*

CHAP. IV. of hypothecation or otherwise; such repairs or necessaries furnished were, in fact, in all cases an actual hypothecation of the ship itself. Among all nations who have adopted the civil law as the basis of their jurisprudence, this privilege still exists; but by the law of England it is not so; for the law of England has not adopted this rule of the civil law with regard to repairs and necessaries furnished here to British ships in England: for, although Lord Mansfield in two cases in the King's Bench †, has remarked to the effect, that a person who supplies a ship with necessaries has not only the personal security of the master and owners, but also the security of the specific ship, this doctrine has been in numerous instances more than doubted, and overruled, at least as to its general application. "In most of those countries governed by the civil law, repairs and necessaries form a lien upon the ship herself. In our country the same doctrine had for a long time been held by the maritime courts; but after a long contest it was finally overthrown by the courts of common law, and by the highest judicature of the country, the House of Lords, in the reign of Charles II." ±

Lord Tenterden, in his work on Shipping, says, with reference to the dicta of Lord Mansfield, as follows:"In a recent case to which I have more than once had occasion to refer, Lord Kenyon, alluding to two cases that will be presently mentioned, expressed a doubt whether the doctrine of Lord Mansfield on this subject

* Qui in navem extruendam vel instruendam credidit vel etiam emendam, privilegium habet-quod quis navis fabricandæ vel emendæ vel armandæ, vel instruendæ causâ vel quoquo modo crediderit, vel ob navem venditam petat, habet privilegium post fiscum. Dig. 42. 5. 6., and Id. 134.

† Rich v. Coe, Cowper, 636., and Farmer v. Davis, 1 Ter. Rep. 109.; Abbott's Shipping, p. 142.

Per Lord Stowell in the Zodiac, 1 Haggard's Admiralty Reports, 320.

was not too generally laid down*; and upon the view CHAP. IV. of the decisions which I am about to quote, one of which was pronounced by Lord Mansfield himself, it appears that the law of England has not adopted this rule of the civil law with regard to repairs and necessaries furnished here in England. A shipwright, indeed, who has taken a ship into his own possession to repair it, may not be bound to part with the possession until he is paid for the repairs, any more than a tailor, smith, or other artificer, in regard to the object of his particular trade †, unless there be a special agreement to give credit for a certain period, or such an usage in the trade as is equivalent to a special agreement. But a shipwright who has once parted with the possession of the ship, or has worked upon it without taking possession, and a tradesman who has provided ropes, sails, provisions, or other necessaries for a ship, are not, by the law of England, preferred to other creditors, nor have any particular claim or lien upon the ship itself, for the recovery of their demands."§

The authorities here cited are quite sufficient to make it beyond a doubt, that, if a shipwright retains the possession of the ship, he has a priority or lien (the privilegium of the Roman law above alluded to), and can maintain such possession against other claims upon the ship; for in the case of Franklyn v. Hosier, sent by Lord Eldon for the opinion of the Court of King's Bench upon that point, the certificate of the Court of King's Bench was to this effect: "That the shipwrights, having the ship in their actual possession in their dock

* Westerdall v. Dale, 7 Term. Rep. K.B. 312.

† Bland, ex parte, 2 Rose, 91.; Franklyn v. Hosier, 4 B. & A. 341. Raitt v. Mitchell and another, 4 Camp. 146.

§ See Hill, ex parte, 1 Maddocks, 61.

See the Harmonie, 1 W. Robinson's Admiralty Reports, 178., how far such material-man has right to retain possession against

