Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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68



THE OWNER.



survives, and the executor of tlie deceased could not be joined
in the suit (u). The earnings of the ship, whether as freight,
cargo or otherwise, follow the general law of partnership (r).
Joint owners. It is expressly provided by the Merchant Shipping Act, 1854,
sect. 37, that any number of persons not exceeding five may be
registered as joint owners of a ship, or of a share or shares
therein, and that such joint owners shall be considered as only
one person, so far as relates to the rule which has been men-
tioned as to the number of registered owners, and shall not be
entitled to dispose in severalty of their interest in the ship.



Trover. Subject to these observations, the ordinary rules respecting

tenants in common apply to part owners. Thus one part owner
cannot bring trover for the value of his share against another,
unless there has been an actual destruction of the ship, or some
Sale not gene- act equivalent to it (x). The mere sale of the ship by one of
sbif. * ^^^^^^' them appears not to be equivalent to a destruction, for, gene-
rally, such a sale would only pass the interest of the seller. It
would be otherwise if the whole property passed (y). Where it
appeared that the plaintiff was tenant in common of one moiety,
and the defendants of the other, and that they forcibly took the
ship out of his possession, and changed her name, and secreted
her from him, and that she afterwards got into the hands of a
third person, who sent her on a foreign voyage, where she was
totally lost, it was left to the jury to consider whether the de-
struction was not by means of the defendants' acts; and the
jury having found that it was, the Court held that the direction
was proper, and refused to disturb the verdict {z). But where
one part owner sued the other for fraudulently and deceitfully
carrying the ship beyond the seas without his assent, whereby
he lost his share, the Court arrested the judgment, and held.



Remedies as
against each
other.



(tt) This is an anomaly. See the judg-
ment of Dampier, J., in Rex v. Collector
of Customs, 2M. & S. 225; Martin v,
CrompCf 1 Ld. Raym. 340 ; Buckley v.
Barber, 6 Ex. 164. In the earlier cases
this rule was not distinctly recognized ;
actions were brought jointly by the sur-
Tiyor and the executor, and the non-
joinder of the executor was in some in-
stances pleaded in abatement See Hall
V. Huffam, 2 Lev. 188, 228 ; 3 Keb. 737,
798; Kemp ▼. Jndrews, 3 Lev. 290;
Smyth V. Milward, 2 Lutw. 1498.

(v) See Green v. Briggs, 6 Hare, 895.



(x) See Litt s. 328 ; Heath v. Hub-
bard, 4 East, 110; Mayhew v. Herrick,
7 C. B. 229.

{y) Heath ▼. Hubbard, ubi sup., 2
Wms. Saund. 47 p, note (c) ; Barton ▼.
JVilliams, 5 B. & Aid. 395 ; and see the
observation of Parke, B., in Farrar v.
Beswick, 1 M. & W. 688. There is no
market overt for the sale of ships, ante,
p. 19.

(z) Bemaditton v. Cht^nnan, C. B.,
1 Geo. 1, before King, C. J., cited 4
East, 121.



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THE OWNER- O:

that owing to the trust and confidence which the law supposes
to exist between tenants in common, there cannot be any frnud
between them, and that, under such circumstances, they have no
remedy at law (a).

It has been held, that where one part owner objects to the
employaient of the ship on a particular voyage, but does not
expressly dissent, he is liable in equity, if the ship is afterwards
lost, for his proportion of the loss (5), but that it is otherwise if
he expressly dissents (c).

It is, as we have seen (d), the duty of the majority of the Choice of
owners to exercise a feir and impartial judgment in the choice °"*^®"*
of the persons to whom they confide the management of the
outfit, and the navigation of the ship. This is a duty not only
towards others, but as between themselves, and it would seem
that any contract calculated actually to interfere with it, and to
fetter their judgment, would be held void(e).

Each owner is also bound, before the commencement of the Contribution
voyage, to contribute his share of capital for the expenses of the peases* ^^'
outfit, and, therefore, if one part owner, who is ship's husband,
incurs this expense, he may sue the others separately for their
share of it (/).

