Hypothecation or sale of ship or cargo. victual the ship, the proof of the necessity for so doing, and of the proper application of the money, rests with the person who gives such credit or lends the money (s). If there was no occasion for it, the master alone is debtor, and not the owners (t). The master has no power to bind his owners in respect of matters connected with the voyage but not necessary for its prosecution. Therefore, where disabled sailors had been landed, and there was no probability that they would be able to return to the ship and resume their duties, it was held that the master could not pledge the owner's credit for their board and lodging (u). The authority of the master to sell or pledge the ship or cargo in cases of necessity will be noticed in Chapter VIII. on HYPOTHECATION. It is right, however, to mention here, that the master has no authority to hypothecate the ship for money advanced for repairs, unless the payment is made to depend on her arrival; nor can he pledge the ship herself and also the personal credit of the owners. An instrument providing that if bills drawn by a master on his owners were not accepted or paid the lender might take possession of the ship, was held to be void (v). Although the immediate control of the ship as to her employment is vested in the master, he has no power to alter the voyage (x), or to vary the rate of freight at which goods are to be shipped (y), in contravention of the agreement made between his owner and the freighter, or to make freight payable beforehand, or to any person other than the owner (2); nor can he charge his owners by signing bills of lading for more cargo than is shipped (a). (s) Mackintosh v. Mitcheson, 4 Exch. 175; Rocher v. Busher, 1 Stark. 27; Palmer v. Gooch, 2 ib. 428; see also Thacker v. Moates, 2 M. & Rob. 79. (t) Thacker v. Moates, ubi sup. See (u) Organ v. Brodie, 10 Exch. 449. money borrowed. Stainbank v. Shephard, 13 C. B. 418. The owner may, if he think fit, hypothecate the ship, and make himself personally liable. See the judgment in Willis v. Palmer, 7 C. B., N. S. 360. (x) Burgon v. Sharpe, 2 Camp. 52. (y) Dewell v. Moxon, 1 Taunt. 391. (z) The Sir Henry Webb, 13 Jur. 639; Walsh v. Provan, 8 Exch. 843. (a) Hubbersty v. Ward, 8 Exch. 330. The statement in the bills of lading is, however, ordinarily, conclusive against himself. 18 & 19 Vict. c. 111, s. 3. owners for his torts. The owners are not only liable upon contracts entered into by Liability of the master, but may be made answerable in tort for acts done by him in the ordinary course of his duty. Where he is appointed by the owners, this liability has been held to attach to them although the ship has been chartered to Government or to private individuals, and is, as far as her disposition is concerned, under the direction of an agent appointed by the charterers (b). The owners are not, however, responsible for damage wilfully done by a master, where the act is not within the scope of his ordinary duty or sanctioned by them (c). Where a master, acting bonâ fide and meaning to execute the duties of his employment, sold a portion of the cargo under circumstances not justifying the step, this was held to be a joint conversion by him and his owner, for which both were liable to the merchant in an action of trover (d). TO BIND THE The master, whilst afloat, or in a foreign port where there is HIS POWER no agent of the shipper, acts in a double capacity; he is the agent of the owner as to the ship and freight, and of the merchant as to the goods (e); and he should in these cases do that which, in the exercise of a sound discretion, is the best for both parties (ƒ). One of the most critical points he has to decide is, whether, in the event of the ship receiving such an injury during the voyage as to prevent her from completing it under any circumstances, the cargo should or should not be transhipped, so that it may be conveyed to its port of destination (g). He cannot, under these circumstances, bind the merchant by a contract for the forwarding of the goods in a substituted ship, and at another rate of freight, without communicating with the merchant's agent at the intermediate port into which the ship has put (h). (b) Fletcher v. Braddick, 2 N. R. 182; Fenton v. Dublin Steam Packet Company, 8 A. & E. 835. Where a collision arose from obedience to the orders of a harbour master, whose directions the master and crew were bound to obey, it was held, in the Admiralty Court, that the ship was not liable. The Bilbao, 1 Lush. A. R. 149. (c) The Druid, 1 W. Rob. 391; The Ida, 1 Lush. A. R. 6. (d) Ewbank v. Nutting, 7 C. B. 797; Schuster v. M'Kellar, 7 E. & B. 704. (e) Per Lord Denman, in Shipton v. (f) Per Lord Mansfield, Milles v.. (g) See post, Chap. VI., CONTRACT (h) See Gibbs v. Grey, 2 H. & N. 22. AGENCY IN CASES OF IN- JETTISON. RANSOM. Another important agency which the master may be called upon to exercise arises in cases of constructive total loss. In these cases it often becomes a question whose agent he is in the performance of any particular acts which he may do for the benefit of all concerned. The true rule appears to be, that, so long as he acts bonâ fide and within the limits of his authority, he is the agent (although involuntarily created) of that person, whether the assured, or the underwriter, in whom the interest and risk may be vested at the time, although that fact may not be determined until afterwards (i). Another instance in which the master must exercise the discretion of an authorized agent over the cargo arises in the case of jettison, which is the throwing overboard of goods from necessity, to lighten the vessel in a storm, or to prevent capture. Whether such a necessity exists as to justify the sacrifice depends upon the circumstances of each case; but if it does, the authority of the master is clear. He may, in the reasonable exercise of his discretion, select what articles and determine what quantity shall be sacrificed; indeed, in cases of extreme necessity, when the lives of the crew cannot otherwise be saved, he may throw the whole cargo overboard (k). There exists also, by the general maritime law, a right on the part of the master, when the cargo is captured by an enemy, or by pirates, to ransom it on behalf of the owners to the extent of its value (1). In the former of these cases, however, the statute law of this country has, from obvious motives of policy, forbidden the master to ransom (m), but in the latter case the right still remains. (i) Post, Chap. VII., INSURANCE. In Benson v. Chapman, 2 H. of L. Cases 720, it is said, that the duty of the master, in case of damage to the ship, is to do all that can be done towards bringing the adventure to a successful termination, to repair the ship, if there be a reasonable prospect of doing so at an expense not ruinous, and to bring home the cargo, and earn the freight if possible. (k) Per Lord Stowell, in The Gratitudine, 3 Rob. 258; and post, Chap. VI., CONTRACT OF AFFREIGHTMENT. (1) Per Lord Stowell, in The Gratitudine, ubi sup. (m) Post, Chap. VI., CONTRACT OF AFFREIGHTMENT. CERTIFI CATED ENGI- IN an earlier Chapter some of the rights and duties of the crew have been incidentally mentioned, it is now proposed to consider the subject more fully. Before the duties and rights of the ordinary crew are mentioned, it is necessary to call attention to some recent important statutory regulations with reference to the carrying of certificated engineers on board of steam ships. By sect. 5 of the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Viet. c. 63), it is enacted, that every steam ship STEAM SHIPS. required by the Merchant Shipping Act, 1854, to have on board a master possessing a certificate from the Board of Trade (a), must also carry now an engineer or engineers possessing a certificate from the Board as follows: (1.) Engineers certificates are to be of two grades, viz., "first class engineers certificates," and "second class engineers certificates:" (2.) Every foreign going steam ship of one hundred nominal (3.) Every foreign going steam ship of less than one hundred (a) See ante, p. 85. |