credit.1 Nelson.2

This case was affirmed on appeal, by Mr. Justice

1 Ross v. Steamboat Neversink, U. S. D. C. New York, 1866. The vessel belonged to New York and the supplies were furnished at New Brunswick, in the State of New Jersey. Shipman, J., said: “Now it appears from the proofs that the master had no funds of the general owner, and therefore could apply none to the purchase of this coal. An effort was made on the trial to prove that White, the general owner, was well known in New Brunswick, where the coal was purchased, to be a man of property, and that he had a credit there to which the master might have resorted. This attempt failed, for only one person there is proved to have known him. But if he was ever so well known there, and had undoubted credit in that market, it is difficult to see how this fact could tend to prove that no necessity existed for the master to resort to the credit of the boat; for he, being charterer, could not have bound the owner personally, and, therefore, the credit of the owner would have been of no avail to the master. This would have certainly been the case had the general owner been known to the libellants, and with reasonable diligence they could have ascertained that Thornal and Hine were special owners. The master would then not have been apparently the agent of the general owner, and therefore could not have made a valid contract on his behalf, or one by which he would have been bound. It appears that, at the time of the purchase of this coal, Thornal had in his hands, arising out of the current earnings of the boat, three or four hundred dollars, but he at the same time had other and pressing demands arising out of the necessary and daily wants of the boat. The crew were to be paid, and a multitude of items which go to make up the running expenses of such a boat to be attended to. This small amount was no more than a prudent man engaged in such an enterprise ought to have kept on hand from day to day. The only other evidence touching the pecuniary ability of the master simply shows that he was engaged in a heavy speculation in oats, and had twelve or fourteen thousand dollars invested in it, carrying, as he says, a large quantity on a margin. This speculation was not in New Brunswick where this coal was purchased, but in New York or Brooklyn. These oats or the speculative contract relating to them, were not available funds in the hands of the master, such as the maritime law regards as sufficient to take away his authority to resort to the credit of his vessel. Whether he could have disposed of his interest in this speculation in the then state of the market, and had a dollar left, does not appear. The conclusion on the whole case is that he bound the boat in this contract with the libellants."

* Ross v. Steamboat Neversink, U. S. C. C. New York, Nov. 1867. Nelson, J., said: "The main ground of controversy is whether or not there is sufficient evidence of an apparent necessity existing at the time within the rule of the maritime law." After referring to Pratt v. Reed, and the rule there laid down, the learned judge said: "Applying it to the case in hand we are satisfied that the proofs show an apparent necessity for the credit in question. The master had no funds to meet the payment for the coal as delivered; and the owners and the charterers were not present, but resided at a distance, and, in the sense of the

The fact that the Supreme Court of the United States has, since the decision in Pratt v. Reed, re-enacted the twelfth admiralty rule, does not show an intention on the part of the court to change

maritime law, in a foreign jurisdiction. The master was one of the charterers, but this does not affect his authority as master. He had no means either as master or owner, which makes the apparent necessity for the credit to the vessel the stronger. I lay out of view the general owner, because the master was not his agent, and could bind him by no act of his; he could only bind the vessel and the charterers. As to the sufficiency of the proofs of this apparent necessity, no fixed rule, from the great diversity of the cases that arise, can be laid down in advance. It must necessarily rest in the sound judgment of the tribunal before which the proofs are presented. Good faith and fair dealing are expected on the part of the person furnishing these supplies in every case, and the absent owner should be guarded against collusion of the master with the material man, or furnisher of supplies, and against an unnecessary tacit incumbrance upon his vessel.” In The Steamboat James Guy, U. S. C. C. New York, Sept. 1867, the vessel was owned in New York, and was repaired in Baltimore. The owners claimed that the repairs were not furnished on the credit of the vessel, and that there was no necessity for giving credit to the boat, as the owners were in good credit at the time. Nelson, J.: "The main question in this case is whether the steamboat is subject to a lien for the bill of repairs put upon her by the libellants, and that turns upon the point whether the credit was given to the vessel or to the owner, and after a very full examination of the evidence, I am satisfied that it was the intention of both parties that the payment was to be made when the repairs were finished, and that in the mean time the mechanic or workman looked to the vessel as security. It is needless to go over the proofs in support of this conclusion. All the facts and circumstances attending and surrounding the case tend in this direction. It is supposed by the counsel for the respondents that the case of Pratt v. Reed, 19 How. 359, has an important bearing in this case adversely to the lien. We do not so understand it. The necessity for repairs or lien upon the vessel to enable the master to procure them, are insisted upon there as essential elements to support the lien, and in respect to the soundness of which there can be no controversy; but the necessity in both instances (for repairs and lien) must depend upon the facts and circumstances of the case. In Pratt v. Reed they repelled the necessity of the lien. In the present case we hold they support it." In the same case before the district court, The James Guy, 1 Bened. Adm. 112, the objection was taken that it had not been made to appear that the owner was without credit in Baltimore. Benedict, J., said: "Now, with the most sincere desire to give to this (Pratt v. Reed) and all other decisions of the appellate court their full force and effect as the authoritative guides of the court below, I find it difficult to consider the case of Pratt v. Reed as deciding more than this: that when the circumstances of the case are such as to raise a presumption that there was no necessity for an implied hypothecation, it then becomes incumbent on the libellant to show a necessity for a credit." And Benedict, J., held that it was sufficient to show that the owner was insolvent, without showing that he had no credit in Baltimore.

the rule laid down in Pratt v. Reed. The rule does not give a right to sue in all cases of supplies furnished a foreign ship, but only regulates the remedy in cases where the right exists.1

