Opinion
(Fall Riding, 1804.)
1. An owner of a vessel is liable for the contract of his captain. But if he parts with the management and control of the vessel to the captain upon a contract to receive part of the earnings of the vessel, he is discharged from his liability unless he himself makes the contract for taking in a cargo on freight.
2. For the loss of a cargo by the captain's mismanagement, damages should be given according to the value of the property at the port where it was received.
DEFENDANT owned a vessel which he had contracted with Noble to leave to his management and custody; that Noble should victual and man her, and take in freight when and where he thought proper, and should account for one-third of the profits to defendant. He took in a load, on freight, at New River, for Howard, to be carried to Wilmington, put into an intermediate port, took in more lading, (334) and thereby the vessel and cargo was lost.
It was argued for the defendant that the action lay against Noble, and not against Ross, under the above circumstances. Noble was the owner pro tempore, he being completely from under the control of Ross, who could not oblige him, whilst the contract lasted, to observe any directions Ross could give him. Defendant's counsel cited 2 Str., 1251, and the American Law Mercatoria, 103.
Ross continued to be owner notwithstanding this contract, and is liable for the undertakings and miscarriages of Noble. The case in Molloy, 229, 230, is not law, so far as it states the master only to be liable for a deviation or barratry.
There was a verdict for the plaintiff, and a motion made for a new trial, and on the appointed day was fully argued; and now, on this day, being near the close of the term, the Court gave judgment.
An owner is liable for the contract of his captain; and is discharged from his liability if he parted with the management and control of the vessel to the captain upon a contract to receive part of the earnings of the vessel. Here, however, the contract was made by the owner himself, with the plaintiff, which shows he still considered himself an owner. As to the damages to be recovered, the owner should not be charged but for the value of the goods at the port of reception. The case cited from 2 Burrows, 1171, and other cases upon the subject, the principles of which are analogous to the present case, seem decisive upon the subject, and there must, upon this ground, be a new trial, unless the plaintiff will remit the difference between the value at the port of delivery and that at the port of departure.
Plaintiff remitted accordingly, and had judgment for the residue.
NOTE. — See Murfree v. Redding, 2 N.C. 276; Harvey v. Pike, 4 N.C. 519.