7 Barnewall & Cresswell, 30, kinson. Cowper, 636, 1 Dowling & 1 Starkie, 230, Mitchell v. Glennie; and see 1 Terin The register acts do not influence the case. And a very modern decision confirms the opinion that a mortgagee who does not interfere in the management of the ship, shall not be made liable for contracts to which he is no party. But if the party continue possessed of a vessel, whether or no he reap the profit of her voyages, an implied credit arises, which renders him liable for things supplied, though without his knowledge. As where the master took on lease a ship from the owners with an agreement that he should have the sole management and sole benefit of it, the owners were held liable, for the creditors ought not to be prejudiced by any privy contracts between the owners and master. And so, again, where one sold his interest to the other, but desired his name to continue as registered owner by way of collateral security for the payment, the seller was held still liable, though he did not meddle with the ship's concerns. Even after an abandonment to underwriters, owners are liable for supplies ordered by the supercargo, being for their benefit as far as intention went, and even after Rep. 73, Yates the ship had gone a second voyage, since they had instituted a suit in the Admiralty Court to recover possession of the vessel, and thus had connected themselves with it. v. Hall. done some act, such as taking the oath, to connect himself with the register. See Ryan & Moody, 199, Cox v. Reid. Beyond question, if the register be not evidence against a man, it cannot be evidence for him. This point arose where the defendant was desirous of proving a plea in abatement by the register, which he expected would show others jointly liable with himself. 3 Campbell, 240, Flower v. Young; and 4 Taunton, 652, Pirie v. Anderson, where the plaintiff, who sued upon a policy of insurance, was nonsuited for want of better evidence than the register. The responsibility of owners for the acts of their agents will be discussed at length hereafter, but it is desirable to inquire for a moment into the situation of the mortgagee of a vessel as it respects his ownership and liability: and here again the question of contract between the parties immediately occurs. A mortgagee of a ship out of possession was no more considered liable than a mortgagee of an estate, title having nothing to do in the case. And the new statute (r) declares, that if it be expressed on the certificate of registry that the transfer has taken place by way of security for debts, or by way of mortgage, such mortgagee shall not be deemed an owner. We will now advert to the condition of an owner who has let his ship by a charter-party. And the general principle is, that the charterer, and not the owner is the person liable under these circumstances: so that where 2 Campb. 482, Mackenzie v. Rowe. 13 East, 238, Frazer v. Marsh, an action was brought against owners for not delivering 3 Espinasse, 27, goods, but it turned out that they had let their vessel James v. Jones. by charter-party, the plaintiff was nonsuited. And so, again, the defendants, registered owners, were held not liable, having let their vessel in like manner, and not being proved to have exercised any authority over the voyage. "To say that the registered owner who divests himself by the charter-party of all control and possession by Lord Ellenof the vessel for the time being in favour of another, borough. who has all the use and benefit of it, is still liable for stores furnished to the vessel by the order of the captain during the time, would be pushing the effect of those acts much too far." (s) And even in a case where the appointment of the crew and the navigation of the ship (r) 6 George 4, ch. 110, sect. 45. (s) There is a case in contradiction to these, 2 Strange, 1251, Parish v. Crawford. But Lord Tenterden, after citing the authorities mentioned in our text, treats the case in 4 Maule & Sel wyn, 288, Mas ter of the Trinity House v. Clark. 2 New Rep. East, 13, Blewitt v. Hill. were retained by the owners, (it was the letting of a vessel to the Crown for the transport service,) it was held as a matter of public policy that the temporary ownership passed to the Crown, and that the defendant was not liable, as owner, for Trinity-house dues. Yet in Fletcher v. Braddick, where a ship appeared to have been chartered to the Commissioners of the Navy; 182; and see 13 a commander of the navy, and a King's pilot were on board, and the seamen were under their direction though paid by the owners; it was held, that such owners were liable for an injury sustained by reason of the vessel falling foul of the plaintiff's ship. 2 Starkie, 438, Scott v. Scott But where the owner of a barge lent it to another, who navigated it with his own men, the proprietor was held to be relieved from the consequences of an accident which happened through the negligence of the other's people. It is, nevertheless, very worthy of observation, that if a tradesman undertake to do any thing to a ship upon a special promise either