by adequate circumstances. In the latter case, however, the circumstances must be such as would show conclusively that the creditor intended to charge the one, and not to charge the other; and it is doubtful whether a mere entry on his books charg ing either party would suffice to do this. But it is customary for persons who deal in supplying vessels, to make the charge to the vessel itself, adding sometimes such words as "and all concerned in her."2 This would be the same as to the ship "and owners."

An owner is responsible as such, who is actually an owner, although not registered as such, and his name does not appear on the papers of the ship.3

As the master may raise money for the ship, or expend his own, or procure supplies, or make other necessary and beneficial contracts, and is personally bound on those contracts, out of this grows his lien on the ship or the freight, for whatever is due to him. How far this lien extends, and indeed in what cases it exists, the authorities do not, perhaps, enable us to state very positively. In England it has been held that he can have no lien on the ship, and therefore none on the freight, because this is a mere incident to the ship.

Some early cases moderated the severity of this rule somewhat, and gave him this lien for his disbursements; 5 but they are now overruled. In this country, the law seems now to be, that the master has no lien on the ship for his wages, or for his disburse

1 See ante, p. 91, n. 3. 2 See ante, p. 91, n. 3.

3 See ante, p. 40, n. 2.

4 Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East, 426; The Johannes Christoph, 33 Eng. L. & Eq. 600. But see Watkinson v. Bernadiston, 2 P. Wms. 367, note, where the Master of the Rolls decreed that sums disbursed by the captain on account of the ship in foreign ports, together with the wages of himself and crew, should be paid out of the proceeds of the ship, as they constituted a lien upon it.

5 White v. Baring, 4 Esp. 22. So in equity, Hussey v. Christie, 13 Ves. 594; Ex parte Halkett, 3 Ves. & B. 135, 2 Rose, 194, 229, 19 Ves. 474; Pierson v. Robinson,

3 Swanst. 139, n.

Smith v. Plummer, 1 B. & Ald. 575; Atkinson v. Cotesworth, 3 B. & C. 647, 5 Dowl. & R. 552; Gibson v. Ingo, 6 Hare, 112.

The Ship Grand Turk, 1 Paine, C. C. 73; Revens v. Lewis, 2 Paine, C. C. 202; Fisher v. Willing, 8 S. & R. 118; Gardner v. The New Jersey, 1 Pet. Adm. 223; Phillips v. The Thomas Scattergood, Gilpin, 1; Steamboat Orleans v. Phoebus, 11 Pet. 175; Willard v. Dorr, 3 Mason, 91; Dudley v. The Steamboat Superior, U. S.

ments. But for both of these he has a lien on the freight according to the best authorities.2 But he has no lien for a general account. If the cargo belongs to the owner of the ship, it has been held that the master has a lien on it for his disbursements.4

And if he has a lien on the freight, it would follow that he might detain the goods even against a shipper or consignee who had paid the freight to the owner of the ship, if the consignee had been duly notified by the master of his claim and lien, and ordered not to pay the owner.5

D. C., Ohio, 3 Am. Law Register, 622; Hopkins v. Forsyth, 14 Penn. State, 34; Richardson v. Whiting, 18 Pick. 530; Case v. Woolley, 6 Dana, 17, 22. But if a person is merely called a master, but is not one in fact, he can proceed against the ship in rem for his wages. L'Arina v. Brig Exchange, Bee, Adm. 198.

1 In Gardner v. The New Jersey, 1 Pet. Adm. 223, 226, it was held that a master who paid claims which were liens on the vessel, was substituted in place of the lien creditors, and acquired a lien on the vessel. See also, Bulgin v. Sloop Rainbow, Bee, Adm. 116. Mr. Justice Story in the Ship Packet, 3 Mason, 255, 263, suggested that the master might have a lien on the ship where he used his own money to repair her in preference to borrowing on bottomry. But that he did not mean to express an opinion that generally a master has a lien on the ship for disbursements is evident, for in Steamboat Orleans v. Phœbus, 11 Pet. 175, he expressly states that this right does not exist. In a recent case before Mr. Justice Curtis, the whole question was learnedly examined, and it was held that no lien on the ship existed in such a case. The Larch, 2 Curtis, C. C. 427. See also, Hopkins v. Forsyth, 14 Penn. State, 34. By an early statute in Connecticut, the master in case of the neglect of the part-owner to furnish the outfits, could supply them and look to the vessel, but had no personal remedy against the owner. Brook v. Williams, 2 Root, 27.

