When Anthonis Van den Wyngaerde executed his sweeping panorama of London in 1543, he drew some two dozen ships in the Thames, but only four of them downstream from St. Katherine’s Dock. A century later, however, Wenceslaus Hollar carefully represented well over a hundred seagoing vessels in a ribbon of masts winding down river as far as the eye could see. By the 1650s a mariner noted the difficulty of navigating the Thames at low tide, especially during “mackerel time,” and Admiralty judges at Doctors’ Commons near St. Paul’s were hearing complaints that congestion in the river was endangering London’s environment.[1] Petitioners alleged in 1658 that Jenkin Ellis, a shoemaker and wharf owner, had so exploited his foothold of just ten yards along the north shore of the river, by selling permission to anchor ships eight- and ten-abreast, that the entire bank from St. Katherine’s Stairs to the Dock was ruined. It had once been, said witnesses, a “fair sandy ground” where “people might pass on foot,” where watermen could “wax and tallow their boats.” But after Ellis had arrived in 1640, the bank slowly turned to “mud . . . ooze and dirt,” and “the current of the Thames near shore” where the ships lay was now so “hindered . . . that if not timely prevented,” the river would be “choked up.” Fires carelessly tended aboard the ships when they were grounded at low tide threatened houses in the entire precinct. When riding at anchor near the shoemaker’s wharf, the vessels forced lightermen to row in mid-river “against the strength and current of the tide.”[2]
The rising number of ships in English waterways had apparently reduced everyone’s margin for error in the seventeenth century. For collisions in the Thames and elsewhere were providing the civil lawyers of London’s Admiralty Court with a stream of cases. Ironically, this litigation, it is argued here, reveals both the resourcefulness of England’s maritime judges and the major cause of a decline in their authority during the late Stuart decades.
I. The Recourse to Law
Legal action remained throughout the seventeenth century an important means to recover for losses suffered from collision, for Ralph Davis has found that insuring ships against such casualty would not become common until the 1720s.[3] Shipowners filed perhaps as many as two hundred collision suits in the sixteen years chosen for this study from across the seventeenth century.[4] Thirty of these actions were carried all the way to judgment, and fully two-thirds of the cases decided before 1663 had arisen from ships cracking together in the congested Thames.[5] The suits themselves often had to be squeezed onto a crowded Admiralty docket. By the late 1620s the civil law judges were contending with an unprecedented number of maritime disputes–quarrels between foreigner and Englishman over wartime reprisals, between master and sailor over wages, and between merchant and owner over the various contracts of long-distance shipping. The Warrant Books for 1639 list 1,452 orders to arrest defendants and initiate process in all kinds of Admiralty suits, both prize and instance. And even though court scribes after mid-century were recording prize warrants in a separate account, the Warrant Books from 1655 to 1662 still show a yearly average of 647 new arrests in instance matters (see Table 1).[6] This persistent traffic in everyday, non-prize litigation through the early 1660s is also reflected in the court’s busy Act Books. A witness in a collision case of 1657 complained that he had waited four days to testify.[7]
Table 1.
Warrants and Decisions Issued by the Seventeenth-Century Admiralty Court
Sources: HCA, 38, Warrant Books; HCA 3, Act Books; HCA 24, Libels and Decress.
aThe sixteen years in italics are those sampled for this study. See note 4 above for the sampling method.
bThe seventeenth-century instance jurisdiction included such matters as bills of lading, charter parties, collision, damage to cargo, maritime debt, derelict, fiscal enforcement, fishing rights, flotsam, freight, hypothecation of ship or cargo, ownership of vessels or cargo, provisions, salvage, amd mariner’s wages.
The press of ordinary maritime disputes at mid-century and beyond probably pleased the professionals at Doctors’ Commons. All practitioners, a lawyer confessed in 1651, had their eyes on the fee and wanted their courts “packed up with suitors.”[8] More than 800 Admiralty warrants were purchased to initiate actions in 1657. But within a few years after the Restoration the warrant count had dropped sharply, by 1665 to 330. And the decline was permanent: the average number of instance warrants issued annually from 1666 to 1700 was 275, less than half the average for 1655-62. This did not mean a commensurate fall in the number of decisions issued by the court, as Table 1 reveals. But Admiralty judges were unusually busy enforcing navigation acts in the 1670s and mariners’ pay agreements in the 1690s. When these fiscal and wage decisions are subtracted in Table 1, it is clear that Admiralty decrees in other types of litigation had fallen by the end of the century nearly a third from the levels of the late fifties and early sixties. Similar contractions were experienced by other central courts in the late seventeenth century. But why the number and variety of Admiralty cases should have declined in an era marked by greater shipping traffic and customs receipts is not easy to explain.[9]
One theory is that litigants had less reason by the 1660s to seek civil law remedies at Admiralty. The common law courts, Daniel Coquillette has argued, “had demonstrated their ability to meet the practical needs of English commerce well before the Restoration, and the civilians simply failed to offer any convincing rival advantages.”[10] But Coquillette rests his case heavily on improved common law treatment of bills of exchange, instruments that had not been a significant part of Admiralty litigation. He has perhaps underestimated the civilians’ ability to create new legal solutions for merchants and mariners in the seventeenth century. And while he rightly attributes greater common law recognition of mercantile practice to the influence of Matthew Hale and decisions of Justice Holt in the last quarter of the century, this cannot account for the sharp drop in Admiralty warrants during the 1660s.[11]
The more familiar explanation of such decline has been given scholarly statement by M. J. Prichard and D. E. C. Yale. In their view, maritime business at civil law shrank under “the accumulated weight of prohibition.” The civilians’ declining case load was due not to the attractiveness of common law rules newly adapted to commerce, but to “more insidious forces,” namely those directed by the professionals at Westminster. Common lawyers had reasserted their claims to a variety of maritime cases as soon as Interregnum statutes protecting the Admiral’s jurisdiction were allowed to expire, and they advised Admiralty defendants to sue out writs of prohibition, which stopped process at civil law.[12] Prichard and Yale have used the legislative record and common law reports to introduce two important treatises on maritime law. But they provide no clear evidence that occasional prohibitions, widely scattered as they were among hundreds of Admiralty suits, fully deterred shipowners and mariners from bringing the disputed matters to Doctors’ Commons. They offer no analysis of what precisely Admiralty judges were adjudicating in the late seventeenth century or how well they were doing.
An inquiry into these matters could logically begin with the collision cases studied here, since one response of the civilians to the rising demand for their services in the seventeenth century was an innovative attempt to resolve collision issues more equitably and expeditiously. The ambiguity of circumstance surrounding the collision of two ships in a congested river or open sea often became apparent as the testimony of the crews was read out in court. There was seldom a disinterested witness to validate one version or the other. Therefore, English Admiralty judges experimented early in the seventeenth century with a remedy long available in European maritime codes: they occasionally abandoned efforts to identify only one party as responsible for the collision, decided instead that the damage was in some measure due either to accident or the carelessness of both crews, and consequently reduced the plaintiff’s award. Thus they were finding contributory negligence long before that notion took hold at common law.[13] And the cases studied here reveal when in the seventeenth century this approach became Admiralty routine, the simple rule (rusticum judicium) by which liability was divided and the defendant typically required to pay for only half the plaintiff’s losses. But the cases show more, that the civilians would go further in their search for equity by the 1670s and develop a purely no-fault doctrine, a rule enforced at Doctors’ Commons throughout the eighteenth century and requiring defendant and plaintiff to bear equal shares of the total damage on both sides.
Surely some shipowners who were aware of these new remedies–the sharing of responsibility for collision at sea–were willing to accept their portion of the losses and settle without the expense of suit, which may explain part of the decline in the number of such Admiralty cases late in the seventeenth century. Support for this logic can be found by looking at civil law process and noting the length and costs of collision suits that parties insisted on pursuing to decree. Evidence of prolonged hearings and rising fees indicates material motive for trying to resolve disputes without hiring counsel, attending court, or even buying a warrant of arrest.
