Howard v. Odell
83 Mass. 85
| Mass. | 1861
Bigelow, C. J.

Whatever doubts may formerly have been entertained as to the liability of a mortgagee of a vessel, not having her in his possession or control, for supplies and repairs furnished on the order or at the request of the master or mortgagor, it is now well settled, both in this country and in England, that no such liability exists. Nor does the fact, that the register or enrolment of the vessel stands in the name of the mortgagee, and that his apparent title on the record is by a conveyance absolute in iorm, of itself operate to render him liable for debts contracted for supplies and repairs. The real question in all such cases is, with whom was the contract m? V, *87and was the person who made it authorized to bind the mortgagee ? If the mortgagee was not in possession of the vessel, and did not receive the benefit of her earnings, or exercise any control over her, but only held his title as collateral security for his debt, then it is very clear that neither the master nor the mortgagor could claim to act as his agent, or bind him by their contracts. In such case there is no authority, either express o implied, by which they can undertake to act in his behalf. Doubtless the mortgagee may, by his acts, hold himself out as the real owner of the vessel in such way as to lead persons to believe that the master or mortgagor is his agent, authorized to.make contracts concerning the vessel. He would then be bound by them, under the ordinary rule of law regulating the relation of principal and agent. Such was the case in Tucker v. Buffington, 15 Mass. 477, where the mortgagees not only had the enrolment of the vessel taken out in their names as owners, but also substituted Boston, their own place of residence, on the stern of the vessel, instead of Portland, where the mortgagors resided. The court, in stating their reasons for holding the mortgagees liable in that case, give great weight to this circumstance. But this court has since decided, in Brooks v. Bondsey, 17 Pick. 441, that a mortgagee of a vessel is not liable for supplies, if the vessel is not in his possession or employment, although she was enrolled in his name as absolute owner. Indeed it would be giving altogether too much weight to the registry and enrolment of vessels to hold, that persons whose names appeared therein as owners were thereby made liable for repairs and supplies. Every one conversant with shipping and commercial dealings knows that vessels are often employed under charter-parties, by which even the real owners are exempted from all charges incurred in their management and navigation. Whenever the charterer is by the terms of his contract deemed to be owner pro hac vice, no liability for supplies or repairs attaches to the actual owner of the vessel in whom- the legal title is vested. It is therefore well understood among all persons engaged in the business of making repairs or furnishing supplies that their right to recover payment therefor does not depend on *88the registry or enrolment, but on the right and authority of the person with whom they deal to act as agent for the owners, and to bind them by his contracts. The real transaction between the parties is to be looked at, in order to ascertain whether that which appears by the registry to be a legal title in a particular person is or is not such an ownership as will authorize the person making the contract to act as agent. An equitable title in one person, having the control and possession of the vessel, may well consist with a documentary title at the custom-house in another person. Nor does it make any difference that a part of the vessel only is registered or enrolled in the name of a person. This gives the other part owner or the master no authority to pledge his credit for repairs or supplies, if he is in fact only mortgagee of part of the vessel. It is still a question of agency, to be settled by an inquiry into the real nature of the title. Winslow v. Tarbox, 18 Maine, 132. Cutler v. Thurlo, 20 Maine, 213. Myers v. Willis, 17 C. B. 77. S. C. 18 C. B. 886. Brodie v. Howard, 17 C. B. 109. Hackwood v. Lyall, 17 C. B. 124. Mitcheson v. Oliver, 5 El. & Bl. 419.

In the present case, there is no proof of any authority in the master or other part owner to bind the defendant by any contract for supplies or repairs. He never took possession of the vessel, or exercised any control over her, or received any benefit from her earnings. He held the vessel only as security for his debt, and distinctly repudiated all right to manage or control her, and prohibited the other part owner from incurring any liability on his account. Under such circumstances, the plaintiff had no right to rely on the credit of the defendant. He could not, by merely looking at the register, assume that the defendant was liable, and on that ground charge him with the supplies. This would be to allow the plaintiff, at his election, to give credit to the defendant and make him his debtor, without any regard to the intentions of the defendant, or any consideration of the legal effect of his relation to the other part owner and to the master of the vessel, by reason of his holding part of the vessel as security for his debt. It is a fallacious and incorrect mode of stating the question to ask on whose credit the goods were supplied. The true *89question is, Who was the contracting party ? And, to obtain a correct answer to this inquiry, it is necessary to ascertain whether the goods were bought by an authorized agent of the defendant. Mitcheson v. Oliver, ubi supra.

It was urged by the counsel for the plaintiff that paroi evidence was inadmissible to show that the bill of sale absolute in form was in fact intended as a mortgage, and was held by the defendant only as collateral security for a debt. But this objection proceeds on a misapprehension of the purpose for which the evidence was offered. It was not intended to alter or vary the legal effect of the instrument, as between the parties to it or those claiming derivatively under it; but only to show the real nature of the transaction between the parties, as bearing on the question of the authority of the other part owner to act as agent of the defendant in purchasing supplies for the vessel. In this view it was clearly competent.

Judgment for the defendant Kidder.