CHAPTER II.

Question whether Possession of Ship has been given up to and taken by Charterers-Section 191 of Merchant Shipping Act, 1854-Whether Owners of Ship Chartered to Commissioners of Royal Navy as an Armed Vessel and Injury be done can maintain an Action-General Proposition of Law when a Person does not himself enter into Contract -Two Persons may not improperly be spoken of as the Owner of a Ship-Contract of Affreightment-Primary Duty of the Captain of a Vessel-Injury Happening to Ship Moored at Quay.

THE question whether the possession of the ship has or has not been given up to, and taken by, the charterers, must depend upon the terms of the instrument taken altogether, or upon the purpose and object of it (see also above).

The owner of a ship under a charter-party appointed G. B. to the command, and agreed that G. B. should be at liberty to receive on board a cargo of lawful goods (reserving 100 tons to be laden on account of the owner) and proceed with it to Calcutta, and there reload the ship with East India produce, and return with it to London, and upon her arrival there and discharge the intended voyage and service should end. The owner further agreed that a complement of thirty-five men should if possible be kept up, that he would supply the ship with 1As amended by Section 167 of the Merchant Shipping Act, 1894.

stores, and that she might be retained in the said service twelve months, or so much longer as was necessary to complete the voyage, in consideration of which G. B. agreed to take the command, and received the ship into his service for twelve months certain, and such longer time as might be necessary to complete the voyage, and pay to the owner for the use and hire of the ship after the rate of 25s. per ton per month, of which £1,000 was to be paid on the execution of the charter-party. It was also further agreed that G. B. should remit all freight bills for the homeward cargo to B. B. & Co. in London, who should hold them as joint trustees for the owner and G. B., that they should be applied to payment of the balance of freight due from G. B., and the surplus (if any) be handed over to him. It was then provided that the owner should have an agent on board, who was to have the sole management of the ship's stores and power to displace G. B. for breach of any covenant in the charter-party, and appoint another commander. C. & Co. in Calcutta, having knowledge of such charter-party, shipped goods on board the vessel for London, which were never delivered there. It was decided that they could not recover.

Section 191 of the Merchant Shipping Act, 1854,1 gives to the Admiralty Court jurisdiction to try claims for wages and disbursements brought by a master against his owners, and in order to enforce that jurisdiction the court has power to seize the ship of the owners. The questions in a modern case were (1) whether the master's wages were due to him from the owners, and 1 As amended by Section 167 of the Merchant Shipping Act, 1894.

(2) whether they (the owners) were bound to pay him for such disbursements, as it was necessary from the circumstances of the case that the captain should make on behalf of the owners, and which his position as captain would give him implied authority to make on their behalf. It was held that if he was not their captain he could not charge his wages against them, because it would be absurd to charge his wages against any person who did not employ him. He could not, merely as captain, enforce his claim to disbursements against the owners, unless it was in respect of disbursements which he, as their captain, had implied authority to make on the owners' behalf. If, therefore, he were the captain of the charterers. and not of the owners he was certainly entitled to sue them for his wages in the Admiralty Court, and if he was their captain he certainly was entitled by virtue of his position to make disbursements which were necessary for the navigation of the ship. At any rate he was at least entitled to make those disbursements against the owners which were not stipulated for in the charter-party, and which it was not known to him were to be paid by the charterers. Lord Esher (M.R.), however, expressed doubt whether the captain of a vessel was entitled to make disbursements on behalf of the owners which the charterers were bound to make unless he went first to the charterers or their agents and found that they absolutely refused to make them. However, where his position was that the charterers' agent at a foreign port had refused to make disbursements which they had undertaken to make, and the ship could not be navigated without those disbursements, in such a

case he may be entitled to charge such disbursements against the owners. Whether he is the captain of the owners must depend upon the charter-party. There was a stipulation in the charter-party by which in the event of the charterers being dissatisfied with the conduct of the master the owners were to make a full investigation into the matter. The charterparty in this particular case showed that although the captain was to be nominated by the charterers he was to be paid by the owners, to be subject to their orders as to navigation, and to be dismissed by them, if he was so dismissed at all. And it followed from this that he was the owners' captain. If, then, he was their captain, inasmuch as they were bound to maintain the ship in a manner fitted for service, any necessary disbursements made by him in order to preserve the vessel in that condition —and this, of course, includes the provision of a proper crew and the wages of seamen, or repairs to a ship in a foreign port-he (the captain) was bound to pay on behalf of his owners, and was, therefore, entitled to recover the disbursements from the owners.1

The question of the liability of the owners of a ship chartered to the Commissioners of the Navy as an armed vessel, which causes injury to another vessel by the misconduct of the persons on board the former while a Commander of the Navy and a Queen's Pilot are on board, may be answered by stating that an action for the injury may be sustained against the owners of the charter-party. But when vessels are hired by the

1See the Beeswing [1885], 5 Asp., 484.

Government, one of the terms on which they go is obedience to the orders of the officers in command; and under such circumstances, if an accident happens in obeying such an order from a Government officer, the fact constitutes a defence for the owner of the vessel by which the damage is done. This immunity does not depend upon martial law, but on the ground that persons acting under such orders cannot be said. to be guilty of negligence.

"It cannot be disputed as a general proposition of law that a person who does not himself enter into a contract can only be made liable upon the contract if it was entered into by one who was his agent or servant acting within the scope of his authority; and it is equally indisputable that a liability by reason of a wrong or a tort can only be established by proving either that the person charged himself committed the wrong, or that it was committed by his servants or his agents acting within the scope of their authority."1

There may be two persons at the same time in different senses not improperly spoken of as the owner of a ship. The person who has the absolute right to the ship, who is the registered owner, may, no doubt, be properly spoken of as the owner, but at the same time he may have so dealt with the vessel as to have given all the rights of ownership for a limited time to some other person, who during that time may equally properly be spoken of as the owner. When there is such a person, and that person appoints the master, officers and crew of the ship, pays them,

1 See per Lord Herschell (L.C.), in Baumwoll Manufactur von Carl Scheibler v. Furness [1893], Appeal Cases, at p. 16.