229 CHAPTER III. OF THE POWER OF THE MASTER OVER THE SHIP, CARGO, AND In the preceding Chapter we have considered the authority of the master to bind the persons of his owners for the necessaries of the ship. The subject of the present Chapter will be, the manner in which the ship, freight, and cargo, may be bound, and the authority of the master to give an obligation upon the ship itself; or, in other words, to hypothecate or alienate the vessel; or to sell or pledge the cargo or freight, in part, or whole. We shall consider the title under the three heads; first, Whether a ship can be the subject of a specific lien. Secondly, Under what circumstances the master may hypothecate the ship, freight, and cargo; and, thirdly, How far he may sell or alienate the ship, freight, and cargo in part, or altogether. I. And, first, with respect to the point, how far a ship may be of a lien upon the subject of a lien. a ship. It has already been said, that ships cannot be the subjects of a specific lien to the creditors who may supply them with necessaries. There is a two-fold reason for this; in the first place, because lien always presumes the possession of the article by the creditor; and, therein, his power of holding it till his demands are satisfied;—but in the case of a ship, such possession by those who supply it with necessaries cannot occur. For, as regards the master, he is possessed only as the agent and servant of his owners. And as regards those whom he may employ to repair the ship, they have manifestly no other possession, than his workmen; no other possession, for example, than a builder or carpenter employed to build or repair a house. The other reason why ships are not the subjects of such specific liens is, that it would open the door to the manifest mischief of commerce, and would be an impediment to the most valuable article of public and private property, if either the master for any stores supplied by himself, or any of the dealers with the ship, could arrest the departure of the vessel for accounts afterwards litigated, or of small amount, Under these principles, therefore, the law of England rejects almost wholly the doctrine of lien as regards ships. If a shipwright, indeed, take a vessel within his own docks, or entirely within his own possession, to repair it, he may of course detain such ship till his demand be satisfied, provided he has done nothing inconsistent with the exercise of the right of lien; that is, provided there be no special contract for credit, or custom of trade postponing payment; in the same manner as any other artificer may detain the subject of his own trade under the same circumstance. But if he be not in actual possession of the vessel; if it should have quitted his dock, or if he shall have made his repairs without taking the ship into his own mastership and dominion, such shipwright is not preferred by the law of England before other creditors, nor has he any lien upon the vessel merely as its repairer, nor even as its builder. II. Thus, in two early cases Rich v. Coe, (a) and Farmer v. Davis, (b) Lord Mansfield having expressed himself in the general terms, "that a person, who supplies a ship with necessaries, has not only the personal security of the master and owners, but also the security of the specific ship," Lord Kenyon, in the case of Westerdell v. Dale, (c) took occasion to restrict the general application of this opinion. He observed, “In Rich v. Coe, it was said, that the person supplying a ship with necessaries has a treble security; the person of the master, the ship, and the personal security of the owners: but I doubt whether that doctrine is not too generally laid down. Sir J. Jekyll held, in a case before him, that the master could not subject the ship if in England; and that was afterwards confirmed by Lord Hardwicke." This doctrine, indeed, had been previously affirmed by the courts in the two cases of Hoare v. Clement, (d) and Justin v. Ballam. (e) In the first of these cases, Clement having supplied the ship with necessaries in an English port, and the ship being afterwards sold to Hoare before his bill was paid, he instituted a suit in the Court of Admiralty against the persons, who were master and owner at the time of the supply, and also against the ship and Hoare himself. Under these circumstances, Hoare applied to the Court of King's Bench for a prohibition against the Court of Admiralty, to stay the proceedings against him and the ship, which was granted. In Justin v. Ballam, Ballam had instituted a similar suit in the Admiralty against a Norwegian ship, for payment of the price of a cable and anchor delivered on board the ship to the master, in the River Thames, upon which (a) Cowp. 636. (d) 2 Show. 338 (e) Salk. 34. 2 Lord Raym. 805. Ballam. Justin applied to the Court of King's Bench for a prohibition. Of lien on ships. The court decided, that the ship was not liable to the suit; first, Because it did not appear that the ship was in her voyage, when she became in distress for want of a cable and anchor, and at the Justin v. time of the contract; secondly, Because there was no actual hypothecation; and they said that although, by the maritime law, every contract with the master of a ship implied an hypothecation, yet it was otherwise by the law of England, unless expressly so agreed. And again, in Watkinson v. Bernardiston, (a) where the proceeds of a ship sold had been brought into Chancery, and the plaintiff, who was the master, claimed money paid by him for the accounts of several tradesmen in London, employed upon his order, to make repairs, and find necessaries, Sir J. Jekyll, decreed, that this demand was not a lien on the ship. Sir J. Jekyll, indeed, added in the same decree, that if the demand of the master had been for wages paid by him to the mariners, and for money disbursed by him on the ship's account in the course of a foreign voyage, it would have been a lien on the ship. But this part of his opinion has been expressly overruled in the case of Hussey v. Christie and Others. (b) In this case, Hussey, the Hussey v. master of a ship, had employed several persons to provide her in Christie. necessaries abroad; and given his own promissory notes for their accounts. Upon returning to England, and finding his owners bankrupts, he endeavoured to retain possession of the ship as his lien and security. Being forcibly deprived of her by the assignees, he instituted this suit in the Court of Chancery to restrain them from selling the ship till his demands should be paid. The Lord