ment of the ship, but in respect to the means of employing her. His power relates to the carriage of the goods, and the supplies requisite for the ship, and he can bind the owners personally as to the repairs and necessaries for the ship; and this was equally the rule in the Roman law. But the supplies must appear to be reasonable, or the money advanced for the purchase of them to have been wanting, and there must be nothing in the case to repel the ordinary presumption that the master acted under the authority of the owners. (b) If the moneys be advanced to the master while abroad, it will be incumbent on the creditor, if he means to charge the owner, to show the apparent or presumed necessity of the repairs or supplies for which the money was advanced; and this strictness, requisite to the exercise of the master's authority, arises from the facility of misapplication, and the temptation to abuse, to which the power is incident. But if the money was fairly and regularly lent to supply the necessities of the ship, the misapplication of it by the master will not affect the lender's claim upon the owner. This is equally the language of the civil law, and of all the foreign civilians. (c) The great case of Cary v. White, which underwent much discussion, established the principle of the personal responsibility of the owners, provided the creditor could show the actual existence of the necessity of those things which gave rise to his demand; and this doctrine is considered to be equally *164 well established in the jurisprudence of this country. (a) Under the French ordinance of 1681, the master might hypoth * (b) Dig. 14. 1. [§§] 8, 10, 11; Speerman v. Degrave, 2 Vern. 643; Samsun v. Braggington, 1 Ves. 443; Ross v. The Ship Active, 2 Wash. 226; Abbott on Shipping, 5th Amer. ed. 1846, 169; Webster v. Seekamp, 4 B. & Ald. 352; The Ship Fortitude, 3 Sumner, 228; The Law Reporter, i. [124.] But it is an established principle that the authority of the master as to the employment of the ship, or repairing the ship, or supplying the ship with provisions, abroad as well as at home, is limited by the express or implied authority of the laws of his own country, or the usage of trade, or the business of the ship, or the instructions of the owner, and he cannot bind the ship or owner beyond these limits. Story, J., Pope v. Nickerson, 8 Story, 477, 480. Judge Story, in this case, after citing and reasoning on the foreign authorities, arrives at the conclusion that the master can make no contract in a foreign country which shall bind the owners of a ship, except as to what they expressly authorize, or the general law of his own country has recognized, and that then it will bind them no further than that law binds them, whether it be in personam or in rem. (c) Dig. 14. 1. 9; Loccenius, lib. 2, c. 6, n. 12; 2 Emerig. 440; Boulay-Paty, Cours de Droit Com. i. 119; Roccus, de Navibus, not. 23, 24. See, infra, 171, 172, n. (a) 1 Bro. P. C. 284, ed. 1784; s. c. Abbott on Shipping, 5th Am. ed. 1846, 178; ecate the ship and freight, and sell the cargo to raise moneys for the necessities of the ship in the course of the voyage, but he could not charge the owners personally.1 He could only bind Rocher v. Busher, 1 Starkie, 27; Wainwright v. Crawford, 4 Dallas, 225; Milward r. Hallett, 2 Caines, 77; James v. Bixby, 11 Mass. 34; The Jane, 1 Dods. 461; The Ship Fortitude, 3 Sumner, 228; The Law Reporter, i. 124. Good faith and an apparent necessity, under the exercise of the judgment at the time, are sufficient to justify the bottomry loan. This mitigated necessity was allowed by Mr. Justice Story in the case last cited, after great research, to be sufficient. 1 Power of the Master. (a) Agency. It has already been intimated that under our admiralty law the master may bind the vessel in some cases where he could not have bound the general owners; The Freeman v. Buckingham, 18 How. 182, 189, and other cases, ante, 138, n. 1, qualifying the language of some English cases; The City of New York, 3 Blatchf. 187; Fox v. Holt, 36 Conn. 558, 572. See also the act of March 3, 1851, ch. 43, 9 U. S. St. at L. 636, § 5, ad finem. But the power of the master to bind his owners personally has been shown to be only a branch of the general law of agency. 