hypothecation, to prove the actual existence of the necessity, or of an apparent necessity, of those things which gave rise to his demand, and which are reasonably fit and proper for the ship, or for the voyage, under the circumstances of the case; and he must have acted, after he has used reasonable diligence, with good faith in his inquiries, though he need not see to the actual and bona fide application of the money. (b) The loan must not exceed the necessity, and it must be made, and under circumstances to afford relief. (c) This power of the master to borrow money on bottomry, and hypothecate the ship for the repayment, may exist as well at the port of destination as at any other foreign port, when the necessity for the exercise of the right becomes manifest. (d) A doubt has been raised whether an hypothecation would be valid when made to the consignee of the owner. The power in that instance would be very liable to abuse and collusion, and the averment of the necessity and integrity of the transaction ought to undergo a severer scrutiny, but the weight of authority seems to be, that, under circumstances, a consignee may take a bottomry bond. (e)

(b) The Ship Fortitude, C. C. U. S. for Mass., August, 1838, [3 Sumner, 228;] Story on Agency, § 122; [ante, 164, n. 1.]

(c) Rucher v. Conyngham, Peters Adm. 295; Cupisino v. Perez, 2 Dallas, 194; The Aurora, 1 Wheat. 96; Rocher v. Busher, 1 Stark. 27; Roccus, de Navibus, not. 23. (d) Reade v. Commercial Insurance Company, 3 Johns. 352.

(e) See Rucher v. Conyngham, Peters Adm. 307; and Abbott on Shipping, 5th Am. ed. Boston, 1846, 207. See infra, 361, to the S. P. to that point. The power given to the master to raise money while abroad, for the necessities of the ship, is the most dangerous form in which his authority can be exerted, and all the foreign authorities

necessity of repairs. He also lays it down that the bottomry bondholder must give evidence of actual necessity for repairs and supplies; "and if the fact of necessity be left unproved, evidence is also required of due inquiry, and of reasonable grounds of belief that the necessity was real and exigent." See The Royal Arch, Swabey, 269, 275.

When a debt has already been contracted for such supplies, which constitutes a lien on the vessel or cargo, capable of immediate enforcement in a foreign court, the master may raise money to pay it by pledging the credit of the owners, or by a bottomry bond. Stearns v. Doe, 12 Gray,

482, 487; The Yuba, 4 Blatchf. 352; The Karnak, L. R. 2 P. C. 505, 512, where the necessity which will authorize an hy. pothecation by the master is described; ante, 164, n. 1. See also The Albert Crosby, L. R. 8 Ad. & Ec. 37. It seems that the master can pledge the personal credit of the owners, and also give a bottomry bond as collateral security, provided the two things are done by separate and distinct instruments. Stainbank v. Shepard, 13 C. B. 418, 443; Willis v. Palmer, 7 C. B. N. s. 340, 360; Bristow v. Whitmore, 4 De G. & J. 325, 334. But compare The Atlantic, Newb 514; post, 358.

(7) Power to sell Ship or Cargo. The master in the *173 course of the voyage, and when it becomes necessary, may also sell part of the cargo, to enable him to carry on the residue; and he may hypothecate the whole of it, as well as the ship and freight, for the attainment of the same object. (a) The law does not fix any aliquot part or amount of cargo which the master may sell 1; nor could any restraint of that kind be safely imposed, The power must, generally speaking, be adequate to the occasion. The authority of the master must necessarily increase in proportion to the difficulties which he has to encounter. There is this limitation only to the exercise of the power, that it cannot extend to the entire cargo; for it cannot be presumed to be for the interest of the shipper, that the whole should be sold, to enable the ship to proceed empty to her port of destination. The hypothecation of the whole may, however, be for the benefit of the whole, because it may enable the whole to be conveyed to the proper market. (b) This power of the master to pledge have recommended and enforced the same precautions, and which have been universally adopted. (Casaregis, Disc. 71; Roccus, de Navibus, n. 23; Vinnius ad Peck.) In Boyle v. Adam, in the Scotch Admiralty, in 1801, the rule that the lender, on an hypothecation bond, was not bound to see to the application of the money, was qualified in a case where the expenditure was enormous, and the master a weak man. Bell's Comm. i. 529, note. The question respecting the lien of the master on the ship, for necessary expenditures, has been extensively litigated and discussed in the English and American courts, as has been already shown; and for a more full view of some of the cases, see Abbott on Shipping, 5th Am. ed. Boston, 1846, 181-192. The American editor of Abbott on Shipping, 5th ed. Boston, 1846, 200-202, has industriously classified the most material cases in the American admiralty courts, on the power of the master to borrow money on bottomry. (1.) It must be in cases of necessity, where he has no other adequate funds in his power, and can obtain none upon the personal credit of the owner. (2.) If the necessity existed, and the advances were bona fide made, any subsequent misapplication of them by the master will not vitiate the hypothecation. (3.) There must have been an inability to procure the funds on the personal credit of the owner. (4.) The credit must have been given to the ship as security. (5.) The master cannot give a bottomry bond for antecedent advances, or for other debts due from the owner to his creditor. (6.) The master cannot pledge the ship or freight for his own private interests, or hypothecate the shin for the benefit of the cargo. (7.) The master may hypothecate the ship, although the ship be hired upon charter, and the master has been appointed by the charterers. (8.) The owner is not personally bound by the bottomry bond. (9.) A bottomry bond may be given to pay off a former bottomry bond on the same foreign voyage. (a) Story, J., in Pope v. Nickerson, 3 Story, 491, and the authorities, foreign and domestic, there cited.

