The ship-master's assistant, and owner's manual. [With]

concerned, to sell the ship as she then lay, with all her materials, to the best bidder. Cunningham advertised the ship for sale by auction as a wreck; he acted as auctioneer and charged his commission, and she was sold on the 15th of March, to one Dunn, for £1210, Jamaica currency, or about £864 sterling. One of the surveyors attended and bid at the sale. Dunn sold the vessel to Robert Moulton, a brother of one of the defendants, who, upon his own oath of ownership, and surrender of her register, obtained a new register at Jamaica, and transferred her there to the three defendants, one of whom was one of the four masters by whom she had been surveyed. The vessel was got off the sand with considerable difficulty, but very little injured; and after some slight repairs, returned to England with a cargo. The ship had cost £3700 before she left England, and was little more than three years old.

The owners, being dissatisfied with this sale, brought the present action to try its validity; and, at the trial, it appeared by the evidence of Cook, and of three of the masters who had surveyed the ship, that they had paid very little attention to the vessel itself, which was never pumped before they made their report; but they swore that they thought a sale the most prudent step that could be taken, by reason of the difficulty, expense, and hazard, of removing her from her situation, and the little resources that Cook had for such a purpose. The plaintiffs contended that the master of a ship could not dispose of her in any case; or that, admitting him to have this power in a case of absolute necessity, this necessity did not exist in this instance, and the whole transaction was a gross fraud.

Lord Ellenborough, C. J. offered to reserve the question of the master's power to sell under any circumstances, for the consideration of the court, if the verdict should render that point material; and stated his own opinion to the jury to be, that "although the master had no general authority to sell, he had an implied authority, in cases of extreme necessity, to act for the benefit of the concern, exercising a sound discretion, such as the owner himself would exercise if he were upon the spot; and that, in extreme cases, and such only, he had a power to sell, as in the instance of a wreck which could not be got off, and ought not to be left to perish absolutely. His lordship desired the jury to consider, whether, in this case, there was such a necessity as would have induced the owner himself to sell, if he had been present; and, if they thought there was a necessity, then, whether the sale in this instance, was fraudulent." The jury found a verdict for the plaintiffs.

The deputy naval officer noticed in the preceding case, is the deputy of an officer appointed by the governor of the colony, to receive an account of ships and cargoes upon arrival; and, in the course of the trial, no regard was paid to his authority; as it appears that his situation gives him no manner of jurisdiction on such a subject. In commenting upon the evidence, the Chief Justice adverted particularly to the circumstance of one of the surveyors having bid at the sale, and another became a purchaser before the ship left the island. He added that it might be a useful lesson to teach such persons, that, by accepting the office of surveyor, they elected, not to become purchasers, and not to derive any benefit from a sale.

At a subsequent trial, Andrews v. Glover, (see Abbott, 9.) Sittings after Trinity Term, 46 Geo. III. at Guildhall, before Lord Ellenborough, C. J. brought to recover the value of a ship which had been,

in like manner, condemned and sold at Tobago, as incapable of repair, and in which also the plaintiff succeeded, the Chief Justice said, that "he considered a proceeding of this sort not as the sentence of a court, pronounced for the captors of a captured vesssel, but rather as the inquisition of a sheriff, for the purpose of information to those who, under certain circumstances, have the power of selling the ship. Such an inquisition is not conclusive upon the party whose property is in question, but the facts on which the condemnation proceeds, may be again litigated in this country, by any of the parties interested in disputing them."

In reviewing the subject of "the sale of ships," by masters and captains, and observing upon the legal difficulties with which such sales are environed, the hypothecation of ships has been noticed. This, therefore, seems the proper place for the introduction of some remarks upon that particular kind of transaction. To hypothecate a ship, then, is to pawn or pledge the same for necessaries; and is a power which, from the necessity of the case, the master possesses in a greater, or less restricted degree, by the laws of all commercial maritime countries. According to our law, the hypothecation by a master is limited; first, to the case of the vessel being in a foreign country, or in the course of her voyage thither, and not in the place of her owner's residence; and secondly, tc instances of necessity. The former of these limitations, however, has received a liberal construction, and the latter a more strict one.

Thus, in the case of Menetone v. Gibbons, (3 T. R. 267.) Ireland was held to be a foreign country, so far as to justify the hypothecation of a ship, the other circumstances being regular. And in another case, in the Admiralty Court, (see 4 Rob. 1.) a similar opinion was supported with respect to the island of Jersey, for similar purposes.

The authority of hypothecation in the abstract, is so well ascertained and understood, that it is unnecessary to adduce decisions to confirm it, but some collateral adjuncts to, or corollaries from, the abstract right, may require some elucidation. For example, according to the very nature of hypothecation, the owners are never personally responsible; but the remedy of the lender is against the master and the ship only. This, however, proceeds upon the supposition of the security being a common hypothecation bond; for there is nothing to prohibit a master from giving an additional, or supplementary security upon his owners. But in such case, there can be no maritime interest recovered upon the security which is without maritime risk. (See Sampson v. Braginton, 1 Vesey, 443.)

