he alone is liable for all charges affecting it. This rule as applied to ships has been so far modified as to entitle each part owner to receive his share of the earnings of the vessel, unless he has dissented from the voyage. Prima facie, therefore, the master or ship's husband, or the managing owner, is the agent of all the part owners in the ordinary business of the ship, and all will be prima facie liable for necessary repairs, supplies, and for torts of navigation, because, presumptively, the voyage is for the benefit of all. Eut this presumptive agency and benefit, and consequent liability, may be rebutted by any appropriate proof. And when it affirmatively appears that any one part owner was neither intended to be represented by the master in the navigation of the ship, or in ordering repairs or supplies, and that he never authorized the master to represent or bind him, and that he never ratified or adopted the voyage, but dissented from it, there is no reason or legal principle upon which he can be held for the supplies ordered or for the torts of the voyage. * # * If a part owner expressly dissent to repairs or supplies, he is not personally bound. The implied authority of the master to bind him is in such cases rebutted by proof of the dissent; and, if the material man had no previous dealings with the dissenting owner, the notice of dissent need not even be brought home to him."

After citing several cases in support of the view that owners are not personally bound for supplies unless they expressly authorize them or participate in the profits of the voyage, he says:

"These several classes of cases show one principle running through them all, namely, that the personal responsibility of a part owner does not necessarily attach as an incident to his naked legal ownership, but depends upon the possession, use, and control of the ship."

It does not appear that this case ever went to the supreme court. Thorp v. Hammond, 12 Wall. 410, was decided by the same learned judge, and his decree, confirmed by the circuit court, was affirmed; the supreme court being equally divided. That also was a case of collision. The schooner at fault was commanded, sailed, and exclusively managed by Hammond, one of the owners, under an arrangement made between him and the other owners, whereby he had, in effect, become the charterer, retaining one-half the net freight after expenses were taken out, and paying to the general owners the other half. It was contended that all the general owners were liable for the torts committed by the schooner while she was thus let to charter. The court below was of opinion that they were not. The supreme court was equally divided on that question, but all held that the owner pro hac vice was liable.

Thomas v. Osborn, 19 How. 22, held that the power of a master or charterer or owner pro hac vice to create a lien upon the ship in a foreign port for repairs or supplies was limited to cases of necessity, and that it is the duty of the lender to see that the necessity exists, and that where the freight money was sufficient to pay for repairs and supplies, and might have been commanded for such use if it had not been diverted by the master, with the assistance of the parties making the advances, they had no lien. And that such power in the master or owner, pro hac vice, "does not exist in a place where the owner is present."

The St. Jago de Cuba, 9 Wheat. 416, holds that the necessities of commerce require that, when remote from the owner, the shipmaster should be able to subject the owner's property to liability for repairs and supplies, without which it is reasonable to suppose he

will not be able to pursue his owner's interest, but, when the owner is present, the reason ceases.

We take the true rule, then, to be that in the home port, where the owners are resident and easily accessible, the master, or managing owner or charterer, or owner pro hac vice, cannot purchase supplies that will bind the ship or make the owners personally responsible without some authority, express or implied, and that such authority to the managing owner from the other owners cannot be implied from the mere fact that they are co-owners. "Title has nothing to do with these cases," says Lord Ellenborough in Annett v. Carstairs, 3 Camp. 354. "We must look to the contract between the parties."

In the case before us it is earnestly contended that all the owners are responsible for these supplies-First, because they were charged to the "tug May Russell and owners"; second, because Phillips was registered as the managing owner, and is to be presumed to have had authority to purchase on the credit of her owners such supplies as were necessary and proper for her use. In Beinecke v. The Secret, 3 Fed. 665, supplies were furnished to Murray, Ferris & Co., charterers of The Secret, a foreign vessel, and the goods were charged on the books of libelant to "steamer Secret and owners." It was held that credit was given to Murray, Ferris & Co.; that libelants were put upon inquiry as to the interest of the charterers, and could easily have learned that Murray, Ferris & Co. had no right or power to bind the vessel or her owners for supplies, and had no lien upon the vessel. "A mere charge to the ship on libelant's books," says Judge Brown in The Francis, 21 Fed. 722, "is an inconclusive circumstance, even as regards the libelant's own intention. The usual practice of merchants to make such charges against the vessel indifferently, whether the vessel be in her home port or not, shows that such a charge is very slight, if any, evidence of an actual reliance on the ship. In practice, it is scarcely more than a habit adopted by merchants in order that their books may not tell against them, if, in fact, they would be entitled to hold the ship." As it is not claimed that Koenig or Ford had any knowledge of this entry, it must be regarded as a mere matter of bookkeeping, a self-preserving practice on the part of the creditor, or, at most, as evidence of a secret intention to hold them, which, not being communicated to them, can have no weight as evidence against them.

