earned on any prior voyages. () Pilotage dues appear to rest on Pilotage. the same footing as wages.()

wages

and

The claim of a master for his wages and disbursements differs Master's in no respect as regards its ranking against a bottomry bond, disbursements. from that of seaman, (m) unless, as is usually the case, the master has bound himself personally to pay the bond.

In the latter case it would be manifestly wrong that, in defeasance of his own contract, he should not only not pay the bond himself, but obtain out of the proceeds of the ship and freight payment of his own claims against the owners, leaving the bottomry bondholder unpaid. Hence it is a general rule, that the holder of a bond, upon which the master has made himself personally liable, is paid out of the proceeds of ship and freight before the master.(n)

shalled in

But this rule is not extended to cases where the bottomry bond- Assets marholder would not be prejudiced by the master being paid before master's him. Therefore, where a master gave bonds on ship, freight, and favour. cargo, binding himself, and the bonds, if paid first, would exhaust ship and freight and so defeat the master's claim; while, if the master's claim were first paid, the cargo would afford ample security to the bondholder; it was held that the master's claim should have priority over the claims of the bondholders.(0) And the owners of cargo cannot in such a case oppose the claim of the master, even if he is also a part owner, to be paid his wages and disbursements in priority to the bondholder; nor will the Court entertain a counterclaim by the cargo-owner against the master.(p)

§ 462. The lien for salvage services rendered subsequently to Salvage. the giving of the bond, is preferred to that of the bondholder,(9) though it is otherwise with prior salvage.(†) And where after a respondentia bond had been given, the goods were reshipped, freight was earned, and general average expenses were incurred, without notice of the bond, but necessarily, as well in the interests of the bondholder as of the cargo-owner, the possessory lien of the master of the substituted ship for freight and general average

(k) The Hope, 28 L. T. 287; The Mary Ann, 9 Jur. 94, 95. The question whether wages were earned on one round voyage or a series of voyages is, as between bondholder and seamen, governed by the articles. The Sylvia Sonto, Cor. Sir F. Jeune, Adm. Div., June 19, 1893.

(1) The Constancia, 4 N. of C. 512; The St. Lawrence, 5 P. D. 250.

(m) The Hope, 28 L. T. 287; see, as to his wages, 17 & 18 Vict. c. 104, s. 191; as to his disbursements, 52 & 53 Vict. c. 46, s. 1; § 69 et seq., supra.

(n) Per Dr. Lushington, The Edward

Oliver, L. R. 1 Ad. 379, 383; The Jona-
than Goodhue, Sw. 524; The William,
ib. 346; The Sylvia Sonto, cited, note (k)

sup.

(0) The Edward Oliver, L. R. 1 Ad.
379. And even if the owner of the cargo
purchases the bonds, that does not affect
the rights of the master, or put the owner
of the cargo in a better position: The
Eugenie, L. R. 4 Ad. 123.

(p) The Daring, L. R. 2 Ad. 260.
(g) The Cargo ex Galam, B. & L. 167,
181; cp. The Cargo ex Sultan, Sw. 504.
(r) The Selina, 2 N. of C. 18.

Claims which confer no maritime

lien.

Bondholder must enforce

his claim with diligence.

By the law of

expenses, was preferred to the maritime lien of the bondholder, on the ground that the services rendered were in the nature of salvage services.(s)

The claim of a bottomry bondholder will take precedence during the voyage for which the bond was given of claims for such services as towage, and the supply of necessaries, which confer no maritime lien; (t) and will, as it seems, be preferred to that of a shipwright with a possessory lien on the ship, if he received her into his yard after the bondholder's claim was complete and due.(u) If, however, his services were necessary to the realisation of the bondholder's security, they would perhaps fall within the principles of The Cargo ex Galam,(x) as being in the nature of salvage services.

§ 463. But it must be remembered that the priority of a bondholder over other creditors only exists in ordinary cases during the voyage for which the bond was executed, and for a reasonable time after the arrival of the ship at her port of destination. A holder should therefore enforce his rights under the bond within a reasonable time after the ship has arrived at her port of destination, or he may lose his precedence over other creditors, or purchasers without notice of his claim. For the law discountenances the undue continuance of secret liens.(y) If he agrees that the payment shall be postponed until the completion of another voyage, his security under the bond and his right of proceeding in the Court of Admiralty cease, and the rights of the parties are then of a mere personal nature. (y)

§ 464. The rights of the parties to a contract are to be judged what country of by the law of that country by which they intended that the transaction should be governed, or, rather, to which they may justly be presumed to have submitted themselves.

the contract is governed.

In ordinary cases, the law of the place where the contract is made is, prima facie, that which the parties intended, or ought to be presumed to have adopted as the footing upon which they dealt, and such law ought therefore to prevail in the absence of circumstances indicating a different intention, as, for instance, that the contract is to be entirely performed elsewhere, or that the subject-matter is immovable property situated in another country, and so forth.(*)

Where parties enter into a contract in one country to be performed in another country, the general rule is that such contract

(8) The Cargo ex Galam, ubi sup.
(t) See as to towage, Westrup v. Great
Yarmouth, &c., Co., 43 Ch. D. 241; as to
necessaries, The Heinrich Bjorn, 10 P.
D. 44; 11 Ap. Ca. 270.

