In Michigan, there is no lien for supplies furnished while a vessel is building. (d) 1

If repairs are made or goods supplied on a credit, it has been said that the credit prevents a lien. (e) But this is not necessarily the case, nor would it be true unless the credit were in its nature inconsistent with the lien, or destructive of it. (f) If a laborer employed generally, by one engaged on a vessel, works sometimes on the vessel and sometimes elsewhere, he has no lien for that part of his work given to the vessel. (g)

The lien, whether given by maritime law or by a State statute, may be enforced against the vessel, although she is owned by government; and in the same way as if she were owned by a private citizen. (h)

Formerly, all who had a lien on a ship by a State statute might, on the authority of many decisions, enforce that lien in the admiralty courts sitting in that district. Recently, however, by a rule of the Supreme Court, the right of action in case of supplies, repairs, or other necessaries furnished to a domestic ship, has been confined to a proceeding in personam. (i)2 It may * 264 be said generally that this rule of the Supreme

225.

(d) Lawson v. Higgins, 1 Mann. Mich.

(e) Zane v. The Brig President, 4 Wash. C. C. 453.

(f) Peyroux v. Howard, 7 Pet. 324, 344; The Brig Nestor, 1 Sumner, 73, 80; Remnants in Court, Olcott, Adm. 382; The Kearsarge, Ware, 2d ed. 546; The Antarctic, Sprague, 206; The Sam Slick, Sprague, 289.

(9) The Calisto, Daveis, 29; s. c. nom. Read v. Hull of a New Brig, 1 Story, 244. (h) The Revenue Cutter No. 1, U. S. D. C., Ohio, 21 Law Reporter, 281. In Briggs v. A Light Boat, Sup. Jud. Ct. Mass. 1863, it was held, where a light boat was built under a contract with the government, the title not to vest until the vessel was completed and accepted, that a lien was created while building, and the government took her subject to the lien.

*

Court,

(i) The 12th Admiralty rule, which went into effect May 1, 1859, provides that "In all suits by material men for supplies, or repairs, or other necessaries for a foreign ship, or for a ship in a foreign port, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in personam, but not in rem, shall apply to cases of domestic ships, for supplies, repairs, or other necessaries." 21 How. p. iv. In Maguire v. Card, 21 How. 251, the court, after mentioning the new rule, said: "We have determined to leave all these liens depending upon State laws, and not arising out of the maritime contract, to be enforced by the State courts." See also, for the reasons and objects of the new rule, The Steamer St. Lawrence, 1 Black,

522.

1 Most of the States now have statutory liens. References to the various statutes may be found in 14 Am. & Eng. Encyc. of Law, 456.

2 In 1872 the Supreme Court of the United States, by another change in its admiralty rules, again allowed the enforcement in rem of statutory liens for maritime contracts in the Federal courts. The Lottawanna, 21 Wall. 558; Wishart v. The Jos. Nixon, 43 Fed. Rep. 926. The fluctuating course of the United States Supreme Court on this question is reviewed in Hayford . Cunningham, 72 Me. 128.

But a State legislature, by creating a lien on vessels for contracts not in their nature maritime (as a contract for construction), cannot thereby confer jurisdiction on the Federal courts. The J. C. Rich, 46 Fed. Rep. 136, and cases cited.

which gives a lien to material men for supplies or repairs, or other necessaries, by its very language, confines this proceeding to material men. And it has been held, as an effect of this limitation, that where the law of a State gave this lien to a wharfinger, yet, because he was not a material man, admiralty could not enforce his lien. (j)

It must be true, however, that admiralty courts, in applying statutory provisions and enforcing liens created by them, would be governed by the terms of the statute; (k) but although the case might not come within their jurisdiction except by force of the statute, in construing its terms where they were at all doubtful, they would be influenced by the principles of admiralty jurisprudence, which are always those of equity. (l)

It may be convenient to add, that a person who lends money for the use of a foreign ship has the same lien in admiralty as a material man. (m) But stevedores, (n) or persons employed to see to a vessel's safety, ventilation, etc., (o) or to scrape her bottom preparatory for coppering, (p) or for other similar labor, or having charges against a vessel for advertising, (9) or for services as ship-broker in making or drawing contracts, have no lien. (r) 1

As the word necessary" constantly occurs in determining this lien, it may be said that admiralty regards it as necessary in the sense which suffices for this lien, if the repairs or

(j) Russel v. The Asa R. Swift, 1 Newb. Adm. 553.

(k) The General Smith, 4 Wheat. 438; The Bark Chusan, 2 Story, 455, 462; The Robert Fulton, 1 Paine, 620, 626; The Calisto, Daveis, 29, 33.

449.

(4) See The Richard Busteed, Sprague,

(m) Davis v. Child, Daveis, 71. See also The Sophie, 1 W. Rob. 368; The Emily Souder, 17 Wall, 666; The Tangier, 2 Low. 7; The J. A Brown, 2 Low. 464.

