(4) Of part owners.

The several part owners of a ship are tenants in common. Each has his distinct, though undivided interest; and when one of them is appointed to manage the concerns of the ship for the common benefit, he is termed the ship's husband. Valin strongly recommends the utility of these associations of part owners, in the business of navigation and maritime en terprises, in order to unite the wisdom of joint counsels, as well as to divide the risks and losses incident to a very ex tended maritime commerce, which is exposed to so many hazards and revolutions: tua omnia uni nunquam navi credito." The marine law of England, respecting part owners of vessels, is distingutshed for the wisdom and equity of its provisions, and it has an undoubted pre-eminence over the common law doctrine concerning a tenancy in common in chattels. If there be no certain agreement among themselves, respecting the employment of the ship, the Court of Admiralty, under its long established and salutary jurisdiction, authorizes a majority in value of the part owners, to employ the ship upon any probable adventure, and, at the same time, takes care to secure the interest of the dissenting minority. The admiralty practice is dictated by the plain

places very material checks upon the transfer of ships; for, in order to bar the rights and claims of third persons, it is requisite that the vessel make one voyage at sea at the risk of the purchaser, and without opposition from the creditors of the vendor; otherwise their claims are preferred to the title of the purchaser. If the vessel be sold while on a voyage, that voyage is not computed, and it requires a new voyage subsequent to such sale, to bar the rights of privileged creditors. This privilege, under the French ordinance of 1681, applied to creditors of every description existing at the time of the sale; but under the new code of commerce, it would rather seem to be confined to the specified class of privileged creditors. Ord. b. 2, tit. 10. Des Navires, art. 2 and 3, and Valin's Com. ibid. tom. 1. 602. Code de Com. art. 193, 194. 196. Boulay Paty, Cours de Droit Com. tom. 1. 168. 170.

a Valin's Com. tom. 1. 584.

reason that "ships were made to plough the ocean, and not to rot by the wall." Ownership in a ship is, ordinarily, not like the case of joint concern, or partnership; nor does the English law, like some of the ordinances of other countries, give power to the majority in value to control, in their discretion, the whole concern. The Court of Admiralty takes a stipulation from the majority, in a sum equal to the value of the shares of the minority, either to bring back and restore the ship, or pay the minority the value of their shares. In that case, the ship sails wholly at the charge and risk, and for the benefit, of the majority. This security the minority obtain upon a warrant issued upon their application to arrest the ship. This is the only safe proceeding to the minority; for if the ship be sent to sea by the majority without this securay, and she be lost without any tortious act in the majority, the minority have no remedy in law or equity. If the minority have possession of the ship, and refuse to employ her, the majority, on a similar warrant, may obtain possession, and send the ship to sea, on giving the like security. The jurisdiction of the admiralty extends to the taking a vessel from a wrong doer, and delivering her over to the rightful owner; and this is a most useful part of the jurisdiction of the court." The Court of Chancery exercises this sort of equitable jurisdiction in cases where the admiralty cannot, as where the shares are not ascertained.

If the part owners be equally divided in opinion in respect

a In the same way the fir tree, though originally rooted in the mountain soil, was, according to the beautiful prosopopoeia of the poet, destined to witness the perils of the deep-casus abies visura marinos.

b Graves v. Sawcer, T. Raym. Rep. 15. Strelly v. Winson, 1 Vern. Rep. 297. Anon. 2 Ch. Cas. 36. Ouston v. Hebden, 1 Wils. Rep. 101. Lord Ch. J. Abboit on Shipping, part 1, ch. 3. In the matter of Blanshard, 2 Barnw. & Cress. 244. In Willings v. Blight, 2 Pelers' Adm. Rep. 288, the general jurisdiction of the admiralty, as stated, seemed to have been assumed. See also the Apollo, 1 Hag. Adm. Rep. 306. e Hally v. Goodson, 2 Merivale's Rep. 77.

to the employment of the ship, either party may obtain the like security from the other seeking to employ her." It is said, that the Court of Admiralty has no jurisdiction to compel an obstinate part owner to sell his share; and yet it was considered, in the District Court of Pennsylvania, as still an unsettled point, whether the court might not compel a sale of the shares of the minority who unreasonably refused to act. If a part owner sells, he can only sell his undivided right. The interest of part owners is so far distinct, that one of them cannot dispose of the share of another; and this may be considered as a settled principle. The language in the Court of Errors of New-York, in the case which has been already mentioned, does not lead to an opposite conclusion."

