SECTION VI. OF THE SHIP'S HUSBAND. The ship's husband is usually, but not necessarily, a partowner. He is the general agent of the owners in respect to the ship, and may be appointed, like other agents, by a written instrument or orally. Or his appointment may be inferred from his exercising the duties of his office with the knowledge and claim of lien is not on the ship, but on the proceeds of their common adventure,- in that case, a quantity of oil, with regard to which he considered the defendants as standing in the relation of copartners to each other. In Mumford v. Nicoll, the partnership was held to extend not only to the fruits of the voyage, but to the ship itself, on the ground that such was the agreement of the parties. "It is true," says Woodworth, J., "the appellant and Stillwell were tenants in common, and part-owners of the ship; and if no further connection appeared, the question would be very different from the one which arises in this case. It is admitted that here the parties were partners in the cargo and voyage; is it not equally clear they were so in the vessel? It is not the case of a vessel being chartered or earning freight eo nomine, but the vessel is to be sold, as well as the cargo; the avails of both are to be invested in such a manner as the master may consider most advantageous. This has been carried into effect. . . . . After all this, to say that in respect to the ship the appellant and Stillwell stand as tenants in common and part-owners merely, and that the ship formed no part of the partnership property, is to my mind a proposition not founded in fact." And further on he adds: "I consider these parties as commencing the business of a limited partnership in vessels, cargoes, and trading voyages. After having sent out one vessel and cargo, they proceed to a second, and then to a third. To say that each vessel and cargo is to be considered as being the subject of a distinct and separate partnership, rather than parts and parcel of the same transactions, does not appear to me warranted by the evidence." But in this last opinion the majority of the court did not concur. Spencer, C. J., in delivering their opinion, is, however, equally explicit. "I must not be supposed to overrule,” he says, "the distinction between partners in goods and merchandise and part-owners of a ship. The former are joint-tenants, and the latter are, generally speaking, tenants in common; and one cannot sell the share of the other. But I mean to say, that part-owners of a ship may, under the facts and circumstances of this case, become partners as regards the proceeds of the ship; and if they are to be so regarded, the right of one to retain the proceeds, until he is paid what he has advanced beyond his proportion, is unquestionable." In the case of The Larch, 2 Curtis, C. C. 427, it was held that a part-owner, though ship's husband, has not a lien on the share of his tenant in common for advances and disbursements. See also, Sterling v. Hanson, 1 Cal. 478. consent of the owners. They are, in general, to provide for the complete sea-worthiness of the ship; to take care of her in port; to see that she has on board all necessary and proper papers; to make contracts for freight, and collect the freight and all returns. He cannot bor. row money; nor give up the lien for freight; nor insure, nor purchase a cargo for the owners, without especial authority;" These duties are determined by usage.1 11 Bell, Comm. p. 410, 4th ed. 2 These duties are thus enumerated by Mr. Bell, 1 Comm. 410, § 428 (4th ed.); id. p. 504 (5th ed.). 1. To see to the proper outfit of the vessel, in the repairs adequate to the voyage, and in the tackle and furniture necessary for a sea-worthy ship. 2. To have a proper master, mate, and crew for the ship, so that in this respect it shall be sea-worthy. 3. To see to the due furnishing of provisions and stores, according to the necessities of the voyage. 4. To see to the regularity of all the clearances from the custom-house, and the regularity of the registry. 5. To settle the contracts, and provide for the payment of the furnishings which are requisite in the performance of those duties. 6. To enter into proper charter-parties, or engage the vessel for general freight, under the usual conditions; and to settle for freight and adjust averages with the merchant. 7. To preserve the proper certificates, surveys, and documents, in case of future disputes with insurers or freighters, and to keep regular books of the ship. See also, on this subject, Sims v. Brittain, 4 B. & Ad. 375; Owston v. Ogle, 13 East, 538; Benson v. Heathorn, 1 Young. & C. 326; Turner v. Burrows, 8 Wend. 144, 151; Gould v. Stanton, 16 Conn. 12, 23. In Benson v. Heathorn, supra, it was held by the court of chancery that for one of several managing directors of a joint-stock company for the acquisition and employment of vessels to take on himself the office of ship's husband was primâ facie a breach of trust; as his interest in the one capacity was in conflict with the duty he owed the company in the other, and that he could not in consequence be allowed to make the usual charges against them for his services as ship's husband. But in Smith v. Lay, 3 Kay & Johns. 