Sec. 789. ($ 434.) Same subject-The rule stated. The stated.—The law upon the subject of sales by carriers in cases of necessity is thus stated by Cockburn, C. J., in Notara v. Henderson :26 "The law applicable to such a case appears to us to be free from any serious difficulty. In every contract to carry for freight there is an implied obligation on the part of the ship-owner that, in the event of any disaster happening to the ship or cargo in a port where correspondence cannot be had with the freighter, the master shall act as his agent and use his best efforts for the protection and preservation of the cargo. He must, in such an emergency, put himself in the place of the owner of the cargo and do what the latter, as a prudent man, would himself do for his own interest if he were present. 'If the cargo,' says Lord Stowell, in the case of The Gratitudine,27 'is a perishable cargo, and the vessel is unable to proceed or stands in need of repairs to enable her to proceed in time, the master must exercise his judgment whether it would be better to transship the cargo, if he has the means, or to sell it. He is not absolutely bound to transship; he may not have the means of transshipment. But even if he has, he may act for the best in deciding to sell. If he had not the means of transshipping, he is under an obligation to sell, unless it can be said that he is under an obligation to let it perish.'

Sec. 790. (§ 435.) Same subject-What purchaser must show. In order to justify the act of the carrier in making a sale of the goods, and to establish his title to them, the purchaser must show that there was a necessity for the sale, arising from the perishable nature of the property, which made its preservation for the owner impracticable, or that, from that or some other cause, it was neither possible to proceed with its transportation nor to store it; that the carrier has acted in good faith and with sound discretion; and that it was impossible to communicate with the owner and to receive instructions from him as to the course to be pursued, without occasioning a delay

728; Propeller Mohawk, 8 Wall. 153; The Velona, 3 Ware, 139; The Brewster, 95 Fed. 1000.

26. L. R. 5 Q. B. 346.
27. 3 Rob. Adm. 259.

which the circumstances and condition of the property would not admit.28 And whether, under all the circumstances, these conditions existed to justify the sale, is, when the action is one at law, a question of fact to be determined by the jury under proper instructions by the court. 29

Sec. 791. (§ 436.) Same subject-Sale when not necessary amounts to a conversion. If the carrier or the master of the vessel sell the goods when the necessity for so doing does not exist, he will be liable in an action for their conversion, and nothing but the existence of circumstances of actual necessity will afford an excuse for the sale. Neither the advice of others who are called upon to examine the goods, nor the decree of a court having no jurisdiction or authority to order a sale under such circumstances, will be any justification to the carrier or any protection to the purchaser, if it appear that a case of necessity did not require the sale.30 And in the case of an unjustifiable sale by the master, the owners of the vessel will also be liable to the shipper.31

Sec. 792. (§ 437.) Same subject-What degree of necessity must be shown-Necessity for communication with owner.— The degree of necessity which must exist in such cases to justify the sale is generally expressed by the words "supreme, "urgent," or "absolute." This is assuming that there are dif ferent degrees of necessity, the highest of which is necessary to justify a sale by the carrier. If, therefore, according to these expressions, there be any possible manner of preserving the goods short of their sale, it must be resorted to; otherwise

28. Butler v. Murray, 30 N. Y. 88; The New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387; Bryant v. Ins. Co., 13 Pick. 543; Am. Ins. Co. v. Center, 4 Wend. 43; Hall v. Franklin Ins. Co., 9 Pick. 466; Wilson v. Millar, 2 Starkie, 1; Saltus v. Everett, 20 Wend. 267; Myers v. Baymore, 10 Penn. St. 114.

29. Butler v. Murray, supra.

30. Cannan v. Meaburn, 1 Bing. 243; Myers v. Baymore, 10 Penn. St. 114; Smith v. Martin, 6 Binney, 262; Ewbank v. Nutting, 7 Com, B. 797; Freeman v. The E. India Co., 5 B. & Ald. 617; Wilson v. Dickson, 2 id. 2.

