majority concur in desiring any especial employment, this would be a strong prima facie reason in its favor. But if it were made clear to the court that they wished to oppress the minority, or that the employment they proposed was certainly and in a high degree inexpedient, because unsafe and foolish, we know not why they should be bound to give her to the majority for any such purpose. And if the majority would employ her in this way, or not at all, we know no reason why she should not be either sold, or given to the minority, on their security.

It was said, that the majority employing a ship against the will of the minority, must give security for her safe return. The common bond taken in England from the majority goes no further; and it has been intimated in this country, that the recusant part-owner should have no freight, because he makes no advances for outfit, but may have his vessel secured to him, because, as he makes no profit, he should incur no loss. This may be sound doctrine in all of those cases in which the dissentient minority are distinctly in fault. But there may be an honest difference of opinion; and although the majority in that case ought to prevail, we see no reason why the minority should not be paid for the use of their property; and we should expect that our courts would adopt this view in ordinary cases, and not hold themselves bound by any rule in admiralty, to confine the security to the return of the ship.2

1 See Willings v. Blight, 2 Pet. Adm. 288.

2 The question, whether the bond should secure the freight as well as the vessel, is one of importance; and we find no decisive authority to determine it. In The Apollo, 1 Hagg. Adm. 306, peremptory payment of the bond was decreed. "Upon the question of jurisdiction, it is not unimportant to observe, that the court has repeatedly gone the length of taking these stipulations, in favor of a dissentient copartner, and upon his application that a security may be given for the safe return of the vessel from the voyage to which he dissents, or otherwise for the estimated value of his share." Nothing is said about freight. Nor do we know that any admiralty court has declared that the bond may be taken for the freight. The estimated profits of the voyage are a difficult subject of computation, and that is the objection Abbott (p. 102) takes to the remedy proposed by the common-law courts for the use of the ship, by the minority, without their consent. The reason given that "as he bears no expense, he shall have no profit," is hardly logical or sufficient, for from that it would seem, that his right to profits depended on his expenditures for fitting out; but the interest of the money he has invested in the ship is not considered. In Gould v. Stanton, 16 Conn. 12, it was held, that until a dissentient part-owner applies to the admiralty court, he is liable for his proportion of

Of the power of the court of admiralty to decree a sale on a question between part-owners, we shall speak when we consider the subject of The Sale of the ship.1

SECTION II.

OF CONTRACTS OF AFFREIGHTMENT.

Whether goods are carried in a vessel on freight or by charter, the same rules of law are applicable in admiralty, unless the charterer hires the vessel wholly, and mans, equips, and sails her himself. In this case he is his own carrier, and the owner of the vessel has no lien on the cargo for the money due from the hirer, but the charterer himself, being quasi owner, has a lien on the goods of other persons, if he carries them in a ship he has thus hired.2

The first question we shall consider is, as to the jurisdiction of admiralty over questions of freight; then the application of the rules of law to these questions in civil cases; then cases which arise under prize and capture.

In treating of the law of shipping, it was stated that the shipowner has a lien on the cargo for the freight due for carrying it. This is the rule at common law as well as in admiralty, but the latter court by its suits and processes in rem, has a more prompt and effectual jurisdiction in all cases of lien. Originally, the admiralty courts acted principally and possibly altogether in personam, and even now it is admitted that its action in rem is

the expenses already incurred in fitting the vessel out, but after he seeks the protection of the court, he is not liable for any expenses, nor entitled to any earnings.

1 See post, ch. 9.

2 The two kinds of charter-parties are spoken of in our chapter on the law of shipping. See ante, Vol. I. p. 232.

3 In The Sch. Boston, 1 Sumner, 328, 341, it is said, "The proceeding need not indeed be in rem, for if the thing has come to the possession or use or benefit of the owner, a compensation may be equally decreed upon a libel in personam. So is the doctrine in The Hope and The Trelawney, and it is founded in the very nature of the admiralty jurisdiction, which primarily acted in personam; and now acts in rem, only as auxiliary to its general authority." In The Hope, 3 Rob. Adm. 215, the objection to calling the owners to answer personally in a suit for salvage was overruled. In The Trelawney, 3 Rob. Adm. 216 note, it was said in the argument, "The old

subordinate and auxiliary to its general authority, or its action in personam. Nevertheless, it is quite certain that our admiralty courts claim and hold complete jurisdiction in rem as well as in personam over all maritime contracts in which there is any lien, either by force of law, or by an express pledge of the property by way of security. Nor is an actual possession by the officers of the court, of the property libelled, essential to the exercise of this jurisdiction; for the court may order the property into the custody of the law, and will for the purposes of justice presume it to be in that custody unless the contrary appears.2

practice has always been, in the first instance, against the person; and several of the first chapters of Clerke's Practice, direct the proceedings to be against the person." The court said: "As the objection has been pressed, I shall reserve this matter for farther consideration; at present, it may be sufficient to say that the court will be extremely unwilling to hold, that because a salvor has chosen to proceed in the manner most favorable and most accommodating to the other party, he shall be deprived of substantial redress in this court."

In The Meg Merrilies, 3 Hagg. Adm. 346, a monition in personam, was decreed in a suit for salvage. In The Brig Draco, 2 Sumner, 157, 180, Story, J., said: “My own opinion has been long unequivocally expressed, that the admiralty has a rightful jurisdiction over all maritime contracts in personam; but that, in cases of that sort, it cannot proceed in rem, unless there be a maritime lien, or a positive pledge as security."