105, it was held that the owner of a majority of shares in a ship might constitute himself managing owner, and, in that capacity, act as broker to the ship in collecting and distributing freight, there being nothing incompatible between such services and his fiduciary character as managing owner. But the court, before allowing him a commission for these services, directed an inquiry whether, according to the custom of ship-owners or otherwise, he, being managing owner, was entitled to any, and if so, what commission. Where there was an agreement between part-owners that one of them should have the exclusive management of the vessel as ship's husband, and that, after her return, a full account should be made out of the ship and her concerns, and the net profits, after all charges had been deducted, should be divided amongst the owners; it was held that this duty devolved upon the ship's husband, and that for not so accounting and dividing the profits an action lay against him by each of the part-owners. Owston v. Ogle, supra. So the agreement between the managing and other part-owners will be enforced in chancery. Darby v. Baines, 9 Hare, 369, 12 Eng. L. & Eq. 238. 81 Bell, Comm. 411, (4th ed.). 4 1 Bell, Comm. 411, (4th ed.). 5 Hewett v. Buck, 17 Maine, 147. Ogle v. Wrangham, coram Kenyon, C. J., Guildhall Sitting, H. T. 1790, Abbott but if he makes such insurance, the parties for whose benefit this insurance is made may ratify this insurance for their own benefit; and it is said that they may do this even after a loss.1 A ship's husband cannot delegate his authority; 2 and it is said that he cannot.commence and prosecute an action at law, and bind the owners to the expenses,3 but this we doubt. If a part-owner, who is also ship's husband, advances the share in the outfit of another part-owner, he may sue that partowner; but has no lien on the ship therefor.4 The ship's husband, (called, in our statutes of registration, the managing owner,) being the general agent of the other owners, binds his principals, while acting within his authority; but a creditor may waive their liability, and trust to him alone; and he will be estopped from denying this, and setting up a claim against the other owners, if he has dealt with the agent in such a way as to justify the principals in believing that he dealt with the agent on his personal credit only, and therefore has permitted them to settle their accounts with their agent in on Shipp. 107; French v. Backhouse, 5 Burr. 2727; Bell v. Humphries, 2 Stark. 345; Turner v. Burrows, 5 Wend. 541; s. c. 8 Wend. 144; Patterson v. Chalmers, 7 B. Mon. 595; Foster v. U. S. Ins. Co. 11 Pick. 85; Robinson v. Gleadow, 2 Bing. N. C. 156. And therefore, where he has insured in the name of, and for the benefit of the part-owners, he cannot recover from them the amount of the premium he has paid. Cases supra. 1 Hagedorn v. Oliverson, 2 M. & S. 485; Routh v. Thompson, 13 East, 274. And see post, chapter on insurance. But one partner of a firm which owns a vessel may effect insurance for all. Hooper v. Lusby, 4 Camp. 66. * Mr. Bell, in treating of the limitations of the powers of a ship's husband, says: "1. That, without special powers, he cannot borrow money generally for the use of the ship; though he may settle the accounts of the creditors for furnishings, or grant bills for them, which will form debts aainst the concern, whether he has funds in his hands or not, with which he might have paid them. 2. That, although he may, in the general case, levy the freight, which is, by the bill of lading, payable on the delivery of the goods, it would seem that he will not have power to take bills for the freight and give up the possession and lien over the cargo, unless it has been so settled by charter-party, or unless he has special authority to give such indulgence. 3. That, under general authority as ship's husband, he has no power to insure, or to bind the owners for premiums; this requiring a special authority. 4. That, as the power of the master to enter into contracts of affreightment is superseded in the port of the owners, so is it by the presence of the ship's husband, or the knowledge of the contracting parties, that a ship's husband has been appointed." 