One of several part owners has a right to require that the
gross freight or proceeds of the cargo shall be applied in the
first place to the payment of the expense of the outfit of the ship
for the voyage on which the freight was earned ; and the same
rule applies to the expenses of repairs to the hull, done with a
view to the particular adventure in which the earnings were
made, and without which the adventure would not have been
undertaken f^). By sect 615 of the Merchant Shipping Act,
1864, all money paid on account of any loss or damage in re-
spect whereof the liability of the owners is limited by Part IX.
of the act, and all costs incurred in relation thereto, may be

(a) Graves v. Sawcer, 1 Lev. 29 ; S. C, (/) Helme v. Smith, 7 Bing. 709.
Sir T. Raym. 15. It does not appear (g) Green v. Briggs, 6 Hare, 395 ;
distinctly whether the ship was lost ; Alexander v. SimmSt 5 De G., M. & G.
see also MoUoy, B. 2, c. 1 , s. 2. 57. Wages, and the expense of man-

(b) Shelly ▼. Wituon, 1 Vern. 297. ning the ship, are proper deductions to

(c) Horn v. Gilpin^ Ambler, 255. be made from the gross freight as be-
{d) Ante, p. 45. tweeu part owners of a ship and the
(e) See the judgment in Card v. Hope, assignee of the freight of another part

2 B. & C. 674. owner. Lindsay v. Gibbs, 22 Beav. 522.



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70 THE OWNER.

brought into account among part owners^ in the same manner
as money disbursed for the use thereof.

Part owners may, by the law of England, separate at any-
time by parting with their shares. The rule of the maritime
law was different (A).

Power to bind Part owners are usually liable for necessary repairs and stores
ordered by one of themselves (t). But strictly speaking the
simple existence of co-ownership does not give power to one part
owner to pledge the credit of the others. And it is clear that, in
all cases in which it is sought to make one part owner liable upon
the order of another, the real circumstances and position of the
parties may be looked to in order to ascertain whether any
agency existed in point of fact. In a recent case, one of two
part owners had not done any act to induce the creditor to sup*
pose that the other had power to pledge his credit, and had
given notice to his co-owner of his intention not to sail the ship
again, and had offered to sell his share in her. It was held
that, under these circumstances, he was not liable for repairs
subsequently ordered by his co-owner, although the notice
of his intention to sell had not been communicated to the cre^
ditor (A). The principle and limit of this liability is this ; the
law infers that a part owner on the spot has an implied autho-
rity from the absent part owners to order whatever is necessary
for the preservation, navigation, and proper employment of the
ship, because the common owners of a valuable chattel are pre-
sumed to intend its preservation and profitable employment (Z).
They cannot, however, bind each other as partners, unless an
actual partnership exist, and then the ordinary rules relating to
partnerships apply. Thus, one part owner has no authority to
order insurances to be effected on behalf of the others, unless
there is a partnership between them(m). If, however, the
others subsequently adopt the insurance, they are bound by
it (n) : but, in the absence of any original authority, or subse-
quent ratification, the broker who effects the insurance can only
look to the part owner who employs him, and is liable, on the

(h) Molloy, B. 2, c. 1, s. 3. which such an authority is implied.

(•) See Ex parU Bland, 2 Roser 92 ; Preston v. Tamplin, 2 H. & N. 303.

Story on Agency, s. 40, and the cases (/) See Holt on Ship., Introd. 33.

as to repairs cited in the earlier part of (m) Hooper v. Lusby, 4 Camp. 66.

this chapter. (n) Robinson ▼. Gleadow, 2 Bug. N. C.

{k) Brodie v. Howard, 17 C. B. 109. 156.
See also as to the circumstances from



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THE OWNER. 71

other hand, to him alone, for the amount received from the
underwriters (o).

