The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-04-13

with all the privileges and liabilities consequent
thereon. The former is insufficient for either Of
these purposes. by the express words Of the
statute, and the latter Is indispensable The
statute requires the Collector to keep records,
and to furnish copies OF the rscpri Of registry on
the owners application. Sec. $50. Those re-
cords are always accessible to parties interested
whether the statute expressly makes then, 90, or
not The fact, which is common knowledge
here, that mortgages Of ships have uniformly been
recorded only witheihe Collector. and that no ap-
pcation was ever made to the Courts, to obtain
information thereof, is significant
Second: Have Spencer / Co, as ships hus-
bands and part owners, a lien for their disburse-
meuts for the vessel, preceding the mortgages
claims aa Geffg dal
The statutes Of this country make no provision
for preferred claims BY those furnishing materials,
repairs. or supplies. A maritime lien gives Pc
cnliar privilege over other debts, right to tha
property itself, or jus ia re. and whether it exists
BY statute or by the general maritime law, It is
St,icti .j,u-is, and should receive construction
limited solely to the objects for which il exists.
1t is case under the maxim Of the Civilian
Paulus, =" Que propter necessitatem recepta
sunt non debent in argumentum trahi," ane-
cessity justi6es no argument beyond the case it
has enforced" See The Yo,asg Mechanic The
Kiersayys, 2 Curtis, Giro. Court Rep, 4O4, 42l.
Those objects are, to promote the interests of
commerce, and that ships may pillow the ocean,
and not rot by the WALL In.the bark Georges,
our late learned Chief Justice Lee appears 10
have regarded the doctrine Of the civil law which
allows liens for supplies on domestic vessels as ir
force here. We are not aware that the law Of
that case has been doubted in this Court. or that
shipping or mercantile interests have suffered
any Inconvenience therefrom But BY all the
authorities to which we have access, that decision
is not applicable to the present case. The lien
Of part owners who are also ships husbands for
their advances was extended even by Lord Hard
wicke only to cases of partnership. We have
decided in Tucker vs.. Metcalf's Execrs. that
a partnership exists only by virtue Of an agree
ment to that effect between the partners Per-
sons owning shares in a vessel are prima f1cie
partowners, and not partners. The LsBch. Curt.
G. @. Rep, 427. The agreed facts iu this case
allow US to view the shareholders in 20 light as
partners in single ventures or in the general busi
ness Of the ship. Even il we are TO regard this
as partnership, the law Of England. to-day. is
clear, that Lord Hardwicke's decision IN Dod-
dington vs.. Hallet, is indefensible In the Lu-ch,
ubi supra tried before Justices Curtis and Ware,
two of the most eminent admiralty Judges in
the United States, the following is the language
of the Court, after stating that Doddington vs.
Hallet, as over-ruled by Lord Eden, in ex parte
Young was no longer law in England There
has been some diversity Of decisions in this
country; but think it has proceeded from di-
versity in the views taken Of the particular facts
of the cases rather than from any real difference
in principles. That the owners Of vessel may
be co-partners in respect to that as well as any
other property, and that when they are so, each
has lien, can not be doubted. But where no
such special relation exists where they are merely
part-owners. and. as such, tenants in common,
that one has no hen on the share Of another for
advances, l believe to be equally clear And
when this distinction is attended TO, the diversity
between the cases is much lessened, If it be not
entirely removed" An examination Of the cases
cited leads Us to think that the cases are not
now as irreconcable" as Prof. Parsons, in one
part Of the text of bis valuable treatise on Ship
ping and Admiralty, seems to think. d lo
The authorities cited are clearly TO the effect
that neither a partowner as such, nor ships
husband as such. has lien on the shares Of the
other owners. or on the entire ship for advances.
See, also Flanders on Shipping. 1883. Tie
cases distinguish betweehthe Zen on the proceeds
Of voyage and on the ship ITSELF a99Fii5
The shares mOragaged by Spencer & Co could
no longer be their oaou security far aISdncss
made By Lhemsslres Babcocks share was also
mortgaged. together with that Of, Spencer & Co,
and with their full knowledge. How could they
expect his share to pay them for subsequent out
lays Even lien for repairs must. not be allowed
to remain uneniorced, until bona .fdle purchasers
may have reason to think that none exists. Ad-
niraty Courts do not sit 10 enforce stale claims.
To cite again from the Civilians: Every one
must suffer the consequences Of his own dslsy;P
"nnicuique nora sua nocets To allow the IieB
claimed ju shis case would be going further than
ignoring mere hches, or neglect il would open
the door TO endless difficulties, one Of which
would be, to destroy the value Of mortgage Sc
curities. ''tl = s7 nos
Although We are not bound BY the English and
American decisions. 10 the extent and IN the
manner that the courts there arR governed by
them, we have. on that account, no more peEer
to decide arbitrarily. l raaf lla.;,, 44s.r
The case has been fully and ably presented by
the learned counsel. but we are compelled, upon
full consideration Of the authorities and BY fixed
principles Of law, to disalIow the ciaim Of the
sssignees and to declare the mortgages to be
valid. 81 L5f1'T1inD ised - sa8irmff9
Let Judgment be entered accordingly, WITH
costs 70 the moFtgagsessssdt iafs be- g51o
- - -. 81 asff
TIE B.szstip correspondent gives The following