6. The general rule before laid down, viz. That the owners are bound by every lawful contract made by the master relative to the usual employment of the ship, is proved, as to the case of a general ship, by the following judicial authorities.

In the case of Boson v. Sandford & others (0), which was an action brought against some of the [119] part-owners of a ship employed in the coasting trade between Exeter and London, to recover the value of goods lost, which had been delivered to the master at Exeter without the knowledge of the owners, to be conveyed from thence to London; the Court held that the owners were answerable for a loss under such circumstances, but decided the case against the plaintiff, because the action was brought against some only, and not against all the part-owners.

In the case of Boucher v. Lawson (p), which was an action brought against the owner to recover the value of Portugal coin delivered to the master at Lisbon, to be conveyed to London, and of which by the usage of that particular trade the master was to receive the freight to his own use, and which the master had embezzled; the Court held that, if it had appeared that the ship was employed in carrying goods for hire, the owner would have been answerable for this loss; for although the exportation of coin was prohibited by the laws of Portugal, yet the importation of it into this country was allowed by our laws, and so the trade was lawful here; and it was of no consequence, whether the master was

(6) Boson v. Sandford & others, Carth. 58. 3 Lev. 258. 3 Mod. 321. 1 Show. 29. 101.

Note. It would now be held, that as the defendants had not pleaded in apatement, they could

not avail themselves of the ground, upon which this case was decided against the plaintiff. See part 1. eh. 3. sect. 13.

(p) Rep. temp. Hardwicke, p. 85,

194.

rewarded for his services by wages paid by the owner, or by receiving part of the earnings of the ship: but as it did not appear that the ship was employed in carry

ing goods for hire, but for any thing that appear[120] ed in the case, the ship might have been sent to Lisbon for a special purpose, and if so (as the Chief Justice said) no man could say that the master, by taking in goods of his own head, could make the owners liable; it was decided that the plaintiff should

The facts of the case of Ellis v. Turner & another (9), which was an action brought against the owners for the value of goods damaged by the sinking of their vessel, were as follows. The vessel was employed in: carrying goods from Hull to Stockwith, and to Gainsborough, which is a little farther than Stockwith, but the freight was the same for conveyance to either place. On former voyages the goods destined to Stockwith had sometimes been delivered there on the way to Gainsborough, and at other times carried forward to Gainsborough, and delivered at Stockwith, on the return to Hull. The goods in question were delivered to the master on his express undertaking to deliver them at Stockwith on his way to Gainsborough. This particular undertaking was made by the master without the privity of the defendants, but he had a general authority from them to receive and convey goods for the customary freight from Hull to Stockwith and Gainsborough. The defendants had previously given public notice, with which the plaintiff's agent, who shipped the goods, was acquainted, that they would not be answerable for any

(2) 8 Ter. Rep. in K. B. p. 531.

loss or damage that might happen to any cargo, unless occasioned by the want of ordinary care [121] and diligence in the master and crew, in which.

case they would pay ten per cent. upon the loss, provided such payment did not exceed the value of the vessel, but that they were willing to insure against all accidents upon receiving extra-freight in proportion to the value. No agreement had been made for the payment of extrafreight for the goods in question. The vessel took in other goods to be delivered at Stockwith in the present voyage, and arrived safely at that place. The master. delivered some of the other goods there, and was requested by the wharfinger to deliver all, that were destined for that place, but without the knowledge of the defendants refused to deliver the others, alleging that they were stowed below the goods destined to Gainsborough. On the way from Stockwith to Gainsborough the vessel sunk, without any want of ordinary care in the master or crew, and the goods in question were damaged. The Court held that the plaintiff should recover the amount of his loss. And Lord Kenyon said, "As the vessel reached Stockwith in safety, and might "have delivered the goods there, I think this action

may be maintained. For though the loss happened in 66 consequence of the misconduct of the defendants' ser"vant, the superiors (the defendants) are answerable for "it in this action. The defendants are responsible for "the acts of their servant in those things, that respect "his duty under them, though they are not [122] "answerable for his conduct in those things,

"that do not respect his duty to them; as if he "were to commit an assault upon a third person in the course of his voyage."

courge

7. It may be observed, that in each of the above cases the contract, upon which the action was brought, was made by the master without the particular knowledge of the owners. In the first, it was made in the course of the usual employment of the vessel, and therefore the Court held the owners to be bound to the performance as a general rule, although they thought the particular suit improperly brought. In the second, the contract was not made, or at least did not appear to have been made, in the course of the usual employment of the ship, and therefore the owner was not bound by it. In the last, the contract was made in the course of the usual employment of the ship, and therefore it was considered to be a contract made in substance by the owners.

8. From the decision of the last of the above cases, it seems also to follow, that if the master make a particular engagement or warranty, relating to the conveyance of merchandize according to the usual employment of the ship, the owners will be bound by such engagement or warranty, although made without their knowledge. And the law was so laid down by Lord Kenyon, in his direction to a jury upon the trial of an action (r) brought by a merchant against the owners of a ship on a warranty, that the ship should sail with con- [123] voy from the place of rendezvous, which had not been complied with. A broker in London had been employed by the master to advertise the ship as a general ship, bound to Hamburgh; and in the printed papers the broker had inserted a clause purporting that the ship was to sail with convoy from the place of rendezvous. There was no evidence given either of the assent, or dissent, of the defendants (the owners) to this war

(r) Rinquist v. Ditchell, Guildhall Sit. p. Mich. Ter. 40 Geo. 3.

ranty, or of their knowledge of it. But there was contradictory evidence upon a question made at the trial, whether the master had forbidden the broker to insert this clause. His Lordship however told the Jury that he thought that point quite immaterial, for as the broker was authorized to advertise the ship, the owners were answerable to strangers for his acts, although he had exceeded his authority; and must seek their remedy against him. And the plaintiff succeeded in the cause.

9. From this rule of law, by which the owners are bound to the performance of these contracts, it follows as a corollary, that they must answer for a breach of them, although committed by the master or mariners against their will, and without their personal fault.

10. The great responsibility, which the laws of commercial nations cast upon the owners for the acts of the master in this and other cases, has appeared to many

persons, at first view, to be a great hardship; [124] but laying aside all consideration of the oppor

tunities of fraud and collusion, which would otherwise be afforded, it should always be remembered, that the master is elected and appointed by the owners; and by their appointment of him to a place of trust and confidence, they hold him forth to the public as a person worthy of trust and confidence; and if the merchants, whom he deceives, could not have redress against those who appointed him, they would often have just reason to complain, that they had sustained an irreparable injury through the negligence or mistake of the owners; as the master is seldom of ability to make good a loss of any considerable amount.