Willings v. Blight

During the progress of the cause the following opinion was given by the court.

Whether the minority shall or shall not be compelled to sell, has not, in the opinion of the court, been here judicially determined. It is asserted (Beawes, Lex. Mere. 49) that if the majority of owners refuse to fit out, they are compellable to sell at a valuation; and so are part-owners, deficient and unable to fit out the vessel. This majority or minority, means those who hold the greater of less proportion of property. In the Sea Laws (3d Ed. 442), it is said, that “upon any probable design, the major part of the owners may, even against the consent, though not without the privity and knowledge of the rest, freight out their vessel to sea.” “If it should so fall out that the major part, in number, protest against the voyage, and but one left that is for the voyage, yet the same may be effected by that party, if there be equality in partnership.” “If it falls out that one is so obstinate, that his consent cannot be had, the law will enforce him either to hold or to sell his proportion; but if be will set no price, the rest may rig her out, at their own costs and charges, and whatsoever freight she earns, he is not to have any share or benefit in the same. But if such vessel happens to miscarry, or to be cast away, the rest must answer him his part, or proportion, in the vessel. But if it should fall out, that the major part of the owners in value, refuse to set out the vessel to sea; there by reason of the inequality, they may not be compelled; but then such vessel is to be valued and sold: the like, whether part of the owners become deficient, or unable h\. set her forth to sea.” The sixth article of the twenty-third section of the ordinances of Louis XIV. of France, enacts, that “no person may constrain his partner to proceed to the sale of a ship, except the opinions of the owners be equally divided about the undertaking of the voyage.” Here “equally” means equality of property.

This point see.ns not yet to be so decided as not to admit of question. The authorities in the British books, lead to opposite conclusions; and leave the subject liable to controversy

It is a principle discernable in all maritime codes, that every encouragement and assistance should be afforded to those, who are ready to give to their ships constant employment; and this, not only for the particular profit of owners, but for the general interests and prosperity of commerce. If agriculture be, according to the happy allusion of the great Sully, “one of the breasts from which the state must draw its nourishment,” commerce is certainly the other. The earth, the parent of both, is the immediate foundation and support of the one, and ships are the moving powers, .instruments and facilities of the other.—-Both must be rendered productive by industry and ingenuity. The interests and comforts of the community will droop, and finally perish, if either be permitted to remain entirely at rest. The former will less ruinously bear neglect, and throw up spontaneous products; but the latter require un-remitted employment, attention and enterprise, to ensure utility and profit.3 A privation of freight, the fruit and crop of shipping, seems therefore to be an appropriate mulct, on indolent, perverse, or negligent part-owners. The drones ought not to share in the stores, acquired and accumulated by the labour, activity, foresight and management of the bees. Although the hive may be common property, it is destructively useless to all, if not furnished with means of profit and support by industry and exertion; which should be jointly applied by all, before they participate in beneficial results. Nor should the idle and incompetent be permitted to hold it vacant and useless to the injury and ruin of the industrious and active.

3 The following authorities were cited and furnished by the counsel, on the questions which arose in this cause. The jurisdiction of the court of admiralty. Denied—Hardr. 473; Garth. 2G. Allowed—1 Ld. Raym. 223; 2 Strange, 890: 2 Ld. Raym. 12S5. Stipulation must be—1st. To secure safe return from the voyage, or pay value of share. 2d. Within a stipulated or reasonable time. Voyage must be designated. Though the vessel be put to sea without consent, the minority should be informed of the voyage intended. Moll, de J. Mar. 220; Lex. Merc. Red. 52. Freight, to dissenting part-owners. Denied—2 Oh. Gas. 36; 1 Vern. 297; Amb. 255. See 6 Vin. Abr. tit. “Mariners.” Allowed—1 Show. 13. Id.;† C Mod. 162; Fitzg. 197; Skin. 230. See, also, 1 Treatise on Gommerce, p. 29. 2 Browne, Civ. & Adm. Law, p. 131.

† The cause having ended in a compromise, these authorities were not all read or examined.