(b) The Gratitudine, 3 C. Rob. 240, 263; The United Insurance Company v. Scott, 1 Johns. 115; Freeman v. The East India Company, 5 B. & Ald. 617; Ross v. Ship Active, 2 Wash. 226.

or sell the cargo is only to be exercised at an intermediate port, for the prosecution of the voyage; and if he unduly breaks up the voyage, he cannot sell any part of the cargo for repairs for a new voyage, and the power is entirely gone. (c) In cases of capture by an enemy or pirate, the master may redeem the vessel or cargo by a ransom contract for money, or part of the cargo, and the whole cargo, as well as the ship, will be bound by the contract made under the authority of the necessity of the case. (d) But if the voyage is broken up in the course of it by ungovernable circumstances, the master, in that case, may even sell the ship or cargo, provided it be done in good faith, for the good of all concerned, and in a case of supreme necessity, which *174 sweeps all ordinary rules before it. (e)1 The * merely acting

(c) Watt v. Potter, 2 Mason, 77.

(d) The Gratitudine, 3 C. Rob. 240; Maisonnaire v. Keating, 2 Gallison, 325. See, also, supra, i. 104, 106.

(e) Hayman v. Molton, 5 Esp. 65; Milles v. Fletcher, Doug. 231; Idle v. The Royal Exchange Assurance Company, 8 Taunt. 755; Freeman v. The East India Company, 5 B. & Ald 617; Cannan v. Meaburn, 1 Bing. 243; Robertson v. Clarke, ib. 445; Fanny and Elmira, Edw. Adm. 117; Read v. Bonham, 3 Brod. & B. 147; Soames v. Sugrue, 4 Carr. & P. 276, Tindal, C. J.; Scull v. Briddle, 2 Wash. 150; The Schooner Tilton, 5 Mason, 475, 477; Jordan v. Warren Ins. Co., 1 Story, 342. In the case of The American Insurance Company v. Center, 4 Wend. 45, it was held, that in this country the master's right to sell was more extensive than in England; for here, if there existed a technical total loss, and the master has reason to believe the owner would elect to abandon, he might sell the ship. The English rule is more strict, and it is the duty of the master to repair the vessel, unless there be an actual total loss, or he has no means of repairing, and cannot procure any by the hypothecation of the ship or cargo. The earlier English cases, as well as the foreign ordinances, denied to the master the authority to sell the ship. 1 Sid. 452; 2 Ld. Raym. 934. But though such a power is not given to the master by the general maritime law, yet the modern cases have, in some degree, yielded that power to the master in a case of strong necessity. Abbott on Shipping, 5th Am. ed. Boston, 1846, 10-26. In this last work, in the notes of the learned English and American editors, all the authorities on the question of the power of the master to sell the ship are collected and critically examined. In the cases of Gordon v. The Mass. F. & M. Ins. Co., 2 Pick. 249, and of Hall v. The Franklin Insurance Company, 9 Pick. 466, the strict doctrine of the English law was asserted and maintained. The master's authority to sell the vessel was confined to cases of extreme necessity, and where he acts with the most perfect good faith for the interest of the owner, and when he has no opportunity to consult the owner or insurer, and the necessity leaves him no alternative. This strict rule is the one best supported by reason and authority. See, also, to the same point, the case of the Brig Sarah Ann, 2 Sumner, 206, where it was held, that in a case of urgent necessity, the master had a right to sell the vessel, as well on a home as on a foreign shore, and whether the owner's residence be near or at a distance. Also the cases of The New England Insurance Company v. The Sarah Ann, 13 Peters, 387; and of

1 172, n. 1; 174, n. 1.

in good faith, and for the interest of all concerned, is not sufficient to exempt the sale of goods from the character of a tortious conversion, for which the ship owner and the purchaser are responsible, if the absolute necessity for the sale be not clearly made out. Nor will the sanction of a vice-admiralty court aid the sale when the requisite necessity was wanting. (a)1 All the cases are decided and peremptory, and upon the soundest principles, in the call for that necessity. The master is employed only to navigate the ship; and the sale of it is manifestly beyond his commisRobinson v. Commonwealth Ins. Co., 3 Sumner, 220; and of Hunter v. Parker, 7 M. & W. 322, where the power of the master to sell, in a case of extreme necessity, and acting in good faith, is fully sustained.

(a) Van Omeron v. Dowick, 2 Camp. 42; Morris v. Robinson, 8 B. & C. 196. The French code allows the master to sell the ship in the single case of innavigability; but by the ancient ordinances the prohibition was entire and absolute. The innavigability of the ship ought, however, to be first ascertained and declared by the local magistrate of the place; or, if in a foreign country, by the French consul. Code de Commerce, art. 237; Ord. de la Marine, tit. Du Capitaine, art. 19; Valin's Comm. i. 444; Pardessus, Droit Com. iii. 26; Boulay-Paty, ii. 85.