On the other hand, collision cases offer an opportunity to test the conventional explanation for shrinking Admiralty business. Common lawyers in the 1660s revived the use of prohibitions to claim authority over disputes arising from crashes in navigable rivers, which, as the present sample suggests, had been generating two-thirds of all collision litigation at Admiralty. By noticing the location of collisions that resulted in decrees, both before and after these prohibitions issued, we can determine whether some ship-owners were persuaded to avoid Doctors’ Commons altogether, presumably in order to file their suits in the Sheriff’s Court or at Westminster.[14]
This inquiry into one corner of Admiralty law is, then, a modest approach to the larger issue of declining litigation rates in the seventeenth century. Did the business of one central court contract late in the century in part because judges had offered a framework of rules for ending some quarrels without legal action? Or did traffic at Doctors’ Commons decline solely because the civilians had failed as politicians to protect their ancient jurisdiction against common law encroachment? Argument for the first hypothesis must rest largely on circumstantial evidence, for Admiralty records say almost nothing about the motives or agreements of shipowners who chose to reconcile rather than litigate. But evidence for the second explanation is stronger, and it will be demonstrated here that beginning in the 1660s prohibitions sharply reduced civilian authority over collision disputes.[15]
It is no surprise that civil and common lawyers were vying for control of maritime litigation in the seventeenth century.[16] Cases from the sample illustrate how a growing commercial empire could bring grist to the lawyer’s mill. A larger navy had helped to seize and hold markets abroad, and government agents brought suit at Admiralty in 1657 after one of Cromwell’s warships was involved in a smash-up on the Thames.[17] But most plaintiffs and defendants at Admiralty were, of course, private shipowners. Aside from a few watermen whose lighters had suffered damage, the litigants were invariably proprietors of coasting vessels and larger merchantmen that had become entangled in river or harbor or en route to and from distant markets. For instance, alderman William Cokayne was one of several Londoners condemned to pay £134 in 1609 after their ship, bringing home seventy tons of Polish wheat, rammed a Scottish vessel off Yarmouth.[18] A crash in 1627 at Chester’s Key in the Thames reflected the expanding re-export trade in Asian goods, for the cargo damaged was pepper ready for shipment to the Mediterranean.[19] The Rose and Crown, a fly-boat of 320 tons, was outbound in 1676 to load sugar at Barbados when she ran over a ship carrying French wines to London’s elite.[20] Collisions also resulted from efforts to supply the city’s artisans. In 1608, the Jonas, laden with iron for the metropolis, was holed and sunk in the middle of the night by the Chalk Hoy of Greenwich.[21] In 1678, a small vessel with timber for shipwrights had just come to anchor near Clement’s Reach when she was driven under by a ship difficult to identify in the predawn darkness, but thought to be the Hound, a collier arriving from Newcastle.[22]
There was good reason for such suspicion. Colliers like the Hound were involved in more collision cases during the sample years than ships hired for any other trade. Exports of coal from northeastern England had increased sharply in the late Elizabethan and early Stuart decades. By the 1640s Londoners burned more than 300,000 tons of the fuel each year, creating such a smog that John Evelyn compared the city to the suburbs of hell or Troy after the Greeks had left.[23] Meeting such a demand for coal with a coasting fleet that averaged under a hundred tons per ship would have required several thousand voyages annually. Thus, a third of all decrees in the collision cases sampled here, more than half after 1656, resulted from the difficulty of negotiating the Thames in heavily laden but lightly manned colliers.[24] Sailors of the Hound, blamed by Captain Mustard for running down his timber hoy, admitted that their collier lay so low in the water she could not pass over a shelf in the Thames near Rainham until flood tide. They insisted, however, that they then cleared all vessels in the early morning darkness and reached London without mishap. But Mustard’s charges against the Hound were supported by a parade of witnesses. A waterman had heard first the cracking of vessel upon vessel, then Captain Mustard cry out, “O lord, O lord, you have sunk my hoy.” One of Mustard’s sailors said that he and the captain had leaped into the hoy’s boat to save their lives and then chased the Hound from Gallion’s Reach to Blackwall. There Mustard, vowing legal action, warned the collier’s master, Thomas Arundell, “You shall know the damage you have done–and my name–when you come to London.” Finally, a witness alleged that the Hound’s crew had tried to escape detection by painting over the figure of a spotted dog on the ship’s stern. And though the Admiralty judge still imagined it a case of misidentification in the pre-dawn darkness and acquitted Arundell and his crew, Captain Mustard, as we shall see, had not exhausted all legal options against the Hound in a seventeenth-century world of competing jurisdictions.[25]
While collier crews were involved in numerous quarrels, they also had occasion to support each other’s claims in the city’s courts. Their masters usually came from small northeastern ports, and a certain social distance was apparent when Robert Yaxley’s collier, the Mary of Aldborough, arriving from Newcastle in 1656, collided in the Thames with Captain Whitty’s Freeman, a great London merchantman of four hundred tons.[26] Whitty contended that his ship carried cargo worth £30,000, drew twelve feet of water, and could not get nearer the shore to avoid ramming the smaller Mary. But Yaxley, a veteran Newcastle mariner, countered that Captain Whitty had run over the Mary in broad daylight and had ordered his crew to board her and cut her shrouds to free the ships, while he stood on his forecastle shouting, “You collier dogs! I had not cared if I had sunk you.” To support these allegations and win damages against the London master and owners, Yaxley found witnesses who had arrived in the city on other colliers, mariners who might well have rallied to him as one of their own.[27]
II.Rules, Pleas, and Ambiguity
The Admiralty Court was responsible for enforcing rules designed to en-courage prudent navigation and reduce the risk that cumbersome sailing ships like the Hound and Freeman would become entangled in the busier rivers and sea lanes of the seventeenth century. Scores of colliers heading to London or merchantmen leaving the Downs for various destinations might sail together with the first favorable wind. When crews failed to keep their ships clear of one another, the court had to decide whether it was by accident, negligence, or–as Captain Yaxley and other plaintiffs had implied-malice.[28] After determining fault, the judges had to assess the damages due, another complex problem that could require estimates of asset depreciation, the market value of cargoes, and the costs of lost opportunity. Many cases were so difficult, especially those like Yaxley’s, where both ships had been under sail, that the court was prompted to apply new substantive rules that seemed to promise fairer and quicker solutions.
The older Admiralty rules for assigning fault and damages had come from several sources by the seventeenth century. First, there was an occasional action to enforce patent rights of the Admiral against those responsible for collisions. For example, Dr. Walter Walker, the state’s advocate at civil law, asserted the Admiral’s droit of deodand against a Dutch ship in 1658. The St. Jacob, he alleged, had been found by a jury to have run over a small boat in the Thames, drowning one of its passengers, and the ship, said Walker, for having caused a death, was by right forfeit to the Admiral.[29] George Huntington’s lawyer drew on a second source of rules in 1656 when he referred the judges to their own local “orders and ordinances . . . touching the regulation of the river Thames” and insisted that it was illegal for more than three ships to lie side by side at Tower Wharf. He alleged that Nicholas Constant had anchored his Waterhound as a fourth vessel outside Huntington’s William, and that after the collision Constant had boasted he had come “on purpose to lust his ship inwards” and “would not have given . . . two pennies” for the damage done–though surely it cost him more than that to reach the out-of-court settlement that “fully satisfied” Huntington.[30] The proctor defending Robert Church in 1660 invoked a third source of Admiralty law governing collision cases, “the use and custom of the sea” and of “masters and mariners in the Thames,” when he claimed that unless ships were “at the chain or hauled onshore” they should have “at least two or three men onboard.” Hence, if Church’s vessel, the Phoenix, had come afoul of the plaintiff’s Consent, it was only because the Consent was an “old rotten ship” that had ridden at anchor for months near Redriffe with “only a little boy on board.” But Church himself, said a witness, had violated another custom–“well known” to “masters of ships using the port of London”–that they should “lay their anchors athwart the river” and had instead cast one of his northwest into the middle of the channel, too near the Consent. Church’s retort, that he knew how to moor a ship as well as anyone, failed to convince the court, and he was assessed £67 for causing entanglement and damage.[31]
The surviving record suggests, however, that Admiralty proctors in the seventeenth century seldom thought it necessary to recite the rules on which they based their clients’ cases and that judges rarely identified the sources of law that informed their decisions. Their jurisdiction was, after all, an equitable one that permitted them to follow the dictates of reason when enforcing right, ordinance, or custom.[32] They were not required to explain their decisions for the record and seldom did. Therefore, in order to understand what was necessary to win a decree for full damages in a seven-teenth-century collision case, we are forced, in the general absence of citations or explanations, to rely on what successful plaintiffs usually set out to prove and what their witnesses were prepared to testify.
Such inference is not without difficulty, but we can find the constituent parts of most successful suits by looking at a libel from early in the century. In 1607 shipowners Roger Ditton and company sued the proprietors of the St. Christopher, commanded by Captain Marsh, for damages from collision. First, Ditton’s lawyer alleged that Marsh had run his ship negligently, even willfully and maliciously, into Ditton’s vessel, the Anne, which had just left Wakering in fair August weather bound for London. Specifically, the lawyer said that Ditton’s master, Arthur Harris, had called out a warning as the ships came close, but that Captain Marsh, “at strife” with his company over “how and which way they might steer,” did nothing to avoid the collision. Second, to suggest that Marsh had had a willful intent to damage the Anne and did nothing to limit the harm, Ditton’s lawyer added something found in many successful collision libels, a description of how the defendant’s master and crew had behaved after impact. Marsh, he alleged, had surely heard Captain Harris cry out “Lord, you have sunk my hoy. I pray you, for God’s cause, stay and help [save her] and her lading.” But even though Marsh knew, as he later confessed, that the blow would have sunk the Anne, he “did go his way and refused to help save either the goods or lives of the company of the said Anne . . . [and] did leave her, thinking he should never hear further of her.”[33] Ditton’s allegations posed, then, the two general issues raised in most collision cases for the rest of the century: first, whether the defendant’s mariners had negligently or maliciously caused the initial damage, sometimes admitting–even boast-ing–that they had run over the plaintiff’s vessel; and second, whether the defendants’ master or crew had done anything after the collision to prevent further harm to the plaintiffs’ ship, cargo and crew, or had stood at a distance, offering no help, perhaps even sailing away.
