#### Abraham Reynolds *versus*Ebenezer Toppan.

To render the owner of a vessel liable for the contracts of the master, it must be proved that the vessel was in the employment of the owner, that the master was appointed by him, and that he acted, in making such contracts, within the scope of his a thority.

Case against the defendant, as owner of the schooner Margaret, for not delivering to the plaintiff one hundred barrels of flour received on board the said schooner by the defendant, at *Philadelphia,*and which he undertook to deliver to the plaintiff at *New York,*the dangers of the seas only excepted.

The action was submitted to the decision of the Court, upon the following facts agreed : —

On the 15th of May, 1817, the defendant was sole owner of the said schooner; and on the same day entered into an * agreement under seal with one *William, Marshall,*whereby he let and chartered the said schooner to the said *Marshall*for the season, on the following terms, *viz.:*The vessel to be at the risk of the defendant, and, after deducting the first cost of lumber or whatever she might carry, he was to receive two fifths of the net proceeds: the said *Marshall*to purchase the cargoes at his own expense ; to victual and man the vessel; and to pay the said two fifths, at the end of each trip, to certain agents of the defendant in *Boston*or *Salem,*as the cargoes should be discharged at either of those ports.

Upon this agreement being executed, *Marshall*took possession of the schooner, victualled and manned her, took the command of her himself, and made two voyages between *Massachusetts*propel and ports in the District of *Maine,*where he loaded her with lumber agreeably to the provisions of the said agreement. About the 1st of September, 1817, *Marshall,*without obtaining the defendant’s consent, or consulting with him, proceeded with the schooner to the southward, and there went from port to port. In January, 1818, he was in *Philadelphia*with the schooner, and offered to take freight for *New York.*The plaintiff put on board one hundred barrels of flour, and took *Marshall’s*bill of lading therefor in the common form, promising, for a certain agreed freight, to deliver the same at *New York. Marshall*sailed with the schooner for *New York,*but was driven by stress of weather to *St. Bartholomeiv’s,*where he sold the whole of the said flour, and, having repaired the vessel, returned with her to *Massachusetts.*The defendant never expressed his dissent or disapprobation of *Marshall’s*conduct in thus employing the vessel, nor did he reclaim the same, until after this action was *335commenced. The plaintiff has never received any compensation for the flour, or any part thereof.

If the defendant was answerable, in the opinion of the Court, the cause was to be sent to auditors, to ascertain the amount of the damages, and judgment be rendered on their report; otherwise, the plaintiff was to become nonsuit.

* *W. Sullivan,*for the plaintiff,

relied on the general principle that the owner of a vessel was liable for the undertakings of the master, in contracts of this nature. The register or enrolment of the vessel showed the defendant to be the owner, and the plaintiff was not bound to know, and had no means of knowing, the particular agreement between the defendant and *Marshall*in this case; nor, if he had, would it at all have varied his rights, as against the defendant. Besides, in this case, the owner and master were joint partners in the employment of the vessel, and were to divide the profits which were expected to arise out of the carriage of the plaintiff’s merchandise, for the non-delivery of which this action is brought.

*Gorham*and *Peabody*for the defendant.

Putnam, J.,

delivered the opinion of the Court. The plaintiff, having produced a regular bill of lading, signed by the master of the vessel, relies upon the general rule that the owner is answerable for the faithful performance of the contract.

This rule must be taken with its qualifications. It is not enough to prove that the vessel was owned by the defendant. It must appear, also, that she was in his employment. It must likewise be proved that the master was appointed by the owner, and acted within the scope of his authority ; for no one is answerable for the unauthorized acts and doings of another.

It is true that the title to this vessel was in the defendant; but, by the agreement between him and *Marshall,*the latter became the owner *pro hac vice.*She was in the employment of *Marshall,*and he directed when and where she should go. He had a right to act as master himself, or to appoint any other master. He also employed and paid the mariners, and the expenses of navigating the vessel. The defendant, for a season, had parted with his right to govern and manage the vessel; and *Marshall*cannot be considered as the defendant’s agent, or servant.

* It would be otherwise, if the owner had directed the voyage, appointed the master, employed the seamen, and had become answerable for their conduct. Such was the case of *Parish*vs. *Crawford,*
      (1) and of *M’Intire*vs. *Bowne.*
      (2) But *336in the case at bar, *Marshall,*who chartered the vessel, must be considered as the owner, according to the principles settled in the cases of *James*vs. *Jones & Al.,*
      (3)
      *Vallejo*vs. *Wheeler,*
      (4)
      *Oliver*vs. *Green,*
      (5) and *Frazer*vs. *Marsh.*
      (6)

The defendant may also contend, in this case, not only that *Marshall*was not the master of his appointment, but that he never employed the vessel to carry goods for hire. She was to be used in the coasting trade, in the transportation of such cargoes as *Marshall*should *purchase*and lade on board her. But *Marshall,*without any authority from the defendant, instead of buying cargoes, had taken them on freight. In the case of *Boucher*vs. *Lawson,*
      (7) Lord *Hardwicke*observed, that “it must appear that the ship was employed in that voyage to carry goods for hire. For any thing that appears, this ship might have been sent to *Lisbon*for a special purpose; and if so, no one could say that the master, by taking goods of his own head, could make the owners liable.”

Suppose an owner should send his ship from *Boston*to *Charleston, S. C.,*to take a cargo there belonging to him, to carry to *London;*and the master, instead of going to *Charleston,*should proceed to *New Orleans,*and take a cargo on freight; could it be supposed that the owner would, in this case, be answerable to the freighter or shipper of the goods ? In such a case, notwithstanding the master was appointed by the owner, yet the latter could clearly defend himself, on the ground that he never had employed, or authorized the master to employ, his ship to carry goods for hire.

From the facts in the case at bar, we are of opinion with the -defendant on both grounds; that *Marshall, pro hac** *vice,*is to be considered owner; and that the vessel has been employed for a different purpose than the defendant directed, (a)

*Plaintiff nonsuit.*

*Abbott on Shipping,*part 1, c. 1. — *Strange,*1251, S. C.

1 *Johns.*229

*Abbott,*ubi supra. — 3 *Esp. R.*27, S. C.

Cowp. 143.

3 *Mass. Rep.*137.

13 *East,*137.

*Cas. Temp. Hardw.*199,

**Vide *Abbott on Shipping,*ed. by Mr. Justice *Story,*pp. 23, 93 132