Frederick Bristow, - Appellant; William Whitmore and Others-Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1861 |
| Date | 30 April 1861 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 781
House of Lords
Mews' Dig. xi. 570, 1016; xiii. 98, 102. S.C. 31 L.J.Ch. 467; 8 Jur. N.S. 291; 4 L.T. 622; 9 W.R. 621; and, below, Johns. 96; 7 W.R. 150. On point as to master's lien, distinguished in The Two Ellens, 1871, L.R. 3 Ad. and E. 359; and cf. The Feronia, 1868, L.R. 2 Ad. and E. 75; Tooth v. Hallett, 1869, L.R. 4 Ch. 246; and Merchant Shipping Act, 1894, s. 167.
Ship - Owner - Master - Lien - Freight - Mortgagee.
[391] FREDERICK BKISTOW,-Appellant; WILLIAM WHITMOEE and Respondents [March 4, April 30, 1861]. [Mews' Dig. si. 570, 1016; xiii. 98, 102. S.C. 31 L.J.Ch. 467; 8 Jur. N.S. 291; 4 L.T. 622; 9 W.R. 621; and, below, Johns. 96; 7 W.R, 150. On point as to master's lien, distinguished in The Two Ellens, 1871, L.R. 3 Ad. and E. 359; and cf. The Feronia, 1868, L.R. 2 Ad. and E. 75 ; Tooth v. Hallett, 1869, L.R. 4 Ch. 246 ; and Merchant Shipping Act, 1894, s. 167.] Ship-Owner-Master-Lien-Freight-Mortgagee. A master of a ship has no lien on the ship or freight for wages, or for any expenditure he may make in the ordinary discharge of his duties as master, however necessary for the performance of the voyage. But the case becomes one of ordinary principal and agent, where he makes a special contract, in itself ultra vires, in order to fulfil which, he incurs special expenses: if the owner adopts the benefit of that contract, he must, in equity, also bear its burthens. Where, therefore, the master of an ordinary seeking ship entered into a charter-party, under seal, to carry troops from the Mauritius to Eng^ land, and stipulated, on his own responsibility, in the charter-party, that he would make certain alterations in the ship, in order to enable him to carry the troops, and at the Cape of Good Hope entered into another charter-party, not under seal, to a similar effect, and made the specified alterations, and paid money, and drew bills to meet the expenses necessary to the making of these alterations, and the voyage was performed : Held, that in Equity, the master was first entitled out of the freight earned under these charter-parties to be repaid the sums advanced, and to be indemnified against the bills, and that the owner (or his mortgagee) was only entitled to the net freight after deducting these charges.-(Diss. Lord Wensleydale and Lord Chelmsford). In 1856 the Kenilworth, an ordinary seeking ship, of which J. B. Towse, of London, was the owner, and the Appellant was master, was at Port Louis, in the Mauritius. By a charter-party, under seal, dated 19th April in that year made between the Appellant and Commissary General Laidley on behalf of the Lords of the Admiralty, the Appellant undertook to convey certain officers and troop from Port Louis to Gravesend. The Appellant undertook to fit up the vessel, and to provide stores, etc., to the satisfaction of a Board of officers. The gross sum, to be [394] paid to Bristow amounted to 2138; and " for the due performance, etc., of all the said agreements on the part of Brfstow, he hereby binds and obliges himself, his executors, etc., and the said ship unto the Commissioners of the Admiralty in the penalty of 100 by these presents to be fixed and recovered." The fittings up were made, and the provisions put on board at a cost of 810 13si 9d., of which the Appellant paid from his own pocket 64 17s. 2d., and drew bills for the residue on Towse. 781 IX H.L.C., 39B BRISTOW V. WHtTMORE [1861] The ship sailed, and on the homeward voyage touched at the Cape of Good Hope, and on the 27th May 1856 the Appellant entered into another charter-party with Mr. Commissary Macgregor, acting at the Cape on behalf of the Lords of the Admiralty, for the conveyance of other troops to Gravesend, for which the sum of 1064 was to be paid. This charter-party was not under seal; the sum to be paid was not stated, as in the other charter-party, to be payable to Bristow, and there was no covenant by him to pay a penalty for non-performance. The fittings up and provisions put on board at the Cape came to 700 15s. Id., of which the master paid out of his own pocket 27 7s. 9d., and drew a bill for the residue on T'owse. The ship arrived at Gravesend in July 1856, and the troops were landed; the sums due from the Admiralty were not then paid, as there were different claimants for them. In April 1855, Towse had mortgaged the ship, and that mortgage had become vested by assignment in two of the Respondents, Robinson and Fleming. In July 1856, Towse had made another mortgage of the ship to two other of the Re spondents, Morris and Tbwne. On the 29th October 1856, T'owse, the owner, was declared bankrupt. An action was brought by the holder of the bill given at the Cape of Good Hope against the Appel-[395]-lant, and judgment .signed thereon; the holders of the other two bills also threatened him with proceedings to "recover- the same. . . ". ..... . . On the 21st May 1857 the Appellant filed his bill (which was afterwards amended) against Towse, his assignees, and the mortgagees, setting forth the above facts, arid praying to be repaid the sums he had advanced, and to be indemnified against the bills he had drawn, and for general relief. Answers were put in by the several parties, arid the Admiralty paid the money into court. The cause was heard before Vice-Chancellor Wood, who, on the 10th February 1859, made a decree declaring the Appellant entitled to the relief prayed (Johns. 