a ployment of a general ship. This is a reasonable rule, and founded on just principles of commercial policy. It is to be traced to the Roman law, which gave to the master, on the voyage, in whatever matter concerned the ship, the powers of the exercitor or employer, and he could bind him by his acts as master; and all the foreign marine ordinances give this power, but with greater precision and more exact regulation.b The master is appointed by the owner, and the appointment holds him forth to the public as a person worthy of trust and confidence, and the appointment may be revoked at discretion. The master is always personally bound by his contracts, and the person who deals with the captain in a matter relative to the usual employment of the ship, or for repairs or supplies furnished her, has a double remedy. He may sue the master on his own personal contract, and he may sue the owner on the contract made on his behalf, by his agent, the master. The latter may, however, exempt himself from personal responsibility, by expressly confining the credit to the owner, and stipulating against his personal liability.c If there was no special agreement in the case, the French Ellis v. Boson v. Sandford, Carth. Rep. 58. Rich v. Coe, Cowp. Rep. 636. Turner, Term Rep. 531. Reynolds v. Toppan, 15 Mass. Rep. 370. Webster v. Seekamp, 4 Barnw. & Ald. 352. Abbott on Shipping, 5th Am. edit. 1846, pp. 162-166. By the civil law, the master was the propositus, or agent of the owner or exercitor, and could bind his principal in all matters relating to the employment. The exercitor was bound for the acts of the master ex contractu and ex delicto. Voet, Com. ad Pand. 14. 1. 7. He was the employer, or person who received the earnings of the vessel. Exercitorem autem eum dicimus ad quem obventiones et reditus omnes perveniunt. Dig. 14. 1. 1. 15. Ibid. 14. 1. 1. 7. Ibid. 14. 1. 7. The general maritime law of Europe does not allow the master to bind the owners personally at all, and only to the extent of their interest in the ship and freight. The foreign ordinances and jurists are referred to on this point by Mr. Justice Story, in the case of Pope v. Nickerson, 3 Story R. 479, 480, where the marine law is discussed on the liabilities of the owners and power of the master, with his usual ability and learning. And when, by the charter-party, the charterer takes the vessel into his own possession and control, and navigates her by his own master and crew, the liability of the general owner ceases, and the charterer becomes owner, pro hac vice, and he alone is responsible for the acts of the master. Thompson v. Snow, 4 Greenleaf, 264. Emery v. Hersey, ibid. 407. The Phebe, Ware's Rep. 265. 268. • Hoskins v. Slaton, Cases temp. Hard. 360. Lord Mansfield, Parmer v. Davies, 1 Term Rep. 108. Lord Ellenborough, Hussey v. Christie, 9 East's Rep. 432. law, both in the ordinance of 1681 and in the new code, gave to the owner the power to discharge the master in his discretion, and without being responsible in damages for the act. M. Delvincourt and M. Pardessus, in their commentaries on the new code, condemn the existence of such a power, while M. Boulay Paty vindicates it, on the ground that the ap pointment of the master is an act of pure and volun*162 tary confidence, and *the principal necessarily has that control over an agent, for whose acts he is accountable, and it is in the power of the master to provide for the case by a special contract for indemnity in case of dismission.a In England, if the master be not an owner, the majority of the owners may remove him at pleasure; but if he be part owner, some special reason, to be judged of by the court of admiralty, though not minutely or severely, is requisite before the court will interpose. In the Scottish admiralty it is also held, that ship owners may dismiss the master at any time, without cause assigned, and the majority may dismiss him in his character of master, even if he be a joint The master is bound to conduct himself, in all respects, with good faith, diligence and competent skill, and he is responsible to the owners, as their agent, for his conduct. (1) His misconduct will subject him to the forfeiture Ord. de la Mar. des Propriétaires, art. 4. Code de Commerce, art. 218. M. Pardessus, tome ii. 85. M. Delvincourt, Inst. Droit Com. tome ii. 294. Boulay Paty, tome i. 324-329. In the fourth edition of his Cours de Droit Com. tome iii. No. 626, M. Pardessus seems to have withdrawn his objection to the owner's discretionary power to dismiss the master. b The New Draper, 4 Robinson's Adm. 287. Johan & Siegmund, 1 Ed. Adm R. 242. • Bell's Com. vol. i. 506. 