5 Wend. 315 | Court for the Trial of Impeachments and Correction of Errors | 1830
The following opinions were delivered:
The questions arising from the facts in this case are, 1. Whether the master was a wrongdoer, so as to deprive him of any claim upon the owners or otherwise, for his wages and advances; 2. Had he any lien on the brig or freight for the wages, primage and advances, or either of them ? and 3. Does the decree of the admiralty court deprive him of any right which he otherwise might have had against the defendant at the time this suit was commenced 1
It is suggested by the counsel for the master, that the advances were made at New-Orleans where the incipient right to the freight commenced, and that by the Spanish civil law, which prevailed there, the master had a lien on the brig and her freight both for his wages and advances. There might perhaps be some weight in this suggestion if the brig was owned at New-Orleans and the voyage had commenced and
The right of the master to hypothecate the ship and freight and even the cargo, in a foreign port in case of necessity, for the purpose of procuring supplies or repairs to complete the voyage, is perfectly well settled ; and by the maritime law, even without any express hypothecation, those who have furnished the necessary supplies under such circumstances, or whose property has been applied to the same object by a forced loan, have a lien or privilege which may be enforced against the ship or freight by a proceeding in rent. It is equally well settled that the seamen or mariners have a lien for their wages and sustenance which has a preference over all other claims. Madonna D’Idra, I Dods. Rep. 37. But the question whether the master has a lien on the ship or freight for supplies furnished by himself, or on his own credit in a foreign port, does not appear to have been settled in England previous to the revolution which separated us from that
The decisions in the courts of our own country have not been uniform as to the lien of the master, though I think the weight of authority is against the lien for wages, but in favor of it for supplies furnished by the master, or on bis own personal credit, in a foreign port. In the case of Gardner v. The Ship New Jersey, which came before the admiralty court of the Pennsylvania district in 1806, 1 Peter’s Adm. Rep. 223, Judge Peters, hesitatingly, allowed the master to retain out of the proceeds of the ship the amount which he had advanced for seamen’s wages, supplies and pilotage; but he decided against the claim of the master for his own wages, the creditors of insolvent owners being interested in the surplus. In the case of The Grand Turk, in the circuit court of the U. Slates for the southern district of New-York, 1 Paine’s R. 72, Judge Livingston decided that the master had no lien for his wages and perquisites, but declined expressing any opinion as to his lien for advances and responsibilities in a foreign port, that part of the case being disposed of on other grounds. A similar decision was made by the supreme court of Pennsylvania in the case of Fisher v. Willing, 8 Serg. Rawle, 118. In that case the decision involved the question as to the lien of the master for his wages on the freight as well as on the ship, although the question as to the lien on the freight was not discussed in the opinion of the court. The lien of the master on the freight, for advances and responsibilities in a foreign port, was distinctly asserted by Judge Story, in the more recent case of the ship Packet, 3 Mason’s Rep. 255. He thinks that, on principle, the master is also entitled to a preference as against the ship ; though the correctness of his opinion as to both appears to be doubled by the very able and distinguished commentator on American law, 3 Kent’s Comm. 128, 9. The only case I have been able to find of a direct adjudication in favor of the master’s lien, either on the vessel or freight for his own wages, is that of Lewis v. Han
The right of the master to retain the freight money, after it has come into his possession, for a general balance against the owner, and his lien upon the cargo to compel payment of the freight as the agent and acting in behalf of the owner, are frequently mentioned in the reports, and are sometimes confounded with the lien or claim of the master on (he freight as against the owner, before it has been actually received from the shipper. The two first are in the nature of common law liens ; and if the master part with the money in the one case, or the possession of the goods in the other, the lieu is gone : but the lien on the freight, as such, by the maritime
In a case where the claim is for services in navigating the ship, or for advances for its safety, repairs, or other necessary expenses, I know of no principle which would give an equitable lien on the freight, except as incidental to a lien on the ship, and as a part of the proceeds or profits of the ship by way of accretion. Hence I conclude that in cases like the present, if there is no equitable lien on the ship, there cannot be on the freight. Nearly one hundred years since it was decided in England that the master had no lien on the ship for his wages ; Kelyng’s Rep. 226 ; 2 Barnard’s Rep. K. B. 160 ; and such now appears to be the settled law both in England and in this country. The Favorite, 2 Rob. Adm. Rep. 232, and the cases before cited. I think, therefore, the judgnient of the supreme court was wrong, so far as it included the wages of the master. Again ; nearly half of those wages accrued during the outward voyage, while Andrews was the owner of the brig; and if there was a lien on the freight, and not on the ship, for the payment thereof, that part should have been deducted from the outward freight which belonged to him, and not charged upon that belonging to Shaw. The primage belonged wholly to the master, by the agreement under which he took command of the brig.
