
    Charles Kohler, Plaintiff and Respondent v. Garret P. Wright, Christopher P. Jones, Christopher Port and Edward Jones, who were impleaded with Edward A. Decker, Defendants and Appellants.
    1. Where, on appeal from a judgment on the decision of a referee, the case states that the cause was submitted, “ the counsel for the defendants admitting that the defendants are liable for the payment of a bill,” which was one of the bills for the payment of which the plaintiff claimed to recover, the defendants on appeal cannot question the correctness of the decision of the referee allowing such payment to the plaintiff, although the defendants, after such submission of the cause, handed to him written points assailing the plaintiffs claim in respect thereto.
    2. As a general rule, all the owners of a vessel who assent to the employment , of the vessel, and share the proceeds of such employment, are prima facie liable for repairs and supplies to the vessel, and 'for the wages of the seamen while the vessel is employed for their benefit.
    3. Where, in such case, the master of a vessel, by the express direction of one of such part owners, pays a sum of money to satisfy the claims of seamen for their wages on a voyage immediately preceding that for which such master is employed—which claim another part owner, who was captain on such previous voyage, states to be correct—the master making such payment is entitled to recover the sum so paid, in an action against all the owners.
    4. Neither the claim of the seamen, nor of the master making such payment, can be defeated by proof of a private arrangement between such owners, . that the wages should be paid out of the share of the earnings belonging to the part owner who was captain on such previous voyage.
    (Before Hoffman and Woodruff, J. J.)
    Heard April 16,
    decided July 7, 1860.
    o This action was brought by the plaintiff to recover from the defendants, as owners of the schooner “William B. Marsh,” for services, and also for moneys paid out for their benefit. He had been mate of the vessel until March, 1856 ; down to which date, one of the part owners, the defendant Decker, was the captain or master. On and after that date, the plaintiff was employed and sailed the vessel as master. While employed as master, the plaintiff paid a' bill to one Francis, for cups and saucers, broom, paints, putty and other small articles, furnished by Francis for the use of the vessel, amounting to $4.95.
    He also paid several small sums claimed by three of the seamen, (Jones, Pattemand Ward,) for wages accrued while Decker commanded the vessel, and due when he left in March, 1856, amounting to $38.54. The proofs showed that the defendant Decker, examined the bills of those three seamen, (which the plaintiff showed him,) and said that they were correct; and that when the seamen demanded their wages, and threatened to libel the vessel therefor, the plaintiff applied to Jones, one of the other owners, for directions, and he instructed him to pay them, and he did so. The defendant Decker, though served with process, did not put in an answer. The other defendants denied the plaintiff's claim. The action was referred to Henry J. Scudder, Esq., before whom it was tried, on and after the l^th of February, 1859.
    The defense was, that one of the owners, Decker, ran the vessel when these wages accrued, on shares, and that by the arrangement with him, he was to pay the wages and expenses out of his share of the proceeds ; and that when the plaintiff took the command, he took the vessel upon the same terms while he acted as master.
    The case made and settled by the referee, states that the cause was submitted, “ after having been summed up, and the counsel for the defendants who had answered in this action admitting that the defendants were liable to the plaintiff for the payment of Francis’ bill,” ($4.95.) But the case also states, that after the submission, the counsel 11 handed in to the, referee written points which discussed the liability of the defendants for the bill of Francis those points denied such liability. The opinion of the court also states some of the facts proved on the trial.
    The referee, upon all the evidence in regard to the claim of the plaintiff for services, and in relation to his claims for moneys paid for the use of the plaintiffs, found and decided as follows, viz.":
    “ That the defendants were owners of the schooner William. B. Marsh, during the periods alleged in the complaint.
    “ That the defendant Edward Decker, acted as master of said schooner during the year 1855, and up to March 29, 1856.
    “ That Daniel Patten, James Ward, and George and John, were seamen on board said schooner at the date the master ' left her, to wit, March 29, 1856.
    “ That one of the owners, other than the captain, had, at times, paid wages to seamen serving on board said schooner, and charged such payment to, and settled it with the captain.
    “ That plaintiff, on the 30th March, 1856, after an interview with these men, met Jones, one of the defendants, and told him the men demanded their wages, and would libel the vessel for them, and asked him what should be done ; that the defendant Jones, told plaintiff to pay them, and thereupon, plaintiff' paid to Patten, $18.56 ; to Ward, $14.52; to John, $5.46—in all to $38.54. That plaintiff advanced the sum of $4.95 for necessary articles for use on said schooner, at the instance of defendants. That none of these sums, have been repaid him; that interest on the same, from date of payment to date of this my report, is $10.63, which, added to the sums aforesaid, makes $54.12.
    