138, n. 1. See 172, n. 1. (b) Law of the Flag. The flag of the ship is thought to be notice to all the world that the master's authority is that conferred by the law of that flag. Post, 174, n. 1. That law governs, as between the parties to a contract of affreightment, in respect of sea damage and its incidents, unless the contract provides otherwise. Lloyd v. Guibert, 6 Best & S. 100, 117, 142; L. R. 1 Q. B. 115, citing 163, note (b), and approving Pope v. Nickerson. See 217, n. (e). But compare The Hamburg, infra. The same principles were applied to the case of a bottomry bond given under peculiar circumstances to raise money to pay for necessary supplies. The Karnak, L. R. 2 P. C. 505, affirming L. R. 2 Ad. & Ec. 289. See, further, The Bahia, Brown. & Lush. 292; 11 Jur. N. s. 90. Ante, ii. 459, n. 1. In The Hamburg, 2 Moore, F. C. N. s. 289, Brown. & Lush. 253, the validity of a bottomry bond on a foreign ship, freight, and English cargo, and payable in England, was said to be determined, so far as the cargo was concerned, not by the law of the ship or of the port where the bond was given, but by the general maritime law as administered in England. This was explained by Willes, J., in giving the judgment of the Exchequer Chamber in Lloyd v. Guibert, as only meaning that the rule of evidence by which the necessity of the bond was to be shown was to be determined by the lex fori. But see The Patria, L. R. 3 Ad. & Ec. 436, 461. (c) As to Necessary Supplies. When a material man asserts a claim against the owners only, the necessity of repairs need not be shown affirmatively, and in any case a material man is not held to the same diligence in inquiry concerning the necessity of them as the lender on bottomry. The Grapeshot, 9 Wall. 129, 136, 140; post, 172, n. 1. Contra, Ford v. Crocker, 48 Barb. 142; Whitten v. Tisdale, 48 Me. 451. Even if a lien upon the vessel is asserted by an admiralty proceeding in rem, the presumption is that the ship, as well as master and owner, is liable, and that credit to the vessel was necessary, when it appears that the repairs and supplies were ordered by the master, and that they were necessary for the ship when lying in port, or to fit her for an intended voyage, unless it is shown that the master had funds, or that the owners had sufficient credit, and that the furnisher or lender knew it, or knew other facts sufficient to put him on inquiry. The their property under his charge; and the new code of commerce has followed the same regulation. It declares, that the owner is civilly responsible for the acts of the master, in whatever relates to the vessel and the voyage, but the responsibility ceases on the abandonment of the vessel and freight. The power of the master is limited to raise money for the necessities of the voyage, by bor rowing on bottomry, or pledging, or selling goods to the amount of the sum wanted. (b) The French civilians are zealous in the vindication of the equity and wisdom of their law, which, on abandonment of the ship and freight, discharges the owners as to the contracts, as well as to the defaults of the master. Emerigon has bestowed an elaborate discussion on the point; and this was equally the maritime law of the middle ages. (c) The law on this (b) Ord. liv. 2, tit. 8, Des Propriétaires, art. 2; Code de Commerce, art. 216, 234. (c) Code, art. 216; Emerigon, Cont. a la Grosse, c. 4, sec. 11; Boulay-Paty, i. 272-278. Lulu, 10 Wall. 192, 203; The Kalorama, ib. 204; The Grapeshot, sup., qualifying the language of Thomas v. Osborn, 19 How. 22; Pratt v. Read, ib. 359. See The Washington Irving, 2 Benedict, 318; The Sarah Starr, 1 Sprague, 453; The A. R. Dunlap, cited 4 Am. Law Rev. 673; The Perla, Swabey, 353; 4 Jur. N. s. 741. The necessity for the supplies is proved where such circumstances of exigency are shown as would induce a prudent owner, if present, to order them, or to provide funds for the cost of them on the security of the ship. The Lulu, 10 Wall. 192, 201; The Grapeshot, sup.; post, 172, n. 1. See Bliss v. Ropes, 9 Allen, 339; Negus v. Simpson, 99 Mass. 388; Whitten v. Tisdale, 43 Me. 451. Indeed, it is said, 9 Wall. 141, that the necessity for them is proved by the master's ordering them on the credit of the ship, in favor of the material man, or of the ordinary lender of money, to meet the wants of the ship, who acts in good faith. Compare 172, n. 1, as to bottomry. Smith, 7 Wall. 646, 651; Hill v. Steamer Golden Gate, Newb. Adm. 308; Donnell v. The Starlight, 103 Mass. 227, 231; compare Weaver v. The S. G. Owens, 1 Wall, Jr. 359, 366, with Thomas v. Osborn, 19 How. 22, 29) are responsible for necessary supplies furnished on the order of the captain, unless it should appear that they were so furnished exclusively on his credit. Provost v. Patchin, 5 Seld. 235; Glading v. George, 3 Grant's Cases, 290; Winsor v. Maddock, 64 Penn. St. 231. Contra, Dyer v. Snow, 47 Me. 254. And it is laid down by the Supreme Court of the United States that although the presence of the owner in a foreign port (i.e. of another state than that to which the vessel belongs; The Lulu, 10 Wall. 192, 200; ib. 213; Negus v. Simpson, 99 Mass. 388) defeats the implied authority of the master, it would not destroy such credit as is necessary to furnish food to the mariners, and save the vessel and cargo from the perils of the seas. The Kalorama, 10 Wall. 204, 214. See The Guy, 9 Wall. 758; 5 Blatchf. 