Thomas et al. v. Osborn.
use and custom of the seas, it has been allowable for the master to borrow money, on bottomry or otherwise, upon the hull and keel of the vessel, for repairs, provisions, and other necessaries, to enable him to continue the voyage;” Com. on Art. 19, Ord. of 1681; and this assertion rests upon sufficient authority. The Roman law, de exercitoria actionê, D. 14, 1, authorized a simple loan, and does not confine the master to borrow on bottomry. Tha Consulat del Mare, ch. 104, 105, 286, the laws of Wisby, art. 13, the laws of Oleron, art. 1, Le Guidon, ch. v, art. 33, the French ordinance of 1681, art. 19, as well as the present French code de commerce, art. 234, concur in allowing the master to contract a simple loan, in a case of necessity, binding on the vessel. A difference of opinion exists between Valin and Emerigon, concerning the power of the master also to bind the owner to accept bills of exchange for the sum borrowed; but they concur in opinion that the master has power to contract a loan to pay for repairs and supplies, and to give what we term a lien on the ship as security, in a case of necessity. See Valin’s Com., art. 19; Emerigon’s Con. à la Grope, ch. 4, sec. 11; vol. 2, pp. 484, &c. In another place, ch. 12, sec. 4, Emerigon observes, “It matters little whether one has lent money or furnished materials.” The older as well as the more recent commentators are of the same opinion. Kuricke, 765; Loccenius, lib. 3, ch. 7, n. 6; Stypmannus, 417, n. 107; Boulay Paty Cours de Droit, Com. tit. 1, sec. 2, vol. 1, p. 39, and tit. 4, sec. 14, vol. 1, pp. 151–’3; Pardessus Droit Com., vol. 3, n. 631, 644, 660; Pardessus Col., vol. 2, p. 225, note. The subject has been elaborately examined by Judge Ware, in Davis v. Child, Daveis’s R., 75, and we are satisfied he arrived at the correct result.
Nor do we think the fact that the master was charterer and owner pro hac vice necessarily deprived him of this power. It is true it does not exist in a place where the owner is present. (The St. Jago de Cuba, 9 Wheat., 409.) But this doctrine cannot be safely extended to the case of an owner pro hac vice in command of the vessel. Practically this special ownership leaves the enterprise subject to the same necessities as if the master were master merely, and not charterer, and the maritime law gives him the same power to borrow to meet that necessity, as if he were not charterer. The Consulat de la Mer, ch. 289, (2 Par. Col., 337,) has provided for the very case, for it makes the interest of the general owner responsible for the contracts of the master who has received the vessel “en commande;” and one species of this contract was what we should term “a lay”—that is, a participation in profits. Vide
