Clerks, J. (dissenting.)
It may be, I suppose, assumed that Van Bokkelin v. Ingersoll, (5 Wend. 317,).has settled the long disputed question as to the lien of. a master of a vessel on the freight, for advances made, or liabilities incurred in a foreign port; although .it seemed to be contrary to the general current of authority in this country and in England. Strong reasons existed against recognizing such a lien ; and the principal reason was, that such a lien may inequitably interfere with the lien of the seamen for their wages. The law, on the grounds of public policy, and motives of humanity, has been always very solicitous to afford the utmost security to seamen for the payment of their wages ; so that, even. when the vessel is hypothecated by a bottomry or respondentia bond, the claim, which it secures, has no priority over seamen’s wages; although it has a priority over' all other claims.
The case of Van Bokkelin v. Ingersoll, as I have said, undoubtedly recognizes this lien on the part of the master for advances and liabilities ; but it was a case where he himself was the plaintiff, prosecuting his right to the lien. He had actual possession of a portion of the cargo, which he had retained for freight and primage, claiming and asserting his lien. It was stored by the master with the defendant; who, by the direction of the owner, delivered it to the consignee, on the payment of the freight and primage to the owner. The master sued the store keeper in an action of trover, for that portion of the cargo, and recovered, on the ground that *273he had this lien for the freight on that portion of the cargo which he had retained; but it is distinctly affirmed, if he parted with it to the consignee, without receiving the freight, that he would have lost his lien. It is nowhere pretended that for the mere freight itself, due by the consignees, he has any lien after the latter receives the cargo. On the whole, Van Bokkelin v. Ingersoll goes no farther than to establish the right of a master to retain the cargo until the freight be paid to him, when he has made advances arid incurred liabilities in a port other than that of the ship. It is, indeed, further added that if he collects the freight he has a lien upon it for those advances and liabilities, and that the owner of the ship cannot recover the amount of the freight until the master is indemnified. That was a controversy in fact between the master and the owner. Besides, in that, and I think in all the cases, the advances and liabilities were not secured by any bottomry or respondentia bond. The master, in that case, merely gave his promissory note for the amount of the repairs, at ordinary interest, if any. In this case the plaintiffs thought proper to receive for their security an hypothecation of the hull and appurtenances of the ship. The bond did not include more than this ; they were satisfied with it. They could have required more ; and the master could have hypothecated the freight, if the plaintiffs required it. But now they claim a priority above the claims of all. other creditors and above the wages of the officers and crew ; after taking this hypothecation on the ship alone; by which they were to receive interest at the rate of thirty per cent on the amount advanced; the whole of which they claim in this action.
[New York General Term,
January 7, 1867.
The order should be affirmed, with costs.
Order reversed.
Leonard, Clerke and Ingraham, Justices.]