owners, so is it by the presence of the ship's husband, or the knowledge of the contracting parties that a ship's husband has been appointed."

Accordingly, it has been held that his powers do not extend so far as to permit him to bind the owners for the cargo purchased for the vessel, that not being considered as a necessity in the course of business.29

The managing owner cannot bind the others in the home. port unless express authority be shown, for the basis of his power is the necessity of the vessel, and in the home port the owners can easily be consulted.3°

Nor can he bind minority owners who have dissented from the use of the vessel for that particular voyage, for, as they cannot, in such case, share in the profits, it would be inequitable to expect them to bear the costs.31

The supplies for which part owners may be bound by their agents are simply those things included in the term "necessaries." In another connection the question as to what constitutes "necessaries" which a captain may order for his vessel has been discussed, and the same test applies here. Reference is made to that discussion.32

The owners are liable not only for contract debts, but also for the torts of the master in the line of his duty, not for those outside the line of his duty. For instance, in The Waldo 3 the owners were held liable for injury to goods

38

29 Ole Oleson (C. C.) 20 Fed. 384.

30 SPEDDEN v. KOENIG, 78 Fed. 504, 24 C. C. A. 189; Woodall v. Dempsey (D. C.) 100 Fed. 653; Besse v. Hecht (D. C.) 85 Fed. 677; Helme v. Smith, 7 Bing. 709, 20 E. C. L. 300; Briggs & Cobb v. Barnett, 108 Va. 404, 61 S. E. 797. This power to bind the owners personally in the home port must not be confused with his power to bind the ship under Act June 23, 1910; ante, chapter iv.

31 FRAZER v. CUTHBERTSON, 6 Q. B. D. 93; Vindobala, 13 P. D. 42; Id., 14 P. D. 50; Scull v. Raymond (D. C.) 18 Fed. 547; Stedman v. Feidler, 20 N. Y. 437.

32 Ante, p. 107.

83 Waldo, 2 Ware, 165, Fed. Cas. No. 17,056. See, also, Taylor

on a vessel while in transit, but not for damages received by their sale and disposition after they had been taken from the vessel; the master, as to these latter transactions, being considered the agent of the shippers, and not of the vessel owners.

The fact that a person appears on the papers of the vessel as owner does not make him liable. As seen above, he is not liable if he has expressly dissented from the voyage. In addition, if the bill of sale or title which he holds is a mere security, as a mortgage in disguise, and he has not the possession of the vessel, he is not liable. The question reduces itself to one of agency. In such case, as he has not possession, he has not the power of appointment or control, and the parties operating the vessel are not his agents. Even if the vessel is run on shares by the master, that does not constitute him their agent. 34

v. Brigham, 3 Woods, 377, Fed. Cas. No. 13,781; ante, p. 215. 84 Myers v. Willis, 17 C. B. (84 E. C. L.) 77; Webb v. Peirce, 1 Curt. 104, Fed. Cas. No. 17,320; Davidson v. Baldwin, 79 Fed. 95, 24 C. C. A. 453; Morgan v. Shinn, 15 Wall. 105, 21 L. Ed. 87.

CHAPTER XVI

OF THE RIGHTS AND LIABILITIES OF OWNERS AS AF-
FECTED BY THE LIMITED LIABILITY ACT

160. History of Limitation of Liability in General. History and Policy of Federal Legislation.

161.

162. By Whom Limitation of Liability may be Claimed. 163. Against what Liabilities Limitation may be Claimed. 164. Privity or Knowledge of Owner.

165. The Voyage as the Unit.

166.

Extent of Liability of Part Owners.

167. Measure of Liability-Time of Estimating Values.

168.

169.

170.

171.

172.

173.

Prior Liens.

Damages Recovered from Other Vessel

Freight.

Salvage and Insurance.

Procedure-Time for Taking Advantage of Statute.

Defense to Suit against Owner, or Independent Proceeding.