2 That he has a lien on the freight for his disbursements, see Lane v. Penniman, 4 Mass. 91; Lewis v. Hancock, 11 Mass. 72. In which case the court said: "He may be understood, as against the owner himself, to have the same right in the freight-money which a factor or consignee has in the goods of the principal or consignor, for whom money has been advanced, or any liabilities have been incurred, in consequence of the employment or consignment. The master of a vessel in a foreign port, and at home after a voyage performed, has many liabilities, from which he may have cause to protect himself, by insisting on his right to collect the freight-money." See also, Ingersoll v. Van Bokkelin, 7 Cow. 670, 5 Wend. 315; The Ship Packet, 3 Mason, 255; Drinkwater v. Brig Spartan, Ware, 149; Richardson v. Whiting, 18 Pick. 530. If by the shipping articles the master is directly responsible to the seamen for their wages, it would seem that he might retain the freight to indemnify himself. See Goodridge v. Lord, 10 Mass. 483. In regard to his lien on the freight for his wages, see Drinkwater v. Brig Spartan, Ware, 149; Richardson v. Whiting, 18 Pick. 530, 532. In Ingersoll v. Van Bokkelin, 7 Cow. 670, the Supreme Court held that he had a lien on the freight for his wages, but this decision was reversed by the Court of Errors, 5 Wend. 315. 8 Shaw v. Gookin, 7 N. H. 16. See also, Hodgson v. Butts, 3 Cranch, 140. 4 Newhall v. Dunlap, 14 Maine, 180.

5 See ante, p. 256, n. 4.

SECTION III.

HOW FAR THE OWNER IS LIABLE FOR THE TORTS OF THE MASTER.

The owner is liable not only upon the contracts of the master of the kind above designated, but also for his wrong doings, and the injuries resulting from them, to a certain extent.1 We consider that the principles of the law of agency, or of the relation of master and servant, suffice to measure this liability and to determine where it exists. Thus, the vessel and owners are liable for the delay of the master in presenting a proper manifest so that the owner of goods can pass his property through the custom-house, but they are not responsible for a tortious endeavor on the part of the master to prevent the owner from obtaining his goods. If a vessel is chartered, and the master is the agent of the owners, it is his duty to collect the freightmoney for the benefit of the charterers; and if he neglect to do so his owners are liable, unless the charterers directed some other person to collect it. And if a master, by want of skill or care, brings his ship while navigating her into collision with another and inflicts injuries thereby, the owner is certainly liable. But it has been held that the owners are not liable for a wilful col

1 By the general rule of the maritime law, the owners of a vessel are liable for all injuries caused by the misconduct, negligence, or unskilfulness of the master, provided the act be done while acting within the scope of his authority as master. Beawes, Lex Mercatoria (4th London ed.), 54; Stinson v. Wyman, Daveis, 172; The Waldo, Daveis, 161; Dusar v. Murgatroyd, 1 Wash. C. C. 13, 17.

The owner of a vessel is liable for the tort of the master in shipping a minor without the consent of his father, if the master knew this fact at the time; the knowledge of the servant being considered equivalent to knowledge by the principal. See ante, p. 383, n. 1.

2 The Zenobia, Abbott, Adm. 80, 93. So, in The Aberfoyle, Abbott, Adm. 242, 1 Blatchf. C. C. 360, it was held that a vessel was liable in rem for the wrongful act of the master in putting a passenger on short allowance, unless it was proved that the master's act was malicious and wrongful.

3 Welch v. McClintock, S. J. C., Mass., Nov. T. 1857.

The Thames, 5 Rob. Adm. 345; Stone v. Ketland, 1 Wash. C. C. 142; Martino v. Boggs, 1 La. Ann. 74. See also chapter on collision, ante, p. 187–211.

lision. So if the master embezzles goods put on board, the owner is liable.2 But he is not liable if the master embezzles or injures goods which he took on board to fill his own privilege, and received all the freight, commissions, and profits on them.3 Nor is he responsible for goods clandestinely taken on board by the master, when the owner is himself on board, managing the lading of the vessel, or appointing an agent expressly therefor, and employing the master only in navigating the ship, and the shipper either did know this, or has sufficient notice to put him on his guard. Nor is he responsible for money which the mas

1 The Druid, 1 W. Rob. 391; Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480, 2 Comst. 479. A contrary decision was however given in Ralston v. The State Rights, Crabbe, 22, 44, on the authority of the distinction pointed out by Mr. Justice Washington in the case of Dias v. Privateer Revenge, cited in a subsequent note. Mr. Justice Hopkinson said: "In the case now before this court, I do not understand it to be denied, that the owners of a vessel are answerable for the acts of their captain done within the course and scope of his employment and business. Is this not enough for this case? Assuredly it was within the course and scope of the employment and authority of Captain Allen to direct The State Rights to be steered at his pleasure; he had full power to do this, derived from his owners, and all on board were bound to obey his orders, without interposing their judgment as to the consequences to him or his owners. If by the execution of such an order a wrong is done to another party, on what principle of the common or maritime law can the owners of the offending vessel, the principals of such an agent, whom they have armed with the power to do the wrong, throw the responsibility from themselves? It is widely different from the case of the commission of a crime by the captain, which cannot be imputed to his owners, or be intended to come within the employment or authority committed to him." In Duggins v. Watson, 15 Ark. 118, a party who owned goods on board one vessel, brought an action against the owners of a colliding vessel, and the court ruled that he was entitled to recover, although the collision was wilfully caused by the master of the colliding boat. This case was decided on the authority of Philadelphia & Reading Railroad Co. v. Derby, 14 How. 468, cited post, p. 394, n. 3; but it does not fall within the exception upon which that case rested, and was wrongly decided unless the principles contended for by Hopkinson, J., in the above case, be correct.