508. Mr. Curtis concludes, from an examination of the subject, that by the maritime law the owners have a right to remove the master, who is a part owner, at their pleasure, paying him for his share of the vessel; but if he be removed without good cause, after an engagement for a particular voyage, he thinks they are bound to pay him damages for his losses and responsibilities incurred as master. Treatise on the rights and duties of Merchant Seamen, Boston, 1841, 165. The French law will not allow the master, in a foreign port, to pass a night from his ship, unless it be necessary in the business of his employers. Pardessus, (1) The master or supercargo, when paid specific wages, have no right to traffic on their own account. Matthewson v. Clarke, 6 How. R. 122. of his wages, if it be gross in its circumstances, and attended with serious damage to the owner; and, in cases of a venial nature, the damages which his unwarrantable acts may have produced, will be a charge upon his wages.a The master may, by a charter-party, bind the ship and freight. This he may do in a foreign port in the usual course of the ship's employment; and this he may also do at home, if the owner's assent can be presumed. The ship and freight are, by the marine law, bound to the performance of the contract. As the admiralty has no jurisdiction in this case, unless according to the unsettled doctrine laid down in De Lovio v. Boit, and as the courts of common law cannot carry into effect the principle of the marine law, by which the ship itself, in specie, is considered as security to the charterer, it was supposed by Abbott, that the *163 owners may be made responsible for the stipulations in a charter-party so made by the master, by a special action on the case, or by a suit in equity.d The master can bind the owners, not only in respect to the usual employment of the ship, but in respect to the means of tome iii. 67. The master cannot quit the vessel on the voyage, unless from necessity or on due notice. Whether he be employed for a specific voyage, or the vessel be a general trading vessel, it is his duty to perform his contract, and finish the voyage, or bring the vessel home if possible; and in cases of capture, to remain with the ship until recovery be hopeless. Willard v. Dorr, 3 Mason's R. 161. See infra, 213. • Willard v. Dorr, 3 Mason, 161. Freeman v. Walker, 6 Greenleaf, 68. The master of a steamboat, employed in the transportation of passengers, like the master of a vessel engaged in the merchant service, can bind the owners in a contract for freight, to be carried according to the usual course of the boat; and he is answerable personally for the diligence of all persons, even for a pilot appointed by the owners, and from injuries resulting from want of due care. Denison v. Seymour, 9 Wendell, 1. Porter v. Curry, 7 Louis. Rep. 233. Patton v. Magrath, 1 Rice's S. C. Rep. 162. In this respect, the master of a merchant vessel or steamboat differs from the commander of a ship of war in the public service. Nicholson v. Mounsey, 15 East, 383. b Ord. de la Mar. liv. 3. tit. 1. art. 11, and Valin, ibid. tome i. 629. But the master cannot, merely in the character of master, bind the owners by a charterparty under seal, so as to subject them to an action of covenant. Pickering v. Holt, 6 Greenleaf, 160. • See vol. i. 367. & Abbott on Shipping, 5th Am. edit. Boston, 1846, p. 161. employing her. (1) His power relates to the carriage of the goods, and the supplies requisite for the ship, and he can bind the owners personally as to the repairs and necessaries for the ship; (2) and this was equally the rule in the Roman law. But the supplies must appear to be reasonable, or the money advanced for the purchase of them to have been wanting, and there must be nothing in the case to repel the ordinary presumption that the master acted under the authority of the owners. If the moneys be advanced to the master while abroad, it will be incumbent on the creditor, if he means to charge the owner, to show the apparent or presumed necessity of the repairs or supplies for which the money was advanced; and this strictness, requisite to the exercise of the master's authority, arises from the facility of misapplication, and the temptation to abuse, to which the power is incident. But if the money was fairly and regularly lent to supply the necessities of the ship, the misapplication of it by the master will not affect the lender's claim upon the owner. This is equally the language of the civil law, and of all the foreign civilians. The great case of Cary Dig. 14. 