212

ACTS AND DECISIONS IN MASSACHUSETTS.

a lien by the law of Massachusetts, and by the general maritime law also. But in case a credit had been given for such repairs, the lien thus created could not be enforced until after the credit given had fully expired.

In the case of the Antarctic (1 Sprague, 206), the court in construing and applying the Massachusetts act of 1848, limited and restrained its application, and de termined that a lien for materials furnished upon a new vessel extended only to those actually used in her construction.

In the Sam Slick (1 Sprague, 289), it was held that the State lien was not lost, although the vessel sailed from one port within this State to another port of the same State; but having been driven by stress of weather into a port in another State, left on the following day for the first port of destination, and duly arrived there. See also 13 Gray, 134; 20 How. 393.

Subsequent to these decisions, new and further legislation seemed to be demanded. Accordingly, in the General Statutes of 1860, chap. 151, §§ 12, et seq., a new local lien-law was enacted. And though its provisions were extended and made much more specific, in order to supply defects pointed out by the judicial expositions already referred to, yet the new legislation was not designed "to affect the lien as now existing on foreign ships and vessels." Now, although the general maritime law remains unmodified, the local lien law of Massachusetts is very precise and comprehensive in terms. Its twelfth section reads as follows: "When, by virtue of a contract, express or implied, with the owners of a ship or vessel, or with the agents, contractors, or sub-contractors of such owners, or any of them, or with any person having been em

HER GENERAL LAWS.

213

ployed to construct, repair, or launch such ship or vessel, or to assist them, money is due to any person for labor performed, materials used, or labor and materials furnished, in the construction, launching, or repairs of, or for constructing the launching ways for, or for provisions, stores, or other articles furnished for, or on account of, such ship or vessel, in this State, such person shall have a lien upon the ship or vessel, her tackle, apparel, and furniture, to secure the payment of such debt which lien shall be preferred to all others thereon except mariners' wages, and shall continue until the debt is satisfied."

SECT. 13. Requires a statement to be filed, with the city or town clerk, within four days from the time of leaving the port where the debt was contracted.

SECT. 14. No inaccuracy of description of the ship or vessel, when built in two places, shall invalidate the proceedings.

SECT. 15. Defines the mode of enforcing the lien. SECT. 16. Sets forth contents of the petition to enforce the lien.

SECT. 17. Provides that amendments may be allowed by court;

SECT. 18. That claims of different persons may be consolidated;

SECT. 19. How claims shall be marshaled.

SECT. 20. Liens on foreign vessels are to remain the same as heretofore, and not to be affected by this act.

The mode of securing material-men in Massachusetts appears hereby to be singularly clear and comprehensive; the twelfth section, as recited, is a model of minuteness for enumeration of different claimants, and might well be adopted by New York, Maine, Pennsylvania,

214

MODERN DOCTRINES AS TO NECESSARIES.

Connecticut, Louisiana, and other States in the North and Northwest, which have attempted local legislation in behalf of liens of material-men on domestic vessels.

By such legislation, remedies are provided for almost every conceivable claim of merit. All persons, from shipwright to day-laborer, are included within its provisions; and, if they duly conform to its special mode of granting relief, cannot fail to secure it. The lumberman is secured as well as the shipwright by lien; and the obvious defects, formerly existing in this lien law of Massachusetts, are radically remedied.

In the case of a domestic vessel, therefore, the lien security seems to be complete in behalf of such as may hereafter furnish materials, supplies, repairs or other necessaries.

In the case of the Neptune (3 Hagg. 142), the English Admiralty Court defined material-men to be those persons "whose trade it is to build, repair, or equip ships, or to furnish them with tackle, and necessary provisions."

If this imports limitation or exclusion, no such limitation or exclusion would seem to be applicable under the lien law for this State; but, as has been before stated, a more comprehensive remedy may be enforced against domestic, than even foreign vessels, under the general law.

The general doctrines in regard to necessaries, as declared heretofore in England, and now upheld both in England and the United States, will be found fully stated in the authorities cited in this connection.

