The defendant, in an action brought against him for damaging the Chap. 3. plaintiff's ship by collision, is not entitled to deduct from the amount of damages a sum of money paid to the plaintiff by insurers in respect of such damage. The plaintiff will hold so much of the damages as amounts to the sum so paid to him by the insurers as trustee for them (f). In case of damage done by a vessel of the Crown, the legal responsibility rests with the actual wrong-doer. Where a collision was caused by the commander of a Queen's ship anchoring too near the damaged vessel in squally and tempestuous weather, he was condemned in the damage (g). A judgment in rem in the Court of Admiralty is no bar to subscquent proceedings in personam in the High Court of Justice unless the proceeds of the ship are at least equal to the amount of damage suffered (h). It has been held that the owners of a barge, sunk by unavoidable accident in a public navigable river, have no duty thereby cast upon them to remove it, or to use, after it has ceased to be in their possession and control by their abandoning it or transferring it to another person, any precaution by placing a buoy, or otherwise, to prevent other vessels striking against it; and are therefore not liable to an indictment or to an action at the suit of a party sustaining damage by reason of their omitting so to do (i). And in an action for damage done to the plaintiff's vessel by the defendant's mooring anchor, which had been removed from the place in a navigable river where it had been for some time known to be, without anything to indicate its new position, the declaration was held bad on demurrer for not showing that the defendants were privy to the removal of the anchor, or alleging any duty on them to refix it, or indicate its new position (k). As to owners of vessels being liable for damage done to piers, &c., see 10 Vict. c. 27, s. 74, and The River Weir Commissioners v. Adamson, 47 L. J. Q. B., &c., 193; the Cynthia, 46 L. J. Ad. 56 ; L. R. 2 P. D. 52, where a vessel was held liable for negligently carrying out the orders of a dockmaster. The Bilbao, 1 Lush. 149; Dennis v. Tovell, 42 L. J. M. C. 33; L. R. 8 Q. B. 10, where a vessel by inevitable accident struck against a pier and damaged it. The Excelsior, 37 L. J. Ad. 54; the M. Moxham, 46 L. J. Ad. 17; L. R. 1 P. D. 43, 107, where a British ship did injury to a pier in Spain and it was held that the Spanish law was applicable. (f) Yales v. White, 4 B. N. C. 272. Mason v. Sainsbury, 3 Dougl. 61. (g) The Mentor, 1 Rob. 179. The Athol, 1 Wm. Rob. 381. The Volcano, 2 W. Rob. 337. The Birkenhead, 3 W. Rob. 75. (h) Nelson v. Couch, 33 L. J. C. P. 47. See ante, p. 579. () Rex v. Watts, 2 Esp. 675. Harmond v. Pearson, 1 Camp. 515. Brown v. Mal lett, 5 C. B. 599. White v. Crisp, 10 Ex. 312. The Lords, &c., of Romney Marsh v. The Corporation of the Trinity House, 41 (k) Hancock v. The York, Newcastle and Part VI. CHAPTER IV. OF MARITIME LIENS; AND HEREIN, SECT. 1. Of the Definition and Nature of Maritime Liens, p. 594. 3. Of Marshalling Assels for their Protection, p. 599. 5. Of Procedure in Admiralty to enforce them, p. 602. 6. Maritime Law of Foreign States as to Priority of Liens, &c., p. 607. 1. Of the Definition and Nature of Maritime Liens. IN the preceding pages we have seen that persons who have rendered services to a ship by their labour as mariners, by pilotage, towage, salvage, and the loan of money on bottomry for repairs or necessaries, may obtain compensation or reimbursement from its owners by proceedings in rem--that is, against the ship itself in the Court of Admiralty. We have seen, also, that the owners of a ship, which has been injured by collision, are at liberty to seek their remedy in a cause of damage instituted in that court against the ship, to the mismanagement of which the injury is imputed, and that by the marine law, and the maritime codes of foreign nations, the ship is bound (a), that is, affected, with a privileged charge (b) for the security of the claims above mentioned. (a) Ante, p. 99 et seq., in notes. Ships, he Code de Commerce (liv. 12, tit. 1, p. 190), are "affectés aux dettes du vendeur et spécialement à celles que la loi déclare privilégiés. See ante, p. 216. The meaning of a privilege is thus explained in the French Code, "Les biens du débiteur sont le gage commun de ses créanciers, et le prix s'en distribue entre eux par contribution, à moins qu'il n'y ait entre les créanciers des causes légitimes des préférence." Code Civil, liv. 3, tit. 18, ch. 1, No. 2093. "Les causes légitimes de préférence sont les priviléges et hypothèques," No. 2094. "Le privilége est un droit que la qualité de la créance donne à un créancier d'étre préféré aux autres créanciers même hypothécaires," ch. 2, No. 2095. "Entre les créanciers privilegiés "Les la préférence se règle par les différentes qualités des priviléges," No. 2096. créanciers privilégiés qui sont dans le méme rang sont payés par concurrence,” No. 2097. (b) Affectés par privilége, Valin. Comm. sur