CHAP. IV. at the time of the owner's bankruptcy, had a lien upon the whole ship." In the style of the Court of Admiralty, persons so furnishing or constructing different materials of ships, such as shipwrights, sail and ropemakers, &c., &c., bear the appellation of material-men. Those are commonly called material-men, whose trade it is to build, repair, or equip ships, or to furnish them with tackle and provision (necessary in any kind).” * It is beyond doubt, that although material-men have now no lien on the ship without possession, and consequently the Court of Admiralty cannot now interpose by its proceedings against the ship on behalf of such material-man where he has parted with possession, still this was not the case in the earlier ages of our system of jurisprudence; and, as among the other rules of Roman law, the one mentioned at page 93. was adopted by the law and practice of the Admiralty Court, so were there Imany suits in that Court for building, repairing, and victualling a ship in this country against the ship itself, and not against any party by name; but, however much such proceedings against the ship were formerly entertained in the Court of Admiralty, applying the rule of law that a material-man had a lien on the ship itself, in later times the Admiralty Court has been prohibited from entertaining such suits with respect to proceedings by material-men for necessaries furnished to British ships in England; and, since the beginning of the reign of Queen Anne, the Court of Admiralty, in deference to the decisions of the superior courts, has never attempted to proceed in rem against the ship itself in such respect. The two latest cases in which material-men attempted to prosecute in the Admiralty Court their demands against the ship, are those of Hoare v. Clement † and Justin v.

* Sir L. Jenkins, cited in the Neptune, 3 Haggard's Admiralty Reports, 129.

† 2 Showler, 342.

Ballam *; and in both cases a prohibition was granted. CHAP. IV. In the former case, decided in Hilary term of the 35th and 36th years of the reign of Charles II.†, a material-man proceeded in the Admiralty Court against a ship, and the master, the late owner, and one Hoare, the present owner of her; a prohibition was granted from the King's Bench as to the ship and owner Hoare.‡ In the other case, decided in Michaelmas term of the first year of the reign of Queen Anne §, a person who had supplied necessaries to a ship at Ratcliffe upon the river Thames, proceeded against her in the Admiralty Court; a prohibition was granted and it was thus ruled: It does not appear in this case that the ship was in her voyage, when she became in distress for want of the materials supplied, and at the time of the contract. There was no hypothecation here as there was in the case cited. Now where there is an hypothecation, if the Admiralty should be prohibited to proceed, &c., the party would be without remedy, for no suit can be against the ship at common law upon it. Now, it is true, that by the maritime law, every contract with the master of a ship implies an hypothecation, but it is otherwise by the law of England. Therefore, this being a contract made with the master upon the land, it is the

common case.

It should further be mentioned, that in those cases of

* Salkeld, 34., and more fully in 2 Lord Raym. 805. † 2 Show.

See the previous authorities cited in this case in argument for prohibition. Lord Tenterden in his book on Shipping, in reference to this case, says: "It seems the prohibition would have been

general, if the master and former owner had applied for it, for the Court of Admiralty had no jurisdiction over the person in this case."

§ Salkeld, 34., and more fully in 2 Lord Raym. 805. According to the present law this suit would have been cognisable in the Admiralty Court, being a foreign ship.

Costard v. Lewstee, Comb. 135., Holt, 48.

CHAP. IV. hypothecation above mentioned, in which the Admiralty
Court had no power over the ship, neither has it over
either master or owner
* of the same, nor

the
person,
has it jurisdiction over the master where the ship is
liable; in Johnson v. Shippen↑ a prohibition was denied
as to the ship, but granted as to the master.

Having, therefore, established that a person supplying materials to a British ship in England, and giving up his lien on the ship by parting with its possession, if he ever had it, has no remedy against the ship, and that the Admiralty has no jurisdiction, it may not be useless to observe upon what principle the old rule of Roman law, or of ancient maritime law has been corrected by the common law of England; whether high considerations of public policy, and the interests of commerce generally have not justified this interposition of the common law. "With respect to ships, great reasons of public policy may, in a country of most extensive commerce and navigation, interpose and induce the application of the municipal law, which prohibits the arrest of the ship, and proceedings against the ship in specie; and this was the great principle of the statute of Richard II.; for if every person who supplied any necessary to a ship, had the right at the time to arrest her, vessels would hardly ever be able to sail without paying the uttermost penny, and in many cases would be exposed to the most extortionate demands; they would be liable to be arrested and detained from caprice or malice, and merchants would hardly venture to charter a vessel. This would be a great interruption to the navigation and commerce of the country, and forms adequate grounds for prohibiting the arrest in specie." ‡

* Leigh v.

Burley, 122 Owen. Cradock's case in Brownlow. † Salkeld, 35.

Per Sir J. Nicholl, in the Neptune, 3 Haggard's Admiralty Reports, 129.