these liens depending upon State laws, and not arising out of maritime contract, to be enforced by the State courts." Soon after, the court repeated that such contracts for repairs and supplies are not maritime contracts, and that they are not to be enforced in admiralty, though a State give a lien;1 but the organ of the court, Mr. Justice GRIER, distinguished the case he was deciding from that of Peyreaux v. Howard, saying that the latter was based on a lien given for repairs at New Orleans, within the flow of the tide, while the case of Roach v. Chapman, in which he was delivering the decision, rested on a Kentucky lien only. So, it will be seen by the reader, the extension of the admiralty to all navigable waters sponges out the line of demarkation drawn between the two cases. 3 It was held, in The Feronia, that no rule of court could destroy the right of a libellant to his procedure in rem against a vessel; and, in The Kate Tremaine, that a proceeding in rem is not a mere remedy but a substantial right, of which, if a party is deprived, he, in effect, loses his lien; and, even in The Lottawanna, that a "lien is a right of property." We cannot see, therefore, by what authority the action with its coupled right, can be abrogated by a rule of court. It is certainly true that no court can, by rule, create maritime liens.4 Whether or not the remedy can be withheld, it is in existence under the present rule, and the courts now enforce state liens, for repairing or supplying vessels in a home port, by direct action against the lien-bearing vessel, though there was uncertainty before the adoption of the rule." A lien not maritime can only be asserted against proceeds. man, 6 Bissell, 367; The Grace Greenwood, 2 Id. 131; Stewart v. George, 3 Hughes, 459; The Daniel Augusta, 3 Hughes, 464; Scott's Case, 1 Abb. (U. S.) 336; Fuller v. Nickerson, 69 Me. 228; The Lady of the Ocean, 70 Me. 350; White's Bank v. Smith, 7 Wall. 646; Aldrich v. Etna Co., 8 Wall. 491; Wilson v. Lawrence, 18 Hun. 56; The General Burnside, XI. Law Reporter, (1881,) p. 147. § 473. Liens Enforced when Arising in a Foreign Port, or in a State where the Vessel is not Owned. The lien of material men is of high rank. Judge STORY placed it in advance of a bottomry bond of older date.1 It is not divested by the sale of a ship to an innocent purchaser, without notice, provided it be asserted within a reasonable period. It may be enforced against the proceeds of a vessel on which it lies, after her sale, in execution of a judgment, by the United States. But it cannot follow the vessel herself, after her judicial declaration of forfeiture; it would be satisfied out of the proceeds, in such case, should the material man make timely appearance and assert his lien by way of intervention, unless the case be one of prize. There is no implication of a lien upon a vessel, (when such lien is not expressed,) in a contract made by material men directly with the owner.4 But in their contracts with the master, the lien is implied. The master is not only the confidential agent of the owner, and therefore capable of binding the latter by his contracts with material men, and of binding the ship as primarily indebted for supplies and repairs received, but he stands towards third persons as the attorney in fact of the owner, by virtue of his office, without the exhibition of any power of attorney, when he has been appointed by the master, and when the contract is absolutely necessary. 5 The master, however, must not abuse his high trust. He must obligate the ship and freight for only such repairs and supplies as are reasonably necessary. To this extent it is said he may bind his principal even at the place of the owner's residence; but this is said to require an express hypothecation, except in case of shipwright, who retains possession of the ship which he has repaired.7 "The principle on which the owner is bound for the acts of the master,” says Judge WARE,8 "is supposed to be borrowed by the maritime law directly from the exercitory action of the 1 The Jerusalem, 2 Gal. 345. 2 The Barque Chusan, 2 Story's R. 456. The Scattergood, Gilpin's R. 1. 5 The Fortitude, 3 Sum. 228. Abbott on Shipping, Part ii., ch. 3. 7 Id. The Phoebe, Ware, 265. civil law. He is not liable in his character of owner or proprietor of the vessel, but as employer, for that is the meaning of the word exercitor. In that character he is responsible for the acts of the master, first, because he is his agent and is appointed by him, and subject to his orders; and, secondly, because he is entitled to the earnings of the vessel. The definition of exercitor is, the person who receives the earnings of the vessel. Exercitorem autem eum dicimus ad quem obventiones et reditus omnes perveniunt. Dig. 14. 1. 1. 