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NECESSITY AND GOOD FAITH JUSTIFY THE MASTER

ing to this latent authority. And when both concur and the difficulties which beset a master are such as to constrain him to exercise this extraordinary power, in order to avert or avoid the pressure of an impending necessity, then, in such exercise thereof, the master is bound to observe the utmost good faith.

From this survey of the law as it has been, and as it now is, may be readily deduced certain plain principles, in reference to the navigation and employment of ships, such as

1st. That a ship-master is constructively a shipowner's agent; and, as such, in a time of exigency, is properly empowered to act at his discretion in behalf of the owner and all concerned.

2d. His situation and character afford conclusive presumption, that he has the requisite implied authority to initiate and adopt all measures, which may be deemed or seem necessary, to render the employment of the vessel efficient and beneficial to his employer and all other parties concerned.

3d. When, therefore, a ship abroad is so disabled by sea-damage or disaster as to stand in need of repairs, supplies, or other necessaries, it is competent for a master, as it is within the scope of his implied authority, to procure such necessaries; pledge both owner and ship for their payment; and, by making the contract therefor, create a lien in behalf of the furnisher for his security.

It has already appeared, in this treatise, how dependent all concerned necessarily are upon a prudent and skillful master, in properly observing the rules of navigation for avoiding collisions; in salving fragments from a wreck; in holding generally the mariner to his stipu

IN THE EXERCISE OF HIS IMPLIED AUTHORITY. 223

lated duty; in making, or forbearing to make a jettison; in pledging ship or cargo for needed maritime loans; creating and conferring maritime liens, when requisite for the voyage; and, finally, in procuring all reasonably fit and proper supplies and repairs, demanded by a legal necessity, in the course of a voyage.

It now remains to consider the power of a master to sell either ship or cargo; and, in the ensuing brief chapter, it may be seen wherein the elements, ingredients, and general prerequisites, which justify a resort to the exercise of this power to sell, shall appear to differ materially, legally, or substantially from the requisites and sources of the master's other implied powers; and I apprehend that, upon examination, it will be found that the existence and exercise of this power to sell, is traceable to, and depends upon, 1st. Constructive agency; 2d. Legal necessity; and 3d. Fidelity, or uberrima fides.

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• POWER OF SALE IN FOREIGN PORT

CHAPTER IX.

MASTER'S POWER TO SELL.

THIS is a special implied power; not a general authority, to be invoked at pleasure. It is derived from the character and relation of master to owner, and results from a master's official appointment to the charge of a ship. It is not commonly nor constantly to be exercised, but only occasionally evoked.

As a general rule, a master is not invested with this power. This is the view which pervades the earlier English authorities, and is entirely consistent with the doctrine as embodied in the French Ordinance, Art. 19, Liv. 2, Tit. 1," Du Capitaine," where it is recorded that a master can only sell "en vertu de procuration espèciale des propriétaires," or by the owner's special authority.

Such was the general law of England formerly; and in those older cases, reported in 2 Ld. Ray. 9841 and 1 P. Wms. 392,2 it was judicially held that though a master might hypothecate, yet he had no authority to sell; and a sale, made by him, though it might be in due form, would fail to transfer any property; and the Ordinance, in its general tenor, is conformable to this doctrine.

In Tremenhere v. Tresillian (1 Sid. 452), a sale by the master was held to convey no property to the purchaser. And although a case of necessity, legal, moral, 2 S. P. Ekins v. East India Company.

1 Johnson v. Shippen.

NOT TO BE EXERCISED, EXCEPT UNDER NECESSITY. 225

or physical, would seem susceptible of being established from the surrounding circumstances, yet it has been supposed that there might have been, in the opinion of Sir Matthew Hale, who presided at the trial, some unreported, qualifying facts, which tended to present an equivocal necessity, and were calculated to render the master's good faith suspicious, and a purchaser's collusion possible. Abb. Ship. 3.

Other English authorities, to the same effect, might be cited; but it would seem to be superfluous. At the present moment, this former conflicting, variable, and discrepant character in English legislators and judges, has gradually disappeared; and England, upon this subject, seems to be now entirely in harmony with the United States. It may, therefore, be affirmed that, without the special authority from the owner, or the advice of a competent survey, or a judicial decree of some local maritime court, a ship-master has not any general power to sell his vessel in a foreign port; and, as a general rule, this is inflexible. But all general rules may have exceptions; and that prohibiting the power of sale to the master, comes within the category. The exception is a necessity. By different jurists, writers, and magistrates, this required necessity has been variously denominated urgent, extreme, pressing, supreme, absolute and utter, controlling, imperious, inevitable, invincible, uncontrollable, legal, physical, moral, inextricable; and when such necessity shall exist, then the master, falling back upon his implied authority as constructive agent of the owner and all concerned, may exercise the power of sale in a foreign port.

It may be declared just as emphatically, though in fewer words, thus: that a master, in case of a domi

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SALE UNDER NECESSITY VALID, AND PASSES CLEAR TITLE. nant, imperative, invincible necessity, incapable of being averted or avoided under the surrounding circumstances, has the power, in a foreign port, to sell his ship. A sale so made, is justifiable, and would be valid. All the incidents and consequences of a valid sale follow and flow from it. Privileges and preferences are obliterated or become transferred; liens are extinguished or do not attach; and the conveyance, in whatever form it may be made, whether with or without the customary muniments of shipping transfers, passes to the purchaser a clear, legal, and unincumbered title. Thereby and thereupon, the res subjecta or ship becomes freed from all express or tacit hypothecs or liens; and precisely when the purchase-money, or proceeds of the sale, passes from the purchaser to the hands of the master or other authorized receiptor, all adhering hypothecs and tacit liens slide silently from the rem subjectam, and fasten lawfully upon the proceeds, in tempore ipso; and there adhere and continue unextinguished, until ultimate payment or satisfaction shall have been made to the privileged creditors, or lien-holders.

The ordinary marks and tests which accompany a justifiable resort to, and exercise of this implied power of sale by the master, are to be found, as already stated, at the conclusion of the preceding chapter. Further examination and reflection only confirms the conclusion, then partially reached, that these tests were implied agency, legal necessity, and absolute good faith or uberrima fides in the master.

The first, agency, is the source whence this power of sale is primarily derived; the second, necessity, is the legal cause or material occasion for resorting to its exercise by the master; while the third, good faith, plainly