400 EXCHEQUER COURT REPORTS. [VOL. IV. 1$s5 TUE THIRD NATIONAL BANK OF Sep DETROIT AND THE PENIN- _._ , 7 . SULAR SAVINGS BANK OF DE- APPELLANTS; TROIT AND GEORGE ALLAN SYMES RESPONDENT. (THE CITY OF WINDSOR.) ON APPEAL FROM THE TORONTO ADMIRALTY DISTRICT. Maritime law—Inland Waters—Master's lien for disbursements and liabilities on account of the ship-56 Vict. c. 24—Priority of lien over mortgage—Master's authority to pledge the ship. The object of the Act of the Parliament of Canada 56 Vict. c. 24, entitled An Act to amend " The Inland Waters Seamen's Act," is to give the master of a ship navigating the inland waters of Canada above the harbour of Quebec a lien for disbursements made and liabilities incurred by him on account of the ship in all matters in which, prior to the case of The Sara (14 App. Cas. 209), it had been held by the courts in England that a master of a ship had such a lien for his disbursements. 2. The master's lien for disbursements and liabilities of this character is preferred to the claim of a mortgagee taking possession after such disbursements had been made and such liabilities incurred. 3. The rule that the master has authority to borrow money on the ship and to pledge the owner's credit whenever the power of communication is not correspondent with the existing necessity, applies as well to a case where a vessel, subject to The Inland Waters Seamen's Act, is in a home port as where she is in a foreign one. APPEAL AND CROSS-APPEAL from a judgment of the Local Judge for the Toronto Admiralty District (1). The facts of the case are stated in the judgment. The case on appeal was argued on the 14th day of May, 1895. O. E. Fleming for the appellants : (1) Reported ante, p. 362.
VOL. 1.V.1 EXCHEQUER COURT REPORTS. 401 i submit that there is no maritime lien in Ontario 1895 for necessaries and disbursements of themselves ; and P ...BIRD the captain cannot go and make a debt and so create a BTI o f maritime lien against the ship. That being the case DETROIT the only w ' a m y a a ritime lien can be created is b AND THE y l'EN INBIILAR statute, and this is the first case in Ontario where it SAVINGS B ANK OF has been sought to create a maritime lien by the master_ D ETROI T for necessaries and disbursements. Under the Imperial SYaMES. Act of 1861, section 10, it was supposed, until the . Arl;unten . t decision in the The Sara (1), that he could create a orCounsel• maritime lien in his favour for his disbursements and liabilities. That doctrine was overruled in the case of The Sara. This caused the Imperial Act of 1889 to be passed.. That and our own Act of 1893 are in, substance the same. Other cases prior to • the Imperial Act of 1889, ' which the learned judge has referred to in the court below, assumed that disbursements would create a lien.. They are the cases . of Morgan y. Castlegate (2). The earlier cases assumed that the lien existed under the Act of 1861, but it must be remembered that the Act of 1889 did not create a greater lien or higher lien than was thought to have been created by the Act of 1861. There was a distinction drawn under the Act of 1861 between liabilities and disbursements,—it was held by Dr. Lushington that the master, had a lien for disbursements and not for liabilities generally. Where I find fault with the judgment in this case is that while the learned judge of the court below cites authorities to show the authority of the master to incur liabilities on behalf of, the owner, as his agent, the cases are really only those where parties have brought ordinary actions against the owner for goods supplied, to the master. It is not shown that they created a maritime lien against the vessel. (1) 14 App. Cas. 209. (2) [1893]'A. C. 38. . 26
402 EXCHEQUER COURT REPORTS. [VOL. IV. 1895 I say the Orienta case goes to show that he had no THE THIRD right to do this when the owner resided in Canada. NATIONAL That case was decided in November, 1894, in the Di-BANK OF DETROIT visional Court and on appeal in February, 1895. We are AND THE PENINBIILAR m or g t a ~ e e s here and in a better position than the owner SAVINGS would be in the Orienta case. BANK OF DETROIT The test appears to be, under the decisions, could the SY V. master here have made a bottomry bond so as to create a maritime lien ? Argument of Counsel. [By the Court : Would you have to go as far as that ?] I submit almost as far. The decisions are that a master could not make a bottomry bond so as to bar a mortgagee where he could have communicated with the owner. Now the Imperial Acts have almost done away with the necessity of bonds in any case, on account of the easy means of communication now existing between the various countries. _ [He cites The Lizzie (1)]. That was a contest as to the validity of a bond. because the m aster did not communicate with the owner. Held, as a fact, that under the circumstances there he could not have communicated with the owners. Supposing the owner could have been communicated with and the master did not, but acted in collusion with the creditors, could the creditors secure a lien against the ship ? .I submit not. The owner was not supplying the goods himself. The facts are that the owner said to the master : " Do as well as you can with her." [He cites The Karnak (2).] This is a judgment of Sir Robert Phillimore. I call your lordship's attention to pp. 299, 300, 301, 303, 305, 306. See also the cases of The Panama (3) and The Great Eastern (4). There are some cases where it is discussed whether the master had a maritime lien in England on (1) L.R. 2 Ad. & E. 254. (3) L.R. 2 Ad. & E. 390. (2) L.R. 2 Ad. & E. 289. (4) L.R. 2 Ad. & E. 88.
