
    Lynde Walter versus Thomas Brewer.
    Of the liabilty of ship-owners for the conduct of their masters.
    [Where the owner went in the ship to attend to the business of the voyage, and to bring home a cargo for himself, and take no freight for others, and the master clandestinely, and without the knowledge of the owner, took certain bales of merchandise on freight, and signed bills of lading therefor, which were endorsed to the plaintiff, who brought his suit against the owner for the non-delivery of the bales, and evidence being given tending to show that the owner knew the bales were taken by the master on board before sailing, upon which the judge directed the jury that, if they believed this fact, they must consider the owner as having adopted the act of the master, in which case he would be accountable; otherwise he would not be answerable; and a verdict being given for the plaintiff: — held, that the direction was wrong, as the liability of the owner must rest on his knowledge that the goods were received on board upon freight. And a new trial was therefore granted.]
    Assumpsit against the defendant, as owner of the ship Laura. The declaration states that one W. C. D. was master of said ship, appointed by the defendant; and that one Martin Bickam, at Monte Video, laded on board said ship ten bales of Neutra skins, to be transported to Boston in said ship, at a certain freight mentioned in a bill of lading signed by the said master; that the said bill of lading was, for a valuable consideration, assigned to the plaintiff; and that said ship arrived safely at Boston; but that five of the said bales were not delivered, according to the undertaking in said bill of lading.
    At the trial of the cause, which was had before Parker, J., on the general issue of non assumpsit, November term, 1812, it was proved that the said ship Laura sailed from Boston, one Seaver being master, and the said W. C. D. being second mate thereof; the defendant being on board, and owning the said vessel; that at Rio Janeiro the said Seaver was removed, and the said W. C. D appointed the master of said ship; that the defendant went in the ship for the purpose of attending to the business of the voyage, intending to bring home a cargo for himself, and not intending to take freight for others; that, while the ship lay at Monte Video, the defendant lived on shore, having a room to transact the *• * 100 ] business of the voyage in, being obliged to employ * a Spanish merchant, according to the laws and customs of the place; that the ship lay at Monte Video several months, during most of which time the said Bickam was there, being master of another ship, and being an American citizen known to the defendant ; that, on the 3d of April, 1810, the defendant having gone to Buenos Ayres, distant 150 miles from Monte Video, the said ten bales of skins were sent from said Bicka?n’s ship to the ship Laura, and delivered to said W. C. D., who received the same, and ordered them to be stowed away carefully, saying that they were his adventure; and directing the mate not to inform the defendant that the said bales had been taken on board; that, a few days afterwards, the said W. C. D. caused two of said bales to be taken out of the ship, and afterwards another, and sent them on board other vessels, having fraudulently sold the same.
    It was proved to be the custom for all vessels at that port, intended for freight, to be advertised as such in the coffee-houses ; that the ship Laura was not so advertised; that she was not intended for freight; and that nothing was brought home in her, except the cargó belonging to the owners, saving the bales so taken on board by the said W. C. D. It was also in evidence that the defendant had refused a valuable freight, which had been offered him.
    By a bill of parcels produced at the trial, it appeared that the defendant purchased of the said W. C. D. two of the bales of skins which were shipped by Bickarn as aforesaid.
    One Orne, who was mate of the ship, testified that he made a regular return to the defendant every morning of the transactions on board the ship the preceding day ; but that, in consequence of the orders of the said W. C. D. to say nothing about these bales of skins, he did not make any return of them, either to the defendant, or the Spanish agent, or to Mr. Badlam, a young man in the employment of the defendant, and with whom he left the care of his business «n shore when he left Monte Video for Buenos Ayres; but that afterwards, and before the ship sailed on her homeward * voyage, he complained to the defendant of [ * 101 ] many irregularities of the said W. C. D., and thought it probable, from his disposition at the time, that he informed the defendant of the transaction respecting the skins.
    Mr. Bickarn. had sailed in his ship while the defendant was absent at Buenos Ayres, and left a letter for him, expressive of his regard and good wishes, and accompanying some letters to be brought by the Laura to Boston.
    
