Latham v. Lawrence

Huntington, J. It is not denied, that prim,a facie, the owners are liable for necessary supplies furnished the ship. It is contended, however, by the defendants, that where ^lc vessel is under a charter to the master, who has hired and employs her on his own account, having the entire controul of her, during the continuance of the charter, he is, pro hac vice, the owner ; and while the vessel is so employed and subject to his controul, the general owners are not responsible : and that the rule is the same, although the sum to be paid for the use of the vessel, depends upon the amount of her earnings while so employed. The principal cases in which these points have been raised and discussed, have been examined and commented on, by the counsel for the defendants, with much ability and ingenuity. We have not found it necessary to review the opinions supposed to be expressed in these cases, because we think the facts in the present case are such as to preclude the application of any one of them, on which the defendants rely. The only evidence conducing to prove a hiring by the master, is contained in the document recited in the motion ; and we concur in the opinion expressed by the judge who tried the cause, that it is wholly inoperative to defeat a recovery by the plaintiffs. That paper is not a charter-party, either in form or substance. It contains no stipulation or agreement for the hire of the vessel. It does not divest the owners of the controul of her. It gives none to the master, except in his capacity of master, and as the agent of the defendants. There are no mutual stipulations : there is no contract of hiring and letting. It is a mere letter of instructions front the owners to the master. It is addressed to him in that character. “ You are now master of the schooner Flora,” is the introductory sentence. This is the language of the principal to the subordinate. It then directs him where to proceed with the vessel, and how to employ her. He is to use his best exertions to obtain freight, for the benefit of all concerned. He is authorized to represent her as a first-rate vessel, copper-fastened throughout, two years old, and in good order. He is enjoined to use all suitable care to keep her in proper condition ; to be cautious in the selection of the commission merchants he may employ ; to obtain offers to purchase her, and communicate them to the defendants ; to remit her earnings to them ; and for his services, as master, and for victualing, manning, [303] and paying one half the port charges, he is to receive one half of all freights, primage, or earnings of the vessel; the half to belong to the owners, deducting the wages of one seaman. This instrument is, certainly, a most extraordinary and unusual charter-party. The owners, by reason of it, have not parted with the possession and management of the vessel for any period of time. They have appointed Appleman master ; have directed him what to do with her ; and given him such other instructions as they deemed important; have retained the possession, command and navigation of her ; and specified the manner in which he shall be paid for his services. There is not one prominent feature of a charter-party in the instrument. It is not a contract of affreightment; and the reasonable rule, founded on just*principles of commercial policy, which subjects the general owners for necessaries furnished for the ship, is applicable. The motion for a new trial is, therefore, denied. In this opinion the other Judges concurred. New trial not to be granted.