We have already considered the effect of the registry of Phillips as managing owner, and have determined that that fact alone cannot be looked to as defining the nature and extent of his powers. There is no magic in the term "managing owner," as used in circumstances like these, which would confer upon him powers and rights which otherwise did not exist to bind personally his coowner. The right of one owner to bind another not springing from operation of law, and not being deducible from mere naked proof of title, it was necessary for libelants to prove either authority conferred, or participation in profits, or such a course of dealings as would warrant the inference that authority previously given was

continued, or ratification. No such proof was offered. On the contrary, it may fairly be presumed that credit was given to Phillips alone. There was evidence that, during the time that the supplies were furnished, he was running the vessel on his own account, under an agreement with Koenig that he (Koenig) was not to be responsible for any debts, and Koenig received no part of the earnings during that period. There was no evidence of any act, representation, or course of dealing on the part of Koenig or Ford, or either of them, from which it could legally be inferred that they had clothed Phillips with authority to bind them. They were readily accessible, were seen nearly every day, and nothing was said to them from which they could reasonably infer that any credit was given to Phillips on their account. There are other and special considerations affecting so much of the indebtedness as was contracted prior to August 1, 1893, and as relates to Ford; but our conclusion renders any determination of them unnecessary. The decree of the district court is affirmed.

THE M. M. MORRILL.

WHITE v. THE M. M. MORRILL.

(District Court, D. Washington, N. D. February 5, 1897.)

L. SEAMEN-ASSIGNMENT OF WAGES-PART OWNERS.

Persons employed as hunters for a sealing voyage, by the master, from whom they had purchased interests in the vessel, agreeing that half their wages might be applied to the purchase price, held to be within the protection of Rev. St. § 4536, forbidding the assignment of mariners' wages.

2. SAME-LIEN.

Persons employed as seal hunters, after purchasing interests in the vessel from the master, and giving mortgages thereon for unpaid balances, may, as against the master and other part owners, maintain a suit in rem for their wages.

This was a libel in rem to recover seamen's wages.

G. M. Emory, for libelant and interveners.
James Kiefer, for respondents.

HANFORD, District Judge. In this case the libelant, Charles H. White, and the intervener, S. N. Johnson, are suing to recover money earned by and due to them for their services as hunters on a sealing voyage in the North Pacific Ocean. The case is defended by A. S. Nelson, one of the owners of the vessel, and by Edward Cantillion, who was master of the vessel on the voyage. Cantillion was owner of one-third of the vessel, and he sold his interest to said libelant and intervener, conveying one-sixth to each, for which he received from Johnson $350 and a promissory note for $350, and from White a promissory note for $700; and, to secure payment of said notes, he received mortgages upon the interests of each in the vessel. He also held mortgages from the other owners upon all of their interests. He then entered into a contract with the owners, by which he undertook to furnish supplies for the voy

78 FEDERAL REPORTER..

age, and to go as master, for which he was to be paid a stipulated sum for wages, and also to have a certain amount for each seal skin secured, and one-fourth of the proceeds from all seals which he should kill; and he was to be repaid for his advances for supplying the vessel, with interest. He then hired the libelant and said intervener to go on said voyage as hunters, agreeing to pay them for their services one-fourth of the proceeds of all seal skins which they should secure. them, by which one-half of their earnings on the voyage should be He also made a special contract with applied to pay their indebtedness to him upon said promissory notes. The voyage proved to be unprofitable. Cantillion sold the seal skins secured, and from the proceeds thereof has paid himself his wages in full, and his compensation at the agreed rate for all seals which he individually killed; and after deducting such disbursements, and applying the remainder on account of advances which he made for supplies, there remains due to him a balance of $943.08, and the individual indebtedness of the several owners, secured by mortgages on the vessel, remain wholly unpaid. The libelant acknowledges to have received on account of his wages the sum of $113.02, and there remains unpaid $259. Johnson received on account of his earnings $118, and there remains unpaid $209. These balances Cantillion has taken out of the proceeds from the sale of the seal skins which came into his hands, and claims the right to retain the whole thereof, on account of the indebtedness to him for supplies furnished, and the promissory notes above mentioned.

