Gaither v. Myrick

Tuck, J., delivered the opinion of this court. The appellant sued the appellee, to recover damages for losses alleged to have been sustained on the sales of flour shipped on board a vessel which sailed from Baltimore, for “Valparaiso and a market,” of which the appellee was part owner, master and supercargo. Misconduct, negligence, and consequent liability, are imputed to him in each and all of these capacities. At the trial fourteen prayers were offered' by the appellant, all of which were refused, except the last.

They involve the construction of the contract, and the extent and proper exercise of the discretion reposed in the appellee, under the circumstances by which he found himself surrounded, at his first port of destination, and afterwards in the progress of the voyage. The questions presented, in the argument, will appear by the statements and points filed, and we shall dispose of them in ¹³⁷ their order; first, however, stating generally the roles of law by which we suppose'cases of this kind to be governed. The principles which regulate the conduct of factors abroad apply to supercargoes. Beawes’ Lex.

Merc., 44, 47. Story’s Agency, sec. 33. They are liable for injuries to the employer, occasioned by the want of reasonable skill or of ordinary diligence, by which is to be understood “such skill as is, and no more than is, ordinarily possessed and employed by persons of common capacity engaged in the same trade, business or employment; and by ordinary diligence that degree which persons of common prudence are accustomed to use about their own business and affairs.” Story, sec. 183. They are also bound to good faith, and must exercise their judgment after proper inquiries and precautions, and, where they have a venture on the same ship, they are bound to exercise, at least, as much diligence and care, as to their factorage transactions, as they do as to their own private concerns.

And they are chargeable for negligence if they sell without making proper inquiry, after having received notice of facts which ought to put a person of prudence on his guard. Ib., sec. 186. Russell on Factors & Brokers, 33, 34. As a general rule they cannot delegate their authority, any more than other agents, but exceptions may arise where the power of delegation is conferred by the necessity of the case, the usages of trade, or the law and customs of the country where the agency is to be executed.

Story, secs. 13, 14, 34, a. 11 Howard, 209 . Where, as in this case, the master is made consignee of the cargo, the duties and liabilities are as distinct as if confided to different persons. Story, sec. 41. The responsibility of the defendant in his capacity of part owner and master alises from the sale of the ship, and the alleged improper delivery of the flour at Callao.

It is the duty of the ship to convey the cargo according to the projected voyage, and this must be done by every reasonable and practicable method. “ Every act that is not properly and strictly in furtherance of this duty is an act for which both the master and owners may be made responsible.” Abbott on Shipping, 241. There are emergencies imder which a sale of the cargo ¹³⁸ and even of the ship may be justified, but the necessity of the case must require that course. This necessity may arise suddenly, and under circumstances that could not have been provided for. “In general, it may be said that, (in such a case,) the master is to do that which a wise and prudent man will think most conducive to the benefit of all concerned; — some regard may be allowed to the interest of the ship and its owners, but the interest of the cargo must not be sacrificed to it. Transhipment for the place of destination, if it be practicable, is the first object, because that is in furtherance of the original purpose: if that be impracticable, return or a safe deposit may be expedient.

The merchant should be consulted, if possible. A sale is the last thing that the master should think of, because it can only be justified by that necessity which supersedes all human laws. If he sell without necessity, his owners, as well as himself, will be answerable to the merchant.” Abbott, 243. 1 Arnould on Insurance, 189, &c. Smith's Mercantile Law, 171, 292.

As to the construction of the contract: that is, the meaning of the words to “Valparaiso and a market,” we understand the counsel to agree that they must be interpreted according to the analogy of this case to one arising under a policy of insurance containing such a clause; and by this test, we think, they authorised the ship to visit such other ports, beyond the one named, as the appellee thought expedient, in the exercise of a sound discretion. Deblois vs. Ocean Ins. Co., 16 Pick., 303 . Whether he was under any obligation to seek a market this side of Valparaiso, or to go there in the first instance, we need not decide, inasmuch as he did visit the named port, and no question is made on this part, of the case.

