MASTER'S AUTHORITY AS TO EMPLOYMENT OF THE SHIP. Chap. 2. 83 CHAPTER II. OF THE AUTHORITY OF THE MASTER WITH REGARD TO THE EMPLOYMENT OF THE SHIP; AND HEREIN, SECT. 1. Of the different kinds of Contract under which Merchant Ships are employed, 2. Owners of Ships are bound by Contracts of the Master, relative to the usual 3. Cases upon this Subject, p. 86. 4. Master's authority, when limited, p. 89. 5. Ground of the Liability of Owners on the Contracts of the Master, p. 89. 1. Of the different kinds of Contract under which Merchant Ships are employed (e). [A TRADING ship is employed by virtue of two distinct species of contract: First. The contract by which an entire ship, or at least the principal part thereof, is let for a determined voyage to one or more places. This is usually done by a written instrument, signed and sealed, and called a charter-party. Secondly. The contract by which the master or owners of a ship destined on a particular voyage engage separately, with a number of persons unconnected with each other, to convey their respective goods to the place of the ship's destination. A ship employed in this manner is usually called a general ship. The nature of each of these contracts will form the subject of particular discussion hereafter (f). In the present chapter it is proposed to consider only the power of the master to bind the owner of the ship by these engagements (g). 2. Owners of Ships are bound by Contracts of the Master, relative to the usual course of the Ship's Employment (h). The owners rarely navigate a trading ship by themselves; the conduct and management of it are almost always entrusted to the master, whether he has or has not a partial property in it. In the] (e) As to commissioners of customs making regulations respecting the employment of vessels and boats not exceeding 100 tons, see 39 & 40 Vict. c. 36, s. 169, et seq. (f) Part IV. ch. 1, 2, 3, 4. (9) Now perhaps more frequently by a written instrument not under seal, called a (h) Where transfer of ship during voyage, Part III. [latter case he is the confidential servant or agent of the owners at large; in the former, of his copartners. In either case, by the law of England, and in conformity to the rules and maxims of that law in analogous cases, the owners are bound to the performance of every lawful contract made by him relative to the usual employment of the ship. They are bound to this performance by reason of their employment of the ship and of the profit derived by them from that employment (a). One part-owner, who dissents from a particular voyage in the manner mentioned in the preceding chapter (b), is not bound, because he does not employ the ship on that voyage, nor derive any profit from it (c). The course of the usual employment of the ship is evidence of authority given by the owners to the master to make for them and on their behalf a contract relating to such employment, and consequently a contract so made by him is esteemed in law to have been made by them.] The master also is answerable for his own contract (d). [This rule of the law of England agrees with the law of other commercial nations. When the Romans began to engage in commerce (e), a new species of action, under a particular name, appears to have been introduced, to ascertain and enforce this responsibility of the owners for the acts of their servants; and by the Prætorian Edict, the owners, or (to render the Latin word more nearly) the employers, of the ship are made responsible for the faults of the mariners and master, and for the contracts also of the master; but not for the contracts of the mariners, because the mariners are not appointed for the purpose of conducting the business of the ship, but only of labouring 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 autho-] (a) See Molloy, b. 2, ch. 2, s. 14. (c) By HOLT, Ch. J., in Boson v. Sand- (d) Morse v. Slue or Sluce, 1 Vent. 190, 238. STORY, On Agency. Priestley v. Fernie, 5 H. & C. 977. Sec post, Part IV, ch. 4. (e) [Dig. 4, 9. Nauta, caupones stabularii, ut recepta restituant. Dig. 14, 1: De Exercitorià Actione. Molloy, in his Treatise de Jur. Marit. et Naval. book 2, ch. 2, sect. 2, appears to have mistaken the character of the Exercitor navis of the civil law, and to have supposed him to be the master of the ship; whereas, in truth, he is the employer of the ship, and consequently must be the absolute, or at least the temporary owner: "Magistrum navis accipere debemus, cui totius navis cura mandata est. Magistrum autem accipimus non solum, quem exercitor præposuit, sed et eum, quem magister. Exer citorem autem eum dicimus, ad quem obventiones et reditus omnes perveniunt, sive is Dominus sit, sive a domino narem per aversionem conduxit vel ad tempus, vel in perpetuum." Dig. 14, 1, 1. And Roccus, Not. 3, speaks to the same effect of the Magister. This author usually calls the owner Dominus navis, but he often speaks of him as the person qui exercet navem. Again, in the Dig. 4, 9, 1, 2, we find the following commentary on the Prætorian Edict. The terms of the edict are; "Nautæ, caupones stabularii, quod cujusque salvum fore receperint, nisi restituant, in eos judicium dabo." Upon which Ulpian writes thus: "Ait prætor nautæ; nautam accipere debemus, eum qui navem exercet, quamvis nautæ appellantur omnes, qui navis navi grandæ causa in nave sint, sed de exercitore solummodo prætor sentit, nec enim debet per remigem, aut mesonautam obligari, sed per se, vel per navis magistrum."] [rized 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 (f). The modern nations of Europe appear to have adopted nearly the same rules, founded on the same principle (g), 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. When a charter-party 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 therefore, indirectly, the owners also, to the amount of the value of the ship and freight, are, by the marine law, bound to the performance (h). "The ship is] Chap. 2. (f) Igitur præpositio certam legem dat contrahentibus. Quare si eum præposuit nari 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 rectoribus 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, cannaba, ille marmoribus, vel alia materia locavit; dicendum crit non teneri. Quædam enim naves onerariæ quædam (ut ipsi dicunt) επιβατηγοι (id est vectorum ductrices) sunt. Et plerosque mandare scio ne rectores recipiant. Et sic ut certâ regione et certo mari negotietur; ut ecce (g) [Roccus, Not. 11-18 inclusive and Part III. [bound to the merchandise, and the merchandise to the ship," are the words of Cleirac (a). By the French ordinance (b) 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 master alone, even at the place of the owner's abode, if the owner does not disavow it. By the French ordinance (c) 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 (d). 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 (e). In the case of Boson v. Sandford (f), which was an action 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. In the case of Boucher v. Lawson (g), 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 usuage 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] deviation by the master, who had let the (a) Les Us et Coutumes de la Mer, p. 72. (c) Liv. 3, tit. 1: Des Chartes-parties, art. 2. (d) Pothier, Charte-partie, no. 48. (e) See Story on Agency, c. 6, s. 116. (f) Carth. 58; 3 Lev. 258; 3 Mod. 321; 1 Show. 29, 101. (g) Rep. temp. Hardwicke, p. 85. [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 (h), 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 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 Stockwith 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] (h) 8 Term Rep. in K. B. p. 531. Chap. 2. |