Chancellor sent the case to the Court of King's Bench, where the judges all concurred in opinion, that the master had not a lien on the ship. (c) In two other cases before Lord Hardwicke, in Buxton v. Snee, (d) and ex parte Shank and Others, (e) he Buxton v. Snee, made his decrees upon the same principle. In the first case he and ex parte said, "I know no case where the repairs, &c. whether they were by part-owners, or sole owner, masters or husbands, have been held a charge or lien on the body of the ship." In the latter case, he said, that although the law of Holland gave a person, who repaired a house or ship, a specific lien, there was no such law in England. The last case, indeed, was particularly strong; the person who claimed the specific lien, as having repaired the ship, having obtained possession of the money upon the bankruptcy of the owner. Shank. Of lien on ships. Of the shipwright's lien. Raitt v. And in the case of Wilkins v. Carmichael, (a) where, upon the bankruptcy of the owners, the master claimed to retain the ship as a lien for his wages and repairs, &c. for which he made himself answerable, Lord Mansfield himself said, "As to the stores and repairs, it is a strong answer to the claim, that, when the demand was made by the assignees, the master had not paid. But if there were any lien originally, it was in the carpenter; the master could not, by paying him, be in a better situation than his, and he had parted with the possession, so that he had given up his lien, if he ever had one. The other creditors had none. Work done for a ship in England is supposed to be done on the personal credit of the employer. In foreign parts the master may hypothecate the ship."(b) III. Upon all these cases, it may now be considered as an established rule of law, that neither the master, nor any of those dealing with a ship for repairs and necessaries, can have any specific lien on the ship; except in the case of a shipwright or other artificer having actual and entire possession of the vessel, in dock; in performing his work, and retaining possession till payment. IV. And even in the circumstance of a shipwright having the vessel in his own dock, the existence of a custom in the port or country, that such shipwright shall only look personally to the owners, will take a ship out of the ordinary rule of goods in the actual possession of the workman claiming a lien; and will prevent such shipwright from having, even in this strong case, any lien upon the vessel. This is, indeed, the custom in the river Thames, and of course applies to all ships repaired in the docks in this river. Thus in Raitt v. Mitchell. (c) In this case, the defendants were shipwrights, and had a dock in the river Thames. The plaintiff having purchased an East Indiaman called the Ocean, delivered her to the defendants to be repaired; and she was plaeed in their dock for that purpose. Nothing whatever passed between the parties with respect to the time or manner in which the repairs were to be paid for, until two months afterwards, when they were completed. The plaintiff having then required that the ship should be delivered back, that she might proceed on her voyage to the East Indies, the defendants insisted that she should not leave their dock till security was given for the repairs, which amounted to about (a) Doug. 101. (b) See likewise Wood and Others v. Hamilton, in Dom. Prac. 1709, reported in substance, Abbott, 140. (c) 4 Campb. 146. See also the re cent decision of Franklin v. Hosier, 4 Barn. and Ald. 341. And the opinion of the Lord Chancellor in ex parte Bland, 2 Rose, 91. ships. Raitt v. 3000%. The plaintiff, protesting against the defendant's right to Of liens on detain the ship, brought this action which was in case, with a count in trover. On the part of the plaintiff it was proved, that by the usage of trade in the river Thames, where there was no express Mitchell. agreement as to the time of payment, the shipwright invariably gave credit for repairs to the owner of the ship repaired; and that Custom as to the credit varied in different trades. That it was generally fifteen ships in the the repairs of months; and with respect to East India ships, eighteen months: river Thames. but that, without a previous stipulation for that purpose, neither ready money payment, nor security, was ever required. On the part of the plaintiff, it was contended, that under no circumstances did there exist a lien for ships, even when there was to be a payment in ready money. The defendants, contrà, insisted, that it was an established principle, that an artificer had a lien on any chattel upon which he bestowed his labour in the course of his trade; and that there was no reason why this right of lien should not extend to a ship in the dock of a shipwright. That there appeared to be no real difference between a ship in the dock of a shipcarpenter, and a coat in the workshop of a tailor. Lord Ellenborough, "I am of opinion that in this case the defendants had no right to detain the plaintiff's ship. It is distinctly proved that where there is no express stipulation for a ready money payment, credit is invariably given by shipwrights in the river Thames. The period of credit varies in the different trades in which ships are employed but in each trade it appears to be uniform; and for the repairs of an Indiaman, we are told it is eighteen months; at the expiration of which time it is expected they shall have returned from their voyages, and put funds into the hands of their owners by the freight they have earned. This being the invariable usage, I must consider it as the basis of the contract between these parties; and their respective rights and liabilities are precisely the same as if, without any usage, they had entered into a special agreement to the like effect. A lien is wholly inconsistent with a dealing on credit; and can only subsist where payment is to be made in ready money, or there is a bargain that security shall be given the moment the work is completed. I do not say that a shipwright has not a lien on a ship in his dock, where he is to be paid in ready money as soon as the repairs are finished. On the contrary, I am inclined to think that he has a lien like other artificers. But there can be no lien without an immediate right of action for the debt, and that does not accrue till the period of credit has expired." A verdict was given for the plaintiff. V. Since the decision of this case, the Lord Chancellor has also determined that a ship, whilst possession is retained, is specifi |