In the case of Gordon v. The Massachusetts | voyage, without waiting until the owners and Fire and Marine Insurance Company, 2 Pick. insurers could be consulted. The court in this Rep. 249, the vessel belonged to Portland, case lay down the rule that the necessity must Maine, and was stranded in St. Domingo, and be so strong as to leave no alternative to the the sale was held justifiable. In Idle v. The master. They say, "The courts have enRoyal Exchange Insurance Company, 8 Taun- deavored to limit and guard this branch of the ton, 755, cited in the Massachusetts case just mercantile law with the greatest care; the referred to, a ship from London took the strongest language has been employed," etc. ground in the River St. Lawrence, below Quebec: but in this case, it is to be noticed that two of the owners resided in Quebec, and the sale was considered to be sanctioned by them; which distinguishes it from the ordinary case of sales by the master upon his own authority alone. In Hayman v. Molton, 5 Esp. Rep. 65, the vessel went from London to Jamaica, where she got aground. In Read v. Bonhom, 3 Brod. & Bing. 147, a London ship was lost in the East Indies.

In Hall v. The Franklin Insurance Company, 9 Pick. Rep. 487, the court say, "There must be something more than expediency in the case; the sale should be indispensably requisite. We mean a necessity which leaves no alternative, which prescribes the law for itself, and puts the party in a positive compulsion to act."

was

The case of Scull v. Briddle, 2 Wash. C. C. Rep. 150, was trover for certain sails, rigging, etc., which belonged to a vessel that wrecked on the coast of Maryland. The vessel and tackle were sold at a public sale by the master. Mr. Justice Washington laid down the rule of law to be, "that in cases of extreme necessity the master may sell in a foreign country rather than let the property perish, but not in the country where his owner lives; and no case of the sort, it is believed, can be shown. Mischievous would be the consequence if such doctrines were tolerated." See, also, the case of The Schooner Tilton, in the Circuit Court of Massachusetts, 5 Mason, 46. *The result [*392 of these cases is that the legal necessity to justify a sale by the master must be something more than a mere moral necessity; it must be such a case of urgency as, in the language of the court in Massachusetts, "to leave no alternative;" and the degree of this necessity may be the better understood by the important circumstance mentioned in the leading cases, viz., that the disasters in those cases happened to the vessels while in foreign ports, and where the master had no oppor

The case of Thorneley v. Hebson, 2 Barn. & Ald. 513, was that of a New York vessel insured in London, and, while on her voyage, so much injured by stress of weather that the crew deserted her at sea: she was afterwards taken possession of by ships that fell in with her, and was brought into Rhode Island, about two hundred miles from New York, where the owners resided. She was sold under a decree of the Admiralty Court, for the salvors, at a great sacrifice; and the Court of King's Bench held that the owners at New York "were near enough to have acted in the business at the time;" and might have prevented the sale by raising money to release the ship, and therefore were not entitled to abandon to the underwriters; and so the sale was not justifiable. 391*] *In this case (Cannan v. Meaburn et al., 1 Bing., 243) the master sold the cargo, under a decree of a vice-admiralty court in the Isle of France, in order to defray the expenses of repairing the vessel which was "in a sinking state." The court say, "Nothing but an ex-tunity of consulting the owners. treme necessity" will justify the sale, etc. This was also a foreign port. The court adopt the reasoning of Lord Stowell, in the case of The Fanny and The Elmira, Edw. Admiralty Rep. 117, which again supposes a case where the ship is in a foreign port, where there is no correspondent of the owners, etc.

The leading case of The Gratitudine, 3 Rob. Adm. Rep. 240, is also that of a vessel being in a foreign port, and requiring repairs. The master was allowed to hypothecate the cargo. The learned judge (Lord Stowell), in his reasoning on the question of necessity, by way of illustration, puts the case of a ship driven into port with a perishable cargo, where the master can hold no communication with the proprie tor (see p. 259), in which case the authority of agent is devolved upon him, etc. A similar illustration is again put at p. 261, still keeping in view, throughout, the idea of a foreign port as an ingredient in the necessity.

