Durando v. New York & Norwalk Steam-Boat Co.

4 N.Y.S. 386, 23 Abb. N. Cas. 56, 24 N.Y. St. Rep. 315, 1889 N.Y. Misc. LEXIS 340

• Court: City of New York Municipal Court
• Decided: March 27, 1889
• Status: Published

Opinion

McAdam, O. J.

Eor the purpose of maritime liens and the like, a vessel is treated as a legal entity, and demands are at times enforced against it for which the owner could not be charged in personam. The present action is in the latter form against the defendant as owner, and as it neither ordered the supplies, nor appropriated them to its own use after they were ordered, it •cannot be held liable to the plaintiff, except upon the familiar principles of the law of agency. The plaintiff proved that Adams, who ordered the beef from the plaintiff, was steward or cook of the two steamers, and that the goods were delivered on board of those vessels. This may have made out a prima facie cause of action against the defendant as owner. Flanders v. Merritt, 3 Barb. 201. But when it was proved that Adams was not the defendant’s agent or employe, but an independent contractor, in a dual capacity, to-wit, to feed the crew of both vessels at an agreed weekly rate, and as .lessee of the restaurant of the steam-boat City of Albany, under a contract to pay the defendant, as owner, $80 per month for its use, and that the beef was supplied to fulfill that contract, and was so used by Adams, whatever presumption previously existed against the defendant was destroyed, and the plaintiff’s case left unproved. By the demise of the restaurant to Adams, he became pro hoc vice the owner thereof, and alone liable for debts contracted for the purpose of running it. Webb v. Peirce, 1 Curt. 105; Mayo v. Snow, 2 Curt. 102; Fox v. Holt, 4 Ben. 290; The Metropolis, 8 Ben. 19; The Norman, 6 Fed. Rep. 406; Thomas v. Osborn, 19 How. 30; Hallet v. Insurance Co., 8 Johns. 212; Kenzel v. Kirk, 37 Barb. 120; Macy v. Wheeler, 30 N. Y. 239, 240. He was neither an agent nor servant of the defendant, but .acted on his own behalf as principal. There is no evidence that by general custom or usage stewards are authorized to contract for beef or the like, and •charge their boats therefor, so as to bind the defendant, even to a creditor having no notice of the agreement made under which the steward was acting; nor is there anything in the case from which an authority to charge it •can be implied. The defendant never paid bills contracted by Adams, never held him out as agent, and did nothing from which it could be inferred that he had any authority to bind it.

The proceeding not being in rem, it is useless to examine the decisions "bearing on maritime or state liens where the credit is given exclusively to the vessel, and where the authority of the master of a vessel to charge the owner Is sometimes implied, although the vessel has been chartered and is under the •control of others, (Vose v. Cockroft, 45 Barb. 58; Pendleton v. Franklin, 7 N. Y. 508;) for the master, as a rule, is the accredited agent of the owners as to •all who know nothing to the contrary, (Provost v. Patchin, 9 N. Y. 235.) A steward, on the other hand, is generally regarded as one of the crew, and may be merely a waiter on board the vessel, (Webst. Dict.,) and there is nothing in his title which ex vi termini gives him more implied authority to bind the vessel or its owners for supplies than any other member of the crew, and ■they have none. The power did not vest in the steward ex necessitate rel, for the owner was represented by its chosen agent, the master, who (apart from •the owner) has sole power to determine what supplies should be procured for the vessel, from whom, and the price to be paid for them. Ford v. Crocker, 48 Barb. 142. When it gets below the master, there is no implication of power to contract for the owner, and where debts are contracted by subordinates, the onus is cast on the creditor who seeks to enforce such claims against the vessel or its owner to prove, as in other cases of servants or agents, that, the subordinate had authority from the master or owner to perform the act, before either the vessel or owner can be held for the demand made. This authority must be established either by direct proof, by recognition of previous acts of a like character, or by the general custom or usage of the port authorizing the steward to exercise the power assumed. Ernst v. The Brooklyn, 22 Wis. 649. There is nothing in the ease showing that the steward had any power whatever to bind the defendant on the contract made by him. On the contrary, it clearly appears that he had pot. For these reasons, the judgment, must be reversed, and a new trial ordered, with costs to the appellant to abide-the event.

On the new trial, the question when Adams died, whether any and what, meat was furnished to the boats after his death, and on whose credit, the-value of sucli meat and the liability of the defendant therefor may be intelligently determined.