Thomas et al. v. Osborn.
how his contract for repairs and supplies can be said to be made in any other character.
His relation to the vessel, and his rights in and over her, differ in no material respect, in a contract of this kind, from that of a master sailing in the ordinary mode, upon fixed and certain wages, from one port to another, under the direction of the owner, to carry or seek for freight. The only difference is, that a larger discretion as to the voyages to be undertaken is given to the master, and he receives half the earnings, instead of certain and fixed wages. And I cannot perceive how these two circumstances can give him any ownership of the vessel, or why the master’s contracts for repairs and supplies in a foreign port shall be a lien upon the vessel in one case, and not in the other. The fact that he is to victual and man the vessel cannot of itself give a right of property in her. It is, undoubtedly, a circumstance to be considered in expounding these contracts, but nothing more. For the exclusive right for the voyage may as well and legally be transferred where the owners man and victual her, as where it is done by the charterer, provided the contract taken altogether shows that such was the intention of the parties. It does not, as I have already shown, depend upon any particular fact, but upon the entire agreement. And I can see nothing in agreements of this kind, as was said by Mr. Justice Story in the case of the Cassius, which indicates an intention to make the master the exclusive owner during the voyages he might make, or that would justify the court in giving it such a construction.
I am aware, that in some or all of the States where these contracts are usually made, there are cases in the State courts in which it has been held, that in these contracts the master is the owner, and that his contracts made in the port of another State are made in the character of owner and not of master, and that an action cannot be maintained upon them against the general owners.
I shall not stop to examine these cases, because the question here is not whether an action can be maintained against the owners for these repairs and supplies, but whether they were a lien upon the barque. I admit that I can perceive no distinction in principle between the personal liability of the general owners and the liability of the vessel. For whatever may be the rights and liabilities of the master and owners, as between themselves, upon their private contract, they cannot affect the rights of third parties dealing with him in his character of master, and furnishing necessary repairs and supplies in a foreign port at his request. They know him only as master, and deal with him in that character. And it is the rule of the
