Pentz v. Clarke

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. ³³⁸ 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 ³³⁹ 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 au ³⁴⁰ thority 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