l'Ordonnance, liv. 3, tit. 1, art. 11. A maritime lien accrues from the instant of the circumstances creating it, and not from the time of the intervention of the court. (The Pacific, 33 L. J. Ad. 120.) The preceeding in rem makes perfect the lien which was inchoate from the moment the lien attached. But a party by proceeding in rem under the 24 Vict. c. 10, s. 35, which enacts that the jurisdiction conferred by that Act on the High Court of Admiralty may be exercised by proceedings in A maritime lien-differing, like the hypothec of the Scotch Chap. 4. law (c), from a common-law lien, in this particular, that it exists without possession, actual or constructive, of the subject on which it is established-is a privileged claim upon a thing in respect of service done to it, or injury caused by it, to be carried into effect by legal process (d). That process issues in this country from the Court of Admiralty, which takes possession, by its officers, of the ship, freight, or cargo upon which the privilege is alleged, inquires into its merits, and (in the case of several claims) prefers or postpones it, if admitted, according to an order in which the dates of the services rendered, and not the intrinsic value of them, determine their precedence. The simplest illustration of this principle is the case of distinct claims of the like nature, founded e. g. on bottomry bonds. It has been stated, in an earlier part of this Treatise (e), that if two bonds have been given, the last in point of date is entitled to priority of payment, because the last loan furnished the means of preserving the ship; and without it, the former lenders would have entirely lost their security, salvam fecit totius pignoris causam (ƒ). 2. Of their Ranking and Priority inter sc. Subject to this preference in respect of posterior date, all liens suable in Admiralty, and arising ex contractu or quasi ex contractu (g), as for wages, bottomry, pilotage, towage (h), and salvage (i), are esteemed to be equal and co-ordinate. Where the Court of Admiralty, at the suit of a prior petens decrees the sale of a res, the proceeds of which are exhausted by his judgment, all other creditors who had liens upon it, and who before the decree would have been admitted on their petition to compete with him, are thenceforth concluded, and the res in the hands of its purchaser is discharged of their liens (k). If a surplus remains after satisfying the decree, the rest of the suing creditors of equal grade will be entitled to share it rateably. But until decree pronounced, the liens of all who have rem, only obtains the security of the res from the time it is attached by the process of the court. See the Ella A. Clarke, 32 L. J. Ad. 211; the Bold Buccleugh, 7 Moore, P. C. 267; the St. Olaf, 38 L. J. Ad. 41 ; L. R. 2 P. D. 113. As to the difference between a maritime lien and a proceeding against the res, see the Pacific, 33 L. J, Ad. 120. The Gustaf, Lush. 586; 31 L. J. Ad. 207. (c) Hypothee is a security established by law to the creditor on goods continuing in the debtor's possession. Erskine's Principles. (d) See ante, p. 106. See Hingston v Wendt, 45 L. J. Q. B. 110; L. R. 1 Q. B. D. 367, ante, p. 528, as to the master's lien for (e) Ante, p. 117. (g) The Gazelle, 3 Notes of Cases, 79. () As to salvage in respect of preserva- (k) The Saracen, 2 W. Rob. 453; 11 Jur. 255; 6 Moore, P. C. 56. The Clara, the Desdemona, Swab. 158. Part VI. been diligent to submit them to judicial examination, take rank, without preference of the creditor by whom the proceedings have been initiated, according to the relative lateness of the services in which they have their origin. He who appears by this test of time to have the prior right or lien in law, will be paid first out of the proceeds of the res on which it attaches; the next, and the next to him, must be satisfied with what remains unforestalled, however insufficient it may be to meet his demand (a). It is obvious, that in the application of this principle, the very nature of some liens will often secure to them priority over others. The wages, e. g., of the mariners, earned by the service of bringing the ship to her destined port, have insured the eventual value of all services previously rendered, and therefore obtain priority over other liens ex contractu or quasi ex contractu, as for salvage, pilotage, towage, or bottomry (6). Wages antecedently earned, as in an outward or divided voyage, or due under contract at the expiration of stipulated terms, without reference to the ship's arrival at the port of final destination, have been postponed to subsequent salvage (c), but no such distinction will give bottomry precedence over them (d). It has priority of prior salvage (e), and gives way to subsequent salvage, pilotage, and towage (f). These instances will suffice to exemplify the pervading general rule, that the services which, in the words of Sir JOHN NICOLL, "operate for the protection of prior interests" (g) are privileged above those interests. Bottomry, being