119 F. 713 | D. Mass. | 1902
This was a libel filed against the tug Underwriter for the value of coal furnished her in a foreign port while under charter to the Atlantic Transportation Company. The charter provided that the charterer should pay for coal. The coal was furnished upon the order of the master. The evidence is somewhat conflicting, but I find that the following facts are established:
The libelant, through its officers and agents, either knew that the Underwriter was under charter to the transportation company, or knew enough to put upon inquiry a reasonable man who wished to know if there was such a charter. The libelant did not know that the charter expressly provided for the furnishing of supplies by the charterer, but it was put upon inquiry concerning this fact also, and might easily have ascertained it. The coal was ordered by the master. The libelant charged the coal to the tug and owners, and in fact looked to the tug for payment. There was no contract made between the charterer and the libelant to furnish the coal. The correspondence between the two, if any existed, amounted to no more than a request by the charterer for the libelant’s price list. If the libelant had a right to look to the'vessel for the coal, it did not waive that right by any act. No actual necessity for pledging the credit of the vessel was shown. I'do not think that the conversation between Capt. Wiley and Mr. Abemethy regarding the credit given to the tug was proved. Under these circumstances the court has to determine if a lien exists where, in a foreign port, necessary supplies are ordered by the master of a vessel known by the libelant to be under a charter which provides for the payment for supplies by the charterer. No reference has been made to any statute, and the case must be decided by the general admiralty law. This question has not always received the same answer in the courts of the United States, and similar answers have not always rested upon like grounds. For this reason a somewhat extended examination of the history of the lien of a materialman upon a vessel seems desirable.
The admiralty law on this subject administered in the federal courts is derived rather from the civil law and the maritime law of continental Europe than from the common law of England. Dig. 42, 5, 26, 34, provides, “Qui in navem extruendam, vel instruendam, credidit, vel etiam emendam," privilegium habet.” “Quodquis navis fabricando,
Another text of the Digest seems to have affected more considerably the later continental law regarding the rights of the material-man. Dig. 14, 1, 1-7. “De exercitoria actione.” This text deals with the authority of the master to bind the owner of the vessel for repairs, supplies, seamen’s wages, etc., and his authority to borrow money for these purposes. It declares how far the owner is bound if the master misapplies the money borrowed; and it makes the right of action against the owner to depend, not upon the actual maintenance of the ship, for the right of action may exist where the ship gets no benefit, but upon the authority of the master to contract, reasonably supposed to exist by the materialman or lender. How far this text deals with a lien upon the ship, rather than with the personal liability of the owner, is not clear.
The maritime law of England was affected more directly by the maritime laws of continental Europe than by the Roman law. As applied in the English admiralty, the civil law was usually, though not always, first passed through a later continental medium. It is to “the ancient collections of sea laws,” as Mr. Justice Curtis calls them, rather than to the Digest, that reference is commonly made by modern judges; and it was these collections, rather than the civil law at large, by which the commons of England in the fifteenth century
“Whether the texts of the Roman law were misunderstood, and so were the source of the existing usages, or whether it was only intended to adapt them to those usages which had already obtained, it is certain that in the general maritime law of Europe privileged hypothecations were tacitly conferred in the cases in which what we term ‘liens’ now exist. It is true we do not find their precise nature described in any of the ancient collections of sea laws, so far as I have discovered. These laws were, generally, simple practical rules, often partaking of the rudeness of the age in which they were compiled, dealing rarely with abstractions, containing few definitions, and, with the exception of the customs and ordinances of Catalonia and Arragon, collected-by Pardessus in volume 5, p. 333 et seq., and they are not laws of procedure. In the Consulat de la Her, the most ancient and important of all, there is no-definition of a maritime lien, nor any account of the way in which it was to be worked out. Its usual formula is, simply, the ship ought to be sold, and the debt or damage paid from its price. And so, when the personal liability of the master is ordained, it is only said he ought to be put into the power of the magistrate. See chapter 289. But that the right or privilege of the seaman in the ship as a security for his wages (chapters 138, 193), of the merchant for injury or loss of his goods, etc. (chapters 59, 254, 259, 227, 106, 63), or for the price of his goods sold to raise money for the necessities-of the ship (chapter 107), was a real right,—a jus in re, in contradistinction to a mere personal privilege to be paid in a concourse of creditors,—I have no doubt. In the Laws of Wisbuy1 this is clearly shown. Emerigon (Con. a la Grosse, c. 124, § 4) and Boulay-Paty (Cours de Droit'Com. vol. 1, p. 38), translate the forty-fifth article of these laws respecting the right of a merchant whose goods have been sold to supply the necessities of the vessel, or who has lent money for the same purpose, ‘Auront special hypotheque et suit le navire.’ See, also, 1 Pardessus, Col. des Lois Mar. 492, art. 43. Le Guidon (chapter 19, arts. 1, 2; Pardessus, Col. des Lois Mar. 424) denominates such a right ‘special hypotheque.’ ”
Many other passages in various maritime laws show that a lien of some sort upon the ship was contemplated as the result of repairing or supplying her. By the Laws of Oleron,
It is not necessary even to cite the laws giving a master authority to sell part of the cargo in order to repair or provision his ship. The connection of this authority with the right to create a lien upon the ship itself illustrates, however, the nature of this lien. We may pass over, likewise, the laws which deal with the binding of the owner of a vessel by the contracts of its master acting as his agent or servant, though these last also illustrate the nature of the lien of the materialman. There are laws which deal with the lien apart from the liability of the owner. Thus, by the customs of Amsterdam, Pard. I, 420, if the cargo is sold to supply the ship, its owner has a lien for its price upon the vessel, irrespective of a change in the vessel’s ownership. See the Consolato, Pard. II, no. By the Consolato, Pard. II, 225, the master may borrow in a port where no owner is present, and there is necessity. In this case all the body of the ship shall pay the loan, and no owner shall contest it. By the Law of Sweden, Pard. Ill, 159, the owners can escape liability upon the master’s contract by abandoning the ship,—a rule which seems to imply a lien.
These varying provisions of law, so often referred to in the judgments of English and American courts, and not exhaustively cited here, make the peculiar rights of the materialman against the ship, whatever these may be, depend in general upon the authority vested in the master, in case of need and in the absence of the owner, to deal with the owner’s property. The authority of the master must be shown in order to create a lien by hypothecation. There must be sufficiént evidence of necessity and of the owner’s absence, for when the owner is present the necessity is his, and not that of the master or ship. For these reasons it has been supposed that the general maritime law gives to a materialman no lien upon a ship except in case of necessity in a foreign port. , But, notwithstanding the provisions of the various continental maritime codes already referred to, there are weighty considerations which suggest that a privilege or lien or right to proceed directly against the ship was given to the materialman, which attached in a domestic port and apart from any supposed necessity. Thus the Law of Sweden, Pard. Ill, 169, provided that one who lent money for the construction or maintenance of a ship might take a receipt, called a “bilbref,” formally acknowledged, which gave him a lien on the ship superior even to that of a bottomry bond. See the similar provision in Denmark, Pard. Ill, 301. See the Maritime • Ordonnance of Arragon of 1340, Pard. VI, 359, which gave a lien to the materialman and laborer in the construction of a ship which had not yet sailed. See Id. 389.' See, also, as to the lien of workingmen in building a vessel, Consolato, Pard. II, 59, VI, 389, and see, generally, Desjardins, I, 214-219. This appears most
It remains to consider the law of England. The English jurisprudence relating to maritime affairs is so peculiar, and its peculiarities have affected so' considerably the law of maritime liens in this country, that some general remarks must be made concerning it, even at the risk of repeating the commonplaces of admiralty. The law administered by the English court of admiralty has always been in theory a complete system for the administration of justice in maritime. affairs. Alone, for the most part, the court of admiralty has had the administration of this system, and that it interpreted and applied the system correctly nobody doubted. But there was grave and long-continued dispute between the court of admiralty and the other courts concerning the boundaries which separated their several jurisdictions: Each sought to restrain the other from encroachment.Sometimes the court of admiralty punished for contempt those who in cases deemed to be maritime sought relief elsewhere. Gorham v. Granger, Select Pleas in the Court of Admiralty II, p. lxviii; Corsini v. Hangar, Id. p. lxxi. Sometimes it inhibited another court directly. Sewell v. Norman, Sel. PI. I, 75; Wellys v. Felton, Id. 78. Sometimes it did both. Legge v. More, Id. 83. On the other hand, it appears that the jurisdiction of the court of admiralty was early restrained by writs of certiorari (Sewell v. Norman, Sel. Pl. I, p. lxxvi); of supersedeas (Chapilion v. Bird, Id. I, p. lxxiv, 29; Struce v. Sleighter, Id. I, lxxv, 45. See II, p. xli); of mandamus, perhaps (see Bremer v. Porter, I, lxxv, 59); and of prohibition. After the beginning of the seventeenth century this restraint was commonly' operated by. a writ of prohibition, issued by the court of king’s bench,
“It does not appear here in the libel that the admiralty court hath any jurisdiction, and, wherever they have not original jurisdiction of the cause, tho’ there arise a question in it that is proper for their conusance, yet that alters not nor takes away the power of the common law; but if they have jurisdiction of the original, tho’ a question ariseth proper for the common law, yet they shall try that: and after sentence, if it appear that the matter contain’d in the libel is triable at common law, we will grant a prohibition.”
See Greenway v. Barker, Godb. 260.
Indeed, had a court of admiralty attempted to apply to a case before it any system of law but its own, it would have erred admittedly. About 1400 the Commons asked the admiral to change this system, and to govern himself thereafter by the common law; but the request was refused. See Sel. PI. II, p. xlii; 1 Rolle, Abr. 528. A court of equity restrains the enforcement in a court of common law of the penalty of a bond, and this practice has analogies to the treatment of the admiralty court by the king’s bench. Even the granting of a prohibition to the admiralty was not always deemed to be strictissimi juris, and equitable considerations were sometimes admitted to affect the action of the court' of common law. Thus, in Martin v. Green (1665) 1 Keb. 730, a prohibition was sought against a libel for a collision caused by the tide. It was urged that an action on the case was the only remedy, but Chief Justice Hyde doubted, because the owners of the offending vessel were not known, and so there was no available remedy at law. The other judges said this fact did not give jurisdiction, but finally the prohibition was granted only upon a disclosure of the owner’s name, made in order that the libelant might have an effective remedy at law. See Brown v. Franklyn, Carth. 474; Anon., 12 Rep. 77. But the analogy between injunctions and prohibitions is not complete. No one disputed the jurisdiction of the common-law court to give judgment for the penalty. The prohibition by injunction applied only to the party plaintiff. ' On the other hand, the writ of prohibition was addressed directly to the admiralty court. Not being deprived of any part of its formal juris-r diction, the court of common law was not deemed to be aggrieved
Eet us next consider what was the law regarding the lien of a materialman according to that system of maritime law administered by the English court of admiralty. This is not the same thing as the right which the materialman was actually permitted to enforce in England, for the courts of common law often prohibited the court of admiralty in this respect. What was the right of the materialman according to that ideally existent, but often unenforceable, system which has been already mentioned? The printed material for the study of this system is still scanty, and ten years ago was almost wholly wanting. The publication by the Selden Society in 1892 and 1897 of two volumes of Select Pleas of the Court of Admiralty, edited by Mr. Marsden, has let in á flood of light upon questions much disputed in courts of England and America. Instead of conjecturing what may have been the practice and substantial jurisprudence of the English court of admiralty in the sixteenth century, we now know for certain by the perusal of decided cases. Hence it follows that the ordinary student of to-day may set right in some matters of history the great judges of the past. Even Mr. Marsden's selections leave us still ignorant of much that we should like to know. Outside his two volumes, we are confined to (1) statements made in later reported cases by English admiralty judges, who inherited the traditions of the admiralty, and to some extent may have had knowledge of its unprinted records; (2) casual, and often unauthorized, expressions found in publications of various sorts; and (3) reports of cases in the courts of common law where prohibitions to the court of admiralty were sought. The earliest regular English admiralty reports date from the latter part of the eighteenth century, when the courts of common law had triumphed, and the defeated court of admiralty had begun to forget how extensive was the jurisdiction it once had claimed.
