If, however, we understand by actual danger the actual probability of destruction, as far as that could then be measured or estimated, then, it is true that the authority of the master to sell springs only from a necessity which is caused by actual danger; for danger is one thing, and destruction another; from danger there may be escape, and this may even be swift and easy, and yet the danger have been real and great. The rule must be, that, if the circumstances were such that if any master of ordinary skill and intelligence, carefully observing all the facts, and weighing all probabilities, would be led to the conclusion that an escape from destruction was but little more than possible, and that a delay sufficient to acquaint his owners with his condition and receive their instructions would in all probability cause a greater loss, he may then sell.1 We may be guided, in applying this rule to any case, by inquiring what any owner of common character and intelligence would have done if present; not always what that identical owner would have done, because a peculiarity of temperament might make him hope too long or despair too soon. The ship must not, we repeat, be sold on a mere expediency; or because that may turn out to be the best course. But if it is quite certain that any owner of common understanding and acquaintance with ships and navigation, being on the spot and conusant of all the facts, would conclude that the only thing left for a prudent man to do was to sell the ship at once, then the master may sell.2 Royal Ex. Ass. Co. 8 Taunt. 755; Fontaine v. Phoenix Ins. Co. 11 Johns. 293; 465. 1 See post, p. 64, n. (2) and (8). 2 Where the master sells the ship, and the question of the validity of the sale is disputed by the former owner, so that the only question is between him and the vendee, it is clear that the sale will be deemed valid, if the circumstances attending it were such that a jury would be warranted in finding that a prudent owner would have done as the master did. Hayman v. Molton, 5 Esp. 65. But we are not disposed to carry the doctrine of "prudent uninsured owner" further than this. And in a case of insurance, we should say, that, in judging of the necessity of the sale, what a prudent owner uninsured would have done, if present, should not be considered. We are aware that this is said to be a test, in numerous cases; but to show the fallacy of it let us take the case of 'memorandum articles,' where the rule is that if the goods arrive in specie there is no total loss. Now, probably in every case, the best thing that can be done is to sell the Whether the mere want of funds can be of itself a sufficient necessity to justify a sale by a master has been much disputed.1 But we strongly incline to the conclusion, that a master can have no power from necessity to sell a ship that is not a wreck. It is true that the master may have no funds with him, and that his owners may not be known, or their pecuniary responsibility ascertained where his ship needs repair; but it is not easy to imagine a place where extensive repairs could be made, and yet no money be raised on bottomry of the ship. To meet this very emergency, the law and custom of bottomry are universal. If the requisite repairs would cost so much that the ship, when repaired, would not suffice as security for the sum, then the greatness of the injury, as measured by this cost, might be equivalent to a wreck, and on this ground justify a sale. If the injury be less, so that a comparatively small sum would repair her, but that cannot be raised, then it is a question whether the master should sell at once, or delay the sale until orders can be received from the owners. And, although there may be peculiar cases and emergencies, which must be judged of by themselves, as a general rule we should have no hesitation in saying, that the master of a ship thus slightly injured would have no other right than to let her lie in port, with all possible precaution against deterioration, until he could hear from his owners.2 There may be, perhaps, a case in which the master may be justified in selling by a mere pecuniary necessity; but this must be extreme and unquestionable; it must be such as to come clearly within the rule already laid down, and make it indisputably certain that the goods; but it is certain that this will not be taken as a criterion. As we shall have occasion to discuss this question at length in that part of this work which treats of insurance, we merely make these suggestions here. 1 This point came up in the case of the American Ins. Co. v. Ogden, 15 Wend. 532. The master of the ship, on her arrival in a damaged condition at the port of destination, finding himself without funds and without credit, and being unable to raise money for the purpose of repairs, either by bottomry or otherwise, sold the vessel, although the loss was neither actually nor technically a total one. This was held by a majority of the court, (Bronson, J., dissenting,) to justify an abandonment by the owners. The decision was reversed in the Court of Errors, 20 Wend. 287, on the ground that the want of funds was owing to the default of the owner, who could not make a loss arising from his own fraud or neglect the means of charging the insurers, but the conduct of the master in selling was declared to be entirely justifiable, p. 306, 319. 