Hypothec upon a Ship for Furnishings and Repairs. - Hypothec for Seamen's Wages. - Upon the Cargo for Freight.
Alexander Sands and other Seamen in Prestonpans, v. Walter Scott, Merchant in Dalkeith
Date: 6 Jan 1708 Case No. No 65.
Seamens wages not a debt affecting the ship or the cargo, but affect the freight.
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Alexander Sands and others, having, obtained decreet before the Admiral, against Walter Scot, as owner of the cargo of a ship navigated by them, and not having paid the freight; he raised suspension and reduction thereof, upon this ground, That the judge committed iniquity in finding him liable for the seamen's wages, because our law knows no hypothecation that seamen have for their wages, on goods aboard belonging to other persons than the skipper and owners of the ship, with whom they contract; and esto, they had such a hypothec, yet the suspender having received and disposed of the goods brought home, unaffected by diligence, the seamen can have no interest therein; otherwise merchants and traders might be ruined by processes at the instance of such seamen for their wages, out of cargoes thirty-nine years back.
Answered for the chargers; by the law of all nations, goods imported in ships upon charter-party, are liable for payment of the freight, and such as are imported without a charter-party (as in this case) are still liable for the seamen's wages; which is founded on material equity, in regard the seamen take the goods aboard, place them where they may be safest, and are liable for any damage arising to them in the ship, without extraordinary stress of weather; they navigate the ship, bring her to the designed port, and deliver out the goods safe. The seamen did indeed suffer the goods to be unloaded before they craved their wages, because they thought they were dealing with an honest man, who would not defraud them; and they could not claim wages till after delivery of the goods. But after all, though the cargo were not affectable for the seamens wages, the suspender qua merchant cannot refuse to pay them, seeing he still owes the freight to the skipper.
The Lords were clear that the seamens wages were no debt of bottomry affecting either the keel of the ship or the cargo; but found the freight liable for the said wages, and therefore repelled the reason of suspension.
