sion. If the ship be sold while abroad, or at sea, a delivery of the grand bill of sale, and other documents, transfers the property, as in the case of the delivery of the key of a warehouse. It is all the delivery that the circumstances of the case admit of; and it is giving to the buyer or mortgagee, the ability to take actual possession, and which he must do as soon as possible *on the return of the ship. If *133 the buyer takes possession of a ship sold while at sea, within a reasonable time after her arrival in port, his title will prevail against that of a subsequent purchaser or attaching creditor. But the buyer takes subject to all incumbrances, and to all lawful contracts made by the master respecting the employment and hypothecation of the ship prior to notice of the transfer.c

The English cases speak of the transfer of a ship at sea by the assignment of the grand bill of sale, and that expression is understood to refer to the instrument whereby the ship was originally transferred from the builder to the owner, or first purchaser. But the American cases speak simply of a bill of sale, and usually refer to the instrument or transfer from the last proprietor while the vessel is at sea, and which is sufficient to pass the property, if accompanied by the act of taking possession as soon as conveniently may be after the vessel arrives in port.d

(2.) Who is liable as owner.

There is no doubt that the owner is personally liable for

Addis v. Baker, 1 Anst. Rep. 222. Abbott on Shipping, 5th Am. edit. 1846, p. 34.

bEx parte Matthews, 2 Vesey, 272. Hall v. Gurney, Cooke's B. L. 231. Mair v. Glennie, 4 Maule & Selw. 240. Joy v. Sears, 9 Pick. 4. Abbott on Shipping, 5th Am. edit. 1846, p. 37..

Hay v. Fairburn, 2 Barnw. & Ald. Portland Bank v. Stubbs, 6 Mass. Badlam v. Tucker, 1 Pick. Rep. privileged, and liens on the ship,

• Mair v. Glennie, 4 Maule & Selw. 240. 193. Atkinson v. Maling, 2 Term Rep. 462. Rep. 422. Putnam v. Dutch, 8 Mass. Rep. 287. 396. As to debts which are, by the French law, see infra, 168.

Portland Bank v. Stacy, 4 Mass. Rep. 663. Wheeler v. Sumner, 4 Mason, 183. A bill of sale of a ship, with her apparel, appurtenances, &c., includes all things that are necessary and incidental to the working of the ship. Abbott on Shipping, pp. 7, 8, 5th Am. edit. 1846.

necessaries furnished, and repairs made to a ship, by order of the master; and the great point for discussion is, who is to be regarded as contracting party and owner, pro hac vice.b The ownership in relation to this subject is not determined by the register, and the true question, in matters relative to repairs, is, "upon whose credit was the work done?" Nor

is a regular bill of sale of the property essential to ex*134 empt the former owner *from responsibility for supplies furnished. But where the contract of sale is made, and possession delivered, the circumstance that the naked legal title remains in the vendor for his security, does not render him liable, as owner, on the contracts, or for the conduct of the master.d¡(1)

It has been a disputed question, whether the mortgagee of a ship, before he takes possession, be liable to the burdens and entitled to the benefits belonging to the owner. In the case of Chinney v. Blackbourne,e it was held by the K. B. that the mortgagor in such a case, and not the mortgagee, was to be deemed owner, and entitled to the freight, and liable for the repairs and other expenses. The same decision was made by the C. B. in Jackson v. Vernon.

But Lord Kenyon, in

⚫ Webster v. Seekamp, 4 Barnw. & Ald. 352. The owner is, of course, liable, unless the credit is given to others. So, the captain is liable if he orders the repairs, unless the credit is given to the owner. Essery v. Cobb, 5 Carr. & Payne, 358. Cox v. Reid, 1 ibid. 602. For necessary supplies to a vessel, the owner, master and charterer are all liable; and the remedy against each remains good, unless credit be given to one exclusively. Henshaw v. Rollins, 5 Miller's Louis. Rep. 335. The owner, who has the more legal title, but not the control and management of the vessel, or the right to receive her freight and earnings, is not responsible for supplies and necessaries. Duff v. Bayard, 4 Watts & Serg. 240.

