
    Peter Wainwright and Co. against James Crawford.
    Master of a ship borrowing reasonable sums abroad at common interest, for repairs, &c. in cases of clear and manifest necessity, may thereby make his owners liable, without any hypothecation.
    Case for 930 dollars lent and accommodated, and for money paid, laid out and expended for the defendant’s use.
    The following facts were disclosed in evidence. John C. Foster was captain of the ship Sophia, whereof the defendant was owner, and continued in his employ from June 1794 to November 1795. A release having previously been executed by the plaintiffs to captain Foster, his deposition was taken under a rule of court; wherein he swore, that while the ship was at Rotterdam, in the months of August and September 1795, an embargo was laid there by the government, and he stood in much need of money for necessary repairs, provisions and seamen’s wages. John Clark Howard paid and loaned to him, on the last day of August 1795, about 180I. sterling, which was wholly expended on the vessel, and without which sum he could not have proceeded on his voyage to London. The whole of the proceeds of the ship were paid to George Barclay and Co. the defendant’s agents in London, and that he had more than the usual powers of the master of a ship, being ordered to remit the freight from time to time to George Barclay and Co., and draw on them for such money as he should stand in need of.
    A bill of exchange was drawn by captain Foster on Barclay and Co. in London, on the 31st August 1795, for 180I. 7s. 6cL sterling, at 60 days sight, for and on account of the Sophia, in favour of the plaintiffs, but no protest accompanied it.
    *No evidence was given of the particular repairs done r* to the ship, except that a gentleman, who was casually at L 8 Rotterdam proved that some painting and wainscoting was done to her there; nor was any protest of the captain shewn, that he had met with damage at sea.
    The ship had sailed from Liverpool to Rotterdam with a cargo on board, whereof the aforesaid Howard was supercargo, and the freight of 525I. currency was credited to the defendant, but the time of its receipt by the captain did not appear. On the 18th August 1795, Barclay and Co. wrote to the captain, complaining of his silence to them, and that they had not received his freight, and urging the speedy remittance thereof to them. This letter the captain received at Rotterdam. The vessel afterwards proceeded to London, where she was sold by the defendant’s orders, and the money paid by captain Foster to the agents there.
    It was proved, that the captain was in indigent circumstances before he was received into the employ of the defendant, and that while he sailed under him, he made three shipments on his own account, the first of about 100 dollars, the second of 40 guineas, and the third of coffee to the value of 1000 dollars. Two of the shipments were afterwards attached by his creditors.
    On the 21st June 1796, the defendant settled with captain Foster in Philadelphia, and the balance due to the owner was 25I. 4s. 5d., but the account was so incompletely and irregularly stated, that it could not be ascertained thereby, how the account stood between them at different periods, and particularly in the latter end of August 1795. The disbursements, &c. of the captain on account of the ship were stated in one general charge of 1770I. 12s. 2d. and the 180I. 7s: 6d. sterling was not credited to the owner.
    Mr. Moylan for the defendant
    insisted, that the most fatal consequences must necessarily arise to the owners of ships, from the general powers contended on the part of the plaintiffs, to be lodged in the masters of vessels abroad. The former, in a circuitous voyage, must be wholly at the mercy of the latter, and frequently be exposed to ruin. If the Sophia had needed repairs or provisions, those facts were capable of other proof, and much less exceptionable than the testimony of captain Foster. Perhaps, on principles of general policy, in such a case, he would be deemed an incompetent witness, though fortified with a release : at any rate his situation detracts much from his credit. The intercourse between Rotterdam and London is very ready, and furnished the captain with abundant opportunity, during % 1 *his long continuance in port to obtain cash from Barclay and Co. if any necessaries were really wanted for the vessel. The bill of exchange for the money loaned was not presented for an obvious reason, the agents in London being fully conusant of the circumstances of the Sophia. The three shipments by the master afford a strong presumption, that part of the money was applied to his private use. Exclusive of the money taken up, he was indebted to his owner, on a settlement, in 25I. 4s. sd.
    It is clear, that the captain can hypothecate his vessel only in case of necessity; such a necessity as this, that if he did not take up the money, the voyage would be defeated, or at least retarded. 2 Dali. 195. This does not appear to be the case here. Painting and wainscoting the vessel are all the repairs we have heard of, and it was highly unnecessary to borrow money for those purposes in a foreign port. Ship owners must make good the acts of the masters. The master may, if need be, in a strange country, with the advice of his mariners, borrow money on some of the tackle, or sell some of the merchandize, but he cannot make his owners personally liable. 1 Moll. Lib. 2, c. 2, § 14. The persons of the owners are no ways made liable by the act of the master for monies taken up in a foreign port. If the master takes up money on bottomry, where there is no occasion, he only is liable ; but it is otherwise, where there is such occasion, though the master misapplies it. 2 Moll. Lib. 2, c. 11, §11. Beawes Lex Mercat. 98, 99. The master can have no credit abroad, but upon giving security, by hypothecation, x Salk. 35. S. C. 2 Ld. Raym. 982. If evident necessity alone, then, can justify hypothecation by the master, can he, abroad, bind his owners without such necessity ? He surely cannot bind the persons of his owners in a foreign port. 2 Dali. 195. As to the case of Rich executor v. Coe et al. Cowp. 636, it respected necessaries furnished in the port of the owners; and if the observations of Lord Mansfield, (lb. 639,) that “ whoever supplies “a ship with necessaries, has a treble security ; 1st. the person “ of the master; 2d. the specific ship ; 3d. the personal security “of the owners, whether they know of the supply or not,” are confined to the case then before the court, they certainly are not law, because the captain cannot bind the vessel in his home port. 2 Wms. 367. Doug. 97. Vide 1 Term Rep. 108. 1 Vez. 155. [To which the counsel for the plaintiffs fully assented.]
    The statute of 7 Geo. 2, c. 15, § 1, prevents the captain from binding the owners beyond the value of the vessel, by the embezzlement of himself or mariners.
    ^Messrs. Ingersoll and Franklin, pro quer.
    
