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III. Liens for a Master's Wages and Disbursements on Ship's Account (t).

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

If the master be also a part owner, and order necessaries, the claim of the material man will have precedence of the master's claim for wages or disbursements (x). Further, the master may lose his lien by voluntarily accepting a bill of exchange on his owners (y). On the other hand, he, though a part owner, will have a lien on freight for his disbursements, made by him to enable the ship to earn it (x).

Where a shipmaster has by a bottomry bond bound himself, as well as the ship and freight, his lien for wages cannot be enforced as against the claim of the bondholder (a).

IV. Liens for Salvage, Towage, Pilotage, and Bottomry Bonds.

Such liens will be payable pari passu, except that bottomry bonds given subsequently to the performance of salvage, towage, or pilotage services, will have priority over any liens for such services; though they will not if given previously (b).

V. Lien for Repairs.

The shipwright will have a lien for the cost of the repairs, but only subject to all other liens then existing on the vessel (c). However, for repairs done after the

(t) The Jonathan Goodhue, Swa. 524; The Mary Ann, L. R., 1 A. & E. 8.

(u) The Gustaf, Lush. 506; 31 L. J., Ad. 207.

(x) The Jenny Lind, L. R., 3 A. & E. 529.

(y) The Wm. Money, 2 Hagg. 136.

(z) Bristow v. Whitmore, 31 L. J.,

Ch. 467; The Feronia, L. R., 2
A. & E. 65.

(a) The Jonathan Goodhue, Swa.

524.

(b) The Selina, 2 Not. of Cas. 18; The Gustaf, Lush. 506; 31 L. J., Ad. 207; see Ch. XII. § 84, p. 143.

(c) The Gustaf, Lush. 506; 31 L. J., Ad. 207; The Wasp, L. R., 1 A. & E. 367.

To what a lien extends.

Foreign judgments as to liens.

Priority lost by laches.

Marshalling assets.

arrest of the ship, the shipwright will have priority over a
bottomry creditor (c).

VI. Solicitor's Lien.

The solicitor will have priority over claims for necessaries supplied after the institution of the action, but not over claims for necessaries supplied previously (d).

$ 88.

A maritime lien on a ship for the purposes of the ship will impliedly extend to freight (e), and a similar lien on cargo will include both the ship and freight (f), the proceeds of which must be exhausted before the cargo can be resorted to by the creditor.

A maritime lien, if once discharged, cannot be revived (g).

Maritime liens declared by a foreign court to exist will be enforced. But it must appear from the proceedings of the foreign court, that the object of the foreign action was the sale of the ship and not a personal remedy against the owners or master (h).

Questions as to the precedence of maritime liens and charges will be determined by the lex fori, and not by the law of the flag (i).

The priority of a lien may be lost as against other claimants against the same res, through laches or want of due diligence in enforcing it (k).

The court will, in the case of competing claimants, marshal the assets within its control so as to satisfy all of them, as far as possible. But to protect a bottomry

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creditor, the court will not leave the seamen to their common law right of action against the shipowners and the master personally for their wages, and deprive them of their lien, even when the owners and master are perfectly solvent (7).

Again, as between two or more defendants liable for the same claim, the court will apportion their liability if such a proceeding be practicable without injuring the creditor. Thus, where the assignee of the freight shares in the benefit, the shipowners will not be held liable for the whole claim (m).

(1) The Arab, 5 Jur., N. S. 417.

(m) The Dowthorpe, 2 Not. of Cas.

264.

CHAPTER XIV.

COLLISION.

Liability for collision.

§ 89.

WHERE two ships belonging to different owners come into collision, without the fault of the crew of either vessel, as where the collision is caused by inevitable accident or ris major, e. g. a storm, the owner of each vessel must bear any damage his vessel sustains, the owner of the other vessel not being liable at all (a). The mere fact of one ship striking or going foul of another will not make her owners liable there must be want of due diligence or skill, or some other fault (b). The skill or diligence required is ordinary and not extraordinary (c).

