The words of the statute are: "That the liability of the owner or owners. . . . shall in no case exceed the amount or value of the

It does not pertain to its jurisdiction in admiralty; certainly not in a suit in personam, where neither the faulty ship and freight, nor their amount or value, are within the control of the court. In a suit in personum, it can render no judgment that would bind parties not before it. None of these freighters are parties to this suit, and it is doubtful if this court has power to make them parties. Certainly it has no power to make parties of such as reside and remain beyond the limits of this district.

"It is hardly necessary to add that this court has no equity powers adequate to the exercise of the duty supposed to be conferred upon some court by this section of the act. Its jurisdiction depends upon the acts of Congress, and with the exception of a single subject-matter, no equity jurisdiction has ever been conferred upon it. I presume it will hardly be contended that, because Congress has authorized, in terms, appropriate proceedings to be taken in any court, it has, by implication, conferred upon every court powers adequate to the work of effectually administering this act. And if it has not, this court is without jurisdiction, without rules of practice, and without the power to make such rules adapted to accomplish the object of the statute and give effectual relief to the parties interested in the sum for which these respondents are liable, as damages for this collision.

"The conclusion is that the court has no power to grant the relief asked for on this motion, or under any form of proceeding that could be instituted. The evidence offered is therefore rejected, and the motion denied. And as it is conceded that the value of the City of Norwich and her pending freight, at the time of the collision, was much greater than the damages assessed in this case, a decree must be entered for the libellants for the sum fixed by the court on confirming the commissioner's report."

In The City of Norwich, 1 Bened. Adm. 89, which was a suit growing out of the collision mentioned in the preceding case, an action in rem was brought against the steamboat by an owner of goods shipped on the steamboat. While the vessel was in the custody of the court, the claimants filed a petition setting forth that the losses by the collision and fire exceeded the value of the vessel and freight then pending, and that there was reason to anticipate actions against her to recover amounts exceeding her value, and prayed for leave to file a stipulation in the appraised value of the vessel and freight, such stipulation to be taken for the benefit of all persons who should show themselves entitled to liens upon the vessel for losses occasioned by the collision and fire aforesaid, and that upon the filing of such stipulation the vessel be declared discharged of such liens. They further prayed that the owners of said vessel might be declared to be entitled to the benefit of the act of 1851, and be also declared, upon the filing of the stipulation aforesaid, to be discharged from all liability for any losses arising out of the accident in question. It was held that the discharge of the vessel from the liens created by law, on giving a stipulation, could not be obtained by virtue of the act of 1851; that the provisions in the fourth section, authorizing the owners to take

interest of such owner or owners respectively." The fourth section provides that "the said freighters and owners of the property and the owner or owners of the ship or vessel, or any of them, may take the appropriate proceedings," &c., and that "he or they may transfer his or their interest to a trustee." A question may arise under the fourth section whether one part-owner of a vessel can institute proceedings. The words " or any of them" may mean any of the classes mentioned. By the act of 7 Geo. II. c. 15, the limitation of liability is "the value of the ship or vessel"; and if any of the owners bring a bill in equity for an apportionment, they are obliged to bring it on behalf of themselves and the other owners, and to pay into court the value of the vessel. The language of the other English acts is similar. The Massachusetts act of 1818 and the Maine act of 1821, are taken from the act of 7 Geo. II. and their corresponding sections are almost word for word the same with that of 7 Geo. II. except this notable difference: — In 7 Geo. II. the limitation is, "the value of the ship or vessel." In the Massachusetts and Maine acts the language is, “The value of the interest which such owner or owners have or had at the time of such shipment in the ship or vessel." This language fixes clearly the time of ascertaining the value, and we think the intention is also clearly manifest to fix the amount for which each owner shall be liable to the value of his interest.

These statutes, however, provided that the whole value should be brought into court in case a bill of equity was brought, following the language of the 7 Geo. II. and making the sections inconsistent with each other. The inconsistency exists in the Revised

appropriate proceedings," does not warrant this application; that a court of admiralty could not in an action in rem against a vessel by a single freighter, make, upon a petition, a summary order declaring the owners of the vessel free from personal liability to any freighter on filing a stipulation as proposed; that the "appropriate proceedings " must be in personam, bringing the parties to be affected by it before the court; that such a proceeding would not be within the jurisdiction of an admiralty court, and that the relief sought could not be afforded under any of the provisions of the act of 1851, but that the application might be treated as one for a release of the vessel on bail; that under the circumstances, a stipulation in the form tendered would protect all the rights of the lien creditors, and as effectually relieve the vessel from all the liens provided for in it, as the ordinary stipulation does from the claims made in the particular libel; that therefore the application to bond the vessel in this way might be granted.

Statutes of Massachusetts, but does not in the Revised Statutes of Maine, from which the Act of 1851 was taken.

If there should be any limitation of the liability of ship-owners, it seems to be just that the liability of a part-owner should be limited to the value of his interest.

