1886 ނ THE registry. Claims have been filed against the fund on behalf of the mariners for wages; by the master for wages BORZONE. and disbursements, and by M. Gaillard for the amount of a draft drawn upon him by the master on, and accepted and paid by the claimant for disbursements of the vessel prior to her arrest in this suit. The question has arisen as to the order in which claims and what claims shall be paid. I direct that the claimants on the fund in Court be paid out of the same, as far as it may be sufficient, in the following order: 1. On the authority of The Immacolata Concezione (1), the plaintiff's costs in this suit are ordered to be paid. 2. The wages of the seamen, including the mate, up to the date of the arrest of the ship, together with allowances of $20 to each for return to their own country, with their costs. 3. The plaintiff's claim in this suit as decreed. 4. The master's wages and disbursements. In this case, the master having ordered the necessaries. for which he was personally liable, and for the payment of which he subsequently signed papers pledging himself, ship and cargo for such payment, cannot claim a priority over the plaintiff's claim for his own wages and disbursements. The claim of M. Gaillard, even if it can be recognized as a claim for necessaries, cannot compete with the claim of the plaintiff under his decree. The plaintiff has perfected his claim by action and decree, and therefore both are not in the same condition, and the plaintiff is entitled to priority. Decree accordingly. As to priority of liens it is laid down in Maclachlan on Ship. (ed. 1892) that "in relation to their objects, liens may be divided into two classes: First, liens in the nature of rewards for bene fit conferred; secondly, liens in the nature of reparation for wrong done. Those of the former class generally rank against the fund in the inverse order of their attachment on the res; those of (1) 9 P. D. 37. the latter class in the direct order of their attachment on the res; and relatively to each other. Whilst liens of the one class when prior in date yield precedence in claim to those of the other class when subsequent, the actual result of this order of ranking is greatly modified by positive law and equitable considerations." The first class of liens comprises bottomry, wages, master's disbursements and salvage; the second, usually, damage by collision In The William F. Safford, Lush. 69, which is a leading leading authority on this subject, it was held that seamen's wages took priority first of all; then a bottomry bond previously pronounced for, and given before the wages were earned. If a party, at the request of the master, pay the wages of the crew, his claim is deemed a wages' claim and ranks as such. A bottomry bond takes precedence of a claim for necessaries previously pronounced for, the necessaries having been supplied before the bond. In case of two or more claims for necessaries, the one first obtaining a decree of the Court takes precedence of the others. The costs incident to the prosecution of the different claims have the same right of priority as the claims themselves. See The Margaret, 3 Hag. 240; The Immacolata Concezione, 9 P. D. 37. Dr. Lush 1886 THE ington, in The Union, Lush. 128, held that questions of precedence of liens upon ships are to be de- BORZONE. termined by the lex fori. At p. 137 he says: Upon an ex amination of all the cases, and upon an investigation of the practice of the Court, I find that no distinction has ever been taken between wages earned before and wages earned after a bond; that in practice both have been alike preferred to the bond." In this case it is worthy of note that the learned judge overruled his previous decisions in The Mary Ann, L. R. 1 A. & E. 8; s. c. 9 Jur. 94; The Janet Wilson, Swa. 261; and The Jonathan Goodhue, ibid, 524. A foreign ship is not liable for money loaned to the master to get out of gaol, where he was imprisoned for a claim for necessaries supplied to his ship. The N. R. Gosfabrick, Swa. 344. But it seems a person supplying necessaries to a ship, and taking a bill of exchange for the same in payment, can, if the bill is not paid at maturity, sue the ship on the original debt, ibid. A master's wages and disbursements come next after the seamen's wages, and before other claims. The Salacia, Lush. 545, although he be a part owner, except, however, where, as master, he has made himself liable. His claim, therefore, gives way to bottomry when he has joined in the bond. The Edward Oliver, L. R. 1 A. 1886 THE BORZONE. & E. 379; or in a mortgage. The Jenny Lind, L. R. 3 A. & E. 532; or ordered necessaries, ibid. The master's claim for disbursements has priority over that of a purchaser. The Ringdove, 11 P. D. 121. This latter case was reversed in the House of Lords in The Sara, 14 App. Cas. 209, but by the Merchant Shipping Act, 1889, 52-53 Vict. c. 46, the law was brought back to what it was taken to be before the judgment of the Lords in the latter case. See ante, p. 85. Among claims of equal standing, as stated, a preference will be given to the one first obtaining a judgment. Dr. Lushington, in The