THE GOVERNMENT OF THE UNITED STATES OF AMERICA v. THE SIHP VALIANT ENTERPRISE

072-NLR-NLR-V-63-THE-GOVERNMENT-OF-THE-UNITED-STATES-OF-AMERICA-v.-THE-SIHP-VALIANT-ENTERPRISE.pdf


The Qoitemment of the United States of America v. The Ship
“ Valiant Enterprise **
337
[In the Colonial Court of Admiralty of Ceylon]
1961Present :H. N. G. Fernando, J.THE GOVERNMENT OF THE UNITED STATES OF AMERICA v.THE SHIP “ VALIANT ENTERPRISE ”Application No. 12 of 1960An Action in rent for Repatriation
Colonial Court of Admiralty of Ceylon—Limits of its jurisdiction—Applicability ofEnglish law—Maritime lien attaching to a ship—Action in rem—Right of aforeign State to make a claim based on maritime lien or some other right or lien—Subrogation in relation to maritime, lien—Ceylon Courts of Admiralty Ordinance,No. 2 of 1S91 (Cap. 7). s. 2—Civil Law Ordinance (Cap. 60), s. 2—MerchantShipping Acts (English) of 1889, s. 1, of 1894. s. 167, and of 1906 ss. 40. 41,42—Admiralty Court Acts (English) of 1840, s. 3, and of 1861, s. 11—Administration of Justice Act (English) of 1956, s. 1—United States (ofAmerica) Code, Title 46, s. 678.
When an action in rem is brought by a foreign claimant in the ColonialCourt of Admiralty of Ceylon under the Ceylon Courts of Admiralty Ordinanceof 1891 (Cap. 7) in respect of a ship, the Court, in determining whether thereexists a maritime lien attaching to the ship, will apoly the lex fori, the Englishlaw, and will give effect to the lien only on the basis that the admiralty juris-diction of the Supreme Court of Ceylon is restricted to the jurisdiction whichthe High Court of Admiralty exercised in England at the timo when the EnglishColonial Courts of Admiralty Act of 1S90 came into operation. On the otherhand, if tlie claim is. not that the claimant has such a maritime lien, but thathe enjoys some other right or lien conferred by some other relevant law of aforeign State, the Court would refcr tn that foreign law and would decide whetheror not to grant a remedy, only after ascertaining whether the right is indeedconferred by the foreign law and if so whether a remedy is available in Englishlaw to enforce rights of the same nature.
The plaintiff (The Government of the United States of America), claiminga sum of Rs. 76,222 as expenses incurred in the repatriation of tho crew of aship of United States Registry abandoned by the owners at the port of Colombo,moved the Colonial Court of Admiralty cf Ceylon in an action inrztn by writof summons which was served on the ship together with the warrant of arresi.The action was for the sale of the ship and for recovery of the sum of Rs. 76,222cut of the proceeds of sale. The plaintiff averred that the arrangements forrepatriation of the crew of the ship were made by the plaintiff through theUnited States Embassy at Colombo it, accordance with the provisions of theUnited States Code., section 678 of which provides as follows :—
“ It shall be the duty of the consul and vice-consuls, from time to time,to provide for the seamen of the United States who may be found withintheir districts, respectively sufficient subsistence and passages to some portin the United States, in the most reasonable manner, at the expense of theUnited States, subject to such instructions as the Secretary of State shallgive ..,
15 & 16LXIII
<J. N. R 930—2,033 (1/62)
338 H. N. 6. FERNANDO. J.—The Government of the United States of
America v. The Ship “ Valiant Enterprise ”
Held, (i) that, prior to the passing of the Colonial Courts of Admiralty Actof 1890, the general maritime law as administered in the High Cr urt in itsAdmiralty jurisdiction in England, which is the lex fori to be administered inCeylon, did not recognize uny maritime lien attaching to a ship in respectof a claim of the nature preferred by the plaintiff in the present action for therecovery of the expenses of repatriation. Accordingly, the plsintifTs claimmust fui).
that it could not be contended that the plaintiff stood in the shoes of theseamen themselves or that English law, because it recognizes maritime lienfor expenses of repatriation, will enforce the same lien upon the principle ofsubrogation in an action brought by a person who in fact has incurred theexpenses of repatriation. The English Admiralty Court does not recognizethe principle of subrogation in relation to maritime liens.
that even if, prior to 1890, English Law recognized liens or chargesarising out of claims' for payments of wages or repatriation expenses madeunder the statute law of the flag, and in respect of which a charge was createdby that law, such claims were not regarded as arising upon maritime liensenforceable by. actions in rem.
that neither the text books nor the precedents mentioned by an expertwitness in his evidence in the present case established the proposition thatunder American law the United States Government would have a maritimelien or any other charge enforceable by action in rem for the recovery ofexpenses incurred in pursuance of the statutory duty imposed by Title 46 ofthe United States Code. Hence oven if it be correct that the Court in Ceylonmust apply the United States law in ascertaining whether or not the plaintiffhad a maritime lien, or even if it be correct that the Court must enforce acharge arising under the common law of the United States, it wa3 not provedin the present action that the plaintiff was entitled to any maritime lien orcharge.
A-CTION in rem instituted by the Government of the United Statesof America against the s.s. “ Valiant Enterprise ” (or the proceeds of theship if sold) lying in the Port of Colombo.
H. W. Jayewardene, Q.C., -with N. Nadarasa, K. Kandasamy, O. P.Fernando and D. S. Wijewardene, for the Plaintiff.
O.O. Ponnambalam, Q.C., with C. Ranganuthan, V. K. Palasurdheramand R. L. Jayasuriya, for Messrs. Gill Amin Steamship Co. Ltd., andPapain Products Ltd. defendants.
S. J. Kadirgamar, with K. Viknarajah, R. lllayjperuma and SinhaBasnayake, for Capt. Metzger, defendant.
Cur. adv. vult.
June 30, 1961. H. N. G. Fernando, J.—
The S. S. “ Valiant Enterprise ” of United States Registry arrivedoutside the Port of Colombo on 10th February 1960. According to certaindocuments marked by Plaintiff’s counsel, the authenticity and correctness
H. N. G. FERNANDO. J.—The Government of the United/States of339
America v. The Ship “ Valiant Enterprise ”
of which, though not expressly conceded by the Defence, I assume forthe purposes of this judgment, the m ister on 11th February informed theUnited States consular authority iD Ceylon that he was short of suppliesand fuel and of funds to pay Port dues for entry into the Harbour. Themaster also lodged with the authority a Protest stating that the ownershad failed to pay the wages of the crew and to provide funds for suppliesand fuel, and he further surrendered the Ship’s papers to the Embassy.After consultation with the State Department, which apparently failedto get any response to its communications to the owners, passage for thecrew to the United States was arranged on a chartered aircraft, whichalso carried the crew of another ship similarly stranded in Singapore. ,The crew were removed from Colombo and the costs of the charter of theaircraft was defrayed by the United States Government, half of thecharter payment being in respect of this crew. These and certain minorexpenses are claimed to have amounted to Rs. 76,222.
On 23rd September I960, the United States Government moved thisCourt in an action in rem by writ of summons which was served on theShip on the 24th of September together with the warrant of arrest. Theaction was for the sale of the Ship and lor recovery of the sum ofRs. 76,222 out of the proceeds of sale.' No appearance was entered by theowners, but appearance was entered on behalf of the master and threeother parties who are now Defendants.
In the pleadings filed in the action, the Plaintiff, the United StatesGovernment, averred some of the facts stated above and further averred :—
** 8. The arrangements fcr repatriation of the crew of the saidShip were made by the Plaintiff-Petitioner through the United StatesEmbassy at Colombo in accordance with the previsions of the UnitedStates Code, section 678 of which provides as follows :—
‘ 46 United States Code
678. Subsistence to destitute seamen ; return to United States.
It shall be the duty of the consul and vice-consuls, from time to timeto provide for the seamen of the United States who may be foundwithin their districts, respectively sufficient subsistence and passagesto some port in the United States, in the most reasonable manner, atthe expense of the United States, subject to such instructions as theSecretary of State shall give. The seamen shall, if able, be bound todo duty on board the vessels in which they may be transported, accord-ing to their several abilities. ’
“9. As the provisions of the above statute obliged the AmericanEmbassy at Colombo to repatriate aDy and -all destitute Americanseamen, it was essential on the part of the Plaintiff-Petitioner to makethe necessary financial provision for repatriation.”
In paragraph 10 the Plaintiff submitted that te its claim is based on amaritime lien ”.