15.” S474. Owners, Charterers, Etc. In the same case, the learned judge held that where the owner and a charterer shared together the profits of a voyage, they were "co-exercitors." But, where there was a charter party, and the owner had no interest in the earnings, the charterer is the principal of the master whom he employs, and is bound by his agent's acts and contracts, while the owner is not personally bound by them. And he cites several authorities, to show the legal construction of partnership contracts between owners and charterers. In the first cited case, Judge PUTNAM held that, to render the owner of a vessel liable for the contracts of the master, it must be proved that the vessel was in the employment of the owner, that the master was appointed by him, and that the master acted, in making such contracts, within the scope of his authority. But this decision should not, we think, be considered of general application, since the presumption of authority must be generally held to attach to the master's office. The court was expounding a contract, amounting to this: The vessel to be at the risk of the owner, and, after deducting the first cost of the cargo, he was to have two-fifths of the net proceeds; the charterer to purchase the cargo at his own expense, and to victual and man the vessel. The charterer commanded the vessel himself. It was upon this contract that Judge PUTNAM decided as above stated. In the second case cited, Chief Justice PARKER held that where one chartered a vessel for six months, rendering to the 1 Reynolds v. Toppan, 15 Mass. 370; Taggard v. Loring, 16 Mass. 336; Thompson v. Snow, 4 Greenleaf, 268; Emery v. Hersey, Id. 407. owners a moiety of her earnings, and sailed in her himself as master, he was pro hac vice the owner, so that he could not be charged with barratry, though his conduct was certainly barratrous if he were merely the master. The subject of this chapter is so intimately interwoven with that of maritime liens in general, that it may here be relegated to the chapters that follow. The particular questions affecting it have been fully treated in the reports.1 1 A maritime lien is not implied in a ship-building contract, or one to furnish material for the construction of a vessel: Peoples' Ferry Co. v. Beers, 29 How. 393; Roach v. Chapman, 22 Id. 129; Young v. The Ship Orpheus, 2 Clifford, 29. Even if the work be the completion of the vessel after she has been launched: The Iosco, 1 Brown, 495; Wilson v. Lawrence, 82 N. Y. 409. But there are exceptions: The Eliza Ladd, Deady, 519. Material furnished for building a ship, even in a state where the owners do not reside, is subject to the same rule-there is no maritime lien: Edwards v. Elliott, 21 Wall. 552. The maritime lien arises when loans are made, in a foreign port, on the credit of the vessel, to pay for necessary repairs or supplies: Crawford v. The William Penn., 3 Wash. C. C. R. 484; The Emily B. Souder, 17 Wall. 666; The Bark J. F. Spencer, 5 Benedict, 151; The Brig Bridgewater, Olcott, 35; The Rigi, Law Rep. 3 Eccl. & Ad. 516; The Sarah Harris, 7 Ben. 28, 177; The Ship Fortitude, S Sumn. 228; The Nelson, 1 Haggard, 169; The Royal Stuart, 2 Spink, 258; The Grapeshot, 9 Wall. 141; Thomas v. Osborn, 19 How. 29; Davis v. Child, Daveis, 171. In the enforcement of State liens for repairs and supplies, they are marshalled according to the maritime rule: Hatton v. The Melita, 3 Hughes, 494; The Katie, 3 Woods, 182. But those for repairs or supplies in a foreign port have been given the higher rank: The John T. Moore, 3 Woods, 61; The Bernard, 2 Fed. Repr. 712; Though not invariably: The Burnside, 3 Fed. Repr. 228; The De Wolf, Id. 236; The Daniel Brown, 9 Ben. 309. State statutes giving the lien must be strictly followed, to render them enforceable in admiralty: Boon v. Hornet, Crabbe, 426; In re Indiana, Id. 479; The New Brig, Gilpin, 473. Residence of the owner, rather than place of enrollment of the vessel, determines whether the port is a home or foreign one: The Alice Tainter, 5 Ben. 391; The Plymouth Rock, 13 Blatch. 505; The Golden Gate, 1 Newb. 308; The Bernard, 2 Fed. Repr. 712. rien, 3 Ben. 394; Kemp, 2 Low. 478. lien is whether the credit is given to the ship or to its owners: The Plymouth Rock, 23 Int. Rev. Rec. 129; The Williams, 1 Brown, 208; The A. R. Dunlap, 1 Lowell, 350. If given to the ship, in case of necessity, though she be represented by other agent than the captain, she will be bound: The Kalorama, 10 Wall. 213; The Guy, 9 Id. 758; The Commonwealth, 20 Int. Rev. Rec. 64; The Belle Lee, 12 Id. 123; The Walkrien 3 Ben. 394. But see The St. Jago de Cuba, 9 Wheat. 417. But see the WalkThe George T. The test of the 475. Nature and Requisites of the Bond. Bottomry is the hypothecation of a ship's bottom to secure a marine risk. It is a contract between the borrower and lender of money, in a case of necessity for the salvation of the ship, in which the ship itself is bound for the payment. It is of the essence of such a contract that the risk be a maritime one, and taken by the lender of the money.1 The risk must be that of both principal and interest.2 The rate of interest is always large, in consideration of the risk of losing the money loaned. It is never governed by the statute interest of the place of contract. Indeed, it is not mere interest, in the ordinary legal use of the word. It is called, in the civil law, periculi pretium. The lender must take the hazard of the voyage upon himself; and his contingent compensation for so doing is in such sum as may be agreed upon. It has been said that the lender may receive any interest, however seemingly exorbitant. But it has Greeley v. Waterhouse, 1 App. 9, 2 Jennings v. Ins. Co. of Pa., 4 Binn. 244; The Mary, Paine R. 671; Rucker. Conyngham, 2 Pet. Ad. 295; Thorndike v. Stone, 11 Pick. 187. 32 Bl. Com. 457. |