In England, it is held that a British part-owner of a foreign ship, cannot arrest the vessel for the purpose of obtaining bail to be given for her safe return to her home port. Dr. Lushington, however, intimated that if a dissenting part-owner had such a remedy, by the law of the country to which the vessel belonged, he would take the matter into consideration.1

The fact that a part-owner has not complied with the acts of Congress, in delivering up the old license and obtaining a new one on becoming an owner, does not prevent his applying to the court for security for the safety of the vessel on a voyage not approved by him, such omission not being for purposes of fraud or concealment.2

Of the power of the court of admiralty to decree a sale on a question between part-owners, we shall speak when we consider the subject of Sale by order of Admiralty. A decree of a court of admiralty, awarding possession to a person, does not have the effect of a sale, and pass the vessel free from all prior incumbrances.4

We have already considered at some length 5 the right of the had taken a stipulation for her safe return, after the voyage had ended prosperously applied to the court to recover compensation for the use of the libellant's part of the vessel, and the value of his part of such of the outfits remaining from the preceding voyage, which had been used on the voyage in question. The libellant argued that the law which authorized another person to use his property ought to require payment to be made for that use; but the court held that the libellant was not entitled to recover for the use of his part of the vessel, and that a court of admiralty had no jurisdiction over a claim for the use of the outfits. Lowell, J., said: "It would be more strictly accurate to say, that the law allowed the respondents to use their own property, or to dictate the use of the common property. The libellant's property happened to be, from its own nature, inseparable from theirs; but it may have been as great a hardship for them to be obliged to use it, involving, as such use must, an outlay and risk beyond their proper proportion, as it was for the libellant to have the vessel go upon a voyage which he did not approve. In the average of cases it is equally probable that the majority would be embarrassed by the necessity of equipping and providing the whole vessel, as that the minority would be embarrassed by the necessity of providing for their part."

1 The Graff Arthur Bernstorff, 2 Spinks. Adm. 30.

2 Fox v. The Lodemia, Crabbe, 271.

3 See post, c. x.

The Granite State, 1 Sprague, 277.

See ante, Vol. I. p. 95, n. 2. In Richardson v. Mellish, 3 Bing. 229, an action was brought to recover damages for the breach of an agreement. The facts were

majority to dispossess a master who is a part-owner, and refer to what we have there said. It has been held in England, that if the owner of the greater part of the vessel brings a cause of possession against the master, who is owner of the remaining part, the master will not be allowed to retain possession upon an offer of security to the amount of his co-owner's interest.1

Under the English statute of 1854, which gives the court of admiralty power to remove the master of a vessel, if the court is satisfied that the removal is necessary, it has been held that the removal is necessary if the master has committed a fraudulent as follows. The plaintiff was in command of a vessel then under charter to the East India Company, of which the defendant was owner of twelve sixteenths. The defendant proposed to the plaintiff, and the plaintiff assented, to resign the command in favor of the defendant's nephew upon receiving in exchange the command of another ship, owned by the defendant, and then chartered for one voyage. If the company acceded to the exchange, it was agreed that in case the nephew died or resigned before the expiration of the four voyages for which the ship was chartered, the plaintiff should succeed him. As a further inducement to the plaintiff to resign the command, the defendant undertook to procure a beneficial alteration in the destination of the second vessel. The exchange was approved by the company, and was made. The plaintiff became bankrupt on his return from his first voyage, and the nephew died in the course of his second voyage. The defendant, having refused to appoint the plaintiff to succeed the nephew, was sued. After a verdict for the plaintiff, the court held, on motion for a new trial, that after verdict there was a sufficient consideration for the defendant's agreement; that the agreement was not illegal; and that the jury might give damages for the loss of the two remaining voyages, though the second had not been accomplished at the time of the action. Best, C. J., said that there was no fraud as against the East India Company, for they were apprised of the whole transaction, and in respect to fraud on the co-owners, he said: "It appears on the record that Mr. Mellish is sole owner, and therefore he could commit no fraud on co-owners. . . . Is there any fraud in the proceeding? Sift it from the top to the bottom, and what does it amount to? Nothing more than this: that a man who has the sole interest in one ship, and is about to procure an interest in another, makes a bargain with the captain of the ship to exchange it for another. Is there any fraud in that? I say, no. I am aware of the difference between a legal and a moral fraud. I see no legal fraud. I see nothing in public policy against this sort of exchange being effected. It appears to me there would be nothing corrupt - nothing improper in it; if not, there is nothing to 'arrest the judgment on the ground of illegality." This language is somewhat ambiguous, as the defendant was not the sole owner in both vessels, and the case seems to go to the extent that such a transaction is not a fraud as against co-owners. See also the remarks of the court on the case of Card v. Hope, 2 B. & C. 661. 1 The Kent, Lush. Adm. 495.

....

breach of trust against the owners, such as making a payment of £5 on ship's account, and charging a larger sum as paid, and the court has the power to make this removal on the application of one part-owner, though another who is ship's husband objects.1

SECTION II.

OF CONTRACTS OF AFFREIGHTMENT.

Whether goods are carried in a vessel on freight or by charter, the same rules of law are applicable in admiralty, unless the charterer hires the vessel wholly, and mans, equips, and sails her himself. In this case he is his own carrier, and the owner of the vessel has no lien on the cargo for the money due from the hirer, but the charterer himself, being quasi owner, has a lien on the goods of other persons, if he carries them in a ship he has thus hired.2

The first question we shall consider is, as to the jurisdiction of admiralty over questions of freight; then the application of the rules of law to these questions in civil cases; then cases which arise under prize and capture.

