service, he cannot deny that it was rendered to him, and for his benefit. This may seem to conflict with another principle, that no man can make himself the creditor of another against that other's will or without his consent. But they are reconciled by this rule, that if the benefit be rendered, then he who may receive it may also reject it; it is wholly at his choice whether to accept and hold it or not; and if he does choose to accept and hold it, then on all grounds, both of moral and legal justice, he puts himself in the same position as if he had originally requested this service. But this rule, again, has one important qualification; for it is not applicable at all, or if at all only in a modified form, where the party to be made debtor has no such choice, because the benefit done cannot be renounced or rejected without a positive loss and detriment. Does the conferring of it in that case, and the subsequent holding of it, create a legal claim against the holder? Perhaps the precise answer should be, that the holder, who retains a benefit because he cannot reject it, as if repairs were made to a ship, of such a kind and extent that they could not be removed without dismantling her, should pay for it, not the whole cost, but so much as it is certainly worth to him after deducting full compensation for all the damage and inconvenience of paying for it against his will. But the law cannot well apply such nice distinctions in practice; and the cases which hold an unconditional purchaser not in possession liable for supplies, although the furnisher had no knowledge that he was owner, or a mortgagee who has taken possession liable although the furnisher did not know of his title or possession, may rest, either upon the ground that he holds the benefit and must therefore admit his request for it, or that his ownership confers a constructive agency and authority on the person -usually the master - who ordered the supplies or repairs. But it cannot be said, with any accuracy, that in these cases credit is given to those persons, even if the charge in the furnisher's books

In Blanchard v. Fearing, 4 Allen, 118, supplies were furnished to a vessel upon the order of her master, some of which were for the vessel's permanent advantage. The bill of sale to the defendant was at the time recorded at the Custom House, and the supplies were furnished on his credit. It appeared in evidence that the bill of sale was intended merely as collateral security, that the defendant had not taken possession of the vessel, or received any part of her earnings, or in any way interfered with her management, or in the appointment of her master. Held that he was not liable. See Macy v. Wheeler, 30 N. Y. 231.

is to "the Ship Henry and her owners." And it can never be true, that the owner or mortgagee in possession is liable for repairs put in against his will, although, being put in, he lets them remain.

The question, however, recurs, What is the liability of a mortgagee out of possession? And the general answer now is, undoubtedly, that he is not liable. The question of credit will

1 With respect to mortgages of ships the same difficulty seems to have existed as with respect to mortgages of lands. But while the equitable doctrines laid down by Lord Mansfield in the great case of Eaton v. Jaques, 2 Dougl. 455, with respect to the true nature of the interest of a mortgagee out of possession, were subsequently overruled in Great Britain (see Williams v. Bosanquet, 1 Brod. & B. 238), so far as they applied to real estate, they maintained their ground successfully in the case of ships. In this country, they were generally ratified to their full extent, almost from the first.

A doubt certainly has been expressed, vide Westerdell v. Dale, 7 T. R. 306, 312, per Lord Kenyon, C. J.; Tucker v. Buffington, 15 Mass. 477; but those cases in which the mortgagee was held liable as owner, Ex parte Machel, 1 Rose, 477; Starr v. Knox, 2 Conn. 215; Lord v. Ferguson, 9 N. H. 380; Henderson v. Mayhew, 2 Gill, 393, turn entirely on the rejection of the evidence offered to show the true nature of his title, whilst they recognize the truth of the general rule, which seems now well settled, namely, that where the mortgagee has neither taken possession of, nor exercised any other act of ownership over, the vessel, he is not answerable for, nor entitled to, the benefit of the acts of the master or other agent of the ship. Thus, he is not liable for supplies and repairs furnished to her. Jackson v. Vernon, 1 H. Bl. 114; Twentyman v. Hart, 1 Stark. 366; Annett v. Carstairs, 3 Camp. 353; Baker v. Buckle, 7 J. B. Moore, 349; Briggs v. Wilkinson, 7 B. & C. 30; M'Intyre v. Scott, 8 Johns. 159; Ring v. Franklin, 2 Hall, 1; Birkbeck v. Tucker, 2 Hall, 121; Miln v. Spinola, 4 Hill, N. Y., 177; Hesketh v. Stevens, 7 Barb. 488; Brooks v. Bondsey, 17 Pick. 441; Winslow v. Tarbox, 18 Maine, 132; Cutler v. Thurlo, 20 Maine, 213; Colson v. Bonzey, 6 Greenl. 474; Lord v. Ferguson, 9 N. H. 380; Philips v. Ledley, 1 Wash. C. C. 226; Duff v. Bayard, 4 Watts & S. 240; Cordray v. Mordecai, 2 Rich. 518. But where he wrote to the person furnishing supplies, "It does not belong to me to pay any bills on the vessel, but at the same time I am holden for them," he was held liable. Oakes v. Cushing, 24 Me. 313.

