Callagan v. Hallett — 1 Cai. 104

Majority

p. 148

Callagan and others against Hallett and Bowne.

Headnote

A contract with a branch pilot of New-York to assist a vessel in distress foi a certain sum to be paid, is absolutely void.

Qua. If good anywhere.

After default a motion may be made in arrest of judgment, if on the face of the record it appear that the action was not maintainable.

This was an action brought by the plaintiffs, who were pilots of the port of Hew-York, to recover five hundred dollars agreed to be paid to them by the defendants for bringing from Barnegat the brig Heptune, which had been there driven on shore.

The declaration consisted of four counts: the first, an agreement with the captain on behalf of his owners; the second, on one with the owners themselves; the third, work and labor at the request of the defendants; the fourth,, a quantum meruerunt.

Judgment had gone by default, but on the execution of the writ of inquiry, the defendants had come in and examined witnesses.

Boyd

now moved in arrest of judgment, contending thai the action appeared on the face of the record not main tainable.

Pendleton, contra.

It has long been settled that the master may, when in distress, hypothecate either vessel or cargo for necessaries to prosecute his voyage. Moor, 918.^[1] 2 Ld. Raym. 984.^[2] Hoy, 95.^[3] A fortiori he may bind to his engagements, when the vessel must otherwise be lost. If, then, the action be maintainable, this can be the only tribunal; it cannot be in the admiralty, and the reason

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is, the court has jurisdiction in cases of hypothecation on account of the extraordinary interest, and because the contract is on the credit *of the ship or goods, [*105] and their safe arrival. Owners are not liable in the court of admiralty. 6 Mod. 79. They must, then, bo answerable here. Whether the contract was with the owners or the master, is immaterial; for the contract of the master is obligatory on the owner. 2 Moll. b. 2, 203, s. 4, 15, 213. If the master ransoms, the remedy is against the owner. Cornu v. Blackburn, Doug. 641, and in Yates v. Hall, 1 D. & E. 73, the plaintiff recovered on the engagement of the master against the owners, though the vessel, for payment of the ransom of which he remained as a hostage, was given up in satisfaction of the ransom bill. In addition to these authorities, the laws of the state render the contract valid.

Boyd, contra.

Principles of general policy, and the invariable leaning of the court, are against this action. The words of our law are conclusive. The species of contract in which the master can bind his owners, and the distinctions from this case, will appear to the court in 1 Salk. 35. 2 Dall 194 . 1 Bro. Parl. Cas. 284, and Abbott on Shipping.

The defendant moves 'in arrest of judgment. The declaration states,

1. That the defendants were owners of the brig Neptune; that the brig, when at sea and bound for New-York, was in distress; that the plaintiffs contracted with the master to bring her safe into port for 500 dollars; that they brought her in accordingly.

2. The like against owners.

3. The usual counts on a quantum meruit.

Three questions are raised:

1st. Whether the action is maintainable on the first count, which involves two questions.

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1. Could the master by such contract bind the owners ?

2. Was the contract lawful, the plaintiffs being branch pilots' belonging to the port of New-York?

2d. Can the defendants move in arrest of judgment after attending the execution of the writ of inquiry,^[2] and examining witnesses?

*3d. May not the court order an inquiry de nova on the third count, in the event of the first and second being held bad ?

The question of the right of the master to bind owners, it is not necessary to decide.

The legality of the contract is most material.

The act for the regulation of pilots and pilotage for the port of New-York, (sess. 7, c. 81, sec. 2 and 3,) makes it the duty of pilots to give all the aid and assistance in their power to any vessel appearing in distress on the coast, and for neglect or refusal subjects them to a fine or forfeiture of their places; but for the encouragement of such pilots who shall distinguish themselves by their activity and readiness to aid vessels in distress, it enacts, that the master or owner of such vessel shall pay to such pilot who shall have exerted himself for the preservation of such vessel, such sum for extra services as the master or owner and such pilot can agree upon; and in case no such agreement can be made, the master and wardens of the port are empowered to ascertain the reasonable reward.

It being made the duty of the pilots to assist the defendants’ vessel, it was oppression in them to exact the stipulation in question. It would lead to abuses of the most serious nature if such contracts, founded on such considerations, were held to be legal. There are several cases in the books tending to show the leaning of courts of justice against the oppressions of persons in public trust, and the illegality of exacting previous reward for doing their duty. The law allows them sufficient compensation for extraor

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dinary exertion after the service performed: which show? it was an object with the legislature to prevent undue advantages being taken. We are, therefore, of opinion, the first and second counts are bad, as contrary to public policy and the spirit of the act. As to the second question, whether it be too late to move in arrest of judgment after attending the execution of the writ of inquiry, we are of opinion the authorities adduced do not apply to questions on the merits, but only to formal defects in the pleadings.

.On the third point we are of opinion, on the authority of Eddowes v. Hopkins, Doug. 376,^[2] ,^[3] that the plaintiff may, on payment of costs, have (if he solicits it) an inquiry de nova on the quantum meruit, reserving the question, however, whether on such inquest he shall be entitled to more than his legal ^allowance, not [*107] having made the prescribed appeal to the master and wardens.

Judgment arrested.

(a) (a) See ante, Bogert v. Hildreth, page 4, r. (a), and Woods v. Van Ranken, post, 122,

[1] [1] See also, Postley v. Mott, 3 Den, 353 ; Hopkins v. Beedle, 1 Cai. R 347 ; livingston v. Rogers, 1 Id. 583.

Footnotes

(a) (a) Starke v. Cheeseman, Carth. 509.
(b (b ) Bridge v. Cage, Cro. Ja. 103. Stolesbury v. Smith, 2 Burr. 924.