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sometimes a question of difficulty to know when the employment of a pilot is imperative and when such duty ceases; but if a vessel be under the care of a compulsory pilot he is not regarded as the servant of the owner. Indeed, sect. 633 of the Merchant Shipping Act, 1894, expressly declares :

An owner or a master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship, within any district where the employment of a qualified pilot is compulsory by law.

In like manner the captain of a man-of-war is not accountable for the acts of his officers (p). So, too, as explained in Stone v. Cartwright (q), a bailiff, steward, or manager is not liable for the acts of the servants whom he appoints.

In Quarman v. Burnett (r), it is observed by Parke, B. :—

The liability by virtue of the principle of relation of master and servant must cease where the relation itself ceases to exist; and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another; consequently, a third person entering into a contract with a master, which does not raise the relation of master and servant at all, is not thereby rendered liable.

Such expressions, however, must not be understood to interfere with the general rule that principals are answerable for the acts of their agents within the scope of their employment. Thus litigants may be liable for the acts of their solicitors in the course of litigation (s), and merchants for the conduct of their factors or

spot where the collision took place. The Court took the view that whether that were so or not, in the circumstances the owners were not liable. This decision was followed in The Charlton (1895), 73 L. T. (N. S.) 49. See also Ritchie v. Bowsfield (1817), 7 Taunt. 309; The Stettin (1863), Br. & Lush. 199; The Iona (1867), L. R. 1 P. C. 426; The Velasquez (1867), L. R. 1 P. C. 494. Somewhat inconsistently, the owner has sometimes been regarded as liable for the contributory negligence of the pilot. See judgment of Lord Blackburn in Spaight v. Tedcastle (1881), L. R. 6 A. C. 217. It is to be observed that the exemption does not apply when the pilot has to be selected out of a limited class: Martin v. Temperley (1843), 4 Q. B. 298; and see also The Guy Man

nering (1882), L. R. 7 P. D. 52 and 132; The Prins Hendrik, [1899] P. 177, cases in which the pilot had not control of the navigation. In The Schwan; The Albano, [1892] P. 419, the evidence was that a defective look-out helped to cause the accident; therefore the owners were held liable.

(p) Nicholson v. Mounsey (1838), 15 East, 384; but see as to liability of master of a merchant ship, who is for some purposes regarded as owner, Maude and Pollock (4th ed.) i. 155; Story on Agency, sect. 317.

(q) (1795), 6 T. R. 411.

(r) (1840), 6 M. & W. 499, 509; Stone v. Cartwright (1795), 6 T. R. 411.

(s) Collett v. Foster (1857), 2 H. & N. 356; and compare Smith v. Keal (1882), 9 Q. B. D. 340,

agents (t). The responsibility of masters is but an application of a general rule (u).

Masters are liable to third persons for the consequences of negligence in employing incompetent servants.

This question has usually arisen in actions brought by servants against masters when the defence of common employment is in question. It may, however, arise otherwise: being liable to employees who suffer from their negligence or recklessness in employing men who have no skill, masters are not less liable to strangers (x).

(t) Grammar v. Nixon (1725), 1 Str. 653; Hern v. Nichols (1701), 1 Salk. 289; on the other hand, Lucas v. Mason (1875), L. R. 10 Ex. 251.

(u) As to this point, see Haseler v. Lemoyne (1858), 28 L. J. C. P. 103; remarks of Bramwell, B., at p. 344, in Udell v. Atherton (1861), 30 L. J. Ex. ; Lindley on Partnership, 6th ed., 158; Wharton on Agency, sect. 19; Story on Agency, sect. 308, and Mr. Green's note to sect. 451. Probably the correct view is that the servant is one kind of agent, the extent of whose authority is to be inferred from the nature of his employment.

(x) Wilson v. Merry (1868), L. R. 1 S. & D. 326. If a master negligently suffered a volunteer, who was incompetent, to engage in his work, and some one was thereby injured, no doubt the master would be liable. In Wanstall v. Pooley (1841), 6 C. & F. 910, n., the Queen's Bench decided that a cornfactor, whose business was managed in his absence by his sister, was liable for the negligence of a tipsy servant, whom she had sent with corn to a customer. See also Wheatley v. Patrick (1837), 3 M. & W. 650. In his Leading Cases, p. 657, Mr. Bigelow observes that a servant who merely hires labourers for the performance of the master's work is not in the situation of a sub-contractor, and cannot be held liable for damages caused by the negligence of such labourers: " he thinks an action would lie against the master. Addison, Torts, 116 (7th ed.); Stone v. Cartwright (1795), 6 T. R. 411; Wilson v. Peto (1821), 6 Moore, C. P. 47. See Wright v. Leth


