#laws of other maritime nations. In France, the rule is, that the master cannot sell his ship without a [† 17] special authority from his owners, unless it be so and his brother, were liable to pay the bottomry loan of 1000 livres, with maritime interest. "I don't doubt," continues Valin, "that the decision was right, and that it proceeded upon the ground that Faudou, the substituted captain, not having made a formal report to the consul, or taken care to have inserted in the surveys the fact that the innavigability of his ship had been occasioned by bad weather and seadamage, the presumption was, that it proceeded from her own inherent defects." "Had his papers been regular, the judgment could not have been in favor of the lender on bottomry, for the inability of Faudou to borrow money for the purpose of repairs, placed him in the same position as if the means of repairing the vessel did not exist in the place where she lay." "It is true, that it would be dangerous to admit such an excuse, without investigation, for a captain might allege it falsely, to the injury of the insurers and lenders on bottonry. Certainly it would deserve no attention, if there were goods on board the ship which might have been sold. But Faudou was a substituted captain, and it is further to be particularly noted, that the ship was in a foreign country, between which, and the residence of his owners, there was probably no opportunity of correspondence, and where, therefore, it is by no means wonderful that the captain of a ship, without any cargo, should find himself also without credit." "Under such circumstances, I repeat, the case is the same as if there had been no materials or workmen in the place to execute the repairs, so that, if Faudou had done the needful, to prove that the bad condition of his ship did not proceed from her inherent defect, the bottomry lender must have failed in his suit, without pre judice to his claim upon the proceeds of the sale."* In our Courts, as will be seen from the decisions cited in the text, the authority of the master to sell his ship has been most frequently the subject of consideration, in cases of insurance, many of which have been discussed on the assumption that the same circumstances which would justify the sale of an uninsured ship, as between the owners and the master, and sustain the title of a purchaser from him, will also suffice to establish a claim, on the part of the owners of an insured ship, for a total loss against underwriters. The facts of a particular case, may justify reasoning of this description, but it must always be remembered, that there is no such head of insurance law as loss by sale. † That, which in its own nature is not a total loss, cannot be converted into one by any act of the master. The propriety of the master's conduct, in the sale of his ship, and the liability of the insurers on their contract, are questions perfectly distinct. A constructive total loss occurs, when, by means of the perils insured against, a ship has sustained such injury, that a prudent and discreet owner, uninsured, looking at the cost of repairs, and the intrinsic value to him of the ship, under all the circumstances attending her, when repaired, would not repair her.‡ A master may be justified in selling his ship when he finds her in such a condition from any cause, or combination of causes, as from recent damage, imperfect construction, bad material, old age, and decay, that she cannot safely proceed on her voyage without repairs, which he has not the means of obtaining, or only at a cost exceeding the amount, which, looking at her probable value, after their completion, a prudent and discreet owner would think right to incur. [[ * Valin. Com. sur l'Ordonnance, liv. 3, tit, 6, art. 46. + Per Mr. Justice Bayley, in Gardiner v. Salvador. Young v. Turing, 2 Scott's N. R. 752; Cazalet v. St. Barbe, 1 T. R. 187; Valin. Com. liv. 3, tit. 6, art. 29. The Fanny and Elmira, ante, p. 5; Soames v. by Boucher, cap. 245, ss. 754, 760. Sugrue, ante, p. 15; Consulat. *+This doctrine, that necessity alone can justify the [16] sale of a ship by its master, and sustain the title of a purchaser from him, is in strict conformity with the have become so circumstanced, par fortune de mer, and therefore to be a loss within the policy. Emerigon,* in his Traité des Assurances Maritimes, coincides in that opinion, and it is also adopted by Pardessus and Boulay Paty.