1 Sale by the Master.-See The Bonita, Lush. 252; 30 L. J. N. s. Adm. 145.

The necessity is a question of fact, to be in each case by the circumstances in which the master is placed, and the perils to which the property is exposed. The cases sustain the strict rules of the text. The Amelie, 6 Wall. 18, 27; s. c. 2 Cliff. 440; The Australia, 13 Moore P. C. 132, 144; Post v. Jones, 19 How. 150; Stephenson v. Piscataqua Ins. Co., 54 Me. 55, 77; Prince v. Ocean Ins. Co., 40 Me. 481; Brightman v. Eddy, 97 Mass. 478. Cases as to cargo are Tronson v. Dent, 8 Moore P. C. 419; Myers v. Baymore, 10 Penn. St. 114. And if it is possible to communicate with the owners without a delay destructive of their interests, it is the master's luty to do so, on the grounds already stated in the case of bottomry, ante, 172, n. 1. The Bonita, Lush. 252, 262; 30 L. J. N. 8. Adm. 145, 151; The Amelie, 6 Wall. 18, 27; Star of Hope, 9 Wall. 203, 237; The Uniao Vencedora, otherwise The Gipsy, 33 L. J. N. 8. Adm. 195; Butler v. Murray, 30 N. Y. 88, 99; Australasian St. N. Co. v. Morse, L. R. 4 P. C. 222, 232.

The authority of the master to make

the sale may perhaps depend on the law of the flag, on the same principle with the cases cited ante, 164, n. 1. But it has been held that a sale of a cargo, valid by the law of the place where it was made, bound the property (in a case where the court below thought the parties concluded by a judgment rendered in that place). Cammell v. Sewell, 5 Hurlst. & N. 728; 3 id. 617. See, however, the remarks of Willes, J., in Lloyd v. Guibert, ante, 164, n. 1. And it has been intimated in an earlier case that the validity of the sale of a ship depends on the general maritime law, a doctrine abandoned in the latest common law cases cited ante, 164, n. 1, so far as it affects them; Segredo, otherwise Eliza Cornish, 17 Jur. 738; 1 Ec. & Ad. (Spinks) 36, criticised also in Cammell v. Sewell, but seemingly adhered to in some admiralty cases. The Patria, L. R. 3 Ad. & Ec. 436, 461.

If the sale is lawful, it devests all liens from the ship and transfers them to the proceeds. The Amelie, 6 Wall. 18; 2 Cliff. 440. But see The Catherine, 15 Jur. 231; 1 Eng. L. & Eq. 679; and ct. Charles Amelia, L. R. 2 Ad. & Ec. 330.

*175

sion, and becomes the unauthorized act of a servant, disposing of property which he was intrusted only to carry and convey. The * master in such a case acts, virtute officii, as master. His agency arises by operation of law, from the necessity of the case, to prevent a total loss of the property, and the law treats him as one capable of selling in his own name, but for the benefit of the owner. He can give a sufficient title in his own name, as being by operation of law substituted owner, pro hac vice. This was the view of the subject taken in the case of the Schooner Tilton, (a) and the doctrine appears to rest on clear and solid principles of law and policy.

When part of the cargo is sold by the master at an intermediate port, to raise money for the necessities of the voyage, the general rule has been to value the goods at the clear price they would have fetched at the port of destination. But in Richardson v. Nourse, (b) the price which the goods actually sold for at the port of necessity was adopted, and the court did not think that such a criterion of value was clearly erroneous in point of law; and with respect to these contracts of hypothecation for necessaries, made by the master in a foreign port, it is the universal understanding and rule, that they are to be made in the absence of the owner, and not at his place of residence, where he may exercise his own judgment. If the liens be created at different periods of the voyage, and the value of the ship be insufficient to discharge them all, the last loan is entitled to priority in payment, as having been the means of saving the ship. The contract does not transfer the property of the ship, but it gives the creditor a privilege or claim upon it, which may be enforced with all the expedition and efficacy of the admiralty process. (c)

(8) Duty to employ a Pilot. It is the duty of the master engaged in a foreign trade to put his ship under the charge of a pilot, both on his outward and homeward voyage, when *176 he is within the usual limits of the pilot's employment. (a) The pilot, while on board, has the exclusive

(a) 5 Mason, 481.

(b) 3 B. & Ald. 237.

(c) Abbott on Shipping, part 2, c. 3, secs. 20, 22; Chase, J., Blaine v. The Ship Charles Carter, 4 Cranch, 328. See infra, 358, s. P.

(a) Law v. Hollingsworth, 7 T. R. 160; The William, 6 C. Rob. 316. But if the master, at a foreign port, attempts to get a pilot, and fails, and then, in the exercise of his best discretion, endeavors to navigate himself into port, and grounds, the underwriter is not discharged, but remains liable for the injury. Phillips v. Headlam,