Scottish Court of Session Decisions

In this case Mr W. E. Cooper, as mortgagee of the ship Joan Cunllo of Aberystwith, raised an action against Barr & Shearer, ship builders, Ardrossan, for delivery of the vessel, which had been put into their hands for repairs. These repairs had been partly executed in the defenders' private dock, but before they were complete the vessel had been taken into the public dock, and the pursuer contended that the defenders had thereby lost their lien, which they pleaded as a defence against the action.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 11 th March 1873.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, proof adduced, and whole process—Finds it sufficiently instructed in point of fact: First, That the defenders, Messrs Barr & Shearer, were employed by Thomas Lewis of Walcott, Bath, the owner of the ship or barque ‘Joan Cunllo’ of Aberyst with, and who was in possession and management of the said ship, to execute certain repairs upon the said ship; Second, That under and in virtue of this employment the defenders, Messrs Barr & Shearer, obtained possession of the said ship or barque, and placed her upon their slip at Ardrossan, for the purpose of executing the said repairs, or part thereof: Third, That under the said employment the defenders, Messrs Barr & Shearer, executed extensive repairs upon the said ship, in respect of which a large account is now due to them; Fourth, That the defenders, Messrs Barr & Shearer, never gave up, surrendered, or lost possession of the said ship or barque, but that they still retain possession thereof in security of the payment of their said account for repairs and work executed thereon: Finds, in point of law, that the defenders, Messrs Barr & Shearer, have a valid and effectual lien over the said ship or barque, or a right to retain the same in security of their said account, and

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finds that the pursuer is not entitled to demand or enforce possession of the said ship or barque without paying or securing the said debt due to the defenders; and to the above effect sustains the defenders' pleas, and assoilzies the defenders from the conclusions of the action, and decerns; Finds the defenders entitled to expenses, and remits the account thereof when lodged to the Auditor of Court to tax the same and to report.

Note.—It is quite fixed that a shipwright in a home port who builds or repairs a vessel, and who has the entire possession thereof, has, so long as he retains possession, a lien or right of retention over the ship for the amount of his account for building or repairing the same, unless there is a contract, express or implied, to the contrary—See Bell's Comms. (M'Laren's ed.), ii. 93. A shipwright in this respect is in the same position as any other tradesman to whom a moveable subject is delivered or handed over in order that work may be executed thereon. The tradesman who executes the work may retain the moveable subject until his account for the work is paid, unless he have expressly agreed to give credit, or to give up the article before the term of payment. This is the rule both in England and Scotland, although there are certain places, for example the Thames, where by local usage there is no lien for repairs on ships, the custom and implied contract being to give credit.

It was conceded in argument, and indeed seems quite clear, that the owner of the ship now in question, Mr Lewis, was entitled to employ the defenders to repair her, and to hand her over or deliver her to the defenders for that purpose. No doubt the ship was under mortgage to the present pursuer Mr Cooper. But Mr Cooper allowed the vessel to remain under the full control and management of the owner Mr Lewis, and he cannot object to Mr Lewis having exercised any ordinary and necessary acts of management. It is sufficiently proved that the ship was absolutely in need of an overhaul, and of extensive repairs. Without such she could not continue to trade.. Her classification at Lloyd's had expired, and she could not be reclassed without being surveyed and repaired at the sight of Lloyd's surveyor. Without reclassification she would not have been employed to carry any ordinary cargo. To get her repaired at the sight of Lloyd's surveyor, and get her reclassed, was an ordinary, a prudent, and indeed quite a necessary act of administration or management, and this is just what Mr Lewis did. It seems also sufficiently proved that the repairs actually executed by the defenders have enhanced the value of the vessel to an extent at least equal to, if not greater than, the. amount of the defenders' account, so that the whole of the repairs have been profitably and beneficially in rem versa of the ship itself. It is in these circumstances that the pursuer, the mortgagee, now demands delivery of the vessel from the defenders, the shipwrights, without paying any part of their account.

The shipwrights, the defenders Messrs Barr & Shearer resist the pursuer's demand, on the ground that they have a lien over the ship for the amount of their account, and the question in the present case is, whether the defenders have such lien or not? There is a subordinate question about arrestments, but these arrestments, if valid at all, which the Lord Ordinary strongly doubts, could easily be withdrawn or loosed, and the sole question really in dispute is the defenders' lien. The Lord Ordinary is of opinion that a valid and effectual lien over the ship was created in favour of the defenders, and that it still subsists.

(1) The lien was duly created. The defenders obtained entire and absolute possession of the ship in order to execute the repairs thereon. The ship was taken into the defenders' private shipbuilding yard. She was placed upon the defenders' private slip, where she remained for a considerable time. This was absolutely necessary. The hull of the ship had to be opened up, and her bottom planking, or part thereof, removed, and this could not be done while she remained afloat. There seems no doubt, therefore, that the vessel passed into the legal possession of the shipwrights just as much as if she had been built by them in their yard or upon their slip.