      “ Wherefore, I find, as conclusion of law, that the defendants are indebted to the plaintiff in the sum of fifty-four dollars and twelve cents, and that the plaintiff is entitled to judgment against the defendants, at the date of this my report, for fifty-four dollars and twelve cents, with costs of this action,
    “And, as to the claim, by plaintiff, for services, I report that he has not sustained the same against any of .the defendants who have answered in the case.”
    The counsel for the said defendants thereupon, in due time and form, excepted to the findings and conclusions of the said referee, as contained in said report, in all the particulars necessary to raise the questions discussed in the opinion of the court.
    
      
      A. H. Wallis, for the Defendants, (Appellants.)
    I. The defendants are adjudged liable to pay the amount paid by the plaintiff to the men, because he went to defendant Wright’s scow and saw defendant Jones, and told him that the men were going to leave the vessel, and the next thing they would libel her, and asked him what was best to be done about it. He told the plaintiff to pay them, and that is why he paid them.
    In this the referee erred, because:
    1st. The defendants, although owners of the vessel, were not partners; their interests were distinct and several, and the act of Jones could not bind the other defendants. It was not a direction or an act of a part owner which was necessary to enable the vessel to earn freight, or which conduced to the benefit of all the owners, but was a direction to pay a debt due these men by another person, and for which the defendants were not liable in any way. (8 Kent’s Com. 152,153, 154 ; Abbott on Shipping, 129, notes and cases cited; Thompson v. Snow, 4 Green. R. 264.)
    2d. Defendant Jones did not tell the plaintiff to pay the men on account of the vessel or its' owners. The plaintiff came to him for advice, and what he said was advisory only, supposing that Decker would return, or that the plaintiff might, as mate, have means belonging to the vessel in his hands or under his control.
    3d. The report of the referee cannot be supported on the ground that these men had a lien upon the vessel and might have libelled her, because, 1st, no proceedings had been taken by them to enforce their lien, and none had been threatened, and the plaintiff was not authorized to relieve the vessel until there was danger that she would be pursued; 2d, by the payment of these men, all the plaintiff could claim would be to be subrogated to their rights, and they had no personal claim against the defendants— their lien could only be enforced by a proceeding in rem; and 3d, it was altogether unlikely that these men would have libelled the vessel, as the expense of the proceeding would have exceeded their claims, as they could not recover costs when their claim was less than $100. (Laws of U. S. of 1847, chap. 55.)
    4th. There is no evidence whatever as to what was due to these men. Nothing was said by the plaintiff or the defendant Jones, as to what was due to, or was to be paid to these men; and the plaintiff could only recover what he proves was owing to them for their wages on the vessel, and as he has not proved that there was anything due to them, the referee erred in giving judgment for what he paid. The plaintiff had no right- to pay what he pleased, and then recover it of the defendants.
    II. The referee erred in allowing the plaintiff the hill of Francis, of $4.95, because:
    1st. The bill was for stores that, by the terms of the charter, the defendants were not liable for, and the payment by the plaintiff was entirely voluntary.
    2d. The plaintiff himself chartered this vessel, and, by the terms of his charter, was to pay all such bills as this of Francis, and this bill was incurred while he had the vessel, and he alone was liable for it.
    3d. There was a final settlement and adjustment of all accounts between the parties which concludes the plaintiff.
    III. The proof makes out beyond dispute, and it is not controverted,- that Decker took the vessel upon the following terms: He was to man and supply her, and have the absolute control of her and her movements, and was entitled to two:thirds of her freight money, and the defendants to the other third, as a compensation for the use of the vessel.
    Decker was thereby owner, pro hac vice, and the defendants were not liable for any of his engagements, or to the seamen for their wages. (Abbott on Shipping, 133, note 1, ed. 1854; Thompson v. Snow, 4 Greenl. Rep. 264; Winsor v. Cutts, 7 Greenl. Rep. 261; Jones v. Blum, 2 Rich. Rep. 475; Well v. Pierce, Curtis C. C. Rep. 104; Aspinwall v. Bartlett, 8 Mass. Rep. 483; Hallett v. Colum 
      
