THE PLOVER-CROSsley.

Master-Wages and Disbursements — Taking Promissory Note― Lien on Ship—

Not Waived.

The plaintiff brought an action against the P. for wages and disbursements as master of the vessel. In answer to the master's request when abroad for a statement of his account and for payment, the managing owner sent the master his individual promissory note for $800, payable with interest, on account of the wages. The managing owner subsequently became insolvent. The master, on his return to St. John, N. B., demanded payment from the owners of his wages and disbursements, the sum claimed including the amount of the promissory note. The owners, by their counterclaim, sought to set-off against the master's claim, among other things, the amount of the promissory note; but

Held:- That the master, under the circumstances of the case, had not lost his lien upon the vessel. The set-off was rejected, and the plaintiff held entitled to recover, with costs.

This was a cause of subtraction of wages and disbursements instituted by James H. Crossley, as master, against the Canadian registered vessel Plover. It appeared by the evidence that the master was put in charge of the vessel in the year 1883, and continued in charge until August, 1887. During the greater part of his employment he was on distant voyages, and for a portion of that time his wife and child sailed with him in the vessel. The defendants put in a counter-claim composed of several items, the principal of which, however, were for failure of the master to collect ten days' demurrage under charter party in 1883, at Carnarvon; for board and expenses of the master's wife and child while on board; and for a promissory note for $800, payable with interest, made by Mr. S. Schofield, the managing owner, in favor of the master, and by him sent to the master. It appeared that the master, as early as 1884, and repeatedly afterward, had sent requests to the managing owner at St. John, N. B., for statements of his account and urging payment. It also appeared that the managing owner, on one occasion, had written the master that interest would be allowed him on any money due and undrawn. In reply to

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Nov. 1.

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one of the requests of the master, then abroad, for an account and payment of his claim, Mr. Schofield sent him PLOVER. his individual promissory note, payable with interest, dated July 1, 1885. Subsequently to giving the promissory note the managing owner became insolvent. Upon the return of the master to St. John, N. B., in August, 1887, he demanded from the owners the amount of his wages and disbursements, and threatened legal proceedings if not paid. At the trial the managing owner testified that, pending negotiations for a settlement, and prior to the commencement of this suit, he said to the master, "You know you have no claim against the owners or vessel for that $800," to which the master replied, "I know that; I took you for that." Failing to get a settlement, the master began this suit and caused the arrest of the vessel. Several shipowners and managers of vessels gave evidence as to the custom of charging expenses against the master when his wife sailed with him. From the evidence it appeared there was no settled or uniform custom. Some managing owners charged a certain amount, and some charged nothing. It was generally a question of agreement between the parties. There was evidence in this case that the cost to the ship would be about $5 per month for each person. Counsel for the master did not strongly resist the right of the owners to be allowed a reasonable sum, as the master had expressed a willingness to be charged what was a reasonable amount. The Court therefore allowed $5 per month each for wife and child during the time on board. The counter-claim for demurrage was ignored, and it was held that the master had not forfeited his lien on the vessel by taking the promissory note. Judgment was therefore given in favor of the master for the amount of his claim, with costs, less the charges for his wife and child, and one or two other small items.

W. W. Allen, for plaintiff, admits the claim should be reduced by the amount of a railway ticket and a reasonable allowance for wife's board. The promissory note was not, however, payment, simply a statement showing the amount owing the master at that time. Shute v. Robins (1). There

(1) 3 C. & P. 80.

is no evidence that Mr. Schofield ever charged the promis

sory note against the owners.

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THE

The reply of plaintiff to Schofield, as detailed by the PLOVER. latter, could not cut down any rights then held by the mas

ter.

The demurrage cannot be charged against the master;

it is a question of law for the judge to decide.

C. W. Weldon, Q. C., on the same side, refers to The Fairport (1), where a master gave a bill of exchange for disbursements of ship, it was not paid, judgment was signed against the master, and although unsatisfied, the master was allowed to proceed against the ship for the amount. The master has a lien on the vessel for his wages and disbursements. See R. S. Can. c. 74, s. 59. The plaintiff's lien is not lost. The lien also exists for the interest, as that is allowed in Admiralty. Mr. Schofield, as managing owner, was acting for the owners, and his acts would bind them. The Court, in adjustment of the accounts, can appropriate payments as justice may require. The note is not payment, only a suspension of payment. By special agreement parties can make it a payment, but that must clearly appear. The owners' liability continues unless they show to the contrary. The case of The Fairport shows lien is not lost. Also cites The Rainbow (2). Mew's Ann. Dig. for 1885, p. 443. If not given for a settlement, why does Schofield say it was a payment, while at same time owners say master is indebted for demurrage? Making deductions now claimed by defendants, the captain, at the time note given, was not entitled to $800. In all the cases reported depriving master of lien, a settlement had been made. The Court must look at all the circumstances.

C. A. Palmer, for the owners of the vessel, cites W. & Bruce, p. 207. The Petunia and The Rainbow (3). A seaman who consents to the deposit of his wages at interest, instead of receiving them when due, loses his right to proceed against the ship. It was agreed the $800 note should remain at interest in the hands of Schofield. He admits taking a bill of exchange for a debt is not payment of itself, (1) 8 P. D. 48. (2) 53 L. T. N. S. 91. (3) 53 L. T. N. S. 91.

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but in this case the master dealt with Schofield as his banker. At the time the note was given the credit of the latter was PLOVER. good. To allow a lien now against the vessel for that sum might work injustice to innocent owners. The plaintiff, in August, 1887, knew of Schofield's suspension, and he then made no claim for the $800 against the owners. The note transaction was purely between the master and Schofield. The master made numerous remittances to Schofield on account of ship after note was given, which he would not have done had he considered the $800 note an item of claim against the ship. No interest can be recovered; the managing owner has no right to bind owners for such payment. The master should be charged with the demurrage, which he should have collected, and the board of his wife must be deducted from his claim.

Weldon, Q. C., in reply.

WATTERS, J. There is no doubt but that the taking a promissory note or bill of exchange in satisfaction of a lien will in general determine the lien. Whether certain facts make out an understanding between parties that a particular transaction shall settle a demand is not a question of law; such payment is a question of fact.

The giving of a promissory note of a debtor for a preexisting debt secured by a mortgage is only presumptive evidence of payment, and it is a question for the jury, upon all the evidence in the case, whether the note was given and received in payment of the mortgage debt. Dodge v. Emerson (1). The mariner's contracts (whether seaman or master) is a maritime service, and both are presumed in law to engage on the credit of the ship; therefore the maritime law gives a lien against the ship. Dixon Ship. 318-22, and before a seaman can be deprived of such lien by any alleged circumstance or transaction, both the American and English authorities hold that the onus is upon the defendants to clearly prove that there was an express arrangement with the mariner to forego his right against the ship. The Rainbow (2). The evidence of the plaintiff and the managing (2) 53 L. T. N. S. 91.

(1) 131 Mass. 467.