96). The Respondents appealed to the Lord Chancellor, Lord Chelmsford, who heard the case, but delivered up the Great Seal before giving judgment, and, therefore, under the 15 and 16 Viet: c. 80 gave in his written judgment to the registrar, by which judgment the decree of the Vice-Chancellor was ordered to be reversed, and the Appellant's bill dismissed without costs (4 De G. and Jo. 325). The present Appeal was then brought. Sir H. Cairns and Mr. Baggallay for the Appellant.-It is admitted as the general rule that the master has no lien on the freight for ordinary disbursements made for the ship, and therefore the authority of Wilkins v. Carmichael (Doug. 101), Hussey v. Christie (9 East, 426), Smith-v. Plummer (1 Barn, and Aid. 575), and Atkinson v. Cotesworth (3 Barn, and Cr. 647), is not disputed ; but those cases do not apply to the present. Here a special contract, out of the ordinary course of the ship's employment, has been made; to carry it into effect (which by one of the charter-parties, the master specially [396] and personally bound himself in a penal sum to do), it was necessary to incur special expenses. By them he has introduced into the ship fittings up which are the property of the owner, and to do this he has made payments, and incurred liabilities. He is entitled to be repaid the former, and to be indemnified against the latter, for the owner has adopted the contract. If an agent, without express instructions or general authority, enters into a particular contract, and incurs expense in fulfilling it, the principal may disavow it altogether; but if he accepts and takes advantage of the benefit, he must be treated as having authorised it from the first, and becomes subjected to its burdens, Phene v. GUlan (5 Hare, 1). [Lord Chelmsford: The case was not argued before me as one out of the ordinary duty of the master; on the contrary, it was treated as one in which he had made these contracts under his ordinary authority.] They were contracts of a special nature, and on the first of these charter-parties the master alone could sue or be sued. It was a contract under seal, with a covenant rendering himself personally liable in a penal sum for non-performance. The owner might therefore have repudiated it, and thrown the whole burden of it on the master, which he could not do with respect to an ordinary contract made in the usual course of a master's duty. The mortgagees stand precisely in the situation of the owner. Assuming this argument to be correct, and the owner to have adopted the contract, then it is clear that the freight is primarily liable to discharge the expenses and the liabilities thus specially incurred, Green v. Briggs (6 Hare, 395). [Lord Wensleydale: Freight is paid for the use of the ship as improved. It can make no 782 BRISTOW V. WHITMORE [1861] IX H.L.C., 397 difference that the [397] improvement is greater than usual.] This is a special contract ; in one case the payment is to be made, not generally as is the usual course, but to the Appellant as owner, and in the other to himself by name. By adopting the contracts, the owner adopted these stipulations in them. If the payments were made to him, the master would have a right to deduct these disbursements. It was said in the Court below that the master might have met these extraordinary expenses by hypothecating the ship. That would have saved him from personal responsibility ; but if he pursued the other and less expensive course, the course more beneficial to the owner, and the owner adopted what he had done, no question as to what might have been done by hypothecation can arise. On landing the troops at Gravesend, the freight on these special contracts was earned, and the master's right to indemnity was then complete, and could not be afterwards affected by the vessel earning other freight on its arrival in London, when it was taken possession of by the mortgagees. Mr. Amphlett and Mr. Honyman. (Mr. Edward Macnaghten was with them) for the Mortgagees.-The master has here no lien at law, Hussey v. Christie (9 East, 426), Smith v. Plwmmer (1 Barn, and Aid, 575), Atkinson v. Cotesworth (3 Barn, and Ores. 647), and consequently none in equity, Gladstone v. Birley (3 Maule and S. 205; 2 Mer. 401), Buxton v. Snee (1 Ves. 154), for the payments he has made in cash, or for the bills. As to the latter, the holders of the bills ought to be parties to the suit. [The Lord Chancellor: But they may sue the master, and he asks...
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