Zancopulo was taken ill, and directed the ship to go to Swansea to take up a charter to carry coal to Sierra Leone. Companis, however, took her to North Shields, owing to contrary winds. Whilst at North Shields a charter-party was entered into by Companis to go to Buenos Ayres with coals, and the ship, after being coppered, was duly laden under the charter-party. Companis, whilst at Newcastle, received various sums for the ship from the charterer and brokers, and had previously received considerable sums from Zancopulo at various times. Zancopulo alleged that the coppering of the ship was wholly without his knowledge and consent. Dec. 10, 1874,-James P. Aspinall moved on behalf of the mortgagee that the several claims be referred to the registrar, assisted (if necessary) by merchants, to examine and report thereon, as usual. E. C. Clarkson, for the plaintiffs in causes Nos. 6911, 6913, 6918, 6919, transferred from the County Court, objected upon the ground that the claims therein had already been investigated and pronounced for by the County Court, and that the defendant having neglected to enter an appearance in the County Court had no right to have the claims re-opened now. In cause No. 6913, the claim is for a sum advanced; a reference is unnecessary there. Gainsford Bruce. for the other plaintiffs, contended that as the defendant had allowed such a length of time to elapse before asking a reference, he was now too late; and, further, that it would be useless to refer No. 6895, on account of the smallness of the claim. Aspinall, in reply. Sir R. PHILLIMORE.-I shall order all the claims, except that in causes Nos. 6895 and 6913, to be referred to the registrar. In taking this course I do not wish it to be understood that I decide that these claims in which judgments have already investigated are to be reopened. Whether it will be necesssary to reopen them or not is a question with which the registrar must deal when they come before him. There is, however, one matter in the case to which I wish to call attention. It is worthy of remark that this vessel, although under the arrest of this court, was arrested in several of the other suits by the same County Court, which is hardly consistent with the spirit of the County Courts Admiralty Jurisdiction Act, giving power to arrest only when there is a probability of the ship being taken out of the jurisdiction, the expense being very needlessly augmented thereby. I think it is desirable that the Bar and the Profession should consider this matter, which is one of importance. [ADM. ferredfrom the Northumberland County Court, at Newcastle. No. 6913, for breach of contract on behalf of William Boyd, also transferred from the above-named County Court. 6918, for necessaries on behalf of Messrs. Common and Avery, also transferred from the abovenamed County Court. 6919, for necessaries on behalf of Mr. Common, also transferred from the above-named County Court. 6941, for bottomry (afterwards acknowledged to be mortgage) on behalf of Basilio Papayanni, agent of Demetrio Vafiadachi. 6961, for wages and disbursements on behalf of John Companis as master of the vessel. And whereas, on the 10th Dec. ult., you were pleased, at petition of the mortgagee, the plaintiff proceeding in cause No. 6941, to refer the claims in causes 6377, 6893, 6911, 6918, 6919, and 6961, to the registrar to report the amount due thereon, to waive reference in causes 6895 and 6913. And whereas the proctors representing the parties in all the above-mentioned causes, have agreed that I should also report as to the right of several plaintiffs to the priority of payment out of the proceeds in court, as well as on the question of costs. Now I do most humbly report that I have, with the assistance of Sydney Young, Esq., of London, merchant, carefully examined all of the claims filed in these causes, together with all accounts and vouchers, and the papers and proceedings produced and brought in, and having on the 29th Dec. ult. heard the evidence of Ernesto Antonio Rodinis, the plaintiff in cause No. 6877, of George Varnakiottes, the plaintiff in cause No. 6893, of John Zancopulo, the owner of 32-64ths of the vessel, a witness produced by the mortgagee, and on the 4th Jan. inst. heard parties through their proctors, on all sides, I find that the several claims ought to be paid out of the proceeds of the vessel, now remaining in court, in the following order: (1.) The taxed costs of all parties, including those incurred as well in the County Court as in this court, save the costs of the plaintiff in cause 6961. (2.) The claims of the material men for necessaries, to the extent following:-In cause 6877, 1911. 