174. Method of Distribution.

HISTORY OF LIMITATION OF LIABILITY IN
GENERAL

160. The limitation of owner's liability is an outgrowth of the modern maritime law and codes.

Under the ancient civil law the owners were bound in solido for the liabilities of the ship arising out of contract, and in proportion to their respective interests for liabilities. arising out of tort. This, however, merely settled the question of proportion as between the owners, but not the question of the extent of their liability. There seems to have been no limit on this as respects the value of the vessel. But the importance of encouraging maritime adventures, especially in the Middle Ages, when that was almost the only method of communication among nations, led to the gradual adoption, among the maritime continental codes, of

provisions limiting the liability of the owners to their respective interests in the ship. The greater frequency of maritime disasters in those days of frail craft emphasized the need of such a provision. Among others, we find these carried into the famous marine Ordonnance of Louis XIV, one provision of which is that the owners of a ship shall be answerable for the deeds of the master, but shall be discharged, abandoning their ship and freight.1

In the last century this policy was partially adopted in England, though their act of limited liability was then, and still is, less favorable to the vessel owner than most of the other acts.

The history of the development of this principle of modern maritime law is summarized by Judge Ware in the REBECCA, decided long before there was any federal statute on the subject.

HISTORY AND POLICY OF FEDERAL LEGISLATION

161. The federal statutes are sections 4282-4289, Rev. St., Act June 26, 1884, and Act June 19, 1886. They are designed to encourage shipping by extending all possible protection to vessel owners.

In one sense the Harter Act (U. S. Comp. St. §§ 80298035) is an act limiting the liability of owners. This, however, regulates not so much their liability in amount as the question whether they are responsible at all or not. But the acts immediately in view in the principal connection are rather those limiting the amount of their liability where

§ 160. 1 30 Fed. Cas. p. 1,206.

21 Ware (188) 187, Fed. Cas. No. 11,619.

3 U. S. Comp. St. §§ 8020-8027.

423 Stat. 57 (U. S. Comp. St. § 8028); 24 Stat. 80 (U. S. Comp. St. § 8027);

post, p. 494. post, p. 497.

some liability undoubtedly exists, and not the acts defining whether or not they are liable at all.

The first act above mentioned, now contained in sections 4282-4289 of the Revised Statutes, was passed on March 3, 1851, and is similar to the British statute, although in many respects the act itself and the construction placed upon it by the courts is more liberal to the vessel owner.

The statutes regulating the relation of shippers and carriers were not intended to repeal these statutes pro tanto, or to change their policy.

Policy of the Act

The policy of these acts is explained by Mr. Justice Bradley in NORWICH & N. Y. TRANSP. CO. v. WRIGHT,' a leading case on the subject. In it he says:

"The great object of the law was to encourage shipbuilding, and to induce capitalists to invest money in this branch of industry. Unless they can be induced to do so, the shipping interests of the country must flag and decline. Those who are willing to manage and work ships are generally unable to build and fit them. They have plenty of hardiness and personal daring and enterprise, but they have little capital. On the other hand, those who have capital, and invest it in ships, incur a very large risk in exposing their property to the hazards of the sea, and to the management of seafaring men, without making them liable for additional losses and damage to an indefinite amount. How many enterprises in mining, manufacturing, and internal

So held as to the section of the Interstate Commerce Act which defines the carriers, whether by land or by water, which are subject to its provisions, and also as to the amendment making the initial carrier primarily responsible. 24 Stat. 379 (U. S. Comp. St. § 8563), and 34 Stat. 595 (U. S. Comp. St. § 8604aa); Hoffmans (D. C.) 171 Fed. 455; Burke v. Gulf, C. & S. F. Ry. Co. (Mun. Ct. N. Y.) 147 N. Y. Supp. 794.

713 Wall. 104, 20 L. Ed. 585. See, also, Deslions v. La Compagnie Générale Transatlantique, 210 U. S. 95, 120, 28 Sup. Ct. 664, 673, 52 L. Ed. 973.