
    Hemm v. Williamson.
    
      Water-crqft — Sections 5880 and 5882, Revised Statutes, construed.
    
    One who simply holds the legal title to a water-craft as security for the amount due him upon the sale of it, having neither the possession nor control of the craft, is not an “ owner ” within the meaning of sections 5880 and 5882 Revised Statutes; and is, therefore, not liable for supplies furnished it.
    Decided June 27, 1890.)
    Error to the Circuit Court of Miami county.
    The plaintiff below, Williamson, brought suit in the court of common pleas against the defendant Hemm, to recover the value of certain supplies, amounting to some $325, claimed to have been furnished by him to the canal-boat “ Pocahontas,” of which, he averred, that Hemm was the owner, the supplies having been furnished to the boat on the orders of the captain during the years 1883 and 1884. Hemm answered, denying that he was the owner of the boat at the timé the supplies were furnished, averring that on March 9, 1882, he sold the boat to one Hamilton, who then took exclusive possession of it, and continued to do so. He further alleges that on March 9, 1882, after he had sold the boat, he and Hamilton entered into a written agreement, of which the following is a copy:
    “ This agreement between Frank Hemm, of Miami county, Ohio, and James Hamilton, of the same county and state, witnesseth: That said Hemm has this day, March 9, 1882, bought of Gr. Volney Dorsey the canal-boat Pocahontas, now on the Miami and Erie Canal; also three mules and the harness, for three hundred dollars, which sum said Hamilton agrees to pay to said Hemm within the space of three years from this date. And it is hereby agreed if said sum is so repaid, then the boat, mules, and harness shall belong to Hamilton ,- but, if not so paid, then the. above property belongs to Hemm. And in case Hamilton does not continue in the quarry of said Hemm for the term of two years, then whenever his control therein ceases he shall either pay what is still due on said property, or the property shall belong to Hemm.”
    The plaintiff replied admitting the execution of the agreement, but averred that Hamilton never complied with the terms of the agreement; and that the boat continued to be uséd for the mutual benefit of both the parties, in boating stone from the quarry owned by Hemm.
    The case was tried upon the issues to a jury, which found for the plaintiff in the amount of his claim. A motion for a new trial was made on the ground, among other things, that the court erred in its charge to the jury and in refusing, to give certain instructions asked by the defendant.
    The court charged the jury as follows:
    “ The matters in dispute between the parties are these: Was the defendant the owner of the boat at the time plaintiff’s bill was contracted, as claimed by him ? By the terms of the contract of March 9, 1882, the defendant became the owner of the boat Pocahontas, and would so remain until the terms of that contract had been fulfilled by J ames Hamilton paying the amount therein stipulated, or it being waived by Hemm or otherwise settled by him, because such contract is not a chattel mortgage, but by its terms retains the title in Hemm, defendant, until James Hamilton performs his obligations under it, or .is relieved therefrom by some arrangement with Hemm, defendant. If such performance of Hamilton of said contract on his part or other release took place after plaintiff’s bill was furnished, it will not avail the defendant so as to defeat a recovery of plaintiff.
    “If, however, you find that Hemm, defendant, did not, when he'entered into the said contract of March 9,1882, understand its terms and provisions, he would not become the owner, but if he knew what was in said contract, although ignorant of its effect in law, he would become the owner in law. In other words, if the defendant, Hemm, knew the terms of the said contract and made it in the terms he did, that by such means he would secure his claim, he became in law such owner of the boat as to make him liable as an owner by the provisions of section 5882, Revised Statutes. If you find Hemm, defendant, was such owner and liable as such, you will nest inquire, did plaintiff furnish the things named in his petition and account therein set forth, at or about time named, and while the defendant Hemm was the owner, and are or were they worth amount claimed ? If so, then further, was such bill or account furnished for the use and running of the boat Pocahontas ? and if so, was such boat during such time navigating the waters within or bordering on the state of Ohio ? If these issues are all found in favor of plaintiff, he can recover, but as I have said, the burden is on him to establish them by a preponderance of the evidence.”
    The defendant requested the court to instruct the jury as follows :
    “ 1. If the defendant owned the boat but had no control of it, or of the parties who were running it and who contracted the debt to plaintiff, and did not in any way aid or assist in the control, or equipment, or furnishing, or running said boat from time he sold it to Hamilton under the contract in evidence in this case, and did not contract the said debt himself, nor authorize any one to do so for him he is not liable in this action.”
    Also as follows:
    “4. If defendant had sold the boat to Hamilton under the contract in evidence in this cause, but had allowed Hamilton to take and Hamilton had taken possession of the boat and used and controlled it as owner free from any assistance or control of defendant under said contract or otherwise, after the sale to Hamilton under said contract, though the purchase price had not been fully paid by Hamilton when plaintiff’s claim was contracted, yet the defendant is not liable without other sufficient grounds of recovery.”
    And, also as follows:
    “ 9. If defendant was owner of the boat, but it was hired to and under the absolute control and custody of Hamilton, and Hamilton controlled and ran the boat, and appointed and employed all the persons engaged in running the boat as his agents, and not the agents of defendant, free from any control by defendant during the time plaintiff’s claim was being contracted, and defendant did not contract the debt or incur the liability for said claim except by the acts of said agents of said Hamilton, defendant is not liable because of being such owner.”
    The court refused to give either of these instructions, to which the defendant at the time excepted; and also to the charge as given.
    The motion for a new trial having been overruled and exceptions noted, as appears from the bill of exceptions, judgment was entered upon the verdict, which was affirmed by the circuit court.
    
