Agency

Pursuant to this patent, on 30 April 1787, letters patent under the seal of the High Court of Admiralty appointed Governor Arthur Phillip to be Vice Admiral and Robert Ross as Judge in Vice-Admiralty. Justice Ross was given full power to take cognizance of and proceed in all causes civil and maritime according to the maritime laws and customs of our said High Court of Admiralty. His authority extended as well to offences or suspected offences (and to) crimes. (2)

Further letters patent were issued in May 1787 to appoint Commissioners under the Piracy Act 1698 to call and assemble a Court of Admiralty on shipboard or upon the land when and as often as occasion shall require to deal with cases of piracy, robbery, and felony on the high seas. It was under the patent relating to piracy rather than the general patent of April 1787, that the first Court of Vice-Admiralty was assembled in Australia. The Court thus established remained always an Imperial Court external to the ordinary court system. It was unaffected by the creation of three civil courts in New South Wales in 1814; nor was any of its jurisdiction withdrawn when in 1823, and again in 1828, when the Supreme Court was invested with a criminal jurisdiction over maritime offences. Its judge held office by virtue of an appointment from the British Admiralty and not through appointment as judge of the Colony. From an early stage its proceedings were regulated by an Imperial Act, the Vice-Admiralty Courts Act 1832, and by Rules and Tables of Fees promulgated under that Act.

The seizure of enemy property at sea was regulated by the Prize Court while civil and criminal matters arising from maritime activity where controlled by the Instance Court. In its early years, the Vice-Admiralty Court exercised Prize jurisdiction during times of hostility, particularly with Spain, France and Batavia. The First Prize sittings were held in May 1799.

In June 1812 the Lords Commissioners of the Admiralty responded to a request by Judge Advocate Ellis Bent and issued warrants and other documents for the trial and condemnation of captured vessels. However, on 31 July 1813, these warrants were recalled. The Supreme Court was vested with Vice-Admiralty authority through the Act for the Better Administration of Justice in New South Wales, 1823 [4 George IV, Act No.96] and The Australian Courts Act, 1828 [9 George IV, Act No.83].

The Supreme Court, however, did not become a Court of Admiralty. It had only acquired jurisdiction over the subject matter of the criminal branch of the Instance Court. The Vice Admiralty Court still had restricted power over offences committed on the high seas, the Supreme Court, to that extent, had only concurrent, not exclusive, jurisdiction.

During the 1840s a systematic procedure for Vice-Admiralty cases was developed due to influence of Justice Kinchela (previously Attorney General) and the Master in Equity Justice Milford. Registers, called Assignation Books, and others described as Rough Assignation Books and Admiralty Notes, plus litigation records called Action Books were kept from 1841. A large number of warrants were issued out of the Vice-Admiralty Court in the 1840s and 1850s, but fewer over the following twenty years.

By 1863 Vice Admiralty Courts had been established in all the Australian Colonies. Although their jurisdiction was the same as that of the High Court of Admiralty, they did not succeed to the statutory additions made to that Court’s jurisdiction by the Admiralty Acts of 1840 and 1861. The Vice-Admiralty Courts Act 1863 (UK) realigned the practices of the colonial courts with that of the English Court. The Act restated a Vice-Admiralty Court’s jurisdiction over suits for

a) seaman’s wages
b). pilotage
c). Bottomry - a contract by which the owner of ship borrows for the use, equipment or repair of a vessel, and for a definite term pledges the ship (or the keel or bottom of the ship) as security; it being stipulated that if the ship be lost in the specified voyage, or during the limited time, by any of the perils enumerated, the lender shall lose the committed funds. The agreement or contract of bottomry is embodied in a bottomry bond.
d). damage by collision
e). breaches of navy regulations
f) salvage
g). droits of admiralty - rights or perquisites of the Admiralty which include goods found derelict at sea plus, enemy goods seized in British ports or property captured at sea during wartime.

Added to this the jurisdiction was extended to claims for master’s wages; towage; the building, equipping and repairing of ships; life salvage and necessaries

The Act also provided for a right of appeal to the Judicial Committee, provided for Rules of Court (eventually promulgated in 1883), and empowered the Judge in Vice-Admiralty to appoint a Registrar or Marshal.

To have an entirely separate Imperial Court, existing side by side by side with the ordinary colonial courts yet utilising their facilities and personnel, was widely regarded as unsatisfactory. Change was brought about by the Colonial Courts of Admiralty Act 1890 (UK) which replaced the system of Vice-Admiralty Courts with a new system of Colonial Courts of Admiralty. The Act abolished every Vice- Admiralty Court in a British possession and replaced them with Colonial Courts of Admiralty. The Act commenced operation in the Australian colonies, except New South Wales and Victoria, on 1 July 1891. The Act did not come into force in the two largest colonies until 1 July 1911. On this date the Supreme Court of New South was became a Colonial Court of Admiralty. (3)

A list of officers of the Vice Admiralty Court is available as Appendix C of the Vice Admiralty Guide.

Endnotes
1. Bennett J. M., A History of the Supreme Court of New South Wales, The Law Book Company, Sydney, 1974, p.153. A copy of the Commission is available as Appendix B of the Vice Admiralty Guide.
2. Ibid., p.153.
3. NSW Government Gazette No. 81, 21 June 1911, p.3366.