wright who has possession of the ship. As long as he retains possession, he has a lien for his repairs. The distinction is, that if repairs have been made, or *necessaries *170 furnished, to a foreign ship, or to a ship in the port of a state to which she does not belong, the general marine law, following the civil law, gives the party a lien on the ship itself for its security, and he may maintain a suit in rem, in the admiralty, to enforce his right. But in respect to repairs and necessaries in the port or state to which the ship belongs, the case is governed by the municipal law of that state, and no lien is implied, unless it has been recognised by that law.b

The Ship Fortitude, C. C. U. S. for Mass. August, 1838. 3 Sumner's R. 228. The Law Reporter, vol. i. No. 5. It has been suggested in some of the cases, that any place where the vessel and the owner are not together, is to be deemed a foreign port, in respect to the power of the master, in a proper case, to subject the vessel to a lien. 5 Conn. Rep. 631. 6 Dana's Ken. Rep. 27, 28.

The General Smith, 4 Wheaton, 438. Story, J., in the case of the Brig Nestor, 1 Sumner, 74. 79. The Schooner Marion, 1 Story's R. 68. Read v. The Hull of a new Brig, id. 246. See, also, supra, vol. i. 379, 380. The question concerning the extent of the admiralty jurisdiction in the United States, in the case of service bestowed, and supplies or moneys furnished for a vessel, was elaborately and interestingly considered in Davis v. Child, in the District Court of Maine. Davies' R. 71.) It was declared, that by the general maritime law of Europe, material men had a privileged lien on a vessel, for repairs and supplies, but that in this country they had no such lien for repairs made or supplies furnished, in a port of the state to which the vessel belonged, unless allowed by the local law; though if the vessel was in the port of a state to which she did not belong, she was considered a foreign vessel, and the general maritime law applied. It was further adjudged, that the lender of money, or one whose goods were sold in the course of the voyage for the necessary wants of the vessel, had the same privilege as the material men, and the ship stood hypothecated for his security. They were considered as giving credit to the vessel and to the owner, and could maintain a libel in the admiralty in rem against the vessel, and in personam against the owner. References were made to the civil law and to the foreign maritime jurists in support of these established positions, by the learned judge; but it was further observed, that the admiralty had no direct jurisdiction over trusts, nor as to matters of accounts, merely as accounts, even in maritime affairs. The admiralty takes cognizance of accounts only as incidental to other matters within its jurisdiction. Nor could the admiralty enforce the specific performance of any agreement relative to maritime affairs. These are matters of equity jurisdiction. This declaration as to the limitations of admiralty jurisdiction is important, and clears doubts and difficulties that may have been loosely started on the point. State laws frequently make provision for the security of material men. Thus, in Illinois, boats and vessels of all descriptions, built, or repaired, or equipped in that state, are liable to be attached for debts contracted by the owner, master, supercargo or assignee, for work and supplies by mechanics, tradesmen, &c. Revised Laws of Illinois, edit.

If a material man gives personal credit, even in the case of materials furnished to a foreign ship, he loses his lien so far as to exclude him from a suit in rem, yet he will be entitled, upon petition, to be paid out of the remnants and surplus remaining in the registry.a (1) This rule is subject to the qualification that an express contract for a stipulated sum is not of itself a waiver of the lien, unless the contract contain some stipulations inconsistent with the continuance of the lien.b

In New-York, by statute, shipwrights, material men *171 and suppliers of ships, *have a lien for the amount of their debts, whether the ship be owned within the state

1833, 95. A similar law exists in Indiana, Revised Statutes of Indiana, 1838, 120; and in Pennsylvania, Purdon's Dig. 79; and in Missouri, by statute, in 1838, and in Maine, by statute of 19th February, 1839, and in England, by statute, in 1840. In Connecticut no such lien exists by their municipal law. Buddington v. Stewart, 14 Conn. R. 404. A specific lien on chattels, in the hands of a tradesman, or artificer, or bailee, for the labour and skill bestowed on them, was a part of the common law. Chapman v. Allen, Cro. C. 271. Jackson v. Cummings, 5 Meeson & Welsby, 399. M'Intyre v. Carver, 2 Watts & Serg. 392. The Supreme Court of the United States has, in the cases above cited, assumed, that the port of another state was, as respects this rule, a home port. The Court of Sessions, in Scotland, has also held, that Hull, in England, was, in respect to Scotch owners, a foreign port. Stewart v. Hall, 1 Bell's Com. 525, note. But that decision was reversed in the House of Lords, as being a point unnecessary; and the question is still open, as to what shall be deemed a home port in respect to repairs. Mr. Bell suggests that the natural course would be, to adopt the rule of the navigation laws, and to hold all British ports as home ports, because access to the custom-house title and communication with the owners are so easy, and may be so prompt. See supra, 94. Zane v. The Brig President, 4 Wash. Cir. Rep. 453.

b Peyroux v. Howard, 7 Peters' U. S. Rep. 324. In the case of the Brig Nestor, 1 Sumner, 73, it was held, that giving credit for a fixed time for supplies, did not extinguish the lien for the supplies. A lien may exist for a debt solvendum in futuro, and many instances of the kind were stated in the case. Nor does the fact that the master and owner are personally liable for the supplies, destroy the lien. In the case of The Waldo, in the District Court of Maine, 1841, it was held, that the shipper may not only sue the owners for injury to goods for the defaults of the master, but he has a lien on the ship.

