Bristow v Whitmore
| Jurisdiction | England & Wales |
| Judgment Date | 04 June 1859 |
| Date | 04 June 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 126
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD.
S. C. Johns. 96; 6 Jur. (N. S.); 29; 28 L. J. Ch. 801; 9 W. R. 621; 8 Jur. (N. S.), 291; 4 L. T. 622; 9 H. L. C. 391; 11 E. R. 781 (with note). See the "Feronia," 1868, L. R. 2 Ad. & E. 75; "The Two Ellens," 1871, L. R. 3 Ad. & E. 359.
[326] bristow v. whitmori. Before the Lord Chancellor Lord Chelmsford. June 3, 4, 1859. [S. C. Johns. 96; 6 Jur. (N. S.); 29; 28 L. J. Ch. 801; 9 W. E. 621; 8 Jur. (N. S.), 291; 4 L. T. 622; 9 H. L. C. 391; 11 E. E. 781 (with note). See the " Feronia," 1868, L. R 2 Ad. & E. 75; "The Two Ellens," 1871, L. E. 3 Ad. & E. 359.] A master of a ship has not, according to English law, any lien on the freight for money expended in fulfilling a charter-party, and it makes no difference that the particular expenditure was expressly required by the terms of the contract^ and that the master had no means of meeting it, nor that the charter-party is under seal and made by the master himself, so that the freight could only be recovered in his name. This was an appeal of Defendants from the decision of Vice-Chancellor Wood, declaring that the Plaintiff, who was the master of a ship, was entitled as against all persons interested in the freight to be indemnified out of it in respect of his expenditure and liability incurred in providing for the vessel's fittings and provisions, in the fulfilment of the obligations specifically imposed on the owners of the ship as to the fittings and provisions of the ship by the terms of certain charter-parties, which were entered into by the master abroad, and one of which was under seal. The grounds of the decision were, that the charter-parties could not have been obtained without these stipulations, and that the master could not perform them without incurring the expenses and liability in question ; that consequently the parties claiming the benefit of the charter-parties could only obtain it upon the terms of discharging the obligations to which they were subject, and that as regards the last-mentioned charter-party, this circumstance, either with or without the additional one, that under the charter-party the legal title to sue was in the master only, withdrew the case from the authority of those deciding that by the English law the master has no lien for his outlay in respect of repairs, wages or stores on the voyage. The charter-party which was under seal was dated the 19th of April 1856, and made between the Plaintiff, who was described as commander of the vessel, of the one part, and the agent of the Commissioners of the Admiralty at the Mauritius of the other part, and by it [326] the Plaintiff let and the Admiralty agent hired the vessel, which was called the "Kenilworth," to convey troops from the Mauritius to Gravesend. And the Plaintiff thereby agreed to furnish such provisions, and to put up at the expense of the ship such fittings as would be required for the use of the troops, subject to the approval of the Deputy-Quarter-Master-General. The other charter-party was made on the homeward voyage at the Cape of Good Hope, and was dated the 27th of May 1856. It was made between the agent of the Admiralty at the Cape of the one part, and the Plaintiff, described as the master of the ship, of the other part. This was also a contract for the conveyance of troops, and to supply them with provisions on the voyage, and also to fit up the vessel according to a specification and report annexed to the charter-party, at the expense of the vessel. The Plaintiff had expended, in complying with the requirements of one charter-party 810, 12s. 9d., and with those of the other 715, and had defrayed these expenses partly by his own monies, and partly by bills drawn by him on the shipowner. On the ship's arrival at Gravesend, Messrs. Robinson and Fleming two of the Defendants, who were transferees of a mortgage made in April 1855 on the vessel, took possession of her, and the owner was adjudicated bankrupt. Conflicting claims were made to the freight by the master in respect of his outlay, and by the mortgagees, who claimed to receive the freight without deduction on this account, and the Admiralty refused to pay either party till the dispute was settled, and ultimately paid the money into Court in the suit. [327] The case is reported on the hearing before the Vice-Chancellor in Mr. 4DECK&J. SM. BRISTOW V. WHITMOHB 127 Johnson's Reports (page 102), where, and in the Lord Chancellor's judgment (post, 329), the facts are fully stated. Mr. Rolt and Mr. Baggallay, for the Plaintiff, in support of the decree. The circumstances of this case are altogether different from those of Hussey v. Christie (9 East, 426X and the other cases in which the Master has been held to have no lien. And in Smith v. Plummer (1 B. & Aid. 575), which was relied upon below on the part of the Appellants, both Lord Ellenborough and