lien. 2 Act of 1861, have their origin in the Customs of the Sea, and Perhaps the most important part of the purely maritime jurisdiction of the Admiralty Division is to be found in the doctrine Maritime of maritime lien. This, which is unknown to the common law, and is quite distinct from an ordinary possessory lien, is a right to enforce by legal process a claim against the res or thing itself, which is either the cause of injury in cases of collision, the object saved by salvors, the vessel on which service has been performed by mariners, or the security for a bottomry bond. It has been judicially defined as "a claim or privilege on a thing to be carried into effect by legal process." If, therefore, a ship has been wrongly injured by another ship, the owner of the first ship has from the date of the collision a lien upon the latter for the amount of damage which he may have sustained. The lien extends to the whole of the ship whilst she remains entire, and to all parts of her if she should be wrecked and broken to pieces." 1 Black Book of the Admiralty, III., p. 92; The Customs of the Sea, Arts. xviii., xix., xx. Extent of the lien. 6 2 Les Costumes D'Oleron, Art. 3, Black Book, II. 213. 3 Black Book, IV., 13; La Tabula de Amalfa, Art. 1314, et seq. 4 The Neptune, 3 Hagg. 135; The Saxonia, Lush. 410; 31 L. J. Ad. The Patria, L. R. 2 Ad. 436 (461); 41 L. J. Ad. 23; The Eliza Cornish, 1 Spk. 36. 201; 5 There is no maritime lien in respect of general average claims: The North Star, Lush. 45. 6 The Bold Buccleuch, 7 Moo. P. C. 267; 19 L. T. 235. 7 The Neptune, 1 Hagg. 238; The Reliance, 2 W. Rob. 19; The Bold Buccleuch, 7 Moo. P. C. 267; 19 L. T. 235. The appurtenances of a ship are subject to this lien these include not only the ordinary fittings of a vessel, such as the sails and rigging,' but also those things which are required for any regular but special service, such as the lines and nets in a fishing boat; as well as accretions in value arising from repairs done subsequent to the inception of the lien by the owner at his own expense, but not those executed by another person on the strength of a bottomry bond on the ship. The lien also covers the whole of the freight which has actually accrued, that is the gross freight, less proper deductions, or deductions which may have been reasonably agreed on between the shipowner and the cargo owner, such as a sum in respect of a part of the voyage not completed at the time when the ship was arrested.* The date of the arrest is in fact (subject to the exception which will be pointed out) the time up to which the freight which is affected by the lien must be calculated; thus where by one charterparty a ship was to proceed from A. to B. with a cargo, and by another made almost contemporaneously was to proceed to B. and there load a cargo and sail to C., and a collision occurred on the outward voyage, the freight payable in respect of the cargo carried from B. to C. was held subject to the lien arising from the collision on the outward voyage. It naturally follows, therefore, if part of a cargo has been removed before the arrest of the ship, that the freight in respect of the whole is liable to contribute to the claim out of which the lien arises." 5 This liability to the process of the Court which we are now discussing affects not only the original owners of a ship, but those into whose possession it may come subsequent to the date when the lien arises, for it travels with the ship into whatsoever hands she may fall, even into those of a bona fide purchaser 1 The Alexander, 1 Dods. 278; The Mellona, W. Rob. 7. 2 The Dundee, 1 Hagg. 104. 3 The Aline, 1 W. Rob. 111. 4 The Leo, Lush. 444; 31 L. J. Ad. 75; The Orpheus, L. R. 3 Ad 348; 40 L. J. Ad. 24. 5 The Orpheus, L. R. 3 Ad. 348; 40 L. J. Ad. 24. The Roeclif, L. R. 2 Ad. 363; 38 L. J. Ad. 56. Lien may be lost through want of diligence in enforcing it. The enforce ment of without notice of this burden.' There is an exception, however, in regard to freight, for a new owner has been held not to be under any liability as regards freight already earned by the ship, since it would be obviously unjust that he should be expected to be bound in regard to freight which the previous owner may have received. But this lien will not be enforced by the Court if due diligence has not been shown by the person in whom the right exists in pursuing his claim. What is or is not due diligence must largely depend on the circumstances of each particular case. It has, however, been defined as "not the doing of everything possible, but the doing of that which under ordinary circumstances and with regard to expense and difficulty could be reasonably required." Again, a delay by which the interests of third parties were injuriously affected would certainly cause the Court to look with less favour on the enforcement of a claim than one which only affected the interests of those who owned the ship at the time when the lien began.