5s. 3d.; in 6893, 901. 13s. 11d.; in 6895, 13. 16s 4d.; in 6918, 1291. 158. 10d.; in 6919, 1067. 19s.; as stated in the schedules 1, 2, 3, 4, and 5, hereto annexed. (3.) The claim of the mortgagees in cause 6941, to value of 1000 French gold twenty-five franc pieces, equal to the sum of 8001. sterling, on his flling an affidavit to the effect that no part of the said mortgage debt has been paid, or any interest thereon. (4.) The balance (if any) to be applied to the satisfaction of the remaining claim or claims in such manner as I may hereinafter, if required, report. All which is humbly submitted by 1. Paid for letters 2. Cash lent for ship's use 3. Goods supplied 4. Bonded stores..... No. 6893. Claimed. £ s. d. 0210 40 18 4 176 2 10 Allowed. £ s. d. 15 2 5 H. C. ROTHERY, Registrar. 1. Reporting ship at Custom House 2. Notice to Board of Trade for measure brief.. 3. Cash to master 4. Cash to North Sea pilot 5. Expenses incurred in trying to negotiate a loan, and obtain money for ship's use... Allowed. £ s. d. 1 1 0 1 1 0 ADM.] 6. Trimmers loading vessel 7. Telegrams to Genoa 8. Agency and expenses and petty disbursements, and for acting as interpreter 9. Cash to master No. 6895 THE TURLIANA. 10 10 0 75 0 0 Goods supplied...... No. 6918. Schedule 4. Claimed. £ s. d. 1. Metal and nails Deduct 158 1 0 146 19 0 40 0 0 40 0 0 £106 19 0 106 19 0 H. C. ROTHERY, Registrar. The reasons upon which the registrar based his report were given by him in writing as follows: 66 "The circumstances of this case are very peculiar. "It seems that the Turliani or Turlina was a Greek vessel, built at Syra in the year 1872 by one Zancopulo. Whilst she was building, Zancopulo sold one half of the ship for the sum of 35,000 drachms to a person named Companis, and the vessel was registered in their joint names. It was arranged that for the first year, at all events, Zancopulo shonid be the master, and Companis mate; but that when Zancopulo was on shore, Companis was to be the master, and to have the management and control of the ship and of its affairs. It further appears that the owners, being unable to provide the necessary funds for the completion of the vessel borrowed from a Greek named Demetrio Vafiadachi, two sums of 700 and 300 Napoleons respectively, for which they gave two mortgages on the ship. On "The ship left Syra with Zancopulo on board as master, and Companis as mate, and proceeded thence to Cyprus, Odessa, and other places, and ultimately arrived with a cargo at Falmouth, whence she was ordered to proceed to Leery. her way there she got on to a bank, and was obliged to put into Cuxhaven, where the cargo was dis charged. At Cuxhaven she was placed on a bank, there being no dry docks there, and her bottom was caulked and tallowed, but no other repairs were done to her. She then sailed with Companis as master, Zancopulo remaining at Cuxhaven, partly because of his health, partly to settle the averages for Swansea, where a charter had been [ADM. obtained for her to carry a cargo of coals to Sierra Leone. "It is said that on the way the vessel met with contrary winds, and, accordingly, instead of continuing her voyage, she proceeded to the Tyne, where Companis obtained a charter for her to convey a cargo of coals to Buenos Ayres. A quantity of necessaries having there been supplied to her, and her bottom having been coppered, she was ready to sail on her intended voyage, when she was arrested at the suit of the necessaries men. "In the meantime, Zancopulo, having heard of the change of the vessel's destination, came over from Cuxhaven, and seeing the condition of affairs, he endeavoured to raise money to satisfy the claims upon her, but in vain. Accordingly the several suits, some of which had originally been instituted in the County Court of Newcastle, but were afterwards transferred to this court, proceeded; and on the 30th June last the court ordered the vessel to be appraised and sold to answer the claims against her. "The vessel was accordingly sold, and the proceeeds, amounting to 18107., were on the 14th Sept. last paid into court. But in the meantime other suits had been brought against the vessel, and amongst them one on the 8th Aug. by Demetrio Vafiadachi, the mortgagee, suing as a bottomry bondholder, and another on the 28th of the same month by Companis, the master, for his wages and disbursements. The claim, I should observe, of Demetrio Vafiadachi to sue as a bottomry bondholder was overruled by the court, but he was allowed to claim in respect of his two deeds for 700 and 300 Napoleons respectively as a mortgagee. "There were then nine causes against this vessel, and it was agreed that they should all be referred to myself to report the amounts due thereon, and at the same time to decide the right of the respective parties to priority of payment out of the proceeds. 