the United States courts, has recently been considered by the Suof freight upon the return trip. Taylor v. Steamboat Robert Campbell, 20 Mo. 254. A boat is not responsible for a breach of a contract of affreightment made by a person in possession as trespasser. Steamboat Madison v. Wells, 14 Mo. 360; Bates v. Steamboat Madison, 18 Mo. 99. But persons furnishing supplies are not bound to inquire whether the master or agent who has the actual possession of a vessel is legally entitled to such possession, in order to secure a lien. Steamboat Lehigh v. Knox, 12 Mo. 508. There is no lien upon a steamboat for the use of a private wharf boat. Bersie v. The Steamboat Shenandoah, 21 Mo. 18. The statute divides debts into four classes. Each class is to be preferred according to its number, the highest number being the last class. But a judicial sale of a boat under the State law to satisfy a lien of one class, conveys to the purchaser a title free from the liens of every other class, superior or inferior. Steamboat Raritan v. Smith, 10 Mo. 527. So, of a sale under a similar law of another State. Finney v. Steamboat Fayette, 10 Mo. 612. But a sale in another State, which has no such law, does not divest the lied. Steamboat Sea-Bird v. Beehler, 12 Mo. 569. An action does not lie against a boat for damages sustained by a deck hand in being forced on shore by the master in breach of the contract of hiring. Blass v. Steamboat Robert Campbell, 16 Mo. 266. If the affidavit to a complaint against a boat is made by the plaintiff's agent, it must show his means of knowing the truth of the particulars specified in the complaint. Bridgeford v. Steamboat Elk, 6 Mo. 356; Hamilton v. Steamboat Ironton, 19 Mo. 523. And it must appear from the demand filed that the claim gives a lien. Luft v. Steamboat Envoy, 19 Mo. 476. The return of the officer to the writ must state that he seized the boat, but it need not state that he retains it in his custody. Blaisdell v. Steamboat Wm. Pope, 19 Mo. 157. Where a boat is seized and a bond given under the 9th section of the act, the lien is discharged, and the party cannot, after the boat has been sold, present his demand for allowance against the proceeds. Auvray v. Steamboat Pawnee, 19 Mo. 537. Unless the boat is bonded within five days after seizure, it is the duty of the officer to apply for an order of sale, and he has no authority to hold her without bond, subject to final process in the suit. Blaisdell v. Steam Ferry Boat Wm. Pope, 19 Mo. 538. For other decisions under the statute, based upon general rules, see Ready v. Steamboat Highland Mary, 17 Mo. 461, 20 Mo. 264; Whitmore v. Steamboat Caroline, 20 Mo. 513; Chouteau Steamboat St. Anthony, 16 Mo. 216, 20 Mo. 519; Dean v. Ritter, 18 Mo. 182; Porter v. Steamboat New England, 17 Mo. 290; Darby v. Steamboat Inda, 9 Mo. 645; Barge Resort v. Brooke, 10 Mo. 531; Jarbee v. Steamboat Daniel Hillman, 19 Mo. 141; Renshaw v. Steamboat Pawnee, 19 Mo. 532; Ritter v. Steamboat Jamestown, 23 Mo. 348.

v.

Mississippi.

Acts of 1840, 1841, Hutch. Dig. 288, art. 6; id. 290, art. 8. See Steamboat General Worth v. Hopkins, 30 Missis. 703.

Iowa.

Rev. Stat. 101; Code, ch. 120. See Steamboat Kentucky v. Brooks, 1 Greene, 398; Ham v. Steamboat Hamburg, 2 Clarke, 460; West v. Barge Lady Franklin, 2 Clarke, 522.

Wisconsin.-Rev. Stat. 116. See Rand v. The Barge, 4 Chand. 68.

California. - Laws of California, First Sess. p. 189, ch. 75, § 2; Compiled Laws of 1853, p 576, ch. 6, § 318.

preme Court of the United States, and the following decision given that in all cases where the United States courts have jurisdiction under the act of 1789,2 their jurisdiction in rem is exclusive, and the State courts cannot act in rem; but in cases under the act of 1845,3 the State courts have concurrent jurisdiction with the United States courts. Under the act of 1789, the United States courts have exclusive jurisdiction on the high seas and on waters navigable from the sea, saving to suitors the right of “a common-law remedy, where the common law is competent to give it." Under the act of 1845, the jurisdiction is confined to vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in business of commerce and navigation between ports and places in different States and Territories, upon the lakes and navigable waters connecting said lakes, saving to the parties "the right of a concurrent remedy at the common law, where it is competent to give it, and any concurrent remedy which may be given by the State laws." A suit in rem is considered as not a common-law remedy, and therefore as not within the saving clause of the act of 1789. It may, however, be a remedy "given by the State laws," and consequently when so given it is within the saving clause of the act of 1845.

