an uncertificated master, contrary to the 31 Geo. 3, c. 54, s. 7.1 the change be If, in course of the voyage, by reason of death, disability, Otherwise if or other necessary cause, the master originally named in the of necessity. policy be rendered incapable of acting, or if he abandon his command, the substitution of another captain in such case of necessity, will, of course, in no way affect the validity of the policy. Even in such case, however, the command should not be delegated to a master belonging to a belligerent nation in time of war; nor, except in case of absolute necessity, if the ship be British, ought the appointment to be conferred on any one that does not possess a British certificate of qualification for master on such a voyage.3 powers of borrowing under neces sity. The duty of the master, in case of damage to the ship, is Master's to do all that can be done towards bringing the adventure to a successful termination, to repair the ship (if there be a reasonable prospect of doing so at an expense not ruinous) and to bring home the cargo, and earn the freight if possible. To accomplish this object of repairing his vessel, the master is authorized to bind his owner, by causing the repairs to be done on his credit, in which case the tradesman may sue the owner; or by borrowing money on his credit where that is necessary, in which case the lender has his 1 Farmer v. Legg, 6 T. R. 186. See the provisions requiring certificated masters, mates, and, for steamers, engineers also, 17 & 18 Vict. c. 104, s. 136; 25 & 26 Vict. c. 63, s. 5. And for the construction of the statute, see in addition to Farmer v. Legg, supra, Freard v. Dawson, 1 Marsh. Ins. 171, and Cunard v. Hyde, 29 L. J. (Q. B.) 6, compared with Cunard v. Hyde, 27 L. J. (Q. B.) 408; and Wilson v. Rankin, 34 L. J. (Q. B.) 62. The latter two of these cases being decided upon the same statutory provision (16 & 17 Vict. c. 107, ss. 170, 172, now repealed, as to loading tim ber on deck) determine that the policy 2 1 Emerigon, c. vii. s. 3, pp. 189, 190. 3 17 & 18 Vict. c. 104, s. 136. Prior communication required. Power to hypothecate. remedy against the owner; or by selling a portion of the cargo, which is in effect borrowing from the shipper through the medium of a sale, and in this case the shipper may sue the shipowner; or the master may hypothecate part or the whole of the cargo, which gives a right to the proprietor of it to recover a compensation from the owner of the vessel. All these are merely modes of raising money by the agent of the shipowner for his account and use, to enable the agent to do his duty by repairing the ship. The agency, for the purpose of borrowing by these various modes, and so binding his owner to the lender, is cast upon the master by the necessity of the case. He may also hypothecate the ship or the freight, or both, which gives the lender a right of arrest by Admiralty process. There is this one condition, however, imposed by the law on these various powers as an indispensable prerequisite to their exercise, that the master is bound to communicate with the owner of the subject to be so dealt with, whenever such communication is under the circumstances practicable, and would not be attended with such delay as must prove seriously detrimental to the interests involved.2 It is not proposed to consider here the authority of the master to bind his owner by borrowing money to repair, or by causing repairs to be done on his credit,3 but merely to notice a few points connected with his power to hypothecate and sell the cargo, or part of it. With regard to his right to hypothecate, it is now clear law, that in cases of justifying necessity, or to use the language of Lord Stowell, in the celebrated case of The Gratitudine-" of instant, unforeseen, and unprovided necessity," the master having no other means whatever of procuring funds, may hypothecate not the ship only, but the cargo also, in order to raise money for the 1 Judgment of Court of Exchequer in Duncan v. Benson, 1 Exch. 555; affirmed in Benson . Duncan, 3 Exch. 655. 2 Maclachlan, Shipping, 141, 147. See Maclachlan on Shipping, c. iv. pp. 139, 143. repairs of the ship. In such cases the master, who in the ordinary course of things is a stranger to the cargo, except for the purposes of safe custody and conveyance, has forced upon him the character of agent and supercargo, not by the immediate act and appointment of the owner, but by the general policy of the law.2 Duncan. The extent of this agency in respect of the cargo, is to bind it to the lender on respondentia; a right of action over lying for the owner of the cargo against the owner of the ship, when the ship is the sole occasion of such borrowing.3 The master of The Lord Cochrane in consequence of sea- Benson v. damage hypothecated for repairs the ship, freight, and cargo, including the plaintiff's goods. The ship when afterwards sold, and the freight, produced less than the sum borrowed. The plaintiff being obliged to contribute towards the difference, and to pay costs in the Court of Admiralty, brought his action for the whole of this loss against the owner of the ship, on an implied promise to indemnify. The Court of Exchequer unanimously sustained the action, and the Court of Exchequer Chamber on a bill of exceptions, in effect affirmed the judgment.5 Patteson, J., delivering the judgment of the latter Court, lays down the law as to the authority of the master, and the liability of the shipowner in the following terms :— 4 "In ordering the repairs of the ship, the master acts Master agent of shipowner. 