at Nantucket, and having been repaired. The repairs of the brig, and her cost at the sale made by the master, amounted to twenty-four hundred and ninety-four dollars and sixtyseven cents, and she was sold in Boston, in July, 1828, for $2,736.41. On the 14th of May. 1828, the president of the insurance company wrote to the agent of the former owners of the brig, the assured, stating that the brig was then in Boston, and saying, As she is now within your own control, as agent for the owners, if you do not take possession of her in their behalf, the company must consider the sale of her at Nantucket as affirmed by them; and that she is sold for their account. We, of course, shall contest the validity of the sale as it regards ourselves, and we think the owners ought to contest it themselves."

66

At this time the title to the brig was in contest between the assured and the assurers. The abandonment was denied to be good, and neither party was in a situation to assert a title without compromitting rights then actually in contesta tion. There were no allegations or proofs in the cause that after the final acceptance of the abandonment, in October, 1828, the brig had been within the ports of Massachusetts, and within the reach of the process of the court for a reasonable time, within the knowledge of the appellants.

The facts of the case, as stated in the protest, and as detailed in the decree of Mr. Justice Story, in the Circuit Court (2 Sumner, 213), were: The brig having on board a cargo of rice and cotton, sailed on a voyage from Savannah for Boston, and on the 23d of March, 1828, was stranded on the southwest side of the isl and of Nantucket. On the next day assistance was obtained from the shore, and the anchors were got out and hove tight, in order to start the vessel, but without success. In the course of the forenoon the wreck master came on board, with twenty men, and pursuant to his directions, the deck load was thrown over389*] board. They then hove *the cables again, but with no beneficial effect. They then proceeded to open the hatches and discharge the cargo from the hold; and then hove out the cables again, but to no purpose, as the tide had fallen, and there was a considerable surf rolling in shore.

The captain and crew remained on board that night, and the day following nothing could be done, as the wind blew strong at the southeast, and there was a heavy surf. After the weather moderated, the cargo was, with great difficulty, got on shore. The protest stated that the wind and the surf of the sea had driven the brig so far on shore as to render it impossible to get her off.

It further appeared from the evidence that the place where the brig was stranded was on a sandy beach, about twelve miles distant by sea, and six miles by land, from the town of Nan tucket; and that the brig was at no time high and dry there. The depth of the water about her varied; sometimes it was six feet, and sometimes it was ten feet, and she was at no time of tide out of water. The cargo was discharged in about five days, and the spars, sails, and rigging were then stripped off and carried on shore, and sold in small lots to the highest bidder. After the cargo was sold, the brig be

came loose in the sand, and slewed round, and lay with her broad-side to the shore. She was sold on the 28th of March, by the master, at public auction where she lay, for $127; at the same time the spars, sails, and rigging were sold for $422.40. No efforts appeared to have been made to get the brig off the shore, though she had not then sustained any serious injury. Three intelligent surveyors, at a subsequent period, estimated the repairs of her hull as not exceeding $492.25. The brig was got off by the purchasers soon after the sale, and was carried to the port of Nantucket and there repaired. The whole cost of the brig to the purchasers including the repairs, and outfits to Boston, was represented to have been, $2,494.67; and she was sold under the order of the purchasers, as stated, at Boston, in July, 1828, for $2,736.41."

The case was submitted to the court, on printed arguments, by Mr. Pickering for the appellants, and by Mr. Saltonstall for the ap pellees.

The argument for the appellants stated: The appellants contend that this case was not such as to require or justify a sale of the vessel by the master, upon the alleged ground of necessity, as the owners' agent and the underwriters were in Boston, and there was an easy and regular communication by mail between Boston and the island of Nantucket, where the vessel was ashore; and they might and ought to have been consulted by the master before making such sale.

In cases resting upon the same principles, for example, hypothecation by the master in cases of necessity, the rule laid down by the English courts is that the master can hypothecate only when the vessel is in some other place than an English port. No English *case, [*390 it is believed, can be found, in which the mas ter has been authorized to do it while in England; the English writers consider that every port in England is a home port, and the residence of the English owner.

The learned author (Abbott on Shipping, 123) adds that Ireland has been held to be a foreign country, but that since the union it is doubtful whether the rule is not altered. See, also, the case of The Lavinia, Barclay, before Mr. Justice Washington (1 Wash. C. C. R., 49). So in cases of the lien of material men, the courts of the United States have held that when a vessel was repaired in a port of a State to which she did not belong, there was a lien by the general marine law; but if the repairs were made in her own State, there was no lien, unless established by the local laws of such State. (The General Smith, 4 Wheat., 438; 4 Peters's Cond. Rep., 439.)

As to the necessity of the sale, generally, it is a prominent fact that the vessel was got off very soon after she was sold on the sandy shore. which was a smooth beach without any rocks, and she was immediately repaired and fitted for sea again.

