to comply;(y) or if the transferee has given no value or consideration for the transfer of the bill of lading to him; (2) or if he act malá fide:(a) as, for instance, if he has notice at the time of the transfer that the original indorsement by the consignor was only made on a condition which had not not been fulfilled,(b) or has assisted in contravening the actual terms upon which the goods were sold by the consignor, or his reasonable expectations arising out of them, or his rights connected therewith ; (c) or if he had notice at the time of the transfer of the insolvency of the consignee; (d) or if the transferee, after the transfer, becomes jointly interested with the consignee in the adventure, and undertakes to pay for the goods.(e) A transfer of the bill of lading by the consignee to his factor, to whom the goods are consigned for the purpose of being sold by him on account of his principal, will not defeat the right of stoppage, although the factor is under acceptance to the consignee on a general account; though it would be otherwise if there were a specific pledge of the cargo, as if bills had been accepted on the credit of the particular consignment.(ƒ) § 399. And although the right of the consignor to stop goods in transitu is defeated in law by the indorsement of a bill of lading for a limited purpose, as for instance to secure a sum of money, it will still remain in equity, subject to a lien for the indorsee's demand, and its exercise will vest in the consignor a right to the surplus after discharging that lien.(g) The Judicature Act, 1873, enables all the courts to give effect to this doctrine.(h) (y) Newsom v. Thornton, 6 East, 17. (2) Newsom v. Thornton, 6 East, at 40; Rodger v. The Comptoir, L. R. 2 C. 393; Waring v. Cox, 1 Camp. 369. (a) Cuming v. Brown, 9 East, 506, 514; 1 S. L. C. 9th ed. 811. (b) See Barrow v. Coles, 3 Camp. 92. (c) Per Lord Ellenborough, 9 East, at p. 514. (d) Vertue v. Jewell, 4 Camp. at p. 33. (g) Spalding v. Ruding, 6 Beav. 376; Transfer of bill of lading for limited purpose, defeats right of stoppage to limited extent only. Generally. CHAPTER VIII. WHEN THE MASTER MAY BIND THE SHIPOWNER BY By Contracts relating to the usual Course of the Ship's Employment. § 400. THE master, as confidential agent of the owners, has an implied authority to bind them, by any legal contract, which he may make relating to the usual employment of a general ship.(a) His authority in this respect is very large and extends to all acts, which are usual and necessary for the use and employment of the ship. Constant usage shows that the master has this general authority; and his authority "to perform all things usual in the line of business, in which he is employed, cannot be limited by any merely private order or direction not known to the party dealing with him."(b) The course of the usual employment of the ship is evidence of authority given by the owners to the master to make for them and on their behalf a contract relating to such employment; and consequently a contract so made by him is esteemed in law to have been made by them.(c) And they will be bound by it, although made without their knowledge or approbation, and even against their orders, if the party, with whom the master contracted, had no knowledge that the master was acting without authority.(d) (a) Abbott on Shipping, 13th ed. 119; Kent's Com. iii. 161; Story on Agency, 116. (b) Per Jervis, C.J., Grant v. Norway, 10 C. B. 687; per Blackburn, J., Reynolds v. Jex, 34 L. J. Q. B. p. 255, quoting (d) Story on Agency, 443; Grant v. Norway, ubi sup.; Ellis v. Turner, 8 T. R. 531; Abbott, ubi sup. The master may bind the owners by letting the ship on a charter- Contracts party and taking shipments on freight, if such is the usual em- relating to ship's employ. ployment of the ship, but not otherwise; (e) or by any particular ment. engagement or warranty relating to the usual employment of the ship.(f) And in such case the owners will be liable on the contract of carriage in case of the loss of the goods from any cause other than an excepted peril.(g) His authority to bind his owners by signing bills of lading has been sufficiently discussed above. (h) His power to bind them by the sale of the ship, or the hypothecation of ship and freight, will be considered below. (i) He has authority in a foreign port, to settle accounts for freight, demurrage and delay, and all such matters; (k) or to commence an action in rem for injury by collision to the ship and cargo of which he is in charge. (7) If shipowner present, master has less power, § 401. "Ordinarily," says Mr. Justice Story, (m) "these incidental powers belong to the master only in the absence of the owner or employer of the ship; as, for example, when the ship is in a foreign port and not in the home port. (n) For, when the owner or employer is present, he is known to possess and is presumed to exercise his own right of general superintendence over the conduct of the ship and its concerns, unless some presumption of a delegation of authority to the master can be implied, either from the usage of trade, or from the particular employment of the ship, or from the conduct and proceedings of the parties. Even in but may even the home port, however, there are many acts, which are so invari- then transact matters usually ably confided to the master, as to amount to a positive delegation entrusted to of authority.(0) Thus, the master is ordinarily entrusted with the authority of shipping the officers and crew, (p) of superintending the ordinary outfits, equipments, repairs, and other preparations of the ship for the voyage,(q) of lading and unlading the cargo; and in cases of a general ship, of receiving goods on freight and of signing bills of lading for the same. (r) These are such (e) Story on Agency, 116; Reynolds v. Jex, 7 B. & S. 86; Grant v. Norway, 10 C. B. 687. (f) Rinquist v. Ditchell, Abbott, 13th ed. 125. But it is doubtful whether he can bind the owners by a stipulation in the charter-party for advances to himself against freight. Gibbs v. Charleton, 26 L. J. Ex. 321. (g) Boson v. Sandford, Carth. 58; Boucher v. Lawson, Rep. temp. Hardwicke, 85, 194; Abbott, 13th ed. 123; Ellis v. Turner, 8 T. R. 531. (h) §§ 330-333; 355, 356. 