Argument for the shipper. and this decree was affirmed in the Circuit Court. The matter was now here for review. Messrs. B. R. Curtis and F. C. Loring, for the appellants : I. The sale of the vessel was not justifiable, and it passed no title to Riviere. 1. The vessel was capable of being repaired, as is shown by the fact that she was repaired, and this at a less cost than her value; that she took a cargo to Boston, and afterwards to England, and that she was found to be stanch, strong, and seaworthy. The master, too, who sold a part of the cargo, had funds to pay for repairs and had not attempted a loan on bottomry. Now, if there is anything settled by the law, it is, that under such circumstances a master is under no legal necessity, and being under no such necessity, has no power to sell.* 2. Where there is a possibility of communicating with the owners without destructive consequences, it is the first duty of the master so to communicate and await his owners' instructions. It is not suggested here, by the other side, nor does the case indicate, that the vessel was so situated as to be in immediate danger from any cause. She did not leak. She was in a safe harbor, her copper was heavy and in order, and in these days of steam navigation the master could have written to his owners in Amsterdam, and received their instructions probably in less than thirty days. According to the authorities he was bound to do so, and the sale was not of necessity. The burden is on the purchaser to show that there was no time for communication without danger of loss, and he does not attempt to do so. 3. If the master does not act in perfect good faith, the sale is void. Whether the master did so act, is a question of fact, and the burden is on the purchaser to prove that he * The Sarah Ann, 13 Peters, 401; Freeman v. E. & I. Co., 5 Barnewall & Alderson, 617; The Fanny and Elmira, Edwards, 117; The Bonita, Lushington, 261. The Bonita, 1 Lushington, 253; Hall v. Franklin Insurance Co., 9 Pickering, 478. Argument for the shipper. did.* "While the power," says Grier, J.,† "is not denied, its exercise should be closely scrutinized." In this case fraud is to be inferred from the master's conduct. It does not appear that he had no funds of his owners, or could not procure them on their credit, or raise money on bottomry, before he proceeded to sell cargo. The temporary repairs recommended by the first survey would have cost $800, and that was all that he required at first, yet he sold to more than double the amount. He never advised the owners of the cargo of its sale, nor, so far as appears, the owners of the vessel. In fact, he stole the larger part of the proceeds of the cargo. The presumption is, in fine, every way against him, and the burden on the purchaser to remove it, and he has not attempted it. It is not necessary to impute bad faith to the purchaser, the present claimant; yet it must not be overlooked, that he had means of knowing that the master was not acting rightly. He consequently bought at his peril, and if the owner, or one having his right, chooses to dispute his title, he must yield.‡ II. But even if the sale was proper under the circumstances, we insist that the purchaser Riviere, took the title subject to all existing liens. Vessels, unlike other chattels, are subject to various maritime liens, necessarily secret, not requiring possession, and not obvious to strangers, yet protected from reasons of policy in all maritime states. Such are the liens created by bottomry; for repairs in a foreign port on the credit of the ship; of the owner of the cargo for its safe transportation and delivery; of the salvor; of the sailor for wages; of material men; the lien caused by a tortious collision; and others, all recognized by law, essential to the interest of commerce, constantly enforced by courts of admiralty, the existence of which are never apparent, and not always known to the master and owners, and therefore not to be *The Sarah Ann, 13 Peters, 401. † Post v. Jones, 19 Howard, 158. Argument for the shipper. learned by inquiry; valuable rights. Does the master of the vessel by a sale, destroy them, seamen's wages and all? There is no analogy between a decree of a court of admiralty and the act of a master in making a sale. In the one case notice is given to all the world: any person interested has the right to appear, and in case of sale the proceeds are paid into court for the benefit of all concerned. In the other, no notice is given to any one, unless by the advertisement of a sale at auction; no one has the right or power to interfere, and the proceeds are paid to the master, who, as in this case, may appropriate them to his own use. It is obvious what frauds the establishment of such a rule would encourage, and what temptations to make fraudulent sales would be opened. The policy of the law is to discourage sales by the master, but this would afford every inducement to make them. Authorities seem, however, to render argument useless, for they settle the point, that a maritime lien is not displaced by a sale. In The Europa,* it was held that a lien for damage by collision was not defeated by a sale to a bona fide purchaser without notice. A similar view has been taken in our own country as to the lien of a shipper for damages.