The defendant, being the owner of a vessel, was garnisheed by the plaintiff as indebted to one of the seamen. It appeared on the trial, that the ship had been chartered for the season when the alleged indebtedness accrued; and it was claimed, and held by the couft below,' that the effect of the charter-party was to relieve the owner from liability, and substitute the charterers in his stead.
The law applicable to the question seems to be well settled. It is, that if the person chartering the vessel has the entire control of it, so that the captain and seamen are primarily in his employ, and he runs it at his own expense, then he is regarded as the owner for the time being, and the general owner is relieved from liability. But if, notwithstanding the charter-party, the general owner retains the possession of the vessel so far as to run it by his own captain and seamen, the latter will. be in his employ, and he will be liable. The Schooner Volunteer, 1 Sumner, 551; The Ship Nathaniel Hooper, 3 id., 542; Emery v. Hersey, 4 Greenl., 407; Clarkson v. Edes, 4 Cow., 470; Kenzel v. Kirk, 32 How. Pr., 269.
It will be observed that the question here is not whether, under the terms of this charter-party, the general owner retained a lien for the freight. The lien may be waived, although the owner retains possession of and runs the vessel. And taking notes for the hire of the vessel, as was done here, such notes being payable at stated times during the season, would probably be held to constitute such waiver. Chandler v. Belden, 18 Johns., 162.
But the question here is, who, under this charter-party, must be held to have employed the seamen ? It is a question not free from difficulty. There are clauses in the instrument, which, taken alone, would seem to indicate that entire renunciation of possession by the owner which ■relieves him from liability. But, notwithstanding these, we *277Rave come to the conclusion, upon a careful consideration of all its provisions, that such was not its effect, hut that the owner was to employ and he primarily liable to the seamen.
• The clauses above referred to are, the one which provided that the vessel was to be placed at the disposal of the charterers, and the • one relating to their paying the running expenses. The former clause, however, is not inconsistent with the theory that the owner was to keep his own captain and men in possession of the .vessel, to navigate it. He might man her, and place her at their disposal already manned, or he might place her at their disposal, and leave them to man and run her. The provision is equally appropriate in either case. As to the other clause, although it might seem at first glance to provide that the charterers were to be at the expense of running the vessel, yet upon closer examination it will be found that there is no such undertaking on their pai’t, and that the clause does nothing more than provide a mode by which they are to pay a part of the gross sum which they undertook to pay for the whole hire.
As the instrument contains no express provision as to who was to hire and pay the seamen, it became necessary to see if "there is any thing fairly implied on the subject. And here it seems very important to determine the relation which the captain held to the owner, and to the charterers in this contract. Was he the agent of the latter, or of the former ? It seems manifest that he was the agent of the owner, and that he became a party to the contract as such. He and the owner are the second party to the contract, and the charterers the first. The owner and the captain agreed to place the schooner at the disposal of the charterers. After the charterers had signed it, they then signed the following provision: “We, the undersigned, Richard Pugh *278and J. D. McGaw, second party to the above agreement, approve and accept of the same in all its conditions and provisions, and agree to perform our part of tbe same as therein.specified.” These provisions leave no donbt that the captain became a party to this contract as the agent of the owner. And this being established, then the provision that “ Captain McGaw should sail her himself,” becomes equivalent to a provision that the owner, by his own captain and men, was to retain possession of and navigate the vessel. Eor, it being usual for captains to employ the seamen, and there being no express provision on the subject, the phrase “to sail her himself” should undoubtedly be construed, not only that he was to command her, but to employ the crew necessary for her navigation. In employing them he was therefore the agent of the owner, and the owner was liable to the seamen for their wages.
The clause requiring the charterers to pay a sum not exceeding $800 per month for running expenses, was a mode of reimbursing the owner for his primary liability in this respect, and does not alter the relation between the owner and the seamen. They first agree to pay the sum of $11,250 for the hire of the vessel for the season. They then provide that they were to give their notes for sums amounting in all to $5,000, payable at stated times during the season. Then there is the clause: “ also to pay the vessel’s running expenses, or a sum not exceeding $800 per month for same, while running, and the balance when the vessel is laid up in the fall.” ‘ The “ balance ” here referred to is evidently the balance of the $11,250, after deducting the notes and the $800 per month for running expenses. But when they had paid that sum, their liability ceased. They took no risks beyond that. If the expense of running the vessel had been much more than $800 per month, the owner not only was liable for it, but the charterers were *279not Round to reimburse Mm. If tbe vessel bad earned $25,000, and it bad cost $20,000 to run ber, tbe charterers would bave been entitled to two-tbirds tbe excess over tbe $11,250, without regard to the expense. Tbe contract seems to be, in substance, nothing more than a guaranty that tbe vessel should earn $11,250, in consideration of tbe right to two-tbirds of what it should earn over that sum.
"We are of tbe opinion, therefore, that under this charter-party, tbe captain and crew were in tbe employ of tbe owner, and that- be was liable to tbe seamen. If there was an indebtedness for services to tbe seaman "Wolcott, tbe defendant should bave been held chargeable for tbe amount.
By the Court. — Tbe judgment is reversed, and tbe cause remanded for a new trial.