His authority. of his employment, he oversteps the law, he outruns his authority, and his principal will not be bound by what he does.(b) To communicate with owners, To stay by ship. His implied authority. Master's authority to institute legal proceedings. It is the imperative duty of the master during the voyage to communicate to his employers, when opportunities occur, intelligence of any events which may affect their interests. This duty exists more especially when any accident happens to the ship, because underwriters are entitled in dealing with shipowners to presume that it has been performed; and where such informamation ought to have been, but has not in fact been, given, owners might, in ignorance of a material injury to their vessel, effect insurances, which would be rendered void by reason of the injury not having been made known to the insurers.(c) If the ship be wrecked, or in peril, or arrested, or captured, it is the master's duty to stay by her as long as any rational possibility exists that any good may be done by him, nor should he desert her until all hope is gone.(d) § 85. As will be seen hereafter, his implied authority is very great, unless controlled by specific instructions to the contrary. In foreign ports, as a necessary consequence of his employment, he is authorized to bind the owners on contracts relating to the usual course of the ship's employment, (e) and for matters which are necessary for the prosecution of the voyage; (f) in certain events to hypothecate the ship, freight, or cargo; (g) in certain other events to sell the ship (h) or cargo; (i) sometimes even to throw the cargo or part of it overboard;(k) and at other times to warehouse or tranship the goods. (1) But he cannot bind the owners by any contract under seal, unless he has been authorized by the owners under seal to enter into such a contract.(m) Moreover, our law treats the master as having a special property in the ship, and as being entitled to the possession, and not as having the mere charge of her as a servant. Therefore the master may maintain in his own name an action for a violation of that possession; (n) or for freight.(0) It has also been held, that in case of collision in or near a foreign port, he has authority to institute an action in rem at such port, on behalf of both ship and cargo, against the offending ship.(p) (b) Wilson v. Rankin, 34 L. J. Q. B. 62, 67; affd. L. R. 1 Q. B. 162. (c) Abbott, 13th ed. 182; Gladstone v. (d) 2 Parsons, Sh. 4. (f) Inf. Ch. VIII. (m) Fer Bramwell, B., Priestley v. Fernie, 3 H. & C. at p. 986. (n) Pitts v. Gainee, 1 Ld. Raym. 558; Story on Agency, 116; Maude & Pollock, 4th ed. 111. (0) Shields v. Davis, 6 Taunt. 65. Infra § 314. (p) The Reinbeck, 60 L. T. 209. Personal Liabilities of the Master. made for owners master § 86. In general, when a man is, and is known to be, acting On contracts and contracting merely as the agent of another, his acts and contracts will be deemed the acts and contracts of the principal is generally only, and he will incur no personal responsibility for them to third parties;(9) but masters of ships form an exception to this rule. liable. The rule in this country and other commercial States is, that the master, as well as the owner, is personally liable upon all contracts made by him for the usual employment, repairs, and supplies of the ship; (7) unless either he takes care, by the express terms of the agreement, to confine the credit and liability to the owners only,(s) or the circumstances show that credit was really given to the owners alone; (t) in which latter cases there is no right of action against the master. The result is that the creditor has an election to sue either the master or the owner And creditor upon such contracts. But after he has obtained judgment against has election which party he one of these parties, he cannot maintain a second action against the other for the same cause.(u) An action commenced against one of them may, however, be discontinued before judgment, and fresh proceedings may be taken against the other.(x) § 87. This rule prevails only in the absence of satisfactory proof that exclusive credit was given, either to the owner or to the master, for it is of course open to the parties so to contract as to confine the responsibility to one or other of them. If, therefore, there is satisfactory proof that exclusive credit has been given to the one, the other will be completely discharged.(y) And if the party contracting has so conducted himself as to lead to the conclusion that exclusive credit has been given, either to the master or to the owner severally, he cannot assert his claim to the prejudice of a person whom he has misled into believing that he is exonerated.(*) will sue. Unless exclu sive credit given to one of them. exclusive credit. § 88. What will amount to satisfactory proof that an ex- Evidence of clusive credit was given to the owner, or to the master, must necessarily depend upon the facts of the particular case. If, however, the charge in the (1) See Smith's Merc. Law., 10th ed. 172; Story on Agency, 261. The master's liability in respect of particular contracts and under particular statutes is dealt with below in the sections relating to those matters respectively. (r) Smith's Merc. Law, ubi sup. Story, 294; Hoskins v. Slayton, Cas. Temp. Hard. 376; Rich v. Coe, Cowp. 636, 639; Blaikie v. Stembridge, 6 C. B. N. S. 894, 909; The Jenny Lind, L. R. 3 Adm. 529, 532. books of the creditor is made (8) Rich v. Coe, Cowp. 636; Hussey v. Christie, 9 East, 426, 432. (t) Abbott, Sh. 13th ed. 131. Story on (u) Priestley v. Fernie, 3 H. & C. 977. (z) Story on Agency, 296; Wyatt v. When ship is in home port. On deeds. For wrongs. General rule. Agent only liable for his own positive wrongs. Masters said to be an exception. against the ship by her name, without naming either the master or the owner, both will be liable, for both may be equally deemed representatives of the ship.