*272 gan, (d) Indiana, (e) Illinois, (f) Missouri, (g) * Iowa, (h) Mississippi, (i) Wisconsin, (j) and California. (k) But by

the decisions in these States, it would seem that actions of this sort will not be sustained under these statutes, where the cause of action arose out of the States. (7)1

Ohio, 421; Steamboat Albatross v. Wayne, 16 Ohio, 513; Sch. Argyle v. Worthington, 17 Ohio, 460.

(d) 1839, Sess. L. p. 70. This was repealed in 1846, R. S. c. 122. See Robin son v. Steamboat Red Jacket, 1 Mich. 171; Mores v. Steamboat Missouri, 1 Mich. 507; Truesdale v. Hazzard, 2 Mich. 344; Ward v. Willson, 3 Mich. 1; Watkins v. Atkinson, 2 Mich. 151.

(e) 1838, Steamboat Rover v. Stiles, 5 Blackf. 483; Southwick v. Packet Boat Clyde, 6 Blackf. 148; Olmstead v. McNall, 7 Blackf. 387.

(f) Rev. St. 1845, p. 71, ed. 1856, p. 107; Sch. Constitution v. Woodworth, i Scam. 511; Chauncey v. Jackson, 4 Gilman, 435; Germain v. Steam Tug Indiana, 11 Ill. 535; Merriman v. Canal Boat Col. Butts, 15 Ill. 585.

(g) R. C. 1845; Williamson v. Steamboat Missouri, 17 Mo. 374; Jones v. Steam

boat Morrisett, 21 Mo. 144; Ritter v. Steamboat Jamestown, 23 Mo. 348.

(h) Rev. Stat. 101; Code, c. 120; Steamboat Kentucky v. Brooks, 1 Greene, 398; Ham v. Steamboat Hamburg, 2 Clarke, 460; West v. Barge Lady Franklin, 2 Clarke, 522.

(i) Acts of 1840, 1841, Hutch. Dig. 288, art. 6; id. 290, art. 8; Steamboat Gen. Worth v. Hopkins, 30 Miss. 703.

(j) Rev. Stat. 116; Rand v. The Barge, 4 Chand. 68.

(k) Laws, 1st Sess. 189, c. 75, § 2; Compiled Laws, 1853, 576, c. 6, § 318.

(1) Steamboat Champion v. Jantzen, 16 Ohio, 91; The Sch. Aurora Borealis v. Dobbie, 17 Ohio, 125; James v. Steamboat Pawnee, 19 Miss. 517; Frink v. King, 3 Scam. 144; Turner v. Lewis, 2 Mich. 350; Steamboat Kentucky v. Brooks, 1 Greene, Iowa, 398; Strother v. Lovejoy, 8 B. Mon. 135; Merrick v. Avery, 14 Ark. 370.

1 U. S. Stat. of June 26, 1884, c. 121, § 18, provides that “the individual liability of a shipowner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending, provided, that this provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action, nor shall the same apply to wages due to persous employed by said shipowners." It was held in Simpson v. Story, 145 Mass. 497, that this statute does not apply to fishing vessels. But the provisions of the statute were by Stat. of June 19, 1886, c. 421, § 4, extended to "all seagoing vessels, and also to all vessels used on lakes or rivers, or in inland navigation, including canal boats, barges, and lighters." (x) — W.

(x) Sect. 4 of the Act of 1886 is constitutional. Ex parte Garnett, 141 U. S. 1, 11 S. Ct. 840, 35 L. Ed. 631; The Katie, 40 Fed. 480, 7 L. R. A. 55. Upon the Act of 1884, see Gokey v. Fort, 44 Fed. 364; The Annie Faxon, 75 Fed. 312; Warner v. Boyer, 74 Fed. 873; The Puritan, 94 Fed. 365. Proceedings to limit ship-owners' liability are admiralty cases. Oregon R. & N. Co. v. Balfour, 179 U. S. 55, 21 S. Ct. 28, 45 L. Ed. 82. But the limited-liability Act applies to an action brought in a State court under a State statute to recover damages for death caused by negligent navigation within the State limits. Butler v. Boston & S. S. Co., 130 U. S. 527, 9 S. Ct. 612, 32 L. Ed. 1017. Further changes were made by the "Harter

Act," noticed supra, p. 174, n. (x). The limitations and exemptions of the statute apply to both domestic and foreign vessels. Constable v. National S. S. Co., 154 U. S. 51, 62, 80, 14 S. Ct. 1062, 38 L. Ed. 903. See further The Longfellow, 45 C. C. A. 387, and note; Pacific Coast Co. v. Reynolds, 114 Fed. 877; Gleason v. Duffy, 116 Fed. 298; In re La Bourgogne, 117 Fed. 261.

