licensed, and for compensation to him in case of breach of that provision (n).

Effect was given to this provision by the Vice-Admiralty Court of Quebec, the court at the same time considering how far the provision was or was not repugnant to section 357, M. S. Act (Imp.) (0).

TOWAGE.

Towage is one of the matters specified in s. 6 of 3 & 4 V. c. 65, p. 193, ante, it having been thereby enacted that the High Court of Admiralty (now the Admiralty Division of the High Court, Eng.), should have jurisdiction to decide all claims and demands whatsoever (as there enumerated) inter alia, "in the nature of towage." This subject of jurisdiction was described in The Vice-Admiralty Courts Act, 1863, now repealed as "Claims in respect of Towage." It has recently been decided that the provision first named gave no maritime lien.

An action was brought in the Chancery Division by a holder of mortgage debenture bonds of a company on behalf of himself and the other holders of like bonds, for the realization of their securities, and a receiver was appointed, and an order made for winding up the company, and official liquidator appointed. The owners of four steam tugs, creditors of the company, asked for a declaration. that they were entitled to a lien for towage services upon the vessels of the company, and to be paid their claims in full, with costs out of the proceeds of sale of the vessels of the company. It appeared that the services rendered were ordinary towage of the vessels in and out of the harbour, and for accelerating their speed. Held (following opinions expressed in The Henrich Bjorn, 11 App. Cas. 270), that the Act, 3 & 4 V. c. 65, s. 6, did not create a maritime lien for ordinary towage services rendered to a ship, not in the nature of salvage. Jurisdiction as to towage existed before that Act, but with no maritime lien (p).

(n) R. S. C. c. 80, s. 39.

(0) The Farewell, 7 Que. L. R. 380; 2 Cartwright, 378.

(p) Westrup v. Great Yarmouth Steam Carrying Co., L. R. 43 C. D. 241; The Sara, 14 App. Cas. 209.

Where there is negligence in the performance of towage services resulting in the loss of the vessels to which the service is being rendered, the owners of the tugs are liable (q).

The owners of a steamship were held bound by a towage contract entered into by a person employed by them to superintend―(although not the master)—the towage of the vessel in sections, it being too large to pass through the canals on the course to its destination, and a judgment for the tug owners upon proceedings in rem was upheld by the Supreme Court. For report of judgment on appeal by the Registrar of that court see Cassel's Dig. 1875-1893, p. 522 (r).

Services begun as towage may become salvage services (s).

A tug has the right to cast off her tow in stress of weather when the latter is overrunning her (t).

NECESSARIES.

By 3-4 V. c. 65, s. 6, p. 193,ante, jurisdiction was conferred upon the High Court of Admiralty to decide all claims and demands whatsoever for necessaries supplied to any foreign ship or seagoing vessel; and by 24 V. c. 10, s. 5, p. 195, ante, that jurisdiction is over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown that-at the time of the institution of the cause no owner or part owner of the ship is domiciled in England or Wales. These two statutes are to be read

in pari materia (u).

The following things have been held to be necessaries : Cables and rigging. The Sophie, 1 W. Rob. 368; clothing for the crew, The Feronia, L. R. 2 Ad. 65, 37 L. J. Ad. 60; a screw propeller for a steamship, The Hecla, 1 Spk. 441;

(g) Sewell v. British Columbia Towing and Transportation Co., 9 S. C. Rep. 529.

(r) The Athabasca, Canadian Pacific Ry. Co. v. Neelon, 5 C. L. T. 600, and Cassel's Dig. supra.

(8) Vide ante, p. 217; see also The Herman Ludwig, Y. A. D. 211.

(t) The Henrich Bjorn, 10 P. D. 44, 60.

(u) The Challenger, 14 Q. L. R. 135.

coppering, The Thurlani, 32 L. T. N. S. 841; money paid for the insurance of freight, The Riga, L. R. 3 Ad. 516, 41 L. J. Ad. 39; dock dues, The St. Lawrence, 5 P. D. 250, 49 L. J. Ad. 82; necessaries include money advanced for their purchase, The Sophie, ubi supr., The Anna, 45 L. J. Ad. 98.

A claim for brokerage on a charter party obtained for a foreign ship is not a claim for necessaries supplied to a foreign ship (v).

The insurance of a ship is not a "necessary "(w).

The extent of the jurisdiction of the High Court in Admiralty and the rights of material men have recently been defined in certain cases severally appealed to the Privy Council and the House of Lords. The first of these cases was on appeal from the Vice-Admiralty Court of Gibraltar, and it was held that no maritime lien attached to a ship in respect of coals or other necessaries supplied to it, and that Vice-Admiralty Courts had not (apart from statute) more than the ordinary Admiralty jurisdiction, i. e. as it existed before 3 & 4 V. c. 65 enlarged it. The ViceAdmiralty Act, 1863, s. 10, ss. 10, did not create a maritime lien with respect to necessaries supplied within the possession (x).

