Thomas et al. v. Osborn.
The master of a vessel has power to create a lien upon it for repairs and supplies obtained in a foreign port in a case of necessity; and he does so without a bottomry bond, when he obtains them, in a case of necessity, on the credit of the vessel.
It is not material whether the implied hypothecation is made directly to the furnishers of repairs and supplies, or to one who lends money, on the credit of the vessel, in a case of necessity, to pay such furnishers.
The power of the master extends to a case where he is charterer and special owner pro hac vice.
But this authority only exists in cases of necessity, and it is the duty of the lender to see that a case of apparent necessity for a loan exists.
Hence, where the master had received freight money, and, with the assistance of the libellants, invested it in a series of adventures as a merchant, partly carried on by means of the vessel, the command of which he had deserted for the purpose of conducting these adventures, and money was advanced by the libellants to enable the master to repair and supply the vessel, and purchase a cargo to be transported and sold in the course of such private adventures; and the freight money earned by the vessel was sufficient to pay for the repairs and supplies, and might have been commanded for that use if it had not been wrongfully diverted from it by the master, with the assistance of the libellants, it was held that the latter had no lien on the vessel for their advances.
This was an appeal from the Circuit Court of the United States for the district of Maryland.
It was a libel filed in the District Court by James W. Osborn of the city of Baltimore, against the barque Laura, her tackle, apparel, and furniture, Osborn being the assignee of Loring & Co., merchants in Valparaiso. The barque Laura belonged to Plymouth, in Massachusetts, and the lien claimed was for supplies and repairs furnished to the vessel at Valparaiso. The District Court decreed that there was due to the libellant the sum of $2,910.23, with interest from the 1st of April, 1852, which decree was affirmed in the Circuit Court.
The case was argued at the preceding term, and held under a curia advisare vult until the present.
The circumstances of the case are set forth with great particularity in the opinion of the court, and need not be repeated.
It was by Messrs. Brune and Brown for the appellants, and by Messrs. Wallis and J. H. Thomas for the appellee.
Some of the points made by counsel related to particular items in the accounts between the parties, which it is not deemed necessary to notice in this report. Those which re-
