Kennedy v. Eilau — 17 Abb. Pr. 73

Majority

p. 73

KENNEDY a. EILAU.

New York Common Pleas;

General Term, Dec., 1863.

Headnote

Shipping.—Freight.—Action by Master.—Party in Interest.

The master of a ship is entitled to sue in his own name for freight, even though he is not the owner of the ship, and the hill of lading was not signed by him.

Appeal from a judgment of the Fifth District Court.

The plaintiff, James Kennedy, was master of the steamship “ City of Baltimore,” one of the vessels of the “Liverpool, New York & Philadelphia Steamship Company,” and brought the action as master of the vessel, for freight on merchandise, carried in that vessel from a foreign port, consigned to the defendants, David Eilau and another. The plaintiff, on the trial, proved that he was master of the vessel, the carriage by the vessel, the reception of the goods by the defendants under the bill of lading, and the amount of freight due. The plaintiff then rested. The bill of lading was not signed by the master, but by the agents of the vessel in Europe.

The defendant’s counsel moved for a dismissal of the complaint before the justice, on the ground that the plaintiff, not being a party to the contract, showed no right of action; which motion was granted, and judgment rendered for the defendants.

From this judgment the plaintiff appealed.

James W. Gerard, Jr., for the appellant.

I. The general principle is, that all persons having possession, have a right of action arising out of the possession of the goods. This is the rule as regards all bailees, agents, factors, carriers, auctioneers, &c. (Pars. Merc. L., 161; White a. Chouteau, 10 Barb., 202 ; Green a. Clarke, 12 N. Y, 343 ; Story on Bailm., § 585; Minturn a. Main, 7 N. Y., 220 ; 1 Smith’s Lead. Cas., Am. Notes, 481, and cases cited.)

II. Authorities—both in admiralty and State law—hold that the master also has a lien on the freight for his advances,

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charges, and even wages. (Abbott on Ship., 187, notes, Am. ed.; 1 Pars. Merc. L., 256.) He is liable also to the owners, if he deliver the cargo without the freight; and therefore, for his protection, has authority to collect it, and, of course, to sue for it. The master is also liable to the freighters personally for damages to the goods: he is considered also a carrier of the cargo. (Elliott a. Russell, 10 Johns., 1 ; 1 Pars. Merc. L., 384.) If he is liable to freighters on the goods personally,—e con- verso,—they must be liable to him for their part of the contract, i. e., payment of freight. (Clarkson a. Edes, 4 Cow., 470 .) All these implied personal obligations of the master to the owners of the ship and cargo, give him a right to sue for the freight-money. Actual advances or supplies by the master, are not necessary to create a lien in his favor on the freight. It exists for mere liability. (Ingersoll a. Van Bokkelin, 7 Cow., 670 .)

III. The above principles and law apply, whether the bill of ' lading (which is a mere piece of evidence) is signed nominatim or not, by the master.

IV. Even if there is any thing in the position, that the bill of lading (which was' introduced by the defendants) should be signed by the master, the fact that it is signed by general agents of the ship is sufficient. That binds the master, ship, and owners ; they are all carriers jointly ^nd severally, and can all (or one) be sued for injury to the cargo. A signature by agents binds principals, whether the principals are known or designated or not; and you can show by parol who are the actual ' principals and parties in interest, even on a written instrument signed only by the agent, without description. (Dykers a. Townsend, 24 N. Y., 57 .)

V. There is nothing in the Code to prevent the action being brought by the master. He is the party in interest, as entitled to possession of the freight and lien on it, as before shown, and therefore the party interested; and at any rate, under the cases, would be held “ trustee of an express trust,” as it is held that auctioneers and agents are trustees of an express trust. (Code, § 113.)

VI. It is a matter of public policy and mercantile necessity that masters should be allowed to sue. Otherwise, it would be impossible for ships, carrying a general or assorted cargo, to

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recovei* freight in different ports, and .to prove in each case the present ownership of the vessel, possibly by a multitude of owners in different parts of the world, constantly changing, and half the time unknown to the master.

Adolphus M. Petshaw, for the respondents.

The judge below dismissed the case, upon the ground that the master, not being the owner of the vessel, could not maintain an action in his own name to recover for the freight. In this he erred.

In Clarkson a. Edes ( 4 Cow., 470 ), Justice Woodworth stated that an action for the freight may be sustained in the name of the master on the bills of lading for the benefit of the owners and possessors of the vessel.

In Shields a. Davis (6 Taunt., 65), the objection was taken that the master who brought an action in his own name to recover for freight, was not the owner of the vessel. It was objected that in the declaration he averred that the goods were earned in his vessel, and as the evidence showed that he was merely the master, and not the owner, that the variance was fatal. But the court said that the master had a special property in the ship, because he had necessarily the control of it, and that the action was properly brought in his name.

In Ward a. Felton (1 East, 507), the master, who was not the owner,'brought an action in his own name for the freight; and in the elaborate discussion which the case underwent, the general right of the master to maintain such an action was not questioned either by counsel or by the court.

The master has a special interest in the freight. He may hypothecate it. (“ The Gratitudine,” 3 Chr. Robinson Ad. R., 196.) He has a lien upon it for any responsibility necessarily incurred on behalf of the vessel in a foreign port, which, after notice, he may enforce against the consignee, even though the latter may have paid the freight to the owner. (Gardner a. Ship “New Jersey,” 1 Pet. Adm. Dec., 227; Van Bokkelin a. Ingersoll, 5 Wend., 315 ; 7 Cow., 670 ; American Ins. Co. a. Coster, 3 Paige, 323.) As the general agent of the owner, in

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respect to ttie vessel and the voyage, he is authorized to collect it; and when collected, he has the right, as against the owner, to retain it for his wages or advances (Van Bokkelin a. Ingersoll, supra); and as master, he has a lien upon the cargo while it remains in his hands, and may retain it until the freight is paid. (2 Brown's Civ. & Adm. L., 82.) These rights and powers bring him within that class of persons who, having a special interest in the subject-matter, or thing, may always sue for it in their own name. (White a. Chouteau, 10 Barb., 202 .)

He is enumerated among this class in Brown’s excellent treatise upon Actions.at Law (p. 162), who says, “A captain of a ship for freight may sue in his own name to enforce a contract entered into by him as agent, as he has an interest in the contract.”

Without pursuing the subject further, it is sufficient, upon these authorities, to say that the master, in his character as such, may maintain an action in his own name to recover for the freight.'

The judgment should be reversed, with costs.

Footnotes

* Present, Daly, F. X, Hilton and Bbady, JJ.