In foreign countries, attempts have been made to evade the effects of these restrictions, by procuring a sentence of con ter's authority to sell, is the inquiry, whether the owners or insurers, when they are not distant from the scene of stranding, can, by the earliest use of the ordinary means to convey intelligence, be informed of the situation of the vessel in time to direct the master before she will probably be lost. If there is a probability of loss, and it is made more hazardous by every day's delay, the master may then act promptly, to save something for the benefit of all concerned, though but little may be saved. There is no way of doing so more effectually than by exposing the vessel to sale; by which the enterprise of such men is brought into competition as are accustomed to encounter such risks, and who know, from experience, how to estimate the probable profits and losses of such adventures." A ship insured at Boston in December for one year, and owned partly in Boston, but chiefly in New Orleans, on her voyage from Boston to New Orleans struck on a shoal on the coast of Florida, on the 18th of February following, but on the assistance of wreckers she was got off, and according to a previous stipulation, insisted on by the wreckers, she proceeded to Key West, in order to have the salvage adjusted either by arbitration or by a judgment of a Court of Admiralty, the nearest Court being 300 miles distant. She arrived at Key West on February 23d. She did not leak, and she might have remained at Key West in safety, until notice of the disaster should have been sent to Boston. Notice was sent to the part-owners at New Orleans, and one of them arrived at Key West on March 17th. A survey was then had, and the vessel was condemned as unworthy of being repaired, and on the 21st she was sold. The expense of repairing her at Key West would have exceeded fifty per cent. on her value, but at New Orleans or Boston, (to either of which ports she might have proceeded, and in fact, after the sale, she did proceed to Boston with the same master,) the expense would have been less than fifty per cent. It was held, that the sale was not necessary, and that the insurers were not affected by it. Hall v. Franklin Insurance Company, 9 Pick. 466. A vessel insured at Boston, while on a voyage to Mobile, struck on Carysford reef, and was injured to the amount of more than half her value, but was got off and arrived in safety at Mobile. While she was lying at a wharf in that port, a survey was held upon her, and the surveyors having recommended a sale, she was sold by the master, who was also a part-owner and one of the insured, without consulting the insurers or the agent of the owners at Boston. It was held, that the master, as such, was not justified, under these circumstances, in selling the vessel. Pierce v. Ocean Insurance Company, 18 Pick. 83. The fact that the vessel is got off, delivered of her peril and repaired by the purchasers, after the sale, is certainly a strong circumstance against the necessity of the sale. But it is by no means decisive; for cases of this sort are not to be judged of by the event. A vessel may be apparently in a desperate situation, and yet by some lucky accident, or unexpected concurrence of fortunate circumstances, she may be delivered from her peril. The state of things at the time of the sale is to be regarded; the position and exposure of the vessel; the season of the year; the dangers from storms; the expense of any attempts to get her out of the danger; the probable chances of success; and the necessity of immediate action on the part of the master, one way or the other. The Brig Sarah Ann, 2 Sumner, 215, 216; Idle v. Royal Ex. Ass. Co. 8 Taunt, 755; Fontaine v. Phoenix Ins. Co. 11 John. 295. See also Hall v. Franklin Ins. Co. 9 Pick. 466. Mr. Justice Story seems to intimate a distinction between a case of sale where the master and owner only are concerned, and a case where the controversy is between the owner and underwriter. See The Schooner Tilton, 5 Mason, 476; but I am not aware that this intimation has been acted on in any case. See to the same point, Idle v. Royal Ex. Ass. Co. 8 Taunt. 