Lemont v. Lord , 52 Me. 365 ( 1864 )

The opinion of the Court was drawn by

Kent, J.

The plaintiffs claim to recover of the defendants, in an action of assumpsit, on an account annexed and with the usual money counts, for the carriage of coal from the Mauritius to Rangoon.

The case comes before us on an agreed statement of facts. The plaintiffs are the owners of the barque Alfred Lemont; the defendants were the owners of the ship Waban ; both American vessels. The "Waban” having on board a cargo of coal, which had been laden in pursuance of the terms of a charter party, entered into at London, sailed on her voyage from Cardiff to Rangoon, where the coal was to be delivered to consignees named, at a freight of £2 per ton.

On the voyage, the ship met with disasters by the perils of the seas, and was so much injured before putting into Port Louis, or Mauritius, as to be wholly disabled from resuming and completing the voyage to Rangoon, and, upon survey, she was condemned. A part of the cargo had been jettisoned at sea, a part sold by the master at Port Louis for payment of his expenses, and the remainder, about 850 tons, had been put on-shore. In this state of affairs, the plaintiffs’ barque, the Lemont, arrived at the same port, and the master of the Waban stated to the master of the Lemont what the condition of his vessel was, and that he had discharged his cargo, and that perhaps he should want the Lemont to carry the coal to Rangoon; to which the master of the Lemont replied, expressing his readiness to take it, if terms could be agreed upon. Two days afterwards, after public notice calling for proposals, the master of the Lemont put in proposals, and his offer, being the lowest, was accepted. The rate of freight agreed upon was £2, 5 shillings ; being five shillings per ton more than the rate on the original shipment for the whole voyage. The coal was taken on board and a bill of lading was signed by the master, which states that there had been "shipped, in good order and well conditioned, by S. A. Hartridge, master of ship Waban, in and upon the Alfred Lemont, 850 tons of coal; to be delivered, (perils of seas excepted,) to the same consignees named in the original charter party and bill of lading given by the Waban, at the same port of Rangoon. " Freight for said goods to be paid in cash on right delivery of the cargo, two pounds five shillings.” The Lemont arrived safely at Rangoon. The consignees refused to receive the coal. Thereupon the master of the Lemont, after proper proceedings, caused the coal to be sold at auction. The proceeds of the sale were not sufficient to pay the stipulated freight of two pounds five shillings.

This action is brought by the owners of the Lemont against the owners of the first ship, the Waban, to recover the balance of the freight, for conveying the coal from Port Louis to Rangoon.

The plaintiffs claim to maintain this action, on the ground that the defendants were the shippers of the goods on board the Lemont. There is nothing in the language of the bill of lading, signed by the master of the Lemont, which declares in terms by whom the freight was to be paid. It does not contain the condition, usually found in such bills of lading, after the designation of the consignees, " he or they paying freight for the same.” But it has been determined that the shipper named in the bill of lading is liable primarily for the freight, although he does not own the goods, and although there is no express stipulation on the part of the shipper to pay freight. His liability results from having engaged the ship owner to take on board and carry the goods at his instance. Blanchard v. Page, 8 Gray, 290; Worster v. Tarr, 8 Allen, 270. If, therefore, the defendants were the actual shippers, by themselves or their legally authorized agent, they may be held to pay the stipulated freight.

Were they such shippers?

The goods, as declared in the bill of lading, were " shipped by Hartridge, master of the Waban.” The contract was clearly made by him. The case finds that Hartridge " acquainted the master of the Lemont with the condition of his vessel,” and informed him that he had landed his cargo. The master of the Lemont then knew that he was acting with the master of a vessel, which had in effect perished by the perils of the sea, and could not be repaired. There is no evidence, beyond these facts, that the master contracted for the carriage of these goods in the name or on behalf of the owners of the ship. Nothing appears to have been said or understood, between the two masters, as to the capacity in which he acted, whether as agent for the owners of the cargo or of the ship. He put the coal on board at a freight stipulated. The plaintiffs contend that the law fixes the liability of the defendants, from the fact that the master of the disabled vessel thus placed the goods on board, and that he must be held as rightfully representing them in the transaction as their agent.

What, then, are the rights, duties and obligations of the owners of a vessel, which has, by the perils of the sea, become totally disabled from resuming and completing the original voyage, as to the transhipment and forwarding of the cargo to the. port of destination ?