Mr. Justice Abbott left open the question of a lien for the current expenses of the vessel. Here the charterers required, before they would enter into the charter-party, that the ship should be fitted up and victualled in a proper manner to carry troops. It is not disputed that the master had authority to engage the vessel for that purpose, or that this was the most advantageous and profitable employment for her which he could procure. The freight of the ship is in fact the money agreed to be paid, less the outlay for refitting and victualling her. As regards one of the charter-parties neither the mortgagees nor the assignees of the owner can obtain the freight by suing in their own names, the instrument being under seal, and in the name of the master. The money must be recovered by him or in his name, and he may of course deduct his expenses. They also referred to Green v. Briggs (6 Hare, 395). Mr. Amphlett and Mr. E. Macnaghten, for the Appellants, the mortgagees. [328] The decision under appeal is the first exception to an uniform series of decisions, which have settled that the master has no lien on the ship or on her freight for the expenses of the voyage. When the mortgagee of a ship takes possession of her, he is entitled to the gross freight without any deductions; Dean v, M'Ghie (4 Bing. 45); Kersunll v. Bisluop (2 Cromp. & Jer. 529); Cato v. Irving (5 De G. & S. 210). It is like the case of a mortgagee of land, who, on taking possession, is entitled to the growing crops, without any deduction for the cost of cultivation. There is no lien in equity, unless there is any at law, and that there is none at law is decided by Smith v. Plummer (1 B. & Aid. 575); Stainbank v. Penning (11 C. B. 51) ; Stainbank v. Shepard (13 C. B. 418). It is said that Lord Ellenborough left open the question, but there is obviously some mistake in the report. It has been argued that the rule may operate unjustly, but the answer that has always been given to this argument is, that the rule is well established and known, and that any master advancing money does so with the full knowledge that he has no lien on the freight. la case* of necessity he can borrow on a bottomry bond, and this is the' proper and usual course to adopt. If the rule was that the master had a lien, the: owner could not deal with the ship or the freight until the accounts with the master were settled, which would lead to the greatest inconvenience. The Merchant Shipping Act has altered the law as to this in one respect, for by the 191st section of that Aclj the master has now a lien for wages. But in other respects the old law remains,: which excludes any lien for advances made by the master. The distinction on which the Vice-Chancellor proceeded, between expenses incurred in fulfilling express stipulations in the charter-party and others re-[329}-quired for the general purposes of the ship, is, we submit, without foundation. Both descriptions of expenses are equally requisite to enable the ship to earn the freight, and the circumstance of one being expressly, and the other impliedly, contracted for can make no difference on principle. Nor is it material that one of the charter-parties is under seal. It is true that the mortgagees must sue in the name of the master. But they are, as a matter of course, entitled so to sue without any terms being imposed upon them, beyond those of indemnifying the master against any costs or damages in the action. He became their agent the moment they took possession. They also referred to Gibson v. Ingo (6 Hare, 112); Atkinson v. Cotesworth (3 B. & C. 647); Higgins v. Senior (8 M. & W. 834); Beckham \. Drake (9 M. & W. 79); Case v. Damson (5 M. & S. 79); Morrison v. Parsons (2 Taunt. 407); Lindsay v. Gibbs (22 Beav. 522); Rooke v. Kensington (2 K. & J. 753); Lister v. Payn (11 Si'm. 348); Gladstone v. Birley (2 Mer. 401). Mr. Rolt, in reply. Judgment reserved. The following written judgment was delivered out to the parties by lord chelmsford, after he had resigned the Great Seal:- 128 BBISTOW V. WHITMORE 4DE0.tcJ.J30. The question in this case is, whether the master of a vessel has any equitable right to indemnity out of the freight in respect of advances made, and bills of exchange drawn by him, for the purpose of enabling him to adapt the vessel to the specific performance of two charter-parties, which he entered into with the Commis-[330]-sioners of the Admiralty at the Mauritius and Cape of Good Hope, the former being under seal, the latter not under seal. Tha bill was filed, praying that it might be declared that the Plaintiff is entitled to be repaid out of the monies due from the Commissioners of the Admiralty the sum of 64, 17s, 2d. and 27, 7s. 9d., and also to be indemnified out of the said monies against the amount of the several bills, and against all claims and demands whatsoever which have been or may be made upon him by reason or on account of such bills, or any of them, and against all costs and expenses which have been or may be incurred or sustained by him in...
