§ 207. The Subject continued; Right to dispose of Vessel. No part-owner can sell more than his own interest in the ship, unless specially authorized to act as agent for another part-owner. But, if the owners of a ship or vessel choose to make themselves partners therein, their powers and duties will be determined by the rules of partnership; in which case one partner may sell or mortgage the entire interest of the firm in the property, and exercise the jus disponendi after the usual manner of partners.2 And yet, as a partner cannot introduce a new person into the firm without the assent of his copartners, he stands at a disadvantage when compared with the part-owner; for the latter may transfer his own undivided interest in the ship so as to give to the transferee all the rights and powers which he possessed, together with his share in the property.3

While a part-owner, on the principle of a tenancy or ownership in common of chattels, can sell only his own undivided interest, those of his co-owners whose shares he has sold may subsequently ratify the sale, in which case it becomes in effect their own sale, since the doctrines of agency would thus apply. But the rule appears to be (although there is some doubt as to what will authorize one owner in common to sue his co-owner) that if a part-owner sells the whole vessel as his own, the sale, when carried into effect, is such a constructive destruction of the property of the other owners as to amount to conversion, and so enable them to maintain trover against him, or against the purchaser who sells the ship again as his own.5 This action of trover would not lie against a part-owner for merely dispossessing his co-owner. Nor can one part-owner maintain replevin against another; nor perhaps sue in trespass for the sale of the whole. In

1 Ib.; Henshaw v. Clark, 2 Root, 103; 3 Kent Com. 140, 153; Story Partn. § 417. As to the effect of a sale by a master and part-owner, see § 214, post; 11 Phila. 273,

2 Patch v. Wheatland, 8 Allen, 102; Milton v. Mosher, Met. 244. 8 See Oviatt v. Sage, 7 Conn. 95. 4 Putnam v. Wise, 1 Hill, 234.

5 Weld v. Oliver, 21 Pick. 559; Hyde v. Stone, 7 Wend. 354; White v. Osborn, 21 Wend. 72; Farrar v. Beswick, 1 M. & W. 682.

6 Hyde v. Stone, 9 Cow. 230; Hurd v. Darling, 14 Vt. 214.

7 Barnes v. Bartlett, 15 Pick. 71; Furlong v. Bartlett, 21 Pick. 401. See 1 Pars. Shipping, 93, 94.

all these respects, the usual rules of a common ownership of chattels apply.

§ 208. The Same Subject; Employment of the Ship or Vessel. When we come to the employment of the ship or vessel to the enterprises in which it engages, we find an enlargement of the mutual rights and duties of co-owners; for those who own the ship as part-owners, and load and send it out on an adventure in the cost and profit and control of which they are to share, are quasi partners as to this particular voyage and adventure.1 The common law of England provides amply for an emergency, by allowing the majority in value of the ship to employ it at their pleasure, "upon any probable design," while taking care to secure the interest of the dissenting minority from being lost in an employment of which they disapprove. Where a dispute arises, the court of admiralty will, on application of the dissenting owners, take a stipulation from the majority for the safe return of the vessel; and the dissenting owners, in such a case, bear no part of the expenses of the outfit and take no share in the profits of the enterprise, but the ship sails wholly at the risk and for the profit of the others.2 If legal proceedings for this purpose have not been seasonably taken before the voyage has commenced, the dissenting owners should expressly notify the others interested of their dissent, and carry the principle of this remedy as far as possible and with all expedition; for it has been decided that one part-owner cannot sue a co-owner at law for fraudulently and deceitfully sending the vessel to foreign parts, whereby she was lost; nor in equity for the loss of the ship sent without his consent.3 If a part-owner expressly notify his dissent, chancery will not compel him to contribute to a loss. And though in a case of equal ownership, a court of admiralty may be reluctant to interfere, yet where the equal owners differ in the ship's management, the

1 Doddington v. Hallett, 1 Ves. Sen. 497; 1 Pars. Shipping, 91.

2 The Apollo, 1 Hagg. 311; Abb. Shipping, 100 et seq.; Bright. Fed. Dig. 783; The Orleans v. Phoebus, 11 Pet. 175.

81 Lev. 29; Strelly v. Winson, 1 Vern. 297; Skinn. 230. See Horn v. Gilpin, Ambl. 255.

4 Horn v. Gilpin, supra.

court will direct what shall be done.1 But a part-owner cannot allow repairs of permanent value to be made to a ship, and then, arresting the ship, avoid payment of his proportion of the expense on the plea that he dissents from the proposed employment.2 On the other hand, while it is said that the control of the majority of a ship extends to putting on board or removing officers or masters at pleasure, it is by no means clear that this majority could remove a master who was likewise a part-owner; though, if dispossessed, the master could only sue for damages, the amount of which might greatly depend upon the justification for his removal.3

Where the other part-owners are absent, and no prohibition on their part has been interposed, it may fairly be presumed that the part-owner present can represent them in the supply or management of the vessel and bind them accordingly; though this privilege would not be carried, probably, to the extent of binding absent owners by acts unnecessary, unreasonable, and plainly injurious to their interests.*

§ 209. Adjustment of Controversies; Lien on each other's Shares, etc. Whether the court of admiralty has power to compel an obstinate part-owner to sell his interest is not settled by the authorities. The rule of the maritime law in Continental Europe is that a sale may be judicially ordered, as a summary method of bringing quarrels to an end over the ship's employment; and Judge Story and others contend for the lawful exercise by our courts of the same power.5 Yet some cases deny that any such authority exists.

