is, those who may be supposed by third parties to be authorized to deal with them. This is not intended as exclusive. Others may have such power, either from previous course of dealing or other circumstances, such as are usually matters of proof when a question of agency is involved. But in the latter case the party who attempts to hold the ship must prove their authority, while as to those named in this section their authority is presumed.

The concluding sentence of the second section, denying the right of any one in tortious possession to bind the vessel was intended to settle a question as to which there had been some difference.21

Suppose the vessel is chartered—that is, hired by the owner to some one else to operate her-under an agreement that the charterer is to furnish all running supplies and the owner is to furnish the crew. In that case the materialman could not proceed against the vessel for such supplies furnished, even on the order of the master, if the materialman knew or could have ascertained that the charterer's power was so limited.22 And this is true as to a vendee in possession under a sale, where the vendor retains title till payment. He could not bind the vessel under such circumstances.23

Even in case of chartered vessels, if the supplies were ordered in a foreign port by the master, the vessel would be bound, unless the materialman knew or could have ascertained the limitations of the charter party.24

21 See the article by Mr. Frederic Cunningham on "Respondeat Superior in Admiralty," 19 Harvard Law Review, at page 446. See, also, Jackson v. Julia Smith, Fed. Cas. No. 7,136; Thurber v. Fannie, Fed. Cas. No. 14,014; Anne, Fed. Cas. No. 412 (Story, J.); G. H. Starbuck, Fed. Cas. No. 5,378; Dias v. Revenge, Fed. Cas. No. 3,877; Clarita, 23 Wall. 11, 28 L. Ed. 146.

22 Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512; VALENCIA, 165 U. S. 264, 17 Sup. Ct. 323, 41 L. Ed. 710.

23 H. C. Grady (D. C.) 87 Fed. 232.

24 O. H. Vessels (D. C.) 177 Fed. 589; Id., 183 Fed. 561, 106 C. C. A. 107.

The third section of the act substantially adopts the preexisting law on the subject, except perhaps that it rather extends the powers of a purchaser in possession.

It does not impose upon the materialman the duty of inaugurating any inquiry or search of records. In the absence of anything to put him on inquiry, he may assume that the officers or agents usually empowered to act for ships have such powers.25

The existence of a charter party and knowledge of that fact by the materialman do not necessarily defeat the lien. The owner may estop himself to deny it by his conduct, or the charter party may not forbid the incurring of a lien.2

26

By "foreign port" was meant not simply ports of foreign countries, but in this respect the states also are foreign to each other. The character of the vessel is presumptively determined by her port of registry, so that, if a vessel registered in New York goes to Jersey City, she was in a foreign port for the purposes of this doctrine.27

This was only a presumption, and could be overcome by showing the real residence of the owner. Hence, if a vessel, though registered in New York, had an owner living in Norfolk, and the supply man knew this, or was put upon inquiry, supplies ordered in Norfolk would be treated as ordered in the home port. And this was true also as to a charterer operating a ship under a charter that amounted to a demise.28

25 City of Milford (D. C.) 199 Fed. 956; Eureka (D. C.) 209 Fed. 373; Oceana (D. C.) 233 Fed. 139; Id., 244 Fed. 80, 156 C. C. A. 508.

26 Mt. Desert, 158 Fed. 217; Id., 175 Fed. 747, 99 C. C. A. 323 (decided before the act); South Coast (D. C.) 233 Fed. 327; Id., 247 Fed. 84, 159 C. C. A. 302; Id., 251 U S. - 40 Sup. Ct. 233, 64 L. Ed. -; New York Trust Co. v. Bermuda-Atlantic S. S. Co. (D. C.) 211 Fed. 989.

27 KALORAMA, 10 Wall. 210-212, 19 L. Ed. 944.

28 Ellen Holgate (D. C.) 30 Fed. 125; Francis (D. C.) 21 Fed. 715; Samuel Marshall, 54 Fed. 396, 4 C. C. A. 385.

Under the act the distinction between foreign and domestic vessels has lost its importance.

These claims, being maritime in their nature, take precedence of common-law liens. Hence, though not required by any law to be recorded, they take precedence of a prior recorded mortgage, on the maritime theory that, being intended to keep the ship going, they are for the benefit of other liens, as tending to the preservation of the res.20 How Waived or Lost

Taking a note or acceptance for a claim of this sort is not a novation or waiver of the right to hold the vessel, unless so understood.30

Such a claim is lost under some circumstances by delay in enforcing it. In such cases it becomes "stale," to use the language of the admiralty judges. In its general principles the doctrine of staleness is substantially the same as the equitable doctrine of the same name. In its application admiralty is perhaps prompter in enforcing it.

