Emery v. Hersey

[411] The opinion of the court iras delivered at the succeeding Jtíay term in Cumberland, by Weston J. It appears in the case before us that the defendant’s sloop was employed in carrying wood and lumber, on freight, from Saco river ; and that the plaintiff shipped on hoard said sloop, on freight, a certain quantity of lumber to be sold by the master, and the net proceeds paid over to the plaintiff. Owners of vessels employed in the transportation of property, are common carriers ; and liable to the responsibilities, which by law attach to persons engaging in that business. They are made answerable for the safe carriage and delivery of all goods, entrusted to them, their servants, or agents ; unless a loss be occasioned by the act of God, or a public enemy. One of the objections taken in defence is, that if a liability ever attached to the defendant, it terminated upon the delivery of the lumber in JSmbmyport, and that the subsequent sale and disposition of it there, constituted no part of the duty of the owner or carrier ; that he derived no benefit from it ; and that in this part of the business, the master was made the special agent of the plaintiff, and that he ought to look to him alone. It is in testimony in this case, (hat the usage at Saco is, when lumber is shipped on freight, for the master to sell it, and bring home the money, and pay it over to the shipper; unless otherwise directed. The freight or compensation, therefore, paid by the shipper, is a remuneration, not only for the carriage of the lumber, but for all the care and labor bestowed upon it by the master, until his trust is fulfilled. In the whole business, the master acts within the scope of his employment; and we entertain no doubt that, the owner is liable for the faithful performance of every duty, undertaken by the master in regard to the property, according to the usage proved. The case of Kemp v. Conghtry, cited from 11 Johns. 107, is an authority directly in point. But it is principally insisted that the master, in this case, lias owner, pro hac vice, and therefore the general owner not Hable. If this fact had been established, the position is well founded [412] To constitute the hirer owner, pro hac vice, he should have the possession, and the entire control and direction of the vessel ; so that the general owner, for the time being, would have no right to interfere with her management. 2 Barn. & Ald. 503. Reynolds v. Toppan 15 Mass. 310. Taggard v. Loring 16 Mass. 336, cited in the argument. In this case, he was to victual and man the vessel, and to have one half the freight money, and five dollars on each trip, for his compensation ; but it is no where testified that he was to have the control of the vessel. On the contrary it appears, that the defendant claimed to interfere and did interfere, in her management as owner. The master testified that for some prior trips, he had contracted for the freights ; but under the special direction of the defendant, who employed him for this purpose ; because he said he could make the best bargain. He further testified, that sometimes he settled with the freighters, and sometimes the defendant. It is proved by Joseph Granger, that he made the agreement with the defendant, to freight the vessel with wood, for the very trip when the plaintiff’s lumber was carried, which was received on board in consequence of the failure of Granger to furnish a full load. It also appears, that the defendant demanded, as his own, and actually received, the freight earned by the vessel for this trip; including that which arose from carrying the plaintiff’s lumber. The conduct of the defendant clearly negatives the assumption that the master had the control of the vessel ; or that he stood in the relation of owner, pro hac vice. His right to a portion of the freight, was only the stipulated mode of compensation. The case of Thompson v. Snow, [ante p. 264,] cited for the defendant, varied essentially from the one before us. It appeared there that the master had the entire management of the vessel, without the interference of the owners, for several successive voyages; and until she was stranded and sold. The opinion of the court is, that the general error is well assigned ; that the judgment be reversed ; and that a new trial be had at the bar of this court.