If the collision were occasioned through the fault of both vessels, the loss sustained by each vessel must be apportioned between their owners. Thus, the owner of one of the colliding vessels will be liable for half the loss sustained by the other (d).

If the collision be caused by the act of the injured party alone, he must bear the loss, and the other is not liable (a).

If the collision were due entirely to one vessel, the owner of the injured vessel can recover full compensation for the damage from the owner of the former (a); subject to the provisions of the statutes which limit the liability of ship

(a) Per Lord Stowell, in the case of The Woodrop-Sims, 2 Dods. 83; recognized by House of Lords in Haye v. Le Neve, 2 Shaw, Scotch Ap. Cas. 395; The Buckhurst, 6 P. D. 152; 51 L. J., P. 10; 46 L. T. 108; see "Cases" (2) at end of this; The Douglas, 7 P. D. 151.

(b) The James Watt, 2 W. Rob. 270, 278; The Independence, 14 Moore, P. C. 103; Sills v. Brown,

9 Car. & P. 601.

(c) The Thos. Powell v. The Cuba, 2 Mar. Law Cas., O. S. 344.

(d) Ib.; China Merchants' Steam Navigation Co. v. Bignold, 7 App. Cas. 512; 51 L. J., P. C. 92; 47 L. T. 485; The Fanny M. Carvill, 2 Asp. M. C. 565; The Energy, L. R., 3 A. & E. 48; The Milan, Lush. 388.

owners (e). Thus, he can recover compensation for the loss of a charterparty (e) or of freight in consequence of the collision (ƒ).

If both vessels have been guilty of negligence, but one of them could, by the exercise of ordinary care, have avoided a collision, the blame will be attached solely to the latter, unless the other vessel infringed some one or other of the statutory provisions for the prevention of collisions (g). The fact that the collision would not have occurred, but for the fault of a third ship, will be no ground of defence.

In cases where a vessel could pursue one of two courses, and she elects the hazardous, and not the safe, course, she will be liable for the consequences thereof (h). Unnecessary alteration of the course of a ship, or her carrying wrong lights, will make her alone to blame for a collision caused thereby (i).

Even where a collision is caused by a vessel drifting, through being unmanageable or disabled, she will be held to blame if her condition were occasioned by the negligence of her crew, or by a previous collision for which she was to blame (j). in the case of a collision abandoned (k).

(e) See § 93, p. 162, post.

(f) The Consett, 5 P. D. 229; 49 L. J., P. 24; 42 L. T. 33; 28 W. R. 307 (C. A.); see "Cases" (5) at end of this; The Star of India, 1 P. D. 466.

(g) 36 & 37 Vict. c. 85, s. 17; The Englishman, 3 P. D. 18; see "Cases" (6) at end of this §; Tuff v. Warman, 5 C. B., N. S. 573; Greenland v. Chaplin, 5 Ex. 243; Luxford v. Large, 5 C. & P. 421; Radley v. London & N. W. Rail. Co., 1 App. Cas. 754; The Sisters, 1 P. D. 117; The Bywell Castle, 4 P. D. 219. For the Regulations for

But no liability will ensue caused by a ship justifiably

the Prevention of Collisions at Sea, see Appendix.

(h) Mayhew v. Boyce, 1 Stark. 423, 425.

(i) The Velocity, L. R., P. C. 44; The Esk, ib. 436; see "Cases" (3) at end of this §; The Carolus Rotgers, 3 Hag. Ad. 343.

(j) The Kjobenhavn, 2 Asp. M. C. 213; Seccombe v. Wood, 2 Moo. & Rob. 290; Lords, &c. of Romney Marsh v. Trinity House, L. R., 7 Ex. 247.

(k) White v. Crisp, 10 Ex. 312; Harmond v. Pearson, 1 Camp. 515.

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