As between the original parties, the claim would hold by analogy until a personal suit of the same nature would be barred by the act of limitations, in the absence of special circumstances, such as loss of evidence or changed condition of parties. But, where other interests have been acquired in ignorance of its existence, it would be held stale in a much shorter period, depending on the frequency of opportunities for enforcing it.3

31

Illustrations of such interests would be an innocent purchaser for value or a subsequent supply claim. A holder of

29 Emily B. Souder, 17 Wall. 666, 21 L. Ed. 683; J. E. RUMBELL, 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345.

30 Emily B. Souder, 17 Wall. 666, 21 L. Ed. 683.

81 SARAH ANN, 2 Sumn. 206, Fed. Cas. No. 12,342; Key City, 14 Wall. 653, 20 L. Ed. 896; Queen (D. C.) 78 Fed. 155; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. 180, 36 C. C. A. 135: Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; Norfolk Sand & Cement Co. v. Owen, 115 Fed. 778, 53 C. C. A. 96, post p. 392.

33

a mortgage to secure a subsequent debt is a purchaser for value, but not to secure an antecedent debt.32 As against innocent purchasers, even as short a delay as three months in enforcement, where there was ample opportunity, has been held to render a claim stale. In older days, when voyages were longer, they were often held stale after one voyage. On the Lakes, the limit, in the absence of special circumstances, is one season of navigation.35 In short, the time varies according to the opportunity of enforcement, the change in the situation of the parties, and the hardship occasioned or avoided by enforcing it or denying it.3° The supply man acquires his right against the vessel, not only by furnishing necessaries in his own port, but by shipping them to the vessel in another port.37

34

Necessaries are not "furnished" to a vessel, unless that particular vessel is in the mind of the parties. Though it may not be necessary to show that they were actually used upon her, an indiscriminate furnishing of necessaries to the owner of a fleet does not give an indiscriminate lien upon the fleet, regardless of the manner in which the necessaries were applied.38

32 CHUSAN, 2 Story, 455, Fed. Cas. No. 2,717; Ella (D. C.) 84 Fed. 471.

33 Coburn v. Factors' & Traders' Ins. Co. (C. C.) 20 Fed. 644. 34 General Jackson, 1 Spr. 554, Fed. Cas. No. 5,314.

35 Hercules, 1 Spr. 534, Fed. Cas. No. 6,401; Nebraska, 69 Fed. 1009, 17 C. C. A. 94.

36 Harriet Ann, 6 Biss. 13, Fed. Cas. No. 6,101; Eliza Jane, 1 Spr. 152, Fed. Cas. No. 4,363; CHUSAN, 2 Story, 455, Fed. Cas. No. 2,717; Thomas Sherlock (D. C.) 22 Fed. 253; Tiger (D. C.) 90 Fed. 826.

37 Marion S. Harris, 85 Fed. 798, 29 C. C. A. 428; Yankee, 233 Fed. 919, 147 C. C. A. 593.

38 James H. Prentice (D. C.) 36 Fed. 777 (decided before the act); Aitcheson v. Endless Chain Dredge (D. C.) 40 Fed. 253 (decided before the act); Astor Trust Co. v. E. V. White & Co., 241 Fed. 57, 154 C. C. A. 57, L. R. A. 1917E, 526; Cora P. White (D. C.) 243 Fed. 246; Walter Adams, 253 Fed. 20, 165 C. C. A. 40.

Advances

Not only the supply man can proceed against the vessel, but any one who advances money on the credit of the vessel, express or implied, for the purpose of paying for such necessaries, has a claim against the vessel. In other words, advances of money under such circumstances are necessaries. But money lent to the master or owner without reference to the ship, or money advanced to pay off claims not maritime, cannot be collected by suit against the vessel.40

39

The fourth section of the act specifically provides that it shall not be construed to "affect the rules of law now existing * ** in regard to the right to proceed against a vessel for advances." 41

SAME "NECESSARIES" DEFINED

48. "Necessaries," in this connection, mean whatever is fit and proper for the service on which a vessel is engaged. Whatever the owner of that vessel, as a prudent man, would have ordered if present at the time, comes within the meaning of the term, as applied to those repairs done or things provided for the ship by order of the master, or other legal representative of the owner.

Care must be taken to consider the meaning of the terin "necessaries," as used in connection with this doctrine of supplies and repairs. In a broad sense of the word, anything is necessary for the ship which tends to facilitate her use as a ship or to save her from danger. In that sense

39 Emily B. Souder, 17 Wall. 666, 21 L. Ed. 683; Guiding Star (C. C.) 18 Fed. 263; Worthington, 133 Fed. 725, 66 C. C. A. 555, 70 L. R. A. 353.

40 A. R. Dunlap, 1 Low. 350, Fed. Cas. No. 513.

41 In view of this language in the act, the statement in the Cimbria (D. C.) 214 Fed. at page 129 is a little hard to understand.