but if that be unsatisfactory, as it frequently must be, he should, before he seeks his remedy against others, inquire for whose use and benefit his labour was given, or his goods supplied; who were the immediate owners, absolute or temporary, at the time the orders were received; under whose authority the captain acted; whose servant or agent, acting as such, he was at the time he gave them (k); and he may save himself much trouble if, instead of relying blindly on "the credit of the ship," or " of the owners of the ship," he be advised to make all these inquiries before he sets to work, or parts with the possession of his goods.

When a transfer is made only as a security for the payment of debts by way of mortgage, the person to whom the transfer is made, or any other person claiming under him, is not to be deemed the owner, nor is the person making such transfer to be deemed to have ceased to be the owner, except so far as may be necessary for the purpose of rendering the ship transferred available, by sale or otherwise, for the payment of the mortgage debt (7).

The primary intention of this enactment, adopted with some modification from former Register Acts, was probably to ascertain and define the real quality and amount of a mortgagee's interest, as the groundwork of the provision in the following section, which protects it, when duly registered according to the provisions above mentioned, against the assignees of a mortgagor becoming bankrupt, while the ship itself continues in his order and disposition as reputed owner. But it had other most beneficial objects (m). By the old Registry Acts, upon any alteration of property in any ship or vessel, an endorsement upon the certificate of registry was required to be made; and by the 34 Geo. 3, c. 68, s. 15, a form of endorsement applicable in its terms to an absolute sale or transfer only, was prescribed. At the Custom-house no deviation from this form was permitted, and the consequence was, that the register furnished no means of distinguishing between a transfer by way of mortgage, and an absolute change of property. Between the mortgagor and mortgagee this difficulty was obviated by executing two deeds-one an absolute conveyance (n), the other a deed of defeazance, the former of which only was registered. But strangers consulting the register or the certificate of registry for information, were frequently deceived by the entry; and so long as the register was considered by the courts conclusive as to the fact of

(k) See the cases, note (1), p. 24, ante. (4) 17 & 18 Vict. c. 104, ss. 70, 71. (m) No enactments can save people from the consequences of their own improvidence. Tradesmen supplying stores to ships should ascertain on whose account and by whose servants they are ordered. By reference to the ship's register, they may always readily learn what amount of beneficial property available for their security the owner has in the ship. An evil has sprung up since the passing of the modern Register Acts, little expected by their pro

moters, and not fairly imputable to any of their provisions. The mortgage of a ship being protected against the creditors of a bankrupt shipowner, is now a safe security for money; and men of small means are thus enabled to impose upon careless tradesmen by the appearance of property in ships which is found, when inquiries become necessary, to be little more than nominal.

(n) See Reid v. Cox, 1 C. & P. 602, and the judgment of Sir Thomas Plumer, in the case of Thompson v. Smith, 1 Madd. 395.

ownership, and ownership, when ascertained, was held to involve a responsibility for repairs and necessaries, without regard to the credit actually given, persons taking mortgages of ships were liable to sustain a loss from the very act intended by them for their security.

When the true criterion of liability had been determined by the decisions above considered, much of this mischief was removed; but the tradesman was still left without the means of ascertaining what amount of beneficial interest in the ship, really belonged to the apparent owner, and was often misled by the register, on which a trustee or mortgagee appeared as absolute owner, to seek payment for his labour or his goods, from one to whom upon inquiry, it was clear that credit had not been given.

Since this enactment, it has been doubted whether a mortgagee of a ship can insure the entire value of it (o). Yet, in the case of Dean v. M'Ghie (p), it was assumed that the words in the 45th section of 6 Geo. 4, "except so far as may be necessary to render the ship available by sale or otherwise," preserve to the mortgagee his right to take possession of the ship, and to claim the freight earned by her, and accruing due after he has taken possession; and in the case of Kerswell v. Bishop (q), sent by the Master of the Rolls for the opinion of the Court of Exchequer, in which the mortgagee of a vessel sought to recover freight accruing due after he had taken possession, although the mortgagor had been at the expense of the outfit (r), it was certified that the plaintiff was entitled to recover. If the mortgagor be only a part-owner, the claim of the mortgagee for freight will be limited to the net freight, after deducting outfit and disbursements (s). As, however, it is provided that the mortgagee shall not be deemed the owner, nor the mortgagor to have ceased to be the owner, except so far as may be necessary to make the ship available for the payment of the debt secured, where a mortgagor, who was also the owner of a ship's cargo, had become bankrupt, and the mortgagee did not take possession until her voyage was completed, it was held that he had no right to detain the goods for the freight, as both freight and goods had vested in the assignees (t).

When the mortgagee enters into the possession of the mortgaged property with a view to the sale of it, he is bound to act with the same care and prudence, and use every effort which a prudent proprietor would use to have the sale conducted under circumstances of the greatest advantage, and if he employs it, as it seems he may, for the

(0) Irving v. Richardson, 2 B. & Ad. 196. The mortgagor has an insurable interest to the extent of the full value. Alston v. Campbell, 4 B. P. C. 476.

