Opinion
January Term, 1864
John Sherwood, for the appellants.
J. Edgar, for the respondents.
The master of a vessel is for most purposes the agent of the owners of the ship and cargo; but that agency does not extend to a sale of either, unless there is a necessity, at the time, for so doing. (Abbott on Shipping, 365 et seq. in notes.)
The degree of the necessity which must be shown to have existed in order to justify a sale of ship or cargo has been differently stated by different judges and writers on maritime law. In 1st Parsons on Cont. 66, it is said: "He (the master) may sell the property entrusted to him in a case of extreme necessity, and in the exercise of a sound discretion. Nor need this necessity be actual in order to justify the master and make the sale valid. If the ship was in peril which, as estimated from all the facts within his means of knowledge, was imminent, and made it the most prudent course to sell the ship as she was, without further endeavors to get her out of her dangerous position, this is enough, and the sale is justified and valid although the purchasers succeed in saving her, and events prove that this might have been done by the master."
In 2d Smith's Leading Cases, 576, the author of the notes says, "In order to make out a case for a sale without express authority, it would appear necessary to show that the property at risk has been placed in a position of such imminent danger that it may be destroyed or materially injured, before recourse can be had to those to whom it belongs; unless the intervention of other means is resorted to than those which can be commanded by the master."
Chancellor KENT, in his Commentaries (vol. 3, 173, 4), says, "But if the voyage be broken up by ungovernable circumstances, the master in that case may even sell the ship and cargo, provided it be done in good faith for the good of all concerned, and in a case of supreme necessity which sweeps all ordinary rules before it."
Lord ELLENBOROUGH, in Campbell v. Thompson (2 E.C.L. 480), says, "The master can only sell the cargo in case of urgent necessity."
ABBOTT, Chief Justice, in Trumen v. East India Co. (7 E.C.L. 339), says there must be an apparent necessity. In the same case, BAYLEY, Justice, says, "It must be a case of absolute necessity." PARK, J., in Skeen v. McGregor (8 E.C.L. 309), says, "A sale can only be made in a case of inevitable necessity."
In Massachusetts, the court says, "there must be a necessity, or, as it is sometimes expressed, a legal necessity, before the master can sell." ( Bryant v. Commonwealth Ins. Co., 13 Pick, 543, 551.)
The difficulty lies not so much in finding the rule as in applying it in a given case.
There is no doubt but that, in order to justify the sale of a cargo at an intermediate port, several things must concur.
1. There must be a necessity for it, arising either from the nature or condition of the property, or from the inability to complete the voyage by the same ship or to procure another.
2. The captain must have acted in good faith.
3. He must, if practicable, consult with the owner before selling. (Abbott on Shipping, 447 and notes; The New Eng. Ins. Co. v. Brig Sarah, 13 Peters, 387; Bryant v. Commonwealth Ins. Co., 13 Pick. 543.)
No question as to the good faith of the captain, or of his inability, under the circumstances, to consult with the owners, is raised. But it is insisted that a necessity for the sale is not proved, for two reasons: 1st. Because the property, although injured, could by a moderate outlay have been put in order so as to be carried to New York without further material injury; and 2d. The master should have sent forward the property by another vessel.
Neither the master nor owners were answerable for the delay which had occurred after leaving Aspinwall. It was caused by a visitation of Providence, against which human foresight could not guard.
The damage to the hides arose from their own inherent properties and the heat of the climate in which the voyage was made. Before unloading the hides at Carthagena, the worms that caused the damage were discovered on the deck of the vessel — when the hides were taken from the hold and put on the deck — the hair was found eaten off and holes eaten in them; and, if permitted to remain in the vessel, it is not denied but that they would have been utterly ruined. The captain caused them to be beaten while on the deck, which it is shown is one means of removing, in whole or in part, the vermin that was causing the injury. The vessel was found not to be in a condition to continue the voyage, and another ship might have been procured to carry the hides to New York, as the purchasers of them at the master's sale chartered a vessel which brought them to New York.
If the hides were then in a condition which justified a sale in order to prevent total loss, it would seem to follow that it would have been folly to have hired another vessel to bring to New York property that would be ruined before it arrived.
