decided on the claim of a person who had advanced money to pay seamen's wages (x), and on a claim to be recouped advances to salvors (y). The loans in both cases were held to have been made on personal credit, and not to constitute a lien on the property salved. An agreement to refer is no bar to an action in the Court of Admiralty, and therefore does not release the lien (z).

5. Of Procedure in Admiralty to enforce them.

Next are to be considered the procedure for enforcing a maritime lien, and the mode in which, without detriment to the rights secured to parties by the common law, effect is given to the privileged claims which are cognisable in the Court of Admiralty.

And first, it is to be observed, that a proceeding in rem and a maritime lien are correlative, and that wherever the latter exists the former is competent (a). The common law liens, which attach upon ships and cargoes, and can only be made effectual by the possession and retention of the res subject to them-as for dock and harbour dues, repairs or warehousing-are superseded by the process of the Admiralty. With the exception of the case of salvors (b), whose. continued hold of the res may sometimes be necessary to prevent its escape from the process of the court, even those who have maritime liens must, if they would obtain its assistance, relinquish their possession. To give effect to a maritime lien it will forcibly dispossess those who, for what cause soever, claim to detain a vessel. With an entire disregard of the existence of all other encumbrances, the res affected by the maritime lien will be arrested, and on decree made, sold by the Admiralty marshal or commissioner; but that done, his first duty is to satisfy, out of the proceeds, the liens which the common law would enforce, paying the residue, less the expenses of sale, into Court, for the use of the successful suitor (c). Once arrested, the res cannot be taken out of the custody of the Admiralty by any other tribunal (d); its liens, even in the case of bankruptcy and insolvency, having priority over all other debts, even mortgages, except those common law liens, the essential condition, and security of which, possession, is removed by its process, and which are entitled to be first satisfied out of the proceeds (e) of a sale under its decree.

The ordinary mode of proceeding in the Court of Admiralty for the

(x) The New Eagle, 4 Notes of Cases, 427. In cases of damage, that the res, often insufficient to compensate for the damage, may not be further burdened with the costs of mariners' suits, this rule has been relaxed by the present learned Judge of the Court of Admiralty, and the suitor (where there is no appearance for the owner) has been allowed to pay seamen's wages, and claim in respect of them; and see, in a case of bottomry, The John Fehrman, 16 Jur. 1122. (y) The Louisa, 6 Notes of Cases, 532.

(z) The Purissima Concepcion, 7 Notes of Cases, 151.

(a) 7 Moore, P. C. 267.

(b) The Glasgow Packet, 2 W. Rob. 312, 313.

(c) The Harmonie, 4 Notes of Cases, 174. 1 W. Rob. Rep. 178.

(d) Ladbrooke v. Crickett, 2 T. R. 649. (e) The Orelia, 3 Hagg. Adm. Rep. 83. The Hersey, ibid. 407, 408. The Westmoreland, 4 Notes of Cases, 174.

assertion of a maritime lien, is by arrest of the ship, her" tackle, apparel, and furniture,"-words which include the whole interest of her owners-under a warrant which is issued on an affidavit of the complainant, stating in general terms the nature of his claim, and which contains a citation of all parties interested (f). So far, the proceeding is in rem,-a process to make perfect a right, inchoate from the moment the lien attached, and the only one which could be effectual in the frequent event of the owners being unknown or beyond the reach of the courts of this country. But when bail has been given, as it may be, to the action, and the plaintiff has accepted, in the room of his lien, the bond of the defendant and two fide jussores, it becomes a proceeding in personam, the suitor recovering the amount of his judgment from the defendant and his bail. The security thus substituted for the res is enforced by attachment. The bail, in a cause of damage, are only liable to the extent of the value of the ship and freight arrested, although the damage exceed that value, and the bail be given for a larger sum (g). It is not in the option of the suitor to refuse or accept bail justified according to the practice of the court, to be of competent ability. If it were, the shipowner might be deprived of the profit of his ship's employment; the merchant of a market for his goods; both ship and goods might be deteriorated by detention, or overwhelmed with an accumulation of fees of possession, dock dues, and warehouse charges.

When a res is sold by order of the Court of Admiralty and its proceeds brought into the registry, the lien of the suitor attaches upon them as previously on the res itself (h). In undefended cases

an appraisement by the marshal is directed before sale, in order to ascertain, for the benefit of creditors, what may be a proper reserved price. And when, as in cases of salvage and of damage, the amount recoverable by the suitor is governed or limited by the value of the property salved, or the value of the wrong-doing vessel, and the parties cannot agree in their estimate of it, the court, though bail has been given, will order the res to be appraised (i). Should it afterwards be sold for a higher or lower price, that fact will have no influence on the adjudication; the amount of an appraisement by the marshal, unless questioned and reviewed at the time, being taken to be the real value (k).

