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A river being a public thoroughfare, must, as a rule, be kept open and free from danger for all ships navigating thereon. A temporary hindrance of the common right, as for the purpose of a launch, may be justifiable after customary, or, if there be no custom, reasonable notice has been given, and other proper precautions against accidents taken. The proof of such notice is on those who interrupt the navigation: Where reasonable signals had been given, but other precautions omitted, and damage was done by the vessel launched to a vessel neglecting to take notice of the signals, both were held to blame (n).

It has been held that the owners of a barge, sunk by unavoidable accident in a public navigable river, have no duty thereby cast upon them to remove it, or to use, after it has ceased to be in their possession and control by their abandoning it or transferring it to another person, any precaution by placing a buoy, or otherwise, to prevent other vessels striking against it; and are therefore not liable to an indictment or to an action at the suit of a party sustaining damage by reason of their omitting so to do (o). And in an action for damage done to the plaintiff's vessel by the defendants' mooring anchor, which had been removed from the place in a navigable river where it had been for some time known to be, without anything to indicate its new position, the declaration was held bad on demurrer for not showing that the defendants were privy to the removal of the anchor, or alleging any duty on them to refix it, or indicate its new position (p).

When, in a cause of collision, a vessel is held to blame by the Court of Admiralty, the amount of damage sustained is referred to the registrar, whose appraisement is seldom disturbed; it may, however, be referred back to him for reconsideration (q).

(n) The Vianna, Swab. 405. The Blenheim, 4 Notes of Cases, 493.

(0) Rex v. Watts, 2 Esp. 675. Harmond v. Pearson, 1 Camp. 515. Brown v. Mallett, 5 C. B. 599. White v. Crisp, 10 Exch.

312.
(p) Hancock v. The York, Newcastle and

Berwick Railway Company, 10 C. B. 348. And see, as to the duty in such cases of the proprietors of a public canal, Parnaby v. Lancashire Canal Company, 11 Ad. & E. 223.

Parrett Navigation Company v. Robins, 10 M, & W. 593.

(g) The Matchless, 10 Jurist, 1017.

SS

CHAPTER IV.

OF MARITIME LIENS (a); AND HEREIN,

SECTS. 1. Of the Definition and Nature of Maritime Liens, p. 618.
2. Of their Ranking and Priority inter se, p. 619.

3. Of Marshalling Assets for their Protection, p. 624.
4. Of their Duration and Extinguishment, p. 626.

5. Of Procedure in Admiralty to enforce them, p. 627.

6. Of the Jurisdiction exercised by the Court of Admiralty under 3 & 4 Vict. c. 65, p. 631.

7. Concordance of this Doctrine with the Maritime Law of other States, p. 631.

1. Of the Definition and Nature of Maritime Liens.

IN the preceding pages we have seen that persons who have rendered services to a ship by their labour as mariners, by pilotage, towage, salvage, and the loan of money on bottomry for repairs or necessaries, may obtain compensation or reimbursement from its owners by proceedings in rem- that is, against the ship itself in the Court of Admiralty.

We have seen, also, that the owners of a ship, which has been injured by collision, are at liberty to seek their remedy in a cause of damage instituted in that court against the ship, to the mismanagement of which the injury is imputed, and that by the marine law, and the maritime codes of foreign nations, the ship is bound (b), that is, affected, with a privileged charge (c), not only for security of the claims above mentioned, but also for the faithful performance by its owners of the covenants into which they have entered with the mer

(a) The reader is indebted in a great degree for such elucidation of an important branch of Maritime Law as this Chapter may be thought to afford, to a friendly criticism of Lord Tenterden's work by a learned writer in the Law Magazine, under the signature of H. C. C., who was good enough, also, personally to direct the Editor's attention to what he considered to be an omission, and to assist him in supplying it. (b) Ante, p. 122 in notes. Ships, the Code de Commerce (liv. 12, tit. 1, p. 190), are “affectés aux dettes du vendeur et spécialement à celles que la loi déclare privilégiées. See ante, p. 237. The meaning of a privilege is thus explained in the French Code, "Les biens du débiteur sont

le gage commun de ses créanciers, et le prix s'en distribue entre eux par contribution, à moins qu'il n'y ait entre les créanciers des causes légitimes de préférence." Code Civil, liv. 3, tit. 18, ch. 1, No. 2093. "Les causes légitimes de préférence sont les priviléges et hypothèques," No. 2094. "Le privilége est un droit que la qualité de la créance donne à un créancier d'être préféré aux autres créanciers même hypothécaires," ch. 2, No. 2095. "Entre les créanciers privilegiés la préférence se règle par les différentes qualités des priviléges," No. 2096. créanciers privilégiés qui sont dans le meme rang sont payés par concurrence," No. 2097. (c) Affectés par privilége, Valin. Comm. sur l'Ordonnance, liv. 3, tit. 1. art. 11.

