Ward v. Green

6 Cow. 173 | N.Y. Sup. Ct. | 1826

Curia, per

Savage, Ch. Justice.

Abbott on Shipping, in treating of the liability of the owners, on the contracts of the master, states that the owners are bound to the performance of every lawful contract made by the master, relative to the usual employment of the ship. The master is the confidential agent of the owners at large, and is entrusted with the conduct and management of the ship. It often happens that no contract can be made with the owners personally, as where the ship is in a place distinct from their residence. But even when the ship is at the place of their residence, arid is intended to be employed as a general ship, it rarely happens that the owners interfere with the receipt of the cargo ; and without doubt they are legally bound to perform every contract made by the master relative to tbe usual employment of such a ship. [Abbott, part 2, ch. 2, s. 2, 3, 4.)

A general ship is defined to be one in which the master or owners engage separately with a number of persons, unconnected with each other, to convey their respective goods to the place of the ship’s destination.

There can be no doubt that, in this case, the ship was a general one ; and the owners are liable for the performance of the master’s contract, unless they are discharged by reason of one of the owners being present at New-Orleans, and acting as supercargo.

The case of Boucher v. Lawson, (Rep. Temp. Hardw. 83, 183, Abb. on Sh. 119, S. C.,) wras an action 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 he 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 the loss. But as that did not appear, and possibly the ship might have been sent for a special purpose, the master could not charge the owners, by taking in goods contrary to his duty.

In the case of King v. Lenox, (19 John, 236,) the general liability of the owner is asserted as I have before stated it; but in that case, the owner was held not responsible, because the ship was freighted wholly by him. The master, therefore, had no authority to receive goods on freight. The contract was, consequently, deemed to be made with the master in his individual capacity, and not as agent of tlye owners. In the case of Walter v. Brewer, (11 Mass. Rep. 99,) the owner went in the ship, intending; to freight her himself. The ship was not advertised for freight, nor did she bring any from Montevideo ; but the cargo belonged to the owner, except the bales of skins which the master received from the plaintiff, and stowed away secretly. The judge instructed the jury that the owners were generally liable on the contracts of the masters abroad on the voyage ; but as the owner had gone in the ship to procure a cargo ; as the ship was not put up for freight; and as the defendant ivas not consulted, but the goods were taken on board without his knowledge, he was not liable. But had the owner known of the shipment of the goods before he left Montevideo, he would have been accountable.

On a motion for a new trial, the court concurred generally in the doctrine pronounced at the trial; that the owner is not liable for goods clandestinely taken on board by the master, the former being present, and having the management of the voyage himself, leaving nothing to the master but the care of sailing and directing the ship, especially when the ship is not a freighting ship. But even under such circumstances, the court declared they would hold the owner liable, if he knew the goods were received on board upon freight. And the judge delivering the opinion of the court, concurs with the doctrine of King v. Lenox, that in such a case it is reasonable that the owner of goods who avails himself of the master’s privilege, should be holden to trust to his individual responsibility.

In neither of these cases was the ship a general one. And Abbott thinks it makes no difference that the goods are taken as part of the master’s privilege, because it is immaterial whether he is paid by a privilege or by wages.

The case under consideration is not like either of those cited. Here the ship was a general one. She was freighted by sundry persons. The cargo did not belong to the owner. The master, therefore, had authority to receive goods on freight, unless he was prohibited by the owner’s presence,

I can see no error in the opinion of the judge who delivered the charge in the court below, He stated that the master of a vessel, when abroad, is the agent of the owners, and has power to make contracts in relation to freight, which are binding upon the owners. That when an owner is on board, and exclusively attending to the shipment of the cargo, he is not bound by the master’s contract. But to relieve himself from liability, he must shew the fact that he was exclusively attending to the shipment of the cargo. This doctrine seems to me to be supported by the authorities referred to, and is reasonable in itself. If the jury did not correctly apply the law to the facts of the case, the remedy is not by bill of exceptions and writ of error.

I am of opinion that the judgment of the court below should be affirmed.

Judgment affirmed.