[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 531 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 533 The money was not borrowed for the purpose of providing a proper outfit for the vessel; to make repairs; nor to do other necessary things for an immediate voyage. She was out of commission and the plaintiff, who had been her captain for three years, had terminated that relation. It was used in paying a debt contracted about three years prior with David W. McLean's sons, for chandlery goods and ship supplies furnished to the bark "Commerce."
The question presented is whether a part owner of a vessel is legally responsible for the payment of money borrowed by a ship's husband to pay a prior indebtedness, although contracted for the benefit of the vessel? It is raised by exceptions taken to the refusal to dismiss the complaint, and to the direction of the judge to the jury, that Mrs. McLean was liable, if a part owner.
The powers of a ship's husband are determined mainly by usage and are defined in McCready v. Thorn (51 N.Y. 457, 458), as follows: "To provide for the complete seaworthiness of the ship; to see that she had on board all necessary and proper papers; to make contracts for freight, to collect the freight and to enter into proper charter parties; to direct the repairs, appoint the officers and mariners; to see that the vessel is furnished with provisions and stores, and generally to conduct all the affairs and arrangements for the due employment of the ship in commerce and navigation, and for all such purposes he is the agent of the owners and can bind them by his contracts." (See also 1 Bell's Comm. [5th ed.] 504; 1 Parsons on Shipping Adm. 109: Story on Part. § 418; 1 Parsons Mar. Law, 98.)
It will be observed that these duties have reference to the future employment of the ship, and her preparation for it.
Mr. Bell, in treating of the limitations of the power of a ship's husband, says:
"(1) That, without special powers, he cannot borrow moneygenerally for the use of the ship; though he may settle the accounts of the creditors for furnishings, or grant bills for them, which will form debts against the concern, whether he *Page 535 has funds in his hands or not, with which he might have paid them.
"(2) That, although he may, in the general case, levy the freight, which is by the bill of lading, payable on the delivery of the goods, it would seem that he will not have power to take bills for the freight and give up the possession and lien over the cargo, unless it has been so settled by charter party, or unless he has special authority to give such indulgence.
"(3) That, under general authority as ship's husband, he has no power to insure, or to bind the owners for premiums; this requiring a special authority.
(4) That, as the power of the master to enter into contracts of affreightment is superseded in the port of the owners, so it is by the presence of the ship's husband, to the knowledge of the contracting parties, that the ship's husband has been appointed." (1 Bell's Comm. [5th ed.] 504, 505.)
The courts have modified in some respects the limitations formerly existing and necessarily correspondingly enlarged the powers of the ship's husband.
In this state it has been held that a master has power to contract for repairs, even in a home port, if they were absolutely necessary. (Provost v. Patchin, 9 N.Y. 235.)
While formerly he was not permitted to borrow money, the rule was first so modified as to authorize the borrowing of money in foreign ports in case of necessity, and afterwards so as to include home ports, if the owner could not be communicated with, and the money was required immediately and for a specific purpose. (Rocher v. Busher, 1 Starkie, 23; Palmer v.Gooch, 2 id. 377-548; Johns v. Simons, 42 Eng. C.L. 743;Edwards v. Havill, 78 id. 106; Stearns v. Doe, 12 Gray, 482.)
And in McCready's case (supra), relied on by the court below in affirming the judgment, the rule was further extended, so as to permit the borrowing of money to pay for such supplies as the ship's husband would have authority to purchase on credit. In that case the ship's husband as such, had authority to purchase the articles, to pay for which he borrowed the necessary amount of money. *Page 536
And to the inquiry upon what principle is the one credit within, and the other without the implied authority of the agent, the learned judge responds none, except that suggested by the authorities, that the agent may dissipate and misappropriate the money. And this objection he guards against, by so qualifying the rule, laid down by the court permitting the ship's husband to borrow money, to pay for articles whenever the circumstances would permit him to purchase such articles on the credit of the owners, as to burden the lender with proving as a condition of recovery, that the money was not only borrowed for a proper purpose connected with the ship, or her navigation, but that it was actually applied to such purpose.
Our attention has not been called to any other case, which goes quite so far in support of the authority of a ship's husband to borrow money, and while we fully approve of the decision made, we do not regard it as applicable here.
The implied agency of the ship's husband, has only to do with the present, or future use of the ship. It is based on present and pressing necessity, occasioned by the dangers of navigation with a vessel out of repair, improperly rigged and inadequately provisioned.
Now this transaction, assuming as we must in view of the finding of the jury, the plaintiff's version of it, had not to do with the then necessities of the vessel, or its preparation for a voyage, for it was out of commission. If the ship's master had asserted otherwise, within the rule laid down in McCready's case the plaintiff would have been obliged to prove its application to such purpose. But he did not claim that it was to be so applied and in fact it was used to pay an old debt, of several years standing. For such a purpose a ship's master has no authority to borrow money at the charge of the owners.
On this appeal the respondent calls our attention to the evidence of Sarah C. McLean, which he claims conferred on David W. McLean special powers in addition to the implied authority belonging to him as ship's master.
Had the pleadings presented such an issue, the testimony to *Page 537 which he refers, considered in connection with the other evidence in the case, might have presented a question in that regard for the jury. But no such claim was made in the complaint; the cause was not tried on that theory; nor was any such question presented to the jury, or a request to that effect made.
It cannot, therefore, be made available to the plaintiff here.
The judgment should be reversed.
All concur.
Judgment reversed.