owned only a moiety. We should expect that our courts would decide any question of this kind which came before them, only as its merits, and all its merits, required.2 Doubtless, if a majority concur in desiring any especial employment, this would be a strong prima facie reason in its favor. But if it were made clear to the court that they wished to oppress the minority, or that the employment they proposed was certainly and in a high degree inexpedient, because unsafe and foolish, we know not why they should be bound to give her to the majority for any such purpose. And if the majority would employ her in this way, or not at all, we know no reason why she should not be either sold or given to the minority, on their security.

It has been said that the majority employing a ship against the will of the minority, must give security for her safe return.3 The

after the statute of 3 & 4 Vict. c. 65 (7th Aug. 1840), and it seems to oppose Abbott, Kent, and Story, at least as to English practice. But it will be noticed that the court say they would send the parties to another tribunal; probably, to a court of chancery. In this country, would not the admiralty take the place of the equity court? It exercises many of the functions of a court of equity. And it would be inequitable for one moiety to be subjected to a serious loss from the obstinacy of the other moiety.

Upon the question of possession between dissentient part-owners, two principles appear to meet and conflict; namely, the rights of the majority, and public policy. If a moiety is divided against a moiety, the law can give possession to either only on public grounds. And if a court of admiralty can interfere, it is only on the consideration pro bono publico; and that may have lost something of its force, since the present abundant supply of ships. Formerly ships were scarcer, and it was in some measure an infringement on the rights of the mercantile public, a breach of a duty, if not of a kind of implied contract, to let a ship lie still; but now there are, generally at least, more ships than there is business for.

There may be a difference, too, between taking the possession from one moiety to give it to the other, and compelling the moiety already in possession to give bonds. For the latter there may be reasons which do not apply to the former.

278.

The Egyptienne, 1 Hagg. Adm. 346; The Elizabeth & Jane, 1 W. Rob.

See Coverdale v. The North America, Crabbe, 420, and the case of The Vincennes, decided by Ware, J., but not reported, cited post, near the end of c. x.

In The Marengo, 1 Sprague, 506, the owner of one fourth of a whale ship, before any preparation had been made for a new voyage, gave notice to the owners of the major part that he would not pay anything towards outfits or expenses for a new voyage, but did not say in terms that he should dissent from the voyage, or apply for security for the return of his quarter part, until the vessel was nearly ready for sea; but it did not appear that the major part-owners

common bond taken in England from the majority goes no further; and it has been intimated in this country, that the recusant partowner should have no freight, because he makes no advances for outfit, but may have his vessel secured to him, because, as he makes no profit, he should incur no loss. This may be sound doctrine in all of those cases in which the dissentient minority are distinctly in fault. But there may be an honest difference of opinion; and although the majority in that case ought to prevail, we see no reason why the minority should not be paid for the use of their property; and we should not expect that our courts would hold themselves bound by any rule in admiralty, to confine the security to the return of the ship in all cases. The authorities, however, seem to be opposed to any payment for the use of the ship.2

had been misled or subjected to any loss by such delay. Held, that the libellant was entitled to security by stipulation for the return of the vessel, in double the value of his interest, and that such return should be to the port of New Bedford where all of the owners resided. The libellant requested that his part of the outfits of the preceding voyage which remained on board should not be included in the estimate of the value of his part of the vessel, and this request was granted.

1 See Willings v. Blight, 2 Pet. Adm. 288.

The question, whether the bond should secure the freight as well as the vessel, is one of importance; and we find no decisive authority to determine it. In The Apollo, 1 Hagg. Adm. 306, peremptory payment of the bond was decreed. "Upon the question of jurisdiction, it is not unimportant to observe that the court has repeatedly gone the length of taking those stipulations in favor of a dissentient copartner, and upon his application that a security may be given for the safe return of the vessel from the voyage to which he dissents, or otherwise for the estimated value of his share." Nothing is said about freight. Nor do we know that any admiralty court has declared that the bond may be taken for the freight. The estimated profits of the voyage are a difficult subject of computation, and that is the objection Abbott (p. 102) takes to the remedy proposed by the common-law courts for the use of the ship by the minority, without their consent. The reason given that "as he bears no expense, he shall have no profit," is hardly logical or sufficient, for from that it would seem, that his right to profits depended on his expenditures for fitting out; but the interest of the money he has invested in the ship is not considered. In Gould v. Stanton, 16 Conn. 12, it was held that until a dissentient part-owner applies to the admiralty court, he is liable for his proportion of the expenses already incurred in fitting the vessel out, but after he seeks the protection of the court he is not liable for any expenses, nor entitled to any earnings.

In The Marengo, U. S. D. C. Mass., 1866, Lowell, J., 1 Am. Law Review, 88, a part-owner who had dissented from the employment of a vessel on a voyage, and

In England, it is held that a British part-owner of a foreign ship, cannot arrest the vessel for the purpose of obtaining bail to be given for her safe return to her home port. Dr. Lushington, however, intimated that if a dissenting part-owner had such a remedy, by the law of the country to which the vessel belonged, he would take the matter into consideration.1

The fact that a part-owner has not complied with the acts of Congress, in delivering up the old license and obtaining a new one on becoming an owner, does not prevent his applying to the court for security for the safety of the vessel on a voyage not approved by him, such omission not being for purposes of fraud or concealment.2

Of the power of the court of admiralty to decree a sale on a question between part-owners, we shall speak when we consider the subject of Sale by order of Admiralty. A decree of a court of admiralty, awarding possession to a person, does not have the effect of a sale, and pass the vessel free from all prior incumbrances.