Indeed this was not seriously disputed by the pursuer, whose case was chiefly rested upon the plea that the defenders' lien and possession had been afterwards lost, and it seemed to be conceded that if the ship had always remained upon the defenders' slip, their claim of lien could not have been resisted. Still, with special reference to the alleged loss of possession, it is necessary to keep in view the state of matters even when the ship re mained on the defenders' slip.

The crew had all been discharged and paid off except the master and a man who seems to have acted as a sort of mate. When the ship was on the defenders' slip nobody lived on board of her, both the captain and mate having lodgings in town; but captain and mate, as well as the owner, were frequently going about the ship. At night also, there seems to have been a watchman employed by the captain, called a ship-keeper, whose duty it was to be on board or beside the ship, and to see that nothing was pilfered or taken away. This was necessary, for although the ship was wholly in the defenders' yard and on their private slip, the defenders' premises were quite exposed, unfenced, at least on one side, and themselves protected only by watchmen. So matters stood till the repairs had proceeded so far that the ship could again be floated. Undoubtedly, up to this point the defenders had a valid lien.

(2.) The Lord Ordinary thinks that the defenders never lost the possession so attained by them. No doubt, about the middle of November, and while the defenders' contract was not nearly completed, the ship was taken off the slip and moved into the public dock, in order that the repairs might be there completed. It is said that this was a surrendering or giving up of possession, and that by the very act of launching her from the slip the defenders lost their possession and lost their whole right of lien. The Lord Ordinary does not think so. He thinks the possession once completely attained by the defenders was not lost by merely shifting the vessel's place for the sake of convenience.

The removal of the vessel from the slip was not the act of the owner, or of the pursuer, or of any one representing them. She was removed by the defenders themselves, exclusively by the defenders' workmen, and solely for the defenders' convenience. Their slip was required for another vessel, and it was simply for this reason that the defenders took the ‘Joan Cunllo’ off the slip and put her into the dock. The owner wished her to remain on the slip, as he seems to have thought

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the repairs would get on faster there. Then the ship was lauched, not with the view of delivering her to the owner, or of giving up possession, but simply that the repairs contracted for might go on with the ship afloat. It often happens that some kinds of work can only be done, or can be best done, with the ship afloat, for example, rigging, taking in engines, and so on. The defenders launched the ship, not to hand her over, but to keep her till the repairs were done. Accordingly she remained under the control of the defenders just as before, only, instead of her being on the defenders' private slip, she was moored to the defenders' quay. No doubt on one occasion, for a few hours, she was on the other side of the dock, but this was merely temporary, till a berth next the defenders' yard could be got, and the defenders' men were working on her all the time. Even after this she was actually moored, at least one end of her, to the defenders' pauls, that is to mooring-posts situated within the defenders' ground. It is true also that she had occasionally to be shifted, either to allow vessels to get off or on the defenders' slip, or to give the harbour-master the use of an important loading crane at the corner of the dock. But this was solely for the convenience of the defenders themselves, or of the harbour-master, and could not alter the legal possession of the ship. Plainly the harbour-master, who ordered some of the removals, was in no sense in possession of the ship, and the removals were always effected by the defenders' own workmen. Still farther, no change occurred in the mode of looking after the vessel. Neither master nor mate came to live in her, but just visited her as before. The night watchman watched just as before, till he also was given up or dismissed at last, and by day the repairs went on just as formerly. There is a dispute how much of the repairs were done on the slip and how much in dock, but the preponderance of evidence seems to be that about a half was executed while the vessel was floating. The account does not show exactly.

On the whole, the Lord Ordinary holds without much difficulty that the defenders having once attained possession of the ship did not lose possession merely by themselves floating her for the express purpose of continuing the repairs. This would be a very startling conclusion, and would be both dangerous and unjust to shipbuilding interests. For example, it would prevent shipbuilders from launching vessels, even to get in machinery, until their accounts were paid. The Lord Ordinary cannot think that the moment the ship reached the water at the foot of the defenders' slip she could have been seized either by the pursuer, as mortgagee, or by the owner himself, or by the owner's creditors, and towed off, all dismantled as she was, and incomplete, to defeat the shipbuilders' rights.

In the Lord Ordinary's view nothing turns upon the ship having been replaced on the defenders' slip. If the defenders had once surrendered possession they could not have regained their lien by taking possession of new at their own hand, and without the owner's or master's consent. But if they never lost possession they were quite entitled to make the custody secure by placing the ship in a safe place.

The Lord Ordinary has not the means in the present action of determining the exact amount of the defenders' account. The owner is not a party to the present action, and is being separately sued All that the Lord Ordinary can do is to sustain the defenders' lien, and to this effect assoilzie the defenders from the pursuer's unqualified demand.”

The pursuer reclaimed.

Authorities—Bell's Comm. i, 93, (M'Laren's ed.); Bell's Prin., sec. 1420; Franklin v. Hosier, 4 Barn. and Ald. 314; Abbot, 117, 118; Hartley, 1 Starkie, 408.

At advising—