f VOL. XVII.] EXCHEQUER COURT REPORTS. 203.. , .1 BRITISH COLUMBIA ADMIRALTY DISTRICT. 1914 ~..~.~. J'nne 19. In' re THE SHIP "AURORA." Shipping—Liens for . equipment —Necessaries —Seaman's wages.— Priority. A lien for "building, equipping or repairing" a ship under sec. 4 of the Admiralty Court Act, 1861,. or one for necessaries; cannot take priority over a lien for seaman's wages. Munsen y. The Comrade, (1902), 7 Can. Ex. 330, commented on. MOTIQN for payment out of court of a sum recov- ered on astatutory lien for equipping ship. Argued at Vancouver; B. C., before the' Honour able Mr. Justice Martin, Local . Judge of the British Columbia District, May 2, 1914. E. A. Lucas, in support of motion.. Sears, contra. MARTIN, Loc. J. (June 19, 1914) delivered judg ment. This is a motion for the payment but of, Court to Monisen 'et al., who had recovered a judgment on August 19th, 1913, for their statutory lien for equipping the . `. `Aurora" with an engine=for $925 and costs.' On November 12th, in thé same year, Nosier recovered judgment for his wages as a seaman on thé "Aurora ".2 The ship was sold by the marshal inMom-sen's action, and so far, $700, part of the proceeds, have bean paid into Court. t It is contended on behalf 1 See Momsén v. The Aurora (1918) 18 B.C.R. 363, 13 D:L.R: 429. 2 See. (1913) 18 B.C.R. 449, 16'Can: Ex.'81, .17 D.L.R. 13.
204 EXCHEQUER COURT REPORTS. [VOL. XVII. 1914 of Momsen, et al. that because they had a decree of "â xE THE URORA „ . this court in their favour for the sale of the ship Beason for they are entitled to priority over Nosler's claim, Judgment. who did not begin his action till after the decree had been pronounced. The ship after being arrested by Momsen gave bail and was released, and later re-arrested after Nosler's claim had attached, and there are other facts and circumstances on which Nosier relies which it is unnecessary to mention because, even taking the case to be wholly as Momsen et al. contend for, they are not entitled to the order asked for because there is no authority in support of the submission that a statutory lien for "building, equipping or repairing” a ship under sec. 4 of the Admiralty Court Act, 1861, or for necessaries' can take priority over a lien for seamen's wages, in regard to which the authorities are thus summarized in Williams & Bruce's Admiralty Practice :2 "It takes precedence of claims for bottomry "or necessaries supplied to foreign or British "ships and of payments for towage and for Iight "and dock dues charged against the ship, but it " ranks below maritime liens for damage done by "collision, and for salvage rendered subsequently "to the time when the wages were earned. Be-"tween the holder of a bottomry bond and a "claimant for wages earned on the same voyage " on which the bond was given, no distinction is "to be drawn between the portion of such wages " earned before and w ages earned after the giving "of the bond f 7 1 Victoria Machinery Depot Co. v. The Canada and the Triumph (1913), 18 B.C.R. 511, 514, 15 Can. Ex. 136, 17 D.L.R. 27. Cf Roacoe't Adm. Prac. (1903) 64 (f). 2 (1902) 205-6.
VOL. XVII.] EXCHEQUER COURT R.PORTS. ,205 Reference may also be made to The William F. ci e, Safford,' The St. Lawrence, 2 The Andalina3 (a cade ,. ôat very similar to this), The ' A f ricano, 4 Roscoe's Ad. Reasons for wherein Lord Stowell says'" a anag 'eat. Prac.,5 The Neptune,' "seaman (has) a right_ to cling to the plast plank of "his ship in satisfaction, of his wages or part of "them"; The Cella' on the effect of the arrest; and Munsen v. The Comrades (a decision of this court in its New Brunswick District) shows that claimants will be protected according to their priority if they make application before the money has actually been paid out. I note, however, in this last case, on the point of priority between claimants in pari condi- tione and the decree that should be made in such circumstances in the absence of la tes, the decision, • is not in accord with that of the President of the Admiralty Court in The African( s which was not cited to the 'Court, and points out he change in the practice since the decree in the Sat teen case was issued.10 The order, therefore, to be made herein is ,that Nosier is entitled to be paid his wages in full and the balance will be applied in reduction of - Momsen's judgment. With respect to the order that ought to be made as to costs, I refer to Williams & Bruce Ad-, miralty Practice" and Roscoe's Admiralty Practice," 1 (1860) 2 L.T.N.S. 301. 2 (1880) 5 P.D. 2510. 3 (1886) 12 P.D. 1. 4 [ 1894] P. 141. 6 (1903) 76-7. e (1824) 1,Hag. Adm. 227 at 237-8-9. 7 (1888) 13 P.D. 82. 8 (1902) 7 Can. Ex. 330. 9 ( 1894} P. 141. 10 See (1845) 4 Notes of Cases 498, 6 Moo. P. C. 66, Williams & Bruce supra 289 (z). 11 At p. 469-70. 12 319 and the cases there cited.
206 EXCHEQUER COURT REPORTS. [VOL. XVII. 1914 and if the parties do not agree upon the order to be " RE O TH R E A.~~ made in the unusual facts, i.e., the release and re- Reasons for arrest of this case, I am prepared to hear further Jud gment. argument thereupon, if it is desired, though counsel for Momsen, et al. made no submission on this point, nor did either counsel submit any authority. Judgment accordingly. Sears, for Nosler's claim. E. A. Lucas, for Momsen's claim.
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.