And, generally, he is not liable for the contracts or negligence of the mortgagor who is master. Thorn v. Hicks, 7 Cow. 697. Nor for the wages of the master and crew. Annett v. Carstairs, 3 Camp. 353; Fisher v. Willing, 8 S. & R. 118.

On the other hand, he is not entitled to the freight earned by the ship. Chinnery v. Blackburne, 1 H. Bl. 117, n.; Brancker v. Molyneux, 3 Scott, N. R. 332. In Milton v. Mosher, 7 Met. 244, a mortgagee, on the vessel arriving in port, made a secret entry and took formal possession of the vessel, but did not give notice to any one or contribute to the expenses of the next voyage. On this voythe owners made a second mortgage of the vessel to the plaintiffs, subject to

age

always be decisive where the parties have made a bargain, and credit is given according to it, for there is nothing to prevent their making what bargain they will. A furnisher of supplies may agree with the master ordering them, even if there be an absolute owner in possession, to charge them only to the master and look to nobody else; and then he has no claim beyond the master. So a mortgagee out of possession, or indeed a stranger, may order the goods or service as for himself, or may agree to pay for them if supplied to the ship, and then he will be bound to pay for them without any reference to his interest in the ship. Although an owner of a vessel may not be liable for labor and materials furnished, when credit is given exclusively to another party, yet he may be held on his oral promise to pay for them, made for a valuable consideration, such a promise not being a promise to answer for the debt of another within the statute of frauds.1

the first mortgage, and of the catchings of the vessel. Held that the plaintiffs were entitled to the catchings, and the first mortgagee was not entitled to the rights of a mortgagee in possession. See also post, ch. 7, § 4. In Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204, the ship was transferred by the owner, to the defendant by an absolute bill of sale, and the transfer duly recorded. The vessel, at the time, was at sea. The transaction was not intended as a sale, but merely as a collateral security for a loan. Subsequently the master, in ignorance of what had passed, entered into a contract of affreightment with the plaintiff. This action was brought to recover damages for the breach of said contract. Held, that the plaintiff could not recover. Jervis, C. J., delivering the opinion of the court, said: "I am of opinion that the defendant is entitled to judgment. It is admitted that the law is now different from what it was formerly, when it used to be considered that the register only was to be looked at, and that it alone was conclusive as to the ownership of the vessel, and conclusive, therefore, of the liability of the party appearing thereon as owner; but it is now settled that the question of liability in these cases is to be determined in the same way as in all other cases of contract, by ascertaining with whom the contract was made. That will depend, in this case, on the relation of principal and agent, whose agent was the master? It has been admitted, that, in the case of a mortgagee of a vessel who takes merely the security of the ship, not intending to incur liability as owner, a mere entry by him into possession does not render him liable for the contracts of the master, made after the execution of the mortgage and before entry, because that alone does not prove an intention on the part of the mortgagee to adopt the master as his agent." Affirmed in Exchequer Chamber, 18 C. B. 886, 36 Eng. L. & Eq. 350. See also Hackwood v. Lyall, 17 C. B. 124, 33 Eng. L. & Eq. 211. 1 Fish v. Thomas, 5 Gray, 45. It was also held, in this case, that the agreement of the promisee to forbear to enforce his claim in admiralty was a good consideration for the promise, whether he actually had a lien or not.

