Thomas et al. v. Osborn.
of the contract between the owners and Leach, the next question to be considered is, was he still master when these repairs and supplies were furnished?
The appellants contend, that if he was not owner, but only master, while he was sailing the barque, he yet ceased to be master when he remained at Valparaiso, and placed the vessel under the command of Easton, and that from that time Easton was the master; and the contract of Leach for repairs and supplies would therefore create no lien. Undoubtedly, the conduct of Leach in this respect was a violation of his duty to the owners, if he acted without their consent. He was to sail the vessel himself, and this personal trust and confidence could not be transferred by him to another. Such a transfer would be a breach of his contract, and of his duty under it. But that is a question between him and owners, and they might displace him or not, as they saw proper. The point here is, did his official relation as master cease when he engaged in commercial pursuits, and remained on shore at Valparaiso?
Certainly, the misconduct of a captain, while on a voyage or in a foreign port, does not, ipso facto, deprive him of his office. It would be a sufficient reason for the owners to dismiss him; but in this case it is not pretended that he was dismissed or suspended by them. No other person was appointed to the command until after he had voluntarily surrendered it to the owners, after his return to Massachusetts in the spring of 1852. And these supplies had been furnished, at his request, months before the new master was appointed.
Nor did he abandon his official relation to the vessel while he remained at Valparaiso; but, on the contrary, continued to hold possession in person or by his agent, and to exercise the rights and authority of master, according to the terms of his contract with the owners. He continued to man and victual her, direct her voyages, and receive the freights. Easton was paid by him, and not by the owners; he acted under the direction of Leach, as his agent and subordinate, and not under the direction of the owners. He was not even allowed to receive the freight; and when the supplies in question were furnished, Leach was actually on board, in actual command, and Easton acting as his subordinate, under his orders. And as Leach had no ownership whatever in the vessel, all of this must have been done by him as master, and could have been done in no other character; for if he had abandoned that official position, and Easton was master, he had no authority over Easton, nor any more right to interfere with him on the vessel than any other stranger.
Nor is his absence from the vessel by any means incompati-
