James Moore Wayne

“ The sale by Folger and others to the claimants was made in Boston, July, 1828. The libellants knew the brig was in Boston in May preceding, but gave no notice to the purchasers or their agent, and took no steps to prevent a sale. This, it is contended, is a fraud on the claimants; and a Court of equity, (which a Court of admiralty is, with limited powers,) will not aid a party who thus stands by, and, by his silence and inaction, permits another, without notice, to purchase. It is a fraud on the innocent bona fide purchaser. ”

“ The presumption is that they are injured; they can never again be applied to the use of the vessel, and they must, ordinarily, become from day to day of less value. In fact they are a part of the vessel when stripped from her, and the mere act of separation by the vigilance and effort of the master, by which they are saved from the ocean, does not take them out of his implied power to sell in a case of necessity. ”

“ No course was left for him but that which he pursued, to discharge the cargo, and get on shore the sails, &c., as soon as possible; and sell them there, to save what he could, for whom it might concern.
The vessel was, in fact, got off by the purchasers. We are not to judge by the event, but by the situation at the time of the sale. The captain may act with perfect propriety in selling; a ship may be, to all appearance, in a desperate situation, and yet she may most unexpectedly be saved. That was the case of the ship Argonaut. ”

“ No spot on the coast is more exposed to peril: and this is not contradicted by a single witness, except, perhaps, by Captain Atkins Adams, who went to Nantucket, where he never was before, as agent for the underwriters, and was within half a mile of the spot. At the time of the sale, the brig lay on an open shore of shifting sand, nearly high and dry; her cargo discharged, and the sails and rigging taken on shore to save them. ”

“ The mischievous consequences apprehended may be controlled in each case by such proof as we are obliged to depend upon to maintain and secure from abuse other interests, equally important to society in general as to individuals engaged in some particular pursuit. We think the interest of owners of vessels in cases of a sale by the master, when pressed to make it by necessity arising from the perils of the sea, is amply protected ”

“ The vessel and tackle were sold at a public sale by the master. Mr. Justice Washington laid down the rule of law to be, 'that in cases of extreme necessity the master may sell in a foreign country rather than let the property perish, but not in the country where his owner lives; and no case of the sort, it is believed, can be shown. Mischievous would be the consequence if such doctrines were tolerated.' See also the case of Schooner Tilton, in the Circuit Court of Massachusetts, 5 Mason, 46. ”

“ In the case of hypothecation, the vessel is supposed to be in safety. The question is as to funds for repairs and outfits; and in such cases it is reasonable that in a country of such limited extent and facility of communication as England, the owner should be consulted. There can seldom be a necessity for instant action. Still, Ireland, and it is believed Scotland, are considered to be foreign countries: and it may be remarked that Nantucket is farther from the main land than Ireland is from England, and that the owners were five hundred miles from that island, and in another state. ”

“ At all events, whatever might have been the value of the sails and rigging, there was no necessity for selling them, as they were already landed, with the cargo; and the master might easily have advised the owners and underwriters, and waited for their orders; which, by the usual course of the mail from Boston to Nantucket, would have reached him in two days. In point of fact, the libellants did send an agent to Nantucket, as soon as the loss was known in Boston, who offered to pay all expenses incurred, &c. if the vessel could be delivered to him ”

“ Further: it is not enough that the master makes a sale in good faith, although this must accompany the necessity; and this latter must be clearly and indisputably made out. It may be also added, that sound policy demands that sales of this description should not be too much encouraged, by affording facilities to masters to effect them; especially in cases like the present, where they have the means of cansulting their owners in their own state or country.
But if the Court should think that the facts prove a case of legal necessity, in respect to the sale of the hull of the vessel ”

“ If there is a probability of loss, and it is made more hazardous by every day's delay, the master may then act promptly, to save something for the benefit of all concerned though but little may be saved. ”

“ If the sale be adjudged void for want of authority in the master to make it under the circumstances, and not ratified by the acquiescence of Crosby and others, with the knowledge of the libellants; if the libellants are not estopped by their silence and inaction, and the suit was commenced in due season, then the claimants ask to be allowed the expenses and reasonable reward for their vendors' (the purchasers and salvors) labour and hazard ”

“ Justice Story, in the Circuit Court, 2 Sumner, 213, were: 'The brig having on board a cargo of rice and cotton, sailed on a voyage from Savannah for Boston, and on the 23d of March, 1828, was stranded on the south-west side of the island of Nantucket. On the next day assistance was obtained from the shore, and the anchors were got out and hove tight, in order to start the vessel, but without success. In the course of the forenoon the wreck master came on board, with twenty men, and pursuant to his directions, the deck load was thrown overboard. ”

“ They refused the abandonment; they disclaimed any ownership in or right to the brig; the original owners stood by and saw the sale on the beach, and afterwards in Boston, to the respondents, without objection or claim. By this acquiescence the respondents acquired rights as against the original owners. Shall they now be defeated by the supposed relation back of the settlement in October, to the offer to abandon in March, which, at the time, was repudiated? On this point we ask the consideration of the Court.
4. The conduct of the libellants was a fraud on the claimants. ”

“ Nor will any ascertainment of the cost of repairs subsequent to the extrication of the vessel, raise a presumption against the necessity to sell, whatever may be her condition as to strength, and though she may not be injured in the hull, if the actual and immediate prospective danger menaces a probable total loss. We think such was the Sarah Ann's danger. ”