The "Two Ellens'
| Jurisdiction | UK Non-devolved |
| Judgment Date | 01 February 1872 |
| Date | 01 February 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 361
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY.
Mews' Dig. tit. Shipping; A. IX. Mortgage; 4. Rights of Mortgagee; 6. Priorities; XIII. Freight; 3. Payment; a. III. on Mortgage; XXVI. Admiralty Law and Practice; 19. Necessaries; c. Lien. S.C. L.R. 4 P.C. 161; 41 L.J. Adm. 33; 26 L.T. 1; 20 W.R. 592;1 Asp. 208; and below, L.R. 3 Ad. and E. 345. See Dapueto v. Wyllie-The Pieve Superiore, 1874, L.R. 5 P.C. 489; The Aneroid, 1877, 2 P.D. 191; Laws v. Smith-The Rio Tinto, 1884, 9 App. Cas. 362; The Heinrich Bjorn, 1885-86, 10 P.D. 44; 11 App. Cas. 280; The Cella, 1888, 13 P.D. 85; Hamilton v. Baker-The Sara, 1889, 14 App. Cas. 225. As to Admiralty Jurisdiction of Privy Council, see note to Arnold v. Cowie-The Glenduror, 1871, 8 Moo. P.C. (N.S.) 29.
[398] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. DONALD JOHNSON and Others,-Appellants; JOHN ALEXANDER BLACK,- Respondent * [Feb. 1, 1872]. the " Two ellens.' The jurisdiction conferred on the High Court of Admiralty by sect. 5 of the Admiralty Court Act, 1861 (24th Viet. o. 10), " over any claim for necessaries supplied to any Ship elsewhere than in the port to which the Ship belongs," does not create a Maritime lien, or render the Ship chargeable for necessaries. A British Colonial Vessel was mortgaged by her Owners to B. The mortgage was duly registered under the Merchant Shipping Act, 1854. In February, 1868, whilst lying in the Port of London, the Appellants, on the order of the Master, did work and furnished supplies to the Ship necessary to put her in a seaworthy condition. In July, 1868, B. executed an instrument'transferring the mortgage to the Respondent. This transfer was without valuable consideration, and was not registered, being made to enable the Respondent to take charge of the Ship for B., the Mortgagee. In the same month the Respondent took possession of the Ship. The Appellants having instituted a suit against the Ship to recover the amount due to them for the work and supplies, the Respondent intervened. At the time of the institution of the suit, the Ship was under the arrest of the Court, at the instance of two of her crew, who had instituted a cause of wages. The Owners of the Ship were domiciled in Nova Scotia. The Ship having been sold, the proceeds were * Present: Sir James William Colvile, Sir Joseph Napier, Bart., the Lord Justice Mellish, and Sir Montague Edward Smith. P.C. vi. 361 12 VIII MOORE N.S., 3S9 JOHNSON V. BLACK-TWO ELLENS (the) [1872] found insufficient to satisfy the claim of the Appellants (the material men) and the Mortgage debt:-Held (affirming the judgment of the Court below), that the Respondent, the Assignee of the Mortgagee, was entitled to have his mortgage debt satisfied before the Appellants were paid the amount of their claim. This suit was instituted for the purpose of recovering a sum of money in respect of repairs done and [399] necessaries supplied by the Appellants to the Two Ellens. The Respondent, who was the Defendant in the Court below, was the Transferee of a mortgage on the Two Ellens. After the pleadings had been concluded an attempt was made by the parties to agree upon a special case for the opinion of the Court. A case was accordingly drawn up, but the parties not being able to finally agree upon such case, it was arranged that the statements in the case should be taken as admissions, and that evidence should be taken on the points in dispute (the case so prepared is set out in full in the report of this case in the Court below: Law Rep. 3 A. and E. 345). The material facts were as follows: - The Two Ellens was a British Colonial Ship belonging to the Port of Digby, in Nova Scotia, of which Vessel no Owner or part Owner was at the time of the institution of the suit domiciled in England or Wales. On the 9th of March, 1867, the registered Owners of the Two Ellens mortgaged her to Troop, a member of the Firm of Black, Brothers, and Co., of Halifax, for securing the repayment of an advance of $5000 and interest made by that Firm to such Owners. The mortgage was duly registered under the Merchant Shipping Act, 1854. About the month of February, 1868, the Appellants, on the order of her Master, who was also part Owner of the Ship, did certain work and furnished supplies to the Two Ellens whilst lying in the Port of London. Evidence was given that this work [400] and supplies were necessary to enable the Ship to go to Sea. By an instrument of transfer, dated the 16th of July, 1868, in the form prescribed by the Merchant Shipping Act, the Mortgagees, Black, Brothers, and Co., transferred the mortgage to the Respondent. This transfer was not registered. In the same month the Respondent took possession of the Two Ellens on behalf of the Mortgagees. On the 12th of February, 1869, the present suit was instituted, under the provisions of the Admiralty Court Act, 1861, by the Appellants against the Ship, her tackle, etc., the Respondent intervening. The Ship was under the arrest of the Court at the...
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