340
H. N. G. FERNANDO, J.—The Government of the Untied States of
America v. The Ship “ Valiant Enterprise ”
During the course of the argument before me counsel for the Plaintiffreferred to certain matters, which, if proved, may have been a basis forthe contention that the repatriation expenses had been incurred at theexpress or implied request of the master, and I informed counsel at thatstage that I could take no notice of such matters. The “ maritime lien **claimed in the Plaintiff’s pleadings was alleged to have arisen by reasonof repatriation effected in pursuance of a duty imposed by statute lawand not in pursuance of a request from the master ; in the exercise of mydiscretion, I did not think it reasonable that at so late a stage the Plaintiffshould be permitted to rely on a different “ cause of action ” dependingon facts not averred in the pleadings.
Apart from denying the right of the Plaintiff to institute this action,the master has answered that he was entitled to his wages and to reim-bursement for certain disbursements made on account of the Ship aggre-gating to about Rs. 166,000 and found himself without funds, means orwherewithal, to maintain the Ship and to maintain himself, and that theowners took no heed of his communications. He also pleaded that inFebruary 1960 he instituted proceedings No. 3 of 1960 in this Court forrelief but that the Chief Justice declined to issue a writ of summons.The master further pleaded that he was entitled in respect of his claimagainst the Ship to a preferred maritime lien and entitled also in thecircumstances to sell the Ship, which he had in fact sold in the exerciseof the alleged exercise of that right to Papain Products, Ltd., as nomineeof the Gill Amin Steamship Co., Ltd., for a sum of £ 14,000, the largerpart of which still remained unpaid because of the arrest of the Ship inthe present action. In addition this Defendant counterclaimed fordamages on account of the alleged unlawful arrest of the Ship by thePlaintiff. The other Defendants, Papain Products, Ltd., and Gill AminSteamship Co., Ltd., filed Answer much to the same effect and also counter-claimed for damages and made certain alternative claims against theShip to which for present purposes reference is not now necessary.
Counsel for the Plaintiff, after stating his case, made certain generalsubmissions, including inter alia the following :—
(а)that the United States Law does not create a maritime lien
enforceable by action in rem in favour of the master of a shipin respect of his unpaid wages ;
(б)that a master has no pow er to sell his ship even in such circumstances
as are averred in the Defendant master’s Answer ;
(c) that in any event United States Law prohibits the sale of a UnitedStates ship without the consent of the appropriate .authority,and that such consent had not been granted in this case.
On the basis that these propositions could be substantiated by argumentand evidence and would lead to the conclusion that none of the Defen-dants by w’hom answer has been filed has a status to contest the Plaintiff’saction, counsel invited the Court to decide in the first instance the question
341
H. N. G. FERNANDO, J.—The Government of the United States of
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whether any Defendant does have that status. This course I declinedto adopt for two reasons, firstly, because such a course would not obviatethe need for the Court to determine whether it has jurisdiction to enter-tain the Plaintiff's action, and secondly, because this being an actionin rent and one in which the Defendants (who prima facie appear to havean interest in the Ship) have raised the question of jurisdiction, it wouldbe of advantage to the Court to have the assistance of counsel for theDefendants in determining that question. Even if the Defendants hadno riohl to be heard, the special circumstances of this action renderedit desirable that I hear their counsel at least as amici curiae. Tliisquestion of jurisdiction was accordingly taken up for determination inthe first instance.
The arguments urged against the exercise of jurisdiction in this action,or such ol them as appear directly pertinent, have been :—
that under the general maritime law as administered in the High
Court in its Admiralty jurisdiction in England, which is thelex fori to bo administered by this Court, there is no maritimelien in respect- of a claim of the nature preferred by the Plaintiffin this action ;
that even if this Court is to apply the law of the United States
for the purpose of determining whether the Plaintiff holds a lienor charge over the Ship enforceable by action in real, then, eitherfa) United States JLaw does not confer such a lien or charge on thePlaintiff;
or (b) any such lien or charge as United States Law may confer onthe Plaintiff upon the principle of subrogation will not beenforced by the High Court, which does not recognise thatprinciple ;
or (c) this Court has no jurisdiction to enforce any such charge orlien except in proceedings in which the Ship is duly underarrest in an action instituted by some other claimant.
In regard to the first of these arguments, reference was made to theabsence from the United States Code of any express provision imposingany charge upon a merchant ship in respect of c: repatriation ” expensesincurred by the United States Government under section 678, Title 46 ofThe Code- or even imposing on the Ship’s owners the liability to repay suchexpenses. On the other hand, the English law contains express provisionfor the recovery of such expenses incurred by or on behalf of the Govern-ment of the United Kingdom.
The Merchant Shipping Act of 1906, having in sections 40 and 41provided for the maintenance and the sending to a proper return port ofdistressed seamen, proceeds in section 42 to declare that the expenses
342
H. N. G. FEBNANDO, J.—The Government-of the United States of
America v. The Ship “ Valiant Enter-prise ”
incurred by or on behalf of the Crown on account of a distressed seamanshall be a charge upon the ship and a debt due to the Crown from themaster or the owner of the ship for the time being. It is relevant to noticethat the Merchant Shipping Act of 1854 which was in operation as at1890 contained similar provision in section CCV of that Act, wherebywhen, a consular officer or any other person defrayed the costs of sub-sistence and passage home of a seaman in specified circumstances theexpenses so incurred were charged upon the ship and upon the ownerfor the time being. The section declared that such expenses could berecovered as a debt due to Her Majesty either by ordinary process oflaw or in the manner in which seamen are enabled in the Act to recovertheir wages.
The fact of the enactment of statutory provision for the recovery ofrepatriation expenses by the imposition of a charge on a ship in favourof the Crown so long ago as 1854, when sources of jurisdiction in Admiraltywere largely unwritten and not statutory, is a strong indication that theCourt of Admiralty had not previously recognised the existence of amaritime lien for the recovery of such expenses. The fact (which willpresently appear) tliafc corresponding statute law was enartod in Italy,indicates that a maritime lien of such a nature was probably unknownto the general maritime law of another ancient maritime State. In thesecircumstances, it is surprising to find that the claim of the Governmentof the United States to such a lien is not based upon the statute law of thatcountry.
Numerous decisions of the English Courts were cited by counsel onboth sides, before considering which it seems to me of fundamental im-portance to decide firstly the scope of the jurisdiction which this Courtenjoys under the empowering statute which is the Ceylon Courts ofAdmiralty Ordinance, No. 2 of 1891 (Cap. 7), section 2 of which isas follows :—
“It is hereby declared that the Supreme Court of the Island ofCejdon shall be a Colonial Court of Admiralty, and such Court shall havejurisdiction, subject to the provisions and limitations contained in theColonial Courts of Admiralty Act, 1890, over the like places, persons,matters and things as the admiralty jurisdiction of the High Courtin England, whether existing by virtue of any Statute or otherwise,and such Colonial Court of Admiralty may exercise such jurisdictionin like manner and to as full an extent as the High Court in England,and shall have the same regard as that Court to international law and thecomity of nations ”.
The limits of the jurisdiction of a Colonial Court of Admiraltyestablished in pursuance of legislation corresponding to the Ceylon Courtsof Admiralty Ordinance, No. 2 of 1891, were judicially dofined by the Privy
H. N. G. FERNANDO, J.—The Government of the United States of 343
America v. The Ship “ Valiant Enterprise ”
Council in the case of The “ Yuri Mam ” 1, which decided that section 2of the Colonial Courts of Admiralty Act of 1890 (the “ parent ** statute ofour Ordinance) limits the jurisdiction of the Colonial Court to tho admi-ralty jurisdiction of the High Court of England as it existed at the passingof the Act. It was held accordingly that the extension of the admiraltyjurisdiction of the High Court by English legislation of 1920 and 1925does not apply to a Colonial Court of Admiralty. Even if the decision inThe Yuri Mam 1> not being one on appeal from a Ceylon Court, doesnot bind me, I see no reason which would justify disr gard of it. Norcan I agree that the provisions of the Civil Law Ordinance of Ceylon(Cap. 66) render the Privy Council decision inapplicable. For thepurposes of the present context the relevant provision of the Civil LawOrdinance is :
** 2. the law to be hereafter administered in this Island in respectof all contracts or questions arising within the same relating to shipsand to the property therein, and to the owners thereof, the behaviourof the master and mariners, and their respective rights, duties and
liabilities,and generally to all maritime matters, shall be
the same in respect of the said matters as would be administered inEngland in the like case at the corresponding period, ”
That provision only means in my opinion that this Court must administerthe substantive law which would at the given time be administered inmaritime matters by the High Court, pro vided of course that this Courthas aliunde the jurisdiction to entertain a suit in respect of the particularmatter involved. I am satisfied that the jurisdiction of this Court is,as stated in The Yuri Mam 1, oidy that jurisdiction which the HighCourt of Admiralty exercised at the time of the passing of the ColonialCourts of Admiralty Act of 1890.