(n) The Amstel, Blatchf. & H. Adm. 215; The Bark Joseph Cunard, Olcott Adm. 120; M'Dermott v. The S. G. Owens, 1 Wallace, C. C. 370; Cox v. Murray,

1 There is a maritime lien for towage. The John Cuttrell, 9 Fed. Rep. 777; The Murphy Tugs, 28 Fed. Rep. 429; The Mystic, 30 Fed. Rep. 73; The Alabama, 30 Fed. Rep. 207. But not at the home port. Dalzell v. Kaine, 31 Fed. Rep. 746. There is also a lien for wharfage. Ex parte Easton, 95 U. S. 68; The Dora Mathews, 31 Fed. Rep. 619; The Mary K. Campbell, 31 Fed. Rep. 840. See The Murphy Tugs, 28 Fed. Rep. 429. A pilot has a lien for his services. The Talisman, 23 Fed. Rep. 111; The Edith Godden, 25 Fed. Rep. 511; The Harriet S. Jackson, 32 Fed. Rep. 110; The Pirate, 32 Fed. Rep. 486; The Atlas, 42 Fed. Rep. 793. There is no lien for unpaid insurance premiums. The Daisy Day, 40 Fed. Rep. 603.

*265 supplies were such as a careful or prudent owner would make or supply to his own vessel. (s)

C. - Of Owners.

Any person may become an owner of a ship in the same way as of any other chattel, unless some peculiar means or process is required by law. It is undoubtedly true, that ships are always or almost always sold by a written instrument. But we cannot admit that this usage, however ancient, general, or reasonable, has the force of law. And we apprehend that the Registration Acts of this country only deny the privileges of an American ship to a vessel transferred without writing or not registered, leaving the question of the validity of the sale for all other purposes to be determined by the common law, or the law-merchant. (t) But the act of 1850, ch. 27, (u) provides, that "no bill of sale, mortgage, hypothecation, or other conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person, other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless said bill of sale, mortgage, hypothecation, or conveyance, be recorded in the office of the collector of the customs, where such vessel is registered or enrolled." Possibly questions may be raised as to the construction of this statute, (v) or even as to its constitutionality. (w) We are however disposed to hold it as now established, and as limiting the effect of a sale of a vessel, *266 without writing or registry, to the seller, his heirs and

(s) The Alexander, 1 W. Rob. 346. (t) Weston v. Penniman, 1 Mason, 317; The Oriole, Sprague, 31; Taggard v. Loring, 16 Mass. 336, 340; Bixby v. Franklin Ins. Co. 8 Pick. 86; Weaver v. The S. G. Owens, 1 Wallace C. C. 359; Barnes v. Taylor, 31 Me. 329; Mitchell v. Taylor, 32 id. 434; Leonard v. Hunting ton, 15 Johns. 298.

(u) 9 U. S. Stats. at Large, 440; Rev. Stat. § 4192.

(v) See Fort Pitt Bank r. Williams, 43 La. An. 418; Haug v. Third Bank, 77 Mich. 474. The question naturally arises at what custom-house transfers are to be recorded. In Potter v. Irish, 10 Gray, 416, the court held, that it is necessary to record the conveyance at the custom-house where the vessel is at the time registered; but this has been controverted by Mr. Justice Clifford, in the case of Blanchard

v. The Martha Washington, 1 Clifford, 463. This case holds that all conveyances must be recorded at the home port of the vessel. In this view Mr. Justice Clifford is sustained by the S. C. of the U. S. in White's Bank v. Smith, 7 Wallace, 646. The act of 1850 does not apply to charterparties, Hill v. The Golden Gate, 1 Newb. Adm. 308; or to the lien of a material man on a vessel, Marsh v. Brig Minnie, U.S. D. C. S. Car., 6 Am. Law Reg. 238. And it applies only to vessels which are registered, licensed, or enrolled. Veazie v. Somerby, 5 Allen, 280.

(w) The act has been held to be constitutional in the Brig Martha Washington, U. S. C. C. Maine, 25 Law Reporter, 22. All State statutes requiring mortgages of vessels to be made in certain places, would therefore be considered as nugatory. See Sinnot v. Davenport, 22 How. 227.

devisees, and persons having actual notice of ing such a conveyance valid as to them. (x) operation of law is not avoided by any of our

D. Of Part-Owners.

1. WHO ARE PART-OWNERS.

the sale; but leavAnd a transfer by registry acts.

A part-owner of a ship is one who owns a definite part or proportion of the whole ship; and of this part his ownership is exclusive. It follows, therefore, that part-owners of a ship do not thereby become partners. And if a ship is owned by a partnership as part of the stock of the firm, the partners do not become thereby part-owners; because each partner owns the whole partnership stock, subject to the rights of the other partowners, and no partner has an exclusive right in any part or portion of the firm stock. But ships may be and often are held as partnership property, and then all the laws and incidents of partnership attach to them. (y) And the evidence of partnership as to a ship, would seem to be governed by the same rules of law and the same principles which apply to other property.

