law of England and of this country as common carriers.1 So, too, the master is liable for repairs and supplies ordered by himself, whether at home or abroad, unless it appears by the contract that credit was given only to the owner. And he is liable for the wages of the seamen

2

and for pilotage.3

But the contract may be made upon the exclusive credit of the owner. If there is a special promise of the master, the owner is not liable; and e converso, where there is a special promise by the owners, the master is discharged from any obligation. The mas

ter may also, by virtue of his general authority, order necessary repairs, or make contracts within the ordinary scope of the ship's employment, upon the exclusive liability of the owner, disclosing his name, and stating that he himself is not to be responsible. But this precaution not having been taken, it becomes a question of evidence and of what will amount to evidence of exclusive credit,

Morse v. Slue, 1 Vent. 190, 238. Boucher v. Lawson, Rep. temp. Hardw. 183. Dale v. Hall, 1 Wils. R. 281. Proprietors of Trent Navigation v. Wood, 3 Esp. R. 127. Watkinson v. Laughton, 8 Johns. R. 164. Eliot v. Russell, 10 Ibid. 1. The master and owner are severally liable to indemnify the shipper in the value of the goods at the place where they were to be delivered. Watkinson v. Laughton, 8 Johns. R. 164. Amory v. M'Gregor, 15 Ibid. 24. Oakey v. Russell, 18 Martin's Louis. R. 62.

Rich v. Coe, Cowper's R. 637. Garnham v. Bennett, 2 Stra. 816. James v. Bixby, 11 Mass. R. 34. Hussey v. Christie, 9 East's R. 426. Marquand v. Webb, 16 Johns. R. 89.

3 Farrel v. M'Clea, 1 Dallas's R. 393. Abbot on Ship. part 4, ch. 4, sec. 1, note 2. Post, Part V, ch. 1.

• Hussey v. Allen, 6 Mass. R. 163. Chapman v. Durant, 10 Ibid. 47. James v. Bixby, 11 Ibid. 34. Wainwright v. Crawford, 3 Yeates's R. 131, 4 Dall. R. 225. Farrel v. M'Clea, 1 Dallas's R. 396. Schemerhorn v. Loines, 7 Johns. R. 311. Marquand v. Webb, 16 Ibid. 89. Muldon v. Whitlock, 1 Cow. 290. The Aurora, 1 Wheaton, 96. Thorn v. Hicks, 7 Cowen, 697.

Much

on which each case must be determined for itself. depends upon the kind and object of the contract and the place where it is made; and still more upon the party by whom it is made.

Repairs and supplies, whether in a foreign port or a home port, ordered by the master, will, in general, be presumed to be a charge against him as well as the owner, because the credit is given to the master in respect of his contract, and to the owner, in respect of his being the principal and the party who derives benefit.' But, if ordered by the owner, the master is never liable, because his liability is in respect of his contract. So, too, if it appears that the master merely acted as the servant of the owners to transmit their orders for repairs or supplies, it has been held that he will not be liable.3 But then the capacity in which he gave such orders ought to be clearly and unequivocally distinguishable from his general official agency, to avail him as a defence.

With regard to the wages of seamen, it seems to be the opinion of some learned jurists, that the mere fact of their being shipped by the owner, in the home port, would scarcely furnish sufficient ground for the presumption that the contract was exclusively on the credit of

1 Hoskins v. Slayton, Cas. temp. Hardw. 377. Hussy v. Christie, 9 East's R. 426. Rich v. Coe, Cowp. 636. Leonard v. Huntington, 15 Johns. R. 298. Marquand v. Webb, 16 Ibid. 89. James v. Bixby, 11 Mass. R. 34. Stewart v. Hall, 2 Dow. 29. 1 Bell's Comm. sec. 434, et seq. 3 Kent's Comm. 161. Abbot on Shipping, part 1, ch. 357, note 1; part 2, ch. 3, sec. 1, note 1.