To ascertain the law of maritime lien as applied by the English courts of admiralty, it is necessary first to consider briefly the nature of their process, and especially that of their process so-called “in rem.” Eearned judges have said that proceedings in rem in the
But the analogy thus stated .between the process of arrest in the admiralty and the process of foreign attachment is not complete. As was said by Sir John Jervis in The Bold Buccleugh, 7 Moore, P. C. 267:
“The foreign attachment is founded upon a plaint against the principal debtor, and must be returned nihil before any step can be taken against the garnishee. The proceedings in rem, whether for wages, salvage, collision, or on bottomry, go against the ship in the first instance. In the former case the proceedings are in personam; in the latter they are in rem. The attachment, like a common-law distringas, is merely for the purpose of compelling an appearance; and, if the defendant appears within a year and a day, even after judgment and execution against the garnishee, and puts in bail, the attachment is at an end. If the owners do not appear to the warrant arresting the ship, the proceedings go on without reference to their default, and the decree is confined exclusively to the vessel. Many other distinctions will be found upon reference to the notes to Turbill’s Case, 1 Saund. 67, note 1. It is not correct, therefore, to say, that the proceeding in rem is in all respects analogous to the proceeding by foreign attachment, and that the former is merely to compel an appearance, because the latter is undoubtedly for that purpose only.”
When the cases reported in the Select Pleas are examined individually, it appears that in some of them the arrest of the vessel was something more than, a process analogous to foreign attachment. This is true where the- office of the admiral was promoted against
“There is undoubtedly an old practice in the admiralty court of great value, which enables the owners of a ship or cargo in any admiralty action to sue as such,—a proceeding which would have been regarded by the courts of common law with professional horror. But the court of admiralty allowed it for a very good reason,—because what they were really dealing with was one ship against another, and, so long as you had the names of the vessels, you had really all that was material.”
For these reasons, and doubtless for others, the arrest of the ship in admiralty was deemed more and more a proceeding against the ship itself. The pleadings so describe it in many cases. Indeed, as is shown by the statement of Sir Francis Jeune just quoted, the personification of a ship in the law is to some extent almost an intellectual necessity. This personification has become more and more complete in the admiralty law of England and the United States. See The Thomas P. Sheldon (D. C.) 113 Fed. 779; The S. L. Watson, Id. As time went on, the allegation made by the libelant that he had no hope of redress other than by arrest of the ship was treated as merely formal, and then abandoned. See Clerke’s Praxis (Ed. 1798) p. 37, note. The tendency, probably increasing through the latter part of the sixteenth century, to treat many suits in which the defendant’s goods were attached as suits brought against the ship itself, was
“If a suit be in the court of admiralty for building, amending, saving or necessary victualling of a ship, against the ship itself and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted though this be done within the realm.” Godolphin, Adm. Jur. 157; Sel. PI. II, p. 15.
Though these resolutions were repudiated some time afterwards by the courts of common law, there is reason to believe that they were observed for a time by both parties to the contest. The court of admiralty thus abandoned to a great extent its jurisdiction over suits in which a personal judgment was sought, while it was left in the enjoyment of undisturbed jurisdiction over suits against the ship itself, where no party defendant was named in the warrant of arr.est or citation. Manifestly, a suit for building, repairs, or supplies, in which no defendant was named, could be brought only against the ship built, repaired, or supplied, and so the theory was confirmed that the building, repairing, or supplying a vessel was ground for suit in the admiralty against the vessel, without naming her supposed owner. This was established-further by the statutes of the commonwealth of 1648, c. 112, which provided that “the court of admiralty shall have cognizance and jurisdiction against the ship or vessel with the tackle, apparel and furniture thereof, in all causes which concern the repairing, victualling, and furnishing provisions for the setting of such ships or vessels to sea.” By this act the remedy was expressly limited to the vessel repaired or supplied. See Watson v. Warner, 2 Sid. 161. The statutes of the commonwealth were avoided by the restoration, and the jurisdiction of the court of admiralty was at once nan-owed by prohibition, but, as we. shall see, the admiralty long asserted its former rights, even if in vain.
It seems probable, therefore, that the lien or right to proceed against the vessel for its repairs or supplies which was recognized in English admiralty arose in part from the development of the procedure of the court. There is evidence that it arose also from a recognized principle of substantive admiralty law. It is true that Mr. Marsden observes (Sel. PI. I, p. lxxii) that “scarcely a trace appears of the modern doctrine of arrest being founded upon a maritime lien.” There is considerable trace of a doctrine that a maritime lien was deemed to arise upon a ship repaired or supplied. Thus, in Draper v. The Fortune (1580) Sel. Pl. II, 156, the sentence sets out that cables were “applied, and converted to the necessary and beneficial use, reparation, and preservation of the said ship, and that by reason thereof from that time
The admiralty jurisprudence of England thus recognized a lien of some sort, or a right to proceed against the vessel, in favor of the materialman for repairs- and supplies furnished to her; and this whether they were furnished at home or abroad, in case of exceptional necessity, or in the ordinary course of operations. The earlier cases show
“In most of those countries governed by the civil law, repairs and necessaries form a lien upon a ship herself. In our country the same doctrine had for a long time been held by the martime courts; but after a long contest it was finally overthrown by the court of common law and by the highest judicature in the country, the house of lords, in the reign of Charles II.”
See The Alexander, 1 Dod. 278.
Even in Lord Stowell’s day, although the court of admiralty was prohibited from enforcing a lien upon a vessel in favor of a domestic materialman, yet, if the vessel had been sold for other sufficient causes, and the proceeds were in the registry of the admiralty court, that court was for a time allowed to enforce a lien upon these proceeds. See, The John, 3 C. Rob. Adm. 288. This curious survival arose from the failure of the courts of common law to prohibit the enforcement of a lien upon the proceeds, while they strenuously prohibited the enforcement of a lien upon the vessel. By the admiralty law the lien existed in both cases. It is true, as has been said, that the court of admiralty did not distinguish greatly between a lien proper for supplies and a right to attach a ship by legal process and sell her to satisfy the bill for supplies furnished her. The latter right, though different in theory, yet answers much the same purpose as a lien, and is hardly distinguishable from it, unless a question of priority arises. The suit is regarded as brought against the vessel, not to collect the owner’s debts, but to enforce payment of a debt for which the vessel itself is deemed liable. The right to proceed against the ship irrespective of its owner, to hold the ship liable for what were deemed the ship’s debts, was in issue, rather than the precise order in which the ship’s debts were to be paid. If the ship can thus be proceeded against, a lien of some sort is recognized, though its rank is left undetermined. The case put is not that of a suit brought on a personal liability which is enforced by an attachment of the owner’s property on mesne process. The primary suit is against the ship, and it has come to pass that the ship cannot be proceeded against for a debt of her owner unconnected with her. “For the common course of proceedings in the admiralty in cases of this nature is by process to arrest the ship, and ’tis that which brings in the proprietors pro interesse suo, and then the libel follows.” Child v. Sands (1693) Carth. 294. See Greenway v. Barker (1613) Godb. 260; Watson v. Warner (1659) 2 Sid. 161. The lien or similar right in the vessel given generally to a materialman by the English system of admiralty law was deemed to cover repairs and supplies wherever furnished. Thus Sir Leoline Jenkins said;
“But the greatest discouragement of all is that of materialmen; such as furnish tackle, furniture, or provisions for the repairing of ships or setting of them out to sea. When they are not paid at the time appointed, they arrest the ship, which will bring all the part owners to answer for it; but if, when they declare in the admiralty, a prohibition be granted, the remedy will be against the master alone, who, tho’ he bespoke the materials, is commonly not worth the 20th part of the action. And these materialmen have often offered to make it demonstrable before his royal highness that if the ship shall be subject to their arrest without danger of a prohibition (because the contract was upon the land) an 100 sail of ships shall be furnished and set out with more ease and less time than 5 now can be, as the practice of pro*726 hibiting hath lately been. For there is not any master but may command £1,000 worth of goods upon his ticket in a morning, when the materialmen do know that they may arrest a ship with effect in case he and his owners don’t come and give each materialman such money or security as will content him. Whereas, if they be forced for their remedy to common law against the master and his part owner (who are most commonly persons unknown, and at a distance), they had better keep their wares in their shops than pursue so many upon such unequal terms.” “But the greatest convenience of all will be the encouragement to materialmen. If they be but secure of their action against the ship, there is nothing in their warehouse but will be forthwith furnished upon the credit of the ship. And if we may believe men of experience, this will contribute more effectually than anything to his majesty’s designs for the increase of shipping and the encouragement of navigation. And if the bill before your lordship will naturally produce these effects, as it certainly will, I need not enlarge any other conveniences.” Jenkins’ Life, vol. I, pp. Ixxvi, Ixxxiii, Ixxxiv.
This argument plainly shows that a personal action to be brought in the court of admiralty against the shipowner was not then desired by the supporters of the admiralty jurisdiction, but only a suit in rem against the ship for both domestic and foreign furnishings. See The Champion, Fed. Cas. No'. 2,583. It is true that in 1835 the judicial committee of the privy council in The Neptune, 3 Knapp, 94, 115, said that the maritime law of England had never given a lien for domestic supplies. To this statement it must be replied that a decision of the highest court makes law, but its opinion cannot change past events. The historical error thus made by the privy council has already been demonstrated, and will still further appear.
' We have next to consider what were the limits imposed upon this enforcement of the lien for repairs and supplies by courts of common law. In studying the early reports of cases of prohibition, several things must be noted: First. The report was unofficial, and was often prepared with less care than that used at the present time. The report, therefore, is not always quite intelligible. Second. The fact that a prohibition was sought and obtained proves two things: (a) That the admiralty court claimed, and (b) that the common-law court denied, the jurisdiction of the admiralty in the case supposed. The granting of a prohibition proves the claim quite as thoroughly as it proves the denial. Third. The decided cases exhibit a conflict between two courts and two systems of law; a conflict which lasted for several centuries, and in which the court of common law was the stronger, and finally prevailed, while yet the court of admiralty never admitted itself to be in the wrong. In .the course of the struggle several compromises were proposed, and the result finally reached had the nature of a compromise, though the admiralty obtained very little of its original claim. The decisions, therefore, are not altogether consistent with each other. The jurisdiction of the admiralty in case of supplies furnished in a domestic port was denied in Leigh v. Burley (1610) Owen, 122, but in Tasker v. Gale (1634) 1 Rolle, Abr. 533, it was said that, if á shipwright sues in the admiral’s court for the fittings of the ship for navigation at sea, no prohibition lies. This case has often been quoted to show that the courts of common law recognize the right to sue in the admiralty under the conditions stated. Yet nothing is plainer than that the courts of common law generally denied the right. The explanation of' the statement in Tasker v. Gale is prob
“By the maritime law the contract of the master implies an hypothecation, but by the common law it is not so, unless it be so expressly agreed. In the Oase of Coster there was an express hypothecation, and that was in a place where hypothecations were allowed good. For that reason we allowed the-jurisdiction of the admiralty in that case, for there was no remedy at common law; but in this case there is nothing but a mere common contract at land.”
