Polynesian., 1862-03-22
Ghe polpnesian.
Commercial Tribunal nj Hnvre.

MELcHERs & Co., at Honolulu, Us. ]. LEvAvAssEUR,
at Rouen.
Whereas ]. Levavasseur, on the 9th of October
1856, sent the ship Vile de Renes, from Havre on
whaling voyage, under the command OF LeguedOIs
having as second in command and fishing captain,
Mr. TrOude, both being entered in the Shipping Ar
tices as such He handed them letter of credit, de-
signed to provide for all wants that might manifest
themselves in the Of expedition submitted to
so many eventualties and a duration that could not
be exactly estimated.
Whereas after two successive and insignificant wha-
ling cruises, the Vile de Rees, for second time put
into port at Honolulu, where the Captain (LeguedOs)
having been discharged account OF sickness, was
superseded in his command by Troude by order OF the
Consul of France and Troude resolved to try the
chances of third cruise, which could only be effected
by repairing the vessel the provisions of which were
exhausted and the vessel herself by her long voyages
in bad condition he addressed himself therefore to
Melchers & Co., who consented tD advance him the
necessary funds and after regular examination, the
repairs undertaken, which amounted to 81 26O6I
francs covered by six drafts issued by Troude on
Levavasseur. The latter refused their payment and
they returned to Honolulu, where the Captain,
having returned from his last cruise. on the 10th OF
November by documents executed before the Consul,
conveyed the vessel and cargo of the debt
to Melchers Co., which, including interests, costs OF
protest, re-exchange and insurance premium, then
amounted in all to 1864 francs, the payment OF
which they now demand of J. Levavasseur
Finally the ship ViRe de Rennes left for France the
l1th December, 1862 but obliged to put into port
at Tacahnano where she condemned and her cargo
shipped to Havre, where it was sequestrated
| Whereas, ]. Levavasseur repels the proceedings
| against him, pretending
1st That Troude, having become Captain of the IHe
de ReaHes, in consequence of the withdrawal OF Le-
guedois had other order than to bring the vessel
back to France and that consequently he cond not as
he has done, undertake considerable repairs and still
| less a third seasons cruise.
| That MalcherS Il CO all authorized
by the letter Of credit to favor the particular views of
Troude who had neither right title to draw on the
| owner.
Sd. That finally, even if the owner was in any way
held obligations, contracted by Troude under the
circumstances in which the vessel placed at the
time the drafts amounting 81 ,26067 francs were
issued the latter by conveying the vessel and her cargo
security for the payment of the amount OF lI06b4
francs, has made substitution for the debt due TO
Melchers Co.. who have thus conferred their trust to
the vessel and cargo and not TO the person OF the
owner.
Whereas it is certain-in fact that order, in
structon, enoined upon TrOude to return to France,
in Leguedos should cease to command The vessel
for any whatsoever-as this argument other
wise inappcable to third parties, and which was not
thought of by Levavasseur the time Of his protesting
the 81 6067 francs therefore not seriously be EN-
poyed by him.
As this is not question of similar nature if a
captain deceased at sea is replaced by his second in
command whose functions only provsory and circum-
stanta naturally the arrival of the vessel at
| the port of destination; but 1t is a ques-
ton about a whaleship, la Vile de Retnes,
entered in port at Honolulu, where Leguedois
voluntarily resigned his functions into the hands of the
Consul of France, who charged with representing the
French au hOrities foreign land, and to watch over
the interests of the absent Investigated the matter and
by the authority vested in him. appointed Troude
Captain of the vessel, it is evident that from that
time TrOude was invested with the command right
fully as he had received the from the hands of
| J. Levavasseur himself
Whereas, the legally substituted captain exercises
the same rights and contracts the obligations
the first appointed captain
Whereas there does exist any relation analogy
between the expedition of vessel destined for whal-
ing voyage and that of ship dispatched to carry mer
chandise TO a certain point and return home with
cargo
As the last one, regulated beforehand by the in
sructions Of the by the obligations entered into
by the captain towards the shippers, by the route
which is prescribed and from which he is bound not to
depart, to certain degree be calculated as to Its
duration, as well AZ to its results.
And the first expedition the contrary, entirely
subject casualties and uncertainty Only
limited by the which it obtains as the captain
who commands freed from any kind OF rule concerning
the follow, absolute master Of its direction,
guided by his experience. perhaps. by his instinct,
is the only judge Of in what cruise, and unless
he has positive and formal orders to the contrary, Of
the duration of the voyage which he commands.
As it follows therefore, that if Troude whose first
two whaling seasons had been unsuccessful the last Of
which had received the approval of Leyavasseur, had
the right to try third he had the indsputabe right
also to put his vessel in a condition to undertake such
cruise, that to say, to procure the repairs which
she needed and to supply her with provisions.
In point of law Whereas. according TO Article 234
of the Commercial Code, the captain, during the voy
age represents the in everything relating to the
vessel and her cargo, and, consequently the acts to
which he gives his consent the loans which he con-
tracts for the necessities of the voyage bind the
conformably to Articles 1893 of the Code Napoleon
, and 216 of the Commercial Code.
As it is thus that the Court of Cessation has inva-
riably given the and sound Interpretation of the
Article 234 besides that this clearly follows from Ar
ticle 236 which that the Captain, who has un-
necessarily drawn money on the body, provisions or
outfit of vessel be responsible TO the owners, and per-
sonaly held refund II, which proves cleary-hrst,
that the owner is obliged reservng his redress against
the Captain to indemnify the third party to whom he
is engaged by the Captain who legally represents him
and secondly that the lender has neither t. preoccupy
himself with the use that may have been made of his
funds nor with the formaIites prescribed by Article
234 and unknown him unless to establish his prigi
ege but which, far the Captain Is concerned,
have no other object than to enable him to prove the
necessity OF the loan.
been contracted by the Captain behalf of the
to make repairs which, beneftting the vessel, in fact
benefited her owner also.
| As neither the mode nor the conditions Of the loan
are imposed by law as IL is the Captalh uuty 10
choose which will be the most advantageous TO him
Lvayasseur has the less to refuse the drafts Of
Troude as not only he had authorized them by the
letter of credit Of December 15 but he had paid
without any difficulty draft of II 1876 francs, drawn
on him by this Captain at the very tme when Iegue-
dos had still comma nd Of the Vle de RelHes.
Whereas, the advances, made to meet the wants Of
this vessel found their security and guaranty the
right with which the Law invests the captain to bind
his owner a right which far from being limited was on
the contrary confirmed by the letter of credit in which
Melchers s. Co. placed so much greater confidence,
since was calculated them upon the right OF
reina auishment which Leyavasseur thus did renounee