(a) So, if the ship is in the home port, and repairs or supplies are furnished there at the master's request, the mere fact of the presence of the owner at the port will not exonerate the master. (b) But if the contract is made directly with the owner, and not with the master, a strong presumption will arise that credit is given exclusively to the owner, a presumption which it would require cogent proof to rebut or overcome. (c) In the case of seamen's wages, however, such a presumption is much more difficult to establish. (d) If, on the other hand, the master executes an instrument under seal in his own name, he only, and not the owners, will be liable upon it; (e) and if he execute such an instrument on behalf of his owners without having been duly authorized by deed to do so, and indeed, if without authority, expressed or implied, he purport to bind the owners exclusively by any contract, the owners will not be liable; but the master himself will be liable, not upon the instruments or contract, but for a breach of warranty of his authority to make it.(f) § 89. An agent is personally liable to third persons for his own misfeasances and positive wrongs, but not, as a general rule, for mere nonfeasances or omissions of duty in the course of his employment. His liability in the latter cases is, generally speaking, solely to his principal.(g) Again, no action will ordinarily lie against an agent for the misfeasance or negligence of those whom he has retained for the service of his principal, by his consent or authority; unless, indeed, the particular act or neglect complained of was done by his orders or directions. (h) Except in the last-mentioned case, the action for such misfeasance or negligence must be brought either against the principal or against the actual wrong-doer.(i) It has been said on very high authority (k) that masters of ships form an exception to this rule, and that, although they are the agents or servants of the shipowners, they are also, in many respects, deemed to be responsible as principals to third ley v. Rush, 7 T. R. 207, 209; Collen v. Wright, 7 E. & B. 301; 8 ib. 647.; Weeks v. Propert, L. R. 8 C. P. 427. Suart v. Haigh, 95 L. T. J. 133 (H.L.) (g) Story on Agency, 308; per Holt, C.J., Lane v. Cotton, 12 Mod. at p. 488 Perkins v. Smith, Sayer 40, 42. (h) Story on Agency, 313; Nicholson v. Mounsey, 15 East, 384, 393. (i) Story on Agency, 313; Stone v Cartwright, 6 T. R. 411. (k) Story on Agency, 314. persons, not only for their own negligences, nonfeasances and misfeasances, but also for the negligences, nonfeasances and misfeasances of the subordinate officers and others employed by and under them. This liability is founded, it is said, upon the doctrine of the maritime law, which treats the master, not merely as an agent, but also in some sort as an inferior principal and as a qualified owner of the ship, possessing for the time the executive power, and wrongs. carrier. is supported by the additional reason that it induces the master to Extent of his exercise greater watchfulness over the acts and conduct of the liability for officers and crew, inasmuch as if he were not so liable, he might often by his connivance subject the shippers of goods, as well as the owners of the ship, to great losses and injuries, without their having any adequate redress. It is said to be on these grounds that by our As common law the master of a general or carrier ship, as well as the owner, is regarded and treated as a common carrier for hire, and is held responsible as such.(1) It seems, however, that in this country, whatever may be the law in the United States, it cannot be asserted that the responsibility of the master is so great as is above stated; and there is authority for saying that by the law of England the responsibility of the master for the negligence or misconduct of his subordinates is limited to cases of collision and of contract.(m) (1) Story on Agency, 315; Mors v. Slue, 1 Vent. 238; infra § 236. (m) Per Willes, J., Blaikie v. Stembridge, 6 C. B. N. S. at p. 910. As to collisions, see Chap. XIV. infra. D To see that ship is fit for employment. To see that ship is seaworthy. The Master's Duty to see that the Ship is Seaworthy. § 90. BEFORE the commencement of the voyage, the duty of the master is identical with that of the owner.(n) It is the duty of the owners and master to take care, before setting sail, that the condition of the ship, as to hull, rigging, and appurtenances, and all provisions and supplies, is satisfactory and sufficient for the voyage in which she is engaged ;(0) and that she is, at the commencement of her voyage, in a proper condition to perform it, and fit for the employment for which she is offered to the public, or to the charterer. In other words, and whether the charter party express it or not, they should take care that she is staunch, tight, and strong, properly furnished for the voyage on which she is about to sail, with tackle, anchors, cables, sails, rigging, and all necessary stores, the master having competent nautical skill, with an adequate and competent crew, and with a pilot, whenever a pilot is required by law, and that she is not |