
    Simon Forrester versus Pickering Dodge.
    A master of a ship having signed bills of lading, promising to deliver the merchandise therein mentioned to the owner or his assigns, “ the dangers of the seas, the laws of the country, and other unavoidable accidents excepted ; ” and having received orders from the shipper to manage as A. B. and C. D. had directed, with regard to goods shipped by them; it was holden, that a conformity to the directions of either A. B. or C. D. was sufficient to justify the master.
    * This was an action of assumpsit for the value of cer- [*565] tain merchandise, the property of the plaintiff, shipped at Calcutta on board the brigantine Caravan, owned by the defendant. The declaration set forth the bill of lading, signed at Calcutta by Augustine Heard, the master of said vessel, for ninety-two bales of piece goods, of which the plaintiff had received fifty-five bales only ; and the action was brought for the remaining thirty-seven bales.
    The action was tried upon the general issue, before Jackson, J., at the sittings here after the last November term ; and, on the trial, it appeared that the vessel sailed from Salem, in February, 1812. The law of the United States prohibiting the importation of goods of British growth or manufacture being then in force, it was intended that the master, after taking in a cargo at Calcutta, should, on his return voyage, touch at a port in South America for information ; and, if the said law should not have then been repealed, he was not to return to the United States, but proceed as he should be then instructed.
    The plaintiff shipped on board said vessel at Salem, $ 12,000 in specie. He gave to the said Heard, who was also supercargo of the vessel, written orders or instructions, dated the 15th of February, 1812 ; in which he directed the said Heard to invest the proceeds of his said adventure in Calcutta goods, “ agreeably to the orders of Ebenezer Francis and Thomas Wigglesworth,” (each of whom had also an adventure on board said vessel,) “ and to ship said goods on board the Caravan ; and manage as they,” (the said Francis and Wigglesworth) “ had directed with regard to their own.”
    The said Francis, in his orders to the said Heard, which were dated the 30th of January, 1812, after directing him to purchase and ship on board the Caravan such goods as he should think best calculated for this market, and such as are usually brought here, with some specific instructions as * to the kind of goods, [*566] proceeds as follows ; “ You will bring the goods to this country, or any other, as you shall think advisable, and sell the same when and where you shall think best ; and remit the proceeds to me, in Boston, or Thomas Dickason fy Co., London.'''’
    
    
      The orders of the said Wigglesworth were dated the 7th of February, 1812, in which, after directing the said Heard, as to the purchase of .goods at Calcutta,he proceeds as follows, namely ; “Please to mark the bales, &.c., and lade them on board the brig Caravan, under your command, for Boston. Should any circumstances oblige you to vary the destination of the Caravan on the return voyage, you will consider yourself at full liberty to do so, as far as my property is concerned, and will make the best disposition in your power of said property wherever you may go.”
    The said bill of lading, set forth in the declaration, is dated at Calcutta, on the 15th of September, 1812, purporting that the said Heard had there shipped the said ninety-two bales on board the Car avan, bound to Salem, to be there delivered to the plaintiiF or his assigns, “ the dangers of the seas, the laws of the country, and other unavoidable accidents excepted.”
    The vessel, on her return voyage, went into Pernambuco on the coast of Brazil, where she arrived on the 5th of January, 1813. The master had not then heard of the war, which had been declared by the United States against Great Britain; and, on his entering Pernambuco, his vessel was seized as a prize by the crew of a British cruiser lying there ; but was immediately restored to him by the Portuguese government. The said Heard, on his arrival at Pernambuco, or within a day or two afterwards, received a letter from the defendant, dated at Salem, the 18th of August, 1812, informing him, among other things, that the British orders in council had been revoked, and that the non-importation act would undoubtedly be repealed in a short time ; and instructing him to take out a part of the defend-[*567] ant’s goods at Pernambuco, and sell them, selecting the * heaviest goods, for the purpose of lightening the vessel ; and to leave on board goods of the defendant to the amount of $ 37,000, according to the cost at Calcutta, with which to proceed immediately to the United States. The vessel, in going into Pernambuco, struck on the bar; and the Portuguese pilot told the master, that he would not undertake to carry the vessel out, unless she was lightened. The said Heard, ón his arrival there, consulted with a Portugués8 merchant, and with the masters and others belonging to two Salem vessels, which were there at that time ; and he was advised by all of them to lighten his vessel and clean her bottom, so as to make her sail faster. There were two British cruisers in the said port, and others were seen, from time to time, cruising off, and near the port. One of the masters above mentioned had sailed from Salem on the 31st of August, 1812, in a fast-sailing vessel, loaded and prepared in the best manner for sailing. He had endeavoured to effect insurance on his vessel before leaving the United States, and got $ 400 insured at 25 per cent, for the outward passage. He could not effect any more at that rate. Most of the insurance offices demanded 50 per cent., and some of them refused to insure for him on any terms. He informed the said Heard of all these circumstances, and of the opinion entertained in this country as to the risk of capture in such a voyage. The master of the other Salem vessel had stopped at Pernambuco with a cargo of India goods, on his passage from Calcutta, and was waiting for another fast-sailing vessel, which his owner had built to send to Pernambuco, to bring home the said cargo, in order to lessen the risk of capture on the homeward passage.
    The said Heard finally determined to take out and leave at Pernambuco a part of the Caravan’s cargo, in addition to that owned by the defendant as before mentioned ; and he accordingly left at .hat place about one third in bulk of the whole cargo, including the said thirty-seven bales belonging to the plaintiff. Among the goods so left were about one half of his own adventure, and the like proportion of the adventures * of his father and [*568] brother; and also nearly half of the adventures of the said Francis and Wigglesworth. The goods of the defendant left as aforesaid were about one fifth in value of his goods on board. The goods of the plaintiff, which were left at Pernambuco, were about one half in value of his goods on board. The whole property of some other shippers was brought home, in consequence of orders so to do.
    The Caravan was lightened two feet, or a little more, by taking out these goods ; and sailed faster by one knot or more than she had when fully laden. She left Pernambuco, with the residue of her cargo, in the latter part of January, and arrived at Salem on the 23d day of March, 1813. About eleven days after leaving Pernambuco she was chased by a vessel supposed to be a British ship of war ; but escaped during the night, and saw no other cruiser on that passage.
    The judge instructed the jury, that, if the said Heard conducted fairly and honestly with respect to the plaintiff’s goods, and intended to do what he considered best for the plaintiff’s interest ; and if he acted as a man of common prudence and discretion would act under like circumstances with his own goods; his conduct was fully justified by the said orders of the plaintiff; and that, if the jury believed those facts, they would of course find a verdict for the defendant, A verdict being accordingly found for the defendant, the plaintiff moved for a new trial, on account of the said opinion and direction of the judge.
    The cause was continued nisi, and, after an argument by Otis and Saltonstall, for the plaintiff, and Prescott, for the defendant, at the following March term in Suffolk,
    
