East India Company. Of the power of the master to sell the cargo. Freeman v. The left it to the jury to say whether under the circumstances there was such a necessity. A verdict having been found for the plaintiffs, a new trial was moved for; and it was contended, first, that the captain, under the circumstances, had authority to sell the cargo; and, secondly, that the sale having been in market overt, the property was thereby transferred to the vendee. It must be admitted that, though the captain is not the agent of the owners of the cargo, and that he is to be considered, as to them, a mere depository and common carrier; yet, under special circumstances, the character of agent and supercargo is forced upon him by the general policy of the law. Indeed, if a captain is not at liberty, under any circumstances, to sell the cargo, it will be impossible to find purchasers for cargoes in case of wreck. How can the purchasers learn whether the captain has any special authority to sell the cargo? The true question, therefore, which should have been left to the jury, was, whether, in this case, the captain had acted bona fide, according to the best of his judgment, in making the sale. But, secondly, this was a sale in market overt; and by the law of Holland, which prevails at the Cape of Good Hope, such a sale transfers the property to a vendee; and in support of this Van Leeuwen's Commentaries on the Roman Dutch Law, p. 400. was cited. Abbott, L. C. J., "The case of the Gratitudine, which has been cited, was one where there was an hypothecation of the cargo by the master for the purpose of enabling the ship to go on with her voyage. But here the case was quite different; for the vessel having been wrecked, the object of the voyage was entirely at an end; and under these circumstances a sale of the cargo, or any part of it, by the master, could confer no title on the purchaser, unless there was an apparent necessity for such sale. That question I left to the jury; and they were clearly of opinion, that there was in this case no such apparent necessity, I also told them, that if the master was not authorised to sell, the purchaser could not acquire any title, unless by a sale in market overt, and then only where he was not acquainted with the circumstances under which the sale was made: but, upon the evidence in this case, it appeared that he was fully acquainted with them. If I was wrong in so leaving the case to the jury, there ought to be a rule granted. But I am still of the same opinion." Bayley, J., "I think the case was properly left to the jury, and that there ought to be no rule granted. The case depends on the extent of the authority which the master has over the cargo. It is a question of considerable importance: but, as it seems to me, not of any great difficulty. The master has a clear right, by the general East India to sell the cargo. marine law, to hypothecate either ship or cargo, for the purpose of Freeman v. The continuing the voyage: but beyond that he has no power, except Company. in a case of absolute necessity. There may be, indeed, cases in which hypothecation would be useless and absurd. Suppose the ship were wrecked, and her materials alone were saved; or that the cargo was saved, being perishable, and there were no means of transhipment, in such cases an absolute necessity for sale would exist, and thereby the master would be forced to become the agent of the owners for the purposes of sale: but otherwise, he would only possess the right of hypothecation. The of the power rule laid down by Holt, C. J., in Johnson v. Shippen, 2 Lord of the master Raym. 984. is this, that the master has no authority to sell any part of the ship, and that his sale transferred no property, but that he may hypothecate; and this is cited and relied upon by Lord Ellenborough, in Reid v. Darby, 10 East 157. The case of absolute necessity constitutes the only exception to this general rule. Here there was no such necessity existing; and the sale, therefore, transferred no property to the defendant. As to this being a sale in market overt, it can make no difference; for as the purchaser knew the circumstances under which the sale took place, he must be considered to have bought at his peril, and to be liable, in case it ultimately turned out that no necessity existed, to have the sale vacated. Here, too, the indigo was bought not for consumption at the Cape of Good Hope, but to be sent forward to the place of its original destination. As to the hardships on the defendant, it does not exist; for he is clearly entitled to recover from the master the price paid by him for the indigo. This rule must, therefore, be refused." XXX. Upon a review of all these cases, it appears, that the authority of the master or captain to sell the ship or cargo may be summarily stated, and limited, as follows: 1. That in a case of extreme necessity, and in such case only, can the captain or master resort to the sale of the ship; and in such case he should be provided with the strongest evidences of such necessity, in order to meet and rebut the jealousy and suspicion with which the courts of law always regard such an act of his power. 2. That a survey of the vessel made by the authority of a ViceAdmiralty Court, and a sentence of condemnation by such court consequent upon the report of their surveyors, are not of themselves conclusive evidence, (and still less authority,) of the extreme necessity of the vessel, required by law to justify a sale by the master. Upon which principle Lord Ellenborough, in Andrews v. Glover, (a) said that he could consider such a proceeding only in the nature of an inquisition by the sheriff, having for its object the information of those who claimed, and who under certain circumstances had the power of selling the ship, and was in no degree conclusive upon the owner. 