A prohibition was therefore issued. See Benzen v. Jeffries (1697) 1 Ld. Raym. 152. The Henrich Bjorn, 11 App. Cas. 270, 282. In-defending the jurisdiction of the court of admiralty, Zouch observes:.
“Some amongst us as take upon themselves to determine that to the jurisdiction of the admiralty of England no special or certain causes do belong. So the Lord Hobard in Audley and Jerining’s Case affirmes that their jurisdiction is not in respect of any certain eases, as the causes of Tithes and Testaments are in the Spiritual Courts, but only in respect of place; and no. doubt but Sir Edward Cook and others, who talk so much of altum mare, are-themselves perswaded and would perswade others to be of that opinion.” Zouch, Adm. p. 28.
The language of the common-law courts, indeed, does not always-distinguish between matters of jurisdiction and of substantive law. Thus Lord Mansfield said:
“Work done for a ship in England is supposed to be on the personal credit of the employer. In foreign parts the captain may hypothecate the ship.”' Wilkins v. Carmichael, 1 Doug. 101.
And Lord Hardwicke said:
“If at sea, where no treaty or contract can be made with the owner, the master employs any person to do work on the ship, or to new rig or repair the same, this, for necessity and encouragement of trade, is a lien upon, the ship, and in such case the master, by the maritime law, is allowed to hypothecate the ship.” 2 P. Wms. 367. See Ex parte Shank, 1 Atk. 234.
Very likely Lord Hardwicke meant no more by this expression than-to say that the master abroad might hypothecate the vessel by bottomry. With all respect for these great judges, it must be said frankly that their dicta, if taken literally, represent neither the old admiralty law of England nor the common law, but merely the resultant of the two as worked out through a conflict of territorial jurisdiction. The admiralty law gave a lien upon the ship whether the work was done in England or not. The common law gave no lien upon the ship whether the work was done in England or not. See Buxton v. Snee, 1 Ves. Sr. 154; Menetone v. Gibbons, 3 Term R. 267. By the courts of common law, as has been said, the court of admiralty was at last allowed jurisdiction of a suit on bottomry bond made in the course of a voyage, whether executed on land or at sea. Lord Kenyon observed that the practice had been settled since the days of Lord Raymond. “Then, if the admiralty has jurisdiction over the subject-matter, to say that it is necessary for the parties to go upon the sea to execute the in
After the attempt had failed to get relief in the admiralty, and to hold the ship itself for repairs and supplies, the materialmen had to-resort to courts of common law, and there to bring suit against the owners. The right of a materialman to sue the owner on a contract entered into by the master depended upon the law of agency. If the master, as agent, had authority to bind his principal, and in making the contract acted within the scope of his authority, the owner was bound; not otherwise. Maritime law and custom were properly resorted to in order to determine the scope of the master’s authority. “Eyre, J., held there was no difference between a land carrier and a water carrier, and that the master of a ship was no more than a servant to the owners in the eye of the law, and that the power he has of hypothecation, etc., is by the civil law.” Boson v. Sandford, 2 Salk. 440. At first it seems that the authority of the master was presumed. “It was held that prima facie the repairer of a ship has his election to sue the master who employs him or the owners, but, if he undertakes it on a special promise from either, the other is discharged.” Garnham v. Bennett, 2 Strange, 816. Eater it was said that, if the owner was absent, the master could bind him, but, if he was present, the contract bound only the master. “Under the general authority which the master of a ship has, he may make contracts and do' all things necessary for the due and proper
The liability of the owner of a vessel in contract for the acts of his authorized agent is a thing quite different from a lien arising from the act of repairing or of supplying. This appears from the cases in which the legal owner of a vessel was held not liable for the acts of the master duly appointed, upon the ground that, notwithstanding the legal ownership, the master was not his agent. Thus, where the vessel was under a charter which provided that the charterer should repair, the owner was held not bound, though the materialman knew nothing of the charter. Reeve v. Davis, 1 Adol. & E. 312; Frazer v. Marsh, 13 East, 238. Although these cases have no direct bearing upon the lien of the materialman, yet in the diminished state of the English admiralty jurisdiction, which prevented an action directly against the vessel, the lien and the owner’s liability were confused. Thus, in Rich v. Coe, 2 Cowp. 636, 639, Lord Mansfield said: “Whoever supplies a ship with necessaries, has a treble security: (1) The person of the master; (2) the specific ship; (3) the personal security of the owners, whether they know of the supply or not.” And see Farmer v. Davies, 1 Term R. 108; Reeve v. Davis, 1 Adol. & E. 312. It is possible that the theory of a right to proceed against the ship was connected with the theory, sometimes discussed, that the master, though the agent of the owners, could not bind them beyond the value of the ship. See Yates v. Hall, 1 Term R. 73, especially the opinion of Mr. Justice Buller. Probably the latter theory arose from a confusion between the general maritime law and the common law of agency. Certainly it is foreign in the latter, and it leads
The history of the law of Scotland appears best from the briefs submitted to the House of Lords in Wood v. Hamilton, 3 Paton, 148, cited in Maclachlan, Merch. Shipp. (3d Ed.) 68; “Appeal Cases in the House of Lords (1786-1789)” at end of volume, in Social Law Library. The brief for' the appellants in support of the lien for domestic repairs is signed by T. Erskine (Lord Erskine) and W. Grant (Sir William Grant); that for the respondents by Hay Campbell (afterwards lord president of the court of session) and Alexander Wight. The proeeding was to- establish a lien upon a vessel for repairs furnished in her home port. The lord ordinary sustained the lien. On appeal the court of session sought the opinion of English counsel upon the law and practice of England (for what reason does not appear). The English counsel replied that a materialman had no lien, founding his opinion entirely upon cases in the common-law courts. The court of session reversed the decision of the lord ordinary. Upon a first rehearing, sought by the counsel for the material-men, the court of session reversed its first decision, and affirmed that of the lord ordinary. Upon a second rehearing the same court went back to its first decision, and reversed the lord ordinary. Upon a third rehearing the court adhered to its disallowance of the lien. Mor. Dec. 6269. The elaborate arguments of counsel on both sides are interesting. It was made to appear that the admiralty court of Scotland had long entertained jurisdiction of suits against a ship for repairs and supplies both foreign and domestic. Many unreported cases in the court of admiralty were produced to establish this fact. The practice had been sustained by the court of session in Watson v. Arbuckle (1711) Mor. Dec. 6262, and in Rope-Work Co. v. Crosses (1761) Id. 6268. Otherwise where the ship had not been launched. Maxwell v. Wardroper, Id. 6266. This appears to have been the common understanding. To meet this argument, the respondents were driven to urge “that the practice of the admiralty court in the matter appeared to have been a series of errors from first to last.” There was some discussion regarding the continental law. The appellants asserted, as was quite true, that it generally gave a lien or . right to proceed against the ship for domestic as well as for foreign
It has hitherto been shown that at the time of the American Revolution the English court of admiralty was permitted to exercise jurisdiction in favor of the materialman only in two cases: (1) Where there was a bottomry bond executed at sea or abroad (see The Atlas, 2 Hagg. Adm. 49); and (2) where the ship had been sold for some reason otherwise sufficient, and the proceeds were in the registry of the admiralty, in which case the materialman was for a time allowed to assert a lien on the proceeds, whether the materials were furnished in a home or in a foreign port. See Waring v. Clarke, 5 How. 441, 452, 12 L. Ed. 226. No distinction between ■foreign and domestic repairs was recognized until 1835. This limitation upon the admiralty jurisdiction resulted, not from any interpretation of the general maritime law by the court of admiralty, but merely from the prohibitions issued by the courts of common •law, which restrained the court of admiralty from exercising in any other cases that general jurisdiction which the admiralty had1 claimed long and vigorously. The admiralty court claimed jurisdiction of all actions in rem (and originally of actions in personam as well) in all cases where supplies had been furnished a vessel, either in a home or in a foreign port, both where there was an express hypothecation by bottomry or otherwise and where there was no express hypothecation whatsoever. If, for example, a party brought suit in the admiralty court against a vessel for supplies furnished in the home port, the court gave him a remedy in theory, and probably -in practice, unless and until it was prohibited from proceeding further by a court of common law. See The General Burnside (C. C.) .3 Fed. 228. In the seventeenth century the remedy was often effective. ' The jurisdiction which the English admiralty court exercised somewhat furtively, and vainly claimed where it was denied, the Scotch admiralty court then exercised fully. But after the decision of Wood v. Hamilton the substantive admiralty law of Scotland was declared to be different from the substantive admiralty law of England, though the available remedies of the materialman in the •two countries were much the same. In England the domestic materialman had on his side the substantive admiralty law, but failed 'by the defective jurisdiction of the admiralty court. In Scotland the court was left with sufficient jurisdiction, but the substantive law was changed by Wood v. Hamilton.
From the admiralty courts of Great Britain we pass to those of the .American colonies. It has been supposed that these exercised a ju
•‘The commissions of the crown gave the [colonial admiralty] courts which were established a most ample jurisdiction over all maritime contracts, and over torts and injuries, as well in ports as upon the high seas. And acts of parliament enlarged, or rather recognized, this jurisdiction by giving or confirming cognizance of all seizures for contraventions of the revenue laws. Tested, therefore, by this exposition, the admiralty jurisdiction of the United States would be as large as its most strenuous advocates ever contended for.”
In support of this proposition, Mr. Justice Story cited the form of commission used in New Hampshire in 1731. See Waring v. Clarke, 5 How. 441, 454, 12 L. Ed. 226. But it must be remembered that neither the crown nor the courts of admiralty acquiesced in the construction given to those statutes by virtue of which the English courts of common law prohibited most of the admiralty jurisdiction. The fact that a royal charter reserved admiralty rights, or that a royal commission purported to give them, does not prove that those rights were exercised freely, and acquiesced in by the courts of common law. Thus Mr. Justice Woodbury said in his dissenting opinion in Waring v. Clarke, 5 How. 441, 477, 12 L. Ed. 226:
“These commissions, in the largest view, only indicated what might be done, not what was actually afterwards done under them. In the next place, all must see, on reflection, that a commission issued by the king could not repeal or alter the established laws of the land.” “But besides these conflicting features in different parts of them, the commissions of vice admirals here seem, in most respects, copies of mere forms of ancient date in England.”