It should be added, as a general remark, that part-owners of a ship are bound to deal fairly by each other, and that each, in the exercise of his own powers, must respect the rights of all the rest. This would flow from the principles of justice and morality; but it would seem that public policy comes in aid of these principles, in relation to a property of which the proper use and management are so important to the public. Hence, in one interesting case, where some part-owners in a valuable ship sold their shares by an indenture between them and the purchaser, which contained covenants that, in the opinion of the court, tended to control the appointments of persons to be employed in the management and navigation of the ship, it was held that such a contract violated the rights of the other owners and also principles of public policy; and that it was therefore void.4

The Hine v. Trevor, 4 Wall. 555.

2 Act of 1789, ch. 20, § 9, 1 U. S. Stats. at Large, 77. Act of 1845, ch. 20, 5 U. S. Stats. at Large, 726.

See Card v. Hope, 2 B. & C. 661, cited p. 96.

CHAPTER V.

OF THE LIABILITIES OF OWNERS GENERALLY.

AN owner of a ship, in possession of her and having both the legal and equitable title, is liable for all supplies furnished and all repairs made to her, and all work and service rendered for her benefit by order of the master, and in general for all the contracts made by him for the benefit of the vessel; because, from the necessity of the case, the master is invested with a very wide authority to do and provide whatever is requisite for his ship.1 Cases of this kind often occur; but those which depend upon the question how far and when a quasi owner is liable in the same way as an actual owner, or in the stead of the actual owner, are more numerous and important. Under what circumstances, and in what cases, the charterer will be considered to be the owner pro hac vice, we shall consider in our chapter on charter-parties. The question in every case is, whose agent is the party ordering repairs. If of the general owners, they are liable; but if not, the charterer alone can be · looked to. And if the charterer is an infant, the general owner is

ter.

1 See ante, p. 97, note 2, and post, chapter on Powers and Duties of Mas

2 Thus in Frazer v. Marsh, 13 East, 238, the repairs were ordered by the captain, who was also the charterer. It was held, that the general owner was not

liable. Le Blanc, J., says: "An owner would have the appointment of the captain; but the defendant had no right to appoint the captain under the charterparty." And in Reeve v. Davis, 1 A. & E. 312, where a steam vessel was let by charter-party, the registered owners agreeing to keep the engine in order, but the charterer was to pay for all other repairs, it was held, that repairs ordered by the charterer, who was also the captain, except those necessary for the engines, could not be charged to the general owner, although the person making the repairs was unacquainted with the special agreement between the parties. Lord Denman, C. J., says: “The question is, Who were the contracting parties? The mere circumstance of ownership may be sufficient to create a liability where the vessel has been left under the control of a party who has given orders, if no intervening ownership has been created. But if a ship is let out to hire, I do not see how the owners are liable for work done upon it by order of the party hiring, more than the landlord who lets a house." In this country, these decisions have been repeatedly followed. Perry v. Osborne, 5 Pick. 422; Urann v. Fletcher, 1 Gray,

not therefore liable, because the contract between the owner and charterer is, in such a case, voidable only and not void. Nor is the owner of a chartered vessel liable for wharfage.2

Most of these questions occur in reference to mortgagees. It is quite certain that a mortgagee should take possession as soon as he reasonably can; and that, if he fails to do so, unless protected by the provisions of some statute in his behalf, he is liable to have his title defeated by any third party who acquires a right to the ship in ignorance of the mortgagee's prior title, and in good faith.3 If a mortgagee takes possession, and especially if he takes out a new register in his own name, or if he does any acts which can be deemed in some degree equivalent to public notice that he is owner, this actual or apparently actual possession, added to his legal title as owner, seems to confer upon him the responsibilities and liabilities of an owner. The principal difficulty occurs when 125; Baker v. Huckins, 5 Gray, 596; Thompson v. Snow, 4 Greenl. 264; Houston v. Darling, 16 Maine, 413; Webb v. Peirce, 1 Curtis, C. C. 104, reversing s. c. 1 Sprague, 192; Leonard v. Huntington, 15 Johns. 298. The same principle underlies numerous other decisions relative to contracts formed by charterers with third parties. See Reynolds v. Toppan, 15 Mass. 370; Taggard v. Loring, 16 Mass. 336; Cutler v. Winsor, 6 Pick. 335; Thompson v. Hamilton, 12 Pick. 425; Manter v. Holmes, 10 Met. 402; Cutler v. Thurlo, 20 Maine, 213; Williams v. Williams, 23 Maine, 17; Sproat v. Donnell, 26 Maine, 185.- The vessel, however, is liable in rem for the breach of a contract of affreightment entered into by the master, provided such contract be within the scope of his authority. See post, Chap. VII.