The basis of the Plaintiff’s action is that the Plaintiff, having beenf obliged ” by section 678 of Title 46 of the United States Code to re-patriate the seamen formerly serving on “ The Valiant Enterprise ”,has a maritime lien attaching to the Ship for the recovery of the expensesof repatriation. At an early stage of the argument counsel desired tolead evidence in order to prove that under United States Law the mari-time lien enjoyed by seamen in respect of their viaticum enured to thePlaintiff by subrogation and could be enforced as such because thePlaintiff thereby “ stands in the shoes ” of the seamen themselves. Idid not at that stage permit the evidence to be led, for it seemed to methat a British Court of Admiralty, whose practice this Court must follow,would not apply the law of the flag for the purpose of determining whetheror not a plaintiff has a maritime lien enforceable by an action in rem.
In Dicey's “ Conflict of Laws ” (7th Ed. p. 1101), the law is stated asfollows :
1Snta Viscosa Sociela Nazionale Industria Applicazioni Viscosa v. The Ship * YuriMaru 1927. A. C. 906 ; 43 T. L. R. 698 ; 17 Asp. M. L. C. 322.
344
H. N. G. FERNANDO, J.—The Government of the United States of
America v. The Ship “ Valiant Enterprise ”
“ Questions of priorities are, in some cases, governed by the lex fori,which, in this connection, has two functions. First, it must determinethe nature of the foreign claim. Thus in an English Court the questionwhether a creditor has a maritime lien must be decided in accordancewith English law. Where the foreign transaction which is alleged togive rise to the lien cf a type with which the English law is familiar,no difficulty arises in the application of this principle. But where theforeign transaction is one with which English law is not fr miliar, regardmust be had to its proper law in order to see what rights arise out of thetransaction under that law : the court then decides whether thoserights amount to what, according to English notions, is a maritimelien. Having determined the nature of the foreign claim, the lex forinext determines its rank.”
The correctness of these propositions is in my view established byEnglishcase law. In The Milford x, an action in which the master of an Americanship sued in an English court for wages, the owners appeared under pro-test and pleaded that by the American law the master of an Americanship has no lien upon, or right of action against, the freight for wagesearned as master. Dr. Lushington, after stating that the subject hadbeen discussed in another case some time earlier and that he had takenthe matter into full consideration, applied the lex fori for the purposes ofdetermining whether the maritime lien existed and held that the relevantlaw applicable was the general maritime law as formerly used in the courtand as modified and extended by statute. Having referred to the earlierEnglish Jaw, which disentitled a master from suing for wages in anadmiralty court, Dr. Lushington decided that section 191 of the MerchantShipping Act of 1854, wliich gave the master the same rights and remediesfor the recovery of his wages as seamen have, applies even to a foreignship and its master sizing within British jurisdiction. Despite thereforethe averment that the American law conferred no maritime lien for amaster’s wages, the court held that such a lien was conferred by Englishlaw and could be enforced accordingly.
In The Tagus 2, where the master of an Argentine vessel made a claimfor wages and disbursements, Phillimore, J. held himself bound unquestion-ably by the decision in The Milford1 to hold that a master of a foreignship suing in an English court has as good a maritime lien for his wagesas has the master of an English ship. He adverted to the difficulty ofconstruction of the language and the content of the relevant provisionof the Merchant Shipping Act; it does seem, having regard to the termsof section 191 of the Merchant Shipping Act of 1854 and of the corres-ponding section of the existing English statute, that the conclusion thatthe section does apply in the case of a foreign ship can only be reached withdifficulty, and that the question whether the section applied might, asEhillimore, J. himself observed, have received a different answer if it were 1
1 The MUford, (1858) 166 English Reports, 1167.
* The Tagus, (1903) Probate, 44 ; 87 L. T. 598 ; 9 Asp. M. L. C. 371.
H. N. G. FERNANDO, J.—The Government of the United States of 34^
America v. The Ship “ Valiant Enterprise ’*
res integra. But neither in The Tagus1 nor in Reg. v. Stewarta, wherea similar difficulty arose as to the construction of another provision of theMerchant Shipping Law, was doubt expressed as to the correctness ofDr. Lushington’s opinion that the lex fori applies in order to determinewhether a claimant has a maritime lien.
These cases were considered by the English Court of Appeal in TheColorados. There the claimants were a company which had suppliednecessaries to the ship and the Credit Maritime Fluvial as mortgageesunder a French deed of mortgage. The court entertained evidence asto the French law governing the mortgage, which Hill, J. accepted asestablishing that under French law the mortgagee had a ius in reminvolving a right to proceed by legal process for the seizure and sale ofthe ship, a right travelling with the res into whosesoever hands it maycome. He also held that under French law the claim of a necessariesman had priority over the claim of a mortgagee. This priority theCourt of Appeal did not recognise, for the reason that questions ofpriority must be decided according to the lex fori. In the judgmentsdelivered in the Court of Appeal, it was pointed out that the right whicha mortgagee enjoyed under French law, namely, a right to have the shipseized and the proceeds applied to payment of the mortgage debt was aright closely resembling a maritime lien and would be (enforced as suchby the English law in accordance with its own order of. priorities. It isuseful to cite in extenso the following paragraph from the judgment ofAtkin, L.J. :
“ When an action in rent has been brought in these1 courts in respectof a ship, the court by its decree controls the money which representsthe res as a result of sale or bail, and directs payment to be made tosuch claimants as prove their claim in the order of priority directedby the court. To give the necessary directions the court may have toconsider foreign Jaw in order to ascertain whether the claimant has anyand what right in respect of the res at all. For instance, the claimantmay claim a right of property in the ship granted to him abroad. Thecourt must examine the lex loci contractus—I assume for argument’ssake this to be relevant law—to see whether any right of propertyis so given, and the nature of it. A claimant claims as an Englishnecessaries man ; his right is only to have the court award him a parti-cular remedy. He has no right to the ship or the proceeds independentof the remedy. A claimant claims as possessing a maritime lien. Thismight appear to be an intermediate case as a maritime lien does give aright against the ship, which continues notwithstanding a change ofownership. Nevertheless in determining whether there exists a mari-time lien, the court will apply the lex fori, and will give effect to thelien as it exists by English law: (see the case of The Tagus: The Milford.).’* 1
1The Tagus, (1903) Probate, 44 ; 87 L. T. 598 ; 9 Asp. M. L. C. 371.
Reg. v. Stewart, 80 L. T. Reps. 600 ; (1899) J Q. B. 964 ; 8 Asp. M. L. C. 534.
The Colorado, (1923) Probate, 102 ; 128 L. T. Rep. 759 ; 16 Asp. M. L. C. 145.
346 H. N. G. FERNANDO, J.—The Government of the United States of
America v. The Ship “ Valiant Enterprise "
In my understanding of the English Law as thus explained a distinctionis here drawn between two types of foreign claims. If the claimantseeks to establish a right of property in a ship granted to him abroad,the court must examine the lex loci contractus “ to see whether suchright of property is so given and the nature of it If there is such aright and it is one of a nature known to English law, that remedy affordedin the English court will be granted to the same extent and subject tothe same order of priorities as would apply in relation to the correspondingright arising under English law. But if the claim is that a maritime lienexists, that is to say, the right in rem attaching to a ship known to thegeneral maritime law, then the question whether the maritime lienexists has to be answered by reference to the lex fori, namely the Englishlaw. As pointed out in Phillimore, J’s judgment in The Tagus1,English law for this purpose means, not only the common law as originallyapplied in the court of admiralty, but also that law as altered by Englishstatutes. To put the matter in a simple form, I can well imagine a-Judge sitting in Admiralty in England, a country whose mariners,merchants and lawyers had much to do with the formation and developmentof the Law of the commerce of the sea, saying to a claimant averringthat he had a maritime lien known to that Law : “ The courts of thiscountry recognise the maritime liens known to that Law and apply thatLaw and that Law as this court knows it will be applied in order todetermine whether you have or have not such a maritime lien ”. Onthe other hand, if the claim is, not that the claimant has such a maritimelien, but that he enjoys some other right conferred by some other relevantlaw of a foreign State, one can equally well understand that an Englishcourt would refer to that foreign law and would decide whether or notto grant a remedy, only after ascertaining whether the right claimedwas indeed conferred by the foreign law and if so whether the Englishcourt knew of a remedy available to enforce rights of the same nature.
