
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Purvis v. Tunno, et al.
    
    Where a vessel chartered for a voyage becomes disabled by accident while taking in her cargo, the freighter will not be hound by the charter party, unless she is repaired, and rendered fit for the voyage within a reasonable time, of which the jury are the proper judges.
    The master is the agent of the owner, who is liable for his defaults, although the whole vessel is chartered ; unless the charterer engage the master and mariners, so that the hull only belongs to the owners. Vide 3 Bay, 493, S. C.
    Motion for a new trial. The action was on a charter party, and was tried in Charleston, before Grimke, J. The contract was ior the affreightment of plaintiff’s brig, from Charleston to. Cowes and a market. It appeared that the defendants had chartered the whole brig, and were lading her at a wharf, and had put on board a considerable number of articles. The captain removed the vessel from the dock to the head of the wharf, where she grounded, and received considerable injury, starting her butt ends, and springing a leak. The vessel was then taken to another wharf, where she discharged the heavy articles on board, and in about eight days was repaired, and ready to receive her cargo. It did not appear very satisfactorily that she was seaworthy before the accident. The defendants, after the accident, abandoned the charter party, and refused to relade the goods, after the vessel was repaired. The vessel was chartered to carry goods. The owner of the vessel employed the master and crew, who were subject to his orders. Verdict for defendants.
    For the plaintiff, it was contended, that although the accident should be considered as the fault, or neglect, of the captain, yet ibis would not justify a rescission of the contract, being a reparable accident; the owners to be answerable for demur: age, and charge, as in other cases, by the marine law. Also, that the fault of the captain must be imputable to the charterers, who must be considered as the owners pro hue vice; the captain being liable, to their directions while lading, and they might have ordered the vessel into another birth.
    
      E contra.
    
    The question was one proper for the jury, and their decision was well founded on law and evidence. The owners have their remedy against their agent, the captain. The common law considered the owners of vessels, carrying for freight, as common carriers. Abbott, 83, 86. By the marine law, as by the civil law, the employer is answerable for the acts of his agent, acting under his express or implied authority. Abbott, 91, 93. The contract now sued on, was made by the very agent, by whose mismanagement the accident happened. He could not be considered the agent of defendants : tor if so, the defendants might load the vessel at their will, much to the disadvantage of the owner; and besides, might place the vessel in very dangerous ;ituations, and keep her there an unreasonable time. It is the business of the owner, so to place the vessel, that he may fulfil his contract. Expedition is a great object in commerce ; and the defendants were therefore not bound to await tlie repairing of the vessel. Abbott, 153,158. The vessel was unsafely moored ; and the owners are an. gwerable for goods lost in such case. Abbott, 196. This shews that the freighter is not. Where the ignorance of the master is the cause of stranding, the owner is liable. Here the accident was occasioned by the gross neglect and temerity of the captain ; and the jury were the proper arbitrators to decide the question. Where a shipper neglects to load according to agreement, the compensation must be decided by a jury. Abbott, 222, 223. But even admitting that the freighters' were the owners pro hac vice, and might direct the master to any station they thought proper, it does, not appear, that the vessel was fit for the voyage. The evidence proves the contrary; nor was she repaired and ready in a reasonable time. The vessel was not read}'' in time at first. The covenants in such agreements are not distinct and independent; but the covenant on the pait of the ship owner is a condition precedent. Lex Mercat. 109. The ves§el was pumped early and often, before she received any part of the cargo. 2 Bur. 883, 886. If the ship had been disabled by spme supervenient cause, after the cargo had been put on board, without any fault of the captain, the owners would not be liable ; i. e. after the vessel had sailed, broke ground, and begun her voyage, and after the risk began. But the roaster is elected and appointed by the owner, and not by the charterers, and therefore cannot be subservient to the orders of the latter. Abbott, 84. A contrary doctrine would be subversive of trade. The captain is generally a stranger to the charterers, who cannot be supposed to know any thing about his skill or qualifications. The freighter may be considered as the owner pro hac vice, where he hires the whole ship, and mans her himself. In such case, if the master colludes with the owner of the ship, and acts fraudulently, it will be barratry : although in other cases, barratry cannot bo committed by collusion bel ween the master and the owner. 2 Marsh. 454, Cowp. 143, 155, Lex. Mercat. 109, Paik. fc¡4, 89.
   Per Curiam.

(Bay, Johnson, Trezevant, and Brevard, Justices; absent, Grimke, J. and Waties, J.)

The material question in this case seems to be, whether or not the vessel was in readiness within a reasonable time after the accident ; and this was a question within the province of the jury, depending on matters of fact, and the rules of Jaw applicable to those facts. In mercantile transactions, de-patch is often times of much importance ; and the defendants might have sustained considerable prejudice in point of interest, if they had waited until this vessel was repaired, before they sent away their merchandize. They were not compelled by law to do so, unless the vessel was ready in a reasonable time : and what was, or was not, a reasonable time, was proper for the jury to determine. With regard to the question, whether the master of a vessel, while receiving the cargo from the freighters, is to be regarded as their servant, and subject to their control, or as owner for the time, or not; the court were of opinion, that the master can in no such case be so considered, unless the freighter be also his employer. Unless he has the appointment of the master, the latter has the direction, generally, of the ship, cot only in the port of reception, but elsewhere. The freighters ought not, on many accounts, to have a superintending authority over the master. They might endanger the vessel ; they might give contrary directions, &c. But if the charterer hires the ship, master, and mariners, and the hull only belongs to the owners, it is otherwise : for in such case barratry may be committed, although the owner of the hull colludes with the master. See 1 Johns. 229.

New trial refused.

Desausstjre & Ford, for plaintiff. Pringle <fc Ward, for dofendants.

Note. A trading ship is employed by virtue of two distinct species of eon-tract. 1. The contract by which an entire ship, or the principal part, is let for a determined voyage, to one or more places. This is usually done by an instrument signed and sealed, called a charter party. 2. 1 he contract, by which the master or owners of a ship destined on a particular voyage, engage witlwa number of persons, unconnected witli each other, to convey thoir respective goods to the place of the ship’s destination. A ship so employed is usually called a general ship. Sec Abbott on Shipping, Part 2. Chap 2.

The master is not liable for an injury done by the vessel he is master of, to another vessel, by sailing against it. if he was not on board at the timo, and a pilot was on hoard. 1 Johns. 305, 229, 6 T. R. 411, 2 Caines, 67. The vessel was chartered for a voya;;e, but the owner reserved part of the cabin; and lie was considered owner The person to whom a vessel is chartered is considered owner, in what cases, see Cowp. 143, Lofft, 631, Marsh. 454, Cowp 155, Park. 89, Millar, 166, 174, 2 Str 1251, Abbott, 16, 18, 3 Esp. Rep. 227. Ho who, by the contract, lias the apjiomtment of tile master, is to be regarded as owner. 2 Atlc 622. By the charter pally, the owner of the vessel covenanted to carry and deliver the goods ; he is therefore responsible for the coir-duct of the master and crew. M’Intyre v. Bowne. 1 Johns. 229.  