Hubbell v. Denison & Buckley, 20 Wend. 181

Hubbell v. Denison & Buckley

20 Wend. 181 | N.Y. Sup. Ct. | 1838

By the Court, Co wen, J.

The report is well enough provided there was a lien. The statute upon which the action was brought, gives this remedy only in case of lien, and declares when that shall attach. It is thus : tc Whenever a debt amounting to fifty dollars or upwards, shall be contracted by the master, owner, agent or consignee of any ship or vessel within this state, for either of the following purposes : 1. On account of any work done, or materials or articles furnished in this state, for or towards the building, repairing, fitting, furnishing, or equipping such ship or vessel. 2. For such provisions, &c. as may be fit, &c. 3. On account of the wharfage, &c. such debt shall be a lien on such ship or vessel, her tackle, &c., and shall be preferred to all other liens thereon, except mariner’s wages.’’

The declaration avers that the debt was contracted by S. A. Hubbell, the master, builder, owner, and contractor for building the vessel. The proof is, that he was not owner; for he had assigned all his interest, and stood in the simple relation of a man hired to build. On its being objected that the debt was not contracted by either the owner, agent, master or consignee, within the statute, the referees overruled the objection, and proceeded on the ground that the labor was done and materials found, under the direction or by the consent of the builder, who, for the time being, was the master.

Clearly he was not agent; for he had no power to bind the owners, but only himself personally. He is still farther removed from the character of consignee, which neither the declaration nor proof sought to fix upon him. Was he the master of the vessel within the sense of the statute ? What is a master ? . “ He is,” says Hobart, C. J. “ the person entrusted with the ship and voyageand may as such implicitly raise certain liens upon *183the ship. He may even impawn the ship in case of extremities, for money to relieve against her distress, as the want of repairs, victuals, &c. Bridgeman's case, Hob. 11, 12. Moor. 918, S. C. He is not only one, says Molly, who for his knowledge in navigation, fidelity and discretion, hath the government of the ship committed to his care and management • but the law looks upon him as an officer, who must render and give an account of the whole charge, &c. Mol. De Jur. Mar. B. II. ch. 2, § 1. " Few individuals,” says Jacobsen, “ in any relation, have so extended a mandatum prcesumptum conferred upon them, as ship-masters.” Jacobs. Sea Laws, B. I. ch. 1, p. 82, of Balt. ed. of 1818. And maritime law permits the owner to dismiss the master at any time, even if he is part owner. The agreement between the owner and master is, that the latter will faithfully discharge every duty incumbent on him, render a satisfactory account, Stc. and that he shall be secured in all his advances that do not exceed the value of the vessel, &c. Id. p. 87. " The master of the vessel,” says Roccus, “ is he to whom the care of the vessel is entirely confided. To his charge and direction the whole of the ship and every thing that belongs to her, and the mariners, are committed.” Ing. Roc. 17, note 3. Thus the business of the master, as it has always been understood both by the civil and common law, is to command the ship on her voyage, under an appointment from the owners, in the discharge of which duty he possesses an extensive implied power as agent to bind the owners, himself being bound to the strictest responsibility. The statute might well allow such an officer to incur liens, without intending that a like authority should be vested in a mere master-builder. There is no analogy in their powers. The builder in the case at bar, did not possess even the narrowest agency, express or implied, to hind the owners. He was but a contractor, the plaintiff being one of his hands, who is confined, to a remedy against his employer, personally. The builder is neither within the words, nor the reason, nor equity of the act.

The report of the referees must therefore, be set aside.