Thomas et al. v. Osborn.
necessity to encumber the vessel existed; and as Loring & Co. not only knew this, but aided Leach to divert the freight-money to other objects, they obtained no lien on the vessel for their advances.
The cause must be remanded, with directions to dismiss the libel with costs.
Mr. Chief Justice Taney, Mr. Justice McLean, and Mr. Justice Wayne, dissented, and Mr. Justice McLean and Mr. Justice Wayne concurred with the Chief Justice in the following dissenting opinion.
Mr. Chief Justice Taney dissenting.
I dissent from the judgment of the court in this case, and adhere to the opinion I gave at the circuit.
The principal question is, whether certain repairs and supplies furnished to the barque Laura, of Plymouth, in the State of Massachusetts, while she was in the port of Valparaiso, in Chili, in February and March, 1852, are a lien upon the vessel.
The appellants are citizens of Massachusetts, and, at the time of making and furnishing these repairs and supplies, and until and after this libel was filed, were the owners of the barque. She was built for them at Newburyport, under the superintendence of a certain Phineas Leach, who was by profession a mariner. After the vessel was completed, she was placed under his command, as master; and, in the year 1847, he and the appellants agreed that he should sail the vessel on what, in the New England ship-owning States, is familiarly called “a lay”—that is to say, he was to victual and man her, pay one-half the port charges, and be entitled to one-half of the freights or earnings. This is the contract, as stated by Leach in his testimony. No written contract is produced. Indeed, contracts of this description, it would seem, are so well known and understood in the States above mentioned, that they are often made orally, and not in writing. And when the owners agree with a mariner that he shall sail the vessel on “a lay,” both parties understand that the mariner is to take the command of her as master, to victual and man her, and pay half the port charges; the owner to keep the vessel in repair, and the freight and earnings to be equally divided between them. Upon a contract of this kind, the vessel, during its continuance, is under the exclusive control of the master, as respects her voyages and employment. He alone has the right to determine what voyages he will undertake—what cargo he will carry—upon what terms—and to