It is not contended that the Waban could have been repaired within a reasonable time, or at a reasonable expense. She was a vessel lost by the perils of the sea.

The first question is, whether the law requires that the owners of the vessel, by virtue'of the charter party or bill of lading, should, under all circumstances, forward the cargo in such case, as part of their original undertaking. This, clearly, is not according to the terms of the charter party, nor does it result from the nature of such maritime contract. The agreement is to take on board the vessel named, the goods, and to carry and deliver the same at the port of discharge, — "the perils, dangers and accidents of the seas, rivers and navigation, during the voyage, always mutually excepted.” The perils of the seas, did, in this case, prevent the prosecution of the voyage.

Emerigon, c. 12, § 16, says, — "the perils of the sea is present, whenever the vessel has been placed out of a state fit for navigation, whether by tempest or stranding.” "The right to abandon, as for a total loss, exists when the ship, for all useful purposes of the voyage, is gone from the control of the owner.” 3 Kent’s Com., 321; Peele v. Ins. Co., 3 Mason, 27.

The ship owner is absolved from his contract to carry, if prevented by the perils of the seas. Benson v. Duncan, 3 Ex. Rep., (Welsby & Hartstone,) 655; 3 Kent’s Com., 216. It follows that, if sued for non-delivering under the contract of affreightment, he may reply that he was prevented from so doing by the perils of the sea, which were expressly provided for, and in terms made a sufficient excuse for non-performance. We then have the case where there is no legal obligation, under the contract, on the part of the ship owners, to tranship and carry forward the goods, to fulfil their obligation.

But is the cargo to be abandoned and left to perish, without any care or attempt to forward it to the port originally designated by the parties ? Does no duty devolve upon the ship owner or the master ?

If both the ship owner and the owner of the cargo, or the authorized agents of each, should happen to be at the port of disaster, in a case like this, could the owner of the cargo require, as matter of right and duty, that the ship owner should obtain and employ another ship at a higher rate of freight than that agreed upon for the entire voyage ? All the writers and authorities agree that no such claim could be sustained, because the original contract being ended, and both parties being present to look after their rights and property, there was no unlooked for emergency, which forced upon any person or party, from necessity, a care or agency in respect to the goods. Emerigon so states the rule, c. 12, § 16.

The case at bar, however, is- one where neither party is present, and the master of the ship is the only person who is in a position to look after the interests of all parties concerned. What are his duties and powers, and whom can he or does he bind by his acts or contracts ? His ship is lost, but the cargo remains, discharged from the ship and in a state fit for re-shipment. This condition of things, of course, has not been uncommon, since the days of the earliest navigators, and has called the attention of the earliest writers on the law of the seas.

Emerigon says, that, in such a case, "it is iiot doubtful that the captain, who is not less the agent of the shippers than of the owners, must watch over the preservation of the merchandize, and do all that circumstances require for the best.”

The Roman law decided that the captain was released from his engagements, if by accident and without his fault the vessel becomes unnavigable during the voyage. Faber and Yinnius, on this law, say that, in such case, the captain is not bound to seek another vessel. The " Jugemens d’ Oleron,, speaking of the vessel placed out of a state fit to continue the voyage, determines that the master may hire another vessel to finish the voyage, and shall have his freight on the wares saved. The ordonnance of Wesby also says that the master .may hire another vessel. The French have an "ordonnance” on this subject, which seems to make it the duty of the master to obtain another ship, although both Yalin and Pothier differ from Emerigon in his construction of it. They insist that the master is only bound to hire another ship, if he wishes to earn the whole of his freight.

The English authorities seem to leave the question as yet undecided, whether it is the right or the duty of the master to reship.

The American law is now understood to be that stated by Chancellor Kent, in his Commentaries. "In this country, we have followed the doctrine of Emerigon, and the spirit of the English cases, and hold it to be the duty of the master, from his character of agent of the owners of the cargo, which is cast upon him from the necessity of the case, to act in the port of necessity for the best interest of all concerned, and he has powers and discretion adequate to the trust, and requisite for the safe delivery of the cargo at the port of destination. If there be another vessel in the same, or in a contiguous port, which can be had, the duty is clear and imperative upon the master to hire it, but still he is to exercise a sound discretion adapted to the case.” 3 Kent’s Com., 212.

