where the provisions of the sections of the statute in question in respect of the stowage of timber on deck are violated, the voyage is illegal, and a policy of insurance on such a voyage will not attach, they equally decide that knowledge on the part of the assured of the timber being so stowed is necessary to avoid the policy, and that in the absence of such knowledge the assured may recover. In the present case the assured did not in fact know of timber being stowed on the deck, or of any intention on the part of the master so to stow it. But, the insurance being on freight, it is said that, as the stowing of the cargo is immediately within the province and duty of the master, the assured, the shipowner, must be considered as bound by the act of the master as his agent, and that the knowledge of the latter must, in law, be taken to be that of the owner. Admitting, of course, the general rule that a principal is bound by the acts and knowledge of his agent, while acting within the scope of his authority, we are of opinion that the rule has no application in the present case. For, although it is true that the stowing of the cargo is undoubtedly within the authority of the master, yet, in the absence of proof to the contrary, it must be taken that his authority, in this as in other respects, is by his instructions limited to that which is lawful. "The trust reposed in the captain of a vessel," says Lord Ellenborough in Earle v. Rowcroft (a), "obliges him to obey the written instructions of his owners where they give any: and where his instructions are silent, he is at all events to do nothing but what is consonant to the laws of the land, whether with or without a view to their advantage: because in the absence of express orders to the contrary, (a) 8 East 126. 133. 1865. WILSON V. RANKIN. 1865. WILSON V. RANKIN. obedience to the law is implied in their instructions. Therefore, the master of a vessel, who does an act in contravention of the laws of his country, is guilty of a breach of the implied orders of his owners." Applying this principle to the present case, it follows that no authority can be implied in the master, in the discharge of his duty, to do that which with reference to this part of his duty was a violation of the law. Again, it is a well established distinction that, while a man is civilly responsible for the acts of his agent when acting within the established limits of his authority, he will not be criminally responsible for such acts, unless express authority be shewn, or the authority is necessarily to be implied from the nature of the employment, as in the case of a bookseller held liable for the sale by his shopman of a libellous publication. Under ordinary circumstances the authority of the agent is limited to that which is lawful. If, in seeking to carry out the purpose of his employment, he oversteps the law, he outruns his authority, and his principal will not be bound by what he does. Now, in the present case, as has been already pointed out, not only are there no circumstances from which an authority to contravene the statute can properly be implied, but, according to the authority of Earle v. Rowcroft (a), the reverse is to be presumed. It appears to us, therefore, impossible to say that the master, in stowing the cargo on deck contrary to the Act of Parliament, was acting by the authority of his owner, or that the latter was bound by his knowledge. This view of the law as here applicable becomes materially confirmed if the case be looked at in another (a) 8 East 126. 133. point of view. It seems clear on the authority of Earle v. Rowcroft that if the master of a vessel, acting within what otherwise would be the extent of his authority, contravenes some positive law, and thereby causes injury to his owners, this will be barratry in the master, notwithstanding that the purpose of the thing done was to benefit the owners. In the case referred to, the master, having instructions to make the best purchases with dispatch, had gone into an enemy's port to complete his cargo which could be more speedily and cheaply obtained. there, in consequence of which the ship was seized and confiscated. This proceeding on the part of the master, though within the general scope of his authority, and though done in the interest of his owners, was held to be barratrous; and the owner, on a policy in which barratry of the master was insured against, was held entitled to recover. Within the principle of this decision, the soundness of which never has been questioned, the conduct of the master in the present case would have amounted to barratry, as being an unlawful act done in contravention of his duty, though with the intention of benefiting his owners. Had the statute attached the forfeiture of the vessel as the penalty of the offence, and the vessel had been confiscated, the owner would have recovered on an insurance against loss by barratry. Now, to constitute barratry, there must necessarily be an absence of consent and knowledge on the part of the owner. Where an act which would otherwise be barratrous is done with the assent and knowledge of the owner it ceases to be barratrous. If, therefore the knowledge of the master could be taken to be the knowledge of the owner, an illegal and therefore otherwise barratrous act done by the master would not, in case of loss occasioned thereby, give the owner 1865. WILSON v. RANKIN. 1865. WILSON V. RANKIN. a right to recover. But Earle v. Rowcroft (a) directly establishes that, on loss occasioned by the illegal act of the master without the authority of the owner, the latter may recover, and therefore shews that, where the master does an illegal act which but for its illegality would be within the scope of his ordinary authority, but which, being illegal, is barratrous, this will not amount, in point of law, to assent or knowledge on the part of his employer. For these reasons it appears to us that the plaintiff in this action cannot be taken to have constructively, any more than he had actually, knowledge of the illegal act of the master; and that, consequently, within the decision in Cunard v. Hyde (b), he is entitled to recover; and that our judgment, therefore, should be in his favour. I should add that this judgment must be taken as that of my brothers Blackburn, Mellor and myself. My brother Crompton, having been obliged to leave the Court before the argument was concluded, takes no part in the judgment. The defendant having brought error on this judgment the case was argued on the 27th November, 1865; before ERLE C. J., POLLOCK C. B., WILLES and BYLES JJ., and CHANNELL and PIGOTT BB. Cohen, (Mellish with him), for the defendant.-The (a) 8 East 126. 133. (b) E. B. & E. 670; 2 E. § E. 1. fourth plea is good. First. The master of this ship committed a violation of The Customs Act, 16 & 17 Vict. c. 107. ss. 170. 171. 172., by placing cargo on the deck, as also by not having obtained the certificate required by sect. 170; and for that violation the insurance on the freight is void. The Court below ruled otherwise on the authority of Cunard v. Hyde (a), but those cases may be questioned here. If an agent negligently does an illegal act his principal is liable. The Roman law laid down, "Procuratoris autem scientiam et dolum nocere debere domino, neque Pomponius dubitat, nec nos dubitamus;" Dig. lib. 14, tit. 4, 1. 5, cited in Smith Merc. Law, 152, 7th ed.; and in our own law the Court of Exchequer was equally divided on the point (6). At all events it would be against public policy to allow a principal to take advantage and receive the benefit of the illegal act of his agent, as the plaintiff in this case is seeking to do. If a merchant gives his master a general power to obtain goods, and he without the knowledge of the master sells them to be smuggled, perhaps no action would lie against the merchant, but he could not take advantage of the transaction. [He cited Hobbs v. Henning (c).] The master in this case is agent of the owner of the ship, not of the owner of the goods: Lord Ellenborough, in his judgment in Bell v. Carstairs (d), distinguishes that case from Dawson v. Atty (e) on this ground. Secondly. The judgment of the Court below proceeded on the ground that a voyage with deck cargo (a) E. B. & E. 670; 2 E. & E. 1. (b) See Cornfoot v. Fowke, 6 M. & W. 358, and Udell v. Atherton, 7 H. & N. 172. (c) 17 C. B. N. S. 791. (e) 7 East 367. (d) 14 East 374. 393. 1865. WILSON V. RANKIN. |