Before passing from this line of cases I should refer at this stage toThe Livietta2, to which reference may again become necessary inanother connection. There had been a consolidated action of salvageagainst the Italian brig “ Livietta ” in which the claims of the salvorsagainst the brig had been paid out of the proceeds of the sale of the brig,and a balance of some £60 remained in court thereafter. The solicitorswho had appeared for the Defendants in the salvage action applied tothe court for payment of this balance in satisfaction of their costs. Thecrew of the brig had been repatriated to Italy at the expense of theItalian Government, which opposed the solicitors’ application on theground that the Government was entitled to a ben upon the proceedsin court in respect of the repatriation expenses. It was proved that, byItalian statute law, the repatriation expenses incurred by agents of theItalian Government are chargeable against the ship and also that *
*The Tagus, (1903) Probate, 44 ; 87 L. T. 598 ; 9 Asp. M. L. C. 371.
The Livietta, (1883) 8 P. D. 209 ; 49 L. T. Rep. 411 ; 5 Asp. M. L. C. 151.
H. N. G. FERNANDO, .T.—The Government of (he United States of
America v. The Ship “ Valiant Enterprise *’
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priorities to the proceeds of sale are privileged in the following order :the expenses of sale, the expenses of salvage, and out of the residue“ the keep of the captain and crew, indemnity for their return to theircountry, and .wages of the said crew, etc.
The solicitors relied on provision in an English statute of generalapplication which enabled the court to declare an attorney or solicitoremployed in a suit entitled to a charge for his costs and expenses uponthe property recovered or preserved in the suit. In rejecting theirclaims, the court held that the section was not intended to give a solicitorpriority over claims giving a lien which could have been enforced in asuit by other persons against the property which was the subject oflitigation ; and accordingly the claim of the Italian Government wasgiven priority. But in recognising the claim of the Italian GovernmentSir James Hannen did not anywhere refer to that claim as being onearising upon a maritime, lien. Having referred to the similarity betweenthe provisions of the Italian statute law by which the repatriation expensesincurred by the Government were chargeable upon the ship and to thecorresponding statutory charge imposed upon a ship for repatriationexpenses incurred by British consular officers, the judgment proceeds torecognise the charge created by the Italian law and thereafter to statethat the charge “ must be looked upon as a part of the terms upon whichseamen were engaged for the voyage ”. There is little room for doubtthat the Italian Government’s claim in The Limetta1 was treated asone falling within the second category of claims which I have mentionedabove with reference to the judgment of* Atkin, L. J. in The Colorado 1 2,that is to say, not a claim of a maritime lien, but a claim of some otherright or lien granted by foreign law. Having ascertained the existenceand the nature of the right claimed, the court allowed the Italian Govern-ment the corresponding remedy available under the English law for aright of the same nature. On this aspect ol the matter it seems to methat the decision in The Livietta1 is not merely reconcilable but is inperfect accord with the general statement of Atkin, L. J.
The Plaintiff in the present case has claimed a maritime lien enforceableby action in rem on the basis that such a lien is granted by the law of theUnited States to the Government of that country for expenses of re-patriation incurred under the section of the United States Code to whichI have already referred. The Plaintiff’s pleadings did not aver that thelex fori, the English law, recognises that a foreign government has amaritime lien, under general maritime law, for the recovery of expensesincurred in the repatriation of seamen to the foreign country from aBritish port. I do not consider that this omission in the pleadings shoulddebar the Plaintiff from succeeding in this action if indeed the Englishlaw does recognise the existence of a maritime lien in such circumstances.What in fact counsel for the Plaintiff has contended for in this connection
1The Livietta, (1883) 8 P. D. 209 ; 49 L. T. Ilep. 411 ; 5 Asp. M. L. C. 151.
2The Colorado, (1923) Probate, 102 ; 128 L. T. Rep. 759 ; 16 Asp. M. L. C. 145.
348 H. N- G. FERISTAKTOO, J.—The Government oj the United Stales of
America v. The Ship “ Valiant Enterprise ”
is that the English law, having first recognised as a basic right a seaman’smaritime lien for his wages and for expenses of repatriation, will enforcethe same lien upon the principle of subrogation in an action broughtby a person who in fact has incurred the expenses of repatriation.Except however, for one English case to which I will presently refer,none of the numerous judgments of the English Admiralty Court to whichcounsel on both sides have drawn my attention contains even any.mention of this theory of subrogation in relation to maritime liens.The claims in which the courts recognised rights in respect of the supplyof necessaries to ships and the payment of wages of a master or seamanappear to me to fall into four classes. Firstly, those in which a masteror seaman has directly preferred claims against the ship or against pro-ceeds of sale for the recovery of sums due as wages. Secondly, claims-preferred by masters for disbursements made by them in payment of•wages of in payment for necessaries required for the ship. Thirdly,claims made directly against the ship by persons who have themselvessupplied the necessaries. Fourthly, claims by persons who made advancesintended to be applied, and in fact applied, for any of the purposesenumerated in the preceding items. In regard to these claims, theEnglish courts invariably recognised the seaman’s lien for his wagesand with one exception (the decision in The Sara l, subsequently set atnought by an Act of 1889) invariably recognised the master’s lien for hiswages and disbursements. In regard to necessaries it is now settledlaw that the supply of necessaries creates no ben, but only a right toarrest the ship and thereby render the ship from that stage chargeablefor the debt. (The Henrich Bjorn7-.) For present purposes it is notnecessary for me to discuss these recognised claims of the first threeclasses which I have enumerated above ; but what have to beconsidered with care are the claims falling within the fourth class, whichperhaps may appropriately be described as claims where persons, otherthan masters of a ship or supphers of necessaries, have been ableto recover in actions in admiralty moneys provided as wages to seamenor masters or moneys provided to masters for the purpose of the procure-ment of necessaries or of making privileged payments or of money's paidfor necessaries suppbed, and thus to ascertain if possible upon whatprinciple recovery is allowed in such cases. Roscoe, in his “ AdmiraltyPractice ” {5th Ed. p. 207) says :
“ A person who pays for necessaries suppbed to the ship, has against"the ship and her owners as good a claim as the person who actuallysupplied them, and he who advances money to the person who thuspays for the purpose of thus enabling him to pay stands in the sameposition as the person to whom the money is advanced.”
1 The Sara, {1889) 14 App. Cos. 209 ; 61L. T. Rep. 26 ; 6 Asp. M. L. C. 413.
a Northcote v. Owners of The Uenrich Bjorn, {H L>.). {1886) 11 App. Cos. 270 ; 55L. T. Rep. 666 Asp. JA. 1/.. G. 1.
H. N. G. FERNANDO, J.—The Government of the United States of
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In The William F. Safford1 the ship was arrested on 8th December1859 and sold in an action oi necessaries and the proceeds were paid intothe Registry. Thereafter on 15th March 1860 judgment was pronouncedin favour of a claimant under a bond of bottomry. On the same day anaction of necessaries was entered on behalf of one Da Costa for wagespaid by him in November 1859 to the crew by directions of the master.One dispute was upon the question whether the holders of the bottomrybond should have preference over Da Costa’s claim and on this matterDr. Lushington pronounced as follows :
“ A bond is entitled to precedence over all other claims exceptwages, or a subsequent bond or salvage claim. Seamen’s wages,however, come first of all, according to the established practice of thecourt; and I am of opinion that Da Costa’s claim is in the nature ofwages, and must therefore be the first paid. Jf he had not advanced themoney, the seamen would have no doubt arrested the ship, and en-forced their right to priority of payment. I shall therefore directDa Costa’s claim to be satisfied first, and next the bondholders.”
The payment by Da Costa to the crew was therefore not regarded merelyas a payment for necessaries but one in the nature of wages. Althoughhowever the point is not mentioned in the judgment what seems to beimportant for the present purposes is that Da Costa’s claim was that hehad made the payment ** by directions of the master on account of theship ”.
In The Andalina1 2 the proceeds of sale of the ship in an action fornecessaries were in the custody of the Admiralty Division of the HighCourt. In consequence, a wages action by the seamen in which theyhad recovered judgment in a County Court, as well as a necessaries actionin which one Meek had also obtained judgment in the County Court forsums paid by him for light dues and towage, were both transferredto the High Court. In regard to his payment for towage it was contendedthat this was in the nature of salvage and should therefore have priorityover the seamen’s claim. This contention Butt, J. did not accept and lieemphasised that the seamen’s claim and their lien were unquestionable.Plaintiff’s counsel in the present action strongly relied on this decisionas one which emphasised the fundamental importance of a seaman’smaritime lien ; but I do not find it of assistance in considering what rightif any is enjoyed by a person who makes a payment out of Court in satis-faction of seamen’s w'ages.
In The Lyons3, the same plaintiff instituted two mortgage actionsagainst a ship which was sold by order of the court. Subsequently anaction in rem was instituted by one Lafone to recover sums of moneypaid by him for equipment and repairs as well as for wages, pilotage and
1The William F. Safford, (I860) 2 L. T. Rep. 301.
2The Andalina, (1886) 12 P. D. 1 ; 56 L. T. Rep. 171 ; 6 Asp. M. L. C. 62.