'First, that this being a foreign ship, a claim for necessaries, strictly so called, would, on the authority of The Ella A. Clark (Brown. & Lush. 32), constitute a maritime lien under the 6th section of the 3 & 4 Vict. c. 65, and as such take precedence of the claims of a mortgagee, which is not a maritime lien. "Secondly, that this being a foreign ship, a claim for necessaries would, on the authority of the case of The Jenny Lind (L. Rep. 3 Adm. & Ecc. 529), take precedence of that of the master of a ship for his wages and disbursements, where the master, as in this case, was part owner, and had mortgaged his interest in the ship. "Thirdly, that an advance of freight was not a necessary within the meaning of the Act, and that, therefore, such a claim would not be entitled to precedence over that of the mortgagee. it had not been shown to my satisfaction that anything whatever was due to him in respect of his wages and disbursements, and that his claim ought therefore to be disallowed in toto. 66 Sixthly, that seeing the difficulties which surrounded the case, it seemed to me that all the claimants, except Companis, were entitled to their costs, as well in this court as in the County Court. I therefore held : "(1.) That the costs of all parties, save those of Companis, the master, in cause No. 6961, should first be paid out of the proceeds. "(2.) That then the claims of the material men for necessaries, in causes Nos. 6877, 6893, 6895, 6918, and 6919, should be paid to the extent reported due. "(3.) That then the claims of the mortgagee should be satisfied on his furnishing satisfactory proof that the claim had not been paid. "And if after the payment of the above claims any balance remained, which seemed not to be very likely, the question should again come before me to decide how such balance should be distributed amongst the remaining creditors. "To this ruling, as I understand, no exception is taken, except in regard to the allowance of the claims in causes Nos. 6918 and 6919, which were mainly, if not entirely, for the cost of coppering the vessel; and it was contended that this was not a necessary. It was said that Zancopulo had designed the vessel for a voyage to Sierra Leone, for which it would not have been necessary to copper the vessel; but that, by altering her destination to Buenos Ayres, the coppering had become necessary. Now I am a little at a loss to see what greater authority Zancopulo had to decide upon the destination of this vessel than Companis, seeing that they both held an equal share of her, and that Zancopulo, by remaining on shore at Cuxhaven, had virtually given up the command of the vessel and the management of its affairs to Companis. 'But apart from this, I am told by my assessor that whether the vessel went to Sierra Leone or to Buenos Ayres, it was equally necessary that she should be coppered. Assuming that she was destined for a voyage to those climates, it was essentially necessary that she should be coppered. The coppering was a necessary for the voyage, whether she went to the one place or the other. Now it has been laid down by the present learned judge in the case of The Riga, reported in 3 Law Reports, A. & E., that there is no distinction to be drawn between necessaries for the ship and necessaries for the voyage. At page 522 he observes, 'I am unable to draw any solid distinction (especially since the last statute) between necessaries for the ship and necessaries for the voyage; and I shall follow the doctrine of the common law, as laid down by the high authority of Lord Tenterden, in the case of Webster v. Seekamp. In that case he says, the general rule is that the master may bind his owners for necessary repairs done. or supplies provided for the ship. It was contended at the trial that this liability of the owners was confined to what was absolutely necessary. I think that rule too narrow, for it would be extremely difficult to decide, and often impossible, in many cases, what is absolutely necessary. If, however, the jury are to inquire only what is necessary, there is no better rule to ascertain that I [ADM. than by considering what a prudent man, if present, would do under circumstances in which the agent, in his absence, is