      bian Ins. Co., 8 John. Rep. 209; 1 Parsons on Maritime Law, 111, note 2, and page 235 and 236.)
    The case of Slcolefield v. Potter, (Davies’ Rep. 392,) is overruled by Well v. Pierce, (Curtis C. C. Rep. 104.)
    All the above cases hold that a participation in the freight makes no difference.
    The judgment should be reversed.
    
      Jonathan Edgar, for the Plaintiff, (Respondent.)
    I. The referee was right in finding that the amount paid by the plaintiff to the seamen, Patten, Ward, and John, was justly due and owing to him by the defendants, with interest from the time of payment.
    1st. As a general principle, the owners of a vessel are personally liable for the wages of seamen, and there is nothing in this case to prevent the application to it of this principle. The agreement between the owners and master could not affect the rights of the seamen, unless they were made aware of it, and there is no evidence that they knew anything of it. (Skolefield v. Potter, Davies’ Rep. 392, Dis. Ct. Maine; Arthur v. The Schooner Cassius, 2d Story, C. C. R. [U. S.] 92, 94.)
    There are some adverse decisions in the State courts of Massachusetts and Maine, but none in this State, and certainly the United States courts’ decisions should govern.
    2d. Although owners of a vessel are not necessarily partners, yet they may be such for a particular voyage, or series of voyages, and the agreement (so far as any is proved) showed the owners in this case to have been partners for all the voyages.
    3d. The fact that one of the owners usually collected the freight, and sometimes paid the men, was a recognition of their liability to the seamen for their wages, and entitled the seamen to look to them for payment.
    4th. The seamen had a right to libel the vessel for their wages, (no matter who employed them,) and the fact of their being about to do so, rendered it not only proper but necessary for the interest of all the owners that they should be paid.
    5th. The owner who thus paid the wages (through the plaintiff) had an undoubted right to call upon the other owners to contribute towards the same. (Mumford v. Nicoll, 20 John. 631 to 636 ; Schemerhorn v. Loines, 7 John. 311; 3 Kent’s Com. (margin) 25, 40, 154, 155, 196; Story on Agency, § 40; Story on Partnership, §§ 408, 440 to 446, inclusive, and 455.)
    6th. If Jones, or Wright, or any other part owner, had authority to pay the seamen, and bind the other owners, he undoubtedly could direct the plaintiff (who then had charge of the vessel) to pay the men, and the plaintiff, paying them under such direction, could hold all the owners responsible.
    II. The construction of a contract most favorable to the seaman is always adopted, and every presumption is made in his favor.
    III. The referee was right in finding that the amount paid by the plaintiff to Francis for the bill A, was justly due and owing to him (the plaintiff) from the defendants, with interest.
    1st. According to the alleged agreement for the running of the vessel, this was an item properly chargable to the owners. It was all for repairs, equipments, &e.
    2d. The plaintiff, at the time this bill was contracted, was master of the vessel, and had authority, and was bound, under his agreement, to pay this bill for the owners ; besides, he was expressly directed by one of the owners, to contract it. the trial, should bind them.
    3d. The admission of the counsel for the defendants, on The judgment should be affirmed with costs. .
   By the Court. Woodruff, J.

