General rule. Bottomry. CHAPTER V. The Order of Claims. res Ir is an invariable rule that claims against the In claims by holders of bottomry bonds, where there are two or more bonds, they rank according to the main rule, the last having precedence, and so on, to the first in the order of time, unless the holders of bonds of different dates have acted in concert and privity as though they were the lenders of one sum, when their claims will be paid pro rata.10 If a bond is given upon ship, freight, and cargo, the proceeds of the ship and freight must be exhausted before the cargo can be touched; 11 and on the 1 The Cargo ex Galam, Br. & L. 167. 2 M. S. A. 1854, s. 459; The Coromandel, Swa. 205. 3 The Gustaf, Lush. 506; 31 L. J. Ad. 207. 4 The Linda Flor, Swa. 309. 5 The Feronia, 2 L. R. Ad. 65; 37 L. J. Ad. 60; The Union, Lush. 128; 30 L. J. Ad. 17; and P. 64. 6 The Cargo ex Galam, sup. 7 The Two Ellens, 4 L. R. P. C. 160; 41 L. J. Ad. 33. 8 The Two Ellens, sup. 9 The Eliza, 3 Hagg. 87. 10 The Exeter, 1 C. Rob. 173. 11 The Bonaparte, 3 W. Rob. 292. same principle, if of two or more bonds the latest is on ship, freight, and cargo, and the others on ship and freight, the last must be paid out of the ship and freight, even though by so doing the other bonds will not be satisfied.1 When the cargo alone is hypothecated, the ship and freight will, though not mentioned in the bond, become liable before the cargo can be touched; but if a bond on the cargo only is subsequent to one on ship and freight, the holder of this instrument will have the first claim contrary to the usual principle as to time, because the lender on the security of the cargo might have specifically mentioned the ship so as to give him a claim against the vessel and freight. When the ship and freight belong to different persons they will usually bear a ratable proportion of the payment of the bond.3 2 Subject to these rules, assets as a general principle are equitably marshalled. When a bondholder and a master make claims against a ship and freight and cargo, the claim of the master, if bound personally by the bond, will be postponed to that of the bondholder, unless the latter can be postponed without prejudice to his rights, as by allowing his claim to be satisfied from the cargo.5 And it scarcely needs pointing out that a bond made subsequent to the date when wages have become due takes precedence of such wages.6 As regards necessaries. Since those who have supplied Necesforeign ships with necessaries have a lien for their claim, wages, &c. 1 The Priscilla, Lush. 1; 1 L. T. N. S. 272. 2 The Gratitudine, 3 C. Rob. 240 (264); The Constancia, 4 No. of Ca. 285; The Eliza, 3 Hagg. 87. 3 The Dowthorpe, 3 W. Rob. 73 (81). The Priscilla, Lush. 1; 1 L. T. N. S. 272. 5 The Edward Oliver, 1 L. R. Ad. 379; 36 L. J. Ad. 13; The Daring, 2 L. R. Ad. 260; 37 L. J. Ad. 29; The Eugenie, 4 L. R. Ad. 123; 29 L. T. N. S. 314. 6 The Hope, 28 L. T. N. S. 287. 7 The Two Ellens, 4 L. R. P. C. 160; 41 L. J. Ad. 33; The Ella A. Clerk, Br. & L. 32; 32 L. J. Ad. 11. saries, mortgagees have a prior claim only in the case of necessaries supplied to British ships. If a fund in Court is insufficient to pay each of several claimants in full, their claims will be satisfied pro rata. But if one has actually obtained a judgment before the others, their claims will be postponed until his judgment is satisfied. If a master is part-owner of a ship, his claim for wages and disbursements, contrary to the general rule, will rank after those of persons who have supplied necessaries.2 And in regard to wages generally, the date at which they accrue is a matter of much importance, for if they become due at the end of a voyage on which a bottomry bond has been given, they rank before such bond, in consequence of the cardinal principle as to the priority of liens which has already been noted.3 1 The Desdemona, Swa. 158. The Jenny Lind, 3 L. R. Ad. 529; 41 L. J. Ad. 63. 3 The Hope, 28 L. T. N. S. 287. CHAPTER VI.* INFERIOR COURTS OF ADMIRALTY AND APPEALS THEREFROM. SECTION I. The County Courts. tion en THE Admiralty jurisdiction of the county courts is entirely Jurisdicstatutory. It is to be exercised either by all or only by tirely certain specified county courts. A limited jurisdiction in statutory. Admiralty was first conferred upon the county courts by the Merchant Shipping Acts of 1854 and 1862, and could be exercised by all county courts,1 but only in the cases following: First. In the event of an injury having been in any Under the part of the world caused by a foreign ship to British Merchant Shipping property, it is competent for the judge of any court of Acts. record in the United Kingdom (which includes a county Damage. court), upon its being shown to him by any person applying summarily that such injury was probably caused by the misconduct or want of skill of the master or crew, to direct the vessel to be detained until satisfaction is made for the alleged wrong, or security is given to abide the event of a legal proceeding in respect of it. To found the jurisdiction the offending vessel must be found in a port or river of the United Kingdom or within three miles of the coast thereof.2 1 But now by 31 & 32 Vict. c. 71, s. 5, no county court, except those appointed by Order in Council, is to have jurisdiction in Admiralty. 2 17 & 18 Vict. c. 104, ss. 527–529. S. 527 is confined to damage This Chapter is, with the exception of my final supervision, the work of James Williams, Esq., Barrister-at-Law, of the Northern Circuit. F Salvage. Allotment notes. Under the Admiralty Second. The jurisdiction in salvage cases conferred by Part VIII. of the Merchant Shipping Act, 1854, upon two justices is extended to all cases in which the value of the property does not exceed 1000l., and is given to a county court judge.1 Third. The jurisdiction over allotment notes of seamen's wages, exercised in a summary manner by justices, may be exercised by a county court.2 But the County Courts Admiralty Jurisdiction Act, 1868,3 amended and extended in 1869, gave the county courts their real Admiralty jurisdiction.* These Acts apply, however, only to certain county courts, defined by Order in Council, while the two Merchant Shipping Acts were, until the Act of 1868, perfectly general in their application. The effect of the latter Act is to leave the jurisdiction under the Merchant Shipping Acts untouched, as far as regards county courts having Admiralty jurisdiction under that Act, but to confine its exercise to such courts. The jurisdiction of the county courts under the recent Acts is both in rem and in personam, but is limited by— 1st. The amount claimed, or (in salvage claims), the value of the property saved; 2nd. The nature of the claim; 3rd. The place in which the cause of action arose. to property, and does not extend to injuries to the person Harris v. Owners of The Franconia, 2 L. R. Č. P. D. 173; 46 L. J. C. P. 363. And as to detention, see also 31 & 32 Vict. c. 71, s. 22. 125 & 26 Vict. c. 63, s. 49. Under this Act the judge sits as an arbitrator. The fact of there being a sum agreed does not oust the jurisdiction of the county court judge, if the sum seem to him not a reasonable amount : Beadnell v. Beeson, 3 L. R. Q. B. 439; 37 L. J. Q. B. 173. The practice under 25 & 26 Vict. c. 63, s. 49, is regulated by the County Court Rules, 1875, Ord. xl. superseding r. 276 of the old Common Law Rules. The proceedings are commenced by entering a plaint and issuing a summons thereon (S. C.). For the jurisdiction of justices in such cases, see infra. 2 17 & 18 Vict. c. 104, s. 169. For the jurisdiction of justices in wages, see infra. 3 31 & 32 Vict. c. 71. 4 32 & 33 Vict. c. 51. 5 Order of Jan. 14, 1869. |