Abbott, 76, ham. 5 Burrow, 2727, French v. Backhouse. Bell v. Hum phries. not hold them in future to be managing owners, it was Ogle v. Wrang- adjudged, that the plaintiff who had repaired the ship not having been advertised of this, should yet recover against the first owner. A ship's husband and part2 Starkie, 345, owner cannot, however, effect insurances to bind his fellows, for each share is a distinct property, and it is the business of each individual separately to protect it. Nor can such an agent pledge his owners to the expenses of a law-suit. Nevertheless, if persons be in partnership a very different feature is presented, and it 4 Campbell, 67 has been determined, that an order to insure given by Hooper v. Lusone partner will render the rest liable. 6 Dow, 135, Campbelly Stein. by. 1 Starkie, 296, Pasmore v Bousfield. 1 East, 20, Wright e, Hun ter. 2 Rose, 93, in ex parte Bland; Generally speaking, those who are interested in aliquot parts of a ship are liable in the aggregate if they employ a joint-agent, for they are trusted as partners. And where a receipt for the money was signed, the remedy against the part-owners was not gone, the money never having been paid. Ambler, 269 Tolson v. Hallett. 2 Vernon, 643, Speerman v. Degrave; 2 Dow, 29, Stewart v. Hall. And see 1 Vesey, sen. 154, Buxton v. Snee. So, where the master bought provisions and failed, the doctrine maintained was, that, if the owners paid their account, yet if he paid not the creditors, they must stand liable. All the partners should join in an action for damages which they may have sustained, that a defendant may not be harassed by a multiplicity of suits, and it is of course advisable in actions against part-owners to join the whole. But if supplies be ordered by one proprietor 1 Starkie, 338, who conceals the fact of there being others, and thus obtains credit, he cannot make it a part of his defence that those other persons should have been made dev. Chippenden. fendants in common with himself (b). Baldney v. Abbott, 76, Doo (b) The doctrine of pleading in abatement which does not belong to a general rule of this nature may be found at length in Abbott on Shipping, pp. 81-85. At the conclusion of a voyage the accounts must necessarily be adjusted, and the course of proceeding See 2 Equity Cases abridged, for this purpose is by a suit in equity. If, however, 7,Doverv. Opey. the majority have settled with the Master, the Court 1 Vernon, 465, of Chancery will not interfere to unravel the particu- Robinson v. Thompson. lars. Yet if the ship's husband will not settle after having made a special agreement to do so within a reason- 13 East, 538, able time, he will be amenable at common law to the Owston v. Ogle. owners. The bankruptcy of one part-owner does not operate See Abbott, 77. to give his assignees any enlarged right, so that if the bankrupt have not paid his share of the outfit, the residue of the proprietors may reimburse themselves by deducting his share. But where the bankrupt had paid Cowper, 469, so much money, and given notes for the remainder, and then failed, it was not allowed for his two part-owners to discharge his notes and so claim his share of a successful voyage. Smith v. De Part-owners being tenants in common, and not jointtenants, have no lien on the share of another for outfit or freight, and it was thus decided in bankruptcy by 2 Vesey and Lord Eldon, against the opinion of Lord Chancellor Beames, 242, Young ex parte; Hardwicke. 2 Rose, 76, Harrison ex parte, same point, overturning Doddington v. Hallett, 1 Vesey, sen. 497. Yet although they pay money to the amount of their shares, each of course remains liable for the remaining debt, if any, unless the tradesman should think to dis- Abbott, p. 84, Teed v. Baring. charge them specially. Of the Master. and conduct. The master must be a British subject. He must be His qualification natural-born, or naturalized, or a denizen, or have come under His Majesty's allegiance by conquest, or have served on board of a British man-of-war for three years. D Thompson v. The authority which he possesses over the vessel committed to his charge is very ample, and we have already seen how closely the owners are bound by his contracts. But, on the other hand, he is as strictly obliged to devote his time and services to his em1 Campb. 527, ployers; so that where a man thought proper to hire out his services to another, and the party who engaged him paid his employing owner, it was held that he could not sue the owner for the money thus received, though a small sum was allowed him for primage (c) at the Chief Justice's recommendation. And the master was not allowed in another case to retain a profit which he had received from the state of exchange upon a bill drawn by him upon his owners. Moreover, if a ship sustain any damage it is incumbent on the commander to advertise his employers immediately, and for want of so doing, the plaintiffs upon one occasion were prevented from recovering upon a policy of insurance as for an average loss. The vessel and its freight are in fact committed to his care with the most implicit confidence, and the law regards very severely a breach of that trust. Thus it is a capital felony for the cap. tain to cast away, burn, or destroy a ship to the prejudice of the owner, to run away with the cargo, or turn pirate. And by other statutes, to prevent masters from striking to pirates for reward, it is declared, that any ch. 6; 22 & 23 such gift shall be forfeited to the owners of the goods, 3 Campbell, 43, Diplock v. Blackburn. 