ing in its navigation under the orders of the master. And with regard to the contracts of the master, a distinction is taken by the commentators on the edict between such as the owners have authorized him to make, and such as they have not authorized him to make; but in general it appears that they were answerable for all acts of which his character and situation afforded the presumption of authority, even if he contravened the orders received from them, unless the party with whom he contracted were acquainted with the orders by which his authority was restrained. Thus it is expressly laid down, that if the master appointed another person to supply his place, contrary to the positive orders of the owners, the owners were responsible for the conduct of the master so appointed, even against their will. On the other hand, if a ship were built for the purpose of conveying passengers only, or merchandise only, and employed in that particular trade, the owners were not answerable for a contract made by the master to employ the ship for a different purpose in a different trade. This agrees with the terms of the rule as above laid down, because such a contract does not relate to the usual employment of the ship (i).

The modern nations of Europe appear to have adopted nearly the same rules, founded on the same principle (k), with certain limitations, that will be noticed hereafter. Indeed, it often happens that no contract can be made with the owners personally, as when the ship is at a place distant from their residence. Even when the ship is at the place of their residence, and is intended to be employed as a general ship, it rarely happens in practice that the owners interfere with the receipt of the cargo; and without doubt they are by our law bound by every contract made by the master relative to the usual employment of such a ship.

A charter-party, made by the master in his own name, furnishes no direct action against the owners, grounded upon the instrument itself, by the law of England; but when this contract is made by the master in a foreign port, in the usual course of the ship's employment, and under circumstances which do not afford evidence of fraud, or when it is made by him at the ship's home, under circumstances which afford evidence of the assent of the owners, the ship and freight, and there

(i) Igitur præpositio certam legem dat contrahentibus. Quare si eum præposuit navi ad hoc solùm, ut vecturas exigat non ut locet; quòd fortè ipse locaverat, non tenebitur exercitor si magister locaverat; vel si ad locandum tantùm non ad exigendum idem erit dicendum; aut si ad hoc ut vectoribus locet, non ut mercibus navem præstet; vel contrà, modum egressus, non obligabit exercitorem. Sed et si, ut certis mercibus eam locet, præpositus est, putà legumini, cannabæ, ille marmoribus, vel alia materia locavit ; dicendum crit non teneri. Quædam enim naves onerariæ quædam (ut ipsi dicunt) εißarηyoɩ (id est vectorum ductrices) sunt. Et plerosque mandare scio

ne vectores recipiant. Et sic ut certâ regione et certo mari negotietur; ut ecce sunt naves qui Brundusium à Cassiopa vel à Dyrracchio vectores trajiciunt, ad onera inhabiles. Item quædam fluvii capaces, ad mare non sufficientes.-Dig. lib. 14, tit. 1.

(k) Roccus, Not. 11-18 inclusive and Not. 26-28. Not. 49; ad finem, and Not. 65. Guidon, ch. 18, art. 4; and Cleirac's Comment thereon. French Ordinance, liv. 2, tit. 8. Des propriétaires de navires, art. 2, and the Commentary of Valin thereon. Pothier, Charte-partie, s. 2, art. 3; Welwood's Sea-Laws, tit. 15. See as to the limitations, part 3, ch. 7, of this Treatise.

fore, indirectly, the owners also, to the amount of the value of the ship and freight, are, by the marine law, bound to the performance (1). "The ship is bound to the merchandise, and the merchandise to the ship," are the words of Cleirac (m). By the French ordinance (n) it is declared, that the ship, with its furniture and freight, and the cargo, are respectively bound to the stipulations of the charter-party; and Valin, in his commentary, says the rule is the same, whether the affreightment be made by the owner, or the naster alone, even at the place of the owner's abode, if the owner does not disavow it.

By the French ordinance (0) the master is bound to follow the advice of the owners when he freights the ship at the place of their abode. The ordinance of the Hanse Towns (art. 58) is to the same effect. Valin, in his Commentary on the French ordinance, restrains the necessity of this consent of the owners to the presence of all or the greater part of the owners, or of one appointed to act for all; and says, that if in such a case the master make a contract without their consent, the owners may annul it, and make another by their own authority; but the master himself will be answerable for the nonperformance of it. This doctrine is also adopted by his countryman Pothier (p).

