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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justiceand Mr. Justice Middleton.
PONNUSAMY v. VEERAGATTCPILLAI et al.
D. G., Jaffna, 6,799.
Ship—Person effecting repairs acquires no maritime lien—Cannot enforcea claim against ship after sale to third parties—Ordinary lien—Constructive possession—Delivery of skip by order of Court.
A person who has effected repairs to a ship acquires only anordinary lien and not a maritime lien for the cost of the repairs, andhe loses his right to enforce his claim against the ship after he givesup possession of the ship.
rpHE facts are set out in the judgment of the Chief Justice.
Sampayo, K.C. (with him Talaivasinghatn), for first defendantappellant.
H. A. Jayewardene (with him Balaaingham), for plaintiff,respondent.
Cur. adv. vult.
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July 82,1910 July 22, 1910. Hutchinson C.J.—
PormuaamyThe second defendant was the owner of a sailing vessel, and the
*•was the tindal employed by him on the vessel. The
* plaintiff in his plaint alleges that in May, 1908, the vessel wasunseaworthy and required repairs, which he executed at his owncost at the request of the owner, who was not able to raise thenecessary money; that on February 16, 1909, he obtained judgmentin action No. 6,077 of the District Court of Jaffna against the seconddefendant for Bs. 899.23, the cost of the repairs; that .he issued awrit on his judgment under which he seized the vessel, when thefirst defendant claimed it, and the claim was upheld on August 6,1909, whereupon the plaintiff brought this action on August 18,1909; that the second defendant, acting in collusion with the firstdefendant with intent to defraud the plaintiff, transferred the vesselto the first defendant for a sum much below its value on August 22,1908, during the pendency of action No. 6,077; and that his decreein that action is still unsatisfied. He claims (a) that the vessel bedeclared liable to be seized and sold under the writ in actionNo. 6,077; and (b) that the transfer to the first defendant be declaredvoid as against the plaintiff's claim.
The first defendant in his answer denies that the vessel wasunseaworthy or required repairs or that the plaintiff expended anymoney in its repairs so as to acquire a legal hypothec on it; anddenies any collusion or that the transfer to him was fraudulent orfor a lower value than the vessel was worth; and he says that bydeed dated March 17, 1906, the vessel was mortgaged to him by thesecond defendant for Bs. 5,000 and interest; that in action No.5,986of the District Court of Jaffna he sued the second defendant on themortgage bond and recovered judgment for Bs. 6,142 on August 18,1908; and that the second defendant by deed dated August 22, 1908,transferred the vessel to him in satisfaction of the sum so decreed,which was a fair price for it.
There were issues as to whether the transfer to the first defendantwas made in collusion with the second defendant in order to preventthe plaintiff recovering his debt, and as to whether it was for valuableconsideration. The District Judge found on those issues in favourof the defendants, and that finding is not disputed. There was alsoan issue whether the plaintiff’s decree in No. 6,077 was res judicata;but it was not a decree ire rem, and was not res judicata as against thefirst defendant, who was no party to it. The issues with which weare concerned were: (1) Is the vessel subject to a legal hypothec forthe amount decreed in No. 6,077 ? (3) Is it bound for the amountso decreed?
The decree in No. 6,077 was only a personal decree for moneyagainst the second defendant. The first defendant was not a partyto it; and we should therefore treat the first issue as being: Whetherthe vessel is subject, to a legal hypothec for the amount expended by
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the plaintiff on repaint? And with regard to the words “ legal 22,1910hypothec,” since the law to be applied is, in accordance with Ordi- Hutchinsonnance No. 5 of 1852, the law of England, the actual question is C-J-whether the plaintiff has a lien on the vessel for the cost of his repairs, ponnusamyAnd since a " maritime lien ” cannot be set up for repairs, his lien, "• Veeragatti-ii he has any, must be the ordinary lien.°*
Such a lien is lost if the person claiming it has given up possession;and the first defendant says that the plaintiff gave up possessionlong before this action was instituted. The plaintiff in his evidencegiven on January 20, 1910, says that he was sent away from theressel by order of the Court, at the instance of the first defeudant. inthe first defendant's action No. 5,986, about seven or eight daysafter he instituted action No. 6,077 (i.e., long before the presentaction was begun); that he made no objection to the Court; andthat She first defendant is now, and has been for about a year, inpossession of the vessel. The first defendant deposed that it was athis instance that the plaintiff was sent out of the vessel; that hegot an injunction from the Court; and that the plaintiff did notthen make any claim for repairs. On these facts the plaintiff’scounsel contends that he ought to be considered still to have beenin possession at the date of the commencement of the present action.
But he was deprived of possession by an order of the Court, and didnot then claim any lien; and he acquiesced in the order, and madeno claim to have a lien until many months afterwards, when hebegan this action. In my opinion he has lost his lien.
The decree of the District Court declared the vessel liable to beseized and sold under the decree in case No. 6,077. I think that itshould be set aside and the action dismissed, and that the plaintiffshould pay the first defendant’s costs of the action and of the appeal.
This case has been tried in the District Court on the theory thatthe Roman-Dutch Law applied, but, as we held at the argument, itought to have been determined by English Law (Ordinance No. 5 of1852, section 1). Under English Law there would be no maritimelien for repairs unless they were secured on a bottomry bond. Theplaintiff here, therefore, has to fall back on the doctrine of ordinarylien, and his contention is that he was deprived of his actual posses-sion under that lien by via major, and that in point of law it stillexists on the ground of constructive possession.
The Chief Justice has examined the record in D. C., Jaffna,
5,986, an action on a mortgage bond given by the second defendantto the first defendant on the ship in question.
On July 27, 1908, the first defendant here got judgment on hisbond against the second defendant here, and on the same day theSub-Collector of Customs of Jaffna was appointed to take charge of
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Jidy 22,1*10 the ship on an affidavit alleging that the second defendant here wasHmDussov ^tending to damage the ship, and that the tindal (plaintiff here)J. was not taking proper care of it.
Pormueamg On August 18, 1908, a consent decree was entered for the sale«. Veeragatti^ of the ship to the first defendant by the second in full satisfaction ofthe amount due on the decree, and the order appointing the Sub-Collector of Customs was discharged. The transfer of the shipwas executed by deed of August 22, 1908.. No objection or claimappears to have been made by the tindal, the present plaintiff, andI think it is clear he lost possession upon the order of July 27, 1908,and with it his right of lien founded on such possession. No doc-trine of Constructive possession on the plea of ouster by vis majorcan be availed of here. Hie right of lien depends on actual posses-sion, and the plaintiffs ejection from that position was acquiesced inby him for about one year before he brought this action. I think,therefore, that the plaintiff has lost his right of lien, and has no rightin that respect over the ship.
The owner of the ship, the second defendant, may have defraudedthe plaintiff, but there does not seem to be any reason for supposingthat the sale by him to the first defendant was as regards the firstdefendant a fraudulent one. The plaintiff being in charge of theship in July, 1908, must have been fully aware of the first defend-ant’s proceedings against his owner, the second defendant, and itseems strange to me that he was not then found asserting his claimin the ship for the repairs, for which he subsequently recoveredjudgment.
The District Judge seems to suspect that the ship was sold formuch less than its actual value to the first defendant. This,however, may have been the case without any fraud on the part ofthe first defendant. The District Judge holds that no fraudulentcollusion is proved between the first and second defendants, and thispoint was not touched on in appeal.
I agree that the appeal must be allowed, and the judgment of theDistrict Judge must be set aside, and the action of the plaintiffdismissed with costs in both Courts.
PONNUSAMY v. VEERAGATTIPILLAI et al