2 Farmer v. Davis, 1 T. R. 108.

Hoskins v. Slayton, Cas. temp. Hardw. 377.

the owner. And undoubtedly the maritime law contemplates that the seamen are to have a triple security for their wages, the owner, the master, and the ship itself, as a general right. Still, the master's liability is said to be founded in contract, and if it can be made to appear, by clear and satisfactory proof, that he has made no contract with the seamen express or implied, he will not be liable to them. Thus, if the former master dies, or is removed, the master who succeeds will only be liable to the seamen for the wages earned after his appointment, and not for the wages earned in the preceding part of the voyage. But the original hiring of the seamen by the owner, or by another master, is far from being evidence that no contract arises on the part of the master who is sought to be held liable. If he signs the articles, which the seamen may have previously signed, there is a clear case of contract; and his succession to the office of master during the voyage raises a presumption of contract for the residue of the voyage; and perhaps it might, under some circumstances, raise such a presumption for the whole voyage.5

2

6

The master is personally liable for his own negligences, non-feasances and mis-feasances. He is also liable for those of his officers and crew, though no personal fault or

1

Story's Comm. on Agency, sec. 299, p. 302. 2 Emerig. Des Assurances, ch. 4, sec. 12, p. 467. 1 Bell's Comm. sec. 435, p. 414; sec. 418, p. 398.

• Morse v. Slue, 1 Vent. 238; 1 Mod. R. 85. Schiefflin v. Harvey, 6 Johns. R. 170. Denison v. Seymour, 9 Wendell's R. 9.

negligence is imputable to him. The rigor of the law in this respect arises from reasons of public policy; and does not admit of any distinction whether the officers and crew are appointed by the master himself, or by the owner. But the master is not liable for the wilful trespasses of his crew, not done in the course of their duty, or by his commands.3

1 Morse v. Slue, 1 Vent. 238; 1 Mod. R. 85. Schiefflin v. Harvey, 6 Johns. R. 170, 176. Watkinson v. Laughton, 8 Ibid. 164. Foot v. Wiswall, 14 Ibid. 304. Purviance v. Angus, 1 Dall. 184. Abbot on Ship. part 2, part 3, ch. 3, sec. 3. Valin, Comm. tome i, p. 385; tome ii, p. 161, 162. Story on Agency, sec. 315, 319.

ch. 2, sec. 3;

2 Foot v. Wiswall, 14 Johns. R. 304. Denison v. Seymour, 9 Wendell's R. 8.

3 Bowcher v. Noidstrom, 1 Taunt. R. 568. Nor are the owners liable for the acts of the master beyond the authority confided in him. Reynolds v. Tappan, 15 Mass. R. 370. Dias v. The Owners of the Revenge, 3 Wash. R. 262.

CHAPTER II.

OF THE MASTER'S RELATION TO THE CARGO.

Two relations of the master of a merchant vessel to the cargo under his custody may exist at the same time. First, where he is to be viewed simply as master, without any other powers or duties, in ordinary circumstances, than those of safe custody and conveyance: second, where he is at the same time both master and consignee, or supercargo, with the powers and duties of the latter capacity superadded to those of the former.

But when the master is also appointed consignee of the cargo, his acts in relation to it are severally to be referred to the different capacities in which he is acting.' The general rule is, that during the voyage, his acts are to be referred to his capacity as master; but after the cargo has arrived at its destination, the master, if he be consignee, is to be considered as acting in that relation only. This rule has been clearly illustrated by the Su

1

n. 1.

2 Livermore on Agency, 215. Abbot on Shipping, part 2, ch. 4, sec. 1, 1 Bell's Com. p. 413. 3 Kent's Com. Lect. 46. The Vrow Judith, 1 Rob. Adm. R. 150. The St. Nicholas, 1 Wheaton's R. 417. Williams v. Nichols and Perry, 13 Wend. R. 58. Kendrick v. Delafield, 2 Caine's R. 67. Un. Ins. Co. v. Scott, 1 Johns. R. 106.

2 2 Livermore on Agency, 215. Williams v. Nichols and Perry, 13 Wend. R. 58. Un. Ins. Co. v. Scott, 1 Johns. R. 106. Earle v. Rowcroft, 8 East's R. 126.