Briggs v. Williamson, 7 Barnw. & Cress. 30.

• Lord Tenterden, in Jennings v. Griffiths, Ryan & Moody, 43. Reeve v. Davis, 1 Adolph. & Ellis, 312.

d Wendover v. Hogeboom, 7 Johns. Rep. 308. Leonard v. Huntington, 15 ibid. 298. Thorn v. Hicks, 7 Cowen's Rep. 697.

• 1 H. Blacks. Rep. 117. note.

1 H. Blacks. Rep. 114.

(1) If the purchaser of a vessel has a right to control the vessel and receive her earnings, he will be liable for supplies, though the vendor had the possession, and actually received the earninys. Flanders v. Merritt, 3 Barb. S. C. Rep. 201. The person owning the beneficial interest, though not the legal title, will be liable. Strader v. Lambeth, 7 B. Mon. R. 589. If the master hires the vessel on shares, agreeing to victual, man and navigate her, he is owner during the contract, and the general owner is not responsible for supplies. Webb v. Pierce, 1 Curtis R. 104.

с

Westerdell v. Dale, entertained a different opinion, and he considered the mortgagee, whether in or out of possession, to be the owner, and entitled to the freight, and bound for the expenses of the ship. The weight of our American decisions has been in favour of the position, that a mortgagee of a ship out of possession is not liable for repairs or necessaries procured on the order of the master, and not upon the particular credit of the mortgagee, who was not in the receipt of the freight; though the rule is otherwise when the mortgagee is in possession, and the vessel employed in his service. (1) The case of Fisher v. Willing, has a strong bearing *in *135 favour of the decisions which go to charge the mortgagor; for it was held that a mortgagee of a ship at sea did not, merely by delivery of the documents, acquire such a possession as to be liable to the master for wages accruing after the date of the mortgage. The contract was with the mortgagor, and there was no privity between the master and the mortgagee, before possession taken, sufficient to raise an assumption. A similar decision was made by Ch. J. Abbott in Martin v. Paxton, and cited in the Pennsylvania case. The case of The Mohawk Insurance Company v. Eckford, decided in the Court of Common Pleas in the city of NewYork, in 1828, and the cases of Thorn v. Hicks and Lord v. Ferguson,d show that the rule is considered to be settled in New-York and New-Hampshire, that a mortgagee out of possession is not liable for services rendered, or necessaries furnished to a vessel, on the credit of the mortgagor, or other per. son having the equitable title. The question seems to resolve itself into the inquiry, whether the circumstances afford evi

■ 7 Term Rep. 306. In Dean v. M'Ghie, 4 Bingham, 45. S. C., 12 B. Moore, 185, it was held, that on a mortgage of a ship at sea, and possession taken, the accruing freight passed to the mortgagee, as incident to the ship.

M'Intyre v. Scott, 8 Johns. Rep. 158. Champlin v. Butler, 18 ibid. 169. Ring v. Franklin, 2 Hall's N. Y. Rep. 1. Tucker v. Buffington, 15 Mass. Rep. 477. Colson v. Bonzey, 6 Greenleaf, 474. Winslow v. Tarbox, 18 Maine R. 132. Cutler v. Thurlo, 20 id. 213. Miln v. Spinola, 4 Hill's N. Y. Rep. 177.

• 8 Serg. & Rawle, 118. A mortgagor in possession of a vessel may pledge the freight. Keith v. Murdoch, Wheat. Dig. 586, pl. 11.