Now, in the case before us, the master did deem it proper to send on a portion of the cargo of the Waban. He found a vessel, the master of which agreed to carry it to Kan-goon for 45 shillings per ton, as stated before. He decided that the interest, which he represented, required or justified such transhipment. We see nothing in the case which leads us to doubt that the master acted in good faith, and that, under all the circumstances, it was a reasonable exercise of his powers. But the question behind all this is, did he, by the act, bind the owners of the ship to pay the whole freight, and can this action be sustained against them on an implied promise, arising from the acts of the master? Or, as before stated, were they the shippers of the coal on board the Lemont?

It is important to distinguish between general and limited agency. The master of a vessel is not an unlimited agent for the owners of the ship. He has, undoubtedly, extensive powers, but he cannot act for or bind his owners beyond the authority given to him by them or by the law. It is unnecessary to state more definitely the matters in which he is undoubtedly their agent, and in which his acts bind them. It is enough to say, that, like all other agents, he cannot act or bind his principals beyond the scope of his authority. It does not follow that every contract he may make, even about the ship, is from that fact alone binding. In every case, then, where it is attempted to charge the owners on a contract made by the master, they have a right to require the proof of such facts as show that he had acted within the limits of his authority. Nor does it follow that the owners will be held because the master acted in good faith, nor because the party dealing with him believed, and acted on the belief, that the master had power to bind his owners. The whole matter, as in other cases of agency, must be brought to the test of the law, and the owners will only be held, when the case is brought within the limits of the master’s power to bind them. Pope v. Nickerson, 3 Story, 465. There is nothing mystical or unusual in this matter of a master’s agency. His general authority to bind the owners of the ship by his contracts is derived from his general and ordinary character of master, and in that character he can only bind the owners by contracts relative to the usual employment of the ship, and the means requisite for that employment. The master as to the cargo is limited to the duties and authority of safe custody and conveyance only, and except in cases of unforeseen necessity, he is a stranger to the cargo beyond these purposes. Millward v. Hallet, 2 Carnes, 82; Story on Agency, § 118.

The owner can only be affected by contracts relative to the master’s trust, who is set over the ship and not the cargo, and the owner of the ship cannot be bound by any contract of the master concerning the purchase of goods or charges attending them. Ib.

"It would be of most dangerous consequences,” (says Chancellor Kent, in the case above cited,) " to ship owners, to be held responsible for all the master’s contracts and loans relative to the goods on board; and it would be unjust in principle, because such contracts are not within the purview of the master’s trust.”

But still, as we have seen, the master may, and is bound in certain contingencies, to assume authority over the cargo, and to act efficiently in causing it to be forwarded. How does he acquire that authority, and from what source is it derived ?

May not a solution of the question, and the reconcilement of some apparent contradictions in the authorities and in the doctrines of the writers on maritime law, be found in the true character of the master and his relations to all parties interested in ship and cargo. When a master stands upon the deck of his ship, as he sails out of his port of departure, he is primarily, and as he then stands, the representative and agent of the owners of the ship. If his voyage is prosperous and free from disaster, he has no right, as we have seen, to intermeddle with the cargo on the voyage, or on its safe termination. But he has, so to speak, within himself a latent potentiality, existing in possibility and not in act, of other and distinct powers and agencies, which subsequent events may call into exercise. From a simple captain of the ship, and of that alone, he may, in case of disaster, peril or stress of weather, become an absolute master over the cargo. He may cast it overboard, if the safety of the vessel requires the sacrifice; he may, in case of absolute necessity, sell a part of the cargo; he may, when not forbidden by a positive statute of his country, ransom both ship and cargo. He may be, as he often is, placed in such circumstances that he is from necessity, chiefly by reason of the absence of all other parties, the agent of each and all persons interested in the vessel, the cargo, the freight and the insurance.

Now does the law contemplate, when these latent potentialities are brought into action, and the master is forced to assume, not new powers suddenly cast or thrown upon him, but the powers which inhered in him from the first, undeveloped, and in abeyance, that the ship owner is necessarily bound by all his contracts, acts or assumptions of a pecuniary nature, however onerous to him, and although he can never derive any benefit therefrom, and which yet may be of vital importance to the other party for whose use the contract was made ?