755. The necessity which authorizes the master to sell the hull of a vessel, authorizes him to sell the rigging and sails, which he may have stripped from her after unsuccess demnation and sale of a ship as unfit for service, from some Court or judge having jurisdiction in maritime affairs. In France, such †condemnation is required, and is [† 20] deemed sufficient to protect the title of a bona fide purchaser, even when obtained by the fraud of the master, against whom the owners must seek their remedy (b). But no such jurisdiction (c) is known to the law of England (d). The condemnations, as they are called, sometimes made abroad, upon the survey and report of captains or carpenters, have no binding force in this country, but the fact, upon which they profess to be founded, may be again litigated by the parties interested in disputing it. (1) (b) Pardessus Cours de droit Commercial, vol. 3, tit. "De l'acquisition des navi res." *(c) Lord Stowell in the case of the Fanny and Elmira, above cited, speaks of an appeal by the master to such a Court for authority to sell in terms of approval. "There is a very convenient practice, which obtains in the Courts of Vice-Admiralty in the West Indies, where the fact of distress being proved, the transaction is not left to the master, but a sale is ordered under the superintendence of the Court itself." And again, in the case of the Warrior,* a cause of possession, in which he refused to restore to the real owner, a ship, which, after ineffectual attempts to obtain money for the necessary repairs, was sold by the master under the order of the Vice-Admiralty Court of the Mauritius, the same learned judge observed; "What is the master to do? Common sense, as well as the law, point out that he should, in This was the first place, apply to the agent of the owner, which it appears he did. If the agent cannot or will not assist, and if himself and his owner are without any other friends who are ready to come forward and furnish him with the necessary supplies, what can be done better than make application to the Court of Admiralty?" But the convenience of this practice may well be doubted from Valin's experience of its effects: "Un capitaine ou maitre ne s'avise pas de vendre son navire, mais quand il veut s'en défaire, il trouve aisément le secret de le faire condamner, du moins y en a-t-il assez d'exemples pour qu'on puisse penser sans jugement téméraire qui'l y a eu des navires condamnés qui ne meritaient pas de l'être, mais quand il n'y a pas de preuve de la fripponneire il n'y a pas moyen de la punir."-Valin. Comm. sur l'Ordonnance, liv. 2, tit. 1, art. 19. (d) See, however, the 3 & 4 Wm. 4, c. 55, s. 8. * Dodson's Ad. Rep. 288. ful efforts to relieve her, or when the vessel, in his own judgment, and that of those competent to form an opinion, and to advise, cannot be extricated from her peril. New England Insurance Co. v. The Sarah Ann, 13 Peters, 387. In respect to the right of the master to sell the cargo, the same rule was adopted in the cause of Smith v. Martin, 6 Binn. 262, as the text states to have been asserted in Maeburn v. Leckie. See also Arthur v. Schooner Cassius, 2 Story, C. C. 81; Jordan v. Warren Ins. Co. 2 Sumner, 342; Post, 366, 367, 368, 371, and notes. If a ship be wrecked in a foreign port, and abandoned, and afterwards sold by the government of that country according to the laws thereof, the purchaser acquires a good title thereby against all the world. Grant . McLochlin, 4 John. 34. See The Schooner Tilton, 5 Mason, 465, 477. > (1) This proceeding, which is condemned by the courts of commor law, is a voluntary proceeding, instituted by the master himself on petition for a sale, founded on a survey, proof and report of the unnavigable and irreparable condition of the vessel. successfully done at a trial before the late Lord Ellenborough, in a case (e) of which it will be proper to detail the circumstances, as there is too much reason to fear that similar practices not unfrequently take place. The owners of the ship Grace sent her to Jamaica, under the command of one Cook, with a cargo consigned principally to M'Anuff and Cunningham, and with orders to follow their directions in respect to his loading back, and to apply to them for money for the use of the ship. On the 23d of February, 1802, af- [† 21] ter the discharge of her cargo, the ship was driven on shore at Rio Bueno, in Jamaica, in a gale of wind. (e) Hayman and Others v. Moulton and Others, Sitt. at Guildhall, Nov. 1, 1803. The There is a report of this case in 5 Esp. It is essentially the act of the master, under the auxiliary sanction of the court, founded merely upon a survey of the ship, to see whether she be seaworthy; and it is to be distinguished from the case in which the admiralty has regular jurisdiction of the subject, by a proceeding in rem, founded on some adverse claim. 