Babcock v. Terry

Hoar, J. 1. A contract by the owners of a vessel to indemnify the master for assaults and batteries committed on the crew under the name of “ chastisement ” would be an illegal contract, not to be enforced by a court of justice. But a contract to compensate him for legal expenses which he might incur in groundless suits and prosecutions against him, for “ chastisement of the crew ” within proper limits, and in the lawful maintenance of the discipline of the ship, is a lawful and just contract, and may be enforced. As no presumption can exist that the defendants intended to make a contract contrary to law and public policy, the agreement with the plaintiff must be construed as extending only to matters of the latter description. The items for defending the Williams case, and settling the Peterson case, in neither of which he was found guilty of any crime, seem to us upon the evidence to have been reasonably and fairly incurred under the defendants’ promise to indemnify him, and should be allowed to him in account. The fine, costs, and charges, criminal and civil, which grew out of the assault upon the cook, George Blank, of which he was convicted, were the consequences of the plaintiff’s own misconduct, and he has no claim to compensation for them. 2. We are unable to find in the evidence any sufficient reason for the sale of the oil by the plaintiff, or its shipment to a foreign market for the purpose of sale, and drawing against the shipment, except to the extent required for the ship’s disbursements. The master of a ship has no such general authority by virtue of [488] his employment; nor has a part owner where he is not intrusted with the direction of the voyage. Nor is there anything in the nature of a whaling voyage to create in the master such an unlimited authority. His duty is to get his oil and to bring or ship it home. His right to sell the oil, or to ship it to another market, in the absence of instructions from the owners, express or implied, can only be derived from a controlling necessity. Underwood v. Robertson, 4 Camp. 138. The Packet, 3 Mason, 255. Peters v. Ballistier, 3 Pick. 495. The authorities on this point are abundant and uniform. But there are two decisive objections to the sale or shipment by the plaintiff in this ease, which was without any authority from the owners: 1. That there was no imperative necessity for his act; and 2. That we are not satisfied that he acted with reference to a supposed necessity for the purpose of saving the oil, but that he proceeded as he did chiefly with a view to raise money. There might be a case where the danger of capture was so imminent and great, that the master would be justified, as the agent of the owners from necessity, in selling his cargo or the proceeds of his voyage, or shipping them in some other manner than in his own vessel to the home port, as the only practicable means of saving them. But whatever danger existed affected as much the rest of the oil, as the part which he shipped to England. And the evidence has brought us to the conclusion that the quantity which he thus shipped was determined by the sum which he wished to draw for, to appropriate to his own uses. His only justification, therefore, for the shipment of more than was needed to furnish money for the necessary disbursements of the ship, is to be found in his right to have his portion of the oil set off to him under the contract; and he has no reason to complain that it has been charged to him in account as if he had received it on a final division at the settlement of the voyage. The amount of oil necessary to raise money for his disbursements, which the defendants do not deny that he might rightfully dispose of, as it was for payments to be made in a foreign port, where the currency was measured by a gold standard, he is [489] entitled to have charged to him at the price which it produced in gold ; and to be credited with the disbursements by the same standard. Bush v. Baldrey, 11 Allen, 367. Hussey v. Farlow, 9 Allen, 263. A decree is to be entered for the plaintiff for the balance due him upon the account computed upon these principles, with costs.