Pentz v. Clarke , 1875 Md. LEXIS 50 ( 1875 )

Robinson, J.,

delivered the opinion of the Court.

This suit was brought against the appellant, part-owner of the steamer “Massachusetts,” for work done and materials furnished by the appellees, in repairing said steamer, in the city of Baltimore, the home port, where the appellant resided.

The evidence shows the repairs were necessary, and that they were done upon the order of the captain, who was also at the time part-owner of the steamer, but without any authority from the appellant. The main question presented by the record is, whether the captain had the authority under such circumstances, to pledge the credit of the appellant for the repairs thus ordered? It is a question of importance to the commercial interests, and it is to be regretted, that the decisions in this country are so conflicting. Without examining at length, the many cases in which this question has been considered, it is sufficient to say, that in some States it has been held, that the relation of master and owner, per se, confers upon-the former, authority to bind the latter for necessary repairs, either in a foreign port, or in the home port where the owner resides. Glading vs. George, 3 Grant’s Cases, 290; Winsor vs. Maddock, 64 Penn., 231; McCready vs. Thorne, 49 Barbour, 438; Provost vs. Patchin, 5 Selden, 235.

In other States this authority has been limited to a foreign port, or to the home port where the owner did not reside, and was not within easy access of the master. Jordan vs. Young, 37 Maine, 276; Elder vs. Larrabee,45 Maine, 594; Woodruff vs. Stetson, 31 Conn., 61; Fox vs. Holt, 36 Conn., 571; Taylor vs. Steamer Commonwealth, U. S. District, Missouri, Int. Rev. Rec., Aug. 31, 1874; Parsons' Mar. Law, 380-383, note.

In England, whatever may have been the rule laid down by the earlier cases, all the later decisions hold, that no such authority arises from the relation of master and owner, per se; and that in order to bind the owner for necessary repairs done at the home port, the master must have special authority for that purpose; or the owner must have held out the master as having such authority ; or he must have ratified the contract after it was made.

In Arthur vs. Barton, 6 Mees. & Wels., 142, Lord Abinger, C. B., said:

“Under the general authority which the master of a ship has, he may make contracts, and do all things necessary for the due and proper prosecution of the voyage in which the ship is engaged. But this authority does not usually extend to cases where the owner can himself personally interfere, as in the home.port, or in a port in which he has beforehand appointed an agent, who can personally interfere to do the thing required. Therefore, if the owner, or his general agent, be at the port, or so near to it as to be reasonably expected to interfere personally, the master cannot, unless specially authorized, or unless there be some usual custom of trade warranting it, pledge the owner's credit at all, but must leave it to him, or to his agent, to do what is necessary.”

The rule thus laid down was fully approved and sanctioned by the Court of Common Pleas, in Gunn vs. Roberts, 9 Com. Pleas, 331, (Law Rep.,) in which it was held, that the .master had no authority to bind the owner for necessary repairs, either at the home port where he resided, or at a foreign port at which the owner had an agent appointed for that purpose. In that case, as in this, it was contended that the captain was the general agent of the owner, but, Brett, J., said, “That proposition cannot be supported in the fullest sense of the terms in which it was stated. The captain has authority to bind the owners to pay for supplies, or repay money advanced, only when the necessity of the case gives him that authority. In order to give rise to that authority, it has for many years been recognized that two things are necessary; first, it must appear that the money borrowed or goods supplied, were necessary for the use of the ship ; secondly, it must be shown, also that it was reasonably necessary that the captain should obtain or order them on the owner’s credit. If the captain be in a foreign port, and the owner is not, there, and there is no agent of his there, and the captain has not himself been put in funds by the owner, then it may be reasonably necessary that he should order supplies on the owner’s credit for the necessary purposes of the ship, but if he is in port in the owner’s country, and the owner is there with means to pay for goods, or credit to order them for himself, the owner is the master of affairs, and there is no necessity for the captain to order them, or to pledge the owner’s credit, and so there is no necessity for the captain’s making a contract to bind the owner.”

“ The leading case on the subject is Arthur vs. Barton, and the opinion there expressed by Lord Abinuer, as a summary of all the previous authorities, has always been held as a correct expression of the law.”

The Justice further says : “ McLachlan, in his work on Merchant Shipping, 131, correct1 y states the law as ■follows:

“As appears from those early cases, but especially the last, there are well defined limits to the exercise of this authority on the part of the master. First, in cases where the owner or his agent is at the port of the ship’s anchorage, or so near to it as to be reasonably expected to interfere personally, the master cannot, without special authority for the purpose, pledge the owner’s credit for the ship’s necessities.”