3The Lyons, (1887) 57 L. T. Rep. 818 ; 6 Asp. M. L. C. 199.
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towage. Lafone opposed the payment of the sale proceeds to the mort-gagee on the ground generally that by agreement with the owners hehad undertaken the wharf arrangements of the vessel, engaged a captainand crew for a voyage to and from Antwerp, and had paid all outgoingsincluding wages. The question was whether this payment for wages shouldtake precedence of the mortgage claims for the reason that “ the wages-item is in the nature of a wages claim and is entitled to the same priorityButt, J. during the course of the arguments observed that Lafone shouldhave obtained permission of court before making the payment and heldin his judgment that the contention that Lafone was entitled to prece-dence in respect of the wages “is a strong proposition which 1 cannot-accept Counsel for Lafone had relied on The William F. Safford1.But if both cases were correctly decided (as I assume they were) thedistinction seems to be that, in The William F. Sqfford xt the claim didnot arise after some arrangement with the owners justifying the inferencethat there was reliance on the credit of the owners and not of the ship,but instead was based upon a payment of wages at the instance of amaster enjoying implied authority to pledge the credit of the ship.
The distinction just mentioned is referred to in The Orienta2. Byagreement with the owners of “ The Orienta ” certain claimants in thiscase had supplied coal to the ship upon terms previously arranged, namelypayment by Captain’s draft drawn in favour of the Firm upon the owner.Two bills of exchange thus drawn were accepted but not paid by theowners. The Firm contended that they were entitled to a maritime lieufor the price of the coal supplied. The President of the Court first con-sidered the provisions of section (1) of the Merchant Shipping Act of 1889which was enacted to confer on the master a maritime lien for the recoveryof disbursements properly made by him on account of the ship and theninquired what the criterion was to deteimine what disbursements andliabilities of the master for a ship can give rise to a maritime lien. “ I amnot aware ” he said “ of any authority which shows that the captain wasever supposed to be able to create a maritime lien upon the ship exceptwhen within the general scope of his authority he could have pledged theowner’s credit ”. The case before him he held to bo merely one where themaster had issued the bills in pursuance of express authority and of aprior agreement to that effect between the owners and the suppliers. Inthis view a creditor could claim a maritime lien only if the owner's creditwas pledged by virtue of implied general authority and not of any expressauthority.
In The Ripon City 3, the master brought an action in rem against theowners to recover moreys alleged t be due for wages and for liabilitiesincurred by him for coal supplied to the ship. The coal had been pur-chased at Beunos Aires and La Plata and in each case the master had
» TV H am F. Safford, (I860) 2 L. T. Rep. 301.
The Orienta, (1895) P. 49 ; 71 L. T. Rep. 711 ; 7 Asp. M. L. C. 529.
The Ripon City, (1898) P. 78 ; 78 L. T. 296 ; 8 Asp. M. L. C. 391.
H. NT. G. FERNANDO, J.—The Government of the United Slates of351
America v. The Ship “ Valiant Enterprise "
•drawn a bill upon the owners in favour of the suppliers. The bills wereaccepted but dishonoured. It was held that the liabilities incurred bythe master were incurred on account of the ship and that a master had amaritime lien under section 167 of the Merchant Shipping Act of 1894for those liabilities. The case of The Orienta1 was distinguished on theground that unlike in that case the master had obtained the coal in theordinary course of his employment as master and by so doing pledged thecredit of the owners. The following observations of Barnes J. are ofmuch assistance in ascertaining the principle upon which the act of amaster can create a lien in favour of another :
“ The result of my examination of these principles and authoritiesis as follows :The law recognises maritime liers in certain classes
of claims, the principal being bottomry, salvage, wages, master’s wagesdisbursements and liabilities and damage. According to the definitionabove given, such a lien is a privileged claim upoD a vessel in respect ofservice done to it, or injury caused by it, to be carried into effect by legalprocess. Jt is a right acquired by one over a thing belonging to another—a jus in re aliena. It is, so to speak, a subtraction from the absoluteproperty of the owner in the thing. This right must therefore in someway have been derived from the owner either directly or through the acts ofpersons deriving their authority from the owner”
The principle appears to be that the master himself can only claim amaritime lien for a liability incurred purely in pursuance of his impliedgeneral authority to pledge the owner’s credit for certain purposes. Itwould follow that, if some “ third party ” may claim a maritime lien inconnection with such a liability he may do so on the basis of a supply orpayment to the master which if made by the master himself would havegiven rise to a lien.
Of much interest is the judgment of Hill J. in The Petone 1 2 3, in whichmany of the earlier decisions were carefully considered. I do not find itnecessary to examine the facts of this case and am content to reproducesome of the citations and observations of the learned Judge. He citesthus from the judgment of Dr. Lushington in the early case of The NewEagle 3 .•“ When I first read the papers on which this motion was to be
founded I feH a strong disposition to support the claim of Mr. Brambles,so far as the law would enable me to do it, because the seamen had aright to resort to this court and take the body of the ship as the means ofobtaining payment of their wages ; but the law of this country has alwaysstruggled against such claims being allowed. I must be guided by thecase of The Neptune {1834) 3 Hogg. Adm. 129 and I know of n principlerecognised by the common law that allows any person, who has madeadvances on account of a ship, unless it be bottomry, to come here and
1 The Orienta, {1895) P. 49 ; 71 L. T. Rep. 711 ; 7 Asp. M. L. C. 529.
: The Petone, {1917) Probate 198 ; 14 Asp. M. L. C. 283.
3The New Eagle, {1846) 4 Notes of Cass. 426.
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make a claim **. He referred to the practice of the admiralty courtwhereby, once the res is under arrest, the court could on application madeon behalf of persons interested in the res as bondholders or otherwise forleave to pay off the crew, allow such leave on terms that persons so paidwould be entitled to recover in the same order of priority as the crewthemselves. Hill, J. thereafter observes: “Notwithstanding The W. F.Saffordx, it must, I think, be taken that the considered opinion of .Dr. Lushing ton was that no one had a right to pay off wages and claimagainst the ship. Upon whatever ground of convenience the bond-holder or other person was allowed to pay off wages and claim against, the-ship, the fact that the leave of the court was necessary is quite inconsistentwith any doctrine that he who pays off wages stands in the shoes of andhas the maritime lien of the seamen. If that right existed, Dr.Lushington’s warning was an empty threat ”. In the view of Hill, J.
“ the weight of authority is strongly against the doctrine that the manwho had paid off the privileged claimant stands in the shoes * of theprivileged claimant and has a lien, whether it be regarded as a generaldoctrine or as applied to wages only ”. This view of Hill, J. is directly andheavily opposed to the argument of counsel before me that, because theUnited States Government provided for the crew of “ The Valiant Enter-prise ” the means of repatriation which it was the owner’s duty to provide,the Government now enjoys the same maritime lien as the crew could haveenforced against the ship.
The Pstone judgment is the only one brought to my notice in whichthere is even any mention of the doctrine of subrogation. Such mentionwas first made in the argument of counsel for the plaintiff in that case,where he said that “ the doctrine stated by Phillimore, J. in The Tagus 2is merely an application of the principle of subrogation ”, referring itwould seem to this passage in the judgment from The Tagus 2 :
“ I follow in that respect the decision in The Albion, which has beencited to me, and I think that is the law, but if the whole disbursementsare. as apparently they are (they will have to be looked into if necessary)merely payments of wages of the crew, who might have seized theship, then I think the doctrine which this court has often applied—that the man who has paid off the privileged claimant is standing inthe shoes of the privileged claimant—should be applied, and I thinkthe master has a lien for any disbursements made, although he wasnot- master, in payment of the wages of the crew.”
Counsel for the Plaintiff in the present action relies equally strongly onthat same passage for his contention that the English courts of admiraltydo recognise the principle of subrogation.
I myself am quite unable to take these remarks of Phillimore, J. aspurporting to be anything but a statement, of the law applicable in the 1
1 The William F. Safford, (I960) 2 L. T. Rep. 301.
• The Tagus, (1903) Probate, 44 ; 87 I>. T. 698 ; 9 Asp. M. L, .C. 371.
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context of the case before him. The master of “ The Tagus ” had.undoubtedly paid the wages of the crew ; but he did so of necessity andand in the interests of the owners and of the ship, in that but for suchpayment the crew might either have refused to serve or have causedthe ship to be arrested, any of which events would have terminated thevoyage. Having regard to the earlier decisions such as The Ripon. City 1it seems to me that PhiLlimore, J. was merely deciding that, upon thefacts before him, the master of “ The Tagus ” in paying the wages ofthe seamen was acting in the course of his implied general authority topledge the credit of the ship in the interests of the continuance of theship’s voyage. His action in so doing was of benefit both to the shipand to the owners, a fact which in Phiilimore, J.’s opinion justified theapplication of the doctrine that persons paying off a privileged claimwould stand in the shoes of those claimants themselves and thereforethemselves have the same maritime lien.