In a case in Massachusetts, a chain and anchor were furnished a vessel by another at the Chincha Islands. The credit of the owner of the vessel supplied was not good in Boston, where he lived, at the time the chain and anchor were furnished, and had not been for two years before that time. There were no mercantile houses or persons resident at the Chincha Islands whose business or practice it was to lend money or furnish supplies to owners of vessels. The master drew upon the owner twice during the voyage, once at Callao and once at the Chinchas, and sold the drafts at a premium, but it did not appear that credit was given or the drafts taken without a lien upon the vessel. The owner testified that he got credit after these articles were furnished, but it appeared that it was only for premiums of insurance. It was held that it was sufficiently proved that these necessary supplies could not have been obtained upon the personal credit of the owner, and that a lien therefore attached to the vessel.2

The lien of a material man takes precedence of the claims of other creditors.3 And if the vessel is wrecked, and portions of the wreck are saved by the owners, the lien attaches to what is saved, and will be paid after the claims of the seamen are satisfied.* This lien is lost by the capture of the vessel jure belli.5

1 Taff v. The Brig Eledona, U. S. D. C. New York, 1867, Blatchford, J. The Sea Lark, 1 Sprague, 571.

The Granite State, 1 Sprague, 277; The Sea Lark, 1 Sprague, 571. Bruce v. The Tackle, etc. of the Steamboat America, 1 Newb. Adm. 195. The Battle, 6 Wallace, 498.

CHAPTER X.

OF SALE BY ORDER OF ADMIRALTY.

THIS Occurs principally in cases of bottomry and of salvage, when the court always decree a sale, if necessary, to satisfy the claims which they sustain. Doubtless the same decree would be made in any suit in rem against the ship, where the same necessity arose; as for wages or repairs. Wherever a sale is decreed, the court give such orders, and take such precautions, as may seem necessary and proper to protect the interests of all parties; and such a sale, it would seem, conveys the property free from all prior incumbrances.1 And it has been held that a sale by the master, through necessity, has this effect.2 But where the process is in personam, and goods are attached which are afterwards sold, such sale passes only the property of the respondent.3

In judicial sales, there is no warranty either express or implied; and the proceeds when brought into court are not liable in rem to make good a loss sustained by the purchaser in consequence of a defect being discovered in the article sold.4

In all cases where any goods or other things are arrested, if the same are perishable, or are liable to deterioration, decay, or injury, by being detained in custody, pending the suit, the court may, upon the application of either party, in its discretion, order the same, or so much thereof to be sold as shall be perishable or liable to depreciation, decay, or injury, and the proceeds, or so much thereof as shall be a full security, to be brought into court to abide the event of the suit.5 And if the claimant of a vessel does not apply for her release to him on appraisement or stipulation,

1 See The Steamboat Hendrik Hudson, U. S. D. C. Northern District of New York, 17 Law Rep. 93; The Granite State, 1 Sprague, 277, per Sprague, J.; The Tremont, 1 W. Rob. 163; Attorney-General v. Norstedt, 3 Price, 97; The Helena, 4 Rob. Adm. 3.

The Amelie, 6 Wallace, 18.

8 Boyd v. Urquhart, 1 Sprague, 423.

The Monte Allegre, 9 Wheat. 616. 10th Admiralty Rule.

the court may in its discretion, on application of either party, upon due cause shown, order a sale of said vessel.1

In some of our States there are statutes regulating sales of wrecked ships, and wreck commissioners appointed under them. A sale made under these statutes, and in conformity with their provisions, in good faith, gives a title which is sustained in admiralty. Even if fraudulent, it may give good title as against the owner, to an innocent purchaser, for value, who has neither knowledge nor notice, actual or constructive, of the fraud, nor of any circumstances which would defeat his title. We should not hold that a sale in a proceeding in rem under a State statute which authorizes such a proceeding in the case of an ordinary debt, would have the effect of a sale by an admiralty court. But it

1 11th Admiralty Rule. See also The Nathaniel Hooper, 3 Sumner, 542, 562; The Nordstjernen, Swabey, Adm. 260. In United States v. Sch. Lion, 1 Sprague, 399, a libel of information was filed against a vessel for forfeiture. The owner did not file a claim. The vessel was sold under an order of court, upon an application made by the district attorney, on the ground that the expenses of holding her in custody were greatly disproportionate to her value, and the marshal had paid the net proceeds into court, having previously deducted one hundred and one dollars for his expenses and fees. The libel against the vessel was afterwards dismissed. Held, that the owner was entitled to the entire proceeds, the sale not being for his benefit.

* The Sch. Tilton, 5 Mason, 465; American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511. See The Bonita, Lush. Adm. 263.

The Sch. Tilton, 5 Mason, 465, per Story, J.

The Globe, U. S. D. C., Northern District of New York, 13 Law Rep. 488. The vessel, in this case, had been sold under an Ohio statute which authorized proceedings against the vessel in rem. A suit was then commenced in the United States court to enforce the lien for materials furnished the vessel in the port of a State other than her own, prior to the proceedings in the State court, and the lien was enforced. It also appeared that the State statute had no provision for giving notice to all the world, as in an admiralty proceeding in rem, and that in fact no notice was given, though the owner of the vessel appeared and contested the suit. Judge Conkling held, on this point, that such a decree, even if it had the force and effect of a decree in rem, would not be binding, no notice having been given. This decision was overruled by Mr. Justice Nelson, 15 Law Rep. 421, 2 Blatchf. C. C. 427, but the reasons given by Judge Conkling seem to us very strong. We have little hesitation in stating the law to be, that a State cannot, by changing the name or nature of the process, bind the rights of persons not parties to the suit. The decision of Mr. Justice Nelson is so severely criticised by Judge Conkling in the second edition of his treatise on Admiralty Jurisdiction, Vol. I. p. 88-102, that we do not deem it necessary to say more about it. We