3 Kent (5th ed.), 131, 132. In the case of the Schooner Tilton, 5 Mason, 465, it was decided, that the admiralty has jurisdiction in case of a wrecked ship, to decree a sale upon application of the master, but such sale is not conclusive upon the owner or upon third persons. See The Warrior, 2 Dodson, 288, 293, 295. To what is suggested in the case of Reid v. Darby, 10 East, 143, as to the want of jurisdiction in the admiralty courts to decree the sale of a ship in a case of necessity, upon the application of the master, Mr. Justice Story, in the case of The Schooner Tilton, above cited, remarks, that he for one cannot assent. "I agree," he adds, "that in such a case the decree of sale is not conclusive on the owner, or on third persons, because it is made upon the application of the master, and not in an adverse proceeding. But I cannot but consider it as strictly within the admiralty jurisdiction. It is prima facie evidence of a rightful exercise of authority, but no more." "It does not appear to me, that Lord Stowell, with all his habitual caution in entertaining jurisdiction, has considered such a sale an absolute excess of judicial authority. Looking at the language used by him in the cases of the Fanny and Elmira, Edw. Rep. 117, and the Warrior, 2 Dodson, 288, 293, 295, I should draw the conclusion, that but for the controlling authority of the courts, which he was bound to obey, he would have affirmed the jurisdiction." "The doctrine of the Supreme Court of the United States, as I gather it from the case of Janney v. The Columbian Ins. Co., 10 Wheat. 411, 418, is, that it is properly a part of the admiralty jurisdiction. Mr. Justice Johnson there said, in delivering the opinion of the Court; 'In other parts of the world, it is very generally exercised, as an incident to the admiralty power, and the admiralty jurisdiction under our system, can only be exercised under the laws of the United States ;' and he intimated a clear opinion, that Congress might regulate the subject, either as one appertaining to trade and commerce, or within the admiralty jurisdiction." 5 Mason, 474, 475. See 2 Phill. Ins. (2d. ed.) 315; Idle v. Roy. Ex. Ass. Co. 3 Moore, 115. The report of surveyors in a foreign port, that a vessel, having sustained sea-damage is not worth repairing, is not conclusive as to the fact. But the report is presumed to be made in good faith and fairly, unless the contrary appears. Gordon v. Mass. F. & M. Ins. Co. 2 Pick. 264, 265. See also, The Ship Fortitude, 3 Sumner, 228, as to the effect of a regular survey in Evidence, touching the propriety of repairs and borrowing on bottomry. See Hall v. Franklin Ins. Co. 9 Pick. 477. > master applied to Cunningham, who resided at Montego Bay, for advice in this emergency, and on the 27th February, made the usual protest. On the same day, the deputy naval officer at Montego Bay directed his warrant to four masters of ships, desiring them to examine the Grace, and make a return upon oath of her state and condition. They reported that they had been on board, and found the ship settled in a sand bank four feet, with a bank of sand between her and the sea of twice her length, and not more than two feet water on the sand bank ; and that they were therefore unanimously of opinion, from the great expense that would be incurred in attempting to get her afloat, and the little chance of succeeding therein, that it would be most for the advantage of the underwriters, and all others concerned, to sell the ship as she then lay, with all her materials, to the best bidder. Cunningham advertised the ship for sale by auction, as a wreck; he acted as auctioneer, and charged his commission, and she was sold on the 15th of March, to one Dunn, for 12107. Jamaica currency, about 8647. sterling. One of the surveyors attended, and bid at the sale. Dunn sold the vessel to Robert Moulton, a brother of one of the defendants, who, upon his oath of ownership, and surrender of her register, obtained a new register at Jamaica, and transferred her there to the three defendants, one of whom was one of the four masters by whom she had been surveyed. The vessel was got off the sand with considerable difficulty, but very little injured, and after some slight repairs returned to England with a cargo. The deputy naval officer here