# Southworth v. Osborn

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## Dissenting Opinion

    Taney
United States Supreme Court
60 U.S. 22
Southworth v. Osborn
THIS was an appeal from the Circuit, Court of the United States for the district of Maryland.
It was a libel filed in the District Court by James W. Osborn, of the city of Baltimore, against the barque Laura, her tackle, apparel, and furniture, Osborn being the assignee of Loring & Co., merchants in Valparaiso. The barque Laura belonged to Plymouth, in Massachusetts, and the lien claimed was for supplies and repairs furnished to the vessel at Valparaiso. The Distrist Court decreed that there was due to the libellant the sum of $2,910.23, with interest from the 1st of April, 1852, which decree was affirmed in the Circuit Court.
The case was argued at the preceding term, and held under a curia advisare vult until the present.
The circumstances of the case are set forth with great particularity in the opinion of the court, and need not be repeated.
It was argued by Messrs. Brune and Brown for the appellants, and by Messrs. Wallis and J. H. Thomas for the appellee.
Some of the points made by counsel related to particular items in the accounts between the parties, which it is not deemed necessary to notice in this report. Those which referred to the points decided by the court were the following, viz:
First. That no lien on the Laura was created for the expenses paid and supplies furnished by Loring & Co., as per their account, and that Phineas Leach, on whose order or request they were paid and furnished, was not then the master of the barque, and no one but the master can create an implied lien on a vessel. Conkling's Admiralty, 59; Flanders on Shipping, 181; Flanders's Maritime Law, 174, 175, 186; Story on Agency, sects. 116 to 124; Curtis on Merchant Seamen, 76-165 to 185; The St. Jago de Cuba, 9 Wheaton, 409, 416; The Phebe, Ware, 275; Sarchet v. Sloop Davis, Crabbe, 199, 200, 201; Jones v. Blum, 2 Richardson, 475, 476, 479, 480; Thorn v. Hicks, 7 Cowen, 700; James v. Bixley, 11 Mass., 37, 38, 40, 41; Sproat v. Donnell, 20 Maine, 187, 188; Thompson v. Snow, 4 Maine, 268, 269; Mann v. Fletcher, 1 Gray, (Mass.,) 128, 129, 130; Webb v. Peirce, 1 Curtis C. C. R., 105 to 113; Reeve v. Davis, 1 Ad. and E., 312; Minturn v. Maynard, 17 Howard, 477; The Aurora, 1 Wheaton, 103; Greenway v. Turner, 4 Md., 296, 303, 304; Young v. Brander, 8 East., 12; Frazer v. Marsh, 13 ib., 238; Bogart v. The John Jay, 17 Howard, 401; Abbot on Shipping, 128; 1 Bell's Com., 506; The Jane, 1 Dod., 461; 2 Starr's Institutions, 953, 955, 962, 966; Gilpin, 543.
Second. At the time when the supplies in question were furnished, Leach had ceased to be captain, and had become a merchant, doing business in Valparaiso, in the counting-room of Loring & Co. As to the Laura, he was a wrong-doer, improperly detaining her from her owners, and using her as his own. And the facts which came to the knowledge of Loring & Co. were sufficient to have put them on the inquiry as to the legality of the right which Leach claimed to exercise over the Laura, and such an inquiry would have enabled them to ascertain that he had no such right. They had therefore constructive notice of all the facts to which such an inquiry might have led. Curtis on Seamen, 151 to 153; Carr v. Hector, 1 Curtis C. C. R., 393, and cases there cited; Ringgold v. Bryan, 3 Md. Ch. R., 493; Magruder v. Peter, 11 G. and J., 243; Baynard v. Norris, 5 Gill, 468; Oliver v. Piatt, 3 How., 479, 495; Harrison v. Vose, 9 How., 372.
