VOL. VI.] EXCHEQUER COURT. REPORTS. 137 TORONTO ADMIRALTY DISTRICT. 1897 Dec. 11. R. S. WILLIAMS AND THE 'LAKE ERIE AND DETROIT RIVER PLAINTIFFS; RAILWAY COMPANY.. AGAINST THE SHIP "FLORA " AND D. BROWN ... ROSE DFFNDANTS. Maritime Law—Lien—Necessaries---Koine Port-24 Pict. Ch. 10 (Imp.). A claim for money advanced to a foreign ship to pay for repairs, equipment and outfitting is a claim for necessaries, bat where the work is done in the home port of the ship the court has no jurisdiction, the same coming within the exception contained in section 5 of The Admiralty Court Act 1861 [24 Viet. ch. 10 (Imp.)]. Payment by the agent of the owner satisfies and discharges any lien in respect to the original claim of workmen or supply-men to the extent of such payments. THIS was an action by the plaintiffs to recover money advanced to the owner of the ship to pay for repairing, equipping and fitting out the shi r p prior to the placing of the steamer, in the season of 1897, upon a route agreed upon between the plaintiffs and the. owner. No special contract was made for these repairs, or for the equipping, but the owner employed all the workmen by the day and purchased and supplied all material required. The agent of the owner disbursed all the moneys advanced by the plaintifis and instead of taking receipts, procured from the parties what purported to be assignments of their various accounts or claims to one Williams, one of the plaintiffs in the action, and who it is admitted was the agent of the plaintiff railway company who advanced the moneys.
138 EXCHEQUER COURT REPORTS. [VOL. VI. 1897 The owner made no defence, but other claimants WILLIAMS against the ship intervened and disputed the claim of V. the plaintiffs. The facts of the case, the grounds of THE SHIP FLORA. objection by the intervenors and the arguments of Ammons counsel are set out in the reasons for judgment. 'or Judgment. The trial of the case was commenced at St. Thomas, on the 29th day of October, 1897, and concluded at the City of Windsor, on the 12th day of November, 1897. W. K. Cameron for plaintiffs ; C. J. Leggatt for claimants intervening. McDougall, L.J. now (December 1]th, 1897) delivered judgment. This action is brought against the ship and the owner, for an alleged claim on the part of the Lake Erie and Detroit River Railway Company to recover money advanced to the owner to pay for repairing, equipping and fitting out the Flora prior to the placing of the steamer in the season of 1897, upon the route between Port Stanley and Cleveland on Lake Erie. The facts of the case are briefly as follows : The Flora was an American passenger steamer registered at the port of Detroit. The plaintiffs, a railway company, operating a road in Canada and having connections at Port Stanley and Windsor, were desirous of making traffic arrangements for freight and passengers with the owner of the Flora whereby that vessel would ply between Port Stanley and Cleveland in connection with the plaintiffs' railway. The owner of the Flora was without means to properly fit out the vessel. A traffic agreement was formally entered into between the parties and also an. agreement in writing between the owner and the plaintiffs in pursuance of which the plaintiffs were to advance to the owner one thousand dollars (subsequently increased to two thousand dollars) for fitting
VOL. VII EXCHEQUER COURT REPORTS. 139 out the Flora for the season of.1.891. It was stipulated-i997 in this agreement that all the earnings of the Flora WlMs after payment of running expenses were to be handed v. THE SHIP over to the plaintiffs and credited from time to time in. FLORA. repayment of the aforesaid advances. The 52,000 was It... ti►r expended in painting, repairing, furnishing and out- fitting the steamer. No contract was mâde for these repairs or for the equipping, but 'the nwner employed carpenters, painters and other workmen by the day and purchased and supplied all material required. The agent of the owner disbursed all the moneys in making payments to the various individual workmen employed or merchants supplying goods, but instead of taking receipted bills, he procured the parties to sign documents purporting to be assignments of their various accounts or claims to one E. S. Williams, a plaintiff in this action. It is admitted that E. S. Williams was the agent and representative of the railway company, and that such assignments were intended to inure to the benefit of the railway • company. The present action was commenced by the plaintiffs after the arrest of the Flora in a suit for wages by some of the seamen. Tb e Flora was arrested at Port Stanley, Ontario. Several objections were taken to the plaintiffs' 'right to recover : first, that the money was ad- vanced solely on the credit of the owner in the home port and its repayment specially secured by pledging the earnings from freight and passengers. Such advances it is claimed, therefore, were not made on the. credit of the ship itself. The express agreement it is argued supports this contention. A second objection is that the Flora is a foreign ship proceeded against in a British Court of Vice-Ad- miralty and that this claim for money advanced in the home port to pay for such repairs, equipments and.
