Ship's husband.

ployment of the ship, since the common owners of a valuable chattel must be presumed to intend its preservation and profitable employment (e). They cannot, however, bind each other as partners, unless an actual partnership exist, and then the ordinary rules relating to partnerships apply. Thus, one part owner has no authority to order insurances to be effected on behalf of the others, unless there is a partnership between them (ƒ). If, however, the others subsequently adopt the insurance, they are bound by it (g): but, in the absence of any original authority, or subsequent ratification, the broker who effects the insurance can only look to the part owner who employs him, and is liable, on the other hand, to him alone, for the amount received from the underwriters (h).

Where, as is usual, one part owner is appointed ship's husband, he becomes the agent of the others in the management of the ship, and commonly receives some remuneration from his co-owners (i). It is then his duty to see to her proper outfit and equipment, and he has power to bind the others by contracts made within the scope of his agency. He has authority to procure a charter-party and to enter into contracts for the benefit of the owners of the ship; but he has no implied authority to cancel a charter-party (). He cannot, as ship's husband, without express authority bind his co-owners for the expenses of extraordinary and unusual alterations (7), nor can he insure the shares of the other part owners, or bind them to the expenses of a

(e) See Holt on Ship., Introd. 33.
(f) Hooper v. Lusby, 4 Camp. 66.
(g) Robinson v. Gleadow, 2 Bing. N.
C. 156.

(h) Roberts v. Ogilby, 9 Price, 269;
and see Hatsall v. Griffith, 2 C. & M.
679.

(i) See Salter v. Adey, 1 Jur., N. S. 930, where it was held, that a part owner who entered on the duties of ship's husband without any express agreement for remuneration, but with a knowledge that his predecessor had received a commission, was, on an account being taken with his co-owners, entitled to the same commission as his predecessor. See also Coulthurst v. Sweet, L. R., 1 C. P. 649; Holden v. Webber, 29 Beav. 117; Miller v. Mackay, 31 Beav. 77. It has been decided that a director of a shipping company who was appointed to manage, in conjunction with a board of directors,

the affairs of the company for a stipulated remuneration, could not by appointing himself, even with the consent of the board, to the office of ship's husband, and, acting as such, entitle himself to receive sums for commission and brokerage as ship's husband. Benson v. Heathorn, 1 Y. & C. C. C. 340. In Vanner v. Frost, 39 L. J., Ch. 626, it was held that joint owners, acting as managers on behalf of the owners generally, furnishing supplies for the voyage, were entitled to sue for an account.

(k) Thomas v. Lewis, 4 Ex. D. 18. (1) Steele & Co. v. Dixon, 3 Sess. Ca., 4th Series, 1003. See Keay v. Fenwick, 1 C. P. D. 745, where under special circumstances it was held that a sale of a ship by the managing owner had been ratified by the owners, and that the managing owner was entitled to a commission on the purchase-money.

law suit (m), or, as against other part owners, make an assignment of the whole freight, to secure money advanced to him (»). He is only entitled to charge the cost price of supplies to the ship, furnished by him in the course of his business (o). In a recent case it was held that a managing owner was entitled in virtue of his general authority to pledge the credit of his co-owner by giving a bond for the release of the ship which had been arrested in the Admiralty Court for a collision at sea (p). The fact that a part owner has acted as ship's husband is sufficient evidence of his appointment, without any formal proof; and although a part owner is entitled to refuse to expend money on the repairs of the ship, and to inform the other owners that if they order repairs it will be on their own responsibility, he cannot revoke an authority to make alterations after it has been acted on, and must give distinct evidence of his dissent, in order to avoid a liability for repairs and alterations ordered by the ship's husband (2). A ship's husband has a right to repay himself money advanced by him on account of the ship out of freight coming to his hands, but this right is in the nature of a right of lien or retainer, and does not constitute a charge upon freight (»).

The statutory provisions with respect to the registered managing owner have already been noticed in connection with registry (8).

Where one part owner becomes bankrupt his share passes to Bankruptcy. the assignees under the bankruptcy without being liable specifically to the claims of the other part owners in respect of their disbursements and liabilities for the ship (t); but it is a general rule, that the trustee of a bankrupt partner can obtain no share of the partnership effects until he has satisfied all that is due from the bankrupt to the partnership. Where oil, the produce of a joint adventure, was deposited in a warehouse, separated into shares, put into casks marked with the initials of the several owners, and, by the agreement between them, no partner

(m) French v. Backhouse, 5 Bun. 2727; Bell v. Humphries, 5 Stark. 345; Campbell v. Stein, 6 Dow, 135.

(n) Guion v. Trask, 1 De G., F. & J. 373.

(0) Ritchie v. Couper, 28 Beav. 344.
(p) Barker v. Highley, 15 C. B., N. S.

(a) Chappell v. Bray, 6 H. & N. 145. (r) Beynon v. Godden, 3 Ex. Div. 263. See Bristow v. Whitmore, 31 L. J., Ch. 467.

(s) Ante, p. 21.

(t) Ex parte Harrison, 2 Rose, 76; Story, Eq. Jur. 1242.

27.

Admission of one part owner not binding on the others.

