Power to sell portion of cargo. Amount which the owner of the goods sold is. entitled to recover. necessity and distress, and usually contain the language of commercial men and not of lawyers, they receive a liberal construction. If, therefore, the risk should not be mentioned in express terms, yet it will suffice, if it can be fairly and reasonably inferred from the whole document, that it was the intention of the parties to make the repayment of the money dependent on this contingency.2 The sale of portion of the cargo by the master for repairs of the ship in a port of distress, stands on the same conditions as his other borrowing powers, and is of the nature of a loan from the owner of the goods. It is only to be exercised for the purpose of enabling the ship (or a substituted ship as it should seem) to proceed with the cargo, or the residue of it, on the voyage chartered or insured; and, if the master unduly puts an end to the voyage insured, it is held in the United States, apparently on very good grounds, that the master is not justified in selling any part of the cargo for repairs for a new voyage.1 The owner of the goods, whether or not the ship afterwards arrives at her destination, is entitled to recover as against the shipowner in respect of the goods so sold; and he may claim, at his option, either the price for which the goods actually sold at the port of distress, or, the amount for which they would have sold at the port of discharge. 1 Maclachlan on Shipping, 62. 3 See the judgment of the Exche- • Watt v. Potter, 2 Mason, R. 77; 3 Kent, Com. 173. 5 Campbell v. Thompson, 1 Stark. 490; Richardson v. Nourse, 3 B. & Ald. 237; see Hopper v. Burness, 1 C. P. Div. 137. Per curiam, Atkinson v. Stephens, 7 Exch. 567, 573, 575; Alers v. Tobin, Abbott on Ship. 256; Hallett v. Wigram, 9 C. B. 580; It is singular that doubts should have been raised about the shipowner's liability for the price of the goods sold by his captain, in case the ship is afterwards lost before arrival. Lord Tenterden inclines to the opinion of Emerigon as the more reasonable, viz., that the money is only payable in case of the ship's arrival, on the ground that the merchant is thus not placed in a worse condition than if his goods had not been sold, but had part only of cargo. As this power of selling the goods of the shipper for the Right of sale for repairs repairs of the ship is conferred for the sake of ultimately can extend to procuring the arrival of some part of the cargo in the repaired ship, it extends to the sale of part only of the cargo, and not of the entirety; for it is not to be presumed to be for the interest of the shipper that the whole should be sold, in order to enable the ship to proceed empty to her port of destination.1 cargo may be hypothecated. On the other hand, the master may well hypothecate the But the whole entirety of the cargo, as that may be for the benefit of the whole, by providing means for forwarding the whole to a proper market, where it may realize far more than the amount raised on hypothecation, and the expenses of the loan. It will be sufficient here to have pointed out thus generally the extent and limits of this power, reserving any particular instances of its exercise for a more detailed examination in subsequent parts of this work.3 The point of the preceding inquiry was, the extent of the Power of the master's power to hypothecate ship and cargo, or sell part of master to sell ship, or the her cargo for the purpose of repairing the ship, and enabling whole cargo. her to prosecute her voyage. The cases now to be considered are those in which the further prosecution of the enterprise has become hopeless-where the ship cannot be repaired or the cargo forwarded-under which circumstances, by a still further extension of his powers, he is justified, from the paramount necessity of the case, in selling the ship or the whole of the cargo, or both.1 It is obvious that nothing but a case of absolute and supreme necessity, such as sweeps all ordinary rules before remained on board; Abbott on Shipping, pp. 257, 279, 10th ed. See the authorities considered, Maclachlan on Shipping, 440-443. 1 Freeman v. East India Co., 5 B. & Ald. 617; per curiam, Duncan v. Benson, 1 Exch. 537, 555. 2 The Gratitudine, 3 Rob. Rep. 240; and see Duncan v. Benson, 1 3 See post, Part III., Chaps. IV., 4 See Maclachlan on Shipping, 156, 159. Nature of this power as vested in the master by the necessity of the case. Limitations on this power, it, can justify such a sale on the part of the master. He is employed, as servant of the owners, to navigate the ship, and, as agent for both the shipowner and the merchant, to carry the goods to their port of destination; and his disposal by sale of that which he is thus entrusted to navigate or convey, would in ordinary cases be the mere unauthorized act of a servant manifestly exceeding his commission. Extreme emergencies, however, may arise in which the master, at a distance from his home port, and without available opportunity of consulting either the shipowner or the merchant, has no alternative left him, acting with perfect good faith as a prudent and skilful man, and for the best interests of all concerned, but to sell the property entrusted to his charge. What those circumstances and what that emergency may be which will justify him in thus acting, we shall have frequent occasion to consider, in treating of the question of constructive total loss on ship and goods: we therefore confine ourselves here to a brief statement