2 Boucher v. Lawson, Cases temp. Hardw. 78, 183.

8 King v. Lenox, 19 Johns. 235; Boucher v. Lawson, Cases temp. Hardw. London ed. 85, 194; Dublin ed. 78, 183. But in Phile v. The Anna, 1 Dall. 197, an owner of a vessel was held liable for the tort of the master in smuggling goods, which were part of the master's privilege, and did not belong to the general cargo of the ship.

4 Walter v. Brewer, 11 Mass. 99; Reynolds v. Toppan, 15 Mass. 370; Ward v. Green, 6 Cow. 173. In Walter v. Brewer, the owner was with his vessel at Monte Video, for the purpose of taking a cargo for himself, and not intending to take freight for others. The master, without the knowledge of the owner, took on board a few bales of Neutra skins, to carry to Boston. It was in evidence that the bales would not more than fill the "privilege," which the masters of vessels, in a case like that, were

ter borrows for his own private purposes, unless the lender believed on sufficient reason that it was borrowed for the ship.1 The owners of a privateer are responsible for the torts of the officers and crew committed in the exercise of their employment,2 but they are not liable for piratical acts committed by such officers and crew. All of these cases, and very many more of

accustomed to have. The judge, at Nisi Prius, instructed the jury, "That, although the owners of ships were generally liable for the contracts of their masters abroad touching the ship on the voyage; yet, as the owner, in this instance, had himself gone in the ship, for the purpose of procuring a cargo, and as the ship was not put up for freight, and as the defendant was not consulted respecting this shipment, nor the persons who attended to his business in his absence, but they were taken on board without his knowledge, he was not accountable originally for the safe transportation and delivery of the goods; but that, if the jury believed that the defendant knew, before his ship sailed from Monte Video, that these bales had been taken on board by the master, he must be considered as having adopted the act of the master, and as having consented thereto, and so would be accountable." These instructions were held to be correct, with the exception that it was not sufficient to charge the owner that he knew that the goods were taken on board, but that he must have "knowledge that the goods were received on board upon freight." In Nichols v. DeWolf, 1 R. I. 277, it was held that where an owner sent a vessel on his own account, the master as such had no authority to sign bills of lading." But in Murfree v. Redding, 1 Hayw. 276, the owner denied his liability for the breach of a contract of affreightment entered into by the master, on the ground that the latter was put on board merely to navigate the vessel. But the court were of opinion that as he was held out as master, the contract being within the scope of his authority, the owner was liable.

1 See post, p. 413, n. 7.

2 The San Juan Baptista, 5 Rob. Adm. 33; The Karasan, id. 291; Die Fire Damer, id. 357; Nostra Signora de los Dolores, 1 Dods. 290; L'Invincible, 1 Wheat. 238; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 1 Paine, C. C. 111, 3 Wheat. 546; Talbot v. The Commanders of Three Brigs, 1 Dall. 95; Del Col v. Arnold, 3 Dall. 333; Arnold v. Del Col, Bee, Adm. 5; Gibbs v. The Two Friends, Bee, Adm. 416. In The Amiable Nancy, supra, a doubt was expressed whether the liability extended to personal trespasses committed by the master and crew against persons on board the prize. Some of the cases above cited would seem, however, to extend the liability of the owners to a greater extent than more modern cases would justify. Dias v. The Privateer Revenge, 3 Wash. C. C. 262, 268. countenance a distinction which has been sometimes taken offences for which the master is criminally responsible. Rights, Crabbe, 22.

This case might seem to between mere torts and See Ralston v. The State

But the writers on maritime law do not appear to make any distinction in this respect between acts which are criminally punishable, and such as are not, nor is it apparent how they could do so, save in the case of offences against the law of nations; and Dr. Lushington, in the case of The Druid, 1 W. Rob. 391, intimated that he believed none to exist. In Manro v. Almeida, 10 Wheat. 473, it was argued that, as the trespass complained of was alleged to have been piratically done, the civil remedy merged in the crime. The court said: "But this we think, clearly, cannot