+ But the commentator on the Ordonnance de la Marine, Valin, is the authority on whom all these learned foreigners rely, in support of their position, and his opinion is so clear and unhesitating, that he denies a decision to the contrary, pronounced by the Judges of the Court of Admiralty‡ at Marseilles, to be law, and thinks it must have proceeded upon grounds which do not appear from the Report before him. The case, as cited by Valin, was as follows: On the 5th of September, 1754, Candole, the master of the Polacca St. Etienne, borrowed, on bottomry, and the security of his brother, a sum of 1000 livres, from Maurice Barratier, for a voyage to the Levant. The maritime interest agreed upon was 10 per cent. for six months, and at the same rate for any longer period, not exceeding three years. After a year's voyage, Candole died, and the command of the vessel devolved on the mate Faudou. In January, 1756, the vessel arrived at Cyprus, and on the 20th of that month the crew presented a memorial to the French consul, requesting that the ship might be examined by surveyors, and offering to re-embark, if they should declare her to be navigable. The surveyors reported, that if the ship were repaired, she might continue navigable for several years. The repairs were estimated at 12,000 piastres. On the 23d of the same month, the consul issued an order, by which Faudou was required to proceed forthwith to the repairs. Faudou remonstrated, excusing himself on the ground that he could not procure money for the purpose. The consul, notwithstanding, repeated his order. On the 3d of February, Faudou, having in vain endeavored to borrow money on any terms, declared, "that he abandoned the Polacca to be disposed of by the consul, as he might think best, for the advantage of the parties interested. The consul, accordingly, sold the ship for 901 piastres, with which he paid the wages of the crew. The vendee repaired, and afterwards sent her to sea. On the 22d of June, of the same year, an action was commenced by Jean Baptiste Ode, the assignee of Maurice Barratier, by whom the money was lent on bottomry, against the representatives of Candole, and his brother, to recover the 1000 piastres which they had borrowed, with the maritime interest agreed upon, up to the time the Polacca was sold. The defence was, that the ship having been declared innavigable, she had been abandoned to the insurers, and the lenders on bottomry, who had therefore no claim beyond the amount realized by the sale. To this the plaintiff replied, first, That the captain had not submitted a consulat, or formal report to the consul, and that by reason of that omission, there was no means of ascertaining whether the condition of the vessel, at the time of her sale, was the result of her vice propre, or of perils of the sea. Secondly, That the vessel had not been declared absolutely innavigable, but only innavigable without repairs, that Faudou's inability to procure money, was his own affair, or, at all events, a circumstance which could not affect the insurers or lenders on bottomry. On this state of facts, the Court decreed, that the representatives of Candole, *See Emerigon, Traité des Assurances, tit. Innavigabilité, and Pothier du Contrat. d'Assurance, cap. 3, s. 1. + Boulay Paty. Cours de Droit Commercial Maritime. "De l'Innavigabilité." For the jurisdiction of the Judges of the Admiralty, see section 2, of title 2, of the Ordonnance, "De la competence des Juges de l'Amirauté." laws of other maritime nations. In France, the rule is, that the master cannot sell his ship without a [† 17] special authority from his owners, unless it be so and his brother, were liable to pay the bottomry loan of 1000 livres, with maritime interest. "I don't doubt," continues Valin, "that the decision was right, and that it proceeded upon the ground that Faudou, the substituted captain, not having made a formal report to the consul, or taken care to have inserted in the surveys the fact that the innavigability of his ship had been occasioned by had weather and seadamage, the presumption was, that it proceeded from her own inherent defects." "Had his papers been regular, the judgment could not have been in favor of the lender on bottomry, for the inability of Faudou to borrow money for the purpose of repairs, placed him in the same position as if the means of repairing the vessel did not exist in the place where she lay." "It is true, that it would be dangerous to admit such an excuse, without investigation, for a captain might allege it falsely, to the injury of the insurers and leaders on bottonry. Certainly it would deserve no attention, if there were goods on board the ship which might have been sold. But Faudou was a substituted captain, and it is further to be particularly noted, that the ship was in a foreign country, between which, and the residence of his owners, there was probably no opportunity of correspondence, and where, therefore, it is by no means wonderful that the captain of a ship, without any cargo, should find himself also without credit." "Under such circumstances, I repeat, the case is the same as if there had been no materials or workmen in the place to execute the repairs, so that, if Faudou had done the needful, to prove that the bad condition of his ship did not proceed from her inherent defect, the bottomry lender