* actually given, persons taking mortgages of ships were liable to sustain a loss from the very Act intended for their security.

When the true criterion of liability had been determined by the decisions above considered, much of this mischief was removed; but the tradesman was still left without the means of ascertaining what amount of beneficial interest in the ship really belonged to the apparent owner, and was often misled by the register, on which a trustee or mortgagee appeared as absolute owner, to seek payment for his labour or his goods from one to whom, upon inquiry, it was clear that credit had not been given.

Since this enactment, it has been doubted whether a mortgagee can insure the entire value of the ship (o). Yet, in the case of Dean v. M'Ghie (p), it was assumed that the words in the 45th section of 6 Geo. 4, "except so far as may be necessary to render the ship available by sale or otherwise," preserve to the mortgagee his right to take possession of the ship, and to claim the freight earned by her, and accruing due after he has taken possession; and in the case of Kerswell v. Bishop (q), sent by the Master of the Rolls for the opinion of the Court of Exchequer, in which the mortgagee of a vessel sought to recover freight accruing due after he had taken possession, although the mortgagor had been at the expense of the outfit (r), it was certified that the plaintiff was entitled to recover. the mortgagor be only a part-owner, the claim of the mortgagee for freight will be limited to the net freight, after deducting outfit and disbursements (8). As, however, it is provided that the mortgagee shall not be deemed the owner, nor the mortgagor to have ceased to be the owner, except so far as may be necessary to make the ship available for the payment of the debt secured, where a mortgagor, who was also the owner of a ship's cargo, had become bankrupt, and the mortgagee did not take possession until her voyage was completed, it was held that he had no right to detain the goods for the freight, as both freight and goods had vested in the assignees (t).

If

8. It often happens that the charterer of a ship causes it to be laden either wholly or in part with goods belonging to other persons; in such cases, it seems that the charterer is to be considered as the owner of the ship with respect to those persons. But as different decisions have taken place, it is proper to notice them here.

In the case of Parish v. Crawford (u), an action was brought against the defendant, as owner of a ship, upon a promise alleged to have been made by him to the plaintiff to convey in his ship a quan

(0) Irving v. Richardson, 2 B. & Ad. 196. The mortgagor has an insurable interest to the extent of the full value: Alston v. Campbell, 4 B. P. C. 476.

(p) 4 Bing. 45; and see Cato v. Irving, 21 L. J. 675.

(q) 2 Crom. & J. 529, and 2 Tyrwhitt's R. 603; and see Brown v. North, 8 Excheq. 1, where it was held that the mortgagee was only entitled to the freight (less than the current freight) specified in bills of lading signed by authority of the mortgagor, though signed

after the mortgage, which was considered not
to invalidate an arrangement made pursuant
to previous authority from the mortgagor
and before the mortgage could be known.
(r) See Robinson v. McDonnell, 5 M. &
S. 228.

(s) Alexander v. Simms, 2 W. R., M. R. 124; and see Green v. Briggs, post.

(t) Brouncker v. Molyneux, 5 Jur. 773. (u) Shortly reported in 2 Stra. 1251. The account of the case here given is taken from a manuscript note much fuller than the report.

tity of moidores from London to Barbadoes, which had not been delivered there. The facts of the case were, that the defendant, the owner, had chartered the ship to one Fletcher for the voyage in question for a certain sum, and Fletcher was to have the freight of goods, but the freight of passengers was reserved to the defendant; and the defendant appointed the master, and covenanted with Fletcher for the condition of the ship and behaviour of the master. Fletcher took on board the moidores and other goods of the plaintiff and other persons, and received the freight for them. For the defendant it was objected, that although the ship was his property, yet he was not owner in such a manner as to be liable to this action, but that Fletcher was for this purpose the owner. Chief Justice Lee, however, before whom the cause was tried, was of opinion that the action might be maintained; and the plaintiff recovered damages to the value of the ship and freight (v). The sentiments delivered on this occasion by the Chief Justice were as follows: "The true consideration is, Whether by anything done by Crawford, who is confessedly the owner of the vessel, in chartering it to Fletcher, he has discharged himself as owner? Crawford considers himself as the governor of the ship, and so covenants for the government of it during the voyage, and the ship was navigated by his master. Upon what foundation, then, is an owner chargeable but upon these two considerations-first, the benefit arising from the ship, which is the equitable motive; secondly, the having the direction of the persons who navigate it? And it is upon these two things taken together that the implied contract arises. Though Crawford has not that freight which the merchants pay for their goods, yet, as he has the benefit of the freight in general, he has that equitable motive which makes him liable. With regard to Fletcher, what Crawford had done is only giving him a power to put goods on board; and it seems to me, the makers of the Act of Parliament could not have any notion of such an owner of the ship, for it speaks generally of owners of ships; but this Fletcher is not to be considered as owner of the ship in any light, but only as having a power to make use of it in this way. If this was to be considered in the nature of a mortgage, it would be delivering up the ship for such a time as the mortgage should be in force; therefore I think there is nothing appearing upon this evidence that discharges Crawford as the owner of the ship."