With reference to the invocation of the principle of subrogation Hill, J.said in The Petone 1 2 “ I know of no principle of English law whichsays that one who being under no compulsion and under no. necessityto protect his own property, but as a volunteer, makes a payment to aprivileged creditor, is entitled to the rights and remedies of the personwhom he pays What counsel for the Plaintiff has argued before meis that, in terms of this dictum of Hill, J., the United States Governmenthaving incurred the expenditure of repatriation under the United Statesstatutory law, is not a volunteer, and therefore must be held to haveinherited the seamen’s maritime lien. But this argument ignores thereference in the dictum “ being under no compulsion and under nonecessity to protect his own property ”. It ignores also the fact that inThe Tagtts 3 the master first satisfied the court that the paymentswhich he made were made both under necessity to protect his owninterests as well as the interest of the ship for both those interests wouldhave been prejudiced by a frustration of the voyage. It does not in myopinion suffice for a claimant to say that because he paid off a privilegedlien holder and was not a volunteer, he therefore holds the lien. Inorder that he may “ stand in the shoes *' of the lien holder in the sense inwhich I understand Phiilimore, J. to have used that expression, he mustfurther satisfy the court affirmatively that his intervention was madeon the faith of the credit of the ship and that but for his interventionthe interests of the ship and of its owners would have been seriouslyprejudiced.
Counsel for the Plaintiff himself relied on the practice referred to inmany decisions of the English courts whereby after arrest of a ship someperson interested will be permitted to pay expenses of repatriation andthereafter to rank in priority in place of the repatriated men. He
1 The Ripon City, (1898) P. 78 ; 78 L. T. 296 ; Asp. M. L. C. 391.
a The Petone, (1917) Probate 198 ; 14 Asp. M. L. C. 283.
3 The Tagus, (1903) Probate, 44 ; 87 L. T. 598 ; 9 Asp. M. L. C. 371.
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argued that this practice was an. application of the principle of subrogation.
It seems to me that the. answer to this contention is to be found againin the judgment of Hill, J., where he refers to the 1822 order of LordStowell in The Kammerhevie RosenJcrants 1 where an application onbehalf of bondholders was granted to permit them “ to pay off the wagesof the crew, in order to save the expense arising from their detentionon board, and to decree that they should be reimbursed their advancesout of the proceeds of the ship, prior to the satisfaction of any otherclaim thereon I myself do not End any need to rely upon any specialdoctrine of law in support of the proposition that, once a ship is underarrest and a privileged seamen’s claim for wages or for viaticum is assertedand acknowledged, the court has the power to permit some party topay off that claim on the understanding that the court will afford tohim who pays the claim that same priority which the seamen themselvescould have asserted.
The decision of the admiralty court of New Zealand in The Zita 1 2at first sight does support the Plaintiff for the last sentence in the judg-ment reads “ The plaintiff in this case is not a volunteer, and upon theauthorities I think he is entitled to the benefit of the master’s statutorylien in respect of his claim for advances, wages and necessaries Butif I can assume the head note to be correct, the advance was made at therequest of the master, and in any event it is stated at the commencementof the judgment that “ If the action of the master requires ratificationit has been ratified by the owners who have acknowledged the claim andrepeatedly promised payment Although there is no reference to thepoint in the judgment, I am surely justified in assuming that the plaintiffin The Zita 2 was not merely not a volunteer, but a person who to usethe language of the Petone judgment was either under compulsion orunder necessity to protect his own property, or else a person without whoseassistance the voyage of “ The Zita ” would have been frustrated. Evenif the Scottish case of Clark v. Pouring Co. 3 4, (the report of which isnot available to me) correctly decided that a lien for seamen’s wages canbe assigned, the pleadings in the case before me do not raise the questionwhether the maritime lien of the crew of “ The Valiant Enterprise ” wasassigned to the Plaintiff in this action.
There have been many cases in which a person advancing moneysfor the purpose of the purchase of supply of necessaries to a ship hasbeen able to recover the debt by action in rem against the ship. Dr.Lushington in his judgment in The Alexander 4 observed that section 6of the Act of 1840 “ conferred upon this court the jurisdiction in thesematters or rather perhaps revived an ancient jurisdiction long prohibi-ted ”, and that the statute was intended to ** give a new remedy which was
1 Kammerhevie RosenJcrants, (1822) 1 Hagg. Adm. 62.
* Rhind v. * The Zrita Kew Zealand L,. R. (1923) p. 369.
3Clerk v. Poxerring d> Co., (1907-8) S&ss. Cos. 1168.
4The Alexander, (1842) 166 English Reports, 602.
H. N. G. FERNANDO, J.—The Government of th& United Slates of 355
America v. The Ship “ Valiant Enterprise **
rendered necessary in the peculiar cases of foreign ships He said alsothat the condition imposed by this section upon the oourt is ** that thecommon law must not make the owners of a foreign ship Liable for thesupply of any articles on which under similar circumstances if residenthere they would not be responsible in a court of common law. 1 believethat upon this subject there is no real distinction between that lawand the law maritime **. He accordingly ascertained the legal accepta-tion of the term “ necessaries ” by reference to earlier cases in whichactions relating to necessaries were decided under the common law andrelied upon a statement in Abbott's treatise oil Shipping “ that in-order toconstitute a demand against the owners it is necessary that the suppliesfurnished by the master’s orders should be reasonably fit and properfor the occasion or that moneys advanced for that purpose should at thetime appear to be wanting for that purpose”, and also upon the statementof Lord Ellenborough “ in strictness a claim of this kind is limited toarticles supplied through necessity but where the same necessity existsmoney may be supplied as well as goods and the amount recovered
What is important for present purposes is to note that in actions inadmiralty decided quite soon after the enactment of the Act of 1840 theEnglish courts did not regard the person advancing money for the supplyof necessaries as thereby standing in the shoes of the necessaries munhimself and succeeding to his right, but instead applied the former commonlaw principle that in certain circumstances the provision of the money gavethe same actionable right as did the supply of the necessaries.
The observations of Hill, J. in the much more recent case of The Moqileff1makes it clear that the English courts continued to regard the matterin the same light:It is well settled that moneys advanced for the
procuring of necessaries stood on the same footing as necessaries suppliedThere is here no invocation of any principle of subrogation as beingthe basis of the claim made by a person advancing money for the pur-chase or supply of necessaries. Equally it seems to me that the Englishcourts in recognising a claim by a person, whether a master or s«uneother, paying off the wages of a crew, in order to prevent their arrestof the ship and thus to facilitate the continuance of a voyage, were notrelying on any principle of subrogation but were rather recognising adirect right accruing by re^vson of the advance.
I have lastly to consider the decision of the Ceylon Court. ViceAdmiralty (<) reported in / Broome's Reports, p. 202. The ship *' Fleur deLotus ” had apparently been sold by order of court upon a judgmentobtained by a Company which had towed the ship to Ceylon from Singa-pore and the court thereafter considered the order of priority of variousclaims. In so doing it was decided that ” claims for payment- of sub-sistence and the return passages of seamen must rank with the claims forwages of seamen ”. The report indicates that passage money had been
1 Moffiteff, 11921) Probate 236 at page 241 ; 16 Am. M L. C. 476
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America v. The Shtp “ Valiant Enterprise ’’
paid both, by the Ceylon. Government and by other interested persons,and the judgment certainly decided that claims on this account wouldhave priority over the claim for towage. But the facts as reported arenot of much assistance to me, for it is not clear whether the ship was ofBritish or foreign registry or whether the disbursements for passages weremade with or without a request in that behalf by the master.
In so far as the High Court of Admiralty did prior to 1890 recognisea lien or charge arising by reason of the “ payment off ” of wages orrepatriation expenses, claims allowed by the decisions appear to be ofthree classes :—
claims for payments made of necessity on the credit of the ship
or at the request of the master ;
claims for payments made, after the arrest of the ship, with the
prior authority of the court;
claims for payments made under the statute law of the flag, and in
respect of which a charge is created by that law.
Even if the present claim is by analogy within the third class, the decisionsdo not establish that the High Court recognised such claims as arising uponmaritime liens enforceable by actions in rem.