The brig Pearl (2 Sumner's Rep., 217), to which the Circuit Court alludes in giving the opinion of the case at the bar, was stranded nearly in the same place with the Sarah Anu, and lay there through the winter, and was got off in the following spring. Several other vessels which went ashore on the same island have

been got off, as appears by the depositions in

the case.

In the case of Gordon v. The Massachusetts Fire and Marine Insurance Company (2 Pick. Rep., 249), the vessel belonged to Portland, Maine, and was stranded in St. Domingo, and the sale was held justifiable. In Ille v. The Royal Exchange Insurance Company (8 Taunton, 755, cited in the Massachusetts case just referred to), a ship from London took the ground in the River St. Lawrence, below Quebec: but in this case, it is to be noticed that two of the owners resided in Quebec, and the sale was considered to be sanctioned by them; which distinguishes it from the ordinary case of sales by the master upon his own authority | alone. In Hayman v. Molton (5 Esp. Rep., 65), the vessel went from London to Jamaica, where she got aground. In Read v. Bonhom (3 Brod & Bing., 147), a London ship was lost in the East Indies.

The case of Thorneley v. Hebson (2 Barn. & Ald., 513) was that of a New York vessel in sured in London, and, while on her voyage, so much injured by stress of weather that the crew deserted her at sea: she was afterwards taken possession of by ships that fell in with her, and was brought into Rhode Island, about two hundred miles from New York, where the owners resided. She was sold under a decree of the Admiralty Court, for the salvors, at a great sacrifice; and the Court of King's Bench held that the owners at New York were near enough to have acted in the business at the time;" and might have prevented the sale by raising money to release the ship, and therefore were not entitled to abandon to the underwriters; and so the sale was not justifiable.

391*] *In this case (Cannan v. Meaburn et ., 1 Bing., 243) the master sold the cargo, under a decree of a vice-admiralty court in the Isle of France, in order to defray the expenses of repairing the vessel which was "in a sinking state." The court say, "Nothing but an extreme necessity" will justify the sale, &c. This was also a foreign port. The court adopt the reasoning of Lord Stowell, in the case of The Funny and The Elmira (Edw. Admiralty Rep., 117), which again supposes a case where the ship is in a foreign port, where there is no correspondent of the owners, &c.

The leading case of The Gratitudine (3 Rob. Adm. Rep., 240), is also that of a vessel being in a foreign port, and requiring repairs. The master was allowed to hypothecate the cargo. The learned judge (Lord Stowell), in his reasoning on the question of necessity, by way of illustration, puts the case of a ship driven into port with a perishable cargo, where the master can hold no communication with the proprie tor (see p. 259), in which case the authority of agent is devolved upon him, &c. A similar illustration is again put at p. 261, still keeping in view, throughout, the idea of a foreign port as an ingredient in the necessity.

in Massachusetts could be heard from; and it was held that the master had not authority to sell the cargo and break up the voyage, without waiting until the owners and insurers could be consulted. The court in this case lay down the rule that the necessity must be so strong as to leave no alternative to the master. They say, "The courts have endeavored to limit and guard this branch of the mercantile law with the greatest care; the strongest language has been employed," &c.

In Hall v. The Franklin Insurance Company (9 Pick. Rep., 487), the court say, "There must be something more than expediency in the case; the sale should be indispensably requisite. We mean a necessity which leaves no alternative, which prescribes the law for itself, and puts the party in a positive compulsion to act.'

The case of Scull v. Briddle (2 Wash. C. C. Rep., 150) was trover for certain sails, rigging, &c., which belonged to a vessel that was wrecked on the coast of Maryland. The vessel and tackle were sold at a public sale by the master. Mr. Justice Washington laid down the rule of law to be, that in cases of extreme necessity the master may sell in a foreign country rather than let the property perish, but not in the country where his owner lives; and no case of the sort, it is believed, can be shown. Mischievous would be the consequence if such doctrines were tolerated." See, also, the case of The Schooner Tilton, in the Circuit Court of Massachusetts (5 Mason, 46).

*The result of these cases is that [*392 the legal necessity to justify a sale by the master must be something more than a mere moral necessity; it must be such a case of urgency as, in the language of the court in Massachusetts, to leave no alternative;" and the degree of this necessity may be the better understood by the important circumstance mentioned in the leading cases, viz., that the disasters in those cases happened to the vessels while in foreign ports, and where the master had no opportunity of consulting the owners.

Further: it is not enough that the master makes a sale in good faith, although this must accompany the necessity; and this latter must be clearly and indisputably made out. It may be also added that sound policy demands that sales of this description should not be too much encouraged by affording facilities to masters to effect them; especially in cases like the present, where they have the means of consulting their owners in their own State or country.