      A. L. Marshall, for plaintiff in error.
    No right is expressly reserved by the contract, and it, at most, only provides that on default by Hamilton and at the end of the three years specified then Hemm might .divest Hamilton of ownership. And it is quite different from the contracts and the principle of the case in 23 Ohio St., 8; 28 Ohio St., 636; 40 Ohio St., 673; 18 Cin. Law Bul., 102.
    There is no common law liability against the general owner in such case. The owner intended to be liable by the statute is “ the owner who contracted the debt.” Sections 5880, et seq. Revised Statutes; 2 Ohio St., 31; 10 Ohio St., 583; 12 Ohio, 342; 15 Ohio, 590, 591; 13 Ohio St., 252, 262; 34 Ohio St., 286; 3 Kent Com., 12th ed., 134 and note d., 138 and note 1.
    
      M. H. W. D. Jones, for defendant in error.
    The material and only question in tbe case, in our judgment, is, was Hemm, at the time the supplies were furnished, the owner of the boat ? If he was, he was liable, and the judgment of the common pleas should stand. 40 Ohio St.. 670, 673; Cincinnati Law Bulletin Aug. 15, 1887, page 102 23 Ohio St., 8; 28 Ohio St., 636, 637.
    This is purely a statutory liability. The “ owner ” of the boat, or the master shall be liable. Under these decisions there can be no question but that Hemm was the “ owner ” of the boat. Either is liable. Section 5882, Revised Statutes.
   Minshall, C. J.

The question in this case depends upon the construction that should be given to the word “ owner ” as used in the water-craft law^of this state. By the provisions of this law, § 5880, Revised Statutes, any water-craft, navigating the waters within, or bordering upon, the state, is made liable “ for all debts contracted upon account thereof by the master, owner, steward, consignee, or other agent, for materials, supplies,” etc., furnished the same, and the debts so contracted are declared a lien thereon.

And by section 5882, it is provided that any person having a demand under the former section, “ may proceed against the owner of the craft, or the master who contracted the debt, or against the craft itself.” According to the charge of the court, under these sections, one who simply holds the legal title to a craft as security for the amount due him upon the .sale of it, is an owner, and liable for debts contracted by the purchaser, who has the exclusive possession and control of the boat. If this be so, it is not only anomalous but contrary to the general principles of justice. No such liability attaches to the mortgagee of real or personal property under the same circumstances, nor in any case where the vendor retains the title to the property as a security for the payment of the purchase-money by the vendee. Then why should it be so, in á similar case, arising under thé water-craft law ? No reason is perceived for it, resting upon any principle of justice or policy; nor is it required by the words of the statute. The liability created against the craft by section 5880, is for debts contracted on its account for material and supplies by'the “owner,” or his agents; and it is this liability which, by section 5882, may be enforced by a suit against the “owner,” or against the craft by a proceeding in rem. It seems manifest from the reason and language of the statute, that what is here meant by the word “ owner,” is the person who has the possession and control of the boat, and runs and operates it pro hac vice in his own interest. He may be the hirer of it, or the mortgagor in possession and the owner of it as against all the world except fhe mortgagee, of the vendee in possession, and also a like owner except against the vendor who retains the legal title as a simple security. It is not necessary that he should be the absolute, nor the legal owner; it is sufficient if he is in possession and has the equitable title to the property in the boat. The fact that he may be deprived of his possession by the assertion of the legal title, can in no manner affect the reason and policy of the water-craft law, so long as this power is not asserted, and he retains the possession and control of his boat.

This is according to the rule and practice in admiralty from which the principal provisions contained in our watercraft law were taken. It seems there well settled that a mortgagee out of possession is not liable for supplies furnished the vessel; nor is the owner who has let his ship by a charter-party, the charterer being, in such case, regarded as owner pro hac vice and liable as such. 3 Kent Com., 11 ed., 190-195; Abbott on Shipping, 43-52; Parsons on Shipping, 129.

If then by the terms of the contract between Hemm and Hamilton the legal title remained, as the court charged, in Hemm until payment by Hamilton, still as he so held it simply as a security, he would not be liable for supplies furnished the boat on the orders of the captain, having parted with the possession to Hamilton, who then ran and operated the boat on his own account. “ Where,” says Chancellor Kent, “ the contract of sale is made, and possession delivered, the circumstance that the naked legal title remains in the vendor for his security does not render him liable as owner on the contracts, or for the conduct of the master.” 3 Kent Com., 11 ed., 191. The court therefore erred in charging the jury as it did and in refusing to charge as requested, and for this reason

The judgments of both courts are reversed and cause remanded for a new trial.  