Page:Federal Reporter, 1st Series, Volume 7.djvu/379

 • THE DAUNTLESS, 367 �Benedict, D. J. I think that a better justice can be ad- ministered in this case by reserving the principal points raised by the exceptions taken to the libel for determination at the final hearing, when the evidence shall be before the- court. At the same time I have no hesitation in saying that I am not able to see how acts of the master of a vessel, such as deacribed in the libel, can create a lien upon the vessel, in the absence of express authority from the owners of the vessel, or a subsequent ratification by them, and no such anthority or ratification is averred in the libel. In regard to the juris- diction of the court to entertain an action to obtain posses- sion of the cargo, while there is room for doubt, my present opinion is that it can be upheld. �If the case were one of property stolen on shore and sub- sequently shipped on board a vessel, and the question were as to the right of the rightful owner of the property to reelaim it from the vessel by means of a possessory action in the ad- miralty, a different case would be presented. Here, the char- acter and situation of the property — being minerai phos- phates gathered from an island in the sea — was such that its shipment on board the vessel, and its subsequent transporta- tion therein to the port of New York, constituted a substan- tial and necessary part of the transaction. The intent to ship the property formed part of the intent with which it was gathered on the shore, It was there gathered for the sole purpose of being at once shipped. The gathering on the shore and lading on board of the ship were a single and con- tinuons transaction, and the ultimate object sought to be attained by gathering and shipping the property was its transportation by sea to the port of New York. The con- summation of the wrong, if wrong was committed, was upon the sea. These circumstances would seem to characterize the transaction as a maritime tort, and entitle the owner of the property to reelaim it from the vessel by a possessory action in the admiralty. �In Steele v. Thatch an action in the admiralty for the ab- duction of a minor and taking him to sea was upheld by Judge Ware. Ware's Eep. 85. See, also, The Bird of Par- ��� �