The Queen of The South

[1968] 1 All ER 1163

(Judgment by: Brandon J.)

Corps and Another (Trading As Corps Brothers)
v. Owners of Paddle Steamer Queen of The South Port of London Authority (Interveners)

Court:
Probate, Divorce and Admiralty Division, High Court of Justice

Judge:
Brandon J.

Hearing date: 3, 16, 20, 23 October 1967
Judgment date: 17 November 1967

High Court of Justice, United Kingdom


Judgment by:
Brandon J.

The court has before it two motions in an action in rem brought by watermen against the paddle steamer Queen of the South to recover the costs of services rendered by them to that ship. The first motion is by the plaintiffs for judgment in default of appearance and for an order for the appraisement and sale of the ship. The second motion is by the Port of London Authority, who have intervened in the action, asking for various orders the nature of which I shall describe later. Two main questions arise on these motions: first, whether the plaintiffs' claim is of such a kind as to entitle them to bring an action in rem in respect of it; second, if so, what, if any, order should be made to avoid any difficulty which might otherwise arise from the fact that the interveners claim a paramount right to detain and sell the vessel under their statutory powers in order to recover rates owing to them.

The facts and circumstances giving rise to these motions are these. The plaintiffs, Alan James Corps and Rodney Francis Corps, trading as Corps Brothers, are a firm carrying on the business of motor boat proprietors, licensed lightermen and watermen. The work which they do in this capacity includes among other things ship mooring and boat attendance. Their office is at 21, Clement's Road, Bermondsey, and they do their work mainly on the River Thames. The Queen of the South is a British paddle steamer registered at the Port of Glasgow. She is owned by Coastal Steam Packet Co Ltd who were employing her during the summer of 1967 as a passenger vessel for day trips from London. For this purpose they appointed as managers A E Martin & Co Ltd of 52-53, Crutched Friars, in the city of London. In June, 1967, an oral contract was made between Mr Eldridge, an employee of A E Martin & Co Ltd and the plaintiffs, by which it was agreed that the plaintiffs should whenever necessary moor and unmoor the ship at her berth in the London river and convey her crew between the ship and the shore. It was understood that the plaintiffs would provide for these purposes the necessary motor boats and men. In pursuance of that agreement, on various dates between 17 June and 24 July 1967, the plaintiffs rendered services to the ship. These consisted of mooring and unmooring the ship while she was at Harrison's wharf, Purfleet; mooring and unmooring the ship and conveying ship's crew, catering staff and repairers' men while the ship was at Tower buoys; and mooring and unmooring the ship and conveying her crew while she was at Erith buoys. The total sum which became due to the plaintiffs from the defendants in respect of those services was £290 3s.

Meanwhile the Queen of the South incurred various port rates payable to the interveners. These rates up to the end of July, 1967, consisted of the following:-for the period 10 June to 15 July mooring charges £2 7s 6d; for the period 24 June to 12 July pier tolls £275; and for the period 27 June to 10 July river tonnage dues, £40 4s, making a total of £317 11s 6d An account dated 26 July 1967, relating to the first and second of these three items and also to water supplied to the ship, was sent by the interveners to the ship's managers, and should, in the ordinary course of post, have been received by them about 27 July 1967. On 31 July 1967, the plaintiffs issued the writ in this action and on the same day served the writ and arrested the ship at Erith buoys. Since that arrest the ship has continued to incur mooring charges at the rate of £10 0s 8d per week. On 25 September 1967, the plaintiffs filed notice of motion, asking for judgment in default on their claim with costs, and for an order for the appraisement and sale of the ship. On 28 September 1967, the interveners purported to seize the ship under their statutory powers in order to enforce payment of the rates due to them. They gave effect to their intention by placing in a prominent position on the starboard side of the wheelhouse a notice of seizure reading as follows:


"To the master and owners of the Paddle Steamer Queen of the South and all whom it may concern. Take notice that I, Walter Howard Thorburn, an officer of the Port of London Authority duly authorised in that behalf by virtue of the power contained in the Port of London (Consolidation) Act, 1920, s. 75, have this day seized the Paddle Steamer Queen of the South and the tackle and furniture aboard now lying at Erith charges of £289 5s. 1d. due and demanded remaining unpaid and further take notice that if the said Paddle Steamer Queen of the South and the tackle and furniture on board be not redeemed by the payment to the Port of London Authority of the said sum of £289 5s. 1d. within five days of this day of seizure, I, Walter Howard Thorburn may sell the same and make of the proceeds of that sale a sum in reduction of the amount due in respect of the said rate."