In treating of the law of shipping, it was stated that the shipowner has a lien on the cargo for the freight due in carrying it. This is the rule at common law as well as in admiralty, but the latter court, by its suits and processes in rem, has a more prompt and effectual jurisdiction in all cases of lien. Originally, the admiralty courts acted principally and possibly altogether in personam, and even now it is admitted that its action in rem is subor

The Royalist, Brow. & L. Adm. 46. The part-owner making the application was owner of one half the vessel. The master was owner of one quarter, and the ship's husband was owner of the other quarter.

2 The two kinds of charter-parties are spoken of in our chapter on the law of shipping. See ante, Vol. I. p. 278.

3 In The Sch. Boston, 1 Sumner, 328, 341, it is said: "The proceeding need not indeed be in rem, for if the thing has come to the possession or use or benefit of the owner, a compensation may be equally decreed upon a libel in personam. So is the doctrine in The Hope and The Trelawney, and it is founded in the very nature of the admiralty jurisdiction, which primarily acted in personam; and now acts in rem, only as auxiliary to its general authority." In The Hope, 3 Rob. Adm. 215, the objection to calling the owners to answer personally in a suit for

dinate and auxiliary to its general authority, or its action in personam. Nevertheless, it is quite certain that our admiralty courts claim and hold complete jurisdiction in rem as well as in personam over all maritime contracts in which there is any lien, either by force of law, or by an express pledge of the property by way of security.1 Nor is an actual possession by the officers of the court, of the property libelled, essential to the exercise of this jurisdiction; for the court may order the property into the custody of the law, and will for the purposes of justice, presume it to be in that custody unless the contrary appears.2

salvage was overruled. In The Trelawney, 3 Rob. Adm. 216, note, it was said in the argument: "The old practice has always been, in the first instance, against the person; and several of the first chapters of Clerke's Practice, direct the proceedings to be against the person." The court said: "As the objection has been pressed, I shall reserve this matter for further consideration; at present, it may be sufficient to say that the court will be extremely unwilling to hold that because a salvor has chosen to proceed in the manner most favorable and most accommodating to the other party, he shall be deprived of substantial redress in this court."

In The Meg Merrilies, 3 Hagg. Adm. 346, a monition in personam, was decreed in a suit for salvage. In The Brig Draco, 2 Sumner, 157, 180, Story, J., said: "My own opinion has been long unequivocally expressed, that the admiralty has a rightful jurisdiction over all maritime contracts in personam; but that, in cases of that sort, it cannot proceed in rem, unless there be a maritime lien, or a positive pledge as security."

1 1 In Sheppard v. Taylor, 5 Pet. 675, it is said, p. 711: "Over the subject of seamen's wages, the admiralty has an undoubted jurisdiction in rem as well as in personam." See also The Centurion, Ware, 477.

* In The Sch. Boliana, 1 Gallis. 75, the court said: "Further; in the admiralty, in all proceedings in rem, the court has a right to order the thing to be taken into the custody of the law, and it is presumed to be in the custody of the law, unless the contrary appears; and when once a vessel is libelled, she is considered as in the custody of the law and at the disposal of the court, and monitions may be issued to persons having the actual custody, to obey the injunctions of the court. The jurisdiction of the admiralty, however, is not founded on that circumstance." (We suppose this means the circumstance of possession.) "It is notorious, that a condemnation may take place in a prize cause, even when the prize is lying within the port of an ally or a neutral, and this right of jurisdiction and condemnation equally applies to municipal seizures, in the name of the sovereign, while the property is in a neutral port. If, indeed, the possession of the sovereign be lost by recapture, or escape, or voluntary discharge, the courts may thereby lose the jurisdiction acquired by the seizure, but such loss is not to be presumed. On the instance side of the admiralty, its jurisdiction is not, in general, founded on possession of the thing. It may exercise

That the ship has a lien on the cargo for the freight, is an ancient and a universal rule. And the application of the law of lien to cases of freight, by the rules of admiralty, is, we think, or at least should be, more liberal and less technical than by those of common law. But while this lien of the ship upon the cargo for its freight has never been denied, there is a great and irreconcilable diversity of opinion as to the origin, the nature, and the principles of this lien. The common-law courts of England have been always disposed to regard it as a mere common-law lien. This we should expect; and the inevitable consequence has been a strong disposition, perhaps a prevailing tendency, in our own common-law courts, to follow the English example. But this has led to some difficulties; and some judges refer it rather to the peculiar principles of the law merchant. These differences are not technical merely or theoretical. They certainly may lead to important results, as they have led to difficult questions. But these questions are due, we apprehend, in some degree at least, to the antagonism between the common law and the Roman civil law.

There may be difficulties in regarding the claim of the ship upon the cargo as precisely a "privilegium" of the civil law, and as we have already said in our first volume, we do not call it a privilegium. It certainly, however, was an essential part of the law merchant before that became a part of the common law of England. And then, and now on the continent of Europe, it was and is distinctly recognized, although the common-law lien is nearly unknown. A privilegium, which is well enough translated by the phrase," a privileged claim," differs from a lien in this it does not depend in any degree upon possession; that is, it does not require that the creditor should ever have possession of the thing to which he may look for security; nor if he has such possession and loses it, does he thereby lose his security. On the complete jurisdiction as to seamen's wages, as to marine torts, as to collisions, and perhaps as to salvage, without it, and rest entirely on the process in per

sonam."

In the case of Jennings v. Carson, 4 Cranch, 2, Marshall, C. J., fully discussed the principle that the vessel when once libelled is in the possession and under the control of the court. After showing that this power is inherent in the courts, and not conferred by statute (as had been contended in argument), he shows that it necessarily results from the constitution and character of a court of admiralty. 1 See ante, Vol. I. p. 176, n.