STATISTICS OF BUSINESS IN UNITED STATES. 427

marine service rests. By the U. S. Act of June 19, 1813, Congress prescribed the relations which were to subsist between the skipper, fishermen, and owners of vessels engaged in the cod-fishery, requiring the use of shipping articles, which prescribe the mode, time, and amount of compensation.

By the U. S. Act of April 4, 1840, § 4, Congress provided that whale ships should thereafter be subject to the same restrictions and entitled to the same privileges and immunities, as vessels engaged in the cod and other fisheries.

Authentic statistics show that the whale-fishery was, commercially, one of the great material interests of the United States. By a statement made by a member of Congress from the New Bedford District and published in the American Almanac for 1845, it appeared that the fleet of whaling ships was unprecedented in the history of commerce, outnumbering the ships so employed by all other nations combined.

It was there stated, that the number of vessels engaged in the United States was, altogether, 650; their measurement 200,000 tons; their cost at the time of sailing $20,000,000; requiring in officers and men 17,500 persons to man them.

The value of the oil and bone imported was $7,000,000. Certain places in 1843, were largely concerned in this shipping interest; for instance,

New Bedford had 57 vessels.

428

RIGHTS AND REMEDIES OF CO-OWNERS.

CHAPTER XIX.

POSSESSION AND RESTRAINT.

THE quaint old maxim that "ships are made to plough the ocean and not lie or rot by the wall" is still measurably true and sensible. And where there happens to be a number of owners of one ship, the rule that the majority shall control still prevails.

But a single owner of a ship has the undoubted legal title, and right of possession, as well as the unqualified control and management of his own ship. He may rightfully employ her as he chooses, or let her lie idle and rot at the wharf; send her to sea, or keep her in the harbor; and it is not pertinent for others to intermeddle, as all loss, if any, would fall upon himself

alone.

If, however, there be several owners of the same ship, each part-owner would desire to have his portion thereof profitably employed, as non-employment would entail a loss, which no prudent owner would voluntarily incur. Therefore it is, that certain rules exist by which the interests and rights of part-owners may be legally upheld and regulated.

The general rule is, that the control and possession of a ship is lawfully vested in the majority of the owners; nevertheless, the minority are not entirely divested of all right. The general rule may be qualified or con

trolled in part. Should the majority undertake to exercise their right of possession, by sending the vessel upon an objectionable expedition, which does not command the concurrence or commend itself to the approbation of the minority, the dissenting owners are not left totally remediless. There yet remains to them the right to arrest; and, if the objecting minority seasonably apply for a warrant of arrest, and demand security for safe return, the court may detain the ship, until such demand is satisfactorily complied with. The safe return is not required to be at the particular port of outfit or departure, but it may be made at any port within the court's jurisdiction. The Margarett, 2 Hagg. 278.

In case the owners should happen to be equally divided, the moiety in possession cannot be legally dispossessed; but the dissentient moiety, not in possession, will retain the like rights and remedy as belonged to a dissenting minority. They also may arrest and detain the ship until the required security shall be given, unless by laches and delay, their conduct shall amount to what is termed crassû negligentiâ.

Accordingly, in all cases, application to the Admiralty Court, for a warrant to arrest for security, or to the Chancery Court, for an injunction to restrain from sail

g, should be made seasonably and without unreasonable delay; otherwise the proceeding may be deemed vexatious, and the application for arrest or detention. be refused. Christie v. Craig, 2 Mer. 137.

Prior to 1841, there were occasional applications to the Court of Chancery for injunctions to restrain the sailing of ships, until the requisite security for safe return, demanded by objecting part-owners, should be given. But, at present, this limited practice probably

430 CAUSE FOR POSSESSION

CAUSE FOR RESTRAINT.

no longer prevails; for by the act 3 & 4 Vict. ch. 65, § 4, jurisdiction was conferred upon the Admiralty Court, fully to decide questions of title to or ownership of either the ship itself or its proceeds, in causes of possession.

A cause for possession is instituted by a majority of the owners to eject the minority from possession; a cause for restraint, on the other hand, is instituted by a minority of the owners to prevent the majority in interest from sending the ship on a voyage, deemed objectionable, and to restrain the ship from proceeding on such voyage, until the minority have obtained satisfactory security to the estimated value of their portion of the ship.

A self-willed master, who may also be a part-owner, having possession as ship's husband or managing owner, may, from his position and relation to the ship, make much trouble for the majority in interest, and seriously expose their property to danger or deterioration. In this predicament, the proper remedy and, it may be added, only legal resort is to the process known as a cause of possession. The Apollo (1 Hagg. 307), was a case of this description: reversing, however, the parties in the suit. The captain was Charles Bryan Tarbutt, owner of three eighths of the ship Apollo; the other owners were William Tennant and John Nesbit, owners of the other five eighths of the ship. Tarbutt was master of the ship on several former voyages to the East Indies; but he and his immediate successor were deposed; and a third captain was in command, when the ship was lost. Tarbutt seasonably applied for, and obtained security for £3,000 from the court. After the loss, at his instance, a monition was issued against his co-owners and their sureties, to pay that sum into the registry for his

use. The amount of bail was brought in, subject to the order of the court; and an appearance was thereupon entered for the remaining owners. Between the parties there obviously existed deep feeling and animosity, and much irritation and mutual recrimination was the consequence. The ablest of counsel were employed, the case was fully argued, and, after careful consideration, the court pronounced for the enforcement of the monition, and the "immediate payment of money which had been so long and improperly withheld."

But Lord Stowell, though awarding "costs as generally due" to Captain Tarbutt, yet did so with this discrimination, that it would be "subject to the exception of any costs incurred for matter unnecessarily introduced by himself;" adding, "I think if Mr. Tarbutt chooses to lead up an irregular dance, he cannot expect to be paid for the steps he chooses to take in it." This case was decided in 1824; and is replete with valuable dicta and doctrines, elucidating this subject. If not the principal and prominent case, it certainly is one of the few leading authorities upon possession and restraint of ships among owners.

Another case of an earlier date (1820), was the Frances of Leith (2 Dods. 420), in which the owners of three fourths interest brought a suit for possession, not to get it, for they were already in possession. It turned out, however, that the suit was instituted alio intuitu; to wit, to get possession of the ship's registry, which was in the hands of a London merchant, but the court declined to interfere.

A third case, the Margarett (2 Hagg. 275), occurred in 1829. Security for safe return had been given by bond; but the vessel, on her return to England, was