That notice was signed by Mr Thorburn on behalf of the interveners.

On 3 October 1967, the plaintiffs' motion came on for hearing before me. It then appeared that the plaintiffs had not filed a statement of claim as required by RSC, Ord 75, r 21(3). Since the question whether there was jurisdiction to entertain the plaintiffs' claim in rem was plainly going to arise, I thought that it was important that a statement of claim setting out clearly the facts relied on should be filed in accordance with this rule. I also thought that further evidence in support of the claim might well be needed. For these reasons, as well as because I was told of the actual or impending intervention by the Port of London Authority, I ordered that the motion should be adjourned. The Port of London Authority in fact appeared as interveners on the same day, 3 October 1967, after obtaining leave to do so under RSC, Ord 75, r 17. On 11 October 1967, the plaintiffs filed a statement of claim, and on the same day the interveners filed notice of motion asking for the dismissal of the plaintiffs' claim for want of jurisdiction, or alternatively for various other orders designed to protect their position in respect of the recovery of their charges. The plaintiffs' adjourned motion and the interveners' motion were heard by me together on 16 October 20 and 23. The plaintiffs' motion was supported by an affidavit of Mr Peters sworn on 25 September 1967, proving service of the writ, a certificate of non-appearance dated 13 October 1967, and an affidavit of Mr Alan James Corps, one of the plaintiffs, sworn on 10 October 1967, verifying the facts on which the claim was founded. Subsequently Mr Corps' affidavit evidence was at my suggestion amplified by oral evidence from him, so that the court could have before it the precise details of the work done by the plaintiffs. The interveners' motion was supported by three affidavits, one of Mr Le Mesurier sworn on 3 October 1967, one of Mr Thorburn on 13 October 1967, and one of Mr White sworn on 23 October 1967.

I shall deal first with the question of jurisdiction. The plaintiffs' claim has been put forward in the indorsement of the writ and in the statement of claim as a claim for necessaries. I venture to think that the legal advisers of the plaintiffs, in describing and pleading the claim on this basis, did not have clearly present to their minds the terms of the Administration of Justice Act, 1956, on which the jurisdiction of the court to entertain actions in rem now depends, but were rather still living in the era prior to the coming into force of that Act, when the jurisdiction concerned depended on earlier provisions in the Supreme Court of Judicature (Consolidation) Act, 1925.

The history of the matter so far as jurisdiction is concerned is this. By s 6 of the Admiralty Court Act, 1840, the High Court of Admiralty was given jurisdiction over claims for necessaries supplied to foreign ships, whether within the body of a county or on the high seas. By s 5 of the Admiralty Court Act, 1861, the same court was given further jurisdiction over claims for necessaries supplied to any ship elsewhere than in the port to which she belonged, unless at the time of institution of the cause any owner or part-owner was domiciled in England or Wales. By s 33 of the Act of 1861, the jurisdiction of the court could be exercised either in rem or in personam. By the Supreme Court of Judicature Acts, 1873 and 1875, all the jurisdiction of the High Court of Admiralty, including its jurisdiction over claims for necessaries under the Admiralty Court Acts, 1840 and 1861, was transferred to the High Court, and its exercise assigned to the Probate, Divorce and Admiralty Division. Section 6 of the Admiralty Court Act, 1840, and s 5 of the Admiralty Court Act, 1861, were repealed by the Supreme Court of Judicature (Consolidation) Act, 1925, and their combined effect, so far as jurisdiction over claims for necessaries is concerned, was re-enacted in s 22 (a) (vii) of that Act. The power to exercise the jurisdiction either in rem or in personam was continued by s 33(2) of the Act of 1925. In the result, the Act of 1925 preserved but did not extend the previous Admiralty jurisdiction in respect of necessaries. Section 22 and s 33 of the Supreme Court of Judicature (Consolidation) Act, 1925, were repealed by the Administration of Justice Act, 1956, and the Admiralty jurisdiction of the High Court was re-defined, with various extensions, by s 1 and s 3 of that Act. Section 1 of the Act of 1956, so far as material, provides:


