owner do not agree as to the inception of the promissory note sent by Mr. Schofield to the plaintiff. The plaintiff says: "I wrote to Mr. Schofield for my account and received a letter to send my account and he would pay it. I did so, and in reply I received this note." Mr. Schofield says he is unable to produce plaintiff's letter to him, but that in it plaintiff requested him (Mr. S.) to send him his note for $800, payable with interest, for his wages in The Plover. Now it must be remembered that Mr. Schofield was the managing owner of The Plover, and that all instructions came from him, and all correspondence was held between him and the plaintiff. The plaintiff joined The Plover in September, 1883, and early in 1884 commenced writing Mr. Schofield for a statement of his account. In May, 1884, Mr. Schofield wrote the plaintiff that he would allow him interest on any balance due. Up to July 1, 1885, no statement of account had been sent by Mr. Schofield to the plaintiff, when plaintiff says he applied for his account and payment, so that, so far as this part of the evidence goes, up to the time the note was sent, no arrangement or agreement had taken place between them for the acceptance by plaintiff of Mr. Schofield's note in payment and satisfaction of his right then existing against the vessel. Was this of itself anything more than an acknowledgment of the indebtedness with interest to be added? Mr. Schofield had himself proposed, as we have seen, as early as May, 1884, to allow interest. This was made not in compensation for the waiver by plaintiff of his lien against the ship, but doubtless to satisfy plaintiff, who was calling for statements of his account. If, then, the sending and receipt of Mr. Schofield's note did not in law or in fact amount to an abandonment of plaintiff's lien, what subsequent arrangement was made to deprive him of his right? On consideration I can find none. It nowhere appears that plaintiff, in writing to Mr. Schofield, dealt with or treated him as other than the representative of the vessel. Plaintiff's reply, at the time these proceedings were threatened, to Mr. Schofield's remark, "You know you have no claim against the owners or vessel for that $800," to which he said, 1887 THE PLOVER. 1887 THE "I know that, I took you for that," cannot, I think, unsupported by any prior agreement or arrangement to that purPLOVER. pose with Mr. Schofield, have the effect now contended for. I therefore find the amount of the master's wages and disbursements to be $2,057.46, from which I deduct $6 for railway ticket given the master's wife, and $526.66, amount allowed for board of wife and child during the time they were on board the ship, being $10 per month for the two, leaving a balance of $1,724.80 due the plaintiff, for which I pronounce, and with costs. Decree accordingly. For cases as to forfeiture of wages, see note to The Mistletoe, ante, p. 127. ENGLISH CASES. A maritime lien is a right to enforce by action in the Admiralty Court a claim against the res. It exists in the case of bottomry, The Royal Arch, Swa. 269; The Druid, 1 W. Rob, p. 399; claims for salvage, The Gustaf, Lush. 506; damage by collision, The Bold Buccleugh, 7 Moo. P. C. 267, s. c. 22 Eng. L. & Eq. p. 69; The Charles Amelia, L. R. 2 A. & E. 330; for wages of seamen and master, The Neptune, 1 Hag. at p. 238; 52 & 53 Vict., c. 46, sec. 1; The Castlegate (1893), A. C. 38. Material men or those who have supplied necessaries have no maritime lien on the ship. The Heinrich Bjorn, 11 App. Cas. 270; but by 3 & 4 Vict., c. 65, sec. 6, they can proceed in rem against the ship. For the distinction between a maritime lien and the right of material men to proceed in rem against the vessel see the last cited case as reported in 10 P. D. at p. 54. In The Mellona, 3 W. Rob., p. 21, it is laid down, "The position of a creditor who has a proper maritime lien differs from that of a creditor in an unsecured claim in this respect, that the former, unless he has forfeited the right by his own laches, can proceed against the ship notwithstanding any change in her ownership, whereas the latter cannot have an action in rem unless at the time of the institution the res is the property of his debtor." In The Bold Buccleugh, supra, it is said "by the civil law a maritime lien does not include or require possession, but being the foundation of proceedings in rem (a process requisite only to perfect a right inchoate from the moment the lien attaches), such lien travels with the thing into whosesoever possession it may come, and when carried into effect by a proceeding in rem, relates back to the period when it first attached; the steamer was liable for the damages committed by her, though in the hands of a purchaser without notice of the damage, or the proceedings instituted against her. It seems such lien arising out of damage is not indelible, but may be lost by negligence or delay, where the rights of third parties are compromised." At common law what is called a "lien" is more strictly construed, and only exists when the thing is in actual or constructive possession. Taking a bill of exchange or promissory note in satisfaction will in general determine a lien so where a vendor takes a note and negotiates it. Horncastle v. Farran, 3 B. & Ald. 497; but a vendor does not lose his lien on his estate sold, by taking a note and receiving its amount by discount, ex p. Loaring, 2 Rose, 79. Taking a note for rent does not preclude right to distrain even before the note falls due. Davis v. Gyde, 2 Ad. & E. 623. Solicitors lose their lien by taking security from their clients. Bissill v. Bradford and District Tramways Co. (1893), W.N. 44. Where a seaman, who has been tendered his wages in full, prefers a bill of exchange on the owners for his own accommodation, loses his lien on the ship and his right to sue in the 1887 THE Admiralty upon the insolvency of the owners, and non-payment of the bill. The William Money, PLOVER. 