"Les

* Mr. H. C. Coote, of Doctors' Commons, the learned author of the New Practice of the High Court of Admiralty, 1860. Butterworths.

chant and freighter. But the precise nature of the privilege, and the rules which limit and regulate its operation in the admiralty law of England, have been noticed rather as things assumed to be familiarly understood, than requiring discussion and explanation.

A maritime lien-differing, like the hypothec of the Scotch law (d) from a common-law lien, in this particular, that it exists without possession, actual or constructive, of the subject on which it is established-is a privileged claim upon a thing in respect of service done to it, or injury caused by it, to be carried into effect by legal process (e).

That process issues in this country from the High Court of Admiralty, which takes possession, by its officers, of the ship, freight, or cargo upon which the privilege is alleged, inquires into its merits, and (in the case of several claims) prefers or postpones it, if admitted, according to an order in which the dates of the services rendered, and not the intrinsic value of them, determine their precedence. The simplest illustration of this principle is the case of distinct claims of the like nature, founded e. g. on bottomry bonds. It has been stated, in an earlier part of this Treatise (f), that if two bonds have been given, the last in point of date is entitled to priority of payment, because the last loan furnished the means of preserving the ship; and without it, the former lenders would have entirely lost their security, salvam fecit totius pignoris causam (g).

2. Of their Ranking and Priority inter se.

Subject to this preference in respect of posterior date, all liens suable in Admiralty, and arising ex contractu or quasi ex contractu (h), as for wages, bottomry, pilotage, towage (i), and salvage, are esteemed to be equal and co-ordinate. Where the Court of Admiralty, at the suit of a prior petens decrees the sale of a res, the proceeds of which are exhausted by his judgment, all other creditors who had liens upon it, and who before the decree would have been admitted on their petition to compete with him, are thenceforth concluded, and the res in the hands of its purchaser is discharged of their liens (k). If a surplus remains after satisfying the decree, the rest of the suing creditors of equal grade will be entitled to share it rateably. But until decree pronounced, the liens of all who have been diligent to

(d) Hypothec is a security established by law to the creditor on goods continuing in the debtor's possession. Erskine's Principles.

(e) See ante, p. 128.
(f) Ante, pp. 138, 516.
(g) Ante, p. 128.

(h) The Gazelle,

Notes of Cases, 79. (i) Which may become salvage under circumstances. The Medora, 1 E. & A. 17; and see the Kingalock, 1 E. & A., in which

it was held, that a claim for salvage might be engrafted on an agreement for ordinary, but not on an agreement for extraordinary towage; and that the condition of the ship having been concealed from the master of the steam-tug, his agreement for ordinary towage was not binding upon him.

(k) The Saracen, 2 W. Rob. 453; the same, on appeal to Privy Council, 11 Jur. 255. 6 Moore, P. C. 56. The Clara, the Desdemona, Swab. 158.

submit them to judicial examination, take rank, without preference of the creditor by whom the proceedings have been initiated, according to the relative lateness of the services in which they have their origin. He who appears by this test of time to have the prior right or lien in law, will be paid first out of the proceeds of the res on which it attaches; the next, and the next to him, must be satisfied with what remains unforestalled, however insufficient it may be to meet his demand (1).

It is obvious, that in the application of this principle, the very nature of some liens will often secure to them priority over others. The wages, e. g., of the master and mariners, earned by the service of bringing the ship to her destined port, have insured the eventual value of all services previously rendered, and therefore obtain priority over other liens ex contractu or quasi ex contractu, as for salvage, pilotage, towage, or bottomry (m). The claims of persons who have paid seamen's wages at the master's request, stand upon the same ground (n). Wages antecedently earned, as in an outward or divided voyage, or due under contract at the expiration of stipulated terms, without reference to the ship's arrival at the port of final destination, have been postponed to subsequent salvage (o), but no such distinction will give bottomry, precedence over them (p). It has priority of necessaries (q), and prior salvage (r), and gives way to subsequent salvage, pilotage, and towage (s). These instances will suffice to exemplify the pervading general rule, that the services which, in the words of Sir John Nicoll, "operate for the protection of prior interests" (t) are privileged above those interests. Bottomry, being the result on the part of the lender, of a calculation of risk to which the stipulated premium is made commensurate, is not regarded quite so favourably as other liens ex contractu; and, on the other hand, salvage, a service rendered often at great risk of property and life to the salvors and without which the res might have been wholly lost with all the liens and interests attaching to it, is liberally considered by the law, yet not so as to obtain priority over subsequent bottomry or wages (u).

