21 F. Cas. 185 | D. Me. | 1859
This is a libel brought by AYm. J. Currier against the schooner St. Lawrence, for supplies and repairs furnished her while lying in the port of Bangor, in this state. It is not denied that the articles charged, the principal of which was a second-hand mainsail, were furnished, that they have not been paid for, or that the price is justly due to the creditor. But it is contended that he has mistaken his remedy; that in law the vessel is not liable for the debt, but that it is merely the personal debt of the owners, and entitled to no privilege against the ship. The schooner was owned in moieties by Wm; Bush of New York, and John Patterson of Northport, in this state. Patterson purchased his half April 8, 1858, and became ship’s husband. She was enrolled by the owners, and licensed in New York, and let by them to John W. Dickey, as master, to be employed by- him on shares in the coasting trade. Under this well-known contract, the profits are divided between the hirer and the owners; the hirer is at the expense of victualing and manning the vessel, certain port charges being paid in common, and the owners are to keep the vessel in repair. Patterson, the ship’s husband, had his legal domicile in Northport, where his family resided, but his principal business was at New York, and that was his most usual place of residence.
By the general maritime law, every person who furnishes supplies for a vessel, whether repairs for the ship or provisions for the crew, has a privileged claim, in our law, called a lien against the vessel for the price of his supplies. It is a. principle of the maritime law. as old as the law itself. He is considered as trusting the vessel itself; that is treated as his debtor, and the suit is in rem directly against the thing in specie, and not circuitously as in the Roman law against the person having the possession or claiming the ownership. But by the maritime law of this country, this privileged lien is held to exist only when the supplies are for a foreign ship. This was decided in the case of The Gen. Smith, 4 Wheat. [17 U. S.] 438. And in the same case it was decided that within the meaning of our maritime law, and for the purpose of creating this lien, a ship is to be considered as a foreign ship, when she is in a port of any one of the United States other than that to which she belongs. This vessel was enrolled and licensed in the district of New York, and within the rule established by the case of The Gen. Smith, she is to be considered and treated as a foreign vessel in Bangor, provided she was enrolled in the proper collection district. By the registry act of December, 1792 [1 Stat. 287], § 3, and the license act of Feb. IS, 1793 [1 Stat. 305], vessels are required to be registered or enrolled in the collection district that comprehends the port to which they belong; “which port shall be deemed to be that, at which or nearest which, the owner, if there be but one, or if more than one, the husband or managing owner of such ship or vessel usually resides.” The managing owner in this case had his legal domicile at Northport, where his family resided, and where he ■ exercised the right of ownership. But his business was in New York, and there he resided
But however this may be, I do not think the question is necessarily involved in this case. The master, in his deposition, expressly says that the schooner needed a new mainsail, and it seems that both the owners thought so, also, and directed him to purchase a second-hand sail, which he accordingly did. The captain, therefore, may justly be considered as acting, not under his implied power as master, but under the express authority of the owners themselves. The contract will, therefore, have the same legal effect as though the supplies were furnished on the personal order of the owners. And in that case, the ship will be bound, unless by the terms of the contract her liability is excluded. So far from this being the case, the master, in his deposition, says the supplies were expressly furnished on the credit ofr the ship, and no terms of credit were given, which could be construed into an implied waiver of the lien. In that case, on the general and familiar principles of the maritime law, a lien results as a matter of course. Every person who loans money for the building or repair of a ship has a privilege against the ship for the repayment of the money, and the privilege extends as well to the person who furnishes the repairs and materials, as to the creditor who lends money to pay for them. Emerig. Cont. & la Grosse, c. 12, §§ 3, 4, and this text, as well as others of a like character, has been so often quoted as equally true in the maritime law, which, in fact,' borrowed it from that of Rome, by all the writers of the highest authority, that if the doctrine is now to be brought into doubt, we may as well discard all tradition of the maritime law as a fiction or a dream. I am aware of the remark incidentally made by the judge who pronounced the opinion of the court in the case of The Sultana (Pratt v. Reed) 19 How. [60 U. S.] 361, which seems to imply that the owner himself cannot subject the vessel to this lien, when the supplies can be obtained on personal credit. That case might be well decided on its own particular facts, and did not of necessity require the decision of this general question. And I cannot suppose that the court intended to overthrow in this incidental way, a principle of the general and public maritime law, acknowledged and acted upon by the whole commercial world from the earliest times. I feel bound to propounce for the lien.
