what is necessary on the charterer's part to carry out the contract, but not beyond, unless by express instructions (q).

Thus the captain is the agent of the owners in providing those necessaries for the voyage which by the terms of the charter are to be paid for by the owners, or necessaries for the ship's sailing where it is to the interest of the owners that the ship should sail (r); he is the agent of the charterers for providing those necessaries for the voyage which are by the charter to be paid for by the charterers, as coal (8)..

The duty of protecting the interests of the cargo owner may devolve upon the master, from his possession of the goods; in this case, if his action was necessary, and there was no possibility of communication with the cargo owner, the action of the master will bind the cargo owner (†), as in salvage agreements (u), sale (x), borrowing money on respondentia (y), transhipment (z), jettison (a), delay or deviation (b). The master is always the appointed agent for the ship; he is in special cases of necessity the involuntary agent for the cargo owner; but the foundation of his authority is the prospect (b) of benefit, direct or indirect, to the cargo owner. Thus he may sell part of the cargo to carry on the rest, but may not sell the whole cargo unless it cannot profitably be carried further. He may not repair the ship at the sole expense of the cargo without reasonable prospect of benefit to such cargo, and such

(q) The Turgot (1886), 11 P. D. 21; The Beeswing (1885), 53 L. T. 554. (r) Thus where the owners were to receive time freight, and the ship was detained through failure of the charterers to supply coal as per charter, it was held that the master had no authority to bind the owners by his orders for coal, as the owners gained nothing by expediting the sailing of the ship: The Turgot (1886), 11 P. D. 21. See also Citizen's Bank v. Wendelin (1886), 2 Times L. R. 240. ́(s) The Beeswing (1885), 53 L. T. 554. Morgan v. Castleyute S.S. Co. (1893), A. C.

(t) The Gratitudine (1801), 3 C. Rob. 240, and see Articles 96, 97, 98. (u) The Renpor (1883), 8 P. D. 115, and Article 121.

(x) See Australasian S. Nav. Co. v. Morse (1872), L. R. 4 P. C. 222, and Articles 102, 104.

(y) The Onward, L. R. 4 A. & E. 38 (1873); Kleinwort v. Cassa Marittima, 2 App. C. 156 (1877), and Articles 104-106.

(2) The Soblomsten (1866), L. R. 1 A. & E. 293, and Article 103. (a) Burton v. English (1883), 12 Q. B. D. 218, and Article 107.

(b) The fact that the cargo ultimately derives no benefit is immaterial, if there was a reasonable prospect of it; Benson v. Chapman (1848), 2 H. L. C. 696, at p. 720.

a prospect would not exist in the case of goods not injured by delay (c).

Article 96.—Master's Authority, whence derived.

The authority of the master in the absence of express instructions to deal with the ship and goods in a manner not consistent with the ordinary carrying out of the contract, as by selling the goods, throwing them overboard, or pledging them for advances of money, depends on two circumstances:

1. The necessity of the action: (Art. 97).

2. The impossibility of communicating with his principals, whether goods-owners or shipowners: (Art. 98).

Article 97.-Necessity.

Action will be necessary if it is apparently the best course for a prudent man to take in the interests of the adventure (d). The mere fact that the master acts in good faith is not sufficient (e).

Thus, if money can be obtained from the shipowner's or cargo owner's agent in the port, or raised on personal credit, the master will not be justified in binding the ship or cargo by a bottomry bond; but there will be necessity for such a course of action if the carriage of the cargo cannot be completed with profit to the cargo owner, without raising money on security of the cargo (f).

So, also, if damaged wool can either be sold as it is, or can be dried, repacked, and sent on, but at a cost to the owner clearly exceeding any possible value of it when so treated, the commercial necessity for the sale will arise; but if the goods can

(c) The Onward, v. s., at pp. 57, 58; see also per Brett, M.R., and Bowen, L.J., in the Pontida (1884), 9 P. D. at p. 180; The Gratitudine (1801), 3 C. Rob. at pp. 257, 261.

