Pt. II. 167.

IV. Bottomry bondholder and cargo owner.-A master having given a bottomry bond binding himself, ship and freight, cannot claim wages in priority to the bondholder. The William (1858), Swa. 346 (master being sole owner); The Jonathan Goodhue, supra. But this rule is only for the protection of the bond. holler, and will not be acted upon where he would not be prejudiced by the master being paid before him; and a cargo owner has no equity to enforce the rule even when the master is a part owner. The Edward Oliver (1867), 36 L. J. Adm. 13; L. R. 1 A. & E. 379; The Daring (1868), 37 L. J. Adm. 29; L. R. 2 A. & E. 260; The Eugénie (1873), L. R. 4 A. & E. 123. If, however, the master has not bound himself personally to pay the bond, then the general rule as to maritime liens in the nature of awards for services rendered applies. Hence his claim in respect of the voyage during which the bond was given or a subsequent voyage takes precedence of the bond, while his claim in respect of a prior voyage is deferred to it. The Salacia, supra; The Hope (1873), 1 Asp.

M. L. C. 563.

The master and crew of a foreign ship arrested in this country are entitled to priority over a bottomry bondholder in respect of their "viaticum" home. The Constancia (1866), 15 W. R. 183.

V. Mortgagee.-The master's lien takes precedence of a claim of a mortgagee of ship or shares. The Mary Ann, supra (p. 89); The Feronia (1868), 37 L. J. Adm. 60; L. R. 2 A. & E. 65; The Hope, supra. And such precedence is not affected by the master being also a part owner: The Feronia, supra; The Joseph Dexter (1869), 20 L. T. 820-provided he is not a mortgagor. The Jenny Lind (1872), 41 L. J. Adm. 63; L. R. 3 A. & E. 529.

As to the position of a master who is also a mortgagee, see The Repulse (1845), 2 W. Rob. 398.

As to the effect of delay in enforcing lien during which a mortgagee becomes interested without notice, see The Chieftain (1863), B. & L. 212.

VI. Purchaser.-The master can enforce his lien although the ship is in the hands of purchasers. The Bengal (1859), Swa. 468; The Fairport (1882), 52 L. J. Adm. 21; 8 P. D. 48.

VII. Shipwright, material-man, &c.-The possessory lien of a shipwright or material-man takes precedence of the master's lien for wages earned after the shipwright's work was done or the materials supplied, but not generally over that for wages previously earned. See The Panthea, supra; The Gustaf (1862), 31 L. J. Ad. 207; Lush. 506; The Immacolata Concezione (1883), 53 L. J. P. 19 ; 9 P. D. 37. As to a foreign master's right to "viaticum" home as against shipwright, see case last cited, followed in The Tagus, supra.

Where the master, being also part-owner, ordered necessaries, he was held liable for the price, both as the master giving the order and as owner, and his claim for wages was deferred to that of the material-men. The Jenny Lind, supra. But where he was not a part-owner, his claim appears to have been preferred in The Lepanto, cited in Kay on Shipmasters, &c., 2nd ed. p. 44.

As to priority of a claim for costs by solicitors employed by the master, see The Heinrich (1872), 41 L. J. Adm. 68; L. R. 3 A. & E 505.

VIII. Trustee in Bankruptcy.—See Re T. C. (1877) (Ir.), Ir. Rep. 11 Eq. 151. Loss of lien.-The master's lien is lost by his electing to take a bill on the owners for his wages instead of cash. The William Money (1827), 2 Hagg. 136. But not by his taking a mortgage for balance due. The Albion (1872), 27 L. T. 723; 1 Asp. M. L. C. 481 (in Vice-Adm. Court); The Tagus, supra.

As to the effect of his allowing wages to remain at interest in the managing owner's hands, see The Rainbow (1885), 53 L. T. 91; 5 Asp. M. L. C. 479.

A release of his personal claim against the owner does not release the ship from his lien. The Chieftain, supra.

(c) "Wages" included "emoluments": see s. 742; and includes a bonus agreed to be paid on special conditions in addition to the agreed wages. The Elmville (No. 2), 73 L. J. P. 120; (1904) P. 422.

