1859. June 11. Damage pronounced for. the ordinary manner required by the Admiralty regulation, was bound to make out a sufficient justification; and that if they were of opinion that no circumstances were proved sufficient to justify non-observance of the rule, and that the collision was in any degree occasioned by the lights not being exhibited as required, the Calla would be to blame for the collision. The Elder Brethren found that the Calla had not proved that it was impracticable to carry her coloured lights fixed, that the collision was caused by her default in not exhibiting her light in proper time, and that no blame was attributable to the Dora. The learned Judge then pronounced for the damage. Toller, proctor for the Dora. Clarkson for the Calla. June 17. THE NORTH AMERICAN, CLARKE, Master. Collision-Decree, both Vessels to blame-Practice-Detention Fees. Where, in an action of collision, a decree has been made of both vessels to blame, the Court will not refer the damage of both vessels to the Registrar, but will leave the defendant to his cross-action, notwithstanding that the ship of the plaintiff perished in the collision, and the plaintiff resides out of the jurisdiction. Where a vessel is arrested in an outport, and not by the marshal of the Court, the detention fees are to be paid by the arresting party, though successful in the cause. N the 18th of March, 1858, the North American was arrested at Liverpool, in an action of collision, by an agent of the owners of the Spanish barque Tecla Carmen. She continued under arrest during the trial of the cause until 5th of February, 1859, when bail was given and the arrest superseded. On the 26th of March, a cross-action was entered by the owners of the North American, but the Tecla Carmen having perished in the collision no warrant was issued, and her owners gave no appearance until the 4th of May, 1859. The original cause had meanwhile been tried and appealed, and their Lordships in the Privy Council (a) confirming the judgment of the Court (a) Ante, p. 358. below, that both vessels were to blame for the collision, remitted the cause. Twiss, Q.C., now moved the Court to order the detention fees to be paid by the owners of the North American, and the reference of the amount of damage received by the owners of the Tecla Carmen to proceed in the usual course. [DR. LUSHINGTON inquired of the Registrar what was the practice of the Court with respect to detention fees, when a vessel was arrested at an outport. Registrar: The universal practice is that the salvors or parties proceeding pay them.] Deane, Q.C., contrà. As to the fees, there is a proper distinction between an arrest by the marshal of the Court, the Court's own officer, and an arrest in an outport by a mere agent of the party arresting. The Court has a hold over its own officer for exacting no more than proper fees, but no hold over any other person. Since the decision of Cope v. Doherty (a), the owner of a foreign ship, for safety's sake, leaves his ship in the hands of the party arresting, or of the officer of the Court; and it would be hard indeed if to this hardship another was added, that he must pay all the detention fees. These fees also are of the nature of costs of the party proceeding, like printing. As to the order for reference. The cross-action has not been heard; the Tecla Carmen is sunk; and if the decision as before holds both vessels to blame, the owners of the North American will have no means of obtaining the fruit of their judgment. 1859. June 17. DR. LUSHINGTON :-The Registrar says, and my own memory Judgment. goes with him, that the unvarying practice of the Court has been, where the marshal arrests, that he has the security of the ship ing warrant in an outport pays the detention fees. for his costs; but where the party taking out the warrant Party executexecutes it himself or by his agent, he is responsible for the detention fees. Perhaps I cannot give any very satisfactory explanation for this difference in our practice in the London district and in the outports. But on mere motion I cannot change the ancient practice of the Court. These detention fees must be paid by the owners of the Tecla Carmen. (a) 4 K. & J. 367. 1859. June 17. The reference to proceed in the ordinary way. As to the reference. The cross-action should have been better prosecuted. Although no appearance had been given to the libel, I am of opinion that for such non-appearance a decree could have been got against the owners of the Tecla Carmen. The reference must proceed in the ordinary way. June 9. July 14. THE BENGAL, W. H. HENDERSON, Master. Master's Wages-Action in Personam and Judgment unsatisfied A master having sued for his wages at common law and recovered judgment, which THIS HIS was a suit for wages, brought by William Henry Henderson, late master of the barque Bengal; James Akett, formerly of Melbourne, then of New Orleans; Robert M'Swiney, of Melbourne, and John Atteridge, formerly of Melbourne then of Liverpool, her owners, intervening. The summary petition stated the hiring of Henderson in February, 1854, by Alexander Robinson, her then owner, on a voyage from London to Port Philip; the arrival of the barque. at Port Philip on 2nd September, 1854, where Henderson remained in charge of her as master till 2nd January, 1855, for which services he claimed, on balance of account, 741. 