An underwriter may, on abandonment as a total loss, claim, as "owner," this exemption, which applies to loss of property, including baggage, or of life, and to personal injuries. Craig v. Continental Ins. Co., 141 U. S. 638, 12 S. Ct. 97, 35 L. Ed. 886; In re Louisville &c. Packet Co., 95 Fed. 996.

Persons employed to repair a ship, or who furnish supplies necessary to her equipment and navigation, are called in the law of shipping, as we have said, material men. They have certain liens against the ship, which, with the method of enforcing them, have been considered in a previous section of this chapter.

SECTION II.

OF THE TRANSFER OF A SHIP.

A. Of a Sale by the Owner.

We have already considered, in a previous section, a question which might arise under almost any transfer of a ship. It is, Can such transfer be made without a written instrument? And we have seen that there in no positive rule of law requiring such an instrument, although one is universally used; and our general statutes of registration confine the character and privileges of an American ship to one so transferred. And the Statute of 1850 certainly limits within narrow bounds the validity of an oral sale.

1. OF THE IMPLIED WARRANTY IN SUCH A SALE.

豪

The rules of the common law as to evidence, agency, and warranty, applicable to sales of chattels, apply generally to the sale of a ship. For example, if a ship be built for a 273 particular purpose, under a contract, there is an implied warranty of her fitness for that purpose; and if built for use generally, there is an implied warranty that she shall be fit for such use as vessels of the kind in question are generally put to. (m) The rule of caveat emptor applies generally to the sale of a vessel after she is constructed, but with the established qualifications. (n) (x)

(m) Shepherd v. Pybus, 3 Man. & G. 868. In Cunningham v. Hall, 4 Allen, 268, it was held, that if in a contract for the construction of a vessel, it is agreed that she shall be planked with pine, and that the builder shall see "that she is just right in all respects," the latter agreement is qualified by the former, and the builder is not liable for defects which are naturally incident to pine plank, and were not known to the builder, and could not have

(x) The sale of a vessel need not be in writing. The Marion S. Harris, 85 Fed. 798, 29 C. C. A. 428. Warranty of the

been discovered by him, by the exercise of reasonable care and skill. This decision is contrary to the opinion of Mr. Justice Sprague, in the same case. Sprague, 404.

(n) In Louisiana there is an implied warranty by law against hidden defects, and those are considered hidden which cannot be discovered by simple inspection. Bulkley v. Honold, 19 How. 390.

title by the owner or part-owner of a vessel raises a primâ facie presumption that the title is not encumbered. Ins. Co. of North

Thus, if the ship be sold under material representations, made to effect the sale, they would be equivalent to warranty, when they would be so in the sale of any other chattel. So if a ship be sold "with all her faults," both extremes of construction are avoided; that is, neither can the buyer refuse the ship because of faults he did not know, nor is the seller now obliged to declare faults which he knows and the buyer cannot discover. But the seller is not permitted to say or do anything whatever to conceal her faults or prevent the buyer from discovering them. (0)

By the phrase "a ship with all her appurtenances," or "with her apparel" or "furniture" - or any equivalent phrase; and, even as we should say, by the word "ship" alone (or barque brig-schooner, etc.), whatever is then on board of or attached to her to adapt her for the voyage or adventure in which she is engaged, passes as a part of the ship to him who buys her. There have been many adjudications on this question; and it might sometimes be affected by usage, but generally the rule is not capable of a more precise definition. (p)

*274

* Fraud would of course vitiate and annul any contract of sale, or for a future sale of a ship, as it does every other contract.

