delivered the opinion of the Court. The first objection in this case is, that as by virtue of the contract on which the master and crew engage in the voyage, they are to receive their pay out of the proceeds of the oil, they are joint owners and quasi partners, and so ought all to have joined in the action.
If this were the law, it would be found to be exceedingly inconvenient, and would, no doubt, entirely break up the peculiar mode of conducting these voyages, which have been found to be so beneficial to those who carry them on, and to the country. That every seaman should be tenant in common with all the other seamen, the master and the owners of the vessel, in all the oil which may» be taken on a whaling voyage, so that no action could be brought respecting it without joining all, and none could be sued without the whole, giving every seaman a right to discontinue the action, or to release the claim, or to receive payment for the whole, would be a state of things not suspected by the wise and enterprising men
The objection to the competency of the plaintiffs’ captain to testify, is sufficiently answered by his declaration under oath, in reply to an interrogatory by the defendant, that he had parted with all his interest and received a compensation therefor. If the defendant had desired to ascertain whether this was a binding transfer, he should have pursued his questions, so as to have brought the form of the transfer before the Court. It is not unusual for members of corporations to sell out their interest in order to testify ; and this fact is thought to be sufficiently proved by their declaration on the stand ; unless, upon further examination, it should appear that the transfer was merely pretended, or was not valid.
As to the custom of the trade under which the defendant’s captain made the contract, for the breach of which the action is brought, it appears to be of long standing, almost universal, and specially known to the defendant. If it be a lawful cus tom, he, as owner, is bound, because, with general instructions, a captain is presumed to have authority to conduct his voyage in reference to it ; he is certainly at liberty, if he is not bound, to act in conformity to it, and whatever he does pursuant to it, is done by him as agent and by authority. It is then the owner’s contract, and he is answerable if it be broken.
The custom must no doubt be lawful and reasonable ; u is lawful, if reasonable and useful. Perhaps there can be no better evidence of the reasonableness of a custom, than its antiquity and uninterrupted prevalence. This is a custom coeval with the trade in which it is used, and although every
The custom arose, probably, when the trade was puisued on a small scale, with smaller vessels and less numerous crews than are usual now ; but t seems to have kept its ground, notwithstanding the changes in these particulars. Every captain going upon such a voyage has a right to presume that his employers will justify, if they do not expect that he will make, contracts of this nature, which time has so long sanctioned.
The custom being then indisputably proved, and it being in no respect unlawful, the contract made under it having been unjustifiably broken by the defendant’s agent, he is responsible for the damages, unless the principal ground of defence is maintained, viz. that it is an essential part of the custom, that these bargains should be brought to a close in the seas where they are made, and that if broken there, no remedy exists for the suffering party. But so unreasonable a custom as this has not been proved ; if it had been proved as a branch of the custom upon which we have been remarking, it might render the whole void for its unreasonableness.
It would amount to this, that a bargain made between two captains for the mutual benefit of all concerned in the two vessels, might be faithfully performed by one, and if grossly violated by the other, he should have no redress, unless he sought it by force in distant seas, where no law or government existed to aid him; and the consequence might be, that a captain, after having received from his partner a contribution according to the custom, and afterwards becoming indebted, might return home with a portion of oil which ought in justice to have been delivered to bis partner. It is true, that there was no proof of a custom to settle controversies after-the vessels returned, but this is because controversies have rarely arisen. In the only instances in which the bargains made pursuant to the custom appear to have been broken, relief has been sought and obtained at home.
But there is no need of a custom to give a remedy under these circumstances. If the contract has been lawfully made and improperly broken, the right of action is immediately
Besides, if the master acts faithfully towards his owners, he will inform them under what circumstances he left the seas, and give them opportunity to retain enough of the proceeds to answer the demands which may be made upon them ; if he neglects to do this, he may be answerable to them for any loss they may sustain.
It is said, that as part of the custom proved, is, that if either vessel shall return full, no contribution shall take place, and as the defendant’s vessel did return full, the casus fcederis has not happened. But it is only when vessels separate accidentally, after making such a bargain, that this qualification applies. It would be absurd to say, that either party might defeat the right of the other by voluntarily refusing to perform the contract and withdrawing, after the right of the other has become fixed.
Judgment according to the verdict.
1.
See Abbott on Shipping, (4th Amer. ed.) 432, n. (1) ; Grozier v. Atwood, 4 Pick. 234.