exigencies and emergencies may arise, in which the master becomes, of necessity, supercargo or consignee, or to speak more correctly, is clothed with whatever agency or authority may be needed to enable him to protect the property and interests intrusted to him. If the cargo is a perishable one, the master is bound to do all he can to preserve it.2 If a cargo of hides is liable to perish from worms and the heat of the vessel, at an intermediate port, it is the duty of the master to preserve them by having them beaten or ventilated. If goods are wet, he should, if it is possible, unpack and dry them. For this purpose he may open the packages.5 He is not, however, bound to repair the goods; nor to delay his voyage for the sake of the goods."

In case of capture the master should do all in his power to procure the restoration of the cargo, but he is not bound to act fraudulently. The question has arisen in the case of the seizure of the vessel and cargo for breach of a blockade, how far the act of the master in attempting to enter is to be considered as the act of the owner of the cargo. The general rule which has been laid down. is, that if the vessel sails with a full knowledge that the port of destination is blockaded, there is a presumption that this is done with the full knowledge of the owner of the cargo, and he is not allowed to prove the contrary; but if the blockade is proclaimed subsequently to the sailing of the vessel, the shipper is not bound by the act of the master in seeking to enter after being warned off. 10

The Gratitudine, 3 Rob. Adm. 240, 257; Vlierboom v. Chapman, 13 M. & W. 230, 239; Douglas v. Moody, 9 Mass. 548; Gillett v. Ellis, 11 Ill. 579. The Brig Collenberg, 1 Black, 170.

The Bark Gentleman, Olcott, Adm. 110. This case was reversed on appeal, 1 Blatchf. C. C. 196, but the law on this point was not controverted. See also Rogers v. Murray, 3 Bosw. 357.

'Chouteaux v. Leech, 18 Penn. State, 224; Propeller Niagara v. Cordes, 21 How. 7; Blocker v. Whittenburg, 12 La. Ann. 410.

Bird v. Cromwell, 1 Misso. 81.

• Charleston Steamboat Co. v. Bason, Harper, 262.

'Steamboat Lynx v. King, 12 Misso. 272; Soule v. Rodocanachi, 1 Newb. Adm. 504.

8

It is sufficient if what he does is done in good faith, and he is only answerable for fraud or intentional neglect. Cheviot v. Brooks, 1 Johns. 364.

10 The Adonis, 5 Rob. Adm. 256; The Brig Nayade, 1 Newb. Adm. 366.

He may sell the whole cargo, if he can neither take it on nor transship it, and it is perishable and will be destroyed or importantly diminished in value, before he can obtain instructions from the owner. So, too, he may sell a part of the cargo, in order to raise funds to pursue the voyage and carry on the remainder. But not until other means of raising money are exhausted, including the drawing of bills on the owner, hypothecating the ship, or making other use of the owner's property or credit. In regard to the exercise of this power, it can only be said that there must be an actual and urgent necessity; and as to the manner of its exercise, much must be left to the discretion of the master. If he acts in good faith, and under a sufficient necessity, for the best interests of all concerned, and with reasonable discretion, his acts will be valid. But it is not enough that he acts bond fide if no actual necessity existed.2 And although the beneficial effect of the sale will extend to the ship, by enabling her to earn her freight, and even if the ship profit most by it, yet if a part of the purpose and effect be to carry on the cargo that is not sold, it will be justified as an act for the common benefit.

1

But if the voyage is broken up, he cannot sell the cargo at the intermediate port to pay for advances to him to repair the vessel for a new voyage, or to pay seamen's wages. Watt v. Potter, 2 Mason, 77. A sale without necessity is invalid, and conveys no rights to the purchaser. Freeman v. East India Co. 5 B. & Ald. 617; Morris v. Robinson, 3 B. & C. 196; Cannan v. Meaburn, 1 Bing. 243; Van Omeron v. Dowick, 2 Camp. 42; Wilson v. Millar, 2 Stark. 1; Ewbank v. Nutting, 7 C. B. 797; Campbell v. Thompson, 1 Stark. 490; Arthur v. Schooner Cassius, 2 Story, 81; Pope v. Nickerson, 3 Story, 465, 504; Dodge v. Union Ins. Co. 17 Mass. 471, 478. See also the important case of Post v. Jones, 19 How. 150. In Peters v. Ballistier, 3 Pick. 495, a case where the same person owned both ship and cargo, it was held that the master had no authority to sell the cargo for the purpose of paying a debt of the owner, although the creditor threatened, in case of refusal, to detain the vessel and cargo by legal process. We have seen, Vol. I. p. 234, n. 2, when it is the duty of the master to transship, and also, Vol. I. p. 234, n. 3, that he is not obliged to do so if the goods are perishable in their nature.

