Fowler v. Pickering

119 Mass. 33 | Mass. | 1875

Wells, J.

The defendant is liable in this action, if at all, by reason of some contract, express or implied, between the plaintiff. and the master of the vessel acting within his authority, as master, to bind the owners. The contract relied on in this case, if otherwise established, was within the scope of the master’s authority, and would be binding upon the owners. Grant v. Norway, 10 C. B. 665. Bliss v. Ropes, 9 Allen, 339. Story on Agency, § 116. The agreement between the defendant and the charterers, that the latter “ should pay all extra charges incurred, provided they should elect to have the ship change her port of destination from Boston to Gloucester,” would not affect the question of the defendant’s liability in the first instance to the parties dealing with the master in matters affecting the navigation of the ship.

Upon the question whether there was an implied promise to ¡remunerate the plaintiff for the service rendered by him in delivering to the master a communication relative to the voyage, by reason of which he was led to change his port of destination, the alleged custom or usage of the port was competent as evidence 5 not because the usage alone would impose or prove a liability, but as affording ground for the inference that by receiving and availing himself of the communication, and acting in accordance with its directions or request, the master accepted the service as rendered to the vessel. The alleged usage being a local one, it was rightly ruled that knowledge of its existence must be shown. But, in determining whether a promise is to be implied from the conduct of the master, it is his knowledge of the local usage relied on that is important, and not the knowledge of his principal who took no part in the transaction. The ruling at the trial was erroneous in allowing knowledge of the local usage by the owner on shore to affect the inferences to be drawn from the conduct of the master at sea. The ruling was also erroneous in directing the jury “ that if they found such a usage to be proven they must find for the plaintiff." ■ It was still a question of fact whether, in view of such a usage, known to the master, a promise to pay for delivering the letter, as a distinct service, is to be inferred from the conduct of the parties. And upon this question the express agreement made between the master and the plaintiff when the latter boarded the ship and delivered the letter, “ that if the plaintiff would undertake to try to pilot the ship into Gloucester he should receive therefor the regular fee for piloting the ship into Boston ” might have a material bearing.

Exceptions sustained.