(p) 4 Bing. 45; and see Cato v. Irving, 21 L. J. 675.

(9) 2 Crom. & J. 529, and 2 Tyrwhitt's R. 603; and see Brown v. North, 8 Ex. 1, where it was held that the mortgagee was only entitled to the freight (less than the current freight) specified in bills of lading signed

D

by authority of the mortgagor, though signed
after the mortgage, which was considered not
to invalidate an arrangement made pursuant
to previous authority from the mortgagor
and before the mortgage could be known.
(r) See Robinson v. McDonnell, 5 M. &
S. 228.

(8) Alexander v. Simms, 5 De G. M. & G. 57; and see Green v. Briggs, post.

(t) Branker v. Molyneux, 5. Jur. 773.

purpose of an adventure, which turns out a losing affair, he, and not the mortgagor, must bear the result of the loss (u).

8. The Liability of Owners and Charterers of Ships further considered.

It often happens that the charterer of a ship causes it to be laden either wholly or in part with goods belonging to other persons; in such cases, it seems that the charterer is to be considered as the owner of the ship with respect to those persons. But as different decisions have taken place, it is proper to notice them here.

In the case of Parish v. Crawford (x), an action was brought against the defendant, as owner of a ship, upon a promise alleged to have been made by him to the plaintiff to convey in his ship a quantity of moidores from London to Barbadoes, which had not been delivered there. The facts of the case were, that the defendant, the owner, had chartered the ship to one Fletcher for the voyage in question for a certain sum, and Fletcher was to have the freight of goods, but the freight of passengers was reserved to the defendant; and the defendant appointed the master, and covenanted with Fletcher for the condition of the ship and behaviour of the master. Fletcher took on board the moidores and other goods of the plaintiff and other persons, and received the freight for them. For the defendant it was objected, that although the ship was his property, yet he was not owner in such a manner as to be liable to this action, but that Fletcher was for this purpose the owner. Chief Justice Lee, however, before whom the cause was tried, was of opinion that the action might be maintained; and the plaintiff recovered damages to the value of the ship and freight (y). "The true consideration," said the Chief Justice, "is, Whether by anything done by Crawford, who is confessedly the owner of the vessel, in chartering it to Fletcher, he has discharged himself as owner? Crawford considers himself as the governor of the ship, and so covenants for the government of it during the voyage, and the ship was navigated by his master. Upon what foundation, then, is an owner chargeable but upon these two considerations-first, the benefit arising from the ship, which is the equitable motive; secondly, the having the direction of the persons who navigate it? And it is upon these two things taken

(u) Marriott v. Anchor Reversionary Company, 30 L. J. (N. S.) Ch. 122. De Mattos v. Gibson, ib. 145. Gardener v. Cazenove, 1 H. & N. 423; 26 L. J. (N. S.) Ex. 17. Wells v Palmer, 7 C. B. (N. S.) 340; 29 L. J. (N. S.) C. P. 194, in which, upon the terms of an assignment executed by an agent of the owners under a power of attorney, the ship and its earnings received and to be received were held to have passed to the assignees. See also Gumm v. Tyrie, 33 L. J., Q. B. 97, in which a mortgagee of a ship, having taken possession of her, was held entitled to the freight of goods shipped on account

of the mortgagor, but made deliverable "to shipper's order on payment of freight and conveyance" by bills of lading in the hands of the defendant, who had become the indorsee and holder of them, on taking up for the honour of the drawers bills of exchange which had been drawn against the goods.

(x) Shortly reported in 2 Stra. 1251. The account of the case here given is taken from a manuscript note much fuller than the report.

(y) 12 Geo. 2, c. 15. A statute which limits the responsibility of the owners. See part the third, ch. 5.

together that the implied contract arises. Though Crawford has not that freight which the merchants pay for their goods, yet, as he has the benefit of the freight in general, he has that equitable motive which makes him liable. With regard to Fletcher, what Crawford had done is only giving him a power to put goods on board; and it seems to me, the makers of the Act of Parliament could not have any notion of such an owner of the ship, for it speaks generally of owners of ships; but this Fletcher is not to be considered as owner of the ship in any light, but only as having a power to make use of it in this way. If this was to be considered in the nature of a mortgage, it would be delivering up the ship for such a time as the mortgage should be in force; therefore I think there is nothing appearing upon this evidence that discharges Crawford as the owner of the ship."

In the case of James v. Jones and others (z), an action was brought against the defendants, as owners of the ship Seaflower, for the loss of a quantity of raisins on a voyage from Faro to London. One Thomas, the master of the ship, had, in his own name as master, and in the absence of the owners, chartered the ship to Reed and Parkinson, on a voyage from Falmouth to Faro, and back to London; and Reed and Parkinson engaged by the charter-party to provide a full lading from Faro, and to pay a stipulated price per ton. The goods in question were shipped at Faro, by the consent of the agent of Reed and Parkinson at that place, and Thomas, the master, signed a bill of lading, engaging to deliver them to the plaintiff, "he paying freight per charter-party." These facts appearing at the trial of the cause before Lord Kenyon, he was of opinion, that Reed and Parkinson were, with respect to the plaintiff, the owners of the ship pro hac vice; that the defendants, Jones and others, were not responsible to him, and consequently that the plaintiff could not maintain his action. The plaintiff and his counsel did not apply to the court for a further consideration of the subject; but the beforementioned case of Parish v. Crawford does not seem to have been adverted to on this occasion.

