3 Hussey v. Allen, 6 Mass. 163; James v. Bixby, 11 Mass. 34; Wain-wright v. Crawford, 4 Dall. 226; Milward v. Hallett, 2 Caines, 77; Webster v. Seekamp, 4 B. & Al. 352; Stewart v. Hall, 2 Dow, 29; The Brig Sarah Ann, 2 Sumner, 215; New England Ins. Co. v. The Brig Sarah Ann, 13 Peters, 387; Edwards v. Havill, 24 Eng. Law & Eq. 303; 14 C. B. 107. See Stearns v. Doe, 12 Gray, 482.
4 Beldon v. Campbell, 6 Eng. Law & Eq. 473; 6 Exch. 886.
5 Organ v. Brodie, 28 Eng. Law & Eq. 530; 10 Exch. 449.
6 Holcroft v. Wilkes, 16 Ind. 373 (1861); Patterson v. Chalmers, 7 B. Mon. 595; Clark v. Humphreys, 25 Mo. 99.
7 Grant v. Norway, 2 Eng. Law & Eq. 337; 10 C. B. 665; Hub-bersty V. Ward, 18 Eng. Law & Eq. 551; 8 Exch. 330. See also Farmers' Bank v. Butchers' Bank, 16 N. Y. 151; Sears v. Wingate, 3 Allen, 103.
Nor, after he has executed a regular bill of lading in favor of one consignor, can he prejudice him by subsequently executing another bill of lading acknowledging the property to belong to another party.1
§ 458. If exclusive credit be given to the master, he alone is liable.2 But if credit also be given to the owners, the presumption in favor of the master's authority to contract only extends to necessaries for the ship. The term necessaries is not, however, to be construed according to its literal import, but is understood to embrace all things, which are suitable and proper, and which the ship might reasonably be supposed by a prudent owner to need.3 If, therefore, the party contracting with the master furnish goods not proper, he can only look to the master for payment; and it is for him to prove that the articles furnished were fit and proper.4 But if credit be given to both parties, and the goods furnished be fit and proper, the person supplying them may look to both parties. So, also, if no credit be given to the master, he is not personally liable;5 but he will be always personally bound, unless he expressly confine the credit to owners of the ship.6 The only question, in all these cases, by which the liability of either or both parties is determined, is to whom the credit was given.7 But when a person dealing with the master as agent knows that the agency of the latter is restricted in respect to the particular subject-matter, he cannot claim to have the terms of his contract fulfilled as against the owner.8
§ 459. In the next place, the master is, in cases of great emergency or necessity, invested, by operation of law, with authority to sell the ship and cargo.9 Where the master has met with severe accidents, by which the vessel is crippled and unable to perform her voyage, he is bound, in the first place, to repair her, if she is worth repairing; and for this purpose, he must first apply all his personal funds on board, and then he may raise money upon the personal credit of the owner, and of the ship, and, if necessary, by bottomry.1 Before giving a bottomry bond, a ship-master should give notice to the owner, whenever practicable; and the mere insolvency of the owner is no excuse,
1 Covill v. Hill, 4 Denio, 324, Bronson, C. J.
2 Thorn v. Hicks, 7 Cow. 697. See Baker v. Huckins, 5 Gray, 596.
3 Webster v. Seekamp, 4 B. & Al. 354; Rocher v. Busher, 1 Stark. 27.
4 Abbott on Shipping (Story's ed.), 106, and note by Mr. Justice Story; Cary v. White, 1 Bro. P. C. 284; Mackintosh v. Mitcheson, 4 Exch. 175.
5 Farmer v. Davies, 1 T. R. 108; Hoskins v. Slayton, Cas. t. Hard. 376.
6 Rich v. Coe, 2 Cowp. 636; Abbott on Shipping, pt. 2, ch. 3, p. 115.
7 Harrington v. Fry, 2 Bing. 181.
8 Barnard v. Wheeler, 24 Me. 412.
9 The necessity which the law contemplates is not an absolute impossibility of getting the vessel repaired. Lapraik v. Burrows, 13 Moore, P. C. 132 (1859).
- if the property has vested in his assignees, notice should be given to them.2 But if the vessel be not worth repairing, and the expense of repairing would be ruinous to the interests of the owner, or if the master be wholly unable to procure money wherewith to make repairs, he may, acting in good faith and for the benefit of all concerned, sell the ship.3 But in case the vessel could be repaired, it must manifestly appear that the sale was a necessary one to protect the interests of the parties,
- and also, that the vessel was not only in great want of repairs, but that money could not be obtained by the master to repair her; or, as the rule is stated, the necessity to sell must be of a moral nature.4 Nor does it matter in respect to the master's right to sell, whether the vessel be stranded on the home shore, or in a foreign port.1 The doctrine has been laid down by Mr. Justice Story, in the following terms:2 "It is not sufficient to a valid sale by the master, that he acted with good faith, and in the exercise of his best discretion. There must be a moral necessity for the sale, so as to make it an urgent duty upon the master to sell for the preservation of the interests of all concerned.3 If the circumstances were such that an owner of reasonable prudence and discretion, acting upon the pressure of the occasion, would have directed the sale, from a firm opinion that the vessel could not be delivered from the peril at all, or not without the hazard of an expense utterly disproportionate to her real value, as she lies, - then a sale by the master is justifiable, and must be deemed to have been made under a moral necessity. The master thus becomes the agent of all concerned in the voyage, and when an abandonment has been accepted by the underwriters, he becomes, by relation, their agent, from the time of the loss to which the abandonment relates; and a sale by him is made as agent of the underwriters."
1 The Nelson, 1 Hagg. Adm. 169; The Zodiac, 1 Hagg. Adm. 320; The Rhadamanthe, 1 Dods. Adm. 201: The Augusta, 1 Dods. Adm. 283; The Sydney Cove, 2 Dods. Adm. 11; The Virgin, 8 Peters, 538; The Aurora, 1 Wheat. 96; Murray v. Lazarus, 1 Paine, 572; The Fortitude, 3 Sumner, 228; The Brig Hunter, Ware, 249; The Reliance, 2 Hagg. Adm. 90; The Packet, 3 Mason, 255; The Tartar, 1 Hagg. Adm. 1; Pope v. Nickerson, 3 Story, 465. See Fitz v. The Amelie, 2 Cliff. 440; 6 Wall. 18.