"(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions of claims ... (h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship; ... (m) any claim in respect of goods or materials supplied to a ship for her operation or maintenance; (n) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues; ... (p) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship; ... "

Then, after listing other specific claims, the subsection ends with the words


"together with any other jurisdiction which either was vested in the High Court of Admiralty immediately before the date of commencement of the Supreme Court of Judicature Act, 1873 (that is to say, Nov. 1, 1875) or is conferred by or under an Act which came into operation on or after that date on the High Court as being a court with Admiralty jurisdiction ... "

Section 3(4) of the Act of 1956, as amended by the County Courts Act, 1959, s 204 and Sch 3, provides:


"In the case of any such claim as is mentioned in paras. (d) to (r) of sub-s. (1) of s. 1 of this Act, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, the Admiralty jurisdiction of the High Court ... may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in rem against-(a) that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; ... "

Section 8(1) of the Act of 1956, which, with s 1 to s 7 forms Part I of the Act, provides:


"In this Part of this Act, unless the context otherwise requires,-'ship' includes any description of vessel used in navigation; ... "

It will be observed that claims for necessaries do not figure at all, as such, among the claims specified in the lettered paragraphs of s 1(1) of the Act of 1956. It appears, however, although I have not heard any argument on the subject and, therefore, express no concluded opinion on it, that the effect of the sweeping-up provisions at the end of s 1(1) is to preserve to the court, independently of, and concurrently with, any jurisdiction specifically conferred by para (a) to para (s), the same jurisdiction over claims for, inter alia, necessaries, as was formerly conferred by the Acts of 1840, 1861, 1873 and 1875, and 1925.

Assuming this to be correct, the question which arises for decision in the present case can conveniently be divided into two parts. First, would the court have had jurisdiction over the plaintiffs' claim under the Act of 1925? If so, then it appears that it has the same jurisdiction, by virtue of the sweeping-up provisions of s 1(1) under the Act of 1956. Second, has the court such jurisdiction by virtue of any of the lettered paragraphs (a) to (s) of s 1(1) of the Act of 1956?

So far as the first part of the question is concerned, counsel for the plaintiffs did not contend that the court would have had jurisdiction under the Act of 1925, and, therefore, had it by virtue of the sweeping-up provisions of s 1(1), under the Act of 1956. He did not say in terms why he did not so contend. I take it, however, that at least one reason was because, although there was no direct evidence that the company which owned the Queen of the South was an English company, he knew this in fact to be the case, and knew, therefore, that the proviso relating to English domicil in s 22(1) (vii) of the Act of 1925 would, on any view of the sweeping-up provisions, prevent the court having jurisdiction. So far as the second part of the question is concerned, counsel for the plaintiffs contended that there was jurisdiction under one or more of paras (h), (m) and (p) of s 1(1) of the Act of 1956. This was disputed by counsel for the interveners. I will deal with para (h) first. Counsel for the plaintiffs argued that the agreement between the plaintiffs and the ship's managers, under which the services claimed for were rendered, was "an agreement relating to the use or hire of a ship" within the meaning of the paragraph. He said that the plaintiffs' services were rendered by the use of their motor boats suitably manned for the work to be done; that, by s 8(1) of the Act of 1956, the expression "ship" included a motor boat; and that, by s 1 of the Interpretation Act, 1889, the singular included the plural. Therefore, he said, the agreement came within the paragraph. Counsel for the interveners, in disputing these arguments, sought to draw a distinction between an agreement relating to the use of a ship, and an agreement relating to the rendering of services in the course of which a ship was used. He said that the former was within para (h), but the latter was not. He further said that the agreement in the present case was in the second category. I did not think that his argument based on this distinction was convincing. I can see that there might be an agreement for services, in the course of which there was only some incidental and minor use of a ship, which it might be inappropriate to describe as an agreement relating to the use of a ship. In the present case, however, it seems to me clear, on the written and oral evidence before me, that the whole of the services rendered by the plaintiffs were based on the use of motor boats owned and operated by them. It is true that in some cases the men engaged in mooring and unmooring did their work on a quay or on a buoy; but they were landed on the quay or on the buoy from a motor boat and taken off again by the same means. In these circumstances, I have come to the conclusion that the argument of counsel for the plaintiffs that the claim comes within para (h) is well founded, and I hold that the court has jurisdiction to entertain it on that ground.