The lawyer defending Captain Marsh and the owners of the St. Christopher addressed only the first issue. He said nothing to justify Marsh’s behavior after the collision and insisted only that the cause of the crash should be blamed on the negligence and stubbornness of the plaintiff’s Captain Harris, master of the Anne. Harris, he argued, “took no care of his ship.” For if he had “kept his course as he did at his coming out of the haven, the Christopher [would have] passed by the stern of [the Anne] without any hurt.” Captain Harris “was willed to bear room . . . but he would not; . . . whereas if he had . . . the said ships . . . had slid one by another . . . without any damage.” This was a defense mounted in very general terms against only one of the charges, and it failed. The judges had heard no testimony that compelled them to hold the plaintiff’s Captain Harris at all responsible for the collision itself. Nor was anything offered to excuse Captain Marsh’s subsequent failure to lend a hand. Thus the judges must have found it relatively easy to award Ditton and the other plaintiff owners £46 in full damages and court costs.[34]
Neither should the court have had much difficulty reaching judgment in a group of cases with a different context, those raised by collisions that had occurred in river, harbor, or roadstead, and in which the first issue, responsibility for the crash, was simplified because only one of the ships had been under way at the time of impact.[35] The judges, for example, assessed full damages in 1608 against the defendant owners of the Sarah after she had rammed the Phillip and John, which lay at anchor near Limehouse Bridge.[36] A witness testified in 1629 that the master of the Trial had ignored his mate’s advice to “heave his ship further ahead” before he weighed anchor, so the Trial’s owners were held fully responsible for cutting both cables of the Rainbow, which had been safely moored in the middle of the Thames.[37] And the judges in 1656 surely had little trouble ruling for the plaintiff-owners of a collier that had been quietly anchored at Bell Wharf before the collision, for witnesses said the other ship, the defendants’ Accord, had come “floating down” the crowded river without a single mariner–not even a boy–on board.[38]
But when both ships had been under sail before the crash, the task for the court was usually more complicated. Occasionally, of course, plaintiffs-like Ditton in 1607–could provide specific evidence to condemn the defendant in full damages. The sleeping mariners of the Piper of Lubeck, said plaintiff’s witnesses in 1655, had “left their said vessel to sail without anybody at the helm,” and when one of the crew, at last wakened by shouts from sailors of the fast closing James, appeared on deck without his shoes, he tried to raise his mates. “He did call them and swear and rail at them, but none would come.” Finally he seized the wheel himself, but by then a collision was inevitable, and the judges, finding the sleeping crew at fault, ruled for the London plaintiffs, owners of the James. [39] However, in most litigation that involved two moving ships, the defendant’s lawyer was better able than the proctor defending Captain Marsh in Ditton’s case to establish at least the contributory negligence, if not the total responsibility, of the plaintiff’s crew. He might first produce evidence more specific than that offered by Marsh’s lawyer to shift blame to the plaintiff’s mariners. The plaintiff’s master, said a witness, had been so drunk before the collision that when rescued from his sinking ship he “vomited up and down the deck” and soon fell asleep in the cook’s room.[40] Almost as frequently the defendant’s counsel tried to excuse his client, or reduce his liability, by focusing on the second issue of many cases, contending, in other words, that much of the damage had resulted not from the collision itself, nor from the subsequent refusal of the defendant’s sailors to offer help, but from the failure of the plaintiff’s crew to help themselves. A witness argued that after only minor damage from the collision the plaintiff’s mariners had bilged their own ship by trying to reach Whitby instead of stopping at Scarborough.[41] The defendant’s crew in another case confessed that they had lacked a rope to tow the plaintiff’s ship to safety but insisted that the plaintiff’s sailors could easily have gotten help from other ships passing by.[42] A plain-tiff’s master, witnesses alleged, had abandoned his ship to further damage after the collision, then boasted that he would profit more by filing suit than by completing the voyage.[43]
This marshaling of evidence by defense lawyers, who were responding to both issues of most suits by describing the carelessness or willfulness of the plaintiff’s crew before and after the collision, often prompted Admiralty judges to doubt that the defendant’s sailors had been solely at fault when two ships under sail had smacked together in river or open sea. In other cases the judge could conclude that the cause was accident rather than the negligence of either party. Yes, the plaintiff’s crew might have called to the mariners of the other ship “to stand clear and avoid them, yet in truth” it was often the case, as a witness described, that “the wind was so high and did blow so hard that it was not possible . . . to hear them” until it was too late.[44] Thus, it is not surprising that Admiralty judges began to reveal their uncertainties early in the century by awarding plaintiffs only half damages and sometimes less.
III. Division of Liability and a No-Fault Formula
European maritime codes had long provided for the sharing of losses between parties to a collision. But R. G. Marsden found that English Admiralty judges began to apply the simple rule (rusticum judicium) of divided damages only in the early seventeenth century, first in a decision of 1614, then in 1626.[45] Judges of the High Court of Delegates, the appellate court for the Admiralty, were also lowering damage awards at least as early as a case of 1648 in which they admitted their uncertainty regarding fault, and the Admiralty Court itself continued to invoke the new rule during the Interregnum.[46] For example, there is the 1657 decision of Judges Godolphin and Cocke in Cooper v. Samuel’s Delight. Witnesses said that neither ship had “any light aboard” when they collided on a dark night in open sea near Hull. “[T]he value of the damage,” Judge Godolphin confessed, “did not appear unto him and neither did it appear to him that the damages were done by the willfulness or negligence of the defendant master or his company.” So the judges, “in respect of uncertainties,” issued a decree that charged the defendants with court costs but only half the damage done to the other ship and her cargo of barley. They divided liability for the plaintiff’s losses despite allegations in the usual form–as in Ditton’s libel of 1607–that after the collision the defendant master had refused to help the plaintiff’s mariners and in this case even threatened to throw them overboard.[47] Two weeks later, Godolphin and Cocke confirmed their policy by dividing liability in the river case mentioned above, Yaxley’s action against the Freeman. Captain Whitty, the defendant, may have insulted the colliermen after the crash, but both ships had been under way; and, after reading a draft sentence submitted by the plaintiff’s proctor that blamed the collision entirely on the willfulness of Whitty and his crew, Judge Godolphin “directed that another sentence be . . . drawn . . . pronouncing of the damage to have happened by casualty.” The new draft, “read and promulgated” by the judges a few hours later, ordered Whitty and the other defendants to pay court costs but only half the damages suffered by the Mary.[48]
Division of liability and consequently reduced damages were becoming a common Admiralty solution by mid-century. This is demonstrated in Table 2, where forty-nine outcomes reported by Marsden are combined with those from the present sample. Was it mere coincidence that the judges were adopting this approach in the majority of decisions from 1639 onward, that is, just as the volume of Admiralty warrants was peaking in the late 1630s and would remain at high levels for two more decades? (See Table 1, above.) Or did the judges anticipate that the new rule, unavailable at common law, might reduce pressure on the court’s docket and yet preserve an Admiralty role in this legal business? Did they reason that because so many collisions occurred in ambiguous circumstances, sharing the losses should seem reasonable to all involved, and if some shipowners could not avoid suit, they could come to Doctors’ Commons to have a sensible division imposed?
Whatever the initial impulse, the judges, as Table 2 indicates, had even greater recourse to this remedy in the final decades of the century, sometimes ignoring serious complaints about the defendant’s behavior. Captain Coleman and other owners of the Adventure of London were assessed only half damages in 1678 even though witnesses claimed that Coleman had ignored good advice about how to avoid the collision off Dungeness and that his crew, fearing the plaintiff’s mariners would “tell tales” about the incident, had been ready to let them perish with their ship.[49] In the next year, the judges found no malice and assessed only half damages despite testimony that a defendant master had boasted on arrival at London, “God knows” we “had bulled one poor [ship] to the bottom.”[50] The judge hearing Renew v. Hopewell in 1698 levied only half damages even though the defendants admitted they had had no light aloft at midnight in “rainy, thick weather.” But the defendants explained that in the prevailing conditions of war they would have risked capture by privateers had they raised their lantern from the deck, and they suggested contributory negligence by arguing that at the time of impact most of the plaintiff’s crew were asleep in their cabins, having left an old man at the helm who “could not get it over.”[51]
Table 2.
