The Portland daily press., 1866-09-13
Imuortaut Mercantile Decision.

fortlanu. Inc llDel aueged that the steamer
was foreign vessel, that the supplies were
necessary and were furnished by the libellants,
at the request Of the owners and on the cred
it of the boat.
Charles Spear of Boston appeared in behalf
OF himself and the other owners of the ooat'
and in his answer admitted that the boat was
owned in Boston, and alleged that the steani-
er was laid up for the winter In rorli''nu'
without any master or crew and that he spear
was present in Portland experimenting cne
repairs on the boat, having the general care
and management of the boat, ana ordered
from the hbellants these supplies, that this
was well known to the libelants, ar that the
articles were obtained on the credit of the
owners and not on the credit of the boat. The
material facts are stated in the opinion of the
Court. as.saa
Fox J-It is claimed that lien does not ex-
list AGAINST the vessel for these supplies, first,
because. the managing owner was present and
procured the supplies; and secondly because,
1t does not appear that a necessity existed for
the supplies and that they could not be OBJ
tanned only by a credit upon the vessel.
The vessel was enrolled in Boston and all
the owners resided in Massachusetts, at the
time the supplies were furnished, and there
can be no doubt, that within the ordinary
meaning of the phrase, as understood by
Courts of Admiralty, in the United States,
this steamer must be deemed foreign vess
when in the port of Portland subject to all
the burdens and liabilities of foreign vessels,
in matters of this nature.
By the law of England, the master OF ship
has not power to create lien on the vessel, as
security for the payment of repairs and sup
plies obtained in q foreign port, save by q bot
tomry bond, but such is not the maritime
| law of the United States, as recognized by the
Supreme Court of the United States-it has
| been decided by that tribunal, that the master
of a vessel, of the United States, being in
foreign port has power, in case OF necessity,
| to hypothecate the vessel and also to bind
himself and the owners personally, for repairs
and supplies, and he does so without any ex-
press hypothecation, when in a case of neces-
sity, he obtains them on the credit of the
vessel without bottomry bond, and this
understand to be the ancient and general
maritime law of the commercial world.
Each party admits that these supplies were
procured by Gray the painter upon the order
| OF Spear, and the ibellants contend, that at
chat time, there being no ether master of the
steamer, Spear must be understood as acting
4 III Tic CdpdClly VI uldSbcE, III OIuCIluS tucSc
| supplies, and thereby bound the vessel for
them. 1t therefore becomes highly important
| to determine what was done by Spear, and
| whether in what he did, he acted as master.
| 1t appears, that the steamer at this time,
was laid up for the winter season in Portland,
| that her former master and crew were dis
charged, that Spear was one of the owners
| resident in Boston, that he came to Portland,
was here during the greater part OF the time
thp uaSSnl xva nplorUOino
ing the general charge and superintendent
Of them, none of the other owners being pres
emit; that the larger portion of these expendi-
lures upon the boat were made before the
1rst OF March, when she commenced herltrips
anew to the Penobscot, under the CHI r g of a
master other than Spear, that she afterwards
| was in the employ OF the government, and
| bout the third of May, returned to Portland,
when as tile answer alleges, the master lett
| her and went home, and Spear came down
| again to Portland, took charge OF the vessel,
| directing further repairs, and ordering from
the llbeliants, such further material as was
necessary. In so conducting, cannot con-
Ider that Spear, was actin as master of the
vessel he was rather the ships husband or
managing owner, and all that he did can much
better be referred to that capacity, rather than
to that ola master. When the duties of
master were to be discharged, when the YES
Del q HldStcT, anu was ready IOr her
voyage, MASTER is then engaged he assumes
the command, and acts as master OF tine boat
anil 1t is thought expedient to make further
repairs, then the master rolires and Spear as
managing owner returns to POrtlani, takes
NE charge and direction OF such repairs. All
these circumstances compel me to conclude
that in ordering these supplies, 1 must view
spear not as master but as an owner, and
tnat at the time it was understood BY the IL
oellants that the boat was without master,
chat Spear was one of the owners, superin-
lending the repairs. In fact the libel alleges,
Yhe supplies were ordered by the owuers.i 4 ~
Is maritime Lien implied for necessary
supplies, furnished a vessel in foreign port,
by the direction of managing owne., there
present experimenting her repairs and order
ing the supplies? .D"' ls
In the st. Jago, 0 Wheaton, page 416, Mr..
Justice johnson speaking for the SUPREME
Court OF the United States, OF claims of ma
oerial men, says, 1T is not in the power of
any one but the ship-master, NOT THE OWNER
HIMSELF, to give these implied liens on the
vessel, and in every case the last lien given will
,upersede the precedins-the vessel must get
on, this is the consideration that controls ev-
cry other For these purposes the law mari
lime attaches the power of pledging or sub
jecting the vessel to material men, to the Office
u ship-master and considers the owner as vest
ing him with those powers, by the mere act OF
constituting him ship-master. The necessi-
lies OF commerce require that when remote
from his owner, he should be able to subject
ais owners property to that liability without
which it is reasonable to suppose, he will not
Oe able to pursue his owners interests. But
when the owner is present, the reason ceases
and the contract is inferred to be with the
owner himself on his ordinary responsibility,
without view to the vessel as the fund from
which compensation is to be derived"
Chief Justice fancy, in the case of the sloop
Davis, referred to in CRADLES r. 200, Sarchet
VS.. sloOp Davis, recognized the same principle.
that no implied lien was created by the GEN.
eral maritime law, when the owner was pres
emit with his vessel in foreign port, and
makes the contract for the supplies. He saws
that in the case of the ST. Jago, it was de-
cided, that the lien given by the general m ari-
time law, is confined to contracts made by the
ship-master in foreign port, In THE ABSENCE
OF THE OWNER AND THAT NO LIEN Is M
Piled WHEN THE OWNER HIMSELF Is PRES
ENT AND MAKES THE CONTRACT and that in
such case, the work aud materials are presum-
ed to be furnished not on the credit of the YES.
sci but on that of the owner.n 90.
In 10 Howard, 20, Thomas ct al. We. Osborn.
Mr.. Justice Curtis, speaking for the majority
OF the Supreme Court, says, at is true this
implied lien does not e1ist IN place ao1ere the
says: "But if the owner is present and the sup
plies are furnished to him, it is equally wen
established that the credit is presumed to have
been given to him personally and no lien on
the vessel is implied" VI n
Conkling, vol !, page so, states this princi-
pie as follows: "To guard against possibie mis-
apprehension, it is proper to state, that no lien
is ever implied, from contracts made by the
owner in person. 1t is only those contracts
which the master enters into, in his character
ct master, that specifically bind the ship or af-
the creditor. When the owner Is present and
acting in his own behalf as such, the contract
is presumed to be made with him on his ordi-
nary responsibility, without view to the YES
derived" - - w We
have endeavored to ascertain why lien
is implied ON the vessel when the supplies
are obtained by, the ship-master in a foreign
port, and not implied when ordered by the
L. c.Al