The master has no power, as agent of the owner, to settle, or deal with any claims or questions that do not accrue or arise while he is master.1 If the contracts which he makes are in his own name, then, it is said, that the owner cannot be made liable for them, on the contracts.2 But most maritime contracts on which the owner should be liable, give to the contracting party a lien on the ship, and through this, the owner may be indirectly reached. And it may well be doubted whether, in this country, the owner himself might not, generally, be made directly responsible. The master is, in almost all cases, where he makes a contract for his ship, himself responsible; as on all charter-parties or bills of lading signed by him. And if goods on board are injured by the unskilfulness or wrong doing of the master, or of the crew without the fault of the master, or if they are stolen, or lost so as to make the owner responsible, the master, generally, would be responsible also; for the maritime law considers both the owner and master as carriers of the cargo.7

Although the master may, in a foreign port, make a charterparty which shall bind the owners, it is said that he cannot make either that or any other contract under seal, so as to bind them, without express authority.8

255; The Nelson, 1 Hagg. Adm. 169. See contra, Malpica v. McKown, 1 La. 248; Arayo v. Currel, 1 La. 528.

1 Kelley v. Merrill, 14 Maine, 228.

2 Garnhan v. Bennet, 2 Stra. 816; Thorn v. Hicks, 7.Cow. 697; Hussey v. Allen, 6 Mass. 163; James v. Bixby, 11 Mass. 34, 37; Nickerson v. Sch. Monsoon, 5 Law Reporter, 416; Wainwright v. Crawford, 3 Yeates, 131.

See Phillips v. Tapper, 2 Barr, 323.

4 Rich v. Coe, 2 Cowp. 636; Marquand v. Webb, 16 Johns. 89; James v. Bixby, 11 Mass. 34; Stocker v. Corlett, 1 Const. R. 81. In Sydnor v. Hurd, 8 Texas, 98, the master was held liable on the following instrument: "Due Sydnor & Bone, or order, by Sch. Cornelius and owners for supplies and materials received, the sum of two hundred and six dollars. William Hurd."

5 Watkinson v. Laughton, 8 Johns. 213; The Sch. Leonidas, Olcott, Adm. 12, 15. But in an action of assumpsit for the breach of a contract of affreightment the owner and master should not be joined. Patton v. Magrath, Rice, 162.

• Morse v. Slue, 1 Vent. 190, 238; Barclay v. Cuculla y Gana, 3 Doug. 389; Watkinson v. Laughton, 8 Johns. 213.

7 Elliott v. Rossell, 10 Johns. 1; Oakey v. Russell, 18 Mart. La. 58.

8 See ante, p. 231, n. 3.

SECTION II.

OF THE MASTER'S POWER FROM NECESSITY.

As the master's power often arises from necessity, and is measured by it, it is important to ascertain what this necessity must be in each particular instance. For this necessity is very different, in different cases. Courts and text-writers use the same words in all these cases, saying in all alike that the master has the power, from necessity; but they must mean very different things. Thus, we have already seen what the necessity is which alone gives the master power to sell the ship without consulting the owner. And it is also true that he may borrow money and hypothecate the ship for it by a bottomry bond, if this be necessary. And he may also bind the owner to pay for the repairs which he makes, if those repairs were necessary.3 But

