a different construction, if he could show, not only that the same loss might have happened, but that it must have happened if the act complained of had not been done."

If a particular route be prescribed by charter-party, the master must pursue it-if the ship be destined to several places, he should sail to them in the order designated (c), or which may be usual— making such intermediate rests and stages only in the course of his voyage as the ordinary convenience of his employers, and the nature of the ship's service, may require (d).

If the ship be chartered for one of several ports, and to proceed to any particular place "for orders," he must proceed thither and wait there for such time as in the exercise of a prudent and honest discretion may appear to him reasonable, and should he not receive orders within such reasonable time, he must select such one of the mentioned ports of destination as may seem to him best (e). Slight deviations from the letter of the charter-party at the instance of the charterer's agent, may not, as against the charterer, affect his owner's rights upon it, but such deviations may not be to the extent of substituting a different voyage or a different cargo for those stipulated in the charter-party (f),-unless indeed in an emergency the agent be specially appointed to determine the course to be adopted by him (g).

If the ship be driven into a port out of the course of the voyage by tempest, or the master sail thither for any of the before-mentioned reasons, he must wait no longer than necessity requires, but sail again without delay; and for that purpose supply his ship with the requisite necessaries or repair as expeditiously as he can.

While a vessel is detained at a port of necessity, it seems to be no deviation to take in an additional cargo, if no additional delay or risk is occasioned thereby.

In an action on a policy of insurance on ship and freight from Spain to London, with liberty to touch and stay at any port or place whatever, without being deemed a deviation, the ship was obliged to put into Gibraltar for provisions, and, while she lay there, received some chests of dollars on board on freight, which occasioned no delay. It was objected, that as there was no liberty to trade, the underwriters were discharged; but the court held, that as there had been no delay, nor any increase or alteration of the risk, the plaintiff was entitled to recover (h).

So where a ship, insured from Stockholm to New York, with a cargo of sheep, having touched at Elsineur for convoy, and to pay the Sound dues, took in a fresh supply of provender for the sheep,

(c) Max v. Roberts, 12 East, 89.

(d) Beatsonv. Haworth, 6Term Rep. 531. Pratt v. Ashley, 1 or 6 Exch. 257.

(e) Sickens v. Irving, 7 C. B. (N. S.) 165; 29 L. J. C. P. 25.

(f) Sieveking v. Maas, 25 L. J. Q. B. 275; S. C. in error, ib. 358.

(g) Pole v. Cetcowich, 9 C. B. (N. S.)430; 30 L. J. C. P. 102.

(h) Raine v. Bell, 9 East, 195, overruling the Nisi Prius decisions of Stitt v. Wardell, 1 Esp. 610, and Sheriff v. Potts, 5 Esp. 96. See also Phillips on Insurance, c. 12, pp. 200, 201; and Mr. Justice Story's note to the American edition of this work.

without thereby occasioning any delay, the court. held that the underwriters were not discharged (i).

If the ship has the misfortune to meet with enemies or pirates, the master must perform the part of a valiant man, and make the best resistance which the comparative strength of his ship and crew will allow (k).

By the treatise called "The Guidon," it is declared, that if the master, by connivance with robbers, or by his entreaties, obtain from them any part of the cargo, by way of payment of his freight, he shall restore such part to the merchant, receiving the freight due in respect of it; and if the robbers pay him the freight of his ship, he shall give an account of the money paid, and the money shall be distributed by way of general average between the goods stolen and the freight of the ship (). I have already mentioned the provisions of the English legislature on this subject (m).

Should the ship in the course of the voyage become unseaworthy, it is the master's duty to repair her if she be in a place where repairs can be done, and if he neglect this duty, and an action be brought against his owners by the owner of goods necessarily thrown overboard on account of the ship's unseaworthiness, it is no defence that she was seaworthy at the commencement of the voyage (n).

4. Of the Master's Duty as respects the Cargo in the course of the Voyage.

If by reason of the damage done to the ship, or through want of necessary materials, she cannot be repaired at all, or not without very great loss of time, the master is at liberty to procure another ship to transport the cargo to the place of destination (o); but if his own ship can be repaired, he is not bound to send the cargo by another, but may detain it till the repairs are made, and even hypothecate it for the expense of them; that is, supposing it not to be of a perishable nature; if it be of such a nature, and there be not time or opportunity to consult the merchant, he ought either to tranship or sell it, according as the one or the other will be most beneficial to the merchant (p). So if the ship has been wrecked, and the cargo saved. And if on the high seas the ship be in imminent danger of

(i) Cormack v. Gladstone, 11 East, 347. See also Laroche v. Oswin, 12 East, 131.

(k) Ordinance of the Hanse Towns, arts. 35, 36, 37; Roccus, not. 70; ante, part 3, chap. 5, sect. 4. See Taylor v. Curtis, 6 Taunt. 608.

(7) Guidon, ch. 6, art. 2, p. 229. (m) Ante, part 2, ch. 5.

(n) Worms v. Storey, 11 Ex. 427; 25 L. J. Ex. 1.

