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now to do only with the sale of it by the master, and with the consideration of what it is in his circumstances at the time which will invest him with that extraordinary authority. In theory as in practice, it is never to be forgotten, that he is primarily entrusted with the cargo for the sole purpose of conveying it to the place of destination; and this purpose he is bound to accomplish by every reasonable and practicable method.' Although therefore his vessel has become a total wreck, and a sale of the goods would, under the circumstances, be the most beneficial course for the proprietors, he is not thereby justified in selling the cargo, if there is opportunity for storing it. Such appears to be the law both in this country and the United States," when the moving consideration for such an act is entirely confined to the condition of the ship. But when the moving consideration is the state of the cargo itself, and a case of absolute necessity arises, the character of agent and supercargo may be forced upon him by the general policy of the law. His authority to sell at an intermediate port is clear, when the cargo is perishing, and the only alternative is a sale or a total loss of so much of the cargo as is in that condition. When the cargo, though sound, is of a perishable nature, but the repairs necessary to the ship, for which he has put in, will require time, and there is no opportunity of correspondence with the proprietor or of transhipment of the cargo, such a legal necessity may exist as will authorise him to dispose of it.' And even if it is not of a perishable nature, but is likely to be destroyed by exposure through want of accommodation for storing it, and the opportunity of transhipping is rare and uncertain, such

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2 Wilson v. Millar, 2 Stark. 1; Van Omeron v. Dowick, 2 Camp. 42; Joseph v. Knox, 3 Camp. 332; Freeman v. East Ind. Comp., 5 B & Ald. 617; Cannan v. Meaburn, 8 J. B. Moore, 127; Cammell v. Sewell, 3 H. & N. 617.

3 Bryant v. Commonwealth, Ins. Co. 13 Pick. Rep. 543; American Ins. Co. v. Ceuter, 4 Wendell, 52; Hull v.

Franklin Ins. Co. 9 Pick. 478. See Halmerson v. Cole, 1 Speers, 321; Searle v. Scovell, 4 Johns. (Ch.) 218, 222; Saltus v. Ocean Ins. Co. 12 Johns. 107; Abbott (Amer. ed.) 480; Story on Agency, no. 118.

4 Vlierboom . Chapman, 13 M. & W. 230; Roux v. Salvador, 3 Bing. N. C. 266; Blythe v. Smith, 5 M. & Gr. 405. See Tronson v. Dent, 8 Moore, P. C. 419.

5 Per Lord Stowell, The Gratitudine, Mazzola, 3 C. Rob. Ad. 240, 259.

authority as this may possibly in that case be lawfully exercised by the master.'

2

The disposal however of the cargo by the master is a matter Caution in that requires the utmost caution on his part. A sale of part Power. exercising that though damaged, any more than a sale of the whole, will not be sustained, if the damaged part can, by reasonable exertions, be restored to a condition in which it may be preserved in species to the port of discharge. His duty, as we have said, is to carry it to the port of destination, and to make every reasonable exertion to accomplish it. Every act that is not properly and strictly in furtherance of this duty, is an act for which both he and his owners may be made responsible: and the law of England, recognising no authority in any tribunal or officer set in motion by the master's suggestion, or at his instance, will scrutinise their acts quite as much as his own."

BY RESPONDEN

The power of the master to take up money on respondentia HIS AUTHORITY properly so called, that is, on the security of the cargo, and for TO HYPOTHECATE the purposes of the cargo exclusively, has been recently TIA. recognised in the Court of Admiralty. Regarding this as a function not to be exercised except by the proprietor of the goods, jurists in this country have hitherto laid it down, that such a bond could not be enforced against the goods by any tribunal known to England. But for the validity of such a contract by the master, and the enforcement of it, the same conditions required in respect of bottomry, and the instrument by which it is effected, already considered very fully in this and a previous chapter, are indispensably necessary.'

