Claims for building,

has been given to the person who supplied them in respect of his claim, the latter is merged in the claim under the bond, and any action should be brought in respect of the bond, and not of the necessaries, which would be irregular.'

If the claim is one for building, equipping, or repairing equipping, a ship, that is, for work done on the ship, and not for or repair things supplied for it, she must, when the cause was ining a ship. stituted, have been under the arrest of the Court in order to give it jurisdiction.2

As shipwrights have at common law a purely possessory and passive lien upon a ship or article on which their labour has been expended, which from its nature can only be enforced by retaining possession of the thing on which the work has been done, and as the effect of the statutory law is merely in a certain event to give them a right to sue in the Admiralty Division, it is important if a suit be instituted against a ship that they should, in order to have any priority to mortgagees, be in actual de facto possession of the ship at the commencement of the action. The Court has, however, compelled a person with a possessory lien to relinquish it, but whilst so doing it will protect his interests.5 And it is also to be remarked that if a

master pays off a material man, or another person advances money for the purpose, the master would have a claim against the ship for disbursements, or the person who advanced the money for necessaries.

The County Courts have jurisdiction over claims up to £150 for necessaries.7

1 The Elpis, L. R. 4 Ad. 1; 42 L. J. Ad. 43.

2 A. C. Act, 1861, s. 4.

3 The Thames Ironwork Co. v. The Patent Derrick Co. 1 John. & H. 93.

The Scio, L. R. 1 Ad. 353.

The Harmonie, 1 W. Rob. 178.

6 The Albert Crosby, L. R. 3 Ad. 37.

7 32 & 33 Vict. c. 71, s. 3.

CHAPTER VI.

POSSESSION, CO-OWNERSHIP, AND ACCOUNTS.

diction of

THE jurisdiction of the Admiralty Division in actions of The jurispossession is exercised for a fourfold purpose: (1) to place the Court. claimants in possession of, (2) or of the earnings of ships to which they may be entitled; (3) to enable a ship to be employed; (4) to examine accounts between co-owners, and to apportion the earnings after such examination.1 In all these cases, if necessary, the Court can order the vessel the subject of dispute to be sold; but it is very reluctant to do so at the instance of part owners who do not possess a majority of shares. But, where one plaintiff had agreed to become a part owner, and other plaintiffs also part owners, provided the first plaintiff was appointed master, and he was, after being so appointed, wrongfully dismissed, the Court considered that the defendants had acted so inequitably that, after giving them the option of purchasing the plaintiff's shares at a valuation, an order was made that the ship should be appraised by the marshal and sold. Moreover, since all questions as to the title to or ownership of any vessel, or to the proceeds thereof, in the registry, fall within the jurisdiction of this Division, this power of sale is of peculiar use in actions of possession.3

1 A. C. A. 1861, s. 8. The first two divisions chiefly embrace disputes between rival claimants; the third and fourth, disputes between co-owners.

2 The Nelly Schneider, L. R. 3 P. D. 152; 4 Asp. M. C. N. S. 54, 3 3 & 4 Vict. c. 65, s. 4.

Foreign vessels.

Possession given in

order to

employ ship.

But, as regards foreign vessels, though the Court possesses the same jurisdiction derived from its original powers as a maritime Court, yet it will not interfere in questions touching the ownership of foreign vessels, unless with the consent of the parties to the dispute, or of the representative in England of the foreign state to which the ship belongs, and even then with some reluctance.1

Whether a claimant is or is not entitled to the possession of a ship or her earnings, depends wholly upon the facts of each particular case, and the principles of law applicable thereto. A discussion of these principles is quite without the scope of this work, since they concern every branch of law: thus, the right to possession of a vessel may turn upon the question of fraud or no fraud in a sale, as in the recent case of The Horlock, which depended on the effect of a fraudulent bill of sale, a matter which involves doctrines of the most general description.

Equitable claims and equitable defences are recognised by the Court; but a distinction has been drawn between the recognition of equities after it has been set in motion by persons claiming legal rights, and allowing its procedure to be used to enforce equities in the first instance.3

The Court will decree possession of a ship to the owners of the majority of the shares in her, even if the owners of the minority are willing to give security to the owners. of the majority, in order that she may be employed for the purpose for which she was built, that is to say, to navigate the seas, not to lie at home unused. But at the same time it will compel those to whom possession is

1 The See Reuter, 1 Dods. 24; The Martin of Norfolk, 4 C. Rob. 293; The Evangelistria, L. R. 2 P. D. 241; 35 L. T. N. S. 410; The Agincourt, L. R. 2 Ad. D. 239. The Court refused to interfere when a British part owner of a foreign vessel moved to arrest it, to obtain bail for safe return: The Graff Arthur Bernstorff, 2 Spk. 31. 2 The Horlock, L. R. 2 P. D. 243; 47 L. J. Ad. 5.

