OWNERS AND MANAGERS
=1. Who May Be.=--The owner of an American vessel must be a citizen of
the United States. The statutes provide that "Vessels registered
pursuant to law and no others, except such as shall be duly qualified
according to law for carrying on the coasting or fishing trade, shall be
deemed vessels of the United States, and entitled to the benefits and
privileges appertaining to such vessels; but no such vessel shall enjoy
such benefits and privileges longer than it shall continue to be wholly
owned by a citizen or citizens of the United States or a corporation
created under the laws of any of the States thereof, and be commanded by
a citizen of the United States" (7 Comp St., 1916 § 7707). Ownership may
be shown by possession, under claim of title, as in the case of other
personal property, but the best evidence is the formal bill of sale,
possession, and a clean abstract of title from the records of the
Collector of Customs of her home port. All persons born or naturalized
in the United States, and subject to its jurisdiction, are citizens of
the United States and of the state wherein they reside. Thus minors,
married women (except those having alien husbands), persons under
guardianship, trustees, and corporations, like other citizens, may be
owners.
=2. Part-Owners.=--The ship may be owned in shares by any number of
individuals. Such part-owners do not become partners by reason of such
ownership. Each has a separate and distinct interest which he may sell
or dispose of without the consent of the others. They are not partners
in the absence of a special agreement to that effect. Each is liable for
only his own proportion of the debts and none is responsible for the
acts of the others beyond the amount of his interest in the ship, unless
he has himself created such further liability directly or by reasonable
implication.
Generally speaking, the part-owners of a ship occupy the legal status of
tenants in common. They may, of course, become partners and subject to
the legal incidents of partnership. If they so agree, or if they act in
such a manner, they assume the attributes of partnership, one of the
chief of which is the liability of each individual partner for the
entire indebtedness of the firm (The Wm. Bagaley, 5 Wall. 377).
The Daniel Kaine, 35 Fed. 785, was a contest over the surplus remaining
in the registry of the court from the sale of a tow-boat. This had been
allotted to the several part-owners in proportion to their shares, but
the master, who was one of the owners, claimed a lien against the entire
fund for advances made by him on the theory that the owners held the
vessel in partnership and not merely as individual coöwners. The Court
said:
The burden of proof is upon Captain Cowan to establish the allegation
contained in his petition, but which is denied in the answer thereto,
that the shareholders in the Daniel Kaine were not tenants in common
but partners in respect to the ownership of the vessel. Has he
succeeded in this? The evidence bearing upon this point is as follows:
The boat was built by James Lynn, George T. Miller, and R. W. Cowan,
who from the first held her in defined shares,--Lynn and Miller each
owning seven-eighteenths and Cowan owning four-eighteenths. Thus was
the boat enrolled on February 8, 1882. Speaking of her enrollment,
Captain Cowan testifies: "There was no other agreement among us than
that the boat should be as set out in the registry." In April, 1886,
George T. Miller transferred his seven-eighteenths in the boat to
George B. Kaine. Captain Cowan further states that there was no written
agreement between the owners of the boat as to how she was to be
operated, nor any verbal agreement that she was to be run or operated
in partnership. However, it seems that, by the tacit consent of all the
owners, she was run on joint account. Her employment was in the towing
of coal, and at first she was principally engaged in towing for two
coal firms, in one of which Lynn was a member, and in the other Miller,
viz., James Lynn & Sons, and George T. Miller, & Co. The bookkeeper who
kept the books of the boat made out and furnished annually to the
several owners balance sheets, in which the cost of the boat appeared
as an item. Do these facts establish that the shareholders in the
Daniel Kaine were partners in her ownership? I think not. That the cost
of the boat appeared in the balance sheets which the bookkeeper made
out is not a controlling circumstance, and, indeed, is a matter of
little moment, when considered in connection with Captain Cowan's
testimony, above quoted. According to the enrollment of the boat, her
part owners were tenants in common, and there was no different or other
agreement as to ownership. An agreement to run a ship on shares does
not make the owners partners with respect to the vessel. Says Chief
Justice Gibson in Hopkins _v._ Forsyth, 14 Pa. St. 38:
"Carriers may doubtless become partners, but not merely by becoming
joint owners of a chattel, and using it for a common purpose. And the
principle is peculiarly applicable to ships or other craft, the
exceptions to it in respect to them being always founded in very
special circumstances."