But if the court should think that the facts prove a case of legal necessity, in respect to the sale of the hull of the vessel, the libelants still contend that there was no such necessity as to the sails and rigging, &c. These had been taken out, as well as the cargo, and had been carried on shore in safety.

tage, or he should have immediately given information of their having been brought on shore, and then waited for orders. If sold at Boston, they would have brought one thousand

dollars, or upwards; as, according to the usual estimate, the sails and rigging, &c., are considered about equal to the value of the hull, or half the value of the entire vessel.

At all events, whatever might have been the value of the sails and rigging, there was no necessity for selling them, as they were already landed, with the cargo; and the master might easily have advised the owners and underwriters, and waited for their orders; which, by the usual course of the mail from Boston to Nan tucket, would have reached him in two days. In point of fact, the libelants did send an agent to Nantucket as soon as the loss was known in Boston, who offered to pay all expenses incurred, &c., if the vessel could be delivered to him; but the sale had already taken place, and the purchasers refused to relinquish the vessel to the agent.

In conclusion, the libelants would respectfully urge upon the consideration of the court the consequences of sanctioning sales of this kind, made under circumstances which do not clearly and unequivocally amount to the strict legal necessity which the courts have required. The greater the facilities that are afforded, the stronger will be the temptation to make such sales fraudulently; and the fraud will be the more difficult of detection in proportion as the 393*] *necessity will be a question to be set tled more by the opinions of the master and other witnesses, than by simple matters of fact. And even in cases where there may be no direct fraudulent intent, the facility of selling will proportionally lessen the efforts of the master and seamen to rescue their vessel from impending danger and loss, and the owners and underwriters will be made to suffer accordingly.

The court must, in this and other cases, give weight to the important considerations of public policy, or expediency, in laying down practicable principles which are to govern the conduct of parties; and it is manifest that far greater mischiefs will follow from allowing facilities in making such sales, especially in home ports, than by rigorously restricting them to cases of absolute necessity-such a necessity as, in the language of the courts, "leaves no alternative."

Mr. Saltonstall, for the appellees, submitted the following points:

1. The sale made by the master was, under the circumstances, justified by necessity. It was made by him in good faith. There was a moral necessity for it. The hazard to which the brig was exposed was so great, the expense that must be incurred in attempting to get her off would be great and certain, and the result of further attempts so uncertain, that the sale was justifiable, and passed the property to the purchasers.

2. The sale was assented to and adopted by Crosby and others afterwards, who thus ratified the act of the master, and their assignees cannot stand in better right than they were.

cepted, relates back to the time when it was offered.

4. The sale by Folger and others to the claimants was made in Boston, July, 1828. The libelants knew the brig was in Boston in May preceding, but gave no notice to the purchasers or their agent, and took no steps to prevent a sale. This, it is contended, is a fraud on the claimants, and a court of equity (which a court of admiralty is, with limited powers) will not aid a party who thus stands by, and, by his silence and inaction, permits another, without notice, to purchase. It is a fraud on the innocent bona fide purchaser. 5. The demand of the libelants is stale, and cannot now be set up and enforced. The vessel was abandoned March 29th, 1828; the libel was not filed until September, 1834, more than six years afterwards.

6. If the sale be adjudged void for want of authority in the master to make it under the circumstances, and not ratified by the acquiesc ence of Crosby and others, with the knowledge of the libelants; if the libelants are not estopped by their silence and inaction, *and [*394 the suit was commenced in due season, then the claimants ask to be allowed the expenses and reasonable reward for their vendors' (the purchasers and salvors) labor and hazard, which amounts to nearly the sum for which she was sold.

1. The first point presents two questions first, as to the authority of a master to sell his vessel, and under what circumstances; second, whether the sale in this case was justifiable.

As to the authority of a master to sell on the ground of necessity, the law has been fully examined in England, and by this court, as well as in Massachusetts, New York, and other commercial States, within a few years, and has been clearly settled.

We believe it to be correctly stated in the opinion of the Circuit Court in this case (2 Sum. R., 206). "I agree at once to the doctrine," says the learned judge (p. 215), 'that it is not sufficient to show that the master acted in good faith, and in the exercise of his best discretion. The claimants upon whom the onus probandi is thrown must go farther, and prove that there was a moral necessity for the sale, so as to make it an urgent duty upon the master to sell, for the preservation of the interest of all concerned. And I do not well know how to put the case more clearly than by stating that if the circumstances were such that an owner, of reasonable prudence and discretion, acting on the pressure of the occasion, would have directed the sale from a firm opinion that the brig could not be delivered from the peril at all, or not without the hazard of an expense utterly disproportionate to her real value as she lay upon the beach, then the sale by the master was justifiable, and must be deemed to be made by a moral necessity. And I consider this to be the true doctrine, deducible from the case of Gordon v. The Massachu

Pick. R., 249), where the subject is examined very much at large, and with great ability."

