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years to be liable to the rent reserved, and the mortgagee of a ship to be liable to the repairs; although his Lordship, and the other Judges, declined to give a positive opinion on these points, because the determina-. tion of them was not necessary to the decision of that

cause.

14. Upon a subject, on which persons of such exalted rank and eminent talents have differed in opinion, it would be presumptuous in the author of this treatise to offer an opinion of his own. It may be remarked, however, that neither of the cases before-mentioned seems to afford an authority upon the general and abstract question of the right or obligation of the mortgagee ; for in the first the mortgagor himself at Antigua acted personally in the management of the ship [21] as owner; in the last, the mortgagor himself ordered the repairs, and therefore the credit might not unreasonably be deemed in law to have been given, as in fact it certainly was, to him, and not to the mortgagee. The general question will most properly arise in the case of a contract made by the master in that character. And by way of advice and caution, I may with propriety say, that every person, who takes a mortgage of a ship, must, until these points shall have received a more solemn determination, consider it to be possible at least, that he may expose himself to a loss by the very act, from which he expects a security (1).

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(1) In the case of Hodgdon v. Butts, 3 Cranch, Rep. 140. the question of the liability of a mortgagee was argued, but not decided by the court. In that case, A. and B. bargained and sold to the plaintiff by deed, the Schooner Mississippi, then lying in Alexandria, and the cargo of the ship Hannah, then at

15. In this chapter it is proper also to mention another point, upon which different judgments have been pronounced, namely, who, in the case of a ship chartered to one person, is to be considered as owner with respect to another person, whose goods have been shipped under the authority of the charterer.

sea, to indemnify the plaintiff for indorsement of notes to the amount of $10,000, and if A. and B. should indemnify the plaintiff in a certain time after the arrival of the schooner or ship from the voyage, which ever should first occur, then the deed should be void; and on failure to indemnify as aforesaid, the plaintiff was to be at liberty to sell the cargo of the ship and the schooner and cargo. In the same deed the said A. and B. bound themselves executors and administrators, and also the freight and inward cargo of the schooner, and the cargo of said ship to exonerate the plaintiffs; a memorandum of the mortgage (as of the schooner) was indorsed on the schooner's register, and delivered to the defendant, who was the master of the schooner, and who sailed from Alexandria to New Orleans, and from thence to Jamaica, and from thence returned to Alexandria. On the return of the schooner, and not before, she was put into the actual possession of the plaintiff under a new and absolute bill of sale executed at that time by A. and B. The defendant received the freight from New Orleans to Jamaica. It appeared in evidence that the instructions for the voyage were given by A. and B., and the whole was conducted under their management. At the commencement of it the said A. and B. were indebted in a considerable sum to the defendant for wages and disbursements in a prior voyage, which, and another sum the defendant was directed to discharge out of the accruing freight by one of the partners. After the voyage was ended, and before possession was delivered to the plaintiff, the defendant set#led with A. and B. and deducted the sums aforesaid in his ac

16. In the case of Parish against Crawford (p), an action was brought against the defendant as owner of a ship, upon a promise alleged to have been made by him to the plaintiff to convey in his ship a quantity of moidores from London to Barbadoes, which had not

been delivered there. The facts of the case [22] were, that the defendant, the owner, had chartered the ship to one Fletcher for the voyage in question for a certain sum, and Fletcher was to have the freight of goods, but the freight of passengers was reserved to the defendant; and the defendant appointed the master, and covenanted with Fletcher for the condition of the ship and behaviour of the master. Fletch- . er took on board the moidores and other goods of the

(p) Shortly reported in 2 Stra. given is taken from a manuscript 1251. The account of the case here note much fuller than the report.

count. After the plaintiff had received possession of the schooner, he paid the expences and disbursements of the voyage by the orders of the defendant; but never gave any notice to the defendant that he should look to him for the freight until afterwards. The action was brought to recover the freight, or the disbursements paid. On these facts the Circuit Court of Columbia were of opinion that the plaintiff was not entitled to recover. And on error to the Supreme Court, the cause went off upon another ground. But the court said, "that it did not appear that the plaintiff had paid the disbursements in the confidence "of receiving the freight, or that he was not compellable to pay. "them as owner of the vessel. The freight had previously been applied by the defendant under the authority of A. and B. to payment of a debt due to himself. He had a right, as a "general creditor, to retain that freight as against the original

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plaintiff and other persons, and received the freight for them. For the defendant it was objected, that although the ship was his property, yet he was not owner in such a manner as to be liable to this action, but that Fletcher was for this purpose the owner. Chief Justice Lee, however, before whom the cause was tried, was of opinion that the action might be maintained; and the plaintiff recovered damages to the value of the ship and freight (q). The sentiments delivered on this occasion by the Chief Justice were as follows: "The true con"sideration is, whether by any thing done by Crawford, "who is confessedly the owner of the vessel, in chart"ering it to Fletcher, he has discharged himself as own"er? Crawford considers himself as the governor of "the ship, and so covenants. for the government of it, "during the voyage, and the ship was navigated by his "master. Upon what foundation then is an owner 66 chargeable, but upon these two considerations? First, "The benefit arising from the ship, which is "the equitable motive. Secondly, The hav- [23] "ing the direction of the persons who navi

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gate it. And it is upon these two things taken to"gether, that the implied contract arises. Though "Crawford has not that freight, which the merchants

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pay for their goods, yet as he has the benefit of the "freight in general, he has that equitable motive which "makes him liable. With regard to Fletcher, what "Crawford has done is only giving him a power to put

goods on board. And it seems to me, the makers of "the act of parliament could not have any notion of "such an owner of the ship, for it speaks generally of

(q) 12 Geo. 2. c. 15. A statute the owners. See Part the Third which limits the responsibility of Chap. 5

"owners of ships; but this Fletcher is not to be considered as owner of the ship in any light, but only as "having a power to make use of it in this way. If this

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was to be considered in the nature of a mortgage, it "would be delivering up the ship for such time as the mortgage should be in force. Therefore I think there "is nothing appearing upon this evidence, that dis"charges Crawford as the owner of the ship."

17. But the force of the decision in this case of Parish against Crawford, appears to be weakened by a more recent determination. In the case of James a

gainst Jones & others (r), an action was brought [24] against the defendants as owners of the ship Sea-Flower for the loss of a quantity of raisins One Thomas, the

on a voyage from Faro to London. master of the ship, had, in his own name as master, and in the absence of the owners, chartered the ship to Reed and Parkinson on a voyage from Falmouth to Faro and back to London; and Reed and Parkinson engaged by the charter-party to provide a full lading from Faro, and to pay a stipulated price per ton. The goods in question were shipped at Faro, by the consent of the agent of Reed and Parkinson at that place, and Thomas, the master, signed a bill of lading, engaging to deliver them to the plaintiff, "he paying freight per charterparty." These facts appearing at the trial of the cause before Lord Kenyon, his Lordship was of opinion, that Reed and Parkinson were, with respect to the plaintiff, the owners of the ship pro hac vice; that the defendants, Jones & others, were not responsible to him, and consequently that the plaintiff could not maintain

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(r) James v. Jones and others, Guildhall Sit. after Trin. Term, 39 Geo. 3. There is a short note of this

case in Espinasse'a Nisi Prius cases, Vol. iii. p. 27

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