Part III. [for it in this action. The defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his conduct in those things that do not respect his duty to them-as if he were to commit an assault upon a third person in the course of his voyage." It may be observed, that in each of the above cases the contract upon which the action was brought was made by the master without the particular knowledge of the owners. In the first, it was made in the course of the usual employment of the vessel, and therefore the court held the owners to be bound to the performance as a general rule, although they thought the particular suit improperly brought. In the second, the contract was not made, or at least did not appear to have been made, in the course of the usual employment of the ship, and therefore the owner was not bound by it. In the last, the contract was made in the course of the usual employment of the ship, and therefore it was considered to be a contract made in substance by the owners. From the decision of the last of the above cases, it seems also to follow, that if the master make a particular engagement or warranty relating to the conveyance of merchandise according to the usual employment of the ship, the owners will be bound by such engagement or warranty, although made without their knowledge. And the law was so laid down by Lord KENYON, in his directions to a jury upon the trial of an action (a) brought by a merchant against the owners of a ship on a warranty that the ship should sail with convoy from the place of rendezvous, which had not been complied with. A broker in London had been employed by the master to advertise the ship as a general ship, bound to Hamburgh; and in the printed papers the broker had inserted a clause purporting that the ship was to sail with convoy from the place of rendezvous. There was no evidence given either of the assent or dissent of the defendants (the owners) to this warranty, or of their knowledge of it; but there was contradictory evidence upon a question made at the trial, whether the master had forbidden the broker to insert this clause. His lordship, however, told the jury that he thought that point quite immaterial, for as the broker was authorized to advertise the ship, the owners were answerable to strangers for his acts, although he had exceeded his authority, and must seek their remedy against him: and the plaintiff succeeded in the cause. From this rule of law, by which the owners are bound to the performance of these contracts, it follows as a corollary, that they must answer for a breach of them, although committed by the master or mariners against their will, and without their personal fault.] (a) Rinquist v. Ditchell, Guildhall Sit. p. Mich. Term, 40 Geo. 3. 4. Master's Authority, when limited. [But if the owners themselves have made a special contract for the employment of their ship, the master cannot, by the general and implied authority of his character as master only, annul such a contract, and substitute another for it with the other contracting party (b). It seems also, that the master of a trading ship, entrusted to his command for the purpose of procuring goods on freight, cannot bind the owners by an engagement to carry goods free of freight. Such an engagement certainly will not be within the scope of his authority as above described (c). 5. Ground of the Liability of Owners on the Contracts The great responsibility which the law of commercial nations cast upon the owners for the acts of the master in this and other cases has appeared to many persons, at first view, to be a great hardship; but laying aside all consideration of the opportunities of fraud and collusion, which would otherwise be afforded, it should always be remembered that the master is elected and appointed by the owners, and by their appointment of him to a place of trust and confidence, they hold him forth to the public as a person worthy of trust and confidence; and if the merchants whom he deceives could not have redress against those who appointed him, they would often have just reason to complain that they had sustained an irreparable injury through the negligence or mistake of the owners, as the master is seldom of ability to make good a loss of any considerable amount.] (b) By Lord ELLENBOROUGH, Ch. J., in Burgon v. Sharpe, 2 Campb. 529. Sickens v. Irving, 29 L. J. C. P. 25. (c) [Dewell v. Moxon, 1 Taunt. 391.] Reynolds v. Jex, 34 L. J. Q. B. 251. See Mercantile and Exchange Bank v. Gladstone, 37 L. J. Ex. 130, L. R. 3 Ex. 233. Nor can he, by signing bills of lading for goods which have never been shipped Chap. 2. Part III. CHAPTER III. OF THE AUTHORITY OF THE MASTER WITH REGARD TO REPAIRS AND SECT. 1. Of the Liability of Owners of Ship and Employers of Master upon his 2. Of their personal Liability on his Contracts for Necessaries, p. 91. 