14 F. Cas. 1142 | D. Me. | 1855
The libelant being the owner of one moiety of the brig Larch, in 1851, with one Fall the owner of the other moiety, it was mutually agreed between them that the libelant should take the brig and employ her on shares, upon the common terms on which vessels are so employed, the owner to keep her in repair, the employer to victual and man her at his own expense, the port charges to be paid one-half by him, as employer, and the other half by the owners, and the net earnings to be divided equally between the owners and the employer. Under this agreement, the libel-ant will be entitled to three-quarters of the earnings, one-half as employer and charterer, and one-quarter as part owner, and Fall to the other quarter. The brig appears to have been successfully employed up to August, 1854, in the coasting trade. She then took out a register and went to Pictou, Nova Scotia, and took in a load of coal for Nantucket. And here commenced a series of misfortunes which have been the occasion of this libel. She was found when loaded to leak considerably, not, however, so much but that she started on her return voyage; but having, unfortunately, got aground, the leak increased to such a degree that she was obliged to transship her cargo, and she returned for repairs. And it was not until after a series of mischances and hardships, continued from October 19, to the latter part of January, that she was able to return to her home port. A particular detail of these misfortunes is unnecessary to a correct understanding of the case, as it is not pretended that they are imputable to any want of skill or prudence on the part of the master, but were purely fortuitous. But one additional fact should be noted, as it may give a material coloring to the legal aspect of the ease. The vessel when she started on her voyage for Pictou was undoubtedly unseaworthy. Her immediately preceding voyage had been to the Southern States for a cargo of lumber, in which she was materially injured in her bottom by worms, but this was unknown by the master and owners. And another fact may be mentioned which quite as materially affects the equitable aspect of the case; that while these repairs were being made, or soon after, Fall sold his moiety to the claimant and insolvent vendee, who will take the vessel with the benefit of all these repairs and leave the libelant practically remediless, or to seek a remedy through doubtful litigation. During this period the libelant was subjected to expense for repairs, wages, and board of the crew, and the loss of his own time, according to the schedule rendered, of $5149.74. It is charged in the libel, that these disasters and losses were occasioned by the unseaworthiness of the vessel when she started on her voyage for Pictou. The libel is brought to enforce a lien on the vessel to answer for damages occasioned by the fault of the vessel.
The demands embraced in the libel are various in their character. The evidence to sustain them has not been produced, and the question in this stage of the case is, whether a libel will lie in the admiralty for any part of them. If it will, the libel ought not to be dismissed, but the cause should proceed and the question be determined hereafter for what part of his claim he has a lien on the ship. The legal relation of the libelant to the ship was of a very complex character. He was master, part owner in possession, and ship’s husband, and charterer of the moiety against which he is seeking satisfaction. And if in any of these relations he has a claim against the ship for any part of his expenditures, this libel may be maintained. His claim in each, has been presented by the counsel in a learned and able argument, and by a thorough and critical examination of the decided eases as well as of the general and acknowledged principles of law. By insisting on his rights in one of these characters, he does not waive those in another; but as part owner in possession, he presents, perhaps, the strongest claim. By the general maritime law, and as it stood in the earliest ages and is now generally received, that he had a right to order these repairs and charge the vessel for them, is beyond controversy. Ernerig. Gontrats a la Grosse, c. 4, §§ 4. 5. The authorities quoted by Emerigon place.it beyond doubt. We have adopted that law with some modifications, but those which will not, I think, exempt a part owner in this case. In Abbot on Shipping (part 1, § 4, p. 105, 5th Am. Ed.l it is said, that one part owner may render his companion liable for the cost of repairs unless this liability is expressly provided against. He is confirmed by Chancellor Kent in his Commentaries. The law, he says, presumes that a part owner in possession is invested with authority, by the other part owners, to order
