she is hired. But the right of the owner is strongly favored, and while he appoints the master and crew, his lien for freight can only be excluded by the most express and absolute terms of the charter-party or by unavoidable implication. But there is no case where the owners' lien has been sustained, unless where he has retained the possession by the appointment of

the master.

No American case was cited in which this point has come up directly in judgment. But in Kleine v. Catara, 2 Gall. 68, Mr. Justice Story expressed a decided opinion that where the charterer becomes owner for the voyage the general owner has no lien for the freight, but that the rule is confined to cases where the carrier for freight is owner for the voyage. I think it clear both in principle and authority, that where the owner parts with his possession, he parts at the same time with his lien.

This case therefore must turn wholly on the question, whether the general owners or charterers are to be considered as owners for the voyage and as having possession of the ship.

The language of the charter-party leads very clearly, if not unavoidably, to the conclusion that this was a letting of the ship. Violence must be done to several parts of it, before it can be interpreted into a contract on the part of the owners for the conveyance of goods. It is not simply a letting of the whole ship; this it is admitted would not alone be conclusive, but she is let for a voyage to be made by the charterers. The owners covenant, not that they or their master will receive and load the merchandise provided by the charterers, but that it shall be lawful for the Quincies or their agents to load her; and the charterers agree, not only to pay the charter, but also the charges of victualling and manning and all other charges, and finally after she has performed the voyage to deliver her up to the owners. It would seem that language more expressive and significant of an intention on the one side to part with the possession, and on the other to take the possession of the ship, could scarcely be found. How could the charterers perform their covenant to deliver up the possession to the owners after the voyage was completed, if the possession was not to be in them during the voyage?

The libellants rely on the fact that one of the owners is named in the charter as at present master, as a circumstance showing that it was the intention of the owners not to part with the possession. If the intention, as collected from the opera

tive parts of the instrument, was doubtful, this might be entitled to weight, and the inclination of a court to support the equitable lien of the owners would give it all the weight it could justly have. But this of itself is not sufficient to control the general tenor and whole apparent intent of the charter-party. The appointment of the master and crew by the owners is not in all cases conclusive, though they may also be paid by them. As is remarked by Lord Ellenborough, in the case of Trinity House v. Clark, the vessel may be hired and with it the services of a certain number of persons paid by the owners, and necessary to the use of the vessel. In point of fact, however, the master named in the charter-party did not go the voyage, though it was the intention of both parties that he should.

The libellants offered to introduce parol proof that the new master was appointed by the owners, but the counsel on the other side objected to the admission of this species of evidence to control the operation of the charter-party. The testimony was received, de bene esse, subject to the respondents' objection. It is unnecessary to decide on the influence which this fact ought to have, if proved, on the construction of the written agreement. The evidence in support of it is at best but loose and vague, while that by which it is met on the other side is direct and positive, that the new master was appointed by the charterers. Upon this part of the case my opinion is that the libel cannot be supported; that the owners parted with the possession of the vessel and constituted the charterers owners for the voyage, and that they have, therefore, no lien on the cargo for the charter. So much of the libel as claims a lien for the charter is dismissed. This, of course, can be no bar to any right of action which the owners may have personally against the charterers or their assignees.

This view of the question being in my opinion decisive, renders it unnecessary for me to examine other points which were made and strongly urged in the defence.

The master also claims in this libel a lien on the freight and cargo, that is, on that part of the cargo belonging to the charterers, for his own wages and as an indemnity for his liability to the crew for their wages. The decree which has just now been made on the libel of the seamen, is, I think, a sufficient answer to the claim of a lien as an indemnity. Whatever his rights may have been in this respect, it appears to me that that decree must be held at present as a full protection against his

liability to the seamen. Upon his claim for his own wages, I have found more difficulty in coming to a conclusion satisfactory to my own mind, than on any part of this case; and the opinion which I have adopted as most reasonable and equitable, I do not profess to hold free from all doubt. The books are extremely barren of authorities on this point.

