his duty to collect the freight-money for the benefit of the charterers; and if he neglect to do so his owners are liable, unless the charterers directed some other person to collect it.1 So the owners are liable for the negligent act of the master in overloading a wharf, whereby goods were injured, although there had been a constructive delivery of the goods.2 And if a master, by want of skill or care, brings his ship while navigating her into collision with another and inflicts injuries thereby, the owner is certainly liable.3 But it has been held that the owners are not liable for a wilful collision. So if the master embezzles goods put on board, the owner is liable.5 But he is not liable if the master embezzles or injures goods which he took on board to fill his own privilege,

1 Welch v. McClintock, 10 Gray, 215.

* Kennedy v. Dodge, U. S. D. C. New York, Shipman, J. 1867.

• The Thames, 5 Rob. Adm. 345; Stone v. Ketland, 1 Wash. C. C. 142; Martino v. Boggs, 1 La. Ann. 74. See also chapter on Collision, Vol. I.

is

• The Druid, 1 W. Rob. 391; Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480, 2 Const. 479. See The Ida, Lush. Adm. 6; The Seine, Swabey, Adm. 411. A contrary decision was, however, given in Ralston v. The State Rights, Crabbe, 22, 44, on the authority of the distinction pointed out by Mr. Justice Washington in the case of Dias v. Privateer Revenge, cited in a subsequent note. Judge Hopkinson said: "In the case now before this court, I do not understand it to be denied, that the owners of a vessel are answerable for the acts of their captain done within the course and scope of his employment and business. Is this not enough for this case? Assuredly it was within the course and scope of the employment and authority of Captain Allen to direct the State Rights to be steered at his pleasure; he had full power to do this, derived from his owners, and all on board were to obey his orders, without interposing their judgment as to the consequences to him or his owners. If by the execution of such an order a wrong done to another party, on what principle of the common or maritime law can the owners of the offending vessel, the principals of such an agent, whom they have armed with the power to do the wrong, throw the responsibility from themselves? It is widely different from the case of the commission of a crime by the captain, which cannot be imputed to his owners, or be intended to come within the employment or authority committed to him." In Duggins v. Watson, 15 Ark. 118, a party who owned goods on board one vessel, brought an action against the owners of a colliding vessel, and the court ruled that he was entitled to recover, although the collision was wilfully caused by the master of the colliding boat. This case was decided on the authority of Philadelphia R. v. Derby, 14 How. 468, cited post, p. 30, n. 2; but it does not fall within the exception upon which that case rested, and was wrongly decided, unless the principles contended for by Hopkinson, J., in the above case, be correct.

'Boucher v. Lawson, Cases temp. Hardw. 78, 193.

and received all the freight, commissions, and profits on them.1 Nor is he responsible for goods clandestinely taken on board by the master, when the owner is himself on board, managing the lading of the vessel, or appointing an agent expressly therefor, and employing the master only in navigating the ship, and the shipper either did know this, or has sufficient notice to put him on his guard.2 The owners of a privateer are responsible for the torts of the officers and crew committed in the exercise of their employment, but they are not liable for piratical acts committed by such

1 King v. Lenox, 19 Johns. 235; Boucher v. Lawson, Cases temp. Hardw. London ed. 85, 194, Dublin ed. 78, 183. But in Phile v. The Anna, 1 Dall. 197, an owner of a vessel was held liable for the tort of the master in smuggling goods which were part of the master's privilege, and did not belong to the general cargo of the ship.

Walter v. Brewer, 11 Mass. 99; Reynolds v. Toppan, 15 Mass. 370; Ward v. Green, 6 Cow. 173. In Walter v. Brewer, the owner was with his vessel at Monte Video, for the purpose of taking a cargo for himself, and not intending to take freight for others. The master, without the knowledge of the owner, took on board a few bales of Nutria skins, to carry to Boston. It was in evidence that the bales would not more than fill the "privilege," which the masters of vessels, in a case like that, were accustomed to have. The judge, at Nisi Prius, instructed the jury, "That, although the owners of ships were generally liable for the contracts of their masters abroad touching the ship on the voyage; yet, as the owner, in this instance, had himself gone in the ship, for the purpose of procuring a cargo, and as the ship was not put up for freight, and as the defendant was not consulted respecting this shipment, nor the persons who attended to his business in his absence, but they were taken on board without his knowledge, he was not accountable originally for the safe transportation and delivery of the goods; but that, if the jury believed that the defendant knew, before his ship sailed from Monte Video, that these bales had been taken on board by the master, he must be considered as having adopted the act of the master, and as having consented thereto, and so would be accountable." These instructions were held to be correct, with the exception that it was not sufficient to charge the owner that he knew that the goods were taken on board, but that he must have "knowledge that the goods were received on board upon freight." In Nichols v. De Wolf, 1 R. I. 277, it was held that where an owner sent a vessel on his own account, the master as such had no authority to sign bills of lading." But in Murfree v. Redding, 1 Hayw. 276, the owner denied his liability for the breach of a contract of affreightment entered into by the master, on the ground that the latter was put on board merely to navigate the vessel. But the court were of opinion that as he was held out as master, the contract being within the scope of his authority, the owner was liable.