Now, where the vessel is not partnership property, according to the
clear weight of authority in this country, one part owner has no lien
for his advances and disbursements upon the share of his coöwner. Nor
does it make any difference that the part owner making such advances
was also the ship's husband. In treating of this subject, Mr. Justice
Curtis, in the case of the Larch, 2 Curt. 434, State, after remarking
that in England the law is now settled against the existence of the
lien, said:
"There has been some diversity of decision in this country, but I
think it has proceeded from diversity in the views taken of the
particular facts of the cases, rather than from any real difference
in principles. That the owners of a vessel may be copartners in
respect to that, as well as any other property, and that, when they
are so, each has a lien, can not be doubted. But where no such
special relation exists, where they are merely part owners, and as
such tenants in common, that one has no lien on the share of another
for advances, I believe to be equally clear."
=3. Corporations.=--Corporations organized under state laws may be the
owners of American vessels. A corporation is a legal person having an
individuality distinct from all its stockholders. It is the corporation,
and not the stockholders, who owns the corporation property. For that
reason the Attorney General has expressed the opinion (29 Op. 188) in a
case in which a vessel was owned by a corporation of the State of New
York, a majority of whose stock was held by aliens and whose directors
were all aliens, except three, that, under the laws, so long as the
corporation was legally organized and existing as an American
corporation under the laws of New York, a vessel owned by it was
entitled to American registry.
It is unlawful, without obtaining permission of the Shipping Board, to
place under foreign registry, a vessel owned wholly or in part by an
American corporation or to transfer such vessel to any person other than
a citizen (Merchant Marine Act, 1920. See Appendix), and within the
meaning of that act no corporation is deemed a citizen unless the stock
control and management are vested in individual Americans. To enable a
corporate-owned vessel to engage in the coasting trade, 75 per cent of
the interest in the corporation must be American owned.
=4. Majority Interest.=--The majority interest will usually control,
whether the title is in a corporation or individuals. Thus the majority
may direct or change the employment of the vessel, pledge her for
supplies or repairs, and employ or dismiss the master and crew. If the
master be also a part-owner, the majority still has the right to remove
him, unless there is a valid written agreement to the contrary. In the
Orleans _v._ Phoebus, 11 Peters, (U. S.) 175, it appeared that Phoebus
was master and owner of one-sixth of the steamboat _Orleans_. He alleged
that he had been dispossessed by the owners of the other five sixths,
who were operating the vessel against his wishes. Speaking for the
Supreme Court, Justice Story said:
The majority of the owners have a right to employ the ship in such
voyages as they may please; giving a stipulation to the dissenting
owners for the safe return of the ship, if the latter, upon a proper
libel filed in the admiralty, require it. And the minority of the
owners may employ the ship in the like manner, if the majority decline
to employ her at all.
Similarly Justice Clifford, in The Wm. Bagaley, 5 Wall. 377:
Even where the part owners of a ship are tenants in common, the
majority in interest appoint the master and control the ship, unless
they have surrendered that right by agreeing in the choice of the
ship's husband as managing owner.
If the owner be a corporation, the control of the vessel is usually
directed by the Board of Directors, as in the case of other corporate
enterprises, though the holders of a majority of the capital stock may
determine the disposition of the vessel and all matters relating to her,
by voting their stock at regular or special stockholders' meetings,
called in accordance with the company's charter and by-laws and the laws
of the state in which the company is incorporated.