It is a well settled principle of law in this country that the master has no remedy for his wages against the vessel. Whether this be a principle of the general marine law may perhaps admit of doubt. By the law of France the master is allowed the same privilege against the ship for his wages, and in case of misfortune against the savings from the wreck, as the seamen. This is the provision of the Ordinance de la Marine, L. 3. tit. 4, arts. 8 and 21; 1 Valin, 701 and 752, and this provision is continued in the Napoleon code. Code de Commerce, 352. I cannot see on what principle of justice or policy the master is to be excluded from all benefit from the savings from a wreck, while the right of the crew is admitted. But the general principle is too firmly established in this country to be called in question. 1 Paine's Rep. 73, The Grand Turk; 1 Peters's Ad. R. 228, The New Jersey. One reason assigned for making this distinction against the master is, that he contracts on the personal responsibility of the owners. But this, instead of a reason, is manifestly little more than another mode of stating the principle. Another and a more satisfactory reason given is, that he is the proper person to receive the earnings of the ship and pay them over to those to whom they of right belong; 1 Peters Ad. Rep. 229; and that he has a lien on this freight for his own wages. 1 Paine's R. 76. He is entrusted with the control and management of the vessel as the confidential agent of the owners, and is often, in the course of the voyage, called upon to incur responsibilities and make advances in the ship's service for their benefit. It is a necessity which arises from the nature of his employment. In cases of imperious and overruling necessity he may hypothecate the ship and even the cargo; but it is very questionable at least whether he must not first exhaust his own means and credit before he can resort to this extraordinary and onerous mode of relief. The Hero; 2 Dodson, Adm. R. 139, Holt's Law of Shipping, 342-3; Jacobson's Sea Laws, 354. Besides these incidental responsibilities, he is, according to universal usage, by the very terms of the contract, made di

rectly answerable to the seamen for their wages; and this is in conformity with a rule of the marine law as old as the law itself. On what principle could this rule have been so universally established, but this plain and sensible reason, that the captain is entitled to receive the freight, the common fund out of which not only wages but every other ordinary charge on the voyage is to be paid.

In the case of Goodridge v. Lord, 10 Mass. Rep. 487, it is said by the court that the captain may retain freight in his hands to pay the seamen's wages; and in that of Lane v. Penniman, 4 Mass. Rep. 92, it is ruled, Chief Justice Parsons giving the opinion of the court, that he has, a lien on the freight. for the necessary disbursements which he makes during the voyage, which takes precedence of the owner's title to it. This decision is fully supported by that in White v. Baring, 4 Esp. N. P. Cas. 22. The captain had rendered himself liable for the amount of some repairs which became necessary in the course of the voyage, and the owners had become bankrupt before its termination. The shippers, after notice had been given them by the master of his demand against the freight, paid it over to the assignees of the owners. The master brought a suit against them for the amount of his liabilities, and also for his primage, which was purely a personal demand due to him as master. Lord Kenyon said that the captain 'having contracted and rendered himself personally liable for articles furnished the ship, he thereby acquired a lien on the goods as well as freight, that his lien is co-extensive with his liabilities to the ship's creditors, and of course the payment made by the defendants was made in their own wrong.' Lord Kenyon, in the short abstract of his opinion, avoids touching on the claim of primage, and in the brief report of the case it does not appear whether this was or was not included in the verdict.

I have no doubt of the soundness of the doctrine of these cases. Why does not his prior right for his wages rest on as good ground as for his liabilities or disbursements? The money is as much due to him in one case as the other, and the credit has in each grown out of the same service, a service which has contributed to create the fund against which his claim is made. I can see no sufficient reason for making a distinction between them. His wages are as much a charge on the earnings of the ship as those of the seamen, or as the advances which he makes for incidental expenses. What re

mains, after these are discharged, constitute the net freight of the owners. Besides, if the reason given for excluding the master from admiralty process against the ship, that he has a lien on the freight, means any thing, it means that he is a privileged creditor against the freight. A lien ex vi termini imports a privilege. If it is not this, it is nothing. Upon the whole, finding that he has a lien on the freight for his disbursements, and seeing no reason in law or justice for making a distinction between this claim and that for his wages, I do not feel the authority for introducing a distinction against him which I do not find established.

But in point of fact the freight on the goods taken on freight had been attached before the filing of this libel, by the seamen, and a decree has passed in their favor which will absorb the whole fund. This necessarily brings up the other question, whether the master's lien for his wages extends to the merchandise of the owners which he has brought home. Without touching this as a general question, I put my opinion on the peculiar facts of the present case.

The charterers here are the owners for the voyage. The master is hired by them, and is in their employment. He fulfils his part of the contract and performs the voyage successfully, but when he arrives in safety, bringing with him his whole earnings for seven months' service, he finds that his employers, two months before the service is completed, without making any satisfactory provision for his wages, had assigned their whole property, including what was in his hands, for the benefit of their general creditors. It was in effect not only an assignment of all his wages earned up to the time of the assignment, but of all the additional wages which would accrue to the completion of the voyage. He is named, it is true, as a creditor in the assignment, but his claim is postponed to several more favored creditors to a large amount; in the meantime the fruits of his service are taken out of his hands, and he is left to pick up a satisfaction from the remnants of an insolvent

estate.

This is certainly a case of very strong equity, but it is admitted that the books contain no decision in point to sustain the master's claim. In the argument it was compared to the lien of a factor for his commissions, and to the vendor's right of stoppage in transitu on the insolvency of the purchaser. It has some points of analogy and some points of difference