(u) See The Gustaf, Lush. 506.
(x) B. & L. 167.

(y) The Royal Arch, Swab. 269, 285; The Rebecca, 5 C. Rob. 102; cp. The Sydney Cove, 2 Dods. 1, 10; and disting. The Hero, 2 Dods. 139, 143, where, however, no third party was affected.

(*) See per Willes, J., Lloyd v. Guibert, L. R. 1 Q. B., pp. 120, 122.

will, as to its validity, nature, obligation, and interpretation, be governed by the law of the place of performance.(a)

flag.

Upon this principle "he who ships goods upon a foreign ship Law of the ships them to be dealt with by the master of that ship, according to the law of the country of that ship, unless there is a stipulation to the contrary."(b) In other words, where the contract of carriage does not provide otherwise, the law of the country to which the ship belongs must be taken as that to which the parties have submitted themselves. Accordingly, the validity of a bond hypothecating cargo must be determined, in the absence of some special stipulation in the contract of carriage, by the law of the flag.(c) But in the absence of evidence that the law of the flag differs from the law of England, the law of England will be followed by the courts of this country. They will also follow their own rules on all questions of evidence and procedure. (d)

"As far as regards the implied authority of the master of a ship to bind his owners personally," says Blackburn, J., “the flag of the ship is notice to all the world that the master's authority is such as is conferred by the law of that flag; and that his authority from his owner is contained in the law of that country, with which those who deal with him must make themselves acquainted at their peril."(e)

(a) Story, Conflict of Laws, 280; per Lord Mansfield, C.J., Robinson v. Bland, 2 Burr. 1078; Burgess v. Richardson, 29 Beav. 487, 494; Tudor, Merc. Cas. 3rd ed. 643.

(b) Per Brett, L.J., The Gaetano and Maria, 7 P. D. at p. 146.

(c) The Gaetano and Maria, 7 P. D. 137, not following The Hamburg, B. & L. 253; Lloyd v. Guibert, 6 B. & S. 100, 120; L. R. 1Q. B. 115; The Karnak, L.

In general.

§ 465. SEAMEN (a) are so liable, from their mode of life, their want of experience, and their insufficient education, to become the victims of ignorance and simplicity, that the law takes them under its especial protection, and the Court of Admiralty always sought to protect them against circumvention, oppression and injustice, and even against misapprehension and error, (b) and was anxious that they should not be harassed with litigation, and that questions of wages should be speedily settled. (c) In a suit

for wages, the Court presumes service and good conduct, until they are disproved. (d)

Officers were the objects of as much attention from the Court as common mariners, inasmuch as any injury done to their character is attended with consequences of a more serious nature. The latter if distressed in one service, may easily obtain another. But if an officer is discharged for inefficiency, he is in danger of losing, not only his present character and position, but also his prospects of promotion.(e)

For the law For the law men as regards seaworthiness shipowner when of ship.

The rights of seamen are now defined and enforced by express enactments, the more important of which are set out hereafter; but irrespective of statute, the obedience and skill of the seamen entitle them to remuneration, protection, humane and just treatment, proper food if it is procurable, and care in the event of sickness.(ƒ) § 466. In one most serious respect, however, the English law Rights of sealong afforded to the seaman no adequate protection. created no implied warranty on the part of a contracting with a seaman to serve on board his ship, that she should be in a fit state to perform her voyage, and in the absence of an express warranty to that effect, the seaman could maintain no action for injury resulting to him from unseaworthiness, unless he could establish knowledge of the defect, or personal blame on the part of the shipowner.(g)

But, although even now there is no implied warranty by the shipowner in his contract with the seamen that the ship is in fact seaworthy, an obligation is implied in every contract of sea service, that the owner and his agents shall use all reasonable means to insure the continued seaworthiness of the ship.(h) Provision has also been made for the survey of ships alleged to be unseaworthy, for the prevention of overloading, and for the detention in certain cases of ships believed to be unsafe, by the officers of the Board of Trade.(i)

§ 467. Seamen also suffer from a serious disability, as compared with workmen employed on shore, in that they are excluded from the advantages of the "Employers' Liability Act, 1880."(k) It follows that, inasmuch as "the common law of England is, that where fellow-servants are engaged in a common employment, whether one is . . . . bound to obey the other or not, the master is not liable for injury occasioned to the one through

(d) The Malta, 2 Hag. 158, 166. (e) Per Lord Stowell, The Exeter, 2 C. Rob. 261.

(f) Limland v. Stephens, 3 Esp. 269; The Castilia, 1 Hagg. 59.

(g) Couch v. Steel, 3 E. & B. 402; and see Gordon v. Pyper, 94 L. T. J. 79. (h) 39 & 40 Vict. c. 80, s. 5.

(i) See these enactments collected, infra, §§ 528, 529.

(k) 43 & 44 Vict. c. 42. See s. 8 of that Act, and 38 & 39 Vict. c. 90, s. 13, kept alive for this purpose by 43 & 44 Vict. c. 16, s. 11. A Bill introduced in 1893 to repeal the Act of 1880, and, inter alia, to give seamen the benefit of the substituted enactment, failed to pass into law. It seems likely, however, that the advantages of the Act will before long be extended to them.

Excluded from
Employers'

Liability Act.