It is provided by the Revised Statutes (part 3, chap. 8, title 8, as amended by chap. 79 of the Laws of 1859), that whenever a debt amounting to fifty dollars, on sea-going or ocean-bound vessels, shall be contracted by the master, owner, agent or consignees of any vessel, for such provisions and stores, furnished within this State, as may be fit and proper for the use of such vessel, such debt shall be a lien upon said vessel, which lien shall have a preference over certain other liens mentioned; and it is further provided that such lien may be enforced by a summary proceeding in rem, by a warrant of attachment issued to the sheriff by any judge or justice of any court of record. It is also provided that, after the warrant has been issued, the owner, agent, or any person interested in the vessel may apply to the officer who *Page 425 issued the warrant for an order to discharge the same; and, upon the execution and delivery to such officer of a bond to the creditors prosecuting such warrant, conditioned that the obligors will pay the amount of all such claims and demands as shall have been exhibited, which shall be established to have been subsisting liens upon such vessel, pursuant to the provisions of said title, such officer shall make an order discharging said warrant; and thereafter the remedy of the attaching creditors is upon the bond.
The warrant of attachment mentioned in the complaint was issued, and the bond sued upon was given, under these provisions of the Revised Statutes.
In 1862 (Laws of that year, chap. 482) an act was passed entitled "An act to provide for the collection of demands against ships and vessels," which took the place of, and repealed the said provisions of the Revised Statutes, and all acts amendatory thereof. That act came in question in the case of the steamboat Josephine (39 N.Y., 19), and was held to be void, as in conflict with the Constitution and laws of the United States. The second section of the third article of the Constitution of the United States, among other things, declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. The ninth section of the act of Congress passed September 24, 1789, commonly called the judiciary act, declares that the District Courts of the United States shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it. (1 U.S. Stat. at Large, 77.)
In the case in 39 New York, the claim was for supplies furnished to the steamer Josephine, a domestic vessel, in her home port; and, while the court held that, according to the general maritime law, there was no lien upon this vessel for these supplies which could be enforced in rem in a court of admiralty, because the vessel was a domestic vessel and the supplies were furnished in her home port, yet it held that the *Page 426 contract for the supplies was a maritime contract, within the maritime law as recognized by the courts of the United States, and that the vendors could enforce it in a suit in personam in a court of admiralty; and, hence, that it was a case, under the Constitution and laws of the United States, within the exclusive jurisdiction of the District Courts of the United States, except that the vendors might avail themselves of any common-law remedy which they might have in a State court. The proceeding in rem, provided for in the law of 1862, was held not to be a common-law remedy, and hence not within the saving clause of the act of Congress; and the conclusion was thus reached, that the law was unconstitutional and void.
So far as the constitutional question is involved, there is no difference between the provisions of the Revised Statutes as amended in 1859 and the law of 1862. The former, like the latter, provides for a lien and its enforcement, not by a common law remedy, but by a special summary proceeding by warrant of attachment in rem, and under that decision I can entertain no doubt that the said provisions are unconstitutional and void.
But it does not follow from this that the plaintiffs must be defeated in their action upon the bond. The bond took the place of the lien, and, instead of the lien, the plaintiffs then had a common law remedy in personam upon the bond and could bring themselves within the saving clause of the act of congress.