The San Juan Baptista, 5 Rob. Adm. 33; The Karasan, id. 291; Die Fire Damer, id. 357; Nostra Signora de los Dolores, 1 Dods. 290; L'Invincible, 1 Wheat. 238; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 1 Paine,

officers and crew. All of these cases, and very many more of a like kind, resolve themselves into this rule; that the owner is responsible for the direct consequences of any wrong-doing of the master, which is done by him as master, in the discharge of his duty, and under the authority given him as master. And here, as in most cases under the law of shipping, the established usage of the port, or of the trade in which the vessel is employed, is of great importance. The question how far the owners of a vessel are liable for the wilful and malicious act of the master, is one of

C. C. 111, 3 Wheat. 546; Talbot v. The Commanders of Three Brigs, 1 Dall. 95; Del Col v. Arnold, 3 Dall. 333; Arnold v. Del Col, Bee, Adm. 5; Gibbs v. The Two Friends, Bee, Adm. 416. In The Amiable Nancy, supra, a doubt was expressed whether the liability extended to personal trespasses committed by the master and crew against persons on board the prize. Some of the cases above cited would seem, however, to extend the liability of the owners to a greater extent than more modern cases would justify.

Dias v. The Privateer Revenge, 3 Wash. C. C. 262, 268. This case might seem to countenance a distinction which has been sometimes taken between mere torts and offences for which the master is criminally responsible. See Ralston v. The State Rights, Crabbe, 22.

But the writers on maritime law do not appear to make any distinction in this respect between acts which are criminally punishable, and such as are not, nor is it apparent how they could do so, save in the case of offences against the law of nations; and Dr. Lushington, in the case of The Druid, 1 W. Rob. 391, intimated that he believed none to exist. In Manro v. Almeida, 10 Wheat. 473, it was argued that, as the trespass complained of was alleged to have been piratically done, the civil remedy merged in the crime. The court said: "But this we think, clearly, cannot be maintained. Whatever may have been the barbarous doctrines of antiquity about converting goods piratically taken into droits of the admiralty, the day has long gone by since it gave way to a more rational rule, and the party dispossessed was sustained in his remedy to reclaim the property as not devested by piratical capture."

Dias v. The Privateer Revenge, 3 Wash. C. C. 262, 268. The decision of the learned judge in this case goes very thoroughly over the whole question, and draws the distinction between a wilful act done while the servant is engaged in the prosecution of his master's business, as when the master of a vessel commits spoliation on property rightfully seized as a prize, in which case the owners of the vessel would be liable, and an act wholly out of the scope of his employment, as a piratical seizure. The distinction here pointed out was acted upon in the case of Ralston v. The State Rights, Crabbe, 22, which case we have referred to more at length, ante, p. 27, n. 4, but what we consider to be the true doctrine of the common law is stated by Mr. Justice Cowen, in Wright v. Wilcox, 19 Wend. 343, 345, to be that the law holds every wilful act to be a departure from the master's business.

great difficulty, especially when such act is done by the master while employed in the usual course of his business. It is said in one case that the liability of the owners depends on the general principles of the maritime law, and not on any special contract.1 But their liability may undoubtedly be increased by a special contract, and the distinction has been taken in some recent cases between the act of the master towards one to whom the owner owes no more duty than one citizen owes to another, and his act when this duty is increased by reason of a special contract or an obligation imposed upon him by virtue of his office as carrier. In such a case it would seem that the owner is liable even for the wilful tort of his servant, if it was committed while in his employ and in the management of the conveyance under his control, although the wrong was done in direct opposition to the express commands of the owner.2 And if the owners are obliged to pay damages for the wrong-doing of the master, they have their remedy over against him. And the master is liable if he violates any of the material

1 Dean v. Angus, Bee, 369, 375.

This was so held in Weed v. Panama Railroad Co. 5 Duer, 193, 17 N. Y. 362, where a conductor on a railroad stopped and detained the train in a swamp during the night, and the company was held liable for the injuries sustained by a passenger in consequence thereof. In a late case in the Supreme Court of the United States, Philadelphia R. v. Derby, 14 How. 468, the defendant in error was riding in a train, on the railroad of the plaintiffs, which came into collision with another train belonging to the same company, whereby he was injured. The accident was caused solely by the engineer of the colliding train running his engine on a track over which he had received express orders not to go. It was held that the company was liable. The court said: "We find no case which asserts the doctrine that a master is not liable for the acts of a servant in his employment, when the particular act causing the injury was done in disregard of the general orders or special command of the master. Such a qualification of the maxim of respondeat superior, would, in a measure, nullify it." In Keene v. Lizardi, 5 La. 431, the owners of a vessel were held liable for the misbehavior of the master to passengers. See also St. Amand v. Lizardi, 4 La. 243; Block v. Bannerman, 10 La. Ann. 1.

In Malpica v. McKown, 1 La. 248, it was held that the owner was liable for money of a deceased passenger converted by the captain to his own use. And in Arayo v. Currel, 1 La. 528, where the master, the ship having run aground, told the passengers to go on shore, in order that the ship might be lightened, and after the ship was got off he sailed away without them, it was held that the owner was liable. See Sunday v. Gordon, Blatchf. & H. Adm. 569.

Dean v. Angus, Bee, Adm. 369; Purviance v. Angus, 1 Dall. 180.

orders and instructions under which he sailed.1 If the master of a vessel wrongfully detains the clothing of a seaman, the owners are not liable therefor, unless they have ratified the acts of the master, or upon demand have refused to deliver it.2

1 Brown v. Smith, 12 Cush. 366. In this case it was held that the master was liable for the reasonable expense of bringing the vessel home from the port to which he had wrongfully navigated her, and for reasonable damages for breaking up the voyage, but not for the conjectural or possible profits of the voyage; and that the collection from him of a part of the proceeds of a wrongful sale of some of the property on board was no bar to an action against him for breaking up the voyage and disposing of the property, but went merely in reduction of damages. The Hibernia, 1 Sprague, 78.