160 EXCHEQUER COURT REPORTS. [VOL. V. 1896 BRITISH COLUMBIA ADMIRALTY DISTRICT. July 28. HER MAJESTY THE QUEEN PLAINTIFF ; AND THE SHIP " BEATRICE " DEFENDANT. Wrongful arrest of merchant ship by Crown—Damages—Interest. Where a merchant vessel was seized by one of Her Majesty's ships, acting under powers conferred in that behalf by The Behring Sea Award Act, 1894, and such vesse] was found to be innocent of any offence against the said Act, the court awarded damages for the wrongful seizure and detention together with interest upon the ascertained amount of such damages. THIS was an assessment of damages taken pursuant to the judgment delivered on the 18th November, 1895, dismissing the action for condemnation of the ship, and directing a reference as to the damages to which the ship was entitled for her illegal arrest and detention. The main case is reported in Exchequer Court Reports, vol. 5, page 9. Hon. C. E. Pooley, Q.C., appeared for the Crown ; A. E. M. McPhillips, Esq., (with him G. H. Bernard) for the owner of the Beatrice. DAVIE, (C. J.) L. J., now (July 28th, 1896) delivered judgment. This was an assessment of damages arising out ofthe seizure of the sealing schooner Beatrice by the United • States revenue steamer Rush on the 20th August, 1895. Upon the trial before me of the action for condemnation of the ship for alleged infraction of the Behrin,g's Sea Award Act, 1894, I dismissed the action on the ground that the seizure was unlawful, and I directed a. reference as to the damages sustained by the owners of the Beatrice on account of her unlawful arrest and deten- tion (1). (1) See 5 Ex. C. R. 9. r-,,11....
POL. V.] EXCHEQUER COURT REPORTS. 161 The arrest took place on the 20th August, 1895, in 1896 latitude 54.54 north and longitude 168.31 west, whilst THE the vessel was engaged in seal fishing. She had then QU EEN V. caught 202 seals, having an outfit of six boats and two THE SHIP BEATRICE. canoes and a crew of 18 white men, but no Indians. She had been fishing since the 2nd of August, and Reasons for Judgment. under instructions to the master given by the owner would probably have continued fishing until the end of the season, which is shown to be the 20th Septem-ber, several of the vessels having continued until that date, making good catches up to the last day ; for instance, the Walter Rich caught 72 skins on the 9th September, and 36 on the 18th ; the Ainoko 137 on the 9th. September, 36 on the 17th and 54 on the 19th ; the Florence .M. Smith took 69 on the 20th September. These vessels were all sealing in Behring Sea the same as the Beatrice, and although they had more boats and more men than the Beatrice it is useful to refer to their catches as showing that it would have probably been profitable for the Beatrice to have continued sealing up to the last day. There were some forty vessels, including the Beatrice, sailing out of Victoria engaged in sealing that year, and Mr. Godson, whose duty it was under the Paris award to keep a record Of the industry, informs us that the average catch per schooner was 897.95, or of about 70 to each boat or canoe. It has been contended on the part of the Crown that in assessing damages I should proceed upon the average catch per boat, but I think this would afford hardly a fair estimate for the Beatrice. In the first place, Mr. Godson's average includes the, catch of the Beatrice, which had only just commenced sealing when seized, as also of the E. B. Marvin, which was seized on the 2nd September when she had caught only 376 seals. These seizures, therefore, reduce the average which would otherwise be shown. Moreover, II
192 EXCHEQUER COURT REPORTS. [VOL. V. 1699 many of the other vessels had quit sealing before the THE 20th September, whereas the Beatrice was provisioned QUEEN V p . to, and had instructions to continue until, the 20th. THE SHIP The catches are shown to have been heavier after the BEATRICE. 20th August than they were before that date. Some HeaRons for of the vessels took as high as one hundred and more to Judgment. the boat ; the Borealis, a vessel of only 37 tons register, with twenty-one white men and six boats, taking as high as 123 seals to the boat. The seizure in this case having been established as wrongful, the defendant is entitled to substantial damages, the criterion of which is the whole injury which he has sustained thereby. In the Consult Case (1), where a charter-party was lost in. consequence of detention caused by a collision in which the defendant was to blame, the measure of damages was held to extend to the loss of the charter. The defendant's case here stands upon at least as high a footing as that of the Consett (1). Here, I think I am bound to allow such an amount as would represent the loss of an ordinary and fair catch if the voyage had been extended until 20th September (2). I think that 90 seals to the boat would have been an ordinary and fair catch for the Beatrice to have made ; as the Borealis with only three more men took 123 seals, it is not unreasonable to presume that the Beatrice would have taken at least 90. This, for eight boats, including canoes, would make 720 seals, or 518 more than were taken. The evidence shows that the agents for the Bea-trice, R. Ward & Co., who were also the agents for several of the other schooners, sold all of their catches . at Victoria, and realized $10.25 per skin, including the 202 caught by the Beatrice before she was seized. I think the same price must be allowed the Beatrice for (1) L.R. 5 P.D. 232. (2) The Argentine, L.R., 14 App. Cas. 519.
VOL. V.] EXCHEQUER COURT REPORTS. 163 her estimated additional catch of 518 seals, or $5,309.50. 1896 From this has to be deducted $4 per skin, which it 7 was proved would amply cover all expenses of the lay Qv:EN to which the sealers would, have been entitled as well THE SHIT BEATRICE. as all wages. There will also be deducted $74 for the tinned goods and two barrels of beef which would xe ô°iim Judgment. probably have been consumed had the Beatrice com- pleted her voyage, but which Mr. Doering had restored to him after the vessel was released. The remainder of the provisions were mildewed, eaten by rats and spoiled whilst the vessel was under arrest. There can be no deduction in respect of these. These deductions leave a balance of $3,163.50 in favour of Mr. . Doering, for which sum, together with interest at the rate of 6 per cent per annum from the 20th of Sep-tember, he is entitled to judgment against Her Majesty, with costs." Judgment accordingly. iz z
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