2. OF THE REQUIREMENT AND EFFECT OF POSSESSION BY THE PURCHASER. A ship is a personal chattel although it is one of a peculiar character. The universal rule in regard to the sale of chattels is, that the want or delay of possession by the purchaser is a badge of fraud which may defeat the sale. This rule applies to the sale of a ship, but with some modifications, arising from the peculiar

(0) In Mellish v. Motteux, Peake, Cas. 115, when a ship was sold, "with all her faults," it was held that the seller must disclose a fault which the buyer could not possibly ascertain. But the law is now as stated in the text. Baglehole v. Walters, 3 Camp. 154; Schneider v. Heath, 3 Camp. 506. As to the effect of these words when there is also a distinct representation as to the same particular fact, see Fletcher v. Bowsher, 2 Stark. 561; Shepherd v. Kain, 5 B. & Ald. 240; Dyer v. Lewis, 7 Mass. 284; Taylor v. Bullen, 5 Exch. 779, 1 Eng. L. & Eq. 472.

(p) Ballast does not pass. Kynter's

America v. Johnson, 70 Fed. 794, 17 C. C. A. 416. A lease of a pleasure yacht for ninety-nine years amounts to a sale, and the court will judicially notice that the

case, 1 Leon. 46; Lano v. Neale, 2 Stark. 105; Burchard v. Tapscott, 3 Duer, 363. As to a boat, see Starr v. Goodwin, 2 Root, 71; Briggs v. Strange, 17 Mass. 405. The cargo of a whaling vessel does not pass by a sale of the ship's stores, and their appurtenances. Langton v. Horton, 5 Beav. 9, 23 Legal Obs. 524. As to a chronometer, see Langton v. Horton, 6 Jurist, 910; Richardson v. Clark, 15 Maine, 421, 425. The rudder and cordage purchased for a ship are part thereof. Woods v. Russell, 4 B. & Ald. 942; Wood v. Bell, 6 El. & Bl. 355, 36 Eng. L. & Eq. 148; Baker v. Gray, 17 C. B. 462, 34 Eng. L. & Eq. 387.

lessor will personally have, at its end, no interest of value. The Cygnet, 66 Fed. 349.

character and use of the chattel. For a ship may be sent to sea, go around the world, or be absent for an indefinite period, passing from port to port, as profitable engagements offer. But the owner must not in the mean time be unable to sell his ship because he is unable to deliver possession. In reference to personal chattels generally, delay in transferring the possession will not defeat the sale, if the delay be brief and explained, and justified by circumstances. The reason of this rule applies to the sale of a ship, so that, as we apprehend, no delay whatever would defeat the sale, provided, first, that the sale was a transfer on good consideration and in good faith, and second, that every practicable transfer of papers and of register was made, and such notice was given to the master and other parties as the case may require. We believe that such a sale, so attended, does not give to the purchaser a mere inchoate right to be completed by possession, but passes to the purchaser the whole property in the ship, subject to being divested by his laches in taking possession; and we do not believe that such laches would be proved merely by the fact, that a second purchaser or an attaching creditor had used means to get possession before the first purchaser. We think that, generally, if not always, the first purchaser may await her arrival in her home port. The rule of law must be, that the first purchaser is bound only to do at once * what has *275 been already indicated, and afterwards to use reasonable means and reasonable speed in taking actual possession; (x) the laches which would defeat his possession being only actual negligence. (q) It is an interesting question, how far the entry of a transfer in a custom-house record, or a registration of the purchaser as owner, is a public notice to the whole world? It is

(9) As between the parties to a sale the property in the goods sold will pass to the vendee, although the possession may remain in the vendor. But under the Statutes of 13 Elizabeth, to render the transfer valid to third parties without notice, there must be a change of possession. But where actual delivery is impossible, symbolical delivery is sufficient, provided the purchaser, as soon as he is able, takes actual possession. See Ex parte Matthews, 2 Ves. Sen. 272; Atkinson v. Mailing, T. R. 462; Hay v. Fairbairn, 2 B. & Äld. 193; Portland Bank v. Stubbs, 6 Mass. 422; Portland Bank v. Stacey, 4 Mass.

(x) Stelling v. G. W. Jones Lumber Co., 116 Fed. 261, 268.