140 EXCHEQUER COURT REPORTS. [VOL. VI. 1897 outfitting also executed in such home port, is a claim WILLIAMS for necessaries, and no action therefore can be main- v. TR SHIP tamed by the plaintiffs, the same coming within the ex- FLORA. ceptions contained in section 5 of The Admiralty Court ite,.wunis Act 1861 (24 Vict. c. 10 Imp.) That section reads Jud i'iens. as follows : "The High Court of Admiralty shall have jurisdiction over any claim for necessary supplied to any ship elsewhere than in the port to which the ship belongs 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 England or Wales." The .Heinrich Bjôrn (1), determines that a claim for necessaries under section 5 does not constitute a maritime lien, and therefore where the owner of a ship had parted with his interest in the ship after contracting for necessaries, the purchasers took the ship free from any lien for such necessaries. The plaintiffs' action was dismissed with costs. The Mecca (2) decides that an action in rem may be maintained against a foreign ship if found in this oountry in respect . of necessaries supplied to such ship in a foreign port (not being the port to which the ship belongs) whether or not such foreign port be on the high seas. Lindley, L.J. in his judgment, at page 109, says : " If the ship whether English, colonial or foreign is supplied with necessaries in her own port, the probability is that there are persons there to whom credit is given and who can be sued there, but if the ship is supplied in some other place the supplier of the necessaries (if he -does not obtain cash on delivery, which may be impossible) is very likely never to get paid at all." Section 4 of our Admiralty Act of 1891 defines the jurisdiction of the ad- (1) 10 P. D. 44 ; 11 App. Cas. (2) [1595] P.D. at p. 109. 270.
VOL. V T.] EXCHEQUER COURT REPORTS. 141 miralty side of the Exchequer Court and declares that • - 1897 " such jurisdiction, powers and authority shall be WIL AMS exercisable and exercised by the Exchequer. Court THE SHIP throughout Canada and the waters thereof whether FLORA. tidal or non-tidal, or naturally navigable or artificially It~• ~: u r made so," &c,,, &c. 1 udx ^ nant. The term " necessaries," may include money advanced for necessaries. In the case of the Albert Crosby (1) it was held that where A being master and sole owner of a vessel put in a shipwright's dock for repair and the shipwright refused to give up possession till paid his claim, money advanced by B to pay for these repairs can be recovered back in a suit for necessaries. See also the Sophia (2) and also as to a definition of necessaries the case of the Riga (3). I do not attach importance to the so-called assignments held by the plaintiff Williams for the plaintiffs, the railway company. It is admitted that the actual cash was supplied to the owner, and that his agent paid the workmen employed and also paid a number of merchants for a portion of the supplies furnished. Such payments satisfied and discharged any original claims existing in favor of such workmen or merchants supplying goods to the extent of such payments. The assignments to Williams in my opinion do not alter the nature of the transaction between the real plaintiffs, the railway company, and the owner of the Flora. That . arrangement was to advance money to the extent of $2,000 to enable the owner to pay for painting, repairs, furnishing and otherwise fitting out the Flora. The owner executed all work that was required by hiring workmen and purchasing from several merchants all materials needed. The wages were paid in (1) 3 A. & E. 37. (2) 1 W. Rob. 368. (3) 3 A..& E. 516.
142 EXCHEQUER COURT REPORTS. {VOL. VI. 1897 cash by the owner, and so also were accounts for WILLIAMS material as far as the $2000 would permit. Wages v. expended in this way and materials so supplied, come THE SHIP FLORA. within the meaning of the term " necessaries." newtons The $2,000 being advanced by the plaintiffs to the for Judgment,. owner in the port to which the Flora belonged, and being recoverable only as a claim for necessaries, the express terms of sections 5 of 24 Viet. c. 10 (Imp.) prevent the claim being sued for in this court. The plaintiffs' action will be dismissed with costs. Judgment accordingly.
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.