(d) As to the seaman's lien: see note (b) to s. 156. seaman has a lien on the freight, as well as upon this lien extends to freight due from sub-charterers. l'. D. 1; 56 L. T. 171.

By the law maritime, a the ship, for wages, and The Andalina (1886), 12

Remedies for the recovery of wages."-This provision does not entitle a master to double pay under s. 135 for delay in payment of wages, nor to wages up to time of final settlement under s. 134. The Arina, cited in note (e) to s. 134.

A master cannot as a rule sue for wages until he is discharged or the service is terminated. The Hemisphere Borealis, 5 Ir. Jur. (N. S.) 180. But if compelled by ill-health to leave the ship abroad he may sue at once. The Rajah of Cochin (1859), Swa. 473.

It seems that by virtue of this sub-section a master, like a seaman, must, under 4 Anne, c. 16, s. 17, bring a suit for wages in the Admiralty Court within six years. The Chieftain, supra (note (b), V.).

As to limitation of time in summary proceedings, see s. 683.

In proceedings for the recovery of his wages he may, in certain cases of unreasonable delay, be awarded damages in respect of such delay. M. S. A. 1906, s. 57.

The

(e) The term "liabilities" did not occur in s. 10 of the Act of 1861 abovementioned (p. 89), but "disbursements" was held to include liabilities. Fairport, supra; The Feronia, supra; The Sara, supra.

"Properly made, &c., on account of the ship." He has no lien for disbursements for which he had no authority to pledge the shipowner's credit, e.g., for coals where the charterer is bound by charter-party to provide them. The Castlegate, supra (p. 89); see also The Beeswing (1885), 53 L. T. 554; The Turgot (1886), 11 P. D. 21; The Durham City (1889), 58 L. J. P. 46; 14 P. D. 85.

The

Moreover, the lien exists in respect of those disbursements only, in the case of which it was supposed to have been created by the Admiralty Court Act, 1851, that is, those made in the ordinary course of his employment as master, for which he could have pledged the owner's credit without express authority. Orienta, 61 L. J. Adm. 82; [1895] P. 49. Hence no lien to the prejudice of mortgagees is created in respect of a master's liability on a bill drawn by him upon his owners for coal ordered by them at a home port. Ibid.

The master can recover the expenses of defending himself against a false charge of murder, maliciously brought against him by some of the crew, where the charge originated in the performance of his duty in censuring them for misconduct. The James Seddon (1866), 35 L. J. Adm. 117; L. R. 1 A. & E. 62. But not the amount of a bond given for damages caused by his own default. The Limerick (1876), 1 P. D. 292, 411.

He can recover the costs incurred by him in unsuccessfully defending an action on a dishonoured bill of exchange drawn by him on his owners for coals supplied to the ship, if such defence was reasonably necessary in the interests of the ship. The Elmville (No. 2), 74 L. J. P. 69; [1904] P. 422; see also The Ripon City, 66 L. J. Adm. 110; [1897] P. 226, and Ceylon Co. v. Golrich, 73 L. J. P. 104; [1904] P. 319.

He can also recover disbursements made to privileged claimants, and is in such case entitled to stand in their shoes and have the benefit of any right they might have against the res; so if he has paid the wages of the crew he has a lien for the amount paid with same priority as they would have had. Tagus, 72 L. J. P. 4; [1903] P. 44.

The

His lien is not affected by the fact that he was engaged by a person fraudulently in possession of the ship, provided he was not privy to the fraud. See The Edwin (1834), 33 L. J. Adm. 197; B. & L. 231.

Gratuity to master.-The master in a wages action is not bound to account for gratuities lawfully given to him. The Parkdale, 66 L. J. Ad. 10; [1897] P. 53. See also the Prevention of Corruption Act, 1906.

(f) Application to colonies.-In The Rajah of Cochin, supra, s. 191 of M. S. A. 1854, was held to apply to the colonies, and to give the master a lien for wages in the Vice-Admiralty Court (now "Colonial Court of Admiralty,' see s. 735), subject only to the provisions of 1854, s. 547 (1894, s. 735). The words of the repealed section were "in any Court of Admiralty or Vice Admiralty," but the decision did not rest entirely on these words. See ss. 261, 735.

