392 LIEN, PARTLY JUS IN RE, PARTLY JUS AD REM.

forthwith made; wherefore the loan became a paramount necessity for the purpose of refitting, and the lender should be made as reasonably secure as the pledge of ship and cargo could make him. For which purpose all other liens or preferred claims must yield, or be retired and temporarily or partially suspended. As the lien for wages is the first in rank, if from necessity that is suspended, all others must be also, as matter of necessity.

For the like reason, salvage claims also may take precedence, under special circumstances, to all other preferred contract liens. The Selina, 2 Notes of Cases, 18. This is obviously just; for, unless it were so, timely and adequate salvage assistance might not be procurable; and ship, cargo, freight, and all might perish.

Generally, lien, by the common law, is a right of the party in possession to retain or hold another's property, if in his possession, until fully indemnified; or until certain demands of the former party are paid, satisfied, secured, or waived.

In strictness, lien is not a jus in re nor jus ad rem; that is, a common law lien is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing. 2 Story, 145, Ex parte John S. Foster.

The better definition would seem to be that a lien is in part a jus in re and in part a jus ad rem; it is a right in a portion of the thing, and a right also to a portion of the thing, until such right is fully liquidated. While the thing must be tangible, the right to it is felt only when the remedy for it is resorted to, which, in admiralty, is a proceeding in rem.

But maritime liens differ from the general common

POSSESSION NOT REQUISITE FOR MARITIME LIEN. 393

law lien in this; that neither actual nor constructive possession is necessary as an attribute of a maritime lien; whereas possession is an indispensable accompaniment of a general lien. When once a maritime lien. has attached to the thing, it thereafter resides in, travels with, and adheres to it until legally severed. It holds on with tenacity either to the thing or to its proceeds; and such lien, whether for wages, salvage, bottomry, or necessaries, follows the rem subjectam, indefinitely, through all its varied future transmutations or transformations. Its mode of existence is nothing; for it is immaterial whether it be imbedded in specie, exist in solido, in cash, or its equivalent, choses in action, or bills. of credit, provided they severally represent actual value and means to pay.

To constitute and continue a valid lien at common law, there is a positive necessity, which becomes an imperative duty, to retain possession; but this is not an essential element or attribute of a maritime lien.

Acquisition of property by one's own fraudulent or unlawful act or violation of duty, is not, however, such a possession as will legally sustain a lien; but in order to support it, a possession, justly obtained, is requisite. It would otherwise be simply occupation without either property or legal possession. The retention of the property after a lien has become extinguished, becomes a fraudulent possession. 2 How. 406, Randall v. Brown.

The lien for freight is rather an exceptional inchoate right. In one sense, it is a maritime lien; in another, it is not; for a lien for freight may either be parted with, or waived, by parting with the possession of the goods, merchandise, or cargo. Thus, in the Bags of Linseed (1 Black. 108), a ship-owner lost his lien as carrier, by delivery to a consignee.

394

DEFINITION OF MARITIME LIEN GIVEN

Generally, property passes, subject to the maritime lien. 13 Pet. 464, Burton v. Smith.

In the United States v. Wilder (3 Sum. 308), it was laid down as a general rule, that there was no lien against the government. To this there is at least one exception, found in a recent act of Congress respecting goods in public warehouses, which, for its importance, as applied to freight and lien, will be here inserted in full as follows: "Whenever the collector or other chief officer of the customs of any port, shall be notified in writing, by the owner or consignee of any vessel or vehicle arriving from any foreign port or place, for a lien for freight or any merchandise imported in such vessel or vehicle, and remaining in his custody, such collector or other officer is hereby authorized and empowered to refuse delivery of such merchandise from any public or bonded warehouse, or other place in which the same shall be deposited, until proof to his satisfaction shall be produced that the freight due thereon has been paid or secured; but the right of the United States shall not be prejudiced thereby, nor shall the United States or its officers be in any manner liable for losses consequent upon such refusal to deliver; and, if merchandise so subject to a lien, regarding which notice has been filed as aforesaid, shall be forfeited to the United States and sold, the freight due thereon shall be paid from the proceeds of such sale in the same manner as other charges and expenses now authorized by law to be paid thereon." Act of March 2, 1867, § 3, vol. 14, U. S. Statutes, p. 567.

But the better way, perhaps, to present a reliable definition of what a maritime lien is, will be to refer to the highest authority.

BY SIR JOHN JERVIS, ADOPTED.

395

In the Europa (Br. & Lush. 97), may be seen the view entertained by Dr. Lushington, who adopts with deference the language of the Judicial Committee of the Privy Council, as prepared by Sir J. Jervis, and reported in full in the case of the Bold Buccleuch (7 Moore P. C., 284). After premising that maritime liens do not "include or require possession," he adds, that this lien "is the foundation of the proceeding in rem, a process to make perfect a right inchoate from the moment the lien attaches; and whilst it must be admitted, that where such lien exists, a proceeding in rem may be had, it will be found equally true that in all cases where a proceeding in rem is the proper course, there a maritime lien exists, which gives a privilege or claim upon the thing, to be carried into effect by legal process.

"This claim or privilege travels with the thing, into whosesoever possession it may come.

"It is inchoate from the moment the claim or privi lege attaches; and, when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached.

"This rule, which is simple and intelligible, is, in our opinion, applicable to all cases.

"It is not necessary to say, that the lien is indelible, and may not be lost by negligence or delay, where the rights of third parties may be compromised; but where reasonable diligence is used and the proceedings are had in good faith, the lien may be enforced, into whosesoever possession the thing may come."

But, if not precisely correct to speak of the indelibility of liens, when other persons or parties may be injuriously affected by such attribute, it is quite certain that a maritime lien, as has been before stated, is invested 1 Vide pp. 129-130.

396 LIEN ON SOLD SHIP FOLLOWS THE PROCEEDS.

with these several qualities. It is universal, inalienable, inextinguishable, unassignable, and remains attached to the thing, until legally discharged.

Besides the liens for salvage, bottomry, pilotage, towage, and wages, which, though tacit, are tenacious, and the qualified or exceptional lien for freight, which sometimes attaches, there may be still other liens, either implied by law, or created by the acts of persons presumed to be authorized to fully represent the parties interested, as masters or other agents of the owners of ship or cargo, or charterers.

Thus, a master. under an invincible necessity, occasioned by stress of weather or sea damage, might resort to his implied authority for procuring necessaries or repairs, to refit and enable the ship to pursue her voyage. In doing this, he may subject both ship and cargo to a lien for the liability so incurred, although it would obviously be more regular to effect a loan by bottomry or hypothecation. And whenever such lien once attaches to a thing, it permanently resides in or with the thing; unless, by sale or otherwise, the thing itself shall have thereby assumed a new form of legal existence; in which case, the lien glides or travels along with such new form, and attaches to the proceeds. Thus, by the sale of a ship, under a legal necessity, in a foreign port, a legal lien on the ship would thereby be legally transferred from ship to proceeds. Again vide The Amélie, 6 Wall. 18, and cases cited.

For those maritime liens, which are created by a peculiar emergency and dependent upon special circumstances, it would be difficult to prescribe any precise and general rule. They must be necessarily of a shifting and variable description and character. The adjudged