USUAL DEFENSE IS WANT OF NECESSITY.

227

indicates the manner in which so extraordinary a power should invariably be exercised by the master, when he may be induced to resort to it, for adequate cause, and from worthy motives.

Agency is seldom controverted; indeed it is hardly controvertible; but must be generally conceded, so naturally does it flow from the known relation, subsisting between ship-master and ship-owner, as well as from the presumed character of a recognized master.

And so in regard to the good faith of a master: doubt is not to be expected or anticipated, though controversy has arisen, in a few cases, concerning the bona fides of a master. But, generally speaking, it is not to be apprehended that a trusted ship-master will turn his back upon all the past, ignore his personal antecedents, conduct, in a critical emergency, in a manner derogatory to his former estimation, and disregard that good faith which owners and others have a right to expect of him, by rashly making a nugatory and void sale.

But in every controverted case of sale by the master abroad, the first inquiry will invariably be, What was the necessity? and this question will be propounded by all concerned, proximately or remotely, - by owners, shippers, underwriters, and privileged creditors as well as purchasers; and all may desire, if they do not require, a satisfactory answer. Often the question turns upon a matter of insurance; and then underwrit ers pursue the investigation into the surrounding circumstances of damage, difficulty, disability, distress, and necessity, so searchingly and thoroughly, that all may readily infer the extent and character of the necessity; and whether the master has acted with or without prudence and discretion. Should it appear that there was

228 such a necessity as would justify resort to the extreme measure of selling, none would more readily acquiesce in it and gladly acquit a master of all blame, than insurers and their intelligent representatives.

LEGAL NECESSITY JUSTIFIES MASTER'S SALE.

If the necessity were adequate; if it were sufficient, or (as I think the text should be), if the necessity were legal; then sale by the master is justifiable, and his bill of sale passes a clear title, freed from all liens: and the gist of the whole inquiry should be as to the necessity, its extent and character.

In the Bonita (Lush. 252), it was, indeed, declared that the legality of a sale by a master mainly depended upon his conduct. Not to underrate the importance of good faith, prudence, and sound judgment in the master's every measure for practical relief, and avoidance. of sale, it has ever seemed to be a cardinal point, first, to ascertain the degree, kind, nature, and extent of the supposed necessity; whether it be real or pretended; adequate to sustain a master in making sale; sufficient to legalize a sale, if made; in short, if there had existed such an absolute necessity as is required to precede a sale, in order to preclude the owner, and protect the purchaser. Such a necessity would be a legal necessity, if not physical or moral; and it would compel or constrain a master to take the first step toward making a sale. Judicial decrees and surveys may be useful; but they are not indispensable. They may serve to shelter and shield the master in a case of great doubt and difficulty; but, after all, afford slight aid in dissecting, analyzing, and exhibiting all the elements and surroundings of a real, pressing, legal necessity. It is with this necessity that a master has to deal, when, relying upon his official position, he evokes his reserved, implied power,

LEGAL NECESSITY ALONE AUTHORISES MASTER'S SALE. 229

under distress abroad, to sell his ship. When a viceadmiralty court commands, or the report of a competent survey commends, the sale of a disabled ship in a foreign port, both the decree of the former, and report of the latter are subrogated for the implied power to sell by the master,-substantially relieving him from his great responsibility, and justify the sale. The action of the court and survey must necessarily be based upon the same state of facts constituting the necessity, as would have faced the master, were he constrained to act upon his own personal judgment alone. While, therefore, the decree and report might relieve the master, neither would remove nor obliterate the many tangible, visible, and material facts or besetting difficulties, which lie in reserve, and together beget the possibility and even necessity of sale by the master. And these ingredients combine to create the legal necessity of a sale; that is, they present such a predicament of distress or condition of disability, as will authorize and justify any master, so involved, in exercising the extreme and dangerous power to sell.

It is a surpassing necessity, exceptional, not common, and might well be termed a paramount necessity. When it arises in the course of a voyage, and practically suspends the ship's employment, by obstructing her continued and contemplated navigation, then arises that indefinable, ideal necessity, which may well enough be expressed by the term legal, or paramount (perhaps, on the whole, better by the latter expletive), but which neither courts nor jurists have hitherto but rarely attempted to define precisely; and then usually by circumlocution, or paraphrase, or approximation to definition by enumeration. And whether such paramount

230 LEGAL OR PARAMOUNT NECESSITY DEFINED.

necessity be a matter of definition or deduction (as in 4 C. & P. 276,1 and 2 Pick. 2642), the class and kind of facts, upon which such deduction or definition is dependent, when collected, are generally similar.

Thus, a vessel, disabled by sea-peril, reaches her for eign port of destination, damaged, crippled, and needing repairs; or, it may be, puts into an intermediate port of refuge for relief and repairs. The necessity, justifying sale, depends upon the amount of repairs required, and extent of the damage inflicted. This investigation would involve an inquiry into: 1. The vessel's present condition: 2. Her possible future condition, if not sold: 3. The master's written provisional instructions, if any; and facilities for communication with the owners or their agents 4. Supply of materials at the place of distress; and their cost, if procurable there: 5. If not, the feasi bility of procuring them elsewhere: 6. Costs of transportation 7. Presence or want of suitable laborers and shipwrights, and price of labor: 8. Master's available means or credit; or entire want of both credit and other resources: 9. Master's or owner's general ability to avoid sale 10. Possibility of transhipping cargo, or sailing the vessel elsewhere: 11. Probability of refitting at all, unless at a ruinous rate of costs and expense for, if the probable cost of repairing should exceed the ultimate value of the ship, when repaired, or, indeed, greatly exceed one half her value, deducting one third new for old; in either case, the refitting would be made at a ruinous expense, which no owner would incur; or other prudent, practical person, on the spot, would justify.

These are material facts, susceptible of being described

1 Somes v. Sugrue. 2 Gordon v. Mass. F & M. Ins. Co.

DECREE AND SURVEY DO NOT CONSTITUTE NECESSITY. 231

and proved, and, in the aggregate, might fitly define, or demonstrate the required necessity to justify a sale. In this aspect, a master may sell, without the advice of a competent survey, or the decree of a competent court. The surrounding facts per se may justify a sale by the master; he weighing these facts, judging of their significance, and taking the responsibility of settling for himself, that the impending necessity is an adequate or paramount necessity, sufficient to authorize and justify the sale of a ship to a foreign purchaser.

If the facts negative, or do not affirmatively show the existence of a necessity, their moral effect would be to restrain him from selling; if, on the other hand, the facts found affirm a predominant or paramount necessity, then the moral effect would be to constrain the master to sell; but we ought not to substitute effect for cause. The compulsion restraining from sale, results from want of facts; while the compulsion constraining a sale, implies or rather presupposes facts to exist which together constitute that necessity which, the law contemplates, shall potentially exist in order to empower a master to sell abroad. Such a necessity existing, be it legal, urgent, or paramount, would morally induce a sale, or impose a moral necessity upon a master to sell, just as effectually as would the advice of a competent survey. In Gordon. v. Mass. F. & M. Ins. Co. (2 Pick. 264), where a competent survey advised a sale, the court said: "In such a case, a moral necessity is imposed upon the captain to sell." This is totally distinct from a representation of the surrounding facts. They produced the survey. The advice of the survey imposed a "moral necessity" to sell; in other words, morally persuaded the master to sell, and supplied him with adequate motive and author