Year: 1868

Ap4>e$tUseS xWo VseesoV
Appeal from the Criminal Court for the district of
Massachusetts,.


Mr.. Justice Davis delivered the opinion of the
court:-The Amele, on her voyage nom Surinam to
Boston encountered perils of the sea- and Obliged
to seek the harbor Of Port Prince Hayti, and was
sold there at public auction by the master and pur
chased by Riviere, the claimant. The owner OF the
cargo, because OF its nondeiivery filed the LIBEL and


insists that the sale of the vessel was not ustifabe
and passed no title to Riviere, the claimant, and
even II the sale was proper under the circumstances
that Riviere took the title subject to all existing iens
The principle Of maritime law which governs this
controversy is too well settled for dispute Although
the power Of the master to sell his ship in any case
without the express authority of the owner was for
merly denied yet it Is the received doctrine of
the courts in this country, az well as in England,
that the has the right to sell in Of actual
necessity. We are not called upon to discuss the
for the rule to cite authorities in it's sup
port because it has repeatedly received the sanction
of this court. The Patapsco Insurance Company vs.
Southgate, Peters, $40; the Sarah Ann, Is Peters,
400; Post ct al. vs. Jones ct al, 10 Howard, 1871
From the very nature, OF the case (the court
the master to SELL The injury to the vessel may
be so great and the necessity 80 urgent as to
justify sale; and under such circumstances, the
master becomes the agent OF oil concerned and is re-
quired to act for their benefit. The sale OF q ship
becomes necessity within the meaning OF the COM
merca law when nothing better can be done for the
owner or those concerned in the adventure. II the
master on his part has an honest purpose to serve
those who are Interested in ship and cargo, and
him to SELL then he is justified. AS the power Is


liable to abuse 1t must be exercised in the most per
iures to watch with great care the conduct OF the
master. In order to justify the sale good faith In
making It and the necessity TOT IL must Dota concur
show their concurrence. The question Is not
whether it is expedient to break up voyage and
sell the ship but whether there was legal necessity
to do it. Ii this can be shown the master is justified
otherwise not. And this necessity is question OF
fact to be determined IN each case 6y the circum
to which the property is exposed. II the master can
within reasonable time consult the owners he is
portuniy to decide whether in their Judgment sale
Is necessary; and he should never sell when in port
with disabled snip w,tnSqS Wy , nrst 4 calling TO MS h ad
are competent to advise, after full survey Of the
vessel and her injuries, whether she had better be


does not depend on their recommendation,


yet, If they advise sale and he acts on their


court or jury reviewing the proceedings strong evi-


dence in justification Of his conduct The facts Of


this bring It within these well settled principles


was Justified in terminating his voyage and selling


his ship. When the voyage began the ship was sea-


worthy and well provided but after se had been at


violent storm, and with great difficulty was taken


into the harDor of Port au Prince. The master at


once entered his protest before the Dutch Consul


General (the ship being owned in Amsterdam). who


caused three surveys to be made OF the condition OF


the vessel No action was taken on the first survey


but the result OF the second was to incur an ex-


pense Of one thousand Spanish dollars In partial


repairs decided by IL to be practicable, and recon-
mended In order that the ship should be put In o
proper condition to proceed her voyage to Boston,


In making these partial repairs one OF the sides ofthe
vessel was uncovered, disclosing additional damages
of serious character not previously ascertanable
which caused the Consul General to order third
survey. This third and final survey was thorough
and complete The men who made 1t were captains
of vessels, temporarily detained in port, and the
agents Of American and English underwriters. No
persons could be more competent to advise, or from
the nature OF their employment, better acquainted
with the structure Of vessels and the cost OF repair
ing them. Their report is full and explicit. After
able to find; their belief that additional damages
would be found when the vessel was further
uncovered; the absence OF! of docks competent
and their opinion that the cost Of the re-
pairs would exceed the value Of the vessel,


hey advised that the voyage be broken up, the vessel
advice the master, who WAS bound to look to the In
terest OF all parties concerned In the adventure had
proceeded TO repair his vessel he would have been
cupable. Being In distant port with disabled
vessel seeking solution OF tae dlicniues surround
no direct means OF communicating with them, and
having good reason to believe that the copper OF his
vessel was displaced and that worms would work
her destruction what course 80 proper TO pursue as
TO obtain the advice ''of that body Of men," whO
by the usage OF trade have been immemorally re-
sorted to on such occasions" Gordon VS.. Mass
Ins. Co., Pick, 26D No prudent man under the cir
cumstances would have failed to follow their advice
and the state OF things as proved in this case, i'm
posed on the master moral necessity to sell his
vessel and reship his cargo. But 1t Is sad the fact
that the vessel was repaired by the purchaser and
sent to Boston dsproyes his necessity. Not so. 1t
may tend TO prove the surveyors were MISTAKEN but
does not AFFECT the question OF the duty OF the master
to follow their advice when given In such strong
terms, and with no evidence before him that 1t was
erroneous. But In fact the surveyors did not err In
their conclusion that the vessel was not worth the
cost OF rqpalrs, as the amount In the registry
Of the court for which the vessel was sold
in Boston viii fail to reimburse the claimnat
and repairing her. II is insisted even IL the crcunl
stances were such TO justify the sale and pass
valid title to the yendee ne neverthelsss TOOK te
were sound It would materially AFFECT tho interests
Of commerce, for, as exgences are constantly arls


Ing requiring the master TO terminate the voyage as
hopeless and sell the property in his charge for the
highest price he can get would any man OF common
prudence buy ship sold under sucn
about which, in the great majority OF cases ne could
not have the opportunity OF learning anythngY The
ground on which the right to sell rests Is, that In
case of disaster the MASTER from necessity, becomes
the agent OF all tine parties in interest," and IS bound
to do the best for them ne can "a @ sne , avn ~ ~
dispose Of the property for their nenent. - mnen '
nothing better can be done for the interest OF those
necessfy and az the master acts for ALL and Is tile
agent Of a he sells wel for the Lien holder as the
Uniform current OF the decisions, Is to shve some
thing for the benefit q all ~ and thus
nj law stand in place OF the ship. IL the ship can
only be sold in case Of necessity, where the good
faith OF the master Is unquestioned, and II 1t be the
OF the sale to something for the parties
In interest, does not sound policy require clean
nronertv may bring rs full valuep II the sale
Is Is impeached the law imposes imposes on the pur-
sifv for IT, aud this he Is in q posi-
ticn TO do, because the facts which constitute
he legal necessity are within his reach; but he can
not know. nor be expeceed to know in the exercise
o reasonable diligence, the nature and extent Of the


ens that have attached 10 the vessel. Without pur-
the subject further we are clearly OF the opinion
where the ship is lawfully sold, the purchaser takes
an obsoute title dlvested OF all ens and that the
lens are transferred to the proceeds OF the Ship
which, In the sense OF the admiralty law, becomes
he substitute for the ship The title OF Riviere the
claimant was questioned at the bar, because he did
lot prove that the master executed TO him bill
II sale OF the vessel. We do not see clearly how
mis- ouestion Is presented In this record for there