3. That those, therefore, who purchase of the master, under such circumstances, should be careful to provide themselves, not only with the ordinary titles of a ship, but with the evidences of the state and extreme necessity under which the vessel was sold; and when they became the purchasers. Such evidences are the petition of the master to the court for a survey, a commission of survey, report of surveyors; decree of the judge adopting the report, petition of the master for a sale, and a commission of sale, directed to the marshal of the court. Nor will all these be sufficient, if there be any thing in the conduct of the master, or in the biddings, price, or purchase, which can supply additional matter of suspicion to that jealousy with which the law always regards a transaction of this kind. XXXI. The new registry act contains a very salutary provision in the case of vessels rendered broken and unseaworthy in foreign ports. It enacts that if any vessel registered under the authority of this act, (b) or any other act, shall be deemed or declared to be stranded or unseaworthy, and incapable of being recovered or repaired to the advantage of the owners, and shall for such reason be sold by order or decree of any competent court; for the benefit of the owners of such ship or vessel, or other per ́sons interested therein, the same shall be taken and deemed to be a ship or vessel lost or broken up, to all intents and purposes within the meaning of this act; and shall never again be entitled to the privileges of a British-built ship, for any purposes of trade or navigation. (c) The object of this clause is to prevent the fraudulent and collusive sales of ships by masters in foreign ports, upon an alleged necessity that they cannot be repaired ;-as such ships are deprived of the privileges of a register, the temptation to buy or sell will scarcely exist, except in a fair case. XXXII. Such, therefore, is the rule of law as regards the sale of the ship by the master. (d) As the value of the ship and freight, (a) Sittings after Trinity Term, 46 Geo. III. at Guildhall, Lord Ellenborongh, C. J. And see Abbott, 9; and ante. (b) Freeman v. The East India Com pany, 5 Barn. & Ald. p. 617. (d) Some early eases of hypothecation, and some incidental observations by the court upon the power of the from the extent of the injury which the vessel may sustain, may sometimes be deemed an insufficient security for the amount of the expenses of the repairs, the master, as we have already shewn, may hypothecate the cargo for the repairs of the ship when in distress in a foreign port; and even sell a part, in order to enable him to convey the residue to its destination. It should seem, however, that he cannot, under any circumstances, sell the whole of the cargo. But as to the general doctrine and the power of the master to hypothecate, or to sell a portion of the cargo for the repairs of the ship in a remote country, the reader is again referred to the celebrated judgment of Lord Stowell in the case of the Gratitudine. (a) XXXIII. The master, as we have before observed, is de jure the agent of the owner of the vessel, who is, therefore, bound by his acts as to all consequences resulting from the conduct of the ship; and it may be laid down as a general rule, that in all cases in which the master may hypothecate the ship, he may also hypothecate the freight. But he has no such extensive relation as to the owner of the cargo; being in that case only a carrier, unless specially constituted an agent. (b) Unless, therefore, in the case of extreme necessity, which requires the sacrifice or hypothecation in part or whole of the cargo as well as the ship, no act of the master can affect the owner of the cargo. (c) As he can only act for the presumed benefit of the owner, and as it can scarcely ever be for the advantage or profit of the owner that the whole cargo should be sacrificed, he cannot of course dispose of the whole by sale. It is doubtful even, whether he can act to that extent which, in cases of similar circumstances, but of a less valuable trust, the law would allow to an agent or servant, as being the presumable will of his master under the exigent circumstances of the case. Hence, though under an extreme case of difficulty or danger, it would be a reasonable presumption that the owner himself, if present, would direct a sale of the cargo, it is held to be still doubtful, in the courts of common law, whether a master should be entrusted with a power so open to abuse. XXXIV. In Campbell v. Thompson (d) it appeared that the plaintiff had shipped goods on board of a vessel, which, by stress of wea disposal of the ship by the master, may be found as follows. Bridgman's case, 12 J. 1. Hob. 11. Moore, 918. 1 Ro. Abr. 530. Scarborough v. Lyrus, 3 Car. 1. Latch. 252. Noy 95. Corset v. Husely, 1 W. & M. Comb. 135. Rep. temp. Holt, 48. and Benzen v. Jeffries, Mene 8 & 9 Will. 3. 1 Lord Raym. 152. (d) 1 Starkie, 490. agent of the The master is de jure the owner of the ship: but he is not, unless specially constituted, the agent of the owner of the cargo; but a carrier merely. S Campbell v. ther, had been driven into the port of Halifax. Part of these goods, without any urgent necessity, had been sold there by the captain, in order to defray the expenses of repairing the ship. Whilst the vessel was engaged in this voyage, Metcalfe, the owner, made an assignment of the freight to the defendant. On the ship's arrival in the port of London, the defendant refused to deliver to the plaintiff the residue of his goods, unless he paid freight for the whole. The plaintiff insisting that he had a right to set off the sum for which the goods had been sold against the demand for freight, an agreement was mutually entered into by which the plaintiff agreed to pay the freight of the goods, when it should become due, and agreed also to accept a bill for the amount; the defendant engaging to indemnify the plaintiff, in case it should appear, between that time and the time when freight should become due, that the plaintiff had any claim for deduction. The action was founded upon a breach of this undertaking. It was contended, on behalf of the defendant, that the captain had a right to sell a part of the cargo, for the purpose of repairs: but Lord Ellenborough, addressing himself to this part of the case, said, “I desire that it may not go abroad that the master, as has been contended, has any right to dispose of goods on board the ship, except, indeed, in cases of urgent necessity. There is a paucity of authorities on this subject: but this has been so decided in a case which was tried before Lord C. J. Eyre. His Lordship refused to reserve the point, adding "that to save the question would imply that he entertained doubts upon it. (a) (a) A new trial was afterward moved for in the K. B., and refused by the court. See likewise ante, the case of the Gratitudine, 3 Rob. 204. |