Page:Federal Reporter, 1st Series, Volume 4.djvu/359

OLaTTON V. SOHOONEQ SLIZA B. BHOBÏ. S45 �but that where there is a charter-party, billa of lading, and a particular voyage agreed upon, though the owners may dis- miss the captain, yet they would be liable in a common-law court." �But the master here is also a part owner. Does that give him any better right to hold the vessel tban he would other- wise bave ? A decisive answer is furnished by section 4250 of the Kevised Statutes. It is there enacted that the major- ity ownership of a vessel shall bave the same power to remove a master, who is also part owner, as such majority, if o-wners, bave to remove a master not an: owner; but that they "shall not apply where there is a valid written agreement subsist- ing, by virtue of which such master would be entitled to pos- session." �This not only confers upon a majority of owners the abso- lute power to remove a part owner from the command and possession of a vessel, because such power is exercisable by them against one who is not an owner, but by the cleàrest implication it enacts that nothing but a written agreement, entitling a part owner to possession, shall be available against this right of the majority. Now, if such a contract in its most comprehensive aspect, as is alleged here, had been set up against ail the libellants, would it not be clearly insufficient, under the statutes, to def eat their right to the control and pos- session of the vessel ? Can it, then, have any greater efifect against only one of them ? Obviously, such a discrimination bas not the slightest. �It results, therefore, — �1. That the majority (in înterest) of the owners of a vessel bave the power to remove the master, whether he be part owner or not, and to resume possession of her at their own pleasure. �2. That in the case of a part owner only a written agree- ment, entitling such part owner to possession, can defeat the exercise of such right. �3. That the oontraet set up here is not susceptible of spe- cifie enforcement, either by way of estoppel or by a direct pro- ceeding for that purpose, and hence is no defence «igainst the libel. ����