See New Jersey Steam Nav. Co. v. Merchants’ Bank of Boston, 6 How. 344, 422, 12 L. Ed. 465; The Apollo, 1 Hagg. Adm. 306, 312.
The decision in Waring v. Clarke is now the long-settled and thoroughly established law of the United States, and the dissenting objection of Mr. Justice Woodbury is quite unavailing, but his historical criticism of the scanty basis of Judge Story’s argument is not shaken. Mr. Justice Woodbury went on to observe on page 479, 5 How., and page 226, 12 E. Ed.:
“In connection with this, all the admiralty reports we have of cases before the Revolution, and of - cases between 1776 and 1789, seem to corroborate the same view, and are worth more to show the actual jurisdiction here than hundreds of old commissions containing obsolete powers never enforced. There is a manuscript volume of Auchmuty’s decisions made in the vice admiralty court of Massachusetts about 1740. See Ourt. Merch. Seam. 348, note. It will be difficult to find in them, even in one colony, much more in the thirteen, clear evidence of any change here, before the Revolution, in respect to the law concerning the locality of torts.”
But here it must be observed, upon the other side, that the basis of Judge Woodbury’s statement is itself somewhat narrow. There are several manuscript volumes, instead of the one he referred to, and they cover a large part of the proceedings of the vice admiralty court of Massachusetts between 1716 and 1776. Regarding the jurisdiction actually exercised they sustain pretty completely Judge Story’s contention, though it seems he never read them. See Insurance Co. v. Dunham, 11 Wall. 10, 20 L. Ed. 90; 21 Wall. 601, 22
Between the Declaration of Independence and the adoption of the federal constitution there exist two or three reported cases. In Clinton v. The Hannah (1781) Bee, 419, Fed. Cas. No. 2,898, the ■court, in dealing with the alleged lien of a shipwright for building a vessel, recognized the English rule, and followed professedly the ■decisions of the English courts of common law. In Shrewsbury v.
“And herein I distinguish thus: Where a vessel is lying in port, and the owner is there present, all matters and contracts relative to her must be supposed to be entered into by him on shore, and consequently to be infra corpus comitatus; and redress and satisfaction in case of any dispute on the occasion must be sought in the courts of common law. But where a vessel is on a voyage, and by stress of weather or other accident puts into a port, the occasion happening at sea, and on her arrival in port no owner being present to whose personal credit recourse may be had for necessaries, the master, ex necessitate rei, has a right to procure them on the security of the vessel; and to obtain payment on that security that is the proper and only court to apply to. This distinction is plainly laid down and taken notice of in all the cases where this matter has been agitated.”
The learned judge quoted in support of his argument almost altogether from cases in the English courts of common law. It seems that he believed that the reason why a libel in rem could be maintained in the admiralty for supplies furnished a vessel in a foreign port was that the jurisdiction of the court of admiralty attached to a contract for supplies there made,' while such a suit could hot be maintained for domestic supplies, because the jurisdiction of the court of admiralty did not attach to a contract made in a domestic port. He did not suppose that the substantive law of the admiralty gave a lien in one case more than in the other. He believed himself to be following, not the general maritime law, but the limitations imposed upon the admiralty jurisdiction by the English courts of common law. He therefore refused to permit the domestic ship carpenter to recover. His reasoning, indeed, might perhaps have permitted a recovery for supplies furnished in a foreign port, even where no bottomry bond had been given. If he would really have permitted this, he was prepared to go further than the English admiralty courts had been allowed to go, but at the most this conclusion of his was a doubtful obiter dictum. His language, like that of contemporary English courts, shows the beginning of that confusion between jurisdiction and substantive law which has -so much affected the later history of the lien.
When the federal district courts were established as courts of admiralty, they found their situation greatly different from that of all previous admiralty courts in countries governed by the common law. (Some colonial courts had both admiralty and common-law jurisdiction, and some state courts had admiralty jurisdiction between 1776 and 1789, but the exceptions are insignificant.) See The Lottawanna, 21 Wall. 559, 580, 22 L. Ed. 654. Thereafter prohibitions became rare, though still permitted by statute. See Rev. St. § 688 [U. S. Comp. St. 1901, p. 565]; Ex parte Gordon, 104 U. S. 515, 26 L. Ed. 814; In re Fassett, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed. 1087; Ex parte Phenix Ins. Co., 118 U. S. 610, 7 Sup. Ct. 25, 30 L. Ed. 274. The court which could prohibit and the court of appeal were the same. The same court of admiralty determined the jurisdiction and applied the substantive law. True, there was an appeal both as to jurisdiction and substantive law, but the appeal
“The argument in support of this libel has proceeded on the ground that the admiralty law of the United States is the civil law of the Roman government. But the civil law has undergone many changes and modifications, which we are not bound to trace. The admiralty law of Great Britain is the admiralty law here. The lien on vessels for materialmen and shipwrights exists only in a foreign port. Where the owner is present and resident, the common-law principle must govern.. In such case no lien on the vessel is created. In the case of an owner, who, though present, when the work and materials are furnished, is transient and nonresident, I am disposed to think otherwise, and that in such case the lien attaches.”
Doubtless the learned judge thus extended by implication the jurisdiction of the admiralty court beyond that permitted in England, though he did not perceive that he had done so. Also he appears somewhat to have lost sight of the difference between jurisdiction and substantive law. He speaks of the “common-law principle” governing in one case and not in another. Probably, however, he meant no more than that the admiralty court had jurisdiction in- one case and had no jurisdiction in the other. These decisions and their language tended, however, to bring about the further confusion which will presently appear. In Gardner v. The New Jersey, 1 Pet. Adm. 223, Fed. Cas. No. 5,233, the court took jurisdiction of a libel in rem by a master for supplies, saying:
“Claims of materialmen for supplies afforded to a ship are within the jurisdiction of the admiralty, and suable there, in England, as well as in other states. Pilotage is a necessary expenditure on a voyage. If a master pays demands for these claims, he represents the claimants, and the lien continues on the moneys produced by the sale of the ship. As to pilotage, the master is bound by the Laws of Oleron, and other maritime laws, to pay it, for the safety of the ship and goods. In England a shipwright may sue in the admiralty for building a ship for navigation on the sea, and for repairing a ship.”
The last remark shows the danger of relying upon two or three cases only, where the mass of reported decisions is great, and especially where the reports are early and imperfect. If there was a point of law then well settled in England, that point was the want of jurisdiction in a court of admiralty over a libel by a shipwright to recover for his services in building a vessel. Throughout his opinion in Gardner v. The New Jersey the learned judge plainly believed himself to be regarding the limits of English admiralty jurisdiction, however mistaken his notions of those limits may have been. On the other hand, in Stevens v. The Sandwich, 1 Pet. Adm. 233, Fed. Cas. No. 13, 409, decided in 1801 in the district court of Maryland, Judge Winchester held that the courts of admiralty created by the constitution were not limited in their jurisdiction by the prohibitions issued by the English courts of common law, and that they could take cognizance of contracts and debts for building and repairing ships. He therefore sustained a libel in rem for repairs, apparently made in the home port. This was the first, and for some time the only, reported case, which suggested that the jurisdiction of the American admiralty courts was different from that of the English. According to the late Judge John Lowell, the unreported practice of the admiralty court in this district agreed with Stevens v. The Sandwich. See The George
“The admiralty has always rightfully possessed jurisdiction over all maritime contracts; and the decisions of the courts of common law, prohibiting its exercise, are neither consistent in themselves nor reconcilable with principle.” “It will be recollected that this is a foreign ship, and that by the general maritime law every contract of the master for repairs and supplies imports an hypothecation. It has been supposed that the rule of the common law is different. But it has never yet been extended to cases of repairs of foreign ships, or of ships in foreign ports. I hold, therefore, that the contract for repairs in this case, being of a foreign ship, is to be governed by the maritime law, and created a lien. Whether, in case of a domestic ship, materialmen have a lien for supplies and repairs furnished at the port where the owner resided, I give no opinion. There are great authorities on both sides of the question, though upon principle, independent of common-law authorities, it does not seem to me that there is much room for doubt. Be this as it may, it cannot affect the jurisdiction of the admiralty in such cases, for that stands altogether independent of the doctrine of liens, and may be enforced as well by process in personam as in rem.” Pages 349, 350, 2 Gall., and Fed. Cas. No. 7,294.
From these quotations it will be seen that Mr. Justice Story, while undoubtedly accepting the general jurisdiction of the admiralty in case of maritime contracts, yet doubted whether a court of admiralty should apply the general maritime law or the common law to the case of domestic repairs. With all his great learning, he seems to have forgotten that no English admiralty court ordinarily applied the common law to any question before it, and that no English court of common law ever dreamed of making it do so. In other words, even he confused jurisdiction and substantive law, as it has been shown that other judges were doing elsewhere at about the same time. In De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776, decided in 1815 in an opinion which is now classic, Mr. Justice Story decided that the admiralty court had jurisdiction, concurrently with the courts of common law, over maritime contracts, and that the federal courts of admiralty were not confined by the English limitations. The law then stood thus; Several circuit and district courts had decided that the American admiralty jurisdiction was the same as the English, although, in determining that jurisdiction, they had sometimes failed to observe correctly what the English jurisdiction actually was, and so had taken jurisdiction of suits in rem against a vessel for supplies furnished in a foreign port without express hypothecation,—a matter of which the English court of admiralty was not permitted to take jurisdiction. Other circuit and district courts had held that the federal courts of admiralty had a jurisdiction similar to that which the English admiralty courts had claimed, and one district court had applied this jurisdiction to the case of domestic supplies, permitting therefor a libel in rem. For a long time the conflict was left unsettled by the supreme court. In The Charles Carter, 4 Cranch, 328, 2 L. Ed. 636, the court took jurisdiction without question of a libel on a bottomry bond given by the owner in the home port, though it denied that, under the circumstances of the case, a lien existed. This was an
“No doubt Is entertained by this court that the admiralty rightfully possesses a general jurisdiction in cases of materialmen; and, if this had been a suit in personam, there would not have been any hesitation in sustaining the jurisdiction of the district court. Where, however, the proceeding is in rem to enforce a specific lien, it is incumbent upon those who seek the aid of the court to establish the existence of such lien in the particular case. Where repairs have been made or necessaries have been furnished to a foreign ship, or to a ship in a port of the state to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem in the admiralty to enforce his right. But in respect to repairs and necessaries in the port of a state to which the ship belongs the case is governed altogether by the municipal law of that state, and no lien is implied, unless it is recognized by that law. Now, it has been long settled—whether originally upon the soundest principles it is now too late to inquire—that by the common law, which is the law of Maryland, materialmen and mechanics furnishing repairs to a domestic ship have no particular lien upon the ship itself for the recovery of their demands. A shipwright, indeed, who has taken a ship into his own possession to repair it, is not bound to part with the possession until he is paid for the repairs, any more than any other artificer.*742 But if he has once parted with the possession, or has worked upon it without taking possession, he is not deemed a privileged creditor- having any claim upon the ship itself.”
