1818. WILSON against DICKSON. master and seven men on board her, with orders to carry her to Salem, in the United States; but a gale of wind coming on, which made it doubtful whether she would be able to reach America, the captain prevailed on the prize-master to bear up for Bermuda, on the promise that he and his men should not be made prisoners. On the 22d of February she made Bermuda, into which she was conducted by his Majesty's ship Ganymede, who instituted proceedings in the Admiralty Court there for salvage, and obtained a decree for onesixteenth of the value of ship and cargo, for assistance, but not as salvage. On the 8th day of March the part of the cargo which had not been plundered by the Americans was sold at Bermuda. The ship was afterwards repaired, and took in a cargo for Liverpool, for which the captain received a considerable freight. At the trial, it was endeavoured to be shewn on the part of the defendants, that, from the situation of the ship and cargo on her arrival at Bermuda, it was not possible to prosecute the voyage, and that the sale of the cargo therefore became necessary, but Lord Ellenborough delivered his opinion, that in any event the sale was unauthorized, and that, therefore, if it was shewn that the voyage could not be proceeded in, the plaintiff was entitled to a verdict against the defendant Patterson, upon the count in trover; and upon the reference being agreed upon, it was understood, that the arbitrator was in the first instance to inquire, whether the voyage could have been prosecuted, and according to the result of that inquiry the verdict was to be entered against all the defendants, or against the defendant Patterson only. The arbitrator, after hearing the evidence, was of opinion that the plaintiff was entitled to to his verdict against all the defendants. But with respect to the amount of the damages questions of law arose, on which the parties wished for the opinion of the Court, and the arbitrator stated the facts so as to raise those points. The plaintiff contended, first, that inasmuch as the master of the ship was in this instance a part-owner, the case was not within the statute of the 53 G. 3. c. 159. Upon this point, the arbitrator was of opinion against the plaintiff, but stated, that if his opinion was incorrect, the damages ought to have been increased to the sum of 6000l. The next question that arose was, admitting the case to be within 1818. WILSON against DICKSON, 1818. WILSON against DICKSON. 456l. 10s., the two months' freight, before stated to have been paid on the ship's sailing from Gravesend. This, the defendants contended, could not be considered as freight due or to grow due, and therefore ought not to be included in the amount of the damages; and if they were right on this point, the arbitrator stated, that they were entitled to the deduction of that sum, as it was included in the amount for which the verdict was by his award to be entered. Richardson, for the plaintiff. At common law, the defendants would be responsible to the full extent of the actual loss sustained. By the 53 G. 3. c. 159. s. 1., the owners are not to be charged with any loss arising from any act, neglect, matter or thing done, omitted or occasioned, without their fault or privity, further than the value of the ship, and the freight due or The preto grow due, for and during the voyage. amble states, that it was expedient to amend the 7 G. 2. c. 15., and 26 G. 3. c. 86., both which acts were passed to settle how far owners should be answerable for the acts of masters and mariners. The 53 G. 3. was passed in furtherance of the same object, that is, to limit the responsibility of ship-owners for the acts of their servants. In this case the master is not the servant but in fact one of the owners; he is a partner in the concern, and his co-partners are therefore liable for the consequence of his acts to third persons: had he been the sole owner of the ship, he clearly would not be within the protection of the statute. As far as respects third persons, the ownership is entire, and the loss having been occasioned by the act and with the privity of one, must be taken to have been by the act and and with the privity of all; and in that case it is not within the first section of the act. It is certainly competent to the owners to appoint a part-owner captain; by so doing, however, they vary the rights of the shipper against the underwriter. In the case of a loss occasioned by an act which would amount to barratry, in a captain not being an owner, the shipper could not recover against the underwriter, because a part-owner cannot be guilty of barratry. As, therefore, by selecting a part-owner for master, they thereby deprive the shipper of a remedy against third persons, it is not unreasonable, that they should give him a further remedy against themselves. Supposing, however, that the case is within the statute, and that the owners are answerable only for the value of the ship and freight, that value must be taken at the time of the shipment, and not of the loss. The object of the legislature, was to encourage the vesting of capital in shipping, and for that purpose they restricted the responsibility of shipowners to the amount of their capital embarked in the ship. The shipper can only look to the state of the vessel at the time of shipment: it is to that value only which he trusts as the fund to indemnify him against loss. The policy of the act only requires, that the owners' responsibility should not extend beyond their capital vested in the concern; and it is consistent with the language of the first section, that the value should be estimated at the time of shipment; for the words "at the time of the happening of such loss or damage," refer only to the freight due or to grow due, and not to the former part of the sentence. As to the third point, it is clear, that the words " freight due or to grow due," as used 1818. WILSON against DICKSON. 1818. WILSON against DICKSON. in this act, must mean the freight earned during the voyage, for tha tis the value of the freight to the owners; and the argument on the other side turns on a mere verbal criticism. Scarlett, contra. The owners of a ship cannot, like partners in general, select with whom they will be in partnership; and the master is a person chosen by the several owners; each having an influence in proportion to the quantity of his interest; a smaller proprietor, therefore, may be outvoted by the larger, who may even appoint himself. The appointment of the master not being in the selection of all the owners, it seems to be consistent with policy and justice, that the responsibility of the part-owners of a ship should bear a proportion, and even be restricted to the amount of their several interests in the vessel; and such appears long to have been the general law of Europe. Abbott on Shipping. (a) The French ordinance there referred to directs, that the owners shall be liable for the acts of the master, but shall be discharged, upon relinquishing the ship and the freight. The object of the legislature, in passing 53 G. 3. c. 159., was to assimilate the law of England to that which had long been the law of other commercial countries: and the great principle was to limit the responsibility of the several part owners to the amount of their respective capitals embarked in the ship. With reference to that principle, as far as the several owners are concerned, it is wholly immaterial, whether the owner or a stranger be captain; they are still to be answerable only to the amount of (a) 275. |