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.

(2) 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.

duty to see that the Ship is
Seaworthy

§§ 90-95.

§§ 96-99.-What Seaworthi

ness means in Marine In

carry proper Colours .

50

§§ 117-121.

keep.

69

54

§ 122.-Certificate of Registry

71

58

§§ 123-127. - Log Book: Official Log

72

61

§§ 107-110.-His Duty in
equipping the Ship for Sea. 62
§§ 111-114. Compulsory
Loadline and Draught of
Water

64

§§ 128-130.-Bill of Health; Passport; Duty on Change of Masters

§§ 131-134.-His Duty to obtain the necessary Clear ances, &'c..

The Master's Duty to see that the Ship is Seaworthy.

77

78

§ 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

improperly or too heavily laden; in short, that she is for such voyage seaworthy.(p) This duty is stipulated for in the usual form of charter party. It is an express term of the ordinary bill of lading.(q) It is implied in every voyage policy of marine insurance.(r)

The usual stipulation in the charter party, or memorandum of As to charcharter party, is that she is "tight, staunch, and strong, and terer. every way fitted for the voyage."(s) In the bills of lading signed Shipper. by the master and in the policies of insurance, the vessel is described as "the good ship "which she cannot be unless she is in all respects seaworthy for the voyage. And it may now be regarded as settled that "in whatever way a contract for the conveyance of merchandise be made, where there is no agreement to the contrary, the shipowner is, by the nature of the contract, impliedly and necessarily held to warrant that the ship is good, and is in a condition to perform the voyage then about to be undertaken; or, in ordinary language, is seaworthy."(t) This warranty attaches at the commencement of the voyage, and it is not satisfied by seaworthiness at the commencement of the loading if owing to some accident the ship becomes unseaworthy before she sails.() And if after the commencement of the voyage the vessel becomes unseaworthy, it is the duty of the master, if opportunity offers, to have her repaired, or at least not to proceed on the voyage with the ship in an unseaworthy state. Otherwise, if loss or damage occur to the cargo by reason of such unseaworthiness, the shipowner will, in the absence of agreement to the contrary, be liable to an action by the cargo owner. (a)

§ 91. The obligation of a shipowner on an ordinary charter party is to supply a ship that shall be reasonably fit for the carriage of a reasonable cargo of the kinds of goods specified in the charter party. Thus, in the case of a contract for the

(p) Wedderburn v. Bell, 1 Camp. 1; Lyon v. Mells, 5 East, 428, 437; Wilkie v. Geddes, 3 Dow. 57; Kopitoff v. Wilson (improper stowage), 1 Q. B. D. 377; Thin v. Richards (insufficient coals) (1892), 2 Q. B. 141; 3 Kent's Com. 288; Maclachlan, 4th ed. 426; Maude & Pollock, 4th ed. 73; 2 Parsons, Sh. 1.

(q) Maclachlan, 4th ed. 427.

(r) Arnould, § 248. As to the powers of the Board of Trade to detain ships which are unseaworthy or overloaded, see 39 & 40 Vict. c. 80; infra § 529.

(8) But a warranty in a charter party that a ship is of a particular class, relates not to the commencement of the voyage, but merely to the time of entering into the charter party: French v. Newgass, 3 C. P. D. 163.

(t) Kopitoff v. Wilson, 1 Q. B. D. 377, 380; see also Cohn v. Davidson, 2 ib. 455, 459, and Stanton v. Richardson, 2 R. 7 C. P. 42; 9 ib. 390; in H. L., W. N. 1875, 154 (where the contract was by charter party); Steel v. State Line, 3 Ap Ca. 72 Gilroy v. Price (1893), A. Č. 56; and The Glenfruin, 10 P. D. 103 (where the contract was by bill of lading); per Martin and Parke, BB., Gibson v. Small, 4 H. L. C. 353, at pp. 370, 404; and the judgments in Readhead v. Midland Ry., L. R. 2 Q. B. 412; 4 ib. 382.

(u) Cohn v. Davidson, ubi sup.

(x) Worms v. Story, 11 Ex. 430; and see Notara v. Henderson, L. R. 5 Q. B. 346; 7 ib. 225.

as regards

cargo.

Seaworthiness carriage of cattle, it is a breach of this obligation if the ship supplied is infected with disease from a previous cargo.(y) If the ship is not so fit, and cannot be made so within such a time as not to frustrate the object of the voyage, the charterer is absolved altogether, (2) and is, as it seems, entitled to sue the shipowner for not having accommodation for his goods in a shipthat was fit to carry them.(a)

Charterer's remedy.

How far seaworthiness a condition precedent to charterer's liability.

And in the case of a time charter, if the charterer cannot have the vessel in a seaworthy condition for the specified time, he is not bound to take her for a shorter time or substantially different time, and if he cannot get her for the specified time, he may throw up the charter. (b) To this extent at least the seaworthiness of the ship is a condition precedent to the charterer's liability to perform his contract. (c) It must be remembered, however, that the term "seaworthiness" has different meanings at different times, according to the different risks that have to be encountered. Thus a ship may well be seaworthy for the purpose of taking in cargo in port, though not so for the purpose of sailing on her voyage. (d) But the seaworthiness which the charterer requires is seaworthiness for the voyage, and the time at which the warranty attaches is, as we have seen, the commencement of the voyage ;(e) it would seem to follow, therefore, that a charterer would not be justified in refusing to load a ship. which was unseaworthy for the voyage at the time of loading, if the unseaworthiness was such as could be removed during the loading. In other words, he would not in such a case be entitled to insist on the ship being made seaworthy for the voyage before commencing to load her. (f) It is clear that compliance with an express warranty of seaworthiness at the port from which a ship is to sail to the port of loading, is not a condition precedent to the charterer's liability to load.(g) It is also clear that when the charterer has had the benefit of the charter party, unseaworthiness is not a condition precedent to the recovery either of freight,() or of general average, except in so far as the general average loss has been occasioned by the unseaworthiness.(i)

(y) Tattersall v. National S.S. Co., 12 Q. B. D. 297. The duty of cleansing and disinfecting ships which have been used for the carriage of cattle is now enforced by order of the Privy Council (Animals Order, 1886, Art. 100, Appx. No. 2), under the Contagious Diseases Animals Act, 1878, 41 & 42 Vict. c. 74, s. 32 (xxi., xxii.); see Ismay v. Blake, 66 L. T. 531.

(z) Stanton v. Richardson, L. R. 7 C. P. 421; 9 ib. 390; Havelock v. Geddes, 10 East, 536; Tully v. Howling, 2 Q. B. D. 182.

(a) Steel v. State Line, 3 Ap. Ca. 72, 76, 77.

(b) Tully v. Howling, ubi sup. (c) See on this subject, Carver, Carriage by Sea, ss. 194, 195.

(d) See cases cited infra §§ 123, 127. (e) Cohn v. Davidson, 2 Q. B. D. 455, 462.

(f) This conclusion would seem to follow from the judgment of Martin, B., in Tarrabochia v. Hickie, 1 H. & N. 183; cp. Hogarth v. Miller, (1891) A. C. 48.

(g) Tarrabochia v. Hickie, ubi sup. (k) Havelock v. Geddes, 10 East, 536; Tully v. Howling, 2 Q. B. D. at p. 188; Hogarth v. Miller, ubi sup.

(i) Schloss v. Heriot, 14 C. B. N. S. 59; Strang v. Scott, 14 Ap. Ca. 681, 608.