"Sec. 5. That this act shall supersede the provisions of all state statutes conferring liens on vessels in so far as the same purport to create rights of action to be enforced by proceedings in rem against vessels for repairs, supplies, and other necessaries."

The purpose of the act was to abolish the artificial distinction between foreign and domestic vessels as to the presumption of credit. In other respects it is substantially a reaffirmation of previous law. It renders obsolete, many decisions turning upon the prior law as to the presumption of credit. But it cannot be understood without some knowledge of previous law, and of course is subject to repeal at any time; so that it is necessary to give some attention to the previous law, taking care to point out how it has been affected by the act.

It is proper to consider, then: (1) Necessaries furnished. in foreign ports; (2) necessaries furnished in domestic ports.

SAME-NECESSARIES FURNISHED IN FOREIGN

PORTS

47. For supplies furnished a foreign vessel on the order of the master in the absence of the owner the law implied a lien. But prior to the act the presumption was against a lien if ordered by the owner or by the master when the owner was in the port.

As the master in a proper case could bind the vessel for such necessaries by means of a bottomry bond, so he could contract direct with the materialmen. By so using his ship as a basis of credit, he saved the marine interest usually charged in such bonds. The test of his power was the needs of his vessel. He could not do this unless the necessity was shown for the supplies or repairs, but when that was shown the rest was presumed. The materialman could then assume from the necessity. of the repairs, and the fact

that the master ordered them, that a necessity existed for the credit, though in point of fact the master had funds which he might have used. Only knowledge of this fact or willful shutting of the eyes to avoid knowledge would defeat the materialman's claim.16

As the basis of this.implied. hypothecation was the power of the master as agent of the owner in the latter's absence, the presence of the owner defeated the master's implied power, and in such case the presumption in the absence of other evidence of intent was that credit was given to the owner.17

But in such case the owner himself could bind the vessel by agreeing that the materialman might look to the vessel; and, indeed, if it appeared that the owner had no credit or was embarrassed or insolvent, the presumption would be that the credit was given to the vessel, and not to him.1

18

The fact that the supplies are charged to the vessel by name on the creditor's books was regarded as evidence of an intent to credit the vessel, though not very strong evidence, as such entries are self-serving.19

But these distinctions are wiped out by the first section of the act, which gives a maritime lien on the furnishing of the service, regardless of the question as to whom credit was given.20

The second section of the act enumerates the persons who are presumed to have authority to bind the ship; that

$ 47. 16 KALORAMA, 10 Wall. 204, 19 L. Ed. 944; Underwriter (D. C.) 119 Fed. 713 (an invaluable opinion by Judge Lowell discussing the history and development of the doctrine).

17 VALENCIA, 165 U. S. 270, 271, 17 Sup. Ct. 323, 41 L. Ed. 710; Reed Bros. Dredge No. 1 (D. C.) 135 Fed. 867.

18 KALORAMA, 10 Wall. 204, 19 L. Ed. 944; Patapsco, 13 Wall. 329, 20 L. Ed. 696; Worthington, 133 Fed. 725, 66 C. C. A. 555, 70 L. R. A. 353.

19 Mary Bell, 1 Sawy. 135, Fed. Cas. No. 9,199: Samuel Marshall, 54 Fed. 396, 4 C. C. A. 385; Ella (D. C.) 84 Fed. 471.

20 City of Milford (D. C.) 199 Fed. 956 (an excellent discussion of the purpose of the act by Judge Rose).

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, 23 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.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. 94.

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.29 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.3°

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."1

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.

Key City, 14 Pacific Coast

30 Emily B. Souder, 17 Wall, 666, 21 L. Ed. 683. 31 SARAH ANN, 2 Sumn. 206, Fed. Cas. No. 12,342; Wall. 653, 20 L. Ed. 896; Queen (D. C.) 78 Fed. 155; 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.