7 Cow. 697 | N.Y. Sup. Ct. | 1827
The mere circumstance of the naked legal title to the vessel remaining in Hicks and his associates, to secure the purchase money for which she had been sold, unquestionably would not render them liable as owners, on the contracts of the master, or for the consequences of his negligence and unskilfulness. This precise point was settled in Wendover & Hinton v. Hogeboom and others, (7 John. 308,) and in Leonard & M’Cartee v. Huntington, (15 John. 298.) In the first case, the action was brought against the defendants as owners of a vessel called The Convention, for sails furnished by the plaintiffs, who were sailmakers. The sails were furnished' on the order
So, in Leonard & M‘Cartee v. Huntington and others, the action was brought for work and labor and supplies, in repairing a vessel, against the defendants as owners; and it appeared that the register of the vessel was in their names; that the supplies were furnished in September, 1815; that on the 4th of May preceding, Huntington had sold the vessel to one Bingham, for 6,300 dollars, payable at different periods; and he was, by the contract, to give him a bill of sale of the brig, when the consideration money was paid. That was not wholly paid until the 4th of October, 1815; and on that day the bill of sale was executed, and the contract consummated. The repairs were ordered by Bingham; and, it will be perceived, were furnished before the bill of sale was delivered. Yet the defendants were held not to be responsible as owners.
These cases settle two points: 1. That the ownership of a vessel is not determined by the register; (vid. also 14 John. 201;) 2. That a regular bill of sale is not essential to transfer the property in a vessel, so as to exempt
The same principles are recognized in Reynolds v. Toppan, (15 Mass. Rep. 370.)
The only difference between the cases stated, and the one at bar is, that, in this ease, it was agreed that the purchaser should pay for the vessel as fast as he could earn the money with the vessel. In the other cases, *the time of payment was fixed, without any reference to the earnings of the vessel. But I do not perceive how this can vary the case. It did not make the vendors partners with the vendee. They were not to share the profits of the vessel; nor did they acquire, by that stipulation, a lien upon her earnings, or a right to interfere- with, or control her operations. It was a mere stipulation, on the part of the vendors, that they should wait for their pay until the vendee could make it out of the vessel.
But at all events, it could amount to no more than a mortgage of the vessel; and it is well settled that the mortgagee of a ship, out of possession, is not liable for her supplies. (M'Intyre v. Scott, 8 John. 159. Jackson v. Vernon, 1 H. Bl. 117, and Chinnery v. Blackburne, id. note (a).
The charge of the judge was, therefore, erroneous; and a new trial must be granted.
.New trial granted.
Upon this question, Mi’. Kent, (3 Com. 134, et seq.,) remarks:—“ It has been a disputed question, whether the mortgagee of a ship, before he takes possession, be liable to the burdens, and entitled to the benefits belonging to the owner. In the case of Chinnery v. Blackburne, (1 H. Blacks. Rep. 117, note,) it was held by the K. B. that the mortgagor in such a case, and not the mortgagee, was to be deemed owner, and entitled to the freight, and liable for the repairs and other expenses. The same decision was made by the C. B. in Jackson v. Vernon, (1 H. Blacks. Rep. 114.) But Lord Kenyon, in Westerdell v. Dale, (7 Term. Rep. 306,) entertained a different opinion, and he considered the mortgagee, whether in or out of possession, to be the owner, and - entitled to the freight, and bound for the expenses of tbs ship. The weight of our American decisions, has been in favor pf the position, that a mortgagee of a ship out of possession is not liable for repairs or
“ There are analogous cases which throw light upon this subject. Thus, in Young v. Brander, (East’s Rep. 10,) the legal title remained for a month after the sale in the vendor upon the face of the register, because the vendee had omitted to comply with the forms prescribed by the registry acts.
Vid. Ingersoll v. Van Bokkelin, ante, 670.