Saxton v. Read , 1 Hill & Den. 323 ( 1844 )

By the Court,

Beardsley, J.

The general authority of a master to procure all needful repairs and supplies for his ship on the credit of the owners, was not denied on the ar- and is undoubted. He is their agent in all matters pertaining to the usual employment of the ship, and they are bound to perform his contracts in the business entrusted to his care and management. (Abbot on Shipping, 4th Amer. ed., pp. 17 to 22 and notes; pp. 90 to 101 and notes; Holt’s Law of Shipping, 217 to 228.)

It was objected that this general authority of the master, although in active existence when the ship is abroad, is quiescent or suspended when she is in the port where the owners reside. This question was not decided or made in the court below, and therefore can not be raised here. But if properly made, I apprehend it would not, under ordinary circumstances, be found to present any serious obstacle to a recovery. (Abbott, 101, 108 ; Holt, 225; Robinson v. Lyall, 7 Price, 592.)

Where the general owners of a ship cease to' navigate her, and transfer the possession and control to another person, he is regarded as owner pro hac vice, and responsible accordingly. He takes the place of the general owners; appoints the master; directs the voyage, and is entitled to the earnings of the ship; he, therefore, and not the general owners, is liable for the expenses and hazards of the employment.

The authorities do not harmonize in determining what shall, in all cases, effect a substitution of the temporary for the permanent owner. (3 Kent’s Com., 5th ed., 133 to 138; Abbott, 17 to 22 and notes j Holt, 194 to 199, 461, 474; Rice v. Coe, Cowp., 636; Hallet v. The Col. Ins. Co., 8 Johns., 272.) But it is unnecessary in the present case to enter into that general question.

All the authorities on the subject will be found to agree in the position, that when the general owners navigate the ship fo'r their own profit, appoint the master, and continue or dismiss him as they think proper, so that the relation of principals and agents exists between them, the owners are liable on the contracts of the master, a-nd for his acts, in and about the necessary supply, and in the management of the ship. The business is carried on for their benefit and advantage, and it is but reasonable they should bear the expenses, and incur the risks of employers.

It was conceded on the trial that the defendant was one of the general owners of the schooner for which the supplies were furnished, but objected that Jackson was then in possession as temporary owner, and therefore the general owners were not liable. The agreement between the defendant and Jackson preceded the purchase of the stores, and continued some time after the last bill of goods had been delivered, and it must determine the relation in which these parties stood towards each other and in regard to the schooner during that period.

By the agreement Jackson was to go in the schooner as captain, and devote all his time for the benefit of the owners. He was to hire and pay the crew, except the wages of the cook which were to be divided, as also were the port charges, and he was to furnish provisions, &c.; for all which he was to be “ entitled to one half of the net profits of sailing said schooner, the other half to go to the ownersthe arrangement to continue as long as both parties should agree.

This was a mere contract, not a conveyance, between the defendant and Jackson. It did not deprive the owners of their power over the schooner, for the time being, or their right to control and direct its use. It was an employment of Jackson as captain or master, and not a transfer of the schooner to him as owner pro hac vice. General owners can not be deprived of the control and management of their property by equivocal words or engagements, where such are used or entered into. But the agreement, in this respect, is free from all obscurity: it recognizes in explicit terms the employment of Jackson as captain, and the rights of the defendant and others as owners.

There is nothing in this agreement to place Jackson be,yond the control and direction of the owners. He was their agent and subject to their orders.. It imposed no service on him which is not usually performed by the master of a trading vessel for his employers. The whole effect of the arrangement was to provide a mode by which Jackson’s compensation, as master, was to be determined. (Wilkinson v. Frazier, 4 Esp., 182; Meyer v. Sharpe, 5 Taunt., 74; Dey v. Bosnell, 1 Camp., 329, and note.) As to third persons, Jackson was but master, and the defendant and others were owners of the schooner.

It is not shown that the plaintiff had any knowledge of the arrangement between Jackson and the defendant, and it is not probable he had any. As to him the arrangement was secret. At the custom-house the defendant’s name appeared as owner and that of Jackson as master. Upon every principle applicable to such a case, it seems to me, the plaintiff was entitled to recover. (Rice v. Coe, supra; Saville v. Campion, 2 B. & A., 503; Fletcher v. Bradick, 5 B. & P., 182; Leonard v. Huntington, 15 Johns., 298; Christie v. Lewis, 2 B. & P., 410; Philips v. Ledley, 1 Wash. C. C. R., 226; Tucker v. Buffington, 15 Mass., 477; Emery v. Hersey, 4 Greenleaf, 407.)

This case is distinguishable from those in 15 and 16 Mass. R. to which we were refered.

In Reynolds v. Toppan (15 Mass., 370), the owner let and chartered his schooner to one,Marshall for thé season. Marshall was to victual and man the vessel, to purchase cargoes at his own expense, and at the end of each trip pay to the agent of the owner two-fifths of the net profits.

Putnam, J., in pronouncing the opinion of the court said, “ It is not enough to prove that the vessel was owned by the defendant. It must appear also that she was in his employment. It must likewise be proved that the master was appointed by the owner, and acted within the scope of his authority. ” And he added that by the agreement Marshall -“became the owner pro hac vice. She was in the employment of Marshall, and he directed when and where she should go. He had a right to act as master himself or appoint any other master.” “The defendant for a season had parted with his right to govern and manage the vessel, and Marshall can not be considered as the defendant’s agent or servant.”

In principle the case in 16 Mass., 336, (Taggard v. Loring) is the same. Parker, 0. J., said, “ Jennings had acquired a right to the use of the vessel from November, 1815, to May, 1816.” “ The whole management of the vessel was committed to Jennings; and within the time stipulated, he had a lawful right to exclude the general owners from the premises.” “ There was no relation of master and owners.”

These extracts show that the cases refered to are wholly inapplicable to the one under consideration, and can not control its decision. The cases of Thompson v. Snow (4 Greenl., 264) and Minsor v. Cutts (7 Greenl., 261) are, in principle, like these Massachusetts cases.

The newspaper notices may be laid out of view. It does not appear by whose order they were published. They" had no signature, and were vague and equivocal in their terms and import. If the plaintiff saw them in print, I think they could not affect his right to recover for these supplies.

The judgment should be affirmed.

Judgment affirmed.