Section 4536 of the Revised Statutes of the United States makes any contract or agreement in the nature of an assignment of mariners' wages invalid. I hold that these men are mariners, and that their wages are protected by this section,-as much so as if they had shipped for a whaling voyage, or in any other capacity, in the services of a vessel engaged in commerce.

Cantillion and Nelson dispute the right of these men to maintain this suit in rem on the ground that, being part owners of the vessel, they are not entitled to a lien; and in behalf of Cantillion it is especially urged that it is contrary to equity for these men to impair the security which they have given by mortgages upon their interests in the vessel, by enforcing a lien for wages. forbidding an owner of a vessel to claim a lien, to the prejudice The rule of others extending credit to the vessel, is well established by the authorities. Patton v. The Randolph, Fed. Cas. No. 10,837; Petrie v. Steamtug, 3 Fed. 531; The Short Cut, 6 Fed. 630; The Queen of St. Johns, 31 Fed. 24; The Lena Mowbray, 71 Fed. 720. in this case there are no innocent creditors or purchasers to be But prejudiced by the discovery of a secret lien, and I hold that the peculiar facts of this case make the rule inapplicable. When it is said that these men have given the vessel as security for their debts, the argument cuts backward, for it is equally true that Cantillion, by virtue of his authority as master of the vessel, gave the vessel as security for the wages of those whom he employed in her

service, and he also became personally liable to them; and it may well be argued that it is contrary to the principles of equity for him to now impair the value of the security for mariners' wages by enforcing his rights as mortgagee, unless the wages be first paid.

With the acquiescence of all parties interested, the vessel has been sold by the marshal, and Cantillion became the purchaser, for the sum of $1,800; and he is now claiming the proceeds of the sale, after payment of costs, to apply on the indebtedness of the several owners to him; so that, if he should prevail in defeating the libelant and the intervener from recovering their wages, the result of the adventure may be summed up as follows: Cantillion will have the $350 paid by Johnson, and for the balance, of less than $1,000 on account of supplies and the marshal's costs upon the sale of the vessel, will have absorbed the entire earnings of the vessel and her crew, and acquired the vessel itself, and still hold the libelant and the intervener indebted to him for a considerable part of the promissory notes given for the purchase price of their interests in the vessel. All this by his cleverness in persuading these men to purchase his interest in the vessel before hiring them. I consider that the justice of the case requires that these men should receive their wages from the money in the registry, and it will be so decreed.

Against the claim of John Johnson, intervener herein, for supplies furnished, on the credit of the vessel, under contract with Nelson, as managing owner, there seems to be no defense. The decree will also award payment to him of the amount sued for.

THE GLEN IRIS.

BURTIS v. THE GLEN IRIS.

(District Court, E. D. New York. December 2, 1896.)

ADMIRALTY-SALE OF VESSEL-LIEN ON DOMESTIC VESSEL UNDER STATE LAW-COSTS -DISTRIBUTION OF PROCEEDS.

In disposing of the proceeds of the sale of a steam tug plying in New York harbor, against which decrees exceeding in amount such proceeds have been rendered upon default in favor of different parties for seamen's wages, damages for collision, and for repairs, supplies, and wharfage, extending over a year and a half,-the claims of the latter class being made liens under the state law by specifications filed in the county court,-the claims for wages having been first paid in full, and the sum remaining being insufficient for all other claims, priority in the distribution of the remainder was given to those claims for which monthly bills had been rendered and liens obtained within 40 days before the vessel was attached, and before the incurring of the liability for collision. Next in order of payment was placed the claim for damages by collision which had accrued 30 days before the first libel was filed; and the remainder of the fund was applied, so far as it would go, towards liens contracted subsequent to the incurring of liability for damages by collision. The Gratitude, 42 Fed. 299, followed.

On July 29, 1896, Divine Burtis, Jr., filed a libel against the steam tug Glen Iris for repairs, from April 18, 1895, to June 2, 1896, under which the tug was attached, and afterwards, on August 26, 1896, sold for $1,050.