A master who has bottomried his ship by a bond in the usual form, i. e., binding himself as well as the ship and freight, cannot, against the claim of the bondholder, assert the lien for wages, which, "so

(1) The Constancia, 2 W. Rob. 405, but see the Clyther, 5 Ir. Jur. 317, where the second bondholder had notice of the prior bond.

(m) Ante, p. 516. The Madonna d'Idra, 1 Dods. 40. The Sidney Cove, 2 Dods. The Constancia, 4 Notes of Cases. The Hersey, 3 Hagg. 407.

(n) The William Safford, 1 Lush. 69. (0) The Selina, 2 Notes of Cases, 18; and the judgments of Dr. Lushington in The Mary Anne, 9 Jurist, 95. The Union, 1 Lush. 128. But see the observations of Lord Stowell, in the Sidney Cove, 2 Dods. 13; and of Judge Story, in the Brig Nestor,

1 Sumner's Rep. (Am.), p. 86; and see the Jonathan Goodhue, Swab. 524.

(p) Madonna d'Idra, 1 Dods. Rep. 40. Constancia, 4 Notes of Cases, 68. The William Safford, 1 Lush. ante, 69. The Union, 1 Lush. 128.

(q) The William Safford, ante. (r) The Selina, ante. The Favorite de Jersey, 2 Rob. Rep. 232.

(8) The Dowthorpe, 2 W. Rob. 79.

(t) The Sidney Cove, ante. La Constancia, 2 W. Rob. 405; and 4 Notes of Cases, 518. Duke of Bedford, 2 Hagg. 304. The Eliza, 3 Hagg. 89.

(u) The Selina, ante.

far as the case permits," he now has under the Merchant Shipping Act. To allow precedence to his lien would operate to the injury of those to whom he has made himself personally responsible, and to whom he has hypothecated the very fund from which he seeks preferential payment (w).

The maritime lien of damage originating in the wrong of the master and crew of the vessel in fault, and founded on considerations of public policy for the prevention of careless navigation, takes precedence within the limits which the law assigns to the indemnification of the injured party, even though anterior in date,—of liens, ex contractu (x). It absorbs, in the event of the res proving insufficient to meet all demands, the liens of wages, towage, pilotage, and bottomry, leaving them to be enforced by proceedings against the persons of the owners. Were it otherwise, the owners to whom the damage is imputed would be indemnified at the expense of the injured party-the wrongdoer at the cost of him to whom the wrong has been done (y). The suitor, in a cause of damage, is entitled to a restitutio in integrum. This has been held to include an outlay which, though probable, would have been discretionary if there had been no collision, and was made indispensable by the collision. Compensation for the expenses attending the detention of the damaged ship, and the amount of profit lost by such detention, also form part of it. Discount, on a charge for repairs, if received, or which might have been received if demanded, is a proper item of deduction.

The lien of damage is preferred to prior bottomry on the ground that the owner could only hypothecate his vessel subject to its legal liabilities (z). "I apprehend," said Dr. Lushington, in the case of the Aline (a), "that the mortgagee and the bondholder cannot take any right greater than the owners could confer, viz., a lien on the ship as a security against the owner and all who claim under him. Neither of them could be a competitor with a successful suitor in a cause of damage; and for this reason, that the mortgage or bottomry bond might, and often does, extend to the whole value of the ship; if, therefore, the ship was not first liable for the damage she had occasioned, the person receiving the injury might be wholly without a remedy, more especially where the damage is done by a foreigner; and the only redress is by proceeding against the ship. Another reason that would incline the preponderance in favour of the person suffering the damage, arises from the consideration that he has no option, no caution to exercise; the creditor on mortgage or bottomry has; he may consider all the possible risks and advance his money or not, as he may think most advisable for his own interest. He has an

(w) The Jonathan Goodhue, Swab. 524. (x) The Benares, 7 Notes of Cases, 54, suppl.

(y) The Linda Flor, Swab. 309.

(2) The Benares, 7 Notes of Cases, 11, suppl.

(a) I Wm. Rob. Rep. 119.

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