Provost v. . Patchin

*239 Mason, J. There can be no doubt of the defendant’s liability -for the repairs upon this vessel, upon the facts appearing in this case. The master of the ship has an incidental authority to hire seamen for the voyage, and to contract for necessary repairs and equipments for the voyage. (Story on Agency,§§ 1 16, 297; Abbott on Shipping, 101, 91 to 132; 1 Bell’s Com., 413 ; 11 Mass., 34; 15 Mass., 477 ; 1 Cow., 290; 7 John., 311; 16 John., 89; 1 Term R., 108; 2 Camp., 339; 4 B. & Ald., 352.) These sails, figging and repairs were placed upon this vessel in the port where the defendant resided, by the plaintiff, who was a sailmaker in that port, by the procurement of Mann the < master of the vessel, and were used upon the schooner in the sailing and navigating thereof in the ordinary manner. The defendant received the benefit .of these supplies, and must at all events upon these facts be deemed to have ratified the agency of Mann in procuring the repairs, if it should be held that he had not the authority as master for that purpose in the home port. But as I understand the master’s power "as agent for the owners in the home port, he may bind them for all reasonable contracts for fitting "out, victualing and repairing the ship, unless it be shown that the owners themselves or a ship’s husband managed the vessel, and that the party contracting with the master was aware of this. (Curtis’ Rights and Duties of Merchant Seamen, 172; 1 Bell’s Com., 413; Abbott on Shipping, 101; Rich v. Coe, Cowp., 636; Hussey v. Christie, 9 East, 432; Hoskins v. Slayton, Cas. Temp. Hardw., 360 ; 1 Bell’s Com., && 434, 435, pp. 507, 519, 520, 524; 11 Mass., 34; 2 Livermore on Agency, 267, 269.) In the case of Hussey v. Christie, Lord Ellenbobough in delivering the opinion of the court said: “ If the repairs be done here the owners are liable, though the. master may also become liable on his own contract, if he do not stipulate against his personal liability and confine the credit to the owners. If the necessary repairs be done abroad, the master may hypothecate the ship for them.” In the case of Hoskins v. Clayton (Cas. Tem p *240 Hardw., 377), which was the case of sails made for a ship at the home port and ordered by the captain, Lord Chief Justice Lee said: “ In general if the master orders the goods, both are liable, the master who gives the orders and upon whose credit the work is done, and 'the owners in respect of the work being done to their property. But yet,” he adds, “ though both are liable in such a case, if it appears that the. master in giving orders acted merely as their servant, he will not be liable.” The general doctrine seems to be fully recognized in the books, that where labor by way of repairs is performed upon a ship, or supplies furnished, the presumption is that it was done and furnished for the benefit and at the request of the owners. (James v. Bixby, 11 Mass., 40 ; Flanders v. Merritt, 3 Barb., 201.) In the' case of Cary v. White (1 Bro. Parl. Cas., 284), it was decided in the House of Lords that the owners of the ship were liable for money borrowed by the master, where it appeared that the money was wanted for the necessary use of the ship. The cases of Arthur v. Barton (6 Mees. & Wels., 138), and Johns v. Simons (2 Adol. & Ellis, N. S., 425), which are relied upon by the counsel for the defendant as authorities against the defendant’s liability in this case, are cases involving .the master’s implied authority to borrow money for the use of the ship in the home port when the owner is present; and these cases seem to deny the master’s authority to charge the owners by borrowing money in such .a case. Those cases are clearly distinguish-able from the present, for as the money was supplied to the captain he had the Opportunity to apply it to any use or purpose which he thought proper, which is veiy different from necessary repairs done to a ship. So the court held in Webster v. Seekamp (4 Barn. & Ald., 353, 355, opin. Best, J.). There was proof in the'case tending to show the repairs necessary., They were of a character generally used about a schooner, and it seems that they were actually used in and about the sailing and navigating the vessel, and the referee has found them necessary. Be this as it may, the defendant having *241 received the benefit of these repairs, the presumption is that they were made at his request. (Curtis’ Rights and Duties of Merchant Seamen, 173 ; Stokes v. Carne, 2 Camp., 339.) Or at least where it is proved that the vessel was in his possession," and that these sails were used in sailing and navigating the vessel by a master employed by him, the law will hold him liable as having ratified the authority of the master to contract for the repairs. The judgment of the court below should be affirmed. All the judges concurring, Judgment affirmed.