The decisions on this question, however, are not harmonious; some courts confusing it with the doctrine that there is no jurisdiction in the admiralty as to accounts among part owners.

But there are many cases where this question could not possibly be involved, like a personal injury claim, a claim for loss of goods shipped, or arising out of a collision. There can be no sound reason why a part owner should not be permitted to proceed against the vessel in such cases, always in subordination to other debts for which he is also responsible.17

There is nothing in the relation of part owners which makes one an agent for the other any more than there is in the relation of tenants in common. Hence one part owner, in the absence of some authority, express or implied, cannot bind the other part owner for the debts of the vessel. If cases exist in which the other part owner has been held bound, it will be found that there was some course of dealing or other circumstance tending to show express or implied authority.18

Disputes often arise between part owners as to the method of using their vessel. If they cannot agree, the majority owner can take the vessel, and use her, and in such case he will be entitled to the profits of the voyage, but the part owner may require him to give security for the protection of his interest in the vessel against loss, and admiralty has jurisdiction of a libel to compel the giving of such security.10

19

36 C. C. A. 524; Fredericka Schepp (D. C.) 195 Fed. 623; Puritan (D. C.) 258 Fed. 271.

17 See the discussion of this subject by the author in his article on Maritime Liens, 26 Cyc. 757, note 62.

18 Brodie v. Howard, 17 C. B. (84 E. C. L.) 109; FRAZER v. CUTHBERTSON, 6 Q. B. D. 93.

19 Coyne v. Caples (D. C.) 8 Fed. 638; Tunno v. Betsina, Fed. Cas. No. 14,236; Scull v. Raymond (D. C.) 18 Fed. 547; post, p. 516.

In such case a minority owner who is protected by such a bond, and who has refused to join in the voyage, cannot claim a share in its profits, as he has had none of the risk.20

In cases of disagreement the majority owner has the right to the use of the vessel, subject to the right of the minority to require bond; but, if the majority will not use the vessel at all, then the minority can use her on giving a similar bond to the majority. The reason of this is the principle of public policy that vessels should be used, and, while the majority in case of difference as to the precise voyage or the precise method of use can control, they cannot control it so far as to require the vessel to be laid up.21

Although admiralty does not have jurisdiction to decree a sale of a vessel for purpose of partition where the interests in the vessel are unequal-for in that case the majority can rule--yet, if the interests are equal, and the equal interests disagree as to the method of employment of the vessel, then in that case neither can compel the other to give way, and admiralty has jurisdiction to decree a sale of the vessel.22

In England there was no jurisdiction in admiralty to sell for partition until the Act of 24 Vict. c. 10. The eighth section of that act gives such jurisdiction, whether as between equal or unequal interests, and also of all matters of account between part owners.23

20 Marengo, 1 Low. 52, Fed. Cas. No. 9,065; Head v. Amoskeag Mfg. Co., 113 U. S. 9, 5 Sup. Ct. 447, 28 L. Ed. 889.

21 Tunno v. Betsina, Fed. Cas. No. 14,236; Orleans, 11 Pet. 175, 9 L. Ed. 677; Gould v. Stanton, 16 Conn. 12; Southworth v. Smith, 27 Conn. 355, 71 Am. Dec. 72; England, 12 P. D. 32.

22 Ocean Belle, 6 Pen. 253, Fed. Cas. No. 10,402; Tunno v. Betsina, Fed. Cas. No. 14,236; Coyne v. Caples (D. C.) 8 Fed. 638; Head v. Amoskeag Mfg. Co., 113 U. S. 9, 23, 5 Sup. Ct. 447, 28 L. Ed. 889. In such case the court may take necessary incidental accounts. Emma B. (D. C.) 140 Fed. 771.

23 Apollo, 1 Hagg. Ad. 306. Smith's Admiralty Law & Practice (Ed. 1892) 46 et seq.

On the principle that the majority rules, a majority may remove the master of the vessel at any time, even without cause, and though he is part owner; but, if they remove him prior to the time for which they had agreed to keep him, or in any way break their contract with him, they are liable to an action for damages. Their power of removal, however, is clear, except when there is a written agreement to the contrary. On this subject section 4250 of the Revised Statutes says:

"Any person or body corporate having more than onehalf ownership of any vessel shall have the same power to remove a master, who is also part owner of such vessel, as such majority owners have to remove a master not an owner. This section shall not apply where there is a valid written agreement subsisting, by virtue of which such master would be entitled to possession, nor in any case where a master has possession as part owner, obtained before the ninth day of April, eighteen hundred and seventy-two." 24 In disputes with vessel owners admiralty takes cognizance only of legal titles, not of equitable.25

