Bat, Judge,
delivered the opinion o£ the court.
In the year 1855, Lucien Carr and Alexander S. Buchanan brought suit in the Court of Common Pleas against the steamboat Michigan upon an' allfeged contract of affreightment, and caused said boat to be seized under our statute relating to boats and vessels. Sheble, the master of the boat, procured her release, by giving bond as provided by the 14th section of said act, and, at his instance and request, the plaintiff in this suit became security in the bond. Judgment was rendered against Sheble and his security, which was paid by the security upon execution; and this suit was brought against the defendants, as owners of the boat, to recover the amount so paid. Judgment being given against them, they appeal so this court.
[236]*236Upon the trial of the cause the plaintiff read in evidence a certified copy of the enrolment of the boat in the customhouse at St. Louis, in which the names of defendants appear as owners. Also, the record and proceedings in the case of Carr and Buchanan against the boat, together with the bond upon which she was released. It was also shown that the security paid on the execution, the amount of judgment, interest and costs, making in the aggregate the sum of three hundred and fifty dollars and ninety-seven cents. There was no evidence tending to show that defendants caused plaintiff to become security in the bond, or even knew that the boat had been seized. There was, in fact, no evidence, outside of the enrolment of the boat, connecting the defendants in anywise with the transaction. They did not participate in the defence of the Carr and Buchanan suit. The transaction was managed and controlled exclusively by the master. The liability of the defendants is attempted to be fixed upon the sole fact that they were the owners of the boat, and the court below upon this theory, and assuming this to be the law, gave the instructions asked for by plaintiff, and refused those asked by defendants.
It is not questioned that, as a general rule, the master of a vessel is the agent of the owners, and can by his acts in many respects bind the owners; but his power arising under such agency is largely restricted, and subject to numerous limitations. All contracts made by him for wages of seamen and for supplies, reasonable and necessary, will bind the owners, particularly if made in a foreign port. If the vessel be in a foreign port, the master can bind the owners by many acts which in a home port would be outside of the scope of his authority, and, therefore, imposing no liability upon them.
This distinction is well laid down in the books, and exists from necessity, for it is presumed that in a foreign port the owners cannot exercise that supervision over the vessel which may be necessary for her safety and the success of the voyage. A large latitude is, therefore, given to the power and authority of the master as agent of the owners. Thus, in [237]*237Thomas v. Osborne, 19 How., p. 22, the Supreme Court of the ^United States say that the master of a vessel of the United States, being in a foreign port, has power in ease of necessity to hypothecate the vessel, and also to bind himself and the owners personally for repairs and supplies; and he does so without any express hypothecation when, in a case of necessity, he obtains them on the credit of the vessel without bottomry bond. “ The limitations of the authority of the master to cases of necessity, not only of repairs and supplies, but of credit to obtain them, and the requirement that the lender or furnisher should see to it, that apparently such a case of necessity exists, are as ancient and well established as the authority itself.”
So in case of Milward v. Hallett, 2 Cranch. 77, the same court held, that if the master, in the course of the voyage, is compelled to pay duties in order to obtain a clearance of the cargo, or freight, he may bind the ship owner to the payment;
These cases rest upon the principle of necessity, but in the absence of such necessity the law is otherwise. When the owner is himself present, or within easy access, that agency of the master, which is founded on necessity, disappears, for the necessity has ceased to exist. (1 Parsnos on Mar. Law, 380.)
Thus it is held that a master of a vessel has no right, merely as master, to procure insurance for the owners, nor can one tenant in common of a vessel, merely in virtue of such relation, cause insurance to be made on property on board for his co-tenant. (Foster et al. v. United States Ins. Co., 11 Pick. 85; Bell v. Humphreys, 2 Stark. 345.)
In Jordan v. Young, 37 Maine, 276, the Supreme Court of Maine went so far as to hold that the master in a home port could not order repairs to be made. The judge, in delivering the opinion, said :
“ The master of the vessel can do all things necessary for the prosecution of the voyage. But this authority does not usually extend to cases where the owner can personally [238]*238intefere, as in the home port. If the vessel be at a home port, but at a distance from the owner’s residence, and provisions or other things required to be provided promptly, then the occasion authorizes the master to pledge the credit of the owner. There is nothing in the present case to indicate an exigency so pressing as to preclude an application to the owner before the repairs were made, and the master, merely as such, could not make the owner liable for them.”