=5. Minority Interest.=--The minority interest, where the majority sends
out the ship against its wishes, may compel the majority to give a bond
for its safe return or the payment of the value of its interest. This
may be obtained through a court of admiralty. When such security is
given the dissenting owners, they are not entitled to compensation for
the use of their shares or to any portion of the profits. In the same
way, a minority, desiring to use the ship against the majority who
prefer to lay her up, may obtain her. The rule was thus laid down by
Justice Clifford in The Wm. Bagaley, 5 Wall. 377, heretofore cited:
Admiralty, however, in certain cases, if no ship's husband has been
appointed, will interfere to prevent the majority from employing the
ship against the will of the minority without first entering into a
stipulation to bring back the ship or pay the value of their shares.
But the dissenting owners in such a case, bear no part of the expenses
of the voyage objected to, and are entitled to no part of the
profits.... Unless the coöwners agree in the choice of a managing owner
or the dissenting minority go into admiralty, the majority in interest
control the employment of the ship and appoint the master.
The admiralty practice is governed by the old maxim that "ships were
made to plow the ocean, and not to rot by the wall." So, if the owners
be evenly divided in opinion, the party desiring to employ the ship will
prevail, on giving security to the other. In Willings _v._ Blight, 2
Pet. Adm. 288; 30 Fed. Cas. No. 17765, decided by the United States
District Court for the Eastern District of Pennsylvania in 1800, the
court quaintly expressed the law as follows:
It is a principle discernible in all maritime codes, that every
encouragement and assistance should be afforded to those who are ready
to give their ships constant employment; and this not only for the
particular profit of owners, but for the general interests and
prosperity of commerce. If agriculture be, according to the happy
allusion of the great Sully, "one of the breasts from which the State
must draw its nourishment," commerce is certainly the other. The earth,
parent of both, is the immediate foundation and support of the one, and
ships are the moving powers, instruments and facilities of the other.
Both must be rendered productive by industry and ingenuity. The
interests and comforts of the community will droop and finally perish
if either be permitted to remain entirely at rest. The former will less
ruinously bear neglect, and throw up spontaneous products; but the
latter require unremitted employment, attention and enterprise, to
insure utility and product. A privation of freight, the fruit of the
crop of shipping, seems therefore to be an appropriate mulct on
indolent, perverse or negligent part owners. The drones ought not to
share in the stores acquired and accumulated by the labor, activity,
foresight and management of the bees. Although the hive may be common
property, it is destructively useless to all, if not furnished with
means of profit and support by industry and exertion; which should be
jointly applied by all before they participate in beneficial results.
Nor should the idle and incompetent be permitted to hold it vacant and
useless to the injury and ruin of the industrious and active.
=6. Suits between Part-Owners.=--The admiralty will sometimes entertain
a suit for partition between owners who can not agree and sell the ship
for the purpose of dividing the proceeds. Generally it will only
recognize legal titles, that is, those shown by bills of sale or matters
of record, and not merely equitable claims of ownership. Part-owners
have no lien against each other where one has paid more than his share
of the debts or expenses and therefore can not proceed against the ship
directly. They can, however, have an accounting in equity or other
proceeding in state courts for the purpose of adjusting the matter. One
may sue the other for the loss of the vessel by negligence. A part-owner
may have a lien upon the ship for wages or other maritime services,
subordinate, however, to the liens of strangers to the title. Each is
bound to pay to the others his own share of the expenses of the ship
and, in the absence of an express agreement to the contrary, the law
will imply a promise to repay an excess advanced by one over his share
on which an ordinary action may be brought (Sheehan _v._ Dalrymple, 19
Mich. 239).
=7. Authority of Owner.=--As between the owner and the master, the
former is supreme. The relation is one of agency or employment and the
master must obey. The owner has the legal right to take his ship from
the custody and control of the master, at any time, and in whatever
place. He may remove him at pleasure, and without assigning any cause,
subject only to the ordinary responsibility for breach of contract if a
contract be broken. This is because the owner is very deeply concerned
in who is master of his ship and is so highly chargeable with his
conduct that it is deemed proper that he should be permitted to dismiss
him at any time. The relation is a confidential one and can not be
forced to continue when confidence ceases.
