particular state, or, if not, the law of the flag, if it arose on the high seas. 15. Collisions.-A common class of actions in the admiralty arising in tort are cases of collisions between vessels. The law applicable to them is now very largely governed by the rules for preventing collisions at sea, adopted by Congress. 16. Jurisdiction of liens for repairs and supplies. -Although all incidental controversies growing out of the building of a ship are not subjects of admiralty jurisdiction, the rule is entirely different in respect to repairs and supplies furnished to a ship after it has been launched. The general rule of the admiralty is that the cost of repairs, supplies, or necessaries furnished to a vessel in a foreign port, on the order of the master, in the absence of the owner, creates a maritime lien on the vessel, in the absence of an explicit agreement to the contrary.19 The test of the master's power to create such a maritime lien is the necessity for the repairs and supplies. This power of the master, however, is a power implied as agent of the owner in the owner's absence, and therefore, if the owner is present in the foreign port, the master has no such implied power.20 In any case, an owner may bind the vessel by agreeing with the materialman that the expenses shall be a lien on the vessel. A foreign port is not simply a port of a foreign country, but the ports in each state in this country are foreign to each other.21 These maritime liens take 19 The Kalorama, 10 Wall. 204 (U. S.). 20 The Valencia, 165 U. S. 264. 21 The Kalorama, 10 Wall. 204 (U. S.). precedence of common law liens on the theory that, being intended to keep the ship going, they are for the benefit of other liens, as tending to the preservation of the res (thing). Therefore, a lien for supplies, even if not recorded, takes precedence of a prior recorded mortgage. Such claims are sometimes lost by delay in enforcing them. The doctrine of stale claims is stronger in the admiralty than in other branches of the law. Claims based on unrecorded maritime liens are held stale after a short time. As short a delay as three months has been held to render a claim stale as against an innocent purchaser. Not only has a materialman or supply man a lien for materials or supplies furnished, but also anyone who advances money on the credit of the vessel for the purpose of paying for such necessaries has a similar lien; but moneys advanced for other purposes, such as loans to the master for the payment of claims not maritime, create no such lien. The term "necessaries" includes such supplies and repairs as are necessary for the use of the ship. It does not include things which may be necessary in order to use the ship or save her from danger; for instance, seamen's wages, towage, or salvage. 17. The Act authorizing a lien for supplies in a domestic port.-Until the Act of June 23, 1910, authorizing a lien for supplies or other necessaries furnished to a domestic vessel, there was no implied lien on such domestic vessel for supplies. This Act authorizes a lien for supplies furnished in a home port, to the same extent as when furnished in a foreign port. 18. Bottomry and respondentia bonds.-Almost identical with the maritime lien created by the furnishing of supplies or necessaries is the lien created by bottomry and respondentia bonds. A bottomry bond binds the ship, or the ship and cargo. A respondentia bond binds the cargo only. The requisites for the validity of a bottomry or respondentia bond are that it be given in a foreign port for repairs, supplies, or loans which are necessary, and which the master or owner has no apparent funds or credit to pay for. It is the duty of the master to communicate with the owner of the ship or cargo, if possible, before giving a bottomry or respondentia bond. Such bonds in former times, when communication with foreign ports was difficult and slow, were very common. They are now becoming very uncommon, because there are few ports in the world where a ship can go in which telegraphic communication with the owner of the ship cannot be had. CHAPTER III. THE OWNERSHIP OF VESSELS. 19. The transfer of vessels.-A vessel is personal property. No bill of sale or writing of any kind is strictly necessary to transfer title to a vessel, but under the United States Revised Statutes, § 4170, a bill of sale is necessary for the registration or enrollment of a vessel, and therefore practically the title to a vessel is always transferred by a written bill of sale. No bill of sale, mortgage, hypothecation, or conveyance of a vessel, unless recorded in the Custom House, is valid against a grantee or mortgagee without notice. The proper place to register or enroll a vessel is with the collector of the district in or nearest to which the owner, if but one, or, if more than one, the ship's husband or managing owner, resides. The bill of sale must set out exactly the interest of each person selling and purchasing. 20. The use of vessels.-The vessel owners are liable in solido (in the whole) for debts or torts incurred in the regular course of business by the master or managing owner. But the minority owners who have dissented from the use of the vessel at all on a particular voyage are not so liable. 21. Limitation of liability.-Under the ancient admiralty law in the south of Europe, the liability of the owner of a vessel was limited to the value of the vessel and its freight. The liability in England is now limited to an amount equal to £8 per ton for loss or injury to property, and to £15 per ton for loss of life or personal injury. In this country, under the Act of 1851 as amended, now §§ 4282 to 4289 of the Revised Statutes, the limitation of liability is absolute on surrender of the vessel and pending freight. The provisions of the American Act apply to foreign as well as to American ships, and even in the case of collisions between ships of the same nation, the right of limitation is absolute.22 It does not require that any insurance on the vessel be surrendered.23 The practical consequence is that if a vessel whose negligence has caused a collision is sunk by the collision, the owners may be entirely reimbursed by the insurance, but the ship, cargo, or persons injured by the collision have usually no substantial remedy. The Act limiting the liability applies to claims ex delicto (out of tort) and ex contractu (out of contract). It covers personal injuries, including those causing death. The acts or defects causing the damage must have been without the owner's privity or knowledge. Knowledge of an agent is immaterial, unless it be the president or high officer of a corporation. Limitation of liability cannot be claimed against liabilities contracted by the owners personally, as claims for supplies ordered by the owners. The English courts have construed the English Act as fixing the value just before the disaster. The American courts have construed the American Act as fixing the 22 The Titanic, 233 U. S. 718. 23 The Scotland, 118 U. S. 507. |