1 Maule and Selwyn, 35, Gladstone v. King. 7 & 8 Geo. 4, ch. 29; 11 & 12 Wm. 3, ch. 7. 16 Charles 2, Charles 2, C. 11. (c) Primage is a small remuneration due from the shippers to the master and mariners for their trouble in loading the cargo. And where there was a written agreement for wages between the master and owners in which primage was omitted, so strong is the custom of trade in favour of the master, that he was allowed to recover back from the owners a sum received by them from the freighters in respect of primage. Ryan & Moody, 175, Charleton v. Cotesworth. and that any captain commanding a vessel of 200 tons burthen and furnished with 16 guns, and not making resistance, should be incapable of future command. liffe. The master has a very absolute dominion over his 1 Campbell, 60, crew, who are bound to obey him most implicitly. But Boyce v. Bayhe has not any judicial authority, so that it becomes his duty to place offenders under a guard and surrender them for trial upon his return home, or arrival at any place where there may be a competent tribunal. Though he may use moderate coercion to preserve discipline, to compel a passenger, for instance, to take the station assigned him upon the approach of an enemy. To continue the relation of his power over the ship; the master can order all necessary repairs, and useful articles; he can act as he considers most beneficial in any emergency, and his contracts with the mariners and other persons are obligatory upon his employers. 6 Robinson,227, 1 Term Rep. 73, Yates v. Thus he may incur a charge for occasional pilotage, The Nelson. and he may bind the owner by a promise to pay a sailor so much a month, on condition of his becoming a hostage, and this although the ship and cargo should be abandoned. Nevertheless, it is just necessary to observe, that this presumption of the master's power may be rebutted by showing that the creditor knew him not to be the managing person, or that his incompetency to Bland, ex parte. contract is a matter of general notoriety. It has been shown that money may be borrowed by the captain to procure necessaries, and that the owners are thereby pledged; but the manner of securing these advances to the lender is proper to be explained in this place, as it is peculiarly the master's duty. It is done by entering into an obligation called a bottomry bond, or by giving a bill of bottomry, whereby the ship and tackle are pledged for the advance, together with Hail. See 2 Rose, 91, 2 Dodson, 1, Sidney Cove. 3 Robinson,240, The Gratitudine. a high premium, the whole sum being lost to the lender if the ship be cast away or otherwise destroyed (d). But they cannot be entered into unless personal security be wanting. The security given when money is borrowed upon the cargo is a respondentia bond. And it is observable, that whenever the master is in a condition to pledge, or hypothecate the ship, he is at liberty to pledge the freight. And where a bond on ship and freight had been executed, but the holder having missed his opportunity of arresting the vessel on account of a deviation, the ship went another voyage, and was then 4 Robinson,245, detained by a creditor, it was held, that the freight of the last voyage was liable to the bond equally with the first which had been accounted for to the owners, though the Judge said, if a third party had become interested in the last freight, it did not certainly follow that his opinion would have been the same. The Jacob. 1 Maule & Sel wyn, 30, Thomson v. Royal Exchange As surance. There must be an utter loss to defeat the operation of a bottomry bond; the loss upon which an underwriter may be liable in full is no means coextensive, so that where a wrecked ship existed in specie, however the assured might have been entitled to abandon, Lord Ellenborough was quite clear that the borrower on bottomry remained liable. Supposing that the master should fail in his endeavours to obtain money upon the ship's security alone, it 1 Vesey, senior, seems, that he may charge the owners with a personal obligation, and hypothecate the ship in addition; but the lender should not then demand maritime interest. 443, Samsun v. Bragginton. Abbott, p. 125. And this leads us to consider more nearly the nature (d) Where the ship itself is not pledged as a security, but a re-payment of money with a high premium for the risk is required; this is rather a loan for a particular adventure, than a loan upon the ship. Abbott on Shipping, p. 119. |