1887 THE claim by the creditor is not a waiver of the lien. The General PLOVER. Jackson, 1 Sprague, 554 (1854). While Courts of Admiralty are not governed by any statute of limitations, they adopt the principle that laches or delay in the judicial enforcement of maritime liens will, under proper circumstances, constitute a valid defence. No arbitrary or fixed period of time has been or will be established as an inflexible rule; but the delay which will defeat such a suit must, in every case, depend on the peculiar equitable circumstances of that case. When an admiralty lien is to be enforced to the detriment of a purchaser for value, without notice of the lien, the defence will be held valid under shorter, and a more rigid scrutiny of the delay than when the claimant is the party who owned the property when the lien accrued. The Key City, 14 Wall. 653 (1871). In The Bolivar, Olcott, at p. 477, Betts, J., says: "By the marine law there is no fixed period of time within which mariners must proceed to enforce their lien for wages, yet such lien will become extinct or barred by unreasonable delay, if the vessel passes into the hands of a bona fide purchaser, ignorant of such claim. A lien, which has accrued upon a vessel for supplies furnished it, is not waived or lost by the acceptance of commercial paper belonging to the lessees of the vessel. The General Meade, 20 Fed. Rep., 923 (1884). The extent of a maritime lien and the rules governing its discharge or extinguishment are to be determined by the general maritime law, and not by the local law of any State. In The Chusan, 2 Story, 455 (1843), s. c. Myer's Fed. Decisions, vol. 23, at p. 250 of latter report, it is laid down by Story, J., that "by the law of New York, or by the law of England, and, indeed, as far as I know, by the law of all the States of the Union except Massachusetts and Maine, which are governed by a somewhat modified doctrine, a note taken in payment of a debt is ordinarily but a conditional payment thereof; that is, it is an absolute payment only when duly paid. The presumption, prima facie, in New York, is that a note taken for a debt is a conditional payment only; but this presumption may be rebutted by proof that it was taken as an absolute payment." In the case of The Napoleon, 7 Bissill, 393 (1877), s. c. Myer's Fed. Decisions, vol. 23, p. 256, it is held that in the absence of an express contract of waiver, a maritime lien is not extinguished by the acceptance of a note, and that a transfer of such note does not extinguish the lien. In the same case it is also held "that whatever doubt once existed as to the assignability of a general maritime lien, the question has been put at rest by repeated adjudications. The lien of a salvor on account of salvage service, of a mariner for wages, of a material man for repairs or supplies, is strictly personal, and does not pass to his assignee. The same must be said of a lien for towage. It is equally well settled that an assignment or transfer of the claim which constitutes the basis of the lien, extinguishes the lien." In The Sarah J. Weed, 2 Lowell, 555 (1877), it was on the contrary held that by the maritime law a maritime lien is assignable. CANADIAN CASES. A maritime lien is not indelible, but may be lost by delay to enforce it, where the rights of other parties have intervened. The Haidee, 2 Stuart, 25. In the case of The Aura, Young's Ad. Decisions, 54, the plaintiff was master and co-owner. He accepted a promissory note from three of his co-owners for the balance of wages due him. The note was not paid, and he instituted a suit in rem against the vessel for the amount of his wages, and for which the note had been given. Prior to the beginning of the suit, the ship had been sold to a third party, and paid for by him, in ignorance of the master's claim. Held that the master had not lost his lien against the vessel, and his claim was pronounced for with costs. Except in the case of bottomry, a maritime lien is inalienable, and cannot be assigned or transferred to any other person so as to give the transferee a right of action in rem as such assignee. The City of Manitowoc, Cook, 185. 1887 THE PLOVER. 1888 June 15. THE ST. CLOUD, HER CARGO AND FREIGHT. Salvage Services-Requisites of-Towage. The St. C. having sailed from St. John, N. B., with a cargo of deals, bound for Liverpool, went ashore at Dipper Harbor, about twenty-five or thirty miles below St. John. The ship's agents, at the latter place, engaged two tugs, the S. K. and the L., to go down and pull her off. For this service they were to receive an agreed sum, and the S. K. was to receive a further sum, in case the vessel was got off, for towing her back to St. John. When the tugs reached the vessel it was found that more men and appliances were needed, and the S. K. returned to St. John for a steam pump and other appliances. The L., by the request of the master of the vessel, remained to tend on the ship. During the absence of the S. K. the vessel was floated, and through the exertions of the L. the ship was prevented from going on the rocks. Held:-That the services rendered were more than towage services, and that the L. was entitled to salvage reward. In this case a summons in rem was served upon the ship St. Cloud, of 1500 tons burthen, and of British register. The claim was for $1,500 for salvage services rendered the St. Cloud the 2nd and 3rd days of