It is true indeed, that this principle of the maritime law, by which the ship itself, in specie, is considered as a security to the merchant who lades goods on board of it, cannot be carried into effect in this country, because the Court of Admiralty, in which alone proceedings can be carried on against the ship, has no jurisdiction in such a case. But I apprehend the owners may be made responsible, either by a special action on the case at the common law, or by a suit in equity, for the faithful performance of the stipulations of a charterparty made by the master under the circumstances before mentioned.

3. Cases upon this Subject.

The general rule before laid down, viz., that the owners are bound by every lawful contract made by the master relative to the usual employment of the ship, is proved, as to the case of a general ship, by the following judicial authorities (g).

In the case of Boson v. Sandford and others (r), which was an action

(1) An instance of a sentence in Spain against master and ship for barratry and deviation by the master, who had let the ship by a charter-party, is mentioned in an anonymous case in 2 Ch. Ca. 238.

(m) Les Us et Coutumes de la Mer, p. 72. (n) French Ordinance, liv. 3, tit. 1: Des Chartes-parties, art. 11. And see liv. 1, tit. 14: De la Saisie des Vaisseaux, art. 16. (0) Liv. 3, tit. 1: Des Chartes-parties,

art. 2.

(p) Pothier, Charte-partie, no. 48. (9) See a very able discussion of this doctrine in Story on Agency, c. 6, s. 116. (r) Carth. 58; 3 Lev. 258; 3 Mod. 321; 1 Show. 29, 101.

Note. It would now be held, that, as the defendants had not pleaded in abatement, they could not avail themselves of the ground upon which this case was decided against the plaintiff. See part 1, ch. 3, sect. 7, p. 86.

brought against some of the part-owners of a ship employed in the coasting trade between Exeter and London, to recover the value of goods lost, which had been delivered to the master at Exeter without the knowledge of the owners, to be conveyed from thence to London; the court held that the owners were answerable for a loss under such circumstances, but decided the case against the plaintiff, because the action was brought against some only, and not against all the part-owners.

In the case of Boucher v. Lawson (s), which was an action brought against the owner to recover the value of Portugal coin delivered to the master at Lisbon, to be conveyed to London, and of which by the usage of that particular trade the master was to receive the freight to his own use, and which the master had embezzled; the court held that, if it had appeared that the ship was employed in carrying goods for hire, the owner would have been answerable for this loss: for although the exportation of coin was prohibited by the laws of Portugal, yet the importation of it into this country was allowed by our laws, and so the trade was lawful here; and it was of no consequence, whether the master was rewarded for his services by wages paid by the owner, or by receiving part of the earnings of the ship; but as it did not appear that the ship was employed in carrying goods for hire, but, for anything that appeared in the case, the ship might have been sent to Lisbon for a special purpose, and if so (as the chief justice said), no man could say that the master, by taking in goods of his own head, could make the owners liable, it was decided that the plaintiff should not recover.

The facts of the case of Ellis v. Turner and another (t), which was an action brought against the owners for the value of goods damaged by the sinking of their vessel, were as follows:-The vessel was employed in carrying goods from Hull to Stockwith and to Gainsborough, which is a little further than Stockwith, but the freight was the same for conveyance to either place. On former voyages the goods destined to Stockwith had sometimes been delivered there on the way to Gainsborough, and at other times carried forward to Gainsborough, and delivered at Stockwith on the return to Hull. The goods in question were delivered to the master on his express undertaking to deliver them at Stockwith on his way to Gainsborough. This particular undertaking was made by the master without the privity of the defendants, but he had a general authority from them to receive and convey goods for the customary freight from Hull to Stockwith and Gainsborough. The defendants had previously given public notice, with which the plaintiff's agent who shipped the goods was acquainted, that they would not be answerable for any loss or damage that might happen to any cargo, unless occasioned by the want of ordinary care and diligence in the master and crew, in which case they would pay ten per cent, upon the loss, provided such payment did not exceed the value of the vessel, but that they were

(s) Rep. temp. Hardwicke, p. 85.