In the navigation of our western rivers the strict rules of maritime law have never been so rigidly enforced. Here it is admitted that the master, in his capacity of agent, may, even in the home port and where the owner resides, employ persons to serve on the boat, and may contract for stores and supplies ; and, to give still greater security to this class of claims, the legislature have provided that they shall constitute a lien upon the boat itself.
But the master has no power to execute a note in the name of the owner payable to the pilot for wages due him, the authority for such purpose not being implied from the relation that subsists between master and owner. (Grigg v. Robbins, 28 Mo. 347.)
We have been particular in noting the distinction between contracts of the master made in a foreign port and those in a home port, for the reason that it has a special application to the case under consideration. Here the boat was seized in the port of St. Louis, her home port, and the place of defendant’s residence. No necessity existed for any particular action on the part of the master. The owners were on the ground, and could have given the statutory bond if they desired her discharge, or, if the master thought proper to execute the bond in his own name, he could have called upon the owners to furnish the security. It is true that our statute provides that the boat shall be discharged if the captain, owner, agent or consignee shall give the bond required; but it is not a duty imposed on either, and it does not necessarily follow that if the captain or consignee shall volunteer a bond, the person who shall, at the request and by the procurement [239]*239of such captain or consignee, execute the same as security, shall have a cause of action against the owner to reimburse him for any loss he may sustain thereby.
To create such a liability there must be some privity between them, either in fact or in law.
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Bat, Judge,
delivered the opinion o£ the court.
In the year 1855, Lucien Carr and Alexander S. Buchanan brought suit in the Court of Common Pleas against the steamboat Michigan upon an' allfeged contract of affreightment, and caused said boat to be seized under our statute relating to boats and vessels. Sheble, the master of the boat, procured her release, by giving bond as provided by the 14th section of said act, and, at his instance and request, the plaintiff in this suit became security in the bond. Judgment was rendered against Sheble and his security, which was paid by the security upon execution; and this suit was brought against the defendants, as owners of the boat, to recover the amount so paid. Judgment being given against them, they appeal so this court.
[236]*236Upon the trial of the cause the plaintiff read in evidence a certified copy of the enrolment of the boat in the customhouse at St. Louis, in which the names of defendants appear as owners. Also, the record and proceedings in the case of Carr and Buchanan against the boat, together with the bond upon which she was released. It was also shown that the security paid on the execution, the amount of judgment, interest and costs, making in the aggregate the sum of three hundred and fifty dollars and ninety-seven cents. There was no evidence tending to show that defendants caused plaintiff to become security in the bond, or even knew that the boat had been seized. There was, in fact, no evidence, outside of the enrolment of the boat, connecting the defendants in anywise with the transaction. They did not participate in the defence of the Carr and Buchanan suit. The transaction was managed and controlled exclusively by the master. The liability of the defendants is attempted to be fixed upon the sole fact that they were the owners of the boat, and the court below upon this theory, and assuming this to be the law, gave the instructions asked for by plaintiff, and refused those asked by defendants.
It is not questioned that, as a general rule, the master of a vessel is the agent of the owners, and can by his acts in many respects bind the owners; but his power arising under such agency is largely restricted, and subject to numerous limitations. All contracts made by him for wages of seamen and for supplies, reasonable and necessary, will bind the owners, particularly if made in a foreign port. If the vessel be in a foreign port, the master can bind the owners by many acts which in a home port would be outside of the scope of his authority, and, therefore, imposing no liability upon them.
This distinction is well laid down in the books, and exists from necessity, for it is presumed that in a foreign port the owners cannot exercise that supervision over the vessel which may be necessary for her safety and the success of the voyage. A large latitude is, therefore, given to the power and authority of the master as agent of the owners. Thus, in [237]*237Thomas v. Osborne, 19 How., p. 22, the Supreme Court of the ^United States say that the master of a vessel of the United States, being in a foreign port, has power in ease of necessity to hypothecate the vessel, and also to bind himself and the owners personally for repairs and supplies; and he does so without any express hypothecation when, in a case of necessity, he obtains them on the credit of the vessel without bottomry bond. “ The limitations of the authority of the master to cases of necessity, not only of repairs and supplies, but of credit to obtain them, and the requirement that the lender or furnisher should see to it, that apparently such a case of necessity exists, are as ancient and well established as the authority itself.”