Outcomes in Seventy-Nine Collision Cases at Admiralty, 1608-1699
Sources: Marsden Pleas in the Court of Admiralty, 2: lxxxiii-lxxxv, and Law of Collisions, 7th ed., 158-63; HCA 3, Act Books; HCA 24, Libels and Decrees. Marsden lists two cases in Select Pleas that he omitted in his later Treatise on the Law of Collisions.
aThere is reason to think that many more Admiralty cases were settled out of court than were reported as such in the court’s records.
Admiralty judges rarely held either party fully responsible for collisions in the last quarter of the century, a reasonable response given the evidence in most cases. But the judges’ quest for equity in collision matters went further, beyond contributory negligence and to an extent that surely discouraged all but the seriously aggrieved from filing suit. The court devised a simple no-fault formula, first seen in a case of 1675, that could sharply reduce the plaintiff’s award or even, theoretically at least, require the plaintiff, rather than defendant, to pay. Applying the rule in Renew v. Hopewell (1698), the judge first subtracted the cost of repairs to the defendant’s ship (£60) from damages suffered by the plaintiff’s vessel (£250), divided the result (£190) in half, and required defendant Robert Humble to pay £95. This was, of course, another way of summing the losses on both sides and holding each party liable for an equal share of the total. The defendant in a case of shared liability would no longer be required to bear half the plaintiff’s losses in addition to all of his own; and, if he could prove that his own ship had suffered the greater damage, he would owe the plaintiff nothing. No instances could be found of the plaintiff alone being ordered to pay once the calculation was carried out. But the formula would be described by an Admiralty lawyer in the 1750s as the court’s standard method of dividing damages in collision cases. It might be seen as a clever device for deterring potential plaintiffs from filing suit unless they were confident they could prove sole fault on the part of the defendant or their own disproportionate loss.[52]It was becoming harder, then, for plaintiffs in the last half of the century to win full damages by conventional argument. Nor were they successful in persuading the court to include in awards whatever prospective loss might be alleged to flow from the collision. In four cases from the sample years, the court heard arguments that the plaintiffs should recover not only for physical damages to their vessels and cargoes but also for freight lost when collision had ended the voyage, and even for the loss of new freightings when their ships had been idled for repairs, called, in modern practice, damage from detention.[53] Judge Godolphin rejected such allegation from a collier master in 1656–that five weeks of repairs had cost him a voyage to Newcastle and back, potentially worth £100 in earnings–and he assessed the defendant only £19 for physical damage to the ship and the loss of coal spilled into the Thames.[54] However, in Captain Yaxley’s case of the following year, Judges Godolphin and Cocke, while ultimately dividing damages between the parties, appear also to have allowed the plain-tiff’s claims for injury from detention. Yaxley’s witness testified that because the Mary would lie at New Crane for repairs, she would lose £50 in profit from the coal trade. By the time Yaxley’s proctor had drafted a decree to submit for the judges’ signatures, his estimate of lost earnings had grown to £100. He added this to the physical damages of £100 done to ship and cargo, and the court accepted his total of £200 before finding shared liability and assessing only half that sum.[55] There is no evidence in the sample at hand, however, that damages from detention had become routine, for despite hearing plaintiffs allege in 1679 that in three months of delay they had lost £50 in profits, surrogate judge Richard Lloyd awarded only the costs of weighing and repairing the ship.[56]
IV. Process and Delay
Admiralty judges had adjusted substantive law in the seventeenth century to recognize that some collisions were accidental and others the fault of both parties. As a result, plaintiffs faced much dimmer prospects. They had won full damages in over 80 percent of cases at the beginning of the century but could do so in only 12 percent at the end. (See Table 2 above.) The judges, who divided damages in fully 70 percent of cases late in the century, were surely by the consistency of their policy persuading some potential litigants to share the losses among themselves without the need for legal action. A witness testified that Captain John Anderson, master of the Castle, admitted his share of responsibility for a collision in 1677, thought it “very fit his owners should pay half the damage,” and urged them to make an offer that would avoid suit.[57] But the court’s new doctrine may have provided additional motive to reach out-of-court settlements, for it seems also to have lengthened proceedings significantly when legal action could not be avoided. Instead of simplifying matters once the pleadings had begun, the rusticum judicium appears to have resulted in tactics that only complicated litigation. Thus, by creating new rules, busy judges at mid-century may have succeeded in rationalizing their decisions and shortening their dockets. But their successors on the bench in an era of declining Admiralty business might well have regretted the new collision remedies, for they seem to have had the additional and unintended effect of producing long and expensive process, a deterrent that, like prohibitions, could have driven some potential clients from Doctors’ Commons.
This lengthening of litigation resulted in spite of procedural rules at Admiralty that were well suited to collision cases. Civil law process was, for example, especially appropriate for disputes involving high stakes. The loss of ship and cargo from collision often amounted to thousands of pounds, and the median claim of £400 in the cases studied here was 60 percent higher than the median claim in all other types of Admiralty cases reaching judgment in the sample years.[58] Seeking a relatively high award, the Admiralty plaintiff could sue out a warrant at civil law in rem against the offending ship itself and have this valuable asset arrested, in addition to the master or owner, while action at common law could be taken only against a person. Warrants of arrest in all but one of the collision suits in the sample cited first the ship and then the owners.[59] The importance of the procedure was that it allowed the plaintiff in a case of default, when the defendant did not answer the action, to win possession of the offending ship, which might then be sold to execute judgment. The plaintiff need not depend for recovery on a defendant shipowner, or even group of shipowners, who might have fled the jurisdiction, have debts in excess of the ship’s value, or prove utterly bankrupt.[60] Moreover, the award remained as a debt against the ship should the vessel be sold.[61]
On the other hand, a successful action in rem could guarantee no more than the value of the defendant’s ship and cargo, even when its errant owners had been held responsible for all losses from the collision. London owners of the James alleged damages of £4000 from the loss of their ship and cargo by collision in 1654, but won assets of only £2600, that is, possession of the defendant’s vessel “and all the goods in her.” With the court’s permission they then employed the ship in their trade, after selling her perishable cargo.[62] Plaintiffs in 1608 who were given possession of the defendant’s small Chalk Hoy might not have recovered the full value of £270 for the shipment of iron they had lost by collision.[63] And, of course, no procedural safeguard could ensure full or speedy execution of judgment. Plaintiffs who in 1656 had brought their case in rem were still trying to recover from the defendant’s widow two years after an initial decree for damages, but she could not be found, though the court had twice cited her–in the fashion customary when parties went missing–by exhibiting the monition at the Exchange.[64]
Still, suing the ship probably improved the plaintiff’s chances of collecting something, while other procedural options at Admiralty served the needs of both parties and the shipping industry in general. Shipowners could, for example, frame the case so that their captain, usually a fellow owner, was able to testify.[65] The industry employed boys, and the court’s procedures allowed minors to be sworn and deposed, even in one case after it was alleged that a father was dictating his son’s answers.[66] Testimony need not be voiced before Admiralty judges in open session but could be taken down by scribes out of court, a practice that accommodated the working lives of merchants and mariners. A sailor witness in one collision case was ordered to testify “before his departure out of town,” but only if the opposing proctor had submitted his questions by noon of the next day.[67] The judges were also ready to grant requests that depositions be gathered outside London, virtually anywhere there was a relevant source–in Edinburgh and Italy in cases of the sample, as well as Colchester and Ipswich. Parties who failed to return the packets of testimony by the appointed date might be fined by the court, but such gathering of evidence at long distance inevitably lengthened process and seems to have been in some cases a mere tactic of delay, used more often than not by the defendant. Defendants in one instance were granted commissions for depositions at Ramsgate and Dartmouth and then, over protests about retarding process, were allowed to send interrogatories to Barbados.[68]
Cases that involved testimony taken abroad lasted on average nearly eight months longer than those that did not. But even when all witnesses were in London, collision suits in the seventeenth century were relatively long and costly. Those from the sample years lasted on average two and a half times as long as cases involving other Admiralty matters and extended roughly a year and a half from issuance of the warrant to the last judicial pronouncement that has been discovered.[69] Quarreling shipowners may have been more likely to compromise before filing suit once divided damages became the predictable outcome. But there is no way to document this. Admiralty records cannot tell us how often or why parties chose to avoid suit and rarely even hint at the nature of agreements reached after warrants had been served. The cases sampled here do suggest, however, that both judges and plaintiffs were sorely disappointed if they had expected that the new and equitable rules would abbreviate pleadings once begun. Collision suits from 1655 onward, when the rusticum judicium was in place, lasted more than twice as long on average as cases before 1630 (see Table 3). By the end of the century the median length of collision suits was nearly ten times longer than that for all other kinds of disputes at Admiralty. And we may suspect that the new substantive rules had actually prolonged process. Among collision cases, those ending in divided damages had a median length of thirty-five months, nearly three times the median of those that had resulted in full victory for plaintiff or defendant.