4s. That some time in October or November, 1854, the barque was sold by Messrs. Tootal and Browne, of Melbourne, under power of attorney from Robinson, to Messrs. White & Co., of Melbourne, of which sale Henderson was not aware till 1st of January, 1855, when he was required to deliver up possession of the barque to Messrs. White. This he, at first, refused to do; but being advised that he could not legally retain possession, there being no Admiralty Court at Port Philip, he delivered her up to Messrs. White. That he demanded his wages from Tootal and Browne, as agents of Alexander, who paid 57. on account, and gave him the following letter to Robinson : DEAR SIR, Melbourne, 19th January, 1855. LATE owner of the barque Bengal. This will be presented by Captain W. H. Henderson, late master of the barque Bengal, and will certify that, in consequence of the balance of funds, the proceeds of sale of the above barque having been attached in our hands to meet a claim for deficient delivery of wooden houses, we have been prevented by the Court paying Captain Henderson the balance of wages due to him, and amounting to 741. Yours, &c. TOOTAL AND Browne. That Henderson also received from Messrs. White 207. on account. That it was not till June, 1856, that he was able to leave for England, and he then made the voyage as mate of a vessel, and arrived in London 20th November, 1856, when he handed Messrs. Tootal and Browne's letter to Robinson, who promised to pay when he received remittances on account of the barque. That about 28th May, 1857, Robinson was, on his own petition, adjudged a bankrupt; that his estate was insolvent, and the trade assignee had refused to pay Henderson's wages; that from November, 1856, till February, 1859, Henderson had been unable to discover the said barque. This petition was answered by an allegation on behalf of Akett, M'Swiney and Atteridge, stating their purchase of the vessel in the beginning of 1855, from Messrs. White, at Melbourne. That in the early part of 1857 Henderson brought an action in the Court of Exchequer, for the same wages, against Robinson, and obtained judgment by default on the 1st May, 1857, for the sum of 741. and costs. That on 14th September, 1857, he filed his claim in bankruptcy against Robinson's estate, setting forth his action and judgment recovered as above. That the Bengal arrived at Montrose with a cargo in March, 1856, and had since then been employed between England and North America in the timber trade, and had on various occasions been in the ports of London and Shields, where Henderson might easily have arrested her at an earlier period. That the cause of action was the same as in the action and judgment recovered in the Court of Exchequer. That by reason of that action and judgment, and by reason of his laches and delay, and of the other premises, it was not competent in law to Henderson to recover the said wages against the Bengal, her present owners or the bail given, &c. On the 9th June Wambey moved to oppose the admission of the allegation. 1859. June 9. July 14. 1859. June 9. July 14. July 19. Judgment. A maritime lien attaches to the ship and follows the ship into a purchaser's hands; Harmer v. Bell (a). The unsatisfied judgment in personam is no bar to a plaintiff suing in rem ; a personal suit pending has been expressly decided to be no bar; Harmer v. Bell (b). The master has been guilty of no laches so as to forfeit his lien. The Court is always anxious to satisfy just claims of wages; Sydney Cove (c); Margaret (d); Repulse (e). Swabey in support of the owners' allegation. The judgment in the Court of Exchequer is a bar to proceeding for the same cause in rem: the cause is res judicata; King v. Hoare (f). Even if it were a case of lis alibi pendens only, that would be a bar; Lanarkshire (g). The master has lost his lien by his delay; Harmer v. Bell (h); Royal Arch (i). DR. LUSHINGTON :-In the allegation it is not pleaded that the purchasers were ignorant of the present demand, or that they made inquiries as to the existence of such a lien. This was a British ship sold in Australia; that fact, and the smallness of the sum, ought to have excited the attention and suspicion of the purchasers. Several facts are quite apparent; 1st, that these wages are a debt justly due to the master; 2ndly, that he is not barred by the Statute of Limitations; 3rdly, that he has obtained a judgment in a Court of Common Law against a bankrupt defendant, which judgment remains unsatisfied. The question, then, is, whether this master, having by law a twofold security for his wages, may avail himself of the second, the first which The personal he tried (the personal action) having practically failed to give fruitless, the relief. I know of no case immediately in point either as regards master or seamen; but I see no reason to doubt but that this suit ought to be allowed to proceed. So, when a mortgage and a collateral security along with it is taken, the creditor may proceed on either, and a Court of Equity will take care that he does not recover more than he is justly entitled to; Burnell v. Martin (k). I must reject this allegation. action proving master may sue in rem. Allegation rejected. Scurlock, proctor for the master. Jennings and Son for the owners. (a) 7 Moore, P. C. 281. (b) 7 Moore, P. C. 286. (c) 2 Dods. 13. (d) 3 Hagg. 240. (f) 13 M. & W. 504. (g) 2 Spinks, 189. (h) 7 Moore, P. C. 285. (i) Ante, p. 284. (k) Doug. 417. |