VOL. IV.] EXCHEQUER COURT REPORTS. 403 a vessel for liabilities incurred in a foreign port because 1895 in such foreign port he -would have had a maritime TgTI RD lien. • NATIONAL • ' BANK OF There are also cases going to show that if the owner DETROIT has an a g gent at a foreign port the master cduld not AND THE make a bond so as to create a maritime lien, because SAYINGS BANK OF the agent of the owner at that port is the proper per- DETROIT son to create a lien or liability. SY MES. I submit that under 'the cases from 1861 down to Argument the present time the master has not been allowed under of Counsel. circumstances that exist in this case, where the master is in a home port and the owner could have been corn-, municated with, to create a maritime lien as against the ship. Mr. Canif for the respondent : The Imperial_ statute of 1889 was passed in consequence of the 'decision in the case of The Sara (ubi sup.) It was supposed until the time of that decision in the House of Lords that a maritime lien existed for master's wages and disbursements. In The Sara it was held that he had a right in rem against the ship, but that right would be subject to any mortgages on the register. This Act of1.889 gives a lien for wages and disbursements for.the master although ydur lordship, I think, makes some distinc-` Lion in the case of Bergman v. The Aurora ̀( . 1) as- to vessels running between home and foreign ports and those confined altogether to home ports. But `as to that it appears in evidence in this case that this boat did also run to foreign ports. But however 'that might be it has 'been decided in Canada in the case of Reide v. Queen of the Isles (2), that the master has a maritime lien for his . Wages as well' as for disbursements 'and ' liabilities. Bÿ 'the Canadian' Admiralty Aet of 1891 it is enacted (seétign 4) that all persons shall have all rights and remedies (1) 3 Ex.'C. R. 228. (2) 3 Ex. C. R. 258. %
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404 EXCHEQUER COURT REPORTS. [VOL. IV. 1895 in all matters arising out of or connected with naviga-TH THIRD tien, shipping, trade or commerce which may be had NATIONAL of or enforced in any colonial Court of Admiralty under BANK DETROIT The Colonial Courts of Admiralty Act, 1890. That Act of AND THE PENINSULAR 1 890gives all the rig to hts and remedies which could be SAVINGS enforced in England. I submit that the Act of 1889 BANK OF DETROIT did apply and does apply under the Canadian Admi- ralty Act of 1891; and that we have a binding judgment SYMES. — of a judge of this court, in the case last cited, deciding Argument of Counsel. that the master has a maritime lien in Canada. That being so, I submit that using the same words in the Act of 1893 amending The Inland Waters Seamen's Act as the Parliament of Canada has done that we must apply the rule that where a judicial interpretation of a statute is made and an Act is passed in the terms of the judicial interpretation it must be taken as a legislative sanction of such interpretation: If it had not been for the decision in The Orienta case, it would not have been so clear that a maritime lien could not have been acted upon. But I submit that the decision in. that case is not an authority in the present one because in that case there was a fraud upon the mortgagee. It was said there that it was an ingenious device to create a maritime lien to get ahead. of a mortgage. That is a very different case from this one. I say that the test applied by Sir Francis Jeune is an artificial one. He admits that the master would have a right in rem if there were no mortagees intervening. His test of a lien arising under the Act of 1889 is whether the disbursements or liabilities of the master are such as would, without express authority, have pledged the owner's credit. Now in this case of ours there are letters from the owner to the master to the effect that the latter must try and make the vessel pay her own way.