1 Bell, Comm. 411, § 429 (4th ed.); 1 Bell, Comm. 504, 505, (5th ed.). * Campbell v. Stein, 6 Dow, 116, 135. Helme v. Smith, 7 Bing. 709. such a way as to be damnified, if made responsible to the creditor.1 If a ship's husband be not a part-owner, then he is the common agent of all the owners, and all the owners are responsible to him in solido for his just charges, on the general principles of agency. If he be a part-owner, each is liable for his share,2 and we should say, that, if one or more became bankrupt, each of the solvent owners would be held, in equity and in admiralty, to make good his share of the insolvent's deficit, the ship's husband himself sustaining his own share of the loss by the bankruptcy and no more; agreeably to the rule of equity in cases of contribution. As to the lien of the ship's husband, it may not be quite certain. If a partner, then he has the lien of a partner; if not, he may have a lien on the proceeds of a voyage, or of the ship itself if sold, or on her documents, provided any of these have come into his actual possession. And this lien covers all his actual expenses and disbursements for the any obligation incurred for the ship. ship, and his indemnity for But it is doubtful whether the mere office of ship's husband gives him any lien.3 1 Thompson v. Finden, 4 Car. & P. 158; Muldon v. Whitlock, 1 Cow. 290; Reed v. White, 5 Esp. 122. See also, Wyatt v. Marquis of Hertford, 3 East, 147; Cheever v. Smith, 15 Johns. 276. 2 Helme v. Smith, 7 Bing. 709. See also, Brown v. Tapscott, 6 M. & W. 119. 3 It would, indeed, seem that the ship's husband as such cannot have any lien on the vessel, or the proceeds thereof. The Larch, 2 Curtis, C. C. 427; Ex parte Young, 2 Ves. & B. 242; Smith v. De Silva, Cowp. 469. In this last case, the outfit of a vessel had been conducted by De Silva, who was appointed to manage the concern as ship's husband in pursuance of an agreement made by three others at the time of their becoming owners of the ship; and De Silva settled the accounts with them, and took from one of them, who afterwards became bankrup, promissory notes payable at a future day for a part of his share of the expense. Lord Mansfield held, that the assignees of the bankrupt were entitled to receive his full share of the profits. The ship's husband, subsequently to this transaction, had acquired an interest in the ship by purchasing a part of the share of one of the other part-owners. (The time when he acquired that interest does not distinctly appear in, the report of the case; but Lord Tenterden, in his remarks on this case in Holderness v. Shackels, states it to have been subsequently to the taking of the note.) It was held that he was entitled only to a dividend under the commission for the amount of the notes. In this case, no distinction was made between the bankrupt's share in the ship, which was sold in the course of the voyage, and his share in the profits of the adventure; but it seems now settled that on the latter the ship's husband has a lien for the expenses incurred in the outfit, &c. Holderness v. Shackels, 8 B. & C. 612; Gould v. Stanton, 16 Conn. 12, 23; Macy v. De Wolf, 3 Woodb. & M. 193, 210. And there seems to be no valid -21 It is undoubtedly the duty of a ship's husband to obtain from each part-owner his share or contribution towards the payment of any general charge that he has made. And if he himself advances the share or contribution of any part-owner,' he may sue him for it.1 SECTION VII. OF THE LIENS OF PART-OWNERS, AND OF ACTIONS BY AND AGAINST There is much reason, and some authority, for giving to partowners a general lien on their common property for all their just and reasonable charges or balances of accounts against each other in relation to their common property. Indeed, there might seem to be some reason for extending such a rule to all cases of cotenancy of chattels. But there is no authority whatever for it in respect to common chattels; and in regard to cotenancy in a ship, we have no doubt that the prevailing authority of the courts, as well as the general usage of merchants, gives no such lien. In other words, part-ownership is one thing, and partnership another, whether in relation to ships or other property. These two modes of ownership may be perfectly separate and distinct; and when they are so in fact, and by the intention and understanding of the parties, both the common law and the law merchant keep them so. They may run together, absolutely, as when a ship is held as a part of the stock of a copartnership, or partially, or specially, as in the case of the joint adventures or quasi partnerships which we have already considered. And in these latter cases, the rules of the law of partnership, at least in courts of equity or admiralty, would be applied, so far as the merits and substantial justice of each case required their application. It has been adjudged, that, where two reason why this lien should not extend to the proceeds of the ship where her sale dur- ture. 1 See cases ante, p. 100, n. 2. |