The master may be, by appointment of the owners of the cargo before sailing, the agent or supercargo or factor for such owners. Plis duties and liabilities under his two characters are as distinct and independent as they would be if the trusts were confided to different persons. The Waldo, Daveis, 261, (Ware D. Judge;) Williams v. Nichols, 13 Wend., 358.

In Shipton v. Thornton, 9 Ad. & Ellis, 314, Lord Denman, speaking of a case of a transhipment at a higher rate than the original freight, says, "another principle will be introduced, — that of agency for the merchant.”

Chancellor Kent says, "the character of agent and supercargo of the owner of the cargo is forced upon the master, and he must, in case of emergency, exercise the discretion of an authorized agent. Searle v. Scovill, 4 J. C. R., 224.

In the leading case of " The Gratitudene,” 3 C. Robinson’s Adm., 240, Lord Stowell says, "the authority of agent is necessarily devolved upon him,” — "the character of agent and supercargo is forced upon him,” and, in another place, —" the character of agent respecting the cargo is thrown upon-the master.”

We are inclined to agree with the learned counsel for the plaintiff, that the expressions denoting that the agency or powers of a supercargo are "forced,” "cast,” "thrown,”, devolved, mean only that the exigency requires him to bring into action the latent powers inherent in him in his original character of master for the voyage. But however the agency originates, it is an agency in fact, with the powers, rights and duties of a supercargo. If so, does the cause or mode of appointment affect or vary the actual powers ?

When the master becomes the supercargo, does it make any difference whether he was originally designated by the owners, before the voyage commenced, or whether he become such by necessity and force of circumstances? In either case he is an agent for the merchant.

If, in the case at bar, Hartridgo, the master, had been appointed supercargo, by the owners of the cargo, before he sailed from Cardiff, and he had made this shipment, under the circumstances as detailed, and without any more definite designation of the party to pay the freight, could the ship owners have been held on an implied promise to pay it? Would not the law hold that he must have acted for the owners of the cargo, for which he was supercargo? Does not the same result follow, if he was such agent or supercargo by force of circumstances? Were his powers to bind those he represented less, because those powers were brought into exercise by reason of the disaster to the vessel? The essential question is, what powers did he actually possess, and for whom had he a right to act in the shipment on the Lemont ?

Instead of a prosperous voyage, the master of the Waban found himself at Port Louis, his ship totally disabled and, in legal contemplation, lost. A portion of his cargo he sold to defray his expenses. This was his first act of authority in reference to the disposition of the cargo. In that sale, he necessarily acted as agent for the owners of the cargo in selling and transferring the title to the goods. The title remained in the owners notwithstanding the disaster. Only an authorized agent could transfer the title in their absence.

The remainder of the cargo was on shore. What was the master’s duty in reference to it ? There were two absent parties, both of whom he represented, who were, or might be, interested in the disposition of the cargo. The original object of both these parties was the same, viz., that the coal should be transported to Rangoon. The ship owner desired this, that he might secure his freight; the merchant, that he might have his coal where it was required for immediate use.

The sum of all the authorities seems to be that the master "is bound in duty to do the best for all concerned,” or, in more colloquial language, to do the best he can. Plantamour v. Staples, Douglass, 219. Assuming that the American law imposed upon him the right and the duty both, to cause the cargo to be earned forward, if it could be done reasonably, the master in this case did do it, in the manner before stated. For whom did he do it and who is responsible pecuniarily for his contract? When .a master finds himself in this position of responsibility, and called upon to act, he is to remember that the owners of his ship will lose all their freight, if. the goods are not forwarded, and that he, on their behalf, as master, has a right to retain possession, for the purpose of transhipping in order to earn the original freight or a part at least. Mason v. Lickbarrow, 1 H. B., 359. If this can be done, it answers all the purposes of the original contract, so far as the principal object of the voyage is concerned. If, then, the master can find in the port, or in one within a reasonable distance, another ship, the master of which will agree to carry on the cargo, at a rate at which something may be saved to the owners of the ship out of both freights, it would be his right and his duty to employ the new ship, for the benefit of his owners, and acting on their behalf. For, although there is no legal obligation, under the original contract, yet the owners of the vessel may, if they find it for their interest, forward the cargo in another vessel. It is therefore the right and duty of the master to make all reasonable efforts to obtain another vessel, on such terms as will eventually save something to the owners of the ship. Hugg v. Augusta Ins. Co., 7 Howard, 595. In doing this, he acts as master of the vessel, still having in his possession the cargo for the owners of the ship, and has not any occasion, nor is there any necessity for him, to assume the character of supercargo or agent for the merchant. This latent and dormant office still remains in abeyance. 1 Parsons’ C. Law, 158; McGaw v. Ocean Ins. Co., 23 Pick., 405.