called upon to act. I am of opinion that whatever is fit and proper for the service on which a vessel is engaged, whatever the owner of that vessel, as a prudent man, would have ordered if present at the time, comes within the meaning of the term 'necessaries,' as applied to those repairs done or things provided for the ship by order of the master, for which the owners are liable.' Every word in this passage appears to be specially applicable to the present case. As prudent owners it was their duty, as they intended her for such a voyage, to have her coppered. It was said, however, that it was not a prudent thing to copper an iron fastened ship such as this was, and that Mr. Common so admitted before me, but the captain and the foreign surveyor directed it to be done, and Mr. Common took the best measures for preventing any evil consequence arising from such a proceeding by covering the heads of the iron bolts with lead. "It was on these grounds that I allowed the coppering. Nor is it to be forgotten that the coppering must have added considerably to her value, when she came to be sold by the court; and that to a certain extent, therefore, the value of the copper may be said to be in the proceeds. "(Signed) H. R. ROTHERY, Registrar. "15th Feb. 1875." To this report, in so far as it decided that the plaintiff in cause No. 6919 was entitled to recover for necessaries supplied the defendant (the mortgagee) took objection, and his petition filed in objection to the report was, so far as material, as follows: 2. The Turliani was a Greek brig of about 274 tons register. She was built at Syra in the latter part of the year 1872, and was fastened with iron bolts. She was owned in moieties by John Zancopule, master mariner, and Zanni L. Companis, mariner. Zancopulo was master of the Turliani until the month of February 1874, and Companis was a seaman on board her. 3. In or about the month of Feb. 1874 the Turliani, in consequence of damage received at sea, put into Cuxhaven, where she was caulked and some repairs were done to her. The said John Zancopulo, finding it ex. pedient to remain for a time at Cuxhaven, instructed the said Companis to take the Turliani to Swansea, where the said Zancopulo had arranged a charter for her, and where he intended to rejoin her. 4. The Turliani accordingly proceeded to sea in charge of a pilot, but instead of going to Swansea the said Companis proceeded with the Turliani to North Shields, where she arrived on or about the 4th March 1874. The Turliani was then in good repair and seagoing condition, and not in want of any repairs, except some caulking and slight repairs to her upper works. 5. The said Companis, without the knowledge or sanction of the said Zancopulo, and before the arrival of Zancopulo at North Shields, employed the plaintiff to do the caulking and repairs mentioned in the preceding article, and to sheath the Turliani with yellow metal, and the sum allowed by the registrar to the plaintiff in this cause is the amount of his account for the said repairs and metalling. 6. It was most imprudent and improper to metal the Turliani, she being an iron-fastened vessel. It was impossible to place the metal in contact with the iron, in consequence of the galvanic action which would thereby be produced upon the metal, and it was consequently necessary to take unusual precautions to prevent the contact of the metal with the iron bolts, and the expense of metalling the Turliani was thereby largely increased. 7. At the time of so metalling the ship the plaintiff well knew that the Turliani was an iron-fastened vessel, and was aware of the consequent impropriety and imprudence of metalling her. 8. On the 6th Jan. 1875 the plaintiff, John Freeland Fergus Common, attended before the registrar, in the registry of this honourable court, to explain a mistake in the plaintiff's account in another cause against the Turliani, and the said John Freeland Fergus Common thereupon, in the presence of the solicitors for the plaintiff and defendant, stated to the registrar that he knew that the Turliani was an iron-fastened ship, and that he was aware of the imprudence of metalling the vessel, but that in consequence of the said Companis directing the vessel to be metalled, he took care, before placing the metal on the vessel, to cover the heads of the iron bolts with white lead, and then to place pieces of sheet iron over each bolt, and nail it on with copper or yellow metal nails. 