The plaintiff’s claim is founded upon the general liability of ship owners to respond in damages for the non-delivery of goods, which the master engages to transport ; and if no sufficient reason exists for exempting the defendants from this liability, under the circumstances of the present case, verdict ought not to be disturbed.
But it appears, that the defendants, who were the general owners, by a contract of charter-party, entered into previous to any contract made with the plaintiff for the transportation of his goods, had let the vessel to Jacob Wagner for the voyage in question ; and that the defendants, by that contract, were to have no concern, either in navigating the vessel, or in in the profits of the voyage. In pursuance of this contract of charter-party, the vessel was taken possession of, by Wagner, and the defendants had no concern in the voyage. The charterer of the vessel, according to the uniform language of writers upon mercantile law, became owner pro hac vice ; and the general owners ceased to have any controul or authority over the vessel, during the period of the charter-party. If they are liable to the plaintiffs at all, such liability cannot be founded, either on the benefit which the defendants might derive from transporting the goods safely, or from any authority they possessed over the master and crew. It was immaterial to the defendants, whether Wagner obtained more freight or less : for the price which the defendants were to receive for the hire of the vessel, would be neither increased nor diminished, by the *457amount of freight ; but depended entirely on the contract with Wagner.
It may be useful to review some of the leading authorities on this subject. In the case of Parish v. Crawford, 2 Stra. 1251. Abbott on Ship. 22. (or 25. of Story’s ed.) the defendant, who was general owner, had let the vessel to Fletcher, for the voyage, who was to have the freight of goods ; but Crawford was to have the freight of passengers ; and he appointed the master, and covenanted for his good behaviour. For the non-delivery of certain moidores shipped by Parish, the action was brought against Crawford ; and the question was whether he was liable, or the shipper must look to Fletcher and the captain. The court decided, under the circumstances of this case, that Crawford was liable ; and this opinion is not opposed to that now pronounced in this case. The opinion delivered by Ch. J. Lee, shews the grounds on which owners are held liable, and impliedly admits, that had the circumstances of that case been like this, the owner would not have been responsible. “ The true consideration,” says this judge, “ is whether, by any thing done, Crawford, in chartering it to Fletcher, has discharged himself from liability as owner. Crawford,” continues he, “ considers himself as governor of the ship, and so covenants for the government of it, during the voyage; and the ship was navigated by his master. Upon what foundation, then, is an owner chargeable, but upon these two considerations: First, the benefit arising from the ship, which is the equitable motive ; secondly, the having of the direction of the persons who navigate it? And it is upon these two things, taken together, that the implied contract arises.”
Neither of these reasons is applicable to the case under consideration. The defendants are not benefitted by the freight, which Pitkin engaged to pay Wagner ; for the compensation to the defendants for the use of the vessel, was not dependent on the amount of freight Wagner might obtain, but was equally due, whether Wagner obtained a full freight, or took the vessel in ballast to Virginia. Unlike the case of Parish v. Crawford, in another particular very material, here, the defendants neither appointed the master, nor employed the crew ; and, of course, had no authority or controul over one or the other. Neither of the two grounds, relied on in the above cited case for making the owners liable, exists in the present ; for here is no benefit to the defendants arising from the freight of the plaintiff’s goods ; *458nor have the owners the direction and controul of those who navigated the vessel.
It is true, that in the case last referred to, it is observed by the Chief Justice, “ that although Crawford had not that freight, which merchants pay for their goods, yet, as he has the benefit of the freight in general, he has that equitable motive, which makes him liable.” It is probable, that this remark, uncalled for by the case under consideration, may have led to those serious doubts, which have sometimes been entertained respecting the decision itself. It is not easy to comprehend, how a ship-owner, having let his ship for a certain time, or a certain voyage, and for a stipulated price, which can neither be increased nor diminished, by the quantity of freight, or any other thing, in relation to the transportation, can still be equitably interested in the transportation of goods taken on board by the charterer. The one contract being perfect and independent of the other, the owner can have no motive either in obtaining freight, or in carrying the goods taken on freight. It is worthy of remark, that the papers of the vessel continuing in the name of Crawford, was deemed of sufficient importance to he even mentioned, as one of the grounds, upon which owners are held responsible to the shippers.
In the case of Vallejo v. Wheeler, Cowp. 143. and other cases, it is decided, that a deviation made by the master, with the knowledge of the general owner, and which, therefore, could not, according to the law of England, be barratry as against him, is, nevertheless, an act of barratry with reference to a third person, who had hired the ship; and who was, therefore, considered as owner for the particular voyage. Vallejo v. Wheeler, Cowp. 143. Christie & al. v. Lewis, 6 Serg. & Lowb.Abr. 186. And, on the contrary, any act of the captain, with the privity of the charterer, cannot be barratry in reference to the latter. An attempt has been made to distinguish these cases from those where the question arises respecting the liability of owners for supplies furnished to the vessel, or for goods shipped, and not transported agreeable to the contract. Without fully discussing the grounds on which the distinction is attempted to be maintained, it may be proper to remark, that this distinction is totally rejected by English judges. In both the cases of supplies furnished to a vessel when let to hire, and of the charterer failing to convey goods on board the chartered vessel agreeable to the bill of lading, the general owners have been holden not responsible. In the case of James v. Jones, 3 Esp. Rep. 27. *459it was decided, that the general owners were not liable for the non-delivery of articles shipped on board a vessel, which was let to charterers: and in the case of Frazer v. French, 13 East, 288, before the court of Kings Bench, it was also holden, that the registered owners of a ship, having chartered her to the then captain at a certain rent for a number of voyages, were not liable for supplies furnished to the vessel by order of the charterer. The register acts, in that case, as the custom-house papers, in the present, were pressed into the service of the plaintiffs ; but lord Ellenborough observed, “ that the register acts were passed diverso intuitu ; but to say that the registered owner, who divests himself, by the charter-party, of all controul and possession of the vessel for the time being, in favour of another, who has all the use and benefit of it, is still liable for stores furnished by the order of the captain, would be pushing the effect of those acts much too far. The question is, whether the captain, in this instance, who ordered the stores, were, or were not, the servant of the defendant, who is sued as owner? And as they did not stand, at the time, in the relation of master and owner to each other, the captain was not the defendant’s servant, and therefore the defendant is not liable for his act.”