The learned judge, speaking for the supreme court, therefore asserted : First. That the court of admiralty possesses a general jurisdiction to enforce contracts for supplies and repairs. In asserting this he was in accord witth Judge Winchester and with the theory of the English admiralty courts; but he was opposed to the English courts of common law, and to the Southern admiralty courts, as is' shown in the cases above referred to. Second. He asserted that, if the case at bar had been a libel in personam, the court would have had jurisdiction. In this he agreed with the most ancient claim of the English admiralty courts, though they had ceased contending for it long before they were forced to abandon their jurisdiction over libels in rem; and perhaps he agreed with Judge Winchester, though this is doubtful. He was opposed to the courts of common law, to the compromise which the admiralty court made with the common-law courts in 1632, and to the Southern admiralty decisions. Third. That there was no lien for repairs upon a domestic ship. Here he was opposed to the theory of the English admiralty courts, to the continental courts, to Judge Winchester, and, though his conclusion was that of the English courts of common law, yet the conclusion was reached by drawing a distinction diametrically opposed to that which the common-law courts had consented to draw in 1632. Judge Story asserted that a libel in personam could be maintained where a libel in rem could not be. Except from his own intimation in The Jerusalem, above1 referred to, no court or judge, so far as is known, had ever suggested this distinction, while not a few courts had suggested that precisely the opposite distinction was maintainable.. Fourth. Judge Story asserted that the general maritime law, following the civil law, gave to the materialman a lien for necessaries furnished in a foreign port. The general maritime law, as has been shown, gave a lien or privilege whether .the supplies were furnished in a foreign or in a domestic port, though the results of the lien were somewhat different in the two cases. In respect of domestic repairs, he asserted that the case was governed by the municipal lawr. It is hard to say how far this corresponds to the continental view of the subject, for on the continent there was little distinction between municipal and maritime law. His statement regarding the lien on a domestic vessel did represent the law in England to some extent, but with the important qualification that, if the municipal law there gave a lien,—and it did give one to a materialman retaining possession of the vessel,—then that lien was enforceable only in common-law courts, and not in the admiralty. Here again the learned judge seems not to have perceived clearly the difference between jurisdiction and substantive law. The decision in The General Smith has not been overruled, notwithstanding its partial opposition to the general system of maritime law, but some of the principles stated in the opinion of the learned judge were not established for a long time. See the criticism of Mr. Justice Story’s opinion in the dissenting opinion of Mr. Justice Clifford in The Lottawanna, 21 Wall. 558, 593, 22 L. Ed. 654.
“For these purposes the law maritime attaches the power of pledging or subjecting the vessel to materialmen to the office of shipmaster, and considers the owner as vesting him with those powers by the mere act of constituting him shipmaster. The necessities of commerce require that when remote from his owner he should be able to subject his owner’s property to that liability without which it is reasonable to suppose he will not be able to pursue his owner’s interests. But when the owner is present the reason ceases, and the contract is inferred to be with the owner himself, on his ordinary responsibility, without a view to the vessel as the fund from which compensation is to be derived.”
The first two sentences just quoted do undoubtedly express the general maritime law, but the third sentence does not, unless its application is limited to bottomry. As has been shown, there is no doubt that the general admiralty law, both in England and on the continent, recognized and enforced against the ship the lien of a material-man for supplies furnished in a home port. Whatever was his error regarding the general maritime law, it is clear that Mr. Justice Johnson did not suppose that he was departing from English precedent. De Lovio v. Boit had then been decided for 10 years, but The Levi Dearborn had not been overruled by any actual decision of the supreme court. As has been said, the English common-law courts allowed the court of admiralty jurisdiction over foreign bottomry bonds, and, even in the absence of bottomry, they for some time allowed the admiralty to satisfy the claims of materialmen, where the vessel had been sold for other sufficient reason,—as had happened in The St. Jago de Cuba,—and the proceeds were in the admiralty court. In Ramsay v. Allegre, 12 Wheat. 611, 6 L. Ed. 746, decided in-1827, the court, speaking by Chief Justice Marshall, in an opinion of half a dozen lines refused, to permit a libel in personam for materials furnished in a home port in a case where the libelant had not surrendered a negotiable note given for the debt, “it not being necessary to1 consider the general question of jurisdiction.” See Andrews v. Wall, 3 How. 568, 573, 11 L. Ed. 729. Believing that the court was drifting almost imperceptibly from the true principles of maritime law, and feeling the responsibility arising from his silent concurrence in the opinion in The General Smith 'and from his own opinion in The St. Jago de Cuba, Mr. Justice Johnson delivered an elaborate concurring opinion, in which he maintained that the limitations of admiralty jurisdiction, were the same in America as in England. He vigorously condemned the language of the opinion in The General Smith, the decision in The Sandwich, and the reasoning of De Lovio v. Boit. The opinions of Mr. Justice Story have prevailed all along the line, but there is no doubt that Mr. Justice Johnson clearly established as a matter of history that in permitting a libel in personam
So imperfectly did the most experienced judges of this country understand the relation of the English courts of common law to those of admiralty that in Carrington v. Pratt, 18 How. 63, 69, 15 L. Ed. 267, Mr. Justice Nelson referred to Stainbank v. Fenning, 11 C. B. 51, as establishing a precedent of substantive admiralty law that a master can pledge the credit of á ship only by a bottomry bond. The English decision referred to was, as has been shown, simply the result of a curtailment of English admiralty jurisdiction, to which the. admiralty courts of the United States were not submitted. In spite of the doubt expressed in Ramsay v. Allegre, the proposition stated in The General Smith, viz., that repairs made in a foreign port generally give a lien enforceable in a court of admiralty, while repairs made in the home port of the vessel give no such lien, has been fully established in the federal courts. Peyroux v. Howard, 7 Pet.
“The bench and bar have come to doubt whether the decision that a maritime lien does not arise in a contract for repairs and supplies furnished to a domestic ship is correct, as it is clear that the contract is a maritime contract, Just as plainly as the contract to furnish such repairs and supplies to a foreign ship or to a domestic ship in the port of a state other than that to which the ship belongs.” Page 219, 20 Wall., and page 259, 22 E. Ed.
In a later decision made in the same case—The Lottawanna, 21 Wall. 558, 22 L. Ed. 654—the whole subject was reviewed, and the distinction stated in The General Smith was sustained against the dissent of Mr. Justice Clifford, who criticised The General Smith severely. Since The Lottawanna the distinction has often been referred to, and has never again been questioned. The reasoning upon which it has been rested has varied, however, and the variety in the reasoning has not always been recognized.
First. The distinction has been rested upon the theory that the general maritime law gives a lien in one case and denies it in the other. Thus, in Peyroux v. Howard, 7 Pet. 324, 341, 8 L. Ed. 700, it was said:
‘Where the repairs have been made or necessaries furnished to a foreign ship, or to a ship in the ports of a state to which she does not belong, the general maritime law gives a lien on the ship as security, and the party may maintain a suit in the admiralty to enforce his right. But as to repairs or necessaries in the port or state to which the ship belongs the case is governed altogether by the local law of the state, and no lien is implied unless it is recognized by that law.”
See New Jersey Steam Nav. Co. v. Merchants’ Bank of Boston, 6 How. 344, 391, 12 L. Ed. 465.
In Ferry Co. v. Beers, 20 How. 393, 401, 402, 15 L. Ed. 961, it was said:
“In considering the foregoing description, it must be borne in mind that liens on vessels incumber commerce and are discouraged; so that, where the owner is present, no lien is acquired by the materialman; nor is any where the vessel is supplied or repaired in the home port.”
In Maguire v. Card, 21 How. 248, 251, 16 L. Ed. 118, it was said:
“We have at this term amended the twelfth rule of the admiralty so as to take from the district courts the right of proceeding in rem against a domestic vessel for supplies and repairs which had been assumed upon the authority of a lien given by state laws, it being conceded that no such lien existed according to the admiralty law.”
And in The Edith, 94 U. S. 518, 520, 24 L. Ed. 167:
“The repairs having been made on a domestic vessel in her home port, there was no lien for them by the maritime law.”
See, also, The St. Lawrence, 1 Black, 522, 529, 531, 17 L. Ed. 180; The Belfast, 7 Wall. 624, 643, 19 L. Ed. 266.
“By the general maritime law, those who furnish necessary materials, repairs, and supplies to a vessel upon her credit have a lien on such a vessel therefor, as well when furnished in her home port as when furnished in a foreign port.”
See, to the same effect, The Kalorama, 10 Wall. 204, 212, 19 L. Ed. 941.
The court thus recognized that in denying a lien for domestic repairs the law of the United States differs from the general maritime law. It defended the American practice by saying, “No one doubts that every nation may adopt its own maritime code,” and, “according to the maritime law as accepted and received in this country, we feel bound to declare that no such lien exists”; i. e., for domestic repairs. 21 Wall. 572, 578, 22 L. Ed. 654. This is to declare a difference between the maritime law of the United States and that of other countries without -giving a reason therefor. It is simply stare decisis. Perhaps this was all that Mr. Justice Bradley meant to do. Yet into his reasoning crept this statement:
“The proposition, therefore, that by the general maritime law a lien is given in cases of the kind now under consideration, does not advance the argument a single step, unless it be shown to be in accordance with the maritime law as accepted and received in the United States. It certainly has not been the maritime law of England for more than two centuries past. Whether it is the maritime law of this country depends upon questions which are not answered by simply turning to the ordinary European treatises on maritime law, or the codes or ordinances of any particular country.” 21 Wall. 574, 22 L. Ed. 654.
As has been shown, the learned justice here fell into historical error. The admiralty law of England certainly gave a lien or right to proceed against the ship for domestic repairs from the earliest times of which we have record, though that lien, as well as the lien for-foreign repairs, was denied enforcement for more than two centuries by the prohibitions of the courts of common law. Thus, in The Albany, 4 Dill. 439-441, Fed. Cas. No. 131, Judge Dillon said:
“It is equally well known that this principle [lien for domestic repairs] has . not been adopted as the law of England; or, rather, after having obtained in the admiralty courts of that country for some time, it was overturned by the hostility of the common-law courts;” “the principle of the civil law in this respect having been, ,as above observed, overthrown by the early hostility of the common-law courts to the admiralty jurisdiction.”
Had Mr. Justice Bradley, in The Lottawanna, undertaken to give a reason for the distinction between the American maritime law on the one hand and that of the world at large, including the admiralty law of England on the other, it is likely-that he would have fallen into that confusion between English admiralty jurisdiction and substantive law which has already been pointed out.
Second. A modification of the theory, just stated, viz., that the general maritime law gives a lien for foreign, but not' for domestic re
Third. An ingenious variation of the theory that the distinction between foreign and domestic repairs was based upon a distinction in the general maritime law is to be found in The St. Lawrence, 1 Black, 527, 17 L. Ed. 180. Chief Justice Taney said that the judiciary •act of 1789 “left no discretionary power in the admiralty courts, or
Fourth. The distinction between foreign and domestic repairs has' •been supported upon an analogy supposed to exist between the lien for repairs and that given by the express hypothecation of a bottomry bond. In The Grapeshot, 9 Wall. 129, 19 L. Ed. 651, the libel was on a bottomry bond, and the opinion made little distinction between the conditions in which such a bond is binding and those which •give rise to the ordinary lien for repairs and supplies. After a discussion of the case of the lien’, it was said:
“We have been induced to state this doctrine of implied hypothecation somewhat fully, not only because it seemed desirable to correct a common misunderstanding of these cases, but because of the close analogy in origin, •effect, and incidents between implied hypothecation and express hypotheca*750 tion by bottomry. It is, indeed, difficult to trace, either In reason- or in the authorities, any marked line of discrimination between them.’.’