When the defendants gave the bond they made no objection that the law under which the vessel had been attached was invalid. The bond refers to the law, and impliedly at least recognizes its validity. By it the defendants bound themselves to pay all such claims and demands as should be established to have been subsisting liens upon the vessel, pursuant to the provisions of the title of the Revised Statutes referred to. In the complaint in this action the law under which the vessel was seized was referred to, and the proceedings under *Page 427 it were recited; yet the defendants, in their answer, made no objection that the law was invalid, but seemed to place their defence upon the grounds that the law had not been complied with, and that the supplies were furnished upon the sole credit of Lovejoy, the master, and that therefore the plaintiffs had no lien upon the vessel under the statute. Upon the trial the plaintiffs read in evidence a stipulation, signed by the attorney for the defendants, making certain admissions in which the validity of the law is substantially recognized. It was admitted that the specifications required by the law to be sworn to were duly sworn to and filed "according to the statute in such case made;" that the plaintiffs made application "for a warrant to enforce their alleged lien, in pursuance of the Revised Statutes (article 8, chap. 8, part 3), as set forth in the complaint;" that defendants gave the bond "pursuant to said statute;" that "the forms of the statute were complied with." But the stipulation specified that the defendants did not admit that the plaintiff had any lien upon the said vessel, or that the articles furnished were such as were contemplated and referred to by the statute. There was no question whatever at the trial as to the validity of the law or of the bond, and the only defences relied upon by the defendants were that the supplies were furnished upon the sole credit of Lovejoy, and not upon the credit of the vessel or her owner, and that the supplies were not fit and proper for the use of the vessel. And judging from the opinions given at the General Term, I infer that the objection to the validity of the law was not made there. I am of the opinion, therefore, that the defendants are too late, after all that had taken place, to make this objection in this court for the first time. They must be held to have waived it. It will not be questioned that a party may, in any civil proceeding, waive the benefit or protection of any statutory or constitutional provision. They bound themselves to pay this claim, if it should be established to have been a lien upon the vessel according to the statute, and all the plaintiffs were bound to prove, to entitle them to recover, was that this claim was such a lien at *Page 428 the time when the bond was given. The defendants were in substantially the same position that they would have been, if they had bound themselves to pay this claim upon condition that the plaintiffs should prove that the owner of the vessel was legally liable to pay it, or upon any other condition which was not illegal, immoral or against public policy. But, further, how can it be claimed that this defence could be available without being set up in any way in the answer? The answer does not deny the execution of the bond nor claim that it was invalid, but simply takes issue substantially upon the breach of the condition of the bond. It would be quite extraordinary if, under our system of pleading, with such an answer, the defendants were permitted to show, as a defence, that the bond was given in proceedings prescribed by a statute which was unconstitutional and void. In the cases of Homan v. Brinckerhoff (1 Denio, 184), andCadwell v. Colgate (7 Barb., 253), the validity of the attachment proceedings and the bond were put in issue in the pleadings, and the attachment proceedings and the bond in each case were claimed upon the trial to be invalid and void, and hence those cases furnish no authority against the plaintiffs upon this appeal.
I am, therefore, of the opinion, for the reasons given, that the defence here alluded to, cannot prevail, and I will briefly examine the other grounds of error urged by the counsel for the appellants.
There was some evidence that this vessel was a sea-going vessel, and no claim to the contrary was made in the answer or upon the trial. There was evidence that the articles furnished were fit and proper for the use of the vessel. The master ordered the supplies, and testified that they were necessary. It is a general rule that the master is to determine what supplies are fit and proper, and the vendors, acting in good faith, can rely upon his decision. (Ford v. Crocker, 48 Barb., 142.) This is so, for the reason that the vendors cannot generally know what supplies are needed for the vessel, and they must rely upon the statements of the master. *Page 429
It was sufficient for the plaintiffs to show that the supplies were furnished upon the order of the master of the vessel, and this, according to the terms of the statute, gave them a lien upon the vessel. It made no difference who owned, chartered or controlled the vessel, nor under what agreement she was navigated. The statute was intended to give the vendors of supplies the lien, whenever the master ordered them. (Pendleton v. Franklin, 7 N.Y., 508.) In order to establish their lien, it was not necessary for the plaintiffs to show that the supplies were furnished under such circumstances as to make the owners personally liable for them. The statute does not require this. The vendors could waive their lien or furnish the supplies, with an understanding that they were to have no lien, and were to look exclusively to the credit of the master, or some other person, but there was no conclusive proof here, that these supplies were furnished under such circumstances.
But here the owner was personally liable for these supplies, notwithstanding the agreement between him and the master, dated May 24th, 1858. There was no finding or positive proof that the plaintiffs knew of this agreement or of the arrangement under which the vessel was navigated by the master. In order to exempt the owners from personal liability in such a case, the master must pro hac vice be the owner, and in the control and management, for the time being, of the vessel as owner. Here, the vessel was not chartered to the master, but he was bound to navigate her for the owner. The owner could direct how and with what the vessel should be freighted, and when and where she should sail, and could continue or dismiss the master, as he thought proper. By the express terms of the agreement, the master was to have the one-half of the gross amount of freight earned as wages, and to re-imburse him for his expenditures. Under such circumstances it has been held, in cases quite analagous, that the relation of principal and agent existed between them, and that the owner was liable for the acts and contracts of the master, in and about the supplies and management of the *Page 430 vessel. (Saxton v. Read, Lalor's Sup. 323; Kenzel v.Kerk, 32 Howard P.R., 269.)
I, therefore, reach the conclusion, that the judgment should be affirmed with costs.
All for affirmance except LEONARD, C., not sitting.
Judgment affirmed.