must have failed in his suit, without pre judice to his claim upon the proceeds of the sale." * In our Courts, as will be seen from the decisions cited in the text, the authority of the master to sell his ship has been most frequently the subject of consideration, in cases of insurance, many of which have been discussed on the assumption that the same circumstances which would justify the sale of an uninsured ship, as between the owners and the master, and sustain the title of a purchaser from him, will also suffice to establish a claim, on the part of the owners of an insured ship, for a total loss against underwriters. The facts of a particular case, may justify reasoning of this description, but it must always be remembered, that there is no such head of insurance law as loss by sale. † That, which in its own nature is not a total loss, cannot be converted into one by any act of the master. The propriety of the master's conduct, in the sale of his ship, and the liability of the insurers on their contract, are questions perfectly distinct. A constructive total loss occurs, when, by means of the perils insured against, a ship has sustained such injury, that a prudent and discreet owner, uninsured, looking at the cost of repairs, and the intrinsic value to him of the ship, under all the circumstances attending her, when repaired, would not repair her.‡ A master may be justified in selling his ship when he finds her in such a condition from any cause, or combination of causes, as from recent damage, imperfect construction, bad material, old age, and decay, that she cannot safely proceed on her voyage without repairs, which he has not the means of obtaining, or only at a cost exceeding the amount, which, looking at her probable value, after their completion, a prudent and discreet owner would think right to incur. || * Valin. Com, sur l'Ordonnance, liv. 3, tit, 6, art. 46. + Per Mr. Justice Bayley, in Gardiner v. Salvador. Young v. Turing, 2 Scott's N. R. 752; Cazalet v. St. Barbe, 1 T. R. 187; Valin. Com. liv. 3, tit. 6, art. 29. The Fauny and Elmira, ante, p. 5; Soames v. Sugrue, ante, p. 15; Consulat. by Boucher, cap. 245, ss. 754, 760. [† 18] damaged, as to be no longer capable of navigation (u). In the United States, the decisions of our courts [† 19] have been maintained; and it has †been held, that in cases of extreme necessity the master may sell in a foreign country, but not in the country where his owner lives (x). What circumstances of distress or damage will constitute such a case of urgent necessity as may enable a master to convey to a purchaser an indefeasible title to his ship, it is more difficult to determine (y). A learned writer has cited with approval the rule suggested by Mr. Justice Richardson, when at the bar, in the case of Reid v. Darby. "So long as the subject matter which the master is entrusted to navigate continues as a ship, and capable of navigation with such repairs as are to be had, he cannot sell it; he can only sell the materials when it is broken up, or become a mere wreck." Cases may, perhaps, occur in which this rule would be considered too strict; (2) but it is one to which prudent purchasers will find it their interest to attend. "The master," said Mr. Baron Parke, delivering the judgment of the Court of Exchequer, in a late case (a), "has by virtue of his employ*ment not merely those powers which are necessary for the` What, then, is the meaning of the rule so frequently inculcated, that the master, in case of a misfortune to his ship, must do his "best for the benefit of all concerned?" A ship, driven into port by sea-damage in itself but trifling, is discovered on survey to be in a state of general and perilous decay. The master is satisfied of her inability to complete her voyage without extensive repairs, and that the cost of them must be such as to create a grave doubt if an immediate sale would not be more for the interest of her owners. In resolving that doubt, if he means fairly and reasons rightly, his knowledge that the ship is insured will not influence his judgment. Fraudulent statements or suppressions in protests and surveys, followed by a hasty sale, or by extravagant repairs, may seriously affect the interests, but cannot extend the legal liability of the underwriters. His duty to them is no other than the duty of an honest servant of an honest employer to those with whom that employer has contracted. Whether he proceeds to a sale, or gives orders for repairs, he should carefully as certain the amount of damage resulting from recent perils of the sea, and of damage attributable to other and older causes preserving for the satisfaction of all whose interests may be affected by his acts, the evidence, which will enable them also to distinguish the one from the other, and thereby adjust their respective losses. It is in this sense only that the master can be said to