The Gratitudine, 3 Rob. Adm. 240, 263; Pope v. Nickerson, 3 Story, 465, 491; The Packet, 3 Mason, 255; The Joshua Barker, Abbott, Adm. 215; Myers v. Baymore, 10 Barr, 114; Stillman v. Hurd, 10 Texas, 109; United Ins. Co. v. Scott, 1 Johns. 106; Fontaine v. Col. Ins. Co. 9 Johns. 29; Searle v. Scovell, 4 Johns. Ch. 218, 224; Am. Ins. Co. v. Coster, 3 Paige, 323; Ross v. Ship Active, If the cargo belongs

2 Wash. C. C. 226; Underwood v. Robertson, 4 Camp. 138.

to the owner of the ship, the master may sell it at once for the benefit of the ship. Ross v. Ship Active, supra. See Babcock v. Terry, 97 Mass. 482.

SECTION IV.

OF THE LIEN OF THE MASTER.

As the master may raise money for the ship, or expend his own, or procure supplies, or make other necessary and beneficial contracts, and is personally bound on those contracts, out of this grows his lien on the ship or the freight, for whatever is due to him. How far this lien extends, and indeed in what cases it exists, the authorities do not, perhaps, enable us to state very positively. In England it has been held that he can have no lien on the ship,1 and therefore none on the freight, because this is a mere incident to the ship.

Some early cases moderated the severity of this rule somewhat, and gave him this lien for his disbursements; 2 but they are now overruled. And it has been held in a recent case that the master is not entitled to a lien on the freight in respect of expenses and liabilities incurred by him abroad in supplying provisions and putting up fittings, required by certain charter-parties concluded by him on behalf of the owner. In this country, the law seems now to be, that the master has no lien on the ship for his wages,5 or for

1 Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East, 426; The Johannes Christoph, 33 Eng. L. & Eq. 600. But see Watkinson v. Bernadiston, 2 P. Wms. 367, note, where the Master of the Rolls decreed that sums disbursed by the captain on account of the ship in foreign ports, together with the wages of himself and crew, should be paid out of the proceeds of the ship, as they constituted a lien upon it.

2 White v. Baring, 4 Esp. 22. So in equity, Hussey v. Christie, 13 Ves. 594; Ex parte Halkett, Ves. & B. 135, 2 Rose, 194, 229, 19 Ves. 474; Pierson v. Robinson, 3 Swanst. 139, n.

Smith v. Plummer, 1 B. & Ald. 575; Atkinson v. Cotesworth, 3 B. & C. 647, 5 Dowl. & R. 552; Gibson v. Ingo, 6 Hare, 112.

Bristow v. Whitmore, 4 De Gex & J. 325, overruling s. c. Bristow v. Whitmore, 1 H. R. V. Johns. Ch. 96.

The Ship Grand Turk, 1 Paine, C. C. 73; Revens v. Lewis, 2 Paine, C. C. 202; Fisher v. Willing, 8 S. & R. 118; Gardner v. The New Jersey, 1 Pet. Adm. 223; Phillips v. The Thomas Scattergood, Gilpin, 1; Steamboat Orleans v. Phoebus, 11 Pet. 175; Willard v. Dorr, 3 Mason, 91; Dudley v. The Steamboat Superior, U. S. D. C. Ohio, 3 Am. Law Register, 622; Hopkins v. Forsyth, 14 Penn. State, 34; Richardson v. Whiting, 18 Pick. 530; Case v. Woolley, 6 Dana, But if a person is merely called a master, but is not one in fact, he can proceed against the ship in rem for his wages. L'Arina v. Brig Exchange, Bee, Adm. 198.

17,

22.

his disbursements.1. But for both of these he has a lien on the freight according to the best authorities. But he has no lien for

3

a general account. If the cargo belongs to the owner of the ship, it has been held that the master has a lien on it for his disburse

ments.1

And if he has a lien on the freight, it would follow that he might detain the goods even against a shipper or consignee who had paid