So in case of Milward v. Hallett, 2 Cranch. 77, the same court held, that if the master, in the course of the voyage, is compelled to pay duties in order to obtain a clearance of the cargo, or freight, he may bind the ship owner to the payment;
These cases rest upon the principle of necessity, but in the absence of such necessity the law is otherwise. When the owner is himself present, or within easy access, that agency of the master, which is founded on necessity, disappears, for the necessity has ceased to exist. (1 Parsnos on Mar. Law, 380.)
Thus it is held that a master of a vessel has no right, merely as master, to procure insurance for the owners, nor can one tenant in common of a vessel, merely in virtue of such relation, cause insurance to be made on property on board for his co-tenant. (Foster et al. v. United States Ins. Co., 11 Pick. 85; Bell v. Humphreys, 2 Stark. 345.)
In Jordan v. Young, 37 Maine, 276, the Supreme Court of Maine went so far as to hold that the master in a home port could not order repairs to be made. The judge, in delivering the opinion, said :
“ The master of the vessel can do all things necessary for the prosecution of the voyage. But this authority does not usually extend to cases where the owner can personally [238]*238intefere, as in the home port. If the vessel be at a home port, but at a distance from the owner’s residence, and provisions or other things required to be provided promptly, then the occasion authorizes the master to pledge the credit of the owner. There is nothing in the present case to indicate an exigency so pressing as to preclude an application to the owner before the repairs were made, and the master, merely as such, could not make the owner liable for them.”
In the navigation of our western rivers the strict rules of maritime law have never been so rigidly enforced. Here it is admitted that the master, in his capacity of agent, may, even in the home port and where the owner resides, employ persons to serve on the boat, and may contract for stores and supplies ; and, to give still greater security to this class of claims, the legislature have provided that they shall constitute a lien upon the boat itself.
But the master has no power to execute a note in the name of the owner payable to the pilot for wages due him, the authority for such purpose not being implied from the relation that subsists between master and owner. (Grigg v. Robbins, 28 Mo. 347.)
We have been particular in noting the distinction between contracts of the master made in a foreign port and those in a home port, for the reason that it has a special application to the case under consideration. Here the boat was seized in the port of St. Louis, her home port, and the place of defendant’s residence. No necessity existed for any particular action on the part of the master. The owners were on the ground, and could have given the statutory bond if they desired her discharge, or, if the master thought proper to execute the bond in his own name, he could have called upon the owners to furnish the security. It is true that our statute provides that the boat shall be discharged if the captain, owner, agent or consignee shall give the bond required; but it is not a duty imposed on either, and it does not necessarily follow that if the captain or consignee shall volunteer a bond, the person who shall, at the request and by the procurement [239]*239of such captain or consignee, execute the same as security, shall have a cause of action against the owner to reimburse him for any loss he may sustain thereby.
To create such a liability there must be some privity between them, either in fact or in law. There should be evidence to show that the security executed the bond through the insti'umentality of the owners, or that the owners subsequently ratified or acquiesced in the same. The record furnishes no such evidence in this case. It does not even appear that the plaintiff knew the owners, or had any knowledge of their responsibility. He evidently executed the bond at the instance and upon the faith and sole credit of the master. If the relation of debtor and creditor was created, between the parties, then it must be upon the idea that the master procured the security as agent of the defendants ; but no such agency was shown, and we do not think it can be implied from the relation existing between them. The case of Tom v. Goodrich et al., reported in 2 Johnson, 213, maintains the view we take in this case with respect to privity. One of five partners executed bonds to the United States for duties on goods imported on account of their firm and as their property. Tom became security in the bonds and paid them, the co-partner who executed the bonds having died. Tom brought suit against the surviving partners to recover the amount so paid, and it was held that he was not entitled to recover, there being no privity between the parties but what arises from the bond.
Kent, Ch. J., remarked, “It would be refining upon the doctrine of implied assumpsits, and going beyond every case, to consider the surety in a bond as having by that act a i’emedy at law against other persons for whom the principal in the bond may have acted as trustee.” This authority is directly in point. No question could be raised as to the authority of the partner to give the bonds, and it is evident that they were executed in satisfaction of a debt due from the firm for duties on property belonging to the firm, and the surviving partners received and enjoyed an immediate [240]*240benefit from the transaction. If, therefore, no such privity existed between Tom and the surviving partners as to create a legal liability, we do not see upon what principle it can be contended that such privity exists between the parties to this suit. We think it cannot be founded upon any well-settled principle of law.
The judgment will be reversed and the cause remanded ;
Judge Dryden concurring, Judge Bates dissenting.