But if he cannot find any such vessel, which will take the goods for any sum less than the original freight, is the master at once to abandon the cargo without further effort? Would that be reasonable or right? Although the ship owner may have no duty or interest touching the cargo, its owners may have great interest in having it transported to the port of destination, even at an enhanced price.

In such a condition of affairs, the office of a supercargo comes into action, and it becomes the duty of the master to act for the interest of his principals, and to determine whether it is reasonable to believe that their interests would be subserved by transhipment. He is to do what a judicious and honest supercargo would do in the same circumstances. If he acts in good faith, great latitude may be .extended to him, and mere error of opinion and judgment, if there was reasonable ground for his decision, will not render bis acts void or make him responsible.

It follows that there may be cases where it is plain that the act of the master, or as supercargo, in employing another vessel, was so unreasonable and so manifestly against the interest of the party he, represented, .that no one but himself should be bound thereby. The counsel for the plaintiffs, in his able argument, admits that "the duty in question is, not to'employ another vessel at all events, but, if it is reasonable, to do so.” He however maintains that of this reasonableness the master is the judge, and his judgment is final, so far as a third party is concerned. If this be so, then the qualification that the master must act reasonably is inoperative. If he is required to act reasonably, and yet he is to determine absolutely what is reasonable, it amounts only to saying that whatever the master determines to ’do is reasonable. It leaves the master with absolute power to bind his owners.

But the counsel further contends-that, although it may be ' true that, as between themselves, the master is agent for all concerned, yet that, in his dealings with others, he is to be regarded only in his capacity of master of the ship and servant of the ship owner. He urges that the ship owner is always known, or may easily be found, whilst the owner of the cargo may not be known ; that the now parties, with whom he contracts for relief, are not to be involved in these questions of relative interests. In short, that the new party has a right to regard the ship master as acting, in all these matters, as the authorized agent of the owners of the ship, and that he is not bound to ascertain any of the facts.

There is, it must be confessed, at first view, some plausibility in this position. But it claims too much. Why is not the master of the new ship bound to know or ascertain with whom he is dealing, as in other cases of agency? It will not do to say that the ship owners are bound by every contract of the master, made with a third party. We have seen that the master’s powers to bind are limited to certain well defined cases. Suppose that a master, at an intermediate port, should engage another vessel to take on a part of his cargo, his own vessel being uninjured, but he, desiring to make more room for his own personal accommodation, tranships a part of his cargo, although there was no necessity in the case. Would his owners be bound to pay the freight? Clearly not. And why not? Because the master had no right thus to defraud his owners. The master would be bound, doubtless, as he is in all cases of contracts made by himself. There are many like cases, where the owners are not bound by the master’s contracts, although made in their name. /

This case finds, in the agreed statement of facts, that the master of the Lemont knew that the party seeking the use of his vessel was, or had been, the master of a disabled and lost ship; that his cargo had been landed. He knew, then, that he was acting with an agent. If he desired to know more as to the condition of affairs, and the relation of the master to ship and cargo, and for whom he could legally act, he could have inquired, as he probably did. If not, he doubtless relied upon his lien on the goods as ample security, as it commonly is. If, as in this case, that lien proves insufficient, the party can recover only of the person that was the shipper himself, or by an authorized agent. The question, then, returns as to the agency, in fact and in law.

It is, at first view, somewhat singular that no case can be found where the precise question before us has been determined, on an action by the second ship to recover of any party for the freight, on the ground of personal obligation. The reason of this undoubtedly is that, in most of the cases, the lien on the goods has been sufficient to protect the ship owners, and to compel the consignees, or some party, to pay the stipulated freight, in order to obtain possession of the goods.

