doubts whether the master has authority, even in a case of consummate distress, and in a foreign port, to bind the owners beyond the value of the ship and freight. But he admits, in that case, after an admirable discussion of the principles and authorities in the marine law on the subject, that the master has power to hypothecate the cargo in a foreign port, in a case of severe necessity, for the repairs of the ship, and that the Court of Admiralty would enforce the lien. However, from the cases already referred to, it would seem to be settled in the English and American law, that the owner may be personally bound by the act of the master, in respect to the repairs and supplies necessary for the ship while abroad, and without other means to procure them; and if the owner be personally bound, it must be, as it was in the Roman law, to the extent of the requisite advances. Emerigon, while he admitted that the master might hypothecate the ship and sell the cargo, to raise money to meet the necessities of the ship, denied that he could bind the owners personally by a bill of exchange drawn on them for the moneys raised. But Valin held otherwise; and Boulay Paty is of opinion, that the new code gives the captain a discretion on this point, and he concurs with Valin and the ancient nautical legislation. (b) It has been a question of some doubt, and even contrariety of opinion in the books, whether the master had a lien on the ship or freight for his wages, supplies, or advances on account of the ship, either at home or abroad. But the question appears to be now clearly and definitely settled in England, that the master contracts upon the credit of the owners, and not of the ship, and he has no lien on the ship, freight, or cargo, for any debt of his own, as for wages, or stores furnished, or repairs done at his expense, either at home or on the voyage. The principle was set- *166 tled by Lord Mansfield, in the case of Wilkins v. Carmichael, (a) against the master's claim to a lien on the ship for wages, or money expended for stores, or repairs done in England, and it * (b) 2 Emerigon, 458; Valin's Com. tit. Du Capitaine, art. 19; Boulay Paty, tom. ii. 73, 74. There is a difference in the foreign ordinances and among the foreign jurists, on the question whether the owners of the goods sold during the voyage, for the necessaries of the ship, when the ship subsequently perishes in the voyage, by reason of which all remedy upon the ship is gone, have a remedy against the master or owners of the ship personally. Mr. Justice Story, in Pope v. Nickerson, 3 Story C. C. 493, 494, concludes, that in justice the owners ought to be personally bound for the contracts of the master, not exceeding their interest in the ship and freight. (a) Doug. 101. was there shown to have been the previous law and usage. (b) It was afterwards solemnly adjudged, in Hussey v. Christie, (c) that the master had no lien on the ship for money expended, or debts incurred, for repairs made to it on the voyage; and in Smith v. Plummer, (d) it was decided by equal authority, that the master had no lien on the freight for his wages or disbursements on account of the ship during the voyage, or for the premiums paid by him abroad for the purpose of procuring the cargo. The captain is distinguished from all other persons belonging to the ship, and he is considered as contracting personally with the owner, while the mate and mariners contract with the master on the credit of the ship. The rule has its foundation in policy and the benefit of navigation, and it would be a great inconvenience, if, on the change of captain for misbehavior, or any other reason, he would be entitled to keep possession of the ship until he was paid, or to enforce the lien while abroad, and compel a sacrifice of the ship. (e) Sir William Scott, in the case of The Favorite, (ƒ) observed, that it had been repeatedly decided, that the master could not sue in the admiralty for his wages, because he stood on the security of his personal contract with his owner, not relating to the bottom of the ship. The language of the case of Smith v. Plummer was equally that he had no lien on the cargo for money expended, * or debts incurred by him for repairs, or the necessary pur*167 poses of the voyage. He can hypothecate and create a lien in favor of others, but he himself must stand on the personal credit of his owners.1 (b) Ragg v. King, Str. 858; Read v. Chapman, Ibid. 937 ; Atkinson v. Cotesworth, 3 Barn. & Cress, 647; Richardson v. Campbell, 5 B. & Ald. 203, note; Gibson v. Ingo, 6 Hare, 112; Johannes Christoph, 33 Eng. L. & Eq. 600. (c) 9 East, 426. Contra, Watkinson v. Bernardiston, 2 P. Wms. 367, and Lord Eldon's opinion; Abbott on Shipping, 5th Am. edit. Boston, 1846, p. 185; but see infra, pp. 169, 171. (d) 1 B. & Ald. 575. See, also, to the same point, Atkinson v. Cotesworth, 5 Dowl. & Ry. 552; and Bristow v. Whitmore, 4 De G. & J. 325. (e) Lord Mansfield, in Wilkins v. Carmichael, Doug. 105. (f) 2 Rob. Adm. 232. 