1 In Sheppard v. Taylor, 5 Pet. 675, it is said, p. 711, "Over the subject of seamen's wages, the admiralty has an undoubted jurisdiction in rem as well as in personam.” See also, The Centurion, Ware, 477.

2 In The Sch. Bolina, 1 Gallis. 75, the court said: "Further; in the admiralty, in all proceedings in rem, the court has a right to order the thing to be taken into the custody of the law, and it is presumed to be in the custody of the law, unless the contrary appears; and when once a vessel is libelled, she is considered as in the custody of the law and at the disposal of the court, and monitions may be issued to persons having the actual custody, to obey the injunctions of the court. The jurisdiction of the admiralty, however, is not founded on that circumstance." (We suppose this means the circumstance of possession.) "It is notorious, that a condemnation may take place in a prize cause, even when the prize is lying within the port of an ally or a neutral, and this right of jurisdiction and condemnation equally applies to municipal seizures, in the name of the sovereign, while the property is in a neutral port. If, indeed, the possession of the sovereign be lost by recapture, or escape, or voluntary discharge, the courts may thereby lose the jurisdiction acquired by the seizure, but such loss is not to be presumed. On the instance side of the admiralty, its jurisdiction is not, in general, founded on possession of the thing. It may exercise complete jurisdiction as to seamen's wages, as to marine torts, as to collisions, and perhaps as to salvage, without it, and rest entirely on the process in personam."

In the case of Jennings v. Carson, 4 Cranch, 2, Marshall, C. J., fully discussed the

That the ship has a lien on the cargo for the freight, is an ancient and a universal rule. And the application of the law of lien to cases of freight, by the rules of admiralty, is, we think, or at least should be, more liberal and less technical than by those of common law. But, while this lien of the ship upon the cargo for its freight has never been denied, there is a great and irreconcilable diversity of opinion as to the origin, the nature, and the principles of this lien. The common-law courts of England have been always disposed to regard it as a mere common-law lien. This we should expect; and the inevitable consequence has been a strong disposition — perhaps a prevailing tendency in our own common-law courts, to follow the English example. But this has led to some difficulties; and some judges refer it rather to the peculiar principles of the law-merchant. These differences are not technical merely or theoretical. They certainly may lead to important results, as they have led to difficult questions. But these questions are due, we apprehend, in some degree at least, to the antagonism between the common law and the Roman civil law.

There may be difficulties in regarding the claim of the ship upon the cargo as precisely a "privilegium" of the civil law, and as we have already said in our first volume, we do not call it a privilegium.1 It certainly, however, was an essential part of the law-merchant before that became a part of the common law of England. And then, and now on the continent of Europe, it was and is distinctly recognized, although the common-law lien is nearly unknown. A privilegium, which is well enough translated by the phrase," a privileged claim," differs from a lien in this; it does not depend in any degree upon possession; that is, it does not require that the creditor should ever have possession of the thing to which he may look for security; nor if he has such possession and loses it, does he thereby lose his security. On the other hand, a lien at common law is simply the right of holding on to something now in possession,

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principle that the vessel when once libelled is in the possession and under the control of the court. After showing that this power is inherent in the courts, and not conferred by statute (as had been contended in argument), he shows that it necessarily results from the constitution and character of a court of admiralty.

1 See ante, p. 125, n. 1.

until some claim or debt connected with that thing is discharged. We do not call this lien of the ship on the goods a "privilegium," because we cannot say that it has no reference, either in origin or continuance, to possession. But neither do we regard it merely as a common-law lien, because we do not consider it as a mere right to retain possession, and as wholly dependent on possession, and as terminated at once and necessarily by the loss of possession.

What are called liens in the law of shipping are none of them, we think, mere common-law liens; or mere continuances of the right of possession. And we have noticed that text writers who in the investigation of the principles which govern them, have gone back to the early or foreign law, adopt perhaps without intention the phraseology there used, and call the liens "privileges," or "privileged claims." Thus, Abbott, in the beginning of the chapter on the ship-owners' lien for freight, speaks of the lien of the cargo on the ship, as ranking "low in the precedence of privileged claims," and to illustrate this, enumerates nearly all the known liens against the ship, ten in number, as of more force; and then speaks of "the privilege" of the ship-owner against the goods for his freight.

This right of the ship-owner to hold the cargo as security for the freight, we hold to be in part a privilegium, and so far not a mere lien; and therefore it is not dependent, necessarily and entirely, upon possession, or the right of possession. And the law-merchant has many such "privileged claims;" as, for example, contracts of bottomry or respondentia. No one would think of calling the rights which these contracts give, merely liens, or of treating them as liens at common law. Nor is there any more reason in the right itself, for calling that of the ship-owner against the cargo, a lien only. The cause of this common error, for we regard it as an error, is quite obvious. The main difference between a privilegium and a lien is, as we have seen, this: the former is not dependent upon possession, but the latter is. Now the contract of bottomry, for example, actually provides that the ship shall go away, out of the possession and immediate reach of the creditor (for which departure it provides the means), and that the debt itself shall be due only on condition that the ship performs the voyage safely. It would therefore be merely absurd to say that the security of the creditor depends in this