raised, then it is a question whether the master should sell at once, or delay the sale until orders can be received from the owners. And, although there may be peculiar cases and emergencies, which must be judged of by themselves, as a general rule we should have no hesitation in saying, that the master of a ship thus slightly injured would have no other right than to let her lie in port, with all possible precaution against deterioration, until he could hear from the owners.1 There may be, perhaps, a case in which the master may be justified in selling by a mere pecuniary necessity; but this must be extreme and unquestionable; it must be such as to come clearly within the rule already laid down, and make it indisputably certain that the owner himself, if there under similar circumstances, would have found a sale the only thing he could do; for, it must be such as to show that the sale was clearly of necessity, and not of expediency only.

At one time, a distinction was made between the power of the master if abroad, or if wrecked on the coast of his own country.2 But this has disappeared. The only rule now is, that he must inform his owners, and wait their instructions, if he can. The general introduction of the electric telegraph will much extend this possibility, and consequent duty. For, let the master be where he may, and the owner far or near, it is certain that he can only dispossess the owner of his property by a sale, when his authority for this rests on necessity, and only when that necessity is such as to preclude intercourse between them without an unreasonable exposure of the property to peril. In other words, if he can become

1 See infra, n. 3, and p. 74, n. 1.

* Scull v. Briddle, 2 Wash. C. C. 150.

'The Brig Sarah Ann, 2 Sumn. 206, 215. In this case, Mr. Justice Story states the law as follows: "It has been suggested at the argument, that, as the stranding was on a home shore, at no great distance from the residence of the agent of the owners, the master was not authorized to sell without consulting the agent or the owners. I agree at once to the position, if there is no urgent necessity for the sale. But if such an urgent necessity does exist, as renders every delay highly perilous, or ruinous to the interests of all concerned, the duty of the master is the same, whether the vessel be stranded on the home shore, or on a foreign shore, whether the owners' residence be near or be at a distance. I am aware of the doctrine maintained by my brother, the late Mr. Justice Washington, in Scull v. Briddle, 2 Wash. C. C. 150; and, unless it is to be received with the qualification above stated, I cannot assent to it." Same case affirmed, New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387.

the agent of the owner with instructions, then he cannot be his agent from necessity.1

If a sufficient necessity existed, and the master proceeded to make sale, he does so as the agent of the owners, and binds them. by his acts or words in the same manner that he would if otherwise authorized to make the sale. But if a master is specially authorized to sell a vessel in a particular manner the owner is not bound if the master exceeds his instructions.3

SECTION V.

OF THE SALE OF A SHIP UNDER A DECREE OF ADMIRALTY.

The ship is sometimes sold, abroad or at home, under a decree of the court of admiralty. If this be a condemnation as prize, or for forfeiture as contraband, or for smuggling, or for any such cause, or to pay salvage, or discharge a bottomry bond, or to satisfy any of the liens known to the maritime law, it would seem to be

1 In Pike v. Balch, 38 Maine, 302, a vessel on a voyage from Calais, Maine, to New York, was wrecked on an island off Little Machias Bay. There was a telegraph station distant twenty miles from the wreck., It was held, that if the master could "by any available means " in his power communicate with his owners, he was bound to do so. The vessel was sold by the master without notice being given to the owners, and the sale was held to be invalid. And in the New England Ins. Co. v. Brig Sarah Ann, 13 Pet. 387, 401, the court say: "The true criterion for determining the occurrence of the master's authority to sell is the inquiry, whether the owners or insurers, when they are not distant from the scene of stranding, can, by the earliest use of the ordinary means to convey intelligence, be informed of the situation of the vessel in time to direct the master before she will probably be lost. If there is a probability of loss, and it is made more hazardous by every day's delay, the master may then act promptly, to save something for the benefit of all concerned, though but little may be saved." See also The Brig Sarah Ann, 2 Sumn. 215; Scull v. Briddle, 2 Wash. C. C. 150. In Hall v. Franklin Ins. Co. 9 Pick. 466, the ship was in no immediate danger of becoming a wreck. It would have taken thirty or forty days to have communicated with the underwriters, and to have received word back. The vessel being sold without notice of her condition being given, the sale was held to be void. See also Peirce v. Ocean Ins. Co. 18 Pick. 83; Stephenson v. Pacific Ins. Co. 7 Allen, 232.