3. Of Charges on the Ship in Specie. as in Civil and Maritime Law. Repairs done in England not privileged 4. Doctrine and Jurisdiction of the Court of Admiralty, p. 102. 5. In foreign ports Master may hypothecate his Ship, but not generally at the residence of his Owners. Of Contracts by Bottomry, p. 104. 6. Requisites to validity of Bottomry Securities, p. 110. 7. Must be for relief of Ships' Necessities, p. 113. 8. Proceedings in Admiralty upon them, p. 115. 9. If several Securities of this kind, the last entitled to priority, p. 117. 10. Extent to which Freight and Cargo may be pledged, p. 118. 11. Respondentia, 121. 1. Of the Liability of Owners of Ship and Employers of Master upon his Contracts. Of proceedings against them personally, and against the Ship. [THE obligation to which the master of a ship may subject the owners to pay the charge of repairing their ship, and the price of stores and provisions supplied for the use of it, or to repay money advanced for those purposes, is sometimes direct, furnishing an action against themselves personally; sometimes indirect, to be prosecuted by a suit against the ship. It is proposed in the present chapter to consider it distinctly under each of these forms. It should be premised, however, that the master is always personally bound by a contract of this kind made by himself, unless he takes care by express terms to confine the credit to his owners only (a). But such a contract made by the owners themselves (b), or under circumstances which show that credit was given to them alone (c), gives the creditor no right of action against the master.] (a) [Rich v. Coc, Cowp. 636.] Garnam v. Bennett, 2 Stra. 816. Wilkins v. Carmichael, Dougl. 101. Farmer v. Davies, 1 T. R. 108. Hoskins v. Slayton, Ca. temp. Hardw. 376. Essery v. Cobb, 5 C. & P. 358. Castle v. Duke, 5 C. & P. 359. Thompson v. Findon, 4 C. & P. 158. (b) Farmer v. Davies, 1 Term Rep. K. B. 108. (c) Hoskins v. Slayton, before LEE J., at Guildhall, Cases temp. Hardwicke, 376. [It should be observed also, that the owners here spoken of are not Chap. 3. in all cases the persons (d) in whom the absolute legal title of the ship may be vested, but rather those from whom the master derives his authority, and whose agent he is, on the particular occasion. Some remarks have been offered on this head in the first chapter of this Treatise (e). The owners of a packet employed by the Government to carry the mail are answerable for stores ordered by the captain, although he is nominated by the postmaster-general (ƒ). 2. Of their Personal Liability on his Contracts for Necessaries. I have in the preceding chapter stated the nature and grounds of the owners' obligation, in the case of contracts made by the master for the carriage of merchandise in their ship. Their obligation, in the case of his contracts now under consideration, is of the same nature, and depends upon the same principles-for, as those relate to the employment of the ship, so these relate to the means of employing it; and accordingly we find the obligation of the owners in both cases laid down in the very same parts of the civil law (g), and treated] (d) The power of a master, appointed by a charterer, to pledge the ship by bottomry contract, does not appear to have been questioned in our courts. Charterparties sometimes contain an express provision that a particular person shall be the master. Generally he is appointed by the owner, but whether for the purposes of the ship's ordinary employment he be the servant of the owner, or of the charterer, will often be matter of question. He may, as we have seen (ante, p.30 ), be himself the charterer. In that character, or as a servant of the charterer, his duty in respect to bottomry contracts would be one of extreme delicacy, inasmuch as his bond may pledge the ship to an extent much exceeding his own interest in it, or the interest of his employer. But besides this ordinary authority, he is clothed, virtute officii, with the character of a special owner of the ship, representing not merely the absolute owner (Dominus navis), but also the temporary owner or charterer (Exercitor navis). "He has not the mere charge of it as servant : Magister navis accipere debemus cui totius navis cura mandata est.