We believe the doctrine on this subject to be here truly stated, and are willing the conduct of Captain Phillips should be tested by it.

The law on this subject was fully examined

In the case 9 Pick., 466, the sale was not justified; but it was on account of the particular circumstances, as each case indeed must depend on its own circumstances. The ship was on a voyage from Boston to New Orleans; struck on the coast of Florida; was got off, and proceeded to Key West. She did not leak, and might have remained there in safety until notice of the disaster should have been sent to Boston; and after the sale, the vessel in fact 395*] proceeded to *Boston, with the same master, and without any repairs. It was prop. erly held that the sale was not necessary, and that the insurers were not affected by it. Bryant v. The Commoncealth Insurance Company was the case of a cargo insured from Havana to Castine, in Maine; the vessel was wrecked about forty miles from Norfolk, but the cargo was taken from the vessel without damage, and might have been sent to its place of destination for less than fifty per centum of its value; but the master sold it on the beach, and it was held that there was not a legal necessity for the sale.

It is very clear that the sale was not justifiable, according to the doctrine in Gordon's case, and as clear that there is no similarity between the circumstances of that sale and the sale of the brig Sarah Ann. This subject has come under the consideration of this court, and the law is settled on the same principles as in the cases cited. (Patapsco Insurance Company v. Southgate et al., 5 Peters's Rep., 604.)

It can hardly be understood to have been settled in England that a master has authority to sell a ship on the ground of necessity, until the case of Idle v. The Roy. Ex. Ass. Co. (8 Taunt. R., 770, and 3 Moore). In that, and in subsequent cases, it is placed on the same ground as in this country, and that is, the ground of necessity-moral, legal necessity, arising from extreme peril and the danger of delay. It follows necessarily from the relation of the master to those interested, that there must be this authority. It supposes a case of extreme peril. What is to be done? It will not do to wait until the owner can be consulted. There is a necessity for immediate decision and action. In such cases the master may do what he might well suppose the owner would do if present; and, in the exercise of a sound discretion, sell the vessel and appurtenances.

It follows from the principles and the reasons on which this authority rests, that it cannot be affected by the circumstance in what country the disaster happened; whether in a foreign Country or not. There is no case in which it is decided that this authority is limited to cases happening in a foreign country. The question is, in every case, whether there was an urgent

be absurd to say that the master shall not sell, because the vessel, though exposed to immediate destruction, is in the country of the owner's residence. And in a country of such vast extent as ours, the doctrine suggested would be extremely injurious in its consequences. In most of the decided cases, as might be supposed, the stranding happened abroad. In the case of hypothecation, the vessel is supposed to be in safety. The question is as to funds for repairs and outfits, and in such cases it is reasonable that in a country of such limited extent and facility of communication as England, the owner should be consulted. There can seldom be a necessity for instant action. Still Ireland, and it is believed Scotland, are considered to be foreign countries: and it may be remarked that Nantucket is farther from the main land than Ireland is from *England, and that [*396 the owners were five hundred miles from that island, and in another State.

The case of Scull v. Briddle (2 Wash. Cir. R., 150) is very briefly reported, and this point was not essential to the decision, which was mainly placed an another ground.

In Idle v. The Royal Exchange Assurance Company, the decision was not placed at all on the circumstance that one of the owners was present; on the contrary, Dallas, Ch. J., remarked, "I should further say that on the broad ground of a power to act on a sudden emergency, in order to save as much as could be saved from impending ruin, whether the sale be by the owner or the captain will make no difference, if the circumstances justified the selling, and the sale was honestly and fairly conducted." And with another remark of the same learned judge the consideration of this part of the case is closed: "Although general principles are highly valuable when they can be of general and extensive application; yet, from the very nature of subjects of this description, the application of principles, as far as decided cases furnish any rule, must depend up on the circumstances of the particular case.

It is contended that under the law as settled, the sale of the Sarah Ann was proper and justifiable. This makes it necessary to look to the evidence.

Was, then, the sale justifiable? Under all the circumstances, was it necessary for the captain to sell the property? If it was a valid sale, then the title of the claimants is unquestionable. This depends on the state of things at the time. What was the situation of the vessel when the captain despaired of getting her off, and determined to unlade the cargo, to strip the vessel, and to sell the property there? It is necessary to look at the evidence. The depositions, on the part of the claimants are very strong, and we think, conclusive on this question.

As to the main facts, they are uncontradicted; on the contrary, as to the exposure of the brig, &c., they are corrobated by Pease and Gardner, two of the libelants' witnesses. As remarked by the learned judge before whom the cause was tried (2 Sum. R., p. 216), we must look to the state of things as it was at the time of the sale, and weigh all the circumstances; as, the position and exposure of the brig; the season of the year and chance of storms; the