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civil and maritime, the authority to enforce a maritime lien by process in rem. The only point, therefore, to be considered in this stage of the case, is, whether, by the maritime law, a lien or privilege exists against the ship for the non-performance of the contract entered into by the captain in a bill of lading.
On the one side it is contended that this is against the principles of maritime law, incorporated from time immemorial into the customary law of the sea, and resting for its authority on those usages and customs which form the basis of that universal marine law which is common to all commercial and maritime nations; on the other side the universality of this principle is denied, and it is argued that if any such rule exists, it exists only as the particular law of particular countries, deriving its authority, not from the general customs of the sea, but from local usages or special acts of legislation.
The authority principally relied on at the argument in support of the lien, is Abbott on Shipping. He says the ship and freight, and therefore indirectly the owners, to the amount of the value of the ship and freight, are, by the marine law, bound to the performance of the charter-party.' p. 93. He quotes, in support of the principle, the words of Cleirac in his Commentary on the laws of Oleron, commonly referred to in support of this rule of the marine law. By custom the ship is bound to the merchandise, and the merchandise to the ship. Us et Coutumes de la mer, p. 72; id. Navigation des rivieres. 12, p. 503. Abbott afterwards adds, 'It is true, indeed, that this principle of the maritime law, by which the ship itself in specie is considered as a security to the merchant who lades goods on board of it, cannot be carried into effect in this country, because the court of admiralty, in which alone proceeding can be carried on against the ship, has no jurisdiction in such a case.' In a subsequent part of his work he recurs again to this principle. But, says he, although the ship and freight are by the terms of the charter-party expressed to be bound to the performance of the covenant on the part of the owners or master, and this is conformable to the maritime law, yet, as before observed, there does not appear to be at present any mode of obtaining in this country the benefit of the security of the ship itself in specie for the performance of such a contract made here.' p. 170.
It is difficult to find language more clear and explicit than that employed by the learned author on this subject, or to express a rule of law in terms less doubtful or equivocal. He states it as a rule, not only of the general maritime law, but also of the maritime law of England, and to which the common form of the charter-party used in that country, is conformable. Can any one doubt that if the court of admiralty was permitted to take jurisdiction of the subject matter, it would give the proper remedy? It appears, if we are to take the law on Abbott's authority, that he leaves no room for doubt on the subject. It is true that the only authority he cites for the rule is Cleirac. On a question of the ancient customary law of the sea, a name of greater weight will not be readily found, even if it should stand alone. But this principle does not rest solely on his authority. One branch of the rule which he lays down, that is, that the master has a lien on the merchandise for his freight, expressed in the epigrammatic terms, that the merchandise is bound to the ship, is familiarly known and practised upon by every ship-master. That the other is not of such constant and familiar practice is admitted. In the first place the occasions for its application are comparatively rare; and in the second, in England, to whose authors and courts we have heretofore been in the habit of looking with too exclusive an eye for our maritime, as well as our common law, admitting the lien to exist as a rule of law, it lies dormant and barren for the want of a court to enforce it. The courts of common law prohibit the admiralty, the only court which can give a remedy, from taking cognizance of the case. deeply rooted is this principle in the living spirit of the marine law, that even in England, long after it has ceased to be of
any practical use for the want of an appropriate process to enforce the lien, we find the principle itself acknowledged by her most learned and popular authors on maritime law, and preserved by a silent but most expressive tradition, in one of the most common instruments in use in commercial transactions.
The rule by which the ship is bound to the merchandise, appears to be of equal antiquity with that by which the merchandise is bound to the ship. Cleirac puts them both into the same sentence, and speaks of them as an ancient custom. By custom, says he, the ship is bound to the merchandise. He might well speak of the custom as ancient, even at that period, for we find the same principle in that venerable compilation of maritime
law, the Consulate of the Sea, which existed several centuries before his time. In the chapters 58 and 63, it is said that if any part of the cargo is lost or damaged by bad stowage or the insufficiency of the vessel, the captain shall bear the loss; and if he is unable to pay, the ship shall; and if the ship is sold, the merchants shall be preferred to all other creditors, except the seamen for their wages.
The principle of reciprocal liens, of the cargo on the vessel, and the vessel on the cargo, is established by the Ordonnance de la marine of Lewis 14, l. 3, tit. 1, art. 11;l. 1, tit. 14, art. 16, and is preserved in the Code de Commerce, 191, n. 11. 280. But this was not the introduction of any new and peculiar principle into the maritime code of France. It was merely sanctioning, by a formal act of legislation, what had existed as customary law from time immemorial, and so it is considered and treated by the commentators on the ordinance and the code. 1 Valin, 629, 363. Emerigon, c. 12, s. 3, in commenting on 1. 1, tit. 14, art. 16, Saisie des vaisseaux, which contains an enumeration of certain privileged credits, including the one now under consideration, says that the article neither creates any new privilege, nor takes away any that existed before ; la disposition n'est ni taxative ni exclusive. But he criticises and censures the order in which the privileged creditors are marshalled, contending that the merchant, for the loss or damage of his goods, ought to have the first, instead of the fourth rank, which is assigned to him by the Ordonnance. “It seems,' says he, “that the privilege of those whose merchandise has been lost or averaged by any other cause than the dangers of the seas, ought to be placed in the first rank, even before the seamen, since such losses and damages proceed often from the act of the crew; and it would be still more equitable to give to the merchant shippers preference over those who have loaned money on the ship before her departure, because the shippers are ignorant of the supplies and loans, which may have been made in the place of outfit.' Contrats a la Grosse, ch. 12, sect. 14.