The supreme court of the United States has also adopted the same principles, and decided, that where the owner has parted with the entire controul and possession of the vessel, his liability as owner, for the time being, also ceases ; and vessels are placed on the same ground in respect to the owner's liability as other vehicles, such as wagons or stages used for the transportation of property.
These cases, though not of binding authority, are to be treated with great respect ; and I think the principles on which they rest, are as just and sound, as the source from which they proceed is respectable and enlightened.
The next question respects the admissibility of Wagner’s deposition. This was admitted at the circuit, on the supposition that it conduced to shew, that the written agreement between Wagner and the defendants, respecting the vessel, was intended merely for the purposes of delusion ; and that a parol agreement was entered into between them, which embraced the written contract, notwithstanding the real contract between the parties. Upon this idea, it was decided, that third parties had a right to prove what was the real contract between the parties ; arid that the voyage was conducted upon the principles *460stated in said deposition, and not in pursuance of the written contract. But upon a more careful examination of the deposition, it appears, that the argument of which Wagner speaks, was reduced to writing. If that agreement was not in truth the charter-party produced in evidence by the defendants, but another distinct written agreement respecting the same subject matter, such written agreement ought to be produced, and the contents of it cannot be proved by parol. But if Wagner, in his deposition, refers to the charter-party read in evidence by the defendants, as appears most probable, then his testimony was inadmissible, because it went to vary, construe or explain a written instrument ; neither of which ought to he permitted in be done, by parol testimony.
It remains to inquire, whether the verdict, these principles of law notwithstanding, was warranted by any testimony in the case ; or rather, whether the verdict is not so decidedly against the weight of testimony, that a new trial ought to be granted? No doubt, any false colours held out by the defendants, calculated to induce a belief that the vessel was to sail on their account, and under their direction and controul, ought to make the defendants liable to the plaintiff for the property shipped: and I am not certain, that any fraudulent intention on their part in holding out such colours, is necessary to be proved, in order to make them liable, provided their conduct is such as to induce a reasonable belief on the part of shippers, that the voyage is undertaken and prosecuted by them. But, in the present case, the court, after a careful examination of the testimony, bearing on this point, has come to the conclusion, that the facts relied on by the plaintiff, are not such, as either proceeded from any fraudulent motive, or ought to have induced the plaintiff or his agent to conclude, that the defendants had any direct concern in the voyage to Virginia.
It should be borne in mind, in considering this point, that the custom-house papers, which were on board this vessel, and which shewed the defendants to be general owners, did not prove that the defendants had any concern in this particular voyage. In deciding that the owner, when he lets his vessel for hire to the charterer, and surrenders both the possession of the vessel and controul of the voyage, is not liable to the shipper for property shipped on freight ; the court has decided, that this is all which the owner need do, to exempt himself from liability to the shippers of goods. To say, then, that because the custom-house papers remain unchanged, and because from them the defend*461ants appear as general owners, that this is holding themselves out, as concerned in the voyage in question, would be in effect saying, that, though the owner may charter his vessel, and divest himself of all controul over the master and crew, still the manner in which this was done in the present case, and must necessarily be done in all others, would render the owner liable as holding out false colours to the world. Such a principle of evidence, would at once defeat the rule of law, which we have endeavoured to establish; and which we consider of no small importance to the prosperity of commerce and the security of ship owners.
It can hardly be pretended, that the introducing Mr. Brainerd to Mr. Morgan as one of the owners of the schooner, is a fact of any serious importance in the case. It was a mere act of civility ; and it could hardly be expected, that because he was introduced as one of the owners, this should have made it necessary for Brainerd, either then or at any subsequent time, to disclaim any concern in the voyage. His being an owner did not necessarily imply any concern in the voyage ; and of course, it was unnecessary, if not improper, to disclaim it.
The natural inquiry, which Brainerd afterwards made, relative to the probability of obtaining freight, is a circumstance entitled to a little weight. It was an inquiry, which a passenger, one of the crew, or even an entire stranger, might have made, without implying that the person making the inquiry had any concern whatever in the voyage : and it would be a most alarming consideration, if such an inquiry, without any thing else, should incur the heavy responsibility of being liable to every shipper of property. Would it not be more reasonable, if the shipper of property was not satisfied with the responsibility of the captain, and found that the general owners took no part, either in navigating the vessel, or procuring freight, that he should satisfy himself, by inquiry of the owner, whether the voyage was really on his account, or whether the vessel was chartered? And if so, who, pro hac vice, was the owner?
I would advise that a new trial be granted.
Hosmer, Ch. J. and Brainard, J. were of the same opinion.