Bingham v. Monroe

DeCourcy, J. The plaintiff was a seaman (U. S. Rev. Sts. § 4612), and had a three-fold remedy for the recovery of his wages. In the admiralty he could proceed against the master, the owner, or the ship; and at common law against either the owner or the shipmaster. Temple v. Turner, 123 Mass. 125. Calvin v. Huntley, 178 Mass. 29. It is true, as contended by the owner, Porter, that if the ship-master Monroe had chartered the vessel he became the owner pro hoc vice and had no authority as agent to bind the general owner for wages. Thompson v. Hamilton, 12 Pick. 425. Baker v. Huckins, 5 Gray, 596. Rich v. Jordan, 164 Mass. 127. As the jury presumably were so instructed, the fact that they found against the owner indicates that they did not credit the testimony of Monroe that he had chartered the vessel. Admittedly there was no charter-party, the terms of the alleged paroi agreement were not offered in evidence, and the owner Porter was not a witness. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314. The plaintiff, however, cannot maintain his action against both the owner and the master. The owner’s liability is based upon the implied authority which the master has to contract on behalf of the owner. If the plaintiff sees fit to treat the master as the princi [458] pal, the remedy is against him alone. The third request should have been qualified accordingly. Priestly v. Fernie, 3 H. & C. 977. Fitzsimmons v. Baxter, 3 Daly, (N. Y.) 81. The first ruling requested by the plaintiff was properly given. According to his testimony he was hired to go to the coast of Maine on a lobster fishing trip. Instead the master headed the schooner south, touched at Newport News and Old Point Comfort, and after reaching Cape Hatteras returned to Boston. Such a deviation from the voyage put an end to the express contract for wages and entitled the plaintiff to recover on a quantum meruit. Coffin v. Newburyport Marine Ins. Co. 9 Mass. 436, 448. The plaintiff makes no contention with reference to wages under the statutes of the United States based on the absence of shipping articles, nor is any question raised as to the amount due if the plaintiff is entitled to a verdict. The second ruling requested was correct. The master Monroe testified that his purpose was to go to Mexico for Chinamen whom he intended to bring into the United States illegally. But it appeared from the testimony of all the witnesses that the plaintiff did not know of the illegal character of the voyage until after his return to Boston and that he was innocent of any participation in the wrong. Sheppard v. Taylor, 5 Pet. 675. The Mary Ann, 16 Fed. Cas. 9194. The City of Mexico, 28 Fed. Rep. 207. No error is suggested in the fourth request, and we discover none. Nor do the defendants show that they were aggrieved by the failure to instruct the jury in accordance with the requests made orally after the charge. It is not clear how the plaintiff’s opportunities to leave the vessel bear upon the second request; and in view of the plaintiff’s testimony that he was without money and that his clothing was in a ragged condition, if the defendants desired any particular instruction on the first request based upon the plaintiff’s failure to leave the vessel, they should have so requested in writing before the closing arguments, in compliance with the rule of court. The judge’s charge is not printed in the record, but as no exceptions were taken thereto, presumably suitable instructions were given to the jury upon every issue. As already stated, the plaintiff’s third request should have been modified and the jury instructed that recovery could be had against the owner or the master, but not against both. As there was evi [459] dence, however, warranting a verdict against either of them, and the defendants did not ask the judge to rule that both could not be held liable, the plaintiff should not be compelled to re-try his case. Accordingly if, within twenty days, the plaintiff shall be granted leave by the Superior Court, and shall discontinue against one of the defendants the entry is to be made. Exceptions overruled; otherwise the exceptions must be sustained. So ordered.