* For the purpose of enforcing the lien on the freight, the cargo can be arrested in respect of that which is due for its carriage." The destruction of the subject-matter of the lien necessarily extinguishes it, as does also the acceptance of a sum whether paid by cash or bill in respect of the claim, or of bail, which is a substitute for the ship. A sale of the ship under the authority of the Court has a similar effect, since here the proceeds of the sale take the place of the vessel. The arrest of a ship which belongs to a company against which a winding-up order has been issued in the Chancery maritime Division, consequent upon a maritime lien, is void under sec. 163 of the Companies Act, 1862. But the claimant should take out a summons in the Chancery Division asking that the property subject to the lien may be realised or security given for liens in the winding up of companies. 1 The Charles Amelia, L. R. 2 Ad. 630. 2 The Mellona, 3 W. Rob. 7. The Europa, 2 Moo. P. C. N. S. 1; Br. & L. 89. The Bold Buccleuch, 7 Moo. P. C. 267 (285), 19 L. T. 235; The Roya Arch, Swa. 269 (285). 5 The Leo, Lush, 441. 6 The William Money, 2 Hagg. 136. 7 The Kalamazoo, 15 Jur. 886. the amount alleged to be due. If there are other parties interested, as mortgagees in possession, over whom the Court in the winding up has no jurisdiction,' the proper course is to obtain leave from the Chancery Division to proceed in the Admiralty Division against the ship, if the measures above mentioned are insufficient to protect his interests.2 property of from the Court. Whilst treating of the jurisdiction of the Court it must be Exemption pointed out that ships or other public property of a state, used for of public public purposes, are free from the authority of the Admiralty, or a state any other municipal tribunal. This immunity arises as a consejurisdic quence of the absolute independence of every sovereign authority tion of the and of the international comity which induces every sovereign state to respect the independence of every other sovereign state. It was at one time considered that this immunity from municipal jurisdiction was the privilege only of ships of war, but there can be no question since the elaborate judgment of the Court of Appeal in The Parlement Belge, in which all the authorities on this point are carefully examined, that the exemption is not so narrow, but applies to all the public moveable property of a state which it possesses for public purposes. Further, it appears clear that as soon as a ship is declared by the authorities of a state to be public property which is used for public purposes, such a declaration cannot be submitted to a judicial inquiry, but from international courtesy must be considered as binding on the municipal tribunals, and as ousting their jurisdiction. It is on this same principle that the Admiralty Division will enforce a judgment given against a ship in a foreign country by entertaining an action in rem, but the decree of the foreign Court must, in order to give the Court jurisdiction in such an action here, have been clearly given against the res.* 125 & 26 Vict. c. 89, s. 163. In re The Australian Steam Navigation Co., Ex parte Baker, 20 L. R. Eq. 525; 44 L. J. Ch. 676; In re The Rio Grande Do Sul Steamship Co., L. R. 5 Ch. D. 282; 46 L. J. Ch. D. 277. 3 The Parlement Belge, L. R. 5 P. D. 197; 42 L. T. N. S. 273; The Constitution, L. R. 4 P. D. 39; 48 L. J. Ad. D. 13; The Charkich, L. R. 4 Ad. 59; 42 L. J. Ad. 17. The City of Mecca, L. R. 5 P. D. 28; 49 L. J. Ad. D. 17; 6 L. R. P. D. (C. A.), 106; 50 L. J. Ad. D. 53. The judge and officers miralty Division. The Admiralty Court also exercises a limited equitable jurisdiction. It is influenced by equitable considerations, but will not invoke matters foreign to the direct issue-in fact, as between the immediate parties and for the immediate purpose before it, the Court has always been willing to be guided by reasons of equity. An example of this equitable jurisdiction may be seen in the recent case of The Empusa, where it was held that shipowners whose vessel was lost in a collision, and to whom a certain sum was awarded in the limitation of liability action which followed in respect of a loss of freight, were equitably bound to pay over a portion of such sum to a bondholder who had advanced a sum on the security of the freight." the Judicature Act of 1873 has necessarily, by constituting the Court of Admiralty a portion of the High Court, enlarged its equitable jurisdiction, just as it has done that of the Common Law Courts.3 But The division, so far as Admiralty business is concerned, conof the Ad- sists, first of all, of a judge, who is now an ordinary judge of the High Court, appointed by letters patent from the Crown, and who, whenever the next vacancy which occurs is filled up, will have to take his share in the general judicial business of the High Court." There is, next, the registrar, who is appointed by the judge, and who, in addition to the important judicial duties which he performs in interlocutory applications, and in cases referred to him to ascertain questions of account, acts also as taxing master. In addition there is a deputy-registrar and the chief clerk and his subordinates. Another important official is the marshal and serjeant-at-mace, to whom is intrusted, by himself, his deputies or subordinates, the duty of arresting ships or cargoes; of keeping 1 The Juliana, 2 Dods. 504; The Don Francisco, Lush, 468; 31 L. J. Ad. 14. 2 The Empusa, L. R. 5 P. D. 6; 48 L. J. Ad. D. 36. 3 J. A. 1873, s. 24. 4 J. A. 1873, s. 5. 5 J. A. 1875, s. 8. 6 J. A. 1873, s. 77; J. A. 1875, s. 8; 3 & 4 Vict. c. 66. The registrar of the Admiralty Division also acts as the registrar of the Court of Appeal in Admiralty actions. |