(g) The object of this enactment is to enable the court to do justice where a counterclaim with reference to the ship or her disbursements is set up by the owners: see per Dr. Lushington, The D. Jex (1865), 13 L. T. 22; 2 M. L. C. (O. S) 263; or by persons claiming under them: The Daring, supra (note (b), IV.); The Glentanner (1859), Swa. 415; The Caledonia (1855), Swa. 17. Hence the court will not entertain a counterclaim by a cargo owner against the master as part-owner of the ship. The Daring, supra.

And a master was held (before the Judicature Acts) not entitled under this provision to add a claim in respect of his equitable share and interest in the ship. The D. Jex, supra.

Pt. II.

167.

Pt. II. 168-169.

Power of court to rescind contract betweea

Owner or

master and

seaman or

apprentice.

[43 & 44 Vict.

c. 16, s. 8.]

Property of

seamen who die during voyage.

[1851, s. 194.]

But where the master was a part-owner, the defendants, his co-owners, were allowed to plead matters of account between them and the plaintiff as master and co-owner. The City of Mobile (1873), 43 L. J. Adm. 41; L. R. 4

A. & E. 191.

A mortgagee, intervening and setting up a counterclaim, must submit to a settlement of all accounts between the master and the ship, exclusive of any private account between the master and the owners in respect of merely extraneous matters. The Glentanner, supra.

Damages. The Court is now empowered by M. S. A. 1906, s. 57, to award damages, in addition to the wages, in cases of unreasonable delay in paying a master's wages.

Power of Courts to rescind Contracts.

168. Where a proceeding is instituted in or before any court in relation to any dispute between an owner or master of a ship and a seaman or apprentice to the sea service, arising out of or incidental to their relation as such, or is instituted for the purpose of this section, the court, if, having regard to all the circumstances of the case they think it just to do so, may rescind any contract between the owner or master and the seaman or apprentice, or any contract of apprenticeship, upon such terms as the court may think just, and this power shall be in addition to any other jurisdiction which the court can exercise independently of this section.

As to the jurisdiction apart from statute to set aside inequitable agreements as to salvage, see note (c) to s. 156.

Property of deceased Seamen.

The provisions of this part of the Act relating to the property of deceased seamen and apprentices extend to ships registered in the United Kingdom, the voyages of which are to terminate out of the United Kingdom: see M. S. A. 1906, s. 29.

169.-(1.) If any seaman or apprentice to the sea service belonging to a British ship the voyage of which is to terminate in the United Kingdom, whether a foreign-going or a home trade ship, dies during that voyage, the master of the ship shall take charge of any money or effects belonging to the seaman or apprentice which are on board the ship.

(2.) The master may, if he think fit, cause any of the effects to be sold by auction at the mast or otherwise by public auction. (3.) The master shall enter in the official log book (a) the following particulars :

(a) a statement of the amount of the money and a description

of the effects:

(b) in case of a sale, a description of each article sold, and the sum received for each:

(c) a statement of the sum due to the deceased for

wages () and of the amount of deductions (if any) to be made from the wages.

(4.) The entry shall be signed by the master and attested by a mate and some other member of the crew (c).

(5.) The said money, effects, proceeds of sale of effects, and balance of wages, are in this Act referred to as the property of the seaman or apprentice (c).

(a) Sub-s. (3) (b), (c) are in substance repeated in s. 240 (10), (9), respectively. As to official log books, see ss. 239-243; as to admissibility in evidence of entries therein, s. 239, sub-s. (6); and as to proof of documents without calling attesting witnesses, s. 694.

(6) Further as to the wages of a seaman dying in the course of the voyage, see Beale v. Thompson (1803), 3 B. & P. 405, 427; Cutter v. Powell (1795), 6 T. R. 320, 324; and Button v. Thompson (1869), 38 L. J. C. P. 225; L. R. 4 C. P. 330. As to what are included in "wages" and "effects," see s. 742.

(c) This provision is repeated in s. 239, sub-s. (5).

Pt. II.