The cause then proceeds by libel, responsive allegation, and rejoinder, the evidence in chief being taken down by the examiner on reading the plea to the witness, and the cross-examination on written interrogatories; or by "Act on Petition;" a pleading in which the allegations on each side are supported and rebutted by affidavits and the production of such documentary evidence as is by statute (7) or

(f) Brown's Civil and Admiralty Law, vol. ii.; and Pritchard's Admiralty Digest, tit. Practice, p. 301.

(g) The Duchesse de Brabant, Swab. 264. (h) The Neptune,2 Knapp, 94. (i) The Persian, 1 Notes of Cases, 305. The Mellona, 6 Notes of Cases, 69.

(k) Ibid. And see The Betsy, 5 C. Rob. 296,

66

(1) e. g. In cases of salvage, by 9 & 10 Vict. c. 99, s. 16, the examination taken on oath by a receiver of droits, of any person belonging to a ship in distress, or others able to give an account thereof;" in cases

the practice (m) of the court admissible, without the examination of witnesses or formal answer upon oath.

It has been mentioned that in causes of collision the judge is assisted by the nautical skill and experience of two of the elder brethren of the Trinity House (n). The same course is also sometimes resorted to in the hearing of salvage suits. The Trinity Masters are not sworn, and though their opinions are attentively considered, the sentence is not theirs but of the judge (o). Where there is ground for apprehending that both parties may be held to blame (p), it will be prudent for the owner of the ship which has sustained the more serious injury, to resort to the Admiralty for relief; and there probably, in a great majority of cases, substantial justice is reached. Since the passing of the 3 & 4 Vict. c. 65, which empowers that Court to inform its conscience upon matters of fact, by directing issues to be tried in the courts of common law, it has occasionally been matter of murmur, that parties to inquiries affording so much scope and temptation to false swearing should be compelled to abide the result of an opinion influenced in some degree by the effect of affidavits and depositions on the minds of unsworn laymen, and to lack the advantage of a vivâ voce examination and cross-examination in the eye of a jury, of persons from whom the very nature and mystery of their calling render the truth most hard to be elicited (q). It is urged on the other hand, that the issues in a cause of collision are rarely questions of mere fact; and that to throw them down before a jury not conversant with nautical practice may, however great the vigilance of the judge, involve a decision irreconcileable with the principles of admitted science. It has been thought, too, to approximate to an absurdity, to examine and cross-examine witnesses regarding laws and rules which are incontrovertible and ought to be well known to the Court, oftentimes with no effect but to confound the understandings of twelve men wholly unused to such inquiries, to whom the language of sea-farers is strange, and who, haply, would have enough to do, in cases relating to matters with which they are familiar, to guard their minds against the undue influence of a popular address and of the first and the last word (r). In all cases, whether of damage, salvage, wages, &c., the examination vivá voce of witnesses in open court, and before commissioners, in the first instance, and for the purpose of clearing up doubts as to the effect of

of damage, the report made to the Board of Trade under 9 and 10 Vict. c. 100, s. 19, which is evidence against the owners of the steam vessel by whom the report has been made.

(0) See the Christiana, 7 Notes of Cases, 7; ibid. 47, suppl. Chapman v. Williams, 4 Notes of Cases, 586. The Benares, 7 Notes of Cases, 539. The Blenheim, ibid. 399.

(p) Ante, p. 599. (q) The case of the Harriet, 1 Wm. Rob. p. 429, is believed to be the only one in which an issue has been directed.

(m) Such are the log, the protest, the ship's articles, all of which are received as evidence, subject, it would appear, to the same rules as at Common Law, but with a somewhat less strict observance of them. Indeed, the (r) See the Anne and Mary, 2 Wm. Rob. form in which the evidence is taken in pro- Rep. 190. See also the Alfred, 7 Notes of ceedings by act on petition,-viz., by affi- Cases, 354, and Law Magazine, No. 100, davit,-renders this laxity unavoidable.

(n) Ante, p. 602.

p. 70.

evidence taken on depositions or affidavit, and the exercise of the other powers conferred by the statute, have become part of the usual practice of the Admiralty.

Before decree, a conflict for priority between liens may be raised by the petition of a second claimant, but a decree once pronounced, the liens of all other creditors are forfeited, the res or proceeds of it passing into the hands of the purchaser or successful suitor exonerated from its old encumbrances.

