Statutes of Massachusetts, but does not in the Revised Statutes of Maine, from which the Act of 1851 was taken.

If there should be any limitation of the liability of ship-owners, it seems to be just that the liability of a part-owner should be limited to the value of his interest.

A different view has, however, been taken in Massachusetts, and it is held by the supreme court of that State that a part-owner is liable for the full value of the vessel.1

And it is held by the same tribunal that the value of the owner's interest, under the third section, is its value unincumbered, and that no allowance is to. be made for a mortgage.2

In respect to the "freight then pending," it has been held that the earnings of the vessel in transporting the goods of the owners are to be included. And if the cargo is damaged by the unseaworthiness of the vessel, it has been held that the owner of the vessel cannot abandon his interest in the vessel, because he is presumed by law to be cognizant of such unseaworthiness, and the loss is therefore not "without his privity or knowledge." 4 If the owner of the vessel is not owner of the freight, the freight does not contribute to the loss. 5

Section 5 provides that the charterer of a vessel, if he mans, victuals, and navigates such vessel at his own expense, or by his own procurement, shall be deemed the owner of such vessel, within the meaning of the act; and such vessel, when so chartered, shall be liable in the same manner as if navigated by the

owner.

There is no similar section in the English statutes. The early Maine and Massachusetts statutes contained like provisions, and the Maine act of 1821 also contained a provision giving the owner of the vessel a right of action against the charterer to recover the

Spring v.Haskell, 14 Gray. 309.

Spring v. Haskell, 14 Gray, 309. So in Barnes v. Steamship Co. cited ante, p. 133, n. 1, Grier, J., held that the owners of the vessel injured had a right to priority of payment out of the fund, without any deduction for or on account of bottomry, mortgage, pilotage, towage, seamen's wages, or other contracts of the masters or owners of the vessel doing the damage. See, however, Pope v. Nickerson, 3 Story, 465.

* Allen v. Mackay, 1 Sprague, 219.

4

* In re Sinclair, U. S. D. C. South Carolina, 8 Am. Law Reg. 206.

Walker v. Boston Ins. Co. 14 Gray, 288.

value of the vessel, in case a loss was compensated for from the freight or the proceeds of the sale of the vessel. By the Maine statutes of 1840, the right was further extended, so as to give the owner of the freight a claim against the charterer, if the freight made compensation. It has been held that if the freight is owned by a person other than the owner of the ship, the owner of the freight is not liable if he does not man, victual, and navigate the ship.1

Section 6 provides, that the act shall not affect the remedy against the master and mariners, and is taken partly from the Revised Statutes of Maine,2 and partly from the 53 Geo. III.3 Under this last-mentioned statute it has been held that if a part-owner is in command of the vessel, his negligence does not deprive the other part-owners of the benefit of the statute.4

Section 7 provides, that any person or persons shipping oil of vitriol, unslacked lime, inflammable matches, or gunpowder, in a ship or vessel taking cargo for divers persons on freight, without delivering at the time of shipment a note in writing, expressing the nature and character of such merchandise, to the master, mate, officer, or person in charge of the lading of the ship or vessel, shall forfeit to the United States one thousand dollars.

It is then provided that, "This act shall not apply to the owner or owners of any canal boat, barge, or lighter, or to any vessel of any description whatsoever, used in rivers or inland navigation."

The last part of this section follows the language of 53 Geo. III.5 It has been held that a vessel on Lake Erie, bound from Buffalo to Detroit, enrolled and licensed for the coasting trade, and engaged in navigation and commerce as a common carrier between ports and places in different States upon the lakes and navigable waters connecting the same, is not a vessel used in inland navigation.6

1 Walker v. Boston Ins. Co. 14 Gray, 288.

2 1840, c. 47, § 11.

Ch. 159, § 4.

Wilson v. Dickson, 2 B. & Ald. 2.

