Thomas et al. v. Osborn.
2 Par. Col., 186, note 3; 52, note 1; 49, note 4; and the chapters there referred to.
It is true the master cannot bind the general owners personally for supplies which he, as charterer, was to furnish. (Webb v. Pierce, 1 Curtis, 110.) Neither could he bind them beyond the value of their shares in the vessel, under the ancient maritime law. (Consulat, ch. 34, 239, and Pardessus’s note, vol. 2, p. 225.) Emerigon is of opinion that the effect of the French ordinance is the same. (Con. à la Grope, ch. 4, sec. 11.) In our law, if the master is the agent of the owners, his contracts are obligatory on them personally. When he acts on his own account, he does not create any obligation on them. But it does not follow that he may not bind the vessel. In Hickox v. Buckingham, 18 How., it was held that contracts of affreightment entered into by the master, within the scope of his apparent authority as master, bind the vessel to the merchandise for the performance of such contracts, wholly irrespective of the ownership of the vessel; and whether the master be the agent of the general or special owner—and this upon the principle that the general owner must be presumed to consent, when he lets the vessel, that the master may make such contracts, which operate as a tacit hypothecation of the vessel. And so in this case, we think, the general owners must be taken to have consented that, if a case of necessity should arise in the course of any voyages which the master was carrying on for the joint benefit of themselves and himself, he might obtain, on the credit of the vessel, such supplies and repairs as should be needful to enable him to continue the joint adventure. This presumption of consent by the general owner is entertained by the law from the actual circumstances of the case, and from considerations of the convenience and necessities of the commercial world.
But the limitation of the authority of the master to cases of necessity, not only of repairs and supplies, but of credit to obtain them, and the requirement that the lender or furnisher should see to it, that apparently such a case of necessity exists, are as ancient and well established as the authority itself.
In some of the old sea laws, they are declared in express terms, as they were in the Roman law: Aliquam diligentiam in ea re creditorem debere præstare, D. 14, 1, 7; navis in ea causa fuisset ut refici deberet, D. 14, 1, 7. And in the Consulat del Mare, ch. 107, “But the merchant should assure himself that what he lends is destined for the use of the ship, and that it is necessary for that object.”
A reference to the other codes cited above will show that a case of necessity was uniformly required; and the commenta-