496; 1 Ben. 112. As to master's power to give a bot tomry bond, see 172, n. 1. subject is the same in Holland as in France; (d) and the learned Grotius, in a work where we should hardly have expected to find such a municipal provision, (e) condemns the rule in the Roman law making part owners personally bound, in solido, for these pecuniary contracts of the master, as very improperly introduced, and as being equally contrary to natural equity and public utility. * 165 *Sir William Scott, in the case of the Gratitudine, (a) doubts whether the master has authority, even in a case of consummate distress, and in a foreign port, to bind the owners beyond the value of the ship and freight. But he admits, in that case, after an admirable discussion of the principles and authorities in the marine law on the subject, that the master has power, to hypothecate the cargo in a foreign port, in a case of severe necessity, for the repairs of the ship, and that the Court of Admiralty would enforce the lien. However, from the cases already referred to, it would seem to be settled in the English and American law, that the owner may be personally bound by the act of the master, in respect to the repairs and supplies necessary for the ship while abroad, and without other means to procure them; and if the owner be personally bound, it must be, as it was in the Roman law, to the extent of the requisite advances. Emerigon, while he admitted that the master might hypothecate the ship and sell the cargo, to raise money to meet the necessities of the ship, denied that he could bind the owners personally by a bill of exchange drawn on them for the moneys raised. But Valin held otherwise; and Boulay-Paty is of opinion that the new code gives the captain a discretion on this point, and he concurs with Valin and the ancient nautical legislation. (b) (a) Van Leeuwen's Comm. on the Dutch Law, b. 4, c. 2, sec. 9. (e) Grot. de Jure Belli et Pacis, b. 2, c. 11, sec. 13. (a) 3 C. Rob. 240, 274. (b) 2 Emerigon, 458; Valin, Comm. tit. du Capitaine, art. 19; Boulay-Paty, ii. 73, 74. There is a difference in the foreign ordinances and among the foreign jurists on the question whether the owners of the goods sold during the voyage, for the necessaries of the ship, when the ship subsequently perishes in the voyage, by reason of which all remedy upon the ship is gone, have a remedy against the master or owners of the ship personally. Mr. Justice Story, in Pope v. Nickerson, 3 Story, 493, 494, concludes, that in justice the owners ought to be personally bound for the contracts of the master, not exceeding their interest in the ship and freight. (4) Lien in England for Wages and Expenditures. It has been a question of some doubt, and even contrariety of opinion in the books, whether the master had a lien on the ship or freight for his wages, supplies, or advances on account of the ship, either at home or abroad. But the question appears to be now clearly and definitely settled in England, that the master contracts upon the credit of the owners, and not of the ship, and he has no lien on the ship, freight, or cargo, for any debt of his own, as for wages, or stores furnished, or repairs done at his expense, either at home or on the voyage. The principle was set- *166 tled by Lord Mansfield, in the case of Wilkins v. Carmichael, (a) against the master's claim to a lien on the ship for wages, or money expended for stores, or repairs done in England, and it was there shown to have been the previous law and usage. (b) It was afterwards solemnly adjudged, in Hussey v. Christie, (c) that the master had no lien on the ship for money expended, or debts incurred, for repairs made to it on the voyage; and in Smith v. Plummer, (d) it was decided by equal authority, that the master had no lien on the freight for his wages or disbursements on account of the ship during the voyage, or for the premiums paid by him abroad for the purpose of procuring the cargo. The captain is distinguished from all other persons belonging to the ship, and he is considered as contracting personally with the owner, while the mate and mariners contract with the master on the credit of the ship. The rule has its foundation in policy and the benefit of navigation, and it would be a great inconvenience, if, on the change of captain for misbehavior, or any other reason, he would be entitled to keep possession of the ship until he was paid, or to enforce the lien while abroad, and compel a sacrifice of the ship. (e) Sir William Scott, in the case of the Favorite, (f) observed, that it had been repeatedly decided, that the master could not sue in the admiralty for his wages, because he stood on the security of (a) Doug. 101. (b) Ragg v. King, Str. 858; Read v. Chapman, ib. 937. (c) 9 East, 426. Contra, Watkinson v. Bernardiston, 2 P. Wms. 367, and Lord Eldon's opinion; Abbott on Shipping, 5th Am. ed. Boston, 1846, 185; but see infra, 169, 171. (d) 1 B. & Ald. 575. See, also, to the same point, Atkinson v. Cotesworth, 5 Dowl. & Ry. 552; [Gibson v. Ingo, 6 Hare, 112, 122.] (e) Lord Mansfield, in Wilkins v. Carmichael, Doug. 105. (f) 2 C. Rob. 232. VOL. III. 15 [225] |