
    The Schooner Argyle vs. George Worthington.
    The person who charters a vessel does not become owner for the trip, when by the terms of the charter-party he pays a gross sum, the general owner furnishing the master and crew and defraying the expenses of the vessel.
    In such case the vessel is liable on the bill of lading.
    A contract by the Captain to carry goods and collect the price from the consignee, is binding on the vessel, and may be*enforeed under the statute in a suit against the boat.
    This is a Writ or Error to the Court of Common Pleas of Cuyahoga County.
    The action below was Assumpsit, brought by the defendant in error against the Schooner Argyle. The cause was submitted to the Court without a jury, and upon the trial the following bill of exceptions was presented and signed :
    This was an action of Assumpsit; plea, the general issue; and upon the trial of the cause the plaintiff, to maintain the issue upon his part, offered in evidence the copy of the bill of lading which is hereto attached, accompanied with proof that the copy was a true copy of the original bill of lading which was made upon the books of B. F. Smith & Co., that the original was signed by John P. Teal, who was at the time of the execution of the same, master of the defendant; that neither said original nor said copy was delivered to said plaintiff, but during the year 1845 said copy was obtained from a clerk of B. F. Smith &• Co., that the goods described in said bill of lading were by the plaintiff delivered to the said B. F. Smith & Co. for transportation, and at the time of such delivery for such purpose, the said B. F. Smith & Co., who were forwarding and commission merchants, executed and delivered, and the plaintiff accepted and received, the contract and receipts hereto attached ; that one Chester Deming, was at the time said goods were carried by the defendant, the owner of her, that at that time said B. F. Smith & Co. had chartered said defendant for a trip to the upper Lakes and back to Cleveland, of the Deming, by the terms of which charter the said Deming furnished master and crew and defrayed their and the expenses of said vessel, the said B. F. Smith & Co. assuming to pay a gross sum for the trip. The defendant waiving1 all objections to said copy on the ground of its being a copy of bill of lading, and not the original, and thereupon objected to the admission of said bill of lading; which objection was overruled and said evidence received. The plaintiff proved that the master of the defendant collected and received from the consignee of said goods at Milwaukie the bill of purchase or purchase money of said goods, and that defendant was at the time said goods were carried, a water craft navigating the v/aters of Lake Erie, and rested.
    ■ The defendant, to maintain the issue on his part, offered in evidence the contract or receipt hereto attached, proved its execution by the said B. F. Smith & Co., and delivery to and receipt and acceptance by the plaintiff at the time said goods were delivered said B. F. Smith & Co. for transportation, and that at the time said goods were carried by said defendant, said Chester Deming was the owner of the defendant, and that she was running under the charter to said B. F. Smith & Co. as herein before stated, and rested.
    The plaintiff further proved that said defendant performed her upward trip and laid up at Milwaukie, and for the reason that she did not perform her downward trip the said B. F. Smith & Co. afterwards abandoned the charter; which abandonment was accepted by said Deming, and by the terms of such abandonment, said Deming was to receive all the earnings of the defendant on said upward trip, and said B. F. Smith & Co. were to pay nothing for said charter.
    No evidence was offered to show that said purchase money collected by said master was ever paid or received by said Deming, and it was proved that the same was never paid to B. F. Smith & Co. No evidence was offered to show that said ever knew that said goods were carried by said defendant.
    Whereupon the Court decided that the plaintiff was entitled to recover, and gave judgment for the plaintiff, to which said decisions of said Court the defendant excepted and prayed that his bill of exceptions in that behalf might. be allowed, which is accordingly done, and upon his motion the same is ordered to be made a part of the record in this case.
    The following is a copy of the Bill of Lading referred to in the bill of exceptions:
    Cleveland, Ohio, October 17th, 1844.
    
      Shipped, in good order, by B. F. Smith & Co., as Agents and Forwarders, for account .of whom it may concern, on board the Sch. Argyle, Teal, Master, the following articles, which are to be delivered in like good order, at the Ports specified below, (damages of navigation only excepted,) unto the respective consignees, of their assigns, they paying freight and charges as specified below.
    In witness whereof, the Master of said vessel hath signed Bill of Lading, of.this tenor and date.
    
      
    
    
      The following is a copy of the receipt: '
    ReceiveCleveland, Oct. 11, ’44, of Geo Worthington,
    75 Bars Iron, ) '
    ' 15 do do 5..........................$29 88
    _ 20 Hf. Boxes Glass,
    to for’d. to Dousman & Co., Milwaukie, for P. Peck, Whitewater, Wis. Ter., subject to chg’s. for Bill purchase of $141 52; also, 15 Grindstones, 70 36, to for’d. to J. Mattison, Chicago,
    111. We will not hold ourselves accountable for. Bill Purchase.
    B. F. SMITH & CO.,
    Per S, S. Coe.
    The plaintiff in error seeks to reverse the judgment of the Court of Common Pleas: —
    ■ 1. Because the Court admitted in evidence the bill of lading, &c.
    2. Because the Court decided that the defendant in error was entitled to judgment against the plaintiff in error, and rendered such judgment, when by the laws of the land judgment should have been given- in favor of the plaintiff.in error.
    