2 Woods v. Clark, 24 Pick. 35.

'Johnson v. Wingate, 29 Maine, 404.

valid and binding upon all courts and all parties, unless it be shown to be vitiated by fraud.1 But if it be merely a decree on a survey, and rest on the ground of unfitness for service, or unseaworthiness, then it would seem that the courts of the country in which the ship belongs will look behind the judgment in admiralty, receiving the decree as of little more authority than the report of surveyors, or a similar statement, on the authority of which it probably rests. And the sale will then be valid or void, accordingly as the actual facts shall show it to have been necessary and justified, or the opposite.2 The courts of the United States have asserted that this subject is within the general jurisdiction of admiralty, and that such a decree may be made. And there are intimations, perhaps, that such a decree would be the best protection of a master, and that it would be wise in him, therefore, to obtain it. It might be inferred from this, that they would consider such a decree of a foreign court of the same force as a decree of condemnation. But we are of opinion that they would not only inquire into the foundation on which such decree was founded, and into all facts bearing upon the question of jurisdiction, but also into the distinct question whether the facts connected with the condition of the ship were such as justified the decree.3

1 The Tremont, 1 W. Rob. 163; Attorney-General v. Norstedt, 3 Price, 97; The Helena, Rob. 3.

In Reid v. Darby, 10 East, 143, Lord Ellenborough remarked, of the exereise by admiralty courts of this jurisdiction: "No instance has been discovered, in which such a power has been exercised in the admiralty court at home; nor can we find any terms in the vice-admiralty commission, or any principle upon which that practice can be sustained, (which certainly, however, has obtained in the vice-admiralty courts abroad,) of decreeing, upon the mere petition of the captain, the sale of a ship reported upon survey to be unseaworthy and not repairable, so as to carry the cargo to the place of its destination, but at an expense exceeding the value of the ship when repaired." The same doctrine is reaffirmed in Hunter v. Prinsep, 10 East, 378; Morris v. Robinson, 3 B. & C. 196, 203; The Segredo, Spinks, Adm. 57. The English court of admiralty, though they admit, yet regret, the want of jurisdiction. The Fanny & Elmira, Edw. Adm. 117, 119; The Warrior, 2 Dods. 288, 293; The Pitt, 1 Hagg. Adm. 240. Thus, Mr. Justice Story, in the case of The Sch. Tilton, 5 Mason, 465, 474, says: "To what is suggested in that case (Reid v. Darby), as to the want of jurisdiction in the admiralty courts to decree the sale of a ship in a case of necessity upon an application of the master, I, for one, cannot assent. I agree, that in such a case the decree of sale is not conclusive upon the owner or upon third persons, because it is made upon the application of the master, and not in an adverse