Part-owners-whether they are so by building a ship together, or purchasing it together (in certain proportions), or subsequently purchasing parts are always tenants in common; and if either dies, his share goes not to the survivors, but to his own representatives. (2) If the proportions in which they hold the ship are not defined by some instrument or bargain, the law will regard them as owners of equal shares. (a)

2. OF THE POWERS AND DUTIES OF PART-OWNERS.

* 267

Any part-owner may sell his share to whom he will, and for what he will.

(r) Cape Fear Steamboat Co. v. Conner, 3 Rich. 335.

(y) Doddington v. Hallet, Ves. Sen. 497; Wright v. Hunter, 1 East, 20; Mumford v. Nicoll, 20 Johns. 611; Harding v. Foxcroft, 6 Greenl. 76; Phillips v. Purington, 15 Me. 425: Patterson v. Chalmers, 7 B. Mon. 595.

(z) Graves v. Sawcer, T. Raym. 15; Ex parte Young, 2 Ves. & B. 242, 2 Rose 78, n.; Ex parte Harrison, 2 Rose, 76; Owston v. Ogle, 13 East, 538; Helme v. Smith, 7 Bing. 709; Rex v. Collector of the Customs, 2 M. & S. 223; Green v. Briggs, 6 Hare, 395; Bulkley v. Barber, 6 Exch. 164, 1 Eng. L. & Eq. 506; Mumford

v. Nicoll, 20 Johns. 611; Thorndike v. De Wolf, 6 Pick. 120; French v. Price, 24 Pick. 13; Jackson v. Robinson, 3 Mason, 138; Hopkins v. Forsyth, 14 Pa. 38; The New Orleans, 106 U. S. 13; Coursin's Appeal, 79 Pa. 220; Paynter v. Paynter, 7 Phila. 336.

(a) Alexander v. Dowie, 1 H. & N. 152, 37 Eng. L. & Eq. 551; Glover v. Austin, 6 Pick. 221; Ohl v. Eagle Ins. Co. 4 Mason, 172. See Whiton v. Spring, 74 N. Y. 169. But the act of 1850, c. 27, § 5, 9 U. S. Stats. at Large, 441, provides that the part or proportion of the vessel belonging to each owner shall be inserted in the register of enrolment.

It has been doubted whether part-owners could displace a master who was also a part-owner, without good and adequate reason, which should be, generally at least, incapacity or wrong-doing. (b) But it seems now settled that a majority of part-owners, and more certainly a majority in interest and in number, may control and employ a ship at their pleasure, (c) and displace any master or other officer, whether part-owner or not. It is not uncommon to

see advertised for sale " a master's interest," or "a sailing interest." It would seem, however, that no such interest was known at law. (cc)

If a majority do not agree, or if a majority injure or disregard the interests of a minority, a court of admiralty will interfere. In general if a majority of part-owners will not employ a ship at all, without what seems to the court adequate reason for her idleness, the court will give the control and management of her to a minority, requiring adequate security for a just regard to the safety of the ship, her proper employment, and the interests of the majority. (d) So, if the majority wish to employ her in a way to which the minority object, such security will be required, if the court deem it just and reasonable. (e) In all such cases, we consider it as now established in this country, that a court of admiralty has sufficient authority to prevent a ship from lying useless, and to provide for her return in safety, for her proper employment, for a fair adjustment of freight, and for due protection of all the interests of all parties. (f)1

*268

1

* What power one part-owner has to bind his copartners as to the management of the vessel, the manning, provi

(b) See The New Draper, 4 Rob. Adm. 290. In the case of a foreign ship, as a general thing, the court will not interfere, on application of the other part-owners, to dispossess a captain, who is also an owner. The Johan & Siegmund, Edw. Adm. 242. This power was, however, exercised where a decree of a tribunal of the country to which the vessel belonged, exercising admiralty jurisdiction, was produced, directing the master to deliver up the vessel. The Sea Reuter, 1 Dods. 22.

(c) Card v. Hope, 2 B. & C. 661; Gould v. Stanton, 16 Conn. 12.

(cc) Ward v. Ruckman, 36 N. Y. 26. (d) There is a dictum to this effect in Steamboat Orleans v. Phœbus, 11 Pet. 175.

See, for a full discussion of this question, 2 Parsons, Mar. Law, 555.

(e) Willings v. Blight, 2 Pet. Adm. 288; The Marengo, Sprague, 506; The Apollo, 1 Hagg. Adm. 306; Gould e. Stanton, 16 Conn. 12.

(f) In The Vincennes, decided by Mr. Justice Ware, in 1851, but not reported, there were three part-owners, one owning a moiety, and the other two a quarter each. The owner of the moiety was in possession, and was ship's husband, but the parties disagreed as to the voyage, and on application of the two part-owners of one moiety, the vessel was ordered to be sold. See also Davis v. Brig Seneca, 18 Am. Jurist, 486, Gilpin, 10; Skrine v. Sloop Hope, Bee, 2.

If a part-owner notifies the managing owner that he dissents from the employment of the vessel he will not be liable for the expenses of a subsequent voyage, nor can he share in the profits. Scull v. Raymond, 18 Fed. Rep. 547; Swain v. Knapp, 34 Minn. 232.