William F. Safford, supra, p. 71, said: The Court encourages sailors in actively enforcing their remedy, and gives preference to the party who is first in possession of a decree of the Court." Hence it was held in The Clara, Swa. 1, that of two plaintiffs in a cause of damage by collision, the one obtaining the first decree takes precedence. The same doctrine was laid down in The Desdamona, ibid, 158, but in the latter case, as there had only been an interlocutory and not a final decree, all the claimants for necessaries came in on equal terms. See also The Saracen, 2 W. Rob. 451; s. c. 6 Moo. P. C. 56. See for a further statement of the law on the question of priority of liens Maclachlan on Ship. (ed. 1892), p. 739; W. & Bruce (ed. 1886), 204. In Roscoe, Ad. Prac., p. 62, it is said to be an invariable rule that claims against the res rank in the inverse order of their attachment: the last in time is the first to be satisfied. The following is the order of priority: (1) Salvage of life. Mer. Shipping Act, 1854, sec. 459; The Coromandel, Swa. 205; The Cargo res Schiller, 2 P. D. 145. (2) Salvage of property. Gustaf, Lush. 506, s. c. 31 L. J. Ad. 207, in which the possessory lien of a shipwright gave way to maritime liens attaching to the ship at the time of going into his hands. (3) Claims for dam age. The The Linda Flor, Swa. 309, where damage by collision took precedence of the seamen's wages on a foreign ship. (4) Wages and disbursements of seamen and master. The Feronia, L. R. 2 A. & E. 65; s. c. 37 L. J. Ad. 60, where the master, although a part owner, for wages and disbursements was given priority of the claims of mortgagees in possession. The Union, Lush. 128; s. c. 30 L. J. Ad. 17, under which seamen's wages earned before the giving of bottomry were preferred to the bond. To the same effect see The Daring, L. R. 2 A. & E. 260. (5) Bottomry. The Cargo ex Galam, Br. & Lush. 167. The freight in this case was considered as in the nature of salvage, and on this ground was preferred to the bond. (6) Mortgage. The Two Ellens, L. R. 4 P. C. 160; s. c. 41 L. J. Ad. 33, where the assignee of the mortgage took precedence of the material man. (7) Necessaries so far as regards British ships, ibid. But if a master is also part owner of a foreign ship, his claim for wages and disbursements, contrary to the general rule, will rank after claims for necessaries supplied to the ship on the order of the master, and for which he is liable. The Jenny Lind, L. R. 1886 THE 3 A. & E. 529. The claim of a master for his wages earned and disbursements made subsequent- BORZONE. ly to a voyage, during which a bottomry bond has been given on his ship, takes priority over the bond, but the claim of the bondholder takes priority over the claim of the master for wages earned on voyages previous to that during which the bond is given. The Hope, 28 L. T. N. S. 287; s. c. 1 Asp. 563. The master's claim for wages and disbursements, whenever earned or made, have priority over the claims of mortgagees, ibid. 1887 Oct. 10. THE MISTLETOE-CORNING. Wages-Master-Forfeiture--Authority to Bind Owners-Costs-Security for. The ship M. arrived in Liverpool, England, with a cargo consigned to parties there, with instructions to the master by the owners for their agents to collect inward freight and transact the ship's business. The agents purchased an outward cargo of coals for St. John, N. B., and informed the master it was on ship's account. By request of the agents, the master signed a draft for payment of cargo, although the owners, but unknown to the master, had sent the agents funds for the coals. The agents shortly after became insolvent. Held: In an action by the master for his wages, that the owners could not charge the draft against the master, and that he was entitled to recover his full wages with costs. The plaintiff in this suit, Thomas H. Corning, instituted a cause of subtraction of wages as master of the ship Mistletoe. The managing owner, H. D. Troop, resided at St. John, N. B. The vessel sailed from Manila with a cargo of hemp and sugar consigned to parties in Liverpool, Great Britain, where she arrived in January, 1887. The plaintiff, as master, was instructed by the owners to report the ship on arrival to T. C. Jones & Co., ship brokers, of that place, and the inward freight, under like instructions, was received by Jones & Co., who also transacted the business of the vessel while in Liverpool. After delivery of the inward cargo to the consignees, the master in his evidence stated (and it was not contradicted) that he consulted with Jones & Co. as to the outward cargo-that he sent a cablegram to the managing owner at St. John, N. B., as to the outward cargo. Subsequently one of the firm of Jones & Co. informed the master that he had received directions from the managing owner to purchase a cargo of coals for the vessel and send her to St. John. No instructions were received by the master from the owners as to the cargo. The vessel was accordingly loaded with coals purchased by Jones & Co., and, as the master understood from them, on ship's account. The day before the vessel sailed from Liverpool for St. John |