Finally, the court stated its conclusions in the form of a proposition:
“Liens for repairs and supplies, whether implied or express, can be enforced in admiralty only upon proof made by the creditor that the repairs or supplies were necessary, or believed, upon due inquiry and credible representation, to be necessary.” *
See Pratt v. Reed, 19 How. 359, 361, 15 L. Ed. 660.
Yet the wide difference between a bottomry bond and the ordinary lien for supplies is stated by Mr. Justice Curtis in The Ann C. Pratt, 1 Curt. 340, 350, Fed. Cas. No. 409:
“One method of determining whether both the implied lien and the express hypothecation by way of bottomry can be intended to exist together is to consider that the first had for its object to secure the repayment of a loan of money, which is absolutely to be repaid, either upon demand or at a stipulated time, and for which the master may pledge the security of the vessel, the owners, and himself; while a loan on bottomry does not oblige the owner personally, is to be repaid only on condition of surviving the perils, the risk of which the lender assumes, and constitutes, as the writers on maritime law have so emphatically declared, an obligation of a distinct and peculiar kind. It is true tl at in both cases liens exist; but the one is implied by law, the other is created by the act of the master; the one is security for a debt of the owners and the master, the other is a right to receive a sum of money out of the thing at risk, in case it should survive the perils, the hazard of which is assumed by the lender. The one is merely a collateral security for a simple loan; the other is a transaction standing quite by itself, not capable of being analyzed into a loan and a mortgage to secure it, and a contract of insurance, and another of partnership, undique collatis membris, but simply a contract of bottomry, unlike all of them, and resembling nothing, and being consistent with nothing, but itself.”
It is impossible to state the wide difference between the two liens more strongly. See, to the same effect, Carrington v. Pratt, 18 How. 63, 67, 15 L. Ed. 267.
The confusion between bottomry and the simple lien doubtless owes its origin in considerable measure to that rule of the English common-law courts which made suits on a foreign bottomry bond the only suits- for repairs and supplies cognizable in the English admiralty court. The limits of English admiralty jurisdiction were again transmuted into rules of substantive American admiralty law.
It has thus been shown that the federal courts have firmly established that there is a distinction in the matter of lien between repairs furnished in the home port of a vessel and repairs furnished in a port foreign to the vessel,—between what we have styled “domestic” and “foreign” repairs. It has been shown also that the distinction, whatever the reasons actually given' for it, has arisen from a confusion between the theory of the maritime law, English and continental, and the limits imposed upon the English court of admiralty by the prohibitions issued by the English courts of common law. But, though the historical basis of the distinction is demonstrably unsound, the distinction has been established by competent authority, and cannot be abolished except by legislation. We have next to consider precisely what the distinction is, and what are the conditions under which an implied lien arises by American admiralty law. For the moment, liens given by local statutes are-
First. The ports of another state were declared to be foreign ports, so that, as in the case at bar, a foreign port may be in full sight of the owner’s office,’ accessible in 10 minutes by ferry and in a minute by telephone. Thus, repairs executed in New York City on a vessel owned in Buffalo or in Ogdensburg are deemed to be executed on a domestic vessel, while repairs on a vessel owned in Jersey City are deemed to be executed on a foreign vessel. Supplies furnished in Erie to a vessel owned in Philadelphia give no lien, but supplies furnished in Camden give one. See The General Burnside (C. C.) 3 Fed. 228. The vessel may have been taken across the river for the express purpose of creating a lien. See The William Cook (D. C.) 12 Fed. 919. The supplies may be furnished in sight of the owner as he sits in his office at home, yet the vessel may be in a foreign port. Considering that the lien is enforceable only in the federal courts, the distinction between foreign and domestic ports has become in the highest degree artificial. Again, the attempt to fix the home port of the vessel, as between the port of enrolment, the home of the charterer, the home of the general owner, the home of the majority of the owners, etc., shows the artificiality of the rule. The Jennie B. Gilkey (C. C.) 19 Fed. 127. The Thomas Fletcher (C. C.) 24 Fed. 375. So, where a vessel really domestic is by misrepresentation made to appear foreign, there is a lien. McAllister v. The Sam Kirkman, Fed. Cas. No. 8,658; The Walkyrien, 11 Blatchf. 241, Fed. Cas. No. 17,092.
Second. The repairs must be necessary. In Pratt v. Reed this condition was stated with great strictness. “It is only under very special circumstances, and in an unforeseen and unexpected emergency, that an implied maritime hypothecation can be created.” 19 How. 361, 15 L. Ed. 660. But in The Grapeshot, 9 Wall. 129, 137, 19 L. Ed. 651, the expressions used in Pratt v. Reed were considerably modified. On page 141, 9 Wall., and page 651, 19 L. Ed., it was said that the repairs must be necessary, or believed to be so on due inquiry and credible representation. Necessity exists, however, if a prudent owner would order the repairs on the credit of the ship; and, if the master orders the supplies on the credit of the ship, necessity is sufficiently proved in favor of a materialman who acts in good faith. This, it is submitted, reduces the requirement of necessity for the repairs to a requirement that, in ordering them, the master is reasonably believed to be acting for the benefit of the vessel, and within the scope of his authority. .The Gustavia, 1 Blatchf. & H. 189, Fed. Cas. No. 5,876.
“It Is undisputed that The Patapsco was in a foreign port, and that the coal was ordered for her specifically by name, and delivered to the officers in charge of her. It is equally free from dispute that the supply of coal was necessary—Indeed, indispensable—to enable her to make her voyage at all. In such a case the inference is that the credit was given to the vessel, unless it can be inferred that the master had funds, or the owners had credit, and that the materialman knew of this, or knew such facts as should have put him on inquiry.” “If the credit was to the vessel, there is a lien, and the burden of displacing it is on the claimant. He must show affirmatively that the credit was given to the company to the exclusion of a credit to the vessel.”
And in The Emily B. Souder, 17 Wall. 667, 670, 671, 21 L. Ed. 683, it was said:
“The presumption of law always is, in the absence of fraud or collusion, that, where advances are made to a captain in a foreign port, upon his request, to pay for necessary repairs or supplies to enable his vessel to prosecute her voyage, or to pay harbor dues, or for pilotage, towage, and like services rendered to the vessel, that they are made upon the credit of the vessel as well as upon that of her owners. It is not necessary to the existence of the hypothecation that there should be in terms any express ■ pledge of the vessel, or any stipulation that the credit shall be given on her account. The presumption arises that such is the fact from the necessities of the vessel, and the position of the parties considered with reference to the motives which generally govern the conduct of individuals. Moneys are not usually loaned to strangers, residents of distant and foreign countries, without security, and it would be a violent presumption to suppose that such course was adopted when ample security in the vessel was lying before the parties.”
The necessity arising in Jersey City from the absence of the owner in the “distant and foreign country” of New York is not to- be spoken of seriously, yet this is the necessity which is made to create the lien. “The position of the parties considered with reference to the motives which generally govern the conduct of individuals” is the same whether the vessel is at Harlem or Hoboken. In view of the cases cited, it seems that the requirement of credit to the vessel amounts to no more than this: That the materialman must not have waived his ordinary lien. As was said by Mr. Justice Story in The Nestor, 1 Sumn. 73, 75, Fed. Cas. No. 10,126:
“It is, in the first place, said that here a personal credit was given to the master, excluding any credit to the owner or to the ship. Now, I agree that, if the libelant has given any exclusive personal credit to the master, he cannot afterwards, upon any change of circumstances or opinion, resort to the ship, or shift the responsibility over upon the owner. But prima facie the supplies of materialmen to a foreign ship—that is, to a ship belonging, or represented to belong, to owners resident in another state or country—are to be deemed to be furnished on the credit of the ship and the owners, until the contrary is proved.”
So in Carrington v. Pratt, 18 How. 63, 68, 15 L. Ed. 267, it was said:
“Now, it is well settled that the lien implied by the general admiralty law may be waived by the express contract of the parties or by necessary implication, and the implication arises in all cases where the express contract is inconsistent with an intention to rely upon the lien.”
“I have never known a ship-chandler that did not prefer two securities to oné; and it has been the usage of the trade to make their charges to the ship and owners, hoping and intending to have the security of both.”
See Peyroux v. Howard, 7 Pet. 324, 344, 345, 8 L. Ed. 700; The Sidney L. Wright, 5 Hughes, 474, Fed. Cas. No. 6,082a; The H. B. Foster, 3 Ware, 165, Fed. Cas. No. 6,291; Jones v. The Ratler, Taney, 456, Fed. Cas. No. 7,490; The Prospect, 3 Blatchf. 526, Fed. Cas. No. 11,443; The Washington Irving, Fed. Cas. No. 17,244.
Inasmuch as the affirmative giving of credit to the vessel is not required by the maritime law in general, and is generally presumed in the United States, where the other necessary conditions exist, it seems that the requirement comes to' no more than this: That the lien may be waived by the express or implied giving of credit exclusively to the owner or master. Where the supplies are ordered, not by the master, but by .the owner, it is said that there must be some affirmative evidence that the credit of the vessel was pledged. The George Farwell, 43 C. C. A. 373, 103 Fed. 882; The Roanoke, 46 C. C. A. 618, 107 Fed. 743. But there need be no express statement.. The Newport (D. C.) 107 Fed. 744; The Ella (D. C.) 84 Fed. 471, 477; The Stroma, 3 C. C. A. 530, 53 Fed. 281, 283, 284; The Havana, 35 C. C. A. 148, 92 Fed. 1007.
Fourth. It has been said that a necessity‘for pledging the credit of the vessel must exist to create the lien, but in The Lulu, 10 Wall, 192, 197, 19 L. Ed. 906, it was said:
“Where It appears that the repairs and supplies were necessary to enable the vessel to proceed on her voyage, and that they were made and furnished in good faith, the presumption is that the vessel, as well as the master and owners, is responsible to those who made the repairs and furnished the supplies, unless it appears that the master had funds on hand or at his command which he ought to have applied to the accomplishment of those objects, and that they knew such was the fact, or that such facts and circumstances were known to them as were sufficient to put them upon inquiry, and to show that, if they had used due diligence in that behalf, they might have ascertained that the master, under the rules of the maritime law, had no authority to contract for the repairs and supplies on the credit of the vessel.” And again: “Where proof is made of necessity for the repairs and supplies, or for funds raised by the master to pay for the same, and of credit given to the ship, a presumption will arise,”' said the chief justice, “in the absence of evidence to the contrary, of necessity for credit. Remarks are made in two cases decided by this court quite at variance with that rule, but it is unnecessary to comment upon those cases, or to enter into any explanation of those remarks, as it is clear that, if they assert any different rule of decision, they are in that respect directly overruled.” 10 Wall. 203, 19 L. Ed. 906.
See The Grapeshot, 9 Wall. 129, 138, 19 L. Ed. 651.
And in The Bertha M. Miller, 24 C. C. A. 641, 79 Fed. 365, 366, it was said by the circuit court of appeals for this circuit:
“The necessity of the supplies is presumed from their nature, and from the fact that the master orders them; and, in the absence of other facts, the necessity for binding the vessel may also be presumed. But if the material-*754 man knows that the captain has funds or means of his owners or of his own, credit to the vessel is not authorized, and no lien is created.”
