Owner to move in Equity for a stay of proceed

ings.

United Kingdom to recover damages in cases of death and Power of the personal injury, the owner, in order to secure the rateable distribution of the fund, may enter a suit in the Court of Chancery, the Court of Session, or any court of competent jurisdiction elsewhere, and move to stay all other proceedings against the fund;' notwithstanding any of the claimants have already obtained judgment at law, or a decree of the Court of Admiralty; and such claimants, before execution executed, or the sale of the vessel, although she is in the custody of the Admiralty officer, are proper parties to the suit.' But such court has no jurisdiction over the suit, if the owner therein disputes all liability; the permission to appeal to it being for his advantage, he must make an admission of liability; and it is for the Court then to ascertain the amount of liability in each case and distribute the fund."

The owners, upon their application to a court of equity, will be required to pay into court the value of the ship before the time of the accident, the value of the freight, and probably the amount of the costs of proceedings already taken in the matter, at least in the Court of Admiralty. Any defendant who has already obtained a decree in the Court of Admiralty for the sale of the ship, may be restrained if the Court see fit from proceeding to a sale; or, if not, from retaining out of the proceeds more than his proper costs in the Admiralty Court; and the balance of such proceeds will, in that case, be ordered to be paid into court, and further proceedings at law or in the Admiralty Court restrained."

The costs of the suit in equity, and the costs of any proceedings taken against the owners at law or in the Admiralty Court, must be paid by the owners; but there is no authority by the statute to give the claimants interest on the sums distributed to them for any part of the intermediate delay.'

1 17 & 18 Vict. c. 104, § 514.
. Leycester v. Logan, 26 L. J. (Ch.)

306.

Hill. Audus, 24 L. J. (Ch.) 229; 1 K. & J. 263.

4 Leycester v. Logan, 26 L. J. (Ch.) 306; Dobree v. Schroder, 2 My. & Cr. 489.

5 The African Steam Ship Company v. Swanzy, 25 L. J. (Ch.) 870.

Consequences of

such application

to Equity.

THE SHIP-
MASTER.

Appointment of
Master.

THE owners rarely navigate a trading ship themselves; the conduct and management of it are almost always entrusted to a master, who may, or may not, have a partial property in it. In the latter case he is the confidential servant or agent of the owners at large; in the former, of his copartners.'

This officer is charged with the safety of the ship and cargo, and of the life and health of her passengers and crew; he is required to conduct the navigation with skill, and to behave in the command with justice, temper, and consideration; and he is expected to act with prudence and judgment in all the affairs of the owners and charterers. In appointing to an office of such importance, the owners, or those of them with whom the appointment lies, being usually a majority in interest, are

1 In a recent case, it was the opinion of a majority of the Court of Exchequer that the master's implied authority enabled him to settle an unliquidated claim

for demurrage beyond the stipulated time in the charter which had arisen at a foreign port; Alexander v. Dowie, 1 H. & N. 152.

bound, by a regard to their own advantage, and much more, by their duty to others, to proceed, circumspectly, in the exercise of a free and impartial judgment; and any contract which destroys that impartiality, e.g., by obliging them, or some of them, to concur in a particular appointment, at the peril of an action, is illegal and void.'

It is not intended now to discuss the duties of the master, as the officer in command of a trading ship, since that would involve the insertion here of much that more appropriately follows in subsequent chapters; but rather to consider what authority is usually reposed in him, as the agent of the owners, to bind them by his contracts for the employment or repair of the ship, and the supply of necessaries; and how far that authority extends with regard to the ship and cargo in case of accidental damage to either, or in case of jeopardy to life and property from the perils of the sea.

FOR THE EMPLOY
MENT OF THE

By the law of England, and in conformity to the rules and HIS CONTRACTS maxims of that law in analogous cases, the owners are bound to the performance of every lawful contract made by him SHIP. relative to the usual employment of the ship. This obligation is by reason of their employment of the ship, and the profit derived by them from it. A part-owner, however, who dissents from a particular voyage in the manner mentioned in a preceding chapter, is not bound; he neither employs the ship on that voyage, nor profits by its employment. The course of such usual employment is evidence of the master's authority to contract on the owners' behalf with regard to such employment of the ship, and thereby to bind them to performance.

It is true that the master also is answerable on his own contract; for, in favour of commerce the law will not compel

6

1 Card v. Hope, 2 B. & C. 661, 674; per Dr. Lushington, The Blake, Hadden, 1 W. Rob. Ad. 73, 76.

* But quære, whether he can bind the owners by a stipulation in the charterparty for advances to the master, Gibbs r. Charleton, 26 L. J. (Ex.) 321.

3 Molloy, bk. 2, ch. 2, § 14; Bristow

. Whitmore, 28 L. J. (Ch.) 801. + Ante, c. iii. p. 92.

By Holt, Ch. Just., in Boson v.
Sandford, Carth. 63; per cur. Green v.
Briggs, 6 Hare, 395.