There is plausible explanation for this disparity. Defendant shipowners may have been encouraged by the prospect of getting damages reduced. But in order to ensure that result they had to do all they could to cultivate the judge’s uncertainties, using, if necessary, every tactic at hand.[70] Admiralty proctor Ralph Suckley, for example, first appeared for defendants Captain William Lee and his wife Mary in 1656, just as division of damages was becoming doctrine. Suckley gave himself time to build his case by conveniently failing to file his interrogatories, leaving testimony incomplete until the plaintiff’s captain had returned from Norway. The lawyer then produced a string of witnesses in 1657 who declared that little of the plain-tiff’s cargo of coal had been lost, that the plaintiff’s mariners could have limited the damage by immediately seeking a haven after the collision, that the plaintiff’s ship and mariners had stood at a distance waiting for the Lees’ vessel to perish, and that the Lees themselves had suffered considerable injury, including the projected loss of freight from a venture already contracted. When these allegations failed to convince the judges, lawyer Suck-ley managed to delay a decision throughout 1658 and twice stood silently by when his client Mary failed to appear to hear a sentence that would have declared her husband wholly at fault. Then later that year Suckley found a way to restate the facts, and the judges ultimately awarded the plantiff shipowners only half damages. This circuitous passage to divided liability had taken more than two-and-a-half years, and Captain Lee had died en route, but artful lawyering had saved his widow £350, a brave sum in the seventeenth century.[71]
Table 3.
Median Length, Costs and Awards in Admiralty Cases, 1608-9, 1628-29, 1655-62, 1678-79, and 1698-99
Sources: HCA 38 Warrant Books; HCA 3, Act Books; HCA 24, Libels and Decrees, 1606-1699.
For each measurement, the number of cases with data is given in parentheses..
aThe case is measured from the date of warrant to the date of decree, report of agreement or assignment to arbitration. Measurement deos not include time taken for an appeal to the High Court of Delegates.
bFees assesed for appeal to the High Court of Delegates are not included here.
Litigating strategy was not, of course, the sole factor determining the length of collision cases at Admiralty. Prosecuting a suit even to a default judgment, after the defendant had failed to appear, could take months in the busy court of the 1650s, and the judges would routinely order a monition published at the Exchange to give errant shipowners or mariners a last chance to show cause why sentence should not be executed.[72] When suit was joined, parties occasionally prolonged matters by appealing judgments to the High Court of Delegates. In Yaxley’s case, for example, the defendant owners were unhappy despite the ruling against them for only half damages. Perhaps they objected to Judge Godolphin’s decision to include in the damage calculation losses from detention of the plaintiff’s ship. But their appeal to the Delegates, whatever its basis, meant that final resolution at civil law was not reached for over four years, and Yaxley was still at Doctors’ Commons seeking execution of judgment more than seven years after he had filed suit.[73] In another case, Robert Clarke finally prevailed on appeal in 1663, but his ship had been damaged in 1658, and the £14 he won was less than a tenth of the claim he had filed nearly five years earlier.[74]
A result of deliberative process was that average court fees in collision cases, even without including the costs of appeals, were high relative to those paid in other venues or even in other types of Admiralty actions. Costs in a large sample of common law suits from the late seventeenth century rarely exceeded £5 and almost never £10.[75] The Admiralty Court assessed fees that averaged £7.7 in 360 cases involving matters other than collision during the years sampled here. But they assessed £13.6 in the eight collision cases for which there are data. London owners of the Freeman first paid £15 to defend against Yaxley’s suit in 1657, then £8 for their unsuccessful appeal to the Delegates.[76] And although the median figures given in Table 3 are based on few data, they suggest, first, that the costs charged in collision suits grew faster than in other Admiralty actions over the course of the century, and, second, that this was simply because the cases were taking much longer to litigate than those involving other matters.
V. Prohibitions and Decline
There was, of course, a final strategy available to parties who were losing at Admiralty in the seventeenth century: challenging the court’s jurisdiction by alleging that the matter was triable only at common law, a protest that could be raised either before or after judgment–even occasionally after execution of judgment–at civil law.[77] Thomas Newman and company faced such a challenge to their Admiralty suit in 1678. They had produced compelling, if circumstantial, evidence that their ship Lamb had sunk while at anchor in the Downs after being struck by the larger Rose and Crown. Sailors of the Rose and Crown had admitted, said witnesses, that they had run over another ship in the Downs on a night so dark that the men “could not discover their hands . . . if they held them up in the air,” and the Lamb was the only vessel in the area reported to have been damaged on that date. There was testimony that the master of the Rose and Crown, in order to avoid detection, had sailed on without stopping to put his Thames pilot ashore at Deal or Dover and had carried him all the way to Falmouth, a thing “scarce ever heard of.” The defendants had conceded the facts and asked for arbitration, but that could begin only when the Rose and Crown’s master had returned from abroad. In the meantime the case was proceeding to judgment at Doctors’ Commons, and the defendants scrambled to avoid a decree that would almost surely run against them. They sought a writ of prohibition from King’s Bench on grounds that the Admiralty Court had no jurisdiction over collisions in the Downs, a roadstead that, they alleged, was part of county Kent and therefore governed by common law. And although their lawyer failed to offer sufficient proof at Westminster, so that the judges granted a consultation, allowing the Admiralty case to proceed to sentence, the owners of the Rose and Crown had managed to drag out the litigation, and avoid paying £130 in damages, for more than two and a half years. By investing that sum in overseas trade during the interim, they might easily have gained enough to pay the extraordinary court costs of £25.[78] Such fees, nearly four times the median levy in all Admiralty cases from the sample years, may have been in part punitive, for they were assessed by Sir Leoline Jenkins, a judge who had called for legislation to prevent defendants like the owners of the Rose and Crown from using prohibitions to escape Admiralty authority.[79]
Common lawyers had aggressively revived their claims to a variety of maritime matters as soon as the Restoration parliament refused to renew Interregnum ordinances that had protected Admiralty powers.[80] The failure to halt process against the Rose and Crown by prohibition in 1678 does show that Westminster judges were not always ready, even late in the century, to take collision cases away from the civilians without first hearing a convincing argument. But if they doubted that the Downs was part of the county and within their reach, they could be persuaded about rivers and harbors. Common law judges denied Admiralty jurisdiction over cases involving Thames collisions in 1604, 1616 and 1618.[81] After the Restoration, they claimed authority over an incident in Weymouth harbor. More important, in 1664 they reasserted their powers over all collisions in the Thames by stopping Admiralty process against the Barbados Merchant, a ship driven by storm from her moorings at Wapping, Old Stairs, and carried downstream to Bell Wharf, where she had struck and sunk the Dolphin. [82] Indeed, the single collision suit prohibited in the sixteen years sampled here–in this case two months after sentence–also involved a crash in the river, one we have met before. In 1679, Captain Mustard obtained a writ setting aside Admiralty acquittal of the Hound’s crew and forcing Captain Arundell to prove once again, this time before common law judges, that his collier had not run over Mustard’s timber hoy in the early morning darkness at Clement’s Reach. Conversely, the remaining six cases from the seventies and nineties, those that Admiralty judges were allowed to determine without common law interference, had all followed from collisions in the open sea.[83] The present sample suggests, then, that roughly two thirds of collision disputes resolved at Admiralty before 1663 had originated in London’s crowded river, but that after the prohibition of the following year in Martin v. Green, few if any did. If prohibitions were as effective in preventing other kinds of maritime suits from being heard at Doctors’ Commons, the sharp and continued decline in Admiralty warrants beginning in the 1660s would be easy enough to explain.
