The theory of equitable liens has its ultimate foundation,
therefore, in contracts express or implied which either deal or
in some manner relate to specific property, such as a tract of
land, particular chattels or securities, a certain fund and the
like. It is necessary to divest oneself of the purely legal notion
concerning the effects of such contracts, and to recognize the
fact that equity regards them as creating a charge upon, or
hypothecation of, the specific thing, by means of which the
personal obligation arising from the agreement may be more
effectively enforced than by a mere pecuniary recovery at
law” (Pomeroy, 2 Eq. Jur. 232).
This description from an American text-book seems to give at once the fullest and most concise definition and description of an equitable lien. It differs essentially from a common-law lien, inasmuch as in the latter possession or occupation is as a rule necessary, whereas in the equitable lien the person claiming the lien is seldom in possession or occupation of the property, its object being to obtain the possession wholly or partially. A special instance of such a lien is that claimed by a publisher over the copyright of a book which he has agreed to publish on terms which are not complied with—for example, the author attempting to get the book published elsewhere. It cannot perhaps be said that this has been absolutely decided to exist, but a strong opinion of the English court of exchequer towards the close of the 18th century was expressed in its favour (Brook v. Wentworth, 3 Anstruther 881). Other instances are the charging lien of a solicitor, and the lien of a person on improvements effected by him on the property of another who “lies by” and allows the work to be done before claiming the property. So also of a trustee for expenses lawfully incurred about the trust property. The power of a limited liability company to create a lien upon its own shares was in 1901 established (Allen v. Gold Reefs, &c., C.A. 1900, 1 Ch. 656).
Maritime Liens.—Maritime lien differs from all the others yet considered, in its more elastic nature. Where a maritime lien has once attached to property—and it may and generally does attach without possession—it will continue to attach, unless lost by laches, so long as the thing to which it attaches exists, notwithstanding changes in the possession of and property in the thing, and notwithstanding that the new possessor or owner may be entirely ignorant of its existence; and even if enforced it leaves the owner’s personal liability for any balance unrealized intact (the “Gemma,” 1899, P. 285). So far as England is concerned, it must be borne in mind that the courts of admiralty were conducted in accordance with the principles of civil law, and in that law both the pledge with possession and the hypothecation without possession were well recognized. The extreme convenience of such a right as the latter with regard to such essentially movable chattels as ships is apparent. Strictly speaking, a maritime lien is confined to cases arising in those matters over which the courts of admiralty had original jurisdiction, viz. collisions at sea, seamen’s wages, salvage and bottomry, in all of which cases the appropriate remedy is a proceeding in rem in the admiralty court. In the first of these—collisions at sea—if there were no maritime lien there would frequently be no remedy at all. When two ships have collided at sea it may well be that the innocent ship knows neither the name nor the nationality of the wrongdoer, and the vessel may escape with slight damage and not have to make a port of refuge in the neighbourhood. Months afterwards it is ascertained that she was a foreign ship, and in the interval she has changed owners. Then, were it not a fact that a maritime lien invisible to the wrongdoer nevertheless attaches itself to his ship at the moment of collision, and continues to attach, the unfortunate owner of the innocent ship would have no remedy, except the doubtful one of pursuing the former owner of the wrong-doing vessel in his own country in a personal action where such proceedings are allowed—which is by no means the case in all foreign countries. The same reasons apply, though not possibly with quite the same force, to the other classes of cases mentioned.
Between 1840 and 1873 the jurisdiction of the admiralty court was largely extended. At the latter date it was merged in the probate, divorce and admiralty division of the High Court of Justice. Since the merger questions have arisen as to how far the enlargement of jurisdiction has extended the principle of maritime lien. An interesting article on this subject by J. Mansfield, barrister-at-law, will be found in the Law Quarterly Review, vol. iv., October 1888. It must be sufficient to state here that where legislation has extended the already existing jurisdiction to which a maritime lien pertained, the maritime lien is extended to the subject matter, but that where a new jurisdiction is given, or where a jurisdiction formerly existing without a maritime lien is extended, no maritime lien is given, though even then the extended jurisdiction can be enforced by proceedings in rem. Of the first class of extended jurisdictions are collisions, salvage and seamen’s wages. Prior to 1840 the court of admiralty only had jurisdiction over these when occurring or earned on the high seas. The jurisdiction, and with it the maritime lien, is extended to places within the body of a county in collision or salvage; and as to seamen’s wages, whereas they were dependent on the earning of freight, they are now free from any such limitation; and also, whereas the remedy in rem was limited to seamen’s wages not earned under a special contract, it is now extended to all seamen’s wages, and also to a master’s wages and disbursements, and the maritime lien covers all these. The new jurisdiction given over claims for damage to cargo carried into any port in England or Wales, and on appeal from the county courts over all claims for damage to cargo under £300, though it may be prosecuted by proceedings in rem, i.e. by arrest of the ship, yet confers no maritime lien; and so also in the case of claims by material men (builders and fitters-out of ships) and for necessaries. Even though in the latter case the admiralty court had jurisdiction previously to 1840 where the necessaries were supplied on the high seas, yet as it could not be shown that such jurisdiction had ever been held to confer a maritime lien, no such lien is given. Even now there is much doubt as to whether towage confers a maritime lien or not, the services rendered being pursuant to contract, and frequently to a contract made verbally or in writing on the high seas, and being rendered also to a great extent on the high seas. In these cases and to that extent the high court of admiralty would have had original jurisdiction. But prior to 1840 towage, as now rendered by steam tugs expressly employed for the service, was practically unknown, and therefore there was no established catena of precedent to show the exercise of a maritime lien. It may be argued on the one hand that towage is only a modified form of salvage, and therefore entitled to a maritime lien, and on the other that it is only a form of necessary power supplied like a new sail or mast to a ship to enable her to complete her voyage expeditiously, and therefore of the nature of necessaries, and as such not entitled to a maritime lien. The matter is not of academical interest only, for though in the case of an inward-bound ship the tug owner can make use of his statutory right of proceeding in rem, and so obtain much of the benefit of a maritime lien, yet in the case of an outward-bound ship, if she once gets away without payment, and the agent or other authorized person refuses or is unable to pay, the tug owner’s claim may, on the return of the ship to a British port, be met by an allegation of a change of ownership, which defeats his right of proceeding at all if he has no maritime lien; whereas if he has a maritime lien he can still proceed against the ship and recover his claim, if he has not been guilty of laches.
A convenient division of the special liens other than possessory on ships may be made by classifying them as maritime, statutory-maritime or quasi-maritime, and statutory. The first attach only in the case of damage done by collision between ships on the high seas, salvage on the high seas, bottomry and seamen’s wages so far as freight has been earned; the second attach in cases of damage by collision within the body of a county, salvage within the body of a county, life salvage everywhere, seamen’s wages even if no freight has been earned, master’s wages and disbursements. These two classes continue to attach notwithstanding a change of ownership without notice of the lien, if there have been no laches in enforcing it (the “Bold Buccleuch,” 1852, 7 Moo. P.C. 267; the “Kong Magnus,” 1891, P. 223). The third class, which only give a right to proceed