To continue reading
Request your trial
-
Marsh v Keith
...[346] Order. He referred also to the Improvement of Jurisdiction of Equity Act (15 & 16 Viet. c. 86, s. 50), and Endow v. Whitmore (4 K. & J. 743). My client is not concerned in the relief first asked; the question is therefore immaterial. Mr. Baily, in reply, was confined to the question o......
-
Frederick Bristow, - Appellant; William Whitmore and Others-Respondents
...and Others-Respondents Mews' Dig. xi. 570, 1016; xiii. 98, 102. S.C. 31 L.J.Ch. 467; 8 Jur. N.S. 291; 4 L.T. 622; 9 W.R. 621; and, below, Johns. 96; 7 W.R. 150. On point as to master's lien, distinguished in The Two Ellens, 1871, L.R. 3 Ad. and E. 359; and cf. The Feronia, 1868, L.R. 2 Ad. ......
-
Lyall v Hicks
...the repairs gave him a lien on the freight, and that the Plaintiffs were entitled to the benefit of this lien; tiristaw v. HHiitniore (I Johnson, 96; since reversed by Lord Campbell (L. C.), G Jur. 29). [619] That the second bill for 2000 represented the freight and had been specifically ap......
-
Condemnation, Credit, and Corporations in Washington: 100 Years of Judicial Decisions-have the Framers' Views Been Followed?
...Gardner-the importance of public purpose and the extent of public control to minimize the risk of loss). 133. See, e.g.. In re Marriage of Johnson, 96 Wash. 2d 255, 261-62, 634 P.2d 877, 881 (1981) (opinion in a § 5 case signed by only three judges, with three others concurring in result on......
-
An Analytical View of Recent "lending of Credit" Decisions in Washington State
...VIII, Sections 5 and 7: An Examination of the Provisions, Their Impact and the Prospects for Change (1979). 5. See, e.g., Johnson v. Johnson, 96 Wash. 2d 255, 264-68, 634 P.2d 877, 882-84 (1981); Reich, Lending of Credit Reinterpreted: New Opportunities for Public and Private Sector Coopera......
-
Financial Responsibility Assistance for Underground Storage Tanks: Can Washington State Run a Pollution Reinsurance Company?
...hereafter give any money . . . in aid of any individual . . . except for the necessary support of the poor and infirm . . ." Johnson v. Johnson, 96 Wash. 2d 255, 261, 634 P.2d 877, 880 (1981). See Spitzer, An Analytical View of Recent 'Lending of Credit' Decisions in Washington State, 8 Uni......
-
Judicial suicide or constitutional autonomy? A capital defendant's right to plead guilty.
...a defendant's right); Almy, 28 A. at 375 (asserting that a defendant's right to plead guilty has been historically recognized); State v. Johnson, 96 P. 26, 28 (Okla. 1908) (affirming the capital guilty plea and death sentence the court declared that "[u]ndoubtedly a prisoner of competent un......
-
New Jersey Register, Volume 49, Issue 13, July 3, 2017
...360 Page 252 49 N.J.R. 1855(a) 90. Caitlin Celebre 91. Cara Zoppina 92. Carmel Birney 93. Carol Anne Chupak 94. Carol Barron 95. Caroline Johnson 96. Caroline Kane 97. Carrie Graifer 98. Carrie Nugent 99. Carrie-Ann Feakes, School Psychologist, Westbridge Academy 100. Casey L. Nottingham [p......