Duncan v. Reed , 39 Me. 415 ( 1855 )

Rice, J.

— The facts reported in this case are very meager. It is presented upon the auditor’s alternative report, without any statement of the evidence bearing upon the controverted items in the account. We are thus left to infer the facts from the general character of the business between the parties, and the nature of the items in controversy, rather than from any direct proofs in the case.

There are certain general principles applicable to cases similar to the one before us which will aid in solving, satisfactorily, most of the questions presented.

It scorns that the brig Mechanic, of which the plaintiffs were owners, and the defendant master, on a voyage from Now York to Chagres, was stranded at the latter port, and lost, before the delivery of her cargo, and that the wreck was sold, and the whole business closed up, at that place, December 11, 1850, and the proceeds of the property sold, brought by the master to New York, for the benefit of tho owners.

While at Chagres, and on Ms passage to New York, the captain was sick and incurred, and paid, physicians’ bills to the amount of fourteen dollars. The plaintiffs object to the allowance of those items.

The expenses of curing a sick seaman, in the course of a voyage, is a charge on the ship, by the maritime law; and in this charge are included not only medicino and medical advice, but nursing, diet and lodging, if the seaman bo carried ashore. Hamden v. Gordon & al., 2 Mason, 541.

The Act of Congress of 1700, c. 29, § 8, providing that there shall be kept on board of every ship or vessel of a certain specified tonnage, a chest of medicines, &c., docs not -apply to cases where seamen are removed on shore, and aro deprived of the benefits secured by the Act. Ibid,. The same rulo has been held to apply in case of tho sickness of the master, as of seamen. The brig George, 1 Sum. 151.

In this case, the ship having been stranded and lost, the master must of necessity, have subsisted on shore, and tho legitimate inference is, that he could not avail himself of the benefits of the medicine chest.

Tho powers and duties of shipmasters, especially when in foreign ports, and in cases of disaster, either from tho dangers of the sea, or public enemies, are very extensive. They are then the general agents of the owners, so far as respects acts necessary to the successful prosecution of their voyage. Their authority extends to tho hypothecation of tho ship, for necessary repairs, or in case of severe disaster and urgent necessity, to the sale of the ship itself. Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 249 ; Hall v. Frank. Ins. Co., 3 Pick. 466; The Sarah Ann, 3 Sum. 206.

He must faithfully discharge every duty incumbeut upon, him, and render a satisfactory account of all his transactions, that he should receive a stipulated sum as wages, and be secured in all his advances that do not exceed the value of the vessel, or the authority of the owner. Jacobsen’s Sea Laws, by Frick, B. 2, c. 1, p. 87.

• In case of capture, it is the imperative duty of the master to remain by the ship until a condemnation, and all hope of recovery is gone. He is intrusted with the authority and obligation to interpose a claim for the property, and to endeavor by all the means in his power, to make a just and successful defence. To abandon the ship to her fate, without asserting any claim, would be criminal neglect of duty, and subject him to heavy damages for a wanton sacrifice of the property. As the law compels him to remain by the ship, and attaches him in some sort to her fate, he is entitled to receive compensation for his services and incidental expenses, and this compensation is a charge to be borne, in the first instance, by the owner of the ship, and ultimately as a general average, by all parties in interest. Wilson & ux. v. Dorr, 3 Mass. 161.

The principles of the above rule are equally applicable in cases of loss by the dangers of the sea. The master must abide by the ship to the last, and save her if practicable, and if not, so dispose of the wreck as that the owners may realize the most that can be saved therefrom. His duty ■therefore, in case of disaster, does not close until the ship is in a place of safety, and the voyage ended, or in case of loss, until the proceeds which may be saved, are placed at the disposal of the owners.

But these duties carry with them corresponding rights, and among them is the right to reasonable compensation for services rendered, and incidental expenses incurred while thus in the service of the owners. These rights and duties enter into, and form a part of every contract between master and owners.

In the case at bar, the services of the master do not seem to have terminated until he arrived in New York, and delivered the proceeds received from the sale of the wreck of the brig. To that point of time we think he was fairly entitled to remuneration for his necessary incidental expenses in the prosecution of the business of .the owners, in the charge of their property. In these expenses the items charged for physicians’ bills, board, and the amount paid for his passage are properly included. The owners surely are not in a position in equity and good conscience to resist the allowance of those items which have been included in the general average, and of which they have therefore received the benefit, as is the case of the charge for his passage to New York.

As to the charge for deficiency in the amount of money brought home by him, we do not perceive any authority for making these charges against the owners. As we understand the case, he himself presented the 'evidence of the amount he had received in Cliagres, and if it did not hold out on a recount, it is his misfortune, or his fault; and for that deficiency he must look to the parties with whom he transacted the business. At all events he cannot properly charge the owners therewith until he presents some evidence that the loss was not occasioned by any fault on his part.

Correcting the account of the auditor according to the above principles, there will be found a balance due the plaintiffs of nineteen dollars and ninety-five cents, with interest thereon from the date of their writ, and for that sum they are to have judgment.

COUNTY OF LINCOLN.