Whatever may be thought of Emerigon's criticism of the arrangement of privileges by the Ordonnance, there can be no doubt that he considered the lien in question as existing independently of it by the general marine law. Boulay Paty, the most approved commentator on the maritime part of the Code de Commerce, in his remarks on
this article, says "this rule is very ancient in the usages and customs of the sea.' Cours de Droit Maritime, vol. 2, 297; see also vol. 1, 149, &c. It appears to me that these authorities justify the opinion that this rule exists as a part of the customary law of the sea, independently of all local or particular legislation, and that it rests for its authority on the same basis as the greater part of the maritime law of this country, the customs
of maritime commerce. But the authorities, if I have a right view of the law, do not stop here. There is another light in which the subject may be viewed, which, if it be not decisive, is at least entitled to much consideration, when the question is regarded as one resting on the general principles of maritime law. By the civil law, which in this particular is followed by the common law of England, the owner or exercitor is bound by all the acts of the master falling within the range of his authority. Omnia enim facta magistri debet præstare, qui eum præposuit. Dig. 14. 1, 5.; ejus rei nomine cujus ibi præpositus fuerit. D. 14. 1. 7. If there were several creditors each was bound in solido, to the full extent of the obligations contracted by the master, D. 14. 1, 25; the equitable principles of the civil law, on the revival of commerce and civilization, impressed themselves strongly on the maritime law of the middle ages. But in borrowing this principle from the Roman law, the maritime nations of Europe generally, with the exception of England, adopted it with a qualification. They held the owners bound severally in solido for the acts of the master, but limited the extent of their responsibility to the value of the vessel. Each might be proceeded against separately, and each was bound to the full value of his share in the vessel, but for nothing further. That such was the law of the Mediterranean, appears clearly from the Consulate of the Sea. In that case it is said that the interest of the owners in the ship is bound for the payment of the obligations contracted by the master, but that he has not the power to bind their other property without a special procuration for that purpose. Consulat de la Mer, sect. 45, 46; Boucher's Transl. Again ; if the master borrows money in a place where the owners do not reside, and the vessel
lost before the loan is paid, the owners are not bound to pay the creditor any thing; it is enough for them, says the Consulate, that they have lost their vessel. The ancient law of Holland
limits the responsibility of owners in the same manner to their shares in the vessel. Voet ad Pandecta, 1. 15. 1,5. Kuricke, Quæst. illust. 20. p. 276. Loccennius De jure maritimo, l. 3. c. 7, s. 10. Vinnius in Peckium, note, p. 155. The same limitation of responsibility is established by the statutes of Hamburgh. Kuricke in jus Mar. Huns.; tit. 6. art. 3, p. 766. And, according to Emerigon, such is the principle established generally by the jurisprudence of the north of Europe. Contrats a la Grosse ; ch. 4. s. 11. The commentators on the Ordonnance of the Marine were divided in their opinions as to the true construction of second article of Book 2. tit. 8; which renders the owners responsible for the acts of the master, but discharges them on their abandoning the vessel and freight. tended that the owners were liable to the full amount for all the contracts of the master, and that the Ordonnance limited their responsibility only in regard to obligations arising from his negligence or faults. Vol. 1, 562. Emerigon and Pothier held that the limitation applied to their responsibility for contracts as well as faults. Contrats a la Grosse, ubi supra ; Traité des Obligationes, n. 451. Traité des Charte-parties. The Code de Commerce has left this question where it was left by the Ordonnance, merely copying its words. Boulay Paty, in his Cours de Droit Maritime, tit. 3. s. 1; vol. 1. p. 269, adopts the opinion of Emerigon and Pothier. He has examined the questions with his usual ability and more than his accustomed care, and concludes the discussion by asking, 'can a doctrine established for so long a time, attested by so great a number of jurisconsults, and followed in all maritime Europe, be at this time seriously brought into controversy ?'
If it be assumed as an established principle that, by the general maritime law, the responsibility of the owners for the acts of the master, is limited to the value of the vessel and freight, and that by abandoning them to the creditor they may withdraw themselves from their obligation, what is the natural consequence of the principle? Is it not to render the ship herself liable to the creditor in specie? So I understand the law, and such, as I understand it, is the doctrine of the books. Emerigon, in the chapter already quoted, says that the obligation of the owners is rather real than personal, and the language of the Consulate of the Sea is express, that, if the master does not pay the creditor,