Belying on The Livief.ta 1, where the court recognised and enforced,a charge on a vessel created by Italian statute law in favour of the Govern-ment for the recovery of expenses of repatriation of a crew, counsel for the-Plaintiff invited me to hold that, just as much as a statutory foreigncharge conferring a right in rem against a vessel was thus enforced,equally this court should enforce a charge which according to counsel’sargument United States Law, although not statutory, imposes upon aship for the recovery of repatriation expenses incurred in pursuance ofsection 678 of Title 46 of the United States Code. The question whetherthe United States Law does indeed impose such a charge is dealt withlater in this judgment. But at this point I am concerned only with thequestion whether this court has jurisdiction to order the arrest and sale of aforeign ship at the instance of a plaintiff who asserts right alleged to ariseupon such a foreign non-statutory charge.
I have therefore to decide whether the High Court of Admiralty inEngland would as at 1890 have had the jurisdiction to enfcrce, by way ofarrest and sale of a .ship, a charge of such a nature as that on which thePlaintiff bases its claim. For at least two reasons, it is seriously doubtfulwhether the High Court did have such a jurisdiction. Firstly, it is notwithout significance that counsel engaged in these proceedings on behalfof the Plaintiff md the Plaintiff’s American Advisers have not been ableto refer me to any case in the English courts in which an action in remwas successfully instituted on the basis of a claim that the right of action
1 The Livietta, (1883) 8 P. D. 209 ; 49 L. T. Rep. 411:7 Asp. M. L. G. 151.
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was granted by virtue of the common law of a foreign state. Sven thecase of The Livieita 1 decided in 1883 was one where the foreign Govern-ment only asserted its claim to share in the sale proceeds of a ship already •arrested and sold at the instance of persons who indisputably held a mari-time lien under the general maritime law. That case did not decide thatthe Italian Government had such a right as would have entitled them tosecure from an English ccurt a warrant of arrest against the ship. Thedoubt arising by reason of the considerations just mentioned becomes themore serious when the provisions of the Admiralty Court Acts of 1840 and1861 are examined. Section (iii) of the earlier Act provided :
“ After the passing of this Act, whenever any ship or vessel shall beunder arrest by process issuing from the said high court of admiralty,or the proceeds of any ship or vessel having been so arrested shallhave been brought into and be in the registry of the said court, ineither such case the said court shall have full jurisdiction to takecognisance of all claims and causes of action of any person in respectof any mortgage of such ship or vessel, and to decide any suit institutedby any such person in respect of any claims or causes of actionrespectively ”.
It seems to be clear from this express provision that at that time even aBritish mortgage of a British ship could not have been enforceable inthe court of admiralty except in the case of a ship already arrested and incustodia leg is. But as to this last mentioned matter the Act of 1861 insection 11 altered the law; that section, presumably for reasons ofconvenience, conferred jurisdiction on the High Court of Admiralty inEngland over any claim in respect of any mortgage duly registered underthe Merchant Shipping Act of 1854 whether the ship be under arrestof the court or not. There is no reason why I should not assume thatin regard to a claim in respect of some other mortgage, the jurisdictionof the High Court of Admiralty at 1890 was only that which section 3of the Act of 1840 conferred. As stated in the long title, the purposeof the Act was to improve the practice and extend the jurisdiction of thecourt and when the Legislature in section (iii) gave a jurisdiction overclaims in respect of mortgages in the case of a ship already under arrest,the underlying assumption surely was that prior to 1840 the court wouldnot have enjoyed any jurisdiction over a claim in respect of the mortgageof a ship. That being so, it follows a fortiori that prior to 1840, the courtwould not in any circumstances have had jurisdiction over a claimanalagous to a claim upon a mortgage alleged to arise under foreign law.When therefore, in the year 1883, the court in The Livietta 1 recogniseda charge for repatriation expenses attaching to an Italian ship under thestatute law of the flag, it seems to me that had the point of jurisdictionbeen taken by reference to the Acts of 1840 and 1861 (it was not takenin that form) the answer could have been that the claim based upon theforeign statutory charge was analagous to the case of a mortgage and
1 The Livietta (1883) 8 P. D. 209 ; 49 L. T. Rep. 411 ; 5 Asp. M. L. C. f51-
358 H. N. Q. FERNANDO, J.—The Government of the United States of
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could there ore be entertr ined because, in terms of section (iii) of theAct of 1840, the proceeds of sale of the ship were then in Courtconsequent to prior arrest at the suit of the salvors.
I have not consulted in this connection the statute law in Englandsubsequent to 1890 but counsel for the Plaintiff did refer to section 1of the Administration of Justice Act of 1956 which apparently re-statesthe aclmir.Jty jurisdiction of the High Court as including “ (c) any claimin respect of a mortgage or charge of a sliip or any share therein **.. Theprovision is amplified by subsection (4.) so as to comprise mortgages andcharges created under foreign law. These provisions may well be merelyre-statements of other statutory provisions enacted in England after 1890,but whether they be new or else only such ’a re-statement, what seemsimportant for present purposes is that the High Court now has jurisdictionover charges created by foreign law by virtue of statutory provisionenacted after 1890. This is the second ground for my opinion that inall probability the High Court did not enjoy in respect of any suchforeign charge any but the restricted jurisdiction conferred by section (iii)of the Act of 1840. That being so this court does not in my opinion havejuris<liction to entertain an action and arrest a ship, if the Plaintiff’sclaim 13 based solely upon a charge alleged to arise, not under the generalmaritime law, but under the national law of the flag.
Although 1 had indicated at an early stage of the argument that thiscourt would not resort to United States Law for determining whether thePlaintiff held a maritime lien under the general maritime law, evidenceas to the United States Law was in fact led in connection with the argu-ment which 1 have considered and rejected in the paragraphs immediatelypreceding. A charge, it was claimed, arose in favour of the United StatesGovernment when it incurred the expenses of repatriation of the crew.Referring to the American Corpus Juris, Vol. 60 p. 712-716 it was arguedthat the doctrine of subrogation applied because the expenses wereincurred under legal or moral compulsion.
In the affidavit of Mr. Carl C. Davis filed with the Plaintiff’s petitionreference is made to about twelve reported decisions of the Americancourts and there were appended to that affidavit photostat copies of thosereports, the authenticity of which counsel for the Defendants acknow-ledged in advance. Without referring in detail to all the reports I amcontent to make the general observation that, in nearly every one of them,either the statements of facts or the order of the courts makes it clearthat, whert* money advanced for the.purpose of the ship was held to berecoverable, the legal ground of recoverability was that the advancehad been made upon the credit of the ship. In three of these reports,The Ruth K. Merrill 1 decided in 1922 in appeal by a Circuit Court ofAppeals, The Little Charley 2 decided in 1929 by the District Court of
1 7V**-. Ruth E. Merrill, 286 Fed. Rep. 355 (1922).* 77..: Little Charley, (1929) 57 F (2d) 319.
H. N. Gk FERNANDO, J.—The Government of the United States of -359
America v. The Ship “ Valiant Enterprise'*'
Maryland and the The Engelwood 1 decided in 1932 in the District Courtof New York there is reference to “ subrogation ”, and it may well be thatthe legal ground, upon which a person making advances is entitled to amaritime lien as known to American law or otherwise to recover the debtis different in. nature to that upon which the English courts recognisesimilar claims. But the following passages from the judgments showthat the American courts stress the element that the advances should be madeupon the credit of the vessel :
“ It is probably true that Carpenter advanced what he did becausehe held a mortgage, which was in great danger of being lost in foreignparts. He prevented the equivalent of a marshal’s sale abroad andenabled the ship to get home ; the law protects him in so doing. Tothat extent he rightly acted for his own interest. ” (The Ruth B.Merrill2)
“ The mortgagee, however, claims subrogation by virtue of certainadvances which the owner made on behalf of the vessel out of theproceeds of the mortgage loan, namely, $82b. It is true that advancesmade to a vessel’s owner on the vessel’s credit for the purpose of paying,and out of which there is actually paid, maritime claims, entitle theone making such advances to a maritime lien of equal rank with theclaims thus satisfied, without regard to an actual necessity for theadvances. ” (The Little Charley 3)
“ The crew had a maritime ?ien for their wages..:.
Those who advanced money to the master to pay crew’s wages areentitled to a maritime lien of the same rank. ” (The Engelwood *)
Mr. Davis also refers in his evidence to a decision of the District Courtof Haifa, Israel, in The Pacific Wave4, where the court sustaineda claim of the United States Government for the recovery of expensesincurred in the repatriation of the crew of a ship abandoned by theowners in the port of Haifa, which decision was marked “ P. 10a ” in thisaction. But that decision is not in my opinion authority for the pro-position that the Haifa court recognised any right of the United StatesGovernment to cause a ship to be arrested and sold for the satisfaction ofits claim. Mr. Davis admitted that some other party had first institutedan action against the ship for necessaries and the Government’s claimwas admitted thereafter upon intervention. The decision only establishesthe proposition that after arrest such a claim as the Gc vemment nowsets up was admitted and presumably satisfied out of the proceeds of sale.The decision does not state whether the court was applying either the i
i Engelwood, (1932) 31 F (2d) 120.
