9. Liability of Owner.—
The owner is liable for all the contracts and negligence of the master up to, at least, the value of his interest in the ship. In most cases, he may limit his liability to such value by abandoning the ship to the creditors. This is an underlying doctrine of the general maritime law and generally carried forward into the statutes of all maritime countries. There is a general exception, however, in regard to sailors' wages. The owner remains absolutely liable for these and cannot limit against them. He is also liable for all his personal contracts in regard to the ship as well as for his personal negligence. He will not be liable for the contracts or torts of the master outside of the scope of his employment, as on a bill-of-lading for cargo never received on board or an unauthorized assault on a passenger.
An illustration of the liability of the owner for contract of the master within the scope of his employment is to be found in a case in which the master contracted for extra pilotage. As the United States District Court remarked in the Cervantes, 135 Fed. 573, "In pilotage cases resort may be had to the vessel or the owner or the master."
The case of Chamberlain v. Ward, 21 How. 548, illustrates the liability of an owner for the tort of the master. It grew out of a collision in Lake Erie and was an action in admiralty brought in personam by the owners of one of the vessels against the owners of the other for damages, alleging the negligent operation of the respondents' vessel. The Supreme Court (Clifford, J.) held:
Owners of vessels, and especially those who own and employ steamships, whether propellers or sidewheel steamers, must see to it that the master and other officers intrusted with their control and management are skillful and competent to the discharge of their duties, as, in case of a disaster like the present, both the owners and the vessels are responsible for their acts, and must answer for the consequence of their want of skill and negligence; and this remark is just as applicable to the under officers, whether mate or second mate, as to the master, during all the time they have charge of the deck. That the mate in this case was substantially without experience in navigating steamers, and utterly destitute of the requisite information to fit him to determine the proper courses of the voyage, are facts so fully proved that it is difficult to regard them as the proper subjects for dispute; and what is more, the master knew his unfitness when he started on the voyage, and stated before the vessel left Cleveland, to the effect that he was afraid he was going to be sick, and that he had no confidence in the mate. Some of the owners also distrusted his fitness when they employed him, and made an effort to engage another person in his stead; and one of them, after having heard of the disaster, expressed his regret that the person to whom he first applied had not taken his place.
The case of Hough v. Western Trans. Co., 3 Wall. 20, was a libel in personam against the owners of the steamer Falcon. The vessel, while made fast to libellant's wharf, took fire through the negligence of the master and crew. The fire communicated to the wharf, which was destroyed with the buildings on it and those adjacent. While the court held that the tort was committed on land and, not being maritime, the admiralty court was without jurisdiction, it upheld the principle of the liability of owners for the negligence of the master and crew as follows:
The owner of a vessel is liable for injuries done to third persons or property by the negligence or malfeasance of the master and crew while in the discharge of their duties and acting within the scope of their authority. It is upon this principle that the defendants are liable, if at all, to the libellants for the damages sustained. The circumstance that the agents were in the employment of the owners on board the vessel, and that the negligence occurred while so employed, and which occasioned the damage, gives to the libellants the right of action.
This is, indeed, simply the general law of master and servant or principal and agent.