Imágenes de páginas
PDF
EPUB

POWER TO PROCURE NECESSARIES.

207

Few persons, indeed, are more tried or trusted than the faithful ship-master. And this trust follows him around the world. Abroad, he represents the shipowner, as agent; at home, he is the owner's trusted servant; on the ocean, a sovereign; in the harbor, a citizen his implied, unlike his express power, is discretionary and almost absolute.

In former chapters of this treatise, it has already appeared, that a master, with or without consultation, may order a jettison to lighten or relieve his ship; he may luff or wear ship to avoid collision; he may abide by or abandon a stranded ship or imperiled cargo; and, as may hereafter appear, he may, under an urgent and unavoidable pressure of necessity, sell, in a foreign port, either ship or cargo; and, in like manner, it will be attempted, in the present chapter, to be shown that, under a pressing, dominant, and uncontrollable condition of distress and necessity, a master, by an unsealed, simple contract, has the power to bind his owner and pledge his vessel as security for needed stores, provisions, supplies, repairs, or other necessaries, furnished him in a foreign port, when destitute of funds, devoid of credit, and all other resort or resource is, or only seems to be actually impracticable, but that of a loan. A master may exercise the same implied authority at the home port, if the owner be there unrepresented, or is absent, or may not be within call or communicating distance.

By the concurrence of both English and American authorities, as well as by the general maritime law, this proposition is universally sanctioned, as I think that a master may, in a foreign port, procure necessaries proper for completing a voyage; and for necessaries

208

LIEN ON DOMESTIC OR FOREIGN SHIPS.

so furnished, the furnisher (whether merchant, broker, carpenter, ship-chandler, shipwright, mechanic, materialman, or other person), upon the return of the ship to the home port, shall, by the maritime law, have a pledge, privilege, hypothec, or lien on the ship for the payment of such necessaries so furnished; and ultimately the doctrine must inevitably be, until payment is made. This proposition is applicable to and embraces all foreign vessels. But the same principle may be, and by local legislation is, so extended as to apply to domestic vessels. For years, Maine, Massachusetts, New York, and other States have had such legislative enactments. Several decisions will be referred to, in which a consideration and discussion of those acts has taken place. Where a lien is given by any local legislation in behalf of builders and others, on domestic ships, the right and remedy are both special; and therefore should be asserted by the process and in the manner specially provided for by the local legislation. All required forms should be conformed to. To preserve a legal lien, the party should seasonably begin to assert it. He must be diligent and not remiss in seeking his remedy for such special right: otherwise he may, by laches, lose both right and remedy; for the waiver of a lien is as substantial a defense in these cases as would be an answer that the necessaries were furnished upon the personal credit of a party.

At no period, hardly, has the legislation in England been salutary and stable, and the adjudications uniform. During the time of the English Commonwealth, however, something like consistency and system prevailed. But this was not of long duration. Immediately after the Restoration, the course of British legislation again be

LAW OF ENGLAND VARIABLE.

209

In

came retrogressive; or, at any rate, ceased to be progressive, in regard to the maritime liens of material-men. A distinctive feature in the republican parliament of Great Britain is, that in 1650, it greatly extended, by legislation, the then existing navigation laws; so as to prohibit all foreign ships from trading with its American plantations without first obtaining a license. 1651, the same parliament passed the famous Navigation Act, prohibiting the importation into England or Ireland, or any of the Colonies, of goods or commodities which were of the growth, manufacture, or production of Asia, Africa, or America, unless imported in ships belonging to English subjects, and of which the master and greater number of the crew were English subjects. This became and continued the commercial policy of England until the present century.

But, in regard to the law of England, at that period, regulating the rights of material-men, for repairs made, or supplies furnished, the course of British legislation has materially differed in this respect. In those countries which are governed by the civil law, repairs and necessaries form a lien on the ship. The same doctrine prevailed in England, for a long time, in its maritime courts, when it was at length overthrown in the reign of Charles II., by the courts of common law, and the House of Lords. Nevertheless, the practice by the Court of Admiralty of paying material-men out of the proceeds of a sold ship, prevailed until it was pronounced illegal by the Judicial Committee of the Privy Council in the case of the Neptune (3 Knapp. 94); overruling the decision of the Court of Admiralty in the same case, reported 3 Hagg. 142. This modified rule has been acquiesced in, as will appear by many reported cases

210

RECENT AUTHORITIES MORE UNIFORM.

since. In the New Eagle (10 Jur. 623), the Admiralty Court followed the doctrine as laid down in 3 Knapp, 94, supra. Such remained the practice in England, until by the 3 & 4 Vict. c. 60, sec. 6, jurisdiction was expressly conferred upon the High Court of Admiralty to decide all claims for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such vessel were within the body of a country, or on the high seas, at the time when the cause of action accrued.

In the exercise of this jurisdiction, the admiralty courts were bound to act equitably so as to protect the interests of all parties having having a bona fide lien on the property. The Alexander, 1 Wm. Rob. 294.

By the more recent decisions of the admiralty courts, during the reign of the present sovereign, a just and enlightened liberality has been extended towards those persons who have been found willing to supply to a master, under circumstances of distress, the necessaries requisite to enable him to prosecute or complete his voyage. Notwithstanding this want of uniformity in British legislatures and courts, parties, both in England and the United States, are now substantially placed upon the same footing. So that if necessaries shall have been furnished, in a foreign port, to a master, in an emergency, acting within the scope of his implied authority, the person furnishing such supplies will thereby acquire a lien upon the ship as security therefor; unless one of two contingencies shall upon proof appear, either that the supplies were furnished upon personal credit, or other waiver of the legal lien. When either of these facts are made to appear in proof, it will constitute a valid defense in a suit for necessaries.

TEST OF MASTER'S AUTHORITY.

211

When the pleadings are so framed, the precise condition of the ship and exigency of the master, should be searchingly investigated, in order to ascertain

First. If the master acted within the scope of his implied authority, and under an invincible necessity. Second. If there were no collusion between the master and the person furnishing the supplies; and Third. If no other possible resource were open for a prudent master, as the agent of the owners, to pursue.

When these general preliminaries shall have been fully settled, it will become material to know further, somewhat of the nature, description, character, and intended use of the supplies procured, before a primú facie case will be legally established, rendering the ship or owners liable. If it be so, then either of the suggested defenses of credit or waiver may be properly pleaded or relied upon. Under the general maritime law, either credit or waiver would be a substantial bar; and many authorities may be cited to this effect. The giving a credit, in the case of either a foreign or domestic ship, is practically a waiver of the legal lien.

In Massachusetts, St. 1848, ch. 290 was enacted; whereby it was provided, that when any debt was contracted for labor performed, or materials used in the construction or repair of any vessel within the Commonwealth, such debt should constitute a lien for its security and payment. On three several occasions, at least, did this act come under the consideration of the District Court for Massachusetts, and there received from Judge Sprague some judicial construction or interpretation. First in the John Wells, Jr. (1 Sprague, 178), when it was determined that necessary repairs made in this State upon a vessel belonging to another State, created

« AnteriorContinuar »