    the opinion of the Court was delivered at the same term by
   Parker, C. J.

The only question, exhibited by the report of the judge who sat in the trial of this cause, is, his direction to the jury upon the facts proved was right in law.

The objection to that direction is, that by the bill of lading the master of the vessel had undertaken to deliver the goods [*569] * to the plaintiff in Salem, unless the dangers of the seas, the laws of the country, or other unavoidable accident prevented ; and that there "was nothing in the plaintiff’s orders, which •released the master from that contract.

The orders must be considered as existing in the letter of the plaintiff, and in those of Mr. Francis and Mr. Wiggleworth to Captain Heard, the plaintiff’s letter referring Heard directly to such instructions as he should receive from those two gentlemen. If, therefore, a general discretion, or a discretion broad enough to cover the conduct of Mr. Heard, can be found in either of the letters referred to, he must be considered as having acted under the authority of the plaintiff himself.

The instructions of Mr. fVigglesivorth cannot, without a nicety which ought not to be admitted into the construction of mercantile contracts, be viewed in any other light than as giving a full and unlimited discretion to use his own judgment in the disposition of the property, according to the circumstances which might arise ; and under such authority nothing short of gross negligence or fraud would render a master liable in case of any misfortune.

The orders of Mr. Francis are more limited ; they being capable, without violence, of being construed into a direction to sell only in some other country, provided the vessel could not return to the United States. But even under these last orders, if the vessel could not return without imminent hazard, and the goods could not be sold abroad, it is questionable whether the master could be made liable for leaving them in a neutral country, if that should have been thought the safest and most discreet course at the time.

But, however that may be, he had a right, if circumstances of necessity or prudence would justify him, to adopt and follow those instructions which were most conformable to the situation in which he found himself placed; and was not left without any liberty to depart from the strict letter of the bill of lading ; as has been [*570] supposed by the plaintiff’s * counsel; because the plaintiff had given him inconsistent or contradictory orders.

It is very probable that the unlimited authority given by MrWigglesworth was caused by the peculiar state of the country at the time, and an apprehension that, on the return of the vessel, the importation of her cargo from Calcutta would "be unlawful But we think that the new and unexpected perils arising from the war, which was first heard of in Pernambuco, justified the master in acting under those orders, with respect to those perils. The case shows that the vessel was in imminent danger of capture ; and the lightening of her, by taking out a part of her cargo, was probably a principal cause of her safe voyage home ; crowded as our coast then was with enemy’s cruisers. The proportion of the plaintiff’s goods left behind, being equal to that of the master’s, his father’s, Mr. Francis’s, and Mr. Wigglesworth’s, it is very clear that no prejudice was intended to the plaintiff; and indeed the presumption is very violent, that, had the plaintiff himself been in the vessel, he would have conducted as the master did ; unless he had made full insurance upon his goods, which was the case with the defendant, who on that account directed his goods to be brought home in the vessel.

On the whole, we think that the master, for whose supposed misconduct the owner is sued, has not only justified himself by the orders under which he sailed ; but that his conduct was that of a faithful, discreet, and prudent agent, regardful of the interest of those for whom he was employed. Judgment must, therefore, be entered upon the verdict. 
      
       Quære, Whether the bill of lading could be controlled by instructions of a prior .date.
     