1 The Gratitudine, 3 Rob. 240. 2 Id. 260. 3 The case of The Gratitudine dealt only with the authority of the master in respect of binding the cargo to the lender of the money, it determined nothing as to the relative rights of the owners of the ship and of the cargo inter se;" per Patteson, J., delivering the judgment of the Exchequer Chamber in Benson v. Duncan, 3 Exch. 655. 4 Duncan v. Benson, 1 Exch. 537; S. C., 17 L. J. (Ex.) 238. 5 The bill of exceptions was ten dered to the ruling of the learned Necessity is the origin and criterion of the power. exclusively as the agent of the owner of the ship. No other person but the owner of the ship and his agent can have any authority to order the repairs. The owner of the cargo cannot insist on such repairs being made, for the shipowner is absolved from his contract to carry if prevented by perils of the sea, and he is bound by it if prevented by inherent defects in the ship. Being then the agent of the shipowner in ordering the repairs, how can he be the agent of any one else in borrowing money to pay for them? If, in order to borrow that money, he is obliged to hypothecate, not only the ship, but the cargo, he, in effect, borrows money on the cargo for the benefit of the shipowner, just as much as he would have done had he sold a part of the cargo to raise the necessary funds, in which case, it is not doubted that the shipowner must have indemnified the owner of the cargo."1 3 Necessity is the origin of the master's authority to borrow; and if simpler powers fail him, necessity is still the criterion of his authority to resort to powers of a more extensive and extraordinary nature.2 He must, in the first instance, endeavour to raise the money upon the credit of his owners; if that resource fail him, and only then, will he be justified in resorting to hypothecation. It is nowhere laid down that for the ship's purposes he shall not in the first instance resort to hypothecation of the cargo, but so natural is it to expect one in such a situation to supply his owner's necessities from their own resources, that if ship, freight, and cargo be hypothecated in separate bonds, the Court of Admiralty will exhaust the proceeds of ship and freight before calling upon the owners of cargo to contribute. Indeed a lien on cargo for the uses of the ship is said impliedly to include ship and freight also. The law expects him, however, to communicate with the owners of ship or cargo before exercising any of 5 Benson v. Duncan, 3 Exch. 655, 666; S. C., 18 L. J. (Ex.) 172, 173. 2 Maclachlan on Shipping, 141 167. 3 Per Jervis, C. J., in Stainbank r. Fenning, 11 C. B. 88. 4 The Constancia, 10 Jur. 845; Maclachlan on Shipping, 706. 5 Maclachlan, 706. his extraordinary powers of borrowing, except where the opportunity of communication is not correspondent with the existing necessity. The right to hypothecate, usually exercised in countries other than that of the owners' residence, may be resorted to even in a port of the country where his owners reside, provided the master have no means of communicating with them, and there is no other mode of escaping from the pressure of the necessity.2 gage or pawn. This power of the master is confined to hypothecation, Power to hypothecate, strictly and properly so called, as distinguished either from not to morta mortgage, which transfers the property, or a pledge or pawn at common law, which gives such a lien on the chattel as is void without actual possession. Hypothecation gives a maritime lien which exists independently of possession, and which may be enforced against the subject of it, through the medium of legal process on the termination of the voyage; moreover it is essential to the validity of hypothecation, that the sea risk should be incurred by the lender, and that the privilege or claim should take effect only in the event of the ship's safe arrival.3 Hence, where the master, besides drawing bills on his owners, also executed an instrument purporting to be an hypothecation of ship, cargo, and freight, whereby the merchant forbore to take maritime interest, and the master took on himself and his owner the risk of the voyage, making the money payable in any event, it was held that this was beyond the scope of his authority as agent, and did not, therefore, bind his owner to the merchant who had advanced the money.* But as instruments of hypothecation are the creatures of 1 Wallace v. Fielden, 7 Moore, P. C. 398, 409; The Hamburgh, coram P. C., 33 L. J. (Ad.) 116; Kleinwort & Co. v. Cassa Maritima of Genoa, 2 App. Cas. 156; Maclachlan, 141, 147. 2 La Ysabel, Bozzo, 1 Dods. Ad. 273; The Trident, Simson, 1 W. Rob. Ad. 29. 3 See the judgment of Jervis, C. J., in Stainbank v. Fenning, 11 C. B. 88, and of Parke, B., in Stainbank v. Shepard, 13 C. B. 441. Stainbank v. Fenning, 11 C. B. 51; Stainbank . Shepard (in the Exch. Chamber), 13 C. B. 418. |