Flanders v. Merritt , 3 Barb. 201 ( 1848 )

By the Court,

Haréis, J.

The bill of sale of the vessel from Brintnall to the defendant seems to have been absolute, and on the first of November, 1842, the defendant having made oath that he was sole owner, had the vessel registered in his own name. The vessel in fact remained in the possession of Brintnall until November, 1843, when the defendant took actual possession and afterwards sold it, as owner. Upon this state of facts, I think the defendant was to be regarded as owner at the time the supplies were furnished by the plaintiffs. I understand he was so regarded by the referee. But, inasmuch as the defendant had not taken possession of the vessel, but had suffered Brintnall to retain the possession and receive the earnings, the referee held that he was to be regarded as the contracting party, as owner pro hac vice. The true question here is, upon whose credit were the supplies furnished ? Prima facie the owner is liable. The supplies are furnished upon the credit of the “ vessel and ownersSo that legal or registered ownership is prima facie evidence of liability. The defendant, stands in this position. Being the legal owner, it will be presumed that the supplies were furnished upon his credit as such owner, until the presumption is rebutted by proof that the credit was in fact given to some other person. (3 Kent’s Com. 133, 136, and cases there cited.)

If, as in the case of a charter party, the legal owner is not entitled to the control and management of the vessel, and has no right to receive its freight and earnings, this is sufficient to overcome the presumption of liability arising from legal ownership. The owner, in such a case, divests himself, pro hac vice, of ownership. His responsibility as owner is transferred to the charterer. The question in this case, then, is whether the facts proved rebut the presumption of the defendant’s liability arising from his being the legal owner of the vessel. I think they do not. It is true that the defendant had suffered Britnall to remain in the “ possession, care and custody” of the vessel, and to receive her earnings, but it does not appear that he ever, for a moment, divested himself of his right, as owner, to the control and possession and earnings of the vessel. Brintnall was at all times subject to the will of the defendant, and was liable to him, as owner, for any freight he received. There was nothing in the relation in which Brintnall and the defendant stood to each other, in reference to the vessel, which could divest the latter of his legal possession and beneficial interest in her. 1 cannot see how his responsibility as owner was diminished by the fact, that he permitted Brintnall to continue in the actual possession of the vessel and to take her earnings. The report of the referee must, therefore, be set aside.