in rem, i.e. against the ship itself, attach, so long as there is no bona fide change of ownership, without citing the owners, in all cases of claims for damage to ship and of claims for damage to cargo where no owner is domiciled in England or Wales. Irrespective of this limitation, they attach in all cases not only of damage to cargo, but also of breaches of contract to carry where the damage does not exceed £300, when the suit must be commenced in a county court having admiralty jurisdiction; and in cases of claims for necessaries supplied elsewhere than in the ship’s home port, for wages earned even under a special contract by masters and mariners, and of claims for towage. In all three classes the lien also exists over cargo where the suit from its nature extends to it, as in salvage and in some cases of bottomry or respondentia, and in cases where proceedings are taken against cargo by the shipowner for a breach of contract (cargo ex “Argos” and the “Hewsons,” 1873, L.R. 5 P.C. 134; the “Alina,” 1880, 5 Ex. D. 227).
Elsewhere than in England, and those countries such as the United States which have adopted her jurisprudence in maritime matters generally, the doctrine of maritime lien, or that which is substituted for it, is very differently treated. Speaking generally, those states which have adopted the Napoleonic codes or modifications of them—France, Italy, Spain, Holland, Portugal, Belgium, Greece, Turkey, and to some extent Russia—have instead of a maritime lien the civil-law principle of privileged debts. Amongst these in all cases are found claims for salvage, wages, bottomry under certain restrictions, and necessaries. Each of these has a privileged claim against the ship, and in some cases against freight and cargo as well, but it is a matter of very great importance that, except in Belgium, a claim for collision damage (which as we have seen confers a maritime lien, and one of a very high order, in Great Britain) confers no privilege against the wrong-doing ship, whilst in all these countries an owner can get rid of his personal liability by abandoning the ship and freight to his creditor, and so, if the ship is sunk, escape all liability whilst retaining any insurance there may be. This, indeed, was at one time the law of Great Britain; the measure of damage was limited by the value of the res; and in the United States at the present time a shipowner can get rid of his liability for damage by abandoning the ship and freight. A different rule prevails in Germany and the Scandinavian states. There claims relating to the ship, unless the owner has specially rendered himself liable, confer no personal claim at all against him. The claim is limited ab initio to ship and freight, except in the case of seamen’s wages, which do confer a personal claim so far as they have been earned on a voyage or passage completed prior to the loss of the ship. In all maritime states, however, except Spain, a provisional arrest of the ship is allowed, and thus between the privilege accorded to the debt and the power to arrest till bail is given or the ship abandoned to creditors, a condition of things analogous to the maritime lien is established; especially as these claims when the proper legal steps have been taken to render them valid—usually by endorsement on the ship’s papers on board, or by registration at her port of registry—attach to the ship and follow her into the hands of a purchaser. They are in fact notice to him of the incumbrance.
Duration of Lien.—So long as the party claiming the lien at common law retains the property, the lien continues, notwithstanding the debt in respect of which it is claimed becoming barred by the Statute of Limitations (Higgins v. Scott, 1831, 2 B. & Ald. 413). But if he takes proceedings at law to recover the debt, and on a sale of the goods to satisfy the judgment purchases them himself, he so alters the nature of the possession that he loses his lien (Jacobs v. Latour, 5 Bing. 130). An equitable lien probably in all cases continues, provided the purchaser of the subject matter has notice of the lien at the time of his purchase. A maritime lien is in no respect subject to the Statute of Limitations, and continues in force notwithstanding a change in the ownership of the property without notice, and is only terminated when it has once attached, by laches on the part of the person claiming it (the “Kong Magnus,” 1891, P. 223). There is an exception in the case of seamen’s wages, where by 4 Anne c. 16 (Stat. Rev. 4 & 5 Anne c. 3) all suits for seamen’s wages in the Admiralty must be brought within six years.