The legal principles which lie at the foundation of the action, and upon which it must stand or fall, have been more or less distinctly discussed or alluded to by various authors and in different cases. Several of these have already been referred to in this opinion. Chancellor Kent says, that " we have followed the doctrine of Emerigon,” and. he is undoubtedly of the highest authority in all questions of maritime law. What does Emerigon say as to agency of the master ? He declares that, " the quality of captain makes him master,” (that is, as we understand him, master of the situation in all its aspects and demands.) He adds, " and attributes to him the care of all that concerns the vessel and cargo. He is bound to do what it is to be presumed the shippers would do if they were present.” c. 12, § 16. The same author, in commenting on and condemning a decision under the French ordonnance, states the argument of the master of the ship as follows, — (in substance,) — that the voyage had been determined by the loss of the vessel, still he was bound to neglect nothing for the preservation of the goods; that he had been obliged to hire other vessels to bring them to their destination. Why should the captain, who preserves the goods and brings them to their place of destination, be ruined by the additional freight of the substituted vessel ? The captain is obliged to hire another vessel only in his quality of factor. He has therefore to have the choice, either of claiming his freight in entirety, in which case the freight of the substituted vessel is at his (owners) charge, or of reducing his. freight in proportion to the voyage accomplished, in which case the freight of the substituted vessel is at the charge of the goods saved.

Emerigon adds, after this statement, "these reasons were at once forcible and legal.”

Shipton v. Thornton, 9 Ad. & Ellis, 314, is the only English authority in which we find a distinct reference to a case where the voyage cannot be completed, except at a rate of freight from the port of necessity higher than the original rate. Lord Denman, in that case, says, "it may well be that the master’s right to reship may be limited to those cases in which the voyage may be completed on its original terms as to freight, so as to occasion no further charge to the shipper, and that where the freight cannot be procured at that rate, another, but familiar principle, will be introduced, — that of agency for the merchant. For it must never be forgotten, that the master acts in a double capacity, as agent of the owner as to the ship and freight, and agent of the merchant as to the goods. These interests may sometimes conflict with each other; and from that circumstance may have arisen the difficulty of defining the master’s duty, under all circumstances, in any but very general terms. The case now put supposes an inability to complete the contract on the original terms in another bottom, and therefore the owner’s right to tranship will be at an end, but still, all the circumstances considered, it may be greatly for the benefit of the freighter that the goods should be forwarded to their destination, even at an increased rate of freight; and, if so, it will be the duty of the master, as his agent, to do so. In such a case, the freighter will be bound by the act of his agent, and of course be liable for the increased freight.”

There are several American cases in which the right and duty of the master to reship in case of disaster are considered. The result of them seems to be what is stated in Bryant v. Com. Bis. Co., 6 Pick., 143. "After all, it becomes a question of reasonable care and conduct on the part of the master, and, like other questions of that nature, after the facts are found, the law arising from them will be pronounced by the Court.” All the cases admit that there is no imperative and inexorable duty in every case to tranship, even for the owner of the cargo, and even if a vessel can be found. The terms may be so onorous as to absorb wholly the value of the goods at the port to which they were destined; the value of the cargo may be nearly or quite as great at the port of disaster as at that port, or there may be other circumstances which would render transhipment manifestly and indubitably injurious to the interest of all parties. Every case must depend upon its own surrounding circumstances. The test question is, what was reasonably required of the master or supercargo under a plain and common sense view of the situation ? Saltus v. Ocean Ins. Co., 12 John., 107; Treadwell v. Union Ins. Co., 6 Cowen, 270.

"What is reasonable and just in the execution of his powers in such cases is legal.”

The case of Thwing v. Washington Ins. Co., 10 Gray, 443, is a very recent decision by the Court of Massachusetts, and discusses,, with the usual ability and learning of that eminent tribunal, the points involved in the case before us. Although that was not a case against the owners of the first ship to recover freight, yet its consideration involved the principles on which such a claim rests. The Court, in that case, deny the proposition that the master is obliged, in his capacity as agent for the owners of the vessel, in all cases of disaster to the ship, to send forward the cargo, even if it remains in a condition to render its transhipment judicious and expedient; but hold that no such duty or burden is imposed by virtue of the contract of aifreightment. That contract is always subject to the proviso that its performance may be defeated and excused by the perils of the sea. The opinion, however, distinctly recognizes the right and duty of the master to act as agent for the owner of the cargo, after he has ceased to have any such right to act for the ship owner. After alluding to the difficulty of drawing the exact line, which would distinguish the master’s authority to act for the various parties interested, the learned Judge, (now C. J. Bigelow,) states the conclusion as follows: — " But we think that it may be safely said that whenever, and as soon as the owner of a vessel, by reason of the perils of the sea, ceases to have any interest, either in the ship or freight, so that nothing of either can be saved or protected by any act of the master, his authority to hind the owner is at an end.