(d) The Onward, L. R. 4 A. & E. 38, at p. 58; Atlantic Insuance Co. v. Huth (1880), L. R. 16 Ch. D. 474, at p. 481. Cf. Phelps, James & Co. v. Hill (1891), 1 Q. B. 605.

(e) Tronson v. Dent (1853), 8 Moore P. C. at pp. 448, et seq.; but the owner may be liable for an erroneous, though bonâ fide, use of the master's discretion: Erbank v. Nutting (1849), 7 C. B. 797.

(f) The Onward, vide supra.

be carried on and delivered in a merchantable state, though damaged, the master will not be justified in selling (9).

Where such a necessity of dealing with the cargo arises, the captain in dealing with the cargo acts as the agent of the cargo owner (h); if no such necessity exists (i), or if the necessity arises from wrongful acts or omissions on the part of the shipowner (j), or if the captain professes to act for the shipowner (k) he will be treated as the agent of the shipowner (1).

Article 98.-Communication with Owners.

The master, before dealing with the cargo in a manner not contemplated in the contract, must, if possible (m), communicate with the owners of the cargo as to what should be done. For the master's authority to bind the cargo owners rests upon the fact that the circumstances require immediate action in the interests of the cargo, and nobody but the master can decide what shall be done in time to take such immediate action. If the cargo owners can be communicated with and can give directions in time, the necessity for the master's action does not arise (n).

The possibility of communication must be estimated by consideration of the facts rendering immediate action necessary, the distance of the master from the cargo owners, and his means of communicating with them, the cost and risk incidental to the delay resulting from the attempt to make such communication, and the probability of failure after every exertion should have been made (o).

(g) See note (x) ante, p. 194.

(h) Burton v. English (1883), 12 Q. B. D. 218.

(i) As in the case of improper jettison or sale.

() As in the case of jettison resulting from improper stowage on deck: Newall v. Royal Exchange S. Co. (1885), 33 W. R. 342, 868.

() As in cases of transhipment, in which the captain does not abandon the shipowner's voyage, and forward the goods in the interests of the cargo owner, but continues the voyage in another ship in the interests of the shipowner and to earn freight for him.

(1) Newall v. Royal Exchange S. Co., vide supra.

(m) Such communication is practically impossible in the cases of jettison and salvage agreements at sea.

(n) The Hamburg (1863), 2 Moore, P. C., N. S. at p. 323, explaining The Bonaparte (1853), 8 Moore, P. C. 459. For the German law, see The August (1891), P. 328.

(0) The Karnak (1869), L. R. 2 P. C, at p. 513; The Onward (1873), L. R. 4 A. & E. 38.

The necessity for communication with cargo owners will be much lessened in cases where the action of the master primarily affects the ship, as in repairs of the ship, or deviations by necessity, causing delay, or where, the ship being a general one, there are many owners of cargo (00).

Such communication need only be made where an answer can be obtained from the cargo owners, or there is reasonable expectation that it can be obtained, before it becomes necessary to take action. If there are reasonable grounds for such an expectation, the master should use every means in his power to obtain such an answer. He is bound to employ the telegraph where it can be usefully employed, but the state and management of the particular telegraph, and the probability of correct transmission of messages by it are all to be considered (p).

The information furnished must be full, and must include a statement of any measures, such as sale, raising money on bottomry, &c., which the master proposes to take (q).

If the master communicates and receives instructions, he is bound to follow them, if consistent with his duty to the shipowner; if he communicates and receives no instruction he may take such action as appears necessary (r); if he can communicate and does not do so, he cannot justifiably take any action on behalf of the cargo owners (s).