VOL. IV.] • EXCHEQUER COURT REPORTS. • My learned friend has,said there are no cases 'which show that the master has a. maritime lien in a home port. I call your lordship's attention to the • ments of counsel in the Orienta appeal. I refer .pour D lordshipto the cases there mentioned, as byso dain it will obviate any more detailed reference to them.. B They are the Glentanner (1) ; The Chieftain (2) ; Mary Ann (3).; The Feronia (4). It becomes. necessary for us to apply the test referred to by Mr. Justice Jeune. What is - the implied authority ? Now in the first place your lordship roast remember that this steamer was a ship carrying freight where it could be got. She was a. general ship, advertised to run two trips daily. The master had to have provisions, had to have coal and to get it from day to day in order to keep faith with the public if she was to be kept on that route. I refer your lordship to 111aclachlan on Shipping, 3rd. ed., at pp. 133 and 142. The rulh laid down by Maclachlan, .and adopted by the learned judge of the court below, is that,the master has an implied authority to borrow money on the ship and to pledge the ship, . whether the owner is communicated with or not, for .. necessaries. (He cites Johns v. Simons Barton (6). 1Vly learned friend has said that the• cited do not bear on this point. Now Mr. Justice Macdougall shows in his judgment that the master could not have got goods on the owner's credit. Then he had to get them on • his own credit, and he has a. lien therefor. • (He cites Webster v. Seakamp (i) ;, Gunn v. Roberts (8) ; The Red Rose (9). (1) Swab. 415. (5) 2 Q. B. 425. (2) Br. & Lush, 104. (6) 6 M. & W. 138. (3) L. R. 1 Ad. & E. 8. (7) '413. & Aid. 354, (4) L. R. 2 Ad. & E. 65. (8) L. R. 9 C. P. 331. (9) L. R. 2 Ad. & E. 80. 405 1895 T~ T IIIRIf • a rgu- NATIONAL BANti OF ETROIT AND THE g,P E NIN süLAR V IN oS The DETROIT v. SriJs • Argament of C w o uneel. (5) ; Arthur. v:,`'• cases
406 EXCHEQUER COURT REPORTS. [VOL. IV. 1895 The position the plaintiff holds is this : he comes to THE THIRD court and says, I am liable for these necessaries although NATIONAL I have not paid for them, but I am entitled to be BANK. OF DETROIT indemnified out of the boat. There is no difference AND THE PENINSULAR whether they are disbursements or liabilities, that is SAVINGS clearlylaid down in the Orienta case. BANK OF DETROIT The rule of law laid down as a test is this : is the v. SYME9. power of communicating with the owner correspondent with the necessity ? [(He cites Maclachlan on Shipping Argument of Counsel, (1) Your lordship will not find any reason to reverse the finding of fact on this point. Mr. Fleming, in reply, cites the Fleur de Lis (2). He maintains that the case of Reide v. Queen of the Isles (ubi sup). is entirely overruled by the Orienta case. Mr. Canif, in reply on cross-appeal, cites Kay on Shipping (3) ; Smith an Mercantile Law (4). THE JUDGE OF THE EXCHEQUER COURT now (September 7th, 1895,) delivered judgment : This is an appeal by the defendants, The Third National Bank of Detroit and The Peninsular Savings Bank of Detroit, from a decree of the Judge of the Toronto Admiralty District whereby he pronounced in favour of the respondent, the master of the ship The City of Windsor, for part of his claim for disbursements made and liabilities incurred for necessaries on account of the ship, and for damages for wrongful dismissal. There is also a cross-appeal by the respondent in respect of the part of his claim that was disallowed. The City of Windsor was a steamer registered at the port of Windsor, in the Province of Ontario. In 1894, during the time that the respondent was master of her, •s he was employed as a passenger and freight boat between the cities of St. Catharines and Toronto, and (1) 3rd. edition, pp. 131, 139. (3) 2nd ed. p. 47. (2) 1 Ad. & E. 49. (4) 10th ed. 338.
