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![handle is hein.slavery/ssactsengr0519 and id is 1 raw text is: THE VICTOR
to the bond-[71]-holders. Da Costa's claim is in the nature of wages, and therefore
has precedence over a bottomry bond. The equity of the case seems to demand
a pro rata payment of all the claims. Edmondson is not disentitled to sue, because
he took the bill in payment, the bill being afterwards dishonoured; N.R. Gosfabrick
(Swab. 344).
Lushington in relply.
Right Hon. Dr. Lushington: A bond is entitled to precedence over all claims
except wages, or a subsequent bond or salvage claim. Seamen's wages, however,
come first of all, according to the established practice of the Court, and I am of
opinion that Da Costa's claim is in the nature of wages, and must therefore be the
first paid. If he had not advanced the money, the seamen would have no doubt
arrested the ship, and enforced their right to priority of payment. I shall therefore
direct Da Costa's claim to be satisfied first, and next the bondholders. There then
remain four actions of necessaries, the plaintiffs in one of which have already obtained
a decree of the Court. The Court encourages suitors in actively enforcing their
remedy, and gives preference to the party who is first in possession of a decree of the
Court. Messrs. Cearns and Brown are therefore entitled to be paid before the other
plaintiffs for necessaries, who, being in pari conditione, must share what is left of the
proceeds rateably. The costs in each action will be paid with the principal sums
in the order I have named.
Rothery, proctor for the bondholders.
Toller for the other plaintiffs.
[72] THE VICTOR. May 4, 1860.-Collision-Liability of cargo-Power of
execution-Costs and damages.-The cargo laden on board a vessel at the
time of collision is in no case liable to be sued for the damage. Cargo arrested
for freight will be released upon payment of the freight into Court with an
affidavit of value. The Admiralty Court has no power of levying execution
upon a defendant's goods and chattels to satisfy a judgment. Where cargo is
improperly detained under arrest, the owner is entitled to costs and damages.
A cause of collision was entered against a foreign ship, freight and cargo. The
ship was arrested, and the cargo was arrested for the freight. The ship was
released upon an appearance and bail being given for the owners of the ship.
The Court pronounced for the damage. An appearance was thereupon entered
for the freight and the freight paid into Court, and the surrogate was prayed to
release the cargo. The value of ship and freight being insufficient to satisfy
the damage, the plaintiff prayed the surrogate not to release the cargo. The
surrogate referred the question to the Judge: Held, that the cargo, even if the
property of the owners of the ship, was not liable for the damage, and must be
released with costs and damages for the improper detention of it.
[S. C. 28 L. J. (Adm.) 110; 2 L. T. 331. Referred to, The Volant, 1864, Br. &
Lush. 321 ; The Roecliff, 1869, 17 W. R. 745 ; The Princess Royal, 1870, L. R.
3 Ad. & Ecc. 41; The Mullingar, 1872, 26 L. T. 326; The Dictator, [1892].
P. 304.]
This was a cause of collision entered by Rothery in £8000, on behalf of the owners
of the Dutch ship Vrede, and her cargo, against the Swedish ship Victor, her
cargo and freight. The warrant was issued against the ship and freight only ; the
ship was arrested, and the cargo was arrested for the freight. On the 31st December
1859, an appearance was entered by Deacon for Samuel Gadenius & Company, as
the owners of the ship. On the 8th of March 1860, the Court pronounced for the
damage of the Vrede. The cross-action was heard at the same time and dis-
missed; it had been entered on behalf of Samuel Gadenius & Company, as the
owners of the Victor and her cargo. On the 2nd of May, Deacon entered an appear-
ance to the action of the Vrede for Messrs. Frederick Huth & Company, of London,
the holders of the bills of lading of the cargo lately laden on board the Victor, for
a valuable consideration, and brought in an affidavit with the bills of lading annexed,
to the effect that Messrs. Huth & Company were the holders of the bills of lading for
valuable consideration at the time of the collision, and still held the same; and
Deacon, alleging the total amount of the freight due to be £585, 2s. 2d., and that
lie had paid that sum to the account of the registrar at the Bank of England, prayed
the cargo to be released from the arrest for freight. Rothery objected and prayed
LUSE. 71.](ViewImageLocal?handle=hein.slavery/ssactsengr0519&div=1&collection=&method=preview&ext=.png&size=3)