These authorities apply only to the personal liability of the part owners, and this is a suit in rem. But the libelant was not only part owner; he was ship's husband and master. And it is a principle acknowledged in all our books and too well settled to be brought into controversy, that the contract of the masters in a foreign port for repairs, binds the ship itself. There can be no doubt that the material men and mechanics would have a lien on the vessel. - Though in the Roman law, from which, as is generally supposed, the maritime law adopted these privileged debts, the lenders of money to pay them only are mentioned, yet by a stronger reason the rule will apply to the original furnishers. Emerig. Contrats a la Grosse, ,c. 12, § 4. And as the master advanced this, I can see no reason why he should be placed in a worse situation than a stranger. Besides, by the general maritime law, and as it is received by all the maritime nations of continental Europe, this is the only pledge which the creditor has. The master’s power to bind the owners is confined to the ship and her fruits, and he has none to bind them personally. The Rebecca [Case No. 11,- • G19], Besides, the peculiar nature of these privileged debts is to be taken into account. The creditor, who trusts the thing rather than the person, is considered as parting with his property only on condition that the price is paid. Domat,' liv. 3, tit. 1, § 5, No. 6. He has therefore a jus in re, a proprietary interest, and the thing itself is hypothe-cated to him; and this hypothecary right can be lost only by his own laches. To this may be added that the libelant was in possession and had a lien for these repairs by the common law, and this lien I hold may be enforced by the admiralty. When the disasters happened that rendered these repairs necessary, Pall, who was joint owner, assigned his share to a vendee, who at the argument was stated to be insolvent, and this statement was not denied. If the part owners are not personally liable, and the ship is not, she will come to the vendee with all her reparations unpaid for by the new owners. This, I think, the maritime law will not allow. The master may apply the owners’ part of her earnings in his hands. This is the freight of the ship, deducting expenses. For the ship is entitled only to her net freight after all expenses are paid. He may also retain the possession until repaid these expenses by her freight. But my opinion is, that he is not obliged to this slow mode of reimbursement, but may resort to the ship herself.
But it is objected that this is a libel against a part of a vessel, and it is said that there is no precedent in the books of a libel, in such circumstances as this case presents, against part of a vessel. But if a suit in such a case will lie against the entire vessel, I can see no grounds in principle, expediency, or convenience why it will not lie against a part. The reason for it is the same and the course of proceeding the same. A share or part of a vessel may be sold as well as the whole, and nothing is more common than for vessels to be held in shares. The want of a precedent may be a good reason to put us on a careful inquiry into the principles of the law, but cannot be a conclusive objection against the suit. It was observed by Lord Mansfield, nearly a century ago, that the law consists of principles and not of cases. And if this could justly be said in a court of common law, the remark will, -with more reason, apply to the admiralty which administers the laws on enlarged principles of ' liberal equity. Its mode of proceeding, also, free from the artificial niceties of the common law, accommodate themselves to the substantial justice of the case. The jurisdiction of the •court is indeed limited to a particular class of subjects, such as are of a maritime nature, but within the limits of that jurisdiction its movements are free, neither servilely subjected to the leading-strings of decided cases, nor restrained of its natural liberty by the shackles and chains of unyielding technicalities.
Another objection, not so easily overcome, is that the libel necessarily involves a settlement of accounts, and that the admiralty has no jurisdiction over matters of account. The libelant took the vessel on shares, a certain portion of the earnings of the vessel, deducting certain charges borne in common by the owners and employer, to be paid over to the owners, and the rest to be retained for his own use. If expenses were incurred in the course of her employment, which under the contract were chargeable on the owners, the proper fund for the payment of these charges, was that portion of the vessel’s earnings remaining in his hands that belonged to the owners. Now if she was liable in specie for these charges by a libel in rem. she would only be liable for the balance after appropriating the funds in his
My opinion, on the whole, is that the court has jurisdiction, and that the pleadings set forth in the ease entitle the libellant to relief.
This decree was reversed in the circuit court [Case No. 8,0S5] on the ground that a part owner has not a lien on the share of his tenant in common, for advances and disbursements.