Where, as is usaal, one part owner is appointed ship's hus- Ship's bus-
band, he becomes the agent of the others in the management of ^° '
the ship, and commonly receives some remuneration from his
co-owners (p). It is then his duty to see to her proper outfit
and equipment, and he has power to bind the others by con-
tracts made within the scope of his agency. He cannot, how-
ever, as ship's husband, insure the shares of the other part
owners, or bind them to the expenses of a law suit (q). It has
been decided that a director of a company has no right, even
with the consent of the board of directors, to appoint himself
to the office of ship's husband (r).

It was once held that part owners, although tenants in com-
mon and not joint tenants, had a right to consider the ship as
partnership effects, and as liable to pay all debts which any of
them might have incurred on her account, so as to give to those
partners who were compelled to pay, a lien in equity on the
share of others who had not contributed («). But this decision
has been since overruled (t).

Where one part owner becomes bankrupt his share passes to Bankruptcy.
the assignees under the bankruptcy without being liable specifi-
cally to the claims of the other part owners in respect of their
disbursements and Uabilities for the ship(u) ; but it is a general
rule, that the assignees of a bankrupt partner can obtain no
share of the partnership effects until they have satisfied all that
is due firom him to the partnership. Where oil, the produce
of a joint adventure, was deposited in a warehouse, separated
into shares, put into casks marked with the initials of the several
owners, and, by the agreement between them, no partner had a

(•) Roberts ▼. Ogilhy, 9 Price, 269, (q) French v. Backhouse, 5 Bun. 2727;

and lee Hatsall v. Griffith, 2 C. & M. Bell v. Humphries, 2 Stark. 345 ; Camp-

e>19. bell V. Stein, 6 Dow, 135.

( p) See Salter v. Adey, 1 Jur., N. S. (r) Benson v.Heathorn, 1 Y. & C. C. C.

930, where it was held, that a part owner 340.

who entered on the duties of ship's hus- (#) Doddington v. Hallett, 1 Ves. sen.

band without any express a^eement for 497.

remuneration, but with a knowledge that {t) Ex parU Young, 2 Rose, 78, note,

his predecessor had received a commis- and see Green v. Briggs, 6 Hare, 395.

cion, was, on an account being taken («) Ex parte Harrison, 2 Rose, 76 ;

widi his co-owners, en tided to the same Story £q. Jur. 1242.
commission at bb predecessor.



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72 THE OWNER.

right to his part until he had paid his share of the expense of*
procuring it, and one of them became bankrupt before his share
was actually removed, it was held that the other part owners
had a lien on it for the bankrupt owner's proportion of the dis-
bursements of the ship, and were not boimd to give it up to his
assignees until this was paid (x). Where the managing owner
received the freight warrants and paid them into a bank in his
own name, drawing cheques from time to time, for various sums
out of the proceeds, part of which he applied for the use of the
ship, and part for other purposes, it was held that the other part
owners had no lien on this fund in the hands of the banker, nor
any claim against him as their debtor (y).

Competent Formerly questions arose as to whether part owners could

witnesses. ^^^ evidence for each other (z) ; but as objections on the ground
of interest are now removed, and the parties to a suit are com-
petent witnesses in their own case, it is unnecessary further to
notice these decisions (a) ; but, it must be recollected, that the
admission of one part owner is still not binding on the
others (i).

Admiralty ju- In disputes between part owners as to the employment of the
emploj^en^t of ^hip, the Court of Admiralty exercises a peculiar jurisdiction (c).
ship. In the words of Lord Tenterden "it has been the constant

practice, in disputes between part owners as to the employment
of the vessel, where the majority in value of the shareholders
are desirous to send the vessel on a voyage to which the mi-
nority vnll not consent, for the Court of Admiralty to arrest the
ship at the instance of the latter, and to take from the majority
a stipulation in a sum equal to the value of the shares of those
who disapprove of the adventure, either to bring back and re-
store to them the ship, or to pay them the value of their shares.
Although the jurisdiction of the Admiralty in such cases was