That conclusion makes it unnecessary to decide whether the claim comes also within para (m) or para (p). As at present advised, I cannot see how it could come within para (p). Further, I see considerable difficulty about holding that it comes within para (m). On this point, counsel for the interveners argued with force that para (m) related to contracts of sale or hire, under which the property in, or possession of, the goods or materials supplied passed to the shipowners or their servants, and did not extend to contracts for work and labour under which neither property nor possession was transferred. Against that, counsel for the plaintiffs argued that the paragraph covered also contracts for work and labour in connexion with which goods (which for this purpose he said included motor boats) were provided or made available, even though neither the property in nor the possession of such goods was transferred. I was not impressed with the latter argument, anyhow in relation to the facts of this case. Since it is not necessary, however, to decide the point, I do not propose to express a concluded opinion on it.

I turn now to the second question raised by these motions. That is, what order, if any, should be made to meet the difficulties arising from the actual or potential assertion by the interveners of their statutory rights to detain or sell the vessel in order to enforce payment of rates. The rights concerned are given by the port of London (Consolidation) Act, 1920. Section 75 provides:


"In case all or any part of any rate in respect of any vessel is not paid on demand to the officer of the Port Authority authorised by them to demand and receive the same then and in every such case the Port Authority may recover such rate or part thereof from the owner or master of such vessel summarily or in any court of competent jurisdiction or the officer to whom such rate or part thereof ought to have been paid taking such assistance as he thinks necessary may at any time or at any place within the limits of the Port of London, seize and detain such vessel (whether laden or empty) and the tackle and furniture on board thereof until payment of such rate or part thereof together with reasonable charges for such seizure and detention and if such vessel tackle and furniture shall not be redeemed within five days after such seizure such officer may sell the same rendering to the owner thereof on demand the surplus if any of the proceeds of such sale after deducting therefrom the amount of such rate or part thereof so payable as aforesaid and reimbursing himself the expense incurred by him under the provisions of this section. Provided always that no such officer shall be answerable for any loss, injury or damage which may happen to such distress while in his custody unless the same shall happen through his wilful or gross negligent act or default."

Section 84 provides:


"Before selling (except in case of emergency) any vessel or goods for the purpose of recovery of rates and expenses or either of them under the powers contained in the foregoing provisions of this Act, the Port Authority shall give to the owner of any vessel or to the owner or consignee of any goods forty-eight hours' notice of their intention to sell the same by posting a prepaid letter addressed to such owner or consignee at the place (if any) in the United Kingdom where he carries on business or at his last known place of abode in the United Kingdom or if such owner or consignee or his last place of business or abode should not be known to the Port Authority then before selling any vessel or goods aforesaid a like notice shall be exhibited by the Port Authority for forty-eight hours at the head office of the Port Authority."

So far the interveners have only taken steps to exercise their right of detention. They have done this by placing on the ship on 28 September 1967, the notice of seizure to which I referred earlier.

It has been argued for the plaintiffs, first, that the interveners had no right to seize the ship at all while she was under the arrest of the court in the plaintiffs' action, and, second, that in any case the placing of a notice on the ship was not an actual seizure. I do not accept either of these arguments. As to the first point, I do not see why the interveners should not exercise their statutory right of detention even while the ship is under arrest provided that they do not interfere with the marshal's custody, which it is not suggested that they have done. To hold otherwise would involve implying an unnecessary qualification in s 75 of the Act of 1920. As to the second point, I think that, having regard to practical considerations, the placing of the notice was an overt act sufficient for the purpose for which it was intended. Accepting, however, in favour of the interveners that there was a lawful and effective seizure of the ship by them on 28 September 1967, such seizure could only, by the terms of s 75, be a seizure in respect of the mooring charges of £2 7s 6d and pier tolls of £275 mentioned earlier, which were demanded by letter to the agents dated 26 July 1967. It could not be a seizure in respect of any other rates then due but not demanded, or becoming due thereafter. The interveners have not at any time taken any steps to exercise their right of sale, either in respect of the particular rates just referred to, or any other rates. The fact that the interveners have not yet taken steps to exercise certain powers, however, does not mean that they may not do so later. Subject to the making of the necessary demand under s 75, and the giving of the necessary notice under s 84, it seems that the interveners could at any time in the future take steps to detain and sell the ship in respect of all rates which are now, or may hereafter become, due to them.