    This is undoubtedly a harsh defence, in the language of Lord Hard- L 34 wicke, i Vez. 154. If my servant breaks my carriage, so that it cannot be made use of, and afterwards procures the coach-maker to repair it, and my family have the benefit of it thus repaired, shall I not be obliged to make the tradesman compensation ? When the Sophia, by means of the money advanced by the plaintiffs to pay for necessary repairs, provisions, and seamen’s wages, is enabled to arrive at London, and is sold at an enhanced price there, and the defendant receives the benefit thereof, shall he not repay the money thus taken up by his agent and factor at Rotterdam ? “ If the owner keeps the ship, he “keeps her subject to the charge the master has brought upon “ her. His keeping of the ship is proof of his assent, and so “brings him within the rule stated in Sid. 411.” Per Buller. 1 Term Rep. 78.
    It is freely admitted, that the lender of money to the commander of a ship must, for his own security, ascertain that the vessel needed repairs, and that the owner had no goods on board. This is fully sworn to by captain Foster here, who has no interest whatever in the cause, and the plaintiffs abroad could have no inducement to act with him collusively. Howard went supercargo to Rotterdam, and must necessarily have known the true state of the vessel, her stock of provisions, &c. It was merely accidental, that any stranger should be found at the trial, who saw the wainscoting and painting performed in Holland. Independent of the release, the master must have accounted with the lenders of the money, or his owner; and it was indifferent to him with whom he should account. Nothing can be inferred from the irregular manner in which the account is stated. But if Foster had money in his hands, would he have called on George Barclay and Co. for such small sums of money as 151. 5s., 20I. and iol. 17s. 9d, in April, May and June 1795 ? Or would they in October following have paid him 113I., with all their knowledge of the vessel’s circumstances ? These different sums are credited to the defendant in the account.
    As to the captain’s three shipments, the plaintiffs have nothing to do with them; but they may be fairly concluded to have been made on credit, his creditors having attached two of them. If the validity of a master’s taking up money on his voyage abroad, is to depend on the state of the accounts between him and his owner, it is impossible for a stranger, who depends on the credit of the vessel or owner for re-payment, to be made secure; for he has in the nature of things no safe source of information. But if the money be borrowed for a necessary purpose, though it is afterwards misapplied, the owner p *having reposed more confidence in his captain than the L foreigner who lends, ought rather to suffer. The master of a ship buys provisions, sails, &c. and has money from his owners to pay for them, but fails, without paying the money, the owners are liable to pay in proportion to their respective shares in the ship ; and the master of a ship is but a servant to the owners. 2 Vern. 643.
    It cannot escape reflection, that when the present money was loaned, the war raged in Holland.
    The defendants’ counsel has insisted, that though the master may take up money abroad by way of hypothecation in a case of necessity, yet he is not entitled to borrow on the credit of his owners, so as to charge them personally, even if there be an evident occasion. We take the maritime law to be otherwise; and that the master may borrow money in a foreign port in such case of evident necessity, for the benefit of his owners and on their credit, and at the common rate of interest, and thereby make them personally liable ; though he cannot subject them to the exorbitant premium of 30 and 40 per cent, on the sum taken up, as he may subject the vessel by way of hypothecation'. The latter mode creates no personal liability of the owner. 14 Vin. Ab. 330, pi. 9. A master of a ship having pledged the ship for the expences, &c. laid out upon her abroad, the master’s act was held binding on the owners, by the master of the rolls, after some hesitation. 1 Vez. 443. This case is not fully stated, but it would seem from the objections stated, that common interest was only taken, and that the debt did not depend on the safe arrival of the ship. In the same book, x 56, Lord Hardwicke by his reasoning implies, that the act of the master can create an assumpsit in the course of the voyage, between the ship owner and the person who does work on her. In the much disputed case of Yates v. Hall, all the judges agree in this opinion. Willes, J. says, the owner shall answer the act of the master generally. If a ship be driven into a foreign port, and a thorough repair become necessary, and the master directs such repair, which amounts to more than the value of the ship, I think in that case the owner would be liable. 1 Term Rep. 75. Ash-urst, J. remarks, that Roccus lays it down as a rule, No. 32, that in all cases, owners are bound by the contract of the master. There are only two exceptions to the general rule, one in the case of hypothecation, where credit is given to the ship only, the other in the case of a ransom bill. Ib. 76. Buller, J. admits that the master can bind the owner by contracts made for # his *benefit, but not beyond the value of the ship and *3 J cargo. Ib. 77. And Lord MaNSField says, that as between the captors and the owners, the captain had a power to ransom as far as the value of the ship and cargo. Ib. 80.
    These authorities are highly respectable; and there can be no difficulty in pronouncing, that taking up reasonable sums in a foreign port at the usual interest on the master’s bills for repairs of the vessel, .provisions, &c., where it is absolutely necessary to raise an immediate supply of cash, is much more beneficial to the ship owners, than the hypothecation of their ships, at an extravagant profit to the lenders, depending on the contingency of their safe arrival.
    