(or) Holdemess v. ShacJcells, 8 B. & C. 72, and 12 & IS Vict. c. 106, s. 125.
612 ; Green v. Briggs, 6 Hare, 395 ; see («) Atkinson v. Foster, 1 C. B. 712.

also Boyd v. Mangles, 3 Ex. 387. (a) 6 & 7 Vict c. 85 ; 14 & 15 Vict

(y) Ex parte Gribble, 3 Deac. & Chit c. 99 : 16 & 17 Vict c. 83. The only

339, and see Sims t. Bond, 5 B. & Ad. exception is in actions of breach of pro-

889. As to the transmission of shares in mise of marriage, and proceedings in-

a ship by bankruptcy, see the M. S. Act, stituted in consequence of adultery ; 14

1854, ss. 58—60, mortgages of ships, & 15 Vict c. ^9,
when duly registered, are exempt from {b) Joggers v.Binnings, 1 Stark. 64.

the operation of the reputed ownership (c) MoUoy, B. 2, c. 1, 8. 2, Beawes,

clauses in the bankrupt acts. See sect 107.



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THE OWNER.



73



once doubted, there are several authorities recognizing it ; and
it may now be taken as settled, that in disputes between part
owners as to the employment of a ship, the Court of Admiralty
may, by warrant, arrest and detain the ship until security be
given to the amount of the value of the shares of those part
owners who dissent from the particular employment" (rf). If
the minority have possession of the ship, and refuse to employ
her, the majority may, on a similar warrant, obtain possession
and send her to sea, on giving the like security {e). This Court
is open all the year round to applications by part owners to re-
strain the sailing of ships without their consent, until security
given to the amount of their respective shares. But where the
shares are not ascertained the Court has no jurisdiction, and in
such a case the Court of Chancery will restrain the sailing of the
ship by injunction until the share of the party complaining shall
be ascertained, and security given to the amount of it(/). A
dissenting owner is not entitled to any share of the freight
earned on the voyage (y). Where, however, he arrests the ship
after the other owners have expended money in repairing it and
fitting it out, he is bound to pay his proportion of these ex-
penses (A). The law of some coimtries has gone so far as to en-
deavour to compromise all interests by compelling, in cases of
disagreement, a sale, either of the shares of the minority, or of
the whole ship, on the application of a majority of the owners,
or sometimes even of a moiety of the interests. But by the No power to
law of England there is no power, in cases of this description, i'n'^g^e8*of*di8-
to compel a sale, either in the Court of Chancery or the Court agreement,
of Admiralty (i). Where a bond was given for the safe return
of a ship to a particular port of this kingdom, and the ship hav-

{d) In Re Blanihardt 2 B. & C. 248, undoubted wherever there is an express

and see The ApoUo, 1 Hagg. 306. The agreement as to the employment of the

Court has jurisdiction to take a vessel ship. Z)ar6y v. ^atne«, 9 Hare, 369. See

from a mere wrongdoer, and deliver it also Brenan v. Preston, 2 De G., M. & G.

to the lawful owner. lb. 813.

<«) Abbott on Ship. 101 (7th edit.) (g) i^nm., 2 Chanc. Cas. 36 ; Boson v.
It appears that, according to the Ame- Sandford, Carth. 63.
lican law, the minority may employ the {h) Davis v, Johnston, 4 Sim. 539.
ship in like manner, if the majority de- (i) Per Sir C. Robinson, in The Mar-
dine to employ her at all. Steamboat garet^ 2 Hagg. 276 ; Ouston v. llebden,
Orleans v.Phcebus, 11 Peter's (American) 1 Wils. 101. The Scotch and American
Rep. 175. Courts have exercised the right of com-

(/) Holy T. Goodson, 2 Mer. 77 ; pelling a sale, at least where the part

OaistU V. Craig, lb, 137. See, how- owners were equally divided in opinion,

ever, CasteHi v. Cook, 7 Hare, 89. The 1 Bell's Comm. 503 ; 3 Kent's Comm.