† In The Catharine, a sale by the master, in a port of distress, was held not to devest lien of a lender on bottomry. Dr. Lushington says: "I think that a British vessel coming into a foreign port cannot be sold by the master, so as to . . . . extinguish all mortgage claims and liens on bottomry or wages, even in a case of necessity. It is the duty of foreign purchasers to open their eyes and to take care what kind of a bargain they make, that they guard themselves against liens which adhere to the ship." The authority of the master even in regard to the owners * 8 Law Times, 368. †The Rebecca, Ware, 212. See also on the subject generally, The Eliza Jane, Sprague, 152, and The Nymph, Swabey, 87. ‡ 1 English Law and Equity, 679. Argument for the purchaser. is watched with jealousy. How much more ought it to be in regard to those who have not appointed him, but who as lenders may be concerned more than owners themselves! Is it said that the master is acting for all concerned? Concerned in what? In whether, of course, there shall be a sale. If their liens are devested, mariners, lenders on bottomry and other lien creditors are concerned. And if the master is acting for them, the liens are protected. If he is not acting for them, he is not acting for all concerned; and unless the law protects them, they are without any protection at the moment when most needing it. Will it be argued that the proceeds of the vessel are as good as the vessel, and take its place? This is not so; for a fraudulent captain easily disposes of the proceeds of the ship, as he has done here with those of the cargo sold. The vessel, whether in a good state or bad, is a better security. III. The purchaser never acquired a valid legal title. The vessel was struck off to him at auction, and he afterwards took possession; but it is nowhere alleged or proved that the master executed a bill of sale in his own name, or that of the owner. By the general maritime law a bill of sale is necessary to transfer the title.* It is for him to sustain his claim and title. Mr. C. W. Loring, contra, argued : I. That a necessity has always been held to exist when a vessel is injured by perils of the sea to such an extent that the cost of repairs would be more than her value when repaired and arrived at her port of destination, and That if, in the opinion of those best competent to judge, the vessel so injured is not worth repairing, and the master acting in good faith, and after careful investigation and conference, upon that opinion sells his vessel, he is justified in so doing, though it afterwards turns out that the opinion The Sisters, 5 Robinson, 138; The Segredo, 1 Spinks, 46, per Dr. Lushington; Atkinson v. Malling, 2 Term, 466; Ex parte Halkett, 19 Vesey, 478; 3 Kent's Commentaries, 186. Argument for the purchaser. was incorrect, and the vessel could have been repaired at less cost and less than her value when repaired. * In all the cases cited below, the vessels were in port when sold; they were sold by the masters without consulting the owners, and they were afterwards repaired, and all but one came to England, where they belonged. Yet the sales were all confirmed by reason of necessity. But supposing that the vessel could have been repaired and forwarded, to the advantage of the owners of the cargo. It is submitted that this is one of those cases where the circumstances justify the master, though he were mistaken. Lloyd's agents, who represent the English underwriters, the agent of the New York underwriters (persons appointed for the express purpose of having vessels repaired when it is best to repair them), three masters of vessels, one of them who has given his deposition, and all appointed by the Dutch consul, say, after examining the vessel for a whole forenoon, and giving their reasons for it, "that they are obliged to come to the conclusion that it is not possible to make the necessary repairs in this port in a proper manner." In the face of this advice, no master would have dared to repair the vessel. The underwriters' agents are selected for the sole purpose of attending to these matters. From their knowledge of vessels and of costs of repairs, they are the best advisers that can be obtained. In The Bonita,† Dr. Lushington did not confirm a sale, principally because Lloyd's agent advised repairing, and warned the master against selling. In Gordon v. Massachusetts Fire and Marine Insurance Co., it is said the only alternative left for a master is to follow advice of the surveyors. II. Are the liens discharged? A lawful sale of a vessel, of necessity, by the master, is for all concerned, and passes a clean title to the purchaser: the proceeds in the master's hands take the place of the vessel. 1. Upon examining the authorities, we shall find that it The Glasgow, 1 Swabey, 150; The Australia, Id. 484; The Margaret Mitchell, Id. 382. 1 Lushington, 263. 2 Pickering, 264. |