Nor has a master authority to hypothecate the ship and freight only, but under particular circumstances, as when the charge for repairs, &c. exceeds the value of the vessel, the cargo also. But this authority must not be exercised beyond the strict necessity of the occasion. The law on this point is minutely laid down in the instance of the ship Gratitudine, (3 Rob. 246.) And see Freeman v. East India Company, 5 Barn. & Ald. 617. recognised afterwards in the case of Morris v. Robinson, 3 Barn. & Cress. 196, and Cannan v. Meaburn, (1 Bingham, 243.) The conclusion from the judgment in these cases is clearly this; viz. that the authority of a master to hypothecate every thing placed under his care, so far as may be necessary for the safety of the ship, and advantage of the voyage, is unquestionable, but that such authority is only commensurate with the real and actual neces

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sify; and, therefore, that though he may be under a necessity of selling the whole cargo, it can seldom happen that the sale of more than a portion of the whole can be requisite, and that if not requisite, all that is sold beyond the portion necessary for repair, and the general advantage, is illegally sold, and hypothecation cannot be supported further than this.

When a master sells goods under these circumstances, the underwriter is not answerable for the loss. 2 Barn & Cress. 7.

BILLS OF LADING

A bill of lading is a writing wherein masters of ships acknowledge the receipt of goods on board, and oblige themselves to deliver the same in good order and condition at the place whither they were consigned. There must always be three made out, and in England they are to be on stamped paper, otherwise they are invalid; of which one should be remitted, by the first post after signing, to the person the goods go to; another be sent him by the ship; and the third remain with the shipper: besides which, a fourth should be made out, on an unstamped paper, to be given to the master for his government.

W. B. No. 1. a. 10.

The Form of a Bill of Lading.

SHIPPED, in good order, by A. B. merchant, in and upon the good
ship called
whereof C. D. is master, now riding at
anchor in the river Thames, and bound for Alicante, in Spain, ten
bales, containing fifty pieces of broad cloth, marked and numbered as
per margin; and are to be delivered in the like good order and condi-
tion, at Alicante aforesaid, (the act of God, the king's enemies, fire, and
all and every other dangers and accidents of the seas, rivers, and navi-
gation, of whatever nature and kind soever, save risks of boats, so far us
ships are liable thereunto, excepted,) unto E. F., merchant there, or to
his assigns, he or they paying for the said goods

per piece freight, with primage and average accustomed. In witness
whereof, I, the said master of the said ship, have affirmed to three bills
of lading, of this tenour and date; the one of which bills being accom-
plished, the other two to stand void. And so God send the good ship
to her desired port in safety; Amen.

Dated at London.

The difference between a bill of lading and a charter-party is, that the first is required and given for a single article, or more, laden on board a ship that has sundry merchandise shipped for sundry accounts; whereas a charter-party is a contract for the whole ship. Bills of lading ought to be signed by the master within twenty-four hours after the delivery of the goods on board. But, upon delivery of the goods, the master, or other person officiating for the master in his absence, is to give a common receipt for them, which is to be delivered up, upon the master signing the bill of lading.

Upon delivering the goods at the port of destination to the shipper's factors or assigns, giving up the bill of lading sent to the factors or assigns is a sufficient discharge, but the master may insist on a receipt.

Bills of lading are transferable and negotiable by the custom of merchants. And there is no distinction between a bill of lading indorsed in blank, and an indorsement to a particular person.

A bill of lading is negotiated and transferred by the shipper's indorsement; and when such bill of lading is transmitted from abroad, it is usual for merchants to accept bills in consequence, before the arrival of the goods.

Where several bills of lading of different import were signed, no reference is to be had to the time when they were signed by the captain; but the person who first gets legal possession of one of them, by delivery from the owner or shipper, has a right to the consignment; and though there may be a difference on the face of them, if the captain have acted bona fide, a delivery according to such legal title will discharge him from them all.

The usual clause in a bill of lading engaging the master of the ship Ito deliver the goods to the consignee or his assigns, he or they paying freight for the said goods, is introduced for the benefit of the master only, and not for that of the consignee; and therefore the master is not bound to the consignor to withhold the delivery of the goods unless the consignee or his assigns pay the freight.

When there is the least reason to suspect the quantity is not right, or that there is any damage in the goods, always write,

(If hemp, flax, bars of iron, &c.)

Quantity and conditions unknown; and three bundles of hemp in dispute: if on board, to be delivered.

(If linen, yarn, bales, hardware, &c.)

Insides and contents unknown to

Thomas Smith.

(If tar, wines, brandy, turpentine, &c.)

Contents and conditions unknown; not to be accountable for leakage: and it is agreed that the freight shall be paid for the quantity shipped. Thomas Smith.

By 55 Geo. III. c. 184, the stamp-duty for bills of lading, of or for any goods, merchandise, or effects to be exported or carried coastwise is three shillings.

Purification of vessels.-This being a matter of great importance in case of fever or sickness appearing on board ships, the means of purifying them from bad and infectious air will be given in the chapter on Quarantine. See PART I. Chap. V.

For what relates to masters on the subject of loss by PILOTS, see PART I. Chap. V.

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