1 See ante, p. 59-65.

2 See post, § 4, p. 406.

3 Stewart v. Hall, 2 Dow, 29; The Aurora, 1 Wheat. 96, per Story, J.; The Ship Fortitude, 3 Sumner, 228, 236; Burquin v. Flinn, 1 McCord, 316; Milward v. Hallett, 2 Caines, 77; Rocher v. Busher, 1 Stark. 27. See also, James v. Bixby, 11 Mass. 34. The question as to the degree of necessity necessary to confer the power on the master of binding the vessel and its owners for repairs and supplies furnished in a foreign port, was discussed at length in a recent case before the Supreme Court of the United States. Thomas v. Osborn, 19 How. 22, 31. Mr. Justice Curtis, in delivering the opinion of the court, said: "To constitute a case of apparent necessity, not only must the repairs and supplies be needful, but it must be apparently necessary for the master to have a credit, to procure them. If the master has funds of his own, which he ought to apply to purchase the supplies which he is bound by the contract of hiring to furnish himself, and if he has funds of the owners, which he ought to apply to pay for the repairs, then no case of actual necessity to have a credit exists. And if the lender knows these facts, or has the means, by the use of due diligence, to ascertain them, then no case of apparent necessity exists to have a credit; and the act of the master in procuring a credit does not bind the interest of the general owners in the vessel." It was therefore held in this case that, the master having received freight money, and having invested it with the assistance of the libellants in a series of adventures, the vessel was not liable for money advanced by the libellants to enable the master to repair and supply the vessel, and purchase a cargo to be transported and sold in the course of such private adventures, as the freight-money was sufficient to pay for the repairs and supplies, and might have been so used, if it had not been wrongfully employed by the master with the assistance of the libellants. Some of the remarks of 33

VOL. I.

he has no power to draw upon the owners by a bill of exchange for supplies furnished in a foreign port, and render them liable as acceptors.1

To justify a sale, the necessity must be, as we have seen, of the most positive and stringent character. To make the owner responsible for repairs, however, it could not be necessary to show that the ship would have sunk or gone to ruin without them; for if they are, on the whole, reasonable and proper, that is enough.2 Again, the necessity which authorizes a borrowing on bottomry, is not the same as either of these; it need not to be so stringent and extreme as the first; but it must be far greater than the second; it lies between them.3 And we might go on and speak of other necessities and other powers springing from them, and endeavor to classify them. But it would accomplish no practical good; for after all, the only, and the reasonable rule must be, that the owner authorizes

the learned judge above cited, apply only to the case which was then before the court, where the master was also the charterer, though the decision would unquestionably have been the same had he been merely the master.

1 Bowen v. Stoddard, 10 Met. 375; May v. Kelly, 27 Ala. 497.

2 Mr. Justice Story in the case of The Ship Fortitude, 3 Sumner, 228, 237, said: "In relation to what are necessary repairs in the sense of the law, for which the master may lawfully bind the owner of the ship, I have not been able, after a pretty thorough search into the authorities and text writers, ancient and modern, to find it anywhere laid down in direct or peremptory terms, that they are such repairs, and such repairs only, as are absolutely indispensable for the safety of the ship, or the voyage, or that there must be an extreme necessity, an invincible distress, or a positive urgent incapacity, to justify the master in making the repairs. The general formulary of expression found to be laid down is, simply, that the repairs are to be necessary, without in any manner pointing out what repairs are, in the sense of the law, deemed necessary, or what constitutes the true definition of necessity. But a thorough examination of the common text writers, ancient as well as modern, will, as I think, satisfactorily show, that they have all understood the language in a very mitigated sense; and that necessary repairs mean such as are reasonably fit and proper for the ship under the circumstances, and not merely such as are absolutely indispensable for the safety of the ship or the accomplishment of the voyage." See also, Webster v. Seekamp, 4 B. & Ald. 352; Rocher v. Busher, 1 Stark. 27; United Ins. Co. v. Scott, 1 Johns. 106; Milward v. Hallett, 2 Caines, 77; Pratt v. Reed, 19 How. 359.

3 See post, § 4, C. In Pratt v. Reed, 19 How. 359, 361, it was said that the only difference between a case of necessity which would authorize an implied hypothecation of the vessel for supplies or repairs, and that necessity which would justify the giving of a bond, was, that in the latter case, the additional fact must appear, that the master could not procure the money, without giving the extraordinary interest incident to that species of security.

the master to do every thing within the general scope of a master's employment, which a rational man might believe that a rational owner would certainly do for himself if he were present at that time and place.1

So a master may, if necessary, appoint another in his place; although generally, an agent cannot delegate his power or duty without especial authority; and the master so appointed by a master, may bind the owner in like manner as the original master might have done.2 So a master duly appointed by a charterer, binds not only his immediate principal, the charterer, but also the ship. But if appointed by the charterer, he would not, we think, bind the owner personally, without something from the owner, indicating, by word or act, that the master so appointed, was also clothed with authority by the owner.3 A master appointed abroad by a consul, or any official person, agreeably to the usage of merchants in the given case, has the same power. So the master of a steamboat, or of a privateer, has similar powers; always under the definition or description we have given above, of the necessity which creates or confers those powers.