The outcome of the jurisdictional quarrel over collision cases had clearly forced civil lawyers to yield space. Admiralty advocate Edward Simpson would concede in the 1750s that common law courts had authority over all suits involving collision in the Thames, indeed over all civil cases arising in any navigable river, and it seems that shipowners after 1664 had seldom risked prohibition by taking such business to Doctors’ Commons.[84] Thus, collision litigation declined in England’s central maritime court not because shipping traffic had slowed or merchants and masters had become less combative but because legislators and judges had changed the rules. First, it is clear that when the Restoration parliament abandoned statutory protection of Admiralty powers, the “weight of prohibition” prevented those involved in river crashes from securing remedies at civil law. Second, it appears that though Admiralty judges retained authority over cases involving collision on the high sea, shipowners were discouraged from filing these suits as well, perhaps because the civilians’ new substantive rules allowed for a finding of contributory negligence. Even if we were to triple the actual number of collision decrees from 1680 to 1699 in order to account for the prohibited river cases, the total decisions at Doctors’ Commons would have been exactly the same in these last two decades as in the period from 1640 to 1659, while the number of ships annually approaching the Thames had increased since mid-century by roughly a third.[85]
When Captain Anderson arrived at London on his damaged collier in 1677, he was ready, said a witness, to admit some fault for the collision off Tynemouth, share losses, and forgo Admiralty suit. Surely there were other potential plaintiffs in the second half of the century who were willing to compromise when warned of the probable outcomes at civil law. Had they filed a case after 1650, they likely faced prolonged litigation, could not expect to recover for detention, or win, because of the rusticum judicium, more than half the physical damages to their ships. Had they filed after 1675, they might even have been forced to bear part of the defendants’ losses according to the new no-fault formula. Thus, recently defined rules must have persuaded some parties to avoid risking principal loss, lengthy process, high costs–and incidentally jeopardizing the capital of other ship-owners–over matters of accident and shared responsibility. Such reluctance to sue would have been unhealthy for the Admiralty lawyer living by fees but not necessarily for the law or the shipping industry, for if the new and reasonable doctrine failed to satisfy some owners who were angry over losses from collision, it may have prompted them to accept the practice of insuring their ships.
George F. Steckley is a professor of history at Knox College. Support for this study came from the Faculty Research Fund and the Edgar S. and Ruth W. Burkhardt Fund for History at Knox College. The author is grateful to Martin Eisenberg, Becky Alyea, and the anonymous referees for their helpful comments on earlier drafts of the argument.
Notes
1. See, for instance, Matson v. Naylor, High Court of Admiralty, Public Record Office, Kew (hereafter HCA) 13/71, fols. 446-47, examination of William Cox, May 1657. Most of the cases cited in this article are unreported and in manuscript only. Admiralty scribes often gave case titles in more than one version, so I have adopted a standard and usually shortened title for each of the manuscript cases cited. In these citations only the names of the ships are italicized.
2. Office, promoted by Gwyn v. Ellis, 1659, HCA 3/46, fol. 2; 3/47, fol. 387; 3/48, fols. 190, 577; 13/72, fol. 209, examinations of John Stokes, Humphrey Hutchins, and Thomas Lovell.
3. Ralph Davis, The Rise of the English Shipping Industry (London: Macmillan, 1962), 87-88.
4. The sixteen years sampled for this study are italicized in Table 1. The research design was to read all instance cases in these years that were determined by decree, arbitration, or reported agreement. Warrant numbers and the literature on Admiralty jurisdiction suggest that the last relatively active period of instance litigation was from 1655 to 1662, and therefore these eight years were studied in an effort to discover reasons for decline. Then, for comparison, eight pairs of years were chosen for study at suitable intervals over the rest of the century. Warrants issued to begin Admiralty cases of all kinds exceeded decrees, court-ordered arbitrations, and recorded settlements in the sample years by a ratio of roughly seven to one, so that thirty such official determinations in collision cases suggest that perhaps as many as two hundred suits had been filed.
5. Admiralty decrees are found at HCA 24. Collision cases were frequently determined by interlocutory decrees inscribed only in the court’s Act Books (HCA 3). Therefore, both the court’s decrees and procedural record have been used to discover all collision decisions resulting during the sixteen sample years from interlocutory, first, or second (“definitive”) decrees, arbitrations assigned by the judges, or out-of-court agreements recorded by the scribes. In cases for which it is available, information has also been drawn from the Warrant Books (HCA 38), libels and allegations filed with the decrees (HCA 24), and examinations, that is, testimony taken at London or on commission elsewhere (HCA 13).
6. HCA 38/22-23, Warrant Books including 1639; HCA 38/31-37, Warrant Books covering 1655-62.
7. William S. Holdsworth, A History of English Law (1903-1972; reprint, London: Methuen, Sweet, and Maxwell, 1966), 1:564. I have verified that warrants for prize cases of the late 1650s were not being entered in the registries found at HCA 38. Matson v. Naylor (1657), HCA 13/71, fols. 446-47, testimony of William Cox, May 1657.
8. Charles George Cocke, English Law (London, 1651), 185.
9. C. W. Brooks, Lawyers, Litigation and English Society since 1450 (London and Rio Grande: Hambledon Press, 1998), 29-33.
10.The Civilian Writers of Doctors’ Commons, London: Three Centuries of Juristic Innovation in Comparative Commercial and International Law (Berlin: Duncker and Humblot, 1988), 298.
11. Daniel R. Coquillette, “Legal Ideology and Incorporation, IV: The Nature of Civilian Influence on Modern Anglo-American Commercial Law,” Boston University Law Review 67 (1987): 937-47.
12. M. J. Prichard and D. E. C. Yale, eds., Hale and Fleetwood on Admiralty Jurisdiction, (Publications of the Selden Society, vol. 108, 1993), cxvii-cxxix. For two examples of this general approach, see Holdsworth, English Law, 1:552-59; Henry J. Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court Admiralty, 1798-1828 (Cambridge: Cambridge University Press, 1987), 24-30. Modern accounts taking this approach usually rehearse the complaints about common law encroachment published in the early 1660s by such civilian judges as John Godolphin, Richard Zouch, and John Exton.
13. Holdsworth, English Law, 8:459-62; James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill and London: University of North Carolina Press, 1992), 2:1118-21.
14. I have not followed collision cases from Admiralty into the common law courts, although the findings here suggest the usefulness of doing so.
15. General conclusions about the decline in Admiralty litigation must await further study. Warrant totals from the 1620s through the 1640s were swollen by prize actions. Until their number can be extracted, it will be difficult to determine how sharply instance litigation fell away in the last half of the century or how many actions in the early decades had resulted in out-of-court settlements. Moreover, because the scribes did not regularly identify Admiralty plaintiffs by origin, it will not be easy to determine whether fewer provincial litigants were coming to Doctors’ Commons late in the century. For these issues as they relate to other courts, see Craig Muldrew, “The Culture of Reconciliation: Community and the Settlement of Economic Disputes in Early Modern England,” Historical Journal 39 (1996): 915-42; J. A. Sharpe, “‘Such Disagreement Betwyx Neighbours’: Litigation and Human Relations in Early Modern England,” in Disputes and Settlements: Law and Human Relations in the West, ed. John Bossy (Cambridge: Cambridge University Press, 1983), 172-87; Henry Horwitz and Patrick Polden, “Continuity or Change in the Court of Chancery in the Seventeenth and Eighteenth Centuries?” Journal of British Studies 35 (1996): 24-57; and W. A. Champion, “Recourse to the Law and the Meaning of the Great Litigation Decline, 1650-1750: Some Clues from the Shrewsbury Local Courts,” in Communities and Courts, ed. Christopher Brooks and Michael Lobban (London and Rio Grande: Hambledon Press, 1997), 179-98.
16. For a convenient survey of the seventeenth-century politics of jurisdiction, see Bourguignon, Sir William Scott, 15-30. See also these earlier studies: D. E. C. Yale, “A View of the Admiral Jurisdiction: Sir Mathew Hale and the Civilians,” in Legal History Studies, 1972: Papers Presented to the Legal History Conference, Aberystwyth, 18-21 July 1972, ed. D. Jenkins (Cardiff: University of Wales Press, 1975), 87-109; Brian P. Levack, The Civil Lawyers in England (Oxford: Clarendon Press, 1973); and G. F. Steckley, “Merchants and the Admiralty Court during the English Revolution,” American Journal of Legal History 20 (1978): 137-75.
17. Bernard Capp, Cromwell’s Navy (Oxford: Oxford University Press, 1989), 4-6, 9; Lord Protector v. Joshua (1657), HCA 3/47, fol. 401; 3/48, fol. 40.
18. Thomson and others v. Elizabeth (1609), HCA 3/27, fol. 170; 13/40, fols. 41-42; 24/ 73/259, 261.
19. Fortrey and others v. Elizabeth and Robbins (1628), HCA 13/46, fols. 63-66, 452, 508.
20. Newman and others v. Rose and Crown (1679), HCA 3/54, fols. 2, 244, 379; 13/78, examinations of Andreas Veale, Robert Biffen, Harbert Alwyn, David Lockwood, William Lee, Samuel Stone; 13/131, answers of Jacob Lucy and Samuel Swinock; 24/118/42, 24/ 119/11, 15, 47, 153, allegations and decree.
21. Busbridge v. Chalk Hoy (1608), HCA 3/27, fol. 164; 24/73/43, 392.
22. Mustard and others v. Hound (1678), HCA 3/54, fols. 55-56, 128; 13/78, 27 May 1678, and examinations of John Badland, Joris Wind, James Mathews, Richard Wakefield, Edward Barnet, William Hersey; 24/119/36.