6 Morse v. Slue, 1 Vent. 190, 238;
Accord. per cur. Blaikie v. Stembridge,
28 L. J. (C. P.) 329, 333; per Tindal,
C. J., Thompson v. Finden, 4 C. & P.
158, 159; per Lord Mansfield, Rich v.
Coe, 2 Cowp. 636.

Foreign Law relating thereto.

the merchant to seek after the owners and sue them; it gives him the power to do so, but leaves him a two-fold remedyagainst the owner or the master. But in pursuing this remedy, care must be taken to describe the defendant according to his real character. For in an action at law,' brought against a person as master, at the trial whereof it appeared upon the proof that the defendant was not master but owner, the plaintiff failed in his suit.

This rule of the law of England agrees with the law of other commercial nations. When the Romans began to engage in commerce, a new species of action under a particular name appears to have been introduced, to ascertain and enforce this responsibility of the owners for the acts of their servants;' and by the Prætorean Edict the owners, or (to render the Latin word more nearly) the employers, of the ship are made responsible for the faults of the mariners and master, and for the contracts of the master. With regard to these contracts, while the commentators on the Edict carefully distinguish between such as the owners have authorised him to make, and such as they have not authorised him to make, it appears that, in general, they were answerable for all acts, of which his character and

1 Richwood v. Footmer, coram Kenyon, Ch. J., Sit. p. Hil. T. 1790.

2 Dig. 4. 9. Nautæ, caupones, stabularii, ut recepta restituant.

Dig. 14. 1. De Exercitoria actione. Molloy, in his treatise De Jur. Marit. et Nav. bk. 2, ch. 2, sect. 2, appears to have mistaken the character of the exercitor navis of the civil law, and to have supposed him to be the master of the ship; whereas in truth he is the employer of the ship, and consequently must be the absolute or at least the temporary owner. "Magistrum navis accipere debemus, cui totius navis cura mandata est. Magistrum autem accipimus non solum, quem exercitor præposuit, sed et eum, quem magister. Exercitorem autem eum dicimus, ad quem obventiones et reditus omnes perveniunt, sive is Dominus sit, sive a domino navem per aversionem conduxit, vel ad tempus, vel in perpetuum." Dig. 14. 1. 1, §§ 1, 5, 15.

And Roccus, not. 3, speaks to the same effect of the Magister. This author usually calls the owner dominus navis, but he often speaks of him as the person qui exercet navem. Again, in the Dig. 4. 9. 1. 2. we find the following commentary on the Prætorean Edict. The terms of the edict are, "Nautæ, caupones, stabularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo." Upon which Ulpian writes thus, "Ait Prætor Nautæ ; Nautam accipere debemus eum, qui navem exercet, quamvis nautæ appellantur omnes, qui navis navigandæ causa in nave sunt, sed de exercitore solummodo Prætor sentit. Nec enim debet, inquit Pomponius, per remigem, aut mesonautam obligari, sed per se, vel per navis magistrum; quanquam si ipse alicui e nautis committi jussit, sine dubio debeat obligari."

situation afforded the presumption of authority, even if he
contravened the orders received from them; unless the party,
with whom he contracted, were acquainted with the orders, by
which his authority was restrained.

Thus it is expressly laid down, that if the master appointed
another person to supply his place, they were nevertheless
liable on the contracts of the substitute, though appointed
against their will and positive orders.' On the other hand,
if a ship was built for the purpose of conveying passengers
only, or merchandise only, and had been employed in that
particular trade, the owners were not answerable on a contract
made by the master for the employment of the ship in a
different trade, for a different purpose. This agrees with
the terms of the rule as above laid down, because such a
contract does not relate to the usual employment of the ship.

The modern nations of Europe appear to have adopted nearly the same rules, founded on the same principle, with certain limitations, that will be noticed hereafter. Indeed it often happens that no contract can be made with the owners personally, when the ship is at a distance from their residence; and even when the ship is at home, if she is to be employed as a general ship, it rarely happens in practice that the owners interfere with the receipt of the cargo; without doubt, however, they are by our law bound by every contract made by the master relative to the usual employment of such a ship.

Maritime.

A charter-party under seal, made by the master in his own General Law name, furnishes no direct action against the owners, grounded upon the instrument itself, by the law of England: but when this contract is made by the master in a foreign port in the usual course of the ship's employment, and under circumstances which do not afford evidence of fraud; or when it is made by him at the ship's home under circumstances which afford evidence of the assent of the owners; the ship and freight, and therefore indirectly the owners also, to the amount of the

Dig. 14. 1. 1, 5.

Dig. lib. 14. 1. 1, 12.

3 Roceus, not. 11 to 18 inclusive, and not. 26, 27, 28. not. 49, ad finem,

Cleirac's comment thereon; French Ordi-
nance, liv. 2, tit. 8, art. 2, and the
Commentary of Valin thereon; Pothier,
Charte-partie, § 2, art. 3; Welwood's

and not. 65; Guidon, c. 18, art. 4, and Sea Laws, tit. 15.