Master gene CHAPTER V. THE MASTER'S DUTIES AND POWERS WITH RESPECT § 235. WITH respect to the cargo, the master is primarily rally agent of and generally the agent of the shipowner, to convey it safely to shipowner. the place of its destination, in order to earn freight. In the ordinary state of things, he has nothing to do with the cargo, except to keep and convey it safely as such agent; and he is equally with the shipowner responsible for its safety. (a) But, as (a) Mors v. Slue, 1 Vent. 238. we shall see, circumstances may arise during the voyage which render it expedient and necessary that he should act for the owner of the cargo, and in such cases, as will be seen,(b) the wise policy of the law, founded upon the experience of many nations aud many centuries, invests him with an implied authority from such owner to do so. As agent of the shipowners, the master is entrusted with the His duties as cargo for the purpose of conveying it safely to its destination. such agent. This purpose he is bound to accomplish by every reasonable and practicable method. (e) Accordingly, as such agent he is bound to receive the cargo, to stow it properly, to ventilate it when necessary, to take all possible care of it during the voyage.(d) carrier. § 236. The master and shipowners being prima facie common Extent of carriers of goods (e) for hire, are at common law, irrespectively master's responsibility for of the terms of the contract of carriage, regarded as insurers the goods. against all loss or injury occasioned to the goods delivered to As common them on freight by fire, robbery, even when effected by superior force, or any cause other than the act of God or the king's enemies, (f) or the natural deterioration or inherent vice of the goods themselves.(g) Usually limited by express excep But their right to limit this liability by express contract is usually exercised, both in the charter-party and in the bill of lading, by a clause expressly saving them from liability for tions. certain specified perils, in some such form as this:-" The act of God, the king's enemies, fire and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, during the said voyage, always excepted."(h) And the master is not responsible for injury to the cargo caused by any of the risks covered by such exceptions, unless he, or some member of the crew in the course of his employment,(i) has been guilty of a want of reasonable skill, diligence, and care,() or of some breach of contract causing the loss.() (b) Infra §§ 238–242. (c) Cammell v. Sewell, 3 H. & N. at p. 644; 5 ib. 728; Tronson v. Dent, 8 Moo. P. C. 419, 449; Assecurazioni, &c. v. Steamship Bessie Morris Co., (1892) 1 Q. B. 571; 2 Q. B. 652. (d) Abbott, 13th ed., 430; Parsons Sh. 20. Per Willes, J., "That a duty to take care of the goods generally_exists cannot be doubted;" Notara v. Henderson, L. R. 7 Q. B. at p. 230. As to his duties of receiving, stowing, &c., the cargo, see infra §§ 247-259. (e) Abbott, 13th ed., 468, 469; Smith's Merc. Law, Bk. III., c. 2; Coggs v. Bernard, 1 S. L. C. 9th ed. 200, 215, and notes, 236; Mors v. Slue, 1 Vent. 238; Dale v. Hall, 1 Wils. 281; Story on Bailments, 496; Laveroni v. Drury, 8 Ex. 166; Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338; see, however, per Cock- (f) Forward v. Pittard, 1 T. R. 27; (g) Nugent v. Smith, 1 C. P. D. 423; (i) See Story on Agency, 314; supra (k) Notara v. Henderson, L. R. 7 Q. B. at p. 235; Dale v. Hall, 1 Wils. 281. () As by carrying goods on deck without liberty to do so: Royal Exchange Shipping Co. v. Dixon, 12 Ap. Ca. 11; reported below, 33 W. R. 868 (sub. nom. Newall v. Royal, &c., Co.). When excep tion in bill of lading does not protect master. Exception of master's negligence. Master's duty in case of damage to ship, or cargo. But the exceptions in the contract of carriage do not, in the absence of an express stipulation, exempt either shipowner or master from the consequences of not using reasonable skill, diligence, and care; but only from the absolute liability of a common carrier, so far as the excepted causes are concerned. Therefore, notwithstanding those exceptions, if it is proved that the injury was caused by the negligence or breach of contract of the owners or master, or of the persons employed by them in navigating the ship, they are liable, even when the exceptions cover the cause of injury.(m) In the absence of such proof, however, the exceptions protect both master and owners from the consequences of all damage apparently caused by any of the excepted perils.(n) A wider protection is often obtained by the addition to the list of exceptions of such words as "even when occasioned by the negligence of the pilots, master, mariners or other servants of the shipowners."(o) But the mere insertion of such words in a charter-party to which the master was not a party, or in a bill of lading given by some agent of the shipowner other than the master, would not, as it seems, protect him from liability for loss or injury caused to the goods by his own negligence.(p) § 237. The duty of the master in case of damage to the ship is to do all that can be done towards bringing the adventure to a successful termination; to repair the ship, if there be reasonable prospect of doing so at an expense not ruinous, and to bring home the cargo and earn the freight, if possible.(g) He should not in any case, where any other course is possible, expose the cargo to risk by proceeding on the voyage with the ship in an unseaworthy condition. (r) And he may even in certain cases of necessity hypothecate the cargo or sell a part of it for the cost of repairs or supplies to the ship, or of obtaining her release in case of capture or arrest.