This being the nature of the rights which the interveners have already exercised, or may in the future exercise, against the ship, the purpose of their intervention is, so I understand it, two-fold. First, they are concerned that they shall not, as a result of standing by and doing nothing, while the plaintiffs obtain a judgment against the ship and an order for her sale, be held to have waived or abandoned their statutory rights. This concern arises, I was told, from the decision in The Acrux. Second, recognising the potential conflict between the court's power of sale in an action in rem against the ship and their own rights of detention and sale under the Act of 1920, and recognising also the practical difficulties which such conflict may put in the way of an advantageous sale either by the court or by them, they seek an order of the court which will avoid such conflict, while nevertheless ensuring payment of the rates due to them in priority to other claims against the ship, including that of the plaintiffs.

It might be thought that a solution to this problem would be easy to find; but the difficulties which arise when it is sought to find one are well illustrated by the variety of alternative orders for which the interveners have felt it necessary to ask in their notice of motion as originally drawn. In para 1 of the notice of motion, the interveners asked that the plaintiffs' claim be dismissed for want of jurisdiction. I have dealt with that matter earlier and decided it in favour of the plaintiffs. In para 2 to para 5, the interveners asked for a series of different orders to deal with the matter of their rates. In para 2 they ask for an order, and I quote from the notice of motion,


"that the marshal do give to the [interveners] an undertaking to pay to them all their charges which are rates within the meaning of s. 75 of the Port of London (Consolidation) Act, 1920, whether incurred before or after the arrest of the Queen of the South, and that the undertaking be in the terms of the draft undertaking served herewith or in such other terms as to the court may seem just."

I do not think that it is necessary to read the draft undertaking. In para 3 they ask,


"Alternatively for an order (a) that the Admiralty marshal do withdraw from the Queen of the South in order that the [interveners] may be at liberty to exercise their rights under s. 75 of the Port of London (Consolidation) Act, 1920, and, (b) that the [interveners] be at liberty to exercise their aforesaid rights and thereafter pay into court the surplus of the proceeds of sale of the Queen of the South after deducting therefrom the amount of any rates due and owing to them and after reimbursing themselves the expense incurred by them under the provisions of the said s. 75; (c) and for a declaration that the Queen of the South be sold by the [interveners] free from all liens and encumbrances; (d) and for an order prohibiting any further arrest of the Queen of the South."

In para 4 they ask


"In the further alternative for an order (a) that the [interveners] be at liberty hereafter to exercise their rights under the said s. 75 against the proceeds of sale in court of the Queen of the South when sold by the Admiralty marshal, and (b) that the [interveners] be paid the amount of their dues and charges which are rates within the meaning of the said s. 75 in priority to all claims save those for the Admiralty marshal's expenses and the costs of arrest."

In para 5 they ask


"In the further alternative for a declaration that the [interveners] are entitled to exercise their powers under the said s. 75 in respect of the Queen of the South when she is in the hands of a purchaser from the Admiralty marshal."

During the hearing, counsel for the interveners told me that he would not pursue para 3, para 4 or para 5; but later he amended the notice with leave by adding a sixth paragraph asking for yet another form of order. Paragraph 6 reads,


"In the further alternative for an order that on the [interveners] undertaking not to seize, detain or sell the Queen of the South in pursuance of their statutory powers (a) the Admiralty marshal be directed to pay to the [interveners] out of the net proceeds of sale of the Queen of the South the sum of £277 7s. as a first charge thereon after the Admiralty marshal's expenses and the plaintiffs' costs of arrest and (b) the Admiralty marshal be authorised to include in his claim against the proceeds of sale as part of his expenses all charges due and owing to the [interveners] in respect of the Queen of the South incurred after the date of her arrest in this action and to pay the same to the [interveners]."