2 See post, p. 64, n. (2) and (3). owner himself, if there under similar circumstances, would have found a sale the only thing he could do; for, it must be such as to show that the sale was clearly of necessity, and not of expediency only. At one time, a distinction was made between the power of the master if abroad, or if wrecked on the coast of his own country.1 But this has disappeared. The only rule now is, that he must inform his owners, and wait their instructions, if he can. The general introduction of the electric telegraph will much extend this possibility, and consequent duty. For, let the master be where he may, and his owner far or near, it is certain that he can only dispossess the owner of his property by a sale, when his authority for this rests on necessity, and only when that necessity is such as to preclude intercourse between them without an unreasonable exposure of the property to peril. In other words, if he can become the agent of the owner with instructions, then he cannot be his agent from necessity.3 1 Scull v. Briddle, 2 Wash. C. C. 150. 2 The Brig Sarah Ann, 2 Sumn. 206, 215. In this case, Mr. Justice Story states the law as follows: "It has been suggested at the argument, that, as the stranding was on a home shore, at no great distance from the residence of the agent of the owners, the master was not authorized to sell without consulting the agent or the owners. I agree at once to the position, if there is no urgent necessity for the sale. But if such an urgent necessity does exist, as renders every delay highly perilous, or ruinous to the interests of all concerned, the duty of the master is the same, whether the vessel be stranded on the home shore, or on a foreign shore, whether the owners' residence be near or be at a distance. I am aware of the doctrine maintained by my brother, the late Mr. Justice Washington, in Scull v. Briddle, 2 Wash. C. C. 150; and, unless it is to be received with the qualification above stated, I cannot assent to it." Same case affirmed, New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387. 3 In Pike v. Balch, 38 Maine, 302, a vessel on a voyage from Calais, Maine, to New York, was wrecked on an island off Little Machias Bay. There was a telegraph station distant twenty miles from the wreck. It was held, that if the master could "by any available means in his power communicate with his owners, he was bound to do so. The vessel was sold by the master without notice being given to the owners, and the sale was held to be invalid. And in the New England Ins. Co. v. Brig Sarah Ann, 13 Pet. 387, 401, the court say: "The true criterion for determining the occurrence of the master's authority to sell is the inquiry, whether the owners or insurers, when they are not distant from the scene of stranding, can by the earliest use of the ordinary means to convey intelligence, be informed of the situation of the vessel in time to direct the master before she will probably be lost. If there is a probability of loss, and it is made more hazardous by every day's delay, the master may then act promptly, to save something for the benefit of all concerned, though but little may be saved." See also The Brig Sarah Ann, 2 Sumn. 215; Scull v. Briddle, 2 Wash. C. C. 150. In Hall v. If a sufficient necessity existed, and the master proceeded to make sale, he does so as the agent of the owners, and binds them by his acts or words in the same manner that he would if otherwise authorized to make the sale.1 SECTION IV. OF THE SALE OF A SHIP UNDER A DECREE OF ADMIRALTY. The ship is sometimes sold, abroad or at home, under a decree of the court of admiralty. If this be a condemnation as prize, or for forfeiture as contraband, or for smuggling, or for any such cause, or to pay salvage, or discharge a bottomry bond, or to satisfy any of the liens known to the maritime law, it would seem to be valid and binding upon all courts and all parties, unless it be shown to be vitiated by fraud.2 But if it be merely a decree on a survey, and rest on the ground of unfitness for service, or unseaworthiness, then it would seem that the courts of the country in which the ship belongs will look behind the judgment in admiralty, receiving the decree as of little more authority than the report of surveyors, or a similar statement, on the authority of which it probably rests. And the sale will then be valid or void, accordingly as the actual facts shall show it to have been necessary and justified, or the opposite.3 The courts Franklin Ins. Co. 9 Pick. 466, the ship was in no immediate danger of becoming a wreck. It would have taken thirty or forty days to have communicated with the underwriters, and to have received word back. The vessel being sold without notice of her condition being given, the sale was held to be void. See also Peirce v. Ocean Ins. Co. 18 Pick. 83. 