• By the New-York Revised Statutes, debts contracted within the state by the master, owner, agent or consignee of every vessel, are a lien when contracted for work done or materials furnished for building, repairing, fitting or equipping the vessel, or for provisions and stores furnished, or for wharfage and expenses of keep

(1) The law as to claims upon surplus is clearly stated by Mr. Justice Conklin, in the case of The Velocity, decided in the N. Dist. of New-York, February, 1850. The claims interposed upon the surplus, if it arise under a state statute, must amount strictly to a lien. Law Reporter, June, 1850, p. 61.

or not; but the lien ceases after due security is given, or when the vessel leaves the state.a (1)

It is very clearly settled, that the master when abroad, and in the absence of the owner, may hypothecate the ship, freight and cargo, to raise money requisite for the completion of the voyage. This authority is, however, limited to objects connected with the voyage; and it must appear, in this case, as well as when he binds the owner personally, that the advances were made for repairs or supplies necessary for the voyage or safety of the ship, and that the repairs and supplies could not

ing the vessel in port. The lien is preferred to any other lien, except mariners' wages, and it ceases after twelve days from the departure of the vessel from the port at which she was when the debt was contracted, to some other port in the state, and immediately on the vessel leaving the state. (2) Every such vessel, unless she be under seizure at the time, by virtue of process from an admiralty court of the United States, or had been sold by order of such court, and the debt contracted prior to such sale, may be attached and sold to satisfy the claim, together with all other claims of the like kind, duly exhibited and verified. The proceedings under the process of attachment, the sale of the vessel, and distribution of the proceeds, are specially detailed and prescribed. N. Y. Revised Statutes, vol. ii. 493-500. In several of the other states, the lien is equally extended, by statute, to repairs made in a home port. In Louisiana, the workmen who repair vessels have a lien on them, though there be no contract in writing; but the privilege is lost if they suffer the vessel to depart. Civil Code, art. 2748.

In the case of the United States v. Wilder, 3 Sumner's R. 308, it was considered and held, that sovereignty did not necessarily imply an exemption of its property from the process and jurisdiction of the courts of justice. Liens of material-men, salvers, wages, and for average, &c., exist against government property as well as the property of individuals. There is no exception, in this respect, between public property of a commercial character, and private property, either upon general principles of justice or jure gentium. United States v. Wilder, 3 Sumner, 308.

Lord Mansfield, in Wilkins v. Carmichael, 3 Doug. 101. The Gratitudine, 3 Rob. Adm. Rep. 240. Sir Joseph Jekyl, in Watkinson v. Barnardiston, 2 P. Wms. 367. The case of the Ship Fortitude, in the C. C. U. S. for Mass., decided in August, 1838, 3 Sumner's R. 228, contains a learned confirmation of the doctrine of the maritime law, that the master of a ship has authority in a foreign port to procure supplies and repairs necessary for the safety of the ship and performance of the voyage. The necessaries, though not such as are absolutely indispensable,

(1) There is a similar statute in Mass. Supp. Rev. St. ch. 290, 1848. It is not necessary that the ship should be finished; the lien attaches so soon as the structure assumes the form of a ship. It attaches so far only as the materials have been used in the building. Phillips v. Wright, 5 Sandf. S. C. R. 342. Smith v. Steamer Eastern Rail-Road, 1 Curtis R. 253.

(2) Every departure in pursuit of some trade or business, is a departure within the statute, but it is not such if made merely to test the machinery. Rockefeller v. Thompson, 2 Sandf. (Law) R. 395. Hancox v. Dunning, 6 Hill's R. 494. Veltman v. Thompson, 3 Comst. R. 438.

be procured upon reasonable terms, or with funds within the master's control, or upon the credit of the owner, independent of the hypothecation. The master's right exists only in cases of necessity, and when he cannot otherwise procure the money, and has no funds of the owner or of his own, which he can command, and apply to the purpose. He is to act with reasonable discretion, and is not absolutely bound to apply the money of others in hand, except it belong to the owner, in preference to a resort to bottomry; and it has been sug gested by very high authority, that there may be special cases in which the master may raise money by hypothecation, even though he has his own money on board. But if he should raise money by bottomry in such a case, the admiralty will marshal the assets in favour of the shippers of the cargo, so as to bring their property last into contribution. The power of the master to charge the owners relative to the repairs and freight of the ship, does not exist when the owners are present, or when the ship is at their residence.

