Thomas et al. v. Osborn.
to the vessel—although they are both furnished at the request of a master who is without funds, and has no other means of obtaining them—then this class of cases will form an exception to the general maritime code of the United States, to which vessels belonging to the ports of other States, and sailing under the usual contract with the master, for certain wages, are subjected; and the parties making the repairs or furnishing the supplies will be deprived of the securities to which they have heretofore supposed themselves entitled, and upon which they have mainly relied; for the personal responsibility of the master, after he is suffered to leave the port, is most commonly of very little value. And it would exempt the ship-owners, in one portion of the United States, from the liabilities and burdens imposed upon those of other States, merely upon the ground that in the one the owner compensates his captain by allowing him a share of the nett amount of the freight earned by the vessel, and in the other by fixed and certain wages. For this, in truth, is the only difference between vessels sailing under a “lay” and those sailing under the usual and customary contract between the owner and master.
In making the inquiry whether Leach was owner while sailing under this contract, we shall find few if any cases in the English decisions to assist us. For contracts of this kind, as I have already said, are hardly if ever used there. And I can find no case where the question arose as to who was owner for voyage in which the contract is not clearly distinguishable from the one before us. And in all of the cases in which it has been held that the general owners were not responsible, it will be found that, by the terms of the contract, the entire and exclusive possession and control of the vessel was transferred for a certain time, or a particular voyage or voyages, and where the general owner, during the time stipulated, had no right to exercise any act of ownership over her. In other words, they are cases in which the court held, that the vessel was let or demised to the party for the time, so as to vest the right of property in the charterer, leaving in the general owners a reversionary interest, subject to the particular interest so let or demised. And whether this is the case or not, and whether there is a special and exclusive property in the charterer, does not depend upon any particular form of words or any particular facts. The general rule in relation to the construction of such contracts is laid down in Abb. on Ship., 61, (7th Am. Ed’n,) in the following words, as the result of the various decisions to which he refers: “From these cases (he says) it appears that the question whether or not the possession of a vessel passes out of the owner or charterer depends upon no single fact or
