2 U.S. 194 (1792)

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U.S. Supreme Court

CUPISINO v. PEREZ, 2 U.S. 194 (1792)

2 U.S. 194 (Dall.)


Supreme Court of Pennsylvania

September Term, 1792

This was an action brought against the Defendant, owner of the Brig Santissima Trinidad, for money lent to the captain in the Havanna, who gave the plaintiff the following note:

    'Received of S. Cupisino two hundred dollars for the victualling and expences of the brigantine, which sum I will pay at first sight, in the name of the owner Don Fos. de Auguire Perez, who is in Philadelphia; which cash I receive, mortgaging the freight, the brigantine and her rigging, as the said Santiago has lent me the above sum, for the advantage of the vessel at Havanna, June 6th, 1788.


    'Narisco Sanchez y Serma.'

On her arrival at Philadelphia, the brig was libelled on this hypothecation (as it was called) in the Admiralty, and after hearing, the libel was dismissed. It appeared, that the captain had goods, his own property, on board; and that he might have procured money from the Intendant of the place, without pleding the vessel.

Page 2 U.S. 194, 195

Heatly, for the Plaintiff, contended, that the general principle was, that the owner was bound by all acts of the master. 2 Emerig. on Ins. 422. 448. It is laid down in Cowper, 639, that whoever supplies a ship with necessaries has a threefold security, the ship, the owners and the master: And the same doctrine is recognized, 1 Term. Rep. 108. As to the decree of the Judge of the Admiralty, it was founded wholly on the informality of the hypothecation, and therefore not conclusive.

Moylan, for the defendant, contended: 1st, That the Admiralty had already decided on the merits of the case, and that the hypothecation was adjudged void, because there was no necessity to warrant it. In assumpsit a decree of the admiralty, on a libel for wages, is conclusive against the plaintiff. 1 Esp. 178. So, a decision of the Leghorn court was held conclusive, 2 Stra. 733. 2nd, But be this as it may, it is clear that if a captain borrows and impawns the ship without necessity, it will not be good. Hob. p. 12. Mol. B. 2. ch. 2. sec. 14.3 Mod. 244.5. 3rd, He contended, in the last place, that the master cannot make his owners personally liable by his contract in a foreign port. Molloy B. 2. ch. 11. sec. 11, is in point, and so is Johnson v. Shippin, Salk. 35. The case in Cowper only applies to a contract for necessaries in the port where the owners reside. The dictum in Emerigon is too extensive in its terms, and in other parts of the same book is limited. Thus, in p. 424, it is stated, that the captain cannot hypothecate where the owners reside.

By the Court: It is clear that the captain can hypothecate his vessel only in case of necessity such a necessity as this; that if he did not take up the money, the voyage would be defeated, or at least retarded. This does not appear to have been the case in the present instance. But, in addition to that general rule, it is held, that the captain cannot hypothecate, while there are goods of his own, or of his owner on board. Now if there was no authority to hypothecate the vessel, how can it be pretended that he can make his owners personally liable? Great mischiefs would ensue if the master had such a power. Upon this ground, therefore, the action must fail. Another point, also, is in favor of the defendant; namely, that this very question has been already decided in the Court of Admiralty. Since, then, we think he had no authority to bind the persons of his owners in a foreign port (and in point of fact he does not seem to have done it, as the writing appears to bind only the captain and the vessel) and since the decision of the Admiralty on the merits, is, in our opinion, conclusive, the Plaintiff ought not to recover.

Verdict for the defendant.

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