2 Hag. 136. But when a master took a bill of exchange for wages and disbursements, the bill being dishonored, he is permitted to proceed against the vessel. The Simla, 15 Jur. 865; Strong v. Hart, 6 B. & C. 160. A master who, after receiving a portion of his wages from the managing owners, elects to allow the balance to remain in their hands at interest, by so doing loses his lien, and cannot recover the balance in rem, but if he has had no opportunity of receiving his wages, or has been refused payment of them on demand, the mere fact of his allowing them to remain in the managing owners' hands after they become due will not deprive him of his remedy. The Rainbow, 53 L. T. N. S. 91. Where shipowners, in answer to a claim for wages, plead an agreement between the managing owners and the plaintiff that the plaintiff shall, instead of receiving his wages, allow it to remain in the hands of the managing owners, and has thereby foregone his right against the ship, the onus is upon the defendants to clearly prove that there was an express arrangement to that effect before the Court will deprive the plaintiff of his right. Under the provisions of sec. 187 of the Merchant Shipping Act, 1854, and sec. 4 of the Seaman's Act, 1880, 1887 THE as to the non-payment of wages, the right to recover ten days' PLOVER. double pay and wages to the time of final settlement, is not enforceable where there is a bona fide question as to liability. The Rainbow, 53 L. T. N. S. 91. It has been decided in The Arina, 12 P. D. 118, that a master is not entitled to double pay for delay in paying his wages. The master is not deprived of his lien for wages and disbursements by the fact that he has taken a mortgage on the ship for the balance of his wages and disbursements, more especially if the shipowner has concealed from him the fact that there was a prior mortgage. The Albion, 27 L.T. N. S. 723. A master being compelled by pressing necessity of ill-health to leave his ship abroad, is entitled to sue at once for his wages. The Rajah of Cochin, Swa. 473; a release by the master of his personal claim against the shipowner for wages does not operate as a release of the vessel from his lien for wages. The Chieftain, Br. & Lush. 212. AMERICAN CASES. The American authorities adopt the same view as the English Court of Admiralty. In the case of The Eastern Star, 1 Ware 184 (1830), it was held that the seaman does not lose his lien on the vessel for his wages by taking an order on the owner or charterers for the balance due at the end of the voyage. Ware, J., says: "In this case there was no offer of money, but when the men called on the master for their pay he drew an order on the owner. Even if he had made the draft payable to order I should have hesitated long before holding it to be a discharge of the wages. They were merely memos showing to the merchant the balance of money due, and the receiving of the order was no waiver of any rights against the vessel." A release under seal by a mariner on payment of his wages is only prima facie evidence of settlement, and may be rebutted by other evidence. The David Pratt, 1 Ware, 495 (1839). By the common law a simple contract debt is not extinguished by the creditor taking a new security unless it be of a higher nature as an instrument under seal, or unless it be agreed to be received in satisfaction of the debt. Betsy and Rhoda, 2 Ware, 117 (1840). But by the local law of the State of Maine this is changed, and yet the presumption of the local law will not be enforced by the Admiralty against a seaman who receives of the owners their negotiable note for his wages, ibid. A seaman taking the promissory note of the master, not negotiable, and giving a receipt for his wages and putting the note in suit, is not thereby precluded from proceeding against the vessel for his wages. The Harriett, The 1 Sprague, 33 (1842). The defence was that the mariner by taking the note and putting it in suit loses his lien on the vessel. Sprague, J., held that the note was not payment. It was not a promissory note in the sense of the law, and was not prima facie evidence of payment. The master received no value for his release. The master, before the transaction, was liable for the wages, and until satisfaction and payment, the mariner might pursue any or all of his remedies at the same time. The acceptance of a promissory note for supplies furnished will not be presumed to be a waiver of the lien upon the vessel therefor, unless so agreed at the time. The Eclipse, 3 Bissill, 99 (1871). In Carter v. Townsend, 1 Clifford, 1, it was held that a lien for repairs and supplies furnished at Norfolk, Virginia, on a ship owned in Maine, is not lost by the creditor taking bills of exchange on one of the owners, which bills were produced to be surrendered or cancelled. It seems to be well settled that the party claiming a maritime lien must either return or offer to return the note or other security accepted by him, or bring it into Court and surrender it to be cancelled. Taking a note and giving time will not necessarily release the maritime lien resulting from supplies furnished a vessel. One who is manager or part owner of a vessel should not be allowed a lien upon her to the prejudice of outside lien holders. It is well settled that advances and supplies made to a vessel in a home port are presumed to be made on the credit of the owners, and no maritime lien results. The Queen of St. Johns, 31 Fed. Rep., 24. The mere giving of a promissory note by the debtor for supplies furnished a ship is no satisfaction of the debt, nor is accepting it a waiver of the lien the creditors may have had therefor. The Active, Olcott, 286. To the same effect see The Kimball, 3 Wall. 37. The Supreme Court of the United States, by Field, J., in The Emily Souder, 17 Wall. at p. 670 (1873), laid down the rule that "by the general commercial law of the world, a promise to pay, whether in the form of notes or bills, is not of itself the equivalent of payment: it is treated everywhere, in the absence of express agreement or local usage to the contrary, as conditional payment only. On principle,. nothing can be payment in fact except what is in truth such, unless specially agreed to be taken as its equivalent." Parties, however, must not sleep upon their rights, and therefore it has been held that a lien for supplies to a foreign ship, must, as against a bona fide purchaser, be enforced with due diligence. Generally it must be soon after the termination of the first voyage. An assignment of his 1887 THE PLOVER. |