.Mary Jane vs. Material Man

Navigating the Lower Saint Lawrence in the 19th Century.

Morning Chronicle, Friday, 22nd September, 1848.


	ADMIRALTY LAW REPORT. Vice-Admiralty Court, Lower Canada.
	Tuesday, 19th September, 1848.
	Present: Honourable Henry Black, The Mary Jane, Trescowthick.
	In this case an action was entered against the Mary Jane, a schooner built and registered within the port of Quebec, for the value of materials and work supplied to her by John Armstrong. The libel shortly pleaded that this person was engaged on or about the 29th of June last by Jonathan Trescowthick, the owner and master, to furnish all the iron work necessary for the fitting out and rigging of the vessel, and rendering her seaworthy, without which she could not proceed to sea; that he was employed on board of her in furnishing the iron work from the 29th of June to the 9th of the present month of September, during which time, the schooner was in the harbour of Quebec within the District of Quebec; and that the amount due was £49. That the schooner was "a sea-going vessel," and that the owner refused to pay. On the part of the owner the jurisdiction of the Court to entertain the suit was denied, and upon this ground the admission of the libel was objected to.
	Judgment
	The Court. The question which this case brings under the consideration of the court is, whether persons furnishing supplies to ships in this country, technically called material men, have a lien upon the ship for the amount of those supplies; and if so, whether the court has jurisdiction to enforce such lien. The word lien is used from the want of any other word in the English language to express the exact nature of the right claimed. When used in relation to material men, as in the question above stated, it has an import different from the ordinary import. Lien in the common acceptation of the term in the English law implies an actual possession in the holder of it, or the subject upon which it is claimed. There is no doubt that in this sense of the word ship-builders, like other tradesmen in possession of the subject upon which their labour has been employed, have a lien upon the subject for the price of their labour, so long as they retain the possession. (1) But, the lien here claimed is entirely apart from the possession; it is rather a right to proceed against the vessel, and to be paid out of the proceeds, in preference to all other creditors, and being strictly the hypotheca of moveables, allowed by the civil law, may, to avoid confusion, be conveniently denominated hypothecary lien. The hypothec of moveables is, it is believed, unknown in the English municipal or common law; and in the civil and maritime law of England, is confined within a small number of cases, such a seamen's wages, and special hypothecation. It is true that by the general maritime law of Europe and America, an hypothecary lien is given for repairs done and materials furnished to other than domestic ships, (2) and in many countries for repairs and supplies to domestic ships also (3); and this hypothecary in lien follows the ship into the hands of a bona fide purchaser without notice. (4) There are considerations of convenience and public policy applicable as well to the one rule as to the other. The rule of continental Europe and of America has a strong shew of equity in its favour; the labour and materials of the material man are incorporated with the ship, and the owner being allowed to profit by this augmentation in the value of his ship, without paying for it, seems to contravene the rule that nemo debet locupletari aliena jactura. So, it would seem greatly to facilitate navigation by enabling the master or the owner, at all times, and in all places, to command for the purposes of his voyage a credit equal to the value of the ship. The policy of the English law seem to lie
	deeper. It has been quaintly but truly said that "ships were made to plough the ocean, not to rot in port." The allowing of hypothecary liens upon moveables is repugnant to commercial policy, and eminently so would be the allowance of such lien upon ships, as subjecting them to unnecessary detention, and diminishing the security of titles to them. If the material man be unwilling to make repairs to the ship at the port to which she belongs, upon the credit of the owner, he may obtain from him a special hypothecation of the ship, for this as for any other port. If the master should require repairs to be made in the progress of his voyage in a port abroad, and there be a necessity of the hypothecation of the ship for the making of such repairs, he too may hypothecate the ship. (5) The maritime law of England then in refusing a tacit hypothecary lien, and in allowing and enforcing a special hypothecation of the ship, made by the owner under any circumstances, or by the master in the progress of the voyage in case of necessity, equally provided for the ship's ploughing the ocean and for her not rotting in port. But whatever may be the reason of the one or the other rule, the court is bound to enforce and carry into effect the law as it stands. The commissions to the judges of the Vice-Admiralty Courts in the British possessions abroad, empower them to hear and determine causes "according to the civil and maritime law of the High Court of Admiralty of England." The terms of the commissions were settled at a very old date, they are very general, but necessarily controlled by the above cited words, introduced with a view to one uniform system for the guidance of the Courts of Admiralty in every part of the British possessions. The inquiry thus narrows itself down to the question, what in relation to material men is the civil and maritime law of England. Now, a long course of uniform decisions in the English Courts, from the time of Charles the Second down to the case of the Neptune in 1835, (6) has established the principle that no hypothecary lien exists for work done or materials furnished to ships in England. Where an attempt similar to the present was made by a person who had repaired a ship, to claim a lien on the process of her sale, Lord Hardwicke states it as one of the questions in the cause whether the money arising from the sale should be answerable to the plaintiff, and then after laying down the rule that the ship itself would not be liable, he proceeds to say; "If therefore the body of the ship be not liable to hypothecated, how can the money arising by sale be affected or followed, the one being consequential of the other?" (7) In the latest case upon this subject, that of the Neptune, the judicial committee of the Privy Council, upon an appeal from the High Court of Admiralty of England, expressly denied that material men ever had, by the English maritime law, in respect of such contracts, any lien upon the ship, or any preference over other simple contract creditors on the proceeds. The same rule obtains in Scotland, the municipal law of which country like our own, in Lower Canada, recognises hypothecary liens. In the case of Wood vs. Hamilton, the House of Lords, on the 15th June, 1789, upon an appeal from the Scotch Courts, affirmed a judgment against this claim although such claims had been frequently allowed in the Courts of Scotland during a period of fourscore years preceding (8). Then, as to repairs made abroad, in the course of the voyage, the hypothecation must be express, whether made by the owner or by the master (9). In the numerous cases in which repairs have been made, or material furnished by orders of the master abroad, and in which attempts have ben made to enforce the claim of the material man against the ship, the hypothecation has been express; and the question has generally turned upon the necessity, which alone could authorize the master to hypothecate the ship. No tacit hypothecation of the ship has ever been recognized in the High Court of Admiralty (10), and in the case of the Neptune, already adverted to, in which a privilege, over the proceeds of the ship in the registry, was asserted by the High Court of Admiralty, the judgment was, after much consideration, reversed by the Judicial Committee of the Privy Council. I will shortly advert to another point that has been pressed upon the Court in the argument of the Counsel for the promoter. It has been contended that the sixth section of the Act 3 & 4, Vic c. 65, confers upon the Court an authority which it did not previously possess in such matters. The words of this section are these; "The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time when the services were rendered, or damage received, or necessaries furnished, in respect of which such claim is made". Without being disposed to narrow the interpretation of a statute in cases where the exigence or convenience of commerce calls for an extended latitude of construction, I think it can scarcely admit of doubt that a vessel built and registered in a British possession is not a foreign sea-going vessel with the provisions of this statute. It was so decided by the High Court of Admiralty in a case, under the same statute, against a vessel built and registered in the Province of New Brunswick. The learned judge, Doctor Lushington, in delivering his judgment in that case, said: "If the section in question were intended to give the court a jurisdiction with respect to necessaries furnished to 'any sea-going vessel', there would be no difficulty in the case, for this a vessel is clearly a sea-going vessel. I must confess, however, I entertain a considerable difficulty in conceiving that the legislature ever intended to confer upon the court so extensive and extraordinary a power". And again: "Looking at the decisions of the courts of common law upon this subject, and at the great jealousy which has been universally manifested against the introduction of the general maritime law for the purpose of enforcing demands of this description, I cannot thing that the present case should be warranted in adopting such a construction of the statute" (11).