The question then comes to this: Was the master justified in selling the property at Carthagena? or, in other words, was the condition of the property such that it was necessary to sell it in order to prevent a total loss? It does not appear that the captain had any acquaintance with the means of preventing injury to hides by vermin, other than is possessed by every person in the community. He was called on to deal with the property as it then was, without any peculiar skill as to the best mode of protection or cure. It was quite obvious the property must be removed from the hold, and the master did it. Beating the hides was a mode in which the worms could be removed for the time being, and that was done. There is no evidence that the master knew that washing in sea water would be any greater protection than the means he had already employed. Under these circumstances, he summoned three respectable men, dealers in hides and the shipment thereof from Aspinwall to Carthagena and from the latter place to New York, to examine the hides and declare what it was proper for him to do under the circumstances. They advised a sale, and the hides were sold, and, as witnesses, they swear that the advice was given in good faith. This advice was not conclusive; but the question is whether, on view of the facts then known to the parties, it was apparently necessary to sell the hides. The remarks of PARKER, Ch. J., in Gordon v. Massachusetts Fire and Marine Insurance Co. (2 Pick. 263), in regard to the weight which should be given to a survey of a vessel made after injury, in order to determine what it is the duty of the master to do with her, apply with great force to the point under consideration. He says, when a vessel has been so far injured by a peril of the sea as to make a survey necessary, and the master, with perfect good faith, calls such a survey, and the persons appointed to take it are competent in point of skill and wholly disinterested, and they, after a full and sufficient examination of the vessel, find her essentially injured, and come to a fair conclusion that, from the high price of materials and of labor, or the difficulty of procuring them, the expense of repairing will be more than the worth of the vessel after she is repaired, and therefore they advise, for the interest of all concerned, that the vessel be sold, — in such a state of things as this, it seems to me that a moral necessity is imposed on the captain "to act according to their advice." The jury, in passing on the question of necessity, must take into consideration the opinion of these persons thus called on to aid the master by their advice, and that opinion is entitled to very considerable weight. "If," say the court in the opinion just cited, "they acted fairly and the captain acted fairly, his acts, in conformity with their opinions, will be justified unless it shall be made to appear by those who contest the loss that the facts on which they founded their opinion were untrue, or the inferences they drew from those facts were incorrect; and the burden of proof should be on those who would impeach their proceedings."
But it is said that the persons who gave the opinion that the cargo ought to be sold, assumed, as part of the ground-work of their opinion, that the hides were to remain on the Pedee and be carried to New York in her, instead of being sent forward by another vessel, as it was the master's duty to do.
The survey, as it is called, does say that the vessel, having to be repaired in Carthagena, and then go to St. Jago de Cuba, before the hides could reach New York, it was almost certain that not a single hide would arrive at that place. But in the evidence of these witnesses they go much further than this survey, or rather it is stated as their opinion that the property was in such a condition that it ought not to have been re-shipped. Horner testifies that it was his opinion that the hides ought to be sold. Hanabergh says the sale was proper and necessary, owing to the condition of the hides; Foster that a large portion of the hides were only fit for glue — they would become worse daily until totally destroyed. Before examining the hides he thought the best course would be to re-ship them; but, on examination, he was of opinion that the master's only and best course was to sell them. Sanchez, one of the surveyors, testifies that the re-shipment involved the actual loss of the hides. Barros says the hides were too much damaged to be kept any longer without danger of a total loss.
Other witnesses qualify their opinions by saying that the hides would be a total loss if re-shipped on the Pedee, to be by her carried to New York.
I have referred to the opinions of the witnesses to show that there was a question for the jury on the facts, as to the necessity of the sale, and that it was wholly improper, in view of this evidence, to render a verdict for the plaintiff. If the jury should believe, from the evidence of the witnesses, that, judging from the condition of the hides as they were when found on the wharf at Carthagena, that if re-shipped by any vessel, and sent to New York within a reasonable time, they would be so damaged as to be practically valueless as hides, the defendants would be entitled to a verdict.
Although it has happened that the hides did arrive in New York, and were sold for a much larger price than that received in Carthagena, and although it is competent to prove those facts, and for the jury to consider them in determining the question of necessity, yet the question, after all, must be determined upon the facts existing at the time when the sale was made.
In every aspect in which I have examined the case, a case is presented which made it necessary to submit it to the jury; and because it was not done, the judgment of the supreme court must be reversed and a new trial ordered, costs to abide event.
All the other judges coucurring, except WRIGHT, J., who did not vote, judgment reversed.