=8. Obligation of Owner.=--The owner is bound to provide a seaworthy
ship. While the maritime law, in order to encourage investments of
capital, endeavors to provide certain limitations of liability, the
obligation of seaworthiness is supreme up to, at least, the amount
invested in the ship. Subject only to a possible limitation of
liability, the owner is absolutely bound to furnish and maintain a
seaworthy ship; this obligation is analogous to that of an employer on
land to furnish a safe place for his employees or of a carrier to
furnish safe and roadworthy means of transport.
Seaworthiness is a relative term. The ship must be fit in design,
structure, condition and equipment to encounter the ordinary perils of
the voyage. She must have a competent master and a sufficient crew.
Absolute perfection, of course, is not required; the real test is that
the ship shall have that degree of fitness which the ordinary careful
and prudent owner requires of his vessel at the commencement of the
voyage in view of all the circumstances which may attend it.
The law does not insist that the shipowner shall in person attend to all
his duties in respect of the ship. It recognizes that most of these must
be met by agents. It contemplates that shipowners may avail themselves
of the facilities common to business men and be relieved whenever they
have properly employed competent agents to supervise the ship at sea and
in port. In most instances where the maritime law may be applied the
owner will not be responsible beyond his interest in the ship, for the
acts or omissions of agents whom he has selected with due care.
=9. Liability of Owner.=--The owner is liable for all the contracts and
negligence of the master up to, at least, the value of his interest in
the ship. In most cases, he may limit his liability to such value by
abandoning the ship to the creditors. This is an underlying doctrine of
the general maritime law and generally carried forward into the statutes
of all maritime countries. There is a general exception, however, in
regard to sailors' wages. The owner remains absolutely liable for these
and cannot limit against them. He is also liable for all his personal
contracts in regard to the ship as well as for his personal negligence.
He will not be liable for the contracts or torts of the master outside
of the scope of his employment, as on a bill-of-lading for cargo never
received on board or an unauthorized assault on a passenger.
An illustration of the liability of the owner for contract of the master
within the scope of his employment is to be found in a case in which the
master contracted for extra pilotage. As the United States District
Court remarked in the Cervantes, 135 Fed. 573, "In pilotage cases resort
may be had to the vessel or the owner or the master."
The case of Chamberlain _v._ Ward, 21 How. 548, illustrates the
liability of an owner for the tort of the master. It grew out of a
collision in Lake Erie and was an action in admiralty brought _in
personam_ by the owners of one of the vessels against the owners of the
other for damages, alleging the negligent operation of the respondents'
vessel. The Supreme Court (Clifford, J.) held:
Owners of vessels, and especially those who own and employ steamships,
whether propellers or sidewheel steamers, must see to it that the
master and other officers intrusted with their control and management
are skillful and competent to the discharge of their duties, as, in
case of a disaster like the present, _both the owners and the vessels_
are responsible for their acts, and must answer for the consequence of
their want of skill and negligence; and this remark is just as
applicable to the under officers, whether mate or second mate, as to
the master, during all the time they have charge of the deck. That the
mate in this case was substantially without experience in navigating
steamers, and utterly destitute of the requisite information to fit him
to determine the proper courses of the voyage, are facts so fully
proved that it is difficult to regard them as the proper subjects for
dispute; and what is more, the master knew his unfitness when he
started on the voyage, and stated before the vessel left Cleveland, to
the effect that he was afraid he was going to be sick, and that he had
no confidence in the mate. Some of the owners also distrusted his
fitness when they employed him, and made an effort to engage another
person in his stead; and one of them, after having heard of the
disaster, expressed his regret that the person to whom he first applied
had not taken his place.