In 1886 the House of Lords considered the same subject, upon appeal from the Court of Appeal, in an action for necessaries the nature of which appears in a contract set out in the report of the case in the Court of Appeal, whereby it appeared that the plaintiff had agreed with G. A., owner of th shares, and sole managing owner, of a foreign (Norwegian) ship then at the Port of Liverpool, to advance £600 for necessaries which G. A. agreed to repay with interest on return of the vessel; shortly after which transaction, and prior to the commencement of the action> the shares of G. A. were sold to N. A. and others who were defendants in the action. Fry, L.J., in giving the judgment of the Court of Appeal said:

(v) The Marianne 1891, P. 180.
(x) The Golden Sea, 7 P. D. 194.

(v) The Rio Tinto, 9 App. Cas. 355, 1883.

"The question in this action is whether the present owners can be affected with liability under the contract of 23rd March, 1882, and as they were not parties to that transaction, they can only be so affected if the contract in question created a charge upon the ship which they purchased." And at p. 60-61,-" In our opinion the two statutes 1840 and 1861 ought notwithstanding the observations of Mellish, L.J., in The Two Ellens, L. R. 4 P. C. 161, to be construed in pari materia, and we think that the decision of the Privy Council in that case lends confirmation to the conclusion at which we arrive, namely, that whilst the statute of 1840 has enabled the material man to enforce his claim in the Admiralty Court, and as one means has given him a right to arrest the ship, it has given him no maritime lien, and consequently no right of action against the ship until action brought” (y).

"It does not appear to us probable that the legislature, whilst giving a remedy against both foreign and· British ships, should have created a lien in the one case which it did not create in the other. To hold that the remedies are alike in the two cases is, we think, more consistent with international comity than an opposite decision would be." And it was held, (reversing the decision of Sir J. Hannen), that before the Act 3 & 4 V. c. 65, s. 6, there was no maritime lien on a foreign ship for necessaries supplied to her, that that section did not give any maritime lien, but only a right to seize the ship on the institution of an action, and therefore that the plaintiffs were not entitled to recover against the vessel (z).

When the case came before the House of Lord the only question, as stated at p. 271, raised by the appeal was whether the plaintiffs had a maritime lien for the advances, and the argument of Sir R. Webster, for the defendants brought out the following points:

Prior to the Act, (3 & 4 V. c. 65) some proceedings in rem were independent of maritime lien, e. gr., actions between co-owners, of possession and of restraint. Therefore it is (y) The Heinrich Bjorn, 10 P. D. 44, 60.

(z) The Heinrich Bjorn, Ibid.

not a correct statement of law to say that whenever there are proceedings in rem there is a maritime lien. It is clearly established that similar words in 24 V. c. 10, and other Acts do not confer a maritime lien; citing The Two Ellens (a), and The Rio Tinto (b).

And the learned counsel admitted that the decision of this case would not effect the authority of those cases decided upon questions of priorities when the Admiralty Court being seized of the proceeds of the sale of a ship exercised its equitable jurisdiction in distributing those proceeds amongst the various claimants, (p. 275).

Lord Watson, in giving judgment said, (p. 277):— "The remedy in rem is obviously an appropriate one in the case of a plaintiff who has a right of property or other real interest in the ship, or a claim of debt secured by a lien which the law recognizes. We have been informed that under the recent practice of the Admiralty Court the remedy is also given to creditors of the ship owner for maritime debts which are not secured by lien; and in that case the attachment of the ship, by process of the court, has the effect of giving the creditor a legal nexus over the proprietory interest of his debtor, as from the date of the attachment."

The judgment of their lordships as stated in the headnote of the report was that :—

"The Statute 3 and 4 V. c. 65, s. 6, does not give a maritime lien in respect of necessaries supplied to a foreign ship in an English port. The plaintiffs advanced to the part-owner of a foreign (Norwegian), ship then at Liverpool, money for necessaries for the ship. The part-owner having sold his interest in the ship to the defendants, the plaintiffs brought an action in rem for the amount of the advances; and it was held by the House of Lords affirming the decision of the Court of Appeal (10 P. D., 44 reported there as the Heinrich Bjorn), that the action could. not be maintained" (c).

(a) L. R. 4 P. C. 161.

(b) 9 App. Cas. 356.

(c) Northcote v. Owners of the Henrich Bjorn. The Henrich Bjorn, 11 App. Cas. 270.