the result on the part of the lender, of a calculation of risk to which the stipulated premium is made commensurate, is not regarded quite so favourably as other liens ex contractu; and, on the other hand, salvage, a service rendered often at great risk of property and life to the salvors, and without which the res might have been wholly lost with all the liens and interests attaching to it, is liberally considered by the law, yet not so as to obtain priority over subsequent bottomry or wages (h). The 191st sect. of the Merchant Shipping Act, 1854, does not (a) The Constancia, 2 W. Rob. 405. See the Clyther, 5 Ir. Jur. 317, where the second bondholder had notice of the prior bond. (b) Ante, p. 489. The Madonna d'Idra, 1 Dods. 40. The Sidney Cove, 2 Dods. 13. The Constancia, 4 Notes of Cases, 520. The Hersey, 3 Hagg. 407. See the William Safford, 1 Lush. 69, where it was held that a claim by a person who had paid wages to the ship's crew at the request of the master on account of the ship, was in the nature of a wages claim, and entitled to the same priority (but see post, p. 602). (e) The Selina, 2 Notes of Cases, 18; and the judgments of Dr. LUSHINGTON in the Mary Anne, 9 Jurist, 95. The Union, 1 Lush. 128. But see the observations of Lord STOWELL in the Sidney Cove, 2 Dods. 13; and of Judge STORY, in the Brig Nestor, 1 Sumner's Rep. (Am.), p. 86; and see the Jonathan Goodhue, Swab. 524. (d) Madonna d'Idra, 1 Dods. Rep. 40. Constancia, 4 Notes of Cases, 68. The William Safford, 1 Lush. 71. The Union, 1 Lush. 128. (e) The Selina, supra. The Favorite de Jersey, 2 Rob. Rep. 232. (f) The Dowthorpe, 2 W. Rob. 79. The Gustaf, 31 L. J. Ad. 207. (9) The Sidney Core, supra. La Con stancia, 2 W. Rob. 405; and 4 Notes of Cases, 518. Duke of Bedford, 2 Hagg. 304. The Eliza, 3 Hagg. 89. (h) The Selina, supra. alter the relation of the master to the scamen, and he cannot compete Chap. 4. with them to their detriment for a share in a fund (i). A master who has bottomried his ship by a bond, binding himself as well as the ship and freight, cannot, against the claim of the bondholder, assert the lien for wages, which, "so far as the case permits," he now has under the Merchant Shipping Act. To allow precedence to his lien would operate to the injury of those to whom he has made himself personally responsible, and to whom he has hypothecated the very fund from which he seeks preferential payment (k). The maritime lien of damage originating in the wrong of the Priority of master and crew of the vessel in fault, and founded on considerations lien for damage done. of public policy for the prevention of careless navigation, takes precedence within the limits which the law assigns to the indemnification of the injured party, even though anterior in date,-of liens, ex contractu (1). It absorbs, in the event of the res proving insufficient to meet all demands, the liens of wages, towage, pilotage, and bottomry, leaving them to be enforced by proceedings against the persons of the owners. Were it otherwise, the owners to whom the damage is imputed would be indemnified at the expense of the injured partythe wrongdoer at the cost of him to whom the wrong has been done (m). The suitor, in a cause of damage, is entitled to a restitutio in integrum. This has been held to include an outlay which, though probable, would have been discretionary if there had been no collision, and was made indispensable by the collision. Compensation for the expenses attending the detention of the damaged ship, and the amount of profit lost by such detention, also form part of it. Discount, on a charge for repairs, if received, or which might have been received if demanded, is a proper item of deduction. (See ante, p. 577, n.) The lien of damage is preferred to prior bottomry on the ground that the owner could only hypothecate his vessel subject to its legal liabilities (n). "I apprehend," said Dr. LUSHINGTON, in the case of the Aline (0), "that the mortgagee and the bondholder cannot take any right greater than the owners could confer, viz., a lien on the ship as a security against the owner and all who claim under him. Neither of them could be a competitor with a successful suitor in a cause of damage; and for this reason, that the mortgage or bottomry bond might, and often does, extend to the whole value of the ship; if, therefore, the ship was not first liable for the damage she had (i) The Salacia, 32 L. J. Ad. 41. As to the master's lien for wages, see ante, p. 491. This lien will in general rank next after the seamen's, and though he be a partowner. The Feronia, 2 L. R. Ad. 65; 32 L. J. Ad. 60. (k) The Jonathan Goodhue, Swab. 524. The Priscilla, Lush. 1. The master's covenant is not for the benefit of the holders of cargo, and therefore the owners of cargo are not entitled to invoke a rule established for the protection of the bondholder alone. (1) The Benares, 7 Notes of Cases, 51, (m) The Linda Flor, Swab. 309. (n) The Benares, 7 Notes of Cases, 54; suppl. (0) 1 Wm. Rob. Rep. 119. |