Mortgagee. The Creditor. management, and direction of the vessel, and in ordering the goods and repairs.' A mortgagee of the ship, though not to be deemed owner, has so much of the right and incidents of ownership on taking possession, that freight then accruing becomes payable to him;' but he is not liable for any debts incurred for the ship before that time, although under the very peculiar circumstances of a particular case, a court of equity giving him priority over a purchaser ordered him to pay the expense of the outfit for the voyage which had been advanced by the other." 4 The shipwright, however, is not without an easy remedy, when the vessel is in his possession, by means of his lien for repairs upon it at common law, unless he is deprived of that right by a usage of the trade at the particular port, as in the case of London; but he has no claim at common law, for rent during the period of adverse detention under his lien. There is no implied maritime lien in this country on vessels for repairs done or necessaries supplied; but in case the vessel were sold under a decree in rem, the Court of Admiralty was in the habit, at one time, of permitting such creditors to rank against the proceeds in the treasury;" this practice, however, being contrary to principle, was disallowed on appeal to the privy council." Generally, the creditor has a double remedy, by proceeding either against the master, who made the contract, or against the owner, for whom it was made; " but as against the owner, it 1 Mitcheson v. Oliver, 5 E. & B. 419, 444, 445; 25 L. J. (Q. B.) 39, 42, S. C.; see Tibbald v. Hood, 1 F. & F. 287. 2 17 & 18 Vict. c. 104, § 70. 3 Kerswell v. Bishop, 2 Cr. & J. 529 ; Jackson v. Vernon, 1 H. Bl. 114. 7 Raitt v. Mitchell, 4 Camp. 146. 12 8 The British Empire Shipping Co. v. Soames, 27 L. J. (Q. B.) 397; affirmed in error, 28 L. J. (Q. B.) 220. 9 Justin v. Ballam, 1 Salk. 34; 2 Ld. Raym. 805, S. C.; Cro. Car. 296; 1 Sid. 453; 1 Lev. 267; per Lord Stowell, The Zodiac, Scott, 1 Hag. Ad. 320, 325. 10 The John, Jackson, 3 C. Rob. Ad. 288. "The Neptune, 3 Knapp, 94. 12 Per Lord Mansfield, Rich v. Coe, Cowp. 639; per id. Farmer v. Davies, 1 T. R. 108, 109; per Tindal, C. J.; Thompson v. Finden, 4 C. & P. 159. lies on the plaintiff to prove his authority for the act of the master. A ship's husband however is prima facie the agent of all the owners for the management of the ship with the requisite authority for that purpose, and any defence in derogation of such implied authority, either that the agent was not to deal on credit, or only to pledge his own name, must, it seems, be proved by the owner as being known to the creditor. But the creditor by taking the agent's bill for the debt, and afterwards renewing it, or electing to take a bill when he might have had cash, or to rely on the responsibility of the agent alone, may thereby lose the right of proceeding against the principal, especially if the situation of the latter is altered for the worse in consequence of such dealings with the agent." If the owners have not, by leasing the ship, divested them- Master as Agent. selves of all control and responsibility, the authority of the master appointed by them is necessarily greater in a foreign country, where he is their confidential agent, and entrusted with their property to employ it, subject to their instructions, and the usual course of the ship's employment, in the way that appears the most calculated for their profit and advantage. They are bound, therefore, by all his contracts about the usual employment of the ship, and for such repairs, supplies and equipment, as are necessary to enable her to discharge her cargo in a proper state at the port of destination, and to carry her eventually to the home port in safety." As owners, they are answerable for damage occasioned by the EXTENT OF negligence of the master or crew in the course of their lawful 1 See cases, ante, p. 103, n.3; Brodie t. Howard, 17 C. B. 109; Mitcheson v. Oliver, 5 E. &. B. 419. Whitwell. Perrin, 4 C. B., N. S. 412; Thompson r. Finden, 4 Car. & P. 159; Green . Briggs, 6 Hare, 395; Lindsay r. Güb, 4 Jur. N. S. 779; (in error) 25 L J. (Ch.) 692; Holderness v. Shekels, & B. & C. 612; Preston v. Tampin, 2 H. & N. 363; (in error) 2 .: Lewis . The East India Co. Prike, 241.. Reed r. White, 5 Esp. 122, if not overruled; Wyatt e. Marquis of Hert ford, 2 East, 147; Strong v. Hart, 6 4 What contract amounts to that in 5 Molloy de Jure Marit. bk. 2, c. 2, OWNERS' LIABI- At Common Law. employment, to the full extent, at common law, of the injury sustained in ship, goods, or person; and if the injured person die by the accident, his family and relations are entitled by statute,' to maintain an action for the loss suffered by them in consequence. But for the wilful default of a servant, notwithstanding it be in the course of his employment, and occasion damage to another, no employer is responsible; and when the damage is a consequence of the non-observance of certain statutory rules of the sea, it is presumed, in the absence of other evidence, to have been occasioned by the wilful default of the person who was in charge of the deck at the time.' By Foreign Law. 2 As common carriers of goods for hire, they are at common law in the nature of insurers against all loss or injury, occasioned to the goods delivered to them on freight, by fire or robbery, or any cause other than the act of God and the king's enemies. But their right to limit this liability by express contract is usually exercised both in the charter-party and bill of lading, by contracting for the safe carriage and delivery of the cargo," The act of God, the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers and navigation, of whatever nature and kind soever, during the said voyage, always excepted." Considered as other than common carriers, their liability is determined by the contract in each case, subject to such stipulations as are implied in it by common law or usage, and not excluded in express terms by the parties thereto. This rule of the common law of England, measuring the liability of the owners by the full extent of the injury sustained, is also the rule of the civil law, and of the general law maritime. It accords with natural justice, though it differs 19 & 10 Vict. c. 93. 