It seems that a part-owner of a whale ship who is employed by the other owners to fit her for sea and purchase the necessary

these things on credit, render his companions liable to be sued for the price of them, unless their liability be expressly provided against." In support of this proposition several cases are cited, but it will be found on examination that they are either cases of partnership, or those in which the repairs were ordered by a person who was also the ship's husband or the master. The question, whether one partowner is liable for repairs ordered by another who is not the ship's husband, has seldom arisen, though there are numerous dicta on the subject. In Ex parte Bland, 2 Rose, 91, 93, and in Stewart v. Hall, 2 Dow, 29, the repairs were ordered by the master. In Beckham v. Knight, 5 Scott, 619, and in Patterson v. Chalmers, 7 B. Mon. 595, the parties were partners, and not part-owners merely. In the following cases the repairs were ordered by the ship's husband, and the other part-owners were held liable. Chapman v. Durant, 10 Mass. 47; Schemerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Thompson v. Finden, 4 Car. & P. 158. In Carlisle v. The Steamer Eudora, 5 La. Ann. 15, the action was brought by a pilot against the steamer and owners. The plaintiff was employed by one owner, who represented the vessel by a written contract. There was parol evidence that at the time of entering into the contract the plaintiff contemplated the liability of all. Both owners were held liable. See also Hardy v. Sproule, 29 Maine, 258.

This question has been recently the subject of much discussion in England, in the case of Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146. The action was brought for work done, and for goods bargained and sold. The vessel was owned by two part-owners, one of whom appears to have been in possession, though not the ship's husband, and the repairs were ordered by him. The action was brought against the other owner, who, prior to the repairs being made, told his co-owner that he would not repair, and on finding that the repairs were actually in progress, gave the plaintiff express notice that he would not be liable. It was held, that the plaintiff could not recover. It might seem that the fact of notice having been given to the plaintiff might be an element in the case which influenced the decision, but it is evident that if the copart-owner had authority to order the repairs, a subsequent countermand could not affect the vested rights of the parties, and indeed this point is not noticed by the court, who put their opinion on the broad ground that one part-owner has no authority to bind his co-owners. Mr. Justice Williams states the law as follows: "Partowners of a ship are not in the situation of partners. To this extent they resemble partners, that they are all liable for repairs and such other necessary expenses for the ship which may be presumed to have been incurred with their assent; but they differ from partners in this respect, that the authority of one part-owner to pledge the credit of the others does not exist, as in the case of partners, unless such authority has been determined only by express dissent, communicated to third parties. There is no authority that any such law is applicable to part-owners." And Jervis, C. J., in the same case says: "The only matter of difficulty which I have felt is the authority of Lord Tenterden (cited in the

supplies for her voyage, cannot bind the other owners by accepting in their names a negotiable bill of exchange drawn in payment for such supplies.1

It has been held, that if a part-owner expressly dissents from the employment of a ship on a certain voyage, and the ship is lost, he is not liable, in equity, for his share of the loss; but if he objects, and nevertheless does not expressly dissent, he is so liable.2

beginning of this note), "from which it would seem that something must be expressly done by a part-owner to limit his liability. I think, however, that means this, — that, when a ship goes into dock to be repaired, where the partowner has previously allowed his credit to be pledged, or has held himself out as liable, he must give express notice in order to determine the authority; but where there has been no such credit, or holding out as liable, no such notice is necessary. The explanation of it is this, that the authority once given continues, unless notice of the contrary has been given.” So in Revens v. Lewis, 2 Paine, C. C. 202, the court say: "Where one of the part-owners is the master or ship's husband, in the absence of all special agreement on the subject he is presumed to have authority to do everything necessary to be done for the employment of the vessel, and has of course authority to make repairs, and bind the vessel for the same; but as this is only an implied or presumed authority, it must, like all other implied powers, cease when it is revoked, or anything is done to rebut the presumption." But in King v. Lowry, 20 Barb. 532, where one part-owner assumed the control of the vessel, to the exclusion and against the will of the others, it was held that all were liable for the supplies ordered by this one in the home port, the party making the repairs not having knowledge of the differences which existed between the part-owners. 1 Taber v. Cannon, 8 Met. 456. The point decided in this case was that the owners were not liable on a bill of exchange accepted by the agent in his own name, without any designation of agency, although the bill was drawn on the owners of the vessel.