Jurisdiction of the Court of Chancery is 153, 154.



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74



THE OWNER.



ing been carried by distress into another port was there arrested
in suits for salvage and wages, the Court of Admiralty dechned
to pronounce the bond forfeited, and held, that while the ship
was within the jurisdiction of the Court, safe and unsold, the
application was premature (A).



Power of Court
of Chancery
to sell interest
of unqualified
owners.



The Court of Chancery has now, by statute, power to order a
sale of any property in a ship or share which becomes vested, by
transmission on the death of any owner, or the marriage of any
female owner, in any person not qualified to be the owner of a
British ship. The application must be made on behalf of the
imqualified person, and the Court may deal with it, and with
the proceeds of the sale as it thinks just (I). The order for sale
must vest the right to transfer the property in a nominee of the
Court, who may then transfer like a registered owner (m). The
application for a sale must be made within four weeks after the
occurrence of the event on which the transmission of the pro-
perty has taken place, or within such further time (not exceed-
ing one year from the date of such occurrence) as the Court
may allow. If no application for a sale is made, or granted, the
share or ship transmitted under the circumstances mentioned
above, becomes forfeited (n). These powers may be exercised in
Ireland by the Court of Chancery, in Scotland by the Court of
Session, and in any British possession, by the Court possessing
the principal civil jurisdiction therein (o).



To restrain a
sale of ship.



The Court of Chancery, and the other Courts referred to
above, have also, by statute, a general power to prohibit the
dealing with any ship or share for any time to be mentioned in
an order made by the Court. Any person interested in the ship
may apply for such an order (p).



Adjustment of
accounts.



The ordinary remedy for part owners to obtain an adjustment
of the ship's accounts amongst themselves is a suit in equity (^).
Where, however, one of the part owners, who acted as ship's
husband, covenanted with the others to make out the ship's



{k) Tht Margaret, 2 Hagg. 276.
(l) M. S. Act, 1864, s. 62.
(m) lb. s. 63.
(n) lb. s. 64.
(o) Jb. s. 62.



(p) M.S. Act, 1854, s. 65.

(q) Col Iyer on Partnership, 688. A
copartner cannot originate a suit for
accounts in the Admiralty Court. Tk9
ApoUo, 1 Hagg. 306.



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THB OWNER. 75

accountSy and diride the profits after the ship's return, it was
held, that the other owners might sue him at law (m this co-
Tenant (r).

To a biU filed for an account of the profits of the ship all the
part owners must be parties (s).

With respect to the liability of part owners to third parties, Rights and
we have seen that, when they are liable, their liability is not J^^^^^ot^r,.
limited by the extent of their separate shares (0-

They should join in actions for any injury to the ship. Be- Actioni by.
fore the Common Law Procedure Act, 1862 (16 & 16 Vict. c.
76), the objection that all were not joined, could in actions of
tort be taken only by plea in abatement (t<). In these actions the
misjoinder, or the joinder of too many plaintiffs, and in actions
of contract, either the nonjoinder or the misjoinder of plaintiffs,
was a fatal objection which might be taken at the trial, or, if it
appeared on the pleadings, by demurrer, or in arrest of judg-
ment (or). In actions against part owners, the ordinary rules as Actions
to the joinder of parties also applied. Where the action was in ®^°'**
tort, no advantage could be taken of the omission of some of
the joint tort-feasors, or of the joinder of too many defend-
ants ; but where the action was on a contract, even although
the plaintiff shaped his case in tort, the omission of any defend-
ant was ground for a plea in abatement, and the joinder of too
many, of nonsuit ; for, it was held that the plaintiff could not,
by adopting a particular form of remedy, alter the situation of
the defendant (y).