6

Even if the contract be without the usual scope of the mas

1 Webster v. Seekamp, 4 B. & Ald. 352. The question in this case was whether the owners of a vessel were liable for copper furnished by the order of the captain. The vessel was bound to the Mediterranean. It was proved that although it was extremely useful to copper vessels bound to that sea, yet it was not absolutely necessary, for many vessels went there without being coppered. The jury having found a verdict for the plaintiff, the court refused to set it aside. Abbott, C. J., said: "I am of opinion, that whatever is fit and proper for the service on which a vessel is engaged, whatever the owner of that vessel, as a prudent man, would have ordered, if present at the time, comes within the meaning of the term 'necessary,' as applied to those repairs done or things provided for the ship by order of the master, for which the owners are liable." 21 Bell, Comm. 413.

3 See ante, p. 235. In Breed v. Ship Venus, U. S. D. C., Mass., 1805, it was held that charterers might lend money for the necessities of the ship to the captain of the ship appointed by themselves, and that a bond given to them by this master could be enforced against the ship.

* He may also give a bottomry bond. The Zodiac, 1 Hagg. Adm. 320; The Nuova Loanese, 22 Eng. L. & Eq. 623. In The Cynthia, 20 Eng. L. & Eq. 623, the consul appointed the master, and gave a bond himself. It was pronounced valid.

5 The Steamboat New World v. King, 16 How. 469.

6 We shall see, post, p. 393, n. 2, that the owners of a privateer are liable for the torts committed by the master, and it would follow that they are liable for his con

tracts.

ter's employment, as the purchase of a cargo,1 it may be adopted and confirmed by the owner; and such ratification may be express, or proved by acts which indicate such confirmation, or inferred from the voluntary acceptance and retaining of the cargo,2 or from the fact that that owner had frequently and usually employed that master to act for him in that way. But a master cannot, by any official or implied authority, annul or materially vary a contract expressly made by the owner himself; circumstances may change entirely, and it is perhaps possible that this change be such as to authorize the master to rescind or vary the owner's express contract; still, in point of fact, it may be said that nothing can raise a presumption of authority to do this; nor can he bind the owner by a contract which is clearly neither necessary nor beneficial; as to carry goods in his ship free from freight and without any compensation whatever.5

It may, perhaps, be proper to remark, that the liability of the master and of the owner are both controlled by the rule, that any party who chooses to give credit to one only when he might have held others, cannot afterwards resort to those others. Thus, if one contracts for supplies to the ship, with the owner exclusively, he can never look to the master; and if with the master exclusively, he can never look to the owner. And this exclusive credit may be proved either by words and express agreement, or

6

1 Newhall v. Dunlap, 14 Maine, 180; Hewett v. Buck, 17 Maine, 147; Lyman v. Redman, 23 Maine, 289.

2 Hewett v. Buck, and Lyman v. Redman, supra. In the latter case, the owners of the vessel sent the cargo which the master had bought to another port. While on the way part was thrown overboard to save the ship, and on arrival the residue was sold and the proceeds applied to the repair of the vessel. Held that this was a ratification of the purchase by the master. See also, Peters v. Ballistier, 3 Pick. 495; Hathorn v. Curtis, 8 Greenl. 356.

3 Davis v. Marshall, 4 Harring. Del. 64.

4 Burgon v. Sharpe, 2 Camp. 529.

5 See Dewell v. Moxon, 1 Taunt. 391, and cases ante, p. 241, n. 2. But if a custom is proved to carry a certain class of passengers free, the master can bind the vessel by giving such a free passage. The Steamboat New World v. King, 16 How. 469. And he can bind himself to carry the goods of a seaman free, and it would seem that he could also, in such a case, bind the owners. Harrison v. Sch. Eclipse, Crabbe,

223.

6 Farmer v. Davies, 1 T. R. 108; Farrel v. M'Clea, 1 Dall. 392.

7 See cases ante, p. 384, n. 2.