The right of lien or preference, both against the ship and freight, to indemnify the master for advances and personal re
Although the recent decisions in England are against the master’s lien, even for supplies necessarily furnished abroad, the nisi prius opinion of Lord Kenyon in 1801, While v. Baring, 4 Esp. 22, and the doubts of Lord Eldon in the case of Hussey v. Christie, in 1807, 13 Ves. 594, shew that the law was not thus settled in that countiy previous to the American revolution. Indeed, the English judges who certified their opinion to the lord chancellor in the last mentioned case, seem to take it for granted there can be no lien upon the ship unless there is an actual hypothecation by the master; but such is certainly not the law of the admiralty courts as at present understood. There is a very early case in the English reports, which I think in principle is hostile to these later-decisions there; and shows that in one'case, at least, (he master in a foreign country or on the high seas might acquire a lien on the ship in his own favor and by his own act. I allude to the case of Wilson v. Bird, in 1694, 1 Ld. Raym. R. 22. In that case, the ship was taken by a French privateer, and was ransomed by the master for £1300. To secure the payment of the ransom, the master did not indeed pledge his personal security, but he pledged his person, and was detained in France for the payment. Being unable to recover the money to redeem his person, by a suit against the owner of the ship, he filed a libel against the ship itself, on the ground of his implied lien thereon for his indemnity, and sentence was given in his favor.' On a motion in the king’s bench for a prohibition it was refused, on the ground that the master had a claim upon the ship for his redemption, although it was by his own contract. See, also, Molloy, b. 1, ch. 4, § 6, and
Whether, under the particular circumstances of this case, the admiralty court had any jurisdiction to make a decree in relation to the freight, it is not necessary now to determine. The freight monies were never actually attached or under the control of the court. Neither Depau or Van Bokkelin were parties to the suit; and as to the freight, it was only a proceeding in personam between the parties thereto. The right of the master, as against Van Bokkelin, had become vested before the filing of that libel. As the latter was not a party, and would not have been bound by the decision if the sentence of the court had been in favor of the master’s right, he cannot urge as an estoppel that the latter should have insisted upon his lien before that court. It is a rule of evidence that no person can have the benefit of a verdict, or of the proceedings in a suit, who would not have been prejudiced thereby if the decision had been the other way. 1 Munf. R. 394. 1 Hen. & Munf 165.
If this court should agree with me in the opinion above expressed, the judgment of the supreme court must be reversed for the allowance of the wages of the master, although for the residue it be correct; and if the damages are so blended that they cannot be severed, a venire de nova must be awarded.
The counsel for the plaintiff in error has presented us with eleven points on which he relies to shew error in the decision of the court below; the substance of which are, first, that the defendant proceeded in
appears by the case, however, that Ingersoll was appointed to the command of the vessel by Barker and Hopkins, the agents of Robert El well, of Boston, the then owner of the brig. The sale of the vessel to Driggs, although unauthorized and fraudulent, could not have been known to be such by Ingersoll; at least, there is no proof that he had such knowledge, or that he knew of the revocation of the power from Elwell to Barker and Hopkins. The brig sailed from New-York in June, 1822, and the sale of the vessel to Shaw was on the 22d of July thereafter, about the time of her arrival at New Orleans; the vessel left New-Orleans on the 8th of August, only seventeen days after the sale to Shaw. Under these circumstances, it is hardly probable that the captain knew of any fraud having been committed in the sale of the vessel; and I am at a loss to perceive, therefore, upon what evidence it is said that he proceeded on the voyage in defiance of the true owner, when no proof whatever was produced on the trial of the cause that Shaw made any attempt to communicate information to the captain that he was the owner of the vessel; and when, if he had attempted it, the time between the date of his purchase and the departure of the vessel from New-Orleans was scarcely sufficient to admit of its reaching the captain before he left there.
Second. It is objected that the proceedings in the court of admiralty divested the captain of every possible right to the freight money. These proceedings, as I apprehend, had nothing to do with the claims of the captain for the disbursements he made for the vessel, but were instituted for the purpose of ascertaining who was the rightful owner; and the court having decreed to Shaw the possession of the vessel, as legal owner, he became liable to all the responsibilities incident to that character.
