1781. Gibbs V. Friends. order, under his authority, or in the prosecution of his service. See 1 Black. 429. It has been contended, The Two however, that captain Crane was not in the prosecution of his owners' service, when he made this capture, the object of the voyage being merely mercantile, and not to take prizes. But as this vessel was duly commissioned to take prizes, and the owners and captain would have shared the produce of a legal capture, this distinction cannot be admitted, but the owners and captain must be considered as jointly answerable. Judgment in favour of the libellants for 13052. specie, with costs. N. B. An appeal, and the judgment confirmed. Clinton Clinton v. The Brig Hannah and Ship General Knox. 1781. wright can A PLEA to the jurisdiction of the court was filed A shipin this cause: and the question was, Whether a not sue in the shipwright might sue in the admiralty for his contract admiralty for wages for building a ship or vessel designed for navi- wages for gation on the high seas? his contract building a ship or vessel designed After long argument, the judge gave his opinion as for naviga follows. The authorities which the libellants have urged in favour of the jurisdiction of this court, in the present case, are Cro. Ch. 296. and 1 Rolle, 533. All the other authorities adduced having reference to those, except one in 1 Stra. 707. In the first edition of Cro. Ch. p. 296, we find resolutions upon cases of admiralty jurisdiction subscribed by all the judges of both benchés, in April 1632; wherein, amongst other things, it is resolved that a shipwright may sue in the admiralty, provided his suit be against the ship. Rolle, as a faithful abridger, gives the law as it then stood under the authority of these resolutions. In article 19, he mentions the doctrine respecting shipwrights, and cites the case of Tasker and Gale. And in article 21, he gives the law respecting charter-parties, adding these remarkable words: "As it was declared by the court to have "been lately resolved by all the judges of England." So that those resolutions seem to be the only foundation upon which these doctrines rest. And it is very observable, that although Croke records the resolu tions as they were subscribed in Hilary term, the eighth of Charles, yet he does not report the case of Tasker versus Gale, although adjudged (according to Rolle) tion on the bigh seas. Clinton V. 1781. Rolle) in the ninth of Charles, which must have been but a few months after. Neither hath any other reBrig Hannah. porter of that period noticed this case. From which it seems probable, that those resolutions, and the judgment in the case of Tasker versus Gale, were not admitted as good law even in that day. But it is further observable, that when sir Harbottle Grimestone published Croke's Reports in the year 1657, he prefixed, even to this first edition, a declaration under the title Mantissa, that the resolutions of the judges in February 1632, were not of authority: and for this reason (according to Comyns) those resolutions were totally omitted in the subsequent editions of that work. Since that time no instance can be found in the books, where either these resolutions, or the case of Tasker versus Gale adjudged thereupon, have been referred to either by the court, or in the pleadings "in any adjudged case, except in the case of Wooward versus Bonithan, sir T. Raymond, p. 3.: and there the court declared, that those resolutions had been denied by several judges, and renounced by even some of those who had subscribed them. And of this, Danvers also takes particular notice, p. 271. Therefore the authority of these resolutions seems to have been abolished by general consent. But another case has been referred to as authority in point, viz. 1 Stra. 707. The report is very short, and in these words: "On a motion for a prohibition, "it was held, that a carpenter may sue for wages in "the admiralty." This report, however, is too slight and solitary to authorize a decision contrary to general established rules. The word carpenter doth not precisely indicate a shipwright, but may be applicable to a mariner on board a vessel; and as the cases referred to in the margin of this report, respecting the officers of a ship who sued in the admiralty as mari ners, 1781. Clinton V. ners, the probability is, that this also was an officer called the ship's carpenter: A doubt having arisen whether the subordinate officers of a ship, as well as Brig Hannah. the master, were not prohibited from suing in the admiralty for wages. If the resolutions of the judges in 1632, and the decision in the case of Tasker versus Gale, were admitted as law, and if the carpenter mentioned in 1 Stra. 707. was the shipwright or builder, how is it possible that the judges so lately as the year 1765, should declare in court, that no instance could be found where both the contract and service were to be done on land, within the body of a county, that the common law courts ever permitted the admiralty to have jurisdiction? I refer to 2 Wilson, p. 265: and this opinion was given in the case of a pilot suing for services done, indeed within the body of a county, but in a case of a much stronger maritime complexion than the present. There are several exceptions to the general rules of law respecting admiralty jurisdiction, as ascertained by the statutes: such as suits for mariners' wages, and on hypothecations made by the master in foreign parts, &c. &c. which have been so often contested, and so often allowed, for good and weighty reasons, that they have become confirmed law, and it would be in vain now to oppose the general rule to the general practice.. But this does not appear to be the case with respect to shipwrights; neither are the same reasons applicable to them. Their contract is made with persons whom they know, or ought to know; their services are all executed within the body of the county, and mostly on dry land above high water mark; their wages have no reference to a voyage performed, or to be performed; the shipwrights have no interest or concern what ever 1781. ever in the vessel after she is on float, and the merClinton chant hath paid for her; and lastly, the practice of Brig Hannah. former times doth not justify the admiralty's taking cognizance of their suits. v. Let the bill be dismissed, as not being within the jurisdiction of the court. Mariners enlisting on board a ship of war or ON Pierre de Moitez v. The South Carolina. a plea to the jurisdiction, it was adjudged, that mariners enlisting on board a ship of war, or vessel belonging to a sovereign independent state, longing to a cannot libel against a ship for wages due. sovereign in vessel be dependent state, cannot libel against the ship for wages due. M'Culloch |