LIEN, MARITIME, differs from the foregoing in two particulars. Its existence is altogether irrespective and independent of possession of the chattel which is the subject of it. Its enforcement is not possible, otherwise than by legal process. As may be supposed from the name, it applies to ships, freight, and cargo, and is a charge created sometimes by implication of the law maritime, sometimes by the express contract of the parties themselves.
The occasion of its existence is very various. Seamen have always had a lien on the vessel for their wages, without express stipulation to that effect in the shipping articles. Masters, after being long excluded from this advantage by the common law of England, have been placed on the same footing in this respect with the common sailor by the recent statute, the 17 & 18 Viet. c. 104. The collision of one vessel with another becomes immediately the occasion of lien on the offending ship for the injury sustained by the other. In like manner, salvage, towage, and pilotage, severally originate by intendment of the law a lien on the benefitted vessel for the value of the labour bestowed on it.
All these are instances of maritime lien by implication of the law maritime. There is another for which in view of the law of most foreign nations any express contract is rendered unnecessary by a similar implication of the law maritime of those several countries ; but in the view of our maritime law, consequent on the restraint and re pression exerted on it by the municipal law through the common law courts of England, bottomry, as it is called, has no valid existence except when it is created by the written contract of the parties, no matter in what quarter of the world or what country the claim may have accrued in. Bottomry is nothing more than a maritime lien on the bull and tackling of the ship, usually created for money borrowed, or for necessaries supplied, or repairs done to the vessel, in order to enable her to complete the voyage.
This kind of lien is indefeasible by any change of ownership not effected by sale and transfer under a decree of a court of competent jurisdiction ; in all other cases of transfer the charge travels with the vessel into new hands, and no ignorance of the purchaser on occasion of the sale is a defence to proceedings for its recovery. It necessarily supposes, however, the existence of the vessel. If the ship is lost it perishes with her ; and some liens at least, bottomry for instance, are such Oat they involve no personal claim against the owners, and no debt therefore survives the loss of the vessel. Hence it is that maritime risk is a necessary ingredient of a valid bottomry bond. It is enforce able against the ship only on condition of the vessel surviving the voyage named in the instrument.
Although this charge is indefeasible except by the destruction of the property on which it is laid, yet the maritime law in the equitable spirit requisite to the administration of law in human affairs exacts diligence on the part of the claimant in the enforcement of his rights. The Court of Admiralty is the only tribunal with a jurisdiction capable of enforcing this claim. In the other courts of this country, suits are between persons who, when property is concerned, assert a jus ad rem. The object of admiralty proceedings is a jus in re ; the subject of 'the proceedings is the res itself—the ship and the first step in those proceedings is the arrest of the vessel, to place her corporeally in the possession of the court. The adjudication which closes the proceedings is not personal, but of the thing, adjudging it to be discharged of the alleged claim or condemning it to be sold for the behoof of the claimant.
It cannot but happen sometimes that a plurality of such charges in different bands exist upon the same ship. This occasions the necessity for considering the priority of equities, which are not always, or even usually, in the order of the priority of charge. For if a British vessel before departing on her homeward voyage is obliged to have recourse to bottomry, say in India, and afterwards putting in to St. Helena in a disabled state is obliged again to borrow on bottomry, and at a subsequent period of the same voyage is driven into another port in a condition to require repairs for which the master executes a third bottomry bond, the court, when the subject of the liens 'is not equivalent in value to the sum of the bonds, ranks these claims in the order of their equity, the last effected to be paid first, and the first last, on this presumption, that the later charge preserved the subject of the prior liens, which, although postponed in the order of payment, are really in a preferable condition than if the vessel had been entirely lost. Commerce is also favoured by such a rule. The ship is saved, and the merchandise on board is carried to its destination ; whereas both mlist have perished for want of a lender under any other rule. Cases of a much more complicated character do occur, and the rule is not so plain, nor the consideration requisite to assign them to the proper rule so easy. There is this peculiar to wages, that the lien for them ranks first for payment. On so difficult a question, however, we must refer the reader to some such work as ` Abbott on Shipping,' by Serjeant Shee, for a full consideration of it in application to actual cases.