discharge his duty to all concerned, at least if the insurers are included amongst them. See upon this subJect, Weskett on Insurance, title Repairs ; and for the rule of the master's conduct, when masters were part-owners, and ships unprotected by insurance, the Consolato, par Boucher, cap. 245, ss. 754, 760. (u) Pardessus Cours de Droit Commercial, part 3, tit. 1. (x) Scull v. Briddle, 2 Wash. Cir. R. 150; Story's Abbott, p. 10. See also Phillips on Insur. vol. 2, p. 317; Emerigon, vol. 1, pp. 591 and 892; Valin, art. 46, tit. 6. (y) See the Law Magazine, No. 27, art. 3, Mercantile Law. (2) Barr v. Gibson, 3 M. & W. 390.1 *navigation of the ship and the conduct of the adventure to a safe termination, but also a power, when such termination becomes hopeless, and no prospect remains of bringing the vessel home, to do the best for all concerned, and therefore to dispose of her for their benefit. It is a case of necessity, when *nothing better can be done for the master's employers." (1) (1) The master of a vessel has an authority to sell only in cases of extreme necessi ty, not indeed of physical necessity, but of moral necessity. By moral necessity is to be understood, not an overwhelming and irresistible calamity or force; but a strong, and urgent, and if one may so say, a vehement exigency, which justifies and requires the sale to be made, as a proper matter of duty to the owner, to prevent a greater sacrifice, or a total ruin of the property. In short, the case of a moral necessity cannot perhaps be better put, than to say, that it is such an act of sale, as, under like circumstances, a considerate owner, who was uninsured, would adopt for his own true interest, and that of all concerned in the voyage. Robinson v. Commonwealth Ins. Co. 3 Sumner, 226, 227; Winn v. Columbian Ins. Co. 12 Pick. 255, 286; Patapsco Ins. Co. v. Southgate, 5 Peters, 604; Hall v. Franklin Ins. Co. 9 Pick. 466, 477, 478. In this last case Mr. Justice Putnam says; "There must be something more than mere expediency in the case; the sale should be indispensably requisite. The reasons for it should be cogent. We mean a necessity, which leaves no alternative, which prescribes the law for itself, and puts the party in a positive state of compulsion to act." See further to the same effect, The Brig Sarah Ann, 2 Sumner, 206; Gordon v. Mass. F. & M. Co. 2 Pick. 262; 3 Kent, (5th ed.) 173, note (d); The Schooner Tilton, 5 Mason, 475, et seq.; American Ins. Co. v. Center, 4 Wendell, 45; New England Ins. Co. v. Brig Sarah Ann, 13 Peters, 387; Pierce v. Ocean Ins. Co. 18 Pick. 88; Fontaine v. Phoenix Ins. Co. 11 John. 293; 2 Phill. Ins. (2d ed.) 311-317; Américan Ins. Co. v. Ogden, 15 Wendell, 532. In cases of a sale of the ship by the master, it is certainly not sufficient, that he has acted with good faith, and in the exercise of a fair discretion; but he must have acted under the pressure of a moral necessity, such as is suggested above. But the actual conduct of the master is certainly an ingredient to be taken into consideration, in connexion with the other circumstances, in order to ascertain the fact of the necessity of the sale. Robinson v. Commonwealth Ins Co. 3 Sumner, 227; The Schooner Tilton, 5 Mason, 476. See the remarks on the expression "Moral necessity," in The Ship Fortitude, 3 Sumner, 248, 249; 2 Phill. Ins. (2d ed.) 316. As to the rule, that the necessity must be such that a prudent owner would sell rather than repair, see 2 Phill. Ins. (2d ed.) 316, 317; The Sarah Ann, 2 Sumner, 215; Robinson v. Commonwealth Ins. Co. 3 Sumner, 226, 227; Winn v. Columbian Ins. Co. 12 Pick. 285, 286. In the case of Scull v. Briddle, 2 Wash. C. C. 150, Mr. Justice Washington held, that in cases of extreme necessity the master may sell in a foreign country, rather than let the property perish, but not in the country where his owner lives. This was held in the case of a sale of the materials of a wrecked vessel, which there was no immediate necessity of selling, but which might have been stored in a place of safety. But in The Brig Sarah Ann, 2 Sumner, 215, Mr. Justice Story, holding a contrary doctrine, remarked, that "if such an urgent necessity does exist, as renders every delay highly perilous, or ruinous to the interests of all concerned, the duty of the master is the same, whether the vessel be stranded on the home shore or on a foreign shore, whether the owner's residence be near, or be at a distance. I am aware of the doctrine maintained by my brother, the late Mr. Justice Washington, in Scull. Briddle, 2 Wash. C. C. 150; and unless it is to be received with the qualification above stated, I cannot assent to it." This opinion of Mr. Justice Story has been affirmed by the Supreme Court of the United States, in the case of New Eng. Ins. Co. v. Brig Sarah Ann, 13 Peters, 387, where the Court say; "The true criterion for determining the occurrence of the mas |