The Margaret Mitchell, 4 Jur. N. S. 1193, is a case on the sale of a ship, but the circumstances there appear to have been very similar to those alluded

to in the text.

* Tronson v. Dent, 8 Moore, P. C. 419. 2 Ewbank e. Nutting, 7 C. B. 797 : Morris v. Robinson, 3 B. & C. 196, 200; Hunter e. Prinsep, 10 East, 378; Tronson v. Dent, 8 Moore, P. C. 419.

* Per Dr. Lushington, The Margaret Mitchell, Jamieson, 4 Jur. N. S. 1193; Reid r. Darby, 10 East. 143; Hayman

Moulton, 5 Esp. 65. See some

observations of Dr. Lushington in The
Eliza Cornish, 17 Jur. 738; 1 Ecc. &
Ad. Rep. 36, S. C., respecting the sen-
tence of a court of competent jurisdic-
tion in such a case, that it would be
binding, if such a court there were.

5 The Cargo ex Sultan, 5 Jur. N. S.
1060.

62 Blkst. Com. 458; Abbott, Shipping, 4 ed. 146; 10 ed. 114; see accordingly the Spanish forms of the bond, Wesketh, 51, 60; 2 Magens, 431; Busk v. Fearon, 4 East, 319.

7 Ante, c. i. Bottomry; p. 41.

L

HIS AUTHORITY

TO SELL THE
SHIP.

Early Foreign
Law.

Caution, no less considerate than in the case of the cargo, is advisable on the part of the master before selling the ship without the express authority of the owners.' Circumstances amounting to necessity, quite as imperative in this case as in that of the cargo, are requisite to justify the sale and to sustain. the title of the purchaser. The nature of his ordinary functions is irreconcilable with the notion that such an authority as this exists under ordinary circumstances; and seems to indicate, as the proper occasion for the exercise of it, a necessity so extreme, that no way is left him of serving the interests of his owners but by an act which at once defeats his own functions and authority, and disposes of their property and profit.

It is hardly to be expected that a power of this nature should be viewed with favour in those very early times of modern history, when the master could so easily pass beyond the sphere of public opinion and the reach of public law. To prevent the opportunity of fraud, which the allowance of this power to him might afford, several of the foreign' ordinances expressly declare, that he shall not sell the ship without a special authority for that purpose from the owners; at the same time, however, authorising him, in case of necessity, to borrow money upon the credit of the ship or its furniture, with the assent of his crew.

1 Green v. Royal Exchange Assur. Co., 6 Taunt. 68; per Richardson, J., Read v. Bonham, 3 B. & B. 147.

pro

2 Consolato, c. 256-2 Pardess. 260;
Laws of Oleron, art. 1-1 Pardess. 323;
of Wisby, art. 15-1 Pardess. 470; of
the Hanse-Towns, of 1591, art. 55-2
Pardess. 525; French Ordinance, liv.
2, tit. 1-Du Capitaine, art. 19-4
Pardess. 348; Ordin. of Rotterdam,
art. 165-2 Magens, 107.
The
vision in the Consolato is, that if he
has sold without the permission of the
owners, he shall return to each his
share of the price; but if the owners
will not accept it, then he is obliged to
restore the ship, or if that is impossible,
a ship as good to them and the profit
which he might have made for them
by the ship in the meantime. If the

majority agreed to accept the price, the rest were bound by it. But if the master who sold the ship had fled, the owners might seize the ship, and enter a suit in a court of justice; and if they should prove by writing or witnesses that they were the proprietors of it, and the purchasers should be unable to prove by writing that the sale was by the authority of the owners, the ship was to be delivered up to them. Consequently, adds the code, let every one take care how he buys a ship, lest he come by a loss. But if the master sold the vessel because she was too old, or under compulsion of those who had advanced money on the ship, it seems the owners were bound by his act. Compare c. 200, towards the end.

Law.