2 McManus v. Crickett, 1 East, 106; Ellis v. Turner, 8 T. R. 531, 533; The Druid, Newton, 1 W. Rob. Ad. 391; Bowcher v. Nordstrom, 1 Taunt. 568; see Gregory v. Piper, 9 B. & C. 591. 3 17 & 18 Vict. c. 104, § 299. But See Macklin v. Waterhouse, and Forward v. Pittard, 1 T. R. 27; Hyde v. Trent Navigation Co. 5 T. R. 389; Chitty on Contr. 423. 5 So far as the terms of this exception have been the subject of judicial decision, they will be considered hereafter with the instruments in which they appear, post, c. viii. and xi. 6 The Carl Johann, cited in The Dundee, Holmes, 1 Hagg. Ad. 109, 113; The Girolamo, Guiranovich, 3 Hagg. Ad. 187. 1 from modern policy; and as might be expected, sea-faring nations generally knew no other during the early centuries of the maritime history of modern Europe. Yet this is somewhat remarkable, inasmuch as the Consolato, not of recent fame, in at least two different chapters, expressly limits the responsibility of a part-owner to the value of his share in the ship.' 2 The ancient laws of Oleron, Wisby, and the Hanse-Towns, contain no provision on this subject; nor is any alteration of the rule of the civil law noticed by Roccus; but Vinnius, an earlier author, states, that by the law of Holland, the owners. are not chargeable beyond the value of the ship and the things that are in it. The Hanseatic Ordinance of 1614 had already pronounced the goods of the owner discharged from the claim for damage by the sale of the ship to pay it; and in conformity therewith, the French Ordinance of 1681 declares, "that the owners of ships shall be answerable for the acts of the master, but shall be discharged therefrom upon relinquishing their ship and the freight." A similar provision in the Ordinance of Rotterdam, made in 1721, declares, "That the owners shall not be answerable for any act of the master done without their order, any further than their part of the ship amounts to: and, by other articles of the same ordinance, it appears, that each part-owner is liable only for the value of his own share." Valin, in his commentary on the French Ordinance, informs us that the same regulations are also established at Hamburgh.' 5 8 The earliest provision of the British legislature on this By the former subject, is a statute passed a few years after the date of the Ordinance of Rotterdam, in consequence of a petition presented 1 Consolato, c. 141, 182-2 Pardess. 155, 206. The Notabilia of this author, who was a Neapolitan, were first published in 1655. In Peckium, 155, published in 1647, the author cites Grotius, lib. 3. Introde, ad. Jurisp. Bat. c. 1; and de Jure Bellit Pacis, lib. 2, c. 11, § 13. Hans. Ord. 1614, t. 10, art. 2-2 Pardess. 551. $ Liv. 2, tit. 8, Des Propriétaires, art. 2. The encouragement of maritime 6 Art. 167, Magens, 107. 7 Art. 126, 127; 2 Magens, 101, 102. 9 An extract from the Ordin. of Statute Law of By the Law of to the House of Commons by several merchants and other persons, owners of ships belonging to the port of London,' setting forth the alarm of the petitioners at the event of a late action, in which it was determined that the owners were answerable for the value of merchandise embezzled by the master. This statute, accordingly limited the liability of the owners, in case of embezzlement of the goods and merchandise on board by the master or mariners, and without the privity or knowledge of such owners, to the value of the ship and freight. Fifty years after this, namely, in the October of 1784, a vessel in the Thames having been forcibly robbed of a large amount of specie, an action was brought against the owners, and, at the trial, although it was proved that one of the mariners was accessory to the robbery, Lord Mansfield, expressing a doubt. whether the facts of the case could be covered by the word ' embezzlement,' directed a verdict for the full amount. This ruling was disapproved of by the full court,' but it sufficed to alarm the shipowners of London, and upon another petition to the House of Commons, the second statute' was passed, extending protection to the owners in cases of robbery without the privity of the master or mariners. The protection thus accorded to them was greatly enlarged afterwards by the 53 Geo. 3, c. 159, but these various statutes were repealed in 1854, and the existing law on the subject is now consolidated in the Merchant Shipping Act of that year. Absolute as the terms of the French Ordinance, repeated in the Code,' appear to be, it seems that the faits du Capitaine, from which the owner was discharged by the abandonment of the ship and freight, were restrained by the Courts of France aux seuls délits, quasi-délits, faits de négligence, impéritie, imprudence, et autres produisant des dommages qui donnent 1 See Commons Journals for the year 1733, page 277, the case referred to by the petition, appears clearly to be that of Boucher v. Lawson, R. temp. Hardw. 85. The bill went through both houses without a division. The clauses directing proportional compensation and relief in equity were introduced in the House of Lords. 27 Geo. 2, c. 15, A.D. 1734. 3 Sutton v. Mitchell, 1 T. R. 18. 4 Com. Jour. 1786, p. 296. 5 26 Geo. 3, c. 86. This Act passed without a division in either House of Parliament. 6 By the 17 & 18 Viet. c. 120. |