Green v Briggs
| Jurisdiction | England & Wales |
| Judgment Date | 12 April 1848 |
| Date | 12 April 1848 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 1219
HIGH COURT OF CHANCERY
S. C. 6 Hare, 632. See Vanner v. Frost, 1870, 39 L. J. Ch. 626; Japp v. Campbell, 1887, 57 L. J. Q. B. 81.
[395] green v. briggs. nok-g, 8, 9, 13, 1847; April 12, 1848. [S. C. 6 Hare, 632. See Fanner v.- Frost, 1870, 39 L. J. Ch. 626; Japp v. Campbell, 1887, 57 L. J. Q. B. 81.] Part-owners are tenants in common of a ship, but jointly interested in her use and employment; and the law as to the earnings of a ship, whether as freight, cargo or otherwise, follows the general law of partnership. A part-owner "of a ship has a right to require the gross freight to be applied, in the first place, in payment of the expense of the outfit of the ship for the voyage in which the freight was earned, notwithstanding he might sue his co-owners for their proportion of the expenses before the adventure ends. The same rule applies to the expenses of repairs to the hull of the ship, where such repairs were done with a view to the particular adventure in which the earnings were made, and without which that adventure could not have been undertaken; 1220 GREEN V. BRIGGS 6 HARE, 396. and it would seem that the circumstance that such repairs are not exhausted in the adventure does not create any exception to the rule. The term " lien " does not properly describe the right of a part-owner to be reimbursed, out of the gross freight, the amount of expenses incurred in the prior repair and outfit of the ship. The object of this suit was to determine which of the parties was entitled to a sum of £6939, 12s. 8d., the earnings of the ship "Thames," made during the years 1841, 1842 and 1843, in a voyage from England to Calcutta and the China seas. The claimants were, 1, the Plaintiff, who was the registered owner of 8-64ths of the ship, and was also the managing owner or ship's-husband, in which capacity he had expended and become liable to pay a sum of money, exceeding the £6939, 12s. 8d., for the repair and outfit of the ship, preparatory to the voyage; and 2, Briggs, Thor-burn & Co., who were mortgagees of 56-64ths of the ship and freight, to secure a sum of money (exceeding the amount in question) owing to them from the mortgagors, Acraman & Co., the registered owners of such 56-64ths. The mortgage was made during the voyage, and, therefore, after the expenditure in the outfit and repairs had been incurred. Acraman & Co. had become bankrupts, and their assignees were parties to the suit. The Plaintiffs proportion of the ship's earnings, in respect of his 8-64ths share, had been paid to him, and the residue, representing the proportion attributable to the other 56-64ths (amounting, to the said sum of £6939, 12s. 8d.), awaited the result of the suit. The bill prayed that this sum might be applied towards the payment of the expenses to which the Plaintiff had made himself liable for the outfit and repairs of the ship before she sailed in July 1841. [396] Mr. Eomilly and Mr. Roundell Palmer, for the Plaintiff. Mr. Wood and Mr. Cairns, for the Defendants, Briggs, Thorburn & Co. Mr. Walker and Mr. Osborne, for the assignees of Acraman & Co. The cases referred to in the judgment and the following cases were cited. On the argument whether freight was necessarily incident to, and would pass with, the transfer of the ship, or whether the right to freight remained in the owner, by whom the transfer was made-^Morrison v. Parsons (2 Taunt. 407), Dean v. McGfhie (4 Bing. 45), Case v. Davidson (5 M. & Sel. 79), Langton v. Horton (5 Beav. 9; S. C. 1 Hare, 549), Stephenson v. Dowson (3 Beav. 342), Sptidt v. Bowles (10 East, 279), Davenport v. Whitmore (2 M. & C. 177), Douglas v. Russell (4 Sim. 524), Kerswill v. Bishop (2 C. & J. 529). On the question how Jar owners of ships were, in that character, subject to the general law of partnership and to the consequent liabilities-Wilson v. Dickson (2 B. & A. 2), Exparte Bowes (4 Ves. 168), Dale v. Hamilton (5 Hare, 369), Elliot v. Browne (3 Swanst. 489, n.) and Ex parte Bland (2 Eose, 91). April 12, 1848. the vice-chancellor [Sir James Wigram]. The Plaintiff was the registered owner of 8-64ths or l-8th, and Messrs. Acraman & Co., of Bristol, of the [397] other 56-64ths or 7-8ths of the ship "Thames;" and the Plaintiff was also the managing owner or ship's-husband. In 1840, preparatory to a voyage then contemplated, the Plaintiff, as managing owner, caused the ship to be extensively repaired, refitted and fitted out for her voyage. In July 1841 the ship sailed from the port of London for Calcutta, with instructions to the master, after discharging his cargo at Calcutta, to accept such employment of the ship in the China seas as, upon communication with the agents of the owners at Calcutta, he should deem advisable. The repairs, refitting and outfit of the ship appeared to have been made, in the first instance, in the hope or expectation that the ship would have been taken up and employed by the