Thomas et al. v. Osborn.
expression, but upon the whole of the language of the contract, as applicable to its attendant circumstances.”
But although we find no case in the English reports that can be regarded as in point, contracts like the one before us, and indeed in the same words, have, on several occasions, been brought before the Circuit Court of the United States in the first circuit, where they have been carefully and deliberately considered by the learned judge who recently presided in that circuit. And it has been uniformly held in that court, by Mr. Justice Story, that the master sailing a vessel under such a contract as this is not the exclusive owner for the voyage; and, if regarded as owner at all, is a qualified and limited one; and his character and authority, and duty as master, is not merged in it; and that his contracts for repairs and supplies in a foreign port are made in that character, and are a lien upon the vessel.
One of these contracts came before him in the case of the Nestor, reported in 1 Sum., 73, and was decided in 1831. The claim was for a cable furnished to the vessel at Alexandria, in the District of Columbia, at the request of the master. The vessel belonged to Portland, in the State of Maine. And the court held that the vessel was liable, unless it was shown that the credit was exclusively given to the master. It is true that the article furnished in that case was for the use of the brig, which the owner was bound to keep in repair. But the principle decided applies directly to the case before us—that is, that the master, under one of these contracts, is not owner for the voyage, so far as to exclude his character and authority as captain. And that his contracts for repairs and supplies are presumed to be made in the latter character, and to create the usual maritime lien upon the vessel, and the usual liability of the owner, unless the presumption is repelled by proof that the credit was given to him. The whole subject is fully discussed in this case, and such will be found upon a careful examination the result of the opinion.
The case of the Cassius, 2 Story’s Rep., 81, was a contract of the same description, between the master and owners; and in that case the rights of the master and the responsibility of the owners for his acts in a foreign port were fully considered; and the decision turned upon the question whether, under one of these contracts, the master was the owner for the time. And the learned judge, speaking of the case of Taggart v. Loring, 16 Mass. R., 336, says: “That case is distinguishable in its actual circumstances from the present. The argument in that case does not appear from the statements of the report to have been identical with the present. And if it were, I must say that I should have some difficulty in acceding to the authority of that
