Feb. 12.] THE NEW ZEALAND GAZETTE. 235

Despatch.—“Colonial Courts of Admiralty Act, 1890.”

Colonial Secretary’s Office,
Wellington, 5th February, 1891.

THE following despatch, received from Her Majesty’s Principal Secretary of State for the Colonies, is published for general information.

P. A. BUCKLEY.

(Circular.) Downing Street, 20th September, 1890.

SIR,—Referring to the Earl of Derby’s circular despatch of the 7th of March, 1885, in which the draft of a “Bill to amend the Law respecting the Exercise of Admiralty Jurisdiction in Her Majesty’s Dominions and elsewhere out of the United Kingdom” was transmitted, I have now the honour to forward a copy of “The Colonial Courts of Admiralty Act, 1890” (53 and 54 Vict., c. 27), which has been passed into law during the recent session of Parliament. The passage of this measure has been delayed by various causes which I need not now detail, but for which Her Majesty’s Government are not responsible.

2. Having regard, however, to the time that has elapsed since the date of Lord Derby’s circular despatch, it may be convenient that I should remind you of the state of things which led to the introduction of this measure, and that I should draw your attention to the changes which it affects, and to the more important provisions which are contained in it.

3. A Vice-Admiralty Court can be established by commission of the Admiralty in any colony, even though it has a representative Legislature (30 and 31 Vict., c. 45); and the Court, as you are aware, is an Imperial and not a colonial Court.

4. If the Admiralty do not appoint a Judge, Registrar, or Marshal of a Vice-Admiralty Court in a colony, the Chief Justice or principal judicial officer of the colony is ex officio Judge (26 and 27 Vict., c. 24, s. 4); and the Judge of the Court, with the approval of the Governor of the colony, appoints persons to act as Registrar or Marshal (26 and 27 Vict., c. 24, s. 5). In practice, appointments by the Admiralty have been rarely made.

5. This state of things was unsatisfactory in many ways, as, side by side with the colonial civil Court, it maintained another Court, with a separate Judge, separate officers, a separate procedure, and separate fees; and although the same persons were usually Judges and officers both of the colonial and of the Vice-Admiralty Court, yet the fact that they exercised jurisdiction by virtue of different offices tended to create difficulties.

6. A Chief Justice might appoint each of his puisne Judges to be a Deputy-Judge, but the Admiralty jurisdiction was exercised by each Judge personally as Judge or Deputy-Judge of the Vice-Admiralty Court, and not as exercising the power of the civil Court of the colony; and the appeal from one Judge in Admiralty lay to the Queen in Council only, and not to the full Court in the colony, so that there was no local appeal.

7. The inconvenient limitations on civil Admiralty jurisdiction which were removed in the case of the Admiralty Court of England by the Acts of 1840, 1854, and 1861, still existed as regards Vice-Admiralty Courts.

8. The main idea of the Act is to remedy this state of things, and to confer on the chief Court of every colony the whole of the civil Admiralty jurisdiction of the High Court in England, so that that jurisdiction may be exercised by the Court and its officers, and not merely by a member or officer of the Court in his individual capacity.

9. Inasmuch, however, as Admiralty jurisdiction is necessarily of an Imperial character, because it deals with acts on the high seas all over the world, and affects the interests of foreign nations and the Imperial Government, some control over the colonial Courts so far as regards the Admiralty jurisdiction conferred by the Act is important for the purpose both of obtaining uniformity throughout the Empire, and also of guiding the Courts in the exercise of jurisdiction in matters of international law, wherein responsibility may ultimately rest with the Imperial Government.

10. The Act reserves this control partly by requiring the consent of the Queen in Council to the rules of procedure, and partly by reserving power to the Crown to establish a Vice-Admiralty Court; but, in the case of India or a colony having a representative Legislature (section 9), the latter control is retained only for certain special purposes, such as prize, slave trade, Foreign Enlistment Act, &c.

11. As regards the procedure, the colonial authorities are authorised to make the rules, subject to the approval of the Queen in Council. Matters of detail or local concern may, however, be left to be varied by the local authority without such approval, as otherwise a slight alteration of the ordinary rules of a colonial Court could not be applied to Admiralty proceedings in the Court without a reference to the Queen in Council. Colonial legislation affecting the rules of procedure is to be reserved for the signification of Her Majesty’s pleasure, so as to maintain the Imperial control.