East India Company for the transport of troops from this country. That, however, was not done; but, after her arrival at Calcutta, she was employed in the China seas, and continued to be so employed down to March 1843, and earned freight to a large amount. In the spring of 1843 the ".Thames " sailed'from Calcutta for England, and arrived in the port of London in September 1843. On this homeward voyage she earned some further freight, but which did not exceed her expenses; and, shortly after her arrival at home, she was sold and broken up. By a bill of sale, dated the 30th of November 1841, after the departure of the ship on her voyage, the Acramans transferred to the first-named Defendants in the cause, who were trading; under the firm of Briggs, Thorburn & Co., of London, their 56-64ths of the ship, by 6 HAKE, 398. GEEEN . V. BRICJGS 1221 way of mortgage for securing to them £15,000 and interest, and, on the 2d of December 1841, the mortgage was registered. By an indenture of assignment of the 30th of November 1841 (the same date as the bill of sale), and made between the Messrs. Acraman, of the one part, and the Defendants, Briggs, Thorburn & Co., of the other part, the Acramans assigned to Briggs, [398] Thorburn & Co. all their shares in the ship, and all sums and sum of money then due, owing or payable, or to become due, owing and payable, for freight and earnings, for any voyage of the ship from Calcutta to any place abroad, or for her voyage from Calcutta or any place abroad to this country, and in all charter-parties and contracts for freight, to secure the £15,000 and interest mentioned in the aid bill of sale. On the 13th of December 1841 Briggs, Thorburn & Co. gave the Plaintiff notice of these assignments. On the 30th of March 1842 the Plaintiff received a further notice from the same parties of another indenture, dated the 23d of March 1842, and expressed to be made in pursuance of the covenant for further assurance in the assignment of the 30th of November 1841. The effect of the indenture of the 30th of March 1842 was (so far as the object of this suit is concerned) merely to adapt the language of the security to the state in which the earnings of the ship might, at the time of the new security, be supposed to be. On the 30th of November 1842 the Acramans stopped payment, and, on the llth of June 1842, a fiat in bankruptcy was issued against them, and the three last Defendants on the record were appointed their assignees. Fergusson, Brothers & Co., of Calcutta, were the agents there of the Acramans, down to the time of their stoppage, of Briggs & Co. and also of the ship "Thames." The firm of Fergusson, Brothers & Co. received the ship's earnings; first, on the voyage to Calcutta; and, secondly, in respect of her employment there, down to April 1842, and made disbursements, on account of the ship, down to the 24th of June 1842. Upon the stoppage of the Acramans, the Plaintiff and Briggs, Thorburn & Co. appointed Maekillop, Stuart [399] & Co. their agents in Calcutta, in respect of the ship, without prejudice to any question as to the application of her earnings. This was done under a power of attorney, dated the 29th of April 1842, directing Maekillop to receive the ship's earnings, and remit them to Palmer, Maekillop & Co., of London, to the joint account of the Plaintiff and Briggs, Thorburn & Co., of London. It appeared that an agreement of the same date was made between the same parties, by which it was agreed that what was then done with the freight should be without prejudice to its application afterwards. After this -Fergusson & Co. closed their account in respect of the ship, and remitted to Briggs, Thorburn & Co. £693, 3s. 4d., the balance of the ship's earnings in their hands. Maekillop & ,Co., of Calcutta, received the further earnings, and remitted the same to Palmer & Co., of London, who deducted expenses and payments made to the Plaintiff; after which there remained in their hands £6246, 9s. 4d., representing the net earnings received after the 30th of April 1842 down to the commencement of the ship's homeward voyage. By the consent of the Plaintiff and Briggs, Thorburn & Co., this sum was paid into, and has since remained, in the Bank of England, in the joint names of the Plaintiff and the Defendant, Robert Thorburn, to abide the result of the suit. The Plaintiff has received out of the ship's earnings money equal in amount to his 8-64ths or l-8th share. The £693, 3s. 4d., in the hands of Briggs, Thorburn & Co., and £6246, 9s. 4d., in the Bank of England, making together £6939, 12s. 8d., represent the 56-64ths or 7-8ths of the ship's earnings during the whole period, from the time she left England in July 1841 until her return in March 1843 : that is, treating the expense of the homeward voyage as precisely a set-off against the expenses. If all the expenses of repairs, refitting and fitting out before she sailed in July 1841 had been paid by the owners in proportion [400] to their respective shares...
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