The Ruth E. Merrill, 286 Fed. Rep. 355 (1922).a The Little Charley, (1929) 57 F (2nd) 319.
Govt, of V. >S. A. v. ‘The Pacific Wave*, D. C. Haifa Maritime Claim No. 14of I960.
360 H. N. Q. FEKNANDO, J.—The Government of the United States of
• America v. The Ship “ ValiantI Enterprise ”
general maritime law pr the lex /pri or the United States Law. Still lessdoes it give any indication whether the court recognised that the claim,pf the United States Goyemment arose upon the principle of subrogation.
Mr. Davis could not point to any decision of any American courtholding that where the Government incurred expenditure under section678. of Title 46 of the United States Code the Government would therebybecome entitled to a maritime lien upon the principle of subrogation orupon any other principle. This lack of American precedent Mr. Davis.sought to account for by .the answer that the question would not normally.arise for decision in an American court but would arise only in foreignjurisdictions. He however emphatically insisted that the decision in theDistrict Court. of r California in Admiralty No. 2714 of July 15, 1960,in the case of. The liberty Ship “ Audrey 11 ” 1, (a certified copy of theopinion was filed in the affidavit) was one in which an American courtdid pay out to the United States Government the cost of repatriation ofthe crew of the ship from Yokohama to the United States. There issimply nothing in the opinion to support Mr. Davis’ proposition. Whatthe court there upheld was the right of the Government to recoveradvances made with the antecedent approval of the court under whoseauthority the ship was duly under arrest, such approvals being grantedin an order expressly stating that the advances so made would constitutea lien on the ship. Even if Mr. Davis correctly stated that certainrepatriation expenses were permitted to be recovered, although notincurred under the authority of the court’s express order, it may well havebeen the case that when the court ultimately allowed those expensesto be recovered it only did so in what plight be appropriately termed** proceedings in execution ” and not in recognition of the Government’sright to arrest and proceed against the ship simply in order to recovercosts of repatriation.
• Mr. Davis also referred to two American decisions not cited in hisaffidavit. With reference to The Washington 1 2, marked “ P. 13 ”,decided by the District Court of New York in 1924, it appears from thejudgment, and it was ultimately conceded in evidence, that althoughthe court there did recogniso the maritime lien of a seaman for his wages,no question in fact arose of any claim upon the principle of subrogationby reason of the paying off of a seaman’s claim. In the case of TheSandelfinanz v. Evanthia3, “ P. 14”, a ship of Costa Rican Registryhad been libelled in rem and the proceeds of the sale of the ship were in theRegistry of the court which thereafter considered various conflictingclaims against the proceeds. For this purpose the court considered andconfirmed the Report of a Special Commissioner. One party which wasapparently the mortgagee of the ship claimed for moneys paid out as
1U. S. A. v. Liberty Ship Audrey II, et al., in Admiralty No. 27141, U. S. DistrictCourt, Northern District of California, South Div.
2The Washington, 286 Fed. Rep. 158.
3Handelfinanz v. Evanthia {1955) Am. Maritime Cos. 340.
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wages of the orew and also expenses incurred for repatriation and theCommissioner stated that “ under the general maritime law seamen areentitled to repatriation and the costs thereof may properly be allowedas a maritime lien ”. This was not a claim by the Costa Rican Govern-ment of the same nature as asserted in the present action by tbe UnitedStates Government. On the contrary the cost of repatriation in thatcase would seem to have been incurred by the mortgagee.
J do not propose to refer to the judgment of the French court, a trans-lation of which was marked “ P. 16 ” in this action. It was stated onbehalf of the Plaintiff that the translation had "been made by counselpractising at the bar in Ceylon, but counsel for the Defendants did notconcede the authenticity of the translation.
In the result I find that neither the text books nor the precedentsmentioned by Mr. Davis in his affidavit and in bis evidence established theproposition that under American Law tbe United States Governmentwould have a maritime lien or any other charge enforceable by actionin rem for the recovery of expenses incurred in pursuance of the statutoryduty imposed by Title 46 of the Code ; and there remains in support ofthis proposition only Mr. Davis’ opinion. The qualifications he relieson as constituting him an expert are two-fold, namely, his experienceas an attorney in the Admiralty and Shipping Section of the Departmentof Justice in the United States and also his part-time activity as a Pro-fessor of Admiralty law at two universities at Washington. J feelreluctantly compelled to observe that an employee of the Department ofJustice, who according to his own evidence was responsible for advisinghis Government to prefer other claims of the nature now preferred beforeme, is not in my opinion a suitable choice as a witness to testify as anexpert to what in fact is the American law. Reference is made in Dicey's“ Conflict of Lav)S ” (7th Ed. p. 1112) to the fact that, when tbe un-contradicted evidence of an expert witness is “ obviously false ”,
“ obscure ” or “ extravagant ”, the court may reject it and form its ownconclusion as to tbe effect of the foreign sources. I certainly would notthink of using any such expression with regard to the evidence of theexpert in this case ; but as to the correctness of bis opinion I am notsatisfied for at least two reasons.
Firstly, even if he did not advise the institution of the present actionhe did in fact advise the preference of two similar claims on other recentoccasions : the witness showed in his evidence an understandable tendencyto be “ interested ” in the success of the present action. For instancethe witness states at the commencement of his evidence that he hadhandled numerous cases in the courts of the United States and also invarious foreign courts where rights in rem were asserted against vessels bythe United States in consequence of maritime liens and again the witnesssaid he was also aware of several cases in which the United States Govern-ment had recovered viaticum. It seems to me that the witness was not
302 EL N- G. ITERNANDO, J.—The Government of the United States of
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justified in making such statements. Ultimately it was only the case ofThe Audrey II 1 to which he pointed as being an instance where anAmerican court had allowed such a claim by the United States Govern-ment ; and even in regard to foreign decisions the experience of the^witness appears to have been limited to three cases, the Haifa decision inThe Pacific ave a, some case in Saudi Arabia and the decision in aFrench court which I have mentioned earlier. Answers such as thosegiven to Questions No. to No., which had sub-
sequently to be retracted, at the least indicated a lack of the caution onewould ordinarily expect in an expert witness.
Secondly, he invited this court, in his affidavit, to accept severaldecisions of the United States Courts (reports of which he appended)as establishing his proposition that United States Law recognises amaritime lien to arise upon the facts of the present case ; but none ofthose decisions bear out his personal opinion. Since the grounds bechose to put forward in the affidavit appear to me unsound, I do not feelbound to accept that opinion as correct.
Mr. Davis asserted that the principle of subrogation would operate to-confer a charge under the common law of the United States in a casewhere some Governmental agency in pursuance of a statutory duty “ paysoff ” some debt or liability secured by a lien or charge. I accordinglyinvited counsel for the Plaintiff to refer to any decision of a United Statescourt recognising such a charge, but no such decision was brought to mynotice. As to section 678 of Title 46 itself, the duty it imposes is so-clearly referable to considerations of public interest, both of the UnitedStates and of the country in which its seamen may be stranded, that itwould be unreasonable to infer that the section contemplates that thoexpenditure it authorises would be incurred on the credit of the vesselconcerned. Indeed, such expenditure may well have to be incurreddespite the knowledge that the vessel concerned is already a total loss.
Having considered the evidence as to the United States law I amsatisfied that the Plaintiff has not proved that under that law a maritimelien or other charge enforceable by action in rem arises in its favour.Hence even if it be correct, despite the decisions in the English courts inThe Milford 3 and The Colorado 4, that this court must apply theUnited States law in ascertaining whether or not the Plaintiff has 3 mari-time lien, or even if it be correct that the decision in The Livietta (supra)has the consequence that this court must in this action enforce a chargearising under th^ common law of the United States, it was not provedin this action that the Plaintiff is entitled to any such maritime lien orcharge.
U. S. A. v. Liberty Ship Audrey II, el al., in Admiralty No. 27141, U. S.District Court, Northern District of California, North Div.
Govt, of U. S. A. v. * The Pacific Wave 7, D.jC. Haifa Maritime Claim No. 14'of 1960.
The Milford, (1858) 166 English Reports, 1167.
• The Colorado, (1923) Probate, 102 ; 128 L. T. Rep. 759 ; 16 Asp. M. L. C. 145.
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I cannot conclude this judgment without acknowledging my debt to allcounsel engaged in this case for the valuable assistance afforded to mein the consideration of questions which have been to us both novel andcomplex. If the arguments were prolix, and the judgment be prolix inconsequence, or if on the other hand some decisive matter has oscapedattention, unfamiliarity on the part both of counsel and Judge with theJaw governing the action should be sufficient excuse.
Plaintiff's claim dismissed.