The master is appointed and employed by the owner, and the owner is bound to all other parties for the competency of the master, that being necessary to make the ship seaworthy. (j) But the master is also bound to all whose interests are under his charge. He owes to them the duty of entire integrity, and suitable and constant care, and skill. He may become in law the agent of charterers, freighters, shippers, or insurers, when the necessity arises of acting directly for them.
(e) Williams v. London Ass. Co. 1 M.
& S. 318.
(f) The Nathaniel Hooper, 3 Sumner, 642; The Ann D. Richardson, Abbott, Adm. 499; Nelson v. Belmont, 6 Duer, 822.
(g) Stevens & Benecke on At. Phil.
(h) 2 Phillips, Ins. § 1413.
(i) Simonds v. White, 2 B. & C. 805; Daglish v. Davidson, 6 Dowl. & B. 6; Lewis v. Williams, 1 Hall, 430. See Chamberlain v. Reed, 13 Maine, 367.
(j) Propeller Niagara v. Cordes, 21 How. 7.
His multifarious duties cannot be enumerated, nor can they * be better defined, than to say that they are all that are included in due care and skill with respect to all the interests which are placed under his charge or within his control.
Usage has much influence in determining these duties; and by usage the master has certain customary privileges. One of these is known by the name of primage. This is a certain percentage on the freight. (k)
We have seen that he is often vested with extraordinary powers from an extraordinary necessity; and this necessity must be the greater as the power is the greater: thus, only extreme necessity gives him power to sell the ship; (l) a less necessity, but still a strong one, authorizes him to hypothecate her by bottomry; (m) and a much less necessity, being in fact only a certain expediency, authorizes him to repair or supply her, (n) and in many cases to let her by charter. But all the duties and powers of the master are connected with the use and employment of the ship; and are extended over the cargo, only from necessity. And if they spring from necessity, they do not exist if he has the means of obtaining definite instructions.
Generally, an agent cannot delegate his authority without a special authority. But a master, where a sufficient necessity exists, may appoint another in his place. (o) And the master so appointed, may appoint another, under a similar necessity; and any master so appointed, has the powers and duties of the original master. And so it is with an officer who becomes master by the death, absence, or inability of the original master. And this is equally true of a master appointed abroad, by a consul or any official person who has authority to make the appointment. (p)
(k) Scott v. Miller, 6 Scott, 16; Char-leton v. Cotesworth, Ryan & M. 176; Best v. Saunders, Moody & M. 206; Vose 9. Morton, 6 Gray, 694. In Rennell v. Kimball, 6 Allen, 356, the master was to have five per cent primage on the gross earnings of the ship. He was paid this in a foreign port, by the ship's agent, who charged a commission on the same to the account of the ship. Held, that the master was personally liable for this commission.
(l) See ante, p. *276.
(m) See Pratt v. Reed, 19 How. 961.
(n) The Ship Fortitude, 3 Sumner, 287; Webster v. Seekamp, 4 B. & Ald. 352; Pratt v. Reed, 19 How. 869.
(o) 1 Bell, Com. 418; Breed v. Ship Venus, U. S. D. C. Mass. 1806.
(p) The Zodiac, 1 Hagg. Adm. 320; The Nuova Loanese, 22 Eng. L. & Eq. 628; The Cynthia, 20 Eng. L. & Eq. 628.
In England, a master has no lien on the ship, (j) and none * on the freight, for his charges or disbursements. (r)
The law of this country would seem to give him no lien for these upon the ship,(s) but would give him one upon the freight. (t)
The general principles of the law of agency apply in all their force to the relations between the master and all of those of whom he is the agent, whether by original appointment or by necessity; nor do we deem it necessary to present in detail the various qualifications of these principles, which grow out of the nature of the agency.
The liability of the owner for the torts of the master, as his servant, is governed in general by these principles. (u) l But the law-merchant has, for a long time, limited the responsibility of the owners for the tortious acts of the master and the mariners, to the value of the ship or freight; and if the owner abandon them to the injured party, or if they are lost before the termination of the voyage, all the liability of the owner ceases. (v)
In France, (w) in England, (x) in some of our States, (y) and
(q) Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East, 426; The Johannes Christoph, 38 Eng. L. & Eq. 600.
(r) Smith v. Plummer, 1 B. & Ald. 576; Atkinson v. Cotesworth, 8 B. & C. 647 ; Gibson v. lngo, 6 Hare, 112; Bris-tow v. Whitmore, 4 De Gex & J. 325, overruling s. c. 1 H. R. V. Johns. Ch. 96.
(s) The Ship Grand Turk, 1 Paine, C. C. 73; Revens v. Lewis, 2 Paine, C. C. 202; Willard v. Dorr, 3 Mason, 91; Hopkins v. Forsyth, 14 Penn. St. 34; The Larch, 2 Curtis, C. C. 427; Ex parte Clark, Sprague, 69.
(t) Lane v. Penniman, 4 Mass. 91; Lewis v. Hancock, 11 Mass. 72; The Ship Packet, 3 Mason, 255; Richardson v. Whiting, 18 Pick. 630.
(u) Stinson v. Wyman, Daveis, 172; The Waldo, id. 161; Dusar v. Murgatroyd, 1 Wash. C. C. 17; The Zenobia, Abbott, Adra. 93; The Aberfoyle, id. 242, 1 Blatchf. C. C. 360; Boucher v. Lawson, Cas. temp, Hardw 78, 183; Dias v. Privateer Revenge, 3 Wash. C. C. 262; Weed v. Panama Railroad Co. 6 Duer, 198,17 N. Y. 362; The Hibernia, Sprague, 78.
(v) Emerigon, Contrats a la Grosse, c 4, § 11; The Rebecca, Ware, 198; The Phebe, id. 268, 271.
(w) Ord. de la Mar. liv. 2, tit 8, art. 2.
(x) Stats. 7 Geo. 2, c. 16; 26 Geo. 8, c. 86; 68 Geo. 3, c. 169; 17 & 18 Vict. c. 104, § 503, et seq. For the construction of these statutes, see Wilson v. Dickson, 2