from the master or the owner, 2 Strange, 816, the other party is discharged, for the personal credit, the marrow of the transaction, will be wanting. Garnham v. Bennett; 1 Term Cowper, 639, 1 Term Rep. 109. By Lord Ken yon, 7 Term Rep. 312. By the rules of law at present established, the liability of the owners for necessaries is a personal obligation, and not a charge upon the ship in specie. And Lord Mansfield's position, that the tradesman has three securities, the owner, the master, and the ship, has been considered too large. True it is, that as long as a shipwright is at work upon a vessel, which he specifically possesses for that purpose, he must have a lien upon it Strange as one which probably is not law.. Abbott on Shipping, p. 22. See also Cowper, 143, Vallejo v. Wheeler; 7 Taunton, 627, Soares v. Thornton. Alderson, 341, according to the constant usage of trade (t); but if he 4 Barnewall & never acquire such power over it, or if he part with Franklin v. his possession, a mere personal obligation remains. A Hosier. man supplied a ship in port with sails, and there was no hypothecation, and the Court determined in effect that 2 Shower, 338, there was here no lien. So it was where a cable was furnished for the ship's use; and whatever may be the usage of nations which adopt the civil law, the creditor, according to the law of this country, must look personally to the owner, unless there be an absolute pledge of the ship. Hoare v. Clement. 1 Salkeld, 34, Justin v. Ballam; 2 Lord Raymond, 805, same case. Vesey, senior, 154, Buxton v. Snee; 1 Atkins, 234, ex parte Shank; Abbott on Shipping, p. 115, Wood v. Hamilton. See, however, 3 Robinson, 288, The John, and Abbott 116, observing upon that case. The necessaries to which we have alluded are such as the vessels needs, such as a prudent owner would order were he present. So that upon an exigency a master may borrow money, where he cannot procure it upon the security of the ship, and so charge the to do this at home as owners; and it be may necessary well as abroad; for example, it may be requisite to pay the wages of seamen at the port of discharge. 4 Barnewall & Evans v. WilAbbott, p. 103, liams. 7 Price, 592, Robinson v. Lyall. Rocher v. Bu mentary Cases, Yet, first, there must not be an indefinite appropriation 1 Starkie, 27, of the money; next, it must be necessary expenditure; sher. thirdly, there must be a specific sum for a specific 5 Brown Parliapurpose, for, otherwise, the owners would be at the 325, Cary v. captain's mercy; and further, the actual application of it must be proved. Lord Chief Justice Gibbs held at Nisi Prius, that there was no implied undertaking by the owner of a ship that (t) Unless, indeed, there be any agreement for credit. There is a custom that the shipwrights having docks in the river Thames should give credit, unless a ready-money payment is stipulated for, and in such a case, of course, a vessel may not be detained. 4 Campbell, 146, Raitt v. Mitchell. White. a Starkie, 428, 2 Palmerv.Gooch. Ibid. Cow. Rep. 50,Boglev.Atty. 4 Campbell, 254, Harder v. Brotherstone. For injuries to the freight, &c. Abbott, p. 259, 1 Term Rep. 33. 10 East, 530, Atkinson v. Ritchie. a bill of exchange drawn by the master on a third person for supplies to the vessel abroad should be duly honoured. The established doctrine, that a principal is amenable for the acts of his agent, most strongly applies to the relation of master and owner of a ship. Wherefore it is, that when we come to speak more particularly of the liabilities and duties of a master, many points relating to his employer will be necessarily involved, and which may be properly considered in a subsequent page. But as there are many cases of compensation on the owner's part which do not bring the master into question, it may, perhaps, be convenient to examine them in this place. A modern bill of lading makes this exception: "The act of God (u), the King's enemies, fire and all and every other danger and accident of the seas, rivers, and navigation, of whatever nature and kind soever excepted.” Therefore, a catastrophe by lightning will not render any parties liable. And in case of an embargo there must be an actual restraint, not a mere apprehension upon the subject. Fire, independently of this cautionary exception, was provided for by an Act of Parliament, passed in the last reign; but on the subject of sea-perils some discussion aRolle's Abridg has occurred. It is clearly agreed, that a loss through (u) It must be immediate, as an earthquak e, &c. Where part of a bank had been swept away by a great flood, so that a vessel struck on the remaining part, and her goods were spoiled, but had the bank continued in its former position, no harm would have happened; Mr. Justice Heath considered this not to be an immediate act of God, and consequently the Abbott, p. 252. master, against whom the action was brought, and to whom no Suith v. Shep- negligence was imputed, had a verdict against him. Hence it was, that " every danger and accident of the sea" was introduced into the excepting sentence. herd. |