In the case of James against Jones and Others (a), an action was brought against the defendants, as owners of the ship Sea-flower, for the loss of a quantity of raisins on a voyage from Faro to London. One Thomas, the master of the ship, had, in his own name as master, and in the absence of the owners, chartered the ship to Reed and Parkinson, on a voyage from Falmouth to Faro, and back to London; and Reed and Parkinson engaged by the charter-party to provide a full lading from Faro, and to pay a stipulated price per ton.

(v) 12 Geo. 2, c. 15. A statute which limits the responsibility of the owners. See part the third, ch. 5.

(x) James v. Jones and Others, Guildhall

The

Sitt. after Trin. Term, 39 Geo. 3. There is a short note of this case in Espinasse's Nisi Prius Cases, vol. 3, p. 27.

goods in question were shipped at Faro, by the consent of the agent of Reed and Parkinson at that place, and Thomas, the master, signed a bill of lading, engaging to deliver them to the plaintiff, "he paying freight per charter-party." These facts appearing at the trial of the cause before Lord Kenyon, his lordship was of opinion, that Reed and Parkinson were, with respect to the plaintiff, the owners of the ship pro hac vice; that the defendants, Jones and Others, were not responsible to him, and consequently that the plaintiff could not maintain his action. Under this opinion the plaintiff and his counsel acquiesced, and did not apply to the Court for a further consideration of the subject. But the before-mentioned case of Parish against Crawford does not seem to have been adverted to on this occasion. In a more recent case, in which it appeared at the trial that a ship had been chartered by the defendants, who were the registered owners, to one De Beur, on a voyage from London to Surinam, and was afterwards put up by him as a general ship, and that the plaintiff had shipped a quantity of oats which had been improperly sold by the master, and for which the action was brought, Lord Ellenborough held the defendants were not answerable, and the plaintiff was nonsuited. The form of the bill of lading is not noticed in the report of this case, and therefore, I presume, it was not thought material at the trial (y). The gentlemen who were counsel for the plaintiff in this cause were certainly aware of the case of Parish v. Crawford, but they acquiesced in the decision.

These two cases are inconsistent with the former, but they are conformable to the principle of judgments pronounced respectively by the Courts of Queen's Bench and Common Pleas on questions of insurance, wherein it was decided, first (z), that a deviation committed by the master, with the knowledge of the absolute owner, and which, therefore, could not, according to the law of England, be an act of barratry with respect to him, was an act of barratry with respect to a third person who had hired the ship by a charter-party, and who was considered as owner for the particular voyage, with relation to the subject of that cause; secondly (a), that a wilful running ashore by the absolute owner, with the privity of the master, was an act of barratry against the merchant, under whose sole control the entire vessel for a time was placed. They are conformable also to the principle of another decision. The registered owner of a ship let the vessel at a certain rent to the person who acted as master; this person ordered stores, which were supplied for the use of the ship, and for which an action was brought against the registered owner, but it was held that he was not answerable, because "during the existence of the lease" the master was not his servant, nor was the order given on his behalf (b). And probably the case of Parish v. Crawford is not to be considered as law; for although the absolute owner might in each of these cases be ultimately answerable to the

(y) Mackenzie v. Rowe and Others, 2 Campb. 482.

(z) Vallejo v. Wheeler, Cowp. 143.

(a) Soares v. Thornton, 7 Taunt. 627. (b) Frazer v. Marsh, 2 Campb. 517; 13 East, 238.

D

charterer of the ship, yet there was no contract, either express or implied, between him and the proprietors (c).

In all such cases the real question appears to be, whether the contract of the proprietor of the goods was made with the absolute owner, or with the charterer of the vessel, and its decision will generally depend upon the further question, who was the immediate owner in possession of the vessel at the time the contract was made? In the case of an actual demise of the vessel, it is not disputed that the lessee becomes for the term to all intents and purposes the owner. Whether there be such a demise to him as constitutes him owner for the term, is to be collected from the language of the charter-party and the nature of the ship's employment. The contract between the shipowner and the merchant may be locatio navis, a demise of the ship itself with its furniture and apparel; it may be locatio navis et operarum magistri, a demise of the ship (d) "in a state fit for the purposes of mercantile adventure;" or it may be "locatio operis vehendarum mercium," a contract for the carriage of the merchant's goods in the owner's ship, and by his servants.

Respecting the first of these modes of demise no difficulty is likely to arise; but on the question whether the charter-party be a demise of the second kind, or a mere contract for the carriage of the merchant's goods in the owner's ship, and by his servants, the solution of most important points in the maritime law of England and America, and among them the responsibility of the general owner to third parties, depends (e).