170.

seamen who

170.-(1.) Where a seaman or apprentice dies as afore- Dealing with said and the ship before coming to a port in the United and account Kingdom touches and remains for forty-eight hours at some of property of port elsewhere, the master shall report the case to the British die during consular officer at such port, or if the port is in a British posses- voyage. sion, to the officer of customs there, and shall give to the officer [1854, s. 195.] any information he requires as to the destination of the ship and probable length of the voyage.

(2.) That officer may, if he thinks it expedient, require the property to be delivered and paid to him, and shall thereupon give to the master a receipt thereof (a), and endorse under his hand upon the agreement with the crew such particulars with respect thereto as the Board of Trade require.

(3.) The receipt shall be produced by the master to a superintendent within forty-eight hours after his arrival at his port of destination in the United Kingdom.

(4.) Where a seaman or apprentice dies as aforesaid and the ship proceeds at once to a port in the United Kingdom without touching and remaining as aforesaid at a port elsewhere, or the consular officer or officer of customs does not require the delivery and payment of the property as aforesaid, the master shall, within forty-eight hours after his arrival at his port of destination in the United Kingdom, deliver and pay the property to the superintendent at that port.

(5.) In all cases where a seaman or apprentice dies during the progress of a voyage or engagement, the master shall give to the Board of Trade, or to the superintendent or officer to whom delivery and payment is made as aforesaid, such account in such form as they respectively require of the property of the deceased.

(6.) A deduction claimed by the master in such account shall not be allowed unless verified, if an official log book is required to be kept, by an entry in that book made and attested as required by this Act (b), and also by such other vouchers (if any) as may reasonably be required by the Board of Trade or by the superintendent or officer to whom the account is given.

(7.) A superintendent in the United Kingdom shall grant to a master, upon due compliance with such provisions of this

Pt. II.

171-172. section as relate to acts to be done at the port of destination, a certificate to that effect; and an officer of customs shall not clear inwards a foreign-going ship without the production of that certificate.

Penalty for non-compliance with provisions as to property of deceased

seamen.

[1854, s. 196.]

Froperty of

deceased scamen left abroad but

As to the application of this section to British ships on voyages which terminate abroad, see M. S. A. 1906, s. 29.

(a) This receipt would appear not to be exempted from stamp duty by s. 721, though the Board of Trade may, under s. 720, sanction a form for it.

(b) See s. 169 and note (a) thereto as to official log books. As to deductions, sce s. 133, and M. S. A. 1906, s. 59.

171.—(1.) If the master of the ship fails to comply with the provisions of this Act (a) with respect to taking charge of the property of a deceased seaman or apprentice, or to making in the official log-book the proper entries relating thereto, or to procuring the proper attestation of those entries as required by this Act, or to the payment or delivery of the property, he shall be accountable for the property to the Board of Trade, and shall pay and deliver the same accordingly, and shall in addition for each offence be liable to a fine not exceeding treble the value of the property not accounted for, or if such value is not ascertained not exceeding fifty pounds.

(2.) If any such property is not duly paid, delivered, or accounted for by the master, the owner of the ship shall pay, deliver, and account for the same, and such property shall be recoverable from him accordingly, and if he fails to account for and deliver or pay the same, he shall in addition to his liability for the same be liable to a fine not exceeding treble the value of the property not accounted for, delivered, or paid over, or, if such value be not ascertained, not exceeding fifty pounds (b).

(3.) The property may be recovered in the same court and manner in which the wages of seamen may be recovered under this Act (c).

As to the application of this section to British ships on voyages which terminate abroad, see M. S. A. 1906, s. 29.

(a) For these provisions, see ss. 169, 239, 240.

() Ss. 169-171 do not apply to the case of a seaman dying on or after the wreck of a ship-and in such a case the owner is not accountable under this section. Stephens v. Duncan (1862) (Sc.), 1 Crt. of Sess. Cas. (3rd Ser.) 146. (c) See ss. 164 et seq., as to mode of recovery of wages.

172. If any seaman or apprentice to the sea service belonging to a British ship the voyage of which is to terminate in the United Kingdom, or who has within six months preceding his death belonged to any such ship, dies at any place out of the United Kingdom (a), leaving any money or effects not on board [1854, s. 197; the ship to which he belonged at the time of his death or to 1862, s. 20.] which he last belonged before his death, the chief officer of

1 ot on board ship.