—This action was brought by the plaintiff to recover from the defendants, as owners of the vessel called “ The William Marsh,” for services, and also for moneys paid, laid out and expended for the use of the defendants, and at their request.

He has recovered judgment for the moneys paid out by him and interest thereon, and for those moneys only.

The referee before whom the action was tried, finds as facts proved before him, that the defendants were owners of the vessel during the year 1855, and afterwards during the periods mentioned in the complaint herein; and that down to March 29, 1856, one of ^ them (Decker) was also master of the vessel. That three seamen, (Patten, Ward, and John,) were seamen on board at the time when Decker ceased to be master. That one of the defendants, other than Decker, sometimes paid the wages of seamen serving on board, and charged such payment to and settled it with Decker as captain (or master).

That one of the defendants directed the plaintiff to pay to Patten, Ward, and John, their wages, and he thereupon paid them in all the sum of $38.54.

He further finds that the plaintiff, at the instance of the defendants, paid and advanced for articles procured for use in the said vessel, the sum of $4.95.

For these sums with interest, he decided that judgment should be awarded for the plaintiff.

As to the sum of $4.95, paid by the plaintiff for articles procured for use on the schooner, the correctness of the referee’s decision ought not to be considered open to inquiry. The case shows that the case was submitted after the summing up of counsel, “ the defendant’s counsel admitting that the defendants were liable to the plaintiff for the payment of the bill, Exhibit A’’ which was the bill for the said articles so procured, amounting to $4.95, and which the plaintiff had paid.

This admission the plaintiff’s counsel bad a right to accept and act upon. We cannot say in what precise stage of the cause the admission was made, but it is stated that the case was submitted after such admission. We cannot know that the plaintiff would not have sought to give, or that he would not have given further proof in relation to this item if the admission had not been made. It is enough that the case was submitted on that admission. • The defendants could not, by subsequently handing in written points in denial of such right of recovery, retract their admission made at or before the actual submission of the case to the referee.

Besides, irrespective of such admission, we think the referee was right in respect to the liability of the defendants for the amount of the bill. One of the defendants had approved the bill and certified it to be correct. Another of the defendants testified that under the arrangement with the plaintiff as to running the vessel as master, (the terms of which he said were the same as those upon which Decker sailed her,) the owners were to pay for the ordinary equipments and repairs of the vessel. The articles in question, seem to us plainly included in that description, and not to be stores for the consumption of the crew. It was testified that the articles were necessary for the vessel, and that one of the defendants ordered the plaintiff to get what things he wanted for the vessel, and that he procured them and paid for them.

This proof seems to us, to bring the claim for these articles within the ground that part owners of a vessel are, as the general rule, liable for supplies and repairs furnished the vessel, and especially so when there is no agreement that the master shall himself furnish them.

In respect to the several sums due to the seamen paid by the plaintiff, we think the referee properly allowed them, and that the plaintiff was entitled to recover them from the defendants.

They were paid. by the express direction of one of the defendants. They were certified to be correct by another of the defendants, who, from his connection with the vessel during the period of the service claimed for, knew personally whether they were correct, and the seamen had served on board with the last named defendant. This was, we think, sufficient frima facie to warrant the plaintiff who was, in making such payment, acting as agent for the owners in allowing and paying the sums which he did pay.