We have already considered at some length the right of the had taken a stipulation for her safe return, after the voyage had ended prosperously applied to the court to recover compensation for the use of the libellant's part of the vessel, and the value of his part of such of the outfits remaining from the preceding voyage, which had been used on the voyage in question. The libellant argued that the law which authorized another person to use his property ought to require payment to be made for that use; but the court held that the libellant was not entitled to recover for the use of his part of the vessel, and that a court of admiralty had no jurisdiction over a claim for the use of the outfits. Lowell, J., said: "It would be more strictly accurate to say, that the law allowed the respondents to use their own property, or to dictate the use of the common property. The libellant's property happened to be, from its own nature, inseparable from theirs; but it may have been as great a hardship for them to be obliged to use it, involving, as such use must, an outlay and risk beyond their proper proportion, as it was for the libellant to have the vessel go upon a voyage which he did not approve. In the average of cases it is equally probable that the majority would be embarrassed by the necessity of equipping and providing the whole vessel, as that the minority would be embarrassed by the necessity of providing for their part."

1 The Graff Arthur Bernstorff, 2 Spinks. Adm. 30.

2 Fox v. The Lodemia, Crabbe, 271.

See post, c. x.

The Granite State, 1 Sprague, 277.

5 See ante, Vol. I. p. 95, n. 2. In Richardson v. Mellish, 3 Bing. 229, an action was brought to recover damages for the breach of an agreement. The facts were

majority to dispossess a master who is a part-owner, and refer to what we have there said. It has been held in England, that if the owner of the greater part of the vessel brings a cause of possession against the master, who is owner of the remaining part, the master will not be allowed to retain possession upon an offer of security to the amount of his co-owner's interest.1

Under the English statute of 1854, which gives the court of admiralty power to remove the master of a vessel, if the court is satisfied that the removal is necessary, it has been held that the removal is necessary if the master has committed a fraudulent as follows. The plaintiff was in command of a vessel then under charter to the East India Company, of which the defendant was owner of twelve sixteenths. The defendant proposed to the plaintiff, and the plaintiff assented, to resign the command in favor of the defendant's nephew upon receiving in exchange the command of another ship, owned by the defendant, and then chartered for one voyage. If the company acceded to the exchange, it was agreed that in case the nephew died or resigned before the expiration of the four voyages for which the ship was chartered, the plaintiff should succeed him. As a further inducement to the plaintiff to resign the command, the defendant undertook to procure a beneficial alteration in the destination of the second vessel. The exchange was approved by the company, and was made. The plaintiff became bankrupt on his return from his first voyage, and the nephew died in the course of his second voyage. The defendant, having refused to appoint the plaintiff to succeed the nephew, was sued. After a verdict for the plaintiff, the court held, on motion for a new trial, that after verdict there was a sufficient consideration for the defendant's agreement; that the agreement was not illegal; and that the jury might give damages for the loss of the two remaining voyages, though the second had not been accomplished at the time of the action. Best, C. J., said that there was no fraud as against the East India Company, for they were apprised of the whole transaction, and in respect to fraud on the co-owners, he said: "It appears on the record that Mr. Mellish is sole owner, and therefore he could commit no fraud on co-owners. . . . . . . . Is there any fraud in the proceeding? Sift it from the top to the bottom, and what does it amount to? Nothing more than this: that a man who has the sole interest in one ship, and is about to procure an interest in another, makes a bargain with the captain of the ship to exchange it for another. Is there any fraud in that? I say, no. I am aware of the difference between a legal and a moral fraud. I see no legal fraud. I see nothing in public policy against this sort of exchange being effected. It appears to me there would be nothing corrupt - nothing improper in it; if not, there is nothing to arrest the judgment on the ground of illegality." This language is somewhat ambiguous, as the defendant was not the sole owner in both vessels, and the case seems to go to the extent that such a transaction is not a fraud as against co-owners. See also the remarks of the court on the case of Card v. Hope, 2 B. & C. 661. 1 The Kent, Lush. Adm. 495.

breach of trust against the owners, such as making a payment of £5 on ship's account, and charging a larger sum as paid, and the court has the power to make this removal on the application of one part-owner, though another who is ship's husband objects.1

SECTION II.

OF CONTRACTS OF AFFREIGHTMENT.

Whether goods are carried in a vessel on freight or by charter, the same rules of law are applicable in admiralty, unless the charterer hires the vessel wholly, and mans, equips, and sails her himself. In this case he is his own carrier, and the owner of the vessel has no lien on the cargo for the money due from the hirer, but the charterer himself, being quasi owner, has a lien on the goods of other persons, if he carries them in a ship he has thus hired.2

The first question we shall consider is, as to the jurisdiction of admiralty over questions of freight; then the application of the rules of law to these questions in civil cases; then cases which arise under prize and capture.

In treating of the law of shipping, it was stated that the shipowner has a lien on the cargo for the freight due in carrying it. This is the rule at common law as well as in admiralty, but the latter court, by its suits and processes in rem, has a more prompt. and effectual jurisdiction in all cases of lien. Originally, the admiralty courts acted principally and possibly altogether in personam, and even now it is admitted that its action in rem is subor

1 The Royalist, Brow. & L. Adm. 46. The part-owner making the application was owner of one half the vessel. The master was owner of one quarter, and the ship's husband was owner of the other quarter.

2 The two kinds of charter-parties are spoken of in our chapter on the law of shipping. See ante, Vol. I. p. 278.

* In The Sch. Boston, 1 Sumner, 328, 341, it is said: "The proceeding need not indeed be in rem, for if the thing has come to the possession or use or benefit of the owner, a compensation may be equally decreed upon a libel in personam. So is the doctrine in The Hope and The Trelawney, and it is founded in the very nature of the admiralty jurisdiction, which primarily acted in personam; and now acts in rem, only as auxiliary to its general authority." In The Hope, 3 Rob. Adm. 215, the objection to calling the owners to answer personally in a suit for