What shall be deemed neces- saries for a ship. Webster v. Seekamp. nean; vessels went to the Mediterranean without being coppered. At the trial, it was contended that the owner of a ship was liable only for contracts made by the captain in respect of stores, or repairs, that were absolutely necessary; and, therefore, that the defendants in this case were not liable. The learned judge left it to the jury to say, whether the coppering was useful and proper for a vessel about to proceed on a voyage to Newfoundland and the Mediterraand whether it were that which a prudent owner himself, if present, would have ordered. The jury found that it was, and the plaintiff obtained a verdict. A rule nisi for a new trial having been obtained, it was contended that the owners were liable for any necessary supplies furnished, or repairs done by the master's order. Abbott on Shipping, 4th ed. p. 127. The term necessary meant what was reasonably fit and proper for the occasion. So, also, an infant is liable for necessaries, which means such things as are suitable to his degree, estate, and condition; for that is the language of the replication to the plea of infancy. It was contended that the question left to the jury was, whether the supplies furnished were such as a prudent owner, if present, would have ordered. The true question, however, was, whether they were absolutely necessary; and Cary v. White, 5 Brown's Parl. Ca. 325. is an authority to shew that the liability of the owner depends upon that fact. Abbott, C. J. said, the general rule is, that the master may bind his owners for necessary repairs done, or supplies provided for the ship. It was contended at the trial, that this liability of the owners was confined to what was absolutely necessary. I think that rule too narrow; for it would be extremely difficult to decide, and often impossible, in many cases, what is absolutely necessary. If, however, the jury are to enquire only what is necessary, there is no better rule to ascertain that, than by considering what a prudent man, if present, would do under circumstances in which the agent, in his absence, is called upon to act. I am of opinion, that whatever is fit and proper for the service in 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. I think, therefore, that the question in the case was properly left to the jury, and that this rule ought to be discharged." Bayley, J. "The captain of a ship, as agent for the owners, has a general authority to act for them. They ought not to appoint a man upon whose compliance with their orders, and on whose prudence and discretion, they cannot rely. The owners are responsible for any thing ordered by him for the ship within the scope of his general authority. Now, I think it is within the scope of his authority to order such repairs or supplies as it may reasonably be supposed that the owners, if they had had an opportunity of deciding for themselves, would have ordered; and I, therefore, think that this rule should be discharged." XVI. Nor does the rule suffer any alteration, whether the master shall have ordered such necessaries, or borrowed the money to provide them, at home or abroad, provided the necessity be proved. Where the amount is considerable, and the place of the contract abroad, the more usual mode, indeed, is to borrow the money on the ship. And it has been said by the Lord Chancellor, that if in a foreign port a loan of money is necessary to enable the master of a ship to prosecute his voyage, a person making that advance is perhaps entitled to a lien on the ship, without an instrument of hypothecation. (a) But if the master finds it more convenient to borrow money by personal contract, he may adopt this method, and the court will hold his owners liable. Thus, in Evans v. Williams, (b) where the master had borrowed the money for the necessaries of the ship abroad, on his own contract, and gave in evidence (though not necessary to the case,) that he could not have obtained the money on the security of the ship, Lord Kenyon held, that the owners were of course liable; and that the lender might recover from them. As the master has this right to bind the owners by his contracts for necessaries with others; a fortiori, if he pay for such necessaries himself, he may call upon them to repay him. But as the law entertains a very just jealousy of this species of contracts, in which the same person at once incurs and admits his own account, those who are in such circumstances should be prepared to prove by the most direct evidence the absolute necessity of such victualling or repairs. Master may orsaries abroad, as well as at thereby equally bind his owners personally. der such neces home, and Master may in a foreign port, and mak borrow money his owners lia ble, provided the money be absolutely necessary for the use of the vessel. Busher. In Rocher v. Busher, (c) the plaintiff, a merchant at Oporto, Rocher v. claimed the amount of goods and money supplied to the master of the defendant's vessel, at Oporto, for the use of the ship. The counsel for the defendant admitted the liability of the master for necessaries supplied for the use of the ship: but contended that he was not equally liable for monies supplied to the captain to be subsequently appropriated by him; and denied that the monies (a) Ex parte Halkett, 2 Rose 194. and Ves. and Beam. 13. (b) Abbott, 128. See likewise Cary v. White, 1 Br. Parl. Cases, 284. had been expended in the use of the ship. But the master being himself called, and giving evidence that certain sums had been so applied, Lord ELLENBOROUGH said, "In strictness, a claim of this kind is limited to articles supplied through necessity. But where the same necessity exists, money may be supplied as well as goods, and the amount recovered. This, however, must not be understood of an indefinite supply of cash, which