Further: it is not enough that the master makes a sale in good faith, although this must accompany the necessity; and this latter must be clearly and indisputably made out. It may be also added that sound policy demands that sales of this description should not be too much encouraged by affording facilities to masters to effect them; especially in cases like the present, where they have the means of consulting their owners in their own State or country.

But if the court should think that the facts prove a case of legal necessity, in respect to the sale of the hull of the vessel, the libelants still contend that there was no such necessity as to the sails and rigging, etc. These had been taken out, as well as the cargo, and had been carried on shore in safety.

Instead of selling the sails and rigging on the spot, under every disadvantage, such as exacting cash in hand, and the purchaser to take the In a Massachusetts case (Bryant v. The Com-risk of title, etc., the master should have either monwealth Insurance Company, 13 Pick. Rep., 543), a vessel was owned and insured in Massachusetts, and stranded on the coast of Virginia; the cargo was landed, and was not of a perishable nature, and might have been kept in reasonable safety until the owners and insurers in Massachusetts could be heard from; and it was held that the master had not authority to sell the cargo and break up the

sent them to Boston, where the parties interested could have sold them to the best advantage, or he should have immediately given information of their having been brought on shore, and then waited for orders. If sold at Boston, they would have brought one thousand dollars, or upwards; as, according to the usual estimate, the sails and rigging, etc., are con

sidered about equal to the value of the hull, or half the value of the entire vessel.

At all events, whatever might have been the value of the sails and rigging, there was no necessity for selling them, as they were already landed, with the cargo; and the master might easily have advised the owners and underwriters, and waited for their orders; which, by the usual course of the mail from Boston to Nantucket, would have reached him in two days. In point of fact, the libelants did send an agent to Nantucket as soon as the loss was known in Boston, who offered to pay all expenses incurred, etc., if the vessel could be delivered to him; but the sale had already taken place, and the purchasers refused to relinquish the vessel to the agent.

4. The sale by Folger and others to the claimants was made in Boston, July, 1828. The libelants knew the brig was in Boston in May preceding, but gave no notice to the purchasers or their agent, and took no steps to prevent a sale. This, it is contended, is a fraud on the claimants, and a court of equity (which a court of admiralty is, with limited powers) will not aid a party who thus stands by, and, by his silence and inaction, permits another, without notice, to purchase. It is a fraud on the innocent bona fide purchaser.

5. The demand of the libelants is stale, and cannot now be set up and enforced. The vessel was abandoned March 29th, 1828; the libel was not filed until September, 1834, more than six years afterwards.

6. If the sale be adjudged void for want of authority in the master to make it under the circumstances, and not ratified by the acquiescence of Crosby and others, with the knowledge of the libelants; if the libelants are not estopped by their silence and inaction, and [*394 the suit was commenced in due season, then the claimants ask to be allowed the expenses and reasonable reward for their vendors' (the purchasers and salvors) labor and hazard, which amounts to nearly the sum for which she was sold.

In conclusion, the libelants would respectfully urge upon the consideration of the court the consequences of sanctioning sales of this kind, made under circumstances which do not clearly and unequivocally amount to the strict legal necessity which the courts have required. The greater the facilities that are afforded, the stronger will be the temptation to make such sales fraudulently; and the fraud will be the more difficult of detection in proportion as the 393*] *necessity will be a question to be settled more by the opinions of the master and other witnesses, than by simple matters of fact. And even in cases where there may be no direct fraudulent intent, the facility of selling will proportionally lessen the efforts of the master and seamen to rescue their vessel from As to the authority of a master to sell on the impending danger and loss, and the owners ground of necessity, the law has been fully exand underwriters will be made to suffer accord-amined in England, and by this court, as well ingly.

The court must, in this and other cases, give weight to the important considerations of public policy, or expediency, in laying down practicable principles which are to govern the conduct of parties; and it is manifest that far greater mischiefs will follow from allowing facilities in making such sales, especially in home ports, than by rigorously restricting them to cases of absolute necessity-such a necessity as, in the language of the courts, "leaves no alternative."

Mr. Saltonstall, for the appellees, submitted the following points:

1. The sale made by the master was, under the circumstances, justified by necessity. It was made by him in good faith. There was a moral necessity for it. The hazard to which the brig was exposed was so great, the expense that must be incurred in attempting to get her off would be great and certain, and the result of further attempts so uncertain, that the sale was justifiable, and passed the property to the purchasers.