See supra, p. 94, note 4. In Stedman v. Feidler, 25 Barb. 605, one Hart was owner of one seventh of a steamboat. He died in 1845, and the defendant was appointed his administrator. The boat was run in 1846 without his direction, control, or interference. In February, 1847, he received his proportion of the earnings for 1846, and in 1849 he received the earnings for 1847. The boat was run by the other owners from 1847. The supplies sued for were furnished in 1851. In the spring of 1849, the defendant told the managing owner that he would have nothing to do with the running of the boat, or in paying any expense or indebtedness of her running, and would have nothing to do with the business or the concerns of said boat, or with the boat itself, except to sell his interest in her if he could. The court held that the authority of the master to act as agent for the defendant was revoked, and that the defendant was not liable. The case came before the Court of Appeals, 20 N. Y. 437, and the decision was affirmed on the sole ground that the defendant as administrator had no power to bind his intestate's estate by running a steamboat. In regard to the decision of the Supreme

If a part-owner arrests a ship and prevents a voyage, after the other owners have expended money to repair and fit her out, he has been held bound to pay his proportion of these expenses. But the repairs in this case were of a permanent nature, and such as would be beneficial to the ship after the voyage was ended, and it was also expressly found that the dissentient part-owner knew that these repairs were being made, and made no objection.1

SECTION III.

OF THE LIABILITY OF PART-OWNERS FOR REPAIRS OR SUPPLIES.

In general, all the part-owners are liable in solido for the repairs of a ship, or for necessaries actually supplied. This rests in part upon the general principle, that one receiving and holding a benefit must pay for it; and in part upon the peculiar nature of this property, and the necessity there is for the public good, as well as for the advantage of each owner, that, wherever the ship may be, all who are interested in her should be regarded as authorizing such expenditure for repairs or supplies as she may require. We shall see hereafter, that persons making repairs or furnishing supplies have also a lien on the ship. But they can neither have a lien on the ship, nor a personal claim against those of the partowners who do not order them, if the repairs or supplies are wholly Court we can only say, that it would seem that a part-owner who has made the master of a vessel his servant, either by originally appointing him, or by ratifying his appointment by participating in the profits of certain voyages, should give public notice of the revocation of the master's authority to bind him, at least to all persons who have dealt with the master, knowing him to be the agent of such part

owner.

1 Davis v. Johnston, 4 Sim. 539.

Westerdell v. Dale, 7 T. R. 306; Chapman v. Durant, 10 Mass. 47; Schemerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Hardy v. Sproule, 29 Maine, 258; Wright v. Hunter, 1 East, 20; Baldney v. Ritchie, 1 Stark. 338; Thompson v. Finden, 4 Car. & P. 158; Macy v. De Wolf, 3 Woodb. & M. 193, 204; Gallatin v. The Pilot, 2 Wallace, C. C. 592. In Louisiana, it is held that part-owners are not liable in solido, except when they form a partnership. Carroll v. Waters, 9 Mart. La. 500; Kimbal v. Blanc, 20 Mart. La. 386; David v. Eloi, 4 La. 106, 108; Burke v. Clarke, 11 La. 206.

3 See remarks of Parker, J., in James v. Bixby, 11 Mass. 34, 36.

But the

and obviously unnecessary, and therefore unreasonable. necessity in this case may not be a strict one. If the things furnished are in any reasonable conformity with the character of the ship, or the nature and purposes of the voyage, or if, in fact, they are such that any rational part-owner may be supposed to have desired them, it will be difficult for the absent part-owners to escape their liability.2 The owners are not liable after they have sold the vessel, although neither the master nor the person furnishing the supplies knew that the vessel had been sold.3

It has been said, that a part-owner of a vessel is not liable to another for repairs made at a home port without his consent. If made against his prohibition, he would not be liable; but we should suppose his consent would generally be inferred, if the repairs were reasonable and proper, and he made no objection. A considerable distinction exists in respect to all the powers of a part-owner, a master, or a ship's husband, between the exercise of them abroad and in a home port. The reason is obvious. A ship far from its home might perish for want of aid which was delayed until all the owners could be consulted. But if at home, all who will have to pay have an unquestionable right to be consulted. It is not, however, quite certain whether the fact that the vessel is in a home port, which certainly limits these powers, goes so far as to destroy them. In other words, the question, whether one partowner can bind another in a home port without specific authority, may be regarded as still open.1