the master may dissipate but only such as is warranted by the exigency of the case, as for the payment of duties, and other necessary purposes. I once held, that proof of the strict application of the money to the purposes of the ship was necessary; and Mr. Justice Heath, sitting for the Chief Justice of the Common Pleas, did the same. But I cannot advise the Jury to find more than they may deem absolutely necessary for the use of the vessel." (a) And in Palmer v. Gooch, Abbott, L. C. J., ruled, that in an action against the owner of a ship for money supplied to the captain in a foreign port, it was not sufficient to prove the advance of a much larger sum than was necessary for the use of the ship, and an application of part of that sum to such uses, the residue being placed to the private account of the captain, but that it was essential to prove the advance of a specific sum; and that such sum was necessary for the use of the ship, and was so applied in fact. (b) XVII. But though the owners be liable for necessaries furnished to the ship, and money advanced to the master to purchase such necessaries, so far, and to such an amount, as the strict appropriation of the money supplied can be proved, the obligation is not so specific and ascertained as to supersede the right of the owners to examine the accounts, and to enquire into the necessity; and it has, therefore, been decided upon this principle, that the owner is not bound to honour a bill of exchange drawn by the master in a foreign port for money so supplied to him. In Harder v. Brotherstone, (c) the first count in the declaration stated that the plaintiff carried on business as a merchant, at Pernau, in Russia; that the defendant's ship being at that place, a sum of money was necessarily wanted for her use; that thereupon, in consideration that the plaintiff would advance this money, the defendant undertook that a bill of exchange, to be drawn as a (a) In this case it was held that the not on the ground of necessity, but on (b) 2 Starkie, 428. security for the amount by the master of the ship on one William Sharples, at Liverpool, should be duly honoured; that the plaintiff did accordingly advance the amount, but Sharples refused to accept or pay the bill. Gibbs, C. J., stated, "That he was clearly of opinion that there was no implied undertaking on the part of the owner of a ship, that a bill of exchange, drawn by the master on a third person, for money advanced for the ship's use abroad, should be duly honoured." So, if the master draw upon his owners for such necessaries, it should seem they would be under no obligation to accept the bill. They would, indeed, be liable to the debt the moment it is contracted: but in collateral obligations of this kind, as between master and servant, principal and agent, &c. it is totally a different thing to be liable to an account, after examination and proof, and to be subject to the instant acceptance of a bill of exchange before such account is ascertained and approved. XVIII. As sometimes the owners of a vessel employ a supercargo, the contracts which are made by an agent of this description are equally binding with those which the master makes within the scope of his authority. Therefore in Mitchell v. Glennie, it was ruled by Lord Ellenborough, that the owner of a ship was liable for stores and necessaries supplied by the order of a supercargo, after the detention and liberation of the vessel by a foreign power, although the supplies were furnished after an abandonment by the owner to the underwriters. (a) So, likewise, the owner of a packet-boat, employed by government, but of which such owner receives the earnings, is liable for the amount of stores furnished for the vessel by the orders of a captain appointed by the postmaster general. (b) But the owner of a vessel let to freight for particular voyage is not liable on the contract of the master for the non-delivery of goods; for the master, under such circumstances, though originally appointed by the owner, must be taken, pro hac vice, to be the agent of the freighter only. (c) So likewise, where the defendant bought a ship taken in execution under a fieri facias, in 1805; but not having paid the whole of the purchase-money, the sheriff did not execute a regular assignment till 1810. The defendant, however, was immediately put into possession, and got the vessel registered in his own name. In (a) Mitchell v. Glennie, 1 Stark. 230. (b) Stokes v. Carne and Others, 2 Campb. 339. And see Parish v. Crawford, 2 Stra. 1251. (c) James v. Jones and Another, 3 Esp. 27. S. C., and see ante. a Exceptions to the general rule, that the owner is bound by the contract of the master. 1806, he chartered her to the captain for three years, and interfered no more in the business. Lord Ellenborough held that the defendant was not liable for stores ordered by an agent of the captain during the three years. (a) And the Court of King's Bench refused a rule nisi for a new trial, on the ground that the relation of master and owner did not subsist between the captain and the defendant, and that the case of a ship hired for a definite period differed from that of a vessel chartered for a particular voyage, where the master is always appointed by the owner. (b) And, in another case, where the ship was chartered for a particular voyage only, and was put up by the freighter as a general ship, the registered owners were held not to be liable for a tortious conversion of the plaintiff's goods by the master, in the absence of proof that they were received on board by some person appointed by them. (c) (a) Frazer v. Marsh, 2 Campb. 517. (b) 13 East. 238. (c) Mackenzie v. Rowe and Others, 2 Campb. 482.; and see ante. Parish v. Crawford, 2 Stra. 1256.-More fully reported, Abbott, 22. But this subject will be more fully treated in the Chapter on Freight. |