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Lynchburg, and others, many of the claimants of the captured property were persons who had made advances upon portions of merchandize shipped on board the vessels captured, and claimed a lien upon the property, by express agreement, as security for the advances.
Such claims were held to be inadmissible, except in the instance where the bills of lading were in. dorsed to the person making the advance, giving to him the actual right of possession of the property, leaving to the shipper only a claim to the surplus of proceeds after payment of advances.
In the case of the Delta, adjudicated in the New York Federal court, citizens of Massachusetts claimed a lien upon the captured vessel to the amount of £1,900, by virtue of a mortgage upon the vessel to that amount, executed in London, by the holder of the legal title, and assigned to them.
The claim was rejected by the eminent judge, who, in passing upon the question, says:
“Preliminary to the question of prize or no prize, to be determined upon the proofs, is one in relation to the character of the claim of Isaac and Seth Adams, and their right to assert the same, as against the captors.”
“Although the conclusions to which the court has arrived, upon the main question, cannot be affected by the determination of that of a mortgagee of captured property to assert his mortgage in a prize court, and demand that it be paid out of the proceeds of the property, if condemned, it is nevertheless proper to consider that question.”
“Charles W. Adams being the sole owner of the brig, executed a bill of sale to the claimant, Marsh,
in Liverpool, and took back from him a mortgage to secure the purchase-money, for £1,900 sterling."
“Isaac and Seth Adams, claim solely as the hold. ers and owners of this mortgage.”
“Now there is, perhaps, no doctrine better settled in the law of maritime capture, than thisthat all liens upon captured property, which are not, in their very nature, open and visible (like that for freight for enemy cargo laden on board a neutral vessel) are disregarded by prize courts.
“The great principles of international law require that no secret liens, no mortgages, no bottom ry bonds, no claims for repairs, supplies, or advances, should be allowed to cover and protect private property while sailing on the ocean. If the door were once opened for the admission of equitable claims and liens, there would be no end to discussion and imposition, and the simplicity and celerity of prize proceedings would be alike sacri. ficed. (The Francis, 1 Gall., 445; The Josephine, 4 Rob., 25; The Tobago, 5 Rob., 218; The Mari. ana, 6 Rob., 24; The Sisters, 5 Rob., 161.)
“The claim, therefore, of the brothers, Isaac and Seth Adams, is one that cannot be regarded in this court." In the case of the Arcola, adjudicated in the Dis: The Arcola.
United States trict Court of the United States in Maryland, the Dis learned judge, while recognizing the correctness of Maryland. the doctrine, allows the claim of the mortgagee of the vessel, solely because his lien was visible.
In reviewing the cases in which liens upon captured property have been disallowed, the learned judge says:
"Now these were all secret liens, of which the
captors could learn nothing when they made the capture, and depending for their existence upon the different laws of different countries. The difficulties which the examination of such claims would impose upon the prize courts in deciding upon them, have excluded such claims from their consid. eration. But do these considerations apply to the case of a mortgage, regularly recorded under the act of Congress of July 29th, 1850, and indorsed on the certificate of enrolment ? Our act of Congress does not require the mortgage or memorandum thereof, to be indorsed on the vessel's register or enrolment, as the statute of 6 Geo. IV., ch. 20, and subsequent British statutes do. But it was done in this case, and it is a practice that should be followed in similar cases. It notifies the captors, immediately on inspection of the ship's papers, that there is an interest in the vessel, vested in parties friendly to the government, and puts them to their election whether, under such circumstances, they will proceed in the capture.”
Upon this ground the claim was allowed, upon
terms, as to costs. The Amy War. In the case of the Amy Warwick, on the claim of of Fohn L. John L. Phipps, & Co., decided in the United
ops & Co. States District Court for the District of Massachu. U. S. Court,
setts, the learned judge, in applying the law in relation to liens upon captured property, takes occasion to declare the distinction between such liens as may be upheld in a court of prize, and such as cannot be protected, which seems to cover the whole ground.
Ile says: “The counsel for the captors contend that the claimants had only a lien on this cargo,
and that liens will not be protected or regarded in a prize court. This position is sustained by the authorities as to certain kinds of liens. The extent of this doctrine and the reasons on which it is founded, are stated by the Supreme Court, in The Francis, 8 Cranch, 418. It is there said that cases of liens created by the mere private contract of in dividuals, depending upon the different laws of different countries, are not allowed, because of the difficulties which would arise in deciding upon them, and the door which would be open to fraud.' Similar reasons are given by Lord Stowell, in The Marianna, 6 Rob., 25, 26, and in several other cases. These reasons are especially applicable to latent liens created under local laws. They do not reach the case now before the court. This coffee was purchased by the claimants at Rio, and shipped by them on board this brig under a bill of lading, by which the master was bound to deliver it to their order, and they ordered it to be delivered to J. L. Phipps & Co., that is, to themselves. They then retained the legal title, and the possession of the master was their possession. Being the legal owners of the property, they can hardly be said to have a lien upon it; a lien being in -trictness an incumbrance on the property of another. Their real character was that of trustees holding the legal title and possession with a right of retention until their advances should be paid.
"In The Francis and many other cases it is held that the lien of a neutral carrier for the freight of enemy's goods, is upon capture to be allowed. The general doctrine seems to be that where a neutral has a jus in re; where he is in possession with a
right of retention until a certain amount is paid to him, the captor takes cum onere and must allow the amount of such right. But where the neutral has merely a jus ad rem, which he cannot enforce without the aid of a court of justice, his claim will not be recognized by a prize court. (The Tobago, 5 Rob., 218.)”