152. (1) The Reinbeck, 60 L. T. 209; supra $ 85. (m) Story on Agency, § 119. (n) This limit applies to his power of chartering the ship; per Brett, L.J., The Fanny; The Matilda, 48 L. T. 771. (0) Per Lord Campbell, Frost v. Oliver, 2 E. & B. at p. 305; Abbott, 13th ed. 132. (p) Including, it would seem, the employment of a pilot. See The Nelson, 6 C. Rob. 227. As to contracts for extra remuneration for special services, see Yates v. Hall, 1T R. 73; The Christiana, 5 (Irish) Jur. N. S. 63; § 506 inf. (q) But not to pledge the owner's credit for them, if he or a solvent agent ie at the port; Gunn v. Roberts, L. R. 9 C. P. 331; inf. § 407. (r) See Grant v. Norway, 10 C. B. 665. him. Master's implied authority limited to usual incidents of his official character, that notice of a positive prohibition would seem indispensable in order to affect third persons with his want of due authority to do the acts." § 402. But it must be borne in mind, that the master of a ship, on a foreign voyage, has no authority to bind his employer to everything, which he may deem to be, or which really may be, for the interest of his employer. (s) "The incidental powers of what is usual, the master, which we are considering, are limited to such contracts. and matters as relate to the usual employment and business of the ship. Thus, if the ordinary employment of the ship has been the carrying of cargoes on the sole account of the owner, the master has no implied authority to let the ship to freight, even in a foreign port. So if the ordinary employment has been to take goods on board on freight as a general ship, the master will not be presumed to possess authority to let the ship on a charter-party for a special and different business. And if the ship has been accustomed to carry passengers only, the master will not be presumed to possess authority to take goods on board on freight." (t) and to lawful acts. And although he may make contracts for the hire of the ship, he cannot vary one which the owner has made; or alter the voyage; (u) or substitute a new voyage for one, which has been agreed upon between his owners and the freighters;(x) or sign bills of lading for a lower rate of freight, than the owner has contracted for ; (y) or make freight payable to any other person than the owner; or execute a charter-party excluding the right of the owners to freight; (2) or sign bills of lading for cargo which has not been shipped ;(a) or bind his owners by a contract to carry freight free.(b) Nor can he authorise a broker to charter his ship in a foreign port before her arrival there, so as to bind the owner by a charter-party made in pursuance of such authority. (c) So, in the absence of proof to the contrary, it must be taken that the master's authority is limited to that which is lawful. If he does an act in contravention of the laws of his country, he is guilty of a breach of the implied orders of his owners. If, in seeking to carry out the purpose of his employment, he oversteps the law, he outruns his authority, and his owner will not be bound by what he does.(d) (8) Per Parke, B., Stainbank v. Shep ard, 13 C. B. 441. (t) Story on Agency, 121. (u) Grant v. Norway, 10 C. B. at p. (x) Burgon v. Sharpe, 2 Camp. 529. (z) The Sir Henry Webb, 13 Jur. 639; Walsh v. Provan, 8 Ex. 843; Reynolds v. Jex, 7 B. & S. 86. (a) Hubbersty v. Ward; 8 Ex. 330; supra § 332; Grant v. Norway, 16 C. B. 665. (b) Grant v. Norway, ubi sup. 771. (d) Wilson v. Rankin, L. R. 1 Q.B. 162. If the master executes a charter-party under seal, this will not When he may bind the owners, or enable the charterer to bring his action execute a deed. against them, unless the master was authorised by deed by the owners, to execute such a sealed instrument for them, (e) for it is a rule of our law, that a deed cannot be executed except by the person who is to be bound by it, or by another for him in his presence and by his direction, (f) or in his absence, by an agent duly authorised to do so by another deed.(g) For Matters which are Necessary for the Prosecution of the Voyage. § 403. We have already seen that the master is entitled to Generally. recover from the owners, and has a maritime lien for all his disbursements, properly made on account of the ship.(h) Further than this, as he is appointed by the owners for the purpose of conducting the navigation of the ship to a favourable termination, he possesses, as incident to that appointment, when he cannot communicate with his owners, or their agent, (i) an implied authority to bind them for all that is necessary to that end.(k) By virtue of this authority, he may pledge the credit of the owner for all such repairs, and for the supply of all such provisions, and may make all such contracts and do all such other things, as are reasonably necessary for the due and proper prosecution of the voyage, in which the ship is engaged.() Indeed, as has been seen above, (m) a master may, if it be clearly necessary to do so, even appoint another master in his place; although generally, an agent cannot delegate his power or duty without special authority; and the master so appointed by a master, may bind the owner in like manner as the original master might have done. not bound. But in order that the master's contract may be binding on the When owners owners, it must be shown either that they authorised him to contract on their behalf, or that he was acting, with their privity and consent, as their master. (n) And, in the absence of express authority, he has no power to bind the owners in respect of matters connected with the voyage, which are not necessary for its due prosecution.(0) Where for example, certain of the crew had sustained injury in weighing anchor, and the captain had them taken ashore and left them at a public-house, saying the owners would pay for (e) Horsley v. Rush, cited in Harrison v. Jackson, 7 T. R. 209. (f) Story on Agency, 51. (g) Ibid., 49. (h) Supra, § 73 et seq. (i) Infra, §§ 407, 408. (k) Per Parke, B., Beldon v. Campbell, 6 Ex. 889. (1) Per Lord Abinger, Arthur v. Barton, 6 M. & W. 138, 143; Beldon v. Campbell, 6 Ex. 886; Frost v. Oliver, 2 E. & B. 301. As to the master's autho- (m) § 18; 2 Parsons, Sh., 18. (n) Mitcheson v. Oliver, 5 E. & B. 419; The Great Eastern, L. R. 2 Ad. 88. (0) Organ v. Brodie, 10 Ex. 449. |