9. By reason of the premises the defendant's solicitors submit: (a) That it was not necessary or proper to metal the Turliani. (b) That under the circumstances hereinbefore pleaded the plaintiff's claim, in so far as the metalling is concerned, is not a claim for necessaries within the true intent and meaning of the 3 & 4 Vict. c. 65, 8. 6. (c) That the claim of the plaintiff for metalling the Turliani ought to be postponed to the claim of the defendant as mortgagee. And the petition prayed the right honourable the judge to refer the said report back to the registrar, with directions to amend the same, in so far as it reported in favour of the priority of the plaintiff's claim for metalling the Turliani over the defendant's, and to condemn the plaintiff in so much of the costs of the said reference as related to their said claim, and in the costs of that objection, and that otherwise justice might be administered to the defendant in the premises. The answer of the plaintiff, John Freeland Fergus Common, admitted the truth of the allegations contained in article 1 of the said petition, and craved leave to refer to the said report and registrar's notes and reasons. It also admitted the truth of the allegations contained in the second article of the said petition, but further stated that upon the said John Zancopulo and Zanni Companis becoming co-owners of the Turliani, it was agreed between them that when the said John Zancopulo should be on shore the said Zanni Companis should be her master, and have the control of her and of her affairs. The answer then continued as follows: 3. As to the third and fourth articles of the said petition, the Turliani, after leaving Cuxhaven, met with contrary winds, in consequence of which the said Companis, who was then her master and had the management of her affairs, took her into North Shields, where she arrived, as in the said petition stated. The said Companis was then still owner of a moiety of the Turliani. On her so arriving at Shields she was in want of caulking and repairs to her upper works, and she was not metalled. The plaintiff was not aware of any such directions having been given by Zancopulo to Companis, as stated in the said petition, until the hearing of the reference in this cause by the registrar. 4. As to the fifth article of the said petition: After such arrival at Shields, the said Companis, being such master and part owner of the Turliani and having the management of her affairs, chartered her to proceed on a voyage to Buenos Ayres, and he employed the plaintiff to do the necessary caulking and repairs to the Turliani, and to sheath her with yellow metal, and the plaintiff accordingly, by the direction of the said Companis, and of [ADM. the surveyors employed by or on behalf of her owners or underwriters, did such caulking and repairs, and sheathed her with yellow metal, and the sum allowed by the registrar is the amount of the plaintiff's account for such caulking repairs and metalling. 5. As to the sixth and seventh articles of the said petition: In order that the Turliani might perform either the voyage contemplated by Zancopulo, which was a voyage to Sierra Leone, and other places on the voyage to Buenos Ayres, it was necessary to metal her, notwithstanding that she was iron-fastened. It was not impru dent or improper to metal her, provided proper pre. cautions were taken to prevent galvanic action, and proper precautions were taken by the plaintiff, who knew the said vessel was iron-fastened, to prevent such galvanic action. The precautions taken were such as are usual in metalling iron-fastened vessels. The expense of metalling was thereby necessarily larger than it would have been if the Turliani had been a copper fastened vessel. Save as herein appears, the plaintiff denies the truth of the allegations in the said sixth and seventh articles. 6. As to the eighth article of the said petition: The plaintiff stated that after the Turliani came into dock he found that she was an iron-fastened ship, and in the sense that it would have been better to have replaced the iron fastenings with copper, if possible, before metalling the vessel, he stated that he was aware of the imprudence of metalling her-meaning that it would be imprudent, unless proper measures were taken with regard to the bolts and he stated, that in consequence of Companis and the surveyors of the vessel directing her to be metalled, iron-fastened as she was, and ordering that before placing the metal on the vessel he should take the usual precautions, namely, those of covering the heads of the iron bolts with white lead, and then placing pieces of sheet lead over each bolt, and nailing such pieces on with copper or yellow metal nails; he followed such orders and took such precautions. Save as herein appears, the plaintiff denies the truth of the said eighth article. 