Thompson v. Hamilton, 12 Pick. 425.

Philadelphia v. Naglee, 1 Ashm. 37.

Ex parte Matthews, 2 Ves. Sen. 272; Atkinson v. Maling, 2 T. R. 462 ; Mair v. Glennie, 4 M. & S. 240; Hay v. Fairbairn, 2 B. & Ald. 193; Portland Bank v. Stubbs, 6 Mass. 422, 425; Tucker v. Buffington, 15 Mass. 477, 480; Badlam v. Tucker, 1 Pick. 389. See also cases ante, p. 83, note 1. In The Schooner Romp, Olcott, Adm. 196, it was held, that a person who took a mortgage of a vessel then in port, but suffered it to leave in the possession of the mortgagor, without any record on the ship's papers of the transaction, could not recover the vessel from a subsequent bonâ fide purchaser without notice, although he enforced his claim at the first opportunity after the vessel left, and there was an agreement between the mortgagor and mortgagee that the former should remain in possession until the mortgagee had a chance to enforce the mortgage. D'Wolf v. Harris, 4 Mason, 515, is doubted in this case, so far as it is an authority in opposition to the last point.

Miln v. Spinola, 4 Hill, N. Y. 177. See also Hodgson v. Butts, 3 Cranch, 140. And so if he exercises other acts of ownership; as where his name

the question arises, whether a mortgagor in possession is liable for supplies and repairs, or a mortgagee out of possession. For if a mortgagee chooses not to take possession, he may, at his own pleasure, incur the danger of having his title defeated by a third party, without any risk of impairing it as between himself and the mortgagor. And if he takes no possession, but is equally protected against all the world, either by record or by any statutory provisions, as if he had possession, this circumstance does not clothe him with all the liabilities which spring only from actual possesAnd then the question occurs, is he liable for supplies or work rendered to the vessel ?

sion.

It is not unfrequently said, that this question is to be answered by ascertaining to whom the credit was given.1 But this is certainly not so. The answer must be made by compounding three elements, and in their due proportion; one of them being this question of credit; another is, by whom was this credit authorized or justified; and there is still another, Who has received and holds the benefit of the service rendered? It is a principle of very wide. application, that, if any person accepts and holds the benefit of any appeared on the registry as owner, and he caused the place of his residence to be painted on the stern of the vessel. Tucker v. Buffington, 15 Mass. 477. But see Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204, affirmed, 18 C. B. 886, 36 Eng. L. & Eq. 350. And where the mortgagee has possession, and the voyage is performed for his benefit, he is liable for the wages. of the master. Dean v. M'Ghie, 4 Bing. 45, 48, per Burrough, J.; Fisher v. Willing, 8 S. & R. 118, 122; Champlin v. Butler, 18 Johns. 169. But not where the master, with full knowledge of a secret agreement between the mortgagor and mortgagee that the latter should have no interest in the voyage, made a special agreement with the former in relation to his wages and privilege. Same case.

See also the case of Martin v. Paxton, reported 1 Holt on Shipping, 353. Abbott, C. J., there held that the mortgagees of a ship who were the registered owners were not liable to a claim for wages by a sailor, though they accrued upon a voyage which was prosecuted for their benefit, the ship's freight and earnings during the voyage being made over to them by the same deed which conveyed the ship as a security for advances, on the ground that the plaintiff had made the contract on which he sued, with the mortgagor, who was master of the vessel and remained in possession, and had given credit to him and not to the defendants. presumption is in favor of the mortgagee's right to take possession of the Holmes v. Sprowl, 31 Maine, 73. Hence the burden of proof will be upon him to show that he possessed no right of possession and control, if he rests a denial of responsibility on this ground.

The

vessel.

1 See ante, p. 102, note 3.