A different view has, however, been taken in Massachusetts, and it is held by the supreme court of that State that a part-owner is liable for the full value of the vessel.1

And it is held by the same tribunal that the value of the owner's interest, under the third section, is its value unincumbered, and that no allowance is to be made for a mortgage.2

In respect to the "freight then pending," it has been held that the earnings of the vessel in transporting the goods of the owners are to be included. And if the cargo is damaged by the unseaworthiness of the vessel, it has been held that the owner of the vessel cannot abandon his interest in the vessel, because he is presumed by law to be cognizant of such unseaworthiness, and the loss is therefore not "without his privity or knowledge." If the owner of the vessel is not owner of the freight, the freight does not contribute to the loss. 5

Section 5 provides that the charterer of a vessel, if he mans, victuals, and navigates such vessel at his own expense, or by his own procurement, shall be deemed the owner of such vessel, within the meaning of the act; and such vessel, when so chartered, shall be liable in the same manner as if navigated by the

owner.

There is no similar section in the English statutes. The early Maine and Massachusetts statutes contained like provisions, and the Maine act of 1821 also contained a provision giving the owner of the vessel a right of action against the charterer to recover the

1 Spring v.Haskell, 14 Gray. 309.

Spring v. Haskell, 14 Gray, 309. So in Barnes v. Steamship Co. cited ante, p. 133, n. 1, Grier, J., held that the owners of the vessel injured had a right to priority of payment out of the fund, without any deduction for or on account of bottomry, mortgage, pilotage, towage, seamen's wages, or other contracts of the masters or owners of the vessel doing the damage. See, however, Pope v. Nickerson, 3 Story, 465.

Allen v. Mackay, 1 Sprague, 219.

* In re Sinclair, U. S. D. C. South Carolina, 8 Am. Law Reg. 206. Walker v. Boston Ins. Co. 14 Gray, 288.

value of the vessel, in case a loss was compensated for from the freight or the proceeds of the sale of the vessel. By the Maine statutes of 1840, the right was further extended, so as to give the owner of the freight a claim against the charterer, if the freight made compensation. It has been held that if the freight is owned by a person other than the owner of the ship, the owner of the freight is not liable if he does not man, victual, and navigate the ship.1

Section 6 provides, that the act shall not affect the remedy against the master and mariners, and is taken partly from the Revised Statutes of Maine,2 and partly from the 53 Geo. III.3 Under this last-mentioned statute it has been held that if a part-owner is in command of the vessel, his negligence does not deprive the other part-owners of the benefit of the statute.4

Section 7 provides, that any person or persons shipping oil of vitriol, unslacked lime, inflammable matches, or gunpowder, in a ship or vessel taking cargo for divers persons on freight, without delivering at the time of shipment a note in writing, expressing the nature and character of such merchandise, to the master, mate, officer, or person in charge of the lading of the ship or vessel, shall forfeit to the United States one thousand dollars.

It is then provided that, "This act shall not apply to the owner or owners of any canal boat, barge, or lighter, or to any vessel of any description whatsoever, used in rivers or inland navigation."

The last part of this section follows the language of 53 Geo. III.5 It has been held that a vessel on Lake Erie, bound from Buffalo to Detroit, enrolled and licensed for the coasting trade, and engaged in navigation and commerce as a common carrier between ports and places in different States upon the lakes and navigable waters connecting the same, is not a vessel used in inland navigation.6

1 Walker v. Boston Ins. Co. 14 Gray, 288.

21840, c. 47, § 11.

Ch. 159, § 4.

Wilson v. Dickson, 2 B. & Ald. 2.

Ch. 159, § 5. This also excepted "any ship or vessel not duly registered according to law."

Moore v. American Transp. Co. 24 How. 1, 5 Mich. 368. See also Walker v. Transp. Co. 3 Wallace, 150. See, under 26 Geo. III. c. 86, Hunter v. M⭑Gown, 1 Bligh, 573.

CHAPTER XVIII.

OF MATERIAL MEN AND THEIR LIENS.

THE persons employed to repair a ship, or, in general, to do any work about her, and those who furnish for her use supplies of things necessary to her equipment and safe navigation, are known in the law of shipping as material men; they are defined in Jacobsen's Sea Laws1 as "the persons who furnish and construct the different materials of a ship"; but a somewhat broader sense is usually given to this phrase, and Lord Stowell, in one case, cited a report of Sir Leoline Jenkins, made to the king, in which that learned judge said: "Those are commonly called material men, whose trade it is to build, repair, or equip ships, or to furnish them with tackle and provision necessary in any kind."2 We propose in this chapter to consider the liens of material men so far as they exist at common law, or are given by State statutes, reserving the consideration of the lien given by the maritime law, and the enforcement of the lien given by the State laws, by a court of admiralty, for our chapters on Admiralty Jurisdiction.

In England, from the time of Charles II. until 1840, the lien of a material man was limited to the case of a shipwright or other person to whom possession of the ship had been given for the purpose of repair; he might retain his possession for his wages or charges as any other workman may any chattel (a tailor, clothing; a watchmaker, a watch), by the common law of bailment. In England it has been held that if material men, who repair a vessel, retain possession of her and claim a common-law lien for the repairs made, they cannot add to this charge the expense of keeping the vessel, since they keep her for their own benefit.

1 Page 357, note.

The Neptune, 3 Hagg. Adm. 129, 142.

But we

Ex parte Bland, 2 Rose, 91; Franklin v. Hosier, 4 B. & Ald. 341; The Vibilia, 1 W. Rob. 1, 6. But he cannot detain the vessel against the authority of the court of admiralty, when the ship is in the possession of its officer, though that court will then protect his rights. The Harmonie, 1 W. Rob. 178.

* Somes v. British Empire Shipping Co. 8 H. L. Cas. 338.