Page:Halsbury Laws of England v1 1907.pdf/283

 — Part

I.

Introduction.

61

always an alternative method of proceeding, by arresting any property belonging to him in tidal waters, and then citing the debtor and all parties interested in the goods attached to appear at the suit of the plaintiff

^t^ct. 2.

Exercise of Jurisdic-

(/•).

89. These methods of procedure became obsolete (s), but the Admiralty Com-t succeeded in establishing the right to arrest prol)erty the subject-matter of a dispute, and to enforce its judgments against the property so arrested, on tlie theory that a pre-existing maritime lien to the extent of the claim attached to the property Such an action from the moment of the creation of such claim. became knoyai as an action in rem (t). It is difficult to determine the exact source from which the present law^ as to maritime liens is derived {11), but w^hatever may have been the origin and process of development of a maritime lien for damage and the same is equally true for all claims within the inherent jurisdiction of the Court of Admiralty, such as damage, salvage, bottomry, and wages there and is no doubt that the doctrine of such a lien is now established the right to enforce it differs from the ancient right of arrest to compel appearance and security in this, that it is confined to the property by which the damage was caused or in relation to which the claim arose, and may be enforced against that property in the A maritime lien has been hands of an innocent purchaser {a). defined as a privileged claim upon a thing in respect of service done and is carried into effect by special legal to it or injury caused by it

Origin of actions in

—

—





process

{b).

90. The inherent jurisdiction possessed by the Court of Admiralty was not only exercised by proceedings- ?n rem brought to enforce the maritime liens attaching on the res in each case but, where the ship was lost or for some other reason could not be arrested, a plaintiff' having a claim cognizable by the Court, other than a claim

{r) See Gierke's Praxis Curiae Admiralitatis, 3rd ed. (1722), tit. 24, If after the seizure of the goods the defendant appeared, the shijD or goods were delivered over to him and the case proceeded " "ut in actione instituta contra personam debitoris " tit. 37). See The Dictator, [1892] P. 304, 311.

The

last instance of a personal arrest is said to have been in 1780 {The Swa. 1, 3). See also The Dictator, supra, at p. 313; Johnson v. Shippen (1703), 2 Ld. Eaym. 982. (s)

Clara, {t)

As to actions in rem, see title AcTioiS', p. 47, One opinion is that the source is to be found

ante.

in the ancient law of deodand, the ship being supposed to be itself responsible to the amount of the claim against it (see Holmes, Common Law, ed. 18cS2, pp. 25, 27) but the more tenable theory would seem to be that the present law of maritime lien has sprung from the Admiralty practice of arrest to compel appearance and security, above referred to. See Marsden on Collisions, 5th ed. p. 72, and Select Pleas in the Court of Admiralty, edited for the Selden Society by the same author, Yol. I. p. Ixxii. As to maritime liens generally, see title Shipping and (?/)



Navigation. (a) The Ripon City, [1897] P. 226, at pp. 241, 242 and see The Bold Buccleuqh (1851), 7 Moo. P. C. C. 267, where it was held by the Judicial Committee of the Privy Council that in cases of collision a maritime lien for damage arises and may be enforced against the vessel which was in fault, and such lien travels with the vessel into whosesoever possession she may come, and when carried into effect by a proceeding in rem relates back to the period when it first attaches.

See also this decision approved, Carrie v. M'lvnigld, [1897] A. C. 97, at p. 106. [h] See Abbott, Law of Merchant Ships and Seamen, 14th ed., p. 1012.

Proceedings ^'^^


 * personam.