    The Laura sailed for Boston about the 1st of August, 1810, the said H7. C. D. having signed a bill of lading of the cargo, and including the two bales of skins, sold as aforesaid to the defendant, dated the 1st of July, 1810.
    The ship having arrived at Boston, the plaintiff, to whom the bill of lading mentioned in the declaration had been endorsed, called for the ten bales of skins shipped by Bickarn, five of which were delivered; three had been disposed of, as before mentioned, at Monte Video, during the defendant’s absence at Buenos Ayres; and two were claimed by the defendant, as purchased by him of the said W. C. D. at Monte Video.
    
    It was in evidence that masters of ships like the Laura usually had a privilege of three or four tons, and that the said ten bales would not more than fill up such privilege.
    The judge instructed the jury that, although the owners of ships were generally liable for the contracts of their masters abroad touch ing 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.
    
    [*102] * A verdict was returned for the plaintiff, and dam-
    ages assessed to the value of five bales of skins, comprehending the three disposed of by the master, and the two purchased of him by the defendant.
    If the foregoing direction was wrong, as it related to all the goods, or as to the three bales which had been disposed of by the master, a new trial was to be granted; unless the Court should be of opinion, upon the facts reported, that the defendant was answerable for the conduct of the said master.
    The cause was argued, at the last March term in this county, by Jackson and Fuller for the plaintiff, and Dexter and Otis for the defendant; and at this term the opinion of the Court was delivered by
   Parker, J.

The Court in this case are of opinion that the direction given at the trial — which considers the owner of a ship not liable for goods clandestinely taken on board by the master, the owner being present, and having the management of the voyage himself, or, when accidentally absent, having an agent with whom he intrusts that business, leaving nothing to the master but the care of sailing and directing the ship herself, and especially when the ship is not a freighting ship, and when the shipper might have known the limited authority of the master — was right. And it seems to be reasonable, as well as lawful, that the shipper of goods, who deals altogether with the master, expecting to avail himself of his privilege, and knowing that the owner intended to load the vessel himself, should not have recourse to the owner in case of embezzlement; for in such case the shipper trusts to the master alone, and the owner may be utterly ignorant that the property is on board, for which he is to be made liable.

We cannot think that, when a merchant sends his ship abroad with a supercargo, which is often the case, and with no expectation or design of taking freight, a foreign shipper of goods may make a private bargain with the master, and at the same time avail himself of the general liability of the * owner to [ * 103 ] secure him from the misconduct of the master. Such a principle would be mischievous to ship-owners, and be productive of frauds, by holding out temptations to treat with the master for less than the ordinary freight, to the prejudice of the ship-owner, who would receive no consideration for the risk he incurs.

The Court also think, with the judge who tried the cause, that, :f the ship-owner, under such circumstances, assents to and adopts the act of the master, he may be accountable in the case of embezzlement, notwithstanding the contract was made with the master alone; because he appoints the master, and a degree of credit is given to him, by his appearance in a situation of so much trust; and the ship-owner may then be considered as giving a permission to the master to take the freight on his own account, without denying his own responsibility for the safe delivery of the goods.

We think in this case, if the defendant knew, before the ship sailed from Monte Video, that the master had received the goods on board upon freight, it was his duty to see to their safe custody and delivery at the port of discharge ; and had the goods all been on board when the defendant returned from Buenos Ayres to take charge of his ship, and had it been made known to him that the master had received them on board in his absence, on freight, he would have been accountable for them in case of embezzlement.

But we are not satisfied that on this point the jury were suffi ciently instructed. They were informed generally that if the defendant knew that the goods had been received by the master before the vessel sailed, he must be considered as having adopted the act of the master. Under this general direction, the jury might have considered it immaterial to distinguish between the bales which had been sold by the master before the defendant’s return, and those which might be supposed to remain on board the vessel.

We think that a distinction exists in law; and that the defendant might be answerable for those bales which were on board the vessel, and not for those which had been previously embezzled.

* We also think the charge not sufficiently clear, in [ * 104 ] stating the liability of the defendant to rest on his knowledge of the goods being received by the master on board He might know this, and suppose them the master’s own adventure ; but his liability would rest on his knowledge that the goods were received on board upon freight, and a presumption of an assent on his part to the contract made with the master.

New trial granted. 
      
      
        a) Burgon vs. Sharpe, 2 Camp. 529.— Ward vs. Green, 6 Cowen, 173.
     
      
       See cases Temp. Hardw. 85, 194, Boucher vs. Lawson.—Abbot on Shipping, 85,
     