5 Ch. 159, § 5. This also excepted "any ship or vessel not duly registered according to law."

Moore v. American Transp. Co. 24 How. 1, 5 Mich. 368. See also Walker v. Transp. Co. 3 Wallace, 150. See, under 26 Geo. III. c. 86, Hunter v. M'Gown, 1 Bligh, 573.

CHAPTER XVIII.

OF MATERIAL MEN AND THEIR LIENS.

THE persons employed to repair a ship, or, in general, to do any work about her, and those who furnish for her use supplies of things necessary to her equipment and safe navigation, are known in the law of shipping as material men; they are defined in Jacobsen's Sea Laws as "the persons who furnish and construct the different materials of a ship"; but a somewhat broader sense is usually given to this phrase, and Lord Stowell, in one case, cited a report of Sir Leoline Jenkins, made to the king, in which that learned judge said: "Those are commonly called material men, whose trade it is to build, repair, or equip ships, or to furnish them with tackle and provision necessary in any kind."2 We propose in this chapter to consider the liens of material men so far as they exist at common law, or are given by State statutes, reserving the consideration of the lien given by the maritime law, and the enforcement of the lien given by the State laws, by a court of admiralty, for our chapters on Admiralty Jurisdiction.

In England, from the time of Charles II. until 1840, the lien of a material man was limited to the case of a shipwright or other person to whom possession of the ship had been given for the purpose of repair; he might retain his possession for his wages or charges as any other workman may any chattel (a tailor, clothing; a watchmaker, a watch), by the common law of bailment. In England it has been held that if material men, who repair a vessel, retain possession of her and claim a common-law lien for the repairs made, they cannot add to this charge the expense of keeping the vessel, since they keep her for their own benefit. But we

1 Page 357, note.

The Neptune, 3 Hagg. Adm. 129, 142.

Ex parte Bland, 2 Rose, 91; Franklin v. Hosier, 4 B. & Ald. 341; The Vibilia, 1 W. Rob. 1, 6. But he cannot detain the vessel against the authority of the court of admiralty, when the ship is in the possession of its officer, though that court will then protect his rights. The Harmonie, 1 W. Rob. 178.

• Somes v. British Empire Shipping Co. 8 H. L. Cas. 338.

know of no reason why the material men could not maintain an action against the ship-owners for any damages they might suffer in this way from their neglecting to take away the vessel when repaired, and pay for the repairs.

This common-law lien is undoubtedly in force in this country.1 Many of our States have, by statute, given a lien to material men against ships in their home ports.2 We must refer to these statutes for their especial provisions, which do not, however, generally differ very much from the rules of admiralty in relation to the same lien. We will here state some of the results of adjudication upon them.

3

In New York the lien of the builder attaches as soon as the structure assumes the form of a ship. The statute does not apply to canal boats. But it has been held to apply to an old steamboat which was fitted up as a theatre, and used as such at different river ports, and the vessel was held liable though some of the supplies were furnished for the theatre. A debt for goods furnished is not contracted till the goods are actually delivered, and an