1

If one who has a claim for repairs or supplies receives a part of

Molloy, B. 2, ch. 1, § 10; The Vibilia, 1 Wm. Rob. 1, 10; The Sophie, 1 Wm. Rob. 368; Mackintosh v. Mitcheson, 4 Exch. 175; The Ship Fortitude, 3 Sumn. 228, 233; United Ins. Co. v. Scott, 1 Johns. 106, 111; Pratt v. Tunno, 2 Brev. 449; Wainwright v. Crawford, 3 Yeates, 131, 4 Dall. 225; Merwin v. Shailer, 16 Conn. 489; Philips v. Ledley, 1 Wash. C. C. 226; Beldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473; Leddo v. Hughes, 15 Ill. 41.

3

Webster v. Seekamp, 4 B. & Ald. 352, and cases supra.

Hussey v. Allen, 6 Mass. 163; Dame v. Hadlock, 4 Pick. 458. See cases, p. 102, n. 3. Nor are they liable for repairs before their ownership commenced. Higgins v. Packard, 2 Hall, 226.

Benson v. Thompson, 27 Maine, 470; Hardy v. Sproule, 31 Maine, 71; Sch. Wm. Thomas v. Ellis, 4 Harring. Del. 309. In Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, 236, the question arose, whether a master had authority in a home port to make repairs. The point was not decided. Parke, B., stated that the court considered it an open question.

his claim from one or more of those liable in solido, those who thus pay a part, even if it be their share, or more than their share, are still liable for the residue. And they are thus liable, although the supplier expressly promised to discharge them in consideration of their paying as they did; for their payment alone would not be consideration enough in law to sustain the promise, even if they paid more than their shares, because they were legally bound to pay the whole. But if they paid on request, before they were bound to pay, or otherwise in any manner beneficial to the promisor and not obligatory on them, or if they received a discharge under seal, the part-owners paying would be no further liable.2 It may, however, be doubted whether, in admiralty, the presence of a seal upon the discharge would make much if any differ

ence.

If especial credit is given to one only of several part-owners, the others are not liable; but it must be clear that this was the intention of the creditor; that is, it must be certain that he not only intended to charge one, but intended also that the other part-owners should not be charged. If the creditor knew but one, and for that reason charged him only, that we should not deem a

1 Fitch v. Sutton, 5 East, 230; 2 Parsons on Contracts, 129 et seq. Teed v. Baring, Abbott on Shipping, 116.

Ex parte Bland, 2 Rose, 91; Baldney v. Ritchie, 1 Stark. 338; Stewart v. Hall, 2 Dow, 29; Thompson v. Finden, 4 Car. & P. 158; Hussey v. Allen, 6 Mass. 163; James v. Bixby, 11 Mass. 34; Muldon v. Whitlock, 1 Cow. 290; Cox v. Reid, Car. & P. 602; Reed v. White, 5 Esp. 122. In Jennings v. Griffiths, Ryan & Moody, N. P. 42, the court go so far as to say: The true question is, upon whose credit was the work done. This will generally be determined by the legal ownership, but may be rebutted by proof that the defendant has parted with the beneficial ownership, and all management of the vessel. This doctrine is entirely overthrown in England. Numerous recent decisions settle the law now to be, that where repairs are ordered by one person, and another is sought to be charged, the only question is whether the party ordering was held out by the other as his agent, for if not he cannot be held. Thus Parke, B., in Mitcheson v. Oliver, 5 Ellis & B. 419; 32 Eng. L. & Eq. 219, 232, says: "We have often said the expression, 'Upon whose credit the work was done, or the goods were supplied,' is an incorrect expression, and likely to mislead the jury; the correct mode of leaving the question to the jury is, who was the contracting party.'" See also Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204; affirmed, 18 C. B. 886, 36 Eng. L. & Eq. 350; Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146; Mackenzie v. Pooley, 11 Exch. 638, 34 Eng. L. & Eq. 486; Macy v. Wheeler, 30 N. Y. 231.