We have quoted at length from the opinion of the Court in this case, because it is the latest decision in England, and states correctly, we think, the law on the subject. Aftqr all, this question as to the authority of the captain to pledge the credit of the owner for necessary repairs and supplies, rests upon and must be determined by the general principles which govern the law of agency. To a certain extent at least, the captain is and must be treated necessarily as the agent of the owner, and as such, clothed with authority to do whatever may be considered fairly to be within the scope of his appointment. He must of course have the power to do whatever may be necessary to enable him to prosecute the voyage. If he should be in a foreign port and repairs are necessary to be done, and the owner is not there, and has no agent there authorized to act for him, the captain must, from the necessity of his position, be considered as having the authority to order such repairs to be done. But in the home port, where the owner resides, where he can be consulted and where he can personally interfere, no such necessity exists, and there is no reason why the captain should pledge his credit even for necessary repairs, without special authority for that purpose.

If then, the captain, as such, had no authority in this case to pledge the credit of the appellant for the work done and materials furnished, does the fact that he was part-owner at the time, confer upon him any greater authority ? This question as well as the question in regard to the power of the captain, depends upon the fact as to whether he was authorized by his co-owner to pledge the credit of the latter. In other words, it depends upon the question of agency. In Brodie vs. Howard, 84 Eng. Com. Law, 109, Jervis, C. J., says:

“ I think it is now perfectly well understood that these and all similar cases depend upon the question, with whom was the contract made; and that again depends upon the question of principal and agent, — was the party who gave the order for the repairs the agent of the party sought to he charged? Before we consider that, it may he as well to understand what is the position of ‘part-owners ! of a vessel. They may be partners generally, or partners in a particular adventure; but that they are not necessarily partners is clearly determined by the case of Helme vs. Smith, 7 Bing., 709. A part owner, therefore, has not a general authority to bind his co-owners.”

Williams, J.

I am of the same opinion. It is well established that part-owners of a ship are not in the position of ordinary partners.”

But although the mere relation of co-owners does not confer this authority, yet it may be implied from the acts and conduct of the parties. As for instance, where the co-owner upon whose order the materials have been furnished and the work done, has been held out by the other co-owner as having such authority, or where by previous dealings, such authority has been recognized.

From what we have said, it follows, that the Court erred in granting the plaintiffs’ prayers. We find no error in the refusal to grant the defendant’s prayers. Although the captain in this case had no express authority from the appellant to order these repairs, yet if the latter subsequently ratified the contract thus made, the plaintiffs were entitled to recover. As the case will be remanded for a new trial, we do not propose to comment upon the evidence tending to prove such ratification on the part of the appellant. It is sufficient to say there was evidence on this subject, which ought to have been submitted to the jury.

The proposition of law embraced in the third prayer may be correct in itself, but has no application to the facts in this case. The question here is not whether White was the captain of the appellant, a registered part-owner, or the captain of an owner pro hac vice, or the captain of a charter party, and this prayer which is based upon the decision in Mitcheson vs. Oliver, 85 Eng. Com. Law, 419, has no application here.

(Decided 15th January, 1875.)

The fourth, fifth and sixth prayers were also properly refused. The defendant was the registered owner of one-half of this steamer, and by his solemn deed of mortgage executed more than two years after the registration, he again declared himself as part-owner. So far then as these plaintiffs are concerned he must be considered as part-owner, regardless of any private understanding between himself and his brother to the contrary. Having thus held himself out to the public as part-owner, if he permitted, or suffered White to assume, and remain in, charge of the steamer as captain, the latter must be treated in a suit by third jiarties, as the captain in charge, by and with the privity and consent of the appellant. And although as captain he had no authority to pledge the credit of the appellant for the work done and materials furnished by the appellees, yet he will be held liable, if by his acts and conduct he has ratified the contract thus made by the captain.

What will amount to a ratification, must depend upon the facts and circumstances of the particular case. In speaking of the ratification of unauthorized acts of agents this Court in Maddox vs. Bevan, et al., 39 Md., 491, said:

“ In many cases it may be inferred from his receiving and holding the fruits of the contract. Long acquiescence also, without objection, and even silence o£ th'e:: principal, will, in many cases, amount to a conclusive presumption of the ratification of an unauthorized act,:'especially where such acquiescence is not otherwise to be accounted for, or such silence is either contrary to the duty of the principal or has a tendency to mislead the agent.”

Judgment reversed, and new trial aioarded.