Duff against Bayard, 4 Watts & Serg. 240

The opinion of the Court was delivered by Sergeant, J. — That the owners of a vessel are liable for supplies or necessaries furnished for her use by the orders of the master, where no other person has been expressly credited, is a principle long established. But who is such owner in any given case, is a question on which there are to be found contradictory cases and fluctuating opinions in the reports.

The later decisions seem however to agree that one having the legal title only, without any interference in the management of the ship, or any right to receive her freight or earnings, is not responsible: whether the title is by a bill of sale or other suflicient conveyance, or whether it is by mortgage or other document in the nature of a pledge or security. Such persons are, it is true, in one sense, owners — that is to say, they have a valid claim or title to the property of the vessel, either in law or equity. But that is not suflicient.

The owner who is responsible in such cases is the person who, having some kind of claim or title, has the control and management of the vessel, and has the right to receive her freight and earnings.

And the ground of this liability seems to be the common maxim, qui sentit commodum sentiré debet et onus: it being obviously right and just that he who enjoys the benefits of the vessel, and controls her operations, who receives her gains or has the chance of so doing, ought to pay debts incurred for the fitting out, supply, and navigation of the vessel which is to produce for him those earnings, and not a person who merely holds a right in her without the profit or usufruct.

It is for the former of these and not for the latter, that the master is considered as agent, and competent to bind them by his orders for supplies furnished to the vessel. In the case before us, the supplies were furnished to the vessel by the orders of the captain, Gonzales, and charged to the owners by the plaintiff.

There is nothing in the evidence to show that the defendants were owners in the legal sense of the word; that is to say, that they appointed the captain, controlled the navigation or destination of the vessel on her voyage, or were entitled to receive or did receive any portion of her freight or earnings. They being creditors themselves, who had furnished materials and work for the building of the boat, took a mortgage of her for their security; and it must be a strong case, to make them not only lose their own debts, but in addition, to be responsible to-other creditors.

It is urged by the plaintiff that Wells, the defendant’s witness, states, in one of his depositions, that the defendants were to have possession, and Gonzales was to be their captain. It, however,appears that this possession was but nominal — evidently with a view to evade the rule of law that a mortgage or transfer of personal property, unless accompanied and followed by possession, is a fraud on creditors, and therefore voidable by them. Certain it is, on the evidence, that there was no actual bona, fide possession given.

The defendants did not appoint the captain or clerk; they did not direct the navigation or destination of the boat; nor were they to receive the profits or earnings of her voyage. These all remained with Wells, Lathey, and their partners, who had purchased her, and held and navigated her from this port.

The defendants had in fact no more to rely on than their mortgage, fortified by the registry in their names, which it has been frequently decided is of no avail in itself, more than any other mere title, to make them liable, as owners, to third persons; being efficacious only so far as relates to the government, or so far as, in a dispute among themselves, it might be useful to show their interest. It may be added that the same principle operates in real estate.

The owner of land is he who has a right .to receive the income and profits, and may enjoy the beneficial interest; and such person is liable as assignee for the rents reserved in a former conveyance, though the legal title under an absolute deed, exists in another person. Berry v. M’Mullen, (17 Serg. & Rawle 84). Judgment affirmed.