It has been suggested (see Cuddy v. Clement, 51 C. C. A. 288, 113 Fed. 454, 462) that necessity for pledging the credit of the^ vessel is presumed when supplies are ordered by the master, but that it must be shown when they are ordered by the owner. But is there not more than a mere presumption of necessity in the case first put? Bet us suppose a vessel coaling in Jersey City under the eyes of her wealthy owner, whose ownership and wealth are known to the materialman and whose office is in a high building on the west side of New York City. In the abse'nce of some agreement to the contrary, would not a lien arise if the coal was needed for the voyage and was furnished on the order of the master? I think so, and yet, if this be true, it is idle to talk of necessity for pledging the vessel as a condition of the existence of the lien. If no lien arises in the case put, what degree of distance and what restriction of assets is needed to create the lien? Does it exist as against a vessel of the Cunard Company in a port where the company is unrepresented? The necessity is precisely the same whether the coal is ordered by the owner or the master. In Cuddy v. Clement the court found that the contract for coal was made in fact on the credit of the owner; that is to say, that any lien on the vessel was waived. Upon the whole it seems that the fourth requirement amounts but to this: That there is no lien where the materialman knows, or ought to know, that the.master has funds which he may properly apply to payment for the supplies. The requirement is one of reasonable good faith. If any more is required by Thomas v. Osborn, 19 How. 22, 31, 15 L. Ed. 534, the expressions in that case must be deemed modified by those in The Eulu. See Berwind v. Schultz (D. C.) 25 Fed. 912, a libel in personam.
Fifth. The requirement of the absence of the owner is the most difficult and important. It has been put upon two grounds entirely unconnected:
(a) In Ferry Co. v. Beers, 20 How. 393, 401, 15 L. Ed. 961, it was said:
“It must be borne in mind, that liens on vessels incumber commerce, and are discouraged; so that, where the owner is present, no lien is acquired by the materialman; nor is any where the vessel is supplied or repaired in the home port. The lien attaches to foreign ships and vessels only in favor of the carpenter who repairs in a case of necessity and in the absence of the owner.”
And in Pratt v. Reed, 19 How. 359, 361, 15 L. Ed. 660, it was said;
“These maritime liens in the coasting business and in the business upon the lakes and rivers are greatly increasing; and, as they are tacit and secret, are not to be encouraged, but should be strictly limited to the necessities of commerce which created them. Any relaxation of the law in this respect will tend to perplex and embarrass business, rather than furnish facilities to carry it forward.”
This is to say that a secret lien is so undesirable that it can be allowed only in case of a necessity which is evidenced, in part at least, by the absence of the owner. In Pratt v. Reed the master was owner, and this fact, though not conclusive, was deemed to make
(b) On the other hand, in The Valencia, 165 U. S. 264, 271, 17 Sup. Ct. 323, 325, 41 E. Ed. 710, it was said that:
“In the absence of an agreement, express or implied, for a lien, a contract for supplies made directly with the owner in person is to be taken as made ‘on his ordinary responsibility, without a view to the vessel as the fund from which compensation is to be derived.’ ”
And in The Kalorama, 10 Wall. 204, 213, 214, 19 L. Ed. 941, it was said:
“It is no objection to his [the master’s] authority that he acted on the occasion under the express instructions of the owner, nor will the lien of those who made the repairs and furnished the supplies be defeated by the fact that his authority emanated from the owner, instead of being implied by law.” “When the owner is present, the implied authority of the master for that purpose ceases; but, if the owner gives directions to that effect, the master may still order necessary repairs and supplies, and, if the ship is at the time in a foreign port, or in the port of a state other than that of the state to which she belongs, those who make the advances will have a maritime lien, if they were made on the credit of the vessel.” “Implied liens, it is said, can be created only by the master, but if it is meant by that proposition that the owner, or owners, if more than one, cannot order repairs and supplies on the credit of the vessel, the court cannot assent to the proposition, as the practice is constantly otherwise. Undoubtedly, the presence of the owner defeats the implied authority of the master, but the presence of the owner would not destroy such credit as is necessary to furnish food to the mariners, and save the vessel and cargo from the perils of the sea.”
And the extended discussion in The Kate, 164 U. S. 458, 465-470, 17 Sup. Ct. 135, 41 E. Ed. 512, treats the lien as created by authority confided in the master by the owner. This is to say that the nonexistence of the lien in the presence of the owner arises from a want of authority in the master to bind the vessel when the owner himself is present. This appears to be the theory stated in The Lulu, 10 Wall. 192, 200, 19 L. Ed. 906, and in Insurance Co. v. Baring, 20 Wall. 163, 164, 22 L. Ed. 250, where want of authority is treated as the only limitation on the master’s authority. See The Eclipse, 3 Biss. 99, Fed. Cas. No. 4,268; The Ludgate Hill (D. C.) 21 Fed. 431; The Isaac May, Id. 687; The Ella (D. C.) 84 Fed. 471; The Marion S. Harris, 29 C. C. A., 428, 85 Fed. 798; The North Pacific, 40 C. C. A. 510, 100 Fed. 490. It is this theory, and not (a), which seems now to be accepted by the federal courts. Even in The Mary Morgan (D. C.) 28 Fed. 196, where the absence of the owner as a condition of the lien was most strongly insisted on, it was admitted that the owner might create a lien by parol. See The Havana (D. C.) 54 Fed. 201. The confusion into which a conflict between the two theories brought the courts is illustrated by Thomas v. Osborn and other cases, where the master was owner in whole or in part. If .the first theory be sound, there „is no lien; if the second, the lien has a double authority. Upon theory (b), the
The history of maritime liens for supplies and repairs has thus been traced. Their origin is ancient, and not precisely ascertained. Whatever was their connection with bottomry, they were early limited by different conditions, and they produced different results. They were recognized, both in England and on the continent, to bind both domestic and foreign vessels, and have generally bound both upon the continent. Until confusion between jurisdiction and substantive law had bred ignorance of the latter, no one disputed that both were bound by the admiralty law of England, but that law was denied enforcement by the English courts of common law in the case of both foreign and domestic repairs (saving only cases of foreign bottomry and of a- sale of the vessel for other sufficient reasons). In this country the colonial courts of admiralty, though theoretically bound by the English limitations, may yet have been less hampered in practice by prohibitions. When, after the adoption of the federal constitution, the federal courts, with much difference of opinion, came to disregard the limits of English admiralty jurisdiction, they yet did not free themselves altogether from the habits of thought which these limits had imposed. Questions of jurisdiction and of substantive law were thus confused here as well as in England, and that which the courts of admiralty had been forbidden to do by prohibition was believed to have been left undone voluntarily. Thus a distinction was established between foreign and domestic repairs, elsewhere unknown (except perhaps in Scotland), and this distinction was further confused by a distinction -between libels in rem and in personam. From this confusion has emerged in the United States a theory, not consistently developed as yet, that, subject to not a few presumptions and counter presumptions, exceptions and subexceptions, a vessel is ordinarily liable for her repairs and supplies. Here the personification of the vessel has been more fully developed than in England, and it has been made the foundation of our admiralty law. (This personification, so far, as it existed in England, has recently been denied effect in The Gemma (1899) P. D. 285, with what results to the English admiralty law it remains to- discover.) The exceptions to this general rule of the vessel’s liability for repairs and supplies exist for the protection of the owner of the vessel, and for his protection only, although, if .the exception is established, the materialman is deemed to have waived his lien, and this waiver may be availed of by other creditors of the owner. If the owner refuses to permit the creation of the lien or right to proceed against the vessel, and this refusal is or ought to be known to the materialman, no lien arises, or else it is deemed to be waived. From the existence of certain circumstances this refusal of the owner and the consequent nonexistence or waiver of the lien are presumed, but the effect to be given these circumstances may vary with local customs. In any event, the assent of the owner to the existence of the lien, actual or reasonably implied, suffices for its creation.
•It cannot be pretended, of course, that this review and discussion of the history and law of maritime liens for repairs and supplies is
It remains to consider the case at bar in the light of the results already reached. Did this owner assent to the lien in this case ? Did he lead the materialman to believe in his assent? Ought the materialman to have known that the owner dissented? All the circumstances by which the lien is ordinarily created or from which it is ordinarily presumed are here present,—the foreign port, the order of the master, the absence of the owner, the need of supplies if the vessel is to navigate, the necessity of pledging the credit of the vessel if the supplies are to be procured. To this the defense is: Want of authority in the master, known to the materialman, to create the lien upon the vessel. What is meant by the master’s want of authority in a matter like this? No law ever provided baldly that the repairer of a vessel should always have a lien. My vessel lies at a wharf out of repair, and she is repaired by a mere trespasser. In general he has no lien under any system of law. The repairs must be ordered or authorized by some one in authority, and the master is ordinarily such a person either at home or abroad; that is to say, the master ordinarily has authority to license the act of repairing. If authorized by him, it is no longer a trespass. If the owner has given the master express authority to contract for repairs or supplies, the owner is bound personally. If the repairs are within the scope of the authority which the maritime law attributes to the master, and that authority has not been specially limited, the owner or the charterer, that person of whom the master is agent, is personally bound to pay for the repairs. All this is a development of the ordinary law of agency. By English law it seems that the owner is bound, even if the advances for repairs, etc., are made in a domestic port. Abb. Shipp. (7th Am. Ed.) 186; Arthur v. Barton, 5 Mees. & W. 138; Johns v. Simons, 2 Q. B. 425; The Lochiel, 2 W. Rob. Adm. 45. See Speerman v. Degrave, 2 Vern. 643. The owner is bound by the act of his authorized agent, as if he had ordered the repairs himself. If the owner is actually present in the port, something more than the ordinary implied authority of the master may be necessary to bind the owner for repairs, even if not for supplies. By a peculiarity of the maritime law the master also is bound individually, but this peculiarity need not concern us here. Whatever be the authority ordinarily given to a master, if in the particular case he has no authority to bind his principal, and if the material man knows this want of authority, the owner or principal cannot be held. This also is the familiar law of agency. So, if the master has no authority to permit the materialman to make the repairs, and the materialman, who makes them on the master’s order, knows this want of authority, it is hard to see how he can justify his trespass. If he knows that the master is forbidden to create a debt binding upon the owner, he cannot hold the owner. If he knows that the master is forbidden to permit the creation of a lien on the ship, he cannot claim a lien. Put the case in another way: If the materialman knows that the master is forbidden to repair, even in a foreign port, it would seem
The mere fact that a vessel is known to be under charter does not deprive of his lien one who, in a foreign port, furnishes it with supplies on- the order of the master. The George Dumois, 15 C. C. A. 675, 68 Fed. 926; The Philadelphia, 21 C. C. A. 501, 75 Fed. 684. But if a charter or other contract limits the authority of the master in the matter of buying coal, and forbids him to buy it except upon the ^personal credit of the charterers only (and perhaps on his own personal credit), and if the libelant has notice of-this limitation, it would seem that the lien either does not arise or is impliedly waived. In The Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512, Mr. Justice Harlan said:
“Courts of admiralty will not recognize and enforce a lien upon a vessel when the transaction upon which the claim rests originated in the fraud of the master upon the owner, or in some breach of the master’s duty to the owner, of which the libelant had knowledge, or in respect of which he closed his eyes without inquiry as to the facts. If no lien exists under the maritime law, when supplies are furnished to a vessel upon the order of the master under circumstances charging the party furnishing them with knowledge that the master cannot rightfully, as against the owner, pledge the credit of the vessel for such supplies, much less is one recognized under that law where the supplies are furnished, not upon the order of the, master, but upon that of the charterer, who did not represent the owner in the business of the vessel, but who, as the claimant knew, or by reasonable diligence could have ascertained, had agreed himself to provide and pay for such supplies, and could not, therefore, rightfully pledge the credit of the vessel for them.”
