LIENS SHOULD BE ENFORCED WITHOUT LACHES.

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cases will, therefore, only furnish mere hints or sug gestions, whereby the intelligent judge may be enabled to apply the maxims of the maritime law to such cases as may come before him, by the familar process of analogy.

Nevertheless, it would seem to be not unsafe, to adopt as a guide, if not as an inflexible rule of practice, this proposition: that, when supplies are furnished for the purpose of expediting a ship on her course, and such. supplies have been rendered necessary by the disability of the ship or the inability of the master, then the furnisher should be secured by a lien on the ship or the cargo, or on both.

An express agreement is not deemed to be a necessary prerequisite to the existence of a maritime lien. 19 How. 359, Pratt v. Reed; 1 Spr. 571, The Sea Lark.

Although it has been already stated generally, that liens are never severed till satisfied, still they may doubtless be lost by lapse of time, laches or voluntary and intentional waiver or other sufficient cause. But it would seem that neither the mere lapse of two or even six years of time would extinguish a lien, if there were no constat of laches also. The Eliza Jane, 1 Spr. 152; The General Jackson, ibid. 554.

As against bona fide purchasers, a lien should be enforced with due diligence and in a reasonable time.

In the General Jackson (supra), Judge Sprague said: “The rule is, that as against bona fide purchasers, the lien shall be enforced within a reasonable time; and what constitutes a reasonable time, depends upon the circumstances of each case. Generally a lien of this character should be enforced soon after the expiration

398

LIENS ON DOMESTIC AND FOREIGN SHIPS.

of the first voyage, after supplies or materials furnished, and it is only under peculiar circumstances, that it will be extended beyond such time.

"These liens are created for the benefit of commerce. Foreign vessels often require repairs and supplies. To enable the master to obtain them, a tacit hypothecation is given. But being unrecorded, third parties may not be apprised of their existence or extent. And, as against such parties, it is proper that it should be considered as waived, or extinguished, unless enforced with reasonable diligence."

The lien on foreign ships for repairs or supplies, exists by the maritime law; and the remedy by proceeding in rem is always open for material men; but they have no such lien or remedy in the United States against domestic ships, except by the aid of special legislation by the different States respectively. By the decision of the cases of the General Smith (4 Wheat. 438), and the Barque Chusan (1 Spr. 39), it will be seen" that vessels belonging to one State, when in the ports of another, are deemed to be so far foreign that a lien for necessary supplies is created by the general maritime law."

All liens arising under the general maritime law, are beyond the reach of local State legislation, and cannot be thereby impaired. Such legislation, if so intended, would, in that respect, be nugatory. Indeed, by the existing law of Massachusetts, express provision is made to save and protect such liens. And if any attempt were made to abrogate or limit them by local legislation, it would devolve upon the Federal courts to enforce them to their full extent.

A furnisher of provisions has a lien upon a vessel not in her home port, even though the master should

LIENS LOST BY WAIVER OR LACHES.

399

be under contract to victual and man her, and the furnisher knew that fact. The Monsoon, 1 Spr. 37.

A foreign furnisher of needed supplies, though also himself a consignee, may be secured by a lien on the vessel for the supplies so furnished. The Eliza Jane, 1

Spr. 152.

There are other recent decisions on this subject to which reference may be made. The Aline, 1 W. Rob. 119; The Benares, 7 Notes of Cases, Sup. 53; The Chimera, decided November, 1852; The Saracen, 6 Moore (P. C. C.) 285; The Gustaf, 1 Lush. 506.

In 2 Spr. 33, (The Cargo of the Anna Kimball), the acknowledged doctrine, that maritime liens are not dependent on possession, was reaffirmed judicially.

In the Undaunted (ibid. 194), that no lien existed in war time, for charter money; and, in the Amy Warwick (ibid. 155), that holders of lien were not regarded in prize courts.

Liens may be lost by waiver or credit or lapse of time and laches. Credit, given originally, destroys the lien; a draft, accepted subsequently, has a similar effect. The giving credit for supplies furnished to a foreign ship for a fixed time, does not extinguish the lien, nor does the permitting a ship to depart on her voyage without payment. The Brig Nestor, 1 Sum. 73.

Although a loss is possible, yet it seldom happens that a maritime lien becomes extinct by the voluntary act of the party to be benefited thereby. No possession is necessary to retain it; and the lien itself, being a secret inchoate right, tacitly following the thing, however it may change either in place, form, feature, or

400

LIENS SELDOM EXTINGUISHED VOLUNTARILY.

mode of existence, remains attached to the thing in its original state or condition so long as it may so continue, or travels along with and adheres to its proceeds, should it become, by sale or otherwise, converted into money or its equivalent in value.

TOWAGE is a maritime service, for which a lien security may attach to the ship or property, and which may, under peculiar circumstances, be exalted into a salvage service and rewarded as such.

There are several leading cases upon this subject; but at present, I shall refer only to two. The Medora, 1 Spinks, 17; and The Princess Alice, 6 Notes of Cases, 585.

In making these references, it is for the special purpose of giving what seems to be the most authentic and compléte definition and description of this, at times, highly meritorious service. In the Princess Alice, Dr. Lushington, December 12, 1848, expressed himself as follows:

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Towage may be described as the employment of a steamer to expedite the voyage of a vessel, when nothing more is required than the accelerating her arrival at the place of destination.

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Many circumstances, however, are constantly arising which will give to a towage service the character of a salvage service. It may be sufficient to mention some of them only; as where a ship is disabled in her hull or rigging; where she is aground, or where the performance of the towage service is necessarily at