In England, The Neptune, 3 Hagg. 142; S. C. 3 Knapp, 94; The Baddington's, 2 Hagg. 425; Lush. 154, The Onni; ibid. 329, The Comtesse De Frègeville;

AUTHORITIES IN ENGLAND AND THE UNITED STATES. 215

Swab. 158, The Desdemona; ibid. 165, The Wataga; ibid. 260, The Nordstjermen; ibid. 344, the N. R. Gosfabrich; ibid. 353, The Perla; ibid. 514, The Afina Van Linge; Brown. & Lush. 32, The Ella A. Clark (sometimes cited as The Golden Age); 1 Adm. & Eccl. Rep. 107, The Aaltje Willemina; 1 W. Rob. 357, The Alexander; Webster v. Seekamp, 4 B. & A. 354; Belden v. Campbell, 6 Exc. 886; 17 L. T. 257; The Salacia, 32 L. J. 43; Carey v. White, 1 Bro. P. C. 284; 3 W. Rob. 277, The Helena Sophia; McIntosh v. Milcheson, 4 Exc. 175; The Bravo, decided June 7, 1853; Edwards v. Havill, 22 L. T. 87; Organ v. Brodie, 10 Exc. 449; The Constancia, 10 Jur. 845; Rich v. Coe, Cowp. 639, by Lord Mansfield, but vide Wester-Deal v. Dale, 7 T. R. 312, by Lord Kenyon, who doubts Lord Mansfield's doctrine in Rich v. Coe; and the above are the leading and more recent English authorities to which, and the cases therein referred to, the student is commended.

Some of the leading American cases will here be referred to The Fortitude, 3 Sumner, 228, in which Mr. Justice Story held that a master under necessity might procure such supplies and repairs as were fitting and proper to enable him to pursue and complete his voyage; The Bridgewater, Olc. 35; The Brig Nestor, 1 Sum. 75; Bradley v. Bolles, 1 Abb. 569; Whitten v. Tisdale, 43 Me. 451; Scott v. Propeller Plymouth, 6 McLean, 463; Cox v. Murray, 1 Abb. 340; The Joseph Cunard, Olc. 121; Davis v. Child, Daveis, 71; Gurney v. Crockett, Olc. 490; Perkins v. Pike, 42 Me. 141; Boone v. The Hornet, Crabbe, 426; The General Smith, 4 Whea. 438; Davis v. Brig, Gilp. 479; Phillips v. Scattergood, ibid. 1; Harper v. New Brig, ibid. 536; Tree v.

216

MASTER'S IMPLIED POWER.

The Indiana, Crabbe, 479; The Bark Chusan, 2 Story, 255; Peyroux v. Howard, 7 Pet. 324; Larchet v. Sloop Davis, Crabbe, 185; The St. Jago de Cuba, 4 Wheat. 409; Zane v. Brig President, 4 Wash. C. C. 453; The People's Ferry Co. Boston v. Beers, 20 How. 393; North v. Brig Eagle, Bee, 78, where it was determined that supplies to a foreign vessel, in a neutral port, were secured by lien; The Young Mechanic, 2 Curtis, 404; Minturn v. Maynard, 17 How. 477, where the Court declined to admit a libel to be filed by agent against his principal, the owner; The Bark Laura, 19 How. 22; The Sultana, 19 How. 359, where it was held that coal was not deemed necessaries and so conferred no lien.

By the legislation and authorities referred to, it will be seen, that a ship-master under his implied or express authority, may procure such necessaries as the proper employment of his vessel, and successful prosecution of the voyage may seem to require. Generally, it is discretionary with the master himself. No rule seems to have been laid down to control his action except this — that his acts in this respect should be the same as the proba ble acts and conduct of a prudent owner. But in the Fortitude, supra, the master, in the exercise of his authority to procure repairs and supplies for his ship in a foreign port, is not restricted to the procuring of such supplies and repairs only as are absolutely and indispensably necessary, but he may so exercise his power as to procure all such necessaries as are reasonably fit and proper for the ship and voyage.

To the same point vide Webster v. Seekamp, 4 B. & A. 352.

From the authorities referred to, the following legal propositions may be derived: