
    Thomas Aspinwall, Administrator, versus Joseph Bartlet.
    Where there was a contract by the master of a ship in a foreign country for the sale of the ship, and a delivery in pursuance of such contract, with an agreement that the new employers should victual and man her, the former owners were held not liable for the wages of the seamen accruing after the contract.
    This action was assumpsit against the defendant as owner of the ship Herald, for wages due the plaintiff’s intestate, Tobias Butler, as a mariner in a voyage from London to some port in Spain, and from thence to South America, and back' to London.
    
    At the trial, which was had upon the general issue at the last November term in this county, before Parker, J., it was in evidence, that Butler shipped as a mariner in London, on the 21st of December, 1807, and went in the ship to Corunna in Spain, and from thence to Rio de la Plata in South America, where he was turned ashore by one Stevens, who acted as master, and was imprisoned there. The ship sailed without him, and returned to London.
    
    The ship, when she sailed from Plymouth in Massachusetts in the fall of 1807, was owned by the defendant, and commanded by Trueman Bartlet. On her arrival at London the master agreed to sell the ship to a house in London, and received the price for her ; but not having legal authority to sell, he entered into a charter party with the London house, by which they were to have the entire use of the ship, and were to victual and man her.
    * T. Bartlet, the former master, testified that this agreement was executed about the 10th of December, 1807; after which time he had no charge or concern with the ship; that Stevens, who had been his mate,before, was appointed the master; that neither he, the witness, nor the defendant, his employer, had any interest in the voyage from London, nor were concerned in the proceeds thereof; that he had never seen Butler, until his arrival at Plymouth aforesaid from South America, and that he never shipped him, or any other of the crew, for that voyage ; and that the contract for the sale of the ship, which he made as before stated, had since been perfected by a regular bill of sale forwarded to the purchasers, and that the charter party had been cancelled.
    The plaintiff’s counsel contended at the trial, that as there had been no legal change of property in the vessel, the papers of the custom-house remaining as before the vessel was contracted to be sold, the defendant, as owner, remained liable for the wages of the crew.
    The judge directed the jury, that if they were satisfied that there was a bona fide sale agreed upon, and a delivery of the ship accordingly, so that she ceased to be under the control of the defendant, he was not liable as owner for the wages of the seamen ; and further, that when a vessel is chartered to one, who by the contract is to victual and man her, and the seamen ship after the execution of such charter party, the hirers of the ship are the cm ners for the purpose of giving the security, which the law contemplates, to the mariners. And the jury returned a verdict for the defendant, which the plaintiff moved to set aside, and for a new trial for a misdirection on the above points; and the action stood continued upon that motion.
    
      Sullivan for the plaintiff.
    As it is not denied that the wages were earned, nor is it pretended that they have been forfeited, the only question in the case is, whether the defendant is liable for them.
    The master ought not to have been permitted to prove the agreement to sell the vessel. That agreement was doubtless *in writing, and ought to have been produced. It might have been made subject to many conditions and contingencies, which would give the transaction a very dif ferent complexion.
    
      Curia.
    
    This point is not saved to you by the report. You should have made the objection at the trial, if you wished to avail yourself of it in this stage of the action.
    
      Sullivan.
    
    If parole evidence was admissible, I contend that a mere agreement to sell is not a sale, and until a sale and transfer, the former owner remains liable to the mariners for their wages. They can only know the owner by the register of the ship, and by that the defendant continued the owner until the voyage was com pleted. The register is the only evidence of ownership recognized in the Courts of Admiralty.  So none but the registered owner can recover on a policy of insurance for a loss of a ship;  nor on a policy on the freight.  Owners are chargeable for necessaries furnished the ship by order of the master, although the ship were leased to the master for a term of years.  In the case of Brooks vs. Dorr Al.¡ 
       in this Court, it was determined that a seaman was entitled to recover his wages of the owners of the ship, notwithstanding they had parted with all their interest by abandoning to the underwriters.
    
      Whitman for the defendant.
    The owner is liable to the action of the seamen for their wages, only on account of the privity that exists between the owner and the master, with which latter the seamen immediately contract. In the case at bar, there existed no such privity. 
      Stevens was not the defendant’s master. The defendant had no concern in the voyage, nor any interest in the ship, or in her earnings during the voyage.
    In the case of Hussey vs. Allen & Al., 
       decided in this Court, it was determined that the owners of a vessel, who had parted with their property in her during her voyage, in which a merchant in a foreign port had furnished her with necessary supplies, were not liable for those supplies.
    
      
       Rob Admr. Rep. 155, The Sisters.
      
    
    
      
       4 Esp. Rep. 98, Marsh va. Robinson
      
    
    
      
       5 D. & E. 709, Camden vs. Anderson.
      
    
    
      
      
        Cowp. 636, Rich vs. Coe & Al.
      
    
    
      
      
        2 Mass. Rep. 39. See also 5 B. & P. 182.
    
    
      
      
        Abbott on Shipping, P. 4, c. 4, § 10.
    
    
      
       6 Mass. Rep. 163.
    
   * By the Court.

It is generally true that a mariner has a threefold remedy for the recovery of his wages, the vessel, the owners, and the master. But where, as in the case before us, there was an absolute contract to sell, and possession delivered pursuant to that contract, and a part of the agreement was, that the new employers of the vessel should victual and man her for the voyage, such employer is in place of the owner, and is liable for the wages of the seamen. The former owner cannot be also held,

Judgment on the"verdict.  