tract, as to the owner's responsibility, and the authority of the master. But the same doctrine has been elaborately maintained by the same Court in another case; Arayo v. Currell (a)." [He read at length the judgment of Martin J. in that case.] The case of The Nelson (b) was decided on purely technical grounds, and has no bearing here. [Blackburn J. 3 Kent. Comm. p. 163, note (c), 10th edit., runs thus "It is an established principle, that the authority of the master as to the employment of the ship, or repairing the ship, or supplying the ship with provisions, abroad as well as at home, is limited by the express or implied authority of the laws of his own country, or the usage of trade, or the business of the ship, or the instructions of the owner, and he cannot bind the ship or owner beyond these limits; Pope v. Nickerson (c). Story J., in this case, after citing and reasoning on the foreign authorities, arrives at the conclusion that the master can make no contract in a foreign country, which shall bind the owners of a ship, except as to what they expressly authorize, or the general. law of his own country has recognised, and that then it will bind them no further than that law binds them, whether it be in personam or in rem.” The COURT said the question was a most important one, and they would take time to consider it. Cur. adv, vult. The judgment of the Court was delivered in Trinity Term, 1864, May 31st. BLACKBURN J. In this case it appears on the first (a) 1 Louis. R. 528. (b) 1 Hagg. Adm. Rep. 169. (e) 3 Story R. 477. 480. 1865. LLOYD V. GUIBERT. 1865. LLOYD V. GUIBERT. count of the declaration that the master of the ship "Olivier," duly appointed by the defendants, her owners, entered into a contract for the carriage of the plaintiff's goods from the West Indies to Liverpool; that the vessel in the course of the voyage put into Fayal as a port of distress; that there the master properly hypothecated the ship, freight and cargo to raise the necessary funds for repairing the vessel, by which the cargo was brought to this country; that, on its arrival proceedings were taken in the Admiralty Court by the holders of the hypothec, and that the plaintiff was obliged in order to redeem the cargo to pay them money. The plaintiff sued on an implied promise by the defendants to indemnify him. The first plea is that the contract under which the goods were to be carried was under a charter-party and not otherwise; that the charter-party (in which the ship was described as a French ship) was made between the plaintiff and the master at St. Thomas, for a voyage from Haiti to a port in France, or to London or Liverpool at the option of the plaintiff; that the ship was French, the defendants were French subjects domiciled and trading in France, and that according to the law of France "it is lawful for the owners of any French ship in all cases to free themselves from the acts and engagements of the master thereof in all that concerns the ship and voyage by the abandonment of the ship and freight." The plea then negatives any express authority given to the master or any subsequent ratification of his acts by them, and avers an abandonment of the ship and freight such as by the law of France would free them from the acts and engagements of the master. To this plea there is a demurrer; and the principal question is whether that plea is good. If the master of the ship had the same authority to bind his owners absolutely as the master of an English ship would have had in similar circumstances, the facts stated on the record would, according to the decision of the Exchequer Chamber in Benson v. Duncan (a), have given rise to an implied contract on behalf of the owners absolutely binding them personally without any limit to indemnify the plaintiff; and this was not disputed on the argument. But on this demurrer, the statement of the French law in the plea must be taken to be accurate, and according to that the authority given by French owners to their French master is not an authority to bind them absolutely by any acts or engagements of his, but a limited authority only to bind them by such acts and engagements, subject (as far as the personal liability of the owners is concerned) to a defeasance on their abandoning the ship and freight. We think that the power of the master to bind his owners personally is but a branch of the general law of agency. And it seems clear that if a principal gives a mandate to an agent containing a condition that all contracts which the agent makes on behalf of his principal shall be subject to a defeasance, those who contract through that agent with notice of that mandate (containing such a limit on his authority) cannot hold the principal bound absolutely. And we think that, as far as regards the implied authority of the master of a ship to bind his owners personally, the flag of the ship is notice to all the world that the master's authority is that conferred by the law of that flag; that his mandate is contained in the law (a) 3 Exch. 644. 1865. LLOYD V. GUIBERT. 1865. LLOYD GUIBERT. of that country, with which those who deal with him must make themselves acquainted at their peril. There is a singular absence of authority on this subject in our own Courts, but the point has twice come before the Courts in America, and the decisions are opposed to each other. In Arayo v. Currell (a) the Court in Louisiana held that the limit of the liability of the owners of a Louisiana ship was governed by the law of Mexico where the contract was made by their master, and not by the law of Louisiana, treating the question as one depending on the law of nations. In the more recent case of Pope v. Nickerson (b), in a case very similar in its facts to the present, the Court of Massachusetts dissented from Arayo v. Currell. Mr. Justice Story delivered an elaborate judgment, in which he collects and examines the continental authorities as well as those of England and America, and he treats the question as depending on the law of agency, and comes to the conclusion that the limit of the liability of the owners for the acts of their master depended upon the law of Massachusetts where the ship was owned, and not on the law of the country where she was chartered, or of that where the goods of the plaintiff's were sold by the master. Neither of these decisions is binding on us, but we have derived great assistance from them. The very learned judgment of Mr. Justice Story just referred to affords a complete answer to a plausible argument, in which it was sug- authority of a partner or other agent clothed with a general power. The authorities cited by Mr. Justice Story shew that the power given by the common law to the master to bind his owners personally without any limit, depending upon that to the value of the ship and freight, is rather the exception than the rule in maritime law. Certainly they shew that there is no such immemorial rule of maritime law as that contended for. Reason and convenience are certainly in favour of authority of the master to bind his owners should be fixed and uniform according to the law of his flag, which is known to both, rather than that it should vary according to the law of the port in which the ship may happen for the time to be. We think therefore that the plea is good. holding that the There are two other questions which we have to decide arising on the demurrers to the replications. The second replication to the plea is that the plaintiff had elected that his goods should be carried to England, and that the law which governs St. Thomas where the charter-party was made, and that which governs Fayal where his goods were hypothecated, are similar to that of England, and not to that of France. On the demurrer to this replication we must assume that the foreign law in those countries is as asserted, but we think that the replication affords no answer to the plea. The law of the place where a contract was made, and that of the place where it was to be fulfilled, are very important on any question as to the validity or the effect of the contract; but as we have already said, we think the question before us depends not on the validity or effect of the contract, but on the authority of the 1865. LLOYD V. GUIBERT. |