Thomas et al. v. Osborn.
only as an ordinary transaction, by which the master of an American vessel procured repairs and supplies, and advances of money to pay for repairs and supplies, in a foreign port, the first question which arises is, whether he had power to hypothecate the vessel as a security for their payment, otherwise than by a bottomry bond, which must make the payment dependent on the arrival of the vessel, and creates no personal liability of the owners.
We understand it to be definitely settled by the cases of Stainbank v. Fleming, 6 Eng. L. and Eq., 412, decided by the Court of Common Pleas in 1851, and Stainbank v. Shephard, 20 Eng. L. and Eq., 547, on writ of error in the Exchequer Chamber, so late as 1853, that by the law of England the master of a ship has not power to create a lien on the vessel as security for the payment for repairs and supplies obtained in a foreign port, save by a bottomry bond; that he can only pledge his own credit and that of his owners, but cannot, by any act of his, give the creditor security on the vessel; while, at the same time, the personal liability of the owners continues. Neither of those learned courts considered—perhaps there was no occasion for them to consider—(Pope v. Nickerson, 8 Story’s R., 465,) what should be the effect, in an English tribunal, of the law of the place where the repairs and supplies were if that law tacitly created a lien on the vessel. See Story’s Con. of Laws, § 322 b, 401–’3. These decisions rest merely upon the want of authority in the master, according to the law of England, to create, by his own act, an absolute hypothecation of the vessel as security for a loan. But the maritime law of the United States is settled otherwise—in harmony with the ancient and general maritime law of the commercial world. The master of a vessel of the United States, being in a foreign port, has power, in a case of necessity, to hypothecate the vessel, and also to bind himself and the owners, personally, for repairs and supplies; and he does so without any express hypothecation, when, in a case of necessity, he obtains them on the credit of the vessel without a bottomry bond. The ship General Smith, 4 Wheat., 488; Peyroux v. Howard, 7 Peters, 324, 341; The Virgin, 8 Peters, 538; The Nestor, 1 Story, 73; The Chusan, 2 Story, 455; The Phœbe, Ware’s R., 263; Davis v. Child, Daveis’s R., 12, 71; The William and Emeline, 1 Blatch. and How., 66; Davis v. A New Brig, Gilpin’s R., 487; Sarchet v. The Davis, Crabbe’s R., 185.
It is not material whether the 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. “Through all time,” says Valin, “by the