*

*(c) Are these cases inconsistent with each other? The charter-parties in Mackenzie v. Rowe, and James v. Jones, are not set out in the reports of those cases. They, probably, like the charter-party in Frazer v. Marsh, were such as to transfer the possession of the ship from the absolute owners to the charterers, so as to make the master and the crew the servants of the latter, and the contracts of the master the contracts of the charterers. This was plainly not the effect of the charter-party in Parish v. Crawford, for there the owner appointed the master, covenanted for his good behaviour, and reserved to himself the freight of passengers. From the report of that case, in 2 Strange, 1251, it also appears that bills of lading for the moidores were signed by the master. Those bills, it is submitted, were evidence of an express contract between the shippers of the goods and Crawford, by whom the master was appointed and employed. If that be so, Parish v. Crawford does not appear to be inconsistent with principle or with other decided cases. It could hardly have been determined otherwise, consistently with the doctrine of the civil law,Omnia facta magistri debet præstare qui eum præposuit- alioquin contrahentes deciperentur-upon which passage of the Digest (lib. 14), Valin cites with approval this commentary of Peckius:

Quid enim interest per se exercitor, an per

eum quem ipse substituit contractum ineat?— qui enim aliquem præponit is clarû et apertá voce dicere videtur, hunc ego præposui qui volet cum eo contrahat."-Comm. sur l'Ördonnance, liv. 2, tit. 8, art. 2.

Exercitor autem eum dicimus ad quem obventiones et reditus omnes perveniunt, sive is dominus navis sit sive a domino navem per aversionem conduxit vel ad at tempus, vel in perpetuum.-Dig. lib. 14, de Exercitoria Actione.

According to this definition, Fletcher, in the case of Parish v. Crawford, was neither dominus nor exercitor navis. He might, to be sure, employ the master as his agent, to make contracts for his benefit with the shippers of goods, and be liable upon such contracts; but the question was, whether parties dealing with the master of the ship as master, were not entitled to seek compensation for the loss of their goods from the person to whose servant, acting as such, they had been entrusted for safe carriage? See the case of Mitchell v. Scaife, post, and the observations of Lord Tenterden in the three first editions of his Treatise.*

(d) See the observations of Tindal, C. J., in the case of Newberry v. Colvin, 7 Bing. 190, post, p. 37; Pothier, Traité de Charte Partie, p. 1, s. 5.

(e) See post, Lien for Freight, Stoppage in Transitu.

In a question of construction it is impossible to lay down a rule of universal application; but it seems to result from the cases decided upon this subject, that when by the terms of the charter-party the master and mariners are to continue subject to the orders of the shipowner, he retaining through them the possession, management, and control of the vessel, it is to be considered as a contract to carry the freighter's goods; but where the merchant engages to pay a stipulated price to the shipowner for the use of his ship for the voyage, by the month or year-takes it and them into his service-receiving the freight actually earned by it to his own use, the master and mariners becoming subject to his orders, and the general management and control of them and of the vessel being given up to him, it is a demise of the vessel with her crew for the voyage, or the term specified; the charterer becomes owner pro hâc vice (f), entitled to the rights, and subject to the responsibilities which attach to that character.

Thus in the case of M'Kenzie v. Rowe, above cited, the proof of the charter to De Beur, and of the vessel's being put up by him as a general ship, showed that she was under his control and management, and that the shipper's contract was with him.

So in the case of the Trinity House v. Clark (g), which was an action of assumpsit for tolls claimed to be due from the defendant, as owner of the ship Britannia, in respect of certain lights on the coast, and of the buoys and beacons coming up the Thames; the defendant having chartered his ship to the commissioners of the transport service, on behalf of the Crown, the question was, Whether he was liable to pay any portion of these tolls during the time she was in

(f) The question who is to be considered as owner for the voyage in cases of charterparty, so as to create a liability for repairs or breaches of duty, has been several times litigated in the American Courts. In an action on a policy of insurance, brought by the plaintiff to recover for a loss in the voyage, one of the losses being assigned to be barratry by the master, the question arose, Who was owner for the voyage? The Court, in delivering the judgment, said, “A person may be owner for the voyage who by a contract with the general owner hires the ship for the voyage, and has the exclusive possession, command, and navigation of the ship. Such is understood to have been the case in Vallejo v. Wheeler, Cowp. R. 143. But where the general owner retains the possession, command, and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter-party is considered a mere affreightment, sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership. Such was the case of Hoole v. Groverman (1 Cranch, 214), in this Court. In the first case, the general freighter is responsible for the conduct of the master and mariners during the voyage; in the latter case, the responsibility rests on the general

owner. On examining the charter-party in the present case, there can be no doubt, from the terms and stipulation, that it falls within the latter class of cases. The master, who was the general owner, retained the exclusive possession, command, and navigation of the vessel, and she was navigated at his expense during the voyage."

The same doctrine was stated by the Supreme Court of New York in McIntyre v. Browne (1 John, R. 229). A. chartered a vessel to B. & C. for a particular voyage, retaining half the cabin, and certain privileges for the master and mate, and covenanted to hire and pay the master and men, and furnish provisions for the voyage, &c. The Court said the true distinction was, "that where by the terms of the charter the shipowner appoints the master and mariners, and retains the management and control of the vessel, the charter is rather to be considered as a covenant to carry goods; but where the whole management is given over to the freighter, it is more properly a hiring of the vessel for the voyage, and in such case the hirer would be deemed owner pro hâc vice."– Mr. Justice Story's note to the American edition, p. 23. See also Kent, Comm. Edinb. edit. p. 134.

(g) 4 M. & S. 288.