In this country, Sir Matthew Hale, in conformity to these Early English regulations, is reported, when Chief Baron of the Exchequer, to have decided, in a case' which was argued before him, that the sale of a ship by the master did not convey the property to the buyer, although the sale was made in a foreign. country, under circumstances of inevitable danger, the ship and tackle being beaten and broken, with no hope of saving any part of them, owing to the tempest, and the barbarity of the inhabitants of the country, who carried off everything that was cast on shore. Perhaps, however, there might in this case be some circumstances, not noticed by the reporter, which led the learned Judge to doubt the absolute necessity of a sale, or to think the buyer a party to the misconduct. mentioned in the book. In a subsequent case,' wherein Lord Chancellor Cowper decreed that the East India Company should pay to the owner of a ship purchased of the master at Batavia for their use by one of their agents, the difference between the real value and the sum paid to the master, with interest thereupon at the rate allowed in India (which decree was afterwards affirmed by the House of Lords), his Lordship took notice that the sale of the ship was not necessary;-the transaction indeed was a gross fraud between the master and the agent of the company, but without their privity. And it is said by one of the earliest English reporters, that "the master of a ship may in some cases sell the ship, although it does not belong to him, as in the case of famine,' &c." This author does not cite the decision of any court as an authority for the observation; at the same time, the exception of cases of extreme necessity rather fortifies than weakens the general rule.

At present it is the well-established law of this country, and of the United States of America, that the master may exercise this authority only in exceptional cases of extreme necessity. "It is not disputed, said Lord Gifford,' whose language has been often quoted since with approval both in the admiralty and common law courts, it is not disputed that the sale was bond fide, and it is clear that it was for the benefit of all

1 Tremenhere r. Tresillian, 1 Sid. 452. * Ekins . E. I. Company, 1 P. Williams, 395; 2 Bro. Parl. Cases, 72.

3 Jenkin's Centuries, p. 165-Observation at the end of case 17.

4 Robertson v. Clarke, 1 Bing. 450.

Present Law of
England.

Conditions of such authority.

Twofold necessity for the Sale.

concerned. I agree that it is not sufficient to show that the sale was bona fide, and for the benefit of all concerned, unless it be also shown that there was urgent necessity for its being resorted to."

There always will be a difficulty in describing before the event what it is that will constitute such a necessity in law. The condition of such implied authority is by the French code' the innavigabilité of the ship, a word wearing the appearance of precision, and seeming to include only external circumstances in the state it describes; and whether the facts answer the description is to be determined, without appeal, and notwithstanding fraud practised upon him, irrevocably, by a French judge or consul on the spot.*

But as regarded by our law, that necessity which is the condition of such authority, involves in it the judgment of the master as a prudent man upon the circumstances of the case; and his decision is reserved for review at a distance, where the facts are presented by description only, and when time shall probably have tested it by the results. The position thereby assigned, both to master and purchaser, is extremely disadvantageous. With such knowledge as could be obtained at the time, the sale may have been the result of the soundest judgment; and yet, with a knowledge of subsequent events, and of the declared dissent of the owners from the transfer, a presumption arises in the most upright mind unfavourable to the master, though consonant with his good faith, but greatly to the prejudice of any inquiry into the validity of the transaction.

So far as can be collected from the cases, it appears that this necessity must consist, negatively, of inability to prosecute the voyage, and, positively, of an obligation at once to dispose of the vessel.'

The positive urgency to sell, before communicating with the owners, must arise from one or both of two circumstances; the daily outlay to preserve the wreck, or the daily deterioration

1 Hors le cas d'innavigabilité légalement constatée, le capitaine ne peut, à peine de nullité de la vente, vendre la navire sans un pouvoir spécial des propriétaires. Code de Com. art. 237.

23 Pardess. Droit Com. no. 606, see post, p. 159.

3 See the observations of Lord Stowell in The Fanny and Elmira, Edw. Ad. 117, quoted post, p. 150.

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