Francis William Raikes

“ It follows, therefore, that in a large class of executory contracts express and implied, which the common law regards as creating no property, right nor interest analogous to property, but only a mere personal right to obligation, equity recognizes in addition to the personal obligation a particular right over the thing with which the contract deals, which it calls a lien, and which though not property is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing and to enforce the defendant’s obligation by a remedy which operates directly on the thing. ”

“ Subject to equitable considerations, the true principle appears to be that services rendered under an actual or implied contract, which confer a maritime lien, make the holder of the lien in some sort a proprietor of the vessel, and therefore liable for damage done by her—hence the priority of the damage lien—but, directly it has attached, benefits conferred on the property by enabling it to reach port in safety benefit the holder of the damage lien in common with all other prior holders of maritime liens. ”

“ For example, a foreign vessel comes into collision by her own fault and is damaged and her cargo also; she is assisted into port by salvors and ultimately under a towage agreement, and put into the hands of a shipwright who does necessary repairs. The innocent party to the collision has a maritime lien for his damage, and the seamen for their wages; the cargo owner has a suit in rem or a statutory lien for damage, and the shipwright a possessory lien for the value of his repairs, while the tugs certainly have a right in rem and possibly a maritime lien also in the nature of salvage. ”

“ A maritime lien is in no respect subject to the Statute of Limitations, and continues in force notwithstanding a change in the ownership of the property without notice, and is only terminated when it has once attached, by laches on the part of the person claiming it (the “Kong Magnus,” 1891, P. 223) . There is an exception in the case of seamen’s wages, where by 4 Anne c. 16 (Stat. Rev. 4 & 5 Anne c. 3) all suits for seamen’s wages in the Admiralty must be brought within six years. ”

“ The most common example of the third is that of a carrier, who is bound by law to carry for all persons, and has, therefore, a lien for the price of the carriage on the goods carried. It has been held that even if the goods are stolen, and entrusted to the carrier by the thief, the carrier can hold them for the price of the carriage against the rightful owner. ”

“ For example, if one claimant has a lien on two funds, or an effective right of action in addition to his lien, and another claimant has only a lien upon one fund, the first claimant will be obliged to exhaust his second remedy before coming into competition with the second. As regards possessory liens, the shipwright takes the ship as she stands, i.e. with her incumbrances, and it appears that the lien for seaman’s wages takes precedence of a solicitor’s lien for costs, under a charging order made in pursuance of the Solicitors Act 1860, § 28. ”

“ Of the same nature is the common-law lien of an innkeeper on the baggage of his customer for the amount of his account, he being under a legal obligation to entertain travellers generally. Another instance of the same class is where a person has obtained possession of certain things over which he claims to hold a lien in the exercise of a legal right. For example, when a lord of a manor has seized cattle as estrays, he has a lien upon them for the expense of their keep as against the real owner ”

“ Each of these has a privileged claim against the ship, and in some cases against freight and cargo as well, but it is a matter of very great importance that, except in Belgium, a claim for collision damage (which as we have seen confers a maritime lien, and one of a very high order, in Great Britain) confers no privilege against the wrong-doing ship, whilst in all these countries an owner can get rid of his personal liability by abandoning the ship and freight to his creditor, and so, if the ship is sunk, escape all liability whilst retaining any insurance there may be. ”

“ The theory of equitable liens has its ultimate foundation, therefore, in contracts express or implied which either deal or in some manner relate to specific property, such as a tract of land, particular chattels or securities, a certain fund and the like. ”

“ Probably in consequence of the United States and the several states composing it having had a more democratic government than Great Britain, in their earlier years at all events, certain liens have been created by statute in several states in the interest of the working classes which have no parallel in Great Britain, e.g. in some states workmen employed in building a house or a ship have a lien upon the building or structure itself for their unpaid wages. ”

“ So also where a solicitor, having a lien on documents for his costs, assigned the debt to his bankers with the benefit of the lien, it was held that the bankers might enforce such lien in equity. But though a tradesman has a lien on the property of his customer for his charges for work done upon it, where the property is delivered to him by a servant acting within the scope of his employment, such lien cannot be transferred to the servant, even if he has paid the money himself ”

“ The value of the property may be insufficient to pay all claims, and it becomes a matter of great consequence to settle whether any, and if so which, have priority over the others, or whether all rank alike and have to divide the proceeds of the property pro ratâ amongst them. ”

“ Even though in the latter case the admiralty court had jurisdiction previously to 1840 where the necessaries were supplied on the high seas, yet as it could not be shown that such jurisdiction had ever been held to confer a maritime lien, no such lien is given. Even now there is much doubt as to whether towage confers a maritime lien or not, the services rendered being pursuant to contract, and frequently to a contract made verbally or in writing on the high seas, and being rendered also to a great extent on the high seas. ”

“ The claim is limited ab initio to ship and freight, except in the case of seamen’s wages, which do confer a personal claim so far as they have been earned on a voyage or passage completed prior to the loss of the ship. In all maritime states, however, except Spain, a provisional arrest of the ship is allowed, and thus between the privilege accorded to the debt and the power to arrest till bail is given or the ship abandoned to creditors, a condition of things analogous to the maritime lien is established ”

“ The third class, which only give a right to proceed in rem, i.e. against the ship itself, attach, so long as there is no bona fide change of ownership, without citing the owners, in all cases of claims for damage to ship and of claims for damage to cargo where no owner is domiciled in England or Wales. Irrespective of this limitation, they attach in all cases not only of damage to cargo, but also of breaches of contract to carry where the damage does not exceed £300, when the suit must be commenced in a county court having admiralty jurisdiction ”