§ 454. The master of a ship, so long as his agency lasts,1 has a general authority, growing out of his official relation to the ship, to make all contracts incidental to her ordinary employment. He may hire seamen for the voyage; he may let the ship on a charter-party, or take shipments on freight, if such be her usual employment, and not otherwise; he may contract for necessary repairs and equipments for the voyage,2 - unless a ship's-husband be employed, who is known to the party contracting with the master; he may hypothecate the ship in foreign ports for money advanced to supply its necessities, if they cannot be otherwise supplied, - in which case the payment of the money borrowed must depend upon the arrival of the ship,3 - or he may, under certain circumstances, sell the ship and cargo.4 But he cannot mortgage the vessel so as to transfer the property in it to one who lends money to put her in repair.5 Nor can he hypothecate the vessel, and also pledge the owner's personal credit.6 He is sometimes, also, appointed supercargo, or consignee of the cargo; in which case, he is not only the agent of the owners of the ship, but also of the consignors; and in his latter capacity is a factor.
1 Mackenzie v. Pooley, 11 Exch. 638 (1856).
2 Provost v. Patchin, 5 Seld. 239. See Holcroft v. Halbert, 16 Ind. 257; Gregg v. Robbins, 28 Mo. 347.
3 Stainbank v. Fenning, 6 Eng. Law & Eq. 412; 11 C. B. 51.
4 It was left a qucere in the Exchequer Chamber whether the prima facie authority of the master of a ship in dock in London extended to ordering repairs when the owner lived at Liverpool. The question had been decided in the affirmative below in the Queen's Bench. Mitcheson v. Oliver, 5 EL & B. 419 (1855).
5 Stainbank v. Shepard, 20 Eng. Law & Eq. 547; 13 C. B. 418. 6 Ibid.
If the owner of the ship and the consignor be the same person, the master is liable to him in two characters, which are carefully to be distinguished. During the voyage, he acts as master; but after the cargo has arrived at its destination, he is generally treated as acting solely in the capacity of consignee.1 Under ordinary circumstances, the master, in his official capacity, has no other relation to the cargo than that of carrier; 2 but in cases of extreme emergency and necessity, he becomes a consignee and supercargo by the mere effect of law; for the purpose of jettison and of sale. When the ship has put into an intermediate port; in distress, the master cannot make an obligatory contract upon the consignor of freight to put it upon another ship, when the consignor, to the knowledge of the master, has an agent at the intermediate port, without communicating with him and giving him the option of receiving the cargo there.3
§ 455. And here it is proper first to state, that although a master of a ship cannot generally delegate his authority to another person, yet this rule does not restrain him with the same force that it does agents in general. In cases of emergency or necessity, in a foreign port, in the absence of the owner or employer, he is invested with power to delegate his authority as master, whenever it may be necessary or proper for the welfare of the ship, or the accomplishment of the voyage.4
§ 456. And, in the first place, the master may contract for the purchase of the equipments and furnishings of the vessel, even at the home port, where the owners or their agents reside, unless it appear that the necessaries were furnished on the credit alone of the master.5 In this respect, the usage of trade has invested him with all the powers of a general agent, and his relation to the ship creates so strong a presumption of his authority, that special notice of the contrary would be required to overcome it.1 If, however, a ship's-husband be employed, the procurement of equipments and necessaries would be properly his duty, and no person, knowing such a fact, would be authorized to contract with the master in respect thereto.2 So, also, the master may borrow money for the purpose of procuring necessaries for the ship, and the owners will be liable therefor, if the circumstances of the case fairly justify him, whether the ship be in a foreign port or not.3 But his authority is limited by his necessities; and if the repairs have been obtained on credit, the master cannot afterwards borrow money to pay the bill,4 nor can he pledge the owners' credit for the care and maintenance of seamen injured by an accident and put on shore, if the vessel is able to proceed without them.5 Prima facie the master has no authority to draw bills and make notes for the use of the vessel, for the owners; nor has he any right as master, though a part owner, to insure for the other owners.6
1 Curtis on Merchant Seamen, p. 207; Story on Agency, § 36; Williams v. Nichols, 13 Wend. 58; Kendrick v. Delafield, 2 Caines, 67; Earle v. Rowcroft, 8 East, 126; The Vrouw Judith, 1 Rob. Adm. 150; The St. Nicholas, 1 Wheat. 417; Abbott on Shipping, pt. 2, ch. 4, § 1, n. 1.
2 Under what circumstances the captain can bind the owner by settlement for freight, see Alexander v. Dowie, 1 H. & N. 152 (1856).
3 Gibbs v. Grey, 2 H. & N. 22 (1857).
4 Domat, B. 1, tit. 16, § 3, art. 3; 1 Bell, Comm. 505 to 508, 5th ed.; Story on Agency, § 36; Dig. Lib. 14, tit. 1, 1. 1, § 5; Pothier, Pand. Lib. 14, tit. 1, n. 3.
5 Glading v. George, 3 Grant, 290; Winsor v. Maddock, 64 Penn. St. 231 (1870). See Negus v. Simpson, 99 Mass. 388.
§ 457. A master has no power to charge his owners by signing bills of lading for goods never put on board his vessel.7
1 Story on Agency, § 119; 1 Bell, Comm. p. 506, 507, 5th ed.; Abbott on Shipping, pt. 2, ch. 2, § 1 to 11; 3 Kent, Comm. 158 to 176; James v. Bixby, 11 Mass. 34; 1 Livermore on Agency, 157, 158 (ed. 1818).
2 1 Bell, Comm. 413; Marquand v. Webb, 16 Johns. 89; Schemerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Ex parte Bland, 2 Rose, 91.