Vose v. Cockroft

Leonard, J. . The contract between Lovcjoy, the master, and Gockrqft, the owner, was not a chartering of the vessel; but was a mode for fixing the wages of the master. He was to take a share of the gross earnings, from which he was to bear certain expenses of running the vessel; and this share he was to receive “as wages.” There is no‘time fixed for the continuance of the agreement. The owner could remove the master at any time, without his consent; and it appears that he finally did so, having the supplies furnished by the plaintiffs, then on board, for which they never had been paid, and of which, it follows, that the owner had the exclusive benefit. The master ordered the supplies, and the- plaintiffs furnished them on that order, for the use of the vessel, and they were such as were proper. The knowledge of such a contract does not import an exclusive credit to the master, or auy inconsistency with the present position of enforcing a lien for the supplies, so far as I can understand it. The plaintiffs probably expected the master to pay for the supplies; but that does not indicate that they were not to look to their lien if he did not do so. The judgment should be affirmed, with costs. Ingraham, P. J. The agreement with the captain, made. by the owner,.being only for the mode of compensation, did [61] not release the Amssel from the ordinary liability for supjilies. If either had purchased, the liability would have been the same. There is nothing in the case to show that the plaintiffs knew of the existence of such a contract, and even if they had known of it, the liability would continue, and more especially so when it appeared the stores were purchased for a voyage not performed, and the defendant used the stores after they discharged the captain and put another in his place. Even if the captain could be considered as a charterer, the vessel would be liable. In Pendleton v. Franklin, (7 N. Y. Hep. 528,) it was held that if the debt ivas, contracted by the master, even where he had a charier for three years, the vessel ivas liable. And Gardiner, J. says the creditor is not bound at his peril to determine in Avhich character he acted. A similar case Avas decided by this court, in Kernel v. Kirk, (37 Barb. 113.) It is suggested there is no finding on the question whether the plaintiffs knew the captain was sailing the vessel under this agreement; but no such finding is necessary, and if it were, we are to presume the court below so found, if necessary to sustain the judgment. The judgment should he affirmed.