      S. B. &/■ F. J. Prentiss, for Plaintiff in Error,
    made these points:
    1. The bill of lading was not legal evidence in the case, and if accompanying evidence could make it admissible, that offered by the plaintiff below for that purpose, was insufficient.
    - 2. The master of a vessel can make no contract binding the vessel or the owner to the fulfilment of his engagement to collect and pay over the purchase money which may be due on the property he carries to the buyer.
    3. The master in the collection of the money was the agent of Worthington, and not of the vessel Or her owner.
    4. If Smith & Co. were not liable, the’ vessel was not.
    5. The abandonment of the charter by Smith & Co., and the acceptance of the abandonment by Dealing, and the terms on which it was made and accepted, cannot make the vessel ]jap]g jf s¡5e were not before liable. ’
    Against whomsoever else Worthington may have a remedy, he has none against the vessel, under our statutes.
    They cited the following authorities:
    Curtis, Merchant Seaman, 168-71, 217; Abbot on Ship, Perkins’ Ed. 46-53; 79, 90, 400-3; 11 Johns. Rep. 107; 4 Greenl. 407; 4 M. & S. Rep. 288; 7 Bing. Rep. 190; 7 Car. & Payne’s Rep. 41. ,
    
      F. W. Bingham, for Defendant in Error,
    cited the following authorities:
    
      Beckwith v. Sibles, 11 Pick. Rep. 482; 1 Sumner’s Rep. 568 ; 2 do 589; 8 Cranch’s Rep. 49; Mclntire y. Bowen, 1 Johns. Rep. 229; Grade v. Palmer, 8 Wheat, Rep. 632; 4 Wash. C. C. Rep. 110; Merch. Seamen, 171, 244; Hooe v. Grovener, 1 Cranch’s Rep. 214; Darling v. Peck, 4 Ohio Rep. 71; Ibid. 334; 12 Ohio Rep. 343 ; 2 Campb. Rep. 529; 6 Cow. Rep. 173; Abbot on Ship. Story’s Ed. 98, 161.
   Avery, J.

The bill of lading and the receipt of B. F. Smith & Co., sufficiently establish in Worthington the ownership of the goods shipped on board, this schooner, and entitle him to the proceeds of the sale. This firm of B. F. Smith & Co. appear also as mere agents and forwarders in both instruments ; the right therefore of Worthington to sue, if a suit by, any one can be maintained, does not admit of serious doubt. By the bill of lading, Teal, the master, contracts to deliver the goods to the consignees, they paying freight and charges as specified in the bill; the charges specified are $141 52, described therein as “ bill purchase ! ”

According to the terms of the contract, this captain of the boat engaged to obtain payment for the goods when he should deliver them. Had he authority to make this contract, and subject the boat to the duty of fulfilling it ? If so, the suit is properly brought against the boat, and the judgment fixing her liability is right.

It is claimed that B. F. Smith & Co. ought to be deemed the owners of this boat for the trip, as they have in their receipt expressly exempted themselves from liability, the could bind no one but himself by his bill of lading ; at all events, that he could not bind the boat. . And further, if this defence cannot prevail, then it is asserted that the master of a boat has in no case authority to bind her to the performance of a contract like the present one.

If the facts in the case, by the maritime law, exempt the boat, and B. F. Smith & Co. are exempted by the form of their receipt, something like a fraud would seem to have been practiced upon the owner of these goods. The whole transaction however, upon the papers, appears to be consistent with fairness. Smith & Co. were forwarders, avoiding liability, while Teal, as captain, attempted by his contract to'secure the rights of the freighter. And the bill of exceptions shows, I think, a state of facts rendering the instruments drawn, appropriate ones for the parties.

The firm of Smith & Co., had chartered the boat from Chester Beming, the owner, for a trip to the upper Lakes and back to Cleveland. Beming furnished master and crew and defrayed their expenses and the expenses of the vessel, Smith & Co., agreeing to pay a gross sum for the trip. Thi? did not, in the opinion of the Court, make Smith & Co., the owners of the boat for the trip, but left her still as the boat of Beming, the general owner; 1 Cranch’s Rep. 214; 8 Cranch’s Rep. 39; 1 Johns. Rep. 228.

A bill of lading like the present must frequently become necessary, where goods are carried for various freighters. The master of this boat had authority to execute such an instrument and make it binding upon the boat ; Abbot,. 156; Cowen’s Rep. 193; Swan’s Slat. 209.

The ship, by the maritime law, is bound to the performance of every contract made by the master, within the scope of his authority ; 3 Kent’s Com. 162.

The shipper has a lien on the vessel for the execution of a contract by bill of lading entered into by the master; Abbot 011 s^'PP^nS5 Stay & Warkins, 161, notps.

Our statute, providing for the collection of claims against steamboats and other water crafts, declares that the boat shall be liable “ for damages arising out of any contract for the transportation of goods.”

The decision of the Court therefore is, that the Argyle was liable upon this bill of lading, and the judgment of the Common Pleas must be affirmed.  