The practice of selling by decree of admiralty merely for unseaworthiness is not much known in this country, and the rule which permits such a decree to be examined into so freely is an exception to the general rule, which makes a decree of admiralty in rem binding upon all the world. But the reason of this rule in some degree qualifies it. The reason is, that all. persons who have an interest in the property may interfere to protect it; but, in order that they may do this, there must be proper notice given, and reasonable opportunity afforded to them to assert and maintain their claims. Probably it would never be a sufficient reason for setting aside a decree of a foreign court of admiralty, that the person who seeks to avoid it had not actual notice or opportunity to present his rights and claims before the court, provided the usual notice and opportunity were given generally, and these were such as would import or carry with them a sufficiency of notice. But if these were wanting, if the proceedings were hastened, or so conducted that all persons interested would be in fact exposed to be deprived of their property unheard, this would taint the decree, and might have the full effect of fraud upon it. So if the property proceeding. But I cannot but consider it as strictly within the admiralty jurisdiction. It is primâ facie evidence of a rightful exercise of authority, but no The proceeding, being ex parte, cannot be deemed conclusive in favor of the party promoting it." See also Janney v. Columbian Ins. Co. 10 Wheat. 411, 418; Dorr v. Pacific Ins. Co. 7 Wheat. 581; Armroyd v. Union Ins. Co. 2 Binn. 394; Steinmetz v. United States Ins. Co. 2 S. & R. 293; The Dawn, Ware, 485, 487. In Grant v. M'Lachlin, 4 Johns. 34, an American vessel was captured by a French privateer, and carried into port, but was never condemned as a prize. Subsequently she was employed by the French government to carry passengers to Barracoa, and arrived there in a dismantled condition. After remaining there several months, she was sold by order of the Spanish commissary, and got off and repaired. She subsequently arrived in New York, where her original owners brought an action of trover against the vendee. The court held that the sale was fair and bonâ fide, and, being made in accordance with the laws of Spain, was binding on all parties. Mr. Justice Thompson said: "A sale according to the law of the place where the property is must vest a title in the purchaser, which all foreign courts are bound, not only from comity, but on strong grounds of public utility, to recognize. Without this rule, there could be no safety in derivative titles. The only inquiry in these cases is, Was the sale under a competent authority?" Where a sale is made by the advice of surveyors, it is primâ facie valid, and the burden of proof is on the party seeking to impeach it. Gordon v. Mass. Ins. Co. 2 Pick. 249, 265.

more.

1

Sawyer v. Maine Ins. Co. 12 Mass. 291; The Mary, 9 Cranch, 126. In

sold were never within the possession or reach of the court, either actual or constructive, or if the question upon which the case depended was not within their jurisdiction, this would show the proceedings to be either grounded upon a fatal mistake, or upon intentional fraud. But this possession may, as it is now settled, be constructive; for both the English and the American admiralty will, as we shall state more fully in another part of this work, condemn as prize a captured ship which has been carried into a neutral port, and is lying there at the time of the decree.1

The court must be a regular court, such as is recognized by the law of nations. It is settled, at least for England and America, that the sufficiency and authority of the court, as well as its jurisdiction, may be inquired into. And the courts of neither country

Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 607, Mr. Justice Story is very explicit upon this point. He says: "If a seizure is made and condemnation is passed without the allegation of any specific cause of forfeiture or offence, and without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defence, the sentence is not so much a judicial sentence as an arbitrary sovereign edict. It has none of the elements of a judicial proceeding, and deserves not the respect of any foreign nation. It ought to have no intrinsic credit given to it, either for its justice or its truth, by any foreign tribunal. It amounts to little more, in common sense and common honesty, than the sentence of the tribunal, which first punishes and then hears the party castigatque, auditque. It may be binding upon the subjects of that particular nation. But upon the eternal, principles of justice it ought to have no binding obligation upon the rights or property of the subjects of other nations; for it tramples under foot all the doctrines of international law; and is but a solemn fraud if it is clothed with all the forms of a judicial proceeding. I hold, therefore, that if it does not appear upon the face of the record of the proceedings in rem, that some specific offence is charged, for which the forfeiture in rem is sought, and that due notice of the proceedings has been given, either personally or by some public proclamation, or by some notification or monition, acting in rem or attaching to the thing, so that the parties in interest may appear and make defence, and in point of fact the sentence of condemnation has passed upon ex parte statements without their appearance, it is not a judicial sentence, conclusive upon the rights of foreigners, or to be treated in the tribunals of foreign nations as importing verity in its statements or proofs."

The Christopher, 2 Rob. Adm. 207; The Henrick & Maria, 4 Rob. Adm. 43, 54; affirmed on appeal, 6 Rob. Adm. 139 n.; The Falcon, 6 Rob. Adm. 194; The Comet, 5 Rob. Adm. 285; The Victoria, Edw. Adm. 97; Hopner v. Appleby, 5 Mason, 71; The Arabella & The Madeira, 2 Gall. 368; Cheriot v. Foussat, 3 Binn. 220. But see contra, Wheelwright v. Depeyster, 1 Johns. 471.

* The Flad Oyen, 1 Rob. Adm. 135; The Henrick & Maria, 4 Rob. Adm. 43;