Urann v. Fletcher , 67 Mass. 125 ( 1854 )

Shaw, C. J.

This suit is brought for a very small amount; but it depends on a very important principle, though one which we think very well settled. We assume that the casks were ordered by the master, because it is so argued on both sides, though it may be well doubted whether the plaintiff’s entry in his account book is competent evidence of that fact. The defendant was the general owner of the barque; but at the time the casks were ordered and furnished, she was chartered to the master himself and one Chase, for a voyage described, at a fixed rate in money per month; the owner to have the vessel and her appurtenances in good condition, and to keep the vessel tight, staunch and strong, during the voyage; the charterers to victual and man the vessel, and pay all port charges and pilotages.

The simple question in the present case is this; on whose credit did the plaintiff furnish these articles? The plaintiff’s counsel cited Rich v. Coe, Cowp. 636, to show that he who supplies a vessel with necessaries has not only the security of the master and owners, but also of the specific ship. This case has been greatly modified and limited in its generality by subsequent cases. Westerdell v. Dale, 7 T. R. 312. Abbott on Ship. 143. It is now well settled, that one who has supplied materials or necessaries for a vessel, in a home port, has no lien on the vessel therefor. Ex parte Bland, 2 Rose, 91. The General Smith, 4 Wheat. 438.

But there being here no question of lien, we are to look at the other question, to see who, under given circumstances, is personally liable. The case of Rich v. Coe says the owner. But as explained and stated in subsequent cases, this does not mean the general owner, absolutely and under all circumstances; but the owner for the voyage, the person on whose account, for whose benefit, and by whom, she is. employed and navigated for the time being. In general, a master carries with him the implied authority of the owner to procure repairs, supplies and necessaries, for the vessel, because he is the agent of the owner, appointed and paid by him, managing and conducting the vessel under his orders and for his benefit. This brings the case within the usual, well known, common law doctrine of agency. Where an authorized agent orders goods for his principal, the principal becomes bound; the goods are sold on his credit. But where the vessel is let out by the general owner to others, and the possession, management and control are surrendered to them, for a term of time or for a particular voyage or enterprise, they to victual and man the vessel, (and manning implies the engagement and employment of master, officers and seamen,) then the relation of agent and principal does not subsist between the actual master and the general owner; and if the master orders supplies and necessaries, it is not done by the implied authority, and of course not on the credit, of the general owner. There may be difficulties, under particular circumstances, in determining whether the charter, lease or temporary transfer is of such a character, as to divest the general owner of the possession and management, and vest them in the charterer or lessee, so as to make the latter owner for the voyage, against the first and general presumption, that the general owner is owner for the voyage. The ownership of the vessel may be prima facie evidence that the master is his agent; but it is nothing more, and may be controlled by evidence that the master giving the order is in fact agent for others, or acting in his own right. Young v. Brander, 8 East, 10. Frazer v. Marsh, 13 East, 238. Briggs v. Wilkinson, 7 B. & C. 30. This point has been established .by many English eases; we will cite but one more. It was the case of a suit for repairs on a steam vessel, ordered by the master, the vessel having been let by the registered owners, for a term of time, the general owners having contracted to keep the engine in repair, and the engineers to be appointed by them, the charterer himself acting as master. The contract being made by the master, for repairs, other than those of the engine, it was held that the owners were not answerable. Reeve v. Davis, 1 Ad. & El. 312. The same rule has been repeatedly declared in this country. Leonard v. Huntington, 15 Johns. 298. Thorn v. Hicks, 7 Cow. 697. Hussey v. Allen, 6 Mass. 163. Reynolds v. Toppan, 15 Mass. 370. Taggard v. Loring, 1 Mass. 336.

Without pursuing the general inquiry further, it is only necee sary to look at the charter party in this case, to ascertain whether the charterers had become owners for the voyage. We think all the circumstances concur, which are relied on as tests, to show that this charter was a complete transfer of the possession and control of the vessel for the time being. The entire vessel was let to the charterers, for a particular voyage, at a pecuniary rent per month. The charterers were to victual and man the vessel, and therefore to appoint the master and officers and engage the crew; these were all employed and paid by them, were in their service, and subject to their orders. One of the charterers was himself master, and actually ordered the articles from the plaintiff.

Two circumstances are relied upon by the plaintiff, to take the case out of the rule. One is, that the entire vessel was not let, but a portion of the capacity of the vessel was reserved and excepted as “ necessary room, for the accommodation of the crew, and the stowage of the sails, cables and provisions.” This extract is from the printed part of a form of charter party, manifestly adapted to another species of contract of charter, where the owners are to victual and man the vessel. This circumstance, however, affords no reason why this clause should not form part of the instrument, as if the words were written; and it is mentioned only to account for its being in the instrument. But the clause, though in form an exception, is in legal effect inoperative. The charterers are to victual and man the vessel, and of course must take room enough for provisions, and for the accommodation of the crew. So they are to navigate the vessel at then own expense, and the reservation of room for sails and cables is for their own use. The whole vessel therefore was placed at the disposal of the charterers, and the owner reserved nothing for himself.

The other consideration relied on by the plaintiff is, that the defendant covenanted with the charterers that, during the voyage, the vessel should be tight, staunch and strong, and sufficiently tackled and apparelled with all things necessary for such a vessel' and voyage ; and that water casks were a part of her necessary apparel. But the answer is, this was a mere executory contract between other parties, of which the plaintiff could not avail himself; the paper contained no authority to the master to procure articles even of necessity, on the credit of the owner, and the relation of the parties carried no such implied authority. The effect of such a stipulation on the part of the owner was, that if the charterers, in the course of the voyage, should be obliged to make necessary repairs, and obtain supplies for the vessel, they would be enabled by this covenant to hold the owner to reimburse them, by way of set-off or otherwise.

The court are therefore of opinion, that the defendant wav not owner for the voyage, the master was not his agent, and the directions of the court of common pleas were right.

Exceptions overruled.