The case of Hough _v._ Western Trans. Co., 3 Wall. 20, was a libel _in
personam_ against the owners of the steamer _Falcon_. The vessel, while
made fast to libellant's wharf, took fire through the negligence of the
master and crew. The fire communicated to the wharf, which was destroyed
with the buildings on it and those adjacent. While the court held that
the tort was committed on land and, not being maritime, the admiralty
court was without jurisdiction, it upheld the principle of the liability
of owners for the negligence of the master and crew as follows:
The owner of a vessel is liable for injuries done to third persons or
property by the negligence or malfeasance of the master and crew while
in the discharge of their duties and acting within the scope of their
authority. It is upon this principle that the defendants are liable, if
at all, to the libellants for the damages sustained. The circumstance
that the agents were in the employment of the owners on board the
vessel, and that the negligence occurred while so employed, and which
occasioned the damage, gives to the libellants the right of action.
This is, indeed, simply the general law of master and servant or
principal and agent.
=10. Temporary Ownership.=--The ship may be chartered so that the hirer
will become, in law, her temporary owner. This is ordinarily
accomplished by means of a written contract called a charter party. It
may contain whatever agreements the parties choose but when its legal
effect is to give the hirer exclusive possession, control and
management, so that he appoints the master, runs the vessel and receives
the entire profits, there is a demise or conveyance of the ship and the
hirer becomes owner _pro hac vice_, or, for the time being. He is then
responsible for her contracts and torts and may limit his liability as
if he were the actual owner and the latter is freed from personal
responsibility. The situation is like a lease of premises on land to a
tenant. The officers and crew become the agents or employees of the
charterer and, in matters of contract particularly, as for supplies and
repairs, the ship may not be subject to maritime liens if the creditor
has notice of the terms of the charter party which preclude their
creation. To effect this change into temporary ownership, the terms of
the instrument should be plain and explicit; if indefinite or ambiguous,
the construction will be against a demise of the ship, the courts
favoring an interpretation which preserves the liabilities and liens
incident to the permanent title.
The temporary ownership of a vessel by a person other than the real
owner does not relieve the ship herself from those liabilities which
attach to her in any event: For example, her liability for damage caused
others by her torts, as faulty navigation; or from liability under those
contracts for which the ship itself is primarily responsible, such as
contracts for bunkers and supplies and necessary repairs elsewhere than
in the home port. This principle is laid down in the case of the
Barnstable, 181 U. S. 464, as follows:
The law in this country is entirely well settled that the ship itself
is to be treated in some sense as the principal and as personally
liable for the negligence of any one who is lawfully in possession of
her whether as owner or charterer.
And in the case of Sherlock _v._ Alling, 93 U. S. 99, where it was said:
By the maritime law the vessel, as well as owners, is liable to the
party injured for damages caused by its torts. By that law the vessel
is deemed to be an offending thing and may be prosecuted without any
reference to the adjustment of responsibility between the owners and
the employees for the negligence which resulted in the injury.
The claim of the true owner to his vessel will not, however, be defeated
by fraudulent acts of the temporary owner to which the real owner was
not privy, because in such a case the theory of the agency of the master
or temporary owner for the real owner fails. This subject is discussed
in the leading case of the Freeman, 18 How. 182. In that case the
temporary owner caused the master to sign bills of lading, certifying
that a quantity of flour had been shipped on board the schooner from
Cleveland to Buffalo by the temporary owner consigned to the libellants.
No such flour had in fact been shipped and the consignees, who had
advanced money on the bills of lading, libeled the ship. The real owner
filed a claim to the vessel. The Court (Curtis, J.) said:
Bills of lading themselves are not real contracts of affreightment, but
only false pretenses of such contracts; and the question is, whether
they can operate, under the maritime law, to create a lien, binding the
interest of the claimant in the vessel.
Under the maritime law of the United States the vessel is bound to the
cargo, and the cargo to the vessel, for the performance of a contract
of affreightment; but the law creates no lien on a vessel as a security
for the performance of a contract to transport cargo, until some lawful
contract of affreightment is made, and a cargo shipped under it.