      
      In Samsun v. Bragington, 1 Vez. 443, Sir John Strange, master of the rolls, said, this seemed to be a transaction at home.
    
   By the Court.

The first fact to be determined by the jury is, whether there existed a plain evident necessity, obliging the master to borrow money for repairs, provisions, &c. in order that he might prosecute his voyage. The proof on this head depends chiefly on captain Foster, of whose credibility the jury are the exclusive judges. He swears to the ship being detained at Rotterdam by an embargo, and the great need he stood in of money for necessary repairs, provisions, and seamen’s wages; that the 180I. 7s. 6d. sterling was fully expended on the vessel; and without that sum, he could not have prosecuted his voyage to London. The plaintiffs were bound to see, that the master had absolute occasion for the money for necessary repairs, and that the owner had no goods on board whereby the money might be raised: but if such occasion really existed, it could’ not be expected that they should inform themselves of the state of the accounts between him and his owner; because, on this head, all they could collect must necessarily be from the master. ■

So imperfectly is the settled account stated, that we cannot now conclude how the balance stood on the 31st August 1795, nor when the freight was paid to the captain, or paid over to George Barclay and Co.

It is worthy of observation, that Foster had a lien on the ■goods for their freight from Liverpool to Rotterdam, and as the contrary does not appear, we must presume that it was paid in the common course of trade, on the delivery of the cargo. Howard, one of the plaintiffs, was the supercargo, and bound for the payment of the freight. From this peculiar character, it must naturally have occurred to him, when the master applied to him for cash, to inquire what had become of the freight money. The 5251. had not been remitted to the defendant’s agents in London on the 15th August 1795; for of this they complain in their letter. And it would seem strange, either that the captain *should borrow money for repairs, when he had this p sum in his hands belonging to his owner; or remit the [*137 cash, while he was so greatly in need of specie for his vessel. In this view, the plaintiffs cannot be considered as mere strangers to Foster’s transactions.

A maritime question has been made at the bar, that though a master may in case of necessity hypothecate this vessel abroad for repairs, yet that he cannot in such case borrow money on the credit of his owner, and charge them personally thereby.

It must be admitted, that the law formerly was, as is stated by the defendant’s counsel; and so we held in 1792, in the case cited, But the late determinations have effected a variation in this particular. The power of the master of a ship to take money on hypothecation for necessaries for a ship while she is on the voyage, is said to be highly necessary,-and that convenience requires it. Per Ld. Chief Justice Kenyon. 3 Term Rep. 269. The power of stipulating an extraordinary profit to loaners of money in foreign ports, in cases of great need, depending on the event of the vessel’s safe arrival, seems well adapted to every exigency. But hypothecations at exorbitant rates of interest are certainly more disadvantageous to ship owners, than borrowing reasonable sums in parts abroad, on the credit of the owners, at the common rate of interest. To charge the owners in the latter mode, the occasion of borrowing should be clear and manifest, and the sums not extravagant, and the transaction to be consistent with the most perfect good faith.

If the Sophia was sold in London, at an increased price, on account of the money expended on her in Rotterdam, it is a very equitable consideration on the part of the plaintiffs ; and yet if the money was advanced on Foster’s credit, Crawford was not bound thereby. The case comes before us for decision, very imperfectly in point of proof. Why was not the bill of exchange duly sent forward to London, and offered for payment ? It would have led to immediate inquiries, which would have determined with certainty, the necessity and occasion of taking up money at Rotterdam. Some suspicion must arise on this head; but let it not weigh more than it deserves. The court will only add, that while juries should entertain a jealousy of ship captains improperly running their owners in debt, in foreign parts, they should not be unmindful of those foreigners, who advance bona fide, their money for our merchants abroad, and thus promote our interests as a commercial people.

Verdict for the.defendant.  