Counsel for the plaintiffs, besides taking the two points against the interveners which I mentioned earlier and said that I did not accept, took the line that he had no authority to agree, and would not agree, to any of the orders asked for by the interveners, or to any other order designed to help them in recovering their dues in priority to the plaintiffs' claim. In these circumstances, it is necessary for the court to decide the matter on the basis of the legal rights of the parties. ([1968] 1 All ER 1163 at 1172)

The right of a dock or harbour authority under its private Acts to detain a ship for rates is a statutory possessory lien: The Countess, Mersey Docks & Harbour Board v Hay ([1923] AC 345 at p 354; 16 Asp MLC 161 at p 164), per Lord Birkenhead LC. The right of such an authority to sell a ship in order to reimburse itself for rates out of the proceeds may be compared with a mortgagee's right of sale usually given to him by contract and in any case by s 35 of the Merchant Shipping Act, 1894. It is well established that, in an action in rem against a ship, the court has power to sell her free of both a repairer's common law possessory lien and a mortgagee's contractual or statutory right of sale. It does so on the basis that the rights of which the ship is freed by the sale, together with any priority over other rights to which they may be entitled, are transferred to, and preserved against, the proceeds of sale in court.

If the matter were free from authority, I should have thought in principle that the court should be able to deal with the statutory possessory lien of a dock or harbour authority in the same way as it deals with the common law possessory lien of a repairer; and with the statutory right of sale of such an authority in the same way as it deals with the contractual or statutory right of sale of a mortgagee. That is to say, I should have thought that the court should have power in an action in rem against a ship, to sell her free from both rights, while transferring equivalent rights with equivalent priority to the proceeds of sale in court; and further should have power to do this whether the dock or harbour authority consents or not. If the court does not have such power it is extremely inconvenient. For it means that, in any case where a dock or harbour authority has a right of detention or sale, the court cannot transfer the ship to a purchaser free of encumbrances, with all the disadvantages arising fom such a situation discussed by Hewson J in The Acrux. It appears from the decision of the Court of Session in Scotland in The Sierra Nevada that, by the law of Scotland, the court does have such power, certainly where the dock or harbour authority consents, and perhaps also where it does not. The actual decision only covers the case where the authority consents, but there are passages in Lord Fleming's judgment which seem to indicate that, if necessary, he might have been prepared to go further and hold that the court could exercise the power even without such consent. In particular, the manner in which he equates common law and statutory possessory liens in his discussion ((1932), 42 Lloyd LR at pp 310, 311) of the principles involved seems to me to point in that direction.

While that is the view of the law which I should have taken if the matter were free from authority, it is clear that it is not supported by the English decisions, to which I must now refer. In The Emilie Millon the Court of Appeal, setting aside an order of the Liverpool Court of Passage made in a wages action in rem, held, first, that the court could not, in such an action, make an order for the sale and delivery of a ship to a purchaser which would deprive a dock authority of its statutory right of detention without its consent; and, second, that such a right of detention was not a right capable of being transferred to, and preserved against, a fund in court representing the ship. That decision was applied, expressly or by implication, directly or indirectly, in The Sea Spray, The Spermina and The Ousel. If that decision is still in both respects good law, it means not only that the court cannot transfer a dock or harbour authority's rights of detention and sale to a fund in court representing the ship without the consent of the authority; but also that it cannot do so even with such consent, because there is in law no right capable of being so transferred.

The question arises, however, whether what I shall for convenience call the second part of the decision in The Emilie Millon is still good law. In The Sierra Nevada, the Scottish case to which I referred earlier, Lord Fleming declined to apply it, and held that, on the facts before him, a harbour authority's right of detention had been transferred, with its consent, to the fund in court. He was, of course, not bound by The Emilie Million. But it was relied on against the harbour authority in the argument before him, and he considered it carefully, together with The Countess, in his judgment. Having done so, he expressed the views ((1932), 42 Lloyd LR at p 312) (i) that the second part of the decision in The Emilie Million was not necessary for the determination of the appeal and was, therefore, obiter, and (ii) that it was, in any case, inconsistent with the later decision of the majority of the House of Lords in The Countess.

So far as (i) is concerned, I agree with Lord Fleming that the second part of the decision in The Emilie Millon was not necessary to the determination of the appeal, but I should hesitate to treat it as unauthoritative on that ground. So far as (ii) is concerned, however, it seems to me that there is great force in Lord Fleming's view. My reason for saying this is as follows. In The Countess, the dock authority's right of detention was, by a consent order made in a detinue action brought against the dock authority by the shipowners, transferred to a fund in court which the majority of the House of Lords treated as representing the ship. Moreover, although such order was only made by consent in the detinue action to which the shipowners and the dock authority were the sole parties, it was treated by the majority of the House of Lords as binding on third parties, namely, barge-owners with claims against the ship competing with those of the dock authority, who had never consented to the order or even had an opportunity of doing so or not doing so. This seems to me to indicate, contrary to the second part of the decision in The Emilie Millon, that the dock authority's right of detention was of such a character that it could, with the consent of the dock authority at any rate, be transferred from the ship herself to a fund in court representing the ship.