The learned justice also quoted from an opinion rendered by Judge Sprague in this court in The Sarah Starr, 1 Spr. 453, 455, Fed. Cas. No. 12,354, where it was said:
“In giving credit to the vessel and owners, the materialman should act in good faith,' and he would not be deemed to act in good faith if he knew that the master had funds wherewith to pay for the supplies, or if facts were known to him which should create suspicion, and put him upon inquiry, when such inquiry would have led -to the knowledge that the master had funds, and has no right, therefore, to obtain supplies on credit. That is, if the materialman had had knowledge that the master was acting in bad faith towards his employers, or knew of circumstances which ought to admonish him to make inquiry that would have led to such knowledge, then he would be af*761 fected with bad faith, as colluding with the master, and aiding him in violating his duty to his owner. But if the materialman had no reason to suppose that the master was violating his duty in obtaining a credit, he might, upon request of the master, trust to the vessel and owners, and a lien would thereby be created.” 164 U. S. 469, 17 Sup. a. 139, 41 L. Ed. 512.
See The Columbus, 5 Sawy. 487, Fed. Cas. No. 3,044; Swift v. The Albus, Fed. Cas. No. 13,694; The S. M. Whipple (D. C.) 14 Fed. 354; The Alvira (D. C.) 63 Fed. 144.
In the Bombay (C. C.) 38 Fed. 863; Id. (D. C.) 38 Fed. 512, it is not stated if the libelants knew that the vessel was under charter, and it is said expressly that they had no notice of its provisions. By the French law it seems that the vessel is not bound for supplies ordered by the charterer unless the supplies are needed for the ship, apart from the special needs of the charterer, and unless the owner, if present, would have ordered them. Desj. I, 256.
One argument in support of the master’s authority to bind the vessel, even when expressly forbidden to do so, should not be overlooked. Suppose the charter provides that the owner shall pay the wages of the crew. To put this charge upon the charterer is not uncommon. Suppose the crew to have knowledge that the charter forbids the charterer to create a lien for wages, it may be asked if the crew would lose their lien. In the case put they would have that knowledge of the master’s limitation of authority which the materialmen are held to have had in the case at bar. Why should they fare any better? It is probable that the seamen’s lien on the vessel would exist even in the case put,—that is to say, even though they knew that the master, in- permitting it to arise, was guilty of bad faith. The seamen would be protected, however, not by the logical result of admitted principles of general law, but by reason of the favor shown to them ■ in a court of admiralty. The wages of seamen are secured upon the vessel in many jurisdictions by a statute which admits of no exception. Taking it as established, then,, that the vessel is not bound even for necessary supplies furnished in a foreign port on the master’s order, provided the material-man knows that the master is forbidden to create a lien for the purpose, we next consider if the master’s authority was so limited in this case. The limitation here contended for by the claimant is found in the charter party, whose material parts are as follows:
“(2) The owner shall provide and pay for all the provisions, water, wages, and consular shipping and discharging fees of the captains, officers, engineers, firemen, and crew of said tug; shall pay for the insurance of the same; also for all ship, cabin, engineroom, and deck stores; and maintain said tugs in a thoroughly efficient state in hull and machinery for and during the service, and including the necessary hawsers and lines for mooring and towing.
“(3) The charterer shall provide and pay for all the coals, port charges, pilotages, agencies, and commissions, and all other charges whatsoever, except those before stated, and shall likewise, in case the owner deems it necessary to insure said tugs, or any of them, against war risks, pay the additional cost of the premium for such insurance.”
“The charterer shall accept and pay for all coals in the tugs’ bunkers on delivery, and the owner shall, on the expiration of this charter party, pay for all coal left in the bunkers, each at the current market prices at the port of Boston when said tugs are delivered to them.”
“(6) The captains of-said tugs, although appointed by the owner, shall be*762 under the orders and direction of the charterer as regards employment, agency, or other arrangements, and the charterer hereby agrees to indemnify thq owner from all consequences or liabilities that may arise from any irregularities in ship’s papers, or from the captains signing bills of lading, or otherwise complying with the charterer’s directions.”
The court has to consider if this language is (i) a limitation on the authority of the captain, or (2) merely a contract made by the charterer with the owner that the former will pay for supplies in the first instance, and, in case this is not done for any reason, will reimburse the owner for supplies paid for by the latter. The language of the clauses might not unreasonably bear either construction. On general principles there is much to be said in support of the contention that a clause in a charter like that above quoted, providing that the charterer shall supply the vessel with coal, is intended merely as a contract between charterer and owner, and does not limit the general authority of the master to order coal for the vessel upon the vessel’s credit in a foreign port. In The Kate, above cited, the provisions of the charter were much like those in this case, and the supreme court said at page 465, 164 U. S., page 138, 17 Sup. Ct., and page 512, 41 E. Ed.;
“We are of opinion that, as the libelant knew, or, under the circumstances,is to be charged with knowledge, that the charter party under which the Kate was operated obliged the charterer to provide and pay for all the coal needed by that vessel, no lien can be asserted under the maritime law for the value of coal supplied under the order of the charterer, even if it be assumed that the libelant in fact furnished the coal upon the credit both of the charterer and of the vessel. As the charterer had agreed to provide and pay for all coal used by the vessel, he had no authority to bind the vessel for supplies furnished to it. His want of authority to charge the vessel for such an expense was known or could have been known to the libelant by the exercise of due diligence on its part. Under the circumstances, the libelant was not entitled to deliver the coal on the credit of the vessel, and its attempt to hold the vessel liable is in bad faith to the owner. The law cannot approve or encourage such an attempt to wrong the owners of the vessel. Neither reason nor public policy forbade the owner and the charterer from making the arrangement evidenced by the charter party of December 15, 1892. The master of a ship is regarded as ‘the confidential servant or agent of the owners, and they are bound to the performance of all lawful contracts made by him relative to the usual employment of the ship, and the repairs and other necessaries furnished for her use. This rule is established as well upon the implied assent of the owners as with a view to the convenience of the commercial world.’ The Aurora, 1 Wheat. 95, 101, 4 L. Ed. 45. ‘The vessel must get on,’ and ‘the necessities of commerce require that, when remote from the owner, he [the master] should be able to subject his owner’s property to that liability, without which, it is reasonable to suppose, he will not be able to pursue his owner’s interests.’ The St. Jago de Cuba, 9 Wheat. 409, 416, 6 L. Ed. 122; The J. E. Rumbell, 148 U. S. 1, 13 Sup. a. 498, 37 L. Ed. 345. When, therefore, supplies are furnished to a vessel in a foreign port upon the order of the master, nothing else appearing, the presumption is that they were furnished on the credit of the vessel and of the owners, and an implied lien is given. But no- such necessity can be suggested, and no such reasons urged, in support of an implied lien for supplies furnished to a charterer, when the libelant at the time knew, or by such diligence as good faith required could have ascertained, that the party upon whose order they were furnished was without authority from the owner to obtain supplies on the credit of the vessel, but had undertaken, as between itself and the owner, to provide and pay for all supplies required by the vessel.”
“Although the libelants were not aware of the existence of the charter party under which the Valencia was employed, it must be assumed, upon the facts certified, that by reasonable diligence they could have ascertained that the New York Steamship Company did not own the vessel, but used it under a charter party providing that the charterer should pay for all needed coal. The libelants knew that the steamship company had an office in the city of New York. They did business with them at that office, and could easily have ascertained the ownership of the vessel and the relation of the steamship company to the owners. They were put upon inquiry, but they chose to shut their eyes and make no inquiry touching these matters, or in reference to the solvency or credit of that company.”
See Beinecke v. The Secret (D. C.) 3 Fed. 665, quoted with approval by the supreme court in the last-named case; The Cumberland (D. C.) 30 Fed. 449, 455; The William Cook (D. C.) 12 Fed. 919; Neill v. The Francis (D. C.) 21 Fed. 921; The Solveig, 43 C. C. A. 250, 103 Fed. 322; The Stroma (D. C.) 41 Fed. 599; The Pirate (D. C.) 32 Fed. 486.
In other cases it was assumed that, if the materialmen had had knowledge of the existence of a charter like that in this case, he would have had no lien, although, as no knowledge on his part was established, the lien was allowed. The North Pacific, 40 C. C. A. 510, 100 Fed. 490; Norwegian S. S. Co. v. Washington, 6 C. C. A. 313, 57 Fed. 224; The Ellen Plolgate (D. C.) 30 Fed. 125. These cases construe the language used in this charter to forbid the master to pledge the credit of the vessel for the supplies he orders. Many of these cases, and others heretofore cited, also hold that the materialman is affected by the limitations of the charter if he has notice of them. There is much authority for the proposition that this charter, if brought to the notice of the materialman, will prevent him from getting a lien. It is true that there is authority upon the other side, and that the opinions of the supreme court just cited are not quite explicit. In the City of New York, Fed. Cas. No. 2,758, the lien was upheld in the case of a charter like this. The vessel was in a really distant port, however, and was in such peril that the limitation imposed on the master’s authority by the charter may have been treated as inapplicable within the intent of the parties. The opinion is short. See The Wm. Cook (D. C.) 12 Fed. 919, 920. In The Eucia B. Ives, Fed. Cas. No. 8,590, th.e lien was upheld, but whether in reliance on the express terms of the statute or upon a doubt as to the meaning of the charter is not clear. In The Monsoon, Fed. Cas. No. 9,716, decided by Judge Sprague, in which that distinguished judge upheld a lien upon a chartered vessel, it is doubtful if the decision was rested upon a supposed inability of the owner to limit the master’s authority, or upon a construction of the charter in quescion. If the former, the case stands substantially alone; if the latter, it is opposed to the great weight of authority. See The H. B. Foster, 3 Ware, 165, Fed. Cas. No. 6,291; Rozo v. The Neversink, Fed. Cas. No. 12,079; The India (D. C.) 14 Fed. 476; Id. (C. C.) ,16 Fed. 262. The language of some of the opinions last cited is not
That a chartered vessel is ordinarily bound for the price of supplies ordered for her use in a foreign port by the master was expressly decided in this circuit in the case of The Philadelphia, and this is the law where the charter is silent upon the subject. Where, however, the charter limitation is that found in this case, and where the coal is ordered, not in a port of distress, where it may reasonably be supposed that the further prosecution of the voyage is for the interest of' the owner as well as for that of the charterer, I am of opinion that no lien exists.
.Libel dismissed.
30 Fed. Cas. 1189.
30 Fed. Cas. 1171.