These terms also imposed on the ship the carriage of the cargo until a market was found, or the goods left on deposit for sale under circumstances authorising such a departure from the original contract of affreightment. In the case of Richardson vs. London Ass. Comp., 4 Camp., 93, the goods in question were the investment of an East India captain, and the voyage was described in the policy to be, “ at and from London to Maderia, the Cape of Good Hope, and all or any of the ports or places in ¹³⁹ the East Indies, &c., until arrived at the last place of discharge on the outward voyage, with leave to exchange the goods in the course of the voyage.” The company’s cargo was discharged at Calcutta, (a place within the policy,) and the ship ordered with another cargo to Madras. The captain had also landed the whole of his investment at Calcutta and had disposed of a considerable part of it; but, being unable to sell the residue, he resolved upon a new market, and for this purpose reloaded it on hoard the ship for Madras; on which intermediate voyage she was lost.

The question was, whether, under the terms of this policy, the risk still continued on the residue of the captain’s investment on board at the time of the loss, or whether it had ended at Calcutta? Lord Ellenborough held, that the risk had ceased at Calcutta, “ the last place of discharge on the outward voyage.” If, he said, “the company’s officers wish for the protection which is here sought; (that is, until the goods are finally disposed of in some market in the East Indies,) they must not limit the risk to the duration of the outward voyage, but extend it to the arrival of the goods to a market at their final port of discharge.” It is added by Mr. Arnould, (Vol. 1, 439,) “There can be no doubt that an insurance in such form would effectually protect the goods until actually disposed of in some foreign market.” If this be the liability of the insurers in such cases, it is clear that it is the ship’s duty to carry the cargo until disposed of. We proceed to apply these principles to the case before us. The first prayer was properly refused, because it submitted to the jury the finding of facts of which there was no sufficient evidence.

One specification is sufficient. There was nothing from which the juiy could have found that the defendant did not make reasonable efforts to sell the plaintiff’s flour at a fair price, at some one or inore of the ports which he visited before he reached Callao. On the contrary, it was in proof that he had offered the flour at Arica, and, not satisfied with the prices there, said he was going to Lima, of which Callao is the outer port, because he had received advices of better prices at that place. In the absence of evidence of such negligence and misconduct, the law does not presume that he did not make ¹⁴⁰ reasonable efforts to effect sales at such ports as he thought it expedient to visit, as it was his duty to have done; and especially as that presumption is rebutted by the consideration that it was his interest, as part owner, to sell the cargo as soon as practicable.

And, even if he could have made sales at Arica or elsewhere, he had a discretion to do so or not, provided it was fairly exercised. The nature of the voyage' — for a named port and a market — necessarily implied, as we have seen, that he was not bound to sell at the first or any other port, if he had reason to believe that he could find a better market by going further, and acted in good faith on such information. We may illustrate this view, (and the same applies to propositions presented by some of the other prayers,) by supposing that, with the advices he had received at Valparaiso before him, he had sold the plaintiff’s flour at Arica for the price offered, and had then sailed for Lima, and there sold his own flour at the higher price named in his advices. Would not the plaintiff have had good reason to complain that he had sold his flour at the wrong market?

Yet, when he has acted upon the information received, and loss has occurred to the plaintiff, he is charged with negligence. Certainly the result should not alter the application of the principle. Objections equally fatal apply to the second, third and fifth prayers. The second is based in part on the first, besides embodying other propositions of fact without evidence to sustain them, which we need not indicate.

The third is objectionable for the reason that there is nothing to show that the purchaser of the one hundred and fifty barrels sold at Arica, was willing or unwilling to have taken any of the plaintiff’s flour as part of the quantity he wanted. To fix liability on the appellee in this aspect of the case, could only be done by drawing an inference against his interest and duty, when there is nothing in his management of the cargo, up to that time, to show that he was not governed by a desire to promote the interests of