this Court would have no jurisdiction in cases of 66 (b) The Public Opinion, 2 Hagg. p. 398. But see 3 & 4 Vict. c. 65, s. 6, passed on 7th collision in the harbour of Quebec (c); and as the Court LADY Aylmer. owes its jurisdiction to the statute, it could not be extended beyond the case of collision between ships, even though the collision in question in this cause, were of a maritime nature, which I have already said I think it is not (d). I must therefore pronounce for the protest, and dismiss the suit. Maguire, in support of the protest. (c) George Okill Stuart's, (d) See case of Raft of Timber, Lower Canada, Rep. p. 163, in 2 W. Rob. 251. note. CAPTAIN Ross. Tuesday, 20th November, 1838. CAPTAIN ROSS-MORTON. Seaman going into hospital for a small hurt, not received in the performance of his duty, not entitled to wages after leaving the ship. JUDGMENT.-Hon. Henry Black. This is a suit brought for subtraction of wages under the following circumstances. The promoter shipped as steward on board the barque Captain Ross, Digby Berkeley Morton master, on the 27th of April last, on a voyage from Liverpool to Montreal, or any other ports in British North America, and back to the port of Liverpool, or any other port or ports in Great Britain or Ireland, at the rate of 21. 158. sterling, per month, and received one month's pay advance. The promoter served on board the ship from the time of his shipping down to some days after the arrival of the ship at Montreal, in the early part of June last. He then complained of having a sore small toe, and wished to go into hospital; upon which the master sent for a surgeon, who after examining the toe was of opinion that amputation was the most effectual means of relief; and the next day was appointed for the operation. The promoter, however, swerving, the operation was not performed, and he left the ship-without notice to the master or his consent-and went into the General Hospital at Montreal, where he appears to have remained from the 8th of June to the 5th of July, during which time his toe was taken off. In the meantime the vessel sailed on her return voyage, and the promoter afterwards came to Quebec, where he has since remained; and on the return of the ship to this port, in the month of October last, attached her for his wages. It appears years before that he had had his toe frostbitten about two By the law of England and of the other maritime countries of Europe and America, the whole wages are given to the seaman, even when he has been unable to render his service, if his inability has proceeded from any hurt received in the performance of his duty or from natural sickness happening to him in the course of the voyage (a). But even in this case the seaman is not justified in leaving the ship and going into hospital, unless the sickness or hurt be sufficiently serious to justify such course. In this case the hurt complained of was not received in the performance of the promoter's duty, but anterior to his entering into the service of the ship; and did not, as appears from the evidence in the cause, require his leaving the ship. It was his duty at least to have given notice to the master before going to hospital. It was his business also-if the case had been such as to justify his remaining here during the period he was in hospital, and proceeding against the ship as upon a continuing engagement down to the time of his return to the port of shipment-to proceed to that port in another ship, upon being in a condition to do so. In which case the wages which he would have earned on the return voyage would go in deduction of his claim against the barque Captain Ross; and it appears here that he might have earned on such return from 4l. to 5l. per month, being nearly double the rate of wages which he was to (a) Abbott on Shipping (Mr. Justice Story's edition of 1829), p. 442; Chandler v. Grieves, 2 Hen. Black. 606, note (a); 2 Boulay Paty, 232; Poth. Louage des Matelots, No. 189; Orde. 1681, Liv. iii. Tit. 4, art. 11; 1 CAPTAIN Ross. |