In this case there was no cargo to which the ship could be bound, and
there was no contract made, for the performance of which the ship could
stand as security.
But the real question is, whether, in favor of a _bona fide_ holder of
such bills of lading procured from the master by the fraud of an owner
_pro hac vice_, the general owner is estopped to show the truth, as
undoubtedly the special owner would be.
* * * * *
We are of opinion that, under our admiralty law contract of
affreightment, entered into with the master, in good faith, and within
the scope of his apparent authority as master, bind the vessel to the
merchandise for the performance of such contracts, wholly irrespective
of the ownership of the vessel, and whether the master be the agent of
the general or special owner.
* * * * *
For the ground on which we rest the authority of the master, who is
either special owner or agent of the special owner, is, that when the
general owner intrusts the special owner with the entire control and
employment of the ship, it is a just and reasonable implication of law
that the general owner assents to the creation of liens binding upon
his interest in the vessel, as security for the performance of
contracts of affreightment made in the course of the lawful employment
of the vessel. The general owner must be taken to know that the purpose
for which the vessel is hired, when not employed to carry cargo
belonging to the hirer, is to carry cargo of their persons; and that
bills of lading, or charter-parties, must, in the invariable regular
course of that business, be made, for the performance of which the law
confers a lien on the vessel.
He should be considered as contemplating and consenting that what is
uniformly done may be done effectually; and he should not be allowed to
say that he did not expect, or agree, that third persons, who have
shipped merchandise and taken bills of lading therefor, would thereby
acquire a lien on a vessel which he has placed under the control of
another, for the very purpose of enabling him to make such contract to
which the law attaches a lien.
* * * * *
There can be no implication that the general owner consented that false
pretenses of contract, having the semblance of bills of lading, should
be created as instruments of fraud; or that, if so created, they should
in any manner affect him or his property. They do not grow out of any
employment of the vessel; and there is as little privity or connection
between him, or his vessel, and such simulated bills of lading, as
there would be between him and any other fraud or forgery which the
master or special owner might permit.
Nor can the general owner be estopped from showing the real character
of the transaction, by the fact that the libellants advanced money on
the faith of the bills of lading; because this change in the
libellants' condition was not induced by the act of the claimant, or of
any one acting within the scope of an authority which the claimant had
conferred. Even if the master had been appointed by the claimant, a
willful fraud committed by him on a third person, by signing false
bills of lading, would not be within his agency. If the signer of a
bill of lading, was not the master of the vessel, no one would suppose
the vessel bound; and the reason is, because the bill is signed by one
not in privity with the owner. But the same reason applies to a
signature made by a master out of the course of his employment. The
taker assumes the risk, not only of the genuineness of the signature,
and of the fact that the signer was master of the vessel, but also the
apparent authority of the master to issue the bill of lading. We say
the apparent authority, because any secret instruction by the owner,
inconsistent with the authority with which the master appears to be
clothed, would not affect third persons. But the master of a vessel has
no more than apparent unlimited authority to sign bills of lading, than
he has to sign bills of sale of the ship. He has an apparent authority,
if the ship be a general one, to sign bills of lading for cargo
actually shipped; and he has also authority to sign a bill of sale of a
ship, when, in case of disaster, his power of sale arises. But the
authority, in each case, arises out of, and depends upon a particular
state of facts. It is not an unlimited authority in the one case more
than in the other; and his act, in either case, does not bind the
owner, even in favor of an innocent purchaser, if the facts upon which
his power depended did not exist; and it is incumbent upon those who
are about to change their conditions, upon the faith of his authority
to ascertain the existence of all the facts upon which his authority
depends.
* * * * *
On these grounds, we are of the opinion that, upon the facts as they
appear from the evidence in the record, the maritime law gives no lien
upon the schooner that the claimant is not estopped from alleging and
proving those facts.
It should be noted that the mere record title does not conclusively
establish ownership. That title may be only security for the real owner
out of control. The real facts may be shown when necessary (Davidson
_v._ Baldwin, 79 Fed. 95).
