PUBLIC RECORD OFFICE
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own, find themselves within any colonial port or place other than that at which they may have contracted to land, and the master shall decline or omit, within six weeks, to forward them to their destination, it shall be lawful for the Governor to forward them.
"By Section 50, all expenses incurred under the preceding section, including the cost of maintaining the passengers until forwarded to their destination, and of all necessary bedding, provisions, and stores,' shall become a debt to the Crown, and be recoverable from the owner, charterer, and master of the ship on a certificate from the Governor of the amount of such expenses, provided that no larger sum shall be recovered on account of such expenses 'than à sum equal to the amount originally paid for the passage of the passengers so forwarded or conveyed as aforesaid."
In the month of May 1854, the barque "Helen Thompson," from Troon to Quebec, was wrecked in the ice in the Gulf of St. Lawrence. A portion of her passengers were rescued and carried to Richibucto, in New Brunswick, whence they were forwarded to St. John, in the same province, and afterwards a certain number of them, amounting to ninety-three souls, were forwarded by the Lieu- tenant-Governor to Montreal, their original destination.
The Lieutenant-Governor in November 1855 sent home a certificate setting forth that a sum of 272/. 13s. 7d. currency had been expended in forwarding certain passengers of the "Helen Thompson" to Montreal, and a further sum of 3421. 38. 6d. currency in maintaining the passengers of the "Helen Thompson" in Richibucto, making a total expense incurred in forwarding and maintaining the passengers of 6147. 178. Id. currency.
A demand having been made on the owners of the Helen Thompson" for repayment of the above amounts of 2721. 13s. 7d. and 3421. 38. 6d. currency, they claim exemption from the former on the ground that the master of the "Helen Thompson" offered to the passengers before they left Richibucto, either to forward them free of expense to Quebec or to pay them 25s. a-head in discharge of all their claims against himself and his owners, that they unani- mously accepted the last, and that this compromise was made with the know- kdge and sanction of the Government Emigration Officer at Richibucto. In proof of this statement the owners forward the copy of a letter, and a declaration from the master of the "Helen Thompson," and receipts containing a discharge in full from the passengers.
On the other hand, this statement having been referred to the colony, the Lieutenant-Governor has sent home letters from the Emigration Agents at Richibucto and St. John denying all knowledge of such an arrangement, and has added that as far as he is aware no officer of the Govern- ment had any knowledge of it. There seems also reason to doubt whether the passengers themselves understood it in the sense attempted to be given to it by the owners of the "Helen Thompson." From the second claim for 3421. 38. 6d. the owners claim exemption, on the ground that, with the exception of 51. 12s. 6d., the whole claim is, in fact, for clothes supplied to the passengers, and that clothes are not included in the supplies for which the owners or master are made liable by Section 50 of the Act.
Our opinion was requested:
First. Whether the compromise said to have been effected between the master and the passengers would, if proved, be a bar to the claim of the Govern- ment of New Brunswick for subsequently forwarding such passengers.
Secondly, Whether the expense of clothes provided for the passengers falls within the expenses which by Section 50 of the Act were made a Crown debt.
Thirdly. Whether if it did, the claim on account of such clothes was affected by the above compromise.
Fourthly. Whether a claim for such clothes could be maintained in the case of any passenger who was not subsequently forwarded or conveyed to his original destination.
In obedience to Mr. Merivale's request, we have perused the several documents, and taken into consideration the series of questions submitted to us for our opinion, and have the honour to report—
In answer to the first question on which our opinion is requested, that as the statute (the "Passengers' Act, 1852") imposes on the Governor of a colony the duty, or, at least, invests him with the power, of forwarding passengers to their destination when the captain of the vessel fails to do so within a limited time, and as in this case the captain did not, in fact, forward them, and the
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Governor, ignorant of anything having been done by the passengers to disentitle them to their right, did forward them; the consequence is that Section 50 of the Act comes into operation, and the liability of the owners arises.
The second question is attended with some doubt. Section 49 specifies the items in respect of which the owners shall be liable, and "clothes
31 are not mentioned; but as in the case of shipwrecked passengers who have lost all their apparel, clothes are, of course, one of the first necessaries, we think that such articles of clothing as are absolutely necessary may be fairly held to be included under the terms "maintenance, provisions, and stores."
Third and Fourth.-But the owners are liable for the clothes supplied to such of the passengers only as were forwarded by the Governor to the place of their destination.
We are, &c.
The Right Hon. H. Labouchere, M.P.,
&c. &c. &c.
(Signed)
A. E. COCKBURN. RICHARD BETHELL.
Nova Scotia.
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No. 8.
Copy of a LETTER from the LAW OFFICERS of the CROWN to the Duke of
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MY LORD DUKE,
NEWCASTLE.
Doctors' Commons, August 6, 1853.
No. 8.
What
WE are honoured with your Grace's commands signified in Mr. Merivale's Case of the letter of the 20th April last, stating that he was directed to transmit to us copy "Creole." of a despatch, with its inclosures, received from the Lieutenant-Governor of constitutes loss of Nova Scotia; and to request that we would jointly report to your Grace whether nationality in a we agree in the view of the law taken by the Judge of the Admiralty Court at ship. Halifax, in the case of the "Creole;" and, if not, in what respect we differ from Governor,
* Vide despatch
No. 46, of May 12,
from it.
Whether, also, it appears to us that such amendments of the law as 1853. suggested by the Judge in his letter of the 31st March, are called for, or advisable.
We are also honoured with Mr. Merivale's letter of the 4th June, stating that, with reference to the Queen's Advocate's letter of the 23rd April, he was directed by your Grace to transmit to us the copy of a further despatch from the Lieutenant-Governor of Nova Scotia supplying the documents, and other informa- tion, required to enable us to report our opinion upon the case of the “ Creole," seized for the infraction of the Fishery Regulations.
In obedience to your Grace's commands, we have taken the papers into consideration, and have the honour to report→→→
That we do not agree with the view of the law taken by the Judge of the Admiralty Court at Halifax, in the case of the "Creole;" and that we are of opinion that, inasmuch as the "Creole," although originally a British ship, yet had fallen into the hands of foreigners, and been altered so as not to correspond with her original certificate, and not re-registered; and inasmuch as she was not navigated according to the British Navigation Laws, she had lost her nationality, and become a foreign ship. We are further of opinion, that the Colonial Statute on the subject is valid, for reasons hereafter given by us in our answer to the questions, and that the "Creole" was, on these grounds, liable to condemnation and forfeiture.
With respect to the several questions on the case of the "Creole," framed by Mr. Attorney-General Uniacke, appended to his letter to Sir G. le Marchant sent with the papers, we are of opinion-
1. That, with respect to forfeiture, under 59 Geo. III, cap. 38, although
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