Law of flag governs as to validity.

As between two or more bottomry bondholders the court will marshall assets (p).

CASES.

1. A vessel on a voyage from Malta to London had to put into Port Mahon to repair. The cost of the repairs was advanced by a merchant on the security of a bottomry bond on the ship and freight. The bond amounted to 8047., including interest at the rate of 28 per cent. The ship then continued her voyage, but was again damaged. It was then repaired at Cork, the money being advanced by C. & Co. on two bonds, binding the ship, freight and cargo, but especially the ship and freight. The latter advances were, however, really made on the personal credit of the owners, and not on the ship. Held, that the bonds securing them had therefore no priority over that granted at Port Mahon (q).

2. One bottomry creditor was secured on the ship and freight, and a second on the ship and cargo. The latter was ordered to be paid out of the cargo; and so the ship and freight were sufficient to pay the former creditor (r).

§ 85.

The validity of a bottomry bond, given by a shipmaster in a foreign port, will be governed by the law of the flag (s), i. e., the law of the country to which the ship belongs. For the owner of a cargo, shipped on board a foreign vessel, is deemed to ship it to be dealt with by the master according to the law of the flag, unless the master's authority be limited by express stipulation at the time of the shipment (s).

From this it follows that a bond, given by the master, hypothecating cargo on board a foreign ship, will, if valid according to the law of the ship's flag, be enforced on the arrest of the ship and cargo at the port of discharge. This rule will not be affected by the mere fact of any

(p) The Trident, 1 W. Rob. 29, 35; see "Cases (2) at end of this §.

(2) The Rhadamanthe, 1 Dods. A. R. 201.

(r) The Trident, 1 W. Rob. 29, 35.

(s) The Karnak, L. R., 2 P. C. 505; The Gaetano and Maria, 7 P. D. 1, 137 (C. A.); 51 L. J., P. 67; 46 L. T. 835; 30 W. R. 766.

condition imposed by English law as essential to the validity of the bond not having been complied with (t).

With respect to the validity of a bottomry bond, as in Foreign judgment. other cases, the judgment in rem of a foreign competent court is conclusive. Any hypothecation made by an agent of such a court, will be valid in the absence of fraud or manifest mistake (u).

(t) The Gaetano and Maria, supra. (u) Messina v. Petrocochino, L. R.,

4 P. C. 144; Dent v. Smith, L. R.,
4 Q. B. 414.

N.

L

CHAPTER XIII.

NECESSARIES AND RANK OF LIENS INTER SE.

Material man's lien.

Admiralty

as to.

§ 86.

A SHIPWRIGHT employed to repair a ship will have a lien for repairs. But his lien is an ordinary common law lien, and differs from a maritime lien (a) in that, being a merely possessory lien, it is lost whenever he parts with the possession, and in that it never arises if the repairs are executed on credit (b). Whether or not he has a lien, a shipwright can of course bring an action against his employer to recover the price of the repairs. So a tradesman or other material man who supplies a ship with necessaries, can sue for their value. He has also a merely possessory and not a maritime lien.

Actions for repairs and necessaries are generally within jurisdiction the Admiralty jurisdiction. Thus the Admiralty Court can entertain any claim for the building, equipping or repairing a ship, if the ship or its proceeds are under arrest of the court (c). So it can try an action for necessaries supplied to a ship elsewhere than in the port to which she belongs, unless the owner or part owner be domiciled in England or Wales (d).

Where the amount claimed for necessaries supplied does not exceed 1507., or where the parties consent, the action can be tried in a county court (e). The county court, of course, has no greater jurisdiction than the High Court,

(a) See p. 148, § 87.

(b) Raitt v. Mitchell, 4 Camp. 146; Ex parte Shank, 1 Atk. 234.

(c) 24 Vict. c. 10, s. 4 (The Admiralty Court Act, 1861).

(d) 24 Vict. c. 10, s. 5.

(e) 31 & 32 Vict. c. 71, s. 3.

and therefore cannot try an action for necessaries supplied
to a British ship, whose owners are domiciled in England
or Wales (ƒ). Where a
Where a "necessaries " action in a county
court has proceeded to judgment, by which a sale of the
ship is ordered, and subsequently a material man, having a
possessory lien on the ship, commences a second action in the
High Court, and where the material man has entered an
appearance to the action in the county court, the sale will
be stayed and the county court action transferred to the
High Court, on the application of the material man (g).

With respect to necessaries supplied in British possessions abroad, the Vice-Admiralty Court of the district can hear the case, provided no owner or co-owner is domiciled within the British possession (h).

ries"-what

The term "necessaries" will include every article "Necessasupplied, which is suitable or necessary for the ship to included." prosecute her voyage (i). For instance, coals, or a screw propeller, will fall under the term (). So pilotage, towage, cables, anchors, light dues, broker's charges for entering and reporting, and for insurances of freight, are comprised in the term (7). Again, money expended in maintaining the crew (m), but not money advanced

to pay averages, falls within its scope (n).

A ship cannot be arrested in an action of necessaries Effect of a after it is sold, though the purchaser had notice of the sale on lien of material man's claim (o). On the other hand, the posses- man.

sory lien of material men will not be determined by the

(f) Allen v. Garbutt, 6 Q. B. D. 165; 50 L. J., Q. B. 141; 29 W. R. 287; The Dowse, L. R., 3 A. & E. 135; but see The Alina, 5 Ex. D. 227; 49 L. J., P. 40 (C. A.).

(g) The Immacolata Concezzione, 47 L. T. 388.

(h) 26 Vict. c. 24, s. 10; 30 & 31 Vict. c. 45.

(i) The Sophie, 1 W. Rob. 368; The Alexander, ib. 288; Mackintosh v. Mitcheson, 4 Ex. 175; The Riga,

material

Maritime liens-what.

Their rank inter se.

arrest of the ship by warrant of the Admiralty Court in an action for equipment and repair (p).

§ 87.

A maritime lien does not include or require possession, but will travel with the res into whosoever's possession it may pass. The lien, when carried into effect by a proceeding in rem, relates back to the period when it first attached. Therefore a ship, solely to blame in respect of a collision, will still be liable for the damage occasioned thereby, though she has been transferred to a purchaser without notice of the collision or of the legal proceedings (9).

The various maritime liens and charges will rank in the following order :

I. Lien for Damage.

This lien, which arises in cases of collision, will have priority over all other liens, though prior in date (r).

In the case of there being two successive collisions with the same ship, the lien of the owners of the ship injured by the first collision will have precedence over the lien of the ship injured by the second collision: for in such cases the maxim qui prior in tempore potior est in jure will be applied.

II. Liens for Seamen's Wages.

But such liens will not have priority over subsequent salvage (s).

(p) The Acacia, 42 L. T. 264— Ir. Adm.

(q) The Bold Buccleugh, 7 Moo. P. C. 267.

(r) The Aline, 1 W. Rob. 111; The Bold Buccleugh, 7 Moo. P. C. 267; The Benares, 7 Not. of Cas. 50, suppl.; The Linda Flor, Swa.

309; The Elin, 51 L. J., P. 77; and see Ch. XIV. § 91, p. 158.

(8) The Madona d'Idra, 1 Dods. 37; The Sidney Cove, 2 Dods. 11, 13; The Wm. F. Safford, Lush. 69; The Union, 3 L. T., N. S. 280; The Gustaf, Lush. 506; 31 L. J., Ad. 207.