(t) 8 Term Rep. iu K. B. p. 531.

willing to insure against all accidents upon receiving extra freight in proportion to the value. No agreement had been made for the payment of extra freight for the goods in question. The vessel took in other goods to be delivered at Stockwith in the present voyage, and arrived safely at that place. The master delivered some of the other goods there, and was requested by the wharfinger to deliver all that were destined for that place, but, without the knowledge of the defendants, refused to deliver the others, alleging that they were stowed below the goods destined to Gainsborough. On the way from Stockwith to Gainsborough the vessel sunk, without any want of ordinary care in the master or crew, and the goods in question were damaged. The court held, that the plaintiff should recover the amount of his loss; and Lord Kenyon said, "As the vessel reached Stock with in safety, and might have delivered the goods there, I think this action may be maintained; for though the loss happened in consequence of the misconduct of the defendants' servant, the superiors (the defendants) are answerable for it in this action. The defendants responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his conduct in those things that do not respect his duty to them-as if he were to commit an assault upon a third person in the course of his voyage."

are

It may be observed, that in each of the above cases the contract upon which the action was brought was made by the master without the particular knowledge of the owners. In the first, it was made in the course of the usual employment of the vessel, and therefore the court held the owners to be bound to the performance as a general rule, although they thought the particular suit improperly brought. In the second, the contract was not made, or at least did not appear to have been made, in the course of the usual employment of the ship, and therefore the owner was not bound by it. In the last, the contract was made in the course of the usual employment of the ship, and therefore it was considered to be a contract made in substance by the owners.

From the decision of the last of the above cases, it seems also to follow, that if the master make a particular engagement or warranty relating to the conveyance of merchandise according to the usual employment of the ship, the owners will be bound by such engagement or warranty, although made without their knowledge. And the law was so laid down by Lord Kenyon, in his directions to a jury upon the trial of an action (u) brought by a merchant against the owners of a ship on a warranty that the ship should sail with convoy from the place of rendezvous, which had not been complied with. A broker in London had been employed by the master to advertise the ship as a general ship, bound to Hamburgh; and in the printed papers the broker had inserted a clause purporting that the ship was to sail with convoy from the place of rendezvous. There was no evidence given either of the assent or dissent of the defendants (the owners) to this warranty, or of their knowledge of it; but there was contradictory evidence upon a question made at the trial, whether the master had

(u) Rinquist v. Ditchell, Guildhall Sit. p. Mich. Term, 40 Geo. 3.

forbidden the broker to insert this clause. His lordship, however, told the jury that he thought that point quite immaterial, for as the broker was authorized to advertise the ship, the owners were answerable to strangers for his acts, although he had exceeded his authority, and must seek their remedy against him: and the plaintiff succeeded in the cause.

From this rule of law, by which the owners are bound to the performance of these contracts, it follows as a corollary, that they must answer for a breach of them, although committed by the master or mariners against their will, and without their personal fault.

4. Master's Authority, when limited.

But if the owners themselves have made a special contract for the employment of their ship, the master cannot, by the general and implied authority of his character as master only, annul such a contract, and substitute another for it with the other contracting party (x).

It seems also, that the master of a trading ship, entrusted to his command for the purpose of procuring goods on freight, cannot bind the owners by an engagement to carry goods free of freight. Such an engagement certainly will not be within the scope of his authority as above described (y).

5. Ground of the Liability of Owners on the Contracts
of the Master.

The great responsibility which the laws of commercial nations cast upon the owners for the acts of the master in this and other cases has appeared to many persons, at first view, to be a great hardship; but laying aside all consideration of the opportunities of fraud and collusion, which would otherwise be afforded, it should always be remembered that the master is elected and appointed by the owners, and by their appointment of him to a place of trust and confidence, they hold him forth to the public as a person worthy of trust and confidence; and if the merchants whom he deceives could not have redress against those who appointed him, they would often have just reason to complain that they had sustained an irreparable injury through the negligence or mistake of the owners, as the master is seldom of ability to make good a loss of any considerable amount.

(x) By Lord Ellenborough, Ch. J., in Burgon v. Sharpe and others, 2 Campb.529. (y) Dewell v. Moxon and another, 1 Taunt. 391. Nor can he, by signing bills of lading for goods which have never been shipped, render his owners responsible to one who has made advances upon the faith of the bills of lading: Grant v. Norway, 10 C. B. 665. But such bills will be conclusive evidence of the shipment against the master, or other person signing the same,

unless the holder had actual notice, at the time of receiving the same, that the goods had not been in fact laden on board; provided that the master or such other person may exonerate himself, in respect of such misrepresentation, by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims. 18 & 19 Vict. c. 111, s. 3.