That

a Abbott on Shipping, ub. sup. sec. 6.

b Ouston v. Hebden, ub. sup. In the case of The Apollo, Lord Stowell vindicated the legality of the initiatory measure of arresting a ship, on the application of a part owner, who dissents from her intended employment, and compelling security for the safe return of the vessel, or for the estimated value of his share. And while he was extremely cautious of enlarging his jurisdiction on this subject, he decreed immediate payment of the entire amount of the stipulated sum, upon the loss of the ship.

c Willings v. Blight, ub. sup. The remedy for the dissenting owners, in Scotland, is to compel a sale, or that the other owners shall give or take at a price put. Mr. Bell intimates, that the English method is less harsh and perilous. Bell's Commentaries on the Laws of Scotland, vol. i. 503.

d It was so declared by Mr. Abbott in his elementary work on shipping, p. 4, and Lord Ch. J. Dallas observed, in 8 Taunt. Rep. 774, that one part owner of a ship could not bind the rest, as in partnership

cases.

e See ante, p. 40. The ordinance of Rotterdam, of 1721, gave the owners of above half the ship the power to sell the same for the general account, as well as to freight her and outfit her at the common expense, and against the consent of the minority. (Art. 171, 172. 2 Magens on Insurance, 108.) On the other hand, the French ordinance of 1681, prohibited one part owner of a ship from forcing his companions to a sale, except in case of equality of opinions upon the undertaking of a VOL. III.

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case only admitted, that a ship might be held, not only by part owners, as tenants in common, but in partnership, by partners, as any other chattel. And though a part owner can sell only his share, yet one partner can dispose of the entire subject; and the case of vessels does not form an exception, when they are owned by a partnership, in the commercial sense, and so it has frequently been held."

The cases recognise the clear and settled distinction between part owners and partners. Part ownership is but a tenancy in common, and a person who has only a part interest in a ship, is generally a part owner, and not a partner. As part owner he has only a disposing power over his own interest in the ship, and he can convey no greater title. But there may be a partnership, as well as a co-tenancy, in a vessel; and, in that case, one part owner, in the character of

voyage. Liv. 2, tit. 8, Des Propriétaires, art. 6. Valin, ibid. vindicates this interdiction as conducive to the benefit of trade, though he admits it has its inconveniences, and that such is the destiny of all human laws.

a Wright v. Hunter, 1 East's Rep. 20. Lamb v. Durant, 12 Mass. Rep. 54. In the case of Davis & Brooks v. The Brig Seneca, decided in the Circuit Court of the United States for the District of Pennsylvania, in May, 1829, on appeal from the District Court, the part owners were equally divided in opinion as to the employment of the vessel. One party, having equal interest, wished to employ her on his own terms, and by his own master, and the other party claimed the same right, and neither would recede. The District Court decided that it had no power to award a sale of the vessel. The Circuit Court reversed that decision, and decreed a sale. Judge Washington admitted that the English admiralty had no such jurisdiction, but he went upon broader ground, and held that the court had jurisdiction of all cases of a maritime nature, and was governed by the general maritime law of nations, and was not confined to that of England. He considered the 5th and 6th articles of the marine ordinance of Louis XIV. (liv. 2, tit. 8, Des Propriétaires) and Valin's Commentary thereon, (tom. 1. 585,) to be evidence of the marine law of nations, that the court could award a sale of the ship when the part owners were equally divided, as in that case. The articles in the ordinance were agreeable to the Roman law.

partner, may sell the whole vessel; and he has such an implied authority over the whole partnership effects, as we have already seen. The vendee, in a case free from fraud, will have an indefeasible title to the whole ship. When a person is to be considered as a part owner, or as a partner, in a ship, depends upon circumstances. The former is the general relation between ship owners, and the latter the exception, and requires to be specially shown. But as the law presumes, that the common possessors of a valuable chattel will and desire whatever is necessary to the preservation and profitable employment of the common property, part owners, on the spot, have an implied authority from the absent part owners, to order for the common concern whatever is necessary for the preservation and proper employment of the ship. They are analagous to partners, and liable as such for necessary repairs and stores ordered by one of themselves; and this is the principle and limit of the liability of part owners."

Whether part owners who render their companions liable for supplies furnished, or repairs made upon a ship, are to have their accounts taken, and the assets distributed, as if the ship was partnership property, or as if they had each a distinct separate interest in the vessel as tenants in common, depends, as we have already seen, upon the fact, whether the ship was held by then, in the particular case, as part owners or as partners. The law of Holland considered it to be prejudicial to trade, to carry the responsibility of part owners to the extent of the English law; and the rule there is, that each part owner shall be answerable in relation to the ship no further than to the extent of his share. The English and

a Holt on Shipping, Int. p. 53, and vol. i. p. 367–369. Wright v. Hunter, 1 East's Rep. 20. Scottin v. Stanley, 1 Dallas' Rep. 129.

b Van Leeuwen's Com. on the Roman Dutch Law, b. 4, ch. 2, sec. 9. Vinnius, not. in Com. Peckii, tit. De Exerc. 155. The latter says, it is neither agreeable to natural equity, nor public utility, that each part owner should be bound in solido, or beyond his share.