1. 8. 10, 11. Speerman v. De Grave, 2 Vern. Rep. 643. Sansum v. Braggenton, 1 Vesey's Rep. 443. Ross v. The Ship Active, 2 Wash. Cir. Rep. 226. Abbott on Shipping, 5th Am. edit. 1846, p. 169. Webster v. Seekamp, 4 Barnw. & Ald. 352. The Ship Fortitude, C. C. U. S. for Mass. August, 1838. 3 Sumner's R. 228. The Law Reporter, vol. i. No. 5. But it is an established principle, that the authority of the master as to the employment of the ship, or repairing the ship, or supplying the ship with provisions, abroad as well as at home, is limited by the express or implied authority of the laws of his own country, or the usage of trade, or the business of the ship, or the instructions of the owner, and he cannot bind the ship or owner beyond these limits. Story, J., Pope v. Nickerson, 3 Story's R. 477. 480. Judge Story, in this case, after citing and reasoning on the foreign authorities, arrives at the conclusion that the master can make no contract in a foreign country, which shall bind the owners of a ship, except as to what they expressly authorize, or the general law of his own country has recognised, and that then it will bind them no further than that law binds them, whether it be in personam or in rem. Dig. 14. 1. 9. Loccenius, lib. 2. c. 6. n. 12. 2 Emerig. 440. Boulay Paty, (1) The master has no general authority to sign bills of lading for goods not received. Grant v. Norway, Law Journal Reps. May, 1851, C. P. p. 93. (2) There is no such relation between the owners of a vessel and the master, as will enable him to draw bills on them for necessary repairs, and bind them as acceptors. Bowen v. Stoddard, 10 Met. R. 375. v. White, which underwent much discussion, established the principle of the personal responsibility of the owners, provided the creditor could show the actual existence of the necessity of those things which gave rise to his demand; and this *doctrine is considered to be equally *164 well established in the jurisprudence of this country.a Under the French ordinance of 1681, the master might hypothecate the ship and freight, and sell the cargo to raise moneys for the necessities of the ship in the course of the voyage, but he could not charge the owners personally. He could only bind their property under his charge; and the new code of commerce has followed the same regulation. It declares, that the owner is civilly responsible for the acts of the master, in whatever relates to the vessel and the voyage, but the responsibility ceases on the abandonment of the vessel and freight. The power of the master is limited to raise money for the necessities of the voyage, by borrowing on bottomry, or pledging, or selling goods to the amount of the sum wanted. The French civilians are zealous in the vindication of the equity and wisdom of their law, which, on abandonment of the ship and freight, discharges the owners as to the contracts, as well as to the defaults of the master. Emerigon has bestowed an elaborate discussion on the point; and this was equally the maritime law of the middle ages. The law on this subject is the same in Holland as in France ;d and the learned Grotius, in a work where we should hardly have expected to find such a mu Cours de Droit Com. tome i. 119. Roccus, de Navibus, not. 23, 24. See infra, pp. 171, 172. n. 1 Bro. P. C. 284. edit. 1784. S. C. Abbott on Shipping, 5th Am. edit. 1846, p. 173. Rocher v. Busher, 1 Starkie, 27. Wainwright v. Crawford, 4 Dallas' Rep. 225. Milward v. Hallet, 2 Caines' Rep. 77. James v. Bixby, 11 Mass. Rep. 34. The Jane, 1 Dods. Rep. 461. The Ship Fortitude, C. C. U. S. for Mass. August, 1838. 3 Sumner's R. 228. The Law Reporter, vol. i. No. 5. Good faith and an apparent necessity, under the exercise of the judgment at the time, are sufficient to justify the bottomry loan. This mitigated necessity was allowed by Mr. Justice Story in the case last cited, after great research, to be sufficient. b Ord. liv. 2. tit. 8. Des Propriétaires, art. 2. Code du Commerce, art. 216. 234. • Code, art. 216. Emerigon, Cont. a la Grosse, c. 4. sec. 11. Boulay Paty, tome i. 272-278. a Van Leeuwen's Com. on the Dutch Law, b. 4. c. 2. sec. 9. |