Oakland Cotton Manufacturing Co. v. Jennings

NILES, J. — The defendant, a shipbuilder, was the general and registered owner of the schooner ‘ ‘ Greenfield. ’ ’ While so [718]the owner he appointed one Horton master. Subsequently he entered into an agreement with. Horton, by which it Avas agreed that Horton was to have the entire control, and possession of the schooner, to make all contracts in regard to the freighting and business, to engage her in any business he might desire within the inland waters of this state, to victual, man and run her at his own expense, and was to collect all the earnings and freight moneys, and pay to defendant one-third of the gross earnings at the end of each and every month, or as often as a settlement was had between them; the defendant to keep the schooner seaAvorthy and in repair. Subsequently Horton entered into a partnership with one Finney in the running of the schooner, and Horton and Finney made all contracts in regard to her business, and employed her as they saw fit and proper, and had entire and exclusive possession and control of her. ,

The plaintiff contracted with Finney, acting for himself and Horton, to carry certain goods. OAving to negligent stowage the schooner capsized and the goods were lost.

The case was tried by a jury. The counsel for defendant asked the court to give to the jury the folloAAÜng instruction: “If you shall find that the schooner ‘Greenfield’ was at the time of the accident employed under agreement with defendant by Captain Horton, the master thereof, on shares, and that Captain Horton at that time manned and victualed said vessel at his own expense, and paid all expenses of running her except for repairs, and employed her in carrying freight, he collecting the freight money and accounting to the owner only for the share of the latter, and that said Horton had at the time, by virtue of said agreement, exclusive possession and control of her, your verdict will be for the defendant. ’ ’

The court refused this instruction, and upon its own motion instructed the jury “that no arrangement that may exist between the general OAvner and charterer of his vessel as to the employment and custody of the vessel can affect third parties dealing Avith the master or charterer of the vessel, unless it is shown that they had received notice of such arrangement.”

These rulings are assigned by the defendant as error.

There is no doubt that the charterer of a vessel, who has by the terms of his contract, and assumes in fact, the exclusive possession, command and navigation of the vessel, either for a particular voyage or for an indefinite time, is the OAvner pro