Polynesian., 1861-01-12
No. 81.

to whether or not the alleged illegal act of the
respondent is a marine tort. 1t cannot avail 10
say that II this Is tort it created by statute
subsequent to the adoption of the Constitution and
Is therefore not included in the clause " all cases
OF admiralty and maritime jurisdiction - for to
say that such clause embraces only cases which
had arisen, and been entertained, previous to the
adoption of the Constitution, is obviously unsound
as will appear by applying the same principle to
the next preceding clause Of the article referred to-
relating to suits affecting ambassadors and consuls
Nor is it necessary, in my opinion, that the Leg
islature should have expressly enacted that the
Court of Admiralty should have jurisdiction in cases
arising under Section 65l of the Civil Code.
think it Is sufficient reason for holding that the
jurisdiction does attain, If the act prohibited is
marine tort, and if the remedy redress prescrib-
ed by the Statute is such Court of Admiralty
is competent to afford. Where such is the case, It
seems to me that party plaintiff has a right to
appeal to Court of Admiralty, although Court
of common law may also have concurrent jurisdic-
tion OF the matter. And the objection that has
sometimes been made, and always Overruled, to the
jurisdiction of Admiralty Courts in the United
States, that the defendant did not have the benefit
of trial by jury, has but little weight here where
the Court may at its discretion impannel special
jury to try any issues of fact involved in the cause
Civil Code, Section ,238.)
1t seems to me too that the redress allowed to
the party injured in this class of cases is such as
may be enforced by Court of Admiralty with
greater facility than by court Of conmon law, at
least in all cases where it becomes necessary to
pursue the remedy as against the vessel. If the
suit was brought at common law, and continued
up to Judgment, against the master, and it then
became necessary to have against the ves-
sci IN rem, that would necesstate, in my opinion,
resort to the Court of Admiralty. But if the
suit is originally brought in admiralty, that court
is competent by its peculiar process and powers,
TO afford the proper redress as against both the
master and the vessel.
But it is argued on the part of the respondent
that the act of conveying debtor out of the King
dom without a passport is not tort done to the
creditor, or, at all events, not tort-such
tort or injury can be made the basis of a suit
| i'll admiralty. | am free to confess that such was
my own impression at first but, upon examina-
ton. think this objection cannot be sustained.
III the master of vessel conveys any person out Of
the Kingdom without passport, in contravention
of the law referred to- his act is first violation of
a local maritime regulation, punishable by fine
and then it is made by force of the statute civil
tort, or wrong, affecting the rights of any person
to whom the party conveyed away may be indebted,
for which, and for the fine. the master first and
then the vessel may be held responsible to the
amount of the fine and debt. The injury to the
creditor is created by statute. and it is measured
pecuniarily by the amount of his debt.
Counsel for the respondent, while admitting
that locality is the test to discover whether or not
any act complained Of is marine tort argued that
this court cannot entertain a suit founded upon
tort or injury, which was not committed upon the
person or property of some one, such person or
property being at the time on the sea. In other
words, as | understood his argument, that all ma
rine tOrts trespasses. But 1t will be seen by
reference to the authorities, that there is class
of wrongs, or tOrts, for which redress is given in
admiralty, which are not trespasses to the person
or property of the party suing. Curtis Ad. Di-
gest, p. 50; Conkngs U. S. Admiralty, p. 1921
In the case Of Plummer Us. Webb, Mason's Rep.
$50, it was decided that father may maintain
suit in admiralty for a tortious abduction of his
minor son, on voyage the high seas, in the
nature of an action per guod serutiun anisit, for
it is continuing tort. The same doctrine was
held in the case of Sherwood us. Hall ct al, 5
Summers Rep. 127, where the suit was maintained
against the owners of the vessel in which the mi
nor had been employed as a seaman. So in the
case of Steele rs. Thatcher, Wares Reports IS,
where the suit was by the father against the
ter of the vessel In that case the question of
jurisdiction was raised, as in the case now before
US, it being contended that admitting the masters
conduct to be Illegal and that he might be held to
for it at common law, the subject matter Of
the libel not within the admiralty jurisdiction.
The objection was overruled by the Court, and
Judge WARE, after learned examination Of the
point said In this the question as to the ju-
risdction must be determined by the locality of the
act, whether it done the high seas. The act,
complained of by the lbellant, is the shipping his
son, a minor, at Portland, and transporting him
to parts beyond the sea, to wit, to Grenada, in
the West Indies without his consent. The contract
was made on shore; but the contract, admitting is
to be Illegal. does not constitute the tort The ex-
ecution OF the contract is that in which the tort
consists, and that was on the high seas"
If these cases are sound law, and have no
- = l.. ~ a. -
me that the admiralty jurisdiction in the case
now before is clear for, if the respondent could
be held to answer in admiralty, for tortious acts
beginning on shore, tOrti0ri, he may be held to
answer there for the statutory tort of conveying
debtor out of the kingdom without passport,
which, to use the language of the court in the
of the United States u.s. La Vengeance, Il Curtis
Decisions of Supreme Court U. s., p. 230 y is
entirely water transaction - and must, from the
nature of the case, and the insular situation Of
the kingdon, have been done upon the high sea
so that, in point of locality, even Lord CoKE. with
all his jealousy of the admiralty jurisdiction,
would probably have adnitted that it attached in
cases of this nature, for he says, Z" Alum mare is
out of the jurisdiction Of the common law. and
within the jurisdiction of the Lord High Admi-
ral." (Co. Lift. 26O, az
As additional cases in which it has been held
that courts of admiralty can award damages for
consequential injuries, arising from tortious acts
although not direct trespasses, | may refer to
Chamberlaine Us. Chandler, 3 Mason's Rep. 242;
the Betsy Gaines. 2 Haggard's Rep. %. These,
however, not referred to as being precisely in
point in the present instance.
have examined the subject involved in this case
with considerable care, because, where, with Us,
the courts and judges administer all the sew
eral branches of Jurisprudence, there is some dan
ger of the boundaries between those several
branches being lost sight of; and because concur
in the opinion verbally expressed by the Chief
Justice, that, while will not refuse to hear in
admiralty, what may properly be propounded
there, we ought, at the same time, to preserve to
the subject. whether plaintiff or defendant, the
right to common law trial, 80 far as the law