(0) Laws of Oleron (art. 4), and Cleirac thereon. French Ordin. liv. 3, tit. 3, Fret,

art. 11, and Valin thereon. Molloy, book 2, ch. 4, sect. 5. Ordin. of Antwerp, 2 Magens, p. 14, art. 3. Ordin of Rotterdam, 2 Ma gens, p. 104, arts. 147, 148. See also the judgment delivered by Lord Mansfield in the case of Luke v. Lyde, 2 Burr. 889.

(p) See the judgment pronounced by Sir W. Scott, in the case of the Gratitudine, 3 Rob. Rep. p. 240. See the notes by Perkins to American edition of "Abbott, by Story and Shee," and the cases there cited, pp. 446, 447.

sinking, and another ship, apparently of sufficient abitity, be passing by, the master may remove the cargo into such ship; and although his own ship happen to outlive the storm, and the other perish with the cargo, he will not be answerable for the loss.

The disposal, however, of the cargo by the master is a matter that requires the utmost caution on his part. He should always bear it in mind, that it is his duty to convey it to the place of destination. This is the purpose for which he has been entrusted with it, and this purpose he is bound to accomplish by every reasonable and practicable method. Every act that is not properly and strictly in furtherance of this duty is an act for which both he and his owners may be made responsible; and the law of England does not recognise the authority of any tribunal, or officer, acting upon his suggestion or at his instance, but will scrutinize their acts as much as his own (q).

His authority extends to acts such as he, in the exercise of an honest judgment, thinks the best for the interest of the owner of both ship and goods; but if, though acting bond fide, and meaning to execute the duties of his employment of master, he, by mistake, sells goods which he ought not to have sold, he may be guilty of a conversion for which not only he, but his owners will be responsible (r).

The hypothecation of the cargo is allowed by the Marine Law, and by the law of England also; but it is allowed in those cases only

(q) See Hunter v. Prinsep and others, 10 East, 378, post, ch. 8 of this part. Van Omeron v. Dowick and others, 2 Campb. 42. Joseph and others v. Knox, 3 Campb. 320. See also part 1, ch. 1, sect. 2, p. 5, and the several cases of Reid v. Darby; the Fanny and Elmira ; Hayman and others v. Moulton and others; and Andrews v. Glover, there cited. Atkinson v. Stephens, 7 Exch. 567. In cases of this kind, the master of a ship should, when practicable to obtain an answer within a period not inconvenient as respects the exigency of the circumstances, communicate with the owners of the cargo, (see Gibbs v. Grey, 2 H. & N. 22; 20 L. J. Ex. 280; Cammell v. Sewell, 3 H. & N. 617; S. C. 5 H. & N. 728; The Bonaparte, 3 W. Rob. 298; Wilkinson v. Wilson, 8 Moore, P. C. C. 459; The Hamburgh. Duranty v. Hart, 33 L. J. P. C. 116,) or if communication with them be impossible, with their agents. His duty to the shipowner is to earn his freight. Unless they are willing to pay it, and take the goods, he should, on the advice given by them, exercise his judgment, without submitting it to their direction. If they decline the responsibility of acting or advising in the matter, he must use the discretion vested in him by law as the agent of shipowner and merchant to the best of his knowledge and

ability. If as agent for the shipowner, and in discharge of his engagement with the merchant, he enters into a contract for the carriage of the goods to their destination in another ship, there seems no reason why he should not, by procuring bills of lading making the goods deliverable to the consignees on payment of the original freight, constitute the master of that ship his agent to receive it, and to assert his lien upon the goods for it. In thus acting as agent for the shipowner to perform his contract with the merchant, the freight payable by the consignees will be subject to the same deductions for advances, &c., as the freight originally contracted for. Matthews v. Gibbs, 30 L. J. Q. B. 55. In a recent case it was held that a master having delegated his discretion to an agent of the freighter requesting him "to act on behalf of his owners to the best of his discretion and ability," and the authority thus given by him having been acted upon by incurring expenses, and a prudent sale of the goods, that he could not revoke the authority, and that the merchants were not liable in an action for wrongfully preventing him from carrying the goods to their destination, and earning freight. Blasco v. Fletcher and Fletcher, 14 C. B. (N. S.) 14; 32 L. J. (N. S.) C. P. 284.

(r) Ewbank v. Nutting, 7 C. B. 797.

in which it is made in furtherance of this purpose. The sale of a part has been allowed; but it was allowed in a case in which the hypothecation of the whole would have been lawful, and because it was considered as a matter equivalent to such hypothecation. Hypothecation imports a pledge without immediate change of possession (s); it gives a right to the party who makes advances upon the faith of it to have the possession, if his advances are not repaid at the stipulated time, but it leaves to the proprietor of the things that may be hypothecated the power of making such repayment, and thereby freeing them from the obligation. It is, therefore (as hath been before observed) (t), contrary to the nature of this proceeding, and consequently contrary to the duty, and beyond the power, of the master to engage that the lender shall at all events, have the goods delivered at their place of destination to him or his agents, to be there sold and disposed of by him or them, without reserving the right of redemption to the merchant; and such an engagement will not be obligatory upon the merchant, but he will still have the right to take his goods upon payment of the money for which they may have been engaged (u).