VOL IV.] EXCHEQUER COURT. REPORTS. was subject to the provisions of Seamen's Act (1). By an amendment of•that Act made on the 1st of April, 1893, it is provided that master of any ship subject to the provisions of this DETROIT Act shall, so far as the case permits, have the same rights, liens and remedies for the recovery of his wages, S and for the recovery of disbursements properly made by him on account' of the ship, and for liabilities pro- .' perly incurred by him on account of the ship, as by this Act or, bÿ any law or custom any seaman notjud being a master has for the recovery of his wages:" (2). The appellants, who were mortgagees of the ship, and who in August, 1894, took possession of her and dismissed the master, e ntend that under the circum- stances of this case the master has no maritime lien in respect of any liability incurred by him on account of the ship ; that she was registered and employed in'the Province of Ontario, and that the owner was at the . time domiciled there ; that recourse could have been had to him, and that the master had no authority to incur liabilities for necessaries for the ship, or if he such authority that he could not'by incurring them create & maritime lien for such necessaries. The owner could not himself so contract for necessaries for the ship as to create any such lieu ; and it was argued that his agent in a home port was in this respect not in any better position. It is clear of course that there is no maritime lien for necessaries supplied to a ship, and that the owner has no power to create any such. lien. The High Court of Admiralty in England has jurisdiction over any claim for necessaries supplied to any ship elsewhere than at the port to which the. ship. be- longs, unless it is shown to the satisfaction of the court' that at the time of the institution of the cause, any owner or part owner of the ship is domiciled in:.Eng- (1) R. S. C. e. 75 s. 2 (f). . (2) 56 Vict. 407 The Inland Waters 1895 Tg T I RD the NATIONAL " BANK OF , PAJNIDNBMULIAR AviNas BANK OF DETROIT YM v' E s. '"" 'seasons P enc. had • c: 24.
408 EXCHEQUER COURT REPORTS. [VOL. 1V. 1895 land or Wales (1). This court has in a like case a like THE HIRD jurisdiction where there is no owner or part owner NATIONAL domiciled in Canada (2). But the person supplying BANK OF DETROIT such necessaries has no maritime lien on the ship, AND THE PENINSULAR whether they are ordered by the owner or master. SAVINGS BANK That, however, is not the question at issue in this OF DETROIT case. The question is : Has the master by virtue v. SYMES. of the amendment of The Inland Waters Seamen's Act (3), a lien for disbursements properly made by nea$ou, Judgmne nt. him and for liabilities properly incurred by him on account of the ship, and is his claim to be preferred to that of the mortgagee ? The language of the statute is that so far as the case permits he is to have the same rights, liens and remedies for such dis- bursements and liabilities as a seaman has for the recovery of his wages. In the case of seamen's wages there is such a lien and it has priority of any claim by the mortgagee. That is not disputed ; and there can be no doubt, I think, that the object of the amendment to which I have referred was to give the master of a ship navigating the inland waters of Canada above the harbour of Quebec a lien for disbursements made and liabilities incurred by him on account of the ship in the cases in which, prior to the case of The Sara (4), it had been thought that a master of a ship had such a lien for his disbursements. The amendment is founded upon and follows closely in that respect the first section of The Merchant Shipping Act, 1889 (5). It was passed after a construction had been put upon the latter statute in the case of The Castlegate (6), and should be construed in the same way as that statute. The Act and the cases in the light of which it is to be (1) 24 Vict. U. K. c. 10 s. 5. (3) 56 Vict. c. 24. (2) The Colonial Courts of Ad- (4) 14 Ap. Cas. 209. •miralty Act 1891, s. 2 ss. 3 (a). ; (5) 52 & 53 Vict. (U. K.) c. 46. Admiralty Rules Nu. 37 (b). (6) [1892] A. C. 38.