1 Nicholson v. May, Wright, 660; The General Smith, 4 Wheat. 438, per Story, J.; The Sch. Marion, 1 Story, 68.

2 Maine, Rev. Stats. c. 91, §§ 6-14; New Hampshire, Compiled Statutes of 1853, tit. xv. c. 139; Massachusetts, Acts of 1848, c. 290, Acts of 1855, c. 231, Gen. Stats. 1860, c. 151; New York, 2 Rev. Stats. Denio & Tracy's ed. 733, Act of 1855, c. 110, amending the preceding statute, and Act of 1858, c. 247, providing for the registry of liens and incumbrances upon boats navigating the canals of the State; Laws of Pennsylvania, Dunlop's ed. 681, Act of 1858, No. 404; Georgia, Cobb's Dig. 426, Act of 1852, No. 137; Alabama, Code of 1852, p. 491; Florida, Stat. of 1847, Thompson's Dig. 413, Act of 1848, c. 268, Act of 1850, c. 406; Arkansas, Rev. Stats. c. 14; Tennessee, Act of 1833, c. 35; Kentucky, Act of 1839, c. 1088, Act of 1841, c. 267; Statutes of Ohio, Swan's ed., 1854, c. 26, p. 185; Compiled Laws of Michigan, 1857, c. 149, vol. 2, p. 1313; Indiana, Rev. Stats. 1852, vol. 2, p. 183; Illinois, Rev. Stats. 1845, p. 71, ed. of 1858, vol. 2, p. 785; Missouri, Rev. Stats. 1855, vol. 1, p. 302; Iowa, Code of 1851, p. 293, Act of 1854, c. 125; Wisconsin, Rev. Stats. 1849, c. 116; Laws of California, First Session, p. 189, c. 75, § 2, Compiled Laws of 1853, p. 576, c. 6, § 318. In Louisiana, a similar privilege exists under the general Spanish law. See Bourcier v. Schooner Ann, 1 Mart. La. 165. See also The Civil Code, art. 2748, and the case of Peyroux v. Howard, 7 Pet. 324, 341.

4

Many v. Noyes, 5 Hill, 34. But special provision is made for canal boats by the act of 1858, c. 247.

5 Pendleton v. Franklin, 3 Seld. 508, affirming the same case, Franklin v. Pendleton, 3 Sandf. 572.

agreement to deliver is not enough. If the creditor permits the vessel to sail without enforcing his lien, he loses it, but if she sails on a trial trip merely, for the purpose of testing her machinery, this is not a departure within the statute.2 So, if she leaves the State in a fraudulent manner, at a time when she was not legally liable to arrest.3 Where repairs were put on a boat running from New York to Albany, at different times, under one general order to repair the boat when necessary, it was held that the contract was not an entire or indivisible one, but that each job constituted a separate debt, and that every trip of the boat was a departure within the statute. It is sufficient to give a lien under the statute for money advanced for supplies furnished to a vessel in her home port, that the items of account amount in the aggregate to fifty dollars; and it is not necessary that each item should amount to this sum.5 Wood for fuel has been held in New York not to be

included within the term "supplies." 6 But in Illinois the point has been determined the other way. And in New York it has

been held to come within the term "stores." 8

In Maine, the lien is on the vessel while building, and continues for four days after she is launched. If the materials are sold on time, and this time has not elapsed at the expiration of the four

1 Veltman v. Thompson, 3 Comst. 438; The Alida, Abbott, Adm. 173. * Hancox v. Dunning, 6 Hill, 494.

The Steamboat Joseph E. Coffee, Olcott, Adm. 401. See also Nicholson v. May, Wright, 660. By the statute under which these decisions were made, the debt ceased to be a lien at the expiration of twelve days after the day of departure to a port within the State. And in all cases the lien was to cease immediately after the vessel's leaving the State. This is amended by the act of 1855, so that the lien remains in force till the expiration of sixty days after the return of the vessel to the port at which she was when the debt was contracted, but in all cases the lien ceases immediately after the vessel leaves such port, unless, within ten days after such departure, a specification of the lien is sworn to and filed in the county clerk's office of the county where such lien is created.

Rockafeller v. Thompson, 2 Sandf. 395; The Alida, Abbott, Adm. 165. The same rule was laid down in a suit against the same boat, for coal furnished at different times under one agreement. Abbott, Adm. 173. See also The Jenny Lind, 3 Blatchf. C. C. 513.

The St. Mary, 2 Blatchf. C. C. 329.

'Johnson v. Steamboat Sandusky, 5 Wend. 510; The Fanny, cited Abbott Adm. 185.

7 Clark v. Smith, 14 Ill. 361.

• Crooke v. Slack, 20 Wend. 177; The Alida, Abbott, Adm. 173, 185.