The purchaser of shares in a vessel

661; Putnam v. Dutch, 8 Mass. 287; Lamb v. Durant, 12 Mass. 54, 56; Tucker v. Buffington, 15 Mass. 477; Badlam v. Tucker,

Pick. 389; Gardner v. Howland, 2 Pick. 599; Joy v. Sears, 9 Pick. 4; Pratt v. Parkman, 24 Pick. 42; Turner v. Coolidge, 2 Met. 350; Winsor v. McLellan, 2 Story, 492; Brinley v. Spring, 7 Greenl. 241; Morgan v. Biddle, 1 Yeates, 3; Wheeler v. Sumner, 4 Mason, 183; D'Wolf v. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co., 1 Pet. 386, 449; Ingraham v. Wheeler, 6 Conn. 277; Ricker v. Cross, 5 N. H. 570; Russell v. O'Brien, 127 Mass. 349; Dempsey v. Gardner, id. 381.

when on a voyage is liable for the expenses of the vessel, and entitled to share in the freight. The Vindobala, 13 P. D. 42.

well settled in England, that the register is only a private instrument, and not a public record,(r) and not even prima facie evidence to charge those who are not proved to be parties to it by their own act or assent, although their names appear upon it; (s) nor is the register by itself evidence in a suit between third parties of the national character of the vessel. (t) The later American cases (u) conform to the English cases on this subject, and it follows, that a party who appears on the register to have the legal title, and whom it is sought to charge on that ground, is not estopped by the register from proving that the actual beneficial ownership is in a third party, although it might be primâ facie evidence against him. (v)

* 276

*B. Of the Sale of the Ship by the Master.

A ship is not unfrequently sold by the master. If the ship be so sold by the express authority of the owner, it is simply a sale by the owner through an agent, who may as well be the master as anybody else. And the transaction is then subject to the common law of agency. Far more frequently, however, a sale of the ship by the master is made without express authority, upon an exigency, and from necessity.

In relation to such a sale two rules are quite certain. The first is, that a master has no such power excepting from necessity. (w) The second is, that a sufficient necessity gives him this power. (x)

It is extremely important to ascertain what this necessity must be; and it is as difficult as it is important. In various cases courts have used various phrases for the purpose of making this definition. It has been said that it must be "a moral neces

(r) Flower v. Young, 3 Camp. 240; Pirie v. Anderson, 4 Taunt. 652.

(s) Baldney v. Ritchie, 1 Stark. 338; M'Iver v. Humble, 16 East, 169; Fraser v. Hopkins, 2 Taunt. 5; Cooper v. South, 4 Taunt. 802.

(1) Reusse v. Meyers, 3 Camp. 475.

(u) Jones v. Pitcher, 3 Stew. & P. 135, 155; Ring v. Franklin, 2 Hall, 1; Weston v. Penniman, 1 Mason, 306; Leonard r. Huntington, 15 Johns. 298; Bixby v. Franklin Ins. Co., 8 Pick. 86; Colson v. Bonzey, 6 Greenl. 474; Lord v. Ferguson, 9 N. H. 380; Lincoln v. Wright, 23 Penn. St. 76.

(v) Howard v. Odell, 1 Allen, 85; Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204, 209, affirmed in the Exchequer Chamber, 18 C. B. 886, 36 Eng. L. & Eq. 350; Hackwood v. Lyall, 17 C. B. 124, 33

Eng. L. & Eq. 211; Mitcheson v. Oliver,
5 Ellis & B. 419, 32 Eng. L. & Eq. 219;
Brodie v. Howard, 17 C. B. 109, 33 Eng.
L. & Eq. 146; Mackenzie v. Pooley, 11
Exch. 638, 34 Eng. L. & Eq. 486.

(w) Somes v. Sugrue, Car. & P. 276; Cannan v. Meaburn, Bing. 243; Idle . Royal Exch. Ass. Co., 8 Taunt. 755; The Fanny & Elmira, Edw. Adm. 117; Pope v. Nickerson, 3 Story, 465; Robinson v. Commonwealth Ins. Co., 3 Sumner, 220; Patapsco Ins. Co. v. Southgate, 5 Pet. 604; New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387. The whole law of the sale of the ship by the master, is considered in The Amelia, 6 Wallace, 18.

(x) The Catherine, 1 Eng. L. & Eq. 679; The Glasgow, 28 Law T. Adm. 13, and cases infra.