7. The plaintiff submits that his said claim was properly allowed by the registrar, and that it is entitled to priority over the claim of the defendants as mortgagees. The answer prayed the right honourable the judge to confirm the report of the registrar, and to reject the prayer of the said petition. The pleadings in objection to the report were thereupon concluded. June 8, 1875.-Cohen, Q.C. (J. C. Mathew with him) for the defendant (the mortgagee), stated that he was unable to urge any good reason against the report, and that he must abandon the objectior. E. C. Clarkson for the plaintiff. Sir R. PHILLIMORE.-I have very carefully read through the case, the facts of which all appear upon the printed papers, and I have come to the same conclusion. Subject to any argument which I might have heard, I was unable to see any reason whatever for disturbing the report, which seems to me to be quite correct, and the reasons for which are sound. Proctor for the plaintiffs in causes Nos. 6877 and 6895, H. C. Coote. Solicitors for the plaintiffs in cause No. 6893, Clarkson, Son, and Greenwell. Solicitors for the plaintiffs in causes Nos. 6911, 6913, 6918, 6919, and 6961, Ingledew, Ince, and Greening. Solicitors for the mortgagee, Pritchard and Sons. END OF VOL. II., N.S. SUBJECTS OF CASES ABANDONMENT. See Carriage of Goods, No. 38-Marine Insurance, Nos. 1, 2, 20, 21, 33, 38, 39, 46, 48-Salvage, Nos. 10, 11, 13, 16, 21. ADMIRALTY COURT. See Carriage of Goods, No. 11-Collision, Nos. 6, 27, 34, 38, 39-County Courts Admiralty Jurisdiction, Nos. 1, 2, 3, 4-Damage, No. 1-Jurisdiction, No. 1, 2, 3-Master's Wages and Disbursements, Nos. 2, 12, 14-Necessaries, No. 1, 5 -Practice, Nos. 1, 2, 3, 4, 5, 6, 7, 9, 10, 13, 14— Salvage, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 12, 14, 17, 18 -Wages, Nos. 1, 2, 4, 5. ADMIRALTY COURT ACTS, 1861. ADVANCES. See Bottomry, Nos. 1, 2-Carriage of Goods, No. 18 -Charter party, No. 1-Marine Insurance, No. 43 -Necessaries, Nos. 3, 4. ADVICES. See Marine Insurance, No. 4. See Broker's Lien-Carriage of Goods, No. 40, 43— ANCHOR. See Collision, Nos. 19, 33, 34-Navigable River, See Marine Insurance Association, No. 3-Practice, APPEARANCE. See Collision, No. 37-Mortgagees, No. 1-Salvage, No. 7. APPROPRIATION. See Marine Insurance, No. 22. ARREST OF SHIP. See Collision, No. 40-Jurisdiction, No. 2-Necessaries, No. 1-Practice, Nos. 5, 6, 7. ASSIGNEES. See Bills of Lading, Nos. 2, 3-Carriage of Goods, Nos. 1, 2, 3, 4, 5, 6—Jurisdiction, No. 2. "AT AND FROM." See Marine Insurance, Nos. 3, 12, 28, 45. VOL. II., N.S. ATTACHING OF LIEN. See Necessaries, No. 1. ATTACHING OF POLICY. See Marine Insurance, Nos. 3, 28, 45. ATTORNEY. See Practice, No. 14. AVERAGE. See Carriage of Goods, Nos. 30, 35-General Average-Marine Insurance, Nos. 24, 25. AVERAGE STATEMENT. See Jurisdiction, No. 4-Marine Insurance, Nos. 24, 25. BAIL. See Salvage, No. 7. BARRATRY. See Carriage of Goods, Nos. 12, 21, 22. BILLS OF EXCHANGE. Presentation for acceptance-Representation-Forgery. Where a bank present bills of exchange for acceptance to the drawers with a representation that they hold bills of lading to cover them, this does not amount to a representation that the bills of lading are genuine, and even if it turns out that they are forged, the acceptors are not released from their liability. (V. C. B.) v. Chapman and others. Baxter page 170 See Broker's Lien-Carriage of Goods, Nos. 3, 4Hypothecation-Marine Insurance, No. 6-Shipbuilding Contract. BILLS OF LADING. 1. Goods belonging to several merchants-One bill of lading-Objection to-Waiver.-Where goods ordered by merchants against their acceptances are shipped to them under one bill of lading with other goods not ordered by them, they waive any objection to the bill of lading by writing to the shippers on learning the fact of the shipment that they should send them copies of the bill of lading and other documents, treating the contract as subsisting. (Ex. Ch. from C.P.) The Imperial Ottoman Bank v. Cowan.... 57, 418 2. "Order or Assigns" omitted- Effect of No notice of trust-Indorsees-Consignor and consignees.-The mere omission of the words "or order, or assigns," in a bill of lading, does not of itself affect the parties having the legal and equitable interest in goods as indorsees and holders with constructive notice of a trust existing under the arrangements between the consignor and consignee, and is not such an omission as 2 R |