2. The sale was assented to and adopted by Crosby and others afterwards, who thus ratified the act of the master, and their assignees cannot stand in better right than they were.

3. Though the abandonment was not revoked, but was continued, yet the libelants cannot accept it six months after it was made, having first refused to accept it, and thus avoid the effect of the acquiescence and adoption of the master's acts by the assured, by force of the technical rule that an abandonment, when accepted, relates back to the time when it was offered.

1. The first point presents two questions first, as to the authority of a master to sell his vessel, and under what circumstances; second, whether the sale in this case was justifiable.

as in Massachusetts, New York, and other commercial States, within a few years, and has been clearly settled.

We believe it to be correctly stated in the opinion of the Circuit Court in this case (2 Sum. R. 206). "I agree at once to the doctrine," says the learned judge (p. 215), "that it is not sufficient to show that the master acted in good faith, and in the exercise of his best discretion. The claimants upon whom the onus probandi is thrown must go farther, and prove that there was a moral necessity for the sale, so as to make it an urgent duty upon the master to sell, for the preservation of the interest of all concerned. And I do not well know how to put the case more clearly than by stating that if the circumstances were such that an owner, of reasonable prudence and discretion, acting on the pressure of the occasion, would have directed the sale from a firm opinion that the brig could not be delivered from the peril at all, or not without the hazard of an expense utterly disproportionate to her real value as she lay upon the beach, then the sale by the master was justifiable, and must be deemed to be made by a moral necessity. And I consider this to be the true doctrine, deducible from the case of Gordon v. The Massachusetts Fire and Marine Insurance Company, 2 Pick. R. 249, where the subject is examined very much at large, and with great ability."

We believe the doctrine on this subject to be here truly stated, and are willing the conduct of Captain Phillips should be tested by it.

The law on this subject was fully examined in the case cited (2 Pick. R. 249) by the late distinguished Chief Justice Parker, of Massa

chusetts. It has come under the consideration, be absurd to say that the master shall not sell, of the same court in several subsequent cases, because the vessel, though exposed to immediand has been revised; but, on a careful consid-ate destruction, is in the country of the owner's eration of the cases, it will be found that the residence. And in a country of such vast exdoctrine of the first case has not been varied, tent as ours, the doctrine suggested would be but, on the contrary, has been confirmed. Hall extremely injurious in its consequences. In et al. v. The Franklin Insurance Company, 9 most of the decided cases, as might be supPick. 466; Winn et al. v. The Columbia In- posed, the stranding happened abroad. In the surance Company, 12 Pick. 279; Bryant et al. case of hypothecation, the vessel is supposed to v. The Commonwealth Insurance Company, 13 be in safety. The question is as to funds for Pick. 543. repairs and outfits, and in such cases it is reasonable that in a country of such limited extent and facility of communication as England, the owner should be consulted. There can seldom be a necessity for instant action. Still Ireland, and it is believed Scotland, are considered to be foreign countries: and it may be remarked that Nantucket is farther from the main land than Ireland is from Eng. [*396 land, and that the owners were five hundred miles from that island, and in another State.

In the case 9 Pick. 466, the sale was not justified; but it was on account of the particular circumstances, as each case indeed must depend on its own circumstances. The ship was on a voyage from Boston to New Orleans; | struck on the coast of Florida; was got off, and proceeded to Key West. She did not leak, and might have remained there in safety until notice of the disaster should have been sent to Boston; and after the sale, the vessel in fact 395*] proceeded to *Boston, with the same master, and without any repairs. It was properly held that the sale was not necessary, and that the insurers were not affected by it. Bryant v. The Commonwealth Insurance Company was the case of a cargo insured from Havana to Castine, in Maine; the vessel was wrecked about forty miles from Norfolk, but the cargo was taken from the vessel without damage, and might have been sent to its place of destination for less than fifty per centum of its value; but the master sold it on the beach, and it was held that there was not a legal necessity for the sale.