=11. Managing Owner.=--The shore business of a ship is usually attended
to by an agent or representative called the "managing owner," "ship's
husband," "shore-captain," "port-captain," "managing-agent," or
"manager." Different expressions prevail in different localities but
they all mean substantially the same thing--an agent of the owners
charged with keeping the ship in good repair and finding business for
her. He has authority to direct all proper repairs, equipment and
outfit, to hire the officers and crew, to make contracts for freight, to
collect and disburse the earnings. He should see that the ship is
seaworthy and supplied with all necessary and proper papers. He has no
implied authority to borrow money, nor surrender a lien for freight, nor
to insure; he cannot bind the owners to the expenses of a lawsuit
without their special consent. It is doubtful whether he can, in any
event, pledge the credit of the owners beyond their interest in the ship
and it is probable that they are entitled to the statutory limitation of
liability against all his contracts or torts in which they do not
personally participate. If, however, the ship is owned by a corporation,
it is not advisable that any of the directors or officers should also be
the managing owner, as his "privity or knowledge" may thereby attach to
the corporation.
In Woodall _v._ Dempsey, 100 Fed. 653, the Court found the facts to be
as follows:
The suit is for $3,513, a balance due for repairs. The work was done at
Baltimore costing $16,000. The home port of the vessel was
Philadelphia, the owners being Patrick Dempsey and Henry Hess, who
reside here; the former having four-fifths, the latter one. Dempsey,
managing owner, ordered and superintended the repairs. Mr. Woodall
sought the work for his company, and came to Philadelphia to obtain it.
At that time it was supposed $5,500 would cover the cost. The vessel
was subsequently taken to the libellants' place at Baltimore and the
work commenced in pursuance of arrangements made here. It was
afterwards found that much more must be done than had originally been
contemplated, and a much larger bill incurred. On the completion of the
work, notes (of Dempsey) were given for the $3,513 unpaid, and the
vessel was delivered to the owners.
Woodall brought an action _in personam_ against Dempsey and Hess for the
$3,513. It appeared that plaintiff dealt with Dempsey alone and there
was no evidence to show that he took any action or made any expenditure
on the credit of Hess. The Court said:
In my opinion the case turns on the power of Dempsey, considered merely
as managing-owner, to bind Hess by the contract for repairs. Upon this
subject the decision in Spedden _v._ Koenig, 24 C. C. A. 189, 78 Fed.
504, relied on by the respondents, seems to be much in point. The
syllabus of the case states correctly the rule applied by the court:
"In the home port, where all the owners reside, the managing owner,
though registered as such at the custom house, can not, merely by
virtue of that relation, order supplies and bind his coöwners to a
personal liability therefor."
=12. Compensation and Lien.=--The compensation of the managing owner or
ship's husband depends upon contract, express or implied, with the
owners. In some localities, usage may provide a commission on the
amounts of money which he handles. Where he is not one of the owners,
the law would doubtless imply a promise to pay him a reasonable
compensation; where he is a part owner himself, it is doubtful if
compensation could be recovered in the absence of a definite agreement;
ordinarily tenants in common are not entitled to charge each other for
services rendered in the care and management of the common property, in
the absence of a statute or special contract. The managing owner is not
entitled to a lien upon the ship for his compensation or disbursements
but he may have a lien upon the profits of a voyage in his hands or upon
the proceeds of the ship in the same situation.
REFERENCES FOR GENERAL READING
_Shipping and Admiralty_, Parsons, Vol. I, Chapter IV.
_Admiralty_, Hughes, Chapter XV.
Spedden _v._ Koenig, 78 Fed. 504.
Law of Part-Owners of Vessels, 88 Am. Dec. 364.
Gillespie _v._ Winberg, 4 Daly (N. Y.) 318.
Mitchell _v._ Chambers, 43 Mich. 150.
_Maritime Law_, Saunders, Chapters I and XV.