B. & Ald. 2; Cannan v. Meaburn, 1 Bing. 465; Brown v. Wilkinson, 16 M. & W. 391; The Mary Caroline, 8 W. Bob. 101; Leycester v. Logan, 3 Kay & J. 446; Dobree v. Schroder, 6 Sim. 291, 2 Mylne & C. 489; African Steamship Co. v. Swanzy, 2 Kay & J. 660; The Dundee, 1 Hagg. Adm. 109; Gale v. Laurie, 6 B. &

C. 156; The Carl Johan, cited 1 Hagg. Adm. 113; The Benares, 1 Eng. L. & Eq. 637; The Volant, 1 W. Rob. 386; Hill v. Andrus, 1 Kay & J. 263; The Duchesse de Brabant, 21 Law Rep. 248; Gibbs v. Potter, 10 M. & W. 70.

(y) Mass. Stat. 1818, c. 122, Rev. Stat c. 32; Gen. Stats, c. 62, § 18; Maine Rev. Stats. 1841, c. 47, § 8; 1857, c. 36, § 5. See Stinson v. Wyman, Daveis, 172; Pope v. Nickerson, 8 Story, 466.

1 The Woodland, 104 U. S. 180, decided that where a master issued fraudulent drafts on the owners, bond fide holders could claim no lien on the vessel, although the drafts were in terms "recoverable against the vessel, freight, and cargo." by the Congress of the United States, (z)1 various statutes have been passed respecting this liability of the owner or owners for the embezzlement, loss, or destruction, by the master or mariners. * These statutes conform to the general princi * 3S5 ple of the law-merchant as above stated; but qualify or limit the liability of the owner in various ways. Important questions have arisen under the provisions of these statutes, and have been passed upon by various courts, as will be seen in our notes. (a)

Of the Power of the Master over the Cargo.

We have seen, when treating of transfer by bottomry, that the master has power in certain cases to hypothecate the ship. A similar necessity may give him a similar power with respect to the cargo. His relation to the cargo, and his power in respect to it, differ from those which he holds in relation to the ship. This difference arises from the fact, that his relations to the ship are primary, and his relations to the cargo are derived from his relations to the ship. He may be himself consignee or supercargo; and then has all the powers and duties of these several officers, but even then, on the voyage, he is only master, and perhaps to some extent supercargo; and only when the ship reaches its destination, is he consignee; and then also the principal duties of a supercargo begin. (b) He may sell the * whole cargo, * 836

(z) 1851, c. 48, 9 U. S. State, at Large, 635.

(a) In a case in Massachusetts, it has been held, that the owners of a ship are liable in case of collision to the extent of the value of their interest in the vessel and freight just before the collision, and that the clause relative to an abandonment does not apply to a case of collision. Walker v. Boston Ins. Co. 14 Gray, 288. And that the part-owners of a ship are jointly liable to the extent of their joint interest in the ship, and not merely each to the extent of his own interest, for the embezzlement or loss of goods, and that the value of the interest in such a case is that existing just before the tort complained of, that the liability is not lessened by the ship being mortgaged, and that the clause relative to abandonment only applies in case an abandonment is actually made, and is of no effect if the vessel is totally lost before reaching her port of final destination. Spring v. Haskell, 14 Gray, 809. This case is opposed to Wattson v. Marks, 2 Am. Law Reg. 157. See In re Sinclair, 8 Am. Law Reg. 206. "Freight pending," includes the earnings of the vessel in transporting the goods of the owners. Allen v. Mackay, Sprague, 219. The act does not apply to vessels engaged in "inland navigation." A vessel on Lake Erie bound from Buffalo to Detroit, enrolled and licensed for the coasting trade, and engaged in commerce between ports of different States, is not a vessel engaged in inland navigation, within the meaning of the act. Moore v. American Transp. Co. 5 Mich. 368, affirmed, 24 How. 1.

(b) In some places it is the custom to consign goods to the master for sale and returns. In such a case he is a carrier while transporting the goods, a factor while selling, and a carrier while bringing back the proceeds. Stone v.

1 See The Scotland, 105 U. S. 24, as to the effect of this statute on foreign vessels.

if he can neither carry it forward, nor send it forward, nor retain it without its destruction, or important diminution in value, before he can receive instructions from the owner, or from the shipper. (c) 1 If he needs funds to pursue the voyage, and cannot raise them by using the ship, or the property or the credit of the owner, he may then for this purpose sell a part of the cargo. But he does not possess this power unless the necessity for exercising it be as urgent and as certain as the necessity must be which justifies his sale of the ship. And for this purpose, he can sell only a part of the cargo; for his power to sell this, is derived from the necessity of selling it for the benefit of the remainder; and if he sells the whole to raise funds, they can thus be raised only for the benefit of the ship, as there is no cargo left to be benefited. (d) But if the cargo belongs to the owner of the ship, he may sell the whole in case of necessity, for the benefit of the ship. (e) And if in a foreign port he needs funds to pay the officers and crew, he may pledge the credit of the owners therefor if he has no other means; but the lender must use due diligence to ascertain the necessity; and whether he does so is a question for the jury. (ee)

Waitt, 81 Maine, 409; The Waldo, Daveis, 161. See Moseley v. Lord, 2 Conn. 389; Emery v. Hersey, 4 Greenl. 407; Kemp v. Coughtry, 11 Johns. 107; Williams v. Nichols, 13 Wend. 68; Day v. Noble, 2 Pick. 615; Smith v. Davenport, 34 Maine, 520. Generally the master is a stranger to the cargo between the lading and the unlading; but in case of necessity, he is clothed with whatever power is needed to protect the property and interests intrusted to him. The Gratitudine, 3 Rob. Adm. 257; Vlierboom v. Chapman, 18 M. & W. 239; Douglas v. Moody, 9 Mass. 548; Gillett v. Ellis, 11 Ill. 579.

(c) 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; Ewbank v. Nutting, 7 C. B. 797; Arthur v. Sch. Cassius, 2 Story, 81; Pope v. Nickerson, 8 Story, 604; Dodge v. Union Ins. Co. 17 Mass. 476; Post v. Jones, 19 How. 150; Peters v. Ballistier, 3 Pick. 495.

(d) The Gratitudine, 3 Rob. Adm. 263; Pope v. Nickerson, 8 Story, 491; The Packet, 8 Mason, 255; The Joshua Barker, Abbott, Adm. 216; United Ins. Co. v. Scott, 1 Johns. 106; Fontaine v. Col. Ins. Co. 9 Johns. 29.

(e) Ross v. Ship Active, 2 Wash. C.

C. 226.

(ee) Stearns v. Doe, 12 Gray, 482.

1 Acatos v. Boms, 3 Ex. D. 282, decided that a shipmaster cannot, at an intermediate port, sell goods which are damaged and cannot be carried to the port of discharge, without communicating with their owner; and if there landed and sold without the owner's assent, the shipowner is not entitled to freight pre rata itinera.