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Cite as: [1789] UKHL 3_Paton_148

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SCOTTISH_HoL_JURY_COURT

Page: 148↓

(1789) 3 Paton 148

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

[M. 6269.]

No. 35

Messrs. John Wood & Company, Shipbuilders in Port Glasgow, Messrs. Brown & Company of the Saltcoats Rope Work, & Others, Appellants

v.

Archibald Hamilton, Trustee on the Sequestrated estate of James & Patrick Hunter, Merchants, Port Glasgow, Respondent

House of Lords, 15th June 1789.

Subject_Bottomry — Hypothec. —

Hypothec does not attach for repairs executed while the ship is in a home port.

Nov. 24, 1784.

Of this date, James and Patrick Hunter, merchants in Port Glasgow, were sequestrated, and, under the bankrupt act, the respondent was appointed their trustee.

Among their effects was a ship of the name of Rebecca, then lying in harbour at Port Glasgow, upon which the appellants had sometime previously executed considerable repairs, and some of the appellants were actually repairing the vessel at the date of the sequestration. The question was, Whether they had a preferable right or hypothec or lien over the ship for the amount of the repairs?

Jan. 24, 1787.

The Lord Ordinary sustained their claim of hypothec, but, on a reclaiming petition to the Court, it was contended, 1st. That there was no hypothec, when the furnishings are made on contract with the owner; 2d. That the tacit hypothec, or bottomry right, extends only to repairs executed in foreign port, and only for the last voyage, unless constituted by bill or bond of bottomry; 3d. That if any hypothec lay here, it could only be for the last furnishings made to the Rebecca at the date of the sequestration, and not for old repairs.

Dec. 12, 1787.

July 29, 1788.

The Court ordered the opinion of English counsel to ascertain the practice of England in such cases; upon considering which; they found “That the respondents (appellants) have no hypothec, or right of bottomry on the ship in question.” By a subsequent interlocutor, on reclaiming petition, the Court found, “that the respondents (appellants) have no hypothec or right of bottomry on the ship in question.” Another reclaiming petition was presented, contending for the appellants:—That there was no distinction

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between home and foreign repairs, and, consequently, it made no difference, whether the master or owner contracted for the furnishing, or whether these were furnished in the home port where the owner resided. The respondent insisted that there was a solid distinction between home and foreign repairs, the privilege of hypothec attaching only in the latter case; and that, by the law of England, a tradseman who repairs or furnishes materials for a ship, the owner of which resides in England, does not acquire any lien upon the ship, but is a mere personal creditor: The same law must apply here. It was replied, that this question must be tried by the principles of the law of Scotland, as the lex loci contractus; and these principles being clear, according to the decisions in favour of the appellants, there was no occasion to resort to that law; and therefore their hypothec attached.

Feb. 24, 1789.

The Court adhered; but remitted “to the Lord Ordinary to hear parties on the right of retention claimed by the petitioners John Wood & Co.”

Against these interlocutors, in so far as they found that the appellants have no hypothec or right of bottomry on the ship in question, they brought the present appeal.

Pleaded for the Appellants.—1. The right of hypothec in favour of the repairers and furnishers of a ship, is founded on the Roman law, recognized and observed in most nations of Europe, and is now, and has been the law of Scotland from an early period. And in determining such questions in Scotland, the practice has always been, to allow of such hypothec for repairs, without making any distinction, whether the same were made in a home or a foreign port; 2d. But, separately, whatever be the law of England, it is clear that the present question must be determined by the law of Scotland, as that law stands recognized, acted upon, and confirmed by the universal understanding of the kingdom; and they further maintain that the distinction now set up between repairs and furnishings in a foreign and home port, has never been until now heard of in that law.

Pleaded for the Respondent.—1st. The right of hypothec upon a ship for repairs, to the person repairing or furnishing the vessel at a home port in Scotland, on the order of the owners residing at that port, is not recognized by any writer on the law of Scotland. It is only when the vessel is in a foreign port that such a claim arises, and where the master of the vessel may hypothecate the vessel for repairs; but as to

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work at home, it is held as executed upon the personal credit of the owner alone, and not upon the security of the ship. 2d. What has been found to be expedient and advantageous to the commercial law of England, cannot be hurtful to the commerce of Scotland; and as the commercial law of the two countries acknowledges the same origin, the rules of the one must apply to the other.

After hearing counsel, it was

Ordered and adjudged that the interlocutors be affirmed.

Counsel: For Appellants, T. Erskine, W. Grant.
For Respondent, Ilay Campbell, Alex. Wight.

1789