bridge (1891), 63 L. T. (N. S.) 572. It has, in fact, been broadly laid down that, if a servant employs another person to do his work, or assist him therein, the master is liable for an injury resulting from such person's acts (Wood, 588). No doubt, in Booth v. Mister (1835), 7 C. & P. 66, an action for injuries by the driver of a cart-the evidence being that the defendant's servant was in the cart, but that a person not his servant was drivingAbinger, C.J., ruled that it was the same as if the defendant's servant had driven. But he reserved the point, and it was never argued. If the evidence had been that the servant knew nothing of the driver, or that he knew him to be inefficient as a driver, the master would be liable on the principle of Engelhart v. Farrant, [1897] 1 Q. B. 240, viz., that the servant's negligence was the "effective cause of the injury. In Althorf v. Wolfe (1860), 8 Sm. N. Y. 355, the defendant had set his servant to shovel snow and ice off the roof of a house. The servant procured the assistance of A. B. was injured by the fall of the ice; it did not appear whether the ice was thrown by the servant or A.; the defendant held responsible (two judges dissenting). One of the judges based his decision on the ground that the servant was entitled to procure aid. It is submitted that the point ought to turn on the question whether he was acting within the scope of his authority in employing A. See on this point the remarks of A. L. Smith, L. J., in Gwilliam v. Twist, [1895] 2 Q. B. at p. 88.


Public officers under Government are not responsible for torts committed by their subordinates.

Thus in the well-known case of Lane v. Cotton (y), the PostmasterGeneral, it was held, incurred no responsibility for the loss of letters in the office by reason of the negligence of an inferior officer; and in Whitfield v. Lord le Despencer (z), decided in 1778, it was held that case did not lie against the Postmaster-General for a bank note which was stolen by one of the sorters out of a letter put into the Post Office; inasmuch as the relation of master and servant does not subsist between the head of a Government department and his subordinates. Nor have the Telegraph Acts, 1863 and 1868, made any change in the Postmaster-General's position in that respect (a). The principles upon which a master or employer is held answerable for the acts of servants do not apply to the Crown.

If the master or employer is answerable upon the principle that qui facit per alium facit per se, this would not apply to the sovereign, who cannot be required to answer for his own personal acts. If it be said that the master is answerable for the negligence of his servant, because it may be considered to have arisen from his own misconduct or negligence in selecting or retaining a careless servant, that principle cannot apply to the sovereign, to whom negligence or misconduct cannot be imputed, and for which, if they occur in fact, the law affords no remedy (b).

Sometimes the Legislature has expressly relieved Government officials from liability for the acts of their subordinates. See as to this, O'Grady v. Cardwell, in which the defendant, Secretary of State for War, was held not personally liable in an action for breach of a contract entered into by him on behalf of the War Department (c).

(y) (1701), 1 Lord Raym. 646; 12 Mod. 473.

(z) Cowper, 754; Nicholson v. Mouncey (1812), 15 East, 384. See Story on Agency, 319.

(a) Bainbridge v. The PostmasterGeneral, [1906] 1 K. B. 178.

(b) Canterbury V. Attorney-General (1843), 1 Phill. 306. (Petition of right against the Crown by the Speaker of House of Commons for loss of furniture, plate, pictures, by a fire alleged to have been caused by the negligence of servants of the Commissioners of Woods and Forests.) See Farnell v. Bowman (1887), 12 A. C. 643; Att.-Gen. of Straits Settlements v. Wemyss (1888), 13 A. C. 192. In Gilbert v. Corporation of Trinity

House (1886), 17 Q. B. D. 795, which was an action for damages for negligence, it was held that the defendants were not servants of the Crown so as to be exempted from liability to such an action. As to the liability of a sheriff for the acts of a bailiff, see Wood v. Finnis (1852), 7 Ex. 363; and 51 & 52 Vict. c. 43 (County Courts Act, 1888), s. 35, as to the liability of a high bailiff for the acts of his bailiffs. And see sects. 52, 54 and 55 of the same Act.

(e) (1873), 21 W. R. 340. See Kirk v. The Queen (1872), 14 Q. B. D. 558, where there was a motion for an injunction by a suppliant under a petition of right against the Secretary of State for War.

This exemption does not extend, as was held in Sutton v. Clarke (d) and Hall v. Smith (e), and other cases, to trustees and other bodies which perform statutory duties, and the profits of which are appropriated to public purposes (f), or levied for their own profit (g). But where there were no tolls leviable, and the powers under the statute, for the neglect of which the defendants were sued, were purely discretionary, there was held to be no liability (h).

A master is not liable for injuries caused by his servant's negligence if they might have been avoided by reasonable care on the part of the person injured.

What constitutes such contributory negligence as will disentitle a plaintiff to recover is a question which does not belong exclusively to the Law of Master and Servant, and it need not here be discussed (i).

(d) (1815), 1 Marsh. 429. (e) (1824), 2 Bing. 156.

(f) Mersey Dock Trustees v. Gibbs (1866), L. R. 1 H. L. 93.

(g) Parnaby v. Lancaster Canal Co. (1839), 11 A. & E. 223.

