John E. Nichols v. Mark A. Dewolf

1 R.I. 277

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1850
• Status: Published

Opinion

Greene, Chief Justice,

charged ¡the jury.

This is an action of .assumpsit upon a bill of lading, for eight thousand cigars received at Matanzas on board the brig Neptune, to be delivered at the port of Providence, the defendant being the owner of the Neptune. The declaration is against the owner as a special bailee, not as a common carrier. The bill of lading, upon which it is founded, was signed by the captain of the vessel, and this makes it important to consider the captain’s authority to bind the owner. The simple fact that he is the captain, does not .clothe him with the authority to bind the owner by signing a bill of lading for goods received on freight. ' He may have it either by .express delegation or it may be implied from the usual employment of the vessel. The captain of a vessel engaged in the freighting business, who is in the habit of receiving goods for hire and signing bills of lading, has authority to bind the owner as much as if the authority were expressly given. The owner cannot reap the benefit of the captain’s contracts without likewise being liable for the losses, if the contracts are made within the scope of the captain’s agency. But there are Various kinds of voyages. A man may send his vessel to procure a cargo on his own account, and in süch cases the master has no power to take freight; or he may send his vessel to get freight, and then the very business is to procure goods on freight and sign bills of lading, and the signature binds the owner. The vessel may be employed in both ways. She may be sent to procure goods on account of the owner, and if she be not fully laden on owner’s account, to fill up with goods itpon freight. By such incidental contracts for freight the owner is bound. Did the defendant’s vessel sustain this two-fold character. The bill of lading is not in and of itself evidence against the defendant. To bind the owner, the captain must have signed by express authority or by authority implied from the usual employment of the vessel or by a subsequent assent. The question in this case is, whether such an authority can be inferred from the usual employment of the vessel. If the captain was in the habit of taking goods on freight and of signing bills of lading, and the defendant knew this, the defendant ought not to be allowed to deny the captain’s authority. And this authority cannot be inferred from one'or two or three instances of such dealing ; but a sufficient number of such instances must be shown to prove ■ that in the sense of the law this was the usual employment of the vessel. If the captain, upon his own risk, was in the habit of taking small packages or boxes without giving bills of-lading, the owner is not bound. This is not unfrequently done by stage drivers and captains of Steamboats, who take small packages and receive the freight or compensation for carrying, without any liabili ty on the part of the steamboat or stage company. The jury will examine the evidence, to see what has been the employment of the vessel and the Usage of the captain in these particulars.

There is another 'fact 'important to be proved by the plaintiff-in connexion with this part of the case. The bill of lading in this case stipulates for the delivery of the cigars at the port of Providence. The plaintiff therefore must prove that the usual employment of the vessel had been for the captain to sign bills of lading for the delivery of such articles at the port of Providence. If a practice of the captain had been proved to sign bills of lading for articles deliverable at Bristol, this would confer no authority to sign bills of lading for Providence.

' The goods were shipped by Noyes & Jenks, the consignees of the defendant at the port of Matanzas. The plaintiff’s counsel contends Noyes & Jenks had authority to take the cigars on freight. The authority of the consignee to bind the owner extends only to such acts as are within the object of the consignment. Any contract or shipment made in the course of the business for which he is consignee, binds the owner. But a consignee, authorized to procure a return cargo on the owner’s ac_ •count, has no authority to procure freight ; and so conversely. Consignees may act in both capacities. The question here is, what was the authority of Noyes & Jenks ? If their business was simply to ship the return cargoes, they had no authority to procure freight ; but if their business was partly to procure freight, the defendant is bound by their acts. The authority of Noyes <fc Jenks must be to ship the cigars on freight, to the port of Providence. If you find the defendant liable, the next question is as to the extent of the liability. There are two kinds of ¡carriers. First, ¡common carriers, whose business is to carry for hire such freight as is offered. These ¡are responsible for all losses unless occasioned by the “ act of God or public enemies.” There are carriers who •act upon a special contract. The latter class are only hound ¡for ¡usual 'and ordinary care. Ordinary care is such ¡care as prudent men ordinarily take in their own business. It is for you to consider whether in this case the ■captain used ordinary care -; whether prudent men, .on the arrival of a vessel in the port of Bristol, would or would not have -left -her as this brig was left by the captain. And if you think the captain had .authority to bind the owner and did not use ordinary diligence you must find for the plaintiff. But if you think the captain had no ■-such authority, or, having such authority, used ordinary •care, you will find a verdict for the defendant.

Verdict for the plaintiff.