Kenzel v. Kirk

By the Court, Clerke, P. J. It will not be disputed, I presume, if the owner charters his vessel to the master for a certain period, he, covenanting to victual and man her at his own cost, is to be deemed the owner pro hap vice, (Hallett v. Col. Ins. Co., 8 John. 272;) and he, like any other charterer under similar circumstances, is alone responsible for supplies furnished for the intended voyage. But it is contended, on behalf of the plaintiff, where the transaction is not a positive chartering, but a letting of the vessel on shares!, although the master engaged with the owners to provide the supplies at his own cost, that the owners are still- liable, unless the person from whom they are purchased is aware of the arrangement. The distinction taken by the elementary writers seems to be very frequently, though not invariably, recognized. It is laid down by them that in the absence of any notice to the plaintiff that the vessel was let on shares, or of an 'opportu [121] nity by reasonable care and caution to ascertain the fact, the case would appear to be the ordinary one of the master of a vessel buying necessary supplies for the voyage. The charge of the judge was in conformity with this rule, which, I think, is tenable on principle and the weight of authority. Indeed the evidence would have authorized him to charge still more favorably for .the plaintiff. The master, , in his deposition, testifies that he ran the vessel on shares; that he was to receive one half the earnings, and to pay one half the disbursements. This seemed to have made it a joint concern. The owners, even as between them and the master, were to be liable for one half of the disbursements incurred, it is to be presumed, either 'for repairing, or .manning, or for furnishing supplies. To be sure, he says, in answer to the question, “ Who was to provision the vessel?” that he was. Yet as provisioning was certainly a part of the disbursements, and as he expressly says one half the disbursements were to bel defrayed by the owners, I cannot believe that he meant to say that he was to provision the vessel exclusively out of his share, at his own expense; but that it was to be done ’through his agency and personal attention. It also appears from his testimony that the owners dismissed the master at Key West, and that they took possession of the vessel, and of the stores purchased of the-plaintiff, which remained unconsumed. . . When, in addition to this, we consider that the credit was expressly given to the vessel; that there was nothing in the transaction to induce the plaintiff to suppose that there was any special arrangement between the owners and master; that he had ordered repairs which were paid for without objection by the owners, and that sevemeighths pf them in value- had ratified the master’s authority, by expressing their willingness to pay this demand, I think if the judge erred at all, it was in not telling the jury that there was no testimony in the case to exempt the owners from their general liability. With regard to the objection that the stores were pur [122] chased in Jersey City, instead of Newark, I am not aware that the .master is restricted in his purchases to the port where the vessel lies. He has a discretion to purchase in a neighboring port if it is more convenient for him to do so, and if he can deal there more advantageously for the owners. Of this he is the judge. [New York General Term, November 4, 1861. The other objections are equally untenable. The judgment should be affirmed, with costs. ■ Gierke, Sutherland and Mullin, Justices.]