The points made on the part of the appellee, so far as they were included in the decision of the court, were:
1. That whether Leach, by the terms of the contract under which he navigated the barque, was or was not to be regarded as her temporary owner at the time when the repairs and supplies in controversy were furnished; and whether the general owners were or were not bound personally by his contracts for necessaries, he was at all events master of the barque, and imposed a lien in rem, by ordering and receiving such repairs and supplies for her in a foreign part. His relation to the vessel, so far as this legal consequence of his acts is involved, was not altered by his having temporarily intrusted Easton, his mate, with her navigation, nor was the responsibility of the vessel herself to Loring & Co., for repairs and supplies, at all affected by the secret agreement between Leach and the owners, of which Loring & Co. were ignorant. The General Smith, 4 Wheaton, 438; The Brig Nestor, 1 Sumner, 78; The Schr. Tribune, 3 Sumner, 149, 150; Arthur v. Schr. Cassius, 2 Story, 92 to 94; The Barque Chusan, ib., 467; The William and Emmeline, 1 Blatchford and Howland, 71; Webb v. Pierce, 1 Curtis, 110; Arthur v. Barton, 6 Mees. and Wellsby, 142; The St. Jago de Cuba, 9 Wheaton, 409; Rich v. Coe, Cowper, 636; Reeve v. Davis, 1 Adol. and Ellis, 315; Sarchet v. Sloop Davis, Crabbe, 201; Story on Agency, sects. 36, 120; Scofield v. Potter, Davis, 397; North v. Brig Eagle, Bee's Rep., 78; L'Arina v. Brig Exchange, ib., 198; 1 Bell's Com. 525, 526; The Virgin, 8 Peters, 552, 553; Hays v. Pacific Steamboat Co., 17 Howard, 598, 599; Peyroux v. Howard, 7 Peters, 341; Bevans v. Lewis, 2 Paine's C. C. Rep., 207.
2. That even if Easton is to be regarded as master, at the time when the repairs and supplies were furnished, the fact that they were so furnished, with his knowledge and consent and under his superintendence, is sufficient to charge the barque with the usual maritime lien, notwithstanding that Leach may have ordered or directed them. Stewart v. Hall, 2 Dow, 32; Voorhees v. Steamer Eureka, 14 Missouri Rep., 56.
3. That the onus of showing a waiver of the customary maritime lien, by giving credit to Leach, rests on the appellants, and they must not only show that such credit was given, but that it was exclusive, and with the intent to forego all recourse in rem. It will be argued that there is not only an entire failure of proof to that effect on the part of the appellants, but that the circumstances of the transaction, the mode of making the charges, and the certificates required from Leach, to the validity of the accounts against the 'barque and owners,' all establish affirmatively that the credit of the vessel was especially looked to, and the usual remedy against her particularly reserved. Ex parte Bland, 2 Rose, 92; Stewart v. Hall, 2 Dow, 29, 37, 38; The Barque Chusan, 2 Story, 468; Peyroux v. Howard, 7 Peters, 344; The Brig Nestor, 1 Sumner, 75; North v. Brig Eagle, Bee, 78.
4. That even if the relation of Leach to the vessel was not such as necessarily to raise an implication of lien, from his mere contract for repairs and supplies, he had, nevertheless, the right to pledge the vessel expressly. The proof shows that he did this, and the lien, thus expressly imposed, being of a maritime nature, became, proprio vigore, enforceable in admiralty. Alexander v. Ghiselin, 5 Gill, 182; Sullivan v. Tuck, 1 Md. Chan. Rep., 62, 63; The Brig Nestor, 1 Sumner 78; The Schooner Marion, 1 Story, 73; The Hilarity, 1 Blatchford and Howland, 92, 93; Bogart v. The John Jay, 17 Howard, 401; The Brig Draco, 2 Story, 177, 178.
5. That Captain Leach was introduced to the confidence of Messrs. Loring & Co. by his position as master of the Laura, and derived his credit with them altogether from that position, that they were ignorant of his contract with his owners, and of his violation of it, and the dissatisfaction of the owners therewith; that Leach was held out to the world by the appellants as master of the Laura, with the usual right to bind her by his proper contracts; that Messrs. Loring & Co., by the repairs and supplies in controversy, not only improved the vessel as the property of the owners, but enabled her to earn freights for their benefit; that such was the result of all their dealings with Leach in regard to the barque, which were fair, liberal, and in good faith; that the misconduct and insolvency of Leach, and his failure to pay over the balance of freights, furnish no justification to the owners in repudiating the responsibilities of the barque, especially after their adoption of the very voyage for which the repairs and supplies were furnished, by the act of their agent, Weston, in receiving a part of the proceeds of the cargo, and diminishing to that extent the security of Loring & Co.
Mr. Justice CURTIS delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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