Somes v. White

• Decision Date: 18 April 1876
• Parties: THADDEUS S. SOMES et als. v. HENRY L. WHITE et als.
• Court: Maine Supreme Court

65 Me. 542

THADDEUS S. SOMES et als. v. HENRY L. WHITE et als.

Supreme Judicial Court of Maine.

April 18, 1876

1875.

ON FACTS AGREED.

CASE commenced September 25, 1873, against the defendants, as general owners of the schooner " Midnight," in favor of the plaintiffs, as general owners of the schooner " Thames."

It is agreed that both vessels were sailed on shares by their respective masters, and under their control, as is customary in such cases in this state; and the question submitted is whether, under such circumstances, an action for collision by the general owners of the " Thames," against the general owners of the " Midnight," can be maintained in this court.

If maintainable, the action to stand for trial; if not plaintiffs to be nonsuit.

A Wiswell & A. P. Wiswell, for the plaintiffs.

E. Hale & L. A. Emery, for the defendants.

PETERS J.

The case finds that the master had the control of the defendants' vessel, sailing her on shares. Nothing else appearing, this would constitute him an owner thereof, pro hac vice. This has ever been the doctrine of this court. For recent adjudications affirming the principle, see Bonzey v. Hodgkins, 55 Me. 98; Tucker v. Stimson, 12 Gray 487.

The plaintiffs admit it to be well settled, that in such a case the general owners are not, ordinarily, liable for the contracts made by the master concerning the sailing and management of the vessel. But they contend that in case of collision they are liable for the master's fault or negligence. They argue that there is a reasonable distinction between claims against owners for the acts of a master arising from his contracts and such as are founded strictly in tort.

We do not assent to the correctness of the position of the plaintiffs. We do not perceive by what principle or rule of law it can be maintained. A personal liability of owners for the master's defaults, certainly must depend upon the fact, whether the relation of master and servant (or principal and agent) exists between themselves and the master or not. The liability must arise under the maxim respondeat superior if at all. But where the master is owner pro hac vice, no such relation exists. That is the very point established in the cases before referred to. Those cases turn upon the exact finding, that the master is not the agent or servant of the owner. Claims against the owner for the obligations of the master, whether arising ex contractu or ex delicto, stand upon the same foundation; when this is removed there can be no liability at all.

The plaintiffs seek to avoid the effect of this reasoning, by attempting to draw a distinction between the liabilities attaching to the possession and control of ponderous property like a ship and articles of ordinary consequence like a carriage or coach. The argument is, that the general owners can be easily ascertained; that their names are upon the papers of the ship; that third persons can protect themselves, in dealing with the captain, by caution and inquiry, as far as contracts are concerned, but cannot protect themselves against the negligence and fault of the master in the conduct of the vessel, and that upon the grounds of public convenience and policy the apparent owner should be liable therefor.

But the argument is more plausible than sound. There was formerly an inclination in the courts to apply such a rule to the owners of real estate occupied and controlled by tenants, and for the same reasons that are urged for its application in the case of vessels. But, as applied to real estate, the doctrine has been rejected of late years by most courts, and emphatically so by our own court in Eaton v. E. & N. A. R. R. Co., 59 Me. 520. Still, there is more reason for adopting the policy contended for, in the matter of real estate than in that of vessels. We do not see why the owners of the vessel, who are out of the possession and control of her, should be liable for injuries caused by collision, any more than the owners of the cargo should be liable therefor. And it is always conceded, even in the courts of admiralty, that the owners of cargo are not liable to any extent in such a case, notwithstanding the vessel at the time of the collision is pursuing a voyage under a charter-party with the owners of the cargo and carrying their property alone. But the master, while owner pro hac vice, is no more the agent of the general owners of the vessel, than of the owners of the cargo. Both the vessel and the cargo are under his possession and control for the time being. By the maritime law, the vessel is made a surety for the protection of all persons against the negligence of the master while conducting the vessel, when he is the charterer thereof, and that would seem to be protection enough. The exigencies of trade and commerce require no more.

The present statutes of this state and of the United States affecting the rights and remedies pertaining to ownership in vessels, (which we have no space for here,) strongly militate in their force and effect against the argument of the plaintiffs. See R. S., of Maine, c. 36, §§ 5 and 6. R....