1 But now, by statute in England, masters have the same liens for wages as seamen. 17 & 18 Vict. ch. 104, § 188, § 191; O'Dowd, Merch. Ship. Amend. Act, 1862, Appendix, lxxiii. And the lien so given may be enforced in the Admiralty Courts of the United States. The Havana, Sprague Decis. 402. See Stainbank v. Fenning, 11 C. B. 51; Do. v. Shepherd, 13 C. B. 418, in which the authority of the master to hypothe cate the vessel and bind the owners personally is denied. The doctrine before us in the English law remains yet to be definitely declared and settled in this country. The case of the ship Grand Turk (a) is a decision in the Circuit Court of the United States for New York, on the point, that the master's wages and perquisites were no lien on the ship; and it was so ruled, also, in Fisher v. Willing. (b) In those cases, the English authorities were reviewed and cited by the court, and the principle advanced in them was not questioned, and seemed to be assumed as settled law. But in the case of Gardner v. The Ship New Jersey, (c) it was rather loosely mentioned, that the master's claim for disbursements abroad was a lien on the ship; and more recently, in the Circuit Court of the United States for Massachusetts, (d) the rule was laid down that the master had a lien upon the freight for all his advances and responsibilities abroad upon account of the ship, and it seemed to be the strong inclination of the court to acknowledge the master's lien on the ship for the same object. The question, therefore, though considered to be settled in England, is still a vexed and floating one in our own maritime law. (e) (a) 1 Paine C. C. 73. (d) Ship Packet, 3 Mason, 255. (e) In the case of The Ship Packet there is no reference to the decision in Smith v. Plummer, though that decision contained a critical review of all the authorities, and put at rest, in Westminster Hall, the very point as to the lien on freight, and in opposition to the rule laid down in The Ship Packet. In Ingersoll v. Van Bokkelin, 7 Cowen, 670, 5 Wendell, 315, S. C., it was decided, after a review of the American authorities, that a master had a lien on the freight and cargo for his necessary advances made, and responsibilities incurred, for the use of a ship in a foreign port. The same principle had been previously assumed and declared by the Supreme Court of Massachusetts, in Lane v. Penniman, 4 Mass. 92; Lewis v. Hancock & Winslow, 14 Ibid. 72; Cowing v. Snow, Ibid. 415; and was also declared by the Supreme Court of New Hampshire, in Shaw v. Gookin, 7 N. Hamp. 19; Newhall v. Dunlap, 14 Maine, 180; Ex parte Clark, and In re Healey, Sprague Decis. 69, 71, note and cases cited; Sturtevant v. Brewer, 4 Bosw. 628. The general current and language of the American cases seem now to have settled the question, that the master has such a lien for his advances and responsibilities as against the owner, though there should be no question as to the owner's solvency and personal responsibility. The American cases have taken the most reasonable side of the question. In Drinkwater v. Brig Sparton, Ware, 149, it was adjudged, in the District Court of Maine, after a full and learned examination 2 See Ex parte Clark, and In re Healey, Sprague Decis. 69; The Larch, 2 Curtis C. C. 427. *168 *The civil law, and the law of those countries which have adopted its principles, give a lien upon the ship, without any express contract for such a claim, to the person who repairs or fits out the ship, or advances money for that purpose, whether abroad or at home. (a) The English law allows of of the cases, that the master had a lien on the freight for his necessary disbursements for incidental expenses, and the liabilities which he contracts for these expenses during the voyage, and also for his own wages. But, by the case of Ingersoll v. Van Bokkelin, as settled in the Court of Errors of New York, the English law was recognized, tha. the master had no lien on the freight, nor on the vessel, for his wages. See, also, to S. P. Phillips v. Scattergood, Gilpin, 1; Steamboat Orleans v. Phoebus, 11 Peters U. S. 175.3 By the general maritime law, every contract of the master within the scope of his authority, as the contract of affreightment by charter-party, or bill of lading, binds the vessel, and gives the creditor a lien upon it for his security. The Paragon, Ware, 322. It seems at length to be the established doctrine in this country, that the master can sue in the Admiralty in personam, and, to a qualified extent, in rem, when he has a lien on the freight, or on any fund in court. Willard v. Dorr, 3 Mason, 91; Hammond v. Essex F. & M. Ins. Co. 4 Ib. 196; The Brig George, 1 Sumner, 151, 157; Drinkwater v. The Brig Spartan, Ware, 149; Abbott on Shipping, 5th Am. edit. Boston, p. 781. (a) Dig. 14, 1, 1; Ibid. 42, 5, 26, 34; Voet's Com. 20, 2, 29; Casaregis, Disc. 