If that is the right view, the court could in the present case, with the consent of the interveners at any rate, sell the Queen of the South free of the intervener's right of detention, while preserving to them an equivalent right, with equivalent priority over other claims, against the proceeds of sale in court. On that basis the court could make an order on the lines of para 4 of the interveners' notice of motion, although some modification of the wording would, I think, be necessary. The court would, in effect, be treating the interveners in the same way as it would treat a repairer who had a common law possessory lien, and the order would be similar to the order made in such a case. The adoption of this approach would have the advantages of bridging, in part at least, the gulf which has yawned between English and Scottish law on this topic, and of mitigating, in part at least, the practical difficulties arising from a strict application of both grounds of the decision in The Emilie Millon. It involves, however, deciding a highly disputable question of law, on which I should prefer not to express a final opinion unless it were essential to do so. In fact, I do not think that it is essential, for it seems to me that there is another and perhaps simpler solution to the problem.

Recent decisions of this court show that, where it is for the benefit of all those interested in a ship that the marshal should incur expenditure on her in order to enable him to sell her to advantage, the court may authorise him to incur such expenditure (see The Parita; The Westport (No 2), British Mexican Petroleum Co Ltd v M/S or Vessel Westport). Applying the principle of those decisions to the present case, it seems to me that the court has power, if it thinks that it is for the benefit of all those interested in the Queen of the South, in order that she may be sold to advantage, that the marshal should pay off the claims of the interveners for rates which had accrued due before the arrest, to authorise him to do so, and to include the expenditure in this expenses of sale. It further appears to me that, so far as rates which have accrued due to the interveners since the arrest are concerned, the court can also authorise the marshal to include these in his expenses. Indeed it would, I think, be in accordance with the usual practice for him to do this, even without any special authorisation from the court. In my judgment, on the facts of this case, it would be for the benefit of all those interested in the Queen of the South that the interveners' claims for rates should be paid off, so that the marshal can sell the vessel free of the interveners' rights of detention and sale, whether already exercised or capable of being exercised hereafter. If the marshal cannot sell the ship free of such rights, he may be unable either to find a purchaser at all, or at any rate to find one willing to pay a proper price. If the interveners are to be paid off in this way, however, it must be on the basis that they give a written undertaking to the court not to exercise their rights of detention or sale in respect of the rates concerned.

In the result, I shall: (i) pronounce for the plaintiffs' claim in the sum of £290 3s; (ii) order the appraisement and sale of the ship; (iii) direct the marshal that, subject to a written undertaking by the interveners to the effect stated earlier, he is to pay to the interveners, and charge in his expenses of sale, all rates owing to the interveners up to the date of delivery to the purchasers in respect of which the interveners would have power to exercise rights of detention or sale under s 75 and s 84 of the Act of 1920, provided always that the amount so paid is not to exceed the net proceeds of sale after deduction of the marshal's other expenses; (iv) reserve all questions of priority.

I have been asked to indicate how future cases, in which similar questions arise can most conveniently be dealt with. In my view, the marshal should ask all interested parties of whom he knows by letter whether they consent, or at least do not object, to his paying off rates in respect of which a dock or harbour authority has powers of detention or sale, and including them in his sale expenses. After a reasonable time for answer has elapsed, he should apply to the registrar under [1] RSC, Ord 75, r 12(1), for authority to pay the rates. If all interested parties have consented, or at least not objected, to such payment, the registrar should, in general, feel free to give the authority asked for. If one or more interested parties object, the registrar should either determine the matter himself, or, if he thinks preferable, refer it to the judge. In either case, that is to say whether, where there is an objection, the matter is determined by the registrar, or referred by him to the judge, all interested parties should be given an opportunity of being heard by service of notice on them in accordance with the rule.

Order accordingly.


RSC, Ord 75, r 12(1) provides: "The marshal may at any time apply to the court for directions with respect to property under arrest in an action and may, or, if the court so directs, shall, give notice of the application to any or all of the parties to any action against the property.