Stirling v. Nevassa Phosphate Co.

Stewart, J., delivered the opinion of the Court. The action in this case was brought by the appellee, the owner of the cargo, against the appellants, the owners of the Brig Georgia, to recover for the contributory share for certain jettisoned cargo, and expenses chargeable to the brig and freight for certain bottomry bonds, in a general average contribution. The brig and freight being insufficient to meet this contribution, the cargo was taken for the payment of the deficiency, and the appellee claims to be indemnified by the appellants. ¹³⁴ Under an agreement of the parties, the question to be determined, arises out of the facts averred in the third plea of the appellants to the third count of the appellee, to which third plea the appellee demurred. From the allegations of the third plea, with its reference to the statements of the third count, it appears that on the 11th day of November, 1868, the appellee being the owner of 450 tons of guano valued at $8,000, at the Island of Nevassa, in the Caribbean Sea, shipped it on board the brig Georgia, belonging to the appellants, to be conveyed to the port of Baltimore, in the State of Maryland, under a contract of affreightment containing “the exceptions of the dangers of the sea,” for the sum of $8 per ton freight; that in the course of the voyage the master of the brig jettisoned thirty-five tons of the guano, owing to the perils of the sea, for the common benefit and safety of the brig and the balance of the cargo.

It then avers that whilst proceeding on her voyage the brig was greatly injured by the perils of the sea, which made it necessary for her to put into the port of Kingston, Jamaica, and afterwards into the port of Key west, Florida, for repairs, to enable her to resume and complete her voyage, if advisable, with the remainder of the cargo on board; that the damages could not be repaired to enable the brig to proceed on .her voyage, except at a cost for repairs at the port of Kingston of $7,599 in gold, and for the repairs at Key West, of $2,328 in American currency, exceeding for the first mentioned, as well as the aggregate of said sums, what would be the entire value of the brig, after such repairs, on her arrival at Baltimore, and all the freight she could earn on said voy-" age, in case she could, when so repaired, resume her route and safely arrive at Baltimore with the cargo on board. It further avers, that no prudent owner would have incurred the expenses of such repairs; that the master of the brig, as to the interests of the appellants, did imprudently ,cause the repairs to be done upon the brig, and that in order ■to obtain the funds necessary for the repairs, the master exe ¹³⁵ euted the two bottomry bonds in the declaration mentioned— the one at the port of Kingston for the repairs there, and the other at Key West for the repairs at that port, each of the bonds hypothecating and binding the cargo as well as the brig and freight. That the master, in making the repairs and executing the bottomry bonds therefor, acted without any authority from the appellants, and without their knowledge and privity. That the brig resumed her voyage, and with the cargo on board, except what had been jettisoned, arrived safely at Baltimore.

That upon her arrival, by an agreement in writing entered into between the appellants and appellee, on the 24th of April, 1869, to which the master was also a .party, a certain James Carey Coale, of Baltimore, was authorized to make such disposition of the brig and cargo, or their proceeds, as he might deem proper and expedient for their common benefit, and in particular to make in their name, such arrangement and agreement with the holders of the bottomry bonds, as he might deem advisable for the satisfaction of the bonds upon the brig and cargo. That the proceeds of the sale of the brig, together with the freight earned, were applied to the satisfaction of the bonds, but that the entire value of brig and freight were insufficient to pay the debt, and there remained due to the holders of the bonds a large sum. That by reason of the said several matters, and of the Act of Congress in such case provided, they are not liable for the acts of the master in executing the bonds, and the consequences thereof. Under these circumstances the question arises whether the appellee, the shipper of the cargo, is entitled to recover for this excess from the appellants, the owners of the brig.

There can be no doubt the master of the brig was the agent of the owners, with power to bind them for any repairs to the extent of the value of the brig and freight, but his agency is ¹³⁶ circumscribed and defined by the nature of his business, unless expressly clothed with larger authority by the owners of the brig. The demurrer concedes that no prudent owner would have made such repairs. To permit such expenditures to bind the owners, under the circumstances, beyond the value of the brig and freight, it seems to us, finds no warrant in the law of agency, or in any sound principle of law or policy applicable to maritime pursuits, and that the maintenance of any such rule would be ruinous to the owner of the ship. When from the perils of the sea, the brig in this case had been sq damaged that the master discovered repairs of that magnitude would be necessary to enable the vessel to resume her voyage, which no prudent owner, if present, would make or sanction; he, as master, ought not to have incurred them.

It was not his duty, and he had not the power from the character of his employment, thus to involve his principals. Under such circumstances he had the right, for the benefit of the cargo and all persons interested, to tranship the same, if a suitable vessel could be conveniently found to convey it to its destination. In such case the extra expense of transhipment of the cargo would be chargeable to the owner thereof. The conduct of the master and the respective rights and obligations of all parties- interested, under circumstances of disaster to the voyage, must be determined according to the principles of justice-applicable to such case; and the power and duty of the master may be tested by what the owner, as a discreet man, would do, if he were present acting for himself.