"The subject matter of the master’s agency for the owners of the ship, in such a case, ceased to exist, and his power to bind the principal ceases with it. * *' * * In the absence of any adoption or recognition by the owner (of the ship) of such transhipment, we know of no principle or authority on which, it can be held absolutely binding on him. On the contrary, the more reasonable doctrine is that stated in 2 Philips on Insurance, § 1634. 'If the motives of the master’s course are wholly on the side of one party, then he must be presumed to have acted on behalf of such party.’”

The same general doctrine as to the interests of the party to be affected by a contract by the master is found in Duncan v. Benson, (Ex. R.,) 1 Welsby & Harlestone, 557.

" In other cases, where, by no possibility the shipper could derive benefit, there is no implied authority from him to the master, and the act of sale, or pledge, would be simply wrongful.” Why is not the same rule to be applied to the ship owners in their relation to the cargo, situated as this was? In the case of the Gratitudene, 3 Rob. Ad. R., 261, the Court declares, "that in all cases, it is the prospect of benefit to the proprietor that is the foundation of the authority of the master.”

The case of Gibbs v. Gray, (Ex. R.,) 2 Harlstone & Norman, 21, is one where, in a case of disaster like the present, the master made the contract of reshipment in direct terms for the owners of the cargo, and as their agent. Although, in that case, the Court denied his power to bind them, yet it was upon the ground that the owners of the cargo had an agent at the port of reshipment, who was not consulted, and, on the further ground, that the contract was unreasonable, as it provided for the payment of dead freight. But the power so to bind the owners of the cargo in a proper case was not doubted.

It is urged that the owners of the ship appoint the master, and therefore they must be held responsible for his contracts. It is true that they do make the appointment, but they do not thereby themselves create or limit all his powers and duties. The law fixes them in almost every respect. The shipper knows, or may know, who he is, and what his character and reputation is or has been. He knows, or is held to know, the law applicable to a master. He knows that he may, in certain contingencies, be called upon to act in reference to the cargo as his agent or supercargo. He knows, that when those contingencies arise, he may no longer be agent for the ship owners, who appointed him, but for himself. It does not, therefore, necessarily follow that when the owners of the ship employ the master, they confer on him any powers relating to the cargo, as their employee. The law steps in and defines and confers the powers in question on the office he holds.

We are not called upon, in this case, to consider any question arising between the ship owners and the original shippers. Nor are we called upon to consider the question, how far, as between the ship owner and the charterers, the former may be liable for the wrongdoings or non-feasances of the master. None such are intimated in the case before us. Our question relates entirely to the validity of a contract, and its binding obligation on the ship owners made with a new and third party.

In this case, we are not called upon to determine, whether, by this shipment of the coal, the master bound the owners of the cargoy by a reasonable exercise of his powers in their behalf. As we have seen, there may be eases where he binds no one but himself. The precise question before us is, whether the ship owners are liable, as on implied promise, to pay the stipulated freight in the second ship on the facts stated. If they are, then the owners of the ship are to be holden liable, as shippers of the cargo, for the freight of goods in which they never had any ownership or title, and from the further carriage of which, under the contract, they have been absolutely absolved, and from the transportation of which in the new ship, as it is admitted, they cannot derive any benefit, or save any part of the original freight, and where they are not named or recognized as such shippers in the bill of lading, or by the master in his negotiations, and where no subsequent ratification is pretended.

We do 'not think that, under the circumstances of the case as they existed, it would have been "a reasonable exercise of the master’s powers, if he had attempted to bind the owners of his ship by a distinct promise in their behalf to pay the new freight.

And it would be, certainly, as unreasonable in the Court to hold them liable on an implied promise, and as the actual shippers of the coal, in the absence of any evidence of an attempted agency, or direct promise on the part of the master. Plaintiffs nonsuit.

Appleton, C. J., Davis, Walton, Dickerson and Danporth, JJ., concurred.