7 Cowen's Rep. 697. Ring v. Franklin, 2 Hall, 1. S. P. 9 N. H. R. 380.

(1) Hesketh v. Stevens, 7 Barb. S. C. R. 488.

dence of a contract, express or implied, as regards mortgagees not in possession. If the claimant dealt with the mortgagor solely as owner, he cannot look to the mortgagee. To whom was the credit given, seems to be the true ground on which the question ought to stand. In a case before Lord Ellenborough, in 1816,b he ruled, that a mortgagee not in possession, and not known to the plaintiff, was not liable for stores supplied by the captain's order. The weight of authority is decidedly in favor of the mortgagee, who has not taken possession; and if he has left the possession and control of the ship to the mortgagor, he will not be liable to the master for wages or disbursements, or to any other person for repairs and necessaries done or supplied by the master's order, where

the mortgagor has been treated as owner. If, how*136 ever, there has been no such dealing with *the mort

gagor in the character of owner, but the credit has been given to the person who may be owner, it is a point still remaining open for discussion, whether the liability will attach to the beneficial or to the legal owner. The principle of the decision in Trewhellav. Rowe was, that a vendee of a ship, whatever equitable title might exist in him, was not liable for supplies furnished before the legal title was conveyed to him, and registered in the manner prescribed by the registry acts, and when he was unknown to the tradesman who supplied the materials.d

There are analogous cases which throw light upon this sub

a Baker v. Buckle, 7 J. B Moore, 349.

Twentyman v. Hart, 1 Starkie's Rep. 336.

11 East's Rep. 435.

a The same principle governed the decision in Harrington v. Fry, 2 Bingham, 179; and by the English statutes of 4 Geo. IV. c. 41, and of 6 Geo. IV. c. 110, on a transfer of a ship, or any interest therein, by mortgage or assignment in trust by way of security for a debt, the entry in the book of registry is so to state it, and the mortgagee or trustee shall not, by reason thereof, be deemed owner, nor the mortgagor cease to be owner, except so far as to render the security available. Under these statutes, the interest of the mortgagor and mortgagee are more distinctly severed than they were before, and a mortgagor does not cease to be owner. Irving v. Richardson, 2 Barnw. & Adolph. 193. No act of bankruptcy, committed by the mortgagor after the registry of the mortgage or assignment, to affect the security. This provision is continued in the consolidated registry statute of 3 and 4 William IV. c. 55. sec. 42, 43.

ject. Thus, in Young v. Brander,a the legal title remained for a month after the sale in the vendor upon the face of the register, because the vendee had omitted to comply with the forms prescribed by the registry acts. But it was held, that he was not liable during that interval for repairs ordered by the captain, under the direction of the vendee, and who had no authority, express or implied, from the legal owner. The vendee ordered the repairs in his own right, and there was no privity of interest between him and the legal owner, and the credit was actually given to the vendee. So, again, the regular registered owner of a ship was held not to be liable for supplies furnished by order of the charterer, who had chartered the ship at a certain rent for a number of voyages. The owner had divested himself, in that case, of all control and possession of the vessel during the existence of the charter-party, and he had no right under *it, to ap- *137 point the captain. The question in these cases is, whether the owner, by reason of the charter-party, has divested himself of the ownership pro hac vice, and whether there has been any direct contract between the parties, varying the responsibility.

In Valejo v. Wheeler, the court proceeded on the ground that the charterer was owner pro hac vice, inasmuch as he appointed the master. The subject was much discussed in M'Intire v. Brown,d and it was held, that where, by the terms of the charter-party, the ship-owner appoints the master and crew, and retains the management and control of the vessel, the charter was to be considered as a covenant to carry goods. But where the whole management is given to the freighter, it is more properly a hiring of the vessel for the voyage, and in such case the hirer is to be deemed owner for the voyage. In Hallet v. The Columbian Insurance Company, the owner of the vessel, by the charter-party, let the

• East's Rep. 10.

▸ Frazer v. Marsh, 13 East's Rep. 238. Registered ownership is prima facie evidence of liability for the repairs of a ship, but it may be rebutted by showing that the credit was given elsewhere. Cox v. Reid, 1 Ryan & Moody, 199.