Third. It is objected that there is no rule of law which gives the master a lien on the shipper’s goods until the freight is paid ; and that the doctrine established by the court below is unsupported by any American cases. The responsible
The liability of the master, and the often absolute necessity of his obtaining supplies for the use of the ship, in order that she may prosecute her voyage in safety, is the reason, as I apprehend, why the law has given him the right to detain the freight money for the purpose of paying anj>- expense lie may incur for the benefit of his owner, and also to bind the ship, the goods on board of her (under certain circumstances) as well as his owners, for these expenses.
If I have not entirely misunderstood the language of the cases I have examined, the preceding is the substance of the decisions of the courts in this country, as well as in Great Britain.
In the case of Lewis v. Hancock, 11 Mass. R. 72, it was held that the master of a vessel in which goods are carried on freight is, by the terms of the contract, entitled to demand and receive the freight money or price at which the goods are to be carried and delivered; and be may retain the goods until the freight is paid; and when it is paid, he has the same right in the money that a factor or consignee has in the goods of the principal or consignor for whom money has been advanced, or any liabilities have been incurred, in consequence of the employment or consignment.
In the case of Milward v. Hallett, 2 Caines’ R. 80, Judge Thompson said: “ There is no doubt but the master of a vessel may make his owners personally responsible for nec.es
The cases to which I have referred, I think, establish the following conclusions: That the master of a vessel has a lien on the freight for any disbursements he may have made on account of the vessel, and may retain the money until his expenditures for that object are paid; and he may also keep possession of the goods until the amount of freight has been received'by him; and although he may have delivered a part of the goods to the consignee, he may retain the remainder until the whole of the freight money has been paid to him ; and if the consignees of the cargo, after notice of the master’s claim, shall pay the freight to the owner, they will be liable to refund so much as will satisfy his claim.
In the case under consideration, the defendant in error, as master of the brig William Henry, incurs responsibilities for the repairs and other necessary expenses of the vessel at New-Ovleans; he receives a cargo of tobacco on freight for New-York, and on his arrival at that port., he finds a claim set up by Shaw to the vessel and her earnings. The defendant, having been denied the payment of his disbursements and expenses on account of the vessel, by the claimant Shaw, he delivers three fourths of the tobacco to the consignee, and retains the remainder as security for the freight and primage of the whole. In all this, he has acted in accordance with the settled law, as it. has appeared to me from the cases I have cited; and I am of opinion, therefore, that the judgment of the court below ought to be affirmed, so far as it decrees to the master the payment of his expenses and disbursements.
The right of the defendant in error to recover in the court below has been questioned on various grounds taken by counsel; bnt the important question is, was the captain of the brig William Henry justi
A question was raised as to the effect of the libel filed in the district court of the United States. The object of this libel was to settle the title to the vessel, and to recover possession of her by Shaw, to whom she had been sold in the absence of the captain ; and as he was a party to that libel suit, it was contended he is barred from recovering here. The only question settled by that court was the ownership of the vessel. The question of lien on the fieight did not come before that court nor enter into its decision ; nor was Depau a party to that libel, from whom the freight was due as consignee.
Another point made in this case was, that Ingersoll, the captain, was a trespasser in proceeding to New-Orleans with the vessel, and, acting in his own wrong, was not entitled to the claim he has set up in this case. This point is not, I think, sustained by the facts of the case. He was regularly employed by the former owners, or their agents, and took possession on the 3d of July, 1822, before the date of Shaw’s bill of sale; and Shaw, instead of rescinding his command afterwards, acquiesced in the voyage, and stated in the libel which be filed that Ingersoll took command of the vessel by virtue of the agreement with the former owner, and was at the time of the conveyance to him, and continued to be the commander thereof.
It further appears that Shaw received the earnings of the vessel after her arrival at New-York, and that the conduct of the captain was that of a judicious, prudent and careful master.
The main question then is, has a captain of a vessel a lien on the freight for necessary disbursements and liabilities entered into in a foreign port on account of such vessel ?