1 See Bright. Fed. Dig. 783; The Ocean, 1 Spr. 535.

2 Davis v. Johnston, 4 Sim. 539. See Pars. Shipping, 95-97; The New Draper, 4 Rob. Adm. 287; Montgomery v. Wharton, 1 Dall. 49. Rule changed by recent Act of Congress, April 9, 1872, c. 90.

41 Pars. Shipping, 97, criticising Abb. Shipping, 105; Stedman v. Feidler, 20 N. Y. 437; Brodie v. Howard, 17 C. B. 109. The law of agency has its own familiar limitations as to the scope of employment in which one

may be said to represent another. See Bowen v. Peters, 71 Me. 463. For the English doctrine see Frazer v. Cuthbertson, 6 Q. B. D. 93.

53 Kent Com. 153, 154; Willings v. Blight, 2 Pet. Adm. 288; Story Partn. § 438; 2 Pars. Shipping, 343. The admiralty jurisdiction of the United States courts has been recently enlarged. Where interests are equal and the conflict decided, it seems that a sale may be ordered. 10 Ben. 110; 7 Sawyer, 360.

Ouston v. Hebden, 1 Wils. 101;

By the technical rule of the common law, part-owners are not liable to each other for negligence whereby the common property is lost or injured; for the reason that each co-tenant may and ought to protect himself. But admiralty might fairly refuse to accept so narrow a doctrine.1

Much controversy has arisen over the question whether part-owners have, under some circumstances, a lien on each other's share of a ship, as partners in trade would have in the common merchandise. The result of the decisions would seem to be that no such lien exists where the ship belongs to persons as part-owners strictly, and not as partners. Yet if an adventure be undertaken by mutual consent, and one of the part-owners become a bankrupt after the commencement of the voyage, not having paid his full share of the outfit, the other partners have a right to deduct from his share of the profit whatever remains charged to him on account of the outfit, and pay over the balance only to the assignees.3 It is when we attempt to extend this right of deduction to a further or general indebtedness, that we are beset with doubts; for not only may persons own a ship as partners rather than part-owners, but they may be part-owners of the ship and partners in the particular adventure; or, if the enterprise be to sell vessel and cargo abroad, instead of freighting and chartering the vessel to carry a cargo and return, it might be said that the part-owners had made themselves partners in both ship and cargo, the total proceeds comprising the fruits of the voyage. It must be admitted that the cases are quite conflicting as to the gen

Davis v. Brig Seneca, Gilp. 10. See Abb. Shipping, 104; 5 Dillon, 159. It is preferable, where justice permits of the arrangement, and interests are unequal, that the majority owners who desire to use the vessel be required to give security to the dissenting owners, rather than that a sale be ordered. 5 Dillon, 159; 7 Sawyer, 360.

1 See 1 Pars. Shipping, 107.

21 Pars. Shipping, 107, 108, and n.; The Larch, 2 Curt. C. C. 427; Ex parte Young, 2 Ves. & B. 242; Merrill v. Bartlett, 6 Pick. 46.

3 Holderness v. Shackels, 8 B. & C. 612; Abb. Shipping, 108; 1 Pars. Shipping, 107.

4 See Mumford v. Nicoll, 20 Johns. 611; Cowp. 469; Hewitt v. Sturdevant, 4 B. Monr. 458; Doddington v. Hallett, 1 Ves. Sen. 497; Abb. Shipping, n. by Perkins, 111.

eral liens of part-owners, while there are doubtless instances in which, if a part-owner obtained the proceeds after making advances for the voyage, it would be unjust to make him pay over without allowing him to keep enough in his hands for his proper reimbursement.1

If a ship be owned by partners, no one, on the principles. of partnership, can make a claim upon the others for the expenses he has properly incurred, except by having the partnership accounts completely made up and adjusted. But where all are part-owners, he may sue each of the others for his share of the expense, provided only the repairs were made or the outlay incurred with the express or implied consent of his co-owner.2 For a full adjustment of accounts the custom has been for part-owners to bring a bill in equity, just as members of a partnership would do; and in England courts of admiralty may now take jurisdiction for the same purpose; yet as legislation is necessary to give admiralty courts power over matters of account between part-owners, those of the United States have no such jurisdiction.

§ 210. Miscellaneous Points as to Rights of Part-Owners inter Se. Since, as we have seen, one part-owner, as such, has no power over the shares of the other part-owners, it follows that he can no more mortgage or pledge the whole ship than sell it outright. He cannot even insure the interests of his co-owners except as their authorized agent.5 And, in fine, part-owners are held to honesty and fairness in their mutual dealings; and if one attempts to obtain advantages to himself by violating the rights of the others, and seeks to exercise undue control over the common interests, he will find that justice "beareth not the sword in vain."6

1 See 1 Pars. Shipping, 115; Story Partn. §§ 441, 443; Bright. Fed. Dig. 783.

2 Pars. Partn. 553-555, and cases cited; Patterson v. Chalmers, 7 B. Monr. 595; Sawyer v. Freeman, 35 Me. 542; Gowan v. Foster, 3 B. & Ad. 507.

3 Moffat v. Farquharson, 2 Br. C. C. 338; 1 Pars. Shipping, 116; The Apollo, 1 Hagg. Adm. 306; 24 Vict.

c. 10, § 8; Ward v. Thompson, 22 How. 330. State jurisdiction in equity of such matters of account has been asserted. 12 Phila. 392.

4 Pars. Partn. 556; supra, § 207. 5 Abb. Shipping, 107; Hooper v. Lusby, 4 Campb. 66; Peoria, &c. Ins. Co. v. Hall, 12 Mich. 202.

See Card v. Hope, 2 B. & C. 661; 1 Pars. Shipping, 124.