18; 1 Valin's Com. 363, 367. The new French code, art. 191, gives the order of privileged debts which are liens upon the ship, and take preference of each other, and to all other debts, in the order in which they are placed. The first four items which have preference, relate to costs of suit and port charges, as, (1.) Legal costs; (2.) Pilotage; (3.) Expenses of guarding the vessel; (4.) Storage. Then follow, (5.) The expenses of repairing the vessel at the last port. (6.) Wages of the master and crew in the last voyage. By the Consolato, and the ordinances of Oleron, and of 1681, the wages of sailors, for the last voyage, had the preference over all other claims. (7.) Moneys borrowed by the captain in the last voyage for the necessary expenses of the ship, and the reimbursement of the price of the goods sold by him for the same object; if the captain made successive loans, or sales of cargo, from necessity, the last loan and sale, in point of time, is preferred, if made at a different port. (8.) Debts due to the vendor, material men and shipwrights, if the ship has not made a voyage, and to those who furnished stores and necessary supplies before her departure, if she had already made a voyage. The Consolato and the ordinance of 1681, gave those creditors a preference to all others. The vendor loses his preference after the ship has sailed. (9.) Sums lent on bottomry for the reparation and equipment of the vessel before her departure. (10.) Premiums of insurance on the ship for the last voyage. Code de Commerce, art. 191; Pardessus, Droit Com. tom. iii. n. 954; Boulay Paty, Cours de Droit Com. tom. i. 110-124. When the master is ready to sail, the ship is not liable to attachment, except for debts relative to the voyage about to be commenced. Pardessus, Droit Com. tom. iii. 32. 8 Tisdale v. Grant, 12 Barb. (N. Y.) 411; The Larch, 2 Curtis C. C. 427; Revens d. Lewis, 2 Paine C. C. 202; Steamboat Superior, 1 Newb. Adm. 176; Hopkins v. ForByth, 14 Penn. State, 34; Richardson v. Whiting, 18 Pick. 530; The Havana, Sprague Decis. 402. * such a lien, from the necessity of the case, for repairs *169 and necessaries while the ship is abroad;1 but it has not adopted such a rule as to repairs made, and necessaries furnished to the ship while at home, (a) except it be in favor of the shipwright who has repaired her, and has not parted with the possession. In that case, he is entitled to retain possession until he is paid for his repairs. But if he has once parted with the possession of the ship, or has worked upon it without taking possession, he is not deemed a privileged creditor having a claim upon the ship itself. (b) In this country, it was formerly, and rather loosely declared, in some of the admiralty courts of the United States, that the person who repaired, or furnished supplies for a ship, had a lien on the ship for his demand. (c) But the doctrine was examined, and the rule declared, with great precision, by the Supreme Court of the United States, in the case of The General Smith, (d) and reasserted in the case of The St. Jago de Cuba. (e) The rule of the English common law (f) is explicitly adopted, that material men and mechanics, furnishing repairs to a domestic ship, have no particular lien upon the ship itself, or its proceeds, in court, under a decree and sale, for the recovery of their demands, with the exception of the shipwright who has possession of the ship. As long as he retains possession, he has a lien for his (a) Watkinson v. Bernardiston, 2 P. Wms. 367; Buxton v. Snee, 1 Vescy, 154; Ex parte Shank, 1 Atk. 234; Wilkins v. Carmichael, Doug. 101; Hussey v. Christie, 13 Vesey, 594; S. C. 9 East, 426. (b) Franklin v. Hosier, 4 B. & Ald. 341; Ex parte Bland, 2 Rose, 91. Abbott on Shipping, part 2, c. 3, secs. 9-14, contains a history of the English cases on the point. The rule is settled in Scotland in perfect conformity to the English law. See Hamilton v. Wood, and Wood v. Creditors of Weir, 1 Bell's Commentaries, 527, who says that the deviation in England from that maritime rule which prevails with other nations has proceeded rather from peculiar notions of jurisdiction than from any general principle of law or expedience, and that it has been established in Scotland by mere adoption. (c) Stevens v. The Sandwich, District Court of Maryland, 1 Peters Adm. 233, note; Gardner v. The Ship New Jersey, Ibid. 223. (d) 4 Wheat. 438. (e) 9 Wheat. 409. See, also, Peyroux v. Howard, 7 Peters U. S. 324, S. P. (ƒ) Buxton v. Snee, 1 Vesey, 154; 3 Knapp, 95. 1 As to the kind of services and supplies for which there may be a libel in rem or in personam, see The Amstel, 1 Blatch. & Howl. Adm. 215; Bark J. Cunard, 1 Olcott Adm. 120; The Harriet, 1 Olcott Adm. 229; Bradley v. Bolles, 1 Abbott Adm. 569. 2 See Folsom v. Mer. Mut. M. Ins. Co. 38 Maine, 414. Whether a ship is foreign or domestic, depends generally upon the residence of her owners and not upon the port |