The captain is always the agent of the owner of the ship; but not of the cargo, unless specially so created, or unless from necessity he is obliged to act in the capacity of captain
The captain’s claim for his own wages is founded upon his contract with the owner; and being a personal claim, he has no lien upon the ship in case they are not paid ; but bis claim against the owner for necessary disbursements and repairs for the ship abroad is not founded on contract, but arises from necessity and rests upon a different principle. It is settled law, and has never been disputed, that a person furnishing repairs or necessaries for a ship in a foreign port has a three-fold claim: a right of action against the captain, against the owner, and a lien upon the ship and cargo; and that the captain, in order to pay for such necessary repairs and charges, may hypothecate the vessel, cargo and freight, by bottomry or respondentia bond; that such a bond is a lien upon the ship and cargo and follows her home, and has a right to be paid before any other claim except seamen’s wages. If the captain has this power, what reason is there why he should not have the same lien in case he pays for the repairs with his own money, or becomes personally liable for them 1 Does he not stand in the same light as the person advancing money on bottomry 1
It is a principle of law, if one man holds a lien on property, and another acting as the agent of the owner of the property discharges the claim, he becomes entitled to all the rights of the lien holder. But it has been said that the principle of giving the captain a lien under the circumstances of this case would be embarrassing to commerce and the interest of merchants and ship owners. I apprehend no such consequences would follow. What would be the difference to the ship owner or consignee, or any one else interested in the vessel or cargo, whether the lien is held by the captain or the holder of a bottomry bond ? If there is any difference, I apprehend it is in favor of the latter holding the lien ; for a person advancing on bottomry may charge any rate of interest agreed upon without violating the usury law; whereas the captain would be confined to the legal rate of interest,
How does this case stand on the score of authorities % In England there appears to have been some clashing opinions on the question, whether a captain of a vessel has a lien under circumstances similar to this case.
In 4 Esp. 22, Lord Kenyon, at nisi prius, decided that a captain who had made necessary advances for the ship in a foreign port and entered into liabilities, had a lien on the freight for his own indemnity. This was a question between the captain and the owner, or his assignees, to whom the consignee of the goods had paid the freight money.
In 8 Robinson's Adm. Rep. 240, Sir W. Scott says that a captain of a vessel in a foreign port, in order to make necessary repairs to enable him to proceed on the voyage, may bottomry ship, cargo and freight by a bond, to be paid in 24 hours after her return home; or he may, if it becomes necessary, sell any part of her cargo for that purpose.
Hussey v. Christie, 13 Vesey, jun., 594, was a case in equity where the captain claimed a lien on the freight against the owner or his assignee, being an application by the owner for an injunction to restrain the consignee from paying over the freight to the captain, who claimed on the ground of having made disbursements for the ship abroad. The injunction was refused, the lord chancellor deciding that he had a lien on ship and cargo in such cases; and he observed, in delivering his opinion, that it may be very beneficial for owners that the master should be able to procure the repairs by bis own means; for in some foreign ports he may not be able to find a person willing to advance on the credit of the ship ¿ and because the captain cannot hypothecate to himself for advances, he shall for that reason have a lien when he does advance. This case was decided in 1807, and was sent down by the lord chancellor to the judges of the king’s bench for their opinion. That opinion is reported in 9 East, 426. The judges decided that they knew of no case at common law giving the captain such a lien, and Lord Eldon says, “ I disclaim the right now to originate one.”
The American authorities generally go to establish the lien in favor of the captain.
. The captain paid the export duties abroad which were necessary to enable the ship to proceed on her voyage—decided, that he had a lien on the freight for the same. 2 Caines’ Rep. 81.
The United States district court decided that money paid abroad by the captain for mariners’ wages and necessaries furnished the vessel are liens on the ship, and directed the same to be paid out of remnants and surplus. 1 Peters’ Adm. Rep. 223.
Judge Story decided that the master of a ship has a lien on the freight for all advances made abroad for ships’ use, and may intercept it to reimburse himself. 3 Mason’s Rep. 255. He observes, alluding to the case in 9 East, 426, “ It has been said that the common law affords no such lien in England ; but their courts of equity seem determined to uphold it. Our courts have on several occasions adopted and enforced it.”
In 11 Mass. Rep. 72, the same principle is sanctioned. The captain’s right to retain may be enforced against the owner himself.
It does not appear from the authorities referred to on either side that there was any settled common law in England on this question prior to the revolution. It was res integra before that period. It is important that this principle in our state should be established settled law, for the information
I cannot reconcile the principle of the English decision in 9 East to my ideas of justice ; that a captain of a ship, after encountering the perils of the sea and expending his money and incurring liabilities to repair the ship of his owner to enable him to complete the voyage and bring home her earnings, and on his return finds his owner a bankrupt and his effects made over to assignees, shall not only lose his wages, but the money he has expended, appears to me unjust. This, to be sure, is a strong case; but a ship master is differently situated from a person employed on land, who can watch and look after his interest. Changes in the commercial community are frequent and sudden. In the present case the captain on his return home found that the ship had been sold to a stranger, residing in another state, and the consignee of the cargo notified not- to pay him any portion of the freight money. These are strong circumstances shewing to my mind the propriety of a lien on the ship’s earnings.