It is not now necessary that any form of action should be
mentioned in the writ (z), and different causes of action may be
joined in the same suit provided they are by and against the
same parties, and in the same rights (a). A defendant may now
give notice of nonjoinder of any plaintiff, or plead it in abatement,
and in all cases of nonjoinder or of misjoinder of plaintiffs, or of

(r) Owston v. Ogle, 13 East, 538. kee the notes to Cabell v. Faughan, 1

(#) Moffat V. Farquharson, 2 Brown Wins. Saund. 291 A ; 1 Chit. Plead. 14,

C. C. 838 ; Collyer on Part 683. 75 (7th edit.)

(0 Ante, p. 63. (y) Poxzi v. Shipt<m, 8 A. & £. 963.

(«) Adduon v. Overend, 6 T. R. 766 ; («) 15 & 16 Vict c. 76, s. 3.

PkimpM V. Claggett, 10 M. & W. 102. (a) lb, s. 41.

(x) Hare T. CeUy, Cro. Eliz. 143 ; and



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76 THE OWNER.

defendants, an amendment may be made, if necessary, before or,
in some cases, at the trial (b).

We have seen that although there is no survivorship as to
the right to the shares in a ship, the remedy in respect of any
contract made with all the owners, or for any damage done
during their lifetime to the ship, belongs to the survivors
only(c).

(6) 15 & 16 Vict c 76, ts. 84-39.

(c) See the cases cited, anUt p. 68, note («); Buckley v. Barber, 6 Ex. 164.



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( 77 )



CHAPTER III.

THE MASTER.



PAGE

Tbh Master 77

Nature of his Office. . • . 78

His Qualifications ... 78

Examination .78

CertificateM of Competency and
Service 78

APPOIlfTMSlYT, RSMOTAL AND

Rbmunbbation .... 80

Primage 82

Tradifw on his oum Account . 8*3
Hemem/for Wages .... 88

Lien ... 7 84

Authority 84

Duties brforb the Votage . 86
As to Ship and Crew ... 86

Customs LatDS 87

Port Dues 88

Lading Cargo 89

Starting for Voyage .... 91
Duties during the Votage . 91

Sl^s Papers 92

Certificate ofBegistry ... 92
Agreement 93



PAOB

Charter-Party 98

BiUs of Lading and Invoices 93

Log Booh 93

BUI of Health 95

Flags 96

Barratry 97

Duties apter thb Votage . 99

Customs Laws 100

Delivery of Cargo .... 101
Personal Liability on Con-
tracts 102

Power to bind the Owners 102
Hypothecation, or Sale of Ship

or Cargo 104

Idability of Oumers for his

Torts 105

Power TO bind the Freight-
ers 105

Agency in Cases of Insur-
ance 106

Jettison 106

Ransom 106



The master^ more commonly called the captain^ is the person Thb Maitbr.
appointed by the owner or owners, to navigate and manage the
ship (a) ; and the law regards him as an oflBcer who mast render
accomit for the whole charge committed to his care. By reason
of his possession of the ship he may bring an action of trespass,
or case against a wrongdoer, and may sae for freight earned
mider a contract to which he is a party (b) ; but he cannot sue
for demurrage, unless it be mentioned in the bill of lading (c).



(a) MoUoy, B. 2, c. 2, s. 1 ; 8 Kent's
Omim. 160; tee also the CoDsolato,
c. 16. A full account of his office and
duty under the French law will be found
in the Encyclopedic du Droit, tit. Capi-
uine de Navire. See also Code de
Commerce, Art. 221—249. By the M.
S. Act, 1854, B. 2, the term ** master"
includes eyery person (except a pilot)



haying command or charge of any ship.

(6) Pittt ▼. Gainee, 1 Ld. Raym. 558 ;
Shields v. Davit, 6 Taunt 66, He may
allege in pleading that the goods were
carried in hi* ship. lb.

(c) Brouncker v. Scoitf 4 Taunt. 1 ;
JeitoH T. Solly, ib. 52 ; Evans t. Fortter,
1 B.& Ad. 118.



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78



tHE MASTER.



Nature of
office.



As the master possesses an almost absolute control over the
crew and passengers, and very extensive powers over the in-
terests of the owners, and of the merchants in the care of the



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 13 of 101)