23. London’s share of Newcastle’s shipments, already at 69 percent in 1615, would reach 80 percent by the end of the century. Brian Dietz, “The North-East Coal Trade, 1550-1750: Measures, Markets and the Metropolis,” Northern History 22 (1986): 286, 288. John Evelyn, Fumifugium (1661), in The Writings of John Evelyn, ed. Guy de la Bédoyère (Wood-bridge: Boydell Press, 1995), 138, 147-48.
24. Keith Wrightson estimates London’s importation of coal in 1640 at 300,000 tons. See Earthly Necessities: Economic Lives in Early Modern Britain (New Haven: Yale University Press, 2000), 170. Total London imports from Newcastle and Sunderland had reached 395,125 tons by 1682/83. Dietz, “North-East Coal Trade,” 292, table 2. John Chartres estimates four to six voyages per year for a collier in the Newcastle-London trade. See “Food Consumption and Internal Trade,” in The Making of the Metropolis: London, 1500-1700, ed. A. L. Beier and Roger Finlay (London: Longman, 1986), 189. Davis implies that the average collier supplying London carried less than one hundred tons, many presumably only thirty-five to fifty tons. Davis, Rise of English Shipping, 60, 72, 207.
25. Mustard and others v. Hound (1678), HCA 3/54/66, fol. 128; 13/78, 27 May 1678, examinations of John Badland, Joris Wind, James Mathews, Richard Wakefield, Susanna Potter, Edward Barnett, William Hersey; 24/119/36, decree.
26. Davis, Rise of English Shipping, 92-93.
27. Yaxley and others v. Freeman (1657), HCA 3/47, fol. 517; 3/48, fols. 302, 360, 453, 542, 600; 3/49, fols. 27, 121; 13/70, 24 Nov. 1654, examinations of John Page, Richard Cockett, Samuel Brown, George Putt; 13/71, fols. 366-68, examinations of Richard Cawcot, Samuel Brown, William Fisic; 24/111, 322, libel; 24/112/62, 209, allegations; 24/113/ 67, 212, definitive sentence and bill of expenses; High Court of Delegates, Public Record Office, Kew (hereafter DEL), 5/16, decree. For Yaxley as a veteran collier master, see Roger Howell, ed., Monopoly on the Tyne, 1650-58, (Society of Antiquaries of Newcastle upon Tyne, 1978), 39-43.
28. For a fleet of sixty colliers leaving Newcastle together in October 1658, see Sorrell v. Agreement (1659), examination of Edward Keete, HCA 13/72, fol. 711. For nearly seventy merchantmen and convoy leaving Portsmouth in 1696, see Basil Lubbock, ed., Barlow’s Journal (London: Hurst and Blackett, 1934), 2:459-60. For fleets of merchantmen leaving or arriving together in the Downs, see G. F. Steckley, ed., Letters of John Paige (London: London Record Society, 1984), 116, 129.
29. Lord Protector v. St. Jacob (1658), HCA 3/48, fol. 132; F. R. Sanborn, Origins of the Early English Maritime and Commercial Law (New York and London: Century Co., 1930), 295.
30. Huntington and co. v. Waterhound and Constant (1656), HCA 3/46, fol. 400; 3/47, fol. 61; 24/112/65, allegation on behalf of Huntington.
31. Swyer and co. v. Phoenix (1660), HCA 3/49, fol. 104; 13/72, fol. 208, examination of Henry Tiddiman; 24/113/173, allegation on behalf of Church; 24/114/89, definitive sentence.
32. Bourguignon, Sir William Scott, 71, 94; Prichard and Yale, eds., Hale and Fleetwood, vi, xlvi. An eighteenth-century Admiralty practitioner noted that the judge must consider the circumstantial evidence submitted by the crews of both ships. HCA 30/1042, 304.
33. Ditton and co. v. St. Christopher (1608), HCA 24/72, printed foliation, 144, allegations on behalf of Ditton and co.
34. Ibid., printed foliation, 12, allegation on behalf of Hacker and Bond; 24/73, manuscript foliation, 444, decree.
35. See Bourguignon, Sir William Scott, 97.
36. Barnardo and others v. Sarah (1609), HCA 3/27, fols. 358, 376; 13/39, examinations of George Wood and Thomas Maynard, 5 Nov. 1607, Thomas Davis, 3 May 1608, Edward Goodale, 23 May 1608; 24/73, manuscript foliation, 269, decree.
37. Abbott and others v. Trial (1629), HCA 13/47, fol. 349ff., examinations of Edward Arblebeere, Thomas Humphrie, Edward Merritt; 24/85/198, decree.
38. Hall v. Accord (1656), HCA 3/48, fol. 210; 24/111/189, libel; 24/112/240, sentence. It was more than five years after the collision before Hall received the £19 decreed him by the court.
39. Beake and co. v. Piper (1655), HCA 3/46, fols. 38, 51, 84, 100, 372, 377, 382; 24/ 111/274, libel; 24/112/74, decree.
40. Harper and co. v. Adventure (1678), HCA 24/118/9-10, allegations.
41. Law and co. v. Samuel (1659), HCA 24/112/244, allegation on behalf of Lee.
42. Cooper and co. v. Samuel’s Delight (1659), HCA 13/264, examinations of William Thurloe, William Bedinham, Mordecai Steele.
43. Renew v. Hopewell (1698), HCA 24/125/333, allegation for Humble.
44. Harper and co. v. Adventure and Gravenor and co. (1678), HCA 24/118/10, allegation for Harper.
45. R. G. Marsden, ed., Select Pleas in the Court of Admiralty (Selden Society, 1892, 1897), 1: lxxii: “With the possible exception of the award of arbitrators in the case of Hand-cocke c. Payne . . . no trace occurs during the sixteenth century of the rusticum judiciumor division of loss where both ships are in fault for a collision.” See Select Pleas, 2: lxxxiiilxxxv, for Marsden’s earliest summary of seventeenth-century collision decisions. He gives virtually the same list in his Treatise on the Law of Collisions at Sea, 7th ed. (London: Stevens and Sons, 1919), chap. 6, especially 158-63. See Bourguignon, Sir William Scott, 96-101.
46. Harbyn v. Berry (1648), Burrell, 235.
47. Cooper and co. v. Samuel’s Delight (1659), 13/264, examinations of William Thurloe and others; 24/114/34, sentence, 9 December 1659. Although the interlocutory decree of 13 November 1657, which reduced damages by half, was suspended by agreement of both parties to allow further allegation and proof, it was essentially reinstated in the definitive sentence of 9 December 1659. HCA 3/47, fol. 509, 13 Nov. 1657, 3/48, fol. 181, 30 Nov. 1658.
48. Yaxley and co. v. Freeman (1657), HCA 24/113/67. The entry in the Act Book for 21 November 1657 reports that the new draft was accepted and promulgated by the judges on that day, within hours presumably after the first draft was rejected by Godolphin. The signed decree itself, however, is dated 25 November.
49. Harper and co. v. Adventure (1678), HCA 3/54, fol. 54, sentence; 24/118/10, allegation for Harper; 24/118/9, allegation for Gravenor and co.
50. Jermine and co. v. Castle (1679), HCA 3/54, fol. 97; 13/78, 13 Sept. 1677; 24/118/ 47-48, allegations for Shadforth and co.; 24/118/55 and 24/119/14, allegations for Jermine; 24/119/44, decree.
51. Renew v. Hopewell (1698), HCA 3/61, fols. 85, 96; 24/125/333, allegation for Humble; 24/126/16, allegation for Humble; 24/126/71, decree; Burrell, 280-81.
52. Renew v. Hopewell (1698), HCA 3/61, fol. 96. Marsden found the first application of the rule in Williams v. Marten (1675) (Law of Collisions, 7th ed., 162), and he describes eighteenth-century applications (163-65). Simpson offers the eighteenth-century comment about the formula. HCA 30/1042, p. 335.
53. For a modern treatment of detention, see Marsden, The Law of Collisions at Sea, British Shipping Laws 4, rev. K. C. McGuffie (London: Stevens and Sons, 1961), 537-65. A witness thought it appropriate to seek damages for freight forfeited when a collision prevented safe arrival. Mustard and co. v. Hound (1678), HCA 13/78, examination of Joris Wind, 31 May 1678. Owners of the William alleged a loss of £5 to £10 for delay of her voyage from Gainsborough to Shields, but the case was settled without judicial decision. William Huntington and co. v. Waterhound (1656), HCA 3/47, fol. 61; 24/112/65, allegation for Huntington. Otter, master of the Providence, testified that his ship and her owners had lost a freighting already contracted in the port they had failed to reach because of the collision. Law and co. v. Samuel (1659), HCA 13/71/443, examination of William Otter.
54. Hall v. Accord (1656), HCA 24/111/189, allegation for Hall; 24/112/240, decree.
55. Yaxley and co. v. Freeman (1657), HCA 24/111/322, allegation that includes damages of £100 for the time detained; 24/113/67, three drafts of the decree, with one signed, 25 Nov. 1657.