VOL. IV.] EXCHEQUER COURT REPORTS. construed have been very fully and ably discussed by" the learned Judge of the Toronto Admiralty 'District ;-' and I content myself with saying that I agree with N him in the construction' that he has' put upon it'.. It : DETRoz~ cannot be doubted, I think, that in such. a case as this AN the master has a maritime lien not only for his wages, ' SAVINGS but also for disbursements properly made by him on -account of the ship, and for liabilities properly incurred Sx S by him on account of . the ship, that is for disburse- ments necessarily made, and for liabilities necessarily a. ens. incurred by him on account of the ship while acting within the scope of his authority as master. What that authority may be in a particular case will depend upon the facts and circumstances of the case. The general rule as stated in .Maclachlan on Shipping (1), is that the master has authority to borrow money on the ship and to pledge the owner's credit whenever the power of communication is not correspondent with the existing necessity. With reference to sea-going ships the means of communication between the master and the owner, and the latter's opportunities for personal interference and direction are ordinarily greater in a home port than in a foreign port, and in that way the mastex's authority is usually larger, and, more readily conceded where the ship is in a foreign port. .But.. while it may require stronger circumstances to establish the fact of its being necessary to make the disbursement or incur the liability where the ship is in a. home port, the principle in both cases is the . same. [Arthur v. Barton (2).] In fact with reference to vessels navigating the inland waters there is little room' for any distinction, and it is not at all clear that any should be made. If The Cite of Windsor in the United States, the means of communication . . between the master and owner would have been the (1) 4th Ed. p. 146. (2) 6 M. & W. 138. _ 409 1895 RE THIRD ATIONAL I 3 ANg or=• PE n N I T NB H II E LA R BANK OF . DETROIT Reasons had been at Detroit
410 EXCHEQUER COURT REPORTS. [VOL. IV. 1895 same practically as if she had been at Windsor where TEE T RD she was registered and where the owner resided, and NATI ON L O much greater than when she was at St. Catharines or BANK A DETROIT Toronto. AND THE P E That disposes of the principal question of law raised SAVINGS on the appeal. The other questions discussed have BANK OF ETROIT reference to the findings of the learned judge with respect to the particular items of the claim that SYMES. should be allowed or disallowed. Of the amount of Reasons for $1,326.17 for which the respôndent had judgment, the sum of $130 was allowed for wages and board in lieu of a month's notice of dismissal, and the sum of $7.50 for a disbursement actually made for coal for the use of the vessel. To these two items the appellants do not object. Their objection is to the sums allowed for liabilities incurred by the master. These liabilities were incurred for the most part for repairs and for fuel and provisions for the ship. The fuel and provisions had to be procured from day to day to enable the vessel to make her daily trips between St. Catharines and Toronto. The owner had no agent and little or no credit at either city. He had not provided funds to meet the necessary expenditure for such necessaries and the earnings of the vessel were not sufficient to enable the master to provide them without incurring a personal liability. In the master's incurring the liability there was no attempt to give, and no thought of giving, the persons supplying the goods any priority or advantage over the mortgagees. On the contrary the owner appears to have been ready to do what he could to assist or protect the latter, as was right enough, and equally willing apparently to let the master and the tradesmen look out for themselves as best they could. The case is not in respect of any part of the claim that was allowed analogous to the case of The-
VOL. IV.] EXCHEQUER COURT REPORTS. Orienta (1). Of the items allowed I have had more doubt about those for advertising than I have had about the others. Bat these questions, both as to the items allowed and those disallowed are questions of fact, as to which the findings of the learned jri are not to be lightly disturbed. Appeal, and cross-appeal, dismissed with costs. Solicitor for appellants : O. E. Fleming. Solicitors for respondent : Canif sr (1) 118941 P. I). 271 ; 118:)51l'. D. 50,. 411- 1895 THE THIRD NATIONAL BANK OF DETROIT -1 — • AND THE SAVINGS BANK OF DETROIT' O. SruEs' Reasons Canif. for Judgment.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.