232

DECREE AND SURVEY MAY JUSTIFY MASTER'S SALE.

ity to justify a sale. Effect must not then be confounded with cause. Paramount necessity alone authorizes sale, without either the advice of a survey, or decree of a local court; the former is the master's warrant and authority; the latter are respectively substituted justifications, rendering the master's reliance upon his implied authority not at all necessary, but supererogatory.

Whether the necessity be regarded as a definition of a predicament or a deduction to be drawn from a state of facts, constituting that predicament, the dictum and inference are equally unsatisfactory, as reported in Somes v. Sugrue, 4 C. & P. 276. C. J. Tindal, discussing and defining necessity as an abstract idea, first makes a negative statement, and thence deduces a conclusion as follows: "There can, in such a case, be neither a legal necessity, nor a physical necessity; it must, therefore, mean a moral necessity." Without any impeachment of this as a metaphysical statement, it cannot, indeed, rank very high as a logical proposition. The dictum is from too high authority to be deemed careless.

The more the expression, paramount necessity, has been considered and reflected upon, the better does it seem to be suited to present the legal idea of such a necessity as should precede, in order to justify a sale by the master to a foreign purchaser of his vessel.

In the English and American common law court cases, already cited, the present prevailing doctrines of the Admiralty are but partially exhibited. The older doctrine, that a master had no power to sell in a foreign port without special authority from the owners, is adhered to in the cases cited from 1 Sid. 452; 1 P. Wms.

ENGLISH CASES.

EXCEPTION ENGRAFTED UPON RULE. 233

392; and 2 Ld. Raym. 984. In these authorities, the general negative rule is stated and sustained; but the exception to it is seemingly recognized and assented to in Underwood v. Robertson, 4 Camp. 138; Hunter v. Parker, 7 M. & W. 322; Hayman et al. v. Molton et al. 5 Esp. 68, by the common law courts; while in the Fanny and Elmira, Edw. 117 (1809); the Lord Cochrane, 2 W. Rob. 335 (1844); and the Catherine (formerly the Croxdale), 1 Eng. L. & Eq. 679 (1851), the possible exception to the rule is not only assented to in the Admiralty, but asserted; at first, indeed, by Sir William Scott hypothetically; and afterward, expressly, by Sir Stephen Lushington.

The case in Edwards is singularly suggestive; although Sir W. Scott's opinion consists principally of mere dicta as to what the law might be if he were then called upon to declare it. It was the case of a recaptured neutral; and upon decreeing restitution, the controversy was between a pretended purchaser, and the original, ostensible owners; and the latter were restored to possession by the court. The facts generally were, that the Fanny and Elmira, an American vessel, commanded by Captain Hicks, was sold by him at Sligo, Ireland, to P. Ormsby, a Kentuckian, with no express authority from the owner. It seemed the vessel got on the rocks in Sligo harbor; the master called a survey, which recommended, as for the interest of all concerned, a sale by the master; estimating that the costs of repairs would be £1,500, an amount greater than the probable value of the vessel. The vessel was accordingly advertised and sold for £305; the purchaser paying £107 3s. 9d, to the Messrs. Hume, as the correspondents of the owners at Sligo; and the residue was carried to

234 SIR W. SCOTT ANTICIPATES THE PREVAILING DOCTRINE.

account between the master and the purchaser. One fourth part was afterward sold by the purchaser to the master, at the rate of the purchase, provided the master would navigate her. To this the master assented; and sailed for Riga. On his return, he was captured by the Danes; and afterwards recaptured and carried to England, by the British sloop Hound. There, the vessel came into the possession of the British Admiralty Prize Court; and two claimants intervened for possession of the property, upon decree of restitution, Ormsby, the purchaser, and Messrs. Coit & Edwards of New York, the registered owners. By whomsoever owned, the vessel was clearly neutral; and the only question for the court was, to whom she should be res tored.

Sir W. Scott, in restoring the vessel to the owners, and refusing even amelioration expenses to the purchaser, gave one of his characteristic opinions; in which he incidentally touched upon, and anticipated the legal phase, feature, and view to be taken in the various discussions which have arisen subsequently, in cases affecting a master's power to sell; such as necessity, damage, repairs, resources, possibility of loans and advances, good faith, want of it, misconduct, fraud, collusion with purchaser, amelioration, and purchaser's right to indemnity; all of which were then, in 1809, foreshadowed in their legal bearings, with as much precision as if this magistrate were then actually declaring the law, instead of stating hypothetically what it might possibly be under a given state of facts.

The judge (p. 119) then said: "Although I do not know that such a power is given to the master by the general maritime law, yet, feeling its expediency, this

DR. LUSHINGTON FOLLOWS PARI PASSU.

235

court would strain hard to support the title of the purchaser. But then there must be the clearest proof of the necessity; it must be shown, not only that the vessel was in want of repair, but likewise that it was impossible to procure the money for that purpose."

In the Lord Cochrane (2 W. Rob. 335), Dr. Lushington says: "It is not to be denied, that under certain circumstances the master of a vessel, in the exercise of the discretionary authority with which he is invested, may sell and dispose of the ship; but this power I conceive to be strictly limited by law, and is only to be exercised under emergencies of great stringency; emergencies which it is almost impossible to perceive beforehand, and which I shall not attempt to define in the present instance." This was the language used by the Admiralty Court in 1844.

In 1851, the same distinguished judge, in the Catherine, formerly the Croxdale (1 Eng. L. & E. 681 et seq.), said: "I take the law now to be, that where an urgent necessity exists, which the master cannot meet, it is competent for him to sell the vessel.

"If money could have been borrowed, there is an end of the necessity, and it is clear that the master had not authority to sell the vessel. This is not the law of England peculiarly, but is the maritime law of the whole world, and that for the protection of all ship-owners against all masters.

"A British vessel, coming into a foreign port, cannot be sold by the master, so as to confer a perfect title against his owners, and extinguish all mortgage claims, and all liens on bottomry or wages, even in a case of necessity.

"It is the duty of foreign purchasers to open their

236 ENGLISH ADMIRALTY FOLLOW AMERICAN CASES, AND

eyes, and to take care what kind of bargains they make that they guard themselves against liens which adhere to the ship."

--

This was the case of a British ship sold by the master in a foreign port, as unseaworthy, with the consent of the British Consul, and at public auction. She had been bottomried, but it did not appear that any notice of the bond had been given. The purchaser made repairs, gave the ship a new name, and dispatched her for England. As the ship remained in specie, the bondholder sought to enforce its payment in admiralty. The defence was condemnation and sale. But the court pronounced for the bond; and observed, "I am not satisfied in this case that there was any necessity for a sale; and am of opinion that this was originally a valid bottomry bond, and that it can be lawfully enforced against the ship;" and also gave costs.

These authorities from the English Admiralty Reports, containing the advance opinions of Scott and Lushington in the years 1809, 1844, and 1851, are indeed suggestive; and, together with the five more recent cases in Spinks', Swabey's, and Lushington's Reports, are not only significant, but conclusive of what is the present prevailing doctrine in England, as to the master's power of sale in a foreign port. 1 Spinks, 46, The Eliza Cornish; Swab. 146, The Glasgow; ibid. 386, The Margaret Mitchell; ibid. 484, The Australia; and Lush. 261, The Bonita (formerly The Charlotte).

It is then quite plain how gradually, since the decision reported in 1 Siderfin, the English judicial mind has assimilated itself to the American, by practically adopting the doctrines and principles as expounded and applied by the courts of the United States, in reference to a master's power of sale abroad.