	I have not been able to ascertain what the practice may have been in the Vice-Admiralty Courts in the old British Colonies, not that which now obtains in the Vice-Admiralty Courts of other dependencies of Great Britain. I am inclined to believe, however, that this claim of hypothecary lien was not enforced in the Vice-Admiralty Court of the old Colonies. The subject has, since the declaration of American independence, undergone much discussion in the Courts of the United States, exercising Admiralty jurisdiction; and the claim has there been maintained for repairs made and necessaries furnished to a foreign ship, or to a ship in the port of a State to which she does not belong. But in none of the arguments of counsel or judgments of the courts in those case, is there a trace to be found of the existence of such a principle of jurisprudence in the pre-existing Colonial Courts of Vice-Admiralty. If an hypothecation of the vessel could be shewn under the civil and maritime law and customs of the High Court of Admiralty of England, then this Court would be bound to enforce it; but I am of opinion that there has been no hypothecation whatever, and I must, therefore, reject the present libel. It is to a case like this that is peculiarly applicable the observation of Sir Christopher Robinson, and I avail myself to his words: "I feel that it is my duty not to adventure beyond the known limits of my authority; and I should only involve the parties in expense and disappointment where I to encourage any such experiment." (12) Charles Alleyn, Esquire, for Material Man. H.S. Anderson, Esquire, for Owner. (1) The Vibilia, 1 Robinson, p. 6. The Harmonie, Ibid. p. 178. (2) The General Smith, 4 Wheat, p. 438. St. Jago de Cuba, 9 Wheat, p 409. (3) Valin sur l'Art. 16. tit. 14. liv. 1er. de l'Ord. de la Marine. Boulay Paty, Cours de Droit Coml. tom. 1, p. 110.124 Abbolt on Shipping, p 149, 7th Edition. (4) Madona d'Idra, Dobson, p 40. (5) The Gratitudine, 3 Rob. Ad. Rep. 240. Sir Joseph Jekyll in Watkinson vs. Bernadiston, 2 Peere Williams, 367, Bensen vs. Jeffries, 1 Lord Raym. 152. Johnson vs. Shippen, Salk. 35. (6) 3 Knapp's Cases, in the Privy Council, p. 94. (7) Ex-part Shank, 1 Atk. 234. (8) Abbolt on Shipping, p. 147, 7th Edition by Shee. (9) Justin vs. Ballam, Salk. 34. (10) See judgment of Sir Christopher Robinson, in the case of the Maitland, 2 Haggard, p. 254. (11) The Ocean Queen, 1 Robinson, p.460. (12) The Public Opinion, 2 Haggard, p. 403.

G.R. Bossé©1999-03.

Posted:
Nov. 3rd, 1999.

Updated:
July 15, 2003.