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MASTER BINDS SHIP AND OWNER.

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1st. Under the implied power of the master in a foreign port, the ship and ship-owner may be bound for the cost of necessaries procured by the master's order, under circumstances requiring their procurement.

2d. It must also appear affirmatively that the master acted in good faith throughout, that the course he pursued was prompted by an invincible necessity, and that no other feasible resort remained optional for him.

In the Brig Nestor (1 Sum. 75), supplies of materialmen to a foreign ship were deemed, prima facie, to be furnished on the credit of the ship and owner.

In the Perla (supra), a ship is presumed to be liable; and if a personal credit shall have been given, practically waiving the lien, this fact must be distinctly proved, and whenever workmen and material-men have a lien on a vessel, it may be enforced before the vessel is finished or sold. 1 Story, 244; Gilpin, 473; ibid. 536. In Whitten v. Tisdale (supra), supplies for which suit is brought against the owners, though furnished the master at a foreign port, must be proved to have been necessary. In Abbott v. Balt. & Rap. Packet Co. (1 Md. Ch. Dec. 552), the general liability of the owners for supplies furnished to the master was affirmed; and it was held, that should the owner seek to avoid such liability, he must show satisfactorily, that credit was given to others; either a personal credit to the master alone for such supplies, or that a special promise was taken from the master and relied upon, either or both of which might exempt the owner from his liability.

Certain species of repairs do not render the owners liable: thus, work done upon a vessel in a dry dock, in scraping her bottom preparatory to coppering, was not of a maritime character. So compensation therefor was

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MATERIAL-MEN ENTITLED TO PRIORITY.

not deemed to be recoverable in a court of admiralty. Bradley v. Bolles, supra. So in 6 McLean, 463, supra, it was held that a painter, if he were in the habit of painting ships for a builder, and kept a general account against him, trusted such builder, and had not, therefore, a maritime lien for painting one particular vessel. VIn marshaling preferred claims, the rule applicable to this subject is somewhat peculiar claims of mortgagees are suspended, and of bottomry bond-holders even postponed, in order to let in the presumed better claims of material-men and others for necessaries; that is, the later debt takes precedence of former debts. And it is both just and politic that when shipwrights are called upon to make repairs upon a vessel, and make such repairs, that their respective claims for labor and material furnished, should become privileged debts; giving to such shipwrights priority and preference over all others, even though the vessel may have been previously mortgaged, or otherwise pledged or hypothecated. The reason for this rule seems to be, that, by their services, the ship had become materially enhanced in value; for without such timely repairs, indeed, the vessel, while lying idle at the wharf, or at anchor in the stream, may have so decayed as to become positively worthless. Such service and repairs, therefore, may, in fact, have saved her from premature destruction, and so revived and increased the security of the former pledgers, as to render their security in a measure reliable. Independently, then, of all considerations of mere policy, it is proper, reasonable, and just, that the shipwright, though later in time, should be first in right, and enjoy legal preference and priority over other creditors. This doctrine is distinctly held in 1 Peters' Ad

LIEN ON PROCEEDS ONCE DOUBTFUL.

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miralty, 223, Gardner et al. v. Ship New Jersey; ibid. 233, Stevens v. The Sandwich.

At the time of the decision of the case of the Neptune (3 Hagg. 136), it was held that, by the civil law and law of nations, material-men were entitled to a lien, as well upon the proceeds as the ship itself; though it was held otherwise by the common law of England, which was then binding on the British Admiralty Court. Accordingly, that court denied to material-men any lien. upon an English ship in specie, for costs of materials supplied in England. But this case was subsequently reëxamined upon appeal to the Privy Council, in the Neptune (3 Knapp, 94); and by the appellate court it was

