302 extend beyond the value of the ship and freight by virtue of this statute (m). 6. Immediately after the decision of this case, [266] and in consequence of the danger, to which the facts, that were disclosed in it, shewed the owners to be exposed, another petition was presented to the House of Commons (n) on behalf of several owners of ships belonging to London and other parts, and in compliance therewith, another statute was passed (o), fixing the same limits to the responsibility of the owners in the several cases mentioned in the preceding statute, and also in the case of robbery," although the master or "mariners shall not be in any wise concerned in or privy "to such robbery, embezzlement, secreting, or making "away with." This statute also contains the same provisions as the preceding act, for equal distribution and discovery by bill in equity, and also for remedy against the master and mariners: and (as was mentioned in the preceding chapter) has entirely taken away the responsibility of the owners in the case of loss or damage by fire. 7. It may be observed that in those parts of each of these statutes, which treat of the damage and responsibility, the words "owner or owners of any ship or vessel” are used, and not the word part-owners, although the part-owner by name is enabled to file a bill in equity on behalf of himself and all the other part-owners. And therefore it may be questioned whether if any [267] one part-owner should be privy to an act of mal-practice, and so clearly be excluded from (m) Sutton v. Mitchell, 1 Ter. Rep. K. B. p. 18. (n) See Commons Journals for the year 1786, page 296. This act also was passed without a division the benefits of the statute, the other part-owners would be excluded also. But as the master is very often a part-owner, and the first statute was evidently framed to ease the owners from a part of their responsibility for his misconduct, it should seem that by his privity, they would not lose the benefit of that statute; and as both statutes are made in pari materia, and expressed in the same terms, probably by the true construction of both, one part-owner cannot prejudice the others by his own individual misconduct. CHAPTER THE SIXTH. OF THE GENERAL DUTIES OF THE MERCHANT: 1.THE general duties of the merchant (those only excepted, which relate to the payment of freight and of gross average, and which will form the subject of distinct chapters) are comprised in a very narrow compass the hirer of any thing must use it in a lawful manner, and according to the purpose, for which it is let. The merchant must lade no prohibited or uncus tomed goods, by which the ship may be subject[268]ed to detention or forfeiture (a). (1) In gen eral, even in the case of affreightment by charter-party, the command of the ship is reserved to the owners or the master appointed by them, and therefore (a) Roccus not. 85. Dig. 19. 2. tit. 3. fret. art. 9. 61. 1. French Ordinance, liv. 3. (1) Therefore where goods were clandestinely shipped on board an American ship, bound from New-York to Scotland, which goods were prohibited by the laws of Great Britain from being imported into that country, and in consequence thereof, the ship was seized and the master was compelled to pay a large sum of money for her release, the Court held the action maintainable, although it was contended on behalf of the defendant, that no country takes cognizance of the municipal laws of another country, and that the lading of such goods here was lawful, and therefore the act was not tortious, but damnum absque injuria. Smith v. Elder, 3 John. Rep. 105. the merchant has not the power or oportunity of detaining the ship beyond the stipulated time, or employ. ing it in any other than the stipulated service. But by the charter-parties under which ships are let to freight to the East-India Company, the command and disposal of the ship are reserved to the company, and the master, although appointed by the owners, is bound to obey the orders of the company at home, and of their factors and servants abroad; and it is always stipulated that nothing shall be paid by the company for freight or demurrage, unless the ship returns home in safety (b). Yet in a case where the company detained a ship so long in India, that she became unfit for the voyage home, and was disposed of there, so that by reason of the particular stipulation the owners could sustain no action at law upon the contract, a Court of Equity ordered the company to make a proper allowance for the actual and probable earnings and the value of the ship (c). So where a ship, hired by the company to be employed according to the then usual terms of their charter-parties in trade and warfare, was sent upon a service of observation and discovery to explore the passage to the eastward of the Isle of Banca, and there struck on a rock, and was lost, [269] and the owners brought an action against the company for thus exposing the ship to danger in a service not warranted by the charter-party without their knowledge or consent, Lord Kenyon, before whom the cause was tried, declared himself to be of opinion that the action was proper in point of general principle, but the plaintiffs failed in their suit, because it appeared (b) See the clauses cited in Hotham v. East-India Company, ante, chap. 1. of this part, sect. 14. (c) Edwin & others v. East-India Company, 2 Vern. 210. that the company's intention to employ the ship in this service was before her departure from England made known to the person, who managed the ship on behalf of the owners, and not objected to on their part (d). 2. Some of the ancient maritime codes and more modern foreign ordinances (e) have fixed the payment to be made by the merchant, who, having taken a ship to freight declines to lade her in pursuance of his agreement, or who, before the commencement, or during the course of the voyage withdraws his goods from the ship, or having hired a ship to go to a distant port and [270] engaged to furnish a cargo homeward, fails to do so, whereby the ship is forced to return empty; and have decided that in some instances the whole, in others a moiety of the sum, that would have become due as freight, shall be paid as a compensation to the owners. But in all these cases the law of England leaves the amount of the compensation to be ascer· tained by a jury, if the parties cannot agree about it: and a jury will form their estimate upon a consideration of all the circumstances of the case, and of the real inju ry sustained by the owners, which cannot be properly settled by positive rules. 3. We have seen by a copy of the bill of lading (ƒ), that the master undertakes to deliver the goods upon (d) Lewin & others v. East-India Company, Peake's Cases at Nisi Prius, p. 241. It was an action upon the case, and the plaintiffs were nonsuited; they afterwards brought another action in the Court of Common Pleas, which was tried before Lord Eldon at the Sittings after Hil. Ter. 1800, and were again nonsuited on the same ground. The terms of the charter-parties are now altered, and the ships are hired to be employed in trade and in warfare, and on any other service whatsoever. (e) Ordin. of the Hanse-Towns, art. 11. French Ordinance, liv. 3. tit. 3. fret. art. 5 & 6 and 8 & 9. and Valin thereon. Guidon,chap.9. art. 11. (f) Ch. 2. of this part, sect. 3. |