31. Cannan & Meaburn, 1 Bing. supra; Smith v. Martin, supra; Ewbank v. Nutting, supra.

there will exist neither the authority to sell nor a title in the purchaser. But it has been said with great force that "the word necessity, when applied to mercantile affairs, where the judgment must, in the nature of things, be exercised, cannot of course mean an irresistible compelling power. What is meant by it in such cases is, the force of circumstances which determine the course a man ought to take. Thus when, by the force of circumstances, a man has the duty cast upon him of taking some action for another, and under that obligation adopts the course which, to the judgment of a wise and prudent man, is apparently the best for the interest of the persons for whom he acts in a given emergency, it may properly be said of the course so taken that it was, in a mercantile sense, necessary to take it.'32 And in the same case it is said, in reference to the necessity for awaiting instructions from the owner, that "the possibility of communicating with the owners must, of course, depend on the circumstances of each case, involving the consideration of the facts which create the urgency for an early sale, the distance of the port from the . owners, the means of communication which may exist, and the general position of the master in the particular emergency. Such a communication need only be made when an answer can be obtained, or there is a reasonable expectation that it could be obtained before the sale. When, however, there is ground for such an expectation, every endeavor, so far as the condition in which he is placed will allow, should be made by the master to obtain the owner's instructions." In a case33 in the federal courts it is said: "If the owner is at hand and can be easily communicated with, the master must advise the owner of the facts and take his directions; and where such directions may be obtained, there is neither necessity nor authority nor justification for the master to assume to sell or to hypothecate without notice."

32. The Australasian S. N. Co. ads. Morse, L. R. 4 P. C. Cas. 222. See also, Acatos v Burns, 3 Exch. Div. 282; Atlantic Mut. Ins. Co.

v. Huth, 16 Ch. Div. 474; Hall t. Insurance Co., 37 Fed. Rep. 371.

33. Astrup v. Lewy, 19 Fed. Rep. 536, citing The Julia Blake,

Seç 793. (§ 438.) Same subject-Sale must be made where market and competition exist.-Besides the three requisites of necessity, sound discretion, and communication with the owner when practicable, it must also appear that the sale was made where there were a market and competition, and buyers with the means of purchasing. This rule has been applied in the case of a wreck in a distant ocean, where the property was derelict, or about to become so, and the persons who had it in their power to save the crew and cargo preferred to drive a bargain with the master, by which they claimed to have become owners of the cargo, for a consideration merely nominal. The necessity in such a case, it was said, may be imperative, because it is the price of safety, but it is not of that character which permits the master to exercise the power of sale which belongs to him in certain cases of absolute necessity; and the pretended claimants, under the sale, were treated as mere salvors, and were allowed only for salvage and freight.34

107 U. S. 418. See also, Moore v. Hill, 38 Fed. Rep. 330; The Joseph Oteri, Jr., 66 Fed. 581, 13 C. C. A. 645, 30 U. S. App. 1.

34. Post v. Jones, 19 How. 150. The following is an extract from the opinion of Grier, J., in this case: "As many of the circumstances attending this case are peculiar and novel, it may not be improper to give a brief statement of them. The Richmond, after a ramble of three years on the Pacific in pursuit of whales, had passed through the sea of Anadin, and was near Behring's straits, in the Arctic ocean, on the 2d of August, 1849. She had nearly completed her cargo, and was about to return; but, during a thick fog, she was run upon rocks within half a mile of the shore, and in a situation from which it was impossible to extricate her. The master and crew

escaped in their boats to the shore, holding communication with the vessel without much difficulty or danger. They could have probably transported the cargo to the beach, but this would have been unprofitable labor, as its condition would not have been improved. Though saved from the ocean, it would not have been safe. The coast was barren; the few inhabitants, savages and thieves. This ocean is navigable for only about two months in the year; during the remainder of the year it is sealed up with ice. The winter was expected to commence within fifteen or twenty days, at farthest. The nearest port of safety and general commercial intercourse was at the Sandwich Islands, five thousand miles distant. Their only hope of escape from this inhospitable region was by means of other whaling ves

Sec. 794. (§ 438a.) Same subject-Cannot give away the goods. It follows clearly from the foregoing considerations that while the master of a stranded vessel may, in case of urgent necessity, throw overboard or otherwise sacrifice his