Ingersoll v. Van Bokkelin , 7 Cow. 670 ( 1827 )

Curia, per Sutherland, J.

The plaintiff contends, first, that, -as master of the brig, he had a right to receive the earned by her, with the primage due; and that this .establishes a legal title in him- to the goods in question, to exf¡ent 0f gyCh freight and primage ; and that the defendant cannot avail himself of the legal or equitable claim which Shaw, as the owner of the vessel, might have on the plaintiff, or the persons who originally employed him; and that the evidence in relation to the claims of Shaw, was, therefore, improperly admitted. And, secondly, admitting that this evidence was properly received; and that the defendant is to be considered as representing, or standing in the place of the owner; it is contended that, as master of the brig, the plaintiff had a lien on the goods as well as on the freight, to the extent of the debts, or responsibilities which he may have contracted or incurred on account of the vessel; and that the owner himself is not entitled to the possession of the goods, or to receive the freight, until he discharges such debt or responsibilities.

The freight earned by a vessel, belongs to the owner, and not to the master of the vessel; and though the master has a right to receive or collect the freight from third persons, yet he receives it as the agent, and for the benefit of the owner. And (independently of the question as to the master’s lien for advances made by himself or *others,) payment to the owner is a complete defence against any action brought by the master, on the ground of his right to re■ceive the freight.

So far, therefore, as the plaintiff’s title to the goods in question, is founded on his general authority to receive the freight upon the cargo, of which these goods were a part, and for the security of which they were retained by him, and deposited with the defendant, it seems to be without foundation. As the freight was paid by the owner of the goods, to the owner of the vessel, to whom it would have been the duty of the master to have paid it over if he had received it, the goods were discharged from the lien under which they were originally held ; and the defendant was justified in delivering them to their general owner.

The evidence to establish the title of Shaw, (to whom the freight was paid by Depau,) to the vessel, therefore was properly admitted.

But secondly, the question as to the lien of the master on the goods and freight, for the responsibilities incurred by him at New Orleans, and for his primage, is not, under the circumstances of this case, free from difficulty.

There is no doubt that the owners and master of a vessel are severally and respectively liable, for all necessary supplies and advances furnished for her use on the contract of the master, where there is no special agreement by which the credit is given to either exclusively. Lord Mansfield, in Rich v. Coe et al, (Cow. 639,) thus states the principle: “Whoever supplies a ship with necessaries has a treble security: 1. The person of the master; 2. The specific ship ; 3. The personal security of the owners, whether they know of the supply or not. (And vid. 1 T. R. 109. 1 H. Bl. 116. 2 Str. 816. 9 East, 426. Abbott on Shipping, by Story, 142.) In this case it is not pretended that the credit for the advances made by Wm. Kenner & Co., for the use of the vessel, was given exclusively to the owners, unless the fact of their being the consignees of the vessel, in judgment of law, produces *that effect, and deprives them of the remedy against the master and the ship, which a stranger would, for similar advances, be entitled to. On the contrary, in addition to the general liability of the master, they took from him his individual note for the amount of their account. There can be no question, therefore, of his liability to that extent.

It is conceded that where the master has received the freight, he has a lien on it, and has a right to retain it, to the extent of his claim against the owner, for advances made, or responsibilities incurred by him, for the benefit of the owner during the voyage; and also, that where the owner is insolvent, the master, by giving notice to the consignee of the goods, of his claim against such owner, and requiring him to pay the freight to him to the extent of such claim, acquires a right to the freight pro tanto ; and if the consignee or owner of the goods subsequently pay it to the owner of the vessel, it is a payment in their own wrong; and will not protect them against an action by the master. But it is denied that any case is to be found, in which it has been held that the master has a lien on the goods, in opposition to the owner; and that he can retain them, until the owner settles and discharges his demands against him in relation to the vessel; especially where there is no question of the solvency and responsibility of the owner.

In White v Baring et al., (4 Esp. N. P. Cas. 22,) the master brought an action of ■ assumpsit on a bill of lading, against the defendants as consignees of the cargo, to recover the amount of the freight and primage. The ship besonged to Maillard & Co. She had been chartered on a voyage; and the defendants were consignees for the voyage ; and, as such, liable for the freight. Maillard & Co., the owners of the vessel, became bankrupt during the voyage. The captain, after the voyage w.as performnd, gave notice to the consignees not to pay over the freight to the owners, as he had become responsible for several debts on account of the ship: and, therefore, ^claimed to be paid the freight, for the purpose of discharging those debts, as well as the primage which was due to him. Hotwithstand» ing such notice, the defendants paid over the amount of the freight to the owners, Maillard & Co. Lord Kenyon, at nisiprius, held that the plaintiff was entitled to recover. He remarked that the captain, by having made himself liable for articles furnished to the ship, thereby acquired a lien on the goods as well as the freight; and that his lien was co-extensive with his liability to the ship’s creditors. He seems to have put his opinion upon general principles, and not to have attached any importance to the circumstance of the bankruptcy of the owners.