1

1 In Gardner v. The New Jersey, 1 Pet. Adm. 223, 226, it was held that a master who paid claims which were liens on the vessel, was substituted in place of the lien creditors, and acquired a lien on the vessel. See also Bulgin v. Sloop Rainbow, Bee, Adm. 116. Mr. Justice Story, in the Ship Packet 3 Mason, 255, 263, suggested that the master might have a lien on the ship, where he used his own money to repair her in preference to borrowing on bottomry. But that he did not mean to express an opinion that generally a master has a lien on the ship for disbursements is evident, for in Steamboat Orleans v. Phœbus, 11 Pet. 175, he expressly states that this right does not exist. In a case before Mr. Justice Curtis, the whole question was learnedly examined, and it was held that no lien on the ship existed. The Larch, 2 Curtis, C. C. 427. See also Hopkins v. Forsyth, 14 Penn. State, 34. By an early statute in Connecticut, the master, in case of the neglect of the part-owner to furnish the outfits, could supply them and look to the vessel, but had no personal remedy against the owner. Brook v. Williams, 2 Root, 27. In Ex parte Clark, 1 Sprague, 69, the master of a vessel, who had expended his money for the necessary disbursements of the vessel abroad, petitioned to be allowed the amount out of the estate of the sole owner, who had become a bankrupt; and the petition was allowed.

That he has a lien on the freight for his disbursements, see Lane v. Penniman, 4 Mass. 91; Lewis v. Hancock, 11 Mass. 72. In this case the court said: "He may be understood, as against the owner himself, to have the same right in the freight-money which a factor or consignee has in the goods of the principal or consignor, for whom money has been advanced, or any liabilities have been incurred, in consequence of the employment or consignment. The master of a vessel in a foreign port, and at home after a voyage performed, has many liabilities, from which he may have cause to protect himself, by insisting on his right to collect the freight-money." See also Ingersoll v. Van Bokkelin, 7 Cow. 670, 5 Wend. 315; The Ship Packet, 3 Mason, 255; Drinkwater v. Brig Spartan, Ware, 149; Richardson v. Whiting, 18 Pick. 530. If by the shipping articles the master is directly responsible to the seamen for their wages, it would seem that he might retain the freight to indemnify himself. See Goodridge v. Lord, 10 Mass. 483. In regard to his lien on the freight for his wages, see Drinkwater v. Brig Spartan, Ware, 149; Richardson v. Whiting, 18 Pick. 530, 532. In Ingersoll v. Van Bokkelin, 7 Cow. 670, the Supreme Court held that he had a lien on the freight for his wages, but this decision was reversed by the Court of Errors, 5 Wend. 315.

* Shaw v. Gookin, 7 N. H. 16. See also Hodgson v. Butts, 3 Cranch, 140. ⚫ Newhall v. Dunlap, 14 Maine, 180.

the freight to the owner of the ship, if the consignee had been duly notified by the master of his claim and lien, and ordered not to pay the owner.1 And generally it is not only his right, but his duty, to collect the freight, but this power may be taken away from him by an assignment by the owner; 2 but the court will not grant an injunction to prevent him from collecting it, although the freight has been assigned by the owners to a third person, if it does not appear that the master is about to make an improper use of the money.3

SECTION V.

HOW FAR THE OWNER IS LIABLE FOR THE TORTS OF THE MASTER.

The owner is liable not only upon the contracts of the master of the kind above designated, but also for his wrong-doings, and the injuries resulting from them, to a certain extent. We consider that the principles of the law of agency, or of the relation of master and servant, suffice to measure this liability and to determine where it exists. Thus, the vessel and owners are liable for the delay of the master in presenting a proper manifest so that the owner of goods can pass his property through the custom-house, but they are not responsible for a tortious endeavor on the part of the master to prevent the owner from obtaining his goods. If a vessel is chartered, and the master is the agent of the owners, it is

1 See Vol. I. p. 306, n. 3.

2 The Edmond, Lush. Adm. 57.

Guion v. Trask, 1 De Gex, F. & J. 373.

By the general rule of the maritime law, the owners of a vessel are liable for all injuries caused by the misconduct, negligence, or unskilfulness of the master, provided the act be done while acting within the scope of his authority as master. Beawes, Lex Mercatoria (4th London ed.), 54; Stinson v. Wyman, Daveis, 172; The Waldo, Daveis, 161; Dusar v. Murgatroyd, 1 Wash. C. C. 13, 17.

The owner of a vessel is liable for the tort of the master in shipping a minor without the consent of his father, if the master knew this fact at the time; the knowledge of the servant being considered equivalent to knowledge by the principal. See ante, p. 11, n. 1.

The Zenobia, Abbott, Adm. 80, 93. So in The Aberfoyle, Abbott, Adm. 242, 1 Blatchf. C. C. 360, it was held that a vessel was liable in rem for the wrongful act of the master in putting a passenger on short allowance, unless it was proved that the master's act was malicious and wrongful.