I am therefore of opinion that the judgment of the supreme court is right as far forth as it supports the master’s claim for responsibilities assumed by him; but that the court erred in allowing the plaintiff below to recover for his wages.
Under the facts in this case, the plaintiff in the court below contended that as master he had a general lien on the goods as well as on the freight for his wages and the amount of moneys expended on the brig for repairs and other necessary charges. Two questions arise out of this claim: 1. Whether he has any lien as against the owner of the brig for wages; 2. Whether he has a lien for repairs and moneys expended on the brig to indemnify himself for his individual liability.
The first branch of the inquiry has often been a subject of judicial determination, and many cases are to be found which bear strongly upon it, and it usually is determined from the relation which exists between the owner and master. The master is the agent of the owner, is in his employment, and whatever he does must be for the benefit of bis employer.
The other branch of inquiry is, how far can the master retain to satisfy his claim for moneys expended on the ship, or has he a lien on the goods for such repairs as are necessary, and moneys paid for the use of the ship, and which he has either paid out of his own money or become personally liable to pay. The master has the power of hypothecating both vessel and cargo for debts accrued on the ship’s account. Upon general principles, I can see no difference between the master having a lien for moneys expended, and giving that
There are some strong reasons against the conclusion to which I have come. It is said, and with truth, that much inconvenience would arise to the owner if he could not remove the master, let his conduct be ever so improper, (and indeed, owing to the conduct of the master, the expenses may have become necessary,) still it is better to leave that matter to be adjusted in some appropriate tribunal, than to'displace the captain from the vessel, in the repairs of which he may have expended large sums of money, and become more interested in her preservation than even the owner.
There is another strong objection to this action, arising from the liability of the owner to the person making the repairs : for the person making the repairs has a triple remedy against the vessel, against the captain, and against the owner; and if the captain recovers against the owner, and misapplies the proceeds of such recovery, the claim of the person making the advances still remains against the owner; he is thus liable to be prosecuted in two suits; and it is questionable how far one suit would be a bar to the other. This is the general rule, but where the credit is given to the own
The current of recent authorities is that the captain has a lien on the goods for the disbursements made for the vessel; White v. Baring et al., 4 Esp. N. P. 22, is a strong case to this point; it is true it is onty a nisi prius case, and is entitled to no more respect than is usually accorded to such decisions. Lord Kenyon, in that case, says that the captain having made himself liable for articles furnished to the ship, acquired a lien on the goods and freight, and that such lien was coextensive with the liability to the ship’s creditors. The following American cases proceed upon the same ground: Lane v. Penniman, 4 Mass. Rep>. 92; Lewis v. Hancock & Winslow, 11 id. 72; Canning v. Snow, 11 id. 415; Milward v. Hallet, 2 Caines, 77.
The verdict in this case embracing the wages as well as the primage and responsibilities, and judgment having been rendered for the whole amount, is must be reversed.
On the question being put, it appeared that the members of the court were unanimously of opinion that the judgment of the supreme court was erroneous in allowing the master to recover for his wages, but that for the residue the judgment was right.
stated the rule to be, that when distinct judgments are given by the court below, as for instance a judgment for damages and a judgment for costs, one may be reversed and the other affirmed ; but when the judgment is entire, there must be a total affirmance or reversal. 8 Johns. R. 111, 558. 12 id. 340, 434. 13 id. 460. 14 id. 417. In the special verdict in this case, the jury had staled the several amounts of the several items, but yet if the supreme court should be of opinion that the plaintiff was entitled to recover, they assessed his damages at a gross sum, and for that sum the court had given judgment. The judgment therefore as to the damages was entire, and there must be a total reversal, with directions to the supreme court to award a venire de nova, so that the jury on the second trial might be instructed not to allow for the master’s wages in the verdict that they should pronounce.
It was thereupon allowed that the judgment of the supreme court must be reversed in toto with costs; whereupon a decree was entered to that effect, and by consent of parties the following addition was made thereto: that a venire de nova be awarded by the supreme court, unless the defendant in error remit $140 (the amount of the master’s wages) and the interest of that sum from the time of the termination of the voyage down to the time of rendering the verdict; and if the defendant do so, then that the supreme court give judgment for the balance of the damages included in the verdict, with costs in the supreme court.