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insurance of freight upon a new voyage, though different from that described in the charter-party may be good.1
A master has no authority to bind his owners by writing forward to a broker in a foreign port, prior to the ship's arrival therein, authorising the broker to charter his ship.
The authority of the master to bind his owners by charter-party arises when he is in a foreign port, and his owners are not there, and there is difficulty in communicating with them.
The master is not the agent for his owners to hold out a person as authorised to charter his ship, so as to bind the owners.
Thus where G., a ship broker at G. G., chartered the vessels F. and M. prior to their arrival at G. G., and without communication with the owners. G. had on several previous occasions chartered the F. and M. under similar circumstances, and all of these charter-parties had been carried into effect. After the arrival of the F. and M. at G. G., their masters were on several occasions at G's. office, and were shewn their charter-parties. A fortnight after the vessel's arrival at G. G., during which time freights had risen, the masters refused to take up the charter-parties.
It was held, that the masters by their conduct had not ratified the charter-parties in such a way as to make them binding.2
1 Hall v. Brown, 2 Dow. 367, 375; Wiggins v. Johnston, 14 M. & W. 609. 2 The Fanny; The Mathilda, 5 Asp. M. L. C. 75.
The master of a chartered vessel has a right to settle a claim, arising at a foreign port, for demurrage by detention beyond the period for which the rate of demurrage is stipulated, such a claim being in the nature of an unliquidated demand, which it is for the owner's benefit to have promptly settled abroad, without leaving it for dispute or litigation at home.
But if the master become part owner of the ship after the charter and during the voyage, that will raise a presumption of law that he was interested in the charter, and would confer an authority primá facie to make a settlement of such a claim. And as the presumption of law is, that where parties are partners they are partners in equal moieties, and that where they are part owners they are owners with equal rights, the presumption where they are part owners of a ship is, that they are both interested in any charter upon it made before they became such owners of it. Therefore, where it appeared that one A. B. had purchased the ship during the voyage, and that the master had also become a part owner, although there was no evidence that either of them had purchased directly from the former owner with whom the charter was entered into, and who was the nominal plaintiff :It was held to be evidence of an authority in the master to settle for the demurrage claimed.1
1 Alexander v. Dowie, 25 L. J. Ex. 281.
Freight to be earned by a ship on a homeward voyage belongs to the shipowner, so that a master employed by the ship's husband to obtain a charterparty has no authority to cause it to be paid to himself, for the purpose of setting it off against a debt due to him from the ship's husband.'
The liability of the owner of a vessel to pay for repairs and equipments ordered by the master depends, not upon the ground of ownership of the vessel, but upon the ground of a contract made with the vendor by a person who was the owner's agent for the purpose of ordering such necessaries.
The master's contracts cannot bind the owner, unless authority to bind the owner has been actually given to him; or unless the owner has, by word or deed, held out the master as his master, and thereby induced the vendor to supply the necessaries upon the credit of the owner.
Thus, where the owner of a vessel entered into an agreement and charter-party, by which it was provided (inter alia) that the master, officers and crew, should be appointed by the owners, be under their control, and be dismissed by them, but that their wages should be paid by the charterer; it was also provided that the master should act as supervisor of the repairs and fittings of the ship. An action having been brought for necessaries supplied to the ship while under this charter, by
1 Walshe v. Provan, 22 L. J. Ex. 355.
the master's order, who stated in his evidence that he considered himself as acting for and as the servant of both owners and charterer :
It was held that the owners had held out the master as their master, and that they were therefore liable for the debt.1
When the Secretary to Government is not charged in respect of any express undertaking or agreement between himself and the plaintiff, or in respect of any character other than his public and official character of Secretary to Government, and it is only in that character, and in that only, that his duty is alleged to arise; being, therefore, a duty as between him and the Crown only, and not resulting from any relation to or employment by the plaintiff, or under any undertaking in any way to be personally responsible to him, there will be no duty from which the law will imply any promise or agreement on his part to be personally liable. And it has been established by a class of cases that an action will not lie against a public agent for anything done by him in his public character or employment; though alleged to be, in the particular instance, a breach of such employment, and constituting a particular and personal liability; such persons, Lord Mansfield stated in Macbeath v. Haldimand, are 3
1 The Great Eastern, L. R. 2 A. & E. 88.
* Unwin v. Wolsely, 1 T. R. 674; Macbeath v. Haldimand, 1 T. R. 172; Gidley v. Lord Palmerston, 3 B. & B. 275.
31 T. R. 172.
personally to contract; and in the same case it was observed by Ashurst, J.,-" In great questions of policy we cannot argue from the nature of private agreements."
Thus, the commander of a naval vessel was held not to be responsible for contracts entered into by him on behalf of Government. So where in an action on a charter-party by which it was agreed to employ a ship of which the plaintiff was the captor, as soon as sentence of condemnation should have passed, it was held that a servant of the Crown contracting on account of Government was not personally answerable.2
Wherever a party undertakes to do any act, as third parties. the agent of another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally responsible therefor to the person with whom he is dealing for or on account of his principal3 (both for the amount of the contract, and for the costs incurred, if any, by the other party in a fruitless suit against the supposed principal.*)
The same rule applies, where the agent, has no such authority, and he knows it, and he nevertheless undertakes to act for the principal, although he
1 Macbeath v. Haldimand, 1 T. R. 172.
Unwin v. Wolsely, 1 T. R. 674.
3 Polhill v. Walter, 3 B. & Ad. 114; Bowen v. Morris, 2 Taunt. 385; Jones v. Downman, 4 Q. B. 237n; 2 Kent's Com. 629.
* Collen v. Wright, 8 E. & B. 648; Spedding v. Nevell, L. R. 4 C. P. 212; Godwin v. Francis, L. R. 5 C. P. 295.