12. The Act does not interfere with the present rule-making powers of colonial Courts, and those powers will therefore remain exactly as heretofore with respect to the ordinary civil jurisdiction of the Courts.

13. The intention is that the chief Court of every colony shall have the same Admiralty jurisdiction as the High Court in England, and that inferior Courts in the colony may have conferred upon them limited Admiralty jurisdiction, such as, for instance, is exercised in England by the County Courts; but, inasmuch as the judicial arrangements of different colonies vary, a general enactment to the above effect was impossible. Colonial Legislatures are therefore authorised by the Act to make any Court of unlimited civil jurisdiction in their colony a Court of Admiralty, and also to confer upon inferior Courts partial or limited Admiralty jurisdiction.

14. Section 2 (c) excludes from the jurisdiction of the colonial Court of Admiralty the criminal jurisdiction of the High Court of Admiralty; that is to say, the jurisdiction to try and punish a person for crimes committed on the high seas. This jurisdiction is exercised now by colonial Courts under 12 and 13 Vict., c. 96.

15. The Act secures the same local appeal as in ordinary civil cases (section 5); and declares that, where the local right of appeal is exhausted, the appeal shall lie to the Queen in Council, as do other appeals from colonial Courts (section 6).

16. The Bill when circulated to the colonies by Lord Derby was generally accepted as supplementing the autonomy of the colonial Courts, and was objected to by four colonies alone, namely, New South Wales, Victoria, British Honduras, and St. Helena. It will be observed that by section 16 (a) these four colonies are excluded from the operation of the Act, but that power is given to bring them hereafter within the Act by Order in Council, should they desire it.

17. As before mentioned, the power to establish a Vice-Admiralty Court is reserved to the Crown, as, owing to the circumstances of some of the colonies, or to complications with foreign nations, it may be desirable to establish such a Court. In colonies with a representative Legislature, however, such a Court will only be established for purposes outside the ordinary Admiralty jurisdiction.

18. Thus, if a Vice-Admiralty Court were established in Canada or New Zealand for the purpose (say) of being a prize Court, the Admiralty might assign to that Court all jurisdiction in relation to the slave trade or the Foreign Enlistment Act, but could not assign to it Admiralty jurisdiction in relation to salvage, or collision, or similar questions.

19. In the case of some of the smaller colonies (for instance, those where the Governor is the only Court), Admiralty cases may arise of much greater importance than the ordinary civil cases, and therefore a Judge of superior judicial training may be required to determine them. In such a case a Vice-Admiralty Court for all purposes might be established.

20. If a Vice-Admiralty Court is established, the Admiralty may confer on it, except in a colony with a representative Legislature, the whole of the Admiralty jurisdiction conferred by this Act upon a colonial Court of Admiralty or by colonial legislation on inferior Courts. Thus, if a Court were established in the Falkland Islands or Hong Kong for the purpose of the Foreign Enlistment Act, that Court may have given to it not merely jurisdiction under the Foreign Enlistment Act, but either the whole jurisdiction of the High Court of Admiralty in England, or such portion of it as the Admiralty choose to assign.

21. It may be convenient by way of explanation to refer to some minor points which arise on particular sections:—

Section 2.

22. Subsection (2) of section 2 confers on the colonial Court the Admiralty jurisdiction of the High Court of Justice in England.

23. The words “by virtue of any statute” refer specially to 3 and 4 Vict., c. 65, 17 and 18 Vict., c. 78, and 24 and 25 Vict., c. 10, which enlarged the jurisdiction of the High Court of Admiralty in England.

24. Of the jurisdiction given to the High Court of Admiralty in England by “The Merchant Shipping Act, 1854,” that given by ss. 217, 218, 464, and 468 would, it is apprehended, not pass to colonial Courts of Admiralty, but the jurisdiction given by s. 476 does pass. The important jurisdiction given by s. 527 of the same Act to the High Court of Admiralty is limited to ships found within three miles of the United Kingdom, and would therefore in practice not pass to the colonial Court of Admiralty.

25. The words “regard to international law and the comity of nations” refer to cases connected with foreign vessels (such as a suit by the seaman of a foreign vessel for wages) in which the Admiralty Court has jurisdiction, but abstains from exercising it without the intervention of the