denied that material-men had any lien upon the pro

ceeds of a sale of a ship, even when such ship had been sold by order of the Admiralty Court, although the proceeds of the sale were deposited in the registry of that court. But aliter in the John, 3 Ch. Rob. 288. In this last case as well as in the Maitland (2 Hagg. 254), the Admiralty Court exercised jurisdiction, though it admitted that a clear distinction existed in cases of foreign and domestic ships. But in a subsequent case, the New Eagle (10 Jur. 623), the Admiralty Court considered itself bound by the prior decision in 3 Knapp, 94, supra. Thus, then, at this period, by the law of England, material-men had no lien on the ship itself or on the proceeds of the ship, even when sold by order of a court of admiralty. Beside, the law of England, unlike the general maritime law of Europe, made it necessary to execute a bond of hypothecation in order to give a legal lien for supplies furnished, or necessaries purchased. The Vrow Mina, 1 Dods. 235; The Alexander, ibid. 280; The Zodiac, 1 Hagg. 325; The Vibilia, 1 W. Rob. 6.

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LIEN EXPRESSLY CONFERRED IN 1861,

In this unsatisfactory and almost incongruous condition of the law in England, the British Parliament legislated farther in 1841.

By 3 & 4 Vic. ch. 60, sec. 6, jurisdiction was expressly conferred upon the High Court of Admiralty "to decide all claims for necessaries supplied to any foreign or sea-going ship, and enforce payment" thereof, whether such ship or vessel may have been within the body of a country, or upon the high seas at the time when the necessaries were furnished, in respect to which such` claim is made.

By the act of 1861, 24 Vic. ch. 10, sec. 4, the High Court of Admiralty was authorized to take cognizance over any claim for building, equipping, or repairing any ship, if at the time of the institution of the cause, the ship, or the proceeds thereof, were under arrest of the court. The 3d section of the same act conferred jurisdiction to be exercised by proceedings in rem, or by proceedings in personam. "Ship" was defined by sec. 2 of the same act, to include every description of vessel not propelled by oars. Both the acts of 1841 and 1861 have received judicial consideration and interpretation, and in the India (9 Jur. (N. S.) 418), it was determined that under neither act had the court jurisdiction "to entertain a claim for repairs done in a foreign port." And in the Ocean Queen (1 W. Rob. 441), it was determined that a vessel, built and registered in New Brunswick, was not a foreign vessel within the purview of the act of 1841. Before that act, no foreign ship could be subjected to actions in rem, under any circumstances, for necessary supplies; great inconvenience and sometimes danger, therefore, happened to ships for want of anchors, cables, or provisions. To remedy these evils, the act of 1841

THUS REVIVING THE ANCIENT LAW.

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was passed; on the one hand, to remove the pressure of want, under an invincible necessity; on the other, to give to the British merchant or broker, making advances, a remedy and security for such advances. 2 W. Rob. 371, The Ocean; Swab. 166, The Wataga; Lush. 332, The Comtesse de Frègeville.

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The reason for conferring such jurisdiction by the act of 1841, was to assimilate the English law to the general law of the maritime states of Europe, which gave a lien to persons who furnished necessaries to a vessel in port, or on the high seas, as security for payment. Spinks, 441, The Flecha. The act of 1841 simply revived the ancient law, in this respect, for necessaries supplied to a foreign ship. It was not intended to alter the law, but merely to give a new remedy, which was rendered necessary in the peculiar case of a foreign vessel, and confined to that necessity. 1 W. Rob. 360, The Alexander.

By the act of 1861, the right under the act of 1841 was not affected. Nor was it affected by the fact that since necessaries were furnished, the vessel had been sold to a British purchaser. The Ella A. Clark, supra, 8 L. T. (N. S.) 119.

With these references, this chapter on necessaries is about to be concluded. A ship-master's power to procure them is primarily derived from his appointment. When the owner puts a master in charge, he thereby constructively clothes him with such implied power. If a proper contingency arrives, the legal exercise of this power must be attended with the existence and presence at least of two prerequisites, to wit, good faith and urgent necessity. The presence, indeed, of both, are indispensable, in order to justify a master in resort

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