
    KENZEL v. KIRK.
    December, 1866.
    Affirming 37 Bari. 113; S. C., 31 Bow. Pr. 184.
    The mere fact that a vessel is run on shares, by the captain, does not exonerate the owners from liability for supplies, purchased by the captain in the name of the vessel .
    
    Proof of sale of the supplies to the captain, and that his name was registered as such with the owner’s in the registry of the vessel, casts the burden on the owners, to prove that the captain had the possession, command and navigation; and this is a question of fact.
    William H. Kenzel brought this action, in the supreme court, against Edwin R. Kirk and others, owners of the ship Moonlight, to enforce payment for necessary supplies furnished to the captain.
    At the time of the purchase, plaintiff was informed by the master, Rogers, that he was master; that the voyage was to the West Indies, and that the supplies were necessary for her.
    The defendants proved that the master was running the vessel on shares, receiving half the earnings, and paying half the disbursements. He was to provision, victual and man the vessel; although it did not appear whether provisioning was considered as one of the disbursements. These facts, it was claimed, sustained the defense that the master was not the agent of the owners, but the hirer or charterer of the vessel, and had no power to bind the owners.
    The plaintiff proved that he had no knowledge of the arrangement between the owners and the master; that the goods had been purchased to the name of the vessel and charged to her; that the vessel had originally been built for Rogers to command her, under an understanding that he was to do her business; that he had been in the habit of buying supplies for the vessel in ports were the owners did not reside, for which they paid; and that he was in the habit of dotog with the vessel as other captains did. The plaintiff further showed that the owners dismissed the master at Key West, on her outward trip, and took possession of the vessel, and of a part of the stores to recover for which this action was brought. Other details sufficiently appear in the opinion.
    The judge refused to grant a nonsuit; and the jury found for plaintiff.
    
      The supreme court, on appeal from the judgment entered thereon, held, that in the absence of any notice to the plaintiff that the vessel was let on shares, or of an opportunity, by reasonable care and caution, to ascertain the fact, the case would appear to be the ordinary one of the master of a vessel buying necessary supplies for the voyage. Reported in 37 Barb. 113; S. C., 21 How. Pr. 184. The defendants appealed to this court.
    
      George F. Betts, for defendants, appellants.
    
      Dennis McMahon, for plaintiff, respondent.
    
      
       Compare Macy v. Wheeler, 30 N. Y. 231; Vose v. Cockcroft, 44 N. Y. 415; affirming 45 Barb. 61; and Ford v. Crocker, 48 Barb. 142.
    
   By the Court.

Peckham, J.

A prima facie case of liability was shown against the defendants, by proofs of the sale and delivery of the supplies to Rogers, as captain of the vessel. The fact that he was captain, gave him authority to bind the owners in the purchase of supplies, in the absence of any proof qualifying the relation of the parties. Saxton v. Read, Hill & D. Supp. 323, and cases cited.

It appeared on the trial that the vessel was registered in the name of the owners, with Rogers as captain. These facts being shown, it rested with the defendants to establish a defense. The defense attempted was that Rogers was not the agent of the owners, but ran the vessel himself as commander and owner pro tempore. I think the testimony failed to sustain the defense ; at least it was not so clear that the defendants could call upon the court to nonsuit the plaintiff on that ground. The defense insists, that the mere fact that the vessel was run on shares, was sufficient to discharge the owners from responsibility, as it would prove that the captain was the owner pro hac vice, and not the parties who had hired the vessel to him. We cannot assent to that proposition. It cannot be sustained on principle or authority. The real question in all such cases is, who, by the charter-party, has possession, command and navigation of the ship? A mere question of fact. 3 Kent Com. 138, 5 ed. _ There is nothing in this testimony inconsistent with the right of the owners to direct how and with what the vessel should be freighted, or at what rate of compensation or value, or when she should sail; the division of the earnings being a mere mode of compensating the captain for his' services as their , agent. The owners took the vessel from the captain at Key West, before her voyage was completed, and told him to leave her; they receiving the residue of the supplies bought of the plaintiff, then remaining unused on the vessel.

The captain, so far as appears, claimed no right to remain, but left, and never was again on board of her. There was no claim that the vessel had been chartered to .the captain for any particular time.

On such facts it is impossible to say, as matter of law, that the captain was the owner for the time, and had possession and exclusive control of the ship. In the test cases in Massachusetts relied on by the appellants, it is held that each case must depend upon its peculiar facts as to whether the owner or the captain has possession, command and navigation of the ship.

In Webb v. Pierce, 1 Curt. 104, at p. 108, the court say, whether the owners are liable for supplies furnished to the captains, depends on the facts of the particular case, though the vessel has been taken on shares. It is a question of fact merely. Saxton v. Eead decides this case. There the vessel was “ run on shares.” The court properly held then that the effect of the arrangement was to provide a mode by which the master’s compensation was to he determined. It would not be profitable to criticise the numerous cases found in the reports of Massachusetts and other earlier States on this subject. Many are referred to in the cases already cited. See' Baker, v Huckins, 5 Gray, 596. They are all based upon the same principle, viz: that the several owners are not liable when they have let the possession, command and navigation of the ship, not to one as an agent, but for the time as owner, as much so as a tenant of a house is owner for his term. In such case, the doctrine of agency has no application whatever. The hirer, then, in all contracts for supplies, acts for himself, and upon his own responsibility and credit, as much as the tenant of a dwelling in the purchase of supplies for his family. See Macy v. Wheeler, 30 N. Y. 231; Stedman v. Feidler, 20 Id. 437.

When the hirer is the owner, for the time, of the vessel run on shares, the facts will show that the master not only commands the vessel, and manages her trade and employment, hut victuals and mans her, and the moiety of the gross freight is not retained by him simply as a compensation for his services, but the share paid to the owners is rather to be regarded as their charter-money for the use of the vessel. 1 Curt. 112.

While the hirer is the temporary owner, he of course has more power over the vessel, her trade and employment, than an ordinary captain. The facts of this case, so far as presented, show simply an employment of the captain to run the vessel, not a hiring of the vessel to him. If the owners had said to the captain, we will pay you seventy-five dollars a month, or we will give you one-half of the gross earnings to sail her for us as captain, and you shall pay half of her disbursements, and find all her supplies, the responsibility of the owners for supplies to third persons ignorant of the arrangement, would not have been changed.

The captain in this case testified at the trial that he did on board of this vessel, and with regard to her business, as captains generally do.” He does not seem to have had, or to have claimed, any other authority or power in regard to her.

It would seem to be clear, therefore, that he never hired the vessel, either in the ordinary or in the legal sense of that, phrase. He was simply an employee of the owners, and they remain liable for supplies.

There is no other question calling for discussion in the case. The fact that the supplies were purchased at a port other than where the vessel lay, is not presented and should not be decided. It was not argued as a ground of nonsuit, nor was the courfrequested to charge thereon. The charge was excepted to in gross, and hence no part is-presented for review.

The judgment must be affirmed.

All the judges concurred.

Judgment affirmed, with costs.  