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There can be no doubt that the master is bound to employ the telegraph as a means of communication where it can usefully be done, but in this case the state of the particular telegraph, the way it was managed, and how far explanatory messages could be transmitted by it, having regard to the time and circumstances in which the master was placed, were proper subjects to be considered by the jury, together with the other facts, in determining the practicability of communication.
The necessities which may arise in the course of the voyage are innumerable and can hardly be classified, but the settled and reasonable rule is that the power corresponds to the necessity at hand. By the contract of carriage, the shipper and consignee impliedly authorize the master, when he cannot obtain instructions, to do everything within the general scope of his employment which a rational man of business might believe that a rational owner would certainly do for himself if he were present under the circumstances at hand. And even if the acts of the master were beyond the ordinary scope of his authority, they may be ratified by his principals and every ratification is the equivalent of an original specific authority. So, while it is a general rule that an agent may not delegate his authority the master may, in proper cases, appoint another in his place and stead; and such appointee will have the like powers as the original master. Circumstances may even arise where the master may sell the cargo though the owner may be in port and does not approve his action. Thus in the case of the Brewster, 95 Fed. 1000, the ship had a cargo of coal. After commencing her voyage she was forced to put back in port. Part of the coal had become wet and liable to spontaneous combustion; it being dangerous to proceed with it, the master tendered it to the shippers, who refused to receive it. He thereupon sold it. The Court upheld his action as being for the general good of the ship and cargo. This, however, was in the exercise of the master's duty to protect the safety of the whole ship and must not be understood as modifying the rule that the master, when no considerations, except those relating to cargo, are in question, may not substitute his judgment for that of the owner of cargo, where the owner's will is ascertainable. It should be noted that all the master's powers in regard to the cargo depend on the necessity for their exercise and that, as long as that does not arise, he is really a complete stranger to the cargo between lading and discharge. While the voyage prospers he is only to carry it and must not intermeddle in any way.
9. Power to Sell Vessel.—
Under like circumstances of necessity, the master may sell the ship herself, on a home shore as well as abroad, although never in the home port. Good faith and overwhelming necessity must concur. For his own protection, he should have a thorough examination made by competent surveyors and their sworn report stating her condition and advising a sale. In some places, this may be accomplished through a court of admiralty and this is the safest way.
This subject has been discussed more fully under the caption "Title and Transfer," § 16, "Sales by Master." The case of the Amelie, 6 Wall. 18, there quoted, is the leading case. It should be observed that, if the exigency is not too urgent to admit of the necessary delay, the master is bound to communicate with the owner before selling the ship, and the purchaser is bound to know the circumstances so far as he can ascertain them by reasonable inquiry. He will not acquire a good title if the emergency did not justify the sale, provided he could have so ascertained by investigation.
10. Power to Create Liens.—
This power is very broad. The master has an implied power to pledge the ship for all her necessities and thus to create all classes of contract liens upon her in the absence of the owner. The order of their priority is governed by the rules applicable to all maritime liens (see Chapter IX). He may create liens of materialmen for supplies, work, labor and repairs; of sailors for their wages; for all necessary services rendered the ship; advances of money; dockage; towage; and the like. So he may, involuntarily create liens upon her for torts, as by negligent carriage of cargo, collisions, or personal injury. The leading exposition of law on this subject is that of Justice Story in the early case of the Aurora, 1 Wheat. 96, decided in 1816, wherein it was said:
The law in respect to maritime hypothecations is, in general, well settled. The master of the ship is the confidential servant or agent of the owners, and they are bound to the performance of all lawful contracts made by him, relative to the usual employment of the ship, and the repairs and other necessaries furnished for her use. This rule is established as well upon the implied assent of the owners as with a view to the convenience of the commercial world. As, therefore, the master may contract for repairs and supplies, and thereby, indirectly, bind the owners to the value of the ship and freight, so, it is held that he may, for the like purposes, expressly pledge and hypothecate the ship and freight, and thereby create a direct lien on the same, for the security of the creditor. But the authority of the master is limited to objects connected with the voyage, and, if he transcends the prescribed limits, his acts become, in legal contemplation, mere nullities. Hence, to make a bottomry bond executed by the master a valid hypothecation of the ship, it must be shown by the creditor that the master acted within the scope of his authority; or, in other words, it must be shown that the advances were made for repairs and supplies necessary for effectuating the objects of the voyage, or the safety and security of the ship; and no presumption should arise that such repairs and supplies could be procured upon any reasonable terms, with the credit of the owner independent of such hypothecation. If, therefore, the master have sufficient funds of the owner within his control, or can procure them upon the general credit of the owner, he is not at liberty to subject the ship to the expensive and disadvantageous lien of an hypothecatory instrument.