Some question upon this point appears of late years to have been founded on the form of the bail-bond required by the Admiralty, on payment of money to a successful suitor. The observations of Lord Langdale upon this instrument, in the case of the Saracen above referred to, may appear to accredit the notion of a distinction in Admiralty debts, and that payment is only made to a creditor of inferior degree conditionally on no other debts of a higher character appearing after judgment. An article of an ancient sea-law, incorporated in some editions of the Consolato, gives countenance to this construction (r). The terms of the bond are to restore the sum to be paid; "in case any person shall come in for his interest in the said sum, and pay the customary fees as taxed in the cause, and put in sufficient security to answer the action commenced in that behalf, and for his personal appearance at such times as the same shall be required, and to pay what shall be adjudged with expenses, and to bring into the registry of the court the said sum whenever the court shall order, and to save harmless the judge, registrar, marshal, and all others, officers of the court, as to the payment of the said sum."

Without help from the light thrown upon these words by the practice of the court, they would seem to justify the doubt which has been entertained. But, if the suitor elects to wait the expiration of a year and a day, before his application for payment, the bond is not required. Whatever may have been the origin of the form, its effect is not to guarantee the court and its officers against claims paramount to those pronounced for, but to guard against the possible mischief of a res having been proceeded against and adjudged, in error, as to its real ownership. This seems abundantly clear from the authorities on the practice of the Admiralty (8), in conformity with which the learned Judge of that Court observed, in a case lately decided by him, that he was "disposed to believe that the expressions in the bond applied exclusively to interests in the subject-matter, as in cases of title." The Court, in the event of its having been misled in the manner supposed, might be called upon to rescind its own decree, and takes security to enable it to do so.

(r) Ordinance of Aragon and Catalonia, A.D. 1343, Art. xxxii. Pardessus, vol. v., p. 390. 18 Les serviteurs et mariniers pour ce qui leur sera du de loyers sans qu'ils soient tenus de donner caution de rapporter, parceque personne ne peut les primer en

temps et en droits; and see The Tecumseh, 6 Notes of Cases, 668.

(8) Clarke, Prax. Car. Adm. tit. 35, 38, 39. See also a learned note to the article in the Law Magazine, No 98, p. 142, and 6 Notes of Cases, p. 666.

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

In the countries governed by the Civil Law, and in many of the States of the American Union, repairs and necessaries constitute a lien upon the ship. The same doctrine prevailed in this country down to the reign of Charles II. (t). Material men, indeed, continued to our own day to be paid out of proceeds in the registry; and the practice was upheld with a high hand by the Court of Admiralty, until condemned on the appeal of a mortgagee by the Judicial Committee of Privy Council (u). The Legislature, however, by the 3 & 4 Vict. c. 65, s. 6, has virtually supplied this defect of jurisdiction. The Court of Admiralty is by that Act empowered to decide all claims and demands for necessaries supplied to any foreign ship or sea-going vessel, and to enforce payment thereof, whether she may have been within the body of a county or upon the high seas when they were furnished. The object of the statute was to provide a remedy for the inconvenience which frequently occurred when a foreign vessel was driven upon the coasts of this country, and the master, having no credit, was under great difficulty in providing necessaries for the purpose of refitting her and of proceeding on his voyage (x). The statute confers upon the Court a jurisdiction to be employed in every lawful mode for enforcing payment; that is, by arresting the person of the owner or his property in case of necessity, and the Court will exercise this power equitably, and endeavour to protect the interests of every person having a bona fide lien upon the thing arrested, or subsequent purchasers without notice. But Dr. Lushington, in a recent case (y), drew attention to the fact that no lien is established by the Act, and desired it not to be supposed that, in pronouncing for his jurisdiction, he held in the slightest degree that a claim for necessaries, contracted for by a ship four or five years ago, could militate against subsequent owners. "I give," continued the learned Judge, "no opinion upon that point. It may be a question which I am not now bound to determine, whether a ship, having bonâ fide changed hands, could be liable to any such demand."

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

Although the writings of foreign jurists are but sparingly referred to in the cases which have been cited, it is satisfactory to observe how closely the decisions of the Court of Admiralty of England have adhered to the principles of the general Marine Law, and how slight is their variance from the positive enactments of other maritime

(t) See ante, p. 122.

(x) See the judgment of Dr. Lushington.

(u) The Neptune, 3 Hagg. 123; 2 Knapp, The Ocean, 2 W. Rob. 368. P. C. Cases, 94.

(y) The Alexander, 1 W. Rob. 294.