1 Woods v. Clark, 24 Pick. 35. The Tremont, 1 W. Rob. 163; Attorney-General v. Norstedt, 3 Price, 97; The Helena, 4 Rob. 3. * In Reid v. Darby, 10 East, 143, Lord Ellenborough remarked, of the exercise by admiralty courts of this jurisdiction: "No instance has been discovered, in which such a power has been exercised in the admiralty court at home; nor can we find any terms in the vice-admiralty commission, or any principle upon which that practice can be sustained,, (which certainly, however, has obtained in the vice-admiralty courts abroad,) of decreeing, upon the mere petition of the captain, the sale of a ship reported upon survey to be unseaworthy and not repairable, so as to carry the cargo to the place of its destination, but at an expense exceeding the value of the ship when H of the United States have asserted that this subject is within the general jurisdiction of admiralty, and that such a decree may be made. And there are intimations, perhaps, that such a decree would be the best protection of a master, and that it would be wise in him, therefore, to obtain it. It might be inferred from this, that they would consider such a decree of a foreign court of the same force as a decree of condemnation. But we are of opinion that they would not only inquire into the foundation on which such decree was founded, and into all facts bearing upon the question of jurisdiction, but also into the distinct question whether the facts connected with the condition of the ship were such as justified the decree.1 The practice of selling by decree of admiralty merely for unseaworthiness is not much known in this country, and the rule The repaired." The same doctrine is reaffirmed in Hunter v. Prinsep, 10 East, 378; Morris v. Robinson, 3 B. & C. 196, 203. English court of admiralty, though they admit, yet regret, the want of jurisdiction. The Fanny and Elmira, Edwards' Adm. 117, 119; The Warrior, 2 Dods. 288, 293; The Pitt, 1 Hagg. Adm. 240. 1 Thus, Mr. Justice Story, in the case of the Schooner Tilton, 5 Mason, 465, 474, says: "To what is suggested in that case, (Reid v. Darby,) as to the want of jurisdiction in the admiralty courts to decree the sale of a ship in a case of necessity upon an application of the master, I, for one, cannot assent. I agree, that in such a case the decree of sale is not conclusive upon the owner or upon third persons, because it is made upon the application of the master, and not in an adverse proceeding. But I cannot but consider it as strictly within the admiralty jurisdiction. It is primâ facie evidence of a rightful exercise of authority, but no more. The proceeding, being ex parte, cannot be deemed conclusive in favor of the party promoting it." See also Janney v. Columbian Ins. Co. 10 Wheat. 411, 418; Dorr v. Pacific Ins. Co. 7 Wheat. 581; Armroyd v. Union Ins. Co. 2 Binn. 394; Steinmetz v. United States Ins. Co. 2 S. & R. 293; The Dawn, Ware, 485, 487. In Grant v. M'Lachlin, 4 Johns. 34, an American vessel was captured by a French privateer, and carried into port, but was never condemned as a prize. Subsequently she was employed by the French government to carry passengers to Barracoa, and arrived there in a dismantled condition. After remaining there several months, she was sold by order of the Spanish commissary, and got off and repaired. She subsequently arrived in New York, where her original owners brought an action of trover against the vendee. The court held that the sale was fair and bonâ fide, and, being made in accordance with the laws of Spain, was binding on all parties. Mr. Justice Thompson said: "A sale according to the law of the place where the property is must vest a title in the purchaser, which all foreign courts are bound, not only from comity, but on strong grounds of public utility, to recognize. Without this rule, there could be no safety in derivative titles. The only inquiry in these cases is, Was the sale under a competent authority?" Where a sale is made by the advice of surveyors, it is prima facie valid, and the burden of proof is on the party seeking to impeach it. Gordon v. Mass. F. & M. Ins. Co. 2 Pick. 249, 265. |