Some principles applicable to this part of the plaintiff’s claim, are also pertinent to his claim for the money paid for articles procured for the use of the' vessel first above referred to and discussed ; and it is to be observed particularly in reference to the wages of the seamen, that at the time they were earned, one of the owners was himself the master, and the ship was employed for the benefit of all the owners, they being sharers in the profits of her employment. Although it is testified that the owner who sailed the vessel as master, was to pay the seamen by the terms of a private arrangement between the owners, yet even this arrangement was not ostensibly observed, since one of the other owners sometimes made the actual payment to the hands, making such payment the subject of charge to the owner who sailed as master, in the arrangement of the private accounts of the owners among themselves ; so that to all appearances, and so far as the seamen and other third persons were concerned, the vessel was in the hands of the owners, and run by them, and for their account, one of them sailing as master. The seamen did not know; no third persons dealing with the vessel knew, that in the settlement of the accounts between the owners, the adjustment was made by allowing to the master a share of the net earnings in lieu of wages. Not only so, but as all the owners were interested in the earnings and entitled to a share thereof, and not entitled to a fixed sum as charter money, the case would be distinguishable, (if such a distinction was material,) from the case of a vessel chartered to a third person and placed under his sole control, in which case the charterer is, for many purposes, deemed owner, and the actual owners not liable for his acts. Here there was a community of profits divisible among the owners according to a private arrangement between them.

So also the case -is not one in which some of the owners employ a vessel against the will and consent of other owners, subject only to a liability to account, in which case the non-consenting owners may not, against their will, be charged by the others with liability.'

The general rule would, therefore, seem applicable to the present case, viz; that all the owners are prima facie liable for repairs, supplies, and for wages of the seamen while the vessel is .employed for their benefit, (Westerdell v. Dale, 7 T. R. 306 ; James v. Bixby, 11 Mass. R. 34; Thompson v. Finden, 4 Carr & P. 158.) In respept to putfit they are said to be partners, Wright v. Hunter, (1 East. R. 20,) and to be all liable. (Scottin v. Stanley, 1 Dallas R. 129 ; Schemerhorn v. Loines, 7 J. R. 311; Muldon v. Whitlock, 1 Cowen R. 290 ; Baldney v. Ritchie, 1 Stark. R. 338; Chapman v. Durant, 10 Mass. 47.) And Mr. Justice Story says; Where one or more of the part owners are, by common consent, employed in the general concerns of the ship, all the part owners ar.e liable in solido, for the debts properly incurred on the joint account, (Story on Partnership, § 440,) and that it will make no difference in respect to the liability of the owner, (even though the master is not himself a part .owner;) that the master is, by private agreement, to have the entire ship to his own use for a specific period, and make all the repairs at his own expense, for such a private agreement cannot vary the rights of third .persons, This is a much stronger case for the defendants than the one now before us, and yet the owners are deemed liable to third persons. (Story on Agency, § 298 ; Rich v. Coe, Cowp. R. 636 ; Collyer on Part. §§ 1,225, 1,228.) Within these rules the owners are liable for all contracts made by the master, within the ordinary scope of his employment, and none are more so than the engagement of seamen to serve on board the vessel. And this is especially true when the master is himself one of the owners running her for the common benefit; and that in general, owners are-liable for the wages of the seamen is obvious. (Story on Con. § 113 to 122; Worth v. Mumford, et. al. and cases cited, 1 Hilton, 1.)

There was then a prima facie liability of the owners to the seamen; an express direction by pne of the owners to the plaintiff while acting as the agent of the owners, to pay them; a certificate by another of the owners to the amount due to the seamen; a right in the seamen to institute legal proceedings against the ship to compel payment; a motive therefore forming a consideration to induce the owner directing such payment to do so to save the owners from expenses and loss if the wages were not paid; and an actual payment by the plaintiff of the sum reported by the referee, for the use and benefit of the defendants.

This cannot, we think, be regarded as a voluntary payment for which the parties benefitted are not liable; and acting in good faith, and in the exercise of due diligence, we think "the plaintiff was prima facie justified in paying the amount which one of the defendants stated to him was due and which the seamen claimed. This, we think, sufficient at least, to put the defendants to show either that the plaintiff acted in bad faith, or that the amounts paid by him were not due to the seamen.

Our conclusion is, therefore, that the judgment should be affirmed with costs.

Ordered accordingly.  