Jurisdiction

and Ad

had a right to his part until he had paid his share of the expense of procuring it, and one of them became bankrupt before his share was actually removed, it was held that the other part owners had a lien on it for the bankrupt owner's proportion of the disbursements of the ship, and were not bound to give it up to his assignees until this was paid (x). Where the managing owner received the freight warrants and paid them into a bank in his own name, drawing cheques from time to time, for various sums, out of the proceeds, part of which he applied for the use of the ship, and part for other purposes: it was held that the other part owners had no lien on this fund in the hands of the banker, nor any claim against him as their debtor (y).

Formerly questions arose as to whether part owners could give evidence for each other (≈); but as objections on the ground of interest are now removed, and the parties to a suit are competent witnesses in their own case (a), it is unnecessary to notice these decisions; it must, however, be recollected, that the admission of one part owner is still not binding on the others (b).

The Court of Chancery possesses a general power to restrain of Chancery the sailing of a ship in cases where the exercise of such a power is necessary to prevent justice being defeated, and it seems that the Admiralty Division may now exercise the same power (c).

miralty to restrain the sailing of a ship. Power of Courts of

unqualified

The Courts of Chancery and of Admiralty have, as we have already noticed (d), by statute, power to order a sale of any property Chancery and Admiralty to in a ship or share which becomes vested, by transmission on the sell interest of death of any owner, or the marriage of any female owner, in any person not qualified to be the owner of a British ship. The application must be made on behalf of the unqualified person, and the Court may deal with it, and with the proceeds of the sale as it thinks just (e). The order for sale must vest the right to transfer

owners.

(x) Holderness v. Shackells, 8 B. & C. 612; Green v. Briggs, 6 Hare, 395; see also Boyd v. Mangles, 3 Ex. 387.

(y) Ex parte Gribble, 3 Deac. & Chit. 339; and see Sims v. Bond, 5 B. & Ad. 389. As to the transmission of shares in a ship by bankruptcy, see the M. S. Act, 1854, ss. 58-60. Mortgages of ships, when duly registered, are exempt from the operation of the reputed ownership clauses in the bankrupt acts, sect. 72. See also the 32 & 33 Vict. c. 71, s. 15, and the repealed act 12 & 13 Vict. c. 106, s. 125, and ante, p. 59.

(z) Atkinson v. Foster, 1 C. B. 712. (a) The 6 & 7 Vict. c. 85; the 14 & 15 Vict. c. 99, and the 16 & 17 Vict. c. 83.

(b) Jaggers v. Binnings, 1 Stark. 64. (c) Hart v. Herwig, L. R., 8 Ch. 860; The Horlock, 2 P. D. 243; Miles v. Thomas, 9 Sim. 606; Rules of the Supreme Court, Ord. LII. r. 3.

the property in a nominee of the Court, who may then transfer like a registered owner (f). The application for a sale must be made within four weeks after the occurrence of the event on which the transmission of the property has taken place, or within such further time (not exceeding one year from the date of such occurrence) as the Court may allow. If no application for a sale is made, or granted, the share or ship transmitted under the circumstances mentioned above becomes forfeited (y). These powers may be exercised in Ireland by the Court of Chancery, in Scotland by the Court of Session, and in any British possession, by the Court possessing the principal civil jurisdiction therein (h). The Court of Chancery, and the other Courts referred to above, have also, by the same statute, power conferred upon them to prohibit the dealing with any such ship or share for any time to be mentioned in an order made by the Court. Any person interested in the ship may apply for such an order (i).

actions.

In actions by and against part owners, the ordinary rules as to Parties to the joinder of parties apply. Formerly, questions of nonjoinder and misjoinder depended upon pleading rules of great nicety (k); the whole matter is now governed by the Judicature Acts and the Rules of the Supreme Court. All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative, and all persons against whom such right is alleged, may be joined as defendants, and judgment may be given according to the real rights of the parties (7). Where there are numerous parties to an action, one or more may be authorized by the Court to sue or defend in the name of the others, and in practice it is usual for one owner to sue on behalf of himself and the other owners (m).

(ƒ) The M. S. Act, 1854, s. 63. (g) Ib. s. 64.

(h) Ib. s. 62.

(i) Ib. s. 65. These powers are extended to the Court of Admiralty by the Admiralty Court Act, 1861 (24 Vict. c. 10, s. 12), and to the Probate Court by s. 16 of the Judicature Act. Nicholas v. Dracachis, 1 P. D. 72.

(k) See as to non-joinder or misjoinder and pleas in abatement, the notes to Cabell v. Vaughan, 1 Wms. Saund. 29; Addison v. Overend, 6 T.

No plea or defence may now be pleaded in abatement (»), and no action may be defeated by the misjoinder of parties. The Court may at any time strike out or add parties, so as to enable it to completely adjudicate upon and settle all the questions involved in the action (0).

We have seen that, although there is no survivorship as to the right to the shares in a ship, the remedy in respect of any contract made with all the owners, or for any damage done during their lifetime to the ship, belongs to the survivors only (p).

(n) Rules of the Supreme Court, Order XIX. rule 13.

(0) Ib. Order XVI. rule 13.

(p) See the cases cited ante, p. 101, note (h); Buckley v. Barber, 6 Ex. 164.