And this bargain, or any other, may be proved by, or inferred from, circumstances. But, on the one hand, a mortgagee who does not have the possession and control of the ship does not authorize a furnisher to consider him the owner; and if credit be given him, it does not bind him unless given with his consent. On the other hand, so long as the mortgagor retains possession and control, the ship may be regarded as being only a security for a debt which is less than its value, the mortgagor not only owning the equity of redemption, but keeping possession of the vessel, that he may, by her earnings, enable himself to pay the debt, and, by adding to, or preserving her value, add to or preserve his own interest in her if he proposes to pay the debt without her, or in the excess of her value over the debt. And therefore the mortgagee cannot be made liable on the ground of accepting and holding the benefit rendered by the supplies or repairs.

And even if a person takes a bill of sale of a vessel absolute in its terms, and is registered as owner, and the person furnishing the supplies consulted the record at the custom-house, and gave credit to him as owner, he is not liable as such, if the bill of sale was intended as collateral security, and he has never taken the vessel into his possession or control, or exercised any acts of ownership.1 It should be noticed here, and will be more fully stated hereafter, that "material men" so called, that is, those who supply the materials for supplying and repairing a ship, and all who work upon her for such purposes, have, by the maritime law, a lien on the ship itself for the whole amount due them, excepting in the home port.2 But this is usually enforceable only in admiralty, although some recent State statutes seem to give a similar right and remedy in the State courts. This subjeect will be considered hereafter.

1 Howard v. Odell, 1 Allen, 85; Blanchard v. Fearing, 4 Allen, 118.

Ex parte Shank, 1 Atk. 234; Buxton v. Snee, 1 Ves. Sen. 154; Watkinson v. Bernadiston, 2. P. Wms. 367; Westerdell v. Dale, 7 T. R. 306; Rich v. Coe, Cowp. 636; Justin v. Ballam, 1 Salk. 34; The Calisto, Daveis, 29, s. c. Read v. The Hull of a New Brig, 1 Story, 244; Davis v. A New Brig, Gilpin, 473; The Brig Nestor, 1 Sumn. 73; Peyroux v. Howard, 7 Pet. 324; The St. Jago de Cuba, 9 Wheat. 409; The General Smith, 4 Wheat. 438; Buddington v. Stewart, 14 Conn. 404; Davis v. Child, Daveis, 71; The Sch. Marion, 1 Story, 68; Leland v. The Ship Medora, 2 Woodb. & M. 92, 96.

CHAPTER VI.

OF HYPOTHECATION BY BOTTOMRY.

SECTION I.

OF A BOTTOMRY BOND.

IN some respects this is analogous to the mortgage of a ship, but in others it is wholly different. The questions which arise from the bottomry of a vessel are, in this country, frequently settled in admiralty, and some of them must be so; and it is to be regretted, perhaps, that the principles of admiralty law are not always, and in all courts, applied to these questions. These principles are, partly from usage and precedent and partly from statutory provision, as we shall hereafter state more fully, those of the civil law. Our common-law mortgage, where the property must pass to the creditor, and it is a matter of indifference whether the possession remains with the debtor or accompanies the property, was, strictly speaking, unknown to the civil law. And it is quite common for our courts to speak of pledging a ship by hypothecation. But this is not accurate. It was of the essence of a pledge (pignus) of the civil law, that the possession of the thing pledged passed to the pledgee, and remained with him; 2 and this rule has been applied and recognized by courts of common law. But in hypothecation the thing hypothecated might remain in the possession of the The creditor might acquire neither the property nor the

owner.

The contract of bottomry is so called because the keel or bottom of the ship is pledged, a part being figuratively used for the whole. The Atlas, 2 Hagg. Adm. 48, 53; Scarborough v. Lyrus, Latch, 252, Noy, 95.

2 Justinian, Inst. Lib. 4, tit. 6, § 7; Dig. Lib. 13, tit. 7, l. 35; Vinnius ad Inst. Lib. 4, tit. 6, § 7, p. 800; Domat's Civil Law, by Strahan, § 1657, Cushing's ed. vol. 1, p. 648; The Brig Nestor, 1 Sumner, 73, 81.

3 Ryall v. Rolle, 1 Atk. 165; Reeves v. Capper, 5 Bing. N. C. 136; Homes v. Crane, 2 Pick. 607; Cortelyou v. Lansing, 2 Caines Cas. 200; Brownell v Hawkins, 4 Barb. 491.