Hypothec upon a Ship for Furnishings and Repairs. - Hypothec for Seamen's Wages. - Upon the Cargo for Freight.
Seamen of the Golden Star v. Provost Miln and Ludquharn
1682.
March Case No. No 63.
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Found, that though mariners and seamen had not a hypothecation upon the ship for their wages of their last voyage, yet they had jus insistendi and retinendi, while in possession of the ship, even against a person who had bought her after the voyage.
Fol. Dic. v. 1. p. 419. Harcarse (Hypothecation.) No 521. p. 145.*** P. Falconer reports the same case:
1682. January 4.—Certain seamen having, for their wages, pursued Robert Miln, who bought the ship from Ludquhairn at a roup, upon this ground, that they being violently put out of the ship, without payment of their wages, and having complained to the Council, Robert Miln, in obedience to the council's order, gave bond, wherein he obliged himself to make payment to the seamen of what the ship should be found liable for. It having been alleged for Robert Miln, That he had bought the ship upon a roup, and the seamen having no hypothec nor real right to the ship for their wages, he was not liable upon his bond to make payment; the Lords found, that the seamen had jus retinendi et insistendi for their wages; and having been violently put out of the ship, they were in the case as if they were in possession; wherefore the Lords decerned Robert Miln, upon his bond foresaid, to make payment to the seamen of their wages.
P. Falconer, No 15. p. 7.*** This case is also reported by Sir P. Home:
1682. March.
Robert Milne having bought a ship at a roup, who having taken possession of her and put out the seamen, and they having complained to the Lords of Council that they were violently put out of the ship without payment of their wages; and the Privy Council having ordained Robert Milne to give bond to pay the seamen, for that the ship should be found liable; which bond was accordingly granted; and the seamen having thereafter pursued Robert Milne for payment of their wages,—Alleged for the defender, that the seamen having no interest or tacit hypothecation on the ship for their wages, he was neither liable upon his bond, nor as having intromitted with the ship, for payment of the seamen. The Lords found, that the seamen had jus retinendi of the ship for their wages, and that, being violently put out, they were in the case as if they had been in full possession of the ship; and therefore decerned the defender to make payment to them of their wages.