The principle that the master has a lien on the freight, for the purpose of covering all necessary disbursements made by him, or responsibilities incurred in the course of the voyage, and that he can enforce it by retaining the goods until the freight is paid, was distinctly asserted by the supreme court of Massachusetts in the following cases Lane v. Penniman et al, (4 Mass. Rep. 92 ;) Lewis v. Hancock & Winslow, (11 Mass. Rep. 72,) and Cowing v. Snow, (11 Mass. Rep. 415.) In Lewis v. Hancock, Sewell, Ch. J., says, the master may he understood to have the same right in the freight money, which a factor or consignee has in the goods of the principal, or consignor, for whom money nas been advanced, or any responsibilities incurred, in consequence of the employment or consignment; and he observes, that the master of a vessel in a foreign port, and at home after a voyage performed, has many liabilities from which he has cause to protect himself, by insisting on his right to collect the freight money ; and he is to be considered as having an implied promise from the freighters to pay it to him.

The same general principles in relation to the powers and rights of a master, are recognized by this court in Milward v. Hallett, (2 Caines, 77;) and in Hodgson v. Butts, (3 Cranch, 140, 158,) the supreme court of the United States held that the master of a vessel had a right, as the general creditor of the owners, to retain freight as *against them, or their assignees. (And see Abbott on Ship. Story’s ed., 150, n. (2.)

The owner, Shaw, having received the freight, it is not for him to say that the advances at ISTew Orleans were not made on his account, or for his benefit, but on account of Driggs, who had improperly, or, at least, illegally obtained the control and possession of the vessel. They were made for the benefit of the owner, whoever he might be, and Shaw has received the benefit of them. The admiralty suit only determined the right of Shaw, to" the possession of the vessel. It established his right as owner, but did not exonerate him from any of the ordinary responsibilities incident to the character of owner.

The plaintiff never parted with the goods so as to relinquish his lien on them for the freight. They were delivered to the defendant for safe keeping, or storage only. He was the mere agent of the plaintiff, and held them for him.

If then the plaintiff had a lien on the freight, which he had a right to enforce by retaining the goods until it was paid to him, which the cases seem to establish, he had a special property in them, which will enable him to maintain this action against the defendant.

All the cases agree that the legal liability of the master for advances made by third persons on account of the vessel, is sufficient to create a lien in his favor without any actual advances made by himself.

Oldham was a competent witness. He was one of the firm of Kenner & Go., who made the advances for the vessel at New Orleans, and to whom the plaintiff gave his note for the amount; but whether the plaintiff recovers or not in this suit, cannot affect their rights, or his liability It may have an effect on the ability of the plaintiff to pay his note; but that does not affect the competency of the witness, though it may go to his credit.

The plaintiff therefore is entitled to recover the amount of the disbursements at New Orleans, for which he gave his note, which, in his bill of particulars, are stated at $1040 30 ; his primage at 5 per cent, on 1800 dollars, the *amount of the freight; and his wages at 40 dollars per month, from June 3d, 1822, when he took command of ,the vessel, to the termination of the voyage; but when that was, does not appear from the case.^(a)

The verdict in pursuance of the stipulation in the case, is to be modified accordingly.

Eule accordingly.

(a) And so note a case, where, in trover, the plaintiff does not recover damages according to the value of the goods converted; but according to the worth of his special property in them. It was not pretended but that the value of the 50 hogsheads of tobacco would cover the master’s claim for liabilities, primage, &c.; otherwise, as the measure of damages ought not to exceed the entire value of the goods, with interest, in any case, the recovery, it will be seen, may be short of the amount of debt with which they are charged; and will then rest on the common ground, the general market value.

Another distinction should likewise be observed, between trover to enforce a lien against the general owner, or one converting the goods by his direction; and the like action against a stranger. In the latter case, the creditor may recover the fall value, though exceeding his lien; and then stand a trustee for the general owner, as to the balance; but when the action Is against the general owner, or one acting under him, the creditor can recover only according to his special interest. This just distinction was raised, commented and acted upon in Lyle v. Barker, (5 Bin. 457, 60,) where it is shown to be very ancient.