-Dig. lib. 14, tit. 1. See the observations of Mr. Justice STORY, in his Treatise on Agency, p. 91. The same learned judge (American edit. of this work, p. 126) cites, with approval, a decision, in the case of Breed v. The Ship Venus, by the district judge of Massachusetts. The ship belonged to Boston, and was chartered on a voyage to Bristol, in England, and back to Boston. On the homeward voyage she was compelled to go into Kinsale, in Ireland, to refit, and there the necessary sum for the repairs was advanced by a person connected in business with the charterers, and a bottomry bond was taken in their name for the amount. The ship completed her voyage, and was libelled in the Admiralty on the bottomry bond by the charterers, and a decree passed in their favour. On that occasion Judge DAVIS said that he did not find any authority, either from decided cases or general principles, to introduce the limitations contended for either as to the rights of the master or the charterers; that the master, although appointed by the charterers, must be considered as approved by the owner-and he had the same authority as if appointed by the owner; and that although the charterers might have advanced their money, and have recovered the amount, on the covenant in the charterparty by the owner to keep the ship in repair, yet they were not bound to do so; and by entering into the bottomry contract, they waived their remedy on the charterparty for the advances made for repairs. See also the case of the Trident, post, p. 108.— Mr. Justice Shee. (e) Ante, p. 20, et seq. The transferee of a ship when she is out at sea or in a foreign port with which there is no opportunity of communicating, will be presumed to adopt the master or person who is then in command as his agent, until there has been an oppor tunity of appointing_another in his place. Robins v. Power, 27 L. J. C. P. 257. (f) Stokes v. Carne, 2 Campb. 339. (g) Dig. De Exercitoriâ Actione, 14, 1, 1, 8, and 14, 1, 1, 7. Part III. [under one head. And as the master in general appears to all the world as the agent of the owners in matters relating to the usual employment of the ship, so does he also in matters relating to the means of employing the ship; the business of fitting out, victualling, and manning the ship being left wholly to his management in places where the owners do not reside, and have no established agent, and frequently also even in the place of their own residence. His character and situation furnish presumptive evidence of authority from the owners to act for them in these cases, liable indeed to be rebutted by proof that they, or some other person for them, managed the concern in any particular instance, and that this fact was actually known to a particular creditor, or was of such general notoriety that he cannot be supposed to be, because he ought not to have been, ignorant of it, or that they were by the terms of the contract expressly excluded (a).] Supplies must Thus, where the charterer of a vessel agreed by the charter-party that, on the arrival of the ship at the outward port, he would, through his agent there, supply cash to the master for the disbursement of the vessel, to be repaid by bills to be drawn by the master on the owner, and on the arrival there the agent supplied goods for the use of the crew, and paid certain money demands made on the master, but did not advance any actual cash; it was held, that although no bills were drawn by the master, yet as he had, independently of the stipulations of the charter-party, authority to obtain supplies of goods and necessaries for the use of the ship, the owner was liable to the charterer for the amount (b). [It is scarcely necessary to remark, that the master's contract with the mariners employed in the navigation of the ship is one of those which are obligatory upon the owner; but it is proper to mention, because the point has once been contested, that his contract with an occasional pilot is of the same nature (c). In order, however, to constitute a demand against the owners, it is be necessary. nccessary that the supplies furnished by the master's order should be reasonably fit and proper for the occasion, or that money advanced to him for the purchase of them should at the time appear to be wanting for that purpose. The contrary, in either case, would furnish a strong presumption of fraud and collusion on the part of the creditor. The proper mode of ascertaining what is necessary is to ask what a prudent owner would himself have done had he been present,] and the onus of proof that the goods or money supplied were necessaries is on the plaintiff (d). (a) [Bland, ex parte, 2 Rose, 91;] Williamson v. Page, 1 Carr. & K. 581; the Alexander, 1 Wm. Rob. Rep. 361. See also observations on this passage by Lord CAMPBELL, in Frost v. Oliver, 2 E. & B. 301; Mitcheson v. Oliver, 5 E. & B. 419; and Gleadon v. Tinkler, Holt, Rep. 586. See Brodie v. Howard, 7 C. B. 109. As to the liability of a part-owner, see ante, p. 62. (b) Weston v. Wright, 7 Mee. & W. 396. Vaughan v. Fitzhugh, 3 Jur. 1002. (c) The Nelson, 6 Rob. A. R. 227. (d) See Webster v. Seekamp, 4 B. & A. 352; Mackintosh v. Milcheson, 4 Exch. 175. |