Stirling v. Loud

Alvey, J., delivered the opinion of the Court. This is an attachment on warrant against Lawson, the defendant, as á non-resident, and the claim of the appellees is for supplies furnished for the schooner “ L. C. Hickman,” while the defendant was master thereof, and sailing her under a contract with the owners, known as a “lay.” The terms of the contract w'ere, that the defendant as master should victual and man the vessel, and after all port charges were deducted, to, get half the freights. These are the usual and customary terms of such contracts. The existence of the contract was known to the appellees at the time of the sup ⁴³⁹ plies furnished, but the account was kept against the schooner and owners.

The case was tried in the Court below on the pleas of nonassumpsii and nulla bona. It was shown that there w'as a net balance in the hands of the appellants, at the time of laying the attachment, of $1,898.12, for freight due on charter-party, entered into with Lawson in his own name. The freight was reserved by the charter-party to Lawson for a voyage from Baltimore to Humacao, and back. It was also shown in evidence that, at the time of laying the attachment, Lawson, the defendant, was indebted to the owners of the vessel, on account of freights earned, under the contract with them, an amount greater than that due by the appellants on the charter-party.

And it was also in proof that, before the laying of the attachment, the owners, by their duly authorized agent, notified the appellants not to pay the defendant, Lawson, any more of the freight then due, and they agreed that they would not. The defendant was discharged as master of the vessel on the morning of the 17th of March, 1869, and the attachment was laid in the evening of the same day. The Court below, at the instance of the appellees, instructed the jury, that if they found the existence of the contract between the owners of the vessel and the defendant; the indebtedness of the defendant to the appellees; the non-residence of the defendant; the making of the charter-party given in evidence, and that, at the time of issuing the attachment, there was in the hands of the appellants the sum of $1,898.12, due for freight under the charter-party, “ then the verdict must be for the plaintiffs upon both issues.” And whether this instruction be correct or not depends upon the real nature of the contract under which the vessel was let to the master, and the rights of the respective parties thereto. Contracts of the character of the one in question have become quite familiar and of frequent use among those engaged in the coasting trade of this country.

They have, in several cases, been the subject of judicial decision, and their ⁴⁴⁰ nature and qualities have been determined, and the rights and liabilities under them become, to a great extent, fixed and well understood. And as the contract in this case is of the customary nature, without any special provisions in it to distinguish it from others of its ciass, its attributes may be stated to be, that, under it and during its existence, the general owners were required to keep the vessel in repair, but the master had the entire possession, command and navigation of it, with-a right to employ her in such freighting voyages as he should think proper; thus becoming owner of the vessel, pro hao vice, and not a mere agent of the general owners as ordinary masters are. He was to victual and man the vessel at his own expense, and from the gross earnings were to be deducted all port charges, and the residue then to be divided into two equal parts, one of which was to belong to the owners, and the other to the master. This agreement, being indefinite as to its duration, could be terminated by the restoration of the vessel to the Owners by the master, or by their intervention to displace him, at the end of any voyage, but not while conducting a voyage.

This is the exposition of the contract as given by the Supreme Court of the United States, in the case of Thomas vs. Osborn, 19 How., 22 , and it seems to accord with that given in other