Case 1.-A vessel belonging to Hamburg, during her voyage from South America to London with a cargo belonging to English owners, but not perishable, put into St. Thomas to repair. Mails left St. Thomas for London every fortnight, taking fourteen days on the journey. The master made no attempt to communicate with the consignees, but three months after arrival gave a bottomry bond on ship, freight and cargo for the cost of repairs. Held, that the bond was invalid against the cargo owners, as the master had not consulted them, though he had reasonable opportunities of so doing (8).

Case 2.-A timber-laden vessel bound to England put into the Mauritius

(00) Phelps, James & Co. v. Hill (1891), 1 Q. B. 605. If this case lays down that it is never necessary to communicate with cargo owners where steps are to be taken affecting their cargo, and inconsistent with the contract, it is submitted it goes too far. The authorities on this article do not seem to have been cited to the Court.

(p) Australasian S. Navigation Co. v. Morse (1872), L. R. 4 P. C. 222. (1) The Onward, v. s.; Kleinwort v. Cassa Marittima (1877), 2 App. C. 156. (r) The Karnak (1869), L. R. 2 P. C. 505.

(s) The Hamburg (1863), 2 Moore, P. C., N. S., 289.

for repairs on June 11. The master placed the ship in the hands of Messrs. B., who, without attempting to raise money on the personal credit of the shipowners, proposed a bottomry bond on ship, freight and cargo. On July 29, the master communicated this proposal to shipowners, and communicated the need of repairs, but not the bottomry, to the cargo owners, who did not hear of the proposal till September 8, too late to prevent the proposal being carried into effect. Held, the bond was invalid against the cargo, both because there was no necessity for it, the cargo not being a perishable one, and because the master had failed to communicate with the cargo owners (t).

Case 3.-Wool was shipped from X. to Z., forty-five miles from X. The ship was wrecked, the cargo transhipped and brought back to X. It was there found damaged by transhipment, dirty and wet, and it began to heat. Lloyd's agent, on Saturday, December 23, advised an immediate sale, which was fixed for Tuesday, December 26. There were twenty-three owners of the wool, most of them at Z., 900 miles from X.; no letter could reach them in time; there was a telegraph, but owing to the intervention of Sunday and Christmas Day, and the mercantile habits of Z., the jury found communication by telegraph impossible. Held, a case was made out entitling the master to sell (u).

Case 4.-Tin plates were shipped from Swansea to New York; after leaving Swansea, the ship was forced by bad weather to put into Queenstown, ship and cargo being damaged. There were sixty cargo owners. The master communicated with the shipowner, but not with the cargo owners, and received instruction to proceed to Bristol to repair. On reaching Bristol, she was sunk in a collision. Held, that the fact that the master put back without communicating with the cargo owners did not in itself render the shipowner liable for the deviation (uu).

Article 99.-Master's duty to proceed without deviation.

In the absence of express stipulation the owner of a vessel, whether a general ship or chartered for a special voyage, impliedly undertakes to proceed in that ship (v) without unnecessary (vv) deviation in the usual and customary manner (w).

Deviation necessary to save life will be allowed to the shipowner; deviation only necessary to save the property of others will not be allowed (a).

(t) The Onward (1873), L. R. 4 A. & E. 38.

(u) Australasian Steam Navigation Co. v. Morse (1872), L. R. 4 P. C. 222. (uu) Phelps, James & Co. v. Hill (1891), 1 Q. B. 607.

(v) Balian v. Joly Victoria (1890), 6 T. L. R. 345 (C.A.). (vv) See post, Article 100.

See note (oo), ante.

(w) Leduc v. Ward (1888), 20 Q. B. D. 475; Davis v. Garrett (1830), 6 Bing. 716; Scaramanga v. Stamp (1880), 5 C. P. D. 295 (C.A.). See also Max v. Roberts (1810), 12 East. 89; Ellis v. Turner (1800), 8 T. R. 531. On the implied undertakings in the contract of affreightment, see Articles 28-30.

(x) Scaramanga v. Stump, vide supra.

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