It is obvious that this purpose-viz., the conveyance of the goods to the place of destination-cannot possibly be effected by a sale of the whole of them, and therefore, according to the principles before mentioned, the master cannot, in his character of master, have authority to make such sale; nor does the law superadd such authority to his character (v). What, then, is the master to do, if, by any disaster happening in the course of his voyage, he is unable to carry the goods to the place of destination, or to deliver them there? To this, as a general question, I apprehend no answer can be given. Every case must depend upon its own peculiar circumstances. The conduct proper to be adopted with respect to perishable goods will be improper with respect to a cargo not perishable (w): one thing may be fit to be done with fish or fruit, and another with timber or iron; one method may be proper in distant regions, another in the vicinity of the merchant; one in a frequented navigation, another on unfrequented shores. The wreck of the ship is not necessarily followed by an impossibility of sending forward the goods, and does not of itself make their sale a measure of necessity

(8) Propriè pignus dicimus, quod ad creditorem transit; hypothecam, cum non transit, nec possessio ad creditorem.-Dig. 13, 7, 9, 2.

(t) Ante, part 3, ch. 3, sect. 5, pp. 128, 137.

(u) Johnson v. Greaves, 2 Taunt. 344. (v) Van Omeron v. Dowick and others, 2 Campb. 42. See also Brockbank v. Anderson, 7 Scott's N. R. 830.

(w) In cases of necessity or calamity during the voyage, the master is by law created agent for the benefit of all concerned; and his acts done under such circumstances,

in the exercise of a sound discretion, are binding upon all the parties interested in the voyage. Where a cargo is so much injured that it will endanger the safety of the ship and cargo, or become utterly worthless, it is the duty of the master to land and sell it at the place where the necessity arises, even although it might have been carried to the port of its destination, and there landed. Jordan v. Warren, Ins. Co. 1 Story, C. C. 342, cited in Perkins's American edition of "Abbott, by Story and Shee," p. 447.

or expedience: much less can the loss of the season, or of the proper course of the voyage, have this effect. An unexpected interdiction of commerce, or a sudden war, may defeat the adventure, and oblige the ship to stop on her course; but neither of these events doth of itself alone make it necessary to sell the cargo at the place to which it may be proper for the ship to resort. In these, and many other cases, the master may be discharged of his obligation to deliver the cargo at the place of destination, but it does not therefore follow that he is authorized to sell it, or ought to do so. What, then, is he to do? In general, it may be said, he is to do that which a wise and prudent man will think most conducive to the benefit of all concerned (x).

In so doing, he may expect to be safe, because the merchant will not have reason to be dissatisfied; but what this thing will be, no general rule can teach (y). Some regard may be allowed to the interest of the ship and of its owners, but the interest of the cargo must not be sacrificed to it. Transhipment for the place of destination, if it be practicable, is the first object, because that is in furtherance of the original purpose; if that be impracticable, return or a safe deposit (2) may be expedient. The merchant should be consulted if possible (a). A sale is the last thing that the master should think of, because it can only be justified by that necessity which supersedes all human laws. If he sells without necessity, his owners, as well as himself, will be answerable to the merchant (b), and they will be answerable if he places the goods at the disposal of a ViceAdmiralty Court, in a British colony, and they are sold under an order of the court, such a court having no authority to order a sale (c). And the persons who buy under such circumstances will not acquire a title as against the merchant, but must answer to him for the value of the goods (d).

"It is clear," said Lord Denman, delivering the judgment of the Court of Queen's Bench, in the case of Shipton v. Thornton (e),

(x) See the judgment of the Court of Common Pleas, delivered by Ch. J. Mansfield, in Christy v. Row, 1 Taunt. 313. The court appear to have thought that a master bringing back goods under such circumstances might be entitled to a compensation from the proprietor of the goods, although they held he could not recover anything against a charterer of his ship who was not the proprietor of the goods, the service not being for his benefit.

(y) I have not found any general rule or principle laid down on this subject in any of the foreign ordinances or authors. The French Ordin., tit. Du Fret, art. 6, is as follows:-" S'il arrive interdiction de commerce avec le pays, pour le quel le vaisseau est en route, et qu'il soit obligé de revenir avec son chargement, il ne sera du au maitre que le fret de l'aller, quand même le navire

auroit été affrété allant et venant.”—And Code de Commerce, art. 299.

(z) See an instance of deposit, which seems not to have been questioned, in Liddard v. Lopes and another, 10 East, 526, post, ch. 9.

(a) See Wilson v. Miller and others, 2 Stark. 1.

(b) Freeman and another v. East India Company, 5 B. & A. 617, and Wilson v. Dickson, 2 B. & A. 2. To the extent of the value of the ship at the time of the sale, and of the freight she would have earned: the Triune, 3 Hagg. 114.

(c) Cannan and others v. Meaburn and others, 1 Bing. 243, and 8 B. Moo. 127. (d) Morris and another v. Robinson, 3 B. & C. 196.

(e) 1 Perry & Davidson, 216; 9 Adol. & E. 314. See the facts of that case, post, ch. 9.