of the nature of the power, and the limitations on its exercise. The nature of this power has been thus expressed by Parke, B. :-"The master has, by virtue of his employment, not merely those powers that are necessary for the navigation of the ship, and the conduct of the adventure to a safe termination, but also a power when such termination becomes hopeless, and no prospect remains of bringing the vessel home, to do the best for all concerned, and therefore to dispose of her for their benefit."1 If the ship be driven ashore and wrecked to pieces, or no as it relates to longer retains the character of a ship at all, the master is sale of ship. clearly justified in selling the remains of the wreck. But this is an extreme case. If the master, after the utmost endeavours, is compelled to renounce all hope of bringing her home, either on account of the physical impossibility of extricating her at all with the means at his command, or of his inability to find the 1 Hunter v. Parker, 7 M. & W. 342. 2 Cambridge v. Anderton, 2 B. & Cr. 691. necessary funds for the purpose,-in such case, if the danger is imminent, and delay likely to prove destructive, the master is justified in selling the ship as she lies, although at the time of sale she still retains the character of a ship.1 Thus, to take the case put by Lord Stowell, in The Fanny and Elmira, of a ship cast away in a foreign country, where there is no correspondent of the owners, and no money to be had on hypothecation to put her in repair, and all this at such a distance from the home port that the ship may rot before the master can hear from his owners, our Courts in such a case have held a sale by the master to be justifiable.2 The exercise, however, of this power is most jealously watched by the English Courts, and rigorously confined to cases of extreme necessity, a necessity that leaves the master no alternative as a prudent and skilful man, acting bonâ fide for the best interests of all concerned, and with the best and soundest judgment that can be formed under the circumstances, but to sell the ship as she lies.3 If he come to this conclusion hastily, either without sufficient examination into the actual state of the ship, or without having previously made every exertion in his power, with the means then at his disposal, to extricate her from the peril, or to raise funds for her repair," he will not be justified in selling, even though the danger at the time appear exceedingly imminent." 1 Robertson v. Clarke, 1 Bing. 445; Mount . Harrison, 4 Bing. 388; Hunter v. Parker, 7 M. & W. 342. 2 The Fanny and Elmira, Edw. Ad. 117; see also Read v. Bonham, 3 B. & B. 147; The Margaret Mitchell, Jur., N. S. 1193; Swab. Ad. 382; The Glasgow, Swab. Ad. 145; The Bonita, Lushington's Ad. 252. 3 Alcock v. Royal Exch. Co., 13 Q. B. 29; Knight v. Faith, 15 Q. B. 649; see Farnworth v. Hyde, 34 L. J. (C. P.) 207. This latter case went off on appeal upon the comparison M. of expenditure with value which in the result defeated the constructive total loss claimed against the underwriters; L. R., 2 C. P. 204. Hayman v. Moulton, 5 Esp. 65; Reid v. Darby, 10 East, 143; Doyle v. Dallas, 1 Moo. & Rob. 48. 5 Gardner v. Salvador, 1 Mood. & Rob. 118; The Fanny and Elmira, Edw. Ad. 117. 6 Idle v. Royal Exch. Co., 3 B. & B. 151, in which the Court of King's Bench reversed the judgment of the Common Pleas which had been given A A In the United In France. A mere difficulty in procuring the necessary funds1 or the necessary materials for repairs, although it may be very considerable, and such as to impose great sacrifice of time and money, will not justify the master in selling instead of repairing. In the United States, the limitations upon the exercise of this power do not seem to be even yet very certainly defined. In some cases a more extensive liberty than that allowed by the English rule, has been avowedly conceded, and the position advanced, that the master may sell in all cases where he has good reason to believe that the owner would elect to abandon, i.e., in all cases of constructive total loss.3 On the other hand, the stricter doctrine of the English law has been asserted and maintained in more recent decisions of the Courts of Massachusetts, which derive additional sanction from the opinion of Chancellor Kent, who declares "the strict rule to be the one best supported by reason and authority." 5 In France, the Ordonnance de la Marine, following in this respect the maritime laws of the middle ages, absolutely prohibited the master from selling the ship in any case, except under the special direction of the owners; the same absolute prohibition was contained in the draft of the new Code de Commerce: but on strong representations of the mischiefs that might ensue from so rigorous a rule, it was relaxed, and the sale of the ship by the master was permitted in the sole case "of innavigability legally certified" (innavigabilité légalement constatée), that is, as Boulay-Paty in favour of the right to sell; 8 Taunt. 1 Somes v. Sugrue, 4 C. & P. 274. 3 American Ins. Co. v. Center, 4 Wendell's (Sup. Court) R. 45. Gordon v. The Massachusetts Fire and Mar. Ins. Co., 2 Pickering's R. 249; Hall v. The Franklin Ins. Co., 9 Pickering's R. 466. 5 3 Kent, Com. 173, 174, note; Accord. 2 Parson, Ins. 147. The Jugemens d'Oleron, art. 1; the Laws of Wisby, art. 13, and those of the Hanse Towns, art. 57, expressly prohibit the master from selling the ship in any case; 2 Boulay-Paty, Droit Mar. 85. 7 Ord. de la Marine, liv. ii. tit. 1, art. 19. |