BOTH ADOPT THE RULE AND ITS EXCEPTION.

237

For a long period, the general, ancient, negative rule remained unqualified, and seemed to be safely entrenched behind the highest authority there. Sir Matthew Hale was among the earlier judicial celebrities to promulgate it. First, it was held that a sale abroad by a master transferred no property; then that a master could not sell, although he might hypothecate his ship;2 thirdly, that he could only sell in case of an extreme necessity; and lastly, he might sell if it were best for all concerned, and if nothing better could be done; or as a forlorn hope. Thus, step by step, the exception of necessity hath steadily become more and more acceptble in the English tribunals; until it is, at length, permanently engrafted upon the old rule, as part and parcel thereof, making it in modern times substantially the rule itself. As matter of fact, it is oftener invoked into legal proceedings, and covers more controversy, and concludes more cases than the original rule itself.

This exception, therefore, having become recognized universally in both countries, the English and American doctrine is now, theoretically, the same. In what respects their courts may differ in practically applying and giv ing force and effect to this doctrine, might be interesting as a speculative inquiry. But the courts of the United States will incline to follow the legitimate and logical consequences of the doctrine as contained in the modern modified rule.

That rule may then be thus stated. By the general maritime law, a master has not any express power to sell his ship abroad; and, unless it be ex necessitate rei, he

1 Sid. 452, Tremenhere v. Tresillian. 22 Ld. Raym. 276, Johnson v. Shippen. 3 4 Camp. 138, Underwood v. Robertson. 4 7 M. & S. 322, Hunter v. Parker.

RULE STATED AND AMERICAN CASES CITED.

238 has no implied power. But when, by reason of seaperil or damage, he may be compelled to put into a port of distress for repairs, and there, destitute of resources, credit, or other means to procure such repairs, finds that he is prospectively prevented, by the compulsion of an impending necessity, from further prosecuting his voyage, then a master may, upon his own judgment and discretion, resort to the exercise of that necessary power implied by the law, and sell his ship for the benefit of all concerned, as their agent. Throughout, the master must act optima fide; and if a sale be made by him under such circumstances, such sale, so made, will be valid in law to pass property to the purchaser, and will extinguish all existing liens, or rather transfer them from the ship sold to the proceeds of such sale.

The American cases, The Tilton, 5 Mason, 475; 2 Sum. 206, The Sarah Ann; 5 Pet. 620, The Patapsco Insurance Company v. Southgate; 13 ibid. 400, New England Insurance Company v. The Sarah Ann; 19 How. 157, Post et al. v. Jones et al., fully justify the master in making sale, in a foreign port, of his vessel, in an emergency.

But this whole subject and the authorities have been recently passed upon, in the First United States Circuit, by Mr. Justice Clifford, in an unreported case, in which all the English and American cases were incidentally noticed or referred to; whether applying to the implied power, necessity, sale, its effect, proceeds, liens, or amelioration expenses. And so thorough is the court's exposition, and so just its conclusions in the case, that, upon appeal, I learn the decision has been affirmed by the United States Supreme Court.' It has been my priv ilege to examine the exhaustive argument of the claim

1 Vide The Amelie, 6 Wal. 18, and note at end of this chapter.

THE AMELIE.

MR. JUSTICE CLIFFORD'S OPINION.

239

ant's counsel, and inspect a copy of Judge Clifford's very able opinion; and from such examination and inspection, it would seem to be a not unfitting conclusion of this chapter, to here insert a brief statement of the facts and the point decided in the libel of "Charles Fitz, appellant, v. The Galiot Amelie."

On the 16th March, 1862, the Plata (afterwards the Amelie) sailed from Surinam to Boston with a cargo of 242 hogsheads of molasses, 50 do. and 9 barrels of sugar, and 16 pieces of old copper. She encountered rough and tempestuous weather, and on the 11th April, was thrown on her beam ends, broken badly on her larboard side, the water rushing in beyond the pumps' capacity for relief; when, by good seamanship, she was put away upon another tack for a port of refuge, and safely reached, finally, Port au Prince. There, after three surveys, she was sold by the master, and the claimant, B. Riviere, became the purchaser; and insisted at the hearing, that such sale was justified by necessity. The court, in regard to necessity, say: "Perhaps it is not possible to devise any rule which will apply to all cases; but it is believed that some approximation may be made in that direction.

"When the ship is disabled by perils of the sea, and the master has no means of getting the repairs done in the place where the injury occurred; or if, being in a place where the repairs might be made, he has no funds in his possession, and cannot, on account of the distance, or other sufficient cause, communicate with the owner; and is not able to raise the necessary means by bottomry or otherwise, to execute the repairs; or, if the injuries to the ship are so great that the cost of repairing her would be greater than her value after the repairs

240 LIEN, ON SALE, PASSES FROM THE REM TO PROCEEDS. were made; or if the ship is disabled so that she cannot proceed, and the cost of repairs will amount to more than half her value, reckoning one third new for old, and the master has no funds, and can neither procure any, nor communicate with the owner, and the whole circumstances are such that a prudent owner would decide to break up the voyage; then the master is justified in selling the ship, as the best thing that can be done for the interest of all concerned. Such a state of circumstances creates the moral necessity, the urgent necessity, the extreme necessity, the imperious, uncontrollable necessity, described in the decided cases, and authorizes the master to sell the ship, if in his judgment, honestly exercised, the salę will best promote the interest of all concerned. When those conditions, or any class of them concur, it becomes the duty of the master to decide the question; and if he finds that the disaster will be most alleviated, and the interests of all will be best served by a sale, then it is his duty to act in the premises; and if he makes the sale bona fide as the agent of all concerned, it is valid, and all are bound by his acts."

Another, and the principal point decided, is specially important, because novel; which is, that a justifiable sale gives the purchaser a title, free from secret or other liens. These liens are, by sale, silently detached from the rem and legally attach to the proceeds. And Judge Clifford says: "The lien, when the ship was lawfully sold, was transferred to the proceeds, which became, by operation of law, the substitute for the ship, in the sense of the admiralty law. Unless such be the law," he adds, "then the authority conferred to sell in a case of necessity is a mockery, as no prudent man would ever purchase such a title."

A PROPER SALE BY MASTER SHOULD PASS PROPERTY. 241

The concluding language of the court, in this last case, seems to be strong in expression; but not stronger, perhaps, than so just a legal conclusion may warrant. All deep convictions produce intense expressions; and absurdities in logic cannot fail to engender honest surprise, if not indignation.

To confer, then, upon a master, the power to sell, and yet withhold from him the right, after sale, to give to the purchaser a clear title, is an absurdity; and, as such, not undeserving of expressed judicial indignation. And such expression, on proper occasions, does not appear to be out of place; but, on the contrary, in the present instance, is both timely, salutary, just, and refreshing.

Thus, to bestow on a master the exceptional power of sale abroad, and render it his duty, in a necessity, to exercise that power; and, after conforming to all the preliminary requirements, such as consulting the owner's local agents, consignees or correspondents; advising with the resident consular or commercial agents, Lloyd's agent or other insurance representatives; procuring a competent survey and thence obtaining a report, verbal or in writing, recommending summary sale; laboriously but vainly striving, meanwhile, to raise the requisite funds on his own or owner's credit, or by bottomry of ship or hypothecation of cargo; and finally, upon a moral compulsion, acting upon his own judgment, fairly exercised, and after due notice, making sale at public auction as best for all concerned, and transferring his ship to a purchaser by bill of sale, proper in form; to be then notified judicially or advised professionally, that a master's sale, though justified, is null and nugatory, and cannot pass a clear title, what would this

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