The admiralty procedure to obtain possession of a ship is a petitory or possessory libel.20

24 Lizzie Merry, 10 Ben. 140, Fed. Cas. No. 8,423; Montgomery v. Wharton, Fed. Cas. No. 9,737; Same v. Henry, 1 Dall. 49, 1 L. Ed. 32, 1 Am. Dec. 223; Eliza B. Emory (C. C.) 4 Fed. 342; Lombard S. S. Co. v. Anderson, 134 Fed. 568, 67 C. C. A. 432. Section 4250 of the Revised Statutes is contained in U. S. Comp. St. § 7995.

25 Eclipse, 135 U. S. 599, 10 Sup. Ct. 873, 34 L. Ed. 269; Robert R. Kirkland (D. C.) 92 Fed. 407; United Transportation & Lighterage Co. v. New York & Baltimore Transp. Line (D. C.) 185 Fed. 386, 107 C. C. A. 442.

26 Nellie T., 235 Fed. 117, 148 C. C. A. 611.

RELATION OF VESSEL OWNERS AS RESPECTS THIRD PARTIES

159. Vessel owners are liable in solido for the debts or torts of the vessel incurred in the natural course of busi

ness by parties holding the relation of agent to such vessel owners.

This is a long-settled principle of English and American law.27

The parties who are usually the agents of the vessel are the master and the managing owner. These are frequently combined in the same person, and their powers are substantially the same. They may bind the owners for debts in the usual and natural employment of the vessel.

A clear statement of the powers of the ship's managing owner (which is practically another term for the ship's husband) is set out in volume 1, § 428, of Bell's Commentaries, which enumerates them as follows, and also the limitation On his powers:

(1) To see to the proper outfit of the vessel, in the repairs adequate to the voyage, and in the tackle and furniture necessary for a seaworthy ship. (2) To have a proper master, mate, and crew for the ship, so that in this respect it shall be seaworthy. (3) To see to the due furnishing of provisions and stores, according to the necessities of the voyage. (4) To see to the regularity of all the clearances from the custom house, and the regularity of the registry. (5) To settle the contracts, and provide for the payment of the furnishings which are requisite in the performance of those duties. (6) To enter into proper charter parties, or engage the vessel for general freight, under the usual con

§ 159. 27 Thompson v. Finden, 4 Car. & P. 158, 19 E. C. L. 320; Nestor, 1 Sumn. 73, Fed. Cas. No. 10,126; Gallatin v. Pilot, 2 Wall. Jr. 592, Fed. Cas. No. 5,199.

ditions; and to settle for freight and adjust average with the merchant. (7) To preserve the proper certificates, surveys, and documents, in case of future disputes with insurers or freighters, and to keep regular books of the ship." In a well-considered American case his powers are enumerated as follows:

"To provide for the complete seaworthiness of the ship; to see that she has on board all necessary and proper papers; to make contracts for freight; to collect the freight and enter into proper charter parties; to direct the repairs, appoint the officers and mariners; to see that the vessel is furnished with provisions and stores; and generally to conduct all the affairs and arrangements for the due employment of the ship in commerce and navigation." 28

Mr. Bell in treating of the limitations of the powers of a ship's husband, says:

"(1) That, without special powers, he cannot borrow money generally for the use of the ship, though he may settle the accounts of the creditors for furnishings, or grant bills for them, which will form debts against the concern, whether he has funds in his hands or not, with which he might have paid them. (2) That, although he may, in the general case, levy the freight, which is, by the bill of lading, payable on the delivery of the goods, it would seem that he will not have power to take bills for the freight, and give up the possession and lien over the cargo, unless it has been so settled by charter party, or unless he has special authority to give such indulgence. (3) That, under general authority as ship's husband, he has no power to insure, or to bind the owners for premiums; this requiring a special authority. (4) That, as the power of the master to enter into contracts of affreightment is superseded in the port of the

As to his powers

28 Chase v. McLean, 130 N. Y. 529, 29 N. E. 986. as agent, see, also, Great Lakes Towing Co. v. Mills Transp. Co., 155 Fed. 11, S3 C. C. A. 607, 22 L. R. A. (N. S.) 769; Benjamin Noble, 244 Fed. 95, 156 C. C. A. 523.