56. Newman and co. v. Rose and Crown (1679), HCA 3/54, fol. 379, judge’s calculation; 24/119/153, decree; 24/118/42, allegation that includes the claim that £50 in freight was lost when the ship was idled for repairs.
57. Jermine and co. v. Castle (1678), HCA 24/118/55, allegation for Jermine.
58. If the median award in collision cases was somewhat lower than that in all other Admiralty cases from the sample years, £78 as opposed to £87, the average award in collision cases, £242, was roughly 30 percent higher than the average award in all other types of suit.
59. Commonly, however, court scribes would rearrange citations in other documents, such as the Act or Examination Books, and give owners’ or masters’ names first.
60. A memorial for Mr Green touching the settlement of the court of Admiralty, HCA 30/ 1036, fols. 150-52, may be notes for the M.P. by that name, who in 1646 reported to the Commons an ordinance for “settling a jurisdiction in the Admiralty Court.” House of Commons Journals, iv, 720. Item six of the memorial reads: “For damage done by one ship to another in navigable rivers and upon anchors without buoys and the like: no remedy can be had at the common law against the ship; and the persons for the most part are poor and insolvent and so the subject left remediless if he should be denied remedy against the ship in the court of Admiralty.” For a mid-eighteenth century statement of in rem procedure in collision cases, see HCA 30/1042, 314. But a striking feature of the sample studied here is that only two of the thirty cases resulted in default judgments. Instead, the defendants almost always chose to contest the action and rarely was possession of the ship awarded to a winning plaintiff, as in the Beake and Busbridge cases noted below. Part of the explanation may lie in the advent of divided damages.
61. HCA 30/1042, 207.
62. Beake and co. v. Piper (1655), HCA 3/46, fols. 38, 84, 100, 382; 24/111/274, libel for Beake; 24/112/74, decree.
63. Busbridge and co. v. Chalk Hoy (1608), HCA 3/27, fol. 164; 24/73, manuscript foliation, 392, decree.
64. Law and co. v. Samuel (1659), HCA 3/48, fols. 190, 602; 24/113/231, decree. See also Beake and co. v. Piper (1655), HCA 3/46, fol. 372.
65. Ditton and co. v. St. Christopher (1608), HCA 24/72, printed foliation, 12. Harbert Aylwin was described as merely a London agent for the Dartmouth owners, paying fees but not giving instructions to the lawyers, and his testimony was allowed. Newman and co. v. Rose and Crown (1679), HCA 13/78, examination of Harbert Aylwin, 4 Nov. 1678.
66. Ditton and co. v. St. Christopher (1608), HCA 24/72, printed foliation, 12, allegation.
67. Cooper and others v. Samuel’s Delight (1659), HCA 3/48, fol. 361. A Harwich mariner serving Scottish owners was ordered to testify before his ship left London. Thomson and co. v. Elizabeth (1609), HCA 3/27, fol. 171.
68. Newman and co. v. Rose and Crown (1679), HCA 3/53, fol. 467; 3/54, fols. 44, 244.
69. Determination of the case could include one of the following: the Admiralty judges’ recognition of an agreement between the parties, their assignment to arbitration by appointed experts, the court’s interlocutory, first, or second decree, or an appellate decision rendered by the High Court of Delegates. For comparative purposes here, the time consumed by appeal in the few cases taken to the Delegates has not been included in the calculations.
70. Wage cases of the sample years were decided on average in about a quarter of the time required for collision cases. This was due in part because of the summary process frequently used in wage litigation, but also because the court so often awarded full wages that defendants had little to gain from delay, except higher court costs. See G. F. Steckley, “Litigious Mariners: Wage Cases in the Seventeenth-Century Admiralty Court,” Historical Journal 42 (1999): 315-45. Fully 77 percent of the collision cases studied here went to sentence, as opposed to agreement, arbitration or default judgment, while the share of all cases from the sample years reaching sentence, rather than one of these other outcomes, is only 20 percent. This is probably explained by three features of many collision cases: the relatively high stakes involved, the uncertainty with respect to fault, and therefore the likelihood that the defendant could avoid full damages by contesting the suit.
71. Law and co. v. Samuel (1659), HCA 3/47, fols. 101, 148, 255, 334, 339, 368, 393, 473, 532, 538; 3/48, fols. 161, 176, 190, 212, 435, 587, 602; 13/71, fols. 443, 497, 502 24/ 112/244, allegation for Lee, 24/113/231, decree.
72. Beake and co. v. Piper (1655), HCA 3/46, fol. 84, the first decree issued nearly two months after the warrant of arrest. Francis Clerke, Praxis supremae curiae admiralitatis (London: H. Butterworth, 1829), 134-35.
73. Yaxley and co. v. Freeman (1657), HCA 3/48, fol. 302, 3/49, fol. 131.
74. Clarke and co. v. Susan (1661), HCA 3/48, fol. 522; 24/113/158, 24/114/44, 24/114/ 123, Admiralty judgment that Clarke had failed to prove the libel; DEL 5/17, Delegates’ decision reversing the Admiralty ruling; Burrell, 243 (June 1663). The warrant of arrest beginning the case had issued on 5 August 1658. It was three years from the time of the collision, 5 May 1653, before John Hall won £19 in damages, 22 Dec. 1656, and another two years before he received payment from the defendants. Hall v. Accord (1656), HCA 3/ 48, fols. 183, 210; 24/111/189, libel; 24/112/240, decree.
75. C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England (Cambridge: Cambridge University Press, 1986), 105. Brooks finds that early modern chancery costs were substantially higher, frequently in the range of £10 to £15 and sometimes as high as £20.
76. Yaxley and co. v. Freeman (1657), HCA 3/48, fols. 321, 504; 24/113/212, bill of expenses; DEL 5/16, decree.
77. When Sir Leoline Jenkins addressed the Lords in 1670 to defend Admiralty powers, he complained of a case in which the jurisdictional issue had been raised even after appeal and execution. Captain Rand had successfully sued for his wages at Doctors’ Commons in 1668, and the sentence was upheld on appeal to the Delegates. But after paying the award and costs, the defendant Gosling challenged Admiralty jurisdiction by suit at common law and recovered £80, not from Rand, who “happened to die pending the action,” but from “his poor Relict and Administratrix.” Leoline Jenkins, “Argument in behalf of a bill to ascertain the jurisdiction of the Admiralty,” in William Wynne, Life of Sir Leoline Jenkins (London, 1724), 1: lxxxi.
78. Newman and co. v. Rose and Crown (1679), HCA 3/54, fols. 2, 244, 379, 432; 13/31, answers of defendant owners; 13/78, examinations of Andreas Veale, Robert Biffen, Har-bert Aylwin, David Lockwood, William Lee, and Samuel Stone; 24/118/42, 24/119/11, 15, 47, allegations; 24/119/153, decree.
79. Jenkins, “Argument in behalf of a bill,” in Wynne, Life of Jenkins, 1: lxxvi-lxxxv. See Prichard and Yale, eds., Hale and Fleetwood, cxx-cxxvii, for an extended commentary on Jenkins’s speech.
80. Prichard and Yale, eds., Hale and Fleetwood, xlix-lxxxvii, cxvii-cxx; Bourguignon, Sir William Scott, 26-27.
81. The report of Violet v. Blague, Cro. Jac. 514 (1618), refers to the case of 1604. Dorrington’s Case, Moore 916 (1616), involved a collision in the Thames. The judges in 1607 had questioned the Admiralty’s powers to decide whether a Newcastle collier was blocking access to Smart’s Key in the Thames. Tomkins c. Gooden (1607), Prichard and Yale, eds., Hale and Fleetwood, 295.
82. Elwill v. Wiggett (1664), in Marsden, Law of Collisions at Sea (1961), 191, n. 17. Martin v. Green, 1 Keble 730 (1664), HCA 24/114/173-74, allegation for Green.
83. Mustard and co. v. Hound (1678), HCA 3/54, fol. 128.
84. HCA 30/1042, 57, 304, 330, 332, 335. It was apparently exceptional that Judge Marriott, Scott’s predecessor on the Admiralty bench, aggressively refused in 1798 to dismiss a case involving a collision in the Thames. Bourguignon, Sir William Scott, 100.
85. Marsden and I have found twenty-seven Admiralty collision decrees from the period 1640-59 and nine from 1680-99. For estimates of the increasing numbers of ships arriving at London from foreign ports in the last half of the century, compare D. C. Coleman, The Economy of England, 1450-1750 (Oxford: Oxford University Press, 1977), 133, with Brian Dietz, “Overseas Trade and Metropolitan Growth,” in The Making of the Metropolis, 128, table 11, and Henry G. Roseveare, “‘The Damned Combination’: The Port of London and the Wharfingers’ Cartel of 1695,” London Journal 21 (1996): 109, n. 40.