It is very clear that the sale was not justifiable, according to the doctrine in Gordon's case, and as clear that there is no similarity between the circumstances of that sale and the sale of the brig Sarah Ann. This subject has come under the consideration of this court, and the law is settled on the same principles as in the cases cited. Patapsco Insurance Company v. Southgate et al. 5 Peters's Rep. 604.

It can hardly be understood to have been settled in England that a master has authority to sell a ship on the ground of necessity, until the case of Idle v. The Roy. Ex. Ass. Co. 8 Taunt. R. 770, and 3 Moore. In that, and in subsequent cases, it is placed on the same ground as in this country, and that is, the ground of necessity-moral, legal necessity, arising from extreme peril and the danger of delay. It follows necessarily from the relation of the master to those interested, that there must be this authority. It supposes a case of extreme peril. What is to de done? It will not do to wait until the owner can be consulted. There is a necessity for immediate decision and action. In such cases the master may do what he might well suppose the owner would do if present; and, in the exercise of a sound discretion, sell the vessel and appurtenances.

It follows from the principles and the reasons on which this authority rests, that it cannot be affected by the circumstance in what country the disaster happened; whether in a foreign country or not. There is no case in which it is decided that this authority is limited to cases happening in a foreign country. The question is, in every case, whether there was an urgent necessity for the sale-whether a delay would be extremely perilous. In such a case it would

The case of Scull v. Briddle, 2 Wash. Cir. R. 150, is very briefly reported, and this point was not essential to the decision, which was mainly placed on another ground.

In Idle v. The Royal Exchange Assurance Company, the decision was not placed at all on the circumstance that one of the owners was present; on the contrary, Dallas, Ch. J., remarked, "I should further say that on the broad ground of a power to act on a sudden emergency, in order to save as much as could be saved from impending ruin, whether the sale be by the owner or the captain will make no difference, if the circumstances justified the selling, and the sale was honestly and fairly conducted." And with another remark of the same learned judge the consideration of this part of the case is closed: "Although general principles are highly valuable when they can be of general and extensive application; yet, from the very nature of subjects of this description, the application of principles, as far as decided cases furnish any rule, must depend upon the circumstances of the particular case."

It is contended that under the law as settled, the sale of the Sarah Ann was proper and justifiable. This makes it necessary to look to the evidence.

Was, then, the sale justifiable? Under all the circumstances, was it necessary for the captain to sell the property? If it was a valid sale, then the title of the claimants is unquestionable. This depends on the state of things at the time. What was the situation of the vessel when the captain despaired of getting her off, and determined to unlade the cargo, to strip the vessel, and to sell the property there? It is necessary to look at the evidence. The depositions, on the part of the claimants are very strong, and we think, conclusive on this question.

As to the main facts, they are uncontradict. ed; on the contrary, as to the exposure of the brig, etc., they are corroborated by Pease and Gardner, two of the libelants' witnesses. As remarked by the learned judge before whom the cause was tried (2 Sum. R. p. 216), we must look to the state of things as it was at the time of the sale, and weigh all the cireumstances; as, the position and exposure of the brig; the season of the year and chance of

But there is no evidence to show that any, claim; and, indeed, they did not at that time. part of the sails and rigging, or of the appur- But they were bound to give notice of their tenances sold, were connected with the vessel situation; and their standing by in silence and at the date of the libel. By the account of inaction, and permitting another to purchase sales it appears that they were sold in small is a fraud, which can receive no favor [*400 lots to many different persons. The sale was in this court, upon a proceeding in admiralty. six years before the libel; the vessel had been Wendell v. Van Rensselaer, 1 Johns. C. R. 399*] constantly employed, and the presump- 344, and cases cited by Kent, Chancellor; Storrs tion, therefor, is that no part of the original v. Barker, 6 Johns. Č. R. 166. sails and rigging remained connected with the brig.

It may be observed that, in the case of Idle v. The Royal Exchange Assurance Company, and in most of the cases, the sails, rigging, etc., were separated from the vessel, and sold in different lots, but at the same time.

2. We say that the sale was adopted by the assured afterwards; that they thus ratified the act of the master, and that the libelants, claiming under them, as assignees, cannot stand in a better situation than they were.