must be reasonably fit and proper; and if the master has not suitable funds, or cannot obtain money on the personal credit of the owner, he may raise it on bottomry. The lender is bound to exercise a reasonable diligence to ascertain that the supplies and repairs are necessary, or apparently so; and it is sufficient if he acts with good faith; and so it will be if the master acts with reasonable diligence, discretion and skill. A regular survey is prima facie evidence of the necessity of the repairs, so as to justify the master and the lender. The presumption is in favour of the master and the lender, and the onus probandi to the contrary lies on the owner who resists the bottomry bond. In that case, all the foreign civilians are examined in relation to the degree of necessity that will justify the hypothecation.

The Aurora, 1 Wheaton's Rep. 102. The Ship Fortitude, supra. The necessity that will justify the resort to a bottomry bond, is more pressing and commanding than the necessity which will justify the master in resorting to an ordinary contract for repairs.

The Ship Packet, 3 Mason's Rep. 255. The lien of the master for repairs made by his means at a foreign port, may exist without any express hypothecation. Ibid. American Insurance Company v. Carter, 3 Paige, 323. It is clearly the rule of the maritime law, supported by the foreign authorities, that the owner of the cargo, sold by the master for the necessities of the ship, has an implied lien upon the ship for his indemnity, though there be no express hypothecation. The owners are liable to pay the shippers the full amount of the proceeds of the ship appropriated by the master, within the scope of his authority, for the use of the ship. Abbott on Shipping, part 3. c. 5.

• Code de Commerce, art. 232. Ord. de la Marine, liv. 2. tit. 1. Patton & Dickson v. The Randolph, Gilpin's Rep. 456. In the case of the Ship Lavinia v. Bar

*But if only a minority of the owners are present, or *172 reside at the place, then the captain's power remains

a

good. It is incumbent upon the creditor who claims an hypothecation, to prove the actual existence of the necessity, or of an apparent necessity, of those things which gave rise to his demand, and which are reasonably fit and proper for the ship, or for the voyage, under the circumstances of the case; and he must have acted, after he has used reasonable diligence, with good faith in his inquiries, though he need not see to the actual and bona fide application of the money.b The loan must not exceed the necessity, and it must be made, and under circumstances, to afford relief. This power of the master to borrow money on bottomry, and hypothecate the ship for the payment, may exist as well at the port of destination as at any other foreign port, when the necessity for

clay, 1 Wash. Cir. Rep. 49, it was held that the captain could not raise money by bypothecation, when one of the owners resided at the port. But in a home port, the master may bind the owner for necessary and ordinary repairs and equipments under a presumed authority. Webster v. Seekamp, 4 Barnw. & Ald. 352. This is likewise the rule in the Scotch law. 1 Bell's Com. 524. It is held, that a port in a state in which the owner does not reside, is not a home port in the maritime law, as applicable to the United States; and the master of a vessel may in such a port hypothecate the vessel by a bottomry bond for necessary repairs, if the owner has no agent there, though he reside in another state. Selden v. Hendrickson, 1 Brockenbrough, 396. Perhaps, however, the distinction between foreign and home ports, in relation to the master's power in these cases, ought to rest, not in relation to the government of the country, but to the proximity or remoteness, the facility or difficulty of communication between the place where the master acts and the place where the owner resides. This was the doctrine declared in the case of Hooper v. Whitney, in the Commercial Court at New-Orleans, 1839, and it is reasonable and just; and the other rule would be very unreasonable in many cases, as, for instance, between the city of New-York and Jersey City. In Johns v. Simons, 2 Adolph. & Ellis, N. S. 425, held, that in a home as well as in a foreign port, the master has an implied authority to pledge the credit of the owner, and borrow money for the use of the ship, if the owner be absent, and no reasonable communication with him. The distance of eleven miles is not sufficient to imply the power. Arthur v. Barton, 6 M. & W. 188. S. P. Abbott on Shipping, 5th Am. edit. Boston, 146, pp. 178, 179.

Boulay Paty, Cours de Droit Com. tome ii. 271.

The Ship Fortitude, C. C. U. S. for Mass. August, 1838. Story on Agency,

sec. 122.

• Rucher v. Conyngham, 2 Peters' Adm. Rep. 295. Cupisino v. Perez, 2 Dall. Rep. 194. The Aurora, 1 Wheat. Rep. 96. Rocher v. Busher, 1 Stark. Rep. 27. Roccus, De Navibus, not. 23.