(s) There are some cases where the master, as representing the shipowners and their interest, is bound to take active measures for the preservation of the cargo from loss or deterioration in case of accidents; as, for instance, when a perishable cargo is so (m) See per Willes, J., Notara v. Henderson, L. R. 7 Q. B. at p. 235; Grill v. General Iron, &c., Co., L. R. 1 C. P. 600; L. R. 3 C. P. 476; Lloyd v. Same Co., 3 H. & C. 284; Phillips v. Clark, 2 C. B. N. S. 156; Czech v. G. S. Nav. Co., L. R. 3 C. P. 17; Leuw v. Dudgeon, ib., note; Royal Exchange Co. v. Dixon, 12 Ap. Ca. 11. (n) Czech v. G. S. Nav. Co., L. R. 3 C. P. 17; Ohrloff v. Briscall, L. R. 1 P. C. 231, 240. (0) As in The Cressington, (1891) P. 152; and see Norman v. Binnington, 25 Q. B. D. 475. (P) The meaning and effect of exceptions in the contract of carriage is further discussed infra §§ 356-369; see also $$ 147, 148 sup. (q) Benson v. Chapman, 2 H. L. 696, 720; Assecurazioni, &c., v. Steamship Bessie Morris Co., (1892), 1 Q. B. 571; 2 Q. B. 652. (r) Worms v. Story, 11 Ex. 427. (s) See as to Hypothecation, Chap. IX., infra; as to sale, §§ 412-417 infra. damaged by sea water that it cannot in its existing state be taken forward in specie to the port of discharge, so as to earn freight, but where it could, at an expense considerably less than the freight, be dried and carried on. In such case if it be for the interest of the shipowner to dry it, and if it can be done without delay,(t) it is the duty of the master to do so.(u) As Agent of the Owners of the Cargo. of owners of § 238. Sometimes the master is appointed supercargo, or When master consignee of the cargo, in which case the rights and duties of becomes agent the latter character are superadded to his ordinary rights and cargo. duties.(x) Apart from such appointment, the character of agent for the owners of the cargo is imposed upon the master by the necessity of the case, and by that alone. In the absence of such necessity, he has no right, without express authority, to assume to act as such agent. If, therefore, according to the circumstances in which he is placed, communication can be had with the cargo-owners or their agents, and they can give their own orders, the character of agent is not imposed upon the master, because the necessity which creates it does not arise. And if it is reasonable to expect that he might obtain an answer within a Duty of master time not inconvenient, looking to the circumstances of the case, cate where it is his duty to communicate with the cargo-owners, or at least reasonably to attempt to do so, before assuming to act for them.(y) The possibly. possibility of communicating must be construed by estimating the cost and risk incidental to the delay which will be caused by the attempt to do so, and the probability of failure after every exertion has been made.(z) to communi municate. § 239. In every contract to carry for freight there is an His duty when implied obligation on the part of the shipowner that, in the event he cannot comof any disaster happening to the ship or cargo in a port where correspondence cannot be had with the freighter, the master shall act as agent for the freighter, and use the best efforts for the protection of his interests. The master must, in any such emergency, To act as put himself in the place of the owner of the cargo, and do what the prudent cargolatter, as a prudent man, would himself do for his own interest, if he were present, and use all reasonable means to preserve and take care of the goods;(a) always remembering that his primary owner. The duties of master as agent for owners of cargo; duty, as well to the freighter as to the shipowner, is to complete the voyage upon the terms agreed upon, unless such a course is either "physically impossible or so clearly unreasonable as to be impossible in a business point of view." And, so far as the ship herself is concerned, there is no such impossibility, if the expense of repairing her sufficiently to complete the voyage is not greater than her value when so repaired.(6) As representative of the shipowner, it is the master's duty to the owner of the cargo to take reasonable care of the goods entrusted to him, not merely by doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but also by taking active measures, where reasonably practicable under all the circumstances, to check and arrest the deterioration. loss or deterioration resulting from accidents, for the necessary and immediate consequences of which the shipowner is not liable by reason of the exception in the bill of lading.(c) to check Right to recover disbursements from cargo owner. Under what circumstances master must take steps to preserve cargo from growing damage. The duty, imposed by necessity, to act for the safety of the cargo in such manner as may be best under the circumstances, implies a correlative right to charge its owner with the expenses properly incurred in so doing.(d) And a shipowner or master who, through such circumstances, finds it necessary for the safety of the cargo to incur expenditure is justified in doing so, and can maintain a claim for reimbursement against the owner of the cargo.(e) He may also, in certain cases of necessity, hypothecate the cargo in order to raise the necessary expenses of its preservation.(f) § 240. In determining whether under the circumstances the master ought to have taken active special measures to preserve the cargo from growing damage by accident, a fair allowance must be made for the difficulties in which he was involved. The place, the season, the extent of the deterioration of the goods, the opportunity and means at hand, the interests of other persons concerned in the adventure, whom it might be unfair to delay for the sake of the part of the cargo in peril-in short, all circumstances affecting risk, trouble, delay, and inconvenience-must be taken into account. Nor ought it to be forgotten that the master has to exercise a discretionary power, and that his acts are not to be censured merely because of an unfortunate result, unless it can Bessie Morris Co., (1892) 1 Q. B. 571; 2 (b) Per Collins, J., Assecurazioni &c., (e) Notara v. Henderson, L. R. 5 Q. B. 346; 7 Q. B. 225. |