(h) Forbes v. Lee Conservancy Board (1879), 4 Ex. D. 116. See Coe v. Wise (1864), 5 B. & S. 440.

(i) Lax v. Darlington (1879), 5 Ex. D. 28; Ellis v. London & South Western Rail. Co. (1857), 2 H. & N. 424; Smith v. South Eastern Rail. Co., [1896] 1 Q. B. 178. See Beven's Negligence in Law (2nd ed.), Bk. I. ch. v; and ch. xxvi, infra, at p. 304; and the notes on the Employers' Liability Act, 1880, in pt. ii.


Note on the history of a master's liability for his servant's torts.

It is sometimes said that the present law as to the liability of a master for the torts of his servants is a relic of the time when services were performed, as a rule, by slaves or villeins who were the property of their masters, and for whose acts they were naturally held responsible. This plausible view is not borne out by the authorities. No clear trace of the modern doctrine is to be found in early authorities, such as Bracton. One of the few passages in his treatise bearing on the subject is the following (de Corona, f. 158), where, discussing wrongs committed by servants, he puts this case: "But what if the servant of any one, in the absence of his lord, has seized the cattle of any tenant of his lord, and the tenant himself complains concerning the servant that he has seized his cattle unjustly, and detained them against bail

and surety, and that servant has called the Court of his lord to warrant, and the Court has warranted to him concerning the service? The servant shall be released and the Court shall answer for his own act. But cannot the Court answer without the lord, when the service touches the lord himself? Yes, so that the judgment be amended. But if the cattle be seized without a judgment of the Court, and have been claimed by the lord himself when he was present, and he himself has refused them on bail and not surety, each shall be liable, as it appears, the one for the seizure and the other for the refusal of release. And although his lord himself has avowed the seizure of his servant, he does not acquit the servant but he charges himself, and each is liable for the act of the servant, the servant because he seized it, and the lord doubly, because he avows the act of his servant, and because he refuses (the release of the thing seized)." "Likewise, let it be, that nothing has been done by the Court, nor by the lord of the Court, but only by the servant, as if the servant without the lord or without the Court, has levied a tax upon the tenants of his lord as villeins who are free, or who say that they are perchance, when they are serfs, and afterwards, when he has of his own authority made a distress, and the cattle upon the complaint of the tenant have been released by the viscount upon bail and surety, and a complaint has been made only respecting the servant without the lord, it is asked whether the servant can or ought to answer without the lord, and to bring the case to judgment without him? In which case, it will have to be inquired from the lord, whether he will avow the act of his servants or not, but if not, then the lord may amend it, but if he has avowed, or not amended it, he makes the injury his own, if there has been any injury." Neither in that passage nor any other, as far as I know, in Bracton, is there anything to show that a master was regarded as liable for the conduct of his villein when acting without orders. Apparently the master was liable for the acts of his villeins when he had ratified them, or what is the same, had availed himself of what was done or refused to release what had been seized by them. I am not aware of any case in the Year Books, or any passage in Plowden's Reports, Rastell, or Fitzherbert, which clearly lays down the doctrine now accepted. No doubt, instances are to be found in which actions were brought (for example, Bealicu v. Finglam, 2 H. IV., fol. 18, pl. 6), against masters for the acts of their servants on a custom of the realm. Thus a person was held answerable for the spread of fire when it was due to his guest or servant, Cowell's Institutes, 207: and actions on the case lay against innkeepers for the loss of goods by their servants. That the law was not understood as it is now will be seen from the following citations from Rolle's Abridg., Action on Case, 95: “If a servant, who is my merchant, sells an unsound horse or other chattel at a fair to a man, no action lies against the master for the deceit, for he did not command the servant to sell this to any one in particular:"9 Hen. VI., 53. But if the servant by direction and contrivance of the master, sells to any particular man, if it proves unsound, an action lies against the master, for it is his sale. If the servant of a tavern-keeper sells wine to another, which is corrupt, action lies against the master, although he did not tell the servant to sell to the particular man: Southern v. How, Cro. Jac., 468. See Noy's Maxims, c. xliv.

Other authorities might be cited to show that a master was not supposed to be liable if a servant abused his authority. Thus Popham, C. J., lays it down in Waltham v. Mulgar, Moore, 776 (3 James I.), that "where a master sends his servant to do an unlawful act he shall answer for him if he made a mistake in doing the act. But where he sent him to do a lawful act as here to take the goods of the enemies of the king, and he takes the goods of a friend, the master shall not answer. If a master send his servant to market to buy or sell, and he rob or kill by the way, the master shall not answer, but if he sent him to beat one, and he kill or mistake the person and kill another, the master is a murderer." Dodderidge argued that the master was answerable in all public matters. In this case the question was whether the owner of a vessel with letters of marque to seize Spanish ships was responsible to the subjects of a friendly State whose ship had been wrongfully taken. It

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