January, 1888. The vessel, deal laden, sailed from the port of St. John, N. B., Dec. 30, 1887, bound for Liverpool, Great Britain. On January 1, 1888, the vessel got ashore at Dipper Harbor, about twenty-five or thirty miles from the port of St. John. The master of the vessel went ashore at Dipper Harbor and telegraphed the fact of the disaster to Wm. Thomson & Co., the ship's agents at St. John. The agents at once arranged for two tugs, the Storm King and the Lillie, to proceed to Dipper Harbor for the purpose of pulling the vessel off the beach. The arrangement between Capt. Ferris, of the Storm King, and Mr. R. Thomson, a member of the firm of Wm. Thomson & Co., was that the Storm King was to be paid $60 for a satisfactory trial to get the vessel off where she then lay at Dipper Harbor, and if she came off, a further sum of $150 for towing her to St. John. At the suggestion of a representative of one of the insurance companies, the tug Lillie was also engaged to accompany the Storm King, and was to 1888 THE receive $50 for a satisfactory trial in trying to get the vessel off. The only arrangement made about the Lillie was that she was to go down and make a satisfactory trial in aiding ST. CLOUD. to get the vessel off. Nothing was said about any towage service on the part of the Lillie. The two tugs went to Dipper Harbor and got alongside the ship at the night tide of January 2, between 11 and 12 o'clock. They remained by her all that tide, but were not successful in moving the vessel. It was then thought best, after consultation between the master of the vessel and Capt. Thomas and Mr. Cowie, the representatives of the insurance companies, for the Storm King to return to St. John for a steam pump and other appliances and more men. At the request of the master of the vessel, the Lillie agreed to remain and tend upon the ship during the absence of the Storm King, for $50 a day. The Storm King accordingly left for St. John, and while absent, by putting out a warp and kedge anchor, and other means at hand, the vessel was floated and towed out to the middle of the harbor. A fresh breeze sprang up, which carried her over to the eastern side of the harbor. The tug got alongside of the vessel, put a line through the bow pipe and kept her off the rocks on the eastern shore. In going ahead the tug broke her hawser, but the ship now took a start toward the western shore, and when about two-thirds of the way across, the wind took her out of the harbor. The tug then fastened a line to her and started with the vessel for St. John. The Lillie, with the vessel in tow, met the Storm King returning near Musquash, when she was handed over to the latter tug, and finally towed to the port of St. John. The ship in her damaged condition was valued at $15,200, the cargo at $12,800, and the freight at $7,000, or a total of $35,000. It was also in evidence that the Lillie was 49 tons register, five years old, and originally cost $7,000. It was also admitted that both tugs were owned by the New Brunswick Trading Company, the plaintiffs in the action, a duly incorporated joint stock company. The defence was that the Lillie should only be paid for towage services, but it was held by the Court that the services rendered were real salvage services, and the promovents were awarded $700 and costs. 1888 THE C. W. Weldon, Q. C., for the plaintiff, the tug Lillie, cited The Minnehaha (1), The White Star (2), The 1. C. Potter (3), ST. CLOUD. The Jubilee (4), The Alfred (5), Pritch. Dig., secs. 751, 781, 783. F. E. Barker, Q. C., for defendants, argued that these cases established that when there is an agreement for either towage or salvage it will be enforced, provided in carrying it out no unexpected circumstances arise outside the contemplation of the parties at the time they made the agreement, in which case the Court can give additional remuneration, otherwise the agreement will be carried out. Salvage services may arise during towage service which would justify tug abandoning the towage and claim remuneration for salvage. The Minnehaha is a case in point. The service rendered by the Lillie was within the agreement made with the ship's agents. The tug was in the employ of the ship at $50 per day, and the ship was entitled to have her services for the full time, as agreed. There were no peculiar circumstances in this case to warrant salvage reward. Weldon, Q. C., in reply. Dr. Barker has not given a proper view of the evidence. The tug is not required to tow at all hazards. The engagement was at an end by sending the Storm King to St. John. Then another arrangement was entered into. The plaintiffs are entitled to recover for towage, and subsequently for salvage. The Lillie is entitled to pay for risk run. The master of the ship wanted the Lillie to tow the ship. The exertions of the Lillie kept the vessel from the rocks on the east shore of the harbor. In doing that the tug undertook a greater risk than mere towage service. Without the aid of the tug, the vessel in her disabled condition could not have got out of Dipper Harbor, and looking at all the circumstances it is evident the services performed were different from those contracted for, and were such as to entitle the plaintiffs to salvage reward. And now (June 15, 1888), the judge having taken time to consider, delivered the following judgment : (1) 4 L. T. N. S. 411. (3) L. R. 3 A. & E. 292. (5) 50 L. T. 511. |