11;

8 The Victoria, Swa. 408; The Rose, L. R. 4 Ad. 6; 42 L. J. Ad. and see J. A. 1873, s. 25, sub-s. 11.

The Elizabeth and Jane, 1 W. Rob. 278; The Kent, Lush. 495.

restraint.

allowed to give security to the minority to the amount of their interest.1 To enforce this security the minority Action of must bring an action of Restraint to prevent the ship from proceeding to sea until security is given by the other coowners, to the extent of the plaintiff's interest, for her safe return, to effect which the vessel may be arrested, and a bond entered into payable in default of the return of the ship from her voyage. But the minority, since they do not contribute towards the expenses of the voyage, cannot share in its profits.3 Owners who do not appear as plaintiffs in such actions are presumed to be content with the possession or occupation of the vessel, and to acquiesce in an application for a sale of which notice has been given them.5

2

between Co-owners.

The Court will order accounts to be taken, either as a Accounts step in an action or in a suit having the taking of accounts for its sole object, but they will not be investigated to a later period than the date of the issuing of the writ in the action. The Court also will apportion and allot the shares to which claimants may be respectively entitled, or order the ship to be sold and the proceeds divided, or the freight to be brought into Court for the purpose of division and it often seeks to end disputes between co1 The Apollo, 1 Hagg. 306.

8

2 Houston v. Hebden, 1 Wils. 101; The Apollo, sup. A mortgagee, unless in possession, will not be allowed to bring an action of restraint against the will of a charterer: The Innisfallen, L. R. 1 Ad. 72; 35 L. J. Ad. 110; and a motion before the judge for an order to this effect is probably as effectual as an action of restraint.

3 An. 2 Ch. Ca. 36.

The Valiant, 1 W. Rob. 64. When a managing owner did not appear to an action in rem, the Court added him as a defendant under Order XVI., r. 13, but deferred making any order for the sale of the vessel until after the reference and investigation of his accounts: The Native Pearl, 37 L. T. 542; 3 Asp. M. C. 515.

5 The Albion, 6 L. T. 164;

The Idas, Br. & L. 65.

Asp. M. C. (O. S.) 206.

7 The Eider, 40 L. T. 463; 4 Asp. M. C. 104.

8 The Meggie, L. R. 1 Ad. 77. The Court has power to order the sale of a ship the property in which becomes by death or marriage vested in a person not qualified to be the owner of a British ship: A. C. A. 1861, s. 12; M. S. A. 1854, ss. 62, 63, 64, 65.

Restitution of

ships or goods seized by pirates.

owners by giving the majority the option of buying the shares of the minority at a valuation, so as to prevent the necessity for a sale of the ship. The Court has jurisdiction over the interests of persons who are not coowners at the time of the commencement of the action, if it arises out of a previous co-ownership in which they were concerned.1 Its jurisdiction is exercised as liberally as possible; thus, in an action for a sale of the ship and an investigation of the accounts, the Court has allowed a counterclaim for damages alleged to have been sustained by the defendant co-owners by a wrongful act of the plaintiffs in the management of the ship to be investigated. And when a master, who was a part owner, was suing for his wages, the defendants were allowed to set up a counterclaim in respect of the co-ownership accounts, and to have them investigated in the action for wages.3 The Court will also, if necessary, appoint as receiver some independent person.*

When goods have been piratically seized and afterwards recovered, the Court will order their restitution to their original owners if they apply within a reasonable time, even though they may have come into the hands of a third person.5

And, if the ship of a pirate has been transferred to a bona fide purchaser for valuable consideration, and has not been taken by the pirate from other persons, it will, if seized by the Crown, be restored by an order of the Court to such purchaser.

1 The Lady of the Lake, L. R. 3 Ad. 29; 39 L. J. Ad. 40.

3

The Ceylon, 18 L. T. N. S. 417.

The City of Mobile, L. R. 4 Ad. 191; 43 L. J. Ad. 41.

4 The Ampthill, L. R. 5 P. D. 226.

5 Bacon's Abridgment, art. Piracy, vol. vi. p. 173, 7th ed.; The

Hercules, 2 Dods. 253.

6 The Telegrapho, L. R. 3 P. C. 673; 40 L. J. Ad. 18.