The two following Decisions are annexed by the Editor, who presumes that they will be found sufficiently important to be entitled to a place in this volume. IN Shrewsbury v. Sloop Two Friends. N this cause of Shrewsbury v. The Sloop Two the case. of 1786. January. A shipcarpenter has no lien for repairs, after the vessel is possession, made on land, and the owners resi That the vessel, with an American register, is owned out of his partly by a foreign merchant, but now resident here; and partly by a citizen of the state of Georgia, who re. tract was sides there. That soon after her arrival in this port, the foreign dent in the part owner attached in the court of common pleas, the place. remaining property of the other in her, for a debt due son, 99 Clinto him by the said other part owner. That a claim was set up against the moiety attached by a third person, who asserted that a sale thereof had previously been made to him; which contest is still pending in the court of common pleas. That after the attachment, and while the vessel continued in the custody of the sheriff, (but by his permission remaining in the possession of the plaintiff in attachment,) Shrewsbury, a shipwright, was employed to repair her. (And here there was a variety and contradiction in the evidence produced, whether Shrewsbury was cmployed by the master, or the foreign part owner; there being positive swearing to each.) That the vessel being removed out of Shrewsbury's dock, he applied to this court, for a warrant to arrest her, for the repairs; which warrant issued, and was executed by the marshal, during the absence of the sheriff. On the return of the warrant, a motion was made in behalf of the foreign part owner, that it be quashed; and the motion was supported on the following grounds: 1st. That 3 I See Hopkin ton v. Brig Hannah. 1786. 1st. That the vessel being in custody of the sheriff, Shrewsbury was not within the jurisdiction of this court. V. Sloop Two 2d. That the repairs being made on the vessel in port, and not while on a voyage, but by owner's order, and she being hypothecated neither by the master, nor owner, the vessel was not liable, but recourse must be had to the owner. This motion was opposed in behalf of the actor, 1st. On the general principle, that for all repairs made and necessaries supplied to a vessel, she is liable; that an hypothecation is always implied, whether executed in form or not: and that properly, only one moiety could be said to be in the custody of the sheriff. 2d. But that however the rule might be with regard to repairs and necessaries supplied at home, and in the port to which the vessel belongs; there is a difference when she is in a foreign port; that this is settled by the resolutions of all the judges in Charles I. time, as reported in Cro. Ca. 216., and that Charleston is to all intents and purposes, a foreign port, both to the vessel and owners; that it would be hard, if it was otherwise; for as the owner was a foreigner, and perhaps had no other property in this state, the shipwright might lose his debt, or not obtain any security for it, if the vessel was not liable. To this last argument, it was replied, that the owner had offered any security to the shipwright, if he would wait the determination of the suit in the common pleas, concerning the attached moiety; and that he had indeed reconducted the vessel into the shipwright's own dock, where she now lay. This being a short state of the case, and of the arguments offered on both sides, the court is now to pronounce an opinion and decree upon the whole. The principal points to be considered and determined, I think, are the following: 1st. Whether a vessel is liable for all repairs and ne cessaries V. cessaries in general, at any time and in any circum- 1786. stances. Or, 2d. Whether a distinction is to be taken, Shrewsbury and a difference made; and that she may be liable in Sloop Two particular cases, and not in others; and lastly, whether Friends. her being a foreign vessel, and owned by a foreign merchant, will make any difference in the general rule on such occasions. And with regard to the first and second points, I conceive the law to be clear and settled. The jurisdiction of this court extending only to maritime causes, it cannot take cognizance of any transactions or contracts which arise on land. And herein I distinguish thus: Where a vessel is lying in port, and the owner is there present, all matters and contracts, relative to her, must be supposed to be entered into by him on shore; and consequently to be infra corpus comitatus; and redress and satisfaction, in case of any dispute on the occasion, must be sought in the courts of common law. But where a vessel is on a voyage, and by stress of weather, or other accident, puts into a port, the occasion happening at sea, and on her arrival in port no owner being present, to whose personal credit recourse may be had for necessaries, the master, ex necessitate rei, has a right to procure them on the security of the vessel; and to obtain payment on that security, this is the proper and only court to apply to. This distinction is plainly laid down and taken notice of in all the cases, where this matter has been agitated. I will examine the several authorities, which have been cited in the present case, for and against this opinion; and from them shew the reasons upon which I ground mine. Much stress has been laid by Mr. Read, on the resolutions of the judges, as reported in Cro. Ca. 216. in support of his argument. I shall make some observations on those resolutions. In 1786. In the first place, it does not appear, that they were Shrewsbury an adjudication on any particular case before the court. Sloop Two They seem merely gratis dicta; and this interpretation V. Friends. so favourable to the extent of the admiralty jurisdiction, was made but a few years after the remarkable contest between the judges of that court, and of the common law courts, which is mentioned in the 4th Institutes. The court of admiralty at that time, claiming almost every thing; perhaps the other at first, thought it necessary to concede something more than they had a legal right to. At least it proves that some doubts prevailed on the subject; and that the jurisdiction was either not well understood, or settled on one side. It is remarkable too, that these resolutions, which are inserted in the first editions of Croke, do not appear in the later. I observed the edition Mr. Read quoted from is of 1657. Upon referring to mine, which is of 1669, I find them omitted. (See Hopkinson's Reports, 101.) From whence there is a seeming implication, that upon better consideration, they were held not to be of authority; and were therefore omitted. This is confirmed by an adjudication in the same reign contradicting them. It is in Bridgman's case, Hob. 11. There, says the chief justice, "The admiralty "court hath no power over any cause at land; for both by the nature of the court, and by the statute, it is to "meddle with things arising upon the seas. "But (he goes on) I was of opinion clearly, that the "admiral law is reasonable, that if a ship be at sea, and "take leak, or otherwise want victual or other neces"saries, whereby either herself be in danger, or the voyage defeated, that in such a case of necessity, the "master may impawn for money, or other things to "relieve such extremities, by employing the money so; for he is the person trusted with the ship and voyage, and therefore reasonably, may be thought to "have that power, rather than see the whole lost. But 1786. V. Sloop Two "in this case, the faults were, that neither the contract, "nor the impawning were said to be for any such Shrewsbury cause, nor was the impawning said to be at sea." And lastly, the authority contended for under those resolutions is denied by all the subsequent, and late determinations on the subject. The first, Molloy 333., though short, is express to the point. In Justin's and Ballam's case, Salk. 35. (but better reported 2 Ld. Raym. 805.) it is expressly laid down, "that as it did not appear the ship was on her voyage, when she was in distress, and the contract "made for the cable and anchor, the case was out of "the admiralty jurisdiction." I shall have further occasion to refer to this case hereafter. The next in point of time is Watkinson and Barnardiston, 2 P. Will. 367. There it was likewise determined, "If a ship is in the Thames, and money is laid "out for repairs, &c. it is no charge on the ship; but "the person employed must resort to the owner." "But if at sea, (i. e. if on a voyage) and no contract "can be made with the owner, the master, ex necessi"tate rei, may hypothecate the ship for repairs.” Here the distinction is fully expressed; the circumstances fixed, and the reason explained: "On a voyage;" and because the "owner is not present." Of course the inference is, that if she is not on a voyage, and if the owner is present, there is no such claim on the ship, nor any such power in the master. The master's power arises only in the absence of the owner, as his substitute and representative; and even in the owner's absence, he is not empowered on all occasions to make the ship or owner liable. "For if he takes up money to mend or victual the "ship, when there is no occasion, he only is liable. "And it is but reasonable, that the person advancing "the money should take care, that he lends it upon "such Friends. |