mentioned, is the deputy of an officer appointed by the governors of our colonies and plantations, to receive an account of ships and their cargoes upon their arrival there (f). The ship had cost 37001. before she left England, and was little more than three years old. The owners being dissatisfied with this sale, brought the present action to try its validity; and, at the trial, it appeared by the evidence of Cook, and of three of the masters who had surveyed her, that they had paid very little attention to the ship itself, which was never pumped before they made their report; but they swore that they thought a sale the most prudent step to be taken, on account of the [† 22] difficulty, expense, and hazard of removing her from her situation, and the little resources that Cook had for such a purpose. The plaintiffs contended, that the master of a ship could not dispose of her in any case; or that, admitting him (f) 15 Car. 2, c. 7, s. 8, and 7 & 8 Wm. 3, c. 22, s. 5. to have this power in a case of absolute necessity (g), such necessity did not exist in this instance, and the whole transaction was a gross fraud. The Chief Justice, Lord Ellenborough, offered to reserve the question of the master's power to sell under any circumstances, for the consideration of the Court, if the verdict should render that point material; and stated his own opinion to the jury to be, that although the master had no general authority to sell, he had an implied authority, in cases of extreme necessity, to act for the benefit of the concern, exercising a sound discretion, such as the owner himself would exercise if he were upon the spot; and that in extreme cases, and extreme cases only, he had power to sell, as in the instance of a wreck which could not be got off, and ought not to be left to perish absolutely. And he desired the jury to consider, whether in this case there was such a necessity as would have induced the owner himself to sell if he had been present; and, if they thought there was such a necessity, then, whether the sale in this instance was fraudulent? The jury found a verdict for the plaintiffs. (1) (g) As to this, (the degree of necessity which will justify a sale of the ship by the master,) see the authorities and reasoning collected in 2 Phillips on Insurance, 307, et seq., and the note to Story's edition of this work, p. 10. As to necessity being an excuse for the violation of a positive law, see Lord Stowell in The Generous, 2 Dods. 328. (1) The words of Lord Ellenborough, as stated in 5 Espinasse's Rep. 65, are, "where a case of urgent necessity and extraordinary difficulty occurs, where a ship has received an irremediable injury, under such circumstances, the captain acting bona fide and for the benefit of the owners, might sell the ship for the benefit of the owners. This is the disposition of my mind, but I cannot lay it down as positive law. At all events, it can only be justified by extreme necessity and the most pure good faith, that is, if the vessel is in such a state as it would be probable the owners themselves, if upon the spot, would have acted in the same way as the captain has done." The case of Reid v. Darby (10 East, 156) is supposed somewhat to have impugned this doctrine; but so far as any intimations to this extent are contained in that case, (which turned in part on the effect of the Registry Acts,) it must be considered as in effect overturned by the more recent decisions. In Read v. Bonham (3 Bro. & Bing. 147), all the Judges affirmed the power of the master to sell in cases of necessity. And again in Robertson v. Clark (1 Bingh. R. 445), the Court, after considering all the authorities, held the same doctrine. Lord Gifford said; "This principle may be clearly laid down, that a sale can only be permitted in case of urgent necessity; that it must be bona fide for the benefit of all concerned, and must be strictly watched." And in Hale v. The Royal Exchange Insur. Co. (8 Taunt. 755), Lord Chief Justice Dallas went into an elaborate discussion of the question, and sustained the right. When that case came before the King's Bench upon a writ of error, the venire de novo awarded by the Court carries a strong implication of its opinion. A stronger case of necessity can scarcely be imagined, than that of Reid v. Darby, for it was there proved, that the repairs of the ship would cost more than she would be worth when repaired. See also Green v. Royal Ex. Assur. Co. 6 Taunton, 68. - |