Hamilton v Harland and Wolff; The Acacia

• Jurisdiction: Ireland
• Judgment Date: 27 February 1880
• Date: 27 February 1880
• Court: Court of Admiralty (Ireland)

High Court of Admiralty, Ireland

Townsend, J.

The Acacia

The Chieftain Br. & L., p. 212

Conditional bail Offer of by mortgagee refused

226 MARITIME LAW CASES. Adm.] The Talca - The Acacia. [Ir. - Adm. HIGH COURT OF ADMIRALTY, IRELAND. Reported by F. Blackburne Henn, Esq.. Barrister-at-Law. Dec. 2 and 3, 1879. (Before Townsend, J.) The Acacia. Conditional bail - Offer of by mortgages refused. A mortgages, although entitled to intervene in a cause in rem for equipment and repair, it not entitled to claim a release of the vessel upon giving bail conditional to pay the claim of the material men, in the event of its being heel to have priority over the mortgage. THIS was an application by motion on the part of the Messrs. Hamilton, of Port Glasgow, as registered mortgagees of the steamship Acacia, for liberty to intervene in a suit for equipment and repairs instituted by the Messrs. Harland and Wolff, of Belfast, and defend for the purpose of raising the question of the priority of their own MARITIME LAW CASES. 227 Ir. - Adm.] The Acacia. [Ir. - Adm. mortgage over the plaintiffs' claim, and for liberty to give bail for the release of the said steamship as regards the claim of the Messers. Harland and Wolff, which bail should be answerable for the payment of the claim of the Messrs. Harland and Wolff against the said vessel, in case the same should be found to take priority of the said mortgage. The Queen's Advocate (Dr. Boyd, Q.C.) in support of the application, relied on the 70th and 71 st sections of the Merchant Shipping Act as constituting the Messrs. Hamilton practically the owners of the vessel and investing them with an absolute right of sale. The mortgagees are interested in the vessel to the extent of 5800l., and, even assuming the right of the Messrs. Harland and Wolff to arrest the vessel, yet no claim for necessaries as against bis client could be set up, unless at the tune of the arrest a possessory lien could be established. He would give bail for the amount of the Messrs. Harland and Wolff's claim, but without prejudice to the priorities. He refered to The Scio, L. Rep. 1 A. & E. 356; Mar. Law Cas. O.S. 527: The Western Ocean. L. Rep. 3 A. & E. 38; The Two Ellens, L. Rep. 3 A. & E. 345; 1 Asp. Mar. Law Cas. 40, 208. Corrigan, LL.D., for the Messrs. Harland and Wolff. - Plaintiffs, in two causes of equipment and repair claiming 14001,, resist the application on the ground that there was already a defendant in both causes, the official assignees of the owners; that there might be other suits, that no consent of any defendant or plaintiff was shown, and that the court has not been informed whether there is any other detainer on the vessel, and the court mast be satisfied that there is not before the motion can be granted. This is an attempt by motion to change the practice of the court with regard to ascertaining priorities between the Messrs. Harland and Wolff and the Messrs. Hamilton. There is no necessity for this motion, as the machinery of the court, of which we have correctly availed ourselves, is the proper method of ascertaining priorities. The question of a possessory lien, and therefore a conclucive question affecting priority, may arise in the Messrs. Harland and Wolff's cause. Again bail has been offered in one cause only, and there has been no appraisemens of the ship, and her value is not known; and we are interested in any surplus if the question of priority be decided against us. Martin Burke, for the offcicial assignees of James S. Campbell, sole owner, a bankrupt, objected to the motion. The Queen's Advocate in reply. - We cannot intervene now as a matter of coarse, but only by permission of the court. I stand on our strict legal rights, conferred by the 70th and 71st sections of the Merchant Shipping Act. The form of bail bond usually entered into will not nit here; the bond must be framed to suit this particular case. Dec. 3. - Townsend, J. - The application made to me yesterday is a novel one. In No. 732 the steamship Acacia has been arrested by warrant at the suit of the Messrs. Harland and Wolff in a suit for equipment and repairs; and subsequently in No. 738 a citation in rem has been issued against the same defendant vessel at the suit of the same plaintiffs, and a suit of mortgage has been instituted by a second citation in rem in No. 739 by the Messrs. Hamilton, who state that they are registered mortgagees for the sum of 5800l. The owner of the vessel has been declared a bankrupt, and his official assignees have appeared to defend in the two suits instituted by the Messrs. Harland and Wolff. This motion certainly cannot decide the priority of the claim of the Messrs. Harland and Wolff or that of the Messrs. Hamilton, who undertake to sell the vessel; and if at the hearing it be found that the Messrs. Harland and Wolff have priority, it will discharge their claim, and they are willing that the bail to be given by them should secure the probable amount of the surplus after payment of the mortgage debt and the claims of the Messrs. Harland and Wolff. It is contended for the Messrs. Hamilton that they are not only entitled to liberty to intervene, but that, under the 70th and 7Ist sections of the Merchant Shipping Act, they are in foot owners of the vessel, and it is also alleged that the sale would be more expeditious if conducted by the Messrs. Hamilton, and would produce larger funds than if carried out by the officers of the court. This application is resisted as being contrary to the practice of the court, and likely to render the claim of the Messrs. Harland and Wolff nugatory as against the surplus, and it is further contended that the sale should be carried out by the court on bail given for the full value of the vessel, and the motion is further resisted by the official assignees of the bankrupt owner. The Messrs Hamilton are clearly entitled to intervene, but perhaps at the present stage of the proceedings they could not do BO without the permission of the court. The question of giving bail as proposed is a new one. I have looked into the authorities which have been cited at the bar, and find that The Scio only decided the priorities of mortgages to material men who are not in possession, while in The Western Ocean no question of such bail as asked for here was raised. In The Two Ellens the bail given was unconditional, and for the full value of the ship. Had such bail been offered here credit question. It has been contended that were I to grant this motion, the ordinary form of bail bond would not answer, and it struck me that it would not. [His Lordship referred to the ordinary form of bail bond.] Although the Messrs. Hamilton offer to, give bail in any form, it has not been shown to me what that form ought to be, and no authority has been cited to show me that I am at liberty to depart from the ordinary practice of the court. Nor has any authority been shown to me why I should accept conditional bail for the defendant ship. The 70th section of the Merchant Shipping Act does not appear to me to confer any special rights on the Messrs. Hamilton; while, on the authority of The Chieftain (Br. & L., p. 212), I think that if the owner were before the court he would have to give the ordinary bail, and I do not consider that the Messrs. Hamilton are in a better position than the owner, but are merely creditors, who, if they succeed in their demands, must be paid prior to the Messrs. Harland and Wolff. No doubt as between the several parties the offer of the Messrs. Hamilton may be a fair one, but the case is different...