The transportation of the cargo may derive more benefit from such expenditures than the vessel, because the master by the repairs thereof, may save the shipper from the payment of the extra freight, in case of transhipment or probable loss, if no conveyance could be had. We find the duty of the master very clearly stated in the case of the Propeller Niagara vs. Cordes, et al., 21 How., 24 . ¹³⁷ "As agent of the owners, the master is bound to carry the loads to their place of destination in his own ship, unless he is prevented from so doing by some cause arising from irresistible force over which he has no control, and which cannot be guarded against by the watchful exertions of human skill and prudence. When the vessel is wrecked or otherwise disabled in the course of the voyage, and cannot be repaired without too great delay and expense, he is at liberty to tranship the goods and send them forward so as to earn the whole freight; and if another vessel can be had in the same or a contiguous port, or one within a reasonable distance, it becomes his duty, under such circumstances, to procure it and transport the goods to their destination, and in that event, he is entitled to charge the goods with the increased freight arising from the hire of the vessel so procured.” “ That rule, however, is not obligatory in cases where the goods are not perishable, provided the ship can be repaired in a reasonable time. In that state of the case, he may, if he deem it best, retain the goods until the repairs are made, and forward them in his own vessel; and upon the same principle, and for the same end, if he have no means to tranship the goods, it is his duty to repair his own vessel, when capable of being repaired, provided it can be done in a reasonable time, and he has the means at his command, and if not, and the means cannot be obtained from the owner, or upon the security of the ship, he may sell a part or hypothecate the whole and apply the proceeds to execute the repairs, in order that he may be enabled to resume his voyage and carry the goods, or the residue, to the place of destination, and he is not entitled to recover for freight if he refuses to tranship the goods, unless he repairs his own vessel within a reasonable time, and carries them to the place of delivery.” The owner of the cargo, in a case where the expenses had been thrown upon the cargo exclusively, would have the right to call upon the owners of the vessel for contribution or payment to the extent of the vessel and freight — any thing ¹³⁸ beyond must be borne by the.cargo, the master, under such circumstances, being considered as acting for the benefit of all parties interested.

It is stated in 1 Parsons on Ship. & Adm., 235, 238, ‘-‘the rule, as usually expressed,- is, that the master must tranship if he can, and may then charge the excess of the cost of transhipment over his freight, to the owner of the goods. The reason of this is, that as soon as such an exigency arises, the master is clothed, from necessity, with authority to act as the agent of all interested — for the ship-owner, he must do what can be done to save his freight; for the shipper, he must do what can be done to save his goods and send them to their port of destination. It has been declared by the Supreme Court of Massachusetts, that after the owners have no longer any pecuniary interest in the ship or the freight, because nothing of either can be saved or protected by any act of the master, he is no longer their agent, in the sense of having any authority to bind them.” Chief Justice Taney, in Naylor vs. Baltzell, Campbell’s C. C. R., 87, very clearly expresses his views: “ The master has the power to pledge the ship and freight, only in cases of necessity, that is to say, where it is necessary for the interest of the owner, or there is reasonable ground to believe it to be for his interest. Now, it can never be necessary for the interest of the owner of the ship, to place upon her repairs which will more than double the amount of what she is worth after the repairs are made.

There may be cases in which it may be for the interest of the cargo to do so, because the cargo may be of great value at the port of destination, and of- little or no value at the port of necessity. It may be for the interest of the cargo to have repairs made upon the ship, far beyond her value, in order to enable him to transport his property to its destination. If-there was any necessity which would have justified the enormous expenditures for repairs in this case, it must have been the necessity of the cargo, and not that of the brig, for the repairs unavoidably ¹³⁹ sacrificed the vessel and freight, and nothing could be gained by them except for the cargo.” No prudent owner would make such repairs on his vessel which would more than exhaust all her value and the freight. Such hypothesis would violate all the known rules that govern human actions.

The owner of the cargo might find it to his advantage, and be willing to have them incurred, upon the responsibility of the cargo, for any excess over the value of the vessel and freight. In 2 Pars, on Ship. & Adm., 22, 23, it is stated: “ Exigencies may arise, in which the master becomes, of necessity, supercargo, and is clothed with whatever agency or authority may be needed to enable him to protect the property and interests intrusted to him.” “He may sell the whole cargo, if he can neither take it on nor tranship it, and it. is perishable and will be destroyed or materially diminished in value, before he can obtain instructions from the owners. He may sell a part of the cargo, in order to raise funds to pursue the voyage and carry on the remainder. But not until other means of raising money are exhausted, including the drawing of bills on the owner, hypothecating the ship, or making other use of the owner’s property or credit.” “The beneficial effect of the sale of the cargo will extend to the ship, by enabling her to earn her freight, and even if the ship profit most by it, yet if a part of the purpose and effect be to carry on the cargo that is not sold, it will be justified as an act for the common benefit.” The power of the master is simply commensurate with the duties devolved upon him, under the circumstances in which he may be placed by the fortunes of the voyage, bound to protect and subserve all the interests within the range of his employment.

Whenever exigencies require him to act for the benefit of other parties, to that extent his authority, as agent of the owner of the ship, is abridged. ¹⁴⁰ Judge Story, in Pope vs. Nickerson, 3 Story’s R., 495, says: “ There is no reason to say that a master of a ship has any more authority to bind the owners, than any other agent has to bind his principal.” In 2 Parsons on Ship. & Adm., 7, it is stated that, “to know what the authority of the master is, in general, or under any particular circumstances, we must appeal to the law of agency, and the principles of that law which are applicable to the particular case.” Upon what- principle of construction as to the powers of an agent, can it be inferred, that the owner of a vessel would, under any circumstances, authorize his agent, the master, to involve him in expense for the repairs of the vessel, from which no possible profit could be derived to him ? The contract of affreightment does not compel such a course, because he is, by it, exonerated, if the perils of the sea have occasioned the disability of the vessel to transport the cargo. “The general limitation of the power of the master to bind the owner by the contracts he makes for him, is this: they must relate to the condition, or the use and employment of the ship, and be within the usual duty and business of a master. They must not be so unreasonable in themselves as to raise the suspicion that the contracting party acted fraudulently or recklessly in making them.” 2 Parsons on Ship. & Adm., 11. “ The master may certainly bind the owners for supplies and repairs, if they are necessary; but he can only procure such repairs as are properly speaking, necessary for the ship, that is such as are reasonably fit and proper, having regard to the exigencies and requirements of the ship, for the port where she is lying and the voyage on which she is bound.”