The sale was on the day when the offer of abandonment was made. That abandonment was expressly rejected. Whose vessel was she, then, at the time of the sale? We say, the original owners'; and that they, and all persons claiming under them, must be bound by their ratification of the sale, and by their conduct, as much so as if they had stood by and directed the sale.

5. The demand is stale and cannot now be enforced. The libel was not filed till six years and a half after the abandonment.

If the libelants' title relates back to March, 1828, for one purpose, it must for another. They ought then to have enforced their claim without so great delay. The vessel was owned and employed in Gloucester, a short distance from Boston. She was often in Massachusetts, and might with proper diligence have been seized at an earlier period by the libelants; and if any doubt exists of this, the claimants ask leave to amend their answer and file proof of the fact. They ought not to have delayed enforcing their claim almost six years. Willard v. Dorr, 3 Mass. 161; The Schooner Adeline, 9 Cranch, 243; The Marianna Flora, 11 Wheaton, 1.

6. In support of the sixth point in the brief statement, the claim of amelioration, we refer to this case. 2 Sum. 220; The Perseverance, 2 Rob. 239; The Nostra de Conceisas, 5 Rob. 294. the court: Mr. Justice Wayne delivered the opinion of

We contend that the libelants cannot now be permitted to take different ground. Having taken the assignment subsequently to the acquiescence of Crosby et al. the libelants are bound by it. Courceir v. Ritter, 4 Washing- the United States for the District of MassaThis is an appeal from the Circuit Court of ton, C. C. R. 549; Pierce v. Clark, 1 Barn. & chusetts, and has been submitted to this court Cress. 186; Cairnes v. Bleecker, 12 Johns. Rep. 300; Codwise v. Hacker, 1 Caines R. 526; Marsh on the printed arguments of the counsel for v. Gold, 2 Pickering, 289; Clark's Executors V.ments so entirely occupy the grounds relied the libelants and respondents. Those argu Reimsdyke, 9 Cranch, 153. 3. As to the third point, we think it is neces-upon in support of the respective rights of the sary to look to the situation of the parties at parties, and the case has been so fully consid the time of the acceptance of the abandonment, Sumner, 206, that this court has little left for ered in the court below, as it is reported in 2 in October; and we contend that the respond-it to do than to announce its opinion upon the ents had acquired rights under their purchase, by the conduct of the libelants. They refused points it deems material for its decision. This the abandonment; they disclaimed any owner be better understood and settled by inquiring will be done briefly. The particular case will ship in or right to the brig; the original own: what is the right of the master to sell a ship in ers stood by and saw the sale on the beach, and the event of an admitted stranding? This inafterwards in Boston, to the respondents, volves the necessity for a sale, in the circumwithout objection or claim. By this acqui- stances under which it is done, to make it jusescence the respondents acquired rights as tifiable in the master, or otherwise. All will against the original owners. Shall they now be defeated by the supposed relation back of agree that the master must act in good faith, the settlement in October, to the offer to all concerned, and that it can only be done upexercise his best discretion for the benefit of abandon in March, which, at the time, was repudiated? On this point we ask the considera-termined in each case by the actual and imon the compulsion of a necessity, to be de

tion of the court.

4. The conduct of the libelants was a fraud on the claimants. In May, 1828, they knew the brig was in Boston, and for sale, but they took no steps to prevent it. They did not notify the master and part owner, or Cartwright, the agent for selling, or the public, in any way, of any claim, or any objection to the sale. How were the purchasers to know of any objection? Suppose they had inquired-to whom should they go? The selling agent had no knowledge of any objection on the part of Crosby et al. or the libelants. She was registered in the names of the purchasers. The respondents had a right to suppose from the conduct of the libelants that they made no

pending peril to which the vessel is exposed; persons competent to judge, that the vessel from which it is probable, in the opinion of cannot be saved. This is, as it is decided in some of the English courts, an extreme necessity. The master must have the best information which can be got, and must act with the most pure good faith. So says Lord Ellenborough in Hayman v. Molton, 5 Esp. 65. It is also properly termed a moral necessity, because when the peril and information concur, as we have just stated, it then becomes an "urgent duty upon the master to sell, for the preservation of the interest of all concerned." It should not be termed a legal necessity, as it is in the argument of the counsel for the libel