Ranking of Maritime Liens.—There may be several claimants holding maritime and other liens on the same vessel. For example, a foreign vessel comes into collision by her own fault and is damaged and her cargo also; she is assisted into port by salvors and ultimately under a towage agreement, and put into the hands of a shipwright who does necessary repairs. The innocent party to the collision has a maritime lien for his damage, and the seamen for their wages; the cargo owner has a suit in rem or a statutory lien for damage, and the shipwright a possessory lien for the value of his repairs, while the tugs certainly have a right in rem and possibly a maritime lien also in the nature of salvage. The value of the property may be insufficient to pay all claims, and it becomes a matter of great consequence to settle whether any, and if so which, have priority over the others, or whether all rank alike and have to divide the proceeds of the property pro ratâ amongst them. The following general rules apply: liens for benefits conferred rank against the fund in the inverse, and those for the reparation of damage sustained in the direct order of their attaching to the res; as between the two classes those last mentioned rank before those first mentioned of earlier date; as between liens of the same class and the same date, the first claimant has priority over others who have not taken action. The courts of admiralty, however, allow equitable considerations, and enter into the question of marshalling assets. For example, if one claimant has a lien on two funds, or an effective right of action in addition to his lien, and another claimant has only a lien upon one fund, the first claimant will be obliged to exhaust his second remedy before coming into competition with the second. As regards possessory liens, the shipwright takes the ship as she stands, i.e. with her incumbrances, and it appears that the lien for seaman’s wages takes precedence of a solicitor’s lien for costs, under a charging order made in pursuance of the Solicitors Act 1860, § 28.
Subject to equitable considerations, the true principle appears to be that services rendered under an actual or implied contract, which confer a maritime lien, make the holder of the lien in some sort a proprietor of the vessel, and therefore liable for damage done by her—hence the priority of the damage lien—but, directly it has attached, benefits conferred on the property by enabling it to reach port in safety benefit the holder of the damage lien in common with all other prior holders of maritime liens. It is less easy to see why of two damage liens the earlier should take precedence of the later, except on the principle that the res which came into collision the second time is depreciated in value by the amount of the existing lien upon her for the first collision, and where there was more than one damage lien, and also liens for benefits conferred prior to the first collision between the two collisions and subsequent to the second, the court would have to make a special order to meet the peculiar circumstances. The claim of a mortgagee naturally is deferred to all maritime liens, whether they are for benefits conferred on the property in which he is interested or for damage done by it, and also for the same reason to the possessory lien of the shipwright, but both the possessory lien of the shipwright and the claim of the mortgagee take precedence over a claim for necessaries, which only confers a statutory lien or a right to proceed in rem in certain cases. In other maritime states possessing codes of commercial law, the privileged debts are all set out in order of priority in these codes, though, as has been already pointed out, the lien for damage by collision—the most important in English law—has no counterpart in most of the foreign codes.
Stoppage in Transitu.—This is a lien held by an unpaid vendor in certain cases over goods sold after they have passed out of his actual possession. It has been much discussed whether it is an equitable or common-law right or lien. The fact appears to be that it has always been a part of the Law Merchant, which, properly speaking, is itself a part of the common law of England unless inconsistent with it. This particular right was, in the first instance, held by a court of equity to be equitable and not contrary to English law, and by that decision this particular part of the Law Merchant was approved and became part of the common law of England (see per Lord Abinger in Gibson v. Carruthers, 8 M. & W., p. 336 et seq.). It may be described as a lien by the Law Merchant, decided by equity to be part of the common law, but in its nature partaking rather of the character of an equitable lien than one at common law. “It is a right which arises solely upon the insolvency of the buyer, and is based on the plain reason of justice and equity that one man’s goods shall not be applied to the payment of another man’s debts. If, therefore, after the vendor has delivered the goods out of his own possession and put them in the hands of a carrier for delivery to the buyer, he discovers that the buyer is insolvent, he may re-take the goods if he can before they reach the buyer’s possession, and thus avoid having his property applied to paying debts due by the buyer to other people” (Benjamin on Sales, 2nd ed., 289). This right, though only recognized by English law in 1690, is highly favoured by