In a more recent case, in which it appeared at the trial that a ship had been chartered by the defendants, who were the registered owners, to one De Beur, and was afterwards put up by him as a general ship, and that the plaintiff had shipped a quantity of oats which had been improperly sold by the master, and for which the action was brought, Lord Ellenborough held the defendants not answerable, and the plaintiff was nonsuited. The form of the bill of lading is not noticed in the report of this case, and therefore, I presume, it was not thought material at the trial (a). The gentlemen who were counsel for the plaintiff in this cause were certainly aware of the case of Parish v. Crawford, but they acquiesced in the decision.

(z) Guildhall Sitt. after Trin. Term, 39 (a) Mackenzie v. Rowe and others, 2 Geo. 3. There is a short note of this case Campb. 482. in Espinasse's Nisi Prius Cases, vol. 3, p. 27.

These two cases are inconsistent with the former, but they are conformable to the principle of judgments pronounced respectively by the Courts of Queen's Bench and Common Pleas on questions of insurance, wherein it was decided, first (b), that a deviation committed by the master, with the knowledge of the owner, and which, therefore, could not, according to the law of England, be an act of barratry with respect to him, was an act of barratry with respect to a third person who had hired the ship by a charter-party, and who was considered as owner for the particular voyage, with relation to the subject of that cause; secondly (c), that a wilful running of a ship ashore by the owner, with the privity of the master, was an act of barratry against the merchant, under whose sole control the entire vessel for a time was placed. They are conformable also to the principle of another decision. The registered owner of a ship let the vessel at a certain rent to the person who acted as master; this person ordered stores, which were supplied for the use of the ship, and for which an action was brought against the registered owner, but it was held that he was not answerable, because "during the existence of the lease" the master was not his servant, nor was the order given on his behalf (d). And probably the case of Parish v. Crawford is not to be considered as law; for although the absolute owner might in each of these cases be ultimately answerable to the charterer of the ship, yet there was no contract, either express or implied, between him and the proprietors (e).

(b) Vallejo v. Wheeler, Cowp. 143. (c) Soares v. Thornton, 7 Taunt. 627. (d) Frazer v. Marsh, 2 Campb. 517; 13 East, 238.

(e) Are these cases inconsistent with each other? The charter-parties in Mackenzie v. Rowe, and James v. Jones, are not set out in the reports of those cases. They, probably, like the charter party in Frazer v. Marsh, were such as to transfer the possession of the ship from the absolute owners to the charterers, so as to make the master and the crew the servants of the latter, and the contracts of the master the contracts of the charterers. This was plainly not the effect of the charter-party in Parish v. Crawford, for there the owner appointed the master, covenanted for his good behaviour, and reserved to himself the freight of passengers. From the report of that case, in 2 Strange, 1251, it also appears that bills of lading for the moidores were signed by the master. Those bills, it is submitted, were evidence of an express contract, between the shippers of the goods and Crawford, by whom the master was appointed and employed. If that be so, Parish v. Crawford does not appear to be inconsistent with principle or with other decided cases. It could hardly have been determined otherwise consistently with the doctrine of the civil law, Omnia facta magistri debet præstare qui eum præposuit-alioquin contrahentes deciperentur-upon which pas

sage of the Digest (lib. 14), Valin cites with approval this commentary of Peckius:"Quid enim interest per se exercitor, an per eum quem ipse substituit contractum ineat?

qui enim aliquem præponit, is clará et apertâ voce dicere videtur, hunc ego præposui, qui volet cum eo contrahat."-Comm. sur l'Ordonnance, liv. 2, tit. 8, art. 2.

Exercitor autem eum dicimus ad quem obventiones et reditus omnes perveniunt, sive is dominus navis sit sive a domino navem per aversionem conduxit, vel ud at tempus, vel in perpetuum.-Dig. lib. 14, de Exercitoria Actione.

According to this definition, Fletcher, in the case of Parish v. Crawford, was neither dominus nor exercitor navis. He might, to be sure, employ the master as his agent, to make contracts for his benefit with the shippers of goods, and be liable upon such contracts; but the question was, whether parties dealing with the master of the ship as master, were not entitled to seek compensation for the loss of their goods from the person to whose servant, acting as such, they had been entrusted for safe carriage? "The question," says Lord Tenterden in the three first editions of this work, "appears to have been rather a matter of form than of substance, for it seems clear that the owners were in each case (Parish v. Crawford and James v. Jones) liable to an action at the suit of the person to whom the ship was chartered, and who